Paysun Long v. Kim Butler , 809 F.3d 299 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3327
PAYSUN LONG,
Petitioner-Appellant,
v.
KIM BUTLER,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:11-cv-1265-MMM — Michael M. Mihm, Judge.
____________________
ARGUED DECEMBER 8, 2014 — DECIDED OCTOBER 27, 2015
____________________
Before BAUER and HAMILTON, Circuit Judges, and ELLIS,
District Judge. *
ELLIS, District Judge. Petitioner-Appellant, Paysun Long
(“Long”) seeks reversal of the district court’s denial of his
petition for writ of habeas corpus filed pursuant to 28 U.S.C.
*The Honorable Sara L. Ellis, of the United States District Court for
the Northern District of Illinois, sitting by designation.
2 No. 13-3327
§ 2254. Long brings due process claims related to the prose-
cution’s failure to correct perjured testimony and use of ra-
cially-charged and improper comments during the trial, as
well as ineffective assistance of trial and appellate counsel
claims. We reverse and remand with instructions to the dis-
trict court to grant the writ of habeas corpus. The district
court’s writ should order that Long is released unless Illinois
gives notice of its intent to retry Long within a reasonable
time to be set by the district court.
I. BACKGROUND
Long has already been tried twice for the murder of Lar-
riec Sherman (“Sherman”). Sherman was shot in the Taft
Homes housing development in Peoria, Illinois, on June 11,
2001. When the responding officer arrived at the scene,
Sherman lay outside on the ground near a bicycle. Fifty to
sixty people were gathered around Sherman, who was
transported to a nearby hospital where he died from multi-
ple gunshot wounds.
Long was first tried for first degree murder in December
2001. No physical evidence tied Long to the crime, but the
state presented four witnesses who identified him as the
shooter. Two of those four witnesses named Long as the
shooter during the investigation, but recanted at trial. Wit-
ness Brooklyn Irby (“Irby”) identified Long as the shooter,
but then testified on the stand that she told the State’s Attor-
neys and their Investigator Frank Walter (“Walter”) that her
story about seeing Long shoot Sherman was a lie. In closing
argument, the prosecutor made several improper statements
not supported by the record evidence, including that two of
the witnesses changed their stories out of fear, resulting in
the reversal of Long’s conviction and a new trial.
No. 13-3327 3
The current petition is based on Long’s second trial in
January 2004. The State again presented the four eyewit-
nesses, one of whom maintained her identification of Long.
That witness, Keyonna Edwards (“Edwards”) stated she was
walking on the sidewalk when she saw Sherman riding a bi-
cycle behind her. According to her testimony, she then heard
gunshots, turned around, and from a distance of about six
feet saw Long shoot Sherman from behind. Edwards stated
she then cradled Sherman’s head in her hands and noticed
he had a gun in his pocket. She testified that another indi-
vidual approached and took that gun, then she left the scene
before the police arrived. The two witnesses who recanted
their identifications of Long during the first trial continued
to deny having seen him shoot Sherman, despite their prior
videotaped statements that Long approached Sherman and
shot him from behind.
The fourth eyewitness, Irby, testified that she was walk-
ing through the Taft Homes when she saw Long shoot
Sherman from behind as Sherman was riding his bicycle.
Irby did not notice anyone cradling Sherman’s head and
when she approached Sherman, she saw a gun on the
ground. Irby stated she then left the area. Although Long’s
defense counsel cross-examined Irby about her prior trial
testimony recanting her identification of Long, she denied
ever telling the State’s Attorneys and State’s Attorney Inves-
tigator that her prior identification was false and compelled
by police threats to have her children removed from her
care. The same prosecutor who examined Irby in the first
trial also examined Irby in the second trial, but did not cor-
rect Irby’s denial of her prior sworn testimony. After the end
of the State’s case-in-chief, defense counsel presented Inves-
4 No. 13-3327
tigator Walter, who testified that Irby recanted her identifica-
tion of Long at Long’s first trial.
During closing arguments, the prosecutor made a series
of comments along the theme that no evidence or theory was
presented that another individual committed the crime. In
addition, during rebuttal argument, the prosecutor used a
personal anecdote about her experience with another mur-
der case involving a reluctant witness. Also during rebuttal,
in the context of discussing the crowd of people surrounding
Sherman’s body, the prosecutor referenced a scene in the
movie “Gone With the Wind,” where the slave Prissy tells
Miss Scarlett she “don’t know nothing about birthing no ba-
bies,” stating:
Officer Wetzel told you when he got there
there were 40 to 60 people around Mr. Sher-
man. And sorry, Miss Scarlet, but we don’t
know nothing about birthing no babies, we just
don’t [know] nothing. 40–60 people standing
around that night ... So, on the night of June 11,
2001, although there are 40 to 60 people around
this dead young man or dying young man, no-
body knew nothing, nobody came forward,
nobody knows nothing.
SA.168–69. The prosecutor also referred to the contents of a
letter written by Irby that had not been admitted into evi-
dence, at which point the judge sua sponte objected to the
hearsay reference. During jury deliberations, the jury sent
the judge a note asking why the letter was not entered into
evidence, but could still be referenced. The trial judge re-
sponded that the jury “should consider the testimony and
No. 13-3327 5
exhibits that have been admitted in evidence according to
the written instructions that you received.” SA.108.
