Gutierrez v. Harrington et al

Filing 142

MEMORANDUM Opinion and Order written by the Honorable Lindsay C. Jenkins on 3/11/2025. Mailed notice. (jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Armando Gutierrez,
Plaintiff,

No. 14 CV 2799

v.

Judge Lindsay C. Jenkins

John Barwick,
Defendant.

MEMORANDUM OPINION AND ORDER

Petitioner

Armando

Gutierrez

(“Petitioner”

or

“Gutierrez”),

who

is

incarcerated at Western Correctional Center, brings this habeas corpus action
pursuant to 28 U.S.C. § 2254 challenging his conviction in the Circuit Court of Cook
County. For the reasons below, the petition is denied.
I.

Background
In reviewing a petition for federal habeas corpus, the Court presumes that the

state court’s factual determinations are correct unless Petitioner rebuts those facts
by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Weaver v. Nicholson, 892
F.3d 878, 881 (7th Cir. 2018). Gutierrez does not challenge any of the underlying facts
in his petition, so the Court draws the following facts from the Illinois Appellate
Court’s opinion in his direct appeal, People v. Gutierrez (“Guttierez I”), 899 N.E.2d
1193 (Ill. App. Ct. 2008), [Dkt. 32-12]; the Illinois Appellate Court’s order denying his
postconviction appeal, People v. Gutierrez (“Gutierrez II”), 2013 IL App (1st) 111309-

U, [Dkt. 32-22]; and the state court records that Respondent provided pursuant to
Rule 5 of the Rules Governing Section 2254 Cases. 1
A.

Underlying Facts and Conviction

In 2000, Petitioner Armando Gutierrez was charged with the first-degree
murder of Jorge Castaneda and attempted first-degree murder of Nester Castaneda. 2
It was undisputed at trial that he shot and killed Jorge and shot and wounded Jorge’s
brother Nester; Gutierrez argued that he did so in self-defense. Gutierrez II, 2013 IL
App (1st) 111309-U, ¶¶ 3–4. Gutierrez and other testifying witnesses gave different
accounts of the incident, summarized below.
Gutierrez was close friends with Jorge and Nester Castaneda. On October 25,
2000, Gutierrez was at the Castaneda home working on his truck, which had been
damaged in an accident a few days earlier. Id. at ¶ 4. Gutierrez was in the yard with
Jorge, his cousin Antonio Castaneda, and two other men known as Trigger (Marco
Canas) and Goofy (identity unknown), drinking beer and smoking marijuana.
Gutierrez had about two beers and a joint. Id.; Gutierrez I, 899 N.E.2d at 1195. Nester
and Melissa, his 14-year-old sister who also lived in the house, were inside. Around
9:30pm, a car drove by the house and the occupants shouted rival gang slogans.
Gutierrez II, 2013 IL App (1st) 111309-U, ¶¶ 4–5, 10. Gutierrez and other witness’
testimony diverges from here.

Citations to docket filings generally refer to the electronic pagination provided by
CM/ECF, which may not be consistent with page numbers in the underlying documents.
2
To avoid confusion, the Court refers to members of the Castaneda family by their first
names.
1

2

Antonio, the prosecution’s sole eyewitness to Jorge’s murder, testified that
after the car drove by, he and Gutierrez went inside to retrieve a 9-mm handgun from
a safe in Nester’s room where Nester was sleeping. Id. at ¶ 5; Gutierrez I, 899 N.E.2d
at 1195. They returned to the yard and Gutierrez put the gun on top of his truck. Id.
Gutierrez, “stumbling and mumbling under the influence of the joint and beers,”
headed to his truck intending to go home. Gutierrez I, 899 N.E.2d at 1195. Antonio
and the others told Gutierrez to sit down, worried he might crash his truck again.
Gutierrez became enraged, grabbed the gun, and began cursing at the men. Antonio
ran into the garage and heard several shots fired. He also heard Jorge yelling at
Gutierrez to put the gun down. Gutierrez shot Jorge repeatedly. Antonio saw Jorge
laying on the ground. Then Antonio, Goofy, and Trigger fled the scene. Id.; Gutierrez
II, 2013 IL App (1st) 111309-U, ¶ 5.
Nester testified that he and Gutierrez were good friends and saw each other
daily. Two days before the shooting, Gutierrez told Nester that he liked Melissa.
Nester was displeased by this revelation and told Gutierrez that he needed to stop to
remain Nester’s friend. Nester and Jorge were protective of their sister. Id. at ¶ 7.
Nester and Melissa testified that after they heard the gunshots, Melissa ran
into Nester’s room. Gutierrez came into the room and, according to Melissa, Nester
stepped away from him. Nevertheless, Gutierrez shot Nester in the chest, stomach,
and groin. Melissa then ran upstairs and Gutierrez followed her. Id. at ¶¶ 6, 8. Nester
testified that Gutierrez was mumbling to himself but not stumbling. Id. at ¶ 8.
Melissa testified that Gutierrez tried to kiss her and banged her head against the

3

wall and told her repeatedly that he loved her. Nester struggled up the stairs to grab
Gutierrez and they fought before Gutierrez fled the house with the gun. Id. at ¶¶ 6,
8. When police arrived, Melissa told them that Gutierrez shot her brothers. Id. at ¶ 6.
Gutierrez’s account of the incident differed in key respects. According to him,
Jorge instigated the altercation. After the gang members drove by, Antonio alone
retrieved the gun from the house and handed it to Jorge. Trigger lit and passed
around a marijuana cigarette, and Gutierrez took “a couple drags off of it,” and drank
about two beers. Id. at ¶¶ 10–11. Antonio then told Jorge that Gutierrez was trying
to “hook up” with Melissa. In a rage, Jorge hit Gutierrez’s head with the butt of the
gun. Jorge and Antonio jumped on Gutierrez and they all struggled for the gun, which
Gutierrez wrestled from Jorge. At Jorge’s direction, Antonio went to the garage to
retrieve a gun from Jorge’s car. Jorge then picked up a piece of steel and approached
Gutierrez. Thinking Jorge was going to kill him, Gutierrez panicked and started
shooting as he ran into the house. Id. at ¶¶ 11–12. Nester then attacked Gutierrez,
and Gutierrez shot him. Gutierrez followed Melissa upstairs and told her not to
worry. Then he ran back to Jorge and pleaded with him to wake up. Gutierrez I, 899
N.E.2d at 1196. Police arrived on the scene within minutes. Id. at 1195.
Detective John Halloran testified that he spoke to Gutierrez within two hours
of the incident. He observed a cut on Gutierrez’s forehead and other bruises and
injuries, which Gutierrez said he sustained in the car accident five days earlier.
Gutierrez appeared calm, coherent, and didn’t slur his words. Gutierrez II, 2013 IL
App (1st) 111309-U, ¶ 9. He claimed he hadn’t shot anyone, that he was just hanging

