Ineffective Assistance of Counsel

Listen to this article

7^th Circuit Court of Appeals

Case Name: Volney McGhee v. Cameron Watson,

Case No.: 15-3881

Officials: WOOD, Chief Judge, and BAUER and SYKES, Circuit Judges.

Focus: Ineffective Assistance of Counsel

In 2002 an Illinois jury convicted Volney McGhee of murder and attempted murder after he shot two men outside a Chicago gas station. McGhee’s defense attorney asked the trial judge to poll the jury after the guilty verdict was read. The judge said, “[a]ll right,” but inexplicably did not conduct the poll. Instead, he simply thanked the jurors and dismissed them. That was error: In Illinois a criminal defendant “has the absolute right to poll the jury after it returns its verdict.” People v. McGhee, 964 N.E.2d 715, 719 (Ill. App. Ct. 2012). Yet defense counsel did not object when the judge moved directly to his closing remarks without conducting the poll. Nor did he raise the issue in a posttrial motion. McGhee’s appellate lawyer likewise failed to challenge the error on direct review.

McGhee’s conviction was affirmed on appeal and in state collateral review. He then sought habeas relief under 28 U.S.C. § 2254. The district judge denied the petition. On appeal McGhee raises three claims under Strickland v. Washington, 466 U.S. 668 (1984), related to the judge’s failure to poll the jury: (1) his trial counsel was ineffective for failing to object to the judge’s jury-polling error; (2) his appellate counsel was ineffective for failing to raise the judge’s error on appeal; and (3) his appellate counsel was ineffective for failing to challenge trial counsel’s failure to preserve the polling error.

McGhee’s first two claims are waived because he did not present them in his § 2254 petition. The third is procedurally defaulted. McGhee failed to present it through one complete round of state-court review, and the ineffective assistance of postconviction counsel is not cause to excuse a defaulted claim that appellate counsel was constitutionally ineffective. Davila v. Davis, 137 S. Ct. 2058, 2063 (2017). We therefore affirm the judgment.

Affirmed

Full Text

Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.