Johnson v. Williams

Filing 25

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 5/9/2017. The Court declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2). Judgment is entered in favor of Respondent. Civil case terminated. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTAWAN JOHNSON,
Petitioner,
v.
RANDY PFISTER, Warden,
Stateville Correctional Center,
Respondent.

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Case No. 15-cv-6078
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Petitioner Antawan Johnson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254
[1]. For the reasons set forth below, the Court denies Petitioner’s application [1]. The Court
declines to certify any issue for appeal pursuant to 28 U.S.C. § 2253(c)(2), and directs the Clerk
to enter judgment in favor of Respondent.
I.

Background
A.

State Court Proceedings
1.

Criminal Trial

On May 27, 2005, a Cook County, Illinois jury found Petitioner guilty of first degree
murder and unlawful discharge of a firearm for the June 2001 shooting death of Cortez Bell. On
July 5, 2005, Petitioner was sentenced to an aggregate term of 50 years of imprisonment.
Petitioner and co-defendant Naja Triplett were tried together. At trial, the State presented
testimony from Airrion Smith and Jessie Knox—two witnesses who said they were “shooting
dice” with Bell and others in Chicago Heights on June 16, 2001. According to Smith, Petitioner
approached the group and offered to sell a .22 rifle and .22 shotgun for $100. When no one
expressed interest, Petitioner borrowed $5 from Smith and joined the group to shoot dice. He

won some money at first, but lost his winnings after moving down the block to a higher-stakes
game. Shortly afterwards, Triplett approached Petitioner on a bicycle. Petitioner told Triplett
that although he had lost his money, “[w]e on some bulls**t.” [20-2, at 9.] Triplett responded,
“I want some bulls**t too.” Id. Petitioner informed Triplett that he had two guns in his
backyard and the two men left. Id. About 45 minutes later, Smith and another player, Clifton
Ross, left the game and walked across the street to an abandoned house, where they observed
Petitioner and Triplett standing with “two long guns.” [20-3, at 6.] Smith testified that he saw
Petitioner and Triplett aim their guns at the group playing dice and fire three or four shots.
Smith and Ross fled, but Smith later returned and found Bell on the sidewalk bleeding.
Knox’s testimony largely corroborated Smith’s testimony about Petitioner’s request to
borrow money, his loss of that money playing dice, the particulars of the conversation between
Petitioner and Triplett, and their leaving together. On direct examination, Knox testified that he
remained with the group shooting dice until he saw Smith and Ross running down the driveway
of the abandoned house across the street. Knox then heard gun shots and ran around the corner
until the shooting ceased. When he returned, he saw Bell lying on the ground bleeding. Knox
was questioned by the police and later by the state’s attorney, and gave testimony to the grand
jury that was consistent with this version of events.
On cross examination, Knox was confronted with an affidavit that he signed on
November 22, 2004—more than three years after the incident—stating that “On the night of June
16, 2001, [Triplett] and [Petitioner] tried to sell some guns to us, Money, Alonzo, Robert, Jessie,
Clifton, and Cortez and Eric [Gill]. Eric convinced us to [r]ob them. We tried to and they came
but everything went wrong and it resulted in the death of Cortez Bell.” [20-2, at 10.] The

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affidavit further stated that Knox did not tell the police about Triplett and Petitioner trying to sell
guns because Knox did not want any further problems.
On redirect, however, Knox explained that he completed the affidavit at the request of
Petitioner’s brother. Specifically, Petitioner’s brother approached Knox with a blank affidavit
and a piece of notebook paper with writing on it. At the brother’s request, Knox transferred what
was written on the notebook paper to the affidavit, signed it, and then was driven to a notary.
Knox testified that he was not pressured to complete the affidavit, but he did not know anyone
named Eric and no one named Eric was with him on the date of the shooting. Knox also
reaffirmed that his grand jury testimony was correct and the information in the affidavit was not.
The State also called Petitioner’s 2001 girlfriend, Tina McKee, who testified about a
conversation she had with Petitioner at her mother’s house on the day after the shooting. At that
meeting, Petitioner purportedly told her that someone had taken his money and that he and a
friend had fired their guns, although they had not fired at anyone in particular. According to
McKee, Petitioner said that he fired his gun first, then Triplett shot his gun, and “when they were
done shooting, the boy [Bell] fell to the ground.” [20-1, at 4.] The State then confronted McKee
with her prior statement to Assistant State’s Attorney Alzetta Bozeman-Martin in which McKee
said that the meeting with Petitioner had occurred on the day of the shooting (not after) at her
aunt’s home (not her mother’s home). In that affidavit, she indicated that Petitioner told her, “I
feel like killing these mother f**kers,” and he and Triplett had gone to Triplett’s grandmother’s
garage to retrieve a “long gun” and .22 caliber gun. McKee testified that she had lied to
Bozeman-Martin (and the grand jury) when she gave this statement because she had been put in
a jail cell and was told that she could return home only if she cooperated and signed this
statement. McKee also denied receiving threatening letters from Petitioner following his arrest.

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The State also called Chicago Heights Detective Mikal El-Amin and ASA BozemanMartin about their interview with Petitioner on July 7, 2001, the day after his arrest. During that
interview, Petitioner signed a statement confessing to shooting into the crowd of dice players.
Specifically, Petitioner admitted that he, Triplett, and the other men playing dice were members
of the Four Corner Hustlers street gang and there was an ongoing feud over territory. Four days
prior to the shooting, in fact, Triplett had been beaten because was in the “wrong area.” [20-3, at
10.] For these reasons, he and Triplett left the area where the men were playing dice, went
drinking, and then returned with two .22 caliber rifles and began shooting. Id. On crossexamination, Detective El-Amin admitted that he had destroyed his original notes from
Petitioner’s July 7 interview and from the other interviews that he had conducted with witnesses
of the shooting. [1, at Ex. S, at MM-13–14.] He testified that he reduced these original notes to
a summary report and then destroyed the originals pursuant to the practice of Chicago Heights
Police Department. Id. at MM-13–14.
Petitioner testified as the sole witness in his defense. He corroborated the broad contours
of Smith and Knox’s description of the initial events: he approached the group playing dice,
asked to borrow money, lost his initial winnings after moving to a higher-stakes game, and
offered to sell two .22 caliber rifles for $100. His description of later events diverges from the
others. He testified that Smith requested that he get the guns and meet across the street.
Petitioner then left to find Triplett, who owned the guns, and Triplett rode up on his bicycle.
Petitioner said that he “got a sale for the guns,” but Triplett did not believe him and accused
Petitioner of being “on some bulls**t.” [1, at Ex. S, at MM-145.] Petitioner responded that he
“wasn’t in on any bulls**t,” and in fact had a buyer. Id. The two then left and returned an hour
or two later. When they arrived, a group of people led by Gill approached them and asked to see

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the guns and if they were loaded. Triplett removed a bullet from his gun to show Gill and asked
him, “where the money at.” Id. at MM-150. Petitioner then heard a noise from behind and saw
Smith and Ross running towards them. Gill tried to grab the gun out of Triplett’s hand, the two
men struggled, and Petitioner fired his gun telling everyone to “freeze.” Id. at MM-152. Triplett
then placed the bullet back into the gun, shot into the crowd, and both men fled.
Petitioner testified that he saw McKee at her mother’s house a “couple of days” later, but
denied saying he shot anyone or into the crowd. Id. at MM-154. He also testified that he told all
of this to the police, but later decided to give them a different “story,” not a “confession,” once
Detective El-Amin confronted him with Knox’s statements. Id. at MM-158–59; [20-3, at 12].
According to Petitioner, a “confession” is true, while a “story” is not. [20-3, at 12.] On crossexamination, he admitted that he and Triplett had fired their guns. [1, at Ex. S, at MM-177.]
At the jury instruction conference, the trial judge accepted the State’s version of Illinois
Pattern Instruction 3.11 for prior inconsistent statements. [See 20-14, at 63.] The pattern
instruction distinguishes between statements used as impeachment and substantive evidence.
The substantive evidence language in the instruction is bracketed, indicating that it is “alternative
language” that may not be appropriate in all cases. Ill. Pattern Jury Instructions, Criminal No. 1
(4th Ed. 2000). The note accompanying this instruction states, in part, that “[w]hen both kinds of
earlier inconsistent statements are used for [substantive and impeachment] purposes this
instruction should be given in its entirety at the close of the trial.” Id. at No. 3.11 committee
note.

