IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

United States of America ex rel. ) 

DEMOND COLE, ) 

 ) 

 Petitioner, ) 

 ) 

 vs. ) Case No. 12 C 4591 

 ) 

MARCUS HARDY, Warden, ) 

Stateville Correctional Center, ) 

 ) 

 Respondent. ) 

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge: 

 An Illinois jury convicted Demond Cole1

 of first degree murder and attempted 

murder. The trial judge sentenced him to prison terms totaling seventy-one years. Cole 

has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

 In his petition, Cole asserts six claims. Respondent contends that two of these 

claims are not cognizable in a federal habeas corpus petition, one of the claims is 

procedurally defaulted, and the state courts reasonably decided the remaining three 

claims on their merits. In his reply, Cole concedes that two of his claims are not 

cognizable in this case. 

 For the reasons stated below, the Court denies Cole’s petition. 

1

 The Court will refer to Demond Cole as “Cole” but, to avoid confusion between family 

members involved in this case, the Court will refer to several other individuals by their first 

names.

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Background

A. State court proceedings 

 1. The shooting and Cole’s trial

 Cole admits that he shot Terrence Turentine (Terrence) on September 15, 2001 

at approximately 1:30 a.m., while Terrence was driving a 1985 GMC van near the 

corner of 87th Street and Martin Luther King Drive. Terrence’s uncle, Larry Turentine 

(Larry), and his friend, known only as “K.D.,” were also in the van but were not hurt in 

the shooting. Cole contends that Terrence was shooting at Cole’s vehicle, a 1980 

Chevrolet Caprice, and that he shot at Terrence’s van in self-defense. 

 Cole’s trial began with jury selection on April 26, 2004. Early that same morning, 

the prosecution sought to amend the charge of attempted first degree murder.

Specifically, it asked to change the language in the original indictment that accused 

Cole of having “shot Larry Turentine about the body” to language accusing him of 

having “shot at Larry Turentine . . .” Ex. S at A-6–A-7; Ex. P at C-38. Defense counsel 

objected, arguing that the proposed amendment was a substantive change to the 

charge and that only a grand jury could appropriately amend the indictment. The trial 

judge overruled defense counsel’s objection, concluding that the amendment comported 

with the testimony at the grand jury proceedings held in October 2001. 

 At Cole’s trial, Larry Turentine testified that Terrence was driving south on Martin 

Luther King Drive with Larry and K.D. when he was forced to stop because Cole’s 

Chevy Caprice and another car were stopped in the street and were blocking both 

lanes. According to Larry, the road was too narrow to drive around the cars, so 

Terrence waited for a few minutes and then “started blowing the horn because they 

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continued to talk.” Ex. T at C-44. Cole turned around and smiled at the van but did not 

move his car. After Terrence honked the van’s horn again with no response, he tried to 

maneuver the van around the Caprice. 

 Larry testified that Cole refused to let the van pass his car. As the van 

accelerated southbound to pass the cars, Cole began to drive southbound as well, just 

beside the van. Cole pulled ahead and began swerving back and forth in the road in an 

apparent attempt to prevent the van from passing him. Terrence slowed down, but Cole 

slammed the brakes of his car, forcing Terrence to hit the back of the Caprice. Cole 

again accelerated and continued southward down King Drive past 87th Street.

Terrence turned left onto 87th Street and drove eastward. He drove for approximately 

one block when he, Larry, and K.D. noticed that Cole had turned his car onto 87th 

Street and was a half-block behind them. When Terrence saw the Caprice, he made a 

U-turn on 87th Street to face Cole’s car, which was still headed eastbound. 

 As Cole’s car came closer to the van, Larry saw that there was another person in 

the car. Larry testified that as Cole drove past the van, he “pulled a gun out and leaned 

back . . . and started firing in the van.” Id. at C-54–C-55. Larry testified that one of the 

bullets hit Terrence in the back of the head, and he immediately fell toward the middle of 

the car. K.D. took the wheel and drove toward Provident Hospital. At some point along 

the way, Larry spotted a police car. Larry testified that he “told the police that [his] 

nephew had just got[ten] shot” but did not receive any response from the police officers. 

Id. at C-59. K.D. and Larry got back into the van and continued toward Provident 

Hospital. They arrived at the hospital at approximately 1:30 a.m. on September 15.

Terrence died a few hours later from the gunshot wound. K.D. left the hospital at some 

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point soon afterward, and as of the time of Cole’s trial, the prosecution could not locate 

him.

 Felicia O’Neal, who in September 2001 was dating Cole’s brother, Joseph Cole 

(Joseph), also testified. According to O’Neal, Cole came to Joseph’s house on 

September 15 at approximately 1:30 a.m., carrying a gun in his hand. He put the gun 

under the mattress in an adjoining room where he was staying and told Joseph that he 

had been in a car accident. O’Neal testified that she, Joseph, and Cole all went outside 

to inspect the car. The prosecutor showed O’Neal photographs of the Chevy Caprice 

and O’Neal testified that they accurately depicted how the car appeared on September 

15.

 According to O’Neal, while they were outside, Cole twice told Joseph and O’Neal 

that he had killed someone and laughed. Cole told them that he needed to “get out of 

here,” and he left the house. Id. at C-162. O’Neal testified that someone eventually 

removed the gun from under the mattress but that she could not remember who 

removed it. 

