1

At the time Kelley filed his petition, he was incarcerated at the Menard Correctional Center. As a result,

pursuant to Rule 2(a) of the Rules Governing Section 2254 cases in the United States District Courts, the warden of

that facility, Eugene McAdory, was the proper party respondent. After the briefing on Kelley’s habeas petition was

concluded, Kelley was transferred to the Stateville Correctional Center in Joliet, Illinois, at which Terry McCann

(“McCann”) is Warden. Accordingly, since McCann is now the State officer in custody of Kelley, he is substituted

as the proper party respondent. See Rule 2(a) of the Rules Governing § 2254 Cases in the United States District

Courts; Fed. R. Civ. P. 25(d)(1); Rumsfeld v. Padilla, 542 U.S. 426, 435, 124 S. Ct. 2711, 159 L. Ed. 2d 513 (2004)

(citing Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996)).

 UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

United States of America )

ex rel. REGINALD KELLEY (K-54728), )

)

Petitioner, )

) No. 03 C 5111

vs. )

) Judge Joan H. Lefkow

TERRY McCANN, Warden, )

Stateville Correctional Center, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

In his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, petitioner

Reginald Kelley (“Kelley”) challenges his convictions for first degree murder, attempted first

degree murder and armed violence. The Respondent Terry McCann, the Warden of the

Stateville Correctional Center (“Respondent”), has filed an answer to the petition.1 For the

reasons stated below, Kelley’s petition is denied.

HABEAS STANDARD

Pursuant to the Antiterrorism and Effective Death Penalty Act (“AEDPA”), this court

must deny Kelley’s petition for a writ of habeas corpus with respect to any claim adjudicated on

the merits in the state court unless the state court’s decision “was contrary to, or involved an
2

unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d); Price v. Vincent, 538 U.S. 634, 638, 123 S.

Ct. 1848, 155 L. Ed. 2d 877 (2003). 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 on a question of law,” “if the state court confronts facts that are materially

indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to

[it],” or if the state court either unreasonably extends a legal principle from [Supreme Court]

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.” Williams v. Taylor, 529 U.S. 362, 405,

120 S.Ct. 1495, 146 L. Ed. 2d 389 (2000). 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 state court’s decisions, however, the court must determine whether

Kelley fairly presented his federal claims to the state courts, as any claim not presented to the

state’s highest court is deemed procedurally defaulted. O’Sullivan v. Boerckel, 526 U.S. 838,

844-45, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). Moreover, “[a] federal court will not review a

question of federal law decided by a state court if the decision of the state court rests on a state

procedural ground that is independent of the federal question and adequate to support the

judgment.” Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002). A federal court may not grant
2

When considering a habeas petition, 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); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). Kelley has not presented clear and convincing

evidence to rebut this presumption. Therefore, the court adopts and sets forth hereafter the Illinois Appellate Court’s

recitation of facts in People v. Kelley, No. 1-97-1069 (2nd Div. 1999) (Resp. Ex. C) (Kelley I) and People v. Kelley,

No. 1-00-0764 (1st Div. 2002) (Resp. Ex. J) (Kelley II).

3

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 justice. Coleman v. Thompson,

501 U.S. 722, 750, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991); Anderson v. Cowen, 227 F.3d

893, 899 (7th Cir. 2000).

BACKGROUND

On July 25, 1994, at approximately 10:30 p.m., Ebony Collins, her three-year old son

Kevin Taylor, Jr. (“K.T.”), her father Ronnie Cole, her friend Lashon Johnson, and her brother

Ronnie Collins were gathered at Ms. Collins’s mother’s house, located on Exchange Street on

the southeast side of Chicago, Illinois.2

 The group decided to drive to a grocery store located at

79th Street and Yates Boulevard in a white Chevy Caprice. K.T. sat in between Ms. Collins,

while Ms. Johnson sat behind Mr. Cole. K.T.’s head was visible from the rear of the vehicle, as

it extended above the front seat.

After leaving her mother’s house, Ms. Collins drove southbound on Yates Boulevard to

79th Street. Ms. Collins and Ms. Johnson went into the store, purchased some items and returned

to their respective seats in the car. Thereafter, Ms. Collins pulled out onto Yates Boulevard and

proceeded northbound to 75th Street, where she stopped the car for a red light. As the vehicle

stopped, Ms. Collins, Mr. Collins and Mr. Cole noticed a group of approximately six people

standing on the northeast corner, approximately 25 feet away. Ms. Collins and Mr. Cole noticed
4

a boy whose hair was in french braids and who was wearing red shorts and a white T-shirt with

stripes on the sleeve staring at the car. The boy in the red shorts and another boy dressed in dark

clothes broke away from the group and crossed the street in front of the car, walking toward the

northwest corner. While crossing the street and still staring at the car, the boy in the red shorts

began lifting up his shirt in the area of his waistband.

The light turned green and Ms. Collins began to drive through the intersection. Ms.

