Ortega v. Lashbrook et al
Filing
51
MEMORANDUM Opinion and Order signed by the Honorable John F. Kness on 9/27/2022. Mailed notice(ef, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MICHAEL ORTEGA (R-40675),
Petitioner,
v.
ANTHONY WILLS,
Respondent.
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)
)
)
)
)
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)
)
No. 18-cv-03631
Judge John F. Kness
MEMORANDUM OPINION AND ORDER
Petitioner Michael Ortega, an Illinois prisoner at Menard Correctional Center,
filed this habeas corpus action under 28 U.S.C. § 2254 challenging his 2004 Cook
County murder conviction. (Dkt. 1.) Before the Court is Petitioner’s motion for an
evidentiary hearing, by which he seeks to develop evidence concerning his claim of
ineffective assistance of trial counsel based on counsel’s purported failure to
investigate alibi evidence from Petitioner’s mother and sister. (Dkt. 28; Dkt. 34; Dkt.
40.) For the reasons that follow, the Court holds that the Illinois court reasonably
concluded that Petitioner’s trial counsel did not render ineffective assistance.
Petitioner is therefore not entitled to habeas relief. And because federal courts are,
except in limited circumstances not present here, bound on habeas review to the
factual record developed in the state courts, the Court similarly denies Petitioner’s
motion for an evidentiary hearing.
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I.
BACKGROUND
A.
Petitioner’s Trial and Direct Appeal
This case relates to Petitioner’s first degree murder conviction for the shooting
death of Kenneth Lawson in July 2003. (Dkt. 10-1 at 1–4) (People v. Ortega, 932
N.E.2d 1221 (Table) (Ill. App. Ct. Feb. 7, 2007)).1 Petitioner was found guilty following
a jury trial, and the state trial court sentenced Petitioner to 46 years of imprisonment.
As established at trial, between 10:30 and 11:00 p.m. on the evening of July
12, 2003, Lawson and his friend Jeremy Howard drove a van to a party on Chicago’s
south side. (Dkt. 10-1 at 1–2.) Once there, Lawson and Howard met another friend,
Marlin Willis. (Id.) After driving to a liquor store and returning with a bottle of rum,
Lawson parked his van. (Id. at 2.) Guests at the party mingled on the house’s porch,
in the area between the porch and the van, and in the van itself, the sliding door of
which was open. (Dkt. 10-19 at 15–16, 104-05). A few hours later, a Hispanic man
wearing a bandana walked by the party, threw up a gang sign, and said “Latin Kings”
to Lawson. (Dkt. 10-1 at 2.) Lawson and the man argued. Although the argument did
not involve physical violence, Howard stepped in to break it up. The man with the
bandana then said he would return soon and told Lawson, Howard, and Willis they
should not be there when he did. (Id.)
This description of the trial evidence is taken from the direct-appeal opinion of the
Appellate Court of Illinois (Dkt. 10-1), and from the trial transcript itself where necessary to
fill in gaps. (Dkt. 10-18, 10-19, and 10-20.) Because facts recited in a state appellate court
opinion are “presumptively correct on habeas review,” this Court is entitled to rely upon
them. Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1 (7th Cir. 2020) (citing 28 U.S.C.
§ 2254(e)(1)).
1
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Five minutes later, the man with the bandana returned, accompanied by
another man, later identified by Howard and Willis as Petitioner. (Dkt. 10-1 at 2.) At
that time, Lawson, Howard, and Willis were preparing to leave in the van. Lawson
was in the driver’s seat and Howard and Willis were standing by the open sliding
door. (Id.) Howard and Willis testified that Petitioner and Lawson argued before
Lawson exited the van and walked toward Petitioner. (Id.) Howard then walked up
to Lawson, took Lawson by the arm, and dragged him back into the van. (Id.) Howard
walked around the van to the sliding door, and Lawson then exited the van again and
stated he was walking home. (Id. at 2–3.) Petitioner stood in front of the van when
Lawson exited it a second time, and the two of them argued as Lawson was walking
away. Petitioner then pulled a gun from his gym shorts and fired once at Lawson;
after shooting at Lawson, Petitioner ran from the scene. (Id.) Lawson collapsed and
was later pronounced dead at a hospital. (Id. at 3.)
Several weeks later, Howard was shown a photo array and identified Petitioner
as the shooter. (Id.) On August 5, 2003, Howard viewed a physical lineup of four men
that included Petitioner. Howard again identified Petitioner. (Id.) Another officer
showed Willis a different photo array of six pictures, and Willis too identified
Petitioner as the shooter. (Id.)
