Angelini v. Cowan

18 F. App'x 387
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 17, 2001
DocketNo. 01-1078
StatusPublished

This text of 18 F. App'x 387 (Angelini v. Cowan) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Angelini v. Cowan, 18 F. App'x 387 (7th Cir. 2001).

Opinion

ORDER

Robin Tony Angelini was convicted in Illinois state court of sexually assaulting a woman in Quincy, Illinois, and sentenced to three consecutive terms of 60 years’ imprisonment. After Angelini exhausted his state-court remedies, he sought a writ of habeas corpus from a federal district court, which denied his petition. Angelini argues on appeal that he is entitled to a new trial because his counsel was ineffective and because he did not voluntarily waive counsel at sentencing. We affirm in part, vacate in part, and remand for further proceedings.

In the early morning of May 20, 1996, a man broke into the victim’s apartment, tied an electrical cord around her neck, threatened to kill her if she screamed, and penetrated her anally and vaginally with his finger. The attacker then dragged the victim into a bathroom and tightened the cord around her neck until she lost consciousness. The victim eventually regained consciousness, called 911, and remained in her bathroom until authorities arrived. The victim had marks around her neck from the cord and suffered a ruptured eardrum.

Quincy police investigators, aware that Angelini had pleaded guilty in 1982 to committing a brutal sexual assault, tabbed him as a suspect. The police also suspected Angelini because one of the investigating officers had spotted him late at night near the victim’s apartment five days before the attack. The victim did not see her attacker but described his voice as deep and gravelly. She also told the police that she thought the attacker might have been black. Police then brought in Angeli-ni, who is white, for questioning. The victim later identified Angelini’s voice as that of her attacker.

Police investigators learned that nearly four months earlier the victim’s apartment had been burglarized while she was sleeping. The victim had reported the burglary to the police, and days later told police that she had received harassing phone calls from an anonymous caller with a deep, gravelly voice. The caller told her that he had her purse and pairs of her panties. The victim found her panties on the antennas of cars at her place of employment a few days later. The victim’s name and telephone number were handwritten on the panties. The police still had the panties in its possession and ar[389]*389ranged for a handwriting expert to compare the writing on the panties with samples of Angelini’s handwriting obtained in connection with his 1982 conviction. The expert’s comparison was inconclusive, but after obtaining more recent samples, he concluded that it was Angelini’s handwriting on the panties.

In August 1996 prosecutors filed an information charging Angelini with two counts of aggravated criminal sexual assault. Police arrested him in Eaton County, Michigan, one month later. The state trial court appointed counsel for Angelini in September 1996. In October 1996 An-gelini asked to proceed pro se, but then withdrew the request. In December 1996 the court granted the state’s motion to amend the information, increasing the number of counts to seven, including two additional counts of aggravated criminal sexual assault, two counts of criminal sexual assault, and one count of home invasion. The court also denied several defense motions, including motions in limine to prevent the state from using modus operandi evidence linking the 1982 and 1996 attacks and to suppress the victim’s voice identification.

The trial commenced on December 16, 1996. The state called several witnesses, including the victim, investigating officers, the emergency room physician who examined the victim after the attack, the handwriting expert, and the 1982 assault victim. The state had no physical evidence or eyewitness testimony linking Angelini to the attack. On direct examination the victim testified that her initial statement to the police that the assailant might have been black was merely an impression at that time based upon the timbre of his voice. Defense counsel did not question the victim about this issue, nor did he mention her initial voice identification during his closing argument. The state elicited detailed testimony from the 1982 victim about her attack, in which Angelini broke into the victim’s apartment, bound her hands, beat her, choked her, inserted his finger into her vagina, and anally raped her. The state argued to the jury that the two crimes had a similar modus operandi, suggesting that Angelini committed the second crime.

Defense counsel addressed the difficult circumstances surrounding the case during his closing argument. He acknowledged, through a long and descriptive narrative, the heinous nature of the 1982 crime and the courage exhibited by the victim of that attack. Counsel stressed to the jury that, although Angelini’s actions in 1982 were “despicable,” he was not on trial for that crime. Counsel repeatedly expressed sympathy and admiration for the victims of both crimes, and asked the jury to remain objective even though Angelini looked “guilty,” “cold,” “like he could care less” about the victims, and “like a rapist.” Defense counsel’s closing argument was unavailing — the jury found Angelini guilty of all charges.

Defense counsel moved for a new trial. On January 13,1997, Angelini filed his own motion for a new trial and a “Motion for Leave to Withdraw Counsel.” The court granted Angelini’s motion to proceed without counsel over the state’s objection, but denied his request for a new trial. The court then sentenced him to three consecutive terms of 60 years’ incarceration.

Angelini appealed pro se to the Illinois appellate court, raising nine challenges to his convictions, including several claims that his counsel performed ineffectively. After the state filed a response, Angelini raised for the first time in reply that he did not voluntarily waive counsel. The court affirmed his convictions without addressing the waiver-of-counsel issue, and later denied his request for a rehearing. [390]*390The Illinois Supreme Court summarily denied his petition for leave to appeal.

In August 1999 Angelini petitioned for a writ of habeas corpus in federal district court. See 28 U.S.C. § 2254. His petition raised five grounds for relief including ineffective assistance of counsel and involuntary waiver of counsel. The state argued in its response that Angelini procedurally defaulted his waiver-of-counsel claim because he did not properly raise the issue on direct appeal. The district court denied Angelini’s petition without reviewing the transcripts of his trial. In doing so, the court concluded that Angelini had not procedurally defaulted his waiver-of-counsel argument, but rejected that claim on its merits. Angelini filed a notice of appeal, which the court construed as a request for a certificate of appealability. In January 2001 the court granted Angelini’s request and certified two issues for appeal: (1) whether he voluntarily waived counsel at sentencing, and (2) whether he received ineffective assistance of counsel.

The state renews its argument raised to the district court that Angelini procedurally defaulted his waiver-of-counsel claim. As we noted in Spreitzer v. Schomig, 219 F.3d 639, 646 (7th Cir.2000), Illinois Supreme Court Rule 341(e)(7) states that arguments presented in Illinois courts for the first time in a reply brief are waived. Angelini did not raise the waiver-of-counsel issue until his reply brief to the Illinois appellate court.

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18 F. App'x 387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/angelini-v-cowan-ca7-2001.