 On cross-examination, O’Neal admitted that she did not contact the police about 

the events of September 15 until Joseph was taken into custody in October 2001.

O’Neal also stated that when she and Joseph went outside to inspect the Caprice, she 

noticed a half-inch hole in the back window of the car. 

 Detective Robert Myers testified about his investigation regarding the September 

15 shooting. According to Myers, Terrence’s aunt, Laverna Turentine, called him in 

early October 2001 with information about the shooting. After speaking with her and 

subsequently interviewing Larry Turentine, Myers gathered information regarding the 

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Chevy Caprice that Cole had been driving the night of the shooting. Myers learned that 

the vehicle was registered to Joseph and brought Joseph to the police station for 

questioning. Myers called Larry to view a line-up that included Joseph. When Larry 

viewed the line-up, he “stated that Joseph Cole resembled the person who had shot and 

killed Terry Turentine.” Ex. V at E-26. After speaking with both Joseph and O’Neal, 

Myers testified, he went to Joseph’s house to look for Cole and Ezra Washington, the 

other individual who had been in the Chevy Caprice with Cole on the night of the 

shooting. On October 13, Myers detained both Cole and Washington and questioned 

them about the shooting. The police also impounded the Chevy Caprice. 

 Myers testified that police conducted a custodial search of the two men and 

found approximately six grams of cannabis in Washington’s possession. They arrested 

Washington and charged him, but he was never convicted of any crime involving the 

cannabis. During his trial testimony, discussed in further detail below, Washington 

denied possessing any cannabis. He stated that he was released from custody as soon 

as he testified against Cole before the grand jury and that the police told him not to 

“worry about” those charges. Ex. U at D-134. 

 Shortly after taking Cole into custody, Myers arranged for Larry to return to the 

station and view another line-up—this time with Cole in the line-up rather than his 

brother. Myers testified that Larry identified Cole as the shooter. Myers also showed 

Larry pictures of Joseph’s Chevy Caprice, which Larry identified as the car used in the 

shooting. When confronted with this identification, Cole denied being involved in a 

shooting and told the police that the Caprice had been damaged in a traffic incident the 

previous winter. 

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 The prosecution also called Ezra Washington to testify. His trial testimony 

tended to support a claim of self-defense on Cole’s part. Washington stated that he and 

Cole stopped on Martin Luther King Drive to talk to the driver of another car and that at 

some point, a van pulled up behind them headed south. He stated that the road was 

sufficiently wide for the van to pull around but the van’s driver refused to do so and 

began erratically flashing the van’s lights and honking the horn. According to 

Washington, he and Cole were confused and were scared they didn’t know what the 

occupants of the van were doing. They drove away, but the van chased them. A few 

blocks later, the van bumped the Caprice so hard that it ran the Caprice off of the road 

and onto the sidewalk. Washington stated that Cole appeared very scared and backed 

the car onto the road. After they turned onto 87th Street to drive back to their 

neighborhood, Washington saw the van ahead of them. It made a U-turn and drove 

toward the Caprice. Washington testified that the van struck the Caprice. Just before 

impact, Washington and Cole saw that the driver of the van had a gun and was pointing 

it at Cole. The two men ducked. Washington stated that although he did not see Cole 

pick up his gun, a few seconds later Cole was shooting behind the car toward the van 

as they drove away. Washington testified that the back window of the car “got shot out” 

by an occupant of the van, not by Cole. Id. at D-33. 

 After eliciting Washington’s version of events, the prosecution introduced 

previous statements that Washington had made that inculpated Cole and were 

inconsistent with Washington’s trial testimony. Washington had previously given a 

statement to police after he was arrested, and he had also testified before the grand 

jury. On both occasions, Washington stated that he and Cole were sitting in the Chevy 

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Caprice facing southward on Martin Luther King Drive when the van tried to get around 

the car. In the process of that attempt and Cole’s efforts to block the van, “the van 

bumped [Cole’s] car lightly from the back . . . .” Id. at D-69. Cole then swerved to 

prevent the van from passing him, but at some point he drove onto the curb, and the 

van was able to pass the Caprice. The van turned east onto 87th Street, and Cole 

followed. The van then made a U-turn and started to head west, facing the Caprice.

According to Washington’s earlier statements, Cole stopped the Caprice and pulled out 

a handgun from under the driver’s seat. As the van drove by, Cole shot at the van at 

least four times. The van stopped, and Cole drove away eastward on 87th Street.

Washington said that Cole was the only one with a gun. He saw the bullet hole in the 

back window of the car, and he told police that he knew it was from Cole’s gun because 

there were no other guns involved. 

 In his earlier statements, Washington said that he and Cole then drove to 

Joseph’s house, where Cole told Joseph that he had shot the driver of the van because 

the van had hit the Caprice. Cole explained to Joseph that he had shot out the 

Caprice’s back rear window during the incident. Later in the weekend, Washington 

overheard Cole bragging that “a guy hit his car and he shot him.” Id. at D-119. 

