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Morales v. McCann

February 25, 2010


The opinion of the court was delivered by: Matthew F. Kennelly, District Judge


In May 1996, a Cook County jury convicted Efrain Morales of murder, two counts of attempted murder, and two counts of aggravated battery with a firearm, in connection with a shooting that took place in October 1994. The trial judge later sentenced Morales to sixty years in prison for murder and a consecutive term of thirty years for attempted murder.

Morales has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his second amended petition, filed by appointed counsel, Morales contends that his trial counsel rendered ineffective assistance; he was convicted on the basis of perjured testimony; and the imposition of consecutive sentences violated due process.

The Court held an evidentiary hearing on the ineffective assistance claim, having ruled that Morales alleged facts that, if shown, would entitle him to relief; the fact-finding process in the state court in connection with his post-conviction petitions denied him a full and fair hearing to explore the basis for the claim; and this was not attributable to any fault or lack of diligence by Morales. See generally Richardson v. Briley, 401 F.3d 794, 800 (7th Cir. 2005); United States ex rel. Hampton v. Leibach, 347 F.3d 219, 234-35 (7th Cir. 2003).

For the reasons stated below, the Court denies Morales' petition.


On the night of October 24, 1994, Billy Bradford, Jose Nevarro, and Charles Crawford were repairing Bradford's car outside his home on Willard Court, on the near northwest side of Chicago. Two men wearing jackets with hoods came from an alley across the street from Bradford's home and started shooting. Bradford was killed, and Nevarro and Crawford were wounded. Four people were charged in connection with the shooting: Walter Caldera, Mario Gonzalez, Michelle Jacques, and Morales.

1. State Court Trial

Morales retained attorney Robert Callahan to represent him. Judge John Morrissey presided over the case, which was tried on May 14-17, 1996. On the day the case was to go to trial, Gonzalez pled guilty and, in exchange, received a sentence of forty-four years. In pleading guilty, Gonzalez admitted under oath to a statement of facts that identified him and Morales as the two shooters. Caldera and Jacques opted for a bench trial; Morales was tried before a jury.

Bradford's widow Dorothy Bradford testified that she heard shots from inside her home around 10:30 to 10:40 p.m. on October 24, 1994. She went outside and found her husband lying dead on the ground. She testified that down the block, she saw a car painted with gray primer with people inside who appeared to be looking at the shooting scene. She had seen the car in the neighborhood before, driven by people she knew as Mario, "Shotgun," and Palmer. She identified Morales as Shotgun. She also testified that she had seen Gonzalez and Jacques in the same car a few days earlier.

Charles Crawford testified that he had moved to Oklahoma from Chicago a number of years before the shooting. He had been a member of a street gang called the Satan Disciples. On the day of the shooting, he was in Chicago visiting his son, who lived across the street from Bradford. That night, he was helping Bradford and Nevarro fix Bradford's car, which was parked in front of his house under a street light.

At some point, Bradford and Nevarro went inside to get some parts. While they were inside, Crawford saw a white Chevrolet and another Chevrolet painted with gray primer drive north on Willard Court, with three or four people inside each car. Crawford testified that he recognized Gonzalez in the gray car. Gonzalez displayed a series of gang signs indicating that he was "folks" -- a group of gangs that included the Satan Disciples and the Milwaukee Kings -- but would also kill other "folks." Crawford was afraid but felt more comfortable when Bradford and Nevarro returned.

After they started working on the car again, Crawford heard Nevarro yell, "look out," and then saw two men he identified as Gonzalez and Morales coming out of the alley across the street. They were wearing black hooded jackets with the hoods up, but he could see their faces. Crawford said he had seen Gonzalez earlier that evening and had seen Morales several times before, though he did not know Morales' name at the time. The two men started shooting, Gonzalez with a nine millimeter handgun and Morales with a chrome revolver. Crawford then saw the white Chevrolet pull up, and someone yelled "hurry up." He said that the two shooters then ran west down an alley adjacent to Bradford's home.

Crawford testified that when the police arrived, he gave them a false name -- Charles Vega -- because he was scared. He was taken to a hospital for treatment for a gunshot wound to his leg. Police officers came to the hospital and showed him an array of photographs, from which he identified Gonzalez as one of the shooters. Crawford said he would talk to the police further after he got out of the hospital, but instead he returned to Oklahoma. He testified that he did not return to Chicago until the morning of trial. That morning, police officers showed him another array of photographs, and he identified Morales as the other shooter.

