Brown v. Stephanie
MEMORANDUM OF Opinion: The Court denies Brown's Petition and declines to issue a COA. Signed by the Honorable Charles P. Kocoras on 11/29/2017. Mailed notice(vcf, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
VICTOR CALLOWAY, Warden, Danville
16 C 10249
MEMORANDUM OF OPINION
CHARLES P. KOCORAS, District Judge:
Before the Court is Petitioner Stephen Brown’s (“Brown”) Petition for Writ of
Habeas Corpus (“Petition”). For the following reasons, Brown’s Petition is denied,
and the Court declines to issue Brown a certificate of appealability (“COA”).
The following facts are drawn from the Illinois Appellate Court’s statement of
facts on direct appeal. People v. Brown, 2014 IL App (1st) 121750-U (unpublished).
Because Brown has not contested the state appellate court’s findings nor rebutted
them with clear and convincing evidence, the court’s findings are “presumed to be
correct.” 28 U.S.C. § 2254(e)(1).
In 2009, Brown was convicted following a bench trial in the Circuit Court of
Cook County, Illinois, of predatory criminal sexual assault, aggravated criminal
sexual assault, and additional convictions later vacated on direct appeal. Acting pro
se pretrial, Brown filed motions alleging Miranda, ex post facto, and double jeopardy
violations, alongside an allegation that the State failed to give him adequate notice of
the charges. The trial court denied his ex post facto and double jeopardy claims on
the merits and scheduled a hearing for the Miranda claims. The Miranda hearing was
struck after Brown accepted representation of counsel, who withdrew all pro se
The victim (“L.W.”), Brown’s granddaughter, who was nine years old at the
time of the offense, testified that on February 9, 2007, she, her ten-year-old sister
(“D.W.”), and their younger brother spent the afternoon with Brown, an electrician, at
several of his worksites. This was not unusual, according to L.W. At one work site
that afternoon, Brown told L.W.’s siblings to stay in the car while he took L.W. alone
into a building. Once inside, Brown put his coat on the floor and ordered L.W. to lay
down on the coat. Brown took off his pants, instructed L.W. to remove her pants, and
then got on top of her, where he “put his long thing” on her “private part.” Brown
was breathing heavily and touched his private part to L.W.’s for a few minutes. L.W.
never saw Brown’s penis, but she confirmed that she felt it.
Brown stopped rubbing against L.W. when he got up to answer a call on his
cell phone from D.W. Brown and L.W. got dressed and began walking to the car. As
they walked, Brown looked at L.W., put a finger over his mouth, and told her, “don’t
tell nobody.” L.W. did not speak to her siblings in the car-ride about the episode.
Once home, L.W. told her mother (“Geneva”), who is also Brown’s daughter,
Geneva took L.W. to the hospital, where she underwent an
examination and reported what happened to medical personnel, police officers, and
Children’s Advocacy Center employees.
D.W. confirmed L.W.’s testimony that Brown took the children to the work site
that day and brought L.W. into the building alone. As D.W. waited, her mother called
her cell phone. D.W. told Geneva that Brown was in a building with L.W. and that
they had been there for a long time. D.W. also confirmed that L.W. talked to Geneva
when they arrived home. When D.W. asked her sister what happened, L.W. pointed
to her “private part” and responded that Brown was “feeling on her” and “made her
lay on him.”
Geneva confirmed that Brown picked up her children that day and took them
to do some repairs at her uncle’s church. When Brown did not return the children at
the expected time, Geneva called Brown and D.W. on their cell phones. When Brown
dropped off the children, Geneva asked him why he did not answer the phone, why he
was gone so long, and why he was alone with L.W. in a building. Brown provided no
direct answers. After he left, Geneva took L.W. to the hospital.
Barbara Doherty (“Doherty”), a registered nurse with sexual assault training,
testified that she examined L.W. at the hospital. L.W. informed Doherty that Brown
removed both of their pants, instructed her to lie on top of him, and then kissed her on
her lips. Brown then kept “pushing” his private parts against L.W.’s, “touching the
outside of her private parts” with his “private parts.”
Doherty collected L.W.’s
clothing, vaginal, anal, and inner thigh swabs, and a blood sample. Doherty noted that
L.W. arrived at the hospital without underwear and had what appeared to be dried
secretions on her inner thighs. Doherty provided all of the samples in a sealed sexual
assault kit to a Chicago police officer.