Collins and Mr. Collins noticed the boy in the red shorts throw gang signs in the air. When the

car was approximately 10 feet away from the boy, Ms. Collins heard someone through the open

driver’s side car window say, “Ain’t that the motherfucking car right there?” At the same time,

Mr. Collins saw the face of the boy in the red shorts and both Mr. Collins and Ms. Johnson

watched the boy “fiddle with his shirt,” revealing a black object tucked in the waistband of his

shorts. The car was approximately 50 feet away from the boys when Ms. Johnson saw the right

arm of the boy in the red shorts extend to a 90-degree angle and further saw three flashes exit

from where his arm was extended. Ms. Collins, Mr. Collins and Ms. Johnson heard three

gunshots, which they described as sounding like a car backfiring; Mr. Cole heard approximately

two shots. Then, the back windshield shattered. Mr. Cole yelled that he had been hit and K.T.

began to cry. Ms. Johnson saw blood on Mr. Cole’s arm and, when K.T. was lifted up, she saw

blood from K.T.’s head. Mr. Collins saw two holes in his father’s arm and a hole in the back left

side of his nephew’s head. Ms. Collins looked at K.T. and saw that he had been shot in the back

of the head. She then became hysterical and Mr. Cole told her to let Mr. Collins drive them to

the hospital.
5

Once at Jackson Park Hospital, Mr. Cole was treated for multiple gunshot wounds. After

being transferred from Jackson Park Hospital to Wyler’s Hospital, K.T. died from a single

gunshot wound to the head. That same evening, police officers recovered six .9 millimeter shell

casings..

On July 29, 1994, Officer James Oliver picked up Ms. Collins and her sister Melissa in a

green Jeep Cherokee with dark tinted windows. The three drove to the Gatlings Funeral Home,

located at 102nd Street and Halsted Avenue, and parked across the street, approximately 50 to 75

feet from the entrance. Approximately 200 to 300 people, from ages 16 to 26, were present. The

people were predominantly young black men of various heights, weights, hairstyles and clothes. 

After 15 or 20 minutes, Ms. Collins identified Kelley and Jernel Brown as two of the boys

present on July 25, 1994. Kelley was wearing a white T-shirt, black pants and gym shoes with

red shoestrings, and his hair was in french braids. Ms. Collins recognized Kelley’s face, and

both she and Officer Oliver identified Kelley in open court as the boy Ms. Collins identified at

the funeral home.

While at the funeral home, Officer Oliver called for assistance and Officer Edward

Sonne, along with his partner, responded. As Officer Sonne exited his car and began to

approach Kelley, Kelley began walking away. Officer Sonne asked Kelley to stop, which he did,

and the officer did a protective patdown of Kelley, recovering a loaded .25-caliber

semiautomatic handgun from Kelley’s right pants pocket.

On August 2, 1994, at approximately 2 p.m., Ms. Collins and Mr. Cole viewed the same

lineup at Area 2 police headquarters, both consisting of seven black males in their late teens or

early twenties, all with dark complexions. The participants in the lineup were approximately 5
6

feet 8 inches to 6 feet tall. Additionally, three of the participants had braided hair. Ms. Collins

identified Kelley and Mr. Brown; Mr. Cole was unable to identify anyone. On that same day, at

approximately 6:15 p.m., Mr. Collins viewed a similar lineup with Detective John Ervin. Mr.

Collins identified Kelley as the boy staring at the car; he identified him again in open court

during the trial. Mr. Collins only tentatively identified Mr. Brown as the boy in the dark clothes. 

On August 11, 1994, Ms. Johnson viewed a similar lineup prepared by Detective Ervin;

however, Mr. Brown was unable to participate. Ms. Johnson identified Kelley again.

Assistant State’s Attorney (“ASA”) Peter Faraci of the felony review unit testified that,

on August 2, 1994, he was assigned to the murder of K.T. At approximately 5:05 p.m., he went

to an interview room where Kelley was present with Detective Ervin. ASA Faraci introduced

himself and recited to Kelley his Miranda rights from memory. After indicating that he

understood his rights as recited, Kelley waived his rights and wanted to speak. Kelley informed

ASA Faraci that, on July 25, 1994, at approximately 10:45 p.m., he was either at his aunt’s house

or with friends in the alley hanging out. Two days prior, his cousin, Brian Hill, a “Black P

Stone” gang member, was shot and killed in a drive-by shooting by a “GD,” a rival gangmember. 

Kelley further stated to ASA Faraci that he believed that the drive-by shooting incident involved

a light-colored or white, four-door Chevy. However, he denied knowledge of the location or

facts relating to K.T.’s homicide.

ASA Catherine Hufford testified that, on August 3, 1994, at approximately 8 p.m., Kelley

was brought to the felony review room in Area 2 police headquarters to speak with her. She

introduced herself and recited to Kelley his Miranda rights from memory. After indicating that

he understood his rights as recited, Kelley again waived his rights and wanted to speak. Kelley
7

originally told ASA Hufford that he was a “Blackstone” or “Stone” gang-member and that the

Blackstones were at war with the Gangster Disciples over “turf.” He further stated that his

cousin, Brian Hill or “Ibir,” had been killed by a Gangster Disciple on July 23, 1994, and his

friend Alina had been shot in the same incident. Kelley denied being at 75th Street and Yates

Boulevard at the time of the murder. Rather, he asserted that he was at his aunt’s house at 6725

South Clyde Street at approximately 10:30 p.m. the night of the murder, smoking reefer and

drinking. Defendant stated his uncle “Rocks” came to get him, saw what he was doing and let

him stay outside; however, Kelley would not provide Rocks’ real name, address or telephone

number. Kelley further stated that his uncle Kash was visiting from Wisconsin and could verify

his presence. He then provided ASA Hufford a telephone number to contact Kash.

ASA Hufford asked Kelley if he was worried that the .25-caliber gun recovered by police

officers on July 29, 1994, was used in the shooting. Kelley responded, “No because I didn’t

have no nine millimeter.” ASA Hufford replied, “Who said it was a nine millimeter?” After

indicating that ASA Hufford told him the caliber of the weapon, to which she replied that she

had not, Kelley stated, “I should have listened to my mother and kept my mouth shut. I don’t

want to talk to you no more.” Kelley was then escorted out of the room.