Morales' counsel cross-examined Crawford to attempt to cast doubt on his ability to see the shooters given where he was situated, the brief opportunity he had to see their faces, the fact that they were shooting at him, and the fact that he was trying to avoid being shot. Crawford admitted that at the scene of the shooting, he described the shooters only as Hispanic men wearing black hooded jackets. He conceded that the first time he had identified Morales was the morning of the trial. He also admitted that he had not given his real name to law enforcement until a prosecutor contacted him several months before the trial.

Jose Nevarro testified that he had been a member of the Satan Disciples street gang but had quit the gang in 1991 or 1992. He admitted that he had pled guilty to narcotics crimes in 1989, 1993, and 1994. He said the area where the shooting occurred was controlled by the Satan Disciples but bordered on an area controlled by the Milwaukee Kings. He said that both gangs were "folks," meaning they were aligned gangs, but that there were conflicts between them at the time of the shooting. He said that Morales and Caldera were Milwaukee Kings and that Jacques was a Milwaukee Queen.

Nevarro testified that he, Bradford, and Crawford were fixing Bradford's car. He and Bradford went inside to get some parts and then returned and continued working on the car. Nevarro saw a noise, looked in the direction of the noise, and saw two men approaching. He identified the two men as Gonzalez and Morales. Gonzalez was carrying a black automatic handgun, and Morales was carrying a chrome revolver. Nevarro also saw a third man who stayed in the alley across the street. Nevarro yelled, "watch out," and the two men started shooting. After the shooting stopped, Nevarro saw a "gray jacked up kind of car" driving down Huron Street. He testified that he had seen Milwaukee Kings drive the car before, usually Gonzalez, Morales, or a man named Adrian.

Nevarro testified that he spoke to the police briefly at the scene and told them he had seen a gray car in the neighborhood. He was taken to a hospital for treatment for a gunshot wound to his leg. While at the hospital, two detectives came and asked him to view a lineup. He did so and identified Gonzalez as one of the shooters. He also told the detectives that "Shotgun," whom he identified as Morales, was the other shooter. He identified Morales from an array of photographs in the early morning hours of October 25.

On cross-examination, Nevarro testified that immediately after the shooting, he did not want the police to find the shooters (on redirect, he said he had wanted to "take care of them" himself), so he just told them he had seen the car of a Milwaukee King named Adrian in the area. He said that it was only after he identified Gonzalez in the lineup that he told police the shooters were three Milwaukee Kings in black hooded jackets. Nevarro admitted that when the shooting started, he was partly under the car fixing it, lying on his stomach.

Chicago police officer Joe Moran testified regarding, among other things, photographs of the crime scene and shell casings and bullet fragments found there. He testified that it appeared two weapons had been used.

Chicago police officer Carlos Ramirez testified that around the time of the shooting, there was a dispute between the Milwaukee Kings and Satan Disciples involving a member of the latter gang who had switched his affiliation to the Milwaukee Kings. Ramirez testified that he had seen a gray-primered Chevrolet in the area of the shooting three times about a week earlier, driven (respectively) by Adrian Renteria, Julio Mercado, and Gonzalez -- the latter with Caldera and Jacques in the car. After the shooting, an alert went out that a gray car was potentially involved in the shooting. He and his partner located the car and pulled it over. Gonzalez was driving, with Jacques and Caldera in the car. Ramirez later found a nine millimeter handgun when conducting a search of the home where Gonzalez and Jacques lived. James Treacy, a firearms technician working in the Chicago Police Department crime lab, testified that the gun found at the Gonzalez-Jacques home had fired some of the cartridges recovered at the shooting scene but that a second gun had fired the others.

Chicago police detective George Tracy testified that by the time he arrived at the scene of the shooting, all the victims had been taken to hospitals. He stated that there was "excellent" lighting at the shooting scene. Tracy said that after he received information that another police officer had stopped a gray primered Oldsmobile in the area, he returned to Area Four police headquarters and met with the occupants of the car, Caldera, Gonzalez, and Jacques. He then spoke to Nevarro at the hospital and asked him to try to identify one of the shooters in a lineup. He arranged for another officer to bring Nevarro to Area Four headquarters. He then visited Crawford at a different hospital. He showed Crawford a photographic array, and Crawford identified Gonzalez as one of the shooters. He made arrangements for Crawford to come to Area Four, but Crawford never came.

