Allen, Darryl v. Chandler, Nedra ( 2009 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 07-1403
    D ARRYL A LLEN,
    Petitioner-Appellant,
    v.
    N EDRA C HANDLER,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 02 C 7631—Marvin E. Aspen, Judge.
    A RGUED JULY 8, 2008—D ECIDED F EBRUARY 11, 2009
    Before B AUER, C OFFEY, and R OVNER, Circuit Judges.
    C OFFEY, Circuit Judge. The General Store in Joliet,
    Illinois, was the scene of an armed robbery on the night
    of October 26, 1990, and the store clerk on duty Cheryl
    Smithson identified Darryl Allen as the perpetrator—first
    from a photographic array and also during his two
    state trials. The first of the two trials ended in a dead-
    locked jury, but the second trial resulted with Allen
    being convicted of armed robbery, which was upheld on
    appeal. In the petitioner’s initial appeal of his conviction
    2                                               No. 07-1403
    he alleged that his trial counsel was ineffective for
    eliciting testimony from Detective Farmer referring to the
    defendant’s post-arrest silence, and also the petitioner
    argued that his appellate counsel was ineffective for
    failing to raise the issue of trial counsel’s ineffectiveness
    on direct appeal. The state appellate court rejected each of
    these arguments, holding that, even if counsel’s perfor-
    mance was deficient, he was not prejudiced by the trial
    counsel’s question because the evidence of guilt was
    overwhelming. We affirm.
    I.
    Allen’s second jury trial lasted less than a day. As
    previously pointed out the store clerk identified the armed
    robber and during her testimony referred to him as a
    frequent customer and went on to explain that he had
    visited the store on two different occasions on the night
    of the robbery. Smithson’s testimony also revealed that
    the robber was unmasked, which afforded her ample
    time to observe and recognize him. She also mentioned
    that he had been a frequent patron of the store. She
    further stated that the unmasked robber displayed a
    gun while standing within a foot of her and directed her
    to give him the money in the cash register. Shortly after
    the crime, the witness Smithson immediately identified
    Allen as the armed robber during a photo lineup and again
    at trial. In addition to Smithson’s eyewitness account, a
    videotape of the robbery was displayed to the jury. Even
    though the pictures on the videotape film were not of
    perfect quality, they were of sufficient quality to assist
    No. 07-1403                                                3
    the jury in substantiating Smithson’s testimony as well
    as her identification of Allen as the robber.
    Finally, the State as proof of consciousness of guilt
    offered the evidence that Allen fled to Georgia about two
    months after the crime. It is well established that evidence
    of flight is admissible as a circumstance tending to show
    a consciousness of guilt. See Illinois v. Pursley, 
    672 N.E.2d 1249
    , 1255 (1996).
    It is also interesting to note that during his cross-exami-
    nation of the investigator, defense counsel, as distin-
    guished from appellate counsel, elicited the following
    testimony concerning the post-arrest questioning of Allen:
    Counsel:    Okay. Now, you said that you read Mr.
    Allen the rights off the Miranda form, cor-
    rect?
    Farmer:     That is correct.
    Counsel:    But you filled the answers out?
    Farmer:     That is correct.
    Counsel:    Okay. Isn’t it a fact that Mr. Allen refused
    to answer any questions?
    Farmer:     He refused to answer questions in refer-
    ence to the case in which I asked him
    about.
    Counsel:    Okay. So, he wasn’t cooperating with you,
    correct?
    Farmer:     That is correct.
    The jury returned a verdict of guilty, and the judge sen-
    tenced Allen to forty-eight years’ imprisonment.
    4                                              No. 07-1403
    On appeal, Allen challenged the trial court’s refusal to
    instruct the jury on robbery, a lesser-included offense.
    He also argued that the presentence investigation
    report was limited because the probation officer should
    have interviewed more people. Allen undermined this
    contention by refusing to be interviewed or cooperate
    in the preparation of the presentence report. Finally,
    the defendant complained that the trial judge abused
    his discretion when sentencing him to forty-eight years
    in prison. The appellate court rejected this argument as
    Allen had been convicted of a number of crimes (at least
    twenty other armed robberies)—including a prior armed
    robbery at the same store. The latest robbery was com-
    mitted while he was on parole status. Allen’s conviction
    and sentence of forty-eight years were affirmed on appeal.
    See Allen, 619 N.E.2d at 827. Allen next brought a motion
    for leave to appeal, which the state supreme court
    denied. People v. Allen, 
    624 N.E.2d 809
     (Ill. 1993).
