Cole v. Lawrence

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

DEMETRUS COLE, # S01875, )

)

Petitioner, )

)

vs. ) CaseNo. 17-cv-450-NJR

)

FRANK LAWRENCE, )

)

Respondent. )

MEMORANDUM AND ORDER

ROSENSTENGEL,ChiefJudge:

In 2010, Petitioner Demetrus Cole was convicted of first-degree murder and robbery after

a jury trial in Jefferson County, Illinois. He was sentenced to consecutive prison terms of 45years

for murder and 7years for robbery. He is now incustodyof the Illinois Department of Corrections

at MenardCorrectional Center.

Cole filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. §2254.

(Doc.1).His pro sePetition raises the following grounds:

1. The trial court erred in refusing to instruct the jury to consider an accomplice’s

testimony skeptically.

2. The trial court violated the Confrontation Clause by allowing Lindsay McIntosh

to testify about incriminating hearsay statements made by KrystaDonoho.

3. Trial counsel was ineffective in that he failed to:

a. offer an instruction that the jury could not consider any out-

of-court statements from Detective Kemp’s testimony for

the truth of the matter asserted; and

b. offer an instruction that the jury should determine whether

Cole made incriminating out-of-court statements and what

weight should be given to them.

4. The trial court violated the Confrontation Clause by allowing Detective Kemp

to refer to information learned during the course of his investigation.

5. The trial court violated due process by allowing lay witness Ratasha Turner to

testify that “hit a lick” means to commit a robbery.

6. Trial counsel was alsoineffective in that he failed to:

a. object to Turner’s testimony that “hit a lick” means to

commit a robbery or introduce evidence to the contrary;

b. request a recess to retake photographs of the victim’s home

at night; and

c. to interview and call purported alibi witnesses.

7. The trial court denied Cole the right to present a complete defense when it

refused to admit photographs taken of the victim’s home from inside a vehicle.

Respondent filed a Response at Doc. 17. Relevant portions of the state court record are attached

to Doc. 18. Cole filed a Reply at Doc. 21.

RELEVANT FACTS AND PROCEDURAL HISTORY

1. State Trial Proceedings

This summary of the facts is derived from the detailed description by the Illinois Appellate

Court, Fifth District, in its Rule 23 Orders affirming Cole’s conviction on direct appeal and

affirming the dismissal of his postconviction petition. People v. Cole, No. 5-10-05421 (Aug. 15,

2012); People v. Cole, No. 5-14-0163(Nov. 29, 2016);(Docs.18-4 and 18-10).2The state court’s

factual findings are presumed to be correct unless rebutted by clear and convincing evidence,

which Colehas not done. 28 U.S.C. §2254(e).

The victim, Randy Farrar, was found dead at the bottom of the basement steps in his home

on July 5, 2006. Detective John Kemp of the Jefferson County Sheriff’s Department investigated

the death. At Farrar’s home Kemp found blood droplets on the floor leading to the basement door,

1State court documents refer to Cole as “Demetrius” Cole, but he spells his first name as “Demetrus” in his

filings in this Court.

2 Citations in this Order are to the document, exhibit, and page numbers assigned by the Case

Management/Electronic Case Filing (“CM/ECF”) system. Unless otherwise specified, all exhibits referred

to are attached to Doc. 18.

a blood splatteron the wall leadingto the basement,broken glass in the kitchen, and adent in the

drywall in the living room. There were gray hairs in the dent. It was determined that the hairs

matched Farrar’s hair. Two shell casings from a .380-caliber firearm were found near Farrar’s

body. The master bedroom was in disarray, and a drawer was lying on the floor. The evidence

indicated thatFarrar had hidden money in the drawer, as well as in the bathroom and the bedroom

closet.There was a case for a Walther PPK .380 pistol. The pistol was gone but the receipt showed

Farrar was the owner. There was also a Post-It note with the name “Susan” and a phone number

written on it in the bedroom. (Doc. 18-4, pp. 1-2).

The phone number on the Post-It note was traced to Gwendolyn Jones, who was the mother

of Demetrus Cole and ChristopherWatkins. Twenty-nine phone calls were made between Jones’s

phone number and Farrar’s home and cellular phones from June 24, 2006, to July 1, 2006. There

were no more calls after July 1, and the last outgoing call from Farrar’s phone to any number was

madeon July 1. (Doc. 18-4, p. 2).

