Marilyn Mulero v. Sheryl Thompson , 668 F.3d 529 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3875
M ARILYN M ULERO ,
Petitioner-Appellant,
v.
S HERYL T HOMPSON, Warden of the
Dwight Correctional Center,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CV 03146—Charles R. Norgle, Sr., Judge.
A RGUED S EPTEMBER 15, 2011—D ECIDED F EBRUARY 7, 2012
Before B AUER, M ANION, and S YKES, Circuit Judges.
M ANION, Circuit Judge. Marilyn Mulero was charged
in Illinois with four counts of murder, two counts of
conspiracy to commit murder, and one count of
unlawful use of a firearm by a felon. She entered a
blind plea of guilty and the counts were then merged,
resulting in a state trial court entering judgment
against Mulero on two counts of intentional murder.
2 No. 10-3875
Mulero was eventually sentenced to life imprison-
ment—the mandatory minimum sentence for a double
homicide. After exhausting her state court remedies,
Mulero filed a petition for habeas relief in the district
court, alleging her trial attorney provided ineffective
assistance of counsel. The district court concluded that
many of Mulero’s ineffective assistance claims were
defaulted and held that the non-defaulted claims failed
on the merits. The district court then granted a certif-
icate of appealability limited to two issues—whether
Mulero’s attorney was ineffective for, prior to advising
Mulero concerning her desire to enter a blind plea of
guilty, 1) failing to investigate witnesses, and 2) failing
to obtain supporting services. Mulero presents those
issues on appeal, arguing ten specific alleged failings
by her attorney. We conclude that Mulero has preserved
only three of these ten arguments—those she presented
through one complete round of state court review. Specifi-
cally, Mulero has preserved only the questions of
whether her attorney was ineffective for 1) failing to
investigate witness Jackie Serrano; 2) failing to obtain
psychological evidence to support an argument that
Mulero’s confession was involuntary; and 3) failing
to recognize that witness Yvette Rodriguez had made
inconsistent statements and had a motive to lie. While
Mulero preserved these arguments, they all fail on
the merits. Accordingly, we affirm.
I.
Nearly twenty years ago, on May 11, 1992, then-21-year-
old petitioner Marilyn Mulero, 15-year-old Jacqueline
No. 10-3875 3
Montanez and 16-year-old Madeline Mendoza, all mem-
bers of the Maniac Latin Disciples gang, decided to seek
revenge for the Latin Kings’ murder of their friend,
“Mudo.” Mulero borrowed her brother’s car and one of
the trio obtained a small silver automatic gun to carry
out what they would later describe as a “mission” for
their “nation.” As they were leaving for their mission,
the threesome saw Yvette Rodriguez. Rodriguez would
later testify that they invited her to go “make a hit
with them and roll on some flakes,” which meant to
kill or fight the Latin Kings. Rodriguez declined.
Mulero then drove Montanez and Mendoza into
Latin Kings territory, where they saw two men in another
car, Jimmy Cruz and Hector Reyes, whom Montanez
recognized as Latin Kings. The young women invited
Cruz and Reyes to “party” with them in nearby
Humboldt Park. After they all arrived, Montanez went
into the bathroom with Reyes and shot him in the back
of the head, killing him. Montanez left the bathroom
and, according to Mulero’s original confession, then
handed Mulero the gun and Mulero shot Cruz in the
back of the head, killing him. The three then drove off.
At the time of the shooting, about 12:15 a.m. on May 12,
1992, Jackie Serrano was looking out of the window of
her nearby apartment. She would later testify that she
looked into the park after hearing some voices and
giggling and that she saw three women, one of whom
was taller than the others, and two men. She saw the
taller female enter the restroom with a male, and after
hearing a firecracker sound, Serrano saw her emerge
4 No. 10-3875
from the restroom alone. Serrano then saw a shorter
female go behind the second male, observed a flash
behind that man, and saw him fall to the ground. This
evidence was consistent with Montanez shooting
Reyes and Mulero shooting Cruz, as Montanez is 5'7"
and Mulero is 5'1".
