United States District Court, N.D. Illinois, Eastern Division
JAMES SNOW, Reg. No. N- 50072, PETITIONER,
RANDY PFISTER,  Warden, Superintendent, or authorized person having custody of petitioner, RESPONDENT.
MEMORANDUM OPINION AND ORDER
E. Bucklo United States District Judge.
Snow (“Snow”) has filed a petition for writ of
habeas corpus challenging his conviction for first degree
murder. Snow asserts that his attorneys rendered ineffective
assistance of counsel by failing to conduct an adequate
investigation into his case and by failing to impeach various
witnesses. He also contends that the state committed multiple
violations of Brady v. Maryland, 373 U.S. 83 (1963),
by failing to disclose information helpful to his defense.
For the reasons below, Snow's petition is denied.
approximately 8:15 p.m. on Easter Sunday, March 31, 1991,
William Little (“Little”), who was working as an
attendant at a Clark Oil gas station (“the Clark
station”) in Bloomington, Illinois, was shot and killed
during an apparent robbery. The gas station's silent
alarm had been triggered and Officer Jeffrey Pelo
(“Pelo”) of the Bloomington Police Department
(“BPD”) responded. Pelo parked his vehicle behind
a building across the street and approached the station on
foot. He saw Danny Martinez (“Martinez”) in the
gas station's parking lot filling his car's tires
with air. Pelo saw Martinez walk toward the station, then
turn back around, return to his car, and drive off. Pelo had
a brief conversation with the police dispatcher about the
vehicle's license plate number. A pickup truck then
pulled into the station's parking lot. Pelo instructed
the driver to park across the street and wait for him. Pelo
then entered the station and found Little lying behind the
counter. He had been shot twice and died at the scene.
who lived next door to the Clark station, was later
interviewed. He told investigators that he heard two
“bangs” while filling his tires, and that he
initially believed these to have been the sound of his car
backfiring. After filling his tires, Martinez started walking
toward the station. He claimed that he noticed a man walking
backwards out of the door. Martinez said that he momentarily
turned back toward his car because he heard its engine begin
to stall, and that when he turned back toward the station, he
was within a few feet of the man. Martinez would later
testify that he had been struck by the man's eyes,
stating “His eyes was wide open like if he was out the
whole night, and I'll never forget those eyes.” Ex.
B at 160.
second witness, fourteen year-old Carlos Luna
(“Luna”), who lived across the street from the
Clark station, told investigators that he was looking out of
his window at the time of the incident and saw a white male
walking out of the gas station. He stated that the man
appeared to be carrying something under a long trench coat.
Gerardo Gutierrez (“Gutierrez”) told
investigators that he had purchased fuel at the Clark station
around the time in question and that when he entered the
station to pay, he saw another man with the attendant. The
individual turned away, appearing as though he did not want
to be seen. The police made composite sketches based on
Martinez's, Luna's, and Gutierrez's descriptions,
but no suspect was apprehended.
April 23, 1991, a police officer for Webster Groves, Missouri
went to the home of Snow's sister to arrest him on a
warrant for the robbery of a Freedom Oil gas station in
Bloomington in February 1991. Snow's sister and wife
initially told the officer that Snow was not there, but Snow
was found several hours later hiding in the attic.
following day, BPD Detectives Russell Thomas
(“Thomas”) and Charles Crowe
(“Crowe”) transported Snow back to Bloomington.
Thomas testified that during the trip, Snow appeared anxious
and agitated and asked whether he was a suspect in
Little's murder. After arriving back at Bloomington, Snow
was questioned by Thomas and Michael Bernardini
(“Bernardini”), an Agent of the Illinois State
Police. Thomas and Bernardini asked Snow about a number of
crimes, including the robbery of the Freedom Oil station and
the murder/robbery at the Clark station. According to
Thomas's and Bernardini's testimony, Snow indicated
during the interview that he had information about
Little's murder but that he wanted a deal before saying
1991, the BPD arranged for a lineup that was to include Snow
and five other individuals. By all accounts, including
Snow's, he initially refused to participate. See,
e.g., Ex. I at 179-81; Ex. J at 19. Richard Koritz
(“Koritz”), a public defender representing Snow
in another matter at the time, had previously spoken to BPD
detectives about the lineup and was present when it took
place. Koritz testified that Snow was “distraught and
upset” about participating in the lineup. Ex. H at 21.
