In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1696
E FRAIN M ORALES,
Petitioner-Appellant,
v.
Y OLANDE JOHNSON,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 2656—Matthew F. Kennelly, Judge.
A RGUED F EBRUARY 17, 2011—D ECIDED S EPTEMBER 20, 2011
Before E ASTERBROOK, Chief Judge, and R IPPLE and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Efrain Morales was convicted
by a jury in Illinois state court of one count of first-
degree murder and two counts of attempted murder.
His cumulative sentence was ninety years in prison.
Morales filed two post-conviction petitions in Illinois
state courts, but obtained no relief. He filed a federal
habeas corpus petition pursuant to 28 U.S.C. § 2254,
2 No. 10-1696
claiming, inter alia, that he was deprived of his constitu-
tional right to effective assistance of trial counsel and
that the prosecution knowingly obtained his conviction
on the basis of perjured testimony. The district court
held an evidentiary hearing and denied the petition, but
granted a certificate of appealability on these two claims.
Morales appealed, and we affirm.
I. Background 1
A. Facts
On the evening of October 24, 1994, Charles Crawford,
Jose Nevarro, and Billy Bradford were gunned down as
they worked on Bradford’s car in front of his home at
710 North Willard Court, Chicago, Illinois. Bradford was
killed. Crawford and Nevarro survived their injuries.
Efrain Morales and Mario Gonzalez were charged in
connection with the shooting.
On May 13, 1996, Gonzalez pled guilty to first-degree
murder and two counts of attempted murder in exchange
for a forty-four-year sentence. In doing so, he stipulated
under oath to the following facts: On October 24, 1994,
he and Morales, members of the Milwaukee Kings gang,
1
We have provided a shortened version of the facts and
procedural background of this case, attempting to limit our
presentation to the more critical matters. A more com-
plete rendition may be found in Judge Kennelly’s thorough
and well-written opinion, see Morales v. McCann, No. 00 C 2656,
2010 WL 748203 (N.D. Ill. Feb. 25, 2010).
No. 10-1696 3
agreed to shoot some members of the Satan Disciples, a
rival gang. They got into Gonzalez’s car (which was
painted with gray primer) and drove to the area near
North Willard Court. They approached 710 North
Willard Court on foot, saw three people (Bradford,
Crawford, and Nevarro) working on a car and began
shooting at them. After that, Gonzalez and Morales
returned to the gray primer car, drove down another
street, and looked down Willard Court; Gonzalez saw
that three people lay shot in the street.
Morales’s jury trial commenced on May 15, 1996. The
state’s evidence included eyewitness testimony from
Crawford and Nevarro, identifying Morales as the
second shooter; testimony of Morales’s friend, Katrina
Scimone, that Morales told her he was involved in the
shooting and asked her to say she was with him that
night; and physical evidence which confirmed that two
gunmen were involved in the shooting. The trial testi-
mony revealed the following:
On the evening of October 24, 1994, Crawford and
Nevarro were helping Bradford work on his car, which was
located in front of Bradford’s house at 710 North Willard
Court. Crawford had moved from Chicago to Oklahoma
in about 1981 and was in Chicago visiting his son, who
lived across the street from Bradford. Nevarro was
dating Bradford’s daughter. At one point, Bradford and
Nevarro went inside Bradford’s house to get some tools.
Crawford stayed outside and observed two cars, a white
Chevy and a gray primer Chevy, each containing three
or four people, driving on Willard Court. Crawford
4 No. 10-1696
recognized Gonzalez as the driver of the gray car and
knew that he was a member of the Milwaukee Kings gang.
As Gonzalez drove by, he “threw” a hostile gang sign
at Crawford. Crawford recognized it because he was a
former member of a rival gang, the Satan Disciples.
Crawford had left that gang around 1981. Scared, Craw-
ford hid in a nearby gangway until Bradford and
Nevarro returned. He told them what had happened
and the men continued working on the car.
Crawford testified that Nevarro yelled, “Look out,” and
Crawford looked up and saw Morales and Gonzalez
walking across the street from the alley on the east side
of Willard Court. Crawford knew them both; he had seen
them several times before. He knew Gonzalez’s name, but
didn’t know Morales’s name. Both Gonzalez and Morales
wore black “hoodies.” Crawford looked straight at them
and could see their faces. Gonzalez had a black automatic
pistol, and Morales had a chrome revolver. Morales
and Gonzalez started firing at Crawford, Bradford and
Nevarro. Crawford was hit in the knee. Crawford saw the
same white Chevy that had driven by earlier pull up and
someone yelled, “Hurry up.” Morales and Gonzalez
stopped shooting and headed into the alley next to Brad-
ford’s house.
At approximately 10:45 p.m. that night, Dorothy Brad-
ford heard gunshots coming from outside. She ran outside
and saw that her husband was shot and lying on the
ground. Bradford died from his injuries. As she held her
dying husband, Dorothy saw a gray primer car being
driven on nearby Huron Street. She had seen that same
No. 10-1696 5
car “around and around and around” her neighborhood
for weeks before. Morales and Gonzalez were usually
the drivers. Dorothy knew Morales as “Shotgun” and
identified him at trial.
Officers quickly arrived on the scene. They ques-
tioned Crawford, seeking a description of the assailants.
Crawford reported that there were two shooters,
Hispanic males who wore black hoodies. But other
than that, he “didn’t tell them nothing.” He did not tell
the officers that he recognized Morales and Gonzalez as
the shooters because he was afraid for his own safety.
Crawford told the officers that his name was “Charles
Vega,” also because of concerns for his safety. He was
taken to an area hospital where he stayed for a few days.
Detectives visited him at the hospital and showed him
a photo array. Crawford picked out Gonzalez’s picture,
identifying him as one of the shooters. Crawford said
that Gonzalez was a Milwaukee King. Crawford did
not tell the detectives that Morales was a shooter;
Crawford explained at trial that he didn’t know Morales’s
name. Crawford arranged to meet with the detectives
after being discharged from the hospital, but he never
did. Instead, he returned to Oklahoma because he was
scared and didn’t want to have anything to do with the
investigation. A few days before trial, Crawford, who
had returned to Chicago under subpoena to testify, identi-
fied Morales in a photographic array. He also identified
Morales in court.
Nevarro testified that he had been a member of the
Satan Disciples but quit three to four years before trial. He
6 No. 10-1696
had known Morales for at least nine years and knew he
was a Milwaukee King nicknamed “Shotgun.” Nevarro
testified that after he and Bradford returned to the
street from Bradford’s house, Crawford was hiding in the
gangway and looked like he had “seen a ghost.” The three
men started working on the car again and Nevarro
heard a noise coming from the alley on the east side of
Willard Court. He turned toward the alley and saw
Morales and Gonzalez with guns. Nevarro also saw a
third man who retreated back into the alley. Nevarro
shouted, “Watch out,” and Morales and Gonzalez began
shooting. Nevarro testified that Morales was shooting a
“big chrome revolver” and Gonzalez had a “black auto-
matic.” Nothing blocked Nevarro’s view as the assailants
came through the alley shooting, and a streetlight was
right in front of Bradford’s house. Nevarro testified
that Morales and Gonzalez wore black hoodies. Nevarro
was shot in the leg; Crawford and Bradford were also
shot. Nevarro testified that right after the shooting, he
looked toward Huron Street and saw a gray “jacked up
kind of car” which he recognized as one he had seen in
the neighborhood every day. He testified that it was
often driven by Gonzalez, Morales, or another Milwaukee
King Nevarro identified as “Adrian.”
