Habeas Corpus: State & Federal (7th Circuit)

Updated 3/30/09
Usage note. If you come across a broken 7th Circuit link, you can find the opinion file with either the party name or case number, at the 7th Circuit site, or at Findlaw. As for F.3d cites: you can find them here.

State Remedy

(State) Habeas – Knight Petition: Challenge to Affirmance on Rule 809.32 No-Merit Appeal
State ex rel. Jarrad T. Panama v. Hepp, 2008 WI App 146
For Panama: Philip J. Brehm
Issue/Holding: Panama’s collateral attack on a sentence previously affirmed by no-merit appeal may be canalized into a “Knight” habeas petition, at least where the challenge is based on a potential defect apparent in the record.
The court continues to dredge up terrain between direct appeal and collateral attack: Knight falls on one side, Rothering on the other. How do you know on which side to alight? First, the background, briefly. The court of appeals affirmed Panama’s plea-based conviction and sentence in a prior, Rule 809.32 no-merit appeal. Subsequently, the same attorney who filed the no-merit report discerned a missed issue and filed this habeas, alleging that he was ineffective for overlooking the issue, which is as follows:
¶4        Panama entered a no-contest plea in accordance with a negotiated plea agreement. The plea agreement specified in relevant part, “There are no agreements as to sentencing but the State will be requesting prison left to the court’s discretion.” Although that provision appears to be an agreement by the prosecutor to refrain from commenting on the length of the sentence the court should impose, at the sentencing hearing, the prosecutor argued: “The pre-sentence report asks that you impose ten years in prison. I concur with that recommendation because of the nature of the offense damage that’s been done to the victim.” Panama’s counsel did not object to this comment and the trial court imposed the recommended ten-year sentence.
The defect both appears in the original record and is pretty glaring (which, among other things, means that the court of appeals should have seen it while ruling on the no-merit appeal). Thus, the AG doesn’t now argue that the DA could agree to hold to her tongue and then without consequence advocate a specific outcome; that would be frivolous. Instead, the AG resorts to the hypertechnical defense that Panama filed the wrong paperwork: he filed a Knight (habeas) petition in the court of appeals, when he should instead have a filed a Rothering (§ 974.06) postconviction motion. To make matters worse, relevant caselaw on this procedural aspect, as the court of appeals charitably concedes, “create(s) inconsistencies,” ¶21. State v. Knight, 168 Wis. 2d 509, 520, 484 N.W.2d 540 (1992) says a claim of ineffective assistance of appellate counsel must be pursued by habeas petition filed in the court of appeals, while State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996) says that a claim of ineffective assistance of postconviction counsel must be raised via § 974.06 motion in circuit court. The distinctions can be arbitrary and the procedure therefore a trap for the unwary, as the court presently appears to recognize.
¶25      In sum, the cases collectively create much confusion and delay. Common sense suggests that all claims of ineffective assistance of counsel, including appellate counsel, be initially addressed in the circuit court. This cannot be done, however, without overruling or modifying either Knight or Rothering, which this court cannot do.
But now add another layer of complexity due to the particular and somewhat unusual context, because this is a collateral attack on a Rule 809.32 no-merit affirmance. The court of appeals has previously grappled with this problem. In what appears to be the first meaningful such go-around, the court decided that the defendant’s failure to respond to the no-merit report waived his subsequent attack on the effectiveness of his trial attorney’s representation; it then fell to the 7th Circuit to apply the law correctly, Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003) (“It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.”). The court next held that, at least where the defendant was raising an issue functionally identical to one affirmed by the prior no-merit appeal, the new challenge was procedurally barred, State v. Christopher G. Tillman, 2005 WI App 71, ¶24 (“Tillman’s current phrasing of his grievance in terms of double jeopardy and multiplicity is simply a resurrection of his prior arguments under new labels”). The last case in this trilogy, however, authorized a 974.06 attack on a sentence, notwithstanding a prior no-merit affirmance that failed to discuss that sentencing issue, in State v. Ricky J. Fortier, 2006 WI App 11.

That’s the backdrop, legally and factually. Panama filed a “Knight” petition, and the State argues that he should have instead filed a § 974.06 Rothering motion, as required (or so the AG argues) by Fortier. The court rejects that contention, holding that Fortier didn’t explicitly discuss ineffective assistance of counsel, just whether there was “sufficient reason” for overcoming the 974.06 serial litigation bar, Panama, ¶16 (“In other words, Fortier is best understood as concluding that counsel’s failure to raise an arguably meritorious issue in a no-merit report is a ‘sufficient reason’ under Escalona-Naranjo for the defendant’s failure to raise the issue in a response, thus preventing the no-merit procedure from serving as a procedural bar in a subsequent § 974.06 motion, regardless of whether counsel’s failure met both the deficient performance and prejudice standards of an ineffective assistance claim.”).

The court goes on to say that the “Knight” petition properly raised the matter of the overlooked issue, albeit under an ineffective-assistance rationale:

¶27      As in so many cases that preceded this one, there are competing analyses which could be employed here. The fact that the plea breach issue was not preserved by a contemporaneous objection by trial counsel and that the arguably ineffective assistance of trial counsel was not preserved by postconviction counsel seems to place the case within the ambit of Rothering. In other words, because the claim is at its core an allegation that trial counsel failed to object to a plea agreement breach, the circuit court would seem in the best position to evaluate the issue. But unlike the direct appeal situation in Rothering, a no-merit proceeding also afforded appellate counsel the opportunity to explain why certain issues would lack arguable merit because they have been waived. Such discussion, in turn, would have provided this court with an opportunity to consider whether the waiver might be one which should be excused in the interests of justice, or whether there exists a viable claim of ineffective assistance of trial counsel. Therefore, in the no-merit context, there could be an argument that counsel provided ineffective assistance in both postconviction and appellate contexts by failing to preserve an issue, and then failing to bring the waived issue to this court’s attention. As to the failure in the no-merit context, this court is in the best position to evaluate the ineffective assistance challenge. We conclude that the deciding factor here is that the defendant is seeking, inter alia, to overturn this court’s no-merit decision and reinstate all of his postconviction rights. Under Knight, a writ of habeas corpus to this court is still the proper mechanism for seeking that relief.

¶28      Under Machner, however, we cannot resolve the present Knight petition until there has been a postconviction hearing at which factual findings are made regarding: (1) whether the plea agreement in fact required the State to refrain from recommending any particular length of prison time; and (2) whether trial counsel had any strategic reason for failing to object to the prosecutor’s recommendation of ten years in prison.

Presumably, then, Panama might have litigated this under a Fortier-type § 974.06 motion. (The court certainly doesn’t suggest otherwise; it does not, for example, purport to distinguish Fortier nor does it have the authority to overrule it.) Apparently, then, the court is saying that a “Knight” petition is a permissible, not exclusive, remedy – fine, but there’s nonetheless a certain amount of question-begging involved. As ¶¶27-28 suggest, the theory is that litigation of the no-merit report violated Panama’s right to effective assistance of counsel. This approach, however, is flawed at the conceptual level. A no-merit report is, in essence, a motion to withdraw as counsel; the court must conduct its own, independent scrutiny of the record to determine whether it will grant the motion. It is true that counsel in this instance should have instantly perceived the issue. But recall that the issue was quite apparent in the record, so that the court should have discerned it. “Should have,” in any event, if it had properly discharged its own duty to make an independent determination of the existence of any arguable issue appearing in the record. The court thus erred in its own right, and its failure to carry out its mandated duty is a “sufficient reason,” to the extent one is necessary, to ignore the serial litigation bar. In other words, Fortier would have provided all the ammunition Panama needed for a 974.06 motion (as opposed to a habeas). Under a Knight habeas, the defendant-petitioner has the additional burden of showing that appellate counsel was ineffective. (Recall the court’s acknowledgement, ¶16, that Fortier did not rest on an IAC claim.) Won’t be a problem in this case, seemingly, but why take on that extra burden if you don’t have to? On the other hand, there are certainly advantages flowing from a successful Knight petition. Reinstatement of 809.30, direct-appeal rights, which would of course lead to plenary review of any and all potential issues, for one; reinstating the deadline for a 2254 habeas (though this is a highly technical area and the practitioner must proceed with great caution). Contrastingly, a Rothering motion is limited to the issue(s) raised by the motion (which have to be constitutional or jurisdictional by definition), and the circuit court lacks authority to reinstate the direct appeal. So, there are potentially complex tactical considerations at the very outset.
(State) Habeas Remedy -- Challenge to Extradition: Standard of Review
State ex rel. Kenneth Onapolis  v. State, 2006 WI App 84, PFR filed 5/25/06
Pro se
¶5        A trial court’s order denying a petition for a writ of habeas corpus presents a mixed question of fact and law. State ex rel. McMillian v. Dickey, 132 Wis. 2d 266, 276, 392 N.W.2d 453 (Ct. App. 1986).  Factual determinations will not be reversed unless clearly erroneous. Id. Whether a writ of habeas corpus is available to the party seeking relief is a question of law, which we review independently. Id.; see State ex rel. Woods v. Morgan, 224 Wis. 2d 534, 537, 591 N.W.2d 922 (Ct. App. 1999). With rare exception, most published cases considering the issues of specialty and extradition in a habeas corpus challenge are adjudicated in federal courts and subject to plenary review. See United States v. Saccoccia, 58 F.3d 754, 767 (1st Cir. 1995). Where, as here, we are reviewing the trial court’s interpretation of the principles of specialty, we concur with the position of the State and shall apply a plenary or independent standard of review.
(State) Habeas Procedure, Generally
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remanding summary order of court of appeals, reconsideration denied, 2006 WI 121
For Coleman: Brian Kinstler
¶18      A petition for writ of habeas corpus commences a civil proceeding wherein the petitioner claims an illegal denial of his or her liberty. State ex rel. Zdanczewicz v. Snyder, 131 Wis.  2d 147, 151, 388 N.W.2d 612 (1986). A habeas petition must contain a statement of the legal issues and a sufficient statement of facts that bear on those legal issues, which if found to be true, would entitle the petitioner to relief. Wis. Stat. § 809.51(1); State ex rel. Smalley v. Morgan, 211 Wis.  2d 795, 802, 565 N.W.2d 805 (Ct. App. 1997). Habeas corpus relief is available only when the petitioner is being held in violation of a constitutional right or by a tribunal that lacks jurisdiction, and in either case, only when no other remedy at law is adequate to provide relief. Marberry, 262 Wis.  2d 720, ¶2. Habeas is an equitable remedy, United States ex rel. Smith v. Baldi, 344 U.S. 561 (1953), for which there is no constitutional right to counsel, State v. Evans, 2004 WI 84, ¶32, 273 Wis. 2d 192, 682 N.W.2d 784.
(State) Habeas Procedure -- Claim of Ineffective Assistance of Appellate Counsel -- Laches Bar
State ex rel Marvin Coleman v. McCaughtry, 2006 WI 49, reversing and remanding summary order of court of appeals, reconsideration denied, 2006 WI 121
For Coleman: Brian Kinstler
¶28      Prihoda, Sawyer, Lohr and Schafer all employ a three-element test where the first element is unreasonable delay in bringing the claim and the other two elements apply to the party asserting laches: lack of knowledge (that the claim would be brought) and effect (prejudice). In Neylan, McMillian, Smalley and Evans, the first element is the same, unreasonable delay, but the second element of the two-element analysis is set out as "actual prejudice." When the delay is not extensive, the movant's lack of knowledge that the claim would be brought is important in assessing prejudice. Neylan, 121 Wis.  2d at 491 n.5. Stated otherwise, actual prejudice includes the concept that the party raising laches did not have knowledge that the claim would be brought and that he suffered prejudice because of the delay in bringing the claim.

¶29      Because it may be difficult to quantify "actual prejudice," we conclude that the three-element analysis of Sawyer and Prihoda provides the better analytic framework for assessing a laches defense than does the two-element analysis set out in McMillian, Smalley and Evans. Carefully applied to the facts, assessing whether a party raising laches did not have knowledge that the claim would be brought will permit the circuit court to more fully apprise the effect of a claim that has been unreasonably delayed. For example, if the State had knowledge that Coleman would bring his claim of ineffective appellate counsel, but destroyed all the records that it possessed that were relevant to that claim, the State might be prejudiced in defending against the claim, but it would nevertheless fail on its laches defense.

Coleman was convicted and sentenced to 80 years in 1986. Appointed appellate counsel unsuccessfully pursued a sentence modification and then, after consultation with and agreement from Coleman, terminated his appointment in 1987 without filing an appeal. Then, 17 years later, Coleman filed a habeas petition in the court of appeals alleging that counsel had been deficient in not identifying a potentially meritorious and preserved suppression issue. (That is, the claim is not one of client abandonment but instead of identification of an issue already apparent in the record.)

First, a procedural aspect noted only in the barest of passing by the court: where, and by what mechanism, should an ineffective-assistance claim be brought? These waters were first muddied by State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797-98, 565 N.W.2d 805 (Ct. App. 1997):

… Under Knight, a claim of ineffective assistance of appellate counsel is properly raised by petition for a writ of habeas corpus in the appellate court which heard the defendant's direct appeal. See Knight, 168 Wis.2d at 512-13, 484 N.W.2d at 541. However, under Rothering, where the alleged deficiencies relate to action or inaction by postconviction counsel, the ineffective assistance claim should be raised in the circuit court either by a petition for a writ of habeas corpus or a motion under § 974.06, STATS. See Rothering, 205 Wis.2d at 672-74, 556 N.W.2d at 138-39.
If Coleman's challenge is to postconviction counsel's failure to identify the suppression issue, then under Smalley it should have been raised by § 974.06 motion filed in the trial court. But if this failure is attributable to appellate counsel, then the habeas petition Coleman filed in the court of appeals was the proper way to go. But just which role was counsel occupying when he failed to take up the suppression issue? True, you can simply file an appeal raising an already-preserved issue, which would arguably make the omission attributable to appellate counsel. But there's nothing to prevent renewal of issue on postconviction motion, something that makes sense if there's going to be a postconviction motion anyway, as indeed there was; so, the omission could well be attributable to postconviction counsel. The problem lies with Rothering's stilted and often-blurred distinction between these categories -- which brings us back to Coleman.

Habeas, the court says without any elaboration, is the correct vehicle for raising Coleman’s claim: “Coleman has properly chosen the last form [i.e., habeas as opposed to § 974.06 motion] under which to seek relief from his convictions because his claim is based on an allegation of ineffective assistance of appellate counsel,” ¶16. At a minimum, this would seem to mean that failure to file an appeal where the record contains a preserved issue is a failure attributable to appellate counsel, and therefore is challenged via habeas in the court of appeals. Because Rothering involved an unpreserved issue, its distinction between types of counsel may well remain viable. In any event, the fault line between Rothering motions and habeas petitions (preserved vs. non-preserved issues) is at least arguably sharpened, if implicitly, by Coleman.

Smalley does take an explicit beating on its laches analysis, ¶25 ("While Smalley refers to laches and uses laches terminology, it appears to have conflated its analysis of the habeas petition's timeliness with the unreasonable delay element of laches."), and it may be that the result in that case is now in doubt (unexplained 8-year delay in filing habeas claim of client abandonment was unreasonable and for that reason alone review was barred). Note, however, the court's apparent approval of a timeliness analysis, as distinct from laches and as to which the habeas petitioner bears the burden of proof: "the decision places the burden of proof for timeliness of the petition on Smalley, which is in accord with reviewing timeliness in regard to a habeas petition," ¶25.

On to the merits. The “uncontroverted fact that Coleman knew of his claim for more than 16 years but … did nothing, year after year,” establishes that his “delay was unreasonable as a matter of law,” ¶33. But laches requires more, namely prejudice to the State, something the court of appeals impermissibly assumed, necessitating remand:

¶36      While the court of appeals' assumption may prove true, it is not the only possible outcome that could result from an inquiry of postconviction counsel. Therefore, it cannot be decided as a matter of law. To the contrary, appellate counsel may be able to recall or to reconstruct what happened during his communications with Coleman; what Coleman's response was; and how they reached the ultimate decision not to appeal. If he cannot, then the court of appeals is correct that the State suffered prejudice in being able to meet Coleman's claim of ineffective assistance of appellate counsel. But if counsel proves the assumption of the court incorrect, further proceedings on Coleman's claim of ineffective assistance will be required.
(The court of appeals lacks authority to make its own factual findings, and therefore must either use a special master or remand to the circuit court, ¶2 n. 2 and accompanying text.)

The 3-vote concurrence, incidentally, makes the cogent point that without fact-finding it can’t be said that the State proved unreasonable delay in filing the petition, ¶¶39, et seq. Yet that does seem to be exactly what the majority has done, if by the barest of margins. The best that might be said is that a delay significantly less than 16 years might lead to a different conclusion.

Generally, Statutory vs. Common Law – Challenge to Ch. 980 Commitment
State ex rel. Frederick Lee Pharm v. Bartow, 2005 WI App 215
For Pharm: Roisin H. Bell (Pro Bono)
Issue/Holding( Dicta): ¶12, n. 6:
The State also draws a distinction between statutory habeas corpus and common law habeas corpus, contending that the circuit court properly ruled that Pharm was not entitled to statutory habeas corpus relief because he was committed under a valid judgment of commitment. However, the State says that the circuit court failed to address the common law aspects of Pharm’s habeas corpus action. This form of habeas corpus relief lies for violations of the United States Constitution, State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 451, 593 N.W.2d 48 (1999), and is an equitable doctrine allowing a court to tailor a remedy applicable to the particular facts. State ex rel. Richards v. Leik, 175 Wis.  2d 446, 452, 499 N.W.2d 276 (Ct. App. 1993). 

We question the State’s contention that Pharm would not have been entitled to statutory habeas corpus relief if the Wis. Stat. ch. 980 commitment proceeding was barred by Pharm’s waiver of extradition and the IAD. Under that scenario, the Milwaukee County Circuit Court arguably would not have had the requisite competency to proceed in a ch. 980 commitment proceeding. Thus, the commitment order would not be valid. However, we need not address this question since we hold that Pharm’s rights under the IAD were fully honored and the State was not barred from seeking Pharm’s commitment pursuant to ch. 980. Thus, Pharm is not entitled to statutory or common law habeas corpus relief.

The procedural background is somewhat complex, but reduces to this: Pharm, while serving a sentence in Nevada, became subject to Wisconsin detainer on charges here. He waived extradition under the Detainer Act, got convicted and sentenced here and was returned to Nevada to continue serving that sentence. Wisconsin lodged a new detainer for our sentence, which caused his return here for that sentence when he reached parole release in Nevada. Upon parole in Wisconsin, rather than return him to Nevada for parole there (it was a life sentence), We committed him as an SVP under ch. 980. He took a direct appeal of that commitment, and lost, State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163. He now seeks, under habeas procedure, to collaterally attack the commitment on a claimed violation of the detainer act. The court allows the attack to proceed, but oddly doesn’t say why habeas is the correct vehicle, beyond a mystifying reference to statutory and common-law distinctions in the footnote quoted above. First, Fuentes simply doesn’t draw the claimed distinction; whatever the distinctions between statutory and common law procedure might be, they aren’t discernible there. Second, it is long-settled that common law habeas supports jurisdictional attacks. State ex rel. Morgan v. Fischer, 238 Wis. 88, 91, 298 N.W. 353 (1941) (“Nothing will be investigated on habeas corpus except jurisdictional defects amounting to want of any legal authority for the detention or imprisonment. Petition of Crandall for a Habeas Corpus (1874), 34 Wis. 177; Larson v. State ex rel. Bennett (1936), 221 Wis. 188, 266 N.W. 170.”). Of course, by “jurisdictional defects” is meant defects sufficiently severe to render the judgment void, but the point is that common law habeas supports non-constitutional error and thus the court’s distinction is too facile. Third, ch. 980 is, as we’ve been told over and over, a civil remedy – which means that § 806.07 (relief from judgment) is available for collateral attack. Indeed, Pharm launched a prior attack under that provision raising essentially the same argument he renews here; the court acknowledges that its prior rejection probably creates law of the case bar to this appeal, but would nonetheless be overlooked, ¶9 n. 5. It remains to be seen, then, whether and to what extent habeas supports collateral attack of a ch. 980 commitment. It should be kept in mind that habeas isn’t available where an adequate remedy at law exists. If § 806.07 is not an adequate remedy at law, the court doesn’t say why – which means that that provision ought to be looked to first, in preference to habeas. In other words, this case should not be read broadly to allow habeas as supporting collateral attack; could be that the court (albeit without saying so) followed the rule that pro se pleadings should be construed liberally or simply that the court wanted to reach the merits in a precedential manner and terminate repetitive litigation on the issue. It ought to kept in mind, too, that 28 USC § 2254 supports federal habeas review of an SVP commitment; see case summaries below.
Habeas Corpus -- Generally
State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999)
For Fuentes: Robert T. Ruth
¶6. The availability of habeas corpus relief arises out of the common law and is guaranteed by both the state2 and federal3 constitutions as well as by statute.4 Although a habeas corpus petition normally arises out of criminal proceedings, it is a separate civil action founded upon principles of equity. State ex rel. Korne v. Wolke, 79 Wis. 2d 22, 26, 255 N.W.2d 446 (1977); State ex rel. Durner v. Huegin, 110 Wis. 189, 220, 85 N.W. 1046 (1901). This foundation empowers a court of equity to tailor a fair and just remedy to the given factual circumstances provided that the remedy does not itself violate the constitution. State v. Knight, 168 Wis. 2d 509, 520-21, 484 N.W.2d 540 (1992); State ex rel. Memmel v. Mundy, 75 Wis. 2d 276, 288, 249 N.W.2d 573 (1977).

¶7. Habeas corpus provides extraordinary relief and is available only where specific factual circumstances are present. First, the party seeking habeas corpus relief must be restrained of his or her liberty. See State ex rel. Hake v. Burke, 21 Wis. 2d 405, 124 N.W.2d 457 (1963); State ex rel. Wohlfahrt v. Bodette, 95 Wis. 2d 130, 132-33, 289 N.W.2d 366 (Ct. App. 1980). Second, the person's restraint must have been imposed by a tribunal without jurisdictional power over the person or subject matter, or the restraint must have occurred contrary to constitutional protections. State ex rel. Warrender v. Kenosha County Court, 67 Wis. 2d 333, 339, 231 N.W.2d 193 (1975); Wolke v. Fleming, 24 Wis. 2d 606, 613-14, 129 N.W.2d 841 (1964); Edwin E. Bryant, 9 Wisconsin Pleading and Practice § 84.03, p. 223-24 (3d ed. 1998). Third, the person improperly restrained must have no other adequate remedy available in the law. State ex rel. Dowe v. Waukesha County Circuit Court, 184 Wis. 2d 724, 729, 516 N.W.2d 714 (1994) (collecting cases).

Habeas Corpus -- Remedy for Court of Appeals' Clerical Error Causing Loss of Petition for Review Deadline
State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999)
For Fuentes: Robert T. Ruth
Issue/Holding: Court of appeals' "clerical error" (failure to mail appellate counsel a copy of its decision affirming conviction) which led to loss of deadline for filing petition for review in supreme court held remediable through writ of habeas corpus.
Habeas Corpus -- Generally
State v. Rodosvaldo C. Pozo, 2002 WI App 279, 258 Wis. 2d 796, 654 N.W.2d 12
¶8. Writ of habeas corpus is an equitable remedy that protects a person's right to personal liberty by freeing him or her from illegal confinement. State ex rel. Dowe v. Waukesha County Circuit Court, 184 Wis. 2d 724, 728-29, 516 N.W.2d 714, 715-16 (1994). It arises in common law and is guaranteed by the state2 and federal3 constitutions, as well as by statute.4 Because it is an extraordinary writ, habeas corpus relief is available only where the petitioner demonstrates: (1) restraint of his or her liberty, (2) which restraint was imposed contrary to constitutional protections or by a body lacking jurisdiction and (3) no other adequate remedy available at law. State ex rel. Haas v. McReynolds, 2002 WI 43, ¶12, 252 Wis. 2d 133, 643 N.W.2d 771. Habeas corpus is not a substitute for appeal and therefore, a writ will not be issued where the "petitioner has an otherwise adequate remedy that he or she may exercise to obtain the same relief." Id. at ¶14; see also State ex rel. Doxtater v. Murphy, 248 Wis. 593, 602, 22 N.W.2d 685, 689 (1946).

¶9. Wisconsin Stat. § 974.06(8) sets out the statutory provisions which explain the availability, or lack thereof, of writ of habeas corpus in postconviction proceedings.5 Section 974.06(8) provides in relevant part:

A petition for a writ of habeas corpus ... shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced the person, or that the court has denied the person relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his or her detention.
Additionally, in a postconviction setting, a petition for writ of habeas corpus will not be granted where (1) the petitioner asserts a claim that he or she could have raised during a prior appeal, but failed to do so, and offers no valid reason to excuse such failure, State ex rel. LeFebre v. Israel, 109 Wis. 2d 337, 342, 325 N.W.2d 899, 901 (1982), or (2) the petitioner asserts a claim that was previously litigated in a prior appeal or motion after verdict. State v. Witkowski, 163 Wis. 2d 985, 990, 473 N.W.2d 512, 514 (Ct. App. 1991) ("A matter once litigated may not be relitigated in a subsequent postconviction proceeding no matter how artfully the defendant may rephrase the issue.").
(Court bars Pozo's habeas claims because he cold have raised them on direct appeal; and also because he didn't provide a valid reason to excuse failure to raise them.)
Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel -- Habeas in Court of Appeals as Exclusive Mechanism
State ex rel. Luis Santana v. Endicott, 2006 WI App 13
Pro se
Issue/Holding1: A claim that lapsed direct appeal rights should be restored on the basis of ineffective assistance of counsel must be sought via habeas filed in the court of appeals, pursuant to State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992):
¶1        … Although Santana may seek habeas relief on his ineffective assistance claim, he started in the wrong forum.  His petition faults appointed counsel for failure to pursue an appeal. State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 797-99, 565 N.W.2d 805 (Ct. App. 1997), unequivocally requires defendants to raise this type of ineffective assistance claim in a Knight [2] petition to this court. That said, we emphasize that the dismissal below is without prejudice and that Santana may still file a Knight petition.

¶4        … Santana complains that counsel failed to file a no merit appeal or to move for postconviction relief.  Rule 809.32 governs no merit appeals. Had counsel moved for postconviction relief, he would have done so pursuant to Wis. Stat. § 974.02, which is governed by the procedural rules in Rule 809.30. See § 974.02(1); Evans, 273 Wis. 2d 192, ¶29 (such a motion may precede or substitute for a notice of appeal and may be a prerequisite to direct appeal depending on whether the issues argued were previously raised). Thus, Santana should have brought a Knight petition to this court.

¶5        The State, citing Smalley, 211 Wis. 2d at 798-99, and Ford, 269 Wis. 2d 810, ¶¶36-37, observes that although this court accepts habeas petitions where appellate counsel is ineffective, we often remand to the trial court for fact finding and opines that “[i]t reasonably follows … that a trial court should be able to address a loss-of-direct-appeal claim in the first instance.” We disagree with the State’s suggestion that Smalley prescribes an optional procedure. …

¶6        Although we affirm the circuit court’s order dismissing Santana’s petition, we emphasize that he remains free to pursue the proper procedure by filing a Knight petition in this court. …

More than a little fussy, no? Not so much the abstract principle—court of appeals is exclusive forum to resolve Knight claim—but the result on these facts. The claim is in the court of appeals. Why can’t they just (liberally) construe the appeal to be a Knight petition, consistent with the idea that pro se claims are liberally construed so as to overcome technical defects? Santana will simply turn around, file the petition with the court of appeals, and they’ll have to review it anyway.
¶9        As for what does belong in the Knight petition, we observe that the procedures in Wis. Stat. Rule 809.51 apply. The petition should contain a statement of the issues and facts of controversy, the relief sought, and reasons why we should take jurisdiction. See Rule 809.51(1)(a)-(d); Smalley, 211 Wis. 2d 795 & n.7. The statement of facts should identify precisely what counsel did or failed to do. We note that the issue of waiver will also probably arise.  The State has posited that Santana waived his right to bring a loss-of-direct-appeal claim by waiting seven and one-half years to seek relief. Habeas relief is an equitable remedy subject to the doctrine of laches. Smalley, 211 Wis. 2d at 800. Santana should be prepared to address the State’s claim and to provide a factual basis for his delay. See id. at 802 (petition must allege facts demonstrating that the defendant sought prompt and speedy relief). [3]

¶10      Additionally, the petition must comply with the requirements of Wis. Stat. § 782.04.  … We wish in particular to emphasize the verification requirement, which many prisoners overlook. Verification entails signing the document in the presence of a notary public. See Kellner v. Christian, 197 Wis. 2d 183, 188-89, 539 N.W.2d 685 (1995). The verification requirement assures “that the statements contained therein are presented with some regard to considerations of truthfulness, accuracy and good faith,” and petitions not properly verified do not meet the requirements for a valid application. Maier v. Byrnes, 121 Wis. 2d 258, 262-63, 358 N.W.2d 833 (Ct. App. 1984).

What’s with the incorporation of statutory habeas procedure, § 782.04? Habeas is a common law as well as statutory procedure, State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, ¶6, 593 N.W.2d 48, and a Knight petition is a common law mechanism. Nothing wrong, of course, with requiring that a habeas petition filed in the court of appeals comply with Rule 809.51, but compliance with § 782.04 (statutory habeas) is deeply problematic—not least because statutory habeas may be filed in any court, supreme court, court of appeals, and circuit court, § 782.03. The court just got done telling us that a Knight habeas can’t be filed in circuit court, so how can it justify incorporating a procedure which applies to circuit court?

Note as well the court’s recognition that if Santana has a constitutional or jurisdictional issue, he may raise it with a § 974.06 motion (¶¶8, 11) – with no mention made, by the way, of State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994). What this suggests, albeit obliquely, is that the E-N serial litigation bar simply does not apply where there has been no prior litigation. On this point, see State v. Anou Lo, 2003 WI 107, ¶44 n. 11 (“Our ruling would only be applicable in the situation where a criminal defendant actually filed a § 974.02 motion or pursued a direct appeal. Therefore, in Loop v. State, 65 Wis.  2d 499, 222 N.W.2d 694 (1974), where the defendant filed a § 974.06 motion challenging his conviction without having previously filed a § 974.02 motion or pursued a direct appeal, he was permitted to raise a constitutional issue not raised on direct appeal because no direct appeal had been sought. We agree with this analysis.”).

Enlargement of Direct Appeal Deadline Based on Ineffective Assistance of Counsel -- Habeas As Exclusive Mechanism
State v. Iran D. Evans, 2004 WI 84, reversing unpublished decision of court of appeals

For Evans: Robert R. Henak

Issue/Holding: The petition for writ of habeas corpus procedure mandated by State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992) is the exclusive mechanism for seeking reinstatement of direct appeal deadlines lost on account of ineffective assistance of counsel; the court of appeals erroneously exercises discretion when it enlarges the deadline via § 809.92(2) motion. ¶¶38, et seq.
Habeas Corpus -- Procedural Requirements -- Adequate Alternative Remedy
State ex rel. William E. Marberry v. Macht, 2003 WI 79, reversing 2002 WI App 133, 254 Wis. 2d 690, 648 N.W.2d 522
For Marberry: Donald T. Lang, SPD, Madison Appellate
¶23. The extraordinary relief provided by the writ of habeas corpus is available only in limited circumstances and is subject to three prerequisites. Haas , 252 Wis. 2d 133, ¶12. First, the petitioner must be restrained of his liberty. Id. Second, the restraint must have been imposed without jurisdiction or contrary to constitutional protections. Id. Third, the petitioner must demonstrate that there are no other adequate remedies available in the law. Id. Absent a showing that all three criteria are met, the writ of habeas corpus will not issue. Id.
(The 3-vote lead opinion goes on to conclude that because mandamus would lie to compel observance of the right at issue in this particular instance – violation of the mandatory time limit for periodic reexamination under § 980.07 – an adequate remedy exists at law and habeas therefore isn’t supported. ¶27. The lead opinion does not, however, explain how mandamus – itself an extraordinary writ requiring no adequate remedy at law, Pasko v. City of Milwaukee, 2002 WI 33, ¶24, 252 Wis. 2d 1, 643 N.W.2d 72 – can serve as an adequate remedy at law. Perhaps the combination of mandamus and contempt affords a calculus which transforms an extraordinary remedy into a legal one. In any event the 3-vote concurrence explicitly disagrees that mandamus is a viable alternative, ¶37, but agrees for unstated reasons that the Marberry isn’t entitled to relief. Whether this is because habeas isn’t a suitable vehicle isn’t spelled out. In other words, all 6 voting justices agree that Marberry is not entitled to relief, but there is simply no majority view as to the rationale; it is therefore quite doubtful that the holding is that mandamus, even when combined with contempt, is a suitable alternative remedy at law.)
Habeas Corpus -- Procedural Requirements -- Adequate Alternative Remedy
State ex rel. Gerard Noel Haas v. McReynolds, 2002 WI 43, affirming unpublished court of appeals decision
For Haas: Robert G. Bernhoft
Issue/Holding: By voluntarily dismissing an appeal from denial of a first habeas petition, Haas was estopped from filing a second habeas petition in the court of appeals raising the same issue contained in the first petition. (That is, because Haas had an alternate, adequate remedy to challenging denial of the first petition -- appeal of that denial -- he's not entitled to a separate writ.) ¶¶ 14-20.
Habeas corpus - right to raise statutory violation.
State ex rel. Michael J. Hager v. Marten, 226 Wis.2d 687, 594 N.W.2d 791 (1999), affirming unpublished decision.
For Hager, Gerhardt F. Getzin, SPD, Wausau.
Issue/Holding: "(A) question of statutory interpretation may be considered on a writ of habeas corpus only if noncompliance with the statute at issue resulted in the restraint of the petitioner's liberty in violation of the constitution or the court's jurisdiction," ¶ 2.
Habeas Corpus -- Venue
State ex rel. Steven M. Rupinski v. Smith, 2007 WI App 4
For Rupinski: Daniel R. Drigot
Issue/Holding: ¶12 n. 3:
The State challenges the venue of Milwaukee County as improper because Rupinski is confined at the Oshkosh Correctional Institution located in Winnebago County. The State argues that, as a result, the writ was improperly filed under Wis. Stat. § 801.50(4).

  The proper venue for writ of habeas corpus shall be in the county “[w]here the plaintiff was convicted or sentenced if the action seeks relief from a judgment of conviction or sentence under which the plaintiff’s liberty is restrained” or “[w]here the liberty of the plaintiff is restrained if the action seeks relief concerning any other matter relating to a restraint on the liberty of the plaintiff.” Wis. Stat. § 801.50(4)(a), (b).

  However, a “court may at any time, upon its own motion, the motion of a party or the stipulation of the parties, change the venue to any county in the interest of justice or for the convenience of the parties or witnesses.” Wis. Stat. § 801.52.

  We note from an examination of the record that Rupinski moved the circuit court of Milwaukee to exercise its discretion pursuant to Wis. Stat. § 801.52 to permit the venue to be Milwaukee County. For reasons of judicial economy, the motion was granted. Based upon the record, the trial court did not erroneously exercise its discretion.

See also State ex rel Edwin C. West v. Bartow, 2002 WI App 42, ¶¶9-10 (transfer of habeas venue from county of confinement to county where judgment entered because latter has “all of the documents, regarding the judgment that’s being attacked,” satisfied § 801.52 standard for exercising discretion).
Habeas Corpus -- Venue
State ex rel Edwin C. West v. Bartow, 2002 WI App 42
For West: Leonard D. Kachinsky
Issue: Whether the court had discretion to order change of venue from Winnebago (county of current SVP confinement) to Milwaukee (county of commitment), on habeas challenge to the commitment.
Holding: Venue was proper in Winnebago under § 801.50(4)(b) (where petitioner is being restrained); the trial court’s transfer mistakenly relied on § 801.50(4)(a) (where petitioner was convicted or sentence, if seeking relief from conviction or sentence). ¶¶ 5-6. Nonetheless, a proper result will be sustained even if based on the wrong reason. ¶ 7. Transfer of venue is discretionary under § 801.52, 'in the interest of justice or for the convenience of the parties or witnesses.' In transferring venue, the trial court stressed that Milwaukee has 'all of the documents, regarding the judgment that’s being attacked'; this is enough to satisfy the § 801.52 standard for exercising discretion. ¶¶ 9-10.

Federal Remedy
(7th Circuit -- review of state (emphasis: Wisconsin) court judgments)



Procedure -- Appellate

Procedure -- Appellate -- Certificate of Appealability
Procedure -- Appellate -- Certificate of Appealability: Necessity
Rufus West v. Schneiter, 7th Cir. No. 06-4359, 5/4/07
Issue/Holding: "we now join the other circuits that have considered this issue and hold that §2253(c)(1) requires a certificate of appealability for any appeal in a proceeding under §2255 or where 'the detention complained of arises out of process issued by a State court.'”
The court acknowledges that "(a) notice of appeal acts as a request for a certificate whether or not the prisoner files a separate application," but stresses: "a petitioner who relies on his notice of appeal is hard put to meet the statutory standard, for ... (a) notice of appeal does not give reasons, and a silent document rarely constitutes a 'substantial showing' of anything."
Procedure -- Appellate -- Certificate of Appealability: Ineffective Assistance of Counsel Claim Dennis Thompson, Jr. v. Battaglia, 7th Cir. No. 04-3110, 8/14/06
Issue/Holding: Because (c)ounsel's work must be assessed as a whole," an ineffective-assistance claim is a single ground for relief for certificate of appealability purposes, though R. 2(c), Rules Governing Section 2254 Cases, does require that the petitioner specify all grounds for relief along with supporting facts.
Procedure -- Appellate -- Certificate of Appealability: FRCP 60(b) Motion
Michael A. Sveum v. Smith, 7th Cir. No. 05-1255, 3/31/05
Issue/Holding: Denial of FRCP 60(b) motion to reopen, which was in effect a "mislabeled habeas corpus petition reasserting" previously rejected claim, required certificate of appealability. Holding adopted of Jones v. Braxton, 392 F.3d 683, 688 (4th Cir. 2004) (district court’s dismissal of motion, on ground it is unauthorized successive collateral attack, constitutes final order within 28 U.S.C. § 2253(c) and therefore requires certificate of appealability).
See Joseph Arrieta v. Battaglia, No. 04-3050, 8/24/06 for detailed discussion of Rule 60, especially its relation to unexhausted-claim petition (summary here). Also see, Gonzales v. Crosby, 125 S. Ct. 2641 (2005) (essentially limiting Rule 60(b) to attack on integrity of federal habeas proceeding, as opposed to substantive ground for relief). However, this also means that where the district court dismisses the petition without reaching the merits of the claims in the petition, the petitioner may file a Rule 60 to reopen without first obtaining judicial authorization, Butz v. Mendoza-Powers, 9th Cir No. 06-71137, 2/1/07.

And, albeit without citing Sveum, Carlos Curry v. U.S., 7th Cir No. 07-1658, 11/8/07: because court of appeals' permission is required for a successive petition, where "a Rule 60(b) motion to vacate judgment is really a successive postconviction claim," the district court lacks jurisdiction to rule on it without such permission; and any such ruling will be vacated.

Procedure -- Appellate -- Non-Final Order (Dismissal with Leave to Re-file After Exhausting State Remedies)
Alan O. Moore, Sr. v. Mote, 7th Cir. No. 03-3213, 5/17/04
Issue/Holding: Dismissal with leave to refile following exhaustion of state court remedies doesn't support a notice of appeal:
Generally, this court has jurisdiction only to review final judgments, 28 U.S.C. § 1291. The district court’s order dismissing the case without prejudice is not final because it explicitly contemplates the court’s continuing involvement in the case ....

This court has held that there are “special circumstances” under which the dismissal of a case without prejudice may constitute a final appealable order. See Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir. 2001). Special circumstances are present when it is clear that it is impossible for the plaintiff to amend the filing to remedy the problem that prompted the dismissal. See Furnace v. Bd. of Tr. of S. Ill. Univ., 218 F.3d 666, 669 (7th Cir. 2000). No special circumstances exist here because Moore can easily return to state court, conclude his pending action, and then submit the state court decision (either confirming or disproving the district court’s belief that state remedies remain available to Moore) to the district court. Cf. Strong v. David, 297 F.3d 646, 648 (7th Cir. 2002) (district court order is final because petitioner had exhausted all administrative remedies and there were no further state remedies available).


Moore now has two options. His safest course of action would be to return to state court and conclude his postconviction proceedings....

Moore’s second, and more risky, option is to ask the district court to enter a final judgment on its order dismissing the petition....

Moore reaffirmed (re: dismissal without prejudice to permit state court exhaustion), in James P. Dolis v. Chambers, 05-3781, 7/24/06.
Procedure -- Appellate -- Certificate of Appealability -- Untimely 2254 Petition
Terrance Bernard Davis v. Borgen, 7th Cir. 03-2354, 11/20/03
Issue/Holding: A certificate of appealability of dismissal of a habeas petition filed four years after the deadline is vacated:
To recap the statutory requirements: (1) A certificate of appealability may be issued only if the prisoner has at least one substantial constitutional question for appeal. 28 U.S.C. §2253(c)(2). (2) The certificate must identify each substantial constitutional question. 28 U.S.C. §2253(c)(3); Beyer v. Litscher, 306 F.3d 504 (7th Cir. 2002). (3) If there is a substantial constitutional issue, and an antecedent non-constitutional issue independently is substantial, then the certificate may include that issue as well. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); Owens v. Boyd, 235 F.3d 356 (7th Cir. 2000). (4) Any substantial nonconstitutional issue must be identified specifically in the certificate. 28 U.S.C. §2253(c)(3). (5) If success on a nonconstitutional issue is essential (compliance with the statute of limitations is a good example), and there is no substantial argument that the district judge erred in resolving the non-constitutional question, then no certificate of appealability should issue even if the constitutional question standing alone would have justified an appeal. See Anderson v. Litscher, 281 F.3d 672 (7th Cir. 2002).

The certificate issued here does not satisfy these requirements. The district judge did not find that any of Davis’s constitutional arguments is substantial. The certificate does not specify any constitutional issue to be resolved in this court. The judge did not find that the statute of limitations issue is independently substantial, nor does the certificate list timeliness as an issue for appeal. Finally, because there is no substantial argument (no argument, period) that Davis’s petition is timely, it would be inappropriate to issue a certificate even if one or more constitutional contentions had been substantial, for it is pointless to brief the merits when the statute of limitations halts the proceedings at the threshold.

Procedure -- Appellate -- Certificate of Appealability
Bernard L. Beyer v. Litscher, 306 F.3d 504 (7th Cir. 2002)
Issue/Holding: Certificate of Appealability required by 28 U.S.C. § 2253(c)(3) must specifically identify a substantial constitutional issue. Declaration of purely statutory issue isn't enough, and it is incumbent on counsel to bring this defect to the appellate court's attention. Nonetheless, this appellant is allowed to proceed, though future litigants are cautioned: "Future petitioners and their lawyers should undertake to show that a substantial constitutional issue exists, however, lest the court of appeals conclude that the procedural error is harmless and a remand pointless."
Procedure -- Appellate -- Certificate of Appealability -- Prison / Jail Discipline
Clyde Piggie v. Cotton, 344 F.3d 674 (7th Cir. 2003)
Issue/Holding: Requirement of certificate of appealability doesn't apply to habeas challenge to state disciplinary proceeding, citing Walker v. O'Brien, 216 F.3d 626 (7th Cir. 2002).
Rule reaffirmed: Edward D. Anderson v. Benik, No. 05-2323, 12/20/06 But for another circuit's rejection of this approach, creating a potentially cert-worthy split, see Medberry v. Crosby, footnote 10, 11th Cir. No. 02-11072, 11/25/03
Procedure -- Appellate -- Certificate of Appealability -- Erroneous Issuance
Darrell D. Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002)
For Cage: Calvin R. Malone
Issue/Holding: "When we make a mistake and issue a certificate of appealability that specifies an improper ground, counsel for both sides, rather than indulging a fiction of judicial infallibility, should inform us before briefing begins and ask us to amend the certificate, which is within our power because even an 'unfounded' certificate of appealability confers jurisdiction on us."
Procedure -- Appellate -- Jurisdiction -- Timeliness of NOA -- Prison Mailbox Rule
Edmund Ingram v. Jones, Nos. 06-2766 & 06-2879, 11/14/07
Issue/Holding: If a prison has a "legal mailing system," and the inmate isn't obligated to pay postage for legal mail, then the notice of appeal may be deemed filed when deposited in the system even without prepaid postage. However, "if a prison does not have a legal mailing system, the prisoner is required to show, through a declaration or notarized statement, that his notice was timely filed in order to benefit from the mailbox rule." Note that, at least as of the date of this opinion, Waupun did not have a separate legal mailing system, so that the inmate's deposit of mail without prepaid postage failed to trigger the mailbox rule and resulted in an untimely NOA.
Procedure -- Appellate -- Recall Mandate
Michael Allen Lambert v. Buss, Nos. 03-1015 & 05-2610, 6/12/07
Issue/Holding: A motion to recall the mandate is subject to successive-petition restrictions.

Procedure -- Appellate -- Standard of Review

Procedure -- Appellate -- Standard of Review -- "Clearly Established" Precedent -- Supreme Court Reservation of Ruling on Issue
Donald Calloway v. Montgomery, No. 07-1148, 1/14/08
Issue/Holding: Where the Supreme Court has expressly declined to rule on the issue (or on one in a very similar) context) to the issue on habeas review, there is no clearly established precedent within the meaning of AEDPA. (Andrew Lockhart v. Chandler, 446 F.3d 721 (7th Cir 2006) (challenge to lack of knowledge of mandatory additional term of supervised release not cognizable) followed.)
Procedure -- Appellate -- Standard of Review -- State Court Adjudication on Merits
Allen A. Muth v. Frank, 412 F.3d 808 (7th Cir 2005)
Issue/Holding: AEDPA requirement of state court adjudication on merits requires neither "well-articulated or even correct decision"; state court need not offer any reasons, so that summary disposition would satisfy requirement. In short: it “is perhaps best understood by stating what it is not: it is not the resolution of a claim on procedural grounds.”
Followed: Joseph M. Malinowski v, Smith, 06-3075, 11/27/07 (state court's rejection of argument solely on basis of discussion of state privilege nonetheless represents adjudication on merits of due process challenge).
Procedure -- Appellate -- Standard of Review -- State Court Failure to Adjudicate Merits, Effect of
Larry W. Myartt v. Frank, 7th Cir No 04-2115, 1/21/05
... AEDPA standards apply only to claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). In the instant case, the Wisconsin Court of Appeals did not address Myartt’s ineffective assistance claim, which is unsurprising because Myartt’s pro se filing failed to develop the claim or discuss relevant Sixth Amendment principles. In these circumstances, it is impossible to determine whether the state court’s decision involved an unreasonable application of Strickland. We agree with the district court that Myartt’s ineffective assistance of counsel claim was not adjudicated on the merits in any meaningful sense; consequently, we apply the pre-AEDPA standard of review, which requires us to “dispose of the matter as law and justice require.” Braun v. Powell, 227 F.3d 908, 917 (7th Cir. 2000).
Procedure -- Appellate -- Standard of Review, Generally
Alphonso Hubanks v. Frank, 04-1043, 12/22/04
For Hubanks: Robert J. Dvorak
Habeas relief is appropriate pursuant to § 2254(d)(1) if the state court identified the right legal principle as determined by the Supreme Court but unreasonably applied that principle to the facts of the case. The standard for proving an unreasonable application of federal law, however, is more demanding than for proving an erroneous application of that law. Schaff v. Snyder, 190 F.3d 513, 523 (7th Cir. 1999). We review legal questions and mixed questions of law and fact de novo, but uphold decisions that are either “minimally consistent with the facts and circumstances of the case” or “one of several equally plausible outcomes.” Id. at 522-23. A state court’s findings of fact are presumed correct. Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir. 1999). The reasonableness of these findings can be overcome only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Procedure -- Appellate -- Standard of Review -- Successive Application, 28 U.S.C. § 2241(b) -- Pretrial Habeas Petition: De Novo Review of State Court Ruling
Chris Jacobs v. McCaughtry, 251 F.3d 596 (7th Cir. 2001)
Jacobs now argues that the petition he wishes to file is not a second or successive collateral attack within the meaning of sec. 2244. We agree. Jacobs's first petition is properly classified as a sec. 2241 petition because it was filed pretrial and not while he was "in custody pursuant to judgment of a state court." ... And sec. 2244, by its terms, does not apply to petitions brought under sec. 2241. ...
See also discussion below, embellishing idea that a 2241 petition, unlike the typical, 2254 petition, supports de novo rather than deferential review.
Procedure -- Appellate -- Standard of Review -- State Court Reference to Federal Law
Theodore W. Oswald v. Bertrand, 7th Cir. No. 03-2092, 6/29/04, granting habeas relief on review of State v. Theodore Oswald, 2000 WI App 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting
Ordinarily it would be clear that the issue for the district court and us would be whether in turning down Oswald’s claim of constitutional error the state courts had made “an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). But this is only if the prisoner’s claim was adjudicated by the state court “on the merits.” § 2254(d). If not, the special deference to a state court’s determinations that is prescribed by section 2254(d)(1) goes by the board. Braun v. Powell, 227 F.3d 908, 916-17 (7th Cir. 2000); Moore v. Parke, 148 F.3d 705, 708 (7th Cir. 1998); Maples v. Stegall, 340 F.3d 433, 436-37 (6th Cir. 2003). The state appellate court discussed and disposed of Oswald’s claim that the jury selection procedure used in his case had denied him an impartial tribunal, but it did not discuss the claim with reference to federal law. No matter. So long as the standard it applied was as demanding as the federal standard, Mitchell v. Esparza, 124 S. Ct. 7, 10 (2003) (per curiam); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Reid v. True, 349 F.3d 788, 799-800 (4th Cir. 2003); Sellan v. Kuhlman, 261 F.3d 303, 311-14 (2d Cir. 2001)—and there is no suggestion that it was not, cf. Hammill v. State, 278 N.W.2d 821, 822 (Wis. 1979)—the federal claim is deemed adjudicated on the merits and its rejection therefore entitled in this habeas corpus proceeding to the deference prescribed by section 2254(d)(1).
Like effect: Conner v. McBride, 7th Cir. No. 03-1951, 7/20/04.
Procedure -- Appellate -- Standard of Review -- State Procedural Ground / Default
Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003)
A federal court entertaining a petition for a writ of habeas corpus will not review a question of federal law if it determines that the state decision rests on a state procedural ground that is independent of the federal question and adequate to support the judgment. See Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2002); Braun v. Powell, 227 F.3d 908, 912 (7th Cir. 2000). Simply stated, the independent and adequate state ground doctrine bars "'federal habeas when a state court [has] declined to address a prisoner's federal claims because the prisoner [has] failed to meet a state procedural requirement.'" Moore, 295 F.3d at 774 (quoting Coleman v. Thompson, 501 U.S. 722, 729-30 (1991)). In assessing whether a state court ruling is based on an "independent and adequate" determination of state law, the federal court must refer to the decision of the last state court to have ruled on the merits. See Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002); Brooks v. Walls, 279 F.3d 518, 522 (7th Cir. 2002). In this case, the last ruling on the merits by a Wisconsin state court is the May 19, 1999, decision of the Court of Appeals of Wisconsin. See R.11, Ex.F. We review de novo a district court's determination that an individual has procedurally defaulted a claim. See Moore, 295 F.3d at 774; Braun, 227 F.3d at 911- 12. In determining whether a claim has been procedurally defaulted, we look to Wisconsin law. See Thomas v. McCaughtry, 201 F.3d 995, 1000 (7th Cir. 2000) (stating that, in a federal habeas proceeding, state law controls whether a claim has been defaulted); Franklin v. Gilmore, 188 F.3d 877, 881 (7th Cir. 1999) (same).
The district court's procedural default ruling is reviewed de novo, Cedell Davis v. Lambert, 7th Cir. Case No. 02-2838, 11/4/04.
Procedure -- Appellate -- Standard of Review -- State Court Findings
Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003)
Unreasonableness also serves as the touchstone against which state court decisions based upon determinations of fact in light of the evidence presented are evaluated. 28 U.S.C. § 2254(d)(2). As is the case under § 2254(d)(1), a petitioner’s challenge to a decision based on a factual determination will not succeed if the petitioner merely evidences that the state court committed error. Instead, he must further establish that the state court committed unreasonable error. And § 2254(e)(1) provides a mechanism by which the petitioner can prove that unreasonableness. If the petitioner can show that the state court determined the underlying factual issue against the clear and convincing weight of the evidence, the petitioner has not only established that the court committed error in reaching a decision based on that faulty factual premise, but has also gone a long way towards proving that it committed unreasonable error. A state court decision that rests upon a determination of fact that lies against the clear weight of the evidence is, by definition, a decision “so inadequately supported by the record” as to be arbitrary and therefore objectively unreasonable. Hall, 106 F.3d at 749; cf. Miller-El v. Cockrell, 123 S. Ct. 1029, 1041-42 (2003) (rejecting the Fifth Circuit’s requirement that a petitioner prove the unreasonableness of the state court’s decision by clear and convincing evidence).
So much of standard of review case law discussion is (for obvious reasons) numbingly mechanistic boilerplate, that it is worth taking particular note of this discussion that departs dramatically from the norm, and nicely focuses on the importance of rigorous scrutiny:
In instructing jurors about their fact-finding function, we normally advise them to consider the entire record, not individual pieces of evidence standing alone.... Fact-finding is thus a dynamic, holistic process that presupposes for its legitimacy that the trier of fact will take into account the entire record before it.