Detective Kemp interviewed Gwendolyn Jones and Christopher Watkins. Ultimately, the

investigation established that Watkins, Cole, Krysta Donoho (Cole’s girlfriend), and Chandra

Jones were present at the sceneof Farrar’s death. Jones, who was 16 years old at the timeand was

no relation to Gwendolyn Jones, had only recently met the others. The investigators believed that

Donoho engaged in sex for money with Farrar. Donoho, Watkins, and Cole were arrested for

Farrar’s murder. (Doc. 14-4, p. 2).

ChandraJones testified that inearly July 2006,she,Krysta Donoho, ChristopherWatkins,

and Demetrus Cole drove in a white Ford Expedition to a Casey’s General Store, where Donoho

made a phone call. Surveillance video showed Donoho using that phone, and phone records

showed that a call was made from that store to Farrar on the evening of July 1, 2006. They then

drove to Farrar’s house. Jones and Donoho went to the door. Donoho went into the house, and

Jones went back to the car because Farrar said she was not welcome in the house. The car was

parked in the driveway but was moved to a private drive across the street after Jones got back in

it. Cole and Watkins then got out and talked, got back in the car, and backed the car into Farrar’s

driveway. The two men got out of the car and walked around the back of Farrar’s house. Jones

was then able to see Cole and Watkins inside the house through the front window. (Doc. 18-4,

pp.2-3).

Chandra Jones testified that she stayed in the car and saw what happened throughthe front

window of the house. She saw Cole and Watkins crawl behind a couch while Donoho and Farrar

walked in front of it. Cole and Watkinsstarted beating Farrar. They moved into another part of the

house where she could not see them, and then the lights in the house were turned off. Jones heard

twogunshots. Watkins returned to the car first with “a lot” of money in his hand. Cole and Donoho

returned, and they left. Cole threatened to kill anyonewho talked about that night “like he did the

man.” (Doc. 18-4, p. 3).

Chandra Jones testified they drove to a gas station and got gas, and then Cole and Watkins

went into the McDonald’s next door. Surveillance video showed Cole and Watkins inside the

McDonald’s. Ratasha Turner was working in the McDonald’s. Turner testified that Cole was

holding “hundreds” of dollars and flipped through the money to find a small bill to pay for his

order. She asked him where he got the money, and he said they “hit a lick.” Turner testified that

meant they robbed someone. They then drove to a Sonic, and Watkins went inside to talk to his

girlfriend. Cole got out of the car and threw something away in the dumpster. (Doc. 18-4, p. 3).

Later that evening, the group returned to Farrar’s houseto retrieve a change bowl that one

of them had touched. Jones again stayed in the car. They then returned to Gwendolyn Jones’s

house. Chandra Jones went into Watkins’s bedroom while the other three talked in another room.

Watkins told Chandra Jones they were going “back to the house” to get a key to the safe. When

the three returnedto Gwendolyn Jones’s housethey gave her $200.00. (Doc. 18-4, p.3).

Tanya Melton, a friend of Watkins, testified that Watkins, Cole, and Donoho asked her to

give them a ride at around 11:00 a.m. on July 2, 2006. They first went to Casey’s General Store,

where Donoho used the phone. Surveillance video shows Melton’s car in the parking lot, and

phone records reflect that a call was made from that payphone to Farrar’s phone at 11:31 a.m. Cole

then directed Melton to drive to Farrar’s house and back into the driveway. Watkins, Cole, and

Donoho went around to the back of the house and returned in about five minutes. Donoho had

something in her hands. They gave Melton $40.00 for driving them. (Doc. 18-4, p.4).

Lindsay McIntosh, a friend of Donoho, testified that she had a birthday party for her son

on July 1, 2006. Krysta Donoho was invited but did not come. A few days later, Donoho asked

McIntosh to tell the police that Donoho had been at the party. McIntosh refused. About a week

later, Donoho called McIntosh and said she had set someone up and they had gotten killed. Donoho

also said that Cole had been present during the murder. (Doc. 18-4, p. 4).

Dr. Mark LeVaughn performed Farrar’s autopsy. He testified that the cause of death was a

gunshot wound to the head. Farrar also suffered a grazing gunshot wound, bruising on his head

and forearm, and two broken ribs. The bruising and broken ribs were caused near the time of death,

and they were consistent with being hit and kicked by another person. Farrar’s body was recovered

on July 5, 2006, and Dr. LeVaughn testified that Farrar had died at least thirty-six hours before his

body was found, so it would have been impossible for someone to see Farrar alive on the evening

of July 4. It was possible Farrar died on July 1. (Doc. 18-4, p.4).

A firearms expert testified that the shell casings found in Farrar’s basement were fired from

the same weapon, and they could have been fired from a .380 automatic pistol. He was unable to

say whether they had been fired from the Walther PPK .380 pistol without having the firearm to

test. (Doc. 18-4, p. 4).