    Allen then proceeded with a second round of
    postconviction litigation in the Illinois courts, arguing
    that his trial counsel rendered ineffective assistance by
    eliciting testimony concerning his post-arrest silence, and
    that prior appellate counsel was ineffective in not raising
    this issue on direct appeal. The state appellate court did
    not reach the question of whether trial counsel’s elicita-
    tion of the testimony fell outside the range of profession-
    ally competent assistance, and rather focused on the
    prejudice prong. Over a dissent, the court upheld the
    denial of relief on this issue, reasoning that Allen could
    not have been prejudiced because the totality of the
    evidence of his guilt was “overwhelming.” People v.
    No. 07-1403                                               5
    Allen, No. 3-99-9761 (Ill. App. Ct. June 11, 2001) (unpub-
    lished). The state appellate court’s majority explained that
    Smithson’s identification of Allen was both prompt and
    strong because she had more than ample opportunity to
    observe the unmasked perpetrator at close range, and
    also remembered him as a frequent customer of the
    store, and furthermore she had opportunities to observe
    him on two separate occasions in close proximity (as little
    as one foot) on the evening of the robbery. Id. at 5. The
    majority added that the surveillance video “tended to
    corroborate” Smithson’s testimony and that Allen’s
    flight and arrest in the State of Georgia some two
    months after the robbery “tend[ed] to show consciousness
    of guilt.” Id. The state supreme court again denied leave
    to appeal. People v. Allen, 
    763 N.E.2d 320
     (Ill. 2001).
    Subsequently, Allen filed a petition for writ of habeas
    corpus in federal court. The district court concluded
    that the state appellate court’s application of Strickland
    was not unreasonable, and thus controlling. Allen chal-
    lenges that conclusion here.
    II.
    We agree that Strickland has reasonably been applied
    to Allen’s claim of ineffective assistance of counsel. A
    federal court may not grant a habeas corpus petition
    unless the state court’s adjudication of the claim
    “resulted in a decision that was contrary to, or involved
    an unreasonable application of clearly established Federal
    law.” 
    28 U.S.C. § 2254
    (d)(1). Under the Antiterrorism and
    Effective Death Penalty Act (AEDPA), ineffective assis-
    6                                                No. 07-1403
    tance of counsel is a mixed question of law and fact
    reviewed de novo with a strong presumption that the
    attorney performed effectively. See United States v.
    Fudge, 
    325 F.3d 910
    , 923 (7th Cir. 2003). The law gov-
    erning ineffective assistance claims, announced in Strick-
    land, requires that Allen must demonstrate that (1) coun-
    sel’s performance fell “outside the wide range of profes-
    sionally competent assistance” and (2) “there is a reason-
    able probability that, but for counsel’s unprofessional
    errors, the result of the proceeding would have been
    different.” Strickland, 466 U.S. at 690, 694. The bar for
    establishing that a state court’s application of the
    Strickland standard was “unreasonable” is a high one,
    and only a clear error in applying Strickland will support
    a writ of habeas corpus. To demonstrate prejudice
    under Strickland, the petitioner must establish “that
    there is a reasonable probability that, but for counsel’s
    unprofessional errors, the result of the proceeding
    would have been different. A reasonable probability is a
    probability sufficient to undermine confidence in the
    outcome.” Id. at 694. The state appellate court rejected
    this claim on the merits, holding that petitioner could not
    satisfy Strickland’s prejudice prong because over-
    whelming evidence supported his conviction.
    The petitioner advances three other challenges to the
    state appellate court’s adjudication of his claims. Initially,
    he argues that the court failed to apply the correct legal
    standard for prejudice, resulting in a decision contrary
    to Strickland. Second, he contends that, to the extent the
    court applied the correct standard for prejudice under
    Strickland, it was an unreasonable application of the law
    No. 07-1403                                                  7
    to the facts of the case. Finally, he argues that the court
    did not properly consider his claim that his appellate
    attorney was ineffective.
    A. A decision “contrary to” Strickland’s prejudice
    prong.
    Allen argues that the state court’s decision was “con-
    trary to” the prejudice prong of Strickland because, in
    assessing whether counsel’s performance prejudiced him,
    the court wrote that counsel’s alleged error “did not tip
    the scales of justice unfairly in favor of the state.” Although
    the court repeatedly referred to Strickland, Allen con-
    tends that the state appellate court’s use of its “scales of
    justice” language raised his burden of proof, essentially
    requiring him to show that it is “more likely than not” that
    his attorney’s deficient performance altered the outcome
    of the case—a standard the Supreme Court explicitly
    rejected in Strickland, 466 U.S. at 693.
