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February 29, 1996

GEORGE DeTELLA, Defendant.

The opinion of the court was delivered by: MORAN

 Petitioner Alfredo Gonzalez (Gonzalez) was convicted by a jury in an Illinois state court of the murders of Kevin and Torrence Wiley and sentenced to life in prison. He has filed this petition for writ of habeas corpus under 28 U.S.C. § 2254. Gonzalez contends that his conviction was improper because he was denied due process of law and effective assistance of counsel at trial. The state responds that Gonzalez's petition is insufficient on the merits to warrant habeas relief. For the reasons set forth below, the petition is denied.


 In the early morning hours of May 25, 1990, Chicago police responded to a call at the corner of Kimball and North Avenues. When they arrived, they found Kevin and Torrence Wiley, 26 and 27 years-old respectively, on the ground bleedly profusely from various severe wounds to the chest, head and mid-section. Both men died before paramedics arrived. At trial, the state's medical and ballistic experts testified that the Wiley brothers were killed by bullets fired at close range by a single 9 millimeter gun. Photographs taken by an evidence technician at the scene, including closeups of the victims' uncleaned wounds, were admitted into evidence over the objections of petitioner's trial counsel.

 Testimony regarding Gonzalez's involvement in the murders was provided chiefly by two witnesses: Rosa Bello (Bello) and Justino Cruz (Cruz), both of whom initially provided information to the police and agreed to testify against Gonzalez with apparent hesitation. Bello did not come forward with any information about the crimes until August 1990, when her boyfriend, Jose Maysonet (Maysonet), was arrested and charged with their commission -- over three months after the murders were committed. Although she agreed to testify against petitioner, she refused to testify in Maysonet's trial.

 Bello testified that on the night of May 24, 1990, Gonzalez, Cruz and a man she knew only as "Fro" arrived at her home and asked to speak to Maysonet, who lived with her at the time. She testified that although she did not overhear the conversation between the four men, all of whom she identified as members of the street gang known as the Latin Kings, Maysonet asked her before too long to retrieve a package from the bedroom. Bello testified that when she gave the package to petitioner he unwrapped it and she saw that it contained a gun. She testified that she then saw Gonzalez put bullets into a clip, load the clip into the gun, rewrap the gun in a towel and a plastic bag, and stick the entire package under his black hooded shirt ("hoodie") at the waist. Finally, Bello testified that prior to her testimony she had been staying at a hotel for several days at the expense of the state's attorney's office because someone allegedly had tried to run her and her son over with a car.

 The state charged Cruz with the murders of the Wiley brothers in August 1990, at which time Cruz gave a statement that was summarized in writing by an assistant state's attorney. Fifteen months later Cruz testified that the state approached him regarding a plea agreement for his truthful testimony against Gonzalez. He stated that he did not agree to testify against petitioner until the state agreed to recommend a 22-year sentence in return for his testimony and his plea of guilty to one of the murders. On cross examination, Cruz indicated that he was aware of the possibility that he might receive day-for-day credit for time served and that "good time" might be deducted from any sentence he would receive under his plea agreement.

 Cruz's testimony encompassed events that occurred just prior to his, Gonzalez's and Fro's arrival at Bello's apartment, the period of time spent in the apartment, and the hour or so after the three men left the apartment with Maysonet and engaged in the actions which Cruz claimed led to the murders. At around 11 p.m. of May 24, Cruz testified that Gonzalez and "Fro," whom Cruz identified as Chris Hernandez, stopped their vehicle to speak with him as he walked toward his girlfriend's home. According to Cruz, when he got into the vehicle with the other men, Gonzalez stated that he and Hernandez were going "to Juan's house to get a gun," and Hernandez indicated that they needed the gun to "do a drug sale." As to the events that took place once they got to Bello's apartment, Cruz largely corroborated Bello's testimony, including identifying the weapon that Gonzalez put under his hoodie as a 9 millimeter gun. He also confirmed that he and the other three men involved in these events were Latin Kings, and that Gonzalez is his uncle.

