Marilyn Mulero v. Sheryl Thompson

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3875

M ARILYN M ULERO ,

Petitioner-Appellant,

v.

S HERYL T HOMPSON, Warden of the

Dwight Correctional Center,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 CV 03146—Charles R. Norgle, Sr., Judge.

A RGUED S EPTEMBER 15, 2011—D ECIDED F EBRUARY 7, 2012

Before B AUER, M ANION, and S YKES, Circuit Judges.

M ANION, Circuit Judge. Marilyn Mulero was charged

in Illinois with four counts of murder, two counts of

conspiracy to commit murder, and one count of

unlawful use of a firearm by a felon. She entered a

blind plea of guilty and the counts were then merged,

resulting in a state trial court entering judgment

against Mulero on two counts of intentional murder.

2 No. 10-3875

Mulero was eventually sentenced to life imprison-

ment—the mandatory minimum sentence for a double

homicide. After exhausting her state court remedies,

Mulero filed a petition for habeas relief in the district

court, alleging her trial attorney provided ineffective

assistance of counsel. The district court concluded that

many of Mulero’s ineffective assistance claims were

defaulted and held that the non-defaulted claims failed

on the merits. The district court then granted a certif-

icate of appealability limited to two issues—whether

Mulero’s attorney was ineffective for, prior to advising

Mulero concerning her desire to enter a blind plea of

guilty, 1) failing to investigate witnesses, and 2) failing

to obtain supporting services. Mulero presents those

issues on appeal, arguing ten specific alleged failings

by her attorney. We conclude that Mulero has preserved

only three of these ten arguments—those she presented

through one complete round of state court review. Specifi-

cally, Mulero has preserved only the questions of

whether her attorney was ineffective for 1) failing to

investigate witness Jackie Serrano; 2) failing to obtain

psychological evidence to support an argument that

Mulero’s confession was involuntary; and 3) failing

to recognize that witness Yvette Rodriguez had made

inconsistent statements and had a motive to lie. While

Mulero preserved these arguments, they all fail on

the merits. Accordingly, we affirm.

I.

Nearly twenty years ago, on May 11, 1992, then-21-year-

old petitioner Marilyn Mulero, 15-year-old Jacqueline

No. 10-3875 3

Montanez and 16-year-old Madeline Mendoza, all mem-

bers of the Maniac Latin Disciples gang, decided to seek

revenge for the Latin Kings’ murder of their friend,

“Mudo.” Mulero borrowed her brother’s car and one of

the trio obtained a small silver automatic gun to carry

out what they would later describe as a “mission” for

their “nation.” As they were leaving for their mission,

the threesome saw Yvette Rodriguez. Rodriguez would

later testify that they invited her to go “make a hit

with them and roll on some flakes,” which meant to

kill or fight the Latin Kings. Rodriguez declined.

Mulero then drove Montanez and Mendoza into

Latin Kings territory, where they saw two men in another

car, Jimmy Cruz and Hector Reyes, whom Montanez

recognized as Latin Kings. The young women invited

Cruz and Reyes to “party” with them in nearby

Humboldt Park. After they all arrived, Montanez went

into the bathroom with Reyes and shot him in the back

of the head, killing him. Montanez left the bathroom

and, according to Mulero’s original confession, then

handed Mulero the gun and Mulero shot Cruz in the

back of the head, killing him. The three then drove off.

At the time of the shooting, about 12:15 a.m. on May 12,

1992, Jackie Serrano was looking out of the window of

her nearby apartment. She would later testify that she

looked into the park after hearing some voices and

giggling and that she saw three women, one of whom

was taller than the others, and two men. She saw the

taller female enter the restroom with a male, and after

hearing a firecracker sound, Serrano saw her emerge

4 No. 10-3875

from the restroom alone. Serrano then saw a shorter

female go behind the second male, observed a flash

behind that man, and saw him fall to the ground. This

evidence was consistent with Montanez shooting

Reyes and Mulero shooting Cruz, as Montanez is 5'7"

and Mulero is 5'1".

