United States District Court, N.D. Illinois, Eastern Division
August 23, 2005.
UNITED STATES ex rel. ALEX GILBERT, Plaintiff,
GEORGE WELBORN, Defendant.
The opinion of the court was delivered by: DAVID COAR, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Alex Gilbert ("Petitioner" or "Gilbert") filed a
petition for habeas corpus in this Court pursuant to
28 U.S.C. § 2254. This Court denied the petition. On July 14, 2005,
Petitioner filed a timely Notice of Appeal. Pursuant to Federal
Rule of Appellate Procedure 22(b) and Circuit Rule 22.1, this
Court must issue a certificate of appealability or state the
reasons why such a certificate should not issue before an appeal
can be taken. For the reasons stated in this opinion, the
Certificate of Appealability is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioner plead guilty to first-degree murder based on a
theory of accountability. He received a thirty year prison
sentence. On appeal of the trial court's denial of his
post-conviction petition, the Illinois Appellate Court upheld the
trial court's dismissal, finding that Petitioner's claims of
involuntary guilty plea, ineffective assistance of counsel, and
involuntary confession were not supported by the record. People
v. Gilbert, No. 99-3363, slip op. (Ill.App.Ct. Oct. 30, 2001).
When his efforts for collateral relief in state court failed, he
filed a timely habeas corpus petition in this Court. This Court
appointed counsel to represent Petitioner in his habeas proceeding. Petitioner's habeas claims were based on involuntary
confession and ineffective assistance of counsel. This Court
denied his petition on June 16, 2005. See United States ex rel.
Gilbert v. Welborn, No. 02-C-2388, slip op. (N.D. Ill. June 16,
Petitioner, acting through his appointed counsel, now seeks a
certificate of appealability ("COA"). His Notice of Appeal does
not specify the grounds on which he appeals, so this Court will
proceed by assuming that he is reasserting the grounds contained
in his habeas petition. Thus, Petitioner seeks a COA on claims of
involuntary confession and ineffective assistance of counsel in
his state court proceedings.
II. STANDARD OF REVIEW
A petitioner must obtain a certificate of appealability ("COA")
to appeal a final order denying a habeas corpus petition.
28 U.S.C. § 2253(c)(1)(A). A district court may issue a COA "only if
the applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C. § 2253(c)(2). The Supreme Court
set out how a district court should evaluate a request for a COA
in Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a
district court has denied a petitioner's constitutional claims on
the merits, "[t]he petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong." Id. at 484. When a
district court has denied a petitioner's constitutional claims on
procedural grounds "without reaching the prisoner's underlying
constitutional claim," a COA should issue if jurists of reason
could debate whether the petition states a valid claim of the
denial of a constitutional right and whether the district court
was correct in its procedural ruling. Id. at 478. The Supreme Court has held that a petitioner does not need to
demonstrate that he will prevail in order to receive a COA. See
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) ("[A] COA does
not require a showing that the appeal will succeed."). Rather, a
petitioner simply must show that the reasonable jurists might
disagree with the Court's decision. "[A] claim can be debatable
even though every jurist of reason might agree . . . that
petitioner will not prevail." Id. 537 U.S. at 338.
III. INVOLUNTARY CONFESSION
Petitioner seeks a COA on his involuntary confession claim.
This Court held that the state court applied the correct rule to
Petitioner's involuntary confession claim. In determining whether
the state court was also reasonable, this Court noted that it
found the facts of Petitioner's police station interrogation
alarming and was sympathetic to his argument. Ultimately,
however, this Court held that United States Supreme Court case
law indicating that the absence of a friendly adult is
insufficient to require suppression of a juvenile confession, and
Seventh Circuit precedent holding that the absence of an
interested adult during questioning "cannot be dispositive"
demonstrated that the state court was reasonable. Federal court
review of habeas petitions from state court convictions has been
increasingly limited and comprises largely a procedural review of
the state court's methodology. Habeas petitions are not avenues
to relitigate all the underlying issues of the original
conviction. The standard of review for a COA is even more
restricted. The question at this juncture is limited to whether
reasonable jurists would find this Court's ruling open to debate.
Because the state court both identified and applied the correct
law as articulated by the United States Supreme Court and the
Seventh Circuit, this Court does not believe that jurists of
reason would find its decision to deny habeas relief to
Petitioner on his involuntary confession claim debatable or wrong. Consequently,
Petitioner's request for a COA on his involuntary confession
claim is denied.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Petitioner seeks a COA on his ineffective assistance of counsel
claim. This Court denied Petitioner's habeas petition on
ineffective assistance of counsel. Although this Court found that
the state court applied a noncustomary standard of review, this
was not "outside the boundaries of permissible opinion."
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002). In
addition, Petitioner failed to allege, either at the state court
level or in his habeas petition to this Court, "facts showing
that there was a reasonable probability that he would have gone
to trial rather than enter a guilty plea." United States ex rel.
Gilbert v. Welborn, No. 02-C-2388, slip op. at 13 (N.D. Ill.
June 16, 2005). In addition, the state appellate court
specifically referenced eyewitness identification evidence in its
discussion of Petitioner's confession and found that such
evidence provided sufficient factual support for the plea. This
Court found that Petitioner failed to establish that the state
court was unreasonable in its application of the law.
In order to receive a COA, however, reasonable jurists must be
able to find this Court's decision debatable or wrong. Reasonable
jurists might find that the state court's application of a
straightforward, rather than modified Strickland standard, was
not only incorrect but unreasonable. The straightforward
Strickland standard applied by the state court required
Petitioner to show that counsel's ineffective assistance was so
prejudicial that there was a reasonable probability that it
changed the outcome of the case. Strickland v. Washington,
466 U.S. 668, 687-88 (1984). By contrast, the modified Strickland
standard required the Petitioner to show that the counsel's
representation fell below an objective standard of
reasonableness; and that but for this deficiency, there is a reasonable probability
that the petitioner would have gone to trial instead of pleading
guilty. Hill v. Lockhart, 474 U.S. 52, 59 (1985);
Acevedo-Carmona v. Walter, 170 F. Supp. 2d 820, 824 (N.D. Ill.
2001). However, the fact that Petitioner simply did not produce
evidence supporting his claim that he would have gone to trial
rather than plead guilty remains fatal to Petitioner's
ineffective assistance of counsel claim. This Court finds that
reasonable jurists would not find its denial of this claim
debatable or wrong. Consequently, Petitioner's request for a COA
on his ineffective assistance of counsel claim is denied.
For the reasons set forth above, Petitioner's request for a
certificate of appealability is denied.
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