system is that such instructions are taken seriously.”); see also United States v. Nobles, 69 F.3d
172, 184 (7th Cir.1995). The defense had ample opportunity to cross-examine the one
eyewitness that did place Moore at the scene of the crime and point out other weaknesses with
the prosecution’s case. Moreover, defense counsel had the opportunity to point out in closing
that the prosecution had not delivered what it promised: several witnesses who would place
Moore at the scene. Finally, the prosecution presented adequate evidence such that a rational
trier of fact could convict Moore beyond a reasonable doubt on the basis of Sims’ testimony.

This Court’s conclusion is in line with that of the Illinois Appellate Court. Although the
state court did not explicitly mention Darden, it did conclude that the prosecutor’s failure to
present promised witnesses did not keep defendant from having a fair trial because the error was
harmless under Illinois law and added, “that statement did not deny the defendant a fair trial
since...the defendant was not substantially prejudiced by it.” The court went on to note that the
statement was not detailed and failed to do more than place Moore at the scene of the crime. Any
prejudicial impact was minimized, the court reasoned, because the jury was instructed that
opening arguments were not evidence and should be disregarded if unsupported by evidence.
The court then concluded that the error was harmless, as Moore did not suffer from substantial
prejudice as a result.

While the state court did not specifically undertake the review of prosecutorial
misconduct set out in Darden, this Court does not find its approach to the prosecutorial
misconduct to be contrary to, or an unreasonable application of, federal law. A state court’s
failure to apply federal law does not lead to habeas relief if the standard the state court applied is

as demanding as the federal standard. See Oswald v. Betrand, 374 F.3d 475, 477 (7" Cir. 2004),

“14.



During closing arguments, the prosecutor advised the jury that it would receive

instructions on how to weigh identification testimony. The actual instruction stated, “When you
weigh the identification testimony of a witness, you should consider all the facts and
circumstances in evidence, including, but not limited to, the following: [t]he opportunity the
witness had to view the offender at the time of the offense; or [t]he witness’s degree of attention
at the time of the offense; or [t]he witnesses earlier description of the offender; or [t]he level of
certainty shown by the witness when confronting the defendant; or [t]he length of time between
the offense and the identification confrontation.” The prosecutor enumerated the factors set out in
the instruction. She then told the jury to look closely at the instruction and stated, “You only
need to find one of those facts to have a good identification.” Defense counsel objected. After
defense counsel’s objection was overruled, the prosecutor stated that all five factors supported a
finding of reliability.

In his closing argument, defense counsel told the jury to consider all the identification
factors as well as all the other instructions. He later characterized the prosecutor’s claim that
only of the factor needed to be present as “misleading” and “preposterous.” After the prosecutor
objected to defense counsel’s statement, the judge told the jury that the instruction would indicate
the factors to be considered and that it was for the jury to decide “whether or not any or all of
those factors [we]re present.”

During the course of the trial, the judge also instructed the jury that opening arguments
were not evidence and should be disregarded if not supported by the evidence. In addition, the

judge advised the jury that “[yJou must not consider that anonymous phone call in any way,



prejudicial that Moore was deprived of a fair trial. Even if the prosecutor had not made the

comment, the weight of the evidence indicates that Moore would have been convicted. Neither
Sims’ detailed testimony about Moore approaching the decedent, threatening him, and pointing a
gun at him right before the crime, nor Sims’ testimony about hearing a shot emanating from the
place where Moore was standing were effectively disputed. Sims testified that he positively
identified Moore on two different occasions prior to his in-court identification. The evidence
presented suggested that Sims was a reliable witness.

The state court’s conclusion that the prosecutor’s comment was not a ground for reversal
is consistent with the rule set forth in Darden. See U.S. v. Uchtman, 2005 WL 1766373 (N.D. Ill.
2005)(finding state court’s conclusion that remarks at issue could not have been “a material
factor in the conviction or that the jury’s verdict might have been different absent the remark” a
consistent application of Darden). The statement did not cause sufficient prejudice such that
Moore was denied due process.

