Joseph Bravieri v. Nedra Chandler

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued February 28, 2007
Decided March 29, 2007
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 06-2395
JOSEPH BRAVIERI,
Petitioner-Appellant,
v.
NEDRA CHANDLER,
Respondent-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division
No. 97 C 2832
Blanche M. Manning,
Judge
ORDER
Illinois inmate Joseph Bravieri was convicted of murdering two people and is
serving life in prison. After unsuccessfully pursuing a direct appeal and state
postconviction petition, he petitioned the district court for a writ of habeas corpus.
The district court denied relief but granted a certificate of appealability on the
question whether Bravieri was denied the right to effective trial counsel. Because
Bravieri has failed to demonstrate that the Illinois courts unreasonably applied
clearly established federal law in disposing of his claim, we affirm the district
court’s denial of his petition.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 06-2395 Page 2
I.
For our purposes, we accept as true the factual findings of the Illinois Court
of Appeals. See People v. Bravieri, Nos. 1-02-0442 & 1-02-0443 (Ill. App. Ct. 2004)
(unpublished order); see 28 U.S.C. § 2254(e)(1) (affording presumption of correctness
to factual findings of state court). During the early morning hours of December 18,
1988, two people were killed in Joann Gasic’s apartment: Gasic was shot to death
while sleeping, and Carmine Sarlo died from multiple stab wounds, blunt force
trauma, and two gunshot wounds. Bravieri and Richard Zuniga were tried in
connection with the deaths. At trial the State of Illinois presented evidence that at
approximately 7:00 a.m. on December 18, Bravieri, Zuniga, and Sarlo arrived at
Gasic’s apartment, where they ingested cocaine and played cards in the living room
with Gasic’s roommate, Sandra Ault. According to Ault, at some point during the
card game she saw Bravieri leave the room. She then heard him say, “You got to go
Joann, you just got to go,” followed by two gun shots. When Bravieri returned to
the living room, he was carrying a shotgun. He shot at Ault, but missed; she played
dead on the floor hoping that he would leave her alone. Sarlo then suggested that
they leave, but Bravieri responded: “No, you got to go, Carmie. You got to go, too.”
A struggle ensued between Bravieri, Zuniga, and Sarlo. As Ault fled from the
apartment, she heard Bravieri say, “You got to shoot him in the head, Ricky.”
Bravieri, on the other hand, testified that Sarlo fired the gun that killed Gasic, and
that he and Zuniga killed Sarlo in self defense during the resulting fight.
Following a bench trial, a judge found Bravieri guilty on two counts of
first-degree murder and sentenced him to life in prison. On direct appeal, the
Appellate Court of Illinois affirmed his convictions. In April 1995 the Supreme
Court of Illinois denied leave to appeal.
Bravieri did not immediately file a postconviction petition. Instead, he
waited for two years while his co-defendant, Zuniga, litigated a state postconviction
petition claiming ineffective assistance of trial counsel. The trial court denied
relief, but the state appellate court reversed in part and remanded on the question
whether Zuniga’s counsel had rendered ineffective assistance by not adequately
investigating the case and preparing for trial, and by leaving the courtroom during
portions of the trial. Bravieri, seeing the result, then petitioned the district court
for a writ of habeas corpus under 28 U.S.C. § 2254, claiming as relevant to this
appeal that he was denied effective assistance of counsel based upon the alleged
shortcomings of Zuniga’s counsel. Because his own lawyer had agreed to share
trial-preparation duties with Zuniga’s counsel, Bravieri reasoned, the shortcomings

