The opinion of the court was delivered by: Judge John A. Nordberg
MEMORANDUM OPINION AND ORDER
This case has an unusual procedural history. Many years ago, petitioner Mario Flores filed a 14-count petition for writ of habeas corpus in which he challenged his conviction for murder and armed robbery and his sentence of death. The parties filed extensive briefs, including a number of supplemental briefs addressing changes in the law. Then, as this Court was in the process of preparing a ruling, the Governor of Illinois commuted all death sentences in Illinois. In three cases, the Governor commuted the sentences to 40 years "to fairly bring their sentences into line with their co-defendants and to reflect the other extraordinary circumstances of each of these cases." (1/11/03 Statement of Governor Ryan.) Petitioner's case was one of these three. Although the Governor did not explain (insofar as we know) specifically why he included petitioner's case in this special group, one likely reason is that Harry Gomez, a co-defendant who was tried separately from petitioner, received a 40-year sentence for similar conduct while petitioner was sentenced to death.
After this unusual decision by the Governor, the parties appeared in Court for a status hearing. At that time, petitioner was not sure whether he wanted to proceed with his petition as there was some uncertainty about, among other things, whether legal challenges might be made against the Governor's decision. With the agreement of the parties, this Court stayed this action and set periodic status hearings. Meanwhile, in 2004, petitioner completed his prison term and was released. Because petitioner was a Mexican national, he was deported where he now lives with his parents.
In 2006, petitioner's counsel informed this Court that, although he believed that his sentence claims (Counts VIII-XIV) were moot, his trial error-claims (Counts I-VII) were not and that he wished to proceed with the resolution of them because his conviction affects, among other things, his deportation. Counsel further stated that, because of the lapse of time since the prior briefing, he wanted to do further research to see if there were any additional cases and he also stated that a significant decision relating to one issue, which was the claim that the Chicago Police failed to notify the Mexican Consulate of petitioner's arrest as required by the Vienna Convention, had been issued. Without objection from the State, this Court set a schedule for supplemental briefs by both sides. Petitioner's counsel requested a number of extensions of time to file his initial brief. Petitioner eventually filed a two-page submission stating that, with respect to the issue under the Vienna Convention, the Supreme Court had decided the case against petitioner. See Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2687 (2006) ("claims under Article 36 of the Vienna Convention may be subjected to the same procedural default rules that apply generally to other federal-law claims"). Counsel also stated that he did need find any supplemental authority that was relevant to the case. The State likewise did not submit any additional cases or arguments. Nor has the State suggested that this case is moot because petitioner has been released from prison. See A.M. v. Butler, 360 F.3d 787, 790 (7th Cir. 2004). The end result is that, although half of the claims have now been eliminated and the stakes are now greatly reduced, petitioner still wishes to proceed with his remaining claims.
To provide an initial overview, we quote the summary of facts set forth in the Illinois Supreme Court's decision on direct appeal:
Evidence at trial showed that on January 1, 1984, the body of the victim, Gilbert Perez, was discovered in an alley at 2259 West St. Paul Avenue in Chicago. Next to the body were four spent shotgun shells and another shell was found three to six feet away. It was stipulated that the cause of death was multiple shotgun wounds resulting in massive injuries to the head, chest and internal organs.
Nancy Lebron testified that she lives in a second floor apartment at 2351 North Avenue in Chicago, which overlooks the intersection of North and Western Avenues. On January 1, 1984, at approximately 2 a.m., Lebron heard what sounded like an auto accident, and looking out her window, she saw a car which had been driven against an electrical light pole at the corner of the intersection. Shortly thereafter, the defendant and Victor Flores, who is not related to the defendant, drove up in a wine colored car and parked a short distance from the intersection. They were later joined by another man, who was driving a black and green car. Gilbert Perez, whom Lebron knew as "Blue Eyes," got out of the car that was parked against the electric pole and was approached by the men in the other two cars.
One of the men put his arms around Perez and, she said, talked to him "as if they were good friends." Meanwhile, the defendant returned to the car he was driving, removed a shotgun from the trunk, and pointed it in the direction of Perez. After one of his companions shouted at him, the defendant put the gun into the backseat of the car and returned to the group. Perez walked to the wine colored car and sat in the front passenger seat. The defendant sat in the backseat and Flores drove away. Lebron stated that as the wine colored car drove off following the green and black colored car, she wrote down its license plate number, "AA 959," and handed it to her husband.
Rinaldo Guevara, a Chicago police officer and gang crimes specialist with the Chicago police department, testified that on November 10, 1984, he spoke with Lebron, after receiving an anonymous telephone call from a man who said Lebron might have information concerning Perez' death. From an array of photographs, Lebron identified a photograph of the defendant and that of Sammy Ramos and stated that she had seen them with the victim at the intersection of North and Western Avenues on January 1, 1984. Lebron also identified the defendant from a lineup as the man who she saw carrying the shotgun, and Victor Flores, as the man that was driving the wine colored car when it left Perez. Guevara testified that the defendant was arrested driving a burgundy, 1982 Buick Regal with the license late number "AA 9559," which was registered to Lena Flores, the defendant's sister.