Both officers testified at trial. The officer who showed a photo array to Howard
stated that he used a three-year old picture of Petitioner when creating the array,
and that information with the photograph specified that Petitioner weighed 145
pounds at the time the photograph was taken. (Id.; see also Dkt. 10-19 at 202.) In the
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photo array prepared for Willis by a different officer, the photograph of Petitioner
stated that he weighed 200 pounds. (Dkt. 10-19 at 238, 242.)
Petitioner’s defense at trial was that he was not at the scene of the shooting
and that Howard and Willis mistakenly identified him. People v. Ortega, 2017 IL App
(1st) 151326-U, ¶ 4 (Ill. App. Ct. 2017). Petitioner testified that, although he could
not affirmatively remember where he was, he remembered where he was not: at or
near the shooting. (Dkt. 10-20 at 19–20.) During closing arguments, Petitioner’s trial
counsel stated that Petitioner’s testimony was sincere, that he “had ample
opportunity to create an alibi if he wanted to,” but that most people cannot remember
where they were on a particular evening “unless it is a special day . . . [;] a birthday
or a holiday.” (Id. at 105); Ortega, 2017 IL App (1st) 151326-U, ¶ 4. A jury found
Petitioner guilty, and he was sentenced to 46 years’ imprisonment. (Id. ¶ 5.)
On direct appeal, Petitioner argued that the evidence against him was
insufficient; his trial counsel was ineffective for failing to call an expert witness about
the fallibility of identification testimony; and that the prosecutor engaged in
prosecutorial misconduct by calling Petitioner a “liar” and a “thinking criminal”
during closing arguments. (Dkt. 10-1 at 4–12.) Rejecting all three claims, the
Appellate Court of Illinois (the “Appellate Court”) affirmed. (Id.) Petitioner filed a
petition for leave to appeal in the Supreme Court of Illinois and asserted the same
claims, but that court denied the petition. (Dkt. 10-7; Dkt. 10-8.)
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B.
Petitioner’s Postconviction Proceedings
Petitioner filed a state postconviction action and asserted, among other things,
that his trial counsel was ineffective for failing to investigate whether to call
Petitioner’s mother (Louise Ortega) and sister (Leticia Ortega) as alibi witnesses.
(Dkt. 10-21 at 35–140.) Shortly after filing the petition, Petitioner submitted signed
affidavits from his mother and sister in which both indirectly stated that Petitioner
was at his mother’s house on the night of the shooting. (Dkt. 10-22 at 7–11.) The state
trial court dismissed that petition in its first stage of review.2 (Dkt. 10-21 at 141.) But
the Appellate Court reversed and remanded for further proceedings. See Ortega, 2017
IL App (1st) 151326-U, ¶¶ 8–9. On remand, the trial court appointed counsel for
Petitioner; counsel then filed a supplemental petition with new affidavits from Louise
and Leticia. (Dkt. 10-23 at 64–67.)
Louise’s supplemental affidavit stated that Petitioner was living with her at
the time of the shooting. (Id. at 64.) Louise remembered that Petitioner was home on
the night of the shooting because of an incident involving her daughter Leticia
following Leticia’s baby shower. When Louise and her then-boyfriend Benny Avila
Illinois’ post-conviction process provides for three stages of review. 725 ILCS 5/122-1, et
seq. At the first stage, the state trial court “review[s] the postconviction petition, without
input from the State, and determine[s] whether it is ‘frivolous or is patently without merit.’ ”
People v. House, 2021 IL 125124, ¶ 16 (quoting 725 ILCS § 5/122-2.1(a)(2)). At the second
stage, “counsel may be appointed to represent the petitioner . . . the State may file responsive
pleadings,” and the trial court determines if the petition makes “a substantial showing of a
constitutional violation.” Id. at ¶ 17 (citing 725 ILCS §§ 5/122-4, 122-5). If a petition makes
it beyond stage two, the trial court conducts an evidentiary hearing to decide if the petitioner
has established a constitutional violation at stage three. Id. at ¶ 17 (citing 725 ILCS § 5/1226).
2
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argued, and Benny tried to hit Louise, Leticia jumped in to protect her mother. Leticia
then complained to Petitioner about failing to intervene. (Id.)
