Etherly v. Bartley et al
MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 6/20/2011:Mailed notice(mpj, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
United States, ex rel. ARIS ETHERLY
RANDY DAVIS, Warden,
No. 07 C 57
MEMORANDUM OPINION AND ORDER
On the night of July 13, 1995, Jeremy Rush was shot and killed
in a gang-related incident. Petitioner Aris Etherly, then fifteen,
involvement in the shooting and leading police officers to the weapon
used in the crime, was tried and convicted of first degree murder.
After exhausting all of his state remedies, Etherly petitioned this
court for a writ of habeas corpus pursuant to 22 U.S.C. § 2254.
granted that petition on August 28, 2009, based on my conclusion that
Etherly’s confession was voluntary.
The Seventh Circuit reversed
that decision and remanded the case to address the remaining claims
Etherly raised in his habeas petition. These claims are: 1) that
Etherly was denied a fair trial because the trial court did not voir
dire the venire about potential gang bias; and 2) that trial counsel
was ineffective for failing either to insist that the court probe the
gang bias issue on voir dire or to question the venire herself on
The Illinois Appellate Court rejected both of these
claims on the merits.
Etherly argues that the Illinois Appellate Court unreasonably
determined that the trial court did not violate his right to due
process and an impartial jury by failing to voir dire potential
jurors about gang bias.
Etherly acknowledges, however, that a trial
court has broad discretion in its handling of voir dire, “subject to
the essential demands of fairness,” as indeed the very cases on which
he relies have held.
Morgan v. Illinois, 504 U.S. 719, 730 (1992);
Rosales-Lopez v. U.S., 451 U.S. 182, 189 (1981); Ham v. South
Carolina, 409 U.S. 524, 528 (1973); Aldridge v. United States, 283
U.S. 308, 310 (1931).
Etherly further concedes that “litigants do
not have a right to have a particular question asked,” Gardner v.
Barnett, 199 F.3d 915, 921 (7th Cir. 1999) (citing Ham, 409 U.S. at
527), and that the Constitution does not automatically require
inquiry into prospective jurors’ potential gang bias.
Appellate Court unreasonably applied Morgan, Rosales-Lopez, Ham, and
Aldridge by declining to hold that the trial court violated Etherly’s
due process and fair trial rights when it failed to probe each
potential juror on the issue of gang bias.
Etherly focuses on the Illinois Appellate Court’s treatment of
the following exchange:
THE COURT: Do you want me to ask the question about gangs then?
DEFENSE COUNSEL: Which would be?
THE COURT: There may be some evidence that gang or gang
activity may be involved in this case.
Would that prevent you
from giving either side a fair trial?
DEFENSE COUNSEL: Sure.
People v. Etherly, No. 1-01-4166 (Ill. App. 1st Dist. 2006) (“Rule
23 Order”) at 8-9.
The Illinois Appellate Court held that although the trial court
did not ultimately pose this or any other question relating to
possible gang bias, it did not violate the petitioner’s right to an
The appellate court explained that while the trial
court did not itself ask any gang bias questions, it was clear from
opportunity to do so.1
The appellate court thus distinguished the
case from People v. Strain, 742 N.E.2d 315 (Ill. 2000), in which the
trial court’s refusal to ask gang bias questions--despite defense
counsel’s request that it do so--had denied the defendant “an
informed and intelligent basis on which to assert challenges for
cause or to exercise peremptory challenges.”
quoting Strain, 742 N.E.2d at 323.
Rule 23 Order at 12,
The Illinois Appellate Court
For example, as discussed in the next section, after a particular
juror stated that his garage had been sprayed by “gang-bangers,”
the trial court “made it clear that defense counsel would be
allowed to ask additional questions regarding the gang graffiti.”
Rule 23 Order at 21.
viewed the trial court’s omission in this case as consistent with
Strain’s requirement that “when testimony regarding gang membership
defendant’s trial, the defendant must be afforded an opportunity to
question the prospective jurors, either directly or through questions
submitted to the trial court, concerning gang bias,” explaining that,
“unlike Strain, there was no refusal by the trial court to ask gang
bias questions of the jury.”
