Bowers v. Hutchinson et al

Filing 18

MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 6/14/2017. Mailed notice(cdh, )

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEFFREY BOWERS,
Petitioner,
v.
JEFF HUTCHINSON, Warden,
Menard Correctional Center,
Respondent.

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Case No. 16-cv-11300
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner Jeffrey Bowers’ pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 [1]. Petitioner argues that his direct appeal counsel
was ineffective for failing to argue that his trial counsel was ineffective for not bringing a post-trial
motion arguing that the state trial court coerced the jury by announcing that the jury would be
sequestered overnight. For the reasons set forth below, the Court denies Petitioner’s habeas
corpus petition [1] and declines to issue a certificate of appealability. Petitioner’s motion for
extension of time [13] is denied as moot.
I.

Background
A.

Criminal Trial

In May 2008, following a jury trial in Illinois state court, Petitioner was found guilty of two
counts of first-degree murder for personally discharging a firearm, two counts of attempted
first-degree murder, and two counts of aggravated battery with a firearm. His conviction was
based on an incident in which he and two accomplices fired an AK-47 into a crowd, fatally
wounding two people and seriously injuring two others. Petitioner was sentenced to life in prison

without parole.
At trial, the jury began deliberating around 1:00 p.m. At approximately 4:15 p.m., the
jury sent a note to the state trial court asking if it could have the transcript of a witness’s testimony;
the requested testimony was subsequently provided. At approximately 4:35 p.m., the jury sent a
note asking what it meant when the court said that the identification marks were stricken from
evidence that the jury received. The parties agreed on a response, and the court also asked the
jurors if they wanted to see the firearms evidence, which the jury declined.
Around 7 p.m., the court called the parties into the courtroom and stated:
Let the record reflect it’s approximately 7:00 o’clock. Jurors have been
deliberating about 6 and a half hours, and I don’t think they have had dinner; so I
have instructed the sheriff to order them to a hotel and we’re going to sequester
them over the evening, and we will have everybody back here at 10:00 o’clock.
People v. Bowers, 2016 WL 4761810, at *1 (Ill. App. Ct. Sept. 12, 2016). Defense counsel
objected to the sequestration, arguing that since it was Mother’s Day weekend, sequestration may
influence the juror’s desire to quickly finish deliberating. Defense counsel argued that the case
should be “held over until Monday.” The state trial court noted the objection for the record but
ordered that the jury be sequestered overnight and return to court the following morning.
Approximately ten minutes later, the state trial court announced that the jurors had reached a
verdict. The court also stated that the jurors had signed one wrong verdict form. Defense
counsel argued that the jurors were hastened to come up with a verdict to avoid sequestration.
The state trial court rejected this argument, stating that there was “absolutely no evidence of that.”
Id. at *1–*2. The jury found Petitioner guilty of two counts of first-degree murder, two counts of
attempted first-degree murder, and two counts of aggravated battery with a firearm.
B.

Direct Appeal

Petitioner appealed his conviction, arguing, inter alia, that the trial court coerced the jury
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by announcing that the jury would be sequestered over a holiday weekend. People v. Bowers,
2011 WL 9557996, at *11 (Ill. App. Ct. Jan. 25, 2011). The Illinois Appellate Court concluded
that this argument had been forfeited because although trial counsel objected to the sequestration
order at trial, he did not raise the issue in a post-trial motion and thus did not preserve the issue for
review. Id. at *12. The Illinois Appellate Court further concluded that since direct appeal
counsel made no argument for plain error review, plain error review was also forfeited. Id.
Accordingly, the Illinois Appellate Court affirmed Petitioner’s convictions. The Illinois Supreme
Court denied leave to appeal. People v. Bowers, 949 N.E.2d 1099 (Ill. 2011) (Table).
C.

