United States District Court, N.D. Illinois
January 5, 2004.
United States of America ex rel. ANTWAN GREEN, Petitioner,
STEVEN C. BRYANT, Warden, Graham Correctional Center,[fn1] Respondent
The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
*fn1 Steven C. Bryant is listed as the Warden for Graham Correctional
Center, where petitioner currently is in custody, and thus is the proper
respondent in this habeas action. See Rule 2(a) of the
Rules Governing Habeas Corpus Cases under 28 U.S.C. § 2254. This court
hereby substitutes Steven C. Bryant as respondent. See
MEMORANDUM OPINION AND ORDER
In a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254, petitioner Antwan Green (hereinafter referred to as "Antwan,"
"defendant" or "petitioner") challenges his conviction for first-degree
murder entered in the Circuit Court of Cook County, Illinois. Petitioner
contends that his conviction was the result of constitutional error.
Petitioner raises the following claims in his habeas petition: (1)
prosecutorial misconduct; (2) ineffective assistance of trial counsel;
and (3) insufficient evidence to prove petitioner's guilt beyond a
reasonable doubt. For the reasons stated below, the court denies
Pursuant to the Antiterrorism and Effective Death Penalty Act
("AEDPA"), this court must deny a petition for a writ of habeas corpus
with respect to any claim adjudicated on the merits in the state court
unless the state court's decision "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States" 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."
See 28 U.S.C. § 2254(d); Price v. Vincent, ___ U.S.
___, 123 S.Ct. 1848, 1852 (2003). A state court's decision is contrary
to clearly established Supreme Court precedent "if the state court
arrives at a conclusion opposite to that reached by [the Supreme] Court
on a question of law" or "if the state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [it]." Williams v. Taylor,
529 U.S. 362, 405 (2000). In order for a state court decision to be
considered "unreasonable" under this standard it must be more than
incorrect, it must lie "well outside the boundaries of permissible
differences of opinion." Hardaway v. Young, 302 F.3d 757, 762
(7th Cir. 2002); see also Schultz v. Page, 313 F.3d 1010, 1015
(7th Cir. 2002) (reasonable state court decision must be at least
minimally consistent with the facts and circumstances of the case).
Before reviewing the state courts' decisions, however, the court must
determine whether the petitioner fairly presented his federal claims to
the state courts, as any claim not presented to the state's highest court
is deemed procedurally defaulted. O'Sullivan v. Boerckel,
526 U.S. 838, 844-45 (1999). Moreover, "[a] federal court will not review a
question of federal law decided by a state court if the decision of the
state court rests on a state procedural ground that is independent of the
federal question and adequate to support the judgment." Moore v.
Bryant, 295 F.3d 771, 774 (7th Cir. 2002). A federal court may not
grant habeas relief on a defaulted claim unless the petitioner can
demonstrate cause for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure to consider
the claim will result
in a fundamental miscarriage of justice. Coleman v.
Thompson, 501 U.S. 722, 750 (1991); Anderson v. Cowen,
221 F.3d 893, 899 (7th Cir. 2000).
FACTS AND PROCEDURAL HISTORY
When considering a habeas petition, this court must presume that any
state court's factual determinations are correct unless the petitioner
rebuts the presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002).
Although the court mostly agrees with the Illinois Appellate Court's
summation of the facts, it also relies on the state court record where
In early 1995, the State charged petitioner and Dwayne McKinzie
("McKinzie") with first-degree murder of Orlando Owens. McKinzie pled
guilty and received a sentence of 24 years imprisonment. (Resp. Ex. F,
Circuit Court of Cook County, Illinois, Post-Conviction No. 95 CR 6108,
Order of Jan. 25, 1999, at 2.) Petitioner was tried by a jury, where he
was represented by counsel. Unless otherwise specified, the following is
a recitation from the Illinois Appellate Court's direct review of
petitioner's conviction (Resp. Ex. B, Appellate Court of Illinois, First
Judicial District, Case No. 1-96-1220, Order of Apr. 24, 1998 at 2-9):
During the State's case-in-chief at petitioner's trial, Detective
George Karl ("Detective Karl") testified that petitioner gave a statement
after Detective Karl informed petitioner of his constitutional rights
under Miranda v. Arizona, 384 U.S. 436 (1966), in the early
morning hours of his arrest on January 31, 1995. Petitioner told
Detective Karl that he and McKinzie drove his tan Chevy to 83rd and
Kingston where they met the victim. The victim entered petitioner's car
and opened a bottle of beer, then the victim and McKinzie began fighting.
Petitioner stated that he pulled into the alley at 9016 Burley and told
the victim and McKinzie to exit the car. After
they exited, petitioner said he heard gunshots. When petitioner
exited his car, he saw McKinzie holding a weapon. The victim was shot,
crawling into the gangway. He and McKinzie followed the victim into the
gangway. Then McKinzie gave petitioner the gun and told him to shoot the
victim in the head. McKinzie took the gun back and said, "Let's finish
this Motherf***ker off." Petitioner said McKinzie began choking the
victim, and petitioner kicked the victim in the head two or three times.
Petitioner said that he and McKinzie then returned to petitioner's car,
drove a short distance, and McKinzie exited. Petitioner drove to
90th Street and Baltimore, where he parked the car,
exited, and walked. He was soon picked up by the police.
According to Detective Karl, Assistant State's Attorney Cory Pollack
("ASA Pollack") re-administered petitioner's Miranda rights, and
petitioner repeated his statement to ASA Pollack. Petitioner declined to
reduce his statement to writing or have it transcribed by a court
Officer Willie Harris ("Harris"), an expert in fingerprint comparison,
testified that a fingerprint lifted from the right front door of
petitioner's car belonged to McKinzie.
