IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

United States of America ex rel. 

 KEVIN BIRDO 

Petitioner, 

 v. 

KIM BUTLER, Warden, 

 Menard Correctional Center,1

Respondent.

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No. 12 C 05748 

Judge John J. Tharp, Jr. 

MEMORANDUM OPINION AND ORDER 

Petitioner Kevin Birdo is currently incarcerated at Menard Correctional Center, where he 

is serving a sentence of seven and a half years for aggravated battery of a peace officer arising 

from an incident that occurred on a prison bus. Birdo brought a petition for a writ of habeas 

corpus pursuant to 28 U.S.C. § 2254, in which he raised four grounds for relief, three of which 

were denied in this Court’s December 12, 2013 Memorandum Opinion and Order (Dkt. 33). As 

to the fourth claim, which was related to Birdo’s trial attorney’s ineffective assistance for failing 

to investigate whether the bus driver, David Young, could provide testimony corroborative of 

Birdo’s account of the incident, the Court concluded that Birdo might be entitled to a limited 

evidentiary hearing. After an investigation by the petitioner’s appointed counsel and a series of 

status hearings and filings in which the parties reported their respective positions, this Court 

denies Birdo’s petition as to Claim D. 

I. BACKGROUND2

1

 The current warden of the Menard Correctional Center, Kim Butler, has been 

substituted for the original respondent, Marcus Hardy. See Fed. R. Civ. P. 25(d); Rule 2(a) of the 

Rules Governing Section 2254 Cases in the United States District Courts. 
2

The facts relevant to this matter are set forth in detail in Birdo v. Pfister, 2013 WL 

6514100 (N.D. Ill. Dec. 12, 2013). Here, the Court provides a short summary of only those facts 

that are relevant to Claim D. On March 27, 2000, a grand jury indicted Birdo for aggravated 

battery pursuant to 720 ILCS 5/12-4(b)(6). Birdo was tried and convicted of aggravated battery 

twice by a jury. Logan County assistant public defender Jeff Page was appointed to represent 

Birdo at both trials. The charge derived from an incident during the transfer of inmates at the 

Logan Correctional Center in Lincoln, Illinois on January 12, 2000. Birdo was charged with 

punching a correctional officer several times and spitting in his face next to the Menard 

Correctional Center transfer bus while it was stopped at Logan. One officer testified at both trials 

that the driver of the bus was Officer David Young, but that Young was not on the bus at the 

time of the incident. Dkt. 15-15 at 140, 147. Birdo testified at his first trial that when he 

attempted to board the bus because he was cold, “I believe the bus driver said – he made some 

type of derogatory statement ... I’m not for sure exactly what he said, but he made a statement 

that was – I guess you could say it was racial. I mean, he said something about I guess we’re 

going to have some fudge sickles, or something like that, for dessert.”3 Id. at 190. Another 

inmate testified at the first trial only that an officer inside the bus “made some sort of a humorous 

2

 The facts in this opinion are principally derived from the state appellate court’s opinion 

affirming the trial court’s denial of Birdo’s petition for post-conviction relief. People v. Birdo,

No. 4-10-0198 (Ill. App. Ct. 4th Dist. Oct. 14, 2011). The state court’s factual findings are 

presumed to be true, and Birdo has the burden of rebutting that presumption by clear and 

convincing evidence. 28 U.S.C. § 2254(e)(1); Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 

2012). Certain procedural facts are also derived from Birdo’s pleadings in state and federal court, 

as well as from transcripts of hearings in state court. 

3

 At Birdo’s second trial, Birdo testified, “The bus driver interjected and said some type 

of derogatory comment and they laughed about it. He said something to the effect that I felt 

racially insensitive. I don’t know if he meant it to be, but he said something to the effect I guess 

we are going to have fudge sickles for dessert. He and the other officers laughed about it ... I just 

asked the inmate that was standing there, I said did you hear what he just said.” Id. at 166-68. 
3

comment about it ... I remember him laughing about it ... He was basically mocking him.” Id. at 

166-67.

