Fernandez v. Pfister
Filing
188
MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 9/19/2014:Mailed notice(kef, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GEORGE FERNANDEZ (B70201),
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Petitioner,
v.
RANDY PFISTER, Warden, Pontiac
Correctional Center,
Respondent.
Case No. 07 C 2843
MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
Before the Court is Petitioner George Fernandez’s amended petition for a writ of habeas
corpus brought pursuant to 28 U.S.C. § 2254(d). For the following reasons, the Court denies
Fernandez’s amended habeas petition and declines to certify any issues for appeal pursuant to 28
U.S.C. § 2253(c)(2).
BACKGROUND
When considering habeas petitions, federal courts must presume the factual findings
made by the last state courts to decide the case on the merits are correct unless the habeas
petitioner rebuts those findings by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1);
Ford v. Wilson, 747 F.3d 944, 947 (7th Cir. 2014). Where Fernandez has not provided clear and
convincing evidence to rebut this presumption of correctness, the following factual background
is based on the Illinois Appellate Court’s factual findings in People v. Fernandez, No. 1-01-1810
(1st Dist. Sept. 24, 2002) (unpublished) and People v. Fernandez, No. 1-04-2864 (1st Dist. Nov.
7, 2005) (unpublished).
I.
Factual Background
Following a 2001 trial, a jury convicted Fernandez of aggravated vehicular hijacking in
the Circuit Court of Cook County, after which the Circuit Court judge sentenced him to 18 years
in prison. Evidence at trial established that at approximately 10:30 a.m. on January 3, 1999,
Jesus Lopez was standing next to the open driver’s side door of his car, which was running,
while he was on North Spaulding Avenue in Chicago. Lopez testified that a man, whom he later
identified as Fernandez, spoke Spanish to him, put a gun to Lopez’s chest, and demanded money.
After Lopez gave Fernandez his money, Fernandez then told Lopez he wanted his car.
Fernandez then entered the car and drove away. In addition, Lopez testified that the encounter
lasted about three to five minutes giving him adequate time to view Fernandez’s face. Lopez
further testified that he called the police and gave a description of Fernandez to them. On the
next day, Lopez went to the police station where he viewed a line-up and identified Fernandez.
Chicago police detective Allen Pergande also testified at Fernandez’s jury trial stating that on
January 4, 1999, Lopez came to the police station, viewed a lineup, and identified Fernandez as
the individual who took his car and money.
Chicago police officer Pamela Davis also testified at Fernandez’s 2001 jury trial. She
stated that on January 4, 1999, she saw Fernandez disobey a stop sign while he was driving.
When she activated her emergency lights, Fernandez drove through another stop sign. Officer
Davis further testified that she then saw Fernandez drive on the wrong side of the street and pass
cars while he was speeding. Shortly thereafter, Fernandez stopped and Officer Davis parked
behind him, after which she entered the car’s license plate number into her computer revealing
that Fernandez was driving Lopez’s car. In addition, Officer Davis testified that she saw
2
Fernandez exit the car and walk toward her. She then radioed for assistance. Fernandez ran past
Officer Davis, but other Chicago police officers pursued him in their squad car. Officer Davis
also testified that she saw one of the police officers chase Fernandez on foot and arrest him. The
States’ Attorney charged Fernandez with armed robbery and aggravated vehicular hijacking.
II.
Procedural Background
The jury found Fernandez guilty of aggravated vehicular hijacking, but not guilty of the
armed robbery charge. On April 24, 2001, the Circuit Court judge sentenced Fernandez to a
term of 18 years imprisonment. On May 2, 2001, Fernandez filed a pro se notice of appeal. On
June 26, 2001, defense counsel appeared before the Circuit Court stating that Fernandez’s case
was on the court’s motion call due to a request to reconsider Fernandez’s sentence. Counsel
informed the court that because Fernandez filed a pro se notice of appeal, the Circuit Court did
not have jurisdiction to do anything except perfect the appeal. The Circuit Court agreed and
entered an order removing Fernandez’s case from the court’s call.
On direct appeal to the Illinois Appellate Court, First District, Fernandez, by counsel,
argued that his defense counsel was constitutionally ineffective for erroneously arguing that the
Circuit Court did not have jurisdiction to reconsider his sentence. The Illinois Appellate Court
concluded that defense counsel was not constitutionally ineffective. Thereafter, Fernandez did
not file a petition for leave to appeal (“PLA”) to the Supreme Court of Illinois.
