IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

United States of America ex rel. 

 KEVIN BIRDO 

Petitioner, 

 v. 

RANDY PFISTER, Warden, 

 Pontiac 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 the Pontiac Correctional Center in 

Pontiac, Illinois, where he is serving a sentence of seven and a half years for aggravated battery 

of a peace officer. Birdo now brings a petition for a writ of habeas corpus pursuant to 28 U.S.C. 

§ 2254, in which he raises four grounds for relief: (A) improper denial of his motion for 

substitution of the trial judge; (B) violation of Illinois Supreme Court Rule 13 when his public 

defenders did not individually withdraw from his case and notify Birdo of their withdrawals; (C) 

violation of Birdo’s right to confrontation when the trial judge sustained the prosecutor’s 

objection to a particular question; and (D) ineffective assistance of counsel as to Birdo’s trial 

attorney for failing to investigate a potentially exculpatory witness. For the reasons explained 

here, the Court denies the petition with respect to Claims A, B, and C, but concludes that Birdo 

may be entitled to an evidentiary hearing of limited scope on his claim for ineffective assistance 

of counsel (Claim D). 

1

 The current warden of the Pontiac Correctional Center 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. 

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I. Background

A. Facts2

On March 27, 2000, a grand jury indicted Birdo for aggravated battery pursuant to 720 

ILCS 5/12-4(b)(6). 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. Birdo was tried and convicted of 

aggravated battery twice by a jury. Logan County assistant public defender Jeff Page was 

appointed to represent him at both trials.

The First Trial. Prior to Birdo’s first trial, Page submitted a disclosure to the court 

listing five witnesses, attaching written statements from four inmates (Maurice Hardaway,3

Mauricio Rivas,4 Jason Bartman,5 and Lonnie Henry6), and providing the name of Correctional 

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 transcripts from hearings in state court. 

3

 Hardaway recalled an incident during which an “officer shoved [an inmate] and he also 

punched the inmate.” Hardaway was not, however, certain that his memory of the incident 

related to Birdo’s case. Dkt. 15-6 at 40-41. 

4

 Rivas wrote in his statement that it was a “very cold day” and that Birdo did not have a 

state-issued coat. Birdo “asked the officer on the bus several times for permission to board the 

bus and wait in there ... because he was cold and wasn’t issued a coat to wear ... I don’t 

remember exactly what that officer said in response, but I remember it being some type of rude 

and callous comment because it even made me mad. In response, Mr. Birdo attempted to board 

the bus anyway, but was immediately thrown or kicked off ... I remember it being extremely 

aggressive in nature. Yet Mr. Birdo, tired of the cold, again tried to board the bus ... [he was] in 

full restraints ... That however didn’t stop that officer from throwing punches at Mr. Birdo when 

he began to board the bus ... [E]ven with him pinned down like that a couple of officers still 

continued to beat him. I distinctly remember seeing one in particular who punched Mr. Birdo 

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Officer Michael Littleton. Trial commenced on August 12, 2002. During the course of the trial, 

Birdo was physically restrained with leg shackles and handcuffs, and was required to take the 

stand wearing the same restraints. Dkt. 15-6 at 101. 

The State presented the testimony of Correctional Officers Bryan Wagner and Craig 

Cowan. Wagner testified that during the transfer of inmates on January 12, 2000, Birdo stepped 

onto a bus on which Wagner, Cowan, and Littleton were waiting and stated, “If you want me off 

this fucking bus you’re going to have to take me off.” Dkt. 15-15 at 115. Wagner told Birdo to 

get off the bus and Birdo provided essentially the same response, after which Wagner stepped 

into the stairwell of the bus and “grabbed a hold of his arm to escort him off the bus....” Id. at 

116. Birdo then “jerked away from me and hopped down onto the ground, jumped off the last 

step onto the ground ... [A]s I was stepping outside on the ground ... Birdo came from the side 

and with his fist doubled up hit me up side the head, kind of knocked me up against the door, 

caught me off guard, and then came back and hit me a second time somewhere in the jaw area. 

And then the third time he swung at me I blocked it with my hand.” Id. Wagner added that he 

had “a small cut to the side of my head, and I had a little cut on the back of my hand ... [and] I 

several times while he lay over him....” Rivas further wrote that he filed a grievance with the 

Administrative Review Board soon after the incident, and that this document contained “the best 

and most detailed accounts of what transpired on that day.” Dkt. 15-6 at 43-45.

5

 Bartman wrote in his statement that Birdo did not have a coat on and that Birdo “said he 

was going to go stand on the bus for a couple minutes to get warm. When he stepped on the bus 

the officer from Menard said, quote ‘What the fuck are you doing? Get the hell off the bus.’ ... 

[A]ll of a sudden the officer jumps out of his chair and goes straight after Mr. Birdo. He started 

pushing Mr. Birdo by his chest and by his face trying to get him off the bus. So to prevent 

fall[ing] he was holding on to the officer. After a couple more pushes by the officer they both fell 

to the ground. They were rolling on the ground for about a minute ....” Dk. 15-6 at 47-48. 

6

 Henry wrote in his statement that “we were not provided with winter coats ... I know 

that Mr. Birdo was thrown from the bus and possibly struck by a c/o ... I also heard the c/o that 

drove the bus tell the c/o involved in the incident not to worry, ‘that they’ll take care of it and 

nobody will believe a[n] inmate just be cool and don’t do nothing else.’” Dkt. 15-6 at 50-51. 

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was having pain from my neck over to my shoulder ....” Id. at 117. Cowan testified that “Birdo 

stepped onto the bus saying he wanted to get on because he was cold. Lieutenant Littleton asked 

him to step off ... Inmate Birdo refused to get off ... Then Officer Wagner stood up and told him 

he needed to get off the bus ... [Birdo] said, ‘Fuck you. I’m not getting off ... Why don’t you 

fucking make me, bitch.’ So Officer Wagner proceeded down the steps. I stood up and he went 

to grab Mr. Birdo’s arm, and he kind of jumped off the bus and kind of in the same motion he 

c[a]me across ... c[a]me up and hit Wagner in the side of the head and neck area ... and he got 

hit twice more that I could see, same head and neck area. And then Wagner blocked the last ... 

[A]nother officer from another bus had come over to help us out, got some leg irons. While 

Officer Wagner was applying [leg irons] Mr. Birdo spit in his face.” Id. at 141-42. Cowan also 

testified that the driver of the bus was Officer David Young, that Young “wasn’t on the bus at 

the time of the incident,” and that he “d[id]n’t know truthfully” where Young was at the time—

“I imagine he went inside to do some sort of paperwork.” Id. at 140, 147.

The defense called Mauricio Rivas, an inmate, who testified that Birdo asked to get on 

the bus because he was cold. “[W]hen Mr. Birdo asked if he could board the bus the officer 

inside made some sort of a humorous comment about it ... I remember him laughing about it ... 

He was basically mocking him.” Id. at 166-67. Birdo returned to the line of inmates waiting 

outside of the bus, and then tried to get on the bus a second time but “was pushed off by one of 

the officers inside.” Id. at 168. Rivas did not see Birdo strike an officer during the incident. Id. at 

169. Birdo’s trial attorney did not call any of the other witnesses he listed in his disclosure. 

Birdo testified on his own behalf that he attempted to board the bus twice because he was 

cold and that during the second attempt, “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 

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– 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.” Id. at 190. Birdo further testified 

that when he tried to board the bus a third time, Wagner “grabbed me by my label of the 

jumpsuit, pushed me, and pushed me off the bus. I landed on my head ... I believe it was Officer 

Wagner ... jumped on top of me, had his elbow in my head, had me down, face stuck to the 

pavement. Another officer, I don’t know who it was. I don’t believe it was ... Officer Cowan ... 

but another officer jumped on my legs ...” Id. at 193.

During the State’s closing rebuttal argument, the prosecutor made several improper 

comments. For example, the prosecutor accused Page of “mak[ing] up things” and “sucking up” 

to the jury. Dkt. 15-6 at 101. The prosecutor also raised Birdo’s prior convictions as evidence of 

Birdo’s propensity to commit crimes—“what happened was an angry, hostile, profane convicted 

felon, violently convicted felon who was trying to be controlled by two guards.” Id. at 102. 

Incredibly, the prosecutor even denigrated the presumption of innocence, stating “that’s a legal 

fiction because ... at this point, you’ve already, in your minds, have heard the evidence and 

began to form judgments ... that presumption of innocence that we are all entitled to, but we 

should not have the benefit of once we have committed a crime, crimes such as these.” Id. at 

102-03. The jury found Birdo guilty of aggravated battery.

Birdo’s Motion for a New Trial. Page moved for a new trial on Birdo’s behalf, 

asserting, among other arguments, that Birdo was prejudiced by the fact that he was physically 

restrained with leg shackles and handcuffs in view of the jury and that he was denied a fair trial 

due to the prosecutor’s comments during his rebuttal closing argument. Dkt. 15-6 at 100-03. On 

October 8, 2002, the trial court granted the motion. The court stated in an oral ruling that a new 

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trial was warranted because of the “argument issue,” referring to the prosecutor’s comments, and 

the “shackles issue.” Dkt. 15-17 at 2.

