The opinion of the court was delivered by: Michael P. McCUSKEY, United States District Judge
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.
In 1994, when Petitioner was 15 years old, he was charged as an adult
with first-degree murder for his involvement in a
James Kuehl was appointed to represent him. On May 3, 1995, just before
the case was scheduled to go to trial, Petitioner pleaded guilty in
exchange for the state's recommendation that he receive the minimum
twenty-year prison sentence. The trial court accepted the guilty plea,
and Petitioner was sentenced to a term of 20 years' imprisonment. Shortly
thereafter, Petitioner filed a motion to withdraw his guilty plea, and
the trial court appointed another attorney, Sherman Brown, to represent
him. Attorney Brown filed an amended motion to withdraw Petitioner's
guilty plea. The motion stated that Petitioner's plea was not knowingly
or voluntarily made because, among other things, Kuehl had told him
that, if he was convicted after a trial, Illinois' newly enacted
good-time credit statute would require that he serve 85% of the sentence
imposed. By comparison, Kuehl informed him, if he pleaded guilty
immediately, he would serve, under the then-current Illinois law, 50% of
a twenty-year sentence. In fact, however, the new good-time statute, 730
Ill. Comp. Stat. 5/3-6-3(a)(2) (West 1996), only applied to offenses
committed after its effective date of August 20, 1995, and thus did not
apply to Petitioner's 1994 offense.*fn1
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.
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 ...