On the morning of the second trial, Birdo (although still represented by Page) submitted a 

pro se motion to dismiss the indictment, arguing that Page was ineffective for, among other 

reasons,

not promptly comply[ing] with the defendant’s reasonable request 

for information regarding the bus driver whose name the defendant 

does not know, but is absolutely sure was physically involved and 

present during the entire alleged incident. During the trial the 

defendant informed his attorney that Mr. Cowan was not involved 

but instead a bus driver was. After the trial the defendant requested 

information regarding the bus driver and after the new trial was 

ordered the defendant still sought information regarding this 

material witness and this request was never responded to or 

fulfilled by Mr. Jeff Page. 

Dkt. 15-13 at 34. Birdo also requested a continuance so that he could attempt to find the bus 

driver. Dkt. 15-6 at 229. The motions were denied. 

Birdo raised his claim regarding Page’s ineffective assistance for failing to investigate the 

bus driver in his direct appeal and in his post-conviction petition.4

 At an evidentiary hearing on 

Birdo’s post-conviction claim, Page testified that he did not subpoena the bus driver at either 

trial. “From what I remember I don’t even believe I had a report from [the State’s Attorney’s 

office] on this bus driver, and quite frankly from my recollection I don’t recall him ever giving a 

4

 Birdo argued in his post-conviction petition:

[D]espite numerous requests by the defendant, Attorney Page 

failed to conduct any investigation as to the presence and/or 

participation of the bus driver. While the written statements of eyewitnesses, together with those of the defendant, placed the driver at 

the scene at the time of the incident, the State’s witnesses testified 

under oath that the driver was not present.

Dkt. 15-6 at 269.
4

statement that would suggest that he knew anything about this altercation, that he saw it, or was 

even present for this alleged altercation.” Page acknowledged, however, that Birdo told him that 

Young was present (“Mr. Birdo did mention that, yes.”) and that it would not have been hard to 

track him down (“I guess I could have done that.”). Dkt. 15-21 at 19-21, 23-24. The circuit court 

granted the State’s motion for a directed finding, but did not mention in its ruling Birdo’s claim 

as to the bus driver.

 Birdo appealed, and the Illinois Appellate Court recognized that, “In its oral 

pronouncement, the [circuit] court did not analyze or mention Page’s conduct of not contacting 

Young.” Dkt. 15-10 at 9. It went on, however, to “find the court’s analysis would apply equally 

to Young,” denying the appeal. Id. The court added that the failure to investigate a witness “that 

purportedly had no knowledge cannot constitute substandard performance.” Id. The Illinois 

Appellate Court summarily denied Birdo’s petition for rehearing. Dkt. 23-2 at 1. Birdo petitioned 

for leave to appeal to the Illinois Supreme Court; that petition was also summarily denied. 968 

N.E.2d 83 (Ill. 2012). On July 23, 2012, Birdo filed a habeas corpus petition in federal court.

II. ANALYSIS 

In its December 2013 Memorandum Opinion and Order, this Court concluded that, with 

respect to Claim D, the Illinois Appellate Court’s application of Strickland to the facts before it 

was unreasonable.

As to Page’s performance, this Court found that the appellate court wrongly treated an 

absence of evidence about Young’s knowledge as affirmative evidence that Young had no 

knowledge about the incident, while ignoring evidence—in the form of two witness affidavits 

and Birdo’s testimony—asserting that Young was present. Moreover, this Court noted that there 

was evidence that Page had reason to believe Young may have been present during the incident 
5

and that he had ignored Birdo’s pleas to investigate. This Court also concluded that Page was 

ineffective for relying solely on the absence of information in the State’s discovery and ignoring 

information from his own client, corroborated by two witnesses. 

As to prejudice, this Court concluded that the appellate court assumed, based on the 

evidence before it, that Young would have been an unhelpful witness (“a witness that 

purportedly had no knowledge,” Dkt. 15-10 at 9), but there was virtually no basis to draw that 

conclusion. The appellate court did not know what, if anything, Young had to say about the 

incident or whether that testimony would create a reasonable probability that the outcome of 

Birdo’s trial would have been different. Since the State’s case at the second trial rested heavily 

on the testimony of two correctional officers, and Birdo’s case rested heavily on his own 

testimony, the potential corroboration by a correctional officer testifying for the defense may 

have created reasonable doubt as to Birdo’s guilt in the eyes of the jury.