According to Snow, he initially refused to stand in the
lineup only until Koritz arrived. See Ex. I at
183-84. However, several other witnesses testified that Snow
remained upset after speaking with Koritz and that Snow had
stated that he was going to fire Koritz. See, e.g.,
Ex. H at 19-20; Ex. J at 19-20; Ex. F at 135. According to
detectives Crowe and Thomas, Snow agreed to participate in
the lineup only after being told that he would be forced to
do so if he continued to refuse. Ex. J at 21; Ex. F at 135.
viewed the lineup and stated that Snow looked like the man he
had seen leaving the gas station on Easter evening. Martinez
indicated that he thought two of the individuals looked like
the perpetrator; however, neither of the individuals was
Snow. At a later time, however, Martinez identified Snow from
a photograph in a local newspaper. Gutierrez also made no
the lineup, Snow moved to St. Petersburg, Florida with his
wife, Tammy, and their children. Snow returned to Bloomington
in July 1993, and in October 1994, he pleaded guilty to
obstruction of justice for attempting to persuade a
girlfriend of his to lie about his involvement in another
crime. Snow was incarcerated until February 1996. During this
period, he was housed in several different prisons. Upon his
release, Snow moved back to St. Petersburg.
September 1999, Snow was indicted for Little's
murder.Snow testified that when he learned of
this, he moved to Ohio. Ex. I at 114, 202. Later that month,
he was apprehended in Akron, Ohio, after a violent fugitive
task force received a tip regarding where Snow was living.
Detective Robert Ondecker (“Ondecker”) approached
the location and saw an individual matching Snow's
description. Ondecker testified that Snow identified himself
as “David Arison” and produced a birth
certificate and social security card with Arison's name.
When Ondecker asked Snow to pull down his sock so he could
check for a tattoo on his calf, Snow fled. He was found a
short time later hiding under the porch of a nearby home.
March 2000, G. Patrick Riley (“Riley”) was
appointed to represent Snow. Riley requested additional
counsel, and in April 2000, Frank Picl (“Picl”)
was appointed to assist in Snow's representation. Riley
and Picl were two of a handful of attorneys in Bloomington
whose experience qualified them for the state's capital
litigation trial bar. The state was represented by Charles
Reynard (“Reynard”), who at that time was McLean
County's State's Attorney, and Assistant State's
Attorney (ASA) Teena Griffin (“Griffin”).
December 20, 2000, Snow sent the trial judge a letter stating
that he believed Picl and Riley were unprepared for trial. At
a subsequent hearing, Snow asked that his trial be continued.
The judge questioned Picl and Riley, who stated that they
were prepared to go forward. The judge denied Snow's
request for a continuance.
trial began in January 2001 and lasted for nine days. In all,
the state called forty-three witnesses, and Snow called
fifteen. In addition to the eyewitness testimony of Martinez
and Luna, the state presented several witnesses who testified
that Snow had confessed to killing Little, bragged or joked
about having done so, or had otherwise implicated himself in
the crime. Because the state's case depended on the
collective strength of these witnesses' testimony, I
summarize the main points here.
Palumbo (“Palumbo”), a friend of Snow's,
claimed that a few days after the Clark station murder, he
was driving in his car with Shannon Schmidt Wallace
(“Wallace”), his girlfriend at the time, when he
saw Snow driving in his car. The two pulled alongside one
another and Snow asked Palumbo if he had read about him in
the paper. When Palumbo answered that he had not, Snow told
him he should be sure to read about it. Palumbo asked what
the paper said and Snow responded, “Boom, boom. Gun
goes off. Kid dies.” Ex. C at 123. Palumbo said that he
spoke about the conversation with Wallace when they got home.