The jury found Long guilty and the judge sentenced him
to fifty-one years in prison.
Long raised two issues on direct appeal. First, appellate
counsel challenged the Gone With the Wind and personal an-
ecdote references in the prosecution’s closing statement.
Second, appellate counsel asserted an ineffective assistance
of trial counsel claim based on trial counsel’s failure to call
Long’s sister, who would have corroborated Irby’s statement
that she did not see anyone cradling Sherman’s head after he
was shot. The Illinois Appellate Court affirmed Long’s con-
viction, finding his arguments regarding the closing argu-
ment comments waived because he failed to object at trial
and raise the issue in post-trial motion practice, and other-
wise not so improper as to require reversal, and finding the
ineffective assistance of counsel claim adequately deter-
mined by the judge post-trial. Long filed a petition for leave
to appeal (“PLA”), which was denied.
Long filed a timely pro se state post-conviction petition
that argued appellate counsel was ineffective for failing to
present the claims that the evidence at trial was insufficient
to convict and that the State allowed the perjured testimony
of Irby. Counsel was appointed, but he did not file an
amended petition. The petition was dismissed.
Long appealed this dismissal, arguing that appellate
counsel was ineffective for failing to appeal the perjured tes-
timony issue, and that post-conviction counsel was ineffec-
tive for failing to amend the petition to include claims based
on the hearsay letter reference, comments in closing argu-
6 No. 13-3327
ment that there was no evidence of another perpetrator and
references to facts not in evidence, and ineffective assistance
of trial counsel. A divided panel of the Illinois Appellate
Court upheld the dismissal of Long’s state post-conviction
petition, holding that Long was not prejudiced by the State’s
failure to correct the false testimony at trial, therefore appel-
late counsel was not ineffective, and post-conviction counsel
provided reasonable assistance because he was not obligated
to raise additional allegations of ineffective assistance of ap-
pellate counsel. The Illinois Supreme Court denied Long’s
PLA.
Long filed the instant petition pro se on July 19, 2011, ar-
guing: (1) he was denied a fair trial due to the State’s know-
ing use of Irby’s perjured testimony and improper comments
in closing argument, including the Gone With the Wind refer-
ence; (2) ineffective assistance of appellate counsel for failing
to argue the perjured testimony issue; and (3) ineffective as-
sistance of post-conviction counsel for failing to amend the
petition to include additional allegations of ineffective appel-
late counsel. The district court dismissed Long’s petition,
finding the prosecutorial misconduct claims were procedur-
ally defaulted and meritless, as Long had not shown a rea-
sonable likelihood that Irby’s testimony or the closing argu-
ment comments prejudiced the trial outcome. The district
court also found Long’s ineffective assistance of counsel
claim, although not procedurally defaulted, to be without
sufficient merit to overturn the state court. The district court
dismissed petitioner’s post-conviction counsel ineffective as-
sistance claim as procedurally barred.
No. 13-3327 7
II. ANALYSIS
On the appeal of a writ of habeas corpus denial, the
Court reviews a district court’s rulings on issues of law de
novo and findings of fact for clear error. Denny v. Gudman-
son, 252 F.3d 896, 900 (7th Cir. 2001). The Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) established
that a federal court may grant habeas relief on a claim adju-
dicated by a state court on the merits only if that adjudica-
tion “(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the ev-
idence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). “When the case falls under § 2254(d)(1)’s ‘contrary
to’ clause, we review the state court decision de novo to de-
termine the legal question of what is clearly established law
as determined by the Supreme Court and whether the state
court decision is ‘contrary to’ that precedent.” Denny, 252
F.3d at 900. Factual findings by the state court that are rea-
sonably based on the record are presumed correct unless re-
butted by clear and convincing evidence. See id.; 28 U.S.C.
§ 2254(e)(1). AEDPA “stops short of imposing a complete
bar on federal court relitigation of claims already rejected in
state proceedings,” but imposes a difficult standard that re-
quires the petitioner to show the state court ruling “was so
lacking in justification that there was an error well under-
stood and comprehended in existing law beyond any possi-
bility of fairminded agreement.” Harrington v. Richter, 562
U.S. 86, 131 S. Ct. 770, 786–87, 178 L. Ed. 2d 624 (2011).
8 No. 13-3327
However, a federal court may not consider the merits of a
habeas claim unless that federal constitutional claim has
been fairly presented to the state courts through one com-
plete round of review, either on direct appeal or through
post-conviction proceedings. O’Sullivan v. Boerckel, 526 U.S.
838, 844–45, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999); Malone v.
Walls, 538 F.3d 744, 753 (7th Cir. 2008). “Fair presentment
contemplates that both the operative facts and the control-
ling legal principles must be submitted to the state court.”
