Patrasso v. Nelson, 96-3962

• Decision Date: 05 August 1997
• Docket Number: No. 96-3962,96-3962
• Citation: 121 F.3d 297
• Parties: James PATRASSO, Petitioner-Appellant, v. Keith O. NELSON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 297

121 F.3d 297

James PATRASSO, Petitioner-Appellant, v. Keith O. NELSON, Respondent-Appellee.

No. 96-3962.

United States Court of Appeals Seventh Circuit.

Argued June 11, 1997.

Decided Aug. 5, 1997.

Marc W. Martin (argued), Chicago, IL, for Petitioner-Appellant.

Robert K. Villa (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before POSNER, Chief Judge, and MANION and ROVNER, Circuit Judges.

MANION, Circuit Judge.

James Patrasso, contending that he was denied the effective assistance of counsel at trial, appeals the denial of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. Because we conclude that Patrasso's counsel was ineffective during the sentencing phase of his trial, we affirm in part and reverse in part.

I.

James Patrasso was convicted in 1983 of two counts of attempted murder and two counts of aggravated battery. According to the evidence the state introduced at the bench trial, on February 13, 1982, Patrasso had an altercation with Guy Sisco, the owner of Guy's Steak House, when Sisco refused to let Patrasso (whom Sisco had known for about a year) into the restaurant. About fifteen minutes later Patrasso walked into the restaurant with a gun. He shot Sisco in the chest and Sisco fell behind the bar, then he shot at George Boulahanis, a customer sitting at the bar, who ducked and ran toward the restaurant's kitchen. As he ran, Boulahanis was shot in the hip. Patrasso then returned to Sisco, stood over him, pointed the gun at his head, and pulled the trigger. The gun did not fire. Both Sisco and Boulahanis were treated at the hospital and survived the incident.

Patrasso was indicted on two counts of attempted murder and four counts of aggravated battery. The indictment, as well as the bill of particulars and the grand jury testimony, stated that the crimes occurred on February 13, 1983. The complaint from the preliminary hearing and the discovery material turned over to the defense correctly cited the date in question as February 13, 1982.

At trial Patrasso was represented by attorney Patrick Muldowney. Muldowney, who had not tried any felony cases in the ten years preceding Patrasso's trial, did little to prepare for trial. The sole defense was the variance in dates between the indictment and the State's proof. Muldowney made no opening argument, his cross-examinations of the State's witnesses were perfunctory, he asked Patrasso only one question when Patrasso testified, and he offered a two-sentence closing argument only in response to the court's urging. Patrasso was convicted on all counts.

Muldowney filed a post-trial motion for arrest of judgment, arguing that the variance between the indictment and the State's proof prejudiced his client's defense. The court denied the motion because counsel and Patrasso were aware of the correct date, which was provided in a myriad of discovery materials submitted to the defense. When the case proceeded to sentencing directly after hearing arguments on the motion, the State offered aggravating factors, but Muldowney did not offer any mitigating factors. The court then sentenced Patrasso to the maximum extended term of sixty years imprisonment, finding the crimes "brutal and heinous."

Patrasso obtained new counsel, Gregory Vasquez, who moved for a new trial on the basis of ineffective assistance of counsel. The trial court held an evidentiary hearing at which Muldowney testified that he did not consult with Patrasso regarding the facts of the case (he saw Patrasso at the courthouse prior to hearings, but did not question him about the circumstances of the incident). He also did not discuss the proposed defense with his client, interview witnesses or review any of the police and medical records provided by the State, prepare cross-examinations of the State's witnesses, or prepare his client to testify. He testified that he concentrated solely on the date given in the indictment and the fact that Patrasso was in jail in Los Angeles on that date. The court found that Muldowney's reliance on the variance defense was a trial tactic, though an unsuccessful one. It also noted that Muldowney may have had strategic reasons for not presenting any mitigating evidence, given Patrasso's background and criminal history. Thus, it denied Patrasso's motion for a new trial.