Wallace later corroborated that Palumbo had spoken with her
about the conversation and had told her “Jamie said
that the gun went off and the kid died.” Ex. E at 76.
testified to a later conversation in which he told Snow that
it “wasn't too smart” of Snow to have talked
about the murder in front of other people. Snow replied that
he was not worried because he trusted the others who had been
present during the conversation. According to Palumbo, Snow
“basically said that the kid was a smart ass so he shot
him, ” Ex. C at 126, and that killing Little was not as
hard as he had imagined. Palumbo also testified that Snow
provided additional details about the crime, including that
Snow had gotten very little money from the robbery; that he
did not think the composite sketch resembled him; and that he
had disposed of the gun used in the murder.
Gaddis (“Gaddis”) testified that he had known
Snow for most of his life. According to Gaddis, on the night
of the murder, or the day after, he went to his brother's
apartment and observed Snow and a number of other individuals
in a bedroom. Gaddis testified that everyone looked depressed
and that he asked, “who died?” Gaddis testified
that one of the individuals in the room replied that
“Jamie shot that boy or shot a boy at the gas
station.” Ex. D at 20. Gaddis said that he then looked
at Snow, who had his head down, and that Snow did not deny
what had been said.
Tanasz (“Tanasz”) testified that he lived and
worked with Snow in Florida between 1995 and 1997. He stated
that he had conversations with Snow in which Snow said that
he was unable to return to Illinois because he had been
involved in a robbery there. Tanasz also said that Snow told
him that he had shot someone.
Moffitt (“Moffitt”) testified that he shared a
cell with Snow at Joliet Correctional Center in October 1994.
According to Moffitt, he had met Snow previously because the
two had attended some of the same parties. During their first
night as cellmates, Moffitt testified, Snow talked about the
Clark station murder, referring to the victim as
“BL.” Moffitt stated that Snow told him he was
“concerned because he had committed a crime that had
went wrong, and he was concerned that some people knew about
it; but at the same time he felt safer where he was.”
Ex. D at 102. According to Moffitt, Snow stated that he had
been out getting high with friends on the night of the
murder, and that, having run out of money, they decided to
rob the gas station. Moffitt testified that Snow told him the
decision to rob the station was “kind of based on the
fact that he knew the individual; and he didn't believe
that that individual would do anything to stop him.”
Id. at 103.
Hammond (“Hammond”) testified that he had known
Snow for twenty-five years, and that the two had seen one
another in July 1995 at Centralia Correctional Center.
Hammond stated that over the course of several conversations,
Snow told him that he “shot the kid or he killed the
kid. It was something along that line.” Ex. D at 136.
According to Hammond, Snow also stated “that he knew he
wasn't ever going to get caught because if they had
recognized him, he would have been busted a long time
Howard (“Howard”) testified that Snow picked him
up from a bus station a day or two after the murder and that
Snow asked him if he had heard what had happened. When Howard
said no, Snow told him, “Man, bro, I fucked up. I shot
this kid.” Ex. E at 49. Howard testified that he told
Snow he did not believe him, and that after a minute or two,
Snow claimed to have been joking.
Winkler (“Winkler”) testified that he and Snow
worked together in Florida and that during the summer months
of 1999, he lived in an apartment behind Snow's home.
Winkler stated that during a conversation in 1999, Snow
mentioned his concern about being indicted for the Clark
station murder and indicated that he had committed the crime.
During another conversation, Winkler testified, Snow said
that the police were in Florida trying to locate witnesses
against him. Snow asked Winkler if he (Snow) had previously
said anything incriminating to Winkler about the crime, and
Winkler replied that he had not.
