professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." . . .
. . .
Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
Strickland v Washington, 466 U.S. 668, 690-91, 104 S Ct 2052, 2065-66, 80 L. Ed. 2d 674 (1984). Petitioner has not overcome the strong presumption that his trial counsel performed competently.
From the evidence at trial, it is apparent that it would have been futile for trial counsel to attempt any defense based on a failure of the State to prove beyond a reasonable doubt that petitioner killed Neal or that petitioner did not act with the requisite mental element. It was certainly well within the wide range of professional reasonableness for trial counsel to have believed that petitioner had a better chance of convincing a judge that he was entitled to voluntary manslaughter instructions and of convincing a jury that the offense should be voluntary manslaughter rather than murder. Petitioner challenges the reasonableness of trial counsel's conduct on the basis that the legal theory advanced was not viable under Illinois law.
It was reasonable for trial counsel to believe the theory was a viable one under Illinois law. The theory was that, even though petitioner and Neal were not married, their relationship was sufficiently analogous to that of a married couple to make the spousal-adultery form of strong provocation applicable. The Illinois Appellate Court agreed, unanimously on this point, reversing and remanding for a new trial in which an instruction on that form of voluntary manslaughter would be given. People v McCarthy, 181 Ill App 3d 208, 536 N.E.2d 917, 129 Ill. Dec. 867, 868-70 (1989). The Illinois Supreme Court left open the question of whether such an instruction should only be given where the couple involved were married; deciding that even if such a theory is available where the couple were unmarried under Illinois law, it would not be applicable to petitioner's case because the relationship between petitioner and Neal had ended making the situation analogous to that of a divorced couple. People v McCarthy, 132 Ill 2d 331, 547 NE2d 459, 462-64, 138 Ill. Dec. 292 (1989).
That the Illinois Supreme Court ultimately decided that the situation was analogous to a couple after a divorce rather than to a couple still married but having difficulties does not make trial counsel's decision to argue the theory unreasonable. Under the circumstances, with the other possible defenses suggested by petitioner so weak as to be nearly nonexistent, trial counsel's choice of strategy was well within the bounds of reasonably effective assistance. Therefore, petitioner is not entitled to have a writ of habeas corpus granted on the basis that he received ineffective assistance of counsel at trial.
ORDERED: that portion of respondent's "Answer and Motion to Deny Petition" constituting a motion to deny the petition and respondent's "Memorandum of Law in Support of Motion to Deny Petition" are stricken by the court, sua sponte. The petition for writ of habeas corpus is denied.
George W. Lindberg
United States District Judge
Date: SEP 29 1992
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