Scott Rochowicz ("Rochowicz"), an expert in gunshot residue (GSR)
analysis, testified that he tested the GSR swabs taken from petitioner
and McKinzie after they were arrested. Rochowicz testified that the GSR
test performed on petitioner was inconclusive. There were "elevated"
amounts of barium, antimony, and lead on petitioner's hand, but he could
not say that petitioner handled a weapon. The back of petitioner's right
hand tested positive for antimony and lead, but was "0.96" micrograms
short of the requisite level of barium for a positive GSR test result.
Rochowicz also testified that McKinzie's swabs were negative for GSR.
Deputy Medical Examiner Thamrong Chira ("Dr. Chira") testified that he
performed the autopsy on the victim. Dr. Chira determined that the victim
died of five gunshot wounds and that blunt trauma to the head was a
significant contributing factor. Dr. Chira also found other injuries
consistent with being kicked.
Josephine Muhammad ("Muhammad") testified that on January 30, 1995, at
about 2:20 a.m., she heard five gunshots from the rear of her house at
9018 South Burley. She then heard somebody fall against her bedroom
window and groan, "Help me, somebody help me." She heard the voice from
the front of her house, so she went to look out her living room window.
She saw the victim standing in front of her neighbor's house stumbling
and asking for help. Four or five people came by and told the victim they
would get help. Muhammad testified that when the people left two men came
from the gangway. One man stayed at the end of the gangway, while another
hooded man came out, grabbed petitioner, and dragged him by his feet into
the gangway. She heard the victim say, "No, don't do that to me."
Muhammad then heard the men kicking the victim in the gangway and saying,
"Die, motherf***er." Muhammad heard the victim scream, "Don't hurt me,"
then silence. The police arrived soon afterward.
Officer Dennis Suglich ("Suglich") testified that he was on his way to
the scene of the shooting in his squad car when he received the flash
radio message that two black males wearing dark clothes were seen leaving
the scene of a crime heading westbound. A few minutes later, Suglich saw
petitioner and McKinzie, both dressed in black, running through an empty
lot only one and a half blocks from the scene of the crime. Petitioner
and McKinzie were the only two people on the street. When petitioner and
McKinzie saw Suglich's squad car, they attempted to hide against the side
of an abandoned building bordering the lot. When Suglich exited his squad
car to approach them, both petitioner and McKinzie ran off, heading
eastbound toward Baltimore. Suglich ran after them for less than one
block, pursuing them into a yard with a fence. Suglich was within six
feet of petitioner when petitioner climbed the fence, looking back at
Suglich. The yard was illuminated by lights nearby. Suglich testified
that he saw petitioner's face for "a good second or two." Although
petitioner escaped, Suglich succeeded in tackling McKinzie.
Sergeant Ricardo Pina ("Pina") also testified. At approximately 3:30
a.m., Pina was on patrol in his squad car looking for the person who had
fled from Suglich, a black male wearing dark clothing with a hood, as
described to him an hour earlier. Pina was driving southbound at 90th
Street and Houston when he saw petitioner, who was wearing dark clothes,
walking through an alley behind a library. Petitioner was the only person
on the street. Pina exited his squad car and asked petitioner his name,
address, and where he was going. Petitioner told Pina his name and
address, 8240 S. Ada, and said that he was coming from his girlfriend's
house at 87th Street and Mackinaw. Petitioner, however, could not tell
Pina a precise address or his girlfriend's telephone number.
Pina radioed Suglich, who was transporting McKinzie to the station at
the time, for a verification of the description of the suspect. Suglich
described the suspect as a black male wearing black pants and a black
coat with a hood. Pina then handcuffed petitioner, placed him in the
squad car, and took him to the crime scene, where Suglich identified him
as the individual who had fled from him earlier.
Thereafter, the State rested. (Resp. Ex. L, Trial T. at O-164.) Before
resting, defense counsel requested the trial court to admonish
petitioner. (Id.) Petitioner stated that he agreed
with counsel's decision not to present additional evidence or to
call witnesses. (Id.) Then the defense rested.
The court then proceeded to closing arguments. During closing argument,
petitioner's trial counsel stated that petitioner denied making a
confession. Petitioner's counsel also pointed out that the State failed
to document the existence of the confession and questioned the
credibility of the State's witness, Detective Karl, who testified about
the confession.*fn2 On rebuttal, the prosecutor labeled the petitioner's
counsel's argument as the "26th Street shuffle,"
(presumably referring the Cook County Criminal Courthouse, located at
2650 South California Avenue). The prosecutor pointed out that no one
testified to contradict Detective Karl's testimony about petitioner's
confession and thus petitioner's counsel failed to produce evidence to
refute the State's evidence. Moreover, the prosecutor stated that
petitioner's counsel failed to produce evidence that Detective Karl was a
liar.*fn3 Despite the trial court's sustaining defense
[EDITORS' NOTE: THIS PAGE IS BLANK.]
counsel's objections, the prosecutor also argued that defense
counsel could have subpoenaed the Assistant State's Attorney to testify
about petitioner's confession but failed to do so.
At the conclusion of the trial, the jury deliberated for three hours
and returned a guilty verdict. (Resp. Ex. F at 2.) Subsequently, the
trial court sentenced petitioner to 40 years imprisonment. On May 14,
1997, petitioner, represented by counsel, appealed his conviction,
raising, inter alia, the same claims included in his habeas
petition with the exception of his sufficiency of the evidence claim.
(Resp. Ex. A, Appellate Court of Illinois, First Judicial District, Case
No. 1-96-1220, Opening Br. of the Def-Appellant at 19, 22.) On April 24,
1998, the Illinois Appellate Court affirmed his conviction. (Resp. Ex. B
at 1.) On August 4, 1998,
petitioner filed a pro se petition for leave to appeal.