4

out in the backyard, and that there was a “gap” in his memory before the arrest. He
also denied being on drugs or alcohol that day. On the stand, Gutierrez admitted that
he’d lied to police and that the cut on his forehead was from Jorge’s gun. Id. at ¶ 13.
It wasn’t until Gutierrez’s initial petition for postconviction relief that he claimed he’d
smoked marijuana laced with PCP prior to the shooting. [Dkt. 32-15 at 79.]
At trial, the court instructed the jury on first and second-degree murder.
Gutierrez II, 2013 IL App (1st) 111309-U, ¶ 14. The jury returned guilty verdicts for
first-degree murder, attempted first-degree murder, and aggravated battery with a
firearm, which was merged with the attempted first-degree murder count. Gutierrez
was sentenced to consecutive prison terms of 40 years for murder and 20 years for
attempted murder. Id. The court also considered Gutierrez’s prior convictions as
aggravating factors, including two convictions for aggravated battery. Gutierrez I, 899
N.E.2d at 1196.
B.

Direct Appeal

In June 2005, Gutierrez filed a direct appeal arguing that (1) his conviction
should be reduced to second-degree murder based on imperfect self-defense; and (2)
the trial court abused its discretion in sentencing him to 40 years for murder and 20
years for attempted murder. 3 [Dkt. 32-7.] The state appellate court affirmed, and the
Illinois Supreme Court denied Gutierrez’s petition for leave to appeal (“PLA”).

The Illinois Appellate Court affirmed the trial court’s decision to permit Gutierrez to
file a late notice of appeal due to ineffective assistance of appellate counsel. Gutierrez I, 899
N.E.2d at 1197–98.
3

5

Gutierrez I, 899 N.E.2d; People v. Gutierrez, 904 N.E.2d 982 (Ill. 2009) (Table); [Dkts.
32-12, 32-14.]
C.

Postconviction Proceedings
1.

First Postconviction Petition

In November 2009, Gutierrez filed through counsel a petition for state
postconviction relief. [Dkt. 32-15 at 37–92.] He also filed a pro se supplement to the
petition in March 2010. [Id. at 95–107; Dkt. 32-16 at 18.] The petition, as
supplemented, raised the following claims:
(1) Trial counsel was ineffective in failing to:
a. Investigate and present evidence for a voluntary intoxication defense;
b. Question a juror who equivocated during voir dire about her objectivity
and use a peremptory challenge against the juror;
c. Move to suppress Gutierrez’s statement to police based on his
intoxication and request for counsel;
d. Move to suppress evidence resulting from Gutierrez’s arrest;
e. Object to the trial court’s failure to admonish the venire that a
defendant’s choice not to testify may not be held against him;
f. Object to prejudicial comments made during the State’s closing
argument; and
g. Carry out the above actions, which had the cumulative effect of violating
his Sixth Amendment rights.
(2) The trial court failed to admonish the venire that a defendant’s choice not to
testify may not be held against him;
6

(3) The State knowingly relied on perjured testimony from Nester and Detective
Halloran;
(4) Gutierrez’s custodial statement to police should have been suppressed as
coerced;
(5) The State erred during closing argument in referring to Gutierrez’s post-arrest
silence and arguing facts not in evidence;
(6) Appellate counsel for the direct appeal was ineffective for failing to argue
grounds 1–3;
(7) Illinois’ truth-in-sentencing law is unconstitutional and void as applied to
Gutierrez’s sentence.
[Dkt. at 32-15 at 39–70, 95–107.]
Among other documents Gutierrez attached to his amended petition was his
affidavit stating that he smoked marijuana laced with PCP on the night of the
shooting, consumed alcohol, and couldn’t remember everything that occurred. He
stated that his trial counsel instructed him not to mention this information because
it wouldn’t help his self-defense claim. He also attached two letters he sent to counsel
before trial instructing counsel to locate Goofy and Trigger, who would confirm that
he was high on PCP, and suggesting that a pharmacologist testify about the effects
of PCP. The petition also included an affidavit from Trigger stating that Gutierrez
smoked marijuana laced with PCP on the night of the shooting, that only Trigger
knew it contained PCP, and that Gutierrez shot Jorge in self-defense. Gutierrez II,
2013 IL App (1st) 111309-U, ¶¶ 18–20; Dkt. 32-15 at 79, 81–90.]

7

The trial court granted the State’s motion to dismiss. [Dkt. 32-16 at 138–55.]
On appeal in June 2012, Gutierrez filed a counseled brief, which only argued that
trial counsel was ineffective for failing to investigate and present a voluntary
intoxication defense. [Dkt. 32-18.] Gutierrez moved to file a pro se supplemental brief,
but the state appellate court denied it, reasoning that the Office of the State Appellate
Defender (“OSAD”) had already filed one. [Dkt. 32-21.] In December 2013, the state
appellate court also affirmed the trial court’s order. Gutierrez II, 2013 IL App (1st)
111309-U. In January 2014, Gutierrez filed a petition for rehearing, which was
denied. [Dkts. 32-23, 32-24.] In February 2014, he filed a pro se PLA raising all the
claims in his postconviction brief and his denied supplemental brief. [Dkt. 32-25.] The
Illinois Supreme Court denied the PLA in March 2014. People v. Gutierrez, 5 N.E.3d
1126 (Ill. 2014) (Table).
2.
§ 2-1401 Petition and First Successive Postconviction
Petition
In March 2014, Gutierrez filed a petition for relief from judgment pursuant to
735 ILCS 5/2-1401. [Dkt. 32-27 at 33–39.] Citing Alleyne v. United States, 570 U.S.
99 (2013), he argued that the trial court’s imposition of consecutive sentences violated
his Sixth Amendment right to a jury trial where the fact used to trigger mandatory
consecutive sentences was not submitted to the jury. [Id.] In May 2014, the trial court
denied the petition, holding that his reliance on Alleyne was misplaced because
Alleyne doesn’t apply retroactively on collateral review. [Id. at 73–78.] The court also
noted that Gutierrez filed his §2-1401 petition over eight years after the two-year

