1

 Donald A. Hulick is now the warden of Illinois River Correctional Center. John C.

Battles was the warden at the time this petition was filed. The Court hereby amends the case

caption accordingly.

-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.,

DARNELL CLAY,

)

)

)

Petitioner, )

) No. 02 C 8370

v. )

)

DONALD A. HULICK, Warden, Illinois

River Correctional Center,

)

)

 HONORABLE DAVID H. COAR

 )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner Darnell Clay’s motion to vacate his sentence pursuant to 28 U.S.C. § 2254 is

before this Court.1 For the following reasons, the motion is denied.

I. BACKGROUND

A. Relevant Facts

On January 29, 1998, following a jury trial in Cook County Circuit Court, Clay was

convicted of two counts of aggravated kidnapping, and one count each of aggravated vehicular

hijacking and armed violence. He was sentenced to concurrent prison terms of twenty-five years

on each of the latter counts and fifteen years on the aggravated kidnapping counts. Briefly, Clay

was convicted of kidnapping Shalonda Brown at gunpoint and forcing her into the back of her

own car. At trial, Brown testified that Clay’s co-defendant Willie McFadden forced to her call
-2-

her boyfriend, Gerald Walters, and demand $100,000 for her safe release. McFadden, Clay, and

their third co-defendant Alvin Mitchell then allegedly took Brown to a motel on Chicago’s west

side. McFadden and Mitchell were arrested at the scene of the ransom pick-up. Clay was arrested

at the hotel on the night of March 22, 1996. 

B. Procedural History 

On direct appeal, Clay, who was represented by the public defender, argued that his right

to a fair trial was violated because the prosecutor improperly assumed facts not in evidence in his

closing argument to the jury. Specifically, Clay argued that the prosecution improperly presented

a theory to the jury about what happened to the gun allegedly used during the kidnapping. No

gun was recovered from the crime scene and Clay denied possessing or using a gun. In fact, no

witness testified about what happened to the alleged gun. During his closing argument, however,

the prosecutor discussed the gun and Brown’s allegations that she was kidnapped at gunpoint

and threatened with the gun during the course of her confinement. Clay contended that this

argument overreached the evidence and assumed facts not in evidence. The Illinois Appellate

Court disagreed, finding that the prosecutor’s argument represented “legitimate inferences drawn

from the facts and circumstances proved” and thus were permitted. People v. Clay, No. 98-1252,

slip op., at 1 (Ill. App. Ct. Jun. 30, 1999) (citing People v. Shum, 512 N.E.2d 1183, 1193-94 (Ill.

1987)).

Clay filed a petition for leave to appeal to the Illinois Supreme Court on August 6, 1999,

re-alleging that the prosecutor improperly assumed facts not in evidence relating to the gun in his

closing argument. The Illinois Supreme Court issued a one-sentence denial of Clay’s petition on

October 6, 1999.
-3-

Shortly thereafter, on November 28, 1999, Clay filed a pro se post-conviction petition,

claiming violations of his Sixth and Fourteenth Amendment rights and of his rights under Article

1, section 8 of the Illinois Constitution of 1970 because of ineffective assistance of counsel. In

particular, Clay asserted that his counsel was ineffective because she failed to present a defense

theory he advocated, and failed to interview and call an alibi witness, Cecil Hines, and one of

Clay’s co-defendants, Willie McFadden, to testify on his behalf. The trial court found that Clay

could have raised his claims on direct appeal but had not done so. Despite this, the trial court

reviewed Clay’s ineffective assistance of counsel claim and found it without merit on February

23, 2000.

Clay appealed to the Illinois Appellate Court on March 23, 2001, alleging that the trial

court erred in not finding his attorney’s failure to call an alibi witness ineffective assistance of

counsel, and that the trial court erred in sentencing because the sentence for armed violence

based on ransom was unconstitutionally disproportionate to aggravated kidnapping with a

handgun. The State responded, Clay replied, and the State filed a supplemental brief. The Illinois

Appellate Court found that Clay did not satisfy the two-prong test for ineffective assistance of

counsel under Strickland v. Washington, 466 U.S. 668, 687 (1984). After stating that “the

decision whether to call a witness is considered a matter of trial strategy,” People v. Clay, No.

00-1222, slip op., at 6 (Ill. App. Ct. May 24, 2002) (citing People v. Kidd, 175 Ill.2d 1, 45

(1997)), the appeals court noted that defendant stated in his motion for a new trial that he had

“supplied information” about his alibi witness to his trial attorney. The appeals court found it

reasonable to infer that “counsel knew the substance of Hines’ testimony and decided not to call

him,” even though Hines stated that Clay’s attorney never interviewed him. People v. Clay, No.
-4-

00-1222, slip op. at 7. The decision not to call a Hines was thus a trial tactic and did not support

a claim of ineffective assistance of counsel. The appeals court, however, vacated Clay’s

sentences for the two counts of aggravated kidnapping because they violated the lesser-included

offense doctrine. 

