Castellano v. Pierce

Filing 22

MEMORANDUM Opinion and Order. Signed by the Honorable Samuel Der-Yeghiayan on 8/30/2017. Mailed notice (tt, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GREGORY CASTELLANO,

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Petitioner,
v.
MICHAEL MELVIN,
Respondent.

No. 16 C 11487

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Petitioner Gregory Castellano’s (Castellano)
pro se petition for writ of habeas corpus (Petition) brought pursuant to 28 U.S.C. §
2254 (Section 2254). For the reasons stated below, the Petition is denied.

BACKGROUND
In 2008, in Illinois state court, Castellano was convicted by a jury of murder
and Castellano was sentenced to fifty-three years of imprisonment. Castellano filed
an appeal, which was denied. Castellano filed a petition for leave to appeal (PLA)
with the Illinois Supreme Court, which was denied in September 2012. In March,
Castellano filed a post-conviction petition, which was denied. The Illinois Appellate
court affirmed the trial court, and in March 2016, the Illinois Supreme Court denied

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the PLA. In October 2016, Castellano filed a motion for leave to file a postconviction petition, which was denied. In December 2016, Castellano filed the
instant Petition. Respondent has filed an answer and opposes the Petition.

LEGAL STANDARD
An individual in custody pursuant to state court judgment may seek a writ of
habeas corpus pursuant to Section 2254, which provides the following:
An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to
any claim that was adjudicated on the merits in State court proceedings unless
the adjudication of the claim--(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). The decision made by a state court is deemed to be contrary to
clearly established federal law “‘if the state court applies a rule different from the
governing law set forth in [Supreme Court] cases, or if it decides a case differently
than [the Supreme Court has] done on a set of materially indistinguishable facts.’”
Emerson v. Shaw, 575 F.3d 680, 684 (7th Cir. 2009)(quoting Bell v. Cone, 535 U.S.
685, 694 (2002)). The decision by a state court is deemed to involve an unreasonable
application of clearly established federal law “‘if the state court correctly identifies
the governing legal principle from [Supreme Court] decisions but unreasonably
applies it to the facts of the particular case.’” Emerson, 575 F.3d at 684 (quoting
Bell, 535 U.S. at 694).
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DISCUSSION
This court has liberally construed Castellano’s pro se filings. See Perruquet v.
Briley, 390 F.3d 505, 512 (7th Cir. 2004)(stating that “[a]s [the plaintiff] was without
counsel in the district court, his habeas petition [wa]s entitled to a liberal
construction”); Greer v. Board of Educ. of City of Chicago, Ill., 267 F.3d 723, 727
(7th Cir. 2001)(indicating that a court should “liberally construe the pleadings of
individuals who proceed pro se”). Castellano asserts in the Petition: (1) his trial
counsel was ineffective for stating in his opening statement that he would call an
alibi witness and not doing so (Claim 1), (2) that his trial counsel was ineffective for
failing to present Castellano’s parents as alibi witnesses (Claim 2), (3) that his trial
counsel was ineffective for failing to preserve a hearsay objection (Claim 3), (4) that
his trial counsel was ineffective for failing to preserve a Confrontation Clause
objection (Claim 4), (5) that his counsel was ineffective at a post-trial ineffectiveness
hearing (Claim 5), (6) that his appellate counsel was ineffective (Claim 6), and (7)
that the admission of certain statements violated the Confrontation Clause (Claim 7).

I. Procedurally Defaulted Claims
Respondent argues that Claims 3,4, 6, and 7 are procedurally defaulted.

A. Default
Respondent contends that Castellano failed to raise Claims 3,4, 6, and 7
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through one complete round of the state court appellate review process. A district
court “cannot review a habeas petitioner’s constitutional issue unless he has provided
the state courts with an opportunity to resolve it ‘by invoking one complete round of
the state’s established appellate review process.’” Byers v. Basinger, 610 F.3d 980,
985 (7th Cir. 2010)(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). If a
habeas petitioner failed to “properly assert[] his federal claim at each level of state
court review,” the petitioner is deemed to have “procedurally defaulted that claim.”
Malone v. Walls, 538 F.3d 744, 753 (7th Cir. 2008)(quoting Lewis v. Sternes, 390
F.3d 1019, 1025 (7th Cir. 2004)); see also Johnson v. Hulett, 574 F.3d 428, 431 (7th
Cir. 2009)(stating that “[t]o obtain federal habeas review, a state prisoner must first
submit his claims through one full round of state-court review,” and that “[t]he
penalty for failing to fully and fairly present [] arguments to the state court is
procedural default”). A petitioner, in exhausting his state court remedies, has “‘the
duty to fairly present his federal claims to the state courts.’” Malone, 538 F.3d at
753 (stating that fair presentment includes “‘the petitioner . . . assert[ing] his federal
claim through one complete round of state-court review, either on direct appeal of his
conviction or in post-conviction proceedings’”)(quoting Lewis, 390 F.3d at 1025).
The record does not reflect that Castellano presented Claims 3,4, 6, or 7 in his
PLA on direct appeal. (R Ex. N 2, 11). Further, the record does not indicate that
Castellano presented Claims 3,4, 6, or 7 in his post-conviction petition. (R Ex. P 7).
Castellano thus failed to present such claims through one complete round of the state
court appellate process. Therefore, Claims 3,4, 6, and 7 are procedurally defaulted.
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The court also notes that even if the claims were not procedurally defaulted, they
lack any merit.

