United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. Gettleman United States District Judge.
Antoine Moseley is in the custody of the Illinois Department
of Corrections. After a bench trial in 2009, a state court
judge convicted petitioner of one count of aggravated battery
and two counts of aggravated criminal sexual assault. The
Illinois Appellate Court affirmed his convictions and the
Illinois Supreme Court denied him leave to appeal. He fled a
postconviction petition in state court. The trial court
denied it, the Illinois Appellate Court summarily affirmed,
and the Illinois Supreme Court again denied leave to appeal.
seeks a writ of habeas corpus under 28 U.S.C. § 2254,
arguing that his custody violates the Constitution of the
United States. His habeas corpus application presents six
categories of claims: (1) the State put him twice in
jeopardy; (2) the State concealed evidence that was favorable
to him; (3) the trial prosecutor vouched for the complaining
witness's credibility and exaggerated her injuries; (4)
the evidence was insufficient to convict him; (5) his lawyers
at every level were ineffective; and (6) the cumulative
effect of these errors deprived him of a fundamentally fair
reasons described below, the court denies petitioner's
application for a writ of habeas corpus and declines to issue
a certificate of appealability. The court holds that:
1. The State has waived the requirement that petitioner
exhaust his state court remedies.
2. For all but one claim, the State has waived the defense of
procedural default. The State asserts that petitioner has
procedurally defaulted his claim that his lawyer was
ineffective for failing to call Detective Fanning as a
3. This court's review is de novo for: (1)
petitioner's double jeopardy claim; (2) petitioner's
Brady claims; (3) whether petitioner procedurally defaulted
his claim that his lawyer should have called Detective
Fanning; and (4) petitioner's claim that his state
postconviction lawyer was ineffective.
4. This court's review is deferential under 28 U.S.C.
§ 2254(d) for petitioner's other claims.
5. Petitioner procedurally defaulted his claim that his
lawyer should have called Fanning.
6. All of petitioner's claims fail. The claims reviewed
under the deferential standard of 28 U.S.C. § 2254(d)
would fail even if reviewed de novo.
7. Petitioner has not made a substantial showing that his
constitutional rights were denied.
trial court found facts at trial and on postconviction review
that petitioner has not rebutted by clear and convincing
evidence. This court thus presumes those facts true, 28
U.S.C. § 2254(e)(1), and summarizes them below.
testifies that petitioner beat and sexually assaulted
the complaining witness.[*] She testified that on May 18, 2005,
she and petitioner met and exchanged phone numbers.
Petitioner called Doe that night and persuaded her to go out
with him. Petitioner and his cousin, Zuke, picked her up from
her home around 10 p.m. and drove to a liquor store, a
pizzeria, and a bar. Petitioner and Zuke drank scotch and
vodka. Petitioner tried to get Doe to drink. She drank one
cup of vodka.
drove Zuke home. Doe asked petitioner to take her home. He
tried to touch her breasts and legs. She pushed him away and
got out of the car. He persuaded her to get back in, saying,
“Come on. I'll take you home.” He drove to a
secluded location nearby and forced her into the back seat.
He punched her in the face five times and choked her with
both hands around her neck. Doe was screaming, crying and
trying to stop him. Petitioner said, “Shut the fuck up
or I'll kill you.” He turned her onto her stomach
and pulled down her pants. Hoping to stop him from raping
her, she laughed and said, “I just hope you don't
catch something.” She heard him open a condom wrapper.
Petitioner used his penis to contact her anus and vagina.
so scared that she urinated in the back seat. Petitioner
pushed Doe out of his car face first. She hit a pole. She
suffered trauma and swelling to her face, nose, cheeks, and
chin; she bled from her nose, mouth, hand, and legs. A tooth
was pushed back and became crooked. She lost three
fingernails. DNA testing later showed that Doe left blood and
at least one of her fingernails in petitioner's car.
kicked her pants of and ran. She had memorized the make and
model of petitioner's car and the license plate. She
called 9-1-1 from her cell phone and gave that information to
the operator. Police arrived and took Doe to a hospital,
where evidence was collected, including swabs from her vagina
and anus. By then it was early morning on May 19, 2005. At
the hospital, Doe received many calls from petitioner. He
said that he was sorry and begged her not to call the police.