Conclusion

For the foregoing reasons, Moore’s 28 U.S.C §2254 petition for the writ of habeas corpus
is DENIED. Moore’s motion for status is DENIED as MOOT. All other motions are MOOT and
TERMINATED. This case is CLOSED.

Enter:

/s/ David H. Coar
David H. Coar

United States District Judge
Dated: 10/20/05

-18-



Moore must prove that his counsel's performance "fell below an objective standard of
reasonableness." /d. at 688. Second, Moore must prove that, but for counsel's deficiency, there
is a reasonable probability that the outcome would have been different. See id. at 694. Moore
must prove both in order to prevail. See id. at 697. Failure to prove prejudice, then, is sufficient
to defeat an ineffective assistance of counsel claim. See id. at 697. As the Supreme Court has
noted, “there is no reason for a court deciding an ineffective assistance claim...even to address
both components of the inquiry if the defendant makes an insufficient showing on one, In
particular, a court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies... If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed.” Jd. at 697. Moreover, Moore “bears
a heavy burden in showing that his counsel was ineffective and that his defense was actually
prejudiced.” U.S. v. Alex Janows & Co., 2 F.3d 716, 721 (7" Cir. 1993)(citing United States v.
Holland, 992 F.2d 687, 691 (7th Cir. 1993)).

In this case, Moore fails to show prejudice such that even if trial counsel had acted
differently, he would have prevailed at trial. He was identified by an eyewitness, Sims, on three
separate occasions. Sims had an unobstructed view of Moore pointing a gun at the decedent right
before the shooting. He recognized Moore, having seen him “plenty of times” before then. Sims
was not impeached. None of the other witnesses disproved or contradicted his testimony.

There is not a reasonable probability that the outcome at trial would have been different
had counsel acted in the manner Moore wants him to have acted. At best, the jury would have

been alerted to the fact that the prosecution failed to present promised witnesses: a fact, of

-10-



Moore also filed a petition for post-conviction relief, which the trial court dismissed on
January 4, 2004, The Illinois Appellate Court affirmed the denial of Moore’s post-conviction
petition on October 2, 2001. The Illinois Supreme Court denied leave to appeal on February 6,

2002. Moore then filed a habeas petition in this Court.

Standard of Review

Federal courts may not grant a writ of habeas corpus to a prisoner held under a state court
judgment unless custody of the prisoner violates the Constitution, laws, or treaties of the United
States. 28 U.S.C. §2254 (a); Mahaffey v. Schomig, 294 F.3d 907, 914 (7" Cir. 2002). Moreover,
before a federal court will grant a habeas petition, the petitioner must both exhaust state remedies
and comply with state rules regarding procedural default. Mahaffey, 294 F.3d at 914-915.
Habeas corpus petitioners exhaust all of their state court remedies when: (1) they present them to
the highest court of the state; or (2) no state remedies remain available to the petitioner at the
time that the petition is filed. See Farrell v. Lane, 939 F.2d 409, 410 (7" Cir. 1991).

Procedural default occurs either when (1) a petitioner fails to raise an issue on direct
appeal or post-conviction review, see Farrell, 939 F.2d at 410; or (2) the state court clearly relies
on a state procedural bar as an independent basis for its denial of relief. See Caldwell v.
Mississippi, 472 U.S. 320, 327 (1985).

Even where a federal court reaches the merits of a petitioner’s claim, relief is only
warranted in certain circumstances. To prevail, a habeas corpus petitioner must show that
adjudication of the case resulted in a decision that was:(1) contrary to, or (2) an unreasonable

application of clearly established federal law as determined by the United States Supreme Court;

-7-



shape or form as to indicating or supporting whoever the offenders were in this case. It’s simply
to show you why the officer did what he did after that phone call.”

After he was found guilty, Moore was sentenced to concurrent prison terms of forty years
for first degree murder and fifteen years for armed robbery. The Illinois Appellate Court
affirmed Moore’s conviction in an unpublished order issued on February 16, 1999, and ruled that
his good-time credit was not to be calculated according to the challenged version of the statute.

