Martin v. Greene

Filing 32

MEMORANDUM Opinion and Order: Petitioner Frank Martin's petition 1 is denied. The Court declines to issue a certificate of appealability. See attached MEMORANDUM OPINION AND ORDER for details. Civil case terminated. Signed by the Honorable Iain D. Johnston on 8/29/2024: Mailed notice (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
FRANK MARTIN,

Petitioner,

v.
BRITTANY GREENE,
Respondent.

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No. 21 CV 50442
Judge Iain D. Johnston

MEMORANDUM OPINION AND ORDER
Petitioner Frank Martin is serving a 40 year sentence following his 2015 conviction for
sexually abusing his young daughter. Mr. Martin has petitioned this Court for a writ of habeas
corpus under 28 U.S.C. § 2254. For the reasons given below, the Court denies the petition for a
writ of habeas corpus [1] and declines to issue a certificate of appealability.
BACKGROUND
The Court presumes the correctness of the state court's factual findings, including the
facts set forth in the state appellate court’s opinion on Mr. Martin’s direct appeal, in the absence
of clear and convincing evidence to the contrary presented by Mr. Martin. See 28 U.S.C.
§ 2254(e)(1); Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1 (7th Cir. 2020). The following are the
facts as set forth in the state appellate court’s opinion. People of the State of Ill. v. Frank Martin,
2017 IL App (2d) 150564-U (Ill. App. Ct. Sept. 28, 2017).
Mr. Martin was indicted on multiple counts of predatory criminal sexual assault and
aggravated criminal sexual abuse based on conduct involving his daughter, AM. The evidence at
trial established that Mr. Martin was a nudist. His then-wife testified that early in their marriage
Mr. Martin was often nude, including around his children. As their first two children grew older
his then-wife insisted he wear clothes around the children, but she would hear from the children
that when she was not around he would go nude. Mr. Martin’s daughter AM testified that from
the age of five to about twelve Mr. Martin would take her on hikes while both were nude, though
as she got older she would not take off her clothes. Also beginning at age five Mr. Martin would
come to AM’s room at bedtime naked to tuck her in, crawl into bed with her, kiss her, undress
her, and touch her genitals. She testified that when she was eight or nine, Mr. Martin began
performing oral sex on her, placing her hand on his penis, and penetrating her with his finger.
The daughter testified this happened at least 50 times over the course of years. According to the
daughter’s testimony, her father also watched her shower, and stared at her friends making them
uncomfortable. At the time AM never reported the conduct to her mother, and denied it once
when her mother asked. Her mother testified that on one occasion AM reported that Mr. Martin
had explained sex to her while both were naked, which is what led the mother to demand Mr.
Martin move out of the house and divorce him. The daughter reported Mr. Martin to police only
after her brother ZM contacted police to report his own allegations of sexual abuse.

