United States District Court, Central District of Illinois, Urbana Division
December 20, 2002
GREGORY J. MOORE, PETITIONER,
STEVEN BRYANT, WARDEN, RESPONDENT.
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.
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 had waived his
ineffective assistance claim by failing to argue it in the trial court.
However, the appellate court then went on to reject Petitioner's claim
on the merits. The court stated:
Our review of the record makes clear that the trial
court thoroughly and completely admonished
[Petitioner] as to the consequences of his guilty
plea. [Petitioner's] responses to the court's
questions do not reveal any misunderstanding or
hesitancy in his decision to plead guilty.
Moreover, even if Kuehl's advice as to good-time
credit was incorrect, [Petitioner] has not
demonstrated prejudice to him in his decision to plead
guilty. The record does not show that any alleged
misunderstanding by [Petitioner] or Kuehl regarding
good-time credit in any way affected the voluntariness
of [Petitioner's] guilty plea.
Moore, 681 N.E.2d at 1092. Petitioner filed a petition for leave to
appeal to the Illinois Supreme Court.
The Court denied leave to appeal, but vacated that portion of the
appellate court's decision which denied Petitioner presentence credit.
In May 1998, Petitioner filed a timely pro se petition for
post-conviction relief under the Illinois Post-Conviction Hearing Act, 725
Ill. Comp. Stat. 5/122-1, et seq. (West 1998). In this petition,
Petitioner primarily alleged that he was denied the effective assistance
of counsel because of Kuehl's incorrect advice regarding his potential
sentence. Petitioner stated that Kuehl's advice concerning the new
sentencing law was incorrect because it exaggerated the percentage of the
sentence which Petitioner would have to serve if he was convicted after a
trial. Petitioner argued that, on its face, "the statute which concerned
Kuehl did not apply to the instant offense." Petitioner argued that, as a
result, he pled guilty based upon counsel's incorrect advice and would
not have pled guilty otherwise. Petitioner attached his sworn affidavit
and stated that he pled guilty because of Kuehl's advice concerning the
amount of time which he would have to spend in prison if he pled guilty
as opposed to being convicted of murder.
The trial court dismissed the petition as frivolous. The court stated
that, because the appellate court had addressed this ineffective
assistance argument on direct appeal, Petitioner was barred by res
judicata from asserting the issue again in his post-conviction petition.
In July 1999, the appellate court affirmed.
People v. Moore, No. 4-98-0487 (unpublished order). The appellate court
noted that Petitioner testified at the hearing on his amended motion to
withdraw his guilty plea that "his decision to plead guilty was
influenced by several factors apart from Kuehl's sentencing
advice, including [his] depression, his fear for his own safety, his desire
to leave the juvenile detention center, and Kuehl's opinion that [he] would
lose if he proceeded to trial." Moore, No. 4-98-0487, slip op. at 6.
Petitioner filed a petition for leave to appeal to the Illinois Supreme
Court. This petition was denied in October 1999.
On May 8, 2000, Petitioner filed his petition under § 2254 for a
writ of habeas corpus (#3).
Petitioner argues that he was denied the effective assistance of
counsel because his counsel gave him incorrect legal advice which
exaggerated the consequences of going to trial, thus rendering his guilty
plea involuntary. As noted, this court entered an Order (#17) which denied
the petition on the basis of procedural default. The Seventh Circuit
reversed this decision and specifically stated that Petitioner "did not
procedurally default his ineffective assistance of counsel claim." Moore,
295 F.3d at 777. The case was remanded so this court could address
Petitioner's ineffective assistance of counsel claim on the merits.
Moore, 295 F.3d at 777.
Respondent has now filed an Answer (#39) to the petition. Respondent
contends that the appellate court's adjudication on the merits of
Petitioner's claim was a reasonable application of United States Supreme
Court law.*fn2 Respondent argues that the appellate court identified the
proper law regarding ineffective assistance of counsel, the Strickland
standard, and made a reasonable application of the Strickland standard to
Petitioner's case in finding that Petitioner's plea was voluntary.