On June 2, 2002, Clay filed a petition for leave to appeal to the Illinois Supreme Court,

arguing that the lower courts erred in determining that his trial attorney’s failure to call an alibi

witness was trial strategy when she had never interviewed the witness and when the witness’

testimony would have changed the outcome of the trial; and that the appellate court improperly

inferred that Clay’s trial attorney knew what his alibi witness would testify to because Clay had

supplied only Hines’ name and address to his attorney. The Illinois Supreme Court denied Clay’s

petition for leave to appeal on October 2, 2002. 

C. Habeas Petition

Clay filed a timely petition for habeas corpus relief in this Court on November 18, 2002.

His petition asserts five claims for relief, four of which allege ineffective assistance of counsel

by his trial attorney: 1) for failing to contradict the prosecution’s case or seek out exculpatory

evidence; 2) for failing to interview and call a defense alibi witness, Cecil Hines, who would

have corroborated Clay’s defense theory and testimony; 3) for not defending Clay against two

aggravated vehicular hijacking counts, thereby denying him a fair trial; 4) for failing to

contradict photographic evidence the State presented to the jury of an alleged injury the

kidnapping victim sustained to her knee during the crime. The fifth claim asserted is that the

state courts erred in applying the presumption to an attorney’s failure to call a witness was based

on trial strategy. On February 10, 2003, Clay filed a motion for an evidentiary hearing with this
-5-

Court, noting that the State had not yet answered his petition. The State responded to Clay’s

petition on March 23, 2003, asserting that claims three and four and portions of claim one were

procedurally defaulted because he did not properly raise them before the state courts. This Court

denied Clay’s motion for an evidentiary hearing on August 25, 2003.

D. Motion for Leave to Amend

On November 16, 2005, Clay filed a motion for leave to amend his petition for writ of

habeas corpus. Clay requested leave to strike his third and fourth claims (aggravated vehicular

hijacking and photographic evidence) and sought to re-present the grounds for claim one so as to

avoid any procedural default concerns.

II. STANDARD OF REVIEW

Section 2254 empowers federal district courts to hear petitions for a writ of habeas

corpus on behalf of a person in state custody on the ground that he or she is in custody in

violation of the Constitution, treaties, or laws of the United States. 28 U.S.C. § 2254(a) (1996);

see Wainwright v. Sykes, 433 U.S. 72, 77 (1977). A federal court may only consider the merits of

a writ of habeas corpus after the petitioner has (1) exhausted all available state court remedies;

and (2) first presented any federal claim in state court. See 28 U.S.C. § 2254(c) (1996); Coleman

v. Thompson, 501 U.S. 722, 731 (1991); Jones v. Washington, 15 F.3d 671, 674 (7th Cir. 1994).

Any claim that has not been exhausted in the available state courts will be considered defaulted

and therefore procedurally barred. 

 A federal court will not grant relief on claims that have been decided on the merits by

state courts unless the state court’s decision “was contrary to, or involved an unreasonable

application of clearly established federal law, as determined by the Supreme Court of the United
-6-

States,” 28 U.S.C. § 2254(d)(1) (1996), or “was based on an unreasonable determination of the

facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(2)

(1996).

III. ANALYSIS

As an initial matter, this Court must address Clay’s motion for leave to amend his habeas

petition. Because the federal habeas statute and its accompanying rules do not address motions to

amend, courts look to Rule 15 of the Federal Rules of Civil Procedure. See, e.g., Newell v.

Hanks, 283 F.3d 827, 834-35 (7th Cir. 2002); see also Johnson v. United States, 196 F.3d 802,

805 (7th Cir. 1999) (applying Rule 15 in § 2255 case). Rule 15(a) specifies that a party seeking to

amend a pleading after a response has been filed must seek leave of court. It further states that

“leave shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). In his motion to

amend, Clay seeks to strike certain of the claims in his original petition and replead one other

claim so as to clarify that it is not procedurally defaulted. Further, because this amendment

makes no substantive change to the remaining claims in the petition, but essentially grounds

claim one on fats identical to those asserted for claims two and five, the amendment does not

prejudice the State. Further, this Court finds that the claim asserted “arose out of the conduct,

transaction or occurrence set forth or attempted to be set forth in the original pleading” and

therefore relates back to the date of the original pleading. Fed. R. Civ. P. 15(c)(2). Clay’s motion

to amend is GRANTED to the extent that the factual basis for claim one was also presented to

the state courts.

