methadone treatment until after. Mr. Hereford made a confession.
One issue is procedurally defaulted; the others do not provide a
basis for relief.

I.

Mr. Hereford argues that the police officers who arrested and
interrogated him, with the cooperation of the prosecution, withheld
his methadone treatment following his arrest until they had
obtained a confession. Only then, he claims, did the police
transport him to a hospital for treatment. A petitioner must first
present all claims to the state courts, either on direct appeal or

on petition for post-conviction:

elief, before he may present those
claims in a federal habeas petition. Bell v. Pierson, 267 F.3d

544, 555 (7'" Cir. 2001). Such a presentation gives the state court

a “full and fair opportunity”

resolve constitutional issues

before those claims are presented to the federal courts. Id.
(citing O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). Ifa
petitioner does not fully present.a claim to the state courts, the
federal court may only entertain a habeas petition on that claim if
the petition either demonstrates.cause for the omission and actual
prejudice as a result, or if failure to consider the claim will
result in a “fundamental miscarriage of justice.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991).

Mr. Hereford’s claim is procedurally defaulted; he did not

raise the issue of police and prosecutorial misconduct before the



either prong of the Strickland. test with regard to counsel’s
failure to obtain suppression of Mr. Hereford’s confession. Ex. J
at 8.

The court also applied Strickland to trial counsel’s failure
to object to the prosecutor’s statements during closing arguments.
The court refused to consider several of the statements objected to
by Mr. Hereford, stating that res judicata applied, as the
statements had been considered by the court on direct appeal and
rejected as a source of error.! Ex. J at 8. The court did
consider one statement not previously addressed: the prosecutor’s
invitation to the jury to hypothesize about the amount of force
needed to break a baseball bat.* Ex. J at 9. The court held that
such a statement addressed a matter of common knowledge and was
reasonable. Ex. J at 9. Again, Mr. Hereford failed to meet either
prong of the Strickland test for ineffective assistance of counsel.
After review, in neither case does the Illinois Appellate Court’s
application of Strickland constitute an unreasonable application of

federal law, nor are their holdings contrary to federal law.

1 These statements included that Mr. Hereford and his co~
defendant intended to send a message of intimidation through the
killing of the victim, that they lived in a world of “violence” and
of “drugs,” and that they meted out “street justice.” The court
held that the statements were reasonable and, even if error, were
not prejudicial given the overwhelming evidence against Mr.
Hereford and his co-defendant. Ex. A at 10-11.

2 Mr. Hereford, at one point, struck the victim repeatedly
with a baseball bat. The bat apparently broke while Mr. Hereford
was doing so.


motion to suppress at trial when one witness contradicted his
earlier testimony, (7) failing to object to the prosecution's
closing argument, and (8) failing to act in a professional manner;
and, finally, (9) whether the cumulative effect of the errors by
trial and appellate counsel denied Mr. Hereford a fair trial. The
court denied Mr. Hereford’s appeal on June 30, 2003.

Mr. Hereford petitioned for a rehearing of his petition, which
was denied on August 12, 2003. Mr. Hereford filed a petition for
leave to appeal to the Illinois Supreme Court on October 3, 2003,
raising the same issues as in his March 2002 appeal: (1) several
grounds for ineffective assistance of appellate counsel; (2)
several grounds for ineffective assistance of trial counsel; and
(3) prosecutorial misconduct. His petition for leave to appeal was
denied on December 3, 2003.

On March 18, 2004, Mr. Hereford filed a petition for a writ of
habeas corpus. He raises four_issues: ineffective assistance of
trial counsel for (1) failing to investigate Mr. Hereford’s
participation in a methadone treatment program and the effect of
that treatment on the voluntariness of his statements to police and
(2) failing to object to the prosecution’s comments during closing
argument which were inflammatory and not supported by the evidence;
(3) ineffective assistance of appellate counsel for failing to
raise the issue of ineffective assistance of trial counsel; and (4)

police and prosecutorial misconduct for withholding Mr. Hereford’s


state courts. Further, he makes no argument concerning cause for
failing to present the claim, nor does he assert that failure to
examine this claim will result.in the conviction of an innocent
man, a fundamental miscarriage of justice. See, e.g., Rodriguez v.
Peters, 63 F.3d 546, 555 (7 Cir. 1995). This claim is barred from
federal review.

