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UNITED STATES EX REL. SCHLAGER v. WASHINGTON

May 1, 1995

UNITED STATES OF AMERICA ex rel. SEYMORE SCHLAGER, Petitioner,
v.
ODIE WASHINGTON, Respondent.



The opinion of the court was delivered by: RUBEN CASTILLO

 Petitioner Seymore Schlager ("Schlager") petitions for a Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254. Schlager contends that he was denied effective assistance of counsel at trial when his defense counsel (1) failed to fulfill promises made in opening statement; and (2) chose not to pursue a "confusional arousal" defense. Schlager was convicted by a jury in the Circuit Court of Lake County, Illinois, for the attempted murder of his wife and was sentenced to 13 years in prison. For the reasons set forth below, Schlager's Petition for a Writ of Habeas Corpus is denied.

 BACKGROUND

 A. Facts1

 Next, Schlager left the bedroom and Diane fell back to sleep. She awoke again to find Schlager in the living room, at which time she asked if there was anything wrong. He told her to go back to bed, and she did. Schlager returned to the bedroom and began crying and saying that he was depressed. (R. 470) Diane suggested that they call a hospital or a psychiatrist. Id. Schlager stated that he could handle it himself. Still crying, he climbed on top of Diane holding her down with his weight and said that he was having a nervous breakdown. Diane attempted to console him, but he rolled off of her and told her not to touch him; she then fell back to sleep.

 At about 4:00 a.m., she awoke again to find Schlager sitting at the edge of the bed. This time, however, he reached to the floor, clutched the plastic-covered pillow, leaped onto his wife, who had been lying on her back, and began to smother her with the pillow. (R. 479) Diane struggled and managed to turn onto her stomach, but Schlager then pushed her face down into the mattress, reached around and clamped her nose shut with his fingers. They struggled for approximately three to four minutes until Schlager fell off of her. She screamed for her children to call 911. Schlager, standing at the side of the bed, then exclaimed, "What am I doing? What am I doing? You're my wife. I love you." Schlager, 617 N.E.2d at 1277.

 Regardless, Diane then ran past him to the foyer to open the front door in an attempt to trigger the security alarm, but Schlager quickly deactivated the alarm system with the proper code. He repeatedly told Diane, "Don't call, don't call." She ordered him out of the house, but he refused. Id. She then proceeded to the kitchen, brandished a knife, and ordered him to remain seated in the family room until the police arrived, which they did and he was arrested.

 B. Trial

 At trial, Schlager's defense counsel, Terence P. Gillespie, ("Gillespie") *fn2" attempted to place Schlager's actions in the context of his demanding career and the stress of ending his affair with a 24 year-old co-worker named Melinda. He also stated that Schlager had been experiencing sleep dysfunction and violent dreams related to his use of a drug called Calan S.R., which Schlager self-prescribed to treat his hypertension and stress. *fn3" During a portion of his opening statement, Gillespie stated:

 
Basically what he (Judge Tonigan) told you, [opening statements are] the framework, what the lawyers believe the evidence in this case will be. And he also gave you admonitions about opening statements. He told you that it is not evidence in the case. I'll remind of you [sic] that. What I say to you here isn't evidence. (R. 369).
 
* * *
 
And you're going to hear come into this courtroom an expert who is going to come up here and talk to you about Calan and talk to you about what this drug, which is a relatively new drug on the market, talk to you about the side effects of it.
 
The doctor is going to tell you, Dr. Ehrenpreis, one of the foremost experts in the field of pharmacology in the country, if not the world, he's going to tell you that this drug Calan causes very, very severe problems in the area of sleep, very severe sleep dysfunctions, insomnia, violent terrible dreams. He is going to show you documentation in the literature about these violent, terrible dreams that people can suffer as a side effect from Calan.
 
Sy (referring to Schlager) is going to tell you, when he comes up to our case and he gets on the witness stand, he is going to tell you that he was suffering from violent, terrible dreams.

 Id. at 377-378. Thereafter, Gillespie discussed other sources of stress in Schlager's life and concluded by stating that Schlager had always been a good provider for his family. Gillespie argued that the accumulation of stress in Schlager's life caused him to suffer a nervous breakdown on the night of the attack. Thus, Gillespie asserted, Schlager could not have intentionally attempted to murder his wife.

 The State called Diane Schlager to testify and she gave a vivid account of the events on the night of the attack. She also told of an incident where Schlager lied about a missing five-carat cubic zirconium ("CZ") ring, which he had given to Melinda. *fn4" (R. 502-504) Apparently to establish motive, the State presented an audio cassette tape that Schlager made for his children after the attack in which he discusses his relationship with Melinda. Schlager also mentioned that he lied to Melinda when he told her that he could not divorce his wife, and marry her, because his wife was suffering from Hodgkin's disease.

 After the State rested, Gillespie and Schlager chose not to offer a defense because they felt confident that the State had failed to prove its case beyond a reasonable doubt. Nonetheless, the trial judge, Judge Tonigan, had the following colloquy with Gillespie and Schlager:

 
THE COURT: Mr. Schlager, I want to put something on the record and I'm not directing this to Mr. Schlager. Mr. Gillespie, it was indicated to me at the conclusion of evidence that's been borne that you were going to have a conference with your client in terms of how to proceed in the case, is that correct?
 
MR. GILLESPIE: That's correct, your Honor. We did spend a great deal of time and preparation for this trial with the possibility of Mr. Schlager testifying. That was our plan. We listened to the prosecution's case. When they rested, we then discussed over two hours I think you gave us for lunch yesterday, whether or not we were going to proceed or put the prosecution to their proof and we decided that -- Mr. Schlager was actively involved in that decision making process -- that we would rest our case and put the prosecution to its proof.
 
THE COURT: He hasn't indicated any dissatisfaction with that ...

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