unless a specific constitutional guarantee has been violated. . . .”). The record does
not demonstrate that the state court’s decision to permit the introduction of the other
crimes evidence rises to the level of a violation of Edwards’ constitutional rights.
Thus, Edwards’ claim as to the trial court’s improperly allowing in other crimes

evidence fails.

C. Denial of Motion to Suppress

Edwards claims that the trial court improperly denied his motion to suppress
statements, which he alleges were made in violation of hisMiranda rights. The
Illinois Appellate Court carefully reviewed the record on this issue and determined
that Edwards’ Miranda rights were not violated. People v. Edwards, 301 Ill. App.
3d 966, 979 (Ill. App. 2nd Dist., 1998). Specifically, the court found that Edwards
never invoked his right to silence. Jd. In making the determination the appellate
court conducted a thorough review of the record, which included the following:

[Edwards] was arrested around 7:55 p.m. on January 4, 1996 in connection
with an armed robbery at the Roberts Roost Motel. Around 10:17 that
evening, defendant was interviewed by Officers Mark Tkadletz and Mike
Quinn. Quinn read defendant his Miranda rights and defendant then read and
signed a written waiver of rights. The interview of defendant continued on and
off until around midnight the next day, January 5, 1996. During the day of
January 5, 1996, defendant was questioned by Officers Artis Yancey and Luis
Marquez and in the evening was questioned by Officers Tkadletz and Quinn.
The interrogation of defendant, however, was not continuous and included
breaks for meals, the bathroom, a nap in the interview room, and several hours
of sleep in a cell. There also were times during the interview process where
defendant was left alone in the interview room while the officers tried to
confirm details of the crimes to which defendant had confessed and while the

13



DISCUSSION
I. Armed Robbery Conviction (96 CF 42)(02 C 1659)

A. Violation of Right to Remain Silent

Edwards argues that his right to remain silent was violated when the trial
court admitted Edwards’ two statements made to the police indicating that he did not
want to talk about the location of the weapon. 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 rests upon a state procedural ground that is
independent of the federal question and 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 (7° Cir. 1999) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999)).

Edwards failed to raise the issue of the denial of his right to remain silent in
his post-trial motion thereby waiving the argument. The state appellate court
reviewed the issue to determine if the plain error exception to the waiver rule was
applicable. The state appellate court found that the evidence against Edwards was

overwhelming and that any error made by the trial court did not amount to grave


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

corpus.

Sot > Hon

Samuel Der-Yeghiayan
United States District Court Judge

Dated: March 30, 2004

17


Evidence is material to the defense if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding
would have been different. A ‘reasonable probability’ is that sufficient to
undermine confidence in the outcome. The materiality standard is not met by
the mere possibility that an item of undisclosed information might have helped
the defense, or might have affected the outcome of the trial

107 F.3d 499, 509 (7th Cir. 1997)(internal citations omitted). Thus, a prosecutor is
not required “to divulge every possible shred of evidence that could conceivably
benefit the defendant.” Jd.

Edwards claims that the state failed to reveal that in the other murder case
another person confessed to the murder and that there was not enough fingerprint
evidence to link him to the crime. Edwards claims this evidence would have
established his innocence. The state appellate court reviewing the instant case noted
that the confession by the other individual was an extra-judicial statement that was
not made under oath and the court found that Edwards had not shown that the
confession would be admissible evidence. The court also found that the fingerprint
evidence argument was waived since the fingerprint evidence was disclosed by the
prosecutor months before the trial and his trial counsel thus had knowledge of the
fingerprint evidence. Edwards also waived the argument by not raising it on direct
appeal. We agree with the state appellate court’s findings and find no constitutional
error.

Edwards also claims that the prosecution withheld evidence that a witness in

custody claimed that Edwards did not act alone in the homicide in the other case.



federal constitutional violation analysis. Therefore, he has procedurally defaulted on
this claim. See Rodriguez v. McAdory, 318 F.3d 733 (7th Cir. 2003) (indicating that
“the state court’s holding must ‘depend{] on a federal constitutional ruling’ in order
to open it up for habeas review.”). Further, as stated above, Edwards does not show
the requisite “cause or prejudice” requirement for an exception to an issue that has
been procedurally defaulted. Dortch v. O'Leary, 863 F.2d 1337, 1343 (7th Cir.
1988)(quoting Sotelo v. Indiana State Prison, 850 F.2d 1244, 1252 (7th Cir. 1988)).