(Resp. Ex. C, Supreme Court of Illinois, Case No. 1-96-1220, Pet. for
Leave to Appeal at 12, 15.) The Illinois Supreme Court summarily denied
the petition on October 6, 1998. (Resp. Ex. D, Supreme Court of Illinois,
No. 86079, Order of Oct. 6, 1998.)
On or about November 30, 1998, petitioner filed a pro se
post-conviction petition under 725 ILCS 5/122-2 et seq.,
raising, inter alia, the ineffective assistance of counsel and
sufficiency of the evidence claims that are included in his habeas
petition. (Resp. Ex. E, Circuit Court of Cook County, Illinois,
Post-Conviction No. 95 CR 6108, Pet. for Post-Conviction Relief at 3-7.)
The post-conviction court dismissed the petition as frivolous and
patently without merit on January 25, 1999. (Resp. Ex. F at 11.)
Petitioner filed a notice of appeal on February 28, 1999 and received
appointed counsel from the Illinois Public Defender's Office.
Petitioner's counsel filed a motion to withdraw on October 14, 1999.
(Resp. Ex. G, Appellate Court of Illinois, First Judicial District, No.
99-1137, Mot. to Withdraw.) Petitioner filed a response letter to
counsel's motion to withdraw on December 7, 1999. (Resp. Ex. H, Appellate
Court of Illinois, First Judicial District, No. 99-1137, Resp. Letter in
Opp'n to Counsel's Withdraw.) On January 21, 2000, the Illinois Appellate
Court granted the motion to withdraw and affirmed the post-conviction
court's judgment. (Resp. Ex. I, Appellate Court of Illinois, First
Judicial District, No. 1-99-1137, Order of Jan. 21, 2000 at 2.)
Petitioner filed a pro se petition for leave to appeal on May
12, 2000, (Resp. Ex. J, Supreme Court of Illinois, No. 89477, Pet. for
Leave to Appeal), which the Illinois Supreme Court summarily denied on
July 5, 2000. (Resp. Ex. K, Supreme Court of Illinois, No. 89477, Order
of July 5, 2000).
On August 24, 2001, petitioner filed a pro se petition for
writ of habeas corpus in the United States District Court for the Central
District of Illinois. Subsequently, the district court transferred the
petition to the Northern District of Illinois, where it is now before the
A. Claim (1): prosecutorial misconduct
Petitioner alleges that the prosecutor engaged in misconduct during his
rebuttal argument because (1) he referred to petitioner's failure to
testify and (2) improperly labeled petitioner's counsel's argument as the
"26th Street shuffle." Respondent argues that the Illinois
Appellate Court's reasoning on direct review was not contrary to, and did
not involve an unreasonable application of, clearly established federal
law as determined by the United States Supreme Court. See
28U.S.C. § 2254(d)(1).
To show prosecutorial misconduct, petitioner must demonstrate that the
remarks were improper and that they "so infected the trial with
unfairness as to make the resulting conviction a denial of due process."
Darden v. Wainwright, 477 U.S. 168, 181 (1986). In evaluating
prosecutorial misconduct, the court considers several factors, namely,
"(1) whether the prosecutor misstated the evidence, (2) whether the
remarks implicate specific rights of the accused, (3) whether the defense
invited the response, (4) the trial court's instructions, (5) the weight
of the evidence against the defendant, and (6) the defendant's
opportunity to rebut." Hough v. Anderson, 111 F.3d 878, 903 (7th
Cir. 2001), citing Darden, 477 U.S. at 181. "These factors,
however, are not to be applied in a rigid manner, but should be used as a
guide to determine whether there was fundamental unfairness that infected
the bottom line. For that
reason, [courts] often have characterized the weight of the
evidence as the most important consideration." Hough, 272 F.3d
at 903 (internal citations and quotations omitted).
1. Whether the prosecutor commented on petitioner's failure to
On direct appeal, petitioner argued that the prosecutor made improper
comments by referring to petitioner's failure to testify. The Illinois
Appellate Court held that "the prosecutor's remarks in closing rebuttal
argument were not improper references to defendant's failure to testify
or present witnesses." (Resp. Ex. B at 17.) Rather, the appellate court
determined that because petitioner's counsel's closing argument concerned
the strength of the State's case, petitioner's counsel invited the
prosecutor's comments on rebuttal. (Id.) The appellate court
recognized the rule from People v. Barrow, 133 Ill.2d 226, 268,
549 N.E.2d 240, 258-59 (1989), that a prosecutor cannot comment on the
uncontradicted nature of the evidence if his comment is intended to call
the jury's attention to the defendant's failure to testify. The appellate
court, however, further recognized that Barrow, 133 Ill.2d at 267-69,
549 N.E.2d at 258-59, provides that a prosecutor may comment that "the
evidence of guilt is unrefuted . . . where an accused presents no
evidence in his own defense and he is not the only person who could have
done so." (Resp. Ex. B at 17-18.) The appellate court reasoned that, when
the prosecutor's rebuttal argument was "viewed in context," petitioner's
counsel had invited the prosecutor's comments by stating that petitioner
never gave a statement except a denial and that the State's witness lied
about petitioner's confession and arrest. (Resp. Ex. B at 19). The
appellate court also stated, "Here, defendant was not the only person who
could have refuted the State's evidence." (Id.) The appellate
court analogized petitioner's case to People v. Gant,
202 Ill. App.3d 218, 224, 559 N.E.2d 923, 927 (1st Dist. 1990), in which the
court denied relief where the prosecutor
commented during closing argument that the defense counsel produced
no evidence to contradict the State's evidence that the victim died due
to gunshot wounds. (Resp. Ex. B at 19.)