At trial, ZM testified that between the ages of six and ten he and his father would watch
television after the rest of the family went to bed, and that Mr. Martin would take off ZM’s
clothes and the two would lie together on the couch naked. ZM testified that when he was seven
or eight, he and his father traveled to Indiana for the Brickyard 400 race, and that the night
before in their hotel room, his father disrobed, took off ZM’s shorts, touched ZM’s penis, and
made ZM touch Mr. Martin’s penis. ZM testified that the next morning they wrestled in the hotel
room, during which Mr. Martin pinned ZM on his stomach and placed his erect penis between
ZM’s buttocks. When ZM was 21, his fiancée complained that Mr. Martin had been looking
down her shirt. ZM testified that his fiancée’s report triggered his memories of being abused. It
also caused him to be concerned that Mr. Martin may have been abusing his younger brother,
TM, because he had overheard TM mention an instance when TM and Mr. Martin had hiked
naked, and that Mr. Martin would not let TM get dressed when they returned home. ZM’s
concerns led him to report Mr. Martin to the police. Mr. Martin was not charged with abusing
ZM. TM did not testify at trial.
The government played a video recording of police interviewing Mr. Martin just before
arresting him, during which Mr. Martin admitted being a nudist and hiking nude, but denied that
he did so with his daughter and denied touching either his daughter, AM, or his son, ZM,
inappropriately. When Mr. Martin took the stand at trial, he denied touching his daughter’s
genitals, performing oral sex on her, or penetrating her. He explained that he was often away
from home because his work was more than an hour from home, he put in 12-hour shifts six or
seven nights a week, and as a result from gone from 4:30pm to 7:30am most days. A coworker
with whom he carpooled testified and corroborated the time each day that they left for work and
returned home.
Jurors found Mr. Martin guilty of four of the ten counts of predatory criminal sexual
assault of a child on which he had been indicted, and two of the five counts of aggravated
criminal sexual abuse. The trial court sentenced him to a total of 40 years’ imprisonment. Mr.
Martin filed both a direct appeal and a petition for relief from his conviction, but the trial court
denied his petition, the Illinois appellate court affirmed both his conviction and the denial of his
petition, and the Illinois Supreme Court denied his petition for leave to appeal. He also filed a
post-conviction petition, but the trial court denied it, the appellate court affirmed the denial, and
the Illinois Supreme Court denied his petition for leave to appeal.
Mr. Martin now seeks habeas relief under 28 U.S.C. § 2254. In his petition he alleges
four grounds upon which he seeks relief:
I.

the trial court erred by (a) admitting ZM’s testimony as propensity evidence, and
(b) giving jurors an instruction that (i) misstated the law on propensity evidence
and (ii) placed undue emphasis on the evidence;

II.

trial counsel was ineffective for failing to (a) impeach Sargent Dammon with false
testimony he gave to grand jurors, and (b) move to dismiss the indictment based
on prosecutorial misconduct when presenting false testimony to grand jurors;

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III.

trail counsel was ineffective for failing to call TM at trial to refute AM’s
testimony, and appellate counsel was ineffective for failing to raise trial counsel’s
ineffectiveness on direct appeal; and

IV.

the trial court erred by denying him access to grand jury transcripts and
corresponding police reports.
ANALYSIS

A federal district court may grant habeas relief to a state prisoner only if the state court’s
adjudication of the prisoner’s claims either (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,” see 28 U.S.C. § 2254(d)(1), 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,” see 28 U.S.C. § 2254(d)(2).
To obtain habeas relief under 28 U.S.C. § 2254, a state inmate must first fully exhaust
state court remedies. See 28 U.S.C. § 2254(b)(1)(A). The duty to exhaust includes the duty to
provide a state court with a fair opportunity to “pass upon and correct alleged violations of its
prisoners’ federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal quotation marks
and citations omitted). Fair presentment also requires the petitioner to “assert his federal claim
through one complete round of state court review, either on direct review or in post-conviction
proceedings.” McGhee v. Watson, 900 F.3d 849, 854 (7th Cir. 2018). “This means that the
petitioner must raise the issue at each and every level in the state court system, including levels
at which review is discretionary rather than mandatory.” Lewis v. Sternes, 390 F.3d 1019, 1025
(7th Cir. 2004). Failure to first provide the state court the opportunity to correct any
constitutional errors constitutes a procedural default. Id. at 1026. Claims are also considered
procedurally defaulted—and, therefore, not cognizable on federal habeas review—when they are
denied by a state court “based on an adequate and independent state procedural rule.” Crutchfield
v. Dennison, 910 F.3d 968, 973 (7th Cir. 2018).
A petitioner may not pursue a procedurally defaulted claim under 28 U.S.C. § 2254
unless he can establish cause for the default and actual prejudice as a result of the alleged
violation of federal law, or can demonstrate that the court's failure to consider the claim will
result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750
(1991); Johnson v. Loftus, 518 F.3d 453, 455–56 (7th Cir. 2008). Cause exists where “some
objective factor external to the defense impeded [the petitioner's] efforts to comply with the
State's procedural rule.” Strickler v. Greene, 527 U.S. 263, 283 n.24 (1999) (internal quotation
marks and citation omitted). Prejudice exists where the petitioner shows that the violation of his
federal rights “worked to his actual and substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.” Lewis, 390 F.3d at 1026 (quoting United States v. Frady,
456 U.S. 152, 170 (1982)). The fundamental miscarriage of justice exception is “limited to
situations where the constitutional violation has probably resulted in a conviction of one who is
actually innocent.” Dellinger v. Bowen, 301 F.3d 758, 767 (7th Cir. 2002). This requires new,
reliable evidence of the petitioner's innocence in light of which “no juror, acting reasonably,

