Franchie FARMER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 15-1483
United States Court of Appeals, Seventh Circuit.
Argued September 19, 2016; Decided August 15, 2017
Rehearing and Rehearing En Banc Denied October 16, 2017*
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* Circuit Judge Posner retired on September 2, 2017, and did not participate in the consideration of this petition for rehearing.
The district court‘s careful opinion goes into more detail about these and other considerations that demonstrate why Hollins was not entitled to compensation for her time in the salon. See Hollins v. Regency Corp., 144 F.Supp.3d 990 (N.D. Ill. 2015). These cases normally turn on the facts of the particular relationship and program, and so we should not be understood as making a one-size-fits-all decision about programs that include practical training, or internships, or tasks that appear to go beyond the boundaries of a program. On the present record, however, we conclude that the district court correctly granted summary judgment for Regency Corporation, and we therefore AFFIRM its judgment.
Thomas E. Leggans, Attorney, Office of the United States Attorney, Benton, IL, for Respondent-Appellee.
Before POSNER, WILLIAMS, and SYKES, Circuit Judges.
SYKES, Circuit Judge.
In 2012 a jury convicted Franchie Farmer of armed bank robbery, see
In 2014 the Supreme Court held that a
Farmer did challenge the instruction, albeit obliquely, in a motion under
Farmer‘s argument has shifted somewhat on appeal. She now raises the Rosemond issue directly rather than through the prism of trial counsel‘s ineffectiveness. Farmer procedurally defaulted this claim and must establish cause and actual prejudice to excuse the default. She hasn‘t done so. The government presented plenty of evidence that Farmer had advance knowledge that a gun would be used in the robbery, so the Rosemond error was not grave enough to cause actual prejudice. We affirm.
I. Background
In 2008 two people robbed a bank at gunpoint in the small town of Tamms in southern Illinois, taking more than $14,000. During the robbery, a bank customer managed to escape the premises and hide a short distance away. The customer saw the two robbers leave the bank and flee in the back of a dark SUV. The witness told police that the two front seats of the SUV were already occupied when the robbers jumped in, but he didn‘t get a good look at either person. In their haste to leave the bank after the robbery, one of the robbers dropped the demand note. It read: “This is a robbery, I have a gun, don‘t cause a scene and no one will get hurt, I do have a gun!!!”
It did not take long for police to catch the two bank robbers. After seeing surveillance footage on the local news, an ex-girlfriend identified Richard Anderson as one of the robbers; his fingerprints on the demand note confirmed his involvement. A couple of weeks later, a lead from a pawnshop robbery across the river in Missouri pointed to Holli Wrice as the other robber. Police also identified the getaway car as a black 2002 Toyota Sequoia. An officer spotted the car in Tamms and learned that it was registered to Franchie Farmer, who admitted that she had loaned the Sequoia and her cell phone to Wrice on the day of the robbery but claimed that she didn‘t know anything about Wrice‘s activities that day.
Farmer told the police that at the time of the robbery, she had been working at her job as an in-home caretaker for a mentally disabled woman. As police looked into Farmer‘s story, however, additional questions arose. Cell-phone records indicated that a number of calls were placed between Farmer‘s cell phone and Wrice‘s cell phone just before, during, and after the bank robbery. During the same period,
Farmer‘s account was also directly contradicted by Wrice and Anderson, who agreed to cooperate with the government in its case against Farmer after being charged and negotiating plea deals. A grand jury indicted Farmer on one count of armed bank robbery in violation of
Wrice and Anderson testified at trial that Farmer was the getaway driver for the robbery and that she brought along the mentally disabled woman who was in her charge—presumably the front-seat passenger espied by the bank customer. According to their testimony, Farmer met them behind a mall on the day of the robbery and they drove in separate cars to a rural plot of land Farmer owned outside of Tamms. When they arrived, Farmer wrote the demand note. Anderson and Wrice then got into the Sequoia, and they drove together to the bank. After the robbery Farmer drove everyone back to the rural property where they split up and went their separate ways.
