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United States ex rel. Newman v. Rednour

United States District Court, N.D. Illinois, Eastern Division

November 8, 2012

UNITED STATES of America ex rel. Melvin A. NEWMAN, Petitioner,
Dave REDNOUR [1], Warden, Menard Correctional Center, Respondent.

Memorandum Granting Stay in Part March 25, 2013.

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Steven Andrew Drizin, Joshua Alan Tepfer, Laura Hepokoski Nirider, Thomas F. Geraghty, Northwestern University Bluhm Legal Clinic, Chicago, IL, for Petitioner.

Erica R. Seyburn, Chicago, IL, for Respondent.


ROBERT M. DOW, JR., District Judge.

Following a jury trial, Melvin Newman was found guilty of fatally shooting Andy Dent in July 2001 and sentenced to a 47-year prison term. After launching an unsuccessful direct appeal of the verdict, Newman mounted a similarly unsuccessful collateral attack on his conviction in state court. Using the procedures called for in the Illinois Post-Conviction Act (725 ILCS 5/122-1(a)(1)), he raised three arguments. Only one of those arguments is pressed in

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this federal case, so there is no need to recount the others here.

Newman's remaining argument is that his lawyer failed to investigate and raise the issue of Newman's fitness to stand trial, despite having received a two-inch-thick stack of diagnoses and other records from Newman's mother and learning that Newman went to a " special school." Those records included a document from the U.S. Social Security Administration (" SSA" ) confirming that Newman had been found disabled in 1995 on the basis of mental retardation. Another document, an evaluation from a psychologist, stated that Newman had an IQ of 62, " yield[ing] a * * * national percentile rank of 1."

On June 21, 2006, the state trial court dismissed Newman's post-conviction claims without holding an evidentiary hearing. The Illinois Appellate Court affirmed in a split decision, with Justice Wolfson dissenting on the ground that Newman had made a substantial showing of a constitutional violation and thus was entitled to an evidentiary hearing. After exhausting his post-conviction remedies in the Illinois state courts, Newman filed a habeas corpus petition in federal court alleging ineffective assistance of counsel [1].

On September 21, 2010, 2010 WL 3780988, this Court issued an Order [31] concluding that Newman had established a prima facie case that his lawyer's representation fell below the constitutional minimum and that Newman suffered prejudice as a result. Accordingly, the Court granted Newman's request for an evidentiary hearing, which it held in the spring of 2011 [60, 61]. A few weeks after the hearing, on April 4, 2011, the Supreme Court issued its decision in Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), changing the landscape that applies to ineffective assistance of counsel habeas cases and limiting the circumstances in which district courts may hold evidentiary hearings and when they may consider evidence produced at those hearings.

At the time of the post-hearing briefing, there was considerable uncertainty in regard to the proper application of Pinholster. However, the Seventh Circuit's recent opinion in Mosley v. Atchison, 689 F.3d 838 (7th Cir.2012), provided clear guidance to district judges on how to proceed in a habeas case in the post- Pinholster world. Applying Mosley, the Court first assesses whether Newman has properly established a case under § 2254(d) looking only at the record before the state court. If Newman is successful under § 2254(d), the Court then may consider the additional evidence presented at the federal evidentiary hearing to determine whether Newman is entitled to relief.

I. Legal Standard

Federal courts are authorized to issue habeas corpus relief for persons in state custody pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ). Section 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) 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
(2) 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.

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Under § 2254(d), " federal courts are usually limited to deferential review of the reasonableness, rather than absolute correctness, of a state court decision." Mosley, 689 F.3d at 844. For purposes of reasonableness review, " a state prisoner must show that the state court's ruling on a claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement." Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). " Where the state court's decision is ‘ contrary to’ federal law, that decision is not entitled to usual AEDPA deference and is therefore reviewed de novo with the reviewing court applying the correct legal standard." Mosley, 689 F.3d at 844 (citing Martin v. Grosshans, 424 F.3d 588, 592 (7th Cir.2005)).

Federal review of a claim governed by § 2254(d) " is limited to the record that was before the state court that adjudicated the claim on the merits." Pinholster, 131 S.Ct. at 1398. " It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court." Id. at 1399. Therefore, under § 2254(d) " evidence later introduced in federal court is irrelevant." Id. at 1400. If, however, § 2254(d) does not bar relief, then an evidentiary hearing may be needed to determine if the petitioner is being held in violation of the Constitution. Mosley, 689 F.3d at 844 (citing Pinholster, 131 S.Ct. at 1412 (Breyer, J., concurring in part and dissenting in part)).

