Westray v. Brookhart

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

JAMES WESTRAY, # N-96339, )

)

Petitioner, )

)

vs. ) CaseNo. 19-cv-728-NJR

)

D.D. BROOKHART, )

)

Respondent. )

MEMORANDUM AND ORDER1

ROSENSTENGEL,ChiefJudge:

In November 1998, Petitioner James Westray pled guilty in Williamson County, Illinois,

to two counts of murder. (Doc. 1). He chose to have a jury decide his eligibility for the death

penalty; he was found eligible and was sentenced to death on February 9, 1999. His sentence was

later commuted to life without parole by former Illinois Governor George Ryan.

Westray is now in the custody of the Illinois Department of Corrections at Lawrence

Correctional Center. On July 3, 2019, hefiled this action seeking habeas corpus relief pursuant to

28 U.S.C. §2254, claiming that he was denied the effective assistance of counsel because the

attorney who represented him during the plea and sentencing proceedings failed to investigate or

present mitigating evidence at thesentencing hearing, and his post-plea counsel failed to raise the

issue of pleacounsel’s ineffectiveness.(Doc. 1, pp. 19-23).

Respondent filed a Response (Doc. 14) and numerous exhibits (Doc. 15). Westray replied

(Doc. 19)and filed a motion for an evidentiary hearing. (Doc. 20). Respondent didnot respondto

that motion.

1 Citations in this Order are to the document and page numbers assigned by the Case

Management/Electronic Case Filing (“CM/ECF”) system.

For the reasons discussed below, the Court finds that an evidentiary hearing is not

warranted, and Westray’s Section 2254 Petition will be denied.

RELEVANT FACTS AND PROCEDURAL HISTORY2

Circuit Court Plea and Penalty Phase

Westray was charged with four counts of murder for the August 1998 shooting of Elizabeth

Opatt while he and a companion (Keith Cook) robbed the Williamson County bar where she

worked. (Doc. 15-5, p. 1). He entered an open plea of guilty to two of those counts, and the State

dismissed the others. Id.; (Doc. 15-11, p. 1). A jury found Westray eligible for the death penalty

based on the murder having beencommitted during a robbery.

At the hearing on aggravation and mitigation, the State presented evidence on Westray’s

participationin 1989 at the age of 18in a string of residential burglaries and robberies carried out

by a group of young men under the direction of an older man. (Doc. 15-11, p. 1). Westray

eventually cooperated with the investigation of those crimes and spent time in prison. Id. at 3.

Aggravating evidence also included Westray’s more recent criminal history, including two

robberies in 1997 and 1998, as well as his unexecuted plot with a police informant to commit

another robbery where he planned to “shoot the lady at the register.” Id. at 1-2. After Westray’s

arrest for the Opatt murder, he attempted to escape from jail, managing to get to the building’s

roof through the duct work. When confronted, he jumped off the roof, fell three stories, and was

hospitalized. Id. at 2.

Westray’s first attorney, who represented him throughout the plea and sentencing

2This summary of the facts is derived from the detailed descriptionsby the Illinois Appellate Court, Fifth

District, in its Rule 23 Ordersaffirming the denial of Westray’s motion to withdraw his guilty plea (Doc.15-

5, (People v. Westray, No. 5-06-0678, Sept. 23, 2008)) and affirming the dismissal of Westray’s

postconviction petition. (Doc. 15-11, (People v. Westray, No. 5-14-0457, 2018 IL App (5th) 140457-U,

April 30, 2018)). The state court’s factual findings are presumed to be correct unless rebutted by clear and

convincing evidence, which Westrayhas not done. 28 U.S.C. §2254(e).

proceedings, presented mitigating evidence including testimony from Westray’s mother and a

family friend on the years of physical and emotional abuse inflicted on him by his stepfather.

(Doc.15-5, pp. 2-3). One beating was so severe that the stepfather broke the back of a reclining

chair that Westray fell onto during the beating.Theabuse resulted in child welfare officials twice

removing Westray from the home, but he was later returned. Id. at 2. After Westray was released

from his first prison sentence, he married and became involved in a Christian ministry working

with inner-city youth and gang members. The couple later divorced, and Westray became

depressed and began drinking and spending time with the friends who had been involved in the

1989 criminal activity. Id. Westray testified that the 1997 and 1998 robberies that preceded the

murder were the ideas of Tracy and Keith Cook, with whom Westray and his girlfriend were living

at the time; they had moved in with the Cooks due to financial difficulties. Id. at 3. Keith Cook

was Westray’s codefendant in the Opatt murdercase. The jury found the mitigating evidence was

not sufficient to preclude the imposition of the death sentence on Westray. Id.