What goes for juries goes no less for judges. In making findings, a judge must acknowledge significant portions of the record, particularly where they are inconsistent with the judge’s findings.... On occasion, an effort to explain what turns out to be un-explainable will cause the finder of fact to change his mind. By contrast, failure to take into account and reconcile key parts of the record casts doubt on the process by which the finding was reached, and hence on the correctness of the finding....

Failure to consider key aspects of the record is a defect in the fact-finding process.... When we determine that state-court fact-finding is unreasonable, therefore, we have an obligation to set those findings aside and, if necessary, make new findings.

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004). See also Teti v. Bender, 1st Cir No. 06-2371, 11/8/07 (noting that methodology for review of and deference to state court findings remains unsettled).
Procedure -- Appellate -- Standard of Review -- State Court Findings, Need Not Be Based on Evidentiary Hearing for Deference under 28 USC § 2254(e)(1)
Mendiola v. Schomig, 224 F.3d 589 (7th Cir. 2000)
The foundation of Mendiola's position--that only trial judges may make factual findings, and then only after hearings dedicated to the contested issue--is unsound. Sumner v. Mata, 449 U.S. 539, 546-47 (1981), holds that state appellate courts' findings are entitled to the same respect that trial judges' findings receive. What is more, § 2254(e)(1) does not require findings to be based on evidentiary hearings. This is a major difference between § 2254(e), part of the Antiterrorism and Effective Death Penalty Act of 1996, and its predecessor 28 U.S.C. (1994 ed.) § 2254(d). The former statute required deference to "a determination after a hearing on the merits of a factual issue" unless one of eight conditions was satisfied. Section 2254(e), by contrast, omits any mention of a hearing. If a state court's finding rests on thin air, the petitioner will have little difficulty satisfying the standards for relief under § 2254. But if the state court's finding is supported by the record, even though not by a "hearing on the merits of [the] factual issue", then it is presumed to be correct.
Procedure -- Appellate -- Standard of Review -- IAC Claim -- State Court's Misstatement of Defendant's Burden to Prove Prejudice -- De Novo Review of Prejudice
Russell Martin v. Grosshans, 7th Cir No 04-4247, 9/15/05, granting habeas relief, in unpublished decision of Wis COA
... In its opinion, the Wisconsin Court of Appeals incorrectly placed the burden on Martin to “show that, but for defense counsel’s unprofessional errors, the result of the proceeding would have been different.” ... The Wisconsin court’s prejudice analysis was contrary to Strickland and is not entitled to deference; we therefore review the issue of prejudice de novo, applying the correct standard. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
Procedure -- Appellate -- Standard of Review -- IAC Claim -- State Court Failure to Discuss Deficient Performance -- De Novo Review of That Portion of Federal Claim
Linnell Harding v. Sternes, No. 03-2672, 8/23/04
Issue/Holding: State court's failure to address deficient performance on a claim of ineffective assistance of counsel (state court rejected claim on basis of no prejudice) leads to de novo habeas review.
Like effect: Dugas v. Coplan, 1st Cir No. 04-1776, 10/31/05 ("Since the state court never decided the question of prejudice [on an IAC claim], we review that issue de novo").
Procedure - Appellate - Standard of Review - "Clearly Established Federal Law" - Remote Appearance by Counsel
Wright v. Joseph L. Van Patten, USSC No. 07-212, 1/7/08
Prior history: Joseph Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), reinstated, No. 04-1276, 6/29/07, on remand from the Supreme Court "for further consideration in light of Carey v. Musladin, 549 U. S. ___ (2006)"; on habeas review of, unpublished opinion of Wis COA
For Van Patten: Linda T. Coberly
Our precedents do not clearly hold that counsel’s participation by speaker phone should be treated as a ‘complete denial of counsel,’ on par with total absence. … Because our cases give no clear answer to the question presented, let alone one in Van Patten’s favor, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’ ” Musladin, 549 U. S.,at ___ (slip op., at 6) (quoting 28 U. S. C. §2254(d)(1)). Under the explicit terms of §2254(d)(1), therefore, relief is unauthorized.
The 7th Circuit's application, on remand from the Court, of Musladin to counsel's appearance by speaker phone at a plea proceeding (as tantamount to denial of counsel) is thereby reversed:
Unlike Musladin, this case does not concern an open constitutional question. The Supreme Court has long recognized a defendant’s right to relief if his defense counsel was actually or constructively absent at a critical stage of the proceedings. Neither § 2254 nor Musladin limits relief to the precise factual situations addressed in the Supreme Court’s previous cases. The technology employed in taking Van Patten’s no contest plea (the use of a speakerphone) may have been novel, but the legal principle presented by the case was not. Our 2006 opinion and judgment are reinstated.
Procedure -- Appellate -- Standard of Review -- "Unreasonable Application" / State Court Failure to Adjudicate Claim on Merits
Fairly W. Earls v. McCaughtry, 7th Cir. No. 03-2364, 8/16/04, granting habeas relief in unpublished decision of Wis. COA
For one portion of the analysis below, we apply the pre- AEDPA standard of review because the State court did not adjudicate an aspect of a Federal claim on its merits. Walton v. Briley, 361 F.3d 431, 432 (7th Cir. 2004). That portion of the opinion deals with the prong of the Strickland test that considers whether an attorney’s performance was deficient. Under the pre-AEDPA standards we review questions of law and mixed questions of law and fact de novo. Dye v. Frank, 355 F.3d 1102, 1107 (7th Cir. 2004).
Like effect: Keith B. Canaan v. McBride, 7th Cir No 03-1384, 1/11/05 ("When a state court is silent with respect to a habeas corpus petitioner’s claim, that claim has not been 'adjudicated on the merits' for purposes of § 2254(d); and in that event, review is under the general standard of 28 U.S.C. § 2243 rather than the more restrictive AEDPA standard).
Procedure -- Appellate -- Standard of Review -- "Unreasonable Application"
Henderson v. Briley, 00-3834, 1/16/04
According to 28 U.S.C. § 2254(d)(1), a federal court may grant a petition for a writ of habeas corpus only if the state court’s adjudication of the relevant claims “resulted in a decision that . . . involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States.” As we noted in our original opinion and as the Supreme Court reiterated in Visciotti, review under this statute is “severely restricted.” Henderson, 296 F.3d at 545 citing Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir. 1999). In Visciotti, the Court held that “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied Strickland incorrectly.” Visciotti, 537 U.S. at 24-25. This means that the question before a federal court on collateral review under this part of the statute is only whether the state court’s decision was so far out-of-bounds as to be “unreasonable.” In making that decision, we must take into account both the procedural and the substantive aspects of the state court’s action.
Also see Barrow v. Uchtman, 7th Cir No 03-3622, 2/15/05.
Procedure -- Appellate -- Standard of Review -- "Unreasonable Application"
Frederick G. Jackson v. Frank, 02-1979, 11/6/03, reversing Jackson v. Litscher, 194 F.Supp.2d 849 (E.D. Wis 2002), on review of State v. Jackson, 229 Wis. 2d 328, 600 N.W.2d 39 (Ct. App. 1999)
For Jackson: Melinda A. Swartz, Milwaukee Appellate
On-line brief
... Jackson does not suggest that the decision of the Wisconsin appellate court was “contrary to” clearly established federal law, but instead contends that it unreasonably applied clearly established federal law to his case. This is a difficult standard to meet; “unreasonable” means “something like lying well outside the boundaries of permissible differences of opinion.” Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002). We have held that under this criterion, habeas relief should not be granted if the state court decision can be said to be one of several equally-plausible outcomes. Boss v. Pierce, 263 F.3d 734, 742 (7th Cir. 2001). Indeed, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable.” Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 411, 409 (2000)).

Within the framework of § 2254(d)(1), we review the district court’s grant of the petition de novo. Dixon v. Snyder, 266 F.3d 693, 700 (7th Cir. 2001). And “[w] hether the state court’s holding involved an ‘unreasonable application’ of clearly established federal law, as determined by the Supreme Court, is a mixed question of law and fact that we traditionally also review de novo but with a grant of deference to any reasonable state court decision.” Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999) (emphasis in original).

Procedure -- Appellate -- Standard of Review -- "Unreasonable Application"
Vonaire T. Washington v. Smith, 219 F.3d 620 (7th Cir. 2000)
For Washington: Robert R. Henak
The analysis under the "unreasonable application of" clause, however, seems broader in that it allows a federal habeas court to grant habeas relief whenever the state court "unreasonably applie[d] [a clearly established] principle to the facts of the prisoner's case." Williams, 120 S. Ct. at 1523. But, lest we think that this provides us grounds for independent review of state court decisions on questions of federal law, the Supreme Court cautions that we must bear in mind that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 1522 (emphasis in original). When determining if a state court decision "involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States," it seems that we are not permitted to substitute our independent judgment as to the correct outcome--as we could in a context, for example, where we review a federal district court decision de novo. Rather, a federal habeas court operating pursuant to sec. 2254(d)(1) must only ask if the state-court decision was reasonable. Or, to put it slightly differently, we must determine that the state-court decision was both incorrect and unreasonable before we can issue a writ of habeas corpus. See id.
Procedure -- Appellate -- Standard of Review -- 28 USC § 2254 Review of Prison Discipline
David Pannell v. McBride, 306 F.3d 499 (7th Cir. 2002)
Issue/Holding: "(T)he deferential lens prescribed by 28 U.S.C. § 2254(d)(1)" only applies to a state court's adjudication on the merits; because a prison disciplinary board is not a "court," review on federal habeas of its determination is de novo.
Followed, Shawn Johnson v. Finnan, No. 06-1509, 11/2/06.
Implications are much broader than the review-regime: throwing disciplinary proceedings outside the statutory strictures applying to state "court" adjudications also means that habeas review of prison discipline isn't bound by the same time-limit rules; see cases under that topic.
Procedure -- Appellate -- Standard of Review -- Absence of Controlling Supreme Court Precedent: Judge's Sua Sponte Duty to Dismiss Juror
Darrell D. Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002)
For Cage: Calvin R. Malone
Issue/Holding: Because the Supreme Court has never announced a rule obliging a trial judge to dismiss a juror for cause in the absence of objection to the juror, habeas may not be premised on such a claim.
Procedure -- Appellate -- Standard of Review -- Harmless Error
Obadyah Ben-Yisrayl v. Davis, 431 F3d 1043 (7th Cir. 2005)
... When the state court concludes that any error was or would be harmless, that finding is subject to the same standard of review as is any other legal conclusion—de novo. Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam). That is, we must accept it unless it is contrary to or represents an unreasonable application of clearly established federal law. Mitchell, 540 U.S. at 17-18. In Chapman v. California, 386 U.S. 18 (1967), the Supreme Court set forth the test for determining whether a constitutional error is harmless. The test is whether it appears “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 24. If the error complained of contributed to the verdict obtained, then the error is not harmless. Id.
UPDATE: Harmless error analysis must now account for Fry v. Pliler, 127 S.Ct. 2321 (2007) (2254 court must assess prejudicial impact under Brecht "substantial and injurious effect" standard, whether or not state court recognized the error and reviewed it under Chapman"harmless beyond a reasonable doubt" standard). Previous commentary, immediately below, remains posted for whatever value it might have.

The court had previously employed a 2-step process of harmless error analysis: first determine whether the state court decision was contrary to or an unreasonable application of Chapman v. California, 386 U.S. 18 (1967); if so, then the error must be tested under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (on collateral review the question is whether a constitutional error had a "substantial and injurious effect or influence in determining the jury's verdict"), Harry Aleman v. Sternes, 320 F.3d 687 (7th Cir. 2003). As another circuit decision puts it, Ben-Yisrael seems to have sub silentio overruled Aleman on this point: Eddleman v. McKee, 6th Cir No. 05-1493, 12/14/06. But see Inthavong v. Lamarque, 9th Cir No. 03-57075, 8/23/05 (following Aleman, and collecting cases). Eddleman also raises the somewhat counter-intuitive idea that "deference is weaker when a state court found an error to be harmless than when it found no error at all"; thus, review of found error continues to be made under the Brecht regime. This is, it should be noted, an issue on which the circuits have split, thus creating the potential for cert. review. See generally Gutierrez v. McGinnis, 2nd Cir. No. 03-2560, 11/15/04, cataloging split in fn. 6, and holding: "Mitchell signals, and we therefore hold, that when a state court explicitly conducts harmless error review of a constitutional error, a habeas court must evaluate whether the state unreasonably applied Chapman. We do not presently reach the issue of whether or how to apply Brecht where the state court has not engaged in harmless error review, as, of course, those facts are not before us." To same effect, see another 2nd Circuit case decided two days later, amended file posted 12/7/04, Zappulla v. People, 2nd Cir No. 03-2793 (dissent noting, fn. 3: "The majority’s opinion might be read to hold that a determination of objective unreasonableness by itself warrants granting a writ of habeas corpus." And collecting cases from other circuits, id., which, "however, have concluded that a second step of analysis is required," i.e., a Brecht analysis).

Procedure -- Default/Waiver

Procedure - Default - Cause: Lack of Access to Prison Library
Carlos K. Williams v. Buss, No. 07-1092, 8/14/08
Issue/Holding: Failure to seek discretionary review in the state supreme court defaulted petitioner's 2254 habeas claim; cause for default isn't found in the claimed lack of access to the prison library, or in petitioner's "borderline" mental retardation:
... This court examines claims of cause based on lack of access to a library on a case-by-case basis. See, e.g., O’Donnell v. Davis, 115 F. App’x 869, 871-72 (7th Cir. 2004). Williams does not explain why the lack of access to the library hindered his case: the deficiencies indicated by the state appeals court were clerical, not substantive, and may well have been curable without access to the library. ...
Procedure - Default - IAC Analysis
Matthew E. Wrinkles v. Buss, No. 05-2747, 8/12/08
Attorney error rising to the level of ineffective assistance of counsel can constitute cause to set aside procedural default. Franklin v. Gilmore, 188 F.3d 877, 883 (7th Cir. 1999) (citing Coleman v. Thompson, 501 U.S. 722, 753-54 (1991); Barnhill v. Flannigan, 42 F.3d 1074, 1078 (7th Cir. 1994)). When a habeas petitioner seeks to excuse a procedural default through an ineffective-assistance claim, the “cause” and “prejudice” test from Wainwright is replaced by the similar test for ineffective assistance set out in Strickland v. Washington, 466 U.S. at 668. ...
Obvious lesson: if, in state court, there's even a colorable possibility of being hit with a waiver bar on a constitutional issue, you might as well argue that counsel was ineffective for waiving it; you're going to end up making the same argument regardless.
Procedure - Forfeiture - Postconviction
Earl Johnson v. Loftus, No. 06-3463, 2/21/08
The claim, however, was procedurally defaulted. The state appellate court explicitly held that Johnson waived the argument by failing to comply with the Illinois procedural requirement that petitioners raise all claims in their postconviction petition.

As we said in Szabo v. Walls, 313 F.3d 392, 395 (2002),

A state is entitled to treat as forfeited a proposition that was not presented in the right court, in the right way, and at the right time—as state rules define those courts, ways, and times.
Failure to comply with those rules furnishes an “independent and adequate state ground” that “blocks federal collateral review.” Id. We also found in Szabo that Illinois has long had a law which states that a prisoner is entitled to only one postconviction proceeding.
Procedure -- Default/Exhaustion -- Judicial Bias (Taking Bribes)
Anthony Guest v. McCann, No. 04-3736, 1/18/07
In order to demonstrate cause for failure to exhaust, Guest must demonstrate that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” See McCleskey v. Zant, 499 U.S. 467, 493 (1991) (quoting Murray v. Carrier, 477 U.S. 478 (1986)). The Court in McCleskey identified three types of “objective factors” that would constitute sufficient cause: (1) “interference by officials that makes compliance . . . impractical”; (2) constitutionally ineffective assistance of counsel; and (3) “a showing that the factual or legal basis for a claim was not reasonably available to counsel.” Id. The third factor is applicable here. The scattered news items and court filings identified by the respondent were insufficient to put Guest on notice. We cannot say that the factual basis for a judicial bias claim was “reasonably available” to counsel on the basis of the items cited by the respondent. A prisoner is not necessarily expected to be aware of even the most obscure news stories which might expose the basis for a claim of unconstitutional imprisonment. The district court did not address the question of actual prejudice, and we need not either since it is effectively subsumed by Guest’s substantive claim. There is no harmless error in a judicial bias case. See Bracy v. Schomig, 286 F.3d 406, 414 (7th Cir. 2002).
Procedure -- Default/Exhaustion -- Sentence Credit
Edward D. Anderson v. Benik, No. 05-2323, 12/20/06
In state court, Anderson relied solely upon Wisconsin law requiring the application of pre-sentence credits. ... Therefore, we hold, as the district court did, that Anderson’s claims are procedurally defaulted.

Despite this procedural default, we may hear Anderson’s claims if he either demonstrates cause for his default and prejudice resulting therefrom, or that a miscarriage of justice will result if we do not consider the merits of his case. ... Anderson has procedurally defaulted, and because he has not even alleged that he meets the requirements for these exceptions, we will not reach the merits of his claims.

Procedure -- Waiver -- No Contest/Guilty Plea: Double Jeopardy Claim
James Gomez v. Berge, No. 04-4051, 1/12/06
However, a defendant does not necessarily waive all constitutional claims when he enters a plea of guilty or no contest. Double jeopardy claims are one example. A plea of guilty or no contest does not forgive the unconstitutionality of an indictment. Menna v. New York, 423 U.S. 61, 63 (1975). ...

But the Supreme Court in Menna did not hold that a double jeopardy claim may never be validly waived. Menna, 423 U.S. at 63 n.2. In fact, double jeopardy rights may be waived by failing to preserve the issue for appeal. Peretz v. United States, 501 U.S. 923, 936 (1991) (citing with approval United States v. Bascaro, 742 F.2d 1335, 1364-65 (11th Cir. 1984) (holding that failure to raise the issue of double jeopardy at trial results in a waiver of that claim)). Here, when Gomez entered his plea, he did not preserve the double jeopardy issue for appeal. Rather, he entered an unconditional plea of no contest. His double jeopardy claim was waived.

Procedure -- Waiver -- No Contest/Guilty Plea: Denial of Self-Representation Claim
James Gomez v. Berge, No. 04-4051, 1/12/06
Issue/Holding: A no contest plea, like a guilty plea, waives the right to challenge precedent constitutional violations such as, in this instance, the claimed denial of right to self-representation.
Procedure -- Default / Exhaustion -- "Fairly Presents" Claim to State Court
James P. Harrison v. McBride, 04-1398, 10/27/05
Issue/Holding1: Four-part test of Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) survives Baldwin v. Reese, 541 U.S. 28 (2004):
1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation.
Issue/Holding2: By clearly presenting the federal nature of his claim on direct appeal to the Indiana supreme court, Harrison preserved his habeas claim:
Thus, the Supreme Court of Indiana did not have to read through all of the lower court opinions to understand that Mr. Harrison was raising a federal claim. The federal nature of the claim was articulated in his brief before the Supreme Court of Indiana, and, in support of that claim, Mr. Harrison explicitly referred the state supreme court to the areas in the record supporting his claim—as well as to prior briefing of the issue in the Supreme Court of Indiana itself. These factors clearly distinguish the present situation from Reese, and we conclude that Reese does not govern the petition presently before us.
Litigant may not present argument by incorporation in petition for review, in absence of state rule allowing same, James T. Lockheart v. Hulick, 7th Cir No. 04-3754, 4/12/06.
Procedure -- Default/Forfeiture -- Ineffective Assistance of Counsel Claim
Peter Lewis v. Sternes, 7th Cir No 03-4013, 12/6/04
As Lewis suggests and the State concedes, if his trial and/or his appellate attorneys were ineffective for failing to present these claims at trial and on direct appeal of his conviction, then their sub-par representation might supply cause for his procedural default of these claims. However, a claim of ineffectiveness must itself have been fairly presented to the state courts before it can establish cause for a procedural default of another claim. Edwards v. Carpenter, 529 U.S. 446, 452-54, 120 S. Ct. 1587, 1591-92 (2000). As we conclude below, Lewis procedurally defaulted his ineffectiveness claims in the Illinois courts. Consequently, his attorneys’ alleged ineffectiveness cannot excuse the default of Claims 1 and 3. Lewis alternatively has not attempted to demonstrate the possibility that a miscarriage of justice will occur if these claims are not heard. Accordingly, the merits of these claims cannot be entertained on habeas review.
Distinguished, Donchii Malone v. Walls, 06-3235, 8/18/08 ("Mr. Malone makes clear that he is asking the court to redress the failure of his trial counsel, an issue the court can reach if it determines that his appellate counsel also was ineffective. His presentation, therefore, does not suffer from the infirmities that we identified in the petitioner’s submissions in Lewis.").
Procedure -- Default and Exhaustion Requirement, Compared
Perruquet v. Briley, 7th Cir. No. 02-2981, 11/17/04
Issue/Holding: Exhaustion requires that the petitioner "fairly present" the constitutional claims to the state court; where that has not been done and further state remedy exists, the exhaustion doctrine precludes federal relief on the unexhausted claim. But where state remedy no longer exists, "the separate but related doctrine of procedural default" inhibits federal review.
... Thus, when the habeas petitioner has failed to fairly present to the state courts the claim on which he seeks relief in federal court and the opportunity to raise that claim in state court has passed, the petitioner has procedurally defaulted that claim. ... The procedural default doctrine does not impose an absolute bar to federal relief, however. ... A procedural default will bar a federal court from granting relief on a habeas claim unless the petitioner demonstrates cause for the default and prejudice resulting therefrom, ... or, alternatively, he convinces the court that a miscarriage of justice would result if his claim were not entertained on the merits ....
Procedure -- Default -- Waiver by State
Perruquet v. Briley, 7th Cir. No. 02-2981, 11/17/04
A petitioner’s procedural default does not deprive the federal court of jurisdiction over his habeas petition; rather, it is an affirmative defense that the State is obligated to raise and preserve, and consequently one that it can waive. ... Such a waiver may be explicit or implicit. ... Some courts have construed section 2254(b)(3)’s express-waiver requirement to apply to procedural default defenses arising from the petitioner’s failure to properly exhaust his remedies in state court while those remedies remained open to him. ... Other courts, noting the distinctions between the exhaustion and procedural default doctrines, have concluded that section 2254(b)(3) applies only when the State’s defense can accurately be labeled one of exhaustion rather than procedural default, i.e., where the state courts remain open to the petitioner and he can still exhaust his state remedies. ... We need not consider which of these two conflicting lines of authority is correct ....


What we have, then, is a simple failure of the State to assert a procedural default when it answered Perruquet’s habeas petition. The State’s silence on the subject of procedural default is normally not enough, standing alone, to demonstrate the intent to relinquish the defense that is the essence of true waiver. ...


At the same time, there are precedents from this circuit and others that recognize a federal appellate court’s discretion to address a procedural default even when the State has raised it for the first time on appeal....


We wish to emphasize that we are electing to address the State’s procedural default defense, notwithstanding its failure to assert the defense below, as a matter of discretion, and that we are by no means suggesting that this court or the district courts should routinely overlook the forfeiture of a procedural default defense. ... But the decision whether to assert an affirmative defense like procedural default lies with the Illinois Attorney General in the first instance, Bonner v. DeRobertis, supra, 798 F.2d at 1066 & n.3, and in the ordinary course of events, her failure to raise the defense in a timely manner will result in a forfeiture. That said, we proceed to consider whether Perruquet fairly presented his due process claim to the Illinois courts.

See also: Keith B. Canaan v. McBride, 7th Cir No 03-1384, 1/11/05 ("The State’s silence is significant because by failing to object to Canaan’s claim on procedural default grounds, the State has waived (or, more properly, forfeited) this argument"; court reiterates idea that "waiver of waiver" is "well-established doctrine); Peter Lewis v. Sternes, 7th Cir No 03-4013, 12/6/04 (citing Perruquet for idea that default is affirmative defense that State can waive same as any other; but adding that "waiver in the true sense occurs when a party intentionally relinquishes a known right," and finding no waiver where the State belatedly "awoke to its additional theories of procedural default").

BUT NOTE: The Supreme Court has since held that a district court has discretion to overlook a state's failure to plead a violation of the limitation period for filing the petition, and may dismiss the petition for that violation, Day v. McDonough, No. 04-1324, 4/25/06. See also Adell Jones v. Hulick, 7th Cir No. 04-2759, 6/1/06 (court allows statute of limitations defense to be raised for first time on appeal, where issue not difficult and facts established). But compare: Anthony Grigsby v. Cotton, No. 04-3356, 8/1/06 ("we must decide whether 'the interests of justice' require a resolution of the merits of a petition despite procedural defenses raised for the first time on appeal"; court declines to consider State's assertion of petition's untimeliness, where issue "was clear at the time the state filed its response").

Procedure -- Default / Exhaustion -- "Fairly Presents" Claim to State Court
Perruquet v. Briley, 7th Cir. No. 02-2981, 11/17/04
Issue/Holding: (Petitioner's citation, to state courts, of only state cases that did not themselves rely on federal constitutional analysis, amounted to default of an asserted federal basis for the claim:)
A petitioner fairly presents his federal claim to the state courts when he articulates both the operative facts and the controlling legal principles on which his claim is based. E.g., Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 2004). He need not “cit[e] ‘book and verse on the federal constitution.’ ” Picard v. Connor, supra, 404 U.S. at 278, 92 S. Ct. at 513 (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)). But he must, in some manner, alert the state courts to the federal underpinnings of his claim. Duncan v. Henry, supra, 513 U.S. at 365-66, 115 S. Ct. at 888. In deciding whether the state courts were so alerted, we look to a number of factors, including: “ ‘(1) whether the petitioner relied on federal cases that engage in constitutional analysis; (2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; (3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and (4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation.’ ” Sweeney, 361 F.3d at 332 (quoting Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001)). “ ‘[T]he presence of any one of these factors . . . does not automatically avoid a waiver; the court must consider the facts of each case.’ ” Momient-El v. DeTella, supra, 118 F.3d at 539 (quoting Verdin v. O’Leary, 972 F.2d 1467, 1474 (7th Cir. 1992)).
Brad Lieberman v. Thomas, 05-3922, 10/10/07 (state challenge that "(a)t its core" asserted that "state trial court failed to follow a state law procedure" didn't fairly present federal constitutional issue and thus procedurally defaulted latter; "single and undeveloped use of the term "constitutional" insufficient). But see Jackson v. Edwards, 2nd Cir No. 03-2805 (petitioner's reliance on state law to argue entitlement to rejected justification instruction "necessarily presented his due process claim, because the state law claim was not merely similar but was virtually identical to the federal claim).
Procedure -- Default -- Exhaustion Requirement -- "Meaningful Opportunity" for State Court Ruling
Linnell Harding v. Sternes, No. 03-2672, 8/23/04
Mr. Harding now asserts a violation of his Sixth and Fourteenth Amendment rights. In contrast to his briefs on direct appeal, Mr. Harding now relies upon federal cases discussing federal law. In his state court brief, he had included only an introductory sentence making a passing reference to his right to present evidence and his right to a “fair trial.” This reference was not sufficient “to give the state courts a meaningful opportunity to pass upon the substance of the claims later presented in federal court.” Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001) (citations omitted) (“A mere ‘passing reference’ to a constitutional issue certainly does not suffice.”). Nearly every portion of his state court argument pointed to a state evidentiary issue.
The lesson's pretty simple: the federal basis for the claim has to be identified in the state court litigation. Contrast, for example, Reutter v. Crandel, 109 F.3d 575, 577-78 (9th Cir. 1997) (asserted denial of "fair confrontation," bolstered by cites to U.S. Supreme Court Confrontation Clause cases exhausted confrontation claim) with Casey v. Moore, 9th Cir. No. 03-35294, 10/12/04 (mere reference to "fair trial" insufficient). Note, though, authority for the idea that where the claim is phrased in a particular enough way, it may well satisfy exhaustion requirement without reference to federal authority Verdin v. O'Leary, 972 F.2d 1467, 1479-80 (7th Cir. 1992) (claimed denial of "right to be present at all critical stages of trial" "particular enough to call to mind" and therefore to exhaust Sixth Amendment basis of claim). That said, Casey cautions that Verdin may no longer be viable in light of Duncan v. Henry, 513 U.S. 364 (1995) ("'essentialy the same' standard is no longer viable" to exhaust claim). Again, the lesson is simple: identify the federal nature of the claim in state court, and you won't have to fight an unnecessary exhaustion battle on federal habeas.

Also see Howell v. Cox, per curiam, USSCt No. 03-9560, 1/24/05 (federal nature of claim insufficiently raised in state court: "Petitioner's brief in the State Supreme Court did not properly present his claim as one arising under federal law. In the relevant argument, he did not cite the Constitution or even any cases directly construing it, much less any of this Court's cases.").

Procedure -- Default -- Exhaustion Requirement -- "Meaningful Opportunity" for State Court Ruling
Fairly W. Earls v. McCaughtry, 7th Cir. No. 03-2364, 8/16/04, granting habeas relief in unpublished decision of Wis. COA
We briefly address an issue of procedural default raised by the government regarding Earls’ counsel’s failure to redact the videotape. The government argues that Earls failed to raise his claim in his brief for the State appellate court and that omission “deprived the Wisconsin Court of Appeals the opportunity to address this claim separately.” Br. of Respondent-Appellee at 26; see also Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (stating a petitioner must fairly present a claim so that the state court has a “meaningful opportunity” to address it). This argument is baseless. Earls brief before that court explicitly states, in its argument labeled “Earls’ Counsel was Ineffective,” that: “Mr. Earls was denied the effective assistance of counsel at trial guaranteed by the Sixth Amendment to the United States Constitution . . . by his counsel’s failure to . . . redact the videotape to exclude Ghilardi’s comments about Earls.” Docket 10: Exhibit B at 28. The brief goes on to discuss and apply the Strickland test. Id. The Wisconsin Court of Appeals then addressed the claim in paragraphs 3- 7 of its resulting opinion. We find Earls’ claim was not procedurally defaulted.
Procedure -- Default -- Exhaustion Requirement -- "Meaningful Opportunity" for State Court Ruling
Charles E. Sweeney, Jr. v. Carter, 361 F.3d 327 (7th Cir 2004)
... We can reach the merits only by first satisfying ourselves that Sweeney gave the Indiana courts a “meaningful opportunity to pass upon the substance of the claims later presented in federal court.” Chambers v. McCaughtry, 264 F.3d 732, 737-38 (7th Cir. 2001); see also 28 U.S.C. § 2254(c); O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999)....

... Fair presentment requires a petitioner to put forward operative facts and controlling legal principles. Whether she has done so depends on several factors, including: “(1) whether the petitioner relied on federal cases that engage in constitutional analysis; (2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; (3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and (4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation.” ...

... On the one hand, we have found that the fact that two different claims arise from a common set of facts is not enough to avoid default.... On the other hand, “a mere variation in legal theory” does not automatically lead to a finding of failure to exhaust. ... Thus, a petitioner may reformulate her claims so long as the substance of the claim remains the same....

... Here, Sweeney’s underlying legal theory and the facts on which it is based have remained the same throughout his post-conviction odyssey. This fact serves to distinguish Sweeney’s situation from cases involving more dramatic shifts in the underlying legal theory....

The Indiana Supreme Court had squarely before it the question whether the Strickland rule relating to ineffective assistance of counsel should be extended to counsel’s role in Sweeney’s initial set of encounters with the police and prosecutors. This is enough to preclude a finding of procedural default. See Wilson, 243 F.3d at 327-28.

Procedure -- Default/Forfeiture -- Claims Involving Structural Error
Jerry Ward v. Hinsley, 7th Cir. No. 03-4342
We do not accept Ward’s suggestion that a federal habeas court may review a prisoner’s federal constitutional claims, notwithstanding the prisoner’s failure to raise the claims before the state court, so long as the claimed right rises to the magnitude of a structural error. Contrary to Ward’s assumption, the procedural default doctrine does not seek to distinguish claims of trial error from claims of structural error. Rather, the doctrine serves to distinguish claims that were raised before the state courts from claims that the state courts had no opportunity to consider....


Even if the cumulative effect of Ward’s claims arising from the ex parte conversations, the alleged perjury, and the alleged Brady violation rose to the level of a structural violation—an issue this Court need not reach—the structural nature of the claim would not excuse Ward’s failure to present the claims to the State courts. ... As Ward has not argued cause and prejudice or that a fundamental miscarriage of justice would occur if his claims were not addressed, the district court was correct to find the claims barred by the procedural default doctrine.

Procedure - Default/Forfeiture - Ineffective Assistance of Counsel Claim: Failure to Raise in No-Merit Report
Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003)
Issue/Holding: Litigant's failure to raise ineffective assistance of counsel argument, in response to no-merit report, did not amount to waiver of the claim:
The State takes the position, as did the Court of Appeals of Wisconsin, that Mr. Page’s failure to address the issue of ineffective assistance of trial counsel in his response to the Anders no-merit brief constitutes a waiver and ought not be excused. See Appellee’s Br. at 6-8. We cannot accept this argument. First, we do not believe that an even-handed application of Wisconsin law permits such a result. It is clear that Wisconsin law would not have permitted Mr. Page to make such an argument before the Court of Appeals of Wisconsin without its having been raised initially before the trial court.


There is an even more fundamental reason why a criminal defendant may not be said to have waived a claim in the manner suggested by the Court of Appeals of Wisconsin. It is well established that a criminal defendant possesses the right to effective assistance of counsel through his first appeal of right.... It would be incongruous to maintain that Mr. Page has a Sixth Amendment right to counsel on direct appeal, but then to accept the proposition that he can waive such right by simply failing to assert it in his pro se response challenging his counsel’s Anders motion.

(Note: The result is based on the idea that Wisconsin courts simply will not reach an IAC claim raised for the first time on appeal. That idea is true enough in the abstract (and no doubt true in Page's instance), but under the newer no-merit procedure, the Wisconsin court of appeals does have authority to process an IAC response. See §§ 809.32(1)(d)-(f). This newer authority potentially distinguishes newer cases from this one. On the other hand, the court stresses the incongruity of holding a no-merit respondent to a waiver bar of an IAC claim, something the court says is "an even more fundamental reason" not to find waiver. That incongruity exists quite apart from promulgation of the newer no-merit procedure, which means that the ratio decidendi of this case survives the new state procedure. And yet, there still may be a bit less here than meets the eye. Page, significantly, did attempt to raise his IAC claim, after the no-merit appeal, it's just that the state court declined to hear it on the spurious ground of waiver. The litigant can't force the state court to reach the merits of a claim, but the litigant is required under the exhaustion requirement to at least raise the claim in state court. In other words, it's highly unlikely that you can sit on your hands when a no-merit report is filed, and then waltz into federal court with an IAC claim. Page says the claim isn't waived by failure to respond to a no-merit report, but does not say that a post-NMR IAC state-court attack can be bypassed altogether.)
Procedure -- Default -- Sufficient Cause: Mental Retardation, Pro Se Litigant
Terry L. Harris v. McAdory, 334 F.3d 665 (7th Cir. 2003)
There is no dispute that Harris defaulted his claim of ineffective assistance of counsel. However, Harris contends, and the State denies, that sufficient cause exists to excuse the default. Specifically, Harris argues that his pro se status, his borderline mental retardation, and his organic brain dysfunction constitute cause. The district court determined that these factors did not overcome Harris' procedural default. We agree.


We find the reasoning in these cases persuasive. These cases highlight the emphasis placed on the "external" nature of the impediment. Something that comes from a source within the petitioner is unlikely to qualify as an external impediment. The examples given by the Court in Murray as to what constitutes an external impediment exemplify this point. Harris' low IQ and limited reading ability are not factors which are "external" to his defense. Finally, Harris' mental disability claim is belied by his gainful employment as a security guard at the time of the murder, his efforts to cover up the crime, and his ability to prepare a pro se 60-page state post-conviction petition.

Also see, Carlos K. Williams v. Buss, No. 07-1092, 8/14/08:
Williams also suggests that his mental incapacity provides cause, but once again the record does not support him. This court has held that “borderline mental retardation” diagnosed by a neuropsychologist does not constitute cause. Harris v. McAdory, 334 F.3d 665, 668-69 (7th Cir. 2003) (finding that such a condition was not sufficiently external to the petitioner to support cause for default); see also Murray v. Carrier, 477 U.S. 478, 488 (1986) (“[T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show . . . some objective factor external to the defense[.]”). In Williams’s case, the diagnosis came from the Social Security Administration rather than a neuropsychologist, which only weakens his argument for cause: the Harris court rejected the neuropsychologist’s opinion in part because it was conclusory. See Harris, 334 F.3d at 669. The same criticism applies to the form letter from the SSA.
Procedure -- Default -- Exhaustion: Failure to Include Issue in Petition for Review
Reynold C. Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)
For Moore: James Rebholz
Issue/Holding: To satisfy exhaustion requirement, habeas litigant must have presented claim to supreme court in petition for review. (O'Sullivan v. Boerckel, 526 U.S. 838 (1999), which overruled prior 7th Circuit precedent on this point applies retroactively and does not excuse failure to include issue in PFR.)
Followed: Robert Bintz v. Bertrand, No. 04-2682, 4/7/05.
Procedure -- Default -- Failure to Exhaust
Lavelle Chambers v. McCaughtry, 264 F.3d 732 (7th Cir. 2001)
For Chambers: John T. Wasielewski
Failure to exhaust available state remedies constitutes a procedural default... To avoid procedural default, a habeas petitioner must have presented fully and fairly his federal claims to the state courts before he may obtain federal review of those same claims.... The petitioner must have placed both the operative facts and the controlling legal principles before the state courts.
(Chambers' argument -- that a jury instruction retroactively interpreted his charged crime -- was not presented to the state court and thus was defaulted.)
Procedure -- Default/Waiver -- Reliance on, by State Court
Emmanuel Page v. Frank, 343 F.3d 901 (7th Cir. 2003)
Our case law firmly establishes that only a procedural default will bar federal habeas review. In Moore v. Bryant, 295 F.3d at 774, we concluded:
[I]f the decision of the last state court to which the petitioner presented his federal claims fairly appears to rest primarily on the resolution of those claims, or to be interwoven with those claims, and does not clearly and expressly rely on the procedural default, we may conclude that there is no independent and adequate state ground and proceed to hear the federal claims.
Id. (citing Harris v. Reed, 489 U.S. 255, 263-65 (1989)); see Farmer v. Litscher, 303 F.3d 840, 846 (7th Cir. 2002). Here, the Court of Appeals of Wisconsin based its disposition of the ineffective assistance of postconviction/appellate counsel claim on its conclusion that the merits of the claim had been resolved previously. Such a merit-based determination is not a bar to further consideration in a federal habeas action; “[f]ederal review is precluded only by procedural forfeitures, not by res judicata concerns.” Patrasso v. Nelson, 121 F.3d 297, 301 (7th Cir. 1997) (quotation marks and citations omitted); see also Moore, 295 F.3d at 776 n.1. Consequently, the district court erred in its determination that the issue of ineffective assistance of postconviction/ appellate counsel was barred by a procedural default. Accordingly, this issue must be remanded to the district court for further proceedings.
Federal review is precluded only by procedural default, not res judicata concerns; similarly, state court dismissal for failure to state claim is decision on merits and can't bar federal review, Cedell Davis v. Lambert, 7th Cir. Case No. 02-2838, 11/4/04.
Procedure -- Default/Waiver -- Reliance on, by State Court
Linnell Harding v. Sternes, No. 03-2672, 8/23/04
The procedural default doctrine stems from federalism principles, specifically the idea “that federal courts will not disturb state court judgments based on adequate and independent state law procedural grounds.” Dretke v. Haley, 124 S. Ct. 1847, 1852 (2004). A federal court may address a habeas petition when the last state court’s decision did not expressly rely on an independent and adequate state ground but instead depended on or involved the resolution of a federal claim. See Coleman v. Thompson, 501 U.S. 722, 735 (1991). “[I]f the state-court decision appears to rest primarily on a merits determination of the petitioner’s claims, or to be interwoven with those claims, and does not clearly and expressly rely on the procedural default, there is no independent and adequate state ground.” Farmer v. Litscher, 303 F.3d 840, 846 (7th Cir. 2002). Therefore, this court must determine if the state court based its decision on an adequate and independent state ground or on resolution of Mr. Harding’s federal claim.
(The state court discussed of the merits of the claim and "did not rest expressly on an independent state ground," therefore the federal court may consider the merits.)
Procedure -- Default/Waiver -- Reliance on, by State Court -- Escalona-Naranjo
Alonzo R. Perry v. McCaughtry, 308 F.3d 682 (7th Cir. 2002)
For Perry: David D. Cook
... (W)hile the Court of Appeals did not address Escalona-Naranjo’s impact with specific reference to Perry’s due process argument, it is still clear from its decision that the court considered the argument to have been procedurally defaulted. Therefore, while it is possible that the Wisconsin Court of Appeals could have been more precise, we find that its statements, when considered in context, are sufficiently plain to constitute reliance on the independent and adequate state law ground of procedural default.
Procedure -- Default/Waiver -- Reliance on, by State Court -- Untimely Petition for Review
Emmett White v. Kingston, 303 F.3d 840 (7th Cir. 2002)
For White: Howard B. Eisenberg
Issue/Holding: A state-court decision resting on a state procedural ground independent of the federal question bars federal review, but this bar is applied only if the state court actually relied on the procedural default. "Thus, if the state-court decision appears to rest primarily on a merits determination of the petitioner’s claims, or to be interwoven with those claims, and does not clearly and expressly rely on the procedural default, there is no independent and adequate state ground." Here, the state court's rejection of an untimely petition for review, on the ground that the petition would not have been granted anyway, rests on a merits determination and therefore doesn't bar federal review of the claim contained in the petition for review.
Procedure -- Waiver -- Failure to Argue Issue Declared in Certificate of Appealability
Terry V. Anderson v. Litscher, 281 F.3d 672 (7th Cir. 2002)
For Anderson: Ralph A. Kalal
Issue/Holding: Failure to argue issues set forth in Certificate of Appealability results in waiver of those issues.
Procedure -- Forfeiture -- Failure to Develop Collateral-Attack Record
John Szabo v. Walls, 313 F.3d 392 (7th Cir. 2002)
Failure to develop the record with essential evidence invariably means forfeiture... and it is settled as a matter of federal law that poor post-conviction lawyering does not relieve a prisoner of what is otherwise a forfeiture under state law. See, e.g., Coleman v. Thompson, 501 U.S. 722, 752-57 (1991); Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). See also 28 U.S.C. § 2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). That is to say, ineffective assistance of post-conviction counsel does not supply "cause" for the cause-and-prejudice formula under which federal courts sometimes entertain claims that were not properly presented to the state courts. Szabo therefore cannot show a sufficient "cause" for any forfeiture. Because the last state court to consider the issue unambiguously invoked a forfeiture doctrine, the lack of evidence at the trial level in Szabo III supplies an independent and adequate state ground of decision. Szabo's ineffective-assistance claim was not preserved in state court and cannot furnish the basis for a writ of habeas corpus.
Procedure -- Forfeiture -- Unforeseeable Bar
Ivory Smith v. Winters, 337 F.3d 935 (7th Cir. 2003)
Now it is true that the application, however unreasonable it may seem, of a state-law doctrine, here that of forfeiture, is an error merely of state law, and a federal judge in a habeas corpus proceeding has no authority to correct such errors. ... But when the application is so surprising, unanticipated, unprecedented, unforeseeable, and indeed freakish as not to be foreseeable by the petitioner, its existence will not block him from pressing his federal claims in his federal habeas corpus proceeding. ... It will not, in the accepted formula, be deemed an adequate state ground upon which to uphold the state court’s judgment. It is unreasonable to hold that as a precondition to being able to litigate constitutional claims a prisoner must comply with a state procedural requirement of which he lacks, and could not by the exercise of reasonable diligence have acquired, knowledge. Anyone in Smith’s position would have assumed that a narrative of prosecutorial misconduct that included the bizarre detail of a prosecutor drawing swastikas in full view of the jury during voir dire was a complaint about that conduct and not just about the prosecutor’s subsequent flippant remark.
It should not be overlooked that, to be enforceable on federal habeas, a state procedural-forfeiture rule must be "firmly established and regularly followed." Ford v. Georgia, 411 U.S. 498 (1991). For a more detailed discussion, see Dietz v. Money, 6th Cir No. 03-3431, 12/13/04 (state court rule based "solely" on exercise of [appellate] judicial discretion, cannot be firmly established and regularly followed so as to be adequate and independent ground for barring federal review). On a different point, the 9th Circuit case has held that the test for whether a state procedural rule is "clear, consistently applied, and well-established" requires looking "to the state court's actual practice, not merely to the practice in their published opinions"; therefore, the habeas court must examine unpublished opinions. Powell v. Lambert, 9th Cir No 01-35809, 2/10/04. See also Page v. Frank, 343 F.3d 901 (7th Cir. 2003) (procedural rule must be applied in consistent, principled way to be enforceable; may be deemed inadequate to support judgment if applied infrequently or freakishly), cited with approval in Richey v. Mitchell, 6th Cir No. 01-3477, 1/25/05.

But compare, Brian Miranda v. Leitch, No. 02-3452, 1/20/05 ("what dooms Miranda’s argument vis-à-vis the adequacy of the waiver rule is his own concession before the Illinois Appellate Court that he had waived the Fourth Amendment claim").

Procedure -- Default -- "Cause and Prejudice" for Overcoming
Tyler v. McCaughtry, 293 F. Supp. 2d 920 (E.D. Wis. 2003), on habeas review of, State ex rel. Matthew Tyler v. Bett, 2002 WI App 234
Issue/Holding1: Sworn allegation that prison failed to provide current edition of statutes or information related to requirements that led to default in state court sufficient to satisfy cause requirement for excusing procedural default, so as to proceed to inquiry on prejudice. (Court of appeals' holding on this point implicitly rejected.)
Issue/Holding2: (Following lengthy discussion:) Exact showing necessary to establish "prejudice" on cause-and-prejudice inquiry into procedural default isn't clear. Court will "define prejudice synonymously with" standard of harmless error articulated in Brecht v. Abrahamson, 507 U.S. 619 (1993); parties ordered to brief issue of whether Tyler was prejudiced under this standard.

Procedure -- Discovery

Procedure -- Discovery -- Required Showing
Alphonso Hubanks v. Frank, 04-1043, 12/22/04
For Hubanks: Robert J. Dvorak
... Hubanks requests leave to conduct discovery pursuant to his claim that the police destroyed the trial exhibits in bad faith. Rule 6(a) of the Rules Governing § 2254 Cases provides that a petitioner can invoke discovery, but only “if and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.” See Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). In order to satisfy the two requirements of the Rule 6(a) test, Hubanks must: (1) make a colorable claim showing that the underlying facts, if proven, constitute a constitutional violation; and (2) show “good cause” for the discovery. Henderson v. Walls, 296 F.3d 541, 553 (7th Cir. 2002), vacated on other grounds, 537 U.S. 1230, 123 S.Ct. 1354, 155 L.Ed.2d 194 (2003); see also Harris v. Nelson, 394 U.S. 286, 298-300, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969). Good cause, however, cannot exist where the facts alleged do not provide a basis for relief. Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir. 1990).
Review of denial of Rule 6 discovery is for abuse of discretion, Teti v. Bender, 1st Cir No. 06-2371, 11/8/07.

Procedure -- Evidentiary Hearing

Procedure - Evidentiary Hearing - Generally
Albert J. Price v. Thurmer, 514 F.3d 729 (2/1/08)
Issue/Holding: "When the merits of a petition for habeas corpus cannot be determined from the record compiled in the state court, through no fault of the petitioner (compare 28 U.S.C. § 2254(e)(2)), the district court is authorized, and may be directed by the court of appeals, to conduct its own hearing and make appropriate findings ...."
Procedure -- Evidentiary Hearing -- Required Showing -- Prosecutorial Misconduct
Floyd Richardson v. Briley, 7th Cir. Case No. 04-1513, 3/18/05
We have stated that a petitioner should not be penalized “for presenting an issue to us that he was unable to present to the state courts because of the state’s misconduct.” .... If the failure to develop the factual basis of the prosecutorial misconduct claim should not be attributed to Richardson, he does not have to meet the strict standards for the granting of an evidentiary hearing found in § 2254(e)(2)(A) and (B). .... However, if that section does not apply, “it is then necessary to evaluate the request for an evidentiary hearing under pre- AEDPA standards.” .... “Under pre- AEDPA standards, a federal evidentiary hearing is required if (1) a habeas petitioner alleges facts which, if proved, would entitle him to relief and (2) the state courts—for reasons beyond the control of the petitioner—never considered the claim in a full and fair hearing.” ...
Because information essential to Richardson's claim was assertedly based on prosecutorial misconduct, "the record needed to be expanded," and the district court thus properly conducted an evidentiary hearing. See also discussion in Teti v. Bender, 1st Cir No. 06-2371, 11/8/07.
Procedure -- Evidentiary Hearing -- Destroyed State Court Record
Lawrence Dalton v. Battaglia, No. 03-3982, 3/23/05
Issue/Holding: Where, through neither fault nor dilatoriness of petitioner, the state court record of his guilty plea was destroyed, the court declines to assign a presumption of regularity to his guilty plea, and remands for evidentiary hearing on his claim that the plea was involuntary because he was misinformed as to the potential maximum penalty.
Procedure -- Evidentiary Hearing -- Required Showing
George Owens v. Frank, 7th Cir. Case No. 03-2809, 1/6/05, affirming unpublished opinion
Issue/Holding: New information petitioner sought to introduce into record by affidavit was testimonial in nature, and would require credibility determinations, therefore the requirements of 28 USC § 2254(e)(2) must be satisfied. This in turn means that the petitioner must show "diligent" efforts to create the appropriate factual record in state court, else the petitioner must also satisfy subs. (e)(2)(B) (absent the error no reasonable factfinder would have found petitioner guilty). (Owens is unable to make this showing, because the record indicates that he was in possession of sufficient information that he could have pursued the necessary leads.)
Like effect: Cooper-Smith v. Palmateer, 9th Cir No 03-35794, 2/16/05 ("The failure to investigate or develop a claim given knowledge of the information upon which the claim is based, is not the exercise of diligence. Consequently, the constraints of § 2254(e)(2) apply to Petitioner’s attempt to introduce the evidence in the district court.").

But, as one case importantly points out:

Pursuant to its plain language, subpart (e)(2)’s hearing-bar applies, however, only if a habeas petitioner failed in state court “to develop the factual basis” for his claim. Moreover, “[u]nder the opening clause of [subpart](e)(2), a failure to develop the factual basis of a claim is not established unless there is a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel”. Michael Williams, 529 U.S. at 432; see also Dowthitt v. Johnson, 230 F.3d 733, 758 (5th Cir. 2000). Restated, if a petitioner develops a factual basis for a claim in state court (or sufficiently attempts to do so), subpart (e)(2) does not bar an evidentiary hearing in district court.
Guidry v. Dretke, 5th Cir No 03-20991, 1/14/05 (going on to rule that district court properly held evidentiary hearing involving same witnesses who testified at state court hearing, where petitioner's witnesses had offered convincing support for his claim and the state court hadn't adequately resolved credibility disputes).