On direct appeal, Moore’s counsel offered a variety of arguments for reversal. He argued
that: 1) the evidence was insufficient to prove he was guilty beyond a reasonable doubt when it
was based upon the testimony ofa single eye-witness 2) the acquittal of Moore’s co-defendant
raised a reasonable doubt of Moore’s guilt 3) Moore was denied a fair trial when the prosecutor
failed to present testimony of eyewitnesses referenced in the prosecutor’s opening argument and
was denied effective assistance of counsel when his trial counsel failed to preserve the issue for
review 4) the admission of hearsay regarding an anonymous tip was a reversible error and Moore
was denied effective assistance of counsel when his trial counsel failed to preserver the issue for
review 5) the prosecutor misstated the instruction on identification testimony in his closing
argument and accused Moore’s lawyer of trying to “hoodwink” the jury 6) the admission of
Bush’s obituary was reversible error and Moore was denied effective assistance of counsel when
his lawyer failed to object and preserve the issue for review and 7) the statute which governed
good-time credit allotment was passed in violation of the Hlinois constitution. Moore did not
prevail on direct appeal. He then filed a petition for leave to appeal to the Illinois Supreme

Court; it was denied on October 6, 1999.

-6-



Because the state court opted not to address Petitioner’s ineffective assistance of counsel
claim, this Court will review the claim under §2254(a) rather than §2254(d). See Aleman, 320
F.3d at 690 (“If the state court’s opinion was unreasonable~or if the state judiciary did not
address the constitutional claim, despite an opportunity to do so~then §2254(d) no longer
applies...it is §2254(a) that sets the standard.”(emphasis in original)). The text of §2254(a)
states that a court “shall entertain an application for a writ of habeas corpus...only on the ground
that [the petitioner] is in custody in violation of the Constitution or law or treaties of the United
States.” 28 U.S.C. §2254(a). In the Seventh Circuit, a determination of whether a prisoner’s
custody violations the Constitution, laws, or treaties of the United States “depends, first, on
whether all substantive rules have been respected (the merit of the claim) and, second, on
whether any error caused the custody.” Aleman, 320 F.3d at 690 (emphasis in original). The
reviewing court “may take up issues in whatever sequence seems best, given the nature of the
parties’ arguments...” /d. at 691. “[M]ost of the time, this choice depends on prudence, rather
than obligation.” Jd. at 691.

This Court finds it prudent to begin by reviewing the merits of Moore’s ineffective
assistance of counsel claim. When reviewing an ineffective assistance of counsel claim, this

Court uses the two-pronged test set out in Strickland v. Washington, 466 U.S. 668 (1984). First,

°The Respondent claims that because the Illinois Appellate court opted to determine that
plain error had not occurred as a result of the prosecutor’s failure to present promised witnesses,
it “actually had to determine the underlying [ineffective assistance of counsel claim] in order to
determine if there was ‘plain error.”” The Seventh Circuit has noted, however, that a state court's
analysis of plain error is not equivalent to a judgment on the merits of a claim. See, e.g.,
Miranda y. Liebach, 394 F.3d 984, 992 (7" Cir. 2005) (“As we have previously recognized, an
Illinois court does not reach the merits of a claim simply by reviewing it for plain error. See, e.g.,
Neal v. Gramley, 99 F.3d 841, 844 (7" Cir. 1996); see also, Rodriguez v. McAdory, 318 F.3d
733, 735 (7" Cir. 2003)(coll. cases).”).

-9-



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATE OF AMERICA ex rel. )
MELVIN MOORE )
Petitioner y
) No. 02 C5865
v. y
) HONORABLE DAVID H. COAR
BLAIR J. LEIBACH )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Before this court is the 28 U.S.C §2254 petition for the writ of habeas corpus filed by

Melvin Moore (“Moore” or “Petitioner’’). For the reasons stated below, this petition is DENIED.
Moore’s motion for status is DENIED as MOOT. All other motions are MOOT and
TERMINATED. This case is CLOSED.

Factual and Procedural Background!

On November 1, 1996, a Circuit Court of Cook County jury found Moore guilty of first
degree murder and attempted armed robbery for the murder and attempted robbery of Willie
Bush.

The trial began with the prosecutor's promise, in his opening statement, that he would

present multiple eyewitnesses who would testify to seeing Moore at the crime scene.

