Bowers v. Hutchinson, Case No. 16-cv-11300
| Decision Date | 14 June 2017 |
| Docket Number | Case No. 16-cv-11300 |
| Parties | JEFFREY BOWERS, Petitioner, v. JEFF HUTCHINSON, Warden, Menard Correctional Center, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner Jeffrey Bowers' pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 [1]. Petitioner argues that his direct appeal counsel was ineffective for failing to argue that his trial counsel was ineffective for not bringing a post-trial motion arguing that the state trial court coerced the jury by announcing that the jury would be sequestered overnight. For the reasons set forth below, the Court denies Petitioner's habeas corpus petition [1] and declines to issue a certificate of appealability. Petitioner's motion for extension of time [13] is denied as moot.
In May 2008, following a jury trial in Illinois state court, Petitioner was found guilty of two counts of first-degree murder for personally discharging a firearm, two counts of attempted first-degree murder, and two counts of aggravated battery with a firearm. His conviction was based on an incident in which he and two accomplices fired an AK-47 into a crowd, fatally wounding two people and seriously injuring two others. Petitioner was sentenced to life in prison without parole.
At trial, the jury began deliberating around 1:00 p.m. At approximately 4:15 p.m., the jury sent a note to the state trial court asking if it could have the transcript of a witness's testimony; the requested testimony was subsequently provided. At approximately 4:35 p.m., the jury sent a note asking what it meant when the court said that the identification marks were stricken from evidence that the jury received. The parties agreed on a response, and the court also asked the jurors if they wanted to see the firearms evidence, which the jury declined.
Around 7 p.m., the court called the parties into the courtroom and stated:
Let the record reflect it's approximately 7:00 o'clock. Jurors have been deliberating about 6 and a half hours, and I don't think they have had dinner; so I have instructed the sheriff to order them to a hotel and we're going to sequester them over the evening, and we will have everybody back here at 10:00 o'clock.
People v. Bowers, 2016 WL 4761810, at *1 (Ill. App. Ct. Sept. 12, 2016). Defense counsel objected to the sequestration, arguing that since it was Mother's Day weekend, sequestration may influence the juror's desire to quickly finish deliberating. Defense counsel argued that the case should be "held over until Monday." The state trial court noted the objection for the record but ordered that the jury be sequestered overnight and return to court the following morning. Approximately ten minutes later, the state trial court announced that the jurors had reached a verdict. The court also stated that the jurors had signed one wrong verdict form. Defense counsel argued that the jurors were hastened to come up with a verdict to avoid sequestration. The state trial court rejected this argument, stating that there was "absolutely no evidence of that." Id. at *1-*2. The jury found Petitioner guilty of two counts of first-degree murder, two counts of attempted first-degree murder, and two counts of aggravated battery with a firearm.
Petitioner appealed his conviction, arguing, inter alia, that the trial court coerced the juryby announcing that the jury would be sequestered over a holiday weekend. People v. Bowers, 2011 WL 9557996, at *11 (Ill. App. Ct. Jan. 25, 2011). The Illinois Appellate Court concluded that this argument had been forfeited because although trial counsel objected to the sequestration order at trial, he did not raise the issue in a post-trial motion and thus did not preserve the issue for review. Id. at *12. The Illinois Appellate Court further concluded that since direct appeal counsel made no argument for plain error review, plain error review was also forfeited. Id. Accordingly, the Illinois Appellate Court affirmed Petitioner's convictions. The Illinois Supreme Court denied leave to appeal. People v. Bowers, 949 N.E.2d 1099 (Ill. 2011) (Table).
In March 2012, Petitioner filed in state court a pro se post-conviction petition arguing that his direct appeal counsel was ineffective "for failing to brief and argue trial counsel's ineffectiveness for not raising in his post-trial motion that the verdict was hastened by sequester" and "for failing to argue for plain error review of an unpreserved issue." People v. Bowers, 2016 WL 4761810, at *3-*4 (Ill. App. Ct. Sept. 12, 2016). The court appointed counsel. However, post-conviction counsel later filed a motion to withdraw, stating that after consulting with Petitioner and examining the record, he found no reasonably arguable post-conviction issues. The court granted post-conviction counsel leave to withdraw. Subsequently, the State filed a motion to dismiss Petitioner's state court post-conviction petition arguing that direct appeal counsel was not ineffective for failing to argue for plain error review, Petitioner had not shown that the judge's statement in any way changed or coerced the verdicts, and the length of the deliberations—about six and a half hours—did not indicate that the jury was deadlocked or otherwise unable to unanimously agree. Id. at *6. After a hearing on the State's motion to dismiss, the state trial court dismissed the petition, stating that Petitioner had not made asubstantial showing of a violation of his constitutional rights. The court explained that the statement about sequestration informed the jury that it did not need to reach a decision that night. Further, the court noted that there was no evidence in the record or from Petitioner that the court's sequestration announcement actually interfered with the jury's deliberations or that the jury was deadlocked at the time of the announcement. Finally, the court held that the sequestration issue could not have survived plain error review where there was no clear and obvious error. Id.
Petitioner appealed, arguing that he made a substantial showing of a constitutional claim that his trial counsel and direct appeal counsel provided ineffective assistance by failing to preserve the coerced verdict issue. The Illinois Appellate Court rejected this argument on the merits, concluding that based on the totality of the circumstances, the trial court's comments about sequestration were "entirely proper" and "not coercive." Id., at *10. Illinois Supreme Court denied leave to appeal. People v. Bowers, 65 N.E.3d 843 (Ill. 2016) (Table).
In Petitioner's current pro se petition [1] for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, he again argues that his direct appeal counsel was ineffective for failing to argue that the unpreserved coerced verdict issue should be reviewed for plain error. [1, at 9.]
Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas relief cannot be granted unless the state court's decision was contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1), (2); see also Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013). The Seventh Circuit has stressed that habeas relief is "an extraordinaryremedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process." Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Habeas relief under § 2254 is a "'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-103 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.2 (1979) (Stevens, J., concurring in judgment)). To obtain habeas relief in federal court, "a state petitioner must show that the state court's ruling on the 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 fairminded disagreement." Id. at 103. Further, the state court's factual findings are presumed correct, and the Petitioner bears the burden of rebutting the state court's factual findings by clear and convincing evidence. § 2254(e)(1); Toliver v. McCaughtry, 539 F.3d 766, 772 (7th Cir. 2008).
In order to prevail on an ineffective assistance of counsel claim, Petitioner must show that his counsel's performance was deficient and that he was prejudiced by the deficiencies in counsel's performances. Strickland v. Washington, 466 U.S. 688, 687 (1984). Both components of the test must be satisfied or the claim will be denied; "the lack of either is fatal." Eddmonds v. Peters, 93 F.3d 1307, 1313 (7th Cir. 1996).
Under the first prong of the Strickland test, Petitioner must establish that "counsel's representation fell below an objective standard of reasonableness" when measured against "prevailing professional norms." Id. at 688; see also Gaylord v. United States, 829 F.3d 500, 506 (7th Cir. 2016). In evaluating counsel's performance, a court must consider "all of the circumstances of [the] case" in determining whether counsel's acts or omissions "were madeoutside the wide range of professionally competent assistance." Menzer v. United States, 200 F.3d 1000, 1003 (7th Cir. 2000) (citing United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995)). However, review of counsel's performance is "highly deferential," and a court's analysis must begin with a "strong presumption" that the...
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