Procedure -- Evidentiary Hearing -- Ineffective Assistance Claim
Cedell Davis v. Lambert, 7th Cir. Case No. 02-2838, 11/4/04
In Davis’s case, we face a preliminary question. The record as it now stands is devoid of the kind of information about the potential testimony of the defense witnesses that he has identified that we would need in order properly to assess the conclusions of the Illinois courts under the Strickland standards. See Matheney v. Anderson, 253 F.3d 1025, 1040 (7th Cir. 2001) (“An adequate record is imperative to properly evaluate ineffective assistance claims.”); see also United States ex rel. Hampton v. Leibach, 347 F.3d 219, 245 (7th Cir. 2003) (“[T]he district court could not assess what impact the exculpatory eyewitnesses likely would have had upon [the petitioner’s] trial without hearing their testimony.”); United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987) (“When the allegation of the ineffectiveness of counsel centers on a supposed failure to investigate, we cannot see how, especially in the context of a habeas proceeding that collaterally attacks the state court conviction, the petitioner’s obligation can be met without a comprehensive showing as to what the investigation would have produced.”). In particular, we cannot properly review the Illinois courts’ determination that Davis did not suffer prejudice due to his counsel’s failure to investigate these potential witnesses without knowing the content of their testimony. We must decide, therefore, whether Davis showed enough to require an evidentiary hearing to flesh out the record, or if the district court was within its discretion to decide the case based solely on what was before it.
The court goes on, after lengthy discussion, to find that a hearing is required. Some of the main points:
  • Availability of an evidentiary hearing is regulated by 28 U.S.C. § 2254(e)(2), which inturn means assessing whether the absence of an adequate pre-federal record is attributable to the petitioner.
  • Once that hurdle is passed, then the request for a hearing is evaluated under pre-AEDPA standards, which means:
    • the petitioner must allege facts which if proved would entitle him to relief and
    • the state court must have never held a full and fair hearing on the claim, "for reason beyond the control of the petitioner."
These are not easy burdens to meet. For example, the petitioner must, in order to obtain the hearing, overcome the presumption that counsel's challenged efforts (in this instance, investigatory) were based on sound strategy. But, interestingly, the court reaffirms this occasionally-ignored principle:
“Just as a reviewing court should not second guess the strategic decisions of counsel with the benefit of hindsight, it should also not construct strategic defenses which counsel does not offer.” Harris, 894 F.2d at 878; see also Crisp v. Duckworth, 743 F.2d 580, 584 (1984) (counsel should not be allowed to shield his failure to investigate simply by raising claim of “trial strategy and tactics”). Here, neither Davis’s counsel nor the State has presented anything worthy of being called a strategic defense. In Hall, we explained that an attorney’s decision not to present particular witnesses “can be strategically sound if it is based on the attorney’s determination that the testimony the witnesses would give might on balance harm rather than help the defendant. Such a determination can rationally be made, however, only after some inquiry or investigation by defense counsel.” 106 F.3d at 749 (internal citation omitted). While “[t]his does not mean that only a scorch-the-earth strategy will suffice, . . . it does mean that the attorney must look into readily available sources of evidence.” Id. (internal citation omitted). Yet Davis’s attorneys never contacted or interviewed Perry, Williams, or Bradley, although Davis had named them as defense witnesses and described their potential testimony.
On another point not raised by this case, but related nonetheless, there is authority for the idea that "a district court facing the question of constitutional ineffectiveness of counsel should, except in highly unusual circumstances, offer the assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of live testimony, affidavits, or briefs," Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998), cited in Cox v. Donnelly, 387 F.3d 193 (2nd Cir. 2004) as something 2nd Circuit caselaw "require(s)" (even where, as in that instance, "it is unlikely that counsel will be able to offer an explanation to defeat the conclusion that his performance was a result of ignorance, inattention or ineptitude"). This requirement is linked to the equirement that counsel is presumed to have performed adequately and that the petitioner bears the burden of showing deficient performance; but the flip side is "that if we discover, for instance, that counsel’s decisions resulted from incompetence, negligence, or pure serendipity, we might reconsider any assumption that a “choice” made by counsel was strategic," Greiner v. Wells, 2nd Cir No. 04-2809-pr, 8/8/05.

Also: Stephen Toliver v. McCaughtry, 7th Cir No. 06-3316, 8/27/08 ("Even more fundamentally, counsel could not have made a reasonable strategic decision not to call Harvey without interviewing him in order to evaluate his proposed testimony, his credibility or his demeanor.").

Procedure -- General

Procedure -- General -- "Conversion" of Pro Se Petition
Jenkie H. Bunn v. Conley, 309 F.3d 1002 (7th Cir. 2002)
Issue/Holding: Because "there are pitfalls of different kinds for prisoners using the wrong vehicle," district courts should evaluate the case as the litigant brings it, and not convert it into the presumed proper vehicle.
See also Castro v. U.S, 124 S. Ct. 786 (2003) (court cannot recharacterize pro se litigant’s motion as first §2255 motion unless it first informs the litigant of its intent to recharacterize, warns the litigant that this recharacterization means that any subsequent §2255 motion will be subject to the restrictions on “second or successive” motions, and provides the litigant opportunity to withdraw the motion or to amend it so that it contains all the §2255 claims he believes he has); and Melton v. U.S, 7th Cir No. 03-3903, 2/13/04 (these restrictions don't apply where litigant has previously filed collateral attack).
The foregoing cases deal with federal prisoners, but, based on the idea that AEDPA restrictions don't meaningfully distinguish 2254 and 2255 petitions, there is authority that the Castro rule applies equally to state-prisoner petitions: Martin v. Overton, 6th Cir No. 03-1510, 12/1/04.
Procedure -- General -- Declaratory Relief, Compared
Jenkie H. Bunn v. Conley, 309 F.3d 1002 (7th Cir. 2002)
For present purposes, the answer to the declaratory relief versus habeas riddle is suggested by Graham v. Broglin, 922 F.2d 379, 381 (7th Cir. 1991), where we held that '[i]f the prisoner is seeking what can fairly be described as a quantum change in the level of custody -- whether outright freedom, or freedom subject to the limited reporting and financial constraints of bond or parole or probation . . . then habeas corpus is his remedy. But if he is seeking a different program or location or environment, then he is challenging the conditions rather than the fact of his confinement and his remedy is under civil rights law.' Id. See also Pischke v. Litscher, 178 F.3d 497, 500 (7th Cir. 1999), cert. denied, 528 U.S. 954 (holding that habeas is the proper vehicle for presenting a claim "if but only if the prisoner is seeking to 'get out' of custody in a meaningful sense").
(Challenge to a reporting requirement, taking effect upon release from federal prison, "is not something that concerns his confinement," and therefore doesn't support habeas.)
Procedure -- General -- Magistrate Judge Authority, 28 U.S.C. § 636(c)
James A. Farmer v. Litscher, 303 F.3d 840 (7th Cir. 2002)
For Farmer: Howard B. Eisenberg
Issue/Holding: "(H)abeas corpus cases are commonly understood to be civil actions"; therefore, "based on the parties' consent, § 636(c) confers on magistrate judges the authority to enter final judgments in § 2254 proceedings."
Procedure -- General -- Pleading Cognizable Issue -- Condition of Confinement, not Supported by Habeas
Steven A. Glaus, No. 03-1226, 5/17/05
If a prisoner is not challenging the fact of his confinement, but instead the conditions under which he is being held, we have held that she must use a § 1983 or Bivens theory ...

As release is not available under Bivens, Glaus’s habeas corpus petition would be proper if release were among the possible remedies for an Eighth Amendment deliberate indifference claim. Unfortunately for Glaus, it is not. ...

Glaus responds to this conclusion by arguing that while there may be no room within civil rights law for the remedy of release, there is room within the writ of habeas corpus to challenge unconstitutional prison conditions. ...

While the Supreme Court has left the door open a crack for habeas corpus claims challenging prison conditions, it has never found anything that qualified. Without further guidance from the Court, it is premature to question Graham. Graham outlines a clear distinction: a petitioner requests either a “quantum change in the level of custody,” which must be addressed by habeas corpus, or “a different program or location or environment,” which raises a civil rights claim. 922 F.2d at 381. Since release is unavailable to Glaus, his challenge can only concern the conditions of his confinement ....

Procedure -- General -- Pleading Cognizable Issue
Perruquet v. Briley, 7th Cir. No. 02-2981, 11/17/04
Issue/Holding: Although mere evidentiary and/or instructional error is not enough to establish consitutional error,
Perruquet’s petition draws enough of a connection between his right to due process and the trial court’s (alleged) evidentiary and instructional errors to render his claim cognizable on habeas review. The petition, along with the supporting memorandum that Perruquet filed, does more than merely cite his constitutional right to a fair trial. Perruquet has articulated the theory of self-defense that he wished to pursue; he has described the evidence (both excluded and admitted) that supported that theory; and he has argued that preventing him from pursuing the theory of self-defense likely resulted in the conviction of an innocent person. R. 6a-6d; R. 15 at 8-9. Whatever gaps there may be in his petition and supporting memorandum, the basic rationale of Perruquet’s due process argument is readily discernible. As Perruquet was without counsel in the district court, his habeas petition is entitled to a liberal construction, e.g., Jackson v. Duckworth, 112 F.3d 878, 881 (7th Cir. 1997) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 595-96 (1972)), and given such a construction, his petition contains enough detail to describe a claim that is within the power of a federal court to address.

Procedure -- Mandate

Procedure -- Mandate -- Conditional Writ
Gregory Madej, 7th Cir. No. 04-1760, 4/21/04 amended 5/28/04, rehearing denied 5/28/04
The order is indeed mistaken in one respect. A writ of habeas corpus directs the petitioner’s release from unconstitutional custody. When the constitutional error is curable, the court often issues a conditional writ, of the form: “Release the petitioner unless you do X within Y days.” The district judge may have meant to issue such a writ, but the actual language reads:
[The court] orders that the state resentence [Madej] in a manner that comports with the individualized sentencing requirements of the Eighth Amendment within sixty (60) days of the date of this order.
This language does not leave the state the option of releasing Madej or reducing his sentence to life imprisonment; instead it directs the state to hold a new hearing whether it wants to or not. Yet the writ of habeas corpus is designed to free persons wrongly held, not to ensure that criminal prosecutions continue in full vigor. A proper conditional writ would have provided something along the lines of:
Within 60 days, the state must either reduce Madej’s sentence to life imprisonment (with eligibility for parole) or hold a new sentencing hearing.
That language would have made it pellucid that the commutation does not avert the need for resentencing.

When it dismissed its appeal with prejudice, the state surrendered any opportunity to have the order’s language converted to a standard conditional writ. Illinois must comply with the unconditional order the district court has entered. The order denying the state’s request for relief under Rule 60(b) is affirmed, without prejudice to Madej’s opportunity to ask the district judge for supplemental relief (through the contempt process, a conditional writ of the kind mentioned above, or both) if the state’s obduracy continues.

If the state fails to fulfill the necessary condition, the district court has authority to enforce its grant of relief by making the writ unconditional, Eddleman v. McKee, E.D. Mich., S.D. No. 04-70830, 1/22/08 (state's failure to re-try petitioner within terms of conditional writ means "the conditional writ has become absolute and Petitioner’s conviction are (sic) nullified"); Gentry v. Deuth, 6th Cir No. 05-6273, 7/31/06 (grant of relief conditioned on retrial within 90 days changed to unconditional grant, including "nullifying" the conviction; Gentry had been released from custody, but collateral consequences flowing from a conviction justified this relief); Satterlee v. Wolfenbarger, 6th Cir No. 05-2013, 6/30/06 (like effect: state's failure to perform condition within allotted time authorized district court to make writ unconditional; further, court had authority to order expungement of record of conviction). Discussion, Scott v. Bock, E.D. Mich, S.D. No. 99-10274, 9/12/08 (stressing, among other things: release not always and necessarily required for lack of compliance with conditional writ; and, state may be abrred from reprosecution for such non-compliance, but only where "extraordinary circumstances" exist), upholding denial of relief in, State v. Scott, MI App No. 266280, 5/15/07 (violation of time limit in conditional writ doesn't amount to plain error or loss of jurisdiction so as to prevent retrial by state court). The larger point, perhaps, is "that district courts generally 'retain jurisdiction to execute a lawful judgment when it becomes necessary,'" Patterson v. Haskins, 6th Cir No. 04-3280, 10/31/06, quoting Gentry, and also citing William Phifer v. Warden, 53 F.3d 859, 862 (7th Cir. 1995) (though denying relief on merits, district court properly reviewed subsequent state court proceedings resulting in re-conviction to determine if mandate complied with).

On a different but related point: state court as bound by conditional grant of writ by federal habeas court, discussed in People v. Frazier, MI SCt No. 131041, 6/6/7 (habeas decision has res judicata effect -- but, even though the state court then abides by the federal court's order of suppression, it proceeds nonetheless to reject the very reasoning in support of suppression).

Of course, there will be discrete instances (typically isufficient evidence or double jeopardy) which support unconditional relief, i.e., an absolute bar on reprosecution -- see discussion in Foxworth v. Maloney, 1st Cir No. 06-2379, 1/24/08.

Procedure -- Mootness

Procedure -- Mootness -- Expired Sentence on Conviction Used to Enhance Current Sentence
Anthony Grigsby v. Cotton, No. 04-3356, 8/1/06
... In Lackawanna and Daniels v. United States, 532 U.S. 374 (2001), the Supreme Court established the principle that “once a state conviction is no longer open to direct or collateral attack in its own right . . . ,” a habeas petitioner “generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.” Lackawanna, 532 U.S. at 404. But, the Court recognized a single exception: a petitioner may challenge an enhanced sentence when it is based on a previous conviction that was obtained in violation of Gideon v. Wainwright, 372 U.S. 335 (1963), which announced the Sixth Amendment right to counsel. Lackawanna, 532 U.S. at 404-05.

Grigsby’s petition is facially consistent with the exception described in Lackawanna. Martin, in which the petitioner failed to assert the Lackawanna exception, 298 F.3d at 672, does not bar Grigsby’s petition. Thus the question for us is whether his 1978 conviction was obtained in violation of his Sixth Amendment right to counsel. ...

Procedure -- Mootness -- Expired Prison Disciplinary Sanction
Larry Cochran v. Buss, 7th Cir. No. 03-3402, 8/24/04
... The Supreme Court has established a presumption of collateral consequences from a wrongful criminal conviction, but the Court has not extended this presumption to prison disciplinary sanctions. See Diaz v. Duckworth, 143 F.3d 345, 346 (7th Cir. 1998) (citing Spencer v. Kemna, 523 U.S. 1 (1998)).

Whether it is possible for a prisoner to allege sufficient consequences from a disciplinary action to maintain an Article III case or controversy after custody has ended remains an open question. See Diaz, 143 F.3d at 346-47. This case does not require that we decide that question. Mr. Cochran alleges in general terms only that he lost his preferred prison living arrangement, his prison job and his eligibility for rehabilitative programs and that the disciplinary report has damaged his prison record. These alleged deprivations, however, are not sufficient collateral consequences. ...

Procedure -- Mootness -- Expired Juvenile Adjudication
A.M. v. Butler, 7th Cir. No. 02-2882, 3/2/04
Issue: Whether a 28 U.S.C. § 2254 petition challenging a state juvenile adjudication becomes moot when, during pendency of the petition, the juvenile is discharged from probation and is therefore no longer in custody.
Here, Morgan was still on probation when he filed his habeas petition in 1998. He completed his probation term while his petition was pending in the district court. Although no longer in custody, however, a challenge to a criminal conviction (or, in this case, a declaration of juvenile delinquency, which is its equivalent for a child) is not moot when the defendant continues to face adverse consequences stemming from its adjudication. Thus, in determining if Morgan’s petition is moot, we must examine “whether sufficient collateral consequences of the conviction persist to give the petitioner ‘a substantial stake in the judgment of conviction which survives the satisfaction of the sentences imposed on him.’ ” Puchner v. Kruziki, 111 F.3d 541, 543 (7th Cir. 1997) (quoting Carafas v. La Vallee, 391 U.S. 234, 237 (1968)). This standard applies equally to juvenile adjudications. D.S.A., 942 F.2d at 1145-50.

Applying these principles, we think Morgan’s petition is not moot. Examining Illinois law, Morgan has a stake in the outcome of this litigation. For example, one aggravating factor under Illinois’ Aggravated Unlawful Use of a Weapon statute is whether a defendant has previously been adjudicated a delinquent for an act that if committed by an adult would be a felony. … Because Morgan’s delinquency adjudication will, like an adult criminal conviction, increase his potential punishment in the future, we agree with the parties that his petition is not moot.

Spencer v. Kemna, 523 U.S. 1 (1998) (collateral consequences presumed to follow criminal convictions but not parole revocations) distinguished, f.n. 4: consequences flowing from revocation are nonstatutory, i.e., dependent on discretionary choices of employer or sentencing judge; but in this instance “Morgan faces a statutory consequence” -- such as potential future use of the adjudication as an aggravating factor, akin to an adult conviction -- and therefore "Spencer is not a good fit." Note a potential exception to the Spencer mootness rule for expired revocations where the inmate remains in custody on another sentence, whose release date might be impacted by grant of relief against the challenged revocation, Defoy v. McCullogh, 3rd Cir No. 03-3474, 1/5/05. Note also that an expired sentence isn't moot if the petitioner is under custody of another sentence running consecutive to the expired sentence. Garlotte v. Fordice, 515 U.S. 39, 41 (1995).

And: A Wisconsin state appeal of an expired delinquency adjudication is not considered moot (at least with regard to sex offense), State v. Stephen T., 2002 WI App 2, because of deleterious Wisconsin consequences such as DNA sampling and sex offender registration.

Procedure -- Record Expansion

Procedure -- Expansion of Record
Joseph Eckstein v. Kingston, 7th Cir. No. 05-2929, 8/16/06, denying relief on review of unpublished opinion
For Eckstein: Robert R. Henak
The final point Eckstein raises is a procedural one about the district court’s handling of his request to expand the record to include the two tapes ...

... Rule 7(a) of the Rules Governing Section 2254 Cases provides that “the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition.” We review the decision not to expand the record for an abuse of discretion. See Anderson v. Attorney General of Kansas, 425 F.3d 853, 858 (10th Cir. 2005)....

Although it might have been prudent to accept the tapes, we conclude nevertheless that the district court did not abuse its discretion. Even if we assume that Eckstein is correct that he never utters the word “murder” on the tape, there are so many other references to the planned killing of Annamaria that this alleged inaccuracy is irrelevant. ...

See Garner v. Mitchell, 6th Cir No. 02-3552, 9/11/07, to effect that in order to expand record petitioner must not have been at fault in failing to develop record in state court, or if conditins prescribed in § 2254(e)(2) were met. (Garner panel opinion overruled on other grounds, en banc, 3/3/09.)

Procedure -- Recusal

Procedure -- Recusal
Clemmons v. Wolfe, 3rd Cir. No. 02-4457, 7/29/04
Although this court has not confronted the precise issue at bar, at least two3 other circuits have addressed this issue and stated that a federal judge should recuse himself or herself from hearing habeas petitions if s/he participated in the petitioner’s state court proceedings. An almost identical issue was considered by the Seventh Circuit in Russell v. Lane, 890 F.2d 947 (7th Cir. 1989). In that case, the district court judge considered a habeas petition even though that judge had previously been a member of the panel of the state appellate court that affirmed the conviction. On appeal, the Court of Appeals for the Seventh Circuit stated that the judge in question:
was being asked to find that he had affirmed an unconstitutional conviction, and, implicitly, that by doing so he had become complicit in sending [petitioner] to prison in violation of [petitioner’s] constitutional rights . . . . A federal habeas corpus proceeding brought by a state prisoner is not a request to a state judge to reconsider his ruling. It follows the exhaustion of the petitioner’s state remedies and is addressed to a judge who was not a member of the state-court panel that affirmed the petitioner’s conviction and who had no emotional com mitm e n t to vindicating state justice as administered in the petitioner’s case.
Id. at 948. The court concluded that the petitioner “was entitled to have his habeas corpus petition heard by a judge who had not participated in his conviction” and thus it remanded the matter to permit the petitioner the opportunity to file a motion to vacate the order of the district judge that dismissed several of petitioner’s claims. Id.

Procedure -- Retroactivity

When the Supreme Court announces a “new” rule (for example, Crawford v. Washington), federal courts apply it prospectively, but states remain free to apply the new rule retroactively: Danforth v. Minnesota, USSC No. 06-8273, 2/20/08.
Procedure -- Retroactivity
Michael Allen Lambert v. McBride, 365 F.3d 557 (7th Cir. 2004)
... Teague v. Lane, 489 U.S. 288 (1989), holds that new constitutional rules of criminal procedure do not apply to cases that are final before the new rules are announced. Teague does provide two exceptions to this general rule. First, a new rule applies retroactively if it places a class of private conduct beyond the power of the criminal lawmaking authority to proscribe or punish. Second, a new rule applies retroactively if (1) it is a watershed rule that “alters our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction,” id. at 311, and (2) under the new rule “the likelihood of an accurate conviction is seriously diminished,” id. at 313....

Procedure -- Successive applications

Successive Application -- Attack on Same Judgement with Same Argument
Michael Allen Lambert v. Davis, 05-2610, 6/1/06, prior appeal: Michael Allen Lambert v. McBride, 365 F.3d 557 (7th Cir. 2004).
Issue/Holding: Petition deemd successive where raising attack on same judgment based on same argument, court rejecting claim that this was "new" argument that wasn't ripe until a recent state supreme court decision. (But see dissent for idea that Slack v. McDaniel, 529 U.S. 473 (2000) calls into question 7th Circuit case law to effect that pre-ADEPA notions of "second or successive" don't inform AEDPA's use of that terminology.)
Successive Application -- Prior Untimely Petition
Gilbert W. Pavlovsky, Jr. v. VanNatta, 05-1911, 12/16/05
Issue/Holding: If the 1st petition is dismissed because of a curable techincal deficiency, dismissal is not final and therefore is without prejudice so that the 2nd petition becomes the 1st; but dismissal on ground of timeliness is on the merits and should be made with prejudice.
Successive Application, 28 U.S.C. § 2244(b) -- Prior Untimely Petition
Lewis Altman, Jr., v. Benik, 337 F.3d 764 (7th Cir. 2003)
Section 2244(b) requires petitioners to get permission from the courts of appeals before filing second or successive petitions in the district courts. Not every petition counts for purposes of § 2244(b), so in some cases later petitions are not considered second or successive under § 2244(b) and can be filed without permission from the courts of appeals. We have previously identified several cases in which prior petitions do not count because they suffer from technical or procedural deficiencies that the petitioners can rectify before refiling their petitions, but we have never decided whether a petition dismissed as untimely counts for purposes of § 2244(b). We hold today that a prior untimely petition does count because a statute of limitations bar is not a curable technical or procedural deficiency but rather operates as an irremediable defect barring consideration of the petitioner's substantive claims.


In this case, Mr. Altman filed his prior petition after the one-year statute of limitations expired, so the district court dismissed it as untimely. Mr. Altman can do nothing to correct his late filing, and if he refiled his petition the district court would again deny it as untimely. He received his one opportunity to litigate a federal collateral attack, but he failed to do it in a timely manner. His prior petition therefore counts and he needs this court's permission to file another petition.

For purposes of § 2244(b), we do not count previous petitions that were dismissed for technical or procedural deficiencies that the petitioner can cure before refiling. For example, we do not count petitions dismissed because the petitioner filed in the wrong district, Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999), or failed to pay the filing fee, Benton v. Washington, 106 F.3d 162, 165 (7th Cir. 1996). Likewise, we do not count petitions dismissed as premature, Slack v. McDaniel, 529 U.S. 473, 485-86 (2000) (petitions filed before exhaustion of state remedies not counted); Stewart v. Martinez-Villareal, 523 U.S. 637, 645 (1998) (claim earlier dismissed as premature could be litigated in a later petition); see O’Connor v. United States, 133 F.3d 548, 550-51 (7th Cir. 1998) (petition dismissed because post-trial motion was still pending not counted). In these cases the petitioners are able to rectify the problems and then refile their petitions for a merits determination of the substantive claims.

Keep in mind, too, the principle that where the court wants to recharacterize a petitioner's pleading as a habeas, it must first notify the petitioner of that intent, warn of the potential serial litigation bar on future such petitions, and permit the litigant the opportunity to withdraw or amend the pleading. Castro v. U.S., USSC No. 02-6683, 12/15/03 (though Castro is a 2255 case, the "rationale in Castro applies with equal force to § 2254 petitions," Ward v. Wolfenbarger, USDC, E.D. MI, S.D., No 03-CV-72701, 6/30/04). Like effect: Martin v. Overton, 6th Cir No. 03-1510, 12/1/04 (notice and opportunity to withdraw petition required before it is recharacterized as §. 2254 petition).
Successive Application, 28 U.S.C. § 2244(b) -- Measured by Judgment
Bernard L. Beyer v. Litscher, 306 F. 3d 504 (7th Cir. 2002)
Issue/Holding: "(A) prisoner is entitled to one free-standing collateral attack per judgment, rather than one attack per stretch of imprisonment (as the district court held)." That is, where the petitioner is serving time on unrelated convictions (except that their sentences run consecutively), s/he is not required to challenge them all in a single federal habeas.
Superficially different issue, but resolution consistent with sense of "attack per judgment" rule: In Re Cabey, 4th Cir No. 04-277, 11/15/05 (challenge to applicatio of parole statutes, raising issue that didn't exist and therefore couldn't have been raised at time of initial petition, held not to be successive peition under 2244(b)).
Successive Application, 28 U.S.C. § 2244(b) -- Prior Pretrial Habeas Petition
Chris Jacobs v. McCaughtry, 251 F.3d 596 (7th Cir. 2001)
Jacobs now argues that the petition he wishes to file is not a second or successive collateral attack within the meaning of sec. 2244. We agree. Jacobs's first petition is properly classified as a sec. 2241 petition because it was filed pretrial and not while he was "in custody pursuant to judgment of a state court." See Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000) (sec. 2254 is the vehicle for prisoners in custody pursuant to the judgment of a state court, but not those in state custody for some other reason, such as preconviction custody; in the latter case, sec. 2241 remains available) .... And sec. 2244, by its terms, does not apply to petitions brought under sec. 2241. Rather, it requires permission only before "a second or successive habeas corpus application under section 2254" may be commenced. 28 U.S.C. sec. 2244(b)(1), (2) (emphasis added); see also Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998) (the prior-approval mechanism of sec. 2244 does not apply to petitions brought under sec. 2241). Thus, because Jacobs's first collateral attack is not covered under sec. 2244, the petition he now seeks to file is not second or successive within the meaning of that section: it is, in fact, Jacobs's first federal challenge to his conviction and sentence.
A pretrial habeas is almost certainly gong to be some sort of double jeopardy challenge to an on-going prosecution, as in Jacobs. For like authority, describing supportive authority for placing pretrial petitions under § 2241 rather than § 2254 as an "impressive array," see Gonzalez v. Justices of Municipal Court, 1st Cir. No. 03-2732, 8/19/04 (further making the important point that the onerous AEDPA standard of review does not apply under § 2241; instead, state court findings are subject to deferential review, but issues of law are subject to plenary review) For additional support for Jacobs' procedural holding, see Stow v. Murashige, 9th Cir. No. 03-17036, 11/19/04:
Preliminarily, we hold that Stow’s habeas petition is properly considered under 28 U.S.C. § 2241, not § 2254, because at the time Stow filed his petition he was not “in custody pursuant to the judgment of a State court.” Thus, to obtain habeas relief, Stow need only show that a retrial would violate his right against double jeopardy. We need not consider whether the Hawaii Supreme Court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law.” § 2254(d)(1).
It should be noted that § 2244 establishes a "gatekeeping" mechanism by which "second or successive" habeas petitions are kept out of court; however, that phrase isn't defined, Benchoff v. Colleran, 3rd Cir No. 03-3635, 4/21/05, which is a virtual invitation to litigation. Benchoff suggests that the phrase be treated "as a term of art, which is not to be read literally," and which generally bars claims that could have been raised in an earlier petition (thus, in that particular instance, Benchoff's challenge to his state parole procedure is deemed successive given that the claim was ripe by the time he filed his first petition challenging his conviction).

Walker v. O'Brien also holds that § 2254 is the exclusive mechanism for state-prisoner challenge to the judgment authorizing the imprisonment, therefore its requirements can't be averted by trying to utilize § 2241 -- see, e.g, Rittenberry v. Morgan, 6th Cir No. 05-5606, 11/9/06, esp. fn. 2.

Successive Application, 28 U.S.C. § 2244(b) -- Motion to Recall Mandate (Rule 60(b) Post-Judgment Motion)
Gary Burris v. Parke, 130 F.3d 782 (7th Cir. 1997)
(A) post-judgment motion under Fed. R. Civ. P. 60(b) in the district court, or the equivalent motion in the court of appeals-- which is to say, a motion to recall the mandate--is a 'second or successive' application for purposes of sec.2244(b).... (A) motion filed in the court of appeals after the time for rehearing has expired (or rehearing has been sought and denied) may be granted only if it meets the substantive criteria of sec.2244(b)(2).
(To like effect, with subsequent cites, see also Bill J. Benefiel v. Davis, No. 03-1968, 3/31/05; and Emmett Kapries Dunlap v. Litscher, 301 F.3d 873 (7th Cir. 2002).)

UPDATE: The Supreme Court discussed Rule 60(b) motions in relation to second / successive habeas petitions, in Gonzales v. Crosby, 125 S. Ct. 2641 (2005) (for § 2244 purposes, a habeas application contains one or more "claims," i.e., asserted federal basis for relief from a state-court conviction; therefore, Rule 60(b) motion raises "claim" if it seeks to add new ground for relief from the state conviction or attacks the federal court's previous resolution of a claim on the merits, but not if merely attacks defect in federal habeas proceedings' integrity). Thus, a properly characterized Rule 60(b) motion appeal does not require "precertification." Some of the cases discussed immediately below are canvassed in Gonzales, and the discussion will therefore remain posted (note, for example, that the Court specifically upholds Dunlap:

But, treatment of a Rule 60(b) motion may be sufficiently split nationwide as to be cert-worthy; see, e.g., Hamilton v. Newland, 9th Cir. No. 02-15972, 7/1/04:

Courts have struggled with the issue of when a Rule 60(b) motion brought by a habeas petitioner should be treated as a second or successive petition. Three schools of thought have emerged: some courts have decided that Rule 60(b) motions are never second or successive petitions; others have decided that they always are; and still others have taken a moderate approach that proceeds with a case by case examination of the relief sought in the Rule 60(b) motion. See Rodwell v. Pepe, 324 F.3d 66, 67, 69-71 (1st Cir. 2003) (surveying cases from different circuits); Harper v. Vaughn, 272 F. Supp. 2d 527, 531 (E.D. Pa. 2003) (same). Because the Ninth Circuit has previously observed there should be no bright line rule that every 60(b) motion in a habeas corpus case is treated as a second or successive habeas petition, Thompson v. Calderon, 151 F.3d 918, 921 n.3 (9th Cir.) (en banc), cert. denied, 524 U.S. 965 (1998), we are among those courts that have taken the moderate approach.
And, indeed, the Supreme Court granted certiorari, but later dismissed as improvidently granted, in Abdur'Rahman v. Bell, No. 01-9094, to decide whether and in what circumstances an AEDPA litigant can utilize Rule 60(b). The 6th Circuit's en banc decision on remand surveys the split of authroity and and dervies "a functional approach":
... a Rule 60(b) motion should be treated as a second or successive habeas petition only if the factual predicate in support of the motion constitutes a direct challenge to the constitutionality of the underlying conviction. In cases which the factual predicate in support of the motion attacks the manner in which the earlier habeas judgment was procured and is based on one or more of the grounds enumerated in Rule 60(b), the motion should be adjudicated pursuant to Rule 60(b).
Abdur'Rahman v. Bell, 6th Cir. No. 02-6547, 12/13/04 (court cautions that this approach is permissible only in "extraordinary circumstances"). See also Smith v. Anderson, 6th Cir No. 05-3241, 3/6/05 (Rule 60(b) motion for relief (raising new evidence of brain damage that would arguably mitigate death sentence) suggests "nothing about the procedural correctness or regularity of the previous habeas adjudication," but instead seeks with the new evidence to vacate the state criminal judgment -- hence is "class example" of successive petition.

For authority as to the court's "inherent power to reconsider [its] opinion prior to the issuance of the mandate," see Thompson v. Bell, 6th Cir. No. 00-5516, 6/23/04 (power exercised in that case so that court could supplement record with highly relevant material, omitted through "genuine mistake" and that altered disposition; court thus also stresses its "inherent equitable power to supplement the record on appeal, where the interests of justice require" -- but note the warning of the dissent, that the result "potentially encourages counsel to engage in risky strategy, because there is no guarantee that any given panel" will expand the record in this manner. Note that on 1/7/05 the Supreme Court granted cert in Thompson, No. 04-514, on the issue of whether FRAP 41(d)(2)(D) limited the 6th Circuit's discretion to withdraw its opinion.

Procedure -- Time Limit for Petition

Procedure - Time Limit for 28 USC § 2254 Petition - Reinstated Direct Appeal
Jimenez v. Quarterman, USSC No. 07-6984, 1/13/09
Issue/Holding: Reinstatement of the direct-appeal deadline rewinds the 2254 clock.
Our decision today is a narrow one. We hold that, where a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant has first sought federal habeas relief, his judgment is not yet "final" for purposes of §2244(d)(1)(A). In such a case, "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review" must reflect the conclusion of the out-of-time direct appeal, or the expiration of the time for seeking review of that appeal. Because the Court of Appeals denied a certificate of appealability based on a contrary reading of the statute, we reverse the judgment and remand the case for further proceedings consistent with this opinion.
Procedure -- Time Limit for 28 USC § 2254 Petition -- Change in Substantive State Law
Anou Lo v. Endicott, 7th Cir No. 06-3948, 10/26/07 denying relief in State v. Anou Lo, 2003 WI 107
For Lo: Robert R. Henak
The Wisconsin Supreme Court’s clarification of the law does not constitute a “factual predicate” within the meaning of § 2244(d)(1)(D). Unlike the state court vacatur in Johnson, State v. Head was not a fact within Lo’s own litigation history that changed his legal status. As in Shannon, the Wisconsin Supreme Court’s decision could arguably help Lo’s claim, but that does not make the decision a fact subject to proof or disproof. Moreover, adopting Lo’s argument would render the limitations in § 2244(d)(1)(C) meaningless. Section 2244(d)(1)(C), the primary vehicle through which court decisions restart the limitations period, provides that the decision must involve a constitutional right recognized by the Supreme Court, and that the Court must make the right retroactively applicable to cases on collateral review. To suggest, as Lo does, that any decision by any court on any issue could constitute a “factual predicate” would swallow up the specifically delineated limitations in § 2244(d)(1)(C). Though some state court judgments could potentially constitute a trigger for a new limitations period under AEDPA—as in Johnson—we do not find that a state court decision modifying substantive law constitutes a “factual predicate” under § 2244(d)(1)(D) justifying a new one-year limitations period.
Nor is Lo entitled to equitable tolling.
Procedure -- Time Limit for 28 USC § 2254 Petition -- Wis Stat § 974.06 Motion not Tantamount to Direct Appeal
Richard Graham v. Borgen, No. 04-4103, 4/13/07, denying relief in unpublished Wis COA decision
Issue/Holding: Because a § 974.06 motion is not part of the direct appeal, filing such a motion after expiration of the one-year federal habeas limitation period doesn't toll that limitation.
Holding extended and embellished: William Teas v. Endicott, 7th Cir No. 06-3321, 7/13/07 (state court itself precluded, under §2244(d) from labeling "what is effectively post-conviction [i.e., collateral] review 'direct' review"; Teas's unsuccessful effort to extend the time to take direct appeal came well after expiration of the 1-year tolling period and therefore disqualified him from federal review).
Procedure -- Time Limit for 28 USC § 2254 Petition -- Attempt to Amend Previously Dismissed Petition
Joseph Arrieta v. Battaglia, No. 04-3050, 8/24/06
Issue: Whether an effort to treat a newly filed petition as an amendment to a previous, timely filed but voluntarily dismissed petition, results in an untimely petition.
... The proper course would have been either a motion to continue the stay already in effect or a motion to dismiss with leave to reinstate. The latter motion has the effect of a stay and does not act as a final judgment until the time specified by the court for reinstatement has expired....

Arrieta’s first argument is that under Newell, the district court was required to vacate its dismissal of the original petition—effectively converting the dismissal into a stay—and construe the second petition as an amendment to the rejuvenated (and timely filed) original petition. This argument overreads Newell and runs contrary to recent decisions of the United States Supreme Court.

Motions to reopen premised upon mistake, inadvertence, surprise, or excusable neglect (Rule 60(b)(1)); newly discovered evidence (Rule 60(b)(2)); or fraud (Rule 60(b)(3)) must be brought “not more than one year after the judgment, order, or proceeding was entered or taken.” FED. R. CIV. P. 60(b). This time limit is jurisdictional and cannot be extended. Wesco, 880 F.2d at 985; Brandon, 143 F.3d at 296. Motions for relief on other grounds specified in the rule must be made “within a reasonable time.” FED. R. CIV. P. 60(b).


Arrieta’s fallback Rule 60(b) argument is that the judgment should have been reopened pursuant to the catchall provision of Rule 60(b)(6), which carries no fixed time limit. The Supreme Court has stated that relief under Rule 60(b)(6) will be “rare” in the habeas context; here, it is unavailable because the ground for relief is properly categorized as mistake under Rule 60(b)(1), and “[Rule] 60(b)(1) and [Rule] 60 (b)(6) are mutually exclusive.” Wesco, 880 F.3d at 985 n.5. Accordingly, the district court correctly concluded that Arrieta’s second habeas petition was untimely.

Discussion follows of stay-abeyance procedure, to effect that when petitioner files mixed petition, district court should stay disposition until the unexhausted claims have been fully litigated in state court. See also Robert E. Tucker v. Kingston, 08-1405, 8/15/08 (re: dismissal of 1st petition for non-exhaustion; Tucker didn't ask district court to stay and abey, and subsequent petition following further state postconviction litigation held untimely).
Procedure -- Time Limit for 28 USC § 2254 Petition -- New Evidence Supporting Claim Actually Made
Nicholas Escamilla v. Jungwirth, 04-3666, 10/14/05
The legal problem is that Escamilla knew “the factual predicate of [his] claim” before his trial. The “claim” is that the statement had been coerced; the “factual predicate” for that claim is what happened to Escamilla himself (as opposed to other suspects).... As a matter of law, new evidence supporting a claim actually made at or before trial cannot form the basis of a new period under §2244(d)(1)(D).
Escamilla also runs aground on the "factual problem" that his claim (of police coercion) had been known "for many years," given publicity in the local paper. But compare, Wilson v. Beard, 3rd Cir No. 04-2461, 10/13/05 ("we find that Wilson, who denies timely knowledge of the reports, did not fail to exercise reasonable diligence in not monitoring the local news thirteen years after his conviction").
Procedure -- Time Limit for 28 USC § 2254 Petition -- "Actual Innocence" Exception: Newly Discovered Evidence Also Required
Nicholas Escamilla v. Jungwirth, 04-3666, 10/14/05
The legal shortcoming is that “actual innocence” is unrelated to the statutory timeliness rules. See Gildon v. Bowen, 384 F.3d 883 (7th Cir. 2004). “Actual innocence” permits a second petition under §2244(b)(2)(B)—it clears away a claim that the prisoner defaulted in state court or by omission from the first federal petition—but does not extend the time to seek collateral relief. Section 2244(d) sets the timing rules for all petitions. The Supreme Court said in Dodd v. United States, 125 S. Ct. 2478, 2482-83 (2005), that a second or successive petition must meet these requirements—and this is so, the Court added, even if the time runs out before a given avenue of attack on the conviction becomes legally and factually tenable.

A second petition thus is possible if the factual predicate could not have been discovered earlier, and the prisoner shows actual innocence by clear and convincing evidence....

Followed, so as to reject a "contention that actual innocence is a freestanding exception," Rolando Araujo v. Chandler, 7th Cir No. 05-1174, 12/16/05 (court noting that this "is an argument which has caused courts a good deal of consternation"; perhaps a cert-worthy split is in the making).
Procedure -- Time Limit for 28 USC § 2254 Petition -- Generally -- "Actual Innocence" Exception and Insanity Defense -- Equitable Tolling
John H. Balsewicz v. Kingston, 04-2629, 10/6/05
... In Wisconsin, a direct challenge to a conviction becomes "final” the day the Remittitur issues. See Wis. Stat. § 809.26; State ex rel. Fuentes v. Wisconsin Court of Appeals, 593 N.W.2d 48, 51 (Wis. 1999). Balsewicz sought neither discretionary review of the Court of Appeals decision by the Wisconsin Supreme Court nor certiorari review by the United States Supreme Court. As a result, his conviction became final on August 22, 1994, allowing for the ninety days in which Balsewicz could have applied for certiorari. See Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002).

... (F)rom the date of the Remittitur, May 24, 1994, until the date that he filed his motion for post-conviction relief, February 5, 1999, Balsewicz did not pursue any challenge in state court that would have tolled the statute of limitations. Thus, his habeas petition was untimely.

Issue/Holding2: Even if a "freestanding actual innocence exception" applies to the limitation period set by 28 U.S.C. § 2244, it under Wisconsin law an insanity defense would not satisfy the exception, because 'the mental responsibility phase of the bifurcated trial “is dispositional in nature and has nothing to do with whether the defendant is guilty.'”
This Court has stated that actual innocence, instead of comprising a freestanding exception to the AEDPA, must be presented in conjunction with a claim that the habeas statute of limitations should be equitably tolled. Gildon, 384 F.3d at 887. Equitable tolling is proper when extraordinary circumstances outside of the petitioner’s control prevent timely filing of the habeas petition. Id.
(The court goes on to hold that any "assumptions" Balsewicz might have had about his right to seek collateral relief under Wis. Stat. § 974.06 do not establish "affirmative conduct" -- active steps by the state to prevent his filing an attack -- necessary for equitable estoppel.)

But see Ragan v. Horn, E.D. PA No. 00-2092, 2/10/09, cataloging circuit split (fn. 6) as to whether "actual innocence forms a basis for a grant of equitable tolling" -- which means the quesiton is cert-worthy.

Procedure -- Time Limit for 28 USC § 2254 Petition -- Modification of Sentence Does not Trigger New Deadline
David Lozano, Jr. v. Frank, No. 03-2997, 9/13/05, denying relief of summary order
Issue/Holding: Modification of Lozano's sentence did not establish new deadline for federal habeas purposes, the court rejecting his
conten(tion) that the sentence modification was a further stage of direct review, and his conviction was therefore not final until March 2002. ...

... Lozano’s sentence was modified based on a new factor—his cooperation with authorities in the prosecution of Latin Kings gang members. This fact did not exist at the time of Lozano’s trial and has no bearing on the constitutionality or finality of his convictions for intentional homicide and armed robbery. The notion that Lozano’s sentence modification was a part of the direct review process is a non-starter.

Resentencing is something else: Linscott v. Rose, 436 F.3d 587 (6th Cir 2006) ("We now hold that the one-year statute of limitations begins to run on a habeas petition that challenges a resentencing judgment on the date that the resentencing judgment became final, rather than the date that the original conviction became final."); Ferreira v. DOC, 11th Cir No. 04-15761, 8/7/07 ("AEDPA’s statute of limitations begins to run from the date both the conviction and the sentence the petitioner is serving at the time he files his application become final because judgment is based on both the conviction and the sentence"). Compare, Howard v. Ulibarri, 10th Cir No. 05-2346, 8/9/06 (legislatively-authorized motion to modify sentence tolls 2254 time limit).
Procedure -- Time Limit for 28 USC § 2254 Petition -- Factual Predicate for Claim, Belated Discovery
Brian Daniels v. Uchtman, No. 04-2574, 8/29/05
Issue/Holding: Under 28 U.S.C. § 2244(d)(1)(D), a petition is due one year after “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” The one-year period is triggered by discovery of the factual predicate itself, and not the state court's denial of relief -- Johnson v. United States, 125 S.Ct. 1571 (2005) (state court decision vacating prior conviciton used as enhancer was the triggering "fact") distinguished: there, the state court decision "supplied a necessary element of the petitioner's claim"; here, the state court decision didn't operate as the factual predicate but was merely "a procedural hurdle to clear before proceeding with his federal habeas petition."
Procedure -- Time Limit for 28 USC § 2254 Petition -- Tolling for "Properly Filed" Postconviction Motion
Jesse Smith v. Battaglia, No. 03-2996, 7/13/05
... Everything therefore turns on the question whether Smith’s post-conviction petition was “properly filed” as § 2244(d)(2) uses that term: if so, then his § 2254 petition was timely and he is entitled to go forward with it; if not, then the district court correctly dismissed it. See Pace v. DiGuglielmo, 125 S. Ct. 1807 (2005); Newell, 283 F.3d at 832.

The answer to this question lies in what the Illinois Appellate Court meant ....

In our view, the appellate court’s decision falls short of the clear and express reliance on a state procedural bar that we have called for in the past. See, e.g., Jefferson v. Welborn, 222 F.3d 286, 288 (7th Cir. 2000). First, as one can see, the court structured its comments so that it addressed the merits of Smith’s claims first and only at the end, added its ambiguous comment about timeliness. Its order of treatment would not have mattered had it made a clear alternative ruling, but that is not what it did. Second, we have no way of knowing what the court meant when it said that “defendant’s petition may be considered untimely.” ...

Procedure -- Time Limit for 28 USC § 2254 Petition -- Triggering Date: Discovery of Factual Predicate for Claim
Moore v. Knight, 7th Cir. No. 02-4257, 5/20/04
... Pertinent to this case, the year will run from the later of “the date on which the judgment became final” or “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(A),(D) (2003)....


... In determining the timeliness of this appeal we must consider two issues, first, the date on which Moore discovered the factual predicate of his claim, and second, whether Moore exercised due diligence in discovering this information. We agree with Moore that his appeal regarding the ex parte communications was appropriately raised within one year of his discovering the factual predicate for his claim....

Procedure -- Time Limit for 28 USC § 2254 Petition -- Amendment to Timely Petition as "Relation Back" to Date of Filing
William P. Ellzey v. U.S., 324 F.3d 521 (7th Cir. 2003)
Issue/Holding: A post-filing amendment of the petition to include a new claim relates back to the date of filing and thus avoids the AEDPA statute of limitations.
UPDATE: The Supreme Court subsequently ruled, Mayle v. Felix, 04-563, 6/23/05: "An amended habeas petition, we hold, does not relate back (and thereby escape AEDPA’s one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth."
Procedure -- Time Limit for 28 USC § 2254 Petition -- Allotted Time for Cert. Petition
Terry V. Anderson v. Litscher, 281 F.3d 672 (7th Cir. 2002)
For Anderson: Ralph A. Kalal
(T)he statute of limitations imposed by section 2244(d)(1)(A) begins to run (i) when all direct criminal appeals in the state system are concluded, followed by either completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) when, if certiorari was not sought, all direct criminal appeals in the state system are concluded, followed by the expiration of the time allotted for filing a petition for writ.
This rule is limited to instances of direct appeal; a different rule applies after state court collateral attack, namely no tolling during the period for filing certiorari unless it actually is sought. Gutierrez v. Schomig, 233 F.3d 490 (7th Cir. 2000). See also Jermaine Gildon v. Bowen, 7th Cir. No. 03-2076, 9/30/04 (Gutierrez wasn't overruled by Clay v. U.S., 537 U.S. 522 (2003) ("Clay dealt with the one-year period of limitations provision under 28 U.S.C. § 2255.... But Clay says nothing about a 'properly filed' or “pending” petition. Instead, that case discussed 'final.' ... State law controls the issue of when a state action if pending and when it is final. Wilson v. Battles, 302 F.3d 745, 747 (7th Cir. 2002).") See also Adell Jones v. Hulick, 7th Cir No. 04-2759, 6/1/06, to effect that under Illinois state law, unless motion for reconsideration is actually granted, judgment becomes final when supreme court denies leave to appeal denial of relief on collateral attack, but noting split in circuits on issue.

However, the 6th Circuit "find(s) this distinction (between direct-appeal and collateral-review tolling) no longer tenable," and thus applies tolling in both instances regardless of whether certiorari was sought. Abela v. Martin, 3002 FED App. 0374P, No. 00-2430, 10/22/03 (en banc). The split among the circuits may therefore make this a cert-worthy issue.

Note, separately, authority for the idea that the 2244 deadline is tolled during the time the state-court direct-appeal litigant could have moved for rehearing / reconsideration (whether or not s/he actually did so): Serrano v. Williams, 10th Cir. No. 02-2268, 9/14/04. (Wisconsin procedure does not support a motion to reconsider denial of Rule 809.62 petition for review; however, a motion for reconsideration of an adverse "judgemnt or opinion" may be filed "within 20 days after the date of the decision of the supreme court," Rule 809.64.)

Re effect of USSC authority to reconsider denial of cert, see Robinson v. U.SA., 04-1223, 7/29/05 (finality, for limitation-period purposes of § 2255, attaches "when the Supreme Court affirms on the merits on direct review or denies certiorari, or the time for filing a certiorari petition expires, not the later date when the Court denies a petition for rehearing a denial of certiorari or the time for filing such a petition expires").

Procedure -- Time Limit for 28 USC § 2254 Petition -- Runs from Sentence, Rather than Conviction
Gary Burris v. Parke, 95 F.3d 465 (7th Cir. 1996)
... With immaterial qualifications the year runs from "the date on which the judgment became final by the conclusion of direct review," and we take "judgment" to refer to the sentence rather than to the conviction. That is the federal rule, Fed. R. Crim. P. 32(d)(1), and we think "judgment" in the new statute should bear its federal meaning even though the referent includes state as well as federal judgments. The application of the new statute will be made easier by giving the term a uniform meaning. The federal meaning of "judgment" is the standard one and has the advantage of ruling out a procedure--the bifurcated procedure for which Burris argues--that would disserve the statutory objectives....
Procedure -- Time Limit for 28 USC § 2254 Petition -- Equitable Estoppel / Tolling
Paul T. Williams v. Sims, 7th Cir No 04-1154, 12/1/04
Issue/Holding: The statute of limitations in 28 USC § 2244(d)(1) may be tolled under the common law doctrines of equitable estoppel (defendant's conduct prevents timely or induces late filing) and equitable tolling (plaintiff unable to sue within limitation period, for reasons unattributable to defendant). However, a reasonable mistake of law does not support equitable tolling, thus dooming petitioner's claim: the habeas petition was filed outside the limitation period; delayed filing was caused by a pending state court postconviction motion -- such a motion, if properly filed, would clearly have tolled the habeas time limit, but this motion was ultimately itself held untimely, therefore improperly filed, and could not by itself toll the habeas limitation; uncertainty at the time as to whether an untimely state court motion could have tolling effect, and significant delay by the state court in eventually ruling the motion untimely are not grounds for tolling the time in which to file the federal habeas.
The court has also suggested that "actual innocence" may support equitable tolling, Jermaine Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir. 2004); and although that appears to be the majority view, it is also a showing made only in "rare and exceptional circumstance(s)," Souter v. Jones, 6th Cir No 03-1528, 1/18/05. Examples of equitable tolling, albeit from other circuits: Spottsville v. Terry, 11th Cir No. 05-12656, 2/1/07 (equitable tolling for filing state appeal papers in wrong clerk's office because of misleading instructions by clerk); Espinoza-Matthews v. California, 9th Cir No. 04-56805, 12/28/05 (denial of access by prison to legal materials to mentally unstable inmate while in segregation; decision authored, interestingly, by 7th Cir District Judge Shadur); also, Mendoza v. Carey, 9th Cir No. 04-56733, 6/7/06 (prison denial of access to Spanish-language legal materials may justify equitable tolling for Spanish-speaking litigant); Prieto v. Quarterman, 5th Cir No. 05-70035, 7/18/06 ("crucially misleading" grant of time by district court to file petition at later date, which Pieto relied on in good faith and to his detriment); Roy v. Lampert, 9th Cir No. 04-35514, 7/12/06 (transfer to prison with woefully inadequate prison library); Solomon v. U.S., 6th Cir No. 04-3650, 11/2/06 (transfer to another prison with limited access to law library). See also Allan O. Moore, Sr. v. Battaglia, 7th Cir No. 05-1118, 2/12/07 (remanding for factual record on whether prison library contained copy of statute of limitations, but "express(ing) no opinion at this time regarding whether an inadequate prison library may provide a basis for statutory or equitable tolling").