After the shooting, Rodriguez saw Mulero, Montanez,
and Mendoza back in their neighborhood, and Mulero
and Montanez were bragging about having murdered
Cruz and Reyes. Later that evening, police arrested Rod-
riguez on a drug offense and Rodriguez identified
Mulero, Montanez, and Mendoza as the perpetrators of
Cruz’s and Reyes’s murders. The next day, officers
arrested Mulero and Montanez, and a few days later
they arrested Mendoza.
Following her arrest and substantial questioning,
Mulero gave a court-reported statement to a Chicago
detective and an assistant state’s attorney. In her state-
ment, she acknowledged her involvement as detailed
above. Additionally, after she confessed to the murders,
while being escorted through the police station, a televi-
sion news camera captured Mulero shouting gang
slogans, “KK,” which means “king killers,” and flashing
gang signals with her hands.
The state charged Mulero with four counts of murder,
two counts of conspiracy to commit murder, and one
count of unlawful use of a firearm by a felon. On June 5,
1992, a Cook County Public Defender appeared on
behalf of Mulero. The Public Defender represented
Mulero until around early 1993, and during that time,
No. 10-3875 5
among other things, the Public Defender had an investiga-
tor speak with Serrano and filed a motion to suppress
Mulero’s confession. Then sometime in early to mid-1993,
a couple for whom Mulero used to babysit hired a
private attorney, Jeremiah Lynch, to represent Mulero.
Lynch apparently filed an amended motion to suppress
and then argued that motion. In June 1993, the state
court denied the motion to suppress Mulero’s confession,
finding that Mulero’s statement to the police was
voluntary and that there were no promises, misrepre-
sentations, or fabrications by the police.
Two months later, in August 1993, Montanez was
convicted of the murders of Cruz and Reyes and sen-
tenced to life imprisonment. (Because Montanez was a
minor, she did not qualify for the death penalty.) At
Montanez’s trial, the prosecution presented Montanez’s
court-reported statement, which was consistent with
Mulero’s confession, and testimony from, among others,
Rodriguez and Serrano. Following Montanez’s convic-
tion, Mendoza pleaded guilty on September 22, 1993, to
one count of murder of Cruz and one count of conspiracy
to murder Reyes. At her change of plea hearing, Mendoza
swore under oath that Montanez had shot Reyes and
that Mulero had shot Cruz. Less than a week later, on
September 27, 1993, Mulero pleaded guilty to all counts
without the benefit of a plea agreement—this is referred
to as a blind plea.
At her change of plea hearing, Mulero testified that
she was pleading guilty because she knew she was guilty
and that it was her idea to plead guilty. Following
6 No. 10-3875
Mulero’s guilty plea, the counts were merged, resulting
in a state trial court entering judgment against Mulero
on two counts of intentional murder. After pleading
guilty, Mulero proceeded to the sentencing phase of
the proceedings. In Illinois, the only possible sen-
tences for two counts of intentional murder were life
imprisonment without possibility of parole, or death. On
November 12, 1993, a jury sentenced Mulero to death.
On December 17, 1993, Lynch filed a motion for a new
sentencing hearing, arguing that the trial court had erred
in allowing the prosecution to argue at the sentencing
hearing that Mulero was not truly remorseful for the
crimes because she had filed a motion to suppress her
confession. The trial court denied that motion and
entered the sentence of death against Mulero.
Mulero appealed her death sentence directly to the
Illinois Supreme Court. She also, on January 6, 1994, filed
a pro se motion to withdraw her guilty plea. In her
motion to withdraw her guilty plea Mulero argued, among
other things, that Lynch had coerced her into pleading
guilty. Counsel was later appointed to represent Mulero
and to argue this motion. At the trial court’s hearing on
Mulero’s motion to withdraw her guilty plea, Lynch
testified at length. Lynch stated that he was hired by a
family for whom Mulero used to babysit and that he
took over the case from the Public Defender’s office.
Lynch noted that he visited the crime scene twice, re-
viewed discovery, and reviewed the Public Defender’s
file, including a statement from one of the Public De-
fender’s investigators who had interviewed Serrano.
