Opinion
No. 97 C 8270
February 22, 2000
MEMORANDUM OPINION AND ORDER
State prisoner Edward Rodriguez has filed a petition for a writ of habeas corpus, alleging nine grounds on which his conviction and sentence for first-degree murder are constitutionally infirm. The court finds that Rodriguez has procedurally defaulted as to six of the nine grounds — five by failing to raise them in state court; and one because the state court relied on a state procedural bar as an adequate and independent basis for disposing of it. As to the other three grounds, the court finds no error by the state courts that would warrant a grant of habeas under 28 U.S.C. § 2254. Rodriguez's petition is denied.
Background
Stemming from a 1990 drug-related stabbing death, petitioner Rodriguez was convicted of first-degree murder after a jury trial, and sentenced to a thirty-year prison term. Rodriguez appealed his conviction and sentence to the Illinois Appellate Court, raising three claims: first, that the trial court erred in denying his motion to suppress identification testimony; second, that the trial court erred in restricting the cross-examination of a prosecution witness; and third, that the trial court allowed improper, prejudicial, and inflammatory closing argument by the prosecution. The Illinois Appellate Court affirmed Rodriguez's conviction and sentence on June 30, 1995 in a twelve-page unpublished order. (Exh. A to Resp.'s Answer)
On August 4, 1995, Rodriguez filed a petition for leave to appeal in the Illinois Supreme Court, raising the same three claims he raised in the Illinois Appellate Court. (Exh. B to Resp.'s Answer) The Supreme Court summarily denied Rodriguez's petition for leave to appeal on October 4, 1995. See People v. Rodriguez, 163 Ill.2d 580, 657 N.E.2d 634 (1995).
On July 3, 1995, Rodriguez filed a petition for post-conviction relief with the state circuit court, raising sixteen claims — four claims that prosecution witnesses (including three police officers) gave perjured testimony at his trial and twelve claims relating to the allegedly ineffective assistance of his trial counsel. (Exh. F to Resp.'s Answer) The circuit court dismissed the petition on September 29, 1995. (Exh. H to Resp.'s Answer)
Rodriguez filed a motion for leave to file a late notice of appeal with the circuit court on December 13, 1996. (Id.) On February 7, 1997, the circuit court denied his motion. (Exh. G to Resp.'s Answer) On June 2, 1997, Rodriguez filed a motion for leave to file a late notice of appeal with the Illinois Appellate Court. (Exh. I to Resp.'s Answer) The court denied his motion on June 12, 1997. (Exh. J to Resp.'s Answer)
The Habeas Petition
Through his November 17, 1997 petition for writ of habeas corpus and his April 27, 1998 amendment to that petition, Rodriguez has raised a total of nine claims before this court:
Although, through substantive overlap, Rodriguez has listed thirteen claims in his petition and amendment, there are only nine distinct claims.
Claim 1: Rodriguez alleges that the trial court erred by not suppressing the lineup identification of him where improper lineup techniques were used. Rodriguez raised this issue with the Illinois Appellate Court on direct appeal and in his petition for leave to appeal to the Illinois Supreme Court. As part of this claim, Rodriguez also alleges irregularities surrounding the in-court identification of him by two witnesses. Although worded somewhat differently, Rodriguez raised this aspect of the claim on direct appeal.
Claim 2: Rodriguez alleges that the trial court erred by not allowing his defense counsel to properly cross-examine one of the prosecution witnesses. Rodriguez raised this issue on direct appeal and in his petition for leave to appeal to the Illinois Supreme Court.
Claim 3: Rodriguez alleges that the trial court erred by allowing improper and prejudicial comments by the prosecutor during his closing argument. Rodriguez raised this issue on direct appeal and in his petition for leave to appeal to the Illinois Supreme Court.
Claim 4: Rodriguez claims that his trial counsel's performance fell below the minimum constitutional standard of effectiveness. Rodriguez raised this issue for the first time in his state court petition for post-conviction review. In support of this claim, Rodriguez also alleges that:
• His trial counsel failed to investigate properly the circumstances of his lineup identification. This was not raised until his habeas petition.
• His trial counsel failed to impeach witnesses properly. This was raised for the first time in his state court post-conviction petition.
• His trial counsel failed to move to suppress the introduction of gang relationships among prosecution witnesses. This was not raised until his habeas petition.
• His trial counsel should have withdrawn due to a conflict of interest caused by her brother being a police officer in the area where Rodriguez was arrested. This was raised for the first time in his state court post-conviction petition.
• His trial counsel refused to discuss a proper defense. This was not raised until his habeas petition.
• His trial counsel failed to investigate complaints filed by Rodriguez with the police department alleging police harassment. This was raised for the first time in his state court post-conviction petition.
• His trial counsel failed to investigate the crime scene properly, which would have shown that testimony of a prosecution witness was wrong. This was raised for the first time in his state court post-conviction petition.
• His trial counsel undercut his "not guilty" defense by describing the incident as one of "mutual combat" in front of the jury. This was raised for the first time in Rodriguez's affidavit to his state court post-conviction petition.
• His trial counsel's pretrial preparation fell below minimum standards of reasonableness. In these terms, this was not raised until Rodriguez's amendment to his habeas petition.
• His trial counsel's trial performance fell below minimum standards of reasonableness. In these terms, this was not raised until Rodriguez's amendment to his habeas petition.
• His trial counsel failed to impeach a prosecution witness with prior statements contained in a police report. In these terms, this was not raised until Rodriguez's amendment to his habeas petition.
• His trial counsel failed to interview and call material witnesses whose names appear in the police records and who would have impeached the testimony of prosecution witnesses. This was not raised until Rodriguez's amendment to his habeas petition.Claim 5: Rodriguez claims ineffective assistance of appellate counsel based on his counsel's failure to raise several viable issues on appeal, including the ineffective assistance of trial counsel claim. Rodriguez also alleges that his appellate counsel failed to communicate properly with him during the appeal. Rodriguez did not raise the ineffective assistance of appellate counsel claim until his habeas petition.
Claim 6: Rodriguez alleges that the prosecutor relied on false witness statements before the grand jury, and that their falsity was discovered through the trial testimony of witnesses. Rodriguez did not raise this claim until his habeas petition. He blames this delay on his trial and appellate counsel's failure to preserve the issue for review.
Claim 7: Rodriguez claims that he should not be deemed to have procedurally defaulted on any of his claims. He alleges that he has not been allowed to pursue the issues in state court due to inadequate representation by his trial and appellate counsel, and by the state courts' abuse of discretion in not allowing his untimely appeals of his post-conviction petition. Rodriguez did not raise this claim until his habeas petition.
Claim 8: Rodriguez alleges that he has never had the entire record of his criminal proceedings. He asks the court to give him a certified copy of the record, along with time adequate to review it for possible defects. Rodriguez did not raise this claim until his habeas petition.
