U.S. ex rel. Cross v. DeRobertis

• Decision Date: 28 January 1987
• Docket Number: No. 86-2844,86-2844
• Citation: 811 F.2d 1008
• Parties: UNITED STATES ex rel. Mylon C. CROSS, Petitioner-Appellee, v. Richard DeROBERTIS, Warden, Stateville Correctional Center and Neil F. Hartigan, Attorney General of the State of Illinois, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1008

811 F.2d 1008

UNITED STATES ex rel. Mylon C. CROSS, Petitioner-Appellee, v. Richard DeROBERTIS, Warden, Stateville Correctional Center and Neil F. Hartigan, Attorney General of the State of Illinois, Respondents-Appellants.

No. 86-2844.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 6, 1987.

Decided Jan. 28, 1987. ^*

Opinion Feb. 10, 1987.

David E. Bindi, Illinois Atty. Gen. Office, Chicago, Ill., for respondents-appellants.

Frederick F. Cohn, Frederick F. Cohn, Ltd., Chicago, Ill., for petitioner-appellee.

Before HARLINGTON WOOD, Jr., FLAUM, and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

This case is here on expedited appeal from a judgment of the district court granting the petitioner-appellee, Mylon Cross, a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand the case for further proceedings.

I

A. Facts

Along with a co-defendant, the petitioner was charged and, after a jury trial, found guilty of rape and deviate sexual assault. The factual account offered by the state at trial, through the testimony of the victim, is set out in plenary fashion in the opinion of the Appellate Court of Illinois, State v. Williams and Cross, 94 Ill.App.3d 241, 49 Ill.Dec. 820, 418 N.E.2d 840, 844-45 (1981), and in the opinion of the district court. United States ex rel. Cross v. DeRobertis, No. 82 C 4072 (N.D.Ill. Oct. 9, 1986) [hereinafter cited as Mem. op. (Oct. 9, 1986) ]; R.74. Detailed repetition is not required here. In summary, the victim testified that she was forced into Mr. Cross' car and taken at gunpoint to his hotel room. There, she was forced to disrobe, and, over a period of four hours, repeatedly raped and otherwise physically abused by Mr. Cross and the co-defendant. She further testified that a tape recording was playing loudly in the course of the abuse and that, at one point, two people came to the door and told her assailants that the desk clerk would call the police if the noise were not subdued. According to her testimony, she finally escaped, ran from the hotel completely naked, and found shelter in a passing taxi. She told the driver she had been raped. She further testified that, from the taxi, she saw the defendants getting into their car. The cab driver and the driver of another car followed the defendants' car until it stopped.

The victim testified that she had seen Mr. Cross about four times before that evening when she had been with her boyfriend, Willie Taylor.

In addition to the testimony of the victim, the state offered the testimony of the cab driver and the driver of the other car involved in the chase of the defendants' car. It also offered the testimony of one of the desk clerks of the hotel who testified that she observed the defendants and the victim go up to the hotel room, although she did not notice the victim's face. She also testified that later she saw the victim run from the hotel, completely naked. The state also produced photographs of the victim that showed that her forehead and eyes were swollen and cut and that her back was permanently scarred.

The co-defendant did not testify. However, Mr. Cross did take the stand. He testified that--contrary to the victim's testimony--he had, since meeting the victim three months before the incident, spent time with her approximately five times a week and had been with her over thirty times outside the presence of her boyfriend. According to Mr. Cross, the victim had visited his room on many occasions and had engaged in sexual intercourse with him about twenty times. He testified to three specific occasions when others had seen him with the victim: 1) an encounter with the victim and her boyfriend at the Stand Up Bar; 2) an overnight stay at his sister's home; 3) an incident at a Shell station where Mr. Cross and Mr. Taylor had argued over "rights" to the victim. This portion of Mr. Cross' testimony was corroborated by four witnesses. Each of these witnesses was a relative or close friend of Mr. Cross.

