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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

 

LORENZO ELLISON, ) 

 ) 

 Petitioner, ) 

 ) Case No. 02 C 8546 

v. ) 

 ) Judge Joan B. Gottschall 

JONATHAN R. WALLS, ) 

 ) 

 Respondent. ) 

MEMORANDUM OPINION AND ORDER

 Petitioner Lorenzo Ellison (“Ellison”) has filed a petition for habeas corpus relief, 

alleging that : (1) he was denied effective assistance of counsel in violation of the Sixth 

and Fourteenth Amendments to the U.S. Constitution; (2) the state did not meet its 

burden of proving his guilt beyond a reasonable doubt because the state did not prove his 

intent to cause death or serious bodily harm to the victim; (3) the trial court abused its 

discretion when it allowed autopsy photographs to be shown to the jury; (4) the trial 

judge failed to change venue sua sponte in response to the publicity surrounding the case; 

(5) the trial court abused its discretion by allowing certain allegedly inflammatory 

statements made by the prosecution in its closing argument, despite objections by the 

defense; and (6) the trial court abused its discretion by considering his claim of innocence 

to be an aggravating factor in sentencing. For the reasons set forth below, Ellison’s 

petition for habeas corpus relief is denied. 
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I. BACKGROUND

 Ellison was convicted, following a jury trial, of the first degree murder of Quincy 

King (“King”), a four month old infant. At trial, the state argued that King’s death was 

the result of “shaken baby syndrome” and that it was Ellison who shook the baby to 

death. Ellison argued that he was in fact playing with the child too roughly, and that this 

caused the infant’s death. The jury rejected Ellison’s explanation, and he was sentenced 

to 60 years imprisonment. 

 Ellison appealed his conviction and sentence to the Illinois Appellate Court, 

arguing that: (1) his trial counsel was ineffective for failing to obtain an expert witness to 

testify on whether King’s death was actually the result of shaken baby syndrome; (2) the 

state did not prove beyond a reasonable doubt that he had the requisite mental state to 

commit murder; and (3) the trial court abused its discretion when it considered his 

protestations of innocence as an aggravating factor in sentencing. The Illinois Appellate 

Court, Second Judicial District, affirmed Ellison’s conviction and sentence. People v. 

Ellison, No. 2-93-1089 (Ill. App. Ct. 1995). 

 Ellison then filed a pro se post-conviction petition, alleging: (1) that the trial court 

abused its discretion by allowing autopsy photographs of King to be submitted to the 

jury; (2) that his counsel was ineffective for: (a) not filing a motion to transfer venue 

when the trial judge indicated that he had heard about the case and when the jurors would 

likely have heard of the case because of its publicity; (b) failing to move to suppress 

Ellison’s statements to the police; and (c) failing to object to certain remarks made by a 

defense expert; (3) that the trial judge abused his discretion by allowing the prosecutors 

to make certain remarks to the jury in closing arguments; (4) that his appellate defense 
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counsel was ineffective for not raising the foregoing issues on appeal; and (5) that the 

Illinois Department of Corrections denied him access to the courts; and (6) reasserting the 

issues raised in his original appeal. The court dismissed all of these claims. People v. 

Ellison, 92 CF 2930. 

 Ellison then appealed this decision. His state-appointed counsel for the appeal 

was allowed to withdraw, despite Ellison’s motion opposing his withdrawal. The 

Appellate Court then affirmed the denial of Ellison’s post-conviction petition. People v. 

Ellison, No. 2-01-0019 (Ill. App. Ct. 2001). Ellison then filed a petition for leave to 

appeal this decision to the Illinois Supreme Court; that petition was likewise denied. 

People v. Ellison, No. 93113 (Ill. 2002). Ellison then filed the instant motion for habeas 

corpus relief. 