Cole presented witnesses who said they saw Farrar alive on July 2 and July 4, 2006.

(Doc.18-4, p. 4).Other facts will be discussed as necessary in the analysis below.

2. Direct Appeal

As is relevant here, Cole raised the following points onappeal:

1. The trial court erred in refusing to instruct the jury that accomplice

testimony should be viewed with suspicion.

2. McIntosh’s testimony about Donoho’s incriminating statements violated

the Confrontation Clause.

3. Trial counsel was ineffective in that he failed to:

a. offer an instruction that the jury could not consider any out-

of-court statements from Detective Kemp’s testimony for

the truthof the matter asserted; and

b. offer an instruction that the jury should determine whether

petitioner made incriminating out-of-court statements and

what weight should be given to them.

(Doc. 18-1).

After his conviction was affirmed, Cole filed a pro se Petition for Leave to Appeal (PLA)

raisingthe above points. (Doc. 18-5). The Supreme Court denied the PLA. (Doc. 18-6).

3. Postconviction Petition

Cole’s postconviction petition raised the following relevant points:

1. The trial court violated the Confrontation Clause by allowing Detective Kemp

to refer to information learned during the course of his investigation.

2. The trial court violated due process by allowing Turner to testify that “hit a lick”

means to commit a robbery.

3. Trial counsel was ineffective in that he failed to:

a. object to Turner’s testimony that “hit a lick” means to commit a

robbery or introduce evidence to the contrary;

b. request a recess to retake photographs of Farrar’s home atnight; and

c. interview and call purported alibi witnesses.

4. The trial court denied Cole the right to present a complete defense when it did

not admit photographs taken of Farrar’s home from inside a vehicle.

(Doc. 18-19).

The trial court dismissed the petitionat the first stage. (Doc. 18-20). On appeal, Cole raised

the arguments noted above, as well as a claim that appellate counsel on direct appeal was

ineffective for failing to raise them. (Doc. 18-7). The Appellate Court affirmed. (Doc. 18-10).

Cole’s counseled PLA raised only ineffective assistance of appellate counsel. (Doc. 18-11). The

Illinois Supreme Court denied the PLA onMarch 29, 2017. (Doc. 18-12).

LAW APPLICABLE TO SECTION2254PETITION

1. Substantive Law

This habeas petition is subject to the provisions of the Antiterrorism and Effective Death

Penalty Act (AEDPA). “The Antiterrorism and Effective Death Penalty Act of 1996 modified a

federal habeas court’s role in reviewing state prisoner applications in order to prevent federal

habeas ‘retrials’ and to ensure that state-court convictions are given effect to the extent possible

under law.” Bell v. Cone, 535 U.S. 685, 693 (2002).

Habeas is notmerely another round of appellate review.Under 28 U.S.C. §2254(d),habeas

relief is restricted to cases where the state court determination “resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law, as

determined by the Supreme Court of the United States” or “a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the State court

proceeding.”

A judgment is “contrary to” Supreme Court precedent if the state court “contradicts the

governing law set forth in [Supreme Court] cases.” Coleman v. Hardy, 690 F.3d 811, 814 (7th Cir.

2012) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is an

“unreasonable application of” clearly established federal law if the state court “identifies the

correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of

the particular state prisoner’s case.” Coleman, 690 F.3d at 814 (quoting Williams, 529 U.S. at 407).

Federal habeas review serves as “a guard against extreme malfunctions in the state criminal

justice systems, not a substitute for ordinary error correction through appeal.” Harrington v.

Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979)

(Stevens, J., concurring)).The Supreme Court has repeatedly emphasized that the Section 2254(d)

standard “is intentionally ‘difficult to meet.’” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015)

(quoting White v. Woodall, 572 U.S. 415, 419 (2014), and Metrish v. Lancaster, 569 U.S. 351, 358

(2013)).

Even an incorrect or erroneous application of the federal precedent will not justify habeas

relief; rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner

must show that the state court’s ruling on the claim being presented in federal court was so lacking

in justification that there was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. “A state court’s

decision is reasonable, even if incorrect in our independent judgment, so long as ‘fairminded jurists

could disagree’ on the correctness of the state court’s decision.’” McDaniel v. Polley, 847 F.3d

887, 893 (7th Cir. 2017) (internal citations omitted). For habeas relief to be granted, the state

court’s application of federal precedent must have been “objectively unreasonable,” meaning

“something like lying well outside the boundaries of permissible differences of opinion.” Jackson

v. Frank, 348 F.3d 658, 662 (7th Cir. 2003)(internal citations omitted).

