Adetokunbo Fayemi v. Kess Roberson ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1241
ADETOKUNBO PHILIP FAYEMI,
Petitioner-Appellant,
v.
EMILY RUSKIN, Warden, Lincoln Correctional Center,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 17-3210 — Sue E. Myerscough, Judge.
____________________
ARGUED APRIL 28, 2020 — DECIDED JULY 16, 2020
____________________
Before EASTERBROOK, RIPPLE, and SCUDDER, Circuit Judges.
EASTERBROOK, Circuit Judge. Agatha Christie’s The Pale
Horse (1961) introduced thallium poisoning to the world of
detective fiction. In the novel people become ill and weaken;
their hair falls out; eventually they die. No one understands
why. Historian Mark Easterbrook starts to investigate. Soon
a friend aiding him is desperately ill, but with the aid of Ari-
adne Oliver he solves the mystery and the friend recovers.
2 No. 19-1241
The murderers had been taking wagers: someone who want-
ed another person’s death would wager that the other per-
son would live and deposit the stakes with a bookie; the
gang would arrange for the bebor to “lose” (and themselves
to win) because each intended victim would be poisoned.
The obscure symptoms of thallium poisoning enabled them
to kill people for years before being caught.
In 2002 Alice Minter became ill and weakened; her hair
fell out; while in a hospital she entered a coma and seemed
on the brink of death. Medical tests superior to those availa-
ble in 1961 revealed the cause: her blood and urine contained
vastly more thallium than the natural concentration. For a
few months her fiancé Adetokunbo Fayemi had been provid-
ing some of her food and drink (something that continued
while she was in the hospital). Seven of Minter’s friends and
relatives who ate occasionally at her home or hospital room
also suffered from thallium poisoning, though to a lesser de-
gree. Her dog died of thallium poisoning after it ate scraps
from her table.
Evidence at Fayemi’s trial for abempted murder showed
that he had purchased 50 grams of thallium sulfate, enough
to kill about 50 people. Fayemi falsely told the supplier that
he needed the substance for research but asserted in court
that he and Minter wanted it to kill rats and mice, a forbid-
den use. Fayemi’s defense was that Minter had been careless
with her share of the poison, but the fact that Fayemi often
ate at Minter’s house without showing any traces of thallium
poisoning—and that a good deal of thallium was found in a
salt shaker (thallium sulfate is a tasteless white powder that
looks like salt) in Fayemi’s kitchen—embarrassed that de-
fense. A toxicologist testified that Fayemi’s body contained
No. 19-1241 3
only the amount of thallium that would be expected in one
who handled the substance but did not ingest any. The jury
also heard that Fayemi owned many other poisons and had
threatened to kill Minter if she left him.
The jury convicted Fayemi of abempting to murder
Minter plus seven counts of aggravated babery with respect
to the seven other victims. He was sentenced to 27 years in
prison. The convictions were affirmed on appeal, and a state
court rejected a collateral aback. 2016 IL App (4th) 140480-U
(June 23, 2016). A federal judge denied his petition for a writ
of habeas corpus under 28 U.S.C. §2254. 2019 U.S. Dist. LEXIS
3814 (C.D. Ill. Jan. 9, 2019).
The only argument that has made it to this court is that
Fayemi’s trial lawyer violated the Sixth Amendment (ap-
plied to the states through the Fourteenth) by telling the ju-
rors, in his opening statement, that Fayemi would testify.
Counsel used this to introduce the theory of defense—that
Minter asked Fayemi to get the thallium for her and was
careless with it. Fayemi had told his lawyer that he would
testify. But after the state judge decided that some of his pri-
or convictions, plus evidence that he owned and had anno-
tated at least one book about how to poison people, could
come in on cross-examination, counsel persuaded Fayemi
not to testify. Fayemi waived that right in open court. On
collateral review his theory is that a lawyer furnishes ineffec-
tive assistance by promising that the defendant will testify,
when the defendant may change his mind. Every judge who
has looked at the case so far has rejected that argument.
We may assume that counsel’s strategy backfired when
Fayemi changed his mind, though it is hard to presume that
the jury held this against the defense. It was given a stand-
4 No. 19-1241
ard instruction not to draw an adverse inference. And men-
tion of potential testimony gave counsel a means to intro-
duce the theory of defense before the jury heard the prosecu-
tion’s case. Minter testified, for example, that she had never
heard of thallium before her illness and did not ask for any
from Fayemi; counsel’s opening statement may have helped
the jurors keep open minds about that subject pending the
defense case. Sometimes lawyers take risks that seem justi-
fied but do not pan out; this may have been such a situation.
