UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Alberto Zavala (R53809), )

)

Petitioner, )

) Case No. 20 C 2787

v. )

) Hon. Rebecca R. Pallmeyer

)

David Gomez, Warden, )

Stateville Correctional Center, )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner Alberto Zavala, a prisoner at the Stateville Correctional Center, brings this pro 

se habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 2006 murder and home 

invasion convictions from the Circuit Court of Cook County. The petition alleges: (1) ineffective 

assistance of trial counsel during pretrial plea negotiations; and, (2) ineffective assistance of 

postconviction counsel along with a related challenge to the postconviction process. Petitioner 

also asks the court to appoint counsel and allow him to pursue discovery. For the reasons 

explained here, the motions for attorney representation and for discovery are denied. The court 

denies the § 2254 petition on its merits, and declines to issue a certificate of appealability.

I. Background

A. Lack of State Trial Court Record and Transcript

In support of his answer to the petition, Respondent has submitted the state court 

appellate briefs and decisions, but has not provided the court with the state trial court record or 

transcripts. (Dkt. 21.) In an August 31, 2020 filing, Respondent explained these materials are 

“currently unavailable due to procedures put in place during the COVID-19 pandemic,” but will be 

submitted once they are accessible. (Dkt. 21, pg. 1, n.1.) As set forth in the rules, a respondent 

is expected to submit the “parts of the transcripts that the Respondent considers relevant” in 

support of the answer. Rule 5(c), Rules Governing Section 2254 Cases in the United States 

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District Courts. When a transcript is unavailable, the respondent may submit a narrative 

summary of the evidence, and the court may order the respondent to submit any supplemental 

transcripts deemed necessary. As the Court of Appeals has observed, however, “[w]hile the 

review of a state court transcript is occasionally necessary in habeas cases, it is certainly not 

required and is, in fact, quite rare . . . . [T]he decision of whether transcripts are necessary is left 

to the sound discretion of the district court.” Simental v. Matrisciano, 363 F.3d 607, 612 (7th Cir. 

2004). In this case, the court concludes the materials submitted by Respondent are sufficient to 

allow for resolution of the petition. Respondent did not submit a separate narrative summary, 

but did submit the state appellate court opinions, which have a presumption of correctness, 28 

U.S.C § 2254(e)(1); Tharpe v. Sellers, 138 S. Ct. 545, 546 (2018); Hartsfield v. Dorethy, 949 F.3d 

307, 309 n.1 (7th Cir. 2020) (citations omitted), and provide the necessary narrative summary of 

the relevant evidence. 

Petitioner, who has the burden of rebutting through clear and convincing evidence the 

presumption afforded to the factual findings in the state court opinions, does not dispute the 

factual information set forth in the state court decisions. His disagreement is with the state court’s 

legal conclusions. Although it is good practice for the full state court record to be before the court

when it reviews the habeas corpus petition, Thompson v. Battaglia, 458 F.3d 614, 617 (7th Cir. 

2006), the court is within its discretion to rely upon the state appellate court opinions and will do 

so in this case. Simental, 363 F.3d at 612. 

B. Facts of Petitioner’s Convictions

Petitioner’s murder and home invasion convictions arose out of an $18,000 debt owed to 

him by Charles Conrick. People v. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, 

at *1 (Ill. App. Ct. Sept. 28, 2018). Petitioner asked Conrick to identify someone who could be 

robbed in order to reduce the debt. Id. Conrick named the murder victim, Phillip McGovern, 

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and told Petitioner there were cash and drugs in McGovern’s home. Id. Petitioner contacted 

Robert Orosco, who assembled a three-man team to carry out the robbery. Id. 

On October 2, 2001, Petitioner and Orosco drove past McGovern’s home to confirm he 

was there. Id. They then drove past the home, down the street to where the robbers were 

waiting in another car, signaled those robbers to proceed, and then left the scene. Id. One of 

the robbers knocked on the victim’s front door posing as a pizza delivery man. People v. Zavala, 

No. 1-07-0287 (Ill. App. Ct. May 22, 2008) (Dkt. 21-5, pg. 12.) The group forced their way into 

the home where a gun fight ensued between McGovern’s fiancé and the offenders. Id. 

McGovern was killed during the gun battle. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 

4760370, at *1.