 Washington testified on cross-examination that his earlier statement to police and 

his earlier grand jury testimony were false. He testified that when first arrested, he told 

the police that the driver of the van had a gun and began the confrontation, but the 

police and Assistant State’s Attorney Bronwyn Sears (who initially interviewed him 

about the shooting) rejected his description of the incident and told him that he was 

going to jail. Washington wrote a few handwritten statements, which the police rejected, 

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but eventually a new assistant state’s attorney came to visit him and took the statement 

that became Washington’s official statement to police. Washington stated that the 

others were discarded. 

 Sears, two other assistant state’s attorneys involved in the case, and Detective 

Myers all denied most of Washington’s testimony, including his contention that he had 

given multiple statements while at the police station. They also all denied any attempts 

to influence or dictate the contents of Washington’s statement in any way. 

 Cole did not present any witnesses in his defense. His trial counsel argued in 

closing argument that Cole shot at the GMC van to protect himself after seeing 

Terrence Turentine pointing a gun at him. Defense counsel argued that Washington 

had testified truthfully in court and that he lied in his earlier statements after the police 

repeatedly told him that they would not release him unless he inculpated Cole. Counsel 

argued that O’Neal’s statement to police was also inaccurate and was the product of her 

desire to free her then-boyfriend (Joseph Cole) from police custody. Finally, counsel 

argued that Larry Turentine’s testimony was not credible. Among the various reasons 

he gave for not believing Larry’s account of events, counsel questioned why Terrence 

refused to turn onto a side street to take an unobstructed route after it became clear that 

Cole did not intend to allow the van to pass through. He questioned why, if the men in 

the van were trying to get away from the Chevy Caprice, Terrence would have made a 

U-turn so that he was directly facing Cole’s car. Defense counsel concluded his 

argument as follows: 

I have argued for self-defense here, ladies and gentlemen, that the actions 

are justified on an early morning when a van turns, stops, comes back 

towards you after contact just a short time before; when a weapon is seen 

in that van as to the reason, ladies and gentlemen, I would argue that the 

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van could turn around, stop, not go any place, not go to the girl’s house or 

not go home; not go down a side street, but stop there and do their form of 

justice.

I believe that’s the proper and just verdict, that Mr. Cole used self-defense 

that night, and he should be found not guilty and he is not guilty of the 

attempt[ed] murder of Larry Turentine. 

Ex. W at F-48–F-49. 

 The prosecution began its rebuttal argument by stating that “[a]fter an argument 

like that it is no wonder Chicago is the murder capital of the world.” Id. at F-49. The 

trial court overruled defense counsel’s objection. The prosecution repeated these types 

of statements throughout its rebuttal argument: 

No wonder that we have the highest rate of homicide in the world, when 

someone can take the position that because someone got into a traffic 

altercation they deserve a bullet in the brain; that someone did not make a 

U-turn initially and walk away, that they deserve a bullet in the brain; that 

they sped off and then came to a stop when this guy was chasing them, 

they deserve a bullet in the brain. 

Id. The prosecutor also repeatedly referred to Cole as “Mr. self-defense” and “Mr. 

victim,” which the record clearly suggests was sarcasm. Id. at F-51, 71. The prosecutor 

characterized defense counsel’s argument as “incredible” and “offensive[.]” Id. at F-61.

He argued in conclusion to the jury that “this is not a true self-defense case. This is a 

26th street self-defense case.” Id. at F-52. 

 Both immediately before closing arguments and as part of the final jury 

instructions, the trial court told the jury that closing arguments are not evidence and that 

the jury should disregard any statement made by the attorneys that did not comport with 

the evidence presented at the trial. 

 On May 3, 2004, the jury found Cole guilty of first degree murder for the death of 

Terrence Turentine and guilty of attempting to commit first degree murder of Larry 

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Turentine. The jury also found that Cole had discharged a firearm that proximately 

caused Terrence’s death. 

2. Post-trial proceedings and appeal

 On May 24, Cole’s trial counsel filed a motion for a new trial. On July 6, 

however, Cole retained a new attorney, who filed an additional motion for a new trial on 

August 31. The trial court scheduled a hearing on the motions for September 7. On 

that date, Cole apparently filed a third motion pro se. In the second and third motions, 

Cole alleged that his trial counsel was constitutionally ineffective on a number of 

grounds, including counsel’s alleged failure to interview and present defense witnesses 

on Cole’s behalf. 

 At the hearing, Cole presented a number of witnesses who stated that they were 

willing to testify that Felicia O’Neal admitted she fabricated the statement she gave to 

police in October 2001, implying that her subsequent testimony at Cole’s trial was also 

false. Cole’s brother Joseph stated that his testimony before the grand jury in October 

2001 incriminating Cole was untrue. He stated at the post-trial hearing that the police 

forced him to make those statements in exchange for allowing him to return home after 

depriving him of food for four days. Joseph also testified that Assistant State’s Attorney 

Kathleen Lanahan, who escorted him to the grand jury to testify, threatened him with jail 

time if he did not testify favorable for the prosecution. 

 Cole also called a number of witnesses who testified that they saw bullet holes in 

the Chevy Caprice in the days immediately following the September 15 incident.

Clarence Magee, who lived near Cole, testified that there were two bullet holes in the 

front windshield of the Caprice, both the front and back windows on the driver’s side of 

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the car were gone, and the back windshield was also missing. 