II. Analysis

Newman claims that his trial lawyer rendered constitutionally ineffective assistance of counsel. To succeed on that claim, Newman must show (1) that counsel's performance fell below an objective standard of reasonableness and (2) that he was prejudiced as a result. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (establishing the familiar two-part " performance" and " prejudice" test for ineffective assistance of counsel claims). Although in this case an evidentiary hearing was held before the Supreme Court decided Pinholster, the Court must decide whether the state court's decision was contrary to or an unreasonable application of federal law based only on the evidence available to the state court when it made its decision. See Mosley, 689 F.3d at 844 n. 1.

A. Section 2254(d)

1. Post-Conviction State Court Proceedings

Newman originally raised his ineffective assistance claim in state trial court pursuant to the Illinois Post-Conviction Act (725 ILCS 5/122-1(a)(1)). The trial court denied Newman's claim in an oral ruling. Rather than addressing whether it was unreasonable for Newman's lawyer to decline to investigate his client's mental condition, the trial judge primarily discussed whether there was enough information available to the trial court such that it should have held a competency hearing on its own motion. To the extent that the trial judge made a finding that Newman was fit to stand trial, the court's conclusions rested on a simplistic rationale:

As to fitness, I personally had conversations with Mr. Newman; and I'm not inexperienced in this matter. And his responses were correct. If he was drooling or if his eyes were going someplace, counsel, I assure you, I would have sua sponte asked for a fitness hearing. His responses were appropriate. In fact, it wasn't a yes-or-no matter

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when I asked him about the second degree murder instruction. He replied no.

June 2006 Order at 17-18 (emphasis added); compare Am. Psychiatric Ass'n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 46 (4th ed. 1994) (" DSM-IV" ) (diagnostic criteria for mental retardation are (a) significantly subaverage intellectual functioning, (b) deficits in adaptive functioning in two of eleven specified areas, and (c) onset before age 18). No witness was called to testify in the state trial court, and Newman's trial lawyer does not appear to have responded to the ineffective assistance allegation even in a subsequently filed affidavit. The trial court suggested that Newman's answer of " no" to a question that did not call for a " yes" or " no" answer was evidence that Newman had given an " appropriate" response to the Court's question. June 2006 Order at 18.

Newman appealed the decision to dismiss his petition without an evidentiary hearing to the Illinois Appellate Court. In a 2-to-1 decision, the Appellate Court affirmed the lower court, ruling that the " defendant has failed to demonstrate that a bona fide doubt as to [Newman's] fitness to stand trial existed at the time of trial." People v. Newman, No. 1-06-1977, slip op. at 10 (Ill.App.Ct. Sept. 4, 2007). The Appellate Court did not reach the question of whether Newman's trial counsel's performance was constitutionally deficient; rather, it addressed only the issue of whether Newman suffered any prejudice as a result. Compare id. at 7 (" Where a defendant fails to show prejudice, the reviewing court need not determine whether the test of deficient performance was met" ), with id. at 8-11 (reasoning that prejudice can be found only if there was, at the time of trial, bona fide doubt about fitness and concluding that no doubt about fitness existed). The court concluded that an expert report (the " Kavanaugh Report" ), which indicated that Newman had an IQ within the " extremely low range" (meaning the 2.2 percentile), but which was prepared after Newman's trial, was " irrelevant" because the facts as they existed at the time of trial were what mattered. In his dissenting opinion, Justice Wolfson expressed his view that Newman had " made a substantial showing of a constitutional violation" and thus should be entitled to an evidentiary hearing. Id. at 14.

2. Prejudice

The Court begins its analysis with the only prong of the Strickland test that the state appellate court addressed on the merits— prejudice. The Court reviews the Appellate Court's decision under the AEDPA and looks only at the state court record. Pinholster, 131 S.Ct. 1388; Charlton v. Davis, 439 F.3d 369, 374 (7th Cir.2006) (explaining that the pertinent decision for review under the AEDPA is the last state court decision on the merits of the issue). Even if a lawyer's representation was objectively unreasonable, a habeas petitioner is not entitled to relief unless he can show that the attorney's deficient performance actually prejudiced the petitioner. Strickland, 466 U.S. at 687, 104 S.Ct. 2052; Eddmonds v. Peters, 93 F.3d 1307, 1319 (7th Cir.1996). To make the required showing, the 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." Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (emphasis added) (teaching that a reasonable probability means " a probability sufficient to undermine confidence in the outcome" ). In this case, that means that Newman must show that if his lawyer had investigated his mental condition, there is a reasonable probability that Newman would have been adjudged unfit to stand trial.

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Illinois law attaches a presumption of fitness; a defendant is only unfit if, " because of his mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense." 725 ILCS 5/104-10; see also Benefiel v. Davis, 357 F.3d 655, 659 (7th Cir.2004) (" It is well-settled that a defendant may not be tried unless he has ‘ sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding— and * * * a rational as well as factual understanding of the proceedings against him.’ " ) (quoting Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)).