First Direct Appeal and Remand

Westray appealed directly to the Illinois Supreme Court, arguing that he was not properly

advised of his appeal rights pursuant to Illinois Supreme Court Rule 605(b). He also challenged a

jury instruction at the death penalty eligibility phase and claimed that the State improperly argued

that his guilty plea amountedto a confession that he was the shooter. (Doc. 15-11, p. 3). While this

appeal was pending, Westray filed a pro se postconviction petition in April 2000 claiming that

plea counsel was ineffective on several grounds. (Doc. 15-11, p. 3; Doc. 15-13, pp. 426-431).

Postconviction counsel was appointed but the parties agreed the matter should be held in abeyance

until the direct appeal was decided. (Doc. 15-11, p. 3).

In September 2000, the State conceded that Westray had not been properly admonished

under Rule 605(b), and the Illinois Supreme Court remanded the case to the trial court for

proceedings in compliance with that Rule. New counsel was appointed for Westray. After Westray

wasproperly admonished, he filed a motion to withdraw his guilty plea on the grounds that it was

not knowing and voluntary and plea counsel failed to sufficiently investigate mitigating evidence.

(Doc. 15-11, p. 3; Doc. 15-13, p. 534).

In July 2001, the trial court denied Westray’s motion to withdraw his plea, and he appealed

again to the Illinois Supreme Court.

Second Direct Appeal and Commutation of Sentence

In January 2003, while Westray’s appeal was still pending, then-Governor George Ryan

commuted his death sentence to natural life in prison. (Doc. 15-11, p. 3). The Illinois Supreme

Court initially dismissed Westray’s appeal but later reinstated it and transferred the appeal to the

Illinois Appellate Court, Fifth District, where it was docketed under No. 5-06-0678. (Doc. 15-11,

p. 3; Doc.15-5).

The appellate court considered Westray’s argument that his guilty plea was not knowing

or intelligent because he was not advised that the plea would be used as an admission that he

inflicted Opatt’s fatal injuries, an element that the State was required to prove in the death penalty

eligibility hearing. (Doc. 15-5, pp. 2-4; Doc. 15-11, p. 3). On September 23, 2008, the Fifth District

affirmed the trial court’s denial of Westray’s motion to withdraw his plea, finding no abuse of

discretion, and denied his request for a new eligibility hearing. (Doc. 15-5). The court concluded

that Westray’s plea was not an admission or stipulation that he was eligible for the death penalty,

and the State put forth sufficient proof to support the jury’s finding of eligibility. Id.at 3-4. Further,

the jury was properly instructed on the elements for death penalty eligibility. Id.at 4-5.Westray’s

Petition for Leave to Appeal (“PLA”) to the Illinois Supreme Court was denied on January 28,

2009. (Doc. 15-6).

Postconviction Proceedings

In 2013, Westray’s appointed postconviction counsel filed an amended petition, arguing

that plea counsel was ineffective for failing to investigate and present available mitigating evidence

from non-family witnesses, post-plea counsel was ineffective for failing to raise this issue, and his

claim was not rendered moot by the commutation of his death sentence because he could have

received a term of 20-60 years if the death penalty had not been imposed. (Doc. 15-11, pp. 4-5).

Postconviction counsel obtained a school counseling record documentingabuse of Westray by his

brother. She attempted to locate two witnesses without success, and the trial court denied her

motion for the appointment of an investigator to search for them. Id.at 4.

In August 2014, the trial court dismissed the postconviction petition on the basis that the

ineffective assistance claim arising from the aggravation/mitigation hearing was mooted by the

commutation of Westray’s death sentence. (Doc. 15-7; Doc. 15-11, p. 4). Westray appealed.

On April 30, 2018, the Fifth District affirmed the dismissal of Westray’s postconviction

petition, concluding that the issues he raised became moot when his death sentence was commuted.