Lest anyone get the wrong idea, though, see Robert E. Tucker v. Kingston, 08-1405, 8/15/08 ("Equitable tolling is rarely granted. ... Indeed, we have yet to identify a petitioner whose circumstances warrant it.") And, Waldron-Ramsey v. Pacholke, 9th Cir No. 07-35938, 2/25/09 (under controlling USSC precedent, threshold necessary to trigger equitable tolling "very high").

Procedure -- Time Limit for 28 USC § 2254 Petition -- Equitable Tolling for Late Filing Due to Counsel's Incapacitation
Modrowski v. Mote, 322 F.3d 965 (7th Cir. 2003)
... We affirm the dismissal of Modrowski’s § 2254 petition as untimely because an attorney’s failure to act as a result of incapacity is analogous to an attorney’s failure to act as a result of negligence, for which we do not permit equitable tolling.


... We rarely deem equitable tolling appropriate—in fact, we have yet to identify a circumstance that justifies equitable tolling in the collateral relief context....

... (P)etitioners bear ultimate responsibility for their filings, even if that means preparing duplicative petitions .... Likewise, a prisoner cannot prevent his attorney from becoming incapacitated, and there is no reason, however unfortunate the result, not to hold the prisoner responsible in this type of situation, as well.

See fn. 2: "Because we ultimately conclude that attorney incapacity is not an appropriate ground for equitable tolling, we once again reserve the question whether the filing deadline for § 2254 petitions is ever subject to equitable tolling." However, this question was answered, in Williams, immediately above.

Also see Lawrence v. Florida, SCt No. 05-8820, 2/20/07 ("Attorney miscalculation is simply not sufficient to warrant equitable tolling"); Trapp v. Spencer, 1st Cir No. 05-2827, 3/1/07 (Lawrence applies even with regard to mistake made by appointed public defender).

But see Fleming v. Evans, 10th Cir No. 06-6110, 4/3/07 ("We agree with those circuits holding that sufficiently egregious misconduct on the part of a habeas petitioner's counsel may justify equitable tolling of the AEDPA limitations period.").

Procedure -- Time Limit for 28 USC § 2254 Petition -- Tolling for "Pending" Postconviction Motion
Ivy J. Carter v. Litscher, 275 F.3d 663 (7th Cir. 2001)
Issue/Holding: "Any properly filed collateral challenge to the judgment tolls the time to seek federal collateral review." Thus, a properly filed postconviction motion has tolling effect even if the particular issue raised by that motion isn't renewed in the § 2254 petition.

The court's discussion makes it clear that even if the collateral challenge raises a question solely of state law, the time is tolled; that point is also made explicitly in Cowherd v. Million, 6th Cir. No. 02-5499, 8/19/04, en banc -- which adopts Carter, as have other circuits. Note separately that unless certiorari to the U.S. Supreme Court is actually sought, the habeas limitation period runs during the time period during which certiorari could have been sought. Gutierrez v. Schomig, 233 F.3d 490 (7th Cir. 2000).

Procedure -- Time Limit for 28 USC § 2254 Petition -- Not Tolled for Pending but Improperly Filed Postconviction Motion
Eric D. Johnson v. McCaughtry, 265 F.3d 559 (7th Cir. 2001)
For Johnson: Pamela Pepper
Issue/Holding: Johnson's state court postconviction petitions were dismissed -- the trial court told him he had to file it in the court of appeals under State v. Knight, 484 N.W.2d 540 (1984); he did, and the court of appeals told him to re-file it in the trial court under State ex rel. Rothering v. McCaughtry, 556 N.W.2d 136 (Ct. App. 1996) -- and, because these petitions were not "properly filed," the time during which they were pending didn't toll the one-year statute of limitations. Nor is he entitled to equitable tolling.
The Supreme Court subsequently discussed the problem of when a state collateral attack is "pending," in Carey v. Saffold, 536 U.S. 214 (2002), with the impact somewhat blunted by the admittedly "unique" California collater-attack procedure at issue. But if nothing else, the decision does confirm that a challenge is "pending" in the interval between a state court's denial of relief and the filing of a notice of appeal (or petition for review) in the next higher court.

Where state procedure allows a successive collateral attack, but conditioned on grant of permission to pursue it, the 2254 deadline isn't tolled during the time such an attack was filed but permission to proceed with it was denied by the state court: Juan Martinez v. Jones, 7th Cir No. 08-3118, 2/19/09.

Where the federal habeas court erroneously deems a claim unexhausted, causing petitioner to return to state court for a futile effort at renewal of the claim during which time the habeas limitation period expires, equitable tolling allows the habeas petition to be re-filed as timely. Brinson v. Vaughn, 3rd Cir No 02-4466, 2/8/05.

Procedure -- Time Limit for 28 USC § 2254 Petition, Containing Unexhausted Claims -- Stay Proceedings Pending Exhaustion, So As To Avoid Statute of Limitations Problem
Cardell C. Mitchell v. McCaughtry, 291 F. Supp. 2d 823 (E.D. Wis. 2003)
Where, as here, a petitioner presents colorable constitutional claims which have not yet been, but could be, presented to the state courts, a stay should be granted. If I were to dismiss this petition under Rose, it would likely be time-barred when re-filed. Therefore, I will stay further proceedings in this matter pending exhaustion of petitioner's claims in state court. Petitioner is expected to promptly pursue his state remedies and to notify the court upon completion of the state procedure.
The court suggests, but does not distinctly hold that this result is limited to "'mixed petitions -- those containing exhausted and unexhausted claims." Fn. 19. See also Freeman v. Page, 208 F.3d 572, 577 (7th Cir.), cert denied, 531 U.S. 946 (2000) ("dismissal is not proper when that step could jeopardize the timeliness of a collateral attack"). For a comprehensive survey of cases, see Crews v. Horn, 3rd Cir. No. 99-9008, 3/4/04 ("We hold that district courts have the discretion to stay mixed habeas corpus petitions but that, as in this case, when an outright dismissal could jeopardize the timeliness of a collateral attack, a stay is the only appropriate course of action."); also see, Olvera v. Giurbino, 9th Cir. No. 02-56134, 6/8/04 ("The withdrawal and abeyance procedure cures this problem and allows diligent petitioners to have all of their federal claims heard on the merits, which advances the court’s interest in deciding cases on the merits rather than technicalities."). See also discussion among various opinions in Pliler v. Ford, No. 03-221. See Griffin v. Rogers, 6th Cir No 04-3302, 3/3/05 (to effect that where stay-abey procedure recognized, and complied with, for exhaustion of unexhausted claim, petitioner entitled to mandatory tolling; but even if compliance with such procedure lacking, petitioner may invoke equitable tolling principles where mandatory tolling not avaliable).

UPDATE: The Supreme Court has now recognized the stay-abey procedure, but "only in limited circumstances," Rhines v. Weber, 125 S. Ct. 1528 (2005):

[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.

... A mixed petition should not be stayed indefinitely. ... Thus, district courts should place reasonable time limits on a petitioner’s trip to state court and back. ... And if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all. ...

See also Joseph Arrieta v. Battaglia, No. 04-3050, 8/24/06 ("We read this language as directing district courts to grant a habeas petitioner’s motion to stay a mixed habeas petition when the foregoing prerequisites are established ....").

Potential distinction drawn by Jackson v. Roe, 9th Cir No. 02-56210, 9/23/05: Rhines addresses only stays of mixed petitions, but staying a fully exhausted petition (i.e., one where the petition withdraws the unexhausted claim and returns to state court for further litigation with an eye toward later adding it back to the petition after exhausting remedies) is something else. On the other hand, this latter procedure (relation-back amendment) is likely to suffer its own stumbling back, Mayle v. Felix, 125 S. Ct. 2562 (2005) (new claims may not support amended petition if based on different facts from original clam and are time-barred). What about wholly unexhausted claims? See Rasberry v. Garcia, 9th Cir No. 03-15854, 5/25/06 ("We decline to extend [Rhines v. Weber] rule to the situation where the original habeas petition contained only unexhuasted claims."). See also James P. Dolis v. Chambers, 05-3781, 7/24/06 (discussing wholly unexhausted petition, and indicating that district court must consider whether stay is appropriate, though without saying that stay is required; court also suggests that petitioner file simultaneously in both state and federal courts, and ask latter for stay until former has run its course).

Procedure -- Time Limit Under 28 USC § 2244(d)(1) For Challenge to State Prison Disciplinary Proceeding
William Cox v. McBride, 279 F.3d 492 (7th Cir. 2002)
The judge thought the suit in any event barred by the one-year statute of limitations in 28 U.S.C. sec. 2244(d)(1) for filing a petition for habeas corpus. But that provision is limited to petitions filed by persons "in custody pursuant to the judgment of a State court," and a prison disciplinary board is not a court. ...

The distinction between a state court and a state prison disciplinary board is well established in this circuit in cases dealing with several other provisions of the federal habeas corpus statute that use the word "court." ... In light of our cases, we are unwilling to interpret the word more broadly in section 2244(d)(1). Congress can and perhaps should amend the statute to bring petitions for habeas corpus that challenge prison discipline under the one-year (or some other definite) limitation, but unless and until it does so the only limitation is the equitable principle of laches codifed in Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Courts. ...

But see Shelby v. Bartlett, 9th Cir No. 03-35847, 12/13/04, to effect that 7th Circuit is lone court to derive this "strained interpretation." Disagreement with Cox also expressed in Dulworth v. Evans, 10th Cir No. 05-6351, 4/4/06. That Cox is an outlier may impel the court to reverse course, or may lead to cert-review due to an intractable inter-circuit conflict. Caution as to observing the one-year time limit is therefore advisable.

Procedure -- Transcript

Procedure -- Transcript, etc. -- Rule 5 and Service on Petitioner
Chavez v. Morgan, 932 F. Supp 1152, 1153 (E.D. Wis. 1996), as quoted with approval in Thompson v. Greene, 4th Cir No. 03-7401, 10/25/05:
In a similar situation, a Wisconsin district court, in Chavez v. Morgan, dismissed the State’s response to a habeas corpus petition for failure to provide an "appropriate answer" which would include "copies of the relevant judgment of conviction, any available and relevant transcripts, and any post-conviction pleadings and decisions," as required by Habeas Rule 5. 932 F. Supp. 1152, 1153 (E.D. Wis. 1996). The court explained that Habeas Rule 5 puts the burden on the State to include the exhibits because petitioners are often "prisoners with little knowledge of the pleading requirements in habeas cases and, more importantly, little to no access to the pleadings and other judicial documents which are necessary to determine whether or not they have properly exhausted their state court remedies." Id.
See also Dennis Thompson, Jr. v. Battaglia, 7th Cir. No. 04-3110, 8/14/06 (State's failure to attach transcript to return, acquiesced in by petitioner and district court, "slipshod at best. The vastly preferable course would have been for the complete trial transcript to have been included in the record .... That said, this is the unusual case in which we can resolve these issues without the transcript. We do so by taking the facts presented by Thompson in the light most favorable to him.")
Procedure -- Transcript -- Necessity
Eloy Simental v. Matrisciano, 7th Cir. No. 02-3054, 4/5/04
Before proceeding to his Brady claim, Simental argues that the district court “deprived [him] of a meaningful review” when it denied his petition without reviewing the state trial transcript, relying instead on the facts as found in the Illinois Appellate Court rulings. We disagree. While the review of a state court transcript is occasionally necessary in habeas cases, it is certainly not required and is, in fact, quite rare. Indeed, as Rule 5 of the rules governing § 2254 cases makes clear, the decision of whether transcripts are necessary is left to the sound discretion of the district court. The rule provides that the answer to a habeas petition must indicate what transcripts are available and what proceedings have been recorded but not transcribed. In addition, the State must attach to its answer any portions of the transcript it deems relevant (here, the State indicated that the trial transcript was available but was not being submitted because it was “unnecessary to a just resolution of this action”). Once this is done, the court, “on its own motion or upon request of the petitioner may order that further portions of the existing transcripts be furnished or that certain portions of the non-transcribed proceedings be transcribed and furnished.” Rules Governing Section 2254 Cases in the U.S. Dist. Cts., 28 U.S.C. pt. VI, ch. 153, Rule 5 (emphasis added). No request was made here, and considering the loose standard to which we have just referred, the district court certainly did not abuse its discretion in resolving this case without reviewing the full state transcript. The material facts of this case as they relate to the issue presented were clear, and the district court was able to make an informed decision without plowing through the full state transcript. Finally, we emphasize that on habeas review, except in limited circumstances, the district court does not make independent factual determinations. 28 U.S.C. § 2254(e). See United States ex rel. Green v. Greer, 667 F.2d 585, 586 (7th Cir. 1981) (an examination of a record is not required if the petitioner “fails to identify any incompleteness or inaccuracies in the facts before the district court”). On collateral review, factual determinations are the work of the state, not federal, courts.
Sufficiency of evidence claims might be treated differently, Nash v. Eberlin, 6th Cir No. 05-3499, 2/10/06 ("In fact, there is a statutory requirement that pertinent portions of the trial transcripts be provided in cases involving sufficiency-of-the-evidence claims: ... 28 U.S.C. § 2254(f). This language underscores the importance of an independent review of the state-court record on the part of the federal courts with respect to sufficiency-of-the-evidence claims."); Jeffries v. Morgan, 6th Cir No. 06-5726, 4/14/08 ("both Jeffries’ constitutional challenge to the sufficiency of the evidence and his Brady challenge require a habeas court to review the entire record of the trial in order to properly assess his habeas petition").

Procedure -- Venue

Procedure -- Venue
Frank Moore v. Olson, 7th Cir. No. 03-4053, 5/17/04
Issue/Holding: "(T)he location of a collateral attack is best understood as a matter of venue, which means that both waiver and forfeiture are possible." Thus, "the defense of improper venue was forfeited when it was omitted from the custodian’s opening brief."


Particular Issues -- Competency

Particular Issues - Competency - Failure to Hold Hearing
Gregory Sturgeon v. Chandler, No. 06-3934, 1/13/09
Issue/Holding: Though a trial judge is obligated to order a hearing sua sponte given substantial doubt as to defendant's competency, the state court did not act unreasonably in failing to hold a competency hearing in the face unanimous expert opinion that no such doubt existed.
Particular Issues - Competency - During State Postconviction Review
Joseph E. Corcoran v. Buss, No. 07-2093, 12/31/08
Issue/Holding: "The petitioner has a “tougher row to hoe” when challenging his competence in postconviction proceedings than when he is challenging his competence to stand trial." State court finding that, although suffering from paranoid schizophrenia, Corcoran was competent to waive review crediting his stated belief that the death penalty was a just punishment for his crimes, wasn't unreasonable.
Particular Issues - Competency - During Habeas Proceedings
Eric D. Holmes v. Buss, 506 F.3d 576 (7th Cir 2007)
Issue/Holding: Beyond noting the bedrock holding (a general requirement that "a petitioner for federal habeas corpus must be competent to assist his counsel; if not, the proceeding must be stayed"), no summary is likely to do justice to Judge Posner's observations, often subtle, always astute, one seamlessly tumbling after the other. As the court indciates, though, in non-capital cases there is virtually no likelihood a petitioner will raise competency to participate in his or her federal habeas proceeding. The impact on Wisconsin litigation, then, could prove nil.
Particular Issues -- Competency -- Trial Court Sua Sponte Duty
Ronald E. Burt v. Uchtman, 7th Cir No. 04-1293, 9/6/05
Issue/Holding: State trial court's failure to order competency hearing, sua sponte, was denial of due process under the circumstances ("If ever there was a case in which a trial court should have sua sponte ordered a renewed competency hearing, this is that case"):
  • "a sudden guilty plea with no attempt to seek concessions from the prosecution may, when coupled with other evidence of mental problems, raise doubts as to the defendant’s competency"
  • "significantly below average intelligence ... with attention deficit hyperactive disorder and a brain impairment that made him prone to poor impulse control"
  • inadequate psychiatric report, based on examination eight months before trial, which failed to include review of pertinent medical history; post-trial psychiatric evaluation describing probable brain damage (state "court’s decision to disregard [this latter] report without explanation is troubling"
Particular Issues -- Competency
Bill J. Benefiel v. Davis, 7th Cir. 03-1968, 1/30/04
Benefiel urges us to find that the state court’s finding that he was competent was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” The argument is based in large part on a contention that the only evidence which was before the judge supported Benefiel’s claim. Were we to accept that argument, we would be taking from the judge the ability to assess the credibility and persuasiveness of the evidence. This trial judge was not convinced by the evidence presented. Relying on his own observation, as well as the testimony of psychological experts from the earlier hearings, he was convinced that nothing had changed and that Benefiel remained competent to stand trial. We cannot say that the decision of the Indiana Supreme Court upholding that determination was unreasonable in any way.
Compare, Johnnie Brown v. Sternes, 304 F.3d 677 (7th Cir. 2002) (counsel's failure to investigate documented, long-standing, severe history of mental illness for competency denied effective assistance of counsel; and, Lawrence Dalton v. Battaglia, No. 03-3982, 3/23/05 (counsel's didn't "wholly ignore his client's extensive psychiatric history," but, rather, obtained diagnosis and prescription for anti-psychotic drug).

Particular Issues -- Confessions

Particular Issues - Miranda
Howard A. Allen, Jr. v. Buss, 7th Cir No. 07-2486, 3/11/09
Issue/Holding: "Improper" Miranda warning "did not nullify an earlier valid warning."
Particular Issues - Miranda
Eric Smiley v. Thurmer, 7th Cir No. 07-2901, 9/5/08 granting relief on review of unpublished direct-appeal opinion; and unpublished collateral-attack opinion
For Smiley: Rex R. Anderegg
Issue/Holding: Though he was told he was not a "suspect," Smiley was held in custody and subjected to express interrogation, and he was therefore entitled to Miranda warnings:
The Supreme Court of the United States has made it clear that, when an individual is subject to custodial interrogation, the fact that the custody was initiated for a reason other than the subject matter of the interrogation does not alter the necessity of warning the individual of his right to silence and to the assistance of counsel. ...

Mr. Smiley was in custody when the police subjected him to extensive questioning about the Garrett murder. Under these circumstances, clearly established Supreme Court precedent required that the detectives inform Mr. Smiley about his Miranda rights. ... Because the detectives failed to administer a Miranda warning at the beginning of the first custodial interrogation, all of the statements made by Mr. Smiley during that interrogation should have been suppressed. ...

Particular Issues -- Confessions -- Voluntariness: Contact with Parent
Alex Gilbert v. Merchant, 7th Cir No. 05-3571, 6/8/07
... It was undisputed that Gilbert’s mother had not been permitted to see him at any time prior to his confession; the only question was the import of his sequestration from her. Gilbert’s assertion, as the appellate court understood it, was that (in view of his age) the absence of his mother during questioning in and of itself compelled the conclusion that his confession was involuntary. App. Ct. Order at 12. But as the appellate court correctly recognized, the absence of a parent is not dispositive: it is the totality of the circumstances underlying a juvenile confession, rather than the presence or absence of a single circumstance, that determines whether or not the confession should be deemed voluntary. Michael C., 442 U.S. at 724-27, 99 S. Ct. at 2571-73; Bridges, 447 F.3d at 997, 998-99; Ruvalcaba, 416 F.3d at 560-61; Hardaway, 302 F.3d at 763-65; Stone v. Farley, 86 F.3d 712, 717-18 (7th Cir. 1996). Indeed, we ourselves have sustained as reasonable a state court’s holding that a fourteen year-old’s confession was voluntary notwithstanding the absence of a friendly adult. Hardaway, 302 F.3d at 766-68. Given the all-or-nothing nature of Gilbert’s argument, we cannot say that the Illinois Appellate Court was foreclosed from ruling on the voluntariness of Gilbert’s confession notwithstanding the fact that an evidentiary hearing had not been conducted.
Particular Issues -- Confessions -- Right to Counsel: Attachment
Svondo Watson v. Hulick, No. 06-1388, 3/26/07
The Sixth Amendment right to counsel attaches at the initiation of adversary judicial proceedings, whether by way of formal charge, indictment, information, or arraignment. Fellers v. United States, 540 U.S. 519, 523 (2004); Kirby v. Illinois, 406 U.S. 682, 689 (1972). This right to counsel applies not only at trial, but also at any critical stage of the prosecution. Jackson v. Miller, 260 F.3d 769, 775 (7th Cir. 2001). In this case, Watson had not been indicted and charges had not been brought against him when he confessed to Nigohosian. Watson cites Illinois law, which holds that the level of prosecutorial involvement may bear on whether the defendant’s right to counsel has attached, see, e.g., People v. Garrett, 688 N.E.2d 614, 618 (Ill. 1997), and asks us to find that his right to counsel attached because of Nigohosian’s participation in the investigation. But again, formal proceedings had not begun, so Watson had no Sixth Amendment right to counsel when he confessed. See Moran v. Burbine, 475 U.S. 412, 428-32 (1986) (rejecting claim that Sixth Amendment right to counsel mandated suppression of statements made before initiation of adversary judicial proceedings because defendant’s lawyer was not present). We have also held that interrogation of a suspect before the filing of a charge, without more, does not trigger the right to counsel. See First Def. Legal Aid v. City of Chi., 319 F.3d 967, 970- 71 (7th Cir. 2003); Sulie v. Duckworth, 689 F.2d 128, 130 (7th Cir. 1982).
Particular Issues -- Confessions -- Miranda -- "Scrupulously Honor" Assertion of Rights
Monica Cosby v. Sigler, 7th Cir. No. 04-3331, 1/18/06
... Applying these factors, the Illinois court noted that although Cosby did invoke her right to remain silent, the police scrupulously honored her right, ceasing questioning for over two hours. The Illinois court also noted that the officers gave Cosby fresh Miranda warnings before she made the 3:00 a.m. statement. The Illinois court determined that this statement “would not have been subject to suppression.” Furthermore, as the Illinois court noted, the 3:00 a.m. statement was not admitted at trial; only the later 9:00 a.m. statement was admitted. The Illinois court further determined that the 9:00 a.m. statement, which also occurred after additional Miranda warnings, was similarly not a violation of her right to remain silent.

This determination was not an unreasonable application of Mosley....

Particular Issues -- Confessions -- Miranda -- Assertion of Right to Counsel: Merely Consulting with Counsel Insufficient
Monica Cosby v. Sigler, 7th Cir. No. 04-3331, 1/18/06
Issue/Holding: Mere fact that counsel met with Cosby at police station insufficient to establish assertion of right to counsel.
Particular Issues -- Confessions -- Miranda -- "Interrogation"
Ike Easley v. Frey, 7th Cir. No. 04-1614, 1/11/06
Issue: Whether, after an exercise of right to silence, the officer's comment to the effect that Easley had been implicated in a capital crime for which death was a possible penalty was "functional equivalent of interrogation" in violation of Miranda.
Easley’s argument is not persuasive. Long’s intent to elicit a response from Easley may suggest that the statement could be a form of interrogation, but his intent is not dispositive ...

In this case, we do not believe that Long’s statement regarding the evidence and the possible consequences of the charges Easley faced rose to the level of interrogation under existing United States Supreme Court precedent. As the Fourth Circuit observed in United States v. Payne, “information about the evidence against a suspect may also contribute to the intelligent exercise of his judgment regarding what course of conduct to follow.” 954 F.2d 199, 202 (4th Cir. 1992) (citation omitted); accord United States v. Moreno-Flores, 33 F.3d 1164, 1169-70 (9th Cir. 1994) (fact that police statements to suspect “may have struck a responsive chord” insufficient to find them functional equivalent of interrogation). ... Like the Fourth Circuit, we do not believe that the provision of information, even if its weight might move a suspect to speak, amounts to an impermissible “psychological ploy.” We have cited Payne’s reasoning approvingly, see United States v. Jackson, 189 F.3d 502, 510 (7th Cir. 1999), and United States v. Cooper, 19 F.3d 1154, 1163 (7th Cir. 1994), and do so again today.

See also Caputo v. Nelson, 1st Cir No. 06-1117, 7/26/06 (confronting suspect with evidence against him not functional equivalent of interrogation; collecting cases); Fleming v. Marsh, 6th Cir No. 07-2311, 2/25/09 (after finding murder weapon, officer told Fleming to "do the right thing" or "get with the program," and asked if he now wanted to talk; state court finding that this didn't amount to "interrogation" not unreasonable application of Rhode Island v. Innis).
Particular Issues -- Confessions -- Voluntariness -- Trickery
Conner v. McBride, 7th Cir. No. 03-1951, 7/20/04
In evaluating the voluntariness of a waiver or confession, a court must consider the totality of the circumstances. ... In applying the totality test, we have identified a variety of factors which a court may consider to assess voluntariness, including but not limited to: whether the defendant was read his Miranda rights; the individualized characteristics of the defendant (i.e., age, intelligence level, education, mental state); interrogation conditions (i.e., duration, environment, access to restroom facilities and food); and the conduct of law enforcement officers (i.e., use of physical punishment)....

Furthermore, we have repeatedly held that “a law-enforcement agent may ‘actively mislead’ a defendant in order to obtain a confession, so long as a rational decision remains possible.” ...

First, although we explicitly rejected this assertion above, for argument’s sake we will assume that the detectives did in fact use a criminal codebook to affirmatively misrepresent Indiana criminal law to Conner. But such a basis is insufficient to deem a state court’s admission of a confession unreasonable under AEDPA when a defendant has already voluntarily waived his Miranda rights. ...

Particular Issues -- Confessions -- Miranda: Warnings from Counsel as Substitute for Warnings from Law Enforcement
Charles E. Sweeney, Jr. v. Carter, 361 F.3d 327 (7th Cir 2004)
... No authority of which we are aware holds that a suspect’s discussions with defense counsel can double for the usual warnings given by law enforcement officers; indeed, the contrary position—that whatever warnings are otherwise required by Miranda must be administered by the public authorities—is quite well-established. The “effective equivalent” language in Miranda has been limited to situations in which police officers have botched or otherwise truncated the usual warnings. See, e.g., Duckworth v. Eagan, 492 U.S. 195 (1989); Richardson v. Duckworth, 834 F.2d 1366, 1370-71 (7th Cir. 1987).
Particular Issues -- Confessions -- Miranda "in Custody" Requirement
A.M. v. Butler, 7th Cir. No. 02-2882, 3/2/04
In determining whether a person is “in custody,” the question is whether, examining the totality of the circumstances, a reasonable person in the petitioner’s position would have felt “at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). In making this determination, “the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442 (1984). The Court is clear that “the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 323 (1994). See also, Maine v. Thibodeau, 475 U.S. 1144, 1146 (1986).

While giving lip service to the objective standard, stating that the trial court must “ascertain what a reasonable person, innocent of any crime, would perceive under similar circumstances,” the Illinois court shunned this objective test, substituting instead a focus on the subjective belief of Detective Cassidy. The court stressed that Cassidy believed Morgan was merely a witness and, for that reason, Miranda warnings were not required. That is not, however, the correct inquiry under Supreme Court precedent. …

Even without this error, the court’s evaluation of the totality of the circumstances, see, e.g., Thompson, 516 U.S. at 112, was objectively unreasonable. …

At the outset, we note that, in making the objective inquiry, Morgan’s age is an important factor. … Morgan was only 11 when he sat alone in the police interrogation room.

With Morgan’s age in mind, we turn to the circumstances of this case and note first that Morgan was not a seasoned juvenile delinquent. In fact, he had no prior experience with the criminal justice system when he was questioned for almost 2 hours in a closed interrogation room with no parent, guardian, lawyer, or anyone at his side. Since the police told his mother it was unnecessary for her to come to the station, he was at the mercy of the detectives to drive him home. Thus, he had no way of leaving the police station even if he felt he could leave. Nor was he ever told he was free to go or that he was not under arrest. Furthermore, compare this encounter with the police with his prior two, where he sat in a police car outside his own home and then at a desk in a public area of the police station, all while the police were “nice” to him. Finally, there are significant concerns regarding the mode of questioning. Morgan insisted that the detectives leaned closely in towards him when they spoke, promising him that both God and the police would forgive him for what he did, and assuring him that if he told the truth he could go home to his brother’s birthday party. Cassidy denied these activities but acknowledged that he was close enough to touch Morgan and that he repeatedly told Morgan that he was lying. All of these facts lead to the conclusion that a reasonable person in Morgan’s situation would have considered his freedom curtailed.…

Judge Easterbrook’s dissent points out that the Supreme Court has never held “that ‘custodial interrogation’ depends on the suspect’s age” (the Court must have enunciated a controlling principle before federal habeas relief may be entertained); and, indeed, a subsequently-decided case, Yarborough v. Michael Alvarado, 02-1684, 6/1/04 ("Our opinions applying the Miranda custody test have not mentioned the suspect’s age, much less mandated its consideration"), decision below: 316 F.3d 841 (9th Cir. 2003), makes the result in A.M. questionable.
Particular Issues -- Confessions -- Miranda "in Custody" Requirement
Larry J. Sprosty v. Buchler, 79 F.3d 635 (7th Cir. 1996), denying relief in unpublished Wisconsincourt of appeals opinion
For Sprosty: Thomas Strakeljahn
... Although the Supreme Court has never provided an exhaustive list of factors to be consid- ered in determining whether a suspect is in custody within the meaning of Miranda, its reasoning in Berkemer is highly instructive. ... Among the factors that make it unlikely that a person detained for a traffic stop will be coerced into " 'speak[ing] where he would not otherwise do so freely,' " id. at 437 (quoting Miranda, 384 U.S. at 467), are the brevity of the deten- tion, the fact that it usually takes place in public view rather than in a police-dominated atmosphere, and that it involves the participation of only one or two police of- ficers. Id. at 437-39. Circumstances such as these strong- ly mitigate the danger that a person's will to remain silent may be overborne by police coercion. Id.

With the Court's analysis in Berkemer as a guide, other courts have identified the following factors to be significant in determining whether a person is in custody: whether and to what extent the person has been made aware that he is free to refrain from answering questions, see Betts, 16 F.3d at 762; United States v. Griffin, 7 F.3d 1512, 1518 (10th Cir. 1993), cert. denied, 115 S. Ct. 2630 (1995); whether there has been prolonged, coercive, and accusatory ques- tioning, or whether police have employed subterfuge in order to induce self-incrimination, see United States v. Johnson, 64 F.3d 1120, 1126 (8th Cir. 1995), cert. denied, 116 S. Ct. 971 (1996); Griffin, 7 F.3d at 1518; the degree of police control over the environment in which the inter- rogation takes place, and in particular whether the sus- pect's freedom of movement is physically restrained or otherwise significantly curtailed, see United States v. Smith, 3 F.3d 1088, 1097-98 (7th Cir. 1993), cert. denied, 114 S. Ct. 733 (1994); Johnson, 64 F.3d at 1126; United States v. Masse, 816 F.2d 805, 809 (1st Cir. 1987); and whether the suspect could reasonably believe that he has the right to interrupt prolonged questioning by leaving the scene, see United States v. Jones, 21 F.3d 165, 170 (7th Cir. 1994); United States v. Fazio, 914 F.2d 950, 955- 56 (7th Cir. 1990); United States v. Hocking, 860 F.2d 769, 773 (7th Cir. 1988).


... The fact that upon their arrival, the police administered Miranda warnings to Sprosty certainly does not serve to establish that Sprosty was in their custody. ... Yet in the context of a prolonged detention where there is persistent, accusatory question- ing by several officers, the fact that the police observed certain formalities of a custodial arrest without actually telling Sprosty that he was not under arrest does pro- vide some support for an inference that Sprosty was in custody for purposes of Miranda. ...

... the way in which the officers initially approached Sprosty, barring his path from the mobile home and escorting him inside, the fact that one armed officer was exclusively occupied with guard- ing Sprosty for nearly three hours while four other offi- cers searched, and the persistent requests by the officers that Sprosty lead them to the incriminating evidence ... demon- strate that Sprosty's freedom of action was significantly restrained in a way that increased the likelihood that Sprosty would succumb to police pressure to incriminate himself. ...

Though not discussed by the court, there is a national (which is to say, potentially cert-worthy) split on the "transformation" issue: i.e., "whether the actual reading of Miranda rights in an otherwise non-custodial interrogation is enough to transform the interrogation into the custodial type," State v. Schwebke, Iowa App No. 03-1194, 9/29/04, n. 1, collecting cases, and characterizing Sprosty as "tak(ing) a middle ground, such that the reading of Miranda rights is but one factor in making a custody assessment."
Particular Issues -- Confessions -- Voluntariness, (17-year Old) "Juvenile" Suspect -- Keeping Parents Away from Suspect
Darnell Bridges v. Chambers, 7th Cir No. 05-3264, 5/12/06
Issue/Holding1: Federal law does not require that someone under 18 must be regarded as a juvenile; Illinois state law regards a juvenile as someone under 17, and therefore the state court reasonably concluded that Bridges, 17 years old when he gave his challenged statement, was an adult for purposes of determining the voluntariness of his statement.
Issue/Holding2: Keeping Bridges' parents away from him during his interrogation, while giving the court "pause," "by itself is not enough to warrant a finding that" the state court unreasonably applied federal law. The statement was voluntary under the totality of the circumstances:
Bridges was almost 18, he was a senior in high school, he was receiving average grades, he regularly attended school, and he also held down a part-time job. He lived in a stable, two-parent household. As for the actual questioning, it was relatively brief. He was questioned for 30 minutes beginning at 8:30 p.m., then again at 3:30 a.m. for 30 minutes. He was then questioned for an hour starting at 6:00 a.m., at which time he gave his statement. He was allowed to use the restroom, and he was given something to drink. There was no evidence he was not allowed to sleep between interviews. Finally, the Illinois court found the police did not engage in any physical or mental abuse. In the end, the court examined Bridges’s intelligence, background, experience, mental capacity, education, and physical condition, as well as the legality and duration of the detention, the duration of the questioning, and any physical or mental abuse by the police, including any threats or promises.
Particular Issues -- Confessions -- Voluntariness, Juvenile Suspect
Alejandro Ruvalcaba v. Chandler, No. 04-1741, 7/20/05
Issue/Holding: Though Ruvalcaba's status as a juvenile was "an important factor to consider, ... his age alone does not render the confession involuntary." Other factors supported the state court's determination of voluntariness: no evidence of "abnormally low intelligence" or other high-vulnerability characteristics; he was "streetwise," which was indicative of "capacity to appreciate his Fifth Amendment rights"; and, "there is relatively little evidence of official coercion" (though detined for 14 hours, he was questioned a total of less than 2 hours over 3 sessions, and was not denied food, etc.). Challenge to voluntariness of Miranda waiver rejected on same ground.
Interestingly, A.M. v. Butler, 7th Cir. No. 02-2882, 3/2/04, wasn't cited, even to distinguish it.
Particular Issues -- Confessions -- Miranda-waiver, Voluntariness
A.M. v. Butler, 7th Cir. No. 02-2882, 3/2/04
… In fact, the Supreme Court has consistently recognized that a confession or waiver of rights by a juvenile is not the same as a confession or waiver by an adult. A defendant’s age is an important factor in determining whether a confession is voluntary. …

Here, the circumstances weigh in favor of a determination that Morgan’s inculpatory statements were involuntary. When Morgan sat, alone, in the police interrogation room, he was not even old enough to be caddy on a golf course under Illinois law. And to repeat, he had no prior experience with the criminal justice system. Detective Cassidy continually challenged Morgan’s statement and accused him of lying, a technique which could easily lead a young boy to “confess” to anything. No friendly adult, moreover, was present during the questioning. When a youth officer was brought in, there is no evidence that he did anything to protect Morgan’s rights. As we made clear in Hardaway, “a state-provided youth officer who functions as nothing more than an observer will not be considered a friendly adult presence for purposes of the totality of the circumstances.” Hardaway, 302 F.3d at 765. Finally, after the first inculpatory statement was uttered, Morgan was given a standard version of his rights. Cf. Michael C., 442 U.S. at 726-27 (a 16-year-old juvenile voluntarily and knowingly waived his Fifth Amendment rights under an interrogation where he had considerable experience with the police and had his Miranda rights explained to him); United States v. Male Juvenile, 121 F.3d 34, 40 (2nd Cir. 1997) (confession voluntary after juvenile had rights explained to him by FBI agent). A comparison with Hardaway is relevant. There, “with the gravest misgivings,” we held that a state court’s decision that a confession by a 14-year-old with extensive prior history with the criminal justice system, including 19 arrests, was not involuntary was not unreasonable. Hardaway, 302 F.3d at 759. In contrast, here, Morgan was 3 years younger and inexperienced with the police. Considering these facts, we cannot say the state court’s decision was reasonable. The statements should have been suppressed. At the very least, the admissibility of his statements —on Miranda and voluntariness grounds—should have been vigorously challenged in pretrial motions by his counsel. Not to have done so compels the conclusion that counsel was ineffective.

The majority expresses explicit concern about the danger of an 11-year old giving an unreliable, coerced confession [e.g., fn. 6: “that danger is certainly a possibility when the person is an 11-year-old placed in an intimidating situation”]. Indeed, the majority intimates that an 11-year-old simply can’t “understand the inherently abstract concepts of the Miranda rights and what it means to waive them” [fn. 11, citing authorities with respect to “children’s susceptibility to adults’ suggestions during interrogations”]. But there is also an interesting subtext, appearing nowhere in the opinion, but as was widely reported in local news reports (no longer available non-commercially on-line), the confession was “taken by the same Chicago police detective who later claimed two boys confessed to killing Ryan Harris. … The boys were later exonerated by DNA tests ….” Harris' false confession was described in the following terms by a law review article (authored, perhaps not coincidentally by A.M.'s attorney): "Of all the proven false confessions involving very young children, perhaps the most notorious case" was Harris's. (The author added in a footnote that A.M.'s confession bore the same hallmarks of falseness.) Hard to believe this bakcground didn't weigh on the minds of the 7th Circuit panel.
Particular Issues -- Confessions -- Miranda-waiver, Misstatement as to Immediate Availability of Public Defender
Frederick G. Jackson v. Frank, 02-1979, 11/6/03, reversing Jackson v. Litscher, 194 F.Supp.2d 849 (E.D. Wis 2002), on review of State v. Jackson, 229 Wis. 2d 328, 600 N.W.2d 39 (Ct. App. 1999)
For Jackson: Melinda A. Swartz, Milwaukee Appellate
On-line brief
Issue/Holding1: An interrogating officer's rejection of a suspect’s request to “have a lawyer right now” was incorrect as a matter of state but not federal law, and therefore did not vitiate the ensuing Miranda waiver:
We begin with Jackson’s request for relief under Wisconsin law. Although the detective may have failed to follow state law by not allowing Jackson to contact the public defender’s office and mischaracterized the provisions of the law, review of a habeas petition by a federal court is limited to consideration of violations of federal law or the United States Constitution. See 28 U.S.C. § 2254(a) (An application for a writ of habeas corpus will be entertained “only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treatises of the United States.”); Williams v. Taylor, 529 U.S. 362, 379 (2000) (explaining that federal courts have an independent responsibility to interpret federal law); Gilmore v. Taylor, 508 U.S. 333, 342 (1993) (recognizing that instructions containing error of state law do not give rise to federal habeas relief). Neither Miranda nor any other provision of federal law requires a public defender to be immediately available to a suspect during interrogation. See Miranda, 384 U.S. at 474 (noting that police stations are not required to have a “station house lawyer” present at all times to advise prisoners). Thus, to the extent Jackson’s petition alleges violations of protections guaranteed under state law that are more generous than those required under federal law, we may not enforce these state law provisions through habeas relief.
The court elsewhere summarizes the basis under Wisconsin law for immediate access to counsel:
In fact, the detective’s statement about the availability of a public defender did not accurately describe state law. Wisconsin regulations provide that public defenders are available to individuals in custody prior to their being charged on an emergency basis, 24 hours per day including weekends and holidays. WIS. ADMIN. CODE § PD 2.03(2). Moreover, the public defender must have immediate access in person or by phone to any individual held in custody, id. § 2.03(3), and individuals “who indicate at any time that they wish to be represented by a lawyer, and who claim that they are not able to pay in full for a lawyer’s services, shall immediately be permitted to contact the authority for indigency determinations. . . .” WIS. STAT. § 967.06.
(Interrogation ceased once the request was made, but further interaction was initiated by Jackson. This is not, therefore, an Edwards case (once counsel is requested all interrogation must cease unless contact is initiated by suspect). The question, rather, is whether misadvice as to the timing of the consult with counsel invalidates an otherwise knowing and intelligent waiver of rights. See fn. 4.)
Jackson’s more substantial claim is that the detective’s statement, beyond its inaccuracy under state law, clouded his understanding of the Fifth Amendment right recognized in Miranda to have counsel present during interrogation, making his subsequent waiver involuntary. Unfortunately, as the Wisconsin Court of Appeals found, Jackson’s argument runs headlong into the Supreme Court’s decision in Duckworth v. Eagan, 492 U.S. 195 (1989)....

In spite of the many similarities between this case and Duckworth, Jackson argues that the accuracy of the Indiana officer’s statement under state law clearly distinguishes Duckworth from this case. He argues that, unlike the situation before the Court there, in this case the police could have provided counsel, and therefore the detective’s remarks violated Miranda. While the Court in Duckworth certainly noted the accuracy of the officer’s statement under state law, it is far from clear that the Court’s conclusion rested on that fact....

Indeed, at least one other court of appeals has found that a misstatement of law does not, in and of itself, make a Miranda wavier involuntary. In Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002) (en banc), the Fifth Circuit reviewed a habeas petition with a pre-AEDPA lens and held that a detective’s misleading statements did not render a suspect’s waiver involuntary. In that case, after the suspect asked about the availability of a court-appointed lawyer, the detective responded that “[i]t could take as little as a day or as long as a month,” despite the fact that the municipality had a rule that suspects could not be held for more than 72 hours without being charged. Id. at 591.... Although the only definitive source of clearly established federal law under the AEDPA is Supreme Court authority, Williams, 529 U.S. at 379, the determination by one of our sister circuits that a misstatement of state law alone does not vitiate a Miranda waiver certainly makes it more difficult to conclude that the Wisconsin Court of Appeals unreasonably applied Supreme Court authority.

We do not adopt the conclusions of the Fifth Circuit here, nor do we determine whether, in our view, the detective’s statements violated the Fifth Amendment. Instead, our opinion is limited to “the only question that matters under § 2254(d)(1)—whether [the] state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law.” Lockyer, 123 S.Ct. at 1172. Given the similarities between this case and the Supreme Court’s decision in Duckworth, and the lack of clarity regarding the effect of an officer’s misstatement on the voluntariness of a Miranda waiver, we cannot find that the conclusion of the Wisconsin Court of Appeals lies “well outside the boundaries of permissible differences of opinion.” Hardaway, 302 F.3d at 762.

Compare, Bridgers v. Dretke, 5th Cir No. 05-70020, 12/2/05 (for purposes of AEDPA review, state court conclusion that Miranda warning as to right to counsel prior to questioning adequately conveys right to counsel during questioning; circuit split noted).
Particular Issues -- Confessions -- Miranda-waiver, Low-IQ Suspect
Dan Young, Jr., v. Walls, 311 F.3d 846 (7th Cir. 2002)
Issue/Holding: Any defendant competent to stand trial is competent to waive Miranda rights. Young's low IQ (56) didn't render him incompetent. And, his limited ability to reason abstractly didn't impair his ability to waive his rights:
... Miranda is simply beside the point for persons who confess because they don’t think that their words will harm them--the position in which, according to his lawyers, Young found himself following his arrest. Young had enough awareness (the state court found) to understand what a lawyer is and his entitlement to direct the police to stop asking questions. This is all the fifth amendment demands. See Moran v. Burbine, 475 U.S. 412, 421 (1986).
Cited with approval, other cases collected, for idea that "diminished mental capacity alone does not prevent a defendant from validly waiving his or her Miranda rights," Garner v. Mitchell, 6th Cir No. 02-3552, 3/3/09, en banc, overruling panel opinion, 9/11/07 (76 IQ coupled with unrebuuted expert testimony suspect didn't understand right to remain silent showed inability to knowingly and intelligently waive Miranda rights; further: although police misconduct required before a statement is deemed involuntary, same isn't true for finding waiver of rights unknowing and unintelligent). En Banc opinion stresses: "although his IQ level indicates that he was functioning in the borderline range of intelligence, he was not so mentally retarded that officers had reason to believe that he could not understand his rights," and cites with approval Rice v. Cooper, 148 F.3d 747, 750-51 (7th Cir. 1998), for idea that police may not "disregard signs or even hints that an interrogation suspect does not understand."

Particular Issues -- Confrontation

Particular Issues - Confrontation - Witness's Lack of Recall
Donald Cookson v. Schwartz, 08-1811, 2/23/09
Issue/Holding: No violation of confrontation under Crawford due to testifying complainant's inability to recall making statements she allegedly made as recited by other witnesses, given that she "could remember the underlying events described in the hearsay statements.
Particular Issues - Confrontation - Impeachment, Pending Charge
Albert J. Price v. Thurmer, 514 F.3d 729 (2/1/08)
Issue/Holding: Neither state nor federal evidence law permits impeachment with a pending charge, a limitation that doesn't infringe confrontation rights.
Particular Issues -- Confrontation -- Cross-Exmination, Limitation: Immigration Status
Antoine Toliver v. Hulick, No. 05-3712, 12/4/06
Issue: Whether Toliver's right to confrontation was violated by the state judge's refusal to allow cross-examination of the only eyewitness regarding his immigration status, thus preventing Toliver from arguing that the witness was illegally in the country and therefore motivated to curry favor with the prosecution.
Holding: Although "(t)here seems little legitimate reason to have restricted the inquiry and absolutely no reason not to find the answer to the question outside the presence of the jury," given that it is not clear from the record that the witness was in the ocuntry illegally: "The state appellate court finding that the limitation on cross-examination was not error cannot be said to be an unreasonable application of Supreme Court precedent. The information was, at best, marginally relevant."
Particular Issues -- Confrontation -- Preliminary Hearing Testimony
George Owens v. Frank, 7th Cir. Case No. 03-2809, 1/6/05, affirming unpublished opinion
Mr. Owens next argues that he was denied his Sixth Amendment right to confront the witnesses against him when the trial court admitted into evidence the preliminary hearing testimony of Maurice Owens. ... [T]he Court of Appeals of Wisconsin found, and Mr. Owens did not dispute, that the preliminary examination testimony fit within a firmly rooted hearsay exception. Nevertheless, Mr. Owens maintained that the preliminary hearing setting did not provide sufficient opportunity for cross-examination with respect to a witness’ credibility....

... In short, Mr. Owens does not come forward with evidence that the cross-examination was so limited as to deny “ ‘the trier of fact a satisfactory basis for evaluating the truth of the prior statement.’ ” Roberts, 448 U.S. at 65-66 (quoting Green, 399 U.S. at 161). Therefore, we cannot conclude that the state appellate court’s decision was an unreasonable application of Roberts—the clearly established federal law as determined by the United States Supreme Court “at the time his state court conviction became final.” Williams, 529 U.S. at 380.

The court declines (fn. 8) to reach retroactivity of Crawford, noting though that the 10th Circuit "has determined that Crawford should not be applied retroactively to cases on collateral review. See Brown v. Uphoff, 381 F.3d 1219, 1225-26 (10th Cir. 2004)." The court subsequently, however, reached the issue and declined to give Crawford retroactive effect: Edward A. Murillo v. Frank, 04-2202, 4/1/05. Non-retroacivity was subsequently raified, in Whorton v. Bockting, 05-595, 2/28/07.
Particular Issues -- Confrontation -- Hearsay: Statement Made During Interrogation and Social Interest Exception
Edward A. Murillo v. Frank, No. 04-2202, 4/1/05, granting habeas relief in State v. Edward A. Murillo, 2001 WI App 11, 240 Wis. 2d 666, 623 N.W.2d 187
For Murillo: Craig Albee 
Issue/Holding: Murillo's circumstance -- out-of-court, custodial statement to police made by his brother and admitted in evidence against him -- was not meaningfully distinguishable from Lilly v. Virginia, 527 U.S. 116 (1999) (in-custody statement against penal interest violated confrontation; suspect has natural motive to exculpate self and shift blame):
The Court first concluded that declarations against penal interest given during custodial interrogation (as opposed to, say, declarations during and in furtherance of a conspiracy) may be introduced by, but not against, an accused. 527 U.S. at 131-34. This followed, Justice Stevens explained, from many decisions, perhaps most prominently Bruton v. United States, 391 U.S. 123 (1968) ....


Everything the Court said about Mark’s statement in Lilly is true of Luis’s statement too. The portion exculpating the declarant (and inculpating the accused) is not a declaration against penal interest, and at all events declarations made during custodial interrogation cannot be used against an accused. ... Instead of offering “particularized” (i.e., statement specific) guarantees of trustworthiness, Wisconsin relied principally on the social-interest doctrine itself, which is general rather than particularized.

... Wisconsin’s “social interest” exception to the hearsay rule is itself unsupported by any data of which we are aware.... We need not pursue this subject, however. This unusual exception to the hearsay doctrine cannot support the use of confessions and affidavits when the long-established, and better supported, penal-interest exception does not.

The court also held that Crawford v. Washington established a "new" rule, and thus applied pre-Crawford methodology. Also see, Robert Bintz v. Bertrand, No. 04-2682, 4/7/05. For additional discussion of Lilly, et al., see Fulcher v. Motley, 6th Cir no. 03-6216, fn. 11, 4/18/06. It's pretty obvious that a codefendant's statement to the police will be deemed testimonial, see, e.g., State v. Cook, OR SCt No. S49851, 5/11/06, so that the Murillo result should remain the same under Crawford.
Particular Issues -- Confrontation -- Hearsay: Penal Interest Exception -- Accomplice's Non-Custodial Statement
Robert Bintz v. Bertrand, No. 04-2682, 4/7/05
Issue/Holding: Accomplice's self-inculpatory statement did not violate Bintz's right to confrontation: "... David was neither detained by police nor threatened with any prosecution in 1987. In short, David was facing none of the pressures that might give an incentive to shift blame to another person. This differs in all material respects with the situation in Lilly, in which a suspect was taken into custody, asked leading questions in a police interrogation, and threatened with prosecution. ..."
This is a pre-Crawford v. Washington analysis, applying "particularized guarantees of trustworthiness" factors. This testimony would presumably fail under Crawford: David took the 5th and was thus unavailable, but it doesn't appear that there was prior opportunity for cross-examination; and, because David's statement was made to the police, it was plainly "testimonial." Timing is everything, though, and the timing of Bintz's trial and appeal was such that he was unable to avail himself of Crawford.
Particular Issues -- Confrontation -- Hearsay: Penal Interest Exception -- Jailhouse Confession to Cellmate
Robert Bintz v. Bertrand, No. 04-2682, 4/7/05
Issue/Holding: The statement of an accomplice to a cellmate did not violate Bintz's right to confrontation, the court noting: "This court has held that jailhouse confessions to cellmates “are also trustworthy and admissible,” satisfying the requirement of particularized guarantees of trustworthiness. United States v. Westmoreland, 240 F.3d 618, 627-28 (7th Cir. 2001).
This is a pre-Crawford v. Washington analysis, but the result would seemingly remain the same, in that the jailhouse statement doesn't appear to have been "testimonial."
Particular Issues -- Confrontation -- Hearsay: Penal Interest Exception
Jeffrey C. Denny v. Gudmanson, 252 F.3d 896 (7th Cir. 2001), denying habeas relief in State v. Denny, 163 Wis. 2d 352, 471 N.W.2d 606
Issue/Holding: Hearsay statements made by brother, admitted against petitioner, were presumptively unreliable, but posessed sufficient indicia of reliability to support admissibility, because: they
were made in the course of noncustodial conversations with trusted friends and relatives. Furthermore, the statements were not of a blame-shifting nature; rather, they were equally inculpatory. The circumstances under which they were made offer no reason to suspect coercion, ulterior motive, or desire to curry favor with law enforcement authorities. See Robbins, 197 F.3d at 840.
This holding is now contrary to Crawford v. Washington ("Our cases have thus remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine."), which abrogates a case-by-case reliability determination. Thus, under Crawford, the statements in Denny would almost certainly be deemed categorically admissible, and not presumptively unreliable, simply because they were made to family members and not in anticipation of testifying; that is, they seem to have been paradigmatically "non-testimonial" and thus Crawford simply doesn't apply. There remains the possibility, though, that a Roberts analysis survives and thus must be applied when Crawford isn't applicable -- to that extent, Denny remains relevant to post-Crawford litigation. But note that Denny also concluded alternatively that any error was harmless.