Birdo’s Pre-Trial Motions. On the morning of the second trial (November 17, 2003), 

Birdo (although still represented by Page) submitted three written pro se motions: (1) to dismiss 

the indictment; (2) to substitute the judge; and (3) for a continuance. As part of his motion to 

dismiss the indictment, Birdo argued 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. Page stated on the record that “what directly concerns me is his 

statements that I have failed to secure a witness on his behalf that he thinks is critical and 

saying that failure is a violation of professional conduct, and now in no uncertain terms is 

saying I’m ineffective on his case.” Id. at 39. Page later made an oral motion to withdraw 

as Birdo’s counsel, which was denied. Id. at 39-40, 46. The court stated, inexplicably in 

light of Birdo’s complaint about Page’s failure to obtain information about the bus driver, 

that “I don’t believe any of his criticisms are basically as to what Mr. Page has done.” Id.

at 46. As to the motion to substitute the judge, Birdo argued that the same trial judge “sat 

on my first trial and heard me testify” and that the judge forced him to wear “full upper 

body and leg restraints in full view of the jury.” Id. at 42. As to the motion for a 

continuance, Birdo argued in his written submission that Page had failed to act on 

information from Birdo regarding the bus driver’s presence during the incident and that 

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Birdo needed a substantial continuance to find the bus driver. Dkt. 15-6 at 229. In 

denying all three motions, the court stated that it was “an old case” and “ready for trial.” 

Dkt. 15-13 at 40.

The Second Trial. At the second trial, the State again presented the testimony of Officers 

Wagner and Cowan. Wagner testified that Birdo attempted to board the bus and “I took him by 

the arm, and when I grabbed a hold of his arm, he pulled away from me and he jumped down 

onto the ground ... Officer Cowan said something to me and I turned around to look at him, and 

as I stepped onto the ground inmate Birdo hit me ... He had his hands doubled up in a fist and 

struck me on the left side ... he came back and hit me again ... he was swinging at me a third 

time and I blocked it and he hit me in the back of my hand ... as I put the leg irons on he turned 

around and spit in my face.” Id. at 89-92. Cowan testified that Birdo attempted to board the bus 

and Wagner “began to escort him off by grabbing his arm. Mr. Birdo jumped off the bus and at 

the same time c[a]me up and hit him with two clenched fists.” Id. at 136. Cowan further testified 

that he “believe[d] [Officer Young, the bus driver] was out checking other buses to see who had 

arrived” and that he was not on the bus at the time. Id. at 134. 

Birdo testified as the only defense witness. He testified that he asked to get on the bus 

because he was cold. “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. Wagner and Birdo 

exchanged words, and then Birdo “just stood there. I said I’m cold.” Id. at 169-70. Wagner then 

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“came running down the steps with as much speed as he can get, grabbed the front of my ... 

jumpsuit and hurled me off the bus, and I went flying off the bus.” Id. at 170.

The jury found Birdo guilty of aggravated battery. On December 9, 2003, the trial court 

sentenced Birdo to seven and a half years in prison, to run consecutively to his unrelated and (at 

the time) unexpired sentences. Dkt. 15-6 at 6. 

B. Procedural History. 

Direct Appeal. Birdo appealed his conviction, raising (1) a claim for ineffective 

assistance of trial counsel for failing to call certain witnesses, including the bus driver, and (2) a 

claim that the trial court improperly allowed the state to impeach Birdo with prior convictions. 

Dkt. 15-2 at 4. The Illinois Appellate Court found that the trial court did not abuse its discretion 

by admitting Birdo’s prior convictions for impeachment purposes and declined to adjudicate the 

ineffective assistance of counsel claim, stating that “the record contains no indication why 

defense counsel did not call these witnesses ... the issues are more appropriately addressed in 

proceedings on a petition for postconviction relief.” Dkt. 15-1 at 8, 11-12 (Order, No. 4-03-1076 

(Ill. App. Ct. Dec. 7, 2005)). On March 29, 2006, the Illinois Supreme Court denied Birdo’s 

petition for leave to appeal. 218 Ill. 2d 544 (2006).

Post-Conviction. Birdo next filed a pro se post-conviction petition in the Circuit Court in 

Logan County, Illinois, claiming that (1) Illinois Supreme Court Rule 13 was violated when the 

public defenders assigned to represent him at trial did not individually withdraw each time his 

case was reassigned to a new attorney; (2) Page was ineffective for failing to call certain 

witnesses, particularly the bus driver, David Young; and (3) Birdo’s appellate defender Keleigh 

Biggins was ineffective for failing to raise several issues in Birdo’s direct appeal. Dkt. 15-6 at 

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219-25. Birdo’s post-conviction counsel, Richard Wray, filed an amendment to the pro se postconviction petition on December 30, 2008. Id. at 267-71. Wray argued that: 

[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.

Id. at 269.

 On July 2, 2009, the court granted the State’s motion to dismiss as to all claims except 

the ineffectiveness claim. Dkt. 15-6 at 306-10. The court set an evidentiary hearing on the single 

issue of “petitioner’s claim of ineffective assistance of trial counsel based on counsel’s failure to 

call certain witnesses at trial ....” Id. at 310.7

 The hearing was held on March 15, 2010. Birdo’s 

attorney (Wray) called one witness, Jeff Page, to the stand. Page testified to the following: 

x Page called Mauricio Rivas to testify at Birdo’s first trial because he “thought 

he had some information that would be potentially helpful” but he did not call 

him to testify at Birdo’s second trial because he “made a strategic decision” 

“based upon his testimony at the first trial.” Page added that Rivas’s version of 

the incident differed from Birdo’s version in certain ways, and Birdo insisted 

on testifying at both trials. Dkt. 15-21 at 6, 10-11. 

x Page interviewed three witnesses on the day of the first trial who were inmates 

at the time and “decided that none of them were credible in my mind other than 

Mr. Rivas.” Id. at 8-10, 13. 

x Page acknowledged that he did not subpoena the bus driver, David Young, 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 [Young, the bus driver] ever giving a statement 

7

 The record submitted by the respondent in this matter is missing page 309 to Exhibit 15-

6, which is the fourth page of the circuit court’s order dismissing certain of Birdo’s claims and 

setting an evidentiary hearing as to the ineffectiveness claim. The missing page appears to relate 

directly to the court’s assessment of Birdo’s ineffective assistance of counsel claim. The result of 

the court’s analysis, however, is evident in the court’s decision to set an evidentiary hearing. Dkt. 

15-6 at 310. 

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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.”). Id. at 19-21, 23-24.

 Upon the State’s motion for a directed finding, the circuit court described Birdo’s claim 

as ineffective assistance “by failing to call certain witnesses, and those are witnesses whose 

names have been mentioned here today, three individuals; Jason Bartman, Mauricio Rivas, and 

Lonnie Henry ....” Id. at 30. The court found that Page’s explanation as to why he did not call 

Rivas at the second trial was reasonable. Id. Further, the court found that there was “a complete 

lack of evidence supporting the ... reasonable probability that counsel’s performance was 

prejudicial ... There has not been a single witness presented here. No evidence to indicate what 

any of these witnesses would have testified to ....” Id. at 31. The court did not mention Birdo’s 

claim as to Page’s alleged ineffectiveness for not calling David Young. 

 Birdo appealed, arguing that Page was ineffective when he failed to investigate or present 

Young at either trial. Birdo was prejudiced by this failure, he argued, because the testimony 

might have bolstered an otherwise uncorroborated defense. Dkt. 15-7 at 11-14. Birdo also argued 

that his appointed post-conviction counsel, Richard Wray, provided ineffective assistance of 

counsel by not calling named eye-witnesses at the evidentiary hearing to show the prejudice 

caused by Page’s ineffectiveness at trial. Id. at 15. 

 The Illinois Appellate Court affirmed the circuit court’s directed finding after applying 

the manifest-weight-of-the-evidence standard. Dkt. 15-10 at 8, 12. The court noted that Birdo 

only challenged the circuit court’s order as it related to Page’s failure to investigate Young, and 

not as it related to Bartman, Rivas, and Henry. Id. at 9. As to Young, the appellate court 

recognized that, “In its oral pronouncement, the court did not analyze or mention Page’s conduct 

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of not contacting Young.” Id. It went on, however, to nevertheless “find the court’s analysis 

would apply equally to Young.” Id. The court added that the failure to investigate a witness “that 

purportedly had no knowledge cannot constitute substandard performance.” Id. Further, Birdo 

failed to present evidence of prejudice by not producing testimony or affidavits “that would have 

revealed the extent of Young’s knowledge or the nature of his proposed testimony had he been 

called as a witness.” Id. at 9-10. As to Wray, the court found that post-conviction counsel cannot 

be deemed ineffective “for failing to perform a futile act.” Id. at 10. Since Page exercised 

“reasonable professional judgment not to investigate Young’s involvement,” the court could not 

say that Wray was ineffective for failing to present the testimony of any witnesses. Id.

 Birdo filed a petition for rehearing, arguing that his post-conviction appellate counsel 

(Elaine Belcher) was ineffective, in part because she was “obligated to point out that this 

defendant-appellant testified at both trials” that Young was present, Young made a racially 

insensitive remark to Birdo, Young assaulted Birdo, and Young helped to restrain Birdo with leg 

shackles. Dkt. 23-1 at 2. Birdo further argued that the appellate court was in error for applying 

the same analysis to Young as the court applied to Bartman, Rivas, and Henry. Id. at 3. Birdo 

added that “It can not be assumed that David Young would not have corroborated [Birdo’s] 

version.” Id. at 4. Birdo also complained that Belcher was ineffective for failing to brief and 

preserve several issues, including: (1) violations of Illinois Supreme Court Rule 13; (2) the 

motion to substitute the judge that Birdo made before his second trial; (3) a violation of Birdo’s 

right to confrontation when at the second trial, his attorney was prevented from asking a 

particular question due to the prosecutor’s sustained objection; and (4) ineffective assistance of 

his direct appellate counsel. Id. at 4. 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 

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Court, raising several of the same arguments (Dkt. 15-11); that petition was also summarily 

denied. 968 N.E.2d 83 (Ill. 2012).

