Gutierrez v. Schwartz

Filing 40

MEMORANDUM Opinion and Order Signed by the Honorable Harry D. Leinenweber on 5/9/2011.(mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PORFIRIO GUTIERREZ,
Petitioner,
Case NO. 10 C 1782
v.
KEITH ANGLIN, Warden, Danville
Correctional Center,

Hon. Harry D. Leinenweber

Respondent.

MEMORANDUM OPINION AND ORDER
Before

the

Court

is

Petitioner

Porfirio

Gutierrez’s

(hereinafter, “Gutierrez”) Petition for Relief by Writ of Habeas
Corpus, pursuant to 28 U.S.C. § 2254.

For the reasons stated

below, the petition is denied.
I.
A.

BACKGROUND

Murder of Joyce Raymond

Gutierrez is serving a 50-year sentence in the Danville
Correctional

Center

in

Illinois

on

a

first-degree

murder

conviction. The evidence presented at Gutierrez’s 1996 bench trial
showed that on the evening of October 24, 1990, Joyce Raymond
(hereinafter, “Joyce”) and her then 14-year-old son Louis Raymond
(hereinafter, “Louis”) went to Gutierrez’s apartment at 1062 W.
Bryn Mawr Ave. on the North Side of Chicago, where Gutierrez
discussed the possibility of Louis dealing cocaine for him.

After

this meeting, Louis and Joyce went to the apartment of Louis’s then
13-year-old friend Antonio Alexander (hereinafter, “Antonio”),
where Louis was living at the time.

After Louis told Antonio about

his conversation with Gutierrez, Antonio said that he wanted to go
to Gutierrez’s home to talk with him.
went

to

Gutierrez’s

October 25.

apartment

at

Joyce, Louis, and Antonio

approximately

2:30

a.m.

on

They allegedly had no weapons with them, and Joyce

either was carrying a bottle or can of malt liquor in a paper bag.
After being let into Gutierrez’s apartment building by the
security guard, Joyce, Louis, and Antonio went to the eighth floor,
and Joyce

knocked

on

Gutierrez’s

door.

At

trial,

Gutierrez

testified that he had fallen asleep about 11:00 p.m., and that this
knocking — which he said lasted about 15 minutes and sounded like
kicking on the door — woke him up.

Gutierrez told them that he was

busy, and that they should come back later.

Antonio then knocked

at the door, and again Gutierrez told them to come back later.
Gutierrez testified that this knocking made him nervous, so he went
to his kitchen to get a knife.

When they knocked at the door a

third time, Gutierrez cracked the door open, pulled Antonio into
the apartment, shut his door, and began to stab Antonio. Gutierrez
testified that Antonio tried to hit him.
heard Antonio scream “don’t kill me.”

Louis testified that he

Antonio testified that he

moved toward the bathroom in the apartment.

While Gutierrez

testified that he was alone in his apartment, Antonio testified

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that there were two men in the apartment with Gutierrez, and that
one of these men helped him out of the apartment.
Once Antonio got out of the apartment, he and Louis started to
run down the hall. Joyce, however, was very intoxicated, and would
not leave.

Both Antonio and Louis testified that Gutierrez exited

his apartment brandishing a large kitchen knife, and that he
wrestled Joyce to the ground and began to stab her in the stomach.
Gutierrez, on the other hand, testified that Joyce — who he said he
had never before seen — entered his apartment and began to swing
her arms at him.

He testified that he stabbed her initially in his

apartment in self-defense.
Joyce was first discovered in the stairwell of the apartment
building by Fernando Corona (“Corona”), a resident of the building.
Corona testified that Joyce was still alive when he saw her, and
that he saw Gutierrez nearby with a bloody knife in his hand.
Gutierrez allegedly told Corona to call the police, as he had
stabbed Joyce in self-defense after she had tried to break into his
apartment.

Corona testified that Gutierrez told him to let Joyce

bleed to death, and that Gutierrez kicked Joyce in the stomach.
Chicago

police

officers

John

Anderson

and

Joe

Follmer

responded to a report of this stabbing. When the police arrived at
1062 W. Bryn Mawr, they discovered Joyce, apparently dead from
multiple stab wounds, in the stairwell between the fifth and sixth
floors of the building.

The police proceeded toward the eighth

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floor, and saw Gutierrez, with a fork in his hand, laying down and
apparently trying to hide on a platform in the stairwell.

The

officers apprehended Gutierrez, at which time he confessed that he
stabbed Joyce.

The officers placed him under arrest.