Scheel (“Scheel”) testified that he had known
Snow since childhood. He stated that he saw Snow at a party
in April 1991 after not having seen him for several years.
According to Scheel, Snow told him that he had robbed the
Clark station and had shot the attendant.
Schaal (“Schaal”) testified that he was
Snow's cellmate in Centralia Correctional Center in 1996,
and that he later lived with Snow in Florida. Schaal stated
that he had several conversations with Snow in 1999 about the
Clark station murder. Schaal initially testified at trial
that Snow had not implicated himself in the crime but instead
had told him only that he had helped the perpetrator hide in
an attic. However, Schaal was presented with a prior
statement he made to Reynard, Detective Dan Katz
(“Katz”), and an ATF agent several months
previously. In the earlier statement, Schaal stated that Snow
had confessed to being present at the shooting. Schaal also
stated that the ATF agent told him he would try to help
Schaal if he provided them with information about Snow.
Wright (“Wright”) testified that in 1997, he had
a conversation with Snow while the two were living in
Florida. Wright stated that he asked Snow why he was living
in Florida and that Snow replied that he had shot someone
during an armed robbery in Bloomington. Wright also testified
that he had a conversation with Snow in 2000 while both were
incarcerated in the McLean County Jail. According to Wright,
Snow told him to forget what he had previously said to him
about his involvement in the crime.
Roberts (“Roberts”) testified that in 1993 or
1994, she was in Snow's trailer with several other
people. She stated that she saw composite sketches on
Snow's table of the Clark station murder suspect.
According to Roberts, Snow asked her and the others to take
down the sketches that had been posted around town and to
bring them to him. On another occasion, Roberts testified,
she witnessed a conversation between Snow and Snow's
friend, Mark McCown (“McCown”), who had expressed
concern about the composite sketches. Roberts stated that
Snow told McCown not to worry because the sketches were of
him (Snow), not of McCown. Finally, Roberts testified that on
another occasion, Snow had made a toast by pouring a beer
onto the ground and stating, “This is for Billy
Little.” Ex. F at 36.
Roland (“Roland”) testified that he was
incarcerated with Snow at Logan Correctional Center in 1994.
According to Roland, Snow told him he was “on the
circuit” (i.e., being transferred from prison to
prison) because of his reputation for committing the Little
murder. Roland testified that Snow had told him that on the
night of the murder, Snow had been partying at a home near
the Clark station; that Snow went to the station to get a
free pack of cigarettes; that Snow left angrily when the
attendant refused; that Snow later returned and shot Little
because he was afraid he could identify him; and that Snow
took the pack of cigarettes and what money he could find
before leaving. According to Roland, Snow also told him that
McCown was with him during the commission of the murder.
Strong (“Strong”) testified that she was living
with McCown on Easter of 1991. She stated that on the night
of the murder, McCown arrived at their home late at night
with Snow and asked her if Snow could stay with them for a
few days. Strong said that she refused. Strong was later
recalled as a rebuttal witness after McCown testified for
Snow. She testified that McCown had told her that Snow
“was in a lot of trouble because he had shot the Little
kid in the robbery.” Ex. J. at 9.
Mary Jane Burns (“Burns”), who was a correctional
officer at McLean County jail during Snow's time there,
testified that Snow had told her on one occasion that he was
“real sure or he knew” who had committed the
Clark station murder. Ex. G at 23. According to Burns, Snow
said that he and his girlfriend at the time, Susan Claycomb
(“Claycomb”), had been drinking heavily with
another couple on the day in question, and that they all
decided to go out for a “joy ride.” Burns
testified that Snow told her that the car pulled into an
alley and that he got out because he was going to vomit. The
other male in the car began walking down the alley and said
he would return shortly. The male returned after a few
minutes, got into the car, and they took off.
two eyewitnesses identified Snow, and twelve others testified
that Snow made statements (or in the case of Gaddis, did not
dispute others' statements) indicating his involvement or
implication in the murder. In addition, Shannon Wallace and
Karen Strong testified that Palumbo and McCown, respectively,
had told them Snow had admitted responsibility for the crime.
testified at length in his own defense. He claimed to have
been at home with his wife on the night in question, and he
denied telling any of the witnesses that he had killed
Little. Snow's alibi was corroborated by his wife, who
testified that she was with him during the time in question.
