Floyd Richardson v. Michael Lemke

RICHARDSON, Floyd Petitioner-

Appellee/Cross-Appellant, LEMKE, Respondent-

Michael

Appellant/Cross-Appellee. 12-1619, 12-1747.

Nos. Appeals, States Court

United Circuit.

Seventh Sept. 2013.

Argued 11, 2014. March

Decided Banc Rehearing En

Rehearing and May

Denied Sachs,

Joshua Law Office of Joshua Associates, Evanston, IL, Sachs & for Pe- titioner-Appellee. Schneider,

Joshua M. Office of the At- General, torney IL, Chicago, for Respon- dent-Appellant. WOOD,

Before Judge, Chief KANNE, BAUER and Judges. Circuit KANNE, Judge. Circuit Before petition us is a for a writ of corpus, by Floyd Richardson, habeas filed a convicted murderer. It is the second time his case has come before this court. The district granted court petition grounds, on Batson a decision which the appeals. State of Illinois Rich- ardson, turn, appeals the district court’s denial of evidentiary/due process his ineffective assistance of counsel claims. in part part. We reverse and affirm in First, grant we reverse the district court’s of habeas relief on grounds. Rich- procedurally challenge ardson defaulted a prosecution’s to the peremptories by use of failing to contemporaneously object, and he has not shown cause to excuse that Next, default. Our review is foreclosed. we affirm the district court’s treatment of the remaining two claims. Richardson’s petition is denied. twenty- judge The trial excused selection.

I. BACKGROUND twenty Richardson used four for cause. was convicted Floyd Richardson used challenges, and State peremptory During his robbery and murder. of armed object Richardson did sixteen. trial, presented of Illinois jury the State at trial. peremptories State’s use of testi- and identification evidence ballistics pair of shoot- Richardson to mony tying and Postconviction Appellate 1. State Side busi- place took South

ings that Proceedings Chicago A Police April nesses testified examiner Department firearms sentencing, appealed Richardson After came from scenes that rounds fired both While his to the Illinois Court. from both eyewitnesses gun, the same Court appeal pending, gun- as the Richardson scenes identified Kentucky, 476 decided Batson v. enough persuade man. That was (1986). 1712, 90 L.Ed.2d 69 convict, trial court sen- jury and the Nonetheless, again failed to Richardson to death.1 We dis- tenced Richardson use of per- make an issue of State’s sentencing trial and cussed Richardson’s The Illinois emptories. previous opinion hearing in detail in our with affirmed his conviction and sentence Briley, 401 case, Richardson v. this see any issues. addressing out selection (7th Cir.2005), and here F.3d 795-98 Richardson, Ill.2d People v. perti- facts that are only those we address (1988). 908, N.E.2d 612 His Ill.Dec. 528 at presently claims issue. nent to the for a writ of petitions rehearing for surveying the factual and begin by certiorari were denied. Richardson’s Batson history of procedural 1991, for petition In Richardson filed claim, the for the district which was basis It postconviction relief in state court. was corpus grant of a writ of habeas court’s trial point, years seven after his this subject of the State’s and which is the concluded, ap- that his Batson claim first provide background then appeal. We peared. He also attacked both trial and crimes evidence” to Richardson’s “other constitutionally inef- appellate counsel as ineffective-assistance-at-sentencing failure to raise the issue fective their claims, by the district were denied which moved to dismiss sooner. State subject Rich- are the court and which petition. The trial court found cross-appeal. ardson’s existing Batson claim was waived under a result of Richardson’s Illinois law as and Related Assis- Jury A. Selection object per- to the use of failure State’s Issues tance-of-Counsel Nonetheless, emptories at trial. the court subject of the The first issue—and the on to the claim on the mer- went consider challenge Richardson’s appeal State’s —is its, in of its connection to the part because peremptory use of strikes. to the State’s issues. ineffective assistance panels was selected considering In Richardson’s Batson judge trial conducted voir dire four. The claim, plead- the trial court reviewed question parties and did not allow exhibits, all, and the rec- sixty- ings, the associated of the venire. members it, did not hold an during jury ord available to but persons questioned one were parole. com- 1. Richardson's sentence has since been possibility prison muted to life in without the

263 evidentiary hearing any expan or allow for managing eases preserva- retroactive procedure sion of the record. This tion of Batson was claims to find waiver: based on the Illinois Postconviction Hear However, requires “a defen Act, ing permitted “summary which dis timely objection dant’s prosecutor’s to a missal” of a petition” added.) “nonmeritorious challenges.” (Emphasis Bat son, based on a of the petitioner’s 1712], review sub 476 99 A [106 S.Ct. existing missions and record defendant materials. who fails to raise a Batson objection People Mahaffey, v. before the jury Ill.2d is sworn (1995). waives the People Ill.Dec. issue. N.E.2d Fair [159 23], Ill.2d 201 Ill.Dec. 636 N.E.2d 455 it, On the record before the trial court (Ill.1994). This applied rule under the found that thirteen of the jurors sixteen old rule of (e.g., People Swain v. Gaines peremptorily prosecution excluded 795], Ill.2d [88 58 Ill.Dec. black, were but that the race of the other (Ill.1981)) N.E.2d 1046 applies jurors three stricken was unclear. It fur- pending cases on appeal when Batson ther found that the record did not show (e.g., People decided v. Evans [125 percentage what of the venire members 790], 530 Ill.2d 125 Ill.Dec. N.E.2d black, challenged for cause were but (Ill.1988); People accord v. Holder that, jurors of the fourteen and alternates 700], Ill.App.3d [153 106 Ill.Dec. 506 seated, actually eight were white and three (Ill.1987)). Thus, N.E.2d 407 a defen black, were with the race of the other object dant who failed to prosecu three unknown. The trial court also con- tion’s use of peremptory challenges un sidered that fifteen of the sixteen stricken der the old rule of Swain cannot receive jurors shared a non-suspect common char- appeal the benefit of the new rule acteristic in that none had ever been the announced in Batson. People v. Pecor victim of a relying crime. It concluded— 50], Ill.2d [153 180 Ill.Dec. significant part inadequacy on the of the (Ill.1992); N.E.2d 1127 Teague accord existing record —that Richardson had not Lane, 288, 1060, 489 U.S. 297 [109 S.Ct. prima made out a case that facie (1989) (under 103 L.Ed.2d 334] strikes were in a discriminatory used man- law, failure to raise Swain claim at trial It ner. also found that neither trial coun- and on direct review waives Batson-type appellate sel nor counsel was constitution- claim in post-conviction state proceed ally ineffective. petition Richardson’s was ing). dismissed. case, concedes, In this defendant as our Richardson appealed. The Illinois Su confirms, review of the record that his preme Court found that his Batson claim object trial counsel did not during voir waived, and declined to review it on prosecution’s dire to the per use of its Richardson, People merits. v. emptory challenges or include this issue 401, 109, 362, Ill.2d 245 Ill.Dec. 727 N.E.2d post-trial in the motion. We note that (2000). so, first, doing 368-69 In the court while appeal defendant’s direct was be correctly observed that Batson was at briefed, ing this court remanded several Richardson, least theoretically available to pending cases to trial courts for Batson because it was decided while his case was hearings, where the Batson issue was (cit pending on direct review. Id. at 368 timely People Hooper raised trial. 314, ing Kentucky, 250], Ill.2d [118 107 Ill.Dec. Griffith (1987)). (Ill.1987) J„ 93 L.Ed.2d 649 But the (Ryan, N.E.2d 1305 concur court then on a ring) relied series of Illinois (describing remanding court as “all and independent of waiver was an finding the Batson in which on review

