CA7 remands for hearing on federal prisoner’s claim regarding failure to file appeal.

Dowell v. United States, No. 10-2912 (7th Cir. Sept. 17, 2012) (Williams, J.) — The Seventh Circuit held that a collateral-attack waiver in a federal prisoner’s plea agreement could not be enforced where (1) the defendant had reserved the right to appeal a certain issue and (2) the defendant sought to litigate, in § 2255 proceedings, whether his lawyer was ineffective for failing to file a notice of appeal. The court then remanded the case for an evidentiary hearing under Roe v. Flores-Ortega, 528 U.S. 470 (2000).

The petitioner had been charged with possessing 50 grams or more of crack cocaine with intent to distribute. In a plea agreement, the petitioner specifically reserved the right to challenge his designation as a career offender under U.S.S.G. § 4B1.1, but otherwise agreed to waive his right to file a § 2255 motion to challenge his conviction or sentence (including the manner in which the sentence was determined). The district court computed his Guidelines range at 262-327 months but ultimately imposed a sentence of 180 months’ imprisonment.

Counsel failed to file a notice of appeal within the 10-day period (the sentence was imposed in 2008). The petitioner submitted a letter to the district court some five months after sentencing, asking it to treat the letter as a notice of appeal because his lawyer did not follow his instructions to file a notice of appeal. The district court ultimately determined that the letter was untimely if construed as a notice of appeal, and so the Seventh Circuit dismissed the attempted direct appeal for lack of jurisdiction. The petitioner then sought postconviction relief on the ground that his lawyer was ineffective for failing to timely file a notice of appeal, but district court later dismissed the petitioner’s § 2255 motion as barred by the waiver provision in the plea agreement.

The Seventh Circuit vacated and remanded for further proceedings. The court concluded that the petitioner had voluntarily entered into the plea agreement, including the waiver provision, but noted that the waiver was enforceable only to the extent that the petitioner’s claims fell within its scope. Here, because the petitioner had expressly reserved the right to appeal the career-offender designation, the parties necessarily expected that the petitioner would have a meaningful opportunity to raise that claim. “A meaningful opportunity to appeal includes the effective assistance of counsel in filing the appeal.” Because the petitioner contended that he did not receive effective assistance in filing the appeal, the court held that his claim was not barred by the waiver provision in his plea agreement. On the merits, the court noted that the record was inadequately developed with regard to the petitioner’s instructions to his trial lawyer, the court remanded for a hearing.

CA7 remands for hearing on effect of extrinsic information on jury deliberations.

Hall v. Zenk, No. 11-3911 (7th Cir. Aug. 29, 2012) (Flaum, J.) — The Seventh Circuit vacated a district court’s decision to grant an Indiana state prisoner’s § 2254 petition and remanded the case to the district court with instructions to conduct another evidentiary hearing (beyond the one that the state courts held) to determine whether the petitioner was prejudiced by the jury’s receiving extrinsic information regarding his guilt.

The petitioner was charged with murdering his five-year-old stepson. One of the trial jurors had a son who was in the same jail where the petitioner was held during trial. The juror’s son first told the juror that he believed the petitioner to be innocent, and then later the juror’s son told the juror that the people on his cellblock had decided that the petitioner was guilty. The juror shared these thoughts with the jury. The petitioner was convicted and sentenced to 65 years in prison.

After denying the petitioner’s motion to depose all the jurors, the trial court held a hearing on the question of whether the juror’s relaying this information from the jail prejudiced the deliberations. The trial judge found that extrinsic information reached the jurors, but that the petitioner was not prejudiced. Focusing on where the burden of proof lies in cases such as these, the Court of Appeals of Indiana affirmed the decision because it read state law as placing the burden on the defendant to prove prejudice. See Griffin v. State, 754 N.E.2d 899 (Ind. 2001).

After unsuccessfully seeking postconviction relief, the petitioner filed a § 2254 petition in federal court. The district court ruled that a presumption of prejudice applied in this situation, see Remmer v. United States, 347 U.S. 227 (1954), and that the Indiana courts’ decision instead to require the petitioner to prove prejudice was contrary to Remmer. Moreover, the district court found that the jury was influenced by the extrinsic information from the jail, and granted relief. The State then appealed the grant of relief.

In analyzing the parties’ arguments, the court asked and answered three questions. First, is the Remmer presumption of prejudice “clearly established federal law” that the Indiana courts were bound to follow? Second, if so, did the Indiana courts either contravene or unreasonably apply that clearly established federal law by placing the burden on the petitioner to show prejudice? And third, did the jury’s receipt of the extrinsic information have a substantial and injurious effect on its deliberations?

