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Efrain Morales v. Johnson, 7th Cir No. 10-1696, 9/20/11

seventh circuit court of appeals decision

Habeas – Ineffective Assistance, State Court Failure to Reach – Standard of Review 

… When “no state court has squarely addressed the merits” of a habeas claim, however, we review the claim under the pre-AEDPA standard of 28 U.S.C. § 2243, under which we “ ‘dispose of the matter as law and justice require.’ ” Id. at 326 (quoting § 2243). This is “a more generous standard,” George v. Smith, 586 F.3d 479, 484 (7th Cir. 2009): “we review the petitioner’s constitutional claim with deference to the state court, but ultimately de novo,” Kerr, 639 F.3d at 326 (citing Harrington, 131 S. Ct. at 788 (“Even under de novo review, the standard for judging counsel’s representation is a most deferential one.”)).

As the district court found, no state court had “assessed the combined prejudice resulting from Callahan’s unreasonable performance vis-à-vis Katrina and Thomas Scimone.” Morales, 2010 WL 748203, at *36. Because no state court “fully considered” the prejudice prong of the ineffective assistance claim, we apply the pre- AEDPA standard of review. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) (“[O]ur review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis.”); George, 586 F.3d at 485 (“[W]e hesitate to apply a stricter standard of review without a clearer indication that Wisconsin fully considered [petitioner’s] claim on the merits.”). Regardless of the standard of review, this claim fails.

Habeas – Ineffective Assistance – Lack of Prejudice 

Counsel’s deficient failure to fully investigate potential alibi wasn’t prejudicial, given strength of eyewitness testimony and infirmities of alibi:

The two eyewitness identifications were substantial evidence against Morales and negated any possibility of Strickland prejudice from Callahan’s errors respecting Katrina and Thomas. See, e.g., Allen v. Chandler, 555 F.3d 596, 602 (7th Cir. 2009) (holding state court did not unreasonably apply Strickland in concluding that petitioner was not prejudiced by counsel’s elicitation of his postarrest silence where there was reliable and strong singlewitness identification of defendant at trial—store clerk observed the robber at close range, identified him without hesitation in photo array and at trial, and identified him as a frequent store customer, and surveillance video corroborated her account of the robbery). The record reveals that Crawford and Nevarro had sufficient opportunity to view Morales and they were paying attention to him during the shooting. In addition, Morales was no stranger to them; they knew him by name or sight. As Morales acknowledges, Callahan attempted to discredit Crawford’s and Nevarro’s testimony. And although their testimony was strong proof of Morales’s guilt, it was not the only evidence.

As for Morales’s alibi, the district court held an evidentiary hearing, observed Morales’s and Thomas’s demeanors, and concluded that their alibi testimony was not credible. This determination is a factual finding to which we accord great deference and “must not be set aside unless clearly erroneous.” Fed. R. Civ. P. 52(a)(6) ….

Habeas – Procedural Default – “Actual Innocence” Exception 

Procedural default may be excused to avoid a “fundamental miscarriage of justice,” such as conviction of an “actually innocent” petitioner. Morales’ conceded default of a claim of knowing prosecutorial use of perjured testimony doesn’t satisfy that exception, in view of various credibility determinations by the district court after an evidentiary hearing. In any event, his claim fails on the merits, because he failed to show either that the prosecution “had any reason to believe” a witness wasn’t telling the truth, or a likelihood that the testimony, if false, impacted the verdict.

Test for Napue violation recited:

… A conviction obtained through the knowing use of false testimony violates due process. Napue v. Illinois, 360 U.S. 264, 269 (1959). To obtain a new trial, a petitioner must establish that: (1) there was false testimony; (2) the prosecution knew or should have known it was false; and (3) there is a likelihood that the false testimony affected the judgment of the jury. United States v. Freeman, No. 09-4043, 2011 WL 2417091, at *3 (7th Cir. June 17, 2011). …

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