IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

United States of America ex rel. ) 

JAMAEL BRAZZIEL, ) 

 ) 

 Petitioner, ) 

 ) CASE NO. 09 C 3757 

 v. ) 

 ) Judge Robert M. Dow, Jr. 

RICK HARRINGTON, Warden, ) 

Menard Correctional Center, ) 

 ) 

 Respondent. ) 

MEMORANDUM OPINION AND ORDER 

Petitioner Jamael Brazziel is currently incarcerated at Menard Correctional Center in 

Menard, Illinois. Rick Harrington,1

 the warden of the facility, has custody of Petitioner. 

Brazziel has filed a pro se writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons 

set forth below, the Court denies Brazziel’s petition for a writ of habeas corpus [7 and 9]. 

I. Background 

 A. Factual Background 

District court review of a habeas petition presumes all factual findings of the state court 

to be correct, absent clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); 

Daniels v. Knight, 476 F.3d 426, 434 (7th Cir. 2007). Therefore, the Court adopts the following 

accounts from the Illinois Appellate Court’s Order in People of the State of Illinois v. Brazziel, 

939 N.E.2d 989 (Ill. App. 1st Dist. 2010). 

 On April 26, 2006, Petitioner shot Larry Brown in the back of the head after learning that 

Brown had been involved in an altercation with his cousin. Police subsequently interviewed six 

 1

 The Court substitutes Rick Harrington, the current warden at Menard Correctional Center, for named 

Respondent Michael P. Atchison. See Fed. R. Civ. P. 25(d). 
2

witnesses, including Petitioner’s cousin, who had been present at the scene and identified 

Petitioner as the shooter. On April 9, 2008, a Cook County jury found Petitioner guilty of first 

degree murder, and the trial court sentenced Petitioner to a sixty-year prison term for that crime. 

 1. Trial 

 On direct appeal, the state appellate court summarized the evidence adduced at trial as 

follows: 

 The trial evidence demonstrated that a crowd of teenagers was gathered on 

the street around 9 P.M. on April 26, 2006. The victim had been ‘slap boxing’ 

with a girl named Jean McDaniel. McDaniel alerted her cousin, Anthony ‘Red’ 

Raper. In response, Raper began searching for the victim. When McDaniel 

identified the victim, Raper approached him. Raper and the victim exchanged 

punches, none of which made contact. The victim then ran in the opposite 

direction and the crowd on the street, including Raper, chased after him. Raper’s 

cousin, [Petitioner], was at the front of that crowd with Raper. [Petitioner] then 

drew a handgun and pointed it at the victim. He fired one fatal shot to the back of 

the victim’s head. The victim immediately fell to the ground. 

 The State called six witnesses, all of whom testified to being in or near the 

crowd when the shooting occurred. Yolanda Floyd, who lived on the street where 

the crowd was gathered, and Raper testified that they witnessed [Petitioner] shoot 

the victim as the victim ran away from the crowd. 

The State’s other four eyewitnesses claimed for the first time at trial that they had not seen (or 

could not remember having seen) the shooter. Those four witnesses were impeached with their 

earlier police and grand jury statements identifying Petitioner as the shooter. These statements 

were admitted as substantive evidence. 

 Petitioner called three witnesses in his defense: Samuel Harris, Curtis Palmer, and Eric 

Harris. All three testified that they were good friends of Petitioner’s and were with him in the 

crowd at the time that Larry Brown was shot. They testified that Petitioner was within their sight 

at the time the shot was fired and that Petitioner did not have a handgun at that time. According 

to the three witnesses, after the shot was fired, the group, including Petitioner, ran away and 
3

stayed together for approximately an hour. None of Petitioner’s witnesses ever reported what 

they observed to the police. 

 Each of Petitioner’s witnesses was cross-examined by the prosecution. During the crossexamination of Samuel Harris, the prosecutor questioned why, if Harris had observed the 

shooting, had he not informed the police: 

Q. So police cars in that neighborhood all the time? 

A. Yes. 

Q. So they’re arriving? 

A. Yes. 

Q. And at that point, do you decide, well, I’m going to go up there and tell them 

what I saw? 

