alleged commission of “a host of additional prejudicial errors.”

Petitioner's remaining ineffective assistance claims are governed by Strickland v.
Washington, 466 U.S. 668 (1984), in which the Supreme Court established a two-pronged test for
ineffective assistance of counsel. Under the Strickland test, Petitioner must prove both (1) that his
counsel's performance was deficient and (2) that he was prejudiced by that deficiency. /d. at 687.
In addition, for Petitioner to succeed, “he must do more than show that he would have satisfied
Strickland’s test if his claim were being analyzed in the first instance, because under § 2254(d)(1),
it is not enough to convince a federal habeas court that, in its independent judgment, the state-
court decision applied Strickland incorrectly. . .. Rather, he must show that the [state court] applied
Strickland to the facts of his case in an objectively unreasonable manner.” Bell v. Cone, 535 U.S.
685, 698-99 (2002) (citation omitted). The Illinois Appellate Court applied the Strickland standard
in its consideration of Petitioner's ineffective assistance of counsel claims on direct appeal. Thus,
the court is left to consider whether the Appellate Court's application of the Strickland standard was
unreasonable.

Petitioner contends that his trial counsel failed to use two pretrial statements of Ramona
Siler which were consistent with her trial testimony - that is, they did not implicate Petitioner. The
Appellate Court held that counsel's decision not to use this statements was “strategic” and
“understandable.” People v. Morrow, 303 Ill. App. 3d at 682, 708 N.E.2d at 439. In the first
statement, given to Detective Halverson when she was first taken into custody, Siler claimed that
only Paschal went with Kosinski to Blackhawk Park and that they were followed in another car by
Morrow and McComb, who had a gun. During this statement, Siler claimed that she remembered
the date because Morrow had slapped her for not making enough money. The Appellate Court
noted that this statement “was not exculpatory and actually put him [Petitioner] at the scene.” The
court stressed that the reference to defendant's slapping Siler “would have reflected adversely on
[Petitioner] and may have strengthened the jury's belief that [he] had a need for money that day

14


crime. (Ex. | to Respondent's Answer.) The Appellate Court affirmed the dismissal of the post-
conviction petition on June 7, 2002. (Order of Illinois Appellate Court, No. 1-00-3878, Ex. K to
Respondent's Answer.)

Finally, Petitioner, now without counsel, filed a PLA to the Illinois Supreme Court
challenging the Order of the Appellate Court affirming the dismissal of his post-conviction petition.
(Ex. L to Respondent’s Answer.) In the PLA, Petitioner claimed (1) ineffective assistance of
counsel and (2) that the sentencing court was unduly influenced by the armed robbery conviction
that was subsequently overturned on appeal. The Illinois Supreme Court denied leave to appeal
on December 5, 2002. People v. Morrow, 202 Ill. 2d 644, 787 N.E.2d 168 (Ill. 2002).

DISCUSSION
I Standards of Review

A prisoner is entitled to a writ of habeas corpus if he is being held pursuant to a state court
judgment obtained in violation of the United States Constitution. 28 U.S.C. § 2254. The Anti-
terrorism and Effective Death Penalty Act explains that where claims that were adjudicated on the
merits in state court, a federal court will not grant a writ of habeas corpus unless the state decision
(1) 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
proceedings. 28 U.S.C. § 2254(d)(1) & (2).

Before a federal court will consider a habeas petition on the merits, the petitioner must first:
“(1) exhaust all remedies available in state courts . . . and (2) fairly present any federal claims in
state courts first, or risk procedural default.” Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996)
(citations omitted). A habeas petitioner may not proceed in federal court until he has given the

state courts “one full opportunity to resolve any constitutional issues by invoking one complete


statutory limit. Gleason v. Welborn, 42 F.3d 1107, 1112 (7th Cir. 1994).
CONCLUSION

Petitioner's habeas petition is denied.

ENTER:

fQ)
4ahpefe———
REBECCA R. PALLMEYER
United States District je

Dated: January 27, 2005

18


above and to the left of the victim, as Siler’s grand jury testimony described Petitioner's position.
Id, at 675, 708 N.E.2d at 435.

