Ortega v. Lashbrook et al

Filing 16

MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 8/9/2019: For the foregoing reasons, the Court denies Ortega's petition for a writ of habeas corpus, with the exception of his ineffective assistance of counsel claim based on his trial attorney's failure to investigate alibi witnesses [dkt. no. 1]. By separate order, the Court will appoint counsel to pursue that claim. See 28 U.S.C. § 2254(h). Mailed notice. (pjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL ORTEGA,
Petitioner,
vs.
JACQUELINE LASHBROOK, Warden,
Respondent.

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Case No. 18 C 3631

MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Michael Ortega was convicted by an Illinois jury of first-degree murder. A Cook
County judge sentenced him to forty-six years in prison. Having exhausted direct
appeals and state collateral challenges, Ortega has petitioned for a writ of habeas
corpus under 28 U.S.C. § 2254. He contends that (1) there was insufficient evidence to
sustain his conviction; (2) his trial counsel was ineffective for failing to call an expert
witness regarding eyewitness identification; (3) his trial counsel was also ineffective for
failing to investigate alibi witnesses; and (4) the prosecution violated his constitutional
rights by making certain closing arguments. For the reasons below, the Court overrules
all of Ortega's claims but the third. The Court is not prepared to dismiss that claim and
instead will appoint counsel to investigate its viability.
Background
Michael Ortega was convicted of murdering Kenneth Lawson. The indictment
alleged that the killing took place on the evening of July 12, 2003 outside a house on

South Houston Avenue in Chicago. Lawson was attending a party at the house, which
belonged to Shirly McBride, with two of his friends, Jeremy Howard and Marlin Willis.
Howard and Willis each testified to the events of that evening. According to Howard
and Willis, the three men met up at a gas station nearby and drove Lawson's van to the
party. When they arrived, the three men parked directly in front of the house. For a
while, Howard, Willis, and Lawson socialized with several others in the house's front
yard. Some of the partygoers sat on the front porch while others stood in the yard or sat
in the van.
A neighboring house was also hosting a party. At some point, Lawson, Howard,
and McBride went to the party next door. They stayed for only a short while before
returning to McBride's yard. Howard testified that they did not encounter any problems
at the neighboring house. A few minutes later, Lawson and McBride went back over to
the neighboring party. This time, McBride returned almost immediately but Lawson
stayed for several minutes. He ultimately returned to McBride's house without incident.
Within a few minutes of Lawson's return, a Hispanic or Latino man wearing a
bandana approached from the direction of the neighboring house. The man
immediately confronted Lawson, made a gesture with his hands that Howard and Willis
interpreted to be a gang sign, and said either "Latin King" or "Almighty Latin King."
Compare Trial Tr. pt. 2, dkt. no. 10-19, at 18, with id. at 104. Lawson apparently told
the man to get away from him. According to Howard and Willis, a heated argument
ensued, though there was no physical altercation. After several minutes, the man in the
bandana stormed away, warning the group that he would be back and, according to
Howard, that they should not be there when he returned.

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The group began collecting their things and piling into Lawson's van to leave.
But before they could, the man in the bandana returned, this time with another Hispanic
or Latino man. The second man wore a red shirt and, according to Howard and Willis,
asked the man in the bandana, "Which one?" See id. at 26, 113. Another argument
between Lawson and the two men ensued. According to Willis and Howard, Lawson
eventually attempted to disengage by walking away from the altercation.
When Lawson began to walk away, Howard and Willis testified, the man in the
red shirt drew a revolver and fired one shot toward Lawson. Lawson continued walking
for a moment before collapsing. The shooter fled. Willis and Howard stayed with
Lawson until paramedics arrived, then followed the ambulance to Christ Hospital.
Lawson was later pronounced dead as a result of injuries sustained from the gunshot.
About two weeks later, on July 25, a police detective presented Howard with a
photo array of six individuals. Howard identified Ortega as the shooter. On August 5,
Howard was presented with an in-person lineup, this time including four men. Of the
four, he again identified Ortega as the shooter. On August 7, Willis, who was in custody
on an unrelated traffic violation, was also presented with an array of six photos. From
the six photos on the page, he too identified Ortega as the shooter. Both men testified
that they had spoken to no one about these identifications ahead of time.
Ortega was arrested and charged with Lawson's murder. His trial occurred in
November 2004. The prosecution called Howard and Willis, who testified that they saw
Ortega fire the gunshot that killed Lawson. Ortega's attorney, Michael Johnson, argued
mistaken identity. Although Ortega testified that he could not remember where he was
on the night of Lawson's murder, Johnson argued that Howard and Willis had to be