In his habeas petition and reply brief, petitioner raises several
challenges to the Illinois Appellate Court's reasoning, namely, that the
prosecutor directly attacked his failure to testify during rebuttal
argument, that the prosecutor indirectly attacked his failure to testify,
and that the Illinois Appellate Court's reliance on Gant was
"misplaced" because Gant is factually distinguishable from his
case.*fn4 With respect to the prosecutor's direct comments on
petitioner's failure to testify, the United States Supreme Court has
enunciated that "the Fifth Amendment, . . . in its bearing on the States
by reason of the Fourteenth Amendment, forbids either comment by the
prosecution on the accused's silence or instructions by the court that
such silence is evidence of guilt." Griffin v. State of
California, 380 U.S. 609, 615 (1965); see Yancey v.
Gilmore, 113 F.3d 104, 106 (7th Cir. 1997). Here, petitioner relies
on Berryman v. Colbert, 538 F.2d 1247, 1249, 1251 (6th Cir.
1976), where the court granted the writ of habeas corpus because,
inter alia, the prosecutor stated, "Nobody was there when the
robbery took place. Nobody that we can bring here to testify. The
defendants [are] here, yes, but we can't get them to testify" during
The Illinois Appellate Court's determination that the prosecutor's
comments were in response to petitioner's counsel's comments that
petitioner denied making a confession, and that Detective Karl was not a
credible witness, comports with clearly established federal law as
determined by the United States Supreme Court. See United States v.
Robinson, 485 U.S. 25, 32 (1988) ("Where the prosecutor on his own
initiative asks the jury to draw an adverse inference from a defendant's
silence, Griffin holds that the privilege of self-incrimination
is violated. But where as in this case the prosecutor's reference to the
defendant's opportunity to testify is a fair response to a claim made by
defendant or his counsel, we think there is no violation of the
privilege.").*fn5 Thus, unlike Berryman, where the prosecutor
initiated the comment on defendant's silence, here, as in
Robinson, the prosecutor responded in rebuttal to defendant's
challenge to the credibility of the State's witnesses.
With respect to the prosecutor's indirect comments on petitioner's
failure to testify, petitioner asserts that the prosecutor's comments
concerning the uncontradicted evidence of petitioner's confession were
improper because he was the only witness who could testify in response to
the State's evidence. Petitioner relies on United States v.
Handman, 447 F.2d 853, 855-56 (7th Cir. 1971), and Raper v.
Mintzes, 706 F.2d 161, 166 (6th Cir. 1983). In Handman, 447
F.2d at 855, the court reversed the defendant's conviction and remanded
his case for a new trial because the prosecutor made several improper
comments such as referring to the government witness' testimony as
"`intact, unchallenged and uncontradicted'" where only the defendant
"could have challenged or contradicted [that witness'] vital testimony."
In Raper, 706 F.2d at 166, the court upheld the lower court's
granting of the writ of habeas corpus because the prosecutor made at
least five improper and indirect references to the petitioner's failure
to testify such as that the State's evidence was uncontradicted or
unrefuted but the petitioner was the only witness besides the State's
witness who could testify as to the evidence. Finally, petitioner
contends that the Illinois Appellate Court's reliance on Barrow,
133 Ill.2d at 267-69, 549 N.E.2d at 258-59, was erroneous because the
court in Barrow determined that other witnesses besides the
defendant could refute the State's evidence whereas petitioner argues
that he was the only witness who could refute the State's evidence.
Prior to the passage of Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), the Seventh Circuit set forth
a rule that the State violates a defendant's right not to testify where
the prosecutor repeatedly refers to the State's evidence as
uncontroverted but the defendant is the only witness who is able to
refute that evidence. See Yancey, 113 F.3d at 106-07. In
Yancey, however, the Seventh Circuit recognized that this rule
longer is applicable after the passage of the AEDPA because that
rule derived from circuit courts of appeals and not the Supreme Court of
the United States. Id. at 106-07, citing Freeman v.
Lane, 962 F.2d 1252, 1260 (7th Cir. 1992) ("Comments by the
prosecutor on the state of the evidence that may indirectly refer to the
defendant's silence . . . have not been the subject of direct Supreme
Court guidance."). Thus, petitioner cannot show that the prosecutor's
indirect comments on his failure to testify resulted in constitutional
error such that it merits habeas relief.*fn6
Finally, with respect to the Illinois Appellate Court's reliance on
Gant, petitioner argues that Gant is distinguishable
because the prosecutor in Gant was commenting on expert
testimony. Petitioner's attempt to distinguish Gant is without
merit. In Gant, during his closing and rebuttal arguments, the
prosecutor pointed out that the State's witness, the forensic
pathologist, was the only witness who testified about the victim's cause
of death. 202 Ill. App.3d at 224, 559 N.E.2d at 927. The appellate court
recognized the rule that it is improper for the State to comment on the
failure of the defendant to call a witnesses or to present evidence.
Id. The appellate court, however, determined that the prosecutor
did not violate this rule because, viewing the context of his statements,
it was "permissible to comment on the uncontradicted nature of the
evidence for the purpose of demonstrating the absence of any evidentiary
basis for defense counsel's argument." Id. There, the forensic
pathologist was the only expert to testify about the victim's cause of
death. Id. at 225, 559 N.E.2d at 927. Here, Gant
supports the Illinois
Appellate Court's reasoning because it was permissible for the
prosecutor to show that petitioner's counsel lacked an evidentiary basis
when he argued that petitioner denied that he confessed and when he
questioned Detective Karl's credibility.