The Appellate Court also addressed Petitioner's contention that Siler’s testimony was
“inherently untrustworthy” because of her “$50-a-day heroin habit" and her role as an accomplice.
(Section 2255 Petitioner, Ground |.) As discussed above, Petitioner has waived his claim that
Siler's testimony was inherently untrustworthy and insufficient to support a conviction because of
her role as his accomplice. With respect to her use of narcotics, the Appellate Court acknowledged
that “the testimony of a narcotics addict must be closely scrutinized,” but observed that such
testimony may be sufficient to sustain a conviction “if credible in view of the surrounding
circumstances.” People v. Morrow, 203 Ill. App. 3d at 678, 708 N.E.2d at 436 (citations omitted).
In holding that Siler’s prior testimony was sufficient, the Appellate Court stressed that the jury was
made aware of her addiction and that Siler indicated in both her statement to the police and her
grand jury testimony that she was not under the influence of narcotics at the time she gave those
statements. /d. at 678, 708 N.E.2d at 436. In addition, an Assistant State’s Attorney testified that
she was not under the influence of drugs when she made the written statement or when she
testified before the grand jury. /d. at 678, 708 N.E.2d at 436. Having heard this evidence, the jury
“weighed the evidence and assessed Siler’s credibility. By its verdict, the jury determined that Siler
was telling the truth when she made her prior statements and lying at trial.” /d. at 676-77, 708 N.E
2d at 435 (citations omitted). After considering the jury’s knowledge of Siler’s drug addiction and
the evidence corroborating her initial statements, the Appellate Court concluded that the State had
presented sufficient evidence to establish Petitioner's guilt beyond a reasonable doubt, and that
there was “nothing in the record to justify the substitution of [the Appellate Court’s] judgment for
that of the jury with respect to Siler’s credibility.” /d. at 677, 708 N.E. 2d at 436.

The Illinois Appellate Court applied the appropriate constitutional standard in considering
the sufficiency of the evidence supporting Petitioner's conviction, and did so reasonably. The court

10


to move for a directed verdict; (3) failure to interview and prepare a cross-examination of Siler; (4)
failure to adequately investigate the case; (5) failure to object to improper evidence and argument;
(6) coercion of Petitioner into choosing a jury trial and testifying on his own behalf, and (7)
commission of “a host of additional prejudicial errors.” Finally, Petitioner alleges that his 60-year
sentence was excessive, because it was based, in part, on the since-vacated armed robbery
conviction.

tM. Exhaustion and Procedural Default

Respondent acknowledges that because Petitioner is precluded from pursuing any further
remedies in the state courts, he has exhausted his state court remedies. (Respondent's Answer,
at 8.) Respondent argues, however, that several of Petitioner's claims have been defaulted by his
failure to give the state courts a full and fair opportunity to resolve them. Specifically, Respondent
urges that Petitioner has failed to give the state courts such an opportunity to respond to his claim
of insufficiency of the evidence as related to McComb’s acquittal and Siler’s role as an accomplice,
as well as a number of his ineffective assistance of counsel claims.

With respect to those ineffective assistance of counsel claims not barred by procedural
default, Respondent asserts that any challenges to trial counsel's failure to interview Siler and
adequately investigate the case are barred under the independent and adequate state grounds
doctrine. Respondent urges, further, that Petitioner's claims relating to the admissibility of evidence
and the propriety of the accountability murder instruction are not appropriate for habeas review
because such state law errors may not form the basis for federal habeas relief.

A. Insufficiency of Evidence

Petitioner's first claim challenges the sufficiency of the evidence supporting his conviction.
Specifically, Petitioner objects that the testimony of Ramona Siler, which, in addition to having been

recanted, he claims is “uncorroborated” and “inherently untrustworthy,” and argues that the


round of the state's established appellate process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (7th
Cir. 1999). Nor is it sufficient for the petitioner merely to have been through a full round of state
court appeals; rather, he must “present the state courts with the same claim he urges upon the
federal courts.” Picard, 404 U.S. at 276 (citations omitted); Rodriguez v. Scillia, 193 F.3d 913, 917
(7th Cir. 1999). Specifically, a petitioner is required to set forth his claims “in such a way as to fairly
alert the state court to any applicable [federal] constitutional grounds for the claim.” Bocian, 101
F.3d at 469 (citations omitted). A petitioner for habeas relief must submit “both the operative facts
and the controlling legal principles of a constitutional claim” before properly seeking habeas review
in the federal courts. /d.
U. Habeas Petition