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mistaken. On cross-examination, Johnson elicited testimony from Willis and Howard
that they had each drank some alcohol the night of the shooting and confronted them
with somewhat inconsistent descriptions about the shooter's clothes and physique that
they had given during the initial investigation.
Ultimately, after a three-day trial, the jury convicted Ortega of murder. Ortega
appealed, arguing that there was insufficient evidence to convict him, that he had
received ineffective assistance of counsel, and that his constitutional rights have been
violated when prosecutors made certain prejudicial remarks about his character for
dishonesty during closing arguments. The Illinois appellate court affirmed the
conviction, rejecting Ortega's first two arguments and holding that the third had been
forfeited when Ortega's attorney failed to object at trial. See Ex. A to State Court
Record, People v. Ortega, 369 Ill. App. 3d 1048, 932 N.E.2d 1038 (table), dkt. no. 10-1,
at 11. The Illinois Supreme Court denied Ortega's petition for leave to appeal, which
was based on the same three grounds. See Ex. H to State Court Record, People v.
Ortega, 225 Ill. 2d 662, 875 N.E.2d 1120 (table) (2007), dkt. no. 10-8.
Ortega then filed a pro se postconviction petition in Illinois state court. He again
alleged that his trial counsel, Johnson, had been ineffective for failing to investigate and
present an alibi defense. Specifically, Ortega claimed that he had told Johnson that his
mother and sister, Louise and Leticia Ortega, would have testified that he was at
Louise's home at the time of the murder, but that Johnson dismissed their testimony as
insufficiently credible without other corroborating evidence. Ortega presented affidavits
from Louise and Leticia supporting his argument and asserting that Johnson had never
interviewed them. These affidavits also mentioned at least one other potential witness:

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Louise's then-boyfriend Benny, who was present at Louise's home until about 12:30
a.m. on the night of Lawson's murder.
The circuit court dismissed Ortega's petition at the first stage of postconviction
proceedings because it found the petition to be patently without merit. See Ex. B to
State Court Record, People v. Ortega, 399 Ill App. 3d 1222, 990 N.E.2d 931 (table)
(2010), dkt. no. 10-2, at 1, 4; see also 725 ILCS 5/122-2.1 (describing first-stage
review). Ortega appealed with the help of appointed counsel, and the Illinois appellate
court reversed, concluding that Ortega's postconviction petition "did not lack an
arguable basis in either law or fact." Id. at 7. It remanded to the circuit court to continue
to the second stage of Illinois postconviction review. Id. at 8.
Appointed counsel filed a supplemental postconviction petition on Ortega's behalf
focused on the ineffective assistance of counsel claims. This supplemental petition
included new affidavits from Louise and Leticia Ortega. Ortega's mother, Louise, stated
this time that she had in fact spoken to Ortega's trial counsel, Johnson, on the first day
of Ortega's trial about testifying about Ortega's alibi. But she said that Johnson advised
her that her testimony would not be believable to a jury without some sort of
corroborating evidence that Ortega had been at her home on the night of Lawson's
murder.
The state again moved to dismiss Ortega's petition. The circuit court granted the
petition, finding that Ortega had failed to make a substantial showing that his
constitutional rights were violated. Ortega appealed. This time the Illinois appellate
court affirmed, finding that Johnson's actions had not amounted to ineffective assistance
of counsel. See People v. Ortega, 2017 IL App (1st) 151326-U, at ¶¶ 1-2, 19-23.

