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United States ex rel. Birdo v. Butler

United States District Court, N.D. Illinois, Eastern Division

August 5, 2014

United States of America ex rel. KEVIN BIRDO Petitioner,
KIM BUTLER, Warden, Menard Correctional Center, [1] Respondent.


JOHN J. THARP, Jr., District Judge.

Petitioner Kevin Birdo is currently incarcerated at Menard Correctional Center, where he is serving a sentence of seven and a half years for aggravated battery of a peace officer arising from an incident that occurred on a prison bus. Birdo brought a petition for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254, in which he raised four grounds for relief, three of which were denied in this Court's December 12, 2013; Memorandum Opinion and Order (Dkt. 33). As to the fourth claim, which was related to Birdo's trial attorney's ineffective assistance for failing to investigate whether the bus driver, David Young, could provide testimony corroborative of Birdo's account of the incident, the Court concluded that Birdo might be entitled to a limited evidentiary hearing. After an investigation by the petitioner's appointed counsel and a series of status hearings and filings in which the parties reported their respective positions, this Court denies Birdo's petition as to Claim D.


The facts relevant to this matter are set forth in detail in Birdo v. Pfister, 2013 WL 6514100 (N.D. Ill.Dec. 12, 2013). Here, the Court provides a short summary of only those facts that are relevant to Claim D. On March 27, 2000, a grand jury indicted Birdo for aggravated battery pursuant to 720 ILCS 5/12-4(b)(6). Birdo was tried and convicted of aggravated battery twice by a jury. Logan County assistant public defender Jeff Page was appointed to represent Birdo at both trials. 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. One officer testified at both trials that the driver of the bus was Officer David Young, but that Young was not on the bus at the time of the incident. Dkt. 15-15 at 140, 147. Birdo testified at his first trial that when he attempted to board the bus because he was cold, "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."[3] Id. at 190. Another inmate testified at the first trial only that an officer inside the bus "made some sort of a humorous comment about it... I remember him laughing about it... He was basically mocking him." Id. at 166-67.

On the morning of the second trial, Birdo (although still represented by Page) submitted a pro se motion to dismiss the indictment, arguing 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. Birdo also requested a continuance so that he could attempt to find the bus driver. Dkt. 15-6 at 229. The motions were denied.

Birdo raised his claim regarding Page's ineffective assistance for failing to investigate the bus driver in his direct appeal and in his post-conviction petition.[4] At an evidentiary hearing on Birdo's post-conviction claim, Page testified that he did not subpoena the bus driver 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 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."). Dkt. 15-21 at 19-21, 23-24. The circuit court granted the State's motion for a directed finding, but did not mention in its ruling Birdo's claim as to the bus driver.

Birdo appealed, and the Illinois Appellate Court recognized that, "In its oral pronouncement, the [circuit] court did not analyze or mention Page's conduct of not contacting Young." Dkt. 15-10 at 9. It went on, however, to "find the court's analysis would apply equally to Young, " denying the appeal. Id. The court added that the failure to investigate a witness "that purportedly had no knowledge cannot constitute substandard performance." Id. 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; that petition was also summarily denied. 968 N.E.2d 83 (Ill. 2012). On July 23, 2012, Birdo filed a habeas corpus petition in federal court.


In its December 2013 Memorandum Opinion and Order, this Court concluded that, with respect to Claim D, the Illinois Appellate Court's application of Strickland to the facts before it was unreasonable.

As to Page's performance, this Court found that the appellate court wrongly treated an absence of evidence about Young's knowledge as affirmative evidence that Young had no knowledge about the incident, while ignoring evidence-in the form of two witness affidavits and Birdo's testimony-asserting that Young was present. Moreover, this Court noted that there was evidence that Page had reason to believe Young may have been present during the incident and that he had ignored Birdo's pleas to investigate. This Court also concluded that Page was ineffective for relying solely on the absence of information in the State's discovery and ignoring information from his own client, corroborated by two witnesses.

As to prejudice, this Court concluded that the appellate court assumed, based on the evidence before it, that Young would have been an unhelpful witness ("a witness that purportedly had no knowledge, " Dkt. 15-10 at 9), but there was virtually no basis to draw that conclusion. The appellate court did not know what, if anything, Young had to say about the incident or whether that testimony would create a reasonable probability that the outcome of Birdo's trial would have been different. Since the State's case at the second trial rested heavily on the testimony of two correctional officers, and Birdo's case rested heavily on his own testimony, the potential corroboration by a correctional officer testifying for the defense may have created reasonable doubt as to Birdo's guilt in the eyes of the jury.

This Court then asked the remaining unresolved question: whether Birdo was in fact prejudiced; i.e., whether there is a reasonable probability that Young's testimony would have altered the outcome of Birdo's trial. The Court explained that if ...

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