David Jones v. Dushan Zatecky , 917 F.3d 578 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2606
DAVID M. JONES,
Petitioner-Appellant,
v.
DUSHAN ZATECKY, Warden,
Pendleton Correctional Facility,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:16-cv-1393-RLY-DML — Richard L. Young, Judge.
____________________
ARGUED NOVEMBER 1, 2018 — DECIDED FEBRUARY 28, 2019
____________________
Before WOOD, Chief Judge, and MANION and ROVNER, Cir-
cuit Judges.
WOOD, Chief Judge. At the time of David Jones’s arrest and
prosecution in 2005, Ind. Code § 35-34-1-5 (1982) identified
an “omnibus date” and allowed prosecutors to make sub-
stantive amendments to pending charges only up to 30 days
2 No. 17-2606
before the omnibus date. 1 Seven years earlier, in a case called
Haak v. State, 695 N.E.2d 944, 951 (Ind. 1998), the Indiana Su-
preme Court had confirmed the strict nature of this deadline.
Disregarding this rule, in Jones’s case the state moved nine
days after the omnibus date to amend the charging instru-
ment to add a new and highly consequential charge of crim-
inal confinement. Jones’s attorney did not object to this un-
timely amendment, and Jones was ultimately convicted of
the confinement charge.
According to the state, there is nothing unique about
Jones’s case. It tells us that defense attorneys around Indiana
routinely ignored both the clear text of the statute and the
Haak decision and allowed prosecutors to make untimely
amendments. If that is an accurate account, it is hardly reas-
suring. For a lawyer to fail to take advantage of a clear ave-
nue of relief for her client is no less concerning because many
others made the same error—if anything, it is more so.
We have seen this problem before. See Shaw v. Wilson, 721
F.3d 908, 911 (7th Cir. 2013). We held in Shaw that following
the crowd is no excuse for depriving a criminal defendant of
his constitutional right to the effective assistance of counsel.
Id. at 917. We accordingly held that Shaw was entitled to the
issuance of a writ of habeas corpus under 28 U.S.C. § 2254,
based on his attorney’s failure to object to an untimely
amendment to his charges under the same Indiana law now
1 Indiana amended this statute four months after the Indiana Su-
preme Court applied it in Fajardo v. State, 859 N.E.2d 1201 (Ind. 2007). See
Act of May 8, 2007, P.L. 178-2007 § 1, 2007 Ind. Legis. Serv. (West) (codi-
fied as amended at Ind. Code § 35-34-1-5 (2014)). The amendment is not
retroactive and thus has no effect on Jones’s case.
No. 17-2606 3
before us. Id. at 910. We conclude that Jones is entitled to the
same relief.
I
Jones was convicted of crimes tied to two incidents of do-
mestic violence in 2005. In the first, he attacked his partner
and was charged with battery; in the second, he threatened
her and was charged (under a separate docket number) with
intimidation and being a habitual offender. The trial court set
a joint omnibus date for both cases of October 18, 2005. Nine
days after that date, the state moved to amend the infor-
mation in the battery case to add a charge of criminal con-
finement. (We refer to this as the First Amendment.) As we
noted, Jones’s attorney let this pass without objection, and
the court granted the state’s motion without a hearing. Then
in January 2006, the state moved to amend the charge in the
intimidation case to add the language “or engage in conduct
against her will.” (This is the Second Amendment.) A few
months later Jones’s new attorney filed a motion to dismiss
the amended information in the intimidation case, but the
trial court denied the motion.
The cases were consolidated for trial, by which time Jones
had yet another attorney. On the first day of trial, the state
moved to amend the information for the criminal-confine-
ment charge (i.e. the battery case) again, this time to add the
language “and/or extreme pain.” Jones’s attorney objected,
but the court overruled him and allowed the amendment.
(This was the Third Amendment.) The jury found Jones
guilty of all three charges (battery, criminal confinement, and
intimidation). He was sentenced to concurrent terms of 20
years for criminal confinement, enhanced by 25 years for be-
ing a habitual offender; eight years for battery resulting in
4 No. 17-2606
serious bodily injury; and three years for intimidation. Later
the trial court on its own motion reduced the battery convic-
tion to a class B misdemeanor and reduced that sentence to
six months because of double-jeopardy concerns.
On direct review, Jones argued that the trial court erred
when it allowed the First Amendment in violation of Ind.