 According to Cruz, after leaving Bello's apartment, the four men drove to an empty lot near North and Kimball Avenues, where Maysonet parked the car and Gonzalez and Hernandez got out and walked toward the corner. In a statement taken by an assistant state's attorney in August 1990, Cruz indicated that after parking the car, all four men had "hooded up, meaning they put the hoods from their sweatshirts on their heads." Cruz testified that he saw two African-American men standing at the corner as petitioner and Hernandez approached. After Gonzalez and Hernandez conversed with these men for approximately five or ten minutes, Cruz testified that he heard between four and six gunshots fired in rapid succession. Immediately thereafter, Cruz stated that he saw Hernandez and petitioner running back toward the car. He also testified that he saw one of the men with whom they had been conversing on the ground. According to Cruz, when petitioner and Hernandez reached the car, petitioner said, "Let's get out of here. We just shot two guys." Cruz testified that the four men then jumped into the car and drove away.

 Petitioner took the stand in his own defense, claiming that he was with Maysonet, Hernandez and Cruz on the night in question but that he had nothing to do with the attempted drug deal or the murders. He testified that as he was walking home at approximately 12 p.m. on March 25, he saw a blue car driven by Maysonet, Hernandez and Cruz, his fellow Latin Kings members. Gonzalez testified that the men agreed to give him a ride home. After getting into the car, however, Gonzalez testified that Maysonet drove to the alley between St. Louis and Kimball Avenues, without stopping, pulling a 9 millimeter gun from under the car seat at some point along the way. After parking in the alley, Gonzalez testified that the other three men jumped out of the car while he remained inside, and that Maysonet and Hernandez put their hoodies on, which indicated to Gonzalez that they were going to kill somebody or something. Gonzalez testified that after the men had walked away from the car and out of eyesight, he heard five or six shots, and soon thereafter saw the other men return to the car. He testified that as they drove away, he saw two bodies on the side of the street.

 Gonzalez was found guilty of both counts of murder and sentenced to natural life imprisonment. The Illinois Appellate Court affirmed the conviction, People v. Gonzalez, 265 Ill. App. 3d 315, 637 N.E.2d 1135, 202 Ill. Dec. 399 (N.E.2d 1135 (Ill.App. 1994), and the Illinois Supreme Court denied his petition for leave to appeal. Gonzalez now brings this petition for writ of habeas corpus.


 I. Exhaustion and Procedural Default

 We cannot grant a petition for habeas corpus relief unless the petitioner has first exhausted his state court remedies, 28 U.S.C.A. §§ 2254(b),(c), and avoided procedural default of his claims. Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Respondent concedes that each of the issues raised in petitioner's habeas petition was raised in both the Illinois Appellate Court and the Illinois Supreme Court and that petitioner has exhausted his state court remedies. We agree.

 With regard to procedural default, however, respondent's apparent concession does not end our inquiry. On direct appeal the Illinois Appellate Court clearly ruled that Gonzalez waived a number of his claims by failing to object to them at trial and/or in his post-trial motion. *fn2" People v. Gonzalez, 637 N.E.2d at 405, 407, 408. Although it went on to address the merits of each of the claims, there is no doubt that the Appellate Court intended Gonzalez's failure to make contemporaneous objections at trial to be a separate ground for denial of the claims. *fn3" Normally, this would end our inquiry since a state court's finding of procedural default precludes a federal district court's review when the state court clearly states that it bases denial of the appeal on that ground. See Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991) (procedural default is an independent and adequate state ground); Harris v. Reed, 489 U.S. 255, 103 L. Ed. 2d 308, 109 S. Ct. 1038 (1989) (same). Federal court review is similarly precluded when the state court explicitly addresses in the alternative the merits of the defaulted claims, as the Illinois Appellate Court did here. See Rogers-Bey v. Lane, 896 F.2d 279, 282 (7th Cir. 1990), cert. denied, 498 U.S. 831, 112 L. Ed. 2d 65, 111 S. Ct. 93 (1990). In the usual case, then, Gonzalez's claims would be barred unless he could show "cause and prejudice" for his procedural default, or that the denial of his petition would constitute a gross miscarriage of justice. See Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977); Murray v. Carrier, 477 U.S. 478, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986). *fn4"