8

statute of limitations expired and no exception applied because his claim was
meritless. [Id. at 76–78.]
While Gutierrez’s appeal was pending, he moved to file a successive
postconviction petition in June 2014, which raised the following arguments:
(1) His custodial statement to police should have been suppressed as coerced;
(2) The State knowingly relied on perjured testimony from Detective Halloran;
(3) The State withheld evidence of Detective Halloran’s misconduct in other cases;
(4) Trial counsel was ineffective for failing to move to suppress Gutierrez’s
statement, investigate Detective Halloran, and present a voluntary
intoxication defense; and
(5) A recently acquired expert affidavit supported Gutierrez’s voluntary
intoxication defense.
[Dkt. 32-28 at 8–67.] On November 6, 2014, the trial court denied the petition,
reasoning that Gutierrez failed to show cause or prejudice for failure to assert his
claims in previous filings, nor did he claim actual innocence, one of which is required
to file a successive postconviction petition. [Id. at 221–34.]
Gutierrez’s subsequent appeal was consolidated with his pending appeal of the
denial of his § 2-1401 petition. OSAD, Gutierrez’s appointed counsel, filed a motion
to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987). [Dkt. 32-29.] OSAD’s
position as to his § 2-1401 petition was that “there is no arguable claim that Alleyne
rendered Gutierrez’s consecutive sentences improper.” [Id. at 14.] As to his
postconviction petition, OSAD stated that none of the grounds raised in the petition

9

were “arguably meritorious.” [Id. at 15.] On March 23, 2016, the state appellate court
affirmed denial of both petitions and granted OSAD’s motion to withdraw. People v.
Gutierrez, 2016 IL App (1st) 141802-U.
3.

Second Successive Postconviction Petition

In May 2020, Gutierrez moved to file a second successive postconviction
petition, which he amended in April 2021. Gutierrez argued that, because he was 24
years old at the time of his offense, his 60-year sentence was an unconstitutional de
facto life sentence under Miller v. Alabama, 567 U.S. 460 (2012), the Eighth
Amendment, and the Proportionate Penalties Clause of the Illinois Constitution.
[Dkt. 131-2 at 4, 29.] The trial court denied his petition as frivolous and without merit,
[Dkt. 131-3], and on December 22, 2022, the state appellate court affirmed. People v.
Gutierrez, 2022 IL App (1st) 210916-U. The Illinois Supreme Court denied Gutierrez’s
PLA on September 27, 2023. People v. Gutierrez, 221 N.E.3d 326 (Ill. 2023) (Table).
4.

Resentencing

In May 2023, Gutierrez sought leave to file a third successive postconviction
petition, arguing that he should be resentenced because the sentencing court had
considered his prior convictions as aggravating factors under a statute that had since
been declared unconstitutional. [Dkt. 112-1 (citing People v. Aguilar, 2 N.E.3d 321
(Ill. 2013)).] The State agreed and in September 2024, his sentence was reduced to 37
years for first-degree murder and 15 years for attempted murder. [Dkts. 112-3, 1271.] Gutierrez filed a motion to reconsider in September 2024, which was pending as
of March 4, 2025. [Dkt. 127-2.]

10

D.

Habeas Petition

In April 2014, Gutierrez filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 while his postconviction petition was still pending. [Dkts. 1, 4.]
He then filed an amended petition in October 2017. [Dkt. 25.] In December 2020, the
Cout granted Gutierrez’s motion to stay while he pursued his second postconviction
petition. [Dkt. 53.] In 2023, Gutierrez requested that the stay be lifted to allow him
to file a second amended habeas petition, and the Court partly granted that request.
[Dkt. 90, 102.] Gutierrez filed his second amended petition on January 29, 2024,
asserting the same claims as in his first amended petition and arguing that his claims
are not defaulted. [Dkt. 106.] The second amended petition raises the following issues:
(1) Trial counsel was ineffective for failing to:
a. Investigate and present a voluntary intoxication defense [Id. at 4–11];
b. Move to suppress his custodial statement and evidence from his arrest,
and to investigate Detective Halloran [Id. at 11–22];
c. Question a juror who equivocated about her objectivity during voir dire
[Id. at 23–25];
d. Object to the State’s closing argument [Id. at 25–26];
e. Object to the trial court’s failure to admonish the venire that a
defendant’s choice not to testify cannot be held against him [Id. at 26–
28]; and
f. Carry out the above actions, which had the cumulative effect of violating
his Sixth Amendment rights [Id. at 28–29];

11

(2) The State relied on perjured testimony from Nester and Detective Halloran
[Id. at 29–31];
(3) The State withheld evidence related to Detective Halloran [Id. at 31–33];
(4) Gutierrez was initially detained for 72 hours in violation of Gerstein v. Pugh,
420 U.S. 103 (1975) [Id. at 33–39];
(5) Gutierrez’s custodial statement to police was coerced [Id. at 39–41];
(6) The trial court’s imposition of consecutive sentences violated his Sixth
Amendment right to a jury trial [Id. at 41–44];
(7) Appellate counsel was ineffective for failing to present Grounds 1(b)–(e) and
Ground 5 in his direct appeal. [Id. at 44–45.]
II.

Legal Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

28 U.S.C. § 2254, a petitioner in custody pursuant to the judgment of a state court
must make two showings to be eligible for a writ of habeas corpus: (1) “that he is in
custody in violation of the Constitution or laws or treaties of the United States,”
§ 2254(a), and (2) that the state postconviction court’s adjudication of his claim
“resulted in a decision that” either “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States,” or “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” § 2254(d)(1)–(2).
The requirements of § 2254 are difficult to clear. As the Supreme Court “has
stated unequivocally, and on more than one occasion, . . . ‘clearly established law as
determined by [the Supreme] Court refers to the holdings, as opposed to the dicta, of
12

[the Supreme] Court’s decisions as of the time of the relevant state-court decision.’”
Berkman v. Vanihel, 33 F.4th 937, 945 (7th Cir. 2022) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 660–61 (2004)). The “contrary to” prong does not apply unless
“the state court applies a rule that contradicts the governing law set forth in
[Supreme Court] cases . . . [or] confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at
a result different.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000). And a state court
decision is not an “unreasonable application” of clearly established federal law unless
it is “objectively unreasonable,” “lying well outside the boundaries of permissible
differences in opinion.” Felton v. Bartow, 926 F.3d 451, 464 (7th Cir. 2019) (cleaned
up). The decision must be “so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
III.

Analysis
Respondent argues that Grounds 1(b)–(e), 2–5, and 7 are procedurally

defaulted, and that Grounds 1(a) and 6 are barred by § 2254(d) and meritless.
A.