 Lawrence Wayne, who was in the car stopped next to the Caprice on King Drive 

on September 15, testified that although he was not present during the shooting, he saw 

that the Caprice had significant window damage approximately ten minutes after the 

shooting. Specifically, he saw that the front windshield had two bullet holes in it, both 

the front and back windows on the driver’s side of the car were “busted out;” and the 

back windshield was missing. Ex. Y at N-126. On cross-examination, Wayne admitted 

that his memory of the night was poor. He also testified that although he saw glass 

inside of the car, he did not see any bullets in it. 

 Cole testified on his own behalf at the post-trial hearing. He testified extensively 

about various witnesses whom he had asked trial counsel to investigate and interview, 

and he stated that he consistently told counsel that he had acted in self-defense.

According to Cole, there were bullet holes inside the Chevy Caprice from Terrence’s 

gun, and a number of the windows of the car had been “shot up.” Id. at N-43. Cole 

stated that he had the windows replaced in the Caprice shortly after the incident. Cole 

said that he relayed all of the information concerning the damage to the Caprice and the 

bullet holes inside the car to trial counsel, who assured Cole that he would take 

photographs of the car and investigate his reports. 

 On cross-examination, Cole admitted that there were no bullet holes on the 

outside of the Chevy Caprice and testified that but for the windows which he replaced, 

the photographs that were used in his trial accurately depicted the car’s condition 

immediately following the shooting. Shortly after that statement, however, Cole testified 

that there was a bullet hole in the ceiling of the Caprice that had knocked some of the 

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paint off of the roof. 

 In response, the prosecution called ASAs Lanahan and Sears, who both testified 

that they never threatened Joseph to obtain incriminating testimony or suggested details 

to Joseph to include in his testimony. Sears further testified that while at the police 

station with Joseph, she never heard any police officer or detective make any threats or 

promises to Joseph in exchange for his statement to police. 

 The prosecution also called Mark Kusatzky, Cole’s trial attorney, who testified 

that Cole never told him that there were bullet holes inside of the Chevy Caprice. 

According to Kusatzky, the first time he learned that Terrence Turentine may have had 

a gun was when he interviewed Ezra Washington shortly before the trial. Kusatzky 

stated that at that point, the car had already been destroyed. 

 The trial judge denied all three of Cole’s motions for a new trial. He concluded 

that all of Cole’s witnesses “came into this courtroom and lied in their testimony.” Ex. 

AA at O-17. He explained that he was discrediting each defense witness’s testimony 

based on inconsistencies between witnesses and inconsistencies within the same 

witness’s prior signed statements. The judge accepted as credible Kusatzky’s 

testimony that neither Cole nor any other witness had ever told him about any bullet 

holes in the windows of the Chevy Caprice or inside of the car. 

 After denying Cole’s motions, the trial judge sentenced him to prison terms 

totaling seventy-one years. Cole appealed his conviction to the Illinois Appellate Court, 

asserting five grounds: (1) the trial court erred in allowing the prosecution to make 

improper statements during closing arguments; (2) the trial court violated his Sixth 

Amendment right to conflict-free counsel when it failed to inquire into a potential conflict 

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of interest based on trial counsel’s alleged concurrent representation of Cole and his 

brother Joseph; (3) trial counsel was unconstitutionally ineffective when he failed to 

request an instruction to the jury that it could draw an adverse inference against the 

prosecution based on the destruction of the Chevy Caprice; (4) the trial court improperly 

allowed the prosecution to amend the attempted first-degree murder charge; and (5) the 

trial court improperly calculated the amount of credit for time that Cole had already 

served in custody prior to his conviction. 

 On September 18, 2006, the Illinois Appellate Court affirmed Cole’s conviction 

but ordered that he be given the appropriate amount of credit for time served. Cole 

timely petitioned for leave to appeal to the Illinois Supreme Court on his four rejected 

claims. The court denied his petition in January 2007. Cole filed a post-conviction 

petition, alleging ineffective assistance of counsel on a number of grounds not relevant 

here. The Illinois state courts eventually dismissed those claims as well. 

B. Cole’s habeas corpus petition

 Cole has filed a pro se habeas corpus petition in this Court, asserting six claims.

First, Cole contends that his due process rights were violated when the prosecutor 

made improper comments in his rebuttal closing argument. Second, he claims that he 

was denied his Sixth Amendment right to conflict-free counsel based on trial counsel’s 

alleged representation of his brother, Joseph Cole. Third, Cole alleges that his trial 

counsel rendered ineffective assistance when he failed to request an instruction to the 

jury that it could draw an adverse inference against the prosecution for the destruction 

of the car Cole was driving on the night of the shooting. Fourth, he contends that he 

was denied due process and equal protection when the trial court allowed the 

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prosecution to amend the charge of attempted first-degree murder, which he argues 

was a substantive change that could properly be made only by a grand jury. Fifth, he 

alleges that the Illinois Appellate Court improperly interpreted Illinois Supreme Court 

Rule 651 when it decided that the rule did not apply to his privately retained counsel and 

his actions in preparing the post-conviction petition. Finally, Cole claims that to the 

extent that Rule 651 does not apply to his post-conviction counsel, that rule violates his 

rights to due process and equal protection. 