' Unless rebutted by clear and convincing evidence, findings of fact made by the state
courts in this case are presumed to be correct. See Foster v. Schomig, 223 F.3d 626, 631 (7"
Cir. 2000).

-1-



Moore argues that the trial court erred, on the basis of Illinois law, when it decided to
admit Bush’s obituary into evidence. As an initial matter, the Seventh Circuit has stated that
“state court evidentiary errors do not normally entitle a defendant to habeas relief.” Anderson v.
Sternes, 243 F.3d 1049, 1053 (7" Cir. 2000). Habeas relief is appropriate only when the
erroneous evidentiary rulings were “so prejudicial that [they] compromise[d] the petitioner’s due
process right to a fundamentally fair trial.” /d.

Even if the trial court did err in admitting the obituary, Moore has not shown that the
decision to admit the obituary was “an error of such magnitude that it took on a constitutional
dimension.” See Howard v, O'Sullivan, 185 F.3d 721, 723 (7" Cir. 1999). The reference to the
obituary was brief and isolated. The prosecutor did not indicate that the obituary was integral to
a finding of guilt, nor did use the obituary as a basis to elicit testimony regarding the impact of
Bush’s death on his family.

In addition, in order to grant relief on an erroneous evidentiary hearing, the court must be
convinced that the alleged error must have produced “a significant likelihood that an innocent
person has been convicted." Anderson, 243 F.3d at 1053. As the Illinois Appellate Court noted,
such was not the case. This Court concludes, based upon a review of the record, that there is no
significant likelihood that Moore is innocent of the crimes for which he was convicted. Strong
eyewitness testimony—and not a fleeting reference to Bush’s obituary—led to Moore’s conviction.
In the face of the record, no rational person could believe that the jury was so swayed by the
admission of the obituary that it rushed to convict an innocent man. See Howard, 185 F.3d at
723-24 (7" Cir. 1999) (citations omitted). Consequently, his due process claim as it relates to the

admission of the obituary must be rejected.

-12-



course, that would have been obvious to anyone sitting in the jury box. As for the anonymous
tip, the judge delivered an adequate curative instruction. In addition, there is a possibility that
objecting to the anonymous tip and the obituary would have drawn attention to those issues,
which counsel may not have wanted to do. Finally, even if defense counsel had acted as Moore
believes he should have, the jury still would have been presented with the unwavering testimony
of Sims. Given that Moore has failed to prove sufficient prejudice, his ineffective assistance of
counsel claim must fail. Moore fails the first part of the Seventh Circuit’s test under §2254(a),
and therefore is not entitled to habeas relief?

Moore argues that he was denied due process and a fair trial. He claims the trial court
erred when it allowed the prosecution to enter the decedent’s obituary into the evidence. He also
claims that the prosecutor committed prosecutorial misconduct by misleading the jury by
promising to present multiple eyewitnesses who would place Moore at the scene of the crime and
then only presenting one witness. In addition, he contends he was denied due process when the

prosecutor gave an erroneous interpretation of a jury instruction during closing arguments.

> A separate review of whether the error caused custody is unnecessary in this case. As
the Supreme Court noted when confronted with an analogous situation in Kyles v. Whitley,
“[O]nce a reviewing court applying Bagley has found constitutional error there is no need for
further harmless-error review. Assuming arguendo, that a harmless-error enquiry were to apply,
a Bagley error could not be treated as harmless, since ‘a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
different’ ...necessarily entails the conclusion that the suppression must have had ‘substantial and
injurious effect or influence in determining the jury’s verdict.’” Kyle v. Whitley, 514 U.S. 419,
435 (1995)(citation omitted). In its analysis, the Supreme Court noted, “{I]t is unnecessary to
add a separate layer of harmless-error analysis to an evaluation of whether a petitioner in a
habeas case has presented a constitutionally significant claim for ineffective assistance of
counsel.” /d. at 436, fn. 9, citing Hill v. Lockhart, 28 F.3d 832, 839 (8° Cir. 1994). In light of
these cases, this Court determines that it is appropriate to conclude its analysis of Petitioner’s
ineffective assistance of counsel claim with a finding that Petitioner did not suffer prejudice such
that he is entitled to relief under Strickland.

