This court, however, recognizes that petitioner also asserts under claim (3) that the State
failed to produce evidence at trial that demonstrated his guilt beyond a reasonable doubt. This
claim, therefore, goes directly to the Illinois Appellate Court’s reasoning that there also was no
harmless error because the evidence adduced at trial proved petitioner’s guilt beyond a
reasonable doubt. Thus, the court will consider petitioner’s dispute with respect to this portion of
the Illinois Appellate Court’s reasoning under claim (3). Otherwise, for the reasons set forth
above, the court denies claim (1) on the merits.

B. Claim (2): ineffective assistance of trial counsel

Petitioner argues that he was denied effective assistance of trial counsel where (1) trial
counsel failed to move to prohibit the gunshot residue (“GSR”) testimony or failed to object to
said testimony, (2) trial counsel failed to prepare a plausible line of defense and investigate and
introduce all evidence and information to the court and failed to advocate vigorously on behalf of
petitioner on his pretrial motion to suppress, and (3) trial counsel failed to interview and call two
witnesses who observed the crime as “occurrence witnesses” and would testify as to the persons
in the perpetrator’s vehicle. (Pet. at 7.) Respondent asserts that petitioner’s claims should be
denied based on the Illinois Appellate Court’s reasoning on direct review and the circuit court’s
reasoning on post-conviction review.

To prevail on a claim for ineffective assistance of (trial) counsel, petitioner must meet the
stringent two-pronged test enunciated by the Supreme Court in Strickland v. Washington,

466 U.S, 668 (1984). See Bell v. Cone, 535 U.S. 685, 697-99 (2002) (determining that counsel’s
performance met the Strickland standard). Under the Strickland standard, petitioner must show:

“(1) that counsel’s performance was deficient; and (2) that the deficient performance prejudiced

19



commented during closing argument that the defense counsel produced no evidence to contradict
the State’s evidence that the victim died due to gunshot wounds. (Resp. Ex. B at 19.)

In his habeas petition and reply brief, petitioner raises several challenges to the Illinois
Appellate Court’s reasoning, namely, that the prosecutor directly attacked his failure to testify
during rebuttal argument, that the prosecutor indirectly attacked his failure to testify, and that the
Illinois Appellate Court’s reliance on Gant was “misplaced” because Gant is factually
distinguishable from his case.* With respect to the prosecutor’s direct comments on petitioner’s
failure to testify, the United States Supreme Court has enunciated that “the Fifth Amendment, . . .
in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by
the prosecution on the accused’s silence or instructions by the court that such silence is evidence
of guilt.” Griffin v. State of California, 380 U.S. 609, 615 (1965); see Yancey v. Gilmore, 113
F.3d 104, 106 (7" Cir. 1997). Here, petitioner relies on Berryman v. Colbert, 538 F.2d 1247,
1249, 1251 (6" Cir. 1976), where the court granted the writ of habeas corpus because, inter alia,
the prosecutor stated, “Nobody was there when the robbery took place. Nobody that we can
bring here to testify. The defendants [are] here, yes, but we can’t get them to testify” during

closing argument.

“In Gant, the defendant shot the victim, an elderly woman. 202 IL App. 3d at 221-22, 559 N.E.2d at 925-
26, The victim subsequently underwent surgery to remove some but not all of the bullets and also suffered from a
broken leg due to the gunshots. The hospital released the victim, but she returned two or three weeks later and died
there. A forensic pathologist performed an autopsy on the victim and concluded that the victim died as a result of a
pulmonary embolism. Specifically, the forensic pathologist determined that the victim’s immobility, due to the
gunshot wounds, caused stagnant blood to form blood clots in her legs and the clots dislodged and eventually entered
her pulmonary arteries, causing her death.

During this whole time, however, the victim also was taking medication for hypertension. During closing
argument, the prosecutor speculated that the defense counsel may offer this fact to rebut the State’s evidence that the
defendant caused the victim’s death. The prosecutor reminded the jury that only the forensic pathologist testified as
to the victim’s cause of death.

13



3. Trial counsel's failure to interview and call potential witnesses

Petitioner argues that trial counsel failed in his duty “to at least contact the potential
witnesses named in the police reports[,]” citing Goodwin v. Balkcom, 684 F.2d 794, 810-12, 817-
18 (11" Cir. 1982) (granting the writ of habeas corpus based on ineffective assistance of counsel
claim where, inter alia, counsel failed to interview crucial witnesses), and Thomas v. Wyrick,
535 F.2d 407, 413-16 (8" Cir. 1976) (granting the writ of habeas corpus where, inter alia,
counsel failed to investigate and interview witnesses and the petitioner produced an affidavit
from a potential witness who recanted his confession that the petitioner participated in the
crime). (Pl. Reply.) Specifically, petitioner argues that trial counsel was ineffective for failing to
call two occurrence witnesses, who would have testified as to the persons they saw in the
perpetrator’s vehicle.

On review, the post-conviction court held that petitioner failed to demonstrate ineffective
assistance of trial counsel because petitioner did not produce affidavits from the witnesses,
attesting what would be their testimony, and failed to explain the significance of their testimony,
citing People v. Johnson, 183 Ul. 2d 176, 192, 700 N.E.2d 996, 1004 (1998), and People v.
Dean, 226 Ill. App. 3d 465, 468-69, 589 N.E.2d 888, 890 (1 Dist. 1992). (Resp. Ex. F at 8-9.)
On habeas review, petitioner’s claim suffers the same consequence. See Wright v. Gramley,

125 F.3d 1038, 1044 (7" Cir. 1997) (“In the case of an uncalled witness, we have held that at the
very least the petitioner must submit an affidavit from the uncalled witness stating the testimony
he or she would have given had they been called at trial[,]” citing United States v. Kamel,

965 F.2d 484, 491 (7" Cir. 1992)). Thus, this claim fails.

23


they exited, petitioner said he heard gunshots. When petitioner exited his car, he saw McKinzie
holding a weapon. The victim was shot, crawling into the gangway. He and McKinzie followed
the victim into the gangway. Then McKinzie gave petitioner the gun and told him to shoot the
victim in the head. McKinzie took the gun back and said, “Let’s finish this Motherf***ker off”
Petitioner said McKinzie began choking the victim, and petitioner kicked the victim in the head
two or three times. Petitioner said that he and McKinzie then returned to petitioner’s car, drove a
short distance, and McKinzie exited. Petitioner drove to 90" Street and Baltimore, where he
parked the car, exited, and walked. He was soon picked up by the police.

