UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

 

United States of America ex. rel., 

FERNANDO GOMEZ, 

 Petitioner, 

 v. 

DONALD HULICK, Warden, 

Menard Correctional Center, 

 Respondent. 

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Case No. 12-C-5111 

Judge John W. Darrah 

MEMORANDUM OPINION AND ORDER 

 Pursuant to 28 U.S.C. § 2254, Petitioner Fernando Gomez filed a Petition for Writ of 

Habeas Corpus for his 2003 first degree murder conviction in the Circuit Court of Cook County, 

Illinois. For the reasons presented below, the Petition for Writ of Habeas Corpus is denied. 

BACKGROUND 

Direct Appeal

The following facts are taken from the Appellate Court of Illinois’s orders denying 

Petitioner’s direct and post-conviction appeals. On June 17, 2001, Petitioner, a Latin King, and 

fellow street gang members shot and killed a rival gang member, Juan Avalos. (Sept. 19, 2005 

Appeal Order at 2.) Three days later, on June 20, 2001, Petitioner was arrested at a UPS facility 

where he worked and questioned by Chicago Police Department detectives regarding the murder. 

(Id. at 3.) Prior to questioning, Chicago Police Detective Michael Cummings advised Petitioner 

of his Miranda warnings, and Petitioner agreed to be interviewed. (Id.) Thereafter, on June 22, 

2001, Petitioner was once again advised of his Miranda warnings and agreed to be interviewed, 

providing a videotaped statement regarding his involvement in the murder. (Id. at 4.) Petitioner 

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contends he invoked his right to counsel while in the custody of the Chicago Police Department 

when he asked to contact his family in order for them to get him an attorney. (Pet. at 5.) 

Additionally, Petitioner argues that while he was in custody, his family was denied access to him 

and thus unable to determine whether he needed counsel. (Id. at 8-9.) 

Petitioner was found guilty of the first degree murder of Juan Avalos by a jury on 

October 17, 2003, and subsequently sentenced to 40 years’ incarceration. (Sept. 19, 2005 

Appeal Order at 19-20.) Petitioner filed a motion for a new trial, which was denied by the 

Circuit Court of Cook County. (Id. at 19-20.) Following his conviction, Petitioner appealed his 

conviction, asserting three grounds: (1) the trial court erred when it denied Petitioner’s motion to 

suppress statements made during his interrogation after having invoked his right to counsel; (2) 

the holding1

 in People v. McCauley, 645 N.E.2d 923 (Ill. 1994), should be extended to a situation 

where a defendant’s family presents itself at the police station; and (3) Petitioner did not have an 

initial probable cause determination hearing, or a Gerstein hearing, within 48 hours of his arrest, 

so his confession must be suppressed. (Sept. 19, 2005 Appeal Order at 1.) 

 As to Petitioner’s first ground on appeal regarding his motion to suppress, the Illinois 

Appellate Court found that Illinois Supreme Court’s ruling in People v. Auilar was applicable. 

319 N.E.2d 514 (1974). In Auilar, the Illinois Supreme Court held that “even if there was an 

error in the admission of his statement, it was cured by his testimony.” Auilar, 319 N.E.2d at 

517. In Petitioner’s case, Petitioner gave testimony at trial consistent with his videotaped 

confession; therefore, any issue regarding the admissibility of his confession is waived or any 

 1

 The holding in McCauley provides that “police officers may not deny an attorney access 

to his client and may not refuse to inform a suspect in custody that his attorney is seeking 

immediate access to him.” People v. Outlaw, 904 N.E.2d 1208, 1218 (Ill. App. Ct. 2009) (citing 

People v. McCauley, 645 N.E.2d 923, 938-39 (Ill. 1994)). 

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error rendered harmless. (Sept. 19, 2005 Appeal Order at 24.) Even if Petitioner did not waive 

any issue regarding the admission of his confession by testifying at trial, the Illinois Appellate 

Court found Petitioner did not invoke his right to counsel when he requested to call his family 

during the interview. (Id.) Even if Petitioner had requested to call his family so that they could 

obtain counsel for him, this request was ambiguous, at best. (Id. at 25.) The appellate court 

determined Petitioner’s ambiguous request to speak to his family was insufficient to indicate to 

police that he was exercising his right to an attorney or wanted an attorney present before any 

further questioning. (Id.) 

