Tyrus Coleman v. Ron Neal ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3264
TYRUS D. COLEMAN,
Petitioner-Appellant,
v.
RON NEAL, Warden, Indiana State Prison,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:16-cv-301 PPS — Philip P. Simon, Judge.
____________________
ARGUED OCTOBER 1, 2020 — DECIDED MARCH 11, 2021
____________________
Before EASTERBROOK, MANION, and ROVNER, Circuit Judg-
es.
PER CURIAM. Tyrus Coleman is serving a 45-year sentence
for the aXempted murder of Anthony Dye. He was tried
twice. The jury in the first trial acquiXed him of murdering
Jermaine Jackson but could not reach a unanimous verdict
on the charge of aXempting to murder Dye. At the second
trial, which was limited to the aXempted-murder charge, the
jury returned a guilty verdict. Coleman says that this se-
2 No. 18-3264
quence violates the Double Jeopardy Clause of the Fifth
Amendment, applied to the states through the Due Process
Clause of the Fourteenth. Coleman also accuses his lawyer of
providing ineffective assistance at the second trial. State
courts rejected both of these arguments, as did a federal dis-
trict court. 2018 U.S. Dist. LEXIS 76497 (N.D. Ind. May 7,
2018), reconsideration denied, 2018 U.S. Dist. LEXIS 160799(N.D. Ind. Sept. 20, 2018).
The events were captured on a surveillance camera. Both
juries saw this video. The district court reviewed it and con-
cluded that the Indiana Supreme Court had narrated the
facts accurately:
Tyrus Coleman shot his friends Anthony Dye and Dye’s son
Jermaine Jackson during a confrontation on Coleman’s property,
where Coleman operated a music recording studio. The confron-
tation stemmed from an event occurring approximately four
months earlier in which Omar Sharpe, one of Coleman’s musi-
cian clients, robbed Dye at gunpoint. Coleman retrieved part of
the stolen property from Sharpe and returned it to Dye. [Jack-
son] was irritated when he later learned that Sharpe had robbed
his father, but Dye asked him not to get involved. On the after-
noon of the shootings, [Jackson] discovered that Sharpe was pre-
sent at Coleman’s studio and frantically phoned Dye to “[c]ome
over here right now.” Armed with a handgun Dye headed to
Coleman’s studio. In the meantime an armed and agitated [Jack-
son] pushed open the door to the studio and aXempted to enter.
Sharpe, who was present inside, prevented [Jackson’s] entry and
closed the door. Exiting the studio Coleman aXempted to calm
[Jackson] and to dissuade him from trying to enter. Coleman
called a neighbor to come over to help calm [Jackson]; he also
called his business partner to inform him of the situation. The
neighbor testified that he tried to talk with [Jackson] by telling
him what he [Jackson] was doing “wasn’t worth it. Just go ahead
and leave. There was kids around and people around that didn’t
have nothing to do with what they was angry about.” According
No. 18-3264 3
to the witness [Jackson] responded by saying, “F* *k that. He
didn’t think about that s* *t when he did the s* *t to my Daddy.”
Coleman armed himself and walked back and forth in front of
the studio door holding his handgun at his side. As Coleman
was making a phone call, Dye came into the yard through a front
gate carrying a handgun which was pointed toward the ground.
Dye strode toward his son [Jackson], who was standing next to
Coleman on the patio in front of the studio. Within three sec-
onds, the following occurred: Dye stepped onto the patio where
[Jackson] and Coleman were standing. As Dye stepped in front
of Coleman, Coleman raised his gun and fired at Dye, who im-
mediately fell to the ground. Coleman then shot Dye a second
time. At that point Coleman “turned to Jermaine [Jackson].”
Coleman saw that [Jackson’s] handgun, which before that time
had been concealed under his shirt and in a holster, was “point-
ed at [Coleman],” and Coleman shot [Jackson]. [Jackson] fell to
the ground and died at the scene as a result of his injuries. After
the shooting, Coleman drove to Milwaukee disposing of his
weapon along the way. Several days later he returned to Elkhart
and surrendered to the police.
Coleman v. State, 946 N.E.2d 1160, 1163–64 (Ind. 2011).
Coleman contends that the first jury must have found
that he acted in self-defense when killing Jackson and that
this conclusion necessarily applies to Dye as well. He relies
on Ashe v. Swenson, 397 U.S. 436 (1970), and its successors,
which hold that principles of issue preclusion are part of the
rule against double jeopardy. The parties have sparred over
the extent to which 28 U.S.C. §2254(d)(1) applies to the Indi-
ana Supreme Court’s contrary conclusion. We need not re-
solve that debate, because it does not require even an ounce
of deference to conclude that Coleman’s acquiXal on the
murder charge does not establish that he acted in self-
defense when shooting Dye.
4 No. 18-3264
Currier v. Virginia, 138 S. Ct. 2144, 2149–50 (2018), tells us
to read acquiXals for the least they must establish, not the
most that they might represent. It is scarcely necessary to do
more than reread the state court’s summary of the facts to
conclude that the jury in the first trial readily could have
found that Coleman tried to defend himself against Jackson
but had no such justification for shooting Dye. By the time
Coleman shot Jackson, his father Dye was on the ground
with two bullets in him, and Jackson had opened fire at
Coleman. A jury might well have thought that Coleman re-
turned Jackson’s fire to defend himself. But that does not
imply anything about Dye’s earlier shooting. Dye had a gun
but was not pointing it at Coleman and did not pull the trig-
ger. Coleman nonetheless shot Dye twice, including once af-
ter he was on the ground.