The police arrested one of the assailants after his fingerprints were found on the pizza 

delivery bag left at the crime scene. (Dkt. 21-5, pg. 12.) That offender gave a police statement 

that identified others involved. Id. The victim’s fiancé identified the arrested man in a police 

lineup. Id. Petitioner was arrested and gave a statement to the police in which he admitted to 

organizing the home invasion. Id. Although he did not see any guns during the evening of the 

home invasion, and guns were not discussed with the robbers during planning, Petitioner admitted 

in his police statement that he understood that the robbers would carry guns in order to force their 

way into the home. Id. at 12-13. 

Ultimately, two of the robbers pleaded guilty; the third proceeded to trial and was 

convicted. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *1. Conrick, who 

owed the debt to Petitioner, and Orosco, who recruited the robbery team, were found not guilty. 

Id. Petitioner was found guilty at trial of murder and home invasion based on his accountability 

for the conduct of the robbers. (Dkt. 21-5, pg. 13.) He received a 20-year sentence with a 15-

year enhancement for the use of a firearm during the crime for a total of 35 years on the murder 

conviction. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *1. He was 

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sentenced to six years for the home invasion, with a 15-year enhancement for the use of a firearm 

resulting in a 21-year sentence. The 35-year murder sentence and the 21-year sentence for 

home invasion were ordered to run consecutively for a total sentence of 56 years. Id. The 

convictions and sentence were affirmed on direct appeal. People v. Zavala, No. 1-07-0287 (Ill. 

App. Ct. May 22, 2008); People v. Zavala, 897 N.E.2d 262 (Ill. Sept. 28, 2008) (Table) (denial of 

petition for leave to appeal). 

C. Petitioner’s Postconviction Proceedings

Through private counsel retained after his appeal, Petitioner sought post-conviction relief, 

arguing that trial counsel provided ineffective assistance during pretrial plea negotiations. The 

state trial court held an evidentiary hearing, at which Petitioner, his brother and father, and his 

two trial attorneys testified. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *2-

4. One of the assistant state’s attorneys (ASA) who prosecuted the case also testified, and 

testimony from a second ASA was entered via stipulation. Id. at *3. 

Petitioner testified that his trial attorney informed him sometime in April or May 2004 that 

the prosecution was offering him a 10-year sentence in exchange for his pleading guilty to home 

invasion and testifying against codefendant Orosco. Id. at *2, *8. According to Petitioner, 

defense counsel assured him that because he was a first-time offender, he faced no more than 

20 years in prison. Id. at *2. His defense attorney allegedly said nothing about sentencing 

enhancements or consecutive sentences. Id. After consulting his family, Petitioner told his 

attorney he wanted to reject the 10-year sentence offer. Id. Petitioner claims that his attorney 

reiterated that he faced a possible 20-year sentence if convicted. Id. 

According to Petitioner, in June or July 2005, his attorney informed him of a new plea offer. 

Id. This time, he testified, the state offered him a 20-year sentence in exchange for a guilty plea 

without a cooperation requirement. Id. Petitioner says his attorney again told him the most he 

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faced if he went to trial and lost was 20 years, and again made no mention of consecutive or 

enhanced sentences. Id. Petitioner rejected the offer, telling his attorney it made no sense. Id. 

Petitioner’s father and brother testified at the evidentiary hearing in support of Petitioner’s 

version of events. Id. at *3. The father testified that Petitioner’s attorney spoke to the father 

directly to tell him about the 10 and 20-year sentence plea agreement offers, and said nothing 

about any possible sentencing enhancements or consecutive sentences. Id. The brother, who 

was present at the conversation between the lawyer and father and acted as a translator, also 

testified that the lawyer did not mention the possibility of enhancement or consecutive sentences. 

Id. The brother stated that he spoke to Petitioner over the telephone on numerous occasions 

about the plea offers, and that an enhanced or consecutive sentence was never mentioned in 

their conversations. Id.

