adequate to support the judgment.” Page v. Frank, 343 F.3d 901, 905 (7* Cir.
2003). In order to avoid a procedural default on a claim presented in a habeas
corpus petition the petitioner must “give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete round of the State's
established appellate review process." Howard v. O'Sullivan, 185 F.3d 721, 725 (*
Cir. 1999) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

Zamora alleges in his third basis for relief that letters were improperly
admitted into evidence at trial, However, he did not assert on direct appeal in the
state courts that the admittance of the letters violated his fourth amendment rights.
Therefore, to the extent that Zamora asserts his Fourth Amendment rights were
violated in his third basis for relief his argument is procedurally defaulted.

A federal court can review defaulted claims if the petitioner “shows cause for
failure to raise them at the appropriate time and actual prejudice which resulted from
such failure” or, “[a]bsent such a showing, a defaulted claim is reviewable only if
refusal to consider it would result in a ‘fundamental miscarriage of justice. .. .’”
Rodriguez v. Scillia, 193 F.3d 913, 917 (7 Cir. 1999). Zamora has not provided a
reason why the procedurally defaulted claim was not brought at the appropriate
juncture. Nor has he shown that there would be a miscarriage of justice if we did not

consider the claim.


F.2d 384, 389 (7th Cir. 1990). Zamora has not shown that the trial judge violated a
specific constitutional right by admitting the letters and has not shown that he was
denied a fundamentally fair trial. The Illinois Appellate Court ruled that the
determination of whether to admit evidence was within the discretion of the trial
judge and Zamora has not shown that the decision is inconsistent with the law set
forth by the United States Supreme Court. We note that the evidence did appear to
be relevant in that it is evidence of Zamora’s connection to the apartment where a

scale, money, and weapon were found and near the location where the drugs were

found.
V. Police Testimony

Zamora argues that he was convicted based on perjured testimony by police
officers. The officers testified that they could not remember whether two teenagers
were taken to the apartment on the night that Zamora was arrested. Zamora’s wife
testified that the officers did so. In order to obtain habeas relief based on perjured
testimony used by the prosecutor at trial a petitioner must show: “(1) that the
prosecution indeed presented perjured testimony, (2) that the prosecution knew or
should have known of the perjury, and (3) that there is some likelihood that the false
testimony impacted the jury’s verdict.” Harding v. Walls, 300 F.3d 824, 828 (7*
Cir. 2002).

In this case Zamora has only shown that there is a possibility that there was an



Strickland, 466 U.S. at 691-92. Each and every adverse consequence resulting from
counsel’s decisions is not deemed to be prejudicial “for constitutional purposes.”
United States v. Springs, 988 F.2d 746, 749 (7 Cir. 1993).

Zamora claims that his trial counsel’s representation was ineffective because
of: 1) the failure of trial counsel to call witnesses to testify that Zamora did not live
at the searched residence, 2) advising Zamora not to testify on his own behalf, 3)
failing to file a motion to quash a search warrant, 4) the decision to not present an
opening statement to the bench, 5) advising Zamora to waive his right to a jury trial,
and 6) failing to present mitigating evidence before the sentencing phase.

Zamora claims that his trial counsel should have called witnesses to testify
that Zamora did not live at the searched residence. However, if he asserted that the
apartment was not his apartment he would have lacked standing to object to the
search of the apartment. Also, the drugs were not found in the apartment. Rather
the drugs were found in a bag that Zamora had discarded outside the apartment.
Zamora has not shown that the decision not to have him testify was anything other
than sound legal advice and a reasonable trial strategy. In regards to the failure to
file a motion to quash the warrant, the warrant did not call for a search of Zamora’s
residence. Rather it called for a search of the apartment at the specified address,
Also, as stated above, the drugs were not found in the apartment. Zamora’s trial
counsel’s decisions not to present an opening statement to the bench and to advise

