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United States ex rel Lavin v. Walls

August 13, 2010


The opinion of the court was delivered by: Judge Joan B. Gottschall


Petitioner John Lavin was convicted of attempted first degree murder, aggravated battery, and aggravated battery of a senior citizen. (Compare Tr. R. at G4-5 with Tr. R. at H92, Resp. Ex. W, Doc. No. 149.) This matter comes before the court on Lavin's Second Amended Petition for Writ of Habeas Corpus. (Doc. No. 132.)


Lavin was convicted of attempted first degree murder, aggravated battery, and aggravated battery of a senior citizen, following a bench trial in the Circuit Court of Cook County. (Compare Tr. R. at G4-5 with Tr. R. at H92.) According to the testimony at trial, Lavin and 81 year-old Gilbert Costello were involved in an altercation on the evening of April 20, 1997. (See id. at G21-48, G120-21, H3-29.) Lavin and Costello were seen pushing one another; Lavin then punched Costello in the face, knocking him to the ground. (See id. at G21-48.) Lavin tried to finish Costello off by "stomping" on Costello's head three times, causing extensive injuries. (See id.; id. at G120-121, H3-29.) After being found guilty on all counts, Lavin was sentenced to a forty-year prison term. (See id. at H92, I34-35.)

Lavin's convictions were affirmed by the Illinois Appellate Court, and Lavin's petition for leave to appeal was summarily denied by the Supreme Court of Illinois. (Mod. Order on Denial of Rehearing, Resp. Ex. A; Denial of Pet. for Leave to Appeal, Resp. Ex. J.) Lavin subsequently filed a petition for post-conviction relief, which was rejected by the Circuit Court. (Pet. for Post-Conviction Relief, Resp. Ex. K; Order of Cook County Cir. Ct., Resp. Ex. L.) The Illinois Appellate Court upheld the Circuit Court's decision, ruling that there were "no issues of arguable merit"; McDowell's petition for leave to appeal to the Supreme Court of Illinois was later denied. (Order of Ill. App. Ct., Resp. Ex. M; Denial of Pet. for Leave to Appeal, Resp. Ex. Q.)

Having exhausted his state court remedies, Lavin filed a petition for writ of habeas corpus.*fn2 (Second Amend. Pet.) Liberally construed, Lavin's petition states claims for: (1) ineffective assistance of counsel; (2) invalid waiver of Lavin's right to a jury trial; (3) failure to prove beyond a reasonable doubt factors that lead to an expanded sentence, allegedly in violation of Apprendi v. New Jersey; and (4) insufficiency of the evidence. (See id.; Pet.'s Reply and Mem. of Law, Doc. No. 145.) See Coulter v. Gramley, 93 F.3d 394, 397 (7th Cir. 1996) ("Although we agree that the petition is not a model of legal draftsmanship, it is important to construe pro se filings liberally.").


Under 28 U.S.C. § 2254, a federal court cannot issue a writ of habeas corpus for a person held pursuant to a state court judgment unless the state court's previous adjudication of the petitioner's claim either "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). This is a "highly deferential standard." Bennett v. Gaetz, 592 F.3d 786, 790 (7th Cir. 2010).

A decision is "contrary to" federal law when it "contradicts the governing law set forth in [the United State Supreme Court's] cases," or when "'the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from our precedent.'" Collins v. Gaetz, --- F.3d ----, 2010 WL 2735744, at *10 (7th Cir. 2010) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). A decision involves an "unreasonable application" of federal law when it "'correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case,' but not when the state court merely applies federal law 'erroneously or incorrectly.'" Id. (quoting Williams, 529 U.S. at 407-80, 411) (internal citations omitted). In other words, "the state court's application of federal law must be 'well outside the boundaries of permissible differences of opinion'" to be considered "unreasonable." Id. (quoting Jackson v. Frank, 348 F.3d 658, 662 (7th Cir.2003)).

"Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, [a District Court] evaluate[s] the decision of the last state court to adjudicate a habeas petitioner's claim." Cianciola v. Dittmann, 593 F.3d 656, 657 (7th Cir. 2010). Because the Illinois Supreme Court denied Lavin's petitions for review, "[the court] look[s] to the opinion[s] of the Illinois Appellate Court, as well as to the written opinion[s] of the trial court, [to the extent its] reasoning and outcome were followed and affirmed on appeal." Collins, --- F.3d ----, 2010 WL 2735744, at *10.


A. Ineffective Assistance

Lavin argues that "trial counsel was ineffective for failing to present or raise an intoxication defense and for failing to present the facts showing Lavin was inebriated at the time of the incident where he couldn't form [specific intent] to commit attempt[ed] murder." (Second Amended Pet. at 11-12; see id. at 13-31.) Respondent urges that "counsel's decision to pursue a mistaken identity defense instead of a voluntary intoxication defense was a matter of trial strategy," and therefore sacrosanct under the Sixth Amendment. (Answer to Second Amend. Pet. at 18.) The court agrees with Respondent.

In order to establish ineffective assistance of counsel, a petitioner must demonstrate that: "(1) his attorney's performance fell below an objective standard of reasonableness, and (2) he suffered prejudice as a result." Gentry v. Sevier, 597 F.3d 838, 851 (7th Cir. 2010) (quoting Wyatt v. United States, 574 F.3d 455, 457-58 (7th Cir. 2009) (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984))). This is a difficult standard to meet, as the petitioner "must overcome the 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. (quoting Strickland, 466 U.S. at 687-88). "In order to establish sufficient prejudice resulting from the deficiencies in a counsel's performance, a petitioner 'must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Porter v. McCollum, --- U.S. ----, 130 S.Ct. 447, 452 (2009)).

The Circuit Court rejected Lavin's ineffective assistance of counsel claim on post-conviction review, holding as follows:

Lavin contends that his trial counsel was ineffective for failing to raise the affirmative defense of voluntary intoxication. The defense presented was mistaken identity.


It would be inconsistent to claim that Lavin was not the person who committed the crime and that Lavin was so intoxicated that he could not have formed the requisite mental state for attempted murder. Because these theories are mutually exclusive, the defense counsel had to pick one theory to go forward with. Counsel pursued this strategy during opening and closing arguments and during cross examination and, based on the record, it is clear that counsel conducted a meaningful adversarial testing of the State's case. (Order of Cook County Cir. Ct. at 4-6 (internal citations omitted).) The Illinois Appellate Court summarily affirmed the Circuit Court's opinion, ruling only that there were "no issues of arguable merit." (Order of Ill. App. Ct.)

The Circuit Court (and by extension, the Appellate Court) was not unreasonable in concluding that counsel's conduct fell within the standard established by Strickland. Lavin does not dispute that his counsel competently presented a defense of "mistaken identity," or that his counsel "conducted a meaningful adversarial testing of the State's case." (Compare Second Amend. Pet. at 13-31 with Order of Cook County Cir. Ct. at 4-6.) Instead, Lavin complains that intoxication was his "most viable and meritorious defense," and therefore the one his counsel should have used at trial. (Second Amend. Pet. at 19.) It is well-established, however, that "[r]review of trial counsel's performance 'must be highly deferential' and 'every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Smith v. Gaetz, 565 F.3d 346, 352-53 (7th Cir. 2009) (quoting Strickland, 466 U.S. at 689). Moreover, "[a] petitioner must 'overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id. (quoting Strickland, 466 U.S. at 689).