On November 15, 2002, Fernandez filed a pro se petition for post-conviction relief in the
Circuit Court of Cook County pursuant to the Illinois Post-Conviction Hearing Act, 725 ILCS
5/122-1, et seq., that counsel later supplemented. The supplemental petition contained an
ineffective assistance of trial counsel claim based on counsel’s failure to (1) call a non-family
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witness to testify that Fernandez did not speak Spanish; (2) cite legal authority in support of the
request that Fernandez be permitted to display his tattoos to the jury; and (3) object
to the Illinois pattern jury instruction on eyewitness identification testimony. Furthermore, the
supplemental post-conviction petition contained an ineffective assistance of appellate counsel
claim based on appellate counsel’s failure to raise the tattoo display and jury instruction issues
on direct appeal. On May 13, 2004, the Circuit Court dismissed Fernandez’s first postconviction petition.
On post-conviction appeal, Fernandez argued the same ineffective assistance of trial
counsel claims that he brought in his post-conviction petition. He also argued that appellate
counsel was constitutionally ineffective based on appellate counsel’s failure to raise the tattoo
display and pattern jury instruction issues. On November 7, 2005, the Illinois Appellate Court
affirmed the Circuit Court concluding that Fernandez had not established constitutionally
ineffective assistance of trial or appellate counsel. In his counseled post-conviction PLA to the
Supreme Court of Illinois, Fernandez argued that his trial counsel was constitutionally
ineffective for failing to (1) call a non-family witness to testify that he did not speak Spanish; (2)
cite legal authority in support of the request that he be permitted to display his tattoos to the jury;
and (3) object to the Illinois pattern jury instruction on eyewitness identification testimony.
Fernandez also argued that his post-conviction counsel failed to provide reasonable assistance of
counsel and mentioned that appellate counsel was constitutionally ineffective for failing to
understand that there was a legal basis for allowing Fernandez to display his tattoos to the jury
and failing to object to the Illinois pattern jury instruction on eyewitness identification. On May
24, 2006, the Supreme Court of Illinois denied Fernandez’s post-conviction PLA.
4
On January 27, 2005, while his first post-conviction petition was on appeal, Fernandez
filed a second post-conviction petition raising claims that he did not bring in the present
amended petition for a writ of habeas corpus. The Circuit Court denied Fernandez’s second
post-conviction petition on February 2, 2006. Fernandez’s second post-conviction appeal was
unsuccessful, and the Supreme Court of Illinois denied his second post-conviction PLA on
September 30, 2009.
III.
Habeas Petition
On March 22, 2007, Fernandez filed a pro se habeas petition pursuant to 28 U.S.C. §
2254(d). On August 20, 2007, the Court granted Respondent’s motion to stay due to
Fernandez’s failure to exhaust his habeas claims. See Rhines v. Weber, 544 U.S. 269, 125 S.Ct.
1528, 161 L.Ed.2d 440 (2005). On December 2, 2009, the Court granted Fernandez’s motion to
lift the stay. On December 8, 2009, the Court granted Fernandez’s motion for appointment of
counsel and appointed the attorneys who presently represent Fernandez.
In February 2010, Fernandez’s appointed counsel filed a motion for a fitness examination
for the purposes of determining whether Fernandez was mentally competent to assist and direct
counsel in the present habeas proceeding. Thereafter, on April 11, 2011, the Court held a
competency hearing and, on July 14, 2011, the Court concluded that Fernandez was not
competent to assist his counsel in this matter. In July 2012, the Court granted Fernandez’s
unopposed motion for appointment of his father, Alberto Fernandez, as guardian ad litem
pursuant to Federal Rule of Civil Procedure 17(c). The Court appointed Alberto Fernandez as
guardian ad litem for purposes of directing the present habeas litigation. In the summer of 2013,
a psychologist re-evaluated Fernandez, after which counsel filed a status report with the Court
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that contained an August 2013 report from the psychologist. The report concluded that
Fernandez is not capable of assisting counsel in his habeas case and that there is no reasonable
hope of restoration of competence. In light of Fernandez’s continuing incompetence, appointed
counsel consulted with Alberto Fernandez, as guardian ad litem, in drafting Fernandez’s
amended habeas petition filed on April 28, 2014.