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Specifically, it reasoned that the record "shows trial counsel was aware of the potential
alibi testimony and decided not to call defendant's mother and sister as witnesses in
light of defendant's testimony that he could not recall his whereabouts on the night the
offense occurred." Id. ¶ 21. On this record, it concluded that Ortega had shown neither
that Johnson was objectively deficient nor that any such deficiency had resulted in
prejudice, as required by Strickland v. Washington, 466 U.S. 668 (1984). See Ortega,
2017 IL App (1st) 151326-U, at ¶ 19-26.
On May 22, 2018, Ortega filed this timely petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
Discussion
The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) governs
this Court's review. As the Seventh Circuit recently articulated:
Habeas relief cannot be granted for persons in custody pursuant to a
judgment of a state court 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."
Czech v. Melvin, 904 F.3d 570, 573 (7th Cir. 2018) (quoting 28 U.S.C. § 2254(d)). "A
federal court may issue a writ of habeas corpus under the 'contrary to' clause of AEDPA
if the state court applied a rule different from law set forth in Supreme Court precedent,
or if it decides a materially indistinguishable case differently than the Supreme Court."
Sims v. Hyatte, 914 F.3d 1078, 1087 (7th Cir. 2019). "A state court decision is an
'unreasonable application' if it correctly identifies the governing legal rule, but applies it
unreasonably." Id.
In short, to obtain relief under section 2254(d), "a state prisoner must show that
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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 v. Richter, 562 U.S. 86,
103 (2011). This is a notably deferential standard. See id. at 101.
Ortega contends that his constitutional rights were violated because (1) his
conviction was supported by insufficient evidence; (2) his trial counsel was ineffective
for failing to call an expert witness on the topic of eyewitness identification; (3) his trial
counsel was ineffective for failing to investigate or call his mother and sister as alibi
witnesses; and (4) the prosecution's closing argument violated due process.
A.

Insufficient evidence
First, Ortega claims that there was insufficient evidence to support the jury's

conclusion that he was the man who shot Lawson. To prevail under Jackson v. Virginia,
443 U.S. 307 (1979), Ortega must demonstrate that no "rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt." Id. at 319. The
Illinois appellate court addressed this argument only in passing in its opinion affirming
dismissal of Ortega's state postconviction petition, but this Court must nevertheless
"determine what arguments or theories supported or, as here, could have supported,
the state court's decision." Harrington, 562 U.S. at 102. Once it has surmised the
appellate court's logic, the Court must then "ask whether it is possible fairminded jurists
could disagree that those arguments or theories are inconsistent with the holding in a
prior decision of [the Supreme Court.]" Id.
The Court concludes that the Illinois appellate court did not apply Jackson
unreasonably within that word's narrow meaning under AEDPA. At trial, the prosecution

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presented two eyewitnesses who identified Ortega as the shooter. Willis and Howard
were both present at the party on Houston Avenue on the night of the shooting. Both
men testified that the street was well lit with street lights, porch lights, and the headlights
of cars. They were with Lawson during and after the confrontation with the unnamed
man in a bandana and both witnessed the man's short departure and subsequent return
with the shooter. Likewise, both Willis and Howard testified that they saw the shooter
draw a revolver and shoot Lawson once. Both witnesses identified Ortega as the
shooter based on photo arrays—and, in the case of Howard, an in-person lineup. And,
finally, both Willis and Howard identified Ortega as the shooter at trial.
When assessing whether a reasonable jury could have convicted under Jackson
in the first instance, a court must assume that that jury drew all inferences and resolved
all factual disputes in the prosecution's favor. Branion v. Gramly, 855 F.2d 1256, 1266
(7th Cir. 1988). Where, as here, a federal court is reviewing a state court's application
of Jackson through section 2254(d)'s deferential lens, the petitioner's burden is even
heavier. Because the Illinois appellate court did not unreasonably apply Jackson within
the meaning of section 2254(d) when it implicitly rejected Ortega's insufficient-evidence
argument, Ortega has not carried that heavy burden.
B.

Ineffective assistance of counsel
Next, Ortega alleges that his trial counsel, Johnson, was constitutionally deficient

in two ways. First, he contends that Johnson failed to call an expert witness who could
testify about the unreliability of eye-witness testimony like that offered by Howard and
Willis. Next, Ortega contends that Johnson failed to investigate or call his mother and
sister as alibi witnesses.