Malone, 538 F.3d at 753 (citation omitted) (internal quotation
marks omitted). Failing to properly present the federal
claim at each level of state court review results in procedural
default, which can only be overcome if the petition demon-
strates cause for and prejudice from the default, or a miscar-
riage of justice due to actual innocence. Lewis v. Sternes, 390
F.3d 1019, 1026 (7th Cir. 2004). Cause is “ordinarily estab-
lished by showing that some type of external impediment
prevented the petitioner from presenting his federal claim to
the state courts.” Id. “Prejudice is established by showing
that the violation of the petitioner’s federal rights worked to
his actual and substantial advantage, infecting his entire trial
with error of constitutional dimensions.” Id. (citation omit-
ted) (internal quotation marks omitted). This Court’s review
of the question of procedural default is de novo. Malone, 538
F.3d at 753.
If the district court did not have the opportunity to con-
sider an argument on the merits, it is forfeited in this Court.
Pole v. Randolph, 570 F.3d 922, 937 (7th Cir. 2009) (“A party
may not raise an issue for the first time on appeal.”).
No. 13-3327 9
A. The Napue Claim & The Ineffective Assistance of
Appellate Counsel Claim Based on the Napue Claim
1. Prosecution’s Failure to Correct Perjured Testimony
Long asserts that he was denied a fair trial because of the
prosecution’s knowing use of perjured testimony. According
to Butler, the perjured testimony claim is procedurally de-
faulted because, although Long’s post-conviction briefs ar-
gued appellate counsel was ineffective for failing to present
this argument, the failure to raise this issue separately from
an ineffective assistance claim is not fair presentment to the
state court, citing Lewis v. Sternes, 390 F.3d 1019 (7th Cir.
2004). Long argues that he presented the Illinois courts with
the operative facts and controlling legal standards necessary
to evaluate this claim and therefore it is not defaulted, citing
Malone v. Walls, 538 F.3d 744 (7th Cir. 2008).
In Lewis, this Court found that petitioner had defaulted
claims raised in his post-conviction petition only as exam-
ples of ineffective assistance of counsel, explaining, “[a] mer-
itorious claim of attorney ineffectiveness might amount to
cause for the failure to present an issue to a state court, but
the fact that the ineffectiveness claim was raised at some
point in state court does not mean that the state court was
given the opportunity to address the underlying issue that
the attorney in question neglected to raise.” 390 F.3d at 1026.
We went on to find that the ineffective assistance of counsel
claims were themselves defaulted because they were not
presented in the correct appellate proceeding. Id. at 1026,
1029–30. Although we found procedural default in Lewis,
that case did not announce a broad rule that a constitutional
claim embedded in an ineffective assistance claim has never
been fairly presented to the state courts.
10 No. 13-3327
On the contrary, in Malone, we reviewed Lewis and an-
other ineffective assistance of counsel/embedded constitu-
tional claim fair presentment challenge, finding for the peti-
tioner. The State argued the ineffective assistance of trial
counsel claim was procedurally defaulted because it had not
been presented as independent from the claim that appellate
counsel was ineffective for failing to raise that claim. 538
F.3d at 753–54. However, we found that “a fair reading of
the record” revealed the state courts had been given a full
opportunity to consider this issue because the petitioner
made it clear that he was seeking redress of his trial counsel’s
errors in failing to present certain witnesses by extensively
detailing the factual basis of trial counsel’s errors, and by cit-
ing the appropriate federal case and standard for a trial
counsel ineffective assistance finding. Id. at 754. We distin-
guished Lewis by explaining there the claims had been de-
faulted “because they had not been presented as independ-
ent claims for relief, but only as examples of counsel’s fail-
ures.” Id. at 755. Malone’s presentation of the ineffective as-
sistance of appellate counsel claim was “as a means for the
court to reach the ineffective assistance of trial counsel, i.e.,
as the cause for failing to raise the ineffective assistance of
trial counsel claim.” Id. Because Malone “makes clear that
he is asking the court to redress the failure of his trial coun-
sel, an issue the court can reach if it determines that his ap-
pellate counsel also was ineffective[,] [h]is presentation,
therefore, does not suffer from the infirmities that we identi-
fied in the petitioner’s submissions in Lewis.” Id.As in Malone, Long has raised an ineffective assistance of
appellate counsel claim as a means for the Court to reach the
No. 13-3327 11
perjured testimony claim. See 538 F.3d at 75.1 Long’s opera-
tive petition is his self-drafted petition because appointed
counsel never amended, therefore it should be given a “gen-
erous interpretation” in this Court. See Lewis, 390 F.3d at
1027. The ineffective assistance of Long’s appellate counsel,
discussed below, gave him “cause” for failing to raise the
Napue claim in the state courts. Although embedded in his
ineffective assistance of counsel claim, Long fairly presented
the factual and legal basis for the perjured testimony claim
to the Illinois state court and, importantly, that court consid-
ered the issue on its merits.
