Post-conviction petition found meritless because evidence of petitioner’s guilt was overwhelming

The appellant in People v. Carlisle, 2019 IL App (1st) 162259, appealed the trial court’s order dismissing his pro se petition for post-conviction relief as frivolous and patently without merit on grounds that the petition stated the gist of a constitutional claim of ineffective assistance of appellate counsel. Id. at ¶ 2. The appellate court was unable to find that trial or appellate counsel was ineffective and therefore affirmed the decision of the trial court.

Prior to engaging in their review of the claims brought by appellant, the appellate court noted that any defendant raising a claim concerning appellate counsel must “show both that appellate counsel’s performance was deficient and that, but for counsel’s errors, there is a reasonable probability that the appeal would have been successful.” Id. at ¶ 3. As a result, the court held that in order to succeed on the claim raised on appeal, appellant must show both (1) ineffective assistance of trial counsel and (2) ineffective assistance of appellate counsel, because any court must consider first whether trial counsel was ineffective. Thus, the court considered first whether trial counsel was ineffective, even though appellant did not raise that claim.

Carlisle was found guilty at jury trial of attempted murder and sentenced to 60 years DOC. Id. at ¶ 1. At trial, the State’s evidence established that Carlisle fired two rounds from sawed-off shotgun at police officers, who were called to investigate a disturbance. Carlisle fled the scene and was subsequently arrested. Id. at ¶ 6. The State’s evidence consisted of the testimony of eight witnesses, including the injured officer, arresting office, a forensic scientist and the assistant State’s Attorney. Id. at ¶ 8.

At the conclusion of the State’s case, defense counsel moved for a directed verdict, which was denied. All of the State’s exhibits were subsequently entered into evidence without objection by defense counsel. Id. at ¶ 37.  The defense’s case consisted of two key witnesses: (1) Guadalupe Vazquez, defendant’s then-girlfriend and now wife, and (2) defendant. Id. at ¶ 38. At the conclusion of the trial, the jury returned a verdict of guilty against Carlisle for five counts of attempted first-degree murder, one count of aggravated battery with a firearm, and one count of aggravated discharge of a firearm. Id. at ¶ 50. Carlisle unsuccessfully argued his motion for a new trial prior to being sentenced to 60 years DOC. Id. at ¶ 52.

On direct appeal, Carlisle claimed (1) that the trial court erred by barring the testimony of the defense’s proposed expert witness, Donald Mastrianni, a gun store owner who would have opined that defendant’s sawed-off shotgun was not deadly at the distance from which it was fired; (2) that defendant received ineffective assistance of counsel because his trial counsel failed to lay a proper foundation to introduce into evidence a supplementary investigation report from Detective Christopher Pavini, which defendant claims would have impeached the testimonies of Vicari and Carr; and (3) that the mittimus should be corrected to reflect only two counts of attempted first degree murder and that the counts of aggravated battery with a firearm and aggravated discharge of a firearm should be merged into the two counts of attempted first degree murder. Id. at ¶ 54. The State and court agreed with the third claim and corrected the mittimus accordingly. However, neither of the other two claims brought by appellant were persuasive to the court, resulting in the court affirming his conviction and sentence. Id. at ¶ 54.

During post-conviction proceedings, the sole issue raised by Carlisle was whether his appellate counsel was ineffective for failing to raise a claim about his trial counsel’s ineffectiveness with respect to certain photographs. Id. at ¶ 56. As noted by the court, the first step in making a determination in this matter was to consider whether trial counsel was in fact ineffective. In light of the overwhelming evidence of appellant’s guilt, the trial court found the petition frivolous and patently without merit. Id. at ¶ 59. This appeal followed.

The court’s review of this appeal was conducted de novo. On appeal, Carlisle asserted two layers of ineffective assistance of counsel. First, he asserts that counsel on his direct appeal was ineffective for failing to assert the ineffective assistance of his trial counsel. However, the court noted that counsel on his direct appeal did, in fact, assert the ineffective assistance of trial counsel on different grounds. Id. at ¶ 71. Appellant claimed on this appeal that trial counsel was additionally ineffective for failing to object to the publication in the jury room of photographs of a bloody police vest and radio.