Zamora not to seek a jury trial were decisions within reasonable professional


r ’s Trial Counsel was ti

Zamora presents six allegations regarding the decisions and conduct of his
trial court counsel that Zamora alleges warrant a finding that his trial counsel was
ineffective, resulting in a violation of his rights to due process and equal protection.
In order to prevail on an ineffective assistance of counsel claim a petitioner must
demonstrate that his counsel’s performance “fell below an objective standard of
reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). A
Teviewing court considering an ineffective assistance of counsel claim should be
“highly deferential” to the attorney’s judgment and should avoid the temptation to
“second-guess” the attorney. Jd at 689. The reviewing court should try to “evaluate
the conduct from counsel's perspective at the time” in question and thus avoid the
“distorting effects of hindsight.” Jd. A reviewing court “must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable
professional assistance . . .” and thus should avoid questioning decisions that involve
issues such as trial strategy. Jd. Counsel can make a “reasonable decision that
particular investigations are unnecessary . . . and need not investigate every
evidentiary possibility before choosing a defense.” Rutledge v. United States, 230
F.3d 1041, 1050 (7* Cir. 2000)(citations omitted).

In order to succeed on an ineffectiveness of assistance of counsel claim, in
addition to showing that the representation was defective, a petitioner must also

show that he was prejudiced because the “error had [an] effect on the judgment.”


Hampton v. Leibach, 347 F.3d 219, 244 (7" Cir. 2003)(stating that “a habeas
petitioner is entitled to an evidentiary hearing . . . if he has alleged facts that would
entitle him to relief and the state courts, for reasons not attributable to him denied
him a full and fair hearing to explore those facts.”)(emphasis added).

In the instant case Zamora had an opportunity to present his claim to the state
appellate court, but he did not present a sufficient record to enable the appellate
court to address his claim. Zamora argues that we should consider his claim because
his appellate counsel was ineffective, but Zamora has not shown that to be true.
Therefore, the Fourth Amendment claim involving the impropriety of the search

warrant is barred.

V. Admission of Letters into Evidence
Zamora claims that the trial judge abused his discretion when he admitted into

evidence two letters addressed to Zamora at the apartment which was the subject of
the search warrant. was admissible. Unless a petition shows that “ the admission of
the evidence violated a specific constitutional guarantee, a federal court can issue a
writ of habeas corpus on the basis of a state court evidentiary ruling only when that
ruling violated the defendant's right to due process by denying him a fundamentally
fair trial.” Milone v. Camp, 22 F.3d 693, 702 (7th Cir. 1994). Furthermore,
because a state evidentiary ruling is a matter of state law, only in rare circumstances

will it ever be used as a basis to grant a habeas petition. Haas v. Abrahamson, 910


‘Minute Order Form (0697)

United States District Court, Northern District of Dlinois

NMorMagitenteJuage | Samuel Der-Yeghiayan | Shit atdned udge

CASE NUMBER 02 C 3093 DATE 5/10/2004

CASE Omar Zamora vs. Blair Leibach

TITLE

[ln the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) ir] Filed motion of [ use listing in “Motion” box above.]
(2) ia] Brief in support of motion due___.
(3) Qo Answer brief to motion due, . Reply to answer brief due____.
(4) is} Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on setfor_ at
(6) o Pretrial conference[held/continued to] [set for/re-set for]on____—setfor__——sat_—
(2) a Trial[set for/re-set for]on____at
(8) a [Bench/Jury trial} [Hearing] held/continuedto___at
(9) Q This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to)
OOFRCP4(m) OLocal Rule 41.1 CFRCP41(a)(1) OFRCP41(a)(2).

(10) MM [Otherdocketentry] For the reasons stated on the attached memorandum opinion, the Court hereby

denies the petitioner’s petition for writ of habeas corpus. All pending dates and motions are hereby
terminated as moot. Terminating case. Enter Memorandum Opinion.

| [For further detail see order attached to the original minute order.]
No notices required, advised in open court.