Chicago police officers Ralph Sikorski and Daniel Kowalski
were called to the crime scene.
the blood

found

in

and

Officer Sikorski testified that

outside of

Gutierrez’s

apartment was

consistent with the testimony of Louis and Antonio. In particular,
they found blood only on the bathroom floor and around the bathroom
doorway in the apartment, which was where Antonio testified he
retreated after being stabbed by Gutierrez.

They found blood

outside of the front door of the apartment, but no blood inside the
door. They also found blood in the building stairwell, on the push
plate of the eighth floor stairwell door, on the wall next to the
elevator door, and on the eighth floor elevator buttons.
B.

Gutierrez’s Mental Health History

Gutierrez’s habeas petition centers around his history of
mental illness, and whether he was denied effective assistance of
counsel due to his attorney’s failure to raise his mental illness
as a mitigating factor in his 1996 bench trial in the Circuit Court
of Cook County.

At the trial, the judge found Gutierrez guilty of

first degree murder.

In Illinois, however, “A person commits the

offense of second degree murder when he or she commits the offense
of first degree murder . . . and . . . at the time of the killing

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he or she believes the circumstances to be such that, if they
existed,

would

justify

or

exonerate

the

killing

under

the

principles stated in Article 7 of this Code [which pertain to
justifiable use of force and exoneration], but his or her belief is
unreasonable.”

720 ILCS 5/9-2(a)(2).

are relevant to this case.

Two provisions in Article 7

First, 720 ILCS 5/7-1 justifies a

person to use such force “only if he reasonably believes that such
force is necessary to prevent imminent death or great bodily harm
to himself or another, or the commission of a forcible felony.”
Id. at 5/7-1(a).

Second, a person may use such force to defend a

dwelling if “entry is made or attempted in a violent, riotous, or
tumultuous manner, and he reasonably believes that such force is
necessary to prevent an assault upon, or offer of personal violence
to, him or another then in the dwelling.”

Id. at 5/7-2(a)(1).

The record from the post-conviction proceedings in October and
November

2006

contains

a

detailed

and

voluminous

history

of

Gutierrez’s mental health history, and his conditions are also
detailed in other locations in the record.

Between 1981 and 1984,

Gutierrez was hospitalized several times at Chicago-Read Mental
Health Center and Menteno Mental Health Center, where he was
diagnosed with brief reactive psychosis, atypical psychosis, and
schizophrenia.

He was again admitted at Chicago-Read in August

1988 for psychosis, and hospitalized in June and August 1990 at the
Illinois State Psychiatric Institute, where he was diagnosed with

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schizophrenic

disorder,

alcohol

dependence,

bipolar

disorder, and manic and severe psychotic behavior.

affective

Finally, on

October 1, 1990 — a little more than three weeks prior to Joyce’s
murder — Gutierrez was treated at the Edgewater Uptown Community
Mental

Health

Center.

Here,

he

reported

having

auditory

hallucinations, and said, “I hear grunts and yelling, I hear
knocking at the door.”

He further reported heavy alcohol use, as

well as paranoid delusions that people were going to attack him on
the street.

He was not admitted for treatment at the center, and

the intake worker did not recommend a psychiatric or psychological
evaluation.
C.

Procedural History of Gutierrez’s Case

Gutierrez’s case has been in the Illinois state and federal
court systems for more than 20 years.

On November 30, 1990, he was

charged with first degree murder and aggravated battery.

Prior to

his jury trial in the Circuit Court of Cook County, the judge
ordered a behavior clinical examination of Gutierrez.

He was

examined by a Dr. Kishore Thampy on January 22, 1991, who filed a
report with the court on February 19.

The report stated that

Gutierrez was mentally fit for trial with medication.

Gutierrez’s

attorney did not ask for a fitness hearing, and the judge set the
case for trial.

His three-day jury trial began on June 4, 1991,

and the jury found him guilty on the first degree murder charge,
but not aggravated battery.

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The Illinois Appellate Court First District ruled that in
light of Dr. Thampy’s report, which was examined in open court, the
trial judge had an obligation to conduct a fitness hearing.

It

reversed the verdict and remanded the case for a new trial. People
v. Guttierez, 648 N.E.2d 928, 932 (Ill. App. 1995) (the Court notes
that

Gutierrez’s

opinion).

name

was

spelled

“Guttierez”

in

this

1995

The Illinois Supreme Court denied the state’s petition

for leave to appeal the appellate court’s decision.

With the case

back in the circuit court, the court conducted a fitness hearing on
March 12, 1996.

Prior to this hearing, Dr. James Corcoran and Dr.

Albert Stipes examined Gutierrez.

Both testified that he was fit

for trial, and the court found Gutierrez fit for trial.
Gutierrez was retried in a bench trial before Judge Dennis
Porter, which commenced on July 29, 1996.