Code § 35-34-1-5. The Indiana Court of Appeals rejected that
argument on waiver grounds, because of counsel’s failure to
object. Jones v. State, 876 N.E.2d 389, 2007 WL 3287457, at *4
(Ind. Ct. App. 2007) (unpublished table decision) (Jones I),
transfer denied, 891 N.E.2d 35 (Ind. 2008). His state-court pe-
tition for post-conviction relief was also unsuccessful. Jones
v. State, 46 N.E.3d 501, 2016 WL 359276, at *2–3 (Ind. Ct. App.
2016) (Jones II) (unpublished table decision), transfer denied,
49 N.E.3d 107 (Ind. 2016).
After exhausting his state-court remedies, Jones filed a
pro se habeas corpus petition in federal court under 28 U.S.C.
§ 2254. In it, he argues that his first lawyer’s failure to object
to the untimely First Amendment amounted to ineffective as-
sistance of counsel, and that the failure of the state courts to
grant him relief on that ground “involved an unreasonable
application of … clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). We review the district court’s decision to deny
a petition under section 2254 de novo, but the standard we
apply is one under which relief is possible only if the state
court’s determination was objectively unreasonable. Virginia
v. LeBlanc, 137 S. Ct. 1726, 1728 (2017) (great deference is due
to state-court determination, and standard for granting relief
under section 2254 is meant to be a difficult one); McNary v.
Lemke, 708 F.3d 905, 914 (7th Cir. 2013).
No. 17-2606 5
The district court denied Jones’s petition and dismissed
his case with prejudice. It also denied a certificate of appeal-
ability, but we issued one based on Shaw. Before this court
(now represented by recruited counsel, whom we thank),
Jones argues only that his attorney’s failure to object to the
First Amendment, which added the criminal-confinement
charge that accounts for the lion’s share of his sentence, vio-
lated his Sixth Amendment right to effective assistance of
counsel.
II
The version of Ind. Code § 35-34-1-5 in effect during
Jones’s prosecution forbade amendments of substance after
30 days before the omnibus date. In Haak, Indiana’s highest
court held that untimely amendments were “impermissible”
if they were amendments of “substance,” and that the other
procedures in Indiana law allowing prosecutors to make
post-omnibus amendments applied only to amendments of
“form.” Id. Shortly after Jones’s conviction, another defend-
ant who did object to an untimely amendment had his con-
viction reversed by the Indiana Supreme Court in Fajardo v.
State, 859 N.E.2d 1201, 1202 (Ind. 2007). Jones argues, in es-
sence, that his case should have been Fajardo, and would
have been if counsel had lodged a timely objection. 2
2 The fact that the defendant in Fajardo won the reversal of his con-
viction on the improperly added charge and resentencing persuades us
that this is not simply a matter of paper-shuffling for Jones. The Indiana
Supreme Court unanimously disposed of Fajardo as follows: “Because the
trial court’s sentencing determination for Count 1 may have been sub-
stantially affected by the sentence determination for Count 2, we remand
to the trial court for a new sentencing determination.” 859 N.E.2d at 1209.
6 No. 17-2606
Counsel’s failure to do so, he contends, was both defective
performance and highly prejudicial.
A Sixth Amendment claim of ineffectiveness of counsel
can be predicated on an attorney’s failure to raise a state-law
issue in a state-court proceeding. McNary, 708 F.3d at 920. We
look to state law in our evaluation of such a claim. George v.
Smith, 586 F.3d 479, 483–84 (7th Cir. 2009). This focus on state
law does not prevent us from considering the attorney’s fail-
ure to raise an obvious argument. McNary, 708 F.3d at 920.
That is because we are assessing counsel’s performance, and
that assessment proceeds against the backdrop of whatever
the state says its law is. We then apply the standards of Strick-
land v. Washington, 466 U.S. 668 (1984), to determine whether
counsel’s assistance met constitutional standards. That re-
quires us to determine whether counsel’s actions fell below
the constitutional minimum and whether there is a reasona-
ble probability that, but for counsel’s errors, the outcome
would have been different. Id. at 689.
Shaw presented almost the identical situation for our re-
view. 721 F.3d at 910. At the time of Shaw’s conviction, the
same Indiana law was in effect, and the state similarly
amended the information to add a more serious charge
against Shaw after his omnibus date had passed. Shaw’s trial
counsel objected to the amendment, but the trial court ruled
against him. Shaw’s appellate attorney declined to pursue
this point on appeal, choosing instead to make a near-frivo-
lous argument about the sufficiency of the evidence. Id. at
912.