Tracy testified that he then returned to Area Four and took statements from Caldera, Gonzalez, and Jacques. He then traveled to the homes of Morales and someone named Palmer but could not find them. He again returned to Area Four, and at 4:15 a.m. he conducted a lineup, from which Nevarro identified Gonzalez as one of the shooters. He also showed Nevarro an array of photographs, from which Nevarro identified Morales as the other shooter. Tracy testified that on the first day of the trial, he and his partner showed Crawford a photo array from which Crawford identified Morales as one of the shooters.

On cross-examination, Tracy confirmed that Nevarro did not identify Morales until he came to Area Four headquarters and that Crawford did not identify Morales until the morning of trial, about one and one-half years after the shooting. Tracy testified that only he and his partner were present when the photo array was shown to Crawford. On redirect, Tracy said he had been careful to ensure that Crawford did not see Nevarro's signature on the back of Morales' photo.

On May 16, 1996, Katrina Scimone ("Katrina") testified that she formerly lived at the corner of Huron and Bishop in Chicago. She was familiar with the Milwaukee Kings and, several years earlier, had been a Milwaukee Queen for one week. Her father forced her to drop out of the gang, but she remained friendly with Milwaukee Kings and Queens.

In October 1994, Katrina testified, she was friendly with Morales, though they were not dating. She was living in the suburbs at the time. She testified that she was not with Morales on October 24. She stated that Morales called her on October 28, and that she called him back from her sister's house that afternoon. Morales asked her to meet, but she told him she did not have a ride. Morales then told her that there had been a shooting and that a man had been shot. He said that he was there and was involved with the shooting. He asked Katrina to tell the police that she was his fiancee and that she was with him on October 24. She testified that Morales told her to say that she and her father had picked him up at 6:30 or 7:00 p.m. and dropped him back off at 1:00 a.m. He also had her describe the furniture in her house and how it was arranged.

Around 9:00 or 10:00 that night, Katrina testified, her father took her to Morales' sister's house on Haddon Street in Chicago. She said that Morales told her that he and the gang were involved in the shooting. He again asked her to tell police that she was his fiancee and had been with him on the night of the shooting. Katrina testified that she agreed to lie for Morales.

Katrina testified that on November 15, a police detective and a prosecutor visited her. She told them that Morales asked her to lie for him. On November 19, she said, Morales called her and said he was angry that she had not given the agreed-upon alibi. He then asked her to connect a three-way call with a man named Ricky, whom she described as the head of the Milwaukee Kings. She overheard Morales tell Ricky's grandmother to tell Ricky to talk to the Satan Disciples and get them to tell Nevarro ("Little Man") not to sign a statement against Morales. Katrina said that Morales called her several more times to express his anger that she had refused to lie for him.

On cross-examination, Katrina denied that she had been threatened by the prosecution into testifying. Callahan asked how she had gotten to court, and she said that detectives had picked her up. Katrina reiterated on cross-examination that Morales had told her he was present at the shooting and that he was one of the shooters. Callahan attempted to impeach Katrina's implication that Morales had never been to her house by reading her grand jury testimony, in which she had stated that Morales had been to her house a week before her birthday on October 13. Katrina replied that Morales had been to her house in the city, not her house in the suburbs.

On redirect, Katrina stated that she was not staying at home during the trial because she had gotten threatening phone calls. She testified that as a result, police detectives had picked her up to bring her to court. Judge Morrissey sua sponte struck her testimony about threats and gave the jury a curative instruction.

Officer Johnny Andreani was called by the defense to testify. He stated that when he interviewed Nevarro at the scene of the shooting, Nevarro said only that the shooters were three Hispanic males in black hooded jackets and that a car that belonged to a Milwaukee King named Adrian was in the area at the time of the shooting. Detective Karen Hansen, also called by the defense, testified that she interviewed Nevarro at Area Four headquarters. He stated only that he saw three Hispanic males come out of the alley and that two of them had guns.