The remaining claims before this Court are amended claim one, and claims two and five,

all of which allege ineffective assistance of counsel. 
2

 Clay additionally argues that his attorney failed to argue that the state did not recover a

black skull cap allegedly used to cover Brown’s head during the kidnapping from the hotel room

where the FBI discovered Clay and Brown, but rather that the cap belonged to Clay, who had

been wearing it, and was taken from him for inventory at the police station after his arrest. He

also argues that his attorney should have introduced information about palm and fingerprints

taken from Clay and his co-defendants, ostensibly to compare with prints found in Brown’s car.

The State did not introduce palm or fingerprint evidence at trial. In addition, Clay argued that his

attorney should have sought to impeach Brown with inconsistencies in her story. But the record

shows that the defense did cross-examine Brown about her story and numerous contradictions.

-7-

A. Amended Claim One

Clay contends that his constitutional rights were violated when his attorney failed to

“contradict” the prosecution’s case against him and failed to seek out exculpatory evidence.

Essentially, he argues that his attorney refused to proceed on Clay’s theory of the defense, which

was that Sharonda Brown conspired with Willie McFadden to fake her kidnapping in order to

extort money from her boyfriend. Clay alleged that Brown was motivated to engage in such a

scheme because she was angry that her boyfriend refused to stop seeing another woman. In his

initial habeas petition, Clay presented facts relating to the trial that he did not present to the state

courts. This is not allowed under the federal habeas statute. A petitioner must fully and fairly

present each of his habeas corpus claims to the state courts, and must clearly state both the

federal law and the facts supporting the claim. See Momient-El v. DeTella, 118 F.3d 535, 537 (7th

Cir. 1997). In his state court petitions, Clay argued that his defense counsel was ineffective

because she failed to call an alibi witness, not that she had failed to seek out “exculpatory

evidence” or that she refused to try the case according to his theory of the defense.2 Insofar as

Clay did not present the factual basis for his claim to the state courts, his claim is procedurally

defaulted here and this Court cannot reach it. But in his amended version of claim one, Clay

focuses only on his theory that Hines’ testimony would have shown that Brown was a willing
3

 The timing was important because Brown alleged that she was kidnapped at

approximately 10:50 p.m. on March 22, 1996.

-8-

participant in the scheme to extort money from Walters. He argues that if his attorney had called

Hines as an alibi witness, the jury would have known defendant’s theory. This is so closely

intertwined with Clay’s claims two and five that this Court will consider them all together.

B. Ineffective Assistance of Counsel

Clay alleges in his claim two that the state courts erred in finding that his trial attorney’s

failure to call an alibi witness was a trial strategy decision when his attorney had not interviewed

the witness. Clay’s claim five is that settled law states that the presumption that an attorney’s

failure to call a witness was trial strategy does not apply when the attorney has not interviewed

the witness. These claims were first raised in Clay’s post-conviction petition, which included an

affidavit from Cecil Hines, averring that he was present in court on October 22, 1997, December

8, 1997, and January 26 and 27, 1998, ready to testify on Clay’s behalf. Hines further averred

that Clay’s trial attorney, Maura Shapiro, subpoenaed him but never interviewed him. He was

never called to testify. According to Hines’ affidavit, he would have testified that he had an inperson conversation with Clay at about 10:30 p.m. on March 22, 1996, at Rayburn’s Gas Station

at Roosevelt Road and Kostner Avenue, Chicago, Illinois. Hines further would have testified that

Clay was with another man in a white van, and that Hines left the location at about 10:30 p.m.

He would have stated that he was familiar with the area and would have given his opinion that it

takes easily forty-five minutes to an hour to drive from Rayburn’s to 7945 S. Homan Street, the

site of the kidnapping.3
4

 Clay does not make any argument about McFadden. 

-9-

Clay’s post-conviction petition also included an affidavit from Willie McFadden, one of

Clay’s co-defendants. McFadden averred that he was willing to testify on Clay’s behalf and that

he would have stated that Shalonda Brown, the kidnapping victim, conspired with McFadden to

trick her boyfriend, Gerald Walters, out of money. McFadden also would have testified that Clay

never kidnapped Brown, held her against her will, or drove her car. Instead, McFadden averred

that Brown met him and Clay at Rayburn’s Gas Station on Chicago’s west side at about 11:30

p.m. on March 22, 1996. In addition, McFadden would have stated that Clay had a conversation

with Hines at that location shortly after 10:00 p.m. on that date. Clay contends that because his

trial attorney failed to interview Hines,4

 his attorney provided ineffective assistance to him. 

