United States District Court, N.D. Illinois
Czech, Plaintiff, represented by Kenneth A. Kroot, Jenner &
MEMORANDUM OPINION AND ORDER
W. GETTLEMAN, District Judge.
Kevin Czech, a prisoner at the Pontiac Correctional Center,
brings this pro se habeas corpus petition pursuant
to 28 U.S.C. § 2254 challenging his murder and unlawful
possession of a firearm convictions from the Circuit Court of
Cook County. Petitioner argues: (1) appellate counsel was
ineffective for failing to argue on appeal that the trial
court denied his Sixth Amendment right to counsel of his
choice; (2) his due process rights were violated when the
jury instructions included an invalid type of murder offense
and the jury returned a general verdict; and, (3) ineffective
assistance of trial counsel for: (a) failing to request
various jury instructions, and (b) failing to prevent the
jury from learning that the shooter had been convicted of
reasons discussed below, the court rejects petitioner's
ineffective assistance of counsel arguments (Claims One and
Three), but instructs the parties to provide additional
briefing regarding the due process issue (Claim Two). The
court concludes that there was a due process violation at
petitioner's trial, but believes additional briefing is
required as to whether this error had a "substantial and
injurious effect or influence" on the jury's
verdict. Brecht v. Abrahamson, 507 U.S. 619, 623
(1995). Consequently, the court recruits Kenneth A. Kroot,
Jenner & Block LLP, 353 N. Clark Street, Chicago, IL 60657,
to represent petitioner pursuant to counsel's trial bar
obligation under Local Rule 83.11(g).
following facts are drawn from the Illinois Appellate
Court's opinion on direct appeal. Illinois v.
Czech, No. 1-02-0982 (Ill.App.Ct. Mar. 31, 2004) (Rule
23 Order). The state court findings are presumed
correct, and petitioner has the burden of rebutting the
presumption of correctness by clear and convincing evidence.
Brumfield v. Cain, 135 S.Ct. 2269, 2282 n.8 (2015)
(citing 28 U.S.C. 2254(e)(1)). Petitioner provides no
evidence to rebut the state court findings.
was convicted of orchestrating a gang related drive-by
shooting in the Avondale neighborhood on the Northwest side
of Chicago. The shooting occurred at approximately 8:00 p.m.
on September 24, 1999. [10-4 at 43]. The victim, 14-year-old
Alonzo Zuniga, was an innocent bystander, unrelated to a
gang. Id at 43-44. The shooting occurred in an area
claimed by the Latin Kings street gang. Id. at 44.
Petitioner was a member of the Maniac Latin Disciples street
gang, a rival of the Latin Kings.
was with Roberto Mejia, Marquis Falls, and Nancy Malaves in a
grey Buick LaSabre when the shooting occurred. Id.
at 46. Malaves, who was then 15, was dating Mejia, 18 years
old. Id. Petitioner was 20 years old, and Falls was
13. Id. at 48.
to Malaves, the original plan for the evening was for her and
Mejia to have a double date at the movies with petitioner and
petitioner's girlfriend. Id. at 46. Malaves and
Mejia picked up petitioner, who informed them that they would
"cruise by the Kings, " instead of going to the
movies. Id. Petitioner also instructed that they
should pick up Falls. Id. After getting Falls,
petitioner again said they would go "cruising by some
was a "pee wee" in the Maniac Latin Disciples
because, at age 13, he was too young to be a full member.
Id. at 48. As a "pee wee, " Falls could
earn his "stars" by performing tasks for older
members such as holding guns for them. Id. A month
before the shooting, petitioner gave Falls a.357 revolver to
hold for the gang. Id. Falls kept the gun hidden in
an alley behind a garbage can, and would check on the gun
evening of the murder, petitioner, Mejia, and Malaves drove
Falls to the alley to retrieve the gun. Id. After
Falls returned to the car with the gun, Mejia was driving,
Malaves was in the front passenger seat, and petitioner and
Falls were in the backseat. Petitioner told Falls that either
he or Falls would shoot at the Latin Kings. Id. at
48-49. If the Latin Kings were on petitioner's side of
the car, petitioner would do the shooting, while Falls would
be the triggerman if the Latin Kings were on his side.