Federal Habeas. On July 23, 2012, Birdo filed a habeas corpus petition in federal court.8

Birdo raised four claims: 

x Claim A: Improper denial of Birdo’s motion to substitute the trial judge. 

x Claim B: Illinois Supreme Court Rule 13 violation; failure of two public defenders to 

formally withdraw from Birdo’s case and notify Birdo of their withdrawals; loss of 

witness list due to that failure. 

x Claim C: Violation of right to confrontation when the trial judge sustained the 

prosecutor’s objection to a particular question. 

x Claim D: Ineffective assistance by trial attorney Page for failing to investigate Young.

The Court will address each of Birdo’s claims in turn. 

II. Analysis

To be eligible for a writ of habeas corpus, Birdo must demonstrate that he “is in custody 

in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see

Cheeks v. Gaetz, 571 F.3d 680, 684 (7th Cir. 2009). Challenges to the duration of a custodial 

sentence “are the province of habeas corpus.” Muhammad v. Close, 540 U.S. 749, 750 (2004). 

Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), which applies to Birdo’s 

petition because it was filed after AEDPA’s effective date, a federal court may grant relief on the 

basis of a claim that has been adjudicated on the merits by a state court only if the state court 

proceeding: “(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 

8

 The petition appears to be timely. The one-year statute of limitations for filing the 

petition, 28 U.S.C. § 2244(d)(1)(A), began to run (after post-conviction tolling) upon the denial 

of Birdo’s petition for leave to appeal to the Illinois Supreme Court on March 28, 2012. At most, 

about 117 days had run off of the 365 day clock when the petition was filed on July 23, 2012. 

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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).9

A judgment is “contrary to” established federal law when the court applies a rule that contradicts 

Supreme Court precedent. See Williams v. Taylor, 529 U.S. 362, 405 (2000). “An unreasonable 

application occurs when a state court identifies the correct governing legal principle from [the 

U.S. Supreme Court’s] decisions but unreasonably applies that principle to the facts of [a] 

petitioner’s case.” Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotation omitted). 

“[I]f it is a close question whether the state decision is in error, then the state decision cannot be 

an unreasonable application.” McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002). This 

deferential standard of review comes with the burden “on the petitioner to show that the state 

court’s determination of fact or its application of federal law was unreasonable.” Sturgeon v. 

Chandler, 552 F.3d 604, 609 (7th Cir. 2009). 

A. Claims A, B, and C Are Not Procedurally Defaulted. 

The respondent maintains that consideration of Claims A, B, and C is barred by the 

procedural default rule. It is true, as the respondent argues, that Birdo did not raise Claims A, B, 

and C before the Illinois Appellate Court or the Illinois Supreme Court in his direct appeal. But 

Birdo has raised these claims several times before appearing in federal court, and the state courts 

have never relied on a procedural default to deny his claims. Accordingly, consideration of the 

claims here is not barred by any procedural default. See Coleman v. Thompson, 501 U.S. 722, 

730 (1991); see also Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000) (the state court must 

9

 Claims that were not adjudicated on the merits in state court proceedings, by contrast, 

are subject to evaluation under the general standard set forth in 28 U.S.C. § 2243, which requires 

federal courts to “dispose of the matter as law and justice require.” See Cheeks, 571 F.3d at 684-

85.

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have actually and “clearly and expressly” relied on the procedural default as the basis of its 

ruling, otherwise the procedural default will not bar federal habeas review).

As to Claim A, Birdo first raised the issue in his pro se motion before his second trial. 

Dkt. 15-6 at 142, 231 (“Motion to Substitute Judge,” filed Nov. 17, 2003). On the morning of his 

second trial, Birdo explained to the court that he was bringing the motion because: 

[Y]ou sat on my first trial and heard me testify. Should I choose 

not to testify at the new trial, you can still be affected by what you 

heard in the defendant testifying in the first trial. This could 

prejudice the judge against the defendant ... Judge Coogan forced 

the defendant to go through the entire trial in full upper body and 

leg restraints in full view of the jury which prejudiced the jury 

against the defendant. The defendant fears such actions will be 

taken against him again ... [Y]ou are the one who decides whether 

or not you are going to accept the jury verdict. 

Dkt. 15-13 at 41-43. Birdo also raised Claim A as part of an ineffective assistance of counsel 

claim in his pro se post-conviction petition, which he filed on July 24, 2005 with the circuit court 

in Logan County. Dkt. 15-6 at 222-23. Birdo wrote that his trial attorney, Page, refused to file the 

motion, forcing Birdo to file it pro se, and that it was improperly denied. Id. at 222. Birdo went 

on to describe the underlying substance of Claim A, arguing that he was denied a fair trial 

because Judge Coogan showed prejudice against him in various ways during the second trial. Id.

at 223. Birdo’s appointed post-conviction counsel, Belcher, did not raise Claim A in her briefs 

before the Illinois Appellate Court (Dkt. 15-7 and 15-9), but Birdo again raised the issue in his 

post-conviction petition for rehearing after the Illinois Appellate Court’s affirmance. Dkt. 23-1 at 

4. Birdo argued that Belcher was ineffective for “fail[ing] to brief and preserve that defendantappellant made an allegation in his post-conviction petition that he had a right to a substitution of 

judge before his 2nd trial.” Id. Finally, Birdo raised Claim A in his petition for leave to appeal to 

the Illinois Supreme Court, in which he again framed the issue as part of an ineffective assistance 

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of appellate counsel claim. Dkt. 15-11 at 6. In his federal habeas petition and reply brief, Birdo 

frames Claim A as an improper denial of his motion and his due process rights, but not as a claim 

for ineffective assistance of appellate counsel. Dkt. 1 at 5; Dkt 16 at 3, 4-7. At no time, however, 

has any Illinois court denied this claim based on procedural default by Birdo in failing to present 

the claim on direct appeal. 

As to Claim B, Birdo described his claim in his post-conviction petition for rehearing 

before the Illinois Appellate Court, in which he framed it as a claim for ineffective assistance of 

appellate counsel. Dkt. 23-1 at 4. In the petition, Birdo argued that Belcher was ineffective for 

“fail[ing] to brief and preserve defendant-appellant’s allegation made in his post-conviction 

petition that Supreme Court Rule 13 was violated multiple times.” Id. Birdo also raised the issue 

in his petition for leave to appeal to the Illinois Supreme Court, in which he again framed the 

issue as a claim for ineffective assistance of appellate counsel. Dkt. 15-11 at 2, 6. In his federal 

habeas petition and reply brief, Birdo frames Claim B as a violation of Supreme Court Rule 13 

itself and of his due process rights, but not as a claim for ineffective assistance of appellate 

counsel. Dkt. 1 at 5; Dkt. 16 at 3, 7-8.

As to Claim C, Birdo also described this claim in his post-conviction petition for 

rehearing before the Illinois Appellate Court, again framing the claim as one for ineffective 

assistance of appellate counsel. Dkt. 23-1 at 4. In the petition, Birdo argued that Belcher was 

ineffective for “fail[ing] to brief and preserve defendant-appellant’s allegation made in his postconviction petition that he had a Sixth Amendment right to ask at trial ‘What would happen if an 

officer struck an inmate without provocation?,’ that was objected to and sustained and hindered 

his defense.” Id. Birdo also raised the issue in his petition for leave to appeal to the Illinois 

Supreme Court, in which he again framed the issue as part of a claim for ineffective assistance of 

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appellate counsel. Dkt. 15-11 at 5. Similar to Claims A and B, in his federal habeas petition and 

reply brief, Birdo frames Claim C as a violation of his Sixth Amendment right to ask the 

question, but not as a claim for ineffective assistance of appellate counsel. Dkt. 1 at 6; Dkt. 16 at 

3, 9.

 Whether Birdo’s claims are construed as claims that his post-conviction appellate counsel 

was ineffective or as claims of direct error, there is no basis to find them procedurally barred. If 

the former, there was no procedural default because Birdo raised his claim about the 

ineffectiveness of post-conviction counsel at his first opportunity, namely in his petition for 

rehearing after the Appellate Court issued its ruling; he then reasserted that claim in his petition 

for leave to appeal to the Illinois Supreme Court. And if the latter, there is no basis to invoke 

procedural default because no Illinois court denied the claim on that basis. Under Illinois law, 

Birdo’s failure to raise Claims A, B, and C could have resulted in dismissal of the claims by the 

Illinois Appellate Court. See, e.g., People v. Jolly, 374 Ill. App. 3d 499, 505 (2007) (holding that 

defendant forfeited claim not raised below). Nevertheless, the Illinois Appellate Court and the 

Illinois Supreme Court did not address this procedural default in the summary denials of Birdo’s 

petitions. A claim is only procedurally defaulted if the state court clearly and plainly relies on the 

default as an independent and adequate state law ground for its ruling. See Coleman, 501 U.S. at 

730; see also Braun, 227 F.3d at 912 (the state court must have actually and “clearly and 

expressly” relied on the procedural default as the basis of its ruling, otherwise the procedural 

default will not bar federal habeas review).

 The procedural default rule is grounded in principles of comity; where the state court has 

not seen fit to invoke the petitioner's procedural default under state law, comity compels respect 

for that approach rather than an effort to enforce a procedural rule the state court opted not to 

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apply. See Coleman, 501 U.S. at 730–31. Accordingly, the Court concludes that Claims A, B, 

and C are not procedurally defaulted. 