In addition to Snow and his wife, the defense presented other
witnesses to rebut the testimony of several of the
closing, the state focused on eyewitnesses Martinez and Luna,
as well as the many other witnesses who testified that Snow
had implicated himself in the crime. The state also argued
that Snow's guilt was further supported by his refusal to
participate in the lineup, his flight to Ohio following his
indictment, and his attempt to use a false identity before he
was apprehended in Ohio. In addition, the state attacked
Snow's alibi, noting that although Snow had long known
that he was a suspect in connection with the Clark station
crime, he never claimed to have had an alibi until his trial.
defense's closing argument attacked the testimony of the
state's witnesses. Picl pointed out inconsistencies
between the testimony of various witnesses (e.g., Martinez
and Officer Pelo). He also reminded the jury that the events
in question had taken place ten years earlier, that none of
the witnesses had contacted authorities after Snow allegedly
confessed the crime, and that many of the state's
witnesses had lengthy criminal histories. Picl also argued
that the number of witnesses against Snow was a “red
flag, ” suggesting that it was implausible that Snow
would have confessed his involvement in murder to so many
people. See Ex. K at 126-27.
deliberating for two days, the jury found Snow guilty.
Court Post-Trial Proceedings
January 2001, Snow sent two letters to the trial court
asserting that his attorneys had provided ineffective
assistance of counsel. Snow claimed that Picl and Riley were
generally unprepared for trial and that they had failed to
call a number of important witnesses. Snow also claimed that
Picl had been intoxicated on a number of occasions. Snow
filed a motion seeking to discharge Picl and Riley (the
“discharge motion”). For their part, Picl and
Riley filed a motion seeking to withdraw as Snow's
counsel, stating that it had become impossible to work with
April 2001, the trial judge held a hearing on Snow's
motion. The judge reviewed item-by-item each of Snow's
complaints about his attorneys. Snow was given a chance to
explain each grievance, and Picl and Riley were allowed to
respond. The prosecution was also allowed to comment. In a
written opinion (the “April 2001 opinion”), the
court denied Snow's motion to discharge and the
attorneys' motion to withdraw. The court found that Picl
and Riley had spent hundreds of hours preparing for trial and
that they had sufficiently explained their strategic reasons
for not calling the various witnesses identified by Snow.
Id. at 3. As to the allegations of Picl's
intoxication, the court stated that there had been no sign of
impairment, neglect, or incompetence on Picl's part.
Id. at 8. The court found “that the
Defendant's attorneys competently cross-examined and
impeached every one of the State's proffered
witnesses” and that “[t]he performance of trial
counsel in this case was not just competent, but excellent in
the opinion of the Court.” Id. at 14. Picl and
Riley continued to represent Snow at his sentencing. In May
2001, the court sentenced Snow to natural life in prison.
the trial court denied Snow's motion to reconsider, he
appealed, alleging, inter alia, ineffective assistance of
counsel. In an August 2004 opinion, the appellate court
denied Snow's direct appeal. People v. Snow, No.
4-01-0435 (Ill.App.Ct. Aug. 20, 2004) (“Snow
I”). In November 2004, the Illinois Supreme
Court denied Snow's petition for leave to appeal (PLA).