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"The Sixth Amendment's right to the effective assistance of counsel
provides . . . relief when counsel's performance was objectively deficient." Swanson v.
United States, 692 F.3d 708, 714 (7th Cir. 2012) (internal quotation marks omitted). "To
succeed on such a claim, [a petitioner] must show both that his attorney's performance
was objectively deficient—in other words, that it fell outside the wide range of competent
representation—and that he was prejudiced by the subpar representation." United
States v. Jones, 635 F.3d 909, 915 (7th Cir. 2011); see also Strickland, 466 U.S. at 68796. There is a presumption that counsel's conduct falls within the range of reasonable
professional assistance. Swanson, 692 F.3d at 714.
In limited circumstances, counsel's conduct can give rise to a per se violation of
the Sixth Amendment right to counsel. This occurs when counsel is not present at all or
at critical stages; fails completely to cross-examine or subject the opposing case to the
adversarial process; has an actual conflict of interest; or fails to file a requested appeal.
See Cole v. United States, 162 F.3d 957, 958 (7th Cir. 1998) (citing United States v.
Cronic, 466 U.S. 648, 658–61 (1984)). Because Ortega only offers a conclusory
allegation that his counsel was per se ineffective, he must demonstrate that Johnson's
performance was objectively deficient and that the deficiency prejudiced him. See
Jones, 635 F.3d at 915. To demonstrate "prejudice," Ortega "must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
Ortega's claim is held to a yet more demanding standard because it does not
present an ineffective assistance of counsel claim in the first instance but rather on

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habeas review of a state court's determination. "The standards created by Strickland
and [section] 2254(d) are both highly deferential, and when the two apply in tandem,
review is doubly so." Harrington, 562 U.S. at 105 (internal quotation marks omitted).
Therefore, the determinative "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." Id.
1.

Failure to call an eye-witness testimony expert

Ortega first argues that Johnson's failure to call an expert witness on the
unreliability of eye-witness testimony amounted to ineffective assistance of counsel.
The Illinois appellate court did not grapple with this argument. A trial attorney's decision
to call—or to forego—an expert witness is, as with any other witness, typically a matter
of strategy. In Harrington, for instance, the Supreme Court concluded that defense
counsel's decision to forego use of an expert in blood evidence "was at least arguabl[y]"
reasonable, even though blood evidence was key to the prosecution's case. See
Harrington, 562 U.S. at 106-07. The Court explained that:
From the perspective of Richter's defense counsel when he was preparing
Richter's defense, there were any number of hypothetical experts—
specialists in psychiatry, psychology, ballistics, fingerprints, tire treads,
physiology, or numerous other disciplines and subdisciplines—whose
insight might possibly have been useful. An attorney can avoid activities
that appear distractive from more important duties. Counsel was entitled
to formulate a strategy that was reasonable at the time and to balance
limited resources in accord with effective trial tactics and strategies.
Id. at 107 (internal quotation marks omitted). Where a petitioner seeks to demonstrate
ineffective assistance of counsel based on the failure to call an expert witness, he must
therefore make a "specific, affirmative showing as to what the missing evidence or
testimony would have been." United States ex rel. McCall v. O'Grady, 908 F.2d 170,
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173 (7th Cir. 1990).
Here, as in Harrington and McCall, the appellate court reasonably concluded that
Johnson's failure to call an expert witness on eye-witness testimony was not objectively
deficient. Ortega has not shown what such an expert witness would have testified or
that Johnson's failure to call one was so clearly constitutionally deficient as to overcome
the presumption of competence and the high bar of section 2254(d).
2.