Following the aforementioned testimony from the State’s witnesses, the parties entered

into a stipulation that Dr. Robert Kirschner, the medical examiner, would testify that K.T. died of

severe cerebral injuries secondary to the single gunshot wound to the head. The parties further

stipulated that a forensic expert by the name of Mr. Warner would testify that the bullet fragment

removed from K.T.’s head was not suitable for comparison and, thus, he would be unable to

testify as to its specific caliber. The State rested and the trial court granted Kelley’s motion for a
8

directed verdict as to count VIII, aggravated battery based upon the permanent disfigurement of

Mr. Cole.

Kelley presented four witnesses to corroborate Kelley’s alibi: Kash Tahmir, Enewamah

Tahmir, Melissa Williams and Angela Egeston. Additionally, Detective Jack Hines was called

to impeach Ms. Collins’ testimony that police officers only asked her what the perpetrators were

wearing when they arrived at the hospital on July 25, 1994, to question her.

On December 16, 1996, following closing argument, the trial court found Kelley guilty of

first degree murder, attempt (first degree murder) and armed violence. The trial court further

ordered the remaining aggravated battery and aggravated discharge counts to merge with the

attempt (first degree murder) count.

On February 20, 1997, after hearing and considering the presentence report, the

arguments, the evidence and the factors presented in aggravation and mitigation, the trial court

sentenced Kelley to an 80-year extended term sentence for the first degree murder charge, to be

served consecutive to a 20-year sentence for the attempt (first degree murder) charge, totaling

100 years’ imprisonment in the Illinois Department of Corrections. 

Thereafter, Kelley appealed to the Illinois Appellate Court, First District, raising the

following issues for review:

A) Whether petitioner was denied effective assistance of counsel when trial counsel

failed to investigate exculpatory evidence and interview witnesses;

B) Whether petitioner was denied effective assistance of counsel when trial counsel

failed to file a motion to suppress suggestive identification evidence;

C) Whether petitioner was denied effective assistance of counsel when counsel made

an improper statement during closing argument; and
9

D) Whether the trial court erred in allowing the grand jury transcript to be read into

the record during the sentencing hearing.

On March 31, 1999, the Illinois Appellate Court affirmed Kelley’s conviction and sentence. 

Following the appellate court’s decision, Kelley initiated proceedings in the Illinois Supreme

Court by filing a petition for leave to appeal. In his petition, Kelley raised for review the same

four issues he presented to the appellate court. On December 1, 1999, the Illinois Supreme

Court denied Kelley’s petition for leave to appeal. 

Kelley then filed a post-conviction petition for review, arguing that 1) his trial counsel

was ineffective in that he failed to move to dismiss the indictment as based on prejudiced

testimony; and 2) his appellate counsel was ineffective for failing to challenge the competency of

trial counsel on the same grounds. The trial court denied Kelley’s post-conviction petition,

finding that Kelley’s claims were res judicata and barred by the waiver doctrine. 

Kelley then appealed the denial of his post-conviction petition, claiming that 1) his

consecutive sentences should be modified to run concurrently; 2) sections 5-5-3.2(b)(4)(I) and 5-

8-4(a) of the Criminal Code are unconstitutional; and 3) the trial court’s sentence violated

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2002). On May 13,

2002 the Illinois Appellate Court, First District affirmed the denial of Kelly’s post-conviction

petition and rejected his Apprendi argument. 

Following the appellate court’s decision, Kelley initiated proceedings in the Illinois

Supreme Court by filing a petition for leave to appeal. In his petition, Kelley raised only the

Apprendi claim for review. The Illinois Supreme Court denied the petition for leave to appeal on

April 2, 2003.
10

Thereafter, Kelley filed the instant petition for writ of habeas corpus. In this petition,

Kelley raises the following claims:

1) He was denied effective assistance of counsel when trial counsel failed to

investigate and interview Melissa Collins and to move to suppress Ebony

Collins’s identification as based on improper assistance from Melissa Collins;

2) He was denied effective assistance of counsel when trial counsel failed to

investigate evidence concerning the caliber of the bullet removed from K.T.’s

head during the postmortem examination;

3) He was denied effective assistance of counsel when trial counsel failed to file a

motion to suppress the identifications of him by Ebony Collins, Ronnie Collins,

and Lashon Johnson as unreliable or the product of an unduly suggestive lineup;

4) He was denied effective assistance of counsel when counsel made an improper

statement during closing argument;

5) The trial court erred in allowing the grand jury transcript to be read into the

record during the sentencing hearing;

6) His sentence violates Apprendi;

7) He was denied effective assistance of counsel when trial counsel failed to move to

dismiss the indictment as based on prejudiced testimony;

8) He was denied effective assistance of appellate counsel when appellate counsel

failed to argue that trial counsel was ineffective by failing to move to dismiss the

indictment as based on false testimony.

DISCUSSION

A. Procedurally Defaulted Claims

Before this court can reach the merits of a federal habeas petitioner’s claims, he must

comply with two procedural requirements. See O’Sullivan, 526 U.S. at 848. First, he must

exhaust his state remedies. State remedies are exhausted if they are fully and fairly presented to

the state’s highest court for a ruling on the merits or when no means of pursuing review remain

available. See id. at 844-48 (citing 28 U.S.C. § 2254(c)); see also Wilson v. Briley, 243 F.3d
11

325, 327 (7th Cir. 2001). In this case, both Kelley and the respondent agree that Kelley’s claims

have been exhausted. 

Having satisfied the exhaustion requirement, the federal habeas petitioner must next

overcome the obstacle of procedural default. Procedural default occurs when a habeas petitioner

fails to present a constitutional claim to the highest state court to which it may be appealed in the

manner required by state law. See Boerckel, 526 U.S. at 845; see also Engle v. Isaac, 456 U.S.

