United States of America ex rel. KEVIN BIRDO, Petitioner,
RANDY PFISTER, Warden, Pontiac Correctional Center,  Respondent.
MEMORANDUM OPINION AND ORDER
JOHN J. THARP, Jr., District Judge.
Petitioner Kevin Birdo is currently incarcerated at the Pontiac Correctional Center in Pontiac, Illinois, where he is serving a sentence of seven and a half years for aggravated battery of a peace officer. Birdo now brings a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he raises four grounds for relief: (A) improper denial of his motion for substitution of the trial judge; (B) violation of Illinois Supreme Court Rule 13 when his public defenders did not individually withdraw from his case and notify Birdo of their withdrawals; (C) violation of Birdo's right to confrontation when the trial judge sustained the prosecutor's objection to a particular question; and (D) ineffective assistance of counsel as to Birdo's trial attorney for failing to investigate a potentially exculpatory witness. For the reasons explained here, the Court denies the petition with respect to Claims A, B, and C, but concludes that Birdo may be entitled to an evidentiary hearing of limited scope on his claim for ineffective assistance of counsel (Claim D).
On March 27, 2000, a grand jury indicted Birdo for aggravated battery pursuant to 720 ILCS 5/12-4(b)(6). The charge derived from an incident during the transfer of inmates at the Logan Correctional Center in Lincoln, Illinois on January 12, 2000. Birdo was charged with punching a correctional officer several times and spitting in his face next to the Menard Correctional Center transfer bus while it was stopped at Logan. Birdo was tried and convicted of aggravated battery twice by a jury. Logan County assistant public defender Jeff Page was appointed to represent him at both trials.
The First Trial. Prior to Birdo's first trial, Page submitted a disclosure to the court listing five witnesses, attaching written statements from four inmates (Maurice Hardaway,  Mauricio Rivas,  Jason Bartman,  and Lonnie Henry), and providing the name of Correctional Officer Michael Littleton. Trial commenced on August 12, 2002. During the course of the trial, Birdo was physically restrained with leg shackles and handcuffs, and was required to take the stand wearing the same restraints. Dkt. 15-6 at 101.
The State presented the testimony of Correctional Officers Bryan Wagner and Craig Cowan. Wagner testified that during the transfer of inmates on January 12, 2000, Birdo stepped onto a bus on which Wagner, Cowan, and Littleton were waiting and stated, "If you want me off this fucking bus you're going to have to take me off." Dkt. 15-15 at 115. Wagner told Birdo to get off the bus and Birdo provided essentially the same response, after which Wagner stepped into the stairwell of the bus and "grabbed a hold of his arm to escort him off the bus...." Id. at 116. Birdo then "jerked away from me and hopped down onto the ground, jumped off the last step onto the ground... [A]s I was stepping outside on the ground... Birdo came from the side and with his fist doubled up hit me up side the head, kind of knocked me up against the door, caught me off guard, and then came back and hit me a second time somewhere in the jaw area. And then the third time he swung at me I blocked it with my hand." Id. Wagner added that he had "a small cut to the side of my head, and I had a little cut on the back of my hand... [and] I was having pain from my neck over to my shoulder...." Id. at 117. Cowan testified that "Birdo stepped onto the bus saying he wanted to get on because he was cold. Lieutenant Littleton asked him to step off... Inmate Birdo refused to get off... Then Officer Wagner stood up and told him he needed to get off the bus... [Birdo] said, Fuck you. I'm not getting off... Why don't you fucking make me, bitch.' So Officer Wagner proceeded down the steps. I stood up and he went to grab Mr. Birdo's arm, and he kind of jumped off the bus and kind of in the same motion he c[a]me across... c[a]me up and hit Wagner in the side of the head and neck area... and he got hit twice more that I could see, same head and neck area. And then Wagner blocked the last... [A]nother officer from another bus had come over to help us out, got some leg irons. While Officer Wagner was applying [leg irons] Mr. Birdo spit in his face." Id. at 141-42. Cowan also testified that the driver of the bus was Officer David Young, that Young "wasn't on the bus at the time of the incident, " and that he "d[id]n't know truthfully" where Young was at the time- "I imagine he went inside to do some sort of paperwork." Id. at 140, 147.
The defense called Mauricio Rivas, an inmate, who testified that Birdo asked to get on the bus because he was cold. "[W]hen Mr. Birdo asked if he could board the bus the officer inside made some sort of a humorous comment about it... I remember him laughing about it... He was basically mocking him." Id. at 166-67. Birdo returned to the line of inmates waiting outside of the bus, and then tried to get on the bus a second time but "was pushed off by one of the officers inside." Id. at 168. Rivas did not see Birdo strike an officer during the incident. Id. at 169. Birdo's trial attorney did not call any of the other witnesses he listed in his disclosure.