 Here, however, the state has not objected to Gonzalez's procedural default in its answer, a circumstance which permits our review of the merits of petitioner's claims. In Henderson v. Thieret, the Seventh Circuit held that although "a district court is permitted ... to raise a [procedural default] defense sua sponte, the court is not permitted to override the state's decision implicit or explicit ... to forego that defense." 859 F.2d 492, 498 (7th Cir. 1988), cert. denied, 490 U.S. 1009, 104 L. Ed. 2d 163, 109 S. Ct. 1648 (1989). In this case the state arguably made a knowing and deliberate waiver of its procedural default defense. Although its answer liberally cites to the Illinois Appellate Court decision, the state refers only once to Gonzalez's failure to object at trial (p.4), and never argues default based on the state court's decision. While the Henderson respondent asserted the defense on some claims but not others, implying that its waiver of the latter claims was deliberate id. at 497-98, the respondent's omissions in this case are so glaring that we can only assume they were also intentional.

 Regardless, even if the state's waiver was inadvertent, we would decline to raise the issue on our own motion. See Galowski v. Murphy, 891 F.2d 629, 634 n.11 (7th Cir. 1989) (decision whether to consider the merits depends on comity and judicial efficiency principles), cert. denied, 495 U.S. 921, 109 L. Ed. 2d 315, 110 S. Ct. 1953 (1990). While the parties have fully briefed the merits of petitioner's claims, neither has addressed whether Gonzalez had "cause and prejudice" to fail to make contemporaneous objections. Thus, resources would not be expended fruitlessly by addressing the merits. Furthermore, since the Illinois Appellate Court engaged in a full analysis of the merits of each of the claims that it found to have been procedurally defaulted, we can ensure that state substantive law at least is accorded proper deference in our review.

 II. Due Process Claims

 Petitioner asserts that the cumulative and individual impacts of a number of allegedly prejudicial evidentiary errors of constitutional magnitude deprived him of his due process right to a fair trial. State evidentiary rulings, however, rarely should be the basis for granting habeas relief since the admission of evidence is a matter within the broad discretion of the trial judge. Cramer v. Fahner, 683 F.2d 1376, 1385 (7th Cir. 1982), cert. denied, 459 U.S. 1016, 74 L. Ed. 2d 509, 103 S. Ct. 376. Federal review of state evidentiary rulings under § 2254 is limited to where error results in a denial of a specific constitutional right or is of such magnitude as to result in a denial of fundamental fairness. United States ex rel. Clark v. Fike, 538 F.2d 750, 757 (7th Cir. 1976), cert. denied, 417 U.S. 976 (1974). When a petitioner claims that an error violated his general right to a fair trial, more than a showing of mere prejudice is required; the petitioner must demonstrate that any resulting prejudice amounted to the likelihood that an innocent person was convicted. See Thompkins v. Cohen, 965 F.2d 330, 333 (7th Cir. 1992) ("severely prejudicial harm" must be shown); Cramer v. Fahner, 683 F.2d at 1385 (error must be "'material in the sense of a crucial, critical, highly significant factor (in the outcome of the case)'") (citation omitted).

 Here, Gonzalez argues that each of the evidentiary errors alleged in his petition was significant. Since the state relied mainly on the testimony of two witnesses, Bello and Cruz, who arguably had motivations to fabricate their testimony, Gonzalez contends that the state's case was relatively weak and that any prejudice from evidentiary error was prone to tip the balance against him. While we agree that one of the trial court's evidentiary ...

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