B. Justification to Excuse Default
Respondent also argues that there are no facts in this case that provide a
justification to excuse the default of Claims 3,4, 6, or 7. A procedurally defaulted
claim can still be considered by a district court “if a petitioner can show cause and
prejudice or a fundamental miscarriage of justice.” Coleman v. Hardy, 628 F.3d 314,
318 (7th Cir. 2010); see also Kaczmarek v. Rednour, 627 F.3d 586, 591 (7th Cir.
2010)(stating that “[a] federal court on collateral review will not entertain a
procedurally defaulted constitutional claim unless the petitioner can establish cause
and prejudice for the default or that the failure to consider the claim would result in a
fundamental miscarriage of justice”); Holmes v. Hardy, 608 F.3d 963, 968 (7th Cir.
2010)(stating that a “way to avoid procedural default is to show actual innocence,
that is, to show that in light of new evidence, it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a reasonable
doubt”)(internal quotations omitted)(quoting Schlup v. Delo, 513 U.S. 298, 327
(1995)); Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010)(stating that “default
could be excused if [the petitioner] can establish cause and prejudice, or establish
that the failure to consider the defaulted claim will result in a fundamental
miscarriage of justice”). In the instant action, Castellano has not provided facts
showing that he was prevented from properly presenting Claims 3, 4, 6, or 7 in the
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state system in order to avoid the procedural default. Castellano has not shown cause
and prejudice. Nor has Castellano shown actual innocence or a fundamental
miscarriage of justice that would excuse the procedural default.

II. Claim 5
As indicated above, Castellano contends in Claim 5 that his counsel was
ineffective at a post-trial ineffectiveness hearing. As Respondent correctly points
out, at a post-conviction hearing in state court on the issue of effectiveness of
counsel, Castellano had no right to counsel. The state court’s decision as to whether
to grant counsel to Castellano at the ineffectiveness hearing was a matter of
discretion accorded to the state court under state law. See, e.g., People v. Simcox,
2015 WL 1408540, at *4-*5 (Ill. App. Ct. 2015). Thus, Claim 5 is not cognizable for
habeas review. Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004)(stating that
“[t]he remedial power of a federal habeas court is limited to violations of the
petitioner's federal rights, so only if a state court's errors have deprived the petitioner
of a right under federal law can the federal court intervene”); see also Thomas v.
Williams, 822 F.3d 378, 384 (7th Cir. 2016)(explaining that “[i]n those cases, the
state court judgment rests on an independent and adequate state ground, and
principles of comity and federalism dictate against upending the state-court
conviction”). The court also notes that even if Claim 5 were a cognizable claim, it is
factually baseless based on the record and lacks any merit.

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III. Claims 1 and 2
Respondent argues that the state courts rejected Claims 1 and 2 on their merits
and that Castellano has not shown that habeas relief is warranted on such claims. As
indicated above, Castellano alleges in Claims 1 and 2 that his trial counsel was
ineffective for stating that he would call an alibi witness in his opening statement and
not doing so, and for failing to present Castellano’s parents as alibi witnesses. To
show ineffective assistance of counsel, a petitioner must establish that: “(1) his
attorney’s performance fell below an objective standard of reasonableness, and (2) he
suffered prejudice as a result.” Wyatt, 574 F.3d at 457-58 (citing Strickland, 466
U.S. at 687-88. On the post-conviction appeal, the Illinois Appellate Court applied
the correct law and correctly found that Castellano’s counsel acted within the scope
of what constituted effective assistance of counsel when he decided not to call
Castellano’s parents as alibi witnesses as a matter of trial strategy. See also
McElvaney v. Pollard, 735 F.3d 528, 532 (7th Cir. 2013)(stating that “[i]n evaluating
an attorney’s performance, courts must defer to any strategic decision the lawyer
made that falls within the wide range of reasonable professional assistance, even if
that strategy was ultimately unsuccessful”)(internal quotations omitted)(quoting
Strickland v. Washington, 466 U.S. 668, 689 (1984)). People v. Castellano, 2012
WL 6934931, at *3 (Ill. App. Ct. 2012). The mere fact that Castellano’s counsel
may have referenced alibi witnesses in his opening statement did not mean that, as
the trial progressed, sound trial strategy warranted a change of plans. The Illinois
Appellate Court properly noted that Castellano’s counsel could have reasonably
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believed that cross-examination at trial may have been sufficient alone to create
reasonable doubt. Castellano’s counsel could have reasonably concluded that the
calling of the alibi witnesses was an unnecessary risk. Castellano, 2012 WL
6934931, at *3. Thus, Claims 1 and 2 lack any merit. Based on the above, the
Petition is denied.

IV. Certificate of Appealability
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the court must
issue or deny a certificate of appealability “when it enters a final order adverse to the
applicant.” Id. A district court should only issue a certificate of appealability “if the
applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). The petitioner must also show 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, 484
(2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the instant action,
Castellano has not made a substantial showing of the denial of a constitutional right
as to any claims presented in his Petition. Nor has Castellano shown that reasonable
jurists could debate whether the Petition should have been resolved in a different
manner or that the issues presented in the Petition deserve encouragement to proceed
further. Therefore, should Castellano decide to appeal this court’s ruling, this court
finds that a certificate of appealability would not be warranted, and is denied.
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CONCLUSION
Based on the foregoing analysis, the Petition is denied.

___________________________________
Samuel Der-Yeghiayan
United States District Court Judge
Dated: August 30, 2017

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