Santiago v. Williams et al

Filing 15

MEMORANDUM Opinion and Order: For the foregoing reasons, Santiago's petition for a writ of habeas corpus is denied. The Court also declines to issue a certificate of appealability for any of the claims in the petition. Civil case terminated. Signed by the Honorable Thomas M. Durkin on 1/27/2017:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DIEGO SANTIAGO, M09479,
No. 15 C 5798

Petitioner,

Judge Thomas M. Durkin

v.
RANDY PFISTER, Warden,
Stateville Correctional Center,
Respondent.

MEMORANDUM OPINION AND ORDER
Diego Santiago was convicted after a jury trial of first degree murder and
unlawful discharge of a weapon. See R. 1 at 1. He is serving consecutive prison
terms of 30 and 25 years at the Stateville Correctional Center in Illinois, where he
is in the custody of Warden Randy Pfister.1 See id. at 7. Santiago seeks a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See R. 1. The Warden has answered
the petition seeking its dismissal. R. 6. For the following reasons, Santiago’s
petition is dismissed and the Court declines to issue a certificate of appealability.

Tarry Williams was the Warden of Stateville Correctional Center when Santiago
filed his petition. See R. 1. Randy Pfister is now Stateville’s Warden where Santiago
still resides. See the Stateville webpage, https://www.illinois.gov/idoc/facilities/
Pages/statevillecorrectionalcenter.aspx (last visited Jan. 27, 2017). Accordingly,
Warden Pfister is substituted as the proper respondent. See Rule 2(a) of the Rules
Governing Section 2254 Cases; Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004)
(“[T]he proper respondent is the warden of the facility where the prisoner is being
held.”); see also Bridges v. Chambers, 425 F.3d 1048, 1049 (7th Cir. 2005).

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Background
I.

Facts
Epifano Santos, a gang member, was murdered on December 28, 2006.

Miguel Adorno and Martin Logan, members of a rival gang, were arrested shortly
thereafter and each gave statements to the police, which were videotaped. Adorno
told police that he and Santiago were in the same gang, and that Santiago had an
ongoing feud with Santos. On December 28, Santiago’s gang and Santos’s gang had
been fighting. Later that day, Santiago, Adorno, Logan, and other members of their
gang met at Santiago’s house. Santiago received a phone call from his girlfriend,
Lisa, who is also the mother of Santos’s child. Adorno overheard Santiago tell Lisa,
“stop putting my name in shit, bitch, ‘cuz you’re going to see what’s going to happen
to him.” Santiago got a gun and left with Adorno, Logan and the others to find
members of Santos’s gang to fight with. They found Santos and another member of
his gang, Rene Otero, at the corner of Armitage and Tripp. Adorno and Logan
struck Santos, knocking him to the ground. Santiago then shot Santos twice in the
head. The details of Logan’s statement were essentially the same as Adorno’s.
Adorno and Logan both pled guilty to conspiracy to commit murder in
connection with Santos’s death. They both gave testimony at their plea hearings
that was substantially similar to the statements they had previously given to police.
At Santiago’s trial, however, they testified that they could not remember their prior
statements and testimony. Instead, they testified that Santiago was not present
during Santos’s murder and that another member of their gang named “Casper”

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had killed Santos. Nevertheless, Adorno’s and Logan’s prior statements were
admitted substantively at trial.
Another of Santiago’s fellow gang members, Carlos Garcia, testified that he
participated in the fight that resulted in Santos’s murder. He testified that he saw
Santiago during the fight in possession of a gun. He also saw Santiago walk toward
Santos while Santos was on the ground. Garcia then heard gunshots but did not see
the shots being fired.
Otero also testified that he saw Santiago armed with a gun. Like Garcia, he
saw Santos on the ground, and heard, but did not see, the shooting.
II.