 In its answer, respondent argued that Cole’s first four claims fail on the merits 

and that his fourth claim was not fairly presented to the state courts as a constitutional 

claim. Respondent contends that Cole’s last two claims are based on state law and are 

not cognizable in a federal habeas petition. In his reply, Cole concedes that his fifth and 

sixth claims, concerning Illinois Supreme Court Rule 651, are not federally cognizable. 

The Court will address the remaining four claims in turn. 

Discussion 

 Before seeking a federal writ of habeas corpus, a state prisoner must exhaust 

available state remedies by giving the state courts an opportunity to consider the 

alleged violation of his federal constitutional rights. This requires the petitioner to “fairly 

present” his claim to the state courts, “thereby alerting [them] to the federal nature of the 

claim.” Baldwin v. Reese, 541 U.S. 27, 32 (2004); 28 U.S.C. § 2254(b)(1)(A). A 

petitioner who fails to properly assert a federal claim before the state courts has 

procedurally defaulted the claim, which means that federal court review of the claim’s 

merits is barred unless the petitioner can demonstrate both cause for and prejudice 

from the default or that a miscarriage of justice will occur if the court fails to address the 

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claim on its merits. See, e.g., Woods v. Scwartz, 589 F.3d 368, 373 (7th Cir. 2009).

 If the petitioner has preserved his claims for federal review, the law nevertheless 

precludes issuance of a writ of habeas corpus unless the state court’s decision: “(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 proceeding.” 28 U.S.C. 

§ 2254(d)(1)–(2). The last reasoned state court decision to address the claims in Cole’s 

habeas corpus petition was the Illinois Appellate Court’s decision on direct appeal. 

Thus the Court will look to that decision to assess the reasonableness of the state 

courts’ adjudication of Cole’s federal claims. See Ylst v. Nunnemaker, 501 U.S. 797, 

803 (1991) (presumption that “[w]here there has been one reasoned state judgment 

rejecting a federal claim, later unexplained orders upholding that judgment or rejecting 

the same claim rest upon the same ground”). 

A. Prosecutorial misconduct 

 The prosecutor at Cole’s trial made several inappropriate comments directed at 

Cole, his trial counsel, and the theory of Cole’s defense. On direct appeal, the Illinois 

Appellate Court expressed concern about the prosecutor’s comments but concluded 

that the trial court did not abuse its discretion in overruling Cole’s objections. Ex. A at 

12. Specifically, the appellate court stated that although the prosecution’s arguments 

“verged on the boundaries of improper comment” and that although it “[did] not condone 

this type of argument,” the arguments “reasonably relate[d] to the State’s apparent 

strategy of discrediting defendant’s theory of self-defense [and] challenging the 

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believability of the witnesses” Id. at 11–12. The court further concluded that the trial 

court’s instructions to the jury—namely, the court’s instruction that closing arguments 

were not evidence—“neutralized the possibility of prejudice” to Cole. Id. at 12.

 The relevant “clearly established Federal law” here is the Supreme Court’s 

decision in Darden v. Wainwright, 477 U.S. 168 (1986). Although the state court did not 

expressly discuss Darden or any other federal case, this Court will uphold the state 

court’s decision so long as it is consistent with the reasoning of Darden. See Early v. 

Packer, 537 U.S. 3, 8 (2002) (section 2254 does not require state court to cite relevant 

Supreme Court cases so long as the state court’s reasoning and result do not contradict 

Supreme Court precedent). The Supreme Court recently noted that “the Darden

standard is a very general one” that gives state courts “‘more leeway . . . in reaching 

outcomes in case-by-case determinations.’” Parker v. Matthews, 132 S. Ct. 2148, 2155 

(2012) (quoting Yarborough v. Alvarado, 541 U.S. 652, 644 (2004)). 

 Under Darden, a habeas corpus petitioner must show both that the prosecutor’s 

comments were improper and that the statements “so infected the trial with unfairness 

as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181 

(citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). The Court in Darden

looked to a number of different factors to assess whether the prosecutor’s statements 

ran afoul of this standard: (1) whether the prosecutor’s statements misstated or 

manipulated the evidence; (2) whether the comments implicated any of the defendant’s 

specific rights; (3) the extent to which the defendant invited the comments; (4) the trial 

court’s instructions; (5) the weight of the evidence against the defendant; and (6) the 

defendant’s opportunity to rebut. Id. at 181–82. 

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 The state appellate court was fully warranted in expressing serious concern 

about the prosecutor’s comments in Cole’s case. The prosecutor’s reference to 

Chicago as the “murder capital of the world” served no proper purpose; it amounted to 

an improper attempt to urge the jury to make a statement about a social crisis. See,

e.g., United States v. Childress, 58 F.3d 693, 715 (D.C. Cir. 1995) (“It is well established 

that a prosecutor may not use the bully-pulpit of a closing argument to inflame the 

passions or prejudices of the jury or to argue facts not in evidence.”); ABA Standards for 

Criminal Justice, Prosecution Function and Defense Function, Standard 3–5.8(c), p. 106 

(3d ed. 1993). The prosecutor’s comments likely were designed to distract the jury from 

its proper function, which was to decide whether the evidence properly introduced was 

sufficient to prove Cole’s guilt beyond a reasonable doubt. 

