1Unless 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 (7th

Cir. 2000).

-1-

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

United States of America ex. rel. )

OLUBOBA

MOHAMMED

) 

)

Petitioner )

) No. 03 C 524

v. )

) HONORABLE DAVID H. COAR

 DAVID C. FREEMAN, Warden, Taylorville )

Correctional Center, )

Respondent. )

MEMORANDUM OPINION AND ORDER

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

Oluboba Mohammed (“Petitioner”). For the reasons stated below, this petition is DENIED. 

Petitioner’s motion to file additional authority is GRANTED. Petitioner’s motion to refile part

of the record is GRANTED. All other motions are MOOT and TERMINATED. This case is

CLOSED.

PROCEDURAL BACKGROUND1

On October 7, 1993, on-duty Chicago Police officers Paul Cardon, Tom Carvice, Edison

Dantes, and Mark Van Guison received a radio dispatch reporting that drugs were being sold in

Apartment 512, 1415 W. Lunt Street, in Chicago. The officers went to the apartment building,
2The parties later stipulated that the white substance was 778.68 grams of heroin.

-2-

and positioned themselves in a stairwell near the unit in question. From their vantage point, they

could peer into the well-lit hallway outside of Apartment 512.

Soon after, Cardon saw Petitioner walk past the stairwell and into the apartment. 

Petitioner carried a large, black suitcase with him. After Petitioner went inside the apartment,

Cardon and the other officers knocked on the door. When Petitioner answered the door, Cardon

identified himself as a police officer, told Petitioner that he and his fellow officers were

conducting a drug investigation, and asked if he and the other officers could enter the apartment. 

Petitioner let the officers into the apartment. 

Once inside, Cardon saw that the suitcase Petitioner had been carrying was on the living

room floor, a “few feet” away from Petitioner. When Cardon asked Petitioner about the suitcase,

Petitioner explained that he did not own the suitcase, it belonged to his friend G.D., and that G.D.

asked Petitioner to bring the suitcase to the apartment. When Cardon asked to see inside the

suitcase, Petitioner opened it. Inside the suitcase were men’s clothes that appeared to be

Petitioner’s size and a white plastic bag that appeared to have lumps in it. Cardon asked

Petitioner what was in the bag. The record is unclear as to whether Petitioner remained silent or

answered that he did not know what was in the bag. In any event, Petitioner then opened the bag. 

Inside the bag were eight clear packages containing a white powder that Cardon believed to be

drugs.2 Also in the suitcase was over $5,000 in U.S. currency, primarily in twenty dollar bills. 

At that point, the officers arrested Petitioner. On the ride to the police station, the officers

learned that Petitioner was born in Nigeria and possessed a Virginia driver’s license. 
-3-

During the closing arguments of Petitioner’s trial, the prosecutor told the jury, “There are

three pieces of key evidence that I want you to take together to draw a conclusion; that suitcase,

that Virginia driver’s license and the defendant’s nationality. Taken together we know–“ At that

point, the defense attorney objected and his objection was overruled. The prosecutor continued,

“The defendant has no ties that he demonstrated to those officers to the Chicago area, to Cook

County, to our community and to our lives.” 

Later, the prosecutor stated that “Today is the day that you make the taking [of the drugs

by the police] final, that you tell these officers that they did a good job and that they did the right

thing and that they acted on behalf of us on [sic] a community. We hear a lot *** about this war

on drugs. And it seems huge and it seems overwhelming, and it seems a lot like we are losing or

that there is no answer. The war on drugs is one step at a time.”

Petitioner’s counsel responded in his closing argument: “I’m not quite sure what the State

was saying about his nationality because he is from a foreign country does that make him guilty? 

Does that mean that he is guilty of carrying or knowing that he is carrying drugs around because

he is from Nigeria? *** The fact that he was born in Nigeria, he had a Virginia driver’s license,

our client did not testify. And you will hear from the Judge *** that doesn’t mean anything. 

You cannot use that against him. The fact that he did not testify, because the burden is not on the

defense.”

In its rebuttal, the State argued, “Well, the only person that knows where this G.D. exists

is the defendant. The only testimony that you heard today was what he was coming from [sic]

that witness stand.” Petitioner’s counsel objected; the court overruled the objection. The
-4-

prosecutor continued, “And what you see in any of the exhibits. That’s the testimony. You can

come up with hypotheticals until pigs fly *** it’s not evidence.”