The Court examines four factors to determine whether a
petitioner has fairly presented his federal claim to the state
courts: “1) whether the petitioner relied on federal cases that
engage in a constitutional analysis; 2) whether the petitioner
relied on state cases which apply a constitutional analysis to
similar facts; 3) whether the petitioner framed the claim in
terms so particular as to call to mind a specific constitutional
right; and 4) whether the petitioner alleged a pattern of facts
1 Butler also argues that Malone should be considered an outlier be-
cause there the Illinois Appellate Court considered the ineffective assis-
tance of trial counsel claim only by relaxing its state procedural require-
ments because appellate counsel filed an affidavit admitting his error in
not bringing the claim. However, this reasoning is not reflected in the
Malone decision. And appellate counsel’s mea culpa would not have been
the trigger for that review. Rather, any appellate ineffective assistance
claim would spark a similar analysis of an allegedly waived issue,
whether or not the claiming petitioner had such straightforward evi-
dence of ineffectiveness. See Malone, 538 F.3d at 750 (explaining,
“[g]enerally, defendant’s failure to raise this issue on direct appeal
would result in waiver. However, the waiver rule is relaxed when a de-
fendant alleges that failure to raise an issue on appeal constituted the
ineffective assistance of counsel”).
12 No. 13-3327
that is well within the mainstream of constitutional litiga-
tion.” Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir.
2001). Long cited Napue v. Illinois, 360 U.S. 264, 79 S. Ct.
1173, 3 L. Ed. 2d 1217 (1959), which examines a prosecutor’s
knowing use of perjured testimony as a Fourteenth
Amendment issue. Long used Illinois cases on the same is-
sue. See, e.g., People v. Olinger, 680 N.E.2d 321, 331, 176 Ill. 2d
326, 223 Ill. Dec. 588 (1997) (citing Napue); People v. Jimerson,
652 N.E.2d 278, 284, 166 Ill. 2d 211, 209 Ill. Dec. 738 (1995)
(same). Long explicitly framed this as a due process issue
and his facts fit squarely within the Napue framework.
Furthermore, when considering Long’s case, the appel-
late court engaged in the same kind of analysis as in Malone,
discussing whether the perjured testimony issue was so
prejudicial that the verdict should be overturned. SA.81–84.
In so doing, the court reiterated the circumstances of Irby’s
testimony at both trials, the State’s failure to correct that tes-
timony, and Long’s rebuttal witness. SA.83–84. The court
concluded petitioner did not show a reasonable likelihood
that Irby’s false testimony would have changed the verdict
and declared, “[b]ecause this issue was not meritorious,”
appellate counsel was not ineffective. SA.84. It is clear from
the opinion that the Illinois Appellate Court squarely con-
sidered the factual and legal basis of this claim. We find,
therefore, that Long’s due process claim is not procedurally
defaulted and consider its merits.
A federal court may grant a writ of habeas corpus on an
issue adjudicated on the merits by the state court only if the
adjudication of that claim “resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su-
No. 13-3327 13
preme Court of the United States” or “was based on an un-
reasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). We review the state court’s legal conclusions de
novo. Hall v. Washington, 106 F.3d 742, 748 (7th Cir. 1997). In
Hall, we explained:
The statutory “unreasonableness” standard al-
lows the state court’s conclusion to stand if it is
one of several equally plausible outcomes. On
the other hand, Congress would not have used
the word “unreasonable” if it really meant that
federal courts were to defer in all cases to the
state court’s decision. Some decisions will be at
such tension with governing U.S. Supreme
Court precedents, or so inadequately support-
ed by the record, or so arbitrary, that a writ
must issue.
Id. at 748–49.
The Illinois Appellate Court’s finding that the Irby per-
jury issue was “not meritorious” was an unreasonable appli-
cation of clear Supreme Court precedent holding that “a
conviction obtained by the knowing use of perjured testimo-
ny is fundamentally unfair, and must be set aside if there is
any reasonable likelihood that the false testimony could
have affected the judgment of the jury.” See United States v.
Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976).
“[A] conviction obtained through use of false evidence,
known to be such by representatives of the State, must fall
under the Fourteenth Amendment.” Napue, 360 U.S. at 269.
A constitutional violation occurs if the State allows perjured
testimony to go uncorrected, even if it did not solicit the
14 No. 13-3327
false evidence. Id. Either way, the perjured testimony pre-
vents “a trial that could in any real sense be termed fair.” Id.
at 270 (quoting People v. Savvides, 136 N.E.2d 853, 855, 1
N.Y.2d 554, 154 N.Y.S.2d 885 (N.Y. 1956)).
During Long’s first trial, Irby identified Long as the
shooter, but then testified that she told the State’s Attorneys
and Investigator Walter that she lied about seeing Long
shoot Sherman in the back. During the second trial, the
same State’s Attorney put Irby on the stand, where Irby told
her initial story about seeing Long shoot Sherman. The
State’s Attorney did not ask Irby any questions about her re-
cantation under oath at the first trial. Defense counsel cross-
examined Irby on her prior assertion that her story was a lie,
but Irby denied telling anyone from the State’s Attorney’s
Office that she did not, in fact, see Long shoot the victim.
Again, the State’s Attorney did not correct Irby’s testimony.
Rather, in closing, the prosecutor referenced the defense’s
cross-examination of Irby on her statements to Walter, with-
out mentioning the prior trial testimony. SA.149–50. The
prosecutor then argued that Irby was credible and affirma-
tively relied on Irby’s changing story to bolster her credibil-
ity, arguing: “Maybe [Irby] thought if she told the State’s At-
torney’s Office she wasn’t telling the truth she wouldn’t have
to testify. But when she came in here and was under oath,
she told you what she saw[.]” SA.150.