Doctor Nadhi Kukreja (“Kukreja”), a pediatric resident, testified that he
performed a sexual assault examination on L.W. Kukreja confirmed that L.W. had
recounted to him substantially the same account as she had to Doherty, that there was
what appeared to be a moist smear on L.W.’s inner thigh, and that Doherty collected
the samples as she testified to. Kukreja also noted no obvious signs of trauma or
injury to L.W.
Detective Greg Grandon (“Grandon”), a member of the Chicago Police
Department’s Special Investigations Unit, testified that he met with Brown the day
after the assault. Grandon Mirandized Brown, who then agreed to speak with him.
Brown denied any type of sexual conduct with L.W. and asserted that his daughter
Geneva and his then-wife, Michelle Brown (“Michelle”), had fabricated the story.
Brown stated that he believed Geneva and Michelle had taken a used condom of his
and saved its contents in the refrigerator or freezer. Brown believed that Michelle had
discovered his affairs with other women and speculated that she wanted to punish
him. Brown was cooperative with Grandon and agreed to provide a buccal sample.
Greg Didomenic, a forensic scientist and DNA coordinator for the Illinois State
Police, testified that he obtained a sexual assault kit of L.W.’s and the swabs each
tested positive for semen. Janet Youngsteadt, a forensic scientist with the Illinois
State Police, testified that Brown’s DNA could not be excluded as the male donor of
the DNA found on L.W.’s vaginal swab and that Brown’s DNA profile was
conclusively determined to be present on L.W.’s rectal and inner thigh swabs.
Brown called Michelle, his ex-wife and L.W.’s grandmother, as his only
witness. Michelle testified that, on the evening of the assault, she drove to the
hospital after receiving a call from her daughter Geneva. When Michelle returned
home, she immediately had the locks changed. She also sought and obtained an order
of protection against Brown, effectively prohibiting him from returning to their home,
and initiated divorce proceedings. Michelle denied threatening to send Brown to jail,
did not recall overhearing her daughter threaten Brown, and denied saving Brown’s
semen to plant as evidence against him.
Except as to two not-guilty findings on charges of criminal sexual abuse and
criminal sexual assault predicated on the use of force, after conducting a bench trial,
the trial court found Brown guilty and sentenced him to concurrent prison terms of
twenty-eight, fifteen, and seven years.
On February 7, 2013, Brown’s appellate counsel filed a brief seeking vacatur of
six of Brown’s seven convictions as violative of Illinois’ one-act, one-crime doctrine.
Appellate counsel also challenged as impermissible several factors the trial court
considered at sentencing.
On February 27, 2013, Brown requested permission to file a supplemental pro
se brief, alleging: (1) his Miranda rights were violated; (2) the evidence was
insufficient to support his conviction; (3) double jeopardy was violated per the civil
order of protection that preceded his criminal charges; (4) indictment and ex post
facto violations base on insufficient notice of the charges and Brown’s contention that
the Illinois Criminal Code was invalid; and (5) trial counsel was ineffective. On
March 8, 2013, the state appellate court denied Brown’s motion seeking leave to file
the supplemental brief, noting that it had already received a counseled brief.
On June 11, 2014, the Illinois Appellate Court rejected Brown’s argument that
the trial court had considered impermissible sentencing factors, but it vacated five of
Brown’s convictions and remanded for resentencing in light of the one-act, one-crime
doctrine. On May 27, 2015, the Illinois Supreme Court denied Brown’s petition for
leave to appeal. Brown was resentenced on June 23, 2016, to concurrent prison terms
of seventeen and seven years. Brown did not appeal from resentencing or seek
collateral review in state court.
On October 31, 2016, Brown filed a 28 U.S.C. § 2254 petition for writ of
habeas corpus, forwarding eight claims: (1) he was denied the right to proceed pro se
in his direct appeal; (2) the State failed to advise him of his Miranda rights; (3) the
evidence was insufficient to support conviction; (4) his convictions violate the double
jeopardy prohibition per the civil order of protection that preceded his criminal
convictions; (5) his convictions violate the ex post facto clause because the Illinois
Compiled Statutes are invalid; (6) the charging document failed to provide adequate
notice of the charges; (7) he was denied effective assistance of trial counsel because
(a) counsel had a conflict of interest, (b) counsel failed to properly investigate, (c)
counsel’s advice to waive Brown’s right to testify and to a jury trial was deficient, and
(d) counsel should have raised Claims 2, 4, 5, and 6 at trial; and (8) appellate
counsel’s failure to raise Claims 2 through 7 on direct appeal demonstrate ineffective
assistance of counsel.
