ANTWON FLINT, Petitioner-Appellant, v. KEVIN CARR, Secretary of the Wisconsin Department of Corrections, Respondent-Appellee.
No. 20-3165
United States Court of Appeals For the Seventh Circuit
ARGUED APRIL 22, 2021 — DECIDED AUGUST 19, 2021
Before WOOD, BRENNAN, and ST. EVE, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 1:19-cv-00411 — William C. Griesbach, Judge.
That is what happened to Antwon Flint. In his first trial in Wisconsin state court, the prosecutor moved for a mistrial based on (alleged) hearsay in Flint‘s counsel‘s opening statement. The trial court granted that motion, and a jury found Flint guilty at a second trial. Raising double jeopardy, Flint sought relief in the Wisconsin appellate courts; when that failed, he moved for federal postconviction relief. But the district court concluded that Flint failed to overcome the high hurdle for granting habeas imposed by the Antiterrorism and Effective Death Penalty Act,
We agree. Although we have our reservations about whether a mistrial should have been declared, deference to the discretion of a trial judge and to state court judgments requires that we affirm the denial of Flint‘s habeas petition under
I
A
On July 10, 2012, four men robbed a liquor store in Pleasant Prairie, Wisconsin. Hours later, three of those men also robbed a gas station in Antioch, Illinois. Surveillance video from the liquor store and gas station captured these robberies, and law enforcement eventually identified three of the men as
Five days later, on July 15, 2012, Cooper, Holliman, and Williams committed another robbery in Antioch. A high-speed chase ensued. Holliman and Williams died from the resulting car crash, and Cooper survived. Recovering from serious injuries, Cooper spoke to law enforcement from his hospital bed. When shown a still image from surveillance footage of the liquor store robbery, he remarked: “is it Twon?” An officer then asked who “Twon” was, and Cooper clarified that he was speaking about Antwon Flint. Although Cooper equivocated about whether it was Flint depicted in the still image, he ultimately signed a statement identifying Flint as the fourth man from the liquor store robbery in Pleasant Prairie. Flint denied involvement.
Charged with armed robbery by use of force as a party to the crime, Flint went to trial in Wisconsin state court on June 16, 2014. The prosecutor gave his opening statement and described, among other things, the testimony that Cooper would provide during trial—mainly, his identification of Flint as the fourth man from the liquor store robbery. Identifying Flint “wasn‘t easy” for Cooper, the prosecutor told the jury, because Cooper “was giving up somebody he had known a long time.” Flint‘s counsel began her opening statement by picking up on the importance of Cooper‘s testimony. After describing the circumstances of Cooper‘s hospital bed identification of Flint, she referenced the bond between the two men, stating: “Now, two months after the robbery the police find my client and interview him. My client, thinking that he‘s being cooperative, talks to them, says, yes, I know Kenneth Cooper; he and I have been childhood friends.”
On September 8, 2014, preparations for Flint‘s second trial began, but with a different trial judge presiding. Before selecting and swearing a jury, the second trial judge raised the issue of double jeopardy sua sponte and inquired about the mistrial declared in the first trial; if a “manifest necessity” had not supported that mistrial, then the protection against double jeopardy would bar a second trial. The prosecutor and Flint‘s counsel next recounted their arguments about the alleged hearsay from the first trial, although their accounts conflicted.
The second trial judge had a problem: he did not have the transcript of the first trial. Recognizing the difficulty in deciding this issue without it, the second trial judge called the judge from the first trial, whose recollection appeared to favor the prosecutor‘s account. After the jurors were selected (but before they were sworn), the second trial judge told Flint‘s
That next morning of September 9, 2014, the second trial judge—now with a transcript of the relevant trial portions in hand—found that the statements by Flint‘s counsel “were sufficient to cause a mistrial at the earlier point in the proceedings.” Flint‘s counsel, the second trial judge noted, asserted that Flint “was trying to be cooperative, which [was] an affirmative statement by the defendant.” That affirmative statement went “uncross-examined” and was thus “hearsay,” lacking corroboration from other witnesses. Similarly, affirmative statements about Flint‘s “acquaintanceship with Kenneth Cooper,” even with additional corroboration, confirmed the appropriateness of a mistrial because it was “still [Flint] speaking to the jury about it as opposed to others.” The second trial judge was therefore “not apprehensive about retrying this case.”
