Donald Ray Wallace, Jr. v. Cecil Davis

whereby § parties U.S.C. can 2255/ record.”)

develop adequate (quoting Carr, (6th

United 5 F.3d States

Cir.1993)). Accordingly, the Court de-

clines entertain the merits of Valdez’s

claim of ineffective assistance of counsel.

Ill reasons, foregoing

For the Court

AFFIRMS Valdez’s conviction and sen-

tence. Ray WALLACE, Jr.,

Donald

Petitioner-Appellant, DAVIS, Respondent-Appellee.

Cecil

No. 02-4262.

United Appeals, States Court of

Seventh Circuit.

Argued Oct. 2003.

Decided March 2004.

915 Evanston, (1994) 783, 127 (argued), (describing M. Alan Freedman IL, Petitioner-Appellant. system rejecting for Indiana’s and constitu- challenges operation). tional to its The (argued), R. Stephen D. Thomas Perkins' found jury that Wallace had committed General, Creason, Attorney Office of murder with aggravating circumstances IN, Respondent-Appel- Indianapolis, for and recommended punishment. lee. judge imposed The sentence after FLAUM, Judge, and Before Chief agreeing jury with the aggrava- that two WILLIAMS, and (murder EASTERBROOK ting course of Judges. Circuit murders) felony, multiple another no factors had been established. EASTERBROOK, Judge. Circuit evaluating appropriate the course of family Donald Wallace killed entire penalty, judge many addi- mentioned blood. He broke into a house cold tional facts: that Wallace had committed occu burglary a and found the commit parole, the murders while on that he dis- up parents He tied pants home. life, played disregard a total of human each in the head to them prevent and shot provocation there was “no whatsoever” for him. Then both identifying from he shot acts, a long history his and that he “had This stop crying. them children judge serious criminal conduct.” The list- crime, a long the culmination of ed 14 for which Wallace had been offenses career, led to a death sentence. The Su arrested or convicted. affirmed, 486 Court of Indiana preme judge After the sentenced Wallace rejected 445 N.E.2d death, two of these were set aside for collateral relief. 553 N.E.2d bids ground taking when (1994). (1990); 640 N.E.2d 374 pleas, judge informed guilty had not for a оf habe- petition filed his federal writ being pro him of all in the rights waived Antiter corpus as before enactment of the completed sen cess. Wallace had Penalty Death Act of rorism Effective offenses, for was no tences those so there does apply. which therefore See con occasion to determine whether valid v. Murphy, Lindh The district been The 138 L.Ed.2d victions could have obtained. petition. 2002 U.S. argu court denied Wallace’s up principal vacatur sets Wallace’s (S.D.Ind. 2002). Nov. Dist. relying nоn- ment: on “invalid Lexis statutory aggravating factors” the sentenc punishment may imposed Capital be the due clause ing process violated Indiana if one or more “inval of the amendment. The fourteenth has factors exists. Whether such a factor component phrase reflects id” beyond a reasonable been established annulled, fact that convictions were see true as doubt is is—this Mississippi, v. Johnson law and matter of both state constitutional (1988),though command, Arizona, Ring see Wallace committed and could whether 584, 122 re been convicted of those crimes have (2002) cir- it finds once —but “non-statu open question. mains an makes a cumstances and recommendation phrase tory” component of reflects the punishment the ulti- appropriate not statuto fact that convictions are hands. See mate decision is Indiana. The ry aggravating Farley, 510 Schiro (if gist is that it is bad argument properly excluded evidence would bear on forbidden) always rely on multiple factors—then it improper for a factors, and, if extra-statutory this is to be federal to evaluate the error because all, placed done at reliance must be on true whether, it impossible to tell but for the rather than false considerations. error, the defendant would eligible. be But if the factors are independent, then that, responded The district court even one may error be isolated affecting without if aggra the convictions are assimilated to validity of the sentence. “Zant was vating conformity vitiated in ... predicаted on the fact that even after Johnson, there remain two uncontest elimination of the aggravator, ed aggravating factors: murder in the death sentence rested firm ground. burglary, multiple course of murders. Two unimpeachable aggravating factors support These the sentence and make it remained and there was no claim in- unnecessary judiciary for the state either admissible evidence was before the sentencing proceeding to hold a fresh or to sentencing its deliberations or that expressly consider whether reliance on the the defendant had precluded been vacated convictions was harmless. adducing relevant mitigating evidence.” The district court relied on Zant v. Ste Netherland, Tuggle 13, 516 U.S. phens, 462 U.S. 103 S.Ct. (1995). 133 L.Ed.2d 251 One and Wallace contends may say the same here. Two unimpeach- although this was a mistake: Zant able support the sen- improper holds that use of an tence, and neither factor was in affected harmless, may factor be Wallace insists any way by judge’s belief that Wallace only judiciary may evaluate had a particular committed number of ad- consequences, the error’s because ditional offenses earlier in his criminal ca- judiciary empowered weigh reer. Florida, evidence. See Sochor v. 504 U.S. 112 S.Ct. Wallace’s case is easier to resolve than v. Mississippi, Clemons either Zant or Tuggle, because his favorite 108 L.Ed.2d 725 phrase “invalid non-statutory aggravating however, supposes, This that the language that Court factor” — initially state court weighed itself an invаl has never used except when quoting from id against factor some proper decision, another court’s see Jones v. Unit- occurs, ‍​​​‌‌​​‌​​‌​​​​‌​​​​‌​​‌‌​‌‌‌​​‌​‌‌​‌‌‌​‌​‌​‌‌‌​‍mitigating factors. When re States, 373, 402-03, ed weighing job is a for the state. It is not 2090, 144 L.Ed.2d (1999) glosses over — what occurred here. The state Indiana, fact in prior criminality find mitigating factor be is not an aggravating factor in the first

