Westray v. Brookhart

JAMES WESTRAY, # N-96339, Petitioner, v. D.D. BROOKHART, Respondent.

Case No. 19-cv-728-NJR

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

September 14, 2020

MEMORANDUM AND ORDER¹

ROSENSTENGEL, Chief Judge:

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, he filed 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 the sentencing hearing, and his post-plea counsel failed to raise the issue of plea counsel'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 did not respond to that motion.

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 been committed during a robbery.

At the hearing on aggravation and mitigation, the State presented evidence on Westray's participation in 1989 at the age of 18 in 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 sentencingproceedings, 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. The abuse 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 murder case. 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 amounted to 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 admonishedunder 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 was properly 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 documenting abuse 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,³ the court found it "is unable to offer effectiverelief 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 SECTION 2254 PETITION

This habeas petition is subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 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 pro...