IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
GIOVANNI GARCIA ) ) Petitioner, ) No. 25 C 8605 ) v. ) Judge Robert W. Gettleman ) JEREMIAH BROWN, Warden, ) Lawrence Correctional Center, ) ) Respondent. )
MEMORANDUM OPINION AND ORDER Giovanni Garcia (“petitioner”), an Illinois prisoner, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent Jeremiah Brown, warden of the Lawrence Correctional Center where petitioner is held, answered the petition. For the reasons below, the petition (Docs. 1, 3) is denied, and a certificate of appealability shall issue as to petitioner’s claim that he was denied the right to a fair trial under the Fifth and Fourteenth Amendments based on the trial judge’s disparaging comments about the defense counsel in the presence of the jury. BACKGROUND1 On April 8, 2016, Lauren Membreno was shot and killed while sitting in the driver’s seat of her Volkswagen Beetle. Edwin Montano, her boyfriend, was sitting beside her in the passenger seat. The car was parked outside of Montano’s home on Karlov Avenue. Montano, the state’s primary witness, heard screeching breaks. When he turned toward the sound, he saw
1 When addressing a § 2254 petition, federal courts take “facts from the Illinois Appellate Court’s opinions because they are presumptively correct on habeas review.” Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1 (7th Cir. 2020) (citing 28 U.S.C. 2254(e)(1)). The facts below come from the Appellate Court’s opinion affirming petitioner’s conviction. See People v. Garcia, 2021 IL App (1st) 192576-U. petitioner pointing a gun at him from the driver’s seat of a silver Honda. Montano ducked down and told Membreno to do the same. He heard a single gunshot and shattering glass. The Honda drove away down Karlov Avenue. Membreno had been shot in the forehead.
Montano was able to identify petitioner as the shooter because he knew him. Montano testified that he had purchased marijuana from petitioner twice but stopped doing so after petitioner “shorted” him. Sometime after those purchases, there was an incident where petitioner and two other men followed Montano out of a corner store and beat him up. Montano also briefly encountered petitioner on another occasion, when purchasing Xanax pills on behalf of Membreno.
On the day of the shooting, Membreno and Montano stopped at a grocery store approximately two blocks from Montano’s house. Membreno went into the store while Montano waited in the Beetle. While waiting in the car, Montano saw petitioner and the two other men who had previously beat him up exit the store. It appears from the record that Montano exited the car and initiated a verbal confrontation with the three men. Shortly after the confrontation,
Montano got in the driver’s seat of the Beetle and picked Membreno up in front of the store. After picking up Membreno, Montano pulled up to a parked silver car that the three men (petitioner and the two other men) had entered. Montano hovered as the silver car pulled out of its parking space. Montano then tailed the silver car as it exited the parking lot. It appears that the shooting occurred soon after this encounter.
Petitioner was arrested on April 21, 2026. At trial, petitioner was represented by three Assistant Public Defenders (APDs), including first-chair APD Marijane Placek. Throughout the course of the trial, the trial judge made various disparaging and hostile comments to APD Placek in the presence of the jury. At the conclusion of the jury trial, petitioner was convicted of the first-degree murder of Membreno and the attempted murder of Montano.
DISCUSSION Petitioner’s habeas petition raises two claims for relief: 1. Violation of the right to effective assistance of counsel under the Sixth Amendment because his trial counsel failed to reasonably investigate exculpatory evidence, including identifying and interviewing two witnesses who would have testified to petitioner’s
contemporaneous account of the events. 2. Violation of the right to a fair trial under the Fifth and Fourteenth Amendments because of the trial judge’s comments disparaging APD Placek in the presence of the jury. A. Ineffective Assistance of Counsel
Before addressing the substance of the claim, there is a preliminary procedural question: whether petitioner forfeited his ineffective assistance claim by failing to raise it in his preliminary hearing under People v. Krankel, 464 N.E.2d 1045 (Ill. 1984).2 Because the court can resolve the claim on the merits against petitioner, it refrains from analyzing this issue.3 See Brown v. Watters, 599 F.3d 602, 610 n.10 (7th Cir. 2010) (approving of cases holding that courts can bypass procedural issues when claims can be resolved against petitioners on the merits).