2. Timeliness, Exhaustion,and Procedural Default

In addition to the requirement for timely filing under the AEDPA, a habeas petitioner must

clear two procedural hurdles before a court may reach the merits of his habeas corpus petition:

exhaustion of remedies and procedural default.Boltonv. Akpore,730 F.3d 685, 694-696 (7th Cir.

2013). Before seeking habeas relief, a petitioner is required to bring his claim(s) through “one

complete round of the State’s established appellate review process” because “the exhaustion

doctrine is designed to give the state courts a full and fair opportunity to resolve federal

constitutional claims before those claims are presented to the federal courts.” O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999); see also 28 U.S.C. §2254(c). Under the Illinois two-tiered

appeals process, habeas petitioners must fully present their claims not only to an intermediate

appellate court, but also to the Illinois Supreme Court, which offers discretionary review in cases

such as this one.Id.Failure to do so results in procedural default.

Respondent asserts that several claims raised by Coleareprocedurally defaulted.

ANALYSIS

Claim 1 – Jury Instruction on Accomplice Testimony

Cole argues that “the trial court abused its discretion when it refused to instruct the jury

pursuant to I.P.I. Criminal No. 3.17 that the testimony of an accomplice should be viewed with

suspicion.” (Doc. 1, p. 23).The point here and in the state courts was presented as a matter of state

law,i.e., whether Chandra Jones qualified as an accomplice to Cole’s crimes.

28 U.S.C. §2254 affords habeas relief only where a petitioner’s custody violates federal

law.Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011), citing Estelle v. McGuire, 112 S. Ct. 475, 480

(1991). Because Cole’s first claim is based on state law,it cannot be considered here.

In his Reply (Doc. 21), Cole states that he intended to “constitutionalize” his first claim,

and he invokes the Fifthand Fourteenth Amendments.This does not carry the day fortwo reasons.

First, the argument he makes is still grounded in state law, i.e., that Chandra Jones should have

been considered as an accomplice and the trial court abused its discretion in refusing to give the

accomplice testimony instruction. (See Doc. 21, p. 2). Second, Cole did not fairlypresent a federal

constitutional claim to the state courts because he did not argue in state court that the failure to

give the accomplice testimony instruction violated his Fifth or Fourteenth Amendment rights.

Thus,any such claim is procedurally defaulted and cannot be considered here. McDowell v. Lemke,

737 F.3d 476, 482 (7th Cir. 2013).

Claim 2 –Confrontation Clause; Lindsay McIntosh’s Testimony

Cole argues here that Lindsay McIntosh’s testimony about Krysta Donoho’s statements

violatedthe Confrontation Clause. The point as presented to the state court was that it was error to

admit the testimony under the co-conspirator exception to the hearsay rule because Donoho’s

statements were not made in furtherance of the conspiracy. The Appellate Court held on direct

appeal that no error occurred because Donoho’s request for a false alibi was an attempt to conceal

the conspiracy, and her admission that she set someone up and he got killed was an admission

against her own penal interest. Further, she said only that Cole had been with her, not that Cole

had committed the murder. (See Doc. 18-4, p. 7).

McIntosh’s testimony does not presenta Confrontation Clause issue. Under Supreme Court

precedent, “a statement cannot fall within the Confrontation Clause unless its primary purpose was

testimonial.” Ohio v. Clark,576 U.S. 237, 135 S. Ct. 2173, 2180(2015). A statement is testimonial

where the “‘primary purpose’ of the conversation was to ‘creat[e] an out-of-court substitute for

trial testimony.’” Ibid. Statements made to persons who are not law enforcement officers are

“significantly less likely to be testimonial than statements given to law enforcement officers.” Id.

at 2182.

The primary purpose of the conversations between McIntosh and Donoho was not to create

an out-of-court substitute for trial testimonyin Cole’s trial. Rather,Donoho’s evident purpose was

to create a false alibi for herself. Therefore, there was no Confrontation Clause issue.

Claim 3–Ineffective Assistancefor Failure to Request Jury Instructions

A claim of ineffective assistance of counsel must be analyzed under Strickland v.

Washington,466 U.S. 668 (1984). Analysis under Stricklandand on habeas review under Section

2254 are both highly deferential. Where, as here, both apply, the review is “doubly” deferential.

Harrington v. Richter, 562 U.S. 86, 105 (2011). Further, because Strickland sets forth a general

standard, “the range of reasonable applications is substantial.”Ibid.

