Watson, Jesse v. Anglin, Keith

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3602
JESSE W ATSON,
Petitioner-Appellant,
v.
K EITH A NGLIN,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 04-2059—Harold A. Baker, Judge.
A RGUED D ECEMBER 12, 2008—D ECIDED M ARCH 30, 2009
Before C UDAHY, F LAUM, and W OOD , Circuit Judges.
C UDAHY, Circuit Judge. Jesse Watson, a state inmate
in the Danville Correctional Center, is serving an
aggregate 60-year sentence for multiple counts of at-
tempted murder, aggravated battery with a firearm and
reckless conduct. The district court denied Watson’s
habeas corpus petition, finding that he was not denied
effective assistance of counsel during his criminal trial
or his direct appeal. We affirm.
2 No. 07-3602
I.
Jesse and Pearl Watson married in 1978 and divorced
in 1990. On the morning of July 30, 1990, Watson argued
with Pearl at the developmental disabilities center in
Kankakee, Illinois where they both worked.1 That same
day at about 8:30 in the evening, Watson defied a restrain-
ing order by visiting Pearl at her home. He entered the
house uninvited and found Pearl in the living room
together with her new boyfriend Clifford Nelson, her
two daughters from a previous relationship, her daugh-
ters’ boyfriends and her grandson. After Watson
was unable to persuade Pearl to talk with him in
private, he announced that it was “party time,” drew a
gun and opened fire on the gathering. First, he shot
Pearl, who had been holding her grandson Antonio on
her lap at the time. (Pearl managed to throw Antonio to the
ground before the bullet struck her in the stomach
and lodged in her spine.) Next, Watson turned his atten-
tion to Pearl’s boyfriend Nelson, firing on him re-
peatedly as he attempted to flee and hitting him in
both legs and an arm. Watson then opened fire on
Pearl’s daughter Dormiletha, shooting her in the arm
and also hitting her boyfriend Terrence Lindsey in the
arm as Lindsey attempted to pull Dormiletha from the
path of the gunfire. Finally, Watson walked over to
1
Because Pearl Watson shares the same last name as the
petitioner, and her daughters and grandson also share the
same last name, we will refer to them by their first names
in order to avoid confusion. We will refer to the petitioner
himself and his other victims by their last names.
No. 07-3602 3
Pearl’s side, held his gun to her head and repeatedly
pulled the trigger. By then, however, the gun was empty.
Watson was charged with four counts of attempted
murder and aggravated battery with a firearm. He
rejected the State’s plea offer, 2 and a jury convicted him
of three counts of attempted murder and three counts
of aggravated battery with a firearm—based on the shoot-
ing of Pearl, Dormiletha and Nelson—and one count of
reckless conduct, based on the shooting of Lindsey. The
trial court sentenced Watson to an aggregate sentence
of 60 years’ imprisonment: 30 years for the battery and
attempted murder of Pearl, 15 years for the battery and
attempted murder of Dormiletha and 15 years for the
battery and attempted murder of Nelson.3
After his conviction and sentence became final,
Watson commenced a state court collateral challenge,
alleging that he was denied effective assistance of
counsel in three ways: first, he argued that trial counsel
was ineffective for failing to render proper advice con-
2
The parties disagree about what the plea offer was. Watson
contends that the State offered a sentence of 20 years’ imprison-
ment in exchange for his guilty plea. The State contends that
the offer was 24 years.
3
Watson was given identical, concurrent sentences for each
set of battery and attempted murder charges. The set of sen-
tences for each victim was ordered to run consecutive to the
other two. Watson was also given a one-year sentence for the
reckless conduct charge, which was ordered to run concur-
rent to the aggregate 60-year sentence.
4 No. 07-3602
cerning the criminal sentence he was facing if he were
found guilty at trial; second, he argued that his trial
counsel was ineffective for failing to object to the fact
that he was charged with attempted murder, but the
jury instructions did not define “murder”; and third, he
argued that his appellate counsel was ineffective for
failing to make an issue of trial counsel’s failure to chal-
lenge the jury instructions on direct appeal.
The history of the post-conviction proceedings in State
court is somewhat tortured and need not be recounted
in detail here. What is significant is that the State trial
court denied Watson’s post-conviction petition on the
merits in 2001, and the Appellate Court of Illinois
affirmed over one judge’s dissent.4 The Appellate Court
found that Watson was not prejudiced by his trial
counsel’s advice relating to the State’s plea offer, noting
that Watson had testified only that he would have “con-
sidered” pleading guilty if he had been properly advised
of his maximum possible sentence. The Appellate Court
also appeared to reject Watson’s claims based on the
jury instructions that were given at his trial.
The district court denied Watson’s subsequent federal
habeas petition, but granted a certificate of appealability
because it took it to be a “closer call” whether Watson’s
lawyers gave ineffective assistance by failing to chal-
lenge the jury instructions.