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No. 06-2395 Page 3
1Bravieri and Zuniga were tried in separate but simultaneous bench trials.
In this type of proceeding, defendants try their cases simultaneously in the same
court room before the same judge. See, e.g., Illinois v. Schmitt, 545 N.E.2d 665 (Ill.
1989); Illinois v. Crossley, 603 N.E.2d 575 (Ill. App. Ct. 1992); Illinois v. Gholston,
464 N.E.2d 1178 (Ill. App. Ct. 1984). Although the procedure is unusual, it is
permitted in Illinois so long as evidence admissible against one defendant is not
considered against the other defendant. Schmitt, 545 N.E.2d at 669 (“[W]e believe a
trial court is capable of compartmentalizing its consideration of evidence.”); Illinois
v. Crossley, 603 N.E.2d at 581-82 (explaining that a judge is believed to have the
ability to restrict his use of improper evidence and to consider only competent
evidence).
of Zuniga’s counsel also affected the outcome of his trial.1 Bravieri filed his federal
petition on April 22, 1997, just two days short of the applicable deadline for
inmates, like him, whose convictions became final before the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Newell v.
Hanks, 283 F.3d 827, 833 (7th Cir. 2002). At the same time, he also petitioned the
state court for postconviction relief, and several months later he asked the district
court to dismiss his federal petition without prejudice and with leave to reinstate
within 30 days following completion of the state-court proceedings. The district
court granted the motion.
Bravieri’s postconviction petition was denied by the state trial court without
an evidentiary hearing. He appealed that ruling to the state appellate court. After
consolidating his and Zuniga’s postconviction appeals, the Appellate Court of
Illinois denied relief in both cases, and the Illinois supreme court denied leave to
appeal. Approximately seven months later, on June 14, 2005, Bravieri moved the
district court to reinstate his federal petition, which the district court granted.
Bravieri’s § 2254 petition set forth five grounds for relief, but the only issue
on appeal concerns his trial counsel’s performance. Bravieri claimed that he
received ineffective assistance of counsel because his trial counsel relied on Zuniga’s
counsel to investigate the forensic evidence, including a fingerprint found on the
gun. That investigation was never completed, said Bravieri, because of Zuniga’s
counsel’s “mental instability and incompetency,” resulting in prejudice to him.
Bravieri claims the identity of the fingerprint would have supported his theory of
self defense because it would have established that Sarlo also “possessed” the
shotgun.
The district court denied Bravieri’s petition. But the court subsequently
granted a certificate of appealability on the issue of whether Bravieri was “denied
the right to constitutionally effective counsel when his trial lawyer agreed to a

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No. 06-2395 Page 4
partial joint defense with counsel for Bravieri’s co-defendant, who failed to obtain
the promised forensic analysis of the fingerprint on the gun used to shoot Joann
Gasic.”
II.
On appeal Bravieri reiterates the argument that his trial counsel was
ineffective under Strickland v. Washington, 466 U.S. 668 (1984), because he failed
to assure that Zuniga’s counsel obtained a forensic analysis of the fingerprint found
on the shotgun and, as a consequence, prejudiced Bravieri. He also contends, for
the first time on appeal, that his lawyer’s agreement to work with Zuniga’s counsel
in preparing for trial created a “conflict of interest.” Thus, he says, prejudice to his
defense should have been presumed.
Our review of Bravieri’s convictions is governed by AEDPA. Under that act,
a federal court cannot grant relief under § 2254 to a state prisoner whose federal
claims have been adjudicated on the merits by the state courts unless that
adjudication “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or was “based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d); see Brown v. Payton,
544 U.S. 133, 141 (2005); Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006). We
apply those principles by reviewing the decision of the last state court to rule on the
merits of the petitioner’s claim: here, the opinion of the Appellate Court of Illinois
affirming the denial of postconviction relief. See Garth v. Davis, 470 F.3d 702, 710
(7th Cir. 2006). The district court’s order denying Bravieri’s petition under § 2254
is subject to de novo review. See Charlton, 439 F.3d at 372.
As an initial matter the state contends that Bravieri’s § 2254 petition was
untimely. The state says that, in accord with the district court’s order dismissing
Bravieri’s original petition without prejudice, Bravieri was required to reinstate his
federal petition within 30 days after his state postconviction litigation ended in
October 2004. But the order granting Bravieri’s motion to dismiss did not specify
that he was required to reinstate the petition within 30 days following completion of
the state-court proceedings (even though his motion requested permission to
reinstate within that timeframe). Thus the district court allowed the petition to
proceed despite Bravieri’s moving to reinstate it over eight months later, in June
2005. Although the district court’s reasoning is unclear, it appears that the judge
believed either that she erred in dismissing the petition in the first instance or that
she had never entered a final order. This court’s precedent casts some doubt on the
veracity of that decision. See Arrieta v. Battaglia, 461 F.3d 861, 863 (7th Cir. 2006).