A government lawyer’s use of perjured evidence is a
threat to the concept of ordered liberty. See Napue, 360 U.S.
at 269. This threat is just as pernicious if the testimony goes
only to the credibility of the witness, because “[t]he jury’s
estimate of the truthfulness and reliability of a given witness
may well be determinative of guilt or innocence, and it is
No. 13-3327 15
upon such subtle factors as the possible interest of the wit-
ness in testifying falsely that a defendant’s life or liberty may
depend.” Id. Illinois separately acknowledges the State’s ob-
ligation in this regard, see, e.g., People v. Steidl, 685 N.E.2d
1335, 1345, 177 Ill. 2d 239, 226 Ill. Dec. 592 (1997) (“If a prose-
cutor knowingly permits false testimony to be used, the de-
fendant is entitled to a new trial.”), and has incorporated this
concept into its rules of professional conduct, see Ill. Su-
preme Ct. Rules of Prof’l Conduct R. 3.8(a) (“The duty of a
public prosecutor is to seek justice, not merely to convict.”).
That defense counsel later did what he could to minimize
the damage of Irby’s perjured testimony does nothing to re-
duce the State’s duty to correct the perjured testimony. Just
because the jury heard Walter explain during the defense
case that Irby’s story had changed does not turn “what was
otherwise a tainted trial into a fair one.” Napue, 360 U.S. at
270; see also United States v. Freeman, 650 F.3d 673, 680–81 (7th
Cir. 2011) (finding reasonable possibility that perjured testi-
mony affected jury decision, even though the government
stipulated to facts contradicting that testimony at a later
point in the case). Additionally, the fact that the jury heard
from another witness who challenged Irby’s recollection
merely set up the kind of credibility comparison that is the
bread and butter of a trial—it does not address the problem
that the jury should never have heard that testimony in the
first place. Even if this evidence was only used by the jury to
assess Irby’s credibility, the State’s failure to correct that evi-
dence was a clear due process violation and the Illinois
court’s decision to the contrary was unreasonable. Napue,
360 U.S. at 270.
16 No. 13-3327
But the import of this evidence goes beyond credibility.
The case against Long was weak. The Illinois Appellate
Court itself noted the evidence against Long was “not over-
whelming.” SA.83. Without any physical evidence linking
Long to the crime, the State had to rely on the testimony of
two eyewitnesses, Irby and Edwards. Edwards’ testimony
about the scene—that she saw Long shoot Sherman, that she
then cradled his head until officers arrived at the scene—was
brought into question by the other witnesses’ stories and was
also different from her testimony at the first trial. The State’s
other two witnesses refused to name Long as the shooter at
the second trial. So that left Irby as the only witness whose
testimony was not directly contradicted or questioned. The
Court considers the trial record as a whole when evaluating
the effect of the perjured testimony on the jury’s verdict. See
Napue, 360 U.S. at 266, 272 (eyewitness’s testimony “extreme-
ly important” to State’s case); Giglio v. United States, 405 U.S.
150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) (perjured tes-
timony was key to prosecution’s case). Irby’s testimony and
credibility were vital to the State’s case.
Furthermore, Irby’s recantation—had the State honestly
presented it to the jury—would have corroborated the other
two eyewitnesses who also changed their initial testimony
naming Long as the shooter. The cumulative weight of Irby’s
perjured testimony creates a reasonable likelihood that, with
so little other evidence, the State’s failure to fairly present her
shifting story influenced the jury’s verdict.
Therefore, even though our review is deferential under
AEDPA, the Illinois Appellate Court’s determination that the
State’s failure to correct the perjured testimony did not influ-
No. 13-3327 17
ence the jury’s decision was an unreasonable application of
Napue. Long is entitled to habeas relief on this claim.
2. Ineffective Assistance of Appellate Counsel
Long also brings a separate ineffective assistance of ap-
pellate counsel claim based on the perjured testimony claim.
Butler does not argue that this claim is procedurally default-
ed—indeed, the appellate court specifically considered and
rejected it. SA.78.
On habeas review, a federal court determines whether
the state court’s application of the ineffective assistance
standard was unreasonable, not whether defense counsel’s
performance fell below Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), standards. See Har-
rington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 178 L. Ed.
2d 624 (2011) (“Under AEDPA, though, it is a necessary
premise that the two questions are different. For purposes of
§ 2254(d)(1), an unreasonable application of federal law is dif-
ferent from an incorrect application of federal law.” (citation
omitted) (internal quotation marks omitted)). The state
court is granted “deference and latitude that are not in oper-
ation when the case involves review under the Strickland
standard itself.” Id. To find a state court’s application of
Strickland unreasonable is a high bar requiring “clear error.”
See Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009). The
unreasonable application of federal law will lie “well outside
the boundaries of permissible differences of opinion” and
will be a clearly established Supreme Court precedent un-
reasonably extended to an unsuitable context or the unrea-
sonable refusal to extend that rule somewhere it should have
applied. Id. at 602.