The instruction offered by the State contained the pattern instruction’s concluding

language stating that it is up to the jury “to determine what weight should be given to [the prior]
statement” and the jury “should consider all of the circumstances under which it was made” in
making that determination, but did not contain the language from the pattern instruction on how

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prior written or signed statements can be considered substantive evidence. [20-14, at 63.]
Petitioner’s trial counsel agreed to this instruction without objection. [See 1, at Ex. N, at NN-6.]
Petitioner’s counsel also offered instructions on the lesser-included offense of reckless
discharge of a firearm and spoliation of evidence, both of which the trial judge denied. [1, at Ex.
N, at NN-13–20.] The trial judge rejected a spoliation instruction based on Detective El-Amin’s
testimony about his notes, reasoning that the jury had heard his testimony and could draw their
own conclusions. Id. at NN-13–15. Regarding the lesser-included offense instruction, the trial
judge accepted the State’s argument that even if the jury believed Petitioner’s testimony that
Triplett had fired his gun into the crowd, Petitioner would still be guilty under an
“accountability” theory—that is, he would have been “legally responsible for the conduct of
another person when, either before or during the commission of an offense, and with the intent to
promote or facilitate the commission of an offense, he knowingly solicits, aids, abets, agrees to
aid, or attempts to aid the other person in the planning or commission of the offense.” Ill. Pattern
Jury Instructions, Criminal No. 5.3. Since this “accountability” instruction was accepted—over
Petitioner’s objection [1, at Ex. N, at NN-7–9]—the reckless discharge would not have been an
appropriate lesser-included offense “based upon the totality of the evidence.” Id. at NN-18.
Before closing arguments began, the trial court instructed the jury that “what the lawyers
say is not evidence and should not be considered by you as evidence” and “the lawyers will
simply be discussing what they believe the evidence has shown.” [1, at Ex. D, at NN-32.] Three
of the State’s arguments are relevant. First, the prosecutor stated twice that the “most powerful
piece of evidence in a criminal trial is a confession”—an argument advanced in the context of
explaining how Petitioner’s post-arrest statements corroborated Smith’s testimony. Id. at NN44–46. Second, the prosecutor stated that if “[a]ny questions come in up in the jury room, turn to

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those jury instruction, that is your guide in this case to determine what is relevant and what is
not. If it’s not in the jury instructions, it’s not relevant, don’t consider it.” Id. at NN-46. Third,
the prosecutor responded in rebuttal to Petitioner’s argument that “[t]he most powerful piece of
evidence in a criminal case is DNA” and “[y]ou don’t have that.” Id. at NN-77. The State said,
Counsel made a big deal about DNA and that is the best kind of evidence and
whatnot, that’s true, there was no DNA found or recovered here. You want to
know why? It’s because * * * it’s called a crime scene. You want to know why
it’s called a crime scene? Because it’s controlled by the criminals. Th[ey] decide
it. Like I started to tell you earlier, they decide what evidence is going to be left
behind. They decide what witnesses they are going to be out there and that
they’re going to allow to see everything that happened. They decide. If there was
no DNA recovered, that is because he and his partner didn’t allow it. If there was
no casings or anything recovered, that is because he and his criminal teammates
didn’t allow it. And the guns weren’t recovered, that is because he and his
criminal teammates didn’t allow it. They control the crime scene.
Id. at NN-88–89. Petitioner’s trial counsel did not object to any of these arguments.
Following closings, the jury returned a guilty verdict against Petitioner. Petitioner filed a
posttrial motion for a new trial advancing thirteen somewhat overlapping arguments: (1) the
State failed to prove Petitioner guilty of the charges beyond a reasonable doubt, (2) the verdict
was against the weight of the evidence, (3) Petitioner was denied due process of the law; (4)
Petitioner was denied equal protection of the law; (5) the State failed to prove Petitioner guilty of
every material allegation of the offense beyond a reasonable doubt; (6) Petitioner was denied a
fair and impartial trial as guaranteed by the Illinois and United States Constitutions; (7) the court
erroneously overruled Petitioner’s motion for directed verdict; and (8) the verdict was based on
evidentiary facts that do not exclude every reasonable hypothesis consistent with Petitioner’s
innocence; (9) the State erroneously shifted the burden of proof to Petitioner when it argued in
closing that Petitioner chose the evidence; (10) the court erred in prohibiting an instruction for
lesser-included offenses; (11) the court erred in the specific language of its accountability jury
instruction; (12) the court erroneously allowed the State to reference Petitioner’s alleged threats
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against McKee; and (13) the court erred in not providing a spoliation instruction to disregard
Detective El-Amin’s testimony. [1, at Ex. E.] The trial judge denied the motion and sentenced
Petitioner to consecutive 30- and 20-year terms of imprisonment.
2.

Direct Appeal

In the direct appeal of his conviction, Petitioner raised two arguments: (1) the jury was
erroneously instructed on prior inconsistent statements, and (2) the three statements from the
State’s closing argument described above were improper. [20-2, at 6.] On April 19, 2007, the
Illinois Appellate Court rejected both arguments and affirmed. [See 20-1.] First, the court
concluded that Petitioner had forfeited the jury instruction issue by failing to object at trial or
raise the issue in his posttrial motion. [See 20-1, at 6–7.] The court also considered and rejected
Petitioner’s argument that the trial court’s instruction constituted plain error or his counsel’s
failure to object demonstrated ineffective assistance of counsel, focusing on the “overwhelming
evidence” at trial of Petitioner’s guilt. Id. at 7–9. Second, the Appellate Court found that
Petitioner’s counsel “waived” (or, more accurately, forfeited) challenges to the State’s closing
argument by failing to object at trial. Id. at 10. The court again reviewed this issue under plain
error and for ineffective assistance of counsel, and concluded that these statements—to the extent
improper—did not merit reversal in light of the State’s entire closing argument and the
“overwhelming” evidence against Petitioner. Id. at 10–14.
On June 27, 2007, Petitioner filed a pro se petition for leave to appeal (“PLA”) with the
Illinois Supreme Court that reurged both of his direct appeal arguments. [20-5.] The Illinois
Supreme Court denied the PLA on September 26, 2007. People v. Johnson, 875 N.E.2d 1118
(Ill. Sept. 26, 2007). Petitioner then filed a petition for writ of certiorari to the United States
Supreme Court, which was denied on June 22, 2008. Johnson v. Illinois, 552 U.S. 1169 (2008).

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3.

Collateral Proceedings

On April 2, 2008, Petitioner filed his initial pro se petition seeking relief under the PostConviction Hearing Act, 725 ILCS 5/122-1 et seq., and an amended petition on April 10. [2023, at 25–35.] His amended petition asserted the following violations of his rights under the
Illinois Constitution and the Sixth and Fourteenth Amendments to the United States Constitution:
(1) the venire panel was not questioned about anti-gang bias; (2) the State’s reliance on an
“accountability” theory to prove murder impermissibly “broadened” the indictment; and (3) his
trial and appellate counsel were ineffective for failing to raise these claims. Id. at 32–35.
Petitioner was appointed counsel on May 16 [20-25, at 24–26], but he filed another pro se
petition on July 22, repeating the arguments from his amended petition [1, at Ex. J, at 217–27].
Around April 27, 2011, Petitioner indicated his desire to proceed pro se and filed a new
petition. [20-25, at 24–72.] In addition to the anti-gang bias and accountability arguments from
his 2008 petitions, Petitioner raised the following claims: (1) the trial judge abused his discretion
by refusing to instruct the jury on the reckless discharge offense; (2) the State used hearsay
evidence to impeach McKee; (3) the trial judge abused his discretion by denying the spoliation
instruction; and (4) Petitioner’s trial and appellate counsel were ineffective for failing to raise or
properly argue these challenges. [20-23, at 45–100.] In May 2011, Petitioner elected to remain
with his appointed counsel, who adopted his 2011 petition without changes. [20-25, at 73–82.]
The State moved to dismiss Petitioner’s amended petition on October 21, 2011. [1, at Ex.
L, at 284–96.] The Circuit Court of Cook County ruled orally and granted the State’s motion on
March 9, 2012. [20-25, at 111–19.] With respect to the “accountability” arguments, the court
held that “established case law” allows the State to indict a defendant as a principal and then
proceed under a theory of accountability at trial. Id. at 113–14. Because there was no error,

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neither trial nor appellate counsel was ineffective for not raising these issues. Id. With respect
to absence of gang-bias questions, the court considered this to be trial strategy and held that his
counsel did not fall below an objective standard of reasonableness. Id. at 114. The court did not
discuss Petitioner’s other arguments specifically in his oral ruling, but concluded that “defendant
has not therefore made a substantial showing of any constitutional violations.” Id. at 115.
Petitioner appealed.

[20-9.]

First, he argued that his direct appellate counsel was

ineffective for failing to seek review of the original trial judge’s refusal to instruct the jury on
lesser-included offenses and spoliation. Second, he argued that his post-conviction trial counsel
was ineffective because she failed to advocate properly for him. Third, he argued that judge who
heard his post-conviction claims “ignored many” of his allegations in his petition and the judge’s
“failure to read the amended petition” requires further proceedings. [20-9, at 53.]
On September 4, 2014, the Illinois Appellate Court affirmed. See People v. Johnson,
2014 IL App (1st) 120750-U. Applying Illinois case law to Petitioner’s version of the facts, the
Appellate Court held that the trial court correctly denied the lesser-included offense instruction.
Id. ¶¶ 23–38. Specifically, Triplett’s discharge of his firearm at Gill and others as they attempted
to rob Petitioner and Triplett was an act in furtherance of their common criminal design, which
meant no rational trier of fact could have found Petitioner guilty of only reckless discharge and
not murder based on an accountability theory. Id. The Appellate Court further held that the
failure to provide a spoliation instruction was harmless, adopting the original Appellate Court’s
conclusion that “the State adduced overwhelming evidence of petitioner’s guilt” and the outcome
at trial would not have been different with this instruction. Id. ¶¶ 39–50. The court concluded
that Petitioner’s post-conviction trial counsel’s advocacy was “absolutely correct and wholly
appropriate.” Id. ¶¶ 51–55. And finally, the court rejected Petitioner’s argument that the post-

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conviction trial court had not read his petition, noting that “the trial court did not need to discuss
every claim” as part of its ruling when it denied his petition in full. Id. ¶¶ 56–60.
On October 9, 2014, Petitioner filed a PLA with the Illinois Supreme Court, raising
arguments related to the lesser-included offense and spoliation jury instructions only. [20-12.]
The Illinois Supreme Court denied the PLA on November 26, 2014. People v. Johnson, 21
N.E.3d 716 (Ill. Nov. 26, 2015) (Table).
B.