State Court Collateral Proceedings

In March 2012, Petitioner filed in state court a pro se post-conviction petition arguing that
his direct appeal counsel was ineffective “for failing to brief and argue trial counsel’s
ineffectiveness for not raising in his post-trial motion that the verdict was hastened by sequester”
and “for failing to argue for plain error review of an unpreserved issue.” People v. Bowers, 2016
WL 4761810, at *3–*4 (Ill. App. Ct. Sept. 12, 2016). The court appointed counsel. However,
post-conviction counsel later filed a motion to withdraw, stating that after consulting with
Petitioner and examining the record, he found no reasonably arguable post-conviction issues.
The court granted post-conviction counsel leave to withdraw. Subsequently, the State filed a
motion to dismiss Petitioner’s state court post-conviction petition arguing that direct appeal
counsel was not ineffective for failing to argue for plain error review, Petitioner had not shown that
the judge’s statement in any way changed or coerced the verdicts, and the length of the
deliberations—about six and a half hours—did not indicate that the jury was deadlocked or
otherwise unable to unanimously agree. Id. at *6. After a hearing on the State’s motion to
dismiss, the state trial court dismissed the petition, stating that Petitioner had not made a
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substantial showing of a violation of his constitutional rights. The court explained that the
statement about sequestration informed the jury that it did not need to reach a decision that night.
Further, the court noted that there was no evidence in the record or from Petitioner that the court’s
sequestration announcement actually interfered with the jury’s deliberations or that the jury was
deadlocked at the time of the announcement. Finally, the court held that the sequestration issue
could not have survived plain error review where there was no clear and obvious error. Id.
Petitioner appealed, arguing that he made a substantial showing of a constitutional claim
that his trial counsel and direct appeal counsel provided ineffective assistance by failing to
preserve the coerced verdict issue. The Illinois Appellate Court rejected this argument on the
merits, concluding that based on the totality of the circumstances, the trial court’s comments about
sequestration were “entirely proper” and “not coercive.” Id., at *10. Illinois Supreme Court
denied leave to appeal. People v. Bowers, 65 N.E.3d 843 (Ill. 2016) (Table).
In Petitioner’s current pro se petition [1] for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254, he again argues that his direct appeal counsel was ineffective for failing to argue that the
unpreserved coerced verdict issue should be reviewed for plain error. [1, at 9.]
II.

Legal Standard
A.

Habeas Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas relief cannot be
granted unless the state court’s decision was contrary to, or involved an unreasonable application
of, federal law as determined by the Supreme Court, or 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)(1),
(2); see also Williams v. Taylor, 529 U.S. 362, 402–03 (2000); Warren v. Baenen, 712 F.3d 1090,
1096 (7th Cir. 2013). The Seventh Circuit has stressed that habeas relief is “an extraordinary
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remedy because it asks the district court essentially to reopen the criminal process to a person who
already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521
(7th Cir. 2007). Habeas relief under § 2254 is a “‘guard against extreme malfunctions in the state
criminal justice systems,’ not a substitute for ordinary error correction through appeal.”
Harrington v. Richter, 562 U.S. 86, 102–103 (2011) (quoting Jackson v. Virginia, 443 U.S. 307,
332 n.2 (1979) (Stevens, J., concurring in judgment)). To obtain habeas relief in federal court, “a
state petitioner must show that the state court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id. at 103. Further, the state
court’s factual findings are presumed correct, and the Petitioner bears the burden of rebutting the
state court’s factual findings by clear and convincing evidence.

§ 2254(e)(1); Toliver v.

McCaughtry, 539 F.3d 766, 772 (7th Cir. 2008).
B.

Ineffective Assistance of Counsel Standard

In order to prevail on an ineffective assistance of counsel claim, Petitioner must show that
his counsel’s performance was deficient and that he was prejudiced by the deficiencies in
counsel’s performances. Strickland v. Washington, 466 U.S. 688, 687 (1984). Both components
of the test must be satisfied or the claim will be denied; “the lack of either is fatal.” Eddmonds v.
Peters, 93 F.3d 1307, 1313 (7th Cir. 1996).
Under the first prong of the Strickland test, Petitioner must establish that “counsel's
representation fell below an objective standard of reasonableness” when measured against
“prevailing professional norms.” Id. at 688; see also Gaylord v. United States, 829 F.3d 500, 506
(7th Cir. 2016).