A. No. 

Q. You don’t – did you care that anybody could have got shot over there? 

A. Yes, I did care, but . . . 

Q. You did care? 

A. Mm-hmm. 

Q. Because you’re a caring person, right? 

A. Yes. 

Q. And you’re such a caring person that if someone got shot, you would want to 

go tell the police what you saw, right? 

DEFENSE COUNSEL: Objection. 

THE COURT: Overruled. 

A. Yeah. 

Q. Okay. But you didn’t? 

A. No, because I was young. 

Q. Even though there’s police officers all over the place, right? 

A. No. I was young. 

Q. You were young? 

A. Mm-hmm. 

Q. So that stops you from talking to a police officer? 

A. What was I gonna tell? 

Q. So you didn’t flag down any police cars, right? 

A. No, because I went home after that happened after we went to the block, I went 

home after that. 

 Later in its cross-examination of Samuel Harris, the prosecutor returned to this theme, 

asking why Harris had not sought to exonerate his friend earlier: 

Q. So a couple of weeks later, you found out that the [Petitioner] had been 

arrested for murder, correct? 

A. Yes. 
4

Q. For what had happened over on Cortland, right? 

A. Yes. 

Q. And you were out there at the time with [Petitioner], and he didn’t shoot 

anybody according to you, right? 

A. Right. 

Q. That’s important information, right? 

A. Yes. 

Q. That’s real important information? 

A. Yes. 

Q. He’s your good friend, right? 

A. Yes. 

Q. So when you found out that your good friend had been arrested for murder that 

you knew he wasn’t involved in, you immediately – well, let me ask you. You 

would tell anybody that would listen that he wasn’t involved, right? 

A. Yes. 

Q. So you immediately went three blocks to the north to the 25th District and told 

the police officer that [Petitioner] wasn’t involved in that murder, you got the 

wrong guy? 

A. No. 

Q. You didn’t do that? 

A. No. 

Q. And did you go to Area Five detective division which was on the second floor 

and demand to speak to a detective and say you got the wrong guy? 

A. No. 

Q. Well, at that point, did you – you eventually knew he had court dates, right? 

A. Yes. 

Q. Did you show up to the courthouse and demand to speak to an Assistant State’s 

Attorney handling the case and say you got the wrong guy, you’re prosecuting the 

wrong guy, did you say that? 

A. No. 

Q. Well, did you go to the newspapers? 

A. No. 

Q. The TV stations? 

A. No. 

Q. Tell them they got the wrong guy? 

A. No. 

Q. Basically this is the first time you’re telling any judge or law enforcement 

officials about what you knew about the murder, correct, that [Petitioner] wasn’t 

involved, correct, first time here today? 

A. Yes. 

 Similarly, the prosecutor cross-examined Eric Harris about his failure to contact the 

police about what he witnessed on the night of the shooting: 

Q. So you’ve got some idea that somebody got shot over there when you see all 

the police officers coming, right? 
5

A. Yes, sir. 

Q. And you kind of saw a good amount of what happened over there, right? 

A. Yes, sir. 

Q. So immediately you go up and talk to the police officers, right? 

A. No, I didn’t go talk to the police officers. 

Q. It wasn’t important to you? 

A. (No response.) 

Q. No? 

A. No. 

Q. You didn’t really care about anybody who got shot out there, right? 

A. It wasn’t none of my people. 

Q. None of your people, right, so you really don’t care about them? 

A. I ain’t saying I don’t care about them. It wasn’t none of my people. 

Q. Who’s your people? 

DEFENSE COUNSEL: Objection. 

A. My friends. 

THE COURT: Overruled. 

Q. So if some random guy gets shot, because he’s not one of your people, you 

really don’t care about him, right? 

A. I didn’t say I don’t care. 

Q. Are you happy they got shot? 

A. No, I’m not. 

Q. Are you sad they got shot? 

A. No, I’m not. 

Q. You just have no feelings whatsoever about it? 

A. No, sir. 

Q. So the boy that got shot over there, you have no feelings for whatsoever? 

A. I never knew him. 

Q. So you never talked to any police officers, and then everybody goes on their 

way that night. 

 Finally, the prosecutor cross-examined Curtis Palmer about Petitioner’s whereabouts at 

the time of the shooting: 

Q. Gunshots just gone off. You’re not looking around for where your friends are, 

right? 

