Burr, Jeffrey D. v. Pollard, William ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-4031
JEFFREY D. B URR,
Petitioner-Appellant,
v.
W ILLIAM J. P OLLARD ,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04 C 992—Aaron E. Goodstein, Magistrate Judge.
A RGUED S EPTEMBER 11, 2008—D ECIDED O CTOBER 15, 2008
Before E ASTERBROOK, Chief Judge, and P OSNER and E VANS,
Circuit Judges.
E VANS, Circuit Judge. On a March day in 2000, loggers
working in rural Pepin County, Wisconsin, found a dead,
nearly naked body lying in the snow. Hypothermia was
evident, but Mother Nature was not the cause of death. As
a subsequent investigation discovered, the body was that
of Ronald Ross, a man who several other men assaulted at
2 No. 07-4031
a house party two days earlier in Red Wing, Minnesota.
The body was left for dead in Wisconsin that night. Jeffrey
Burr, 15 years old at the time, was the chief assailant. He
attacked Ross at the party and suggested slitting his throat
as he and three confederates drove the unconscious Ross to
Wisconsin. When Ross came to during the drive, Burr beat
him with a machete. After Burr and his companions
unloaded Ross from the SUV they were using, two of the
men went back to the car, but Burr and one other stayed
with Ross, kicking him several times. Upon returning to
the SUV, Burr said they had “killed him.”
A Wisconsin state court jury convicted Burr of first-
degree murder.1 Under Wisconsin law, a defendant con-
victed of first-degree murder must serve a life sentence.
Wis. Stat. §§ 940.01(1), 939.50(3)(a). The judge, however,
can influence the actual time of confinement by setting an
eligibility date for “extended supervision.” See Wis. Stat.
§ 973.014(1g)(a). When an inmate is released on extended
supervision, he still serves his sentence, but in a different
manner—outside the prison walls. See State v. Larson, 268
Wis. 2d 162, 166, 672 N.W.2d 322, 324 (Wis. Ct. App. 2003)
(“[T]he term extended supervision . . . means supervision
of an individual not incarcerated.”). Extended supervision,
therefore, is synonymous with “supervised release,” a term
used by federal courts. See, e.g., United States v. Hatten-
Lubick, 525 F.3d 575, 581-82 (7th Cir. 2008).
1
He was also convicted of aggravated battery and false
imprisonment.
No. 07-4031 3
An eligibility date for extended supervision became an
issue at Burr’s sentencing. The presentence report stated
Burr bullied a boy named Andy Rush in school. 2 Burr
disputed that allegation, and his attorney asked the court
to strike the information or hold an evidentiary hearing to
determine its validity. The judge went with option one,
stating that he would not consider the allegation for
sentencing purposes. Yet, when it came time to announce
the sentence, that ruling apparently slipped his mind. The
judge remarked, “All through school and his contact with
other kids, [Burr has] been a bully.” After recounting the
events concerning the beating and murder of Ross, the
judge imposed the mandatory life term and ordered that
Burr would be eligible for “extended supervision” after 60
years, in 2061.
The judge subsequently refused to modify the sentence,
stating that he premised the extended supervision date on
the fact that it was a “brutal murder,” and 60 years would
ensure that Burr “would be old enough when he got
out that he couldn’t hurt anyone else.” The judge said
he did not consider the bullying issue “as a factor at
sentencing.”
Burr also contended in his motion to modify that the
judge punished him for exercising his right to remain
silent. Burr did not take the stand at trial, and he declined
to say any thing during the sentencing hearing. The judge
at sentencing said he was disturbed that Burr didn’t show
2
The details of those encounters are not in the record before us.
4 No. 07-4031
“one ounce of remorse or repentance” and had an “abso-
lutely flat affect” in his court appearances. As the judge
saw it, Burr failed to exhibit “tenderness towards anybody
on the stand.”
Later, the judge handed out lighter sentences (at least
in terms of extended supervision) to Noah and Arlo
White, two brothers who were also convicted of Ross’s
murder. There, the judge contrasted their actions in court
with those of Burr. The White brothers, who pleaded
guilty, would be eligible for earlier extended supervision
because they acknowledged their crimes. Burr, on the
other hand, “took no responsibility. He did not say one
word in this court. He never acknowledged any guilt
whatsoever.”
Burr sought relief in the Wisconsin Court of Appeals.
State v. Burr, 266 Wis. 2d 694, 2003 WL 21448555 (Wis. Ct.
App. June 24, 2003). The Wisconsin Court of Appeals
agreed that the sentencing judge erred with respect
to the bullying issue, but Burr’s victory was superficial.