Louise also explained that she conveyed this information to Petitioner’s
counsel during a conversation in late 2003 or early 2004, while they were both at the
criminal courthouse. (Id.) In response, according to Louise, counsel neither asked
Louise any questions nor requested to speak with her daughter. Nor did counsel use
an investigator or consult with Louise about using one. (Id. at 64–65.) Instead, Louise
recalls, counsel “said the only thing that would help was if I had some receipt that
would prove where my son . . . was.” (Id. at 64.)
Leticia’s supplemental affidavit similarly recalls her baby shower on July 12,
2003. Leticia remembered that she and her young son spent the night at her mother’s
house, and that Avila was there until he and Louise argued and then he left. (Id. at
66–67.) According to Leticia, she and her mother stayed up talking until 2:00 a.m.,
when Leticia asked Petitioner to move from the couch to a loveseat so Leticia could
sleep. Petitioner moved to the loveseat and was still there when she awoke later that
morning. (Id.) Both Louise and Leticia stated they would have been willing to testify
at Petitioner’s trial. (Id. at 64–65, 67.)
The state trial court denied Petitioner’s supplemental postconviction petition
at the second stage of review—before the stage that would have included an
evidentiary hearing (Dkt. 10-23 at 76–83)—and the Appellate Court affirmed. Ortega,
2017 IL App (1st) 151326-U. Both courts determined that Petitioner could not
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establish his ineffective assistance of counsel claim. Id. at ¶¶ 20-23; (Dkt. 10-23 at
80–83); see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
Of particular importance here, the Appellate Court3 determined that trial
counsel was aware of the availability of Louise and Leticia’s alibi testimony but chose
not to call them. Ortega, 2017 IL App (1st) 151326-U, ¶ 21. Instead, counsel chose to
have Petitioner testify that he could not remember his location on the night of the
shooting and to then emphasize Petitioner’s candor during closing argument by
telling jurors that Petitioner could have created an alibi but chose not to. Id. That
court held that the decision of trial counsel decision was strategic and noted that
“Illinois courts have long recognized that it is a reasonable trial strategy for counsel
to forego presenting the testimony of family members.” Id. (citing People v. Flores,
538 N.E.2d 481, 497–98 (Ill. 1989)).
As to Strickland’s prejudice prong, the Appellate Court determined that,
because the “proposed testimony of [Petitioner’s] mother and sister would have been
afforded little weight,” Petitioner “ha[d] not demonstrated how the proposed
testimony would outweigh the testimony of the two State’s witnesses, who had an
unobstructed view of defendant and witnessed the offense at close proximity in a welllit area.” Id. at ¶ 23. Petitioner presented his ineffective assistance claim to the
Supreme Court of Illinois, but the court denied leave to appeal. (Dkt. 10-15; Dkt. 1016.)
This Court’s discussion focuses on the state appellate decision since federal courts “look
to . . . the ‘last reasoned state–court decision” addressing the claim on the merits. Dassey v.
Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (quoting Johnson v. Williams, 568 U.S. 289, 297
n.1 (2013)).
3
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C.
Petitioner’s Section 2254 Petition
Following the conclusion of proceedings in the Illinois courts, Petitioner, acting
pro se, filed the present petition under 28 U.S.C. § 2254. (Dkt. 1.) Petitioner asserted
four claims: (1) the trial evidence was insufficient to support his conviction; (2) trial
counsel was ineffective for failing to call an expert witness to testify about the
unreliability of eye-witness testimony; (3) trial counsel was ineffective for failing to
investigate and call Petitioner’s mother and sister as alibi witnesses; and (4) the
prosecutor made inappropriate, inflammatory remarks during closing argument. (Id.)
This case initially was assigned to another judge in this District, who denied Claims
One, Two, and Four in a written opinion. (Dkt. 16.)
As to Claim Three (the only remaining claim), the Court’s earlier opinion
questioned the reasonableness of the Appellate Court’s decision, which rested, in
part, on the premise that it is not unreasonable for an attorney to forego using
testimony from family members “because it would be afforded little weight.” (Dkt. 16
at 13). As the Court explained (by the previously assigned judge), the Appellate Court
never found that Petitioner’s trial counsel “actually investigated the alibi witnesses,”
and the Court noted that the Seventh Circuit has criticized state courts for relying on
a presumption that alibi testimony from close family members is so inherently weak
that defense counsel need not investigate it. (Dkt. 16 at 14–15.)