B. Claim A – Substitution of Judge at Trial – Is Cognizable But Fails on the Merits. 

In his habeas petition, Birdo claims that the motion he brought to substitute the trial judge 

was improperly denied. Birdo argues that he had an absolute right to substitute the judge under 

725 ILCS 5/114-5(a), which states, in relevant part, 

Within 10 days after a cause involving only one defendant has 

been placed on the trial call of a judge the defendant may move the 

court in writing for a substitution of that judge on the ground that 

such judge is so prejudiced against him that he cannot receive a 

fair trial. Upon the filing of such a motion the court shall proceed 

no further in the cause but shall transfer it to another judge not 

named in the motion. 

Birdo states in his reply brief that the denial of his motion caused his due process rights under the 

Fourteenth Amendment to be violated. Dkt. 16 at 4, 6-7. He adds that Judge Coogan, the Logan 

County Circuit Court judge who presided over the first and second trials, was prejudiced against 

him at his second trial because he heard Birdo testify and required him to wear full upper-body 

restraints at the first trial. Id. at 5. At the second trial, Birdo argues, Judge Coogan again required 

Birdo to wear leg shackles in full view of the jury. Id. Finally, Birdo argues that “[h]ad Judge 

Coogan not sat on the new trial the outcome would have been different.” Id. at 7. 

The respondent argues that Claim A is not cognizable on federal habeas review because 

Birdo presents solely a question of state law, namely, a state procedural rule. Dkt. 14 at 12. The 

respondent adds that Birdo expressly acknowledged in his federal habeas petition that any right 

conferred by § 5/114-5(a) “was a state-created right.” Id. at 13.

1. Claim A is Cognizable. 

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 In a federal habeas proceeding, a federal court may only consider a petitioner’s claims 

that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 

U.S.C.A. § 2254(a). In other words, “errors of state law in and of themselves are not cognizable 

on habeas review.” Perruquet v. Briley, 390 F.3d 505, 511 (7th Cir. 2004) (citing Estelle v. 

McGuire, 502 U.S. 62, 67–68 (1991)). Construed as a claim based solely on the denial of a 

procedural right provided by state law, Birdo’s claim would fail because it is not cognizable on 

federal habeas review. 

 A defendant has a Fourteenth Amendment due process right to a fundamentally fair trial, 

however, but only if the state court committed an error “so serious as to render it likely that an 

innocent person was convicted can the error be described as a deprivation of due process.” Id. at 

510-511 (citations omitted). Birdo’s claim concerning the improper denial of his motion to 

substitute the trial judge implicates due process, since a fair trial requires an impartial judge free 

from personal conviction as to the guilt or innocence of the accused. See People v. Robinson, 18 

Ill. Ap. 3d 804, 808 (1974). Although Birdo did not specify a connection between his claim and 

due process in his habeas petition, and in fact referenced a “state-created right,” he also 

referenced due process multiple times in his reply brief. Dkt. 16 at 4, 6-7. Construing Birdo’s 

claim liberally, as required—see, e.g., Ward v. Jenkins, 613 F.3d 692, 697 (7th Cir. 2010)—the 

Court concludes that Birdo adequately alleges a due process violation arising from the trial 

judge’s denial of the substitution motion. Further, Birdo’s pro se filings do not eliminate the 

constitutional dimension to a defendant’s motion to substitute the judge, as confirmed by the 

Illinois Supreme Court. See People v. Evans, 209 Ill. 2d 194, 215 (2004) (“[S]ection 114-5(a) 

involves defendant’s right to a fair trial, a right of a constitutional dimension ....”). In sum, 

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Birdo’s claim is cognizable on federal habeas review, as it is inherently a due process claim and 

he stated as much in his reply and throughout his references to this issue since his second trial.

2. Claim A Fails on the Merits. 

 The Illinois Appellate Court summarily denied Birdo’s petition for rehearing, including 

his substitution of judge claim. No. 4-10-0198 (Ill. App. Ct. 4th Dist. Nov. 9, 2011). If a state 

court summarily disposes of a claim without setting forth the legal or factual basis for its denial, 

the federal habeas court should follow the pre-AEDPA standard of review as stated in 28 U.S.C. 

§ 2243, which requires the Court to “dispose of the matter as law and justice require.” Myartt v. 

Frank, 395 F.3d 782, 783-84 (7th Cir. 2005) (where the state court of appeals did not address the 

petitioner’s claim, the federal court should apply the pre-AEDPA standard of review) (citing 

Braun v. Powell, 227 F.3d 908, 917 (7th Cir. 2000)).

 Whether construed as a due process claim or not, Birdo’s argument that he was 

improperly denied a substitution of the trial judge fails. As a due process claim, the claim fails 

because his assertions that the trial judge was biased against him are insufficient for this Court to 

consider relief. In support of his claim, Birdo asserts only that the judge was biased because (i) 

he had heard Birdo’s testimony; and (ii) the judge forced Birdo to sit shackled and in full upperbody restraints at his first trial. Dkt. 16 at 4-5. The Due Process Clause guarantees litigants an 

impartial judge. See Montgomery v. Uchtman, 426 F.3d 905, 910 (7th Cir. 2005) (citations 

omitted). Further, a judge must recuse himself when he has a “bent of mind that may prevent or 

impede impartiality of judgment.” United States v. Barnes, 909 F.2d 1059, 1071-72 (7th Cir. 

1990) (citation omitted). An allegation of partiality, however, “must not ... be mere conclusions, 

opinions, or rumors ... [T]he bias [must be] personal rather than judicial.” Id. at 1072.

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 Here, the fact that Judge Coogan presided over Birdo’s first trial is of no consequence to 

Birdo’s due process rights. See, e.g., Lasley v. Hanks, 78 F.3d 586, 586 (7th Cir. 1996) (habeas 

petitioner was not denied due process where state judge refused to recuse himself because “there 

is nothing constitutionally untoward about the same judge presiding over successive trials with 

the same defendant”); see also, e.g., People v. Melka, 319 Ill. App. 3d 431, 442-43 (2000) (trial 

court did not deny defendant due process by denying motion to substitute judge that was based 

on judge’s previous participation in earlier trial for same defendant on same charge). 

 Further, Birdo’s assertion that the judge showed bias by forcing him to sit in restraints 

does not rise to the level of a due process violation. A criminal defendant has the right to appear 

before a jury free from shackles or other physical restraints. U.S. v. Van Sach, 458 F.3d 694, 699 

(citing Illinois v. Allen, 397 U.S. 337, 344 (1970)). This right, however, is not absolute. See id.

(citing Holbrook v. Flynn, 475 U.S. 560, 567-68 (1986)). “The right to be free from shackles at 

trial ‘may be overcome in a particular instance by essential state interests such as physical 

security, escape prevention, or courtroom decorum.’” Id. (quoting Deck v. Missouri, 544 U.S. 

622, 629 (2005)). Judge Coogan required Birdo to wear leg shackles and handcuffs at the first 

trial because of the “nature of the charge” and not “unfair prejudice.” Dkt. 15-15 at 3-4. 

Responding to Page’s request, Judge Coogan told the jury panel, before selection, that Birdo was 

wearing handcuffs and leg shackles because of “routine policy when someone is being held in 

custody ... and when they come to trial.” Id. at 7. He added that it was “not any evidence of 

guilt.” Id. After trial, Judge Coogan granted Birdo’s motion for a new trial due, in part, to the 

restraints that Birdo was required to wear at the first trial. Dkt. 15-17 at 2. For the second trial, 

Judge Coogan ordered that Birdo wear leg shackles but not handcuffs or a waist chain. Dkt. 15-

13 at 24. He noted that the leg shackles would be obscured by a curtain and that he would allow 

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Birdo to relocate to the witness stand outside the presence of the jury. Id. at 24-25. He based his 

decision on the fact that there were “allegations of crimes of violence, prior crimes of violence, 

and allegations here of violence against correctional officers.” Dkt. 15-13 at 26-27. He 

concluded, “I find that my responsibility for the safety of the people in the courtroom overrides 

the freedom here for the leg irons.” Id. at 27. Judge Coogan’s rulings as to the restraints issue 

were sufficiently thorough and reasoned, and he cited physical security as one of his reasons. See

Van Sach, 458 F.3d at 699. Further, he was flexible in responding to requests from Page to adjust 

his rulings in an effort to reduce prejudice to Birdo. Birdo has therefore not shown sufficient bias 

on the restraints issue to frame a due process violation.10

 And even if Birdo could proceed on this claim based on the requirements of the statute 

itself (and he cannot, as that is an issue of state, not federal, law), the claim would fail because 

Birdo did not seek the substitution within the time period authorized by the Illinois statute. Birdo 

raised the issue with the trial judge orally and pro se (without Page’s adoption) on the morning 

of his second trial (November 17, 2003), based on a motion that he apparently had signed, 

notarized, and filed on November 12, 2003. Dkt. 15-6 at 149.11 Birdo asserts that he was entitled 

to an automatic, non-discretionary order of substitution pursuant to 725 ILCS 5/114-5(a), but he 

10 Judge Coogan stated in denying Birdo’s motion to dismiss the indictment, “This case is 

an old case. It is ready for trial ... You were convicted by a jury here ... I said you need to have 

another trial. Now, if you think there was a mistake on that, I suppose we can go back and 

reinstate the prior verdict. I don’t think that is what you want, but I’m not going to dismiss this 

case.” Dkt. 15-13 at 40-41. Birdo did not point to this statement as the basis for his motion when 

he first made the substitution motion (immediately after Judge Coogan’s statement) or at any 

later point in his pleadings. And while a bit sarcastic, the statement does not provide sufficient 

prejudice to sustain a claim. See, e.g., People v. Berry, 241 Ill. App. 3d 993, 996, 997-98 (1993) 

(judge not prejudiced where he stated that he “had an idea how the jury might rule”); People v. 

