to the jury, denied [him] a fair trial.” Cisero’s Pet. for Writ of Habeas Corpus, Part III(1)(A). With
regard to the Brady violation claim, Cisero argues that the State failed to timely disclose the fact that
“the informant [Chinwah], who testified at trial, was not going to be prosecuted for an unrelated
Federal investigation... .” Id., Part I1I(1)(B).
Il. ANALYSIS
A, Standard of Decision
Cisero’s petition is governed by 28 U.S.C. § 2254(d), as amended by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), which sets a high hurdle for habeas relief. The statute
states:
(d) An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim -
(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). A state court’s decision is contrary to clearly established Supreme Court
precedent “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court
ona question of law” or “if the state court confronts facts that are materially indistinguishable from
arelevant Supreme Court precedent and arrives at a result opposite to [it].” Williams v. Taylor, 529
U.S. 362, 405 (2000). A state court’s decision is an unreasonable application of clearly established

Supreme Court law “if the state court identifies the correct governing legal rule from this Court’s

cases but unreasonably applies it to the facts of a particular prisoner’s case” or “if the state court



this determination, a court must consider six factors set forth in Darden: “(1) whether the prosecutor

misstated the evidence; (2) whether the remarks implicate specific rights of the accused; (3) whether
the defense invited the response; (4) the trial court’s instructions; (5) the weight of the evidence
against the defendant; and (6) the defendant’s opportunity to rebut.” Id. (citing Howard v. Gramley,
225 F.3d 784, 793 (7th Cir. 2000)).

The Illinois Appellate Court adhered to the two-step framework set forth in Darden. As to
the first step of the Darden analysis, the Illinois Appellate Court indicated that the comments did not
rise to the level of error reflected in other cases, but rather presumed that the comments were
improper. See People v. Cisero, No. 98-1830, slip op. at 28. As to the second step of the Darden

analysis, the court did not recite with precision the factors set forth in Darden, but rather focused on

the Darden factor that the Seventh Circuit has deemed to be the most important — the weight of

evidence against the defendant. See, e.g., Howard, 225 F.3d at 793. As the Seventh Circuit has

stated: ““[S]trong evidence of guilt eliminates any lingering doubt that the prosecutor’s remarks

unfairly prejudiced the jury’s deliberations.”” Rodriguez v. Peters, 63 F.3d 546, 558 (7th Cir. 1995)
(quoting United States v. Gonzalez, 933 F.2d 417, 431-32 (7th Cir. 1991)), As indicated by the
Illinois Appellate Court, “[t]he record reveals that there was considerable evidence of defendant’s
involvement in the drug transaction at issue including audio and visual tapes of defendant, the
testimony of the investigating officers, defendant’s fingerprints, and his own statements regarding
his involvement.” See People v. Cisero, No. 98-1830, slip op. at 26. The Illinois Appellate Court
concluded its analysis of this issue stating that because “there was considerable evidence of

defendant’s involvement in the drug transaction in June 1995... . [i]t is doubtful that the jury verdict

would have been different even if these complained-of comments had not been made to the jury.”

9



habeas petitioner procedurally defaults, or waives, any claim raised for the first time in federal court.
Also, federal habeas courts cannot review claims that the state court has disposed of on state

law grounds. See Stewart v. Smith, 536 U.S. 846, 860 (2002); see also Lambrix v. Singletary, 520

