Opinion
Case Number: 98 C 7366
July 16, 1999
MEMORANDUM OPINION AND ORDER
On June 16, we denied Steven Steward's petition for a writ of habeas corpus. This opinion sets forth our reasons for our June 16 order.
An Illinois jury convicted Steward of attempted aggravated sexual assault and aggravated battery. It was his second sexual assault conviction. His victim, Patrice, testified at trial that he forced her into a bedroom and attacked her when she tried to escape. He then took off all of his clothes, made her remove her shirt, and ordered her to perform oral sex on him. She violently yanked (and ripped) his genitals and escaped.
Steward waived his right to testify on the advice of his attorney but now tells a different story. He claims that Patrice was a prostitute whom he paid for sex and that she cut his genitals with a sharp object even though he had not provoked her. She suffered the injuries for which she was treated, he says, because he defended himself against her attack.
On appeal Steward complained of the ineffective assistance of his trial counsel, the ineffective assistance of a different attorney after trial, and an erroneous trial court ruling. The court of appeals considered and rejected each of his claims, see People v. Steward, 693 N.E.2d 436 (Ill.App.Ct. 1998), and the Illinois Supreme Court refused to hear his appeal, which raised those claims again, see People v. Steward, 705 N.E.2d 447 (Ill. 1998). Steward's petition for a writ of habeas corpus raises all of them one more time.
We will dispense with the third claim in the petition first. The trial judge granted the state's motion to allow it to impeach Steward with evidence about his prior sexual assault conviction if he took the stand. Steward argues that the ruling was wrong because the impeachment evidence would have been more prejudicial than probative under Illinois evidence law as established by People v. Montgomery, 268 N.E.2d 695 (Ill. 1971). The court of appeals, relying on Illinois cases following Luce v. United States, 469 U.S. 38 (1984), held that he could not raise this argument on appeal because he did not testify at trial. See Steward, 693 N.E.2d at 446. On habeas his argument faces an additional problem: it appears to rest solely on state law. Under the statute which authorized Steward's habeas petition, 28 U.S.C. § 2254, a federal court may grant relief to a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Without some federal nexus we cannot review a state trial judge's evidentiary decision. See Brecht v. Abrahamson, 944 F.2d 1363, 1366 (7th Cir. 1991).
One possible nexus is the constitutional right to a fair trial, which Steward mentions once, without discussion or elaboration. This is of no help to him. Steward's constitutional "argument" was invoked and then abandoned, and "[w]e need not address those arguments which are undeveloped." United States v. Thomas, ___ F.3d ___, No. 98-3948, 1999 WL 458616, at *5 (7th Cir. July 7, 1999). The argument also butts up against decisions such as Galindo v. Ylst, 971 F.2d 1427, 1429 (9th Cir. 1992), and Carrasquillo v. Kirk, 677 F. Supp. 193, 194-95 (S.D.N.Y. 1988), which hold that the Luce rule applies on habeas as well as on appeal. We do not know if the Seventh Circuit would agree, cf. Brecht, 944 F.2d at 1367-68; United States ex rel. Adkins v. Greer, 791 F.2d 590, 593-94 (7th Cir. 1986), but we need not ponder the point given that Steward focused his brief on state law alone.
We take as a given, then, that the state could have used Steward's prior sexual assault conviction to impeach him had he testified. This is important. Steward's most well-developed ineffective assistance claim is that his attorney did not establish a viable self-defense defense for him. He reasons that because he and Patrice were the only ones present at their altercation, he needed to testify in order to have any hope of contradicting her and putting self-defense in play. He therefore attributes his attorney's advice that he not testify as indicating her ignorance of the law of self-defense. He also blames his attorney for not following up on leads he thought supported his self-defense story. One such lead was his first doctor, who wrote that Steward's injury was from a razor and not a pull (which if true contradicts part of Patrice's story). Another was Patrice's doctor, who was familiar with Patrice's wounds and might, Steward thinks, have helped him establish that her story about being beaten wasn't accurate. These leads, Steward acknowledges, wouldn't get him anywhere unless he testified.