Rule 23 Order at 14-15.
unreasonable because it relied on an “implausible” distinction
“submitted” by defense counsel and the trial court’s “failure” in
this case to ask a question “requested” by Etherly’s counsel.
even assuming that counsel’s tepid response to the trial court’s
offer to ask “the question about gangs” was tantamount to a request,
the appellate court’s conclusion that “there was no refusal by the
trial court to ask gang bias questions” was based on the record
evidence--undisputed by Etherly–that the trial court afforded defense
counsel herself the opportunity to do so.
That is, the appellate
court concluded that the trial court did not so much “refuse” to ask
gang bias questions as it left the decision whether to do so in the
hands of defense counsel. Etherly cites no authority to suggest that
the trial court violated any clearly established constitutional
principle by doing so.
Aldridge, Ham, Rosales-Lopez and Morgan to a different context in
which they should apply.
But this argument is simply a variation on
the previous one and again fails to understand the basis for the
principles underlying Strain had not been violated.
Finally, Etherly argues that “the fact that the Supreme Court
has not yet addressed every subset of conceivable biases,” and thus
has not specifically held that an inquiry into potential gang bias
is required where appropriate, does not compel the conclusion that
the trial court did not violate clearly established constitutional
precedent. But, “[t]he more general the rule, the more leeway courts
have in reaching outcomes in case-by-case determinations,” Harrington
v. Richter, 131 S. Ct. 770, 786 (2011). The Illinois Appellate Court
thus had broad discretion to determine that the trial court’s
handling of voir dire was consistent with the general principle of
Aldridge, Ham, Rosales-Lopez and Morgan that voir dire must meet “the
essential demands of fairness.” Etherly has not shown that it
exercised that discretion unreasonably in this case.
Because I conclude that the Illinois Appellate Court did not
unreasonably determine that the trial court did not violate Etherly’s
right to due process and a fair trial, I need not proceed to the
issue of harmlessness.
I thus turn to Etherly’s claim that his trial counsel was
ineffective for failing either to insist that the court voir dire the
jurors about potential gang bias or to probe the issue of gang bias
Because the Illinois Appellate Court applied the correct
legal standard of Strickland v. Washington, 466 U.S. 668 (1984), to
this claim, my review of its decision is “doubly deferential.”
Cullen v. Pinholster, 131 S. Ct. 1388 (2011).
That is, I must first
take “a highly deferential look at counsel’s performance,” id. at
1403, in which “counsel is strongly presumed to have rendered
exercise of reasonable professional judgment.” Strickland, 466 U.S.
Then, I must view Etherly’s claim through the “deferential
lens of § 2254(d).”
Pinholster, 131 S. Ct. at 1403 (quoting Knowles
v. Mirzayance, 129 S.Ct. 1411, 1418, n. 2 (2009)).
That means that
the “pivotal question” is not whether “defense counsel’s performance
fell below Strickland’s standard,” but whether “the state court’s
application of the Strickland standard was unreasonable.” Harrington
v. Richter, 131 S.Ct. 770, 785 (2011).
On top of this double
deference, I must bear in mind that “because the Strickland standard
is a general standard, a state court has even more latitude to
Mirzayance, 129 S.Ct. at 1420.
See also Harrison, 131
S.Ct. at 786 (“[t]he more general the rule, the more leeway courts
have in reaching outcomes in case-by-case determinations.”)
Supreme Court emphasized in Harrison: “If this standard is difficult
to meet, that is because it was meant to be.” 131 S.Ct. at 786.
Although § 2254 “stops short of imposing a complete bar on federal
court relitigation of claims already rejected in state proceedings,”
a federal court’s authority to issue a writ of habeas corpus under
that section is reserved for cases “where there is no possibility
fair-minded jurists could disagree that the state court’s decision
conflicts with this Court’s precedents.”