But the Court’s earlier opinion left open whether the Appellate Court’s decision
was an unreasonable application of Strickland or an unreasonable determination of
facts. See 28 U.S.C. § 2254(d). Instead, the Court held that the “ineffective assistance
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of counsel claim should not be denied outright” and thus appointed counsel for
Petitioner “to explore the validity of [the] claim, as well as whether an evidentiary
hearing should be held.” (Dkt. 16 at 17.) Appointed counsel then filed the pending
motion for seeking an evidentiary hearing. (Dkt. 17; Dkt. 28.)
II.
DISCUSSION
A.
Before Determining if an Evidentiary Hearing Should Be Held,
This Court Must Decide if Petitioner Satisfies 28 U.S.C. § 2254(d).
Petitioner’s motion for an evidentiary hearing begins by arguing that he meets
both the statutory and judicially created requirements for such a hearing. (Dkt. 28 at
10–12.) Petitioner then contends that 28 U.S.C. § 2254(d) does not prevent federal
habeas relief in this case. (Id. at 12–21.) But Petitioner’s approach—considering
whether
to
allow
an
evidentiary
hearing
and
then
addressing
whether
Section 2254(d) prevents federal habeas relief—pays insufficient heed to the
requirements of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Under AEDPA, the Court must first address whether the state court’s
denial of Petitioner’s ineffective assistance claim was unreasonable under
Section 2254(d). Only if the Court makes such a finding can it then decide whether to
hold an evidentiary hearing.
Under Section 2254(d), when a state court decides the merits of the
constitutional claim being asserted in a Section 2254 petition, relief is unavailable
unless the state court decision: (1) was contrary to, or involved an unreasonable
application of, clearly established federal law; or (2) was based on an unreasonable
determination of facts in the light of the state court record. 28 U.S.C. §§ 2254(d)(1),
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(2). A federal court cannot consider new evidence not presented to the state court
when conducting its Section 2254(d) analysis: as the Supreme Court recently
reiterated, AEDPA “restricts the ability of a federal habeas court to develop and
consider new evidence.” Shoop v. Twyford, 142 S. Ct. 2037, 2043 (2022) (quoting
Cullen v. Pinholster, 563 U.S. 170, 181 (2011)). Review “of factual determinations
under Section 2254(d)(2) is expressly limited to ‘the evidence presented in the State
court proceeding,’ ” and “review of legal claims under §2254(d)(1) is also limited to the
record that was before the state court.” Id. at 2043–44.
Because the Appellate Court addressed the merits of Petitioner’s ineffective
assistance of counsel claim, federal habeas relief is unavailable if the state court’s
decision was reasonable. When determining reasonableness, this Court “is limited to
the record that was before the state court that adjudicated the claim on the merits.”
Pinholster, 563 U.S. at 181–82; see also Westray v. Brookhart, 36 F.4th 737, 754 (7th
Cir. 2022) (“no federal evidentiary hearing is permitted when the state court has
already addressed the issue,” and that court’s adjudication was reasonable under
Section 2254(d)).
It is true that state courts may not “insulate their decisions from federal review
by refusing to entertain vital evidence.” Lee v. Kink, 922 F.3d 772, 775 (7th Cir. 2019).
A state court’s “refusal to consider evidence can render its decision unreasonable” for
purposes of Section 2254(d). Id. But “an evidentiary hearing may be needed” only if
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Section 2254(d) does not otherwise bar relief. Stechauner v. Smith, 852 F.3d 708, 722
(7th Cir. 2017).4
That approach to be taken by a federal court—namely, reviewing the state
court’s adjudication of a claim under Section 2254(d) before determining whether to
accept new evidence—comports with AEDPA’s goal of promoting comity, finality, and
federalism. Pinholster, 563 U.S. at 185; see Shinn v. Ramirez, 142 S. Ct. 1718, 1730–
31 (2022).5
Because the state courts decided the merits of the ineffective assistance claim,
the Court must first determine whether Section 2254(d) prevents federal habeas
relief before deciding whether to conduct an evidentiary hearing to receive additional
evidence not presented to the state court.
The post-AEDPA structure of Section 2254 itself sets out the path a state prisoner must
follow to obtaining federal habeas relief. First, he must fully and fairly present his
constitutional claim to the state courts or show why state court remedies are inadequate. See
28 U.S.C. §§ 2254(b), (c). Sections 2254(d) and (e)(1) then provide the review standards
binding federal courts when addressing a state court’s adjudication of those claims. Only if
Section 2254(d) does not bar relief can a state prisoner seek to introduce new evidence under
Section 2254(e)(2), which has its own separate requirements.
4
Petitioner’s contention that “a petition for a writ of habeas corpus shall be granted if the
state court’s adjudication on the merits” was unreasonable under Section 2254(d), see Dkt.