The appellate court looked to the two-prong test established in Strickland v. Washington, which requires an appellant to prove both (1) his attorney’s actions constituted errors so serious as to fall below an objective standard of reasonableness and (2) absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. Id. at ¶ 74. The court further determined that one prong of the Strickland test does not need to be considered if another prong cannot be satisfied.

On the second prong of the Strickland test, the court held it need not determine if trial counsel was ineffective in failing to object to the publication in the jury room of the photographs as the “overwhelming evidence of defendant’s guilt in this case precludes defendant from being capable of showing that there was a reasonable probability that the outcome of this case would have been different if the photographs had not been published in the jury room.” Id. at ¶ 81. The court concluded that “Defendant’s admission at trial that he was the shooter, plus the State’s evidence of officers with bulletproof vests stating, ‘Police,’ engaging in the uniquely police function of patting down and arresting a suspect, while standing next to armed police vehicle…” overwhelmingly established that he knowingly shot at police officers. As such, the court did not make a determination as to whether trial counsel’s performance was deficient. Id. at ¶ 85.

Ultimately, the appellate court affirmed the trial court’s dismissal of Carlisle’s pro se post-conviction petition because it could not find an arguable basis for either prejudice or deficient performance by either counsel. Id. at ¶ 97.

Illinois Supreme Court grants leave to appeal in several post-conviction cases

The Illinois Supreme Court granted petitions for leave to appeal in a slate of interesting post-conviction cases on September 25, 2019. This means that the court has agreed to hear these appeals, and that its decision in these cases will be binding on all lower appellate and trial courts.

People v. Green, 2019 IL App (2d) 160217-U (link to original opinion)

Defendant argued that the trial court erred by denying his post-conviction petition because he established that defense counsel had a per se conflict of interest where counsel previously represented the intended victim of the murder, and defendant neither knew about the conflict nor waived it. The appellate court affirmed and the petitioner is seeking reversal.

People v. Stoecker, 2019 IL App (3d) 160781 (link to original opinion)

Defendant appealed the dismissal of his petition for relief from judgment, arguing that (1) his due process rights were violated where the court did not give him a meaningful opportunity to respond to the State’s motion to dismiss and the court held an ex partehearing on the motion and (2) his counsel did not adequately represent him. The appellate court affirmed and the petitioner is seeking reversal.

People v. Reed, 2019 IL App (4th) 170090 (blog post on opinion)

After an evidentiary hearing, the circuit court denied post-conviction relief to defendant, who is serving a prison sentence of 15 years for armed violence. He appealed, arguing that newly discovered evidence he presented to the court in the post-conviction hearing proved, clearly and convincingly, that he actually was innocent of armed violence despite his earlier negotiated guilty plea to that offense. The appellate court held that petitioner was bound by his guilty plea and that his claim of actual innocence could not be entertained. The petitioner is seeking reversal.

People v. Knapp, 2019 IL App (2d) 160162 (blog post on opinion)

Defendant filed a post-conviction petition arguing that his trial counsel provided ineffective assistance to him by misleading the defendant into giving up his right to testify. The appellate court affirmed the trial court’s first stage dismissal of defendant’s post-conviction petition where petition failed to state that defendant told trial counsel that he wanted to testify and where record rebutted petitioner’s claim. The petitioner is seeking reversal.

People v. Jackson, 2018 IL App (1st) 171773 (original opinion)

Defendant filed a post-conviction petition alleging actual innocence, arguing that his conviction was obtained by the prior inconsistent statements of three witnesses, who testified that their inconsistent statements resulted from police coercion, which was documented in that police department. The trial court denied the petition, and the appellate court affirmed. The petitioner is seeking reversal.

An appellate court lacks the supervisory authority that would allow it to review an as-applied constitutional claim that was not raised in a post-conviction petition

The appellant in People v. Allen, 2019 IL App (1st) 162985, appealed the decision of the Circuit Court of Cook County denying leave to file his third successive pro se petition on the grounds that appellant’s mental illness renders him incapable of meeting the threshold burden of showing an arguably meritorious claim.