At the scene, Nevarro spoke to the officers very briefly,
describing the gray, jacked-up car he had seen. He was
uncooperative with the police, even attempting to walk
away. He didn’t give them either the names or descrip-
tions of the shooters. Nevarro testified that he “wanted
to take care of them [him]self,” meaning that he was
going to go back to his “street ways.” He later realized
No. 10-1696 7
that the “best way to deal with it” was to let the police
handle it. While Nevarro was being treated at the
hospital, two detectives asked him to come down to the
police station and view a line-up. He agreed. Once he
arrived at the station and saw the line-up, which
included Gonzalez, he knew that Gonzalez was in cus-
tody. At that point, he identified Gonzalez as one of
the shooters. Right after that, Nevarro viewed a photo
array and identified Morales as the other shooter.
Katrina, Morales’s friend, testified at trial about her
relationship with Morales and interaction with him
between the date of the shooting and subsequent to his
arrest on November 15, 1994. Katrina had lived in
Chicago and was familiar with the Milwaukee Kings
gang, including one of its members, Shotgun, whom she
identified as Morales. She had been a member of the
Milwaukee Queens for approximately one week three
years before. In October 1994, Katrina was friendly with
Morales and was living with her father in the suburbs.
Katrina testified at trial that Morales was not with her
at all on October 24, 1994.
Katrina further testified that the afternoon of Octo-
ber 28, Morales telephoned her and said, “Katrina, I need
to talk to you. That I need your help. That they were
shooting. The MKs [Milwaukee Kings] are at war with
the SDs [Satan Disciples] and a man got shot.” Morales
said that the “MKs were shooting at the SDs,” he
was there and that he was involved when they were
shooting. He said that he needed to talk to her and she
needed to come over to his sister’s house. Morales told
8 No. 10-1696
Katrina that the police were looking for him and had a
warrant out for his arrest. Katrina testified that Morales
asked her to say that she was with him on October 24
from 6:00 p.m. until 1:00 a.m. the next morning; that she
and her father picked him up at 6:00 p.m., got to her
house at 6:37 p.m., and then dropped him off at 1:00 a.m.
He asked her to tell these things to the police if they
came to talk to her. In addition, she testified that
Morales asked her to say things to the police about their
relationship—that she had been with him for one-and-a-
half years, that she was his girlfriend, and they were
engaged to be married, all of which she testified was
untrue. Katrina also stated that Morales asked her to
describe the way the rooms in her house were arranged
and the color of the furniture for him, and she did so.
According to Katrina’s testimony, on the evening of
October 28, she went to Morales’s sister’s house with her
father. She met with Morales, who essentially repeated
what he told her earlier that day, and she agreed to
help him. He stated that “I was shooting, me and the
gang were shooting.” She said he asked her to say that
she was his girlfriend, his fiancée, or whatever and
would marry him. He asked her to say he was at her
house on the 24th from 6:30 or 7:00 p.m. until 1:00 a.m.
in the morning, and that her dad picked him up and
dropped him off. She stated that he went over the times
that she was supposed to tell the police three times. At
first she told him that she would help him, but was
scared that she would be arrested or go to jail. Morales
assured her that she wouldn’t go to jail as long as she
stuck to the story.
No. 10-1696 9
On November 15, 1994, an assistant state’s attorney and
detective came to Katrina’s home. She spoke with them,
advising that Morales wanted her to lie for him. She
said that she did not lie to them, but told them what
Morales had instructed her to say to the police.
Katrina testified that on November 19, Morales called
her and said that he knew she did not tell the police
what she said she was going to tell them, that is, what he
told her to say. He called her a “bitch” and said he was
mad because she didn’t tell the police what she had
agreed to say. Katrina stated that Morales seemed angry
with her for not telling the police the lie that he had told
her to say. He asked her to place a three-way telephone
call to Ricky, the Chief of the Milwaukee Kings. She called
Ricky’s home. He wasn’t there, so Morales spoke with
Ricky’s grandmother. Katrina heard Morales say that
Ricky had to get in touch with the SDs [Satan Disciples]
to tell Littleman, whom Katrina knew to be Nevarro, not
to sign a statement or sign something against Morales.
Katrina stated that Morales continued to telephone her
several more times and was angry with her for not lying
for him.
The physical evidence collected at the scene of the
shooting tended to support the eyewitness testimony
about the shooting. Officers discovered eight cartridge
cases at the mouth of the alley south of 710 North Wil-
lard. They found two metal bullet fragments on the
sidewalk in front of Bradford’s house and two metal
fragments on the street. The fragments indicated that
two types of ammunition were used: one was soft lead,
10 No. 10-1696
likely from a revolver; the other was copper-jacketed,
“usually from an automatic.” A forensics investigator
testified that based on this evidence, two different
weapons were used in the shooting. An October 24
search of Gonzalez’s apartment led to the recovery of a
loaded .9-millimeter semiautomatic handgun; forensic
testing established that the weapon had fired the dis-
charged cartridge cases found at the mouth of the alley.
The police did not recover any other weapon used in
the shooting.
The jury found Morales guilty of first-degree murder
and two counts of attempted murder. He was sentenced
to a sixty-year prison term for murder, consecutive to
two concurrent thirty-year terms on the attempted
murder convictions.
B. Post-Trial Proceedings
The Illinois appellate court affirmed on direct appeal.
See People v. Morales, No. 1-96-2582, 718 N.E.2d 1088 (Ill.
App. Ct. Nov. 5, 1997) (unpublished table disposition).
Morales’s petition for rehearing was denied. Morales
did not appeal that decision.
On March 27, 1998, Morales filed a state petition for post-
conviction relief, claiming his trial counsel was ineffec-
tive because he failed to properly impeach Katrina’s
testimony and failed to call Thomas Scimone, her father,
as a witness. Morales supported his petition with af-
fidavits from Katrina and Thomas. In her first affidavit,
Katrina stated that she didn’t know and didn’t remember
No. 10-1696 11
whether she was with Morales on October 24, 1994 at the
time of the shooting. She explained that when the police
and state’s attorney first came to her, she was scared
and didn’t know what to say, so she said “no” she
wasn’t with Morales, but in her mind, she “wasn’t sure.”