Claim 9: Rodriguez alleges that statements made by the prosecutor during opening and closing arguments were not a matter of fact or testimony presented at trial. Rodriguez did not raise this claim until his amendment to his habeas petition.
ANALYSIS Timeliness of the Habeas Petition
The Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. 104-132, 110 Stat. 1218 (1996), applies to all habeas petitions filed after the Act's effective date — April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Therefore, Rodriguez's habeas petition — filed November 17, 1997 — is governed by the AEDPA's provisions. Among these provisions is a one-year limitations period for the filing of habeas actions that normally runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244 (d)(1). For petitioners such as Rodriguez, whose convictions became final before the AEDPA took effect, the one-year limitations period runs from the Act's effective date. See Gendron v. United States, 154 F.3d 672, 675 (7th Cir. 1998), cert. denied, 119 S.Ct. 1758 (1999). Given that Rodriguez's petition was filed more than one year after April 24, 1996, it should be time-barred.
However, the AEDPA's one-year period is a statute of limitations, not a jurisdictional bar, and thus is subject to equitable tolling. See Taliani v. Chrans, 189 F.3d 597, 597-98 (7th Cir. 1999). The statute itself provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward" the limitations period. 28 U.S.C. § 2244 (d)(2).
Rodriguez's post-conviction petition was denied in September 1995, before the AEDPA even took effect, and so normally would have no tolling effect on the limitations period. However, Rodriguez — who proceeded pro se in the state post-conviction proceedings — alleges that he was never notified of his petition's denial until he called an attorney on December 2, 1996. (Exh. G to Resp.'s Answer) He has submitted a letter that he sent to a state court administrator reflecting his attempts to learn the fate of his petition. (Resp. in Opp. to Resp.'s Answer) His efforts are also reflected in his motions for leave to file a late notice of appeal. (Exhs. G, I to Resp.'s Answer) Rodriguez could not reasonably be expected to have filed his habeas petition while under the impression that his post-conviction petition remained pending in state court.
The court finds this to be that rare situation "when the plaintiff could not, despite the exercise of reasonable diligence, have discovered all the information he needed in order to be able to file his claim on time." Taliani, 189 F.3d at 597. The court believes that Rodriguez's allegations provide a sufficient basis on which to equitably toll the AEDPA limitations period, and thus finds that the limitations period did not begin to run until December 2, 1996, when Rodriguez learned of his post-conviction petition's denial. As such, his November 17, 1997 habeas petition was timely. Even with this equitable tolling, however, Rodriguez's April 27, 1998 amendment to his petition is time-barred.
In light of the danger of giving petitioners an incentive to feign ignorance of their post-conviction proceedings, the court emphasizes the case-specific nature of its finding. In the court's estimation, Rodriguez's correspondence reflects a genuine unawareness of his petition's fate, and the State has produced no rebuttal evidence that the circuit court did, in fact, notify Rodriguez of the denial. In any event, given that he lost any opportunity to appeal his petition's denial in state court, Rodriguez — as well as other prospective habeas petitioners — have a significant countervailing incentive to keep apprised of their post-conviction proceedings.
Procedurally Defaulted Claims
Under 28 U.S.C. § 2254, as amended by the AEDPA, the court may not grant Rodriguez's habeas petition unless he has "exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(1)(A). "In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition." O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1731 (1999). This rule "reduces friction between the state and federal court systems by avoiding the `unseemliness' of a federal district court's overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance." Id. at 1732 (internal brackets omitted).
To meet this "exhaustion" requirement, Rodriguez "must have raised all of his claims during the course of the state proceedings, presenting each claim fully and fairly to the state courts." Rodriguez v. Scillia, 193 F.3d 913, 916 (1999) (citing Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992)). Fair presentment requires Rodriguez "to give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court." Id. For a constitutional claim to be fairly presented, "both the operative facts and the `controlling legal principles' must be submitted" for the court's review. Id.
Of the nine claims Rodriguez presents to this court in his habeas petition, only three were raised on direct appeal in state court. Of the remaining six claims, five were not raised by Rodriguez until this habeas action — ineffective assistance of appellate counsel; false statements by the prosecutor before the grand jury; deprivation of his right to pursue issues in state court; deprivation of his right to a copy of his criminal proceedings record; and opening and closing statements by the prosecutor that were not based on evidence. Because no state courts have had the opportunity to address these claims, they are procedurally defaulted and thereby beyond the reach of this court's habeas jurisdiction. See 28 U.S.C. § 2254 (b)(1)(A).
This court may review these defaulted claims only if Rodriguez's habeas petition "shows cause for failure to raise them at the appropriate time and actual prejudice which resulted from such failure." Rodriguez, 193 F.3d at 917 (citing Wainwright v. Sykes, 433 U.S. 72 (1977)). Absent this showing, "a defaulted claim is reviewable only if refusal to consider it would result in a `fundamental miscarriage of justice,' that is, where `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Id. (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). This would require Rodriguez "to show that it is more likely than not that no reasonable juror would have convicted him." Id. (citing Schlup v. Delo, 513 U.S. 298, 329 (1995)); see also Buelow v. Dickey, 847 F.2d 420, 427 (7th Cir. 1988) (holding that court "may set aside the cause-and-prejudice test and permit a habeas petition if, due to a fundamentally unjust trial, an innocent defendant was convicted"), cert. denied, 489 U.S. 1032 (1989).
Rodriguez alleges "cause" for the default of only one of his claims. He contends that he was unable to raise the issue of the prosecutor's reliance on false grand jury statements because "of both the trial and appellate counsel's failure to preserve said issue for proper review." (Habeas Pet. at 7-B) However, attorney error is not cause for a procedural default unless the error constitutes ineffective assistance of counsel. Coleman v. Thompson, 501 U.S. 722, 753-54 (1991); see also McCleese v. United States, 75 F.3d 1174, 1179 (7th Cir. 1996) ("In order for an appellate attorney's alleged ineffectiveness to qualify as cause to justify procedural default, the defendant must show the appellate attorney's performance was deficient and the performance prejudiced him in the proceeding.") (citing Strickland v. Washington, 466 U.S. 668 (1984)). Thus, unless the failure of Rodriguez's trial and appellate counsel to raise the allegedly false grand jury statements constitutes ineffective assistance of counsel, the court cannot look past the procedural default.
Rodriguez gives no indication as to how the trial counsel failed to preserve for review the issue of the allegedly false grand jury statements. Moreover, there is no indication as to what the false statements were, or how they were contradicted at trial. The mere fact that grand jury testimony was later contradicted by trial testimony is hardly a basis to overturn the trial outcome. Absent clear evidence of grand jury testimony known by the prosecutor to be false at the time it was presented, Rodriguez's counsel would have had little reason to preserve this claim for review or pursue it on appeal. The court cannot say that their failure to do so constitutes ineffective assistance of counsel under Strickland. Consequently, this claim fails the cause-and-prejudice test, and may be reviewed only if the court's failure to review it would cause a fundamental miscarriage of justice.