Even if we were to determine that Edwards had not procedurally defaulted
and that the prosecution’s closing arguments were improper, the alleged violation
was harmless. A conviction should be reversed because of statement made by a
prosecutor during his closing argument only if “the remarks were so prejudicial that
the defendant was deprived of a fair trial.” United States v. Torres, 809 F.2d 429,
435 (7th Cir. 1987). If the government can demonstrate that the remarks did not
effect the outcome of the trial, then the remarks are harmless. Dortch v. O'Leary,
863 F.2d at 1344. See also United States ex rel. Garcia v. Lane, 698 F.2d 900, 903
(7th Cir. 1982)(finding that a statement by the prosecutor did not rise to the level of
a deprivation of constitutional rights because the statement was not so inflammatory
that it denied the defendant of the right to a fair trial).

In the current case, there was overwhelming evidence presented against
Edwards. For example, there were several eyewitnesses to the crime of armed

robbery, specifically, those who were actually robbed at what appeared to be at gun-


error and thus the argument was waived by Edwards. We find that the argument is
procedurally barred. We also note that even if it were not barred the pertinent
question for this habeas review would be whether or not the petitioner “shows cause
for failure to raise [it] 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).

In this case we agree with the state appellate court that the evidence against
Edwards was overwhelming. All three victims were able to identify Edwards as the
individual that broke into their home and robbed them while holding what looked
like a weapon. Edwards was apprehended a short time later under a pop-tent found

near the victim’s residence.

B. Barring of Reference to Lesser Included Offense

Edwards argues that there was a violation of his right to fundamental fairness
when the prosecution persuaded the trial court to bar defense counsel from referring
to aggravated robbery as a lesser included offense of armed robbery, but the
prosecutor was allowed to later accuse defense counsel of “flip-flopping” when
defense counsel introduced the lesser offense of aggravated robbery. First, Edwards
failed to raise this issue in constitutional terms in his appeal and the state appellate

court accordingly dealt with the claim as a state law claim and did not include any


7]

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.”
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).

Edwards has failed to show that his trial counsel acted beyond the spectrum of
reasonable professional discretion and therefore he has not shown that he received

ineffective assistance from his trial counsel.

D. Prosecution Reliance on False Evidence and Failure to Disclose

Edwards claims that the prosecutor knowingly relied upon false evidence and
failed to disclose exculpatory evidence to Edwards concerning other crimes
introduced at his armed robbery sentencing hearing and the hearing on his armed
robbery conviction. A prosecutor’s supression of “evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v.
Maryland, 373 U.S. 83, 87 (1963). In United States v. Hamilton the Seventh Circuit

explained the definition of material evidence by stating the following:


Minute Order Form (06/92)
rom (O80

Ss C7 United States District Court, Northern District of Illinois

Name of Assigned J i Sitting Judge if Oth
ao eee ate jute Samuel Der-Yeghiayan than Assigned Sudge
CASE NUMBER 02 C 1660 DATE 3/30/2004
CASE James Edwards vs. Kenneth Briley
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:

ql) o Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due____.

@) Q Answer brief to motion due. . Reply to answer briefdue__-

(4) im) Ruling/Hearingon___—ssetfor_—sat_

(5) a Status hearing{held/continued to] [set for/re-set for]on__setfor__at

(6) Q Pretrial conference[held/continued to] [set for/re-set for]on__—_esetfor_ se at_—.
(7) Oo Trial[set for/re-set for]on___at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto__at

(9) oa This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) (CLocal Rule 41.1 OFRCP41(a\(1) C1 FRCP41(a)(2).

(10) MW [Other docketentry) For the reasons stated in the attached memorandum opinion, the petitioner’s
petition for writ of habeas corpus is denied. All pending dates and motions are hereby terminated as moot.
Terminating case. Enter Memorandum Opinion.