After a second trial, a jury found Flint guilty, and he received a sentence of seven years’ imprisonment and seven years’ supervision. As required under
In an unpublished, per curiam opinion, the Wisconsin Court of Appeals denied Flint relief. Relying on State v. Mink, 429 N.W.2d 99, 102–03 (Wis. Ct. App. 1988), that court explained that in Wisconsin, “[i]f the State moves to retry a defendant after a mistrial, the defendant must move for
Flint failed to satisfy Strickland. The Wisconsin Court of Appeals was “satisfied that the trial court properly exercised its discretion” in calling a mistrial, analyzing the manifest necessity standard from Washington under Strickland‘s prejudice prong. Flint, that court held, “assert[ed] an unsupported claim of prejudice from counsel‘s failure to move for dismissal based on double jeopardy.” Although the first trial judge did not expressly consider a curative instruction, “that does not mean he did not consider it.” Even then, “that avenue ‘will not necessarily remove the risk of bias that may be created by improper argument.‘” (quoting Washington, 434 U.S. at 513). Recognizing that Washington requires great deference to a trial court‘s discretion, the Wisconsin Court of Appeals concluded that a motion to dismiss on double jeopardy grounds “likely would have failed.” The court reasoned that “[a]n attorney is not ineffective for failing to make meritless arguments.” And “‘a failure to challenge a correct trial court ruling cannot
With his other claims rejected, Flint unsuccessfully petitioned for discretionary review by the Wisconsin Supreme Court.
B
Proceeding pro se, Flint petitioned for a writ of habeas corpus in federal district court under
The district court rejected Flint‘s contention. According to that court, application of the Mink rule here fell under Lee v. Kemna, which held that in rare instances the “exorbitant application of a generally sound rule” may render a state ground inadequate to foreclose federal habeas review. 534 U.S. 362, 376 (2002). Still, Flint‘s habeas petition failed. In a separate order, the district court concluded that the Wisconsin Court of Appeals reasonably applied federal law—here, the Supreme Court‘s decision in Washington—when deciding Flint‘s double jeopardy claim. Although the district court would not have granted a mistrial had it presided over Flint‘s first trial, AEDPA‘s stringent standard required denial of his
II
We begin with the threshold issue of procedural default, which we review de novo. Clemons v. Pfister, 845 F.3d 816, 819 (7th Cir. 2017). The state contends the district court erred when it held that Flint did not procedurally default his double jeopardy claim. To the state, the Mink forfeiture rule suffices as an adequate and independent state law ground, precluding our review. Flint disagrees. We are satisfied that procedural default does not bar our consideration of this issue.
Federal habeas courts cannot review state court judgments that rested upon adequate and independent state grounds. E.g., Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). A ground is adequate if it is “firmly established and regularly followed.” Beard v. Kindler, 558 U.S. 53, 60 (2009) (internal quotation marks omitted). And a ground is independent “if it does not depend on the merits of the petitioner‘s claim.” Triplett v. McDermott, 996 F.3d 825, 829 (7th Cir. 2021); see Stewart v. Smith, 536 U.S. 856, 860 (2002) (per curiam). As “an important ‘corollary’ to the exhaustion requirement,” Davila, 137 S. Ct. at 2064 (quoting Dretke v. Haley, 541 U.S. 386, 392 (2004)), the adequate and independent state ground bar ensures a proper respect for comity. “When a federal habeas court releases a
Even still, the Supreme Court said in Lee that a “limited category” exists of “exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question.” 534 U.S. at 376; see Walker v. Martin, 562 U.S. 307, 316 n.4 (2011) (noting same). In Lee, a defendant moved unsuccessfully for a continuance during trial after his “alibi witnesses left the courthouse” on the day of their planned testimony. 534 U.S. at 369. The Court held that the state court‘s application of the formal continuance motion rules was inadequate to bar federal habeas review, so it remanded for reconsideration on the merits. Id. at 381–83, 387–88.