Petitioner’s trial attorney’s testimony at the evidentiary hearing conflicted with Petitioner’s 

and his family’s version of events. The attorney said that the two plea proposals were not formal 

offers from the prosecution. Id. at *3. He related that he explained to Petitioner that any 

potential plea agreement would need approval within the prosecution’s office. Id. Petitioner 

submitted a complaint about his lawyer’s performance to the Illinois Attorney Registration and 

Disciplinary Commission and to the Chicago Bar Association; the attorney wrote a letter in 

response to those complaints and acknowledged, in his testimony at the hearing, that the letter 

said he had “secured” a plea offer, but he insisted that did not mean he had obtained a formal 

offer. Id. at *4. 

With respect to the potential sentence, trial counsel insisted he had conveyed accurate 

information to Petitioner: he stated he told Petitioner he faced a sentencing range of 20 to 60 

years on a murder conviction, and six to 30 years on the home invasion. Id. He claimed he told

Petitioner that he faced the possibility of consecutive sentences, and also discussed the possible 

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15-year sentencing enhancements for each charge. Id. He asserted he explained these 

possible sentences to Petitioner on numerous occasions prior to trial. Id. 

The defense attorney denied telling Petitioner or his family that he would receive a 20-

year sentence as a first-time offender. Id. Instead, he testified that he told Petitioner and his 

family that he intended to argue for a 20-year sentence. Id. He explained the law was unsettled 

as to whether consecutive sentencing or sentencing enhancements should apply in Petitioner’s

case as he was facing conviction under an accountability theory. Id. Counsel explained that his 

strategy at sentencing was to argue that the sentencing enhancements and consecutive 

sentencing should not be applied. Id. Defense counsel, in fact, made this argument at 

sentencing, but it was rejected. Id. at *1. 

Regarding the question of whether there was a formal offer in Petitioner’s case, Petitioner 

conceded on cross examination at the hearing that plea offers were not discussed in open court 

prior to trial, and that prior to filing his state court postconviction petition, he had never made any 

claims concerning plea offers. Id. at *2. As his defense attorney pointed out at the 

postconviction hearing, there was no Rule 402(d)(1) conference—that is, a pretrial conference in 

which the trial judge engages with counsel in plea negotiations, Ill. S. Ct. R. 402(d)(2); People v. 

Meza, 376 Ill. App. 3d 787, 788-90, 877 N.E.2d 1189, 1190-91, 315 Ill. Dec. 860, 861-62 (3d Dist.

2007)—in Petitioner’s case. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *3. 

Although the court conducted such a conference for Petitioner’s codefendants, there was no such 

conference for Petitioner. Id. at *4. 

The ASAs gave testimony consistent with that of Petitioner’s main defense attorney; they 

testified that there was no formal plea offer in the case. Id. at *2. Petitioner’s second trial 

attorney so testified, as well, though he conceded that he was not responsible for plea 

negotiations. Id. at *3. One of the ASAs noted that the prosecution office’s policy required a 

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formal plea agreement offer to be in writing, and that any agreement would have to be approved 

by a supervisor. Id. Both a written offer and supervisor approval were lacking in this case. Id. 

Testimony at the postconviction hearing suggests the reason that preliminary plea 

negotiations did not progress to a formal plea offer: Petitioner repeatedly stated he did not want 

to plead guilty. Id. at *8. Defense counsel explained at the hearing that Petitioner rejected the 

10-year plea offer because it would have required him to testify against Orosco, who is a relative 

of Petitioner’s. He further testified that Petitioner told him he would never testify against Orosco. 

Id. Then, when there was a discussion of a 20-year sentence that did not carry a cooperation 

requirement, Petitioner told his attorney that he would not plead guilty under any circumstances. 

Id. Petitioner’s lack of interest in entering a guilty plea was the reason there was no Rule 402 

conference, according to defense counsel. Id. The second chair defense attorney confirmed 

that testimony: Petitioner refused to testify against a codefendant, and stated an adamant desire 

to proceed to trial regardless of any plea offer. Id. Petitioner himself conceded on cross 

examination that he never suggested he wanted to enter a blind plea; that he wanted to proceed 

to trial; and that defense counsel moved to suppress his statements to the police because 

Petitioner wanted to fight the charges. Id. 

At the close of the evidentiary hearing, the trial court denied the petition. The court 

determined that no formal plea offers were made in the case, that Petitioner was reasonably 

advised of the sentencing consequences, and that Petitioner was adamant about not wanting to 

plead guilty. Id. at *4. The state appellate court affirmed the denial of the postconviction 

petition, concluding that Petitioner could not demonstrate prejudice under Strickland v. 