107, 129, 102 S. Ct. 1558, 71 L. Ed. 2d 783 (1982) (state appellate courts must have chance to

mend their own fences and avoid federal intrusion). A habeas claim may also be procedurally

defaulted if the state court rests its judgment on an adequate and independent finding of

procedural default under state law. See Stewart v. Smith, 536 U.S. 856, 860, 122 S. Ct. 2578,

153 L. Ed. 2d 762 (2002). Under Illinois law, waiver of a claim by failing to raise it at the

appropriate point during trial or the appellate process is an independent and adequate state

ground. See Whitehead v. Cowan, 263 F.3d 708, 726-27 (7th Cir. 2001). 

Last, a federal court may not grant habeas relief on a procedurally defaulted claim unless

the petitioner can demonstrate cause for the default and actual prejudice or that failure to

consider the claim will result in a fundamental miscarriage of justice. See Coleman v.

Thompson, 501 U.S. at 750; Anderson v. Cowan, 227 F.3d 893, 899-90 (7th Cir. 2000).

 In this case, respondent argues that Kelley’s claim five is procedurally defaulted because

the Illinois Appellate Court found that Kelley waived it by failing to raise it in a written postsentencing motion with the trial court. Procedural default can occur when the state court

declined to address a claim because the petitioner failed to comply with a state procedural
12

requirement. Coleman, 501 U.S. at 729-30. A finding of waiver is sufficient to preclude federal

habeas corpus review. Harris v. Reed, 489 U.S. 255, 109 S. Ct. 1038, 103 L. Ed. 2d 308 (1989). 

 The Illinois Appellate Court stated that Kelley’s claim that the trial court abused its

discretion at the sentencing hearing by allowing the transcript of the grand jury proceedings to be

admitted was waived. In pertinent part, the appellate court stated, “[I]n failing to file a written

postsentencing motion with the trial court, as required, Kelley has waived any sentencing issues

on appeal.” Since the appellate court’s decision rests on the enforcement of a state procedural

rule, it cannot be reconsidered on a federal habeas petition. Accordingly, Kelley’s claim five is

procedurally defaulted.

Respondent next argues that Kelley’s claims seven and eight are procedurally defaulted

because he failed to fully and fairly present them to each appropriate state court before seeking

review in federal court. A full and fair presentment requires that a petitioner present both the

operative facts and controlling legal principles to the state court – a mere reference to a

constitutional issue is not enough. See Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir.

2001). Factors relevant to whether a habeas petitioner has fairly presented a claim to the state

courts include whether petitioner’s state court argument (1) relied on federal cases that engage in

constitutional analysis; (2) relied on state cases that apply a constitutional analysis to similar

facts; (3) asserted a claim in particular terms that call to mind a specific constitutional right; or

(4) alleged a pattern of facts well within the mainstream of constitutional litigation. See Wilson,

243 F.3d at 327. Federal courts do not automatically conclude that a habeas petitioner has fairly

presented his claim simply because he fulfills any one of these four factors. See Molterno v.
13

Nelson, 114 F.3d 629, 634 (7th Cir. 1997). Instead, courts must carefully consider the specific

facts of each case. See Bocian v. Godinez, 101 F.3d 465, 469 (7th Cir. 1996). 

Kelley does not dispute that he procedurally defaulted claims seven and eight. Instead,

Kelley attempts to show cause and prejudice for his failure to present those claims at every level

of the Illinois courts, arguing that ineffective assistance of counsel is the reason for his default. 

Kelley raised claims seven and eight in his post-conviction petition but failed to raise either

claim in his appeal of that petition. There is no right to effective counsel in postconviction

hearings, see Coleman, 501 U.S. at 756-57, and thus, the failure of counsel in postconviction

proceedings to raise issues does not constitute cause for default of those issues. 28 U.S.C. §

2254(I); Pitsonbarger v. Gramley, 141 F.3d 728, 737 (7th Cir. 1998) (citing Coleman, 501 U.S.

at 756-57). Since Kelley does not argue that federal review of his claims is necessary to prevent

a fundamental miscarriage of justice, he is barred from bringing these claims in federal habeas.

B. Ineffective Assistance of Counsel Claims

1. Failure to Investigate Melissa Collins

In his claim one, Kelley argues that he received ineffective assistance of counsel because

his trial counsel failed to investigate whether Melissa Collins “assisted” or “coached” her sister

Ebony Collins into identifying him as being present on the night of the shooting.

The Illinois Appellate Court, the last court to address this claim, properly identified the

two-part test employed in ineffective assistance of counsel claims. It stated that Kelley was

required to show that his trial counsel’s representation fell below an objective standard of

reasonableness and that a reasonable probability existed that the result of the proceedings would
14

have been different absent this inadequate representation. Strickland v. Washington, 466 U.S.

668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 

The Illinois Appellate Court rejected Kelley’s claim for two reasons: 1) there was no

evidence in the record establishing that Kelley’s trial counsel actually failed to interview and

investigate Melissa Collins; and 2) since two other witnesses to the shooting identified Kelley in

lineups and in open court, Kelley was not prejudiced even if his trial counsel failed to investigate

Melissa Collins. 