Particular Issues -- Confrontation -- Out-of-Court Statement But Declarant Testifies
Dale Basten v. Bertrand, 7th Cir. 03-2245, 11/20/03
(companion case to Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003))
Basten argues that the statement was improperly admitted under an exception to the hearsay rule, as set out in Wis. Stat. § 908.045(4). The statute requires that, to be admissible, the statement must be against the declarant’s interest and the declarant must be unavailable as a witness. The Wisconsin Court of Appeals found that the statement was admissible under § 908.045(4).

Whether it was error to admit the statement under the Wisconsin evidentiary rule is not our concern. Even before AEDPA, the Supreme Court has made clear that federal habeas corpus does not reach errors of state law. In conducting habeas review, “a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991).

What is our concern is whether the admission of the evidence was so unfair as to be a violation of the Due Process Clause or the Sixth Amendment’s Confrontation Clause. We find it was not. Even when presumptively unreliable hearsay is admitted as substantive evidence, there is no violation so long as the declarant testifies as a witness and is subject to cross-examination. California v. Green, 399 U.S. 149 (1970); Kentucky v. Stincer, 482 U.S. 730 (1987); Nelson v. O’Neil, 402 U.S. 622 (1971). As we said in Moore, Kutska testified at trial, thus curing any error under Bruton v. United States, 391 U.S. 123 (1968). See Moore, 2003 WL 22227975.

Note: This result appears to be unassailable in light of Crawford v. Washington, fn. 9: "Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements."
Particular Issues -- Confrontation -- Bruton
Reynold C. Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)
For Moore: James Rebholz
Issue/Holding: The rule of Bruton v. United States, 391 U.S. 123 (1968) ("which prevents the use of a codefendant’s statement inculpating another defendant at a joint trial based on the codefendant’s Sixth Amendment right to confront witnesses") doesn't apply where the declarant testifies at trial.
Particular Issues -- Confrontation -- Motive to Lie
David E. Walker v. Litscher, 7th Cir. No. 05-1009, 8/30/05, denying habeas relief in unpublished opinion of Wis COA
For Walker: Robert R. Henak
Issue/Holding: Denial of opportunity to cross-examine sexual assault complainant on assaults by her fiance, most recently 11 months before Walker's alleged assault of her, didn't deny confrontation, Olden v. Kentucky, 488 U.S. 227 (1988) distinguished. ("We fail to see the connection between the stale report of domestic violence at the hands of her boyfriend and the farfetched, pre-planned set-up of Walker on sexual assault charges.") Court also makes following, general observation:
... (R)ulings on Confrontation Clause issues are very fact-specific and involve case-by-case determinations. At the same time, and perhaps for that very reason, the Confrontation Clause standards are very general, making it difficult to call a state court ruling in this area “objectively unreasonable.” ...
Particular Issues -- Confrontation -- Rape-Shield / Impeachment
Charles A. Dunlap v. Hepp, No. 05-2179, 2/1/06, denying relief in 2002 WI 19
For Dunlap: Nancy Joseph, Brian Fahl, Federal Defender Services of Eastern Wisconsin
To repeat, Dunlap wanted to cross-examine the Child Protective Services investigator Hanson about a statement in her 1989 report that Susan Smith expressed concern about Jamie’s “seductive behavior,” including touching men in the genital area, “humping the family dog,” and masturbation. As we said, the Wisconsin Supreme Court’s focus was on whether the acts the defendant wished to present closely resembled those involved in the present case, a factor which is relevant to the balance which must be struck between the defendant’s rights and the state’s interest in protecting the victim. The court found that the acts were not sufficiently similar, a finding which we simply can’t judge to be unreasonable.


... That Jamie might have been abused on a prior occasion does not mean Dunlap did not abuse her as well on November 7, 1989. ...

The court notes that "Confrontation Clause standards are very general," and further that the more general the rule the greater the leeway the state courts have in administering it.
Particular Issues - Confrontation - Rape-Shield / Impeachment
Jessie L. Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001), granting habeas relief in unpublished opinion of Wis COA
For Redmond: Howard B. Eisenberg
Issue/Holding: Complainant's prior, demonstrably false claim of sexual assault was admissible:
Redmond wanted to bring out her lie on cross- examination in order to show that Heather would lie about a sexual assault in order to get attention, and thus had a motive to accuse him falsely. ...

... The evidence of the false charge of forcible rape was not cumulative of other evidence bearing on Heather's credibility, because none of the other evidence either involved a false charge of being sexually assaulted or furnished a motive for such a charge. ...

The evidence thus was not cumulative, or otherwise peripheral, considering that testimony by Heather was virtually the only evidence of Redmond's guilt that the prosecution had. ... But in concluding that there was a danger of confusion the court committed a fatal analytical mistake. ... Whether or not she had had sex with the alleged rapist was irrelevant, since Redmond was not prepared to try to prove that she had not. ...

And thus the court's ruling, though ostensibly based on the rape-shield statute, derives no support from that statute. The statute protects complaining witnesses in rape cases (including statutory-rape cases) from being questioned about their sexual conduct, but a false charge of rape is not sexual conduct. ...

... But while "generally applicable evidentiary rules limit inquiry into specific instances of conduct through the use of extrinsic evidence and through cross-examination with respect to general credibility attacks, . . . no such limit applies to credibility attacks based upon motive or bias," Quinn v. Haynes, 2000 WL 1784161, at *5 (4th Cir. Dec. 6, 2000)--as in this case.

To similar effect: State v. Alberts, Iowa SCT No. 04-1949, 10/5/06 ("a falsity determination simply means the statements are not 'past sexual behavior' within the meaning of our rape-shield law"), citing State v. Baker, 679 N.W.2d 7 (Iowa 2004) (which itself holds, "Virtually all cases considering the issue have found that false claims of prior sexual conduct do not fall within the coverage of rape-shield laws"; collecting cases). Variant, see Fowler v. Sacramento County, 9th Cir No. 04-15885, 8/31/05 (confrontation denied, albeit under general principles and not rape-shield regime: defense should have been permitted to adduce evidence of prior "unfounded" accusations, because "a jury very well might reasonably have concluded that Lara was hypersensitive to physical contact by adult men and, thus, tended to misinterpret or misperceive the conduct, overreact and then, perhaps unconsciously, exaggerate or embellish in recounting the conduct so as to fit her subjective misinterpretation or misperception").

Compare, Donald Cookson v. Schwartz, 08-1811, 2/23/09 (where no showing prior allegation in fact false, no confrontation violation in limiting cross; court declines to decide whether false allegation is alone enough to establish witness's motive to lie, hence exposing witness to cross on the matter).

Particular Issues -- Confrontation -- Rape Shield Law
Hammer v. Karlen, 342 F.3d 807 (7th Cir. 2003), habeas denied in State v. Edward A. Hammer, 2000 WI 92, 236 Wis. 2d 686, 613 N.W.2d 629
For Hammer: Rex Anderegg
While the cases cited by Mr. Hammer recognize the importance cross-examination and presentation of favorable witnesses may play in securing the rights guaranteed by the Sixth Amendment, see Davis, 415 U.S. at 315; Olden, 488 U.S. at 231; Chambers, 410 U.S. at 294, none establish an absolute right to cross-examination or presentation of favorable witnesses ....

The state supreme court properly identified this rule, see State v. Hammer, 236 Wis. 2d 686, 712-13 (Wis. 2000) (citing Chambers, 410 U.S. 284 and Davis, 415 U.S. 308), and applied it reasonably to determine, inter alia, that the evidence Mr. Hammer wished to present was not highly relevant and that his interest in presenting it was outweighed by the state’s interest in protecting the privacy of sexual assault victims, as articulated in the state’s “rape shield” statute, Wis. Stats. § 972.11. No more was required of the court. See Pack, 147 F.3d at 589 (all the Constitution requires “is that courts . . . give earnest consideration to the possibility that excluding evidence under a rape shield law may interfere unduly with the defendant’s opportunity to present a defense of innocence”). As the state court’s decision did not involve an unreasonable application of Supreme Court precedent,6 the court will deny Mr. Hammer relief with respect to his second claim, as well.

6 In fact, no such precedent exists that the state courts could have applied unreasonably. See Pack, 147 F.3d at 589 (“Indeed, the Supreme Court has yet to hold that any application of a rape-shield statute is inconsistent with the Constitution, making it particularly hard to say that failure to make a constitutional rape-shield law—which is what [the petitioner] needs in order to prevail—is ‘contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States.’”).

Particular Issues -- Counsel

Particular Issues -- Counsel -- Choice of

Particular Issues -- Counsel -- Choice of
Matthew S. Carlson v. Jess, 07-3428, 5/19/08, granting relief, in unpublished COA opinion
For Carlson: Robin Shellow
Issue1: Whether "the trial court’s denial of Carlson’s motion for substitution and a continuance based on an unreasonable factual determination—namely, that communication between Carlson and Kaiser had not completely broken down."
The record reveals absolutely no support for the state trial court’s determination that Carlson’s motion for substitution was based on “differing views of how the case is approached” and “strategic decision[s].” Rather, the record is littered with statements by Kaiser and Carlson himself that communications had completely broken down. ... Based on these statements, the trial judge should have at least probed the matter further by asking Carlson and Kaiser some follow-up questions. Instead, however, the judge simply made a factual finding that “the relationship has [not] broken down to the point where there’s no communication.” The trial court’s statement that Kaiser had “discussed witnesses” with Carlson is belied by Carlson’s statement that he had not yet heard anything from Kaiser on that issue. With nothing in the record to back it up, the trial judge’s finding was clearly unreasonable.
Issue2: Whether the state court's denial of Carlson's motion for substitution of counsel, conditioned on adjournment of trial that the court would not grant, violated his rights.
... The Sixth Amendment secures the right to the assistance of counsel. It also includes the right to select, and be represented by, one’s preferred attorney; thus, trial courts must recognize a presumption in favor of a defendant’s counsel of choice. Wheat v. United States, 486 U.S. 153, 164 (1988). Accordingly, the Sixth Amendment bars a court from denying a defendant the right to retain counsel of his choice arbitrarily or unreasonably. Ford v. Israel, 701 F.2d 689, 692 (7th Cir. 1983). The Fourteenth Amendment’s Due Process Clause also bars a court from denying a defendant’s motion for a continuance arbitrarily or unreasonably. ...

... The court repeatedly cited its calendar as a reason for denial, saying that “it would be months before this case got back on the trial calendar.” But, trial dates open up all the time—for instance, when a defendant decides to plead guilty.5 Even the inconvenience of pushing the trial back a month or so would be easily outweighed by Carlson’s interest in having his counsel of choice properly prepared to defend him against such serious charges.

... Furthermore, Carlson was obviously not seeking to delay the trial unnecessarily. ... Finally, Carlson was not asking for a long continuance. Notably, we do not know how long Ms. Shellow would have needed to prepare because the trial judge never asked her. Apparently, any delay would have been unacceptable to the trial judge. That sort of rigidity can only be characterized as arbitrary. ...

In sum, the trial judge ignored the presumption in favor of Carlson’s counsel of choice and insisted upon expeditiousness for its own sake. The judge made no effort to ascertain the facts and follow up on Carlson’s reasonable justifications for seeking a substitution. The reasons the judge did cite for denying a continuance were weak, and he made no attempt to balance them against the effect of Kaiser’s possible failings and Carlson’s interest in having his attorney of choice defend him against serious charges. Thus, the trial court’s denial of Carlson’s motion for substitution and a continuance was arbitrary and in violation of the Sixth and Fourteenth Amendments.

Particular Issues -- Counsel -- Choice of
Neftaly Rodriguez v. Chandler, 382 F.3d 670 (7th Cir. 2004)
Issue/Holding: State court's disqualification of defendant's counsel of choice (because he represented, on an unrelated civil matter, a dtetective and potential prosecution witness who in the event did not indeed testify) was unreasonable application of controlling law, namely "that a constitutionally founded presumption in favor of a defendant’s choice of counsel can be overcome only by a serious potential for conflict." However, violation of this right is not subject to automatic reversal rule applicable to denial of counsel altogether; rather, prejudice is tested under adverse-effect analysis applicable to conflict of interest cases.
The Supreme Court subsequently held that erroneous rejection of counsel-of-choice is in fact "structural," i.e., subject to automatic reversal, U.S. v. Gonzales-Lopez, 126 S.Ct. 2557 (2006). However, according to Rodriguez II, No. 06-3995, 7/5/07, that case doesn't apply retroactively.

Particular Issues -- Counsel -- IAC
(State court IAC cases may be found

Particular Issues - Counsel - Ineffective Assistance – Guilty Plea
Jesse Watson v. Anglin, 07-3601, 3/30/09
Issue/Holding:: Counsel performed deficiently in misadvising petitioner as to the maximum potential penalty ("The Appellate Court of Illinois found that it was objectively unreasonable for counsel to underestimate the possible sentence his client was facing, and we agree."). However, petitioner must also show prejudice, which in this context means that the misadvice was "a decisive factor" in the decision to reject the State's plea offer. Petitioner can't show prejudice, given state court finding that he would have merely "considered" the offer had he been properly advised; and counsel's affidavit that petitioner "was determined to reject any plea offer."
Particular Issues - Counsel - Ineffective Assistance – Jury Instruction
Jesse Watson v. Anglin, 07-3601, 3/30/09
Issue/Holding:: Failure to object to an instruction that defined a crucial element as "intent to murder" rather than "intent to kill" wasn't prejudicial: not only can it "safely be presumed that the jury understood that murder involves killing," but also the evidence of intent "was considerable."
Particular Issues - Counsel - Ineffective Assistance – Prejudice
Darryl Allen v. Chandler, 07-1403, 2/11/09
Issue/Holding:: State court determination that alleged deficient performance "did not tip the scales unfairly in favor of the state," while semantically distinct from the Strickland test, was nonetheless not contrary to clearly established authority. Nor was the conclusion of no prejudice, based on "overwhelming" evidence of guilt, unreasonable, in that: identification of Allen as the robber, albeit by a single witness, "was not only reliable but very strong"; and, the alleged deficiency was a "short and brief" elicitation of Allen's post-arrest silence that wasn't mentioned during closing arguments. Vigorous dissent stresses, in so many words, that the majority is quite off-base characterizing as overwhleming a single-witness ID case, given all we now know about the infirmities of IDs. The lesson, if there is one: panel composition very much matters. Separately, the court holds that the fact that Allen's first trial resulted in mistrial has no bearing on the analysis:
Each trial is a distinct event with many nuances that transcripts can never fully capture; we refuse to draw any conclusions based on the mere fact that two different events produced two different results. Because the evidence of Allen’s guilt is more than substantial, there is no reason to dwell on his prior mistrial.
Particular Issues - Counsel - Ineffective Assistance – NGI / Competency
Albert J. Price v. Thurmer, 514 F.3d 729 (2/1/08)
Issue/Holding: Counsel's failure to share relevant information with the examining experts on the issues of competency and insanity requires an evidentiary hearing by the district court.
Particular Issues - Counsel - Ineffective Assistance – Deficient Performance: Lack of Familiarity with Vienna Convention on Consular Relations
Johnbull K. Osagiede v. USA, 7th Cir No. 07-1131, 9/9/08
Issue/Holding: Counsel’s ignorance of VCCR Art. 36 rights available to foreign national client was deficient:
Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 and should have acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.” Julian v. Bartley, 495 F.3d 487, 497 (7th Cir. 2007); accord Dixon v. Snyder, 266 F.3d 693, 702 (7th Cir. 2001); Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996); Freeman v. Lane, 962 F.2d 1252, 1258 (7th Cir. 1992). The Government does not contest the fact that it failed to notify Osagiede of his right to contact his consulate. This failure to notify violated Article 36 of the Vienna Convention, as well as federal regulations promulgated to ensure compliance with Article 36. See 5 28 C.F.R. § 50.5. The law was on the books; the violation was clear. Simple computer research would have turned it up.

The Government argues, however, that Article 36 does not create any individual rights that could have been invoked by counsel as a basis for relief. Osagiede’s counsel was not objectively deficient, the Government argues, because any argument she might have raised would be futile. See Rodriguez v. United States, 286 F.3d 972, 985 (7th Cir. 2002). In support of its argument, the Government asserts that no court had ever held that the Vienna Convention created individually enforceable rights in the criminal setting. This is simply incorrect … .

…(T)he Article 36 violation should have rung a bell with a reasonable attorney.

Significant caveats apply (as always! otherwise we’d have much less to do). The crux of this holding is that the VCCR safeguards individual rights, else you’d have a no-harm/no-foul summary affirmance. The 7th was way out in front of the curve on that principle, Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007) (Art. 36 confers individual rights). Because Jogi was decided after Osagiede’s case was litigated in the trial court, it wasn’t determinative on the question of what his attorney should have known. But it certainly shows the 7th’s leanings. And now the court has leaned still further, and determined that even before Jogi, reasonable competence required familiarity with the right to consular assistance. Here’s where it gets interesting, though. Our state courts have taken an entirely different tack, and have held “that the Vienna Convention does not create a private right that a foreign national can enforce in a state criminal proceeding and therefore [he or she] has no standing to assert any remedy pursuant to the Vienna Convention,” State v. Jose Carlos Navarro, 2003 WI App 50, ¶1.

Now what? You’ve got 7th Circuit caselaw distinctly saying that the right is privately enforceable and that therefore counsel must be aware of its potential benefit, so that any failure to assert it is the product of considered strategy. But you’ve also got controlling state caselaw saying that this right is not privately enforceable, and that the defendant therefore doesn’t have standing to assert a violation. Our state courts aren’t (outside of judicial mandate in a specific case) obligated to follow the 7th down this path. Neither Osagiede nor Jogi overrule the holding of Navarro. Technically, then, you might be able to ignore this new development and suffer no consequence. But, of course, that is not the way you want to practice law, nor is it in your clients’ interests. The point to be aware of is that state-court assertion of an Art. 36 violation will require discussion of Navarro (either as a minimalist approach: limiting it to the distinguishable issue of suppressibility of evidence for a “direct” violation; or maximalist: seeking its outright reversal by the supreme court).

Re VCCR and suppression of evidence: here.

Particular Issues - Counsel - Ineffective Assistance - Prejudice: Failure to Adduce Potential Impeachment
Stephen Toliver v. McCaughtry, 7th Cir No. 06-3316, 8/27/08, on habeas review of unpublished Wis COA opinion, 00-2460-CR
For Toliver: Brian P. Mullins, Federal Defender Services
Issue/Holding: Failure to produce two avaialble eyewitnesses who would have undermined the state's theory of intentional aiding and abetting was prejudicial; the state court's analysis to the contrary was unreasonable. (The relief is remand for an evidentiary on whether the failure to rpoduce them was the result of deficient performance.)
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice: Failure to Adduce Evidence Undermining Eyewitness Identification
Donchii Malone v. Walls, 06-3235, 8/18/08
Given the nature of the evidence against Mr. Malone, as well as his counsel’s failures, we are persuaded not only that there is a reasonable probability that the outcome of the trial would have been different had Mr. Malone’s counsel called Villanueva, but also that the state appellate court’s decision to the contrary was an unreasonable one. The state’s case against Mr. Malone was far from iron-clad. His conviction was not supported by any physical evidence; it rested wholly on the testimony of two eyewitnesses: Stewart and Tate. Of the two eyewitnesses, Stewart, a member of a rival gang whose weaknesses as a witness were noted by the trial court, was the only witness to identify Mr. Malone as the shooter. ... Tate, on the other hand, only placed Mr. Malone at the scene; she did not witness the shooting, and, therefore, she could not identify the shooter. ...

Under circumstances similar to the present case, we have held that a defendant was prejudiced by his attorney’s failure to investigate and call potentially exculpatory witnesses. ... Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003) ....

Particular Issues -- Counsel -- Ineffective Assistance -- Deficient Performance: Failure to Adduce Evidence Undermining Eyewitness Identification
Donchii Malone v. Walls, 06-3235, 8/18/08
Issue/Holding: Where the State's case rests on eyewitness testimony and counsel failed to offer available testimony undermining the identification, the absence of "a compelling reason" apparent in the record as to the reason for that failure supports the grant of an evidentiary hearing in the district court on ineffective assistance of counsel.
Particular Issues -- Counsel -- Ineffective Assistance -- Direct Examination of Defendant-Witness -- Prejudice Analysis -- "Constructive Denial" Requires Physical Absence
Derryle S. McDowell v. Kingston, 7th Cir No. 06-3288, 8/15/07, denying habeas relief in 2004 WI 70
Issue1: Whether counsel's deficient performance in the manner of conducting his examination of defendant's testimony (by abruptly shifting from Q & A to narrative) is subject to traditional prejudice analysis or to automatic reversal.
The petitioner’s first argument—that we should presume prejudice because he was actually or constructively denied counsel at a critical stage of the litigation—fails to satisfy the requirements of Cronic’s first category. The Supreme Court has consistently limited the presumption of prejudice to cases where counsel is physically absent at a critical stage.2 ... Here, counsel was physically present at all stages of the litigation, including during McDowell’s testimony, and therefore, we cannot hold that McDowell was actually denied counsel.
2 There are some cases, typically involving sleeping or unconscious lawyers, where courts have presumed prejudice even though counsel was technically physically present. See Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001); Tippins v. Walker, 77 F.3d 682, 686 (2d Cir. 1996); Javor v. United States, 724 F.2d 831, 833 (9th Cir. 1984). But, the alleged “absence” of Attorney Langford is distinguishable from these cases. Arguments concerning constructive denial of counsel are best considered under Cronic’s second category—where counsel has “entirely failed to subject the prosecution’s case to meaningful adversarial testing.”
Issue/Holding2: Nor did counsel entirely fail to subject the prosecution's case to meaningful adversarial testing, by cross-eaxmining witnesses, giving an opening statement, prepping the defendant before he took the stand, etc.: "an isolated mistake, like the one found here, does not constitute a 'complete failure to subject the prosecution’s case to adversarial testing,' nor does it render an attorney 'constructively absent' from the proceedings."
Particular Issues -- Counsel -- Ineffective Assistance -- Conflict of Interest
Derryle S. McDowell v. Kingston, 7th Cir No. 06-3288, 8/15/07, denying habeas relief in 2004 WI 70
... A “conflict of interest” is defined as a conflict between a duty of loyalty to a client and a private interest or a conflict between a duty of loyalty owed to one client and the duty owed to another in a multiple representation situation as in Cuyler. See Black’s Law Dictionary 295 (7th ed. 1999). But, the conflict alleged in the present case is not the kind of conflict at issue in Cuyler. Rather, the alleged conflict Attorney Langford experienced between his duty of loyalty to McDowell and his “duty of adhering to the pressures of that established by the note” is better described as a problem of determining the appropriate ethical course. In Nix v. Whiteside, 475 U.S. 157, 176 (1986), which McDowell also cites but fails to cite in full, the Court specifically noted that a presumption of prejudice is not appropriate for conflicts like the one alleged in the present case, explaining that the “ ‘conflict’ . . . imposed on the attorney by the client’s proposal to commit the crime of fabricating testimony . . . is not remotely the kind of conflict of interests dealt with in Cuyler v. Sullivan.” ...
Particular Issues - Counsel - Ineffective Assistance - Courtroom Restraint of Defendant
Matthew E. Wrinkles v. Buss, No. 05-2747, 8/12/08
Issue/Holding: Faced with the choice of having his client restrained in the courtroom by shackles ot stun belt, counsel "chose" the latter; his failure to object to the latter was deficient:
... The trial court had given Wrinkles’s attorneys the choice of wearing shackles or the stun belt at trial. Because they thought that “the chance of the jury seeing the shackles was fairly high,” Wrinkles’s attorneys chose the stun belt. Id. The supreme court characterized this as a “strategic decision” because, unlike shackles, Wrinkles’s attorneys “thought the jurors would not be able to see” the belt. Id. In addition, because the trial court would have overruled any objection to the stun belt—per its stated restraint “policy”—Wrinkles could not demonstrate that his trial would have been any different if his attorneys had objected. Id. ... We disagree.

At the time of Wrinkles’s trial, it was well established that a trial court could not restrain a criminal defendant absent a particularized justification. ...


In light of the wealth of caselaw prohibiting the trial court’s blanket policy, by standing mute, Wrinkles’s counsel failed to provide adequate legal assistance. Failing to object when a trial court presents two impermissible options—shackles or a stun belt, neither supported by individualized justification—cannot be an objectively reasonable tack under prevailing norms of professional behavior. ... Counsels’ choice between two unconstitutional options is not a strategic choice worth deference. Accordingly, the Indiana Supreme Court unreasonably applied Strickland’s first prong.

But, given the state court's finding that the jurors couldn't see the belt, the deficiency wasn't prejudicial.
Particular Issues - Counsel - Ineffective Assistance - Guilty Plea - Incorrect Advice as to Potential Maximum Exposure
David Julian v. Bartley, 7th Cir No. 05-3585, 7/25/07
... A reasonably competent attorney will attempt to learn all of the facts of the case, make an estimate of the likely sentence, and communicate the result of that analysis before allowing the client to plead guilty. ... The attorney need not be 100% correct in her prediction of the consequences of pleading guilty and of going to trial, as a mistake, in and of itself is not proof of deficient performance. ... Consequently, although a mistaken prediction is not sufficient to show deficient performance, (Barnes, 83 F.3d at 940), in some cases it may be such a gross mischaracterization that it provides a “strong indication of constitutionally deficient performance.” ...

... What Sheehan told Julian about a thirtyyear maximum for his sentence was clearly wrong and therefore objectively unreasonable. In fact one would be hard pressed to find a lawyer who guaranteed a client anything. Guarantees in the law are hard to come by, particularly in the topsy-turvy world of sentencing. ...

Though informed correctly by the trial court that he could get up to 60 years, Julian had been told by his attorney that, under the then-newly released Apprendi, he couldn't get more than 30. Counsel mis-read Apprendi, and Julian got 40.
... In this case, as in Moore, we are faced with several pieces of evidence indicating that, but for the ill-advice, Julian would have taken the plea. First, as we just noted, Julian testified that he would not have gone to trial but for the misinformation. Second, Julian, like Moore, altered course at the last minute just after receiving the erroneous information. Third, the information provided by Julian’s attorney grossly misstated the risk of going to trial. Thus just as in Moore, we have testimonial evidence, a history of the plea discussions, and the type of mis-information likely to impact a plea. Id. at 243.
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice: Sexual Assault
Cleophus Amerson v. Farrey, 7th Cir No. 06-2971, 7/5/05
Issue/Holding: Medical evidence "demonstrating that Tawanda had recently experienced sexual trauma" rendered non-prejudicial any possible deficiency in failng to show that someone had "tried to coach or threaten Tawanda to accuse Anderson."
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice: NGI Defense
Christopher M. Stevens v. McBride, 7th Cir No. 05-1442, 6/18/07
Considering the evidence in the record of Stevens’s extended efforts to kill Snider and later to cover up the murder, the Indiana Supreme Court’s conclusion that no jury could conclude that Stevens did not appreciate the wrongfulness of his conduct at the time of the murder was not implausible. Although we think that there is a possibility that a jury presented with the expert testimony of Dr. Coons and Dr. Kaplan might have concluded that Stevens was legally insane at the time of the killing based on a dissociation theory, this possibility does not render the Indiana Supreme Court’s contrary conclusion unreasonable. ...
Particular Issues -- Counsel -- Ineffective Assistance -- Deficient Performance: Choice of Expert
Christopher M. Stevens v. McBride, 7th Cir No. 05-1442, 6/18/07
... The problem here related first to the methods that Dr. Lennon used and his idiosyncratic view of mental disorders, and even more importantly, to the fact that Dr. Lennon’s views favored the prosecution. ... In light of the stakes in the case and the evidence the defense had to confront, it would not have been reasonable for defense counsel to rely on Dr. Lennon’s evaluation of Stevens based only on his credentials.
Particular Issues -- Counsel -- Ineffective Assistance -- Cronic Exception to Prejudice Requirement -- Complete Failure to Advocate
Keith Miller v. Martin, No. 05-3978, 3/15/07
Issue/Holding: Although the Cronic exception to the requirement of showing prejudice is "exceedingly narrow," it does apply (as here, relative to sentencing) where counsel completely fails to advocate in favor of the defendant:
In this case, McShane’s advocacy at sentencing was so non-existent as to fall within even a very narrow exception. Other than orally moving for a new trial and explaining several times that neither he nor Miller would participate in the proceedings, McShane said nothing throughout the sentencing hearing. By his own admission, he did not offer a shred of mitigating evidence, object to (or consult with his client about) errors in the PSR, or even lobby for a sentence lower than the one urged by the State. In his own words, he “did nothing.” McShane’s performance was therefore even more lacking than that of the attorney in Bell, who made a brief opening statement asking for mercy, cross-examined a witness for the State, highlighted his client’s distinguished military service, and objected to the introduction of photographs of the victims. Bell, 535 U.S. at 708; see Theodore, 468 F.3d at 56-57.
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice -- Eyewitness ID vs. Alibi
Christopher Raygoza v. Hulick, 7th Cir No. 05-2340, 1/25/07
Issue/Holding: Conclusion of prejudice from deficient failure to produce alibi witnesses:
... The State’s case against Raygoza was not particularly strong. The only evidence apart from the suppressed confession linking him to the crime was eyewitness identification from rival gang members John Ribota, Hugo Munoz, and Leo Dorado, and a passerby who did not see the shooter’s face but was able to give a general description of the clothing the perpetrators were wearing as they fled from the pizzeria. (As we noted recently, social science research has revealed serious problems with eyewitness testimony from a stranger, when it is based only on a fleeting glance. See United States v. Brown, 2006 WL 3720245, *1- 2 (7th Cir. Dec. 19, 2006). We do not know here whether the shooter was a stranger or Raygoza; the witnesses, however, were nothing like the trained law enforcement officers whose identification we found reliable in Brown.) There was nothing so distinctive about Raygoza’s clothing to allow the witnesses to rule out countless other suspects. On the other side, Raygoza’s alibi witnesses included both family members and unrelated people; their stories were corroborated by telephone records and train tickets. Obviously, a trier of fact approaching the case with fresh eyes might choose to believe the eyewitnesses and to reject the alibi evidence, but this trier of fact never had the chance to do so. This undermines our confidence in the outcome of the proceedings so seriously that we conclude that there is a reasonable probability that the result would have been different had Raygoza’s attorney presented the testimony of all or most of his alibi witnesses.
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice -- Cumulative Effect of Individual Deficiencies
Warren Goodman v. Bertrand, 7th Cir. No. 04-3946, 10/31/06, granting relief on review of unpublished opinion
For Goodman: Robert R. Henak
However, the cumulative effect of trial counsel’s errors sufficiently undermines our confidence in the outcome of the proceeding. Rather than evaluating each error in isolation, as did the Wisconsin Court of Appeals, the pattern of counsel’s deficiencies must be considered in their totality. Washington, 219 F.3d at 634-35 (“Evaluated individually, these errors . . . may not have been prejudicial to Washington, but we must assess ‘the totality of the omitted evidence’ under Strickland rather than the individual errors.”). In weighing each error individually, the Wisconsin Court of Appeals overlooked a pattern of ineffective assistance and unreasonably applied Strickland.


... While each of these errors considered in isolation may not have been prejudicial to Goodman, viewed in their totality, they create a clear pattern of ineffective assistance, the existence of which “l[ies] well outside the boundaries of permissible differences of opinion.” Hardaway, 302 F.3d at 762.

The court goes on to stress that deficient failure to adduce a favorable "disinterested eyewitness was especially crucial where the State's witnesses included accomplices whose "credibility is questionable, given their incentive to curry favor with the government." The other errors, which the court apparently takes as too obvious to support discussion involved exposing Goodman to otherwise inadmissible impeachment with the nature of his prior convictions, failing to request a limiting instruction regarding threats against prosecution witnesses, and failing to object to misstatements in the closing argument.
Particular Issues -- Counsel -- Ineffective Assistance -- Deficient Performance: Failure to Interview Witnesses
Leslie Stanley v. Bartley, 465 F.3d 810 (7th Cir. 2006)
Issue/Holding: Counsel performed deficiently by failing to interview prospective witnesses, in preference to relying solely on their pretrial statements to the police:
... His trial strategy, he explained in the postconviction proceedings, was to listen to the witnesses’ direct testimony and cross-examine them regarding any discrepancies between that testimony and their pretrial statements that were harmful to his client.

... The state does not even bother to defend the ruling that the lawyer provided minimally competent representation. To fail to interview any witnesses or prospective witnesses was a shocking dereliction of professional duty in a case in which the state’s evidence, though sufficient to convict the defendant of murder beyond a reasonable doubt, was far from compelling. ...

The court, intriguingly, goes on to say that the state court's credibility-rejection of the omitted witnesses' post-conviction testimony is irrelevant: "For the issue is not whether Stanley is innocent, but whether if he had had a competent lawyer he would have had a reasonable chance (it needn’t be a 50 percent or greater chance, Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001)) of being acquitted ...." On othe other hand, it was a relevant factual question whether the witnesses would have told the lawyer the same thing before trial that they testified to at the postconviction hearing; but the state court made no findings on that issue.

Cited with approval, result adopted, in Christopher Raygoza v. Hulick, 7th Cir No. 05-2340, 1/25/07 ("a lawyer’s failure to interview and call substantially all of the available alibi witnesses resulted in a performance that did not meet the minimum standard guaranteed by the Sixth Amendment"); see also Ramonez v. Berhuis, 6th Cir No. 06-1852, 6/18/07 (failure to investigate witnesses to crime held deficient, court forcefully noting: "effective counsel must develop trial strategy in the true sense--not what bears a false label of 'strategy'--based on what investigation reveals witnesses will actually testify to, not based on what counsel guesses they might say in the absence of a full investigation."

Distinguished: Ronald D. Williams v. Lemmon, No. 06-3271, 3/4/09 (no per se rule counsel "always must interview persons who were near the crime in order to learn whether they are in fact eyewitnesses, whether or not they have talked to the police"; counsel enttitled to rely on police interview of potential witness to conclude he had nothing useful). Also: "Stanley's lawyer did nothing for him," while Williams' "did considerable preparation before trial." In brief: "Because the Supreme Court has not established such a per se rule we do not have a single 'egregious' omission that spoils what was otherwise a competent defense."

Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice -- Failure to Object to (Non-Material) Breach of Plea Bargain
David L. Hartjes v. Endicott, 7th Cir. No. 05-1963, 8/8/06, denying relief in unpublished opinion
For Hartjes: Mark D. Richards
Issue/Holding: Failure to object to alleged breach of plea bargain wasn't prejudicial, where the state court's conclusion that any breach was merely technical was neither incorrect nor unreasonable:
Once the uncharged offenses were before the court, the only question is whether the reference to them as read in, rather than uncharged and unproven, matters. We acknowledge that this is not a trivial difference: it reflects the line between allegations that are admitted and those that are not. It is troubling that the prosecutor erred about the status of the unproven offenses and that once Hartjes’s counsel finally spoke up, the prosecutor never corrected his position. See Knox, 570 N.W.2d at 600-01; State v. Bowers, 696 N.W.2d 255, 259-60 (Wis. App. 2005). Nevertheless, as the Wisconsin court stressed, any mistake about Hartjes’s position on these charges was clarified later in the hearing by his attorney’s statement to the court that Hartjes “absolutely denies any sort of sexual activity with any of his other children or any other child, for that matter.” Bearing in mind the Supreme Court’s repeated insistence that federal courts give the benefit of the doubt to state courts in these situations, we conclude that the Wisconsin Court of Appeals’s ruling that “[n]o material and substantial breach of a plea agreement occurs when the prosecutor’s misstatement is promptly corrected and the mistake does not taint the entire sentencing proceeding” was not unreasonable.
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice -- Review of State Court
Joseph Eckstein v. Kingston, 7th Cir. No. 05-2929, 8/16/06, denying relief on review of unpublished opinion
For Eckstein: Robert R. Henak
Issue/Holding: State court's references to "reliability" of trial result, in course of analyzing petitioner's ineffective assistance claim for prejudice, were not inconsistent with Strickland,
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice -- Motion to Suppress
Dennis Thompson, Jr. v. Battaglia, 7th Cir. No. 04-3110, 8/14/06
Thompson also contends that his counsel was ineffective for failing to move to suppress his confession as involuntary. Since “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” Strickland, 466 U.S. at 690, when a habeas corpus petitioner such as Thompson claims that his lawyer’s failure to make a motion to suppress was ineffective, he must “prove the motion [would have been] meritorious.” United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005). The thrust of Thompson’s suppression argument is that his confession was involuntary because it was the product of the same mental distress that led to the shootings. This argument fails as a matter of law because “a defendant’s mental condition, by itself and apart from its relation to official coercion,” cannot lead to a finding that a confession is involuntary. Colorado v. Connelly, 479 U.S. 157, 164 (1986). Although Thompson argues weakly that the officers coerced him to confess through such tactics as restricting his access to the bathroom and prohibiting him from contacting his grandmother during questioning, neither of these allegations are sufficient to prove that his will was overborne by the police. This theory, too, is inadequate to show that Thompson’s Sixth Amendment right to the effective assistance of counsel was denied.
But where the conviction is plea-based, there is authority for a different showing, that had a reasonable person known about the grounds for suppression he or she wold have been "plausibly motivated" not to plead guilty, U.S. v. McTiernan, 9th Cir No. 07-50430, 10/21/08.
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice -- "Doomed Line of Inquiry": State Court Determination that Different Strategy Would Not Have Altered Result
Dennis Thompson, Jr. v. Battaglia, 7th Cir. No. 04-3110, 8/14/06
Issue/Holding: The state court's determination that counsel's failure to adduce evidence of petitioner's mental state would not have changed the result because he could not, as a matter of state law, demonstrate sufficient provocation to reduce the degree of homicide, is binding on 2254 review:
Thus, even if a mental examination would have shown that Thompson was angry and distraught at the time of the killings, such a showing would have been insufficient to reduce the charges against Thompson to second-degree murder. An attorney is not ineffective for failing to pursue a doomed line of inquiry, such as evidence that is legally insufficient to support an argument. See Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996); see also King v. Kemna, 266 F.3d 816, 824-25 (8th Cir. 2001) (en banc). On these facts, there was simply nothing Thompson’s counsel could have done to prove adequate provocation to merit a seconddegree murder charge. His decision not to order a mental health exam therefore did not constitute deficient performance. A potentially more serious question is whether counsel was ineffective for pursuing the second-degree murder theory in the first place—a strategy that required him to concede that Thompson committed the killings. Thompson, however, has never raised this theory and thus has forfeited it by now. Moreover, even if he had pursued it, the fact that the evidence, which included Thompson’s properly admitted confession, was overwhelming shows that he could not prove prejudice.
Particular Issues -- Counsel -- Ineffective Assistance -- Jury Instruction: Lesser Included Offense
Jarret M. Adams v. Bertrand, 7th Cir. No. 05-1573, 6/30/06, affirming in part unpublished opinion
For Adams: Keith A. Findley
Issue/Holding: Failure to request a lesser offense instruction (3rd degree sexual assault) wasn't defeicient performance:
Fiske did not overstep the bounds of professional competence in this respect. According to Fiske’s testimony during a post-conviction proceeding, he was aware of the lesser included offense of third-degree sexual assault, and he understood its constituent elements, including the lack of a force requirement. Fiske, however, decided that allowing the main offense to stand on its own would make it more difficult for the government to prove, given the case’s weaknesses. He chose to bring the lack of evidence of force into clear view, which he believed would compel the jury to acquit on the second-degree charges. Fiske discussed this strategy with his client, and it comported with Adams’s claims and overall defense— complete innocence of anything other than consensual sex. Fiske believed that the inclusion of a lesser count instruction would look like grasping at straws given this theory of innocence.
Particular Issues -- Counsel -- Ineffective Assistance -- Failure to Investigate: Eyewitness
Jarret M. Adams v. Bertrand, 7th Cir. No. 05-1573, 6/30/06, reversing in part unpublished opinion
Issue/Holding: Failure to investigate a potentially crucial eyewitness (who had testified at the separate trial of the codefendant, resulting in hung jury, was both deficient and prejudicial.
Particular Issues -- Counsel -- Ineffective Assistance -- Standby Counsel
Robert Simpson v. Battaglia, 7th Cir No. 04-3044, 8/11/06
Issue/Holding: "... the inadequacy of standby counsel's performance, without the defendant's relinquishment of his Faretta right, cannot give rise to an ineffective assistance of counsel claim under the Sixth Amendment."
Particular Issues -- Counsel -- Ineffective Assistance -- Denial of Counsel
Anthony D. Davis v. VanNatta, 7th Cir No. 04-2349, 2/9/06
Regarding his representation at trial, even though Borges arguably abandoned Davis, Zook continued to serve as counsel. As the evidentiary hearing before the state trial court demonstrates, Zook was an experienced public defender who was familiar with the officer and drug analysts who testified for the prosecution and with Davis’s case. Zook’s contact with Davis began almost two years before trial, at the bond reduction hearing. Zook had visited Davis and, as trial approached, had filed a motion regarding a potential witness. When the judge asked Zook if he felt “confident to go ahead” on the morning of trial, he answered affirmatively. Although he had not planned on beginning trial that day, the circumstances were not so extraordinary that Zook’s efforts constituted a “denial” of counsel; Zook did not “entirely fail to subject the prosecution’s case to meaningful adversarial testing.” Id. Furthermore, the circumstances were not so extraordinary that a competent attorney familiar with the case and the witnesses would be unable to perform effectively. Thus, the facts of this case are not within the ambit of Cronic. Most critically, Davis consented to proceeding with Zook on the day of trial. ...
Particular Issues -- Counsel -- Ineffective Assistance -- Remote Appearance by Counsel -- No "Clearly Established Federal Law"
Wright v. Joseph L. Van Patten, USSC No. 07-212, 1/7/08
Prior history: Joseph Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), reinstated, No. 04-1276, 6/29/07, on remand from the Supreme Court "for further consideration in light of Carey v. Musladin, 549 U. S. ___ (2006)"; on habeas review of, unpublished opinion of Wis COA
For Van Patten: Linda T. Coberly
Our precedents do not clearly hold that counsel’s participation by speaker phone should be treated as a ‘complete denial of counsel,’ on par with total absence. … Because our cases give no clear answer to the question presented, let alone one in Van Patten’s favor, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’ ” Musladin, 549 U. S.,at ___ (slip op., at 6) (quoting 28 U. S. C. §2254(d)(1)). Under the explicit terms of §2254(d)(1), therefore, relief is unauthorized.
The 7th Circuit had held that counsel's appearance by speaker phone at a plea proceeding was tantamount to denial of counsel, hence was tantamount to denial of counsel altogether. ("Physical presence is necessary not only so that counsel can keep an eye on the client and the prosecutor, but so the court can keep an eye on counsel. ... Because the physical absence of counsel from a hearing where a defendant gives up his most valuable constitutional rights and admits his guilt to a serious charge is a structural defect, the district court erred in finding that the error could be analyzed under a harmless standard.") The Supreme Court reversal of this holding was not on the merits but, rather, on the procedural ground that in the absence of controlling authority by the Court on this precise issue a habeas court lacks authority to review it. The state court opinion held that remote appearance by counsel at a guilty plea proceeding violates § 967.08, but was harmless error. However, the decision wasn't published, and therefore isn't binding. Net outcome: the issue will have to be raised in state court (on direct appeal, most likely) and if relief is denied the remedy will be limited to certiorari to the Supreme Court. The narrow question is whether counsel's "remote" appearance is equivalent to denial of representation, something that isn't susceptible to harmless error analysis because it is a "structural" defect.

On a different but interesting and somewhat related question: where counsel's deficiency was failure to preserve error that, if preserved, would be structural, see Purvis v. Crosby, 3rd Cir No. 04-14913, 6/6/06 (prejudice analysis on IAC claim pretermitted only in 3 discrete circumstances: denial of counsel; state interference with counsel's assistance; conflict of interest); disagreed with, Owens v. U.S., 1st Cir No. 05-1784, fn. 14, 4/12/07.

What about constraining the defendant to appear remotely: the concerns expressed by the 7th Circuit with regard to counsel's absence from the defendant's side apply equally when it is counsel who is in court and the defendant on the other end of a fiber optics line.

Compare Wilkins v. Timmerman-Cooper, 6th Cir No. 07-3339, 1/14/08 (use of videoconferencing at parole revocation hearing didn't violate 5th or 6th amendments, at least within meaning of AEDPA).

Particular Issues -- Counsel -- Ineffective Assistance -- Appellate Counsel
Alfred Martin v. Evans, 7th Cir. No. 03-2228, 9/27/04
An appellate counsel’s performance is deficient if he or she fails to argue an issue that is both obvious and clearly stronger than the issues raised. Lee v. Davis, 328 F.3d 896, 900-01 (7th Cir. 2003). However, counsel is not required to raise every non-frivolous issue on appeal. Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996). There is a strong presumption that counsel’s performance is reasonable and this presumption has particular force when the ineffective assistance claim is based solely on the trial court record. Yarborough v. Gentry, 540 U.S. 1 (2003). Martin argues that his appellate counsel rendered ineffective assistance in not alleging various instances of trial counsel’s ineffectiveness.
In Mason, appellate counsel's failure to pursue a preserved hearsay objection that had "considerable substance" under state law was deficient; "the omitted hearsay argument was at least as strong as one of the arguments that was raised, and much, much stronger than the other." The remedy was "a new appeal in which he may raise the hearsay argument omitted from his original direct appeal or, in the alternative, Mason is granted a new trial." Mason, it should be noted, is pre-AEDPA (see fn. 1) but the cited points appear to remain relevant under the AEDPA regime, given Martin's explicit reliance. For his part, Martin's multiple claims were rejected as meritless, for fact-specific reasons.

Alonzo Suggs v. U.S , No. 06-2220, 1/16/08 ("Only if an ignored issue is “clearly stronger” than the arguments raised on appeal will the attorney’s performance be considered constitutionally deficient (thereby satisfying the first prong of the Strickland test)".). For statement of a test for ineffective assistance of appellate counsel that is seemingly more refined but probably the same in terms of result, see Burton v. Warden, 6th Cir. No. 02-2489, 12/6/04, identifying "eleven factors to be considered." More recent exposition: Franklin v. Anderson, 6th Cir No. 03-3636, 1/9/06.

Particular Issues -- Counsel -- Ineffective Assistance -- Lesser Offense
Conner v. McBride, 7th Cir. No. 03-1951, 7/20/04
Issue/Holding: The state "trial court would have been legally obligated to ... instruct the jury" on the lesser offense of "sudden heat" manslaughter, had such an instruction been requested. "Therefore, counsels’ failure to do so was deficient, Conner met his burden with respect to Strickland’s first requirement, and the Indiana Supreme Court’s contrary determination is objectively unreasonable." (But, given the "overwhelming evidence," Conner can't demonstrate that the jury would have convicted him of the lesser offense, and therefore can't satisfy his burden of showing prejudice.)
The 7th Circuit, it should be noted, subsequently stressed that failure to submit a lesser offense instruction generally doesn't raise a constitutional question, Latosha Armstead v. Frank, 7th Cir. No. 03-3980, 9/8/04. But that is distinct from whether counsel's deficient failure to secure a lesser-offense instruction was prejudicial. It is a truism that "the constitutional right at stake here is the right to the effective assistance of counsel ..., and in that context we may consider the state, as well as the federal issues that the petitioner's counsel did not pursue," Mason v. Hanks, 97 F.3d 887 (7th Cir. 1996). To take a slightly different example: a fourth amendment issue isn't (typically) cognizable on habeas, but can be reviewed in the context of ineffective assistance, for reasons discussed in Anthony Owens v. U.S., 7th Cir. No. 03-1507, 10/19/04; in brief: prejudice means "being convicted when one would have been acquitted, or at least would have had a good shot at acquittal, had one been competently represented." That is equally true, relative to a lesser offense instruction, with the important caveat that state law has something to say on this subject, and with that in mind, Conner's very cursory treatment of prejudice is unsatisfactory:
... In short, Conner failed to demonstrate that the jury would not have convicted him of murder even if counsel had proffered a “sudden heat” manslaughter instruction and if the trial court had given the instruction in its charge to the jury. The prosecution put forth overwhelming evidence showing that Moore’s (sic? Conner's) rationality and self-preservation impulse were not overcome by emotion on the day of the killings. ...
Here is the problem: under long-established Wisconsin law, erroneous failure to give a requested lesser offense instruction is essentially "structural" error, that is, error that necessarily requires a new trial. See, e.g., State v. Mendoza, 80 Wis. 2d 122, 155-56, 258 N.W.2d 260 (1977). Thus, under Wisconsin law, counsel's deficient failure to secure a lesser-verdict option would necessarily be prejudicial. Indiana (Conner's state) probably operates differently -- as does, for example, Florida, see Sanders v. State, FL No. SC03-649, 10/12/06 (counsel's failure to trigger jury's "pardon power" via request for less offense verdict not prejudicial because under Florida law "(t)his 'pardon power' allows the jury to acquit a defendant of a greater offense and convict him or her of a lesser one even though the evidence supports both crimes." Needless to say, that is not the principle animating lesser offense instructions in Wisconsin. In any event, it does not appear that the court dealt with prejudice in the sense that as a matter of state law the underlying issue would have required relief but for counsel's deficient performance. (UPDATE: Perhaps some rhetorical device other than "stuctural" should be used -- see, e.g., Purvis v. Crosby, 3rd Cir No. 04-14913, 6/6/06 (prejudice analysis on IAC claim pretermitted only in 3 discrete circumstances: denial of counsel; state interference with counsel's assistance; conflict of interest); disagreed with, however , Owens v. U.S., 1st Cir No. 05-1784, fn. 14, 4/12/07.)
Particular Issues -- Counsel -- Ineffective Assistance -- Counsel's Tactical Decision-Making: Scrutiny of, in General
United States ex rel. Hampton v. Leibach, 347 F.3d 219, 246 (7th Cir. 2003).
In any case, an attorney’s decisions are not immune from examination simply because they are deemed tactical. Miller, 255 F.3d at 458; Crisp, 743 F.2d at 584. Strickland itself makes clear that “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 466 U.S. at 690-91, 104 S. Ct. at 2066 (emphasis ours). Rodgon’s decision not to call exculpatory eyewitnesses in Hampton’s defense—if it was a decision at all—was necessarily one made after an incomplete investigation, for Rodgon never spoke with such witnesses to find out what they had to say. Only if it was objectively reasonable for Rodgon to self-limit his investigation in this way may his “decision” not to present exculpatory eyewitnesses itself be considered reasonable. Ibid.; see also Montgomery, 846 F.2d at 413; Crisp, 743 F.2d at 584. As we conclude below, given the circumstances confronting Rodgon, it was not reasonable for Rodgon to believe that it was unnecessary to identify and interview potentially exculpatory eyewitnesses to the events underlying the charges against Hampton. Eyewitness testimony was the
For a refined approach, see Thomas v. Varner, 3rd Cir No. 04-2856, 1/18/06:
Our review reveals a tiered structure with respect to Strickland’s strategic presumptions. At first, the presumption is that counsel’s conduct might have been part of a sound strategy. The defendant can rebut this “weak” presumption by showing either that the conduct was not, in fact, part of a strategy or by 7 showing that the strategy employed was unsound. ... 1987). In cases in which the record does not explicitly disclose trial counsel’s actual strategy or lack thereof (either due to lack of diligence on the part of the petitioner or due to the unavailability of counsel), the presumption may only be rebutted through a showing that no sound strategy posited by the Commonwealth could have supported the conduct. ... However, if the Commonwealth can show that counsel actually pursued an informed strategy (one decided upon after a thorough investigation of the relevant law and facts), the “weak” presumption becomes a “strong” presumption, which is “virtually unchallengeable.” ...
7We believe that an inquiry into whether counsel actually 7 had some strategy is permissible. Cf. United States v. McCoy, 410 F.3d 124, 135 (3d Cir. 2005) (stating, in a 28 U.S.C. § 2255 case, that “[w]ithout the opportunity to evaluate the rationale given by trial counsel, the issue of possible ineffectiveness cannot be conclusively determined.”). Otherwise, incompetency of defense counsel could be rewarded by ingenuity on the part of a State’s attorneys in supplying hypothetical strategies to explain defense counsel’s uninformed prejudicial oversights.
See also, e.g., Ramonez v. Berghuis, 6th Cir No. 06-1852, 6/18/07 ("In sum, the point is this: Constitutionally effective counsel must develop trial strategy in the true sense--not what bears a false label of 'strategy'--based on what investigation reveals witnesses will actually testify to, not based on what counsel guesses they might say in the absence of a full investigation.").
Particular Issues -- Counsel -- Ineffective Assistance -- Evidence -- Failure to Object: Comment on Exercise of Rights, Alleged Consciousness of Guilt
Russell Martin v. Grosshans, 7th Cir No 04-4247, 9/15/05, granting habeas relief, in unpublished decision of Wis COA
For Martin: Robert R. Henak
Issue/Holding: Failure to object to testimony, which amounted to irrelevant, impermissible comments on defendant's supposed consciousness of guilt and exercise of constitutional rights, established deficient performance.
Particular Issues -- Counsel -- Ineffective Assistance -- Evidence -- Failure to Object: Inflammatory Closing Argument
Russell Martin v. Grosshans, 7th Cir No 04-4247, 9/15/05, granting habeas relief, in unpublished decision of Wis COA
Issue/Holding: Failure to object to inflammatory closing argument (likening defendant to Jeffrey Dahmer) was deficient.
Compare Spisak v. Hudson, 6th Cir No. 03-4034, 4/11/08 (defense counsel's closing argument, which "demonized" defendant, ineffective), reinstating 465 F.3d 684.
Particular Issues -- Counsel -- Ineffective Assistance -- Examination of Witness / Presentation of Evidence -- Introducing Otherwise Inadmissible Evidence
Linnell Harding v. Sternes, No. 03-2672, 8/23/04
During cross-examination, the prosecution introduced the fact that Mr. Harding had given the police a false name. In the questionable trial strategy at issue here, Mr. Harding’s counsel then tried to explain to the jury why Mr. Harding had given the police a false name and address and why he feared the police. Although Mr. Harding’s credibility may have been damaged by evidence that he provided police with a fictitious name, we agree with the district court’s determination that counsel’s attempt to recover from this relatively mild disclosure by discussing Mr. Harding’s prior convictions was far more damaging than the initial injury. Mr. Harding’s attorney particularly injured his client when he introduced the fact that Mr. Harding had been convicted of armed robbery and the length of the prison term that the defendant had served for that crime. Therefore, we agree with the district court that counsel’s performance fell well below the objective standard of reasonableness in Strickland.
Particular Issues -- Counsel -- Ineffective Assistance -- "Unfulfilled Promise" with Respect to Presentation of Evidence Evidence
Ronald Barrow v. Uchtman, 7th Cir No 03-3622, 2/15/05
Barrow next contends, as a separate ground for his ineffective assistance of counsel claim, that his attorney promised the jury he would present exculpatory evidence—including testimony from Barrow himself—and then failed to do so. ... In Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003), we addressed this very issue, and there we placed great importance on counsel’s unfulfilled promises to the jury as distinct from the more general failure to present evidence. Hampton held that where a lawyer has promised the jury that a criminal defendant will testify in his own defense, and then unreasonably breaks this promise by not calling the defendant to the stand, such an error is both objectively unreasonable and prejudicial to the defendant. Id. at 257-60.

