uncontrollably and felt a sense of “complete and utter loss” during trial, he felt some sense of relicf after
the trial.

Defense counsel Ek] and Paul Morcshi testified that they observed nothing in Rodgers’ behavior
that indicated he was unfit for trial, was unable to understand what was going on, or could not participate
in his defense. To the contrary, Eki stated that on at least five occasions, he and Rodgers discussed the
incident giving rise to the charges against him, and on each occasion, Rodgers’ version of events was
consistent and credible. EkI further explained that he and Rodgers discussed plea negotiations and
options for trial. Ekl believed that Rodgers understood those discussions. Moreshi similarly testified
that he had no unusual communication problems with Rodgers, who appeared to understand the defense
strategy of self-defense and second-degree murder. Belva Randazzo, a nurse and Rodgers’ sister,
testified that Rodgers appeared to be “very depressed” before trial, and appeared to smile
inappropriately, gaze into space, and to be unkempt during trial. David Kunz, a friend of Rodgers,
testified that before trial, Rodgers' behavior was “very unlike” him and that Rodgers was frequently
shaking and on the verge of tears.

Robert Huiner, lead prosecutor in Rodgers’ case, testified that Rodgers appeared to understand
the questions posed to him and answered those questions appropriately during his trial testimony.
Huincr averred that Rodgers’ testimony was consistent with a defense of second-degree murder. Huiner
stated that nothing during the trial led him to believe that Rodgers did not understand what was going
on or that he could not cooperate with his attomey. Joseph Solon, who assisted in the prosecution of
Rodgers, testified regarding his belief that Rodgers was fit to stand trial. At the conclusion of the fitness

hearing, the Circuit Court found that Rodgers he had been fit for trial and sentencing in 1992.? As such,

*The Circuit Court stated that if the fitness hcaring had been held in 1991 or 1992, it would
have considered only the evidence provided by the expert witnesses, However, it also considered all
of the evidence presented during the hearing. The court drew the same conclusion under each

4


Schwarz’s testimony, along with that of the other witnesses testifying on Rodgers’ behalf, did not sway
the Circuit Court. Indeed, Rodgers conceded that he knew the role of the judge, prosecutors, defense
counsel, jury, and witnesses at his trial. He was also aware of the nature of the charge against him, the
possible penalties, and the defense strategy. Rodgers said that his emotional problems did not prevent
him from testifying consistent with his attomeys' directions. Rodgers' trial attorneys, Ekl and Moreshi
testified that they observed nothing in Rodgers’ behavior indicating that he was unfit for trial, was unable
to understand what was going on, or could not participate in his defense. The Circuit Court's conclusion
that Rodgers was fit for trial and sentencing in 1992 is not unreasonable in light of the testimony
presented at the retrospective fitness hearing. We therefore defer to the trial court's holding, and find
that Rodgers’ due process rights were not violated.
2. Ineffective Assistance of Counsel

Rodgers argues that his trial counsel was constitutionally ineffective for their failure to request
a fitness hearing to determine whether Rodgers was fit for trial and sentencing. Rodgers further contends
that his appellate counsel was constitutionally ineffective for failing to raise the issue on direct appeal.
To establish that he was deprived of effective assistance of counsel, Rodgers must make two showings.
See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). First,
Rodgers must demonstrate that his counsel's performance was deficient. See id. This “performance”
prong requires Rodgers to show that his “counsel's representation fell below an objective standard of
reasonableness.” Jd. 446 U.S, at 687-88, 104 S.Ct. at 2064, Our review of the performance of Rodgers’
counsel is highly deferential. /d. 446 U.S, at 698, 104 S.Ct. at 2065.

Second, Rodgers must demonstrate that his counsel's deficient performance prejudiced his
defense. See id. 466 U.S. at 687, 104 S.Ct. at 2064. This “prejudice” prong requires Rodgers to “show

that there is a reasonable probability that, but for [his] counsel's unprofessional errors, the result of the



where the state court's adjudication of the claim “was based on an unreasonable determination of the
facts in light of the evidence presented to the State court proceeding.” /d. at §2254(d)(2).