 The second ground raised by Petitioner on appeal was that the rule in McCauley should 

be extended to situations in which a suspect’s family member goes to the police station and asks 

to speak with the suspect to determine whether counsel is necessary. This argument was rejected 

by the appellate court, which held, “there is no corresponding right to the presence of family 

members, nor any constitutional right of a family to have access to a suspect, as [Petitioner] 

seeks to impose.” (Sept. 19, 2005 Appeal Order at 36.) The Illinois Appellate Court quoted the 

decision in McCauley, which provided that: “the law in Illinois remains that ‘when police, prior 

to or during custodial interrogation, refuse an attorney appointed or retained to assist a suspect 

access to the suspect, there can be no knowing waiver of the right to counsel if the suspect has 

not been informed that the attorney was present and seeking to consult with him.’” McCauley, 

645 N.E.2d at 930 (quoting People v. Smith, 442 N.E.2d 1325 (Ill. 1982)). 

 Finally, the appellate court rejected Petitioner’s third ground on direct appeal, holding 

that Petitioner was not entitled to the automatic suppression of his confession because he was not 

afforded a probable cause hearing within 48 hours. (Sept. 19, 2005 Appeal Order at 39.) The 

appellate court reasoned that the proper test to suppress statements made in violation of Gerstein 

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v. Pugh, 420 U.S. 103 (1975), is whether the statements were voluntary, that is, “whether the 

inherently coercive atmosphere of the police station was the impetus for the confession or 

whether it was the product of free will.” (Sept. 19, 2005 Appeal Order at 39) (quoting People v. 

Willis, 831 N.E.2d 531, 535 (Ill. 2005)). Petitioner did not allege his confession was 

involuntary; as such, the Appellate Court of Illinois affirmed Petitioner’s conviction for first 

degree murder on direct appeal. (Sept. 19, 2005 Appeal Order at 39.) The Illinois Supreme 

Court denied Petitioner’s leave to appeal that decision on January 25, 2006. (Respondent’s 

Answer Ex. F.) 

Post-Conviction Petition

 Following his direct appeal, on May 12, 2006, Petitioner filed a pro se post-conviction 

petition in the Circuit Court of Cook County, pursuant to the Illinois Post-Conviction Hearing 

Act, 725 ILCS 5/122-1, et seq., alleging ten separate claims of ineffective assistance of counsel 

during his trial and subsequent appeal. (June 30, 2011 Appeal Order at 2.) The trial court 

appointed an attorney to represent Petitioner during his post-conviction petition, and with the 

assistance of counsel, Petitioner filed a supplemental post-conviction petition. (Id.) The Circuit 

Court of Cook County dismissed the post-conviction petition without an evidentiary hearing, on 

the basis that Petitioner’s “claims did not constitute a substantial showing of a constitutional 

deprivation.” (Id. at 2.) Petitioner appealed the dismissal of his post-conviction petition to the 

Illinois Appellate Court, contending the lower court erred when it dismissed his ineffective 

assistance of counsel claims without a hearing. (Id.) Specifically, Petitioner argued he received 

ineffective assistance of counsel because his trial attorney failed to object to statements made 

during the prosecution’s closing arguments and failed to present mitigating evidence during his 

sentencing hearing. (Id. at 5.) 

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The Illinois Appellate Court found the presentation of mitigating evidence in the form of 

testimony from Petitioner’s family during his sentencing hearing would have been cumulative 

because counsel recited those mitigating factors during his argument. (Id. at 18.) As such, the 

court found Petitioner was not prejudiced by trial counsel’s failure to present the testimony of his 

family members at sentencing. (Id. at 18.) The Illinois Appellate Court further held the alleged 

improper statements made by the prosecutor during closing argument, when viewed as a whole, 

did not prejudice Petitioner, given the overwhelming evidence presented at trial against him. (Id. 

at 21-22.) The appellate court also noted that the jury received an instruction regarding closing 

arguments at trial, minimizing any purported error that may have been committed by 

prosecutors, and that, therefore, appellate counsel did not err for failing to raise this issue. (Id. at 

22.) Because Petitioner’s claim did not establish a substantial showing that his constitutional 

right to effective assistance of counsel was violated, the Illinois Appellate Court affirmed the 

dismissal of Petitioner’s ineffective assistance of counsel claims asserted in the post-conviction 

petition. (Id.) 

Petitioner then filed a Petition for Leave to Appeal the post-conviction petition, raising to 

the Illinois Supreme Court only the claim that trial counsel was ineffective for failing to 

investigate mitigating evidence or present mitigating testimony at his sentencing hearing, which 

was denied on November 30, 2011. (Respondent’s Answer Ex. O.) 