Accordingly, the court finds that the Illinois Appellate Court's
reasoning was not contrary to, and did not involve, an unreasonable
application of clearly established federal law as determined by the
United States Supreme Court. See 28 U.S.C. § 2254(d)(1).
2. The "26th Street shuffle " comment
On direct appeal, the Illinois Appellate Court determined that the
prosecutor's comment regarding the "26th Street shuffle"
was improper. (Resp. Ex. B at 20.) The appellate court, however,
concluded that the prosecutor's comment was harmless error because "the
evidence adduced at trial proved defendant guilty beyond a reasonable
doubt, and the prosecutor's comments were not so prejudicial as to have
materially contributed to defendant's conviction." (Id.)
On habeas review, petitioner asserts that the prosecutor engaged in
misconduct when he used the term the "26th Street shuffle"
because he attacked the credibility of petitioner and his counsel.
Petitioner relies on Illinois case law where the courts reversed the
defendant's conviction and remanded the case for a new trial because of
the prejudicial effect of the prosecutor's improper remarks during trial.
See People v. Weathers, 62 Ill.2d 114, 120, 338 N.E.2d 880,
883-84 (1975) (during closing argument, the prosecutor told the jury that
the defendant was a "habitual criminal, who had not been caught before
only because he was a `pretty sharp cookie,' and because `he is too
smart'" given that there was no evidence to support these statements);
People v. Grizzel, 382 Ill. 11, 22, 46 N.E.2d 78, 82-83 (1943)
argument, the prosecutor referred to the defendants as "crooks,
thugs and gangsters" and also stated, "`Look at those [(one of the
defendant's)] eyes. Aren't they the slant eyes of a Jap?'"); Peoples.
McCollum, 239 Ill. App.3d 593, 599-600, 607 N.E.2d 240, 245-46 (3d
Dist. 1993) (throughout trial, the prosecutor made several improper
comments, including that the blood sample from the victim came from the
victim's heart, noting the defense investigator's salary was higher than
local police salaries and aligning himself with the local police, stating
"`I guess us poor old country boys in Hancock County didn't do too
bad.'"); People v. McCray, 60 Ill. App.3d 487, 489-90,
377 N.E.2d 46, 47-48 (1st Dist. 1978) (during cross-examination, the
prosecutor asked the defendant if he had "`[a]ny occupation other than
The Illinois Appellate Court determined that, although the prosecutor's
use of the term the "26th Street shuffle" was improper,
his comments resulted in harmless error. This court agrees. Taken in
context, the prosecutor's use of the term "26th Street shuffle" was not
so improper as to prejudice the petitioner. The cases cited by petitioner
demonstrate, unlike here, misconduct on the part of the prosecutor
concerning unsupported remarks directed at the ethnicity or criminal
nature of a defendant. Rather, the prosecutor's comments appear to fall
within the constitutional confines of the adversarial system. See
United States v. Moore, 104 F.3d 377, 390-91 (D.C. Cir. 1997)
(finding that although the prosecutor's reference to the defendant's
attorney as a "professional arguer" who "mucks . . . up" the "judicial
system," could have been construed as disparagement, but that it fell
within the prosecutor's duty to "point out to the jury that the doubt
that will prevent a conviction is a doubt founded upon reason not one
suggested by the ingenuity of counsel.").
This court, however, recognizes that petitioner also asserts under
claim (3) that the State failed to produce evidence at trial that
demonstrated his guilt beyond a reasonable doubt. This claim, therefore,
goes directly to the Illinois Appellate Court's reasoning that there also
was no harmless error because the evidence adduced at trial proved
petitioner's guilt beyond a reasonable doubt. Thus, the court will
consider petitioner's dispute with respect to this portion of the
Illinois Appellate Court's reasoning under claim (3). Otherwise, for the
reasons set forth above, the court denies claim (1) on the merits.
B. Claim (2): ineffective assistance of trial counsel
Petitioner argues that he was denied effective assistance of trial
counsel where (1) trial counsel failed to move to prohibit the gunshot
residue ("GSR") testimony or failed to object to said testimony, (2)
trial counsel failed to prepare a plausible line of defense and
investigate and introduce all evidence and information to the court and
failed to advocate vigorously on behalf of petitioner on his pretrial
motion to suppress, and (3) trial counsel failed to interview and call
two witnesses who observed the crime as "occurrence witnesses" and would
testify as to the persons in the perpetrator's vehicle. (Pet. at 7.)
Respondent asserts that petitioner's claims should be denied based on the
Illinois Appellate Court's reasoning on direct review and the circuit
court's reasoning on post-conviction review.
To prevail on a claim for ineffective assistance of (trial) counsel,
petitioner must meet the stringent two-pronged test enunciated by the
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).
See Bell v. Cone, 535 U.S. 685, 697-99 (2002) (determining that
counsel's performance met the Strickland standard). Under the
Strickland standard, petitioner must show: "(1) that counsel's
performance was deficient; and (2) that the deficient performance
the defense." Kubat v. Thieret, 867 F.2d 351, 359 (7th Cir.
1989); see also Williams, 529 U.S. at 390-91. With respect to
the first prong, this court "must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable assistance."
Strickland, 466 U.S. at 689. As for the second prong, the
petitioner "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." Id. at 694. If the
court finds that the petitioner fails to meet one prong, it need not
consider the other. See Brumley v. DeTella, 83 F.3d 856, 861
(7th Cir. 1996) ("a habeas court may focus on either prong of this test,
as the efficient dispatch of judicial business dictates").