In evaluating counsel’s performance, a court must consider “all of the

circumstances of [the] case” in determining whether counsel’s acts or omissions “were made
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outside the wide range of professionally competent assistance.” Menzer v. United States, 200
F.3d 1000, 1003 (7th Cir. 2000) (citing United States v. Trevino, 60 F.3d 333, 338 (7th Cir. 1995)).
However, review of counsel’s performance is “highly deferential,” and a court’s analysis must
begin with a “strong presumption” that the defendant’s attorney provided adequate representation
to his client. United States v. Meyer, 234 F.3d 319, 324–25 (7th Cir. 2000). Petitioner must show
that his counsel made “errors so serious that counsel was not functioning as ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Further, “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 reasonable professional judgments support the limitations
on investigation.” Strickland, 466 U.S. at 690–91.
If a court finds an attorney’s representation to be unconstitutionally deficient, it must then
proceed to the second prong of the Strickland test. Under the prejudice prong, a petitioner must
show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different.” Allen v. Chandler, 555 F.3d 596, 600 (7th Cir.
2009) (quoting Strickland, 466 U.S. at 690) (internal quotation marks omitted). “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466
U.S. at 694; see also Rastafari v. Anderson, 278 F.3d 673, 688 (7th Cir. 2002). “It is not enough
for the defendant to show that the errors had some conceivable effect on the outcome of the
proceeding.” Strickland, 466 U.S. at 693. Instead, “[c]ounsel’s errors must have been ‘so
serious as to deprive the defendant of a fair trial.’” Carter v. Butts, 760 F.3d 631, 635 (7th Cir.
2014) (quoting Strickland, 466 U.S. at 693). “This does not require a showing that counsel’s
actions ‘more likely than not altered the outcome,’ but the difference between Strickland’s
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prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest
case.’” Harrington, 562 U.S. at 111–12 (citations omitted).
Finally, on habeas review, a petitioner must establish that the state court’s application of
Strickland was “both incorrect and unreasonable—that is, ‘lying well outside the boundaries of
permissible differences of opinion.’” Toliver, 539 F.3d at 774 (quoting Raygoza v. Hulick, 474
F.3d 958, 963 (7th Cir. 2007)). The Court must apply “a ‘doubly deferential’ standard of review
that gives both the state court and the defense attorney the benefit of the doubt.” Burt v. Titlow,
134 S. Ct. 10, 13 (2013) (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011)); see also
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (“The question is not whether a federal court
believes the state court’s determination under the Strickland standard was incorrect but whether
that determination was unreasonable—a substantially higher threshold.” (citation and internal
quotation marks omitted)).
III.

Analysis
As an initial matter, the relevant decision for purposes of our analysis is the decision of the

last state court to rule on the merits of Petitioner’s claim—in this case, the September 12, 2016
decision of the Illinois Appellate Court affirming the state trial court’s denial of post-conviction
relief. See Stern v. Meisner, 812 F.3d 606, 609 (7th Cir. 2016). The Illinois Appellate Court
correctly identified Strickland as the controlling standard. People v. Bowers, 2016 WL 4761810,
at *10 (Ill. App. Ct. Sept. 12, 2016) (“To establish that appellate counsel was ineffective, a
defendant must satisfy the standard articulated in Strickland v. Washington, 466 U.S. 668, 685–87
(1984)).