On June 30, 2003, Petitioner filed a pro se petition for writ of habeas corpus in this court.
His petition alleges several violations of his rights, many of which were raised in earlier
proceedings. First, Petitioner claims the State did not present sufficient evidence to convict him
of first degree murder beyond a reasonable doubt. Specifically, Petitioner argues that his
conviction should be overturned because it was based “solely on the uncorroborated prior
inconsistent statements” of an accomplice who not only disavowed those statements on the stand,
but also had a $50-a-day heroin habit. In addition, Petitioner argues that the court's acquittal of
Alanda McComb on the same facts raises a reasonable doubt as to his own guilt. Petitioner's
second claim is that his right to a fair and impartial trial was violated by the court’s admission of
evidence of his own heroin use and his role as Siler’s pimp. Petitioner also claims that testimony
about the victim's wife and young children was prejudicial and interfered with his right to a fair trial.
Third, Petitioner claims that the court erred in giving the jury an accountability murder instruction.
Petitioner also raises ineffective assistance of counsel claims on the basis of his trial counsel’s: (1)

failure to use two pre-trial statements of Ramona Siler that he claims are exculpatory; (2) failure


(‘Fundamental miscarriage of justice” requires a showing that, absent the constitutional violation,
“it is more likely than not that no reasonable juror would have convicted him.”) (citing Schlup v.
Delo, 513 U.S. 298, 329 (1995)).

Petitioner did raise his remaining insufficiency of the evidence claims on direct appeal to
the Illinois Supreme Court. Because the Appellate Court considered and rejected Petitioner's
claims on direct appeal, this court will not grant habeas relief unless Petitioner shows that the
Appellate Court's decision was contrary to, or and unreasonable application of, federal law, or was
an unreasonable application of the facts in light of the evidence. 28 U.S.C. § 2254(d)(1) and (2).
In the present case, the Illinois Appellate Court applied the correct reasonable doubt standard for
criminal convictions: “The standard for challenging the sufficiency of the evidence is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” People v. Morrow,
303 Ill. App. 3d at 675, 708 N.E.2d at 434. The Appellate Court cited People v. Collins, 106 Ill. 2d
237, 261, 478 N.E.2d 267, 277 (ill. 1985), which in turn adopted the applicable United States
Supreme Court standard as set out in Jackson v. Virginia, 442 U.S. 307 (1979). Id.

Having identified the correct constitutional standard, the Appellate Court did not apply the
standard unreasonably. The court refuted Petitioner's contention that his conviction was based
solely on the Siler’s statements by pointing to a number of factors that corroborated her story. For
example, Siler’s account was corroborated by the condom wrapper recovered from the car, as well
as the condom found on the victim’s body, which were the same brand as the condoms found in
Siler’s purse. People v. Morrow, 203 Ill. App. 3d at 675, 708 N.E.2d at 435. In addition, the court
cited the straw on the floor of the car®, which Siler had identified as belong to her, the victim's

wallet being found near the scene, and the medical examiner's testimony that the shooter was

5 The Appellate Court’s opinion doeso not elaborate, but the court presumes this was a

drinking straw.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MITCHELL MORROW,
Petitioner,

No. 03 C 4515

EUGENE McADORY, Warden, Menard
Prison

Judge Rebecca R. Pallmeyer

Respondent.