Because Rodriguez does not allege "cause" for his other claims' defaults, they also are subject to the "miscarriage of justice" standard of review. As to those claims that arguably could not have been raised on direct appeal — e.g., ineffective assistance of appellate counsel — such claims still should have been raised in state collateral proceedings in order to give the state courts an opportunity to remedy the constitutional errors alleged. See Cruz v. Warden of Dwight Correctional Ctr., 907 F.2d 665, 670 (7th Cir. 1990) (noting that petitioner's claim could not have been raised on direct appeal, but requiring him to pursue state post-conviction remedies). Because Rodriguez failed to do so, these claims are procedurally defaulted.
Accordingly, Rodriguez is precluded from raising any of the five claims now unless he can show that it is more likely than not that no reasonable trier of fact would have convicted him absent the alleged constitutional violations. After reviewing the record submitted by the parties, the court finds that Rodriguez fails to meet this stringent standard. Not only do the five claims raised by Rodriguez fail to evidence the possible conviction of an innocent man, but they fail to set forth cognizable constitutional violations even apart from the specter of procedural default.
Ineffective Assistance of Appellate Counsel
Rodriguez alleges that his rights to equal protection, due process, and the effective assistance of counsel were violated when his appellate counsel "totally ignored several viable issues that should have been presented to the Appellate court for proper review." (Habeas Pet. at 7-B) In particular, he points to the appellate counsel's failure to raise the ineffective assistance of trial counsel issue. Further, Rodriguez alleges that his appellate counsel failed to properly communicate with him during the appeal.
To the extent Rodriguez's claim is based on his counsel's failure to communicate with him, it does not bear on his guilt or innocence. For this reason, this court's failure to consider it would not "result in a `fundamental miscarriage of justice.'" Rodriguez, 193 F.3d at 917 (citing Murray v. Carrier, 477 U.S. 478, 495-96 (1986)). The court will not look past the procedural default as to the appellate counsel's alleged failure to communicate with Rodriguez.
Even assuming that the appellate counsel's failure to raise the ineffective assistance of trial counsel issue could bear on Rodriguez's guilt or innocence, the failure to raise it does not support a finding of ineffective assistance as to the appellate counsel. Under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), Rodriguez must show that his appellate counsel's performance was deficient and that it prejudiced him in the underlying proceeding. To show prejudice, Rodriguez must prove "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In the context of Rodriguez's claim, he "must show that if his appellate counsel had raised the [claims] on direct appeal that there would have been a reasonable probability that the claims would have been successful." McCleese v. United States, 75 F.3d 1174, 1180 (7th Cir. 1996).
First, judging from the quality and depth of the appellate briefs, the performance of Rodriguez's appellate counsel appears to have been well above the deficiency standard set forth in Strickland. (Exhs. B and C to Resp.'s Answer) Second, Rodriguez cannot establish prejudice from the failure to attack the trial counsel's performance on appeal. As discussed below, Rodriguez's trial counsel performed well above the minimum constitutional standard; there is no reason to believe that the Illinois Appellate Court would have drawn a contrary conclusion.
Because Rodriguez has not set forth any other specific issues that should have been raised by his appellate counsel, this court cannot opine as to their merit. However, assuming that Rodriguez meant to incorporate the issues raised in his habeas petition and amendment but not on direct appeal, his claim still fails. None of the issues raised have merit; consequently, the, appellate counsel's failure to raise them cannot have prejudiced Rodriguez under the Strickland standard. Rodriguez's ineffective assistance of appellate counsel claim is procedurally defaulted and, in any case, is meritless.
False Statements Before Grand Jury
Rodriguez alleges that his rights to due process and equal protection were violated "when during the presentation of testimony by the prosecution to the grand jury in order to establish probable cause, the prosecution relied on false statements that were later discovered during trial by the contradicted testimony of witnesses." (Habeas Pet. at 7-B)
Rodriguez has failed to indicate what grand jury testimony was false, or how it was contradicted at trial. Even assuming that Rodriguez's claim is true, the mere fact that testimony offered before the grand jury was contradicted at trial does not call the trial's outcome into question. The court's failure to consider this claim does not "result in a `fundamental miscarriage of justice.'" Rodriguez, 193 F.3d at 917 (citing Murray, 477 U.S. at 495-96).
Deprivation of Right to Pursue Issues in State Court
Rodriguez urges the court not to find a procedural default of his habeas claims because he "has not been fairly allowed to pursue the issues contained herein . . . [due to] inadequate representation by trial and Appellate counsel, as well as an abuse of discretion by the [state] court not to allow [him] to appeal his State post-conviction remedies." (Habeas Pet. at 7-C) Apparently, Rodriguez is referring to the state courts' denial of his post-conviction petition and subsequent denial of his motions for leave to file a late notice of appeal. To the extent this can be construed as a claim, it fails.
To the extent Rodriguez purports to fault his counsel for failing to raise his habeas claims previously, such allegations are covered by his ineffective assistance of counsel claims, addressed separately by the court.
This claim does not set forth the violation of a federal constitutional right. Rodriguez does not indicate a basis for his assertion that he is entitled to review of the issues raised in his post-conviction petition. State collateral relief is not a federal constitutional right. See Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir.) ("No constitutional provision or federal law entitles [the habeas petitioner] to any state collateral review."), cert. denied, 519 U.S. 907 (1996). Consequently, state courts' application of procedural rules — here, the time limit for filing a notice of appeal — to those proceedings is not the proper subject of a habeas petition. See id. ("Unless state collateral review violates some independent constitutional right, such as the Equal Protection Clause . . . errors in state collateral review cannot form the basis for federal habeas corpus relief."). Given that Rodriguez does not claim that the state procedural rule was applied inconsistently in his case, this claim does not implicate a federal right.
In any event, the new issues raised in Rodriguez's post-conviction petitions do not provide any indication that a reasonable trier of fact would have found him innocent absent the alleged constitutional errors. Further, the ability of Rodriguez to pursue his claims through state post-conviction procedures does not bear on his guilt or innocence. Accordingly, the court's failure to review this claim does not present a fundamental miscarriage of justice warranting disregard of the fair presentment requirement.
Entitlement to Copy of Entire Criminal Proceeding Record
Rodriguez argues that because "he is not nor was he ever in possession of the entire record of his criminal proceedings," he "is unable to . . . properly and adequately challenge an[y] errors in the record." (Habeas Pet. at 7-C) He asks the court for a certified copy of his record, and for "adequate time in which to properly challenge any possible defects that may exist in the Record." (Id.) Rodriguez does not indicate which portions of the record he lacks, nor whether his appellate counsel was also deprived of a complete copy of the record. Even assuming his claim could be substantiated factually, this claim does not justify overlooking Rodriguez's procedural default. The possibility that Rodriguez has not had a chance to look for errors in his trial record — regardless of whether or not such errors exist — does not give rise to a fundamental miscarriage of justice for purposes of this court's habeas jurisdiction.
