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Czech v. Pfister

United States District Court, N.D. Illinois

August 3, 2016

Kevin Czech, (K90539), Petitioner,
v.
Randy Pfister, Respondent.

          Kevin Czech, Plaintiff, represented by Kenneth A. Kroot, Jenner & Block LLP.

          MEMORANDUM OPINION AND ORDER

          ROBERT W. GETTLEMAN, District Judge.

         Petitioner 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 murder.

         For the 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).

         A. Background

         The 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).[1] 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.

         Petitioner 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.

         Petitioner 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.

         According 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 Kings." Id.

         Falls 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 daily. Id.

         On the 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.

         The 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.

         The car 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.

         Four 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.[2]

         Both 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.

         At the 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.

         B. Petitioner's Claims

         1. Claim One: Ineffective Assistance of Appellate Counsel for Failing to Raise a Claim Regarding Disqualification of Trial Attorney, William Murphy

         Petitioner 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.

         As to 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).[3] 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. Id.

         The 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 through trial.

         Garcia 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].

         Following 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].

         Petitioner 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 the ...


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