Procedural History
Through counsel, Santiago made two claims on direct appeal: (1) “the State’s

introduction of two separate prior statements by both Miguel Adorno and Martin
Logan was improper because it was cumulative and unduly bolstered their
statements”; and (2) evidence that Adorno and Logan pled guilty “should have been
excluded because it improperly suggested to the jury” that Santiago was also guilty.
R. 7-3 at i-ii. Santiago conceded that he had not preserved these issues in the trial
court. Id. at 33. But he argued that the appellate court should excuse his forfeiture
of these issues under Illinois’s plain error rule. The appellate court stated that
“[p]lain error review is warranted when the evidence is closely balanced or the
unpreserved errors deprived the defendant of fundamental fairness.” People v.
Santiago, 949 N.E.2d 290, 293 (Ill. App. Ct. 1st Dist. 2011) (citing People v. Herron,
830 N.E.2d 467 (Ill. 2005)). Applying that rule, the appellate court held that the

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evidence presented at Santiago’s trial was not closely balanced, and that Santiago
had not identified any error at trial. See Santiago, 949 N.E.2d at 293. Thus, the
appellate court held that Santiago’s forfeiture of the issues he raised on appeal
should not be excused. Id. The Illinois Supreme Court denied Santiago’s petition for
leave to appeal. See R. 7-7.
Santiago then filed a pro se postconviction petition in the circuit court raising
multiple claims, only two of which he continued to raise in the appellate court. See
R. 7-23 at 44-53. On an appeal made through counsel, Santiago’s postconviction
claims were reduced to the following: (1) “trial counsel was ineffective for failing to
present Santiago’s parents [as] alibi witnesses;” and (2) “trial counsel was
ineffective for not calling witness Annette Vega[,] [who was present during the
fight, and] who failed to identify Santiago in a police lineup,” despite referring to
her in his opening statement. See R. 7-8. The appellate court held that Santiago
could not establish prejudice from trial counsel’s failure to call his parents as
witnesses because, in light of the statements or testimony from Adorno, Logan,
Garcia, and Otero that Santiago was present during the fight, there was not a
“reasonable probability” that the testimony of Santiago’s parents that he was with
them at the time of the fight would have “changed the outcome of the proceedings.”
People v. Santiago, 2014 WL 3002498, ¶ 22 (Ill. App. Ct. 1st Dist. June 30, 2014).
The appellate court explained further that “there is no reasonable probability that a
jury would have believed [Santiago’s] assertion that he was not even at the crime

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scene given the substantial evidence showing, to the contrary, that he was not only
at the scene, but was guilty of shooting the victim in the head.” Id.
The appellate court also rejected Santiago’s claim regarding trial counsel’s
failure to call Vega because Santiago “failed to include a sworn affidavit by Vega
showing her potential testimony, availability, and [Santiago] did not explain his
failure to attach such an affidavit,” as is required by 725 ILCS 5/122-2. The
appellate court held further that the “police report stating that Vega viewed [a] lineup and was unable to make a positive identification of the shooter is not in and of
itself enough to meet the requirements” of 725 ILCS 5/122-2. Id. ¶ 23.
Santiago’s petition to this Court makes the following 18 claims:
(1) “Due Process: trial court denied motion to determine
reliability of witnesses[;] State obtained grand jury
indictment through perjury/fabricated testimony[;] State,
at trial, made improper arguments to jury. Court denied
motion to determine reliability of witnesses and prior
inconsistent statements were sole evidence of Defendant’s
guilt at trial”;
(2) trial counsel was ineffective for failing to call
Santiago’s parents;
(3) trial counsel was ineffective for failing to call Vega;
(4) trial counsel was ineffective for stipulating to the
admissibility of excerpts of Adorno’s and Logan’s
statements to the police;
(5) trial counsel was ineffective for inadequately exploring
the lack of video surveillance of the incident;
(6) trial counsel was ineffective for failing to investigate
evidence found at the crime scene;

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(7) trial counsel was ineffective for failing to object to a
map showing the short distance between Santiago’s house
and the crime scene;
(8) trial counsel was ineffective for failing to orally argue
for a new trial;
(9) trial counsel was ineffective for giving a “scant closing
argument”;
(10) trial counsel was ineffective for failing to question the
State’s forensic witness;
(11) trial counsel was ineffective for not moving “to
determine the credibility of the State witnesses” before
they were permitted to testify;
(12) trial counsel was ineffective for “overall failing to
investigate, prepare, and tender a proper defense”;
(13) Santiago was denied due process because the state
knowingly permitted Garcia to testify falsely;
(14) Santiago was denied due process because the state
knowingly permitted Adorno to testify falsely;
(15) Santiago was denied due process because the state
knowingly permitted Logan to testify falsely;
(16) trial counsel was ineffective for failing to call
witnesses in support of his motion that Santiago was
arrested without probable cause;
(17) Santiago was denied due process because of the
admission of more than one prior inconsistent statement
from Adorno and Logan;
(18) Santiago was denied due process because of the
State’s undue emphasis on the fact that Adorno and
Logan pled guilty.