weighed against factors; place. Indiana distinguishes ag- between there is no re-weighing to do. factors, at least one of which is why

This is the district essential to establish eligibility capital for deemed the matter punishment, one of harmless error and other considerations that and looked to Zant rather than may Sochor and influence the exercise of discretion Clemons. And if the right question is once eligibility has Only been established. harmless, whether any error was the an statutory aggravating factors matter to the swer yes. must be improper When an eligibility decision. Ring, After the dis- entangled factor is in some tinction between eligi- facts that determine way if, with the example, im- bility and those that influence the exercise others— constitutionally statutory [The based: references

of discretion is the trier findings decision must be are to former Code, under reasonable-doubt stan- of fact 1979 version of Indiana’s dard, latter decision be en- while the which was effect at the time of preponderance to a trusted murders.] standard, evi- and with relaxed rules of B. That the Defendant committed dence. murders, regardless three other Johnson, in cases such as problem not the whether or Defendant had Zant, an ac- arose because Tuggle been convicted the other mur- pun- was declared ders, cused three instances each grounds that have been (I.C.35 50—2—9(b)(8)). on ishment count. — erroneous, know and it became essential to

whether, ground sheared finds that 8. The Court the State has off, If eligible. would be the accused still proved beyond a reasonable doubt related, are it grounds eligibility several aggravating that two circumstances question hard to that and sensi- answer that warrant imposition exist insist the state deal with the ble to that penalty: the death case, In in the this matter first instance. Defendant, Ray A. That Donald contrast, played by crimes Wallace, Jr., murdered Patrick Gilli- decision, there eligibility no role so gan, Gilligan, Gilligan Theresa Lisa jury, The which puzzle is no to solve. Gregory Gilligan commit- and while factors, two never aggravating found Burglary the crime of ting history. learned January, 1980, in day 14th Van- judge, know And the who did about Wal- County, derburgh ‍​​​‌‌​​‌​​‌​​​​‌​​​​‌​​‌‌​‌‌‌​​‌​‌‌​‌‌‌​‌​‌​‌‌‌​‍State of Indiana. past, distinguished aggrava- lace’s between (I.C.35-50-2-9(b)(l)). factors ting and other considerations. Defendant, Ray B. That Donаld explanation The his sen- oral Wallace, Jr., murdered Patrick Gilli- tence finds that two gan, then Theresa and murdered (murder burglary, multiple and Gilligan Gregory Lisa and Gilligan, murders) beyond established have been Defendant, that the Don- Gilligan; doubt, mitigating and that no reasonable Wallace, murdered, Jr., Ray ald present. are The order, Patrick after the murder of The history. mention Wallace’s criminal Lisa Gilligan, Gilligan, Theresa Gil- explanation written sentence does Gilligan. ligan Gregory and history sepa- clearly mention criminal but (I.C.35-50-2-9(b)(8)). rates from the factors. The thirteen numbered find- circum- 10. That