According to Detective Karl, Assistant State’s Attorney Cory Pollack (“ASA Pollack”)
re-administered petitioner’s Miranda rights, and petitioner repeated his statement to ASA
Pollack. Petitioner declined to reduce his statement to writing or have it transcribed by a court
reporter.

Officer Willie Harris (“Harris”), an expert in fingerprint comparison, testified that a
fingerprint lifted from the right front door of petitioner’s car belonged to McKinzie,

Scott Rochowicz (“Rochowicz”), an expert in gunshot residue (GSR) analysis, testified
that he tested the GSR swabs taken from petitioner and McKinzie after they were arrested.
Rochowicz testified that the GSR test performed on petitioner was inconclusive. There were
“elevated” amounts of barium, antimony, and lead on petitioner’s hand, but he could not say that
petitioner handled a weapon. The back of petitioner’s right hand tested positive for antimony
and lead, but was “0.96" micrograms short of the requisite level of barium for a positive GSR test

result. Rochowicz also testified that McKinzie’s swabs were negative for GSR.


the defense.” Kubat v. Thieret, 867 F.2d 351, 359 (7" Cir. 1989); see also Williams, 529 U.S. at
390-91. With respect to the first prong, this court “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable assistance.” Strickland, 466 U.S. at
689. As for the second prong, the petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Jd, at 694. If the court finds that the petitioner fails to meet one prong, it need not
consider the other. See Brumley v. DeTella, 83 F.3d 856, 861 (7" Cir. 1996) (“a habeas court
may focus on either prong of this test, as the efficient dispatch of judicial business dictates”).
1. Trial counsel's handling of the GSR testimony

On direct appeal, the Illinois Appellate Court determined that trial counsel was not
ineffective for failing to file a motion in limine to bar the GSR testimony or for failing to object
to this testimony during trial. Specifically, the appellate court recognized that the decision to file
or not to file a motion in limine is a matter of trial strategy and generally will not support an
ineffective assistance of trial counsel claim, citing People v. Orange, 168 Ill. 2d 138, 153,
659 N.E.2d 935, 942 (1995) (“A decision which involves a matter of trial strategy will generally
not support a claim of ineffective representation.”). (Resp. Ex. B at 16.) Moreover, the appellate
court determined that trial counsel had no basis to object to the GSR testimony at trial because
the expert testified that the evidence was inconclusive. (/d.) The appellate court recognized that
defense counsel used the GSR test results on cross examination and in closing argument to argue

that the State had no evidence that petitioner touched the gun. (/d.) For these reasons, the

20



ORDER
For the reasons stated above, the court concludes that petitioner is not entitled to relief.

This case is terminated.

Enter: Wa “4 tA ottrrn—

(/JOAN HUMPHREY LEFKOW
Date: January 5, 2004 United States District Judge

26


reasonable professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial strategy.”)
(internal citations and quotations omitted). Thus, petitioner fails to show that the Illinois
Appellate Court’s reasoning was contrary to or involved an unreasonable application of
Strickland.

2. Trial counsel's investigation and advocacy of petitioner's case

On post-conviction review, petitioner only argued that trial counsel was not a vigorous
advocate because he failed to investigate and introduce evidence during petitioner’s suppression
hearing and trial. (Resp. Ex. E at 7.) In interpreting Strickland, 466 U.S. at 689, the post-
conviction court determined that a court “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable processional assistance” and that petitioner
must show substantial prejudice. (Resp. Ex. F at 8.) The post-conviction court held that
petitioner failed to make such a showing under Strickland.

As in his post-conviction petition, petitioner fails to point out what trial counsel failed to
do that resulted in a constitutional violation. See generally McCall, 908 F.2d at 173 (stating that
the “petitioner cannot meet [the Strickland] burdens absent a specific, affirmative showing as to
what the missing evidence or testimony would have been.”). Rather, based on the court’s review
of the record, the defense counsel’s theory of defense was to show that the State failed to carry its
burden. As such, petitioner fails to show that the post-conviction court’s reasoning was either

contrary to or involved an unreasonable application of Strickland.

22


Appellate Court’s reasoning because it was permissible for the prosecutor to show that
petitioner’s counsel lacked an evidentiary basis when he argued that petitioner denied that he
confessed and when he questioned Detective Karl’s credibility.

Accordingly, the court finds that the [llinois Appellate Court’s reasoning was not contrary
to, and did not involve, an unreasonable application of clearly established federal law as
determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1).

2. The “26" Street shuffle” comment

On direct appeal, the Illinois Appellate Court determined that the prosecutor’s comment
regarding the “26" Street shuffle” was improper. (Resp. Ex. B at 20.) The appellate court,
however, concluded that the prosecutor’s comment was harmless error because “the evidence
adduced at trial proved defendant guilty beyond a reasonable doubt, and the prosecutor’s
comments were not so prejudicial as to have materially contributed to defendant’s conviction.”
(id.)