4
The Supreme Court of Illinois denied leave to appeal.
No. 07-3602 5
II.
We review the decision of the last state court to address
Watson’s arguments. See Williams v. Bartow, 481 F.3d 492,
497-98 (7th Cir. 2007). Our review is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. The
AEDPA was intended to prevent federal habeas “retrials”
and to ensure that state court convictions are given
effect to the extent possible under the law. Bell v. Cone,
535 U.S. 685, 693 (2002). Under the AEDPA, a federal
court may grant habeas relief only if the state court’s
adjudication of a habeas petitioner’s constitutional
claims was contrary to, or involved an unreasonable
application of, clearly established federal law, or was
based on an unreasonable determination of the facts.
28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 376-
77 (2000). A state court decision rests on an “unrea-
sonable application” of clearly established federal law if
it lies “well outside the boundaries of permissible differ-
ences of opinion.” Jackson v. Frank, 348 F.3d 658, 662
(7th Cir. 2003); see also Williams, 529 U.S. at 407-08.
Again, Watson claims that he is entitled to habeas
relief because the assistance of counsel he received at
trial and on direct appeal was constitutionally defective.
The Sixth Amendment guarantees criminal defendants
the right to effective assistance of counsel. See Hill
v. Lockhart, 474 U.S. 52, 57 (1985); Strickland v. Washington,
466 U.S. 668, 684-85 (1984) (“The Sixth Amendment recog-
nizes the right to the assistance of counsel because it
envisions counsel’s playing a role that is critical to the
6 No. 07-3602
ability of the adversarial system to produce just results.
An accused is entitled to be assisted by an attorney,
whether retained or appointed, who plays the role neces-
sary to ensure that the trial is fair.”). To prevail on an
ineffective assistance claim, a petitioner must prove
both (1) that his counsel’s performance was objectively
unreasonable and (2) that he suffered prejudice as a
result. See Strickland, 466 U.S. at 687; McDowell v. Kingston,
497 F.3d 757, 761 (7th Cir. 2007). We may address these
issues in whichever order is most expedient. As the
Supreme Court explained, “[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often be so, that
course should be followed.” Strickland, 466 U.S. at 697.
Watson argues that (1) his trial counsel was constitu-
tionally ineffective for failing to convey the information
he needed to properly evaluate the State’s plea offer,
and (2) both trial and appellate counsel were ineffective
for failing to make an issue of the fact that he was
charged with attempted murder, but the jury instruc-
tions that were given at trial did not define “murder.”
A.
The Appellate Court of Illinois rejected Watson’s argu-
ment that he was denied effective assistance when his
attorney gave him inaccurate advice in connection with
the State’s plea offer because it found that Watson could
not show that he was prejudiced by counsel’s advise.
We do not think that this finding was unreasonable.
No. 07-3602 7
When a defendant considers the government’s offer of
a plea agreement, “a reasonably competent counsel will
attempt to learn all of the facts of the case and to make
an estimate of a likely sentence.” United States v. Barnes,
83 F.3d 934, 939 (7th Cir. 1996) (citing Hill, 474 U.S. at 56-
60). In the present case, the information Watson’s at-
torney conveyed in connection with the State’s plea
offer was not altogether accurate. Watson was charged
with multiple counts of attempted murder and ag-
gravated battery. These are “Class X” felonies under
Illinois law, the highest class of felony. See 720 Ill. Comp.
Stat. §§ 5/8-4(c)(1), 5/12-4.2(b). Accordingly, Watson
faced possible mandatory consecutive sentences if found
guilty of multiple crimes, and his maximum possible
sentence was 120 years’ imprisonment. See 730 Ill. Comp.
Stat. §§ 5/5-8-2(a)(2), 5/5-8-4(a), 5-8-4(c)(2). It is undis-
puted that Watson’s trial counsel did not advise him
of this. Instead, Watson was told that his maximum
possible sentence was 60 years’ imprisonment.
The Appellate Court of Illinois found that it was objec-
tively unreasonable for counsel to underestimate the
possible sentence his client was facing, and we agree.
See Osagiede v. United States, 543 F.3d 399, 409 (7th Cir.
2008) (“All lawyers that represent criminal defendants
are expected to know the laws applicable to their
client’s defense.”). Be that as it may, deficient advice
relating to a defendant’s possible criminal sentence
will violate the defendant’s Sixth Amendment rights
only if this advice was prejudicial. To show that he was
prejudiced during plea bargaining, Watson must show
that his counsel’s advice was “a decisive factor” in his
8 No. 07-3602
decision to reject the State’s plea offer. Barnes, 83 F.3d at
940 (emphasis added).