A. We gonna all meet up. 

Q. Okay. You just eventually hope that you all meet up? 

A. Hopefully. 

Q. That nobody got shot? 

A. I got to get out of danger myself. 

Q. You what? 

A. I got to get out of the way of danger myself. 

Q. Right, because you’re really concerned ultimately about yourself, right? 

MR. BENDIG: Objection. 

THE WITNESS: Yes. 
6

THE COURT: Overruled. 

Q. So [Petitioner] is definitely with you, right? 

A. Yes. 

 During the rebuttal closing argument, the prosecutor called into question the credibility of 

Petitioner’s witnesses: 

 Well, let’s talk about the defense witnesses because it’s interesting how 

the defense characterizes those witnesses. It’s interesting because apparently they 

are like three little angels. Oh, they say they work. Oh, they got kids. They got 

jobs. What they don’t have is credibility. And you know why? You heard them up 

there, three different stories. Three different stories. 

 You know, it was Eric Harris that stated, and I think that basically sums up 

all three of those witnesses, he doesn’t care about anybody but his friends. The 

boy that got shot, doesn’t care. Didn’t make him happy. Didn’t make him sad. 

What a wonderful individual he is. What a great guy. What a great witness. 

 And that is why he testified for the [Petitioner] because he didn’t care 

about anybody but the [Petitioner]. That’s why he got up there and did not tell 

you the truth, basically got up there and gave you a cockamamie story about how 

they’re just like spectators at a football game, about a fight that they didn’t know 

anything about. 

* * * 

 Those witnesses were not credible whatsoever despite what counsel was 

saying about them. 

* * * 

 Let’s take them one by one. We have Samuel Harris . . . . So what is 

Samuel Harris watching? He’s not watching anything. 

* * * 

 That takes us to Curtis Palmer. This guy is useless. He didn’t see 

anything. Apparently didn’t see anything. He’s standing there. He’s with Eric, 

Samuel. Now that’s exactly where they’re at, but he says I can’t see anything. It’s 

a crowd. Well, if he’s standing right with them, how come he didn’t see the same 

thing? Because he’s not telling you the truth. 

* * * 

 That takes . . . us to Eric Harris. And once again, everything is summed up 

by this guy. Doesn’t care about anybody but his people, his friends. Guy got shot. 

So what. Doesn’t care. That’s what he’s about. 

* * * 
7

 Credible, the three angels, jobs, kids. Yeah, they may have those. They 

don’t have credibility, not in this courtroom. 

* * * 

 Credible testimony of witnesses came from Anthony Raper, came from 

Yolanda Floyd and came from handwritten statements and Grand Jury testimony 

of Lakesha Gibbs, Shontrice Smith, De[S]ean Henry and Johnny Ceasar. That’s 

where the credible testimony is, not with the defense witnesses who can’t get their 

story straight, and basically can all be summed up by Eric Harris. ‘I only care 

about my people.’ That’s one of his people, a guy who shoots down Larry Brown 

in the head over a squabble with a girl. That’s the type of person he is. 

 During and after closing arguments, the trial court instructed the jury that closing 

arguments are not evidence and should be disregarded to the extent that they are not based on 

evidence. 

 On April 9, 2008, the jury found Petitioner guilty of first degree murder caused by his 

personal discharge of a firearm. On May 7, 2008, the trial court sentenced Petitioner to an 

aggregate of sixty years of imprisonment: thirty-five years imprisonment for first degree murder 

and a twenty-five-year consecutive enhancement for personally discharging a firearm. 

 2. Direct appeal 

 On direct appeal, Petitioner raised the following claims: (1) Petitioner was not proven 

guilty beyond a reasonable doubt of first degree murder; (2) the trial court failed to comply with 

the dictates of Illinois Supreme Court Rule 431(b) requiring jurors to be asked about their 

understanding of the burden of proof and the presumption of innocence; (3) the prosecutor 

improperly attacked the moral character of defense witnesses during cross examination and 

closing argument and trial counsel failed to object to a majority of these remarks; and (4) 

Petitioner’s sentence was excessive. 

 The state appellate court affirmed the judgment of the trial court on November 22, 2010. 