2 In Illinois, when a defendant raises a pro se ineffective assistance of counsel claim, the trial court holds a preliminary hearing to inquire into the factual basis of the claim before deciding whether to appoint new counsel. Krankel, 464 N.E.2d at 1049. 3 While noting the forfeiture issue, respondents also offered a response on the merits. 1. The parties’ arguments
Petitioner claims that he was denied effective assistance from his trial counsel in violation of the Sixth Amendment. The core of this claim is that petitioner’s trial counsel did not reasonably investigate the defense that David Lozano, not petitioner, killed Membreno. According to petitioner, he told trial counsel that he was present at the scene of the shooting but did not fire the gun. Instead, Lozano, who was in the car with petitioner, was the one who pulled the trigger (the “Lozano defense”). Petitioner argues that had counsel reasonably investigated the Lozano defense, they would have discovered Jason Steinberg and Mariela Lopez, two witnesses to whom petitioner made statements on the eve of the shooting identifying Lozano as
the shooter. Petitioner argues that the Illinois Appellate Court (“Appellate Court”) made three errors in rejecting his ineffective-assistance claim. First, petitioner argues that the Appellate Court’s
rejection of his ineffective-assistance claim was an unreasonable application of federal law because the Appellate Court incorrectly determined that counsel’s failure to investigate the Lozano defense was within the range of “sound trial strategy” permitted under Strickland v. Washington, 466 U.S. 668, 687-89 (1984). Second, petitioner argues that the Appellate Court’s rejection of his ineffective-assistance claim involved an unreasonable determination of the facts surrounding the Lozano defense. Specifically, petitioner argues that the Appellate Court’s finding that the “petition and affidavit make only nonspecific, conclusory assertions to support his claim that counsels’ conduct fell below an objective standard of reasonableness” was unreasonable because petitioner clearly articulated the facts supporting his claim for ineffective assistance of counsel. People v. Garcia, 2024 IL App (1st) 230325-U at ¶ 45. Third, petitioner argues that the Appellate Court incorrectly determined that he was not prejudiced by counsel’s failure to investigate the Lozano defense.
Respondent argues that petitioner fails to overcome the strict requirements of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254 (“AEDPA”). Respondent correctly states that to overcome the AEDPA’s bar on relitigating claims adjudicated on the merits in state court, a petitioner must show that the state court’s decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;” or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Respondent argues that the Appellate Court did not unreasonably apply federal law
because it cited and applied the governing Strickland standard. Respondent highlights that petitioner’s claimed defense has been inconsistent: petitioner has claimed that he was in the car but Lozano was the shooter, petitioner has claimed that he was with Lozano at Lozano’s house at the time of the shooting, and petitioner has also claimed that he was with Lozano on the street where the shooting occurred, but arrived after it had occurred.
Respondent also argues that the reasonableness of trial counsel’s strategy must be evaluated considering the shifting facts represented to them by petitioner. Respondent argues that petitioner never told his trial counsel that Lozano was the shooter, the defense that petitioner now claims that trial counsel was ineffective for not investigating. In addition, respondent points out that in response to being told by petitioner that he was with “David [Lozano]” and “Adrian” on the night of the shooting (without providing surnames), petitioner’s trial counsel made many attempts to locate them. Respondent contends that, taking into account the information made available, trial counsel’s efforts were adequate. Thus, the Appellate Court’s determination—that petitioner failed to make a substantial showing that counsel’s performance was objectively unreasonable under prevailing professional norms—was not unreasonable.
Respondent also argues that the Appellate Court’s determination on the second prong of Strickland, that petitioner failed to show that the outcome of his trial would have been different if trial counsel investigated Steinberg and Lopez, was reasonable. According to respondent, the Appellate Court was reasonable in deciding that there was no prejudice because Steinberg and
Lopez’s testimony would only have been admissible if petitioner testified in his own defense to rebut an allegation that his testimony was recently fabricated. On the Appellate Court’s factual determination that trial counsel adequately endeavored
to prepare petitioner’s defense, respondent argues that plaintiff failed to carry his burden to rebut the factual determination with clear and convincing evidence.