USS. 518, 523-24 (1997) (noting that where “the state law determination is sufficient to sustain the
decree, any opinion . . . on the federal question would be purely advisory.”) (citing Herb v. Pitcairn,
324 U.S. 117, 125-26 (1945)). Put another way, federal habeas relief is not available if the state
court decision rests on state law that “is independent of the federal question and adequate to support
the judgment.” See Coleman v. Thompson, 501 U.S. 722, 729 (1991). For example, waiver under
state law is an independent and adequate state law ground for dismissal that can preclude federal
habeas relief. Thus, when a state court determines that a habeas petitioner waives a claim in state
court, that waiver is an independent and adequate state law determination that bars federal habeas
relief. See Harris v. Reed, 489 U.S. 255, 258 (1989) (citing Wainwright v. Sykes, 433 U.S. 72, 86-
87 (1977)); see also Wright v. Walls, 288 F.3d 937, 947 (7th Cir. 2002) (waiver is an independent
and adequate state ground in Illinois); Patrasso v. Nelson, 121 F.3d 297, 301-02 (7th Cir. 1997)
(comparing waiver and res judicata under Illinois law, and the consequences of each on subsequent
federal habeas review). However, for waiver to bar federal habeas review, the last state court to
consider the question must have “actually relied on procedural default as the basis for its decision.”
Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000). If that is not so, the merits of the issue are
preserved for federal habeas review. See id.

A federal court may not grant habeas relief on a defaulted claim unless the 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 claim will result in a fundamental miscarriage of



either unreasonably extends a legal principle from our precedent to a new context where it should
not apply or unreasonably refuses to extend that principle to a new context where it should apply.”
Id. In order for a state court decision to be considered “unreasonable” under this standard it must
be more than incorrect, it must lie “well outside the boundaries of permissible differences of
opinion.” Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also Schultz v. Page, 313 F.3d
1010, 1015 (7th Cir. 2002) (“The state court decision is reasonable if it is minimally consistent with
the facts and circumstances of the case.”).

Before reviewing the Illinois courts’ decisions, however, the court must determine whether
Cisero fairly presented his federal claims to the state courts. Section 2254 requires a habeas
petitioner to exhaust the remedies available in state court prior to pursuing federal habeas relief. See
28 U.S.C. § 2254(b)(1)(A). Any claim not presented to the state’s highest court is deemed
procedurally defaulted. See O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (indicating that
“a petition for discretionary review in Illinois’ Supreme Court is a normal, simple, and established
part of the State’s appellate review process”).

In addition to exhausting the remedies available in state court, a habeas petitioner is
procedurally barred from raising claims in a federal habeas court that he did not raise in the state
court proceedings. See O’Sullivan, 526 U.S. at 848 (holding that a petitioner’s failure to present
three claims to the Illinois Supreme Court for discretionary review resulted in a procedural default
of those claims). Fair presentment of a constitutional claim requires a habeas petitioner to present
both the operative facts and the controlling legal principles to the state court before bringing the
claims to a federal habeas court. Cf. Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999)

(discussing exhaustion of claim) (citing Picard v. Connor, 404 U.S. 270, 277 (1971)). Thus, a



preserved for review. The first statement was the prosecution’s remark, in opening statements, that
“You [the jury] are now going to hear from the defendant’s attorney who is a very skilled lawyer.”
See People v. Cisero, No. 98-1830, slip op. at 25. The second statement was the prosecution’s
remark, in closing arguments, that “E.K. [the informant who testified against Cisero] had to
cooperate because he could not afford an expensive attorney like defendant.” See id. The Illinois
Appellate Court analogized these comments to People v. Everette, 581 N.E.2d 109 (Ill. App. Ct.
1991), in which the prosecution referred to the defendant’s attorney as a “hired gun.” See id. at 28.
The Illinois Appellate Court indicated that the comments directed against Cisero’s attorney did not

rise to level of the comments in Everette; however, the court found that these two statements were

improper, but “based on the overwhelming evidence against defendant, the comments do not require
anew trial.” Id. at 28. Proceeding, the court stated: “We therefore hold that the two complained-of
comments were not so inflammatory that they prejudiced defendant or denied him a fair trial.” Id.