We do not know why the first jury was unable to reach a
unanimous verdict with respect to Coleman’s shooting of
Dye. Perhaps some jurors were impressed by Coleman’s
knowledge that Dye had a reputation for violence. That rep-
utation may have left Coleman in fear of a gun-toting Dye—
but the jury’s acquiXal on the charge that Coleman mur-
dered Jackson does not establish in Coleman’s favor any fact
such as the possibility that Coleman shot Dye because of that
fear. Dye and Jackson are different people who posed differ-
ent threats (if Dye posed any at all). Coleman tries to tease a
form of retroactive self-defense toward Dye from the jury
instructions about crimes commiXed close in time, but we
find the argument implausible—and it is at all events an ar-
gument based on state law that the state’s highest court evi-
dently found wanting. Given the rule of Currier, the Double
Jeopardy Clause does not entitle Coleman to be acquiXed on
both charges.
No. 18-3264 5
This leaves Coleman’s aXack on the performance of his
lawyer. The state’s highest court applied the rule articulated
in Strickland v. Washington, 466 U.S. 668 (1984), but in one re-
spect it did so unreasonably: when deciding whether Cole-
man suffered prejudice, it viewed each of the asserted errors
in isolation, rather than asking whether counsel’s errors
were prejudicial cumulatively. Coleman commits the oppo-
site error: instead of asking whether the defense as a whole
was constitutionally adequate, he supposes that any one
mistake entitles him to collateral relief. Strickland says, how-
ever, that it is the full course of representation that maXers.
466 U.S. at 690–96. There is a potential exception for a
whopper of an error that nullifies all of the good things that
counsel did, see Williams v. Lemmon, 557 F.3d 534, 538 (7th
Cir. 2009), but none of the arguments that Coleman advances
falls in that category.
The district judge covered Coleman’s arguments thor-
oughly, 2018 U.S. Dist. LEXIS 76497 at *18–32, and supplied
the all-things-considered evaluation of prejudice that the
state court omiXed, id. at *32–33. We need not repeat the dis-
trict court’s analysis, though we reproduce its handling of
one issue to give a flavor of Coleman’s contention and the
district court’s evaluation.
Dye testified for the prosecution at both trials. In two re-
spects his testimony was subtly different, and Coleman’s
lawyer did not try to impeach Dye at the second trial on the
basis of an asserted inconsistency. Here’s what the district
court wrote (id. at *23–25) (boldface and bracketed material
in original; record citations omiXed):
Coleman argues that trial counsel was ineffective for failing to
impeach Dye with inconsistent testimony from the first trial and
6 No. 18-3264
pending charges and failing to question Dye regarding his gun.
The first inconsistency highlighted by Coleman is that, at the
first trial, Dye testified that, prior to the shootings, he might have
asked Jackson about Omar Sharpe’s location, but, at the second
trial, he testified that he did not say anything. Coleman also
notes the following inconsistency in the testimony regarding
Coleman’s involvement in the prior robbery of Dye. At the first
trial here’s what Dye said:
Trial Counsel: And you didn’t — you knew that [Coleman]
wasn’t involved in this robbery?
Dye: Well, I protected him to the end. Anytime somebody
would ask me I would always say no. [Coleman] ain’t have
nothing to do with it. That was my take on it.
And then at the second trial, here’s what he said:
Trial Counsel: Okay. You knew Tyrus didn’t have anything
to do with the robbery, right, the — Omar’s robbery of you?
Dye: At first. I mean, when it first happened, you know, I
gave him the benefit of the doubt, you know. Everybody
else, though, kept puXing him in it, but I protected him til
the end.
In my view, these are trifling discrepancies in Dye’s testimony.
Trial counsel may have felt that pointing out such modest incon-
sistencies would have been silly and nitpicky. That’s a judgment
call.
The Court of Appeals determined that counsels’ failure to im-
peach did not result in prejudice under Strickland; that decision
was entirely reasonable. After reviewing the record, I find that
the State court’s determination regarding trial counsel’s failure
to impeach Dye was not objectively unreasonable. Coleman ar-
gues that the failure to impeach prejudiced him because the
prosecution’s case primarily relied on Dye’s testimony and the
video recording, which meant that Dye’s credibility was pivotal
to the jury’s decision. Coleman does not further elaborate on this
argument, and it is not clear that Dye’s credibility was a material
consideration by the jury. The entire episode was captured on
No. 18-3264 7
video for the jury to review. In all likelihood, the video is what
made the case. In any event, Coleman has not cited any portion
of Dye’s testimony that substantially undermined his defense.
Coleman also argues that trial counsel was ineffective for failing
to ask Dye whether his gun was loaded. The appellate court re-
jected this claim, reasoning that whether the gun was loaded was
irrelevant because Coleman had no knowledge regarding this
detail. In other words, whether the gun was loaded or not was
neither here nor there because there was no way for Coleman to
have known this, and that is the only person that maXers. The
court concluded that asking this question would not have
changed the outcome of the proceedings, and therefore there is
no prejudice under Strickland. This conclusion is entirely reason-
able.
We agree with the district judge’s analysis. And we add that
the overall performance of counsel was admirable. The
shootings were captured on video, yet counsel persuaded
the first jury to acquit on one count and not reach a verdict
on the other. That counsel could not do as well with the sec-
ond jury does not demonstrate a violation of the Constitu-
tion.
AFFIRMED