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January 8, 2004.

DAVID TODD, Petitioner
LAIR J. LEIBACH,[fn1] Warden, Danville Correctional Center, Respondent

The opinion of the court was delivered by: RUBEN CASTILLO, District Judge

*fn1 Todd's petition named Victor Trancoso as Respondent. Mr. Trancoso is the assistant warden at the Illinois River Correctional Center, but Todd has since been moved to the Danville Correctional Center, where Blair Leibach is acting warden. Thus Leibach is the proper respondent, and the caption is amended accordingly. See Szabo v. Walls, 313 F.3d 392, 392 n.* (7th Cir. 2002).


In 1999 a jury convicted David Todd of first-degree murder. He was sentenced to 40 years' imprisonment, and his conviction and sentence were affirmed on direct appeal. He also unsuccessfully instigated several rounds of post-conviction review in the Illinois courts. Todd now petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, his petition is denied. (R. 1-1.)


  On November 28, 1995, Canute McKenzie and Wayne Brown were in a car on the north side of Chicago. They were looking for a man nicknamed "Peanut" who allegedly had robbed McKenzie earlier in the day. Todd approached the car on the passenger side and Brown rolled Page 2 down the window. As Brown leaned over to turn down the stereo, he heard a loud explosion and saw Todd running away from the car towards an alley. Brown ran from the car and when he returned he saw that McKenzie was injured. Brown also saw that he had two bullet holes in the back and collar of his own jacket. McKenzie later died of a gunshot wound to the head. Two other witnesses placed Todd near the passenger side of the car prior to the gunshots. Defendant admitted to being in the area of the shootings on that night, but denied that he was the shooter. Todd, who testified at trial, stated that he twice spoke with Brown and McKenzie regarding the whereabouts of Peanut, but was walking away from the car towards his girlfriend's house when he heard the gunshots. He further testified that he did not see who fired the shots, but that several of his fellow gang members were on the street at that tune.

  During closing arguments at trial, the prosecutor reviewed the evidence presented by the State's witnesses and commented on their backgrounds and the fact that the State had not attempted to hide their convictions from the jury. Defense counsel strongly questioned the State's witnesses' credibility during closing arguments. In rebuttal, the prosecutor emphasized that the State's witnesses were "up front" about their criminal status. Specifically, the prosecutor stated "[b]ut what they all did is they came up and told you about it. Arlisa Nwokorie came in jail clothes. Wayne Brown came in jail clothes. They did not put a coat and tie on and dress up for you folks and try to change what they looked like when they're not in this courtroom." (R. 9, Def.'s Ex. C at 4.) The jury found Todd guilty of first-degree murder and the court sentenced him to 40 years' imprisonment.

  Todd raised one issue in his direct appeal to the Illinois appellate court. He claimed that he was denied a fair trial by the prosecutor's remarks during closing argument because they Page 3 "strongly implied" that Defendant, unlike the prosecution's witnesses, tried to hide his true criminal nature by changing out of his jail clothing for trial. The Illinois appellate court rejected this argument and upheld Todd's conviction and sentence, holding that because the contested comments were made in response to defense counsel's attack on the State's witnesses' credibility, they fell within the permissible bounds of prosecutorial argument. And the court explicitly rejected Todd's contention that that the prosecutor implied that he should have worn jail clothing for trial. Finally, the court noted that the outcome of the trial would not have been different without the prosecutor's comments; Todd did not challenge the sufficiency of the evidence on appeal and the record demonstrated that the prosecutor's comments did not result in prejudice to Defendant.

  Todd subsequently filed a petition for leave to appeal to the Illinois Supreme Court, raising two claims: (1) he was denied a fair trial when the prosecutor argued that he should have worn jail clothes for his trial; and (2) he was denied effective assistance of appellate counsel when his lawyer on appeal failed to raise trial counsel's failure to question state witness Arlisa Nwokorie about her potential hearsay testimony and to object to that testimony at trial. The Illinois Supreme Court denied Todd's petition in June 2001.