Respondent contends that Petitioner is therefore not entitled to relief
pursuant to 28 U.S.C. § 2254(d)(1). Petitioner has filed a Reply and
notes that Respondent has made no argument that Kuehl's advice correctly
related Illinois law concerning good-time credits. Petitioner argues that
he has shown that the appellate court's opinions constituted an
unreasonable application of Strickland to the facts of this case.
Because Petitioner filed his habeas petition after April 24, 1996, the
petition is reviewed pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Rodriguez v. Scillia, 193 F.3d 913, 916 (7th
Cir. 1999). Under the AEDPA, a state prisoner who files for a writ of
habeas corpus must establish that the state court proceedings:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
Brown v. Sternes, 304 F.3d 677, 690 (7th Cir. 2002), quoting
28 U.S.C. § 2254(d). Section 2254(d) sets out a "highly deferential
standard for evaluating state-court rulings." Woodford v. Visciotti, 123
S.Ct. 357, 360 (2002), quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7
(1997). However, a "`state-court decision that correctly identifies the
governing legal rule but applies it unreasonably to the facts of a
particular prisoner's case' qualifies as a decision involving an
unreasonable application of clearly established federal law." Boss v.
Pierce, 263 F.3d 734, 739 (7th Cir. 2001), cert denied, 122 S.Ct. 1961
(2002), quoting Williams v. Taylor, 529 U.S. 362, 407-08 (2000).
Reasonableness is judged objectively, not subjectively. Williams, 529
U.S. at 409-10; Boss, 263 F.3d at 739. "Therefore, a federal court may
not grant habeas corpus relief simply because it has independently
concluded that the relevant state court decision misapplies clearly
established federal law. The decision's application of Supreme Court
precedent must be so erroneous as to be unreasonable." Boss, 263 F.3d at
Here, Petitioner claims that he was denied the effective assistance of
trial counsel. In Strickland v. Washington, 466 U.S. 668, 686 (1984), the
United States Supreme Court stated that the benchmark for judging a claim
of ineffective assistance of counsel is whether "counsel's conduct so
undermined the proper functioning of the adversarial process that the
trial cannot be relied on as having produced a just result." A claim of
ineffective assistance of counsel requires a showing that (1) counsel's
performance was deficient and (2) the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687. The same two-part test set out in
Strickland applies to challenges to guilty pleas based upon ineffective
assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985); Tezak
v. United States, 256 F.3d 702, 712 (7th Cir. 2001). In the case of a
guilty plea, the second prong of the Strickland test requires the
defendant to "show that there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." Hill, 474 U.S. at 59. "A reasonable
probability is a probability sufficient to undermine confidence in the
outcome." Woodford, 123 S.Ct. at 359, quoting Strickland, 466 U.S. at
694. As an applicant for habeas relief, it is Petitioner's burden to show
that the state court applied Strickland to the facts of his case in an
objectively unreasonable manner. Woodford, 123 S.Ct. at 360.
Petitioner testified at the hearing that, before he pleaded guilty,
Kuehl advised him that he would have to serve 85% of his sentence if he
went to trial and was found guilty and would only have to serve 50% of
his sentence if he pleaded guilty. Kuehl did not contradict Petitioner's
testimony on this point and, in fact, agreed that he spent a "long time"
discussing with Petitioner the effect of the new statute on the amount of
time he would have to serve. There can be absolutely no question that
Kuehl's advice was just plain wrong. As noted previously, the statute
Kuehl was concerned about did not become effective until August 20,
1995, and did not apply retroactively. See Barger v. Peters,
645 N.E.2d 175, 176-77 (Ill. 1994) (statute effecting good time credit
could not be applied retroactively without violating prohibition against
ex post facto laws). Petitioner correctly points out that Respondent has
not even attempted to argue that Kuehl's advice on this point was
correct. Moreover, Kuehl's own testimony shows that he had not even read
the statute. The evidence further shows that he told Petitioner that the
statute was effective either June 1 or July 1, 1995, both of which dates
were incorrect. This court has no difficulty concluding, under these
circumstances, that the evidence shows that Kuehl's performance was
Respondent argues that Kuehl's incorrect advice regarding good time
credit cannot constitute ineffectiveness because Kuehl had no duty to
inform Petitioner of
the collateral consequences of pleading guilty,
citing People v. Huante, 571 N.E.2d 736 (Ill. 1991). This court agrees
with Petitioner that this argument has no merit. The Illinois Supreme
Court has noted that the "courts of this state have traditionally
recognized that good-time credit is a part of every sentence." People v.
