Westray v. Brookhart

• Decision Date: 10 June 2022
• Docket Number: 20-3260
• Citation: 36 F.4th 737
• Parties: James WESTRAY, Petitioner-Appellant, v. Deanna BROOKHART, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

36 F.4th 737

James WESTRAY, Petitioner-Appellant,

v.Deanna BROOKHART, Respondent-Appellee.

No. 20-3260

United States Court of Appeals, Seventh Circuit.

Argued October 27, 2021

Decided June 10, 2022

Jorge Benjamin Aguinaga, Attorney, Jones Day, Dallas, TX, Noel J. Francisco, Attorney, Brett J. Wierenga, Jones Day, Washington, DC, for Petitioner-Appellant.

Eric M. Levin, Attorney, Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.

Before Manion, Wood, and Brennan, Circuit Judges.

Brennan, Circuit Judge.

James Westray pleaded guilty to the murder of Elizabeth Opatt. He received a death sentence which was later commuted to life imprisonment. In a habeas petition under 28 U.S.C. § 2254, he now challenges his confinement, including its duration. He argues he received ineffective assistance of counsel during sentencing and on remand when he moved to withdraw his guilty plea. According to Westray that claim also requires an evidentiary hearing. For the reasons below, we affirm the district court's denial of these claims.

I. Background

A. The Underlying Crime

Elizabeth Opatt worked at Hurley's Show Bar in Williamson County, Illinois. One morning in August 1998, she was opening the bar by herself when two men, James Westray and Keith Cook, walked in. Westray ordered a drink.

Unknown to Opatt, the men were armed with concealed sawed-off shotguns and planning to rob the bar. When Opatt turned her back, Westray leapt over the counter and forced her to the ground with his gun. Cook locked the front door and guarded Opatt, who by that point was "laying facedown, basically spread-eagled." This left Westray free to break into the back office. After a minute or two, Westray emerged with a rifle and two boxes, one of which contained money. Meanwhile, Opatt remained on the floor in the same position.

According to Cook, Westray then found a broom and, with its handle, began to choke Opatt. He threatened her and demanded that she give him a set of keys to the building. Eventually Opatt stopped moving, either because she had passed out or because she was pretending to be unconscious. Westray found the keys and the two men looked for a way out as they were "done" robbing the place.

Cook and Westray dispute what happened next. Per Cook, Westray told him they "were going to have to shoot" Opatt because she had seen their faces. He suggested they "shoot her at the same time," in order to implicate themselves simultaneously. Westray "counted to three" while Opatt laid motionless "in the same spot" on the floor. He then shot Opatt in the back of the head. "Almost simultaneously," but "immediately after," Cook pulled his trigger and fired a second shot. According to Westray, Cook shot Opatt first, and Westray shot her second solely to implicate himself in the crime as part of the "code among criminals." The two men fled.

Ten days later, Westray and Cook met with an associate who was cooperating with police. During that meeting, they planned another armed robbery. Westray said he would "shoot the lady at the register" and kill a coconspirator to obtain a greater share of the proceeds. When the police confronted them after the meeting, Westray fled. He was later discovered "laying in ... some grass behind a building about a block away." He was generally "defiant and noncompliant" throughout the arrest and "refused to show [the] police officers his hands."

Two months later, while awaiting trial, Westray tried to escape from jail. He managed to climb through the jail's ductwork and make it to the roof, where he was discovered by a maintenance worker and eventually confronted by jail officials. When confronted, Westray jumped off the roof, falling three stories and injuring himself upon impact. He was then caught and hospitalized.

B. Guilty Plea and Sentencing

Westray was charged with a series of crimes for the shooting of Elizabeth Opatt. He was represented by Attorney Larry Broeking throughout his plea and sentencing proceedings. Westray entered an open guilty plea¹ to the charges of first-degree murder and felony murder. Cook also pleaded guilty to first-degree murder, but he did so in a negotiated plea, which included an agreement to testify against Westray.

At the time Westray was sentenced, the state of Illinois used a two-phase process in death penalty cases. 720 ILCS 5/9-1 (1998). During the first phase, the jury determined "whether someone [was] eligible for the death penalty." People v. Todd , 154 Ill.2d 57, 180 Ill.Dec. 676, 607 N.E.2d 1189, 1198 (1992). This step was "nonweighing," meaning the defendant would be eligible for death if the jury unanimously found "at least one valid aggravating factor." Id. But if the jury found there were no enumerated aggravating factors, then the court "sentence[d] the defendant to a term of imprisonment." 720 ILCS 5/9-1(g) (1998).

