United States District Court, N.D. Illinois
March 8, 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
MEMORANDUM OPINION AND ORDER
On January 5, 2004, this court entered a memorandum opinion and order
denying the petition of Antwan Green ("Green") for a writ of habeas
corpus. Before the court is Green's motion for a certificate of
appealability ("COA") under 28 U.S.C. § 2253(c)(2). He also seeks
appointment of counsel and leave to appeal in forma pauperis ("IFP"). For
the reasons stated below, Green's motion for a certificate of
appealability is denied, his motion for appointment of counsel is denied
and his motion for leave to appeal IFP is granted. MAR 10 2004.
A. Certificate of Appealability
Green raised three claims for relief in his habeas petition: (1)
prosecutorial misconduct; (2) ineffective assistance of trial counsel;
and (3) insufficient evidence to prove his guilt beyond a reasonable
doubt. He is entitled to a COA only if he can make a substantial showing
of a denial of a constitutional right. See Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). Under this standard Green must demonstrate that reasonable jurists would find
this court's assessment of his claims debatable or wrong. See
1. Prosecutorial Misconduct
Green's prosecutorial misconduct claim breaks off into several
components. He argues that the prosecutor in his case engaged in
misconduct during his rebuttal argument both because he (1) referred to
Green's failure to testify and (2) improperly labeled Green's counsel's
argument as the "26th Street shuffle." Concerning Green's failure to
testify, he submits that the prosecution both directly and indirectly
commented on his failure to testify. In ruling on the alleged direct
comment on the failure to testify, this court held that the Illinois
Appellate Court's decision was neither contrary to, nor involved an
unreasonable application of, established Supreme Court precedent. At
trial a detective had testified that Green had confessed to the crime.
Green's counsel at closing arguments denied the confession and questioned
the credibility of this state witness. In rebuttal, the prosecutor noted
that no one testified to contradict the detective's testimony and that
Green's counsel had failed to produce evidence to refute the State's
evidence. The Illinois Appellate Court ruled that the prosecutor's
comments were in response to Green's counsel's statements that Green
denied making a confession and that the detective was an incredible
witness. That ruling comports with clearly established Supreme Court
precedent, see United States v. Robinson, 485 U.S. 25,
32 (1988), and this court's ruling is not debatable among reasonable
jurists. Accordingly, no certificate of appealability will be granted on
Green also complained of indirect comments the prosecutor made about
his failure to testify. Green states that the prosecutor's comments
concerning the uncontradicted nature of his confession were improper because he was the only witness who could
testify in response to the State's evidence. However, as the court noted
in its January 5, 2004 memorandum opinion and order, the Seventh Circuit
has expressly held that "[c]omments by [a] prosecutor on the state of the
evidence that may indirectly refer to the defendant's silence . . . have
not been the subject of Supreme Court guidance." Yancey v.
Gilmore, 113 F.3d 104, 106 (7th Cir. 1997). Moreover, even under
Seventh Circuit case law prior to the Antiterrorism and Effective Death
Penalty Act, such indirect comments would only serve to violate an
accused's right to not testify when "the defendant is the only one who
can rebut or contradict the testimony that makes the prosecutor's
arguments improper." Yancey, 113 F.3d at 107 n.1. As the
Illinois Appellate Court concluded, and this court agreed, that was not
the case here. See United States ex rel. Green v.
Bryant, No 01 6625, 2003 WL 42340, at *7 n. 6 (N.D. III. January
5, 2004). As such, no certificate of appealability will be granted for
these alleged indirect comments.
Finally, Green also complains of statements the prosecutor made
concerning the "26th Street Shuffle," which are detailed in the court's
January 5 memorandum opinion and order. See Green, 2004 WL at *4
n.3, 7. The Illinois Appellate Court noted that such statements were
improper, but that they resulted in harmless error. This court agreed to
the extent that such ruling was not contrary to, nor did it involve an
unreasonable application of, Supreme Court precedent. That ruling also
does not require a COA.