Had Jones’s attorney rendered adequate assistance, he would have been
entitled to the same treatment.
No. 17-2606 7
When Shaw reached this court, the state made the same
arguments against a finding of ineffective assistance of coun-
sel that it is making in Jones’s case. We were not persuaded.
We found irrelevant the fact that no Indiana appellate court
had previously invalidated an untimely amendment at the
time of Shaw’s conviction—for all we knew, the trial courts
were policing this rule on their own. There could be no
doubt, we thought, that the combination of the terms of the
statute and Haak made this argument available for responsi-
ble counsel. Id. at 916. We also rejected the state’s attempt to
portray the facts as unfairly requiring counsel to predict a
change in the law, for the simple reason that nothing had
changed. Id. at 916–17. And we held that the possibility of
additional time to prepare for trial did not alleviate any po-
tential prejudice, since dismissal was a real possibility under
existing law. Id. at 918.
Jones, like Shaw, had a strong argument for dismissing
one of the charges against him, yet his trial attorney did not
pursue it. The state suggests that Haak was widely ignored
by defense counsel, but we have no hard data to back up that
impression. We are loath to say that an attorney’s failure to
heed the specific direction of the Indiana Supreme Court and
the plain text of Indiana law is excusable. To the contrary,
that action falls “outside the wide range of professionally
competent assistance” required by the Sixth Amendment.
Strickland, 466 U.S. at 690. As in Shaw, this feature of Indiana
law created a real opportunity for Jones’s defense, but coun-
sel let it slip away. Fajardo and its aftermath show that this
opportunity did not dissipate until years after Jones’s trial.
We conclude that this was one of those rare cases in which
“counsel’s performance fell below the constitutional mini-
mum, and that the Indiana appellate court’s conclusion
8 No. 17-2606
otherwise was an unreasonable application of Supreme
Court precedent.” Shaw, 721 F.3d at 915. 3
That leaves the question of prejudice. The facts here speak
for themselves on that point. It is easy to find a reasonable
probability that counsel’s error prejudiced Jones. As we
noted in Shaw:
3 The dissent suggests that we are giving inadequate deference to the
state court’s decision in Jones’s own case. We respectfully disagree. Lim-
ited though our role in habeas corpus cases may be, it is not meaningless.
While the bar for a successful claim pursuant to 28 U.S.C. § 2254 is high
and issuance of the writ is rare, some cases clear those hurdles, and we
are not free to read the statute out of the books. The Supreme Court on a
significant number of occasions post-AEPDA has held a state prisoner
was entitled to habeas corpus relief under 28 U.S.C. § 2254(d)(1) because
the state court’s decision was contrary to, or involved an unreasonable
application of, clearly established law. See Williams v. Taylor, 529 U.S. 362
(2000) (right to effective assistance of counsel as required by Strickland,
466 U.S. 668); Wiggins v. Smith, 539 U.S. 510 (2003) (right to effective as-
sistance of counsel as required by Strickland, 466 U.S. 668); Rompilla v.
Beard, 545 U.S. 374 (2005) (right to effective assistance of counsel as re-
quired by Strickland, 466 U.S. 668); Abdul-Kabir v. Quarterman, 550 U.S. 233
(2007) (right to present mitigation evidence to sentencing jury as required
by Penry v. Lynaugh, 492 U.S. 302 (1989)); Panetti v. Quarterman, 551 U.S.
930, 953 (2007) (right to present arguments showing incompetency to be
executed, as required by Ford v. Wainwright, 477 U.S. 399 (1986)); Brewer
v. Quarterman, 550 U.S. 286 (2007) (right to present mitigation evidence to
sentencing jury as required by Penry, 492 U.S. 302); Lafler v. Cooper, 566
U.S. 156, 173 (2012) (right to effective assistance of counsel as required by
Strickland, 466 U.S. 668); McWilliams v. Dunn, 137 S. Ct. 1790 (2017) (right
to mental health expert as required by Ake v. Oklahoma, 470 U.S. 68
(1985)). These cases show that each case must be assessed on its own, and
that we continue to have the duty to correct a misapplication of clearly
established federal law when that error meets the statutory standards.