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

No notices required. mumiber of notices

Notices mailed by judge's staff,
Notified counsel by telephone.
~ | Docketing to mail notices.

Mail AO 450 form. mane
s09 3 sic “Sl
Copy to judge/magistrate judge. Lunes ayes

courtroom ~ 4 roe? shad
MW6 deputy’s G_eG aw ieee
Date/time received in
central Clerk's Office

laws ane



supplies a reasonable probability sufficient to undermine the outcome of this case.
Nor can we say that Edwards has shown that the prosecutor’s supposed failure to
disclose the alleged exculpatory evidence would have changed the outcome in this

case.

E. Insufficient Evidence Because of Lack of Dangerous Weapon

Edwards claims that he is legally innocent of the crime of armed robbery in
another case because there is insufficient evidence that he had a dangerous weapon.
Edwards used a working cigarette lighter that looked like a gun when he committed
the armed robbery. This argument should have been raised on appeal, but it was not,
therefore, it is procedurally defaulted. O ‘Sullivan v. Boerckel, 526 U.S. 838, 839-40
(1999). As stated above, absent a showing of cause or prejudice, this court will not

address the issue. There is no showing of prejudice in this instance.

II, Reckling Murder Conviction (02 C 1660)

A. Reasonable Doubt

Edwards claims that there was insufficient evidence to convict him and he was
not proven guilty beyond a reasonable doubt. First of all, this is nothing more than a
request for a de novo appellate review of the state courts’ rulings which is not the

intended purpose of a habeas petition. Edwards is improperly asking this court to re-

1


The state appellate court found that Edwards failed to show that the statement would
be admissible and that the trustworthiness of the statement was questionable
considering the fact that the incarcerated witness was attempting to make a deal with
the government when he made the statement. We agree with the state appellate
court’s findings and find no constitutional error.

Edwards also argues that the state failed to produce clear copies of a video
tape of a bank robbery which was allowed into evidence at the murder trial and
introduced at both sentencing hearings. The state appellate court noted that the
defense counsel in that case received the video tape twelve months before the armed
robbery trial and that any challenge regarding the quality of the video tape should
have been made sooner. We agree that the argument was waived and that Edwards
has failed to show that a clearer video tape would have increased the probability that
the outcome of his trial would have been different.

Finally Edwards claims that the prosecutor “stirred the testimony of
witnesses” of an armed robber by witnesses of a Hair Crafters beauty salon robbery
so that their testimony was different from the descriptions that the witnesses gave to
the police. Edwards did not make this claim in his post-conviction petitions and
therefore the argument was waived.

In summation, in regards to the alleged failure by the prosecutor to reveal
exculpatory evidence, we agree with the Appellate Court. Upon reviewing the

record, this court cannot say that any of Edwards’ claimed exculpatory evidence

10


,
&

point. Therefore, we find that even if the claim is not procedurally defaulted the

remarks by the prosecutor in his closing arguments were harmless.

C. Ineffective Assistance by Trial Counsel- Judicial Notice

Edwards also alleges that his trial counsel in his armed robbery case was
ineffective because he requested that the trial court take judicial notice of evidence
presented at his sentencing in a previous capital murder trial, which counsel knew or
should have known contained numerous false allegations and thus invited the trial
court to consider the false evidence relating to Edwards’ other crimes.

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
reviewing 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. /d 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


that he had a dangerous weapon.

In his petition relating to the Reckling murder conviction Edwards presents
four bases for relief which are as follows: 1) Edwards was not proven guilty beyond
a reasonable doubt, 2) the trial court improperly admitted evidence at trial pertaining
to other crimes, and 3) the trial court improperly denied his motion to suppress his
statements, 4) Edwards was not linked to other crimes introduced at trial, the
prosecution failed to reveal exculpatory evidence relating to other crimes, and his
trial counsel was ineffective because he failed to challenge the false criminal

allegations against Edwards during his trial.

