John Lavin v. Dave Rednour

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 20, 2012 *
Decided January 20, 2012
Before
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐3318
JOHN LAVIN,
Petitioner‐Appellant.
v.
DAVE REDNOUR,
Respondent‐Appellee.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 04 C 5175
Joan B. Gottschall,
Judge.
O R D E R
John Lavin, an Illinois state prisoner serving a 40‐year sentence for attempted first‐
degree murder, appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. The district court granted a certificate of appealability on three issues: (1) whether
the trial evidence supports Lavin’s conviction for attempted murder, (2) whether his
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
*After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. A PP. P.
34(a)(2)(C).

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No. 10‐3318 Page 2
sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), and (3) whether trial counsel
was ineffective. We affirm.
Lavin consented to a bench trial after being indicted for attempted murder,
aggravated battery, and aggravated battery of a senior citizen. The victim, 81‐year‐old
Gilbert Costello, testified at trial that he was brutally attacked in early 1997 and sustained
significant injuries. An eyewitness fingered Lavin, then in his late 30s, as the assailant and
testified that the two men had pushed each other before Lavin punched Costello in the face,
knocking him to the ground. As Costello lay on the ground, the witness said, Lavin
stomped on “something” three times. The witness went over to Costello and saw that his
“face was pretty messed up” and his mouth “full of blood.” This account was corroborated
by a paramedic and a police officer, who described Costello’s face as swollen and bloody.
Costello was hospitalized for nearly two months and, upon his release, moved into a
nursing home, having suffered damage to his mobility, speech, and memory.
Lavin’s defense at trial was that the prosecution had mistakenly targeted him as the
attacker, though he could not implicate anyone else. He had seen Costello lying on the
ground, he testified, and tried to help him but backed off after the eyewitness accused him
of attacking Costello. The eyewitness, however, identified in open court Lavin as the
assailant, and the state produced stipulated testimony by a forensic scientist that DNA from
blood on Lavin’s boots was consistent with Costello’s.
The trial court found Lavin guilty of attempted murder, concluding that he inflicted
Costello’s injuries and had specific intent to kill. That intent was evident, the court found,
from the disparity in size and age between the two men—Lavin was not only more than 40
years younger than Costello but also appeared to be about 70 pounds heavier. The court
also emphasized the aggravated nature of the attack: Lavin “stomped” Costello three times
with his heel. One, maybe even two, of those stomps might be attributed to “rage,” the court
said, but the third stomp amounted to attempted murder. The court later sentenced Lavin to
40 years’ imprisonment for attempted murder, extending the term beyond the 30‐year
statutory maximum, as permitted by 730 ILCS 5/5‐8‐2 (1998), because Lavin’s victim was
more than 60 years old, see id. 5/5‐5‐3.2(b)(4)(ii) (1998).
On direct appeal, the Illinois Appellate Court rejected Lavin’s arguments that (1) the
evidence did not support a finding that he had an intent to kill and (2) his extended‐term
sentence violated Apprendi because the victim’s age had not been proven beyond a
reasonable doubt. The Illinois Supreme Court denied Lavin’s petition for leave to appeal.
Lavin petitioned for state postconviction relief, see 725 ILCS 5/122‐1, alleging that his
trial counsel provided ineffective assistance by failing to raise the defense of voluntary

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No. 10‐3318 Page 3
intoxication. At the time of Lavin’s trial, voluntary intoxication was a defense under Illinois
law if it rendered a defendant unable to form specific intent. 720 ILCS 5/6‐3 (1998).
Witnesses at trial testified that Lavin seemed drunk the night of the attack, and Lavin said at
sentencing that he “drank more than five 40 ounces that day.” But at trial Lavin had
testified that he drank only “two 40‐ouncers”—the last one more than four hours before the
attack—and was not under the influence of alcohol by the time of the attack. The state trial
court denied the postconviction petition, noting that Lavin’s trial attorney strategically
chose to forego a voluntary‐intoxication defense in order to pursue one of mistaken identity.
According to the court, the defenses of voluntary intoxication and mistaken identity are
“mutually exclusive,” and counsel “had to pick one theory to go forward with.” The court
thus found that Lavin had not shown deficient performance or prejudice under Strickland v.
Washington, 466 U.S. 668 (1984).
Lavin appealed this ruling, and his counsel moved to withdraw. After reviewing the
record and Lavin’s pro se responses, the Illinois Appellate Court found no issues of
arguable merit, granted counsel’s motion to withdraw, and affirmed the trial court’s
judgment. The Illinois Supreme Court denied leave to appeal. Lavin then rehashed his
Apprendi claim in a second petition for relief, which the trial court construed as a successive
petition for postconviction relief and summarily dismissed. The Illinois Appellate Court
affirmed that judgment, and the Illinois Supreme Court again denied leave to appeal.
Lavin next petitioned in federal court for a writ of habeas corpus, asserting among
other claims the three that form the basis of this appeal. The district court denied the
petition on all three claims. First, the court concluded that the Illinois Appellate Court was
not “unreasonable in inferring that Lavin intended to kill Costello at the time of the
assault.” Second, the court rejected Lavin’s Apprendi argument, concluding that the Illinois
Appellate Court had reasonably denied that argument because the trial court found beyond
a reasonable doubt that the victim was more than 60 years old. Third, the court found trial
counsel’s decision to pursue a mistaken‐identity defense “easily justifiable” because only
one eyewitness claimed to have seen Lavin attack Costello, and mistaken identity, unlike
intoxication, “would have resulted in acquittal as to all of the charges against Lavin.”
Our review is constrained by the Antiterrorism and Effective Death Penalty Act of
1996. 28 U.S.C. § 2254(d). We may grant Lavin’s petition for relief only if the state courts’
adjudication of his claims on the merits was contrary to clearly established precedent from
the Supreme Court, was an unreasonable application of that precedent, or was based on an
unreasonable determination of the facts in light of the evidence. See id. § 2254(d)(1) & (2);
Harrington v. Richter, 131 S. Ct. 770, 785 (2011); Morales v. Johnson, 659 F.3d 588, 599 (7th Cir.
2011).

