Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.robert Lee Barnett, Petitioner-appellant, v. Salvador A. Godinez, Respondent-appellee, 61 F.3d 905 (7th Cir. 1995)

ORDER

In 1982, Robert Lee Barnett was convicted in an Illinois court of armed robbery and unlawful restraint. Because the armed robbery conviction was his third major felony conviction, Barnett was sentenced to a mandatory term of life imprisonment without parole under the Illinois habitual criminal statute, 720 ILCS 5/33B-1.¹  Barnett filed a petition under 28 U.S.C. § 2254 challenging his armed robbery conviction. In his habeas corpus petition, he alleges that (1) his trial attorneys were ineffective for failing to request an instruction on the lesser-included offense of simple robbery; (2) his trial attorneys provided ineffective assistance by failing to challenge a number of jurors; (3) the prosecutor made several prejudicial comments including an improper reference to Barnett's decision not to testify at trial; and (4) the prosecution violated his due process rights by not informing him that it would seek a life sentence under the habitual criminal statute. The district court denied Barnett's petition without conducting an evidentiary hearing.

If a petitioner under Sec. 2254 does not present a claim to the highest state court, the claim is defaulted. Lostutter v. Peters, 50 F.3d 392, 394 (7th Cir. 1995), cert. petition filed (June 6, 1995) (No. 94-9577); Nutall v. Greer, 764 F.2d 462, 464 (7th Cir. 1985). Barnett did not present his due process, prosecutorial comment, and juror claims to the Illinois Supreme Court either on direct appeal or in his state post-conviction proceedings. Thus, we will not review these claims unless Barnett demonstrates cause and prejudice. Lostutter, 50 F.3d at 392.

As cause for his procedural default, Barnett alleges ineffective assistance of appellate counsel. Although ineffective assistance of counsel may excuse a petitioner's procedural default, the claim of ineffective assistance must first be presented to the state courts. Lemons v. O'Sullivan, No. 94-2147, slip op. at 3-4 (7th cir. April 28, 1995); Lostutter, 50 F.3d at 395. Barnett did not argue in state court that his appellate counsel rendered ineffective assistance by not presenting the due process, prosecutorial comment, and juror claims to the Illinois Supreme Court. Thus, he may not claim ineffective assistance as cause for his procedural default. Finally, as he makes no showing of cause "external to his claims of ineffective assistance," Lemons, slip op. at 4, we may not review these claims.² 

Barnett was convicted of armed robbery for using a knife in the commission of a robbery.³  The sole theory of his defense was that he did not use or carry a knife. Barnett's attorneys conducted the trial with the initial intention of offering an instruction on the lesser-included offense of simple robbery.⁴  At the jury instruction conference, however, defense counsel Kissel revealed that he had discussed the matter with Barnett earlier that morning and they had decided not to request a robbery instruction. III Tr. at 295. After engaging in a colloquy with Barnett to determine whether he assented to this new strategy, the judge agreed not to give the robbery instruction.⁵ 

Barnett claims that his attorneys provided ineffective assistance by recommending this all-or-nothing strategy. The stakes were undoubtedly high. A conviction for simple robbery would not have qualified Barnett as a habitual criminal. See 720 ILCS 5/33B-1(a). Robbery is a Class 2 felony, 720 ILCS 5/18-1(b), that carries a sentence of 3 to 7 years of imprisonment. 730 ILCS 5/5-8-1(5). The armed robbery conviction made Barnett a habitual criminal, mandating a term of life without parole.

Barnett's attorneys apparently believed that they could gain an acquittal by creating a reasonable doubt about whether the robbery involved a knife. The prosecution's case for armed robbery was by no means airtight -- it rested solely on whether the jury believed the victim's testimony that Barnett had carried a knife.⁶  If the robbery instruction were presented, however, the chances of acquittal would reduce to near-zero, because Barnett had admitted that he committed the robbery. But withholding the robbery instruction created a risk for the defense as well. The fact that Barnett committed the robbery was never contested. When a jury is faced with a choice between voting to acquit a defendant who admittedly committed a serious crime and convict of a greater offense, there is a chance that it will convict of the greater offense despite reasonable doubt concerning an element (here, the knife) to avoid letting a dangerous criminal go free. See Beck v. Alabama, 447 U.S. 625, 637 (1980). In Beck, the Supreme Court cited this fear of unwarranted conviction in holding that an Alabama statute that barred instructions on lesser included offenses in capital cases violated the defendant's due process rights. Id. at 637-38. This Court, however, has declined to extend Beck to non-capital cases. Nichols v. Gagnon, 710 F.2d 1267, 1272 (7th Cir. 1983), cert. denied, 466 U.S. 940 (1984).⁷ 

In some instances, leaving the jury with an all-or-nothing choice (and thus risking an unwarranted conviction) may constitute ineffective assistance. In United States ex rel. Barnard v. Lane, 819 F.2d 798 (7th Cir. 1987), the defendant's attorney withheld instructions on justification and manslaughter, leaving the jury with a choice of acquitting or convicting of murder. Barnard testified that he shot the victims, so his only possible defenses were that the homicide was justified or that he lacked the mental state necessary for murder. See Barnard, 819 F.2d at 805. Thus, the court held that failing to request the lesser instructions left Barnard with no defense and constituted ineffective assistance. Id.