The appellate court’s conclusion that the outcome of Kelley’s trial would not have been

different even if his trial counsel had investigated Melissa Collins is unassailable. There is no

evidence that Melissa Collins coached her sister Ebony into falsely identifying Kelley as one of

the shooters. More importantly, there is no reason to believe any such evidence could be

discovered: Melissa Collins was not a witness to the shooting and since there is no evidence that

she held an animus towards Kelley, there is no reason to believe that she had a motive to

encourage her sister to falsely identify Kelley. As a consequence, even if Kelley’s trial counsel

had investigated Melissa Collins, there is no reason to believe that he would have discovered

evidence helpful to Kelley’s case. Regardless, even if he had and Ebony Collins’s identification

had been suppressed as a result, it would have been insufficient to overcome the lineup and incourt identifications of two other witnesses, since there is no suggestion that either of their

identifications were influenced by Melissa Collins and they each had ample opportunity at the

time of the shooting to observe the shooters. Accordingly, the Illinois Appellate Court

reasonably concluded that Kelley cannot satisfy the second prong of the Strickland test.
15

2. Failure to Investigate Caliber of the Bullet

Kelley next contends that his trial counsel’s failure to investigate evidence concerning

the caliber of the bullet removed from K.T.’s head during the postmortem examination, coupled

with his stipulation of the ballistics evidence and corresponding medical examiner’s testimony,

constituted ineffective assistance of counsel.

At trial, the State argued that the gun used to shoot K.T. was a .9 millimeter. The only

evidence linking Kelley to a .9 millimeter gun was the testimony of Assistant State’s Attorney

Catherine Hufford. As set forth above, Hufford testified that during an interview on August 3,

1994, she asked Kelley whether he was worried that the .25 caliber gun police took from him at

the time of his arrest would connect him to the shooting of K.T. Hufford then testified that

Kelley replied, “No because I didn’t have no nine millimeter.” Hufford maintained that she had

not at that time advised Kelley that the police believed the caliber of the gun used to shoot K.T.

was a .9 millimeter, so Kelley’s reference to that caliber gun implicated him in the crime.

At the end of the State’s case, the parties stipulated to the testimony of Dr. Robert

Kirschner, a deputy medical examiner in the Cook County Medical Examiner’s Office. The

parties stipulated that Dr. Kirschner would testify that he performed an autopsy on K.T.’s body,

on July 26, 1994, and that “a partially deformed medium caliber lead bullet...” was recovered

from K.T.’s head. The parties also stipulated that Mr. Warner, a forensic expert at the Chicago

Crime Lab, would testify that he subjected this bullet to analysis commonly accepted in the field

of forensic science and firearms ballistic evidence, and that in his opinion the bullet was not

suitable for comparison and thus he could not testify to its specific caliber.
3

The autopsy report referred to by the appellate court was a report prepared by the medical examiner

wherein she speculated that the caliber of the bullet recovered from K.T.’s head may have been a .32 caliber. The

appellate court dismissed Kelley’s reliance on that report because it was not in the record and medical examiners are

not qualified to testify regarding ballistics. This court declines to rest its decision on this ground, because the

absence of the autopsy report in the record is a related, albeit unidentified, element of Kelley’s claim of his counsel’s

ineffectiveness. 

16

Kelley contends that his counsel should have pursued and presented evidence indicating

that the caliber of the bullet recovered from K.T.’s head was not a .9 millimeter. Had he done

so, Kelley believes that he may have been able to mitigate the impact of Hufford’s testimony as

well as the testimony that several .9 millimeter shell casings were recovered at the scene of the

shooting.

The Illinois Appellate Court rejected Kelley’s claim, finding that: 

there is no evidence in the record that trial counsel failed to either interview Dr.

Kirschner or investigate the evidence concerning the caliber of the bullet. Instead,

defendant points this court to evidence of an autopsy report that is not contained in the

record.

In our view, the evidence does not support a holding that defendant was denied effective

assistance of counsel. See Kluppelberg, 257 Ill. App. 3d at 527, 195 Ill. Dec. 444, 628

N.E.2d at 917. Moreover, a medical examiner is not qualified to testify as to ballistics

testimony. People v. Babiarz, 271 Ill. App. 3d 153, 160, 207 Ill. Dec. 681, 648 N.E.2d

137, 143 (1995).3

The appellate court’s decision is not contrary to, nor does it involve an unreasonable

application of, the clearly established federal law regarding ineffective assistance of counsel. 

Even if it is assumed that Kelley’s trial counsel failed to investigate the caliber of the bullet,

there is no reason to believe that the outcome of Kelley’s trial would have been different if he

had. Kelley presents no evidence or argument to cast doubt on the State’s forensic expert’s

finding that the bullet was not suitable for comparison, and any suggestion that the forensic

expert’s finding was part of an effort to frame Kelley for the shooting is incredible. If the
17

forensic expert was going to lie to assist the State, he would have testified that the recovered

bullet was a .9 millimeter, not that it was unsuitable for comparison, since that testimony would

have corroborated the State’s assertion that .9 millimeter shell casings were recovered from the

scene. Kelley asserts that his counsel should have argued that the shell casings were at the scene

before the shooting, but that argument is also frivolous, as all of the eyewitnesses testified that

multiple shots were fired and no other shell casings were found at the scene. Here again, any

suggestion that the shell casings were planted by the police is unreasonable, because the police

did not know at the time they identified the recovered shell casings that the State’s forensic

expert would be unable to identify the caliber of the bullet lodged in K.T.’s head, nor that Kelley

would make an incriminating statement to ASA Hufford regarding a .9 millimeter gun, and thus

they had no incentive other than to correctly and truthfully identify the caliber of the shell

casings. Since, then, it is clear that the .9 millimeter shell casings found at the scene were fired

from the murder weapon, it is almost certain that any investigation conducted by Kelley’s trial

counsel into the caliber of the bullet recovered from K.T.’s head would have found that the bullet

was either not suitable for comparison or that it was .9 millimeter. As a consequence, the

outcome of Kelley’s trial would not have been affected by any investigation conducted by his

trial counsel. Accordingly, Kelley cannot establish constitutionally ineffective assistance of

counsel. 