Damnitz, 269 Ill. App. 3d 51, 53, 58 (1994) (judge not prejudiced where he told jury after verdict 

that he would have convicted defendant of charge on which jury had acquitted). 

11 The motion is file-stamped with the date November 17, 2003. Dkt. 15-6 at 149. 

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simply filed his motion for substitution too late. The statute provides that motions for 

substitution must be filed “within 10 days after a cause involving only one defendant has been 

placed on the trial call of a judge.” 725 ILCS 5/114-5(a); Evans, 209 Ill. 2d at 216 (defendant’s 

motion for automatic substitution of judge made on first day of trial was untimely). Further, the 

Illinois Supreme Court has held that “a request for automatic substitution must be made before 

the trial judge rules on a substantive matter.” People v. Jones, 197 Ill.2d 346, 353 (2001) (in 

People v. Emerson, 122 Ill.2d 411, 424 (1987), “we held that remand is considered a 

continuation ... [S]ubstantive rulings made in Emerson’s first trial served as substantive rulings 

in his second trial and made a subsequent motion on remand for automatic substitution 

untimely.”) Here, Birdo did not make his motion until after his first trial and just before his 

second trial. Judge Coogan had already made many substantive rulings, beginning with rulings 

made before and during Birdo’s first trial. Birdo’s motion for substitution was therefore 

untimely. 

 Claim A, in sum, fails on the merits. 

C. Claim B – Supreme Court Rule 13 Violation – Is Not Cognizable.

Birdo next alleges that his first two public defenders violated Illinois Supreme Court Rule 

13 by leaving his case without filing motions to withdraw. Illinois Supreme Court Rule 13 states, 

in relevant part, 

An attorney may not withdraw his appearance for a party without 

leave of court and notice to all parties of record, and, unless 

another attorney is substituted, he must give reasonable notice of 

the time and place of the presentation of the motion for leave to 

withdraw, by personal service, certified by mail, or a third-party 

carrier, directed to the party represented by him at his last known 

business or residence address. 

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ILCS S. Ct. Rule 13(c)(2). Birdo asserts that he was not notified of the departure of his two 

attorneys and that he did not know who was representing him at certain times. Dkt. 1 at 5. He 

further asserts that a list of witness names that he sent to one attorney was lost after that attorney 

left his case, and that this loss prejudiced him because he was unable to call those witnesses at 

trial. Id. In his reply brief, Birdo asserts that his due process rights were violated when each 

attorney withdrew from his case without notifying him. Dkt. 16 at 8. 

The respondent argues that Claim B is not cognizable on federal habeas review because 

Birdo presents solely a question of state law, namely, a state procedural rule. Dkt. 14 at 12-13. In 

a federal habeas proceeding, a federal court may only consider a petitioner's claims that he is in 

custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C.A. 

§ 2254(a). In other words, “errors of state law in and of themselves are not cognizable on habeas 

review.” Perruquet, 390 F.3d at 511 (citing Estelle, 502 U.S. at 67–68). 

The Court agrees with the respondent that Claim B is not cognizable. Birdo cites to 

Illinois Supreme Court Rule 13 and makes references to due process in certain of his pleadings. 

Yet a violation of Illinois Supreme Court Rule 13 does not implicate Birdo’s constitutional 

rights, and in particular his right to counsel, because the rule itself does not confer on Birdo a 

constitutional right to counsel. Without conferring such a right, Birdo cannot be deprived of a 

right by a violation of Rule 13. See, e.g., People v. Howard, 376 Ill. App. 3d 322, 342-43 (2007) 

(defendant’s constitutional right to counsel not violated when trial court permitted attorney to 

withdraw because of counsel’s strong desire to be released). Further, Birdo was at all times 

represented by the Logan County Public Defender. Since Birdo did not have the right to be 

represented by a particular public defender within the Logan County Public Defender’s Office, 

he could not be deprived of that right either. See People v. DeRossett, 262 Ill. App. 3d 541, 543-

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44 (1994) (an indigent defendant does not have a right to court-appointed counsel of his choice, 

nor does a defendant have the right to select a particular assistant public defender to represent 

him) (citations omitted). Birdo had counsel at all times. That one attorney failed to formally 

withdraw after another had assumed the representation did not violate Birdo’s right to counsel 

under the Sixth Amendment and Claim B is therefore denied as not cognizable. 

D. Claim C – Prosecutor’s Sustained Objection to Question Regarding Strike 

Without Provocation – Is Not Cognizable. 

In his third claim, Birdo asserts that the trial court prevented him from pursuing a 

defense and violated his right to confrontation when it prevented Page from impeaching Officer 

Cowan on cross-examination with evidence that he had a potential motive to testify falsely. 

Specifically, the trial judge sustained the state’s objection to the following cross examination: 

PAGE: Q [Posed to Craig Cowan]: What would happen to a 

correctional officer if without provocation they put their hands on 

an inmate or assaulted an inmate? What would happen? 

WRIGHT: I am going to object, your Honor. I don’t think it is 

relevant. There has been no evidence offered to show that is even a 

relevant issue. 

THE COURT: Objection sustained. 

Dkt. 15-13 at 152. Birdo argues that if the objection was instead overruled, Birdo would have 

been able to present a defense that the officers were lying to avoid being disciplined for the 

incident. Dkt. 16 at 9. 

The respondent argues that Claim C is not cognizable on federal habeas review because 

Birdo presents solely a question of state law, namely, an evidentiary ruling by the state trial 

court. Dkt. 14 at 13.

Evidentiary rulings of state trial courts are normally not subject to habeas review. See 

Dressler v. McCaughtry, 238 F.3d 908, 914 (7th Cir. 2001). The Due Process Clause does not 

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permit a federal court to “engage in a finely tuned review of the wisdom of state evidentiary 

rules.” Estelle, 502 U.S. at 72 (citation omitted). A defendant has a Fourteenth Amendment due 

process right to a fundamentally fair trial but only if the state court committed an error “so 

serious as to render it likely that an innocent person was convicted” and only then “can the error 

be described as a deprivation of due process.” Perruquet, 390 F.3d at 510-511 (citations 

omitted); see also Dressler, 238 F.3d at 914 (citing Thompkins v. Cohen, 965 F.2d 330, 333 (7th 

Cir. 1992)). 

Construing Birdo’s claim liberally, Birdo does not come close to showing that the state 

trial court’s ruling is subject to habeas review. See, e.g., Ward v. Jenkins, 613 F.3d 692, 697 (7th 

Cir. 2010). Although Birdo ties his claim to due process several times in his reply brief, at issue 

is a single question, which was prevented from being answered by a run-of-the-mill evidentiary 

ruling by the trial court. A single question not asked, whether prohibited in error or not, does not 

render it likely that Birdo was wrongly convicted and therefore cannot be described as a 

deprivation of due process. Perruquet, 390 F.3d at 510-11. And in any event, the question was 

not necessary to the jury’s determination of Birdo’s guilt or innocence. Whether or not this 

particular question was asked of Officer Cowan, the jury did not need this testimony to infer that 

if a guard punched an inmate for no reason at all, the guard would be at risk of disciplinary 

action. Rather, the question was squarely in the realm of the jury’s common sense. For these 

reasons, Claim C is denied as not cognizable.

E. Claim D – Ineffective Assistance of Counsel. 

The Court turns now to Birdo’s claim for ineffective assistance of counsel. Birdo asserts 

that his trial attorney, Page, was ineffective for failing to investigate a potentially exculpatory 

witness, bus driver and correctional officer David Young. 

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1. The History of the Claim. 

Birdo has been raising this claim and facts related to this claim since before his first trial. 

The following is a brief history of the claim: 

x Pre-Trial Statements of Witnesses Corroborating Birdo’s Allegation that the 

Bus Driver Was on the Bus and Involved in the Incident: 

o Mauricio Rivas: “I don’t remember exactly what that officer said in 

response, but I remember it being some type of rude and callous comment 

because it even made me mad.” Dkt. 15-6 at 44.

o Lonnie Henry: “I also heard the c/o that drove the bus tell the c/o 

involved in the incident not to worry, ‘that they’ll take care of it and 

nobody will believe a[n] inmate just be cool and don’t do nothing else.’” 

Dkt. 15-6 at 51.

x August 2002 First Trial: Birdo testified, “I believe the bus driver said – he made 

some type of derogatory statement ... I’m not 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.” “Q: Okay, and you don’t know who said that? A: I believe 

it was the bus driver.” Dkt. 15-5 at 190. 

x November 2003 Pre-Trial Motions: Birdo raised three pro se motions on the 

morning of his second trial, including a motion to dismiss the indictment in part 

because “Page did not promptly comply 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. In 

Birdo’s motion for a continuance, he wrote that he needed a “substantial 

continuance to ascertain the bus driver’s name and whereabouts ....” Dkt. 15-6 at 

229.

x November 2003 Second Trial:12 Birdo testified, “The bus driver interjected and 

said some type of derogatory comment and they laughed about it. He said 

12 Page mentioned the presence of Young in his closing argument: “... an interesting 

point I suppose the theory is by the prosecution that Mr. Birdo struck Officer Wagner because he 

was cold because he wanted on the bus. Yet it was interesting according to Kevin, and I don’t 

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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.” Dkt. 15-13 at 166-

67.

x July 2005 Direct Appeal: Birdo raised a claim for ineffective assistance of 

counsel as to Page for failing to call certain witnesses, including Young, in his 

brief before the Illinois Appellate Court and in his Petition for Leave to Appeal to 

the Illinois Supreme Court. Dkt. 15-2 at 15, 17; Dkt. 14-5 at 11, 14.