cases Bat for dismissal. adequate ground to circuit courts for state law is viable” issue see, Ill. e.g., [125 Evans hearings); found that Richardson son But the court also , Defendant N.E.2d 1360. Dec. for the default likely 790] establish cause could this claim. has waived prejudice arising actual therefrom. Richardson, 727 N.E.2d Ill.Dec. cause, judge to the district respect With (internal citations reformatted at 368-69 fail- that Richardson’s default —his found States The United clarity). for object peremp- use of ure to to State’s Richard certiorari. again denied be- during tories selection—occurred Illinois, son v. basis” for no “reasonable cause there was (2000). L.Ed.2d 116 of trial. objection at the time such an also consid Supreme Court The Illinois alternative, “proto-Bai- if a Batson or ineffective assistance ered ” available, the district court son claim was explicitly abandoned claim. Richardson appellate trial and counsel found that both counsel was ineffective claim that trial his failing for constitutionally ineffective were objection, see to raise a Batson failing for to raise it. but 727 N.E.2d 245 Ill.Dec. coun appellate maintain continued to respect prejudice, the district With for the same reason. sel was ineffective that his determination judge explained appellate disagreed, finding The court merits, inevitably but would be tied constitu not be considered counsel could nature of Richardson’s he noted that the failing argue tionally ineffective true, if it was claim meant —if 109, 727 N.E.2d claim. 245 Ill.Dec. waived purposefully exclude prosecution really did at 369-70. prospective jurors from service—(cid:127) black certainly prejudiced. was almost he Proceedings Federal reasons,' and because he foregoing For the move, was to Richardson’s next diligently had at- found that Richardson seeking a writ of habe- file in federal court during the record tempted expand grounds, including corpus as on various dis- postconviction proceedings, the court unsuccessfully claim he assert- the Batson evidentiary that an judge trict concluded proceedings. postconviction ed in state hearing was warranted. evidentiary The district court conducted relief on the hearing granted opinion habeas In a corrected memorandum is 13, 2012, deceived grounds prosecution the on March Richardson sued (N.D.Ill.2012), to call an excul- neglecting Richardson into Hardy, F.Supp.2d appeal, we reversed. patory witness. On judge granted habeas relief on the district Briley, 401 F.3d 794. We Richardson maintained its grounds. The court prejudiced that Richardson was not found to the issues of prior position regard with misconduct, alleged prosecutor’s the cause therefor: procedural default and proceedings for further and remanded procedurally claim was while the Batson the claims. Id. at 803. unresolved defaulted, the default was excused because for it at the there was no reasonable basis court turned to the Batson

The district alternative, trial, or, in the because McCann, time of remand. Richardson v. claim on (N.D.Ill.2008). counsel were constitu appellate trial and F.Supp.2d the tionally failing for to raise ineffective procedurally that the claim was court held timely in a fashion. Court’s issue defaulted —the Turning questions (1) peals related of actu- the resolution of two of them: his claim,2 al prejudice and the merits of the claim that the admission of certain “other judge expanded the district reviewed the crimes unfair; evidence” rendered his trial record. In addition to the information his claim that trial counsel was available to state trial post- the court on constitutionally during ineffective the sen- review, judge conviction the district tencing phase. Although the district court able to ascertain that all sixteen of the denied relief grounds, on both it issued a prosecution’s peremptory strikes were certificate of appealability respect jurors, used on black and that the net the expanded latter. We the certificate to effect of those produce strikes was to include the former. petit jury that was one-third black and figures two-thirds white. Those stood 1. Other Crimes Evidence contrast to the composition of the total Richardson was convicted of April prospective jurors number of tendered to 1980, armed robbery of Twin Foods & the prosecution, fifty-six of which percent Liquors, a convenience store located on the forty-four were black and percent were South Chicago. Side of He was also con- white. starting point, Based on the the end victed contemporaneous of the murder of point, and several observations about the Vrabel, George employee of the store. latter, path from the former to the trial, however, During the evidence of two district judge concluded that Richardson noncharged criminal incidents was also in- had made out a prima case under facie First, troduced. prosecution intro- Batson. duced pertaining evidence April to an Next, the district court found that the 1980, robbery and shooting at a tavern purported nondiscriminatory reasons for about away. one mile The prosecution prosecution’s peremptory use of tied the two 1980 robberies together with largely conjectural strikes —which were ballistics evidence and relied on identifica- circumstantial, given prosecu- that the testimony tion from witnesses at both tors themselves could not recall their mo- crime scenes attain a conviction. Sec- tives from years ago over 30 —could ond, prosecution introduced evidence satisfactorily explain all sixteen of the robbery of an armed May that occurred on challenged Although strikes. it held Rich- occasion, police 1982. On that had ar- persuasion, ardson to his burden of it vicinity rested Richardson in the of the found that burden to be discharged and crime description because he matched a granted the writ. The State of Illinois perpetrator. appeals. a. Proceedings State Court B. Cross-Appeal granting objected grounds, the writ on Batson Richardson to the introduction the district court also considered of the foregoing Richard- evidence at trial. The claims, which, remaining son’s each of trial court ruled April concluded, ap- lacked merit. Richardson evidence was purpose admissible trial, 2. proven, The district court remedy was correct to consider been is a new with- question prejudice dependent upon of any inquiry as out the need for into harmless merits, engaging without in a empaneled jury.” harmless error or examination of analysis. (7th error “Batson Boatwright, itself as well as the Winston 649 F.3d Cir.2011). words, cases that follow confirm that when a viola- In other a Batson violation equal protection jury tion of in selection has is a structural error. Id. at 628-29. used evidence, that evidence is where even identity and that the defendant’s proving therefore, Relief, propensity.3 to show was admissible evidence May general a only be available under Richard could of the circumstances explain to theory. The dis- process due procedural Richardson appeal, On direct son’s arrest. the Illinois say not could Su trict court The Illinois objection. his renewed to an amounted Court decision dangers Supreme acknowledged the preme Court general due of application other unreasonable introduction of to attendant denied relief. and so April process principles, that the evidence, found but crimes appeals. and ad relevant Richardson “highly was 5th evidence identifying of purpose for missible” Sentencing Assistance 2. Ineffective 1st April shooter. as the Richardson Illi The at 617. 528 N.E.2d Ill.Dec. armed rob- convicted of was Richardson Rich agree with did Supreme nois Court George Vrabel of the murder bery and justifiable basis was no that there ardson was but sentence by his evidence, May 4th of the the admission for During the by the trial judge. determined admis the erroneous it concluded but in- of Illinois sentencing the State phase, Ill.Dec. Id. 123 sion was harmless. aggrava- evidence troduced substantial Richardson did 619. N.E.2d at Rich- tion, consisting mostly of'evidence evi his other crimes pursue to continue past. criminal egregiously ardson’s pro postconviction dence claims in trial counsel of- mitigation, Richardson’s opinions postconviction ceedings, and the Richardson, his testimony of fered the Illinois and the trial court of both the mother, The paramour. sometime and his to it. no contain reference Court Supreme primarily women was testimony of the evidence, claims consisting of

character Proceedings b. Federal Court father and a good that Richardson was son, right place. in the his heart good grant habe- refused The district court in- his downplayed himself Richardson other on as relief based inci- of the criminal with some volvement corrected claim in its memorandum crimes justified his prosecution, by the dents cited Richardson, F.Supp.2d opinion. others, and admitted participation the Illinois 814-17. Because sentenced The trial court remainder. the issue on the merits decided Court to death. Richardson court asked the district appeal, direct contrary decision whether court’s Proceedings a. Court State of, clear- to, application or an unreasonable trial counsel’s first attacked Richardson law as determined federal ly established in his state- sentencing-phase performance of the United 2254(d)(1). relief. His postconviction dis- court motion § The States. U.S.C. was ineffective for is that counsel Although claim that it was not. trict court found poten- investigate and introduce failing do limit the of Evidence the Federal Rules evidence, including trau- tially mitigating uncharged introduction of evidence childhood 404(b), aspects matic of Richardson’s behavior, Fed.R.Evid. criminal see his diminished history as well as statu- and social constitutional is no or there federal capacity. such mental trial tory right to a state-court free terms, only proceedings in apply, by their are Although the Federal Rules of Evidence 101(a). statutory are codi- law and considered federal courts. Fed.R.Evid. federal Code, they United States in Title 28 of the fied standard, Court, applying requires slightly the Strickland different Strickland performance concluded that counsel’s was performance analysis. But the district 245 Ill.Dec. 727 N.E.2d not deficient. court ruled that the applica- state court’s (citing Washing at 369-74 Strickland tion of the prejudice prong of the Strick- ton, unreasonable, land test was not and for (1984)). view, In L.Ed.2d 674 the court’s alone, that reason Richardson’s claim could to introduce evidence of Richardson’s di not be successful. ap- Richardson now capacity mitigating minished mental —the peals the district court’s conclusion. culpa value of which would be decreased