Section 2254 Petition

Petitioner filed his petition for writ of habeas corpus in federal court on July 9, 2015. [1.]
He sets out the following six claims in his petition:
Claim 1:

The trial judge erroneously provided the jury with an incomplete instruction
regarding the use of prior inconsistent statements;

Claim 2:

The State improperly argued during its closing at trial that “it is the defendant
who decides what evidence is going to be presented to the jury, that the most
powerful piece of evidence in a criminal trial is a confession, and that if it’s
not in the jury instructions, it is not relevant”;

Claim 3:

Direct appellate counsel was ineffective for failing to raise the trial judge’s
denial of jury instructions on (a) lesser-included offenses, and (b) spoliation;

Claim 4:

The state post-conviction trial judge abused his discretion by dismissing
Petitioner’s post-conviction petition “before reading it”;

Claim 5:

The original trial judge abused his discretion by denying Petitioner’s request
to instruct the jury on the lesser-included offense; and

Claim 6:

The original trial judge abused his discretion by denying Petitioner’s request
to instruct the jury on spoliation.

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Id. at 8–11. Petitioner has exhausted his state court remedies for these claims. 28 U.S.C. §
2254(c); 725 ILSC 5/122-1(f); [19, at 9].
II.

Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas relief cannot be

granted unless the state court’s decision was contrary to, or involved an unreasonable application
of, federal law as determined by the United States Supreme Court. See Williams v. Taylor, 529
U.S. 362, 402–03 (2000); Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013). Habeas relief
“has historically been regarded as an extraordinary remedy, a ‘bulwark against convictions that
violate fundamental fairness.’” Brecht v. Abrahamson, 507 U.S. 619, 633 (1993) (quotation
omitted). Habeas petitions require federal courts “essentially to reopen the criminal process to a
person who already has had an opportunity for full process,” Almonacid v. United States, 476
F.3d 518, 521 (7th Cir. 2007), and are used as a “‘guard against extreme malfunctions in the state
criminal justice systems,’ not a substitute for ordinary error correction through appeal,”
Harrington v. Richter, 562 U.S. 86, 102–103 (2011) (quotation omitted). To obtain relief, “a
state petitioner must show that the state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.
III.

Analysis
A.

Claims Not Alleging Violations of Federal Law

“In conducting habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S.
62, 67–68 (1991). The Supreme Court has “stated many times that ‘federal habeas corpus relief
does not lie for errors of state law.’” Id. (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see

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also 28 U.S.C. § 2254(a). “State law means what state courts say it means. A claim that the
state court misunderstood the substantive requirements of state law does not present a claim
under § 2254.” Bates v. McCaughtry, 934 F.2d 99, 102 (7th Cir. 1991) (citations omitted).
As an initial matter, the Court concludes that Petitioner’s Claims 1, 4, 5, and 6 are not
cognizable under Section 2254 because they do not allege violations of federal law.1 The Court
first addresses Claims 1, 5, and 6—all of which involve arguments about jury instructions—and
then turns to the distinct issues presented by Claim 4.
1.

Claims 1, 5, and 6

Petitioner’s argues that he was entitled to receive specific jury instructions on prior
inconsistent statements (Claim 1), a lesser-included offense (Claim 5), and spoliation (Claim 6).
“Whether a defendant is entitled to a particular jury instruction in state court is a matter of state
law.” Maclin v. Pfister, 2016 WL 4439939, at *8 (N.D. Ill. Aug. 23, 2016). All three of these
claims turn on whether Illinois courts erred in deciding that Illinois law did not require these jury
instructions based on the evidence at trial. See Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir.
2004) (“a state trial court’s evidentiary rulings and jury instructions turn on state law”). The fact
that Petitioner “relied upon state cases which engaged in a non-constitutional analysis based
solely on state law principles belies the notion that the Illinois appellate court should have
understood that [Petitioner] was invoking his rights under the U.S. constitution.” Wilson v.
Briley, 243 F.3d 325, 328 (7th Cir. 2001).

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Claim 2 alleges prosecutorial misconduct in violation of the Sixth and Fourteenth Amendments [1, at 8],
and Claim 3 alleges ineffective assistance of appellate counsel in violation of the Fourteenth Amendment
[id. at 9]. Respondent does not argue that either claim is not cognizable under federal law. [19, at 10–
11.] Although Petitioner never referenced the Sixth Amendment in his arguments on direct appeal [20-2],
the underlying facts and legal theories for these claims have remained essentially the same throughout
Petitioner’s arguments in state court.

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In particular, the substance of Claim 1 is that the evidence at trial supported instructing
the jury with the portion of the Illinois Pattern Instruction 3.11 related to prior inconsistent
statements “written or signed by the witness,” evidenced by the fact that the committees notes
recommend that this instruction be given “in [its] entirety” when required by the evidence. [202, at 14–20; 20-5, at 11–26; 22 at 9–10.] A claim based on the misapplication of an Illinois
Pattern Jury Instruction is a claim under state law. See, e.g., Lenoir v. Williams, 2015 WL
684743, at *7 (N.D. Ill. Feb. 17, 2015) (holding that petitioner’s claim that the trial court erred in
giving an Illinois Pattern Jury Instruction was “raised * * * under state law”); United States v.
Butler, 2016 WL 772804, at *6 (N.D. Ill. Feb. 29, 2016) (same). In addition, Petitioner argues
that the impact of this error was that jury was not properly instructed on how to consider “Jessie
Knox’s affidavit,” which it should have treated it as “substantive evidence.” [1, at 8.] How
evidence should be treated by the factfinder also presents an issue of state law. See Robertson v.
Hanks, 140 F.3d 707, 712 (7th Cir. 1998) (holding that an “evidentiary ruling by a state court is
not cognizable in a federal habeas corpus proceeding”); Hayes v. Battaglia, 403 F.3d 935, 939
(7th Cir. 2005) (“[I]f (as [petitioner] insists) the evidence should have been excluded as a matter
of Illinois law that is none of our concern. Section 2254 is not a means to enforce rules of state
law.” (internal citation omitted)).
Similarly, Claims 5 and 6 are framed in terms of the trial judge’s abuse of discretion.
[See 1, at 10–11.] “[A]buse-of-discretion arguments are ubiquitous, and most often they have
little or nothing to do with constitutional safeguards.” Wilson, 243 F.3d at 328. In his postconviction appeal [20-9], Claims 5 and 6 were embedded within Petitioner’s argument that his
direct appellate counsel was ineffective for failing to pursue these claims (more on that below).
In resolving this ineffective assistance claim, the Illinois Appellate Court relied solely on Illinois

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law in deciding that the “lesser included offense instruction lacks substantive merit” and the
failure to give the spoliation instruction was harmless. Johnson, 2014 IL App (1st) 120750-U,
¶¶ 22–50; accord United States ex rel. Chester v. Pfister, 2015 WL 1345767, at *5 (N.D. Ill.
Mar. 23, 2015) (denying that petitioner’s challenge to “the proper test” for “what constitutes a
lesser included offense” because it was a claim that “his jury instruction[s] * * * violated Illinois
law” and “the Illinois courts accordingly applied only state law standards in ruling on his
claim”). Whether these instructions were required—and thus the trial judge abused his discretion
in denying these instructions—depends on the requirements of state law. It is “not the province
of a federal habeas court to reexamine state-court determinations on state law questions,” and
thus Claims 1, 5, and 6 are not cognizable. Estelle, 502 U.S. at 67–68.
Of course, it is true that erroneous jury instructions may violate a criminal defendant’s
constitutional rights. See, e.g., Evans v. Dorethy, 833 F.3d 758, 761 (7th Cir. 2016) (holding that
petitioner alleged a Sixth Amendment violation where he asserted that his jury instructions
omitted an “element” of the charged crime); Leach v. Kolb, 911 F.2d 1249, 1257 (7th Cir. 1990)
(“[W]here the petitioner alleges constitutional error due to the trial court’s refusal to allow a
defense instruction, the constitutional question is limited to whether the petitioner sufficiently
alleges a ‘fundamental defect which inherently results in a complete miscarriage of justice.’”
(citation omitted)); see also Cupp v. Naughten, 414 U.S. 141, 146 (1973) (“Before a federal court
may overturn a conviction resulting from a state trial in which this instruction was used, it must
be established not merely that the instruction is undesirable, erroneous, or even ‘universally
condemned,’ but that it violated some right which was guaranteed to the defendant by the
Fourteenth Amendment.”). But Petitioner did not fairly present his claims this way in state court
and that dooms his request for habeas relief here.

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Petitioner’s direct appellate argument concerning Claim 1 contains a few stray references
to the “right to a fair trial,” mostly in the section headings of his argument. [See 20-2.] But
“scattered references to ‘due process” and ‘right to a fair trial’ without any supporting
constitutional analysis are insufficient to satisfy the requirement of fair presentment.” Whitfield
v. Sternes, 66 F. App’x 40, 43 (7th Cir. 2003) (references appeared in section headings). To
apprise state courts of a violation of federal law, “Petitioner must do more than ‘phrase-drop’
constitutional terms; he must go ‘beyond the due process label to a more meaningful level of
specificity.’”

Id. (quoting Chambers v. McCaughtry, 264 F.3d 732, 739 (7th Cir. 2001)).

Petitioner advanced his challenge to the prior inconsistent statement jury instructions in terms of
the requirements of Illinois law.

He cannot try to convert this state law claim into a

constitutional one for the first time on federal habeas review.
For Claims 5 and 6, his post-conviction appellate briefs go somewhat further, but still fall
short of raising federal constitutional claims. The closest Petitioner comes for his lesser-included
offense instruction argument (Claim 5) is on page 20 of his opening brief to the Illinois Appellate
Court [20-9]—nestled within his nine page discussion of Illinois law—where he cites Keeble v.
United States, 412 U.S. 205 (1973), and Beck v. Alabama, 447 U.S. 625 (1980), and states that
“A defendant is entitled to a lesser-included offense instruction where, under the evidence, a jury
could rationally find him guilty of the lesser count.
instructions when the evidence warrants.”