Victor Flores testified that in the early morning hours of January 1, 1984, the defendant, driving his sister's 1982 Buick Regal, picked him up. As they were driving down North Avenue, a car driven by Perez passed them at a high rate of speed. They stopped at the intersection of North and Western Avenues where Perez' car, which appeared to have been in an accident, rested against an electric pole. A few minutes later, Harry Gomez arrived and parked next to them. While they were talking, Gilbert Perez got out of his car and began shouting at a woman in the intersection who was involved in the accident. Flores stated that he, the defendant and Gomez walked to the intersection and approached Perez, who began to threaten them. At one point, Perez made a "pitchfork" signal, which, according to Flores, meant Perez was a member of a street gang known as the Latin Stylers.
Flores testified that the defendant returned to his car, removed a shotgun, and approached the group. After Gomez confronted the defendant, he put the shotgun into the backseat of the car. Gomez then put his "arm around" Perez and led him to the defendant's car. Perez sat in the front seat and the defendant, with the shotgun in his hand, sat in the backseat. Flores drove the defendant's car and followed Gomez several blocks until they stopped on St. Paul Avenue. Flores testified that during the ride the defendant told Perez that Gomez was "Mousey" from the "D's." He explained that "D's" were a street gang affiliated with a larger gang known as the "Folks," and that they were enemies of the gang he and the defendant belonged to, the Latin Brothers.
After the defendant, Gomez and Perez got out of the cars on St. Paul Avenue, Flores drove the car approximately 40 feet, and as he was turning the car around, he heard "four or five" gunshots. In his side, rearview mirror, Flores saw Perez lying on the ground and the defendant standing next to the body with the shotgun in his hand. Gomez was bending over Perez touching his "upper neck." Flores stated he then drove away but Gomez and the defendant caught up with him and directed him to Gomez' house. There, he saw Gomez with a "handful of chains" (chain necklaces) that Gomez said belonged to Perez.
Sammy Ramos testified on behalf of the State under a grant of immunity. On direct examination, he stated that he could not recall having a conversation with the defendant concerning the death of Perez. Ramos stated that he did recall testifying before the grand jury on November 13, 1984, but could not recall the content of his testimony. After receiving the transcript of the grand jury proceedings to refresh recollection, Ramos acknowledged that it contained an accurate description of his grand jury testimony. Upon further questioning, Ramos acknowledge he testified before the grand jury that on January 7, 1984, the defendant told him that on New Year's Eve, he and Victor Flores encountered Perez and Harry Gomez at the scene of an accident at the intersection of North and Western Avenues. The defendant said he became angry after Perez started swearing at a women who was also involved in the accident. He removed a shotgun from the trunk of his car but put it back after Gomez told him to do so. Gomez then told Perez that he was a member of the "Folks" gang, whereupon Perez stated that he was "Blue eyes from the Stylers." The defendant said that the four men drove to Western Avenue and St. Paul Avenue, where he shot Perez six times and Gomez took the victim's chain necklaces from his body.
At the close of the evidence, the jury found the defendant guilty of murder and armed robbery. Thereafter, a hearing was held on the State's motion to seek the death penalty. The jury found the defendant subject to the death penalty, being 18 years of age or older at the time of the murder and having killed the victim in the course of a forcible felony, to wit, armed robbery. (Ill.Rev.Stat. 1983, ch. 38, par. 9-1(b)(6)).
At the second phase of the hearing, the State presented in aggravation evidence of the defendant's juvenile adjudications for retail theft, criminal trespass of a vehicle, and possession of a stolen vehicle. Each of these adjudications resulted in the defendant's being placed on probation. The State also presented the testimony of Rinaldo Guevara, who stated that he had known the defendant for five years and that the defendant is a "hardcore" member of the Latin Brothers street gang. Louis Rosero testified that on August 5, 1984, the defendant stopped him on the street and asked if he would accept a set of tires in lieu of payment for a debt the defendant owed him. The defendant told Rosero to meet him in an alley in back of his father's house. When he arrived, the defendant shot him in the chest five times and twice in the back. As a result, Rosero was rendered a paraplegic and is permanently confined to a wheelchair.
In mitigation, the defendant presented several witnesses who testified to his accomplishments as a high school swimmer and diver. Several witnesses testified to the defendant's good conduct while in custody awaiting trial and his willingness to counsel other inmates. The defendant testified that his life should be spared because he could be of great help to young people coming from "the streets" as he did. The jury found that there were no mitigating factors sufficient to preclude imposition of the death penalty, and the defendant was sentenced to death.