Defense attorney Callahan presented no other witnesses. Outside the jury's presence, Judge Morrissey advised Morales of his right to testify, but Morales chose not to invoke that right.

In his closing argument, Callahan argued that the prosecution had not proven that Morales was the second shooter. He attacked the testimony of Crawford, Nevarro, and Katrina Scimone. He argued that Morales had not really confessed his involvement to Katrina. He also argued that Morales had visited Katrina's home in the suburbs before, and thus she would not have had to describe it to him if he wanted to concoct a false alibi. Callahan argued that Crawford's testimony was unreliable because he had given the police a phony name and that his claimed justification -- fear -- was inconsistent with his other actions, including identifying Gonzalez from the photo array. Callahan also questioned Crawford's ability to identify Morales for the first time on the day of trial given that he had not identified him at the time of the shooting. Callahan also attacked Nevarro's testimony on the ground that he had not identified Morales when interviewed at the shooting scene. He said that Nevarro was blaming Morales to try to get back at the Milwaukee Kings.

In both its closing argument and rebuttal, the prosecution emphasized the importance of Katrina Scimone's testimony. In closing argument, the prosecutor argued that the evidence showed not only that Morales had asked Katrina to make up a false alibi, but also that he had, twice, admitted to her that he was involved in the shooting. See May 17, 1996 Tr. D38 (Morales told Katrina "we were out there shooting and a man got shot") & D39 ("We were out there shooting and then a man got shot."). In rebuttal, the prosecutor spent more time discussing Katrina's testimony than that of any other witness. She referred to Katrina's testimony as "compelling." Id. D86. The prosecutor said, "this is what he told her: Katrina you have to help me. We were all shooting and a man got shot. Gee, how does he know that. How does he know a man got shot? How does he know the perfect time as he is sitting [sic] at this alibi? We were all shooting." Id. The prosecutor repeatedly emphasized that Morales had squarely admitted to Katrina his involvement in the shooting: "She kept answering he said he was shooting, too. He said we. He said he was shooting, too. She said that. He said we were all shooting. . . . We were all shooting means he was shooting as well." Id. D86-87. The prosecutor stated that "I know that he did this, ladies and gentlemen. He admitted to Katrina that he shot Mr. Bradford. He said a man got shot, we were all shooting." Id. D88.

The judge instructed the jury and sent them to deliberate. Within a few minutes, Callahan pointed out that the judge had failed to read the standard instructions regarding the presumption of innocence and the prosecution's burden to prove guilt beyond a reasonable doubt. The judge recalled the jury and read the instruction. This was about four minutes after the jury had retired to deliberate. The judge conducted a short inquiry of the deputy sheriff assigned to the jury. The deputy stated that he was collecting the jurors' belongings when they were called back into court and that they had not begun to look at the evidence or discuss the case.

The jury convicted Morales of first degree murder for the death of Bradford and attempted first degree murder and aggravated battery with a firearm for the shooting of Crawford and Nevarro.*fn1 At sentencing, the judge stated that "the aggravation here is unbelievable." He imposed a sixty year prison term for murder and a thirty year term for attempted murder. He concluded that Morales had inflicted severe bodily injury and, as a result, made the terms consecutive.

2. Direct Appeal

Morales retained attorney Irwin Frazin to represent him on appeal. Frazin argued that the judge had erred in allowing the jury to retire to deliberate without giving an instruction on the burden of proof and the presumption of innocence. He also argued that attorney Callahan had rendered ineffective assistance of counsel because, among other things, he failed to object to the admission of Katrina's prior consistent statements to law enforcement about Morales' attempt to get her to fabricate an alibi.

The Illinois Appellate Court affirmed Morales' conviction. People v. Morales, No. 1-96-2582, slip op. (Ill. App. Nov. 5, 1997) ("Morales I"). On the claim of ineffective assistance, the court did not directly address whether Callahan had performed deficiently but rather held that any error had not prejudiced Morales. The court stated that the evidence was "not closely balanced" and that the testimony that had been "bolstered" by the admission of the prior consistent statement "was not critical to a finding of defendant's guilt. Two eyewitnesses identified defendant, and the physical evidence supported the eyewitness testimony." Id. at 11. The court stated that the bolstered testimony "was directed to the defendant's consciousness of guilt, not an eyewitness account of the crime. The failure to object did not critically impact on the determination of defendant's guilt." Id.