Much of the court’s discussion reads as an explication of the Supreme Court’s decisions on this point. The court had no doubt that Remmer established a presumption of prejudice whenever extrinsic information reaches the jury. The question was whether the subsequent decisions in Smith v. Phillips, 455 U.S. 212 (1982), and United States v. Olano, 507 U.S. 725 (1993), undermined this holding. Surveying the decisions of other courts of appeals on the question, the court ultimately sided with the Ninth Circuit and held that the Court of Appeals of Indiana contravened the Remmer presumption when it placed the burden on the petitioner to prove prejudice.

The district court concluded that the Indiana courts had made a factual finding that the state could not overcome the presumption of prejudice if it were required to do so, and granted relief after deferring to that factual finding as AEDPA requires. The Seventh Circuit took a different approach, concluding that the Indiana courts had “decided not to decide” whether the petitioner was prejudiced from the jury’s receipt of the extrinsic information from the jail. Faulting the district court for not requiring the petitioner to prove prejudice and the state courts for not making any factual determination in that regard, the Seventh Circuit was left with “grave doubt,” O’Neal v. McAninch, 513 U.S. 432 (1995), about whether the extrinsic information affected the jury’s deliberations. Consequently, it remanded the case to the district court to hold a hearing on whether the extrinsic information affected the jury’s deliberations.

CA7 concludes that there was no good-faith effort to locate an unavailable witness.

Cross v. Hardy, No. 09-1666 (7th Cir. Jan. 13, 2011) (Williams, J.) — The district court reversed the denial of habeas relief to an Illinois state prisoner after concluding that the prosecution did not make a good-faith effort to locate an unavailable witness at his second trial on kidnapping and sexual assault charges.

The victim in this case was a teenaged prostitute; the petitioner’s defense was that the sex was consensual after he gave the victim money and crack cocaine in exchange for sex. The victim testified at the petitioner’s first trial, but “her demeanor and manner of testifying appeared to raise some concerns about her credibilty.” The jury acquitted the petitioner of the kidnapping charges but hung on the sexual assault charges. The petitioner was then retried on the sexual assault charges. The day before the second trial was to begin, the prosecution asserted that the victim had disappeared and sought to use her testimony from the first trial instead. The victim’s mother had reported that the victim had gone missing over two weeks before. The police could not locate her, and found no record of her being in the county hospital, jail, or morgue. There was some thought that the victim had either gone to Waukegan, some 40 miles from the scene of the crime in Chicago, or to cosmetology school in another unspecified city. The petitioner objected that these were not good-faith efforts to locate an unavailable witness, but the trial judge disagreed and allowed a law clerk to read the victim’s prior testimony into the record at the second trial. The petitioner was convicted and sentenced to a total of 60 years in prison. The Illinois Appellate Court affirmed the conviction and rejected the petitioner’s Confrontation Clause objection, and the Illinois Supreme Court denied discretionary review.

Given the importance of the victim’s testimony, the court concluded, the state was obligated to exert great effort to locate her.” See also Cook v. McKune, 323 F.3d 825, 835-36 (10th Cir. 2003) (stating that “the more crucial the witness, the greater the effort required to secure his attendance”). The victim’s testimony here was “crucially important” to the prosecution, and the jury deserved an opportunity to evaluate the victim’s demeanor as a witness, especially in light of her poor performance at the first trial. Without the victim’s “live testimony, the second jury was forced to make a credibility determination based on the cold transcript, which it could not objectively do, particularly given the law clerk’s more fluid and inflected reading of the transcript.” The state knew well in advance of the second trial that the victim was reluctant to testify, yet they did not even begin to locate her until three weeks before the trial began and a week before she eventually ran away. The state should have subpoenaed her because she was the most important witness, but it did not. Subpoenas, after all, are “strong evidence of good faith.” Overall, the state’s “failure to more thoroughly investigate [the victim’s whereabouts was] insufficient to protect” the petitioner’s Sixth Amendment rights. The state courts thus unreasonably rejected the petitioner’s Confrontation Clause claim.

CA7 holds that statute of limitations for civil committees runs from date of latest commitment order.

Martin v. Bartow, No. 09-2947 (7th Cir. Dec. 9, 2010) (Hibbler, J.) — The Seventh Circuit reversed the dismissal as untimely of a Wisconsin state prisoner’s § 2254 petition. The petitioner in this case is a “sexually violent person” civilly committed in 1996 and subject to annual review of that decision by virtue of a requirement of state law. As a result of that annual review, “the State decided anew that Martin was a sexually violent person each year since his original commitment.” After unsuccessfully seeking state-court review of the 2005 renewal of the commitment order, the petitioner challenged the state courts’ action in federal court by filing a habeas petition. The district court dismissed the petition as untimely because it had not been filed within one year of the petitioner’s initial commitment order. But the court’s characterization of Wisconsin law, coupled with an analogy to Magwood v. Patterson, 130 S. Ct. 2788 (2010), led it to reverse the district court’s dismissal. Because each year the commitment order is issued anew, each year any erroneous determination remediable by federal habeas occurs again, and the petitioner may challenge the new error even if he failed to challenge the old. Cf. Magwood, 130 S. Ct. at 2801 (“An error made a second time is still a new error.”).

