Rodriguez v. Montgomery

• Decision Date: 05 February 2010
• Docket Number: No. 06-3995.,06-3995.
• Citation: 594 F.3d 548
• Parties: Neftaly RODRIGUEZ, Petitioner-Appellee, v. Jesse MONTGOMERY, Chief of Parole, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

594 F.3d 548

Neftaly RODRIGUEZ, Petitioner-Appellee, v. Jesse MONTGOMERY, Chief of Parole, Respondent-Appellant.

No. 06-3995.

United States Court of Appeals, Seventh Circuit.

Argued May 29, 2007.

Decided July 5, 2007.

Resubmitted September 4, 2007.

Decided February 5, 2010.

Jennifer A. Bonjean, Attorney (argued), Bonjean Law Group, New York, NY, for Petitioner-Appellee.

Jonathan J. Silbermann, Attorney (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellant.

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

EASTERBROOK, Chief Judge.

This petition for collateral relief has been decided three times by the district court and twice by this one; it has been briefed four times in this court. Today's decision is our third encounter with the subject.

A state judge disqualified one of Neftaly Rodriguez's retained lawyers. After a federal district court concluded not only that the disqualification had been a mistake, but also that any such error automatically leads to a writ of habeas corpus, we reversed. 382 F.3d 670 (7th Cir.2004). We held that, because Rodriguez was represented by one lawyer of his choice, he had to show prejudice from the disqualification of another. We wrote: "The [effect] does not have to be great enough to undermine confidence in the outcome ... but it must be enough to show that the defendant's representation suffered a setback from the disqualification." Id. at 675.

On remand, the district court denied the petition after concluding that Rodriguez has not established that the erroneous disqualification had affected his trial. Five days later, the Supreme Court held in United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), that a mistaken refusal to allow a defendant's chosen lawyer to represent him at trial is a "structural" error that requires relief without regard to prejudice. The district court then reversed course and issued a writ of habeas corpus. The parties' appellate briefs concentrated on the question whether Gonzalez-Lopez applies when a defendant hires more than one lawyer and is represented at trial by at least one of his chosen counsel. They did not discuss whether Gonzalez-Lopez applies to prosecutions that were finally decided by state courts before it was released.

Before argument, we directed the parties to file supplemental briefs on that subject. We then held that, although Gonzalez-Lopez applies to multi-lawyer defense teams, it is not retroactive. 492 F.3d 863 (7th Cir.2007). This left the question posed by our first decision and answered by the district court's second: Whether Rodriguez suffered a setback from the erroneous disqualification. We directed the parties to brief the appeal for a fourth time. It is at last ready for decision. Long overdue, actually. The parties have our apologies for the unnecessary delay.

Rodriguez was convicted of murder and sentenced to 29 years' imprisonment. (He was released on parole after serving only 10 years, but this does not moot his request for collateral relief. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).) After a bench trial, the judge concluded that Rodriguez was one of three gang members who battered a member of a rival gang with blunt objects (such as baseball bats), causing his death. After receiving Miranda warnings and waiving his right to counsel, Rodriguez confessed. At trial multiple witnesses identified Rodriguez as one of the aggressors. Counsel tried and failed to have the confessions suppressed; trial counsel (Perry Grimaldi) also cross-examined the witnesses vigorously in an attempt to undermine confidence in their identifications by bringing out differences in their descriptions of the events. Grimaldi had Rodriguez examined by mental-health specialists, hoping to set up a diminished-capacity defense or show that Rodriguez lacked the mental capacity to waive his right to counsel, though the defense ultimately did not present any expert evidence.

Joseph Brent was Grimaldi's co-counsel for several months, until his erroneous disqualification. Our first opinion posed the question whether the disqualification adversely affected the defense. We suggested that this might be shown "if Brent had expertise that [Rodriguez's] other lawyer lacked, or if Brent had planned a line of defense that co-counsel was unable to sustain on his own." 382 F.3d at 675. On remand in the district court, Brent filed an affidavit that did not pursue either of these possibilities. Instead, Brent said, the defense suffered for two reasons: First, he "would have added another perspective" (Brent is a former prosecutor, while Grimaldi is not); second, he "would have assumed some of the responsibilities in investigating [and trying] the case". At a deposition, Brent stated that there are intangible benefits of multiple lawyers and observed that he wanted to have Rodriguez evaluated by a psychiatrist in order to explore any options that such an evaluation might yield. Reminded that Grimaldi had done exactly this, and asked whether he would have pursued differently any issues arising from Rodriguez's mental capacity, Brent said no. The district judge then concluded that no material dispute remained, because Grimaldi had the same skills as Brent (who conceded in his deposition that Grimaldi, his classmate in law school, is a first-rate trial lawyer) and Brent's participation would not have changed either the nature of the defense or the probability of acquittal.

Rodriguez's...