She also said that Morales asked her to say that she was
with him, but she told him that she could not remem-
ber. In her second affidavit, Katrina stated that prior to
Morales’s trial, his attorney, Robert Callahan, asked her
if she was with Morales on the night of the shooting, and
she said she didn’t know.
Thomas’s affidavit states that he was with Morales
the evening of October 24. Thomas said he picked
Morales up between 5:30 and 6:30 p.m. and stayed
with him at Thomas’s house in Elmwood Park until he
dropped Morales off at 11:00 or 11:30 p.m. Although
Thomas couldn’t remember what car he was driving that
evening, he said it was either a 1985 white Volkswagen
Jetta or 1983 cream Toyota Corolla, both stick shifts.
He stated that he contacted Morales that night “[t]o
purchase cocaine” and once they arrived at his home, he
purchased an “eight ball and cooked it up.” Thomas
also claimed that Morales called him the day after the
shooting and wanted to get together because he was
being accused of murder. Thomas said that he and
Katrina met Morales the next evening, on October 26.
The trial court summarily denied the petition for post-
conviction relief; the Illinois appellate court affirmed. See
People v. Morales, No. 1-98-2749, 760 N.E.2d 1061 (Ill. App.
Ct. Oct. 20, 1999) (unpublished table decision). The ap-
12 No. 10-1696
pellate court held that Katrina’s testimony “was not
critical to a finding of” guilt and that her “corroborating
testimony did not so prejudice defendant that he was
deprived of a fair trial.” It also ruled that trial counsel did
not act unreasonably in not calling Thomas as a witness,
citing “an apparent strategic reason” for not doing
so—Thomas said that at the time of the shooting he was
purchasing cocaine from Morales and “cooking it up.”
Leave to appeal was denied. People v. Morales, No. 88702,
724 N.E.2d 1273 (Ill. Feb. 2, 2000) (unpublished table
decision).
In 2001, Morales filed a successive post-conviction
petition. The petition asserted that the state presented
perjured testimony at trial. It also alleged ineffective
assistance of counsel at trial, on direct appeal, and in post-
conviction proceedings, and that newly discovered evi-
dence established his innocence. In May 2001, the trial
court dismissed the petition as frivolous and without
merit. The state appellate court affirmed. See People v.
Morales, 791 N.E.2d 1122 (Ill. App. Ct. 2003). The court
first decided that Morales had abandoned all but two of
his claims: ineffective assistance of appellate counsel
and actual innocence based on newly discovered evi-
dence. Id. at 1127-28. More specifically, Morales chal-
lenged appellate counsel’s failure to investigate, inter-
view, and call Katrina and Thomas to testify. Id. at 1129
& 1131. The court stated that appellate counsel did not
act unreasonably in not pleading that trial counsel
was ineffective for failing to interview the Scimones
because “[t]rial counsel had no reason to believe in 1996
that Katrina would equivocate in 1998.” Id. at 1131. As
No. 10-1696 13
for Thomas, the court concluded that Morales had not
shown prejudice because there was “no ground for be-
lieving that, had trial counsel . . . presented [Thomas’s]
testimony about ‘cooking up’ cocaine with [Morales] on
the night of the shooting, [Morales] would have been
acquitted because of a credible alibi.” Id. And the court
was not persuaded by the claim of actual innocence,
finding that the affidavits Morales offered to show
his innocence contained inadmissible hearsay, were
unpersuasive, did not contain new, material evidence
as required, and were ultimately not credible. Id. at 1132.
The Illinois Supreme Court denied leave to appeal.
People v. Morales, No. 96569, 803 N.E.2d 494 (Ill. Oct. 7,
2003) (unpublished table decision).
Meanwhile, on May 1, 2000, Morales filed a petition
for writ of habeas corpus in the federal district court.
Counsel was appointed, and an amended petition was
filed. The district court dismissed the amended petition
without prejudice to allow Morales to exhaust his state
court remedies. The matter was later reinstated and, on
July 1, 2004, Morales filed a second amended habeas
petition, alleging that trial counsel was ineffective in
conducting his interview of Katrina, failing to impeach
her with her statement that she did not recall whether
she was with Morales at the time of the shooting, and in
failing to investigate and call Thomas as a witness. The
petition also claimed that Morales was convicted on the
basis of perjured testimony by Katrina. (A third claim
was raised but it is not at issue in this appeal.)
After determining that Morales alleged facts that if
proven would entitle him to relief and that the state
14 No. 10-1696
court post-conviction proceedings denied him a full and
fair hearing to develop a factual basis for his ineffective-
ness claim, through no fault or lack of diligence by Mo-
rales, the district court held an evidentiary hearing and
made findings on the claim. See 28 U.S.C. § 2254(e)(2);
Price v. Thurmer, 637 F.3d 831, 836-37 (7th Cir. 2011). At
the evidentiary hearing, Thomas testified that on the
night of the shooting, he picked up Morales “in my car,”
which he described as a white Volkswagen Jetta, stick-shift
around 6:30 p.m. He said Katrina was with him. Although
Thomas couldn’t recall why he picked up Morales that
night, he claimed it might have been to purchase co-
caine. Thomas testified that Morales didn’t leave the house
until Thomas and Katrina drove him home in “my Volks-
wagen,” around 12:00 a.m. According to Thomas, Morales
called him the day after the shooting and said there had
been a murder and he was being accused of it. (Morales
was not arrested until November 15, however.) Thomas
claimed he picked up Morales that night. Thomas said that
he never contacted the police but talked to Morales’s
attorney, advising him that Morales was with Thomas
the night of the shooting. Thomas stated that the
attorney said that he would contact Thomas if he was
needed as a witness. Thomas also testified that he got
a blue Pontiac 6000 four-door after he sold his
white 1983 Volkswagen Jetta. (As noted, Thomas’s affidavit
referred to a 1985 Volkswagen Jetta and 1983 Toyota
Corolla.)
Morales testified at the hearing that he was at the
Scimones’ house at the time of the shooting. He said
No. 10-1696 15
Thomas had called him because he wanted to purchase
cocaine and that Thomas picked him up in Thomas’s
“own car”—a white, two-door, stick-shift around 6:00
or 6:30 p.m. Morales claimed that Katrina was with
her father. According to Morales, once they arrived at the
Scimones’ house, he sold Thomas an “eight ball” and
helped him “cook it up,” meaning they turned it into
crack cocaine. After that, Morales claimed, he spent the
time hanging out with Katrina and getting high with
Thomas until they took him home around 11:00 or 11:30
p.m. Morales said that he advised his trial attorney
Callahan of his alibi and Callahan said he would investi-
gate it.
Morales’s hearing testimony was essentially con-
sistent with his statements reflected in a police report
made following his arrest. The November 17, 1994, report
indicates that Morales was interviewed and stated that
he was with his girlfriend, Trina Scimone, on the date
of the incident; that she and her father picked him up at
7:00 p.m. and drove him to their home where he
stayed until they took him home at 1:00 a.m. Morales
claimed that Trina’s father drove his older, white stick-
shift vehicle. The report also states that when inter-
viewed, among other things, Katrina said that her father
drove a blue Pontiac 6000 four-door with an automatic
transmission and that she has never seen him drive a
white stick-shift car.
