Aleman, Harry v. Sternes, Jerry L. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2874
HARRY ALEMAN,
Petitioner-Appellant,
v.
JERRY L. STERNES, Warden,
Dixon Correctional Center,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 02 C 1025—Suzanne B. Conlon, Judge.
____________
ARGUED JANUARY 29, 2003—DECIDED FEBRUARY 19, 2003
____________
Before COFFEY, EASTERBROOK, and KANNE, Circuit
Judges.
EASTERBROOK, Circuit Judge. Charged with murder,
Harry Aleman bribed Judge Frank Wilson (of the Circuit
Court of Cook County) to secure an acquittal. Wilson
committed suicide in 1990 on learning that news of this
and other corruption had reached federal investigators.
Already in prison on unrelated federal convictions, see
United States v. DiDomenico, 78 F.3d 294 (7th Cir. 1996);
Aleman v. United States, 878 F.2d 1009 (7th Cir. 1989);
United States v. Aleman, 609 F.2d 298 (7th Cir. 1979),
Aleman was tried again for the murder, after we held
that his trial before Judge Wilson had been a sham that
2 No. 02-2874
did not place him in jeopardy of conviction, so that a new
trial would not be a second jeopardy. Aleman v. Circuit
Court of Cook County, 138 F.3d 302 (7th Cir. 1998). This
time he was convicted. His sentence is 100 to 300 years’
imprisonment. After the state judiciary rejected his con-
stitutional objections, People v. Aleman, 313 Ill. App. 3d
51, 729 N.E.2d 20 (1st Dist. 2000), he sought collateral
relief under 28 U.S.C. §2254 and lost again. Aleman
v. Sternes, 205 F. Supp. 2d 906 (N.D. Ill. 2002). The dis-
trict judge issued a certificate of appealability limited
to a single issue: whether the prosecutor’s reference to
Aleman’s failure to take the stand violated his right to
due process of law.
During closing argument, the prosecutor twice alluded
to the fact that Aleman had not testified. According to
the prosecutor, Aleman was “the only one in this room
who didn’t come on this witness stand and talk about
accepting responsibility” as others involved in the shoot-
ing had done. Aleman’s lawyer objected, and the judge
sustained the objection. Later, when discussing evidence
that three shots had been heard (though only two bul-
lets struck Billy Logan, the victim), the prosecutor
asked the jury to infer that Aleman had fired three times:
“either he shot at the dog or he shot at Bobby Lowe, or
even perhaps . . . [he shot] again at Billy Logan and missed.
We don’t know. Harry Aleman knows. We don’t know.”
Aleman’s lawyer did not object to this statement. The
court instructed the jury that Aleman was not required
to testify and that his decision not to do so “must not
be considered by you in any way in arriving at your ver-
dict.” This instruction shows the gap between what hap-
pened in Aleman’s trial and what happened in Griffin
v. California, 380 U.S. 609 (1965), where the jury was
told that it could draw an adverse inference from the
accused’s failure to testify. What Griffin condemns is
equating silence with evidence of guilt, which undermines
No. 02-2874 3
the privilege against compulsory self-incrimination. Re-
minding jurors of something they already know—that
the defendant did not testify—could be a back-door in-
vitation to draw the forbidden inference, but when it is
not there is no constitutional problem. See United States
v. Robinson, 485 U.S. 25 (1988) (recognizing a distinction
between an adverse inference and a simple reference
to silence); Portuondo v. Agard, 529 U.S. 61, 69 (2000)
(“Griffin prohibited comments that suggest a defendant’s
silence is ‘evidence of guilt’ ” (emphasis in original)). Cf.
Greer v. Miller, 483 U.S. 756 (1987) (instruction to jury
not to draw any inference from silence means that pros-
ecutor’s quest for such an inference has been thwarted,
and no constitutional error has occurred).
Without citing Griffin, Robinson, Miller, or Portuondo,
or discussing the significance of defense counsel’s decision
not to object to the prosecutor’s second statement, the
state’s appellate court condemned the prosecutor’s ar-
gument as misconduct. 313 Ill. App. 3d at 66-69, 729
N.E.2d at 34-35, relying on People v. Blue, 189 Ill. 2d 99,
724 N.E.2d 920 (2000). The appellate court may have
thought that the remarks violated the Constitution of
the United States as well as norms of state law, though it
did not say. It went on to conclude that any error was
harmless because the presiding judge repeatedly in-
structed the jury that a defendant need not testify and
that no inference could be drawn from Aleman’s exercise
of his privilege to remain silent. See also Lakeside v.
Oregon, 435 U.S. 333 (1978).
What Aleman now argues is that, because the state
appellate court did not explicitly hold that the pros-
ecutor’s comments were harmless beyond a reasonable
doubt—the right standard for evaluating on direct appeal
claims of constitutional errors, see Chapman v. California,
386 U.S. 18 (1967)—the state judiciary has rendered “a
decision that was contrary to, or involved an unreasonable
4 No. 02-2874
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States”. 28
U.S.C. §2254(d)(1). Illinois contends that any error by
the state court in applying the Chapman standard is
irrelevant, because the harmless-error question on col-
lateral review is whether a constitutional error had a
“substantial and injurious effect or influence in determin-
ing the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 623 (1993). See also O’Neal v. McAninch, 513 U.S.