    Allen concedes in his reply brief that he waived this
    argument by failing to raise it in the district court. See
    Obriecht v. Raemisch, 
    517 F.3d 489
    , 493 (7th Cir. 2008). The
    argument, even if properly raised, is meritless. As
    relevant here, a state court’s decision is “contrary to”
    federal law if it is “substantially different” from or “oppo-
    site to” relevant Supreme Court precedent. Williams v.
    Taylor, 
    529 U.S. 362
    , 405 (2000). No doubt there is a seman-
    tic difference between the “tipping the scales of justice”
    standard and the actual Strickland test. But there is no
    reason to think that the standard is substantially different
    8                                                  No. 07-1403
    from the Strickland test, nor that it is the equivalent of a
    “more likely than not” standard. “Tipping the scales
    of justice unfairly” is a vague metaphor that lacks
    any obvious connection to any legal standard. The
    parties have not identified a source for the language, but
    we note that it is currently used in Illinois cases to
    describe the showing of prejudice required under the
    state’s “plain error” test. See, e.g., People v. Piatkowski, 
    870 N.E.2d 403
    , 411 (Ill. 2007) (allowing review of unpreserved
    error, regardless of its seriousness, if it is “clear or obvi-
    ous” and “the evidence is so closely balanced that the
    error alone threatened to tip the scales of justice against
    the defendant.”). That might suggest that the language
    is more akin to a “clear probability” standard, but it’s
    impossible to know—not only because the Illinois courts
    to date have not said so, but because the language had not
    been used at the time of the state appellate court’s
    decision in 2001. Given this ambiguity, along with the
    fact that earlier in its opinion the Illinois appellate court
    cited Strickland, a single reference to “tipping the scales”
    does not demonstrate that the court applied a standard
    contrary to clearly established federal law. Rather, “it is
    more likely that the court stated its conclusion
    imprecisely than that it applied a different standard.”
    Stanley v. Bartley, 
    465 F.3d 810
    , 813 (7th Cir. 2006); see
    Eckstein v. Kingston, 
    460 F.3d 844
    , 850-51 (7th Cir. 2006).
    B. An “unreasonable application” of Strickland’s
    prejudice prong.
    Allen also contends that the state appellate court unrea-
    sonably applied Strickland in concluding that the evi-
    No. 07-1403                                                9
    dence supporting his conviction was “overwhelming.”
    He alleges that the state’s single-eyewitness case
    coupled with the prior mistrial show that the judge’s
    verdict was a close call. And he argues that, because
    the case hinged on Smithson’s identification, Detective
    Farmer’s testimony that he was silent and uncooperative
    when asked about the crime might have eliminated
    any reasonable doubt in the jurors’ minds.
    A state court’s decision is “an unreasonable applica-
    tion” of federal law if the court “identifies the correct
    governing legal principle” from the Supreme Court’s
    decisions but “unreasonably applies that principle to
    the facts of the prisoner’s case.” Williams, 
    529 U.S. at 413
    .
    An “unreasonable application” is one that is “not only
    erroneous, but objectively unreasonable,” Yarborough v.
    Gentry, 
    540 U.S. 1
    , 5 (2003), which in turn means “some-
    thing like lying well outside the boundaries of permissible
    differences of opinion,” Jackson v. Frank, 
    348 F.3d 658
    ,
    662 (7th Cir. 2003) (citation and quotation marks omit-
    ted). In other words, “a habeas petitioner must show that
    the state court’s decision unreasonably applied clearly
    established Supreme Court precedent by unreasonably
    extending a rule to a context where it should not have
    applied or by unreasonably refusing to extend a rule to a
    context where it should have applied.” Virsnieks v.
    Smith, 
    521 F.3d 707
    , 713 (7th Cir. 2008).
    We are of the opinion that the state appellate court
    reasonably applied Strickland when it concluded that
    the evidence presented against Allen was compelling
    enough to hold that he was not prejudiced by his
    10                                              No. 07-1403
    attorney’s elicitation of Farmer’s testimony. Although
    the case against Allen relied primarily on Smithson’s
    eyewitness identification, that identification was not
    only reliable but very strong. She had an opportunity to
    observe the unmasked robber at close range, fingered
    Allen without hesitation in a photographic array as well
    as during her testimony at two trials, and identified him
    as a frequent customer. The surveillance video, mean-
    while, corroborated her account of the robbery. True,
    the video of itself was not of sufficient clarity to allow
    the jury to independently identify the unmasked robber
    as Allen, but the video’s technical limitations did not
    undermine Smithson’s account; they simply could not
    fully corroborate it. Meanwhile, Detective Farmer’s testi-
    mony that Allen did not respond and was uncooperative
    when questioned about the crime, while unhelpful for
    Allen’s defense, was both short and brief. Neither side
    referenced the testimony during closing arguments. See
    Bieghler v. McBride, 
    389 F.3d 701
    , 705-07 (7th Cir. 2004);
    Splunge v. Parke, 
    160 F.3d 369
    , 372-73 (7th Cir. 1998). In
    light of the totality of the wealth of evidence concerning
    the petitioner’s guilt, it is evident from the record that
    the attorney’s questions to Detective Farmer disclosing
    Allen’s post-arrest silence did not tip the scales of justice
    unfairly in favor of the State. Furthermore, even if we
    were to hold that the attorney’s cross-examination was
    objectively unreasonable, her representation was not
    ineffective because the defendant was not prejudiced by
    the testimony.