Appellant Allen was convicted of home invasion and the first-degree murder of his sister, Debbie Whitebear. Id. at ¶ 4. During appellant’s trial proceedings, Allen was diagnosed with a “psychotic delusional disorder.” Id. at ¶ 6. Appellant’s diagnosis, made following the examination and testimony (at a fitness hearing) of four psychologists and psychiatrists, stemmed from his theory of the case which stated that he had “killed his sister to protect their elderly mother from her abuse”; that his siblings had conspired to “hide from him the existence of a real estate trust which held the property of a man named Carl Lewis”, whom he believed was his real father; and, that Claude W. Allen Jr. his purported father, was a “serial killer.” Id. at ¶ 4. Appellant Allen also filed a pro se “Motion for Withdrawal of the Public Defender,” in which he argued that the public defender was “in direct collusion with the Assistant State’s Attorney.” Id. at ¶ 5. Appellant maintained these and other theories throughout pre-trial, trial and post-trial proceedings.

After appellant was restored to fitness and determined to be fit for trial, he filed a motion to proceed pro se and proceeded to represent himself in his trial in November 2007. Id. at ¶ 10. Ultimately, the “jury found petitioner guilty of first-degree murder and home invasion.” Id. at ¶ 14. Following his conviction, appellant Allen filed a series of post-trial motions maintaining the aforementioned theories regarding his stolen inheritance, among other newly posited theories. The court denied the motions and sentenced him to “60 years’ imprisonment for the murder and a consecutive term of 25 years for home invasion.” Id. at ¶ 16.

On direct appeal, appellant argued that he was not mentally competent to represent himself pro se and that his waiver of trial counsel was invalid. The Appellate Court of Illinois First Judicial District affirmed the judgment of the circuit court. Id. at ¶ 17. Following the appellate court’s ruling, appellant unsuccessfully petitioned the Illinois Supreme Court for leave to appeal, which was denied on September 29, 2010. The United States Supreme Court then subsequently denied appellant’s request for a writ of certiorari (Allen v. Illinois, 563 U.S. 1034 (2011)). Id. at ¶ 17.

Following two unsuccessful successive post-conviction petitions, on November 9, 2015, appellant filed a third successive post-conviction petition and a motion for expert assistance, which constitute the focus of the current appeal before the Appellate Court of Illinois First Judicial District. Id. at ¶ 23. The petition, which alleged the ineffective assistance of counsel in both of his previous post-conviction petitions, was denied by the court because “petitioner [Allen] had not established any prejudice from the alleged failures of his appellate counsel.” Id. at ¶ 26. On December 1, 2016, the court granted Allen leave to file a late notice of appeal from the circuit court’s order denying his motion for expert assistance and denying him leave to file his third successive petition. Id. at ¶ 26.

In the court’s analysis of the appeal, the primary issue of focus became whether appellant was so mentally ill that he was “incapable of advancing past the first stage of postconviction proceedings without the assistance of counsel.” Id. at ¶ 28. The court added that if appellant’s mental illness did in fact prevent him from proceeding without the assistance of counsel, they must determine the appropriate remedy.

The court analyzed the relative merit of appellant’s claims that his federal and/or state constitutional rights had been substantially violated via the procedural mechanism for such claims provided under the Post Conviction Hearing Act. As noted by the court, “[t]he Act allows inquiry into constitutional issues arising in the original proceeding which have not been raised and could not have been adjudicated on direct appeal. Therefore, issues that could have been raised on direct appeal are forfeited” and “any claim not presented in an original or amended petition is waived.” Id. at ¶ 29.

Of the three stages of proceedings under the Act, the first is especially pertinent to the court’s analysis because it is the stage that determines whether “the petition is frivolous or is patently without merit” and whether the petitioner is able to proceed to the second stage of proceedings, which would result in the appointment of counsel. Id. at ¶ 31.

The State Appellate Defender, on behalf of appellant, abandon’s all previous claims of error presented by appellant and did not present an argument that appellant stated a potentially meritorious claim in his most recent petition, as would have been required to proceed past the first stage of proceedings under the Post Conviction Hearing Act. Rather, the State Appellate Defender argued that “petitioner is so mentally ill that he is incapable of making a pro se showing of an arguably meritorious claim” and “because [he] does not acknowledge his illness and because he harbors prosecutory and paranoid delusions, he is incapable of raising any issues that are not “fantastic or delusional.” Id. at ¶ 33. As such, the State Appellate Defender argued that appellant is unable meet the threshold requirements to receive the appointed counsel that he “needs to present his potentially valid claims” and “is effectively denied meaningful access to the courts,” rendering the Act “unconstitutional as applied to him.” Id. at ¶ 33.