Failure to investigate alibi witnesses

Ortega's next argument concerns his trial attorney's failure to investigate alibi
witnesses. Ortega's mother and sister, Louise and Leticia Ortega, offered affidavits to
accompany his initial postconviction petition that stated that he was at Louise's home
with them on the night of Lawson's shooting. In these affidavits, Louise and Leticia
asserted that attorney Johnson declined to speak to them about their testimony before
trial. In a subsequent affidavit, Louise reiterated that she had never been interviewed
by Johnson (either before or during the trial) but stated that she had spoken to him on
the first day of Ortega's trial. She testified that on the morning of jury selection she had
confronted Johnson about testifying and that he had told her that he would not call her
as a witness unless she had documentary evidence to corroborate her account. See
Ex. V, dkt. no. 10-22, at 9. Leticia's supplemental affidavit was similar, except that she
says that Johnson never spoke to her. See id. at 11. Rather, she says she learned
from Ortega himself that Johnson had decided not to call her because he believed she
would not be credible due to her relationship with Ortega.
Applying Strickland, the Illinois appellate court concluded that Johnson's decision
not to call Louise and Leticia was strategic and did not rise to the level of objective

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deficiency. In view of Louise's subsequent affidavit and Johnson's arguments at trial,
the court reasoned that Johnson was aware of Louise and Leticia Ortega's potential alibi
testimony but opted instead to rely on arguments about Ortega's candor and credibility.
See Ortega, 2017 IL App (1st) 151326-U, ¶¶ 20-21. Specifically, Johnson argued to the
jury that Ortega's admission that he could not remember where he was on the night of
the murder supported the conclusion that his testimony about his innocence was honest
because he refused to fabricate fake alibi witnesses. Id. ¶ 21. The appellate court
found that this strategic decision was not constitutionally deficient under Strickland's first
element.
Next, the appellate court held that, even if it were objectively deficient, Johnson's
choice not to call Louise and Leticia Ortega did not sufficiently prejudice Ortega to
entitle him to relief. See id. ¶ 22-23. It noted that, on direct appeal, the court had
commented that the state had a "strong case" against Ortega, including two
eyewitnesses who testified they had seen the shooter's face and both of whom had
identified Ortega before and during trial. Id. ¶ 22. The appellate court stated that the
proposed alibi testimony would have been afforded little weight and concluded that
Ortega "has not demonstrated that the investigation and presentation of the alibi
defense would have resulted in a different outcome at trial." Id. ¶ 23.
The Court concludes Ortega's claim may have merit and thus is inclined to
appoint counsel. See 28 U.S.C. 2254(h) (providing for appointment of counsel). The
Illinois appellate court's analysis of Ortega's alibi investigation claim under Strickland
appears to have been lacking in two key ways. First, the court did not meaningfully
address whether Ortega's counsel investigated the proposed alibi witnesses. Ortega

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points to the affidavits from Louise and Leticia in which both contend that Johnson
never interviewed them. Louise was only able to get Johnson to speak to her when she
initiated a conversation with him on the day of the trial. Even then, Johnson allegedly
waved her away and told her he had no reason to talk to her unless she had
documentary evidence of Ortega's whereabouts on the night of Lawson's murder. The
Illinois appellate court dealt with this argument in a single paragraph, citing an Illinois
Supreme Court case for the proposition that counsel is not ineffective "for failing to call
potential alibi witnesses where they were related to defendant and counsel reasonably
could have concluded that their testimony was unreliable." See Id. ¶ 21 (citing People
v. Flores, 128 Ill. 2d 66, 106-07, 538 N.E.2d 481, 497-98 (1989)).
Critically, however, the appellate court did not make a finding that Johnson had
actually investigated the alibi witnesses or that his investigation (if any) was a
reasonable basis on which to dismiss Louise and Leticia's testimony. Rather, the court
reasoned that because Louise and Leticia's testimony was more confident than Ortega's
about where he had been on the night of Lawson's murder—he said he could not recall
his whereabouts—it was a strategic choice for Johnson not to call them as witnesses.
But calling something a strategic decision does not relieve counsel of his duty to
conduct a reasonable investigation or to make a reasonable decision, based on the
circumstances of the case, that such an investigation is not necessary. See Strickland,
466 U.S. at 690-91 ("[S]trategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the
limitations on investigation"); see also Flores, 127 Ill. 2d at 105, 538 N.E.2d at 497
(suggesting that, if "failure to call the witnesses was the result of failure to investigate,