(Doc. 15-11 (Appeal No. 5-14-0457), pp. 4-5). The court concluded that it was bound to follow

Illinois Supreme Court precedent which held, on virtually identical facts, that the governor’s

commutation of a death sentence replaces the judicially-imposed sentence “with a lesser,

executively imposed sentence,” which is not subject to judicial review. Id.(citing People v. Lucas,

203 Ill. 2d 410 (2002); People v. Mata, 217 Ill. 2d 535, 541 (2005) and similar cases).

Notwithstanding contrary Seventh Circuit authority,3the court found it “is unable to offer effective

3 Simpson v. Battaglia, 458 F.3d 585, 595 (7th Cir. 2006); Madej v. Briley, 371 F.3d 898, 899 (7th Cir.

2004) (concluding that gubernatorial commutation of a sentence does not moot a challenge based on flaws

at the aggravation/mitigation stage).

relief to a defendant challenging his [commuted] sentence.” (Doc. 15-11, p. 4) (citing Lucas, 203

Ill. 2d at 418; People v. Harris, 357 Ill. App. 3d 330, 336 (2005)).

On September 26, 2018, the Illinois Supreme Court denied Westray’s PLA. (Doc. 15-12).

This habeas corpus action followed.

LAW APPLICABLE TO SECTION2254PETITION

This habeas petition is subject to the provisions of the Antiterrorism and Effective Death

Penalty Actof 1996, 28 U.S.C. § 2254 (“AEDPA”), which“modified a federal habeas court’s role

in reviewing state prisoner applications in order to prevent federal habeas ‘retrials’ and to ensure

that state-court convictions are given effect to the extent possible under law.” Bell v. Cone, 535

U.S. 685, 693 (2002).

Habeas is not merely another round of appellate review. 28 U.S.C. §2254(d) restricts

habeas relief to cases where the state court determination “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 “a decision that was based on an unreasonable

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

A judgment is “contrary to” Supreme Court precedent if the state court “contradicts the

governing law set forth in [Supreme Court] cases.” Coleman v. Hardy, 690 F.3d 811, 814 (7th Cir.

2012) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is an

“unreasonable application of” clearly established federal law if the state court “identifies the

correct governing legal rulefrom [Supreme Court]casesbut unreasonably applies itto the facts of

the particular stateprisoner’s case.” Coleman, 690 F.3d at 814 (quoting Williams, 529 U.S. at 407).

Federal habeas review serves as “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, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979)

(Stevens, J., concurring)).The Supreme Court has repeatedly emphasized that the Section 2254(d)

standard “is intentionally ‘difficult to meet.’” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015)

(quoting White v. Woodall, 572 U.S. 415, 419 (2014), and Metrish v. Lancaster, 569 U.S. 351, 358

(2013)).

Even an incorrect or erroneous application of the federal precedent will not justify habeas

relief; rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner

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.” Harrington, 562 U.S. at 103. “A state court’s

decision is reasonable, even if incorrect in our independent judgment, so long as ‘fairminded jurists

could disagree’ on the correctness of the state court’s decision.’” McDaniel v. Polley, 847 F.3d

887, 893 (7th Cir. 2017) (internal citations omitted). For habeas relief to be granted, the state

court’s application of federal precedent must have been “objectively unreasonable,” meaning

“something like lying well outside the boundaries of permissible differences of opinion.” Jackson

v. Frank, 348 F.3d 658, 662 (7th Cir. 2003).(internal citations omitted).

In addition to the requirement for timely filing under the AEDPA, a habeas petitioner must

clear two procedural hurdles before the Court may reach the merits of his habeas corpus petition:

exhaustion of remedies and procedural default.Bolton v. Akpore,730 F.3d 685, 694-696 (7th Cir.

2013). Before seeking habeas relief, a petitioner is required to bring his claim(s) through “one

complete round of the State’s established appellate review process” because “the exhaustion

doctrine is designed to give the state courts a full and fair opportunity to resolve federal

constitutional claims before those claims are presented to the federal courts.” O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999); see also 28 U.S.C. §2254(c). Under the Illinois two-tiered

appeals process, habeas petitioners must fully present their claims not only to an intermediate

appellate court, but also to the Illinois Supreme Court, which offers discretionary review.Id.

Respondent concedes that Westray’s Petition is timely filed (Doc. 14, p. 7) and does not

argue that his claims are unexhausted or procedurally defaulted.