Mr. Cross' account of events on the day of the incident was substantially different than that offered by the victim. According to Mr. Cross, he and the victim were drinking together all afternoon at the home of a friend. They spent the early evening hours visiting various bars. When they left the last one around midnight, the victim, the codefendant, and Mr. Cross were all "wasted." They drove to the hotel where the petitioner had a room. The three walked through the hotel lobby. No one had a gun. When they entered Mr. Cross' second-floor room, he put on a tape recording. The co-defendant left the room to purchase cigarettes. According to Mr. Cross, after the co-defendant left, the victim took her clothes off and slipped under the bed sheets. The petitioner sat in a chair across from the bed and fell asleep. When he awoke at approximately 4:00 a.m., the victim had gone but the co-defendant had returned. He further testified that he did not engage in sexual intercourse with the victim during that evening. On cross-examination, he testified that, at some time on April 13, he noticed that the co-defendant had scratches on his face.

Mr. Cross' account of the events of the evening in question were challenged in rebuttal by the state. Through the testimony of Mr. Lerner, an assistant state's attorney, the state submitted that Mr. Cross had told Mr. Lerner during an interview on the morning after the event that the co-defendant had borrowed the petitioner's car on the day in question. The petitioner told Mr. Lerner that he had left his mother's house to find the co-defendant and that around 4:00 a.m. he arrived at the hotel to find the co-defendant in his room. He went up to the room and argued with the co-defendant about the car and why the co-defendant had not returned it. Mr. Lerner testified that Mr. Cross told him that he did not see the victim in the hotel room when he arrived there at 4:00 a.m.

A close friend of the petitioner testified that he had seen the petitioner and the victim together during the evening of the incident.

B. State Proceedings

On April 28, 1978, Mr. Cross and his co-defendant were charged with having committed the crimes of rape and deviate sexual assault. The trial judge appointed two Cook County public defenders to serve as joint defense counsel for both Mr. Cross and his co-defendant. Several months later, the state brought nine additional charges including three counts of aggravated kidnapping, against both defendants.

A trial began on September 11, 1978 and the jury returned verdicts of guilty on all counts but one. However, the trial court entered judgment only on the verdicts of rape, deviate sexual assault, three counts of aggravated kidnapping and one count of aggravated battery. After the denial of all post-trial motions, the trial court sentenced the petitioner to concurrent terms of imprisonment of 30 years for rape and deviate sexual assault and 10 years for each count of aggravated kidnapping. No sentence was imposed for the aggravated battery conviction. On appeal, the Appellate Court of Illinois reversed all but the rape and deviate sexual assault convictions for violation of the Illinois speedy trial act. Further review was denied by the Supreme Court of Illinois.

II

A. Proceedings in the District Court

Mr. Cross then filed this habeas corpus action in the district court, raising five grounds for relief: 1) denial of effective assistance of counsel, 2) denial of new counsel without due process, 3) improper admission of illegally seized evidence, 4) improper presentation of evidence of post-arrest silence, and 5) denial of due process through advising the jury of nine charges against the defendant that should have been dismissed before trial. After consideration of the petition, a United States Magistrate recommended, on October 26, 1983, to the district judge that the claim of ineffective assistance of counsel due to conflict of interest be dismissed, and that a hearing be held to determine if petitioner's right to the effective assistance of counsel was otherwise denied. The district judge agreed and ordered that a hearing be held before the magistrate. The district court's order directed that the following issues be addressed: 1) whether the petitioner's request for a change of counsel was timely, 2) whether defense counsel failed to prepare adequately for trial, and 3) whether any such lack of preparation resulted in prejudice at the outcome of the trial. United States ex rel. Cross v. DeRobertis, No. 82 C 4072 at 5 (N.D.Ill. Dec. 6, 1983) [hereinafter cited as Mem. op. (Dec. 6, 1983) ]; R. 27 at 5. The other claims asserted in the petition--including the claim that Mr. Cross had been denied the effective assistance of counsel because of an actual conflict of interest--were dismissed. ¹ Id. at 6.

After conducting a hearing, the magistrate submitted a Report and Recommendation. She first recommended that the district court find that the petitioner's request for change of counsel had been timely. Second, the magistrate recommended that the district court find that defense counsel failed to prepare adequately for trial and that defense counsel's lack of preparation prejudiced the petitioner's case. No objection was entered with respect to the first recommendation and the district court accepted it. The state did object to the second recommendation and the district court proceeded to analyze the merits extensively.

B. Holding of the District Court

In granting the writ, the district court held that the performance of the two county public defenders was not "reasonably effective." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064-2065, 80 L.Ed.2d 674 (1984). The district court analyzed the evidence contained in the magistrate's report and recommendation with respect to both "components" of the Strickland test--the "performance"...