United States v. ex rel. Madej v. Gilmore, No. 98 C 1866, 2002 WL 370222, at *12 (N.D. Ill. Mar. 8, 2002), is instructive.*fn3 In that case, Madej argued that his counsel should have pursued a reasonable doubt theory instead of the ultimately unsuccessful diminished capacity defense counsel used at trial. Id. The court disagreed, reasoning as follows:

If trial counsel were to pursue both a diminished capacity and a reasonable doubt theory the likely result would be that neither defense would be believed. On the one hand counsel would be claiming that Petitioner committed the offense but it should be excused due to his diminished capacity. On the other hand counsel would be claiming that petitioner did not do it because there was another person in the car with him that might have committed the crime. It is clearly within the realm of trial strategy to choose to pursue one defense over another, especially when they are inconsistent. In hindsight, perhaps counsel should have pursued the reasonable doubt defense rather than the diminished capacity defense but hindsight must be avoided in judging trial strategy. The attorney's conduct must be evaluated based on the information available at the time the decision was made. Based on the overwhelming evidence against the defendant at the time of trial, it was not unreasonable for counsel to choose to pursue a diminished capacity defense.


The same is true in Lavin's case. As the Circuit Court pointed out, "[i]t would be inconsistent to claim that Lavin was not the person who committed the crime and that Lavin was so intoxicated that he could not have formed the requisite mental state for attempted murder." (Order of Cook County Cir. Ct. at 4-6.) Because these defenses are mutually exclusive, "it is clearly within the realm of trial strategy" for Lavin's counsel to have chosen one defense over the other. See Madej, No. 98 C 1866, 2002 WL 370222, at *12. Although Lavin's counsel may have had greater success pursuing the voluntary intoxication defense in hindsight, "hindsight must be avoided in judging trial strategy." See id.

Moreover, Lavin's counsel's decision to pursue a defense of mistaken identity is easily justifiable as sound trial strategy under the circumstances. As Lavin points out, there was only one eyewitness, Mark Gilbert, to the altercation between Lavin and Costello. (Pet.'s Reply and Mem. of Law at 4.) Although Gilbert claimed to have gotten a good look at Lavin, Gilbert was watching the assault at night from more than "half a block away." (Id.) In light of these facts, Lavin's counsel had ample basis to argue that the person Gilbert saw fighting with Costello was not Lavin. If successful, the mistaken identity defense would have resulted in acquittal as to all of the charges against Lavin; intoxication, by contrast, would have been a defense only to the charge of attempted murder, leaving Lavin vulnerable to conviction on the aggravated battery charges. (See Answer to Second Amend. Pet. at 21 (citing People v. Rodgers, 780 N.E.2d 352, 356 (Ill. App. Ct. 2002) ("It is well-settled that the defense of voluntary intoxication may be employed only when the offense charged requires the proof of a specific intent as one of the elements of the crime. It is not a defense to general-intent crimes.")).) Thus, counsel took a calculated risk by choosing to pursue the defense that offered to yield the greatest benefit to his client. "[B]ased on the information available at the time the decision was made," Lavin's counsel was not unreasonable in opting to argue mistaken identity instead of intoxication.*fn4 See Madej, No. 98 C 1866, 2002 WL 370222, at *12.

B. Waiver of Right to Trial by Jury

Lavin argues that "the state took away his jury trial rights violating his 14th amendment 5th and 6th amendment rights." (Second Amend. Pet. at 87.)Although Lavin acknowledges his colloquy with the judge in which he expressly waived his right to a jury trial, Lavin claims that he "never executed a jury waiver," and that he was "confused and coerced" into orally waiving his jury trial rights. (Id. at 88-93.) According to Respondent, however, "the record reveals that the court admonished petitioner about the effect of that waiver and that petitioner's election was both knowing and voluntary." (Answer to Second Amend. Pet. at 22.)There is no need for the court to reach the merits of the parties' arguments, since Lavin's jury trial claim is barred by the doctrine of procedural default. Even if Lavin's claim was not barred, however, Lavin has failed to demonstrate that his waiver was invalid.

1. Procedural Default

The court "cannot review a habeas petitioner's constitutional issue unless he has provided the state courts with an opportunity to resolve it 'by invoking one complete round of the state's established appellate review process,'" Byers v. Basinger, --- F.3d ---, 2010 WL 2696522, at *4 (7th Cir. 2010) (quoting O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)), "either on direct appeal or post-conviction review," Gonzales v. Mize, 565 F.3d 373, 380 (7th Cir. 2009). "If the claim comes from the Illinois state courts, the petitioner must have presented each claim in the habeas petition to the Illinois Appellate Court and to the Illinois Supreme Court in a petition for discretionary review." Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010).