LEGAL STANDARD 

Habeas corpus relief is available to a person in custody following entry of a state court 

judgment against him, only on grounds that his custody is in violation of the United States 

Constitution or the laws or treaties of the United States. 28 U.S.C. § 2254(a). Accordingly: 

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An application for a writ of habeas corpus on behalf of a person in custody 

pursuant to the judgment of a State court shall not be granted with respect to any 

claim that was adjudicated on the merits in State court proceedings unless the 

adjudication of the claim: (1) resulted in a decision that was contrary to, or 

involved an unreasonable application of, clearly established federal law, as 

determined by the Supreme Court of the United States; or, (2) resulted in a 

decision that was based on an unreasonable determination of the facts in light of 

the evidence presented in the State court proceedings. 

28 U.S.C. § 2254(d)(1)-(2). A writ of habeas corpus may issue under the “contrary to” clause of 

28 U.S.C. § 2254(d) by two means. First, the writ may issue if the state court applied a rule 

different from the governing law set forth by the United States Supreme Court. Williams v. 

Taylor, 529 U.S. 362, 405 (2000). Second, the writ may issue under the “contrary to” clause if 

the state court decides a case differently than the United States Supreme Court has done on a set 

of materially indistinguishable facts. Id. at 406. 

The court may issue a writ under the “unreasonable application” clause of § 2254(d) if 

the state court correctly identifies the governing legal principle of the United States Supreme 

Court but unreasonably applies the principle to the facts of the particular case. Id. at 407. The 

court may only issue a writ of habeas corpus if it determines that the state court’s application of 

federal law was “objectively unreasonable.” Id. at 365. This is a difficult bar for a petitioner to 

reach because “unreasonable” is considered “something lying well outside the boundaries of 

permissible differences of opinion.” McFowler v. Jaimet, 349 F.3d 436, 447 (7th Cir. 2003) 

(citing Williams, 529 U.S. at 411). 

When the petitioner is in custody as a result of a state court judgment, the state court’s 

determinations on factual issues are presumed to be correct. 28 U.S.C. § 2254(e)(1). The federal 

court gives deference during its review to the last state court’s decision. Griffin v. Pierce, 622 

F.3d 831, 841 (7th Cir. 2010). Thus, the petitioner bears “the burden of rebutting the 

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presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). A 

federal court reviewing a petition for writ of habeas corpus “may not issue the writ simply 

because the court concludes in its independent judgment that the relevant state-court decision 

applied clearly established federal law erroneously or incorrectly.” Jackson v. Frank, 348 F.3d 

658, 662 (7th Cir. 2003) (internal quotations and citations omitted). Only when the court 

determines the state court’s application of federal law was “objectively unreasonable” may the 

court issue a writ of habeas corpus. Williams, 562 U.S. at 409. 

The statute also requires that the applicant for a writ of habeas corpus must have 

exhausted all remedies available to him in state court in order for the writ to be granted. 28 

U.S.C. § 2254(b)(1). The applicant of a writ of habeas corpus must give the state court the first 

opportunity to review the applicant’s claims and remedy any constitutional violations. 

O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). The applicant for a writ of habeas corpus 

must give the state court “one full opportunity” in the state’s appellate review process, including 

filing a petition to a court of discretionary review, to remedy any constitutional violations. Id. at 

845; see Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004) (finding that to avoid 

procedural default, the applicant for a writ of habeas corpus must present his claims at every 

level of the state court’s appellate review system including petition to a court of discretionary 

review). A petitioner’s claims are defaulted when he has exhausted state court remedies without 

presenting his claims at every level of the state court appellate process. Lewis, 390 F.3d at 1026. 

When a petitioner has exhausted his state court remedies without presenting his federal 

claims at every level of the state court’s appellate process, his claims are defaulted unless the 

petitioner demonstrates the reason for the default and prejudice or otherwise shows it is 

necessary for the federal court to overlook the default in order to prevent “a fundamental 

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miscarriage of justice.” Guest v. McCann, 474 F.3d 926, 930 (7th Cir. 2007). To satisfy the first 

exception, the petitioner must demonstrate that “‘some objective factor external to the defense 

impeded counsel’s efforts’ to raise the claim in state court.” McCleskey v. Zant, 499 U.S. 467, 

493 (1991) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Once the petitioner 

demonstrates cause, he must show “actual prejudice” suffered from the alleged constitutional 

violations of which he complains. McCleskey, 499 U.S. at 494 (quoting United States v. Frady, 

456 U.S. 152, 168 (1982)). The second exception to a habeas claim being procedurally defaulted 

requires the petitioner to demonstrate the constitutional violation of which he complains caused 

an innocent person to be convicted. McCleskey, 499 U.S. at 494 (characterizing such a violation 

as a fundamental miscarriage of justice). 