In her rebuttal, the prosecutor went on to add, “[A] million dollars of cocaine when it hit

the street is not on the street *** because these police officers and this tactical unit did exactly

what they were supposed to do. They investigated a complaint and they got a million dollars

worth of heroin off the street. And ladies and gentleman, to maintain police officers being able

to do that and to tell mid-level dealers like the defendant that they have to stop[,] *** find him

guilty of possession with the intent to deliver over four hundred, less than nine hundred grams of

heroin.” 

The jury found Petitioner guilty. On January 10, 1998, he was sentenced to 20 years of

incarceration, to run concurrently with a sentence imposed by a federal district court in Texas. 

Petitioner’s appellate counsel filed a direct appeal based solely on an insufficiency of

evidence argument and lost. Petitioner attempted to file a supplemental pro se brief, which the

state appellate court did not allow. Petitioner did not file for further review in the Illinois

Supreme Court. Instead, on July 19, 1999, he filed a petition for post-conviction relief in the

Circuit Court of Cook County pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS

5/122-1, et seq.. In the petition, he alleged that his trial and appellate counsel were both

ineffective, and raised a claim of prosecutorial misconduct. 

The circuit court dismissed the post-conviction petition as frivolous and patently without

merit. Petitioner, with the assistance of appellate counsel, appealed the dismissal. Appellate

counsel briefed two distinct issues. First, counsel argued that the dismissal of Petitioner’s postconviction petition under state law violated the single subject rule of the Illinois constitution. 
-5-

Second, counsel argued that the trial court’s dismissal of Petitioner’s post-conviction

petition–including dismissal of a claim related to prosecutorial misconduct–should have been

reversed as it was not frivolous. The appellate court affirmed the dismissal. Petitioner’s postconviction appellate counsel then filed a petition for leave to appeal to the Illinois Supreme

Court, preserving the prosecutorial misconduct claim. Petitioner also was granted leave to file a

pro se supplemental brief in support of the petition for leave to appeal. In his supplemental brief,

Petitioner argued that his counsel on direct appeal was ineffective for failing to argue that the

trial court erred when it denied a motion to suppress the evidence found as a result of the police

search and that the appellate court erred during post-conviction review by failing to acknowledge

the claim of prosecutorial misconduct that was mentioned in the post-conviction petition but not

included in Petitioner’s appellate brief. The Illinois Supreme Court denied the petition for leave

to appeal. 

 On January 22, 2003, Petitioner filed a habeas petition in this Court. 

HABEAS CORPUS STANDARDS

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 (7th 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 (7th Cir. 1991). 
-6-

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). In order to avoid procedural default, a petitioner must

fairly present the claim “at each and every level in the state court system...” See Lewis v.

Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 844-

845 (1999)). As the Seventh Circuit has noted, “A habeas petitioner who has exhausted his state

court remedies without properly asserting his federal claim at each level of state court review has

procedurally defaulted that claim.” Lewis, 390 F.3d at 1026 (internal citations omitted)

(emphasis added). 

If a petitioner has procedurally defaulted on any claim, this Court can only grant relief if

(1) there is adequate cause for his failure to raise the claim in state court and prejudice resulting

from the default, see Wainwright v. Sykes, 433 U.S. 72, 87 (1977); or (2) default would result in a

“fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.

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;

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). The first ground pertains to pure questions of

law. See Lindh v. Murphy, 96 F.3d 856, 868-69 (7th Cir. 1996), rev’d on other grounds, 521 U.S.

320 (1997). The second ground pertains to mixed questions of law and fact. Id. at 870. To
-7-

warrant relief, the state-court error must be “grave enough to be called ‘unreasonable.’” Id. A

state-court conclusion will stand if it is “one of several equally plausible outcomes.” Hall

v.Washington, 106 F.3d 742, 749 (7th Cir. 1997). A state court's application of Supreme Court

precedent is reasonable if it is "at least minimally consistent with the facts and circumstances of

the case." Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997). Finally, the third ground

contemplates relief only where the facts are, by “clear and convincing evidence,” demonstrably

wrong. See 28 U.S.C. § 2254(e)(1). State court factual determinations are presumed to be

correct, although a petitioner may rebut that presumption with clear and convincing evidence. 