bility for his actions—would in have been II. ANALYSIS compatible with Richardson’s continued protestations that he was innocent. Id. begin We with the State’s appeal of the 245 Ill.Dec. 727 N.E.2d at 372. district court’s treatment of the Batson alternative, prejudice; the court saw no agree claim. We with the district court aggravators the balance of miti- versus procedurally Richardson defaulted the that, gators if lopsided was so even claim, and that his default was indeed an evidence in sought Richardson had been independent adequate law troduced, virtually possibility there was no ground for the Illinois Court’s of a sentence other than death. Id. 245 judgment. part ways with the district Ill.Dec. 727 N.E.2d at 372-73. More court, however, on the issue of cause to over, the court felt that the trial court excuse the default. Richardson rely cannot likely would have viewed additional evi performance on the of trial counsel as personal dence Richardson’s troubled cause because he independently failed to history and social as aggravating, rather preserve that claim. rely He cannot mitigating. than Id. 245 Ill.Dec. performance appellate counsel as N.E.2d at 374. It denied relief. cause appellate because counsel was not constitutionally Finally, ineffective. he Proceedings b. Federal Court Ross, rely cannot on the rule of Reed v. By the time Richardson’s ineffective-as- 1, 17, 104 82 L.Ed.2d sistance-at-sentencing claim was decided (1984), apply because does not to this court, by the district his sentence had been case. Richardson’s failure to show cause prison commuted to life in without to excuse his default means that our re possibility parole. But that did not foreclosed; view we need not consider moot; necessarily render the claim Rich- question prejudice. of actual ardson would still be entitled to relief if Next, we turn to the two claims which adequate representation would have re- cross-ap- lie at the core of Richardson’s years. sulted a sentence to a term of peal. 2254(d) We affirm the district court’s denial Applying § the deferential stan- grounds. of habeas relief on both dards to the Illinois anal- Court’s ysis, Court confronted each is- expressed the district court some merits, apply sue on the so we doubt about deferen- that court’s conclusion that tial standard of review codified in the Anti- trial counsel had made a choice deliberate forego presentation Penalty terrorism and Effective Death Act of evidence re- (“AEDPA”), of 1996 lated Richardson’s diminished mental and we find that the view, capacity. In the district court’s state court’s treatment of the issues was suggested evidence that trial counsel had not unreasonable. The end result is that all, investigated the issue petition which Richardson’s is denied in full. 268 a state court relies on Accordingly, when

A. Claim Batson law independent adequate an state review Richardson’s cannot We claim, a that state to resolve such ground first the merits without claim on usually re- ground procedural. law fact that the Illinois with the grappling way being in this as fer to claims resolved Court, court to as the last state Woods, defaulted. 589 F.3d procedurally issue, it on appeared to resolve address the at 373. “When a ground law of waiver. the state claim a federal state court resolves take several Procedural defaults that is both relying ground on a state law forms, paradigmatic. but two are On question of the federal independent hand, might procedurally a claim be one federal support judgment, to adequate “fairly petitioner when a fails to defaulted of the claim is foreclosed.” habeas review courts, re his claim to the state present” Rednour, 586, v. 627 F.3d 591 Kaczmarek initially gardless preserved of whether he (7th Cir.2010) Schwartz, v. (citing Woods trial To objection it with an at the level. (7th Cir.2009); 368, F.3d 373 Coleman 589 claim, petition fairly present his federal 722, 729, 111 Thompson, v. 501 U.S. S.Ct. throughout that claim at er must assert (1991)). 2546, In the 115 L.Ed.2d 640 of state-court complete least one round context, “independent and ade habeas review, appeal whether on direct of his doctrine does not quate ground” post-conviction proceed in conviction or bar. It is based jurisdictional serve as a Lemke, 476, ings. McDowell v. 737 F.3d “equitable considerations of fed instead on (7th Cir.2013); also O’Sullivan v. 482 see comity,” Single Lambrix v. eralism Boerckel, 838, 845, 119 526 U.S. S.Ct. 518, 523, 117 tary, 520 U.S. S.Ct. 137 (1999). complete round L.Ed.2d (1997), and it serves to ensure L.Ed.2d petitioner requirement means that the' correcting “that the States’ interest every at each and must raise issue respected own mistakes is all fed their system, including level in the state court Coleman, 501 at eral habeas cases.” U.S. discretionary levels at which review is 2546; v. 111 S.Ct. see also Dretke Sternes, mandatory. rather than Lewis 386, 392-93, Haley, 541 (cit (7th Cir.2004) 390 F.3d 1025-26 (referring to 158 L.Ed.2d 659 O’Sullivan, 845-46, ing “prudential” origin). the rule as 1728).4 hand, On the other a claim through a applies regardless might procedurally The doctrine be defaulted preserve initial ground petitioner’s of whether the state law is sub failure Coleman, objection, if the procedural. petitioner stantive or 501 U.S. with even it for review. given attempt present 2546. But what a later does is, petition corpus for habeas the substan a state court refuses to reach the “[W]hen legal petitioner’s tive merit of a claim contained there merits of a federal claims be they were not raised in accord with governed by in is bound to be federal law. cause Lewis, procedural “Only the state 4. This first sort of default is an 390 F.3d at 1025. if opportunity outgrowth statutory requirement that a courts have had the first to hear of the petitioner sought vindicated in the feder- habeas exhaust his remedies in the claim to be proceeding taking federal al habeas does it make sense to state court before his case to petitioner's speak of state remedies.” court. "Inherent in the habeas of the exhaustion Connor, 270, 276, obligation to exhaust his state court remedies Picard v. (1971). seeking corpus, relief in habeas see 28 30 L.Ed.2d 438 Lieberman before Cf. Thomas, (7th Cir.2007) 2254(b)(1)(A), duty fairly § F.3d 669-70 U.S.C. is the default). (failure procedural present to exhaust is a his federal claims to state courts.” (i.e., procedural rules because dent” state ground state’s law to support judg- contemporaneously failed to petitioner ment. state court must have actually object), independent that decision rests on relied on that rule—and not on a parallel adequate procedural grounds.” state or interwoven federal basis—in order to Kaczmarek, Woods, (citing 627 F.3d at 591 our foreclose review. Caldwell v. Missis- 373; Gray Hardy, 589 F.3d at 598 F.3d 320, sippi, 327, 2633, 472 U.S. 105 S.Ct. 86 (7th Cir.2010)). 324, 329 (1985) (“The L.Ed.2d 231 mere existence of a basis a procedural for state bar does The last state court to Richard consider deprive not this jurisdiction; Court of son’s Batson claim was the Illinois Su actually state court must have relied on Court, preme postconviction on review. procedural Richardson, bar as an 109, independent basis Ill.Dec. 727 245 N.E.2d case.”). for its disposition do at The court found We 368-69. that Richard genuine ambiguity construe by son had “waived this claim” favor of failing to state; if it object “fairly contemporaneously appears” State’s state court use rested its decision peremptories.5 primarily Id. 245 Ill.Dec. on federal therewith, 727 N.E.2d at 369. The or is finding waiver law interwoven a unquestionably may was the federal court review the federal ques- basis decision, certainly court’s and it tion unless opinion looks like the state court’s con- See, procedural a “plain default. Kaczma tains a e.g., statement” that its decision rek, 627 F.3d at 591 (referring grounds. Reed, failure to rests on state Harris v. contemporaneously object procedural 255, 261, as a 489 U.S. 103 default); Walls, (1989). Brooks v. 279 F.3d L.Ed.2d 308 (7th Cir.2002) (using the same exam position Richardson’s is that the Illinois ple). Supreme opinion Court’s was ambiguous. Richardson admits that the waiver rul argument His depends lifting a single ing nature, procedural was but he ar phrase out of requires context: “Batson ‘a gues that it was based on a rule of federal objection timely defendant’s to a prosecu- procedure, despite the fact it was ” challenges.’ tor’s 245 Ill.Dec. Thus, issued state court. argues, he Batson, at (quoting N.E.2d at his claim may defaulted, while have been 1712) (emphasis original). that default was not an “independent,” nor He believes the state court relied on a an “adequate,” ground state for the deci timely objection federal in- requirement sion. disagreed. The district court We itself, trinsic to its state procedural review defaults related is law waiver decision ap- therefore least novo, Frank, Page sues de 343 F.3d peared to be interwoven with law. federal (7th Cir.2003), and we the in discuss disagree. opinion We The state court dependence adequacy and the of the waiv not ambiguous, plainly and it does not bear er finding sequentially. interpretation. 1. Independence Finding Waiver First, Richardson seems to think that right