In order to show ineffective assistance of counsel, a petitioner must demonstrate (1) that

counsel’s performance “fell below an objective standard of reasonableness” (“the performance

prong”), and (2) “that the deficient performance prejudiced the defense” (“the prejudice prong”).

Strickland, 466 U.S. at 687-88. A petitioner must satisfy both prongs of the Stricklandanalysis to

be eligible for habeas relief. There is no mandatory order for the analysis, and a habeas court is

not required to address both prongs if the petitioner has failed to make a sufficient showing on one.

Id.at 697.

Under the first Stricklandprong, the Court must inquire into “the objective reasonableness

of counsel’s performance.” Harrington, 562 U.S. at 110. “Strickland does not guarantee perfect

representation, only a ‘reasonably competent attorney.’” Id. To avoid the temptation to second-

guess counsel’s assistance, there is a strong presumption of adequate assistance and the exercise

of reasonable professional judgment. Id. at 107-08. Indeed, a petitioner’s right to effective

assistance of counsel is violated only when counsel’s conduct, in light of all the circumstances,

“[was] outside thewide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

To satisfy the second prong, a petitioner must demonstrate “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, not just

conceivable.” Harrington, 562 U.S. at 112. Ultimately, “[t]he focus of the Strickland test for

prejudice … is not simply whether the outcome would have been different; rather, counsel’s

shortcomings must render the proceeding fundamentally unfair or unreliable.” Gray v. Hardy, 598

F.3d 324, 331 (7th Cir. 2010). Again, this Court’s task is to determine whether the state court’s

decision was contrary to or an unreasonable application of federal law.28 U.S.C. § 2254(d)(1).

On direct appeal, the Appellate Court found that counsel’s failure to request the two jury

instructionswas harmless. The failure to request an instruction that the jury could not consider any

out-of-court statements testified to by Detective Kemp for the truth of the matter asserted was

harmless because Detective Kemp testified about the course of theinvestigation and did not testify

as to the substance of any statements made by Watkins or Chandra Jones. Detective Kemp testified

that during the course of his interview of Watkins, “the officers ‘found that [the defendant] was

present’ during Farrar’s murder.” Noting that Cole’s presence was already established by other

testimony, the court reasoned that the failure to request the instruction was harmless. The court

found that the failure to request an instruction on the jury’s consideration of Cole’s incriminating

out-of-court statements was harmless because the jury was given another instruction on judging

the believability of witnesses and the weight to be given to their testimony. In addition, counsel

asked questions on cross-examination of Chandra Jones designed to suggest that her testimony

that Cole threatened to kill anyone who talked was recently fabricated. Counsel further attempted

to show that Ratasha Turner’s recollection of thatnight was not clear, thereby lessening the impact

of their testimony.(Doc. 18-4, pp. 7-9).

“By its terms, § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’ in state

court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”Harrington v. Richter, 562 U.S.

86, 98 (2011). The question for this Court is not whether it believes trial counsel was ineffective.

Rather, the “pivotal question is whether the state court’s application of the Stricklandstandard was

unreasonable.” Harrington, 562 U.S. at 101. In that vein, Section 2254, as amended by AEDPA,

“preserves authority to issue the writ in cases where there is no possibility fairminded jurists could

disagree that the state court’s decision conflicts with this Court’s precedents. It goes no further.”

Harrington, 562 U.S. at 102. As the Seventh Circuit has observed, “the bar for establishing the

unreasonableness of a state court’s application of Strickland ‘is a high one, and only a clear error

in applying Stricklandwill support a writ of habeas corpus.’” Jones v. Brown, 756 F.3d 1000, 1007

(7th Cir. 2014) (citing Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009)).

Cole does not come close to demonstrating a clear error in the state court’s application of

Strickland. The state court did not directly cite Strickland, but it was not required to do so. Early

v. Packer, 537 U.S. 3, 8 (2002). The state court did cite People v. Graham, 206 Ill. 2d 465, 476,

795 N.E.2d 231, 238 (2003), which discussed Strickland. The Appellate Court’s analysis

demonstrates that it understood the two-part Stricklandrule and applied it in a reasonablemanner.

Cole has not demonstrated that it was unreasonable to conclude that the outcome was not

substantially likely to have been different had the two instructions been given to the jury. The state

court’s conclusion was certainly within the boundaries of permissible differences of opinion

among fairminded jurists in applying Strickland.SeeHarrington, 562 U.S. at 102.