    Nor will we draw any inference from Allen’s initial
    mistrial, which could have been the result of a variety of
    No. 07-1403                                               11
    circumstances that are irrelevant to our consideration of
    prejudice. Although the fact of a prior mistrial might
    conceivably give some support to the defendant’s claim
    that the case against him was weak, it does not, on its
    own, show that an error was outcome-determinative.
    Compare Adams v. Bertrand, 
    453 F.3d 428
    , 438 (7th Cir. 2006)
    (attorney’s failure to pursue witness with exculpatory
    testimony was prejudicial error where evidence was
    “relatively thin” and codefendant who called witness
    received mistrial), with Toliver v. Hulick, 
    470 F.3d 1204
    ,
    1208 (7th Cir. 2006) (prior mistrial irrelevant to show
    prejudice from trial court’s refusal to let defendant cross-
    examine principal witness about immigration status,
    where defendant confessed and witness’s testimony was
    strong). Each trial is a distinct event with many nuances
    that transcripts can never fully capture; we refuse to
    draw any conclusions based on the mere fact that two
    different events produced two different results. Because
    the evidence of Allen’s guilt is more than substantial,
    there is no reason to dwell on his prior mistrial.
    C. Ineffective assistance of appellate counsel.
    Finally, Allen claims that his appellate attorney was
    ineffective in failing to argue his Strickland claim. When
    an appellate counsel omits “a significant and obvious
    issue . . . [the court] will deem his performance deficient.”
    Mason v. Hanks, 
    97 F.3d 887
    , 892-93 (7th Cir. 1996). And
    if raising the issue “may have resulted in reversal of the
    conviction, or an order for a new trial, [the court] will
    deem the lack of effective assistance prejudicial.” 
    Id.
    (internal citations and quotations omitted).
    12                                               No. 07-1403
    In both the Illinois appellate court as well as the
    district court, Allen’s claim was rejected on the
    grounds that Allen was not prejudiced by his trial attor-
    ney’s error, and thus appellate counsel could not have
    been ineffective in failing to raise the argument. Allen
    challenges this conclusion, noting that his ineffective-
    assistance claim should or would have been judged
    under a de novo standard of review had it been raised on
    direct appeal. See People v. Bailey, 
    874 N.E.2d 940
    , 945 (Ill.
    App. Ct. 2007). But on postconviction review the state
    appellate court explicitly rejected the state’s waiver
    argument and evaluated the Strickland claim “on its
    merits,” applying de novo review.
    A FFIRMED.
    R OVNER, Circuit Judge, dissenting. The right to coun-
    sel—to effective counsel—ensures a fair trial by requiring
    that counsel vigorously advance a defendant’s claim of
    innocence. See Gideon v. Wainwright, 
    372 U.S. 335
    , 344
    (1963); Strickland, 466 U.S. at 684-86. But here counsel not
    only failed to defend Darryl Allen at all stages of his trial,
    counsel actually harmed him by eliciting testimony from
    the arresting officer, Joseph Farmer, that Allen said
    nothing to defend himself after his arrest. The state ap-
    No. 07-1403                                               13
    pellate court held that Allen was not prejudiced by this
    error, and the majority agrees. Because I believe that the
    state appellate court unreasonably applied Strickland in
    what was essentially a one-witness case, I am compelled
    to dissent.
    I join with the majority’s holdings in section II(A) and
    II(C) regarding Allen’s argument that the state court
    applied the wrong standard to his claims of ineffective
    assistance of trial and appellate counsel. But I part ways
    with the majority in section II(B), which holds that the
    state appellate court did not unreasonably apply
    Strickland in concluding that the evidence against Allen
    was “overwhelming.” I conclude that the state court did
    unreasonably apply Strickland in this regard. I reach this
    conclusion even though I agree that the testimony of an
    eyewitness like Cheryl Smithson can be sufficient to
    affirm a conviction. See United States ex rel. Hampton v.