Richardson is to stress the mere mention of federal case creates that the mere invocation of a law rule an ambiguity. ambiguity state But the sort of necessarily does not “indepen- necessary create an that is to justify abandoning our need not discuss whether Richardson’s Court is free to decide what object failure to judi- constituted a “waiver” or a to call such a failure within that state’s law, system. under our "forfeiture" own as the cial case Second, timing requirement the federal judg- court of deference position court Richardson claims the state on which merely superfi- or is not semantic ments simply does not exist. partially relied applica- Court’s cial. Under Certainly a defendant must raise a Batson with the we are concerned precedents, ble claim; that is true claim to have a Batson court decision the state grounds on which argument. But the any legal See, “rest,” “rely.” or to fairly appears to gone impose never so far as to Court has Coleman, e.g., in the requirements on the states specific Caldwell, 2546; 472 U.S. at Batson, Batson context. 2633; Harris, 261, 109 S.Ct. 489 U.S. rules “imposed procedural no new surrounding The context the sen- particular and declined either ‘to formulate cherry-picked by petitioner tence upon to followed a defen procedures be abundantly that the Illinois clear makes timely objection prosecutor’s to a dant’s an rule Supreme Court relied on objection an challenges,’ or to decide when of claims relat- governing preservation timely.” Ford v. must be made to be jury composition, to one which re- ed 411, 423, 850, 111 Georgia, 498 U.S. S.Ct. unchanged throughout the Swaim- mained Batson, (quoting 112 L.Ed.2d 935 Batson transition: 1712). 99-100, 106 There courts, A defendant who fails to raise Batson was a reason for that. Federal as rule, objection jury general do not tell state courts before sworn objection, require when and how to People waives the issue. v. Fair [159 ... to looking of appropriateness “[t]he 51, 23], N.E.2d Ill.2d 201 Ill.Dec. 636 455 governing for the law the time local rules (Ill.1994). applied This rule under the ... of a constitutional claim is liness (e.g., People old rule of v. Swain Gaines added); (emphasis see also clear.” Id. 342, 795], Ill.2d 58 Ill.Dec. 430 [88 (7th McBride, 144, 74 F.3d 146 Hogan v. (Ill.1981)) applies N.E.2d 1046 Cir.1996) (“failure to a claim at the present when Batson pending appeal cases on time, way, by the required and in the state (e.g., v. Evans People [125 was decided decision, independent ground is an state 50, 790], Ill.2d 125 Ill.Dec. 530 N.E.2d court.”). do barring review in federal (Ill.1988); People 1360 accord v. Holder un any not think reasonable reader could 700], Ill.Dec. 506 Ill.App.3d [153 106 on derstand the state court to have relied (Ill.1987)). Thus, N.E.2d 407 a defen not exist. a federal directive that does object prosecu dant who failed to the Third, premise— even if Richardson’s peremptory challenges tion’s use of un objec- timely that the state court derived a der the old rule of Swain cannot receive from Batson itself —was requirement tion appeal the benefit of the new rule accurate, still be his conclusion would People announced Batson. Pecor a failure to wrong, because the effect 50], 606 [153 Ill.2d 180 Ill.Dec. is, by comply requirement with that defini- (Ill.1992)[.] N.E.2d 1127 tion, a of state law. Different question (cita 245 Ill.Dec. 727 N.E.2d at 368 regarding the courts make different rules clarity). tions reformatted for No reason objec- effect of a basic failure to raise an able reader could understand the Illinois required; tion when and where one is relying Court to be on a waiver contrast between our own waiver/forfeiture requirement to Batson when its approach pro- intrinsic and the Illinois distinction rule on are opinion explicitly good example. states that vides a These rules always of the court predates province which it relies that decision. within the

271 423-24, 850; system they applied. in which are to be U.S. at see also McKee, (7th law the Supreme Under the Court and Smith v. 598 F.3d circuit, Cir.2010); respect Gilmore, of this a federal court must Franklin v. 188 F.3d (7th Cir.1999). application a state court’s of its own rules Only then can a Illinois, procedure. petitioner of basic Bute be “deemed to have ap- been 640, 668, prised 92 L.Ed. of its existence.” NAACP v. Ala- (1948) (referencing Patterson, the “basic 449, 457, and historic bama ex rel. (1958). power of the prescribe states to their own L.Ed.2d 1488 local procedures”); court Coleman v. argues that the rule Richardson (7th Cir.1988) O’Leary, 845 F.2d under which he procedurally defaulted was (observing question that “the of whether a not place at the time of his trial because properly applied state court its state pro Batson had yet been decided. But law”). cedural rules is a matter Richardson objection did not default an Richardson admits his claim was resolved jury composition Batson; because of on the basis of waiver. It makes little he objection defaulted an com waived; exactly difference what was this position one, because he did not make and procedural sort of basic waiver is a resolu because, under Illinois law pre-dating and grounds. tion on state law post-dating trial, both Batson and his is waiver.6 As the court explained, “a reiterate,

To the Illinois Supreme defendant who object failed to to pros opinion ambiguous. Court’s was not It peremptory ecution’s use of challenges un clearly rely by did not on a rule created der the old rule of Swain cannot receive Batson, given that it cited and relied on appeal on the benefit of the rule an new Illinois case law both predating post and 109, nounced in Batson.” 245 Ill.Dec. 727 dating Furthermore, that decision. Rich N.E.2d at 368. The cases cited argue ardson does not that the court based show that the waiv judgment anything its other than waiv concerning objections er rule jury to com er, and an independent waiver is state law position existed at the time of Richardson’s ground. remaining question is wheth trial, Gaines, 342, People see v. 88 Ill.2d 58 “adequate” er it is an ground presump to 1046, Ill.Dec. 430 N.E.2d 1054 tively foreclose our review.

(refusing challenge to consider to racial Adequacy Finding composition jury Waiver when defendant did object sworn), not before and that ground A state law must be “ade See, it regularly has been followed since. quate,” independent, addition to to fore Pecor, e.g., People v. 153 Ill.2d 180 close procedural federal review. For a (1992). Ill.Dec. 606 N.E.2d 1127 Ac default to adequate be considered an state cordingly, the Illinois waiver rule is an ground, law the rule under which it is adequate state ground judgment. law for a firmly invoked must have been established regularly and followed as of the time when The Illinois finding Court’s procedural default occurred. James v. Richardson waived his claim 341, 348-49, Kentucky, 466 by failing 104 contemporaneous to make a ob- Ford, (1984); jection 80 L.Ed.2d 346 prosecutor’s 498 peremp- use of say argu- determining 6. This is not to that Richardson’s whether default occurred in concerning place, ment the nonexistence of a Batson the first it factor does into our consid- claim place at the time of his trial has no eration of whether there is cause to excuse appeal this at all. While it is not relevant to that default. 272 Watters, F.3d jury was default. Brown v. composition of the

tories or to the (7th Cir.2010) law adequate (citing Murray and Carri independent Richardson judgment. er, 478, 488-89, ground for that claim. The (1986)). defaulted procedurally But those claims L.Ed.2d 397 may reach the is whether we question next preserved; must themselves be in order merits nonetheless. independent “to use the constitutional of trial and claims of ineffective assistance Prejudice

