CA7 — memorandum disposition

Leflord v. Pollard, No. 06-1826 — The court affirmed the denial of a § 2254 petition claiming ineffective assistance of counsel.  During voir dire at the petitioner’s trial for reckless homicide during a police chase, a member of the venire explained he had been attacked on a city bus.  The petitioner’s lawyer got the juror to explain that he felt vulnerable and intimidated during the attack.  The juror also explained that he had a close friend who was a police officer, but that that would not affect his deliberations.

The petitioner claimed that he was denied his right to trial by an impartial jury.  The court ruled this claim to be procedurally defaulted because the petitioner did not raise it in state court.

He also claimed that trial counsel was ineffective for failing to strike the juror.  After following up on a potential source of bias, the lawyer made the strategic decision not to strike him.  That strategic decision was entitled to deference under Strickland.  Accordingly, the state courts did not unreasonably reject the claim.

Toliver v. McCaughtry (CA7)

Toliver v. McCaughtry, No. 06-3316 (first-degree murder, noncapital) — The petitioner had been convicted in state court in Wisconsin for first-degree murder as an accomplice.  He received life in prison.  He pursued his direct appeal pro se.  The Wisconsin Court of Appeals rejected his sufficiency of the evidence argument over the dissent of one judge, and the Wisconsin Supreme Court denied review.  He exhausted his state post-conviction remedies, and then filed a 2254 petition.  In his 2254 petition, he argued he had been denied the right to counsel on direct appeal.  The district court granted relief and ordered the state to appoint counsel for him to file a new appeal.

The petitioner returned to the trial court with a new petition for post-conviction relief; this was permissible as part of a direct appeal under Wisconsin law.  He asserted that trial counsel was ineffective for failing to call two witnesses at the trial who would have testified that the principal acted alone.  The trial court denied the motion, and the petitioner appealed.  The state court affirmed both the conviction and sentence (as part of the relief granted in the first 2254 proceedings) as well as the denial of the petition for post-conviction relief.  He exhausted his remedies as to these claims, then filed another 2254 petition.

Ultimately, six issues were certified for appeal.  As for trial counsel’s failure to call the petitioner’s wife and his cousin to testify on his behalf, the court first observed that the state courts had not passed on the deficient-performance aspect of this claim.  Accordingly, the court reviewed this aspect of the IAC claim de novo.  To be sure, these witnesses might have been biased in favor of the petitioner.  Yet the nature of the petitioner’s defense at trial — that he was not an accomplice to the shooting — and the probative nature of the testimony the wife and cousin might have furnished were too strong for reasonably competent trial counsel to ignore.  As for the cousin, trial counsel did not even interview the cousin to evaluate how he might perform as a witness.  This failure was particularly egregious because these two individuals were the only ones who could have supported the petitioner’s claim that he actually tried to dissuade the principal from shooting the victim.

The court also ruled that the state courts’ conclusion on the prejudice prong was objectively unreasonable.  The petitioner’s story was that he tried to break up a fight between the principal and the victim, tried to redirect the principal’s ire by making himself a second potential victim, and that when the principal shot the victim, he reacted with anger and surprise instead of encouragement.  Had the wife and the cousin testified at the trial, they would have bolstered the petitioner’s claims regarding his true motives, thereby negating the specific intent necessary to sustain a conviction on a theory of accomplice liability.  The state appellate court ignored evidence from the cousin’s affidavit that suggested that the principal acted against the petitioner’s express wishes.

Moreover, the court faulted the state courts for characterizing the evidence against the petitioner as “overwhelming.”  Under Wisconsin law, the state had to prove that the petitioner intended to abet the murder.  The state’s evidence on intent was weak; failure to bolster the defense on that score could have affected the outcome of the trial.  The state courts went astray by evaluating the wife’s and cousin’s affidavits in a vacuum, apart from the overall context of the evidence at trial and the petitioner’s theory of the case.  The court remanded for further consideration of the IAC claims.

The state appellate court’s failure to appreciate the nature of the petitioner’s defense at trial also led it to err on a Brady claim.  The prosecution failed to disclose that an eyewitness had been attempting to plea bargain with it in order to settle drug charges pending against him in another county.  The eyewitness had offered one version of the events in a proffer made to the prosecution as part of plea negotiations, and another at trial.  If the prosecution had disclosed this proffer to the petitioner, the court ruled, the jury might have been inclined to believe the petitioner.  Consequently, the state courts unreasonably ruled that the proffer was not material under Brady.

Washington v. U.S. (CA7)

Washington v. U.S., No. 08-2787 (CA7) — The Seventh Circuit granted permission to file a delayed appeal, in the guise of ruling on an application for permission to file a second or successive 2255 motion.  In November 2005, the defendant was sentenced to 108 months in prison after pleading guilty to bank robbery.  His plea agreement contained a waiver of the right to appeal, which the defendant followed.  Instead, in April 2008 he filed a motion under Fed. R. Crim. P. 52(b) asking the court to recalculate his sentence in light of what he considered to be an erroneous application of the Guidelines.  The district court denied the motion, reasoning it was an improperly labeled 2255 motion, which he was improperly using as a substitute for an appeal.  But the Seventh Circuit reasoned that because the defendant was not seeking constitutional review of his sentence, the district court erred in characterizing his 52(b) motion as a 2255 motion.  Furthermore, the district court failed to warn the defendant that it was recharacterizing his 52(b) motion, as Castro v. United States, 540 U.S. 375 (2003), required it to do.  Accordingly, the Seventh Circuit construed the SOS application as a notice of appeal and returned it to the district court for processing.