ANALYSIS

Effect of State Courts’ Conclusion that the Commutation of Westray’s

Death Sentence Rendered his Ineffectiveness Claims Moot

The trial court and Illinois Appellate Court, applying binding Illinois Supreme Court

precedent, determined that because Westray is now serving the life sentence resulting from the

Governor’s executive action,Westray’s postconviction claims of ineffective assistance of counsel

during his sentencing proceeding and motion to withdraw his guilty plea had become moot and

unreviewable by the state courts.4(Doc. 15-7; Doc. 15-11); People v. Westray, 2018 WL 2063867

(Ill. App. April 30, 2018) (citing People v. Mata, 842 N.E.2d 686, 694, 217 Ill. 2d 535, 547 (2005);

People v. Lucas, 787 N.E.2d 113, 119, 203 Ill. 2d 410, 418-19 (2002)).Seventh Circuit precedent

holds, however, that where a Governor has commuted a state death sentence to a term of natural

life, that action does not limit the reach of federal habeas review. Simpson v. Battaglia, 458 F.3d

585, 596 (7th Cir. 2006); Madej v. Briley, 371 F.3d 898, 899-900 (7th Cir. 2004) (where district

court found counsel was ineffective during death penalty sentencing, and petitioner could have

been sentenced to a term of years, petitioner was entitled to seek lower sentence); United Statesex

rel. Harris v. McCann, 558 F. Supp. 2d 826, 836-37 (N.D. Ill. 2008) (based on the Supremacy

Clause, federal constitutional claims arising from capital sentencing hearing are not moot

4 Westray’s argument that the Illinois courts refused to allow him to “fully litigate his claim” and thus

denied him “meaningful access to the courts” is without merit and does not present a cognizable habeas

claim. (Doc. 1, p. 23).

regardless of commutation). Westray, like the petitioner in Madej, could have been sentenced to a

term of 20-60 years instead of life, thus hisineffective assistance claims are not mootin the context

offederal habeas review.

Ground 1 –Ineffective Assistance of Plea Counsel at Sentencing

Ahabeas court must determine whether the state court’s decision on the issue at hand was

contrary to or an unreasonable application of federal law, or amounted to an unreasonable

determination of the facts in light of the evidence presented. 28 U.S.C. §2254(d). In doing so, the

court reviews the decision of the last state court to rule on the merits of the claim raised in the

habeas petition. Simpson v. Battaglia, 458 F.3d 585, 592 (7th Cir. 2006); Charlton v. Davis, 439

F.3d 369, 374 (7th Cir. 2006).

During Westray’s postconviction proceedings, the trial court never reached the merits of

his ineffective assistance claims – it simply granted the State’s motion to dismiss, finding the

claims to be moot because of the commutation of his death sentence. (Doc. 15-7). On review of

that ruling, the Illinois Appellate Court noted that it had jurisdiction to decide whether the trial

court correctly determined that the claim was moot, and if it found the mootness decisioncorrect,

then the appellate court itself would lack jurisdiction to rule on the merits of Westray’s

constitutional claims. (Doc. 15-11, p. 4). Because the appellate court affirmed the trial court’s

mootness finding, it did not analyze the merits, leaving this Court with no state court decision on

the merits of the postconviction claims which may bereviewed.

Respondent argues, however, that the trial court’s earlier denial of Westray’s motion to

withdraw his guilty plea –which raised the claim of ineffectiveness of plea counsel –amounted to

a decision on the merits of that issue and should be accorded deferential review. (Doc. 14, p. 8;

Doc. 15-13, p. 534). Westray disagrees, asserting that his post-remand counsel did not claim

“constitutional violations for sentencing” thus the trial court could not have reviewed his claim of

ineffective assistance at sentencing. (Doc. 19, pp. 1-2).

Respondent is correct that on remand, counsel’s amended motion to withdraw guilty plea

raised, as one of two grounds, the claim that Westray “was denied the effective assistance of trial

counsel, because trial counsel failed to conduct a reasonable investigation into mitigation evidence

and circumstances of the Defendant.” (Doc. 15-13, p. 534). The other ground was that Westray

did not knowingly and voluntarily plead guilty because he was acting on a misapprehension of the

facts and the law–and this is the only issuecounsel argued to the trial court when the motion was

heard. (Doc. 15-13, pp. 190-222, motion hearing of July 23, 2001).The trial court’s oral denial of

Westray’s motion to withdraw his guilty plea necessarily encompassed the denial of the included

ineffective assistance claim, but the record contains no discussion, reasoning, or analysis of that

issue. Similarly, the knowing/voluntary plea issue was the only matter raised in the appeal from

the trial court’s denial of Westray’s motion to withdraw his plea, so that decision contains no

discussion of the ineffective assistance claim. (Docs. 15-3; 15-4; 15-5; Appeal No. 5-06-0678).