Statements by the Prosecutor Not Based on Evidence
Rodriguez alleges that "statements made by the prosecutor during opening and closing arguments were not a matter of fact or testimony presented at trial." (Habeas Pet. Amend. ¶ J) Because this claim was not raised until Rodriguez's April 27, 1998 amendment to his habeas petition, the claim is time-barred. Moreover, Rodriguez has offered no examples of such statements, much less shown how the statements swayed the jury to wrongfully convict him.
None of the five claims that Rodriguez failed to raise properly in state court present a "`fundamental miscarriage of justice' . . . where `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Rodriguez, 193 F.3d at 917 (citing Murray, 477 U.S. at 495-96). As such, the claims are procedurally defaulted under 28 U.S.C. § 2254, and the court cannot review them.
Ineffective Assistance of Trial Counsel
The other claim not raised on direct appeal — ineffective assistance of trial counsel — was raised for the first time in Rodriguez's state court petition for post-conviction relief. Under certain circumstances, a petitioner may be justified in not raising an ineffective assistance argument on direct appeal. "[T]here are cases where the defendant is entirely within his rights to wait to raise an ineffective assistance claim until he initiates a habeas proceeding." United States v. Martinez, 169 F.3d 1049, 1052 (7th Cir. 1999). In other cases, however, "it is appropriate, if not mandatory, for a defendant to raise his ineffective assistance of counsel claim on direct appeal rather than waiting for collateral review." Id. This depends on whether the defendant's trial counsel is also his appellate counsel, and on whether the claim is based solely on the trial record. See id. (citing United States v. Barnes, 83 F.3d 934, 939 (7th Cir.). cert. denied, 519 U.S. 857 (1996)).
Rodriguez did not raise his ineffective assistance claim until his petition for post-conviction relief. Given that Rodriguez's trial counsel did not represent him on appeal, and that most (if not all) of the factual allegations appear to be based on what occurred at trial, this court is not convinced that Rodriguez was justified in not raising the claim on direct appeal. Further, Rodriguez did not file a timely notice of appeal after the state circuit court denied his post-conviction petition. (Exhs. G, I, J to Resp.'s Answer) Normally, Rodriguez would be procedurally defaulted on these claims, even if he properly delayed raising them until his post-conviction petition. See Coleman, 501 U.S. at 729-30 ("The [independent and adequate state ground] doctrine applies to bar federal habeas when a state court declined to address a prisoner's federal claims because the prisoner had failed to meet a state procedural requirement.").
However, the alleged failure by the court clerk to notify Rodriguez of his post-conviction petition's denial could constitute cause for his subsequent procedural default. If the court failed to inform Rodriguez that his petition had been denied, Rodriguez — who was proceeding pro se in the post-conviction proceedings — would have had no reason to believe that the limitations period for filing his notice of appeal was running. In general, this court must honor the state court's subsequent ruling that Rodriguez's notice of appeal was untimely. "When considering a habeas petition, therefore, a federal court must respect a state court's finding of waiver or procedural default under its own laws." Buelow, 847 F.2d at 425.
The general rule does not hold true, however, when the untimeliness results from an external impediment. "[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply with the State's procedural rule." Murray, 477 U.S. at 488. Such impediments include instances where "`some interference by officials' . . . made compliance impracticable." Id. (quoting Brown v. Allen, 344 U.S. 443, 486 (1953)).
The court need not decide whether an alleged oversight by court personnel constitutes "cause" under these circumstances. Even assuming that Rodriguez could establish cause, he cannot establish prejudice, for his ineffective assistance claim plainly lacks substantive merit. Failure under either prong of the cause-and-prejudice test ends the inquiry. See Buelow, 847 F.2d at 425 ("A petitioner's inability to demonstrate either prong results in dismissal of his habeas petition before the merits of his claims can be reached."). Rodriguez did not suffer actual prejudice from the state courts' finding of untimeliness — as shown below, his ineffective assistance allegations would have been dismissed on the merits. To avoid procedural default, Rodriguez would need to show that this court's failure to review his claim will result in a fundamental miscarriage of justice. Given that the court finds his claim to be meritless, it necessarily fails under the more stringent standard as well.
To prevail on an ineffective assistance claim, Rodriguez must establish two components:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.Strickland, 466 U.S. at 687. Further, the Supreme Court has warned that "[j]udicial scrutiny of counsel's performance must be highly deferential," given that "it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id. at 689.
Rodriguez's ineffective assistance claim fails both of the Strickland requirements. Under the first prong, none of the "errors" set forth in Rodriguez's habeas petition evidence a constitutionally deficient performance by his trial counsel.
Three of the errors alleged by Rodriguez are described in such conclusory and unsubstantiated terms that they need hardly be addressed: his allegation that counsel "refused to even discuss a proper defense"; and his allegations that counsel's pretrial preparation and trial performance fell below required standards of reasonableness. Even a cursory review of the appellate record in this case reveals that Rodriguez's trial counsel mounted a vigorous defense: attacking the police lineup procedures; questioning the clarity of the in-court identifications; portraying the prosecution's evidence as insufficient; and arguing that, even if the jury believed the prosecution's case, it showed that Rodriguez acted in self-defense.
Besides their failure to set forth a cognizable habeas claim, Rodriguez's allegations regarding his counsel's pretrial preparation and trial performance are time-barred because they were not raised until the April 27, 1998 amendment to his habeas petition.
In an equally unsubstantiated allegation of error, Rodriguez protests his counsel's failure to properly impeach witnesses. Rodriguez alleges — without support — that "counsel failed to impeach State witness with his prior statements in the police report with evidence in hand." (Habeas Pet. Amend. ¶ M) As discussed above, this claim was not raised until Rodriguez's April 27, 1998 amendment to his petition, and thus is time-barred.
Even if the claim had been timely raised in his habeas petition, Rodriguez does not indicate how this unspecified impeachment material would have swayed the jury, nor whether its omission was an oversight or a strategic decision by counsel. While this court does not have the trial transcript before it, a review of the parties' appellate briefs reveals that prosecution witnesses were subject to cross-examination by defense counsel on various subjects. Even if Rodriguez can now identify additional areas that he believes should have been pursued — which he fails to do in his habeas petition — that does not mean his counsel was constitutionally deficient for not pursuing those areas at trial. Nothing has been brought to this court's attention to indicate that his counsel's impeachment of prosecution witnesses was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690.
As for the trial counsel's failure to move to suppress the introduction of gang relationships among prosecution witnesses, Rodriguez does not indicate a basis for suppressing such information, much less the strategic advantage that would have resulted. In any event, while "[t]he Sixth Amendment guarantees the right to effective assistance of counsel in criminal prosecutions. . . . [i]t does not guarantee the right to counsel who knows and exploits every tactical advantage — unrelated to guilt or innocence — on his client's behalf" Prewitt v. United States, 83 F.3d 812, 818 (7th Cir. 1996).
