Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Snow v. Pfister

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

December 20, 2016

RANDY PFISTER, [1] Warden, Superintendent, or authorized person having custody of petitioner, RESPONDENT.


          Elaine E. Bucklo United States District Judge.

         James 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.


         At 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.

         Martinez, 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.[2]

         A 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.

         On 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.

         The 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 anything.

         In June 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.

         Luna 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 identification.

         After 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.

         In September 1999, Snow was indicted for Little's murder.[3]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.

         Snow's Trial

         In 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”).

         On 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.

         Snow's 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.

         Ed 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.

         Palumbo 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.

         William 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.

         Dan 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.

         Bill 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.

         Edward 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 ago.” Id.

         Randall 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.

         Jody 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.

         Steven 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.

         Kevin 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.

         Ronnie 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.

         Dawn 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.

         Bruce 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.

         Karen 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.

         Finally, 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.

         In all, 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.

         Snow 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 state's witnesses.

         In its 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.

         The 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.

         After deliberating for two days, the jury found Snow guilty.

         State Court Post-Trial Proceedings

         In 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 him.

         In 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.

         After 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”).[4] In November 2004, the Illinois Supreme Court denied Snow's petition for leave to appeal (PLA).

         In May 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 against Snow.

         In 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”).

         Snow's § 2254 Petition

         Snow 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 examinations.

         I 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.

         Snow 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.


         Because 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.

         III. Ineffective Assistance of Trial Counsel

         Snow 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 marks omitted).

         “With 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).

         “Surmounting 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 omitted).

         A. Preliminary Issues

         1. Procedural Default

         Snow 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 testimony.[5]

         The 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.

         Procedural 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).

         Snow 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).

         Snow 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 procedurally defaulted.

         2. Operative Decision

         As 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.

         B. Non-Defaulted Ineffective-Assistance Grounds

         Turning 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.

         1. Ground (1): Failure to Further Impeach Danny Martinez

         To 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.

         Martinez's 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 station.

         On 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, Picl stated:

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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.