3. Cause pro- appellate counsel as cause excuse and ade independent Because default, required petitioner is] cedural [a ground prudential law rule is quate state full through raise the claims one round may excuse a jurisdictional, not we review, procedural court or face of state petitioner if the can default procedural Gray, of those claims as well.” default prejudice for and from show both cause F.3d at 330. or can demonstrate default the claim court’s failure to consider district his presented Richardson never miscarriage in a fundamental would result assistance of trial coun claim of ineffective Akpore, 730 F.3d justice. Bolton v. for one full round of review. He did sel Cir.2013). (7th Richardson does not review, present it at all on direct miscarriage justice has argue that a the Illinois present he did not Su occurred, argue he does cause and but review. On the preme Court on collateral re prejudice to excuse the default. We contrary, affirmatively he it. abandoned prejudice questions de view the cause and 109, 727 at 369. This 245 Ill.Dec. N.E.2d Hardy, 608 F.3d novo. Holmes defaulted, and Rich procedurally claim is Cir.2010). (7th argument no to save it. It ardson offers cannot serve as cause to avoid ordinarily therefore for a default is Cause on the claim. by showing type that some of his default established peti the impediment prevented external Lewis, his claim. presenting tioner from Appellate b. Counsel Performance of argues 390 F.3d at 1026. Richardson argument Richardson’s second for cause potential three causes to excuse his de was appellate is his assertion that counsel (1) counsel was constitu fault: that trial constitutionally failing ineffective for to failing object to tionally ineffective appeal. on direct raise Batson issue (2) peremptories; prosecution’s use preserve independently Richardson did constitutionally appellate that counsel was claim, every it at in the arguing this level failing ineffective for to raise a Batson process. review To state court collateral review,

claim on direct when Batson had establish ineffective assistance sufficient to (3) decided; already been that there default, procedural petitioner excuse a a challenge was no reasonable basis for a two-part satisfy must the familiar test prosecution’s peremptories use of at Washington, 466 from Strickland v. trial, relying the time of on the rule of Ross, at 104 S.Ct. 2052. He must show Reed v. performance objectively was defi- counsel’s argu address Richardson’s performance the deficient sequentially. ments cient and prejudiced his case. The Illinois a. Trial Counsel Performance of appellate concluded that counsel was Court failing argue not ineffective for a waived claims of

Meritorious ineffec procedural tive assistance can excuse a claim. circuit,

In our we a appellate when review state ardson’s attorney had tried to resolution of an assis- challenge court’s ineffective prosecution’s peremp- use of cause-and-prejudice claim in the con- tance tories before the Court on text, apply we the same stan- deferential direct appeal, would have found that the reviewing dard as we would when claim was waived through trial counsel’s Gray, on own claim its merits. 598 F.3d failure to contemporaneously object just— 330-31; Buss, Wrinkles v. 537 F.3d as it found when faced with the exact same Cir.2008). (7th words, In other inef- question on collateral review. Because ap- only provides fective assistance cause to pellate provide counsel did not constitu- if excuse default the state court decision tionally assistance, ineffective the perform- respect ineffective assistance ance of appellate counsel cannot excuse to, contrary or claim: involved an procedural Richardson’s default. of, application clearly unreasonable estab law, lished federal as determined c. Reed v. Ross States; Supreme Court of the United or (2) was based on an determi unreasonable The district court found that there was light nation of the facts in of the evidence cause to excuse procedural presented in the court proceeding. default because no reasonable basis exist- 2254(d); Wrinkles, § 28 U.S.C. 537 F.3d at ed for a challenge to prosecution’s use 813. Other courts review nested ineffec of peremptories trial, at the time of relying novo, tive assistance issues de or have Ross, Reed v. from deciding refrained which standard of Reed, 2901. In Court first See, review to apply. e.g., Janosky v. St. identified three situations which it might Amand, (1st Cir.2010) 594 F.3d 44-45 be said to announce a “new” rule: (acknowledging split); circuit Hall v. Vas First, a decision of this Court may ex- binder, (6th Cir.2009) 563 F.3d 236-37 plicitly one of our precedents. overrule (applying de novo standard of review Second, may decision long- overturn a context); prejudice the cause and Fischetti standing widespread practice to Johnson, (3d 384 F.3d 154-55 Cir. which spoken, this has not but 2004) (same); Rudek, but see Roberson which body a near-unanimous of lower (10th Cir.2011) 107, 109 (im Fed.Appx. authority court expressly approved. has plicitly agreeing with approach by our af And, finally, may a disapprove decision a firming district court’s invocation of AED- practice deference). arguably this Court has sanc- PA in tioned cases. prior The of standard makes no review (citations 17, 468 U.S. at S.Ct. 2901 difference here. Richardson did not re omitted). markup internal It then ineffective appellate ceive assistance of explained that when a case falling one into prejudice In order for the prong counsel. of categories given the first two is retroac- satisfied, of the Strickland test to be “[t]he application, tive “there will almost certain- defendant must show that there is a rea ly have been no that, upon reasonable basis probability sonable but for counsel’s attorney previously which an errors, could have unprofessional the of the result urged a adopt position state court to the proceeding would have been different.” Strickland, 694, that ultimately adopted.” at this has U.S. 104 S.Ct. 2052. Court circumstances, We know that there is Id. no chance the out Under such cause would have If procedural come been different. Rich- excuse a default present. claiming a unconstitu placed that Reed v. on defendant if we assume

Even created law,7 agree peremptories. Swain we cannot tional use is still valid Ross history presumption, of it a rooted the court’s invocation with the district law, that peremptory Batson did overrule strikes at common the case before us. Alabama, 202, using 85 S.Ct. those strikes prosecution 380 U.S. the was Swain (1965), to the extent 13 L.Ed.2d 759 380 U.S. at 85 S.Ct. 824. properly. in conflict. 476 only the two cases were presumption that could be overcome 1712. But at 100 n. 106 S.Ct. peremptory U.S. that the strike with evidence the rule that Batson did not invent being perverted, proved which system was when Equal Protection Clause violates exceedingly difficult standard to to be challenges peremptory uses prosecutor Batson, 91-93, meet. See race, jurors account of their to strike on changed the quantum 1712. Batson in that re nor did it conflict with Swain necessary prima to make out a proof Quite contrary, it found that gard. discrimination, laying out the case of facie Batson, 476 U.S. rule in Swain itself. See burden-shifting framework now-familiar (“[Swain went on to ] prove discrimina making possible may ... not exercise that a State observe single with evidence intrinsic to a tion of the challenges its contravention case. But none of that means Batson Clause.”). For that mat Equal Protection a new claim that was not available created rule, either; ter, did not invent the Swain to Richardson at the time of his trial. It See, e.g., Nor it had existed for decades. simply pre-exist- means Batson made his Alabama, 587, 589, 55 S.Ct. ris v. ing substantially constitutional claim less (explaining 79 L.Ed. 1074 prove. According difficult to to the Su of individu principle the exclusion Court, preme that is not cause. Smith v. jury account of grand als from service on Murray, 477 constitutionally problematic their race is (1986) (“the question 91 L.Ed.2d 434 is not applies equally to exclusion from service subsequent legal developments whether juries). petit easier, have made counsel’s task but whether at time the default per-

That rule that the use of rule —the all.”). Thus, claim ‘available’at Rich emptories persons to exclude from service ardson’s default is not excused. of race vio- petit on the on account Equal lates the Protection Clause—is note, significantly, that our under- claim in this “legal basis” of Richardson’s standing transition is of the Swamr-Batson case. Batson did not overrule Swain of the based on words It regard legal to that basis. did itself: Richardson opposite; it affirmed it. Alabama, In Swain v. the Court held legal basis argue therefore cannot that, although peremptory the use of Batson, before of his claim was unavailable challenges jurors to strike black on ac- rely on the rule of Reed v. and he cannot Equal race violated the Protec- count of

Ross. Clause, a defendant could not estab- tion sure, solely proof a violation on To be Batson did overrule Swain lish such burden action at his own trial. respect evidentiary prosecutor’s to the with ” treating legal change Supreme Court's as 'cause.’ Prihoda v. 7. We have observed that the Lane, 288, 1379, (7th Teague McCaughtry, later decision in v. 489 U.S. F.2d 1386 Cir. 910 1060, (1989), 334 1990). 103 L.Ed.2d independent for a doctrine “leaves no role

275 Swain, portion 5, 1980, the neighborhood April Batson overruled on changing proving the standard un- May The last state court to con- peremptory constitutional abuse of chal- sider the issue was the lenges. review, Court on direct which found that 5, 1980, April evidence was “highly 255, 258-59, Hardy, Allen v. purpose relevant and admissible” for the (1986) (internal 92 L.Ed.2d 199 identifying Richardson as April 1st omitted) added). (emphasis In citations shooter, that, while justi- there was no words, said, other we have did as basis May fiable for the admission of the change right; changed the stan- evidence, 4th the erroneous admission was proof. dard of The dissent reads the tran- harmless. not, vacuum, differently, sition in a believe, however, unreasonably. We A corpus petitioner may habeas we are bound to honor only obtain relief if he shows he is interpretation prior Court’s of its own case custody “in violation of the Constitution or law. laws or treaties the United States.” 28 that, joined by every arewe circuit 2254(a). § U.S.C. That means an errone court to consider this issue. See Ruff ous admission under state rules of evi