The court concluded that the error was harmless at
best because the judge’s comments at sentencing
“focus[ed] primarily on the crime’s brutal nature and
Burr’s primary role, lack of remorse, antisocial tendencies,
aggressive and violent nature, history of discipline prob-
lems, and substance abuse.” Burr had even less success
with a Fifth Amendment argument. The appellate court
decided that the sentencing judge properly considered
Burr’s lack of remorse and gave due weight to that factor.
The Wisconsin Supreme Court denied a request for
review.
No. 07-4031 5
With his state court remedies exhausted, Burr filed a
habeas corpus petition with the federal district court.3 The
district court dismissed Burr’s petition, concluding that the
“bullying” reference was not necessarily based on the same
information stricken by the judge—the stricken informa-
tion referred to a specific individual; the judge at sentenc-
ing said Burr bullied “kids”—and, in any event, the
appellate court’s harmless error analysis was consistent
with Supreme Court precedent. The court further rejected
the Fifth Amendment claim, explaining that the finding of
no remorse rested upon circumstances other than mere
silence. Burr now appeals the dismissal of his petition.
We review the district court’s factual findings for clear
error and its legal conclusions de novo. Rizzo v. Smith, 528
F.3d 501, 505 (7th Cir. 2008). Under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), a petitioner
is entitled to habeas relief when a decision of the state
court is either “contrary to” or “an unreasonable applica-
tion of” clearly established federal law as determined by
the United States Supreme Court. 28 U.S.C. § 2254(d)(1);
Williams v. Taylor, 529 U.S. 362 (2000). A decision is
“contrary to” Supreme Court precedent when it relies on
a rule that conflicts with that precedent or reaches a
different result in a similar case. Williams, 529 U.S. at 412-
413. A state court unreasonably applies clearly established
law if it “identifies the correct governing legal principle . . .
but unreasonably applies that principle to the facts of the
3
Magistrate Judge Aaron E. Goodstein presided with the
consent of the parties.
6 No. 07-4031
prisoner’s case.” Williams, 529 U.S. at 413. In either event,
error alone is not sufficient; a state court’s decision must
be “objectively unreasonable.” Lockyer v. Andrade, 538
U.S. 63, 76 (2003).
Burr renews his claim here that his due process rights
were violated when the judge considered the “bullying”
allegation after striking it from the record and that his Fifth
Amendment rights were infringed when the judge en-
hanced the confinement component of his sentence
because he remained silent.
Taking the issues in turn, Burr contends the state court of
appeals applied the wrong standard of review in resolving
the “bullying” claim. The appellate court said the sentenc-
ing judge’s error was harmless because there was “no
reasonable probability”—as opposed to “possibility”—that
it resulted in a longer period of incarceration. As Burr
points out, the Supreme Court has held that courts con-
ducting harmless error review on direct appeal should
determine whether the error was “harmless beyond a
reasonable doubt.” Chapman v. California, 386 U.S. 18, 24
(1967). Nevertheless, we agree with the district court that
the state appellate court meant to, and more importantly
did, apply the Chapman standard. Second, and more
important, Chapman is neither here nor there. Just two
terms ago, the Supreme Court held that under AEDPA a
federal habeas court is to apply the more forgiving “sub-
stantial 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
No. 07-4031 7
beyond a reasonable doubt under Chapman. Fry v. Pliler,
127 S. Ct. 2321, 2328 (2007). So the standard varies depend-
ing on whether the challenge is made on direct appeal or
collateral review, and the state court made no mistake
when it applied Chapman. Regardless, 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 after-
thought; 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.
So, too, did the district court reach the right result with
respect to the Fifth Amendment claim. The Fifth Amend-
ment protects an accused’s right to remain silent at trial
and sentencing. Mitchell v. United States, 526 U.S. 314, 326-
27 (1999). That right, of course, would mean little if a judge
could punish a defendant for invoking it. United States v.
Turner, 864 F.2d 1394, 1405 (7th Cir. 1989). Nevertheless,
silence can be consistent not only with exercising one’s
constitutional right, but also with a lack of remorse. The
latter is properly considered at sentencing because it
speaks to traditional penological interests such as rehabili-
tation (an indifferent criminal isn’t ready to reform) and
8 No. 07-4031
deterrence (a remorseful criminal is less likely to return to
his old ways). See Bergmann v. McCaughtry, 65 F.3d 1372,
1379 (7th Cir. 1995). The line between the legitimate and
the illegitimate, however, is a fine one. As we have recog-
nized, “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.
The district court’s order denying Burr’s petition for
a writ of habeas corpus is A FFIRMED.
10-15-08