Due process requires lesser-included

Neither case, however, identifies a federal

constitutional right under the Due Process Clause of the Fourteenth Amendment to a lesserincluded offense instruction for non-capital cases. See Keeble, 412 U.S. at 208 (“The Federal
Rules of Criminal Procedure deal with lesser included offenses.”); Beck, 447 U.S. at 638 n.14
(“We need not and do not decide whether the Due Process Clause would require the giving of

16

such instructions in a noncapital case.”); see also Calloway v. Montgomery, 512 F.3d 940, 944
(7th Cir. 2008) (“[T]he Beck footnote requires us to conclude that on this issue in a noncapital
case, there is no clearly established Supreme Court precedent” that requires a lesser included
offense instruction.); Nichols v. Gagnon, 710 F.2d 1267, 1271 (7th Cir. 1983) (same).2
Regardless, “citation to federal case law does not change the nature of his underlying claim.”
Ambrose v. Holmes, 112 F. App’x 514, 518 (7th Cir. 2004). Counsel “must sketch an argument
about why the conviction violates” the due process clause. Riggins v. McGinnis, 50 F.3d 492,
494 (7th Cir. 1995) (explaining that “‘Due process’ is such a ductile concept that phrasedropping is the equivalent of no argument at all”). The Illinois Appellate Court correctly
recognized that Petitioner’s jury instruction argument raised only state law issues—an
understanding that was reaffirmed by Petitioner’s post-conviction PLA, which frames this issue
as how to define “Illinois’ common [criminal] design rule” [20-12, at 3, 6–10 (emphasis added)].
The same is true for his spoliation argument (Claim 6). Petitioner cites the Fifth, Sixth,
and Fourteenth Amendments for the point that “inappropriate instructions can deny a fair trial
and due process” and “prevent the jury from fulling its constitutional function.” [20-9, at 35.]
He follows these statements with citations to the Illinois Constitution and Illinois case law
discussing the failure to instruct the jury correctly on the elements of an offense—an error that he
does not assert occurred here. Id. (citing People v. Ogunsola, 87 Ill. 2d 216, 222 (1981), and
People v. Jenkins, 69 Ill. 2d 61, 66 (1977)). Petitioner makes no further reference to these
amendments or constitutional principles in his argument. See Chambers, 264 F.3d at 738 (“A

2

Failures to instruct may violate the Fourteenth Amendment Due Process Clause if they rise to the level
of a “fundamental miscarriage of justice,” Nicholas, 710 F.2d at 1272, but Petitioner has never advanced
this argument and all errors do not automatically meet this standard. See, e.g., U.S. ex rel. Stamps v.
Hartigan, 586 F. Supp. 1575, 1577 (N.D. Ill. 1984) (explaining that while “the omission of a jury
instruction may be a proper issue under Illinois law” it does not necessarily follow that the omission of
the instruction “amounts to a complete miscarriage of justice which violates due process”).

17

mere ‘passing reference’ to a constitutional issue certainly does not suffice.” (citation omitted));
Weaver v. Pfister, 2016 WL 930550, at *18 (N.D. Ill. Mar. 11, 2016) (holding that “mention of *
* * the admission of this evidence as denying him ‘a fair trial, and due process of law pursuant to
the fourteenth amendment guarantee of the United State Constitution’ in one sentence [] is not
sufficient to preserve this issue for federal review” (internal citation omitted)). As the Seventh
Circuit has explained, “the words ‘due process’ are not an argument.” Riggins, 50 F.3d at 494.
Petitioner also cites Justice Stevens’ concurrence from Arizona v. Youngblood, 488 U.S.
51 (1989), as an “example” to “illustrate” how spoliation instructions can cure violations of a
defendant’s rights. [20-9, at 40.] In Youngblood, the Supreme Court concluded that “unless a
criminal defendant can show bad faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of law.” 488 U.S. at 58 (finding no
due process violation).

Petitioner’s counsel did not discuss the Youngblood test, argue or

identify evidence showing that Detective El-Amin acted with bad faith [see 20-9, at 36–38], or
explain how or why the absence of a spoliation instruction violates the Fourteenth Amendment.
Cf. Tabb v. Butler, 2016 WL 1056657, at *5 (N.D. Ill. Mar. 17, 2016) (describing a petitioner
who raised a Youngblood claim). That is because this reference to Justice Stevens’ Youngblood
concurrence—within a fourteen-page discussion of state evidence law and ineffective assistance
of appellate counsel claim—was as an “example,” not an assertion of an independent
constitutional claim. Citation to Youngblood or the Fourteenth Amendment, without more, does
not transform Petitioner’s arguments about the misapplication of state discovery law into federal
constitutional violation or “apprise the state court that he was complaining of more than a simple
violation of state law.” U.S. ex rel. Bishop v. McCann, 2007 WL 2893632, at *3–4 (N.D. Ill.
Sept. 27, 2007).

18

2.

Claim 4

Claim 4 is that the trial judge who denied Petitioner’s post-conviction petition “addressed
only two” of the five “distinct issues” from the petition in his oral ruling and therefore “failed to
read” the petition in violation of the Fourteenth Amendment [1, at 9]. Respondent argues that
this claim is not cognizable. [19, at 10–11.] The Court agrees. “No constitutional provision or
federal law entitles a defendant to any state collateral review.” Jackson v. Duckworth, 112 F.3d
878, 880 (7th Cir.1997) (citing Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). That is
because “[f]ederal habeas corpus cannot remedy an error in a state collateral proceeding where
the error has nothing to do with the reason for a defendant’s confinement.” Zamora v. Pierson,
158 F. Supp. 2d 830, 836 (N.D. Ill. 2001); see also Kraemer v. Grounds, 2013 WL 4804893, at
*4 (N.D. Ill. Sept. 9, 2013) (“Federal habeas corpus does not provide redress for purported errors
in state post-conviction proceedings”); U.S. ex rel. Hanna v. Welborn, 1986 WL 7691, at *5
(N.D. Ill. June 25, 1986) (“Infirmities in the state’s post[-]conviction remedy procedure cannot
serve as a basis for setting aside a valid original conviction.” (citation omitted)); Luczak v.
Schomig, 2003 WL 1627844, at *10 (N.D. Ill. Mar. 27, 2003) (same). “Unless state collateral
review violates some independent constitutional right, * * * errors in state collateral review
cannot form the basis for federal habeas corpus relief.” Montgomery v. Meloy, 90 F.3d 1200,
1206 (7th Cir. 1996).
Petitioner cannot “transform a state-law issue” regarding alleged errors in his postconviction proceedings “into a federal one merely by asserting a violation of due process.”
Mishler v. Superintendent, 2016 WL 1658672, at *5 (N.D. Ind. Apr. 26, 2016) (denying claims
that state “post-conviction court did not issue subpoenas for requested witnesses and failed to
enter written findings of facts and conclusions of law” as not cognizable, even though petitioner

19

“included the words ‘due process’” in his petition); see also Jones v. Butler, 778 F.3d 575, 586
(7th Cir. 2015) (holding that state post-conviction court’s denial of evidentiary hearing, which
petitioner claimed “was a violation of his due process rights,” was simply a challenge to state
law post-conviction procedures and not cognizable). In fact, federal courts routinely deny
habeas challenges to the process that a petitioner received in state post-conviction proceedings.3
The same is required of Claim 4. See Strowmatt v. Superintendent, 2011 WL 4496527, at
*2, 5 (N.D. Ind. Sept. 26, 2011) (holding that state post-conviction court’s failure to “adequately
consider” petitioner’s claims was not cognizable). The challenge to whether the trial judge read
his petition “represent[s] an attack on a proceeding collateral to detention of appellant and not on
the detention itself.” Zamora, 158 F. Supp. 2d at 836. Moreover, the Illinois Appellate Court’s
ruling that “the trial court did not need to discuss every claim in the second amended petition
when making its ruling” is a determination of what state law requires when deciding postconviction claims. Johnson, 2014 IL App (1st) 120750-U, ¶ 58. “Because state law established
the due process * * * rights [that Petitioner] claims were violated, they are not cognizable under
federal habeas review.” Moore v. Hardy, 2013 WL 1816253, at *17 (N.D. Ill. Apr. 29, 2013).

3

See, e.g., United States ex rel. Brown v. Chandler, 2013 WL 6198182, at *6 (N.D. Ill. Nov. 27, 2013)
(denying claim that petitioner’s state habeas petition was “disposed of in his absence” and the state’s
motion to dismiss was “granted in error” because “errors occurring in the state post-conviction
proceedings * * * do not implicate the legality of the petitioner’s confinement”); Vickers v.
Superintendent, 2012 WL 2990692, at *1 n.1 (N.D. Ind. July 20, 2012) (holding that state post-conviction
court’s “errors in connection with admission of evidence at the post-conviction hearing” were not “a basis
for granting federal habeas relief”); Carter v. Superintendent, 2011 WL 854875, at *24 (N.D. Ind. Mar. 8,
2011) (denying claim that “the state court violated his due process rights in connection with evidentiary
rulings it made in the post-conviction proceedings” because “such errors do not implicate the legality of
the petitioner’s confinement” and are not cognizable); U.S. ex rel. Greer v. Winters, 2004 WL 2064400, at
*3 (N.D. Ill. Sept. 13, 2004) (denying claim that post-conviction court “failed to accept the facts
contained in the petition and the accompanying affidavits and medical records as true” because “[t]his
claim is not cognizable”); U.S. ex rel. Johnson v. Tally, 47 F. Supp. 2d 943, 956 (N.D. Ill. 1999) (denying
claim that “‘all post[-]conviction decisions were made without receiving the record’” because the “gist”
of this claim was that “the state courts made errors in conducting his post-conviction proceedings”); U.S.
ex rel. Walton v. Gilmore, 1998 WL 485679, at *2 n.3 (N.D. Ill. Aug. 12, 1998) (summarily dismissing
challenge to the “fairness” of petitioner’s state post-conviction proceedings).