Armontrout, (8th 77 F.3d Cir. dence is no concern of ours unless it is so Cook, 1996); Pitts v. 1572- F.2d egregiously prejudicial implicate as to con (11th Cir.1991); McCarthy, Williams v. stitutional principles. Accordingly, Rich (9th Cir.1989) 879 F.2d 866 (unpublished process ardson couches his claim in due decision); Butler, table Jones v. 864 F.2d terms. The district court correctly noted (5th Cir.1988). Although 363-64 that claims based the “catch-all sense of provided by rationales our sister circuits process” always due almost fail. 855 own, respects differ in some from our we F.Supp.2d at (quoting Hammer v. have all reached the conclusion that Bat- Karlen, (7th 342 F.3d 811 n. 3 Cir. change existing son did not work law 2003)). evidentiary State court rulings object sufficient to excuse a failure un only implicate the Due Process Clause der Swain. Without cause to excuse Rich extremely when “evidence ‘is so unfair that default, ardson’s we need not ask whether concep its admission violates fundamental actually prejudiced by he is it. Our review ” justicef.]’ Perry tions of Hamp New foreclosed, and we reverse the district —shire, - , 716, 723, grant petition. court’s of his 181 L.Ed.2d 694 (quoting Dowling States, 342, 352, v. United B. Other Crimes Evidence (1990)). 107 L.Ed.2d 708 appeals Richardson the district court’s lofty district court did not believe that denial of his claim concerning the admis- standard met and relief. denied sion of certain other crimes evidence. Al- novo, Gaetz, review de Ebert v. 610 F.3d though only charged Richardson was (7th Cir.2010), agree. and we 1, 1980, relating April crimes armed robbery at Liquors, Twin Foods & Even if we assume Richardson prosecution also link- properly preserved introduced evidence constitutional ing claim,8 him to taking place agree armed robberies we with the court. district memorandum, evidentiary supplemental 8. Richardson did couch the claim but it is not initially argued in constitutional terms before the Illinois Su- clear whether he it as such preme by describing Court it as such in a the trial level or whether failure to do so 276 link overstated. value of that cannot be Supreme of the Illinois consideration

Our deferential, prejudicial it was also To whatever extent and we will decision is Court’s evidence (probative to Richardson’s case if the state court decision: only relief grant always point), prejudice is—that’s the (1) to, involved an unrea- contrary or was the of, greatly outweigh probative does not clearly established application sonable value. law, by the as determined federal States; or Court of the United Second, agree May that the we further unreasonable determination based on an 4, 1982, particularly prej was not evidence presented of the evidence light

the facts in and came testimony udicial. The was brief proceeding. in court U.S.C. the state Soltys v. limiting instruction. See 2254(d). make it dif- § The circumstances Cir.2008) (7th Costello, 737, 744 520 F.3d defer- coherently apply AEDPA ficult to (“We juries in presume that follow the Supreme Court’s deci- ence to the Illinois court.”); by the 3M given structions them rules entirely on state sion'—-it was based (7th Cir.2001). Pribyl, v. 259 F.3d But a court decision of evidence. no reason to believe that it influ There is precedent cite federal is still that does not heavily improper the and so enced so long nei- with federal law so as consistent ly conceptions as to violate fundamental nor the result of the reasoning ther the justice. Perry, 132 S.Ct. contradicts the Su- state court decision Finally, we note that we reached these Packer, Early decisions. preme Court’s by evaluating conclusions the effect of this 3, 8, 154 L.Ed.2d the trial in evidence within the context of (2002). admitted —the same trial in which was did The Illinois Court purportedly exculpa- which the defendant’s any principles, federal let not contradict testify. tory permitted witness was not any principles alone established separately no There is need consider United States Court itself. effect of that issue. the cumulative evidentiary engaging pro due When treatment of affirm the district court’s simplify inquiry analysis, cess we often process due claim. probative value of by asking whether outweighed by the C. Assistance Counsel at greatly

the evidence is Ineffective Sentencing ex prejudice to the accused. United States DeRobertis, F.2d rel. Palmer v. appeals Richardson the district court’s (7th Cir.1984) (citing United States denial of his claim that he received ineffec- (7th Cir.1970)). Pate, 426 F.2d during tive assistance of counsel the sen- In this case it is not. tencing phase. During sentencing First, agree phase, we with the Illinois Su- the State of Illinois introduced evi- 5, 1980, years’ criminal preme April that the evi- dence of worth violent activity extremely probative delinquency supervi- dence was of Richard- under prosecution strategy mitigation It sion. Richardson’s guilt. gave son’s innocence, ability protest evidence to tie addi- was to continue to his use ballistics eyewitness testimony attorney identification and his also called his mother and tional perpetrator of both the mother of his children to the stand to to Richardson as physical testify support In a case where evi- of his character. De- offenses. however, not, did introduce by, probative dence was hard to come fense counsel requirement. complete under these circumstances would defeat the round

277 allegedly totality of Richardson’s any evidence of the available mitigation evi- below-average troubled childhood or his trial, dence—both adduced at and the review, intelligence. On collateral Rich- evidence adduced in proceed- the [later] attorney’s perform- attacked ardson’s his ing’ ‘reweig[h] against the evidence —and ” ance. McCollum, in aggravation.’ Porter v. 30, 41, U.S. 175 L.Ed.2d 398 Supreme applied The Illinois (2009) (quoting Williams v. Taylor, 529 Strickland standard and found that Rich- 362, 397-98, U.S. prongs ardson failed both the test. (2000)). L.Ed.2d 389 Supreme The Illinois respect performance,

With to the court Court did. It concluded that a trial court found that trial counsel’s decision not to that sentenced Richardson to death pursue investigate any justify- or based evidence on the fact that he was a ing excusing or Richardson’s conduct was convicted mur- derer light proven reasonable in of the fact that Rich- and a recidivist with a violent testify ardson past intended as to his own criminal would not appreciably be less innocence; it might likely undermine Richard- to sentence him to death if it was credibility juxtapose son’s his “I did not also made aware that mentally he was testimony do it” with a full batch of “this is jurist troubled. Not every agree will why did it” respect he evidence. With conclusion, certainly but it was not an prejudice, the court reviewed Richardson’s unreasonable one. affirm We the district history, vast and violent criminal offered court’s treatment of this claim.

by in aggravation, the State and concluded childhood, social, that any evidence of or III. Conclusion difficulty mental would swayed not have above, For the reasons stated we AF- trial away court from a sentence of in part FIRM in part. REVERSE court, death. The applying district We reverse the district grant court’s standard, deferential AEDPA denied Rich- habeas relief based on Richardson’s de- request ardson’s for relief. We review de challenge prosecution’s faulted use novo. of peremptories; he has not shown cause Putting performance aside the to excuse his failure to contemporaneously test, prong of the Strickland we affirm the object. affirm the district court’s deni- denial of Richardson’s claim because a rea al petition of Richardson’s on evidentia- jurist conclude, sonable certainly could as ry/due process and ineffective assistance Court, did the Illinois grounds. summary The effect is that introduction of the evidence Richardson petition for a writ of habeas sought changed would not have the sen corpus is denied in full. tence handed down the trial court.9 Strickland, 2052; WOOD, Judge, Chief dissenting. Pierce, (7th 622 F.3d Griffin Cir.2010) (‘When sentence, Court held that challenging his Floyd a petitioner must show that but for Richardson cannot benefit from the coun errors, sel’s there is a probabil reasonable Court’s decision Batson v. ity that he Kentucky, would have received a different

sentence.”). (1986) because, engaging proba When L.Ed.2d 69 while Batson bility inquiry, a court only should “consider ‘the was decided while his case was on Ultimately, commuting due to the of his relief the trial unless court would have hand- sentence, years. Richardson would not be entitled to ed down a sentence to a term of peremptory challenges Richardson failed to show use of even appeal, direct case, contemporaneously doing to single for his failure so overturned cause Swain, at trial of object prosecution’s the use I affirm portion critical of would challenges. The state court peremptory the district court. In order to reach this by concluding that be- that result conclusion, reached I must consider both the effec- trial counsel did not cause Richardson’s appellate of counsel and the inter- tiveness object composition to the of the (futilely) whether the question twined Alabama, v. 380 U.S. jury under Swain if a barring challenges court’s rule (1965), 202, 824, 13 L.Ed.2d 759 85 S.Ct. challenge Swain was forfeited is consistent under Batson was waived. any argument jurisprudence of the with the United per- appellate counsel’s It reasoned Supreme States Court. inadequate could not be deemed