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neglect, or incompetence," it would violate Strickland).
The Seventh Circuit has recently addressed this issue in the AEDPA context. In
Stitts v. Wilson, 713 F.3d 887 (7th Cir. 2013), the court reasoned:
The state court decision as well as the State's brief repeatedly
emphasizes that an attorney's decision not to raise an alibi defense is
generally considered a strategic decision entitled to substantial deference,
a fundamental proposition we do not dispute. However, the main issue in
this case is whether trial counsel's investigation of a potential alibi defense
was sufficient under any reasonable application of Strickland. After all,
"strategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation." If trial counsel's investigation of a
potential alibi defense was unreasonably limited, then trial counsel's
decision not to present an alibi defense is too ill-informed to be considered
reasonable.
Stitts, 713 F.3d at 891-92 (quoting Strickland, 466 U.S. at 690-91) (some internal
quotation marks and citations omitted). The Court of Appeals concluded in Stitts that
the state court had applied Strickland unreasonably when it treated the question of
whether counsel had conducted a reasonable investigation of a potential alibi witness
as a dichotomous one. That is, the state court's choice to dispose of the issue by
simply noting that the petitioner had "failed to show that trial counsel did not investigate
his claimed alibi defense" was unreasonably perfunctory. Id at 892.
And Stitts is not alone in finding the sort of reasoning employed by the Illinois
appellate court to be problematic. In Brady v. Pfister, 711 F.3d 818 (7th Cir. 2013), for
instance, the Seventh Circuit described categorical dismissal of alibi testimony from
family members as "deeply problematic" and stated that "the law does not demand, or
even permit, the disregarding of their testimony just because they are close to the
accused." Id. at 824. Likewise, in Blackmon v. Williams, 823 F.3d 1088 (7th Cir. 2016),
the court noted that "the decision not to call a particular witness is frequently strategic,
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insulated from attack on ineffective-assistance grounds," but held that "an outright
failure to investigate witnesses . . . is more likely to be a sign of deficient performance."
Id. at 1104 (internal quotation marks omitted).
Raygoza v. Hulick, 474 F.3d 958, 963-64 (7th Cir. 2007), offers yet more support
for Ortega's perspective. There, a defense attorney opted not to interview a defendant's
mother who offered alibi testimony about a party she said she had attended with the
defendant. "As an abstract matter," the court wrote, "[the trial attorney] was surely
correct to think that it is hard to win on an alibi defense." Id. at 963. "He may also have
been correct to conclude that a defendant is in a weak spot if the only alibi witness he
can offer is his mother, or perhaps just a mother and a girlfriend." Id. But such general
assessments are not sufficient, the court concluded, because speaking with the
defendant's mother could have changed the character of the defendant's case.
Had [the attorney] gleaned the information from Maria about the evening
party that was easily available for the asking, he would have learned that
this was not a case where only the mother was willing to vouch for a
defendant's alibi. To the contrary, witnesses both related and unrelated to
Raygoza could have been called. A consistent story from all of them
would have forced the trier of fact to confront the possibility that Raygoza
had been mistaken for another young Hispanic male with a blond ponytail.
Id. Here, like in Raygoza, an investigation of Louise and Leticia's alibi testimony may
have revealed evidence that changed the nature of Ortega's defense. For one, such an
investigation conceivably might have revealed that a third witness with no direct family
relation to Ortega was present in Louise's home on the night of Lawson's murder:
Louise's then-boyfriend Benny.
Contrary to the state's position, United States ex rel. Simmons v. Gramley, 914
F.2d 1128 (7th Cir. 1990), does not compel denial. It is true that Gramley involved an