Rodriguez also alleges that his defense counsel's reference to the case as one of "mutual combat" constitutes ineffective assistance in that it undercuts his "not guilty" defense. The "mutual combat" comment, however, appears to have been a calculated move to mitigate the impact of the prosecution's case. The prosecution offered testimony from several eyewitnesses who saw Rodriguez stab the victim. In offering the "mutual combat" explanation, Rodriguez's counsel justifiably addressed the prospect that the jury may have found the prosecution testimony credible. In any event, for this court to second-guess the trial counsel's defense strategy would be an unjustified intrusion on "the constitutionally protected independence of counsel" and "the wide latitude counsel must have in making tactical decisions." Strickland, 466 U.S. at 689.
In the same vein, Rodriguez alleges that his trial counsel "failed to interview and call numerous material witnesses who[se] names appear in police reports and who made statements that would have [impeached] testimony of State witnesses." (Habeas Pet. Amend. ¶ I) Again, this claim is time-barred because it was not raised until the amendment to Rodriguez's petition. Moreover, this allegation provides no basis on which the court could question the fairness of Rodriguez's trial or the adequacy of his counsel's performance. In any event, as explained above, the court will not second-guess the trial counsel's decisions as to trial strategy, including her selection of defense witnesses.
While Rodriguez styled this claim as being based on his right to a fair trial, it more properly is considered as an ineffective assistance claim. Under either theory, it fails.
To the extent Rodriguez is asserting that his counsel declined to investigate the testimonial value of these witnesses in the first place, the reasonableness of that decision cannot be judged in isolation. "[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. The court has not seen any evidence that would lead it to call into question the judgment of Rodriguez's trial counsel.
Rodriguez next alleges that his trial counsel should have withdrawn due to a conflict of interest caused by her brother being a police detective in the area where Rodriguez was arrested. Assuming the veracity of this allegation, it does not constitute a conflict of interest. Rodriguez does not allege that his counsel's brother was involved in his arrest or prosecution in any way, or even that he had any knowledge of Rodriguez. Rather, he alleges that his counsel's relationship to her brother precluded her from presenting a proper defense, which should have included "an extensive investigation into the credibility of police actions in my case, and . . . aggressive challenges to the accuracy and credibility of police evidence and testimony at trial." (Exh. F to Resp.'s Answer, at Affid. ¶ 34)
In his habeas petition, Rodriguez offers no basis for this assertion. In an affidavit attached to his state court post-conviction petition, however, Rodriguez alleges that a fellow inmate (a former police officer) told him that the brother of Rodriguez's trial counsel was a police detective in the area encompassing the district in which Rodriguez was arrested. (Exh. F to Resp.'s Answer, at Affid. ¶ 32) Rodriguez has never presented an affidavit from this inmate.
"It is well settled that `[a] criminal defendant is entitled to counsel whose undivided loyalties lie with the client.'" United States v. Barnes, 909 F.2d 1059, 1065 (7th Cir. 1990) (quoting United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir. 1986)). Accordingly, a defendant "may bring an ineffective assistance of counsel claim premised on the fact that he and his attorney possessed divergent interests." Stoia v. United States, 109 F.3d 392, 395 (7th Cir. 1997). There are two methods by which Rodriguez may establish such a claim: first, by proceeding under Strickland and showing that counsel had a potential conflict of interest, and that this potential conflict prejudiced his defense; second, by proceeding under Cuyler v. Sullivan, 446 U.S. 335 (1980), and showing that "`an actual conflict adversely affected his lawyer's performance.'" Stoia, 109 F.3d at 395 (quoting Cuyler, 446 U.S. at 348).
Rodriguez's claim fails under either method. First, under the Strickland approach, the trial counsel was not constitutionally deficient for declining to pursue Rodriguez's vague claims of police conspiracy. Notwithstanding her brother's status as a police detective, counsel did pursue concrete allegations of police impropriety in the handling of Rodriguez's case — such as the lineup procedures, which she challenged through a motion to suppress — but her apparent failure to pursue the conspiracy theory to the depth Rodriguez would have liked does not render her performance deficient. Further, Rodriguez has not shown prejudice from the narrowed scope of his counsel's attack on police procedures — there is no reason to believe that a police conspiracy argument would have swayed the jury more effectively than did the defense strategy employed by his counsel.
Rodriguez alleges that "this case was nothing more th[a]n an attempt to `put Petitioner out of circulation.'" (Habeas Pet. at 7-A)
Rodriguez's claim fares no better under the Cuyler framework, which requires him to establish an actual conflict of interest. In this context, "[a]n actual conflict of interest exists if the defense attorney was required to make a choice advancing his own interests to the detriment of his client's interests." Stoia, 109 F.3d at 395 (internal quotation marks omitted). "Such a conflict has an adverse effect if but for the attorney's actual conflict of interest, there is a [reasonable] likelihood that counsel's performance somehow would have been different." Id. (internal quotation marks omitted). This "occurs when a lawyer's actual conflict of interest causes a lapse in representation contrary to the defendant's interests." Id. at 397 (internal quotation marks omitted).
Rodriguez has not established an actual conflict of interest because he has failed to show how a broader attack on the police department's handling of his case would have been detrimental to the interests of his counsel. Indeed, he has not even shown how such an attack would have been detrimental to the interests of his counsel's brother. Rodriguez's claim also fails the second Cuyler prong, in that he has not shown how his counsel's failure to pursue the conspiracy theory constitutes a lapse in representation.
The court does not see any justification for expanding the definition of a "conflict" to include any case where a criminal defendant seeks to impeach case-specific practices of a police department or to present theories of police conspiracy, and where his attorney has some relationship to an uninvolved member of that police department. The "conflict" posed by the brother of Rodriguez's trial counsel does not give rise to an ineffective assistance of counsel claim.
Rodriguez's remaining ineffective assistance allegations involve his trial counsel's alleged failure to investigate. First, Rodriguez alleges that his trial counsel failed to investigate properly the circumstances of his lineup identification. This allegation is belied by the record. His counsel moved to suppress the lineup identification and participated in a hearing on the subject. (Exh. D to Resp.'s Answer at 6) Significantly, Rodriguez does not allege that his counsel failed to investigate the lineup, only that she failed to investigate it properly. He does not indicate how his counsel's investigation was improper or deficient, nor does he allege how a more "proper" investigation would have impacted his trial.
The cover page to the State's Rule 5 exhibits reverses the order of exhibits C and D. Exhibit D is actually the State's appellate response brief, and Exhibit C is Rodriguez's appellate reply brief.