20

B.

Procedural Default

A federal court cannot reach the merits of a habeas claim that has been procedurally
defaulted. There are two “paradigmatic” forms of procedural default. Richardson v. Lemke, 745
F.3d 258, 268 (7th Cir. 2014). First, “a claim [is] procedurally defaulted through a petitioner’s
initial failure to preserve it with an objection, even if the petitioner later does attempt to present it
for review.” Id. “[W]hen 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.” Id. (citing Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir. 2010)).
And “[i]f a state court denies relief ‘by relying on a state law ground that is both independent of
the federal question and adequate to support the judgment, federal habeas review of the claim is
foreclosed.’” Carter v. Douma, 796 F.3d 726, 733 (7th Cir. 2015) (citation omitted).
Second, “a claim [is] procedurally defaulted when a petitioner fails to ‘fairly present’ his
claim to the state courts, regardless of whether he initially preserved it with an objection at the
trial level.” Richardson, 745 F.3d at 268. “To fairly present his federal claim, a petitioner must
assert that claim throughout at least one complete round of state-court review, whether on direct
appeal of his conviction or in post-conviction proceedings.” Id. (citing O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999)). “In Illinois, this means that a petitioner must have directly appealed
to the Illinois Appellate Court and presented the claim in a petition for leave to appeal to the
Illinois Supreme Court.” Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007). “[I]f a specific
claim is not presented to the state court when it is required to be, that claim is defaulted.”
Johnson v. Loftus, 518 F.3d 453, 455 (7th Cir. 2008). “As part of this [complete round]
requirement, a petitioner must have fairly presented both the operative facts and legal principles

21

that control each claim to the state judiciary.” Mulero v. Thompson, 668 F.3d 529, 536 (7th Cir.
2012) (quoting Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010)). In other words, the issue is
if “the state court was sufficiently alerted to the federal constitutional nature of the issue to
permit it to resolve that issue on a federal basis.” McDowell v. Lemke, 737 F.3d 476, 482 (7th
Cir. 2013) (quoting Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001)).
Federal courts will not review procedurally defaulted claims unless “the petitioner can
show both cause for and prejudice from the default,” or “demonstrate a sufficient probability that
our failure to review his federal claim will result in a fundamental miscarriage of justice.” Gray,
598 F.3d 324, 328 (7th Cir. 2010); Edwards v. Carpenter, 529 U.S. 446, 451 (2000). To show
cause, a petitioner must establish there was as “‘an objective factor, external to the defense, that
impeded the defendant’s efforts to raise the claim in an earlier proceeding. Prejudice means an
error which so infected the entire trial that the resulting conviction violates due process.’”
Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013) (citation omitted). The “objective
factors” include (1) “‘interference by officials that makes compliance * * * impractical’; (2)
constitutionally ineffective assistance of counsel; and (3) ‘a showing that the factual or legal
basis for a claim was not reasonably available to counsel.’” Guest, 474 F.3d at 930 (citations
omitted). To show that a “fundamental miscarriage of justice” would result, a petitioner must
establish that “a constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Before applying these principles here, the Court notes that Respondent raised the
procedural default defense for claims 2, 3, 5, and 6, but not Claims 1 and 4. While a district
court may raise procedural default sua sponte, it is “not permitted to override the state’s decision
implicit or explicit * * * to forego that defense.” Henderson v. Thieret, 859 F.2d 492, 498 (7th

22

Cir. 1988). The Seventh Circuit has explained that “where the State has responded to one habeas
claim on its merits while asserting that another is procedurally barred, it has implicitly waived
any contention that the first claim is also procedurally defaulted.” Perruquet, 390 F.3d at 516
(collecting cases). In Henderson, for example, the respondent raised the procedural default
defense to one claim, but deliberately declined to pursue this defense for another claim despite
the district court’s urging. 859 F.2d at 498. In that circumstance, the district court’s decision to
raise procedural default sua sponte was improper. Id. In contrast, the respondent in Perruquet
relied on procedural default for certain claims but not a due process claim. This did not show
waiver because the respondent had argued first that the due process claim was not cognizable.
390 F.3d at 516. “Logically, the argument that the State did make came first in order of priority
(the petition failed to state a cognizable federal claim); the procedural default argument springs
from a contrary premise (the petition did state a cognizable federal claim, but one that was never
presented to the state courts) that the district court never embraced.” Id. at 517. In those
circumstances, the failure to argue in the alternative that the claim had procedurally defaulted did
not “signal[] an intent to forgo such a defense.” Id. at 516.
The same is true here. Respondent argues first that Claims 1 and 4 are not cognizable
[19, at 10–11], and does not address the merits of these claims or further engage with them.
Respondent’s omission of the procedural default defense as an alternative ground for dismissing
Claims 1 and 4, therefore, does not suggest implicit waiver and the Court may consider this
argument for these claims. And, after examining the record, the Court concludes that nearly all
of Petitioner’s claims are procedurally defaulted: Claims 1 and 2 were rejected on independent
and adequate state procedural grounds and Claims 3(a), 4, 5, and 6 do not satisfy the “complete
round requirement.” Therefore, federal habeas review is foreclosed for all but Claim 3(b).

23

1.

Claims 1 and 2

Petitioner did not raise his prior inconsistent statement jury instruction argument (Claim
1) or his challenges to the State’s closing argument (Claim 2) in his post-conviction petition, but
he did raise both claims in his direct appeal and original PLA. [See 20-2, at 6; 20-5, at 3.]
Before the Illinois Appellate Court, Petitioner conceded that his trial counsel did not object to
this jury instruction at trial or raise this argument in his post-trial motion. [20-1, at 7; 20-2 at
23.] He also conceded that his trial counsel did not object to the State’s closing argument and
raised only one issue about the closing in his posttrial motion: the prosecutor’s argument that
Petitioner chose the evidence against him. [20-1, at 9–10; 20-2 at 31.] “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). Pursuant to Illinois law, the Illinois Appellate Court
found that both of these arguments had been “waived” or “subject to forfeiture.” [20-1, at 7, 10
(citing People v. Enoch, 122 Ill. 2d 176, 186 (1988) (“the failure to raise an issue in a written
motion for a new trial results in a waiver of that issue on appeal.”).]
In view of the foregoing circumstances, the state appellate court’s ruling that Petitioner
had failed to comply with state law requirements for preserving appellate issues constitutes an
independent and adequate state procedural ground of decision that precludes this Court’s habeas
review.4 See Lostutter v. Peters, 50 F.3d 392, 394–95 (7th Cir. 1995) (“the district court
[properly] refused to address its merits because the state appellate court’s holding that he had
waived his jury instruction claim established an independent and adequate state ground for the

4

To the extent Petitioner argues that Claim 1 relates to federal constitution violations, no state court has
addressed that claim. Because he has not fairly presented these federal claims through at least one
complete round of state-court review, Claims 1 is procedurally defaulted for this reason as well.
Whitfield, 66 F. App’x at 43; Chester, 2015 WL 1345767, at *5; Lenoir, 2015 WL 684743, at *7.

24

decision”); U.S. ex rel. Bruce v. McCann, 598 F. Supp. 2d 890, 898 (N.D. Ill. 2009) (Because
“Petitioner waived his prosecutorial misconduct claim by failing to include it in his post-trial
motion[,] * * * this Court is barred from reviewing Petitioner’s prosecutorial misconduct claim
on the merits under the adequate and independent state grounds doctrine[.]”); Mitchell v.
Williams, 2015 WL 5722447, at *6 (N.D. Ill. Sept. 29, 2015) (“The trial court relied on * * * the
state law proposition that 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.”).
The fact that the Illinois Appellate Court went on to consider both of Petitioner’s
arguments under plain error review “despite waiver” does not overcome this procedural bar.
[20-1, at 7, 10]; see, e.g., Gray v. Hardy, 598 F.3d 324, 329 (7th Cir. 2010) (“[T]he state court’s
conclusion that [petitioner] had not established plain error was not a decision on the merits, and
thus we agree with the district court that the claim is procedurally defaulted[.]”); Mitchell, 2015
WL 5722447, at *6 (“The Illinois appellate court’s alternative discussion of the claim on the
merits does not ameliorate the procedural default.”); United States v. Butler, 2016 WL 772804, at
*5 n.2 (N.D. Ill. Feb. 29, 2016) (holding that state appellate court’s discussion of whether jury
instruction constituted plain error does not excuse procedural default). “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.’” Brooks v. Walls, 279 F.3d 518, 523 (7th Cir. 2002) (citation
omitted). “When it does this, it has not abandoned the procedural ground but has instead added a
substantive failing to the procedural one.” Id. Moreover, “the determination that plain error had
not occurred is, in itself, an independent and adequate state law ground which precludes federal

25

review where the state court did not intend to forgive an earlier procedural default and reach the
merits of the federal claim.” U.S. ex rel. Mauldin v. McAdory, 2004 WL 1244119, at *5 (N.D.
Ill. June 4, 2004). Accordingly the Appellate Court’s finding of no plain error for Claims 1 and
2 represents yet another state law grounds that bars federal habeas review. Simply put, Claims 1
and 2 rest on independent and adequate state procedural grounds and are procedurally defaulted.
Petitioner cannot excuse his procedural default of both claims. He does not advance any
“actual innocence” arguments. Cf. House v. Bell, 547 U.S. 518, 537 (2006); Hayes v. Battaglia,
403 F.3d 935, 937 (7th Cir. 2005). Nor does he address specifically whether he can show cause
and prejudice to excuse default. However, his reply brief notes that his direct appellate counsel
“raised procedural ineffective assistance of trial counsel” for both claims. [22, at 10–11.] By
this, Petitioner means that his direct appellate counsel argued “alternatively” that his trial
attorney was ineffective for failing to object to this jury instruction and closing argument—an
argument advanced in an effort to persuade the Illinois Appellate Court to consider both issues
even though they were waived. [20-2, at 24, 33.] This alternative argument appears in two
paragraphs in his direct appellate counsel’s opening brief [id.], one sentence in his reply brief
[20-4, at 4], and in roughly same form in Petitioner’s handwritten PLA. [20-5, at 23–26, 37.]
Because Petitioner is proceeding pro se, the Court construes the comment in his reply as
implicating the second “objective factor” that can constitute sufficient cause. Guest, 474 F.3d at
930. “Attorney error rising to the level of ineffective assistance of counsel can constitute cause
to set aside a procedural default.”

Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008).

“However, the exhaustion doctrine requires that an ineffective-assistance claim be presented to
the state court as an independent claim before it can be used to excuse a procedural default.”

26

Carter v. Pfister, 2016 WL 5843626, at *6 (N.D. Ill. Oct. 3, 2016); Edwards, 529 U.S.at 453;
Murray, 477 U.S. at 489; Smith, 565 F.3d at 352.
Raising ineffective assistance arguments in this manner does not avoid default. Petitioner
did not “present[]” an ineffective assistance claim “to the state courts as an independent claim”
on direct appeal. Murray, 477 U.S. at 489 (emphasis added); Edwards, 529 U.S.at 453. Rather,
he argued on appeal that his trial counsel’s ineffectiveness was a hook to reach his forfeited jury
instruction and closing argument claims. [20-2, at 24, 33.] That is how the state appellate court
understood this argument. [See 20-1, at 7 (“Defendant alternatively argues that the error was due
to ineffectiveness of counsel and this court may consider the issue despite waiver[.]”); id. at 10
(“defendant again argues that this matter must be reviewed under the plain error doctrine or due
to ineffective assistance of counsel for failing to object to the State’s comments”).] Petitioner’s
appellate counsel did not advance, and the state courts did not consider, a constitutional analysis
of the right to effective assistance of counsel as a distinct basis to grant a new trial.
Moreover, although Petitioner raised independent claims of ineffective assistance in his
post-conviction petition, he did not identify the substance behind Claim 1 or 2 as a reason that
his counsel was ineffective. Petitioner must have “identified the specific acts or omissions of
counsel that form the basis for” the ineffective assistance claim to avoid procedural default.
Johnson v. Hulett, 574 F.3d 428, 432 (7th Cir. 2009); accord Stevens v. McBride, 489 F.3d 883,
894 (7th Cir. 2007); Pole v. Randolph, 570 F.3d 922, 935 (7th Cir. 2009); Ogden v. Hulick, 2008
WL 1805386, at *7 (C.D. Ill. Apr. 18, 2008). The state courts considering Petitioner’s direct
appeal were not “sufficiently alerted” to a standalone ineffective assistance of trial counsel claim
on these bases. McDowell, 737 F.3d at 482. Petitioner’s failure to independently exhaust his
argument that this specific aspect of his trial counsel’s performance constituted ineffective

27

assistance of counsel means this “claim” is defaulted. Because there is no reason to excuse this
“second level” of default, Petitioner’s defaulted claim of ineffective assistance of counsel cannot
excuse his procedural default of Claims 1 and 2, and these claims are “fully defaulted.”
Dellinger v. Bowen, 301 F.3d 758, 766 (7th Cir. 2002).
In any event, even if this ineffective assistance claim was not procedurally defaulted,
Petitioner cannot show the Illinois Appellate Court erred when it found that Petitioner was not
sufficiently “prejudiced” because the evidence against him was “overwhelming.” [20-1, at 9];
see also Whitehead v. Cowan, 263 F.3d 708, 729 (7th Cir. 2001) (“Strong evidence of guilt
eliminates any lingering doubt that the prosecutor’s remarks unfairly prejudiced the jury’s
deliberations.”). “State factual findings are presumed correct, however, unless the petitioner
rebuts the presumption by clear and convincing evidence.” U.S. ex rel. Russell v. Gaetz, 628 F.
Supp. 2d 820, 835 (N.D. Ill. 2009) (finding that the Illinois Appellate Court did not rely on an
“unreasonable determination of the facts when it concluded that the evidence was not closely
balanced”). Although Plaintiff asserts that he “challenges the presumption of correctness of the
State court’s findings” [1, at 8], he does not identify any evidence—let alone clear and
convincing evidence—that undermines the state court’s conclusion that the evidence at trial was
overwhelmingly against him or the manner in which the court weighed this evidence [20-1, at 8].
Moreover, on habeas review, “[t]he pivotal question is whether the state court’s
application of the Strickland [v. Washington, 466 U.S. 688 (1984)] standard was unreasonable,”
and “[a] state court must be granted a deference and latitude that are not in operation when the
case involves review under the Strickland standard itself.” Harrington v. Richter, 562 U.S. 86,
101 (2011); see also Bell v. Cone, 535 U.S. 685, 698–99 (2002); Murrell v. Frank, 332 F.3d
1102, 1111 (7th Cir. 2003). When the “highly deferential” standards created by Strickland and §

28

2254(d) are applied together, review is “doubly deferential.” Knowles v. Mirzayance, 556 U.S.
111, 124 (2009). Thus, “the question is not whether counsel’s actions were reasonable. The
question is whether there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.” Harrington, 562 U.S. at 105.
Applying this doubly deferential standard, the Court cannot say that the Illinois Appellate
Court unreasonably weighed the evidence against Petitioner or unreasonably concluded that
these alleged errors identified would not have changed the outcome at trial. The nearly identical
eyewitness testimony from Smith and Knox was corroborated by Petitioner’s signed statement to
police, portions of his trial testimony, and McKee’s testimony to the grand jury. Petitioner and
McKee admitted to lying to the police, and their stories were that Triplett had fired into the
crowd to stop others from stealing their guns. In this context, trial counsel’s failure to insist on
the entire Illinois Pattern Instruction because of how it may have impacted the jury’s evaluation
of Knox’s admittedly false affidavit made three years after the shooting does not fall below an
objective standard of reasonableness or present an error “so serious as to deprive the defendant
of a fair trial.” Strickland, 466 U.S. at 687–68. The same is true of the failure to object to
rhetorical aspects of State’s closing argument: arguing that the jury can rely on its instructions to
resolve questions is not obviously erroneous, emphasizing the importance of a defendant’s
confession is far from unusual, and raising the prospect that a defendant could cover up part of
his or her crime scene is not an improper response to Petitioner’s argument about the absence of
DNA evidence. In any event, the Court instructed the jury that these arguments were not
evidence [1, at Ex. DD, at NN-32]. Therefore, even if not defaulted, Petitioner’s trial counsel’s
alleged ineffective assistance in failing to raise these arguments did not result in sufficient
“prejudice” to overcome default of Claims 1 and 2.

29

2.

Claim 4

Claim 4 is that Petitioner’s post-conviction trial judge dismissed his petition “without
reading it,” evidenced by the fact that his petition “raised five distinction issues, but the judge, in
dismissing it, addressed only two.” [1, at 9.] By definition, this alleged error occurred after
Petitioner’s direct appellate review process had concluded, and Petitioner’s only avenue to raise
this claim would have been as part of his post-conviction review proceedings. Petitioner did
raise this claim in his post-conviction appeal to the Illinois Appellate Court [see 20-9, at 53–56],
but he omitted this argument from his post-conviction PLA [see 20-12]. As a result, even if this
claim were cognizable, Petitioner has not fairly presented this claim through one complete round
of state-court review. Petitioner does not identify any cause to excuse this omission from his
attorney-drafted post-conviction PLA, and thus the Court’s review of this claim is foreclosed.
3.

Claims 3, 5, and 6

To evaluate whether Petitioner has fairly presented Claims 3, 5, and 6 through one
complete round of state court proceedings, the Court must both untangle these overlapping
claims and address how they were raised in state court. Again, Claim 5 is that the trial judge
abused his discretion in denying a jury instruction on the lesser-included offense of reckless
discharge of a firearm; Claim 6 is that the trial judge abused his discretion in denying a
spoliation instruction based on Detective El-Amin’s destruction of his investigation notes; and
Claim 3 is that Petitioner’s direct appellate counsel was ineffective for failing to raise both
arguments. Petitioner did not raise any of these claims in his direct appeal channel, which means
these claims are viable here only if “both the operative facts and legal principles that control each
claim” were presented at each stage of the post-conviction process. Mulero, 668 F.3d at 536.

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Respondent concedes that Petitioner raised Claims 5 and 6 in his post-conviction petition
[19, at 14], but disputes that Petitioner raised either of his ineffective assistance of appellate
counsel arguments in Claim 3 in his 2008 and 2011 post-conviction petitions [see id. at 13–14].
The Court disagrees. “As [Petitioner] prepared the petition without the assistance of counsel, we
owe it a generous interpretation.” Lewis v. Sternes, 390 F.3d 1019, 1027 (7th Cir. 2004) (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972)). Here, Petitioner’s 2011 petition argues that his
trial counsel was ineffective for five reasons, listed as 6(a)–(e).