The Appellate Court found that counsel’s advice was
not the cause of Watson’s decision to reject the plea
offer. The court noted that Watson testified in his post-
conviction evidentiary hearing that he would have consid-
ered the State’s plea offer if he had been properly advised
as to his maximum sentence. The court also noted that
Watson’s counsel submitted an affidavit stating that
Watson was determined to reject any plea offer. Based
on this evidence, the court found that Watson’s rejection
of the plea offer was “based primarily on his belief or
hope that the jury would find him guilty of a lesser
charge.” We must defer to this finding unless it was
“based on an unreasonable determination of the facts
in light of the evidence presented in the State court pro-
ceeding.” 28 U.S.C. § 2254(d)(2); see also Collier v. Davis,
301 F.3d 843, 848 (7th Cir. 2002). Based on the evidence
presented at the evidentiary hearing, it was reasonable
to believe Watson did not reject the plea offer because
of counsel’s error about the sentence. Therefore, we
must defer to the Appellate Court.
B.
Watson also argues that his trial and appellate
counsel were constitutionally ineffective for failing to
challenge the jury instruction for the attempted murder
charge. The parties agree that the jury was instructed,
inter alia, that:
No. 07-3602 9
A person commits the offense of Attempt (First
Degree Murder) when he, with intent to commit the
offense of First Degree Murder, does any act which
constitutes a substantial step toward the commission
of the offense of First Degree Murder.5
This instruction, while less than pellucid, is not obviously
problematic on its face. However, a Committee Note to
the Pattern Instructions that were in effect at the time of
the trial required the court to “give an instruction that
defines the offense that is the alleged subject of [the
crime of] attempt.” See Ill. Pattern Instr.—Crim. Former
6.05 (Committee Note) (2d ed. 1981). Thus, the court was
required to instruct the jury that “attempted murder”
involves the intent to kill; instead, the court instructed
the jury that “attempted murder” involves the intent to
commit First Degree Murder.
We are unpersuaded that this minor discrepancy could
have influenced the outcome of the trial. As a threshold
matter, it is a close question whether the Appellate
Court addressed this issue. What the court said was
Defendant also claims that on direct appeal he was
denied effective assistance of appellate counsel when
counsel failed to identify the ineffective assistance of
trial counsel for . . . failing to object to improper jury
5
The actual jury instructions were not included in the record
on appeal. However, the parties agree that the trial court gave
this instruction, which follows Illinois’ generic pattern instruc-
tion for “attempt” that was in place at the time. See Ill. Pattern
Instr.—Crim. Former 6.05 (2d ed. 1981).
10 No. 07-3602
instructions. . . . We have weighed the merits of the
ineffective assistance of trial counsel issues, which
were fully briefed by counsel appointed in these
proceedings. We do not believe these issues were so
patently meritorious that the failure of the appellate
counsel to raise the issue on direct appeal constitutes
incompetence.
(Internal quotation marks omitted.) On its face, this
remark disposes only of Watson’s argument regarding the
effectiveness of his appellate counsel. However, the
appellate court also stated that it considered Watson’s
challenge to trial counsel’s performance, and it quite
clearly implies that it rejects this challenge on the merits.
After all, Watson’s argument was that his trial counsel’s
performance was constitutionally deficient: that counsel’s
failure to object to the jury instructions was objectively
unreasonable and it is reasonably likely that the out-
come of the trial would have been different but for coun-
sel’s errors. If Watson had managed to persuade the
court of all this, then the court would have found that
Watson had a “patently meritorious” challenge to the
jury instructions on direct appeal. Put otherwise, if the
argument Watson wanted his appellate counsel to make
on direct appeal was not patently meritorious, then
Watson quite clearly is not entitled to habeas relief on
the basis of this argument. (The situation might be dif-
ferent if Watson’s habeas petition were based on newly
discovered evidence, and thus the ineffectiveness argu-
ment he made in his habeas petition was different from
the one he made—or sought to make—on direct appeal.
This was not the case here.)
No. 07-3602 11
Of course, the court did not give any reason for re-
jecting Watson’s claims pertaining to his trial counsel. (It
hardly gave any reason for rejecting Watson’s claims
pertaining to his appellate counsel.) But even summary
dispositions are entitled to deference under the AEDPA.
See Muth v. Frank, 412 F.3d 808, 815 (7th Cir. 2005). Here,
the court’s remarks logically entail that it had rejected all
of Watson’s claims based on the jury instructions, not
just some of them. We must affirm unless we find that
this rejection was not within the range of defensible
positions. Mendiola v. Schomig, 224 F.3d 589, 591-92 (7th
Cir. 2000).
Even if there were no state court decision to which
we owe deference, however, we would still find that
Watson has not shown he was prejudiced by the trial
court’s failure to define “murder.” The mere possibility
that an instruction could conceivably be misunder-
stood does not render the instruction, or a conviction
based on the instruction, unconstitutional. See Holman v.
