United States District Court, N.D. Illinois
March 2, 2004.
ARNALDO CEPEDA, Petitioner,
JERRY L. STERNES, Warden, Respondent
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner, Arnaldo Cepeda, seeks a writ of habeas corpus against the
Dixon Correctional Center Warden, Jerry Sternes, pursuant to
28 U.S.C. § 2254. Cepeda raises one claim in his writ, alleging that
prosecutorial misconduct prevented him from receiving a fair trial. His
single claim contains four sub-parts: (1) the prosecutor's remarks during
cross-examination denied him a fair trial, (2) the prosecutor shifted the
burden of proof by some of his remarks, (3) the prosecutor wrongfully
vouched for the credibility of the State's cooperating witness, and (4)
the prosecutor wrongfully called his defense counsel "disingenuous."
On April 26, 2001, Cepeda was convicted by a jury of attempted
first-degree murder. Cepeda was sentenced to ten years' imprisonment.
Cepeda appealed his conviction to the Illinois Appellate Court, Second
District, arguing that the prosecutor's examination of Cepeda and the
prosecutor's closing arguments contained improper remarks that denied
Cepeda a fair trial. On January 1 4, 2003, the Appellate Court affirmed
Cepeda's conviction and sentence. The Illinois Supreme Court subsequently
denied Cepeda's Petition for Leave to Appeal.
A federal court may grant a state habeas petitioner relief for a claim
that was adjudicated on the merits in state court only if that
adjudication "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."
28 U.S.C. § 2254(d)(1). The habeas petition bears the burden of
demonstrating a "contrary to" or "unreasonable application" of federal
law. See Woodford v. Visciotti, 123 S.Ct. 357, 360 (2002)
(Woodford). The reviewing court applies a highly deferential
standard when evaluating the state court's rulings, and the state court's
decision is given the benefit of the doubt. See Woodford, 123 So.
Ct. at 360.
A state court's ruling is "contrary to" clearly established federal law
if it applies a rule that contradicts the governing law set forth in
federal law or if it includes a set of facts that are materially
indistinguishable from a decision of the Supreme Court of the United
States and nevertheless arrives at a different result than the Supreme
Court precedent. See Mitchell v. Esparza, 124 S.Ct. 7, 10
A state court's ruling is an "unreasonable application" of federal law
if the state court identifies the correct governing legal principle from
the Supreme Court precedent but unreasonably applies that principle to
the facts before the state court. See Wiggins v. Smith, 123 So.
Ct. 2527, 2535 (2003) (Wiggins). A state court's decision must
be more than incorrect or erroneous to find an unreasonable application
of federal law; the state court's application must be "objectively
unreasonable." See Wiggins, 123 S.Ct. at 2535.
Cepeda argues that remarks by the prosecutor during the prosecutor's
cross-examination of Cepeda and his closing arguments prevented Cepeda
from having a fair trial and improperly shifted the burden of proof.
The Illinois Appellate Court addressed Cepeda's arguments as to the
prosecutor's comments during the cross-examination and closing arguments.
At trial, Cepeda presented an alibi defense that
he had attended a church festival and had seen a fight involving
Ana Hernandez. On cross-examination, the prosecutor questioned Cepeda as
Q. Now, you say you were at St. Nicholas festival,
and you were there with a bunch of your friends,
is that right?
* * *
Q. And in terms of the people that were there, how
many people did you know by name that were there
A. A lot.
* * *
Q. And all these people then would . . . be
able to say that you were there? (emphasis
The defense counsel objected; and at a sidebar, the trial court
sustained Defendant's objection to the above-emphasized question.
However, the trial court did not sustain the objection before the jury.
During his closing argument, the prosecutor referred to Cepeda's
"self-serving testimony about some sort of a fight with Ana Hernandez."
The prosecutor continued: "There's no corroboration of that . . . The
. . . instructions will tell you that [you] can't speculate about
that. There is no evidence of that. Where does that come from?" The
Defendant objected, and the trial court sustained the objection. The
prosecutor corrected himself, stating "Other than the defendant's
testimony, there was no evidence of that fight."