To obtain a writ, a “petitioner first must show that the Supreme Court has 'clearly established’
the propositions essential to [his] position.” Schaff'v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999). The
petitioner “must next show that the state court's decision was either ‘contrary to’ clearly established
Supreme Court casc law or, alternatively, was an ‘unreasonable application’ of Supreme Court case law.”
Id. The “contrary to” standard, as clarified by the United States Supreme Court in Williams y, Taylor,
529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), applies if the “state court arrived] at a
conclusion opposite to that reached by this Couri on a question of law” or if the state court decided a
case differently than the Supreme Court has on a sct of materially indistinguishable facts. Jd. at 529 U.S.
at 405, 120 5.Ct. at 1519. The “unreasonable application” standard has becn clarified to include when
the state court “identifie{d] the correct governing legal rule from the Court's cases but unreasonably
applie[d] it to the facts of the particular state prisoncr's case.” Jd. at 529 U.S. 407, 120 S.Ct. at 1520.
However, if the state court's decision was “reasonable, that is at least minimally consistent with the facts
and circumstances of the case, we shall uphold the state court ruling, even if it [wa]s not well reasoned
or fully reasoned, or even if it ha{d] one of several equally plausible outcomes.” Schaff, 190 F.3d at 522
(internal quotations and internal citations omitted).

Before a court can review a habcas petition on the merits, it must conclude that the petitioner
exhausted all available state remedies, and that the petitioner did not procedurally default his claims in
state court. See Moleterno v. Nelson, 114 F.3d 629, 633-34 (7th Cir. 1997), To avoid procedural

default, a state prisoner must fully and fairly present his constitutional claims in state court. See

Wilkinson v. Cowan, 231 F.3d 347, 350 (7th Cir. 2000). The parties agree that Rodgers exhausted all



the Circuit Court found that Rodgers failed to prove by a reasonable probability that he would have been
found unfit at trial and sentencing if a pretrial fitness hearing had been conducted. Accordingly, the
court denied Rodgers’ amended post-conviction petition, finding that Rodgers was not prejudiced by his
trial counsel's failure to request a hearing or by his appellate counsel's failure to raise the issue on direct
appeal.

Rodgers appealed to the Illinois Appellate Court, arguing that the retrospective fitness hearing
violated his state and federal due process rights. He also tcasserted his ineffective assistance of counsel
claims, On June 5, 2002, the Appellate Court affirmed the denial of Rodgers' amended post-conviction
petition. See Resp. Ex. F, People v. Rodgers, No. 2-00-1483. Rodgers thereafter filed a petition for
leave to appeal to the Illinois Supreme Court. The petition was denied on October 2, 2002. See Resp.
Ex. H, People v, Rodgers, No. 94319. Rodgers filed his petition for writ of habeas corpus with this
Court on December 9, 2002. Rodgers’ petition scts forth two arguments, First, Rodgers contends that
the retrospective fitness hearing violated his federal due process rights. Second, Rodgers argues that his
trial counsel and appellate counsel were incffective.

i. ANALYSIS

A, Standard of Review

Section 2254, as amended, empowers a district court to entertain a petition for writ of habeas
corpus from a person in custody pursuant to the judgment of a state court on the ground that he is in
custody in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. §2254(a).
Habeas relief may be pranted if the adjudication of the claim by the state court “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.” Jd. at §2254(d)(1). Relief may also be granted

scenario ~ that Rodgers was fit for trial and sentencing in 1992.

5


during his trial.” Balfour v. Haws, 892 F.2d 556, 562 (7th Cir. 1989). In reviewing a state trial court's
finding of fitness in the context of a habeas corpus petition, we presume the trial court's ruling to be
correct. See Maggio v. Fulford, 462 U.S. 111, 116-118, 103 S.Ct. 2261, 2263-65, 76 L.Ed.2d 794 (1983)
(per curiam).

In this case, the Circuit Court, in a retrospective fitness hearing, found Rodgers fit to stand trial.
We agrce with the trial court's finding. Dr, Rossiter, the State’s expert witness, testificd that, in his
opinion, Rodgers was fit for trial and sentencing. Dr. Rossiter’s interviews and review of records
indicated that it was “questionable” whether Rodgers suffered from a diagnosable mental disorder at the
time of trial in January 1992. Although Rodgers was diagnosed with an adjustment disorder when
initially incarcerated in August 1991, tranquilizers and anti-depressants remitted symptoms of the
disorder by October 1991. Rodgers described himself to Dr. Rossiter as having been very emotionally
upset, unable to concentrate and focus, unable to comprehend what was going on in his lifc, mistaking
dreams for reality, mistaking reality for dreams, and having suffered from frequent crying spells during
his incarceration in the DuPage County Jail. Dr. Rossiter testified that he believed Rodgers was
exagecrating his symptoms to convince Dr. Rossiter that he was in great mental distress and was
incapable of cooperating with his attorneys or understanding what was going on in the legal proceedings
against him.