2. Analysis The AEDPA requires this court to afford strong deference to the Appellate Court’s adjudication on the merits. See Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997) (describing
“§ 2254(d)’s new, highly deferential standard for evaluating state-court rulings”). As the Supreme Court has explained, the effect of § 2254(d) is to preserve “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.” Harrington v. Richter, 562 U.S. 86, 102 (2011) (internal quotations omitted). This court is not charged with conducting a de novo review of the Appellate Court’s decision; instead, it is charged with determining whether any fair-minded jurist could agree that the Appellate Court’s decision was a reasonable application of federal law. Cf Panetti v. Quarterman, 551 U.S. 930, 932 (2007) (explaining that “[if] the state court’s adjudication is dependent on an antecedent unreasonable application of federal law, that requirement is satisfied, and the federal court must then resolve the claim without the deference
AEDPA otherwise requires”). The body of federal law that the Appellate Court applied includes the Supreme Court’s holding that “a court must indulge a strong presumption that counsel’s conduct…might be
considered sound trial strategy.” Strickland, 466 U.S. at 689. Putting this standard together with the AEDPA results in deference layered upon deference. See Harrington, 562 U.S. at 105 (explaining that “[t]he standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so” (internal quotation and citations omitted)). The Appellate Court was required to indulge the strong presumption that counsel’s conduct was sound trial strategy, and this court must review the Appellate Court’s indulgence of that strong presumption with the deference required by the AEDPA.
Under the highly deferential standard required by the circumstances, the court finds that the Appellate Court’s denial of petitioner’s ineffective-assistance claim did not involve an unreasonable application of clearly established federal law, thus barring this court from granting the writ of habeas corpus on behalf of petitioner. See § 2254(d)(1). The Appellate Court reasonably applied the Strickland standard that governs claims of ineffective assistance of
counsel under federal law. See People v. Garcia, 2024 IL App (1st) 230325-U at ¶ 44–45. Under the first prong of the Strickland standard, “defendant must show that counsel's representation fell below an objective standard of reasonableness.” 466 U.S. at 687–88. The Appellate Court applied this standard and concluded that petitioner failed to show that trial counsel’s decision not to pursue the Lozano defense was not sound trial strategy.
The fact record that the Appellate Court considered included petitioner’s dramatically shifting account of the defense that he now argues that his counsel was ineffective for not pursuing. Among other facts, the Appellate Court noted that petitioner “explicitly rejected counsels’ contentions that he had told them he was at the scene of the shooting but was not the shooter.” People v. Garcia, 2024 IL App (1st) 230325-U, at ¶ 30.4 The contention that petitioner
then rejected is the same defense that petitioner now claims his counsel was ineffective for not investigating. In evaluating the first prong of the Strickland standard, “[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.” 466 U.S. at 691. The fact record that the Appellate Court reviewed showed that petitioner supplied extremely inconsistent information to counsel. Considering this inconsistency, the Appellate Court was not unreasonable in concluding that petitioner failed to show that counsel’s representation fell below an objective standard of reasonableness.
While the Appellate Court’s determination on the first prong of Strickland was sufficient to reach its decision to deny petitioner’s ineffective-assistance claim, the Appellate Court also
analyzed the second prong of Strickland. This court finds that the Appellate Court’s application
4 The court recognizes that these factual findings appear in the section of the Appellate Court’s opinion discussing the forfeiture issue that this court does not reach. Nevertheless, because these factual findings were relevant to the Appellate Court’s adjudication of petitioner’s ineffective-assistance claim, the court considers them. of the second prong of Strickland was also reasonable.