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would have voted to find him guilty beyond a reasonable doubt.” Woods v. Schwartz, 589 F.3d
368, 377 (7th Cir. 2009) (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)).
I.

Propensity Evidence

Mr. Martin contends that the state court erred by allowing his son ZM to testify that Mr.
Martin had sexually abused him. Mr. Martin contends it was improper propensity evidence, and
a faulty jury instruction about the use of propensity evidence drew even more attention to it. But
challenges to state evidentiary rulings are not cognizable under 28 U.S.C. § 2254. See Tyler v.
Pfister, No. 18 CV 1449, 2024 U.S. Dist. LEXIS 111038, at *21 (N.D. Ill. June 25, 2024) (citing
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Mr. Martin asserts generally that the use of
propensity evidence violated not only Illinois law, but also his rights to due process under the
U.S. Constitution. But whether the use of prior crimes as propensity evidence violates due
process is an open question, and therefore Mr. Martin cannot show that the state court’s ruling
was contrary to or an unreasonable application of clearly established federal law from the
Supreme Court. See Tyler, 2024 U.S. Dist. LEXIS 111038, at *21-22.
The government argues that this claim should be denied for the additional reason that Mr.
Martin procedurally defaulted it by failing to raise it through one complete round of state court
review. Mr. Martin responds that his procedural default should be excused because his counsel
was ineffective for failing to raise it in state court. But because the claim is not cognizable
regardless of whether it was defaulted, the Court need not address the government’s alternative
basis.
II.

