for relief part from those indicated in (2) and (3).
The state urged dismissal of the original petition without prejudice,
noted that the Illinois Appellate Court had ruled that the Illinois
Circuit Court's dismissal of the inconsistent verdicts claim on state
postconviction collateral review was proper, but it reversed the lower
court's dismissal of the consecutive sentences claim. The state wanted me
to give Mr. Cathey a chance to exhaust that claim, and I did.
Mr. Cathey now files an amended petition. In it, he restates his three
grounds, recounts the above history, but says that "the issue of
inconsistent verdict . . . is the basis of [petitioner's] habeas corpus
petition," and asks for "leave to amend his habeas corpus petition p.s.
[sic] Ground two, petitioner was denied effective assistance of
counsel . . . [by failure of counsel] to raise the issue of legally
inconsistent verdicts." He asks for counsel to "further represent
petitioner's claim." (I denied the motion for appointment of counsel.)
There is some unclarity here as to what Mr. Cathey means: he offers
three (really two) claims, one exhausted and one not, and suggests that
the state's "statement [that it would be inappropriate to presume that
petitioner intended only to raise the inconsistent verdicts claim] can
be supported by petitioners' petition." But then, as noted, he twice
expressly says that he means to proceed on the grounds of the
inconsistent verdicts claim alone, and he asked for appointed counsel
to represent his "claim" [singular]. Obviously he is not a legal
scholar, but I believe that he wants me to decide his petition on the
inconsistent verdict grounds alone, waiving any claim based on the
consecutive sentences ground for purposes of this petition.*fn1
I do so.
To establish ineffective assistance of counsel, Mr. Cathey must
demonstrate that: (1) his counsel's performance was so deficient as to
fall below an objective standard of reasonableness under "prevailing
professional norms" and (2) the deficient performance so prejudiced the
defense as to deny him a fair trial. Strickland v. Washington,
466 U.S. 668, 687-38 (1984). To establish the deficiency of counsel's
performance, Mr. Cathey also must overcome the strong presumption that
"the challenged action might be considered sound . . . strategy." Id. at
689. Finally, even if it was not professionally reasonable, a decision by
counsel "does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment." Id. at 691.
Mr. Cathey's claim is that his trial and appellate counsel rendered
ineffective assistance by not raising the grounds that it was legally
inconsistent of the jury to acquit him of felony murder but convict him
of the underlying felony. The idea that the verdicts are inconsistent
seems to be the reverse of the rule that "[a]ccountability for felony
murder . . . exists only if defendant may be deemed legally responsible
for the felony that accompanies the murder." People v. Shaw,
713 N.E.2d 1161, 1174 (Ill. 1999). Mr. Cathey argues, contrariwise, that
if he is deemed legally responsible for the underlying felony, he must be
found guilty of felony murder for any homicides occurring during those
felonies, so the verdicts were inconsistent.
There is no rule that a guilty verdict in a felony requires a guilty
verdict in any charged homicide associated with the
felony, much as
prosecutors might like to have such an instruction. The verdicts here are
not inconsistent, that is, they do not "necessarily involve the
conclusion that the same essential element is found to both exist and not
exist." In Interest of Sanders, 401 N.E.2d 1118, 1122 (Ill.App. Ct.
1980). Here, the not-guilty verdict is not a finding that some essential
element of the crime of armed robbery did not exist but a finding that
the elements of felony murder were not proven as to Mr. Cathey. People
v. Austin, 264 Ill. App.3d 976, 637 N.E.2d 585, 587 (Ill.App. 1994).
Moreover, even if the verdicts were inconsistent, in Illinois, "legal
inconsistency in the finding should not, on a per se basis, require
reversal of the conviction." People v. O'Malley, 439 N.E.2d 998, 1004
(Ill.App. Ct. 1982). The question is rather whether the totality of
circumstances show that the defendant was not found guilty beyond a
reasonable doubt. Id. Furthermore, a logically inconsistent verdict may
also suggest that the jury was "exercis[ing] its historic power of
lenity." People v. Dawson, 326 N.E.2d 755, 756-57 (Ill. 1975).
Therefore, at least where, as here, any purported inconsistency is to the
defendants' benefit, it cannot be ineffective assistance of counsel not
to raise the issue in challenging the verdict. "It is not deficient
performance to fail to raise an argument with no real chance of success."
Hough v. Anderson, 272 F.3d 878, 898 & n. 8 (7th Cir. 2001). Mr. Cathey's
petition for habeas corpus is DENIED.