This Court then asked the remaining unresolved question: whether Birdo was in fact

prejudiced; i.e., whether there is a reasonable probability that Young’s testimony would have 

altered the outcome of Birdo’s trial. The Court explained that if Birdo could not make this 

showing, his claim would fail on the merits. 

The Court next appointed counsel and an investigator and gave that counsel the 

opportunity to locate David Young and to interview him about the incident. Birdo’s counsel and 

investigator interviewed Mr. Young on May 13, 2014, in Red Bud, Illinois, for approximately 

one and one half hours. Mr. Young stated that he is now retired but that he had been a bus driver 

for the Illinois Department of Corrections until 2004 and was based at the prison in Menard. 

Affidavit of John D. Rea (May 18, 2014) ¶¶ 2-3, 5. He also stated that he knew Officers Wagner 

and Cowan—the two officers involved—well and that they were frequently on the bus he drove 
6

from Menard to Logan. Id. ¶ 4. Mr. Young stated that he did not recall any incident in the 

transfer yard at Logan in January 2000 during which Officer Wagner and an African American 

inmate were in an altercation on the entry stairs to the bus. Id. ¶ 6. He added that he recalled 

other, more serious incidents involving altercations with other inmates, but not this one. Id. ¶ 6. 

After Birdo’s counsel and investigator described more details regarding the incident to Mr. 

Young, Mr. Young stated that he still had no recollection of the incident. Id. ¶ 7. Mr. Young then 

“volunteered that if he had been asked about it in 2002 or 2003, he expected that he would have 

recalled the incident.” Id.

Birdo’s counsel and investigator also asked Mr. Young about the “fudgesickles” 

comment that Birdo attributed to him; Mr. Young “was taken aback by the question. He stated 

emphatically, ‘I would not have said that.’ He repeated that response.” Id. ¶ 8. Birdo’s counsel 

reported that Mr. Young’s “eyes distinctly widened” and it was clear to the investigator “that he 

had not anticipated getting that question.” Id.

Based on the foregoing, it is now apparent to this Court that there is not a reasonable 

probability that Young’s testimony would have altered the outcome of Birdo’s trial.5

 Rather, 

counsel’s interview of Mr. Young casts further doubt on whether Young would have 

corroborated Birdo’s version of events. To begin, Mr. Young has no memory of the Birdo 

incident; he did not recall it at all, a fact that suggests that, consistent with the testimony of other 

officers at the trial, he was not present. While Mr. Young acknowledged that he may have simply 

5

 Birdo’s appointed counsel asserts in his submission to this Court that an evidentiary 

hearing is unnecessary unless the Respondent takes issue with the affidavit submitted regarding 

Young’s interview. The state has not objected to the affidavit or otherwise contested the 

accuracy of the account of the interview of Mr. Young by Birdo’s counsel. Accordingly, the 

Court’s assessment is based on the Memorandum in Support of Petition (Dkt. 50) submitted by 

Birdo’s counsel, including the supporting affidavit of investigator John Rea, which sets forth the 

substance of the interview with Mr. Young. 
7

forgotten the incident,6

 that inference is significantly weaker than the inference that he was not 

present at the time, given his complete lack of recollection of the incident even after Birdo’s 

counsel and the investigator provided him with a detailed recitation of the facts based on the trial 

transcripts. The inference that Young was not present is also made stronger by the facts that 

Young (i) recalled a number of other altercations involving inmates and incidents and (ii) knew 

Officers Wagner and Cowan well, making it likely, as Birdo’s counsel assumed, that his memory 

of the event would have been reinforced by some subsequent discussion with Wagner and/or 

Cowan about the incident (had he been present).