Patrasso appealed to the Illinois Appellate Court, raising among other issues a challenge to counsel's effectiveness. He cited several examples of trial counsel's ineffective assistance: counsel's total reliance on the variance defense; counsel's lack of experience in criminal law; counsel's failure to communicate with Patrasso before trial and consequent failure to develop the facts of the case; counsel's failure to investigate or prepare the case; and counsel's trial demeanor. In another argument, over the propriety of imposing an extended sentence, Patrasso noted that counsel had failed to offer any evidence in mitigation during the sentencing hearing. The appellate court determined that Muldowney had provided effective assistance, though it did not cite the then recently decided cases of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). People v. Patrasso, 127 Ill.App.3d 1162, 91 Ill.Dec. 383, 483 N.E.2d 729 (1984) (unpublished). The Supreme Court of Illinois denied leave to appeal.

Patrasso later filed a petition for postconviction relief in Illinois state court, renewing his claim that he was denied the effective assistance of counsel. The petition incorporated further information about Sisco and Boulahanis and the circumstances of the crime. According to Patrasso, whose assertions were supported by evidence submitted during federal criminal prosecutions of Sisco and Boulahanis for RICO and other offenses, Boulahanis owned a lounge and house of prostitution named My Uncle's Place, with Sisco being Boulahanis's second-in-command. Sisco and Boulahanis were also running a large cocaine distribution operation, at least in part from Guy's Steak House. Patrasso did not merely know Sisco and Boulahanis, but had worked for them as a bouncer at My Uncle's Place. They habitually hooked their employees, including Patrasso, on cocaine, and at the time of the incident Patrasso owed them $3,000 for cocaine. Patrasso had quit working at My Uncle's Place, and Boulahanis and Sisco were concerned about getting their money. After hearing from messengers that Sisco and Boulahanis urged payment (or else), Patrasso went to see them early in the morning of February 13, 1982. After they had snorted cocaine, there was an argument: when Patrasso refused to return to work and told them he would not pay interest on the money, Sisco hit Patrasso on the side of the head with a blackjack, rendering Patrasso unconscious. When Patrasso awoke he went to get his car, which was parked at Guy's Steak House. While there he went into the building, got into a fight with Sisco, and was asked to leave by the police. He went back in with a pistol ten minutes later, intending to make Sisco and Boulahanis leave him alone in the future, and shot them when it appeared they were going for weapons that Patrasso had reason to believe were stored under the bar and in the kitchen. Patrasso argued that, had his trial and appellate counsel consulted him, they would have been able to use this information to advocate possible defenses and impeach the State's witnesses.

The petition was denied. On appeal the Illinois Appellate Court held that the issue of trial counsel's assistance was barred by res judicata because it had been decided on direct appeal. It went on to decide that Patrasso received effective assistance of post-trial and appellate counsel because he could not show any prejudice from his trial counsel's omissions. People v. Patrasso, 271 Ill.App.3d 1087, 208 Ill.Dec. 372, 649 N.E.2d 428 (1994). Again the Supreme Court of Illinois denied leave to appeal. 163 Ill.2d 578, 212 Ill.Dec. 432, 657 N.E.2d 633 (1995).

Having exhausted his state remedies, Patrasso filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254, alleging, among other claims, that he had been denied the effective assistance of trial counsel guaranteed by the Sixth Amendment. The district court denied the petition, and Patrasso appeals only the issue of trial counsel's ineffectiveness.

II.

A.

On appeal Patrasso argues that trial counsel Patrick Muldowney was ineffective during both the guilt phase and the sentencing phase of Patrasso's trial. Because Patrasso's petition was filed before April 24, 1996, we use the standards applicable before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996. Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481(1997). We review the district court's legal determinations de novo, but presume that the state court's factual determinations are correct. Stone v. Farley, 86 F.3d 712, 716 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 973, 136 L.Ed.2d 857 (1997).

The State urges us to find that Patrasso has procedurally defaulted his ineffectiveness claims because he failed to argue them during his direct appeal. "Federal habeas relief is available only when a petitioner has given the state courts a full and fair opportunity to review a claim, when there is cause and prejudice for the failure to raise the claim in state court or when the default would lead to a 'fundamental miscarriage of justice.' " Steward v. Gilmore, 80 F.3d 1205, 1211 (7th Cir.1996). "Forfeiture under § 2254 is a question of a state's internal law: failure to present a claim at the time, and in the way, required by the state is an independent state ground of decision, barring review in federal court." Hogan v. McBride, 74 F.3d 144, 146, modified, 79 F.3d 578 (7th Cir.1996). The record shows that Patrasso, in a rather disjointed manner, did give the state a...