Strickland v. Washington, 466 U.S. 668 (1984), holds that, to
establish ineffective assistance, the defendant must show
both deficient performance and prejudice. That standard re-
quires deference to counsel’s decisions. And the 1996
amendment to §2254(d)(1) adds a layer of deference to the
state judiciary by providing that federal collateral relief may
not be granted unless the state court has rendered “a deci-
sion that was contrary to, or involved an unreasonable ap-
plication of, clearly established Federal law, as determined
by the Supreme Court of the United States”. (There are other
routes to collateral relief, but this is the only one that mabers
to Fayemi.) The Justices have called the result a “doubly def-
erential” standard. Knowles v. Mirzayance, 556 U.S. 111, 123
(2009). The state’s appellate court cited Strickland and quoted
the central features of its standard, so §2254(d)(1) applies.
Fayemi makes a standard Strickland argument but im-
plies in several portions of his brief that it is automatically in-
effective assistance—in other words, that a defendant need
not show prejudice—when in an opening statement a lawyer
promises to present a key witness who never testifies. He
cites Barrow v. Uchtman, 398 F.3d 597, 606 (7th Cir. 2005), and
Hampton v. Leibach, 347 F.3d 219, 257 (7th Cir. 2003), which
No. 19-1241 5
deprecated any promise that the defendant will testify, and
asserts that “such an error is both objectively unreasonable
and prejudicial to the defendant.” We address that possibil-
ity before turning to the normal Strickland inquiry.
Neither Barrow nor Hampton holds that an unfulfilled
promise brings a case within the scope of United States v.
Cronic, 466 U.S. 648, 659 (1984), which says that prejudice
need not be shown if the lawyer does not appear for trial.
See also Garza v. Idaho, 139 S. Ct. 738 (2019) (lawyer who fails
to take an appeal). Mistakes in handling trials, by contrast,
are the domain of Strickland. We have been told not to extend
Cronic on collateral review. See, e.g., Woods v. Donald, 575
U.S. 312 (2015); Wright v. Van PaLen, 552 U.S. 120 (2008).
It would not be sound to read Barrow or Hampton as an-
nouncing a per se rule that prejudice does not maber—and,
at all events, they cannot be applied to proceedings within
the scope of §2254(d)(1), which tells us that only decisions of
the Supreme Court maber on collateral review of state-court
judgments. A court of appeals must not rely on its own prec-
edents as the basis of collateral relief. See Kernan v. Cuero,
138 S. Ct. 4 (2017). See also Wilborn v. Jones, No. 18-1507 (7th
Cir. July 6, 2020). And the Supreme Court has never hinted
at a per se rule that defense lawyers must keep all promises
made in opening statements, even if a mid-trial change in
circumstances alters the defense strategy.
Still, Fayemi contends that the appellate court’s decision
was “contrary to” Strickland because the opinion misstates
what is required to show prejudice. It recited the standard
three times. First it said that “[p]rejudice is established when
a reasonable probability exists that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have
6 No. 19-1241
been different.” 2016 IL App (4th) 140480-U at ¶46. That’s
exactly what the Supreme Court said in Strickland, 466 U.S.
at 694. But in ¶48 the court quoted an earlier state decision
as asking whether the result of the case “would likely have
been different”, a phrase it repeated in ¶50. This shows ac-
tion “contrary to” Strickland, Fayemi insists. Yet we do not
abribute to the state’s judiciary an unexplained replacement
of the correct standard with an incorrect one. It is more re-
spectful to treat the language in ¶¶ 48 and 50 as shorthand
versions of the complete statement at ¶46. The Supreme
Court has encountered incomplete or inaccurate shorthand
before and held that it does not justify relief, as long as the
state court makes clear its understanding of the correct
standard. See Holland v. Jackson, 542 U.S. 649, 654–55 (2004);
Woodford v. ViscioLi, 537 U.S. 19, 22–24 (2002). See also, e.g.,
Sussman v. Jenkins, 636 F.3d 329, 359–60 (7th Cir. 2011); Woods
v. SchwarN, 589 F.3d 368, 378 n.3 (7th Cir. 2009); Stanley v.
Bartley, 465 F.3d 810, 813 (7th Cir. 2006).
Because the state court did not render a decision “contra-
ry to” law clearly established by the Supreme Court, we ask
whether it applied that established law “unreasonably”. It
did not. The state’s appellate judges concluded that, whether
or not counsel’s performance was deficient, there was no
possibility of prejudice. The decision did not turn on a line
between “reasonable probability” and some other standard.
Instead the court remarked that the evidence against Fayemi
was “overwhelming” (¶49). The evidence we have men-
tioned deserves that label, and there was more. The trial
judge told the jury to disregard Fayemi’s decision not to tes-
tify. It is inconceivable that one sentence in the opening
No. 19-1241 7
statement (counsel’s sole mention that the jurors would hear
from Fayemi) could have affected this verdict.
AFFIRMED