On habeas review, petitioner asserts that the prosecutor engaged in misconduct when he
used the term the “26" Street shuffle” because he attacked the credibility of petitioner and his
counsel. Petitioner relies on Illinois case law where the courts reversed the defendant’s
conviction and remanded the case for a new trial because of the prejudicial effect of the
prosecutor’s improper remarks during trial. See People v. Weathers, 62 Ill. 2d 114, 120,

338 N.E.2d 880, 883-84 (1975) (during closing argument, the prosecutor told the jury that the
defendant was a “habitual criminal, who had not been caught before only because he was a
‘pretty sharp cookie,’ and because ‘he is too smart” given that there was no evidence to support

these statements); People v. Grizzel, 382 Ill. 11, 22, 46 N.E.2d 78, 82-83 (1943) (during closing

17



counsel’s objections, the prosecutor also argued that defense counsel could have subpoenaed the
Assistant State’s Attorney to testify about petitioner’s confession but failed to do so.

At the conclusion of the trial, the jury deliberated for three hours and returned a guilty
verdict. (Resp. Ex. F at 2.) Subsequently, the trial court sentenced petitioner to 40 years
imprisonment. On May 14, 1997, petitioner, represented by counsel, appealed his conviction,
raising, inter alia, the same claims included in his habeas petition with the exception of his
sufficiency of the evidence claim. (Resp. Ex. A, Appellate Court of Illinois, First Judicial
District, Case No. 1-96-1220, Opening Br. of the Def.-Appellant at 19, 22.) On April 24, 1998,

the Illinois Appellate Court affirmed his conviction. (Resp. Ex. B at 1.) On August 4, 1998,

+(...continued)
If they did think this was important, why didn’t they bring the State’s Attomney in this case

[DEFENSE COUNSEL]: Again Judge, objection. I don’t have a duty to bring in
witnesses,

THE COURT: Sustained.

[THE PROSECUTOR]: They have the right to subpoena in witnesses just like we do.
Back into the dance step that I was talking about, so what is confronting him. He had admitted to
the commission of this crime to Chicago Police Officers, admitted what he did.
eke
Now, I keep hearing there is no evidence in the case, but this is not no evidence, ladies

and gentlemen, and there has been no indication or evidence offered to contradict this.
ee

And it is not enough to stand up here and say they lied because of who they are, all of
these other things. You have to show us, show us what you mean when you say someone is lying.

Just because you can say the word liar, that is not enough.
ke

It doesn’t matter what community, but unless you can show some particular hatred
between the parties or some aspect of the case that was actually perjured or lied about, then you
don’t have a case. You can’t just say liar, you have to show something, and there is nothing.

kak

This is Chicago, and in Chicago, Mr. Green, you are guilty because you described to a
detective what you did, and because you can’t show us and have not shown us that the detective
lied about what he said, has he. It is just the opposite.

(Resp. Ex. L, Trial Tr. at 0-191-207.)



car to approach them, both petitioner and McKinzie ran off, heading eastbound toward
Baltimore. Suglich ran after them for less than one block, pursuing them into a yard with a
fence. Suglich was within six feet of petitioner when petitioner climbed the fence, looking back
at Suglich. The yard was illuminated by lights nearby. Suglich testified that he saw petitioner’s
face for “a good second or two.” Although petitioner escaped, Suglich succeeded in tackling
McKinzie.

Sergeant Ricardo Pina (“Pina”) also testified. At approximately 3:30 a.m., Pina was on
patrol in his squad car looking for the person who had fled from Suglich, a black male wearing
dark clothing with a hood, as described to him an hour earlier. Pina was driving southbound at
90" Street and Houston when he saw petitioner, who was wearing dark clothes, walking through
an alley behind a library. Petitioner was the only person on the street. Pina exited his squad car
and asked petitioner his name, address, and where he was going. Petitioner told Pina his name
and address, 8240 S. Ada, and said that he was coming from his girlfriend’s house at 87" Street
and Mackinaw. Petitioner, however, could not tell Pina a precise address or his girlfriend’s
telephone number.

Pina radioed Suglich, who was transporting McKinzie to the station at the time, for a
verification of the description of the suspect. Suglich described the suspect as a black male
wearing black pants and a black coat with a hood. Pina then handcuffed petitioner, placed him in
the squad car, and took him to the crime scene, where Suglich identified him as the individual
who had fled from him earlier.

Thereafter, the State rested. (Resp. Ex. L, Trial T. at O-164.) Before resting, defense

counsel requested the trial court to admonish petitioner. (id.) Petitioner stated that he agreed



Deputy Medical Examiner Thamrong Chira (“Dr. Chira”) testified that he performed the
autopsy on the victim. Dr. Chira determined that the victim died of five gunshot wounds and that
blunt trauma to the head was a significant contributing factor. Dr. Chira also found other injuries
consistent with being kicked.

Josephine Muhammad (“Muhammad”) testified that on January 30, 1995, at about 2:20
a.m., she heard five gunshots from the rear of her house at 9018 South Burley. She then heard
somebody fall against her bedroom window and groan, “Help me, somebody help me.” She
heard the voice from the front of her house, so she went to look out her living room window.

She saw the victim standing in front of her neighbor’s house stumbling and asking for help. Four
or five people came by and told the victim they would get help. Muhammad testified that when
the people left two men came from the gangway. One man stayed at the end of the gangway,
while another hooded man came out, grabbed petitioner, and dragged him by his feet into the
gangway. She heard the victim say, “No, don’t do that to me.” Muhammad then heard the men
kicking the victim in the gangway and saying, “Die, motherf***er.” Muhammad heard the
victim scream, “Don’t hurt me,” then silence. The police arrived soon afterward.