Lynch also indicated that Serrano’s statement might
No. 10-3875 7
have implicated the taller woman (and thus not Mulero)
as the shooter of the second victim outside the rest-
room, but that Serrano’s statement was not definitive
on whether Mulero or the taller woman had done the
second shooting. Lynch also testified that he had
reviewed the various police reports, including reports
by two different officers which contained conflicting
stories from Rodriguez—one which stated that Mulero
had shot one of the victims and the other which
indicated that Montanez had shot both victims. Lynch
further stated that the State had made no plea offer
and refused to participate in a pre-trial plea conference.
Additionally, Lynch testified that when he met with
Mulero in August 1993, Mulero directed him to enter a
guilty plea on her behalf. Lynch stated that he was sur-
prised by Mulero’s request and told her to think about
it. He also explained that he did not want to discuss a
plea at that time because Mulero’s request at this meeting
came directly on the heels of Montanez’s recent con-
viction and following the court’s previous denial of
Mulero’s motion to suppress. Lynch added that he also
wanted to think more about such a strategy.
When they next met, Lynch and Mulero discussed
for about an hour the pros and cons of entering a blind
plea of guilty. Lynch noted the risk in entering such a
plea was that Mulero could be sentenced to death. But
he also noted that there might be an advantage in
pleading guilty because it might convince the jury to
spare Mulero’s life because it could show that, after
having had time to think about her actions, Mulero was
8 No. 10-3875
truly remorseful. And thus her plea would offset the
negative impression naturally flowing from the news
videotape which showed Mulero as proud of her ac-
tions. Lynch testified that in addition to discussing
the pros and cons in general, he also discussed the
strength of the case against Mulero and the weight of
the evidence. Lynch explained that the discovery and
other evidence included: Mulero’s court-reported con-
fession and her claims of coercion, Montanez’s confes-
sion, the videotape evidence, Rodriquez’s statements—
including the conflicting aspects of those statements
concerning whether there was one shooter or two—
Serrano’s eyewitness account, and the Public Defender’s
investigator’s statement that Serrano may have im-
plicated the taller woman as the shooter of the second
victim. Lynch stressed that he did not tell Mulero one
way or the other what to do—as he said, he made no
recommendation “whatsoever” about whether Mulero
should plead guilty. Rather, as Lynch explained, after
discussing the evidence with her, Mulero decided on
her own that she wanted to plead guilty.
Mulero also testified at the hearing on her motion to
withdraw her guilty plea. People v. Mulero, 680 N.E.2d
1329, 1345 (Ill. 1997). She testified that it was Lynch’s
idea for her to plead guilty and that she pleaded guilty
because trial counsel did not give her “much of a choice.”
Id. In addition, in support of her motion to withdraw her
guilty plea, Mulero presented the testimony of a psycho-
logist, Michael Kovar. Id. Dr. Kovar testified that he
conducted several psychological tests on Mulero, which
showed that she was highly suggestible and easily
No. 10-3875 9
misled. Id. He further concluded that Mulero had de-
ficiencies in “the ‘fund’ of information, vocabulary, and
commonsense reasoning.” Id. And “[b]ased on his test
findings, her mental status, her history and her overall
presentation, Dr. Kovar concluded that [Mulero’s] plea
of guilty was not knowingly and intelligently made,
given defendant’s lack of competence at the time she
pled guilty.” Id. Dr. Kovar further diagnosed Mulero
as “having a depressive disorder, a general anxiety disor-
der, and presently manifesting borderline intellectual
functioning.” Id.The state trial court denied Mulero’s motion to with-
draw her guilty plea on December 7, 1994. The state
court found Dr. Kovar’s testimony not credible, noting he
was “not a psychiatrist” and “not a medical doctor.” The
judge then elaborated on his reasons for rejecting
Dr. Kovar’s testimony and Mulero’s motion to with-
draw her guilty plea, stating:
[Dr. Kovar] suggests to this Court that he knew what
her mental state was and her suggestability when
she had conversations with her lawyer and when
she pled guilty in front of me, and I recall it very, very
well and I have an advantage on some of the parties.