ings. pertinent, repro- Five are we in paragraph set forth duce them: stances outweigh any mitigat- eight above The al- 2. circumstances under ing circumstances offered leged were: 35-50-2-9(c)(7). I.C. A. That the Defendant committed 11. has murder victim The Court considered of each intention- ally Jury’s the victims while com- recommendation killing penalty, and bases mitting attempting commit the death (I.C.35-50-2-9(b)(l)). given the same here Burglary. sentence error, required Jury, harmless or otherwise. Once as standard in a fault-free being that: state has determined man- eligible for given person ner that a beyond a has A. The State capital punishment good description of two of the reasonable doubt —a eligibility exist decision for Wallace—-the circumstances of Patrick Gilli- all with the murders court is free consider Collins, Gilligan Lisa gan, Gilligan, Theresa v. other circumstances. Graham 35- Gregory Gilligan within I.C. 2—9(b)(1),and 35-50-2- (1993); Oklahoma, I.C. Eddings 50— 9(b)(8) in paragraph forth as set 869, 71 L.Ed.2d 1 eight; Ohio, Lockett circumstances B. That Here exist within I.C. 35-50-2- judge lumped Wallace’s arrests 9(c)(7) out-weighed by ag- are convictions, distinguishing with his be- circumstances; (or juvenile tween the two between requirements 12. addition adjudications). gist was that adult 35-50-2-9, this further I.C. Court incorrigible. Moving given Wallace finds: event from the “conviction” column to the Wallace, Ray A. That Donald Jr. has adjudication” col- “arrest without definitive recently violated the conditions of way umn—the best to understand what [by killing Gilligan family parole happened guilty pleas when Wallace’s were parole prior on from a sen- while procedurally not deemed defective—does .... tence] ¶ 12(B) in point undermine the Wallace, Ray B. Donald Jr. had a That judge’s opinion. non-capital cases long history of serious criminal con- sentencing there is no need to redo the duct with 26 entries [list follows]. every that time conviction was challenged or taken into later is It is hard to see how the could have account States, been clearer. Two annulled. See Daniels United charged, were and both were found. Nei- 532 U.S. S.Ct. 149 L.Ed.2d States, problematic. thеr factor is There were no 590 Custis v. United “non-statutory 485, 487, Al- aggravating factors.” (There though history is not a exception is an of) (or statutory any “aggrava- other kind opportuni- convictions obtained without the factor,” ting this does not foreclose all counsel; ty to have the assistance of Wal- it, worth, mention of for what it be not that he coun- lace does contend lacked any more than the is forbidden to entering pleas sel when that later were vacated.) notice that committed the mur- Johnson, Sochor, Nothing in or parole ders while on or that Wallace was any of Court other decision an criminal. To armed career anathema- suggests things capi- that are otherwise stop considerations would not tize such prosecutions. eighth tal The amendment them; judges thinking it would requires special protections, and assurance just underground, drive them which would regularity, making when the decision no one. benefit capital pun- that the accused ishment; Indeed, applies none these decisions because list arrests every of a any aggrava- scrutiny unrelated to the same sentence convictions was factor, decision, ting court not commit even when the sub- state court’s insanity defense or demon- support If eligibility. than' something other ject is trial. incompetence to stand strate extended are to be and Sochor Johnson aggra- of those the ascertainment beyond argument supposes, counsel’s Current eligibility, that establish vating however, sym- to offer possible that it was Supreme Court by the done must bе evidence consistent with pathy-creating Lane, Teague given appeal; direct attorney’s ethical the facts and both found, how- the district duties. As cannot court appellate, a federal ever, lawyers true. The who neither was in a fashion sentencing on doctrine testified elaborate at represented Wallace they proceedings attack. post-trial collateral in state many witnesses who investigated potential at what seems be arrive Thus we back- testified abоut Wallace’s might have cases: argument the inevitable not find state and could ground and mental ineffective. counsel was uncle, who would do any, other than lawyer did that Wallace’s charge is friends good than harm. Wallace’s more one mitigating evidence: on much put believed, relations, would not counsel per They did two clerics. uncle and thought “that the wit- helpful. Counsel be judge, who jury or either the suade past, testify could to Wallace’s nesses who whatsoever that “no evidence wrote not be able to family would character the existence to show losing cross-examination without withstand could be which circumstances fur- Trial counsel ground for the defense. (1 35-50-2-9(c) under I.C. considered cooper- was not ther testified that Wallace argu 6); religio-ethical excellent through this information gathering ative discussions philosophical ments family certain members and did not want history and Hebrew and Christian both only family trial. -The testify to at his and considered heard were philosophy at testify asked to whom cоunsel member 35-50-2-9(e)(7)”. Subsection within I.C. un- hearing was Wallace’s the’ (c)(7) allowed the in 1979 as it stood cle, T think he comes across as because cir any mitigating judge to consider any not and would have objective (Today otherwise listed. not cumstance (2002 Dist. U.S. absurd statements 50—2—9(c)(8).)The in this is found I.C. *95). drawback, 35— at One Lexis 22353 ¶ work; (already strategy bragged had example, ag found that the reproduced) prob- faking psychological prison about the consider outweighed during a came out This evidence lems. (c)(7). Rely by subsection аtions allowed whether Wallace inquire held to hearing Smith, ing Wiggins trial. The state to stand competent 156 L.Ed.2d had been that Wallace concluded (7th Any effort to Washington, competent. faking Hall and was 106.F.3d lawyers con Cir.1997), current evidence at sentenc- mental-health present Wallace’s- theolo into the record stopping with allowed this that, ing instead of have tend would undermining offered details Wallace’s personal response, a few gy and would uncle, have lines of evidence counsel should Other сhances. through through extensive sympathy brought Wallace’s to create some have tried attention. “When up jury’s record to unhappy Wallace’s evidence about to the ex- issues focuses on some including pos counsel bringing and childhood— others, strong pre- there is from some clusion suffered sibility that Wallace reasons for tactical that he did so illness, sumption enough though form of mental (let through neglect.” sheer Yar rather than differs from entitlement alone an — -, --, Gentry, borough v. obligation) to override a client’s instruc- 1, 5, Cur Many during tions. decisions trial fall to try rent counsel now to overcome that by by counsel default or virtue of superior presumption by contending yet other knowledge, major but the ones—such as potential witnesses could have been con testify present whether to a defense— evaluated, tacted and but evidence this may personally, be exercised if the accused hearing effect was not at the delegate wants to make rather than these post-conviction proceed held in the state vital choices. ings, persuasive and there no reason why evidentiary it was One withheld. good lawyer A persuade tries to norm; hearing is the the state did not accused to make a wise decision about ability hamper develop (or silent) testifying keeping trial, position factual in the collateral litigation. defense, presenting though even additional absence evi- client, the ultimate decision rests with the dence—not at sentencing but also and wretched advice that leаds the accused post-conviction proceedings— to make a bad decision is a form of ineffec- must be laid at doorstep, and tive assistance. The accused is entitled to prob- here is the source of counsel’s ethical the information essential to make an edu- During post-conviction lem. pro- cated choice. holding Doug- This is the ceedings, paucity Wallace testified that the (9th Woodford, las v. 316 F.3d 1079 Cir. preference. evidence was his own He 2003), which that an concluded accused’s told the state that counsel “did in opposition vocal to presenting a defense try fact approach develop me and by cannot itself vindicate counsel’s inade- they these prepared sources are quate efforts to find whether there was a present ‍​​​‌‌​​‌​​‌​​​​‌​​​​‌​​‌‌​‌‌‌​​‌​‌‌​‌‌‌​‌​‌​‌‌‌​‍and at that uh—-which time I for- defense Douglas to be made. the law- bid him to do that. repeatedly He asked yer skimped on investigation, so the client repeatedly me to do I forbidden it. lacked information needеd to make deci- Finally my he acceded to wishes.” Wal- Here, contrast, sions. counsel testified lace had been examined found to be they investigate that up only and came trial, competent to stand which means that with (plus the uncle the rabbi and minister allowed, insisted, he also was if he to make who jury grounds offered moral major decisions about his defense. See life) spare to as a Moran, believable 389, Godinez v. provide witness who would If net benefits for counsel had against evidence the сlient’s the defense. Wallace thus could and did instructions, then there would have been a decision; make an informed and if the solid argument. By ineffective-assistance decision proceed to forbid counsel to wishes, respecting Wallace’s counsel not unwise, he must accept consequences. the (law- by requirements abided ethical Certainly opinion no Court all) yers agents, are after but also fur- obliged establishes that counsel is to over- quality nished the of assistance that the instructions; ride the client’s again, once Constitution demands. As Faretta v. Cali- given Teague, any such novel rule must be fornia, 45 established on direct appeal rather than (1975), holds, L.Ed.2d 562 the accused’s collateral review. prevails will because the constitutional right assistance; legal is to “assistance” AFFIRMED anal- meaningful in a harmless error