Mahaffey, 294 F.3d at 915; 28 USC §2254(e)(1).

ANALYSIS

Petitioner offers three possible grounds for habeas relief. First, he argues that his counsel

on direct appeal was ineffective for failing to appeal the trial judge’s refusal to suppress evidence

from the search (“ground one"). Second, he argues that his Fourth Amendment rights were

violated when the police, with his consent searched the apartment and the suitcase and later

arrested him (“ground two"). Third, he claims that the reason he was found guilty by the jury

was because of prosecutorial misconduct and that appellate counsel was ineffective for failing to

raise the prosecutorial misconduct argument in his direct appeal (“ground three”).

Grounds I and II

Petitioner did not fairly present either ground one or ground two to the appellate court for

review; as a result, they are procedurally defaulted. “Fair presentment in turn requires the

petitioner to assert his federal claim through one complete round of state-court review, either on

direct appeal of his conviction or in post-conviction proceedings.” Lewis v. Sternes, 390 F.3d
-8-

1019, 1025 (citing Boerckel, 526 U.S. at 845). In order to satisfy the requirement of fair

presentment, the Seventh Circuit requires a petitioner to “raise the issue at each and every level

in the state court system...” Id.

The Seventh Circuit’s decision in Howard v. O’Sullivan provides a helpful framework for

analyzing Petitioner’s presentment of the issues related to grounds one and two. See Howard v.

O’Sullivan, 185 F.3d 721 (7

th Cir. 1999). In Howard, the petitioner pursued both direct and

collateral proceedings all the way to the Illinois Supreme Court, but still procedurally defaulted

his ineffective assistance claim. The Howard petitioner presented a claim regarding the

ineffective assistance of his original trial counsel in his request for post-conviction relief. That

claim, however, was never presented to the appellate court. The Seventh Circuit determined that

“by changing the basis of his argument between the trial court and the appellate court, Howard

did not fairly present the question of ineffective assistance of trial counsel to the appellate court. 

Accordingly, he has procedurally defaulted that claim.” Id. at 725. Howard’s discussion of the

claim in his post-conviction relief petition was not enough: “[S]tate prisoners 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.” Id. (citing Boerckel, 526 U.S. at 845). The

Seventh Circuit also clarified that fair presentment requires petitioners to give state courts “a

meaningful opportunity” to review the claims later presented in federal court. See Howard, 185

F.3d at 725. 

Petitioner did not raise the issues related to ground one or ground two at each and every

level in the state court system. While Petitioner did raise the issue of ineffective appellate

counsel as it relates to ground one in his original petition for post-conviction relief, he then failed
3Even if petitioner had not defaulted the claim, it is patently without merit. The evidence

indicated that Petitioner consented to the search of the apartment and the search of the suitcase. 

In his own briefing, Petitioner agrees that he consented to the search but claims that he was

coerced and that submission to the search was not an act of free will. Petitioner did not prove

such coercion at trial, nor does he present evidence that could prove such coercion now. His

claim is without merit. 

-9-

to present the claim to the appellate court. As a result, the appellate court did not hear either

claim at any point in time. 

Petitioner’s Fourth Amendment claim is slightly more complicated in that he did at least

attempt to present it to the appellate court on direct appeal by filing a motion for permission to

submit a pro se supplementary brief that hinted at his claim. The appellate court denied the

motion, however, after noting that Petitioner’s counsel had already submitted an appellate brief. 

The court was presumably following state precedent found in cases like in People v. McDonald,

660 N.E.2d 832 (1995). In McDonald, the Illinois Supreme Court determined that defendants in

non-capital cases did not have a right to both self-representation and assistance of counsel. 

Given that the state court determined that a pro se supplemental brief was not appropriate,

this Court will not now determine that Petitioner’s motion for permission to submit a pro se

supplemental brief fairly presented issues related to ground two such that Petitioner has avoided

procedural default. Petitioner could have remedied the problem by presenting the Fourth

Amendment claim in his post-conviction appeal, but he failed to do so. Given that he did not

present the Fourth Amendment claim to the appellate court in accordance with appellate court

procedures, he has procedurally defaulted the claim.3 

Petitioner argues that by presenting issues related to both ground one and ground two in

his supplemental petition for leave to appeal to the Illinois Supreme Court, he has avoided
4

Petitioner also argues that by presenting a supplemental brief on the Fourth

Amendment issue to the appellate court during direct review, he has avoided procedural

default. The appellate court, however, did not grant Petitioner leave to file the supplemental

brief after noting that public defender had already filed a brief in the case. 

