United States District Court, N.D. Illinois, Eastern Division
July 8, 2004.
United States of America ex rel. FRED CISERO, Plaintiff,
PAUL BARNETT, Warden, Robinson Correctional Center Defendants.
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
Before the court is Fred Cisero's petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Petitioner, Fred Cisero
("Cisero" or "Petitioner"), challenges his conviction for
delivery of a controlled substance, in violation of 720 Ill.
Comp. Stat. 570/401(a)(2)(D). Cisero argues that he is entitled
to habeas relief based on prosecutorial misconduct, which
deprived him of his federal due process right to a fair trial,
and a violation of Brady v. Maryland, 373 U.S. 83 (1963). For
the reasons stated below, the petition is denied.
On habeas review, the court must presume that the state courts'
factual determinations are correct unless the petitioner rebuts
the presumption by clear and convincing evidence. See
28 U.S.C. § 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 544-46 (1981);
Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). Cisero has
not presented clear and convincing evidence to rebut this
presumption. Therefore, the court adopts the Illinois Appellate
Court's recitation of facts. See People v. Cisero, No.
98-1830, 775 N.E.2d 1068 (Ill.App.Ct. June 30, 2000) (unpublished
opinion); see also Resp's. Answer, Ex. B.
On June 21, 1995, Cisero delivered nearly five kilograms of
cocaine to an individual named E.K. Chinwah, who was cooperating
in an ongoing investigation by the United States Drug Enforcement
Agency ("DEA"). The following day, Cisero received a bag from
Chinwah, which contained approximately $125,000 in cash. The DEA
videotaped the transaction, and had also taped several
conversations between Cisero and Chinwah leading up to the
On October 16, 1995, a group of federal and local law
enforcement officers went to Cisero's home to discuss his
participation in the June transaction and to seek his cooperation
in the investigation of another individual. During the visit,
Cisero made statements to the officers detailing his involvement
in various drug transactions. In addition, Cisero gave the
officers a handgun, two shotguns, and approximately $27,000 in
cash. At that time, Cisero agreed to cooperate with law
enforcement; however, a few days later he expressed his intention
not to cooperate.
On November 2, 1995, Cisero was arrested and charged with one
count of delivery of a controlled substance, based on the June
transaction, and three counts of unlawful use of a weapon by a
felon, based on the handgun and shotguns he turned over to law
enforcement officers on October 16. The State dropped the
unlawful use of a weapon charges, and proceeded to trial on the
delivery of a controlled substance charge.
B. Procedural History
Prior to trial, Cisero filed a motion to suppress certain
statements and evidence given to law enforcement officials during
the October 16 visit to his home. On September 24, 1997, a
hearing was held and the motion was denied. On April 16, 1998,
following a jury trial in the Circuit Court of Cook County, Cisero was convicted of one count of delivery of
a controlled substance, in violation of 720 Ill. Comp. Stat.
570/401(a)(2)(D), and sentenced to a term of twenty years
Cisero filed a direct appeal from his conviction to the
Illinois Appellate Court, First Judicial District, raising the
following issues: (1) the trial court erred in not suppressing a
statement made during custodial interrogation in violation of
Miranda v. Arizona, 384 U.S. 436 (1966); (2) various comments,
amounting to prosecutorial misconduct, resulted in the denial of
a fair trial; and (3) the trial court abused its discretion in
not granting a continuance based on the State's late production
of information that the United States Attorney had elected not to
prosecute an individual who testified against Cisero. See
Resp's. Answer, Ex. A (Cisero's appellate brief). On June 30,
2000, the Illinois Appellate Court affirmed Cisero's conviction.
See People v. Cisero, No. 98-1830, 775 N.E.2d 1068 (Ill.App.
Ct. June 30, 2000) (unpublished opinion); see also Resp's.
Answer, Ex. B.
Cisero then filed a petition for leave to appeal to the
Illinois Supreme Court, raising the single issue of prosecutorial
misconduct. See Resp's. Answer Ex. C (Cisero's petition for
leave to appeal). On October 4, 2000, the Illinois Supreme Court
denied Cisero's petition for leave to appeal. See People v.
Cisero, 738 N.E.2d 930 (Ill. Oct. 4, 2000); see also Resp's.