I was here for these proceedings. And I was also
here when Mr. Jeremiah Lynch tried the case. I found
him to be a very professional, credible, excellent
lawyer, probing cross-examination, conducted him-
self in an extremely credible manner. He hasn’t been
here in the last few days to see his reputation and
his ability besmirched, but I believe him and I heard
10 No. 10-3875
him testify relative to this motion and he was an
extremely credible, straightforward, truthful witness.
And he said one key thing. That Marilyn Mulero it
was her idea to plead guilty, not his, and her idea
to plead guilty came after she lost a motion to sup-
press the court reporter [sic] confession in which
she admitted the offense and after her co-defendant
Jacqueline Montanez, also known as Loco, was
found guilty in about half an hour on the same evi-
dence. She suggested to Jeremiah Lynch that if she
were to plead guilty what would that mean, and she
had numerous discussions on the pros and cons
of pleading guilty. . . . [S]he knew that there was testi-
mony from a newsreel in a videotape taken by one
of the media in which after the statement she and
Montanez come [sic] out of a room and cockily
wearing gang clothes, giving gang signals so to
show no remorse whatsoever, and they discussed
and Mr. Lynch testified to this, what the advantage
would be to plead guilty, and that would be that
she would show the jury that she had remorse for
what she did because it was almost a foregone con-
clusion that she did it and perhaps that would be
in her benefit to plead guilty. . . . That was her
choice. She entered that plea in front of me. She was
admonished as to what the penalties were, what
her rights were. She indicated to me that she under-
stood and I believed her, and I’ve been talking
to defendants for a long time, that she did it know-
ingly, voluntarily and intelligently. And she also did
it after numerous, numerous conversations with her
No. 10-3875 11
attorney. And it was a remarkable decision at the
time. There were advantages to it. Her perceived
advantages. They didn’t work out that way but at
the time she did it she did it from an intelligent,
informed viewpoint that perhaps this was the best
way to go. And there’s no question that Mr. Lynch
in my view, and this is the only case he tried in
front of me, but the way he conducts himself as a
competent attorney. That’s what lawyers are for.
He told her the pros and the cons. He didn’t tell her
you got to go this way. She’s the one that made
that decision. And I’ll tell you why I know that. Be-
cause Lynch said it and I believe him, but more im-
portantly, she said it. In front of the jury after
taking the same oath that she took here today and
proceeded to lie. Her motion to withdraw the guilty
plea is denied.
After Mulero lost her motion to withdraw her guilty
plea, she appealed the denial to the Illinois Supreme
Court, arguing that the trial court erred in ruling that
Dr. Kovar’s testimony was not credible based solely on
the fact that he was a clinical psychologist and not a
medical doctor. Mulero, 680 N.E.2d at 1344. The
Supreme Court rejected Mulero’s challenge to the state
court’s ruling on her motion to withdraw her guilty
plea in Mulero, holding that although the court had
“improperly commented about [Dr. Kovar] not being
a medical doctor or a psychiatrist, [t]he record, how-
ever, demonstrates that the trial judge did not reject
Dr. Kovar’s credibility because he was not a medical
doctor or a psychiatrist. Rather, the trial judge did not
12 No. 10-3875
agree with Dr. Kovar’s conclusions because of his own
observations of defendant while presiding over the pro-
ceedings in this case, and because he found [Lynch] to
be credible.” Id. at 1345. The Supreme Court then con-
cluded that “the trial judge properly rejected
Dr. Kovar’s credibility in light of other evidence” and
found there was no basis for granting a new hearing on
the motion to withdraw Mulero’s guilty plea. Id. at 1341.