After the shooting, Rodriguez saw Mulero, Montanez,

and Mendoza back in their neighborhood, and Mulero

and Montanez were bragging about having murdered

Cruz and Reyes. Later that evening, police arrested Rod-

riguez on a drug offense and Rodriguez identified

Mulero, Montanez, and Mendoza as the perpetrators of

Cruz’s and Reyes’s murders. The next day, officers

arrested Mulero and Montanez, and a few days later

they arrested Mendoza.

Following her arrest and substantial questioning,

Mulero gave a court-reported statement to a Chicago

detective and an assistant state’s attorney. In her state-

ment, she acknowledged her involvement as detailed

above. Additionally, after she confessed to the murders,

while being escorted through the police station, a televi-

sion news camera captured Mulero shouting gang

slogans, “KK,” which means “king killers,” and flashing

gang signals with her hands.

The state charged Mulero with four counts of murder,

two counts of conspiracy to commit murder, and one

count of unlawful use of a firearm by a felon. On June 5,

1992, a Cook County Public Defender appeared on

behalf of Mulero. The Public Defender represented

Mulero until around early 1993, and during that time,

No. 10-3875 5

among other things, the Public Defender had an investiga-

tor speak with Serrano and filed a motion to suppress

Mulero’s confession. Then sometime in early to mid-1993,

a couple for whom Mulero used to babysit hired a

private attorney, Jeremiah Lynch, to represent Mulero.

Lynch apparently filed an amended motion to suppress

and then argued that motion. In June 1993, the state

court denied the motion to suppress Mulero’s confession,

finding that Mulero’s statement to the police was

voluntary and that there were no promises, misrepre-

sentations, or fabrications by the police.

Two months later, in August 1993, Montanez was

convicted of the murders of Cruz and Reyes and sen-

tenced to life imprisonment. (Because Montanez was a

minor, she did not qualify for the death penalty.) At

Montanez’s trial, the prosecution presented Montanez’s

court-reported statement, which was consistent with

Mulero’s confession, and testimony from, among others,

Rodriguez and Serrano. Following Montanez’s convic-

tion, Mendoza pleaded guilty on September 22, 1993, to

one count of murder of Cruz and one count of conspiracy

to murder Reyes. At her change of plea hearing, Mendoza

swore under oath that Montanez had shot Reyes and

that Mulero had shot Cruz. Less than a week later, on

September 27, 1993, Mulero pleaded guilty to all counts

without the benefit of a plea agreement—this is referred

to as a blind plea.

At her change of plea hearing, Mulero testified that

she was pleading guilty because she knew she was guilty

and that it was her idea to plead guilty. Following

6 No. 10-3875

Mulero’s guilty plea, the counts were merged, resulting

in a state trial court entering judgment against Mulero

on two counts of intentional murder. After pleading

guilty, Mulero proceeded to the sentencing phase of

the proceedings. In Illinois, the only possible sen-

tences for two counts of intentional murder were life

imprisonment without possibility of parole, or death. On

November 12, 1993, a jury sentenced Mulero to death.

On December 17, 1993, Lynch filed a motion for a new

sentencing hearing, arguing that the trial court had erred

in allowing the prosecution to argue at the sentencing

hearing that Mulero was not truly remorseful for the

crimes because she had filed a motion to suppress her

confession. The trial court denied that motion and

entered the sentence of death against Mulero.

Mulero appealed her death sentence directly to the

Illinois Supreme Court. She also, on January 6, 1994, filed

a pro se motion to withdraw her guilty plea. In her

motion to withdraw her guilty plea Mulero argued, among

other things, that Lynch had coerced her into pleading

guilty. Counsel was later appointed to represent Mulero

and to argue this motion. At the trial court’s hearing on

Mulero’s motion to withdraw her guilty plea, Lynch

testified at length. Lynch stated that he was hired by a

family for whom Mulero used to babysit and that he

took over the case from the Public Defender’s office.

Lynch noted that he visited the crime scene twice, re-

viewed discovery, and reviewed the Public Defender’s

file, including a statement from one of the Public De-

fender’s investigators who had interviewed Serrano.