Id. at 49. Petitioner also instructed Falls to
switch seats with Malaves and sit in the front passenger seat
because the rear window did not fully roll down on Falls'
side of the car. Id.
group then drove to the area where the Latin Kings were
located. A group of approximately 15 people, including the
victim Zuniga, were standing on the sidewalk on the passenger
(Falls's) side of the car. Id. at 44. Petitioner
said, "King love" to the group and began making
Latin King gang signs with his hands. Id. The group
of men shouted back "King love, " and returned the
gang signs. Id.
drove around the block and went past the group of men for a
second time. This time, petitioner told Malave to "close
[her] ears, she [was] gonna hear something loud."
Id. At the same time, petitioner handed the gun to
Falls and instructed him to shoot at the group of Latin
Kings. Id. Falls fired five shots out of the car
window. Id. One of the bullets killed Zuniga.
days after the shooting, the police arrested a different man,
Daniel Garcia, for the shooting. Id. at 49. Garcia,
who knew petitioner and the others involved, told the police
that he had heard petitioner admit to his involvement in the
shootings. Id. Garcia's information led the
police to bring petitioner, Mejia, Malaves, and Falls in for
questioning. Petitioner confessed to the shooting in a
statement to the police, and in a videotaped statement made
to an Assistant State's Attorney ("ASA").
Id. at 51.
Falls and Malaves testified on behalf of the prosecution at
trial. The jury was informed that Falls was tried as a
juvenile, and found guilty of first degree murder for his
participation in the murder. Id. at 43. The jury
also heard from Gina Phee and Carlos Diaz. Phee and Diaz were
standing with the group on the sidewalk during the drive by
shooting. Id. at 43-45.
completion of the trial, the jury found petitioner guilty. He
was sentenced to 42 years of imprisonment. Petitioner
completed his direct appeal, and postconviction proceedings
in the Illinois state courts. He now proceeds with a habeas
corpus petition in this court.
Claim One: Ineffective Assistance of Appellate Counsel for
Failing to Raise a Claim Regarding Disqualification of Trial
Attorney, William Murphy
argues that the state court violated his constitutional right
to counsel of his choice when it disqualified his trial
attorney, William Murphy. He concedes the disqualification
issue was not raised on direct appeal, but argues that his
appellate counsel was ineffective for failing to raise the
issue on direct appeal. Petitioner further concedes that he
failed to properly preserve the ineffective assistance of
counsel claim in his postconviction proceeding, but blames
this second default on ineffective assistance of his
postconviction trial counsel.
the underlying facts, petitioner's parents retained
Murphy and a second attorney, Michael Bianucci, to represent
petitioner prior at trial. Illinois v. Czech, No.
1-11-2910, 2013 WL 1227120, at *1 (Ill.App.Ct. Mar. 26,
2013). Murphy was also representing Daniel
Garcia in an unrelated matter. Id. Garcia was
initially a suspect in the shootings before Garcia identified
petitioner and his associates to the police. Murphy also
advised Garcia regarding petitioner's case. Murphy told
Garcia to "take the Fifth Amendment and see what the
state would do to help him" if called to testify in
petitioner's case. Id. Murphy did not intend to
question Garcia, instead having Bianucci examine Garcia at
trial court explored the conflict prior to petitioner's
case going to trial. Both Murphy and petitioner were willing
to waive the conflict. Id. However, the trial court
found a " per se conflict" that could not
be waived and disqualified Murphy from representing
petitioner. Id. With Murphy disqualified, petitioner
proceeded with his other attorney, Bianucci, representing him
testified as a prosecution witness at trial. [10-2 at 19]. He
said that petitioner confessed to the shooting to him the day
after it occurred. [ Id. at 33].
his conviction, petitioner was represented by a Cook County
assistant public defender for his direct appeal. The
appellate attorney did not raise the issue of Murphy's
disqualification. [10-2 at 198-245].
retained new attorneys from the law firm of Kathleen T.
Zellner & Associates for his postconviction proceedings. The
original counseled postconviction petition raised, among
other claims, that petitioner's constitutional right to