The relief requested by the State Appellate Defender was the reversal of the order denying petitioner’s leave to file his third successive post-conviction petition and the appointment of counsel to assess whether petitioner has any potentially meritorious claims. Id. at ¶ 36.

However, the court determined, regardless of fundamental fairness, it was unable to grant the requested relief because the “as-applied constitutional challenge has been waived” under the aforementioned guidelines of the Act. Id. at ¶ 37. Ultimately, the court held that unlike the Illinois Supreme Court, the appellate court lacks “the supervisory authority that would allow us to review an as-applied constitutional claim that was not actually raised in the petition.” Id. at ¶ 40.

Thus, because the as-applied constitutional challenge was not raised in the petition at the circuit court level, the court was compelled to find that it cannot be raised in this appeal and affirmed the judgement of the circuit court.

Being represented by counsel on post-conviction helps to avoid waiver issues. (People v. Reed, 2014 IL App (1st) 122610)

People v. Reed, 2014 IL App (1st) 122610 (December 31, 2014) (Court opinion corrected 2/3/15.) Cook Co., 5th Div. Affirmed. A jury found defendant Devin Reed guilty of first-degree murder, armed robbery, and residential burglary. Reed’s murder conviction and natural life sentence were affirmed on appeal, but his convictions and sentences for armed robbery and burglary were reversed. Reed then filed a pro se post-conviction petition, which was dismissed by the trial court at first-stage as being frivolous and patently without merit. This appeal followed.

Reed’s post-conviction petition claimed that trial counsel was ineffective for failing to file a motion to suppress statements that Reed made to an ASA. Reed also asserted other garden variety claims of ineffective assistance of counsel. Reed also claimed that the trial court erred by allowing the State to engage in various forms of misconduct. Reed claimed that appellate counsel was ineffective because, among other claims, appellate counsel failed to raise the ineffective assistance of trial counsel issues, the trial court’s errors, and the prosecutor’s alleged misconduct.

On appeal, “Reed first contends his appellate counsel was ineffective in failing to argue the prosecutors and police failed to honor Reed’s requests to remain silent and for counsel, and interrogated him in violation of his fifth amendment rights. Reed also contends his appellate counsel was ineffective for arguing that, pursuant to Smith and People v. Bailey, 2013 IL 113690, the treatment of his general guilty verdict as a verdict of felony murder made him legally ineligible for a natural life sentence.” ¶ 41.

The State responded that “Reed’s petition not only fails to state the gist of these claims, but also fails to raise them at all, resulting in forfeiture of these claims on appeal.” ¶ 43. Section 725 ILCS 5/122-3 address the issue of waiver: “Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.”; People v. Pendleton, 223 Ill. 2d 458, 475 (2006) (reiterating that a claim not raised in a postconviction petition cannot be raised for the first time on appeal). This court lacks the authority to excuse an appellate forfeiture caused by the failure of a litigant to include issues in his or her postconviction petition. See People v. Jones, 213 Ill. 2d 498, 507-08 (2004). “As our supreme court noted in Jones, attempts by counsel to raise claims for the first time on appeal from the first-stage dismissal of a postconviction petition are understandable, but simply not permitted under the Act.” ¶ 43.

Reed’s ineffective assistance of appellate counsel claims were argued on appeal for the first time, instead of being brought in his initial pro se petition. As our supreme court noted in Jones, attempts by counsel to raise claims for the first time on appeal from the first-stage dismissal of a postconviction petition are understandable, but simply not permitted under the Act: “[T]he typical pro se litigant will draft an inartful pleading which does not survive scrutiny under the ‘frivolity/patently without merit’ standard of section 122-2.1, and it is only during the appellate process, when the discerning eyes of an attorney are reviewing the record, that the more complex errors that a nonattorney cannot glean are discovered. The appellate attorney, not wishing to be remiss in his or her duty, then adds the newly discovered error to the appeal despite the fact that the claim was never considered by the trial court in the course of its ruling. *** [T]he attorney is zealously guarding the client’s rights and is attempting to conserve judicial resources by raising the claim expeditiously at the first available chance. These goals are laudable, but they nonetheless conflict with the nature of appellate review and the strictures of the Act.” Jones, 213 Ill. 2d at 504-05. ¶ 43.