Barnett's case is different from Barnard. While the decision to forego a robbery instruction may have increased the probability of an armed robbery conviction, it did not leave Barnett without a defense. To prove armed robbery, the state had to prove beyond a reasonable doubt that Barnett used a knife in the commission of the robbery. The defense theory that no knife existed was a complete defense to the charge of armed robbery -- if the jury possessed a reasonable doubt that Barnett used a knife, it was instructed to acquit. III Tr. at 346. Barnett's attorneys presented a viable defense, so the failure to request a robbery instruction was not ineffective assistance per se under Barnard. Thus, Barnett's only argument is that the decision to omit the robbery instruction was not sound trial strategy.

The decision of whether to request an instruction on a lesser-included offense is a matter of trial strategy. See United States v. Boyles, No. 92-3886, slip op. at 32-33 (7th Cir. June 8, 1995); United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992). Generally, decisions regarding trial tactics are accorded "enormous deference," United States v. Hirschberg, 988 F.2d 1509, 1513 (7th Cir. 1993), cert. denied, 114 S. Ct. 311 (1993), and will not constitute ineffective assistance if, "viewed from counsel's perspective at the time, [they] might be considered sound trial strategy." Kubat v. Thieret, 867 F.2d 351, 360 (7th Cir. 1989), cert. denied, 493 U.S. 874 (1989). Consequently, withholding a lesser-included instruction will not constitute ineffective assistance when requesting the instruction would conflict with a reasonable trial strategy. Boyles, slip op. at 32-33 (failure to request instruction on reasonable mistake in rape case not ineffective assistance because would conflict with consent defense); Kubat, 867 F.2d at 364-65 (seeking lesser-included instruction in kidnapping case would conflict with alibi defense).

Presenting the jury with an all-or-nothing choice is generally a reasonable trial strategy because, although it involves a risk, it increases the chances of an acquittal. See Collins v. Lockhart, 707 F.2d 341, 345-46 (8th Cir. 1983) (Gibson, J. concurring); United States ex rel. Sumner v. Washington, 840 F. Supp. 562, 573-74 (N.D. Ill. 1993).⁸  Given the stakes of losing (life without parole), the decision to forego the robbery instruction in Barnett's case may not have been the wisest choice. We do not, however, review the strategic decisions of attorneys for their wisdom. Rather, a defendant receives ineffective assistance of counsel only if "his attorney's performance fell below an objective level of reasonableness." Mason v. Godinez, 47 F.3d 852, 855 (7th Cir. 1995), cert. petition filed (June 1, 1995) (U.S. No. 94-9540); see also Lockhart v. Fretwell, 113 S. Ct. 838, 842-43 (1993); Strickland v. Washington, 466 U.S. 668, 687-88 (1984). We cannot say that the decision to withhold the robbery instruction was unreasonable. Barnett's attorneys may have believed that they had created considerable doubt about the knife -- a reasonable belief given that the prosecution's case rested completely on Manos' testimony. They may have felt -- and reasonably so -- that the chances of an acquittal were high enough to warrant the all-or-nothing gamble. The fact that they lost should not affect our determination that, at the time, the choice was reasonable. Cf. Kubat, 867 F.2d at 360.

While the all-or-nothing choice was reasonable, Barnett's attorneys did not have the authority to make the decision to adopt this strategy alone. Although an attorney possesses great latitude to shape trial strategy, see Underwood v. Clark, 939 F.2d 473, 474 (7th Cir. 1991), the client must participate in the decisionmaking process when important decisions are concerned or fundamental rights are at issue. Johnson v. Duckworth, 793 F.2d 898, 900 (7th Cir. 1986), cert. denied, 479 U.S. 937 (1986).⁹  In Barnett's case, the decision to forego the robbery instruction was an exceedingly important choice, especially considering that Barnett faced life without parole if his gamble backfired. Thus, before allowing Barnett to pursue the all-or-nothing strategy, his attorneys should have fully informed him of the consequences of that choice by, for instance, giving their best estimates of his chances for acquittal and discussing the mandatory life term under the habitual criminal statute. See ABA Standard for Criminal Justice 4-5.2, cmt. (3d ed. 1993) ("It is ... important in a jury trial for defense counsel to consult fully with the accused about any lesser included offenses the trial court may be willing to submit to the jury."); cf. Strickland, 466 U.S. at 688 (counsel has duty "to consult with the defendant on important decisions").¹⁰ 

In his pro se pleadings, Barnett hints that he was not aware of the habitual criminal statute nor did he understand the significance of a lesser-included instruction. See R. 1, Sec. 2254 petition at 12-13. He states a desire that "a fair investigation of the adequacy of the communications between [defense attorney] Mr. Kissel and Mr. Barnett on this critical matter" be conducted. Id. at 13.¹¹  The district court, however, did not order an evidentiary hearing. A federal evidentiary hearing is required in a Sec. 2254 proceeding if two requirements are met. First, the petitioner must allege facts that, if proven, would entitle him to relief. McGeshick v. Fiedler, 3 F.3d 1083, 1086 (7th Cir. 1993). Second, the federal court must determine that the state court has not already "reliably found the relevant facts." Ford v. Wainright, 477 U.S. 399, 410 (1986). Here, both conditions are fulfilled. Barnett alleges that he did not make an informed decision to forego the robbery instruction. If this is the case, he is entitled to a new trial on the armed robbery charge.¹²  The state court never ordered an evidentiary hearing or made any findings of fact on this issue.¹³  Thus, a federal evidentiary hearing is required.

In conclusion, the district court's denial of Barnett's due process, prosecutorial comment, and juror claims is AFFIRMED. The robbery instruction claim is REMANDED to the district court for an evidentiary hearing.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.