Sanchez v. Lashbrook
MEMORANDUM Opinion and Order written by the Honorable Matthew F. Kennelly on 2/8/2018: For the foregoing reasons, the Court directs the Clerk to enter judgment in favor of the respondent on all of Sanchez's claims [dkt. no. 1]. The Court decli nes to issue a certificate of appealability, as reasonable jurists would not find the Court's procedural default rulings or its merits ruling on count one debatable. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). Mailed notice.(pjg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
JACQUELINE LASHBROOK, Warden,
Case No. 17 C 3570
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY, District Judge:
Pedro Sanchez, who was convicted of murder in Illinois state court, has filed a
petition for a writ of habeas corpus under 28 U.S.C. § 2254. Sanchez alleges his trial
and appellate counsel were ineffective and that his due process rights were violated.
In 2009, Robert Gooch and Elissa Hinton were dating. The couple shared an
apartment in Joliet, Illinois. On May 21, 2009, they both went to sleep around 11 p.m.
but awoke to the sound of the apartment buzzer. Gooch got out of bed and walked to
the door. From bed, Hinton heard the murmur of voices and recognized the voice of
Pedro Sanchez. Sanchez and Hinton knew each other, as Hinton had sexual relations
with him several times while she was dating Gooch. Sanchez wanted to begin dating
Hinton, but she had rebuffed his past advances. As Sanchez and Gooch spoke, Hinton
testified she heard "mumbling" "about a girl." Ex. M at 19 (Hinton testimony). She then
heard a gunshot. She got out of bed and found Gooch on the floor, bleeding from a
gunshot wound to the head. She did not see the shooter. Gooch died from his wounds.
Earlier in the day, Sanchez had met with several friends: Jesus Zambrano,
Michael Ortiz, and Christian Lopez. They met at the home of LaToya Ortiz. (To avoid
confusion, the Court uses LaToya Ortiz's full name, but uses "Ortiz" to refer to Michael
Ortiz.) They spent the evening drinking alcohol and smoking marijuana. Lopez testified
that he had "a lot" to drink. Ex. M at 109 (Lopez testimony).
Ortiz testified that, while partying at LaToya Ortiz's house, he overheard Sanchez
talking on the telephone "[l]ike there was an argument" between "him and I guess his
ex-girlfriend[.]" Ex. M at 217 (Ortiz testimony). Ortiz testified he overheard Sanchez
asking the other party on the phone why she had left. Ex. M at 218. The defense called
Hinton, the victim's partner, to testify. She denied speaking with Sanchez on the day of
LaToya Ortiz testified that they left her home between midnight and 1 a.m.
Zambrano, Sanchez, Lopez, and Ortiz all left in the same car: Zambrano drove,
Sanchez was in the front passenger seat, and Lopez and Ortiz were in the back seats.
They first drove to a McDonald's and ordered food at the drive-through window. The
prosecution later introduced video surveillance of the vehicle proceeding through the
Lopez testified that they left the McDonald's but did not drive towards his house.
Rather, they went to another apartment—the apartment at which Hinton and Gooch
lived. Sanchez got out of the car first and walked to the door of the apartment.
Zambrano got out next, walked to the front of the car, and removed a gun from under
the hood of the car. Zambrano told Lopez to get out as well. Meanwhile, Ortiz had
fallen asleep in the back. A video recording taken at the apartment captures the car
pulling up, the three men exiting the car, and Zambrano removing an item from under
the hood of the car.
Lopez testified that, as he, Sanchez, and Zambrano walked to the apartment,
"[t]hey tried to hand me the handgun and I just said no." Ex. M at 114. Someone
buzzed them in. As they walked upstairs, either Sanchez or Zambrano told Lopez to
wait on the second floor while they walked up to the third floor. Hinton and Gooch lived
on the third floor. Lopez waited on the second floor for five to ten minutes and then
heard a gunshot.
After hearing the gunshot, Lopez saw Zambrano running down the stairs, so he
began to run as well. The two of them ran back to the car together, and Sanchez
followed behind. Lopez testified that, as they drove away, Sanchez repeatedly told
Zambrano "I love you, Jesus. I love you." Ex. M at 116. Lopez stayed with the group
until the morning and then walked home. Later that day, he voluntarily went to the Joliet
Police Department and described the events of the previous night.
At Sanchez's trial, the prosecution introduced both Lopez and Ortiz's testimony.
Ortiz received use immunity in exchange for his testimony. During trial, the prosecution
pursued an accountability theory of liability, which meant that both Sanchez and
Zambrano could be held liable for the murder without evidence showing which one
specifically shot the victim. Sanchez was convicted by a jury, and a judge sentenced
him to 61 years in prison.