Second, Rodriguez alleges that his trial counsel failed to investigate properly the crime scene. He does not indicate how her investigation was improper or deficient. He only asserts that "she would have realized that the critical testimony of [Mario Guerrero] was totally inconsistent with the layout of the crime scene." (Habeas Pet. at 7-A) He does not indicate how Guerrero's testimony was inconsistent with the crime scene, nor how his counsel's investigation rendered her unable to seize on that alleged inconsistency. In the affidavit attached to his post-conviction petition, Rodriguez alleged that a person in Guerrero's location inside the bar could not have seen inside the bar bathroom, and that Guerrero nevertheless testified about events in that bathroom. (Exh. F to Resp.'s Answer, at Affid. ¶ 45) However, from the court's reading of the appellate record, the critical substance of Guerrero's testimony was not the pre-stabbing events in the bathroom, but his direct observation of the stabbing outside the bar, after the bar had closed.
Finally, Rodriguez alleges that his counsel failed to investigate his previous police harassment complaints. He does not indicate how these complaints — or her failure to investigate them — would have impacted the trial. Apart from their strained support for his police conspiracy theory, they do not bear on his guilt or innocence in this case, nor on the credibility of the witnesses against him. As discussed above, his counsel's failure to adopt his conspiracy theory as the defense strategy hardly renders her performance constitutionally deficient; for the same reasons, neither does her failure to investigate Rodriguez's complaints. As the Supreme Court has recognized:
[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.Strickland, 466 U.S. at 690-91.
Even assuming that his trial counsel's performance was deficient, those deficiencies must have been prejudicial to Rodriguez's defense in order to constitute ineffective assistance. To establish prejudice, "[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693. Rather, Rodriguez "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Rodriguez has not made such a showing as to any of his ineffective assistance allegations. Given his claim's lack of merit, under no circumstances will the court's failure to conduct a full review of the claim create a fundamental miscarriage of justice.
Claims Properly Raised for Habeas Review
Of the nine claims Rodriguez raises in his habeas petition, he raised only three on direct appeal in state court: trial court error in not suppressing the lineup identification of Rodriguez; trial court error in not allowing proper cross-examination of a prosecution witness; and trial court error in allowing improper closing argument by the prosecutor. Because Rodriguez also raised these claims in his petition for leave to appeal to the Illinois Supreme Court, he "has properly presented his claims to the state courts." O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1734 (1999). Given that these are the only claims not procedurally barred, they are the only claims that this court properly may address. That is not to say that the court will undertake a de novo review of these three claims. Rather, apart from issues of pure constitutional interpretation, this court must defer considerably to the state courts' rulings.
Because Rodriguez fully exhausted these claims on direct appeal, he "was not required to go to state habeas at all." Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).
As long as the Illinois Appellate Court employed the proper constitutional framework in analyzing Rodriguez's claims, this court will leave any reasonable determination reached by that court undisturbed. In Lindh v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320 (1997), the Seventh Circuit rejected the notion that the recently amended § 2254 authorizes the issuance of a habeas writ whenever a court errs. While the federal courts must ensure that state courts adhere to the legal principles set forth by the United States Supreme Court, "when the dispute lies not in the meaning of the Constitution, but in its application to a particular set of facts . . . sec. 2254(d)(1) restricts the grant of collateral relief to cases in which the state's decision reflects `an unreasonable application of' the law." Id. In other words, § 2254(d)(1) "tells federal courts: Hands off, unless the judgment in place is based on an error grave enough to be called `unreasonable.'" Id.
The Lindh court's synopsis of the state court's approach lends further insight into the scope of this court's review: "The [state court] opinion . . . is careful; it correctly states the holdings of [the relevant cases]; it does not transgress any clearly established principles; instead it addresses a matter of degree about which thoughtful people can, and do, differ." Id. at 877. According to Lindh, second-guessing the state court's holding in that context would be inappropriate, for "[b]y restricting in the new § 2254(d)(1) the scope of the extraordinary relief provided by the writ of habeas corpus, Congress has instructed the inferior federal courts to refrain from this sort of fine tuning." Id.
Trial Court Error in Not Suppressing Identifications of Rodriguez
Rodriguez asserts that by denying his motion to suppress the lineup identification of him, the trial court violated his constitutional rights to due process and equal protection. According to Rodriguez, the lineups were conducted improperly because: 1) Rodriguez was the only lineup participant with facial hair; (2) the age difference of the participants was too great; and (3) "suspect description did not fit the Defendant. [T]he Detectives changed the description of the suspect list to a description that fit the suspect perfectly." (Habeas Pet. at 6)
A habeas petitioner challenging a state court's evidentiary ruling faces a high hurdle:
To be of constitutional import, an erroneous evidentiary ruling must be so prejudicial that it compromises the petitioner's due process right to a fundamentally fair trial. This means that the error must have produced a significant likelihood that an innocent person has been convicted. . . . Indeed, because of this high standard, evidentiary questions are generally not subject to review in habeas corpus proceedings.Howard v. O'Sullivan, 185 F.3d 721, 723-24 (7th Cir. 1999) (citations omitted).
The Illinois Appellate Court proceeded under the correct legal framework, analyzing this claim under the standard set forth in Stovall v. Denno, 388 U.S. 293 (1967). Under Stovall, Rodriguez bore the burden of establishing that, under the totality of circumstances, his pretrial lineup identification was unnecessarily suggestive, giving rise to a substantial likelihood of irreparable mistaken identification. (Exh. A to Resp.'s Answer at 6 (citing Stovall, 388 U.S. at 301-02)) Even where a pretrial identification is improper, the appellate court observed that Stovall's reasoning dictates that a subsequent in-court identification may be allowed where the prosecution shows by clear and convincing evidence that it is based on an observation independent of and prior to the tainted out-of-court lineup identification. (Id. (citing Stovall, 388 U.S. at 301-02))
The appellate court found that neither of the lineups challenged by Rodriguez were unnecessarily suggestive. The general offense case report described the assailant as "a white Hispanic male with a mustache and beard who was approximately five feet ten inches to five feet eleven inches in height, with sandy brown hair, weighing between 240 and 260 pounds, with a big gut." (Exh. A to Resp.'s Answer at 6-7) Although no photograph was taken of the first lineup, the appellate court noted that all of its participants were between five feet ten inches and six feet one inch in height, and that three of the four participants besides Rodriguez had mustaches. According to the court, "[t]he fact that defendant had a goatee in addition to a mustache does not make the lineup unduly suggestive where all participants had similar physiques and complexions, and wore similar outer garments." (Id. at 7)
As for the second challenged lineup, the appellate court found that all of the participants had similar physiques and body shapes, the same complexions, wore identical white t-shirts, and remained seated during the lineup. All of the participants except one had black or brown hair. This court has reviewed the photograph of the second lineup, and agrees with the Illinois Appellate Court's finding. Although Rodriguez may have been the only Hispanic in the lineup, his complexion is virtually identical to three of the other four participants. Further, three of the other four participants had dark hair, like Rodriguez. The only feature distinguishing Rodriguez from the other participants was his facial hair.