Accordingly, the Reed court held that “Reed’s petition does not clearly set forth the claims of ineffective assistance of trial counsel now raised on appeal, resulting in forfeiture of these claims on appeal” for reasons stated above. The court then engaged in an alternative discussion of the merits of defendant’s claims, but the merits are purely academic at this point because the defendant’s claims are barred by waiver.

“In sum, the issues Reed’s counsel attempted to raise on appeal are forfeited because Reed failed to raise them in his postconviction petition. Even if Reed’s claims were not forfeited, they are frivolous and patently without merit, because Reed failed to attach supporting material and appellate counsel was not required to anticipate Bailey, which was decided after Reed’s direct appeals had concluded. In addition, Reed’s natural life sentence is not void because our supreme court’s decision in Bailey announced a new rule of constitutional procedure that does not apply retroactively to these postconviction proceedings. For all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.” 
¶ 94.

This case underscores the importance of filing counseled post-conviction petitions. Not only does a counseled post-conviction petition automatically survive summary dismissal (where the trial court dismisses the petition without input from counsel, argument, further briefing, etc.), but it also provides the defendant with an opportunity to avoid forfeiture of important issues on appeal that pro se defendants typically cannot articulate, whether it is through a lack of skill and experience, a lack of resources and access to information, or both. Appellate lawyers—especially OSAD lawyers—are very, very adept at spotting and developing issues from the record, but as Reed shows, this exercise will be rendered largely academic if the defendant’s claims are not properly preserved and articulated at the trial court level, before it reaches the desk of the appellate practitioner.

Successive post-conviction petitions must meet cause-and-prejudice test (People v. Wilson, 2014 IL App (1st) 113570)

People v. Wilson, 2014 IL App (1st) 113570 (September 12, 2014) Cook Co., 5th Div. Affirmed. The defendant in Wilson was convicted of first degree murder following a shooting. Wilson was subsequently sentenced to 60 years in prison. On May 28, 2009, defendant filed an initial pro se post-conviction petition claiming that trial counsel was ineffective for failing to file a notice of appeal. The Petition was supported by an affidavit from trial counsel admitting error. The trial court granted defendant’s post-conviction petition based on this single issue and allowed defendant to file a late notice of appeal. The conviction and sentence were affirmed on appeal.

Defendant filed a second pro se post-conviction petition on June 24, 2011. Wilson’s second post-conviction petition raised numerous claims of ineffective assistance of appellate counsel based on appellate counsel’s failure to raise various claims in defendant’s direct appeal. The trial court dismissed the second petition, finding that defendant’s second petition was a successive petition under the Act and failed to meet the “cause-and-prejudice” test necessary for obtaining leave to file a successive petition under the Act. Specifically, the circuit court found defendant failed to: (1) identify any objective factor which impeded his efforts to raise the claims in the earlier petition; and (2) demonstrate any prejudice inured from his failure to assert the claims earlier because “[h]ad they been presented in the initial petition, there is scant probability that petitioner would have prevailed.” Wilson at ¶ 27. Defendant appealed the trial court’s dismissal of the petition, arguing that the second post-conviction petition was not a “successive petition” because he only sought to reinstate his right to appeal, and that his second petition presented a gist of a constitutional claim such that advancement to second stage proceedings was required.

Generally, the Act contemplates the filing of only one petition. 725 ILCS 5/122-1(f) (West 2010). Successive petitions are disfavored and, therefore, to proceed on a successive petition a petitioner must first obtain leave of court by either asserting actual innocence or satisfying the cause-and-prejudice test. People v. Sutherland, 2013 IL App (1st) 113072, ¶ 16; 725 ILCS 5/122-1(f) (West 2010). To demonstrate cause, a defendant must identify “an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings.” Id. To establish prejudice, a defendant must demonstrate “that the claim not raised *** so infected the trial that the resulting conviction or sentence violated due process.” Id. Wilson at ¶ 33.