WILLIAMS, concurring. gage Judge, Circuit resentencing.” ysis, or remand deci the ultimate Though agree I with Anderson, 272 F.3d Hough case, the disagree I must in this sion (7th Cir.2001). step any po- This allows logic the majority’s statement by the tеntial error to be cured state 578, 108 Mississippi 486 U.S. Johnson However, we also reasoned that court. (1988) and L.Ed.2d 575 present the defendant must first sufficient Florida, 527, 112 S.Ct. Sochor v. aggravating that the invalid fac- evidence (1992) to are limited by the Id. tor was considered sentencer. factors that establish “those sentencing mem- The trial written Majority opinion eligibility....” [death] orandum articulates his bifurcated consid- added).1 (emphasis at 918 nonstatutory eration of the and subse- majority’s conclusion be- I stand factors.2 quently prove failed to сause Wallace Thus, Wallace has satisfied his bur- sentencer, actually judge, the trial here (reasoning appellate that an den. See id. nonstatutory aggra- the invalid considered reweigh aggravating court need not death. vators in his decision mitigating factors when the defendant has has held that “Sochor This court prove actually that the sentencer failed proposition Clemons stand [... ] factors). the invalid considered factor an ‘invalid’ when majori- separately I write to discuss ‘weighing’ is considerеd state, ty’s applicability decision to limit the appellate court must either eligibility Johnson and Sochor to death aggravating circumstances reweigh the circumstances, propriety of Wallace’s en- determination. against Indiana, states, interpretation penalty conduct a the death based Weighing such as 1. suggested Scripture. has determining This court two-part analysis whether when strategies "equiva- mitigation which seek the phase, apply penalty. In the first the death jury on the basis of reli- lent of nullification” jury asked to determine whether is See Hall v. gious beliefs are unreasonable. eligible.” inquiry "death This defendant (7th 1997) Washington, Cir. 106 F.3d statutory jury has found asks whether ("Claims particular or a reli- that the Bible beyond exist a reason- factors to penalty bear- gion opposes the death 'have no phase, In the second able doubt. particular ing question of whether a against weigh mitigating all asked to guilty capi- found defendant who has been whether to factors and decide receive death or somе less- tal murder should imposition death. The tri- recommend ”) (quoting penalty.' Stokes v. er authorized however, accept judge, decides whether al Armontrout, (8th Cir. 851 F.2d reject jury's for death. recommendation 1988)). mitigating evidence also rais- 2. The dearth of However, that Wallace's the record reveals concerning propriety questions the es several background. attorney investigate See his sentencing attorney's trial strate- 510, Smith, of S.Ct. Wiggins 539 U.S. 123 v. Kline, rabbi, Joseph a gy. (2003) ("[W]e called 2527, 2536, Counsel 471 pastor, Bishop, a Lutheran to the Lowell G. investigation supporting on whether focus theologi- mitigating testified as to their stand. Both men not to introduce counsel's decision understanding propriety background of the of the was defendant's] cal [the evidence of reasonable.’’) original). penalty. (emphasis Kline discussed the death Rabbi itself The record is penalty replete examples of disapproval death also with Jewish faith's of the attorney's mitigation meaning eye impeding of "an his and stated that the real deci- investigatiоn, which makes counsel's eye” a should be mone- an was that victim for light more reasonable tarily compensated a murder. Pastor sions seem disapproval of circumstances. Bishop personal discussed 922 here, reweigh not at issue nor asked to all evidence eligibility