In his amended habeas petition, Fernandez brings the following claims: (1) his trial
counsel was constitutionally ineffective for (a) failing to call an independent witness on the issue
of whether he spoke Spanish, (b) failing to object to the Illinois pattern jury instruction on
eyewitness identification testimony, and (c) failing to provide case law showing that displaying
Fernandez’s tattoos to the jury would have been proper non-testimonial evidence; and (2) his
appellate counsel was constitutionally ineffective for failing to argue that (a) the eyewitness
testimony pattern jury instruction was improper, and (b) Fernandez should have been allowed to
display his tattoos to the jury.
LEGAL STANDARD
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Court
cannot grant habeas relief unless the state court’s decision was contrary to, or an unreasonable
application of federal law clearly established by the Supreme Court. See Williams v. Taylor, 529
U.S. 362, 402-03, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Ruhl v. Hardy, 743 F.3d 1083, 1091
(7th Cir. 2014). In Williams, the Supreme Court explained that a state court’s decision is
“contrary to” clearly established Supreme Court law “if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law” or “if the state court confronts facts
that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a
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result opposite to ours.” See id. at 405; see also Kamlager v. Pollard, 715 F.3d 1010, 1015 (7th
Cir. 2013) (“A state court decision is ‘contrary to’ federal law if it applies the wrong legal
standard established by Supreme Court precedent or decides a case differently than the Supreme
Court on materially indistinguishable facts.”).
Under the “unreasonable application” prong of the AEDPA standard, a habeas petitioner
must demonstrate that although the state court identified the correct legal rule, it unreasonably
applied the controlling law to the facts of the case. See Williams, 529 U.S. at 407. The state
court’s application of federal law must be more than incorrect, it must be “objectively
unreasonable.” Ford v. Wilson, 747 F.3d 922, 952 (7th Cir. 2014); see also Williams, 529 U.S.
at 410 (“unreasonable application of federal law is different from an incorrect application of
federal law”) (emphasis in original). To be considered objectively unreasonable, a state court’s
decision must be “well outside the boundaries of permissible differences of opinion.” Kamlager,
715 F.3d at 1016 (citation omitted).
ANALYSIS
I.
Ineffective Assistance of Trial Counsel Claims
To establish constitutionally ineffective assistance of trial counsel under the Sixth
Amendment, Fernandez must show that (1) his trial attorney’s performance “fell below an
objective standard of reasonableness,” informed by “prevailing professional norms” and (2) “but
for counsel’s unprofessional errors the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “To
reflect the wide range of competent legal strategies and to avoid the pitfalls of review in
hindsight, [the Court’s] review of an attorney’s performance is highly deferential and reflects a
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strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Groves v. United States, 755 F.3d 588, 591 (7th Cir. 2014) (citation omitted). To
establish prejudice, it is not enough “to show that the errors had some conceivable effect on the
outcome of the proceeding,” instead trial counsel’s errors must be “so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable.” Morgan v. Hardy, 662 F.3d 790, 802
(7th Cir. 2011) (quoting Strickland, 466 U.S. at 687, 693). If Fernandez fails to make a proper
showing under one of the Strickland prongs, the Court need not consider the other. See
Strickland, 466 U.S. at 697 (“a court need not determine whether counsel’s performance was
deficient before examining the prejudice suffered by the defendant”). Finally, as the Supreme
Court teaches, because the “standards created by Strickland and § 2254(d) are both ‘highly
deferential,’ when applying “the two in tandem, review is ‘doubly so.’” Harrington v. Richter,
562 U.S. 86, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011).
A.
Failure to Present Additional Witness Testimony
First, Fernandez argues that his trial counsel was constitutionally ineffective for failing to
present independent, unbiased witness testimony establishing that he could not speak Spanish,
and thus could not have committed the aggravated vehicular hijacking. In particular, Fernandez
argued on post-conviction appeal that although trial counsel called his mother to testify about his
inability to speak Spanish, counsel should have called Patricia Kappel, the Director of the Boys
and Girls Clubs of Chicago, who averred that she saw Fernandez regularly from ages 6 to 12 and
that Fernandez never conversed in Spanish.1
1
In his amended habeas petition, Fernandez contends that other individuals should
have testified at his trial regarding his inability to speak Spanish. The Court need not determine
Fernandez’s claim based on these other individuals because the only argument he made on post8
The post-conviction Illinois Appellate Court discussed this ineffective assistance of
counsel claim as follows:
Defendant argues his counsel was ineffective for failing to present cumulative
testimony to show he could not speak Spanish. Defendant’s mother testified at
trial that defendant did not speak Spanish. Defendant argues defense counsel
should have called Patricia Kappel as a witness to bolster his mother’s testimony.