-ll-



or, (3) based on an unreasonable interpretation of the facts in light of the evidence presented in
the state-court proceedings. 28 U.S.C. §2254(d).

In cases where the state court opinion was unreasonable-or in cases where the state
Judiciary failed to address a constitutional claim despite an opportunity to do so—§2254(d) is no
longer the relevant standard. See Aleman v. Sternes, 320 F.3d 687, 690 (7" Cir. 2003). Instead,
“it is §2254(a), not §2254(d), that sets the standard: the court issues ‘a writ of habeas corpus on
behalf of a person in custody pursuant to the judgement of a State court only on the ground that
he is in custody in violation of the Constitution or laws or treaties of the United States.” Jd.

Discussion

Given that both sides agree that Moore has exhausted his remedies in state court and has
not procedurally defaulted any of his claims, this Court will review this case on its merits.
Moore’s pro se petition, construed generously, is based on two different types of claims. First, he
argues that he was denied effective assistance of counsel. Second, he argues that he was denied
due process and a fair trial.

Moore raises his ineffective assistance of counsel claim based on three different problems
he sees with his trial counsel's conduct. First, he claims counsel was ineffective for failing to
object to the fact that the prosecutor’s opening statement promised a number of witnesses would
place Moore at the murder scene when only one witness was actually presented at trial. Second,
he claims his counsel was ineffective for failing to object to hearsay testimony related to a
anonymous police tip identifying him and two others as perpetrators of the crime. Third, he
claims his counsel was ineffective for failing to object to the admission of the murder victim’s

obituary.



and then went back into house. After about a half-hour, while still inside his house, he heard a
sound like a firecracker and saw Bush lying on the sidewalk.

Lewanda Jones testified that she looked out her window and saw a woman and two men
talking to Bush at about 3 p.m. Two or three minutes later, she heard a gunshot and looked out
her window again. This time, she saw the men standing over Bush. One, a man with braids, was
looking for what she assumed was money on the victim’s person. The other stood by and
watched. Lewanda Jones identified the man with braids as Moore’s co-defendant, Timothy
White, during a line up. She said she did not get a “good look” at the face of the second male,
who was wearing a cap ora hat. She did not recognize anyone from a second group of
photographs the police showed her.

Craig Witheral testified that he saw a woman and two men named T-Dog and Tim Bud
ask Bush for money. He said that he went into his house, and then heard a sound like
firecrackers ten or fifteen minutes later. Wen he looked outside, he did not see anything.
Witheral identified a man other than Moore as Tim Bud during a lineup at the police station a
few days later. On cross-examination, he stated that he did not see anyone shoot Bush or
approach Bush, did not see anyone go through Bush’s pockets, and was in the house for ten to
fifteen minutes before the shooting.

Detective Munoz testified that he interviewed Sims after the shooting. He said Sims
described one of the two men as five foot six or five foot seven, one hundred and thirty pounds,
and dressed in a red t-shirt and black shorts. He did not recall being informed that Sims had seen

Moore many times before the shooting.



citing Mitchell v. Esparza, 540 U.S, 12, 15-16 (2003)(per curiam); Early v. Packer, 537 U.S. 3,

8, (2002)(per curiam). A state court finding no substantial prejudice resulted from a prosecutor’s
comment is in accordance with the determination that the comment did not so infect the trial with
unfairness as to make the resulting conviction a denial of due process.

Moore also contends that he is entitled to habeas relief because the prosecutor misstated
the applicable law as to how the jury should evaluate the witness identification testimony. The
Illinois Appellate court began its analysis by noting that in Manson v. Brathwaite, 432 U.S. 98,
113-114 (1977), the Supreme Court explained that reliability of an identification should be
judged by a totality of the circumstances and by the factors set out in Neil v. Biggers, 409 U.S.
188 (1972). The Biggers factors are “the opportunity the witness had to view the offender at the
time of the offense, the witness’s degree of attention at the time of the offense, the witnesses
earlier description of the offender, the level of certainty shown by the witness when confronting
the defendant, and the length of time between the offense and the identification confrontation.”
Manson, 432 U.S. at 114. The specific jury instruction tendered to the jury was a version of the
test set out by the Manson court.’