Katrina also testified at the evidentiary hearing. She
initially stated that Morales did not call her and ask her
to say that she was with him on the night of the murder.
16 No. 10-1696
However, she recalled testifying before the grand jury and
at trial that she was not with Morales on the night of the
murder and that he called her and tried to get her to say
she was with him, which wasn’t true. She offered the
explanation that she was “so confused with everything,”
and “scared at the time.” The district court summarized
Katrina’s trial testimony regarding Morales’s October 28
phone call and then asked whether Morales had a conver-
sation like that with her in which he said, “I was there at
the time of the shooting, and I want you to tell the police
that I was with you between 6:00 at night and 1:00 in
the morning?” Katrina answered, “I don’t know if he
said that [he] was there. I don’t remember everything.”
When asked if she and Morales ever had a conversation
like the one about which she testified at trial in which he
said he wanted her to tell the police that he was with her,
Katrina said, “He probably—yes, he did.” She added
that it was “probably because we were together all the
time.” She testified that she could not remember whether
Morales told her that he was there when the shooting
occurred. Katrina said that when she had the phone
conversation in which Morales asked her to say he was
with her, she told him she didn’t remember and did not
say she would tell the police that he was with her. And
later in her testimony, she stated that when Morales
called her and asked her to say that she was with him,
she told him she didn’t remember if she was with
him or not.
Katrina further testified that she told the police Morales
called her and asked her to provide an alibi for him and
No. 10-1696 17
say she was with him on the date of the shooting. She
stated that she told the police she was not with him.
Katrina also stated that Morales asked her to tell the
police that they were engaged to be married; she said
that she was “seeing him” and her friend was “seeing
him, too.” When asked whether they were engaged to
be married, Katrina offered, “Well, we were getting
engaged,” which meant that they had “talked about it.”
Katrina stated that when she first spoke to police and
an assistant state’s attorney on November 15, 1994, she
was scared. The police told her if she didn’t tell the truth
or if she lied for Morales, she would go to jail. She
told them that she was not with Morales at the time of
the shooting. She felt she had to give an answer of “yes”
or “no,” so she just said no. Katrina testified that the
assistant state’s attorney didn’t tell her how to testify, that
is, to answer “yes” or “no.” She explained that she said
“no” because she “wasn’t sure.” No one threatened her
and no one indicated to her what her answer should be.
At the hearing, Katrina could not remember if Morales
told her that he was there when the shooting occurred,
whether she was with him the night of the shooting, or
whether he asked her to describe her house. Katrina
said that Morales’s attorney, Callahan, visited her
more than once before trial and she told him she did not
remember whether she was with Morales on the night
of the shooting.
The district court denied the habeas petition. Morales
v. McCann, No. 00 C 2656, 2010 WL 748203 (N.D. Ill.
Feb. 25, 2010). The court found Katrina to be a “largely
18 No. 10-1696
credible witness.” Id. at *23. It said that she credibly
testified she told Callahan she was unsure whether she
was with Morales at the time of the shooting. The court
did not believe that Katrina gave knowingly false testi-
mony at trial, however. It reasoned that it was likely she
believed she had to give a definitive answer and “it was
more probable that she had not been with [Morales] the
night of the shooting.” Id. The court found that neither the
police nor prosecutors told Katrina what to say at trial,
although they “pushed” her to give a definitive answer.
Id. at *24. In the court’s view, it was significant that
Katrina never disavowed, either at the evidentiary
hearing testimony or in her affidavits, her trial testimony
that Morales asked her to provide an alibi and told her
he was involved in the shooting, even though she no
longer recalled the latter. Id.
The court did not regard Thomas as a “generally
credible witness” and found that the alibi testimony he
and Morales presented was not credible. Id. at *22-23.
Significantly, Thomas testified that he owned, and
was driving, a white, stick-shift Volkswagen Jetta on
the night of the shooting, and Morales attempted to cor-
roborate this point in his hearing testimony and his
post-arrest police statement. But documentary evidence
showed that no such vehicle was registered to Thomas
or his mother (they shared registration of one vehicle)
at that time. The fact that both witnesses testified to the
same set of untrue facts suggested that the alibi was
fabricated. Id. at *23. The court also relied on the fact
that when interviewed by police, Katrina told them
that her father drove a Pontiac, and Thomas testified
No. 10-1696 19
that he sold the Jetta to buy the Pontiac. Id. It further
relied on the inconsistency between Thomas’s testimony
that he and Katrina went to Morales’s home the day
after the shooting and Katrina’s trial testimony that
they did not go see Morales until several days after
the shooting. Id.
The district court also considered the testimony
Morales offered to establish that he was not the sec-
ond shooter. The court believed that Oswaldo Arroyo’s
testimony that Nevarro told him he had not seen the
shooters’ faces and that he falsely implicated Morales
was inadmissible hearsay. The court declined to con-
sider it under Fed. R. Evid. 804(b)(3) because Morales
did not show that Nevarro was unavailable to testify. Id.
at *12. The court found that Desire Aponte’s testimony
identifying Roberto Moncada (her cousin) as the second
shooter was of “dubious credibility”—although Moncada
supposedly confessed to Aponte in 1994 and she began
corresponding with Morales a few years later, “neither
she nor Morales came forward with Moncada’s pur-
ported confession until after his death.” Id. at *26. The
court likewise found “unconvincing” Gonzalez’s testi-
mony that Moncada, not Morales, was the second
shooter. Gonzalez’s explanation for falsely implicating
Morales at the time of his guilty plea was not persua-
sive. Id.
The district court found that Morales procedurally
defaulted his claim that Katrina presented perjured
testimony at trial and decided that this default was not
excused based on his “actual innocence.” Id. at *27-28.
20 No. 10-1696
Even if he could show “actual innocence,” the court
decided that the claim would fail because Morales had
not shown, or even alleged, that the prosecution know-
ingly presented false testimony. Id. at *28. Although
the court found that Callahan’s performance was de-
ficient in several respects, it concluded that Morales
was not prejudiced by Callahan’s actions. Id. at *30-37. It
reasoned that “Morales stood little chance of success
unless he was able to shed doubt on the eyewitness
identifications and Katrina’s testimony that he admitted
being present at the shooting and importuned her to
help him with an alibi,” and he was unable to do that.
Id. at *36. That left the alibi testimony, which the court
found was undermined by the documentary evidence
of the vehicle registration. Id. at *37. Furthermore, the
court found that the impeachment value of Katrina’s
statement that she didn’t know whether she was with
Morales “would have been relatively insignificant” because
she never said she was with Morales on the night of the
shooting and testified that he asked her to support an
alibi and admitted to her that he was at the shooting.