ANALYSIS 

Ground I: Invocation of Right to Counsel 

In the first ground asserted, Petitioner alleges the state appellate court’s determination 

that his right to counsel was not violated when he allegedly asked to contact his family so that 

they can retain counsel on his behalf was an unreasonable decision and contrary to federal law. 

(Pet. at 5.) Pro se petitioners’ pleadings are held to “less stringent standards than formal 

pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). Although Petitioner 

does not expressly state due process and equal protection as the constitutional bases for his 

argument regarding the alleged violation of his right to counsel in his appellate state court 

proceedings, construed liberally, Petitioner invokes the Fifth Amendment as the constitutional 

bases for his petition. Thus, Petitioner’s claims are not procedurally defaulted for failure to 

present the constitutional basis of his right to counsel claim in his direct appeal or in his petition 

filed here. However, Petitioner fails to make any argument or facts demonstrating disparate 

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treatment to support his equal protection claim. Even if Petitioner had made an argument 

regarding the basis of this claim, it would be procedurally defaulted under the presentment 

requirement of 28 U.S.C. § 2254(b)(1). 

Essentially, Petitioner argues in the first claim that his Fifth Amendment right to counsel 

was violated when he allegedly requested to call his family for the purpose of obtaining counsel 

on his behalf. (Pet. at 5.) Petitioner asserted this claim at the state appellate level on direct 

appeal. The appellate court there found the trial court’s decision to deny Petitioner’s motion to 

suppress his statements was not manifestly erroneous because he did not invoke his right to 

counsel. (Sept. 19, 2005 Appeal Order at 29.) The Illinois Appellate Court’s findings regarding 

Petitioner’s claim were not contrary to established law or an unreasonable application of the law. 

The Illinois Appellate Court held: 

We will not disturb a trial court’s decision denying a motion to suppress unless 

that decision is manifestly erroneous. People v. Pitchford, 314 Ill. App.3d 72, 76, 

731 N.E.2d 323 (2000). It is the trial court’s function to determine the credibility 

of witnesses and resolve conflicts in testimony. People v. Matthews, 306 Ill. 

App.3d 472, 482, 714 N.E.2d 98 (1999). “A defendant’s request for an attorney is 

a per se invocation of his fifth amendment right and requires that all questioning 

by authorities cease.” People v. Torres, 306 Ill. App.3d 301, 310, 714 N.E.2d 534 

(1999). In other words, “[a]n accused in custody, ‘having expressed his desire to 

deal with the police only through counsel, is not subject to further interrogation by 

the authorities until counsel has been made available to him,’ unless he validly 

waives his earlier request for the assistance of counsel.” People v. Eichwedel, 247 

Ill. App.3d 393, 397, 617 N.E.2d 345 (1993). The court must, as a threshold 

matter, determine whether a defendant has, in fact, invoked his right to counsel. 

Eichwedel, 247 Ill. App.3d at 397. “Not every vague or ambiguous reference to 

an attorney will suffice as an invocation of the right to counsel.” Torres, 306 Ill. 

App.3d at 310. “Rather an accused’s demand must be sufficiently clear and 

definite as to reasonably inform the authorities of the accused’s intention to 

invoke his right to an attorney.” Torres, 306 Ill. App.3d at 310. After receiving 

evidence at the defendant’s motion to suppress hearing and “observing the 

demeanor of the testifying witnesses, the trial court is entitled to believe the 

State’s version of events rather than the defendant’s version.” Torres, 306 Ill. 

App.3d at 311. 

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(Sept. 19, 2005 Appeal Order at 21-22.) 

The appellate court resolved Petitioner’s claim through its application of the principle 

articulated in People v. Auilar, 319 N.E.2d 514 (Ill. 1974). (Sept. 19, 2005 Appeal Order at 22.) 

Specifically, the court in Auilar held: 

[I]t generally has been held that if a defendant takes the witness stand and admits 

in substance matters contained in a confession or statement he has given the 

police, this testimony will be considered to have waived or made harmless any 

error that may have occurred in the admission of the confession or statement. 