This is not such a
The Illinois Appellate Court discussed both prongs of the
Strickland standard and determined that Etherly had shown neither
that his trial counsel’s performance was constitutionally defective,
nor that he had been prejudiced by any shortcomings in his counsel’s
representation. As to the first prong, the court noted that “defense
particular subject is considered to be one of trial strategy.” Rule
23 Order at 18, citing People v. Williams, 295 Ill. App. 3d 456, 469
(Ill. App. Ct. 1998) (applying Strickland).
The court further
observed that defense counsel may plausibly decide, as a matter of
strategy, to forego questions that would emphasize “the gang issue,”
Rule 23 Order at 19, and concluded that Etherly’s counsel had done
so in this case. Id. at 20.
The court based its conclusion on
several elements of the trial record.
First, the court noted that
Etherly’s counsel “participated actively in the selection of jurors,”
and “knew how to formulate questions to ask of the potential jurors,”
as evidenced by the fact that her questioning of the venire consumed
over thirty pages of trial record.
Id. at 20.
The court also
considered an exchange between Etherly’s counsel and a potential
juror who mentioned that his garage had been spray painted by “gangbangers.”
In response to this comment, Etherly’s counsel asked,
“[a]nything about that experience that might affect you in this
case?” but did not probe the gang issue specifically. Id.
noted that this questioning was followed by a side bar in which the
judge “made it clear that defense counsel would be allowed to ask
additional questions regarding the gang graffiti, but defense counsel
declined to do so.”
Id. at 21.
The court construed these elements
of the record as reflecting “the defense strategy to very briefly
affirmatively question each and every juror about possible gang
The foregoing belies Etherly’s argument that the Illinois
Appellate Court based its assessment of counsel’s voir dire strategy
on “pure speculation.”
To the contrary, the court cited three
concrete portions of the trial record as evidence of counsel’s
strategy. Etherly interprets the record differently, insisting that
his counsel merely forgot to pose questions designed to ferret out
potential gang bias, or, alternatively, did not appreciate that it
was important to do so.
But even if Etherly is correct, and the
Illinois Appellate Court erred in concluding that Etherly’s counsel
made a deliberate, strategic decision, the court’s interpretation was
not so clearly bereft of analysis or any mooring the record that no
fair-minded jurist could reach the same conclusion. As for Etherly’s
argument that the putative strategy itself was foolish, that inquiry
is foreclosed at this stage by the “double deference” I owe the
decision of the Illinois Appellate Court under § 2254(d).
Etherly’s reliance on Malone v. Walls, 538 F.3d 744, 761-62 (7th
Cir. 2008) and Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007),
is ill placed.
In Malone, the Seventh Circuit reversed the district
court’s denial of an evidentiary hearing to probe defense counsel’s
supposed trial strategy of declining to call an exculpatory witness.
The court held that nothing in the record suggested a “concrete
reason” for the supposed strategy and rejected the State’s post hoc
speculation about why counsel “could have” or “may have” chosen that
But the Seventh Circuit’s analysis of counsel’s performance
under Strickland was de novo, and “not circumscribed by a state court
Malone, 538 F.3d at 761.
And in Miller, the Seventh
abandonment,” and thus fell within the “exceedingly narrow” scope of
claims governed not by Strickland at all but by United States v.
Cronic, 466 U.S. 648 (1984), which do not require case-by-case
inquiry into prejudice.
481 F.3d at 472-73.
Here, the Illinois
Appellate Court considered defense counsel’s overall representation
of petitioner and held that “trial counsel competently defended this
case, made a motion to suppress defendant’s post-arrest statement,
made an opening statement and closing argument, conducted effective
cross-examination, properly objected to certain questions, called a
witness on behalf of defendant, and made appropriate motions before,
during and after trial.”
Etherly does not contest any of these
Miller is thus inapplicable.2
unreasonably applied Strickland’s second prong is equally without
Petitioner’s citation in his reply of 5/20/2011 to Breakiron v.