These two claims of prosecutorial misconduct are preserved for habeas review by this court.
The leading United States Supreme Court case on the issue of improper prosecutorial comments
during trial is Darden vy. Wainwright, 477 U.S. 168 (1986). The Seventh Circuit, in adhering to
Darden, follows a two-step course when deciding whether prosecutorial misconduct, including
improper comments to the jury at trial, is so egregious that it requires a new trial as a matter of
constitutional law. See Whitehead v. Cowan, 263 F.3d 708, 728 (7th Cir. 2001). First, the court
must look at the comments in isolation to determine if they were improper. See id. If they are
proper, the analysis ends. See id. If the comments appear improper, the court must then examine
the comments in light of the record as a whole to determine whether they deprived the defendant of

a fair trial. See id. (citing United States v. Whitaker, 127 F.3d 595, 606 (7th Cir. 1997)). To make



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Nome atawined uss | Charles RNorgle_| tiga one
CASE NUMBER 01 C 7587 DATE 7/8/2004
CASE United States of America ex rel Fred Cisero vs. Paul Barnett, Warden, Robinson Corr. Ctr.
TITLE
[In 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:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
3)’ Oo Answer brief to motion due___- Reply to answer briefdue____.
(4) Oo Ruling/Hearingon__set for_______at.
(S) a Status hearing[held/continued to] [set for/re-set for]on__—set for__at
© ‘ Oo Pretrial conference[held/continued to] [set for/re-set for}on____—setfor__— ss at__
(7) QO Trial(set for/re-set for] on____at.
(8) Oo [Bench/Jury trial] [Hearing] held/continuedto___at
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COPRCP4(m) CLocal Rule 41.1 CFRCP41(a)(1) C FRCP41(a)(2).

(10) Wl [Otherdocketentry] Fred Cisero’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

is denied. See attached.

(1) gf [For further detail see order attached to the original minute order. ]

No notices required, advised in open court,

No notices required. ,
umber of aotices

UL 14 2004

Notices mailed by judge’s staff.

Notified counsel by tclephone.

xX Docketing to mail notices.

Mail AO 450 form.

Lunas Lowisia ‘s'n
"| Copy to judge/magistrate judge 4
courtroom Gtsh Hd £1 Tar yaz date mailed notice
deputy’s
initials rn
Daledtittarsaived 10 ; ;
central Clerk's Office main depury nts



the court to review this claim. See Edwards, 529 U.S. at 450-52. As such, the court is prohibited

from considering the merits of Cisero’s claim unless he can demonstrate a sufficient probability that
our failure to review his federal claim will result in a fundamental miscarriage of justice. See id.; see
also Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003) (“The fundamental-miscarriage-of-justice
exception applies only in the ‘extremely rare’ and ‘extraordinary case’ where the petitioner is
actually innocent of the crime for which he is imprisoned.”) (quoting Schlup v. Delo, 513 U.S. 298
(1995)). Similarly, Cisero makes no claim that failure to review his federal claim will result in a
fundamental miscarriage of justice. Therefore, the court is prohibited from considering the merits
of Cisero’s Brady violation claim.
II. CONCLUSION
For the foregoing reasons, Fred Cisero’s petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 is denied.

IT IS SO ORDERED

ATER 7 Vee . Zz. hi fee ZL

CHARLES RONALD NORGLE, Judge
United States District Court

DATED: OBO gy

11



Id. at 28. Based on the foregoing analysis, the court cannot conclude that the Illinois Appellate
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 States.” 28 U.S.C. § 2254(d); see
also Williams, 529 U.S. at 405.

In sum, Cisero fails to address the Illinois Appellate Court’s decision, and thus fails in his
burden of establishing that its decision on his prosecutorial misconduct claim was either “contrary
to” or “involved an unreasonable application” of clearly established United States Supreme Court
precedent. See Lechner v. Frank, 341 F.3d 635, 638 (7th Cir. 2003); see also Woodford v. Visciotti,
537 U.S. 19, 24-25 (2003) (petitioner has the burden of establishing that the state court applied facts
in an objectively unreasonable manner). Therefore, the court denies Cisero’s prosecutorial
misconduct claim.