(Sept. 19, 2005 Appeal Order at 22) (quoting Auilar, 319 N.E.2d at 516-17). Applying Auilar to 

Petitioner’s claim, the appellate court held that when Petitioner “voluntarily testified at trial in 

substantial conformity with his videotaped confession, any error in admitting his videotaped 

confession or denying his motion to suppress was waived or rendered harmless.” (Sept. 19, 2005 

Appeal Order at 24.) The appellate court further found that, even if Petitioner had not waived 

any error regarding the admission of his statements, the court would have found that Petitioner’s 

request to see his family so they could obtain counsel for him was ambiguous at best and not an 

invocation of counsel. (Id. at 24-25.) The court held Petitioner’s request was insufficient to 

notify the police he was asserting his right to counsel or that he wanted an attorney present 

before any questioning by the police. (Id. at 25.) 

The appellate court also looked at the totality of the circumstances and concluded 

Petitioner spoke to the police voluntarily. (Id. at 26.) At no time did Petitioner specifically ask 

for an attorney, nor did he refuse to answer questions without the presence of counsel. (Id.) The 

appellate court’s findings did not contradict United States Supreme Court precedent. 

Furthermore, with no United States Supreme Court cases based on “materially indistinguishable 

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facts,” the appellate court’s finding that Petitioner did not invoke his right to counsel is not 

contrary to federal law. Accordingly, the petition is denied on this ground. 

Ground II: Extension of McCauley 

Petitioner asserts his second basis to support his habeas corpus petition is that his rights 

were violated when the police denied his family access to him while he was in custody. (Pet. at 

8.) To support this contention, Petitioner cites to Illinois statutory provisions and Illinois case 

law. (Id. at 8-9.) Even after construing the petition under a less stringent standard, as Petitioner 

is proceeding pro se, Petitioner failed to state a constitutional basis for his claim. Petitioner’s 

claim is based largely on the Illinois Supreme Court’s decision in People v. McCauley, 645 

N.E.2d 923 (Ill. 1994), and the Illinois Code of Criminal Procedure, 725 ILCS 5/103-3. (Id.) 

Petitioner argues that the second ground for his petition, the denial of his family to access him 

while he was in custody, is an error of the application of state law. 

The appellate court declined to extend McCauley to the case at bar and found Petitioner’s 

family was not entitled to have access to Petitioner while he was in custody. (Id. at 37.) The 

court in McCauley articulated: 

the law in Illinois remains that when police, prior to or during custodial 

interrogation, refuse an attorney appointed or retained to assist a suspect access to 

the suspect there can be no knowing waiver of the right to counsel if the suspect 

has not been informed that the attorney was present and seeking to consult with 

him. 

 

(Sept. 19, 2005 Appeal Order at 31) (quoting McCauley, 645 N.E.2d at 930) (internal quotations 

and citation omitted). However, the appellate court noted the McCauley rule has not been 

extended to other situations, including those in which an attorney calls the police station where 

his client is in custody. (Sept. 19, 2005 Appeal Order at 34.) According to the appellate court, 

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Illinois case law establishes a defendant’s state constitutional rights are violated when police 

deny the defendant’s attorney physical access to the defendant during an interrogation and the 

police did not notify the defendant his attorney wanted to consult with him. (Id. at 34.) The 

appellate court also declined to extend McCauley to an Illinois statute permitting an arrestee to 

make a reasonable number of telephone calls to a family member or attorney of his choice 

because it was a statutory right, and not a constitutional right, afforded to the arrestee but not his 

family members. (Id. at 35-36.) 

 In Petitioner’s Reply, he argues his claim regarding his family being denied access to 

Petitioner while he was in custody does implicate a constitutional right. To support his 

contention, Petitioner argues the Illinois case law relied upon, namely People v. McCauley, 

includes a lengthy discussion of federal due process as it applies to custodial statements. (Reply 

at 8.) 

Under Section 2254(b), a petitioner is required to fairly present his federal claims to the 

state court, in order to give the state the opportunity to correct violations of federal rights. 