Lynch also indicated that Serrano’s statement might

No. 10-3875 7

have implicated the taller woman (and thus not Mulero)

as the shooter of the second victim outside the rest-

room, but that Serrano’s statement was not definitive

on whether Mulero or the taller woman had done the

second shooting. Lynch also testified that he had

reviewed the various police reports, including reports

by two different officers which contained conflicting

stories from Rodriguez—one which stated that Mulero

had shot one of the victims and the other which

indicated that Montanez had shot both victims. Lynch

further stated that the State had made no plea offer

and refused to participate in a pre-trial plea conference.

Additionally, Lynch testified that when he met with

Mulero in August 1993, Mulero directed him to enter a

guilty plea on her behalf. Lynch stated that he was sur-

prised by Mulero’s request and told her to think about

it. He also explained that he did not want to discuss a

plea at that time because Mulero’s request at this meeting

came directly on the heels of Montanez’s recent con-

viction and following the court’s previous denial of

Mulero’s motion to suppress. Lynch added that he also

wanted to think more about such a strategy.

When they next met, Lynch and Mulero discussed

for about an hour the pros and cons of entering a blind

plea of guilty. Lynch noted the risk in entering such a

plea was that Mulero could be sentenced to death. But

he also noted that there might be an advantage in

pleading guilty because it might convince the jury to

spare Mulero’s life because it could show that, after

having had time to think about her actions, Mulero was

8 No. 10-3875

truly remorseful. And thus her plea would offset the

negative impression naturally flowing from the news

videotape which showed Mulero as proud of her ac-

tions. Lynch testified that in addition to discussing

the pros and cons in general, he also discussed the

strength of the case against Mulero and the weight of

the evidence. Lynch explained that the discovery and

other evidence included: Mulero’s court-reported con-

fession and her claims of coercion, Montanez’s confes-

sion, the videotape evidence, Rodriquez’s statements—

including the conflicting aspects of those statements

concerning whether there was one shooter or two—

Serrano’s eyewitness account, and the Public Defender’s

investigator’s statement that Serrano may have im-

plicated the taller woman as the shooter of the second

victim. Lynch stressed that he did not tell Mulero one

way or the other what to do—as he said, he made no

recommendation “whatsoever” about whether Mulero

should plead guilty. Rather, as Lynch explained, after

discussing the evidence with her, Mulero decided on

her own that she wanted to plead guilty.

Mulero also testified at the hearing on her motion to

withdraw her guilty plea. People v. Mulero, 680 N.E.2d

1329, 1345 (Ill. 1997). She testified that it was Lynch’s

idea for her to plead guilty and that she pleaded guilty

because trial counsel did not give her “much of a choice.”

Id. In addition, in support of her motion to withdraw her

guilty plea, Mulero presented the testimony of a psycho-

logist, Michael Kovar. Id. Dr. Kovar testified that he

conducted several psychological tests on Mulero, which

showed that she was highly suggestible and easily

No. 10-3875 9

misled. Id. He further concluded that Mulero had de-

ficiencies in “the ‘fund’ of information, vocabulary, and

commonsense reasoning.” Id. And “[b]ased on his test

findings, her mental status, her history and her overall

presentation, Dr. Kovar concluded that [Mulero’s] plea

of guilty was not knowingly and intelligently made,

given defendant’s lack of competence at the time she

pled guilty.” Id. Dr. Kovar further diagnosed Mulero

as “having a depressive disorder, a general anxiety disor-

der, and presently manifesting borderline intellectual

functioning.” Id.

The state trial court denied Mulero’s motion to with-

draw her guilty plea on December 7, 1994. The state

court found Dr. Kovar’s testimony not credible, noting he

was “not a psychiatrist” and “not a medical doctor.” The

judge then elaborated on his reasons for rejecting

Dr. Kovar’s testimony and Mulero’s motion to with-

draw her guilty plea, stating:

[Dr. Kovar] suggests to this Court that he knew what

her mental state was and her suggestability when

she had conversations with her lawyer and when

she pled guilty in front of me, and I recall it very, very

well and I have an advantage on some of the parties.

