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MOORE v. BRYANT

December 20, 2002

GREGORY J. MOORE, PETITIONER,
V.
STEVEN BRYANT, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Michael P. McCUSKEY, United States District Judge

ORDER

On August 3, 2001, this court entered an Order (#17) which denied Petitioner's petition under 28 U.S.C. § 2254 for a writ of habeas corpus (#3) on the basis of procedural default. Petitioner filed a Notice of Appeal, and this court granted his petition for certificate of appealability. On July 9, 2002, the Seventh Circuit issued an Opinion which reversed this court's finding of procedural default, and remanded the case so this court could address the merits of Petitioner's ineffective assistance of counsel claim. Moore v. Bryant, 295 F.3d 771 (7th Cir. 2002). On August 5, 2002, this court entered an Order (#37) which ordered Respondent to file a Response to Petitioner's claim of ineffective assistance of counsel.

Respondent filed his Answer (#39) on November 25, 2002. On December 11, 2002, Petitioner filed his Response to Respondent's Answer (#40). This court has carefully reviewed the arguments of the parties on the merits of Petitioner's claim of ineffective assistance of counsel. Following this careful review, Petitioner's Petition under 28 U.S.C. § 2254 for a writ of habeas corpus (#3) is GRANTED.

FACTS

A hearing was held on Petitioner's amended motion to withdraw his guilty plea on March 8, 1996.

Petitioner testified that he told Kuehl that he was innocent of the charge against him. He testified that he met with Kuehl often while preparing for trial and that Kuehl consistently told him that he had a 50/50 chance of winning his case. Petitioner testified that, about a week before trial was to begin, Kuehl told him that he would lose at trial and that a new good-time statute was going into effect on June 1st that would require him to serve 85% of his sentence. Kuehl told him that, if he was convicted, the court would impose a sentence within the range of 25 to 30 years, of which he would have to serve 22 to 27 years. Kuehl told him that if he accepted the state's plea offer, he would only have to serve 10 years of a twenty-year sentence. Kuehl therefore recommended that he accept the state's offer. Petitioner testified that he again told Kuehl that he was innocent. He testified that he was scared at the time. He did not want to accept the offer, but did not know what else to do. Petitioner's mother testified that Petitioner told her he did not commit the crime. She stated that he told her he was going to plead guilty because his attorney advised him he would get less time than he would if he was found guilty.

Attorney Kuehl also testified at the hearing. Kuehl stated:

I think on July 1st or thereabouts of `95, the good time law changed.

At the time I was discussing the offer with [Petitioner], it wasn't clear whether that law was going to be retroactive, whether legally it could be retroactive. I had some concerns about it.

So, in discussing the plea with [Petitioner], that issue came up. I didn't have the statute in front of me. It hadn't become law yet.

So, for a while, that was an issue, would he have to spend 85 percent of 20 years, 100 percent of 20 years, 50 percent of 20 years. And . . . we spent a long time discussing that aspect of it. Kuehl testified that he was not real confident of a not guilty verdict, but thought they "had a fair chance at a not guilty verdict." Kuehl stated that Petitioner ultimately decided to accept the plea offer, but did so "very reluctantly."

Following the hearing, the trial court denied Petitioner's motion to withdraw his guilty plea. The trial court concluded that Petitioner had entered his plea knowingly and voluntarily. Petitioner appealed to the Illinois Appellate Court, Fourth District. He argued that the trial court abused its discretion by denying his motion to withdraw his guilty plea where Kuehl provided ineffective assistance of counsel.

Specifically, Petitioner contended that Kuehl gave him incorrect advice about the changes in section 3-6-3(a)(2) of the Unified Code of Corrections concerning good time credit. The appellate court affirmed his conviction in June 1997. People v. Moore, 681 N.E.2d 1089 (Ill.App.Ct. 1997). The appellate court noted that Petitioner ...


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