2. Ineffective assistance of counsel
Green argued in his habeas petition that he was denied effective
assistance of counsel because (1) trial counsel failed to move to
prohibit gunshot residue ("GSR") testimony or failed to object to such
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 Green 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 who
would testify as to the persons in the perpetrator's vehicle. For his
claim (1), the court concluded that there was sufficient evidence before
the Illinois Appellate Court to suggest that Green's trial counsel used
the GSR testimony as a matter of trial strategy. For claim (2), the court
noted that Green failed to point out what constitutional violation his
trial counsel committed, and this court's own review of the record
suggested no constitutional violation. Finally, for claim (3), the court
noted that the Illinois Appellate Court reasonably determined that Green
had failed to produce affidavits from the witnesses attesting to what
their testimony would be, and he failed to explain the significance of
such testimony. In his motion for a CO A, Green fails to elaborate on how
a reasonable jurist would find any of these rulings either debatable or
wrong, and the court is not otherwise persuaded. Thus, no COA will be
issued for the ineffective assistance of counsel claim.
3. Sufficiency of evidence
Finally, Green argued in his habeas petition that the State failed to
prove him guilty beyond a reasonable doubt. As the court noted in its
opinion, this claim was raised for the first time in Green's
post-conviction petition and was, accordingly, deemed waived by the
Illinois Appellate Court. The court nonetheless considered the claim on
the merits because the Illinois Appellate Court reasoned that any
prosecutorial misconduct was harmless error given that the evidence
adduced at trial was sufficient to support Green's guilt beyond a
reasonable doubt. Considering the high standard for a sufficiency of the
evidence claim, see Jackson v. Virginia, 443 U.S. 307 (1979) ("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"), and considering the evidence the court discussed in its January
5 memorandum opinion and order, the court does not believe a COA is
warranted on this claim.
B. Appointment of Counsel
Green asks this court to appoint him counsel for his appeal. Civil
litigants have no constitutional or statutory right in federal court to
appointed counsel. See Zarnes v. Rhodes, 64 F.3d 285,
288 (7th Cir. 1995). This rule applies even when the litigant seeks to
collaterally challenge a criminal conviction in a habeas corpus
proceeding. See Dellenbach v. Hanks, 76 F.3d 820, 823 (7th Cir.
1996). Pursuant to 28 U.S.C. § 1915(e)(1), however, a district court
"may request an attorney to represent any person unable to afford
counsel." The decision as to whether counsel should be appointed is
within the sound discretion of the district court, and questions to be
asked in making the decision include "given the difficulty of the case,
[does] the plaintiff appear to be competent to try it himself and, if
not, would the presence of counsel [make] a difference in the outcome?"
Zarnes, 64 F.3d at 288 (brackets in original) (quoting
Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993)).
The record indicates that Green is capable of handling his case without
the assistance of an attorney. He has been able to adequately state the
issues he believes warrants his requested relief in both his habeas
petition and his certificate of appealability. Moreover, the issues
presented in Green's habeas petition do not appear to require
particularly complex or detailed legal research. Finally, the court is
not convinced that the presence of counsel would make a difference in the outcome of this case. Accordingly, Green's motion
for appointment of counsel will be denied.
C. IFP status
Green also seeks to proceed IFP in his appeal. To determine whether
Green should proceed IFP, this court must determine whether he is taking
his appeal in good faith. See 28 U.S.C. § 1915(a)(3). In
order for an appeal to be in good faith, the court must find that a
reasonable person could suppose the appeal has some merit.
Walker v. O'Brien, 216 F.3d 626, 631-32 (7th Cir.
2000). The court is satisfied that petitioner's appeal is taken in good
faith and that a reasonable person could suppose some merit in his
appeal. Accordingly, Green's motion for leave to proceed IFP is granted.
For the reasons stated above, Green's motion for a certificate of
appealability is denied [#30], his motion for appointment of counsel is
denied [#31] and his motion for leave to appeal in forma pauperis is
granted [#32]. It is so ordered.
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