28 at 8, is inaccurate. Section 2254(d) is not a means of obtaining federal habeas relief but
rather a hurdle. Whether the petitioner is entitled to relief under Section 2254(a) when “he
is in custody in violation of the Constitution or laws or treaties of the United States . . . is a
separate question” from whether the state court’s decision was unreasonable under
Section 2254(d). Mosley, 689 F.3d at 853. Only when a federal court addresses the merits of
the claim under Section 2254(a), as opposed to the reasonableness of the state court’s
adjudication of the claim under Section 2254(d), may it consider new evidence under
Section 2254(e)(2), which has its own set of requirements, mainly that the prisoner attempted
to develop the evidence in state court. Id.; see also Lee, 922 F.3d at 773 (“a federal court may
hold an evidentiary hearing if, through no fault of petitioner’s, the state-court record lacks
essential facts”).
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B.
Petitioner Cannot Satisfy the Requirements of Section 2254(d).
1.
Standard of Review
Relief is not available to habeas petitioners “with respect to any claim that was
adjudicated on the merits in a State court proceeding unless” the claim resulted in “a
decision that was contrary to” or involved “an unreasonable application of” clearly
established federal law or 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). This Court applies this standard to the “last
reasoned state-court decision” addressing the claim, Dassey, 877 F.3d at 302 (quoting
Johnson, 568 U.S. at 297 n.1), which, in this case, is the Appellate Court’s decision
affirming the denial of Petitioner’s second postconviction appeal. Ortega, 2017 IL App
(1st) 151326-U.
Neither party argues that the Appellate Court’s decision is contrary to clearly
established federal law. A state-court decision is “contrary to our clearly established
precedent if the state court applies a rule that contradicts the governing law set forth
in our cases” or “confronts a set of facts that are materially indistinguishable from a
decision of this Court and nevertheless arrives at a result different from our
precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000). The appellate court
correctly stated the familiar two-prong standard for an ineffective assistance of
counsel claim. Ortega, 2017 IL App (1st) 151326-U, ¶ 19 (quoting Strickland, 466 U.S.
at 687-88, 694). Moreover, this Court is not aware of any decision of the Supreme
Court based on materially indistinguishable facts that nonetheless arrived at a
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different result. Petitioner, therefore, cannot satisfy the “contrary to” standard of
Section 2254(d)(1).
To establish that the Appellate Court’s decision “involved an unreasonable
application of” Strickland under Section 2254(d)(1), Petitioner must demonstrate
that the decision is not only incorrect but “objectively unreasonable.” Felton v.
Bartow, 926 F.3d 451, 464 (7th Cir. 2019) (citing Wiggins, 539 U.S. at 520; Williams,
529 U.S. at 411). Unreasonable in this context means “lying well outside the
boundaries of permissible differences of opinion.” McGhee v. Dittmann, 794 F.3d 761,
769 (7th Cir. 2015) (citation omitted). That high bar requires a state prisoner to show
that the state court’s ruling on the claim being presented in federal court is “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). With respect to ineffective assistance of counsel claims, so long
as the Court is “satisfied that the [state appellate court] took the constitutional
standard seriously and produce[d] an answer within the range of defensible
positions,” it should deny the writ. Felton, 926 F.3d at 464; see Morgan v. Hardy, 662
F.3d 790, 800–01 (7th Cir. 2011) (To demonstrate an unreasonable determination of
facts under Section 2254(d)(2), Petitioner must show that the state appellate court
decision ignored “the clear and convincing weight of the evidence.”).
Considering Section 2254(d)’s deferential standard, Petitioner could not
establish that his trial counsel provided deficient performance or that the absence of
the alibi testimony prejudiced his defense. (Dkt. 28 at 8–21). Both Strickland prongs
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must be established to succeed, and “failing to prove either element defeats [the]
claim.” Winfield v. Dorethy, 956 F.3d 442, 452 (7th Cir. 2020); Strickland, 466 U.S. at
694. Based on the present record, the Appellate Court’s determination that the
performance of Petitioner’s counsel did not meet the Strickland test was reasonable.
2.
Deficient Performance
To establish deficient performance, a petitioner “challenging a conviction must
show
that
‘counsel’s
representation
fell
below
an
objective
standard
of
reasonableness.’ ” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 688).