2. Brady Violation

With regard to the Brady violation claim, Cisero argues that the State failed to timely disclose
the fact that Chinwah, “who testified at trial, was not going to be prosecuted for an unrelated Federal
investigation....” Cisero’s Pet. for Writ of Habeas Corpus, Part III(1)(B). Specifically, on the
day of Cisero’s trial, prior to voir dire, the prosecution informed the court and Cisero that the United
States Attorney had elected not to prosecute Chinwah, who testified against Cisero at trial.

Cisero did not raise his claim of a Brady violation in his petition for leave to appeal to the
Illinois Supreme Court, and as a result that claim is procedurally defaulted. See O’Sullivan, 526
U.S. at 848 (holding that a petitioner’s failure to present three claims to the Illinois Supreme Court
for discretionary review resulted in a procedural default of those claims). Further, Cisero does not

attempt to establish cause and prejudice for failing to raise this claim in the state court so as to allow

10



justice. See Edwards v. Carpenter, 529 U.S. 446, 450-52 (2000); Coleman, 501 U.S. at 750;

Anderson v. Cowen, 227 F.3d 893, 899 (7th Cir. 2000).
B. Cisero’s Arguments

1. Prosecutorial Misconduct

With regard to the prosecutorial misconduct claim, Cisero argues that “[rJepeated improper
comments by the prosecutor, in closing arguments to the jury, denied [him] a fair trial.” Cisero’s
Pet. for Writ of Habeas Corpus, Part III(1)(A). Specifically, Cisero claims that the following
comments by the prosecutor deprived him of his right to a fair trial: (1) “Fred’s been sitting here
during these last two weeks meekly in the courtroom.”; (2) “Well, the defendant is presumed to be
innocent. They [the defense] presume all of you to be naive and gullible.”; (3) “They [the defense]
don’t want you to think about the evidence.”; (4) “We will ask you to put a major drug dealer out
of business.”; and (5) references to Cisero’s attorney as a “skilled lawyer” and a “fancy lawyer”.
Cisero’s Pet. for Writ of Habeas Corpus, Part III(1)(A).

The Illinois Appellate Court reviewed Cisero’s claims of prosecutorial misconduct, finding
that, under Illinois law, he had waived any challenge to the majority of the alleged improper
comments by failing to include them in his post-trial motion. See People v. Cisero, No. 98-1830,
slip op. at 24 (citing People v. Herrett, 137 Ill. 2d 195, 209, 561 N.E.2d 1 (1990); People v. Enoch,
122 IL. 2d 176, 185-86, 522 N.E.2d 1124 (1989)). Because waiver is an independent and adequate
state ground and Cisero offers no explanation for this procedural default, the court cannot review

these specific claims of prosecutorial misconduct. See Stewart, 536 U.S. at 860; Wright, 288 F.3d

at 947 (waiver is an independent and adequate state ground in Illinois).

The Illinois Appellate Court found that only two claims of prosecutorial misconduct were



of Cook County, Cisero was convicted of one count of delivery of a controlled substance, in
violation of 720 Ill. Comp. Stat. 570/401(a)(2)(D), and sentenced to a term of twenty years
imprisonment.

Cisero filed a direct appeal from his conviction to the Illinois Appellate Court, First Judicial
District, raising the following issues: (1) the trial court erred in not suppressing a statement made

during custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436 (1966); (2) various

comments, amounting to prosecutorial misconduct, resulted in the denial of a fair trial; and (3) the
trial court abused its discretion in not granting a continuance based on the State’s late production of
information that the United States Attorney had elected not to prosecute an individual who testified
against Cisero. See Resp’s. Answer, Ex. A (Cisero’s appellate brief). On June 30, 2000, the Illinois
Appellate Court affirmed Cisero’s conviction. See People v. Cisero, No. 98-1830, 775 N.E.2d 1068
ill. App. Ct. June 30, 2000) (unpublished opinion); see also Resp’s. Answer, Ex. B.