Claim 1 – Brown’s Right to Self-Representation on Direct Appeal
There is no federal constitutional right to self-representation on direct appeal
from a criminal conviction. Martinez v. Court of Appeal of Cal., Fourth Appellate
Dist., 528 U.S. 152, 163 (2000). Therefore, Brown’s claim that he was denied the
right to proceed pro se in his direct appeal cannot sustain a § 2254 petition. Claim 1
Procedural Default – Claims 2 Through 7
In its recent decision in Clemons v. Pfister, 845 F.3d 816 (7th Cir. 2017), the
Seventh Circuit decided a case of eminently similar posture to the instant matter. In
Clemons, the petitioner appealed for review of the trial court’s denial of his
postconviction petition. Id. at 818. Appellate counsel for the petitioner briefed a
single claim regarding evidentiary error. The petitioner then filed a pro se motion
setting forth a Strickland ineffective assistance of trial counsel claim to supplement
his appellate counsel’s brief. The appellate court said it would take the pro se brief
with the merits of the appeal. Id.
The appellate court issued a merits order affirming denial of the postconviction
petition, addressing only the arguments raised in the petitioner’s counseled briefs and
making no mention of the pro se brief. Id. The merits order was followed with a
clarifying order noting that the pro se brief was denied and only the counseled brief
was considered in the Illinois Appellate Court’s decision-making process. The case
then moved to federal court, where the district judge denied the petition in its entirety
for reasons mostly unrelated to the Seventh Circuit’s narrow holding on appeal. Id. at
In its review, the Seventh Circuit noted that procedural default can occur “if the
state court rejects a federal claim based on a state procedural rule ‘that is both
independent of the federal question and adequate to support the judgment.’” Id.
(quoting Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014)). The Illinois
Appellate Court’s refusal to consider the pro se brief in its ruling was a proper
enforcement of the Illinois rule against hybrid representation. Id.; see People v. Serio,
357 Ill.App.3d 806, 815 (2005) (“An accused has the right either to have counsel
represent him or to represent himself; but a defendant has no right both to selfrepresentation and the assistance of counsel”). The Seventh Circuit held that the state
appellate court’s enforcement of the hybrid representation bar in Clemons was “an
independent and adequate state ground of decision and precludes federal habeas
review” of the Strickland claim set forth in the petitioner’s unconsidered pro se
supplemental brief. Clemons, 845 F.3d at 820.
Here, Brown’s habeas petition is by-and-large procedurally indistinguishable
from that under review in Clemons. Facial differences do exist: Brown seeks review
of his direct appeal, Clemons involved a postconviction appeal; Brown’s pro se brief
was categorically excluded from consideration at the state level, the Clemons
petitioner’s was initially taken with the counseled brief before being excluded from
the merits order.
But these minor procedural peculiarities are irrelevant in light of the merits of
the Seventh Circuit’s decision. Brown set forth Claims 2 through 7 in his proposed
supplemental brief on state-level appeal, just as the Clemons petitioner set forth a
Strickland claim in his supplemental brief at the state level. The Illinois Appellate
Court declined to entertain Brown’s brief where his counsel had already filed an
opening brief, just as it declined to entertain the Clemons petitioner’s. Finally, as in
Clemons, Brown had the opportunity to “dispense with his counseled briefs and
represent himself to ensure that his preferred arguments were raised, or he could roll
the dice and hope that the court would make an exception to the rule against hybrid
representation and accept his pro se supplemental brief.” Clemons, 845 F.3d at 820.
He declined to do so, and under the newly minted Seventh Circuit Clemons decision,
is precluded from federal habeas review of the claims he raised in his unconsidered
pro se brief on direct appeal, Claims 2 through 7.
Our procedural decision barring review of Claims 2 through 7 turns on the
validity of Clemons, which was recently docketed for review by the Supreme Court.
To account for the possibility of Clemons’ reversal, we address the merits of Brown’s
habeas petition, as well.
This case arises under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), codified at 28 U.S.C. § 2254. Pursuant to § 2254(d), “federal
courts may not grant relief on any claim adjudicated on the merits by a state court
unless the adjudication ‘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 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.’” Blackmon v. Williams, 823 F.3d 1088, 1099 (7th Cir. 2016).