No. 17-2606 9
Prejudice exists, however, if counsel bypassed a non-
frivolous argument that, if successful, would have re-
sulted in the vacation of Shaw’s conviction (just as the
conviction in Fajardo later was). If one is entitled to a
dismissal, a continuance is no comfort. And when eval-
uating prejudice, unlike when evaluating attorney per-
formance, hindsight is permissible. ... This means that
the Indiana Supreme Court’s ultimate decision in Fa-
jardo is relevant to whether the argument [the lawyer]
jettisoned was both nonfrivolous and stronger than the
sufficiency argument he presented.
Id. at 918. Hindsight in Jones’s case tells us that his attorney’s
silence doomed his appeal. On direct appeal, the Indiana
Court of Appeals agreed that the First Amendment “was
made in violation of Indiana Code Section 35-34-1-5(b).”
Jones I, 2007 WL 3287457, at *3. In other words, what killed
the argument in that court was waiver, not lack of merit. As
the court put it, “[Jones] did not object to the amendment on
the same grounds to the trial court … [and thus] [t]he issue
is waived.” Id. at *3–4.
Indiana’s efforts to distinguish Shaw fall flat. Jones’s case
does not require us to resolve any question of state law; it
demands only the application of the state’s statutes, as inter-
preted by Indiana’s highest court. When addressing Jones’s
lawyer’s failure to object to the untimely substantive amend-
ment, we need ask only whether raising the issue “had a bet-
ter than fighting chance at the time.” Shaw, 721 F.3d at 916. It
did. As we said in Shaw, “a competent lawyer in Indiana
should have recognized that there was a state statute under
which relief for his client was possible and would have pur-
sued that theory.” Id. at 914.
10 No. 17-2606
III
Adhering to Shaw, we thus VACATE the district court’s de-
cision to deny Jones’s petition for a writ of habeas corpus and
REMAND with instructions to issue the writ within 120 days
with respect to his conviction for criminal confinement only
and to make any necessary adjustments in his sentence on
the two unchallenged counts of conviction.
No. 17-2606 11
MANION, Circuit Judge, dissenting. The ultimate question
in this case is whether the Indiana Court of Appeals unrea-
sonably applied federal law when it determined David
Jones’s counsel was not ineffective for failing to make a mo-
tion that approximately twenty years of Indiana case law told
him would not be successful. The court says it was unreason-
able. I disagree. While a reasonable person could find “coun-
sel made errors so serious that counsel was not functioning as
‘counsel’ guaranteed the defendant by the Sixth Amend-
ment,” Strickland v. Washington, 466 U.S. 668, 687 (1984), “fair-
minded jurists could disagree” whether that is the only rea-
sonable conclusion, see Harrington v. Richter, 562 U.S. 86, 102
(2011). Accordingly, I respectfully dissent.
This case concerns a petition for a writ of habeas corpus
brought by an Indiana prisoner, so we apply the highly def-
erential standard of the Anti-Terrorism and Effective Death
Penalty Act. See 28 U.S.C. § 2254(d). Under that standard, we
ask only if the last state court to adjudicate the prisoner’s
claim rendered “a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or…that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.” Id.
Here, the question is whether the Indiana Court of Ap-
peals unreasonably applied the rule from Strickland, which is
“the Supreme Court’s clearly established precedent” concern-
ing ineffective assistance of counsel. Weaver v. Nicholson, 892
F.3d 878, 884 (7th Cir. 2018). Critically, “an unreasonable appli-
cation of federal law is different from an incorrect application
of federal law.” Harrington, 562 U.S. at 101 (quoting Williams
12 No. 17-2606
v. Taylor, 529 U.S. 362, 410 (2000)). In the realm of ineffective
assistance, this means that a federal court should not grant a
writ of habeas corpus even if “the state-court decision may be
contrary to the federal court’s conception of how Strickland
ought to be applied in that particular case” so long as “the
decision is not ‘mutually opposed’ to Strickland itself.” Wil-
liams, 529 U.S. at 406. The state court must have reached a de-
cision “lying well outside the boundaries of permissible dif-
ferences of opinion,” not just one with which the federal court
disagrees. Burgess v. Watters, 467 F.3d 676, 681 (7th Cir. 2006)
(quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).
With those guiding principles in mind, the facts of this case
compel the conclusion the Indiana Court of Appeals’ decision
may have been incorrect, but it was not unreasonable.