 The state court’s decision in Cole’s case, however, was neither contrary to nor an 

unreasonable application of Darden. The prosecutor’s comments did not so infect the 

trial with unfairness as to result in a denial of Cole’s due process rights. The court 

found that the prosecutor’s arguments “reasonably relate[d]” to a legitimate strategy.

Ex. A at 11. The court also noted the trial court’s instruction to the jury that closing 

arguments were not evidence and concluded that the instruction tended to neutralize 

any prejudice. These are among the relevant factors under Darden.

 Consideration of the other Darden factors further supports a conclusion that the 

state court’s determination that Cole was not denied a fair trial was reasonable. The 

comments did not implicate any of Cole’s specific rights, and although improper, they 

did not misstate or manipulate the evidence produced at trial. Cole did not have an 

opportunity to respond to the prosecutor’s comments. The state appellate court 

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concluded, however, that the evidence against Cole was “overwhelming,” Ex. A at 9, 

and this is the Darden factor that the Seventh Circuit has repeatedly described as the 

most important one. See, e.g., Hough v. Anderson, 272 F.3d 878, 903 (7th Cir. 2001); 

Pisciotti v. Washington, 143 F.3d 296, 302 (7th Cir. 1998). This was not an 

unreasonable assessment. Larry Turentine gave extensive testimony that incriminated 

Cole, and O’Neal, a disinterested witness, testified that Cole bragged about killing 

Terrence Turentine. The only witness that testified favorably for Cole at his trial was 

Ezra Washington, but his prior statements, which the prosecution introduced into 

evidence, were incriminatory of Cole. For these reasons, the Illinois Appellate Court did 

not act unreasonably in rejecting Cole’s claim concerning the prosecutor’s arguments. 

B. Conflict of interest

 Cole next argues that the trial court violated his constitutional rights when it failed 

to inquire into trial counsel’s alleged concurrent representation of both Cole and his 

brother Joseph. He contends that once Joseph testified at Cole’s post-trial hearing that 

Kusatzky was his attorney during the time of Cole’s trial, the trial court was required to 

inquire further. 

 The Supreme Court has held that the right to counsel includes a “correlative right 

to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 

271 (1981). When a trial court knows or reasonably should know that a particular 

conflict exists, it must inquire further regarding that conflict. Mickens v. Taylor, 535 U.S. 

162, 168–69 (2001); Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). Multiple 

representation, however, is not a per se violation of the Sixth Amendment right to 

counsel. Rather, the petitioner must show that the multiple representation resulted in a 

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conflict that actually affected counsel’s performance in his representation of the 

petitioner at trial. See Mickens, 535 U.S. at 169–71 (trial court has no duty to inquire 

into “vague, unspecified possibility of conflict, such as that which inheres in almost 

every instance of multiple representation” (internal quotation marks omitted)); Cuyler,

446 U.S. at 346–47 (“Absent special circumstances, . . . trial courts may assume either 

that multiple representation entails no conflict or that the lawyer and his clients 

knowingly accept such risk of conflict as may exist.”). In Wood, the Supreme Court 

found a due process violation where a review of the record left the Court “[un]sure 

whether counsel was influenced in his basic strategic decisions” based on an apparent 

conflicting representation. Wood, 450 U.S. at 272. 

 The Illinois Appellate Court overruled Cole’s conflict-of-interest claim. The Court 

found that the record did not support Cole’s contention that trial counsel represented 

both him and Joseph. It based this conclusion on trial counsel’s testimony at the posttrial hearing generally and Joseph’s testimony that counsel frequently spoke with Cole’s 

entire family about his case. The court also noted that Joseph was never formally 

charged in the case and was a suspect only briefly. 

 The appellate court’s definitive conclusion that no attorney–client relationship 

existed between Joseph and Cole’s trial counsel at any point or for any purpose during 

the pendency of Cole’s criminal proceedings would appear to be an unreasonable 

determination of the facts in light of the evidence presented. See 28 U.S.C. 

§ 2254(d)(2); People v. Simms, 192 Ill. 2d 348, 382, 736 N.E.2d 1092, 1118 (2000) 

(attorney–client relationship created when client authorizes attorney to act and attorney 

indicates acceptance of power to act on client’s behalf). This is not dispositive of Cole’s 

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claim, however, because the relevant constitutional inquiry is whether the record 

suggests that there was a conflict that actually affected counsel’s performance, such 

that the trial court should have inquired further. Mickens, 535 U.S. at 171; Wood, 450 

U.S. at 272. The Court concludes that no such suggestion existed in the trial record. 

 Cole’s trial counsel testified at the post-trial hearing that he did not believe it was 

in Cole’s best interests for Joseph to testify and that Cole “was made aware of the 

reasons why [he] did not call Joseph.” Ex. Z at N-237. He explained that he believed 

that calling Joseph as a witness “would have quite frankly opened the door for [the 

prosecution] to do more damage than any good, because statements that [he did not] 

believe did come out could have come out.” Id. at N-238. In short, counsel clearly 

explained his decision not to call Joseph as a witness and rebutted any potential 

implication that he had a conflict of interest in his dealings with the two brothers, and the 

trial court expressly found that testimony credible. Neither Joseph nor Cole offered any 

testimony that contradicted defense counsel’s testimony on this point. The record at the 

post-trial hearing did not sufficiently suggest a conflict of interest that actually affected 

trial counsel’s representation of Cole such that the trial court was obliged to inquire 

further. The state court’s rejection of Cole’s claim was therefore reasonable. 