Id. The district court entered judgment in favor of re-
spondent and against Morales. The court issued a cer-
tificate of appealability on the claims of ineffective assis-
tance relating to Katrina and Thomas and the perjured
testimony. Morales appealed.
II. Analysis
Morales contends that his trial counsel was ineffective
in investigating Katrina, in failing to impeach her state-
No. 10-1696 21
ment that she was not with Morales on the night of the
shooting, and in failing to interview and call Thomas
as an alibi witness. Morales also contends that he was
convicted on the basis of Katrina’s perjured testimony
that she was not with him that night.
A. Standard of Review
We review the district court’s decision to deny
Morales’s habeas petition de novo and review its factual
findings for clear error. Kerr v. Thurmer, 639 F.3d 315, 318
(7th Cir. 2011), petition for cert. filed, 80 U.S.L.W. 3004
(U.S. June 23, 2011) (No. 10-1557). When a state court
rules on the merits of a habeas claim, our review is
limited by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2254(d);
Harrington v. Richter, 131 S. Ct. 770, 780 (2011). Under
AEDPA, we may grant relief only if the state court’s
decision on the merits “was contrary to or an unrea-
sonable application of clearly established Supreme
Court precedent, or if it was based on an unreasonable
determination of the facts in light of the evidence.” Kerr,
639 F.3d at 318 (citing 28 U.S.C. § 2254(d)(1) & (2)). When
“no state court has squarely addressed the merits” of
a habeas claim, however, we review the claim under the
pre-AEDPA standard of 28 U.S.C. § 2243, under which
we “ ‘dispose of the matter as law and justice re-
quire.’ ” Id. at 326 (quoting § 2243). This is “a more gener-
ous standard,” George v. Smith, 586 F.3d 479, 484 (7th
Cir. 2009): “we review the petitioner’s constitutional
claim with deference to the state court, but ultimately
22 No. 10-1696
de novo,” Kerr, 639 F.3d at 326 (citing Harrington, 131 S. Ct.
at 788 (“Even under de novo review, the standard for
judging counsel’s representation is a most deferential
one.”)).
B. Strickland Claim
We first address Morales’s ineffective assistance of
counsel claim. The clearly established Supreme Court
precedent for ineffective assistance of counsel claims is
set forth in Strickland v. Washington, 466 U.S. 668 (1984).
To establish ineffective assistance of counsel, Morales
has to show both “that counsel’s performance was defi-
cient” and “that the deficient performance prejudiced
the defense.” Strickland, 466 U.S. at 687. The second prong
requires a showing “that there is a reasonable proba-
bility that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id.
at 694. This requires “a probability sufficient to under-
mine confidence in the outcome,” id., and means a “sub-
stantial, not just conceivable” likelihood of a different
result, Harrington, 131 S. Ct. at 791-92. We need not
address both prongs of the Strickland analysis. See Strick-
land, 466 U.S. at 697. “If it is easier to dispose of [the]
claim on the ground of lack of sufficient prejudice, . . .
that course should be followed.” Id.; see also Freeman v.
Chandler, 645 F.3d 863, 869-70 (7th Cir. 2011) (declining to
address Strickland’s first prong where it was “legally
murky and involved” and proceeding to the second
prong). Prejudice is the only prong that we need to
address in this appeal.
No. 10-1696 23
As the district court found, no state court had “assessed
the combined prejudice resulting from Callahan’s unrea-
sonable performance vis-à-vis Katrina and Thomas
Scimone.” Morales, 2010 WL 748203, at *36. Because no
state court “fully considered” the prejudice prong of
the ineffective assistance claim, we apply the pre-
AEDPA standard of review. See Wiggins v. Smith, 539 U.S.
510, 534 (2003) (“[O]ur review is not circumscribed by
a state court conclusion with respect to prejudice, as
neither of the state courts below reached this prong of
the Strickland analysis.”); George, 586 F.3d at 485 (“[W]e
hesitate to apply a stricter standard of review without
a clearer indication that Wisconsin fully considered [peti-
tioner’s] claim on the merits.”). Regardless of the
standard of review, this claim fails.
The district court correctly determined that Callahan’s
deficient performance with respect to Katrina and
Thomas, even when considered in totality, did not cause
Morales prejudice. Morales has not shown a reasonable
probability that, but for Callahan’s unprofessional errors,
the result of the trial would have been different. The
eyewitness testimony from victims Crawford and
Nevarro was substantial evidence against Morales. To
be sure, eyewitness testimony is not always reliable, see,
e.g., Newsome v. McCabe, 319 F.3d 301, 305 (7th Cir. 2003)
(“Most persons have difficulty remembering or de-
scribing the features of strangers.”); Wright v. Gramley,
125 F.3d 1038, 1043 n.4 (7th Cir. 1997) (citing cases
noting that eyewitnesses often give unreliable testi-
mony), and Crawford and Nevarro were not choir boys.
24 No. 10-1696
However, the factors weighing against their credibility
were laid out at trial—e.g., their lack of initial coopera-
tion with authorities, Nevarro’s prior drug convictions
(not surprising since he once was a gang member), and
Crawford’s failure to identify Morales until one-and-a-
half years after the shooting. To claim that Crawford
and Nevarro were members of a rival gang, as Morales
does, overstates the record. Crawford left the gang
around 1981; Nevarro left approximately two years
before the shooting. Even though Nevarro initially
planned to take the matter into his own hands (Morales
had just killed his girlfriend’s father), Nevarro ultimately
decided to cooperate with authorities. Morales’s letter
to the trial judge (not an affidavit or sworn declaration)
stating in conclusory fashion that Nevarro was behind
several stabbings of Morales while the latter was incar-
cerated was not reliable. Morales fails to point to
anything in the record to substantiate his claim that
Nevarro “has long wanted Morales dead at any cost.”
While neither Crawford nor Nevarro identified Morales
at the scene or initially cooperated with police, the
record provides their reasons for doing so. See Toliver v.
Hulick, 470 F.3d 1204, 1209 (7th Cir. 2006) (concluding that
witness’s testimony was not weak where his failure to
cooperate with police initially was explained—“he was
frightened”). Each of them eventually overcame his fear
or desire for revenge and cooperated with authorities.
In reply, Morales questions why Crawford’s fear did not
prevent him from “immediately” identifying Gonzalez
as a gunman, but caused him to hesitate as to Morales.
Crawford did not “immediately” identify Gonzalez.
No. 10-1696 25
More to the point, Crawford’s trial testimony explains
why: He didn’t know Morales’s name.