Officer Dennis Suglich (“Suglich’”) testified that he was on his way to the scene of the
shooting in his squad car when he received the flash radio message that two black males wearing
dark clothes were seen leaving the scene of a crime heading westbound. A few minutes later,
Suglich saw petitioner and McKinzie, both dressed in black, running through an empty lot only
one and a half blocks from the scene of the crime. Petitioner and McKinzie were the only two
people on the street. When petitioner and McKinzie saw Suglich’s squad car, they attempted to

hide against the side of an abandoned building bordering the lot. When Suglich exited his squad


argument, the prosecutor referred to the defendants as “crooks, thugs and gangsters” and also
stated, ‘Look at those [(one of the defendant’s)] eyes. Aren’t they the slant eyes of a Jap?””),
People v. McCollum, 239 Ml. App. 3d 593, 599-600, 607 N.E.2d 240, 245-46 (3d Dist. 1993)
(throughout trial, the prosecutor made several improper comments, including that the blood
sample from the victim came from the victim’s heart, noting the defense investigator’s salary was
higher than local police salaries and aligning himself with the local police, stating “I guess us
poor old country boys in Hancock County didn’t do too bad.””); People v. McCray, 60 Ill. App.
3d 487, 489-90, 377 N.E.2d 46, 47-48 (1* Dist. 1978) (during cross-examination, the prosecutor
asked the defendant if he had “‘[aJny occupation other than robbing people.’””).

The Illinois Appellate Court determined that, although the prosecutor’s use of the term
the “26" Street shuffle” was improper, his comments resulted in harmless error. This court
agrees. Taken in context, the prosecutor’s use of the term “26" Street shuffle” was not so
improper as to prejudice the petitioner. The cases cited by petitioner demonstrate, unlike here,
misconduct on the part of the prosecutor conceming unsupported remarks directed at the
ethnicity or criminal nature of a defendant. Rather, the prosecutor’s comments appear to fall
within the constitutional confines of the adversarial system. See United States v. Moore,

104 F.3d 377, 390-91 (D.C. Cir. 1997) (finding that although the prosecutor’s reference to the
defendant’s attorney as a “professional arguer[]” who “mucks . . . up” the “judicial system,”
could have been construed as disparagement, but that it fell within the prosecutor’s duty to “point
out to the jury that the doubt that will prevent a conviction is a doubt founded upon reason not

one suggested by the ingenuity of counsel.”).

18


+(...continued)
however, quotes from the trial transcript in greater length as follows:

1 am going to show you a dance step today, ladies and gentlemen, and it is called the 26"
Street shuffle. The first step, ladies and gentlemen, is this: You don’t present any evidence and

then you comment about how all of people [sic] are liars,
ae

And I remind you the defense had the audacity to say that without any proof whatever,
any proof whatever. He say [sic] that Detective Karl lied.
Kae
He was given the opportunity to cross examine Detective Karl. Well, Detective Karl,
isn’t it true that my client was there for forty hours. Did anyone testify that anything bad happened
to poor Antwan Green, the murderer of a twenty-two year old, during that forty hour period of
time.

Did anyone come in and say Antwan Green had his rights violated. Did anyone say he
was not allowed to eat or go to the bathroom. Did any person come in here and say Antwan Green
was examined by a physician and he told anyone anything,

Did anybody come in at all to tell you that anything happened to him during that forty
hour period. Did one person whisper it. I kept looking and listening like you folks during the
course of this trial for someone, anyone to say what happened to Antwan Green that was bad,
because that is evidence. That is evidence. And did anyone say poor, poor Antwan Green. That is

what happened. This is what happened to Antwan Green,
we

Now, at any point in this trial, has any tangible evidence been offered by the defendant to
dispute that.

(DEFENSE COUNSEL]: Objection Judge, I don’t have to. He didn’t have --
THE COURT: Objection sustained.

{THE PROSECUTOR]: If something happened during that forty hour period, there has

been no evidence that anything was done, and that is very clear.
«KH

We know that he lied to lied to Sergeant Pina when he came into contact with him. He
said I was with my girlfriend at 83" and whatever, and what is her address and her phone number,
he can’t remember,

Per
So, that is the first contact he has with the police. There is no evidence, he just said that. He said
the only thing my client did was deny it. Did anyone hear that? Did anybody hear any witness say
that? No, and you know why, it is called the 26" Street shuffle, because here is what happens, you

get a case like this, and you think what am I going to do.
+k

The defendant has admitted what he did in this case, he told Chicago Police Officers and
the Assistant State’s Attorney * * *. He said where is the Assistant State’s Attorney. Well, he
might have forget [sic] this, but we both have the right to subpoena people. We can bring in any
witness to court we want to in connection with this case, and any witness we feel has relevant
information.

(continued...


(on Claim (3): sufficiency of the State’s evidence to convict petitioner

Petitioner raised his claim that the State failed to prove his guilt beyond a reasonable
doubt for the first time in his post-conviction petition. The post-conviction court determined that
petitioner waived this claim because he should have raised it on direct appeal and not on post-
conviction review, citing People v. Izquierdo, 262 Ill. App. 3d 558, 560, 634 N.E.2d 1266, 1268
(4" Dist. 1994) (“Reasonable doubt of a defendant’s guilt is not a proper issue for a post-
conviction proceeding.”), and People v. Stewart, 123 Ill. 2d 368, 372, 528 N.E.2d 631, 633
(1988) (stating “[a] post-conviction proceeding is not one in which a defendant’s guilt or
innocence is determined, but rather is limited to consideration of constitutional issues which have
not previously been reviewed.”).

It is clear that the post-conviction court relied on waiver as an independent and adequate
state law ground to dismiss petitioner’s sufficiency of the evidence claim. See Schaff'v. Snyder,
190 F.3d 513, 524-26 (7" Cir. 1999) (“The state appellate court properly applied the Illinois law
of waiver and correctly concluded that, because the claim could have been raised and addressed
on direct appeal but was not, it was waived.”). Thus, the court finds claim (3) to be procedurally
defaulted. Nevertheless, as discussed with respect to claim (1), the court considers the
sufficiency of the evidence claim on the merits because, on direct review, the Illinois Appellate
Court reasoned that the prosecutor’s misconduct was harmless error given that, inter alia, the
evidence adduced at trial was sufficient to support petitioner’s guilt beyond a reasonable doubt.