Johnson v. Pollard, 559 F.3d 746, 751 (7th Cir. 2009). However, the fair presentment 

requirement is not satisfied if a pleading does not cite to any case law that would alert the court 

that a federal constitutional right is the basis of the claim. Baldwin v. Reese, 541 U.S. 27, 31 

(2004). A claim is not fairly presented “if that [state] court must read beyond a petition or a brief 

(or a similar document) that does not alert it to the presence of a federal claim in order to find 

material, such as a lower court opinion in the case, which does so.” Id. at 32. The Seventh 

Circuit considers four factors to determine whether a petitioner for a writ of habeas corpus has 

fairly presented his claims in the state court process: “1) whether the petitioner relied on federal 

cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases 

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which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim 

in terms so particular as to call to mind a specific constitutional right; and 4) whether the 

petitioner alleged a pattern of facts that is well within the mainstream of constitutional 

litigation.” Byers v. Basinger, 610 F.3d 980, 985 (2010) (quoting White v. Gaetz, 588 F.3d 1135, 

1139 (7th Cir. 2009)). 

 Although Petitioner argues his claim states a federal constitutional basis given the due 

process discussion in McCauley, the state courts would have to look beyond Petitioner’s brief to 

find a federal constitutional basis for his claims because it is not immediately apparent through 

the citation of the state court opinion alone. Moreover, McCauley is distinguishable from the 

present case because, unlike McCauley, Petitioner’s family, and not an attorney, arrived at the 

police station, seeking to speak to Petitioner. Petitioner does not frame his claim in particular 

terms so as to call to mind a federal constitutional right; rather, Petitioner’s claim relies heavily 

on Illinois case law, statutes, and the Illinois Constitution. Petitioner also failed to state a fact 

pattern that is within the mainstream of constitutional litigation of equal protection rights and due 

process rights. As discussed above, Petitioner’s claim does not state specific facts implicating a 

federal due process violation. 

As Petitioner’s second claim is based on rights guaranteed by the Illinois Constitution 

and an Illinois statutory provision, habeas corpus review of this ground is barred for lack of a 

federal constitutional basis. The United States Supreme Court has not interpreted the Fifth 

Amendment as requiring police to allow a family member access to an arrestee in custody to 

determine if he may need counsel. Therefore, Petitioner’s second ground for habeas corpus 

relief fails. 

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Ground III: Petitioner’s Confession 

In his third claim, Petitioner argues his Fourth Amendment rights were violated when he 

was detained for approximately 51 hours following his arrest without being brought before a 

judicial officer for a probable cause hearing. (Pet. at 12.) Petitioner relies on Gerstein, which 

held the Fourth Amendment requires that an arrestee be brought before a judicial officer for a 

probable cause determination. Petitioner argues further that his videotaped confession should 

have been suppressed because he did not receive a probable cause hearing within 48 hours. (Pet. 

at 14.) Petitioner presented his claim to the Illinois Appellate Court, which rejected the claim. 

The appellate court reasoned: 

The Willis court held that the proper test was the voluntariness test, not an 

attenuation test. Specifically the Willis court stated that ‘[w]hen faced with a 

Gerstein/McLaughlin violation, we ask simply whether the confession was 

voluntary – whether the inherently coercive atmosphere of the police station was 

the impetus for the confession or whether it was the product of free will. . . . If so, 

it is admissible. If not, it is inadmissible.’ The length of delay, however, is 

nonetheless a factor in considering whether a confession is voluntary. 

(Sept. 19, 2005 Appeal Order at 39) (quoting People v. Willis, 831 N.E.2d 531, 535-36 (Ill. 

2005)). The appellate court found that, although the length of detention was a factor for 

consideration to determine whether a confession is voluntary, Petitioner’s claim did not 

challenge the voluntariness of his confession. (Sept. 19, 2005 Appeal Order at 39.) 

Furthermore, Petitioner raises the issue that his confession was involuntary for the first 

time in his Reply. (Reply at 9.) This claim is procedurally defaulted because the issue was not 

presented during the state court’s appellate process. Petitioner failed to provide any reason for 

the procedural default and any prejudice that may result, nor does he argue his procedural default 

must be overlooked to prevent a miscarriage of justice. Petitioner’s claim that his videotaped 

confession was involuntary is barred from habeas corpus review. 