“Under the ‘contrary to’ clause, a federal court may issue a writ of habeas
corpus if the state court applied a rule that ‘contradicts the governing law’ set forth by
the Supreme Court or if the state court reached a different outcome based on facts
‘materially indistinguishable’ from those previously before the Supreme Court.”
Morgan v. Hardy, 662 F.3d 790, 797 (7th Cir. 2011) (quoting Williams v. Taylor, 529
U.S. 362, 405—06 (2000)).
Under the “unreasonable application provision,” “a
federal court may grant habeas relief if the state court correctly identified the
governing legal principle from the Supreme Court’s case law but unreasonably
applied it to the facts of the petitioner’s case,” Blackmon, 823 F.3d at 1099, or
“unreasonably refused to extend a rule to a context where it should have applied.”
Morgan, 662 F.3d at 797. “This is a high standard: to grant relief, the state court’s
decision must be objectively unreasonable, not merely incorrect.” Blackmon, 823
F.3d at 1099; see also Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) (quotation
marks omitted) (“The state court decision is reasonable if it is minimally consistent
with the facts and circumstances of the case”).
A. Claim 2 – Miranda Violations
Brown contends that statements he made while in custody were improperly
introduced at trial because they were acquired without Brown having first been read
his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966).
however, testified that he Mirandized Brown prior to questioning and collecting
Brown’s buccal sample. Brown’s Miranda form, signed by Brown, Grandon, and
another officer, was also introduced at trial. Moreover, Brown’s pretrial allegations of
Miranda violations were withdrawn by trial counsel, who declined to object to
Grandon’s testimony or the admission of Brown’s signed Miranda form. This is the
record before the Court. Brown’s bald claim in his petition that “he was never ask[ed]
to sign or force[d] to sign, it never happened!” falls short of the clear and convincing
evidence we require to rebut the presumption of correctness afforded the findings and
proceedings of the state courts. 28 U.S.C. § 2254(e)(1). The Illinois Appellate
Court’s factual recitation as well as the trial court transcripts indicate that Brown
waived his rights after being properly Mirandized; his claim insisting otherwise lacks
a factual and meritorious basis.
Additionally, even if Brown did not waive his Miranda rights, we agree with
Calloway that any error caused by the admission of Brown’s statements to Grandon
was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (holding that
habeas merits review abides by a deferential, “less onerous” harmless-error standard).
First, any challenge to the admission of the buccal sample amounts to a Fourth
Amendment search and seizure contest, not a Miranda issue. “[H]abeas review of
Fourth Amendment claims is reserved for instances where the state court made an
egregious error (e.g., failed to apply Supreme Court precedent directly on point after
the argument was clearly presented), thus effectively depriving the petitioner of the
ability to vindicate his federal rights in state court.” Turentine v. Miller, 80 F.3d 222,
226 (7th Cir. 1996). Nothing of the sort is even alleged to have occurred here, and
Brown’s inclusion of the buccal sample in his Miranda claim is improper.
Second, the evidence of Brown’s guilt, absent his statements to Grandon, was
overwhelming. Brown’s claimed inadmissible discussion with Grandon included his
denial of the assault, his account that his wife and daughter conspired to collect and
then plant his semen, and his statements about taking his children to work that day and
on previous days. Such admissions are of meager weight in the face of the “very
difficult, sad testimony” of a nine-year-old girl, recounting her sexual assault at the
hands of her biological grandfather. Indeed, L.W.’s testimony alone may have been
enough to render inconsequential the admission of Brown’s statements to the police.
That her account was corroborated by the testimony of her sister, her mother, her
grandmother, two forensic scientists, and physical evidence is more than enough to
satisfy the Court that Brown’s statements to the police did not have a “substantial and
injurious effect or influence” on the verdict.
Brecht, 507 U.S. at 637 (quoting
Kotteakos v. U.S., 328 U.S. 750, 776 (1946)).
B. Claim 3 – Evidence Insufficient to Support the Conviction
For sufficiency of the evidence claims, we ask “whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson
v. Virginia, 443 U.S. 307, 319 (1979).