II. ANALYSIS

 In his petition for habeas corpus relief, Ellison argues that: (1) he was denied 

effective assistance of counsel in violation of the Sixth and Fourteenth Amendments of 

the U.S. Constitution because: (a) his counsel did not retain an expert on shaken baby 

syndrome; (b) his counsel did not file a motion to change venue upon discovering that the 

trial judge had heard about the case and that the jurors would likely have heard of the 

case from the media; and (c) his counsel failed to move to suppress Ellison’s statements 

to the police; (2) the state did not meet its burden of proving his guilt beyond a 

reasonable doubt because the state did not prove his intent to cause death or serious 

bodily harm to King; (3) the trial court abused its discretion when it allowed autopsy 

photographs to be shown to the jury; (4) the trial judge failed to change venue sua sponte

in response to the publicity surrounding the case; (5) the trial court abused its discretion 
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by allowing certain allegedly inflammatory statements made by the prosecution in its 

closing argument, despite objections by the defense; and (6) the trial court abused its 

discretion by considering his claim of innocence to be an aggravating factor in 

sentencing. The court now considers each of these arguments in turn. 

A. Standard of Review 

When deciding the habeas corpus petition of an individual in state custody, the 

court relies upon the standard of review mandated by the Antiterrorism and Effective 

Death Penalty Act (“AEDPA”) for all habeas petitions not decided before April 24, 1996. 

Holman v. Gilmore, 126 F.3d 876, 879-80 (7th Cir. 1997). The U.S. Supreme Court has 

interpreted AEDPA to give courts two possible grounds for granting habeas corpus relief. 

Bell v. Cone, 535 U.S. 685, 694 (2002). First, “ a Federal habeas court may issue a writ 

under the ‘contrary to’ clause [of AEDPA] if the state court applies a rule different from 

the governing law set forth in [the Supreme Court’s] cases, or if it decides a case 

differently than [the Supreme Court did] on a set of materially indistinguishable facts.” 

Id. Second, a “court may grant relief under the ‘unreasonable application’ clause [of 

AEDPA] if the state correctly identifies the governing legal principle from [the Supreme 

Court’s] decisions but unreasonably applies it to the facts of a particular case.” Id. With 

respect to the definition of “unreasonable,” an application is not unreasonable if it is 

merely wrong; the application must be “objectively unreasonable.” Id. The Seventh 

Circuit has expanded upon this definition and has determined that an application is 

objectively unreasonable when “decisions [are] at such tension with governing U.S. 

Supreme Court precedents, or so inadequately supported by the record, or so arbitrary, 

that a writ must issue,” Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997). 
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When applying these two tests to the facts of a particular case, the court still 

reviews both state court legal determinations and mixed questions of law and fact de 

novo. Id. at 748. The court, however, must show a “high measure of deference” to the 

state courts’ findings of fact. Sumner v. Mata, 455 U.S. 591, 598 (1982). 

B. Ineffective Counsel 

Ellison argues that he was denied effective assistance of counsel in violation of 

the Sixth and Fourteenth Amendments because: (a) his counsel did not retain an expert on 

shaken baby syndrome; (b) his counsel did not file a motion to change venue upon 

discovering that the trial judge had heard about the case and that the jurors would likely 

have heard of the case from the media; and (c) his counsel failed to move to suppress 

Ellison’s statements to the police. 

In evaluating the merit of Ellison’s claim of ineffective counsel, the court looks 

for guidance to Strickland v. Washington, 466 U.S. 668 (1984). See Hall, 106 F.3d at 