People v. Flores, 538 N.E.2d 481, 483-85 (Ill. 1989) ("Flores I").
After trial, petitioner's trial counsel withdrew and petitioner retained Julius Echeles, who handled the post-conviction petition and direct appeal. After a lengthy hearing, the trial court denied the post-conviction petition. The appeal from this denial was consolidated with the pending direct appeal. The Illinois Supreme Court affirmed the conviction and the denial of the post-conviction petition in Flores I. Echeles then withdrew and a public defender was appointed. He filed a second post-conviction petition, which was dismissed by the trial court. This dismissal was affirmed by the Illinois Supreme Court in People v. Flores, 606 N.E.2d 1078 (Ill. 1992) ("Flores II"). Petitioner then retained new counsel to represent him in the current habeas petition.
In this Court's earlier review of the petition, before Governor Ryan's commutation decision was issued, we had identified three claims that stood out as stronger than the others and were therefore deserving of greater analysis than the rest.
The first one was the claim that petitioner's trial counsel had a conflict of interest when he cross-examined Sammy Ramos due to the fact that Ramos was a former client. The second one was really three related claims that all rested on the assertion that petitioner should not have been eligible for the death penalty because the armed robbery, which made him death eligible, allegedly was only an afterthought made after the victim had already been killed. Or, to describe this argument in the more blunt phrasing of petitioner's post-conviction counsel, "you can't rob a dead man." (PCR 515.)*fn1 The third one was the claim that counsel inexplicably failed to prepare for and challenge the key piece of evidence that was used against him in the death penalty hearing. This latter claim was petitioner's strongest claim of all.
Petitioner's decision now to proceed only with his trial-error claims means that the second and third arguments need not be addressed. Therefore, our primary focus will be on the first argument set forth above and then we will address the other remaining claims more briefly.*fn2
I. Trial Counsel's Failure To Aggressively Cross-Examine Sammy Ramos
Sammy Ramos was one of the State's three key witnesses. The other two were Nancy LeBron who saw the initial traffic accident and identified petitioner as the person who pulled a shotgun out of the car and Victor Flores who allegedly witnessed the murder in the nearby alley and who decided to cooperate with the State a few months before trial. The murder took place on January 1, 1984, but the investigation of the case did not break open until early November 1984.
At that time, Ramos testified before the grand jury that he had a conversation with petitioner a week after the murder in which petitioner admitted he shot Perez in the face with a shotgun. It is fair to say that this grand jury testimony was damaging to petitioner's case as it amounted to an indirect confession of the crime, although as we discuss below it was not the only (or even most important) piece of evidence. At trial, over nine months later, Ramos was a reluctant witness. He would not reaffirm his grand jury testimony but instead claimed memory loss. The grand jury testimony nonetheless came in as substantive evidence under an Illinois statute that had recently been enacted to deal with the problem of the turncoat witness who recants his grand jury testimony at trial.
Petitioner complains that his trial counsel (Michael Johnson) conducted a tepid cross-examination of Ramos, failed to blunt the obvious damage from the grand jury testimony, and ignored a "sizeable arsenal" of impeachment evidence. According to petitioner, any competent counsel in this situation would have argued that Ramos lied to the grand jury when he implicated petitioner. There are three specific arguments along this line that could have been made but (according to petitioner) were not developed. First, several days before Ramos testified before the grand jury, he was arrested for the Perez murder and thus could have implicated petitioner in order to divert attention from himself. Second, at the time of his grand jury testimony, Ramos had several pending felony charges and thus may have testified the way he did either because he had struck a deal with the state or because he hoped to do so in the future. Third, by the time of trial, Ramos had been convicted of numerous felonies and therefore lacked credibility as a witness.
Not only did counsel fail to develop these arguments, he also (according to petitioner) committed two affirmative mistakes when he had Ramos on cross-examination "confirm" two prejudicial points from his grand jury testimony. First, he asked Ramos about whether petitioner was a member of the Latin Brothers street gang. This testimony was allegedly damaging because, among other things, petitioner testified at the death penalty portion of the trial that, although he was friendly with this gang purely out of concern for his safety, he was not actually a member and instead was a student and successful athlete. Second, counsel asked Ramos on cross whether he believed petitioner's statement that he had killed Perez. Although Ramos said that he did not believe that petitioner would have done such a thing, the effect of this line of questioning (again, according to petitioner's argument) was that Ramos indirectly confirmed on cross-examination the key point of the grand jury testimony -- that petitioner in fact did have a conversation with Ramos a week after the crime in which he admitted shooting Perez.