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Ground IV: Ineffective Assistance of Trial Counsel

Petitioner alleges in his Writ of Habeas Corpus that his trial counsel’s failure to 

investigate mitigation evidence or present mitigating witnesses during his sentencing hearing 

constituted ineffective assistance of counsel. (Pet. at 16.) Although Petitioner does not 

explicitly assert his rights to due process and equal protection as the constitutional bases of his 

post-conviction petition, construed liberally, Petitioner’s claim asserts an alleged violation of his 

Sixth Amendment right to effective assistance of counsel. Petitioner presented this claim in his 

post-conviction petition for relief, which was dismissed by the trial court without an evidentiary 

hearing. On appeal, the Illinois Appellate Court rejected Petitioner’s ineffective assistance of 

counsel claim. The appellate court explained: 

To establish a claim of ineffective assistance, a defendant must prove: (1) 

counsel’s performance was deficient or fell below an objective standard of 

reasonableness; and (2) the defendant suffered prejudice as a result of the 

deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); 

People v. Ford, 368 Ill. App.3d 562, 571 (2006). “Prejudice is shown when there 

is a “reasonable probability” that, but for counsel’s ineffectiveness, the 

defendant’s sentence or conviction would have been different.” Ford, 368 Ill. 

App.3d at 571, citing People v. Mack, 167 Ill.2d 525, 532 (1995). A reasonable 

probability is defined as “a probability sufficient to undermine confidence in the 

outcome” of the proceeding. Strickland, 466 U.S. at 694. 

In assessing an ineffective claim, the court must give deference to counsel’s 

conduct within the context of the trial and without the benefit of hindsight. 

People v. King, 316 Ill. App.3d 901, 913 (2000); People v. Tate, 305 Ill. App.3d 

607 (1999). “As such, ‘a defendant must overcome the strong presumption that 

the challenged action or inaction of counsel was the product of sound trial 

strategy and not incompetence.’” (Emphasis in original.) King, 316 Ill. App.3d at 

913, quoting Coleman, 183 Ill.2d 366, 397 (1998). 

(June 30, 2011 Appeal Order at 10-11.) The appellate court explained that Petitioner’s trial 

record reflected mitigating evidence was presented during the sentencing hearing. (Id. at 17.) 

Specifically, the appellate court found Petitioner’s attorney: 

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[A]rgued to the court in mitigation that defendant was from “a very good” and 

“hard working” family, that the court had already heard testimony from 

defendant’s brother and sister on defendant’s behalf during the pre-trial 

suppression hearing, and that defendant’s family had been present throughout the 

trial proceedings and at the sentencing hearing itself. Counsel also highlighted to 

the court that defendant had been gainfully employed for a period of time prior to 

the incidence, that defendant had broken off all ties with the street gang after the 

shooting, that defendant had “matured” in the couple years since the shooting had 

occurred, and that defendant deserved the minimum sentence because he was not 

the actual shooter and had cooperated with the police during their investigation of 

the crime. 

(Id. at 17-18.) 

The court reviewed the record and found the mitigation evidence, namely, his family’s 

testimony, was cumulative of the evidence presented by the attorney during the sentencing 

hearing to the court. (Id. at 18.) As such, the appellate court found the additional mitigation 

evidence would not have affected the outcome of the sentencing hearing given that the weight of 

the mitigating factors was diminished by the weight of the aggravating factors of the offense. 

(Id. at 19.) Because Petitioner did not establish he was prejudiced by his trial counsel’s 

purported failure to present mitigating testimony, Petitioner’s claim failed to “establish a 

substantial showing of a constitutional violation.” (Id. at 20.) 

The appellate court’s decision regarding Petitioner’s ineffective assistance of counsel 

claim was not contrary to federal law. The appellate court correctly articulated the standard to 

evaluate ineffective assistance of counsel claims, namely, the standard articulated by the United 

States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland, 

a petitioner must show that his legal representation “falls ‘below an objective standard of 

reasonableness,’ as indicated by ‘prevailing professional norms,’ and the defendant suffers 

prejudice as a result.” Chaidez v. United States, 133 S.Ct. 1103, 1107 (2013) (quoting 

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Strickland, 466 U.S. at 687-688). Petitioner failed to meet the Strickland standard, and thus, this 

third ground upon which he asserts habeas corpus relief is rejected. 

Ground V: Ineffective Assistance of Appellate Counsel 

The fifth claim set forth in the habeas corpus petition fails because it is procedurally 

defaulted. Specifically, Ground V of the petition is procedurally defaulted because Petitioner 

failed to present this issue at every level in the state court system. Here, Petitioner alleges 

ineffective assistance of his appellate counsel for failing to raise his trial counsel’s 

ineffectiveness because he did not object to statements made during the prosecution’s closing 

arguments. (Pet. at 20.) While Petitioner presented his ineffective assistance of counsel claims 

in his post-conviction petition for relief, this claim was not presented to the Illinois Supreme 

Court for review in accordance with the exhaustion requirement of 28 U.S.C § 2254(b)(1). 