Claims Procedurally Defaulted

Federal courts may not review state prisoners’ habeas claims that have been
“procedurally defaulted in state court,” a doctrine that advances “comity, finality, and
federalism interests.” Davila v. Davis, 582 U.S. 521, 527–28 (2017). There are two
“paradigmatic” ways a petitioner can procedurally default a claim. Clemons v. Pfister,
845 F.3d 816, 819 (7th Cir. 2017) (quoting Richardson v. Lemke, 745 F.3d 258, 268
(7th Cir. 2014)). One is when a petitioner fails to “fairly present” a claim “throughout
13

at least one complete round of state-court review, whether on direct appeal of [the]
conviction or in post-conviction proceedings,” and “it is clear that those courts would
now hold the claim procedurally barred.” Id.; Perruquet v. Briley, 390 F.3d 505, 514
(7th Cir. 2004). Default also occurs when a state court denies a claim on an adequate
and independent state procedural ground. Davila, 582 U.S. at 527; Wilson v.
Cromwell, 69 F.4th 410, 418 (7th Cir. 2023), cert. denied sub nom. Wilson v. Gierach,
144 S. Ct. 1034 (2024); Flint v. Carr, 10 F.4th 786, 793 (7th Cir. 2021). A ground is
adequate if it is “firmly established and regularly followed.” Wilson, 69 F.4th at 419
(7th Cir. 2023) (quoting Clemons, 845 F.3d at 820). A ground is independent “if it does
not depend on the merits of the petitioner’s claim.” Flint, 10 F.4th at 793. (internal
quotation omitted). When a state court refuses to adjudicate a petitioner’s federal
claims because he didn’t raise them in accordance with the state’s procedural rules,
“that will normally qualify as an independent and adequate state ground for denying
federal review.” Id. at 794 (internal quotation omitted).
A court may excuse procedural default and reach the merits of a petitioner’s
claim if he “demonstrates either (1) cause for the default and actual prejudice or (2)
that failure to consider the claim will result in a fundamental miscarriage of justice.”
Snow v. Pfister, 880 F.3d 857, 864 (7th Cir. 2018) (internal quotation omitted); see
also Perruquet, 390 F.3d at 514 (“[The procedural default doctrine] provides only a
strong prudential reason . . . not to pass upon a defaulted constitutional claim
presented for federal habeas review” and “is therefore subject to equitable
exceptions.” (cleaned up)).

14

Cause for procedural default exists when the petitioner “‘can show that some
objective factor external to the defense impeded’ compliance with the procedural
rule.” Love v. Vanihel, 73 F.4th 439, 446–47 (7th Cir. 2023) (quoting Murray v.
Carrier, 477 U.S. 478, 488 (1986)). Prejudice requires a trial error that “worked to
[the petitioner’s] actual and substantial disadvantage.” Id. at 448 (cleaned up).
Finally, the miscarriage of justice exception “applies only in the rare case where the
petitioner can prove” actual innocence. Wilson, 69 F.4th at 420–21 (internal quotation
omitted).
Relevant here, Illinois’ Post-Conviction Hearing Act allows a petitioner to file
only one postconviction petition as a matter of right. 725 ILCS 5/122-1(f). Thereafter,
the petitioner must move for leave to file a successive postconviction petition, which
can only be granted if the petitioner shows cause for failing to bring his claims earlier
and prejudice results from that failure. Id.
1. Grounds 1(b)–(f) & 7: Ineffective Assistance of Counsel
Gutierrez claims in Grounds 1(b)–(f) and 7 that his Sixth Amendment rights
were violated by ineffective assistance of trial and appellate counsel. His trial counsel,
he maintains, failed to suppress statements and evidence, question a potentially
biased juror, and object to the State’s closing argument and the court’s failure to
properly admonish the venire. [Dkt. 106 at 11–29.] Gutierrez’s counsel on direct
appeal also failed to raise these issues and to argue that his custodial statement was
coerced. [Id. at 44–45.] Gutierrez first raised these claims in his initial postconviction
petition, which was denied. When his appellate counsel declined to raise them on

15

appeal, Gutierrez sought and was denied leave to file a supplemental brief including
them. He then raised them in his PLA, which was also denied.
Respondent argues that Grounds 1(b)–(e) and 7 were procedurally defaulted
when Gutierrez failed to raise them in his counseled brief on appeal of his initial
postconviction petition. 4 [Dkt. 130 at 11.] Gutierrez responds that, under Kizer v.
Uchtman, 165 F. App’x 465 (7th Cir. 2006), attempting to file a pro se supplemental
brief is enough to avoid procedural default, or that it excuses default because he gave
the state appellate court an opportunity to address each habeas ground asserted.
[Dkt. 106. at 1–3.]
Kizer only gets Gutierrez halfway to exhaustion. There, the Seventh Circuit
held that a pro se supplemental brief “fairly present[s]” the issues within for
exhaustion purposes even if the submitting party is denied leave to file. 165 F. App’x
at 468–69. But Kizer explicitly declined to consider whether a state appellate court’s
denial of leave to file a pro se supplemental brief constitutes an adequate and
independent state ground establishing procedural default. Id. at 467 n.1. Since then,
it’s made clear that it is, reasoning that Illinois’ general rule that hybrid
representation is disfavored is “an independent and adequate state ground of decision
[that] precludes federal habeas review.” Booker v. Baker, 74 F.4th 889, 893 (7th Cir.
2023) (quoting Clemons, 845 F.3d at 820). Gutierrez has given the Court no reason to
think that Illinois courts have substantially changed their position since Booker. See

Respondent didn’t address Ground 1(f), which claims that the cumulative effect of
errors in Grounds 1(a)–(e) amount to ineffective assistance of counsel. However, Ground 1(f)
is clearly procedurally defaulted for the same reasons that Grounds 1(b)–(e) are defaulted.
4

16

id. at 893 (petitioner bears the burden of showing a state procedural rule is not
adequate). Here, the state appellate court denied Gutierrez leave to file his pro se
supplemental brief because OSAD had already filed a brief on his behalf. [Dkt. 3221.] Based on prevailing precedent, Grounds 1(b)–(f) and 7 were fairly presented, but
denial of leave to file his pro se supplemental brief was an adequate and independent
state ground that nevertheless renders them procedurally defaulted.
Gutierrez argues that even if his claims were defaulted, cause and prejudice
excuse it. First, he suggests that his pro se supplemental brief establishes cause since
he gave the state appellate court an opportunity to hear his claims. [Dkt. 106 at 1,
23, 25.] This is the same as saying that the court’s decision to enforce Illinois’
prohibition on hybrid representation excuses his failure to heed the rule—it’s circular
and would swallow Booker’s holding that a state procedural rule is an adequate and
independent ground. Nor does it constitute “cause,” which must be an objective factor
“external to the defense”—meaning it “cannot be fairly attributable to” the
petitioner—that prevented Petitioner from raising his claim earlier. Davila, 582 U.S.
at 528. However, it was Gutierrez’s decision to engage counsel for his postconviction
appeal. He didn’t have a Sixth Amendment right to counsel at the postconviction
stage and so bore the risk of attorney error. Crutchfield v. Dennison, 910 F.3d 968,
973 (7th Cir. 2018) (citing Davila, 582 U.S. at 528–29). Therefore, Gutierrez’s
supplemental brief doesn’t establish cause.
After presenting Grounds 1(b)–1(e), Gutierrez’s petition contains “CauseRelatedness” and “Prejudice” sections relevant to these grounds in which he argues