“Three considerations, in combination,” led the Court to that conclusion in Lee. Id. at 381. First, “when the trial judge denied Lee‘s motion, he stated a reason that could not have been countered by a perfect motion for continuance.” Id. That “[t]he judge said he could not carry the trial over until the next day because he had to be with his daughter in the hospital” and “that another scheduled trial prevented him from concluding Lee‘s case on the following business day” were reasons that no perfect motion for a continuance could surmount. Id. Second, “no published Missouri decision direct[ed] flawless compliance with” the rules applied “in the unique circumstances [that] case present[ed]—the sudden, unanticipated, and at the time unexplained disappearance of critical,
Guided by the Court‘s considerations in Lee, we hold that Flint has met that case‘s high bar. Recall that under Mink, a defendant in Wisconsin state court “must move for dismissal on double jeopardy grounds to avoid waiver” when tried again for the same crime. 429 N.W.2d at 102. Applying that rule, the Wisconsin Court of Appeals concluded that Flint‘s failure to move to dismiss the second trial on double jeopardy grounds meant that he forfeited that argument on direct appeal and triggered review under the ineffective assistance of counsel framework.
At first glance, Flint appears to have procedurally defaulted his double jeopardy claim. “[W]hen a state refuses to adjudicate a petitioner‘s federal claims because they were not raised in accord with the state‘s procedural rules, that will normally qualify as an independent and adequate state ground for denying federal review.” Woods v. Schwartz, 589 F.3d 368, 373 (7th Cir. 2009). And forfeiture under state law is almost always such a ground. See Smith v. Winters, 337 F.3d 935, 937 (7th Cir. 2003).
But under Lee‘s first consideration, this case is different. The second trial judge raised Flint‘s double jeopardy issue sua sponte. Requiring a formal motion here—orally or in writing—to avoid forfeiture would be unnecessary: there is not
As does the second consideration—no published Wisconsin decision directed flawless compliance with the Mink rule “in the unique circumstances this case presents.” Lee, 534 U.S. at 382. We located no published Wisconsin decision applying the rule of Mink when a trial court raises double jeopardy on its own. The state can point only to an analogous case citing, though not applying, Mink in related, though not similar, circumstances. See, e.g., State v. Koller, 635 N.W.2d 838, 852 n.5 (Wis. Ct. App. 2001) (citing Mink in a footnote to support holding that a defendant waived his multiplicity objection to the indictment), holding modified by State v. Schaefer, 668 N.W.2d 760, 775 (Wis. Ct. App. 2003). That is not enough. To be sure,
And so does the third. Flint “substantially complied” with the Mink rule. Id. at 382. Even without a formal double jeopardy motion, Flint‘s counsel debated the merits of the first trial judge‘s mistrial declaration once that issue came up in the second trial. As Lee counsels, we must take account of the “realities of trial.” Id. Making Flint‘s counsel file a formal motion when the trial judge already raised the issue sua sponte would elevate form over substance and impose an impractical rigidity upon the inherent fluidity of trial. And because Lee instructs that we consider the “purpose” of the rule at issue, id. at 387, we also take Mink on its own terms. There, the Wisconsin Court of Appeals listed “[t]wo reasons offered by the [Wisconsin Supreme Court] for declining to address” claims like double jeopardy that were first made on appeal: “(1) the availability of a remedy in the trial court by amendment or dismissal of the charges; and (2) a record which fails to provide the appellate court with the informed consideration of the trial judge.” Mink, 429 N.W.2d at 102 (citing Maclin v. State, 284 N.W.2d 661, 665 (Wis. 1979)). To these interests, the state adds two more of its own—creating a better record and preserving judicial resources—furthered by application of the Mink rule to Flint‘s claim. Cf. Lee, 534 U.S. at 366.