Kappel, in an affidavit attached to defendant’s postconviction petition, said she
knew defendant before the crime and that defendant did not speak Spanish at that
time. It had been nine years since Kappel had spoken with defendant. Defendant
maintains this evidence would have impacted the credibility of the victim’s
identification of defendant as Spanish-speaking.
Defendant’s claim does not meet the Strickland standard. First, defense
counsel’s failure to call Kappel as a witness was not unreasonable. Kappel had
not spoken with defendant in nine years and was not competent to testify as to
whether defendant could speak Spanish at the time of the crime. See People v.
Jackson, 149 Ill.2d 540, 543-54, 599 N.E.2d 926 (1992) (failure to call character
witness who had not been in contact with defendant for 10 years did not constitute
ineffective assistance of counsel). Second, defendant cannot show that Kappel’s
testimony would have affected the result at trial. The testimony would have been
cumulative of evidence already before the jury.... People v. Brooks, 251
Ill.App.3d 927, 934, 623 N.E.2d 1380 (1993) (failure of defense counsel to secure
additional witnesses whose testimony would have been cumulative of the
defendant’s own testimony is not prejudicial under the Strickland standard.)
People v. Fernandez, No. 1-04-2864, at 3-4.
Here, Fernandez has not established that the Illinois Appellate Court’s application of
Strickland to his first ineffective assistance of counsel claim was objectively unreasonable,
namely, that there is no reasonable basis for its decision. See Cullen v. Pinholster, 131 S.Ct.
1388, 1402 (2011). As the Illinois Appellate Court reasoned, trial counsel’s failure to call
conviction appeal was that trial counsel erred in not calling Patricia Kappel as a witness
concerning his ability to speak Spanish. In short, Fernandez did not properly exhaust his claim
based on these additional individuals. See Sturgeon v Chandler, 552 F.3d 604, 610 (7th Cir.
2009) (petitioner must present same operative facts and controlling legal principles to state court
to exhaust claims under 28 U.S.C. § 2254(b)(1)(A)).
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Kappel as an additional witness was not constitutionally deficient, especially because Kappel
had not spoken to Fernandez for nine years prior to his trial, and thus was not competent to
testify as to whether Fernandez could speak Spanish at the time of the crime. Simply put, trial
counsel’s failure to call Kappel to testify that she never heard Fernandez speak Spanish when she
knew him years before the vehicular hijacking did not fall outside of the wide range of
professionally competent assistance. See Pole v. Randolph, 570 F.3d 922, 947 (7th Cir. 2009).
Indeed, as the Seventh Circuit explains, the “Constitution does not oblige counsel to present each
and every witness that is suggested to him. In fact, such tactics would be considered dilatory
unless the attorney and the court believe the witness will add competent, admissible and
non-cumulative testimony to the trial record.” United States v. Balzano, 916 F.2d 1273, 1294
(7th Cir. 1990). The Court, therefore, denies Fernandez’s first ineffective assistance of counsel
claim.
B.
Failing to Object to Eyewitness Jury Instruction
Next, Fernandez bases his ineffective assistance of trial counsel claim on counsel’s
failure to object to the pattern jury instruction on eyewitnesses, namely, Illinois Pattern Jury
Instruction (“IPI”), Criminal 3.15. Specifically, Fernandez argues that IPI 3.15 contained the
conjunction “or” between each of the five propositions in reference to the jury weighing the
eyewitness identification testimony implying that the juror could choose whether to consider that
factor or not.
The post-conviction Illinois Appellate Court referenced the version of IPI 3.15 that was
controlling at the time of Fernandez’s jury trial:
When you weigh the identification testimony of a witness, you should
consider all the facts and circumstances in the evidence, including, but not limited
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to, the following:
[1] The opportunity the witness had to view the offender at the
time of the offense.
[or]
[2] The witness’s degree of attention at the time of the offense.
[or]
[3] The witness’s earlier description of the offender.