II.

Federal courts may grant a weit of habeas corpus only when the
adjudication of the petitioner’s claims in state court resulted in
an outcome either contrary to or an unreasonable application of
clearly established federal law, as determined by the Supreme
Court. 28 U.S.C. § 2254(d) (1); Boss v. Pierce, 263 F.3d 734, 738-
39 (7 Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362 (2000)).

A.

Mr. Hereford argues that his trial counsel provided
ineffective assistance on two grounds: first, because he failed to
investigate the effect Mr. Hereford’s methadone treatment would
have had on his state of mind at the time of the alleged crime or
on his ability to make a knowing and voluntary waiver of his rights
before confessing to the police, and second, because he failed to
object to the inflammatory and potential prejudicial comments made
by the prosecutor during closing arguments.

To establish ineffective assistance of counsel, a claimant

must show that counsel’s represéntation fell below an objective



B.

Mr. Hereford finally argues that his appellate counsel
provided ineffective assistance by failing to present his claim of
ineffective assistance of trial counsel. The Illinois Appellate
Court also addressed this issue in its rejection of Mr. Hereford’s
post-conviction appeal. Ex. J at 10. Mr. Hereford’s claims of
ineffective assistance by appellate counsel were predicated on
claims of ineffective assistance by trial counsel. Ex. J at 10.
The court held that as Mr....Hereford’s claims regarding trial
counsel failed, he suffered no prejudice by his appellate counsel’s
failure to raise those claims. Ex. J. at 10 (citing People v.
Haynes, 737 N.£.2d 169, 190-91 (I1l. 2000) (no prejudice results
from appellate counsel’s failure to raise an issue, unless
underlying issues were meritorious)). Again, I cannot say that
this holding was an unreasonable application of or contrary to
established federal law.

TIr.

As no argument presented by Mr. Hereford is sufficient to

sustain a grant of habeas review, I deny his petition.

ENTER ORDER:

Louse 2 Bvashles

Elaine E. Bucklo
United States District Judge

Dated: December ly , 2004


‘Minute Order Form (06/97)
Bow

United States District Court, Northern District of Ilinois

Njme of Assigned Jud i
Tir Magistrate Judge Elaine B, Bucklo “Thaw signed Judge
Ease NUMBER 04 C 2037 DATE 12/14/2004
CASE Hereford vs. Sternes
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
of the motion being presented]

MOTION;

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

(3) Qo Answer brief to motion due. . Reply to answer brief due.

(4) oO Ruling/Hearing on__set for__at.

(5) o Status hearing[held/continued to] [set for/re-set for]on__setfor___at

(6) a Pretrial conference[held/continued to] [set for/re-set for]on___——ssetfor_ ss at__—.
(1) Oo Trial[set for/re-set for] on ___at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to __at

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

OFRCP4(m) CLocal Rule 41.1 CFRCP41(a)(1) 1 FRCP41(a)(2).

a0) of (Other docket entry] Enter Memorandum Opinion and Order denying the petitioner’s petition for
a writ of habeas corpus. Any pending motion in this case is terminated as moot.

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

No notices required, advised in open court,
3

No notices required. umber of notices

Y | Notices mailed by judge’s staff. DEC 15 2Uu4

Notified counsel by telephone

ockgt

Docketing to mail notices.