Answer, Ex. D.
Cisero filed his petition seeking a writ of habeas corpus,
brought pursuant to 28 U.S.C. § 2254, in the federal district
court on October 2, 2001, within the one-year deadline provided
by 28 U.S.C. § 2244(d)(1). In the instant petition, Cisero argues
that he is entitled to habeas relief based on prosecutorial
misconduct, which deprived him of his federal due process right
to a fair trial, and a violation of Brady v. Maryland,
373 U.S. 83 (1963). With regard to the prosecutorial misconduct claim,
Cisero argues that "[r]epeated improper comments by the
prosecutor, in closing arguments to the jury, denied [him] a fair trial." Cisero's Pet. for Writ
of Habeas Corpus, Part III(1)(A). With regard to the Brady
violation claim, Cisero argues that the State failed to timely
disclose the fact that "the informant [Chinwah], who testified at
trial, was not going to be prosecuted for an unrelated Federal
investigation. . . ." Id., Part III(1)(B).
A. Standard of Decision
Cisero's petition is governed by 28 U.S.C. § 2254(d), as
amended by the Antiterrorism and Effective Death Penalty Act
("AEDPA"), which sets a high hurdle for habeas relief. The
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim
(1) 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; or
(2) 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.
28 U.S.C. § 2254(d). 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). A state
court's decision is an unreasonable application of clearly
established Supreme Court law "if the state court identifies the
correct governing legal rule from this Court's cases but
unreasonably applies it to the facts of a particular prisoner's
case" or "if the state court either unreasonably extends a legal principle from our precedent
to a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it should
apply." Id. 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) ("The state court decision is
reasonable if it is minimally consistent with the facts and
circumstances of the case.").
Before reviewing the Illinois courts' decisions, however, the
court must determine whether Cisero fairly presented his federal
claims to the state courts. Section 2254 requires a habeas
petitioner to exhaust the remedies available in state court prior
to pursuing federal habeas relief. See
28 U.S.C. § 2254(b)(1)(A). Any claim not presented to the state's highest
court is deemed procedurally defaulted. See O'Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999) (indicating that "a
petition for discretionary review in Illinois' Supreme Court is a
normal, simple, and established part of the State's appellate
In addition to exhausting the remedies available in state
court, a habeas petitioner is procedurally barred from raising
claims in a federal habeas court that he did not raise in the
state court proceedings. See O'Sullivan, 526 U.S. at 848
(holding that a petitioner's failure to present three claims to
the Illinois Supreme Court for discretionary review resulted in a
procedural default of those claims). Fair presentment of a
constitutional claim requires a habeas petitioner to present both
the operative facts and the controlling legal principles to the
state court before bringing the claims to a federal habeas court.
Cf. Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999)
(discussing exhaustion of claim) (citing Picard v. Connor,
404 U.S. 270, 277 (1971)). Thus, a habeas petitioner procedurally defaults, or waives, any claim
raised for the first time in federal court.
Also, federal habeas courts cannot review claims that the state
court has disposed of on state law grounds. See Stewart v.
Smith, 536 U.S. 846, 860 (2002); see also Lambrix v.
Singletary, 520 U.S. 518, 523-24 (1997) (noting that where "the
state law determination is sufficient to sustain the decree, any
opinion . . . on the federal question would be purely advisory.")
(citing Herb v. Pitcairn, 324 U.S. 117, 125-26 (1945)). Put
another way, federal habeas relief is not available if the state
court decision rests on state law that "is independent of the
federal question and adequate to support the judgment." See
Coleman v. Thompson, 501 U.S. 722, 729 (1991). For example,
waiver under state law is an independent and adequate state law
ground for dismissal that can preclude federal habeas relief.
Thus, when a state court determines that a habeas petitioner
waives a claim in state court, that waiver is an independent and
adequate state law determination that bars federal habeas relief.
See Harris v. Reed, 489 U.S. 255, 258 (1989) (citing
Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977)); see also
Wright v. Walls, 288 F.3d 937, 947 (7th Cir. 2002) (waiver is
an independent and adequate state ground in Illinois); Patrasso
v. Nelson, 121 F.3d 297, 301-02 (7th Cir. 1997) (comparing
waiver and res judicata under Illinois law, and the consequences
of each on subsequent federal habeas review). However, for waiver
to bar federal habeas review, the last state court to consider
the question must have "actually relied on procedural default as
the basis for its decision." Braun v. Powell, 227 F.3d 908, 912
(7th Cir. 2000). If that is not so, the merits of the issue are
preserved for federal habeas review. See id.