Officer Dammon’s Grand Jury Testimony

Mr. Martin contends that police officer David Dammon testified falsely to grand jurors
“that the victim [AM] complained to The Petitioner’s Wife That there was Sexual Abuse by The
Petitioner as well as The Petitioner Being Nude around His Children and [AM].” Petition [1] at
3. He argues that his trial attorney was ineffective for (1) not moving to dismiss the indictment
because prosecutors procured it with officer Dammon’s false testimony, and (2) not impeaching
officer Dammon at trial with the false testimony he gave to grand jurors. Mr. Martin raised this
argument in his pro se post-conviction petition. Dkt. 21-18 at 350-51, 54-57. There, he argued
that had trial counsel “read the discovery . . . she would have seen in the Grand Jury transcripts,
the testimony given by Sgt. Dammon, creating the false impression that [AM] had complained to
[Mr. Martin’s ex-wife] about sexual abuse and not just nudity.” Id. at 351.
The government argues that Mr. Martin procedurally defaulted these claims because,
although he raised them in his post-conviction petition, he did not raise them in the appeal of the
denial of his post-conviction petition, or in his petition for leave to appeal to the Illinois Supreme
Court. Mr. Martin responds that his appellate counsel was ineffective for refusing to raise the
issues on appeal, and therefore his procedural default should be excused.
On the issue of procedural default, the Court makes two observations. First, although he
was represented by counsel for his post-conviction appeal, he filed his petition for leave to
appeal to the Illinois Supreme Court pro se, and nowhere in that petition does he raise any
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argument about officer Dammon’s grand jury testimony (though the decision of the Appellate
Court that he appealed never addressed the issue because counsel never raised it). Second, to
rely on ineffectiveness of counsel to excuse procedural default, that ineffectiveness of counsel
argument must have been raised through one complete round of state court review. See Edwards
v. Carpenter, 529 U.S. 446, 449-50 (2000) (“‘[A] claim of ineffective assistance,’ we said,
generally must ‘be presented to the state courts as an independent claim before it may be used to
establish cause for a procedural default.’”) (quoting Murray v. Carrier, 477 U.S. 478, 489
(1986)). This Court’s review of the record reveals that Mr. Martin first argued that his appellate
counsel was ineffective for failing to repeat his arguments about officer Dammon’s grand jury
testimony not in state court, but rather in the reply brief filed in support of his § 2254 habeas
petition, and only to argue that any procedural default should be excused.
Accordingly, this claim is procedurally defaulted. However, even if it was not, Mr.
Martin could not prevail. To establish that his counsel was ineffective, he must show that (1) his
appellate counsel’s performance fell below an objective standard of reasonableness, and (2) a
reasonable probability that, but for counsel’s performance, the result of the proceeding would
have been different. Hinton v. Alabama, 571 U.S. 263, 272 (2014) (applying the ineffective
assistance of counsel analysis set out in Strickland v. Washington, 466 U.S. 668 (1984)). Mr.
Martin cannot making those showings. First, there is no clearly established right to have an
indictment dismissed “because of perjured grand jury testimony where the perjurious testimony
is not repeated before the petit jury which convicts.” United States ex re. Changyaleket, No. 07
CV 1694, 2008 U.S. Dist. LEXIS 99107, at *13 (N.D. Ill. Dec. 8, 2008) (internal quotation
marks and citation omitted). In fact, there is no constitutional right to be indicted by a grand jury
in state prosecutions. See Ashburn v. Korte, 761 F.3d 741, 758 (7th Cir. 2014). Counsel’s refusal
to argue otherwise is not unreasonable.
Second, the issue of what AM told her mother never came up during the direct
examination of officer Dammon. Dkt. 21-17 at 37-56 (trial testimony of officer Dammon).
Accordingly, his counsel had no basis for impeaching officer Dammon with whatever statements
he made to grand jurors on that issue. To the extent Mr. Martin argues that his counsel should
have used officer Dammon’s grand jury testimony to portray him as a liar who cannot be
believed, he has not established that officer Dammon’s statements were false. Mr. Martin merely
labels them false, without pointing to any evidence that officer Dammon, prosecutors, or his
attorney knew them to be false, or that the Court or anyone else could conclude that they were
false. In his pro se post-conviction petition, he asserted they were false because during “the
Interrogation interview of the Petitioner . . . The Petitioner at No time agreed to [AM]’s
accusations.” Dkt. at 21-18 at 354. But that establishes only that Mr. Martin disagreed with
officer Dammon’s statement, not that officer Dammon’s statement was false. In the end, Mr.
Martin has not established that his appellate counsel fell below an objective standard of
reasonableness by not raising these issues, or that using officer Dammon’s grand jury testimony
would have led to a different result given the testimony from Mr. Martin’s victims about the
nature of his conduct.

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III.