17

cause and prejudice using the test for ineffective assistance of counsel set out in
Strickland v. Washington, 466 U.S. 668 (1984). [Dkt. 106 at 27–29.] In some cases,
attorney error can satisfy “cause” when it rises to the level of constitutionally
ineffective assistance of counsel. Davila, 582 U.S. at 528; Wrinkles v. Buss, 537 F.3d
804, 812 (7th Cir. 2008) (“When a habeas petitioner seeks to excuse a procedural
default through an ineffective-assistance claim, the ‘cause’ and ‘prejudice’ test from
Wainwright is replaced by the similar test for ineffective assistance set out in
[Strickland].”) Gutierrez doesn’t quite make this argument—his Strickland analysis
concerns the merits of his claims that trial and direct review appellate counsel were
ineffective and doesn’t explain how their ineffectiveness prevented him from raising
Grounds 1(b)–(e) on postconviction appeal. But in the interest of reading Gutierrez’s
pro se petition liberally, the Court notes that an ineffective assistance of
postconviction counsel claim could not cure the procedural default here.
First, a claim that ineffective assistance is cause to excuse procedural default
must have been raised before the state court. Mata v. Baker, 74 F.4th 480, 488 (7th
Cir. 2023). Gutierrez didn’t raise ineffective assistance of postconviction appellate
counsel at any stage. Second, “attorney error in postconviction proceedings is not
cause to excuse a procedural default” because “there is no Sixth Amendment right to
counsel on collateral review.” Booker, 74 F.4th at 894 (quoting Crutchfield, 910 F.3d
at 973); c.f. Garcia v. Dart, 2023 WL 6541304, at *9 (N.D. Ill. Oct. 6, 2023) (assessing
whether ineffective assistance of direct appeal counsel constitutes cause to excuse
procedural default), appeal dismissed sub nom. Garcia v. Baker, 2023 WL 11646678

18

(7th Cir. Nov. 28, 2023), and certificate of appealability denied sub nom. Garcia v.
Baker, 2024 WL 4763872 (7th Cir. June 12, 2024).
Lacking any other basis to excuse procedural default for Grounds 1(b)–(f) and
7, these claims are precluded from federal habeas review.
2. Grounds 2–3: Perjured Testimony and Brady Claim
As Respondent argues, Grounds 2 (the State relied on perjured witness
testimony) and 3 (the State withheld evidence related to Detective Halloran) are also
procedurally defaulted. Ground 2 was raised in Gutierrez’s initial postconviction
petition, but not his counseled brief on appeal. Ground 3 was raised for the first time
in Gutierrez’s successive postconviction petition, which the state appellate court
denied leave to file. Neither made it through a full round of state court review, as
required for exhaustion. Gutierrez argues that his claims are not defaulted because
he attempted to raise them in his pro se supplemental brief but, for reasons already
explained supra Part III.A.1., this is insufficient to avoid procedural default.
Consequently, Grounds 2 and 3 are procedurally defaulted. Gutierrez attempted to
raise Grounds 2 and 3 again in his motion for leave to file a first successive
postconviction petition. The trial court denied leave because Gutierrez failed to show
cause for not raising his claims earlier and prejudice therefrom, which is also “an
adequate and independent state ground precluding federal habeas review.” Thomas
v. Williams, 822 F.3d 378, 385 (7th Cir. 2016). Grounds 2 and 3 are procedurally
defaulted without excuse.

19

3. Ground 4: Gerstein Claim
In Ground 4, Gutierrez claims that he was detained by Detective Halloran for
72 hours without a judicial determination of probable cause in violation of Gerstein v.
Pugh, 420 U.S. 103 (1975), which holds that the “Fourth Amendment requires a
timely judicial determination of probable cause as a prerequisite for detention.” 420
U.S. at 126; [Dkt. 106 at 33]. Probable cause determinations made within 48 hours of
arrest are presumptively prompt. Matz v. Klotka, 769 F.3d 517, 527 (7th Cir. 2014).
Respondent argues that Ground 4 is also inexcusably procedurally defaulted.
[Dkt. 130 at 12–13.] Gutierrez didn’t raise his Gerstein claim until he moved to file a
supplemental brief on appeal of his initial postconviction petition. [Dkt. 32-25 at 4.]
For the reasons above, attempting to raise a claim in a denied pro se supplemental
brief is insufficient to excuse procedural default. See supra Part III.A.1.
Consequently, he failed to exhaust the claim through a complete round of state court
review. Gutierrez raised Ground 4 again in his PLA and motion to file a successive
postconviction petition, both of which were denied. Thomas, 822 F.3d at 385 (state
court denial of leave to file petition for failure to show cause is an adequate and
independent ground).
Gutierrez argues that interference by government officials prevented him from
raising Ground 4 earlier, prejudicing his case. [Dkt. 106 at 34–38.] As to cause, he
alleges that the general policies at Menard Correctional Center (“Menard”) so
restricted his ability to conduct legal research at the law library that it was
“impossible” for him to “discover his issues” to include in his first postconviction

20

petition. 5 [Dkt. 106 at 37.] As a result, he lost “meaningful access to the courts,” and
failed to exhaust his claim. [Id. at 36 (citing Lewis v. Casey, 518 U.S. 343 (1996);
Bounds v. Smith, 430 U.S. 817 (1977)).] Among these policies, Gutierrez claims that
prisoners are only allowed to access the library for a maximum of 1.5 hours per week,
subject to further restrictions based on whether the prisoner has a court deadline
within the next 90 days; restrictive policies limit legal research time inside the
library, effectively denying prisoners even 1.5 research hours per week; law clerks at
the library are not knowledgeable about the law; and lockdowns occur for weeks or
months at a time, disrupting library access and creating a backlog of prisoners
waiting to access it. [Dkt. 106 at 34–37.]
“[C]laims of cause based on lack of access to a library” are evaluated “on a caseby-case basis.” Williams v. Buss, 538 F.3d 683, 686 (7th Cir. 2008). Libraries provide
one medium for inmates to exercise their right to access courts, but the Supreme
Court has admonished parties that, because there is no “abstract, freestanding right
to a law library or legal assistance,” actual harm can’t be shown just by establishing
that a “law library or legal assistance program is subpar in some theoretical sense.”
Lewis, 518 U.S. at 351. Instead, a prisoner must show that the prison’s policy
“actually hampered” pursuit of their legal claim. Lehn v. Holmes, 364 F.3d 862, 868
(7th Cir. 2004). Gutierrez has not done so.