Washington, 466 U.S. 668 (1984), as applied in a plea bargain setting. Zavala, No. 2018 IL App 

(1st) 160720-U, 2018 WL 4760370, at *8 (“Here the evidence establishes that [] defendant clearly 

and expressly, on many occasions, indicated a desire for trial.”) (internal quotation marks and 

citations omitted). The Supreme Court of Illinois denied Petitioner’s petition for leave to appeal,

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completing his postconviction proceedings. People v. Zavala, 124 N.E.3d 465 (Ill. May 22, 2019) 

(Table). HIs petition for relief is now before this court. 

II. Analysis

A. Claim One: Trial Counsel’s Performance during Plea Negotiations

Petitioner alleges that his trial attorney was ineffective during plea negotiations because

he gave erroneous advice about the possible sentence Petitioner faced if convicted at trial. This 

court reviews the state appellate court opinion on postconviction review because that was the last 

state court to resolve the ineffective assistance claim on the merits. Harris v. Thompson, 698 

F.3d 609, 623 (7th Cir. 2012) (citing Green v. Fisher, 565 U.S. 34, 40 (2011); Garth v. Davis, 470 

F.3d 702, 710 (7th Cir. 2006)).

An ineffective assistance of counsel argument is governed by Strickland v. Washington, 

466 U.S. 668 (1984); see Missouri v. Frye, 566 U.S. 124, 140 (2012) (citing Hill v. Lockhart, 474 

U.S. 52, 57 (1985) (“Hill establishes that claims of ineffective assistance of counsel in the plea 

bargaining context are governed by the two-part test set forth in Strickland.”)). To demonstrate 

ineffective assistance of counsel, Petitioner must show both deficient performance and prejudice. 

Premo v. Moore, 562 U.S. 115, 121 (2011) (citing Knowles v. Mirzayance, 556 U.S. 111, 122

(2009)). The court is free to consider these issues in either order. Strickland, 466 U.S. at 697. 

When the issue of prejudice is straightforward, the court has discretion to address it before 

addressing counsel’s performance. Id. If the Petitioner cannot show prejudice under Strickland, 

the court can resolve the case exclusively on that ground. Id. 

In this case, the state appellate court addressed only the issue of prejudice. Zavala, No. 

2018 IL App (1st) 160720-U, 2018 WL 4760370, at *8. The Antiterrorism and Effective Death 

Penalty Act of 1996 (AEDPA) establishes a standard of review for issues that a state court 

adjudicated on the merits. Harris, 698 F.3d at 623. Thus, the court applies the deferential 

AEDPA standard to the issue of prejudice, but applies the pre-AEDPA standard to the issue of 

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trial counsel’s performance, which the state court did not reach. Myers v. Neal, 975 F.3d 611, 

620-21 (2020) (citing Wiggins v. Smith, 539 U.S. 510, 534 (2003)). 

1. Prejudice

As noted, the state appellate court addressed the issue of prejudice on postconviction 

review. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *4-8. Because that 

court was the last state court to address the issue on the merits, the court reviews its 

determination under the deferential standard of review established by AEDPA. Under that 

standard, the court may not grant habeas relief unless the state court’s decision on the merits 

was contrary to, or involved an unreasonable application of, clearly established federal law, as 

determined by the Supreme Court of the United States, or the state court’s decision was based 

on an unreasonable determination of facts. 28 U.S.C. § 2254(d). “The AEDPA’s standard is 

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

(per curiam) (quoting White v. Woodall, 572 U.S. 415, 419 (2014); Metrish v. Lancaster, 569 U.S. 

351, 358 (2013)). This “‘highly deferential standard [] demands that state-court decisions be 

given the benefit of the doubt.’” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (quoting 

Woodford v. Visciotti, 537 U.S. 19, 24 (2002)). The court’s review of a Strickland claim is also 

deferential. Knowles, 556 U.S. at 123. The result is a “doubly deferential judicial review”: the 

court layers deference under AEDPA upon deference under Strickland. Id. 