2004, while his direct appeal was still pending, Snow filed a
pro se petition for postconviction relief. In 2008, the
Exoneration Project began representing Snow and subsequently
filed an amended petition citing new evidence in support of
Snow's ineffective-assistance claim. The petition noted
that in 2006, Picl had pleaded guilty to Financial
Exploitation of an Elderly Person, 720 ILCS 5/17-1.3, and had
subsequently been disbarred, Ex. 21. Snow cited evidence from
Picl's sentencing indicating that he suffered from mental
illness, a gambling addiction, and alcoholism, and that these
conditions had resulted in personal and professional problems
as far back as 1999. Snow also cited two court cases,
People v. Beaman, 890 N.E.2d 500 (Ill. 2008), and
People v. Drew, No. 4-08-0011 (Ill.App.Ct. Dec. 4,
2008), which he claimed showed a pattern of misconduct on the
part of the BPD and the McLean County State's
Attorney's Office (and in particular on the part of
Reynard and Detective Katz). In addition, Snow presented a
number of affidavits in which witnesses recanted, or
partially recanted, their trial testimony, or otherwise made
allegations helpful to Snow's case. Some witnesses stated
that BPD detectives had pressured or threatened them into
testifying against Snow; others alleged that certain of the
state's witnesses had received rewards for testifying
April 2011, the circuit court denied Snow's
postconviction petition, see People v. Snow, No. 99
CF 1016, slip op. (Ill. Cir. Ct. Apr. 21, 2011)
(“Snow II”), and in January 2012, the
appellate court affirmed the circuit court, see People v.
Snow, 2012 IL App (4th) 110415, 964 N.E.2d 1139, as
supplemented on denial of rehearing (Mar. 5, 2012)
(“Snow III”). On May 30, 2012, the
Illinois Supreme Court denied Snow's petition for leave
to appeal (“PLA”).
§ 2254 Petition
filed the instant petition in May 2013. Shortly thereafter,
however, Snow informed the court that he had obtained
evidence through a FOIA request indicating, he claimed, that
Martinez had told the police that Snow was not the person he
had seen at the Clark station on the night in question. Snow
also obtained additional evidence indicating, he claimed,
that certain of the state's witnesses had received
benefits and/or had been pressured into testifying against
him. In addition, Snow cited evidence indicating that the
state had failed to disclose that two of its witnesses --
Steve Scheel and Bruce Roland -- had failed polygraph
granted Snow's motion to stay his § 2254 petition
while he sought leave in the state court to file a successive
postconviction petition. In January 2014, the circuit court
denied Snow's request. In May 2015, the appellate court
affirmed the decision. People v. Snow, 2015 IL App
(4th) 140721 (2015) (“Snow IV”). After
the Illinois Supreme Court denied Snow's PLA in September
2015, I lifted the stay.
asserts five grounds in support of his petition: (1)
ineffective assistance of counsel; (II) cumulative
ineffectiveness; (III) ineffective assistance of appellate
counsel; (IV) multiple Brady violations; and (V)
cumulative error. I discuss each of these grounds below.
Snow's petition was filed after 1996, it is governed by
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). Under AEDPA, “a federal habeas
petition may be granted only if a state court's ruling on
a federal constitutional question ‘was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court, ' or
‘was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.'” Makiel v. Butler, 782 F.3d
882, 896 (7th Cir. 2015) (quoting 28 U.S.C. § 2254(d)(1)
& (2)). “AEDPA's deferential standard of review
applies only to claims that were actually adjudicated on the
merits in State court proceedings.” Id. at
896. If, after reviewing the state-court decision under
AEDPA's deferential standard, the decision is contrary to
or an unreasonable application of clearly established federal
law, I review the issue de novo. See, e.g.,
Thomas v. Clements, 789 F.3d 760, 768 (7th Cir.
2015). Similarly, if “a claim was not adjudicated on
the merits by a state court, [a federal court] must dispose
of the matter as law and justice require, which is
essentially de novo review.” Eichwedel v.
Chandler, 696 F.3d 660, 671 (7th Cir. 2012). “The
operative decision under review is that of the last state
court to address a given claim on the merits.”
Makiel, 782 F.3d at 896.