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. See Edwards v. Carpenter, 529 U.S. 446, 450-52
(2000); Coleman, 501 U.S. at 750; Anderson v. Cowen,
227 F.3d 893, 899 (7th Cir. 2000).
B. Cisero's Arguments
1. Prosecutorial Misconduct
With regard to the prosecutorial misconduct claim, Cisero
argues that "[r]epeated improper comments by the prosecutor, in
closing arguments to the jury, denied [him] a fair trial."
Cisero's Pet. for Writ of Habeas Corpus, Part III(1)(A).
Specifically, Cisero claims that the following comments by the
prosecutor deprived him of his right to a fair trial: (1) "Fred's
been sitting here during these last two weeks meekly in the
courtroom."; (2) "Well, the defendant is presumed to be innocent.
They [the defense] presume all of you to be naive and gullible.";
(3) "They [the defense] don't want you to think about the
evidence."; (4) "We will ask you to put a major drug dealer out
of business."; and (5) references to Cisero's attorney as a
"skilled lawyer" and a "fancy lawyer". Cisero's Pet. for Writ of
Habeas Corpus, Part III(1)(A).
The Illinois Appellate Court reviewed Cisero's claims of
prosecutorial misconduct, finding that, under Illinois law, he
had waived any challenge to the majority of the alleged improper
comments by failing to include them in his post-trial motion.
See People v. Cisero, No. 98-1830, slip op. at 24 (citing
People v. Herrett, 137 Ill.2d 195, 209, 561 N.E.2d 1 (1990);
People v. Enoch, 122 Ill.2d 176, 185-86, 522 N.E.2d 1124
(1989)). Because waiver is an independent and adequate state
ground and Cisero offers no explanation for this procedural
default, the court cannot review these specific claims of
prosecutorial misconduct. See Stewart, 536 U.S. at 860;
Wright, 288 F.3d at 947 (waiver is an independent and adequate
state ground in Illinois).
The Illinois Appellate Court found that only two claims of
prosecutorial misconduct were preserved for review. The first statement was the prosecution's
remark, in opening statements, that "You [the jury] are now going
to hear from the defendant's attorney who is a very skilled
lawyer." See People v. Cisero, No. 98-1830, slip op. at 25.
The second statement was the prosecution's remark, in closing
arguments, that "E.K. [the informant who testified against
Cisero] had to cooperate because he could not afford an expensive
attorney like defendant." See id. The Illinois Appellate
Court analogized these comments to People v. Everette,
581 N.E.2d 109 (Ill.App. Ct. 1991), in which the prosecution
referred to the defendant's attorney as a "hired gun." See
id. at 28. The Illinois Appellate Court indicated that the
comments directed against Cisero's attorney did not rise to level
of the comments in Everette; however, the court found that
these two statements were improper, but "based on the
overwhelming evidence against defendant, the comments do not
require a new trial." Id. at 28. Proceeding, the court stated:
"We therefore hold that the two complained-of comments were not
so inflammatory that they prejudiced defendant or denied him a
fair trial." Id.
These two claims of prosecutorial misconduct are preserved for
habeas review by this court. The leading United States Supreme
Court case on the issue of improper prosecutorial comments during
trial is Darden v. Wainwright, 477 U.S. 168 (1986). The Seventh
Circuit, in adhering to Darden, follows a two-step course when
deciding whether prosecutorial misconduct, including improper
comments to the jury at trial, is so egregious that it requires a
new trial as a matter of constitutional law. See Whitehead v.
Cowan, 263 F.3d 708, 728 (7th Cir. 2001). First, the court must
look at the comments in isolation to determine if they were
improper. See id. If they are proper, the analysis ends.
See id. If the comments appear improper, the court must then
examine the comments in light of the record as a whole to
determine whether they deprived the defendant of a fair trial.
See id. (citing United States v. Whitaker, 127 F.3d 595,
606 (7th Cir. 1997)). To make this determination, a court must consider six factors set forth
in Darden: "(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." Id.