The analysis of the Illinois Appellate Court focused on the prejudice prong of

Strickland. Bowers, 2016 WL 4761810, at *10. (“[W]e may dispose of an ineffective assistance
claim based on a lack of prejudice alone.”).
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First, the Illinois Appellate Court noted that “[u]nless the underlying issue is meritorious, a
defendant will not be said to have suffered prejudice from appellate counsel’s failure to raise an
issue on appeal.” Bowers, 2016 WL 4768610, at *10. The court then analyzed whether the trial
court had erred in commenting to the jury about sequestration. The court explained that despite
the verdict being returned approximately 10 minutes after the sequestration order, the trial court’s
comments about sequestration were “simple, neutral, and not coercive” when considering the
totality of the circumstances. Id. The appellate court reasoned that there was no evidence in the
record suggesting that the trial court attempted to rush the deliberations, and no mention was made
to the jurors that it was Mother’s Day weekend. Id. The court further noted that after a long
period of deliberation—here, more than six hours—being advised of potential sequestration can
actually remove pressure to reach an immediate decision.

Id.

Finally, the court rejected

Petitioner’s argument that coercion is evidenced by the one incorrectly-signed verdict form,
concluding that the argument “amounts to speculation, particularly in light of the court’s neutral
statement about sequestration.” Id.
The Illinois Appellate Court therefore concluded that the trial court’s comments about
sequestration were proper, the verdict was not coerced, and defendant was not prejudiced by (1)
his trial counsel’s failure to raise the issue in a post-trial motion or (2) his appellate counsel’s
failure to raise plain error or trial counsel’s ineffectiveness. Bowers, 2016 WL 4768610, at *10.
Since Petitioner had not met the prejudice prong of the Strickland test, he was not entitled to
post-conviction relief. Id.
This Court concludes that the Illinois Appellate Court did not unreasonably apply
Strickland. As an initial matter, the Illinois Appellate Court’s decision to focus on the prejudice
prong of Strickland was not problematic. “A court can resolve an ineffective assistance claim by
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deciding either Strickland prong against the defendant, and the court need not consider
performance before considering prejudice.” Abreu v. United States, 925 F. Supp. 1404, 1410
(N.D. Ind. 1996) (citing Barker v. United States, 7 F.3d 629, 633 (7th Cir. 1993)). Turning to the
merits of the Illinois Appellate Court’s decision, the court’s determination that the state trial
court’s comments about sequestration were proper (and thus Petitioner suffered no prejudice) was
not contrary to, or an unreasonable application, of Strickland.
This court looks to the totality of the circumstances to determine whether the state trial
court’s comments about sequestration were coercive. Kelley v. Farley, 905 F. Supp. 571, 576
(N.D. Ind. 1995), aff’d 96 F.3d 1450 (7th Cir. 1996). Here, the jury deliberated for more than six
hours before returning a guilty verdict and appears to have thoroughly considered the evidence.
After about three hours of deliberating, the jury sent a note to the court asking if it could have the
transcript of a witness’s testimony, which was subsequently provided. About twenty minutes
later, the jury sent a note asking what it meant when the court said that the identification marks
were stricken from the evidence that the jury received. The parties agreed on a response, and the
court also asked the jurors if they wanted to see the firearms evidence, which the jury declined.
These two notes from the jury reasonably show that the jury considered the evidence and do not
indicate that the jury was deadlocked before the court’s sequestration announcement. See People
v. McCoy, 939 N.E.2d 950, 957 (Ill. App. Ct. 2010) (holding that the court’s sequestration
announcement did not coerce the verdict, and noting that the jurors “appeared to thoroughly
consider the evidence and the charges against defendant” where the jury had sent two notes to the
court, one asking for a legal definition and the other for transcripts of the testimony of three
witnesses). Thus, when placed in context, the state trial court’s comments about sequestration
were not coercive.
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In considering the totality of the circumstances, the Court also finds persuasive an
examination of what the state trial court did not say to the jury. For example, Petitioner does not
allege that the court inquired into the numerical division of the jury, admonished the jury that it
must reach a verdict, suggested that any jurors should reconsider their positions, or made any
reference to the resources expended in the trial. Instead, the court simply instructed the sheriff to
inform the jurors that as the hour was growing late, they would be provided accommodations for
the night so that they could continue deliberations the next day. Although “[i]nquiries into the
numerical division of a jury, statements to a deliberating jury that they must reach a verdict,
allusions to the undesirability of a retrial, and setting a time limit upon further deliberations have
been held to be coercive,” United States v. Sielaff, 552 F.2d 588, 590 (7th Cir. 1977), no such
comments were made here. See Kelley, 905 F. Supp. at 574 (noting that what the state trial court
judge did not say was persuasive in determining whether judge’s comments about sequestration
were coercive). The Court therefore concludes that the Illinois Appellate Court reasonably
determined that the state trial court’s comments were “simple, neutral, and not coercive.”
Moreover, the Illinois Appellate Court reasonably emphasized the fact that the jury had not
recently received new information shortly before it returned the guilty verdict.