His attorney attempted

to introduce the deposition of Dr. Rigoberto Rodriguez, who had
examined Gutierrez on June 11, 1990, when Gutierrez tried to obtain
Social Security disability benefits.
deposition as evidence.

The court excluded the

Despite Gutierrez’s assertion of self-

defense, Judge Porter found Gutierrez guilty of first degree
murder, and sentenced him to 50 years imprisonment, despite his
attorney’s presentation of Gutierrez’s mental health history at
sentencing

as

a

mitigating

factor

for

a

lower

sentence.

Gutierrez’s attorney next appealed directly to the appellate court

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to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967).
The court granted the motion, and affirmed the conviction.
Acting pro se, Gutierrez filed a petition pursuant to the
Illinois Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq.,
asserting ineffective assistance of counsel on account of his
attorney’s failure to raise his mental health as part of his
defense.

Essentially, Gutierrez argued that his attorney should

have asserted a defense that he was guilty but mentally ill.

Judge

Porter, who presided over the bench trial, summarily dismissed the
petition without appointing counsel.

The appellate court reversed

the dismissal and remanded the case to the trial court, finding
“defendant’s allegations, taken as true, sufficient to survive the
summary dismissal stage of proceedings under the Act.”

People v.

Gutierrez, No. 1-99-3630, at 4 (Ill. App. July 25, 2001).

The

court also appointed counsel for Gutierrez.
Back

in

the

trial

court,

Gutierrez’s

supplement in support of his petition.

counsel

filed

a

His counsel also retained

Dr. Antoinette Kavanaugh, a forensic psychologist, to evaluate
Gutierrez.

She

concluded

that

Gutierrez

suffers

from

schizophrenia, subchronic, and has paranoid delusions, and that it
was likely he was suffering from these thought disorders at the
time of the murder. The court denied the state’s motion to dismiss
the petition, and ordered an evidentiary hearing.

The state moved

to have Gutierrez evaluated by forensic clinical services prior to
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this hearing.

Psychiatrist Dr. Peter Lourgos conducted this

evaluation on March 9, 2006.

The trial court heard the testimony

of both Dr. Kavanaugh and Dr. Lourgos at the evidentiary hearing,
which

began

on

October

12,

2006.

The

trial

court

denied

Gutierrez’s petition on December 21, 2006.
On appeal, Gutierrez argued that the trial court violated
Strickland v. Washington, 466 U.S. 668 (1984), by incorrectly
applying the Supreme Court’s reasonable probability standard.

In

addition, he argued that the court committed manifest error by
incorrectly finding that he was guilty of first degree murder
rather than second degree murder based on the evidence presented at
the hearing.

The appellate court affirmed the trial court’s

decision, and the Illinois Supreme Court denied Gutierrez’s timely
petition for leave to appeal on November 26, 2008.
Having not filed a Petition for Writ of Certiorari to the
United States Supreme Court, Gutierrez filed a timely habeas corpus
petition in the Southern District of Illinois on August 31, 2009.
That court transferred the case here on March 16, 2010, pursuant to
28 U.S.C. §§ 1404(a) and 2241(d).
II.

LEGAL STANDARD

Gutierrez’s Petition may be granted only if the state court
proceedings “resulted in a decision that was contrary to, or
involved

an

unreasonable

application

of,

clearly

established

Federal law, as determined by the Supreme Court of the United
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States,”

or

“resulted

in

a

decision

that

was

based

on

an

unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.”

28 U.S.C. § 2254(d).

This

of

Court

must

presume

the

correctness

a

state

court’s

determinations of fact unless rebutted by the petitioner through
clear and convincing evidence. Id. at § 2254(e)(1).
III.

ANALYSIS

Gutierrez raises one claim as grounds for § 2254 relief:
ineffective assistance of counsel.

To establish this claim,

Gutierrez must show that (1) performance of his trial counsel fell
below an objective standard of reasonableness, and (2) he was
prejudiced

in

that,

but

for

the

alleged

errors,

there

is

a

reasonable probability that the outcome of the proceeding would
have been different.

See Strickland, 466 U.S. at 687–88, 694.

A

failure to establish both defective performance and prejudice will
doom an ineffective assistance of counsel claim.
United States, 972 F.2d 826, 828 (7th Cir. 1992).

See Velarde v.
The prejudice

prong requires an objective analysis, which “should proceed on the
assumption that the decisionmaker is reasonably, conscientiously,
and impartially applying the standards that govern the decision.”
Strickland, 466 U.S. at 695.

