Zavala v. Gomez, 020921 ILNDC, 20 C 2787

Docket Nº20 C 2787
Opinion JudgeREBECCA R. PALLMEYER, UNITED STATES DISTRICT CHIEF JUDGE
Party NameAlberto Zavala (R53809), Petitioner, v. David Gomez, Warden, Stateville Correctional Center, Respondent.
Case DateFebruary 09, 2021
CourtUnited States District Courts, 7th Circuit, Northern District of Illinois

Alberto Zavala (R53809), Petitioner,

v.

David Gomez, Warden, Stateville Correctional Center, Respondent.

No. 20 C 2787

United States District Court, N.D. Illinois, Eastern Division

February 9, 2021

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, UNITED STATES DISTRICT CHIEF JUDGE

Petitioner Alberto Zavala, a prisoner at the Stateville Correctional Center, brings this pro se habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 2006 murder and home invasion convictions from the Circuit Court of Cook County. The petition alleges: (1) ineffective assistance of trial counsel during pretrial plea negotiations; and, (2) ineffective assistance of postconviction counsel along with a related challenge to the postconviction process. Petitioner also asks the court to appoint counsel and allow him to pursue discovery. For the reasons explained here, the motions for attorney representation and for discovery are denied. The court denies the § 2254 petition on its merits, and declines to issue a certificate of appealability.

I. Background

A. Lack of State Trial Court Record and Transcript

In support of his answer to the petition, Respondent has submitted the state court appellate briefs and decisions, but has not provided the court with the state trial court record or transcripts. (Dkt. 21.) In an August 31, 2020 filing, Respondent explained these materials are “currently unavailable due to procedures put in place during the COVID-19 pandemic, ” but will be submitted once they are accessible. (Dkt. 21, pg. 1, n.1.) As set forth in the rules, a respondent is expected to submit the “parts of the transcripts that the Respondent considers relevant” in support of the answer. Rule 5(c), Rules Governing Section 2254 Cases in the United States District Courts. When a transcript is unavailable, the respondent may submit a narrative summary of the evidence, and the court may order the respondent to submit any supplemental transcripts deemed necessary. As the Court of Appeals has observed, however, “[w]hile the review of a state court transcript is occasionally necessary in habeas cases, it is certainly not required and is, in fact, quite rare . . . . [T]he decision of whether transcripts are necessary is left to the sound discretion of the district court.” Simental v. Matrisciano, 363 F.3d 607, 612 (7th Cir. 2004). In this case, the court concludes the materials submitted by Respondent are sufficient to allow for resolution of the petition. Respondent did not submit a separate narrative summary, but did submit the state appellate court opinions, which have a presumption of correctness, 28 U.S.C § 2254(e)(1); Tharpe v. Sellers, 138 S.Ct. 545, 546 (2018); Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1 (7th Cir. 2020) (citations omitted), and provide the necessary narrative summary of the relevant evidence.

Petitioner, who has the burden of rebutting through clear and convincing evidence the presumption afforded to the factual findings in the state court opinions, does not dispute the factual information set forth in the state court decisions. His disagreement is with the state court's legal conclusions. Although it is good practice for the full state court record to be before the court when it reviews the habeas corpus petition, Thompson v. Battaglia, 458 F.3d 614, 617 (7th Cir. 2006), the court is within its discretion to rely upon the state appellate court opinions and will do so in this case. Simental, 363 F.3d at 612.

B. Facts of Petitioner's Convictions

Petitioner's murder and home invasion convictions arose out of an $18, 000 debt owed to him by Charles Conrick. People v. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *1 (Ill.App.Ct. Sept. 28, 2018). Petitioner asked Conrick to identify someone who could be robbed in order to reduce the debt. Id. Conrick named the murder victim, Phillip McGovern, and told Petitioner there were cash and drugs in McGovern's home. Id. Petitioner contacted Robert Orosco, who assembled a three-man team to carry out the robbery. Id.

On October 2, 2001, Petitioner and Orosco drove past McGovern's home to confirm he was there. Id. They then drove past the home, down the street to where the robbers were waiting in another car, signaled those robbers to proceed, and then left the scene. Id. One of the robbers knocked on the victim's front door posing as a pizza delivery man. People v. Zavala, No. 1-07-0287 (Ill.App.Ct. May 22, 2008) (Dkt. 21-5, pg. 12.) The group forced their way into the home where a gun fight ensued between McGovern's fiancé and the offenders. Id. McGovern was killed during the gun battle. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *1.