Maybe Steward is right. Maybe he would have been acquitted had he told the jury his version of events. But his attorney didn't think so. She was worried about impeachment, which presented a very real danger, not because the jurors might discount Steward's testimony but because they might infer his guilt this time because he had done it before. Her advice against testifying didn't indicate that she misunderstood the law; it indicated that she understood juries. Her advice that Steward not testify is a classic trial strategy — and trial strategies are not fair game under the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668, 691 (1984). What is more, Steward did not have to take her advice. The judge told him that it was up to him alone to decide whether to take the stand. If Steward really thought that his attorney was ruining his chances, he should have decided to testify.
On a related note, Steward also faults his attorney for not presenting a competent consent defense to the charges against him. He argues that the jury would have been less likely to believe that he sexually assaulted Patrice if they knew that she intended to have sex with him, but he acknowledges that his testimony was necessary to invoke the defense. Once again we can only answer that the attorney had good reasons for not wanting Steward to testify and that Steward alone decided he would not.
Steward next complains that his attorney failed to move for a mistrial when one of the state's witnesses testified that she met him in jail. The attorney did, however, object to the statement. The trial court sustained the objection and instructed the jury to disregard it. See Steward, 693 N.E.2d at 440. Because we assume that jurors follow the judge's instructions, see, e.g., United States v. Linwood, 142 F.3d 418, 426 (7th Cir. 1998), and Steward gives us no reason to think that the jurors here did not, we must also assume that he did not suffer any harm from his attorney's decision not to move for a mistrial.
Steward's last complaint about his trial attorney is that she failed to make a hearsay objection to the testimony of a police officer. The officer testified that a hammer which Patrice alleged Steward had used to beat her had been cleaned of hair and blood between the time of the incident and trial. There was no hearsay objection to make as far as we can tell: the officer was not repeating something someone else had told him. Steward's real contention seems to be that the answer was outside the police officer's personal knowledge. We have no reason to think Steward is right, however, so we cannot agree that his attorney should have raised any objection.
Steward's final argument concerns the attorney who represented him after trial. This attorney was the trial attorney's supervisor in the public defender's office, and Steward argues that the supervisor tried to hide his protégée's faults at Steward's expense. The supervisor took over the case after Steward himself filed a motion for a new trial in which he argued the ineffectiveness of his trial attorney. See Steward, 693 N.E.2d at 440. Steward by that time had filed a complaint against the public defender's office, so he argued that no new public defender should represent him. The trial court disagreed, and the supervisor filed a supplemental motion for a new trial in which he argued that the trial lawyer was ineffective for not advising Steward to testify and for not calling Steward's first doctor (who wrote the note about the razor) to the stand.
Steward now complains that the supervisor should have made all of the ineffective assistance arguments against the trial lawyer which Steward made on appeal and in his habeas petition. He faces an obvious problem: earlier in this opinion we found those ineffective assistance claims to be without merit. The supervisor obviously cannot be blamed for not raising losing arguments.
We have previously described the conflicts presented when one public defender is asked to argue that another is incompetent, see United States ex rel. DuQuaine v. Greer, No. 88 C 6, 1989 WL 20830, at *2 (N.D.Ill. Mar. 7, 1989) (Aspen, J.), and other cases have discussed such conflicts in detail, see, e.g., People v. Cano, 581 N.E.2d 236, 240-41 (Ill.App.Ct. 1991) (Manning, P.J.) (supervisor withdrew client's pro se ineffective assistance claim against trial lawyer, his subordinate). This case does not appear to present any of those problems. The supervisor presented Steward's best ineffective assistance claim — the lack of a credible self-defense defense — and left the others. It seems unlikely that he was covering for his colleague.
We have proceeded thus far by reviewing Steward's ineffective assistance arguments de novo. The real question, however, is whether the Illinois Court of Appeals' decision affirming Steward's conviction "involved an unreasonable application of clearly established Federal law," 28 U.S.C. § 2254(d)(1). To prevail Steward must show that the state judgment was not even "minimally consistent with the facts and circumstances of the case," Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997), or in other words that it was "so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible, outcomes." Hall v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997). The foregoing discussion shows that Steward has not carried his burden. The Illinois Court of Appeals' judgment was not only reasonable, but correct.