Missouri v. Frye, 566 U.S. 134 (2012), and Lafler v. Cooper, 566 U.S. 156 (2012), provide 

the clearly established federal law for Strickland prejudice when a plea offer is not accepted due 

to counsel’s alleged deficient performance. Lee v. United States, 137 S. Ct. 1958, 1965 n.1 

(2017). Petitioner must demonstrate a reasonable probability that “the outcome of the plea 

process would have been different with competent advice.” Lafler, 566 U.S. at 163 (citing Frye, 

566 U.S. at 148). He “must show that but for the ineffective advice of counsel there is a 

reasonable probability that the plea offer would have been presented to the court (i.e., that the 

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defendant would have accepted the plea and the prosecution would not have withdrawn it in light 

of intervening circumstances), that the court would have accepted its terms, and that the 

conviction or sentence, or both, under the offer’s terms would have been less severe than under 

the judgment and sentence that in fact were imposed.” Lafler, 566 U.S. at 164. 

The state court concluded that Petitioner did not meet that burden, and its decision is 

neither contrary to, nor an unreasonable application of, clearly established federal law. To the 

contrary, the state court properly identified Strickland, Frye, and Lafler, and applied the relevant 

standards from those cases. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *5. 

The state court noted that “defendant was adamant about not wanting to plead guilty.” Id. at *4. 

He did not want to testify against Orosco, and did not want to plead guilty under any circumstance 

because he believed he was not guilty of the crime. Id. at *8. It appears the parties never 

progressed in negotiating a possible plea because Petitioner repeatedly rejected the prosecutor’s 

initial forays on the subject. As a result, there was no Rule 402 conference, nor was there any 

formal written plea offer approved by supervisors in the prosecutor’s office, as required. 

In sum, the state court found that “the evidence established that [Petitioner] clearly and 

expressly, on many occasions, indicated a desire for trial.” Id. at *8 (internal quotation marks 

and citations omitted). Factual findings by the state court have a presumption of correctness, 28 

U.S.C § 2254(e)(1), and Petitioner has not successfully rebutted the presumption. The state 

court determined that there was no plea agreement in this case because of Petitioner’s own 

decision to proceed to trial under any circumstance. Zavala, No. 2018 IL App (1st) 160720-U, 

2018 WL 4760370, at *8. The state court’s determination that Petitioner could not demonstrate 

prejudice under Strickland was not an unreasonable application of clearly established federal law. 

2. Counsel’s Performance

Because he has not met the burden to establish prejudice, the court need not address 

Petitioner’s claim that his counsel’s performance was deficient. It bears noting, however, that 

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analysis of this issue is somewhat more complicated. Petitioner contends trial counsel 

erroneously advised him during the plea negotiation process that he faced no more than 20 years 

in custody if convicted at trial because he was a first-time offender. Defense counsel disputed 

this; he testified that he did inform Petitioner of the proper sentencing ranges and that sentencing 

enhancements and consecutive sentences could apply in his case. He explained that he

intended to argue for a 20-year sentence (and indeed did so, albeit unsuccessfully), but never 

promised Petitioner that he faced no more than 20 years. 

The state trial court, in its capacity as the finder of fact, concluded that the defense attorney 

properly advised Petitioner of the relevant sentencing law. Zavala, No. 2018 IL App (1st) 

160720-U, 2018 WL 4760370, at *4. The state appellate court declined to address counsel’s 

performance, Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *8, as permitted

under Strickland. See Strickland, 466 U.S. at 697. As a result, any review of the state court’s

finding on this issue would be governed by the more searching pre-AEDPA standard. Myers, 

975 F.3d at 620-21 (citing Wiggins, 539 U.S. at 534). Even so, the court’s review of counsel’s 

performance is “highly deferential.” Strickland, 466 U.S. at 689. In this review, the court is 

cautioned to “eliminate the distorting effects of hindsight, to reconstruct the circumstances of 

counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the 

time.” Id. 

The evaluation of counsel’s performance involves consideration of two questions: (1) what 

did counsel tell Petitioner regarding state sentencing law prior to trial; and, (2) was counsel’s

explanation correct? Recognizing that it is not “always [] easy to separate questions of ‘fact’ from 

‘mixed questions of law and fact’ for § 2254(d) purposes” under the pre-AEDPA standard, 

Wainwright v. Witt, 469 U.S. 412, 429 (1985), the court concludes that the question of what 

defense counsel told Petitioner prior to trial regarding his possible sentences if convicted is a 

factual question that receives deference under § 2254(d). See Thompson v. Keohane, 516 U.S. 

