United States ex rel. Birdo v. Pfister, 12 C 05748

• Decision Date: 12 December 2013
• Docket Number: No. 12 C 05748,12 C 05748
• Parties: United States of America ex rel. KEVIN BIRDO Petitioner, v. RANDY PFISTER, Warden, Pontiac Correctional Center, Respondent.
• Court: U.S. District Court — Northern District of Illinois

United States of America ex rel. KEVIN BIRDO Petitioner, v. RANDY PFISTER, Warden, Pontiac Correctional Center,¹ Respondent.

No. 12 C 05748

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Entered: December 12, 2013

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER

Petitioner Kevin Birdo is currently incarcerated at the Pontiac Correctional Center in Pontiac, Illinois, where he is serving a sentence of seven and a half years for aggravated battery of a peace officer. Birdo now brings a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he raises four grounds for relief: (A) improper denial of his motion for substitution of the trial judge; (B) violation of Illinois Supreme Court Rule 13 when his public defenders did not individually withdraw from his case and notify Birdo of their withdrawals; (C) violation of Birdo's right to confrontation when the trial judge sustained the prosecutor's objection to a particular question; and (D) ineffective assistance of counsel as to Birdo's trial attorney for failing to investigate a potentially exculpatory witness. For the reasons explained here, the Court denies the petition with respect to Claims A, B, and C, but concludes that Birdo may be entitled to an evidentiary hearing of limited scope on his claim for ineffective assistance of counsel (Claim D).

I. Background

A. Facts²

On March 27, 2000, a grand jury indicted Birdo for aggravated battery pursuant to 720 ILCS 5/12-4(b)(6). The charge derived from an incident during the transfer of inmates at the Logan Correctional Center in Lincoln, Illinois on January 12, 2000. Birdo was charged with punching a correctional officer several times and spitting in his face next to the Menard Correctional Center transfer bus while it was stopped at Logan. Birdo was tried and convicted of aggravated battery twice by a jury. Logan County assistant public defender Jeff Page was appointed to represent him at both trials.

The First Trial. Prior to Birdo's first trial, Page submitted a disclosure to the court listing five witnesses, attaching written statements from four inmates (Maurice Hardaway,³ Mauricio Rivas,⁴ Jason Bartman,⁵ and Lonnie Henry⁶), and providing the name of CorrectionalOfficer Michael Littleton. Trial commenced on August 12, 2002. During the course of the trial, Birdo was physically restrained with leg shackles and handcuffs, and was required to take the stand wearing the same restraints. Dkt. 15-6 at 101.

The State presented the testimony of Correctional Officers Bryan Wagner and Craig Cowan. Wagner testified that during the transfer of inmates on January 12, 2000, Birdo stepped onto a bus on which Wagner, Cowan, and Littleton were waiting and stated, "If you want me off this fucking bus you're going to have to take me off." Dkt. 15-15 at 115. Wagner told Birdo to get off the bus and Birdo provided essentially the same response, after which Wagner stepped into the stairwell of the bus and "grabbed a hold of his arm to escort him off the bus...." Id. at 116. Birdo then "jerked away from me and hopped down onto the ground, jumped off the last step onto the ground ... [A]s I was stepping outside on the ground ... Birdo came from the side and with his fist doubled up hit me up side the head, kind of knocked me up against the door, caught me off guard, and then came back and hit me a second time somewhere in the jaw area. And then the third time he swung at me I blocked it with my hand." Id. Wagner added that he had "a small cut to the side of my head, and I had a little cut on the back of my hand ... [and] Iwas having pain from my neck over to my shoulder ...." Id. at 117. Cowan testified that "Birdo stepped onto the bus saying he wanted to get on because he was cold. Lieutenant Littleton asked him to step off ... Inmate Birdo refused to get off ... Then Officer Wagner stood up and told him he needed to get off the bus ... [Birdo] said, 'Fuck you. I'm not getting off ... Why don't you fucking make me, bitch.' So Officer Wagner proceeded down the steps. I stood up and he went to grab Mr. Birdo's arm, and he kind of jumped off the bus and kind of in the same motion he c[a]me across ... c[a]me up and hit Wagner in the side of the head and neck area ... and he got hit twice more that I could see, same head and neck area. And then Wagner blocked the last ... [A]nother officer from another bus had come over to help us out, got some leg irons. While Officer Wagner was applying [leg irons] Mr. Birdo spit in his face." Id. at 141-42. Cowan also testified that the driver of the bus was Officer David Young, that Young "wasn't on the bus at the time of the incident," and that he "d[id]n't know truthfully" where Young was at the time— "I imagine he went inside to do some sort of paperwork." Id. at 140, 147.