While Mulero lost her challenge to the denial of her
motion to withdraw her guilty plea, she prevailed on
her challenge to her death sentence. The Illinois
Supreme Court overturned her death sentence, holding
that the trial court had erred in allowing the prosecution
to introduce into evidence Mulero’s motion to sup-
press—either for substantive or impeachment purposes
at sentencing. Id. at 1340. The Supreme Court then re-
manded the case for a new sentencing hearing. Id.At the second sentencing hearing, Mulero’s new attor-
ney, in arguing in favor of life imprisonment, suggested
that Mulero did not really shoot Cruz, although he ac-
knowledged that she was nonetheless legally accountable
for the murders under Illinois law. The second jury sen-
tenced Mulero to life imprisonment without possibility
of parole. Mulero’s Public Defender filed an Anders
brief, and the state appellate court affirmed Mulero’s life
sentence, holding there were no arguable issues for
appeal. See People v. Mulero, No. 1-99-0825 (Ill. App. Ct.
1999). Mulero did not file a Petition for Leave to Appeal
to the Illinois Supreme Court.
Mulero then filed four separate versions of a state post-
conviction petition between 1996 and 2006. In these
No. 10-3875 13
petitions, she alleged that her trial attorney, Lynch, was
ineffective in numerous ways. Each petition included
some overlap, but also made slightly different claims.
The state trial court denied her petitions for post-convic-
tion relief and Mulero appealed to the Illinois appellate
court, which affirmed. The Illinois Supreme Court then
denied Mulero leave to appeal.
After the state courts denied Mulero’s claims of ineffec-
tive assistance of counsel, she filed a petition for habeas
corpus in federal district court, again alleging ineffective
assistance of trial counsel from Lynch. She alleged numer-
ous supposed deficiencies, but the district court found
many of the claims procedurally defaulted and rejected
the remaining claims. The district court then issued
a certificate of appealability limited to two issues:
1) whether Lynch’s limited investigation into the facts
of the murders, particularly his admitted failure to inter-
view any witnesses, constitutes ineffective assistance
of counsel; and 2) whether Lynch’s failure to procure any
supporting services, including experts or investigators,
in violation of ABA death penalty case Guidelines, consti-
tutes ineffective assistance of counsel. Mulero appeals.
II.
As noted, the district court certified two issues for
appeal, the first concerning Lynch’s failure to investigate
and the second concerning his failure to obtain sup-
porting services. In her brief on appeal, Mulero presents
ten different alleged deficiencies by Lynch related to
his claimed unconstitutional failure to investigate and
14 No. 10-3875
failure to obtain supporting services.1 The government
responds that Mulero has procedurally defaulted on all
but three issues. We agree.
To preserve a federal claim for habeas review:
[i]f the claim comes from the Illinois state courts, the
petitioner must have presented each claim in the
habeas petition to the Illinois Appellate Court and to
the Illinois Supreme Court in a petition for discretion-
ary review. O’Sullivan v. Boerckel, 526 U.S. 838, 844-45
(1999). As part of this requirement, a petitioner must
have fairly presented both the operative facts and
legal principles that control each claim to the state
judiciary. Wilson v. Briley, 243 F.3d 325, 327 (7th Cir.
2001). A petitioner’s failure to fairly present each
habeas claim to the state’s appellate and supreme
court in a timely manner leads to a default of the
claim, thus barring the federal court from reviewing
the claim’s merits. O’Sullivan, 526 U.S. at 848.
Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010).
1
Specifically, Mulero argues that Lynch was ineffective because
he did not 1) interview witnesses; 2) discover key impeachable
evidence; 3) use a key witness’s contradictory statement;
4) investigate the crime scene; 5) investigate bullet angulation
evidence; 6) reasonably consult with Mulero; 7) meaningfully
consult with the prior lawyer who worked on Mulero’s case;
8) consult with co-counsel; 9) attend conferences or seminars
to educate himself on how to effectively represent Mulero; and
10) consult with a mitigation expert to prepare himself for
the sentencing phase of Mulero’s trial.
No. 10-3875 15
In this case, as the government correctly points out,
Mulero only presented three of the claimed deficiencies
through one complete round of state court review. Mulero
does not really argue otherwise; instead she merely
counters that the district court concluded that she had
preserved all issues related to Lynch’s failure to
investigate witnesses and failure to obtain supporting
services. See Petitioner’s Reply Brief at 5-7. But “we
review a district court’s procedural default ruling de
novo.” Ward v. Jenkins, 613 F.3d 692, 696 (7th Cir. 2010).