In sum, Flint has not procedurally defaulted his double jeopardy claim. Application of Mink‘s forfeiture rule here is one of the exceedingly rare cases falling under Lee, allowing us to review Flint‘s habeas petition.
III
A
We turn now to AEDPA. A federal court cannot grant a state prisoner‘s habeas petition unless the state court‘s merits
According to Flint, AEDPA does not apply here. Its deferential standard of review arises only for claims “adjudicated on the merits in State court proceedings,”
Here, resolution of Flint‘s ineffective assistance of counsel claim turned on the intrinsic right or wrong of his double jeopardy claim, so AEDPA applies. For starters, Flint‘s double jeopardy claim formed a core part of his argument on appeal, even if it was ultimately reviewed within the Strickland framework. In that way, the Wisconsin Court of Appeals heard and evaluated his argument on double jeopardy within Strickland‘s first prong of prejudice—and it disagreed. That court was “satisfied that the trial court properly exercised its discretion” as to the first trial judge‘s mistrial declaration, explaining that a correct trial ruling cannot be prejudicial. Put another way, Flint‘s double jeopardy motion “likely would have failed,” and “[a]n attorney is not ineffective for failing to make meritless arguments.” Going beyond mere procedure, the Wisconsin Court of Appeals rendered a conclusion as to the merits of Flint‘s double jeopardy claim. We must accord its decision deference.
In the end, whether a federal constitutional claim received an adjudication on the merits within a state ineffective assistance of counsel claim turns on the state court‘s evaluation of the intrinsic right or wrong of that federal claim. The Wisconsin Court of Appeals here concluded that Flint failed Strickland‘s prejudice prong because his double jeopardy motion would have been meritless. That is an adjudication on the merits under AEDPA, triggering deference.
With AEDPA deference in mind, we consider the core of Flint‘s argument in this appeal: that the Wisconsin Court of Appeals unreasonably applied the Supreme Court‘s decision in Arizona v. Washington when adjudicating his double jeopardy claim. Cf. Bell v. Cone, 535 U.S. 685, 694 (2002) (explaining that a federal court “may grant relief under the ‘unreasonable application’ clause if the state court correctly identifies the governing legal principle from [Supreme Court] decisions but unreasonably applies it to the facts of the particular case“). The district court denied Flint‘s petition, and we review that denial de novo. Kidd v. Gomez, 2 F.4th 677, 679 (7th Cir. 2021).
Under AEDPA, however, Flint‘s burden is still a heavy one. “The question under AEDPA is not whether a federal court believes the state court‘s determination was incorrect but whether that determination was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Accordingly, “[w]e must deny the writ if we can posit arguments or theories that could have supported the state court‘s decision, and if fairminded jurists could disagree about whether those arguments or theories are inconsistent with Supreme Court holdings.” Kidd v. Lemke, 734 F.3d 696, 703 (7th Cir. 2013).