He offered money. She asked him to bring him the purse and
keys that she had left in his car-or money for the keys.
Petitioner came to the hospital with a money order for $99.
He was arrested later that afternoon.
Maloney testifies that Doe's injuries were consistent
with sexual assault
William Maloney examined Doe. The State called him as an
expert in emergency room medicine. Dr. Maloney testified that
Doe arrived at the hospital at 3:35 a.m., distraught but
alert. She said that about an hour before, she was assaulted
by a man who hit her in the face and tried to penetrate her
vagina and rectum. She was unsure if it was his finger or
penis. She thought the man put on a condom and ejaculated,
but she was not sure. She denied drinking alcohol.Dr. Maloney
opined that Doe's injuries were consistent with her
statement. Those injuries included nasal tenderness, soft
tissue swelling, a swollen left cheek, trauma to her face,
and dried blood in her nose. A pelvic exam showed a small,
linear abrasion between her vagina and the anus, close to the
anus, arriving from the anal area.
Maloney took two sets of notes. One set was made
electronically and had templates for patient complaints. On
that set, Dr. Maloney did not check positive for laceration,
discharges, or blood on the rectum. He had neglected to check
positive for laceration. His other set of notes documents
Doe's anal abrasion in writing and on a diagram.
testifies that he beat but did not sexually assault
testified that he picked Doe up for a date. She drank beer
and a pint of vodka. They kissed and tried to have
intercourse, but he could not get an erection. He asked her
to perform oral sex. She refused. She uttered vulgarities,
poked him in the face, and urinated in his car. Petitioner
punched her in the face and struck her nose with the palm of
his hand, causing her nose to bleed. Blood was “faying
out of her mouth.” Petitioner told Doe to “get
the fuck out” of his car, grabbed her by her neck, and
threw her out of the car in the rain, “face first,
” into a pole. He brought her a money order at the
hospital. He did not want his wife to find out what happened.
trial judge convicts petitioner of battery and sexual
trial judge found that the night started as a consensual
date. After petitioner drove Zuke home, he and Doe kissed for
about an hour and a half. Doe drank that night but was not
drunk: she gave the 9-1-1 operator details about
petitioner's car, clothes, height, weight, and tattoos;
all those details were accurate and corroborated by other
evidence. She could not have remembered those details so
accurately if she had been drunk.
trial judge disbelieved petitioner's testimony that Doe
poked him in the face and called him names. The judge found
that petitioner felt entitled to oral sex because he had
spent time and money on her. He asked her for oral sex. She
refused. He got angry and punched her in the face. Blood few
out of her nose. He choked her with both hands around her
neck and said to “shut the fuck up” or he would
kill her. He pinned her and held her face down. She heard him
open a condom wrapper. He penetrated her anus with his penis,
causing an abrasion starting from her rectum and ending
between her anus and vagina. Petitioner did not penetrate her
trial judge also disbelieved petitioner's testimony that
he and Doe were engaged in mutual combat. Petitioner
sustained no injuries-no marks, blood, bruises, or swelling.
Doe's injuries were severe. Photos showed cuts and
bruises on her face and red marks around her neck. Her nose
was swollen and felled with dry blood. Her lips and cheeks
were swollen and bloody. Her tooth was broken. Her hands and
fingers were bruised and bloody, as were her legs and knees.
She lost three fingernails. Her blood was found in the back
of petitioner's car on the seat, window, and door handle.