1. Trial counsel's handling of the GSR testimony
On direct appeal, the Illinois Appellate Court determined that trial
counsel was not ineffective for failing to file a motion in limine to bar
the GSR testimony or for failing to object to this testimony during
trial. Specifically, the appellate court recognized that the decision to
file or not to file a motion in limine is a matter of trial strategy and
generally will not support an ineffective assistance of trial counsel
claim, citing People v. Orange, 168 Ill.2d 138, 153,
659 N.E.2d 935, 942 (1995) ("A decision which involves a matter of trial strategy
will generally not support a claim of ineffective representation.").
(Resp. Ex. B at 16.) Moreover, the appellate court determined that trial
counsel had no basis to object to the GSR testimony at trial because the
expert testified that the evidence was inconclusive. (Id.) The
appellate court recognized that defense counsel used the GSR test results
on cross examination and in closing argument to argue that the State had
no evidence that petitioner touched the gun. (Id.) For these
appellate court held trial counsel's performance neither was
deficient nor prejudicial to petitioner. (Id.)
On habeas review, petitioner argues that the appellate court's
reasoning was erroneous because, "[t]rial [c]ounsel should not be allowed
to shield themselves from allegation[s] of ineffectiv[e]ness by simply
claiming trial strategy[,]" citing McCall v. O'Grady,
908 F.2d 170 (7th Cir. 1990). Petitioner's reliance on McCall, however,
is unavailing. In McCall, during the petitioner's criminal
trial, his counsel attempted to impeach the victim with statements from a
police report. Id. at 175-76. The State objected to counsel's
questioning because the police report did not contain the victim's direct
statements but rather contained the victim's recounting of what he said
to a detective. Because the evidence was critical to the petitioner's
criminal case and the trial counsel failed to perfect the impeachment,
the petitioner sought a writ of habeas corpus based on an ineffective
assistance of counsel claim. Without holding an evidentiary hearing, the
lower court agreed with the petitioner and granted the writ. On appeal,
the Seventh Circuit decided to reverse and remand the case for an
evidentiary hearing. Specifically, the court stated that the petitioner
"must come forward with `sufficiently precise information' (i.e.
testimony by [the petitioner's trial counsel] and/or [the investigating
police officer] or the equivalent thereto) to establish that [the
petitioner's trial counsel's] aborted impeachment attempt was indeed a
`failure' and not a strategic decision." Id. at 175.
Here, unlike in McCall, the appellate court had facts before
it that demonstrated that petitioner's trial counsel clearly used the GSR
testimony as a matter of trial strategy. See Strickland, 466
U.S. at 689 ("Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel's
conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.") (internal citations
and quotations omitted). Thus, petitioner fails to show that the Illinois
Appellate Court's reasoning was contrary to or involved an unreasonable
application of Strickland.
2. Trial counsel's investigation and advocacy of petitioner's
On post-conviction review, petitioner only argued that trial counsel
was not a vigorous advocate because he failed to investigate and
introduce evidence during petitioner's suppression hearing and trial.
(Resp. Ex. E at 7.) In interpreting Strickland, 466 U.S. at 689,
the post-conviction court determined that a court "must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable processional assistance" and that petitioner must show
substantial prejudice. (Resp. Ex. F at 8.) The post-conviction court held
that petitioner failed to make such a showing under Strickland.
As in his post-conviction petition, petitioner fails to point out what
trial counsel failed to do that resulted in a constitutional violation.
See generally McCall, 908 F.2d at 173 (stating that the
"petitioner cannot meet [the Strickland] burdens absent a
specific, affirmative showing as to what the missing evidence or
testimony would have been."). Rather, based on the court's review of the
record, the defense counsel's theory of defense was to show that the
State failed to carry its burden. As such, petitioner fails to show that
the post-conviction court's reasoning was either contrary to or involved
an unreasonable application of Strickland.
3. Trial counsel's failure to interview and call potential
Petitioner argues that trial counsel failed in his duty "to at least
contact the potential witnesses named in the police reports[,]" citing
Goodwin v. Balkcom, 684 F.2d 794, 810-12, 817-18 (11th Cir.
1982) (granting the writ of habeas corpus based on ineffective assistance
of counsel claim where, inter alia, counsel failed to interview
crucial witnesses), and Thomas v. Wyrick, 535 F.2d 407, 413-16
(8th Cir. 1976) (granting the writ of habeas corpus where, inter
alia, counsel failed to investigate and interview witnesses and the
petitioner produced an affidavit from a potential witness who recanted
his confession that the petitioner participated in the crime). (P1.
Reply.) Specifically, petitioner argues that trial counsel was
ineffective for failing to call two occurrence witnesses, who would have
testified as to the persons they saw in the perpetrator's vehicle.
On review, the post-conviction court held that petitioner failed to
demonstrate ineffective assistance of trial counsel because petitioner
did not produce affidavits from the witnesses, attesting what would be
their testimony, and failed to explain the significance of their
testimony, citing Peoples. Johnson, 183 Ill.2d 176, 192,
700 N.E.2d 996, 1004 (1998), and People v. Dean,
226 Ill. App.3d 465, 468-69, 589 N.E.2d 888, 890 (1st Dist. 1992). (Resp. Ex. F
at 8-9.) On habeas review, petitioner's claim suffers the same
consequence. See Wright v. Gramley, 125 F.3d 1038, 1044 (7th
Cir. 1997) ("In the case of an uncalled witness, we have held that at the
very least the petitioner must submit an affidavit from the uncalled
witness stating the testimony he or she would have given had they been
called at trial[,]" citing United States v. Kamel, 965 F.2d 484,
491 (7th Cir. 1992)). Thus, this claim fails.