The court

distinguished People v. Friedman, 494 N.E.2d 760, 765 (Ill. App. Ct. 1986), in which the
Appellate Court concluded that the trial court’s comments likely hastened the verdict.

In

Friedman, the trial court answered the jury’s question by defining a legal concept and then told the
jury that it would be sequestered overnight in about 45 minutes, and the jury returned guilty
verdicts approximately five minutes later.

494 N.E.2d 760, 765.

As the Appellate Court

explained, the jury in Friedman could not have given due consideration to the newly-defined legal
concept in five minute. In contrast, however, the jury in the case at bar had not recently received
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new information before returning the guilty verdict. Bowers, 2016 WL 4761810, at *11.
In sum, the Illinois Appellate Court’s determination that the state trial court’s comments
about sequestration were proper (and thus Petitioner suffered no prejudice) was not contrary to, or
an unreasonable application, of Strickland. See Gail v. Dingle, 2010 WL 681302, at *13 (D.
Minn. Feb. 23, 2010) (denying habeas relief and rejecting Petitioner’s argument that the trial court
had erred in ordering the jury sequestered over Thanksgiving weekend and explaining that
“sequestration of a jury does not, in of itself, deprive a defendant of the right to an impartial jury”);
Kelley, 905 F. Supp. at 574 (denying habeas relief where after jury deliberated for nearly 10 hours,
state court judge raised the possibility of going to a hotel within an hour if no verdict was reached,
and jury returned a guilty verdict approximately one hour later, and explaining that since there was
no error in the judge’s comments, counsel was not ineffective for failing to object to them).
Finally, in addition to being a reasonable application of Strickland, the Illinois Appellate
Court’s decision was not contrary to, or an unreasonable application of any other clearly
established Supreme Court precedent. “[T]he Supreme Court has never held that notifying the
jury of the possibility of sequestration violates the Constitution, nor has it established a governing
rule for such situations.” McCoy v. Korte, 2016 WL 4945072, at *6 (N.D. Ill. Sept. 16, 2016)
(emphasis omitted). This is fatal to Petitioner’s habeas claim, as “there can be no Supreme Court
precedent to be contradicted or unreasonably applied, and therefore no habeas relief, when there is
no Supreme Court precedent on point.” Id. (quoting Virsnieks v. Smith, 521 F.3d 707, 716 (7th
Cir. 2008)). To be sure, the “lack of a Supreme Court decision on nearly identical facts does not
by itself mean that there is no clearly established federal law, since ‘a general standard’ from [the
Supreme Court’s] cases can apply such law.” Gilbert v. McCulloch, 776 F.3d 487, 481–91 (7th
Cir. 2015). However, “a federal habeas court may overturn a state court’s application of federal
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law only if it is so erroneous that there is no possibility fairminded jurists could disagree that the
state court’s decision conflicts with th[e] [Supreme] Court’s precedents.” McCoy v. Korte, 2016
WL 4945072, at *6 (quoting Nevada v. Jackson, 113 S. Ct. 1990, 1992 (2013)).
Petitioner’s claim would fail even if this Court were to more broadly consider the Supreme
Court’s precedent on Allen charges—that is, charges that specifically urge the minority jurors to
give weight to the majority’s views. Allen v. United States, 164 U.S. 492, 501–502 (1896). As
Justice Alito noted in his dissent from the denial of certiorari in a habeas case, the Supreme Court’s
precedents on Allen charges is undeveloped:
The clearly established law relevant to this case is sparse. Just one of this Court's
decisions, Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L.Ed.2d 568
(1988), has addressed the constitutional rule against coercive jury instructions.
And Lowenfield held only that, on the totality of the circumstances present there, no
unconstitutional coercion resulted. Id., at 241, 108 S. Ct. 546. * * * As a result, the
clearly established law in this area provides very little specific guidance. About
all that can be said is that coercive instructions are unconstitutional, coerciveness
must be judged on the totality of the circumstances, and the facts of Lowenfield
(polling a deadlocked jury and reading a slightly modified Allen charge) were not
unconstitutionally coercive. See 484 U.S., at 237–241, 108 S. Ct. 546.
Wong v. Smith, 562 U.S. 1021, 131 (2010) (Alito, J., dissenting). Given this backdrop, the Court
cannot conclude that the Illinois Appellate Court’s decision was contrary to or an unreasonable
application of clearly established Supreme Court precedent. See McCoy v. Korte, 2016 WL
4945072, at *6.
Nor was the Illinois Appellate Court’s fact-finding unreasonable under § 2254(d)(2). See
id., at *7. “A state court’s factual finding is unreasonable only if it ignores the clear and
convincing weight of the evidence.” Jean-Paul v. Douma, 809 F.3d 354, 360 (7th Cir. 2015).
Here, the Illinois Appellate Court’s opinion produces verbatim the exchange between the state trial
court and the parties discussing sequestration, which matches the transcript included with
Petitioner’s reply brief. See Bowers, 2016 WL 4761810, at *1; [16, at 14.] Although the
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sheriff’s exact words to the jury relaying the court’s instructions are not in the record, Petitioner
does not allege that the sheriff misconstrued the court’s sequestration instructions in any way.
Thus, the facts are not in dispute.
In sum, the Court concludes that the Illinois Appellate Court’s determination that
Petitioner’s direct appeal counsel was not ineffective was reasonable and not contrary to or an
unreasonable application of Strickland or any other clearly established Supreme Court precedent,
and habeas relief must therefore be denied.
IV.