On direct appeal, Sanchez argued a single issue: he had received ineffective
assistance of counsel, because his attorney had failed to seek an accomplice-witness
instruction. An accomplice-witness instruction warns jurors to view the testimony of an
accomplice with "suspicion." Illinois Pattern Jury Instructions—Criminal, No. 3.17 (4th
ed. 2000). The Illinois Appellate Court, applying Strickland v. Washington, 466 U.S. 668
(1984), held that the attorney's failure to obtain the instruction (1) was not objectively
deficient and (2) did not prejudice Sanchez. People v. Sanchez, 2013 IL App (3d)
120046-U ¶¶ 17-18. Sanchez filed a petition for leave to appeal (PLA), Ex. E, which the
Illinois Supreme Court denied. Ex. F at 1 (Order denying PLA).
Sanchez filed a pro se post-conviction petition, which the trial court dismissed.
Respondent has not provided this Court with either the petition or the trial court's order.
Rather, it has provided only the briefs on appeal from the trial court's dismissal of the
post-conviction petition. The appeal brief, however, describes the claims made in the
post-conviction petition. See Ex. I at 7 (post-conviction brief). First, Sanchez
contended that the trial court had erred in failing to appoint counsel to represent him
regarding his claim that trial counsel had been ineffective. Second, he contended that
trial counsel was ineffective for failing to question Ortiz about dismissal of a firearms
charge against him before he testified at trial. Third, Sanchez contended that the
prosecutor had violated his right to a fair trial by making an improper closing argument.
Sanchez also contended that appellate counsel was ineffective for failing to assert these
points on direct appeal. The trial court dismissed the petition without explanation. On
appeal, Sanchez, who at this point was again represented by counsel, made four
arguments: (1) appellate counsel rendered ineffective assistance in failing to challenge
the prosecution's closing argument; (2) trial counsel was ineffective in failing to crossexamine Ortiz about the dismissed charge, and (3) appellate counsel was ineffective in
failing to raise trial counsel's ineffective assistance on appeal; and (4) appellate counsel
was ineffective in failing to challenge the prosecution's participation in the hearing held
by the trial court on Sanchez's contention that his trial counsel had rendered ineffective
assistance. The Illinois Appellate Court overruled all of these arguments. People v.
Sanchez, 2017 IL App (3d) 140967-U. Sanchez did not file a PLA.
To prevail on a petition under 28 U.S.C. § 2254, a petitioner must show (1) his or
her incarceration violates the laws, treaties, or the Constitution of the United States, 28
U.S.C. § 2254(a), and (2) that he or she "has exhausted the remedies available in the
courts of the State." Id. § 2254(b)(1)(A). Applying a liberal reading of Sanchez's pro se
petition, Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015), the Court has identified seven
claims in Sanchez's section 2254 petition. 1 Of these, claims two through seven are
defaulted: two were never presented to the state courts, and four additional claims
never underwent a full round of state review, as Sanchez never filed a PLA in his postconviction appeal. Thus the Court only addresses Sanchez's first claim on the merits.
Claims two through seven
The Court first reviews the six claims that Sanchez defaulted, either by never
presenting the claims to a state court (claims six and seven) or by never completing
"one complete round" of state review (claims two through five).
Claims six and seven
Sanchez asserts two claims that he never presented to the state courts on direct
The pages in Sanchez's habeas petition are out of order. Claims one through four are
described on pages seven and eight of the habeas corpus petition; claims five through
seven are on pages four and five.
or collateral review. In claim six, Sanchez contends his trial counsel provided
ineffective assistance by failing to retain a mechanic that could attest to the mechanical
problems with the hood of Sanchez's car. Habeas Pet. at 4. Sanchez also alleges his
appellate counsel was ineffective for not raising on appeal this alleged failure to trial
counsel. Id. In claim seven, Sanchez argues his trial counsel provided ineffective
assistance when he failed to impeach an officer that testified at his trial and his
appellate counsel provided ineffective assistance by not raising this failure on appeal.
Id. at 5.
Sanchez did not assert any of these claims on either direct appeal or in the briefs
he filed on post-conviction appeal. For this reason, the claims are procedurally
defaulted. A petitioner has procedurally defaulted his federal claim if he fails to fairly
present it through "at least one complete round of state-court review, whether on direct
appeal of his conviction or in post-conviction proceedings." Clemons v. Pfister, 845
F.3d 816, 819 (7th Cir. 2017).
Claims two through five
Next, Sanchez asserts four claims that he raised in his state post-conviction
appeal. In claim two, Sanchez alleges the trial court violated his rights by declining to
appoint new counsel to assist him in pursuing his ineffective assistance of counsel
claim. Habeas Pet. at 5. In claim three, Sanchez alleges he received ineffective
assistance of appellate counsel, as his appellate attorney did not challenge the
prosecution's adversarial participation during a so-called Krankel hearing; he also
appears to assert a claim based on the conduct of that hearing in the trial court. Id. at 8.