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Analysis
I.

Procedural Default
A.

Fair Presentment: Claims 1 and 4 through 16

To properly raise any issue on habeas review, a petitioner must have “fairly
presented” that issue through one complete round of state court review. Richardson
v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014). Of the 18 claims Santiago makes in his
petition in this Court, only claims 2, 3, 17, and 18 were presented through one
complete round of state court review. Santiago raised claims 1 and 4 through 16 in
his pro se postconviction petition. But after the circuit court denied that petition, he
did not raise those claims with the appellate court. Therefore, they are procedurally
defaulted and may not be addressed by this Court.
B.

Independent and Adequate State Law

In addition to the “fair presentment” requirement, a habeas claim “will be
procedurally defaulted—and barred from federal review—if the last state court that
rendered judgment ‘clearly and expressly’ states that its judgment rests on a state
procedural bar.” Lee v. Foster, 750 F.3d 687, 693 (7th Cir. 2014) (quoting Harris v.
Reed, 489 U.S. 255, 263 (1989)). “Accordingly, [courts do] not entertain questions of
federal law in a habeas petition when the state procedural ground relied upon in the
state court is independent of the federal question and adequate to support the
judgment.” Lee, 750 F.3d at 693 (citing Coleman v. Thompson, 501 U.S. 722, 729
(1991)). “An independent state ground will be found when the court actually relied
on the procedural bar as an independent basis for its disposition of the case.” Lee,

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750 F.3d at 693. “A state law ground is adequate when it is a firmly established and
regularly followed state practice at the time it is applied.” Id.
1.

Claims 17 and 18

“When a state court refuses to reach the merits of a petitioner’s federal claims
because they were not raised in accord with the state’s procedural rules (i.e.,
because the petitioner failed to contemporaneously object), that decision rests on
independent and adequate state procedural grounds.” Richardson v. Lemke, 745
F.3d 258, 268-69 (7th Cir. 2014) (citing Kaczmarek v. Rednour, 627 F.3d 586, 591
(7th Cir. 2010)). “Illinois law requires a convicted defendant to include any and all
claims of error in a post-trial motion for a new trial,” and “failure to comply with
this requirement amounts to a waiver of the claim.” Miranda v. Leibach, 394 F.3d
984, 992 (7th Cir. 2005); see also Mitchell v. Williams, 2015 WL 5722447, at *6
(N.D. Ill. Sept. 29, 2015) (holding that under Illinois law “a party forfeits an
argument on appeal by not presenting it at trial. Consequently, the Illinois
appellate court's determination rested on an independent and adequate state
ground.”).
In claims 17 and 18 Santiago argues that the trial court erred in admitting
too many prior inconsistent statements from Adorno and Logan (claim 17), and
permitted unfair emphasis on Adorno’s and Logan’s guilty pleas (claim 18).
Santiago raised these claims on direct appeal, but conceded that he had not
preserved these claims in the trial court. On this basis, the appellate court held that
Santiago forfeited these claims. Although the state appellate court went on to

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discuss whether the trial court’s rulings constituted plain error, this “alternative
discussion of the claim on the merits does not ameliorate the procedural default.”
Mitchell, 2015 WL 5722447, at *6; see also Brooks v. Walls, 279 F.3d 518, 523 (7th
Cir. 2002) (“A state court may say something like: ‘this argument has been forfeited
because not raised in the proper way (such as by an objection to the jury
instructions); and the defendant has not established plain error because there was
no error at all.’ When it does this, it has not abandoned the procedural ground but
has instead added a substantive failing to the procedural one.”); Willis v. Aiken, 8
F.3d 556, 563 (7th Cir. 1993) (Consequently, we concluded that the state judgment
rested on two adequate and independent grounds—the failure to make a
contemporaneous objection and the lack of any error with respect to the instructions
on the burden of proof.”). Thus, claims 17 and 18 are not cognizable on habeas
review because they were not properly preserved in the trial court.
2.

Claim 2

The Seventh Circuit has also held that 725 ILCS 5/122-2 can serve as an
independent and adequate state law ground barring habeas review. See Thompkins
v. Pfister, 698 F.3d 976, 986 (7th Cir. 2012). The appellate court expressly relied on
725 ILCS 5/122-2 in rejecting Santiago’s claim that his trial counsel was ineffective
for failing to call Vega, which is the claim he has labeled as claim 2 in his petition.
Thus, claim 2 is not cognizable on habeas review. 2

Additionally, Santiago has not made any argument that would excuse his
procedural defaults. He has not “demonstrate[d] both cause for and prejudice
2

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II.