[or]
[4] The level of certainty shown by the witness when confronting the
defendant.
[or]
[5] The length of time between the offense and the identification
confrontation.
People v. Fernandez, No. 1-04-2864, at 5 (citing Illinois Pattern Jury Instructions, Criminal No.
3.15 (4th ed. 2000)). In discussing Fernandez’s argument based on IPI 3.15, the post-conviction
Illinois Appellate Court stated:
Defendant cites People v. Gonzalez, 326 Ill.App.3d 629, 761 N.E.2d 198
(2001) in support of his argument that counsel’s failure to object to the instruction
in this form amounted to ineffective assistance of counsel. The court there held
the word “or” between the five factors enumerated in IPI 3.15 was error because it
implied, as a matter of law, that an eyewitnesses’s identification testimony may
be deemed reliable if only one of the five factors weighs in favor of reliability.
Our supreme court has since adopted this view. But it does not follow that
defendant’s counsel was ineffective for failing to make an objection.
Defendant concedes Gonzalez was decided after his trial. We decline to
find counsel’s failure to make an objection grounded in law not yet in existence
unreasonable.
People v. Fernandez, No. 1-04-2864, at 5-6 (internal citations omitted).
The Illinois Appellate Court further explained why counsel’s failure to object to IPI 3.15
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did not prejudice Fernandez:
Also, defendant cannot show prejudice resulting from counsel’s failure to object.
IPI 3.15, if properly given to the jury to omit the word “or” between the five
factors, would not have changed the result at trial. Correctly given, the jury
would have considered all five factors in deciding the reliability of the victim’s
identification testimony: (1) the opportunity the victim had to view the offender
at the time of the offense; (2) the victim’s degree of attention at the time of the
offense; (3) the victim’s earlier description of the offender; (3) the level of
certainty shown by the victim when confronting the defendant; and (5) the length
of time between the offense and the identification. All of these factors weigh
against defendant. The victim had three to five minutes to view defendant at
close range and with no obstructions. It is reasonable to infer the victim viewed
defendant with a great deal of attention in light of the fact defendant held a gun to
the victim’s chest. The victim identified defendant the following day in a police
lineup. The victim again identified defendant in court. There was no evidence of
uncertainty or conflicting descriptions by the victim.
People v. Fernandez, No. 1-04-2864, at 6-7 (emphasis in original).
Again, Fernandez has not established that the Illinois Appellate Court’s application of
Strickland to his second ineffective assistance of counsel claim was objectively unreasonable,
namely, “well outside the boundaries of permissible differences of opinion.” Kamlager, 715
F.3d at 1016 (citation omitted). As the Illinois court explained, trial counsel’s failure to object to
IPI 3.15 was not constitutionally deficient because any such objection would have been
“grounded in law not yet in existence.” It is well-established that “[t]he Sixth Amendment does
not require counsel to forecast changes or advances in the law.” Valenzuela v. United States,
261 F.3d 694, 700 (7th Cir. 2001) (quoting Lilly v. Gilmore, 988 F.2d 783, 786 (7th Cir. 1993)).
In fact, the Seventh Circuit has explicitly rejected this same ineffective assistance of counsel
claim based on IPI 3.15, noting that a lawyer’s failure to object to the use of an applicable
pattern jury instruction — as IPI 3.15 was at the time of Fernandez’s trial — does not amount to
objectively unreasonable assistance of counsel under Strickland. See Smith v. McKee, 598 F.3d
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374, 384 (7th Cir. 2010). Fernandez’s claim is further untenable because, in Illinois, Circuit
Courts are required to use the pattern jury instructions that are available at the time of trial. See
People v. Polk, 407 Ill.App.3d 80, 108, 942 N.E.2d 44, 68, 347 Ill.Dec. 211, 235 (1st Dist. 2010)
(“use of the IPI is not optional, but mandatory.”). As such, the Court denies Fernandez’s second
ineffective assistance of trial counsel claim.
C.