If the "defendant [was] found eligible for the death penalty," the jury proceeded to the second phase. Todd , 180 Ill.Dec. 676, 607 N.E.2d at 1198. At this phase, the jury weighed the aggravating and mitigating factors to "determine whether the death sentence should in fact be imposed." Id. The Illinois Supreme Court "consistently held that the sentencing body [was] free" during this step "to consider any relevant and reliable evidence in aggravation and mitigation, including the brutal and heinous manner in which the defendant murdered his victim." Id. (citation omitted). "If the jury determine[d] unanimously that there [were] no mitigating factors sufficient to preclude the imposition of the death sentence, the court [would] sentence the defendant to death." 720 ILCS 5/9-1(g) (1998).

Here, the jury found Westray eligible for the death penalty because he murdered Opatt during a robbery. Id. 5/9-1(b)(6)(c) ("A defendant who ... has been found guilty of first degree murder may be sentenced to death if: ... (6) the murdered individual was killed in the course of another felony if: ... (c) the other felony was one of the following: armed robbery, armed violence, robbery.") The jury therefore proceeded to the aggravation-and-mitigation phase.

This second phase spanned three days, during which the State presented aggravation evidence from nine witnesses. The witnesses testified primarily to Westray's extensive criminal history. For example, the State presented evidence that when Westray was 18 years old he participated in a crime spree as part of a group of young men "recruited" to steal. His involvement included shooting a man and injuring a woman during an attempted armed robbery, burglarizing three residences and a hardware store, and discharging a firearm toward an occupied Illinois home. Eventually, Westray cooperated with police, assisting them in their investigation of the group. He later pleaded guilty to attempted robbery, aggravated battery, and armed violence and was sentenced to six years in prison.

The State also presented evidence that between 1997 and 1998, Westray committed two armed robberies before the murder of Opatt, and that he planned to commit a fourth afterward. This evidence included Westray's statements volunteering to "shoot" and kill multiple people associated with the robbery. Finally, the State presented evidence that Westray was noncompliant when confronted by police, showed no remorse for his actions during a subsequent custodial interrogation, and attempted to escape from jail after his arrest.

Next, defense attorney Broeking presented mitigation evidence. He called three witnesses to the stand: Westray, Westray's mother, and a friend of Westray's from high school. Westray's mother, Claudine Kalaboke, testified first. Among other things, she testified that Westray did not know his biological father growing up, and that Westray's stepfather was "physically" and "mentally" abusive to him. She recounted one occasion on which Westray's stepfather hit him so hard he fell on a recliner and broke the back of the chair while "beat[ing] him." At least twice the abuse was so severe that Children and Family Services had to intervene. Despite these issues at home, Westray was able to develop a good relationship with one of his half-brothers. Kalaboke also testified generally about Westray's marriage, children, and the different jobs he had held. The State declined to cross-examine Kalaboke.

Beth Ann Kern, Westray's high school friend, testified next. She said that "it was common knowledge that [Westray] had an abusive childhood" and an "abusive life at home." Kern also explained that she intersected with Westray later in life when he became involved in the drama ministry at her church. That ministry, Kern said, was used "to introduce people to the word of God and to bring people to God through plays and comedy." When asked whether Westray had an "aptitude" for the drama ministry, Kern responded: "He was called to do that by God. That is his—that's what he's to be doing, is to reach people for Christ." Kern also mentioned Westray's departure from the church and his marital struggles. The State again declined to conduct cross-examination.

Westray took the stand as the final mitigation witness. He testified about his abusive childhood, prior criminal activity, and subsequent cooperation with the police. He also discussed his family, his attempts to rehabilitate his life, and his eventual return to crime. Finally, Westray testified about codefendant Cook's role in the alleged crimes and his own remorse for his actions. He said he was "ashamed" for what happened and claimed he could not "even look people in the face" knowing what he "did to [Opatt's] family," as well as his own. For a third time, the state declined to question the witness.

The hearing proceeded to closing arguments. The State emphasized Westray's criminal history, his attempts to elude arrest and escape from jail, and his general lack of remorse. On this last point, the State argued Westray still had "no legitimate remorse" when he took the stand at trial. Rather, his...