The second prong of the Strickland standard requires a defendant to show that the “deficiencies in counsel’s performance [were] prejudicial.” 466 U.S. at 692. The Appellate Court was not unreasonable in determining that petitioner’s theory of how the “missing” testimony would change the outcome of his trial was too speculative to show prejudice. First, Steinberg and Lopez’s accounts would have had to match what petitioner claims (petitioner submitted an affidavit executed by Steinberg but failed to obtain one for Lopez). Second,
petitioner would have had to testify. Third, for Steinberg and Lopez’s testimony to be admissible, the prosecution would have had to charge that petitioner recently fabricated his account. See People v. Gonzalez, 884 N.E.2d 228, 241 (Ill. App. 1st 2008) (explaining that “although a prior consistent statement is normally inadmissible hearsay, such a statement is admissible when it rebuts a charge of recent fabrication and when it was made prior to the alleged fabrication”). Finally, the jury would have to have reached a different verdict. The Appellate Court properly evaluated this chain of speculation under the “reasonable probability” standard set out in Strickland. 466 U.S. at 694. This court finds that the Appellate Court’s determination that petitioner’s argument for prejudice was “too conclusory and speculative” was a reasonable application of the Strickland standard. People v. Garcia, 2024 IL App (1st), at ¶ 47.
The final issue is petitioner’s claim under § 2254(d)(2) that the Appellate Court’s rejection of his ineffective-assistance claim “involved an unreasonable determination of the
facts.” A federal habeas court “will not readily part ways with a state court’s factual findings” and must “give great deference to credibility determinations in particular.” Gambaiani v. Greene, 137 F.4th 627, 640 (7th Cir. 2025). Petitioner’s argument focuses on a snippet of the Appellate Court’s opinion, its statement that “petition and affidavit make only nonspecific, conclusory assertions to support his claim that counsels’ conduct fell below an objective standard of reasonableness.” People v. Garcia, at ¶ 45. Petitioner claims that this determination was unreasonable because petitioner did in fact make allegations that he thinks were not “nonspecific,
conclusory assertions.” The court rejects petitioner’s § 2254(d)(2) claim. For a § 2254(d)(2) claim to succeed, petitioner must show that the state-court adjudication of his claim “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2) (emphasis added). Even if petitioner were correct that the Appellate Court’s determination that his “petition and affidavit make only nonspecific, conclusory assertions” was unreasonable, petitioner failed to show that the Appellate Court’s decision was “based” on this factual determination.5 See Hebert v. Cain, 121 F. App’x 43, 46 (5th Cir. 2005) (explaining that “the petitioner must show that the mistaken factual determination constituted the basis for the state court’s decision at issue”) (citing Wiggins v. Smith, 539 U.S. 510, 551-52 (2003) (Scalia, J., dissenting)). As discussed above, the Appellate Court reasonably determined that counsel’s alleged deficient performance did not prejudice petitioner. Thus, even if the Appellate Court flipped its finding on the deficient
performance prong, the outcome would remain the same. The Appellate Court would be required to deny petitioner’s ineffective-assistance claim, because a successful ineffective- assistance claim requires both a showing of deficient performance and prejudice. Consequently,
5 This court also reads the Appellate Court’s determination that petitioner’s counsel did not perform deficiently to rely on a broader factual basis than this statement. Among other things, the Appellate Court found that petitioner’s changing defenses were “so inapposite to [one another] as to make them mutually exclusive,” and that petitioner “offers no explanation for this inconsistency in his postconviction petition.” this court finds that petitioner has not cleared the bar posed by § 2254(d)(2).
B. Right to fair trial (Fifth and Fourteenth Amendments) 1. The parties’ arguments Petitioner argues that he was denied the right to a fair trial under the Fifth and Fourteenth Amendments because the trial judge repeatedly made in-court comments that disparaged APD Placek, his lead trial counsel, in the presence of the jury. While the trial judge’s comments are more thoroughly catalogued in the Appellate Court’s opinion, see People v. Garcia, 2021 IL App (1st) 192576-U at ¶¶ 48-65, the court reproduces two exchanges below to illustrate the issue:
APD PLACEK: [upon concluding cross examination] I’m sorry for your loss.
THE COURT: No more comments like that in the future, trying to engender any sympathy from the jury for yourself. ______________________________________________
THE COURT: Let me finish, please. Ask him a question that’s relevant to what he’s here for.
APD PLACEK: I believe I was, Judge. THE COURT: Well, I don’t. I don’t think you were even close. Everybody is thrilled to know about your knowledge of Area Central’s room. The detective is an independent administrator of a lineup procedure. That’s what he testified to, not about how long somebody else might have talked to him. Please stick to the point of the case, I beg of you.