(citing Howard v. Gramley, 225 F.3d 784, 793 (7th Cir. 2000)).
The Illinois Appellate Court adhered to the two-step framework
set forth in Darden. As to the first step of the Darden
analysis, the Illinois Appellate Court indicated that the
comments did not rise to the level of error reflected in other
cases, but rather presumed that the comments were improper. See
People v. Cisero, No. 98-1830, slip op. at 28. As to the second
step of the Darden analysis, the court did not recite with
precision the factors set forth in Darden, but rather focused
on the Darden factor that the Seventh Circuit has deemed to be
the most important the weight of evidence against the
defendant. See, e.g., Howard, 225 F.3d at 793. As the
Seventh Circuit has stated: "`[S]trong evidence of guilt
eliminates any lingering doubt that the prosecutor's remarks
unfairly prejudiced the jury's deliberations.'" Rodriguez v.
Peters, 63 F.3d 546, 558 (7th Cir. 1995) (quoting United States
v. Gonzalez, 933 F.2d 417, 431-32 (7th Cir. 1991)). As indicated
by the Illinois Appellate Court, "[t]he record reveals that there
was considerable evidence of defendant's involvement in the drug
transaction at issue including audio and visual tapes of
defendant, the testimony of the investigating officers,
defendant's fingerprints, and his own statements regarding his
involvement." See People v. Cisero, No. 98-1830, slip op. at
26. The Illinois Appellate Court concluded its analysis of this
issue stating that because "there was considerable evidence of
defendant's involvement in the drug transaction in June 1995
. . . [i]t is doubtful that the jury verdict would have been
different even if these complained-of comments had not been made
to the jury." Id. at 28. Based on the foregoing analysis, the court cannot
conclude that the Illinois Appellate 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." 28 U.S.C. § 2254(d); see also Williams,
529 U.S. at 405.
In sum, Cisero fails to address the Illinois Appellate Court's
decision, and thus fails in his burden of establishing that its
decision on his prosecutorial misconduct claim was either
"contrary to" or "involved an unreasonable application" of
clearly established United States Supreme Court precedent. See
Lechner v. Frank, 341 F.3d 635, 638 (7th Cir. 2003); see
also Woodford v. Visciotti, 537 U.S. 19, 24-25 (2003)
(petitioner has the burden of establishing that the state court
applied facts in an objectively unreasonable manner). Therefore,
the court denies Cisero's prosecutorial misconduct claim.
2. Brady Violation
With regard to the Brady violation claim, Cisero argues that
the State failed to timely disclose the fact that Chinwah, "who
testified at trial, was not going to be prosecuted for an
unrelated Federal investigation. . . ." Cisero's Pet. for Writ of
Habeas Corpus, Part III(1)(B). Specifically, on the day of
Cisero's trial, prior to voir dire, the prosecution informed
the court and Cisero that the United States Attorney had elected
not to prosecute Chinwah, who testified against Cisero at trial.
Cisero did not raise his claim of a Brady violation in his
petition for leave to appeal to the Illinois Supreme Court, and
as a result that claim is procedurally defaulted. See
O'Sullivan, 526 U.S. at 848 (holding that a petitioner's
failure to present three claims to the Illinois Supreme Court for
discretionary review resulted in a procedural default of those
claims). Further, Cisero does not attempt to establish cause and
prejudice for failing to raise this claim in the state court so
as to allow the court to review this claim. See Edwards, 529 U.S. at
450-52. As such, the court is prohibited from considering the
merits of Cisero's claim unless he can demonstrate a sufficient
probability that our failure to review his federal claim will
result in a fundamental miscarriage of justice. See id.;
see also Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003)
("The fundamental-miscarriage-of-justice exception applies only
in the `extremely rare' and `extraordinary case' where the
petitioner is actually innocent of the crime for which he is
imprisoned.") (quoting Schlup v. Delo, 513 U.S. 298 (1995)).
Similarly, Cisero makes no claim that failure to review his
federal claim will result in a fundamental miscarriage of
justice. Therefore, the court is prohibited from considering the
merits of Cisero's Brady violation claim.
For the foregoing reasons, Fred Cisero's petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is denied.
IT IS SO ORDERED.
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