United States District Court, N.D. Illinois
MEMORANDUM OPINION AND ORDER
W. Gettleman United States District Judge.
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).
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,  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
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). 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)).
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.
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.
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.
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.
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.
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).
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.
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 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
At the completion of trial, the jury found petitioner guilty
of murder and unlawful possession of a firearm. Id.
at *1, *3.
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
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,
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
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 ...