C. Claim (3): sufficiency of the State's evidence to convict
Petitioner raised his claim that the State failed to prove his guilt
beyond a reasonable doubt for the first time in his post-conviction
petition. The post-conviction court determined that petitioner waived
this claim because he should have raised it on direct appeal and not on
post-conviction review, citing People v. Izquierdo,
262 Ill. App.3d 558, 560, 634 N.E.2d 1266, 1268 (4th Dist. 1994) ("Reasonable
doubt of a defendant's guilt is not a proper issue for a post-conviction
proceeding."), and People v. Stewart, 123 Ill.2d 368, 372,
528 N.E.2d 631, 633 (1988) (stating "[a] post-conviction proceeding is not
one in which a defendant's guilt or innocence is determined, but rather
is limited to consideration of constitutional issues which have not
previously been reviewed.").
It is clear that the post-conviction court relied on waiver as an
independent and adequate state law ground to dismiss petitioner's
sufficiency of the evidence claim. See Schaff v. Snyder,
190 F.3d 513, 524-26 (7th Cir. 1999) ("The state appellate court properly
applied the Illinois law of waiver and correctly concluded that, because
the claim could have been raised and addressed on direct appeal but was
not, it was waived."). Thus, the court finds claim (3) to be procedurally
defaulted. Nevertheless, as discussed with respect to claim (1), the
court considers the sufficiency of the evidence claim on the merits
because, on direct review, the Illinois Appellate Court reasoned that the
prosecutor's misconduct was harmless error given that, inter
alia, the evidence adduced at trial was sufficient to support
petitioner's guilt beyond a reasonable doubt.
For a sufficiency of the evidence claim, the court must ask: "whether
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Jackson
443 U.S. 307, 319 (1979) (emphasis in original). In applying this standard,
the habeas court gives deference to the trier of fact and does not make
credibility determinations, substitute judgments or re-weigh the
evidence. See Ford v. Ahitow, 104 F.3d 926, 938 (7th Cir. 1997)
(stating, "in Jackson, [443 U.S. at 319,] the Court made clear
that the responsibility for resolving conflicts in the testimony, for
weighing the evidence and for drawing reasonable inferences from the
basic facts to ultimate facts, is indeed the domain of that trier of
fact"); United States v. Mejia, 909 F.2d 242, 245 (7th Cir.
1990) ("Credibility is for the jury, not this court, to determine [the
witness'] testimony was not inherently unbelievable; it did not
contradict the laws of nature or other indisputably true evidence.").
Here, petitioner argues that the jury convicted him based on
circumstantial evidence that was insubstantial to prove his guilt beyond
a reasonable doubt. Specifically, petitioner points out that the State
relied on the inconclusive GSR testimony, the "sketchy" description of
his vehicle and that his vehicle was in the same vicinity as the crime
scene. Furthermore, petitioner points out that the State produced no gun,
his fingerprints were not found on his vehicle, that none of the
eyewitnesses could identify him as the perpetrator and that the coat he
was wearing did not match the police's description because his coat did
not have a hood. Petitioner asks this court to re-weigh the evidence and
disregard the evidence of his confession which the jury was entitled to
credit. Thus, the court finds that petitioner cannot show that the
Illinois Appellate Court's reasoning that the jury convicted him on
evidence that established his guilt beyond a reasonable doubt was
contrary to, or involved an unreasonable application of, clearly
established federal law as determined by the United States Supreme Court.
See 28 U.S.C. § 2254(d)(1). For these reasons, the court
denies claim (3).
For the reasons stated above, the court concludes that petitioner is
not entitled to relief. This case is terminated.
*fn2 On direct appeal, the Illinois Appellate Court relied on the
following excerpt from defense counsel's closing argument:
[Defendant] never gave a statement, and I will
tell you why he never gave a statement. There is
nothing in the reports, nothing written, nothing
signed, and Detective Karl told you about the
State's Attorney, to try and give his own story
credibility, he said I had a lawyer there who
heard Antwan give that statement, a lawyer who
works with them, with these two gentlemen right
Where is he. If he was there and he heard the
statement, don't you think it was [sic]
make sense that he would come in here and tell you
what he heard, and see if what he heard is the
same as what Detective Karl told you. Absolutely.
It makes sense. The reason that they don't want to
do that, is because they know it is not true.
* * *. We won't put anybody else on, and that
should be enough. We can slide that one by,
because we don't know if he shot him or if he was
* * *
This is not a young man who fell apart and just
decided to give a statement. He did not give a
statement, he never said that. As a matter of
fact, the only thing he did was deny this. (Resp.
Ex. L, Trial Tr. at 183085, 189.)
The Illinois Appellate Court also relied on an excerpt from the
prosecutor's rebuttal argument. The court, however, quotes from the trial
transcript in greater length as follows:
I am going to show you a dance step today,
ladies and gentlemen, and it is called the
26th Street shuffle. The first
step, ladies and gentlemen, is this: You don't
present any evidence and then you comment about
how all of people [sic] are liars.
* * *
And I remind you the defense had the audacity to
say that without any proof whatever, any proof
whatever. He say [sic] that Detective
* * *
He was given the opportunity to cross examine
Detective Karl. Well, Detective Karl, isn't it
true that my client was there for forty hours. Did
anyone testify that anything bad happened to poor
Antwan Green, the murderer of a twenty-two year
old, during that forty hour period of time.
Did anyone come in and say Antwan Green had his
rights violated. Did anyone say he was not allowed
to eat or go to the bathroom. Did any person come
in here and say Antwan Green was examined by a
physician and he told anyone anything.
Did anybody come in at all to tell you that
anything happened to him during that forty hour
period. Did one person whisper it. I kept looking
and listening like you folks during the course of
this trial for someone, anyone to say what
happened to Antwan Green that was bad, because
that is evidence. That is evidence. And did anyone
say poor, poor Antwan Green. That is what
happened. This is what happened to Antwan Green.