Reason 6(b) states that

Petitioner’s “trial counsel failed to put forth the relevant law pertaining to a lesser included
offense” [20-23, at 93], which dovetails with the Petitioner’s related argument that the trial judge
abused his discretion in denying the lesser-included offense instruction [id. at 29–36]. Reason
6(e) states that “trial counsel failed to rely upon the facts of the case and the totality of evidence
when requesting that the jury be instructed on Defense #2. Counsel’s argument should have
rested on the standard set forth in Brady and Bagley.” Id. at 94–95. “Defense #2” refers to
Petitioner’s second proposed jury instruction: the spoliation instruction. [See 1, at Ex. N, at NN13–15; 20-23, at 87–90.] Petitioner then incorporated his arguments about his trial counsel’s
ineffectiveness into the claim that his direct appellate counsel was ineffective, stating “petitioner
asserts that his appellate counsel was ineffective in failing to raise on direct appeal such issues as
cited herein at paragraph 6(a)[,] (b)[,] (c)[,] (d)[, and] (e).” Therefore, Petitioner’s argument that
his counsel failed to pursue the lesser-included offense and spoliation instructions on direct
appeal was raised in his post-conviction petition. So far, so good for Claims 3, 5, and 6.
Petitioner’s post-conviction appeal to the Illinois Appellate Court, however, did not
present these arguments distinctly.

[20-9.]

His first “issue[] presented for review” is

“[i]neffective assistance of appellate counsel.” Id. at 9. He identifies the “two meritorious

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claims” that his direct appellate counsel should have raised:

“[d]enial of lesser-included

instruction” and “[d]enial of spoliation instruction.” Id. Petitioner ends his description of these
sub-issues with the question, “should appellate counsel have raised this issue?” Id. In the
argument section of his brief, Petitioner’s sets out substantive arguments as to why the trial
judge’s denial of the lesser-included offense and spoliation instructions was reversible error but
does so only under the umbrella of his ineffective assistance of appellate counsel argument. See
id. at 26–48. It seems clear that Petitioner’s ineffective assistance of appellate counsel argument
(Claim 3) was fairly presented here. The question is, therefore, whether Petitioner’s nesting of
his trial judge “abuse of discretion” arguments (Claims 5 and 6) within his ineffective assistance
of appellate counsel argument is sufficient to avoid procedural default of Claims 5 and 6.
The Seventh Circuit has on occasion found “a claim to be fairly presented where the only
discussion of it appeared within the discussion of another claim.” McDowell, 737 F.3d at 482.
Such a “nested claim” must “be either (1) framed so it could stand on its own, were it presented
in a different section of the post-conviction petition or (2) supported by ‘very substantial
analysis’ throughout the petition.” Id. Substantive claims may be nested within an ineffective
assistance of counsel claim. See, e.g., Rittenhouse v. Battles, 263 F.3d 689, 696 (7th Cir. 2001).
However, “the leeway afforded to habeas petitioners in ‘reformulating’ due process arguments is
much more limited than in other constitutional contexts.” Kurzawa, 146 F.3d at 443. In
Rittenhouse, the petitioner’s “briefs to the Illinois courts only discussed the problems with the
challenged instructions within the context of his argument that he was denied the effective
assistance of trial counsel for his attorney’s failure to object to these instructions.” Id. However,
a “close review” of his argument showed that he “did in fact present the Illinois Appellate Court
with a very substantial analysis of alleged problems with the jury instructions.” Id. Importantly,

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this argument was that the erroneous “instructions created a mandatory presumption of legal
responsibility[, which] clearly implicates the Due Process Clause.” Finally, the state appellate
court’s analysis was that “the instructions did not create an improper presumption[, which]
squarely addresses and rejects Rittenhouse’s argument that is essentially a due process
argument.” Id. Thus, while a “close call,” the Seventh Circuit erred on the side of finding the
underlying claim not procedurally defaulted. Id.
Unlike Rittenhouse, the Court concludes that Claims 5 and 6 were not fairly presented
before the Illinois Appellate Court in a way that clearly implicates the Fourteenth Amendment’s
Due Process Clause. Petitioner’s appellate brief extensively discussed how the trial judge erred
in denying both instructions [20-9, at 26–48], but (as noted above) that analysis made only
passing reference to “due process” [id. at 27, 35] and largely focused on the Illinois common
criminal design doctrine and appropriate sanctions for violations of Illinois discovery rules. For
example, Petitioner’s counsel framed the spoliation issue as “[h]ow the state violated discovery
rules.” Id. at 36. He argued that “as in [Illinois Supreme Court case], the State violated [Illinois]
Supreme Court Rule 412(a), requiring the State to disclose written witness statements.” Id. He
also made clear that “this error alone would not require relief” and that his “claim[] ultimately
rest[s] on ineffective assistance of appellate counsel.” Id. at 40. In short, none of this analysis
was framed to “stand alone” as an independent federal constitutional violation and does not
consist of a “very substantial analysis” that squarely addresses what is “essentially” a due
process argument. McDowell, 737 F.3d at 482.
Moreover, the background section of the Appellate Court’s opinion states that “the two
claims that are the subject of this appeal” are (1) that the “trial judge deprived petitioner of his
right to due process and a fair trial,” and (2) that the court’s “analysis” was premised on the

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principle that “appellate counsel is not ineffective for choosing not to raise meritless issues” and
goes on to address whether these claims were “meritless” under Illinois law. Johnson, 2014 IL
App (1st) 120750-U, ¶¶ 12, 18–50; see also U.S. ex rel., Nance v. Fairman, 707 F.2d 936, 941
(7th Cir. 1983) (holding that petitioner who asserted that exclusion of prior inconsistent
statement violated Illinois evidence law, but did not raise a Sixth Amendment argument, could
not do so on habeas review, explaining that “there is no doubt that the claim presented to the
state courts arises out of the same factual circumstances as petitioner’s constitutional claim” but
“the issue presented to the state courts is a different legal issue from that presented in the federal
court” (emphasis added)). The Illinois Appellate Court concluded that, “based on the foregoing
authorities”—that is, Illinois case law—“the trial court did not abuse its discretion in refusing to
instruct the jury on reckless discharge” because “[t]he codefendant’s act of firing into the crowd
was in furtherance of petitioner and his codefendant’s admitted common criminal design as a
matter of [Illinois] law.” Id. ¶¶ 33, 38. Likewise, the court held that “the alleged error” from not
receiving the spoliation sanction “was harmless * * * because the instruction would not have
impacted the weight of the evidence or credibility of the State’s witnesses sufficiently to cause a
different result.” Id. ¶¶ 44–50. Petitioner did not raise—and thus not surprisingly the state
appellate court never meaningfully addressed—whether the failure to give these instructions
violated due process or guarantees of fundamental fairness.

Accordingly, any federal

constitutional claims underlying Claims 5 and 6 are procedurally defaulted.
That leaves only Petitioner’s claim that his direct appellate counsel was ineffective for
failing to raise the lesser-included offense instruction (Claim 3(a)) and the spoliation instruction
(Claim 3(b)). In his post-conviction PLA, Petitioner first argued that the trial judge abused his
discretion in finding that the lesser-included offense was not appropriate based on the Illinois

34

“common design rule of criminal liability.” [20-12, at 6.] Petitioner did not argue that his direct
appellate counsel was ineffective for failing to raise this specific argument.

Id. at 6–10.

Notably, Petitioner’s second PLA argument was that “his appellate counsel should have raised
the spoliation instruction issue.” Id. at 11; see also id. at 15–21 (discussing the appellate court’s
harmless error analysis, which only applied to the spoliation instruction argument, and arguing
that “appellate counsel’s failure to raise this issue” was deficient). “Each ground of ineffective
assistance is considered separate for exhaustion purposes,” Wilson v. Superintendent, 2012 WL
1714734, at *8 (N.D. Ind. May 14, 2012), and “[t]he failure to alert the state court to a complaint
about one aspect of counsel’s assistance will lead to a procedural default.” Stevens, 489 F.3d at
894; accord Pole, 570 F.3d at 935; Ogden, 2008 WL 1805386, at *7. Therefore, Claim 3(a) was
not raised through one complete round of state court proceedings and is procedurally defaulted.
Only Claim 3(b) survives for review on the merits.
C.

Merits

To prevail on his claim that his direct appellate counsel was ineffective for failing to raise
the spoliation instruction (Claim 3(b)), Petitioner must meet the familiar two-pronged
“performance” and “prejudice” test set forth in Strickland, establishing that (1) his lawyer’s
performance fell below an objective standard of reasonableness and (2) there is a reasonable
probability that the result of the proceedings would have been different but for his counsel’s
“unprofessional errors.” Strickland, 466 U.S. at 694; see also Ward v. Jenkins, 613 F.3d 692,
698 (7th Cir. 2010). Both components of the test must be satisfied or the claim must be denied;
“the lack of either is fatal.” Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996).
Petitioner can establish that his direct appellate counsel’s performance was
constitutionally deficient only “if counsel fails to appeal an issue that is both obvious and clearly

35

stronger than one that was raised.” Winters v. Miller, 274 F.3d 1161, 1167 (7th Cir. 2001);
accord Smith v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009). Appellate counsel is not required to
“raise every non-frivolous issue under the sun.” Mason v. Hanks, 97 F.3d 887, 893 (7th Cir.
1996). In fact, the “process of ‘winnowing out weaker arguments on appeal and focusing on’
those more likely to prevail, far from being evidence of incompetence, is the hallmark of
effective appellate advocacy.” Makiel v. Butler, 782 F.3d 882, 897 (7th Cir. 2015) (quoting
Smith v. Murray, 477 U.S. 527, 536 (1986)).