The appellate court denied Morales' petition for rehearing on January 22, 1998. Morales did not file a petition for leave to appeal to the Illinois Supreme Court.

3. First Post-Conviction Petition

Attorney Frazin filed a post-conviction petition on Morales' behalf on March 27, 1998 and filed an amended petition later that year. In the initial petition, Morales argued that Callahan had rendered ineffective assistance by failing to investigate the case properly. He argued that Callahan should have obtained gunshot residue tests performed on the co-defendants, medical records for the victims, and telephone records for Katrina and Morales. He also argued that Callahan should have tried to contact additional witnesses, including Katrina's father Thomas Scimone ("Thomas") and her younger sisters, who Morales said were with him at the time of the shooting; Laurie Benbeneck, a friend of Katrina's who Morales said accompanied him to her home on October 28; and John Montalvo and Julio Mercado, who gave the police information about the shooting and who may have been involved. Morales also argued that Callahan should have taken more systematic notes throughout his representation of Morales.

In the amended petition, Morales added further contentions to support his claim that he had been denied effective assistance of counsel. He argued that Callahan should have had a "prover" with him when he interviewed Katrina and that because he did not, he was unable to impeach Katrina with a statement she had made to him (Callahan) that she did not actually know whether she was with Morales on the night of the shooting or not. Morales also argued that Callahan should have interviewed Katrina's father Thomas and called him testify as an alibi witness.

In support of these arguments, Morales submitted two affidavits from Katrina dated May 19 and May 29, 1998 and an affidavit from Thomas dated May 31, 1998. In her affidavits, Katrina said that she did not remember whether she was with Morales on the night of the shooting. She said she had told Callahan this when he interviewed her before the trial. She said she had told the police she was not with Morales because she was scared and did not know what to say. In his affidavit, Thomas said he remembered being with Morales on the night of the shooting. He and Katrina picked Morales up around 6:00 p.m. that evening, took him to their house, and drove him back to Chicago around midnight. He said that while at their house, Morales sold him an "eight-ball" of cocaine, helped Thomas cook it into crack cocaine, and then smoked marijuana while Thomas smoked the crack. Thomas also stated that on the first day of Morales' trial, he spoke with Callahan and said he had been with Morales on the night of the shooting. Callahan said he would get back to Thomas if he was needed to testify but then never called Thomas back.

The trial judge summarily denied Morales' petition in June 1998. He stated that "the performance of Mr. Callahan was not remiss to the point contemplated by Strictland [sic] versus Washington. As far as I am concerned, there's no demonstration in the defendant / petitioner's petition that the result somehow would be different." The judge stated that "[t]he young lady did testify for Mr. Morales [sic], but certainly the case didn't rise or fall on her testimony. The evidence was sufficient to prove guilty [sic] beyond a reasonable doubt." June 18, 1998 Tr. 9. The judge made no comments directly addressing trial counsel's claimed failure to investigate and call Thomas Scimone.

The Illinois Appellate Court affirmed the denial of Morales' post-conviction petition. People v. Morales, No. 1-98-2749, slip op. (Ill. App. Oct. 20, 1999) ("Morales II"). The court ruled that the trial judge had not erred in denying the petition without holding an evidentiary hearing.

With respect to the claim of ineffective assistance, the court did not address whether Callahan had acted deficiently in failing to have a "prover" present when he interviewed Katrina. Rather, the court went directly to the issue of prejudice. It repeated the determination on direct appeal that Katrina was merely a corroborating witness and that her testimony "did not so prejudice defendant that he was deprived of a fair trial." Id. at 9. The court concluded that Morales had not shown a reasonable probability that the outcome of the trial would have been different had Callahan impeached Katrina. Id.

The court also ruled that Callahan did not act unreasonably in failing to call Thomas because counsel had an "apparent strategic reason": Thomas's statement that he and Morales were conducting a drug transaction at the time of the shooting. Id. at 10. The court did not address the issue of prejudice with regard to Callahan's failure to call Thomas as a witness.

The court denied Morales' petition for rehearing, and the Illinois Supreme Court denied his pro se petition for leave to appeal. People v. Morales, No. 88702 (Ill. S.Ct. Jan. 10, 1999).

