857 F.3d 745

7th Cir.

2017

Chijioke B. BEN-YISRAYL, Petitioner-Appellant, v. Ron NEAL, Respondent-Appellee.

No. 16-1013

United States Court of Appeals, Seventh Circuit

Decided May 22, 2017

Argued April 21, 2017

745 F.3d 745

At oral argument Wheeler‘s lawyer allowed that Davila is on point but asked us to reconsider that decision in light of the Supreme Court‘s grant of review in Class v. United States, — U.S. —, 137 S.Ct. 1065, 197 L.Ed.2d 175 (2017). The question presented in Class is whether an unconditional guilty plea waives a defendant‘s right to contest the constitutionality of the statute of conviction. We do not see any need to wait for the Court‘s decision in Class or to revisit the holding of Davila. Wheeler‘s statute of conviction is § 924(c)(1), which penalizes using a firearm during or in relation to a crime of violence. Wheeler does not contend that § 924(c)(1) is invalid. Class maintains that he had a constitutional right not to be indicted; Wheeler does not make any argument of that kind. Wheeler attacks one component of the definition of “crime of violence” in § 924(c)(3) but does not contend that it is constitutionally impermissible for an indictment to charge that attempted Hobbs Act robbery is a crime of violence under the elements clause. In other words, Wheeler does not assert a constitutional immunity from prosecution. Whether attempted Hobbs Act robbery satisfies the elements clause in § 924(c) is a statutory issue. For the reasons given in Davila, an unconditional guilty plea waives any contention that an indictment fails to state an offense.

Wheeler presents a second contention: that he should be resentenced in light of Dean v. United States, — U.S. —, 137 S.Ct. 1170, 197 L.Ed.2d 490 (2017). The Supreme Court held that 18 U.S.C. § 924(c)(1)(D)(ii), which requires a sentence under § 924(c) to run consecutively to the sentence for the offense in which the firearm was used, does not implicitly forbid the district court to choose a term of imprisonment for the predicate offense so that the aggregate imprisonment comports with the sentencing criteria in 18 U.S.C. § 3553(a). Wheeler correctly observes that Dean supersedes United States v. Roberson, 474 F.3d 432 (7th Cir. 2007), which had held that a district court must not reduce the sentence for the predicate crime in order to offset the consecutive § 924(c) sentence.

If there were some reason to think that the district court had felt compelled by Roberson to set Wheeler‘s total sentence at 228 months rather than a shorter term, Wheeler would be entitled to a fresh sentencing. But the record does not so much as hint that the district judge felt constrained by Roberson. The judge did not mention Roberson or say that she would have preferred to give Wheeler a total sentence below 228 months. Instead the judge sentenced Wheeler to 108 months for the Hobbs Act crime, a sentence above the Guidelines range of 84 to 105 months for that offense. It is inconceivable that a judge who imposed a sentence above the Guidelines range for the predicate crime did so because of Roberson. Dean accordingly does not affect Wheeler‘s sentence.

AFFIRMED

Michael Ausbrook, Attorney, Bloomington, IN, for Petitioner-Appellant.

Andrew A. Kobe, James Blaine Martin, Attorneys, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before WOOD, Chief Judge, SYKES, Circuit Judge, and COLEMAN, District Judge.^*

SYKES, Circuit Judge.

Chijioke Ben-Yisrayl is an Indiana prisoner serving a 60-year sentence for murder. He appeals from the district court‘s denial of his petition for habeas relief under 28 U.S.C. § 2254. Although he raised multiple claims in his petition, his sole argument on appeal is that his resentencing counsel was constitutionally ineffective for failing to introduce “a veritable mountain of mitigation evidence.” But he never raised this claim in his habeas petition, and his failure to do so is a waiver. We affirm the judgment.

I. Background

Ben-Yisrayl is well acquainted with the judicial system. In 1984 he was convicted in Indiana state court of capital murder, rape, criminal confinement, and burglary.¹ The jury was unable to reach a decision in the penalty phase of trial, so the judge imposed a sentence of death. In case that sentence did not hold up on appeal, the judge imposed an alternative sentence of 60 years. On the remaining counts, the judge imposed an aggregate term of 90 years.

The case bounced back and forth for many years in the state trial and appellate courts as the death sentence and other issues were litigated on direct review and in post-conviction proceedings. Prosecutors eventually withdrew their request for the death penalty and settled for the alternative 60-year sentence on the murder conviction. Ben-Yisrayl won a reversal of that sentence as well. On resentencing the trial judge reimposed the 60-year sentence, and this time it was affirmed. Post-conviction proceedings on other issues continued.

In the meantime, Ben-Yisrayl pursued habeas relief in federal court under § 2254. Because he had yet to complete state post-conviction review, the district judge stayed the proceedings. When the state courts finally finished with the case, the judge lifted the stay and ordered the state to respond to the petition. Indiana did so. Ben-Yisrayl failed to file his reply within the allotted time, so the case proceeded to decision without a reply brief from him.

The judge denied relief on all grounds without an evidentiary hearing. She also denied Ben-Yisrayl‘s motion to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure. This appeal followed.

II. Analysis

Although Ben-Yisrayl originally sought habeas relief on six grounds, he later abandoned four of his claims and litigated only two on the merits before the district court. He argued that (1) the prosecution team intentionally destroyed exculpatory evidence; and (2) his counsel at resentencing was constitutionally ineffective for submitting a meager two-page sentencing memorandum and for failing to challenge the prosecution‘s destruction of evidence. Notably, Ben-Yisrayl never mentioned the sole claim he now advances on appeal, which is an attack on his counsel‘s alleged failure to introduce a “mountain” of mitigation evidence at resentencing. Indeed, a reference to mitigation evidence first pops up in Ben-Yisrayl‘s Rule 59(e) motion, and even then it appears only in passing in a sentence about the district court‘s denial of an evidentiary hearing: “Without an evidentiary hearing, [Ben-Yisrayl] cannot show what mitigation evidence his trial lawyers failed to present or why they failed to present it.”

Ben-Yisrayl‘s omission of this claim from his habeas petition is a waiver. It is well settled that waiver rules apply in the habeas context: “Claims not made in the district court in a habeas petition are deemed waived and cannot be raised for the first time on appeal.” Johnson v. Hulett, 574 F.3d 428, 432 (7th Cir. 2009). The fleeting reference to this claim in Ben-Yisrayl‘s Rule 59(e) motion cannot save it for appellate review; it is equally well settled that a Rule 59(e) motion is not an appropriate vehicle for advancing “arguments or theories that could and should have been made before the district court rendered a judgment.” County of McHenry v. Ins. Co. of the W., 438 F.3d 813, 819 (7th Cir. 2006) (quoting LB Credit Corp. v. Resolution Tr. Corp., 49 F.3d 1263, 1267 (7th Cir. 1995)).

Indiana also invokes procedural default, but we have no need to address that argument. Waiver resolves this entire appeal. Because Ben-Yisrayl‘s habeas petition never raised a claim based on his counsel‘s failure to introduce mitigation evidence at resentencing, the claim is waived. The judgment of the district court is AFFIRMED.

Notes

At that time Ben-Yisrayl was known as Greagree Davis.

The Honorable Sharon Johnson Coleman of the Northern District of Illinois, sitting by designation.