Claim 4 –Confrontation Clause; Detective Kemp’s Testimony

Cole’s argument here centers on Detective Kemp’s testimony that, during the course of his

investigation, he interviewed Chandra Jones and Christopher Watkins and learned that Cole had

been present at Farrar’s murder. In addition, the prosecutor prefaced a question to Kemp with the

statement, “So you at this point have learned that [the defendant], Chris Watkins, and Krysta

Donoho were involved in the crime.” (Doc. 18-10, p. 2). Defense counsel did not object to the

prosecutor’s statement. Cole argues that Kemp’s testimony about Watkins’s statement, amplified

by the prosecutor’s statement, violated the Confrontation Clause.

Cole raised this claim in his postconviction petition.(Doc. 18-19, pp. 20-25). In affirming

the dismissal of the petition, the Appellate Court held that the claim as to Detective Kemp’s

testimony about Watkins’s statement was raised in a slightly different form on direct appeal and

so was properly dismissed by the postconviction petition court as res judicata.Andthe claim about

the prosecutor’s statement did not prejudice Cole because Chandra Jones testified that he was

involved in the crime.(Doc. 18-10, p. 3).

The claim that Cole presents here is procedurally defaulted because it was not raised in one

full round of state court review. The claim was presented in his postconviction petition and on

appeal, but it was not raised in his PLA. The PLA argued only that the trial court’s dismissal was

erroneous becausethe postconviction petition raised an arguable claim of ineffective assistance by

appellate counsel. (See PLA, Doc. 18-11). Procedural default is an affirmative defense, however,

that must be raised by the respondent. Cheeks v. Gaetz, 571 F.3d 680, 685 (7th Cir. 2009).

Respondent does not argue that this claim is procedurally defaulted. Rather, he argues that the state

court correctly held on direct appeal that Detective Kemp testified only as to the course of his

investigation, and the Appellate Court correctly held on appeal from the dismissal of the

postconviction petition that a Confrontation Clause argument was precluded by res judicata.

Further, he argues that any error regardingDetective Kemp’s testimony was not prejudicialenough

to warrant habeas relief.

Without deciding that there was an error, this Court agrees that any error regarding

Detective Kemp’s testimony does not merit habeas relief. A federal court may not grant habeas

relief unless a constitutional violation “had substantial and injurious effect or influence in

determining the jury’s verdict.” Davis v. Ayala, 576 U.S. 257, 135 S. Ct. 2187, 2197-98 (2015).

Petitioner must show “more than a reasonable possibility” that the error was harmful. Id. at 2198.

Cole cannot make the required showinghere. Respondent correctly argues that, in light of

the other evidence establishing Cole’s involvement, Detective Kemp’s fleeting reference to

Watkins’s interview and the prosecutor’s statement were harmless. That other evidence includes

Chandra Jones’s testimony, corroborating phone records and surveillance video from Casey’s,

Circle K, and McDonald’s, Ratasha Turner’s testimony, McIntosh’s testimony, and Melton’s

testimony.

Claim 5–Ratasha Turner’s Testimony

Cole argues that his due process rights were violated by Ratasha Turner’s testimony that

to “hit a lick” means to commit a robbery.

Respondentargues, correctly, that this claim is procedurally defaulted. Cole did not present

a stand-alone constitutionalclaim about Turner’s testimony for one full round of state court review.

Cole says in his Petition that he included this claim in a motion for leave to file a supplemental

pro sebrief on direct appeal, but the Appellate Court denied him leave to file the pro se brief.(See

Doc. 1, pp. 14, 31). This claim is therefore defaulted because the state Appellate Court rejected it

on an independent and adequate state law ground, i.e., its general rule against hybrid

representation. See Clemons v. Pfister, 845 F.3d 816, 820 (7th Cir. 2017). Cole agrees that this

claim is procedurally defaultedand should not have been included in his Petition.(Doc. 21, p. 10).

Claim 6 –Ineffective Assistance of Trial Counsel

Cole argues that trial counsel was ineffective in that he failed to (a) object to Turner’s

testimony that to “hit a lick” means to commit a robbery or introduce evidence to the contrary;

(b)request a recess to retake photographs of the victim’s home at night; and (c) to interview and

call purported alibi witnesses.

The claim about Turner’s testimony was raised in his postconviction petition. Again,

because the PLA raised only ineffectiveassistance by appellate counsel, this claim is procedurally

defaulted. But Respondent has not raised procedural default. He argues instead that the Appellate

Court’s resolution of the claim was a reasonable application of Strickland.