3. Failure to Move to Supress Identifications as Unreliable 

Kelley also argues that he was denied effective assistance of counsel because trial

counsel failed to file a motion to suppress the identifications of him by Ebony Collins, Ronnie
18

Collins, and Lashon Johnson, each of which he argues was unreliable or the product of an unduly

suggestive lineup. 

The Illinois Appellate Court identified correctly the standard applicable to claims of

ineffective assistance based on counsel’s failure to file a motion to suppress. As the appellate

court found, in order to prevail on such a claim, a petitioner must show that the motion to

suppress would have been granted and that the trial outcome would have been different if the

evidence had been suppressed. Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S. Ct. 2574,

2583, 91 L. Ed. 2d 305 (1986). Thus, the first step in evaluating whether Kelley’s counsel's

performance was ineffective for failing to file a motion to suppress is to assess the relative merit

of that motion.

The Supreme Court has held that an identification violates a defendant's right to due

process where the identification procedure was so unnecessarily suggestive as to run the risk of

irreparable mistaken identification. Stovall v. Denno, 388 U.S. 293, 301-02, 87 S. Ct. 1967,

18 L. Ed. 2d 1199 (1967); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). 

“It is the likelihood of misidentification which violates a defendant’s right to due process.” Neil,

409 U.S. at 198. As the Supreme Court has stated, “reliability is the linchpin in determining the

admissibility of identification testimony.” Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct.

2243, 53 L. Ed. 2d 140 (1977). Courts thus first assess whether the identification was

unnecessarily suggestive, then assess whether the identification was nonetheless reliable. If an

identification is reliable, it will be admissible even if the confrontation was suggestive. See id.

Kelley’s argument that Ebony Collins’s identification of him at the funeral home on July

29, 1994 was unreliable is unpersuasive. As the Illinois Appellate Court found,
4

It is undisputed that Officer Oliver took Ebony Collins to the funeral home to see whether she could

identify either of the two individuals present at the shooting. Kelley refers to this as a showup identification.

Kelley’s characterization does not fit the circumstances of this case. A showup can best be described as a "single

suspect [confrontation] wherein a witness is presented with one individual and asked if he can make an

identification.” U. S. ex rel. Raymond v. People of State of Ill., 455 F.2d 62 (7th Cir. 1972) (quoting United States v.

Clark, 294 F. Supp. 44, 49 (D.D.C.1968)). In this case, there is no evidence that the police suspected Kelley before

he was identified by Ebony Collins, nor that the police in any way directed her attention to Kelley or suggested that

he was the one who committed the crimes. Instead, the evidence shows that Ebony Collins identified Kelley from a

large group of people without assistance or direction from the police. As such, the concerns raised by the Supreme

Court in Stovall regarding showup identifications are not implicated in this case. 

19

Ms. Collins had an opportunity to view defendant prior to the shooting as her vehicle was

stopped at the intersection for a red light, and she testified in specific detail regarding

what defendant was wearing, what she heard him say as the car passed, and where

defendant was located both before and after the shooting. Ms. Collins demonstrated a

good level of certainty that defendant was the shooter both at the initial identification and

later at the lineup, and she testified that she had seen defendant around the neighborhood

and knew his face.

Kelley argues that Ebony Collins had less than 39.5 seconds - the length of the red light - to

observe the shooters. Even if that is true, 39.5 seconds is hardly an insufficient amount of time

to make a reliable identification. Indeed, in many cases, courts admit the testimony of

eyewitnesses who had far less of an opportunity to observe the persons whom they’ve been

called to identify.4

 

Any remaining argument that Ebony Collins’s identification of him at the funeral home

was untrustworthy is predicated on the false premise that the identification was the product of

the assistance of Melissa Collins. Since, as discussed above, that premise is baseless, Kelley’s

argument is properly rejected.

Kelley next contends that the August 2, 1994 lineup at which he was identified by Ebony

Collins was unduly suggestive because he was wearing the same clothes as he was when Ebony

Collins first identified him at K.T.’s funeral. The Illinois Appellate Court rejected the argument,

finding, pursuant to People v. Morisette, 501 N.E.2d 781, 785, 150 Ill. App. 3d 431, 437, 103 Ill.
5

The Illinois Appellate Court did not specifically discuss this claim. Instead, the appellate court appears to

have summarily rejected it on the grounds that even if the lineup was suggestive, Kelley would not have succeeded

on a motion to suppress because Ronnie Collins had an independent basis for his identification. Since this court

ultimately agrees that a motion to suppress Ronnie Collin’s lineup identification would have been unsuccessful, it

finds that the appellate court’s decision denying Kelley’s claim was not unreasonable. Nevertheless, this court elects

to give the claim a more extended discussion and rejects it on different grounds. 

20

Dec. 464 (1st Dist. 1986) that “the fact that Kelley was dressed as he was at the time of the initial

identification does not, in and of itself, render the lineup identification unduly suggestive. 

Rather, differences in the appearance of Kelley and other lineup participants go to the weight of

the evidence, not its admissibility.” 

While the Illinois Appellate Court’s finding that the lineup was not unduly suggestive is

debatable, its ultimate conclusion is not. Since Ebony Collins made a reliable identification of

Kelley at the funeral home, even if Kelley’s counsel had successfully moved to suppress the later

lineup identification, Ebony Collins’s funeral home identification would have still been

admissible. That identification, coupled with those made by the other witnesses to the shooting,

rendered Ebony Collins’s lineup identification cumulative. As a consequence, Kelley cannot

show that the results of his trial would have been different but for his counsel’s alleged

ineffectiveness.