MEMORANDUM OPINION AND ORDER

In April 1996, following a four-day trial in Illinois state court, a jury convicted Petitioner
Mitchell Morrow of first degree murder and armed robbery. The Circuit Court of Cook County
sentenced him to concurrent terms of 60 years of imprisonment for murder and 20 years for armed
robbery. The Illinois Appellate Court upheld the conviction for murder, but reversed the robbery
conviction, holding that the evidence did not support an armed robbery conviction under the state’s
accountability theory. People v. Morrow, 303 Ill. App. 3d 671, 708 N.E.2d 430 (1st Dist. 1999).
The Illinois Supreme Court denied leave to appeal. People v. Morrow, 184 lil. 2d 567, 714. N.E.2d
531 (1999). Morrow’s petitions for post-conviction relief were also denied, without an evidentiary
hearing. (Order of Illinois Appellate Court, People v. Morrow, No. 1-00-3878, Ex. K to
Respondent's Answer; People v. Morrow, 202 Ill. 2d 644, 787 N.E.2d 165 (2002), Ex. M to
Respondent's Answer.) Petitioner now seeks a writ of habeas corpus under 28 U.S.C. § 2254, on
a number of grounds, including insufficiency of evidence and ineffective assistance of counsel. For
the reasons explained below, the petition is denied.

BACKGROUND

A federal court reviewing a petition for writ of habeas corpus under 28 U.S.C. § 2254


Although evidence of past criminal acts is inadmissible to show the propensity of the
defendant to commit such acts, Respondent has articulated a number of bases supporting the
admission of evidence establishing Petitioner's drug use and “pimping,” including that Petitioner's
heroin habit provided him a motive to rob the victim and that his relationship as pimp to Siler
connected Petitioner with the events at Blackhawk Park.® (Ex. C to Respondent’s Answer, at 36,
39.) The Appellate Court held that this evidence was properly admitted by the trial court not to
show the propensity of the defendant to commit the crime, but rather, for the purpose of showing
defendant's motive. People v. Morrow, 303 Ill. App. 3d at 680, 708 N.E.2d at 438. Regarding the
evidence of Petitioner's past use of aliases, the Appellate Court held that although such evidence
was not material to any issue in the case and thus should not have been admitted, the admission
did not constitute reversible error. /d. at 680, 708 N.E.2d at 438. Finally, the Appellate Court held
that what it described as the “limited reference” to the victim's wife and two children “did not cause
substantial prejudice” necessitating a new trial. /d. at 680, 708 N.E.2d at 438

The court does not review these evidentiary decisions de novo. Rather, Petitioner has the
burden of demonstrating that the Illinois Appellate Court’s decision was contrary to, or employed
an unreasonable application or, clearly established federal law as determined by the United States
Supreme Court. 28 U.S.C. § 2254(d). With this in mind, the court denies the petition for habeas
relief on these grounds. Although the trial court may have erred in admitting prejudicial evidence
of questionable relevance, Petitioner has not met the burden of showing that the Appellate Court's
analysis is at odds with clearly established federal law, nor that any errors likely changed the
outcome of his trial.

Cc. Accountability Murder Instruction

Petitioner contends that the court erred in giving the jury an accountability murder

8 This court notes, in addition, that Petitioner's relationship with Siler arguably explains her

decision to recant her earlier testimony.

12


concludes its decision cannot be reversed in a federal habeas review.

B. Prejudicial Evidence

Petitioner claims that the court erred when it allowed the prosecution to introduce prejudicial
other-crimes evidence to show motive. Specifically, he argues that the admission of evidence that
he used heroin, that he worked as a pimp to finance his drug use, and that he had used a series
of aliases, violated his right to a fair and impartial trial. In addition, Petitioner challenges the
admission of testimony that the victim was survived by a wife and two young children.

Respondent argues that this issue, involving the admissibility of evidence under Illinois law,
is not cognizable for federal habeas review. Federal courts can grant habeas relief only where the
incarceration violates federal statutory or constitutional faw. 28 U.S.C. § 2254(a); Wainwright v.
Goode, 464 U.S. 78, 83-84 (1983). Thus, as matters of state law, state court evidentiary rulings
rarely serve as a proper basis for granting a writ of habeas corpus. Haas v. Abrahamson, 910 F.2d
384, 389 (7th Cir. 1990); see also Howard v. O'Sullivan, 185 F.3d 721, 723-24 (7th Cir. 1999).
Habeas relief is appropriate only if the erroneous evidentiary rulings were “so prejudicial that [they]
compromised the petitioner’s due process right to a fundamental fair trial. This means that the
error must have produced a significant likelihood that an innocent person has been convicted.”
Anderson v. Stemes, 243 F.3d 1049, 1053 (7th Cir. 2001) (quoting Howard, 185 F.3d 721, 723-24).