Failing to Provide Legal Authority that Tattoos are Proper NonTestimonial Evidence
At trial, after the prosecution rested, Fernandez’s trial counsel orally requested that the
Circuit Court allow Fernandez to walk in front of the jury to display his tattoos. The Circuit
Court stated that allowing Fernandez to display his tattoos as such would be testimonial in nature
and that, under the circumstances, Fernandez would be subject to cross-examination. Trial
counsel did not challenge the Circuit Court’s legal conclusion. Post-conviction appellate counsel
argued that identification was the key issue in this case and that the victim did not notice any
tattoos on the perpetrator. Accordingly, post-conviction appellate counsel asserted that trial
counsel’s failure to challenge the Circuit Court’s decision with legal authority was
constitutionally ineffective.
The post-conviction Illinois Appellate Court discussed this ineffective assistance of trial
counsel claim as follows:
Defendant has again failed to make the required showing under Strickland.
The record shows defense counsel requested that defendant display his tattoos to
the jury. The trial court did not grant the request on the ground that such display
would have been testimonial in nature and would have subjected defendant to
cross-examination. Regardless of whether the trial court was correct in its ruling,
defense counsel’s actions cannot be deemed unreasonable in light thereof. Also,
the evidence would have been cumulative. The State’s own witnesses, the
arresting officers, testified defendant had facial tattoos at the time of the arrest.
Defendant was not prejudiced by the lack of cumulative evidence, especially
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where the evidence is not in dispute.
People v. Fernandez, No. 1-04-2864, at 4 (internal citations omitted).
The Illinois Appellate Court’s determination as to Fernandez’s third ineffective
assistance of trial counsel claim does not amount to an unreasonable application of Strickland.
See 28 U.S.C. § 2254(d)(1). Counsel’s failure to provide legal authority while making his oral
motion does not amount to a constitutionally ineffective assistance of counsel under Strickland,
especially because there is a strong presumption that counsel’s performance was within the wide
range of reasonable professional assistance. See Harrington, 131 S.Ct. at 787. In particular, it is
not uncommon during trial for attorneys to make oral motions regarding evidence without citing
to legal authority, after which the court, in its discretion, determines whether to admit any such
evidence. Hence, trial counsel’s performance did not fall “below an objective standard of
reasonableness,” based on “prevailing professional norms.” See Sussman v. Jenkins, 636 F.3d
329, 349-50 (7th Cir. 2011) (“The question is whether an attorney’s representation amounted to
incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices
or most common custom.”) (citation omitted).
Even if counsel should have cited legal authority in making his oral motion, the Court
cannot examine this alleged error in isolation, but must analyze counsel’s performance as a
whole. See Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir. 2009) (per curiam) (“It is essential
to evaluate the entire course of the defense, because the question is not whether the lawyer’s
work was error-free, or the best possible approach, or even an average one, but whether the
defendant had the ‘counsel’ of which the sixth amendment speaks.”). In doing so, the Court
would be hard-pressed to conclude that trial counsel’s performance was constitutionally
14
ineffective under Strickland, especially in light of the fact that the jury acquitted Fernandez of
armed robbery. Thus, the Court denies Fernandez’s ineffective assistance of trial counsel claims.
II.
Ineffective Assistance of Appellate Counsel Claims2
As with ineffective assistance of trial counsel claims, courts apply the two-prong test set
forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to
evaluate the effectiveness of appellate counsel. See Warren v. Baenen, 712 F.3d 1090, 1105 (7th
Cir. 2013). Under the Strickland performance prong, an appellate counsel’s performance is
constitutionally deficient if counsel fails to appeal an issue that is obvious and clearly stronger
than the claims counsel raised on appeal. See Blake v. United States, 723 F.3d 870, 888 (7th Cir.
2013); Johnson v. Thurmer, 624 F.3d 786, 793 (7th Cir. 2010). In this context, appellate counsel
need not raise every non-frivolous claim, but should select among claims to maximize the
likelihood of success on appeal. See Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145
L.Ed.2d 756 (2000); McNary v. Lemke, 708 F.3d 905, 920 (7th Cir. 2013). To establish the
Strickland prejudice prong, Fernandez must show that there is a reasonable probability that the
issue appellate counsel did not raise would have changed the outcome of the appeal. See
Richardson v. Lemke, 745 F.3d 258, 273 (7th Cir. 2014).
In his habeas petition, Fernandez argues that his counsel on direct appeal was
constitutionally ineffective for failing to raise the pattern jury instruction and tattoo display
issues. The post-conviction Illinois Appellate Court concluded that — for the same reasons trial
2
Respondent argues that Fernandez has procedurally defaulted his ineffective
assistance of appellate counsel claims because he did not raise them in his post-conviction PLA
to the Supreme Court of Illinois. Nonetheless, the Court will review Fernandez’s ineffective
assistance of appellate counsel claims for the sake of completeness.
