Johnston v. Mizell

• Decision Date: 31 August 1990
• Docket Number: No. 89-1662,89-1662
• Parties: William JOHNSTON, Petitioner-Appellant, v. Larry MIZELL, Warden, and Attorney General, State of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 172

912 F.2d 172

William JOHNSTON, Petitioner-Appellant, v. Larry MIZELL, Warden, and Attorney General, State of Illinois, Respondents-Appellees.

No. 89-1662.

United States Court of Appeals, Seventh Circuit.

Argued June 20, 1990.

Decided Aug. 31, 1990.

Howard B. Eisenberg, Southern Ill. University, School of Law, Carbondale, Ill., David Grounds, Wood River, Ill., for petitioner-appellant.

William H. Johnston, Vienna, Ill., pro se.

Douglas K. Smith, Asst. Atty. Gen., Office of Atty. Gen., Crim. Appeals Div., Springfield, Ill., for respondents-appellees.

Before FLAUM and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

Pursuant to 28 U.S.C. Sec. 2254, petitioner-appellant William Johnston filed in the district court a petition for a writ of habeas corpus. The petition alleged that Johnston's sixth and fourteenth amendment right to effective assistance of counsel was infringed when in a post-trial motion and hearing for a new trial Johnston's trial counsel, Henson, argued that his own assistance at trial was ineffective. After Johnston consented to final judgment by a magistrate, the magistrate denied his petition. Johnston appeals that decision.

Underlying Johnston's habeas action is his conviction for attempted murder, aggravated kidnapping, and armed robbery. Apparently, Johnston had at gunpoint forced his former employer, Nave, to write him a check. He then drove Nave to a remote, wooded area where he repeatedly tied and untied the man, drove him around, and, finding a desolate outhouse, forced him to remove the toilet cover and climb into the toilet's dark recesses. Johnston then fired two shots into the toilet, one of which struck Nave in the head, causing permanent loss of right peripheral vision. During a bench trial in Illinois state court, Johnston asserted that the gun discharged accidentally. He also asserted that at the time of his acts he was insane and highly intoxicated due to drugs. His assertions failed to persuade the judge, however, and he was convicted.

After his conviction, Johnston, through Henson, his attorney, filed with the court a Motion for a New Trial (the "Motion"). The Motion raised a number of issues, among which was one concerning the effectiveness, or lack thereof, of Henson's trial assistance. After a hearing, the state court denied the Motion. Later, on appeal with a new attorney, Johnston argued that he was entitled to a new post-trial hearing with a new post-trial attorney. See People v. Johnston, 148 Ill.App.3d 463, 102 Ill.Dec. 79, 499 N.E.2d 636 (1986), appeal denied, 113 Ill.2d 580, 106 Ill.Dec. 52, 505 N.E.2d 358 (1987). In arguing post-trial his ineffectiveness at trial, Johnston claimed, Henson surely was affected by an inherent conflict of interest, one which created per se ineffective post-trial assistance. Cf. People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). Johnston argued naught about Henson's purported ineffective assistance at trial; his appeal centered exclusively on Henson's purported ineffective assistance post-trial. The Illinois appellate court, however, perhaps "[f]earing infinite regress," Page v. United States, 884 F.2d 300, 301 (7th Cir.1989), chose to investigate Henson's trial assistance. Finding it effective under the test first enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court concluded that no reason existed to remand for a new post-trial proceeding. Noting that errors of constitutional magnitude will be disregarded "where the error is harmless beyond a reasonable doubt," Johnston, 102 Ill.Dec. at 82, 499 N.E.2d at 639, the court held that "a new post-trial motion with new counsel is not required." Id., at 83, 499 N.E.2d at 640. From this decision one justice dissented. See id., at 85, 499 N.E.2d at 642 (Harrison, J., dissenting). Once ineffective assistance of counsel at trial was raised in a post-trial motion, the justice opined, Johnston was entitled to a lawyer who could argue the issue without conflict.