For a sufficiency of the evidence claim, the court must ask: “whether after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 US.

24



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge Joan H. Lefkow than Assigned Judge
CASE NUMBER 01 C 6625 DATE 1/5/2004
CASE Green vs. Bryant
TITLE =
{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.)
DOCKET ENTRY:
(60) Oo Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due.
(4) Oo Ruling/Hearing on__- __ set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) o Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) CLocal Rule 41.1 COFRCP41(a)\(1) [ FRCP41(a)(2).
qo) i [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons stated in the
Memorandum Opinion and Order, the court concludes that petitioner is not entitled to relief and petition
for writ of habeas corpus is hereby denied and case is terminated.
al) @ [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
2
No notices required. number of notices
a | Notices mailed by judge’s staff. JAN 0 & 2004
Notified counsel by telephone, date docketed
Docketing to mail notices,
| Mail AO 450 form. Mailed by MD.
Copy to judge/magistrate judge.
courtroom
MD deputy’s .
initials i

Datelime febdivad ft

central Clerk’s Office

rnailing deputy initials



On August 24, 2001, petitioner filed a pro se petition for writ of habeas corpus in the
United States District Court for the Central District of Illinois. Subsequently, the district court
transferred the petition to the Northern District of Illinois, where it is now before the
undersigned.

DISCUSSION
A. Claim (1): prosecutorial misconduct

Petitioner alleges that the prosecutor engaged in misconduct during his rebuttal argument
because (1) he referred to petitioner’s failure to testify and (2) improperly labeled petitioner’s
counsel’s argument as the “26" Street shuffle.” Respondent argues that the Illinois Appellate
Court’s reasoning on direct review was not contrary to, and did not involve an unreasonable
application of, clearly established federal law as determined by the United States Supreme Court.
See 28 U.S.C. § 2254(d)(1).

To show prosecutorial misconduct, petitioner must demonstrate that the remarks were
improper and that they “so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). In evaluating
prosecutorial misconduct, the court considers several factors, namely, “(1) whether the
prosecutor misstated the evidence, (2) whether the remarks implicate specific rights of the
accused, (3) whether the defense invited the response, (4) the trial court’s instructions, (5) the
weight of the evidence against the defendant, and (6) the defendant’s opportunity to rebut.”
Hough v. Anderson, 272 F.3d 878, 903 (7" Cir. 2001), citing Darden, 477 U.S. at 181. “These
factors, however, are not to be applied in a rigid manner, but should be used as a guide to

determine whether there was fundamental unfairness that infected the bottom line. For that

11


petitioner filed a pro se petition for leave to appeal. (Resp. Ex. C, Supreme Court of Illinois,
Case No. 1-96-1220, Pet. for Leave to Appeal at 12, 15.) The Illinois Supreme Court summarily
denied the petition on October 6, 1998. (Resp. Ex. D, Supreme Court of Illinois, No. 86079,
Order of Oct. 6, 1998.)

On or about November 30, 1998, petitioner filed a pro se post-conviction petition under
725 ILCS 5/122-2 et seq., raising, inter alia, the ineffective assistance of counsel and sufficiency
of the evidence claims that are included in his habeas petition. (Resp. Ex. E, Circuit Court of
Cook County, Illinois, Post-Conviction No. 95 CR.6108, Pet. for Post-Conviction Relief at 3-7.)
The post-conviction court dismissed the petition as frivolous and patently without merit on
January 25, 1999. (Resp. Ex. F at 11.) Petitioner filed a notice of appeal on February 28, 1999
and received appointed counsel from the Illinois Public Defender’s Office. Petitioner’s counsel
filed a motion to withdraw on October 14, 1999. (Resp. Ex. G, Appellate Court of Illinois, First
Judicial District, No. 99-1137, Mot. to Withdraw.) Petitioner filed a response letter to counsel’s
motion to withdraw on December 7, 1999. (Resp. Ex. H, Appellate Court of Illinois, First
Judicial District, No, 99-1137, Resp. Letter in Opp’n to Counsel’s Withdraw.) On January 21,
2000, the Illinois Appellate Court granted the motion to withdraw and affirmed the post-
conviction court’s judgment. (Resp. Ex. I, Appellate Court of Illinois, First Judicial District, No.
1-99-1137, Order of Jan. 21, 2000 at 2.) Petitioner filed a pro se petition for leave to appeal on
May 12, 2000, (Resp. Ex. J, Supreme Court of Illinois, No. 89477, Pet. for Leave to Appeal),
which the Illinois Supreme Court summarily denied on July 5, 2000. (Resp. Ex. K, Supreme

Court of Illinois, No. 89477, Order of July 5, 2000).

10



with counsel’s decision not to present additional evidence or to call witnesses. (/d.) Then the
defense rested.

The court then proceeded to closing arguments. During closing argument, petitioner’s
trial counsel stated that petitioner denied making a confession. Petitioner’s counsel also pointed
out that the State failed to document the existence of the confession and questioned the
credibility of the State’s witness, Detective Karl, who testified about the confession.? On
rebuttal, the prosecutor labeled the petitioner’s counsel’s argument as the “26" Street shuffle,”
(presumably referring the Cook County Criminal Courthouse, located at 2650 South California
Avenue). The prosecutor pointed out that no one testified to contradict Detective Karl’s
testimony about petitioner’s confession and thus petitioner’s counsel failed to produce evidence
to refute the State’s evidence. Moreover, the prosecutor stated that petitioner’s counsel failed to

produce evidence that Detective Karl was a liar? Despite the trial court’s sustaining defense

*On direct appeal, the Illinois Appellate Court relied on the following excerpt from defense counsel’s
closing argument:

[Defendant] never gave a statement, and I will tell you why he never gave a statement,
There is nothing in the reports, nothing written, nothing signed, and Detective Karl told you about
the State’s Attorney, to try and give his own story credibility, he said I had a lawyer there who
heard Antwan give that statement, a lawyer who works with them, with these two gentlemen right
there.

