NONPRECEDENTIAL DISPOSITION
To cited accordance with Fed. R. P. 32.1
United States Court of Appeals For Seventh Circuit
Chicago,
Submitted January [*]
Decided January
Before
MICHAEL S. KANNE, Circuit Judge DIANE SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No.
JOHN LAVIN, Appeal District
Petitioner Appellant. Northern District Illinois, Eastern Division. C
DAVE REDNOUR,
Respondent Appellee. Joan B. Gottschall, Judge.
O R D E R John Lavin, prisoner serving year first ‐ degree murder, appeals denial writ habeas corpus U.S.C. § 2254. district granted certificate appealability issues: (1) whether supports conviction murder, (2) whether ‐ sentence violates New Jersey (2000), and (3) whether counsel was ineffective. affirm. consented to bench after being indicted for attempted murder,
aggravated battery, and aggravated battery senior citizen. The victim, ‐ year ‐ old Gilbert testified he was brutally attacked early and sustained significant injuries. An eyewitness fingered Lavin, then his late 30s, as assailant and testified two men had pushed each other before punched Costello face, knocking him to ground. Costello lay on ground, witness said, Lavin stomped “something” three times. The witness went over Costello and saw his “face pretty messed up” and his mouth “full blood.” This account was corroborated by paramedic and police officer, who described Costello’s face as swollen and bloody. Costello hospitalized nearly two months and, upon his release, moved into a nursing home, having suffered damage his mobility, speech, memory.
Lavin’s prosecution had mistakenly targeted him attacker, though he could not implicate anyone else. He had seen Costello lying ground, he testified, tried help him but backed off after accused him attacking Costello. The eyewitness, however, identified open assailant, produced stipulated testimony by forensic scientist DNA from blood Lavin’s boots consistent with Costello’s.
The guilty attempted murder, concluding inflicted injuries had intent kill. That intent evident, found, disparity size age between two men—Lavin more than years younger than Costello but also appeared be about pounds heavier. The court also emphasized nature attack: “stomped” times heel. One, maybe two, those stomps might attributed “rage,” said, but third stomp amounted murder. The later sentenced to years’ imprisonment murder, extending term beyond ‐ year statutory maximum, permitted ILCS 5/5 ‐ ‐ (1998), because Lavin’s was old, see id. 5/5 3.2(b)(4)(ii) (1998).
On direct appeal, Court rejected arguments (1) did support finding had intent (2) extended term violated because victim’s proven beyond a doubt. Supreme denied leave appeal. petitioned relief, see ILCS 5/122 alleging provided ineffective assistance failing voluntary ‐ intoxication. At the time of Lavin’s trial, voluntary intoxication a defense under Illinois law if it rendered a defendant unable to form intent. ILCS 5/6 (1998). Witnesses at testified that Lavin seemed drunk the night of the attack, and Lavin said at that “drank more than five ounces that day.” But had testified that drank only “two ouncers”—the last one more than four hours before attack—and under the influence of alcohol the time of the The trial court denied the postconviction petition, noting that Lavin’s attorney strategically chose to forego voluntary intoxication in order to pursue one of mistaken identity. According to the the defenses of voluntary intoxication and mistaken identity are “mutually exclusive,” and counsel “had pick one theory to go forward with.” The thus found had shown deficient performance or prejudice Strickland v. Washington (1984). appealed this ruling, and moved withdraw. After
record Lavin’s pro se responses, Illinois Appellate Court found issues of arguable merit, granted counsel’s motion withdraw, affirmed court’s judgment. The Illinois Supreme Court denied leave appeal. then rehashed claim second petition relief, which court construed successive petition relief summarily dismissed. The Illinois Appellate Court affirmed judgment, Supreme Court again denied leave appeal. next petitioned federal court writ of habeas corpus, asserting among other claims three form basis appeal. district court denied petition all claims. First, concluded Appellate Court was “unreasonable inferring intended time assault.” Second, rejected argument, concluding Illinois denied argument because found beyond doubt old. Third, trial counsel’s decision pursue mistaken identity “easily justifiable” because only one claimed seen attack mistaken identity, unlike intoxication, “would resulted acquittal all charges against Lavin.”
