The opinion of the court was delivered by: Judge Edmond E. Chang
Carmelo Quintana seeks a writ of habeas corpus to vacate his Illinois state-court convictions for aggravated sexual assault and aggravated kidnaping, for which he received consecutive sentences. Quintana argues that his lawyer, Dennis Kellogg, inadequately advised him on whether to take a 4-year plea deal that the State offered before Quintana's trial. Quintana rejected the deal and ended up with a 21-year imprisonment sentence. As explained below, the advice-or, really, the lack of advice as to the sentencing consequences of going to trial-was deficient, so much so that a fairminded court could only conclude that counsel fell short of the reasonable performance demanded by the Sixth Amendment's guarantee of the right to effective assistance. But Quintana has not shown that, "but for the ineffective advice of counsel there is a reasonable probability that . . . [he] would have accepted the plea . . . ." Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012). In other words, even if Quintana had received the effective assistance of counsel, he would have rejected the plea. Quintana told his lawyer that he committed no crime-going so far as committing perjury during the state trial in maintaining his innocence-and even sufficient advice would not have changed Quintana's mind. The petition is denied.
Quintana was convicted at a bench trial. The testimony introduced at trial is described in the Illinois Appellate Court opinion affirming Quintana's conviction. People v. Quintana, 772 N.E.2d 833, 837-40 (Ill. App. Ct. 2002). The trial evidence is again recounted in the opinion issued by the previously-assigned judge in this case, R. 22, and that opinion also describes the state post-conviction proceedings. In summary, on a night in January 1999, Quintana and Jorge Navarette were passengers in a van driven by Dagoberto Alvarado. Alvarado drove the van alongside a woman, the eventual victim, who was walking on the street. The victim was pulled into the middle seat of the van with Navarette. Navarette struck her and attempted to have sex with her. During the sexual assault, Quintana slapped the victim's legs and buttocks. Quintana covered the victim's mouth when she screamed. At some point, Navarette got off of the victim, and she tried to escape through the side door but was pulled back into the van. She eventually did escape, jumping out of the moving van and suffering more injuries. Among other things, the trial evidence included a description of the crimes (including Quintana's involvement) based on the victim's testimony. The trial judge also heard testimony from a witness who saw the van slow down, and then saw the distraught victim standing on the street, wearing only a shirt, mouth bleeding, face cut, and screaming that she had been raped.
The State also introduced a written statement signed by Quintana. In summary, in the statement, Quintana claimed that the victim had willingly gotten into the van, but then Navarette tried to have sex with her while she resisted and said no. Quintana admitted to covering the victim's mouth when she screamed, and further admitted that when the victim tried to escape, he grabbed her. Quintana also said, in the written statement, that he slapped her buttock while the victim was on top of Navarette.
At trial, Quintana denied putting his hand over the victim's mouth,
denied slapping her, and testified that it was Alvarado,*fn1
not Navarette, who supposedly had consensual sex with victim.
Among several other details, Quintana testified that the victim agreed
to have sex with Alvarado for $20. According to Quintana, an argument
broke out over payment, and the victim jumped out of the van. With
regard to the written statement introduced against him, Quintana
contended that the police promised to let Quintana go if he signed
some papers and that the police did not translate the statement for
The state judge found Quintana guilty, and sentenced Quintana to 15 years' imprisonment for the aggravated sexual assault and 6 years for aggravated kidnaping, the sentences to run consecutively. Navarette was also found guilty, and was sentenced to 20 years' imprisonment for the aggravated sexual assault, plus 6 years consecutive for the aggravated kidnaping. Quintana's direct appeal was unsuccessful, and the Illinois Supreme Court denied his petition for leave to appeal in December 2002.
In May 2003, Quintana filed a state post-conviction petition. As relevant here, Quintana filed an affidavit averring that the State had offered a plea deal for four years' imprisonment. According to Quintana, his defense lawyer, Kellogg, failed to tell Quintana that (1) Illinois law required that sentences for aggravated sexual assault and aggravated kidnaping must run consecutively;*fn2 (2) sentences for those felonies would require service of 85% of the sentences,*fn3 rather than 50% (the usual day-for-day good-time credit); and (3) the written statement could be introduced at trial, and the acts to which he admitted in the statement could establish guilt based on the criminal-law principle of accountability. Quintana was appointed a lawyer for the state post-conviction proceeding, and the lawyer filed a 11/2 -page affidavit from Kellogg.
In that January 2005 affidavit, Kellogg admitted to some of Quintana's allegations, but not all of them, and not to a perfect fit. Kellogg did admit that he did not remember a "specific" discussion with Quintana about "mandatory consecutive sentencing nor do I believe I was aware of the statutory requirement at the time of our discussions." Kellogg Aff. ¶ 4. With regard to serving 85% of the sentence, Kellogg had "some brief discussion that sentences were no longer 'day to day' (50%). I do not recall specifically using the words 85% of actual sentence in discussing the [State's] four-year offer." Id. ¶ 6. With regard to the statement, Kellogg stated that "during the discussion of the four-year offer, I did not advise Mr. Quintana that his signed statement would be admitted into evidence at trial, and that it established his guilt of both aggravated criminal sexual assault and aggravated kidnaping by accountability." Id. ¶ 8. On the overall decision to take or reject the plea deal, "there was a discussion of the state's offer of four years as being reasonable, it was not specifically recommended because [Quintana] insisted that he was not directly involved and the actual perpetrator was an individual who had fled to Mexico." Id. ¶ 7. That reference to a fugitive was a reference to Dagoberto Alvarado.
The state post-conviction court denied the petition, R. 16, Exh. Q, and that decision was affirmed by the Illinois Appellate Court, R. 16, Exh. U. The Illinois Supreme Court denied leave to appeal.
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. In order to prove the violation of that right, a defendant must show both a failure of counsel's performance and prejudice arising from that inadequacy. On performance, the question is whether "counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 668 (1984). On prejudice, the question is whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
The right to effective assistance of counsel does cover representation during plea negotiations. That principle is long-established, at least as it applied to counsel's advice to plead guilty. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (citing McMann v. Richardson, 397 U.S. 759, 771 (1970)). More broadly, however, counsel also must provide effective advice in advising a defendant on whether or not to plead guilty, and a violation of the right to counsel may arise from deficient advice even if the defendant receives a fair trial after rejecting the plea offer. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); see also Julian v. Bartley, 495 F.3d 487, 497-98 (7th Cir. 2007). Indeed, "[h]aving to stand trial, not choosing to waive it, is the prejudice alleged." Lafler, 132 S. Ct. at 1385. So to prove prejudice where a defendant alleges inadequate advice in considering a plea offer, a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court ( i.e., that the defendant would have accepted the plea and the ...