Brown was convicted of predatory criminal sexual assault and aggravated
criminal sexual abuse. At the time of his conviction, predatory criminal sexual assault
required proof that “the accused was 17 years of age or over and commit[ed] an act of
sexual penetration with a victim who was under 13 years of age when the act was
committed.” 720 ILCS 5/12-14.1(a)(1) (West 2006). The term “sexual penetration”
was defined as “any contact, however slight, between the sex organs…of one person
and an object or sex organ…of another person, or any intrusion, however slight, of
any part of the body of one person…into the sex organ…of another…. Evidence of
semen is not required to prove sexual penetration.” 720 ILCS 5/12-12(f) (West 2006).
L.W.’s testimony about the contact between her and Brown’s “private parts”
was more than sufficient for a factfinder to find slight contact between sex organs.
Moreover, her credibility was thoroughly bolstered by corroborating testimony
Brown’s arguments that the State failed to prove that any
“penetration” occurred, that L.W.’s “hymen was intact,” and that there were “no
injuries whatsoever” are irrelevant to the crime for which he was convicted.
Brown’s conviction for aggravated criminal sexual abuse required proof that
the “accused committ[ed]…an act of sexual conduct with a victim who was under 18
years of age when the act was committed and the accused was a family member.” 720
ILCS 5/12-16(b) (West 2006). “Sexual conduct” was defined as:
[A]ny intentional or knowing touching or fondling by…the accused,
either directly or through clothing, or the sex organs…of the victim or
the accused, or any part of the body of a child under 13 years of age, or
any transfer or transmission of semen by the accused upon any part of
the clothed or unclothed body of the victim, for the purpose of sexual
gratification. 720 ILCS 5/12-12(e) (West 2006).
The facts recited infra establish that Brown was shown at trial to have
committed potentially numerous acts of sexual conduct, from the intentional touching
of bodies and sex organs to the transfer of semen. Brown’s claim that his then-wife
and daughter schemed to plant his semen on L.W. was presented at trial and evaluated
by the factfinder. It was certainly rational for the judge to have discounted Brown’s
conspiratorial allegation in the face of overwhelming evidence to the contrary. For
both Brown’s predatory criminal sexual assault and aggravated criminal sexual abuse
convictions, a rational factfinder could have found the essential elements of the crime
beyond a reasonable doubt.
C. Claim 4 – Double Jeopardy
Following his sexual assault of L.W. and based in part upon the assault,
Brown’s then-wife Michelle took out a civil order of protection against him. Brown
claims that, because the order of protection punished him for his acts with L.W., his
subsequent conviction for sexually abusing her violated the prohibition against double
While the Supreme Court has recognized that the double jeopardy prohibition
prevents states from “punishing twice, or attempting a second time to punish
criminally, for the same offense,” Witte v. United States, 515 U.S. 389, 396 (1995), no
controlling authority has addressed head-on the issue at bar: whether a civil order of
protection amounts to criminal punishment such that the subsequent prosecution of
the conduct that lead to the protection order triggers double jeopardy concerns.
However, precedent closely related to the issue – established almost a decade prior to
Brown’s trial – indicates that double jeopardy considerations do not contemplate civil
orders of protection.
In Kansas v. Hendricks, 521 U.S. 346, 353—54 (1997), the cross-petitioner
was nearing the end of a ten-year prison stint when the State of Kansas filed a petition
seeking his civil confinement as a sexually violent predator. After a jury concluded
that he was a sexually violent predator, the cross-petitioner was civilly committed to
the custody of the Secretary of Social and Rehabilitation Services, where he would
remain until he was deemed “safe to be at large.” Id. at 354—56. Commitment under
the relevant statute was “involuntary,” “potentially indefinite,” and subject to
“procedural safeguards traditionally found in criminal trials.” Id. at 351, 363, 364.
Nonetheless, the Court held that because the cross-petitioner was unable to provide
“‘the clearest proof’ that ‘the statutory scheme [was] so punitive either in purpose or
effect as to negate the State’s intention’ to deem it ‘civil,’” his civil confinement to the
custody of the State did not rise to the level of criminal punishment. Id. at 361
(quoting United States v. Ward, 448 U.S. 242, 248—49 (1980)).
That the Court in Hendricks declined to construe a statute so eerily reminiscent
of punitive criminal law as criminal-in-effect demonstrates the precariousness of
A civil order of protection neither imposes involuntary
confinement, as did the act under review in Hendricks, nor mimics the safeguards
associated with criminal proceedings. See 750 ILCS 60/214. But just like the civil
confinement in Hendricks, a protection order by its very nature is concerned not with
punishment. Rather, it manifests to protect other individuals from potential danger.