In addition to comments made in front of the jury, the trial judge also made comments during motion hearings that suggest he harbored a bias against APD Placek. In denying petitioner’s motion for a mistrial based on the above “I’m sorry for your loss” exchange, the trial judge, among other things, commented:
“What are you supposed to ask witnesses? Questions. You made a statement. You made a statement designed to engender some sort of emotional response from the jury about what a wonderful person you are and how sorry you feel for the mother of a dead child. You are not allowed to do that. The State can’t do that. They can’t wrap their arms around the deceased family any more than you can try to. So that’s the reason. You don’t make statements in this courtroom.”
Petitioner contends that the Appellate Court’s determination that the trial court’s comments did not result in prejudice to the defendant was based both upon an unreasonable application of federal law and an unreasonable determination of the facts. According to petitioner, that conclusion was an unreasonable application of federal law because the Appellate Court failed to properly evaluate the impact of the judge’s comments in the context of the proceeding.
Broadly, petitioner makes two arguments that the Appellate Court’s decision was based on an unreasonable determination of the facts. First, petitioner takes issue with the Appellate Court’s characterization of the entire record as a “handful of problematic comments” that were addressed by curative instructions that “served to cure any prejudicial effect” of the comments. Second, petitioner challenges the Appellate Court’s finding that petitioner received a fair trial
because his counsel did not cross-examine Mr. Montano, the state’s main witness, and therefore any effect of the trial judge’s prejudice towards APD Placek did not affect the core evidence in the case. Respondent argues that there is no clearly established Supreme Court precedent that governs the propriety of a trial court’s comments to defense counsel, thus petitioner cannot show that he has met the requirements of § 2254(d)(1). Respondent underscores that petitioner did not cite Supreme Court precedent holding that such comments can rise to the level of a due process
violation. On petitioner’s unreasonable determination of fact contention, respondent argues that petitioner fails to raise a factual challenge. Respondent argues that the Appellate Court’s determination that petitioner was not prejudiced because the trial court’s comments did not affect the jury’s decision to credit Montano (because APD Placek chose not to cross-examine him) is
really an argument that the Appellate Court unreasonably applied the law to the facts of his case. More generally, respondent argues that APD Placek’s advocacy was not diminished by the trial court’s comments. 2. Analysis Petitioner fashions his claim as arising under § 2254(d)(1) and § 2254(d)(2)—both that
the Appellate Court unreasonably applied federal law and unreasonably determined the facts— but the core of petitioner’s claim is that the Appellate Court’s decision was based on an unreasonable application of federal law. Petitioner does not argue that the Appellate Court’s decision was based on incorrect, discrete factual findings. Put more simply, petitioner does not dispute the Appellate Court’s determination of what comments were made to whom and when. Instead, the heart of petitioner’s claim is that the Appellate Court’s decision was unreasonable because “the record makes clear that the trial court’s “castigation of [petitioner’s] counsel so discredited [her] in the eyes of the jury that [s]he could not have remained an effective spokesman for [her] client.” While the Appellate Court’s determination that the comments did not deprive petitioner of a fair trial involved facts in the record, the ultimate question at issue is like those that the Supreme Court has classified as legal questions properly evaluated under § 2254(d)(1). See Thompson v. Keohane, 516 U.S. 99, 111 (1995) (collecting cases and distinguishing factual
determinations that “ depend[] heavily on the trial court’s appraisal of witness credibility and demeanor” from “issues of law for § 2254(d) purposes: the voluntariness of a confession; the effectiveness of counsel’s assistance; and the potential conflict of interest arising out of an attorney’s representation of multiple defendants” (internal citations omitted)).6 Thus, the court’s review of the Appellate Court’s decision is governed by § 2254(d)(1).
