Edwardo Rivera v. Sheriff of Cook County
162 F.3d 486
7th Cir.
1998
Check Treatment

*1 strikе, corpus affirm the decision would habeas explanation race-neutral racially-motivated. court. As the strike was be that reveal, record would as the voir far dire be the char- juror’s race would

stricken distinguishing the African-Ameri-

acteristic juror who retained.

can from regard significant

It is that the hearing Batson

Hett found at the Mahaffey’s jury were simi-

whites who sat on lar to the African-Americans State had RIVERA, Petitioner-Appellee, Edwardо finding suggests Id. That excused. at 51. peremptory its may have used that the State v. challenges single out African-American exclusion, in venirepersons comparison to COUNTY, COOK SHERIFF OF or similar characteris- whites with the same Respondent-Appellant. And inference of discrimination tics. No. 98-1703. circumstance is unaf- that would arise in that with, by the fact that some whites fected Appeals, States Court of ex- same also have been characteristics Circuit. Seventh all African- cused—the State still struck retaining Americans while some Argued Sept. 1998. whites, despite having strikes available Dec. Decided went unused. short, by Mahaffey shоwing In made hearing

the Batson was sufficient as a matter require

of law to the State come forward explanations each of the

with race-neutral

challenged Because court never ‍‌‌​‌​​‌​‌​​‌​​‌‌​‌‌​​​​​‌‌​‌​‌‌‌‌​‌​‌​​‌​‌‌‌‌‌‌‌‍strikes. so, Mahaffey has

required the to do proper violation.

established Batson violation

remedy for Batson is the one this Gilmore, forth in 155 F.3d

set Coulter (7th Cir.1998). We therefore Reverse judgment of the district and order unless, granted

that the writ be within

days, holds a hear- the state trial court claim in

ing Mahaffey’s Batson accor- opinion. prior opinion in

dance with this Our (7th

Mahaffey Page, 151 F.3d 671 Cir.

1998), is vacated to the extent

inconsistent with this decision.

FLAUM, Judge, dissenting. analysis my

Based advanced

prior opinion Mahaffey Page, this (7th Cir.1998), F.3d I re-

spectfully I remain of the view that ‍‌‌​‌​​‌​‌​​‌​​‌‌​‌‌​​​​​‌‌​‌​‌‌‌‌​‌​‌​​‌​‌‌‌‌‌‌‌‍dissent. commands of Batson v.

the constitutional

Kentucky, have been met deny writ Accordingly,

matter. would *2 trial, contending

hold a eyewit- new that the ness identification Rivera as the killer was uncorroborated and have been influ- enced suggestive photographic a identifi- hearing argument, cation. After (of the Circuit Court of Cook County) stated: being single This witness identification case in single essence the [that] witness must convince the trier of fact beyond a reasonable doubt of that identifi- cation. going Next over the transcripts listening arguments the Court is of the Court could have made a in this mistake case. And this being a I am going murder case my take thе leading chance of mistake man to wrongfully convicted. I am going grant his motion for me to recon- sider. guilt, will vacate the plea guilty. reinstate And I am going to he be order that back here to stand trial before another in this [16, February courtroom on 1995].... [W]e will some send it to for retry trial. I will not this ease. since, debating Ever parties have been sought whether the Rivera second trial obtained jeopardy would violate clause of the Constitution. (favor opposition to

Rivera’s able) peculiar outcome of motion is a his own delay, reason long approach for such a now ing yeаrs, four it has because been settled for long jeopardy time that the double clause does not forbid a second trial when the de IL, F. (argued), Chicago, Frederick Cohn persuades fendant court to overturn the Petitioner-Appellee. outcome of the first. The double Devine, A. Richard Office the State’s gives right keep clause the defendant Attorney County, of Cook Alan J. Spellberg disposition, favorable but does not bind (argued), Attorney Office of the State’s of him to an turn of if unfavorable events County, Appeals Division, Cook Criminal prefers to anew. take his chances Thus IL, Chicago, Respondent-Appellant. mistrial, the defendant asks there is no problem constitutional with another trial. CUDAHY, EASTERBROOK, Before Dinitz, United States v. U.S. RIPPLE, Judges. Circuit If conviction, appeals defendant reversal EASTERBROOK, Judge. be followed a new trial. United States v. trial, Ball, At the conclusion of a bench