I was here for these proceedings. And I was also

here when Mr. Jeremiah Lynch tried the case. I found

him to be a very professional, credible, excellent

lawyer, probing cross-examination, conducted him-

self in an extremely credible manner. He hasn’t been

here in the last few days to see his reputation and

his ability besmirched, but I believe him and I heard

10 No. 10-3875

him testify relative to this motion and he was an

extremely credible, straightforward, truthful witness.

And he said one key thing. That Marilyn Mulero it

was her idea to plead guilty, not his, and her idea

to plead guilty came after she lost a motion to sup-

press the court reporter [sic] confession in which

she admitted the offense and after her co-defendant

Jacqueline Montanez, also known as Loco, was

found guilty in about half an hour on the same evi-

dence. She suggested to Jeremiah Lynch that if she

were to plead guilty what would that mean, and she

had numerous discussions on the pros and cons

of pleading guilty. . . . [S]he knew that there was testi-

mony from a newsreel in a videotape taken by one

of the media in which after the statement she and

Montanez come [sic] out of a room and cockily

wearing gang clothes, giving gang signals so to

show no remorse whatsoever, and they discussed

and Mr. Lynch testified to this, what the advantage

would be to plead guilty, and that would be that

she would show the jury that she had remorse for

what she did because it was almost a foregone con-

clusion that she did it and perhaps that would be

in her benefit to plead guilty. . . . That was her

choice. She entered that plea in front of me. She was

admonished as to what the penalties were, what

her rights were. She indicated to me that she under-

stood and I believed her, and I’ve been talking

to defendants for a long time, that she did it know-

ingly, voluntarily and intelligently. And she also did

it after numerous, numerous conversations with her

No. 10-3875 11

attorney. And it was a remarkable decision at the

time. There were advantages to it. Her perceived

advantages. They didn’t work out that way but at

the time she did it she did it from an intelligent,

informed viewpoint that perhaps this was the best

way to go. And there’s no question that Mr. Lynch

in my view, and this is the only case he tried in

front of me, but the way he conducts himself as a

competent attorney. That’s what lawyers are for.

He told her the pros and the cons. He didn’t tell her

you got to go this way. She’s the one that made

that decision. And I’ll tell you why I know that. Be-

cause Lynch said it and I believe him, but more im-

portantly, she said it. In front of the jury after

taking the same oath that she took here today and

proceeded to lie. Her motion to withdraw the guilty

plea is denied.

After Mulero lost her motion to withdraw her guilty

plea, she appealed the denial to the Illinois Supreme

Court, arguing that the trial court erred in ruling that

Dr. Kovar’s testimony was not credible based solely on

the fact that he was a clinical psychologist and not a

medical doctor. Mulero, 680 N.E.2d at 1344. The

Supreme Court rejected Mulero’s challenge to the state

court’s ruling on her motion to withdraw her guilty

plea in Mulero, holding that although the court had

“improperly commented about [Dr. Kovar] not being

a medical doctor or a psychiatrist, [t]he record, how-

ever, demonstrates that the trial judge did not reject

Dr. Kovar’s credibility because he was not a medical

doctor or a psychiatrist. Rather, the trial judge did not

12 No. 10-3875

agree with Dr. Kovar’s conclusions because of his own

observations of defendant while presiding over the pro-

ceedings in this case, and because he found [Lynch] to

be credible.” Id. at 1345. The Supreme Court then con-

cluded that “the trial judge properly rejected

Dr. Kovar’s credibility in light of other evidence” and

found there was no basis for granting a new hearing on

the motion to withdraw Mulero’s guilty plea. Id. at 1341.

While Mulero lost her challenge to the denial of her

motion to withdraw her guilty plea, she prevailed on

her challenge to her death sentence. The Illinois

Supreme Court overturned her death sentence, holding

that the trial court had erred in allowing the prosecution

to introduce into evidence Mulero’s motion to sup-

press—either for substantive or impeachment purposes

at sentencing. Id. at 1340. The Supreme Court then re-

manded the case for a new sentencing hearing. Id.