The court finds that petitioner’s claim is barred by § 2254(d)(1). That section prohibits federal review of claims adjudicated on the merits in state court unless that decision (1) “was contrary to…clearly established Federal law”; or (2) “involved an unreasonable application of …clearly established Federal law.” § 2254 (d)(1). As discussed above, § 2254(d) generally creates a “highly deferential standard for evaluating state-court rulings.” Lindh, 521 U.S. at 333 n.7. Under § 2254(d)(1) specifically, federal review of a state court determination on the merits is prohibited unless “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” Harrington, 562 U.S. 86, 102 (internal quotations omitted). The court cannot conclude that there is “no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents,” because, as
explained below, the Appellate Court reasonably applied Illinois law that is equally or more
6 Although Thompson was decided before the passage of the AEDPA, the court understands the AEDPA to have changed the substantive standard of review applied to legal and factual questions under §2254(d). The court does not understand the AEDPA to have altered the taxonomy of legal and factual questions under § 2254(d). Thus the Supreme Court’s analysis of the dividing line between legal and factual questions under § 2254(d) in Thompson is still instructive. protective of petitioner’s claim than the relevant clearly established federal law.
As a preliminary matter, the Appellate Court did not unreasonably apply clearly established federal law, because the Appellate Court’s decision engaged in almost no analysis of federal law. Instead, the Appellate Court reached its decision by analyzing Illinois law on the right to a fair trial. The Appellate Court did so because petitioner’s argument on direct appeal relied almost exclusively on Illinois law.7 Consequently, petitioner cannot point to how the Appellate Court unreasonably applied federal law, because there was virtually no federal law at issue. Because the Appellate Court did not unreasonably apply clearly established federal law, the remaining question is whether the Appellate Court’s decision was contrary to clearly
established federal law. Petitioner has failed to identify clearly established federal law that is contrary to the Appellate Court’s decision. Petitioner cites In re Murchison, 349 U.S. 133, 136 (1955) for the general, and obviously correct, proposition that “[a] fair trial in a fair tribunal is a basic requirement of due process.” For the first time in his reply, petitioner raised Quercia v. United
States, 289 U.S. 466, 470 (1933), which states that “[t]he influence of the trial judge on the jury is necessarily and properly of great weight and his lightest word or intimation is received with deference, and may prove controlling.”(Internal quotation omitted). In Quercia, the Supreme Court reversed the petitioner’s conviction where the trial judge commented directly to the jury on the petitioner’s testimony, stating that “I think that every single word that man said, except when
7 While this set of circumstances appears to invite problems under the doctrines of exhaustion and procedural default, the court finds that petitioner’s consistent labelling of his claim on direct appeal as arising under the federal constitution is enough to (narrowly) conclude that petitioner satisfied his requirement to “fairly present to each appropriate state court his constitutional claims before seeking relief in federal court.” Perruquet v. Briley, 390 F.3d 505, 513, 519–20 (7th Cir. 2004). he agreed with the Government’s testimony, was a lie.” 289 U.S. at 468, 471-72. The judge’s commentary in Quercia was far more extreme than the trial judge’s commentary in this case.
Based on the court’s review, these are the only Supreme Court cases that petitioner cites in support of his claim that the Appellate Court’s decision was contrary to clearly established federal law. See 28 U.S.C. § 2254(d)(1) (setting the statutory standard in reference to “clearly established Federal law, as determined by the Supreme Court of the United States” (emphasis added)).
The Illinois law that the Appellate Court did apply was not contrary to the clearly established federal law that petitioner identified. The body of Illinois law that the Appellate Court considered is equally or more protective of the right at issue than the federal law that petitioner relies upon. The Appellate Court analyzed several Illinois precedents that specifically address how judicial comments before a jury can implicate the right to a fair trial. People v. Garcia, 2021 Il App (1st) 192576-U, at ¶ 51. For example, the Appellate Court considered that “In a criminal trial, a hostile attitude toward an accused, or his witnesses, is very apt to influence
the jury in arriving at its verdict.” People v. Wiggins, 2015 IL App (1st) 133033, ¶ 46 (quoting People v. Marino, 111 N.E.2d 534, 537 (Ill. 1953)). The Appellate Court also considered that “[j]udicial comments can amount to reversible error if the defendant can establish that such comments were a material factor in the conviction or were such that an effect on the jury’s verdict was the probable result.” People v. Burrows, 592 N.E.2d 997, 1021 (Ill. 1992).