Failure to Call TM as a Trial Witness

Next, Mr. Martin argues that his trial attorney was ineffective for failing to call his son
TM as a trial witness, and counsel in his direct appeal was ineffective for failing to raise the issue
on appeal. Mr. Martin’s petition does not attach an affidavit or any other evidence of what
testimony TM would have offered. Rather, Mr. Martin characterizes it as follows: “[TM]’s
testimony would have refuted the False/Hearsay Testimony of [AM] That was evidence of
Alleged other Crimes.” Petition [1] at 3. In his reply brief he clarifies that his argument is not
that he would have used TM’s testimony “to refute the sexual abuse allegations” of AM because
TM was born after that alleged abuse, but rather “to refute the character and propensity value of”
ZM’s testimony. Reply [26] at 9. Specifically Mr. Martin contends that TM’s testimony would
have refuted ZM’s claim “that he heard T.M. talking with his father about hiking naked and that
his father wouldn’t let him get dressed.” Id. at 10. Mr. Martin argues that TM’s testimony would
have been admissible under 725 ILCS 115/7-3(b), which permits evidence of not only certain of
the defendant’s other sex offenses, but also “evidence to rebut that proof or an inference from
that proof.”
Mr. Martin raised this claim in his state court post-conviction petition. Dkt. 21-18 at 33559. The state trial court summarily dismissed the petition and Mr. Martin appealed. In its order
denying his post-conviction appeal, the Illinois Appellate Court applied Strickland and concluded
that Mr. Martin suffered no prejudice because TM’s testimony would have been inadmissible
under Illinois law for two reasons: (1) whether TM ever said that Mr. Martin took him hiking
nude and refused to let him get dressed afterwards is irrelevant to whether Mr. Martin sexually
abused AM; (2) evidence that Mr. Martin did not sexually abuse TM is character evidence that is
inadmissible to show that Mr. Martin did not sexually abuse his other children; and (3) TM’s
testimony is inadmissible to impeach ZM’s credibility because, even if TM denied saying that
Mr. Martin took him nude hiking and would not let him get dressed, such testimony concerns a
matter collateral to whether Mr. Martin abused ZM or AM. Dkt. 21-7 at 1-9.
When reviewing a petitioner’s claims under § 2254, a federal court is limited to
determining whether the state court decision was contrary to, or involved an unreasonable
application of, clearly established federal law, or was based an unreasonable determination of the
facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(2). In reaching that
determination, a “federal court cannot disagree with a state court’s resolution of an issue of state
law.” Miller v. Zatecky, 820 F.3d 275, 277 (7th Cir. 2016). And “[w]here the state court has
ruled that trial counsel was not ineffective because a state law argument would have failed, that
state law ruling is unassailable on habeas, even if it is couched as an ineffective assistance of
counsel claim.” Rogers v. Wells, 96 F.4th 1006, 1012 (7th Cir. 2024).
To begin, in his petition Mr. Martin makes representations about what TM’s testimony
would have been, but he has not supplied an affidavit from TM corroborating those
representations. “[E]vidence about the testimony of a putative witness must generally be
presented in the form of actual testimony by the witness or on affidavit.” United States v.
Ashimi, 932 F.2d 643, 650 (7th Cir. 1991). Neither side makes note of the lack of an affidavit.
In his state court post-conviction petition Mr. Martin mentions that an “affidavit is not included
for [TM], due to the fact that Petitioner is not allowed contact with him by his mother.” Dkt. 21-6-

18 at 352. While that explains why Mr. Martin has no affidavit, it raises the question how he
knows what TM’s testimony would be.
But even accepting that TM would testify as Mr. Martin represents he would, Mr. Martin
still cannot prevail on his ineffective assistance of counsel claim. The Illinois Appellate Court
determined that Mr. Martin suffered no prejudice when his trial counsel did not call TM as a
witness because under Illinois law the testimony would have been irrelevant or otherwise
inadmissible. Mr. Martin takes issue with the appellate court’s conclusion, arguing that under
725 ILCS 115/7-3(b), when the state admits evidence of his other sex offenses as propensity
evidence, he is then entitled to rebut that evidence. In his motion for reconsideration to the
Illinois Appellate Court, he supported that argument with a citation to People v. Ward, 952
N.E.2d 601 (Ill. 2011). In Ward, the trial court allowed evidence of the defendant’s alleged
sexual assault of another woman as propensity evidence under 725 ILCS 115/7-3(b), but did not
allow evidence that the defendant had been acquitted of that assault. See Ward, 952 N.E.2d at
603-04. The Illinois Supreme Court concluded that the trial court had erred because 725 ILCS
5/115-3(b) allows not only propensity evidence but also “evidence to rebut that proof or an
inference from that proof,” and that the “acquittal evidence defendant sought to admit would
have aided in rebutting the inference created by L.S.’s testimony that he had a propensity to
commit sex offenses.” Ward, 952 N.E.2d at 607.
Ward involved propensity evidence that the defendant had been involved in another
sexual assault, and rebuttal evidence that he had not. In contrast, TM had no first-hand
knowledge of whether Mr. Martin sexually abused ZM. Rather, as the Illinois Appellate Court
addressed, TM’s testimony would been offered in response to the propensity evidence only to
raise questions about ZM’s truthfulness. But because TM’s testimony would have involved the
collateral issue of what Mr. Martin did or did not do to TM rather than to ZM, it was
inadmissible for impeachment purposes, relying on People v. Abrams, 260 Ill. App. 3d 566, 579
(1994). It also noted that Mr. Martin claimed only that TM would testify that Mr. Martin never
took him hiking nude, not that he would deny ever saying that Mr. Martin took him hiking nude
or that ZM was lying. The appellate court reasoned that TM’s testimony would therefore be
irrelevant to whether ZM was being truthful when he testified that his reason for finally alerting
police to Mr. Martin’s conduct included his concern about TM. These are all issues of state
evidentiary law, and on habeas review federal courts do not disagree with a state court’s
resolution of its state law. See Pierce v. Vanihel, 93 F.4th 1036, 1046 (7th Cir. 2024) (state court
rulings on admissibility of evidence, even if wrong, are not reviewable under § 2254). Given
that TM’s testimony would have been inadmissible under state law, Mr. Martin cannot establish
that he was prejudiced by trial counsel’s failure to offer the evidence, or appellate counsel’s
failure to raise the issue on direct appeal. See Lopez v. Thurmer, 594 F.3d 584, 587 (“[W]e will
not fault counsel as ineffective for failing to advance a position under state law that the state
appellate court said was meritless.”) Because Mr. Martin’s argument about Strickland’s
prejudice prong fails, the Court need not address the other prong, whether counsel’s performance
was deficient. Adeyanju v. Wiersma, 12 F.4th 669, 675 (7th Cir. 2021).