x July 2006 Post-Conviction: In his pro se state court post-conviction petition, 

Birdo raised a claim for ineffective assistance of counsel as to Page for failing to 

interview several important witnesses, including Young. In his December 2008 

amended petition (submitted by appointed counsel Wray), Birdo raised the claim 

as to Page for failing to investigate whether Young was present or had knowledge 

of the incident. Dkt. 15-6 at 221, 267-70.

x March 2010 Evidentiary Hearing: Page, the only witness called by Birdo’s 

post-conviction trial counsel (Wray), testified (as summarized above at 9-10) that 

he did not believe he had a report from the state regarding the bus driver, and that 

“quite frankly from my recollection I don’t recall him ever giving a statement that 

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

even present for this alleged altercation.” Page further testified that Birdo told him 

that Young was present during the incident and that he “guess[ed]” he could have 

tracked Young down. Dkt. 15-21 at 19-21, 23-24. The circuit court granted the 

State’s motion for a directed finding but did not mention Young in its oral 

pronouncement. Dkt. 15-21 at 29-32. 

x Post-Conviction Appeal: Birdo raised a claim for ineffective assistance of 

counsel as to Page for failing to investigate Young in his brief before the Illinois 

Appellate Court (Dkt. 15-7 at 11-14), in his pro se petition for rehearing before 

the Illinois Appellate Court (Dkt. 23-1 at 2-3), and his pro se petition for leave to 

appeal to the Illinois Supreme Court (Dkt. 15-11 at 4-5). 

The Illinois Appellate Court reviewed Birdo’s ineffective assistance of counsel claim on 

the merits after the trial court denied the claim following the evidentiary hearing. In its written 

order of October 14, 2011, the appellate court described Page’s testimony at the evidentiary 

know if that was adopted by the prosecutor, but apparently there was a comment made to Kevin 

by the bus driver much more egregious I would think than that. Kevin Birdo never struck out at 

the bus driver for making some type of derogatory remark. He didn’t do that.” Dkt. 15-14 at 238. 

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hearing held in the Logan County Circuit Court. The appellate court wrote that Page 

“acknowledged that defendant had told him that Young was present during the incident and 

admitted he could have ‘track[ed] him down.’” Dkt. 15-10 at 5. The appellate court added: 

In its oral pronouncement, the [circuit] court did not analyze or 

mention Page’s conduct of not contacting Young. However, we 

find the court’s analysis would apply equally to Young. Page 

indicated he did not contact Young, though he could have 

“track[ed] him down,” because references in the discovery and 

testimony at the first trial indicated that Young had no knowledge 

of the incident. (We note that testimony at the second trial also 

indicated Young was not on the bus at the time of the incident.) 

Failing to investigate a witness that purportedly had no knowledge 

cannot constitute substandard performance ... Further, as the 

circuit court noted, defendant failed to present evidence that would 

demonstrate that he was prejudiced by counsel’s alleged 

ineffectiveness. He did not produce any information to the court by 

way of testimony or affidavits that would have revealed the extent 

of Young’s knowledge or the nature of his proposed testimony had 

he been called as a witness ... Defendant failed to demonstrate that 

the outcome of his trial would have been different had Page 

contacted Young. Without more, defendant cannot establish a 

successful claim that Page rendered ineffective assistance of 

counsel by not investigating Young’s involvement in or knowledge 

of the incident. 

Dkt. 15-10 at 9-10. The appellate court further found that Birdo’s claim for ineffective assistance 

of appellate counsel as to post-conviction counsel Wray—for not presenting testimony or 

statements from Young and other witnesses at the evidentiary hearing—also failed. Id. at 10-11. 

The appellate court stated that Wray could not be deemed ineffective for failing to perform a 

futile act, made futile because Page testified at the evidentiary hearing that he made a reasonable 

professional judgment not to investigate Young’s involvement. Id. at 10.

2. The Illinois Appellate Court’s Application of Strickland Was 

Unreasonable.

Where a federal habeas court reviews a state court’s adjudication of a petitioner’s 

ineffective assistance claim on the merits, 28 U.S.C. § 2254(d) applies and the question is 

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“whether the state court’s application of the Strickland standard was unreasonable.”13 Harrington

v. Richter, 131 S. Ct. 770, 785 (2011); see also Malone v. Walls, 538 F.3d 744, 758-59 (7th Cir. 

2008) (“[T]he petitioner must establish that ‘[t]he state court’s application of Strickland [was] 

objectively unreasonable and not merely erroneous.’”) (citations omitted). Further, when 

AEDPA’s “highly deferential” standard for review of a state court’s application of federal law 

applies in tandem with Strickland’s “highly deferential” standard for an attorney’s performance, 

“review is ‘doubly so.’” Harrington, 131 S. Ct. at 788 (citation omitted). Thus, “[w]hen 

§ 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is 

whether there is any reasonable argument that counsel satisfied Strickland’s deferential 

standard.” Id. 

This Court first finds that under § 2254, the Illinois Appellate Court correctly stated the 

Strickland standard, and so the court’s decision is not contrary to clearly established federal 

law.14 See Malone, 538 F.3d at 757-58.

This Court concludes, however, that the Illinois Appellate Court’s application of 

Strickland to the facts before it was unreasonable. As an initial matter, the state court speculated, 

with no basis whatsoever, that the circuit court’s “analysis would apply equally to Young.” Dkt. 

15-10 at 9. The fact of the matter is that the circuit court did not apply its analysis to Page’s 

alleged failure to investigate Young, and to guess that the circuit court intended to address the 

13 This Court reviews the opinion of the Illinois Appellate Court, the last state court to 

rule on the merits of the issue. See Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) (“a 

federal court reviewing a habeas petition should examine the decision of the last state court to 

rule on the merits of the issue.”). 

14 Under Strickland, “the right to counsel is the right to the effective assistance of 

counsel.” Missouri v. Frye, 132 S. Ct. 1399, 1404 (2012). To establish a claim under Strickland,

Birdo must show that he received deficient assistance, and that there was prejudice as a result. 

Strickland v. Washington, 466 U.S. 668, 690 (1984). 

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Young issue in the same manner, in addition to the other witnesses the circuit court did address, 

is flatly unreasonable given the state of the record. See Taylor v. Grounds, 721 F.3d 809, 822 

(7th Cir. 2013) (holding that trial court’s sparse decision containing no mention of fact and no 

application of law to issue at hand could not support the higher court’s determination). 

a. The state court unreasonably applied Strickland as to Page’s 

performance.

Under Strickland, a petitioner must first show that his counsel’s performance “fell below 

an objective standard of reasonableness.” 466 U.S. at 688. Review of an attorney’s performance 

is “highly deferential and reflects a strong presumption that counsel’s conduct falls within the 

wide range of reasonable professional assistance ... So long as an attorney articulates a strategic 

reason for a decision that was sound at the time it was made; the decision generally cannot 

support a claim of ineffective assistance of counsel.” Yu Tian Li v. United States, 648 F.3d 524, 

527-28 (7th Cir. 2011). “But the presumption applies only if the lawyer actually exercised 

judgment.” Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012). If a trial attorney’s 

investigation of a potential witness was unreasonably limited, trial counsel’s decision not to 

investigate a particular witness is “too ill-informed to be considered reasonable.” Stitts v. Wilson,

713 F.3d 887, 891 (7th Cir. 2013) (citing Mosley, 689 F.3d at 848). Here, there is no evidence 

that Page made a considered judgment not to interview Young to find out what he would say 

(and, indeed, it is difficult to understand what the downside to conducting such an interview 

might have been, particularly given Page’s acknowledgement that it would not have been hard to 

do).

To begin, Page plainly had reason to believe that Young may have been present during 

the alleged battery. There is ample evidence in the state record that Page ignored Birdo’s pleas to 

investigate Young and that Page knew, from various sources, that Young was a potentially 

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exculpatory eyewitness. Before Birdo’s first trial, for example, Page was in receipt of, and filed 

with the court on August 6, 2002 (Dkt. 15-6 at 37), two witness statements from inmates who 

claimed to be eyewitnesses and pointed to the bus driver’s presence during the incident. See

Rivas Stmt. (Dkt. 15-6 at 44) (“I don’t remember exactly what that officer said in response, but I 

remember it being some type of rude and callous comment because it even made me mad.”); see

also Henry Stmt. (Dkt. 15-6 at 51) (“I also heard the c/o that drove the bus tell the c/o involved 

in the incident not to worry, ‘that they’ll take care of it and nobody will believe a[n] inmate just 

be cool and don’t do nothing else.’”). At the first trial, Page continued to hear about Young when 

Birdo testified that he believed it was the bus driver who made a racially derogatory comment 

when Birdo attempted to get on the bus. Dkt. 15-5 at 190 (“I believe the bus driver said – he 

made some type of derogatory statement ... [H]e said something about I guess we’re going to 

have some fudge sickles, or something like that, for dessert.”). On the morning of his second 

trial, Birdo told the trial court that Page refused to investigate Young, and filed with the court a 

motion for a continuance so that Young could be investigated. Dkt. 15-13 at 34 (“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. 15-6 at 229 (“[D]efendant disclosed 

information to his attorney Jeff Page concerning a bus driver ... [T]he defendant needs a 

substantial continuance to ascertain the bus driver’s name and whereabouts ....”). Page 

ultimately admitted at the post-conviction evidentiary hearing that Birdo had told him about 

Young (Dkt. 15-21 at 23 (“Mr. Birdo did mention that, yes.”)) and that he could have tried to 

locate Young in order to determine what he would say about the incident. Id. at 24. 