That requires a petitioner to identify errors serious enough to find that counsel failed
to function as counsel as guaranteed “by the Sixth Amendment.” Dunn v. Jess, 981
F.3d 582, 591 (7th Cir. 2020) (cleaned up). Separately, the Court must apply the
deferential presumption that strategic judgments made by counsel are reasonable to
“avoid the inevitable temptation to evaluate a lawyer’s performance through the
distorting lens of hindsight.” Dunn, 981 F.3d at 591 (quoting Mosley v. Atchison, 689
F.3d 838, 848 (7th Cir. 2012)).
Strategic choices made after a less-than-complete investigation are reasonable
“to the extent that reasonable professional judgments support the limitations on
investigation.” Strickland, 466 U.S. at 690–91. Decisions such as who to call as
witnesses, what objections to make, and which arguments to advance are usually
considered strategic choices for counsel. McCoy v. Louisiana, 138 S. Ct. 1500, 1509
(2018) (citing Gonzalez v. United States, 553 U.S. 242, 249 (2008)); see Carter v.
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Duncan, 819 F.3d 931, 942 (7th Cir. 2016) (a “lawyer’s decision to call or not to call a
witness is a strategic decision generally not subject to review”) (quotation omitted).
Petitioner’s challenge to his counsel’s decision not to call Louise or Leticia as
witnesses relies on the premise that counsel failed to investigate their alibi. Citing
portions of Louise and Leticia’s affidavits, Petitioner contends that the “evidence
presented to both the state trial and appellate court establishes that [counsel]
performed no investigation into the alibi defense” but instead “summarily dismissed
both alibi witnesses because they were Ortega’s mother and sister and leapt to the
conclusion that no one would believe them.” (Dkt. 28 at 14.)
This Court’s earlier decision dismissing most of Petitioner’s claims explained
that Louise “had never been interviewed by [counsel] (either before or during the
trial)” and that she “was only able to get [counsel] to speak to her when she initiated
a conversation with him on the day of the trial.” (Dkt. 16 at 13.) Even then, counsel
“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.”
(Id.) (citing Dkt. 10-22 at 9).
Upon further review of the record, and with the benefit of the parties’
submissions, the Court now finds that the Appellate Court reasonably determined
that counsel’s decision not to call Louise or Leticia was strategic and, therefore, did
not constitute ineffective assistance of counsel. Louise spoke with counsel about
Leticia’s and her proffered testimony on the morning of trial, to be sure, but that was
not the first time counsel was presented with the proposed evidence. In her
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supplemental affidavit, obtained after the Appellate Court remanded Petitioner’s
postconviction petition for further proceedings, Louise stated that she had two
conversations with counsel. (Dkt. 10-23 at 64–65.) Louise first spoke with counsel in
late 2003 or early 2004 (months before the trial in November 2004), and again on the
morning of jury selection. (Id.)
In its written opinion, the Appellate Court addressed counsel’s conversation
with Louise. Ortega, 2017 IL App (1st) 151326-U, ¶ 10. After describing the
conversation between Louise and counsel and noting that “[t]he decision whether to
call particular witnesses is a matter of trial strategy and thus will not ordinarily
support an ineffective-assistance-of-counsel claim,” the Appellate Court determined
that “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.” Ortega, 2017 IL
App 1st) 151326-U, ¶¶ 20–21. That decision was, in the Appellate Court’s view,
strategic for a variety of reasons. Among other things, calling Louise or Letitia would
have conflicted with counsel’s chosen trial strategy of attempting to maintain
credibility with the jury, and the decision not to call family members as alibi
witnesses is long-established as a reasonable trial strategy under Illinois law. Id. This
explanation by the Appellate Court shows that the court considered the trial record
and the proffered evidence, as well as relevant Supreme Court of Illinois precedent,
before concluding that “trial counsel’s performance in this respect was not
constitutionally deficient.” Id. (citing Flores, 128 Ill. 2d at 106–07).
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Counsel has a duty to “make reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at
690–91. Petitioner’s counsel may not have “investigated” the alibi evidence, in the
sense that he neither contacted Louise nor employed an investigator to do so. But the
relevant substance was provided to counsel months before trial when Louise
summarized her daughter’s and her alibi evidence “in great detail.” (Dkt. 10-13 at 9).
Counsel explained to Louise that, without corroborating evidence, the alibi testimony
of close family members would be of limited value. (Dkt. 10-13 at 7). Counsel did
inquire into Louise’s offer to testify: he asked her if there was anyone besides Louise
and Leticia—two family members whose credibility could have hurt Petitioner’s
case—who could attest to the alibi.