Birdo testified on his own behalf that he attempted to board the bus twice because he was cold and that during the second attempt, "I believe the bus driver said - he made some type of derogatory statement... I'm not for sure exactly what he said, but he made a statement that was - I guess you could say it was racial. I mean, he said something about I guess we're going to have some fudge sickles, or something like that, for dessert." Id. at 190. Birdo further testified that when he tried to board the bus a third time, Wagner "grabbed me by my label of the jumpsuit, pushed me, and pushed me off the bus. I landed on my head... I believe it was Officer Wagner... jumped on top of me, had his elbow in my head, had me down, face stuck to the pavement. Another officer, I don't know who it was. I don't believe it was... Officer Cowan... but another officer jumped on my legs..." Id. at 193.
During the State's closing rebuttal argument, the prosecutor made several improper comments. For example, the prosecutor accused Page of "mak[ing] up things" and "sucking up" to the jury. Dkt. 15-6 at 101. The prosecutor also raised Birdo's prior convictions as evidence of Birdo's propensity to commit crimes-"what happened was an angry, hostile, profane convicted felon, violently convicted felon who was trying to be controlled by two guards." Id. at 102. Incredibly, the prosecutor even denigrated the presumption of innocence, stating "that's a legal fiction because... at this point, you've already, in your minds, have heard the evidence and began to form judgments... that presumption of innocence that we are all entitled to, but we should not have the benefit of once we have committed a crime, crimes such as these." Id. at 102-03. The jury found Birdo guilty of aggravated battery.
Birdo's Motion for a New Trial. Page moved for a new trial on Birdo's behalf, asserting, among other arguments, that Birdo was prejudiced by the fact that he was physically restrained with leg shackles and handcuffs in view of the jury and that he was denied a fair trial due to the prosecutor's comments during his rebuttal closing argument. Dkt. 15-6 at 100-03. On October 8, 2002, the trial court granted the motion. The court stated in an oral ruling that a new trial was warranted because of the "argument issue, " referring to the prosecutor's comments, and the "shackles issue." Dkt. 15-17 at 2.
Birdo's Pre-Trial Motions. On the morning of the second trial (November 17, 2003), Birdo (although still represented by Page) submitted three written pro se motions: (1) to dismiss the indictment; (2) to substitute the judge; and (3) for a continuance. As part of his motion to dismiss the indictment, Birdo argued that Page was ineffective for, among other reasons,
not promptly comply[ing] with the defendant's reasonable request for information regarding the bus driver whose name the defendant does not know, but is absolutely sure was physically involved and present during the entire alleged incident. During the trial the defendant informed his attorney that Mr. Cowan was not involved but instead a bus driver was. After the trial the defendant requested information regarding the bus driver and after the new trial was ordered the defendant still sought information regarding this material witness and this request was never responded to or fulfilled by Mr. Jeff Page.
Dkt. 15-13 at 34. Page stated on the record that "what directly concerns me is his statements that I have failed to secure a witness on his behalf that he thinks is critical and saying that failure is a violation of professional conduct, and now in no uncertain terms is saying I'm ineffective on his case." Id. at 39. Page later made an oral motion to withdraw as Birdo's counsel, which was denied. Id. at 39-40, 46. The court stated, inexplicably in light of Birdo's complaint about Page's failure to obtain information about the bus driver, that "I don't believe any of his criticisms are basically as to what Mr. Page has done." Id. at 46. As to the motion to substitute the judge, Birdo argued that the same trial judge "sat on my first trial and heard me testify" and that the judge forced him to wear "full upper body and leg restraints in full view of the jury." Id. at 42. As to the motion for a continuance, Birdo argued in his written submission that Page had failed to act on information from Birdo regarding the bus driver's presence during the incident and that Birdo needed a substantial continuance to find the bus driver. Dkt. 15-6 at 229. In denying all three motions, the court stated that it was "an old case" and "ready for trial." Dkt. 15-13 at 40.