Kelley next argues that his counsel should have moved to suppress the lineup

identification by Ronnie Collins (“Ronnie”). Kelley contends that the discrepancy between

Detective Ervin’s report and the trial testimony of Ronnie and Detective Ervin regarding

Ronnie’s identification shows that the identification was the product of improper suggestion.5

On August 2, 1994, Ronnie viewed a lineup at the police station of four AfricanAmerican males. Ronnie testified at trial that he choose Kelley in the lineup, and that Kelley

was in position number one. Detective Ervin, the police officer that conducted the lineup,
21

corroborated Ronnie’s testimony. Detective Ervin admitted, though, that his report regarding the

lineup indicated that Ronnie had identified the person in position number two and that that

person was Kelley. Detective Ervin explained that, earlier in the day, he had conducted a

different lineup also involving Kelley and Jernel Brown. In that lineup, Kelley was in position

number two and Brown was in position number three. Ebony Collins picked Kelley out of that

lineup. Detective Ervin testified that he prepared a report following that lineup indicating the

placement of the persons in the lineup, which he then saved on his computer. When he prepared

a similar report of the second lineup - the one viewed by Ronnie - he opened the file containing

his report of the first lineup and updated the information. Detective Ervin then testified that he

failed to change the data entry field indicating the positions of the lineup participants. That

oversight, Detective Ervin maintained, explains the discrepancy between his report of the second

lineup and his trial testimony.

Kelley accounts for the inconsistency differently. Kelley regards Detective Ervin’s

report of the lineup as true and correct. Kelley speculates that Ronnie picked the person in

position number two at the direction of Ebony Collins, who had picked Kelley in that position

out of a lineup she viewed earlier in the day. Kelley seems to surmise that Detective Ervin then

falsely reported that Kelley had been in position number two and that he had been picked by

Ronnie. Next, Kelley must theorize that Detective Ervin advised Ronnie that he would need to

testify at trial that he had picked the person in position number one: Kelley.

Kelley’s theory is entirely speculative. The only evidence Kelley cites in support of it is

the fact that the data entry field in Detective Ervin’s report of the second lineup indicates that

Ronnie’s identification was “tentative.” Since this term does not appear in the same data entry
22

field in Detective Ervin’s first report, Kelley concludes that Detective Ervin’s testimony that he

did not alter that data entry field when preparing his second report, which Detective Ervin

maintained resulted in the mistaken identification of Kelley as the person in the second position

in the second lineup, was incredible. Kelley’s conclusion is on its face plausible enough, but it

does not stand up when considered in the context of Kelley’s larger cover-up theory.

First, if Detective Ervin was attempting to frame Kelley by manufacturing a lineup

identification of him by Ronnie, there would be no reason for him to then undermine the value of

that identification by characterizing it as “tentative”. Instead, if Kelley’s theory were true,

Detective Ervin would have labeled Ronnie’s identification as firm. Next, Kelley cannot explain

why Detective Ervin would indicate in the report that Ronnie had picked the person in position

number two. If Detective Ervin was going to lie on the witness stand by testifying that Ronnie

had picked the person in position number one when in fact he had chosen the person in position

number two, Detective Ervin would have first told that lie in his report of the lineup and not

undermined his credibility by creating a record that would directly contradict his trial testimony. 

Finally, Kelley’s suggestion that Ebony Collins instructed Ronnie to blindly pick the person in

position number two is speculative. Neither Ebony Collins nor Ronnie would have had any

reason to believe that Kelley would be in position number two in the second lineup, and thus, if

Ebony Collins was going to assist Ronnie in picking Kelley, she would have identified some

distinguishing characteristic that Ronnie could recognize regardless of Kelley’s placement in the

lineup.

For these reasons, it is clear that Detective Ervin’s lineup report would not have been a

basis to suppress Ronnie’s identification of Kelley. As a consequence, the Illinois Appellate
23

Court’s conclusion that Kelley’s claim that his counsel was ineffective for failing to move to

suppress the identification was reasonable. 

Finally, Kelley argues that the August 11, 1994 lineup from which Lashon Johnson

identified him was unduly suggestive because he was the only lineup participant with hair long

enough to be braided. The August 11, 1994 lineup took place more than a full week after the

shooting. Lashon Johnson, therefore, would have known that the two suspects would have had

ample time to change their hairstyles and that he would likely have to make an identification

based on some other distinguishing characteristic. That belief would have only been reinforced

when he viewed the lineup because none of the participants wore their hair in braids. Thus,

Kelley’s “afro” hairstyle did not draw attention to him because his hairstyle did not make it any

more likely that he had worn braids on the night of the shooting than the short hairstyles of the

other lineup participants. Therefore, the appellate court’s finding that the August 11, 1994

lineup was not impermissibly suggestive was reasonable.

4. Trial Counsel’s Alleged Improper Statement During Closing Argument

In his claim four, Kelley argues that he was denied effective assistance of counsel when

during closing argument his counsel stated, “We don’t expect you to find Mr. Kelley innocent,

that’s not one of your choices and that’s not anything we’re asking for.” Before the Illinois

Appellate Court, Kelley argued that People v. Hattery, 488 N.E.2d 513, 109 Ill.2d 449, 94 Ill.