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counsel was not constitutionally ineffective for failing to raise these issues — appellate counsel
was not constitutionally ineffective under Strickland. Indeed, because Fernandez’s appellate
counsel claims are predicated on the same alleged trial errors, the two claims rise and fall
together. See Johnson, 624 F.3d at 793; see also Warren, 712 F.3d at 1106.
Further, Fernandez has not established that had his appellate counsel raised the pattern
jury instruction and tattoo display issues on direct appeal the outcome of his appeal would have
been different. In his amended habeas petition, Fernandez maintains that Gonzalez came out 17
days before Fernandez’s appellate counsel filed his opening appellate brief, and thus appellate
counsel was constitutionally ineffective for not raising the jury instruction claim. The Illinois
Appellate Court has held that the rule announced in Gonzalez is not retroactive, and thus this
claim is without merit. See People v. Chatman, 357 Ill.App.3d 695, 700, 830 N.E.2d 21, 27, 294
Ill.Dec. 21, 27 (1st Dist. 2005). Furthermore, as discussed above, Fernandez’s claim is
untenable because, under the Supreme Court of Illinois rules, Circuit Courts are required to use
the pattern jury instructions that are available at the time of trial. See Polk, 407 Ill.App.3d at
108.
In addition, Fernandez cannot establish the prejudice prong regarding his ineffective
assistance of appellate counsel claim based on the display of his tattoos. As the Illinois
Appellate Court explained, any additional evidence of Fernandez’s facial tattoos would have
been cumulative because the arresting officers testified at his jury trial that Fernandez had facial
tattoos at the time of his arrest. More specifically, the two police officers who apprehended
Fernandez when he was fleeing from the victim’s stolen car testified that Fernandez had facial
tattoos. Because there was evidence before the jury that Fernandez had facial tattoos — despite
16
the fact that Lopez, the victim, did not mention the tattoos when describing the perpetrator to
police — counsel’s failure to cite legal authority about Fernandez’s facial tattoos did not
prejudice him. Based on this evidence, the jury was aware that Fernandez had facial tattoos and
that the victim did not describe the tattoos to the police in an attempt to identify the perpetrator
minutes after the vehicular hijacking. Under the circumstances, the Illinois Appellate Court’s
decision was not an unreasonable application of Strickland to the facts of this case. See 28
U.S.C. § 2254(d)(1). Therefore, the Court denies Fernandez’s ineffective assistance of appellate
counsel claims.
III.
Certificate of Appealability
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section 2254
Proceedings, the “district court must issue or deny a certificate of appealability when it enters a
final order adverse to the applicant.” Accordingly, the Court must determine whether to grant
Fernandez a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) in the present order.
See Gonzalez v. Thaler, ___ U.S. ___, 132 S.Ct. 641, 649 n.5, 181 L.Ed.2d 619 (2012).
A habeas petitioner does not have the absolute right to appeal a district court’s denial of
his habeas petition, instead, he must first request a certificate of appealability. See Miller-El v.
Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003); Bolton,730 F.3d at
697. A habeas petitioner is entitled to a certificate of appealability only if he can make a
substantial showing of the denial of a constitutional right. See Miller-El, 537 U.S. at 336;
Thomas v. Zatecky, 712 F.3d 1004, 1006 (7th Cir. 2013); 28 U.S.C. § 2253(c)(2). Under this
standard, Fernandez must demonstrate that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or that the issues
17
presented were adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at
336 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)).
Here, Fernandez has failed to make a substantial showing of the denial of a constitutional
right because he has not sufficiently explained why jurists of reason would debate that the Court
should have resolved the present habeas petition in a different manner. See Peterson v. Douma,
751 F.3d 524, 528 (7th Cir. 2014). As such, the Court declines to certify any issues for appeal.
See 28 U.S.C. § 2253(c)(2).
CONCLUSION
For these reasons, the Court denies Fernandez’s petition for a writ of habeas corpus and
declines to certify any issues for appeal. See 28 U.S.C. §§ 2253(c)(2), 2254(d).
Dated: September 19, 2014
ENTERED
AMY J. ST. EVE
United States District Judge
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