The Appellate Court reasonably applied the Illinois law that is equally or more protective of the rights asserted in petitioner’s claim than the relevant “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Thus, the Appellate Court’s decision was not contrary to clearly established federal law. The court concurs with the Appellate Court’s finding that “[a]fter examining all of the complained-of comments, we agree with [petitioner] that the trial court made a number of improper comments in front of the jury.” People v. Garcia, 2021 Il App (1st) 192576-U, at ¶ 65. Despite the
impropriety of those comments, a fairminded jurist could agree with the Appellate Court’s conclusion that “after examining the entirety of the trial court’s comments in the context of the proceeding as a whole, we cannot find that the comments resulted in prejudice to defendant, depriving him of a fair trial.” Id., at ¶66. Petitioner’s claim was reasonably considered by the Appellate Court under a more
exacting standard than clearly established federal law demands. Thus, petitioner has failed to show that the Appellate Court’s consideration of his claim on the merits “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” § 2254 (d)(1). Consequently, the court cannot grant a writ of habeas corpus on petitioner’s claim that he was denied a right to a fair trial.
3. Certificate of Appealability When a district court enters a final order adverse to the petitioner, it must issue or deny a certificate of appealability (“COA”). The issuance of a COA is governed by 28 U.S.C. § 2253(c)(2). That section states that a “certificate of appealability may issue…only if the applicant has made a substantial showing of the denial of a constitutional right.” Because the
court has rejected both claims under the AEDPA, the court must look at its “application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The court will not issue a COA for petitioner’s ineffective-assistance claim. The court found that, through the highly deferential lens required when a federal habeas court reviews a Strickland claim under §2254(d), petitioner’s habeas claim failed on both prongs of Strickland. In addition, the court finds that petitioner has not made a substantial showing of the denial of a
constitutional right. Even stripped of the deference afforded to the decisions of courts below, petitioner’s ineffective-assistance claim is weak.8 As discussed in more detail above, because petitioner supplied his trial counsel with an extremely inconsistent account of the Lozano defense, it appears far-fetched that his trial counsel’s performance was objectively deficient. Petitioner’s theory of how trial counsel’s deficient performance prejudiced him is also quite speculative. Because the court seriously doubts the viability of both elements of petitioner’s Strickland claim, the court does not believe that jurists of reason could find the court’s ultimate assessment of the constitutional claims debatable or wrong. Consequently, the court declines to issue a COA on petitioner’s ineffective assistance of counsel claim.
The court will issue a COA for petitioner’s claim that he was denied the right to a fair trial under the Fifth and Fourteenth Amendments. Based on the extensive record of inappropriate comments that the trial judge made before the jury, petitioner has made a substantial showing that he was denied the right to a fair trial under the Unites States Constitution. Because of the requirements of the AEDPA, this court’s analysis of petitioner’s claim was limited to analyzing his claim through the lens of “clearly established federal
law…as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Due to the lack of Supreme Court precedent directly on point, the court concluded that petitioner
8 The court emphasizes that it has not conducted a full merits analysis, because “[t]he COA inquiry…is not coextensive with a merits analysis.” Buck, 580 U.S. at 115. did not make the requisite showing under the AEDPA. Nevertheless, this court finds that jurists of reason, referring to case law developed in the Circuit Courts of Appeal, could find this court’s “assessment of the constitutional claims debatable or wrong,” especially because the Appellate Court did not engage with federal law in rendering its decision. Muiller-El, 537 USS. at 338 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the court heeds the Supreme Court’s statement that “‘a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. Consequently, the court will issue a COA on petitioner’s fair trial claim under the Fifth and Fourteenth Amendments.
CONCLUSION
For the above reasons, petitioner’s habeas petition (Docs. 1, 3) is denied. The court issues a certificate of appealability as to petitioner’s claim that he was denied the right to a fair trial under the Fifth and Fourteenth Amendments based on the trial judge’s disparaging comments about the defense counsel in the presence of the jury. No certificate of appealability shall issue as to his claim for ineffective assistance of counsel. The clerk is directed to enter judgment in favor of respondent and against petitioner. ENTER:
United States District Judge DATE: August 31, 2026