death evidence, eligibility against at issue Johnson3 or the inval- was Sochor.4, Rather, may a potential aggravator profound constitu- id also have fact that infirmity tional arises effect sentencer’s ultimate decision coupled “weighing” Indiana is a state whether sentence the defendant to during prison the second life in or sentence him to death.5 possibility Black, 222, 230, phase sentencing, Stringer the trial See v. 503 U.S. (1992) 1130, 112 judge may aggrava- have considered two S.Ct. 117 L.Ed.2d 367 (noting Eighth that the ting factors later deemed invalid. Amendment does permit appellate not a “state court in a satisfy Eighth of the To the edicts weighing a State affirm death sentence Amendment, imposition of the ultimate thorough analysis without a of the role punishment Reliability must be “reliablе.” ‍​​​‌‌​​‌​​‌​​​​‌​​​​‌​​‌‌​‌‌‌​​‌​‌‌​‌‌‌​‌​‌​‌‌‌​‍played invalid factor (1) gauged by: degree to which the sentencing process”). analy- The Court’s properly narrows the class defen sis must extend to the entire sentencing penalty, dants the death see process. Tuggle See v. 516 Netherlands 153, 189, Gregg Georgia, v. U.S. 10, 11, 283, S.Ct. 133 L.Ed.2d 251 (2) 2909, (1976); 49 L.Ed.2d 859 (1995) (noting that in weighing states a proportionality imposed of the sentence death may summarily sentence not be af- committed, the crime see Furman v. Geor aggrava- firmed on the basis of one valid 238, 257, gia, 408 U.S. ting factor once another aggravating fаctor (3) L.Ed.2d the extent to invalid). Limiting is deemed Johnson and which the defendant received an individu contrary Sochor is therefore to the Court’s determination, sentencing alized see Ed reasoning. Oklahoma, 104, 110-12, dings 869, 71 102 S.Ct. L.Ed.2d An factor affect the determination; however,