4. Federal Habeas Corpus Petition - Round One

Morales filed a pro se federal habeas corpus petition on May 1, 2000. In response, the state argued that Morales had procedurally defaulted certain aspects of his claim of ineffective assistance. Morales asked for a stay so that he could file a second post-conviction petition. The Court denied the motion, concluding that it would be more appropriate to develop a more complete record and consider the propriety of a stay while addressing the procedural default issue. Morales v. Cowan, No. 00 C 2656, 2000 WL 1898584, at *2 (N.D. Ill. Dec. 20, 2000).

The Court then appointed counsel. Around the same time, Morales filed a second post-conviction petition, which the Court will discuss below. Appointed counsel filed an amended habeas corpus petition. That petition asserted some of the same issues that Morales had raised in the second post-conviction petition. The Court concluded that the proper procedural course was to dismiss the amended petition without prejudice due to failure to exhaust certain of the claims, giving Morales permission to reinstate the petition once he had exhausted state court remedies. Morales v. Cowan, No. 00 C 2656, Order of Jan. 17, 2002.

5. Second Post-Conviction Petition

As the Court has noted, Morales, acting pro se, filed a second post-conviction petition in early 2001. He asserted eleven grounds for overturning his conviction: (1) the trial judge improperly dismissed his first petition; (2) his post-conviction counsel rendered ineffective assistance; (3) the prosecution withheld evidence favorable to him; (4) the judge improperly imposed consecutive sentences in violation of Apprendi v. New Jersey; (5) the judge imposed a disparately harsh sentence; (6) the prosecution presented perjured testimony at trial; (7) newly discovered evidence proved his innocence; (8) the Crawford photo array was impermissibly suggestive; (9) trial counsel rendered ineffective assistance; (10) appellate counsel rendered ineffective assistance on direct appeal; and (11) the evidence was insufficient to convict.

Morales submitted several supporting affidavits, most of which concerned his claims that he was innocent, perjured testimony was used to convict him, and his trial counsel was ineffective. Three Illinois prison inmates, Melvin Boyd, Albert Guerra, and Oswaldo Arroyo, submitted affidavits stating that Nevarro told them he had falsely implicated Morales in the shooting. Mario Gonzalez submitted an affidavit stating that Robert Moncada was the other shooter, not Morales. Desire Aponte submitted an affidavit stating that Moncada told her he was the other shooter. Juan Carasquillo, another prison inmate and a friend of Morales, submitted an affidavit stating that he had not spoken with Katrina or anyone else about Morales' case in October 1994 (the Court assumes this was the "Ricky" referenced in Katrina's testimony at the criminal trial). Morales also resubmitted the affidavits of Katrina and Thomas Scimone that had accompanied his first post-conviction petition.

Judge Evelyn Clay dismissed the petition, concluding it was frivolous and patently without merit. People v. Morales, No. 94 CR 29937, slip op. (Cir. Ct. of Cook Cty. May 30, 2001). She concluded that the petition was an improper second post-conviction petition. Id. at 3. She also concluded that several of Morales' claims (identified above as claims 3, 5, 6, 8, 9, 10, and 11) could have been raised on direct appeal or his first post-conviction petition and thus were barred by principles of claim preclusion and waiver. Id. The judge also found that the petition was untimely. Id. at 3-4. The judge went on to address claims 2, 4, and 7 on the merits and found them deficient. Id. at 4-6.

The Court notes that the state court judge made a factual error in discussing the affidavits of Katrina and Thomas Scimone. The judge wrote that petitioner asserts that the affidavits of Katrina Scimone and Thomas Scimone substantiate his alibi defense and show that he was with them at the time the instant crime occurred. Petitioner, however, drastically misrepresents the content of their affidavits. In fact, both Katrina and Thomas, in affidavits signed on May 19, 1998 and May 29, 1998, respectively indicate that they do not know if they were with petitioner at the date and time in question. Interestingly enough, two days after signing his affidavit, Thomas changes his mind and indicates that petitioner was with him on the date in question. This information is contradictory and certainly insufficient to exonerate petitioner or to change the result of his trial.