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IV.

Grand Jury Transcripts and Corresponding Police Reports

Finally, Mr. Martin contends that he was denied due process and equal protection of the
law because the state criminal court denied his requests for grand jury transcripts and
corresponding police reports. Mr. Martin cannot not prevail on this claim for two reasons. First,
although he raised the issue of grand jury transcripts in a pro se motion to vacate the state trial
court’s denial of his post-conviction petition, Dkt. 21-2 at 36, which he appealed, Dkt. 21-2 at 44,
he never raised the issue in his pro se petitions for leave to appeal to the Illinois Supreme Court,
Dkt. 21-5 at 1-19; Dkt. 21-13 at 1-11. He never raised the issue of corresponding police reports
at all. Accordingly, he procedurally defaulted these issues.
Second, even if he did not procedurally default the issue about grand jury transcripts, he
admitted in his pro se post-conviction petition filed in state court that the grand jury transcripts
were produced to his trial counsel during discovery. Dkt. 21-18 at 351 (“It was not even known
to Petitioner if his attorney even took the time to read the discovery. Had she done such, then
there is no doubt that she would have seen in the Grand Jury transcripts, the testimony given by
Sgt. Dammon . . .”). And the state court confirmed that the grand jury transcripts had been
produced to the defendant on July 16, 2013 as part of the government’s answer to his motion for
discovery. Dkt. 21-2 at 42. For the first time in his reply brief he suggests he was unable to
obtain the grand jury transcripts for use in his post-conviction proceedings. But he does not
establish that he was harmed given that even if the transcripts show that officer Dammon
testified to grand jurors as Mr. Martin has represented, Mr. Martin still fails on the ineffective
assistance of counsel claim he raised in his § 2254 petition.
CONCLUSION
For the reasons given, Mr. Martin’s petition under 28 U.S.C. § 2254 [1] is denied. The
clerk is directed to terminate this civil case.
Under 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 a petitioner. 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. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing 28 U.S.C.
§ 2253(c)(2)). To make a substantial showing, the petitioner must 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 n.4 (1983)); see Lavin v. Rednour, 641 F.3d 830, 832 (7th Cir. 2011).
The Court’s denial of Mr. Martin’s habeas petition relies on settled precedent, and its
application of this precedent to the claims in his petition does not present difficult or close
questions. Accordingly, the Court declines to issue a certificate of appealability.
Date: August 29, 2024

By:

__________________________________________
Iain D. Johnston
United States District Judge
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