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The only evidence in the state record that would support the Illinois Appellate Court’s 

reasoning as to Page’s performance is Page’s testimony at the evidentiary hearing that 

“references in the discovery and testimony at the first trial indicated that Young had no 

knowledge of the incident.” Dkt. 15-10 at 9. The appellate court’s reliance on this fact over other 

facts showing that Young was present during the incident was unreasonable for at least two 

reasons. First, so far as the record indicates, there are no “references in the discovery” that 

Young had no knowledge of the incident. The State’s discovery, on which Page purported to 

rely, included no reference to Young one way or another (the State has identified none and the 

Court has found none in the record), but the appellate court treated this absence of evidence as 

affirmative evidence that Young had no knowledge of the incident (i.e., that he was not present). 

But “absence of evidence is not evidence of absence.” In re Rail Freight Fuel Surcharge 

Antitrust Litig., 725 F.3d 244, 254 (D.C. Cir. 2013); United States v. Harris, 2009 WL 3055331, 

at *3 (N.D. Ill. Sept. 21, 2009) (Zagel, J.). Even standing alone, this was an unjustifiable 

inference, but all the more so when there was in fact evidence—in the form of two witness 

affidavits—asserting that Young was present. The appellate court noted several times that there 

was testimony at both trials from correctional officers who stated that Young was not present at 

the time of the incident, but Page never cited that testimony as a basis for his decision not to talk 

to Young. In any event, the cold record provides no basis for the appellate court to have credited 

the testimony of the officers over that of Birdo and Rivas. Further, contrary to the appellate 

court’s statement that “two witnesses testified at defendant’s trials that Young was not present 

during the incident,” only Officer Cowan affirmatively testified at both trials that Young was not 

present. While Officer Wagner listed the officers involved in the incident, at neither trial did he 

affirmatively testify that Young was not present. Dkt. 15-13 at 82; Dkt. 15-15 at 132-33. There 

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was, in short, no basis for the appellate court’s holding that a failure “to investigate a witness that 

purportedly had no knowledge cannot constitute substandard performance.” That statement is 

true enough, but beside the point. Birdo’s complaint (all along) has been that Young had

knowledge; the appellate court simply assumed that he did not and never considered the question 

of whether Page was deficient in failing to confirm that fact. 

Plainly, he was. Page did not offer a justification for failing to interview Young that was 

based on trial strategy, or any other rationale, at the evidentiary hearing. Rather, his decision to 

rely solely on the absence of information in the State’s discovery, and to ignore information from 

his own client, corroborated by two witnesses, was enough to provide the appellate court with 

evidence of Page’s substandard performance; “[f]ew decisions not to present testimony can be 

considered ‘strategic’ before some investigation has taken place.” United States v. Best, 426 F.3d 

937, 946 (7th Cir. 2005). See, e.g., Stitts, 713 F.3d at 892-94 (failure to investigate potential alibi 

witnesses held to be objectively unreasonable); Mosley, 689 F.3d at 848-49 (same); Malone v. 

Walls, 538 F.3d 744, 761-62 (7th Cir. 2008) (noting that “despite the importance of the evidence 

... the record does not suggest a concrete reason why [defendant’s] counsel chose not to call [the 

witness]”); Hampton v. Leibach, 290 F. Supp. 2d 905, 923 (N.D. Ill. 2001) (Kennelly, J.) 

(unreasonable defense found where attorney “failed to follow up with the witnesses whose 

names [the defendant] had given him.”); Bryant v. Scott, 28 F.3d 1411, 1415 (5th Cir. 1994) 

(“[F]ailure to interview eyewitnesses to a crime may strongly support a claim of ineffective 

assistance of counsel.”) (citations omitted); Sullivan v. Fairman, 819 F.2d 1382, 1391-92 (7th 

Cir. 1987) (holding that defense counsel’s performance was insufficient where counsel made 

only perfunctory attempts to locate exculpatory witnesses of which he was aware and because 

“counsel had reason to know, from an objective standpoint, that a possible defense ... [was] 

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available.”) (citation omitted). In sum, the state court’s finding that Page’s failure to determine 

what, if anything, Young witnessed did not constitute substandard performance was an 

unreasonable application of the first prong of Strickland.

b. The state court unreasonably applied Strickland when it found 

no prejudice. 

As to prejudice, a petitioner must demonstrate “a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Id. It is not enough to show that “the errors had some conceivable 

effect on the outcome of the proceeding.” Id. at 693. Counsel’s errors must be “so serious as to 

deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687. In other words, the 

likelihood of a different result must be substantial, not just conceivable. Id. at 693.

The problem Birdo faces here, as the respondent points out, is that he presented no 

evidence to the state courts to establish that Page’s failure to investigate Young resulted in 

prejudice to Birdo. The respondent maintains that Birdo’s failure to proffer an affidavit by 

Young in state court establishing what his testimony would be is fatal to his claim of prejudice. 

But that is only true if the state court’s application of the prejudice prong of Strickland

was within the bounds of reason. Here, it was not. The state 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, as already discussed, there was virtually 

no basis to draw that conclusion. The court did not know what, if anything, Young had to say 

about the incident. It follows that the appellate court could not know, without assuming, whether 

Young’s testimony would create a reasonable probability that the outcome of Birdo’s trial would 

have been different. No fair-minded jurists could disagree on this point. See Harrington, 131 S. 

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Ct. at 786 (“A state court’s determination that a claim lacks merit precludes federal habeas relief 

so long as ‘fairminded jurists could disagree’ on the correctness” of the state court’s decision) 

(citation omitted).

The appellate court could just as easily have assumed the presence of prejudice. The 

state’s case at the second trial rested heavily on the testimony of two correctional officers, 

Wagner and Cowan, and Birdo’s case rested heavily on his own testimony. In the state’s closing, 

the prosecutor pointed to this fact: “You have heard the testimony of Officer Wagner and of 

Officer Cowan, and if we can just boil this case down to its basic elements, this case really 

comes down to who are you going to believe. You have their testimony contrasted against that of 

the defendant.” Dkt. 15-14 at 219. If Page had at least interviewed Young, as Birdo repeatedly 

requested, Birdo may have then called Young as a corroborating witness and a fairer contest at 

trial may have ensued. Instead of a one-sided version of events, there may have been a contest 

between competing eyewitness testimony, and a reasonable probability that a jury would have 

reasonable doubt as to Birdo’s guilt. See Stitts, 713 F.3d at 894 (citing Washington v. Smith, 219 

F.3d 620, 635 (7th Cir. 2000) (“All [the defendant] needed to do was establish a reasonable 

doubt, and having additional, credible alibi witnesses would have covered a lot of ground toward 

that goal”)).

In Stitts, the Seventh Circuit confronted a similar situation. The petitioner asserted that 

his trial counsel was ineffective because, before deciding not to present an alibi defense, the 

attorney interviewed only one witness and failed to investigate any other witnesses. 713 F.3d at 

888. In an affidavit, submitted as evidence at a state post-conviction hearing, the trial attorney 

stated that he recalled considering an alibi defense, “but ultimately ch[o]se not to pursue” it 

because “I do not recall there being any quality witnesses to testify on his behalf ....” Id. at 890. 

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The affidavit did “not specifically mention the extent of his alibi investigation.” Id. After the 

district court denied Stitts’s habeas petition, the Seventh Circuit held that the state court 

unreasonably applied Strickland as to both prongs. Id. at 892-93. As to prejudice, the court noted 

that the prosecution’s case “rested entirely” on two witnesses and that the defendant’s version of 

events could have been corroborated by the testimony of additional witnesses. Id. at 894 (“[I]f 

these witnesses testified, the trial would have been transformed from a one-sided presentation of 

the prosecution’s case into a battle between competing eyewitness testimony, where there would 

have been a ‘reasonable probability’ that a jury would have reasonable doubt as to [the 

defendant’s] guilt and therefore acquit.”). Further, the court found that the trial attorney’s 

affidavit was “entirely silent about the extent of his investigation.” Id. at 895. The state court 

“essentially assumed for the sake of argument that trial counsel’s investigation was limited to 

[one witness], but concluded (unreasonably) that such a limited investigation would have passed 

constitutional muster anyway.” Id. at 895. The court added, “Nor is the record so clear that we 

can simply answer this question as an appellate court.” Id. The Seventh Circuit remanded the 

case to the district court to first determine the extent of trial counsel’s investigation and then to 

determine de novo whether that investigation constituted ineffective assistance under Strickland.

Id.

As in Stitts, the state appellate court in Birdo’s case made an assumption on a record that 

suffers from a lack of critical information about the testimony of a potentially key witness. We 

know no more about what Young would have said about the incident had Page contacted him 

than the Stitts court knew about the potential alibi witnesses who may never have been 

interviewed in that case. Indeed, this case presents a stronger case for prejudice than did Stitts.

There, the record left it unclear whether defense counsel had interviewed potentially critical 

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witnesses; here, the record makes clear that defense counsel did not. The state court’s application 

of Strickland’s prejudice prong, therefore, was unreasonable under § 2254(d)(1). 

3. An Evidentiary Hearing Under § 2254(e) May Be Necessary.

Now that this Court has found that the state appellate court unreasonably applied 

Strickland, what remains to be resolved is 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. This significant factual question remains unanswered by the state courts and in the 

state court record before this Court. An evidentiary hearing under § 2254(e) therefore may be 

necessary to give both Birdo and the respondent an opportunity to develop evidence. See Stitts,

713 F.3d at 895 (“Remand [to review facts outside the state record and for an evidentiary hearing 

if necessary] is appropriate in situations like these because the state court did not make a critical 

factual finding to which we may defer.”); see also Quintana v. Chandler, 723 F.3d 849, 852, 855 

(7th Cir. 2013) (once a state court decision is found to be an unreasonable application of federal 

law, a federal court can benefit from an evidentiary hearing under § 2254(e)).