See People v. Brazziel, 939 N.E.2d 989 (Ill. App. Ct. 1st Dist. 2010). The appellate court 

determined that Petitioner had forfeited the vast majority of his arguments with regard to the 
8

prosecutor’s treatment of his witnesses during cross-examination and closing argument by failing 

to lodge a contemporaneous objection to these alleged errors and include them in a post-trial 

motion. Id. at 1006-07. Regardless, the court concluded that none of the prosecutor’s questions 

was erroneous, finding that “[t]he State was not attacking the defense witnesses’ morality or lack 

thereof; rather, the State attempted to undermine the witnesses’ credibility by attacking the fact 

that none of the witnesses reported what occurred on the night in question or attempted to 

provide information to the authorities to exonerate defendant.” Id. at 1006. Further, the court 

reasoned that questions about the witnesses’ concern for the welfare of their own friends (such as 

Petitioner) over that of strangers were relevant to demonstrate the witnesses’ bias. Id. As to the 

closing argument, the court found that it was similarly, and properly, directed at the witnesses’ 

credibility and biases as opposed to their general moral character. Id. at 1007. Although the 

prosecutor’s facetious comments that one of the Petitioner’s witnesses was a “wonderful 

individual” and a “great guy” may have “crossed the line of propriety . . . any error was cured 

when the jury was instructed at the end of trial that closing arguments were not evidence.” Id.

Petitioner’s ensuing petition for leave to appeal (PLA) in the Illinois Supreme Court 

repeated his arguments with regard to his sentence and the prosecutor’s handling of his witnesses 

during cross-examination and closing argument. The Illinois State Supreme Court denied the 

PLA on March 30, 2011. Petitioner did not seek postconviction relief in Illinois state court. 

B. Procedural Background of Federal Habeas Petition 

 Petitioner filed his pro se petition for writ of habeas corpus on June 28, 2012. Construing 

his pro se allegations liberally (see Turley v. Rednour, 729 F.3d 645, 651 (7th Cir. 2013), 

Brazziel’s petition raises two claims: (1) that the prosecutor improperly raised the issue of the 

defense witnesses’ moral character during cross-examination and closing argument, and (2) that 

trial counsel was ineffective for failing to object to many of the allegedly improper remarks. 
9

 Respondent filed his answer on September 7, 2012, and Petitioner’s reply brief was 

originally due on November 9, 2012, giving him approximately two months to respond to 

Respondent’s answer. At Petitioner’s request, the Court granted Petitioner four extensions of 

time to file his reply brief, and gave Petitioner until May 24, 2013 to file a reply brief. Petitioner 

did not file a reply brief, and the Court denied Petitioner’s untimely fifth request for an extension 

of time, having granted four lengthy extensions and warning Petitioner that his fourth extension 

would be his last absent extraordinary circumstances. 

II. Legal Standards 

Under the Antiterrorism and Effective Death Penalty Act of 1996 

(“AEDPA”), habeas relief cannot be granted unless the state court’s decision was contrary to or 

an unreasonable application of federal law clearly established by the Supreme 

Court. See Williams v. Taylor, 529 U.S. 362, 402–03 (2000); Warren v. Baenen, 712 F.3d 1090, 

1096 (7th Cir. 2013). In Williams, the Supreme Court explained that a state court’s decision is 

“contrary to” clearly established Supreme Court law “if the state court arrives at a conclusion 

opposite to that reached by this Court on a question of law” or “if the state court confronts facts 

that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a 

result opposite to ours.” See id. at 405; see also Kamlager v. Pollard, 715 F.3d 1010, 1015 (7th 

Cir. 2013) (“A state court decision is ‘contrary to’ federal law if it applies the wrong legal 

standard established by Supreme Court precedent or decides a case differently than the Supreme 

Court on materially indistinguishable facts.”).

Under the “unreasonable application” prong of the AEDPA standard, a habeas petitioner 

must demonstrate that although the state court identified the correct legal rule, it unreasonably 

applied the controlling law to the facts of the case. See Williams, 529 U.S. at 407; see also

Taylor v. Grounds, 721 F.3d 809, 817 (7th Cir. 2013). “The state court’s application of federal 
10

law must not only be incorrect, but ‘objectively unreasonable.’” Rann v. Atchison, 689 F.3d 832, 

835 (7th Cir. 2012); see also Williams, 529 U.S. at 410 (“unreasonable application of federal law 

is different from an incorrect application of federal law”) (emphasis in original). To be 

considered objectively unreasonable, a state court’s decision must be “well outside the 

boundaries of permissible differences of opinion.” Kamlager, 715 F.3d at 1016 (citation 

omitted). 