The Second Trial. At the second trial, the State again presented the testimony of Officers Wagner and Cowan. Wagner testified that Birdo attempted to board the bus and "I took him by the arm, and when I grabbed a hold of his arm, he pulled away from me and he jumped down onto the ground... Officer Cowan said something to me and I turned around to look at him, and as I stepped onto the ground inmate Birdo hit me... He had his hands doubled up in a fist and struck me on the left side... he came back and hit me again... he was swinging at me a third time and I blocked it and he hit me in the back of my hand... as I put the leg irons on he turned around and spit in my face." Id. at 89-92. Cowan testified that Birdo attempted to board the bus and Wagner "began to escort him off by grabbing his arm. Mr. Birdo jumped off the bus and at the same time c[a]me up and hit him with two clenched fists." Id. at 136. Cowan further testified that he "believe[d] [Officer Young, the bus driver] was out checking other buses to see who had arrived" and that he was not on the bus at the time. Id. at 134.
Birdo testified as the only defense witness. He testified that he asked to get on the bus because he was cold. "The bus driver interjected and said some type of derogatory comment and they laughed about it. He said something to the effect that I felt racially insensitive. I don't know if he meant it to be, but he said something to the effect I guess we are going to have fudge sickles for dessert. He and the other officers laughed about it... I just asked the inmate that was standing there, I said did you hear what he just said." Id. at 166-68. Wagner and Birdo exchanged words, and then Birdo "just stood there. I said I'm cold." Id. at 169-70. Wagner then "came running down the steps with as much speed as he can get, grabbed the front of my... jumpsuit and hurled me off the bus, and I went flying off the bus." Id. at 170.
The jury found Birdo guilty of aggravated battery. On December 9, 2003, the trial court sentenced Birdo to seven and a half years in prison, to run consecutively to his unrelated and (at the time) unexpired sentences. Dkt. 15-6 at 6.
B. Procedural History.
Direct Appeal. Birdo appealed his conviction, raising (1) a claim for ineffective assistance of trial counsel for failing to call certain witnesses, including the bus driver, and (2) a claim that the trial court improperly allowed the state to impeach Birdo with prior convictions. Dkt. 15-2 at 4. The Illinois Appellate Court found that the trial court did not abuse its discretion by admitting Birdo's prior convictions for impeachment purposes and declined to adjudicate the ineffective assistance of counsel claim, stating that "the record contains no indication why defense counsel did not call these witnesses... the issues are more appropriately addressed in proceedings on a petition for postconviction relief." Dkt. 15-1 at 8, 11-12 (Order, No. 4-03-1076 (Ill.App.Ct. Dec. 7, 2005)). On March 29, 2006, the Illinois Supreme Court denied Birdo's petition for leave to appeal. 218 Ill.2d 544 (2006).
Post-Conviction. Birdo next filed a pro se post-conviction petition in the Circuit Court in Logan County, Illinois, claiming that (1) Illinois Supreme Court Rule 13 was violated when the public defenders assigned to represent him at trial did not individually withdraw each time his case was reassigned to a new attorney; (2) Page was ineffective for failing to call certain witnesses, particularly the bus driver, David Young; and (3) Birdo's appellate defender Keleigh Biggins was ineffective for failing to raise several issues in Birdo's direct appeal. Dkt. 15-6 at 219-25. Birdo's post-conviction counsel, Richard Wray, filed an amendment to the pro se post-conviction petition on December 30, 2008. Id. at 267-71. Wray argued that:
[D]espite numerous requests by the defendant, Attorney Page failed to conduct any investigation as to the presence and/or participation of the bus driver. While the written statements of eye-witnesses, together with those of the defendant, placed the driver at the scene at the time of the incident, the State's witnesses testified under oath that the driver was not present.
Id. at 269.
On July 2, 2009, the court granted the State's motion to dismiss as to all claims except the ineffectiveness claim. Dkt. 15-6 at 306-10. The court set an evidentiary hearing on the single issue of "petitioner's claim of ineffective assistance of trial counsel based on counsel's failure to call certain witnesses at trial...." Id. at 310. The hearing was held on March 15, 2010. Birdo's attorney (Wray) called one witness, Jeff Page, to the stand. Page testified to the following:
Page called Mauricio Rivas to testify at Birdo's first trial because he "thought he had some information that would be potentially helpful" but he did not call him to testify at Birdo's second trial because he "made a strategic decision" "based upon his testimony at the first trial." Page added that Rivas's version of the incident differed from Birdo's version in certain ways, and Birdo insisted on testifying at both trials. Dkt. 15-21 at 6, 10-11.
Page interviewed three witnesses on the day of the first trial who were inmates at the time and "decided that none of them were credible in my mind other than Mr. Rivas." Id. at 8-10, 13.
