Gomez v. Jaimet

• Decision Date: 26 November 2003
• Docket Number: No. 02-4372.,02-4372.
• Citation: 350 F.3d 673
• Parties: Ariel GOMEZ, Petitioner-Appellant, v. Danny JAIMET, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

350 F.3d 673

Ariel GOMEZ, Petitioner-Appellant, v. Danny JAIMET, Respondent-Appellee.

No. 02-4372.

United States Court of Appeals, Seventh Circuit.

Argued October 22, 2003.

Decided November 26, 2003.

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Douglas H. Johnson (argued), Zellner & Associates, Naperville, IL, for Petitioner-Appellant.

Karen Kaplan (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before FLAUM, Chief Judge, and EASTERBROOK and WILLIAMS, Circuit Judges.

FLAUM, Chief Judge.

In 1999, an Illinois trial court convicted Ariel Gomez of first-degree murder and sentenced him to a thirty-five year prison term. Gomez filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his constitutional right to testify in his own defense was denied by the state trial court and that his trial counsel was constitutionally ineffective for failing to present Gomez's testimony. The district court denied the writ finding each of Gomez's constitutional claims either without merit or defaulted. Gomez v. Pierson, 232 F.Supp.2d 888 (N.D.Ill.2002). Gomez's appeal is limited to the ineffective assistance of counsel claim. For the reasons stated herein, we affirm the district court's decision.

I. Background

Gomez's conviction arose from a June 1997 incident at the intersection of Cicero and Diversey in Chicago during which a man waiting for a bus was fatally shot. A crowd had gathered in the street after the Chicago Bulls won their fifth National Basketball Association championship—some people were waiting for a bus and others were celebrating the victory. Gomez, then seventeen years old, and four of his friends, were driving around in Gomez's mother's Nissan Pathfinder. The group stopped at the Cicero/Diversey intersection and several men in the crowd exchanged gang signs with them. These men also threw bricks and stones at the Pathfinder. Gomez drove off and stopped on a side street to retrieve a .45-caliber semiautomatic pistol that he had earlier placed under the vehicle's hood. One of his friends, Jose Dominguez, then drove back towards the intersection while Gomez sat in the passenger window and pointed the gun over the top of the vehicle. The crowd began to scatter and Gomez fired the gun in the direction of the group. Two bullets entered the victim, Conception Diaz. Diaz died of multiple gunshot wounds, two of which lacerated his heart and lung.

Eyewitness accounts of how many shots were fired vary somewhat, but generally allege multiple shots. Rey Arroyo testified that the shooter's gun was chrome and that he heard three shots. Arroyo testified that he did not hear any gunshots that sounded different from those gunshots. George Soria witnessed the incident from his car. Soria, familiar with sounds of weapons from his employment background, testified that he heard two or three shots and that no shots were fired other than those coming from the Pathfinder. Stipulations established that several other witnesses heard up to five shots.

Because they feared someone might have seen the Pathfinder's license plate, Gomez and his friends decided to wreck the Pathfinder and tell his mother that it had been stolen. Gomez and Dominguez carried out an elaborate scheme so that the car would crash into a wall while no one was driving it. After the crash, Gomez returned home, where he was later arrested. In Gomez's statement to police, he said that he had hidden in the house the gun that he had fired into the crowd. Ballistics tests later established that the gun recovered from Gomez's house was not the weapon that fired the bullets that were subsequently removed from the victim.

Gomez was charged with first-degree murder and tried in a joint bench trial with his four co-defendants. Although the cases were technically severed, the judge heard evidence against all of the defendants simultaneously. The trial court inferred that Gomez used another gun to shoot the victim and, just as he elaborately planned the disposal of the Pathfinder, Gomez disposed of the gun used in the shooting. The court noted that there was no evidence of anyone else besides Gomez firing a weapon and that Gomez himself admitted that no one in the crowd on the street had any guns. The court found Gomez guilty of murder. Dominguez was also found guilty of first-degree murder while the other three friends riding in the Pathfinder were acquitted.