())

No notices required. of noties

2

docketed,

Notices mailed by judge's staff.
Notified counse! by telephone,
Docketing to mail notices,
Mail AO 450 form. mat

MAY 1

Copy to judge/magistrate judge.

courtroom poet
deputy’s: Vie oes
initials

Date/time received in.
central Clerk's Office

yee 7

MW6



that his appeal was not in fact frivolous and without merit. He simply argues that
Anders is not good law and that as apro se litigant he should be allowed to present
his claim to this court. The Appellate Court granted the motion to withdraw and
allowed Zamora to file apro se pleading. Although Zamora has a general right to
counsel on his direct appeal, Evitts v. Lucey, 469 U.S. 387, 397 (1985), the Appellate
Court’s ruling was in accordance with Anders v. California and Zamora has not

shown that the withdrawal of his appellate counsel violated his constitutional rights,

VIL Post-Conviction Petition

Zamora also asserts as his sixth basis for habeas relief that his constitutional
tights were violated when the state court denied his post-conviction petition as
frivolous and patently without merit. He presented three arguments in his post-
conviction petition. He argued that: 1) his trial counsel was ineffective because he
did not allow Zamora to testify, 2) his trial counsel was ineffective because he
should have done more investigation and presented evidence concerning the fact that
Zamora did not live at the apartment in question, and 3) his trial counsel was
ineffective because his trial counsel failed to file a motion to quash the search
warrant. In regards to the claim that his trial counsel did not allow him to testify,
Zamora presented the argument on direct appeal and failed to make the argument in
his petition for leave to appeal to the Illinois Supreme Court. Zamora also presented

the other two arguments listed in his post-conviction petition on direct appeal. Thus,

11



inconsistency in the officers’ testimony. Zamora has not shown that the testimony
was in fact inconsistent and he has not shown that the officers committed perjury.
Even if he could show that the officers committed perjury, Zamora has not shown
that the prosecutor knew of the perjury or that the alleged perjury would have altered
the jury’s verdict. See also McFowler v, Jaimet, 349 F.3d 436, 454 (7* Cir.
2003)(stating that “[iJnconsistencies in . . . witness[’] testimony are not unusual . . .,
and normally . . . are left for the fact finder to assess.”). In the instant case the trial
judge heard the testimony of the officers and it was within his discretion to
determine how credible the testimony was and to consider any inconsistencies in the
testimony. See Murrell v. Frank, 332 F.3d 1102, 1120 (7* Cir. 2003)(indicating that
in the habeas corpus context a trial judge’s factual finding of credibility is entitled to

deference).

VI. Appellate Counsel’s Motion to Withdraw
Zamora argues that he was denied his constitutional rights when his appellate

counsel was allowed to withdraw. Zamora’s appellate counsel filed a motion to
withdraw in accordance with Anders v. California, 386 U.S. 738 (1967). Zamora’s
counsel indicated in his memorandum in support of his motion to withdraw
Zamora’s possible arguments on appeal and explained why they were without merit.
Respondents argue that his appellate counsel followed the procedure for withdrawal

detailed in Anders and Zamora has not indicated otherwise. Nor has Zamora shown

10



discretion. Finally, Zamora’s assertion that his trial counsel failed to present

mitigating evidence at the sentencing phase is unsupported and without merit.

Tl ether the Search W. t roperly Issu

Zamora claims that he was denied due process, equal protection, and the right
to be free from illegal search and seizure because of the improper search warrant.
However, “where the State has provided an opportunity for full and fair litigation of
a Fourth Amendment claim, a state prisoner may not be granted federal habeas
corpus relief on the ground that evidence obtained in an unconstitutional search or
seizure was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 494 (1976);
Cabrera v. Hinsley, 324 F.3d 527, 530 (7" Cir. 2003). A prisonder is provided a full
and fair opportunity to litigate a Fourth Amendment claim in state court if: “(1) he
has clearly informed the state court of the factual basis for that claim and has argued
that those facts constitute a violation of his fourth amendment tights and (2) the state
court has carefully and thoroughly analyzed the facts and (3) applied the proper
constitutional case law to the facts.” Hampton v. Wyant, 296 F.3d 560, 563 (7* Cir.
2002). The state court must have “looked to the appropriate body of decisional law,”
but “this must not be confused with a search for error.” Id. A plaintiff is only
denied a full and fair opportunity to be heard when there is an “egregious error . . ."
because “the state judges have closed their ears and minds to argument. . . .” Jd. at

564 (quoting Turentine v. Miller, 80 F.3d 222, 225-26 (7 Cir. 1996)). See also


when the court granted his counsel’s motion to withdraw, and 6) he was denied
equal protection and due process when the Cook County Circuit Court denied his

post-conviction petition as frivolous and patently without merit.