Morales argues that the district court erred in believing
that the jury found Crawford’s and Nevarro’s testimony
sufficient to convict him. He cites a few cases to sup-
port his claim of prejudice, but the eyewitness identifica-
tions in those cases were made in circumstances that
rendered the testimony quite vulnerable to attack: the
witnesses had only a “momentary glimpse” or brief
viewing of the assailant(s), the lighting was dimmed,
and/or the witnesses were unfamiliar with the assail-
ant(s). See Malone v. Walls, 538 F.3d 744, 759, 760, 762
(7th Cir. 2008) (eyewitness was a current member of
a rival gang, yet didn’t immediately identify the
defendant as the shooter or claim he was present; he
first described the shooter as light-complected, but later
identified the defendant, who was dark-complected, as
the shooter; and the witness’s contemporaneous ut-
terances suggested that someone other than the de-
fendant was the shooter); U.S. ex rel. Hampton v. Leibach,
347 F.3d 219, 250, 253 (7th Cir. 2003) (the case against
the defendant “depended entirely on” the eyewitness
identifications; none of the eyewitnesses knew the de-
fendant or had more than a “momentary glimpse” of the
assailant; the eyewitnesses were victims of a chaotic
attack by a large group of people; the light was dimmed;
and the witnesses did not provide a physical description
of the assailant, but only later identified defendant in a
line-up); Wright, 125 F.3d at 1042-43 (eyewitnesses to
attack gave a radically different physical description of
the assailant and one eyewitnesses saw assailant only
briefly).
26 No. 10-1696
In contrast, Crawford and Nevarro had ample oppor-
tunity to observe Morales at the time of the shooting.
They were familiar with him: Crawford had seen
Morales on several other occasions, and Nevarro had
known Morales for approximately nine years. Cf. United
States v. Bartlett, 567 F.3d 901, 906 (7th Cir. 2009) (“The
social-science studies [showing high error rates in the
identification of strangers] do not suggest that people
who have known one another for weeks or years are apt
to err when identifying them in court.”). Although the
shooting was at night, a streetlight was directly above
the men as they worked on Bradford’s car, and the
lighting in front of Bradford’s house was described
as “excellent.” Nothing blocked either Crawford’s or
Nevarro’s view. Crawford looked “straight at” Morales
at the time of the shooting. Both Crawford and Nevarro
gave consistent descriptions of the shooting, including
what happened and what the shooters were wearing.
And it bears emphasizing the obvious: The prosecutor
presented eyewitness testimony from not just one, but
two eyewitnesses. Each witness’s identification of Morales
as the shooter corroborated the other’s testimony. Cf. id.
at 907 (noting that the studies showing high error rates
in eyewitness identifications concern “identification by
single eyewitnesses, not the probability of error when
multiple witnesses identify the same person.”).
Furthermore, physical evidence supports their testi-
mony that there were two shooters and their different
descriptions of the type of weapons used. It is true that
the physical evidence does not corroborate their iden-
tification of Morales as one of the shooters. But the cor-
No. 10-1696 27
roboration of other aspects of their testimony may be
viewed as lending support to their overall credibility.
And the state court’s factual finding that “the physical
evidence supported the eyewitness testimony” is entitled
to deference. See 28 U.S.C. § 2254(e)(1); Wiggins, 539 U.S.
at 530. Moreover, Dorothy Bradford’s testimony lends
some further support to their testimony that Morales
was one of the shooters. She testified at trial that right
after the shooting, she saw the same gray primer car
driving on a nearby street that she had seen driving
around the neighborhood “for weeks” and she identified
Gonzales and Morales as the usual drivers. And there
was no credible testimony identifying or describing the
second shooter as someone other than Morales.
The two eyewitness identifications were substantial
evidence against Morales and negated any possibility of
Strickland prejudice from Callahan’s errors respecting
Katrina and Thomas. See, e.g., Allen v. Chandler, 555 F.3d
596, 602 (7th Cir. 2009) (holding state court did not unrea-
sonably apply Strickland in concluding that petitioner
was not prejudiced by counsel’s elicitation of his post-
arrest silence where there was reliable and strong single-
witness identification of defendant at trial—store clerk
observed the robber at close range, identified him
without hesitation in photo array and at trial, and identi-
fied him as a frequent store customer, and surveillance
video corroborated her account of the robbery). The
record reveals that Crawford and Nevarro had sufficient
opportunity to view Morales and they were paying at-
tention to him during the shooting. In addition, Morales
28 No. 10-1696
was no stranger to them; they knew him by name or
sight. As Morales acknowledges, Callahan attempted to
discredit Crawford’s and Nevarro’s testimony. And
although their testimony was strong proof of Morales’s
guilt, it was not the only evidence.
Katrina testified that a few days after the shooting,
Morales called her and asked her to help him out; he
told her that they were shooting and a man got shot.
She stated that Morales said that he was there and in-
volved in the shooting. He told her the police were
looking for him and had a warrant for his arrest. Morales
wanted her to say that he was with her that night and
told her what to say. He asked her to describe her house
for him, which she did, and asked her to tell the police
that they were engaged, which wasn’t the truth. Katrina
stated that she went to see Morales later that same day
and he admitted that he and the gang were shooting
and asked her to say he was with her at her house that
night. He even went over the times she was supposed
to repeat to the police three times and assured her that
she wouldn’t go to jail as long as she stuck to the story.
Furthermore, Katrina testified that a few weeks later
Morales called her, said he knew she did not tell the
police what he asked her to say, called her a bitch, and
was angry because she hadn’t lied for him.
Morales argues that Katrina’s testimony on collateral
review undermines all incriminating testimony she pro-
vided at trial. Not so. The district court conducted an
evidentiary hearing and had the opportunity to judge
Katrina’s credibility while testifying. The record does
No. 10-1696 29
not suggest that her trial testimony—other than
whether she was with Morales that night—was anything
but honest and accurate. Morales asserts that Katrina’s
hearing testimony shows she did not actually believe
that the proffered alibi was false. Not true. She simply
does not know whether the suggested alibi is false or
not, and testified, credibly according to the district
court, that she cannot recall whether Morales was with
her on the night of the shooting. That Katrina no longer
could recall at the evidentiary hearing whether Morales
called her and said that he was there at the shooting
and asked her to give him an alibi would not be likely
to cause a reasonable person to doubt her trial testi-
mony that he did so. More than twelve years had passed
since the events in question took place. Morales
argues that Katrina retained no memory of whether he
actually confessed to her or whether this testimony was
the product of fear. Yet, as the district court found,
she “did not back off from her trial testimony” that Mo-
rales told her he was there when the shooting took
place. And Katrina did not testify that her trial testimony
regarding Morales’s confession was because of fear
or other pressure.
We reject Morales’s argument that Katrina’s uncertainty
as to whether she was with Morales on the night of the
shooting should have precluded her from credibly
stating at trial that he confessed to her. The two are not
mutually exclusive. Morales posits: “If [he] was with her,
he was not committing the crime of which he stands
convicted, and was therefore incapable of confessing to
it.” That would be true if he was with her. But Katrina
30 No. 10-1696
does not know whether Morales was with her. It does
not follow from the fact that she cannot recall whether
he was with her that he was with her that night. Katrina
further testified that Morales probably called her and
asked her to tell the police that he was with her. Addi-
tionally, Morales presses no real attack on her trial testi-
mony that he called her from jail a few weeks after the
shooting and was angry with her because she hadn’t
lied for him.