Reedy, 708 N.E.2d 1114, 1116 (Ill. 1999). Therefore, Kuehl's incorrect
advice about good time credit was not advice about "collateral
consequences" but was advice about the sentence itself. See Reedy, 708
N.E.2d at 1116-17. This court therefore concludes that the first prong of
the Strickland test has been met in this case.
The appellate court concluded that the second prong of the Strickland
test for ineffective assistance of counsel had not been met. The
appellate court stated that, even if Kuehl's advice was incorrect,
Petitioner was not prejudiced because "[t]he record does not show that
any alleged misunderstanding by [Petitioner] or Kuehl regarding good-time
credit in any way affected the voluntariness of [Petitioner's] guilty
plea." Moore 681 N.E.2d at 1092.
The ultimate question this court must answer in this case is whether
the appellate court's ruling-that Petitioner was not prejudiced by
Kuehl's incorrect advice-"was contrary to, or an unreasonable application
of clearly established federal law, as determined by the Supreme Court."
See Boss, 263 F.3d at 741, quoting 28 U.S.C. § 2254(d)(1). In
answering this question, this court must consider whether the decision is
"at least minimally consistent with the facts and circumstances of the
case" or "if it is one of several equally plausible outcomes." Boss, 263
F.3d at 742, quoting Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.
1997), and Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997).
However, this court should grant the writ of habeas corpus if the
appellate court's determination is "at such tension with governing U.S.
Supreme Court precedents, or so inadequately supported by the record, or
so arbitrary" as to be unreasonable. Boss, 263 F.3d at 742, quoting
Hall, 106 F.3d at 749.
This court concludes that Petitioner's testimony at the hearing clearly
showed that his decision to plead guilty was based, in large part, on his
attorney's advice that he would only have to serve 10 years if he pled
guilty as opposed to 22 to 27 years if he went to trial and was found
guilty. The appellate court was certainly correct that other factors
influenced Petitioner's decision, including his emotional state and
Kuehl's advice regarding his likelihood of succeeding at trial. See
Moore, No. 4-98-0487, slip op. at 6.
However, the testimony showed that Petitioner believed he was innocent
and was very reluctant to plead guilty. Petitioner's testimony showed
that he had anticipated going to trial and then was faced with the
prospect of choosing between the plea agreement, which meant 10 years in
prison, and a trial after which, if convicted, he would have to spend an
estimated 22 to 27 years in prison. In addition, Petitioner filed his
motion to withdraw his guilty plea within weeks of entering the plea.
This evidence shows that "there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have
insisted on going to trial." See Hill, 474 U.S. at 59. In this case, the
facts establish a probability that Petitioner would not have pleaded
guilty absent Kuehl's incorrect advice which is sufficient to undermine
confidence in the outcome. This court must therefore conclude that the
appellate court's conclusion that "[t]he record does not show that any
alleged misunderstanding by
[Petitioner] or Kuehl regarding good-time
credit in any way affected the voluntariness of [Petitioner's] guilty
plea," Moore 681 N.E.2d at 1092 (emphasis added), is not supported by the
testimony presented at the hearing held in this case. Therefore, this
court further concludes that, although the appellate court correctly
identified the governing legal rule, the decision of the appellate court
was an unreasonable application of clearly established federal law, as
determined by the Supreme Court in Strickland and Hill. Accordingly, this
court finds that Petitioner is entitled to relief under
28 U.S.C. § 2254.
IT IS THEREFORE ORDERED THAT:
(1) Petitioner's petition under 28 U.S.C § 2254 for a writ of
habeas corpus (#3) is GRANTED.
(2) Petitioner's conviction is hereby vacated. The State shall have 120
days from the date of the issuance of this Order to release or retry
(3) This case is terminated.