-10-

procedural default. But a discretionary appeal in the last stages of a post-conviction review

cannot satisfy the requirement that the claim be fairly presented “at each and every level in the

state court system...” See Lewis v. Sternes, 390 F.3d 1019, 1025 (citing Boerckel, 526 U.S. at

845). As the Seventh Circuit has noted, “[a] habeas petitioner who has exhausted his state court

remedies without properly asserting his federal claim at each level of state court review has

procedurally defaulted that claim.” Lewis v. Sternes, at 1026 (emphasis added)(citations

omitted).4

Federal review of Petitioner’s claims on Counts I and II are barred unless Petitioner can

“demonstrate cause for the default and actual prejudice as a result of the alleged violation of

federal law, or demonstrate that failure to consider the claims will result in a fundamental

miscarriage of justice.” Coleman, 501 U.S. at 750. Petitioner does not present argument

supporting either possibility. As such, his petition for relief as to grounds one and two is

DENIED.

Ground III

As his third ground for habeas relief, Petitioner argues both that the prosecutor’s

comments at trial were improper and that his lawyer on direct appeal was ineffective for failing

to raise the issue of the improper comments.

When determining whether a prosecutor’s comments denied a defendant a fair trial, the

court reviews the comments “first in isolation to determine whether they stayed within proper
-11-

bounds.” See United States v. Mietus, 237 F.3d 866, 870 (7th Cir. 2001)(citing United States v.

Cotnam, 88 F.3d 487, 498 (7th Cir. 1996)). If the comments were improper, “the next step in the

analysis depends on whether the impropriety violated one of the defendant’s specific trial rights,

such as the Fifth Amendment right against self-incrimination, or whether it reflected more

general prosecutorial misconduct....which could deprive the defendant of her due process right to

a fair trial.” Id. 

Comments on Petitioner’s Failure to Testify

Petitioner argues that the prosecutor improperly remarked upon his failure to take the

stand. The prosecutor stated, “Well, the only person that knows where this G.D. exists is the

defendant. The only testimony that you heard today was what he was coming from [sic] that

witness stand.” Petitioner’s counsel objected; the court overruled the objection. The prosecutor

continued, “And what you see in any of the exhibits. That’s the testimony. You can come up

with hypotheticals until pigs fly *** it’s not evidence.” According to Petitioner, prosecutor’s

comments highlighted his failure to testify and therefore violated his Fifth Amendment right

against self-incrimination. 

Prosecutors violate the Fifth Amendment by making either direct or indirect comments

that invite the jury to draw an adverse inference from a defendant’s failure to testify. See Mietus,

237 F.3d at 871. Indirect comments violate the Fifth Amendment only if “(1) the prosecutor

manifestly intended to refer to the defendant’s silence or (2) a jury would naturally and

necessarily take the remark for a comment on defendant’s silence.” Mietus, 237 F.3d at 871,

citing United States v. Butler, 71 F.3d 243, 254 (7th Cir. 1995). Moreover, “[a] prosecutor’s

comment that the government’s evidence is uncontradicted or unrebutted will violate this rule
-12-

only if the only person who could have rebutted the evidence was the defendant.” Mietus, 237

F.3d 871, citing United States v. Aldaco, 201 F.3d at 987. When deciding whether the

Petitioner’s Fifth Amendment rights were violated, the offending statements “should be analyzed

in context.” Mietus, 237 F.3d 871, citing United States ex. rel. Lee v. Flannigan, 884 F.2d 945,

954 (7th Cir. 1989). 

The prosecutor’s comments regarding Petitioner’s failure to testify were improper. The

statement that “the only person that knows where this G.D. exists is the defendant” is the kind of

comment that highlights the fact that only Petitioner could have rebutted the evidence presented

and would lead a jury to question Petitioner’s decision to remain silent. The statement that the

only testimony came from the witness stand–in light of the fact that Petitioner did not testify and

the preceding comment about G.D.–does indicate that the prosecutor manifestly intended to refer

to the defendant’s silence. 