18 No. 13-3327
Ineffective assistance of counsel claims are mixed ques-
tions of fact and law reviewed de novo, “with a strong pre-
sumption that the attorney performed effectively.” Allen, 555
F.3d at 600. When considering ineffective assistance claims,
a court must determine whether counsel’s performance fell
below an “objective standard of reasonableness” and that
this performance prejudiced the petitioner, i.e. “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ-
ent.” Strickland, 466 U.S. at 688, 694.
The Illinois Appellate Court held that appellate counsel
was not ineffective because the issue of whether Irby’s un-
corrected testimony prejudiced the trial was not meritorious.
For the same reasons discussed supra, the Illinois Appellate
Court’s finding that the prosecution’s actions did not preju-
dice the trial outcome, and therefore that this issue was not
meritorious, was clear error and a misapplication of the Su-
preme Court’s holding in Napue.
Furthermore, appellate counsel’s failure to bring this
claim cannot be considered trial strategy or objectively rea-
sonable performance. See Sanders v. Cotton, 398 F.3d 572, 585
(7th Cir. 2005) (failure to make “an obvious and clearly
stronger argument” was deficient performance (citation
omitted)). Appellate counsel is not required to raise every
non-frivolous issue and her performance “is deficient under
Strickland only if she fails to argue an issue that is both ‘ob-
vious’ and ‘clearly stronger’ than the issues actually raised.”
Makiel v. Butler, 782 F.3d 882, 898 (7th Cir. 2015). The Napue
issue was obvious from the trial record itself. The question
of whether the perjured testimony prejudiced Long’s defense
was also clearly stronger than the claims that were raised.
No. 13-3327 19
Appellate counsel brought only two issues on direct ap-
peal: (1) challenging the “Gone With the Wind” and personal
anecdote references in the prosecution’s closing statement
and (2) ineffective assistance of trial counsel for failing to call
Long’s sister as a witness to corroborate Irby’s testimony that
she did not see anyone cradling Sherman’s head at the scene.
The appellate court rejected both arguments, although over a
strongly worded dissent that described the prosecutor in
closing as having “put her thumb on the scale and tip[ped]
the balance in favor of the State with a wholly improper—
and I submit grossly prejudicial—argument.” SA.69. A
challenge to the prosecutor’s misconduct in allowing the per-
jured testimony would have been a powerful challenge to
the conviction. Considering the dissenting justice’s reaction
to the other comments, it is likely that this claim, especially
when considering the weak case against Long, would have
prompted a finding of prejudice.
The second issue was not strong: the testimony of Long’s
sister would have been used to corroborate Irby’s version of
the scene and to undermine the prosecution’s only eyewit-
ness who did not eventually recant. However, the detail of
Edwards’ testimony that this evidence would attack—the
cradling of the victim’s head—does not directly call into
question her identification of Long as the shooter or signifi-
cantly undercut her credibility. Long’s sister was a family
member and therefore open to allegations of bias. In addi-
tion, trial counsel’s strategy would not have been to bolster
Irby’s testimony: this witness would eventually name Long
as the shooter and her changing story made her an unpre-
dictable witness. This claim was weak at best. It was most
likely that the appellate court would not have found preju-
20 No. 13-3327
dice even if this choice of witnesses could be considered inef-
fective assistance.
Appellate counsel brought one claim on appeal that
prompted a strong dissent, therefore this case does not rise
to the level of Shaw v. Wilson, where counsel argued a frivo-
lous claim rather than one that was “genuinely arguable un-
der the governing law.” See 721 F.3d 908, 916 (7th Cir. 2013).
However, the failure to bring the strong Napue due process
claim on appeal cannot be characterized as strategic, rather it
was deficient performance.
We hold the State’s failure to correct Irby’s denial of her
recantation prejudiced Long and the Illinois Appellate
Court’s finding otherwise is not a reasonable application of
the Strickland prejudice standard. Long is entitled to habeas
relief on his claim of ineffective assistance of appellate coun-
sel based on the failure to challenge the State’s use of per-
jured testimony.
B. Remaining Claims
1. Prosecution’s Use of Quote from Gone With the
Wind & Personal Anecdote From Another Trial
Long also asserts violations of his due process rights un-
der Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L.
Ed. 2d 144 (1983), because, during closing argument, the
prosecution used a reference to Gone With the Wind to com-
ment on the professed ignorance of the crowd of witnesses
to the shooting and a personal anecdote from another mur-
der trial to imply that Long had intimidated witnesses. But-
ler contends these claims are procedurally defaulted because
the Illinois Appellate Court disposed of them on an inde-
pendent and adequate state ground. We agree that because
No. 13-3327 21
these claims are defaulted and Long has not shown excuse
for the default, the Court cannot consider them.
During Long’s direct appeal the Illinois Appellate Court
rejected these two claims as waived because Long had not
objected at trial or included these claims in his post-trial mo-
tions. SA.62. A state court’s rejection of an argument on this
basis is an adequate and independent state law ground that
results in default for federal habeas purposes. See Kaczmarek
v. Rednour, 627 F.3d 586, 592 (7th Cir. 2010). That the appel-
late court then reviewed the waiver for plain error does not
create a merits determination that would cure default. See
Miranda v. Leibach, 394 F.3d 984, 992 (7th Cir. 2005) (“[A]n Il-
linois court does not reach the merits of a claim simply by
reviewing it for plain error.”). These two claims are proce-
durally defaulted.