Cepeda argued to the Appellate Court, and to this Court, that the
emphasized question above and the above comments during closing argument
improperly shifted the burden of proof to Cepeda. The Appellate Court
rejected Cepeda's argument, finding that because Cepeda presented an
alibi defense and injected into the case his activities with potential
witnesses during a particular period of time, Cepeda's failure to produce
such witnesses was a proper subject of comment on the part of the
prosecution. Here, the prosecutor's question and comments were directed
at Cepeda's failure
to produce evidence supporting his alibi, not an improper attempt
to shift the burden of proof.
In his rebuttal closing argument, the prosecutor also stated:
When you examine the lack of bias of [the State's]
witness compared to the bias of the alibi
witnesses, you will see sometimes there's not, not
two sides to every story. If there are not two
sides . . . you can conclude from the evidence,
and I submit to you [that] you should conclude
from the evidence that defendant is guilty.
Cepeda argued in his appeal, and now, that the above comment
distorted the burden of proof. The Appellate Court rejected Cepeda's
argument on multiple grounds. The Appellate Court found that the trial
court properly instructed the jury on the burden of proof; thus, any
misstatement by the prosecutor was not reversible error. In addition, the
prosecutor was properly addressing Cepeda's theory of defense because
defense counsel stated in her opening argument that "There is a second
side to this story"; and in her closing argument, she stated "There are
two sides to every story." Therefore, the "second side" was the crux of
Cepeda's theory of the case; and the prosecutor was entitled to respond
that, in light of the witnesses' relative credibility, a "second side"
did not exist.
Cepeda also argues that the prosecutor improperly vouched for a
Ana Hernandez testified for the State after executing a written
cooperation agreement. The agreement included dismissal of charges
against Hernandez; and, in return, Hernandez would testify truthfully. In
his rebuttal argument, the prosecutor stated:
And there are other things in [the argument] that
say [that Hernandez] has to tell the truth. She
must tell the truth, which is why you enter into
. . . the agreement.
* * *
Are the people . . . or the police going to
enter into an agreement for a certain disposition
if she doesn't tell the truth? We know what the
The Appellate Court rejected Cepeda's argument, finding that the
defense counsel invited
the prosecutor's first remark when she stated during her closing
argument that Hernandez's "deal requires her to testify consistent with
the way [the prosecutors] want the case to end up. They want her to
identify [defendant]." Furthermore, defense counsel's statement suggested
that the prosecution had induced Hernandez to testify falsely; and the
prosecutor was entitled to respond that the State would not do so and
that Hernandez was actually required only to "tell the truth."
The Appellate Court also found that the second comment was not improper
because defense counsel had suggested that the prosecution had bargained
for a lie, and the prosecutor had responded that the bargain was actually
for the truth. By arguing that "[w]e know what the truth is," the
prosecutor simply asserted that the State knew the difference between the
truth and a lie and knew that the bargain was for the former rather than
the latter. Accordingly, the Appellate Court held that the comment was
not an improper expression of personal opinion as to whether Hernandez
actually complied with the agreement by telling the truth.
Lastly, Cepeda argues that the prosecutor improperly attacked the
defense counsel's integrity.
In rebuttal, the prosecutor stated that, in making a particular
argument in her closing, defense counsel was "disingenuous." The defense
objected, and the trial court sustained the objection. During Cepeda's
appeal, the State conceded that the prosecutor's remark "might have been
inappropriate" but argued that any resulting prejudice had been cured.
The Appellate Court agreed, finding that the prosecutor's remark was
isolated and fairly mild and that the trial court cured any prejudice.
Cepeda argues that the state court unreasonably applied Supreme Court
precedents and that the state court's decision was contrary to
established federal law. However, Cepeda merely reiterates the same
arguments that were raised and rejected by the Appellate Court.
Whether prosecutorial misconduct is so egregious as to require a new
trial, as a matter of constitutional law, is determined by examining six
factors: (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. See Darden v. Wainright, 477 U.S. 168,
181-82 (1986); Howard v. Gramley, 225 F.3d 784, 793 (7th Cir.
A review of the Appellate Court's ruling clearly demonstrates that the
court applied the governing federal law, and its application of that law
was not objectively unreasonable. Accordingly, Cepeda's habeas petition
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