The State responds that the state courts properly applied the Strickland test to Clay’s

post-conviction petition claim. Strickland v. Washington, 466 U.S. 668, 687 (1984). In its

analysis, the trial court found that Clay failed to show that his attorney’s representation fell

below an objective standard of reasonableness or that her performance was prejudicial to the

defense. Strickland, 466 U.S. at 687. The fact that a different attorney, with the benefit of

hindsight, might have made a different decision was not enough to establish ineffective

assistance of counsel. People v. Clay, No. 96-CR-10520, slip op. at 7 (Cook Co. Cir. Ct. Feb. 23,

2000) (citing People v. Trotter, 701 N.E.2d 272, 275 (Ill. App. Ct. 1998)). Although an

attorney’s failure to call a defense witness may support an ineffectiveness claim, the petitioner

must not only produce affidavits from the individuals who would have testified but must also

explain the significance of their testimony. People v. Dean, 589 N.E.2d 888, 890 (Ill. App. Ct.

1992). After reviewing the Hines affidavit, the trial court found that Clay had failed to produce
-10-

sufficient evidence to overcome the presumption that his attorney’s failure to call Hines was a

strategic trial decision. 

In his appeal of the trial court’s denial of his post-conviction petition, Clay alleged that

the lower court erred when it found that his attorney’s decision not to call Hines was a matter of

trial strategy. When an attorney has not had contact with the witness and does not know the

content of the witness’ potential testimony, she cannot make a strategic decision. (Pet’r’s Br. to

Ill. App. Ct., at 9) (citing People v. Truly, 595 N.E.2d 1230, 1234 (Ill. App. Ct. 1992)). The State

argued that Petitioner’s pro se motion for a new trial stated that his trial attorney “led [Clay] to

believe that Mr. Cecil Hines would be testifying based on information supplied to Defense

Counsel concerning Defendants [sic] alibi.” (Def.’s pro se Mtn. for New Trial, at 1). Thus, Truly

did not apply. Clay’s claim was governed instead by People v. Flores, 538 N.E.2d 431, 488 (Ill.

1989), which stated that a decision about whether to call a particular witness is a matter of trial

strategy and not sufficient to show ineffective assistance of counsel. The Illinois Appellate Court

found that Clay’s attorney was not ineffective in her defense of Clay. Clay took the stand at trial

and testified to his theory of the case, which was that Shalonda Brown was a willing participant

in a “con” to fake her own kidnapping and get money from her boyfriend, who was “messing

with” another woman. The Illinois Appellate Court set out the trial testimony from Brown,

Walters, the law enforcement officials who investigated the case, and Clay. It then went on to

note the language from Clay’s pro se motion for a new trial that he had “supplied information” to

his attorney about Hines, and concluded that it was a fair inference that the attorney knew the

substance of Hines’ testimony when she decided not to call him. Thus, the failure to call Hines

was a trial tactic and did not support an ineffective assistance of counsel claim. 
-11-

To be successful on his petition for habeas corpus, Clay must show that the state court

decision was either “contrary to” or was an “unreasonable application of” United State Supreme

Court precedent, or was based on an unreasonable determination of facts. 28 U.S.C. §

2254(d)(1)-(2). Clay attached his pro se motion for a new trial to his habeas petition, arguing that

it shows he only provided Hines’ name and address to his trial attorney. But the motion says that

Clay believed “Hines would be testifying based on information supplied to Defense Counsel

concerning Defendants alibi.” It further states that Clay’s trial attorney refused “Defendant’s

repeated requests to call Mr. Hines as a[n] alibi witness despite Mr. Hines’ presence in the

courtroom during trial.” (Pet’n for Habeas Corpus, Ex. 13) This Court finds that the Illinois

courts correctly identified and applied the Strickland standard. Further, the Illinois state courts

did not make an unreasonable determination of the facts when they concluded that Clay’s trial

attorney’s decision not to call Hines was a matter of trial strategy. From the record, it is

reasonable to infer that she was aware of what Hines would testify to and that she decided that

his testimony would not assist the defense. Another attorney might have decided differently, but

that does not mean that Clay’s attorney was ineffective. Clay’s petition is denied as to amended

claim one, claim two, and claim five.
-12-

Conclusion

For the foregoing reasons, Clay’s Petition for a Writ of Habeas Corpus is DENIED. This case

is closed.

Enter:

/s/ David H. Coar

_____________________________________

David H. Coar

United States District Judge

Dated: March 22, 2006