The appellate court observed that, under Illinois law, "[t]here is no requirement that the participants in a lineup be identical." (Id.) This observation comports with federal case law. See United States v. Funches, 84 F.3d 249, 253 (7th Cir. 1996) ("One cannot expect a line-up to consist of five persons with identical measurements and countenances."). Further, the court recognized that, even if a defendant is the only participant with a distinguishing characteristic described by the victim, the lineup is not unnecessarily suggestive. (Exh. A. to Resp.'s Answer at 8) Again, the appellate court's understanding did not conflict with federal case law, much less United States Supreme Court precedent. See, e.g., Funches, 84 F.3d at 253 (finding that lineup was not suggestive despite fact that defendant was only participant with slight build and dark complexion, both of which were traits described by witness). Against these legal standards, the appellate court found that neither lineup was unnecessarily suggestive. This court agrees.
The court does not understand Rodriguez's allegation that "the Detectives changed the description of the suspect list to a description that fit the suspect perfectly." (Habeas Pet. at 6) In any event, this allegation was not raised on direct appeal, and Rodriguez has offered no information or evidence to substantiate the allegation. To the extent it is offered to support his claim that the trial court should have suppressed the identifications, this court rejects it for the reasons set forth above.
The appellate court did not stop there, however. Even assuming that the lineups were suggestive, the court found that the trial court's error in not suppressing the resulting identifications was harmless. The in-court identification of Rodriguez by another witness, Mario Guerrero, "appears credible" and was based on "observations prior to and independent of the lineup." (Exh. A. to Resp.'s Answer at 8) Guerrero testified that he saw Rodriguez chase the victim within four or five feet of where Guerrero was standing, and then saw Rodriguez jump on top of the victim and stab him repeatedly. As such, the appellate court found that Guerrero's testimony would have been admissible even if the lineups had been unnecessarily suggestive.
The second component of Rodriguez's claim relates to the in-court identifications made by Jose Diaz and Samuel Morales. Rodriguez alleges that their testimony was confusing, and that, at a pretrial hearing, the trial court had indicated that the same two witnesses could not identify Rodriguez in a lineup. The appellate court ruled that Rodriguez had waived any challenge to these in-court identifications by not objecting to them at trial or in a post-trial motion. Even so, the appellate court found any error to be harmless given the independent eyewitness identifications by Guerrero and Rudy Romero. Under Illinois law, "[a] single witness' identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification." (Id. at 10 (citing, inter alia, People v. Johnson, 114 Ill.2d 170, 499 N.E.2d 1355 (1986), cert. denied, 480 U.S. 951 (1987)))
As to the vague allegation that, in a pretrial hearing, the trial court questioned the witnesses' ability to identify Rodriguez, Rodriguez has provided no support for this claim. Further, Rodriguez does not indicate how such a statement by the court would give rise to a cognizable constitutional violation apart from the fact that the witnesses were allowed to testify in the first place — a challenge which the appellate court rejected.
This court does not find that the Illinois Appellate Court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or that it was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d).
Trial Court Error in Limiting Scope of Cross-Examination
Rodriguez alleges that his due process and equal protection rights were violated because the trial court did not allow him to cross-examine properly one of the prosecution witnesses, Rudy Romero. In his habeas petition, Rodriguez does not indicate the basis for this claim. However, judging from his state court appellate pleadings, Rodriguez sought to question Romero about the prosecution's procurement of his testimony through a contempt citation. While the trial court allowed the defense to bring out the fact that Romero appeared as a witness only after having a contempt citation issued against him, the court did not allow the defense to bring out which party caused the citation to be issued.
To the extent Rodriguez seeks to assert other ways in which the cross-examination was improperly restricted, such issues are waived given that they were not raised in state court. In any event, although he makes vague allusions to other potential areas of cross-examination in his opposition brief (Resp. in Opp. to Resp.'s Answer at 6-8), Rodriguez has failed to provide the court with an adequate basis on which to review such allegations. "Section 2254 does not `require federal courts to review the entire state record of habeas corpus petitioners to ascertain whether facts exist which support habeas relief.'" United States ex rel. Anderson v. Chrans, No. 99 C 5400, 1999 WL 1046412, at *4 (N.D. Ill. Nov. 5, 1999) (quoting Adams v. Armontrout, 897 F.2d 332, 333 (8th Cir. 1990)).
Again, the Illinois Appellate Court applied the proper legal framework to Rodriguez's claim. Citing Davis v. Alaska, 415 U.S. 308, 316-17 (1974), the appellate court observed that the Sixth Amendment "includes the right to cross-examine a witness as to his or her biases, interests, or motives to testify." (Exh. A to Resp.'s Answer at 11) Based on the trial record, however, the appellate court held that Rodriguez was not denied his right to confrontation. The court observed that the defense cross-examined Romero about his reluctance to testify and possible bias against Rodriguez. Specifically, the defense asked Romero about his probationary status, his failure to respond to the trial subpoena, the contempt order issued against him, and his fear of prosecution in the matter. Even if there was an improper restriction, the appellate found that "such error was harmless since the evidence against defendant was overwhelming." (Id. at 12)
This court finds no basis for questioning the reasonableness of the Illinois Appellate Court's determination.
Trial Court Error in Allowing Improper Closing Remarks by Prosecutor
Rodriguez alleges that his due process and equal protection rights were violated when the trial court allowed the prosecutor to make prejudicial and inflammatory remarks in his closing argument. The appellate court noted that, under Illinois law, "a prosecutor is allowed wide latitude in making his or her closing and rebuttal arguments and the trial court's determination of the propriety of the remarks will not be disturbed absent a clear abuse of discretion." (Id. (citing, inter alia, People v. Pasch, 152 Ill.2d 133, 184-85, 604 N.E.2d 294, 315 (1992), cert. dismissed, 510 U.S. 910 (1993))) Even where a prosecutor's remarks "exceed the bounds of proper comment, the verdict must not be disturbed unless the remarks resulted in substantial prejudice to the accused, such that the verdict would have been different had the remarks not been made." (Id. (citing Pasch, 152 Ill.2d at 185, 604 N.E.2d at 315)) The court found that "the record contains no indication that defendant was prejudiced by comments and remarks made by the prosecutor during closing argument." (Id. at 12-13)
Whether the Illinois Appellate Court applied the proper framework of federal law to this claim is immaterial because Rodriguez, in his appellate brief, did not raise federal law. (Exh. B to Resp.'s Answer at 4) In such situations, the "fair presentment" prerequisite of federal habeas jurisdiction is generally not satisfied. See, e.g., Rodriguez, 193 F.3d at 917 ("By changing the basis of his argument between the state courts and the federal court, [the petitioner] did not `fairly present' the question of whether the defective indictment violated his constitutional rights."). However, this court finds that Rodriguez's invocation of his right to a fair trial "assert[ed] the claim in terms so particular as to call to mind a specific constitutional right," even without explicit reference to federal sources. Moleterno v. Nelson, 114 F.3d 629, 634 (7th Cir. 1997) (quoting Verdin v. O'Leary, 972 F.2d 1467, 1473 (7th Cir. 1992)). In any event, the / appellate court's treatment of the claim under Illinois law comports with federal precedent, and reflects a logical application of that precedent to the facts alleged by Rodriguez.