 “A state petitioner seeking a writ of habeas corpus in federal court must first exhaust the 

remedies available to him in state court, 28 U.S.C. § 2254(b)(1)(A), ‘thereby giving the State the 

‘opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights.” Cheeks 

v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009) (citations omitted). In particular, a habeas petitioner 

must fully and fairly present his federal claims through one full round of state court review 

before he files his federal habeas petition. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848 

(1999); Mulero v. Thompson, 668 F.3d 529, 536 (7th Cir. 2012). To fairly present a claim in 

state court, the petitioner must include both the operative facts and the controlling legal 

principles on which the claim is based, and also must alert the state court that the claim raised is 

based on federal law. Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001); Sweeney v. 

Carter, 361 F.3d 327, 332 (7th Cir. 2004). “[W]hen a petitioner has exhausted his state court 

remedies and failed to properly assert his federal claims at each level of review those claims are 

procedurally defaulted.” Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009). Procedural 

default precludes federal court review of a petitioner’s habeas claims. See Mulero, 668 F.3d at 

536. 

 A habeas petitioner may overcome procedural default by demonstrating cause for the 

default and actual prejudice or by showing that the Court’s failure to consider the claim would 

result in a fundamental miscarriage of justice. See House v. Bell, 547 U.S. 518, 536 
11

(2006); Coleman v. Thompson, 501 U.S. 722, 750 (1991). The Supreme Court defines cause 

sufficient to excuse procedural default as “some objective factor external to the defense” which 

prevents a petitioner from pursuing his constitutional claim in state court. See Murray v. 

Carrier, 477 U.S. 478, 492 (1986); Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). 

Prejudice means actual prejudice infecting the “entire trial with error of constitutional 

dimensions.” Murray, 477 U.S. at 494 (citation omitted). A fundamental miscarriage of justice 

occurs when a habeas petitioner establishes that “a constitutional violation has probably resulted 

in the conviction of one who is actually innocent.” Id. at 496. 

III. Analysis 

 A. Petitioner’s Ineffective Assistance Claim

 Petitioner contends that trial counsel was ineffective for failing to object to many 

allegedly improper remarks made by the prosecutor during trial. To preserve a claim for federal 

habeas review, a petitioner must raise it “in one complete round of the State’s established 

appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). “In Illinois, this 

means that a petitioner must have [ ] appealed to the Illinois Appellate Court and presented the 

claim in a petition for leave to appeal to the Illinois Supreme Court.” Guest v. McCann, 474 

F.3d 926, 930 (7th Cir. 2007). Petitioner raised his current ineffective assistance argument in his 

direct appeal to the state appellate court, but he subsequently omitted it from his ensuing PLA in 

the Illinois Supreme Court. Because Petitioner did not raise his ineffective assistance allegation 

in one complete round of state court review, Petitioner has procedurally defaulted his ineffective 

assistance of counsel claim. Boerckel, 526 U.S. at 845; White v. Godinez, 192 F.3d 607, 608 (7th 

Cir. 1999) (failure to pursue claim on discretionary appeal to state high court on postconviction 

review constitutes procedural default). 
12

 Petitioner can excuse his default by showing that (1) there is cause and prejudice for the 

default; or (2) the absence of federal habeas review would result in a “fundamental miscarriage 

of justice.” Coleman, 501 U.S. at 750. Petitioner asserts that failing to review his claim would 

result in a “fundamental miscarriage of justice.” To avoid default under this theory, Petitioner 

must present to this Court “‘new reliable evidence—whether it be exculpatory scientific 

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented 

at trial.’” House v. Bell, 547 U.S. 518, 537 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 321 

(1995)). Petitioner then must establish that, in light of that evidence, “it is more likely than not 

that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” House, 

547 U.S. at 536-37 (citing Schlup, 513 U.S. at 327). This standard requires a “stringent 

showing” and “permits review only in the extraordinary case.” House, 547 U.S. at 522. 

 Petitioner has pointed to no “new reliable evidence” that would cast doubt on his guilt. 