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No. 06-2395 Page 5
We need not resolve this issue, however, because Bravieri’s petition is without
merit.
Bravieri contends that his trial counsel was ineffective because he relied on
Zuniga’s counsel to obtain a forensic analysis of the fingerprint found on the
shotgun. According to Bravieri, his lawyer failed to assure that the tasks assigned
to Zuniga’s lawyer were completed and should have recognized that Zuniga’s
counsel was incapacitated. But for counsel’s failures, Bravieri says, it is “clear
there is a strong probability the trial might have progressed differently and the
results differed.” In the district court Bravieri acknowledged that his ineffective
assistance claim is governed by Strickland, which holds that a defendant must
show both that his counsel’s performance fell below an objective standard of
reasonableness and that he was prejudiced as a result. 466 U.S. at 687-88. On
appeal, Bravieri essentially recognizes that his claim is governed by Strickland.
To establish prejudice under Strickland, a petitioner must show that but for
counsel’s errors there is a reasonable probability that the result of his trial would
have been different. 466 U.S. at 694. The court reviewing the claim, however,
“need not determine whether counsel’s performance was deficient before examining
the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id.
at 697. If it is determined that the petitioner was not prejudiced, the court need not
reach the performance issue. United States ex rel. Cross v. DeRobertis, 811 F.2d
1008, 1014 (7th Cir. 1987); see, e.g., Walker v. Litscher, 421 F.3d 549, 558 (7th Cir.
2005). Federal courts do not apply the principles of Strickland directly to a claim of
ineffective assistance that has been adjudicated by the state courts; instead, the
role of the federal courts is limited to analyzing whether the state courts reasonably
applied federal law in concluding that trial counsel was not constitutionally
ineffective. Conner v. McBride, 375 F.3d 643, 657 (7th Cir. 2004).
With respect to this theory, the Appellate Court of Illinois identified
Strickland as the governing standard and, without reaching the performance issue,
determined that Bravieri failed to establish prejudice resulting from counsels’
failures to have the fingerprint on the shotgun analyzed. In particular, the court
explained:
Whether that fingerprint belonged to Bravieri or Sarlo does not determine
who killed Gasic. Ault described a struggle between [Bravieri, Zuniga,] and
Sarlo . . . . There was ample opportunity for the fingerprints of both men to be
on the shotgun, regardless of who was the aggressor and who was defending
himself. Also, as there was only one fingerprint on the shotgun, which had
been shot three times, it is obvious that every finger that touched the
shotgun was not leaving an extractable fingerprint. In any event, any

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fingerprints that might show up on the shotgun would not undercut Ault’s
testimony that she heard Bravieri tell Gasic that “she just had to go,” and
then heard two shotgun blasts; that Bravieri came into the living room and
shot at her; and that Bravieri then told Sarlo that “he had to go too.”
Bravieri, Nos. 1-02-0442 & 1-02-0443, at 15. Bravieri does not specify any other
failures of either counsel as relevant to his defense, except to argue generally that
“when the facts of this case are viewed in their totality,” prejudice was inevitable.
Neither does Bravieri contend in his petition to the district court or in his brief to
this court that the state court’s application of Strickland to counsels’ failures to
analyze the fingerprint evidence was unreasonable.
Instead, Bravieri now tries to back away from Strickland by suggesting that
prejudice should be presumed under Cuyler v. Sullivan, 446 U.S. 335 (1980),
because, he says, his trial counsel’s agreement to share the burden of trying the
cases created a conflict of interest. But the agreement between Bravieri’s and
Zuniga’s counsels to share investigative tasks is not the type of “actual conflict of
interest” that triggers a presumption of prejudice under Cuyler. A presumption of
prejudice is appropriate only if counsel actively represented conflicting interests
and the “actual conflict of interest adversely affected his lawyer’s performance.”
Cuyler, 446 U.S. at 348. An actual conflict of interest exists only if counsel’s
motivation for his strategic decisions derived from a desire to advance an interest
adverse to the petitioner’s. Burger v. Kemp, 483 U.S. 776, 784-85 (1987). Moreover,
an actual conflict of interest means “precisely a conflict that affected counsel’s
performance—as opposed to a mere theoretical division of loyalties.” Mickens v.
Taylor, 535 U.S. 162, 171 (2002) (emphasis in original). Here, it is undisputed that
the lawyers for Bravieri and Zuniga agreed to share some pretrial preparation, that
Zuniga’s counsel failed to uphold his end of the deal, and that Bravieri’s counsel
subsequently failed to follow through. Bravieri, however, points to nothing that
supports his contention that counsel’s deficiencies were the result of his desire to
advance Zuniga’s interest over Bravieri’s, nor does he identify how either of the
lawyers represented conflicting interests. Instead, he argues that a conflict of
interest theoretically exists merely because the lawyers worked together on the
case. But the increased risk of prejudice resulting from lawyers with competing
interests working together, by itself, does not give rise to presumption of prejudice.
Burger, 483 U.S. at 783; Holleman v. Cotton, 301 F.3d 737, 743 (7th Cir. 2003).
This argument therefore is frivolous.
AFFIRMED.

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