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No. 10‐3318 Page 4
Lavin first contends that there is insufficient evidence that he had specific intent to
kill, an essential element of attempted first‐degree murder in Illinois. See People v. Hopp, 805
N.E.2d 1190, 1197 (Ill. 2004). His conviction, he argues, should have been overturned under
Jackson v. Virginia, 443 U.S. 307, 319 (1979), which requires reviewing courts to ask whether
“any rational trier of fact could have 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 Illinois law, specific
intent to kill may be inferred from surrounding circumstances, including the character of an
attack, the extent of a victim’s injuries, or even a disparity in size or strength between victim
and attacker. See Nelson v. Thieret, 793 F.2d 146, 148 (7th Cir. 1986); People v. Williams, 649
N.E.2d 397, 403 (Ill. 1995); People v. Scott, 648 N.E.2d 86, 89 (Ill. App. Ct. 1994). As the Illinois
Appellate Court noted, the trial judge here based his decision to convict Lavin on his greater
size and age as well as the aggravated nature of the attack. And Costello’s injuries were
extensive and permanent. Lavin asserts that nobody saw him stomp Costello (the
eyewitness saw him stomp merely “something”) and that no medical evidence proves that
he trampled upon Costello. But the trial judge, as trier of fact, reasonably inferred that Lavin
stomped on Costello, and the appellate court, required to view the evidence in the light
most favorable to the prosecution, did not violate Jackson by upholding that decision.
Lavin next argues that the state trial court erroneously deprived him of his right to a
jury under Apprendi, 530 U.S. at 490, when it engaged in judicial factfinding by increasing
his sentence beyond the statutory maximum. There are two preliminary problems with this
argument. First, Lavin consented to a bench trial, so Apprendi requires only that the trial
judge found beyond a reasonable doubt any fact relied on to increase the sentence above the
statutory maximum. See Mack v. McCann, 530 F.3d 523, 536 (7th Cir. 2008); Jones v. Hulick,
449 F.3d 784, 791 (7th Cir. 2006); United States v. Brough, 243 F.3d 1078, 1078–79 (7th Cir.
2001). Second, although Lavin now challenges all the aggravating factors applied to his
sentence, in state court he limited his Apprendi claim to challenging the sentencing increase
based on his victim’s age. He did not raise his additional Apprendi arguments first in state
court, so they are procedurally barred. See Ward v. Jenkins, 613 F.3d 692, 696 (7th Cir. 2010);
Byers v. Basinger, 610 F.3d 980, 985 (7th Cir. 2010).
Lavin reiterates that the trial judge did not find beyond a reasonable doubt that
Costello was more than 60 years old. We note that there was some confusion in the state‐
court decisions: the trial judge said during the guilt phase that the charge of battery of a
senior citizen “merge[d]” with attempted murder—even though that charge has an
additional element, the victim being 60 or older. The state appellate court apparently
overlooked this misstatement and reasoned that the trial judge, by finding Lavin guilty of
battery of a senior citizen, necessarily found beyond a reasonable doubt that Costello was 60

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or older. Significantly, however, the appellate court also highlighted the judge’s remark at
the guilt phase “that the victim was over 80 at the time of the attack,” and the trial judge
himself commented at sentencing that Costello was more than 80 years old “as a matter of
fact in this case.” In any event, Costello’s age was never seriously in dispute, as the
government notes, so any potential error is at most harmless. See Washington v. Recuenco, 548
U.S. 212, 222 (2006); United States v. Hollingsworth, 495 F.3d 795, 806 (7th Cir. 2007).
Finally, Lavin argues that his trial counsel was ineffective for failing to raise the
defense of voluntary intoxication. To prevail, Lavin must show that the state appellate court
unreasonably applied Strickland in evaluating the reasonableness of and prejudice caused by
his counsel’s performance. Harrington, 131 S. Ct. at 788; Morgan v. Hardy, No. 10‐3155, 2011
WL 5319665, at *9 (7th Cir. Nov. 7, 2011). Lavin cannot make that showing. The state
appellate court, after reviewing the record as well as Lavin’s postconviction petition,
reasonably found that this issue lacked merit. There is no evidence to overcome the
presumption that Lavin’s counsel exercised sound trial strategy. See Yu Tian Li v. United
States, 648 F.3d 524, 528 (7th Cir. 2011). Not only would an intoxication defense conflict with
the mistaken‐identity defense that counsel chose to pursue, but intoxication would not have
even been a defense to aggravated battery. See People v. Rodgers, 780 N.E.2d 352, 356 (Ill.
App. Ct. 2002). Moreover, the intoxication defense would have been at odds with Lavin’s
testimony that he was not under the influence of alcohol at the time of the attack. As we
have said, “[i]t is difficult to see how a collateral attack based on the proposition that the
petitioner’s own trial testimony was a pack of lies has any prospect of success.” Escamilla v.
Jungwirth, 426 F.3d 868, 870 (7th Cir. 2005).
AFFIRMED.

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