Defendant relied on People v. Little, 2012 IL App (5th) 100547, ¶ 19, to support his proposition that where a defendant files an initial postconviction petition seeking only to reinstate the right to a direct appeal that was lost due to counsel’s ineffectiveness, a subsequent petition is not a successive petition under section 122-1(f) of the Act. Wilson at ¶ 34. The State contended that Little was not implicated in this case because the circuit court ruled on defendant’s petition within 90 days and complied with People v. Hodges, 234 Ill. 2d 1 (2009). Wilson at ¶ 35.

The appellate court agreed with the defendant that Little controlled under the facts in this case, and that because defendant’s initial petition only sought to restore his right to appeal, the second petition should have been treated as a first petition, and that, accordingly, defendant was not required to satisfy the procedural prerequisites for filing a successive petition in order for his claims to be considered on the merits.

However, the appellate court can affirm on any basis set forth in the record. People v. Quigley, 365 Ill. App. 3d 617, 619 (2006). Reviewing the claims set forth in defendant’s Petition, the appellate court agreed with the trial court that they were frivolous and patently without merit, such that first stage dismissal was still appropriate. In sum, even though the trial court erred by characterized defendant’s second petition as a successive petition, the trial court correctly dismissed the petition based on the merits, or lack thereof.

File the notice of appeal now, and ask questions later? (People v. Terefenko, 2014 IL App (3d) 120850)

People v. Terefenko, 2014 IL App (3d) 120850 (July 24, 2014). Will Co. Appeal dismissed. (Modified upon denial of rehearing 9/12/14.). The defendant, a Polish national, plead guilty to burglary and attempted burglary, received TASC probation, and then violated probation. He was then sentenced to 42 months imprisonment. Defendant was released to ICE, which began removal proceedings.

The defendant filed a post-conviction petition claiming that his attorney failed to advise him of immigration consequences of the plea based on Padilla v. Kentucky. The court dismissed the petition, but the appellate court remanded the case for an evidentiary hearing. By the time the case was remanded for an evidentiary hearing on July 13, 2012, defendant had been deported to Poland and did not appear. He was, however, present by appointed counsel. The court denied the defendant’s petition on August 20, 2012. The court thereafter set a status hearing on September 19, 2012, for defense counsel to file a notice of appeal. Counsel failed to appear, and the court set the case over for the next day, when counsel failed to appear again. The court, sua sponte, entered a written order extending the deadline for filing post-trial motions to October 4, 2012. Counsel also failed to appear at this hearing. The Court appointed the appellate defender and ordered it to file a notice of appeal, with the appellate defender did on October 5, 2010.

The appellate court first had to determine whether it had jurisdiction to hear defendant’s appeal when the notice of appeal was filed more than 30 days after final judgment. Ultimately, the Terefenko court ruled that the notice of appeal was untimely and that it did not have jurisdiction. Illinois Supreme Court Rule 606(b) requires that “[T] he notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from or if a motion directed against the judgment is timely filed, within 30 days after the entry of the order disposing of the motion.” The court’s analysis was simple. The filing deadline for the notice of appeal was September 19, 2012, thirty days after final judgment. The notice of appeal had not been filed until October 5, 2012, and was therefore untimely. The defendant argued that the filing deadline had been extended by the trial court because the trial court twice extended the deadline for filing of post-trial motions. In support of this argument, the defendant cited People v. Church, 334 Ill. App. 3d 607 (2002), which involved a defendant’s appeal from a guilty plea. The Church court held that “[a] trial court has the inherent authority, upon proper application and showing of good cause, to grant an extension of time for filing a motion to reconsider sentence or a motion to withdraw guilty plea.” Terefenko, ¶ 18, citing id. at 614. The court, even assuming that Church applied to these facts, held that Church did not apply because good cause was not shown for granting an extension of time for filing.

The defendant also argued that the late filing should be excused because the court failed to comply with Supreme Court Rule 651(b) by failing to inform the defendant in Poland that he had the right to appeal. This argument also failed because the Court held that defendant had knowledge of the post-conviction proceedings and that it was his responsibility to stay abreast of them.