Id. at 6. The judge erroneously attributed the May 29 affidavit to Thomas Scimone. In fact, Katrina (not Thomas) submitted two affidavits, dated May 19 and May 29, and in both of them, she said she did not know whether she was with Morales on the night of the shooting. Thomas submitted only one affidavit, dated May 31, in which he stated that he was with Morales on the night of the shooting. Thus the state court judge had no basis to find that Thomas had suddenly changed his version of the events or that Morales had misrepresented the content of the affidavits.

Morales filed a motion for reconsideration, which the state court judge denied. He then filed an appeal, in which he was represented by an assistant public defender. On appeal, Morales argued that the trial court erred in summarily dismissing the petition without conducting an evidentiary hearing or appointing counsel to investigate whether his counsel on direct appeal had rendered ineffective assistance. Specifically, he argued that appellate counsel was deficient in failing to raise on direct appeal the claims that the trial judge had found barred by waiver in the second post-conviction petition. Morales also argued that the trial judge had erred by refusing to order a new trial in light of the fact that the new evidence showed that Moncada, not Morales, was the second shooter.

The Illinois Appellate Court affirmed the dismissal of the petition. People v. Morales, 339 Ill. App. 3d 554, 791 N.E.2d 1122 (2003) ("Morales III"). It stated that Morales had "abandoned" his claims from the second petition other than the two arguments noted above. Id. at 560, 791 N.E.2d at 1127-28. The court acknowledged that Morales could raise in a second post-conviction petition claims of ineffective assistance of appellate counsel and actual innocence based on new evidence, but it found the claims lacked merit. Id. at 560, 791 N.E.2d at 1128. The court said that untimeliness, claim preclusion, and waiver were insufficient to justify summary dismissal of the petition. Id. at 560-61, 791 N.E.2d at 1128. It stated, however, that the dismissal was "properly based on [the trial court's] substantive finding that the claims were frivolous or patently without merit . . . ." Id. at 561, 791 N.E.2d at 1128-29.

The court went on to reject, on the merits, Morales' claim that his attorney on the direct appeal of his case was ineffective for failing to assert claims of disparate sentencing and ineffective assistance of appellate counsel based on trial counsel's failure to challenge the photo identification by Crawford and failure to interview the Scimones and Gonzalez. On the latter point, the court stated that it was not unreasonable for appellate counsel to forgo pleading that trial counsel was ineffective for failure to interview the Scimones and Gonzales [sic]. Trial counsel had no reason to believe in 1996 that Katrina would equivocate in 1998 or Gonzales would change his statement in 1998. As to Thomas, defendant has not shown prejudice. There is no ground for believing that, had trial counsel interviewed Thomas and presented his testimony about "cooking up" cocaine with defendant on the night of the shootings, defendant would have been acquitted because of a credible alibi.

Id. at 564, 791 N.E.2d at 1131.

Finally, the appellate court rejected Morales' claim of actual innocence based on new evidence. It concluded that the affidavits of Aponte, Boyd, Guerra, and Arroyo contained inadmissible hearsay and that the affidavits of Gonzalez and Carasquillo were unpersuasive. It pointed out that the signatures of Gonzalez on his written confession and his affidavit were dissimilar, and it also stated that the affiants "were not credible and their statements are not sufficiently conclusive to support defendant's claim of actual innocence." Id. at 565, 791 N.E.2d at 1132.

6. Federal Habeas Corpus Petition - Round Two

After the Illinois Supreme Court denied Morales' petition for leave to appeal in 2003, Morales moved to reinstate his federal habeas corpus petition. The Court granted the motion and appointed counsel, who filed a second amended petition on Morales' behalf.

The state argued that Morales' petition was time-barred because the time the original petition had been pending counted against the one-year limitation period for federal habeas corpus petitions. The Court rejected this argument, finding that Morales had relied on the Court's statement at the time that the dismissal would not harm his ability to pursue the petition. The Court also converted the earlier dismissal to a stay, nunc pro tunc, eliminating the potential statute of limitations issue. See Order of Jan. 3, 2005.