Dr. Schwarz, Rodgers' expert witness, countered that, in his opinion, Rodgers was unfit for trial
and sentencing.* However, Dr. Schwarz admitted that Rodgers appeared to understand the nature and
purpose of the proceeding against him on a cognitive level. Furthermore, Dr. Schwarz testified that it

appeared as if Rodgers was able to testify rationally during trial and converse with his attomeys. Dr.

“Even if Dr. Schwarz’s testimony were viewed as totally contrary to that of Dr. Rossiter, the
credibility and believability of “dueling experts” was a matter properly to be resolved in the state
trial court.



Minute Order Fim (0x97)

: United States District Court, Northern District of Iinois
SY
se Maglorate Jue Marvin Aspen “Than Asie Sage
CASE NUMBER 02 C 8888 DATE 6/6/2003
CASE Richard K, Rodgers vs. Warden Jerry Sternes
TITLE

of the motion being presented.]

[in the following box (a) indicate the party filing the motion, e.g. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

corpus is denied. Rodgers’ motion to sirike (12-1) respondent’s reply is granted.

(i) [For further detail scc order attached to the original minute order.)

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Mation” box above.]

(2) a Brief in support of motion due.

(3) Oo Answer brief to motion due___. Reply to answer briefdue___.

(4) im] Ruling/Hearingon___ssetfor at

(5) o Status hearing[held/continued to) {set for/re-set for] on__—sset for at.

(6) im Pretrial conference[held/continued to] [set for/re-set for}on | setfor_ 9 at.

(7) Bo ‘Yrial[set for/re-set for}on at

(8) im [Bench/Jury trial] [Hearing] held/continued to_ ___at

(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
QFRcP4(m) =O Local Rule 41.1 O) FRCP41(a)(1) OO FRCP41(a)(2).

(0) [Other docket entry) Enter Memorandum Opinion and Order: Rodgers’ petition for writ of habeas

No notices required, advised int open court.

No notices required,
jo notices requ number of nulives

Document
‘Number

J | Nolives mailed by judge's statf. JUN 1 0 2003

Notified counsel by telephone, _ nue doskereds 1"

Docketing 10 mail notices.

v | Mail AQ 450 form,

1unod 1aMtsig-s:
wea? $4

Copy to judge/magistrate judge.

; courtroom 05:8 WY 6- RIF EU date mited naticy
Gl. deputy’s Gu
initials -

oping] J

central Clerk's Office mailing deputy iniiais



mercly because a fitness hearing was not held before trial. See Eddmonds, 93 F.3d at 1317, Indeed, the
denial of a fitness hearing can be harmless. See id. In order to determine whether Rodgers was
prejudiced by the failure of his trial counsel to request a fitness hearing or by his appellate counsel's
failure to raise the issue on direct appeal, we must determine whether Rodgers was in fact unfit to stand
trial. See id. As sct forth above, Rodgers was fit for trial. Consequently, Rodgers’ defense was not
prejudiced by the failure of his trial counsel to request a fitness hearing prior to trial or by his appellate
counsel's failure to raise the issue on direct appeal. Rodgers’ ineffective assistance of counscl claims
therefore fail.

TH, INC. ION

For the foregoing reasons, Rodgers' petition for writ of habeas corpus is denied. It is so ordered.

“ VG I
MARVIN E. ASPEN

United States District Judge »-

Dated b/ i / 0 3,

11



proceeding would have been different.” Jd. 466 U.S. at 694, 104 S.Ct. at 2068. We may presume
prejudice in some situations. /d. 466 U.S. at 692, 104 S.Ct. at 2067 (stating that prejudice is presumed
where counsel was constructively denied, where the state interfered with counsel's assistance, and where
counsel had a conflict of interest). Absent such a presumption, however, Rodgers “must affirmatively
prove prejudice.” Jd. 466 U.S, at 693, 104 S.Ct. at 2067. If Rodgers fails to establish onc of the two
prongs, we may deny his petition without considering the other prong. See Hough v. Anderson, 272 F.3d
878, 890 (7th Cir. 2001).