The error here could have been easily avoided. It is clear from the plain language of Illinois Supreme Court Rule 606(b) that the notice of appeal must be filed with 30 days. It would not have been difficult to file this single document or ask the court to direct he circuit clerk to file the notice of appeal on the defendant’s behalf. It is unclear why counsel failed to show up to the three status hearings following the denial of the petition, but counsel could have avoid the whole snafu by simply filing the notice of appeal immediately after receiving the written order denying the petition. It is understandable the counsel would have wanted to ask his client whether he wanted to appeal prior to filing the notice, but if he was in Poland and the court did not know where defendant was, how did counsel expect to do that? The more prudent course of action would have been for counsel to file the notice of appeal and then contact the defendant, if possible. If it turns out that the defendant did not want to appeal, then the defendant could seek to have the appeal dismissed on his own motion in the appellate court, after the appellate court had proper jurisdiction over the appeal. If the defendant did want to appeal, then the appellate court could properly consider the appeal on the merits, which it couldn’t do here.

Ineffective assistance claims should be brought in §2255 petitions, not direct appeals (United States v. Rucker, No. 13-2760 (7th Cir.))

United States v. Rucker, No. 13-2760 (7th Cir.). Decided August 19, 2014. Rucker purchased two kilos of cocaine from a man named Alvarez, and was indicted six weeks later with conspiracy to distribute a controlled substance and other narcotic offenses. Rucker plead guilty to attempting to possess, with the intent to distribute, two kilos of cocaine. An additional fifteen kilos of cocaine were attributed to Rucker at sentencing under relevant conduct. The government proved up the relevant conduct through Alvarez’s testimony at Rucker’s sentencing hearing.

The parties entered an agreed stipulation in which the parties agreed that 3.5 to 5 kilos of cocaine should be attributed to Rucker, instead of the original fifteen. The stipulation resulted in a two-point base offense level increase, resulting in a range of 78 to 97 months. The Court imposed a sentence of 87 months.

Rucker then encountered Alvarez in a holding cell eight days after he was sentenced. Alvarez was shackled but Rucker was not. Predictably, Rucker slammed Alvarez’s head against the wall, which sent Alvarez into convulsions. Rucker was thereafter charged with witness retaliation, and the case went to trial, after which Rucker was convicted. The guideline range was 210 to 262 months, but was capped at 240 by the statutory maximum. The Court sentenced him to 240 months to be served consecutive to his narcotics sentence.

Defendant’s arguments that the evidence was insufficient to sustain a conviction and that the sentence was unreasonable fell flat. Rucker also argued that trial counsel was ineffective because trial counsel stipulated that Alvarez’s testimony at Rucker’s sentencing contributed to a 24-month increase in Rucker’s sentence and that trial counsel failed to move for a judgment of acquittal at the close of evidence. These claims ultimately failed, too.

Before reaching the ineffective assistance claims, the Court correctly noted that ineffective assistance of counsel claims are “ill-suited to resolution on direct appeal, as it typically requires evaluation of the circumstances that confronted counsel and the reasoning that informed his decisions and defense strategy. E.g., United States v. Jones, 635 F.3d 909, 916 (7th Cir. 2011). Consequently, a “defendant who presents an ineffective-assistance claim for the first time on direct appeal has little to gain and everything to lose,” United States v. Taylor, 569 F.3d 742, 748 (7th Cir. 2009) (quoting United States v. Cooke, 110 F.3d 1288, 1299 (7th Cir. 1997)), as the record is unlikely to lend sufficient support to such a claim, and by raising it on direct appeal, the defendant will be foreclosed from pursuing the same claim on collateral review, e.g., United States v. Wallace, 753 F.3d 671, 676 (7th Cir. 2014).”

Despite the veiled warning from the Court at oral arguments, Rucker also raised the ineffective assistance claim on direct appeal. Consequently, the Court considered it and rejected it because its review of the evidentiary support for the claim was limited to what was in the trial court record (even though ineffective assistance claims usually allege error that occurred outside of the record). The Court was therefore hamstrung by the record and denied the claim. Unfortunately for Rucker, because this claim has already been adjudicated, it is res judicata for purposes of a §2255 petition, where the defendant could have fleshed out these claims with affidavits and other evidence that was not in the trial court record before the court.