At the second sentencing hearing, Mulero’s new attor-

ney, in arguing in favor of life imprisonment, suggested

that Mulero did not really shoot Cruz, although he ac-

knowledged that she was nonetheless legally accountable

for the murders under Illinois law. The second jury sen-

tenced Mulero to life imprisonment without possibility

of parole. Mulero’s Public Defender filed an Anders

brief, and the state appellate court affirmed Mulero’s life

sentence, holding there were no arguable issues for

appeal. See People v. Mulero, No. 1-99-0825 (Ill. App. Ct.

1999). Mulero did not file a Petition for Leave to Appeal

to the Illinois Supreme Court.

Mulero then filed four separate versions of a state post-

conviction petition between 1996 and 2006. In these

No. 10-3875 13

petitions, she alleged that her trial attorney, Lynch, was

ineffective in numerous ways. Each petition included

some overlap, but also made slightly different claims.

The state trial court denied her petitions for post-convic-

tion relief and Mulero appealed to the Illinois appellate

court, which affirmed. The Illinois Supreme Court then

denied Mulero leave to appeal.

After the state courts denied Mulero’s claims of ineffec-

tive assistance of counsel, she filed a petition for habeas

corpus in federal district court, again alleging ineffective

assistance of trial counsel from Lynch. She alleged numer-

ous supposed deficiencies, but the district court found

many of the claims procedurally defaulted and rejected

the remaining claims. The district court then issued

a certificate of appealability limited to two issues:

1) whether Lynch’s limited investigation into the facts

of the murders, particularly his admitted failure to inter-

view any witnesses, constitutes ineffective assistance

of counsel; and 2) whether Lynch’s failure to procure any

supporting services, including experts or investigators,

in violation of ABA death penalty case Guidelines, consti-

tutes ineffective assistance of counsel. Mulero appeals.

II.

As noted, the district court certified two issues for

appeal, the first concerning Lynch’s failure to investigate

and the second concerning his failure to obtain sup-

porting services. In her brief on appeal, Mulero presents

ten different alleged deficiencies by Lynch related to

his claimed unconstitutional failure to investigate and

14 No. 10-3875

failure to obtain supporting services.1 The government

responds that Mulero has procedurally defaulted on all

but three issues. We agree.

To preserve a federal claim for habeas review:

[i]f the claim comes from the Illinois state courts, the

petitioner must have presented each claim in the

habeas petition to the Illinois Appellate Court and to

the Illinois Supreme Court in a petition for discretion-

ary review. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45

(1999). As part of this requirement, a petitioner must

have fairly presented both the operative facts and

legal principles that control each claim to the state

judiciary. Wilson v. Briley, 243 F.3d 325, 327 (7th Cir.

2001). A petitioner’s failure to fairly present each

habeas claim to the state’s appellate and supreme

court in a timely manner leads to a default of the

claim, thus barring the federal court from reviewing

the claim’s merits. O’Sullivan, 526 U.S. at 848.

Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010).

1

Specifically, Mulero argues that Lynch was ineffective because

he did not 1) interview witnesses; 2) discover key impeachable

evidence; 3) use a key witness’s contradictory statement;

4) investigate the crime scene; 5) investigate bullet angulation

evidence; 6) reasonably consult with Mulero; 7) meaningfully

consult with the prior lawyer who worked on Mulero’s case;

8) consult with co-counsel; 9) attend conferences or seminars

to educate himself on how to effectively represent Mulero; and

10) consult with a mitigation expert to prepare himself for

the sentencing phase of Mulero’s trial.

No. 10-3875 15

In this case, as the government correctly points out,

Mulero only presented three of the claimed deficiencies

through one complete round of state court review. Mulero

does not really argue otherwise; instead she merely

counters that the district court concluded that she had

preserved all issues related to Lynch’s failure to

investigate witnesses and failure to obtain supporting

services. See Petitioner’s Reply Brief at 5-7. But “we

review a district court’s procedural default ruling de

novo.” Ward v. Jenkins, 613 F.3d 692, 696 (7th Cir. 2010).