In determining whether the prosecutor's closing argument deprived Rodriguez of a fair trial, "it is not enough that the prosecutors' remarks were undesirable or even universally condemned." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation marks omitted). Rather, "[t]he relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Id. (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Even an improper remark must be considered in light of the entire record, and, to give rise to a constitutional violation, must be "sufficiently outrageous to affect the outcome of the trial given the totality of the evidence." Rodriguez, 193 F.3d at 920.
In his habeas petition, Rodriguez does not point to any specific comments by the prosecutor that compromised the fairness of his trial. Assuming he contests the same comments that he contested on direct appeal, he objects to the following:
The prosecutor referred to Rodriguez as a "knife-wielding killer." Given that there was testimony at trial identifying Rodriguez as the person who jumped on top of the victim, stabbed him repeatedly, and then waved the knife back and forth in front of a witness's face (Exh. D to Resp.'s Answer at 55-56), the court is unclear as to how this characterization could be construed as improper.
The prosecutor referred to cocaine being spilled on the bathroom floor in the bar where the altercation between Rodriguez and the victim began. At trial, there was testimony from several witnesses that on the night of the murder, there was a dispute in the bar's bathroom between Rodriguez and the victim concerning a cocaine sale. One witness testified that after the murder, Rodriguez told him that "a quarter bag had spilled." (Id. at 54) The court finds that the prosecutor's comments were based on reasonable inferences from this testimony.
The prosecutor represented that Rodriguez enjoyed killing the victim. At trial, there was testimony that Rodriguez jumped on top of the victim as if he were a "horse," then stabbed him repeatedly. A witness testified that Rodriguez then swaggered toward the witness as if "he was making a movie." (Id. at 56) He then waved the knife in the witness's face and asked if he "wanted some of this." (Id.) Again, the prosecutor's representation that Rodriguez enjoyed killing the victim appears to be a fair characterization based on this testimony.
The prosecutor contended that Rodriguez admitted he had stabbed the victim. Specifically, there were two remarks that arguably fall into this category. First, the prosecutor stated: "the Defendant said let's get the two guys by the car." (Id. at 57) This was based on a witness's testimony at trial that Rodriguez had shouted to him, "Let's go get the other two by the car." (Id.) Second, the prosecutor argued: "Think about Rudy Romero's statement, his testimony, after the stabbing he went to the residence of the defendant. He wanted to know what happened, what did the defendant say. Some cocaine had spilled on the floor. So I had stabbed him. You have got this own statement that he did that." (Id.) According to Romero's testimony, Rodriguez admitted to Romero that he had "stabbed him." (Id.) The court finds the prosecutor's statement entirely reasonable in light of this testimony.
While Rodriguez, on appeal, alluded to a third instance where the prosecutor argued that Rodriguez admitted to the stabbing, the cited testimony reflects that no such characterization was made. (Exh. B to Resp.'s Answer at 36; Exh. D to Resp.'s Answer at 57-58)
The prosecutor argued that the evidence was "proof beyond a reasonable doubt, it's the same standard throughout the country. We welcome that burden, it's in the Constitution." (Exh. B to Resp.'s Answer at 38) On appeal, Rodriguez argued that these comments "were intended to reduce the burden on the State and suggested to the jury that proof beyond a reasonable doubt is merely legal jingoism." (Id.) The court does not see how reference to the Constitution demeans the burden of proof to mere "legal jingoism"; this argument is without merit.
Finally, on appeal, Rodriguez focused on the following exchange:
Prosecutor: "Based on the testimony and the evidence you heard, the Defense can very well come at you and say in self-defense, that Joel Morales was fighting back and this is self-defense.
Defense: "Objection, Judge."
Prosecutor: "So they ride two horses."
The Court: "Objection will be sustained."
Prosecutor: "They ride two horses at you. First, they tell you oh well, he wasn't there. Then they say if he was there, this is second-degree murder, because he was provoked. What does that tell you, he wasn't there but if he was, second-degree murder."
Defense: "Judge, I am objecting. The State has the burden of proving both prongs."
The Court: "I understand. The objection will be overruled. The State may argue the evidence in the case."(Id. at 36-37) On appeal, Rodriguez argued that the prosecutor "improperly argued that Edward Rodriguez was asserting self-defense in the case," and that "[n]o such argument was made by the defense." As such, "[t]he statement was misleading and implied that defendant had a burden to prove self-defense." (Id. at 38)
The State pointed out on appeal that Rodriguez's defense counsel had made two separate arguments to the jury: first, that there was insufficient evidence to find that Rodriguez was the person who stabbed the victim; second, that if he was the person, he was guilty only of second-degree murder because he was provoked. (Exh. D to Resp.'s Answer at 62) The prosecutor's self-defense reference was thus an "invited response" to the defense counsel's argument. Darden, 477 U.S. at 182 ("[T]he idea of `invited response' is used not to excuse improper comments, but to determine their effect on the trial as a whole."). Just as it was perfectly acceptable for defense counsel to argue in the alternative on behalf of Rodriguez, it was equally acceptable for the prosecutor to acknowledge that strategy in rebuttal.
This court does not have the trial transcript before it, and so cannot independently verify the accuracy of the State's citation to the transcript. However, given that neither Rodriguez's appellate counsel nor the Illinois Appellate Court challenged the citation or characterization of the cited material, the court will presume its accuracy.
All of the above statements by the prosecutor are based on inferences drawn from the evidence. It is well-settled that "[a] prosecutor is free to invite the jury to draw inferences from the evidence to be presented to the jury." Rodriguez, 193 F.3d at 919. Further, a prosecutor may "promote one version of inferences as more reasonable than another." United States v. Sanchez-Galvez, 33 F.3d 829, 835 (7th Cir. 1994). "As long as these inferences find support in the record such argument is completely proper." Id. In weighing the propriety of a prosecutor's remarks, "a court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations." Donnelly, 416 U.S. at 647.
In this case, this court does not find the prosecutor's remarks to have been improper, much less to have "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643). The Illinois Appellate Court's identical conclusion was in no way an "unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(1).
As to many of the prosecutor's closing comments, there is a question as to whether their propriety was an issue preserved for appeal. (Exh. D to Resp.'s Answer at 53-61) Because the court finds the comments themselves to be within the bounds of acceptable prosecutorial argument, it need not address the underlying waiver issue.