The Illinois Appellate court determined that the prosecutor told the jury that it only
needed to review one of the Biggers factors when determining witness reliability. The court then
concluded that the prosecutor’s interpretation was erroneous and noted that it was not aware of
any case law stating that only one factor needed to be present. Instead, the state court interpreted
Manson to stand for the proposition that an identification should be deemed reliable if, after

considering all the factors, “it is found that, based upon whatever of those factors are present, the

“ Moore does not take issue with the actual instruction presented to the jury.

-15-



477 U.S. 168 (1986). In this case, the prosecutor did misstate the law. That conduct did not,

however, implicate a specific Bill of Rights provision. The statement was not an invited
response to the arguments of defense counsel. After the defense objected to her statement, she
changed direction and argued that all five factors were present.

Defense counsel used the opportunity for rebuttal to counter the prosecutor’s earlier
statement that the jury could find an identification reliable on the basis of one factor: he advised
the jury that it had to take all the factors into account. The trial court advised the jury that the
instruction would indicate all the factors to be taken into account. The instruction included all
five factors and stated that the jury was to consider all the facts and circumstances in the
evidence.

Moreover, the jury heard testimony from Sims that indicated that he was a reliable
witness. He testified that his view of Moore before the shooting-from a vantage point of
approximately 50 feet-was unobstructed. While he did not see Moore shoot Bush, he did see
Moore point a gun at Bush. When the police arrived at the scene of the shooting, Sims gave
them a detailed description of Moore. Five days later, he identified Moore in a photo array.
Almost a month later, he identified Moore in a line-up. Officer Whalen testified that Sims was
confident of the identification in both instances. See Rodriguez v. Peters, 63 F.3d 546, 557 (nine
month delay between murder and in-court identification of defendant not so long that
identification must be deemed unreliable).

The state court felt that Sims’ testimony was reliable and that the evidence was sufficient
to support a conviction, despite the prosecutor’s misstatement. After viewing the comment in the

context of the entire trial, this Court agrees and concludes that it was not so inflammatory and

-17-



Sims was more confident in his identification of Moore. On September 14, he viewed an
array of photographs and identified Moore as the man who pointed the gun at Bush. He viewed a
lineup on October 8, 1995 and again positively identified Moore.

Detective William Whalen testified during direct examination that Sims identified Moore
while viewing a set of five photographs and during a line-up. Whalen said that in both instances,
Sims had indicated he was positive of the identification. Whalen also testified that his partner
Detective Munoz received a phone call at the police station on the day of the shooting that linked
Moore with the shooting. On cross examination, Whalen testified that he was told during the
course of his investigation that two men and one women were in the lot immediately before the
shooting and that the men were identified by their nicknames of T-Dog and Tim Bud. He
testified that Moore did not go by either of those nicknames.

On redirect, Whalen testified that an anonymous tipster told Munoz that Moore, T-Dog,
and Tim Bud were involved in Bush’s shooting. Moore’s trial counsel did not object to the
statements about the tip.

Bush’s brother, Lucious Williams, also testified at trial. He said he saw his brother alive
on September 9, 1995, and identified a picture of Bush on the cover of Bush’s funeral program.
The funeral program, which included Bush’s obituary, was admitted into evidence without
objection.

Lewanda and Lawrence Jones, their son Craig Witheral, and Detective Munoz were
called as defense witnesses. Lawrence Jones testified that Bush rang his doorbell, and his son

told Bush to go away. Lawrence Jones went outside, saw Bush in the building across the street,



During the course of the trial, the prosecutor presented one witness who placed Moore at
the scene of the crime. That witness was Ronald Sims, a seventeen-year-old that had seen Moore
“plenty of times” prior to the shooting.

