January 11, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 12-cv-860 -
Sharon Johnson Coleman, Judge.
Easterbrook, Williams, and Sykes, Circuit Judges.
an Illinois jury convicted Rodney demons of murdering Doris
Smith, his former girlfriend and mother of his infant son.
After an unsuccessful appeal and postconviction proceedings
in state court, demons sought federal habeas review under 28
U.S.C. § 2254. He raised several claims, but only one is
relevant here, demons argues that his trial attorney was
constitutionally ineffective in violation of the rule of
Strickland v. Washington, 466 U.S. 668 (1984), for
failing to call an alibi witness. The Illinois Appellate
Court declined to consider this claim because demons raised
it only in a pro se reply brief, which the court refused to
accept because he was represented by counsel. The district
judge concluded that the claim was procedurally defaulted.
But she also addressed the merits of the Strickland
claim and denied it.
affirm on the first ground. Procedural default precludes
federal merits review of Clemons's Strickland
Smith was shot and killed near her Chicago home in the early
morning hours of August 26, 2011. Her attacker chased her
down an alley and onto the street, firing shots as she fled
begging for her life and screaming for help. Two shots hit
their mark. Smith died of gunshot wounds to the hip and upper
demons was Smith's on-again/off-again boyfriend and the
father of her infant son. Several eyewitnesses identified him
as the shooter, and Chicago police arrested him later that
day. After lineups and some additional investigation, Cook
County prosecutors charged demons with Smith's murder and
a related count of using a firearm to commit that crime. A
jury convicted him as charged, and the trial judge sentenced
him to 45 years in prison.
an unsuccessful direct appeal, demons filed a pro se
postconviction petition in the trial court. He raised several
claims, including an argument that his trial counsel was
constitutionally ineffective in violation of
Strickland for failing to call Andre Smith as an
alibi witness, demons submitted an affidavit from Smith, his
friend and would-be alibi witness, together with his
postconviction petition. But the affidavit was difficult to read
and ended abruptly in the middle of the page as if a piece of
paper covered the bottom half of the page while it was being
trial judge rejected Clemons's various claims for relief.
Regarding the Strickland claim about the omitted
alibi witness, the judge held that demons had failed to make
the required factual showing because he did not submit
appropriate affidavits from potential witnesses and
"failed to explain the significance of their
moved for reconsideration, reiterating his claim about the
overlooked alibi witness. This time he attached a clearly
legible version of Smith's affidavit. The judge construed
this filing as an improper successive petition for
postconviction relief and denied it. An exception exists
under Illinois law if the prisoner can demonstrate cause for
his failure to bring the claim in his first petition and
resulting prejudice, demons demonstrated neither, so the
exception did not apply.
was represented by counsel on his appeal from the denial of
his postconviction petition. His attorney briefed a single
claim regarding an evidentiary error, demons filed a pro se
motion to supplement his counsel's brief; the motion
sought to add, among other things, the Strickland
claim regarding trial counsel's failure to call Smith as
an alibi witness, demons also moved for leave to file a pro
se reply brief raising that claim, tendering a proposed pro
se brief with the motion. The court issued an order saying it
would take the pro se motions with the merits of the appeal.
course the court issued a reasoned merits order addressing
only the arguments raised in Clemons's counseled briefs
and affirming the denial of postconviction relief. No mention
was made of Clemons's motions. Before the final mandate
issued, the court issued a confusing order saying that
Clemons's motion to file a pro se supplemental brief was
denied but his motion for leave to file a pro se reply brief
"is allowed." The court later issued a clarifying
order explaining that the motion to file a pro se reply brief
was denied, not "allowed" as the earlier order had
stated. This order clearly ...