* * *
Now, at any point in this trial, has any
tangible evidence been offered by the defendant to
[DEFENSE COUNSEL]: Objection Judge, I don't have
to. He didn't have
THE COURT: Objection sustained.
[THE PROSECUTOR]: If something happened during
that forty hour period, there has been no evidence
that anything was done, and that is very clear.
* * *
We know that he lied to lied to Sergeant Pina
when he came into contact with him. He said I was
with my girlfriend at 83rd and whatever, and what
is her address and her phone number, he can't
* * *
So, that is the first contact he has with the
police. There is no evidence, he just said that.
He said the only thing my client did was deny it.
Did anyone hear that? Did anybody hear any witness
say that? No, and you know why, it is called the
26th Street shuffle, because here
is what happens, you get a case like this, and you
think what am I going to do.
* * *
The defendant has admitted what he did in this
case, he told Chicago Police Officers and the
Assistant State's Attorney * * *. He said where is
the Assistant State's Attorney. Well, he might
have forget [sic] this, but we both have
the right to subpoena people. We can bring in any
witness to court we want to in connection with
this case, and any witness we feel has relevant
If they did think this was important, why didn't
they bring the State's Attorney in this case
[DEFENSE COUNSEL]: Again Judge, objection. I
don't have a duty to bring in witnesses.
THE COURT: Sustained.
[THE PROSECUTOR]: They have the right to
subpoena in witnesses just like we do. Back into
the dance step that I was talking about, so what
is confronting him. He had admitted to the
commission of this crime to Chicago Police
Officers, admitted what he did.
* * *
Now, I keep hearing there is no evidence in the
case, but this is not no evidence, ladies and
gentlemen, and there has been no indication or
evidence offered to contradict this.
* * *
And it is not enough to stand up here and say
they lied because of who they are, all of these
other things. You have to show us, show us what
you mean when you say someone is lying. Just
because you can say the word liar, that is not
* * *
It doesn't matter what community, but unless you
can show some particular hatred between the
parties or some aspect of the case that was
actually perjured or lied about, then you don't
have a case. You can't just say liar, you have to
show something, and there is nothing.
* * *
This is Chicago, and in Chicago, Mr. Green, you
are guilty because you described to a detective
what you did, and because you can't show us and
have not shown us that the detective lied about
what he said, has he. It is just the opposite.
(Resp. Ex. L, Trial Tr. at 0-191-207.)
*fn4 In Gant, the defendant shot the victim, an elderly
woman. 202 Ill. App.3d at 221-22, 559 N.E.2d at 925-26. The victim
subsequently underwent surgery to remove some but not all of the bullets
and also suffered from a broken leg due to the gunshots. The hospital
released the victim, but she returned two or three weeks later and died
there. A forensic pathologist performed an autopsy on the victim and
concluded that the victim died as a result of a pulmonary embolism.
Specifically, the forensic pathologist determined that the victim's
immobility, due to the gunshot wounds, caused stagnant blood to form
blood clots in her legs and the clots dislodged and eventually entered
her pulmonary arteries, causing her death.
During this whole time, however, the victim also was taking medication
for hypertension. During closing argument, the prosecutor speculated that
the defense counsel may offer this fact to rebut the State's evidence
that the defendant caused the victim's death. The prosecutor reminded the
jury that only the forensic pathologist testified as to the victim's
cause of death.
*fn5 Petitioner further contests the propriety of the prosecutor's
comments by arguing that the prosecutor "artfully mixed" petitioner's
failure to testify with his representations that the State's evidence was
uncontroverted. (Pet. Reply.) As support for his argument, petitioner
cites United States v. Shue, 766 F.2d 1122, 1127-28 (7th Cir.
1985). In Shue, the court held that the prosecutor violated the
rule from Doyle v. Ohio, 426 U.S. 610 (1976), which is that "the
prosecution may not use a defendant's post-arrest silence to impeach an
exculpatory story told at trial." The court in Shue determined
that the prosecutor improperly implied that the defendant's exculpatory
story told on the witness stand was false because he did not tell it to
the government agents after his arrest Because the defendant was subject
to cross examination, the court recognized that
[the] slight suggestion of guilty is inextricably
intertwined with any use of post-arrest silence to
impeach credibility. . . . In the present case,
the [prosecutor] . . . implied more than the
slight, inextricably intertwined suggestion of
guilt the prosecutor emphasized the
suggestion of guilt. This use violates our notion
of fundamental fairness.
Shue, 766 F.2d at 1131. The court reversed the defendant's
conviction and remanded the case for a new trial.
Here, petitioner's claim does not concern a violation under
Doyle but rather a violation under Griffin. Cf. Phelps v.
Duckworth, 111 F.2d 1410, 1418-19 (7th Cir. 1985) ("Doyle v.
Ohio, originally was linked to the policy against self-incrimination
through Griffin as well as Miranda [v.
Arizona, 384 U.S. 436 (1966)]. But with the former link severed,
Doyle now depends just on Miranda[.]") (Posner, J.
concurring). As discussed above, petitioner fails to demonstrate that
petitioner's counsel's comments did not invite the prosecutor's comments
*fn6 The Illinois Appellate Court determined that petitioner was not
the only person who could refute the State's evidence. Here, petitioner
asserts that factual determination is incorrect. As mentioned earlier,
when considering a habeas petition, this court must presume that any
state court's factual determinations are correct unless the petitioner
rebuts the presumption by clear and convincing evidence.
28 U.S.C. § 2254(e)(1); Todd, 283 F.3d at 846. The Illinois Appellate Court
did not identify the other witness or witnesses who could refute the
State's evidence, although the facts indicate that Assistant State's
Attorney Pollack could have refuted Detective Karl's testimony that the
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