The Appellate Court noted that defense counsel started to object to Turner’s testimony

about the meaning of “hit a lick” but did not follow through on the objection. The Appellate Court

determined that Turner’s testimonywas not improper opiniontestimony because she was testifying

only to her understanding of the phrase, an understanding which was bolstered by Cole’s

possession of “hundreds of dollars.” Thus,counsel’s failureto object was not ineffective. The court

also correctly noted that deciding when to object is a matter of trial strategy and that it must defer

to counsel’s choice of trial strategy. Cole attached affidavits from his mother and another woman

stating that they used the phrase “hit a lick” to refer to winning money at gambling at a casino.

(Doc. 18-19, pp. 86-87).The state court held that counsel was not ineffective for failing to present

such evidence at trial because it was a matter of trial strategy. The court pointed out that Cole did

not argue that Turner’s understanding of “hit a lick” was incorrect, only that the phrase also had

another meaning. (Doc. 18-10, pp. 3-4).

Applying the “doubly” deferential standard of review mandated by Harrington, 562 U.S.

at 105, this Court must conclude that the state court’s resolution of the issue was a reasonable

application of federal precedent. Under Strickland’s performance prong, a court examines “the

objective reasonableness of counsel’s performance.” Harrington, 562 U.S. at 110. Counsel could

reasonably have decided that it was sound trial strategy to avoid highlighting Turner’s testimony

by objecting to it or offering evidence that “hit a lick” has another meaning. Hardamon v. United

States, 319 F.3d 943, 949 (7th Cir. 2003). And Cole does not claim that he furnished his lawyer

with evidence that he had, in fact, recently won a large amount of money gambling. The affidavits

attached to his petition do not state that Cole used “hit a lick” to mean winning money by gambling,

nor do they state that Cole had won a sizeable of money gambling at the relevant time. Counsel

could well have decided that offering the alternate meaning of the phrase without evidence of

recent gambling winnings would only serve to highlight Cole’s unexplained possession ofa large

amount of cash. Lastly, such evidence would have been contrary to counsel’s theory of the case.

Counsel argued that Turner’s testimony that Cole flashed a large amount of cash in McDonald’s

was not reliable.(Seetranscript of closing argument, Doc. 18-18, pp.86-87).

For his second claim of ineffective assistance, Cole argues that counsel should have

requested a recess to take photos of the front of Farrar’s house at night. Counsel had offered some

photos of Farrar’s house taken from inside a vehicle, the vantage point where Chandra Jones was

sitting. The photos were taken during the day, about two years after the murder. The trial court

sustained the state’s objection to the admission of the photos because there was a glare on the

windshield which obscured the view, and the pictures did not show the front of the house as it

looked in July 2006. Chandra Jones testified she was able to see into the house through a large

picture window. The house had been remodeled by the time the pictures were taken. In the

remodeling, that large picture window had been moved. The trial court did admit other photos of

the front of the houseshowing the distancefrom the vehicle to the house. (Doc. 18-10, pp. 5-6).

Cole raised this claim in his postconviction petition. As Respondent argues, however, the

claim is procedurally defaulted because it was not included in the PLA. (Doc. 18-11). The PLA

argued only the ineffective assistance of appellate counsel anddid not mention the photographs at

all.

In addition to being defaulted, the claim has no merit. The Appellate Court found that trial

counsel had not been ineffective because any photos taken at the time of trial would have been

inadmissible because they would not have accurately depicted the front of the house as it looked

in July 2006. (Doc. 18-10, pp. 6-7).“[A]n attorney is not ineffective for failing to raise a meritless

argument.” Washington v. Boughton, 884 F.3d 692, 701 (7th Cir. 2018).

For his third argument, Cole asserts that trial counsel failed to interview and call two alibi

witnesses. He argues that counsel should have called Shirleta Blount and interviewed Blount’s

mother. Cole raised this claim in his postconviction petition, but it was not included in the PLA.

(Doc. 18-11).Respondent argues, correctly, that this claim is therefore procedurallydefaulted.

The point is without merit in any event. The state court rejected the claim about Blount’s

mother because Cole did not furnish an affidavit stating what her testimony would have been, as

required by Illinois law.(Doc. 18-10, p. 6).“When a state court resolves a federal claim by relying

on a state law ground that is both independent of the federal question and adequate to support the

judgment, federal habeas review of the claim is foreclosed.” Richardson v. Lemke, 745 F.3d 258,

268 (7th Cir. 2014)(internal citationomitted).The Illinois affidavit requirement is an independent

and adequate state ground, which bars habeas review in federal court. Thompkins v. Pfister, 698

F.3d 976, 986 (7th Cir. 2012). And the state court reasonably concluded that counsel made a

strategic decision not to call Shirleta Blount after interviewing her. There was no affidavit from

Shirleta either, but a police report indicated that she told police that Cole was with her “around the

1st or 2nd of July 2006.” Cole called her at work and asked if he could go to her house. He came

to her workplace and picked up her housekey. Shirleta did not get home fromwork, however,until

11:45 p.m. Cole was at her house then and spent the night. (Doc. 18-10, p. 5). Because Shirleta’s

statement did not give Cole a strong alibi, the state court’s conclusionwas a reasonable application

of Strickland.