Wrice testified that Farmer had been involved in planning the robbery for several months and that the two had discussed using guns on many occasions. Anderson was unsure whether Farmer knew that he and Wrice were going to brandish guns in the bank, but Wrice testified that Anderson was a late addition to the team and hadn‘t been present at the earlier planning sessions. And of course, as we‘ve noted, both Wrice and Anderson testified that Farmer wrote the demand note, which twice mentioned the presence of a gun. Wrice described the discussion that she and Farmer had while Farmer prepared the note:
Should we just display a gun, or should we show them the gun, or let‘s not display the gun, or let‘s put on here that you do have a gun, cooperate, you know, nobody gets hurt. And so we just wanted to—we discussed it, just leaving it kind of simple but to the point, but let them know we do have a gun.
A government expert also testified that the handwriting on the note matched Farmer‘s.
The jury convicted Farmer on both counts, and the district judge imposed a sentence of 141 months in prison. On direct appeal Farmer raised two issues: (1) a claim of juror impropriety and (2) a challenge to the sufficiency of the evidence. We affirmed the convictions. Farmer, 717 F.3d at 566.
In 2014 the Supreme Court decided Rosemond v. United States, — U.S. —, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), which clarified the government‘s burden to convict a defendant under
Shortly after Rosemond was decided, Farmer moved for collateral relief under
The judge denied the motion. Pointing to several pieces of evidence establishing that Farmer knew in advance that a gun would be used—Wrice‘s testimony, the demand note, the handwriting expert‘s testimony—the judge concluded that counsel‘s failure to object to the
II. Discussion
We review the denial of a
Our first question is whether the rule established by Rosemond applies retroactively on collateral review. We‘ve already held that it does. Montana v. Cross, 829 F.3d 775, 783-84 (7th Cir. 2016). To recap our reasoning: A decision of the Supreme Court announcing a new rule of criminal law applies to “convictions that are already final ... only in limited circumstances.” Schriro v. Summerlin, 542 U.S. 348, 351 (2004). Generally speaking, new substantive rules apply retroactively, but new procedural rules do not. Id. at 351-52. “A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Id. at 353; see also Crayton v. United States, 799 F.3d 623, 625 (7th Cir. 2015) (decisions are retroactive if they hold “that the law does not (or cannot constitutionally) make particular conduct criminal“).
Rosemond held that to convict a defendant of a
Before Rosemond, a defendant in this circuit could be convicted of violating
In other words, pre-Rosemond the government did not have to prove that the defendant learned about the gun with enough time to try to change his confederate‘s plan or to remove himself from the venture altogether. Rather, accomplice liability was possible even if the defendant learned of a coconspirator‘s use of the gun while the crime was underway—as long as the defendant continued to participate after learning about the gun. See Taylor, 226 F.3d at 597. Rosemond limits liability under the latter circumstances:
[W]hen an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun.
By requiring proof of the defendant‘s advance knowledge, Rosemond “alter[ed] the range of conduct ... that the law punishes.” Schriro, 542 U.S. at 353. Rosemond thus established a new substantive rule that is retroactive to cases on collateral review. See Montana, 829 F.3d at 783-84 (explaining that Rosemond addressed the requirements for criminal liability under
In a shift from her approach in the district court, Farmer now raises the Rosemond issue directly—as a challenge to the erroneous
To establish actual prejudice, Farmer must “shoulder the burden of showing[] not merely that the errors at [her] trial created a possibility of prejudice, but that they worked to [her] actual and substantial disadvantage, infecting [her] entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170. She has not carried this burden. The government introduced multiple pieces of evidence establishing that Farmer knew well in advance that her coconspirators would be armed during the robbery. Wrice testified that before the robbery she and Farmer discussed this plan multiple times. Wrice and Anderson both testified that Farmer wrote the demand note, which twice referred to a gun. Finally, a government expert testified that the handwriting on the demand note matched Farmer‘s own.
In short, the trial record contains ample evidence of Farmer‘s foreknowledge that guns would be used in the robbery. Accordingly, the instructional error did not work to her actual and substantial disadvantage. Put slightly differently, we are not “in grave doubt as to the harmlessness of the error.” Mankarious, 282 F.3d at 944. The procedural default is not excused.
AFFIRMED.