See People v. Krankel, 102 Ill. 2d 181, 189, 464 N.E.2d 1045, 1049 (1984) (requiring a
post-trial hearing in which the court appoints a pro se defendant a new attorney to argue
his original counsel was ineffective). In claim four, Sanchez contends his trial counsel
rendered ineffective assistance by failing to cross-examine Ortiz about a gun charge
that Sanchez contends was dismissed in exchange for Ortiz's testimony, and that his
appellate counsel rendered ineffective assistance for failing to raise this issue on
appeal. Id at 8. In claim five, Sanchez alleges he received ineffective assistance of
counsel when trial counsel failed to object to the prosecution's purported misconduct
during closing argument, and ineffective assistance of appellate counsel when counsel
failed to raise this alleged error on appeal. Id. at 4. Sanchez also contends his right to
a fair trial was violated by the alleged misconduct during the prosecution's closing. Id.
Although Sanchez presented these claims to the state appellate court on postconviction appeal, he never filed a PLA to bring the claims before the Illinois Supreme
Court. "To fairly present his federal claim, a petitioner must assert that claim through at
least one complete round of state-court review . . . [which] means that the petitioner
must raise the issue at each and every level in the state court system, including levels
at which review is discretionary rather than mandatory." Richardson v. Lemke, 745 F.3d
258, 268 (7th Cir. 2014). Sanchez has procedurally defaulted these claims.
Sanchez offers no excuse for his default of claims two through seven.
Presumably he could argue that appellate counsel's ineffective assistance excuses his
default of the claims regarding the conduct of proceedings before the trial court and
ineffective assistance of trial counsel. But before a claim of ineffective assistance may
excuse a procedural default, the underlying ineffectiveness claim must "be presented to
the state courts as an independent claim before it may be used to establish cause for a
procedural default." Murray v. Carrier, 477 U.S. 478, 488-89 (1986). Sanchez did
assert a number of claims of ineffective assistance of appellate counsel in his postconviction appeal, but he did not file a PLA after the state appellate court ruled against
him. Thus he did not present the claim of ineffective assistance of appellate counsel
through a complete round of state court proceedings. A party may not establish that
ineffective assistance of appellate counsel caused a procedural default if that issue was
not raised through "one complete round" of state court proceedings. Martinez v. Mote,
No. 03 C 4251, 2003 WL 22533563, at *1 (N.D. Ill. Nov. 7, 2003) (citing O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999)). This bars him from using ineffective assistance of
appellate counsel as an excuse for the default.
For these reasons, the Court overrules claims two through seven.
In claim one, Sanchez contends that the state court unreasonably applied
Strickland by rejecting his claim that he received ineffective assistance of counsel when
his attorney did not request an accomplice-witness instruction. The accomplice-witness
When a witness says he was involved in the commission of a crime with the
defendant, the testimony of that witness is subject to suspicion and should
be considered by you with caution. It should be carefully examined in light
of the other evidence in the case.
Illinois Pattern Jury Instructions—Criminal, No. 3.17 (4th ed. 2000).
To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate (1) objectively deficient counsel and (2) actual prejudice. Strickland v.
Washington, 466 U.S. 668, 687-96 (1984). For a habeas petitioner, "[e]stablishing that
a state court's application of Strickland was unreasonable under § 2254(d) is all the
more difficult. The standards created by Strickland and § 2254(d) are both 'highly
deferential' and when the two apply in tandem, review is 'doubly' so." Harrington v.
Richter, 562 U.S. 86, 105 (2011) (citations omitted).
A defendant can show prejudice only if "there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome." Strickland, 466 U.S. at 694. "[T]here is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one." Id. at 697. Thus the Court does not
address the first element of Strickland, as it concludes that the Illinois Appellate Court
reasonably applied the second element of Strickland when it determined that Sanchez
did not suffer any prejudice from his attorney's failure to obtain the accomplice-witness
To determine whether the state court unreasonably applied Strickland, the Court
must consider what arguments supported, or could have supported, the state court's
decision. Richter, 562 U.S. at 102. First, Sanchez's trial attorney impeached Lopez and
Ortiz's credibility through other means. Second, even in the absence of Lopez and
Ortiz's testimony, there was adequate evidence to support Sanchez's conviction. A
third argument, not discussed by the appellate court, is that the jury was separately
instructed to weigh the credibility of the witnesses. These points establish that the state
appellate court reasonably concluded Sanchez did not experience prejudice from his
attorney's purported error.