749. To obtain relief for ineffective counsel under Strickland, a petitioner must 

demonstrate: (1) that his counsel’s performance was deficient, which requires “showing 

that counsel made errors so serious that counsel was not functioning as the ‘counsel’ 

guaranteed the defendant by the Sixth Amendment;” and (2) that “the deficient 

performance prejudiced the defense.” Strickland, 466 U.S. at 687. In a habeas petition 

claiming ineffective counsel, a petitioner must also demonstrate that the state courts that 

rejected his ineffective counsel claim “applied Strickland to the facts of [the] case in an 

objectively unreasonable manner.” Bell, 535 U.S. at 699. Ellison fails to meet the 

requisite burden. 
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Ellison’s first argument alleging ineffective counsel is based upon his counsel’s 

failure to retain an expert to contradict the prosecution’s experts who opined that King 

died of a result of shaken baby syndrome. While failure by counsel to retain an expert 

may be grounds for overturning a conviction under Strickland, Ellison fails to show that 

the Illinois courts in this case misapplied Strickland to such an extent that the court 

should grant habeas relief. The Illinois courts’ findings, to which this court must defer, 

found the following facts. First, the Illinois Appellate Court concluded from the record 

that Ellison’s “attorneys recognized the importance of experts’ testimony yet nonetheless 

did not obtain experts to testify on defendant’s behalf.” People v. Ellison, No. 2-93-

1089, 6. Taken alone, this statement might justify overturning Ellison’s conviction. 

However, the appellate court also found that it is very possible that “counsel simply tried 

but failed to find an expert who would testify that Quincy King did not die from shaken 

infant syndrome.” Id. The appellate court also pointed out that “nothing in the ...record 

indicate[s] that the defendant could have produced a favorable witness.” Id. at 8. 

In his post-conviction appeal, Ellison attempted to refute this finding by 

producing a doctor who averred that he examined the autopsy photographs, yet could not 

tell how long the shaking had taken place or how much force was used against the victim, 

although he was certain that “great force was applied.” (Aff. of Steven Lazoritz, M.D.). 

As the state court pointed out, however, that statement does not contradict the 

prosecution experts’ claim that the child was shaken to death. People v. Ellison, 92 CF 

2930, 6-7. In addition, the court pointed out that Ellison produced no affidavit which said 

that there was an expert who was willing to testify that King did not die as a result of 

“shaken baby syndrome,” and therefore he did not meet his burden of showing that his 
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counsel was ineffective for failing to obtain such an expert. Id. at 8-9. Ellison has still 

not introduced any evidence to show that an expert was available who would contradict 

the prosecution experts’ testimony. Therefore, deferring to the state courts’ finding of 

fact that Ellison has not shown that it was even possible for his counsel to contain such an 

expert, this court cannot determine that Ellison’s counsel was ineffective within the 

meaning of Strickland for failure to obtain an expert. 

 Ellison also argues that his counsel was ineffective for failing to move to change 

venue after he learned that the trial judge had heard about the case on the radio. For 

Ellison to prove that this omission deprived him of his Sixth Amendment right to 

effective counsel (assuming that the omission was an error), he must, under Strickland, 

show not only that “the error[] had some conceivable effect on the outcome of the 

proceeding” but also “that counsel’s deficient conduct more likely than not altered the 

outcome of the case.” 466 U.S. at 693. 

In denying Ellison’s post-conviction petition, the Circuit Court of Lake County 

noted both that nothing in the record indicated that a change of venue motion would have 

been granted and that nothing in the record indicated that the trial judge was in any way 

affected by the mention of the case on the radio. People v. Ellison, 92 CF 2930, 2-4, 9. 

Ellison presents no evidence that these two findings are incorrect. Additionally, this 

omission may have been a strategic move by Ellison’s counsel in the first place, and this 

court is required to “strongly presum[e]” that the decision of Ellison’s counsel was “made 

... [with] the exercise of reasonable professional judgment.” See Strickland, 466 U.S. at 

690. Since Ellison offers no evidence that this decision was unreasonable within the 

meaning of Strickland, and because the court has no reason to presume that this was not a 
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reasonable strategic move, the court concludes that Ellison has not met his burden to 

show that this omission was unreasonable or prejudicial within the meaning of 

Strickland, much less that the state courts’ judgment upon this matter was “objectively 

unreasonable” under AEDPA. 

