
    UNITED STATES ex rel. Moses CATHEY, Petitioner, v. James G. COX, Warden, Logan Correctional Center, Respondent.
    No. 01 C 6471.
    United States District Court, N.D. Illinois, Eastern Division.
    May 22, 2002.
    
      Moses Cathy, Lincoln, IL, Pro se.
    Jay Paul Hoffman, Chief of Criminal Appeals, Illinois Attorney General’s Office, Chicago, IL, for Respondent.
   MEMORANDUM OPINION AND ORDER

BUCKLO, District Judge.

In 1994, Moses Cathey and Sidney Perry were arrested and charged with armed robbery and murder in connection with a holdup that resulted in a fatal shooting at a convenience store in Chicago, Illinois. Mr. Perry was convicted of murder and robbery, and Mr. Cathey was convicted of armed robbery, but acquitted of felony murder. He was sentenced to consecutive terms of 10 and 30 years in prison on two counts of armed robbery. He appealed directly on several grounds through the Illinois system, and exhausted his state postconviction remedies on some but not all of his claims. This is discussed below. He petitions for a writ of habeas corpus, and I deny the petition.

In August 2001, Mr. Cathey filed a petition for habeas corpus under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), but at the request of the state, I dismissed his petition without prejudice under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), because it contained both exhausted and unexhausted claims. In that petition, he argued that: (1) the. trial judge erroneously dismissed his state post-conviction petition; (2) he was denied effective assistance of both trial and appellate counsel in violation of his constitutional rights, and (3) he was denied due process and equal protection when the Illinois Appellate Court allowed the legally inconsistent verdicts to stand. The theory behind (2) was apparently that counsel failed to attack the consecutive sentences. The theory behind (3) was that Mr. Cathey could not have been consistently convicted of armed robbery and also acquitted of felony murder. From my review of the record, it does not appear that (1) stated an additional ground for relief part from those indicated in (2) and (3).

The state urged dismissal of the original petition without prejudice, noted that the Illinois Appellate Court had ruled that the Illinois Circuit Court’s dismissal of the inconsistent verdicts claim on state postcon-viction collateral review was proper, but it reversed the lower court’s dismissal of the consecutive sentences claim. The state wanted me to give Mr. Cathey a chance to exhaust that claim, and I did.

Mr. Cathey now files an amended petition. In it, he restates his three grounds, recounts the above history, but says that “the issue of inconsistent verdict ... is the basis of [petitioner’s] habeas corpus petition,” and asks for “leave to amend his habeas corpus petition p.s. [sic] Ground two, petitioner was denied effective assistance of counsel ... [by failure of counsel] to raise the issue of legally inconsistent verdicts.” He asks for counsel to “further represent petitioner’s claim.” (I denied the motion for appointment of counsel.) There is some unclarity here as to what Mr. Cathey means: he offers three (really two) claims, one exhausted and one not, and suggests that the state’s “statement [that it would be inappropriate to presume that petitioner intended only to raise the inconsistent verdicts claim] can be supported by petitioners’ petition.” But then, as noted, he twice expressly says that he means to proceed on the grounds of the inconsistent verdicts claim alone, and he asked for appointed counsel to represent his “claim” [singular]. Obviously he is not a legal scholar, but I believe that he wants me to decide his petition on the inconsistent verdict grounds alone, waiving any claim based on the consecutive sentences ground for purposes of this petition. I do so.

To establish ineffective assistance of counsel, Mr. Cathey must demonstrate that: (1) his counsel’s performance was so deficient as to fall below an objective standard of reasonableness under “prevailing professional norms” and (2) the deficient performance so prejudiced the defense as to deny him a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish the deficiency of counsel’s performance, Mr. Cathey also must overcome the strong presumption that “the challenged action might be considered sound ... strategy.” Id. at 689, 104 S.Ct. 2052. Finally, even if it was not professionally reasonable, a decision by counsel “does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691, 104 S.Ct. 2052.

Mr. Cathey’s claim is that his trial and appellate counsel rendered ineffective assistance by not raising the grounds that it was legally inconsistent of the jury to acquit him of felony murder but convict him of the underlying felony. The idea that the verdicts are inconsistent seems to be the reverse of the rule that “[accountability for felony murder ... exists only if defendant may be deemed legally responsible for the felony that accompanies the murder.” People v. Shaw, 186 Ill.2d 301, 239 Ill.Dec. 311, 713 N.E.2d 1161, 1174 (1999). Mr. Cathey argues, contrariwise, that if he is deemed legally responsible for the underlying felony, he must be found guilty of felony murder for any homicides occurring during those felonies, so the verdicts were inconsistent.

There is no rule that a guilty verdict in a felony requires a guilty verdict in any charged homicide associated with the felony, much as prosecutors might like to have such an instruction. The verdicts here are not inconsistent, that is, they do not “necessarily involve the conclusion that the same essential element is found to both exist and not exist.” In Interest of Sanders, 81 Ill.App.3d 843, 37 Ill.Dec. 25, 401 N.E.2d 1118, 1122 (1980). Here, the not-guilty verdict is not a finding that some essential element of the crime of armed robbery did not exist but a finding that the elements of felony murder were not proven as to Mr. Cathey. People v. Austin, 264 Ill.App.3d 976, 202 Ill.Dec. 46, 637 N.E.2d 585, 587 (Ill.App.1994).

Moreover, even if the verdicts were inconsistent, in Illinois, “legal inconsistency in the finding should not, on a per se basis, require reversal of the conviction.” People v. O’Malley, 108 Ill.App.3d 823, 64 Ill.Dec. 333, 439 N.E.2d 998, 1004 (1982). The question is rather whether the totality of circumstances show that the defendant was not found guilty beyond a reasonable doubt. Id. Furthermore, a logically inconsistent verdict may also suggest that the jury was “exercis[ing] its historic power of lenity.” People v. Dawson, 60 Ill.2d 278, 326 N.E.2d 755, 756-57 (1975). Therefore, at least where, as here, any purported inconsistency is to the defendants’ benefit, it cannot be ineffective assistance of counsel not to raise the issue in challenging the verdict. “It is not deficient performance to fail to raise an argument with no real chance of success.” Hough v. Anderson, 272 F.3d 878, 898 n. 8 (7th Cir.2001). Mr. Cathey’s petition for habeas corpus is Denied. 
      
      . It is not clear whether the Illinois trial court has resentenced Mr. Cathey, but the Illinois Appellate Court did find that the consecutive sentences were improper under Illinois law.
     