In considering the alleged errors under this standard, the court must examine “the entire
record, paying particular attention to the nature and number of alleged errors committed; their
interrelationship, if any, and their combined effect; how the trial court deal with the errors, including
the efficacy of any remedial measures; and the strength of the prosecution’s case.” Anderson, 243
F.3d at 1053 (quoting Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir. 2000)). Against this background,
the court must determine whether “but for the errors, the outcome of the trial probably would have

been different.” Alvarez, 225 F.3d at 825.

11


acquittal of his co-defendant Alanda McComb raises a reasonable doubt as to his own guilt. The
Illinois Appellate Court rejected this claim on the merits, concluding that Siler’s statements were
supported by corroborating evidence and that her prior inconsistent statement given under oath to
the grand jury, was sufficient to support the murder conviction. People v. Morrow, 303 Ill. App. 3d
at at 676-77, 708 N.E.2d at 435-36. The Appellate Court also concluded that the evidence against
Petitioner was much stronger than that against his acquitted co-defendant insofar as Petitioner was
the shooter and had a long-time relationship with Siler. /d. at 437-38.

As an initial matter, Petitioner failed to raise two of his insufficiency claims in his petition for
leave to appeal to the Illinois Supreme Court. Although Petitioner raised the issues of McComb's
acquittal and the effect of Siler’s role as accomplice on her testimony in his direct appeal, he did
not include those issues in his petition for leave to appeal to the Illinois Supreme Court. A
petitioner's failure to raise habeas claims on direct appeal is not always fatal to his petition, if the
state courts had the opportunity to review his claims in another context. Momient-E/ v. DeTella,
118 F.3d 535, 539 (7th Cir. 1997). Here, Petitioner did move for post-conviction relief before the
Circuit Court of Cook County, but because he did not raise insufficiency of the evidence as a basis
for post-conviction relief, these claims are procedurally defaulted.

In limited circumstances, a federal court may review a claim even where the habeas
petitioner has procedurally defaulted the claim by failing to present it fully and fairly to the state
courts. Specifically, a court will review an otherwise procedurally defaulted claim where the
petitioner demonstrates cause for the default and actual prejudice as a result of the failure, or
demonstrates that the failure to consider the claims will result in a fundamental miscarriage of
justice. Dellinger v. Bowen, 301 F.3d 758, 764 (7th Cir. 2002) (citing Rodriguez v. Scillia, 193 F.3d
913, 917 (7th Cir. 1999)). Here, however, Petitioner cites no cause for his failure to properly raise
the claims in the state courts, nor does he demonstrate that a fundamental miscarriage of justice
will result from the court's failure to consider the claim. Murray v. Carrier, 477 U.S. 478, 492 (1986)

8


surviving wife and two children denied Petitioner a fair trial; (5) whether the accountability murder
jury instruction was appropriate; (6) whether trial counsel was ineffective for failing to use two pre-
trial statements of Siler, failing to move for a directed verdict, and making “a host of additional
prejudicial errors,” and (7) whether sufficient evidence was presented to support the armed robbery
conviction. The Illinois Appellate Court affirmed the murder conviction, but reversed the conviction
for armed robbery, concluding that there had not been sufficient evidence that Petitioner even knew
that a robbery was taking place. People v. Morrow, 303 Ill. App. 3d at 683, 708 N.E.2d at 440.

Petitioner, again represented by counsel, then filed a petition for leave to appeal (PLA) to
the Supreme Court of Illinois, rasing the following issues: (1) insufficiency of evidence when the
central evidence consisted of an uncorroborated prior inconsistent statement of a heroin addict,
whose trial testimony exonerated the defendant; (2) the admission of evidence of other crimes to
show motive; and (3) ineffective assistance of counsel. The Illinois Supreme Court denied the PLA
without comment on June 2, 1999. (Ex. G to Respondent's Answer.)