On several dates from October 2005 through November 2006, the Court conducted an evidentiary hearing on Morales' claim of ineffective assistance of counsel. The hearing extended over that period partly due to significant difficulty in securing the presence of some of the witnesses. Further evidence was submitted to the Court in June 2007. The parties submitted post-hearing briefs in July 2007. The Court acknowledges that it has unduly delayed the matter by keeping it under advisement since that time and apologizes for the delay. In January 2010, the Court asked respondent's counsel to make inquiry regarding a particular point (discussed later) and make a further submission to the Court. Counsel did so on February 1, 2010.

The Evidentiary Hearing

The Court next reviews the evidence that was offered in this Court during the course of and after the evidentiary hearing that the Court conducted.

1. Mario Gonzalez

At the hearing, on October 27, 2005, Mario Gonzalez testified that in his original statement to the police on October 25, 1994, the day after the shooting, he did not implicate Morales. He agreed, however, that when he pled guilty, he affirmed under oath the accuracy of a statement of facts that identified Morales as the second shooter. In response to questions by the Court, Gonzalez testified that he first heard the statement of facts when it was read into the record and that he affirmed it because his attorney told him to say yes to everything.

Gonzalez identified an affidavit that he signed in December 1998. He confirmed that he had signed the affidavit and that he stood by its contents. In the affidavit, Gonzalez reaffirmed his guilt but said that the second shooter was Roberto Moncada, not Morales, who Gonzalez said was not with him at the time of the shooting. On cross-examination, Gonzalez stated that he did not know when he executed the affidavit that Moncada had died.

2. John Rea

John Rea, a private investigator hired by Morales' appointed counsel, also testified on October 27, 2005. Rea stated that he located a death certificate for Roberto Moncada stating that he had been murdered on July 19, 1998. Rea confirmed that this was the same Moncada discussed in the affidavits submitted on Morales' behalf.

3. Oswaldo Arroyo

Oswaldo Arroyo also testified at the hearing on October 27, 2005. On August 8, 2000, he signed an affidavit in which he stated that on July 24, 1995 (in other words, after the shooting but before the trial), Jose Nevarro told him that he had never seen the faces of the shooters and that he had falsely implicated Morales. Arroyo testified at the hearing that the contents of his affidavit were true. He said he remembered the date of his conversation with Nevarro five years after the fact because the conversation happened on his (Arroyo's) birthday. He testified that at the time he signed the affidavit, he was incarcerated in the same prison as Morales. He was contacted by a detective hired by Morales' lawyer. Arroyo is serving a sentence for attempted murder and also has convictions for unlawful use of a weapon and delivery of a controlled substance.

Respondent objected on hearsay grounds to the admission of Nevarro's alleged out-of-court statements to Arroyo. Nevarro's statement to Arroyo that he falsely implicated Morales is, in fact, hearsay. Though it arguably was a statement against Nevarro's penal interest (because he had told the police before the date of the statement that Morales was the second shooter), such statements are admissible only if the declarant is unavailable. See Fed. R. Evid. 804(b)(3). Morales made no attempt to show that Nevarro was unavailable to testify.

Nevarro's statement to Arroyo is therefore inadmissible on the merits of Morales' perjured testimony claim in the present case. But Morales has also offered Nevarro's statement as evidence to support his invocation of the "actual innocence" exception to habeas corpus procedural default rules, which respondent has cited in response to certain aspects of Morales' claims. The Supreme Court has made it clear that a court should consider all evidence, irrespective of its admissibility, in assessing the applicability of this exception. See House v. Bell, 547 U.S. 518, 537-38 (2006). The Court will therefore consider Nevarro's statement for that purpose.

4. Desire Aponte

Desire Aponte testified on February 9, 2006. She stated that she was the cousin of Roberto Moncada, who was murdered at the age of twenty-two. She testified that at her home a few days after the shooting, Moncada told her he was "the shooter" in the incident that later led to Morales' conviction. Aponte testified that a couple of years after the shooting, she started writing to Morales, whom she had known for about nineteen years from the neighborhood. At some point (Aponte did not say when), Morales sent her a draft affidavit to the effect that Moncada had admitted his involvement in the shooting. She signed the affidavit on April 5, 1999. Aponte was aware that Moncada died in July 1998. She testified that the affidavit was true. Her testimony regarding Moncada's statement against penal interest is admissible because Moncada is unavailable to testify. See Fed. R. Evid. 804(b)(3).

5. Efrain Morales

Morales testified at the hearing in this case on ...

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