The Supreme Court in Harrington v. Richter held that when a state court rejects a prisoner’s

federal claim withoutdiscussion, a presumption arises that the state court adjudicated the claim on

its merits, unless some state law procedural principle indicates otherwise. Harrington, 562 U.S.

86, 98-99 (2011). This presumption also applies when the state court’s decision expressly

addresses some but not all of a prisoner’s claims. Johnson v. Williams,568 U.S. 289, 298 (2013);

Lee v. Avila, 871 F.3d 565, 571-72 (7the Cir. 2017). That is the situation here with respect to the

trial court’s rejection of Westray’s motion to withdraw his guilty plea. Westray has not presented

any information that would rebut the Harrington presumption, thus the state trial court’s entire

decision is subject to deferential review under Section 2254(d). Further, the Court is convinced

that even if it were toreview Westray’s claims under the more lenient de novostandard, he would

still not be entitled to habeas relief.

Westray asserts that his plea/sentencing counsel failed to investigate or present mitigating

evidence of his abusive childhood for presentation to the jury during the aggravation/mitigation

hearing, thus denying him the effective assistance of counsel. (Doc. 1, pp. 19-22). He argues that

counsel could have called additional witnesses to present mitigation evidence, and that a thorough

investigation would have revealed the school counseling summary (found later by postconviction

counsel) which discussed abuse of Westray by his stepbrother and difficult relations with his

mother and stepfather. Westray identifies two potential witnesses: Randy Knox, author of the

counseling summary, and Derek Flatt, who witnessed Westray’s stepfather punching him and

knocking himto the ground.(Doc. 1, p. 21). Westray contends that had this evidence of his abusive

childhood and harmful family dynamics been presented, there is a reasonable probability that the

jury would not have imposed the death sentence,and he could thenhave been sentenced to a term

of years rather than life.

A claim of ineffective assistance of counsel must be analyzed under Strickland v.

Washington, 466 U.S. 668 (1984). Analysis under Strickland and on habeas review under

Section2254 are both highly deferential. Where the state court has decided an ineffective

assistance claim, the review is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105

(2011).Andbecause Stricklandsets forth a general standard, “the range of reasonable applications

is substantial.” Ibid.

In order to show ineffective assistance of counsel, a petitioner must demonstrate (1) that

counsel’s performance “fell below an objective standard of reasonableness” (“the performance

prong”), and (2) “that the deficient performance prejudiced the defense” (“the prejudice prong”).

Strickland, 466 U.S. at 687-88.A petitioner must satisfy both prongs of the Stricklandanalysis to

be eligible for habeas relief. There is no mandatory order for the analysis, and a habeas court is

not required to address both prongs if the petitioner has failed to make a sufficient showing on one.

Id.at 697.

Under the first Stricklandprong, the Court must inquire into “the objective reasonableness

of counsel’s performance.” Harrington, 562 U.S. at 110. “Strickland does not guarantee perfect

representation, only a ‘reasonably competent attorney.’” Id. To avoid the temptation to second-

guess counsel’s assistance, there is a strong presumption of adequate assistance and the exercise

of reasonable professional judgment. Id. at 107-08. Indeed, a petitioner’s right to effective

assistance of counsel is violated only when counsel’s conduct, in light of all the circumstances,

“[was] outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

To satisfy the second prong, a petitioner must demonstrate “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. “The likelihood of a different result must be substantial, not just

conceivable.” Harrington, 562 U.S. at 112.

The state court is not required to give the reasons for its decision. Where the state court’s

reasons are not explained, a habeas petitioner must show “there was no reasonable basis for the

state court to deny relief.” Harrington v. Richter, 562 U.S. 86, 98 (2011). As noted above, where

the federal issue was presented to the state court, an unexplained decision denying relief is

presumed to have been adjudicated on the merits in the absence of an indication to the contrary.