As such, the Court does not ask

whether the alleged errors establish a reasonable probability of
affecting the outcome before a specific judge, but rather if the

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errors establish a reasonable probability of affecting the outcome
before an objectively reasonable judge. See id.
A federal court reviews the decision of the highest state
court that adjudicated the petitioner’s claims on the merits.
United

States

ex

rel.

828 (N.D. Ill. 2009).

Russell

v.

Gaetz,

628

F.Supp.2d

See
820,

The Illinois Appellate Court First District

last ruled on the merits of Gutierrez’s claim for post-conviction
relief, so the Court reviews its decision.
Gutierrez argues that the appellate court failed to recognize
that the trial court applied a subjective standard in violation of
Strickland in denying his petition for post-conviction relief, and
that the appellate court itself applied a subjective standard in
affirming the trial court.

Rather than paraphrasing the appellate

court’s decision, the relevant portions of its opinion that could
be interpreted as applying a subjective standard are as follows:
The judge who conducted the post-conviction
evidentiary hearing in this case is the same
judge who presided over defendant’s bench
trial. We are authorized to consider that
judge’s “special expertise or familiarity”
with the trial when we review his postconviction petition decision for manifest
error. The trial judge was in a position that
allowed him to determine what the impact of
evidence
concerning
defendant’s
mental
condition would have been at the trial.
Viewing the evidence of defendant’s
mental illness and the evidence presented at
trial, we conclude the court did not commit
manifest error when it determined defendant
was not prejudiced by his attorney’s failure
to present evidence of his mental illness at
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trial. Even if such evidence had been
presented, there is no reasonable probability
the court would have found defendant had a
genuine, albeit unreasonable, belief it was
necessary for him to use deadly force to
defend himself from [Joyce] Raymond.
People v. Gutierrez, No. 1-07-251, at 12–13 (Ill. App. June 9,
2008) (citations omitted). The appellate court recognized that the
trial

court

Strickland

improperly
was

to

stated

demonstrate

that
that

Gutierrez’s
“there

is

burden
a

under

reasonable

probability that existed . . . for the trier of fact to conclude
that the outcome of the trial would have been different had counsel
asserted [the information regarding defendant’s mental health].”
Id. at 14.
imprecise

The appellate court, however, concluded that this
recitation

did

not

imply

that

the

judge

did

not

understand or apply the proper objective Strickland standard, as
the judge “ultimately found defendant failed to establish the
prejudice prong to warrant relief. . . .” Id.
Gutierrez argues that the appellate court failed to explain
how it concluded that the trial court applied Strickland properly.
The appellate court should have more fully enunciated the rationale
behind its decision.

In particular, it failed to cite to the

opening of the trial court’s December 21, 2006, oral opinion.
Here, Judge Porter states, “[T]he Defense is correct when they
assert, I believe, that it is not what I personally would do if I
heard this evidence.

It is what a reasonable judge would do if

they heard this evidence.”

People v. Gutierrez, No. 90-27580,
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Hearing Tr. 3:20–23, Dec. 21, 2006.

This statement demonstrates

that the judge had a proper understanding of the objective standard
in Strickland — although the judge does immediately proceed to give
the aforementioned

imprecise

interpretation

of

the

reasonable

probability factor that the outcome would change due to the alleged
ineffective assistance of counsel.

The appellate court forces a

reader to assume that it considered this portion of the opinion in
affirming the trial court. This lack of clarity, however, does not
provide grounds for § 2254 relief.
In addition, the appellate court cites the Illinois Supreme
Court cases People v. Pendleton, 861 N.E.2d 999, 1008 (Ill. 2006),
and People v. Beaman, 890 N.E.2d 500, 509 (Ill. 2008), as giving it
the

authority

to

defer

to

the

trial

court’s

expertise

and

familiarity with the case in reviewing whether the trial court
committed

manifest

error

in

denying

post-conviction

relief.

Gutierrez argues that this deference established a subjective
prejudice standard.
If the appellate court had ruled that the trial court’s
familiarity with the facts and credibility issues from the trial
led it to rule that the alleged failure by counsel would not have
changed its decision, then Gutierrez would be correct in that the
appellate court’s deference runs afoul of Strickland.

Strickland,

466 U.S. at 695; see also Williams v. Allen, 542 F.3d 1326, 1344–45
(11th Cir. 2008) (“[A] trial judge’s post-hoc statements concerning
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how additional evidence might have affected its ruling are not
determinative

for

purposes

of

assessing

prejudice.”).

This,

however, is not what the trial court did, nor is it how the
appellate court reviewed the trial court’s denial of relief.
Rather, the appellate court gave deference to the trial court’s
factual and credibility determinations, which led it to decide that
no

reasonable

probability

existed

that

the

introduction

of

Gutierrez’s mental health history would have changed the outcome of
Gutierrez’s trial.