Prior to the denial of the PLA, Petitioner's counsel filed a petition for post-conviction relief
with the Circuit Court of Cook County on April 23, 1999. (Ex. H to Respondent’s Answer.) In this
motion, Petitioner claimed that his constitutional rights to due process, a fair trial, and effective
assistance of counsel were violated by trial counsel's: (1) failure to interview the State’s only
witness and adequately prepare for cross-examination; (2) general failure to investigate the case;
(3) failure to object to improper other-crime evidence and argument; and (4) refusal to respect
Petitioner's desire not to testify and for a bench trial. Petitioner also claimed that his sentence was
excessive and his due process rights were violated by the undue influence his improper armed
robbery conviction had on the court. The trial court dismissed the post-conviction petition without
an evidentiary hearing. Petitioner, again through counsel, appealed this dismissal, arguing that the
trial judge erred in dismissing the petition because it had raised “the gist of a constitutional claim”
that trial counsel was ineffective in failing to interview or investigate the sole eyewitness to the

4


and a motive for robbery.” /d. at 682, 708 N.E. 2d at 439. Inthe other statement, Siler told a public
defender that on the day she was hospitalized after being beaten up, she called the State’s
Attorney and told someone that she lied to the police and at the grand jury in order to be released
from jail.® /d. at 682, 708 N.E. 2d at 439. The Appellate Court held that counsel’s decision not to
use this second statement was understandable, given the “clear implication that Siler had been
beaten up so that she would change her testimony against defendant...” /d. at 682, 708 N.E. 2d
at 439. The court also noted that it was unclear whether trial counsel even knew of this statement.
/d. The court does not find this analysis to be an unreasonable application of federal law. In fact,
Petitioner does nothing to explain how these statements point to his innocence or suggest that had
his attorney used them, the outcome of the proceeding would have been different. Strickland, 466
U.S. at 694.

Petitioner also claims that his attorney was ineffective for failing to move for a directed
verdict at the close of the State’s case. The Illinois Appellate Court again employed the Strickland
test, holding that since the evidence presented by the State “was more than sufficient to sustain
its burden at the close of its case,” Petitioner suffered no prejudice. /d. at 683, 708 N.E. 2d at 439-
40. Again, while the court might conclude that a motion for a directed verdict would have been
prudent, the Appellate Court's decision that failure to do so does not meet the Strickland standard
does not constitute an unreasonable application of federal law under § 2254(e). The evidence was
not so obviously inadequate as to allow the court to hold that “but for” counsel's failure to move for
a directed verdict, “the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694.

Nor is the court moved by Petitioner's argument that counsel was ineffective for failing to

interview Ramona Siler prior to the trial and failing to investigate the case adequately. Petitioner

8 The record does not indicate when or how this incident arose.

15


the Circuit Court of Cook County denied these claims, he failed to include them in his petition for
leave to appeal to the Illinois Supreme Court. (Exs. B & F to Respondent's Answer.) Petitioner did
raise these issues in his initial post-conviction petition in Illinois state court, but again failed to raise
them in his Petition for Leave to Appeal from the state court's denial of his post-conviction petition.
(Exs. H & L to Respondent's Answer.) Because Petitioner did not give the Illinois courts a full
opportunity to address this claim, and shows no cause for, or prejudice for his default, the claim
is waived and may not be raised in a federal habeas petition. 28 U.S.C. § 2254(e)(2); White v.
Godinez, 192 F.3d 607, 608 (7th Cir. 1999) (holding that failure to include ineffective assistance
of counsel claims in discretionary post-conviction appeal to state supreme court resulted procedural
default barring resort to federal habeas corpus relief).

E. Excessive Sentence

Petitioner's final claim is that the appellate court's reversal of the armed robbery conviction
entitles him to a new sentencing. Petitioner asserts that, in sentencing him to the maximum 60-
years sentence for murder, the court was unduly influenced by the since-overruled armed robbery
conviction. In its order affirming the trial court's denial of post-conviction relief, the Illinois Appellate
Court held that Petitioner had waived the claim by failing to raise the issue on direct appeal
(Illinois Appellate Court Order, dated June 7, 2002, Ex. K to Respondent's Answer, at 10-11.)