Our review constrained Antiterrorism Effective Death Penalty Act 1996. U.S.C. § 2254(d). may grant relief if courts’ adjudication claims merits contrary clearly established precedent from Supreme Court, unreasonable application precedent, an unreasonable determination facts light evidence. id. § 2254(d)(1) & (2); Harrington Richter (2011); Morales Johnson Cir. 10 4
Lavin first contends that there insufficient evidence that he intent to kill, essential element of first degree murder in Illinois. See People v. Hopp , N.E.2d 1190, 1197 (Ill. 2004). His conviction, he argues, should overturned under Jackson v. Virginia , 443 U.S. 307, 319 (1979), which requires courts ask whether “ any rational trier of fact could found the essential elements of the crime beyond a reasonable doubt.” See United States v. Holstein , 618 F.3d 610, 612 (7th Cir. 2010).
But the state court’s decision did not run afoul of Jackson . Under law, specific intent may inferred surrounding circumstances, including the character of an attack, the extent victim’s injuries, or a disparity in size or strength between victim attacker. See Nelson v. Thieret , 793 F.2d 146, 148 (7th Cir. 1986); People v. Williams , N.E.2d 397, (Ill. 1995); People v. Scott , N.E.2d 86, 89 (Ill. 1994). the Illinois noted, judge here based his decision convict on his greater size well nature And injuries were extensive permanent. asserts that nobody saw him stomp Costello (the saw him stomp merely “something”) that medical evidence proves that trampled upon Costello. But judge, trier fact, inferred that Lavin stomped appellate court, required view light most favorable prosecution, did violate Jackson by upholding decision. next argues state erroneously deprived him his right a jury Apprendi, 490, when it engaged judicial factfinding increasing his sentence beyond statutory maximum. There are two preliminary problems with this argument. First, consented bench trial, so Apprendi requires trial judge found beyond reasonable doubt any fact relied increase above statutory maximum. See Mack v. McCann , F.3d 523, (7th Cir. 2008); Jones v. Hulick , F.3d 784, (7th Cir. 2006); v. Brough F.3d 1078, 1078–79 (7th Cir. 2001). Second, although now challenges all aggravating factors applied sentence, state limited his claim challenging increase victim’s age. He did additional arguments first state so they are procedurally barred. Ward Jenkins F.3d (7th Cir. 2010); Byers Basinger Cir. reiterates judge did find beyond reasonable doubt that
Costello old. note there some confusion ‐ decisions: judge said during guilt phase charge battery a senior citizen “merge[d]” murder—even though charge has an additional element, being older. appellate apparently overlooked misstatement reasoned judge, finding guilty battery senior citizen, necessarily beyond doubt *5 No. older. Significantly, however, appellate also highlighted judge’s remark at guilt phase “that over at time attack,” judge
himself commented at old “as matter fact this case.” In any event, never seriously dispute, government notes, so any potential error is at most harmless. See Washington v. Recuenco , 212, (2006); States v. Hollingsworth , F.3d 795, (7th Cir. 2007).
Finally, argues counsel ineffective failing defense voluntary intoxication. To prevail, must show appellate unreasonably applied Strickland evaluating reasonableness prejudice caused by counsel’s performance. Harrington , Ct. at 788; Morgan v. Hardy , 3155, WL 5319665, at *9 (7th Cir. Nov. 7, 2011). cannot make showing. state appellate after record well petition, issue lacked merit. There is overcome presumption counsel exercised sound strategy. See Yu Tian Li United F.3d 524, (7th Cir. 2011). Not would intoxication defense conflict with mistaken identity defense chose pursue, but intoxication would have been battery. People Rodgers N.E.2d (Ill. 2002). Moreover, intoxication would odds Lavin’s testimony influence alcohol time we said, “[i]t difficult see how collateral attack proposition petitioner’s own testimony pack lies has any prospect success.” Escamilla v. Jungwirth Cir.
AFFIRMED .
[*] After examining briefs record, we concluded oral argument is unnecessary. Thus, appeal submitted briefs record. F ED . R. A PP . P. 34(a)(2)(C).