Johnston's subsequent petition to the federal court for writ of habeas corpus once again raised the argument of Henson's purported post-trial ineffective assistance of counsel. Once again, Johnston's argument failed. The reviewing magistrate rejected Johnston's petition on two grounds. First, the magistrate noted that Johnston's contention of post-trial ineffectiveness per se was based largely on the authority of People v. Krankel, supra, a case seemingly outdated and certainly inapposite. In Krankel, a defendant filed a pro se motion for a new trial in which he argued that his counsel's assistance at trial was ineffective. His counsel, who had also filed a motion for a new trial (but without an ineffective assistance of counsel claim) asked the lower court for a continuance so that his client could procure an attorney to argue the pro se motion. The lower court declined counsel's request, and the defendant argued the motion by himself. Later, on appeal before the Illinois Supreme Court, both the defendant and the State agreed that the defendant should have had counsel, other than his trial counsel, to argue his pro se motion, and both agreed that the defendant was entitled to a new post-trial hearing with new post-trial counsel. In light of the rapprochement between the defendant and the State, the Court ordered a new post-trial proceeding with new post-trial counsel. See Krankel, 80 Ill.Dec. at 66, 464 N.E.2d at 1049. But after Krankel, the magistrate observed, Illinois courts facing similar circumstances refused to remand for new post-trial hearings. See People v. Smith, 132 Ill.App.3d 857, 87 Ill.Dec. 629, 477 N.E.2d 755 (1985); People v. Mallette, 131 Ill.App.3d 67, 86 Ill.Dec. 240, 475 N.E.2d 237 (1985). Noting this trend, the magistrate concluded that it is "not imperative that petitioner be represented by substitute counsel on the post-trial motion," nor was it "prejudicial per se for petitioner's trial counsel to argue his own ineffectiveness" post-trial. The second ground for the magistrate's rejection of Johnston's petition was the magistrate's determination that Henson's performance at trial was not deficient, that under the Strickland test his assistance there was effective. Having failed to discern per se ineffective assistance of counsel at the post-trial stage or regular ineffective assistance of counsel at the trial stage, the magistrate denied Johnston's petition.

On this appeal, Johnston raises but one argument: that he was denied his constitutional right to effective assistance of counsel in the post-trial proceedings because his attorney argued post-trial his ineffective assistance at trial. Once again, the merits of Henson's performance at trial are not directly in issue. It is only Henson's performance post-trial that Johnston is concerned with; thus, it is only Henson's performance post-trial that shall rivet our attention.

The gist of Johnston's argument is simple: An attorney who attempts to argue his own incompetence must always struggle with an inherent conflict of interest. In situations where an attorney faces such a conflict of interest ineffective representation is presumed. See generally Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). In this case, Henson faced an inherent conflict of interest when he argued post-trial his ineffective assistance at trial. Ergo, his assistance post-trial was per se ineffective. And even if we do not choose to presume (per Cuyler and Holloway) Henson's post-trial ineffectiveness, there is no doubt that the conflict facing Henson actually made ineffective (per Strickland ) his post-trial assistance. In any case, Johnston argues, he is entitled to a writ of habeas corpus conditioned upon the State providing a new post-trial hearing with a new post-trial attorney.

Generally, ineffective assistance of counsel claims are analyzed under the test set forth by the Supreme Court in Strickland v. Washington, supra. See also People v. Albanese, 104 Ill.2d 504, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984), cert. denied, Albanese v. Illinois, 471 U.S. 1044, 105 S.Ct. 2061, 85 L.Ed.2d 335 (1985). Under the Strickland test, the defendant must show two things: (1) that his attorney's conduct fell below the minimum professional standards of conduct, and (2) that this deficient performance was so prejudicial that the outcome for the defendant probably was changed. Strickland, 466 U.S. at 687-96, 104 S.Ct. at 2064-69. Of the Strickland test the defendant must prove both "prongs"; conversely, then, upon the defendant's failure to prove either prong, a reviewing court may dispose of the defendant's claim. The most difficult step for the defendant usually is proving sufficient prejudice. When he founders there a reviewing court may dispose of his claim without considering whether his counsel's performance was lacking. Id., at 697, 104 S.Ct. at 2069. In certain cases, however, cases in which ineffective assistance of counsel claims are predicated on an attorney's conflict of interest, the showing of prejudice required by Strickland is relaxed. See, e.g., United States v. Horton, 845 F.2d 1414, 1418 (7th Cir.1988). At trial, if a court has notice of a conflict of interest yet fails to inquire about it, "a reviewing court will presume prejudice upon a showing of possible prejudice." Id., at 1418 (citing Holloway v. Arkansas, 435 U.S. at 484-91, 98 S.Ct. at 1178-82). If, on the other hand, the trial court has no notice of the purported conflict, prejudice is presumed only if the defendant demonstrates that " 'an actual conflict of interest adversely affected his lawyer's performance.' " Id. (quoting Cuyler v. Sullivan, 446 U.S. at 348-49, 100 S.Ct. at 1718-19).

The reason for these presumptions, the Holloway and Cuyler presumptions, is evident: It is almost...