Ellison’s final argument alleging ineffective assistance of counsel is that his 

attorney erred in failing to move to suppress his statements to the police. The Circuit 

Court of Lake Country, in denying Ellison’s petition for post-conviction relief on this 

ground, found that Ellison failed to show that his counsel’s decision not to move to 

suppress the statements was unreasonable and observed that such a motion would 

probably have been denied anyway. People v. Ellison, 92 CF 2930, 8. Ellison cites no 

case in any of his briefs to support the notion that such a motion would have succeeded 

and, in this court’s independent judgment, such a motion would have likely failed. The 

record shows that Ellison was informed of his rights before giving each of the statements 

and prior to signing the prepared statement. Trial Tr., 447-49, 865-66, 878. The record 

also shows that the issue of the credibility of the statements was extensively explored at 

trial. This court cannot, therefore, decide that the state court’s decision on this issue was 

unreasonable under AEDPA. Even if Ellison’s attorney’s failure to move to suppress the 

statements was unreasonable error (as it may or may not have been), the failure to move 

was not prejudicial under Strickland, since such a motion would have likely failed. 

C. The State’s Burden to Prove Guilt Beyond a Reasonable Doubt 

Ellison next argues that the state failed to prove his guilt beyond a reasonable 

doubt because it did not prove that he intended to kill or cause serious bodily harm to 

King. The State argues in its brief that this argument is procedurally defaulted since it 
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was not raised in state court. The State is incorrect in making such a claim; this issue was 

raised in Ellison’s original appeal. Appellant’s Br. and Argument, 21-25. The court 

therefore turns to the merits of Ellison’s claim. 

For Ellison to prevail on this claim, he must demonstrate that the Illinois 

Appellate Court was unreasonable when it decided that a rational trier of fact, viewing 

the evidence in the light most favorable to the prosecution, “could have found the 

essential elements of [this] crime beyond a reasonable doubt.” Jackson, v. Virginia, 443 

U.S. 307, 319 (1979). The court must therefore examine the appellate court’s reasoning 

underlying this decision. 

The appellate court provided several different chains of inference that could lead a 

rational trier of fact to the conclusion, beyond a reasonable doubt, that Ellison intended to 

inflict severe bodily harm to King. First, the court found that the evidence showed that 

the injuries were a result of very severe force and that the doctor who treated King at the 

hospital “testified that the injuries were inconsistent with defendant’s explanation.” 

People v. Ellison, 92 CF 2930, 8. Prosecution experts, as has been discussed above, also 

argued that King’s death could only have been due to shaking. A rational jury, therefore, 

could have found beyond a reasonable doubt that King was shaken to death by Ellison 

and that Ellison lied to the doctor because he know that shaking could have caused 

serious bodily harm or death. Id. at 12. The same could be said with regard to Ellison’s 

statements to the police, in which he denied shaking the baby. Furthermore, Ellison had 

been warned about handling the child too roughly; Ellison said that he knew the baby was 

fragile, and Ellison “had considerable experience handling small children.” Id. at 10-11. 

All of these facts could lead a rational trier of fact to conclude that Ellison knew that he 
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could seriously injure the baby. Furthermore, there was testimony at trial that Ellison 

repeatedly yelled at the baby to “shut up” while it was crying, and Ellison eventually told 

the police that he shook the baby to stop him from crying. Id. at 11. All of these facts, 

taken together, could permit a jury to infer that Ellison knew the potentially serious 

consequences of his actions. Ellison fails to enlist any Supreme Court case to contradict 

the reasonableness of the appellate court’s decision. This court, therefore, cannot hold 

that the Illinois court’s application of law in this case was unreasonable within the 

context of AEDPA. 

D. The Autopsy Photographs 

Ellison argues that he was deprived of his Sixth and Fourteenth Amendment 

rights when the trial judge allowed the jury to see autopsy photographs of King’s body. 