Thus, we owe no deference to the district court’s view of

default, but rather review the state court record with

fresh eyes. We have done so and, in fact, Mulero only

presented three claimed deficiencies through one

round of Illinois review. Specifically, Mulero argued to

the Illinois appellate court that Lynch was ineffective

because he did not: 1) discover that Serrano claimed

to have seen the taller woman shoot Cruz; 2) obtain

psychological evidence to support an argument that

Mulero’s confession was involuntary; and 3) recog-

nize that he could call into question the only real

remaining evidence against Mulero—Rodriguez’s state-

ments—based on inconsistencies in her statements and

bias. Brief and Argument of Petitioner-Appellant to

Illinois appellate court at 10-17. While Mulero did

present numerous other claims of ineffective assistance

of counsel to the Illinois state trial court and in her

petition for review to the Illinois Supreme Court, those

other claims were not developed in her briefs to the

Illinois appellate court challenging the denial of her

petition for post-conviction review. Accordingly, only

16 No. 10-3875

the three issues noted above are preserved for our

habeas review.2

For the three preserved issues, our habeas review is

governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). “Under the AEDPA, a

petitioner for habeas relief must establish that the state

court proceedings resulted in a decision that (1) was

‘contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court’; or (2) was ‘based on an unreasonable

determination of the facts in light of the evidence pre-

sented in the State court proceeding.’ ” 28 U.S.C.

§ 2254(d)(1)-(2).

In her habeas petition, Mulero challenged her state

court conviction based solely on § 2254(d)(1) and then

based only on the “unreasonable application” prong of

(d)(1). Under the “unreasonable application” clause,

habeas relief is appropriate “if the state court correctly

identifies the governing legal principle from [Supreme

Court] decisions but unreasonably applies it to the facts

of the particular case.” McCarthy v. Pollard, 656 F.3d 478,

483 (7th Cir. 2011) (internal quotation omitted). Impor-

tantly, “[t]he focus of the reasonableness inquiry is on

2

While on appeal Mulero makes passing reference to her

innocence, she does not argue that her default should be

excused because of cause and prejudice or a fundamental

miscarriage of justice, and accordingly there is no basis to

excuse her default. See Promotor v. Pollard, 628 F.3d 878, 887

(7th Cir. 2010).

No. 10-3875 17

whether the state court’s application of clearly estab-

lished federal law is objectively unreasonable, not whether

it applied clearly established federal law correctly.” Id.

The federal law at issue here is Strickland v. Washington,

466 U.S. 668 (1984), which governs ineffective assistance

of counsel claims. Under Strickland’s familiar two-part

test, an attorney renders ineffective assistance of counsel

if 1) the attorney’s performance fell below “an objective

standard of reasonableness,” id. at 688, and 2) there is

a “reasonable probability that, but for counsel’s unprofes-

sional errors, the result of the proceeding would have

been different.” Id. at 694. “To satisfy Strickland in the

context of a guilty plea, a petitioner must show that coun-

sel’s advice regarding the plea was objectively unrea-

sonable and that there is a reasonable probability that

but for counsel’s error, [petitioner] would not have pled

guilty, but would have insisted upon a trial.” Ward,

613 F.3d at 698.

The Supreme Court in Hill v. Lockhart, 474 U.S. 52, 59

(1985), explained that “the ‘prejudice’ inquiry will closely

resemble the inquiry engaged in by courts reviewing

ineffective assistance challenges to convictions obtained

through a trial.” Id. at 59. The Court gave the following

example:

[W]here the alleged error of counsel is a failure to

investigate or discover potentially exculpatory evi-

dence, the determination whether the error “preju-

diced” the defendant by causing him to plead guilty

rather than go to trial will depend on the likelihood

that discovery of the evidence would have led

18 No. 10-3875

counsel to change his recommendation as to the plea.

This assessment, in turn, will depend in large part on

a prediction whether the evidence likely would have

changed the outcome of a trial.

Id.

With these principles in mind, we turn to Mulero’s

three ineffective assistance of counsel arguments.