And having failed to submit any “new, reliable evidence” in this regard, Petitioner is saddled 

with a record of six eyewitnesses identifying him as the shooter at some point prior to trial. This 

unrebutted evidence is sufficient to deny substantive review under the “fundamental miscarriage 

of justice” exception. See Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (“it is black 

letter law that the testimony of a single eyewitness suffices for conviction even if 20 bishops 

testify that the eyewitness is a liar”); see also United States ex rel. Priester v. Hardy, 2012 WL 

567629, at *3 (N.D. Ill. Feb. 21, 2012) (finding that defaulted claim was not open to review 

under “fundamental miscarriage of justice” exception where petitioner presented “no new 

evidence,” but “merely recited events” of crime “from his own perspective” and generally 

attacked physical proof introduced at trial); United States ex rel. Williams v. Hulick, 2010 WL 

1292450, at *7 (N.D. Ill. Mar. 25, 2010) (rejecting “fundamental miscarriage of justice” 
13

argument where petitioner “introduce[d] no new evidence that the state courts have not already 

considered and rejected”). 

B. Petitioner’s Prosecutorial Error Claim

Petitioner also argues that the prosecutor improperly raised the issue of the defense 

witnesses’ moral character during cross-examination and closing argument. Respondent 

contends that Petitioner partially defaulted on this claim because the state appellate court rejected 

the vast majority of his challenges to the prosecutor’s cross-examination and closing argument 

on state procedural grounds. The independent and adequate state ground doctrine “bar[s] federal 

habeas when a state court declined to address a prisoner’s federal claims because the prisoner 

had failed to meet a state procedural requirement.” Franklin v. Gilmore, 188 F.3d 877, 881 (7th 

Cir. 1999) (internal quotations omitted); see also Coleman, 501 U.S. at 729-30 (“This Court will 

not review a question of federal law decided by a state court if the decision of that court rests on 

a state law ground that is independent of the federal question and adequate to support the 

judgment.”); Lee v. Davis, 328 F.3d 896, 899-900 (7th Cir. 2003) (same). The state appellate 

court held that Petitioner forfeited his challenge to all but two of the prosecutor’s crossexamination questions by failing to make a contemporaneous objection and file a post-trial 

motion, as state law requires. Similarly, the appellate court held that Petitioner forfeited all 

challenges to the prosecutor’s closing argument by failing to object. 

 The appellate court’s denial of these portions of Petitioner’s claim on the ground of 

forfeiture provides an adequate and independent state ground for denying relief. First, the state 

court’s application of the rule was independent of the underlying question. That is, the appellate 

court did not intertwine the underlying issue concerning the prosecutor’s cross-examination and 

closing argument with its enforcement of the well-settled Illinois rule requiring preservation of 

an error at trial by (1) lodging a contemporaneous objection to it; and (2) including it in a post-
14

trial motion. See People v. Enoch, 522 N.E.2d 1124, 1129 (1988). Instead, the state appellate 

court’s procedural resolution of the bulk of Petitioner’s claim rested independently on state law. 

See Holmes v. Hardy, 608 F.3d 963, 967 (7th Cir. 2010) (relevant question is whether “state 

court’s decision rests on the substantive claims primarily, that is, whether there is no procedural 

ruling that is independent * * * [h]ere, the state court’s procedural ruling was primary, and a 

fortiori, independent”) (internal citations omitted and emphasis in original). 

 Second, the rule relied upon by the appellate court is firmly-established and regularlyfollowed in state practice. See Franklin, 188 F.3d at 882. Since at least 1988, state law has 

required that a criminal defendant preserve errors for appeal both by objecting to them at the 

time of their occurrence and including them in a written post-trial motion. Enoch, 522 N.E.2d at 

1129-30; see also People v. Kitch, 942 N.E.2d 1235, 1240 (Ill. 2011) (reaffirming rule); 725 

ILCS 5/116-1 (codifying post-trial motion requirement). Thus, the majority of Petitioner’s 

prosecutorial-error claim is procedurally defaulted “on independent and adequate state 

procedural grounds.” Coleman, 501 U.S. at 730; see also Gomez v. Jaimet, 350 F.3d 673, 677-78 

(7th Cir. 2003) (denying claim on “independent and adequate” state law ground where, under 

Enoch and applicable statutory provision, state court had found issue forfeited for failure to 

include in post-trial motion); Whitehead v. Cowan, 263 F.3d 708, 726-27 (7th Cir. 2001) (same). 