Ineffective Assistance of Trial Counsel
first argues that he is entitled to relief because Picl and
Riley provided him with ineffective assistance of counsel. To
establish an ineffective-assistance claim, Snow must show
“(1) that his trial counsel's performance fell
below objective standards for reasonably effective
representation, and (2) that counsel's deficiency
prejudiced the defense.” Mendoza v. United
States, 755 F.3d 821, 830 (7th Cir. 2014) (quotation
respect to the performance prong, he must overcome the strong
presumption that counsel's conduct falls within the wide
range of reasonable professional assistance.”
Id. (quotation marks omitted). “And with
regard to the prejudice prong, he must show that there is a
reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would
have been different.” Id. (quotation marks
omitted). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Id. (quotation marks omitted).
Strickland's high bar is never an easy
task.” Harrington v. Richter, 562 U.S. 86, 105
(2011) (quotation marks omitted). “Establishing that a
state court's application of Strickland was
unreasonable under § 2254(d) is all the more
difficult.” Id. “The standards created
by Strickland and § 2254(d) are both highly
deferential, and when the two apply in tandem, review is
doubly so.” Id. (quotation marks and citations
asserts eight separate grounds in support of his
ineffective-assistance claim. Specifically, he asserts that
his counsel were ineffective for failing to: (1) use
available information to further impeach Danny Martinez; (2)
call Thomas Sanders, a police sketch artist, to further
impeach Carlos Luna; (3) interview Steve Scheel; (4)
interview Dawn Roberts; (5) call Mark Huffington
(“Huffington”) to further impeach Karen Strong;
(6) investigate and present evidence that witnesses Kevin
Schaal, Bruce Roland, and Jody Winkler received consideration
for their testimony; (7) call Darren Smart to further impeach
Mary Jane Burns; and (8) to further impeach Detective Thomas
and Agent Bernardini with Thomas's grand jury
state initially contends that grounds (2), (3), (4), (6), and
(7) are procedurally defaulted. I agree. “To avoid
procedural default, a habeas petitioner must fairly present a
claim to each level of the state courts.” McDowell
v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013) (quotation
marks omitted). “Adequate presentation of a claim to
the state courts requires the petitioner to present both the
operative facts and the legal principles that control each
claim.” Pole v. Randolph, 570 F.3d 922, 934-35
(7th Cir. 2009). “Thus, if a petitioner fails to assert
in the state courts a particular factual basis for the claim
of ineffective assistance, that particular factual basis may
be considered defaulted.” Id. (citation
omitted). While Snow consistently presented his general
ineffective-assistance claim to the state court, he did not
specifically assert grounds (2), (3), (4), (6), and (7) to
the Illinois Supreme Court in his PLAs. Snow makes no attempt
to show that the claims were fairly presented.
default may be excused “if a petitioner can show either
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or can demonstrate that
failure to consider the claim will result in a fundamental
miscarriage of justice.” Smith v. McKee, 598
F.3d 374, 382 (7th Cir. 2010). “Under this
cause-and-prejudice test, a cause is defined as ... an
objective factor, external to the defense, that impeded the
defendant's efforts to raise the claim in an earlier
proceeding.” Id. (quotation marks omitted).
“Prejudice means, an error which so infected the entire
trial that the resulting conviction violates due
process.” Id. (quotation marks omitted).
does not address the question of procedural default as to any
of the above-mentioned grounds individually. His response to
the state's argument is relegated to a footnote in his
reply brief. See Pet'r's Reply Br. at 5 n.3.
Snow argues that the cause requirement is satisfied by
Illinois Supreme Court Rule 315(d), which limits PLAs to
twenty pages. Given this restriction, Snow claims, he was
unable to discuss each of the grounds on which his
ineffective-assistance claim is based. Like other courts that
have been presented with this argument, I find it
unpersuasive. See, e.g., Cutts v. Smith,
No. 5:11-CV-991, 2014 WL 1775515, at *11 n.72 (N.D. Ohio Apr.