Initially, we note that the Illinois state trial court did

not address the first prong of Strickland. In other words,

the state court never determined whether Lynch’s guid-

ance in advising Mulero concerning her desire to enter

a blind plea fell below “an objective standard of reason-

ableness.” Because the state court did not address

this question, our review would be de novo. Sussman v.

Jenkins, 636 F.3d 329, 350 (7th Cir. 2011). But we need

not reach that question because, as discussed below,

Mulero cannot establish that the state court’s conclu-

sion that she did not suffer prejudice was unreasonable.

First, Mulero argued that Lynch was ineffective for

failing to investigate Serrano and to obtain from Serrano

a statement that she had seen the taller woman (i.e.,

Montanez) shoot Cruz. In support of this argument,

Mulero pointed to affidavits sworn by an investigator

and an intern, in which they stated that on July 17, 1997,

Serrano informed them that she saw the taller of the

three women walk behind Cruz and shoot him. While it

is true that Lynch did not speak with Serrano or hire an

investigator to do so, the Public Defender from whom

Lynch took over the case had hired an investigator.

Lynch knew that the investigator had concluded that

No. 10-3875 19

Serrano’s statement indicated that she might have seen

the taller woman shoot the man outside the restroom.

But Lynch also determined that Serrano’s statement was

not definitive. Lynch testified that he spoke with Mulero

about the inconsistencies in Serrano’s statements and

that she nonetheless wanted to plead guilty. And the

state court found Lynch’s testimony credible. Given that

Lynch and Mulero already knew of the inconsistencies

in Serrano’s eyewitness reports based on a report by an

investigator hired by Mulero’s original attorney, there

are no reasonable grounds to believe that further inves-

tigation would have changed Lynch’s advice about en-

tering a blind plea or Mulero’s decision to enter such

a plea. Nor is there any reason to believe that obtaining

another out-of-court statement from Serrano would

have altered the strength of the case against Mulero:

Notwithstanding Serrano’s supposed statements in 1997

to an investigator and intern hired by Mulero’s latest

attorney that the taller woman shot Cruz, Serrano

testified at Montanez’s re-trial in November 1999 3 that

one of the shorter women was the second shooter.4

3

Montanez’s 1993 conviction was overturned in People v.

Montanez, 652 N.E.2d 1271, 1274 (Ill. App. 1995). Following a

second jury trial in November 1999, Montanez was again

convicted of the murders and sentenced to life imprisonment.

4

As we explained in Mendiola v. Schomig, 224 F.3d 589, 592 (7th

Cir. 2000), there may be many reasons why a witness would

tell a defendant’s friends or attorney what they want to hear:

“the formality of a court, the presence of the litigants, and the

(continued...)

20 No. 10-3875

Mulero’s second claimed deficiency—that Lynch failed

to obtain psychological evidence to support an argument

that Mulero’s confession was involuntary—fares no

better. In his motion to suppress, Lynch argued that

Mulero’s confession was psychologically coerced, but the

state court rejected this argument. Lynch also testified

that he discussed making a coerced-confession argument

with Mulero, but he doubted it would succeed given

her boastful display to the television cameras following

her confession. Moreover, the psychological evidence

later obtained from Dr. Kovar was rejected as not

credible by the state trial court and the Illinois Supreme

Court found that in light of the other evidence, the

trial court had properly rejected Dr. Kovar’s credibility.

Additionally, the assistant state’s attorney for Cook

County to whom Mulero confessed testified at her sen-

tencing hearing that during her confession Mulero was

very calm and in control of herself and did not indicate

any remorse for her actions. He added that it appeared

that Mulero was very proud of what she had done. This

testimony also would negate a coerced-confession argu-

4

(...continued)

gaze of a judge induce witnesses to hew more closely to the

truth than they do when speaking in private and attempting to

appease the losing side’s advocate”; “[s]ome witnesses fall

prey to influences—perhaps the persuasive influence of a

skilled advocate asking leading questions, perhaps the less

wholesome influence of the defendant’s friends. . . . People

fear the Latin Kings for a reason.” Or, as in this case, the

Maniac Latin Disciples.