Id. at 99. The habeas court must “determine what arguments or theories supported or, as here,

could have supported, the state court’s decision; and then it must ask whether it is possible

fairminded jurists could disagree that those arguments or theories are inconsistent with the holding

in a prior decision of this Court.” Id. at 102; Sexton v. Beaudreaux, 138 S. Ct. 2555, 2560 (2018)

(per curiam).

“By its terms, [Section] 2254(d) bars relitigation of any claim ‘adjudicated on the merits’

in state court, subject only to the exceptions in [Sections]2254(d)(1) and (d)(2).” Harrington, 562

U.S. at 98.The question for this Court is not whether it believes counsel was ineffective, but rather,

whether the state court’s adjudication of the matter was an unreasonable application of Strickland.

See Harrington, 562 U.S. at 101. Section 2254, as amended by AEDPA, “preserves authority to

issue the writ in cases where there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with this Court’s precedents. It goes no further.” Harrington, 562 U.S.

at 102. As the Seventh Circuit has observed, “the bar for establishing the unreasonableness of a

state court’s application of Strickland ‘is a high one, and only a clear error in applying Strickland

will support a writ of habeas corpus.’” Jones v. Brown, 756 F.3d 1000, 1007 (7th Cir. 2014) (citing

Allen v. Chandler, 555 F.3d 596, 600 (7th Cir. 2009)).

Looking first at the performance prong, Westray insists that counsel conducted no

investigation of potential witnesses other than his mother, who told the jury about the physical and

emotional abuse he endured at the hands of his stepfather. (Doc. 1, pp. 20-22; Doc. 19, p. 7). His

attorney did not prepare to present testimony from family friend Beth Ann Kern, and did so only

after she requested to testify on the day of the hearing. (Doc. 19, p. 7; Doc. 15-13, p. 541).

Westray’s pro se postconviction petition and his mother’s attached affidavit verified that the

attorney told his mother she would have to do the mitigation investigation on her own, and he

refused to issue subpoenas to obtain records from Westray’s schools or a clinic that treated him,

when those institutions refused to release records to her. (Doc. 15-13, pp. 427, 431). The record

does not reveal whether the trial court considered that information when it denied Westray’s

motion to withdraw his plea, but the documents were filed in April 2000 in advance of that denial.

An attorney’s “particular decision not to investigate must be directly assessed for

reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s

judgments.” Strickland, 466 U.S. at 691. “There comes a point where a defense attorney will

reasonably decide that another strategy is in order, thus ‘mak[ing] particular investigations

unnecessary.’” Cullen v. Pinholster, 563 U.S. 170, 197 (2011) (quoting Strickland, 466 U.S. at

691). The transcript of the aggravation/mitigation hearing indicates that counsel investigated the

circumstances of Westray’s prior crimes, the current offense, and other witnesses’ statements

sufficiently to conduct effective cross-examination of the State’s aggravation witnesses and to

present mitigation evidence. (Doc. 15-15, pp. 929-30, 937-40, 945-48, 967-68, 972-74, 980-82,

989-91, 995-96, 1008-1072). The jury heard about Westray’s acceptance of responsibility for the

crimeshe committed as a teenager,and histestimony that his codefendant wasthe one who killed

the victim in the instant case. Westray’s mother and friend, and Westray himself, told about his

physical and mental abuseat the hands of his stepfather.

Counsel mayhave made a reasoneddecisionthat the testimony about Westray’s childhood

trauma was sufficient to establish mitigation in that regard.Additional testimony from Derek Flatt,

who witnessed Westray’s stepfather beating him, could be regarded as cumulative to the other

evidence of that abuse. Potential evidence from school counselor Knox was less cumulative as it

would have indicated Westray was abused by his brother in addition to his stepfather, and that he

had an emotionally unhealthy relationship with his parents. Counsel’s apparent lack of effort to

secure school or counseling records or to seek out non-family-member witnesses is troubling and

could provide grounds for a reasonable jurist to find that his investigation fell short of what

Stricklandrequires.