judge convicted Edwardo Rivera of murder. L.Ed. 300 Burks lаter, 1, 13-16, Two months date set for sen- tencing, lawyer point, being Rivera’s asked the Closer to the after ordering guilt, vacating the conviction and seeks a retrial guilty the defendant found trial, peti- judge acquitted the trial under Fed.R.Crim.P. interest tioner. practice— in state counterparts or its (citations at the bor- perhaps because Dist. Lexis 2250 at *15 *3 sufficiency jeop- omitted). legal of clause derline Under the double —the from prevent not court ardy clause does an in a bench trial is conclusive. States, 676, request. Tibbs Finch 97 S.Ct. fulfilling accused’s 433 U.S. 2211, 2909, Florida, 31, 102 S.Ct. 72 1048 Yet the cor 457 53 L.Ed.2d Louisiana, judge’s approach— Hudson v. nerstone of 652 L.Ed.2d thought Judge Strayhorn 40, 970, he that 67 30 reason 101 S.Ct. belief that must have Rivera —is a impossible to hold a new ‍‌‌​‌​​‌​‌​​‌​​‌‌​‌‌​​​​​‌‌​‌​‌‌‌‌​‌​‌​​‌​‌‌‌‌‌‌‌‍If it were judge granting prohibits Illinois from was close to the line when the evidence trial following of retrial in the interest then more defen- questionable, otherwise or trial; judge convict or bench must either on еvi- convicted weak dants would stand acquit. This contradicts the conclusion dence; thinly supported courts enforce would very appellate court in this state’s reached acquittal. if the verdicts alternative were recognizing authority as well as other 22, n. 102 457 U.S. at 45 judges options that in Illinois have threе for a new trial rather Rivera asked conviction, acquittal, following trial: a bench judge’s statement than (because in legal or a of errors new trial in this “the Court could have made mistake trial, justice). first in the interest of added) (emphasis sounds like a conclu case” 469, People Castiglione, Ill.App.3d justifies a uncertainty new trial sion (1st Dist.1979); 405, N.E.2d Ill.Dec. parts justice. Other of the the interest of Jones, 615(b); Sup.Ct. People cf. Ill. R. exposition like brief sound more conclusion 777, 131, Ill.App.3d N.E.2d Ill.Dec. persuade him just that the evidence did Dist.1997). (1st judges Federal fact, trier of which would amount to as corpus based on issue writs habeas rеading Judge is best? acquittal. Which interpretations depart from of state law that (who preside to at McSweeney-Moore was hold. views the state courts themselves Rivera’s motion the second trial and denied McGuire, 67-68, Estelle v. dismiss), appeals court to the state’s 475, 116 (which interlocutory appеal), on an affirmed legally in the case sufficient Evidence was way Strayhorn the former understood to and killed convict Rivera. Someone shot Judge McSweeney rather than latter. Jacque- Weydowing LaPorte and to kill tried Strayhorn, who Moore remarked that passen- line Aponte, Vicario and Samuel how served knows to enter an has since spray of gers in car. Vicario survived the his acquittal and not have set the case would Rivera, member of a bullets and identified eyewit a new trial he disbelieved the had eyewitness gang, rival as the assassin. One in an appeals ness. The concurred court of trier of enough, fact believes Rivera, People v. No. 1- unpublished order. (at witness, Strayhorn least as 1996). Dist. Dec. (Ill.App. 1st evidence). immediately after the of the close But the federal court issued a writ Burks, appellate holds that an court’s which § corpus rea habeas under 28 U.S.C. pre- that the evidence insufficient soning: retrial, cludes not assist therefore does legal (Because The trial in this case had a appellate court Rivera. state’s obligation deny new trial motion it suffi- examined the evidence and found (which sufficiency cient, was of the based on holding of Richardson v. United evidence) the conviction if he and sustain (1984), beyond a reasonable doubt convinced that Burks is limited petitioner’s presume guilt. We the evidence cases in which the did find making independently precludes it in reliance applied