Where is he. If he was there and he heard the statement, don’t you think it was [sic] make
sense that he would come in here and tell you what he heard, and see if what he heard is the same
as what Detective Karl told you. Absolutely. It makes sense. The reason that they don’t want to
do that, is because they know it is not true. * * *. We won’t put anybody else on, and that should

be enough. We can slide that one by, because we don’t know if he shot him or if he was involved.
ok

This is not a young man who fell apart and just decided to give a statement. He did not
give a statement, he never said that. As a matter of fact, the only thing he did was deny this.

(Resp. Ex. L, Trial Tr. at 183085, 189.)

>The Illinois Appellate Court also relied on an excerpt from the prosecutor’s rebuttal argument. The court,
(continued...)



appellate court held trial counsel’s performance neither was deficient nor prejudicial to
petitioner. (/d.)

On habeas review, petitioner argues that the appellate court’s reasoning was erroneous
because, “(t]rial {cJounsel should not be allowed to shield themselves from allegation[s] of
ineffectiv[e]ness by simply claiming trial strategy[,]” citing McCall v. O’Grady, 908 F.2d 170
(7" Cir. 1990). Petitioner’s reliance on McCall, however, is unavailing. In McCall, during the
petitioner’s criminal trial, his counsel attempted to impeach the victim with statements from a
police report. Zd. at 175-76. The State objected to counsel’s questioning because the police
report did not contain the victim’s direct statements but rather contained the victim’s recounting
of what he said to a detective. Because the evidence was critical to the petitioner’s criminal case
and the trial counsel failed to perfect the impeachment, the petitioner sought a writ of habeas
corpus based on an ineffective assistance of counsel claim. Without holding an evidentiary
hearing, the lower court agreed with the petitioner and granted the writ. On appeal, the Seventh
Circuit decided to reverse and remand the case for an evidentiary hearing. Specifically, the court
stated that the petitioner “must come forward with ‘sufficiently precise information’ (i.e.
testimony by [the petitioner’s trial counsel] and/or [the investigating police officer] or the
equivalent thereto) to establish that [the petitioner’s trial counsel’s] aborted impeachment attempt
was indeed a ‘failure’ and not a strategic decision.” Jd. at 175.

Here, unlike in McCall, the appellate court had facts before it that demonstrated that
petitioner’s trial counsel clearly used the GSR testimony as a matter of trial strategy.

See Strickland, 466 U.S. at 689 (“Because of the difficulties inherent in making the evaluation, a

court must indulge a strong presumption that counsel’s conduct falls within the wide range of

21



in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991);
Anderson v. Cowen, 227 F.3d 893, 899 (7" Cir. 2000).
FACTS AND PROCEDURAL HISTORY

When considering a habeas petition, this court must presume that any state court’s factual
determinations are correct unless the petitioner rebuts the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7" Cir. 2002).
Although the court mostly agrees with the Illinois Appellate Court’s summation of the facts, it
also relies on the state court record where necessary.

In early 1995, the State charged petitioner and Dwayne McKinzie (“McKinzie”) with
first-degree murder of Orlando Owens. McKinzie pled guilty and received a sentence of 24 years
imprisonment. (Resp. Ex. F, Circuit Court of Cook County, Illinois, Post-Conviction No. 95 CR
6108, Order of Jan. 25, 1999, at 2.) Petitioner was tried by a jury, where he was represented by
counsel. Unless otherwise specified, the following is a recitation from the Illinois Appellate
Court’s direct review of petitioner’s conviction (Resp. Ex. B, Appellate Court of Illinois, First
Judicial District, Case No. 1-96-1220, Order of Apr. 24, 1998 at 2-9):

During the State’s case-in-chief at petitioner’s trial, Detective George Karl (“Detective
Karl”) testified that petitioner gave a statement after Detective Karl informed petitioner of his
constitutional rights under Miranda v. Arizona, 384 U.S. 436 (1966), in the early morning hours
of his arrest on January 31, 1995. Petitioner told Detective Karl that he and McKinzie drove his
tan Chevy to 83 and Kingston where they met the victim. The victim entered petitioner’s car
and opened a bottle of beer, then the victim and McKinzie began fighting. Petitioner stated that

he pulled into the alley at 9016 Burley and told the victim and McKinzie to exit the car. After


The Illinois Appellate Court’s determination that the prosecutor’s comments were in
response to petitioner’s counsel’s comments that petitioner denied making a confession, and that
Detective Karl was not a credible witness, comports with clearly established federal law as
determined by the United States Supreme Court. See United States v. Robinson, 485 U.S. 25, 32
(1988) (“Where the prosecutor on his own initiative asks the jury to draw an adverse inference
from a defendant’s silence, Griffin holds that the privilege of self-incrimination is violated. But
where as in this case the prosecutor’s reference to the defendant’s opportunity to testify is a fair
response to a claim made by defendant or his counsel, we think there is no violation of the
privilege.”).' Thus, unlike Berryman, where the prosecutor initiated the comment on defendant’s
silence, here, as in Robinson, the prosecutor responded in rebuttal to defendant’s challenge to the

credibility of the State’s witnesses.

‘Petitioner further contests the propriety of the prosecutor’s comments by arguing that the prosecutor
“artfully mixed” petitioner’s failure to testify with his representations that the State’s evidence was uncontroverted,
(Pet. Reply.) As support for his argument, petitioner cites United States v. Shue, 766 F.2d 1122, 1127-28 (7" Cir,
1985). In Shue, the court held that the prosecutor violated the rule from Doyle v. Ohio, 426 U.S. 610 (1976), which
is that “the prosecution may not use a defendant’s post-arrest silence to impeach an exculpatory story told at trial.”
The court in Shue determined that the prosecutor improperly implied that the defendant’s exculpatory story told on
the witness stand was false because he did not tell it to the government agents after his arrest. Because the defendant
was subject to cross examination, the court recognized that

[the] slight suggestion of guilty is inextricably intertwined with any use of post-arrest silence to
impeach credibility. ... In the present case, the [prosecutor] . . . implied more than the slight,
inextricably intertwined suggestion of guilt--the prosecutor emphasized the suggestion of guilt.
This use violates our notion of fundamental fairness.