No. 10-3875 21

ment. Under these circumstances, the state court did not

act unreasonably in concluding that had Lynch obtained

additional psychological evidence, it would not have

changed his advice or convinced Mulero to change her

mind about entering a blind plea of guilty.

Finally, Mulero argued to the state court that Lynch

should have recognized that he could call into question

the only real remaining evidence against Mulero—incon-

sistencies in Rodriguez’s statements and bias. Specif-

ically, Mulero pointed to contradictory statements by

Rodriguez—statements indicating that Mulero shot one

victim and Montanez the other, and another statement

indicating that Montanez shot both victims. Mulero

also stressed that Rodriguez gave her statements to

officers only after having been arrested for drug offenses.

Lynch, though, testified that he had reviewed the

Public Defender’s file and discovery and knew of the

inconsistencies in Rodriguez’s police statements, and

that he also knew that she was in custody on drug charges

at the time she implicated Mulero. Lynch further

stated that in discussing a potential guilty plea with

Mulero, he discussed the case she was facing and the

discovery evidence. Thus, there is no reason to believe

that Lynch did not recognize that he could challenge

Rodriguez’s testimony if Mulero pleaded not guilty and

proceeded to trial. There is also no reason to be-

lieve that had Lynch independently confirmed the incon-

sistencies, Mulero’s decision to enter a blind plea would

have changed. Nor is there any reason to think that

additional investigation of Rodriguez would result in

Mulero’s acquittal if she had decided to plead not guilty.

22 No. 10-3875

In the end, what we have is an overwhelming pros-

ecutorial case against Mulero, which included: Mulero’s

own confession to police and an assistant state’s attor-

ney; her post-confession behavior captured on camera;

Montanez’s confession implicating Mulero; Serrano’s

statements implicating Mulero; and Rodriguez’s state-

ments of the trio’s statements before and after the shoot-

ing. Lynch could have attempted to call into question this

evidence at trial, but he advised Mulero of the evidence

and the pros and cons of pleading guilty and she nonethe-

less decided to plead guilty. Further investigation would

not have added anything to this assessment. Moreover,

the inconsistencies in Serrano’s and Rodriguez’s prior

statements, which Mulero points to as evidence that

she did not shoot Cruz, do not help Mulero because

under Illinois law, Mulero was accountable whether or

not she pulled the trigger—the only difference being

whether she qualified for the death penalty. Under

these circumstances, even if Lynch’s performance was

objectively unreasonable because he did not recom-

mend against a blind guilty plea in light of the inconsis-

tencies in Serrano’s and Rodriguez’s testimony, it is not

reasonable to believe that Mulero suffered any prejudice.

Rather, the best that Mulero could hope for is what

she got—life in prison and not the death penalty.5

5

Finally, we note that Mulero, in passing, requests that this

court remand her case for a hearing, should this court not find

habeas relief appropriate. Mulero did not develop this argu-

ment, however, so it is waived. In any event, Mulero is not

(continued...)

No. 10-3875 23

III.

Nearly twenty years ago, Mulero pleaded guilty in

Illinois state court to two counts of murder and received

a sentence of life imprisonment. Even assuming her

attorney was deficient in failing to further investigate

inconsistencies or a motive to lie in statements by two

witnesses, or was deficient in failing to obtain psycho-

logical or IQ evidence to challenge Mulero’s confession,

the state court did not err in concluding that Mulero

suffered no prejudice. The evidence against Mulero

was overwhelming and there is no reasonable likelihood

that, in light of this overwhelming evidence, any further

investigation would have convinced Mulero to instead

plead not guilty and then alter the outcome of the pro-

ceedings, i.e., her conviction on two counts of murder

and life sentence. Accordingly, Mulero is not entitled to

habeas relief. We A FFIRM .

5

(...continued)

entitled to a hearing. AEDPA governs the availability of

evidentiary hearings on federal habeas review, and generally

bars them except in narrow exceptions inapplicable to

Mulero. See 28 U.S.C. §§ 2254(e)(2)(A), (B).

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