Lavin failed to present his jury waiver claim to the Illinois Appellate and Supreme Courts, either during his direct appeal or while seeking post-conviction relief. (See Def. Appellant's Br., Resp. Ex. B; Pet. for Leave to Appeal, Resp. Ex. I; Pet. for Post-Conviction Relief; Post-Conviction Pet. for Leave to Appeal, Resp. Ex. P.) Instead, Lavin based his challenges on Miranda, insufficiency of the evidence, Apprendi v. New Jersey, and (on post-conviction) ineffective assistance. (See Def. Appellant's Br.; Pet. for Leave to Appeal; Pet. for Post-Conviction Relief; Post-Conviction Pet. for Leave to Appeal.) The instant petition for habeas is the first time Lavin has ever argued that his jury trial waiver was invalid. (See Second Amend. Pet. at 87-93.) Because Lavin failed to raise this argument in the Illinois state courts, he is precluded from doing so here.*fn5 See United States ex rel. Clark v. Peters, No. 90 C 3643, 1991 WL 211256, at *5 (N.D. Ill. Oct. 3, 1991) (holding that habeas claim based on lack of intelligent, voluntary jury trial waiver was barred by procedural default).

2. Invalid Waiver

A "valid waiver" of a criminal defendant's Sixth Amendment right to trial by jury requires only that "the defendant 'underst[and] that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge.'" United States v. Johnson, 306 Fed. Appx. 305, 379-80 (7th Cir. 2009) (quoting Haliym v. Mitchell, 492 F.3d 680, 698 (6th Cir. 2007)).In order for a waiver to be valid, "the trial judge need not explain the ramifications of a waiver in terms of the number of votes required for conviction or acquittal." Whitehead v. Cowan, 263 F.3d 708, 732 (7th Cir. 2001). In determining the validity of the waiver after the fact, "the burden is on the defendant to show that a waiver was not knowingly and intelligently made." Id.

Even if Lavin's jury trial waiver argument was not barred by procedural default, the record clearly establishes that Lavin's waiver was voluntary and intelligent. (See Tr. R. at G4-11.) Lavin's claim that he "never executed a jury waiver" (Second Amend. Pet. at 88-93) is belied by the trial record, which states as follows:

[Counsel]: Your Honor, at this time we are tendering a jury waiver that was executed on October 16.


[Court]: All right. Do you understand that by signing this piece of paper you're giving up your right to jury trial and you're going to have a bench trial[?]

[Lavin]: Yes, sir.

[Court]: That's what you want to do?

[Lavin]: Yes, sir.

(Tr. R. at G4, 10.)Thus, the trial transcript clearly reflects Lavin confirming that he executed a jury trial waiver. (See id.)

Even if Lavin had not signed the waiver, "the absence of a written waiver form . . . will not result in reversal if the colloquy provides sufficient indicia of a knowing and voluntary waiver." Johnson, 306 Fed. Appx. at 379-80.Before accepting Lavin's waiver, the judge advised Lavin as to the consequences of his waiver, and ensured that it was both intelligent and voluntary. (See Tr. R. at G4-11.)First, the judge apprised Lavin of each charge pending against him, as well as the sentencing enhancements applicable to each charge. (Id. at G4-8.)The judge asked Lavin if he "understood what [he was] charged with," and "the possible penalties on these charges," to which Lavin responded, "Yes, sir." (Id. at G5-8.)Next, the judge explained that "on each one of these charges you're entitled to have a jury trial," and went on to describe what a jury trial entails. (Id. at G8-9.)When the judge asked Lavin, "Do you understand what a jury trial is," Lavin replied, "Yes, sir." (Id. at G9.)The colloquy continued as follows:

Q: If you don't want a jury trial, then you can have a bench trial. On a bench trial I and I alone will decide if the State proves you guilty beyond a reasonable doubt. I am the one that says guilty or not guilty. ...

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