Even where, as here, the state court enforced the forfeiture and then reviewed the claim for plain 

error, the procedural bar still is sufficient to enforce the procedural default. Brooks v. Walls, 279 

F.3d 518, 522 (7th Cir. 2003) (“it is settled (at least in this circuit) that a plain-error exception to 

a procedural rule does not compromise that rule’s quality as an independent ground of 

decision”). 

 Broadly construed, Petitioner’s habeas petition appears to argue that the state-court 

forfeiture (and ensuing procedural default) of his prosecutorial error claim is attributable to his 
15

trial counsel’s failure to make appropriate objections at the right time. A petitioner may assert 

ineffective assistance of counsel as “cause” for a default, but only if the ineffective assistance 

argument is not, itself, defaulted. Edwards v. Carpenter, 529 U.S. 446, 451-53 (2000). Here, as 

previously set forth, Petitioner defaulted his ineffective assistance claim by failing to raise it in 

one complete round of state court review. Therefore, he may not assert that argument as cause to 

remedy the default of his prosecutorial error claim. Additionally, for the reasons stated 

previously with regard to Petitioner’s ineffective-assistance claim, Petitioner has failed to 

demonstrate that the absence of federal habeas review would result in a “fundamental 

miscarriage of justice.” 

 That leaves consideration of the rest of Petitioner’s claim of prosecutorial error on the 

merits. The relevant state-court review of the prosecutor’s cross-examination is in two parts: (1) 

substantive review of the two preserved objections concerning the cross-examination of Samuel 

Harris and Curtis Palmer; and (2) plain error review of the remainder of the complained-of crossexamination, which (as explained above) is defaulted. To determine if a prosecutor’s crossexamination or closing argument violated due process, a court must first consider whether the 

challenged questions or comments were improper. See United States v. Washington, 417 F.3d 

780, 786 (7th Cir. 2005). If so, the court must then determine whether the comments prejudiced 

the defendant. Id. 

 The state appellate court found that the prosecutor’s cross-examination properly explored 

the witnesses’ credibility and potential bias. The court concluded that the prosecutor’s questions 

about whether the witnesses reported to police what they saw at the time of the shooting were 

proper because they reflected on their credibility. See People of the State of Illinois v. Brazziel, 

939 N.E.2d 989, 1006 (Ill. App. 1st Dist. 2010) (noting that “the State attempted to undermine 

the witnesses’ credibility by attacking the fact that none of the witnesses reported what occurred 
16

on the night in question or attempted to provide information to the authorities to exonerate 

[petitioner]”); see also United States v. Hollins, 811 F.2d 384, 390 (7th Cir. 1987) (challenges to 

witnesses’ credibility proper). The witness’s failure to report their observations earlier could 

reasonably lead to the inference that their testimony about those observations—that petitioner 

was not the shooter—was fabricated at trial. See Morales v. Johnson, 659 F.3d 588, 600-01 (7th 

Cir. 2011) (identifying witnesses’ “lack of initial cooperation with authorities” as a “factor 

weighing against their credibility). There are additional inferences that could be drawn from the 

failure to timely report observations, but this line of questioning factors into the witnesses’ 

credibility. 

 Similarly, the prosecutor’s questions about whether the witnesses cared more about 

themselves and their friends—including Petitioner—than about other people—such as the 

victim—reflected on the witnesses’ bias. See People of the State of Illinois v. Brazziel, 939 

N.E.2d at 1006 (“The State further demonstrated the defense witnesses’ bias by establishing that 

Palmer was most concerned about his safety and that of his group and that Eric’s allegiance was 

to his group of friends.”); see also United States v. Meyer, 157 F.3d 1067, 1080 (7th Cir. 1998) 

(challenges to witnesses’ bias proper). Additionally, the witnesses’ close relationship to 

Petitioner supported the inference that they may have slanted or even manufactured their 

testimony in his favor. See United States v. Ozuna, 674 F.3d 677, 682 (7th Cir. 2012) (evidence 

of relationship between defendant and witness relevant to bias). The cross-examination at issue 

highlighted their motives to lie and their failure to report their observations to the police prior to 

trial. The state appellate court’s conclusion that the prosecutor properly explored the witnesses’ 

credibility and potential bias was neither factually nor legally unreasonable. 