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99, 111 (1995). The question of whether defense counsel had an accurate understanding of 

state law when advising Petitioner is a mixed question of law and fact, not controlled by § 

2254(d)’s deferential standard and instead reviewed de novo. Thompson, 516 U.S. at 111-12. 

The court’s review of state court factual findings is governed by the standard enumerated 

in Townsend v. Sain, 372 U.S. 293 (1963), and codified at 28 U.S.C. § 2254(d), until the passage 

of the AEDPA in 1996.1

 Jefferson, 560 U.S. at 289-91. Under this standard, the federal court 

accepts the factual findings by the state court following a full and fair evidentiary hearing unless 

one of the eight statutory exceptions in pre-AEDPA 28 U.S.C. § 2254(d) applies. Id. at 290. 

This standard requires the federal court to afford a “high measure of deference to the fact findings 

made by the state courts.” Sumner v. Mata, 455 U.S. 591, 598 (1982). “28 U.S.C. § 2254(d) 

gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor 

has been observed by the state trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 

422, 434 (1983). 

In this case, the state court was presented with a swearing contest: Petitioner and his 

father and brother claimed that the defense counsel told them that Petitioner faced no more than 

20 years of imprisonment, while defense counsel testified he told Petitioner he faced a sentencing 

range of 20 to 60 years on the murder, six to 30 years on the home invasion, and that consecutive 

sentences and sentencing enhancements could apply in his case. The state trial court, in its 

capacity as the finder of fact at the evidentiary hearing, chose to believe defense counsel over 

 

1 That language confirmed that state court findings are presumed correct unless the merits 

of the factual dispute were not resolved; the fact-finding procedure was not adequate; the material 

facts were not developed; the state court lacked jurisdiction; or the petitioner was denied counsel, 

did not receive a fair hearing, or was otherwise denied due process. Jefferson v. Upton, 560 

U.S. 284, 290-91 (2010) (per curiam) (citing 28 U.S.C. § 2254(d)). The statute also permitted 

the federal court to reject factual findings if the court concluded, after review of the record as a 

whole, that the findings were not “fairly supported by the record.” Jefferson, 560 U.S. at 291

(quoting 28 U.S.C. § 2254(d)). 

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Petitioner and his family. The state appellate court, in turn, deferred to that factual finding. This 

court has no authority to reject a factual finding predicated upon a state judge’s determination 

crediting one witness over another. Marshall, 459 U.S. at 434. 

Petitioner makes much of the fact that defense counsel argued for a 20-year sentence at 

the sentencing hearing; but the sentence that a lawyer zealously advocates for on the client’s 

behalf is often much different than the advice tendered to the client in confidential 

communications. Indeed, American Bar Association standards, which inform the question of 

competent representation under Strickland, 466 U.S. at 688, require this type of zealous 

advocacy. ABA Criminal Justice Standards Defense Function 4-1.2(b) (2017). The state 

court’s factual finding that defense counsel properly advised Petitioner of the possible sentences 

during plea negotiations is not inconsistent with the fact that defense counsel argued for a lesser 

sentence than Petitioner ultimately received. Indeed, if counsel genuinely believed Petitioner 

was likely to receive a sentence no longer than 20 years, one would have expected him to argue 

for a sentence well short of that purported maximum.

It is worth noting here that a portion of defense counsel’s testimony at the evidentiary 

hearing appears to be mistaken. Counsel testified that prior to trial, the law was unsettled at the 

time as to whether Petitioner, who was being prosecuted under an accountability theory, qualified 

for either sentencing enhancements or consecutive sentences. Zavala, No. 2018 IL App (1st) 

160720-U, 2018 WL 4760370, at *3-4. Defense counsel’s evidentiary hearing testimony was 

correct about the state of the law as to sentencing enhancements, but incorrect as to consecutive 

sentences. The appellate court overruled Petitioner’s objection to sentence enhancements, 

citing cases decided after his 2006 conviction and sentencing. (Dkt. 21-5, pg. 15-16 (citing

People v. Rodriguez, 372 Ill. App. 3d 797, 866 N.E.2d 1228, 310 Ill. Dec. 626 (1st Dist. 2007);

People v. Macias, 371 Ill. App. 3d 632, 863 N.E.2d 776, 309 Ill. Dec. 144 (1st Dist. 2007))). The 

Supreme Court of Illinois subsequently resolved the issue, affirming the holding of Rodriguez that 

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the enhancement applied. People v. Rodriguez, 229 Ill. 2d 285, 891 N.E.2d 854, 322 Ill. Dec. 