formance Washington, 466 U.S. under Strickland II (1984), 668, 2052, 80 L.Ed.2d 674 continued, any by appel- it because effort question At the heart of all this is the claim late counsel to raise the Batson whether Batson announced a new rule un doomed because of this would have been Clause, Equal Protection as it der supposed challenged waiver. Richardson peremptory to the chal applies use petition in a for a writ of this outcome Ross, lenges. See Reed corpus, which the district court habeas (1984). 82 L.Ed.2d 1 As the granted. majority today reverses Supreme Court noted Whorton v. Bockt ground on the that Rich- judgment, ing, 549 U.S. challenge ardson defaulted on his (2007), Teague L.Ed.2d 1 “[u]nder [v. prosecution’s peremptories use of and has Lane, necessary cause and demonstrated framework, an old ] L.Ed.2d prejudice that default and to overcome applies rule both on direct and collateral claim prevail on his of ineffective thus review, generally applica but a rule is new respectfully I dissent. appellate counsel. only ble to cases that are still on direct review.” 549 at 127 S.Ct. 1173. I that, If, or to the extent Batson announced nothing majority’s I have to add to the rule, appellate a new then Richardson’s summary facts underlying pro- of the performed deficiently failing counsel Indeed, posture cedural of the case. I raise the issue on direct review. More agree points: with them on two Richard- over, new, precisely because the rule is preserve any argument son failed to he Richardson cannot be said to have waived might have about the effectiveness of trial it point because he did not raise performance, procedural- counsel’s and he trial. ly argument defaulted his Batson because 274-75, concede, My colleagues ante at finding waiver the Illinois Court’s Swain, they that Batson overruled but adequate independent was an interpret statement Court’s I ground supporting its decision. Where respect that it did so to the “standard part on the company question whether per- abuse of proving unconstitutional prejudice he has shown the cause and challenges” differently from the emptory procedural is needed to overcome his de- Indeed, way I at 274-75. as fundamentally fault. do. See ante Because Batson en- interpreta- I I that their larged application Equal explain, of the Protec- believe racially discriminatory tion tion to reflect the Court’s Clause to fails in Batson. When the Bat- violation could proven, own discussion be but it added changed quantum proof son Court “the path another that also satisfy would necessary 'prima to make out a case proof: standard of proof discriminatory facie discrimination,” rejected ante use of peremptories “at the defendant’s evidentiary that a num- “the formulation” trial.” puts Whatever label one on this —a Swain, ber of lower courts had used after difference in proof,” “standard of as the thought under which those courts that it, Court called or a conception broader of “proof repeated striking of of a blacks over the underlying substantive as it can right, necessary number of cases was to establish also be plain characterized —it is that the Equal a violation of the Protection of part Swain that the disapproved Court 92-98, Clause.” in Batson was rejection the earlier case’s 1712. The Court then set forth “[t]he of a standard that insisted on a showing of showing necessary prima to establish a continuous systematic discrimination purposeful facie case of in discrimination and found inadequate a showing only of selection of the venire.” Id. at in discrimination the defendant’s own trial. said, In doing, S.Ct. 1712. so the Court recognized The Court itself that it was may prima “the defendant a establish facie extent, announcing a new rule to this albeit ways by ‘in other than case evidence of one that it later decided apply only should long-continued unexplained absence’ of on appeals, direct not on collateral review. ” many panels.’ members of his race ‘from point by This is reinforced a closer look at (Cassell Texas, Id. at the two cases. 282, 290, 94 L.Ed. Swain, Swain, man, petitioner a black (plurality opinion)). Specifical was indicted and convicted of in Swain, rápe an ly, “since the decision in this Court court; Alabama state he was sentenced to recognized may has that a defendant make death. Swain raised prima showing purposeful separate a facie of three chal- racial in by lenges jury process: discrimination selection of the selection venire the relying solely concerning on the facts process by its first concerned the which veni- selected; selection in his case.” un Id. Court re persons were the second fo- point only later, derscored the a few lines prosecutor’s cused use of preempto- stating principles that the articulated since ry challenges remaining to remove the six “support Swain our conclusion that persons jury him; black from the that tried may defendant prima establish a facie ease and the third systematic attacked the use purposeful of in discrimination selection of peremptory challenges by of Talladega petit jury solely on evidence concern County prosecutors to remove black venire ing prosecutor’s peremptory exercise in all persons supported cases. Swain challenges at the trial.” Id. at point defendant’s latter that literally evidence no added). 96, 106 1712 (emphasis persons black on a petit jury had served in county though since around even recognized,

As the Court Swain in said black males constituted 26% of those who no uncertain terms that the “standard” for trial, could serve. At proving equal the court denied his protection violation was jury met if motions to strike the trial venire and only not the defendant showed that prosecutor petit jury a to declare void the peremptory challenges used in chosen. racially the defendant’s own case in a These motions were based on the discriminatory way. ground agreed jury that the selection of the trial (as system-wide discrimination called resulted from invidious discrim- race-based Swain) way would be one Equal which a ination violation of the Protection juror partic- of a af- decide is whether Alabama Clause. The conviction, partial, the case then in fact nationality ular race or is firmed his States to the United group moved one but whether from different Court. likely less to be.... Hence veniremen always judged solely as individu- are not analy- Court’s Focusing on exercising per- purpose als for the (that claim the use second sis Swain’s challenges. they Rather are emptory all challenges to remove re- preemptory light of the limited knowl- challenged from the maining persons black them, may edge counsel has of which in viola- racially motivated tried him was affiliations, in the group include their Amendment), we tion of the Fourteenth context of the case to be tried. reject claim did not that the Court see Instead, inadequate evidence. because of 220-21, (emphases at add- Id. 85 S.Ct. 824 allega- if the that even thought the Court ed) (internal omitted). The sen- citations a true, failed to state petitioner were tions unam- passage tence that follows this is Fourteenth under the cognizable claim biguous and underscores the distinction reasoning is The Court’s Amendment. these between Swain and Batson: “With detail, in because setting out some worth mind, in cannot hold considerations we of that Bat- precise part the Swain this is striking Negroes particular in a that of years later. It is to overrule son was equal protection case is a denial the of of I reasoning that believe precise also the (emphasis laws.” Id. at 85 S.Ct. 824 majority has overlooked. Here what the added). held that The Court thus said: the Court jury proper- motion to strike the trial was peremptory nature of the The essential ly denied. it is one exercised with- challenge is that in a rule The Court Swain embraced stated, inquiry and out a reason without Equal under which the Protection Clause con- subject to the court’s being without in the use of does not reach discrimination challenges permit for cause trol. While at the retail level— peremptory challenges rejection jurors narrowly speci- on a is, in the defendant’s that the selection of fied, legally cognizable ba- provable jury. holding nothing That has to do own partiality, peremptory permits sis of with the order of it delineates what proof; rejection imagined partiali- for a real or will, not, and will violate the Constitution. ty easily designated or de- that is less Swain, Equal Under Protection Clause upon It is often exercised monstrable. only prosecutors is violated where “consis- and unaccounta- impressions the ‘sudden tently their systematically exercised apt we are to conceive prejudices ble prevent any Negroes to and all on strikes upon gestures looks and bare petit petit jury serving venires from on the another,’ juror’s upon a ‘habits and asso- jury itself.” Id. at 85 S.Ct. 824. This ciations,’ that feeling or ‘the upon case, go would have to on “in case after (a juror’s) indifference questioning bare circumstances, whatever the whatever the may provoke sometimes a resentment.’ the defendant or the crime and whoever frequently It is no less exercised on may victim be.” Id. The Swain Court did grounds normally thought irrelevant further, it pursue point because action, legal proceedings or official “readily apparent found that it was race, nationality, namely, religion, in not sufficient [was] the record this case people or affiliations of sum- occupation the rule has been to demonstrate jury duty. question For the moned system as it by peremptory must violated prosecutor a or defense counsel County.” operates Talladega Id. based on “allegations that in the case at hand all Negroes were removed from the they or that were removed because fundamentally Batson overruled and they Negroes.” were Id. at transformed this In portion of Swain. added). (emphasis recognizing stead of an equal protection ease, only violation if “case after whatever Now suppose that the same case arose peremptory system the circumstances” the after Batson. Defense counsel being racially discriminatory used operating with the benefit of the Batson way, that “a may Batson held defendant rule would know that her client had a prima showing claim, make a facie of purposeful cognizable because for the first time racial discrimination in selection ve- it would be permissible rely “solely nire relying solely on the facts concern the facts concerning [jury] selection in his ing its selection in his case.” 476 U.S. at case” 106 S.Ct. 1712. 95, 106 S.Ct. 1712. That is not an evidentiary difference; it is one. substantive

