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Czech v. Melvin

United States District Court, N.D. Illinois

March 24, 2017

Kevin Czech, K90539, Petitioner,
Michael Melvin, Acting Warden, Respondent.


          Robert W. Gettleman United States District Judge.

         This decision is a follow up to the court's August 3, 2016, opinion in Czech v. Pfister, No. 14 C 2012, 2016 WL 4158925 (N.D. Ill. Aug. 3, 2016). The court presumes the reader's familiarity with the August 3rd decision. In that decision, the court considered petitioner's 28 U.S.C. § 2254 habeas corpus petition (Dkt. 1) and denied petitioner's ineffective assistance of counsel arguments (Claims One and Three).

         As to the remaining claim (Claim Two), the court concluded that petitioner's due process rights were violated when the jury returned a general verdict that may have relied upon an invalid legal theory. Id. at *10 (citing Yates v. United States, 354 U.S. 298 (1957)). The court called for additional briefing regarding whether the due process violation resulted in a “‘substantial and injurious effect or influence in determining the jury's verdict.'” Brecht v. Abrahamson, 507 U.S. 619, 623 (1995) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Having reviewed the parties' additional briefing, [1] the court concludes that the constitutional error did not have a substantial and injurious effect or influence on the jury's verdict. Accordingly, Claim Two is denied. The habeas corpus petition is denied on the merits. The court will issue a certificate of appealability.

         A. Background

         1. The Facts

         The following facts are repeated from the court's August 3, 2016, order and were initially 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).[2] 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)).

         The case arises from petitioner's alleged orchestration of a gang related drive-by shooting on September 24, 1999. Czech, 2016 WL 4158925, at *1. Petitioner was a member of the Maniac Latin Disciples street gang, a rival of the Latin Kings street gang. Id. The shooting occurred in an area controlled by the Latin Kings. Id. The victim, a 14-year-old boy, was an innocent bystander, unaffiliated with either gang. Id.

         Petitioner, Roberto Mejia, Marquis Falls, and Nancy Malaves were riding in a car together when the crime occurred. Id. at *2. Mejia, age 18, was dating Malaves, age 15. Petitioner was 20 years old, and Falls was 13. Id.

         Both Malaves and Falls testified for the prosecution. Id. at *3. According to Malaves, the plan for the evening was for Mejia and her to have a double date at the movies with petitioner and his girlfriend. Id. When Malaves and Mejia picked up petitioner, he informed them that they were going to “cruise by the Kings, ” instead of going to the movies. Id. He also instructed them to pick up Falls. Id. Petitioner again stated they would be “cruising by some Kings, ” after the group picked up Falls. Id.

         Approximately one month earlier, petitioner gave Falls a .357 revolver to hold for the gang. Id. Falls was considered a “pee wee” in the Maniac Latin Disciples because he was too young to be a full member. Id. As a pee wee, he earned “stars” by performing tasks for older gang members, such as holding guns for them. Id. Falls kept the .357 revolver hidden behind a garbage can in an alley, and checked on the gun daily. Id.

         The group drove to the alley and retrieved the gun. Id. Falls gave the gun to petitioner when he returned to the car. (Dkt. 10-1, pg. 144). Falls testified at trial that petitioner stated “he needed a gun to shoot at” or “light up some Kings.” (Dkt. 10-4, pg. 48). Falls further testified that petitioner told Falls that either he or Falls would shoot at the Latin Kings. Id. at 48-49. Petitioner's plan had Falls shoot at the Latin Kings if they were on his side of the car, while petitioner would perform the task if the rival gang members were on his side. Czech, 2016 WL 4158925, at *3.

         The group drove to the Latin Kings' area where approximately 15 people, including the victim, were standing on the sidewalk on Falls' side of the car. Id. As they drove by, petitioner said, “King love, ” to the group, and made Latin King gang signs with his hands. Id. The men on the sidewalk responded with “King love” and Latin King gang signs. Id. Petitioner also identified a ranking Latin King member, Chino, to Falls. (Dkt. 10-1, pg. 146).

         The car drove around the block and made a second pass by the men. Czech, 2016 WL 4158925, at *3. 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. Petitioner shouted “King killer” and “Maniac love” from the car, (Dkt. 10-1, pg. 105), while Falls fired five shots, with one of the bullets killing the victim. Czech, 2016 WL 4158925, at *3.

         Four days later, the police arrested a different man, Daniel Garcia, for the shooting. Id. Garcia, who knew petitioner and the others involved, told the police that he had heard petitioner admit to his involvement in the shooting. Id. This led the police to bring petitioner, Mejia, Malaves, and Falls in for questioning. Id. Petitioner confessed to the shooting in a statement to the police, and in a videotaped statement made to an assistant state's attorney. Id.

         Falls[3] and Malaves, as well as witnesses who were standing among the group on the sidewalk during the drive-by shooting, testified for the prosecution at trial. Id. at *3. Petitioner's confessions were also presented to the jury. Id. at *2.[4] At the completion of trial, the jury found petitioner guilty of murder and unlawful possession of a firearm. Id. at *1, *3.

         2. Petitioner's Claim

         Petitioner's instant claim is that his murder conviction cannot stand because the jury was instructed on an impermissible felony murder theory in addition to being instructed on the elements of Illinois's murder statute, 720 ILCS 5/9-1. The jury was instructed that it should find petitioner guilty of murder if he: (1) intended to kill the victim; (2) caused great bodily harm to the victim or took an action that he knows would cause death to the victim; (3) knew that there was a strong probability of great bodily harm; or (4) the victim's death occurred during the course of committing a felony. (Dkt. 10-2, pg. 185). The fourth ground is the felony murder instruction and the relevant felony was aggravated discharge of a firearm. Id. The defense attorney did not object to the felony murder instruction and the jury returned a general verdict finding petitioner guilty of murder.

         On direct appeal in the state court, petitioner argued that his trial counsel was ineffective for failing to challenge the felony murder instruction. The appellate court ruled that the felony murder instruction was improper under Illinois law, [5] but concluded there was no underlying error. The appellate court explained that the court presumes the jury convicted petitioner of the most serious crime charged; intentional or knowing murder. (Dkt. 10-4, pg. 60). Consequently, the state court concluded that the error in the felony murder instruction was harmless because the jury convicted petitioner under the intentional or knowing murder charge instead of felony murder. Id. Because any error was harmless, petitioner could not raise a Strickland violation for counsel's failure to challenge the felony murder instruction.

         In considering petitioner's claim in the August 3, 2016, opinion, this court addressed two preliminary matters before turning to the underlying claim. First, the court noted that the parties had both briefed the underlying general verdict issue, when petitioner had raised a Strickland claim in the state courts. Czech, 2016 WL 4158925, at *8. Because respondent did not raise a procedural default defense as to the general verdict claim, the court proceeded to the general verdict issue briefed by the parties. Eichwedel v. Chandler, 696 F.3d 660, 669 ...

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