 In its plain error review, the state appellate court determined that the prosecutor’s closing 

argument focused on the witnesses’ credibility rather than on their general moral character. See 
17

People of the State of Illinois v. Brazziel, 939 N.E.2d at 1007. The prosecutor introduced his 

discussion of Petitioner’s witnesses by stating “[w]hat they don’t have is credibility,” and tied his 

comments to the theme of credibility throughout. However, the prosecutor made several 

sarcastic or facetious remarks about the witnesses’ moral character. For example, he referred to 

Eric Harris as a “great guy” and a “wonderful individual” and referred to all three of the 

witnesses as “angels.” 

 Even assuming that these remarks were improper, the state appellate court found that 

“any minor error was not so serious as to affect the integrity of defendant’s trial.” Id. at 1008. In 

analyzing whether there was prejudice from improper prosecutorial questions or comments, 

courts look at (1) whether the prosecutor misstated the evidence; (2) whether the remark 

implicated a specific right; (3) whether the defendant invited the remark; (4) whether the district 

court provided a curative instruction; (5) whether the defendant had an opportunity to rebut the 

remark; and (6) the weight of the evidence against the defendant. United States v. Nunez, 532 

F.3d 645, 655 (7th Cir. 2008). Here, the prosecutor merely commented on, and did not misstate, 

the witnesses’ testimony, and no specific right was implicated. Petitioner had an opportunity to 

respond to the prosecutor’s cross-examination questions in his redirect examination of his 

witnesses and in his own closing argument, and indeed attempted to do so. The jury was 

instructed that closing arguments, including the prosecutor’s remarks that Eric Harris was a 

“great guy” and a “wonderful individual,” are not evidence. And most importantly, as the 

Illinois Appellate Court concluded, “the evidence was not closely balanced.” People of the State 

of Illinois v. Brazziel, 939 N.E.2d at 1008. In light of the six witnesses who identified Petitioner 

as the person that shot Larry Brown, it was not unreasonable for the appellate court to conclude 

that the prosecutor’s brief comments regarding Petitioner’s witnesses did not prejudice Petitioner 
18

such that the outcome of his trial might have been different. See Washington, 417 F.3d at 787 

(complaints about prosecution’s allegedly improper arguments “founder[] in the face of strong 

evidence of * * * guilt”). 

IV. Certificate of Appealability 

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

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

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

Petitioner Brazziel a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2). 

A habeas petitioner does not have the absolute right to appeal a district court’s denial of 

his habeas petition; instead, he must first request a certificate of appealability. See Miller–El v. 

Cockrell, 537 U.S. 322, 335 (2003); Sandoval v. United States, 574 F.3d 847, 852 (7th Cir. 

2009). A habeas petitioner is entitled to a certificate of appealability only if he can make a 

substantial showing of the denial of a constitutional right. Miller–El, 537 U.S. at 336; Evans v. 

Circuit Court of Cook County, Ill., 569 F.3d 665, 667 (7th Cir. 2009). Under this standard, 

Petitioner must demonstrate that “reasonable jurists could debate whether (or, for that matter, 

agree that) the petition should have been resolved in a different manner or that the issues 

presented were adequate to deserve encouragement to proceed further.” Miller–El, 537 U.S. at 

336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). And in cases where a district court 

denies a habeas claim on procedural grounds, the habeas court should issue a certificate of 

appealability only if the petitioner shows that (1) jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a constitutional right, and (2) jurists of 

reason would find it debatable whether the district court was correct in its procedural ruling. See 

Slack, 529 U.S. at 485. 
19

Consistent with the detailed discussion above, the Court concludes that Petitioner has not 

made a substantial showing of the denial of a constitutional right, nor would reasonable jurists 

differ on the Court’s assessment of Petitioner’s claims. Thus, the Court declines to certify any 

issues for appeal pursuant to 28 U.S.C. § 2253(c)(2). 

V. Conclusion

 For the reasons stated above, the Court respectfully denies Petitioner Brazziel’s petition 

for a writ of habeas corpus [7 and 9], declines to certify any issue for appeal, and directs the 

Clerk to enter judgment in favor of Respondent. 

 

Dated: January 28, 2014 __________________________________ 

 Robert M. Dow, Jr. 

 United States District Judge