At the time of Jones’s prosecution, the state of Indiana law
concerning the amendment of charging documents was con-
fused. The Indiana Code plainly allowed substantive amend-
ments in felony cases to be made only “up to…thirty (30)
days…before the omnibus date,” I.C. § 35-34-1-5(b) (1982),
and the Indiana Supreme Court had affirmed as much in Haak
v. State, 695 N.E.2d 944, 951 (Ind. 1998) (“Pursuant to subsec-
tion (b), [amendments of substance]…may not occur after
specified times in advance of the omnibus date.”). But at the
same time, the Indiana Court of Appeals consistently ren-
dered decisions allowing late substantive amendments to
charging instruments so long as the defendant had adequate
time to prepare for trial. See, e.g., Laughner v. State, 769 N.E.2d
1147, 1158 (Ind. Ct. App. 2002) (declining to address whether
an amendment was substantive because, “[a]s a general rule
any information may be amended at any time before, during,
or after trial as long as the amendment does not prejudice the
substantial rights of the defendant” (alteration in original)
No. 17-2606 13
(quoting Hegg v. State, 514 N.E.2d 1061, 1063 (Ind. 1987))); see
also Hurst v. State, 890 N.E.2d 88, 95 (Ind. Ct. App. 2008) (“For
over twenty years…case law regularly permitted amend-
ments related to matters of substance as long as the substan-
tial rights of the defendant were not prejudiced, regardless of
whether the amendments were untimely under I.C. § 35-34-1-
5(b).”). The Supreme Court of Indiana likewise blurred the
picture. See Fajardo v. State, 859 N.E.2d 1201, 1206–07 (Ind.
2007) (collecting cases and noting “[t]he methodology em-
ployed in the cases identified…does not comply with Indiana
Code § 35-34-1-5”).
Given this state of affairs, the Indiana Court of Appeals
concluded Jones’s counsel was not constitutionally deficient
for failing to move to dismiss the untimely amendment. Jones
had over ten months before trial, so the amendment did not
prejudice the preparation of his defense. No Indiana appellate
court had ever disallowed an amendment to a charging instru-
ment under those circumstances. Therefore, the court con-
cluded a reasonable practitioner could make a tactical deci-
sion not to pursue a motion to dismiss when the case law told
1
him it would fail. That was not unreasonable.
1
I take issue with the court’s portrayal of the state’s argument on
this point. The court’s opinion says, “[The state] tells us that defense at-
torneys around Indiana routinely ignored both the clear text of the stat-
ute and the Haak decision and allowed prosecutors to make untimely
amendments.” Maj. Op. at 2. What the state actually argued was that rea-
sonable attorneys would pay attention to and follow decisions coming
from the appellate court. Indeed, it is not even the case that no lawyers
were making these challenges. Shaw v. Wilson, 721 F.3d 908, 916 (7th Cir.
2013) (commenting “that dozens of similar (though unsuccessful) chal-
lenges were documented in published opinions” (emphasis added)).
14 No. 17-2606
This court’s decision in Shaw v. Wilson, 721 F.3d 908 (7th
Cir. 2013), which also addressed this confusion in Indiana
law, is distinguishable. There, the defendant claimed his ap-
pellate counsel was ineffective for failing to raise the timeli-
ness issue on appeal. This court agreed, concluding counsel
should have made the argument because it was the best one
available to him, even if the case law was against him. But key
to that case is the fact that, under Indiana law, appellate coun-
sel had to make an argument—Indiana did not allow him to
file an Anders-style, “motion to withdraw” brief. Shaw, 721
F.3d at 915 (“[I]n Indiana appellate attorneys must ‘submit an
ordinary appellate brief…no matter how frivolous counsel re-
gards the claims to be.’” (second alteration in original) (cita-
tion omitted) (quoting Mosley v. State, 908 N.E.2d 599, 608
(Ind. 2009))); see also Anders v. California, 386 U.S. 738 (1967).
Because of Indiana’s “file something” rule, it did not matter
how successful appellate counsel thought the claim might be;
he was legally bound to make the best argument he could,
even if that argument was (ultimately) a loser. In this case,
Jones’s trial counsel was not operating under that same con-
straint, so the situations are not the same. I would not extend
Shaw’s reasoning to the scenario here.
I have my misgivings about the Indiana Court of Appeals’
decision in this case. But, like Judge Barrett in her recent dis-
sent in Sims v. Hyatte, “I can’t say that the Indiana Court of
Appeals’ decision was ‘so lacking in justification that there
was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’”
914 F.3d 1078, 1099 (7th Cir. 2019) (Barrett, J., dissenting)
(quoting Harrington, 562 U.S. at 103). Therefore, I respectfully
dissent.