Based on the record of mitigation evidence heard by the jury and the possibly cumulative

nature of the evidence that was not presented, the trial court could have concluded that counsel’s

performance at the aggravation/mitigation stage was adequate. Alternatively, the court might have

found counsel’s performance and investigation to be deficient, but concluded that Westray was

not prejudiced in light of the strength of the State’s evidence in aggravation. That evidence

included Westray’s involvement as a teenager in six crimes (burglaries and an attempted armed

robbery), as well as two armed robberies within the year prior to his arrest for murder. (Doc. 15-

11, pp. 1-2; Doc. 15-15, pp. 916-1007). In the recent crimes, he took money from the owners of

Pulley’s Barbeque at gunpoint and stole their car, androbbed Tracy Cook’s coworker on her way

to deposit the day’s Dollar General Store receipts. In addition, Westray met with Keith Cook and

Rex Hopper to plot a future robbery, during which Westray stated his intention to shoot the store

clerkduring that crime and possibly kill a co-conspirator to avoid sharing stolen money with him.

(Doc. 15-11, p. 2). When Westray left that meeting and police tried to arrest him, he fled. While

awaiting trial in the instant case, Westray attempted to escape from jail by climbing through

ductwork to the roof, where he jumped when confronted by authorities, falling three stories.

Given this evidence of Westray’s serious and repeated criminal conduct, even if counsel

had obtained and presented the additional mitigating evidence Westray describes, the trial court

could have reasonably concluded that there was little likelihood of a different result. Such a

conclusion would not have been an unreasonable application of the Strickland standard, which

requires the petitioner to demonstratea“reasonable probability” of a different outcome if counsel

had presented the other mitigation evidence. See Strickland, 466 U.S. at 694. Westray does not

demonstrate any clear error in the state court’s presumed application of Strickland. A conclusion

that Westray was not prejudiced by his counsel’s performance would be well within the boundaries

of permissible differences of opinion among fairminded jurists applying Strickland. This Court

concludes that, in view of theconsiderableaggravation evidence, it is not reasonably probable that

the testimony of Knox or Flatt would have convinced the jury not to impose the death penalty.

There is certainly not a substantial likelihood of a different result.See Harrington, 562 U.S. at 112.

Finally, the Court concludes that Westray is not entitled to an evidentiary hearing under 28

U.S.C. § 2254(e)(2) in this matter. The trial court held no hearing on his postconviction claim of

ineffective assistance because it concluded the matter was moot. (Doc. 1, p. 22). Westray argues

that the commutation of his death sentence to life “failed to provide a full remedy for the Sixth

Amendment violation” because he was denied a postconviction hearing which, if he had prevailed,

would have entitled him to a new sentencing hearing which might have resulted in a sentence of

less than natural life. Id. In Westray’s view, the remedy is for this Court to hold an evidentiary

hearing on the ineffectiveness claims. (Doc. 1, p. 23).

Federal habeas review under Section 2254(d) “is limited to the record that was before the

state court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181

(2011). Only after the habeas court determines that a petitioner has “overcome the limitation of

[Section]2254(d)(1) on therecord that was before th[e] state court” may the federal court consider

whether an evidentiary hearing is warranted. Id.at 185. And “Section 2254(d) applies even where

there has been a summary denial.” Cullen, 563 U.S. at 187; see alsoHarrington, 562 U.S. at 100.

As discussed above, Westray has not shown that the state court contradicted or unreasonably

applied clearly established Supreme Court precedent, thus he has not surmounted the Section

2254(d)(1) hurdle andis not entitled to anevidentiary hearing in this Court.

Westray has not demonstrated that he is entitled to habeas relief on Ground One.

Ground 2 –Ineffective Assistance of Post-Plea Counsel after Remand

Westray claims thathis post-plea counsel, who represented him on the motion to withdraw

his guilty pleaafter remand by the Illinois Supreme Court,failed to raise the issue of plea counsel’s

ineffectiveness and should have done so in a motion to reduce sentence. (Doc. 1, p. 20).

Respondent counters that post-plea counsel did in fact raise the issue in the amended motion to

withdraw guilty plea, which states that Westray “was denied the effective assistance of trial

counsel, because trial counsel failed to conduct a reasonable investigation into mitigation evidence

and circumstances of the Defendant.” (Doc. 15-13, p. 534). The trial court heard and denied the

motionto withdraw the guilty pleaon July 23, 2001. (Doc. 15-13, pp. 190-220).

Because post-plea counsel did in fact raise the issue of the ineffectiveness of Westray’s

plea/sentencing counsel, Westray’s second claim for relief fails. His argument that the motion to

withdraw guilty plea “made no claim of constitutional violations for sentencing” is unavailing.