Thus, we owe no deference to the district court’s view of
default, but rather review the state court record with
fresh eyes. We have done so and, in fact, Mulero only
presented three claimed deficiencies through one
round of Illinois review. Specifically, Mulero argued to
the Illinois appellate court that Lynch was ineffective
because he did not: 1) discover that Serrano claimed
to have seen the taller woman shoot Cruz; 2) obtain
psychological evidence to support an argument that
Mulero’s confession was involuntary; and 3) recog-
nize that he could call into question the only real
remaining evidence against Mulero—Rodriguez’s state-
ments—based on inconsistencies in her statements and
bias. Brief and Argument of Petitioner-Appellant to
Illinois appellate court at 10-17. While Mulero did
present numerous other claims of ineffective assistance
of counsel to the Illinois state trial court and in her
petition for review to the Illinois Supreme Court, those
other claims were not developed in her briefs to the
Illinois appellate court challenging the denial of her
petition for post-conviction review. Accordingly, only
16 No. 10-3875
the three issues noted above are preserved for our
habeas review.2
For the three preserved issues, our habeas review is
governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). “Under the AEDPA, a
petitioner for habeas relief must establish that the state
court proceedings resulted in a decision that (1) was
‘contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court’; or (2) was ‘based on an unreasonable
determination of the facts in light of the evidence pre-
sented in the State court proceeding.’ ” 28 U.S.C.
§ 2254(d)(1)-(2).
In her habeas petition, Mulero challenged her state
court conviction based solely on § 2254(d)(1) and then
based only on the “unreasonable application” prong of
(d)(1). Under the “unreasonable application” clause,
habeas relief is appropriate “if the state court correctly
identifies the governing legal principle from [Supreme
Court] decisions but unreasonably applies it to the facts
of the particular case.” McCarthy v. Pollard, 656 F.3d 478,
483 (7th Cir. 2011) (internal quotation omitted). Impor-
tantly, “[t]he focus of the reasonableness inquiry is on
2
While on appeal Mulero makes passing reference to her
innocence, she does not argue that her default should be
excused because of cause and prejudice or a fundamental
miscarriage of justice, and accordingly there is no basis to
excuse her default. See Promotor v. Pollard, 628 F.3d 878, 887
(7th Cir. 2010).
No. 10-3875 17
whether the state court’s application of clearly estab-
lished federal law is objectively unreasonable, not whether
it applied clearly established federal law correctly.” Id.The federal law at issue here is Strickland v. Washington,
466 U.S. 668 (1984), which governs ineffective assistance
of counsel claims. Under Strickland’s familiar two-part
test, an attorney renders ineffective assistance of counsel
if 1) the attorney’s performance fell below “an objective
standard of reasonableness,” id. at 688, and 2) there is
a “reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different.” Id. at 694. “To satisfy Strickland in the
context of a guilty plea, a petitioner must show that coun-
sel’s advice regarding the plea was objectively unrea-
sonable and that there is a reasonable probability that
but for counsel’s error, [petitioner] would not have pled
guilty, but would have insisted upon a trial.” Ward,
613 F.3d at 698.
The Supreme Court in Hill v. Lockhart, 474 U.S. 52, 59
(1985), explained that “the ‘prejudice’ inquiry will closely
resemble the inquiry engaged in by courts reviewing
ineffective assistance challenges to convictions obtained
through a trial.” Id. at 59. The Court gave the following
example:
[W]here the alleged error of counsel is a failure to
investigate or discover potentially exculpatory evi-
dence, the determination whether the error “preju-
diced” the defendant by causing him to plead guilty
rather than go to trial will depend on the likelihood
that discovery of the evidence would have led
18 No. 10-3875
counsel to change his recommendation as to the plea.
This assessment, in turn, will depend in large part on
a prediction whether the evidence likely would have
changed the outcome of a trial.
Id.With these principles in mind, we turn to Mulero’s
three ineffective assistance of counsel arguments.