Merits: Claim 3
Santiago argues that his trial counsel was ineffective for failing to call

Santiago’s parents as alibi witnesses. On habeas review, a petitioner claiming
ineffective assistance of counsel must show that the state court unreasonably
applied the standard set forth by the Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984). The Strickland standard asks (1) whether counsel provided
representation that “fell below an objective standard of reasonableness,” and (2)
whether “there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 688, 694.
Unlike a straightforward application of Strickland, on habeas review “the question
is not whether counsel’s actions were reasonable,” but “whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington v. Richter, 562 U.S. 86, 105 (2011). The Supreme Court has described
this standard for ineffective assistance of counsel claims on habeas review as being
“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).
The appellate court held that Santiago could not establish prejudice from
trial counsel’s failure to call his parents as witnesses because, in light of the
testimony or statements from Adorno, Logan, Garcia, and Otero that Santiago was
present during the fight, there was not a “reasonable probability” that the
testimony of Santiago’s parents that he was with them at the time of the fight
would have “changed the outcome of the proceedings.” Santiago, 2014 WL 3002498,
stemming from [his] default,” or “that denial of relief will result in a miscarriage of
justice.” Lewis v. Sternes, 390 F.3d 1019, 1026 (7th Cir. 2004).
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¶ 22. This is a reasonable analysis of potential prejudice, and thus is a reasonable
application of the Strickland standard, such that claim 3 in Santiago’s petition must
be denied.
Moreover, even if there was a basis for the Court to disagree with the state
court’s analysis of potential prejudice under Strickland (which there is not), trial
counsel’s decision not to call Santiago’s parents did not fall below Strickland’s
objective standard of reasonableness. The Seventh Circuit has held that, “[a]s a
matter of trial strategy, counsel could well decide not to call family members as
witnesses because family members can be easily impeached for bias.” Bergmann v.
McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995); see also U.S. ex rel. Coleman v.
Shaw, 2009 WL 1904370, at *8 (N.D. Ill. July 1, 2009) (“Moreover, where one
witness was Petitioner’s uncle and the other was his girlfriend, the testimony the
two provided would have been easily subject to impeachment given their close
relationships with Petitioner. There is no reason to think that the testimony offered
by these two interested witnesses would have altered the court’s credibility
determination, and the state appellate court’s conclusion to that effect is consistent
with federal law.”); Wiggins v. United States, 2007 WL 4277442, at *4 (C.D. Ill. Dec.
3, 2007) (“This court further concludes that the Government is correct that
Petitioner has not explained how testimony from family members would counter the
eyewitness testimony from various witnesses who identified Petitioner as the
robber, surveillance photographs of the robber from the credit union, and evidence
that Petitioner was in possession of a large sum of money, including bait money

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from the credit union robbery. This court must agree with the Government that
Petitioner has utterly failed to show a reasonable probability that the outcome of
his trial would have been different had his counsel called these alibi witnesses.”). In
light of the overwhelming evidence that Santiago was present at the scene of the
crime, and his parents’ implicit bias, it is likely that the jury would have inferred
that Santiago’s parents were lying. It was reasonable for trial counsel not to have
called these witnesses.
IV.

Certificate of Appealability
Lastly, the Court declines to issue a certificate of appealability pursuant to

28 U.S.C. § 2253(c)(2). Rule 11(a) of the Rules Governing § 2254 Cases provides that
the district court “must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” See Gonzalez v. Thaler, 132 S.Ct. 641, 649 n.5
(2012). To obtain a certificate of appealability, a habeas petitioner must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
This demonstration “includes showing that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); see also Lavin v.
Rednour, 641 F.3d 830, 832 (7th Cir. 2011). Here, the Court’s denial of Santiago’s
petition rests on application of well-settled precedent. Accordingly, certification of
any of Santiago’s claims for appellate review is denied.

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Conclusion
For the foregoing reasons, Santiago’s petition, R. 1, is denied. The Court also
declines to issue a certificate of appealability for any of the claims in the petition.
ENTERED:
______________________________
Honorable Thomas M. Durkin
United States District Judge

Dated: January 27, 2017

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