LEGAL STANDARD
A district court may entertain a habeas corpus petition from a “person in
custody pursuant to the judgment of a State court only on the grounds that he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. §2254(a). Pursuant to 28 U.S.C. §2254 a habeas corpus petition shall not be
granted:

on behalf of a person in custody pursuant to the judgment of a State
Court . . . unless the adjudication of the claim . . . (1) resulted ina
decision that was contrary to , or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court
of the United States; or (2) 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.”

28 U.S.C. §2254(d).

DISCUSSION
IL. Procedural Default

A federal court will not address a question of federal law presented in a
habeas corpus petition brought to contest a state court ruling if “the state decision

tests on a state procedural ground that is independent of the federal question and

3



Cook County, filed'a'motion to withdraw as counsel in accordance withAnders v.
California, 386 US. 738 (1967). In June, 1998, the Illinois Appellate Court, ina
single order, granted the motion to withdraw and affirmed Zamora’s sentence and
conviction. Zamora then filed a petition for leave to appeal to the IHinois Supreme

Court which was denied on October 6, 1998.

Pursuant to ihe Ilnois Post-Conviction Hearing Act, 725 ILCS 5/122-1,

Zamora next sought ee in the Cook County Circuit Court. The petition was

int
dH

denied as “frivolous and patently without merit” because it was barred by the
doctrines of res judicata and waiver. Further appeal to the Illinois Appellate Court
resulted in affirmation of the dismissal on September 21, 2000. Zamora filed a
petition for leave to appeal with the Illinois Supreme Court on March 28, 2001. The
court denied this petition on June 6, 2001.

On April 26, 2002, Zamora filed his petition for writ ofhabeas corpus with
this court. In his petition Zamora claims that: 1) he was denied effective assistance
of counsel at the trial court level, 2) he was denied due process, equal protection and
the right to be free from illegal search and seizure based on an allegedly improper
search warrant, 3) he was denied due process, equal protection and the right to be
free from illegal search and seizure because of two letters improperly admitted into
evidence at trial, 4) he was denied due process and equal protection because the
police officers committed perjury at trial, 5) he was denied due process, equal

protection and the right to effective assistance of counsel at the state appellate level


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

EASTERN DIVISION D 0 c KETED
UNITED STATES OF AMERICA, ex rel. ) MAY 1 2004
OMAR ZAMORA, : )
Petitioner, }
v. } No. 02 C 3093
BLAIR LEIBACH, Warden, ;
Respondent. )

MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge

This matter is before the court on Petitioner Omar Zamora’s (“Zamora”)
petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. For the following

reasons, this court denies the petition.

BACKGROUND
Following a bench trial in the Cook County, Ilinois, Circuit Court, Zamora
was convicted of possession of a controlled substance with intent to deliver. On
March 6, 1997, the court sentenced Zamora to twelve years in the Illinois
Department of Corrections. Zamora appealed the decision to the Illinois Appellate

Court, First District. During this appeal, Zamora’s counsel, the Public Defender of

1



the state court addressing his post-conviction petition properly concluded that the
claims were barred by the doctrines ofres judicata and waiver. See People v.
Stewart, 528 N.E.2d 631, 633 (Ill. 1988)(stating that “[t]he scope of post-conviction
review is limited by the doctrines ofres judicata and waiver . . .[and} [iJn essence,
post-conviction proceedings are limited to issues which have not been, and could not
have been, previously adjudicated. . .[or] [pJut another way, all issues actually
decided on direct appeal are res judicata, and all those which could have been

presented but were not are deemed waived.”).

CONCLUSION

Based on the foregoing analysis, we deny the petition for writ of habeas

corpus.

Samuel Der-Yeghiayan 2 ;

United States District Court Judge

Dated: May 10, 2004

12