We address the prejudice prong of the Strickland test first. Although Rodgers asks this Court
to presume prejudice in this case, he does not provide us with any United States Supreme Court case
applying the presumed prejudice standard where counsel failed to request a fitness hearing or where
counsel failed to raise the issuc on direct appeal. Instead, he relies on Roe v, Flores-Ortega, 528 U.S.
470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). In Flores-Ortega, the Supreme Court applied the
presumed prejudice standard where the defendant's lawyer failed to file a notice of appeal pursuant to
the defendant's request. See id. 528 U.S. al 484, 120 S.Ct. at 1038-39. Tho Court emphasized that the
lawyer's failure to file the notice resulted in the defendant's forfeiture of a judicial proceeding. See id.
Rodgers contends that the failure of his trial counsel to request a fitness hearing before trial resulted in
his forfeiture of a judicial proceeding. We decline to extend the presumed prejudice standard set forth
in Flores-Ortega to the case at hand. Even if we were to equate the forfeiture of a pre-trial fitness
hearing with the forfeiture of a post-trial appeal, Rodgers did not experience the forfeiture of a fitness
hearing. In fact, the Circuit Court conducted a retrospective fitness hearing to determine if he was fit
for trial and sentencing in 1992.

Because the presumed prejudice standard does not apply, Rodgers must demonstrate actual

prejudice. A lawyer's failure to request a fitness hearing does not necessarily prejudice a defendant

10



state remedies available to him. The partics also agree that Rodgers fully and fairly presented his federal
constitutional claims in state court.

B. Habeas Claims

1 Due Process

Rodgers contends that the retrospective fitness hearing violated his federal due process rights
because it placed the burden on him under People v. Mitchell, 727 N.E.2d 254, 268 (II!, 2000), to prove
by a reasonable probability that the he would have been found unfit for trial if'a fitness hearing had been
held prior to trial. If Rodgers' counsel had requested a fitness hearing before trial in 1992, the State
would have had the burden to prove by a preponderance of the evidence that Rodgers was fit to stand
trial. See 735 ILCS 5/104-21(a). The issue before us is not whether Rodgers should have had to carry
the burden of proof at his retrospective fitness hearing. Indeed, a fitness hearing “is not an end in itself”
Eddmonds v. Peters, 93 F.3d 1307, 1316 (7th Cir. 1996). Instead, the issue before us is whether
Rodgers was fit to stand trial. See id. at 1317.

A criminal defendant has a due process right not be tried if he is unable to assist in his own
defense. See Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321 (1993). A
defendant is competent to stand trial if he “has sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding — and whether he has a rational as well as factual
understanding of the proceedings against him,” Dusky v. United States, 362 U.S, 402, 80 S.Ct. 788, 4
L.Ed.2d 824 (1960) (per curiam). Post-trial challenges regarding a defendant's fitness for trial “should
be based on evidence of [his] irrational behavior, his demeanor at trial, and any prior medical opinion.”
United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1011 (7th Cir. 1984). The defendant must
present facts “sufficient to positively, unequivocally and clearly generate a real, substantial and

legitimate doubt as to [his] mental capacity to meaningfully participate and cooperate with counsel



potential, concentration, judgment, or memory lo indicate that Rodgers was psychotic. Furthermore, the
records do not show that Rodgers was delusional or suffering from hallucinations.

During an interview, Rodgers described himself to Dr, Rossiter as having been very emotionally
upset, unable to concentrate and focus, unable to comprehend what was going on in his life, mistaking
dreams for reality, mistaking reality for dreams, and having suffered from frequent spells of crying
during his incarceration in the DuPage County Jail. Dr. Rossiter said that Rodgers' description of his
condition was not supported by the jail records, which contain no indication of mental or emotional
illness compatible with Rodgers' alleged conditions. The symptoms Rodgers described would have been
caused by mental conditions resulting in disorganized behavior and speech, agitation, and confusion that
would have been casily observed and documented in jail records. Because of the disparity between
Rodgers’ description of his condition and his jail treatment records, Dr. Rossiter testified that he believed
Rodgers was cxaggerating his symptoms to convince Dr. Rossiter that he was in great mental distress
and was incapable of cooperating with his attorneys or understanding what was going on in the legal
proceedings against him.