Horn, ---F.3d---, 2011 WL 1458795, at *13-14 (3d Cir. Apr. 18, 2011),
is also unavailing. In Breakiron, a member of the venire panel (“No.
114”) was present for the questioning of another venire member (“No.
67”) who said of the defendant, “I know the boy. I lived in the
terrace and he used to do a lot of robbing there.” No. 67 went on
to affirm that he could not judge the case impartially (Mr. Breakiron
was on trial for robbery), and was excused as a juror. No. 114,
however, was seated, with no objection by defense counsel. The state
courts had rejected the defendant’s claim that his counsel was
ineffective for failing to challenge No. 114, reasoning that counsel
had acted pursuant to a “reasonable trial strategy.” The courts
based this conclusion on counsel’s supposed testimony that he “did
not make a motion to strike or move for a mistrial because the seated
juror had stated that he could render an unbiased opinion.” But the
Third Circuit’s own review of the trial record revealed that No. 114
had made no such statement, nor had petitioner’s counsel testified
that he had relied on such a statement. Breakiron, 2011 WL 1458795,
at *13. To the contrary, defense counsel testified at one point, “I
don’t know why there was no request for a mistrial.” Id. at *14.
The Third Circuit went on to expose various flaws in the state
courts’ reasoning that resulted in an unreasonable application of
Strickland. In this case, by contrast, petitioner does not challenge
the Illinois Appellate Court’s characterization of the trial record,
he simply disputes the conclusions the appellate court drew from that
He has not demonstrated, however, that the court’s
conclusions were based on an unreasonable determination of the facts
or unreasonably applied Strickland.
Etherly compares this case to Virgil v. Dretke, 446 F.3d 598
(5th Cir. 2006), in which the Fifth Circuit reversed the district
court’s denial of habeas, concluding that the petitioner had been
prejudiced by his trial counsel’s failure to challenge biased jurors.
In Virgil, two potential jurors had affirmatively stated that they
could not be “fair and impartial” towards the defendant based on
specific personal experiences. Nevertheless, defense counsel did not
seek to strike these jurors for cause.
The Fifth Circuit concluded
that because the two jurors had “unequivocally expressed their
inability to serve as fair and impartial jurors,” the presumption
that the jury acted according to law was overcome.
court lacked confidence in the adversarial process that had resulted
in the petitioner’s conviction and sentence.
446 F.3d at 612-13.
That scenario is a far cry from this case, however.
Virgil, there is nothing in the record here to suggest actual juror
bias. To establish prejudice, Etherly relies on general observations
such those the Seventh Circuit made in U.S. v. Sargent, 98 F.3d 325,
328 (7th Cir. 1996), and U.S. v. Irvin, 87 F.3d 860, 864 (7th Cir.
1996), in which the court noted, for example, that evidence of gang
membership “can taint a defendant in the eyes of a jury.” Sargent,
98 F.3d at 328.
But generic statements like these are insufficient
to carry the heavy weight of Etherly’s burden to prove that the
Illinois Appellate Court unreasonably failed to hold that his jury-which had been admonished of its obligation to return a “a fair and
impartial verdict,” Rule 23 Order at 18, and is presumed, under
Strickland, 466 U.S. at 694-95, to have done so--was so likely biased
against him as to undermine confidence in the outcome of his trial.
Strickland’s prejudice prong sets forth an inherently case-specific
inquiry that requires, as the Illinois Appellate Court recognized,
an examination of “the totality of the circumstances.” Rule 23 Order
at 23 (citing Strickland, 466 U.S. at 695).
Indeed, Etherly cites
no case in which a court has found a likelihood of bias sufficient
to meet Strickland’s prejudice prong based on such non-case-specific
considerations, much less a federal habeas court reviewing the issue
through the “deferential lens” of § 2254(d).
For the foregoing reasons, Etherly’s petition for a writ of
habeas corpus and his alternative motion for discovery and an
evidentiary hearing are denied.
Elaine E. Bucklo
United States District Judge
Dated: June 20, 2011
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