Initially, we note that the Illinois state trial court did
not address the first prong of Strickland. In other words,
the state court never determined whether Lynch’s guid-
ance in advising Mulero concerning her desire to enter
a blind plea fell below “an objective standard of reason-
ableness.” Because the state court did not address
this question, our review would be de novo. Sussman v.
Jenkins, 636 F.3d 329, 350 (7th Cir. 2011). But we need
not reach that question because, as discussed below,
Mulero cannot establish that the state court’s conclu-
sion that she did not suffer prejudice was unreasonable.
First, Mulero argued that Lynch was ineffective for
failing to investigate Serrano and to obtain from Serrano
a statement that she had seen the taller woman (i.e.,
Montanez) shoot Cruz. In support of this argument,
Mulero pointed to affidavits sworn by an investigator
and an intern, in which they stated that on July 17, 1997,
Serrano informed them that she saw the taller of the
three women walk behind Cruz and shoot him. While it
is true that Lynch did not speak with Serrano or hire an
investigator to do so, the Public Defender from whom
Lynch took over the case had hired an investigator.
Lynch knew that the investigator had concluded that
No. 10-3875 19
Serrano’s statement indicated that she might have seen
the taller woman shoot the man outside the restroom.
But Lynch also determined that Serrano’s statement was
not definitive. Lynch testified that he spoke with Mulero
about the inconsistencies in Serrano’s statements and
that she nonetheless wanted to plead guilty. And the
state court found Lynch’s testimony credible. Given that
Lynch and Mulero already knew of the inconsistencies
in Serrano’s eyewitness reports based on a report by an
investigator hired by Mulero’s original attorney, there
are no reasonable grounds to believe that further inves-
tigation would have changed Lynch’s advice about en-
tering a blind plea or Mulero’s decision to enter such
a plea. Nor is there any reason to believe that obtaining
another out-of-court statement from Serrano would
have altered the strength of the case against Mulero:
Notwithstanding Serrano’s supposed statements in 1997
to an investigator and intern hired by Mulero’s latest
attorney that the taller woman shot Cruz, Serrano
testified at Montanez’s re-trial in November 1999 3 that
one of the shorter women was the second shooter.4
3
Montanez’s 1993 conviction was overturned in People v.
Montanez, 652 N.E.2d 1271, 1274 (Ill. App. 1995). Following a
second jury trial in November 1999, Montanez was again
convicted of the murders and sentenced to life imprisonment.
4
As we explained in Mendiola v. Schomig, 224 F.3d 589, 592 (7th
Cir. 2000), there may be many reasons why a witness would
tell a defendant’s friends or attorney what they want to hear:
“the formality of a court, the presence of the litigants, and the
(continued...)
20 No. 10-3875
Mulero’s second claimed deficiency—that Lynch failed
to obtain psychological evidence to support an argument
that Mulero’s confession was involuntary—fares no
better. In his motion to suppress, Lynch argued that
Mulero’s confession was psychologically coerced, but the
state court rejected this argument. Lynch also testified
that he discussed making a coerced-confession argument
with Mulero, but he doubted it would succeed given
her boastful display to the television cameras following
her confession. Moreover, the psychological evidence
later obtained from Dr. Kovar was rejected as not
credible by the state trial court and the Illinois Supreme
Court found that in light of the other evidence, the
trial court had properly rejected Dr. Kovar’s credibility.
Additionally, the assistant state’s attorney for Cook
County to whom Mulero confessed testified at her sen-
tencing hearing that during her confession Mulero was
very calm and in control of herself and did not indicate
any remorse for her actions. He added that it appeared
that Mulero was very proud of what she had done. This
testimony also would negate a coerced-confession argu-
4
(...continued)
gaze of a judge induce witnesses to hew more closely to the
truth than they do when speaking in private and attempting to
appease the losing side’s advocate”; “[s]ome witnesses fall
prey to influences—perhaps the persuasive influence of a
skilled advocate asking leading questions, perhaps the less
wholesome influence of the defendant’s friends. . . . People
fear the Latin Kings for a reason.” Or, as in this case, the
Maniac Latin Disciples.