Therefore, the state court’s decision to reject Brown’s double jeopardy
concerns hewed to the tenets of favorable Supreme Court precedent, precedent that
remains in effect to render Brown’s claim wanting.
Because Brown’s order of
protection was “civil in nature” and “not tantamount to punishment,” his subsequent
prosecution and conviction did not violate the ban against double jeopardy.
Hendricks, 521 U.S. at 369.
D. Claim 5 – Ex Post Facto
It is not entirely clear what Brown specifically contends was a violation of the
Ex Post Facto clause. Brown’s petition alleges that he was prosecuted “under a
statutory provision which does not exist.” Calloway notes that it appears Brown is
contesting the validity or applicability of “the Illinois Compiled Statutes 1992 as
amended,” which might point to the source of Brown’s confusion, since the laws were
once codified under the name “Illinois Revised Statutes.” In any event, as the trial
court explained, none of Brown’s attacks on the laws or lack thereof are consistent
with the record before the Court, nor implicate the Ex Post Facto Clause in any
“The Constitution forbids the passage of ex post facto laws, a category that
includes ‘every law that changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed.’” Peugh v. U.S., 133 S.Ct. 2072,
2077—78 (1937) (quoting Calder v. Bull, 3 U.S. 386, 390 (1798)). Nothing in
Brown’s argument alleges the passage or enforcement of a subsequent law that
affected the laws under which he was prosecuted and convicted. The record cites to
then-applicable criminal laws in the Illinois Compiled Statutes that were charged,
litigated, and adjudicated at trial. Brown was sentenced in keeping with those statutes
and their corresponding sentencing provisions.
Neither the record nor Brown’s
Petition supports grounds for an ex post facto challenge.
E. Claim 6 – Failure to Provide Adequate Notice of the Charges in the
As Calloway hints at, the issues Brown raises concerning the notice he received
of his indictment are, at best, conspiratorial, if not outright incoherent. Brown claims
that the charging document was “misleading and misguiding” and caused Brown to be
sent to an address “that does not exist,” that the Illinois Compiled Statutes referenced
in the indictment had been “held unconstitutional,” and that the indictment violated
the one-act, one-crime rule.
Brown’s indictment plainly identifies his charges, with proper statutory
citations, for predatory criminal sexual assault and aggravated criminal sexual abuse.
The charges allege unambiguous facts to support the charges. Upon Brown’s request,
he was given by the State a bill of particulars that provided the six-hour time range in
which the crimes took place and the specific address of the crime scene. Brown
points to nothing in the record and our review reveals nothing to support his
allegations that the charging document was misleading or that it caused him to be sent
to a nonexistent address. The indictment was adequate to apprise Brown of “the
elements of the offense charged” and of “the charges against which he must defend,”
issued with sufficient particularity to enable Brown “to plead an acquittal or
conviction in bar of future prosecutions for the same offense.” Hamling v. U.S., 418
U.S. 87, 117 (1974).
Finally, having already dispensed with his unfounded attack on the Illinois
Compiled Statutes, we note that Brown has already litigated his one-act, one-crime
allegations with rather resounding success. The majority of his convictions were
stricken on direct appeal as violations of this very doctrine. For Brown to allege now
that the only two remaining convictions are now similarly violative, after the Illinois
Appellate Court’s prior finding in Brown’s favor on the issue following its own
thorough analysis of the law, is disingenuous and unfounded. The charging document
was sufficient to satisfy due process concerns, and Brown’s contentions to the
contrary are meritless.
F. Claim 7 – Ineffective Assistance of Trial Counsel
As stated supra, Brown’s ineffective assistance of trial counsel amounts to the
following: (a) counsel had a conflict of interest, (b) counsel failed to properly
investigate, (c) counsel’s advice to waive a jury trial and the right to testify was
deficient, and (d) counsel should have raised Claims 2, 4, 5, and 6 at trial. Strickland
v. Washington, 466 U.S. 668, 687 (1984) sets forth the governing defective assistance
of counsel standard:
First, the defendant must show that…counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a fair
a. Conflict of Interest
Normally, a conflict of interest claim arises “when one attorney represents two
or more defendants in the same criminal proceeding.” Stoia v. U.S., 22 F.3d 766, 770
(7th Cir. 1994). Brown does not allege that to be the case here, instead suggesting the
“divergent interests” of he and his trial counsel, which can ground a defective
assistance analysis under either the Strickland standard or that of Cuyler v. Sullivan,
446 U.S. 335 (1980). Id. “Cuyler requires a showing of both an actual conflict of
interest and an adverse effect on the lawyer’s performance.” Stoia, 22 F.3d at 770
(internal quotation marks omitted). “Not surprisingly…most defendants…proceed
under Cuyler, because it is significantly easier to demonstrate ‘adverse effect’ than to
show ‘prejudice.’” Id. at 771.