Claim 7 –Denial of Right toPresent A Complete Defense

For his final claim, Cole argues that the trial court denied him his due process right to

present a complete defense by excluding the photos of Farrar’s house taken from inside a vehicle

duringdaylight hours.

Respondent argues, correctly, that this claim is procedurally defaulted because it was not

presented for one full round of state court review. Cole says in his Petition that he included this

claim in a motion for leave to file a supplemental pro se brief on direct appeal, but the state

appellate court denied him leave to file the pro se brief.(Doc. 1, pp. 14, 36). This claim is therefore

defaulted because the state Appellate Court rejected it on an independent and adequate state law

ground, i.e., its general rule against hybrid representation. See Clemons v. Pfister, 845 F.3d 816,

820 (7th Cir. 2017) (holding that the Illinois rule against hybrid representation is an independent

and adequate state law ground).

In addition to being defaulted, the claim has no merit. A defendant has a right to present a

complete defense. Chambers v. Mississippi, 410 U.S. 284 (1973). One of the requirements for

showing a Chambers violation is that the petitioner must show that the excluded evidence was

“essential to [his] ability to present a defense,” not “cumulative, impeaching, unfairly prejudicial,

orpotentially misleading,” and “reliable and trustworthy.” Kubsch v. Neal, 838 F.3d 845, 858 (7th

Cir. 2016). Cole cannot make the required showing. He wanted to use the photographs for

impeachment to show that Chandra Jones could not have seen what she claimed she saw. (See

Petitioner’s Reply, Doc. 21, p. 13). The photographs were taken after the large picture window

that Jones said she looked through was moved and there was glare on the windshield, obscuring

the view. (Doc. 18-10, p.4). Because the photographs wereimpeachment material and potentially

misleading, there was no Chambers violation.

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this Court must “issue or

deny a certificate of appealability when it enters a final order adverse to the applicant.” A

certificate should be issued only where the petitioner “has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. §2253(c)(2).

In order for a certificate of appealability to issue, a petitioner must show that “reasonable

jurists” would find this Court’s “assessment of the constitutional claims debatable or wrong.” See

Slack v. McDaniel,529 U.S. 473, 484 (2000); Buck v. Davis, 137 S. Ct. 759, 773 (2017).Where a

petition is dismissed on procedural grounds without reaching the underlying constitutional issue,

the petitioner must show both that reasonable jurists would “find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.

Here, no reasonable jurist would find it debatable whether this Court’s rulings on

procedural default or on the substantive issues were correct. Accordingly, the Court denies a

certificate of appealability.Cole may reapply for a certificate of appealability to the United States

Court of Appeals, Seventh Circuit. See FED. R. App. P. 22(b); 28 U.S.C. § 2253(c)(1).

CONCLUSION

For the reasons set forth above, Demetrus Cole’s Petition for Habeas Relief Pursuant to

28 U.S.C. § 2254 (Doc. 1) is DENIED. This entire action is DISMISSED with prejudice. The

Clerk of Court shall enter judgment accordingly.

If Cole wishes to appeal the dismissal of this action, his notice of appeal must be filed with

this Court within 30 days of the entry of judgment. FED. R. App. P. 4(a)(1)(A). A motion for leave

to appeal in forma pauperis (‘IFP’’) must set forth the issues he plans to present on appeal. See

FED. R. App. P. 24(a)(1)(C). If Cole does choose to appeal and is allowed to proceed IFP, he will

be liable for a portion of the $505.00 appellate filing fee (the amount to be determined based on

his prison trust fund account records for the past six months) irrespective of the outcome of the

appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-

26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v. Jockisch, 133

F.3d 464, 467 (7th Cir. 1998). A proper and timely motion filed pursuant to Federal Rule of Civil

Procedure 59(e) may toll the 30-day appeal deadline. FED. R. App. P. 4(a)(4). A Rule 59(e) motion

must be filed no more than twenty-eight (28) days after the entry of the judgment, and this 28-day

deadline cannot be extended. Other motions, including a Rule 60 motion for relief from a final

judgment, do not toll the deadline for an appeal.

IT IS SO ORDERED.

DATED: May 6, 2020 7 )

te hipoetg!

NANCY J. ROSENSTENGEL

Chief U.S. District Judge

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