eligibility in a state,

weighing because the sentencer is conclusion, 738, 752, 3. "At the Mississippi, hear- Clemons v. (1990)). ing, jury found three circum- 108 L.Ed.2d 725 stances, which, Therefore, again, one of eligibility as matter of once death law, Mississippi would have been sufficient to not at issue. support sentencе.” 486 U.S. 580- 108 S.Ct. 1981. The in Johnson was Supreme 5. The Indiana Court has subse weigh "mitigating asked to circumstances and quently disallowed the consideration of non- against circumstances 'one statutory aggravating the sec ” other,' ultimately ag- determination, "found 'that the phase though ond death outweigh circumstances do the mit- required by the federal constitution. See igating circumstances Defendant Stephens, Zant v. " penalty should suffer the of death.' Id. at (1983). However, as Thus, 108 S.Ct. 1981. the issue there appeal began Wallace's before and the propriety was the of the final decision to Indiana Court has decided not ‍​​​‌‌​​‌​​‌​​​​‌​​​​‌​​‌‌​‌‌‌​​‌​‌‌​‌‌‌​‌​‌​‌‌‌​‍to death, "eligibility.” not death apply ruling retroactively, this new does it apply to his case. See Bivins State of stated, Indiana, (Ind.1995) weighing 4. The Sochor Court "[i]n N.E.2d 953-56 Florida, ("court Eighth State like there is Amendment must limit cir henceforth weighs error when the sentencer an 'invalid' cumstances for consideration to those statute, reaching specified penalty circumstance in the ulti- in the death Indiana 35-50-2-9(b)”) (emphasis mate decision to a death sentence.” Code add Section ed). (quoting 504 U.S. at 112 S.Ct. 2114

Case Details

Case Name: Donald Ray Wallace, Jr. v. Cecil Davis

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 26, 2004

Citation: 362 F.3d 914

Docket Number: 02-4262

Court Abbreviation: 7th Cir.