Because only family members were present during the events described by
Louise and Leticia, it is unclear what further investigation by counsel could have
revealed. Equally important, Petitioner himself did not claim the alibi as his own,
thus limiting the usefulness of Louise and Leticia’s testimony and suggesting that
additional investigation would be pointless.
More broadly, the requirement that counsel conduct a reasonable pre-decision
investigation seeks to ensure only that counsel “make[s] an informed decision” before
trial. Blackmon v. Williams, 823 F.3d 1088, 1103 (7th Cir. 2016) (citing United States
v. Best, 426 F.3d 937, 945 (7th Cir. 2005)). Petitioner’s construction of the rule,
however, would turn the requirement into a tool for grading counsel’s performance
years after trial and in the abstract. Because such a post-hoc inquisition is neither
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required nor supported under governing law, and because further investigation was
not necessary for Petitioner’s counsel to identify the strategic pros and cons of
Louise’s proffered testimony, counsel’s decision not to call Louise and Leticia was a
permissible strategic choice.
More to the point, the Appellate Court’s decision that counsel was not
ineffective, a decision to which AEDPA says this Court owes deference, was not
unreasonable in the light of the record showing that Louise explained her daughter’s
and her potential testimony to Petitioner’s counsel months before trial. That decision
neither
unreasonably
applied
Strickland
nor
involved
an
unreasonable
determination of fact. See 28 U.S.C. § 2254(d). Put another way, the Court finds that
there is no possibility “fairminded jurists” could agree that the Appellate Court’s
decision “conflicts with [the] [Supreme] Court[] precedents” on ineffective assistance
of counsel. Harrington, 562 U.S. at 102. On the contrary, the Appellate Court, which
routinely considers direct appeals of murder convictions and as a result has
significant and wide-ranging exposure to the performance of trial counsel in murder
cases, took the “constitutional standard seriously and produce[d] an answer within
the range of defensible positions.” Felton, 926 F.3d at 464. Petitioner thus cannot
meet the “doubly deferential” standard of Section 2254(d) on the question of his trial
counsel’s performance. Harrington, 562 U.S. at 105 (“The standards created by
Strickland and § 2254(d) are both “highly deferential,” and when the two apply in
tandem, review is “doubly” so.”) (internal citations omitted).
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Petitioner’s inability to establish deficient performance, by itself, means that
his petition for habeas corpus relief based on the ineffective assistance of counsel
must be denied. See Winfield, 956 F.3d at 452. As explained below, however,
Petitioner also fails to show that the Appellate Court acted unreasonably in
concluding that Petitioner could not meet the prejudice requirement under
Strickland.
3.
Prejudice
When addressing Strickland’s prejudice requirement, a court must consider
the evidence that would have been presented at trial “but for counsel’s unprofessional
error” along with the “the totality of the evidence before the judge or jury.” Strickland,
466 U.S. at 694–95. The issue is not whether the defendant is innocent or would have
been acquitted, “but instead whether he would have had a ‘reasonable chance’ of
acquittal.” Blackmon, 823 F.3d at 1105 (quoting Stanley v. Bartley, 465 F.3d 810, 814
(7th Cir. 2006)). A reasonable probability is one “sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694.
In this case, the Appellate Court, in finding a lack of prejudice, recognized that
it had previously found on direct appeal that the State presented “a strong case”
against Petitioner given the multiple eyewitnesses. (Dkt. 10-3 at 8). This conclusion,
in particular with regard to the identification testimony from eyewitnesses Howard
and Willis, is supported by the record. See generally (Dkt. 10-19 at 26–152). Both
witnesses testified that they saw the shooter while they were near him on a well-lit
street. Both identified Petitioner as the shooter at trial and in photo arrays shown to
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them by police officers within weeks after the shooting. And at trial, the jury was
shown pictures of the street where the shooting occurred. (Id.) Based on this record,
the state Appellate Court’s characterization of the prosecution’s case as “strong,” see
Ortega, 2017 IL App (1st) 151326-U, ¶ 22, was reasonable. See, e.g., Woods v.
Schwartz, 589 F.3d 368, 378 (7th Cir. 2009) (holding no prejudice under Strickland
because “at trial, two eyewitnesses is very strong evidence of guilt”).
In contrast to the eyewitness testimony offered at trial, the Appellate Court
emphasized the light weight afforded under Illinois law to the proffered testimony of
Petitioner’s family members. Ortega, 2017 IL App (1st) 151326-U, ¶¶ 22–23.