Although the admission of such photographs would be questionable under the Federal 

Rules of Evidence as posing a threat of unfair prejudice, under Illinois law the 

admissibility of such photographs is within the trial court’s discretion. Fed R. Evid. 403; 

People v. Terrell, 185 Ill. 2d 467, 495 (Ill. 1998). Regardless of whether the photographs 

ought to have been admitted, Ellison’s argument, which he classifies as constitutional, is 

actually not constitutional at all, but is rather an argument addressing the admissibility of 

the photographs under Illinois law. Ellison cites no federal case law in support of his 

argument, but rather cites precedent under Illinois evidence law. Ellison’s only possible 

constitutional argument regarding the admission of the photographs would be that their 

admission made his trial fundamentally unfair. See, e.g., Sheppard v. Maxwell, 384 U.S. 

333, 335 (1966). However, although admission of the photographs would be 

questionable under both state and federal law, their admission can hardly be said to have 
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created a constitutionally unfair trial. Since this court may issue a writ of habeas corpus 

only in response to a constitutional violation, it has no reason to decide whether the 

photographs in question should have been admitted: that is a question of Illinois law that 

has been decided in this case by the Illinois courts. 

E. Change of Venue 

Ellison argues that the trial judge had a duty to sua sponte change venue due to 

his own awareness of the case as well as possible tainting of the jury, both a result of 

coverage by the local news media. The state argues that Ellison failed to raise this issue 

in the state court system and thereby procedurally defaulted on the argument. Once 

again, the state errs in making this claim; Ellison did, in fact, raise this issue in his postconviction relief petition (Pet. for Post-Conviction Relief, 17-18). The court therefore 

next considers the merits of Ellison’s argument. 

In support of his contention that the trial judge was constitutionally required to 

change venue (or at least continue the case until the publicity had diminished), Ellison 

again cites Sheppard, which held that a trial can be constitutionally unfair as a result of 

the surrounding publicity. 384 U.S. at 335. For this court to find that the Illinois courts 

unreasonably decided this issue under AEDPA, it must find that “the state court applie[d] 

a rule different from the governing law set forth in [the Supreme Court’s] cases, or it 

decide[d] a case differently than [the Supreme Court] [did] on a set of materially 

indistinguishable facts.” Bell, 535 U.S. at 694. However, the state courts failed to 

address Ellison’s Sheppard argument. Therefore, this court must adjudicate this claim on 

the pre-AEDPA standard, under which the court adjudicates questions of law and mixed 

questions of fact and law de novo, without engaging in additional scrutiny. Dye v. Frank, 
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355 F.3d 1102, 1107 (7th Cir. 2004) (citing Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 

2004) (holding that AEDPA only applies where the state court adjudicated the 

constitutional issue on the merits)). 

The applicable precedent for Ellison’s claim, as he points out, is Sheppard. The 

adverse publicity in Sheppard, however, was much more extreme than the publicity in the 

instant case. In Sheppard, the negative publicity began on the day of the victim’s funeral 

when a local newspaper quoted a prosecutor criticizing Sheppard, the defendant. 384 

U.S. at 338. An extensive series of articles and editorials followed, many of which stated 

quite explicitly that Sheppard was guilty. Id. at 338-342. The coroner’s inquest was 

broadcast on television and radio and, at the inquest, the coroner forcibly removed 

Sheppard’s counsel to the cheers of the spectators, after which the coroner was hugged 

and kissed by a number of women in the audience. Id. at 340. The names of the 

individuals in the jury pool were released to the public, and so the potential jurors 

received letters and phone calls concerning the case. Id. at 342. At the trial itself, the 

media interfered with the effective functioning of the trial. Id. at 343-34. Eleven of the 

eventual jurors admitted in voir dire to having read about the case in the newspaper. Id.