Gomez appealed to the Illinois Appellate Court, where he challenged the sufficiency of the evidence and argued, among other things, that he did not knowingly and voluntarily waive the right to testify and that his trial counsel was ineffective. Eight months after the Illinois Appellate Court affirmed Gomez's conviction, the same court reversed Dominguez's conviction, holding that there was insufficient evidence of Gomez's guilt on the murder charge to hold Dominguez accountable.

Gomez filed a habeas petition in the district court. The district court denied the petition finding that Gomez's ineffective assistance of counsel claim, premised on his counsel's failure to advise or call him to testify, was procedurally defaulted. The district court based its finding on the fact that the state appellate court disposed of that claim on the adequate and independent state ground of waiver, resulting from Gomez's failure to raise that claim in his motion for new trial. Furthermore, the district court found that Gomez failed to remove the procedural bar to his claim by proving that he was actually innocent of the crime.

This Court granted Gomez's application for a certificate of appealability.

II. DISCUSSION

Generally, federal courts cannot review a petition for writ of habeas corpus premised on questions of federal law that have not been properly presented to the state court. Under this principle, absent a showing of cause and prejudice, federal habeas corpus review is precluded when a state court did not reach a federal issue because it applied a state procedural rule. Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This rule promotes federalism by respecting the importance of state procedural rules and the finality of state court judgments. Furthermore, it discourages "sand-bagging" on the part of defense lawyers who may withhold constitutional claims in state proceedings to have them heard first in federal court.

Illinois has a procedural rule providing that if a defendant fails to raise a claim of ineffective assistance of counsel in his motion for a new trial, the claim is waived on appeal. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988); People v. Keys, 195 Ill.App.3d 370, 376, 141 Ill.Dec. 917, 552 N.E.2d 285 (1990). When, under this rule, the state court declines to review a claim not properly raised, the state court decision rests upon a state law ground that is both "independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Whitehead v. Cowan, 263 F.3d 708, 726-27 (7th Cir.2001) (finding the state supreme court's determination that defendant's claims were waived because they were not raised during trial or post-trial brief constitutes an independent and adequate state grounds for its decision).

An adequate and independent state ground bars federal habeas review of constitutional claims only if "the last state court rendering judgment in the case `clearly and expressly' states that its judgment rests on the state procedural bar." Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). Here, the Illinois Appellate Court was the last state court to consider Gomez's case; the Illinois Supreme Court denied review. The Illinois Appellate Court "clearly and expressly" found that Gomez had waived his ineffective assistance of counsel claim by failing to raise it in the motion for new trial before it discussed the merits of the claim. People v. Gomez, No. 1-98-4474, at 12 ("The State correctly notes that defendant failed to raise this issue in his motion for a new trial and has therefore waived it on appeal.... Waiver aside...."). The Appellate Court further noted that there was no conflict of interest present that would preclude waiver because Gomez's motion for a new trial was prepared by a different attorney than the one who represented him at trial. Id.

Against this backdrop, we will consider Gomez's arguments that the procedural default rule is precluded in this case and that the narrow exception to procedural default based on actual innocence should be applied.

A. Massaro v. United States

Gomez argues that the recent Supreme Court case, Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) removes the procedural bar to his ineffective assistance of counsel claim and thereby allows this Court to review that claim on its merits. In Massaro, the Supreme Court held that a defendant challenging a federal conviction under 28 U.S.C. § 2255 could raise an ineffective assistance of counsel claim in a collateral proceeding, even though the defendant could have, but did not, raise the claim on direct appeal. Gomez argues that the Massaro rule should apply with equal force to proceedings challenging a state conviction under 28 U.S.C. § 2254.

Echoing Massaro's reasoning, Gomez argues that direct appeal is not the forum best suited to determining the adequacy of representation because guilt or innocence is generally the issue of primary importance. Indeed, Massaro concluded that requiring criminal defendants to bring ineffective assistance of counsel claims on direct appeals of federal convictions does not promote the objectives of the procedural default doctrine, namely conservation of judicial resources and respect for the finality of judgments. While logically these arguments may extend to ineffective assistance claims arising out of state court convictions, the...