(Doc. 19, p. 2). The very claim that his prior counsel was ineffective for failing to investigate or

present additional mitigating evidence, raised in the motion, is a claim that Westray was denied

his constitutional right to effective representation during the sentencing proceeding when thejury

determined whether or not the death penalty should be imposed.

Further, Westray does not explain why post-plea counsel was allegedly ineffective for

failing to raise the ineffectiveness of plea counsel in a motion to reduce sentence, when counsel

includedthe claim in the motion to withdraw plea.His case was remanded to the trial court for the

specific purpose of compliance with Illinois Supreme Court Rule 605(b); under that rule, a

defendant convicted after a guilty plea must either move to withdraw his guilty plea or move for

the trial court to reconsider his sentence before he can perfect an appeal. Counsel complied with

the required procedure by presenting Westray’s motion to withdraw his plea, thus allowing his

appeal to proceed.

Westray is not entitled to habeas relief on Ground Two.

CERTIFICATE OF APPEALABILITY

Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, this Court must “issue or

deny a certificate of appealability when it enters a final order adverse to the applicant.” A

certificate should be issued only where the petitioner “has made a substantial showing of the denial

of a constitutional right.” 28 U.S.C. §2253(c)(2).

In order for a certificate of appealability to issue, a petitioner must show that “reasonable

jurists” would find this Court’s “assessment of the constitutional claims debatable or wrong.” See

Slack v. McDaniel, 529 U.S. 473, 484 (2000); Buck v. Davis, 137 S. Ct. 759, 773 (2017). While

this Court is satisfied that its conclusions are correct, it is possible that a reasonable jurist could

conclude that the state trial court’s denial of the ineffective assistance claim in Ground One,

without stating any reasoning, either should not be entitled to deferential review or amounted to

an incorrect or unreasonable application of Strickland. Another court could resolve the issue

differently from this Court’s conclusion. The Court therefore finds that Westray has made a

substantial showing of the denial of a constitutional right as to the claim in Ground One.

Accordingly, Westray is GRANTED a certificate of appealability as to the claim in

Ground One, permitting him to appeal this Court’s denial of that portion of his Petition under

28U.S.C. §2254.Westray shall note that in order to perfect an appeal, he is still required to file a

timely notice of appeal should he wish to seek review of this order.

However, the Court DENIESa certificate of appealability as to Ground Two, as reasonable

jurists would not dispute the conclusion that post-plea counsel raised the issue of prior counsel’s

ineffectiveness. Westray may reapply for a certificate of appealability on that issue to the United

States Court of Appeals, Seventh Circuit. See FED. R. APP. P. 22(b); 28 U.S.C. § 2253(c)(1).

CONCLUSION

James Westray’s Petition for habeas relief under 28 U.S.C. § 2254 (Doc. 1) and his Motion

for Evidentiary Hearing (Doc. 20) are DENIED. This entire action is DISMISSED with

prejudice. The Clerk of Court shall enter judgment accordingly.

If Westray wishes to appeal the dismissal of this action, his notice of appeal must be filed

with this Court within 30 days of the entry of judgment. FED. R. App. P. 4(a)(1)(A). A motion for

leave to appeal in forma pauperis (“IFP’’) must set forth the issues Westray plans to present on

appeal. See FED. R. App. P. 24(a)(1)(C). If Westray does choose to appeal and is allowed to proceed

IFP, he will be liable for a portion of the $505.00 appellate filing fee (the amount to be determined

based on his prison trust fund account records for the past six months) irrespective of the outcome

of the appeal. See FED. R. APP. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons vy. Kerlinger, 547 F.3d

724, 725-26 (7th Cir. 2008); Sloan v. Lesza, 181 F.3d 857, 858-59 (7th Cir. 1999); Lucien v.

Jockisch, 133 F.3d 464, 467 (7th Cir. 1998). A proper and timely motion filed pursuant to Federal

Rule of Civil Procedure 59(e) may toll the 30-day appeal deadline. FED. R. App. P. 4(a)(4). A Rule

59(e) motion must be filed no more than twenty-eight (28) days after the entry of the judgment,

and this 28-day deadline cannot be extended. Other motions, including a Rule 60 motion for relief

from a final judgment, do not toll the deadline for an appeal.

IT IS SO ORDERED.

DATED: September 14, 2020

Thee Rioetg

NANCY J. ROSENSTENGEL |

Chief U.S. District Judge

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