Cisero then filed a petition for leave to appeal to the Illinois Supreme Court, raising the single
issue of prosecutorial misconduct. See Resp’s. Answer Ex. C (Cisero’s petition for leave to appeal).
On October 4, 2000, the Illinois Supreme Court denied Cisero’s petition for leave to appeal. See
People v. Cisero, 738 N.E.2d 930 (Ill. Oct. 4, 2000); see also Resp’s. Answer, Ex. D.

Cisero filed his petition seeking a writ of habeas corpus, brought pursuant to 28 U.S.C. §
2254, in the federal district court on October 2, 2001, within the one-year deadline provided by 28
US.C. § 2244(d)(1). In the instant petition, Cisero argues that he is entitled to habeas relief based
on prosecutorial misconduct, which deprived him of his federal due process right to a fair trial, and
a violation of Brady v. Maryland, 373 U.S. 83 (1963). With regard to the prosecutorial misconduct

claim, Cisero argues that “[r]epeated improper comments by the prosecutor, in closing arguments



Answer, Ex. B.
A, Facts

On June 21, 1995, Cisero delivered nearly five kilograms of cocaine to an individual named
E.K. Chinwah, who was cooperating in an ongoing investigation by the United States Drug
Enforcement Agency (“DEA”). The following day, Cisero received a bag from Chinwah, which
contained approximately $125,000 in cash. The DEA videotaped the transaction, and had also taped
several conversations between Cisero and Chinwah leading up to the transaction.

On October 16, 1995, a group of federal and local law enforcement officers went to Cisero’s
home to discuss his participation in the June transaction and to seek his cooperation in the
investigation of another individual. During the visit, Cisero made statements to the officers detailing
his involvement in various drug transactions. In addition, Cisero gave the officers a handgun, two
shotguns, and approximately $27,000 in cash. At that time, Cisero agreed to cooperate with law
enforcement; however, a few days later he expressed his intention not to cooperate.

On November 2, 1995, Cisero was arrested and charged with one count of delivery of a
controlled substance, based on the June transaction, and three counts of unlawful use of a weapon
by a felon, based on the handgun and shotguns he turned over to law enforcement officers on
October 16. The State dropped the unlawful use of a weapon charges, and proceeded to trial on the
delivery of a controlled substance charge.

B. Procedural History

Prior to trial, Cisero filed a motion to suppress certain statements and evidence given to law

enforcement officials during the October 16 visit to his home. On September 24, 1997, a hearing

was held and the motion was denied. On April 16, 1998, following a jury trial in the Circuit Court



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION BOG

JUL 1 4 2004

United States of America ex rel.
FRED CISERO,

No. 03 C 3585
Plaintiff,
v. Honorable Charles R. Norgle

PAUL BARNETT, Warden, Robinson
Correctional Center

SSS SS SS SS SY

Defendants.
OPINION AND ORDER
CHARLES R. NORGLE, District Judge
Before the court is Fred Cisero’s petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Petitioner, Fred Cisero (“Cisero” or “Petitioner”), challenges his conviction for delivery of
a controlled substance, in violation of 720 Ill. Comp. Stat. 570/401(a)(2)(D). Cisero argues that he
is entitled to habeas relief based on prosecutorial misconduct, which deprived him of his federal due
process right to a fair trial, and a violation of Brady v. Maryland, 373 U.S. 83 (1963). For the
reasons stated below, the petition is denied.
I. BACKGROUND
On habeas review, the court must presume that the state courts’ factual determinations are
correct unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1); Sumner v. Mata, 449 U.S. 539, 544-46 (1981); Todd v. Schomig, 283 F.3d 842, 846
(7th Cir. 2002). Cisero has not presented clear and convincing evidence to rebut this presumption.
Therefore, the court adopts the Illinois Appellate Court’s recitation of facts. See People v. Cisero,

No. 98-1830, 775 N.E.2d 1068 (Ill. App. Ct. June 30, 2000) (unpublished opinion); see also Resp’s.

[2