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Lopez v. Thurmer

February 5, 2010

JULIAN LOPEZ, PETITIONER-APPELLANT,
v.
MICHAEL THURMER, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05-C-00999-Charles N. Clevert, Jr., Chief Judge.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED MARCH 31, 2009

Before FLAUM, MANION, and ROVNER, Circuit Judges.

A Wisconsin jury convicted Julian Lopez of first-degree intentional murder as a party to a crime. See WIS. STAT. §§ 940.01(1)(a), 939.05. Lopez claims that his trial counsel provided ineffective assistance by failing to request, or even discuss with him, a jury instruction on the lesser-included offense of felony murder. After exhausting his state post-conviction remedies, Lopez filed a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. The district court denied his petition but issued a certificate of appealability. The state post-conviction court did not unreasonably apply clearly established federal law to the facts of Lopez's case, so we affirm the district court's judgment.

I.

At trial, the state presented evidence that Lopez shot Khaled Jilani five times at close range. A police officer testified that she was on patrol when she saw a car, later determined to be Jilani's, ignore a stop sign. The officer then saw two men flee the car, one of whom was carrying a gun. She pursued and eventually apprehended the man with the gun, who turned out to be Lopez. A forensic pathologist testified that the gun found on Lopez was used to kill Jilani, that gunshot residue was found on Lopez's clothing, and that the gun had been very close to Jilani's head and neck when the five fatal shots were fired. Under Wisconsin law, because the gun was in such close proximity to "vital parts" of Jilani's body when it was fired, a presumption arose that the shooter intended to kill his victim. See Smith v. State, 230 N.W.2d 858, 862 (Wis. 1975).

The state presented further evidence connecting Lopez to the killing. Ernesto Lopez, who is Julian's nephew, testified about what Julian had told him regarding the incident. Julian told Ernesto that he and another one of his nephews, Arthur Lopez, entered Jilani's car to collect a drug debt; they were wearing masks and began to pistol-whip Jilani. But Julian accidentally uttered Arthur's name during the attack, which alerted Jilani to the identity of his assailants, so Julian shot and killed Jilani. Luis Acevedo also testified about what Julian had told him regarding the incident. Julian told Acevedo that he and Arthur entered Jilani's car on the night of the killing, again in disguise to collect on the drug debt. In the version of the story Julian told Acevedo, however, it was Arthur who shot and killed Jilani after Jilani saw through Arthur's disguise and uttered his name. Both Acevedo and Ernesto had agreed to testify against Julian in exchange for favorable plea agreements with the state on unrelated charges.

Julian testified in his own defense that he had no plans to commit any crime. Instead, he explained, he, Arthur, and Loyd Guzior were driving to get something to eat when Arthur unexpectedly directed Guzior to pull up behind a parked car; Arthur then approached the car and got inside. After five minutes passed, Julian walked up to the car and saw Arthur and Jilani fighting inside. According to Julian, he got inside the car to protect Arthur, and although he tried to bring the scuffle to a nonviolent end, he was not able to prevent Arthur from shooting Jilani. Arthur dropped the gun while fleeing the car, Julian explained, and he grabbed the gun before fleeing himself.

At the jury-instruction conference, Lopez's counsel informed the court that he was not requesting instructions on any lesser-included offenses to first-degree intentional murder. The court asked counsel whether he had discussed requesting instructions on lesser-in-cluded offenses with Lopez; counsel replied that he had, and Lopez confirmed to the court that he agreed with the decision.

After he was convicted and sentenced to life imprisonment, Lopez filed a motion in state court for post-conviction relief, alleging that counsel's performance was constitutionally deficient because counsel had neither discussed an instruction on the lesser-included offense of felony murder with him nor asked for one from the court. The state trial court denied Lopez's motion, reasoning that because "there was no reasonable basis for acquittal" on the charge of being a party to first-degree murder, the court would not have been required under Wisconsin law to grant counsel's request for a felony-murder instruction even if he had made one. See State v. Kramar, 440 N.W.2d 317, 327 (Wis. 1989). After a thorough examination of the evidence, and relying on a slightly different formulation than the trial court, the state appellate court agreed that Lopez was not entitled to a felony-murder instruction under Wisconsin law because "a reasonable jury could have found Julian Lopez guilty of first-degree intentional homicide." State v. Lopez, 686 N.W.2d 455 (WiS.Ct. App. 2004). Because Lopez was not entitled to a felony-murder instruction, the court concluded, counsel's failure to request one was not constitutionally deficient. See State v. Van Straten, 409 N.W.2d 448, 454-55 (WiS.Ct. App. 1987). The court also observed that "the record belies" Lopez's allegation that counsel never discussed a felony-murder instruction with him, noting in particular the exchange between the court, counsel, and Lopez at the jury-instruction conference, and refused to grant an evidentiary hearing on the matter. The state supreme court denied review.

Lopez then petitioned for a writ of habeas corpus in federal district court. See 28 U.S.C. § 2254. The district court confined its review to the question whether the state appellate court's decision was an "unreasonable application" of Strickland to the facts of Lopez's case, see id. § 2254(d)(1), and concluded that it was not. The district court ruled that counsel's failure to request a felony-murder instruction was not constitutionally deficient because Lopez was not entitled to the instruction. The district court also reasoned that counsel's alleged failure to discuss a felony-murder instruction with Lopez, even if true, could not be constitutionally deficient, again because Lopez was not entitled to the felony-murder instruction. Finally, the district court concluded that Lopez was not entitled to an evidentiary hearing regarding counsel's alleged failure to discuss a felony-murder instruction with him because the record demonstrated that Lopez was not entitled to the instruction under state law, see State v. Bentley, 548 N.W.2d 50, 53 (Wis. 1996), and thus he was not entitled to collateral relief in federal court.

II.

We review de novo the district court's denial of Lopez's petition for a writ of habeas corpus. See Lucas v. Montgomery, 583 F.3d 1028, 1030 (7th Cir. 2009). We may not grant relief unless the state appellate court's adjudication of Lopez's constitutional claims resulted in a decision that is either (1) contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Lucas, 583 F.3d at 1030.

Lopez makes two arguments on appeal. He contends that the state appellate court's application of Strickland to the facts of his case was unreasonable because the court applied the wrong standard under Wisconsin law to determine whether he was entitled to a felony-murder instruction. See 28 U.S.C. ยง 2254(d)(1). He also contends that the state appellate court's factual determination that counsel had discussed a ...


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