The judge found that Doe tried to stop petitioner from
sexually assaulting her and that she struggled for her life.
trial judge found petitioner not guilty on eight counts and
guilty on the other five. Petitioner's lawyer moved for a
new trial on the five counts of conviction; the judge vacated
two. Petitioner was convicted of three counts:
Count 4: aggravated criminal sexual assault causing bodily
harm (rectal tearing), 720 ILCS 5/12-14(a)(2) (2003);
Count 9: aggravated criminal sexual assault while committing
or attempting to commit another felony (aggravated battery),
720 ILCS 5/12-14(a)(4) (2003); and
Count 12: aggravated battery causing great bodily harm
(punching Doe's face), 720 ILCS 5/12-4(a) (2003).
trial judge merged the sexual assault counts and sentenced
petitioner to eighteen years imprisonment-fourteen years for
the two counts of sexual assault and four years for the one
count of aggravated battery.
seeks a writ of habeas corpus. When deciding a claim raised
in a habeas corpus application, the federal court reviews the
last state court decision “that provide[s] a relevant
rationale.” Wilson v. Sellers, 138 S.Ct. 1188,
1192 (2018). Te federal court may grant the application for
habeas corpus only if the state court's decision
“was contrary to, or involved an unreasonable
application of, clearly established Federal law, or was based
on an unreasonable determination of facts.” Mertz
v. Williams, 771 F.3d 1035, 1039-40 (7th Cir. 2014)
(quotation marks omitted); 28 U.S.C. § 2254(d)(1)-(2).
If for a given claim there has been no decision on the
merits, the federal habeas court applies the
pre-Anti-Terrorism and Effective Death Penalty Act
standard-de novo. Cafey v. Butler, 802 F.3d 884, 894
(7th Cir. 2015); 28 U.S.C. § 2243.
petitioner has no lawyer, the court construes his pleadings
liberally. Wyatt v. United States, 574 F.3d 455, 459
(7th Cir. 2009). Petitioner's application for a writ of
habeas corpus presents 36 claims. The State agrees that all
36 claims have been exhausted and thus expressly waives the
requirement that petitioner exhaust his state court remedies.
28 U.S.C. § 2254(b)(1)(A); 28 U.S.C. § 2254(b)(3);
see Eichwedel v. Chandler, 696 F.3d 660, 671 (7th
Cir. 2012). And because the State asserts the defense of
procedural default against only one of petitioner's
claims, it has otherwise waived that defense. See Bonner
v. DeRobertis, 798 F.2d 1062, 1066 n.3 (7th Cir. 1986).
claims fall into six categories: (1) double jeopardy; (2)
failure to disclose favorable evidence; (3) prosecutorial
misconduct; (4) sufficiency of the evidence; (5) ineffective
assistance of counsel; and (6) cumulative error. The last
state court decision providing a relevant rationale is the
postconviction court's denial of relief under the
Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-2. The
court holds that all of petitioner's claims fail. Whether
reviewed de novo or under the deferential standards of 28
U.S.C. § 2254(d), none of petitioner's claims
entitles him to a writ of habeas corpus.
Double jeopardy (Claim 1)
first claims that the Fifth Amendment's double jeopardy
clause barred the State from prosecuting him on Count 4 of
the indictment. Counts 3 and 4 charged petitioner with
committing aggravated criminal sexual assault, causing bodily
harm. ILCS 720 5/12-14(a)(2). The counts differed in the
bodily harm alleged: Count 3 alleged “a broken nose and
facial contusions”; Count 4, “rectal
tearing.” The trial judge acquitted on Count 3 and
convicted on Count 4. Petitioner argues that once the trial
judge acquitted him on Count 3, the double jeopardy clause
barred the State from prosecuting him on Count 4.
court reviews petitioner's double jeopardy claim de novo.
See Cafey, 802 F.3d at 894 (7th Cir. 2015). No.
state court ever decided petitioner's double jeopardy
claim on the merits. The state postconviction court rejected
it “as a result of sheer inadvertence, ” not
“based on the intrinsic right and wrong of the
matter.” Johnson v. Williams, 568 U.S. 289,
302-03 (2013). It held that petitioner's double jeopardy
claim “was made on direct appeal, so is res judicata
and frivolous as it has no basis in law or fact.” But
the postconviction court's premise was incorrect. The
Illinois Appellate Court on direct appeal did not reject a
double jeopardy claim; it rejected a claim that the verdicts
on Counts 3 and 4 were legally inconsistent under state law.