Here, Calloway argues that Brown declined in his Petition to specify the nature
of trial counsel’s alleged conflict of interest. However, a close reading of the Petition
reveals that Brown believes that his request at trial for representation from an office
other than that of the public defender “cause[d] more conflict between me and
counsel, before, during, and after trial.” However, other than to state in conclusory
fashion that this was a conflict that led to defective assistance, Brown makes no
attempt to explain how this demonstrated his and his counsel’s divergent interests or
conflict of interest.
Moreover, the record reveals nothing in the way of
contentiousness or neglectful lawyering on trial counsel’s behalf, nor that there was “a
reasonable likelihood that counsel’s performance somehow would have been
different,” absent Brown’s request for different representation. Id. The Court finds
no evidence demonstrating that trial counsel’s interests in the case in fact conflicted
with Brown’s. His defective assistance of counsel claim on this ground is devoid of
b. Failure to Properly Investigate & Trial Advice
Brown’s second and third allegations are only arguably discernible as separate
Moreover, Brown’s allegations that trial counsel failed to properly
investigate and deficiently advised Brown to waive his rights to testify and to a jury
trial are overwhelmingly conclusory in nature. Indeed, Brown frequently tethers his
failure to investigate language to his plethora of complaints about trial counsel’s
strategy in objecting at trial, counsel’s management and argument of motions before,
during, and after trial, and the advice to Brown to waive his jury and testimonial
rights. But “strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable precisely to the extent that
reasonably professional judgments support the limitations on investigation.”
Strickland, 466 U.S. at 690—91.
Brown does not address whether his trial counsel actually investigated the law
and facts surrounding his strategic decisions at trial. Nor does he allege the effect his
testimony would have had in the face of overwhelming evidence of his guilt. Brown
similarly declines to explain why the bench trial prejudiced him or why a jury trial
would have benefitted him. Instead, Brown rests on the conclusion that “all the
advice not to take the stand – switch to bench trial and the trial strategy proved to be
the incompetence of this trial counsel.” But Brown’s conviction by a reasonable
factfinder speaks only to Brown’s guilt; it does not automatically raise the post hoc
presumption that the strategic decisions his trial counsel made prior to that conviction
were defective. Brown martials the “failure to investigate” language not in service of
the substance of such a claim, but to lend a legal air to his complaints about the
machinations of trial procedure that preceded his confinement – complaints that are
insufficient to substantiate an ineffective assistance of counsel claim.
c. Failure to raise Claims 2, 4, 5, and 6
The Court has already concluded that Claims 2, 4, 5, and 6 are devoid of merit.
“Failure to raise a losing argument, whether at trial or on appeal, does not constitute
ineffective assistance of counsel.” Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).
G. Claim 8 – Ineffective Assistance of Appellate Counsel
Calloway notes that a broad construction of Claim 8, reading the Petition as a
whole, lends itself to an interpretation that Brown alleges ineffective assistance of
counsel for failing to raise Claims 2 through 7 on direct appeal. In the Court’s reading
of the Petition, no such broad construction is required, for that is precisely what
Brown is alleging. Indeed, Brown flatly equates appellate counsel with trial counsel,
asserting that each is responsible for identical Constitutional violations.
“[f]ailure to raise a losing argument, whether at trial or on appeal, does not constitute
ineffective assistance of counsel.” Stone, 86 F.3d at 717.
CERTIFICATE OF APPEALABILITY
A COA may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)2. Because Brown has not
shown that “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right” nor “that jurists would find it debatable
whether [the Court] was correct in its procedural ruling,” we decline to issue a COA.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For the aforementioned reasons, the Court denies Brown’s Petition and declines
to issue a COA.
Charles P. Kocoras
United States District Court Judge
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