Further, it seems clear that, even if Young had been present during the incident, he would 

not have backed Birdo’s version of events. As Birdo related the facts, Young precipitated the 

altercation to some degree by making an apparently racist comment to the effect that the black 

inmates waiting to board the bus, like Birdo, would be turning into “fudgesickles” due to the 

freezing temperatures. Young emphatically denied that he would ever make such a statement, so 

there is no basis to believe that he would have done anything but dispute Birdo’s testimony in 

that regard had he been questioned about the incident more contemporaneously. Moreover, 

Investigator Rea’s affidavit makes clear that “Young was taken aback by the question” and was 

not expecting it; his surprise at the question further confirms his lack of recollection of the 

incident and the fact that he was likely not present at the time; had he contributed to the fracas by 

6

 In light of Mr. Young’s complete lack of recollection about the incident, his statement 

to Birdo’s counsel that had he been asked about the incident in 2002 or 2003 he “expected that 

he would have recalled” it can only be interpreted as an acknowledgment that his lack of 

recollection could be a product of the passage of time rather than lack of presence on the bus, 

and does not provide a reasonable basis to conclude that he would have been able to testify about 

the incident had he been asked about it at the time of Birdo’s trials. As Birdo’s counsel concedes, 

Young’s statements are not adequate even to establish that he was on the bus at the time of the 

incident. Dkt. 50 at ¶ 17 (“The other [unknown at this point] is whether Officer Young was 

actually on the bus when the incident happened.”) 
8

making a racist statement, it seems likely that he would have some recollection of that fact. Mr. 

Young could, of course, be covering up his own embarrassing contribution to this incident,7

 but 

if that is the case, there is little reason to believe that he would not have behaved similarly if the 

same questions had been put to him ten years ago (indeed; he might have had more to lose at that 

point, when he still had several years to go until retirement). 

Mr. Young may or may not have remembered the incident had Page asked him about it in 

2002 at the time of Birdo’s first trial, but at this point in time, Birdo has presented no reason to 

believe Mr. Young would have bolstered Birdo’s version if he did remember it. Since Birdo has 

given this Court no basis to believe that Mr. Young would have been a helpful witness to Birdo, 

and since instead this Court is now presented with further doubt as to Mr. Young’s helpfulness, 

Birdo has not shown the requisite prejudice for his ineffective assistance of counsel claim. 

To the extent that Birdo argues in his own submissions to the Court [53, 54] that he is 

nonetheless entitled to an evidentiary hearing, those motions are denied. This Court appointed 

counsel for Birdo to locate Mr. Young and interview him. Counsel completed that task with 

diligence and competence. Since this Court has now concluded that Birdo has not shown that he 

was prejudiced by Page’s ineffectiveness, Birdo is not entitled to an evidentiary hearing in 

federal court. 

III. CERTIFICATE OF APPEALABILITY 

Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254 

Proceedings, the “district court must issue or deny a certificate of appealability when it enters a 

final order adverse to the applicant.” Accordingly, the Court must determine whether to grant 

7

 The Court hastens to add that it is in no way suggesting that Mr. Young was anything 

but truthful in responding to the questions from Birdo’s counsel and investigator, who described 

Mr. Young as cooperative and straightforward. 
9

Birdo a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) in this order. A habeas 

petitioner does not have the absolute right to appeal a district court's denial of his habeas petition. 

Instead, he must first request a certificate of appealability. See Miller–El v. Cockrell, 537 U.S. 

322, 335 (2003); Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 2009). A habeas 

petitioner is entitled to a certificate of appealability only if he can make a substantial showing of 

the denial of a constitutional right. See Miller–El, 537 U.S. at 336; 28 U.S.C. § 2253(c)(2). 

Under this standard, Birdo must demonstrate that “reasonable jurists could debate whether (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.” Miller–El, 537 

U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Here, jurists of reason would not debate the Court's conclusion that Birdo’s four claims 

fail because the denial of Birdo’s motion to substitute the judge did not violate due process 

(Claim A), because Claims B and C are not cognizable in federal habeas review, and because 

Birdo has not shown the requisite prejudice to succeed on his ineffective assistance of counsel 

claim (Claim D). Therefore, the Court declines to certify any issues for appeal pursuant to 28 

U.S.C. § 2253(c)(2). 

* * * 

For all of these reasons, the Court denies Birdo’s petition for a writ of habeas corpus and 

declines to certify any issues for appeal. See 28 U.S.C. §§ 2253(c)(2), 2254(d). 

Entered: August 5, 2014 John J. Tharp, Jr. 

United States District Judge