    Leibach, 
    347 F.3d 219
    , 255 (7th Cir. 2003) (holding that
    even vulnerable eyewitness testimony can be “more than
    sufficient to convict”). As the majority rightly points out,
    Smithson observed the robber at close range, she
    fingered Allen without hesitation in a photographic
    array and at trial, and she said she had seen him before.
    But the relevant issue here is not the sufficiency of
    evidence, but whether Smithson’s testimony over-
    whelmingly supports a conviction. It does not. See Krist v.
    Eli Lilly & Co., 
    897 F.2d 293
    , 297 (7th Cir. 1990) (noting
    that confidence in a memory does not necessarily
    support its accuracy); Elizabeth F. Loftus et al., Eyewitness
    Testimony: Civil and Criminal § 4-14 (4th ed. 2007) (noting
    14                                              No. 07-1403
    that a victim can confuse recent acquaintances with the
    perpetrator of a crime). The evidence against Allen was
    particularly weak: The surveillance video—the state’s
    only physical evidence—does not corroborate Smithson’s
    testimony that the perpetrator had entered and left the
    store shortly before the robbery, and the video was not
    clear enough to support her identification. The state’s
    only other evidence—testimony intended to show that
    Allen fled the state after he committed the crime—was
    meager: unremarkably, Allen was found in Atlanta,
    where his sister lives, during the Christmas holidays.
    We have repeatedly held that one eyewitness’s testi-
    mony such as Smithson’s was not “so overwhelming that
    the outcome of the trial was a foregone conclusion,”
    Hampton, 
    347 F.3d at 255
    ; see Wright v. Gramley, 
    125 F.3d 1038
    , 1043 (7th Cir. 1997) (describing as “weak” state’s
    case relying almost exclusively on testimony of two
    eyewitnesses); United States ex rel. Freeman v. Lane, No. 89
    C 4642, 
    1990 WL 70558
     at *6 (N.D. Ill. May 14, 1990)
    (evidence of guilt not overwhelming where conviction
    was based on testimony of lone eyewitness and no
    physical evidence corroborated witness’s testimony), aff’d,
    Freeman v. Lane, 
    962 F.2d 1252
     (7th Cir. 1992); see also
    Anderson v. Johnson, 
    338 F.3d 382
    , 393-94 (5th Cir. 2003)
    (describing as “relatively weak” case relying on two
    eyewitnesses’ testimony); Towns v. Smith, 
    395 F.3d 251
    , 260-
    61 (6th Cir. 2005) (describing single eyewitness’s shaky
    identification as “scant” evidence of defendant’s guilt).
    With no other evidence linking Allen to the crime,
    and with the video surveillance not corroborating
    No. 07-1403                                              15
    Smithson’s identification, Detective Farmer’s testimony
    that Allen was uncooperative and did not respond to post-
    arrest questioning acquired undeserved importance. As
    the Supreme Court explained in United States v. Hale,
    
    422 U.S. 171
    , 180 (1975), “the jury is likely to assign
    much more weight to the defendant’s previous silence
    than is warranted.” Allen’s counsel was incompetent for
    eliciting this testimony because its only probable effect
    was to sway the jurors to find guilt. Without evidence
    of Allen’s post-arrest silence, the jury would have had to
    decide whether Smithson’s identification was accurate
    and strong enough to convict—an arduous task. But
    Farmer’s testimony of Allen’s uncooperative behavior,
    and his refusal to answer questions related to the case,
    communicated to the jury that he was conscious of his
    guilt—a criminal with something to hide.
    Under these circumstances, it is not reasonable to
    describe the case against Allen as so overwhelming
    that there is not a reasonable probability that, but for
    counsel’s unexplained decision to probe the arresting
    officer about Allen’s post-arrest silence, the outcome
    would have been different. Indeed, on analogous facts
    we have concluded that two eyewitness identifica-
    tions—one by a witness who previously knew the de-
    fendant—did not constitute evidence of such an over-
    whelming character that it could sustain a conviction
    where the prosecution had commented on the defendant’s
    post-arrest silence. See United States ex rel. Ross v. Fike,
    
    534 F.2d 731
    , 734 (7th Cir. 1976).
    In fact, in the earlier trial in which the same evidence
    was presented absent the evidence of post-arrest silence
    16                                             No. 07-1403
    no guilty verdict was reached and the trial ended in a
    mistrial. Given the limited evidence of guilt in this case,
    it was an unreasonable application of Strickland to hold
    that the evidence was overwhelming and, therefore, that
    prejudice was not shown. Accordingly, I respectfully
    dissent.
    2-11-09