The waiver determination constitutes an independent and adequate state ground, and as
Petitioner does not claim cause or prejudice, the court cannot reach the merits of the claim. See
Harris, 489 U.S. at 262 (“an adequate and independent finding of procedural default will bar federal
habeas review of the federal claim, unless the habeas petitioner can show ‘cause’ for the default
and ‘prejudice attributed thereto,’ or show that the failure to consider the federal claim will result
in a ‘fundamental miscarriage of justice.”). Moreover, even absent the waiver, a federal court will

not generally review a state sentencing determination which, as is the case here, falls within the

17


statement to detectives and an assistant State’s attorney.* She later testified before the grand
jury.* In both her statement in September and grand jury testimony, Siler recounted the events
described above. Largely on the basis of Siler’s testimony, a grand jury indicted Petitioner, along
with McComb and Paschal, for murder and armed robbery. At trial, however, Siler recanted her
pervious statements, denied knowing the victim, and denied being with him on the night of the
murder. She did not deny that she gave the pretrial statement and grand jury testimony, however.
The prosecution introduced these previous statements at trial, as well as physical evidence
including a condom obtained from the body and a straw from the victim’s car. On the advice of his
attorney, Morrow testified in his own defense.

After a four-day jury trial in April 1996, Petitioner was convicted of both murder and armed
robbery. Co-defendant Paschal was found guilty of murder and armed robbery by a different jury,
which sat jointly with Petitioner's jury during some of the testimony. McComb, who had elected a
bench trial, was acquitted by the judge who presided over the trial of all three co-defendants.

Following his trial and conviction, Petitioner appealed, raising seven issues: (1) whether
there was sufficient evidence supporting the conviction where (a) the only evidence linking him to
the crime was the uncorroborated, prior inconsistent statements of a heroin-addicted prostitute who
disavowed her statements at trial, (b) the prosecution’s main witness was a heroin addict and an
accomplice, and (c) a co-defendant tried on the same evidence was acquitted; (2) whether he was
denied a fair trial by the admission of prejudicial other-crimes evidence, namely that he used
heroin, that he worked as a pimp to finance his drug use, and that he had used a series of aliases;
(3) whether the prosecutor's repeated references to Morrow’s past crimes during closing argument

denied him a fair and impartial trial; (4) whether the admission of testimony regarding the victim’s

$ The Appellate Court’s decision does not reveal how the police learned of Siler’s knowledge

or involvement in the incident.

4 Again, the Appellate Court does not indicate the date of Siler's grand jury testimony.

3


presumes that the state court's factual findings are correct, 28 U.S.C. § 2254(d); Kuhlmann v.
Wilson, 477 U.S. 436, 441 (1986). The court therefore adopts the factual findings of the Illinois
Appellate Court, set forth in its March 1, 1999 opinion. People v. Morrow, 303 Ill. App. 3d 671, 708
N.E.2d 430 (1st Dist. 1999).

During the early morning of August 28, 1994, Kazmierz Kosinski left a friend at a bar and
went to the area of Cicero and Dickens, in Chicago, where he solicited and hired two prostitutes
to perform sex for $25 each.’ The prostitutes were Ramona Siler, whom Kosinski had hired
previously, and Birandi Paschal.? Kosinski drove Siler and Paschal to an area near Blackhawk
Park, on the northwest side of Chicago. Unbeknownst to Kosinski, Petitioner, who was Siler’s pimp
and boyfriend, and Alanda McComb, who was Paschal's pimp, followed in another car. After
Kosinski parked the car, Siler began performing oral sex and Paschal climbed up on Kosinski’s lap
and pulled her shirt up to allow Kosinski to suck her breasts.

At some point during these activities, Siler saw Paschal try to take Kosinski’s wallet from
his pocket. When Kosinski realized that Paschal was attempting to pick his pocket, he called her
a “black bitch” and the two began to struggle. Siler called for help, and Petitioner and McComb ran
to the car. McComb punched Kosinski, allowing Siler and Paschal to escape to Petitioner's car.
Siler saw Petitioner shoot Kosinski, who later died.

After Petitioner and McComb returned to the car, McComb told Paschal to divide up the
$160 obtained from Kosinski's wallet. One of the four passengers tossed the wallet from the car
window as they drove away, and it was later recovered from a mailbox a few blocks from the scene.

On September 5, 1994, after initially denying knowledge of the incident, Siler gave a

' This version of events is based on the statements of Ramona Siler, one of the two

prostitutes.