  In July 2001 Todd filed his first of three petitions for post-conviction relief. (R. 9, Def.'s Ex. F.) In that petition he raised four issues: (1) ineffective assistance of trial counsel for failure to question Nwokorie about her alleged hearsay testimony; (2) ineffective assistance of trial counsel for failure to object to her hearsay testimony at trial; (3) ineffective assistance of appellate counsel due to counsel's failure to raise claims one and two on appeal; and (4) ineffective assistance of appellate counsel for failure to object to the prosecution's improper Page 4 impeachment of State witness Ian Duffy. On October 5, 2001, the Circuit Court of Cook County concluded that Todd's claims were "frivolous and patently without merit" and thus dismissed Todd's petition, holding that his claims failed to satisfy either prong of the Supreme Court's test in Strickland v. Washington, 466 U.S. 668 (1984).

  Todd sought an appeal from the summary dismissal of his first post-conviction petition, and his appellate counsel moved to withdraw under Pennsylvania v. Finley, 481 U.S. 429 (1988), on the ground that there were no meritorious issues for appeal or post-conviction relief. Todd filed a pro se response to counsel's motion to withdraw, raising three trial court errors for review: (1) the circuit court failed to address his claim that he was denied effective assistance of counsel due to counsel's failure to question prosecution witness Nwokorie outside the presence of the jury regarding potential hearsay testimony; (2) the circuit court abused its discretion in dismissing the post-conviction petition as frivolous and without merit; and (3) the circuit court erred when it held that Todd's ineffective assistance of counsel claims did not satisfy either Strickland prong. On August 23, 2002, the Illinois appellate court granted counsel's motion for leave to withdraw and affirmed the circuit court's dismissal of Todd's post-conviction petition. Todd did not file a petition in the Illinois Supreme Court for leave to appeal the appellate court's decision.

  Todd later filed two additional petitions for post-conviction relief, one on January 23, 2002, and the other on March 3, 2003. In both instances Todd sought to raise several new issues that had not been raised in his first petition; specifically, in his second petition Todd raised a new evidence-sufficiency argument. The circuit court rejected both successive petitions as waived and barred by the doctrine of res judicata. (R. 9, Def.'s Exs. L, T, Circuit Court Orders.) On Page 5 appeal of his second post-conviction petition (Todd did not appeal his third petition), the Cook County public defender who had been assigned the appeal again moved to withdraw under Finley. In his supporting brief, Todd's attorney noted that the petition was successive, that it was barred by the doctrines of waiver and res judicata and that Todd had failed to show that his initial petition was deficient in a way that would excuse his failure to bring the claim earlier. (R. 9, Def.'s Ex. N.) After carefully reviewing the record, counsel's brief and Todd's pro se response, the Illinois appellate court granted counsel's Finley motion to withdraw, "agree[ing] with counsel's evaluation" of the case. (Id., Ex. P.)

  On August 28, 2003, Todd filed the instant petition in this Court pursuant to 28 U.S.C. § 2254, He raises seven claims: (1) the prosecutor improperly impeached him with his post-arrest silence; (2) the prosecutor elicited improper hearsay during cross examination of Arlisa Nwokorie; (3) the trial court erred in admitting Ian Duffy's prior inconsistent statements as substantive evidence; (4) the evidence was insufficient to find Petitioner guilty of first-degree murder; (5) the prosecutor elicited improper testimony during redirect examination of Wayne Brown; (6) the prosecution made numerous improper comments during trial, closing argument and rebuttal; and (7) prosecutorial misconduct occurred at Petitioner's grand jury proceedings when the prosecutor presented misleading evidence and withheld material evidence. (R. 1, Petition.)


  As noted above, Todd brings this petition pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Before a federal court will consider a petition for a writ of habeas corpus on its merits, the petitioner must: (1) exhaust Page 6 all remedies available in state courts, 28 U.S.C. § 2254(b)(1)(A), and (2) fairly present any federal claims in state court first, or risk procedural default, Picard v. Connor, 404 U.S. 270, 275 (1971); Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996). Exhaustion requires the petitioner to present his claims to the highest state court for a ruling on the merits. Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). Full and fair presentment requires that a petitioner give state courts "a meaningful opportunity to pass upon the substance of the claims [petitioner] later presses in federal court." Spreitzer v. Schomig, 219 F.3d 639, 645 (7th Cir. 2000) (internal citation omitted). A petitioner's claim also may be procedurally defaulted when the prisoner fails to meet an adequate and independent state ground for decision, ...

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