Hereford v. Warren (CA6)

Hereford v. Warren, No. 07-1507 (CA6) — The Sixth Circuit reversed the district court’s grant of habeas relief with respect to a claim that excluding defense counsel from a sidebar discussion during a bench trial violated the petitioner’s right to counsel.

Hereford and two codefendants were charged with robbing a pizzeria.  One codefendant was tried separately; the others were tried together, before a jury constituted to judge the guilt of the remaining codefendant, leaving Hereford’s guilt to be determined by the judge alone.  The seperately tried codefendant testified at Hereford’s trial.  When the prosecutor called this other codefendant to the stand, the other codefendant wanted to consult with his lawyer.  During this delay in the proceedings, Hereford’s lawyer went to an arraignment in another courtroom.  This left the judge, the prosecutor, and the cotried codefendant’s lawyer to discuss how to proceed when the separately tried codefendant wanted to consult his own lawyer.  Ultimately Hereford was convicted and sentenced to 9 to 20 years in prison.

The sidebar conference was not included in the transcript of the trial, but the Michigan Court of Appeals allowed Hereford’s lawyer to raise a claim related to it after the lawyer uncovered a videotaped recording of the trial.  The Michigan Court of Appeals affirmed the conviction but did not initially discuss the ex parte bench conference claim.  On rehearing, the court ruled that any error was harmless beyond a reasonable doubt because the balance of the evidence at trial supported Hereford’s conviction.  The Michigan Supreme Court declined to review the case.

The district court ruled that harmless-error review was not appropriate for this claim, and granted the writ because Hereford had been denied counsel at a critical stage in the proceedings.  The Sixth Circuit reversed, first noting that lower-court decisions may “inform the analysis of Supreme Court holdings to determine whether a legal principle had been clearly established by the Supreme Court” with respect to the AEDPA limitation on relief.

Under Arizona v. Fulminante, 499 U.S. 279 (1991), the question is whether the Michigan courts correctly identified Hereford’s claim as amenable to harmless-error review.  Complete denial of counsel at a “critical stage” of the proceedings amounts to structural error under United States v. Cronic, 466 U.S. 648 (1984).  “The Supreme Court, however, has never indicated that an improper ex parte conference between the judge and the prosecutor during trial amounts to Cronic error.”  Cronic error — structural error — might occur if “significant consequences” might result from the denial of counsel.  But the ex parte conference at issue here was merely “administrative,” so the consequences were “de minimis.”  Although the “significant consequences” test was not clearly established, it lent credence to the idea that the Michigan courts’ rejection of this claim was not an unreasonable application of federal law.

Furthermore, the Michigan courts did not unreasonably conclude that excluding counsel from the bench conference was harmless beyond a reasonable doubt.  It was unclear what harmless-error standard the Michigan Court of Appeals had applied, so the court applied the more prosecution-friendly standard of Brecht v. Abrahamson, 507 U.S. 619 (1993).  Excluding counsel from the bench conference did not have a substantial and injurious effect on the verdict, because Hereford’s trial was a bench trial, because the trial judge was fully able to assess the credibility of the separately tried codefendant and ample other evidence supported Hereford’s conviction.

Stallings v. U.S. (CA7)

Stallings v. U.S., No. 06-3914 (CA7) — Yesterday the Seventh Circuit granted a habeas petitioner the functional equivalent of a Paladino remand on an appeal from the denial of a 2255 motion in the district court.  The petitioner had been convicted of possession of a firearm by a convicted felon.  He was sentenced in November 2004, after Blakely v. Washington, 542 U.S. 296 (2004), was decided, to 188 months in prison.  Given his criminal history, Stallings faced a 180-month mandatory minimum sentence.  The applicable Guidelines range was 188 to 235 months.  The sentencing judge explained, “I believe I am required to impose a certain, at least minimum sentence….  I think the sentence is appropriate.  If it turns out I’m wrong, we’ll do it again.”

Stallings filed a direct appeal, and the briefing took place after the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), and the Seventh Circuit decided its post-Booker cases Paladino and Schlifer.  Appellate counsel did not raise a Booker claim, and the Seventh Circuit affirmed the conviction and sentence in December 2005.

In February 2006, Stallings filed a 2255 motion, raising a claim of ineffective assistance of counsel on direct appeal regarding appellate counsel’s failure to raise a Booker claim.  The district court denied the motion, ruling that Stallings was “foreclosed from raising” a Booker claim in a 2255 motion.  The Seventh Circuit certified his IAC claim for appeal, and ordered the parties to discuss whether counsel’s failure to ask for a limited remand under Paladino constituted ineffective assistance.

The court first held that merely mentioning Blakely at a sentencing hearing that took place during the interregnum in the summer and fall of 2004 did not suffice to preserve a full Booker claim, so as to entitle a defendant to harmless-error review under the Schlifer decision.  Trial counsel merely asked the district court about the governing law in the wake of Blakely; he did not “offer a view of the law or suggest that Mr. Stallings had been sentenced improperly,” and thus did not preserve any Booker error.

The court then ruled that appellate counsel performed deficiently by failing to ask for a Paladino remand.  “Had Mr. Stallings asked for a Paladino remand on direct appeal, we would have granted it; the sentencing judge’s cryptic comment about having imposed an ‘appropriate’ sentence is not enough from which to conclude that the district court would not have considered a lower sentence had it understood the advisory nature of the guidelines.”  The Paladino approach required the district court to assess whether the failure to appreciate the advisory nature of the Guidelines resulted in a different sentence.  Because the answer to this question was not evident from the record, the court could not determine whether appellate counsel’s deficient performance was prejudicial.  The Seventh Circuit thus remanded the case for the district court to answer the Paladino question.