Shortly before the shooting, Sims was standing with his friends in a neighborhood play
lot. The group first noticed Willie Bush. One of Sims’ friends said that Bush was giving out
money. A few minutes later, one of Sims’ friends exclaimed, “Hey man, he’s got a gun.” Sims
turned and saw Bush and another man, who he identified at trial as Moore. Moore was pointing
a gun at Bush. Then Sims saw a third man, who he identified at trial as Timothy White, walk up
to Bush and Moore. White stationed himself behind Moore. Sims heard Moore say, “Hey, man,
give me your money.” Sims then turned and ran into an alley. A few seconds later, he heard a
gunshot from the area where Moore was standing. Sims stayed hidden until the police arrived.
He then emerged and gave the police a description of Moore and White.

Sims told the officers that he could see all of Moore’s face, that Moore was wearing a red
t-shirt and dark pants at the time of the shooting, that Moore was either five feet six inches tall or
five feet seven inches tall, and that Moore had a dark complexion and short black hair. Sims
stated that White was wearing a white t-shirt with black shorts and wore his hair in three
ponytails. Two days later, on September 11, 1995, Sims identified a picture of White as the
second man who approached Bush and Moore but told police at the time that he “wasn’t
positive.” On September 14, 1995, Sims viewed a line-up and again identified White as the
second man who approached Bush; once again, he stated that he was not positive about the

identification.

-2-



Moore also argues that the prosecutor committed prosecutorial misconduct by misleading
the jury with respect to eyewitness testimony. In the opening statement, the prosecutor promised
to present multiple eyewitnesses who would place Moore at the scene of the crime; at trial, the
prosecution only produced Sims.

In order to prove prosecutorial misconduct, a petitioner must demonstrate both that
statements made by the prosecutor were improper and that those improper statements deprived
petitioner of a fair proceeding. See Darden vy, Wainwright, 477 U.S. 168, 181 (1986). For there
to be a due process violation, the comments must have “‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.” Zd. at 181 (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). The trial is evaluated in its entirety, according to the
six factors: 1) whether the prosecutor’s statements manipulated or misstated the evidence, 2)
whether the statements implicated specific Bill of Rights provisions, 3) whether the improper
statements were an ‘invited response’ to the argument of defense counsel 4) whether the trial
court instructed the jury to disregard the improper statements 5) whether the defense had and
used the opportunity for rebuttal to counter the prosecutor’s statements and 6) the weight of
evidence against the defendant. /d. at 181-183.

The prosecutor did misstate the evidence by claiming that several eyewitnesses would
place Moore at the scene of the crime. The other Darden factors, however, lead this Court to
believe that habeas relief is unwarranted. The statement did not implicate a specific Bill of
Rights provision. The judge advised the jury that the opening arguments did not constitute
evidence. See U.S. v. Napue, 834 F.2d 1311, 1324 (7" Cir. 1990)(“We cannot, of course, know

with certainty what effect this curative instruction had upon the jury, but the presumption in our

-13-



witness had adequate opportunity to observe the accused and whether the witness is credible.”

The state court noted that the Biggers factors as listed in Manson are not disjunctive “as would
be necessary to lend credence to the prosecutor’s assertion that only one factor need be present.”

Even though it found the prosecutor’s statement to be erroneous, the Illinois Appellate
court did not hold that the statement was grounds for reversal. The court stated that it could not
conclude that the prosecutor’s argument “constituted a material factor in defendant’s conviction”
such that reversal was appropriate. The court added: “It would appear from the record that any
prejudice resulting from the prosecutor’s remark would have been minimal” because the triat
court had delivered a curative instruction.

The circumstances surrounding the prosecutor’s statement support the state court’s
determination that at one point the prosecutor led the jury to believe that as long as its review of
one factor indicated that the identification testimony was reliable, it did not need to consider the
totality of the circumstances or review the other four factors. The related conclusion that the
prosecutor erroneously instructed the jury is neither contrary to nor an unreasonable application
of federal law. This Court, like the Illinois Appellate Court, is not aware of any case law that
states that once a finder of fact is satisfied that one Biggers factor indicates the testimony was
reliable, it need not consider the other factors or engage in a review based on the totality of the
circumstances.

In addition, the Illinois Appellate court’s finding that the prosecutor’s comment did not
constitute a material factor in Moore’s conviction was neither contrary to nor an unreasonable
application of federal law. This Court does not believe that the prosecutor’s actions so infected

the trial with unfairness as to make the resulting conviction a denial of due process. See Darden,

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