Morales maintains that Katrina’s testimony about his
alleged confession and efforts to get her to provide an
alibi was the centerpiece of the prosecution’s case. Her
testimony was indeed important, and the prosecution
emphasized its importance in its closing and rebuttal
arguments. Nonetheless, Morales overstates its im-
portance in light of the substantial eyewitness testi-
mony of Crawford and Nevarro that identifies Morales
as one of the shooters.
As for Morales’s alibi, the district court held an eviden-
tiary hearing, observed Morales’s and Thomas’s
demeanors, and concluded that their alibi testimony
was not credible. This determination is a factual finding
to which we accord great deference and “must not be
set aside unless clearly erroneous.” Fed. R. Civ. P. 52(a)(6);
see also Williams v. Lemmon, 557 F.3d 534, 540 (7th Cir.
2009) (stating that “a court of appeals respects a credi-
bility finding unless the judge has taken a view incon-
sistent with the laws of physics or with uncontradicted
documentary evidence”). The district court wrote that
both Morales and Thomas “tied the alibi to the claim
No. 10-1696 31
that Thomas was driving a white Volkswagen Jetta at the
time ([and] that is also what Morales had told the police
after his arrest in 1994).” Morales, 2010 WL 748203, at *23.
At the evidentiary hearing, Morales did not specifically
refer to a Volkswagen Jetta, but did say Thomas drove
a white, two-door, stick-shift, which was consistent
with what he told police after his arrest. [SA73.] This
description was consistent with Thomas’s testimony
that he drove a white, stick-shift Jetta. Yet the docu-
mentary evidence from the Illinois Secretary of State
reflects that no Jetta was registered to Thomas (or his
mother). A Pontiac was registered to him instead, which
was consistent with Katrina’s testimony. In addition,
Thomas testified at the evidentiary hearing that he sold
his Jetta to buy a Pontiac; records show that he ob-
tained the Pontiac at the latest in January 1994, well
before the October shooting. It seems that in his state-
ment to police, Morales described Thomas’s previous
vehicle.
Morales argues that the district court’s credibility
determination hinged only on the fact that he and
Thomas testified to the same, non-credible, minor detail
of the alibi. It is not insignificant that Thomas repeatedly
claimed that he drove Morales in “my” car, see, e.g.,
(“I picked him up in my car. I had a little Volkswagen.”),
(“I drove him back in my Volkswagen”)—not someone
else’s vehicle. Thomas should have known what car he
had at the time of the shooting, even if Morales didn’t.
Yet the fact that they testified to the same, non-credible
detail was just one basis for the district court’s credi-
32 No. 10-1696
bility finding. The court explained that its judgments re-
garding the credibility of testifying witnesses were “based
on their demeanor, . . . the reasonableness of their testi-
mony in light of the other evidence, any inconsistencies,
and other factors appropriately considered.” Morales,
2010 WL 748203, at *21. In addition, the court wrote,
albeit specifically in reference to Thomas’s story that he
talked to Morales’s lawyer on the phone the day of trial,
that “having seen and heard Thomas testify, the Court
did not regard him as a generally credible witness.” Id.
The court also said that it “did not find Thomas’ testi-
mony [about going to Morales’s home the day after the
shooting] credible.” Id. at *23. It is reasonably clear that
the court did not find Thomas to be a credible witness
overall. Thus, its finding that the alibi testimony was not
credible was not based solely on the fact that Morales
and Thomas testified to a non-credible, minor detail of
the alibi. We owe a great amount of deference to the
district court’s “opportunity to judge the witnesses’
credibility.” Fed. R. Civ. P. 52(a)(6). Given the record
before us and the deference owed to the credibility
finding, Morales cannot show that the court clearly
erred in determining that the alibi testimony was not
credible.
In sum, Crawford and Nevarro provided direct evi-
dence of Morales’s—a person known to them—guilt. The
wife of one of the victims also spotted the gray primer
painted car nearby, a vehicle with which Morales had
been associated. And his gang affiliation conformed with
the facts surrounding the shooting. Even if Katrina’s
testimony that she was not with Morales on the night of
No. 10-1696 33
the shooting had been impeached by her statement that
she could not recall if she was with him, the impeach-
ment value was slight given the remainder of her trial
testimony. Her lack of recollection as to whether she was
with Morales that night did not discredit her testimony
that he admitted to her that he was there and shooting
and asked her to provide him an alibi. And the district
court found that the alibi testimony offered by Morales
and Thomas was not believable. Morales has not shown
a reasonable probability that but for Callahan’s errors as
to Katrina and Thomas the result of his trial would
have been different.
C. Perjured Testimony Claim
Morales concedes that he procedurally defaulted
his claim that he was convicted on the prosecution’s
knowing use of perjured testimony. He maintains, how-
ever, that his default should be excused to avoid a “funda-
mental miscarriage of justice.” See Coleman v. Thompson,
501 U.S. 722, 750 (1991); Coleman v. Hardy, 628 F.3d 314,
318 (7th Cir. 2010). He argues that his default may be
excused because of his claim of actual innocence. Schlup
v. Delo, 513 U.S. 298, 314-15 (1995); Hardy, 628 F.3d at
318. To obtain relief, Morales “must show that ‘in light
of new evidence, it is more likely than not that no rea-
sonable juror would find him guilty beyond a reasonable
doubt.’ ” Hardy, 628 F.3d at 319 (quoting House v. Bell,
547 U.S. 518, 537 (2006)). This standard requires a stronger
showing than that required to establish Strickland preju-
dice. House, 547 U.S. at 571 (Roberts, C.J., concurring in
34 No. 10-1696
part and dissenting in part); Schlup, 513 U.S. at 327-29.
Morales “must support the innocence claim ‘with new
reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical
physical evidence—that was not presented at trial.’ ”
Hardy, 628 F.3d at 319 (quoting Schlup, 513 U.S. at 324).
We “consider all the evidence, old and new, and based
on this total record, make a ‘probabilistic determination
about what reasonable, properly instructed jurors would
do.’ ” Id. (quoting House, 547 U.S. at 538). We review
de novo the district court’s determination that Morales’s
procedural default should not be excused. See Holmes
v. Hardy, 608 F.3d 963, 967 (7th Cir. 2010).