However, in Hampton, this Court placed special importance on the fact that trial counsel had specifically promised the jury that the defendant would testify himself. Id. Here, ... counsel made no explicit promise that Barrow would testify himself. ...

Particular Issues -- Counsel -- Ineffective Assistance -- Examination of Witness / Presentation of Evidence -- "Haseltine" Evidence
Fairly W. Earls v. McCaughtry, 7th Cir. No. 03-2364, 8/16/04, granting habeas relief in unpublished decision of Wis. COA
Issue/Holding1: The opinion of a State's expert that the complainant's accusation against defendnat was truthful violated State v. Haseltine, 120 Wis. 2d 92, 96, 352 N.W.2d 673 (Ct. App. 1984), and counsel's failure to object to the opinion was deficient:
... In reviewing trial counsel’s actions in the above situations, we find that the repeated failure to object to the testimony in question clearly fell below an objective standard of reasonableness.

The nature of the case highlights the central role that J.M.O.’s credibility played in Earls’ conviction. There were no witnesses who could corroborate J.M.O.’s story, there was no physical evidence of the assaults, and no witnesses testified to any impropriety involving Earls. Whether Earls was found guilty hinged on whether the jury believed J.M.O. We can think of no strategic reason why Earls’ counsel would not have objected to the pieces of questionable testimony going to this issue; indeed, counsel admits such failures to object and redact were unintentional “oversights.” Similarly, we can think of no reason that the importance of that testimony would not have been apparent at the time of the trial. The areas of Wisconsin evidentiary law in play here are sufficiently clear; indeed the cases in which these evidentiary questions are examined are almost factually identical to Earls’ case. See Haseltine, 352 N.W.2d at 674-76 (involving psychiatrist testimony going to veracity of 16-year-old accuser where there was no other evidence of incest); Romero, 432 N.W.2d at 900-05 (involving testimony of seven-year-old’s mother, school guidance counselor and a police officer going to her veracity when there was no other evidence of sexual assault).

Issue/Holding2: Unobjected-to opinion testimony of lay witnesses that the complainant was testifying truthfully was not deficient performance, given the state court's decision that this testimony was admissible under § 906.08(1). (Habeas court "view(s) askance this holding by the State court," but defers to it "because it is not our place to second-guess state courts in interpreting state law[.]")
Particular Issues -- Counsel -- Ineffective Assistance -- Guilty Plea -- Generally
Thomas Richardson v. U.S., 7th Cir. No. 02-3786, 8/16/04
When the alleged deficiency is a failure to investigate, the movant must provide “the court sufficiently precise information, that is, a comprehensive showing as to what the investigation would have produced.” Hardamon v. United States, 319 F.3d 943, 951 (7th Cir. 2003) (internal quotations and citation omitted). Whether a movant who pleaded guilty can establish prejudice from counsel’s failure to investigate depends on whether the information that might have been discovered “would have led counsel to change his recommendation as to the plea,” Hill, 474 U.S. at 59. This is an objective analysis that requires us to examine what a reasonable person would do “without regard for the ‘idiosyncrasies of the particular decisionmaker.’ ” Id. at 60 (quoting Strickland, 466 U.S. at 695).
Particular Issues -- Counsel -- Ineffective Assistance -- Inadequate Investigation: Deceased's Toxicology Report
Willie Harris v. Cotton, 03-1611, 4/2/04
Harris was charged with murder and his defense was selfdefense. The behavior of the victim was therefore extremely important to Harris’s case.

From the perspective of a defense attorney, an affirmative defense of self-defense against a drunk and cocaine-high victim stands a better chance than the same defense against a stone-cold-sober victim. Common sense tells us that an individual under the influence of cocaine and alcohol may look and act in a strange manner—an observation supported by expert testimony in the post-conviction proceedings.... Therefore, it is clear that Harris’s attorney should have the toxicology report for use at trial. Because his failure to obtain and present the report was a mistake, and not a calculated strategic decision, we find that his performance fell below the objective standard of reasonableness required by Strickland.


[T]he jury was left with the impression that the decedent was not intoxicated when, in fact, he was quite inebriated. If the jury believed that Jones was sober, there is a reasonable probability that they would not have believed Harris’s version of events as it related to Jones’s behavior.

We find that there is a reasonable probability that the outcome of the proceedings would have been different if the toxicology results were presented. Harris’s Sixth Amendment right to effective assistance of counsel was violated.

The Indiana state court identified the correct legal standard—that of Strickland—but unreasonably applied it. Despite recognizing the critical importance of the victim’s behavior, the state court did not find prejudice. Our analysis of their opinions leads us to believe that the court failed to apply the “reasonable probability” standard despite citing to that standard.

Particular Issues -- Counsel -- Ineffective Assistance -- Adequacy of Investigation: Client's Right to Curtail Counsel's Efforts
Donald Ray Wallace, Jr., v. Davis, 7th Cir. 02-4262, 3/26/04
... Trial counsel further testified that Wallace was not cooperative in the gathering of this information and did not want certain family members to testify at his trial....

The absence of any additional evidence—not only at sentencing but also during the post-conviction proceedings —must be laid at Wallace’s doorstep, and here is the source of counsel’s ethical problem. During the state postconviction proceedings, Wallace testified that the paucity of evidence was his own preference.... If counsel had presented evidence against the client’s instructions, then there would have been a solid ineffective-assistance argument. By respecting Wallace’s wishes, counsel not only abided by ethical requirements (lawyers are agents, after all) but also furnished the quality of assistance that the Constitution demands. As Faretta v. California, 422 U.S. 806 (1975), holds, the accused’s will prevails because the constitutional right is to legal assistance; “assistance” differs from an entitlement (let alone an obligation) to override a client’s instructions. Many decisions during trial fall to counsel by default or by virtue of superior knowledge, but the major ones—such as whether to testify or present a defense—may be exercised personally, if the accused wants to make rather than delegate these vital choices.

A good lawyer tries to persuade the accused to make a wise decision about testifying (or keeping silent) at trial, and about presenting a defense, even though the ultimate decision rests with the client, and wretched advice that leads the accused to make a bad decision is a form of ineffective assistance. The accused is entitled to the information essential to make an educated choice.... Wallace thus could and did make an informed decision; and if the decision to forbid counsel to proceed was unwise, he must accept the consequences. Certainly no opinion of the Supreme Court establishes that counsel is obliged to override the client’s instructions; once again, given Teague, any such novel rule must be established on direct appeal rather than collateral review.

Particular Issues -- Counsel -- Ineffective Assistance -- Fifth Amendment Analysis: No Clear Supreme Court Precedent
Charles E. Sweeney, Jr. v. Carter, 361 F.3d 327 (7th Cir 2004)
Issue/Holding: Notwithstanding counsel's "woefully inadequate performance" in advising his client (Carter) to make pre-charging statements under an unenforceable immunity agreement, a claim of ineffective assistance under the fifth amendment is itself immune from habeas review:
... Indeed, as far as we can tell, the Supreme Court has not mentioned effective assistance of counsel (in the Strickland sense) and the Fifth Amendment in the same breath, let alone set forth a clearly established right to that effect. To the contrary, the Court has been at pains in the Sixth Amendment context to note that the right to counsel attaches only at the initiation of adversary criminal proceedings, and not before....

It might be possible to read the Supreme Court’s decision in Hill v. Lockhart, 474 U.S. 52 (1985), as signaling the Court’s willingness to extend Strickland to novel contexts. (The state, much to its credit, considers this possibility in its brief, though nowhere is the case mentioned by Sweeney.) Lockhart applied the two-part Strickland standard to the Court’s earlier holding in McMann v. Richardson, 397 U.S. 759, 771 (1970), that the voluntariness of a guilty plea depends on whether the advice was within the range of competence demanded of attorneys in criminal cases. Lockhart, 474 U.S. at 56-57. But even the extension of the Strickland standard in Lockhart will not carry the day for Sweeney. Extrapolation from Supreme Court authority is not enough to overcome the deference to state-court decision-making built into § 2254(d). Lockhart or no, the operative question is whether the Supreme Court itself has established the right in Sweeney’s particular circumstances. It has not, and so we are left with the inescapable conclusion that the lack of Supreme Court authority sinks Sweeney’s claim.

Given denial of relief, the court didn't have to go to the next step, but what sbout admissibility of derivative evidence based on counsel's inadequate performance with respect to a police interrogation? People v. Frazier, MI SCt No. 131041, 6/6/7, says that "(b)ecause the defendant's confession did not result from police misconduct, the purpose of the exclusionary rule is in no way served by" suppression of derivative evidence.
Particular Issues -- Counsel -- Ineffective Assistance -- Guilty Plea Advice -- Misunderstanding of Good-Time Credit
Gregory J. Moore v. Bryant, 03-1126, 10/23/03
We turn, then, to the question of whether that advice constituted ineffective assistance of counsel, and whether the state court was unreasonable in determining that it did not. In order to demonstrate ineffective assistance in the context of a guilty plea, Moore must demonstrate that his counsel’s advice regarding the plea was objectively unreasonable and that there is a reasonable probability that, but for counsel’s error, Moore would not have pled guilty, but would have insisted upon a trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Strickland v. Washington, 466 U.S. 668 (1984). We have identified the criteria that apply regarding an attorney’s advice concerning an offer of a plea agreement. A reasonably competent counsel will attempt to learn all of the facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis before allowing his client to plead guilty. United States v. Barnes, 83 F.3d 934, 939 (7th Cir. 1996). “Although the attorney’s analysis need not provide a precisely accurate prediction of the respective consequences of pleading guilty or going to trial, the scrutiny must be undertaken in good faith.” Id. at 939-40. When the attorney fails to do so and that failure is the decisive factor in the decision to plead guilty, the Sixth Amendment is violated and the defendant may withdraw his plea. Id. at 940. The district court properly held that this standard was met here.
Issue/Holding2: Misadvice by counsel as to the effect of good-time credit -- which "dramatically altered the choice faced by Moore," nearly doubling the amount of time he would serve if he were convicted after trial rather than taking the plea bargain -- entitled Moore to withdraw his guilty plea:
... Where erroneous advice is provided regarding the sentence likely to be served if the defendant chooses to proceed to trial, and that erroneous advice stems from the failure to review the statute or caselaw that the attorney knew to be relevant, the attorney has failed to engage in the type of goodfaith analysis of the relevant facts and applicable legal principles, and therefore the deficient performance prong is met.
Particular Issues -- Counsel -- Ineffective Assistance -- Deficient Performance
Vonaire T. Washington v. Smith, 219 F.3d 620 (7th Cir. 2000)
For Washington: Robert R. Henak
Issue/Holding: Trial counsel's performance was deficient in three respects:
  • Last-minute issuance of subpoena for hard-to-find witness, on theory that trials are often adjourned at last minute anyway. ("(P)lacing witness convenience above the vital interests of his client does not make Mr. Engle's decision reasonable -- or even really strategic.")
  • Failure to investigate potential defense witnesses. ("Telling a client, who is in custody awaiting trial, to produce his own witnesses (as did Mr. Engle) falls painfully short of conducting a reasonable investigation, especially given that Sharon and David Brown did not have a telephone.... (I)t is wholly unreasonable for a lawyer to instruct his incarcerated client to get in touch with people who don't have a phone.")
  • Failure to read police report.
Same result, in "strikingly similar" case, Warren Goodman v. Bertrand, 7th Cir No. 04-3946, 10/31/06 (lawyer erroneously believed government would subpoena critical defense witness). Also see United States ex rel. Hampton v. Leibach, 347 F.3d 219, 251 (7th Cir. 2003) (re: deficient failure to investigate eyewitnesses neither implicated in crime nor suffering apparent impairment of credibility).
Particular Issues -- Counsel -- Ineffective Assistance -- Competency / Sanity
Johnnie Brown v. Sternes, 304 F.3d 677 (7th Cir. 2002)
Issue/Holding: Counsel's failure to investigate Brown's documented, long-standing, severe history of mental illness for both competency and sanity was denial of effective assistance of counsel.
Distinguished, Lawrence Dalton v. Battaglia, No. 03-3982, 3/23/05 (counsel's didn't "wholly ignore his client's extensive psychiatric history," but, rather, obtained diagnosis and prescription for anti-psychotic drug). Also see Ronald E. Burt v. Uchtman, 7th Cir No. 04-1293, 9/6/05 (IAC established, where counsel aware of information that should have alerted them to need for renewed competency hearing).
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice -- Generally
Davinne G. Taylor v. Bradley, 7th Cir No. 04-4061, 5/22/06, denying relief, unpublished decision of Wis. COA
... However, once a court is satisfied that a habeas petitioner will be unable to mount a victorious challenge under either of the two prongs of the Strickland test, it is unnecessary and undesirable for that court to consider the attorney performance facet of the analysis. See id. at 697. This is particularly true when an ineffectiveness claim may be disposed of on the basis of a lack of prejudice. Id. Indeed, in Strickland, the Supreme Court stated that “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies,” and concluded that where an ineffective assistance claim may be resolved based on lack of sufficient prejudice “that course should be followed.” 8 Id. This court has consistently followed the Supreme Court’s mandate in Strickland, first examining whether the petitioner has established prejudice and then, if necessary, examining whether counsel’s performance fell outside the parameters of what could objectively be considered “professionally competent.”
(The court goes on to find evidence of guilt "overwhelming," hence there was no possible prejudice and deficient performance need not be reached. But compare that conclusion with the dissenting judge in the state court of appeals, ¶25: "The record reveals that the State's evidence was thin and, in some important ways, implausible or inconsistent. The record reveals that the case was remarkably under-tried; defense counsel failed to expose or challenge many of the defects in the State's evidence.")
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice -- Competency
Ronald E. Burt v. Uchtman, 7th Cir No. 04-1293, 9/6/05
Issue/Holding: "Where a defendant argues that he should have received a fitness hearing, we have interpreted the prejudice inquiry as asking whether there is a reasonable probability the defendant would have been found unfit had a hearing been held. Eddmonds v. Peters, 93 F.3d 1307, 1317 (7th Cir. 1996)."
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice -- Close Case, Deficiencies Undermined Defendant's Credibility
Russell Martin v. Grosshans, 7th Cir No 04-4247, 9/15/05, granting habeas relief, in unpublished decision of Wis COA
Issue/Holding: Counsel's deficiencies -- which allowed evidence that undercut Martin's credibility in a close case, and also countenanced inflammatory closing argument by prosecutor -- were prejudicial.
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice -- Systemic Failings
Ronald Barrow v. Uchtman, 7th Cir No 03-3622, 2/15/05
... we note at the outset that counsel’s extreme failings at trial come perilously close to triggering the rule outlined in United States v. Cronic, 466 U.S. 648 (1984). ...

In the instant case, given that Barrow’s attorney adduced no evidence in defense (including no oral witness testimony), it could certainly be argued that Barrow’s counsel “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” However, this characterization is not supported by the Supreme Court’s subsequent applications of Cronic. ...

... Barrow’s attorney did not fail to take action altogether—at the very least he presented opening and closing arguments, and he cross-examined the State’s witnesses (however inexpertly). Thus in light of Bell it is most apt to say that counsel’s failure was not complete, but occurred “at specific points” in the proceeding. As such, we are satisfied that Strickland is the appropriate governing precedent.

Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice: Fourth Amendment Suppression Argument
Anthony Owens v. U.S., 7th Cir. No. 03-1507, 10/19/04
Issue/Holding: Failure to make a compelling, available suppression argument may establish sixth amendment, IAC prejudice, holding to the contrary in Holman v. Page, 95 F.3d 481, 488-92 (7th Cir. 1996), overruled:
The holding of Kimmelman v. Morrison—that the Sixth Amendment does provide a remedy for counsel’s failure to argue a Fourth Amendment defense—is inconsistent with holding that a defendant is not prejudiced by, and therefore has no Sixth Amendment grievance concerning, a failure to suppress illegally seized evidence....


The right to counsel is intended to place a criminal defendant in the approximate position that he would occupy if he were learned in the law and could thus defend himself effectively. Had Owens been learned in the law he would have admitted that it was his house that was searched, gotten the evidence found there suppressed, and been acquitted because there was negligible evidence of his guilt other than what was found in the search of the house. The “prejudice” essential to a violation of the Sixth Amendment right to the effective assistance of counsel is not being convicted though one is innocent, although that is the worst kind; it is being convicted when one would have been acquitted, or at least would have had a good shot at acquittal, had one been competently represented.

Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice: Failure to Advise Defendant of Right to Testify (Allocution at Penalty Phase, Capital Trial)
Keith B. Canaan v. McBride, No. 03-1384, 1/11/05
... “Even if the odds that the defendant would have been acquitted had he received effective representation appear to be less than fifty percent, prejudice has been established so long as the chances of acquittal are better than negligible.” United States ex rel. Hampton v. Leibach, 347 F.3d 219, 246 (7th Cir. 2003).

As we have discussed, Canaan’s testimony at the penalty phase would have been the only mitigating evidence the jury heard.... and so the effect of presenting no mitigating evidence at the penalty phase was that the jury considered only the two aggravating circumstances. With nothing to put on the mitigating side of the scale, the jury was almost certain to choose a death sentence. The testimony Canaan was prepared to offer, which he presented at his post-conviction hearing, may have persuaded the jury to be lenient....

Had the jury been aware of this considerable mitigating evidence, there is a reasonable probability that it would have returned with a different sentence. On this basis, we affirm the district court’s grant of habeas corpus relief to Canaan with respect to his ineffective assistance of counsel claim and hold that he is entitled to a new hearing on his sentence.

Effect of Hampton-type deficient performance (failure to have defendant testify) explained further, and contrastingly held non-prejudicial, in Barrow v. Uchtman, 7th Cir No 03-3622, 2/15/05:
... In Hampton, this Court held that the defendant was prejudiced by counsel’s failure to call him to the stand, in large part because the sole evidence against him was other eyewitness testimony. Id. Under such circumstances, we concluded that defendant’s opportunity to contradict and cast doubt on such testimony was critical to his defense. Id. In this case, by contrast, the primary evidence against Barrow was his own oral confession, recorded during a conversation with state witness Wrona, in which Barrow unequivocally confessed to the crime and described in his own words how he committed it. Under these circumstances, Barrow’s personal testimony seems far less crucial to his chances of success at trial.
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice
Linnell Harding v. Sternes, No. 03-2672, 8/23/04
Issue/Holding: Where the evidence of guilt was "considerable" though not "overwhelming," the state court's conclusion that Harding suffered no prejudice from any deficient performance "cannot be characterized as unreasonable."
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice
Fairly W. Earls v. McCaughtry, 7th Cir. No. 03-2364, 8/16/04, granting habeas relief in unpublished decision of Wis. COA
We have previously held that when a trial comes down to a single issue such as the credibility of a witness, deficient performance by defense counsel regarding that credibility issue may cause prejudice. Montgomery v. Petersen, 846 F.2d 407, 412-13 (7th Cir. 1988) (finding that counsel’s failure to introduce a witness to corroborate defendant’s alibi was prejudicial where government based its case on the testimony of defendant’s purported accomplice). Similarly, we have noted that where, like here, the defense attorney made multiple errors as opposed to a single error, the cumulative effect of those errors should be considered together to determine the possibility of prejudice. Washington v. Smith, 219 F.3d 620, 634-35 (7th Cir. 2000). In this case, Ghilardi’s testimony was pivotal—indeed, the jury asked for a transcript of her videotaped interview to consider while they deliberated. Unfortunately, that testimony twice wandered into assessing the credibility of J.M.O.’s accusation—an issue that should have been left solely for the jury to determine. Given the facts and circumstances of this trial, we find that the State court was unreasonable in finding that there was not a reasonable probability that, absent counsel’s errors, the outcome of the trial would have been different.
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice
Alonzo R. Perry v. McCaughtry, 308 F.3d 682 (7th Cir. 2002)
For Perry: David D. Cook
Issue/Holding Failure to object to omission of ptac liability in lesser offense instruction on felony murder -- where evidence was undisputed that defendant not direct actor -- non-prejudicial: "The charges, the attorneys’ arguments, Perry’s own statements offered into evidence and the jury instructions as a whole all spoke in terms of Perry’s culpability on each count as a party to the crime. Thus, it was absolutely clear at trial that Perry was being charged, on all counts, as a party to the crime."
Strong dissent discusses how, despite intimations to contrary in some cases, under Wisconsin law it is jury question whether murder is natural and probable consequence of armed robbery, especially where (as here) defendant had no foreknowledge that robbery victim would be killed.
Particular Issues -- Counsel -- Ineffective Assistance -- Prejudice
Vonaire T. Washington v. Smith, 219 F.3d 620 (7th Cir. 2000)
For Washington: Robert R. Henak
Issue/Holding: Impact of errors (from deficient performance) must be evaluated in their totality, not individually. Here, failure to adduce alibi witnesses not cumulative, where omitted witnesses couldn't have been impeached with prior criminal records, and "would have added a great deal of substance and credibility to Washington's alibi.... Rather than one direct alibi witness with a criminal record, Washington could have had three potentially more credible witnesses...."
Washington followed: Stewart v. Wolfenbarger, 6th Cir No. 04-2419, 11/9/06.

Particular Issues -- Counsel -- Waiver

Counsel -- Waiver -- Critical Stage
Anthony Grigsby v. Cotton, No. 04-3356, 8/1/06
Issue/Holding: Under state law, original jurisdicito for murder automatically vested in adult court, therefore the juvenile waiver hearing was in effect an "optional" proceeding rather than a critical stage at which right to counsel attached under 6th amendment. Thus, failure to provide counsel at the waiver hearing had no 6th amendment significance.
Counsel -- Waiver -- Competency
Robert Simpson v. Battaglia, 7th Cir No. 04-3044, 8/11/06
Issue/Holding: Simpson's tirade didn't demonstrate incapacity to waive counsel but, rather, "actually proved him to be quite responsive to the judge ... . A hothead Simpson may be, but legally incapacitated he was not."
Counsel -- Waiver -- On Appeal
Jael K. Speights v. Frank, 361 F3d 962 (2004)
Issue/Holding: Speights' election of an option that counsel withdraw so that Speights could represent himself, coupled with declination of postconviction counsel's offer to file a no-merit report, did not violate the right to counsel:
Wisconsin’s judiciary concluded that Speights had selected the third option in order to block Alesia from explaining to the appellate court why she had concluded that the appeal was untenable. Speights does not deny that this was his actual motivation (and in any event the state’s findings on that factual issue would be hard to upset, see 28 U.S.C. §2254(e)) but contends that the state was not entitled to put him to the choice. This line of argument boils down to disagreement with McCoy, which held that Wisconsin may require a lawyer who believes that an appeal would be frivolous to explain the weaknesses of any potential appellate arguments. Wisconsin’s procedure may lead some defendants to think it better to represent themselves than to allow counsel to arm the court with reasons why they should lose. Once McCoy sustained Wisconsin’s approach, however, persons in Speights’s position cannot claim a constitutional entitlement to avoid making that decision, even though from their perspective it amounts to a choice among evils. Defendants may have an unconditional right to counsel on appeal, but they do not have a right to counsel who pretend that frivolous arguments actually are meritorious. The choice to which the Appellate Decision Form puts a defendant may be hard, but it is also lawful. Unlike the situation in Betts v. Litscher, 241 F.3d 594 (7th Cir. 2001), which held that counsel may not abandon a client who opposes the filing of a no-merit report, attorney Alesia secured her client’s unequivocal consent. She made it plain that, in the absence of Speights’s agreement, she would file a no-merit report, as McCoy, Anders, and Betts require; Speights replied that he preferred to go it alone.


Speights, who bears the burden of persuasion on collateral attack, see Tovar, slip op. 13-14, does not contend that he misunderstood the choices offered. He is literate in English and not afflicted by any mental disease. Appointed counsel made it clear that, if Speights so requested (or even if he did nothing), she would proceed with a no-merit report, satisfying her obligations under McCoy. Armed with this knowledge, Speights dismissed his lawyer, prevented the filing of the no-merit report, and undertook to represent himself. He bungled the job. Wisconsin is not obliged by the Constitution to give him a second bite at the apple.

Nor, the court separately stresses, need a defendant be given Faretta warnings re: dangers of self-representation in a postconviction setting:
... The Supreme Court has never held that waivers of counsel at any stage of the proceedings other than trial require such a give-and-take between the accused and someone trying to educate him about counsel’s benefits ... [¶] ... When a state allows defendants to represent themselves on appeal, however, it may permit them to decide without the rigmarole that attends waiver of counsel for trial. ...
Counsel -- Waiver -- On Appeal
Keith S. Betts v. Litscher, 241 F.3d 594 (7th Cir. 2001)
Issue/Holding: Waiver not established, where appointed counsel withdrew after concluding that appeal had no merit but without filing no-merit report, on assumption that Betts had rejected offer of NMR. Betts, however, disputed assenting to this action, and because no evidentiary hearing was held to resolve this dispute, record did not show what information, if any, Betts was provided, or whether he had indeed agreed to counsel's withdrawal: "Waiver therefore has not been established."
Counsel -- Waiver -- On Appeal
James Arthur Oimen v. McCaughtry, 130 F.3d 809 (7th Cir. 1997)
For Oimen: Howard B. Eisenberg
But what exactly does it take to effectuate a valid waiver of counsel on appeal? For reasons that are too clear to us to require explanation, appellate courts do not engage in face-to-face dialog with defendants. So a waiver on appeal must be accomplished through written communication. Here the court of appeals told Oimen that if he insisted on having Schairer withdraw he might not get a second attorney. It was clear that Oimen wanted substitute counsel, but he also clearly signaled his willingness to proceed pro se if Schairer was his only other choice. Especially given that Schairer's only perceived deficiency was that he would not do something which Oimen had no right to insist on, we find that Oimen validly waived his right to counsel.
Nor did Oimen establish a conflict with appointed counsel: "the only conflict between Schairer and Oimen was in determining the issues to be raised on appeal. That is not a conflict of interest; it is a disagreement over strategy."
Indeed, there is authority for the idea that, under the federal habeas regime "a criminal defendant [does not] state[] a Sixth Amendment claim by alleging either an 'irreconcilable conflict' with his appointed appellate counsel or that such counsel had a conflict of interest based on the petitioner’s dismissed lawsuit against the public defender’s office and appointed pre-trial counsel," Foote v. Del Papa, 9th Cir No. 06-15094, 7/3/07
Counsel -- Waiver -- On Appeal
Wisconsin ex rel. Toliver v. McCaughtry, 72 F.Supp.2d 960 (E.D. Wis. 1999) (not available on-line)
(Subsequent habeas appeal: Stephen Toliver v. McCaughtry, 7th Cir No. 06-3316, 8/27/08)
Issue/Holding: Record did not establish knowing and voluntary waiver, despite state court of appeals authorizing withdrawal of counsel upon motion.
The District court based the result, in part, on absence of showing that Toliver was given proper "Faretta" warnings, i.e. of the "dangers and disadvantages of self-representation." However, there is grave reason to doubt whether such warnings are required, as a matter of federal habeas review. See, e.g., Dallio v. Spitzer, 343 F.3d 553 (1st Cir. 2003) ("Although explicit warnings as to the dangers and disadvantages of self-representation are certainly advisable to ensure knowing and intelligent waivers of the right to counsel, see Johnson v. Zerbst, 304 U.S. 458, 468 (1938) (holding that accused must 'competently and intelligently' waive the right to counsel), we conclude that it is not clearly established federal law as determined by the Supreme Court, see 28 U.S.C. § 2254(d)(1), that such warnings are a constitutionally mandated prerequisite to every knowing and intelligent waiver of the right. Because Dallio does not assert that his waiver of counsel was not otherwise valid, nor would the record support such a conclusion, see infra at note 4, he fails to establish a right to habeas relief."). That said, Wisconsin requires such warnings as a matter of state procedure, State v. Thornton, 2002 WI App 294, ¶21, and if Wisconsin were to invalidate a waiver on such a ground, “structural error” would follow so that an affirmance on a theory of harmless error wouldn't be countenanced. See, e.g., Cordova v. Baca, 9th Cir. 02-55713, 10/6/03. And it is further noted both that Dallio itself is relatively limited, holding in effect that waiver doesn’t require the formulaic recitation of Faretta warnings, but does require careful consideration of the defendant's characteristics; and also that the case involves waiver of trial and not appellate counsel. But it is certainly explicit on the narrow point that failure to give Faretta warnings doesn't invalidate waiver of counsel.
UPDATE: The 7th Circuit has since held that Faretta warnings are not required for waiving postconviction counsel, see Speights v. Frank, above.

Particular Issues -- Defendant's Right to Testify

Particular Issues - Defendant's Right to Testify - Personal Colloquy not Required to Establish Waiver
David Arredondo v. Huibregtse, No. 07-2777, 9/8/08, denying habeas relief, 2004 WI App 7
Issue/Holding: The Supreme Court has never held that a trial court must engage in an on-record colloquy with the defendant as to his or her desire not to testify.
The state trial court acted within its discretion in engaging in just such a colloquy; Arredondo argues that he changed his mind about not testifying, but the 7th holds that the trial court wasn't required to undertake a second colloquy on the subject. (Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003), summarized below, distinguished: Arredondo was competent and "in short, cannot rebut the state court’s factual finding that he knowingly and voluntarily waived his right to testify.").
Particular Issues - Defendant's Right to Testify - Attempt to Retract Waiver
David Arredondo v. Huibregtse, No. 07-2777, 9/8/08, denying habeas relief, 2004 WI App 7
Issue/Holding: Refusal to allow Arredondo to retract his waiver of the right to testify was not under the circumstances (prejudice to the prosecution and delay in the trial) objectively unreasonable, "given the high level of generality at which the Rock methodology is applicable here."
Particular Issues -- Defendant's Right to Testify -- Necessity of Knowing, Intelligent Waiver
Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003)
Issue/Holding: A defendant has a "fundamental" right to testify; "personal waiver of this fundamental right, which protects the fairness of the criminal proceeding, must have been knowing and intelligent to be valid." Waiver, on this record, was invalid, where: Ward, though competent, had aphasia due to brain damage, and a consequential "severe language-processing deficit"; counsel told the trial court that he and not Ward himself made the decision that Ward not testify; and that the trial court's attempt to go over this with Ward elicited merely ambiguous responses.
The facts are somewhat extreme, and the holding is therefore best seen as narrow:
Simply put, the trial court did not exercise that level of extraordinary patience in extracting Ward’s purported waiver. Under these circumstances, an in-chambers conference on the subject of Ward’s understanding of his rights was not an exceptional measure to be credited to the court’s patience, but was a required procedure. In other words, there was an indication that Ward was prevented by his own mental deficiencies from exercising his fundamental right to testify, which then necessitated further inquiry from the court. See United States v. Manjarrez, 258 F.3d 618, 623-24 (7th Cir. 2001). And more than an equivocal, “I guess, I don’t know,” in response to the trial court’s question of whether Ward was “in agreement” with his counsel’s “best advice and professional judgment that [he] not be called to testify [himself]” was required to ensure an accused with severe brain damage was knowingly and intelligently waiving a fundamental right. In the abstract, the words themselves are inconclusive, equally capable of classification as words of assent or of reluctance. Yet, absent any evidence that the speaker had mental handicaps and a severe language-processing deficiency, we would accept a trial court’s interpretation given that court’s superior position to observe the speaker and infuse meaning into the statement. Here, however, where it was known that the defendant’s ability to express himself through language was severely compromised, it was unreasonable to assign the statement meaning without the benefit of further inquiry. By quickly deciding “that’s the best we’ll ever do,” the trial court concluded its inquiry prematurely and accepted what was an at-best ambiguous statement for a conclusive waiver.
(Note that court subsequently, in Dennis Thompson, Jr. v. Battaglia, 7th Cir. No. 04-3110, 8/14/06, reviewed right-to-testify claim without so much as mentioning Ward. Upshot: proper waiver may be assumed, notwithstanding absence of colloquy, because "(t)he variety in practice among the state courts and the various federal courts shows ... that there is no standard clearly established by the Supreme Court of the United States that is binding on all.")

Wisconsin, it should be noted, recognizes the fundamental nature of the defendant's right to testify and requires an on-record colloquy as demonstrating knowing and voluntary waiver, State v. Weed, 2003 WI 85, ¶40; but the remedy for failing to conduct the colloquy is left open, id., ¶48.

For authority that counsel is obligated to discuss with the defendant the opportunity to and consequences of testifying, see Keith B. Canaan v. McBride, 7th Cir No 03-1384, 1/11/05.

Particular Issues -- Double Jeopardy

Particular Issues - Retrial After Mistrial - "Manifest Necessity"
Clyde B. Williams v. Bartow, No. 05-4736, 3/20/07, denying relief in 2004 WI App 56
We conclude that the decision of the Court of Appeals of Wisconsin was not an unreasonable application of clearly established Supreme Court law. It recognized that Washington requires that an appellate tribunal give a broad range of discretion to a trial judge in estimating the degree of juror bias precipitated by the remark of counsel. The Wisconsin appellate tribunal reasonably decided that there was no material distinction between the situation confronted in Washington, in which a prejudicial remark was made by the defense attorney in opening arguments, and the situation here, in which a question of similar prejudicial effect is improperly put to a witness.
Also see Ross v. Petro, 6th Cir No. 05-4212 ("manifest neccesity" for mistrial gauged under Washington, with state court ruling entitled to great deference).
Particular Issues -- Mulitple Punishments -- Reviewability, Generally
Kevin R. McCloud v. Gamble, 7th Cir No. 04-2561, 6/2/05
For the defendant who receives multiple punishments in a single proceeding, the Double Jeopardy Clause serves only to ensure that the legislature authorized cumulative punishments; it does not preclude such punishments. The Wisconsin Court of Appeals has considered whether the Wisconsin legislature intended to permit multiple punishments as to the crimes for which McCloud was sentenced to consecutive terms: on examining the elements of the two statutes in question, the court concluded that they were distinct offenses for which the state legislature had authorized multiple punishments. The cumulative punishments imposed on McCloud therefore were consistent with the legislature’s intent and did not run afoul of the Double Jeopardy Clause. Although McCloud maintains that the state court erred in concluding that the two offenses were not the same, that conclusion is solely one of state law, and we have no power to review that conclusion. The decision of the district court to deny McCloud’s petition for a writ of habeas corpus is therefore AFFIRMED.
Particular Issues -- Drug Tax Stamp Assessment, §§ 139.87-139.96, As Punishment Sufficient to Trigger Double Jeopardy Concerns on Subsequent Prosecution For Possessing Same Drug
Stephen Dye v. Frank, 03-1368, 1/27/04
For Dye: Christopher M. Bailey
To determine whether a civil penalty is so punitive that it is should be characterized as criminal punishment, we must consider the factors listed by the Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), and reaffirmed in Hudson v. United States....

Using the Kennedy factors, we conclude that the Wisconsin drug tax was so punitive in purpose and effect that it constituted a criminal punishment....

... (J)eopardy attaches to a punitive tax “when the defendant voluntarily pays the amount due in full . . . [or] when the government takes title to a defendant’s assets.” See Doyle v. Johnson, 235 F.3d 956, 959 (5th Cir. 2000).

... For these reasons, we reverse the district court’s denial of habeas corpus. In doing so, we emphasize that this case does not stand for the proposition that Wisconsin cannot both tax and imprison those who violate drug laws. It is well-established that cumulative punishments may be meted out as long as they result from a single proceeding. See, e.g., Kurth Ranch, 511 U.S. at 778; Torres, 28 F.3d at 1464. Moreover, it is a rare tax statute which is so punitive in either purpose or effect that it is subject to double jeopardy analysis at all. However, when we are presented with a criminal punishment masquerading as a civil tax, we are compelled by the mandates of the Constitution to ensure that the defendant is punished only once for his misconduct.

Dye's drug tax was assessed on the prior tax stamp act; since amended to address a self-incrimination problem identified in State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), it now prohibits use in a criminal proceeding against a dealer of tax stamps affixed to illegal drugs, which therefore removes that particular infirmity. State v. Glover B. Jones, 2002 WI App 196, ¶33-36. Moreover, under the new act, possession with intent to deliver is not a lesser included offense of the drug tax stamp law, and double jeopardy therefore doesn't preclude a defendant from being convicted of both. Id., ¶39-41. The particular issue in Dye -- whether a drug tax assessment may be regarded as punitive -- was not resolved by either Hall or Jones. Nor does it appear that the post-Hall legislative amendment addressed this particular problem. Dye is therefore the definitive statement on stamp-act-as-punitive. But as the final paragraph quoted above suggests, its impact may be fairly limited.
Particular Issues -- Acquittal as Collateral Estoppel Bar to Subsequent Prosecution
Chris Jacobs v. Marathon County, 73 F.3d 164 (7th Cir. 2001)
For Jacobs: Randall E. Paulson, SPD, Milwaukee Appellate; Weldon Nelson, SPD, Wausau Trial
Issue: Whether acquittal on first-degree murder bars subsequent charge for kidnapping involving same victim and same incident.
Jacobs' first argument in support of his habeas petition is that the present charges against him are either analogous to or "species of" lesser included offenses of the first degree murder charge of which he was acquitted in 1989. ...

The fatal flaw in this argument is that, for purposes of double jeopardy analysis, we look to the charges ac- tually brought against the defendant, not to all possible charges available to the prosecution.... Evaluating the charges against Jacobs in the two prosecutions, we see that each charge requires proof of additional elements as demanded by the Blockburger test....

Jacobs' second argument in support of his petition hinges on the principle of collateral estoppel. ...

In determining whether additional litigation of an issue is precluded, the burden is "on the defendant to demon- strate that the issue whose litigation he seeks to foreclose was actually decided in the first proceeding." ... of whether he participated in a kidnapping and false imprisonment of Helen Kunz was litigated in the 1989 murder trial, and then that the question was necessarily resolved against the State.

Jacobs' collateral estoppel argument is flawed because it focuses on what the jury might have decided in acquitting him of first degree murder, rather than what the jury must have decided in order to reach its decision. Col- lateral estoppel applies only where an issue was neces- sarily decided in a previous proceeding, and it is simply not the case that the question of whether Chris Jacobs participated in the events of July 4, 1987, was necessari- ly decided against the State in the 1989 trial. The jury could rationally have based its decision on the question of proof of an intent to kill rather than on the question of Jacobs' participation in the events. That the intent-to- kill element was critical to the jury's consideration of the case is obvious by the question, quoted earlier, that the jury sent to the judge near the end of its deliberations.

The court, interestingly, holds that in this context juror affidavits aren't barred by the rule against verdict-impeachment, but are relevant and admissible on the issue of what the jury actually resolved (they don't help Jacobs for fact-specific reasons). Compare, though, this result with Losey, immediately below, an Ashe v. Swenson, collateral estoppel case that grants relief but sonewhat oddly doesn't even cite Jacobs.
Particular Issues -- Acquittal as Establishing Collateral Estoppel Bar to Re-Prosecution
James D. Losey v. Frank, 268 F. Supp.2d 1006 (E.D. Wis. 2003) (no non-commercial link), State's appeal, No. 03-3196, dismissed as moot, 10/27/03
Issue/Holding: Where Losey was charged with armed robbery (specifically, "while armed with ... an automatic handgun") and felon in possession of the same handgun; the jury acquitted on the possession charge; and the jury's conviction on the armed robbery was vacated due to instructional error which raised a theory of guilt unsupported by the evidence, namely that Losey did not in fact possess a weapon but the victim reasonably thought he did: re-prosecution for armed robbery would be barred by the collateral estoppel doctrine, a component of double jeopardy.
Thus, the state made being armed with a gun an element of the offense of armed robbery, and it failed to prove that petitioner was armed with a gun. The state's evidence on the armed robbery charge was, therefore, legally insufficient because the state failed to prove an element of the offense, i.e., that petitioner was armed. As a result, the trial court's decision setting aside the armed robbery conviction was the equivalent of a verdict of acquittal on that charge. Thus, the decision is deserving of the finality accorded to verdicts of acquittal, and re-prosecution of petitioner for armed robbery is barred. The state had a full, fair and complete opportunity to prove petitioner guilty but failed to adduce sufficient evidence to do so. See Burks, 437 U.S. at 16-17; United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977). The state was not compelled to charge petitioner in a manner that required it to prove that he was armed with a gun, nor did the erroneous jury instruction prevent it from proving such element. To permit a retrial on the armed robbery charge would give the state a "second bite at the apple," Burks, 437 U.S. at 17, i.e., an unjustified opportunity to correct the deficiencies in proof revealed at the first trial.
However, because the jury necessarily found every element of simple robbery in returning a guilty verdict on armed robbery, retrial for simple robbery isn't barred.
It is unwise to read more into this case than its fact-specific nature would allow. More particularly, the general rule is that double jeopardy does not apply merely because the jury has returned inconsistent verdicts, U.S. v. Powell, 469 U.S. 57, 64-65 (1984). (On the flip side, an inconsistent verdict of acquittal nonetheless creates a double jeopardy bar to retrial, Stow v. Murashige, 9th Cir. No. 03-17036, 11/19/04; but if the district court was attempting to apply that seemingly inapplicable principle, it didn't do so explicitly. But, Stow does illustrate the point potentially relevant here that a verdict of acquittal no matter how erroneous is "absolute.") If inconsistent-verdict were the basis of Losey's claim, then the result would undoubtedly be different. Instead, the idea of armed robbery acquittal notwithstanding the jury's assignment of guilt must be grounded in something other than felon in possession acquittal. Thus, the district court ascribed significance to the fact that the state trial court
considered the verdict to be a determination that petitioner did not have a gun and therefore concluded that the evidence was insufficient to support a conviction of armed robbery based on petitioner's use of a gun.... [¶] Thus, insofar as the armed robbery conviction was based on petitioner's being armed with a gun, the court set it aside because of a failure of proof.
The implication, then, is that the trial court acquitted Losey (at least as to armed robbery). But this, too, is shaky: the trial judge did not direct a verdict but instead merely sat in review of the verdict; generally, a reviewing court's (in contrast to an original fact-finder's) determination of insufficient evidence doesn't trigger double jeopardy concerns, at least in the sense of barring further review of that determination. See, e.g., Berry v. State, 90 Wis.2d 316, 280 N.W.2d 204 (1979). Perhaps the State's failure to seek review of the trial judge's determination clothed it with the same sort of finality as a verdict of acquittal. The district court opinion simply doesn't address this potential problem. Another possible basis for relief exists, though it too isn't explicitly discussed by the district court. Losey was charged with actual possession of a weapon; yet, the case went to the jury on a theory of pretense armed robbery -- the evidence was insufficient as to that sole theory of guilt, quite apart from the procedural knot stemming from the trial judge's grant of relief. See, on this point, State v. Brian C. Wulff, 207 Wis. 2d 143, ¶23, 557 N.W.2d 813 (1997) ("we can uphold this conviction only if the evidence presented at trial was sufficient to uphold" theory of guilt jury actually instructed on); and id., ¶27 ("We can uphold Wulff's conviction only if there was sufficient evidence to support guilt on the charge submitted to the jury in the instructions.").
Particular Issues -- "Equally Serious" Offenses -- Double Jeopardy Reckless Homicide and Homicide by Intoxicated Use of a Vehicle
Lechner v. Frank, 341 F.3d 635 (7th Cir. 2003), habeas denied in State v. Lechner, 217 Wis.2d 392, 576 N.W.2d 912 (1998)
For Lechner: Craig Albee
...Lechner argues that his sentence constitutes double jeopardy because the Wisconsin legislature did not intend multiple punishments for his conduct, as evinced by Wisconsin Statute § 939.66(2).....

He argues that § 939.66 applies to his conviction because intoxicated vehicular homicide is a more serious offense than reckless homicide. He admits that although both statutes carry the same maximum prison term as Class C felonies, he faces an additional $250.00 fine and loss of his driver’s license under intoxicated vehicular homicide.

... The Wisconsin Supreme Court ruled that the legislature did not intend to prohibit multiple prosecutions for equally serious crimes and that prison terms were the controlling factors in making the two crimes equally serious....

This is fatal to Lechner’s claim. Federal habeas corpus relief does not lie for errors of state law, see Lewis v. Jeffers, 497 U.S. 764, 780 (1990), and we are bound by the state court’s interpretations of state law.... The two statutes can be reasonably seen to be equally serious, and therefore his multiple punishments do not violate state law nor does the interpretation of the law violate Lechner’s right against double jeopardy. Therefore, because Lechner also does not have a constitutional claim under the Blockburger test, his habeas petition for double jeopardy violation must fail.

Particular Issues -- Doyle v. Ohio

Particular Issues -- Doyle v. Ohio
Bieghler v. McBride, 7th Cir. No. 03-3749, 11/18/04
In contrast to Doyle and these other cases, the prosecution here did not argue that Bieghler’s initial silence undermined the reliability of his trial testimony nor at any point did it use his silence as evidence of guilt. As we explained in Splunge v. Parke, 160 F.3d 369 (7th Cir. 1998), “what Doyle stands for is that arrest-time silence not be used to impeach trial-time testimony by asking something like: ‘If the version of events to which you have just testified is true, why didn’t you tell this to the police as soon as you were arrested?” Like in Splunge, the prosecution’s questions and argument regarding Bieghler’s post-arrest conduct were not aimed at impeaching Bieghler’s trial testimony.
Compare, Arnold v. Runnels, 9th Cir No. 04-15194, 8/24/05 (suspect clearly invoked rights by saying he didn't want to talk on tape and then responding "No comment" to questions during taped interview: prosecutorial use of those responses violated Doyle).
Particular Issues -- Doyle v. Ohio
Robert J. Smothers v. McCaughtry, 7th Cir No. 04-3764, 8/9/05, denying habeas relief in unpublished opinion
... Rather than Doyle, which invalidated impeachment based on post-Miranda silence, this case is more appropriately analyzed under Jenkins v. Anderson, 447 U.S. 231 (1980), and Fletcher v. Weir, 455 U.S. 603 (1982). The Court in Jenkins and Fletcher distinguished Doyle and established that use of pre-arrest and pre-Miranda silence to impeach a defendant’s credibility does not run afoul of the Constitution. That is what the prosecutor did in this case. ...

Particular Issues -- Ex Post Facto

Particular Issues -- Ex Post Facto -- Change in Parole Guidelines
Eric A. Glascoe v. Bezy, 7th Cir No. 03-3466, 8/30/05
Issue/Holding: "What Garner does do is confirm the possibility that changes to parole practices may, in some instances, violate the Ex Post Facto Clause and provides the test for determining whether a violation has occurred: when the new practice is not harsher than the old one on its face, there is an ex post facto problem if the new practice 'created a significant risk of increasing [the inmate’s] punishment.'"

Particular Issues -- Exculpatory Evidence Suppression
(Also see "Shiffra" cases,

Particular Issues - Exculpatory Evidence - Publicly Available Information
Albert J. Price v. Thurmer, 514 F.3d 729 (2/1/08)
Issue/Holding: The government has no obligation to disclose to the defense information that it not only was unaware of, but was a matter of public record readily accessible to defense counsel.
Particular Issues - Exculpatory Evidence - Suppression of Information Contrary to State's Theory of Intentionally Aiding & Abetting
Stephen Toliver v. McCaughtry, 7th Cir No. 06-3316, 8/27/08, on habeas review of unpublished Wis COA opinion, 00-2460-CR
For Toliver: Brian P. Mullins, Federal Defender Services
Issue/Holding: Evidence allegedly sent to the prosecution, undermining its theory of intentional aiding and abetting, was material and exculpatory, entitling Toliver to an evidentiary hearing on remand as to whether the state actually received (and therefore suppressed) such evidence.
Particular Issues -- Exculpatory Evidence -- Alibi
Robert Earl Badelle v. Correll,, 7th Cir No. 04-1602, 6/22/06
Issue/Holding: State court's conclusion that nondisclosure of alibi witness, standing alone, was not material for Brady purposes wasn't unreasonable.
Particular Issues -- (Potentially) Exculpatory Evidence -- Destruction of Court Exhibits
Alphonso Hubanks v. Frank, 04-1043, 12/22/04
For Hubanks: Robert J. Dvorak
Issue/Holding: Post-trial destruction of court exhibits, which arguably prevented Hubanks from performing DNA analysis on potentially exculpatory evidence, did not deny due process, given the state court finding that the exhibits were not destroyed in bad faith. Nor did the state court unreasonably apply Arizona v. Youngblood, 488 U.S. 51 (1988) (no violation of due process absent bad faith destruction of evidence of apparent exculpatory value).
Particular Issues -- Exculpatory Evidence -- Forebearance from Prosecuting Witness on Suspected, Unrelated Charges
Mark A Wisehart v. Davis, No. 04-1632, 5/10/05
Issue/Holding: State's failure to inform defense of its refusal to prosecute witness for two burglaries he was suspected of committing -- a benefit the witness was aware of for providing testimony -- did not violate Brady.
The opinion is a bit opaque, but does specifically indicate that there was "no agreement, express or implied," between prosecution and witness, therefore the witness "was not testifying falsely when he denied having any 'kind of deal' with the prosecution regarding his other crimes; a deal is an agreement." Without a concession agreement there could hardly be any suppression of same. The opinion takes pains to say that a "definite benefit" might permit an inference that the witness's testimony would be affected, but that the prosecutorial forebearance in this instance simply didn't rise to this level: that "the state merely doesn't come down as hard on a witness as it could," or the mere fact that the prosecution afforded favorable treatment, doesn't establish an underlying concession agreement. So understood, the holding is unremarkable; however, it goes on to note that the witness was indeed aware of the benefits he was getting for his testimony, and strives to say that the state court didn't unreasonably apply precedent in determining that no exculpatory information was suppressed. It is in that sense that the opinion is opaque, in that the witness was indisputably benefiting from his testimony. Perhaps the narrow holding relates to the constraints of habeas review, and the absence of Supreme Court precedent expressly requiring the State to disclose information which might underly its witness's mere, subjective expectation of a benefit. But note that on direct appeal a differnt result could and should obtain, see, e.g., State v. Delgado, 194 Wis.2d 737, 753, 535 N.W.2d 450 (Ct. App. 1995), and cites, to effect that witness's understanding, rather than existence-in-fact of deal, controls.