It is true that Batson went on to outline go present- how a defendant should about The Supreme Court’s decisions reinforce ing proof purposeful discrimination in point. Swain, this In direct contrast the use of peremptories. But the crucial Batson and the cases that follow find question proof must the demon- that racially discriminatory use of even —what changed between Swain and Bat- one peremptory challenge in a single case strate — son. A substantive claim—discrimination Equal See, violates the Protection Clause. in the selection of Louisiana, the defendant’s own e.g., Snyder 552 U.S. jury from being being (2008) outside to 128 S.Ct. 170 L.Ed.2d 175 —went (conviction within the reach of Equal Protection overturned on corpus habeas Clause. petition single because of discriminatory peremptory challenge); Miller-El v. Dret particular in a Suppose, case that arose ke, 231, 239, (that is, in 1980 after S%vain but before L.Ed.2d 196 expanded {Batson (or Batson), a criminal defendant more by holding Swain a that defendant could realistically lawyer) his realized that it support prima a by relying only case facie would possible not be in his area to demon- trial). totality on the of the facts his own systematic strate consistent and discrimi- nation in peremptory challenges, the use of Other of areas Fourteenth Amendment yet he believed that he could jurisprudence demonstrate illustrate the distinction be- purposeful racial discrimination the se- tween evidentiary methodology and crite- lection of the particular in his case. ria to state a claim. In Taylor, Parratt v. lawyer, Such a knowing that dictat- Swain 68 L.Ed.2d law, applicable (1981), ed the instance, would be forced to 420 for a prison state that conclude it would be frivolous to raise inmate’s hobby mail-order materials were equal protection an claim. If he tried prison lost when officials failed to follow so, do he would be met with the statement procedures the normal pack- mailed in Swain that the Court “cannot hold that ages. The inmate sued the officials under striking Negroes in a particular case is section 1983. The Court held equal a denial of protection of the laws.” that while the inmate deprived had been 380 U.S. at prose- law, 85 S.Ct. 824. The property under color of state he none- quick cutor would be point out that the theless did not state a claim for relief Swain Court recognize did not a claim alleged deprivation because the did not a con- Proving proving one instance and of the Due Process protections trigger the are two deprivation systematic pattern tinuous and This was because Clause. law, an changed a result of established things. not occur as different did 543, 101 Id. at procedure. acknowledge courts did not but the Illinois law that state emphasized fact, 1908. Parratt today majority perpetu- that depriva- for accidental provides procedures that This is an error that ates error. enough this was property, tions of demanding for feder- meets the standards generally, More it satisfy process. due corpus relief. The Illinois al habeas that not all proposition for the stands that counsel waived a Bat- court’s decision by state of- inflicted property deprivations by to raise a Swain argument failing son color of law violate the acting ficials under is argument amounts to decision that only those that Fourteenth Amendment — contrary to the law as announced Similarly, process. due also occur without of the At Supreme Court United States. Swain, that not all the rule was under least, appli- very it is unreasonable peremp- in the use of racial discrimination case, is the cation of that law. Since that the Fourteenth tory challenges violates it for the state court to was also error held, Constitution, Amendment. perform- appellate conclude that counsel’s only if that discrimination was violated constitutionally adequate in the ance was (and for the system-wide longstanding advantage failure to take of the face of his Court, years not even fifteen Swain intervening Batson deci- Supreme Court’s jury in Tal- African-Americans on a zero appeal Richardson’s direct sion while element). ladega County satisfied consideration in the Illinois courts. under point. Mo brings Monell out similar (I does not again stress this case Dep’t City of N.Y., Soc. Servs. nell any ap- retroactive present problem about 56 L.Ed.2d 611 plication of Batson to cases have be- (1978). There, Court held system, final in because come the state governments that local can be held liable case had not reached that Richardson’s deprivations only for constitutional when point. My position entirely consistent complaint governmental is about cus in with the Court’s decision Allen tom, practice, policy; or there is no re- Hardy, 106 S.Ct. § superior liability under 1983. spondeat (1986), L.Ed.2d 199 which held Bat- 691-92, 2018. The fact that Id. retroactively to apply son does not cases a plaintiff a cannot succeed on Monell review.) on collateral that does not deprivation claim for a arise reaffirmed in As the Court not an eviden- policy out of a or custom is — Alabama, -, Hinton v. U.S. bar; tiary it is a substantive restriction on (2014), L.Ed.2d 1 “counsel Swain, a Similarly, the claim. under duty investiga- make has reasonable plaintiff equal could not succeed on or to decision that tions make reasonable protection claim limited to discrimination particular investigations makes unneces- jury. in was not his own This because sary.” quoting 134 S.Ct. at from anything production about the burdens of Strickland, 690-91, 466 U.S. at saw proof; or was because Court in “failed to make 2052. Counsel Hinton peremptory challenges as an essential and cursory investigation of the state trial, even the of a criminal and it part traditional question. at 1089. a constitutional violation statute” believed that attorney’s concluded that only pervasive “[a]n arose if misuse could be ignorance point of a of law that is funda- proven. judgment, ease combined with his fail- but my colleagues, reject mental his like I point on that perform Although ure to basic research them. I arguments consider his example quintessential is a of unreason- performance about counsel’s at sentencing performance close, able under Strickland.” Id. to be I persuaded am that the defer- shows, As the record in our case that is ential by standard dictated 28 U.S.C. exactly performance 2254(d) the kind of Richard- § requires deny us to relief on appellate ap- son’s counsel rendered. It I ground. also find no reversible pears that he was unaware of the error in the district court’s decision that Batson, Court’s decision in and thus he arguments his based on the admission of argue made no effort to to the Illinois the “other crimes” evidence do not meet process courts that the selection granting standard for the writ. I own case was tainted ra- would therefore affirm the district court’s Batson, cial discrimination. After counsel judgment board, across the I and thus duty had no to shoulder the additional respectfully dissent. showing process

burden of that the in Illi-

nois, County, systematical- or Cook

ly consistently and flawed. did;

As the district I judge able would

find that Richardson received constitution-

ally ineffective assistance of counsel with

respect argument, to his Batson I grant would the writ on that basis. STATES, CENTRAL AND SOUTHEAST Hardy, Allen v. the Supreme Court waxed SOUTHWEST AREAS HEALTH AND eloquent prosecutors about how FUND, WELFARE and Arthur H. judges “compelling” had reliance interests Bunte, Jr., Trustee, Plaintiffs-Appel Swain; why on that is it held that Batson lees, apply retroactively would not to convic- tions that became final before Batson was

announced. 478 106 S.Ct. Beverly Lashgari, LEWIS David T. I note as well that there is some- Defendants-Appellants. seriously thing out of kilter about the no- No. 13-2214. tion that prosecutors the reliance of “compelling,” Swain was but the reli- Appeals, United States Court of ance of defense counsel on Swain is of no Seventh Circuit.

moment. If defense counsel should have Argued Feb. 2014. Batson, anticipated only then it fair seems to think prosecutors should have done Decided March so, fact, too. recognized, as Allen Bat-

son was a past, break with the but a break apply only

that would to cases on direct

review, not to cases on collateral review.

That is what happened should have here.

Ill

Richardson has also presented other ar-

guments in support of the district court’s

Case Details

Case Name: Floyd Richardson v. Michael Lemke

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 11, 2014

Citation: 745 F.3d 258

Docket Number: 12-1619, 12-1747

Court Abbreviation: 7th Cir.