CA7 reiterates that Illinois plain-error review supports procedural default.

Kaczmarek v. Rednour, No. 09-2417 (7th Cir. Nov. 17, 2010) (Flaum, J.) — The Seventh Circuit held that Illinois’s plain-error review is an independent and adequate procedural bar that supports procedural default in federal court. It therefore refused to review the merits of the petitioner’s claim that his sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000), because a judge determined that the murder involved “exceptionally brutal and heinous behavior indicative of wanton cruelty” and thus imposed a natural-life sentence, above the statutory maximum of 40 years.

On direct review, the Illinois Appellate Court had granted relief on the petitioner’s Apprendi claim, but the Illinois Supreme Court reversed because the petitioner failed to make a contemporaneous objection at trial. Under the Illinois plain-error review, this failure to object meant that the Apprendi claim could only garner relief if there was no prejudice stemming from the failure to review the claim on the merits. So even though the Illinois Supreme Court found that there was Apprendi error, it reversed the appellate court’s decision to remand for a new sentencing hearing because it was abundantly clear that the murder in this case was committed in a wantonly cruel manner.

Under Seventh Circuit precedent, Illinois’s plain-error rule is an independent and adequate ground in state law that supports federal procedural default. It is independent because the state courts actually relied on the rule to avoid ruling on the merits of the claim. (The court didn’t mention the “intertwined with federal law” requirement of Ake v. Oklahoma, 470 U.S. 68, 75 (1985).) The fact that the Illinois Supreme Court cited federal cases in conjunction with the Apprendi claim didn’t make its ruling not independent, because those federal cases granted relief under the federal plain-error rule, which is similar to Illinois’s, and thus (the court implied) the Illinois Supreme Court was citing the federal cases for guidance on applying its own plain-error rule, not the merits of the Apprendi claim. And Illinois’s plain-error rule is adequate because it was a firmly established and regularly followed aspect of Illinois law at the time of the Illinois Supreme Court’s ruling. Thus the petitioner’s Apprendi claim was procedurally defaulted.

The court then considered whether the State had waived its procedural-default defense, and concluded that it hadn’t. True, the State didn’t raise the defense in its answer. But it did raise the defense in a motion for reconsideration before the district court. Although the State didn’t raise the issue in a timely fashion, the petitioner was on notice that procedural default might be an issue on appeal, and that was enough for the court to conclude that the State hadn’t waived the procedural-default defense.

Finally, because the Apprendi issue wasn’t novel at the time of the Illinois Supreme Court’s decision in 1996, there was no cause and prejudice for failing to raise it.

Finally, the petitioner had waived his claim that he was entitled to notice of the wanton-cruelty aggravating factor in his indictment because he didn’t raise the claim in the district court.

SCOTUS reminds us that habeas relief must be based on violations of federal law.

Wilson v. Corcoran, No. 10-91 (U.S. Nov. 8, 2010) (per curiam) — The Supreme Court granted the State of Indiana’s petition for a writ of certiorari, vacated the decision of the Seventh Circuit, and remanded for further proceedings (GVR) in an Indiana capital habeas case. This was the Court’s second per curiam GVR in the case; last Term the Court GVR’ed the case because the Seventh Circuit denied the writ but left many of the habeas petitioner’s claims for relief unaddressed. See Corcoran v. Levenhagen, 558 U.S. 1 (2009) (per curiam). This time the Seventh Circuit granted habeas relief because it identified a violation of Indiana law — reliance on nonstatutory aggravating factors in the trial judge’s decision to impose the death penalty. But that violation of state law wasn’t tethered to any violation of federal law, and may not have violated federal law at all. The Court also suggested that the Seventh Circuit overlooked the issue that led to the GVR when the State presented the argument in a petition for rehearing.

CA7: Requiring IAC claims to be brought in an Anders brief is not an adequate procedural bar.

Johnson v. Thurmer, No. 07-2628 (7th Cir. Oct. 18, 2010) (Kanne, J.) — The Seventh Circuit reiterated its rule that a Wisconsin procedural bar applied to IAC claims that were not raised an Anders brief on direct appeal is not adequate to support procedural default. The rule is too confusing, the court held, because the appellate court wouldn’t be allowed to consider a trial-level IAC claim on direct appeal on account of the claim not being presented to the trial court in the first instance. Wisconsin also requires defendants seeking to raise IAC claims to bring them in a postconviction motion filed before the Anders brief, but that doesn’t preserve the issue for the direct appeal either, because the court reviewing the direct appeal doesn’t have an order denying postconviction relief in front of it. Finally, to the extent the rule requires appellate IAC claims to be raised in the Anders brief, the court noted the usual rule that a lawyer can’t bring an ineffectiveness claim against herself.

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.