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O'Neil v. Acevedo

February 19, 2009

PHILLIP O'NEIL, PETITIONER,
v.
GERARDO ACEVEDO, RESPONDENT.



The opinion of the court was delivered by: Honorable J. Phil Gilbert, District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on the mandate of the United States Court of Appeals for the Seventh Circuit (Doc. 46) remanding this case for further proceedings regarding petitioner Phillip O'Neil's ("O'Neil") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Court decided the issues in this case, then vacated its judgment to reconsider a single claim: that O'Neil's trial counsel was constitutionally ineffective for failing to call him as a witness to testify in his own defense in his criminal case. The parties have briefed this issue (Docs. 51, 53, 54 & 54), and the Court now renders its decision.

I. Background

In 1994, O'Neil was convicted of first degree murder in an Illinois court. He was sentenced to serve thirty years in prison.

At trial, the state presented evidence that on May 23, 1994, Michael Adams ("Adams") had been arguing with O'Neil inside the apartment of Adams's girlfriend. Adams left the apartment to talk to a friend in a van and returned a short while later. Witnesses testified that when Adams returned, O'Neil called out to him and Adams approached O'Neil. O'Neil then fired a shot that missed Adams. Adams then threw up his hands and began walking away from O'Neil, at which time O'Neil shot Adams in the chest. Adams fell and O'Neil approached him and shot him several more times. Adams died of multiple gunshot wounds.

At trial, O'Neil's counsel made an oblique reference to self-defense*fn1 in his opening statement but did not press that theory of defense, did not request a self-defense jury instruction and instead argued to the jury, based on the different sizes of Adams's multiple gunshot wounds, that Adams was actually killed by a second shooter, not O'Neil. That argument was apparently unsuccessful.

In a pro se post-trial motion, O'Neil argued that his counsel had prevented him from testifying at trial. The Illinois Circuit Court held a hearing on the motion at which O'Neil and his counsel both testified that counsel had advised O'Neil not to testify, and that O'Neil had taken his advice. Counsel testified he gave this advice in part because if O'Neil testified, the prosecution would likely introduce a statement O'Neil had given law enforcement officers several days after the shooting. In that statement, O'Neil said that on the day of the shooting Adams had threatened him but he hadn't taken it seriously. He also stated he had seen Adams reach for a bulge in Adams's shirt before O'Neil fired his first shot. He stated that he saw he had hit Adams with his second shot, that he thought if he did not kill Adams, Adams would come back and get him, and that he continued to shoot Adams several more times as he fell to the ground. Counsel thought O'Neil would be harmed by his admission that he made a conscious decision to kill Adams when he decided to continue shooting even after Adams had been shot and was trying to get away. Counsel believed the value of O'Neil's testimony toward a self-defense argument would be outweighed by the damage done by O'Neil's statement negating the imminence of danger prior to the shooting and confirming the conscious decision to kill Adams. Counsel also took into consideration that there were no witnesses who saw Adams with a weapon, and that some witnesses could testify O'Neil announced he was going to harm Adams even before their encounter. Counsel testified that he left the final decision whether to testify up to O'Neil, who chose not to. The Court found counsel's testimony credible and found that his performance was not incompetent.

On the direct appeal, the Illinois Appellate Court affirmed the conviction, finding that counsel was not deficient and that O'Neil suffered no prejudice from his failing to advance a self-defense argument because of the overwhelming evidence of O'Neil's guilt and because self-defense was not a viable defense. The Illinois Supreme Court denied O'Neil leave to appeal the Appellate Court's order.

O'Neil then raised his ineffective assistance of counsel arguments in a state post-conviction petition. The Illinois Circuit Court held a hearing on the petition at which O'Neil and his trial counsel again testified regarding O'Neil's failure to testify at the criminal trial. O'Neil testified that his counsel had advised him not to testify because the jury would not believe a self-defense argument based solely on O'Neil's testimony in light of the other evidence and O'Neil's statement. This time, however, O'Neil testified that he persisted in asking his attorney to let him testify even though it was contrary to his advice. Counsel's testimony was consistent with his earlier testimony that O'Neil made the decision not to testify after counsel's advice. The court was disturbed by a lack of a record of O'Neil's decision regarding the decision not to testify. Nevertheless, it denied the post-conviction petition, stating:

It is clear that Defendant Phillip O'Neil was never afforded the right to testify at his own trial or present certain witnesses on his behalf due to his attorney's failure in this matter. The record is silent as to Defendant's desire to waive his Fifth Amendment protection and testify in this case, and the trial attorney of record's testimony regarding the same is very disturbing to the Court.

In essence, Defendant never conceded that he shot the victim in the case, but his whole defense strategy was based on some form of self-defense. Due to his trial attorney's representation, this was never presented to any jury for consideration.

Also, it is clear that the issue of Ineffective Assistance of Counsel has never been fully addressed on the merits by the Appellate Court. However, certain facets have been referred to regarding Ineffective Assistance of Counsel, in particular, the failure to call certain witnesses.

In light of the Appellate Court's Rule 23 Order, and the language contained therein, as well as the initial trial court's Order, this Court cannot award Defendant a new trial, and, thus, the Petition for Post-Conviction Relief is denied.

The Illinois Appellate Court affirmed the decision denying the post-conviction petition but misstated the Circuit Court's reason for that denial. It justified the affirmance, however, on the res judicata effect of its decision on O'Neil's direct appeal finding ...


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