Even though the prosecutor’s comments were improper, however, the error in this case

was harmless. In cases where a specific trial right is violated, “the court may hold the error

harmless and uphold the conviction only if the government proves beyond a reasonable doubt

that the defendant would have been convicted absent the unconstitutional prosecutorial

comments.” Cotnam, 88 F.3d at 500 (citations omitted). The statements were isolated, the jury

was instructed to ignore them, and the evidence presented indicated beyond a reasonable doubt

that Petitioner was guilty. 

When reviewing the comments, the appellate court concluded, “Although we do not

condone such a comment, based on the isolated nature of the comment and proper instructions to

the jury, we find that any error in allowing the comment was not so prejudicial as to justify
-13-

reversing defendant’s conviction or finding that defendant’s appellate counsel was ineffective in

failing to raise the comment as an issue on direct appeal.” This determination is neither

unreasonable nor contrary to established law. A jury could have found beyond a reasonable

doubt that the Petitioner was guilty as charged based on the evidence presented, including

evidence that four police officers saw Petitioner carry a suitcase into an apartment where drugs

were reportedly being sold, saw a substance that appeared to be drugs in the suitcase, and later

learned that the substance was heroin. Petitioner is not entitled to habeas relief on this claim.

General Prosecutorial Misconduct

First, this court must review the remarks related to a claim of general prosecutorial

misconduct to determine if they are improper. Then, in cases where the petitioner raises a claim

of general prosecutorial misconduct, the court should “consider the remarks in light of the entire

record to determine if the defendant was deprived of a fair trial; that is, the court should

determine “whether the prosecutors’ comments so infected the trial with unfairness as to make

the resulting conviction a denial of due process.” See Mietus, 237 F.3d at 871, citing Darden v.

Wainwright, 477 US 168, 181 (1986). When reviewing the improper remarks, a court must look

at five factors: “(1) the nature and seriousness of the prosecutorial misconduct; (2) whether the

prosecutor’s statement was invited by the conduct of defense counsel; (3) whether the trial

court’s instructions to the jury were adequate; (4) whether the defense was able to counter the

improper arguments through rebuttal; and (5) the weight of the evidence against the defendant.

See Aliwoli v. Carter, 225 F.3d 826, 829-830 (7th Cir. 2000) (citing United States v. Butler, 71

F.3d 243, 254 (1995).

Comments related to Petitioner’s license and place of birth
-14-

Petitioner claims that the prosecutor’s comments regarding the fact that he had a Virginia

driver’s license and that he was Nigerian were improper. The state has consistently argued that

the references to Petitioner’s nationality and state of residence were meant to highlight

circumstantial evidence proving that Petitioner was in Chicago solely for the purpose of selling

or transporting drugs rather than indicating that Petitioner should have been found guilty because

he was born in Nigeria or because he had a Virginia driver’s license. After highlighting that

Petitioner was neither born in Illinois nor a current resident, the prosecutor immediately followed

the comment by saying, “The defendant has no ties that he demonstrated to those officers to the

Chicago area, to Cook County, to our community and to our lives.”

The appellate court determined that the references to the license and to Nigeria were not

improper. According to the state court, the record suggested that “the State made the comments

to inform the jury that it could consider the place of defendant’s residence and birth as

circumstantial evidence that he was in Chicago to sell drugs or act as a courier for the drugs he

was carrying.” 

The references to the driver’s license were not improper and do not give rise to a ground

for habeas relief. The references to Nigeria, by comparison, are more troubling. While the

comment did not directly state that Petitioner is more likely to be a drug dealer because he is

Nigerian, this Court does wonder why the prosecutor thought the fact that Petitioner was a

Nigerian national was relevant to the charges in the case. 

Even if the prosecutor’s remarks about Nigeria were improper, however, they were not

“so inflammatory as to prejudice the defendant.” The Seventh Circuit was confronted with a

more direct link between nationality and guilt in United States v. Hernandez. See United States
-15-

v. Hernandez 865 F.2d 925 (1989). In that case, the Court of Appeals determined that a

reference to “Cuban drug dealers” was indefensible, given that the Constitution “prohibits a

prosecutor from making race-conscious arguments since it draws the jury’s attention to a

characteristic that the Constitution generally demands that the jury ignore.” Hernandez, 865 F.2d

925, 928 (cites omitted). The Seventh Circuit went on to determine that while the remark was

inappropriate, “within the context of the entire trial, the remark was not so inflammatory as to

prejudice the defendant.” Id. 