1The police arrested one of the assailants after his fingerprints were found on the pizza delivery bag left at the crime scene. (Dkt. 21-5, pg. 12.) That offender gave a police statement that identified others involved. Id. The victim's fiancé identified the arrested man in a police lineup. Id. Petitioner was arrested and gave a statement to the police in which he admitted to organizing the home invasion. Id. Although he did not see any guns during the evening of the home invasion, and guns were not discussed with the robbers during planning, Petitioner admitted in his police statement that he understood that the robbers would carry guns in order to force their way into the home. Id. at 12-13.

Ultimately, two of the robbers pleaded guilty; the third proceeded to trial and was convicted. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *1. Conrick, who owed the debt to Petitioner, and Orosco, who recruited the robbery team, were found not guilty. Id. Petitioner was found guilty at trial of murder and home invasion based on his accountability for the conduct of the robbers. (Dkt. 21-5, pg. 13.) He received a 20-year sentence with a 15-year enhancement for the use of a firearm during the crime for a total of 35 years on the murder conviction. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *1. He was sentenced to six years for the home invasion, with a 15-year enhancement for the use of a firearm resulting in a 21-year sentence. The 35-year murder sentence and the 21-year sentence for home invasion were ordered to run consecutively for a total sentence of 56 years. Id. The convictions and sentence were affirmed on direct appeal. People v. Zavala, No. 1-07-0287 (Ill.App.Ct. May 22, 2008); People v. Zavala, 897 N.E.2d 262 (Ill. Sept. 28, 2008) (Table) (denial of petition for leave to appeal).

C. Petitioner's Postconviction Proceedings

Through private counsel retained after his appeal, Petitioner sought post-conviction relief, arguing that trial counsel provided ineffective assistance during pretrial plea negotiations. The state trial court held an evidentiary hearing, at which Petitioner, his brother and father, and his two trial attorneys testified. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *2-4. One of the assistant state's attorneys (ASA) who prosecuted the case also testified, and testimony from a second ASA was entered via stipulation. Id. at *3.

Petitioner testified that his trial attorney informed him sometime in April or May 2004 that the prosecution was offering him a 10-year sentence in exchange for his pleading guilty to home invasion and testifying against codefendant Orosco. Id. at *2, *8. According to Petitioner, defense counsel assured him that because he was a first-time offender, he faced no more than 20 years in prison. Id. at *2. His defense attorney allegedly said nothing about sentencing enhancements or consecutive sentences. Id. After consulting his family, Petitioner told his attorney he wanted to reject the 10-year sentence offer. Id. Petitioner claims that his attorney reiterated that he faced a possible 20-year sentence if convicted. Id.

According to Petitioner, in June or July 2005, his attorney informed him of a new plea offer. Id. This time, he testified, the state offered him a 20-year sentence in exchange for a guilty plea without a cooperation requirement. Id. Petitioner says his attorney again told him the most he faced if he went to trial and lost was 20 years, and again made no mention of consecutive or enhanced sentences. Id. Petitioner rejected the offer, telling his attorney it made no sense. Id.

Petitioner's father and brother testified at the evidentiary hearing in support of Petitioner's version of events. Id. at *3. The father testified that Petitioner's attorney spoke to the father directly to tell him about the 10 and 20-year sentence plea agreement offers, and said nothing about any possible sentencing enhancements or consecutive sentences. Id. The brother, who was present at the conversation between the lawyer and father and acted as a translator, also testified that the lawyer did not mention the possibility of enhancement or consecutive sentences. Id. The brother stated that he spoke to Petitioner over the telephone on numerous occasions about the plea offers, and that an enhanced or consecutive sentence was never mentioned in their conversations. Id.

Petitioner's trial attorney's testimony at the evidentiary hearing conflicted with Petitioner's and his family's version of events. The attorney said that the two plea proposals were not formal offers from the prosecution. Id. at *3. He related that he explained to Petitioner that any potential plea agreement would need approval within the prosecution's office. Id. Petitioner submitted a complaint about his lawyer's performance to the Illinois Attorney Registration and Disciplinary Commission and to the Chicago Bar Association; the attorney wrote a letter in response to those complaints and acknowledged, in his testimony at the hearing, that the letter...

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