Certificate of Appealability
Per Rule 11(a) of the Rules Governing § 2254 Proceedings, the “district court must issue or

deny a certificate of appealability when it enters a final order adverse to the applicant.”
Accordingly, the Court must determine whether to grant Petitioner a certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2). A habeas petitioner does not have an absolute right to appeal
a district court’s denial of his habeas petition. Instead, he must first request a certificate of
appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335 (2003); Sandoval v. United States,
574 F.3d 847, 852 (7th Cir. 2009). A habeas petitioner is entitled to a certificate of appealability
only if he can make a substantial showing of the denial of a constitutional right. Miller-El, 537
U.S. at 336. Under this standard, Petitioner must demonstrate that reasonable jurists would find
the Court’s assessment of his § 2254 claims debatable or wrong. Id.; Slack v. McDaniel, 529 U.S.
473, 484 (2000). In view of the analysis set forth above, the Court concludes that Petitioner has
not made a substantial showing that reasonable jurists would differ regarding the merits of his
claim. Thus, the Court declines to issue a certificate of appealability.
V.

Conclusion
For these reasons, the Court denies Petitioner’s habeas corpus petition [1]. The Court
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declines to certify any issues for appeal under 28 U.S.C. § 2253(c)(2) and directs the Clerk to enter
judgment in favor of Respondent. Petitioner’s motion for extension of time [13] is denied as
moot.

Dated: June 14, 2017
_________________________________
Robert M. Dow, Jr.
United States District Judge

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