Morales first offers the alibi evidence from Thomas. The
district court, having heard and seen Thomas testify,
found that he was not a generally credible witness. The
court specifically found that his alibi testimony was not
credible, in part because he and Morales tied the alibi to
the claim that Thomas was driving a white Volkswagen
Jetta at the time, and their claim was undercut by the
documentary evidence which showed no such vehicle
registered to Thomas or his mother. Their claim was
also undercut by Katrina’s statements when inter-
viewed by police after the shooting that Thomas drove
a Pontiac. The district court reasoned: “The fact that both
Morales and Thomas testified to the same, non-credible
particulars of the alibi story tends to suggest that the
alibi was fabricated.” Morales, 2010 WL 748203, at *23. The
district court further found that Thomas testified that
he and Katrina went to Morales’s home the day after
the shooting, which was contrary to Katrina’s trial testi-
No. 10-1696 35
mony. The district court did not find this testimony
credible either.
Morales also offers evidence from Katrina that she did
not recall in 1994 and cannot recall now whether she
was with him on the night of the shooting. As the
district court correctly observed, Katrina has never said
that she was with Morales on the night of the shooting.
Nor has she ever disavowed her trial testimony that
he admitted to having been present at the shooting and
asked her to provide an alibi for him.
Other evidence, from Melvin Boyd, Albert Guerra,
Oswaldo Arroyo, Gonzalez, and Desire Aponte, is of-
fered to suggest that Nevarro planned to frame Morales
and that Robert Moncada was the second gunmen. But
the district court found that the affidavits and testimony
offered to establish these facts were not credible or con-
vincing. See, e.g., Morales, 2010 WL 748203, at *26 (charac-
terizing Aponte’s testimony naming Moncada as the
second shooter as “of dubious credibility” and Gonzalez’s
testimony at the hearing identifying Moncada as the
second shooter as “unconvincing”); id. at *27 (“The evi-
dence that eyewitness Nevarro told others that he
falsely implicated Morales all came from convicted
felons and is thus of suspect credibility.”); id. at *28 (con-
cluding that Gonzalez’s hearing testimony that Morales
was not involved “lack[s] credibility” and the fact that
the Moncada evidence “was never brought forward
until after Moncada was known to be dead . . . makes its
believability suspect”). It has been said that such “11th
hour” affidavits produced with “no reasonable explana-
36 No. 10-1696
tion” for a long delay are suspect. Herrera v. Collins,
506 U.S. 390, 423 (1993) (O’Connor, J., concurring). Also,
convicted felons have diminished credibility. See, e.g.,
Taylor v. United States, 287 F.3d 658, 662 (7th Cir. 2002)
(explaining that risks of testifying include certainty of
impeachment with prior convictions). Furthermore, the
evidence offered to establish that Moncada was the
second shooter was inherently suspect, submitted only
after it was known that Moncada was dead—even
though at least some of the witnesses gained their
alleged knowledge before he passed away. And the
district court considered Gonzalez’s testimony, finding
it lacking in credibility, based, among other things, on
his admission under oath at his guilty plea hearing
that Morales was the second shooter. The district court
was entitled to disbelieve Gonzalez’s recantation in light
of his earlier testimony. See Mendiola v. Schomig, 224
F.3d 589, 593 (7th Cir. 2000) (“Disbelief of recantations
is sensible.”).
The new evidence fails to outweigh the other evidence
pointing to Morales’s guilt. Two eyewitnesses, Crawford
and Nevarro, identified Morales as one of the shooters.
They knew Morales; they had sufficient opportunity to
observe him; and they were paying attention to him.
Morales tried to impeach their credibility, but he of-
fered nothing to undercut their identifications. True, the
district court relied on codefendant Gonzalez’s testi-
mony at his plea hearing identifying Morales as his
accomplice, and such testimony should be considered
with care. But Gonzalez’s statements are corroborated by
Nevarro’s eyewitness testimony and other credible evi-
No. 10-1696 37
dence. Morales has not offered any statement from
Nevarro recanting his trial testimony. Nor has Morales
demonstrated that in light of the new evidence it is
more likely than not that no reasonable juror would
have found him guilty beyond a reasonable doubt. He
therefore has not satisfied the gateway standard. See
House, 547 U.S. at 538; Schlup, 513 U.S. at 327.
But even if Morales’s evidence allowed him to pass
through the gateway, his claim that the prosecution
knowingly offered perjured testimony from Katrina
would fail. A conviction obtained through the knowing
use of false testimony violates due process. Napue v.
Illinois, 360 U.S. 264, 269 (1959). To obtain a new trial, a
petitioner must establish that: (1) there was false testi-
mony; (2) the prosecution knew or should have known
it was false; and (3) there is a likelihood that the false
testimony affected the judgment of the jury. United States
v. Freeman, No. 09-4043, 2011 WL 2417091, at *3 (7th
Cir. June 17, 2011). Morales cannot sustain his burden.
At the evidentiary hearing, Katrina testified that she
could not recall at that time or at the time of the trial
whether she was with Morales on the night of the shoot-
ing. Morales argues that the prosecution must have been
aware that Katrina’s fear caused her to testify contrary
to her actual knowledge. He points to her testi-
mony that at her first meeting with authorities, “some
woman detective was yelling and telling” her that
she could go to jail if she lied for Morales and that the
authorities searched the whole apartment. This scared
Katrina, who was just out of high school. Morales suggests
38 No. 10-1696
that Katrina understood the statement to her together
with the search of her apartment “to require that she
resolve doubts in her memory in favor of cooperating with
the state.” It is true that she could go to jail if she lied for
Morales. But Katrina further testified that the assistant
state’s attorney did not tell her how to testify (didn’t tell
her to say “yes” or “no”) and never told her to lie. Katrina
stated that the assistant state’s attorney simply told her
she had to answer the question “yes” or “no,” and no one
threatened her or made any statement to her that she
“considered intimidating about how [she] should tes-
tify.” Morales suggests that the state should have
known that its investigative tactics would result
in Katrina giving testimony less favorable to him than
she otherwise might. But there is no evidence in the
record to support this assertion. He has not shown
that the prosecution had any reason to believe that
Katrina was not telling the truth when she said and
later testified that she was not with him on the night of
the shooting.
While Katrina’s trial testimony that she was not
with Morales was important, Morales ignores her other
damaging testimony: After the murder, he called her
and asked her to say she was with him; explained what
happened—“we were shooting”—and that he was there
and involved; and asked her to describe her new house
in the suburbs, presumably so he could credibly
describe it to the authorities if asked. She stated that
Morales later repeated that he was there and shooting
and repeatedly asked her to provide an alibi. She said
that after his arrest, he contacted her several times, ex-
No. 10-1696 39
pressing his anger with her for not saying what he
wanted her to say and not lying for him. Morales also
ignores the substantial eyewitness testimony identifying
him as the shooter. He has not shown a likelihood
that Katrina’s testimony that she was not with him at
the time of the shooting, even if false, affected the jury’s
judgment.
III. Conclusion
The determination that Morales was not prejudiced
by his counsel’s deficient performance at trial was not
an unreasonable application of Strickland, and Morales
has not shown that the prosecution knowingly used
false testimony at trial. Nor has he shown that such
testimony could have affected the jury’s verdict. We
therefore A FFIRM the district court’s judgment.
9-20-11