563 (2008). Petitioner’s trial counsel could not have anticipated the subsequent Supreme Court 

of Illinois and Appellate Court of Illinois decisions, and his failure to do so does not mean his 

performance was inadequate. Ramirez v. Tegels, 963 F.3d 604, 614 (7th Cir. 2020). 

Petitioner’s attorney testified that the law with respect to consecutive sentences was also 

unsettled when he advised Petitioner prior to trial. Zavala, No. 2018 IL App (1st) 160720-U, 2018 

WL 4760370, at *3. It appears to this court, however, that the law was in fact, settled on this 

point in 1982 by the Supreme Court of Illinois in People v. Sangster, 91 Ill. 2d 260, 437 N.E.2d 

625, 62 Ill. Dec. 937 (1982). Sangster held that a defendant who is responsible for the actions 

of his cohorts under an accountability theory is also liable for the severe bodily injury the cohort 

inflicts for purposes of the consecutive sentence statute. 91 Ill. 2d at 265, 437 N.E.2d at 628, 62 

Ill. Dec. at 940; see 730 ILCS 5/5-8-4(a)(1) (West 2006) (“The court shall impose consecutive 

sentences if one of the offenses for which defendant was convicted was first degree murder or a 

Class X [] felony and the defendant inflicted severe bodily injury.”); People v. Causey, 341 Ill. App. 

3d 759, 771, 793 N.E.2d 169, 179, 275 Ill. Dec. 689, 699 (1st Dist. 2003). It appears, thus, that 

the law was clear that Petitioner faced a mandatory consecutive sentence if convicted at trial. 

Causey, 341 Ill. App. 3d at 772-73, 793 N.E.2d at 180, 275 Ill. Dec. at 700 (citing Sangster, 91 Ill. 

2d at 265-66, 437 N.E.2d at 628, 62 Ill. Dec. at 940) (“[M]andatory consecutive sentencing applies 

even when defendant is convicted on accountability theory.”). 

Erroneous advice by counsel during plea negotiations regarding possible sentences can 

constitute deficient performance under Strickland, Brock-Miller v. United States, 887 F.3d 298, 

308 (7th Cir. 2020), but if the court were to reach the issue in this case, it would not find that 

counsel’s apparent error warrants relief. “Strickland does not guarantee perfect representation, 

only a reasonably competent attorney.” Harrington v. Richter, 562 U.S. 86, 110 (2011) (internal 

quotation marks and citations omitted). Counsel did advise Petitioner that he faced the possibility 

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of consecutive sentences. Zavala, No. 2018 IL App (1st) 160720-U, 2018 WL 4760370, at *4. 

The state court finding, which the court must defer to under § 2254(d), is that defense counsel 

informed Petitioner that he faced up to 60 years on the murder charge, 30 on the home invasion,

and additional 15-year enhancements for each of the two charges, and that the sentences could 

run consecutively. Id. In sum, Petitioner was advised that he faced a possible sentence of up 

to 120 years imprisonment, not 20 years, as he claims. An error on the issue of whether 

consecutive sentences were mandatory does not move the court to reject the state court’s 

conclusion that defense counsel gave Petitioner appropriate advice. His performance met 

constitutional standards. Harrington, 562 U.S. at 110. Claim One is denied. 

B. Claim Two: Ineffective Assistance of Postconviction Trial Counsel

Petitioner contends his postconviction counsel was deficient, but a claim of ineffective 

assistance of postconviction counsel claim is not cognizable in a federal habeas corpus 

proceeding. 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during 

Federal or State collateral post-conviction proceedings shall not be a ground for relief in a 

proceeding arising under section 2254.”). 

