Opinion
No. 97 C 3011
December 4, 2000
MEMORANDUM OPINION AND ORDER
Petitioner Orville Miller is a prisoner at Stateville Correctional Center in Joliet, Illinois, where he is serving a sentence for attempted murder. On September 28, 2000, we denied his petition for habeas corpus relief. Petitioner wishes to appeal our judgment and therefore seeks a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and F.R.A.P. 22(b). This request is granted in part and denied in part.
We may issue a certificate of appealability only if we find that petitioner has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This means that petitioner must "demonstrate that an issue is debatable among jurists of reason or that the questions `deserve encouragement to proceed further.'" Porter v. Gramely, 112 F.3d 1308, 1312 (7th Cir. 1997), quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983). We must either grant the certificate, indicating which specific issue or issues satisfy this standard, 28 U.S.C. § 2253(c)(3), or deny the request, stating why the certificate should not issue. F.R.A.P. 22(b)(1). Petitioner raised eighteen issues in his petition for habeas relief. We find that reasonable jurists could only disagree about claims 1-4.
Our opinion denying habeas relief identified the following claims in the petition. For brevity, we will refer to them as numbered here:
1. references to gang association;
2. references to co-defendants' prior trial;
3. comments during closing arguments;
4. denial of confrontation regarding whether victim was carrying a gun;
5. insufficient evidence to prove guilt beyond reasonable doubt;
6. admission of officer's testimony about witness' out of court identification of defendant;
7. admission of rebuttal evidence about omitted address;
8. references to defendant's prior trial;
9. improper consecutive sentences;
10. multiple convictions for the same acts;
11. longer sentence as punishment for not pleading guilty;
12. disparate sentence compared to co-defendants;
13. state's use of perjured testimony;
14. search warrant based on perjured testimony;
15. use of non-pattern jury instructions;
16. refusal to give a circumstantial evidence instruction;
17. references to the victim's paralysis;
18. ineffective assistance by trial and appellate counsel.
These four claims challenged evidentiary rulings and the prosecutors' conduct. In reviewing state judges' evidentiary rulings we must balance "the rights of criminal defendants under the sixth and fourteenth amendments to present evidence in their own defense and the state's `sovereign prerogative' to regulate the presentation of evidence in its courts." Cunningham v. Peters, 941 F.2d 535, 538 (7th Cir. 1991). Similarly, we must evaluate whether prosecutorial misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181 (1986). In petitioner's trial, the prosecutors made frequent attempts to portray him as a gang member (claim 1). The trial judge excluded most explicit references to a gang or organization, but permitted some questions showing petitioner's relationship with his co-defendants and how they frequently "hung out" together. We found that the statements cited in petitioner's brief would not `infect' the trial. But another jurist may disagree. There are facts in the record supporting the argument that jurors may prejudge reputed gang members, and, despite the judge's efforts, jurors could well have drawn that inference from the prosecutors' questions. Guilt-by-association would be a substantial denial of constitutional rights.
Claim 2 asserted that references to petitioner's co-defendants' trial prejudiced his trial. Although we found that the trial judge acted reasonably in allowing some, but not all, of this testimony, this line of questioning poses similar risks of guilt-by-association. Another jurist could disagree with how we assessed those risks in this case.
Claim 3 attacked the state's closing argument. Petitioner's appellate brief cited four particular statements: (1) accusations that defense counsel suborned perjury; (2) suggestions that defense counsel felt compelled to put on a defense; (3) suggesting one of petitioner's friends tampered with witnesses; and 4) referring to petitioner as a coward. We found the prosecutor was indeed overzealous, but that the comments did not rise to the level of denying petitioner a fundamentally fair trial. Again, we can envision a reasonable dissenting opinion, so an appeal is appropriate.
Finally, petitioner tried to impeach the victim about whether he was carrying a gun when petitioner allegedly attacked him (claim 4). The trial judge excluded this testimony as too tangential. Applying theCunningham balancing test, we found that this point, even if erroneous, did not create a fundamentally unfair trial. We recognize, however, that the victim's identification was critical to the state's case and that his credibility was very much in issue. The right to confront one's accuser is fundamental to a fair trial, and another jurist could reasonably disagree with our balancing.
We find that no reasonable jurist would disagree with our remaining findings on claims 5-18. We therefore deny a certificate of appealability with respect to those claims.
Claim 5 alleged that there was insufficient evidence to find petitioner guilty beyond a reasonable doubt. Petitioner may not find the victim to be a particularly credible witness, but the jury apparently believed his testimony. We cannot second-guess a jury's credibility determinations. With the eyewitness testimony, a rational jury could easily have convicted on the evidence presented. This satisfies the constitutional standard, and we do not believe any reasonable jurist would feel obliged to set aside the jury's verdict.
We found claims 6-8 defaulted because they were not presented as constitutional questions in state court. Petitioner's state court briefs argued these as evidentlary questions, relying exclusively on state law evidentiary cases. No reasoned jurist could find that petitioner satisfied any of the criteria set forth in Verdin v. O'Leary, 972 F.2d 1467, 1473-74 (7th Cir. 1992), for presenting a constitutional question. Claims 10 and 11 are simply not supported by the record. The record clearly reveals that petitioner was only sentenced for one crime, and contains no facts suggesting the trial judge imposed a longer sentence because petitioner did not plead guilty or testify at trial. No reasoned jurist could find otherwise.
We found claims 13 and 14 were defaulted. The record contains none of this supposed evidence of perjury, yet alone evidence that the prosecutors wilfully used perjured testimony. Because petitioner failed to present his supporting facts to the state courts, even on his petition for post-conviction relief, no reasoned jurist could find that these claims were properly presented.
Claims 9, 12 and 15-17 did not present federal questions. There is no federal law against consecutive sentencing (claim 9). Nor did petitioner allege the disparate sentences were based on any grounds prohibited by federal law (claim 12). Evidence of the victim's injury is also a state law issue, not a constitutional one (claim 17). No reasoned jurist could find any federal question presented here. See, e.g., Steward v. Gilmore, 80 F.3d 1205, 1214 (7th Cir. 1996) (finding petitioner failed to raise federal issue with respect to sentence). Similarly, there is no federal law prescribing particular jury instructions (claims 15 and 16). Petitioner failed to explain how the given instructions violated his constitutional rights, or to even present their text. Bald assertions that jury instructions violated due process fall far short of a substantial showing of a constitutional violation. See Moleterno v. Nelson, 114 F.3d 629, 634-35 (7th Cir. 1997) (finding petitioner did not properly present constitutional argument against jury instruction).
Lastly, claim 18 asserted inadequate appellate counsel. UnderStrickland v. Washington, petitioner must establish both deficient performance and actual prejudice. 466 U.S. 668, 687 (1984). Specifically when appellate counsel's conduct is in question, "only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986). We found appellate counsel's performance adequate. He raised eight issues on appeal and briefed them at great length. Nothing in the record suggests any of petitioner's additional claims would have fared any better. Judges should not second-guess counsel's tactical decisions. Whatever potential these additional claims may have had in state court, we do not believe any reasonable jurist would find them "clearly stronger" than those counsel raised.
We note that among these were all four claims we here find reasonable jurists could disagree upon.
CONCLUSION
For the reasons set forth above, petitioner's application is granted in part and denied in part. We issue a certificate of appealability with respect to claims 1-4.