LEGAL STANDARD
Pursuant to 28 U.S.C. § 2254, a federal court may entertain a petition for a
writ of habeas corpus only on the ground the petitioner “is in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). If
petitioner seeks to challenge a state court decision under 28 U.S.C. § 2254, a writ of
habeas corpus is proper only if the challenged state court decision:

(1) resulted in a 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) Aleman vy. Sternes, 320 F.3d 687, 690 (7th Cir. 2003).


officers typed up defendant's statements. During the interrogation, defendant
confessed to numerous felonies, including four murders, five armed robberies,
and a burglary. The officers that questioned defendant testified that defendant
was very friendly and talkative and, after he confessed to the Roberts Roost
armed robbery, began to extensively relate details of his life and his
background, including details concerning the other crimes he had committed.
Officer Tkadletz testified that when he and Quinn interviewed him, defendant
told the officers that there were other incidents out there that he did not want
to bring up because he “didn't want to open up a can of worms” and asked the
officers if they could promise that he would not get the death penalty. The
officers said that they could not make that promise. Quinn testified that he
asked defendant if he had any knowledge about a homicide at Grand
Appliance and defendant said, “No, you're talking about death penalty stuff.”
Later, when defendant was interviewed by Officer Marquez about other
crimes he may have committed, Marquez testified that defendant said he did
not want to go in that direction because he would be opening up a can of
worms. Later, defendant said that he would be willing to tell the truth about a
particular incident if his wife told him to tell the truth. Quinn then went to
defendant's home and arranged for defendant's wife to call him. Defendant's
wife spoke with him on the telephone and told him to tell the truth, following
which defendant confessed to the murder of Fred Reckling at Grand
Appliance. Prior to trial, defendant filed a motion to suppress his statement.
The trial court denied defendant's motion, finding that defendant had not
invoked his right to silence.

Id, at 978. Based on this record and the finding that Edwards never invoked his right

to silence, the court upheld the denial of motion to suppress. Id. at 979.

Whether Edwards invoked his right to silence is a factual issue to which this

court owes deference. United States v. Mills, 122 F.3d 346, 349 n.4 (7th Cir. 1997).

The record supports the determination of the Illinois appellate court decision.

Therefore we agree with Illinois appellate court in its finding that Edwards never

invoked his right to silence and that the trial court’s denial of the motion to suppress

14


would have made any difference in his trial. Edwards also argues that the
descriptions offered by witnesses in the Hair Crafters beauty salon robbery were
inconsistent with the descriptions in police reports. However, as indicated above,
Edwards waived this issue by failing to raise it in his post-conviction petitions.

Edwards also alleges ineffective assistance of counsel because his counsel
should have challenged the other crimes evidence. The trial court determined that
Edwards’ counsel was in the difficult predicament of choosing between challenging
the confession and opening the door to the other crimes evidence. People v.
Edwards, 301 Ill. App. 3d 981. The Illinois Appellate Court agreed with the trial
court, and found that counsel’s decision was a matter of trial tactics that did not
effectively deny Edwards of right to counsel. Jd.

In this case, we agree with the Appellate Court that Edwards fails to
demonstrate that his counsel made errors so egregious that his attorney effectively
deprived Edwards of his right to counsel. Even if we found that counsel had made
errors in his representation as, Edwards alleges, we could not state that such errors
would be so significant as to be prejudicial to Edwards’ defense such that they

deprived Edwards of a fair trial.

16


his life term. Edwards filed two separate habeas petitions in the Northern District of
Illinois, each relating to one of the above mentioned convictions. On July 18, 2002
Judge Andersen, the prior judge in this case granted Edwards’ motion to consolidate
the two cases (case number: 02 C 1659-armed robbery, 02 C 1660-Reckling
Murder). In another case that is relevant to the two habeas petitions Edwards was
extradited to Ohio where he was convicted for the shooting death of an elderly
woman who Edwards stopped on a road. Edwards shot the victim and drove off in
her car leaving the victim on the side of the road.

