The opinion of the court was delivered by: CHARLES NORGLE, District Judge
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 June 30, 2000) (unpublished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.
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 ...