at 345. The jurors posed for photographs for the newspapers. Id. There were many other 

abuses listed by the Court, but these examples should suffice to give an idea of how 

extreme the behavior that led to the overturning of the Sheppard conviction was. There is 

nothing in the evidence in the instant case to suggest to the court that anything 

approaching the abuses described in Sheppard occurred in Ellison’s case. The only 

evidence of media coverage offered by Ellison to any of the courts hearing his case is the 

trial judge’s statement that he heard something about the case on the radio. Specifically, 
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the trial judge stated that he heard on the radio that a baby murder case was going to be 

continued. Trial Tr., 5-6. That, in itself, fails to demonstrate that “prejudicial news” 

existed in this case, much less that there was a “reasonable likelihood that [that] 

prejudicial news prior to trial [would] prevent a fair trial.” Sheppard, 384 U.S. at 363. 

Ellison consequently fails to meet his burden of showing that the trial judge should, sua 

sponte, have moved for a change of venue. 

F. Inflammatory Remarks 

Ellison argues that the trial judge abused his discretion when he allowed the 

prosecutor to make certain remarks in his closing arguments, and that the allowance of 

those statements denied his right to a fair trial. Specifically, Ellison objects to: (1) the 

prosecutor calling him a liar, (Pet. for Post-Conviction Relief, 25); (2) the prosecutor’s 

statement that if someone else had committed the murder, they would be on trial instead 

of Ellison, Id. at 26 (objection sustained); (3) the prosecutor telling the jury that the only 

reason that Ellison stopped shaking the baby was that his arms hurt, Id. at 27; and (4) the 

prosecutor’s descriptions of how the child appeared prior to the incident compared to 

how it appeared upon arrival at the hospital. Id. at 28. 

“In evaluating a claim of prosecutorial misconduct as a violation of the 

petitioner’s due process right to a fair trial, the inquiry is whether the prosecutor’s ... 

statements ‘so infected the trial with unfairness as to make the resulting conviction a 

denial of due process.’” Shepard v. Lane, 818 F.2d 615, 621 (7th Cir. 1987) (quoting 

Darden v. Wainwright, 477 U.S. 168, 180-81 (1986)). The Illinois Appellate Court 

apparently concluded that the prosecutor’s remarks were not improper, although it does 

not state the reasons why not. People v. Ellison, No. 2-01-0019, 3. On the other hand, 
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Ellison fails to provide specific reasons or cite to any precedent as to why these remarks 

were so improper (and the Illinois courts’ rulings on them so unreasonable) as to deny 

him due process. Ellison has therefore failed to demonstrate that either the Illinois courts 

applied the wrong law or made “decisions ... at such tension with governing U.S. 

Supreme Court precedents, or so inadequately supported by the record, or so arbitrary, 

that a writ must issue.” Hall, 106 F.3d at 749. 

G. Claims of Innocence as an Aggravating Factor

Ellison’s final claim is that the trial court abused its discretion in sentencing by 

considering his protestations of innocence as an aggravating factor. However, abuse of 

discretion in sentencing is not a constitutional claim, but is rather a matter of state law. 

Hence it is not grounds for habeas corpus relief. United States ex rel. Davilla v. Clark, 

159 F. Supp. 2d 1081, 1084 (N.D. Ill. 2001). Moreover, even if there was a constitutional 

issue with this sentence, the appellate court concluded that the trial court reasonably 

considered Ellison’s protestations of innocence post-conviction as an indication that he 

was a poor prospect for rehabilitation. People v. Ellison, No. 2-01-0019, 15. The court 

can see no reason, and Ellison gives it none, to find that the trial judge’s decision to 

interpret Ellison’s protestations of innocence post-conviction as an indication that he was 

a poor prospect for rehabilitation was unreasonable or unconstitutional. 
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III. CONCLUSION

 For the reasons set forth above, Ellison’s petition for habeas corpus relief is 

denied. 

ENTER: 

 __/s/_____ __ 

 JOAN B. GOTTSCHALL 

 United States District Judge 

DATED: June 13, 2008