Note, though, the following application of Wisehart, to the effect that while a "tacit" agreement must be disclosed, the witness's mere expectation of a benefit doesn't trigger Brady Bell v. Bell, 6th Cir No. 04-5523, 1/4/08:

... The existence of a less formal, unwritten or tacit agreement is also subject to Brady’s disclosure mandate. See, e.g., Wisehart v. Davis, 408 F.3d 321, 323-24 (7th Cir. 2005). If Bell could prove that Davenport and Miller had reached a mutual understanding, albeit unspoken, that Davenport would provide testimony in exchange for the district attorney’s intervention in the case against him, such an agreement would qualify as favorable impeachment material under Brady. On the record before us, however, we are unable to conclude that such an agreement existed here. ...

The fact that Davenport desired favorable treatment in return for his testimony in Bell’s case does not, standing alone, demonstrate the existence of an implied agreement with Miller. A witness’s expectation of a future benefit is not determinative of the question of whether a tacit agreement subject to disclosure existed. ...

(The court thus vacated the panel decision, 460 F.3d 739 (holding that "tacit" agreement -- "an unspoken agreement" -- enough to trigger Brady, and construing Wisehart to so hold; caselaw canvassed, court going so far as to say "that even absent any agreement, tacit or otherwise," government must disclose prosecution witness's attempt to curry favor).)
Particular Issues -- Exculpatory Evidence -- Plea Bargained Concessions to Prosecution Witness: "Self-Validating" Information not "Material"
Randall K. Mataya v. Kingston, 7th Cir. No. 02-2850, 6/3/04
... Brady evidence is material only if there is a reasonable probability that disclosure to the defense would have resulted in the jury’s acquitting the defendant....

Usually evidence that the prosecution’s principal witness had been offered a strong inducement to testify against the defendant would satisfy the criterion of materiality. And there is no doubt that Hertel was the state’s principal witness against Mataya. We are not impressed by the state’s argument that the remaining evidence made his conviction a certainty regardless, though we’ll note later in this opinion that the evidence of Mataya’s guilt, even without his confession to Hertel, was considerable. Nor does the fact that Hertel began talking to the police before there was any agreement to drop the charges against him show, as the state also argues, that the agreement didn’t operate as an inducement for him to lie on the stand. A prospective witness might lie to the police in the hope of obtaining concessions yet be unwilling to repeat his lies on the stand unless he obtained very generous concessions in bargaining with the prosecution over the “price” of his cooperation. Indeed from the get-go Hertel demanded as part of the inducement for his testifying for the government that it drop the burglary charges against him. He could not negotiate the deal without revealing to the government at least some of what he would be willing to testify to if the deal went through. This didn’t make the revelation independent of the deal—quite the contrary.

But what is unusual about this case, and decisive against the Brady claim, is that Hertel’s evidence was self-validating, which makes his motivation to fabricate irrelevant....

Hertel may have been willing or even eager to lie in exchange for the dropping of the burglary charges. But we know that he didn’t lie. We know this because he revealed details of the crime that, with just a few exceptions, he could have learned only from the murderer.... There is no reasonable possibility that Hertel simply made up the facts that he recounted to the police and that his fabrication just happened to correspond to the truth. The odds against such a coincidence between fiction and fact are astronomical.

Particular Issues -- Exculpatory Evidence -- Disclosure During Trial
Reynold C. Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)
For Moore: James Rebholz
Here, even assuming the material qualifies as being “favorable,” it appears that Mr. Moore’s counsel was able to use the prior inconsistent statements and perform an effective cross-examination of Jones. Although the prosecution “delayed” giving the information to Mr. Moore, “defense counsel was able to make good use of the impeaching evidence in his vigorous cross-examination of the prosecution witness” and thus “the defendant’s due process rights were not violated” because there “is nothing in Brady . . . to require that such disclosures be made before trial.” Allain, 671 F.2d at 255. ...

Particular Issues -- Evidence

Particular Issues -- Evidence -- Coerced Statement of Witness

Evidence -- Coerced Statement of (Prosecution) Witness
Stanley A. Samuel v. Frank, 7th Cir No. 07-1243, 5/12/08, denying relief, in State v. Samuel, 2002 WI 34
For Samuel: Robert A. Henak
Issue/Holding: (After cataloging split among lower courts on applicable standard for admissibility:)
Whether the Wisconsin Supreme Court was right or wrong to refuse to extend the bar against the use of a defendant’s coerced statement to that of a nondefendant witness, the court was not unreasonable in refusing to do so; and reasonableness is the test.


The authorities responsible for the welfare of Tisha’s baby had a legitimate concern with her failure to cooperate with the criminal investigation of the defendant. They were entitled to express that concern to her, so that she could make an informed decision whether to cooperate, knowing that her failure to do so would be weighed in the balance that would determine whether she would obtain custody of the child. Inevitably that concern and the expression of it nudged her toward cooperation and hence to making the statements that incriminated the defendant. The threat of losing her baby was in the background, but it emanated primarily from the circumstances of Tisha’s weeks on the run while pregnant, rather than from police misconduct. Or so the state courts could conclude without being thought unreasonable. Cf. Johnson v. Trigg, 28 F.3d 639 (7th Cir. 1994).

Particular Issues -- Evidence -- Demeanor

Evidence -- Demeanor -- Need to Present Expert Testimony
Audrey A. Edmunds v. Deppisch, 313 F.3d 997 (7th Cir. 2002), habeas denied on review of State v. Edmunds, 229 Wis. 2d 67, 598 N.W.2d 290 (Ct. App. 1999)
For Edmunds: William H. Thies
Issue/Holding: On a charge of reckless homicide against a babysitter for the death of a child occurring under her care, exclusion of evidence of the parents' demeanor (guarded; nervous) while possibly "incorrect" doesn't support habeas relief. It was not unreasonable for the state trial judge to have required expert explication:
Edmunds might have tried to introduce expert evidence that the parents’ demeanor indeed fit a pattern that reputable research has shown to be indicative of lack of grief and consciousness of guilt, cf. Krist v. Eli Lilly & Co., 897 F.2d 293 (7th Cir. 1990), or she might have presented such evidence to the judge in an effort to persuade him that the lay testimony that Edmunds wanted to present would indeed have significant probative value. Cf. United States v. Hall, 165 F.3d 1095, 1120 (7th Cir. 1999) (concurring opinion). In the absence of such evidence, the demeanor evidence was—or so the trial judge could find without taking leave of his senses—too speculative to be admissible.

Particular Issues -- Expert Testimony

Joel Buie v. McAdory, 341 F.3d 623 (7th Cir. 2003)
Buie's principal argument is that the trial judge violated the due process clause by permitting an expert witness to overstate the strength of her conclusion....

According to Buie, the Constitution forbids any expert witness to misstate scientific conclusions in a criminal prosecution. It is far from clear that Pulling did this; she and the defense expert debated the accuracy of hair analysis, and Buie does not cite any scientific literature establishing that Pulling was in the wrong. "Reasonable degree of scientific certainty" is a plastic phrase. Let us assume, however, that Buie's expert had the better of the argument. Still, to obtain collateral relief, Buie must show that the state's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States". 28 U.S.C. §2254(d)(1). No decision of the Supreme Court "clearly establishes" that experts (or any other witnesses) must be right; the constitutional rule is that the defendant is entitled to a trial that will enable jurors to determine where the truth lies. That a witness may give false or mistaken testimony therefore is not an independent constitutional violation. See, e.g., Herrera v. Collins, 506 U.S. 390, 398-405 (1993). What the Constitution provides is assurance that evidence may be tested by cross-examination and by contrary proofs. Whether a given expert witness overstated her conclusion is mete for cross-examination, and no one impaired Buie's ability to elicit from her just how likely (or unlikely) a "reasonable degree of scientific certainty was in her vocabulary. The state paid for an expert witness to evaluate the issue and testify on behalf of the defense. See Ake v. Oklahoma, 470 U.S. 68 (1985).

Particular Issues -- Extraneous Misconduct

Particular Issues -- Evidence -- Extraneous Misconduct
Hammer v. Karlen, 342 F.3d 807 (7th Cir. 2003), habeas denied on review of State v. Edward A. Hammer, 2000 WI 92, 236 Wis. 2d 686, 613 N.W.2d 629
For Hammer: Rex Anderegg
... As Mr. Hammer has identified no Supreme Court precedent the courts of the State of Wisconsin may have applied unreasonably in permitting the admission of prior bad act evidence against him,3 relief must be denied as to the claim.
3 The court wishes to note that it, too, is unaware of any precedent the trial court may have applied unreasonably. As the Seventh Circuit Court of Appeals has remarked:
[W]hen the state merely fails to limit the prosecution’s evidence, the only constitutional principle to which the defendant can appeal is a catch-all sense of due process, and the appeal almost always fails. If the evidence is probative, it will be very difficult to find a ground for requiring as a matter of constitutional law that it be excluded; and if it is not probative, it will be hard to show how the defendant was hurt by its admission.
Watkins v. Meloy, 95 F.3d 4, 6-7 (7th Cir. 1996) (internal citations omitted).

Particular Issues -- Evidence -- Newly Discovered

Particular Issues -- Evidence -- Newly Discovered
Dale Basten v. Bertrand, 7th Cir. 03-2245, 11/20/03
(companion case to Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003))
On this claim, Basten must shoulder a heavy burden. Again he must show that the decision denying him a new trial was “contrary to” or an “unreasonable application of” Supreme Court precedent. And the Court has expressly held that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” Townsend v. Sain, 372 U.S. 293, 317 (1963). For claims based on newly discovered evidence to state a ground for federal habeas relief, they must relate to a constitutional violation independent of any claim of innocence. Herrera v. Collins, 506 U.S. 390 (1993). We have said that the “refusal to grant a new trial on the basis of newly discovered evidence is not actionable in habeas corpus.” Guinan v. United States, 6 F.3d 468, 470 (7th Cir. 1993). And further, we have said that
[w]here the “newly discovered evidence” consists of witness recantations of trial testimony or confessions by others of the crime, most courts decline to consider it in the absence of any showing that the prosecution knowingly proffered false testimony or failed to disclose exculpatory evidence, or that petitioner’s counsel was ineffective.
Coogan v. McCaughtry, 958 F.2d 793, 801 (7th Cir. 1992). Recently we decided that Kellner’s “recantation” did not require a new trial for Reynold Moore. We again come to that conclusion....

The second basis for Basten’s claim is that there is new evidence that Wiener’s trial testimony was false and that Wiener was actually the killer.... (B)ecause Monfils’ murder was the result of a conspiracy, the fact that Wiener may have been involved in the murder does not mean that others were not involved.

Additionally, we note that there is nothing in the record to suggest that the prosecution had knowledge that either Kellner or Wiener might be testifying untruthfully at trial and, despite that knowledge, offered false testimony. There is no basis in this record to grant habeas relief based on this evidence.

Particular Issues -- Evidence -- Newly Discovered
Reynold C. Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)
For Moore: James Rebholz
Issue/Holding: Newly discovered evidence is generally not reviewable on habeas, but may in some situations be so compelling to require a new trial as a matter of due process. In this instance a witness' recantation was not found by the state court to create a reasonable probability of different result on retrial, a determination neither contrary to nor unreasonable application of clearly established Supreme Court precedent.

Particular Issues -- Polygraph

Jeremy Armstrong v. Bertrand, 336 F.3d 620 (7th Cir. 2003), habeas denied on review of unpublished decision of Wis. court of appeals
For Armstrong: Angela C. Kachelski
Issue/Holding: State court ban on evidentiary use of polygraph result (here, in support of motion to suppress statement) was not contrary to U.S. v. Scheffer, 523 U.S. 303 (1998).
But, somewhat discordantly, testimony about "statements implying the results of a polygraph or similar test" doesn't violate due process, Maldonado v. Wilson, 6th Cir No. 03-4528, 7/15/05, citing among other authorities, Escobar v. O'Leary, 943 F.2d 711, 720 (7th Cir. 1991). Also see, Thornburg v. Mullin, 10th Cir No. 04-6086, 9/8/05 and cases cited (habeas review: not unreasonable for state court to conclude that single, glancing reference to polygraph wasn't so prejudicial as to deny due process; "Scheffer does not stand for the proposition that the introduction of polygraph evidence necessarily constitutes constitutional error").

Particular Issues -- Right to Present

Particular Issues - Evidence - Right to Present - Independent Psychological Examination of Complainant
Joseph F. Rizzo, Jr., v. Smith, 528 F.3d 501 (6/9/08); denying habeas relief in: 2002 WI 20; and 2003 WI App 236
For Rizzo: Terry W. Rose
Issue: Whether the state court's refusal to compel an independent psychological examination of the sexual assault complainant was an unreasonable application of Chambers v. Mississippi.
The court’s conclusion, we think, was entirely reasonable. Chambers and Ake say that a defendant’s right to present evidence is not absolute and that states retain the right to establish criminal trial procedures. And Maday makes it clear that denying a defendant’s request for an independent examination is within the discretion of Wisconsin trial courts unless a compelling need is shown. The state court of appeals ruled that the trial court properly exercised its discretion when it found that Rizzo had not demonstrated a compelling need for a psychological examination of Daphne. Specifically, the court of appeals held that “Rizzo failed to demonstrate that a psychological examination of the victim is necessary for his expert to develop opinion testimony that would counter the State’s Jensen evidence concerning delayed reporting.” Rizzo, 672 N.W.2d at 164. Rizzo characterizes this conclusion as “speculation and conjecture,” but he ignores the fact that, on cross-examination, Dr. Ackerman admitted that he did not need to personally examine Daphne to opine as to why she would not immediately report a sexual assault. In light of this testimony, we cannot say that the court of appeals’ decision was an unreasonable application of established Supreme Court precedent.
Particular Issues - Evidence - Right to Present - Innocent Explanation for Hymenal Tear, Child Sexual Assault - Expert Testimony Necessary
Chas Simonson v. Hepp, No. 07-4079, 12/9/08, denying relief on review of unpublished COA opinion
Issue/Holding: State court holding, that expert testimony was necessary to provide an innocent explanation for the child sexual assault victim's hymneal tearing, was not objectively unreasonable:
Under the federal and state rules of evidence alike, expert testimony is appropriate if “specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue . . . .” Fed. R. Evid. 702; Wis. Stat. § 907.02. Although these rules do not require expert testimony— they only say when it is permissible—they point to a basic truth of trial practice: expert testimony is often needed to eliminate speculation. See, e.g., Owen v. General Motors Corp., 533 F.3d 913, 924 (8th Cir. 2008); United States v. Han, 230 F.3d 560, 564 (2d Cir. 2000). Preventing speculation is undoubtedly a legitimate state interest, and excluding evidence in the name of that interest did not abridge Simonson’s right to present a defense in this case. The state appellate court’s decision to this effect was neither contrary to nor an unreasonable application of clearly established federal law.
Note the existence of authority that exclusion of expert testimony isn't reviewable on habeas under a right-to-present-defense theory, Moses v. Payne, 9th Cir No. 07-35468, 1/30/09. The 7th didn't take that route in Simonson; to the contrary, by reaching the merits of the claim, the court at least inferentially deemed it cognizable on habeas review.
Particular Issues -- Evidence -- Right to Present -- Therapist's Privilege
Joseph M. Malinowski v. Smith, 06-3075, 11/27/07, denying relief in unpublished state COA decision
Issue/Holding: State court refusal to admit a school counselor's testimony about sessions with the complaining witness, proferred to impeach her testimony, wasn't contrary to clearly established federal law.
Particular Issues -- Evidence -- Right to Present -- Rape-Shield / Impeachment
Anthony Horton v. Litscher, No. 05-1008, 10/26/05
For Horton: Melinda A. Swartz, SPD, Milwaukee Appellate
Issue/Holding1: Horton's right to present a defense, against a charge of sexual assault of child, was not violated by pecluding him from introducing evidence that she had admitted to her friends that she had had sex with someone else 4 or 5 times in contradiction to her testimony that it had only been one time:
... In sum, the trial court merely prohibited the defense from “add[ing] extra detail” to the claim of bias, which does not implicate constitutional guarantees. United States v. Sasson, 62 F.3d 874, 883 (7th Cir. 1995) (distinguishing between a complete bar on the introduction of testimony on a witness’ bias and adding mere detail to evidence already in the record) (citations omitted); see also Wade v. Mantello, 333 F.3d 51, 60 (2d Cir. 2003) (“The Constitution leaves to the judges who must make [evidentiary] decisions ‘wide latitude’ to exclude evidence that is ‘repetitive . . . , [or] only marginally relevant.’ ”) (citations omitted). ...
The Wisconsin trial court also prohibited Trina Horton from testifying that, upon learning of Jessica’s pregnancy, she threatened to disclose this information to Jessica’s mother if Jessica did not do so within five days....

Mr. Horton presents a strong argument that at no other time during the trial did he have the opportunity to demonstrate the effect of the ultimatum on Jessica’s decision to accuse him of sexual assault....

... However, there was substantial evidence before the court that Jessica had a motive to lie to her mother. ...

Therefore, although Trina’s testimony that Jessica was given a five-day deadline by which to tell her mother of her pregnancy, and therefore reveal her relationship with Mr. Horton in order to avoid revealing her relationship with Randy, would have helped the defense’s case, the matter of Jessica’s motive to lie to her mother was sufficiently developed by the defense through other means. ...

Particular Issues -- Evidence -- Right to Present
Tyrone Hood v. Uchtman, No. 04-1580, 7/8/05
Issue/Holding: Proffered theory of 3rd-party guilt properly rebuffed by state court:
In contrast to Chambers, Hood offered no evidence that tied Morgan Sr. to the murder scene or otherwise connected him to the crime. ... Morgan Sr.’s conviction and a possible motive do not directly link him to the crime. Hood’s case is therefore distinguishable from the defendant in Chambers, who had reliable evidence in the form of multiple admissions by another individual that he was the actual killer. ... Rather, the court, for good reason, found the evidence at issue to be speculative, remote, and therefore irrelevant, and it applied the state evidentiary rules accordingly.
Particular Issues -- Evidence -- Right to Present
Linnell Harding v. Sternes, No. 03-2672, 8/23/04
The state court determined that a subsequent car theft was a “collateral issue not germane to the issues before the court” without some “connection” or “nexus” between the two car thefts. R.32, Ex.K at Z-19 to Z-30. Therefore, it excluded the evidence under the Illinois equivalent of Federal Rule of Evidence 404(b). Rule 404(b) is not unconstitutional and therefore Illinois’ equivalent is not unconstitutional. See Edmunds v. Deppisch, 313 F.3d 997, 999 (7th Cir. 2002). Its restrictions are not disproportionate to the purposes they are designed to serve. Accordingly, “if [the state court’s] ruling is reasonable, then there is no basis for deeming it unconstitutional.” Id. Here, the state court’s decision is reasonable; it is based on clear differences between the carjacking in this case and Jordan’s carjacking. The two carjackings took place at different times of the day, in different locations and with a different number of victims. Furthermore, here, the victim was threatened with a real gun whereas Jordan supposedly had used a toy gun. Therefore, we conclude that the state court’s application was reasonable and that the interests served by the Illinois Equivalent of Rule 404(b) “justify the limitation imposed on the defendant’s constitutional right to testify.” Rock, 483 U.S. at 56.
Particular Issues -- Evidence -- Right to Present
Michael L. Johnson v. Bett, 7th Cir. 02-4190 / Dale Basten v. Bertrand, 7th Cir. 03-2245, 11/20/03, on habeas review of State v. Basten / Johnson, Wis COA 97-0918-CR / 97-0919-CR, 2/27/98
Next, the defendants present claims that the exclusion of certain evidence violated their constitutional rights, including the right to present a defense. The question for us is whether the exclusion of this testimony violated the Constitution in a manner clearly prohibited by the Supreme Court. We must start with the proposition that the Constitution recognizes the right of a criminal defendant to present evidence in his defense. Chambers v. Mississippi, 410 U.S. 284 (1973). That right, however, is not unlimited and is subject to reasonable restrictions. Taylor v. Illinois, 484 U.S. 400 (1988). The states have broad latitude to establish rules excluding evidence so long as the rules are not arbitrary or disproportionate to the purpose they are designed to serve. The exclusion of evidence is unconstitutionally arbitrary or disproportionate only in circumstances in which it has infringed on a weighty interest of the accused. Rock v. Arkansas, 483 U.S. 44 (1987).
Exclusion of expert testimony about repressed memory "and about how Wiener's [a prosecution witness's] claim of repressed memory stacked up with other cases" was supportable:
... The jury would not need expert testimony to discredit Wiener’s account of how he happened to remember seeing Basten and Johnson carrying something.... that Wiener remembered seeing the men all along but was afraid to say anything because of the danger of retaliation....
But see Ferensic v. Birkett, 6th Cir No. 06-2342, 9/4/07 (exclusion of expert testimony on eyewitness ID violated right to present defense).
Particular Issues -- Evidence -- Right to Present
Dale Basten v. Bertrand, 7th Cir. 03-2245, 11/20/03, on habeas review of State v. Basten, Wis COA 97-0918-CR, 2/27/98
Issue/Holding: A state's witness testified that Basten had referred to another witness as a "fuckin' squealer"; Basten wanted to testify that he had actually said, "fuckin' killer" -- because that witness had killed Basten's brother; the state court's refusal to allow Basten to testify beyond a claim "that he had 'said something else'" is upheld:
The Wisconsin Court of Appeals affirmed the reasoning of the trial judge that the evidence was highly prejudicial and that its probative value, given what Basten was allowed to testify to, was low. The Wisconsin courts walked a tight line on this issue, but we cannot say that its resolution violated Basten’s rights. Labeling Wiener a murderer could easily have prejudiced the jurors and caused them to think that perhaps Wiener was responsible for Monfils' death as well. Basten’s testimony that he did not say "squealer" refutes the testimony without injecting confusing and prejudicial collateral evidence into the already lengthy proceedings.
Particular Issues -- Evidence -- Right to Present
Reynold C. Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)
For Moore: James Rebholz
... The state court found that the computer-generated version would mislead the jury because it did not accurately account for possible movement by persons or for placement of objects in the room. The fact that the video failed to account for essential variables and thus might mislead the jury is a “valid state justification” for having excluded the evidence. Crane, 476 U.S. at 690.

Particular Issues -- Evidence: Voice Sample

Particular Issues -- Voice Sample -- Refusal to Provide, Adverse Inference
Alphonso Hubanks v. Frank, 04-1043, 12/22/04
For Hubanks: Robert J. Dvorak
...Like the defendants in Wade and Muniz, Hubanks was ordered to make a statement so that the physical properties of his voice could be assessed. Therefore, his speech would not have been protected because it would not have been testimonial....

Since the court-ordered voice sample would have constituted non-testimonial, and thus unprotected, speech, the court was free to instruct the jury that it could give Hubanks’ declination to provide the sample the weight it deserves. The appeals court acknowledged Griffin v. United States, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which forbids comment on the accused’s silence or instructions by the court that silence is evidence of guilt, but was reasonable in distinguishing Griffin from situations involving non-testimonial speech. Consequently, the jury instructions here were accurate and did not violate Hubanks’ Fifth Amendment rights. Moreover, the trial court had no duty to include in its jury instructions Hubanks’ proposal for an incourt lineup, so its refusal to do so was not unreasonable.

As a final matter, Hubanks argues that we should take into account that, at the time he was ordered to give a voice sample, some of the words he was ordered to recite had not yet been admitted into evidence. We agree with the court of appeals that Hubanks has procedurally defaulted this claim by not raising it at trial. Therefore, we decline to address it.

Particular Issues -- Fourth Amendment Suppression (Stone v. Powell)

Particular Issues - Fourth Amendment
Obadyah Ben-Yisrayl v. Buss, 07-2151, 8/28/08
Ben-Yisrayl claims that he was deprived of a full and fair opportunity to litigate his Fourth Amendment claim because the Indiana Supreme Court failed to apply the relevant constitutional case law to the facts. He argues that the Indiana Supreme Court failed to address Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), a case which, he now points out, he presented to every Indiana court he faced in the course of his direct appeal. But therein lies the rub: Ben-Yisrayl had the full opportunity to litigate his claim and argue the relevant Supreme Court precedent, including Brown, at every stage of his proceedings in Indiana. There is no indication that the Indiana courts precluded that right. Regardless of our own judgment of whether Brown has any impact on Ben-Yisrayl’s case, he received a full and fair hearing on this issue, and we will not second-guess the Indiana Supreme Court’s reasoning. See Watson, 481 F.3d at 542; Hayes, 403 F.3d at 939 (“[Petitioner] simply asks us to disagree with the state courts’ decision, a path that Stone closes.”); Cabrera, 324 F.3d at 531-32.
Particular Issues - Fourth Amendment
Cabrera v. Hinsley, 324 F.3d 527 (7th Cir. 2003)
... Absent a subversion of the hearing process, we will not examine whether the judge got the decision right. But we continue to believe that we would be wrong to close our eyes entirely to possible abuses and to say simply that Stone applies if the State allows motions to suppress evidence to be brought, never mind that a particular judge undermined the process in some disturbing way. In short, “full and fair” guarantees the right to present one’s case, but it does not guarantee a correct result.
See also Brian Miranda v. Leitch, No. 02-3452, 1/20/05 (to effect that to overcome Stone, state court's finding "was so gravely mistaken, in view of the record evidence, as to suggest that [it] was unwilling to engage in a good faith review of [the] Fourth Amendment claim."

Particular Issues -- Guilty Plea

Particular Issues -- Guilty Plea -- Direct Consequence: Maximum Sentence
Andrew Lockhart v. Chandler, No. 04-3223, 5/4/06
Issue/Holding: Claimed failure to know that a term of mandatory supervised release would follow the prison term is not cognizable on habeas, because the Supreme Court has never held that a defendant must be furnished with information about parole eligibility in order for the guilty plea to be voluntary.
Particular Issues -- Guilty Plea -- Understanding Elements
Marvin Simelton v. Frank, No. 05-2227, 5/1/06, denying relief in summary order
Issue/Holding: Guilty plea colloquy in which Simelton expressly acknowledged that lack of consent was element of sexual assault defeated his argument that his protestations of innocence at his subequent sentencing demonstrated lack of understanding of this element:
We cannot find it unreasonable for the Wisconsin Court of Appeals to hold Simelton to the admissions made at his guilty plea notwithstanding his later attempt to mitigate culpability at sentencing. Our cases, in fact, routinely hold that admissions of criminal conduct made during a guilty plea are taken seriously and presumed to be true, e.g., United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002) (citations omitted), and that bare protestations of innocence made after the formal entry of a guilty plea are insufficient to render a plea invalid, United States v. Carroll, 412 F.3d 787, 792 (7th Cir. 2005).
Particular Issues -- Guilty Plea -- Direct Consequence: Maximum Sentence
Lawrence Dalton v. Battaglia, No. 03-3982, 3/23/05
Although the Supreme Court has not defined the “direct consequences” of a guilty plea, it must have intended this term to encompass the maximum sentence for which a defendant is eligible. Compare Fed. R. Crim. P. 11(b)(H)- (M); Ill. S.Ct. Rule 402(a)(2). We can imagine no consequence of a defendant’s guilty plea more direct, immediate, and automatic than the maximum amount of time she may serve as a result of her plea. ... We conclude that the potential length of the sentence is one of the “direct consequences” to which the Supreme Court referred in Brady; thus, if Dalton was unaware of his eligibility for an extended term sentence when he pleaded guilty, it would be an unreasonable application of Brady to find that his plea was knowing and voluntary.
The court doesn't reach the merits of Dalton's claim; rather, given the somewhat unusual circumstance of a destroyed court record, the court remands for an evidentiary hearing.

Particular Issues -- Harmless Error

Particular Issues - Harmless Error - Jury Instructions
Hedgpeth v. Michael Robert Pulido, USSC No. 07-544, 12/2/08
Issue/Holding: Invalidity of one of multiple theories embodied by general verdict of guilt doesn't result in "structural" error, but is instead subject to harmless-error analysis under Brecht v. Abrahamson, 507 U. S. 619, 623 (1993) ("whether the flaw in the instructions “had substantial and injurious effect or influence in determining the jury’s verdict'”).
Particular Issues - Harmless Error - Miranda Violation
Eric Smiley v. Thurmer, 7th Cir No. 07-2901, 9/5/08 granting relief on review of unpublished direct-appeal opinion; and unpublished collateral-attack opinion
For Smiley: Rex R. Anderegg
Issue/Holding: Erroneous admission of statement, which discredited theory of defense, contributed to conviciton.
Particular Issues - Harmless Error - Generally
Jeffrey D. Burr v. Pollard, No. 07-4031, 10/15/08; denying relief in, unpublished opinion
... Just two terms ago, the Supreme Court held that under AEDPA a federal habeas court is to apply the more forgiving “substantial and injurious effect” standard from Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), when it identifies a constitutional error, regardless of whether the state court recognized the error and reviewed it for harmlessness beyond a reasonable doubt under Chapman. Fry v. Pliler, 127 S. Ct. 2321, 2328 (2007). So the standard varies depending on whether the challenge is made on direct appeal or collateral review, and the state court made no mistake when it applied Chapman. ...
Particular Issues - Harmless Error - Sentencing: Inaccurate Information
Jeffrey D. Burr v. Pollard, No. 07-4031, 10/15/08; denying relief in, unpublished opinion
... the question for us is whether the trial judge’s consideration of a stricken statement in the PSR had a “substantial and injurious effect” on Burr’s sentence. It did not. The judge’s reference to Burr’s history as a bully was little more than an afterthought; the judge considered a number of factors in reaching his decision, but the driving force was the brutal nature of the beating and subsequent murder, not Burr’s run-ins with a particular classmate in school. Burr’s attorney told us at oral argument that the bullying factor “had to have a substantial effect” on the eligibility date. But the record doesn’t compel that conclusion; instead it supports the state appellate court’s finding of harmless error. The district court properly denied habeas relief on this ground.
Particular Issues - Harmless Error - Limitation on Cross-Exmination
Antoine Toliver v. Hulick, No. 05-3712, 12/4/06
Issue/Holding: Any error limiting inquiry into the sole eyewtness's immigration status was harmless under the test of Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) where: the eyewitness's testimony "was not weak" and, "very importantly, Toliver confessed to the crime."
Particular Issues -- Harmless Error -- Prosecutorial Closing Argument Comment on Defendant's Right to Silence
Obadyah Ben-Yisrayl v. Davis, 431 F3d 1043 (7th Cir. 2005)
In summary, the evidence that the Indiana Supreme Court relied on is not overwhelming. In light of the state’s circumstantial case against Ben-Yisrayl, the jury’s decision as to guilt or innocence rested heavily on its determination of the reliability of Ben-Yisrayl’s confession. Without Ben-Yisrayl’s confession there would have been no conviction. In challenging Ben-Yisrayl to explain his confession to the jury, the prosecutor invited the jury to infer guilt from Ben-Yisrayl’s silence and to deem his confession reliable and accurate. The prosecutor’s improper closing statements, therefore, played a significant role in securing a guilty verdict. As such, we find that the constitutional error in this case is not harmless, and that the Indiana Supreme Court’s determination of harmless error in this case was an unreasonable application of clearly-established federal law.
Particular Issues - Harmless Error - Defendant's Appearance in Prison Garb
Bradley S. Whitman v. Bartow, No. 04-3112, 1/18/06, affirming unpublished decision of Wis COA
Issue/Holding: Even assuming that Whitman properly preserved an objection to his compelled appearance at trial in prison garb the error would be harmless, given overwhelming evidence of guilt.
The court, however, offers this caution:
Last, while Whitman’s appearance in prison garb was harmless in this case, it should be remembered that requiring a defendant to appear before a jury in prison clothing can detrimentally impact the outcome of a criminal trial. Prison clothing can serve as a “constant reminder of the accused’s condition” and may undermine the fairness of the proceedings. Estelle, 425 U.S. at 504-05. It would be well-worth a court’s time and expenses to keep extra suits at the courthouse for a defendant to wear, should he appear at trial in his prison-issued jumpsuit. Had the Price County Court in this case had an extra suit on hand, this lengthy and protracted litigation would not have been necessary. Nor would Whitman wonder if the jury convicted him for some other reason than its finding of factual guilt.
Particular Issues -- Harmless Error -- Involuntary Confession
Leonard Hinton v. Uchtman, 7th Cir. No. 02-2729, 1/26/05
... This court has previously held that the harmless error doctrine applies to alleged coerced confessions. Arizona v. Fulminate, 499 U.S. 279, 308 (1991); United States v. Alwan, 279 F.3d 431, 438 (7th Cir. 2002). When applying the harmless error doctrine on collateral review, we may only grant Hinton’s petition for a writ of habeas if we conclude that the admission of his confession “had substantial and injurious effect or influence in determining the jury’s verdict,” which it did not....
Particular Issues -- Harmless Error -- Impartial Jury
Theodore W. Oswald v. Bertrand, 7th Cir. No. 03-2092, 6/29/04, granting habeas relief on review of State v. Theodore Oswald, 2000 WI App 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting
But even if Oswald is certain to be convicted if he is retried, this cannot justify our reversing the grant of his petition for habeas corpus. Even a clearly guilty criminal is entitled to be tried before an impartial tribunal, something the jurors in this case may well have failed to understand.... It is one of the handful of rights of a criminal defendant that is not subject to the doctrine of harmless error. For others see Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986) (plurality) (racial discrimination in the selection of the grand jury); Waller v. Georgia, 467 U.S. 39, 49-50 and n. 9 (1984) (right to a public trial); McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8 (1984) (right to self-representation); Gideon v. Wainwright, 372 U.S. 335, 343-45 (1963) (right to counsel).
Also see Miller v. Webb, 6th Cir. No. 02-5907, 9/22/04 (similar situation in that no follow-up questions were asked of juror expressing partiality, though blame for this omission attributable to counsel rather than court):
Contrary to the Kentucky Court of Appeals’s decision, the decision whether to seat a biased juror cannot be a discretionary or strategic decision....

The “‘presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice.’” Hughes, 258 F.3d at 453 (quoting United States v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000) (citations omitted)). Therefore, because Miller’s trial counsel impaneled a biased juror, “prejudice under Strickland is presumed, and a new trial is required.” Id.

But compare, Sims v. Rowland, 9th Cir No. 03-17256, 7/20/05 (failure to investigate mere potential juror bias not structural error).
Particular Issues -- Harmless Error -- Racist Remarks
Ivory Smith v. Winters, 337 F.3d 935 (7th Cir. 2003)
We are mindful that a prosecutorial tactic that invokes or relies on racial prejudice, such as striking prospective jurors on racial grounds, is reversible error without regard to the effect on the outcome. ... But if the alleged displaying of swastikas to jurors be deemed a racist tactic, on the ground that Nazis are notoriously racist, still the appeal to racial prejudice was too attenuated to preclude a determination of harmless error under the normal standard, that of Brecht v. Abramson, 507 U.S. 619 (1993), applicable to state trial errors challenged by means of federal habeas corpus. ... It is not as if the prosecutor had been wearing a white hood and singing “The Old Rugged Cross.” ... A prejudiced remark or its symbolic equivalent is not a per se ground for reversal, as the cases we have just cited show and others as well.... Even if as we doubt the swastika incident actually occurred, still it was harmless so far as the outcome of the trial was concerned.

Particular Issues -- Incest

Particular Issues -- Incest
Allen A. Muth v. Frank, No 03-3984, 6/22/05
Lawrence did not announce, and Muth does not seek to have this court find retroactive, a new procedural rule. Lawrence held that a state cannot enact laws that criminalize homosexual sodomy. Lawrence is a new substantive rule and is thus retroactive. Anderson v. Morrow, 371 F.3d 1027, 1033 (9th Cir. 2004). Accordingly, an adult imprisoned for violating a state’s sodomy law (provided that person’s conduct took place with another consenting adult) would be eligible for a writ of habeas corpus. If it would be unconstitutional to punish a person for an act that cannot be subject to criminal penalties it is no less unconstitutional to keep a person in prison for committing the same act....

Muth, however, is not in prison for homosexual sodomy. The ultimate question then is not whether Lawrence is retroactive, but, rather, whether Muth is a beneficiary of the rule Lawrence announced. He is not. Lawrence did not address the constitutionality of incest statutes....

Lawrence also did not announce, as Muth claims it did, a fundamental right, protected by the Constitution, for adults to engage in all manner of consensual sexual conduct, specifically in this case, incest....

... (W)e conclude that Lawrence did not announce a fundamental right of adults to engage in all forms of private consensual sexual conduct.

Followed, People v. Scott, Cal App No. E039093, 2/14/07 ("there is a rational basis for criminalizing incest, specifically between consenting adults of the opposite sex who are related by consanguinity (e.g., fathers and daughters) as the present case involves").

Particular Issues -- Judicial Bias

Particular Issues -- Judicial Bias -- Taking Bribes: "Compensatory Bias"
Anthony Guest v. McCann, No. 04-3736, 1/18/07
The gravamen of Guest’s judicial bias claim is that as Operation Greylord approached a climax and Judge Pompey became aware of his possible indictment, he sought to bolster his conviction statistics by exhibiting bias against the defendants in certain of his cases in which he had not accepted bribes....

... The petitioners in Bracy asserted the same type of compensatory bias theory asserted here by Guest.... We observed that a petitioner pressing a judicial bias claim must demonstrate that the judge was “actually biased in petitioner’s own case.”

Bracy dictates that Guest’s claims must fail....

Particular Issues -- Judicial Bias
James P. Harrison v. McBride, 04-1398, 10/27/05
Issue/Holding: Trial judge's alleged involvement with potential witnesses and events, established personal, disqualifying bias.
Moreover, through his actions, Judge Redwine exhibited the very interest that defense counsel had identified. Judge Redwine demonstrated that he was willing to forsake the role of impartial arbiter and instead assume the role of advocate in establishing that he had no involvement with Greathouse and Hanmore. Having been apprised of the nature of the alleged conflict of interest, Judge Redwine transformed the hearing on the change-of-judge motion into a proceeding to vindicate "the credibility of this Court."
Also see: Lyell v. Renico, 6th Cir No. 04-1106, 12/1/06 (habeas relief granted due to judicial intervention amounting to bias, court observing: "Difficult as this standard may be to reach, the trial judge seemingly made every effort to satisfy it."). However: judge's loss of patience with defendant's tactics, expressed outside presence of jury, did not establsih judge's personal interest in outcome, James T. Lockheart v. Hulick, 7th Cir No. 04-3754, 4/12/06.
Particular Issues -- Judicial Bias
Harrison Franklin v. McCaughtry, No. 03-1031, 2/24/05, granting habeas relief in unpublished opinion of Wis COA
Issue/Holding: The tripartite test for judicial bias (subjective inquiry answered by trial judge’s determination of own impartiality; objective examination as to whether reasonable person could question judge’s impartiality; and if partiality is established, whether it was harmless, see State v. Rochelt, 165 Wis. 2d 373, 477 N.W.2d 659 (Ct. App. 1991)) is inconsistent with controlling Supreme Court precedent:
… First, … the Supreme Court has decided that both actual bias and the appearance of bias violate due process principles. … Second, where there is a structural error, such as judicial bias, harmless error analysis is irrelevant.
There’s more to this case, of course, but the abiding lesson is that Wisconsin may no longer be able to shrug off plausible claims of judicial bias simply on the judge’s say-so (which seems to be the unifying theme of our judicial-bias cases). Rather than dwell on the particular facts of this case – which, after all, are probably somewhat idiosyncratic and unlikely to recur – it’s probably more productive to extract the animating idea of this case: prejudgment is tantamount to bias. The court doesn’t put it quite in those terms, but that seems to be the thrust given the court’s comments:
~ This is powerful circumstantial evidence that Judge Schroeder had pre-judged Franklin’s case.

~ The memorandum demonstrates that Judge Schroeder decided the issue of Franklin’s guilt long before trial. Therefore, the state appellate court unreasonably applied the Supreme Court’s bias rules to the facts of Franklin’s claim.

~ The problem arises when the judge has prejudged the facts or the outcome of the dispute before her. In those circumstances, the decisionmaker “cannot render a decision that comports with due process.”

Can the appearance of (as opposed to actual) bias rise to a reviewable claim of due process violation? Very rarely, according to Railey v. Webb, 6th Cir No. 06-5806, 8/26/08 ("the Supreme Court has set out only two (perhaps three), very specific, situations in which something less than actual bias — that being a significant probability of bias — is sufficient to violate a party’s constitutional right to due process"; strong dissent on this point, though).
Particular Issues -- Judicial Bias
Del Vecchio v. Ill. DOC, 31 F.3d 1363 (7th Cir. 1994), en banc (non-commercial link no longer available)
In short, bad appearances alone do not require disqualification. Reality controls over uninformed perception. Del Vecchio cites no case in which the Supreme Court has overturned a verdict on due process grounds based on a mere appearance of bias. Our court was correct in holding that "a litigant is not denied due process by either the 'appearance' of partiality or by circumstances which might lead one to speculate as to a judge's impartiality." Margoles v. Johns, 660 F.2d 291, 296 (7th Cir. 1981). When the Supreme Court talks about the "appearance of jus- tice," it is not saying that bad appearances alone require disqualification; rather, it is saying that when a judge is faced with circumstances that present "some [actual] incentive to find one way or the other" or "a real possibility of bias," a court need not examine whether the judge actually was biased. Id. at 297 (quoting Howell v. Jone, 516 F.2d 53, 57-58 (5th Cir. 1975)); Bradshaw, 796 F.2d at 102 (Gee, J., concurring). Absent the incentive for bias, however, disqualification is not required despite bad appearance.
This pre-AEDPA result was adopted by a post-AEDPA case, Johnson v. Carroll, 3rd Cir. No. 03-2101, 5/24/04.

Particular Issues -- Jury Instructions / Ex Parte Communications

Particular Issues - Jury Question to Judge - Input from Defense
Frazier Crockett v. Hulick, No. 06-4066, 9/8/08
Issue/Holding: Inability of court staff, for unknown reasons, to reach defense counsel for input responding to jury question, resulted in the question going unanswered; no cognizable issue is presented:
The Illinois Appellate Court first noted that it would have been improper for the trial judge to respond to the jury before contacting counsel, and the trial judge appropriately did not do so. This is consistent with the principle set forth by the Supreme Court in Rogers. The court then held that it is not error for a trial judge to fail to respond to a question by the jury if the jury reaches a decision before a response can reasonably be provided. Crockett does not cite a case in which the Supreme Court held the opposite on materially indistinguishable facts to show that this decision was “contrary” to Supreme Court precedent; nor does he show that the decision involved an “unreasonable application” through the appellate court’s unreasonable refusal to extend a rule to a context where it should have applied. Virsnieks, 521 F.3d at 713. In fact, he does not show that the decision was incorrect, let alone “so incorrect that it lies outside of the range of reasonable conclusions.” Jones, 525 F.3d at 503. Therefore, Crockett has not satisfied his burden under AEDPA. ...
Particular Issues - Jury Instructions - Lesser Included Offense, Failure to Submit: Not Cognizable
Donald Calloway v. Montgomery, No. 07-1148, 1/14/08
Issue/Holding: Given express Supreme Court declination to rule on whether failure to submit lesser offense in noncapital case violates constitution, issue isn't cognizable on habeas review.
As court notes (fn. 3), it has "previously analyzed this issue by looking at whether the omission of the instruction resulted in a fundamental miscarriage of justice"; to the extent those cases stand for the idea that the issue is reviewable they are necessarily overruled.
Particular Issues - Jury Instructions - Accident
Michael Charlton v. Davis, No. 05-2029, 2/28/06
Issue/Holding: Accident instruction is really just "surplusage," so that its omission doesn't violate due process.
For Charlton to claim that the shooting of Carpenter was an accident is simply another way of saying he did not act with the criminal intent required under Indiana’s murder statute. See Ind. Code § 35-42-1-1. If the jury thought Carpenter had received her fatal wound as the result of an accident, it could not have found, as it did, that Charlton intentionally shot her. Thus, as long as the jury was properly instructed on the elements of murder and the State’s burden to proof—which Charlton does not dispute— the substance of the accident instruction was covered by other instructions given, and its omission did not mislead the jury as to the law.
Though not dealing with instructional issues, State v. Carroll D. Watkins, 2002 WI 101 discusses interplay of accident and intent under Wisconsin law.
Particular Issues -- Jury Instructions -- Lesser Included Offense: Felony-Murder
Latosha Armstead v. Frank, 7th Cir. No. 03-3980, 9/8/04, denying relief as to unpublished opinion of Wis. court of appeals
For Armstead: Robin Shellow
In general, the failure of a state trial court to instruct the jury on a lesser offense does not implicate a federal constitutional question and will not be considered in a federal habeas corpus proceeding. However, the omission of an instruction regarding a particular offense may effectively result in a directed verdict, thereby implicating Sixth and Fourteenth Amendment rights. In a habeas action, the question is not whether the failure to instruct on a lesser included offense was correct or incorrect under state law, but rather whether failure to do so constituted a defect so fundamental that it results in a complete miscarriage of justice or omission inconsistent with the standards of fair procedure.
Reeves, 272 F.3d at 920 (internal citations removed).

We are not persuaded that the failure to instruct the jury on felony murder resulted in a miscarriage of justice.... It was not until Williams was in the process of strangling Brown that Armstead says she withdrew. This is not legally sufficient to prevent criminal liability for murder. Zelenka v. State, 266 N.W.2d 279, 288 (Wis. 1978). So, with the keystone of Armstead’s argument removed, she offers no other reason why the jury would have acquitted her of first-degree intentional homicide but convicted her of felony murder. There was no miscarriage of justice.

Particular Issues -- Jury Instructions -- Self-Defense
Jeremy Armstrong v. Bertrand, 336 F.3d 620 (7th Cir. 2003), habeas denied on review of unpublished decision of Wis. court of appeals
For Armstrong: Angela C. Kachelski
Issue/Holding: Because Armstrong was the initial aggressor, under Wisconsin law he had no right of self-defense, and trial court's refusal to give instructions on either perfect or imperfect self-defense was therefore neither contrary to, nor an unreasonable application of, clearly established federal law.
But see Jackson v. Edwards, 2nd Cir No. 03-2805 (failure to give justification instruction in nature of self-defense violated due process).
Particular Issues -- Jury Instructions -- Generally
Eaglin v. Welborn, 57 F.3d 496 (7th Cir. 1995) (en banc)
Issue/Holding: Claim of mere error in refusing to submit theory of defense instruction raises only matter of state-law error and isn't cognizable, Whipple v. Duckworth, 957 F.2d 418 (7th Cir. 1992) overruled in holding that 5th and 6th amendments entitle defendant "to have a jury instruction on any defense which provides a legal defense to the charge against him and which has some foundation in the evidence, 'even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.'" (See also Perruquet v. Briley, n. 1, 7th Cir. No. 02-2981, 11/17/04.)
Particular Issues -- Exculpatory Evidence -- Jury Exposure to Extraneous Information
Mark A Wisehart v. Davis, No. 04-1632, 5/10/05
Issue/Holding: Juror's understanding that defendant "had taken a polygraph test," albeit without indication of result, required new trial,
The court's holding is actually narrower than that: this possible exposure to extraneous information "was bad enough to require a hearing, however abbreviated, to determine what impact the news that he had taken the test had on the jury." However, no hearing was held and now, 20 years had passed since trial, and reconstruction would be too difficult to undertake.
Particular Issues -- Ex Parte Communications with Jury
Thomas O. Moore v. Knight, 7th Cir. No. 02-4257, 5/20/04
The Confrontation Clause of the Sixth Amendment provides defendants the right to be present at all critical stages of the criminal proceedings.... Illinois v. Allen, 397 U.S. 337, 338 (1970); Ellsworth v. Levenhagen, 248 F.3d 634, 640 (7th Cir. 2001). The Due Process Clause supplements this right by protecting the defendant’s right to be present during some stages of the trial where the defendant’s ability to confront a witness against him is not in question—ex parte communications between the judge and jury fall into this category. United States v. Gagnon, 470 U.S. 522, 526 (1985). Such communications between the judge and jury will violate the defendant’s right only when the defendant’s presence, “has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” Id. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). Specifically, we look to see if the communications had a prejudicial effect on the defendant and rendered the trial “fundamentally unfair.” Ellsworth, 248 F.3d at 640.


... (S)pecifically at issue is the jury’s question regarding the time Moore arrived at his home on the night of the rape—a question that goes to the heart of his alibi defense. If it is the case that the jury was told there was no evidence in the record regarding this question, they were clearly conveyed incorrect substantive information....

(Court goes on to hold that state court's findings of facts were unreasonable, and that prejudice is presumed where 3rd party [bailiff, in this instance] has the ex parte contact.)

Particular Issues -- Jury Selection

Particular Issues - Jury Selection - Impartial Jury
Theodore W. Oswald v. Bertrand, 7th Cir. No. 03-2092, 6/29/04, granting habeas relief on review of State v. Theodore Oswald, 2000 WI App 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting
The nature of Oswald’s claim has now to be explained. The due process clause of the Fourteenth Amendment entitles a state criminal defendant to an impartial jury, Morgan v. Illinois, 504 U.S. 719, 726 (1992), which is to say a jury that determines guilt on the basis of the judge’s instructions and the evidence introduced at trial, as distinct from preconceptions or other extraneous sources of decision.... In addition—and this is critical—the clause requires the trial judge, if he becomes aware of a possible source of bias, to “determine the circumstances, the impact thereof upon the juror, and whether or not it was prejudicial.” Remmer v. United States, 347 U.S. 227, 230 (1954)....


The circumstances that we have narrated demonstrate a high probability that some, maybe all, of the jurors who tried Oswald were biased. It is not just what Klitzka said or what Schuenke said; those were merely the most dramatic indications that, as the judge obviously realized, the process of jury selection was being poisoned. The question is whether, given the indications of jury bias, the judge’s inquiry was adequate. From the case law we distill the principle that adequacy is a function of the probability of bias; the greater that probability, the more searching the inquiry needed to make reasonably sure that an unbiased jury is impaneled....

The inquiry he conducted did not satisfy that standard. Reminding the jurors not to discuss the case after they had been discussing it for four days was a case of closing the barn door after the horse had escaped. Questioning one of the bailiffs (and why just one?) was not likely to elicit much useful information about the mood and mindset of the prospective jurors. Allowing Oswald’s lawyer to question just three of the prospective jurors about conversations in the jury room was arbitrary, especially since by cutting off the questioning of Klitzka the judge had made clear that he wouldn’t permit follow-up questions. The bobtailed inquiry that the judge conducted flunked the constitutional test that “the investigation be reasonably calculated to resolve the doubts raised about the juror’s impartiality.” Dyer v. Calderon, 151 F.3d 970, 974-75 (9th Cir. 1998) (en banc) ... To repeat, the greater the doubts, the more probing the inquiry that is required.

The court stresses that ensuring impartiality is ultimately a judicial not advocacy function:
The fact that Oswald had a chance to present evidence at a postconviction hearing does not alter our conclusion that he was denied due process of law.... But as Dyer v. Calderon, from which we quoted earlier, makes clear, if the issue does surface during, or in this case before, trial, it is the trial judge’s responsibility to conduct an adequate investigation, given the unsatisfactory character of an inquiry into jury bias after the trial is over and the defendant convicted. ... Obviously if the problem arises or is discovered later, it must be dealt with later; that is all that cases like Rushen allow.
Contrast, Sims v. Rowland, 9th Cir No. 03-17256, 7/20/05 (to effect that judge not required to hold sua sponte evidentiary hearing whenever presented with some indication of juror bias).

Though not discussed by Oswald, there are two distinct types of juror bias, "actual" (or "subjective") and "implied" (or "objective"); clearly, the bias in Oswald was "actual" -- a predetermination of guilt. The distinction is worth keeping in mind because it remains unsettled whether implied / objective bias remains a viable constitutional basis for juror disqualification, see, e.g., Johnson v. Luoma, 6th Cir No. 04-1518, 10/12/05, and thus Oswald may be limited to actual / subjective bias. Even so, Dyer -- cited with approval by Oswald -- is an implied-bias case; yet, the juror's lies were so repeated and material as to "fatally undermine our confidence in her ability to fairly decide Dyer's fate," which suggests that at some point the distinction between subjective and objective bias becomes blurred.