Edwards presents four bases for relief in his petition relating to the armed
robbery conviction which are as follows: 1) there was a violation of his right to
remain silent, 2) there was a violation of his right to fundamental fairness when his
counsel was barred from referring to aggravated robbery as a lesser included offense
of armed robbery, but his counsel was later accused of “flip-flopping” when defense
counsel introduced the lesser offense of aggravated robbery, 3) that he received
ineffective assistance from his trial counsel because his counsel failed to request that
the trial court take judicial notice of evidence presented at sentencing in his murder
trial, which counsel knew or should have known contained numerous false
allegations, 4) the prosecutor knowingly relied upon false evidence and failed to
disclose exculpatory evidence to Edwards, 5) the prosecutor told witnessses to
testify diferently than their statements included in police reports, and 6) Edwards is

legally innocent of the crime of armed robbery because there is insufficient evidence


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

EASTERN DIVISION

UNITED STATES OF AMERICA, ex rel. )
JAMES LEO EDWARDS, )
)
Petitioner, )

) Consolidated Case Nos.

v } 02 C 1659 and
)
KENNETH R. BRILEY, )
)
Defendant. )
UG.
Mg
NDUM OPINI AR gs

SAMUEL DER-YEGHIAYAN, District Judge

This case is before the court on Petitioner James Leo Edwards’ (“Edwards”)
consolidated pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. For

the reasons stated below we deny the petition.

BACKGROUND
Following a jury trial Edwards was convicted of first degree murder for the
beating death of seventy-one year old Fred Reckling inside Mr. Reckling’s appliance
store. Edwards was sentenced to a term of natural life imprisonment without the
possibility of parole. In another case following a jury trial Edwards was convicted

of armed robbery and sentenced to sixty years imprisonment to run consecutively to

1


weigh the evidence and re-evaluate the credibility of trial witnesses.

Second, Edwards has procedurally defaulted on this claim because Edwards
failed to raise it in his petition for leave to appeal to the Illinois Supreme Court.
O'Sullivan, 526 U.S. at 839-40(holding that a “state prisoner must present his
claims to a state supreme court in a petition for discretionary review in order to
satisfy the exhaustion requirement”). Further, waiver of a claim in state court
proceedings prevents habeas corpus review absent a showing of cause or prejudice.
Dortch, 863 F.2d at 1343 quoting Sotelo v. Indiana State Prison, 850 F.2d 1244,

1252 (7th Cir. 1988)). Edwards has made no such showing of cause or prejudice.

B, Admittance of Evidence of Other Crimes

Edwards argues that the trial court improperly admitted evidence of other
crimes. Under 28 U.S.C. § 2254, this court is restricted to a determination as to
whether a state court’s decision rises to a level of a constitutional violation. First,
Edwards failed to specify that this claim constituted a violation of a federal
constitutional right and the state appellate court accordingly dealt with the issue in
state law terms. Second, Edwards is asking this court to grant federal habeas relief
on the basis of an evidentiary ruling. This the court will not do, unless the
evidentiary ruling was so egregious that it violated Edwards’ right to due process
because it denied him a right to a fair trial. Cramer v. Fahner, 683 F.2d 1376, 1385

(7th Cir. 1982) (stating “[e}rroneous evidentiary rulings wil! not cause a writ to issue

12


was proper.

D. Evidence of Other Crimes, Exculpatory Evidence, Assistance of Counsel

Edwards argues that there was no evidence to link him to other crimes
introduced against him and that the prosecution failed to disclose exculpatory
evidence relating to the other crimes. Edwards also claims that his trial counsel was
ineffective for failing to challenge false criminal allegations used against Edwards at
trial. Edwards argues that there was evidence that another suspect had confessed to
the murder in Ohio. However, as indicated above, the state appellate court
reasonably concluded that Edwards had failed to show that the confession would
have been admissible. In regards to fingerprint evidence in the Ohio case, as
indicated above, Edwards waived the argument by failing to raise it on direct appeal
and the evidence would not have changed the outcome of Edwards’ trial in the
Raveling murder case. Edwards also claims that the prosecutor failed to disclose
evidence that an individual negotiating with the government stated that Edwards did
not act alone in the Ohio murder. As indicated above, Edwards has failed to show
that the evidence was trustworthy. Edwards also complains about the fuzzy quality
of the video tape of the bank robbery, but as indicated above his trial counsel

received the tape well in advance of the trial and he did not show that a clearer tape

15