In the Appellate Court, the panel majority held that Newman " failed to demonstrate that a bona fide doubt as to his fitness to stand trial existed at the time of the trial" and thus he " failed to satisfy the prejudice prong." People v. Newman, slip. at 10. In the context of a habeas petition governed by the AEDPA, this Court does not assess the adequacy of the state court's reasoning, but rather the reasonableness of its judgment. Harrington, 131 S.Ct. at 785 (2011). Relief will be available only when " there is no possibility fair-minded jurists could disagree that the state court's decision conflicts with [the Supreme Court's] precedent." Harrington, 131 S.Ct. at 786.

Newman argues that, despite this high standard, the state court's decision was unreasonable under both § 2254(d)(1) and (2). Specifically, Newman argues that under § 2254(d)(1) the state court unreasonably applied Strickland and its progeny when, after deeming " irrelevant" an unrebutted expert opinion indicating that Newman was unfit to stand trial, it concluded that Newman was " nothing more than academically challenged and a slow learner." The Court agrees. The Appellate Court found that the Kavanaugh Report was " irrelevant" because it was produced after the trial. But the Kavanaugh Report is relevant evidence-a court cannot simply ignore a post-conviction report of a professional who opines that a defendant may have been unfit at the time of the trial.[2] See Burt v. Uchtman, 422 F.3d 557, 570 (7th Cir.2005). The Kavanaugh Report addresses in detail whether Newman was competent to stand trial at the time of his conviction. Specifically, after interviewing and performing tests on Newman and interviewing others who interacted with him at the time of his trial, Dr. Kavanaugh opines that Newman's limited intellectual ability " would have significantly interfered with his ability to assist in his defense and his [sic] understand the nature and purpose of the proceedings." Kavanaugh Report at C576-77. Kavanaugh also offers her " clinical opinion that Mr. Newman cannot and was not able to assist in his own defense." Id. at 77. The Appellate Court unreasonably refused to consider the Kavanaugh Report, which strongly supports Newman's argument that had his counsel conducted a proper investigation and raised the issue of Newman's mental deficits with the state trial court, there is a " reasonable probability" that Newman would have been unfit to stand trial. Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see also

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Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

Second, Newman argues that under § 2254(d)(2) the Appellate Court's factual determinations were unreasonable. Again, the Court agrees with Petitioner. The Appellate Court's opinion focused on selected statements out of a two-inch stack of reports, ignoring other statements that pointed toward a different conclusion. For instance, the records given to Newman's attorney indicated that Newman had a first-grade reading level, possessed an IQ of 65, and had been declared mentally retarded by the SSA. As the most analogous Seventh Circuit case law holds, when key facts of record run contrary to the state court's conclusions but are not addressed in the court's decision, a major concern arises about the correctness of the disposition. See Julian v. Bartley, 495 F.3d 487, 494 (7th Cir.2007) (reversing district court's denial of § 2254 petition raising ineffective assistance of counsel on grounds that state court's unreasonably determined the facts because " [t]he state court simply ignored a key piece of evidence" ); Hall v. Washington, 106 F.3d 742, 749 (7th Cir.1997) (reversing district court's denial of a § 2254 petition alleging ineffective assistance of counsel on the grounds that the state courts had made an unreasonable determination of facts because state court findings were " inadequately supported by the record" and hence essentially " arbitrary" ). In sum, this Court concludes that the Appellate Court unreasonably overlooked critical evidence in the record in rejecting Newman's claim for post-conviction relief and issued an " inadequately supported" judgment that resulted in prejudice to Newman under § 2254(d)(1) and (2). Id.

3. Performance

As mentioned above, the Illinois Appellate Court reached only the prejudice prong in its analysis and did not address the performance prong of Strickland. Accordingly, the Court reviews the performance prong de novo according to pre-AEDPA standards. See Pinholster, 131 S.Ct. at 1401 (noting that de novo standard applies when the " state court decision did not reach the question" presented by petitioner); Sussman v. Jenkins, 636 F.3d 329, 350 (7th Cir.2011) (" As noted previously, the state appellate court did not address the merits of Mr. Sussman's allegations of deficient performance, but proceeded directly to the prejudice inquiry. Consequently, we review de novo Mr. Sussman's claim of deficient performance." ).

The performance standard provides significant latitude for what qualifies as permissible attorney conduct, and a prisoner " must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (internal quotations omitted). If the prisoner identifies specific errors or omissions made by counsel, the court then must determine " whether, in light of all the circumstances, the ...

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