Particular Issues - Jury Selection - Batson
Michael Franklin v. Sims, 06-4163, 8/14/08
Issue/Holding: Although the prosecution struck two black jurors, petitioner's Batson claim fails at the prima facie threshold:
But this was a small part of the appellate court’s analysis, and there is no evidence from the voir dire transcript that the trial judge himself improperly collapsed Batson’s three steps. In affirming the trial judge’s decision, the Illinois Appellate Court primarily relied on the fact that the State struck only two out of four African- American jurors of the thirty-six-person venire; that it used only two of its seven peremptory strikes against African- Americans; that at 16%, African-Americans were overrepresented on the jury given that they comprised 11% of the venire; and that the victim and two of the witnesses were also African-American. Factors such as these are widely recognized as appropriate and important considerations at Batson’s first step, even after Johnson, for determining whether an inference of discrimination has been raised. ...

Franklin argues that the Illinois Appellate Court should have focused on the fact that the State struck two of the three African-American panelists on the first six-person panel because it was at that point that the trial judge denied Franklin’s Batson motion. Franklin’s point is welltaken, but we cannot conclude it was unreasonable for the court to examine the entirety of the jury-selection process. Franklin does not point to any case that parses out the inquiry as he suggests, and both Johnson and Stephens countenance the methodology used by the Illinois Appellate Court.2 Cf. Johnson, 545 U.S. at 164; Williams, 432 F.3d at 1107-08; Stephens, 421 F.3d at 513-15; Holloway, 355 F.3d at 722.

Particular Issues - Jury Selection - Batson
Dwayne Coulter v. McCann, 06-2457, 4/20/07
Issue/Holding: Though petitioner established a prima facie case for discrimination in the striking of a number of African-American jurors, the state court's conclusion of no Batson violation wasn't unreasonable, given the nature of deferential review:
If we had conducted the original Batson hearing, it is possible that we may not have been as convinced by the record as the state trial court was in 1998, but that is not our role. Even though the state judge who presided over the 1998 hearing failed to explain her conclusions with respect to each and every challenged venireperson, that is not a reason to reject the outcome of the proceeding. As we have noted, “AEDPA’s requirement that a petitioner’s claim be adjudicated on the merits by a state court is not an entitlement to a well-articulated or even a correct decision by a state court.” Muth v. Frank, 412 F.3d 808, 815 (7th Cir. 2005). Here, the trial court judge explicitly stated that she considered the totality of the circumstances that applied to every peremptory strike. We take her at her word.
Particular Issues -- Jury Selection -- Batson
Lamon v. Boatwright, 7th Cir No. 05-4018, 11/8/06, affirming State v. Nancy R. Lamon, 2003 WI 78
Issue/Holding: Prosecutor's peremptory strike of only black on panel upheld, despite absence of any questioning of that juror:
In this appeal, Lamon argues that: (1) it is impossible to discern from the trial judge’s brief ruling whether he ever evaluated the prosecutor’s credibility—and the truthfulness of her explanation for her strike—as required under Batson’s third step, (2) even if the trial judge made a determination as to the prosecutor’s credibility, his conclusion should be disregarded because he ruled without questioning Bell individually, and (3) the trial judge erred in his factual finding that the strike was not discriminatory. ...

... But we can infer from the record that the trial judge engaged in the step-three inquiry: the court observed the prosecutor give her explanation, asked her several follow-up questions that were aimed at testing her credibility, allowed Lamon the opportunity to respond, and then ruled....

... Batson and its progeny direct trial judges to assess the honesty—not the accuracy—of a proffered race-neutral explanation....

Reflecting the limited nature of the inquiry, the procedures required in assessing counsel’s motive are limited as well. ... In that vein, there certainly does not exist any “clearly established” Supreme Court precedent suggesting that a party has the right to call stricken panelists as witnesses and question them during a Batson hearing....

... Lamon had the opportunity to discredit the prosecutor, and questioning Bell would not have further divulged whether the prosecutor sincerely doubted his veracity. ...

Lastly, we consider whether the trial court erred in finding that the strike was not discriminatory. ... This case is nothing like Miller-El II where a side-by-side comparison of the voir dire testimony revealed that the prosecutor’s reasons for striking black panelists applied with equal force to white panelists who were selected as jurors, Miller-El II, 125 S. Ct. at 2325-26, leading the Court to conclude that the prosecutor’s explanation “reeks of afterthought.” Id. at 2328. Much to the contrary, the check run on Bell’s address along with the vague answer given to the prior employment question rendered credible to the trial judge the prosecutor’s honest, even if possibly mistaken, belief that Bell would not have answered additional questions honestly.

Procedure on Batson challenge summarized: Dwayne Coulter v. McCann, 06-2457, 4/20/07.
Particular Issues -- Jury Selection -- Batson
Henderson v. Briley, 00-3834, 1/16/04
Issue/Holding: It is relevant on habeas review to "consider[] comparative data showing similarities between rejected black jurors and empaneled white jurors in determining the merits of a Batson claim," citing Miller-El v. Cockrell, 537 U.S. 322, 343 (2003). However, habeas relief is denied in view of great deference given state court results.
On a different Batson-related point, "mixed motive" prosecutorial strikes, i.e., proffers both inadmissible and neutral reasons for striking, see Kesser v. Cambra, 9th Cir No 02-15475, en banc 9/11/06 ("We hold that the California courts, by failing to consider comparative evidence in the record before it that undeniably contradicted the prosecutor’s purported motivations, unreasonably accepted his nonracial motives as genuine."). Where the prosecutor can't recall his or her reasons, the state can't meet its burden of proving a non-discriminatory basis for the strike(s), Yee v. Duncan, 9th Cir. No. 05-55265, 3/28/06.

Particular Issues -- Juvenile Procedure

Particular Issues -- Juvenile Procedure -- "Reverse Waiver"
Jeremy Armstrong v. Bertrand, 336 F.3d 620 (7th Cir. 2003), habeas denied on review of unpublished decision of Wis. court of appeals
For Armstrong: Angela C. Kachelski
Issue/Holding: Wis. Stat. § 938.183(2), which allows for the possibility, however, remote, of treating a juvenile as a juvenile though originally charged in adult court, survives constitutional challenge:
We agree with the state that the statute does not create such an irrebuttable presumption. Indeed, while the burden may seem impossibly high, some juveniles could hypothetically receive a juvenile disposition based on § 938.18(5)(a), (c) and (d). For example, subsection (a) takes into account, among other factors, the personality, mental health, previous record and pattern of living of the juvenile. Had the trial judge made findings on these criteria more favorable to Armstrong, it is possible that they would have outweighed the seriousness of Armstrong’s offense. The language of the statute, at least, does not forbid such a hypothetical balancing. Further, even if the application of the § 938.18(5) criteria always resulted in an adult disposition for juveniles charged with intentional homicide, it is not at all clear that the statutes would be unconstitutional. For one, Armstrong provides us with no case law suggesting that the state does not have authority to impose adult sentences on all juveniles charged with intentional homicide without a hearing to determine whether the juvenile should instead be given a juvenile disposition. Although we agree that the procedure laid out in § 938.183(2) might, in most cases, have a foreordained outcome for juveniles charged with intentional homicide, it is certainly preferable to have such a process to allow for the rare exception than to have no process at all. At least, Armstrong had an opportunity to present his case for a juvenile disposition and to appeal the unfavorable decision through the state courts.
(Nor is this procedure subject to vagueness challenge, which "can only be made against substantive statutes prohibiting specific conduct and not against procedural statutes.")

Particular Issues -- Notice of Charge

Notice of Charge -- Sufficiency of Charging Document, Dates and Times, Multiple Counts
Valentine v. Konteh, 6th Cir No 03-4027, 1/24/05
... Thus, an indictment is only sufficient if it (1) contains the elements of the charged offense, (2) gives the defendant adequate notice of the charges, and (3) protects the defendant against double jeopardy. While the federal right to a grand jury indictment has never been found to be incorporated against the states, see Hurtado v. California, 110 U.S. 516, 534-35 (1884), courts have found that the due process rights enunciated in Russell are required not only in federal indictments but also in state criminal charges. See ... Fawcett v. Bablitch, 962 F.2d 617, 618 (7th Cir. 1992) ....

This Court and numerous others have found that fairly large time windows in the context of child abuse prosecutions are not in conflict with constitutional notice requirements. See ... also Fawcett v. Bablitch, 962 F.2d 617, 618-19 (7th Cir. 1992) (six months)....

The problem in this case is not the fact that the prosecution did not provide the defendant with exact times and places. If there had been singular counts of each offense, the lack of particularity would not have presented the same problem. Instead, the problem is that within each set of 20 counts, there are absolutely no distinctions made....

The indictment, the bill of particulars, and even the evidence at trial failed to apprise the defendant of what occurrences formed the bases of the criminal charges he faced. Valentine was prosecuted and convicted for a generic pattern of abuse rather than for forty separate abusive incidents. States have the authority to enact criminal statutes regarding a “pattern” or a “continuing course” of abuse. They do not have the power to prosecute one for a pattern of abuse through simply charging a defendant with the same basic offense many times over.

Worth reviewing: Gautt v. Lewis, 9th Cir No. 03-55534, 6/6/07, on general principles informing "notice" analysis under 2254 habeas, especially re: "what sources may be used to determine whether a defendant has, in fact, been given adequate notice," a subject on which "the Supreme Court has written relatively sparingly."

Particular Issues -- Parole

Parole -- Life Sentence, Discretionary Parole -- No Right to Due Process Hearing (Pre-TIS)
Richard L. Grennier v. Frank, No. 05-3964, 7/5/06
Issue/Holding1: Review of denial of parole properly rests on 42 U.S.C. § 1883 (citing, Wilkinson v. Dotson, 544 U.S. 74 (2005)
It takes mandatory language (and thus an entitlement contingent on facts that could be established at a hearing) to create a liberty or property interest in an opportunity to be released on parole. See Greenholtz v. Inmates, 442 U.S. 1, 7-11 (1979); Heidelberg v. Illinois Prisoner Review Board, 163 F.3d 1025 (7th Cir. 1998) (Illinois parole system). We have never considered (in a published opinion, anyway) how Wisconsin’s parole system for offenders serving life sentences should be classified, but the subject is straightforward. We agree with the district court that Grennier lacks a liberty or property interest. See also Jones v. Puckett, 160 F. Supp. 2d 1016, 1023 (W.D. Wis. 2001). Accordingly he has no entitlement to a hearing under the due process clause. ...

... It follows that the state need not afford him hearings on any of the subsidiary factual questions—such as whether his offense was especially brutal, what risk of recidivism he would pose if released, and whether any of those new crimes might be sex offenses.

But see Dyer v. Bowlen, 6th Cir No. 04-5478, 8/30/06 (habeas petitioner entitled to hearing to determine whether applicaiton of post-crime parole standards worked increase in punishment).

Particular Issues -- Prison Discipline

Prison Discipline - "Habitual Offender" Punishment
Shavaughn Wilson-El v. Finnan, No. 07-2248, 9/12/08
Issue/Holding: An inmate may not challenge the underlying disciplinary convictions forming the predicate for "habitual offender" punishment.
Jail Disciplinary Hearing -- Revocation of Home Detention Privileges
Domka v. Portage County, No. 07-2984, 4/24/08
For Domka: Jeff Scott Olson Issue/Holding: Domka waived any right to raise a due process challenge to immediate loss of home detention privileges by dint of an agreement he signed authorizing immediate loss of privileges for violating its no-alcohol provision.
Noting its prior holding, in Paige v. Hudson, 341 F.3d 642 (7th Cir 2003) (removing probationer from home detention sufficient reduction in freedom to trigger due process protections), the court "save(s) for another day the narrow question of whether a prisoner—as opposed to a probationer, parolee or pre-parolee—has a liberty interest in a home detention program."
Prison Disciplinary Hearing -- No Substantive Due Process Right to Defense-of-Others Aaron B. Scruggs v. Jordan, No. 05-4238, 5/7/07
... But as we noted in Rowe, there is no precedent for a fundamental right to self-defense or defense of others in the criminal context, and certainly not in the context of prison disciplinary proceedings. 17 F.3d at 1052. Scruggs cannot establish a substantive due process right to use violence to defend another person.
Prison Disciplinary Hearing -- Adequacy of Written Statement of Reasons Aaron B. Scruggs v. Jordan, No. 05-4238, 5/7/07
We have repeatedly upheld the sufficiency of written statements that indicate only what evidence was relied on to make the decision, and why. ...

In Scruggs’s case, the CAB indicated what types of evidence it used to make its decision, and explained that Scruggs “admitted to striking [Robbins] ‘a couple of frantic hard hits’ w/ his cane,” and that Robbins was “summarily hospitalized.” App. Br. 25. This statement demonstrates that the CAB relied on Scruggs’s admission in making its determination, as well as the severity of the injuries he inflicted on Robbins. As the CAB has accepted Scruggs’s own version of events, it does not need to further explain the evidentiary basis for its ruling. The written statement issued by the CAB was sufficient to meet the demands of due process.

Prison Disciplinary Proceeding -- Habeas, Compared with § 1983
Larry Cochran v. Buss, 7th Cir. No. 03-3402, 8/24/04
Indiana state prisoners have a liberty interest in good time credits, and they are entitled to due process before the State may revoke those credits. See McPherson v. McBride, 188 F.3d 784, 785-86 (7th Cir. 1999). The disciplinary sanction, when viewed in its entirety, imposed upon Mr. Cochran affected both the duration of his confinement (at least potentially) and a condition of his confinement. We have explained previously that a prisoner challenging the fact or duration of his confinement must seek habeas corpus relief; a prisoner challenging a condition of his confinement, by contrast, must seek relief under 42 U.S.C. § 1983 ....


As far as the record in this case reflects, at the time Mr. Cochran filed his habeas petition, the prison disciplinary board could have revoked the suspended sentence of loss of good time credit and imposed a longer confinement than would have applied absent the disciplinary proceeding. Therefore, we believe that this distinct possibility of the loss of good time credits requires that his claim be cognizable in a habeas action rather than in an action under § 1983.

As this quote suggests, the 7th Circuit takes a mutually exclusive view of cognizability; this stark approach is a singular one among the circuits -- see Docken v. Chase, 9th Cir. No. 03-35187, 12/29/04 (that court taking the view that claim whose resolution could but not necessarily would impact fact / duration of confinement cognizable on habeas).

Compare, Wilkinson v. Dotson, 125 S.Ct. 1242 (2005) (parole procedure may be challenged under § 1983; test is whether "success in that action would necessarily demonstrate the invalidity of confinement or its duration"). Caselaw defining the boundary between habeas (which is subject to procedural hurdles but leads to release) and 1983 (generally not subject to procedural bars such as failure to exhaust but does not lead to release) typically arises in the context of prison discipline and parole. But the only necessary limits as to category of litigation are imposed by the limits of the litigant's creativity. For example, see Osborne v. District Attorney's Office, 9th Cir No. 04-35126 (1983 supports prisoner's postconviction request to compel state authorities to provide access to biological material for prisoner's DNA testing).

Prison Disciplinary Proceeding -- Due Process -- Right to Present Evidence
David Pannell v. McBride, 306 F.3d 499 (7th Cir. 2002)
... The Due Process Clause gives inmates a right to call witnesses and pre-sent documentary evidence at a hearing that results in an extension of their incarceration time by demoting their credit-earning class. Montgomery v. Anderson, 262 F.3d 641, 642 (7th Cir. 2001). But the right to present evidence is qualified --- prison officials may exclude evidence from an inmate's hearing to ensure institutional safety or correctional goals. Wolff, 418 U.S. at 566. Moreover, prisoners do not have the right to call witnesses whose testimony would be irrelevant, repetitive, or unnecessary. Id.; Forbes v. Trigg, 976 F.2d 308, 317-18 (7th Cir. 1992).
Prison Disciplinary Proceeding -- Due Process -- Right to Exculpatory Material
Clyde Piggie v. Cotton, 344 F.3d 674 (7th Cir. 2003)
However, Piggie also contends that having been excluded from the room, he was unable to show the CAB where on the videotape to look and, thus, was precluded from presenting evidence favorable to his defense. We have held that the rule of Brady v. Maryland, 373 U.S. 83 (1963), requiring the disclosure of material exculpatory evidence, applies to prison disciplinary proceedings. See Chavis v. Rowe, 643 F.2d 1281 (7th Cir. 1981). In Chavis, we explained that the function of the Brady rule in prison disciplinary proceedings, as in criminal cases, is twofold: to insure that the disciplinary board considers all of the evidence relevant to guilt or innocence and to enable the prisoner to present his or her best defense. See id. at 1286. Accordingly, an inmate is entitled to disclosure of material, exculpatory evidence in prison disciplinary hearings unless such disclosure would unduly threaten institutional concerns. Id. at 1285-86; see also Piggie, 277 F.3d at 925; Campbell v. Henman, 931 F.2d 1212, 1214-15 (7th Cir. 1991); Young v. Kann, 926 F.2d 1396, 1403 (3d Cir. 1991).
(Remedy is in camera inspection by district judge, to "answer one, and perhaps two, questions. First, did the state have a valid security reason for failing to disclose the tape and, second, if not, did the tape contain exculpatory information? Finally, if the answer to this second question is affirmative, was the error harmless?")

Particular Issues -- Prosecutorial Misconduct

Particular Issues - Prosecutorial Misconduct - Vindictive Prosecution
Clyde B. Williams v. Bartow, No. 05-4736, 3/20/07, denying relief in 2004 WI App 56
Given both that two Courts of Appeals have held that the bringing of unrelated charges stands outside the Blackledge-Thigpen presumption and that the factual circumstances of this case indicate legitimate reasons for adding charges related to separate incidents involving trial witnesses, we certainly cannot say that this decision of the Court of Appeals of Wisconsin lies so far outside the bounds of permissible interpretations of Supreme Court precedent to qualify as objectively unreasonable under Williams v. Taylor.

... Likewise, we must conclude that the Court of Appeals of Wisconsin did not apply clearly established federal law unreasonably in holding that the decision to add further charges following an unsuccessful attempt to obtain a plea also did not give rise to a presumption of vindictiveness....

The court relies on Bordenkircher v. Hayes, 434 U.S. 357 (1978) for the idea
that “in the ‘give-and- take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer.” ... In short, the Supreme Court has applied a presumption of vindictiveness “exclusively in the post-trial context,” United States v. Jarrett, 447 F.3d 520, 525 (7th Cir. 2006), and has specifically considered and rejected claims that a presumption is applicable when, following failed plea negotiations, additional charges are brought against a defendant.
Same: Joseph E. Corcoran v. Buss, No. 07-2093, 12/31/08 (presumption of vindictiveness exclusive to post-trial context, and thus inapplicable to pretrial, plea-bargaining process).
Particular Issues -- Harmless Error -- Prosecutorial Closing Argument on Burden of Proof
Jonathan Bartlett v. Battaglia, 7th Cir No. 05-1715, 6/21/06
Issue/Holding: Prosecutor's likening burden of proof to building the Eiffel Tower (after completing 30%, you can tell what it is) were not "so egregious that they deprived Bartlett of his due process right to be convicted only by proof beyond a reasonable doubt." The court "strongly disapprove(s) of the prosecutor's clumsy attempts to discuss the burden of proof," and holds that they were improper but, especially in light of proper instructions, declines to say that they were prejudicial.
Particular Issues -- Prosecutorial Misconduct -- Closing Argument -- Comment on Silence
Obadyah Ben-Yisrayl v. Davis, 431 F3d 1043 (7th Cir. 2005)
Issue/Holding: Prosecutor's challenge, "Let the defendant tell you" why his alleged confession wasn't valid was not, contrary to the state court, directed to defense counsel but to defendant himself. Thus, given that he did not testify, the comment amounted to an impermissible inference under the fifth amendment.
The facts of this case, reasonably construed, indicate that the jury could have believed that the prosecutor was arguing that, because Ben-Yisrayl failed to testify as to why he would confess to a crime that he did not commit, the inference is that his confession was voluntary and true. The prosecutor’s challenge to Ben-Yisrayl to explain his confession is closely analogous to the jury instruction that the Supreme Court expressly ruled unconstitutional in Griffin v. California....
Also see Girts v. Yanai, 6th Cir No. 05-4023, 9/5/07 (where defendant chose not to testify, prosecutorial closing argument -- "There has been no evidence offered to say that these people are incorrect" -- violated right to remain silent).
Prosecutorial Misconduct -- Napue/Berger
Reynold C. Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)
For Moore: James Rebholz
Mr. Moore’s final argument also relates to Jones’ changed testimony. Relying on Napue v. Illinois, 360 U.S. 264 (1959) and Berger v. United States, 295 U.S. 78 (1935), Mr. Moore argues that the prosecution’s conduct in “suggesting” that Jones may have seen a paper break rather than a turnover denied Mr. Moore due process. Napue stands for the proposition that a prosecutor cannot “knowingly use false evidence,” Napue, 360 U.S. at 269; Berger stands for the proposition that the prosecution cannot engage in “pronounced and persistent” misconduct and has a “duty to refrain from improper methods calculated to produce a wrongful conviction,” Berger, 295 U.S. at 88-89. The prosecution here did not knowingly introduce any false testimony by allowing Jones to change her time line. Jones testified that her reason for going to the factory and viewing the procedures and subsequently changing her time line was that she wanted to be as accurate as possible; moreover, she still testified that she was “unsure” as to which procedure she had seen. Also, the prosecution did not badger or harass or otherwise act improperly to procure this testimony, as was done in Berger. Consequently, we cannot conclude that Mr. Moore is entitled to relief on this basis.
Particular Issues -- Prosecutorial Misconduct -- Closing Argument
Alejandro Ruvalcaba v. Chandler, No. 04-1741, 7/20/05
A claim of prosecutorial misconduct must be evaluated according to the framework established by the Supreme Court in Darden v. Wainwright, 477 U.S. 168 (1986). The court first looks to the challenged comments to determine whether they were improper. If the comments were improper, the court then evaluates whether the defendant was prejudiced by the comments. ...

Although the state appellate court did not cite Darden, it applied the correct standard. The court principally concluded that the prosecutors’ comments were not improper under Darden’s first prong. Although we might not be as charitable if we were reviewing the matter as one of first impression, we would be hard-pressed to say that the Appellate Court of Illinois’ characterization of the prosecutors’ statements was unreasonable. In any event, the trial court’s action in sustaining the defense’s objection to one aspect of the prosecutors’ remarks went a long way toward curing any problem.

Particular Issues -- Public Trial

Public Trial
Johnnie Walton v. Briley, 01-2928, 3/17/04
...The first two sessions, which encompassed the prosecution’s entire case, were held in the late evening hours after the courthouse had been closed and locked for the night. Walton’s fiancée twice attempted to attend the trial and was twice prevented from doing so. A confidential informant involved in the case was also prevented from attending the trial because the courthouse was locked....

While criminal trials that are closed to the public are strongly disfavored, they are not forbidden. A party seeking to bar the court’s doors to the public must satisfy a four-part test: (1) the party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial, (2) the closure must be narrowly tailored to protect that interest, (3) alternatives to closure must be considered by the trial court, and (4) the court must make findings sufficient to support the closure. Id. at 48. The record of this case fails to show that the court even considered the four-part test. While this may be due to the fact that the closure was inadvertent and merely a result of trial court Judge Renya’s honorable desire to “get it done” (Supp. App. at 85), nevertheless, the judge’s devotion to work is not an interest sufficient to overcome Walton’s constitutional guarantee of a public trial.

... Whether the closure was intentional or inadvertent is constitutionally irrelevant.

... Because Walton need not show specific prejudice, these facts are sufficient to show a violation of Walton’s right to a public trial. Waller, 467 U.S. at 49-50.

And, because of its "fundamental" nature, "a right to a public trial may be relinquished only upon a showing that the defendant knowingly and voluntarily waived such a right."

Short but spirited discussion of value of right to public trial: U.S. v. Thunder, 8th Cir No. 04-3780, 12/22/06. Also see People v. Baldwin, Cal App No. C051402, 9/15/06 (violation of right to public trial when courtromm closed for testimony of 14-year old witness merely on prosecutor's say-so; "better course" would have been to hold evidentiary hearing, besides which trial court made no effort to balance the competing interests; error is structural).


  • Family members. Although the 2nd Circuit had held that "exclusion of family members requires stricter scrutiny than exclusion of the public," Rodriguez v. Miller, 2nd Cir No. 04-6665-pr, 2/17/06, that result was subsequently vacated after remand, and there is no longer support for "heightened" scrutiny; for that matter, the 2nd Circuit also had held in other cases that "a heightened standard" for exclusion of family members is not warranted, Yung v. Walker, 2nd Cir No. 03-2023-pr, 10/31/06 (further holding that remedy for inadequate findings in support of closure isn't necessarily new trial, but may include remand to state court to conduct evidentiary hearing on need for closure). Subsequently, the 2nd explictly held that "an inferior court may not justify a grant of habeas corpus relief under § 2254 by reference to such a heightened standard," Gibbons v. Savage, 2nd Cir No. 07-3306-pr, 1/28/09.
  • Triviality / Harmless Error. Acknowledging that denial of public trial is structural error, the 2nd has nonetheless carved out an exception for "triviality" analysis, Smith v. Hollins, 2nd Cir No. 03-2250-pr, 5/15/06 ("whether the closure subverts the values" protected by public trial, albeit found only in "rare circumstances"; also: state trial court's erroneous failure to make particularized findings leads to "evidentiary hearing to determine whether there is additional evidence supporting the closure"). Notwithstanding the "rare circumstances" nod, the 2nd went on to deem closure during an afternoon of voir dire a "trivial," and thus harmless, violation, Gibbons v. Savage, 2nd Cir No. 07-3306-pr, 1/28/09. Compare, Owens v. U.S., 1st Cir No. 05-1784, 4/12/07 (rejecting government claim of trivial closure: "However, this was not a mere fifteen or twenty minute closure; rather, Owens' trial was allegedly closed to the public for an entire day while jury selection proceeded.").
  • Ineffective Assistance. Purvis v. Crosby, 3rd Cir No. 04-14913, 6/6/06 (on ineffective assistance of counsel claim for failure to preserve objection to closure defendant must show prejudice -- reasonable probability of different result had courtroom remained open; obviously, such a showing is well-near impossible); disagreed with, Owens v. U.S., 1st Cir No. 05-1784, 4/12/07, fn. 14 ("As we have explained, this holding is in tension with the Supreme Court's pronouncement that prejudice is presumed in cases of structural error not because the risk of prejudice is high, but because it is impossible to determine the extent of the prejudice.").

Particular Issues -- Sentence

Particular Issues - Sentence - Inaccurate Information
Chas Simonson v. Hepp, No. 07-4079, 12/9/08, denying relief on review of unpublished COA opinion
Issue Whether the sentence was based on inaccurate information in the form of recidivist rates of "run-of-the-mill" child molesters relative to incestuous molesters.
The first problem with Simonson’s argument is that the sentencing judge here did not rely on any hard statistical data; he did not consult recidivism studies or charts but rather based his view on his own “experience” in these sorts of cases. The Supreme Court has rejected the idea that this is somehow improper. ...

But, for the sake of argument, let’s assume the sentencing judge actually considered hard statistics regarding recidivism by molesters of nonfamilial victims. The studies Simonson presented to the trial court when seeking postconviction relief, the same studies he cites to us, do tend to establish that child molesters in general are more likely to re-offend (or at least be convicted again) than incest offenders. However, they do not establish that conclusively, and, in any event, they also suggest that perpetrators like Simonson are likely to strike again. ...

In sum, we believe the sentencing judge did rely on something—his experience revealing that offenders like Simonson tend to have a high rate of recidivism—but Simonson has failed to prove that “something” was inaccurate. The state appellate court’s decision upholding the sentence, regardless of the rationale, was neither contrary to nor an unreasonable application of clearly established federal law.

Particular Issues - Sentence - Consideration of Lack of Remorse
Jeffrey D. Burr v. Pollard, No. 07-4031, 10/15/08; denying relief in, unpublished opinion
Issue/Holding: Though defendant's right to silence must be protected at sentencing as well as trial, sentencing may take into account lack of remorse:
... The line between the legitimate and the illegitimate, however, is a fine one. As we have recognized, “sometimes it is difficult to distinguish between punishing a defendant for remaining silent and properly considering a defendant’s failure to show remorse in setting a sentence.” Bergmann, 65 F.3d at 1379 (citing United States v. Johnson, 903 F.2d 1084, 1090 (7th Cir. 1990)). But this is not one of those difficult cases. Viewing the record in its entirety, it is plain that the judge was bothered by Burr’s lack of sympathy—which can be expressed in a variety of nonverbal ways—rather than his silence. The judge’s remark to Burr’s codefendants that Burr failed “to say one word in this court” only has force when viewed out of context. Considering the record as a whole, it was simply another way of noting Burr’s lack of remorse. Perhaps the judge could have chosen better words, but the Constitution is not violated by a mere slip of the tongue. Accordingly, the state appellate court’s decision rejecting this argument was neither contrary to nor an unreasonable application of federal law.
Particular Issues - Sentence - Inaccurate Information: Reliance on Subsequently Invalidated Convictions
Obadyah Ben-Yisrayl v. Buss, 07-2151, 8/28/08
Issue/Holding: Although the sentence was aggravated by two convictions that were subsequently vacated, it is nonetheless sustainable given a separate, "entirely proper aggravating circumstance:
Tucker comes closest to addressing the issue before the Indiana Court of Appeals, and was referenced, obliquely, by the district court. But Tucker examined a different issue than what is before us today. Where Tucker asked whether habeas relief should extend to a sentence based on “misinformation of constitutional magnitude” in the form of two previous invalid convictions, the question in this case is whether the relief should extend to a sentence based on an entirely proper aggravating circumstance. The Indiana Court of Appeals determined that the consecutive sentences could be based on the single aggravating circumstance of the double murders, exclusive of the two other invalid aggravators. It had the authority to make this determination under the Indiana Supreme Court’s decision in Hackett. 716 N.E.2d at 1278 (“When a trial court improperly applies an aggravator but other valid aggravating circumstances exist, a sentence enhancement may still be upheld.”). No Supreme Court case or ruling of our court has found that the rule in Hackett violates Tucker or Townsend in these circumstances. It follows, therefore, that the Indiana Court of Appeals did not act contrary to clearly established federal law, nor did they unreasonably apply this law, in upholding his sentence.
Particular Issues - Sentence - Enhancement - Judicial Determination ("Prior Conviction Excpetion" to Apprendi)
Donald Calloway v. Montgomery, No. 07-1148, 1/14/08
... In Shepard v. United States, 544 U.S. 13 (2005), the issue was what the trial judge could use to determine whether a burglary charge was for generic burglary—that is, burglary committed in an enclosed space—and thus would be a violent felony for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e). The Court concluded that the enquiry—made by the judge—was limited to “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” At 26.

The Illinois Appellate Court correctly stated and applied these principles in analyzing whether the mail fraud conviction was the equal of a conviction under Illinois law for theft by deception. The court looked to the statute and the plea agreement. It then properly looked to Illinois law to examine whether the facts would provide a basis for a charge of theft by deception. Because Illinois law specifically provides that a federal conviction that occurred in Illinois may be used to extend a sentence, see People v. Harden, 113 Ill. 2d 14 (1986), the court determined that there was no error in the use of the mail fraud conviction to extend Calloway’s sentence. And in making this determination, the court did not run afoul of Apprendi. Almendarez-Torres still lives.

Sentence -- Inaccurate Information
Lechner v. Frank, 341 F.3d 635 (7th Cir. 2003), habeas denied in State v. Lechner, 217 Wis.2d 392, 576 N.W.2d 912 (1998)
For Lechner: Craig Albee
A defendant who requests re-sentencing due to the use of inaccurate information at the original sentencing must show both that information before the sentencing court was inaccurate and that the sentencing court relied on the inaccurate information in the sentencing. United States v. Tucker, 404 U.S. 443 (1972); United States ex rel. Welch v. Lane, 738 F.2d 863, 865 (7th Cir. 1984). Because the state has conceded the inaccuracies, the only question here is whether the court relied on the inaccurate information concerning Lechner’s criminal record at sentencing. A sentencing court demonstrates actual reliance on misinformation when the court gives “explicit attention” to it, “found[s]” its sentence “at least in part” on it, or gives “specific consideration” to the information before imposing sentence. Tucker, 404 U.S. at 447; see also Townsend v. Burke, 334 U.S. 736, 741 (1948) (reversing sentence violating due process because it relied upon “materially untrue” assumptions).
(Relief denied where sentencing court, though misconstruing prior police contacts as actual convictions, did not use them as convictions but, instead, for their "underlying conduct," namely alcohol abuse.)

Particular Issues -- Self-Representation / Faretta Rights

Particular Issues -- Competency to Waive Counsel
Eddie L. Brooks v. Mccaughtry, 7th Cir. No. 02-4324, 8/12/04
... He contends that anyone competent to stand trial, as he was, is ipso facto competent to waive counsel....

... Brooks argues that in Godinez v. Moran, 509 U.S. 389 (1993), the Supreme Court held that the standard for competence to stand trial and the standard for competence to waive counsel are identical ....


Wisconsin, as this case illustrates, has set a higher standard for waivers of the Faretta right than for competence to stand trial. See also Commonwealth v. Simpson, 704 N.E.2d 1131, 1135 n. 5 (Mass. 1999). The Supreme Court of Wisconsin held in State v. Klessig, 564 N.W.2d 716, 722-24 (Wis. 1997), that the state’s approach, adopted in Pickens v. State, 292 N.W.2d 601, 609-11 (Wis. 1980), had survived Godinez, albeit with a modification irrelevant to this case. Because being competent to stand trial and having waived the right to counsel do not require the same information, and because the former competence does not imply an effective waiver in all cases, we do not think that Wisconsin’s approach violates the rule of Godinez.

We may be wrong, but if so Brooks still must lose. Remember that a state court’s decision can be struck down in a federal habeas corpus proceeding only if it is contrary to “clearly established” federal law as declared by the Supreme Court. Godinez did not clearly establish a rule, which is the rule for which Brooks contends, that a defendant found competent to stand trial is automatically entitled to represent himself no matter how deficient his understanding of the consequences of going to trial without a lawyer.

Higher standard for Faretta-waiver of counsel subsequently upheld, at least with respect to mentally ill defendants, Indiana v. Edwards, No. 07-208, 6/19/08 ("the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves")

Particular Issues -- Severance

Particular Issues -- Severance
Dale Basten v. Bertrand, 7th Cir. 03-2245, 11/20/03, on habeas review of State v. Basten, Wis COA 97-0918-CR, 2/27/98
Next, Basten argues that the denial of his severance motion violated his due process rights. That is so, he says, because of the admission of Kutska’s statements to Kellner and because the abundance of evidence against the other defendants could influence the jury to find him guilty.

We cannot find, however, that the decision regarding severance is contrary to or an unreasonable application of Supreme Court precedent. In fact, the Court has said that when a single crime is committed against a single victim in a single series of events by several defendants, a joint trial is not only acceptable but is desirable to promote greater reliability and consistency in the verdicts. Buchanan v. Kentucky, 483 U.S. 402 (1987). A misjoinder of defendants rises to the level of a federal constitutional violation only if it results in substantial prejudice to a defendant. United States v. Lane, 474 U.S. 438 (1986).

A defendant might be prejudiced if the jury heard evidence admissible against only one defendant, which would be inadmissible against him were he tried alone. That is the gist of what Basten says happened to him. But it is likely that if Basten had been tried alone, Kutska’s statement to Kellner would have been properly admitted as a statement against interest. The bulk of the remaining evidence was relevant to all the defendants. And, of course, Wiener’s statement that he saw Basten and Johnson carrying something toward the vat applies directly to Basten and Johnson. The defendants were in this conspiracy together. Trying them together allowed the State to present a chronology of what happened. Had each of the defendants been tried separately (and there is no reason to believe Basten is more entitled to a separate trial than any of the others), the story would have had to be presented six times. This case is a fairly good illustration of why joint trials are preferred.

Particular Issues -- Sexually Violent Persons Commitment

Sexually Violent Persons Commitment -- Failure to Hold Timely Probable Cause Hearing
Brad Lieberman v. Thomas, 05-3922, 10/10/07
Issue/Holding: Failure to hold probable cause hearing within 72 hours isn't cognizable on 2254 habeas.
Sexually Violent Persons Commitment -- Jurisdiction Over Legal Resident of Indian Reservation
Steven J. Burgess v. Watters, No. 05-1633, 11/2/06, denying habeas relief in State v. Burgess, 2003 WI 71
For Burgess: Steven P. Weiss, SPD, Madison Appellate
Issue: Whether Wisconsin lacked jurisdiction to commit a resident of a reservation, under Public Law 280, 67 Stat. 588 (1953), codified in part at 18 U.S.C. § 1162, 28 U.S.C. § 1360
Section 4 of Public Law 280 addresses civil cases, conferring upon the listed states “jurisdiction over civil causes of action between Indians or to which Indians are parties . . . to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private property shall have the same force and effect within Indian country as they have elsewhere within the State.” 28 U.S.C. § 1360(a). The Act’s grant of civil jurisdiction, however, is more restricted than its grant of criminal jurisdiction. ... In Bryan< the Court wrote that "... the primary intent of § 4 was to grant jurisdiction over private civil litigation involving reservation Indians in state court,” and, importantly for Burgess’s argument, not to confer general state civil regulatory control over Indian reservations. Id. at 384-85.


... There are certainly strong arguments that chapter 980 falls outside Public Law 280's limited grant of civil jurisdiction....

... The Supreme Court has not spoken to this precise question....

... (U)nder the generous AEDPA standards, that the Wisconsin Supreme Court’s conclusion does not lie outside the bounds of permissible differences of opinion. We thus cannot conclude that the court unreasonably applied clearly established federal law.

Sexually Violent Persons Commitment -- Jury Instructions -- "Serious Difficulty Controlling Behvavior"
John L. Laxton v. Bartow, No. 04-3988, 8/31/05, denying habeas relief in State v. Laxton, 2002 WI 82
For Laxton: Margaret A. Maroney, SPD, Madison Appellate
... (W)e cannot agree with petitioner’s contention that Crane clearly establishes that the jury must be instructed and specifically find that petitioner has serious difficulty in controlling his behavior. It was not objectively unreasonable for the Wisconsin Supreme Court to conclude that the finding of serious difficulty in controlling behavior was implicit in the jury’s conclusion that Laxton met the statutory definition of a sexually violent person.
Followed in, Rose v. Mayberg, 9th Cir No. 05-16881, 7/18/06.
Sexually Violent Persons Commitment -- Antisocial Personality Disorder
Reuben Adams v. Bartow, 02-3234, 7th Cir., 6/3/03, denying habeas relief in State v. Adams, 223 Wis. 2d 60, 588 N.W.2d 336 (Ct. App. 1998)
For Adams: Samuel Arena (Foley & Lardner)
Issue: Whether the state court affirmance of Adams’ commitment unreasonably applied Kansas v. Hendricks, 521 U.S. 346 (1997) or Foucha v. Louisiana, 504 U.S. 71 (1992).
The essence of Adams’s claim is that it is a violation of due process to civilly commit a person based solely on the fact that he is a previously convicted sex offender with APD [antisocial personality disorder)....

We reject Adams’s challenge on several grounds. First, as we will explain in more detail below, the Wisconsin appeals court’s decision to confine Adams was based on more than just that he is a convicted sex offender with APD, so the factual underpinning of Adams’s claim is erroneous. Second, the Supreme Court’s decision in Foucha was based on a specific combination of factors that is not present in this case: (1) the state, for whatever reason, had conceded that antisocial personality was not a mental disease and therefore admitted that it was confining someone who was not actually mentally ill, id. at 78-79; (2) Foucha was not afforded constitutionally adequate procedures to establish the grounds for his confinement, id. at 79; and (3) the state had not shown that Foucha was dangerous and in fact had no obligation to do so because its statute placed the burden on the individual to show that he was not dangerous, id. at 81-82. Ultimately, the general rule we take from Foucha is simply that an insanity acquittee may be held for only as long as he is still mentally ill; his dangerous propensities alone do not justify continued confinement. See United States v. Wattleton, 296 F.3d 1184, 1202 n.35 (11th Cir. 2002); United States v. Phelps, 283 F.3d 1176, 1184 (9th Cir. 2002). The Wisconsin appeals court’s decision was not an unreasonable application of this rule because there was no dispute during the state court proceedings that Adams has a mental illness—namely, APD. Moreover, even if Foucha can be read to have implied in dicta that APD standing alone is insufficient to warrant civil commitment, dicta does not qualify as “clearly established Federal law” for purposes of § 2254(d)(1). Andrade, 123 S.Ct. at 1172....

Particular Issues -- "Shiffra"

Particular Issues - Shiffra Material - Ritchie Review of Confidential Records for Potential Impeachment of Witness
Joseph F. Rizzo, Jr., v. Smith, 528 F.3d 501 (6/9/08); denying habeas relief in: 2002 WI 20; and 2003 WI App 236
For Rizzo: Terry W. Rose
Issue: Whether the state court's refusal to turn over the sexuak assault complainant's treatment records for the purpose of impeaching the state's psychologist-witness was an unreasonable application of Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
The state supreme court’s conclusion was certainly reasonable. Ritchie says that due process requires confidential information that is potentially exculpatory to be submitted to the trial court for an in camera review. That’s exactly what Rizzo got. The state trial judge conducted an in camera review of Dr. Pucci’s files and found no exculpatory information. Indeed, the judge found that the information in Dr. Pucci’s files did not include anything different than the six-page summary provided to Rizzo. Moreover, the Ritchie plurality flatly rejected the argument that a defendant is entitled to access confidential records simply to aid in cross-examination: “[T]he Confrontation Clause only guarantees ‘an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ ” Id. at 53 (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). Because Rizzo has not identified any clearly established Supreme Court precedent supporting his claim, the state supreme court’s decision was not unreasonable.
Shiffra Material
Leonard L. Davis v. Litscher, 290 F.3d 943 (7th Cir. 2002)
For Davis: T. Christopher Kelly
The sole issue raised in this appeal is whether the Wisconsin appellate court unreasonably applied federal law in Davis' direct appeal for an in camera review of Vance's mental health records. Davis argues that the Wisconsin appellate court erred by requiring him to make a greater showing than that required by the United States Supreme Court's holding in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), for obtaining an in camera review of the records. We agree with the district court that although it may have been more prudent to grant Davis' motion for a review of Vance's mental health records, the denial of the motion was not an unreasonable application of Ritchie.
Note: Court stresses that Davis both argued only that Vance was depressed not delusional, and that Davis already possessed facts material to impeaching Vance. Nonetheless, "Davis makes a strong argument for concluding that the state courts erred in their application of Ritchie.... However, so long as the state court did not act unreasonably, we are not permitted to substitute our independent judgment as to the correct outcome."
After the state court decision in this case, the supreme court distinctly held that, "in cases where it is a close call, the circuit court should generally provide an in camera review." State v. Johnny L. Green, 2002 WI 68 ¶34. And, for a case critically distinguishing between after-the-fact and trial-level review, see U.S. v. Carter, 2004 U.S. Dist. LEXIS 665 (E.D. Wis. 4/12/04), no non-commercial link available: “This (Ritchie) standard was developed in the context of appellate consideration of the effect of non-disclosure … Specifically, the materiality prong presumes that the trial has already occurred … But a court deciding whether material should be disclosed prior to trial does not have the luxury of reviewing the trial record.” Consequently, “in the pretrial context, the court should require disclosure of favorable evidence under Brady and Giglio without attempting to analyze its ‘materiality’ at trial.… Therefore, the court should ordinarily require the pretrial disclosure of all exculpatory or impeachment evidence.”

Particular Issues -- Speedy Trial

Particular Issues - Speedy Trial
Asher B. Hill v. Wilson, No. 06-2777, 3/10/08
Issue/Holding: Delay of 56 days so prosecution witness could recover from heart attack, though error under state law, did not violate 6th amendment right to speedy trial:
The best way to conduct analysis under §2254 is to assume that the state wants to act exactly as its officers (including its judges) have done, and then ask whether the federal Constitution countermands that decision. See, e.g., Gordon v. Degelmann, 29 F.3d 295, 300–01 (7th Cir. 1994); United States v. Martin, 399 F.3d 879 (7th Cir. 2005). The Constitution does not prevent a state from waiting two months for the principal witness (and victim) to recover and testify in person. See Barker, 407 U.S. at 521–22 (“If, for example, the State moves for a 60-day continuance, granting that continuance is not a violation of the right to speedy trial unless the circumstances of the case are such that further delay would endanger the values the right protects.”). It follows that Indiana has not contravened any clearly established rule of federal law.
Particular Issues - Speedy Trial
Clyde B. Williams v. Bartow, No. 05-4736, 3/20/07, denying relief in 2004 WI App 56
Issue/Holding: State court holding that speedy trial right not violated upheld despite delay of approximately three years between mistrial and retrial where: much of delay was either caused by petitioner or otherwise not attributable to the state, including non-intentional inability to secure witnesses; petitioner had intermittently (as opposed to uniformly) asserted right to speedy trial; and no showing was made of any prejudice.
Speedy Trial -- Necessity of Showing Actual Prejudice -- Delay Due to Defendant's Incompetency
Larry K. Danks v. Davis, 7th Cir. 02-2971, 1/21/04
Danks asserts that the state court unreasonably applied Barker and Doggett by requiring him to establish actual prejudice even though he established presumptive prejudice. But establishing presumptive prejudice does not relieve a defendant from the burden of showing actual prejudice; rather, as discussed above, it is merely a threshold showing that the defendant must make before the remaining Barker factors become relevant. Doggett, 505 U.S. at 656 (“presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria”). Therefore, the state court did not unreasonably apply Doggett and Barker when it required Danks to establish actual prejudice.

Alternatively Danks argues that under Doggett, the state court should not have required him to demonstrate actual prejudice because the length-of-delay factor weighed so heavily in his favor. In support, he likens his 6½-year delay to the delay in Doggett, where the government lost track of the defendant until 8 years after his indictment on drug charges. The Supreme Court concluded in Doggett that where the defendant’s claim of presumptive prejudice was not extenuated by his own acquiescence or persuasively rebutted, the defendant did not need to show particularized prejudice in light of the extraordinary interval between his indictment and arrest. Doggett, 505 U.S. at 657-58. But the Indiana appellate court concluded that Danks’ incompetence was responsible for 5 of the 6½ years the state delayed charging him, Danks v. State, 733 N.E.2d 474, 482 (Ind. Ct. App. 2000); its conclusion that Danks’ delay was not as extraordinary as the delay in Doggett is therefore not unreasonable. See also United States v. Abou-Kassem, 78 F.3d 161, 167 (5th Cir. 1996) (period of incompetency attributable to defendant, not the state); United States v. Vasquez, 918 F.2d 329, 338 (2d Cir. 1990) (period of evaluating defendant’s incompetency not attributable to the state); United States v. Jackson, 542 F.2d 403, 407 (7th Cir. 1976) (same).

Particular Issues -- Sufficiency of Evidence

(Note authority for "prudential practice" that habeas court should review sufficieny claim even where relief granted on other ground: Patterson v. Haskins, 6th Cir No. 04-3280, 10/31/06, finding "particularly instructive" U.S. v. Douglas, 974 F.2d 1145 (7th Cir. 1989).)

Sufficiency of Evidence -- Motion to Dismiss at Close of State's Case Doesn't Limit Review, Which Is of All Evidence Presented
Ramiro Hernandez v. Cowan, 200 F.3d 995 (7th Cir 2000)
No doubt the denial [of the motion for a directed verdict] was erroneous under state law, for no reasonable jury could have convicted Hernandez on Cruz’s evidence alone; but we cannot find any basis in federal constitutional law as laid down by the U.S. Supreme Court . . . for the proposition that due process is violated by the denial of a motion to acquit in the middle of the case.
Holding adopted in LaMere v. Slaughter, 9th Cir No. 05-35588, 8/8/06.
Sufficiency of Evidence -- 2nd-Degree Sexual Assault
Jarret M. Adams v. Bertrand, 7th Cir. No. 05-1573, 6/30/06, affirming in part unpublished opinion
... Viewing the evidence in the light most favorable to the conviction, we agree that sufficient evidence established both use of force and threats of force. Specifically, S.E.S. testified that the men groped her breasts and crotch while dancing with her in her room. After she followed Sheets out of the room, she stated that she attempted to go downstairs, only to have one of the men physically turn her around and lead her back into the room. Upon her return to the room, she attempted to keep her legs together, but Adams persisted in taking off her pants and underwear. While S.E.S. did not want him to do this, she eventually could no longer keep her legs together in light of his repeated attempts. All of these actions were uses of force to compel her submission to sexual contact or intercourse. ...
Issue/Holding2: The element of lack of consent was sufficiently proved, where the complainant testified that the defendant engaged in intercourse without her either giving any verbal consent or committing any overt acts that would have suggested consent.
Sufficiency of Evidence -- Homicide (Identification Testimony)
Jose Trejo v. Hulick, 7th Cir. No. 03-3563, 8/19/04
Trejo contends that Negrete did not implicate him in either her statement or her testimony; that Garibay’s identification of him as one of the men in the alley was wholly unworthy of belief; and that the trial judge must have disbelieved Gonzalez’s testimony because the judge acquitted the third defendant, whom Gonzalez had implicated equally with Trejo. But given our deferential standard of review, which requires us to consider not whether the state courts were incorrect but whether they were unreasonable, we cannot allow Trejo to peel the onion in this fashion. Always to be borne in mind is that “a number of weak proofs can add up to a strong proof.” Mataya v. Kingston, 371 F.3d 353, 358 (7th Cir. 2004); see also Rowan v. Owens, 752 F.2d 1186, 1188-89 (7th Cir. 1984); cf. United States v. Jakobetz, 955 F.2d 786, 793, 798-800 (2d Cir. 1992). Trejo misses the point in mounting separate attacks against each of the three witnesses without considering that the whole might be greater than the sum of the parts.


There was enough evidence—if barely enough, given the well-known vagaries of eyewitness identification, see, e.g., Gary L. Wells & Elizabeth A. Olson, “Eyewitness Testimony,” 54 Ann. Rev. Psych. 277 (2003)—to support Trejo’s conviction....

Sufficiency of Evidence -- Armed Robbery -- Use of Dangerous Weapon
(See Losey v. Frank, above.)
Sufficiency of Evidence -- First Degree Intentional Homicide, Direct Commission
Michael L. Johnson v. Bett, 7th Cir. 02-4190 / Dale Basten v. Bertrand, 7th Cir. 03-2245, 11/20/03
Issue/Holding: Evidence of direct commission of homicide was sufficient as to both petitioners: a witness saw both men carrying something (the approximate length of a the victim's body) from the location of his beating to the pulp vat where he died; Basten "began acting strange"; Basten expressed curiosity about what a witness had seen and threatened another who had heard something, etc.
Sufficiency of Evidence -- First Degree Intentional Homicide, PTAC-Conspiracy
Reynold C. Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)
For Moore: James Rebholz
Issue/Holding: Evidence that Moore participated in the beating of the victim by a group of persons was sufficient to support guilt, in contrast to Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001), where "(T)here was no evidence that Piaskowski had participated in the beating or even in the confrontation."
Sufficiency of Evidence -- PTAC-Conspiracy
Michael L. Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001)
For Piaskowski: T. Christopher Kelly
Issue/Holding: Mere presence at scene of crime, and strong suspicion of involvement, insufficient to establish guilt as conspirator, party-to-crime.
For additional authority re: insufficiency of evidence under mere presence theory (on habeas review), see Brown v. Palmer, E.D. MI No. 04-CV-72303-DT, 3/2/05, and cases cited therein, affirmed, 6th Cir. No. 05-1320, 3/14/06 ("being present at the scene of the crime and having a brief relationship with the carjacker are insufficient facts to establish beyond a reasonable doubt that Brown aided and abetted the latter individual"). Also to like effect, citing Piaskowski with approval, see Juan H. v. Allen, 9th Cir No. 04-15562, 6/2/05. Insufficient PTAC evidence, where defendant not placed at scene: Newman v. Metrish, 6th Cir No. 07-1782, 10/6/08.