The remarks in this case were less direct and less inflammatory. When viewed in context

of the entire trial, they did not prejudice Petitioner. The evidence against Petitioner was quite

convincing: he was seen entering an apartment with a suitcase, he consented to police entry of

the apartment, and then consented to a police search of the suitcase. A search of the suitcase

yielded heroin. The jury could have inferred beyond a reasonable doubt that Petitioner was guilty

as charged. The comments did not misstate the evidence, nor did they implicate specific trial

rights. While they were not an “invited response” to the arguments of defense counsel, the

defense counsel did have the opportunity to respond and in fact did respond at length. Defense

counsel told the jury during his rebuttal: “I’m not quite sure what the State was saying about his

nationality because he is from a foreign country does that make him guilty? Does that mean that

he is guilty of carrying or knowing that he is carrying drugs around because he was born in

Nigeria?** The fact that he was born in Nigeria, he had a Virginia driver’s license, our client did

not testify. And you will hear from the Judge *** that doesn’t mean anything. You cannot use
5This Court does not have before it evidence regarding whether the trial judge gave any

instruction to the jury with respect to the comments based on Petitioner’s place of birth. Even

if the judge did not, however, the other factors provide sufficient justification for the

conclusion that Petitioner was not deprived of a fair trial.

-16-

that against him.”5

 In light of all these factors, it does not appear that Petitioner was denied a fair

trial on the basis of the prosecutor’s comments on Nigeria. The lack of prejudice against

Petitioner for these comments prevents this Court from granting habeas relief. 

Comments related to Police Efforts and War on Drugs

Petitioner argues that the prosecutor’s comments related to the war on drugs were

improper and unfairly prejudiced him. The prosecutor stated in her closing argument: “Today is

the day that you make the taking [of the drugs by the police] final, that you tell these officers that

they did a good job and that they did the right thing and that they acted on behalf of us on [sic] a

community. We hear a lot *** about this war on drugs. And it seems huge and it seems

overwhelming, and it seems a lot like we are losing or that there is no answer. The war on drugs

is one step at a time.” The prosecutor also stated: “[A] million dollars of cocaine when it hit the

street is not on the street *** because these police officers and this tactical unit did exactly what

they were supposed to do. They investigated a complaint and they got a million dollars worth of

heroin off the street. And ladies and gentlemen, to maintain police officers being able to do that

and to tell mid-level dealers like the defendant that they have to stop[,] *** find him guilty of

possession with an intent to deliver over four hundred, less than nine hundred grams of heroin.” 

The appellate court concluded that the comments related to the police and the war on

drugs were not improper. The court reviewed existing Illinois case law, and determined that the

“single comment that referred to the duties of the police” was not “in the nature of the repeated
-17-

‘personalized threatening’ comments” that were impermissible under Illinois law. The court

determined that Illinois law permitted a prosecutor to comment, in certain instances, on the war

on drugs. The court concluded that comment was not prejudicial and did not “support

defendant’s claim that his appellate counsel should have raised the comment as a basis for

reversible error.” Likewise, the Seventh Circuit has determined that references to the war on

drugs are not per se improper. See, e.g., U.S. v. Anderson, 61 F.3d 1290, 1300 fn. 6 (7th

Cir.,1995) (gathering cases). The prosecutor’s reference to police duties, while certainly not

ideal (or, for that matter, compelling), is not, as the state court noted, so egregious as to be

impermissible. The state court’s decision is neither contrary to nor employs an unreasonable

application of federal law. Consequently, Petitioner is not entitled to federal habeas relief. 

Conclusion

For the foregoing reasons, Petitioner’s request for habeas corpus relief is DENIED. This case

is CLOSED. Petitioner’s motion to file additional authority is GRANTED. Petitioner’s motion to

refile part of the record is GRANTED. All other motions are MOOT and TERMINATED. This

case is CLOSED.

Enter:

/s/ David H. Coar 

David H. Coar

United States District Judge

Dated: 3/11/05