This deference complies with Strickland’s

objective standard.
In addition, the appellate court analyzed the trial record,
and made its own conclusion that the omission of Gutierrez’s mental
health history by his attorney did not constitute ineffective
assistance of counsel.

The court determined that even if this

evidence had been presented, a reasonable probability did not exist
that Gutierrez would not have been convicted of first degree
murder. Gutierrez, No. 1-07-251, at 13 (“Even if such evidence had
been presented, there is no reasonable probability the court would
have found defendant had a genuine, albeit unreasonable, belief it
was necessary for him to use deadly force to defend himself from
[Joyce] Raymond.”). The appellate court made its own decision that
Gutierrez failed to satisfy the second prong of Strickland.
A key factor in this determination was the competing expert
testimony

of

Dr.

Kavanaugh

and

Dr.

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Lourgos.

Dr.

Kavanaugh

testified on behalf of Gutierrez, and claimed that Gutierrez was
very

likely

suffering

from

“schizophrenia,

subchronic” at the time of the murder.

paranoid

type,

She based this opinion on

her own personal observations, as well as a review of Gutierrez’s
medical

records.

She

said

that

this

condition

could

cause

Gutierrez to hallucinate and have delusions that people were out to
get him.
Dr. Lourgos testified that the evidence did not support Dr.
Kavanaugh’s

assertion

that

Gutierrez

was

suffering

from

schizophrenia or another thought disorder at the time of the
murder.

He also based this opinion on a personal evaluation of

Gutierrez and a review of Gutierrez’s medical records.

He noted

that the inconsistent diagnoses of Gutierrez during his numerous
hospitalizations,
relatively

as

brief,

well

as

that

pointed

to

Gutierrez’s

particularly severe.
Gutierrez

did

not

the

hospitalizations
disorder

not

were
being

In addition, Dr. Lourgos observed that
display

symptoms

of

schizophrenia

incarcerated and not under the influence of drugs or alcohol.

when
The

appellate court noted that Gutierrez did not present evidence at
trial that the stabbing was the result of a hallucination. Rather,
Gutierrez testified that he grabbed the knife out of fear.
The appellate court found that the trial court did not commit
manifest error when it weighed Dr. Kavanaugh’s testimony against
Dr. Lourgos’s testimony, and concluded that the evidence did not

- 15 -

show that Gutierrez was suffering from schizophrenia or another
thought disorder at the time of the murder.
that

both

Dr.

Kavanaugh

and

Dr.

The court emphasized

Lourgos

testified

that

schizophrenic symptoms wax and wane over time, as well as that Dr.
Lourgos testified that Gutierrez opening his door, despite his
alleged fear of the people knocking on it, was inconsistent with
schizophrenic behavior.

It found that Gutierrez failed to satisfy

Strickland’s prejudice prong, as the evidence did not warrant a
conviction for second degree murder rather than first degree
murder.

See 720 ILCS 5/9-2(a)(2).

Therefore, he was not entitled

to post-conviction relief.
The habeas petition now before this Court boils down to an
analysis of the two expert witnesses.

In reviewing the record,

this Court finds that the appellate court’s decision was not
unreasonable in light of the competing expert testimony.

The

appellate

Dr.

court

did

not,

as

Gutierrez

argues,

downplay

Kavanaugh’s testimony and the significance of his long history of
mental illness.

Rather, the court examined the relevant issue of

whether the evidence established that Gutierrez was suffering from
schizophrenic symptoms at the time of the murder, which would have
required his attorney to raise this in order to provide effective
representation at trial. It was reasonable for the appellate court
to find that Dr. Lourgos’s testimony, combined with the other
evidence presented at the post-conviction hearing, established that

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there was not a reasonable probability that had Gutierrez’s counsel
presented this defense, a reasonable probability existed that court
would have found that Gutierrez acted under a genuine, albeit
unreasonable, belief that it was necessary to use deadly force to
defend himself from Joyce.

Therefore, a second degree murder

sentence would be improper.
assistance of counsel.
properly

applied

the

Gutierrez did not receive ineffective

Accordingly, because the appellate court
Strickland

objective

standard,

and

its

decision was reasonable in light of the facts in the record,
Gutierrez’s

Petition for Writ of Habeas Corpus is denied.
IV.

CONCLUSION

For the reasons stated herein, Gutierrez’s § 2254 Habeas
Corpus Petition is denied.

Gutierrez’s Request for a Certificate

of Appealability is also denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
DATE: 5/9/2011

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