Long cannot escape this clear default, and so instead
seeks to excuse it by asserting that his trial, appellate, and
then post-conviction counsel were ineffective in bringing
these claims. A state court procedural default may be ex-
cused if the petitioner can demonstrate “cause,” defined as
“some objective factor external to the defense [that] impeded
counsel’s efforts to comply with the State’s procedural rule,”
Coleman v. Thompson, 501 U.S. 722, 753, 111 S. Ct. 2546, 115 L.
Ed. 2d 640 (1991), and “prejudice,” that the errors at trial
“worked to his actual and substantial disadvantage, infect-
ing” the trial with “error of constitutional dimensions,” Lew-
is, 390 F.3d at 1026. However, Long did not raise the claims
of ineffective assistance of trial and appellate counsel
through one complete round of state court review and there-
fore these claims, too, are defaulted. See Gray v. Hardy, 598
F.3d 324, 330 (7th Cir. 2010) (“But to use the independent
22 No. 13-3327
constitutional claims of ineffective assistance of trial and ap-
pellate counsel as cause to excuse a procedural default, [peti-
tioner] was required to raise the claims through one full
round of state court review, or face procedural default of
those claims as well.”).
Long argues, however, that ineffective assistance by post-
conviction counsel is the cause for the default of the ineffec-
tive appellate counsel claim, and the Court should consider
this issue now because post-conviction proceedings were the
first time that particular claim could have been brought, cit-
ing Martinez v. Ryan, 132 S. Ct. 1309, 182 L. Ed. 2d 272 (2012)
and Trevino v. Thaler, 133 S. Ct. 1911, 185 L. Ed. 2d 1044(2013). As we recently explained, “[i]n Martinez and Trevino,
the Supreme Court held that procedural default caused by
ineffective postconviction counsel may be excused if state
law, either expressly or in practice, confines claims of trial
counsel’s ineffectiveness exclusively to collateral review.”
Nash v. Hepp, 740 F.3d 1075, 1079 (7th Cir. 2014) (noting Wis-
consin law required defendants to bring ineffective assis-
tance of trial counsel claims on direct review and finding de-
fault). This is because “the collateral proceeding is in many
ways the equivalent of a prisoner’s direct appeal as to the
ineffective assistance claim.” Hodges v. Colson, 727 F.3d 517,
531 (6th Cir. 2013) (citing Martinez, 132 S. Ct. at 1317) (inter-
nal quotation marks omitted).
Despite the narrow holding of Martinez and Trevino, Long
argues that this Court should extend these cases beyond
those instances where state procedural rules dictate ineffec-
tive assistance of trial counsel claims be brought on collateral
review to cover post-conviction counsel’s failure to bring in-
effective assistance of appellate counsel claims. The majority
No. 13-3327 23
of other circuits that have examined this question have re-
fused to expand this narrow exception to the general prohi-
bition against excusing procedural default via post-
conviction ineffective assistance claims. See Dansby v. Hobbs,
766 F.3d 809, 833 (8th Cir. 2014) (joining the Fifth, Sixth, and
Tenth Circuits in refusing to extend Martinez to appellate in-
effective assistance claims); Hodges, 727 F.3d at 531. Long ar-
gues that we should instead follow the Ninth Circuit in find-
ing the reasoning in Martinez applies equally to a claim of
ineffective assistance of appellate counsel. See Ha Van Ngu-
yen v. Curry, 736 F.3d 1287, 1295–96 (9th Cir. 2013). However,
this Court has recently interpreted Martinez and Trevino as
holding “that procedural default caused by ineffective post-
conviction counsel may be excused if state law, either ex-
pressly or in practice, confines claims of trial counsel’s inef-
fectiveness exclusively to collateral review,” Nash, 740 F.3d at
1079, and we do not see any reason to depart from that un-
derstanding, or the majority of circuits, here. The default of
these claims is not excused under Martinez.
2. Prosecution’s Reference to a Letter Not in Evidence
& Improper Shifting of the Burden of Proof
Long further argues that the prosecutor referenced the
contents of a letter that was not in evidence to bolster the
credibility of a key witness. In rebuttal closing, the prosecu-
tion explained that Irby wrote a letter to a friend in which
she stated that she saw a man shoot another man four times
in the back. SA.170–71. Neither the letter nor its contents
had been admitted into evidence, so the judge sua sponte
made and sustained an objection to the prosecution’s im-
proper reference to facts not in evidence. SA.171. Long ar-
gues the prosecutor’s statements had a clear effect on the ju-
24 No. 13-3327
ry, because the jurors sent a note to the trial judge asking
why the letter was not entered into evidence but could be
referenced. SA.108. Long also asserts that the State improp-
erly shifted the burden of proof to him by repeatedly refer-
encing the lack of evidence of another shooter.