Page acknowledged that he did not subpoena the bus driver, David Young, at either trial. "From what I remember I don't even believe I had a report from [the State's Attorney's office] on this bus driver, and quite frankly from my recollection I don't recall him [Young, the bus driver] ever giving a statement that would suggest that he knew anything about this altercation, that he saw it, or was even present for this alleged altercation." Page acknowledged, however, that Birdo told him that Young was present ("Mr. Birdo did mention that, yes.") and that it would not have been hard to track him down ("I guess I could have done that."). Id. at 19-21, 23-24.
Upon the State's motion for a directed finding, the circuit court described Birdo's claim as ineffective assistance "by failing to call certain witnesses, and those are witnesses whose names have been mentioned here today, three individuals; Jason Bartman, Mauricio Rivas, and Lonnie Henry...." Id. at 30. The court found that Page's explanation as to why he did not call Rivas at the second trial was reasonable. Id. Further, the court found that there was "a complete lack of evidence supporting the... reasonable probability that counsel's performance was prejudicial... There has not been a single witness presented here. No evidence to indicate what any of these witnesses would have testified to...." Id. at 31. The court did not mention Birdo's claim as to Page's alleged ineffectiveness for not calling David Young.
Birdo appealed, arguing that Page was ineffective when he failed to investigate or present Young at either trial. Birdo was prejudiced by this failure, he argued, because the testimony might have bolstered an otherwise uncorroborated defense. Dkt. 15-7 at 11-14. Birdo also argued that his appointed post-conviction counsel, Richard Wray, provided ineffective assistance of counsel by not calling named eye-witnesses at the evidentiary hearing to show the prejudice caused by Page's ineffectiveness at trial. Id. at 15.
The Illinois Appellate Court affirmed the circuit court's directed finding after applying the manifest-weight-of-the-evidence standard. Dkt. 15-10 at 8, 12. The court noted that Birdo only challenged the circuit court's order as it related to Page's failure to investigate Young, and not as it related to Bartman, Rivas, and Henry. Id. at 9. As to Young, the appellate court recognized that, "In its oral pronouncement, the court did not analyze or mention Page's conduct of not contacting Young." Id. It went on, however, to nevertheless "find the court's analysis would apply equally to Young." Id. The court added that the failure to investigate a witness "that purportedly had no knowledge cannot constitute substandard performance." Id. Further, Birdo failed to present evidence of prejudice by not producing testimony or affidavits "that would have revealed the extent of Young's knowledge or the nature of his proposed testimony had he been called as a witness." Id. at 9-10. As to Wray, the court found that post-conviction counsel cannot be deemed ineffective "for failing to perform a futile act." Id. at 10. Since Page exercised "reasonable professional judgment not to investigate Young's involvement, " the court could not say that Wray was ineffective for failing to present the testimony of any witnesses. Id.
Birdo filed a petition for rehearing, arguing that his post-conviction appellate counsel (Elaine Belcher) was ineffective, in part because she was "obligated to point out that this defendant-appellant testified at both trials" that Young was present, Young made a racially insensitive remark to Birdo, Young assaulted Birdo, and Young helped to restrain Birdo with leg shackles. Dkt. 23-1 at 2. Birdo further argued that the appellate court was in error for applying the same analysis to Young as the court applied to Bartman, Rivas, and Henry. Id. at 3. Birdo added that "It can not be assumed that David Young would not have corroborated [Birdo's] version." Id. at 4. Birdo also complained that Belcher was ineffective for failing to brief and preserve several issues, including: (1) violations of Illinois Supreme Court Rule 13; (2) the motion to substitute the judge that Birdo made before his second trial; (3) a violation of Birdo's right to confrontation when at the second trial, his attorney was prevented from asking a particular question due to the prosecutor's sustained objection; and (4) ineffective assistance of his direct appellate counsel. Id. at 4. The Illinois Appellate Court summarily denied Birdo's petition for rehearing. Dkt. 23-2 at 1. Birdo petitioned for leave to appeal to the Illinois Supreme Court, raising several of the same arguments (Dkt. 15-11); that petition was also summarily denied. 968 N.E.2d 83 (Ill. 2012).
Federal Habeas. On July 23, 2012, Birdo filed a habeas corpus petition in federal court. Birdo raised four claims:
Claim A: Improper denial of Birdo's motion to substitute the trial judge.
Claim B: Illinois Supreme Court Rule 13 violation; failure of two public defenders to formally withdraw from Birdo's case and notify Birdo of their withdrawals; loss of witness list due to that failure.
Claim C: Violation of right to confrontation when the trial judge sustained the prosecutor's objection to a particular question.
Claim D: Ineffective assistance by trial attorney Page for failing to ...