In Washington, the Supreme Court considered the double jeopardy protection after a mistrial based on an “improper and prejudicial comment” in a defense counsel‘s opening statement—the same circumstance as here. Id. at 498. The Court, after detailing the importance of the double jeopardy safeguard, nevertheless confirmed that “retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the
A “necessity,” though, “cannot be interpreted literally.” Washington, 434 U.S. at 506. Courts must “assume that there are degrees of necessity and [] require a ‘high degree’ before concluding that a mistrial is appropriate.” Id. (footnote omitted). In Washington, that high degree existed. Id. at 516. Even though the Court “recognize[d] that the extent of the possible bias cannot be measured,” and “that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions,” it nevertheless explained that “the overriding interest in the evenhanded administration of justice requires that [the Court] accord the highest degree of respect to the trial judge‘s evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment.” Id. at 511. This conclusion made sense given the “compelling institutional considerations militating in favor of appellate deference to the trial judge‘s evaluation,” which included: seeing and hearing jurors during voir dire, possessing familiarity with the evidence and larger
But that deference was not, and is not, entirely dispositive. Washington cautioned that the “constitutionally protected interest” of a defendant “is inevitably affected by any mistrial decision.” 434 U.S. at 514. Therefore, “to ensure that this interest is adequately protected, reviewing courts have an obligation to satisfy themselves that, in the words of Mr. Justice Story, the trial judge exercised ‘sound discretion’ in declaring a mistrial.” Id. “[I]f a trial judge acts irrationally or irresponsibly,” the Court said, then “his action cannot be condoned.” Id. In Washington, though, the trial judge soundly exercised his discretion, ensuring that “the mistrial order [was] supported by the ‘high degree’ of necessity which is required in a case of this kind.” Id. at 516. As a result, the Court deferred.
So too must we defer to the mistrial declaration in this case—especially under AEDPA. The question here “is not whether the trial judge should have declared a mistrial.” Lett, 559 U.S. at 772. “It is not even whether” its decision would be reversible under “the applicable standard on direct review.” Id. “The question under AEDPA is instead whether the determination” of the Wisconsin Court of Appeals “was ‘an unreasonable application of … clearly established Federal law.‘” Id. (quoting
Start with the deference owed to the mistrial declaration. In her opening statement, Flint‘s counsel mentioned that Flint spoke to police—“thinking that he‘s being cooperative“—and tells them that he and Cooper (the initial suspect) were “childhood friends.” That prompted the prosecutor to object and move for a mistrial. For the prosecutor, Flint‘s counsel introduced inadmissible hearsay because indications of cooperativeness with police would be helpful to Flint. The first trial judge agreed, largely accepting the prosecutor‘s rationale. Like the district court, we have some doubt about that conclusion. That first trial judge twice instructed the jurors that “opening statements are not evidence.” A curative instruction, though not expressly considered, could have mitigated the prejudicial effect of any hearsay. Cf. Washington, 434 U.S. at 511, 513. And to Flint, his counsel‘s reference to hearsay on a tangential matter was not prejudicial.
Yet as the Court did in Washington, we begin “from the premise that defense counsel‘s comment was improper and may have affected the impartiality of the jury.” Id. at 511. The Wisconsin Court of Appeals’ decision, as well as Flint‘s argument in that court, make clear that the impropriety of his counsel‘s statements was not in dispute under state law. Instead, what came under appellate scrutiny was the prejudicial effect of these statements. Although the first trial judge did not consider a curative instruction or even other remedial
Looking through AEDPA‘s lens—our second layer of deference—the Wisconsin Court of Appeals reasonably applied Washington in concluding that sound discretion was exercised in this case. Two different state trial judges determined that a mistrial was necessary, even if neither mentioned the manifest necessity standard by name. Cf. id. at 517 (“The state trial judge‘s mistrial declaration is not subject to collateral attack in a federal court simply because he failed to find ‘manifest necessity’ in those words or to articulate on the record all the factors which informed the deliberate exercise of his discretion.” (footnote omitted)). The first trial judge‘s mistrial rationale may have been brief, but the second trial judge more than made up for it, diligently walking the parties through its reasoning step by step. As in Washington, there is no indication that either trial judge “act[ed] irrationally or irresponsibly.” Id. at 514. What is more, both trial judges here, like the trial judge in Washington, “gave both defense counsel and the prosecutor full opportunity to explain their positions on the
IV
Washington exudes deference to trial judges, and AEDPA requires deference to state court judgments. Together, those principles resolve this appeal. We AFFIRM the district court‘s denial of Flint‘s habeas petition.