Dec. 514 (1985) supported his claim. In Hattery, the Illinois Supreme Court found that a

defendant’s right to effective assistance of counsel was violated when, in his opening statement

to the jury, the defendant’s counsel stated:

Ladies and gentlemen of the jury, [defendant] did it. He did everything [the prosecution]

just told you. We are not asking you to find [defendant] not guilty. At the end of your
24

deliberations, you will find him guilty of murder. The question, and the only question

facing you, will be whether to impose the death penalty on [defendant] for trying to save

the life of his family.’” (Emphasis omitted.)

Hattery, 109 Ill.2d at 458-59. The appellate court found Hattery inapposite because in that case

defense counsel had presented no evidence at trial and did not make a closing statement to the

jury, whereas Kelley’s counsel answered the State’s presentation of the law and facts and

adamantly attacked the sufficiency of the evidence throughout the trial. Based on Kelley’s

counsel’s overall presentation, which included four alibi witnesses, the appellate court concluded

that “the portion of defense counsel’s closing argument that Kelley chose to attack is merely a

statement about the ultimate finding that the court need not determine that Kelley was innocent,

rather that the [State] had not proven him guilty beyond a reasonable doubt.”

In his habeas petition, Kelley has made no effort to explain how the appellate court’s

decision was contrary to or an unreasonable application of United States Supreme Court

precedent. Instead, Kelley reasserts his position that counsel’s failure to assert Kelley’s actual

innocence was tantamount to an admission of guilt. Like the appellate court, this court

disagrees. By instructing the court that it need not find Kelley innocent to find him not guilty,

Kelley’s counsel merely reminded the court that the State, not Kelley, bore the burden of proof. 

Far from prejudicing Kelley, his counsel’s statement rightly concentrated the court’s attention on

the question of whether the State had proven Kelley was guilty and away from the legally

impertinent question of whether Kelley had proven that he was innocent. The difference between

the two is hardly subtle. Indeed, it embodies the constitutional guarantee that a criminal

defendant is presumed innocent until proven guilty. If Kelley’s counsel had failed to make the

distinction, he might have been guilty of having rendered ineffective assistance of counsel. 
6

Kelley’s reliance on People v. Swift, 781 N.E.2d 292, 202 Ill.2d 378, 269 Ill. Dec. 495 (Ill. 2002) is

misplaced. Swift did not involve the retroactive application of Apprendi because in that case the petitioner’s

sentence had not become final before Apprendi was decided. As such, Swift is inapposite. 

25

Having highlighted that the burden of proof rested squarely on the State, Kelley’s counsel made

clear that Kelley did not have to prove his innocence because his innocence was presumed unless

and until the State could prove that he was guilty. Accordingly, the appellate court’s decision

rejecting Kelley’s claim was reasonable. 

C. Apprendi Claims

Kelley argues that his sentence violates Apprendi because the trial court made factual

findings that enhanced his sentence beyond the statutory maximum. First, Kelley contends that

he was only exposed to a sentence of between 20 and 60 years' imprisonment for his conviction

of first degree murder, see 730 Ill. Comp. Stat. 5/5-8-1(a)(1)(a), but that he received an 80-year

extended-term sentence under 730 Ill. Comp. Stat. 5/5-5-3.2(b)(4)(I) based on the court’s finding

that K.T. was less than twelve years old. Second, Kelley argues that the trial court imposed

consecutive sentences on the first degree murder and attempted first degree murder convictions

pursuant to 730 Ill. Comp. Stat. 5/5-8-4(a) based on its finding that he inflicted severe bodily

injury.

Kelley’s claims are unavailing. First, Apprendi “does not disturb sentences that became

final before June 26, 2002, the day of its release.” Curtis v. United States, 294 F.3d 841, 844 (7th

Cir. 2002). Since Kelley’s sentence became final on December 1, 1999 - the day his petition for

leave to appeal from his direct appeal was denied - Kelley cannot sustain a claim based on

Apprendi.

6

 Even if Apprendi applied retroactively and the court assumes that an Apprendi
7

With respect to Kelley's Apprendi claim regarding the imposition of consecutive sentences, the Illinois

Supreme Court has held that Apprendi does not apply to consecutive sentences under 730 Ill. Comp. Stat. 5/5-8-4(a). 

See People v. Carney, 752 N.E.2d 1137, 196 Ill.2d 518, 529-35, 256 Ill. Dec. 895 (Ill. 2001) (concluding that

Apprendi does not restrict the imposition of consecutive sentences as long as each individual sentence is within the

unextended statutory range); People v. Wagener, 752 N.E.2d 430, 196 Ill.2d 269, 286, 256 Ill. Dec. 550 (Ill. 2001). 

Thus, it is clear that this claim is without merit.

26

violation had occurred in this case, Kelley’s claim would still fail.7 Kelley concedes in his brief

in support of his present petition that K.T. was less than twelve years of age, and the finding that

Kelley inflicted severe bodily injury is implicit in the court’s finding that Kelley was guilty of

first degree murder for the death of K.T. and is also supported by the undisputed evidence that

Ronnie Cole was shot twice in the right arm. Thus, had these issues been submitted to the court,

there is no doubt that they would have been resolved against Kelley. As such, since Kelley’s

sentence was unaffected by any Apprendi error committed in this case, there is no basis to vacate

his sentence. United States v. Cotton, 535 U.S. 625, 122 S. Ct. 1781, 152 L. Ed. 2d 860 (2002)

(holding that an Apprendi error does not require automatic reversal).

CONCLUSION

For the foregoing reasons, Kelley’s petition for a writ of habeas corpus pursuant to 28

U.S.C. § 2254 [# 1] is denied. The case is terminated. 

Dated: June 14, 2007 ENTER:__________________________________

 JOAN HUMPHREY LEFKOW

 United States District Judge
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