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ineffective assistance of counsel claim based on a failure to investigate a defense. Id.
at 1134-35. And, as here, the state argued that counsel's decision not to investigate an
alibi was a strategic one and thus insulated from review. Id. But Gramley is different
from this case in two ways. First, it involved only "cursory allegations" that counsel
failed to pursue a defense. Id. at 1134. The petitioner did not include the sort of
"sufficiently precise information" required to make out a claim for inadequate
investigation. Id. at 1133. In contrast, this Court knows (as did the Illinois appellate
court) the details of the defense that Ortega says his counsel failed to investigate.
Second, and perhaps more importantly, Gramley involved a proposed defense that was
directly contradictory to the defendant's trial testimony. "Certainly, once Simmons
testified to one cause for the accidental firing of his pistol," the Seventh Circuit wrote,
"he cannot now fault his attorney's decision not to pursue a different alibi defense." Id.
at 1135. Here, of course, Ortega did not testify to facts that contradicted the accounts
of Louise and Leticia. Rather, he testified that he could not remember where he was on
the night of Lawson's murder. That testimony is not in the least bit inconsistent with the
proposed alibi witnesses' accounts, which is more than enough to distinguish this case
from Gramley.
The Court also has reservations about the Illinois appellate court's analysis of
Strickland's prejudice requirement. To demonstrate "prejudice," Ortega "must show that
there is a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. But
instead of applying Strickland's prejudice standard, the Illinois appellate court appears

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to have relied on case law applying the sufficiency of the evidence standard from
Jackson, 443 U.S. at 319, discussed above. Specifically, it cited People v. Smith, 185
Ill. 2d 532, 541, 708 N.E.2d 365, 370 (1999), for the proposition that "[t]he testimony of
a single witness, if it is positive and the witness credible, is sufficient to sustain a
conviction." Ortega, 2017 IL App (1st) 151326-U, ¶ 22. True enough, as far as it goes,
but the court's citation to the sufficiency of the evidence standard in place of Strickland's
prejudice requirement raises doubts about the reasonableness of its application of
controlling law.
The Court is therefore persuaded that this piece of Ortega's ineffective
assistance of counsel claim should not be denied outright. Instead, the Court will
appoint counsel under 28 U.S.C. § 2254(h) to explore the viability of Ortega's claim, as
well as whether an evidentiary hearing should be held. See 28 U.S.C. § 2254(e)(2);
Lee v. Kink, 922 F.3d 772, 773-75 (7th Cir. 2019).
C.

Closing argument
Finally, Ortega also argues in general terms that the prosecution's closing

arguments at trial—which included statements that Ortega was a "liar" and a "thinking
criminal"—violated his due process rights. The Illinois appellate court did not reach this
question on collateral review but rejected the argument as forfeited in its opinion
affirming Ortega's conviction on direct appeal. See Ex. A to State Court Record, People
v. Ortega, 369 Ill. App. 3d 1048, 932 N.E.2d 1038 (table), dkt. no. 10-1, at 11.
Specifically, it held that because defense counsel did not object to these statements at
the time they were made, the argument was forfeited. Id.
The state court's holding that this argument was defaulted as a matter of state

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procedural rules bars this Court from considering the argument unless Ortega "can
demonstrate the cause for the default and actual prejudice as a result of the alleged
violation of federal law" or that he is actually innocent. Coleman v. Thompson, 501 U.S.
722, 750 (1991). Beyond his ineffective-assistance arguments, discussed above,
Ortega has made no attempt to show cause or prejudice that would permit this Court to
look past the procedural default. Even if he had, it is unclear from the face of Ortega's
petition and the record as a whole what precisely his constitutional complaint about the
prosecution's closing argument is. He asserts that the prosecutors' statements
prejudiced him, but he cites no authority for the proposition that impugning a testifying
defendant's character for honesty without more is unconstitutional. To the contrary, the
Seventh Circuit has held that "[a] comment on the defendant's credibility that is
supported by the evidence is a hard blow, but a fair one. Where the character and
credibility of the defendant are at issue and the evidence allows the inference that the
defendant has been less than truthful, the prosecutor does not err in closing argument
by referring to the defendant as a liar." United States v. Turner, 651 F.3d 743, 752 (7th
Cir. 2011).
Conclusion
For the foregoing reasons, the Court denies Ortega's petition for a writ of habeas
corpus, with the exception of his ineffective assistance of counsel claim based on his
trial attorney's failure to investigate alibi witnesses [dkt. no. 1]. By separate order, the
Court will appoint counsel to pursue that claim. See 28 U.S.C. § 2254(h).
________________________________
MATTHEW F. KENNELLY
United States District Judge

Date: August 9, 2019

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