Although alibi evidence from a close relative to a defendant cannot be wholly
discounted, see Brady, 711 F.3d at 824, a court can consider that relationship in
assessing the value of purported alibi testimony. See Raygoza, 474 F.3d at 963 (trial
counsel “may . . . 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”); see also Stitts, 713 F.3d at 894 (“[f]or instance, if Stitts’s father claimed
that Stitts was having a one-on-one dinner with him at the time of the shooting, and
trial counsel concluded that the father would make a poor witness, then it could be
reasonable to end the alibi investigation at that point”).
Although the proffered alibi testimony from Petitioner’s mother and sister
could not be completely discredited, the Appellate Court did not act unreasonably
when it determined that the purported alibi testimony from Petitioner’s mother and
sister, when weighed against the strong eyewitness testimony offered at trial, would
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not have led to a reasonable probability of a different outcome.6 Strickland’s prejudice
standard, of course, must include a consideration of the strength or weakness of the
prosecution’s case at trial. See Mosley, 689 F.3d at 850 (“a verdict . . . only weakly
supported by the record is more likely to have been affected by errors than one with
overwhelming record support”) (quoting Strickland, 466 U.S. at 696); see also
Blackmon, 823 F.3d at 1106 (“We begin . . . with the weakness of the State’s case.”);
Smith v. Brown, 2012 WL 3704976, at *8 (S.D. Ind. Aug. 27, 2012) (“The weight of
the evidence is a key consideration in conducting the prejudice inquiry under
Strickland.”). In view of the record developed in the state proceedings, the Court
cannot say that the Appellate Court’s determination on the prejudice question was
contrary to, or amounted to an unreasonable application of, clearly established
federal law.
Petitioner can establish neither that the state appellate court’s decision was
contrary to or involved an unreasonable application of either Strickland’s deficient
performance or prejudice standards. Nor, as the record supports the state court’s
findings, can he demonstrate that the decision involved an unreasonable
Petitioner’s motion for an evidentiary hearing also seeks testimony from Avila. (Dkt. 28
at 16.) But Petitioner never argued to the state courts that his trial attorney should have
called or investigated Avila as an alibi witness. (See generally Dkt. 10.) Nor does the state
record reflect that Petitioner attempted to develop evidence with respect to Avila. (Id.)
Petitioner thus cannot satisfy the requirements of Sections 2254(b) and (e)(2) regarding
Avila. But even if the Court could allow Petitioner to develop new about potential alibi
evidence from Avila, both Louise and Leticia’s initial affidavits reflect that Avila left Louise’s
house at around 12:30 a.m., about an hour before the shooting. (Dkt. 10-22 at 8, 11.)
Witnesses can and do say more than what is in their affidavits, Lee, 922 F.3d at 775, but the
Supreme Court has made clear that “‘[f]ederal courts sitting in habeas are not an alternative
forum for trying facts and issues which a prisoner made insufficient effort to pursue in state
proceedings.’ ” Pinholster, 563 U.S. at 186. Petitioner’s speculations about Avila’s testimony
neither warrant an evidentiary hearing nor cause the Court to alter its analysis.
6
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determination of facts. Because Petitioner cannot satisfy the requirements of Section
2254(d), an evidentiary hearing is neither needed nor appropriate under
Section 2254(e)(2). Petitioner’s motion for an evidentiary hearing is therefore denied.
C.
Appellate Rights and Certificate of Appealability
If Petitioner seeks to appeal this decision, he must file a notice of appeal in this
Court within 30 days of the date final judgment is entered on the Court’s docket. In
the Court’s view, Petitioner cannot make a substantial showing of the denial of a
constitutional right, nor can he show that reasonable jurists would debate, much less
disagree with, this resolution of his claims. For these reasons, the Court declines to
issue a certificate of appealability. Arredondo v. Huibregtse, 542 F.3d 1155, 1165 (7th
Cir. 2008) (citing 28 U.S.C. § 2253(c)(2)); see also Slack v. McDaniel, 529 U.S. 473,
484 (2000).
III.
CONCLUSION
Petitioner’s motion for an evidentiary hearing and petition under Section 2254
are denied. The Clerk of Court is directed to: (1) substitute Anthony Wills, Warden of
Menard Correctional Center, as Respondent in place of Jacqueline Lashbrook; and
(2) alter the caption of this case to Ortega v. Wills. A final judgment order will be
entered separately.
SO ORDERED in No. 18-cv-03631.
Date: September 27, 2022
JOHN F. KNESS
United States District Judge
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