The record indicates that Gutierrez was housed at Menard when his initial
postconviction petition supplemental brief and PLA were filed. [Dkts. 32-15 at 107; 32-28 at
66.]
5

21

First, Gutierrez was represented by appointed counsel consistently until
OSAD withdrew during the appeal of his successive postconviction petition. But
Gutierrez didn’t explain how reduced access to Menard’s library affected his counsel’s
ability to bring a Gerstein claim in his initial postconviction petition or on appeal. A
person who is offered appointed counsel but chooses to proceed pro se does not,
through their denial, acquire the right to access a law library. United States v. Byrd,
208 F.3d 592, 593 (7th Cir. 2000). It stands to reason then that neither does a person
who accepts counsel’s assistance, at least where counsel hasn’t been shown to be
constitutionally ineffective. See, e.g., Tasby v. Heimlick, 2013 WL 620560, at *7 (N.D.
Ind. Feb. 19, 2013) (petitioner assisted by stand-by counsel not entitled to access law
library).
Second, even if Gutierrez lacked counsel at the initial postconviction stage, he
hasn’t shown that Menard’s policies actually prevented him from raising a Gerstein
claim earlier, for instance, in his pro se supplement to his initial postconviction
petition. It’s easy to see how the policies he describes—the existence of which
Respondent doesn’t contest—could make it difficult for an inmate to conduct fulsome
legal research and meet court deadlines, especially if they lose time due to lockdowns
or are stuck behind a backlog of inmates with more pressing deadlines. Indeed, courts
in this circuit are no stranger to complaints about Menard’s library policies. See, e.g.,
United States ex rel. Deloach v. Rednour, 2010 WL 3893856, at *3 n.2 (N.D. Ill. Sept.
30, 2010) (collecting cases). But Gutierrez provided no details explaining how these
policies affected him. For example, he didn’t specify when the policies were in place,

22

indicate how much time he was allotted in the library, or call out any specific factors
that inhibited his access, such as days he was on lockdown. See, e.g., United States ex
rel. Plummer v. Gaetz, 2009 WL 458620, at *3 (N.D. Ill. Feb. 23, 2009) (failure to
specify what days Menard was on lockdown prevented petitioner from demonstrating
lack of access to library sufficient to toll statute of limitations). Instead, he described
the policies as they exist in the abstract, which is insufficient to demonstrate cause.
Lewis, 518 U.S.
Additionally, any claim that Menard’s policies impeded Gutierrez’s ability to
conduct legal research is belied by the multiple briefs he filed while housed there, all
of which are lengthy, cogent, and filled with legal citations and citations to the record.
See, e.g., Henyard v. Butler, 2016 WL 5171783, at *7 (N.D. Ill. Sept. 21, 2016) (welldeveloped pro se briefs undermined petitioner’s claim that lack of library access
excused procedural default). For example, his supplement to his initial postconviction
petition raises seven claims over 13 pages (excluding appendices) and is well-cited.
[Dkt. 32-15 at 95–107.] After his appeal was denied, he filed a 20-page pro se PLA
that is also sufficiently researched to state his claims. [Dkt. 32-25.] With this level of
pro se advocacy, the Court cannot conclude that Menard’s policies prevented
Gutierrez from identifying and raising his Gerstein claim earlier.
The record also demonstrates that Ground 4 lacks merit. In denying
Gutierrez’s first successive postconviction petition, the trial court noted that there
was no evidence that Gutierrez was “interrogated for 72 hours,” as he claimed. [Dkt.
32-28 at 228.] Although this allegation appeared in the context of a coerced confession

23

claim rather than a Gerstein claim, it’s nonetheless critical to the latter. Gutierrez
claims that he stated in an affidavit that he was interrogated for 72 hours, [Dkt. 106
at 38], but the Court was unable to locate that affidavit and it’s not included in the
exhibit list for Gutierrez’s first successive postconviction brief [Dkt. 32-28 at 67] or in
the exhibits to the instant petition, [Dkt. 136.] Because Gutierrez has failed to show
cause and prejudice, there is no excuse for his failure to exhaust Ground 4.
4. Ground 5: Coercion Claim
Next, Gutierrez asserts in Ground 5 that Detective Halloran coerced his
custodial statement in violation of the Fifth Amendment. [Dkt. 106 at 39–41.] As
Respondent correctly argues, Gutierrez didn’t exhaust Ground 5 through a full round
of state court review. He first presented this claim in his initial postconviction
petition but didn’t reassert it on appeal. [Dkt. 32-15 at 102.] Gutierrez then attempted
to raise it in his motion to file a supplemental pro se brief, but as above, this was
insufficient to preserve his claim. See supra Part III.A.1. Gutierrez also raised
Ground 5 in his PLA and first successive postconviction petition, which were denied.
Gutierrez incorporates his cause and prejudice argument for Ground 4: that
the conditions of his confinement impeded his ability to access Menard’s law library
and discover his claims in time to exhaust them. [Dkt. 106 at 40.] This argument
doesn’t establish cause for Ground 5 for the same reasons it didn’t for Ground 4:
Gutierrez had counsel for his initial postconviction and didn’t show a lack of access
to Menard’s library. In fact, he raised Ground 5 in pro se briefs filed while housed at
Menard. Consequently, Ground 5 is procedurally defaulted without excuse.

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B.

Claims Barred by § 2254(d) and Merits

Respondent acknowledges that Grounds 1(a) and 6 were properly exhausted
through the state courts but argues that they’re nonetheless barred by § 2254(d)
and/or fail on the merits.
1.

Ground 1(a): Ineffective Assistance of Counsel

In Ground 1(a), Gutierrez contends that his trial counsel was ineffective for
failing to investigate and present a voluntary intoxication defense. 6 He maintains
that testimony from Trigger (Marco Canas) and an expert neuropharmacologist
would have supported the defense, and counsel was ineffective for failing to contact
them. Additionally, testimony from Antonio and Nester was consistent with
voluntary intoxication. 7 [Dkt. 106 at 3–8.] Gutierrez exhausted this claim through
the state courts, so § 2254(d) governs the Court’s analysis.
i.