Butler contends these claims are forfeited because neither
was presented to the district court as either a claim of prose-
cutorial error or ineffective assistance of trial or appellate
counsel. See Pole, 570 F.3d at 937 (“[W]here a party raises a
specific argument for the first time on appeal, it is waived
even though the ‘general issue’ was before the district
court[.]” (citing Domka v. Portage County, Wis., 523 F.3d 776,
783 (7th Cir. 2008))). However, a petition prepared without
the assistance of counsel is owed a “generous interpreta-
tion,” see Lewis, 390 F.3d at 1027, and these claims—although
not listed separately—were presented as part of the prosecu-
torial misconduct count. See SA.10, 15–16. Therefore, even if
the district court did not specifically address these claims in
its opinion, Long did not forfeit these claims.
Butler further argues that these claims are procedurally
defaulted because Long failed to present them through one
complete round of state court review. Butler maintains Long
asserted these claims as examples of a state law-based post-
conviction counsel ineffective assistance claim, which did
not fairly present what is now a federal due process claim to
the Illinois state courts.
We agree and find that these claims are procedurally de-
faulted. During his state post-conviction appeal, Long in-
cluded these two alleged prosecutorial missteps in his claim
for failure of post-conviction counsel to render reasonable
assistance. See Doc. 13-7, at Count II. Long based his claim
No. 13-3327 25
on Illinois law, which provides that appointed post-
conviction counsel must give a reasonable level of assistance
to the petitioner. See People v. Owens, 564 N.E.2d 1184, 1189,
139 Ill. 2d 351, 151 Ill. Dec. 522 (1990) (explaining, “[t]he
right to the assistance of counsel at trial is derived from the
sixth amendment of the United States Constitution, whereas
the assistance of counsel in post-conviction proceedings is a
matter of legislative grace and favor which may be altered
by the legislature at will” (citation omitted) (internal quota-
tion marks omitted)). This claim was presented only as a
state claim—Long cited no federal law and the Illinois Ap-
pellate Court treated it only as a state law claim. See SA.85–
86. The Illinois courts did not have a fair opportunity to
consider a federal basis for these two claims. See Malone, 538
F.3d at 753 (fair presentment of a claim requires that “both
the operative facts and the controlling legal principles must
be submitted to the state court” (citation omitted)); Wilson v.
Briley, 243 F.3d 325, 328 (7th Cir. 2001) (claim not fairly pre-
sented when petitioner failed to cite any federal cases). Long
makes a general argument that his trial and appellate coun-
sel’s ineffectiveness should excuse this default. However, as
discussed supra, the Court declines to extend Martinez and
Trevino beyond their narrow holdings focused on the first
opportunity to challenge trial counsel’s ineffectiveness on
collateral review. These claims are procedurally defaulted
and we will not consider them.
3. Ineffective Assistance of Counsel
Long asserts an ineffective assistance of trial counsel
claim for counsel’s failure to object to the prosecution’s im-
proper statements during closing argument and an ineffec-
tive assistance of appellate counsel claim for failing to bring
26 No. 13-3327
this claim against his trial counsel. Butler contends these
claims are procedurally defaulted because Long did not pre-
sent them through one complete round of state review.
In his post-conviction appeal, Long included a claim that
post-conviction counsel was ineffective for failing to bring an
appellate counsel ineffective assistance claim. Doc. 13-7 at
74–89. Although it may be broadly argued that this claim
subsumes within it the facts of an ineffective assistance of
trial counsel claim, as discussed above, the post-conviction
ineffectiveness claim was based solely on Illinois law, there-
fore it did not fairly present both the factual and legal basis
of this claim to the state court. See Malone, 538 F.3d at 753.
The appellate counsel ineffectiveness claim is closer to the
surface, but again, this claim was never presented as a feder-
al claim, and the Illinois Appellate Court did not have the
opportunity to consider it, therefore there is no exhaustion
and the claim is defaulted. And although Long argues gen-
erally that this default should be excused by those same
counsels’ ineffectiveness, the trial counsel issue should have
been brought on direct appeal, see Nash, 740 F.3d at 1079;
Murphy v. Atchison, No. 12 C 3106, 2013 WL 4495652, at *22
(N.D. Ill. Aug. 19, 2013) (“In Illinois, collateral proceedings
are not the first opportunity to raise an ineffective assistance
of counsel claim. Thus, numerous courts in this district have
held that Martinez is inapplicable to federal habeas corpus
petitions filed by Illinois prisoners.” (citations omitted)), and
the Court declines to extend Martinez/Trevino to cover the
appellate counsel ineffectiveness claim.
Long’s ineffective assistance of counsel claims based on
due process violations by the prosecution during closing ar-
No. 13-3327 27
gument are procedurally defaulted and will not be consid-
ered.
III. CONCLUSION
For the foregoing reasons, the state courts unreasonably
applied Supreme Court precedent in finding that the State’s
knowing use of perjured testimony did not prejudice Long
at trial and that appellate counsel was not ineffective for fail-
ing to challenge the State’s use of perjured testimony. There-
fore, we REVERSE the district court’s judgment on those is-
sues and REMAND with instructions to grant the writ. The
district court’s writ should order that Long is released unless
Illinois gives notice of its intent to retry Long within a rea-
sonable time fixed by the district court.