Shue, 766 F.2d at 1131. The court reversed the defendant’s conviction and remanded the case for a new trial.

Here, petitioner’s claim does not concern a violation under Doyle but rather a violation under Griffin. Cf
Phelps v. Duckworth, 772 F.2d 1410, 1418-19 (7" Cir, 1985) (“Doyle v. Ohio, originally was linked to the policy
against self-incrimination through Griffin as well as Miranda [v. Arizona, 384 U.S. 436 (1966)]. But with the former
link severed, Doyle now depends just on Miranda{[.]”) (Posner, J. concurring). As discussed above, petitioner fails
to demonstrate that petitioner’s counse!’s comments did not invite the prosecutor’s comments on rebuttal.

14


longer is applicable after the passage of the AEDPA because that rule derived from circuit courts
of appeals and not the Supreme Court of the United States. /d. at 106-07, citing Freeman v.
Lane, 962 F.2d 1252, 1260 (7" Cir. 1992) (“Comments by the prosecutor on the state of the
evidence that may indirectly refer to the defendant’s silence . . . have not been the subject of
direct Supreme Court guidance.”). Thus, petitioner cannot show that the prosecutor’s indirect
comments on his failure to testify resulted in constitutional error such that it merits habeas relief.
Finally, with respect to the Illinois Appellate Court’s reliance on Gant, petitioner argues
that Gant is distinguishable because the prosecutor in Gant was commenting on expert
testimony. Petitioner’s attempt to distinguish Gant is without merit. In Gant, during his closing
and rebuttal arguments, the prosecutor pointed out that the State’s witness, the forensic
pathologist, was the only witness who testified about the victim’s cause of death. 202 Ill. App.
3d at 224, 559 N.E.2d at 927. The appellate court recognized the rule that it is improper for the
State to comment on the failure of the defendant to call a witnesses or to present evidence. Id.
The appellate court, however, determined that the prosecutor did not violate this rule because,
viewing the context of his statements, it was “permissible to comment on the uncontradicted
nature of the evidence for the purpose of demonstrating the absence of any evidentiary basis for
defense counsel’s argument.” Jd. There, the forensic pathologist was the only expert to testify

about the victim’s cause of death. /d. at 225, 559 N.E.2d at 927. Here, Gant supports the Illinois

“The Ilinois Appellate Court determined that petitioner was not the only person who could refute the
State’s evidence. Here, petitioner asserts that factual determination is incorrect. As mentioned earlier, when
considering a habeas petition, this court must presume that any state court’s factual determinations are correct unless
the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Todd, 283 F.3d at
846. The Illinois Appellate Court did not identify the other witness or witnesses who could refute the State’s
evidence, although the facts indicate that Assistant State’s Attorney Pollack could have refuted Detective Karl’s
testimony that the petitioner confessed.

16



unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States” or “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.” See 28 U.S.C.

§ 2254(d); Price v. Vincent, U.S. __, 123 S. Ct. 1848, 1852 (2003). A state court’s decision is
contrary to clearly established Supreme Court precedent “if the state court arrives at a conclusion
opposite to that reached by (the Supreme] 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 [it].” Williams v. Taylor, 529 U.S. 362, 405 (2000). In order for a
state court decision to be considered “unreasonable” under this standard it must be more than
incorrect, it must lie “well outside the boundaries of permissible differences of opinion.”
Hardaway v. Young, 302 F.3d 757, 762 (7" Cir. 2002); see also Schultz v. Page, 313 F.3d 1010,
1015 (7" Cir. 2002) (reasonable state court decision must be at least minimally consistent with
the facts and circumstances of the case).

Before reviewing the state courts’ decisions, however, the court must determine whether
the petitioner fairly presented his federal claims to the state courts, as any claim not presented to
the state’s highest court is deemed procedurally defaulted. O'Sullivan v. Boerckel, 526 US. 838,
844-45 (1999). Moreover, “(a] federal court will not review a question of federal law decided by
a state court if the decision of the state court rests on a state procedural ground that is
independent of the federal question and adequate to support the judgment.” Moore v. Bryant,
295 F.3d 771, 774 (7" Cir. 2002). A federal court may not grant habeas relief on a defaulted
claim unless the petitioner can demonstrate cause for the default and actual prejudice as a result

of the alleged violation of federal law, or demonstrate that failure to consider the claim will result


307, 319 (1979) (emphasis in original). In applying this standard, the habeas court gives
deference to the trier of fact and does not make credibility determinations, substitute judgments
or re-weigh the evidence. See Ford v. Ahitow, 104 F.3d 926, 938 (7" Cir. 1997) (stating, “in
Jackson, [443 U.S. at 319,] the Court made clear that the responsibility for resolving conflicts in
the testimony, for weighing the evidence and for drawing reasonable inferences from the basic
facts to ultimate facts, is indeed the domain of that trier of fact”); United States v. Mejia,

909 F.2d 242, 245 (7" Cir. 1990) (“Credibility is for the jury, not this court, to determine [the
witness’] testimony was not inherently unbelievable; it did not contradict the laws of nature or
other indisputably true evidence.”).