Strickland Standard

To prevail on a claim for ineffective assistance of counsel under Strickland,
Garcia must demonstrate that (1) “counsel’s performance was deficient” and (2) “the
deficient performance prejudiced the defense.” 466 U.S. at 687. The first prong
requires a showing “that counsel’s representation fell below an objective standard of
reasonableness,” or was “outside the wide range of professionally competent

Voluntary intoxication was available as an affirmative defense when Gutierrez’s
offense occurred in 2000. The Illinois General Assembly removed it in 2002. Gutierrez II, 2013
IL App (1st) 111309-U, ¶ 3 n.1.
7
Gutierrez’s habeas petition also argues that investigation would have uncovered
evidence of Detective Halloran’s history of abuse and led to a motion to suppress. [Dkt. 106
at 10–11.] This same claim was presented in Ground 5 and wasn’t exhausted through the
state courts, so the Court only addresses it in Part III.A.4.
6

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assistance,” judged “under prevailing professional norms.” Id. at 688, 690. A court
deciding an ineffective assistance claim “must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of
counsel’s conduct.” Id. at 690. Additionally, to help eliminate “the distorting effects of
hindsight,” the court “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689. Once a
petitioner has established that counsel’s performance was deficient, he must then
demonstrate that counsel’s deficient performance prejudiced his defense. To do so, a
petitioner must show “that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. “A reasonable probability is a probability sufficient to undermine confidence in
the outcome.” Id.
ii.

Application

For AEPDA deference purposes, the Court looks to the “last reasoned statecourt decision” addressing the merits of this claim. Dassey v. Dittmann, 877 F.3d 297,
302 (7th Cir. 2017) (en banc) (quoting Johnson v. Williams, 568 U.S. 289, 297 n.1
(2013)). Here, that was the state appellate court’s decision on postconviction appeal,
Gutierrez II, 2013 IL App (1st) 111309-U. Because that decision neither was contrary
to nor involved an unreasonable application of the Supreme Court’s caselaw, the
Court must deny relief. 28 U.S.C. § 2254(d).
Starting with the “contrary to” prong, the state appellate court correctly
identified and articulated Strickland as the standard governing an ineffective

26

assistance of counsel claim. Gutierrez II, 2013 IL App (1st) 111309-U, ¶ 24 (citing
Strickland’s two-pronged standard). The court also noted that as to the first prong
(the performance prong), the petitioner “must overcome a strong presumption that
the challenged action or inaction of counsel was the product of sound strategy and not
of incompetence.” Id.
Gutierrez’s primary argument is that the appellate court unreasonably applied
Strickland because it assessed counsel’s failure to bring a voluntary intoxication
defense based on the trial record rather than scrutinizing the adequacy of counsel’s
pretrial investigation of this defense. [Dkt. 106 at 4–5.] He’s correct that Strickland’s
standard for deficient performance is different for “strategic choices made after
thorough investigation of law and facts relevant to plausible options,” and “strategic
choices made after less than complete investigation.” The former are “virtually
unchallengeable,” while the latter are “reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.” 466 U.S.
at 690–91. Consequently, where a Strickland claim involves an allegedly inadequate
investigation, the proper question “is not whether counsel should have presented” a
specific defense but rather “whether the investigation supporting counsel’s decision
not to” pursue it “was itself reasonable.” Wiggins v. Smith, 539 U.S. 510, 522–23
(2003). Conversely, a court cannot simply assume that the scope of counsel’s
investigation was reasonable. Id. at 527.
According to Gutierrez, the appellate court erred in only analyzing the viability
of a voluntary intoxication defense based on the evidence presented at trial. Instead,

27

it should have asked whether counsel was reasonable in deciding not to interview
Trigger about the incident, and not to consult an expert about the effects of PCP. Had
counsel done so, Gutierrez claims, he would have obtained information supporting
Gutierrez’s contention that he was intoxicated by PCP, marijuana, and alcohol during
the incident. [Id. at 7.] A neuropharmacological expert would have further supported
a voluntary intoxication defense by attesting to the effects of these substances on a
person’s cognitive and physical capabilities, including the potential for PCP to induce
psychosis, hostility, agitation, and a sense of derealization. [Id. at 8–9.] Combined
with the fact that Gutierrez ingested alcohol, marijuana, and PCP, that he initially
told counsel and law enforcement that he had gaps in his memory, that Antonio
testified that he was stumbling and attacked Jorge unprovoked, and that Nester
testified he was mumbling to himself, Gutierrez argues that there is a reasonable
probability that a voluntary intoxication defense would have prevailed at trial.
Gutierrez is also correct that the state appellate court didn’t focus its analysis
on the scope of his counsel’s pretrial investigation. The court noted based on a de novo
review of his petition, attached affidavits, and the trial record that his trial counsel
was “aware of the possible intoxication defense” and that his decision to present a
self-defense theory instead was “sound strategy” but didn’t expand on what trial
counsel knew or why he didn’t explore an intoxication defense further, as the state
trial court that it ultimately affirmed did. [See Dkt. 32-16 at 142–46.]
However, the court didn’t unreasonably apply Strickland because it found that
Gutierrez suffered no prejudice from counsel’s failure to present a voluntary

28

intoxication defense. A court can, for efficiency reasons, resolve a Strickland claim on
the prejudice prong alone. 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 as a result of the alleged deficiencies.”). In this case, it’s abundantly
clear that voluntary intoxication was unavailable to Gutierrez as a matter of state
law, regardless of counsel’s investigation. To assert a voluntary intoxication defense,
a defendant must show that “his inebriated state was so extreme that it suspended
his power of reason and rendered him incapable of forming a specific intent to commit
the offense.” Gutierrez II, 2013 IL App (1st) 111309-U, ¶ 34. Consequently, “[a]
defendant may not rely on the defense of voluntary intoxication if he admits
remembering the offense.” Id. at ¶ 36 (citing People v. McCoy, 666 N.E.2d 805, 811
(Ill. App. Ct. 1996)). Fatal to Gutierrez’s claim, the court reasoned, is the fact that
Gutierrez gave a “detailed recollection of his specific intent to shoot Jorge and Nester”
at trial. Id. at ¶ 36. Gutierrez didn’t attempt to rebut this description of his trial
testimony, so it is presumed correct. § 2254(e)(1) (state court’s determination of a
factual issue presumed correct in habeas action). Federal courts are also bound by a
state court’s ruling on an issue of state law. Shaw v. Wilson, 721 F.3d 908, 914 (7th
Cir. 2013). Here, the state appellate court determined that a voluntary intoxication
defense was unavailable because Gutierrez recounted the incident in detail (including
his intent to harm Jorge and Nester), so he clearly had enough presence of mind to
form specific intent. This being an issue of state law, the Court is bound by that

29

finding and can only conclude that Gutierrez’s trial counsel did not prejudice his case
by failing to investigate and present a voluntary intoxication defense.
The state appellate court also referenced other facts in the record that would
undercut a voluntary intoxication defense: Nester and Melissa’s trial testimony
provided evidence of motive (that Gutierrez may have been disappointed by Melissa’s
rejection of his and her brothers’ disapproval of his interest in their sister); and
Trigger, who Gutierrez insists trial counsel should have interviewed, signed an
affidavit matching Gutierrez’s account of the incident and supporting his self-defense
theory, which undermines the claim that Gutierrez didn’t remember what happened
and could have succeeded on voluntary intoxication. Gutierrez II, 2013 IL App (1st)
111309-U, ¶¶ 25, 29, 35. The Court concludes that the state appellate court
reasonably found that Gutierrez wasn’t prejudiced by trial counsel and denies
Gutierrez relief on Ground 1(a).
2.