First, Sanchez's attorney had already impeached the credibility of both Lopez
and Ortiz. Sanchez's attorney introduced evidence showing Lopez was both drunk and
high at the time of the murder. Sanchez's attorney also presented evidence of
inconsistent statements Lopez made to the Joliet Police Department when he first
reported the murder. The attorney also introduced evidence of Lopez's prior felony
conviction for aggravated driving under the influence. Ortiz was similarly impeached:
Sanchez's attorney showed Ortiz was intoxicated at the time of the murder and that he
had received use immunity from the prosecution in exchange for his testimony. All of
this supports the Illinois Appellate Court's conclusion that Sanchez did not suffer
prejudice from his attorney's decision not to seek the accomplice-witness instruction.
Second, there was sufficient other evidence supporting Sanchez's conviction.
Even if the jury had fully discounted Lopez and Ortiz's testimony in light of the
accomplice-witness instruction, there was still evidence that (1) Sanchez had been
rebuffed by Hinton; (2) Zambrano drove Sanchez, in Sanchez's car, to the scene of the
murder with the other parties; (3) video evidence shows Zambrano removing an item
from under the hood of Sanchez's car; (4) Sanchez, Zambrano, and Lopez all walked
into Hinton's apartment; (5) Hinton heard Sanchez's voice in the moments before Gooch
was shot; and (6) video evidence showed Sanchez leaving Hinton's apartment shortly
after the murder. The additional evidence of Sanchez's guilt supports the
reasonableness of the state appellate court's conclusion that the outcome of the trial
would not have been different had Sanchez's attorney sought an accomplice-witness
The third point was not expressly discussed by the state appellate court but also
supports its conclusion. In Sanchez's trial, the trial court had already introduced a
witness instruction that provided guidance similar to the accomplice-witness instruction:
Only you are the judges of the believability of the witnesses and the weight
to be given to the testimony of each of them. In considering the testimony
of any witness, you may take into account . . . any interest, bias, or prejudice
he may have, and the reasonableness of his testimony considered in light
of all the other evidence in the case.
Ex. M at 305 (Trial transcript). In particular, the jury was instructed to consider any
"interest, bias, or prejudice" of Lopez and Ortiz, which put the jury on notice of the need
to consider their testimony carefully. This point supports the proposition that the court
reasonably applied the prejudice element of Strickland.
In sum, the state appellate court reasonably applied the prejudice element of
Strickland in dealing with these claims.
Faced with a similar set of facts, the Seventh Circuit reached the same
conclusion in Blount v. Battaglia, 188 F. App'x 515 (7th Cir. 2006). In Blount, the
Seventh Circuit affirmed a district court's denial of a state prisoner's habeas corpus
petition. The petitioner argued that his attorney's failure to seek an accomplice-witness
instruction amounted to ineffective assistance of counsel. Id. at 519. In affirming the
denial of this claim, the Seventh Circuit noted the introduction of other impeaching
evidence against the witness, the evidence against Blount, and the presence of a jury
instruction that provided guidance similar to the accomplice-witness instruction. Id. at
519-20. Sanchez's claim is similar: the jury knew of additional impeaching evidence
against the witnesses, there was other evidence against him, and the same Illinois jury
instruction that the trial court gave in Blount was also given here. Id.
The Court's determination that the state appellate court acted reasonably is not
altered by the fact that another panel of the same court (with one judge in common)
overturned Zambrano's conviction on direct appeal based on his attorney's similar
failure to request an accomplice-witness instruction. In People v. Zambrano, 2016 IL
App (3d) 140178, the Illinois Appellate Court held that Zambrano, who was tried
separately from Sanchez, received ineffective assistance of counsel due to his
attorney's failure to seek an accomplice-witness instruction. Id. ¶ 32. There is a
significant difference between the case against Zambrano and the case against
Sanchez: Hinton testified that she heard Sanchez's voice in the moments before the
shooting. She also testified regarding a motive on Sanchez's part. Whereas Lopez's
testimony "was the only evidence establishing Zambrano's participation," id., there was
other evidence establishing Sanchez's involvement at the scene of Gooch's murder
right before the shot was fired. Thus the fact that the appellate court found that
Zambrano was prejudiced by the absence of an accomplice-witness instruction
regarding Lopez does not indicate that the court's finding that Sanchez was not
prejudiced was unreasonable.
In sum, the Court concludes that the state appellate court did not unreasonably
conclude that Sanchez was not prejudiced by his attorney's decision not to pursue an
accomplice-witness instruction at trial. The Court therefore denies claim one.
For the foregoing reasons, the Court directs the Clerk to enter judgment in favor
of the respondent on all of Sanchez's claims [dkt. no. 1]. The Court declines to issue a
certificate of appealability, as reasonable jurists would not find the Court's procedural
default rulings or its merits ruling on count one debatable. See 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
MATTHEW F. KENNELLY
United States District Judge
Date: February 8, 2018
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