Rodgers testified that he was given medication shortly after his arrival at the DuPage County Jail
in 1991, After taking the medication, Rodgers stated that he had difficulty separating dreams and reality,
but recalled being placed on suicide watch on several occasions, Rodgers further stated that he did not
understand his pretrial proceedings and had difficulty concentrating when meeting with lead defense
counsel Terry Ekl in jail prior to trial. However, Rodgers admitted that he knew the role of the judge,
prosecutors, defense counsel, jury, and witnesses. He was also aware of the nature of the charge against
him, the possible penalties, and the defense strategy. Rodgers said that his emotional problems did not

prevent him from testifying consistent with the dircctions of his attorney. Although Rodgers cried



counsel claims pursuant to People v. Mitchell, 727 N.E.2d 254, 268 (Ill. 2000), which requires the
petilioner to prove by a reasonable probability that the hc would have been found unfit for trial if a
fitness hearing had been held.

Dr. Marvin Schwarz, Rodgers’ expert witness, testified that, in his opinion, Rodgers was unfit
for trial and sentencing. Dr. Schwarz stated that Rodgers expericnced a significant adjustment disorder
with features of mixed atfcct, depression and severe anxiety during his incarceration in the DuPage
County Jail. Rodgers! severe anxiety was treated with the anti-anxiety medications Ativan and Buspar,
and the anti-depressant Imipramic throughout his incarceration. Although jail records from September
10, 2001 and September f1, 2001 indicate that Rodgers suffered from an altered thought process, crying
spells, an inability to control his emotions, and poor concentration, Dr. Schwarz found no records
indicating that he was “adequately sufficiently stabilized for trial.” On cross-cxamination, Dr. Schwarz
conceded that Rodgers appeared to understand the nature and purpose of the proceeding against him on
a cognitive level. However, Dr. Schwarz said that Rodgers’ illness affected his judgment, preventing
him from appreciating the meaning of the proceedings on a emotional level, responding appropriately,
and rationally assisting his counsel, Dr, Schwarz concluded that he still believed Rodgers to have been
unfit even though it appeared that he could testify rationally during trial and converse with his attomeys.

Dr. Lyle Rossiter, the State's expert witness, testified that, in his opinion, Rodgers was fit for trial
and sentencing. Dr. Rossiter explaincd that his interviews and review of records indicated that it was
“questionable” whether Rodgers suffered from a diagnosable mental disorder at the time of trial in
January 1992. Although Rodgers was diagnosed with an adjustment disorder when initially incarccrated
in August 1991, tranquilizers and anti-depressants remitted symptoms of the disorder by October 1991.

Jail records indicate that Rodgcrs was “generally stable,” and experienced no unexpected fluctuations

in his anxiety level after October 1991. The records do not reflect the requisite disruption of thought,



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RICHARD K, RODGERS, )
Petitioner, ;
v. ) Case No. 02 C 8888
WARDEN JERRY STERNES, }
Respondent. }

DOCKETED

JUN 1 0 2003
MEMORANDUM OPINII

MARVIN E. ASPEN, District Judge:

Petitioner, Richard K. Rodgers, is currently incarcerated at the Dixon Correctional Center in
Dixon, Illinois, wherc he is in the custody of Respondent Warden Jerry Sternes. Currently before us is
Rodgers’ petition for writ of habeas corpus.' For the following reasons, we deny Rodgers’ petition,

L BACKGROUND’

Richard K. Rodgers was convicted of first degree murder and home invasion following a jury
trial in January 1992. His conviction and 45-year sentence of imprisonment were affirmed on direct
appeal. Rodgers filed a petition for post-conviction rclief on September 9, 1996, Rodgers' amended
petition alleged that his trial counsel was ineffective for failing to request a fitness hearing in January
1992. He further alleged that his appellate counsel was inetfective for failing to raise the issue on direct
appeal. In December 2000, the Circuit Court found that Rodgers had been taking psychotropic
medication at the time of his trial and was thercfore entitled to a retrospective fitness hearing under 725

ILCS 5/104-21(a). The Circuit Court stated that it was considering Rodgers' ineffective assistance of

‘Also before us is Rodgers' motion to strike Respondent's Reply, which refers to the habeas
petition of Eddie Baines, not that of Richard K. Rodgers. We grant Rodgers’ motion to strike
Respondent's Reply as non-responsive.

The facts containcd herein arc taken from the parties’ filings.

|4