The defense called Mauricio Rivas, an inmate, who testified that Birdo asked to get on the bus because he was cold. "[W]hen Mr. Birdo asked if he could board the bus the officer inside made some sort of a humorous comment about it ... I remember him laughing about it ... He was basically mocking him." Id. at 166-67. Birdo returned to the line of inmates waiting outside of the bus, and then tried to get on the bus a second time but "was pushed off by one of the officers inside." Id. at 168. Rivas did not see Birdo strike an officer during the incident. Id. at 169. Birdo's trial attorney did not call any of the other witnesses he listed in his disclosure.

Birdo testified on his own behalf that he attempted to board the bus twice because he was cold and that during the second attempt, "I believe the bus driver said - he made some type of derogatory statement ... I'm not for sure exactly what he said, but he made a statement that was- I guess you could say it was racial. I mean, he said something about I guess we're going to have some fudge sickles, or something like that, for dessert." Id. at 190. Birdo further testified that when he tried to board the bus a third time, Wagner "grabbed me by my label of the jumpsuit, pushed me, and pushed me off the bus. I landed on my head ... I believe it was Officer Wagner ... jumped on top of me, had his elbow in my head, had me down, face stuck to the pavement. Another officer, I don't know who it was. I don't believe it was ... Officer Cowan ... but another officer jumped on my legs ..." Id. at 193.

During the State's closing rebuttal argument, the prosecutor made several improper comments. For example, the prosecutor accused Page of "mak[ing] up things" and "sucking up" to the jury. Dkt. 15-6 at 101. The prosecutor also raised Birdo's prior convictions as evidence of Birdo's propensity to commit crimes—"what happened was an angry, hostile, profane convicted felon, violently convicted felon who was trying to be controlled by two guards." Id. at 102. Incredibly, the prosecutor even denigrated the presumption of innocence, stating "that's a legal fiction because ... at this point, you've already, in your minds, have heard the evidence and began to form judgments ... that presumption of innocence that we are all entitled to, but we should not have the benefit of once we have committed a crime, crimes such as these." Id. at 102-03. The jury found Birdo guilty of aggravated battery.

Birdo's Motion for a New Trial. Page moved for a new trial on Birdo's behalf, asserting, among other arguments, that Birdo was prejudiced by the fact that he was physically restrained with leg shackles and handcuffs in view of the jury and that he was denied a fair trial due to the prosecutor's comments during his rebuttal closing argument. Dkt. 15-6 at 100-03. On October 8, 2002, the trial court granted the motion. The court stated in an oral ruling that a newtrial was warranted because of the "argument issue," referring to the prosecutor's comments, and the "shackles issue." Dkt. 15-17 at 2.

Birdo's Pre-Trial Motions. On the morning of the second trial (November 17, 2003), Birdo (although still represented by Page) submitted three written pro se motions: (1) to dismiss the indictment; (2) to substitute the judge; and (3) for a continuance. As part of his motion to dismiss the indictment, Birdo argued that Page was ineffective for, among other reasons,

not promptly comply[ing] with the defendant's reasonable request for information regarding the bus driver whose name the defendant does not know, but is absolutely sure was physically involved and present during the entire alleged incident. During the trial the defendant informed his attorney that Mr. Cowan was not involved but instead a bus driver was. After the trial the defendant requested information regarding the bus driver and after the new trial was ordered the defendant still sought information regarding this material witness and this request was never responded to or fulfilled by Mr. Jeff Page.

Dkt. 15-13 at 34. Page stated on the record that "what directly concerns me is his statements that I have failed to secure a witness on his behalf that he thinks is critical and saying that failure is a violation of professional conduct, and now in no uncertain terms is saying I'm ineffective on his case." Id. at 39. Page later made an oral motion to withdraw as Birdo's counsel, which was denied. Id. at 39-40, 46. The court stated, inexplicably in light of Birdo's complaint about Page's failure to obtain information about the bus driver, that "I don't believe any of his criticisms are basically as to what Mr. Page has done." Id. at 46. As to the motion to substitute the judge, Birdo argued that the same trial judge "sat on my first trial and heard me testify" and that the judge forced him to wear "full upper body and leg restraints in full view of the jury." Id. at 42. As to the motion for a continuance, Birdo argued in his written submission that Page had failed to act on information from Birdo regarding the bus driver's presence during the incident and thatBirdo needed a substantial continuance to find the bus...