Petitioner also claims the postconviction proceedings themselves were deficient because

the state court failed to consider his pro se filings during that process. This claim fails for a similar 

reason. There is no constitutional right to bring a postconviction petition, so a challenge to the 

deficiency of the proceedings requires some other freestanding constitutional violation such as a 

due process or equal protection concern. See Flores-Ramirez v. Foster, 811 F.3d 861, 866 (7th 

Cir. 2016). Petitioner complains that the state court rejected his efforts to bring pro se filings in 

his postconviction process, but Petitioner was represented by counsel in the proceeding. 

Petitioner cannot demonstrate a freestanding constitutional claim because there is no 

constitutional right to hybrid representation. Hudson v. Uchtman, No. 03 CV 8699, 2008 WL 

4223661, at *7 (N.D. Ill. Sept. 9, 2008). Claim Two is denied. 

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III. Petitioner’s Motions for Counsel and Discovery 

Petitioner filed a renewed motion for attorney representation and motion for discovery at 

the same time he filed the reply in support of the habeas corpus petition. Counsel is provided in 

a habeas corpus proceeding when an evidentiary hearing is needed or if the interests of justice 

require. See 18 U.S.C. § 3006A(a)(2)(B); Martel v. Clair, 565 U.S. 648, 659 (2012); Rule 8(c), 

Rules Governing Section 2254 Cases. Petitioner notes that he attempted to hire counsel but 

was unable to afford the fee. He has been able to represent himself in this case through the filing 

of his petition and reply in support, however. The court declines to appoint counsel in this case. 

Nor is discovery necessary or appropriate. The court will order discovery in a § 2254 

proceeding only where the petitioner has made “a colorable claim showing that the underlying 

facts, if proven, constitute a constitutional violation” and has shown “‘good cause’ for the 

discovery.’” Tabb v. Christianson, 855 F.3d 757, 763 (7th Cir. 2018) (quoting Hubanks v. Franks, 

392 F.3d 926, 933 (7th Cir. 2004)); see also Rule 6, Rules Governing Section 2254 Cases in the 

United States District Courts. Neither of these factors is shown here. 

IV. Certificate of Appealability and Notice of Appeal Rights

The court declines to issue a certificate of appealability. Petitioner cannot make a 

substantial showing of the denial of a constitutional right; i.e., reasonable jurists would not debate, 

much less disagree, with this court’s resolution of Petitioner’s claims. Arredondo v. Huibregtse, 

542 F.3d 1155, 1165 (7th Cir. 2008) (citing 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 

473, 484 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). 

Petitioner is advised that this is a final decision ending his case in this court. If Petitioner 

wishes to appeal, he must file a notice of appeal with this court within 30 days of the entry of 

judgment. See FED. R. APP. P. 4(a)(1). Petitioner need not bring a motion to reconsider this 

court’s ruling to preserve his appellate rights. If he does seek reconsideration, Petitioner may do 

so by filing a motion under Federal Rule of Civil Procedure 59(e) or 60(b). Any Rule 59(e) motion 

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must be filed within 28 days of the entry of this judgment. See FED. R. CIV. P. 59(e). The time 

to file a motion pursuant to Rule 59(e) cannot be extended. See FED. R. CIV. P. 6(b)(2). A timely 

Rule 59(e) motion suspends the deadline for filing an appeal until the Rule 59(e) motion is ruled 

upon. See FED. R. APP. P. 4(a)(4)(A)(iv). Any Rule 60(b) motion must be filed within a 

reasonable time and, if seeking relief under Rule 60(b)(1), (2), or (3), must be filed no more than 

one year after entry of the judgment or order. See FED. R. CIV. P. 60(c)(1). The time to file a 

Rule 60(b) motion cannot be extended. See FED. R. CIV. P. 6(b)(2). A Rule 60(b) motion 

suspends the deadline for filing an appeal until the Rule 60(b) motion is ruled upon only if the 

motion is filed within 28 days of the entry of judgment. See FED. R. APP. P. 4(a)(4)(A)(vi).

V. Conclusion

Petitioner’s habeas corpus petition [1] is denied, as are his motions for appointment of 

counsel [28] and for discovery [29]. Any other pending motions are denied as moot. The court 

declines to issue a certificate of appealability. The Clerk is instructed to enter a judgment in favor 

of Respondent and against Petitioner. Civil case terminated. 

ENTERED:

Dated: February 9, 2021 __________________________________

REBECCA R. PALLMEYER

United States District Chief Judge

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