No. 10-3875 21
ment. Under these circumstances, the state court did not
act unreasonably in concluding that had Lynch obtained
additional psychological evidence, it would not have
changed his advice or convinced Mulero to change her
mind about entering a blind plea of guilty.
Finally, Mulero argued to the state court that Lynch
should have recognized that he could call into question
the only real remaining evidence against Mulero—incon-
sistencies in Rodriguez’s statements and bias. Specif-
ically, Mulero pointed to contradictory statements by
Rodriguez—statements indicating that Mulero shot one
victim and Montanez the other, and another statement
indicating that Montanez shot both victims. Mulero
also stressed that Rodriguez gave her statements to
officers only after having been arrested for drug offenses.
Lynch, though, testified that he had reviewed the
Public Defender’s file and discovery and knew of the
inconsistencies in Rodriguez’s police statements, and
that he also knew that she was in custody on drug charges
at the time she implicated Mulero. Lynch further
stated that in discussing a potential guilty plea with
Mulero, he discussed the case she was facing and the
discovery evidence. Thus, there is no reason to believe
that Lynch did not recognize that he could challenge
Rodriguez’s testimony if Mulero pleaded not guilty and
proceeded to trial. There is also no reason to be-
lieve that had Lynch independently confirmed the incon-
sistencies, Mulero’s decision to enter a blind plea would
have changed. Nor is there any reason to think that
additional investigation of Rodriguez would result in
Mulero’s acquittal if she had decided to plead not guilty.
22 No. 10-3875
In the end, what we have is an overwhelming pros-
ecutorial case against Mulero, which included: Mulero’s
own confession to police and an assistant state’s attor-
ney; her post-confession behavior captured on camera;
Montanez’s confession implicating Mulero; Serrano’s
statements implicating Mulero; and Rodriguez’s state-
ments of the trio’s statements before and after the shoot-
ing. Lynch could have attempted to call into question this
evidence at trial, but he advised Mulero of the evidence
and the pros and cons of pleading guilty and she nonethe-
less decided to plead guilty. Further investigation would
not have added anything to this assessment. Moreover,
the inconsistencies in Serrano’s and Rodriguez’s prior
statements, which Mulero points to as evidence that
she did not shoot Cruz, do not help Mulero because
under Illinois law, Mulero was accountable whether or
not she pulled the trigger—the only difference being
whether she qualified for the death penalty. Under
these circumstances, even if Lynch’s performance was
objectively unreasonable because he did not recom-
mend against a blind guilty plea in light of the inconsis-
tencies in Serrano’s and Rodriguez’s testimony, it is not
reasonable to believe that Mulero suffered any prejudice.
Rather, the best that Mulero could hope for is what
she got—life in prison and not the death penalty.5
5
Finally, we note that Mulero, in passing, requests that this
court remand her case for a hearing, should this court not find
habeas relief appropriate. Mulero did not develop this argu-
ment, however, so it is waived. In any event, Mulero is not
(continued...)
No. 10-3875 23
III.
Nearly twenty years ago, Mulero pleaded guilty in
Illinois state court to two counts of murder and received
a sentence of life imprisonment. Even assuming her
attorney was deficient in failing to further investigate
inconsistencies or a motive to lie in statements by two
witnesses, or was deficient in failing to obtain psycho-
logical or IQ evidence to challenge Mulero’s confession,
the state court did not err in concluding that Mulero
suffered no prejudice. The evidence against Mulero
was overwhelming and there is no reasonable likelihood
that, in light of this overwhelming evidence, any further
investigation would have convinced Mulero to instead
plead not guilty and then alter the outcome of the pro-
ceedings, i.e., her conviction on two counts of murder
and life sentence. Accordingly, Mulero is not entitled to
habeas relief. We A FFIRM .
5
(...continued)
entitled to a hearing. AEDPA governs the availability of
evidentiary hearings on federal habeas review, and generally
bars them except in narrow exceptions inapplicable to
Mulero. See 28 U.S.C. §§ 2254(e)(2)(A), (B).
2-7-12