Here, petitioner argues that the jury convicted him based on circumstantial evidence that
was insubstantial to prove his guilt beyond a reasonable doubt. Specifically, petitioner points out
that the State relied on the inconclusive GSR testimony, the “sketchy” description of his vehicle
and that his vehicle was in the same vicinity as the crime scene. Furthermore, petitioner points
out that the State produced no gun, his fingerprints were not found on his vehicle, that none of
the eyewitnesses could identify him as the perpetrator and that the coat he was wearing did not
match the police’s description because his coat did not have a hood. Petitioner asks this court to
re-weigh the evidence and disregard the evidence of his confession which the jury was entitled to
credit. Thus, the court finds that petitioner cannot show that the Illinois Appellate Court’s
reasoning that the jury convicted him on evidence that established his guilt beyond a reasonable
doubt was contrary to, or involved an unreasonable application of, clearly established federal law
as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1). For these

reasons, the court denies claim (3).

25



UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
United States of America ex rel.
ANTWAN GREEN,
Petitioner,
vs. No. 01 C 6625

Judge Joan H. Lefkow~
STEVEN C. BRYANT,
Warden,

Graham Correctional Center,'!

po

JAN 6.9

Respondent.

MEMORANDUM OPINION AND ORDER i! fy

In a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner Antwan
Green (hereinafter referred to as “Antwan,” “defendant” or “petitioner”) challenges his
conviction for first-degree murder entered in the Circuit Court of Cook County, Illinois.
Petitioner contends that his conviction was the result of constitutional error. Petitioner raises the
following claims in his habeas petition: (1) prosecutorial misconduct; (2) ineffective assistance of
trial counsel; and (3) insufficient evidence to prove petitioner’s guilt beyond a reasonable doubt.
For the reasons stated below, the court denies petitioner’s claims.

HABEAS STANDARDS

Pursuant to the Antiterrorism and Effective Death Penalty Act (‘“AEDPA”), this court

must deny a petition for a writ of habeas corpus with respect to any claim adjudicated on the

merits in the state court unless the state court’s decision “was contrary to, or involved an

‘Steven C. Bryant is listed as the Warden for Graham Correctional Center, where petitioner currently is in
custody, and thus is the proper respondent in this habeas action. See Rule 2(a) of the Rules Governing Habeas
Corpus Cases under 28 U.S.C. § 2254. This court hereby substitutes Steven C. Bryant as respondent. See Fed. R.
Civ. P. 25(d)(1).


reason, [courts] often have characterized the weight of the evidence as the most important
consideration.” Hough, 272 F.3d at 903 (internal citations and quotations omitted).
dl. Whether the prosecutor commented on petitioner’s failure to testify

On direct appeal, petitioner argued that the prosecutor made improper comments by
referring to petitioner’s failure to testify. The Illinois Appellate Court held that “the prosecutor’s
remarks in closing rebuttal argument were not improper references to defendant’s failure to
testify or present witnesses.” (Resp. Ex. B at 17.) Rather, the appellate court determined that
because petitioner’s counsel’s closing argument concerned the strength of the State’s case,
petitioner’s counsel invited the prosecutor’s comments on rebuttal. (/d.) The appellate court
recognized the rule from People v. Barrow, 133 Ill. 2d 226, 268, 549 N.E.2d 240, 258-59 (1989),
that a prosecutor cannot comment on the uncontradicted nature of the evidence if his comment is
intended to call the jury’s attention to the defendant’s failure to testify. The appellate court,
however, further recognized that Barrow, 133 Ill, 2d at 267-69, 549 N.E.2d at 258-59, provides
that a prosecutor may comment that “the evidence of guilt is unrefuted . .. where an accused
presents no evidence in his own defense and he is not the only person who could have done so.”
(Resp. Ex. B at 17-18.) The appellate court reasoned that, when the prosecutor’s rebuttal
argument was “viewed in context,” petitioner’s counsel had invited the prosecutor’s comments
by stating that petitioner never gave a statement except a denial and that the State’s witness lied
about petitioner’s confession and arrest. (Resp. Ex. B at 19). The appellate court also stated,
“Here, defendant was not the only person who could have refuted the State’s evidence.” (Jd.)
The appellate court analogized petitioner’s case to People v. Gant, 202 Ill. App. 3d 218, 224, 559

N.E.2d 923, 927 (1* Dist. 1990), in which the court denied relief where the prosecutor

12



With respect to the prosecutor’s indirect comments on petitioner’s failure to testify,
petitioner asserts that the prosecutor’s comments concerning the uncontradicted evidence of
petitioner’s confession were improper because he was the only witness who could testify in
response to the State’s evidence. Petitioner relies on United States v. Handman, 447 F.2d 853,
855-56 (7" Cir. 1971), and Raper v. Mintzes, 706 F.2d 161, 166 (6" Cir. 1983). In Handman,
447 F.2d at 855, the court reversed the defendant’s conviction and remanded his case for a new
trial because the prosecutor made several improper comments such as referring to the
goverment witness’ testimony as ““‘intact, unchallenged and uncontradicted” where only the
defendant “could have challenged or contradicted [that witness’} vital testimony.” In Raper,
706 F.2d at 166, the court upheld the lower court’s granting of the writ of habeas corpus because
the prosecutor made at least five improper and indirect references to the petitioner’s failure to
testify such as that the State’s evidence was uncontradicted or unrefuted but the petitioner was
the only witness besides the State’s witness who could testify as to the evidence. Finally,
petitioner contends that the Illinois Appellate Court’s reliance on Barrow, 133 Ill. 2d at 267-69,
549 N.E.2d at 258-59, was erroneous because the court in Barrow determined that other
witnesses besides the defendant could refute the State’s evidence whereas petitioner argues that
he was the only witness who could refute the State’s evidence.

Prior to the passage of Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d), the Seventh Circuit set forth a rule that the State violates a
defendant’s right not to testify where the prosecutor repeatedly refers to the State’s evidence as
uncontroverted but the defendant is the only witness who is able to refute that evidence. See

Yancey, 113 F.3d at 106-07. In Yancey, however, the Seventh Circuit recognized that this rule no

15