knew insufficient Burks.) inference, compelling ruling. there- on So unless there is The irresistible that, fore, despite the support the conclusion by reconsidering finding is that decisions, Judge contrary Stray- may disregard litigants’ positions that we state courts’ issues, actually acquitted necessary horn Rivera —which is to about it is choice-of-law say, today. follow resolved his favor least one сourse Even 2254(d) offense, standard, supplies § factual elements of the see the state Co., prevail. Supply Martin 430 U.S. must As States v. Linen amended aedpa, 564, 571, 97 this statute reads: retry state entitled to him. An application corpus —the a writ habeas person custody on pursuant behalf of might suppose Onе that whether judgment of a State court shall question made such a is a be granted respect any with claim fact, negative which state courts’ adjudicated the merits *4 presumed answer be correct. 28 is to U.S.C. proceedings adjudication court the unless 2254(e)(1). (Because § petition Rivera’s of the claim— 1996, 24, April § filed after we cite 2254 as (1) in resulted con- by amended the Antiterrorism and Effective to, trary or an involved unreasonable Penalty Murphy, Death Act. See Lindh v. of, application clearly established Feder- 320, 117 2059, 138 521 L.Ed.2d 481 U.S. S.Ct. law, by al Supreme as determined the (1997).) Interpretation ambiguous of an States; Court of thе United or any present statement does not in a question question of resulted decision that was based constitutional law. The on an speaker sought convey, unreasonable determination of the is what the not do; light presented facts in of compels of it the evidence what a rule law the state proceeding. in the court question is a of the State fact for same reason that of “the state a man’s mind is as much a fact The state courts’ conclusion that digestion.” Edgington as the state of his v. Strayhorn not acquit did Rivera cannot be Fitzmaurice, 459, Div. 29 Ch. 483 called “an unreasonable determinatiоn of the (7th Hanks, 1187, v. See Banks 41 F.3d 1189 light presented in the facts of in the Cir.1994). 19, Massey, In Greene v. 437 U.S. proceeding.” plausible court It is a 2151, (1978), 98 57 L.Ed.2d 15 a com S.Ct. of an descrambling ambiguous oral remark. Burks, panion to the state court issued an Likewise the state courts’ conclusion cannot opinion ambiguous that could have bеen read to, “contrary ... an be called or unreason- say legally that the evidence was insuffi of, application clearly able established Feder- cient, but also could have been read law, Supreme al as determined the Court ways. Supreme The Court held the the No rule of federаl law of United States”. state courts should themselves determine interpret ambiguous tells state courts how to right way pronounce their understand statements; say, judicial and as Greene Tibbs 24, ments. also 457 at 47 n. See subject governed by is not federal law 2211, another ease in which the Necessarily, therefore, аll. the state courts acquit defendant insisted that state court (nonexistent) apply federal law did ambig “the meaning ted him: attached to an unreasonably. prior uous reversal is a matter of law.” state picture rule federal law the Strayhorn’s meaning Whether acquittal following the norm an is oral question statement is of fact or state attachment bars second trial. law, upshot is the same: a federal court 54, States, 437 98 Sanabria independent not reach an conclusion on 2170, Foo Fong S.Ct. subject, respect but must the state 141, 671, 7 S.Ct. courts’ resolution. (It preclude does not Nonetheless, lawyers with reрresenting possibility replacing Illi conviction, rely nois in this case on if that can done without have declined to be 2254(e)(1) ‍‌‌​‌​​‌​‌​​‌​​‌‌​‌‌​​​​​‌‌​‌​‌‌‌‌​‌​‌​​‌​‌‌‌‌‌‌‌‍Wilson, § state trial. United and do contend that second States 332, dispositive. Although law v. Kem is Kamen L.Ed.2d (1975).) Inc., Services, per Strayhorn whether re- Financial But (1991), shows solved Rivera’s favor one more of evidence,... offense, weight of thereby- against elements factual where, present apply in the him, subject simply [as constitu- do not which case], judicial entity which set aside the one of the speak. This is tional does judicial entity that must the same guilty that a court verdict is many subsidiary issues Appel- law tо applying guilty.” the initial in the course made decide omitted). (internal quotations under and which Br. at given of a lee’s 8-9 facts 2254(d)(1) overturned in collateral § also attributes to the The defendant has acted only if the state court between litigation the view that “distinction Murphy, 96 unreasonably. insufficiency Lindh v. and those reversals based Cir.1996) (en (7th banc), meaningless F.3d 868-71 in situations weight based grounds, 521 U.S. on other reversed ... trier of fact was the same where See also setting or court aside entity person as the (11th F.3d Neelley Nagle, Id. at 9. conviction.” And Cir.1998). say step one analysis to take this court seems any resolving acquitting Rivera or he was says, say “To when in its farther favor, Illinois factual issue in [Judge Strayhorn] granted a new trial concluding unreasonably did not act courts weighed the evidence personally because the order was not is, therefore, the same was unconvinced *5 saying Ap- the as defendant.” Reversed. (Dis. Op. Br., App. A Ct. Mеm. at pellant’s CUDAHY, Judge, concurring. 10). reality that the of what if, appears, It seems to me me that But it seems to as Strayhorn said be Judge and Strayhorn’s prior his decision was that directly along than the a bit more reached the evi- against weight the decision majority. by the path followed dence, then on the defendant’s his decision prior nullify and his motion was to vacate speaks opinion of a “retrial in majority The effect, and, make to decline to decision ... perhaps because the interest of may, on prior decision. That decision legal line of at the border the evidence is aрpeared have to have been thought, second par- sufficiency.” at 487. In common Ante weight the does not against evidence lance, to be a reference what take this unsupported by that substantial mean it was a verdict is follows determination perspective, this evidence. From thе weight the evidence. See against Strayhorn granted a new trial because he 31, 42, Florida, 102 S.Ct. Tibbs v. vacated the had withdrawn and (1982). briefs of In the previously stance he had made. His de- in the district court’s parties the analogous to that clining decide was of the difference is much discussion there jury. hung against weight that is bеtween verdict supported one that is of the evidence jury fails to reach verdict Retrial after A by verdict is sufficient evidence. considerations of double barred weight against See, e.g., jeopardy. Richardson violating without bar followed a retrial States, 317, 323-25, 104 S.Ct. See, jeopardy. e.g., id. On against dоuble (1984). Similarly, the failure hand, sup- is not a verdict that judge of a at a trial enter or refusal bench operates by legally sufficient evidence ported jeopar- presumably has no a decision double principles as Hunter, dy effect. Wade Cf. preclude trial. Burks v. See 688-89, 93 L.Ed. 974 98 S.Ct. would follow when after And thе same result judge al- trial a vacates a decision a bench if ready certainly This is the case made. However, argues that here the defendant on the sought a trial based defendant reversals based “the distinction between setting the decision reached aside of insufficiency legal of thе evidence and Pearce, 395 one. North Carolina v. first reviewing disagrees with those where a 711, 720, 2072, conflicting trier of fact’s resolution of the case equally it would be verdict Whether guilty evidence and concludes sponte court sua its own deci- vacated authorized) (assuming were sion Judge Strayhorn nоt be decided here. need all,