It is “generally difficult” to prove that the

“unraised claim is clearly stronger than a claim that was raised * * * because the comparative
strength of two claims is usually debatable.” Makiel, 782 F.3d at 898 (citation and internal
quotation marks omitted). Furthermore, a petitioner demonstrates the requisite prejudice only
when appellate counsel fails to raise an issue that “may have resulted in a reversal of the
conviction, or an order for a new trial.” Winters, 274 F.3d at 1167 (citing Mason, 97 F.3d at
893).
On appeal, Petitioner’s counsel challenged the prior inconsistent statement jury
instructions and the State’s closing argument. [20-2, at 6.] It is far from “obvious” that the
spoliation instruction argument was stronger than either issue that his appellate counsel raised.5
Petitioner does not identify—either here or in his state court filings—any case law establishing
that counsel’s failure to raise the denial of a spoliation jury instruction constitutes ineffective
assistance. In fact, there is case law to the contrary. See Fry v. Duckworth, 105 F.3d 660 (7th
Cir. 1996) (Table) (applying Youngblood and affirming denial of habeas relief for claims of
5

The Court assumes that the Illinois Appellate Court would have found Petitioner’s original post-trial
motion sufficient to preserve his trial counsel’s request for an adverse inference spoliation instruction,
despite the fact that the motion characterizes this claim as “the Court erred in not allowing instruction to
disregard the testimony of Detective El-Amin” [1, at Ex. E (emphasis added)]. Of course, if this claim
was not preserved in a post-trial motion, then it was forfeited. Enoch, 122 Ill. 2d at 186. And Petitioner
cannot show his appellate counsel’s infectiveness for failing to raise a forfeited claim since “there is no
chance the outcome would have been different.” Richardson, 745 F.3d at 273.

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ineffective assistance of appellate counsel where petitioner argued his attorney should have
raised due process claims related to police’s destruction of petitioner’s mugshot).
Had his appellate counsel looked to federal law, Youngblood would have required that
Petitioner prove that Detective El-Amin acted in “bad faith” when he destroyed his notes, that
the loss of this evidence was “material to [Petitioner’s] defense by showing that ‘the evidence
possessed exculpatory value apparent before it was destroyed [or lost,] and that it was of such a
nature that he was unable to obtain comparable evidence by other means.’” Fry, 105 F.3d 660,
at *3 (citations omitted). Petitioner’s claim here falls short of the mark in several respects. First,
Petitioner has never presented evidence that Detective El-Amin acted in bad faith when, pursuant
to the routine practice of Chicago Heights Police Department, he destroyed his notes four years
before the trial. Rather, Petitioner’s post-conviction argument has been that this summary report
was not an “adequate substitute” for the detective’s notes and the trial court could have “no
confidence that his report faithfully transcribed” his notes. [20-9, at 37–38.] Those arguments
fall far short of suggesting bad faith. See Adams v. Uchtman, 2007 WL 2710486, at *7 (S.D. Ill.
Sept. 12, 2007) (“[A] showing of mere negligence on the part of the police in losing evidence, if
in fact the circumstances here even rise to the level of negligence, does not constitute a due
process violation.”). Likewise, there was no testimony or evidence that these notes “possessed
exculpatory value apparent before [they were] destroyed.” Fry, 105 F.3d 660, at *3. Detective
El-Amin’s testified that everything “important to this case” from his notes appeared in his
summary report [20-9, at 38], and Petitioner could not satisfy his burden by speculating that this
evidence would have somehow been exculpatory. Finally, Petitioner testified that he knew the
other people playing dice and in the alley where shots were fired, and therefore offers no reason
to think he was unable to obtain “comparable evidence” identifying witnesses without Detective

37

El-Amin’s notes. Fry, 105 F.3d 660, at *3. “Thus, [his] appellate counsel acted within the realm
of reasonable professional judgment in not raising these claims on direct appeal because they are
clearly non-meritorious.” Id.
Even focusing only on state law, the Court cannot say that Petitioner’s direct appellate
counsel fell below an objective standard of reasonableness by failing to raise this spoliation
argument. As pointed out by the State in its post-conviction appellate brief in opposition, Illinois
courts in June 2001 had held that police officers were not obligated to preserve their field notes if
they were incorporated into police reports. [20-1, at 30 (citing People v. Wittenmyer, 151 Ill. 2d
175, 189 (1992) and People v. Howard, 121 Ill. App. 3d 938 (1st Dist. 1984)]. Even if his
counsel could distinguish these cases and convince the state court that the Detective El-Amin
was required to preserve his notes, Petitioner’s counsel would need to still need to persuade a
reviewing court that the trial judge abused his discretion in denying a spoliation sanction. People
v. Morgan, 112 Ill. 2d 111, 135 (1986) (explaining that the “correct sanction” for a discovery
violation “is left to the trial court’s discretion, and the judgment of the trial judge is given great
weight”). And, if he overcame this hurdle, Petitioner still would bear the burden to prove “that
he was prejudiced by the discovery violation and the trial court failed to eliminate the prejudice.”
People v. Lovejoy, 235 Ill. 2d 97, 120 (2009). Petitioner’s counsel may have simply concluded
that demonstrating abuse of discretion in the face of these facts and this case law was unlikely to
be successful. Or his counsel may have concluded that, based on the weight of the evidence
against Petitioner and that his counsel in closing argued that “we don’t know who all [Detective
El-Amin] interviewed and what those persons said or about any leads that he followed up on”
because he destroyed his notes [1, at Ex. D, at NN68], it would be incredibly difficult to show
that he was prejudiced by the failure to receive this instruction. Regardless, the Court cannot say

38

that Petitioner’s counsel was “objectively” deficient for failing to raise this claim despite its
obvious hurdles or that this argument was “clearly stronger” than the claims he raised. Winters,
274 F.3d at 1167. Thus, the failure to raise this argument on direct appeal does not amount to
ineffective assistance of appellate counsel. Harrington, 562 U.S. at 105.
Likewise, even if this claim should have been raised on direct appeal, Petitioner cannot
show prejudice. As the Illinois Appellate Court explained when it considered Petitioner’s postconviction appeal, “[t]he failure to give an appropriate jury instruction as a sanction against the
State for failing to comply with a discovery order is subject to harmless error analysis.”
Johnson, 2014 IL App (1st) 120750-U, ¶ 43. Under Illinois law, “instructional errors are deemed
harmless if it is demonstrated that the result of the trial would not have been different had the
jury been properly instructed.” People v. Washington, 2012 IL 110283, ¶ 60 (2012). The Illinois
Appellate Court concluded on direct appeal that the evidence against Petitioner was not closely
balanced, but rather was “overwhelming[ly]” weighted against him. [20-1, at 8.] In other words,
even if Petitioner’s direct appellate counsel had raised this spoliation argument, the weight of the
evidence and thus the outcome at trial would have been the same. See also Johnson, 2014 IL
App (1st) 120750-U, ¶ 47 (finding that “it has been demonstrated that the outcome of trial would
not have been different with the instruction regarding the detective’s notes”). Therefore, the trial
court’s “error” in denying this instruction would have been harmless on direct appeal too.
Because advancing this argument on direct appeal would not have led to reversal of his
conviction, Petitioner cannot show prejudice from his direct appellate counsel’s failure to raise
this argument and Claim 3(b) under Strickland must fail. Winters, 274 F.3d at 1167.
To summarize, Claims 1, 4, 5, and 6 do not raise cognizable federal constitutional claims,
Claims 1, 2, 3(a), 4, 5, and 6 were procedurally defaulted, and Claim 3(b) does not show an

39

unreasonable application of the Supreme Court case law regarding ineffective assistance of
appellate counsel. Therefore, the Court denies habeas relief for all of Petitioner’s claims.
IV.

Certificate of Appealability
Per Rule 11(a) of the Rules Governing Section 2254 Proceedings, the “district court must

issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
Accordingly, the Court must determine whether to grant Petitioner a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2).
A habeas petitioner does not have an absolute right to appeal a district court’s denial of
his habeas petition; instead, he must first request a certificate of appealability. See Miller-El v.
Cockrell, 537 U.S. 322, 335 (2003); Sandoval v. United States, 574 F.3d 847, 852 (7th Cir.
2009). A habeas petitioner is entitled to a certificate of appealability only if he can make a
substantial showing of the denial of a constitutional right. Miller-El, 537 U.S. at 336; Evans v.
Circuit Court of Cook Cnty., Ill., 569 F.3d 665, 667 (7th Cir. 2009). Under this standard,
Petitioner must demonstrate that reasonable jurists would find the Court’s assessment of his
§ 2254 claims debatable or wrong. Miller-El, 537 U.S. at 336; Slack v. McDaniel, 529 U.S. 473,
484 (2000). And in cases where a district court denies a habeas claim on procedural grounds, the
court should issue a certificate of appealability only if the petitioner shows that (1) jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and (2) jurists of reason would find it debatable whether the district court
was correct in its procedural ruling. See Slack, 529 U.S. at 484. “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or that the

40

petitioner should be allowed to proceed further. In such a circumstance, no appeal would be
warranted.” Id. at 485; Stamps v. Duncan, 2014 WL 3748638, at *4 (N.D. Ill. July 30, 2014).
In view of the analysis set forth above, the Court concludes that Petitioner has not made a
substantial showing that reasonable jurists would differ regarding the merits of his claims.
Petitioner’s claims are non-cognizable, procedurally defaulted, and/or lack merit, and thus
further review is not warranted. Accordingly, the Court declines to certify any issues for appeal
pursuant to 28 U.S.C. § 2253(c)(2).
V.

Conclusion
For these reasons, the Court denies Petitioner’s application for a writ of habeas corpus

under 28 U.S.C. § 2254 [1]. The Court declines to certify any issues for appeal under 28 U.S.C.
§ 2253(c)(2), and directs the Clerk to enter judgment in favor of Respondent.

Dated: May 9, 2017

_________________________________
Robert M. Dow, Jr.
United States District Judge

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