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Freeman v. Hulick

June 29, 2009

JOE FREEMAN, PLAINTIFF,
v.
DON HULICK, WARDEN, HILL CORRECTIONAL CENTER, DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Petitioner Joe Freeman ("Freeman") was convicted of attempted murder in the Circuit Court of Cook County (the "circuit court") and now brings a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Freeman was represented at trial by two attorneys, one of whom also testified as a witness in his favor. Freeman now argues that he was deprived of his right to counsel of choice and that any waiver of that right was not knowing and intelligent because he was not aware of all of the potential consequences of his decision. For the reasons stated below Freeman's petition for writ of habeas corpus is denied.

STATEMENT OF FACTS

Freeman was found guilty of attempted murder in 2002 after a bench trial in the Circuit Court of Cook County, Illinois and sentenced to twenty-five years in prison. He is incarcerated at the Dixon Correctional Center in Dixon, Illinois. Freeman was convicted of shooting Charles Gregory ("Gregory") after the two argued at the criminal courthouse at 26th Street and California Avenue on November 9, 2000.

Gregory came to the courthouse to look into the status of a case involving an attempted murder/aggravated battery in which he was the victim and Freeman was one of the named defendants. When Gregory saw Freeman leave a courtroom he began an argument with him in the hallway. Freeman's lawyer, Robert Nemzin ("Nemzin"), approached and Gregory walked away. According to Nemzin, when he approached Gregory in the hallway at the courthouse, Gregory told him that he would drop the charges against Freeman in exchange for money. Specifically Gregory told him that "There were two forms of compensation. Either, one, your client can go to the joint, or the other is open for negotiation. What's the deal?"

Freeman and Gregory argued again as the two left the courthouse and then the two went their separate ways. Soon thereafter, a car pulled up next to Gregory as he walked down Monroe Street. Freeman exited the car and Gregory began to run. Freeman shot Gregory three times and then returned to the car and drove away. Gregory later told the police that Freeman had shot him.

Nemzin and his partner Peter Hickey ("Hickey") represented Freeman at the resultant trial. Although serving as an attorney for Freeman, Nemzin testified as to his conversation with Gregory wherein Gregory offered to take money to drop the prior charges. Nemzin was excluded from the courtroom during Gregory's testimony and Hickey presented the opening statement and closing argument and conducted the cross-examination of all of the state's witnesses as well as the direct examination of most of the defense witnesses including Nemzin. Nemzin, however, conducted Freeman's direct examination.

The state objected to Nemzin conducting Freeman's examination because he was also serving as a witness. In response, the trial court conducted a colloquy wherein the judge asked Freeman several times and in several different ways whether he wanted Nemzin to continue to represent him. She specifically asked him whether he wanted Nemzin to conduct his direct examination, and he answered affirmatively. In addition, he specifically affirmed that he had no complaints about Nemzin serving both as an attorney and a witness and that he wanted Nemzin to continue as one of his attorneys. Following the colloquy, the court found that "Mr. Freeman has the right to be represented by whom he chooses. He has chosen [Nemzin]. He has retained Mr. Nemzin and Mr. Hickey. He is 100 percent satisfied with their service. He wants to proceed with Mr. Nemzin and Hickey over the State's objection. I will let Mr. Nemzin proceed as he has been as co-counsel in any capacity he so chooses." Freeman was thereafter convicted of attempted first degree murder and sentenced to twenty-five years in prison.

PROCEDURAL HISTORY

Freeman appealed his conviction arguing that 1) the trial judge showed bias; 2) he received ineffective assistance of counsel in part because his counsel had a conflict of interest; 3) his sentence was excessive; and 4) he was not found guilty beyond a reasonable doubt. The Appellate Court of Illinois (the "appellate court") affirmed Freeman's conviction. See People v. Freeman, No. 1-03-0059 (Ill.App.Ct. July 27, 2004). With regard to Freeman's conflict of interest claim, the appellate court found that Nemzin should have withdrawn as Freeman's attorney but that no prejudice resulted and Nemzin's acting as a witness did not result in ineffective assistance of counsel. Id. Freeman filed a petition for leave to appeal to the Supreme Court of Illinois, which was denied on January 26, 2005. Order Denying PLA, People v. Freeman, No. 99484.

Freeman then filed a Petition for Post-conviction Relief as provided for under the Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq, arguing that he was denied effective assistance of counsel and his right to counsel of his choice because Nemzin both represented him and served as a witness. The circuit court summarily denied the petition and Freeman appealed. The appellate court found that Freeman's contentions were essentially the same as those raised on direct appeal and were thus barred by res judicata. People v. Freeman, No. 1-05-1430 (Ill.App.Ct. May 16, 2006). In addition the court noted that Freeman's claim that he was denied counsel of choice was "belied by the record" noting the court's colloquy in which Freeman stated that he wanted Nemzin to continue to represent him. Id. Freeman filed a Petition for Leave to Appeal that was also denied. Order Denying PLA, People v. Freeman, No. 102898 (November 29, 2006).

Freeman, through his counsel, now brings a petition for writ of habeas corpus arguing once again that he was denied counsel of his choice and that his colloquy with the circuit court did not constitute an effective waiver of that right. He contends that he did not fully understand Nemzin's conflict of interest and if he had understood the conflict, he would have chosen different counsel.*fn1

STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas relief is only granted if the state court's decisions were contrary to or an unreasonable application of federal law as clearly established by the Supreme Court. See Williams v. Taylor, 529 U.S. 362, 402-03 (2000). A state court's decision is "contrary to" clearly established Supreme Court law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives" at a contrary result. Id. at 405. A state court's decision is an "unreasonable application" of Supreme court law if the state court identified the correctly identified controlling law but unreasonably applied it to the facts of the case at hand. Id. "This reasonableness determination is quite deferential, such that a state decision may stand as long as it is objectively reasonable, even if the reviewing court determines it to be substantively incorrect." Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir. 2005); see also Williams, 529 U.S. at 410 (an unreasonable application of federal law is different from an ...


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