Gilmore, 126 F.3d 876, 885 (7th Cir. 1997). Of course, Watson
does not argue that the jury instruction standing alone
violated his constitutional rights.6 In principle, a trial
error without inherent constitutional significance—such
as a minor error in the jury instructions—could con-
stitute a violation of clearly established federal law if
6
Watson did make this argument below, and the district
court found that he had procedurally defaulted on this claim.
He does not challenge this aspect of the district court’s deci-
sion on appeal.
12 No. 07-3602
the error implicates a criminal defendant’s Sixth Amend-
ment rights. But again, to show that this has happened,
the petitioner must show prejudice. Strickland, 466 U.S. at
693 (“It is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the
proceeding.”). As a general matter, we imagine that it
will be no easier—and may well be a great deal harder—to
show that a jury instruction was prejudicial than it
would be to show that the substance of the instruction
violated the defendant’s constitutional rights.
At any rate, under the facts of the present case, we are
quite convinced that Watson has not shown that he was
prejudiced by the jury instruction. Again, the jury was
instructed that “attempted murder” involves the intent to
murder. Under Illinois law, they should have been in-
structed that it involves the intent to kill. But “murder” is
not a legal term of art; it can safely be presumed that
the jury understood that murder involves killing. To
imagine a jury that would not have understood this is
to imagine a jury that is incapable of understanding
English.
Moreover, there is some indication that this particular
jury understood perfectly well that “murder” involves
killing. Although the record does not contain the original
charging documents, Watson’s post-conviction briefs
indicate that he was charged with four counts of at-
tempted murder and was found guilty of three. In the
case of Terrence Lindsey—Pearl’s daughter Dormiletha’s
boyfriend—the jury convicted Watson of the lesser
charge of reckless conduct. This is not surprising: the
No. 07-3602 13
evidence tended to show that Lindsey was shot as he
attempted to pull Dormiletha out of Watson’s line of fire.
In other words, the evidence was that Lindsey was
unique among Watson’s victims insofar as Watson seems
not to have specifically targeted Lindsey. That the jury
made distinctions between Watson’s victims, returning
a guilty verdict for attempted murder only where there
was some evidence that Watson specifically intended to
kill, is strong evidence that the jury understood that
murder involves killing.
There are at least two additional reasons Watson cannot
show that he was prejudiced by the jury instructions.
First, and notwithstanding Watson’s protests to the
contrary, the evidence that Watson intended to kill
Pearl, Dormiletha and Nelson was considerable. Strong
evidence of guilt can undermine a petitioner’s claim that
he was prejudiced by his attorney’s errors. See Connor v.
McBride, 375 F.3d 643, 665-66 (7th Cir. 2004); Harding v.
Sternes, 380 F.3d 1034, 1045-46 (7th Cir. 2004). Here, the
evidence showed that Watson fired at his victims repeat-
edly and from a few feet away. Further, while two of
Watson’s victims were struck in the arm, there was
some evidence that this was in spite of Watson’s best
efforts: Nelson was hit as he was attempting to flee, and
Dormiletha was hit as Lindsey was attempting to pull
her from Watson’s line of fire. The strong evidence of
Watson’s guilt vitiates his claim that he suffered prej-
udice as a result of counsel’s failure to object to the jury
instruction.
A final reason Watson cannot show that he was preju-
diced by the jury instructions is that his sentence
14 No. 07-3602
would have been exactly the same even without the
attempted murder convictions. Watson was convicted of
three separate counts of attempted murder and three
separate counts of aggravated battery. He was given
identical, concurrent sentences for each attempted
murder and aggravated battery conviction. That is to say,
he was given separate 30-year sentences for his crimes
against Pearl, separate 15-year sentences for his crimes
against Dormiletha and separate 15-year sentences for
his crimes against Nelson. Because Watson was given
two identical, concurrent sentences for his crimes
against each victim, and because the set of sentences
for each victim was ordered to run consecutively, then
even if Watson had been acquitted of all attempted
murder charges, his aggregate sentence would have
been unchanged.
In short, the state court’s remarks imply that it reason-
ably rejected Watson’s ineffectiveness claims, including
his claim based on his trial counsel’s failure to object to
the jury instructions. To the extent, however, that any
uncertainty remains concerning whether the state court
actually resolved this issue, we hold that there is no
evidence that Watson was prejudiced by the minor dis-
crepancies in the jury instructions, and considerable
evidence that he was not.
III.
To prove ineffective assistance of counsel, a habeas
petitioner must show prejudice. Here, all the evidence
indicates that Watson was not prejudiced by either of the
No. 07-3602 15
errors that are at issue in this case. The judgment of the
district court is
A FFIRMED.
3-30-09