See Illinois v. Moseley, No. 1-09-1452, at
¶¶ 28-30, 2011 WL 9692681, at *6 ( Ill. App. 2011).
double jeopardy claim fails on de novo review. The double
jeopardy clause barred the State from putting him
“twice . . . in jeopardy of life or limb.” It did
not bar the State from prosecuting him under alternative
theories in the same trial. See Schad v. Arizona,
501 U.S. 624, 631-32 (1991). The State was free to argue that
petitioner caused both a broken nose and rectal tearing. What
the double jeopardy clause barred was
“relitigation between the same parties of
issues actually determined at a previous trial . . .
.” Ashe v. Swenson, 397 U.S. 436, 441-42
(1970) (emphasis added). There was no relitigation and no
previous trial. The State presented two theories in a single
trial. That single trial did not put petitioner twice in
jeopardy. See Williams v. Warden, 422 F.3d 1006,
1010-12 (9th Cir. 2005) (rejecting a similar double jeopardy
State's failure to disclose favorable evidence (Claims 3
next claims that the State failed to disclose two oral
statements. A criminal defendant's right to due process
of law requires the State to disclose favorable evidence
“material to the defendant's guilt or
punishment.” Sims v. Hyatte, 914 F.3d 1078,
1087 (7th Cir. 2019); Brady v. Maryland, 373 U.S.
83, 87 (1963). Favorable evidence includes impeachment
evidence. United States v. Bagley, 473 U.S. 667, 676
(1985). Evidence is material when “there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682. The State
need not disclose “who it plans to call to
testify” or “what evidence it plans to
present.” United States v. Agyemang, 876 F.2d
1264, 1270 (7th Cir. 1989).
Brady, petitioner claims that the State failed to
disclose two oral statements: (1) Dr. Maloney's statement
that his first set of physician's notes was incorrect;
and (2) Doe's statement that she was
“certain” that petitioner penetrated her anus and
vagina with his penis. Te court holds that neither of
petitioner's Brady claims entitles him to a writ
of habeas corpus.
Dr. Maloney's oral statement that his physician's
notes were incorrect
first claims that the State failed to disclose a statement
made by Dr. Maloney. After examining Doe, Dr. Maloney
completed two sets of physician's notes. One set had
preprinted patient complaints that he could mark positive or
negative-the doctor testified that he “erroneously did
not check the laceration one and make it positive.” He
documented Doe's abrasion in the other set of notes. On
re-cross examination, Dr. Maloney testified that he and the
prosecutor had discussed the discrepancy:
Q. Did you tell the Assistant State's Attorney in this
case, Ms. Welkie, that in fact you had come upon this
epiphany that you had made a mistake with respect to the
reports generated on May 19th, ‘05, that they were
A. We discussed it. And I told her I thought it was
the doctor finished testifying, petitioner's lawyer
objected to what he believed was “a clear discovery
violation, ” stating that he “never received . .
. anything memorializing or codifying the fact that a
State's witness had been interviewed . . . with respect
to the preparation of his notes . . . .” The prosecutor
responded that there were no such notes because her
conversation with Dr. Maloney happened that morning. The
trial judge declined to find a discovery violation. She
reasoned that the conversation's timing was irrelevant:
petitioner's lawyer had received the notes years before
and “had ample time to try to clear that up with him
[Dr. Maloney] before today.”
claims that the State violated his right to due process by
failing to disclose Dr. Maloney's oral statement to the
prosecutor. His right to due process was violated if the
doctor's statement was: (1) favorable to the defense; (2)
material; and (3) disclosed too late for the defense to make
use of it. Sims, 914 F.3d at 1087 (7th Cir. 2019);
United States v. Higgins, 75 F.3d 332, 335 (7th Cir.
1996). Because the state postconviction court inadvertently
did not address this claim, this court reviews de novo.
See Cafey, 802 F.3d at 894 (7th Cir. 2015).
Petitioner's Brady claim fails on de novo
argues that Dr. Maloney's statement was undisclosed and
would have affected the trial. Yet he admits that he
“has never argued that Dr. Maloney's oral statement
was favorable to the defense”-apparently not
understanding that he must do so to make out a Brady
claim. Tat is why it fails. Dr. Maloney's oral statement
was not favorable to the defense. The doctor's first set
of notes was ...