23, 2014) (fifteen-page limit on briefs did not satisfy cause
requirement for purposes of procedural default); Dema v.
Arizona, No. CV-07-0726-PHX-DGC, 2008 WL 2941167, at *19
(D. Ariz. July 25, 2008) (same).
also fails to show that he meets the prejudice requirement.
He merely asserts that “the merits of his claims
demonstrates the prejudice.” Pet'r's Reply Br.
at 5 n.3. Similarly, in support of his argument that he meets
the miscarriage-of-justice exception, Snow claims that he has
shown his actual innocence and that “the State's
entire case against him is a fabrication.” Id.
Procedural default cannot be excused on the basis of such
conclusory assertions. Accordingly, grounds (2), (3), (4),
(6), and (7) of Snow's ineffective-assistance claim are
noted above, for purposes of AEDPA, I review the last
reasoned state-court decision to address the merits of the
claim in question. See, e.g., Makiel, 782
F.3d at 896. The last reasoned state-court decision on the
merits of Snow's ineffective-assistance claim was the
circuit court's order denying Snow's initial
postconviction petition (“Snow II”). In
its entirety, Snow II's discussion of Snow's
ineffective-assistance claim is as follows:
This issue was fully litigated both prior to sentencing and
on appeal, and principles of waiver and res judicata apply.
Even if this were not so, the claims of ineffective
assistance do not meet the Strickland standard of
showing counsel's performance fell below an objective
standard of reasonableness and that there is a reasonable
probability that the result would have been different absent
counsel's errors. Most of what is complained of is trial
strategy. Strickland v. Washington, 466 U.S. 688
(1984). Also, counsel's behavior in other cases is not
evidence of his ineffective assistance in this case. The
State's Motion to Dismiss on this basis is Granted.
Snow II, at 3.
Non-Defaulted Ineffective-Assistance Grounds
to the non-defaulted grounds of the ineffective-assistance
claim, Snow cites his counsel's failure to: (1) use
available evidence to further impeach Danny Martinez; (2)
impeach Karen Strong's testimony with the testimony of
Mark Huffington; and (3) to use available discovery to
impeach the testimony of Detective Thomas and Agent
Bernardini. In further support of his claim, Snow contends
(4) that Picl's personal and professional problems
contributed to his inability to render effective assistance
of counsel. Each of these grounds fails.
Ground (1): Failure to Further Impeach Danny
recap, Danny Martinez testified that he was in the parking
lot of the Clark station around the time of the murder. He
stated that he heard two “bangs” while filling
his car tires with air, and that as he later started walking
toward the station, he noticed a man walking backwards out of
the door. Martinez testified that he turned back toward his
car because he thought the engine was about to quit, and that
when he turned back toward the station, he was within a few
feet of the individual.
testimony was undercut in several ways. On direct
examination, Martinez admitted that he had been unable to
pick Snow out of the lineup in April 2001. He also admitted
that he was unable to identify Snow in photograph arrays that
included Snow's picture. See, e.g., Ex. B at
172. Martinez testified that it was only after seeing
Snow's photograph in the local paper in 1999 that he
recognized him as the man he had seen outside the Clark
cross-examination, Martinez was unable to identify the color
of Snow's eyes -- despite his claim that he would never
forget the eyes of the man he encountered that night. Ex. B
at 194. In addition, Snow's counsel highlighted the
inconsistency between Martinez's account of the events in
question and Officer Pelo's. Pelo testified that as he
approached the gas station, he saw Martinez in the parking
lot, but did not see anyone else. In his closing argument,
Pelo, if you'll recall, trained observer and while he
said he had his mind on many things, you can bet first and
foremost when he's approaching a business that he's
just received a report on of a robbery in progress,
what's one of the things he's certainly looking at,
the door of the business to see if anybody comes in or goes
out; of course, that's what he's looking at. He's
not rotating, spinning like a top or a dervish to take into
view and assimilate every single fact that ...