Ground 6: Consecutive Sentences

Finally, Gutierrez argues in Ground 6 that the trial court’s imposition of
consecutive sentences violated his Sixth Amendment right to a jury trial. Gutierrez
relies on Alleyne, which held that facts that increase a mandatory minimum sentence
must be submitted to the jury. 570 U.S. Alleyne extended Apprendi v. New Jersey,
which held that facts that increase a statutory maximum sentence must be submitted
to the jury. 530 U.S. 466 (2000). Gutierrez argues that his consecutive sentences are
void because the fact he alleges extended his mandatory sentence, “severe bodily
injury,” wasn’t submitted to the jury.

30

He first raised this claim in his § 2-1401 motion, [Dkt. 32-27], which the trial
court reasonably denied because (1) the Supreme Court has not said Alleyne is
retroactive on collateral review and (2) the Seventh Circuit has suggested that it’s
unlikely to be declared retroactive since Alleyne is an extension of Apprendi, which is
decidedly not retroactive. [Id. at 78 (citing Simpson v. United States, 721 F.3d 875,
876 (7th Cir. 2013)).] The Seventh Circuit continues to hold that Alleyne does not
apply retroactively. Crayton v. United States, 799 F.3d 623, 624 (7th Cir. 2015), cert.
denied, 577 U.S. 958 (2015). Consequently, the Court must also conclude that Alleyne
isn’t retroactive on collateral review and affords Gutierrez no relief.
Even if Alleyne were retroactive, Gutierrez’s claim would still fail on the merits
because the facts triggering his mandatory consecutive sentences was found beyond
a reasonable doubt. Under Illinois law, consecutive sentences for any two felony
offenses are mandatory if “one of the offenses for which defendant was convicted was
first degree murder or a Class X or Class 1 felony and the defendant inflicted severe
bodily injury.” 730 ILCS 5/5-8-4(a)(i) (West 2002). 8 Illinois courts hold that
mandatory consecutive sentences are necessary if a defendant is found guilty of firstdegree murder, even without a separate finding of “severe bodily injury” because it
“necessarily results in the most severe bodily injury—death.” People v. Orasco, 2014
IL App (3d) 120633, ¶ 34, vacated on other grounds by People v. Orasco, 45 N.E.3d
681 (Ill. 2016); see, e.g., People v. King, 2024 IL App (4th) 230648-U, ¶ 63, appeal
denied, 2025 WL 379894 (Ill. Jan. 29, 2025) (“[O]ne of the offenses for which
This language is found in later versions of the statute and currently at 730 ILCS 5/58-4(d)(1) (West 2025).

8

31

defendant was convicted was first degree murder, so those murder convictions
triggered mandatorily consecutive sentencing.”). Because Gutierrez was convicted of
first-degree murder, consecutive sentences were mandatory even though the question
of “severe bodily injury” wasn’t submitted to the jury. The Court denies Gutierrez
relief on Ground 6. 9
IV.

Certificate of Appealability and Right to Appeal
This Court’s denial of Gutierrez’s petition is a final decision ending the case.

Gutierrez may appeal only if he obtains a certificate of appealability from this Court
or the Court of Appeals. 28 U.S.C. § 2253(c)(1)(A). The Court declines to issue a
certificate of appealability because Gutierrez does not make a substantial showing of
the denial of a constitutional right, see § 2253(c)(2), and reasonable jurists would not
debate, much less disagree with, this Court’s resolution of his claims. See Arredondo
v. Huibregtse, 542 F.3d 1155, 1165 (7th Cir. 2008). If Gutierrez wishes to appeal, he
must request a certificate of appealability from the Court of Appeals pursuant to
Federal Rule of Appellate Procedure 22 and 28 U.S.C. § 2253(c), in addition to filing
his notice of appeal.
Gutierrez must file a notice of appeal in this Court within 30 days after
judgment is entered. Fed. R. App. P. 4(a)(1). He need not bring a motion to reconsider

Respondent also argues that the Seventh Circuit has suggested Alleyne and Apprendi
don’t apply to facts mandating consecutive sentences since “the imposition of consecutive
sentences on separate counts of conviction does not have the effect of pushing a sentence on
any one count above the statutory maximum for a single count of conviction.” [Dkt. 130 at 17
(quoting United States v. Garcia, 754 F.3d 460, 473 (7th Cir. 2014)).] The Court need not
reach this argument since Alleyne isn’t retroactive and wouldn’t provide Petitioner relief if it
were.

9

32

this decision to preserve his appellate right, but if he wishes the Court to reconsider
its judgment, he may file a motion under Federal Rule of Civil Procedure 59(e) or
60(b). A Rule 59(e) motion must be filed within 28 days of entry of judgment and
suspends the deadline for filing an appeal until the motion is ruled on. See Fed. R.
Civ. P. 59(e); Fed. R. App. P. 4(a)(4)(A)(iv). A Rule 60(b) motion must be filed within
a reasonable time and, if seeking relief under Rule 60(b)(1), (2), or (3), must be filed
no more than one year after entry of the judgment or order. See Fed. R. Civ. P.
60(c)(1). A Rule 60(b) motion suspends the deadline for filing an appeal until the
motion is ruled on only if the motion is filed within 28 days of the judgment. Fed. R.
App. P. 4(a)(4)(A)(vi). The time to file a Rule 59(e) or 60(b) motion cannot be extended.
See Fed. R. Civ. P. 6(b)(2).
V.

Conclusion
For the foregoing reasons, the second amended petition for a writ of habeas

corpus [Dkt. 106] is denied. The Court declines to issue a certificate of appealability
pursuant to 28 U.S.C. § 2253(c). Final judgment shall enter in favor of Respondent
Barwick and against Petitioner Gutierrez. Civil case terminated.

Enter: 14-cv-2799
Date: March 11, 2025

__________________________________________
Lindsay C. Jenkins
United States District Judge

33