Y | Mail AO 450 form. dockeyf deputy iias

Copy to judge/magistrate judge. pon
rari4ra004
courtroom thy oc date mailed notice
MP3 deputy’s yes t vans
initials

Date/tine feceived in
‘central Clerk's Office exaingdoputy nls

ba ions



standard of reasonableness and that, but for the substandard
representation, the outcome of. the proceeding would have been
different. Porter v. Gramley, 112 F.3d 1308, 1312 (7% Cir.
1997) (citing Strickland v. Washington, 466 U.S. 668, 688, 694
(1984)). Mr. Hereford raised these issues before the Illinois
Appellate Court on appeal of his post-conviction relief petition.
Ex. J at 5-6. That court rejected his argument that trial counsel
had provided him with substandard assistance.

Applying Strickland, the court held that trial counsel’s
failure to argue regarding Mr. Hereford’s methadone treatment
during the suppression proceedings was not the result of
incompetence, but rather sound trial strategy. Ex. J at 7. Mr
Hereford did not take the stand at his trial, leaving his
confession as the only evidentiary support for his theory of the
case, Ex. J at 6-7. Taking the stand could have been problematic
for Mr. Hereford, as he could have been cross-examined about “his
drug addiction, his drug sales, and about obvious contradictions in
the evidence about where his bat-wielding assault took place.” Ex.
Jat 7. If the confession had. been suppressed, the only evidence
remaining with respect to the victim’s death would be eyewitness
testimony, which did not support. Mr. Hereford’s theory of the case.
Ex. J at 7. That testimony alone would have been sufficient to
convict Mr. Hereford of first-degree murder. Ex. J at 7. The

appellate court therefore held that Mr. Hereford had failed to show



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

UNITED STATES OF AMERICA ex rel.
CURTIS HEREFORD, ‘

Petitioner,

JERRY L, STERNES,

)
)
)
)
)
v. ) No. 04 C 2037
)
)
)
Respondent.

MEMORANDUM OPINION AND ORDER

On May 18, 1994, after a jury trial, petitioner Curtis
Hereford was convicted in the. Circuit Court of Cook County of
first-degree murder. Mr. Hereford was sentenced to serve a prison
term of thirty-four years.

Mr. Hereford appealed his conviction to the Illinois Appellate
Court, First District, raising two issues: (1) that the court erred
by failing to instruct the jury on self-defense and on second-
degree murder based on an unreasonable belief in self-defense; and
(2) that the prosecution engaged in misconduct by making comments
during closing arguments that were inflammatory and not supported
by the evidence. The appellate court affirmed Mr. Hereford’s
conviction on October 4, 1996. Mr. Hereford then petitioned for
leave to appeal to the Illinois Supreme Court, xaising only the
jury instruction issues. That petition was denied on January 29,

1997,



Mr. Hereford filed a petition for post-conviction relief with
the Circuit Court of Cook County on May 12, 1997. That petition
raised four issues: (1) ineffective assistance of trial counsel for
failure to investigate Mr. Hereford’s medical history and records,
specifically his participation in a methadone treatment program;
(2) ineffective assistance of trial counsel for failure to expose
alleged perjury by three witnesses; (3) prosecutorial misconduct
for making comments during closing arguments that were inflammatory
and not supported by the evidence; and (4) judicial misconduct for
not instructing the jury on self-defense and second-degree murder
based on an unreasonable belief.in self-defense. The court denied
that petition on December 18, 2000.

Mr. Hereford appealed that decision to the Illinois Appellate
Court, First District, on March 5, 2002, raising nine issues:
ineffective assistance of appellate counsel for (1) failing to
provide Mr. Hereford with a reasonable level of representation in
violation of Illinois Supreme Court Rule 651(c) and (2) failing to
raise the issue of ineffective assistance of trial counsel;
ineffective assistance of trial.counsel for (3) failing to present
evidence of Mr. Hereford’s drug dependency when presenting the
motion to suppress, (4) failing to cross-examine witnesses at the
suppression hearing regarding their knowledge of Mr. Hereford’s
participation in a methadone treatment program, (5) failing to have

Mr. Hereford’s confession suppressed, (6) failing to renew the