Petitioner believes there is an explanation for counsel's allegedly defective cross-examination. He alleges that counsel was trying to protect Ramos, his former client, from possible perjury charges. Therefore, rather than take the obvious approach of trying to suggest that Ramos had lied to the grand jury, counsel instead fashioned a compromise strategy whereby he had Ramos confirm the truth of his grand jury testimony but then attempted to have Ramos mitigate the damage to petitioner by opining that he did not believe this testimony. Petitioner claims that counsel was trying to "rehabilitate" Ramos and to "insulate him from any possible charge of perjury."
Petitioner thus claims that the flawed cross-examination was not simply a case of bad lawyering but was instead was a conscious strategy motivated by an actual conflict of interest. At least this is the argument set forth in Count I. The parties agree that this claim should be evaluated under the two-part test set forth in Cuyler v. Sullivan, 446 U.S. 335 (1980). Under Cuyler, petitioner must show that counsel operated under (i) an actual conflict that (ii) adversely affected his performance. Id. at 348.
Petitioner also has a backup claim in Count IV, which is a traditional ineffective assistance claim under the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 685-96 (1984). This claim does not rest on any assertion that counsel's mistakes were caused by a conflict. Under the Strickland test, petitioner must show that counsel's performance fell below an objective standard of reasonableness and that it resulted in prejudice. This test, unlike the Cuyler test, does not require petitioner to come up with a reason for why counsel performed inadequately.
As many courts have noted, a defendant has an incentive to categorize his claim under Cuyler rather than Strickland. The Cuyler test imposes a "somewhat lighter burden" with regard to the prejudice requirement. Cabello v. United States, 188 F.3d 871 (7th Cir. 1999). The defendant need only show that the conflict had an "adverse effect" on counsel's performance but is not required to show Strickland prejudice, a more difficult undertaking which requires the defendant to show that the result probably would have been different but for the errors of counsel. The reason for this lesser burden is that the duty of loyalty is one of the "most basic" duties of counsel, and "it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests." Strickland, 466 U.S. at 692. Although Cuyler allows the defendant to avoid the more onerous prejudice requirement, it does impose its own initial requirement. The defendant must show that his counsel operated under an actual (as opposed to a possible) conflict of interest. This requirement has often been a stumbling block for defendants.
Consistent with the emphasis given by petitioner in his briefs, we will devote more time to analyzing the Cuyler claim and will turn to the Strickland claim thereafter. As described above, petitioner is alleging that counsel tailored the cross-examination around his concern for protecting Ramos from perjury. This is a strong allegation carrying with it the charge that counsel compromised his current client's defense to a capital murder charge to protect a former client from a possible future prosecution for perjury. Without even getting into the case law, which is complex and not always clear, we are confident in stating as an initial proposition that, if it is true that counsel was trying to protect Ramos in this manner, then counsel was operating under an actual conflict of interest. The more difficult question, however, is the factual one of whether counsel was truly motivated by this concern. The burden of proof lies with petitioner as he must overcome a "strong presumption" that counsel was effective. United States v. Pergler, 233 F.3d 1005, 1008-09 (7th Cir. 2001).
Before analyzing petitioner's specific arguments, it will be helpful to first sketch out some of the possible ways a defendant might go about establishing an actual conflict. At its most basic level, a conflict of interest means the attorney had "divided loyalties"of some sort -- usually between two clients and less often between a client and the attorney's personal interests. By definition, loyalty is in part a subjective psychological state. So, one obvious way of showing that counsel had conflicting loyalties is to get a direct admission from counsel. As the Supreme Court stated in Holloway v. Arkansas, 435 U.S. 475 (1978), an attorney is usually in the "best position" to know when a conflict exists or might develop, and such admissions carry great weight particularly when made at the time of trial. Id. at 485. Admissions made after trial are more suspect for obvious reasons.
Another way to prove a conflict existed is to draw inferences from the way the attorney performed at trial. This approach has the virtue of avoiding the need to get a direct admission from counsel but it suffers from the problem that there are many other reasons why an attorney's performance might have been sub-par, ranging from failed trial strategies to garden-variety attorney incompetence. For this reason, to prevail under this method of proof and to overcome the strong presumption of competence, a defendant typically must show that the only plausible inference was that the attorney's performance was caused by a conflict of interest. See, e.g., Pergler, 233 F.3d at 1011 (7th Cir. 2001) (because the record is "not clear," "[w]e will not guess at defense counsel's reasons for structuring [the] cross-examination as they did").
The conflicts question also can be analyzed from a more objective and less fact-specific angle by looking at whether a particular "situation" is likely to create a conflict. See Perillo v. Johnson, 205 F.3d 775, 801 (5th Cir. 2000) (an actual conflict arises when an attorney is placed "in a situation" that is "inherently conducive to divided loyalties"). To cite a classic example, an attorney would be in conflict if she represented two co-defendants in the same trial where each was trying to implicate the other. In this type of a case, ...