432 (1995). Aleman replies that §2254(d), as amended in
1996 by the Antiterrorism and Effective Death Penalty
Act, jettisons Brecht and replaces it with the question
whether the state judiciary unreasonably applied the
Chapman standard. If yes, Aleman contends, he is en-
titled to collateral relief; the state does not get a second try
under the more lenient approach of Brecht. Aleman’s ar-
gument has some support in Whitmore v. Kemna, 213 F.3d
431, 433 (8th Cir. 2000) (dictum), but has been rejected
by every appellate decision that has tackled the subject
head-on. See Herrera v. LeMaster, 301 F.3d 1192, 1199-
1200 (10th Cir. 2002) (en banc); Bulls v. Jones, 274 F.3d
329, 335 (6th Cir. 2001); Sanna v. DiPaolo, 265 F.3d 1, 14-
15 (1st Cir. 2001). We reserved the question in Harding
v. Walls, 300 F.3d 824, 828 n.2 (7th Cir. 2002), but the time
to choose has arrived: we agree with these decisions.
Aleman’s premise is that if a state court renders a
decision contrary to, or unreasonably applying, federal
law, then the prisoner is entitled to a writ of habeas cor-
pus. This is not, however, what §2254(d) says. It begins:
“An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless” certain things are true. (The emphasis in this
quotation is ours.) Unless the adjudication “resulted in
a decision that was contrary to, or involved an unreason-
No. 02-2874 5
able application of, clearly established Federal law”, col-
lateral relief “shall not be granted”. If the state court’s
opinion was unreasonable—or if the state judiciary did
not address the constitutional claim, despite an opportu-
nity to do so—then §2254(d) no longer applies. A prisoner
still must establish an entitlement to the relief he seeks,
and it is §2254(a), not §2254(d), that sets the standard: the
court issues “a writ of habeas corpus on behalf of a per-
son in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United States.”
Whether a given prisoner’s custody violates the Consti-
tution, laws, or treaties of the United States depends,
first, on whether all substantive rules have been respected
(the merit of the claim) and, second, on whether any error
caused the custody. That is where Brecht’s harmless-error
doctrine enters; a harmless error did not play a causal
role and thus does not justify collateral relief. Nothing in
the AEDPA suggests that it is appropriate to issue writs
of habeas corpus even though any error of federal law
that may have occurred did not affect the outcome.
Twice since the AEDPA’s enactment the Supreme Court
has used the Brecht standard on collateral review. See
Early v. Packer, 123 S. Ct. 362, 366 (2002); Penry v. John-
son, 532 U.S. 782, 795 (2001). It did not explain why, in its
view, Brecht survives the amendment to §2254(d). Maybe
the question was not briefed, or perhaps the Jus-
tices thought the answer obvious. For the reason we have
just given, the answer is obvious, so we are not inclined
to dismiss the language of Early and Penry as incau-
tious dicta. Other courts of appeals have disagreed about
the sequence of decision. Herrera held that before turn-
ing to Brecht the federal judiciary must determine that
the state judiciary applied Chapman unreasonably. Bulls,
on the other hand, concluded that it makes sense to start
with Brecht—for if the error had a substantial and injuri-
ous effect then any conclusion that the error was harm-
6 No. 02-2874
less beyond a reasonable doubt must have been unrea-
sonable, while if the error did not have a substantial
and injurious effect then the Chapman inquiry can be by-
passed. Early approached the sequence the same way
Herrera did (though without holding that this is com-
pelled), and we suspect that most of the time this choice
depends on prudence rather than obligation. Unless its
jurisdiction is at stake, a court may take up issues in
whatever sequence seems best, given the nature of the
parties’ arguments and the interest in avoiding unneces-
sary constitutional decisions. Compare Steel Co. v. Citizens
for Better Environment, 523 U.S. 83 (1998), with Ruhrgas
AG v. Marathon Oil Co., 526 U.S. 574 (1999).
Here the sequence of analysis matters not at all. The
state’s court of appeals did not mention Chapman be-
cause it apparently did not think that the federal Constitu-
tion had been violated. It applied a state-law standard
of harmlessness to what it saw as an error of state law by
the prosecutor. Given the trial judge’s anti-inference
instruction, this is an appropriate perspective. Even if the
instruction were deemed inadequate, and even if the
prosecutor’s argument were treated as an implied request
to use Aleman’s silence as substantive evidence against
him, that fleeting argument was so peripheral to this trial
that no substantial and injurious result came to pass. We
are confident that the jury convicted Aleman based on
the evidence actually introduced, not on speculations
about the significance of missing testimony. Thus Aleman’s
custody does not violate the federal Constitution, see
§2254(a), and he is not entitled to collateral relief.
Aleman presents arguments about issues in addition
to the one identified in the certificate of appealability.
Like the district judge, we conclude that none of these
is substantial, so we decline his request to expand the
certificate.
AFFIRMED
No. 02-2874 7
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-19-03