2 The record does not identify how many times Kosinski had hired Siler prior to this incident.

2


instruction where there was no evidence supporting guilt on a theory of accountability.’ The
Appellate Court held that given the “overwhelming evidence” that Petitioner was the principal actor
and shooter in the murder, any error in giving the accountability instruction was harmless. People
v. Morrow, 303 Ill. App. 3d at 681, 708 N.E.2d at 439. In any event, “the fact that the instruction
was allegedly incorrect under state law is not a basis for habeas relief.” Estelle v. McGuire, 502
U.S. 62, 72 (1991); see also Gilmore v. Taylor, 508 U.S. 333, 344 (1993) (“. . . instructional errors
of state law generally may not form the basis for federal habeas relief.”). Therefore, the petition
for habeas relief on this basis is denied.

D. Ineffective Assistance of Counsel

Petitioner argues that his Sixth Amendment right to counsel was violated, raising a number
of ineffective assistance of counsel claims. Specifically, he claims that counsel was ineffective for
(1) failing to interview Ramona Siler, (2) failing to use two of Ramona Siler’s pretrial statements,
and (3) failing to investigate the case. Petitioner also claims that counsel was ineffective for failing
to move for a directed verdict, failing to object to improper evidence and argument, coercing
Petitioner into choosing a jury trial, telling Petitioner that he must testify, and committing “a host of
additional prejudicial errors.”

As an initial matter, Petitioner cannot obtain habeas relief on the basis of unidentified
claims. Although the court will liberally construe pro se petitions under Haines v. Kerner, 404 U.S.
519, 520 (1972), Petitioner still bears the burden of demonstrating his entitlement to habeas relief.

Having failed to meet that burden, Petitioner cannot obtain habeas relief in regard to his attorney's

7 The record does not indicate the exact language of the instruction given by the trial court,

however, the Illinois Pattern Jury Instructions employ the provide the following language: “A person
is legally responsible for the conduct of another person when, either before or during the
commission of an offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the
other person in the planning or commission of the offense.” Ill. Pattern Jury Instr. - Criminal 5.03
(4th ed.). The court notes its uncertainty that the accountability instruction even pertained to
Petitioner. It appears possible that the instruction related to his co-defendant Paschal, who was
convicted by a separate jury.

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first raised these claims in his petition for post-conviction relief. In its order affirming the trial court's
denial of post-conviction relief, the Illinois Appellate Court held that the issue was barred by res
judicata, because the ineffective assistance of counsel claim had already been raised and decided
on direct appeal. (lilinois Appellate Court Order, dated June 7, 2002, Ex. K to Respondent's
Answer, at 8-9.) The Appellate Court’s application of the res judicata doctrine constitutes as
independent and adequate state ground for its decision. As such, the court is barred from reaching
the merits of the claims. “An adequate and independent finding of procedural default will bar
federal habeas review of the federal claim, unless the habeas petitioner can show ‘cause’ for the
default and ‘prejudice attributed thereto,’ or show that the failure to consider the federal claim will
result in a ‘fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255, 262 (1989) (citations
omitted). Petitioner does not argue cause or prejudice here, and the court concludes that,
regardless of its own assessment of the performance of Petitioner's counsel, that performance
does not rise to the level of a “fundamental miscarriage of justice,” which requires a showing that,
absent the constitutional violation, “it is more likely than not that no reasonable juror would have
convicted him.” Murray v. Carrier, 477 U.S. at 492 (citing Schlup v. Delo, 513 U.S. 298, 329
(1995)). In any event, Petitioner fails to explain how he was prejudiced by his attorney's failure to
interview Siler before the trial. After all, Siler completely disavowed her story on the stand. It is
difficult to imagine that Petitioner's attorney could have been more effective than that. Nor does
Petitioner identify any exculpatory evidence his attorney would have unearthed had he conducted
a more extensive investigation into the case.

Finally, Petitioner faces procedural default with regard to his remaining ineffective
assistance of counsel claims, which he failed to raise in his state court post-conviction petition.
Specifically, Petitioner alleges that his trial counsel had (1) failed to object to improper evidence,
(2) coerced Petitioner into choosing a jury trial, and (3) told him that he had to testify in his own
defense. Petitioner raised these ineffective assistance of counsel claims on direct appeal, but, after

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