To be clear, the opportunity to develop this evidence is limited. First, this Court has 

enough information, based on the state record, to find that Page’s performance was deficient. An 

evidentiary hearing would therefore be restricted to the unresolved question of whether Page’s 

deficient performance with respect to investigating Young’s potential testimony in fact 

prejudiced Birdo. The sole evidence that would be helpful to answer this question is what David 

Young would have said had Page asked him about the incident and whether that information 

would have corroborated Birdo’s version of events. This evidence may be collected by finding 

and interviewing David Young and/or by identifying other evidence, if it exists, that shows what 

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Young would have said about the incident.15 If Birdo’s appointed counsel learns through 

investigation that Young’s testimony would be unhelpful (for whatever reason) to answering the 

unresolved question facing this Court, an evidentiary hearing will not be necessary. If, on the 

other hand, Birdo’s appointed counsel learns that Young’s testimony (or any other evidence) will 

be helpful, an evidentiary hearing will be necessary. In other words, what, if anything, Young 

now has (or once had) to say about the incident is the critical question, and the only question that 

is potentially ripe for a hearing.16

In reaching this conclusion, the Court recognizes the limitations imposed by AEDPA on a 

federal habeas court’s authority. Review by a federal court under § 2254(d) is limited to 

reviewing a state court’s “adjudication on the merits.” Recent Supreme Court precedent limits 

that review to “the record that was before the state court that adjudicated the claim on the 

merits.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). The Seventh Circuit’s opinion in 

Mosley v. Atchison provides clear guidance to district judges on how to proceed in a habeas case 

in the post-Pinholster world. 689 F.3d 838 (7th Cir. 2012). “Where a district court properly finds 

that a state court’s decision was contrary to or involved an unreasonable application of clearly 

established federal law, it must still answer the question underlying § 2254(a): whether a 

petitioner is actually ‘in custody in violation of the Constitution or laws or treaties of the United 

States.’” 689 F.3d at 842. In other words, “Pinholster does not confine a district court’s decision 

on that ultimate question under § 2254(a) to a limited state court record.” Id. See also Pinholster,

15 Rivas, Henry, and Hardaway were not raised as part of Birdo’s claim for ineffective 

assistance of counsel in his federal habeas petition. Page’s performance as to those potential 

witnesses, therefore, is not at issue, and in any event, Page testified about his considered reasons 

for not calling those witnesses during the state court post-conviction evidentiary hearing. 

16 The State, of course, will also have the opportunity at an evidentiary hearing to present 

any evidence relevant to the question of what Young’s testimony about the incident would have 

been.

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131 S. Ct. at 1412 (Breyer, J., concurring in part and dissenting in part) (“If the federal habeas 

court finds that the state-court decision fails (d)’s test (or if (d) does not apply), then an (e) 

hearing may be needed.”). 

Applying Mosley, this Court first assessed, above, whether Birdo properly established a 

case under § 2254(d) by looking only at the record that was before the state court. The Court 

found that Birdo was successful under § 2254(d)—the Illinois Appellate Court’s decision was an 

unreasonable application of both prongs of Strickland. The next step is to determine whether 

Birdo is, in fact, in custody in violation of the Constitution or laws or treaties of the United 

States. To answer this question, the state record is insufficient. Despite holding its own 

evidentiary hearing, the Logan County Circuit Court refrained from making any findings of fact 

as to Young. As discussed above, that factual void then appeared in the Illinois Appellate Court 

decision. Dkt. 15-10 at 9 (“[T]he court did not analyze or mention Page’s conduct of not 

contacting Young [but] we find the court’s analysis would apply equally to Young.”). The state 

record is ambiguous and does not provide this Court with certainty regarding whether or not 

Birdo is “in custody in violation of the Constitution or laws or treaties of the United States.” See

Taylor, 721 F.3d at 824 (remanding for an evidentiary hearing because “the state court did not 

make a critical factual finding to which we may defer.”); see also Stitts, 713 F.3d at 896 

(remanding for an evidentiary hearing not to determine whether state court unreasonably applied 

Strickland but to reach an issue the state court never addressed). This Court will consider 

additional evidence, if helpful and as limited by the restrictions mentioned above, presented at a 

federal evidentiary hearing to determine whether Birdo is entitled to relief. See Mosley, 689 F.3d 

at 854.

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The AEDPA also generally bars federal courts from holding evidentiary hearings to 

supplement the record. 28 U.S.C. § 2254(e)(2). Where, however, “the ‘fail[ure] to develop the 

factual basis of a claim in State court proceedings’ can not be attributed to something the 

petitioner ‘did or omitted,’ Section 2254(e)(2) does not apply and it is then necessary to evaluate 

the request for an evidentiary hearing under pre-AEDPA standards.” Matheney v. Anderson, 253 

F.3d 1025, 1039 (7th Cir. 2001). “Under pre-AEDPA standards, a federal evidentiary hearing is 

required if (1) a habeas petitioner alleges facts which, if proved, would entitle him to relief and 

(2) the state courts – for reasons beyond the control of the petitioner – never considered the claim 

in a full and fair hearing ....” Id. (citation omitted). See, e.g., United States of America, ex rel. 

Owens v. Acevedo, 2012 WL 1416432, at *13 (N.D. Ill. Apr. 23, 2012) (Pallmeyer, J.) (setting 

forth requirements under 2254(e)(2) after finding need for evidentiary hearing post-Pinholster). 

Birdo meets these requirements. First, the failure to develop the factual basis of Birdo’s 

ineffective assistance of counsel claim in state court cannot be attributed to something Birdo “did 

or omitted.” Birdo has diligently tried to develop the facts of his claim in state court, raising the 

claim at every opportunity, including before his second trial while Page was present. Yet Birdo 

has been stymied by the choices of his trial counsel and post-conviction counsel. As an inmate 

whose only access to assistance was counsel who have apparently disregarded Birdo’s claim as 

to Young, it is obvious that Birdo’s efforts were limited by others and not by any action or 

omission on his part. Further, Birdo did not miss the opportunity to claim that his post-conviction 

counsel, Wray, was ineffective for failing to investigate Young, either. Birdo has tried, in the 

best way he could, to raise the issue of Young’s presence; the failure to develop these facts in 

state court cannot be attributed to him.

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Second, Birdo has alleged facts which, if proved, would entitle him to habeas relief. 

Birdo alleges that Page failed to investigate Young, a potentially exculpatory witness, despite 

Birdo’s pleas. If Birdo is able to prove that Page’s deficient performance did, in fact, prejudice 

him, Birdo would be entitled to relief. Birdo is being given an opportunity to cure a deficiency in 

the state court record, a deficiency that is not due to his own lack of due diligence. This Court, 

after finding that the state court’s decision was unreasonable, will make a de novo determination 

regarding prejudice. The question that will face this Court is whether Birdo can show with the 

record he presents going forward that he was prejudiced by Page’s failure to find out what 

Young would have said about the incident. See Strickland, 466 U.S. at 694 (“The defendant must 

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.”). If Birdo cannot make that showing, which is his 

burden, his claim will fail on the merits. See id. (“a court making the prejudice inquiry must ask 

if the defendant has met the burden of showing that the decision reached would reasonably likely 

have been different absent the errors.”).

Third, because the facts regarding the potential prejudice caused by Page’s deficient 

performance have always been undeveloped, the state courts never provided Birdo with a “full 

and fair hearing” as to his ineffectiveness claim. Although the state circuit court held an 

evidentiary hearing, Young was never presented to testify nor did he submit an affidavit 

describing his potential testimony. His knowledge, potentially exculpatory to Birdo (or perhaps 

not) was a mystery. The circuit court, then, was unable to evaluate the prejudice Birdo may have 

suffered due to Page’s deficient performance, thus depriving Birdo of a “full and fair hearing” on 

this claim. These failures led to an undeveloped record—one which remains undeveloped 

today—regarding what Young would say had Page contacted him. 

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Finally, as to Birdo’s failure to attach an affidavit in state court averring the substance of 

Young’s testimony, the Illinois Appellate Court did not default Birdo for this potential error. 

Although the appellate court noted the absence of an affidavit from Birdo, Dkt. 15-10 at 9-10, it 

addressed the merits of Birdo claim in its entirety, without relying on the potential procedural 

error of the absent affidavit.17 Because the state court chose to ignore this default, it poses no 

obstacle to this Court’s consideration of Birdo’s ineffectiveness claim. See Coleman, 501 U.S. at 

730 (a claim is only procedurally defaulted if the state court clearly and plainly relies on the 

default as an independent and adequate state law ground for its ruling); see also Braun, 227 F.3d 

at 908 (the state court must have actually and “clearly and expressly” relied on the procedural 

default as the basis of its ruling, otherwise the procedural default will not bar federal habeas 

review).

* * * 

For the reasons set forth above, the Court will convene an evidentiary hearing if, after 

investigation, Birdo’s newly appointed counsel reports that an evidentiary hearing will be helpful 

to determine whether Page’s failure to investigate Young in fact prejudiced Birdo. All other 

claims set forth in the petition are denied. With resolution of a constitutional issue pending, the 

court declines to issue a certificate of appealability at this time. A status conference is set for 

December 17, 2013, at 9:00 a.m. to discuss a time table for counsel’s investigation and any 

hearing that may be required. 

17 Rather, the appellate court considered the absent affidavit as part of its merits 

determination and, in particular, under the second prong of Strickland. Dkt. 15-10 at 9-10. 

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Entered: December 12, 2013 John J. Tharp, Jr. 

United States District Judge 

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