C. Ineffective assistance of trial counsel

 Cole’s third claim is that his trial counsel rendered ineffective assistance when he 

failed to request a jury instruction based on the authorities’ destruction of the Chevy 

Caprice. Specifically, Cole contends that under Illinois law, he was entitled to an 

instruction that the jury could draw an adverse inference against the prosecution based 

on the car’s destruction after it was impounded. He contends that counsel rendered 

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constitutionally inadequate assistance by failing to ask the trial court to give such an 

instruction.

 The Illinois Appellate Court identified the correct Supreme Court decision 

governing Cole’s claim, Strickland v. Washington, 466 U.S. 668 (1984), and it 

concluded that he had not established trial counsel’s constitutional ineffectiveness. 

Specifically, the court determined that “defense counsel was not ineffective for failing to 

devise a strategy based on defendant’s claims that bullets struck his car in defiance of 

physical science.” Ex. A at 16. It also noted that “defendant’s claims of State spoliation 

of the evidence were undermined by defendant’s own handling of the car after the 

crime.” Id.

 The Supreme Court in Strickland held that to prevail on a claim of ineffective 

assistance under the Sixth Amendment, a petitioner must show both that counsel’s 

performance fell below an objective standard of reasonableness and that the petitioner 

suffered prejudice as a result. Strickland, 466 U.S. at 688, 694. The Court stated that 

courts should “indulge a strong presumption that counsel’s conduct falls within the wide 

range of reasonable professional assistance; that is, the defendant must overcome the 

presumption that, under the circumstances, the challenged action might be considered 

sound trial strategy.” Id. at 689 (internal quotation marks omitted); see also Bell v. 

Cone, 535 U.S. 685, 702 (2002) (strong presumption warranted because “it is all too 

easy to conclude that a particular act or omission of counsel was unreasonable in the 

harsh light of hindsight”). Regarding the standard for prejudice, a petitioner must 

establish that the counsel’s unreasonable performance was “so serious as to deprive 

the defendant of a fair trial, a trial whose result is reliable.” Harrington v. Richter, 131 S. 

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Ct. 770, 787–88 (2011) (citing Strickland, 466 U.S. at 687). 

 At the conclusion of the post-trial hearing, the trial judge concluded that defense 

counsel was unaware of Cole’s claim that there were bullet holes inside the Chevy 

Caprice. Cole has offered nothing to suggest that this factual determination was 

unreasonable. Further, having reviewed the state court record, the Court concludes 

that the trial court’s factual determination was reasonable. See Morgan v. Hardy, 662 

F.3d 790, 798 (7th Cir. 2011) (petitioner may succeed in challenging state court’s 

factual determination if it was contrary to the clear weight of the evidence in the record).

Cole himself testified at the post-trial hearing that he replaced the windows on the 

Caprice before the police impounded his car, leaving no traces of the alleged bullet 

holes in the windshield. Cole also testified that, except for the replaced windows, the 

photographs of the Caprice that were presented at trial accurately depicted the car as it 

appeared on the night of the shooting. 

 Given these facts, trial counsel did not act unreasonably in failing to request an 

instruction that the jury could draw an adverse inference against the prosecution based 

on the car’s destruction before the trial. Trial counsel, having no knowledge of any 

alleged bullet holes inside the car, had no basis to believe that having the Caprice 

available would assist Cole’s defense and thus no basis upon which to argue for an 

adverse inference. Given these circumstances, the state court’s rejection of Cole’s 

ineffective assistance claim was not unreasonable.

D. Amendment of indictment

 Cole’s final federal claim is that he was denied due process and equal protection 

when the trial court allowed the prosecution to amend the attempted murder charge 

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against him to allege that he shot “at” Larry Turentine, rather than that he shot Larry 

“about the body.” Respondent contends that Cole procedurally defaulted this claim by 

failing to fairly present it to the state courts as a federal claim and alternatively that the 

claim fails on its merits. 

1. Procedural default

 “Fair presentment requires the petitioner to give the state courts a meaningful 

opportunity to pass upon the substance of the claims later presented in federal court.”

Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). Even if Cole himself did not fairly 

present the claim as a federal issue, however, “a state court’s decision to raise and 

answer a constitutional question sua sponte will also permit subsequent federal habeas 

review.” Cooper v. Wainwright, 807 F.2d 881, 887 (11th Cir. 1986); see also Johnson v. 

Cain, 712 F.3d 227, 231 (5th Cir. 2013); Walton v. Caspari, 916 F.2d 1352, 1357–58 

(8th Cir. 1990) (exhaustion requirement satisfied if state court undertook to decide 

petitioner’s constitutional claim on the merits sua sponte).