was, responding a motion. after court, reviewing argu- district Strayhorn,

ments made to his review factors,

of the evidence and other related “We clear

stated: find from record that because, ‍‌‌​‌​​‌​‌​​‌​​‌‌​‌‌​​​​​‌‌​‌​‌‌‌‌​‌​‌​​‌​‌‌‌‌‌‌‌‍judge vacated the conviction evidence,

light of the he was convinced

beyond petitioner’s reasonable doubt (Dis. Br., Appellant’s App. A guilt.” Ct. 8). Op. Significantly,

Mem. the district Judge Strayhorn

court did find that va-

cated conviction because no reasonable beyond

factfinder could have been convinced guilt;

a reasonable doubt of Rivera’s say “acquittal did not only proper verdict.” 457 U.S. at 102 S.Ct. 2211. Even Strayhorn’s reading

court’s record correct, judge’s after-acquired reason- prior

able doubt serves vacate

decision, modify not to it into an not, indicated,

His doubt as I have “the *6 saying

same as defendant.” 17,102 at 42 n. 2211 (“disagree-

See id. jurors among judges

ments do not them- create a guilt”).

selves reasonable doubt of

Hence, there is no double here. COE, individually,

John behalf In Coe,

fant and on behalf of all others

similarly situated to John Coe all similarly Coe,

others situated Infant

Plaintiff-Appellant, COOK, al.,

COUNTY OF et

Defendants-Appellees.

No. 98-1164. Appeals,

United States Court of

Seventh Circuit.

Argued Sept. 1998.

Decided Dec.