Therefore, Petitioner’s ineffective assistance of counsel claim presented is procedurally 

defaulted. Petitioner’s procedural default cannot be overlooked because he does not explain the 

reason for his procedural default or any prejudice that might result, nor does he present an 

argument that his claim must be reviewed to prevent a miscarriage of justice. 

 Even if the claim of ineffective assistance of appellate counsel was not procedurally 

defaulted, it is barred from habeas corpus review because the appellate court’s finding is not 

contrary to federal law. The appellate court rejected Petitioner’s claim, reasoning: 

A court also uses the Strickland analysis to determine the adequacy of appellate 

counsel. People v. Easley, 192 Ill.2d 307, 328-29 (2000). Moreover, we note 

“[a]ppellate counsel is not obliged to brief every conceivable issue on appeal, and 

it is not incompetence of counsel to refrain from raising issues which, in his or her 

judgment, are without merit, unless counsel’s appraisal of the merits is patently 

wrong.” Easley, 192 Ill.2d at 329. Therefore, unless the underlying issue is 

meritorious, a defendant has suffered no prejudice from appellate counsel’s 

alleged failure to raise it on appeal. Easley, 192 Ill.2d at 329, citing People v. 

Childress, 191 Ill.2d 168, 175 (2000). 

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Prosecutors are afforded wide latitude in closing arguments. People v. Brooks, 

345 Ill.App.3d 945, 951 (2004); People v. Walker, 262 Ill.App.3d 796, 804 

(1994). Improper comments or remarks are not reversible error unless they are 

either a material factor in the conviction or cause substantial prejudice to the 

defendant. Brooks, 345 Ill.App.3d at 951. A trial court can correct any error 

resulting from an improper remark by sustaining an objection or instructing the 

jury. Brooks, 345 Ill.App.3d at 951. 

(June 30, 2011 Appeal Order at 20-21.) 

After applying the Strickland test to assess the validity of Petitioner’s claim, the appellate 

court rejected the Petitioner’s claim. (Id. at 22.) During the prosecution’s closing arguments at 

trial, the prosecutor referred to Petitioner as a “coward” and the “cowardly lion king” on several 

occasions. (Id.) The prosecutor also urged the jury “to stand up to the Latin Kings, to tell them 

there’s nothing noble about what they do.” (Id.) The appellate court assessed the closing 

arguments as a whole, as well as the evidence presented against Petitioner, and found the 

prosecutor’s statements, even if improper, were not sufficient to cause “substantial prejudice” to 

Petitioner or “constitute a material factor in the conviction.” (Id.) The appellate court also noted 

that any alleged error that resulted from the prosecutor’s statements was minimized with jury 

instructions regarding the role of the parties’ closing arguments. (Id.) Had this issue been raised 

on direct appeal, the prosecutor’s conduct would not have amounted to reversible error. (Id.) 

The appellate court concluded that because Petitioner failed to demonstrate the alleged 

prosecutorial misconduct claim would have been meritorious if it was raised on direct appeal, 

Petitioner’s constitutional right to effective assistance of counsel was not violated. (Id.) The 

appellate court did not err in its application of the Strickland standard to Petitioner’s claim of 

ineffective assistance of appellate counsel; accordingly, this ground asserted for habeas corpus 

relief also fails. 

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Certificate of Appealability 

“A certificate of appealability may issue . . . only if the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the aforementioned 

reasons, Petitioner has failed to substantially demonstrate that he has been denied a constitutional 

right. To demonstrate the denial of a constitutional right, a petitioner must demonstrate that 

“reasonable jurists could debate (or, for that matter, agree that) the petition should have been 

resolved in a different manner or that the issues presented were ‘adequate to deserve 

encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 and n.4 (1983)). “Where a plain procedural bar is present 

and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not 

conclude either that the district court erred in dismissing the petition or that the petitioner should 

be allowed to proceed further. In such a circumstance, no appeal would be warranted.” Slack, 

529 U.S. at 484. Accordingly, because Petitioner has failed to make a substantial showing of the 

denial of a constitutional right in his petition, a certificate of appealability will not issue. 

CONCLUSION 

For the reasons set forth above, Fernando Gomez’s Petition for Writ of Habeas Corpus, 

pursuant to 28 U.S.C. § 2254, is denied. A certificate of appealability will not issue. 

Date: 10/30/13 ______________________________ 

 JOHN W. DARRAH 

 United States District Court Judge 

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