 Respondent is correct that Cole did not cite to any federal precedent in his 

appellate brief on direct appeal, nor did he expressly argue that the amendment of the 

indictment violated his federal constitutional rights. Rather, he relied on an Illinois 

statute, 725 ILCS 5/111-5, and two cases decided by the Illinois Appellate Court: 

People v. Kelly, 299 Ill. App. 3d 222, 701 N.E.2d 114 (1998), and People v. Patterson,

267 Ill. App. 3d 933, 642 N.E.2d 866 (1994). 

 The state appellate court’s decision, however, arguably did address the federal 

constitutional aspect of Cole’s claim. In discussing the claim, the Illinois Appellate Court 

noted that “[w]hat matters is that the amended version [of the indictment] still conveys 

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the gist of the offense charged so that the defendant was adequately informed by the 

indictment.” Ex. A at 17 (internal quotation marks omitted). It ultimately concluded that 

the amendment to the indictment did not enlarge the crime and that Cole “was 

adequately informed of the charge . . . both before and after the amendment.” Id. In 

support, the court cited to three of its prior decisions, including People v. Dunskus, 282 

Ill. App. 3d 912, 668 N.E.2d 1138 (1996). In Dunskus, the Illinois Appellate Court noted 

that a defendant has a constitutional right “to be informed of the nature and cause of the 

charge against [him].” Id. at 915, 668 N.E.2d at 1141. The court further explained that 

the Illinois legislature gave that fundamental right “substance” when it enacted section 

111-3(a) of the Illinois Code of Criminal Procedure of 1963, which sets forth the 

requirements for a state criminal charge. Dunskus, 282 Ill. App. 3d at 915, 688 N.E.2d 

at 1141. The court’s citation to Dunskus in addressing Cole’s claim suggests that it was 

aware of the federal constitutional dimension of his argument regarding the amendment 

of the indictment. The court’s conclusion that Cole was adequately notified of the 

charges also calls to mind the strictures imposed by due process—that the defendant 

“be advised of the charges against him, [and] have a reasonable opportunity to meet 

them by way of defense or explanation . . . .” In re Oliver, 333 U.S. 257, 275 (1948); cf.

Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013) (“[I]f the state-law rule subsumes the 

federal standard—that is, if it is at least as protective as the federal standard—then the 

federal claim may be regarded as having been adjudicated on the merits.”). Because it 

appears that the state court did adjudicate the substance of Cole’s federal due process 

claim, this Court may appropriately consider the merits of that claim. 

2. The merits 

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 It is important to note at the outset the limited nature of Cole’s federal claim 

regarding the amendment of the indictment. Although the Fifth Amendment provides for 

a right to an indictment by a grand jury “for a capital, or otherwise infamous crime,” U.S. 

Const. amend. V, the Supreme Court has declined to apply the grand jury requirement 

to the states. See Alexander v. Louisiana, 405 U.S. 625, 633 (1972); Hurtado v. 

California, 110 U.S. 516, 534–35 (1884). Instead, Cole’s claim invokes the 

requirements of due process: a right to reasonable notice of the charge and an 

opportunity to be heard in defense of that charge. In re Oliver, 333 U.S. at 273; see

also Cole v. Arkansas, 333 U.S. 196, 201 (1948) (“It is as much a violation of due 

process to send an accused to prison following conviction of a charge on which he was 

never tried as it would be convict him upon a charge that was never made.”). 

 To comply with the requirements of due process, the court must provide a 

defendant with notice that “set[s] forth the alleged misconduct with particularity.” In re 

Gault, 387 U.S. 1, 33 (1967). An amendment to an indictment or other charging 

document is permissible if the original indictment reasonably informed the defendant of 

the “substantial elements of the crime” for which he was ultimately convicted. Paterno

v. Lyons, 334 U.S. 314, 321 (1948). 

 The Illinois Appellate Court concluded that the amendment to the indictment that 

the trial court permitted was a matter of formality and not substantive because “[t]he 

crime was not enlarged and the defendant was adequately informed of the charge in 

count XIX, both before and after the amendment.” Ex. A at 17. This was a reasonable 

conclusion. The indictment for attempted murder identified the crime charged, the 

alleged victim, and the method by which Cole allegedly committed the offense. The 

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amendment did not change any of the elements of the attempted murder charge and did 

not expand or alter the scope of the charge. As such, the trial court did not violate 

Cole’s right to due process when it allowed the prosecution to amend the indictment 

shortly before the trial began. Cole is not entitled to relief on this claim. 

E. Certificate of appealability

 When a district court enters a final judgment that dismisses a prisoner’s habeas 

corpus petition, it must issue or deny a certificate of appealability (COA). “[F]ederal 

courts of appeals lack jurisdiction to rule on the merits of appeals from habeas 

petitioners” in the absence of a COA. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

To obtain a COA, the petitioner must make “a substantial showing of the denial of a 

constitutional right.” 28 U.S.C. § 2253(c)(2). A court should issue a COA if it 

determines 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.” Slack v. 

McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). 

 The Court’s determination that the Illinois Appellate Court reasonably adjudicated 

all of the claims in Cole’s habeas corpus petition (aside from the claims that Cole has 

now agreed are non-cognizable) is not fairly debatable. The Court therefore declines to 

issue a certificate of appealability. 

Conclusion

 For the reasons stated above, the Court denies Cole’s petition for a writ of 

habeas corpus and declines to issue a certificate of appealability. The Clerk is directed

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to enter judgment in favor of the respondent. 

 

 MATTHEW F. KENNELLY 

 United States District Judge 

Date: May 28, 2013 

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