Gary Burris v. Al C. Parke

CUDAHY, Before EASTERBROOK and collateral attack. After a series of skir- MANION, Judges. mishes, Circuit the court entered unanimous order that, matters, apart from formal reads in full:

EASTERBROOK, Judge. Circuit now Burris claims his counsel was ineffec- opinions by appellate Six this court —three tive in connection sentencing, pri- with his by Supreme and three marily because certain facts pre- were not lay history capital out the of this Indiana — sented as of strategy. his Parke, case. Burris v. 95 F.3d 465 He asserts these facts should be consid- Parke, Cir.1996) (en banc); Burris v. post-conviction ered a successive pro- (7th Cir.1995); Farley, Burris v. ceeding. The Court has reviewed these (7th Cir.1995); State, Burris v. claims and the materials sup- submitted in State, (Ind.1994); Burris v. N.E.2d 961 port Though pled of them. as an ineffec- State, (Ind.1990); Burris v. N.E.2d 1067 claim, tive assistance Burris’s contentions (Ind.1984). told, Briefly N.E.2d the tale essentially are an assault on adequacy so far is this. Burris was convicted of mur- mitigating of the evidence submitted on his der and sentenced to death. direct On behalf, already an issue we have examined peal Supreme of Court Indiana affirmed. twice. We find that these claims are ei- Burris filed a collateral attack in Indiana. judicata by ther the doctrine of res barred highest eventually That state’s conclud- otherwise barred the Indiana Rules lawyer represented ed that Burris’s had not of Procedure for Post-Conviction Relief. enough sentencing him well and ordered a trial, punishment although new the court ad- The Court determines that “pleadings adjudication hered to its conclusion that the conclusively show that guilt was sound. Counsel at the second entitled to no relief.” Ind. P-C.R. 1 sentencing persuaded juror at least one 12(b). § Accordingly, the Court declines support capital punishment —but filing to authorize peti- of a successive sentencing jury advisory, Indiana a see post-conviction tion for relief. Farley, Schiro v. judge so the dis- began Burris then a second federal collateral jurors missed the and conducted an addition- attack, which the district court dismissed as hearing, al after which she sentenced Burris panel abuse the writ. A of this court to death. affirmed, observing that Burris had deliber- ately sentencing excluded issues from his pursuing appellate While remedies within petition. first pending While the case Indiana, petition Burris filed a under 28 banc, Congress before the court en enacted § 2254 limited to the determination of the Antiterrorism and Effective Death Penal- guilt. petition, The district court denied this (AEDPA), ty Act replaced the doctrine Meanwhile, Supreme and we affirmed. of abuse of the writ with more restrictive Court of Indiana affirmed the second death 2244(b). § rule. See 28 U.S.C. After anoth- sentence and Burris filed new collateral argument, er round of briefs and court, oral this attack in arguing state that he had court held that petition Burris’s current received ineffective assistance of counsel in sequential” meaning “second or within penalty phase. Although the second this was both old and new federal challenge the initial collateral doctrines even to the second sentence, though challenge it is his first petition it was a federal to the “successive” Nonetheless, practice given second death sentence. his we collateral attack on held, first, 2244(b) guilt the determination of new does not the first death because, requires prisoners apply sentence. Indiana selecting to ob- Burris when is- approval Supreme petition, may tain the sues for Court for his first have relied standards; and, petitions, second, successive see Rule 1 12 of on the older Remedies, attorneys Rules for Post-Conviction representing Indiana had forfeited judge so the state’s any right trial declined to consider to the benefits those standards petition. applied acquiescing to the in Burris’s efforts to divide prosecute arguments Indiana for leave to multiple petitions. did not build a factual record remand, 27. Burris district court denied On court; things, saw It con F.Supp. 1310 petition. 948 satisfy 2254(e), unless Burris could the was conclusive added that 28 U.S.C. cluded 2254(e)(2). light further conditions in One AEDPA, claims in to Burris’s (7th Cir.1996) underlying claim is that “the facts the these F.3d 856 Murphy, 96 Lindh v. - U.S.-, to clear and (en 117 would be sufficient establish banc), granted, cert. for constitution- convincing evidence 726, which 136 L.Ed.2d S.Ct. error, have al no reasonable factfinder would by the AEDPA changes made holds that underlying applicant guilty found the litigation petition unless the govern pending lan- offense.” have held that identical on the for We reliance can show detrimental er 2244(b)(2)(B)(ii) 2244(b). unambigu- guage §in refers law, concerning § Burris did mer Accord, ously to the offense of conviction and does Pitsonbar F.Supp. at 1319-22. concerning the sen- permit proceedings 1298-99 ger Gramley, States, 2254(e)(1), 108 F.3d 119 Cir.1996). says Hope tence. v. United which Section (7th Cir.1997). findings It follows that Burris the must treat how federal courts not obtain a under the standards courts, Indiana did is irrelevant because 2254(e)(2). Acting of Burris’s concerning on the basis findings not make of fact 2254(e)(2), evidentiary allegations, by an hear- untested contentions. Section ing, the court concluded that he received holding eviden- governs of federal constitutionally legal assistance. important. effective potentially more tiary hearings, is F.Supp. at 1327-43. The court also re- It reads: jected that have some additional contentions develop to applicant If has failed appeal. Id. at 1343-55. not been renewed on a claim State court factual basis not hold an proceedings, the court shall Pitsonbarger question reserves the the claim unless the miscarriage-of-justice language whether the that— applicant shows 2254(e)(2)(B), §in restricted as it is to inno offense”, underlying applies cence of “the (A) on— the claim relies predated proceedings in state court when law, (i) rule of constitutional a new AEDPA. 103 F.3d at 1306-07. Avoidance is to cases on collateral made retroactive today, equally appropriate for two reasons. Court, that review 2254(e)(2) First, § does not matter to this unavailable; or previously case; second, evidentiary hearing an unnecessary the former law. have been under (ii) predicate that could not a factual 2254(e)(2) does not matter because it Section previously discovered have been applicant to when “the has failed diligence; of due through the exercise develop factual basis of a claim State proceedings”. implies omis court “Failure” (B) underlying the claim would facts not to introduce evidence sion —a decision to establish clear be sufficient opportunity, when there was an or a decision that but for consti- convincing evidence opportunity. an The AEDPA not to seek error, factfinder no reasonable tutional law, from former see v. T- differs applicant guilty of would have found mayo-Reyes, 504 underlying offense. (1992), by asking L.Ed.2d 318 whether prac a Burris would that omission is default under judge wrote that The district prevent the in the sense that it would tice an received AEDPA, obtaining hearing in state prisoner predating the law 2254(e)(2) 2254(e)(2) is a rule of federal 1322-23, precludes court. Section but that law, independent-and-ade from the develop liberated Burris “failed because Kee quate-state-grounds doctrine on which court” —a claim in State factual basis of a - Singletary, ney Lambrix v. to refer to rests. See phrase understood U.S.-,-, record, 1522- no matter shortcomings To be attribut- F.Supp. at 1324- responsible. who was arguments requires to a “failure” under federal law the None of these able further deficiency evidentiary exploration; in the record must reflect some- none calls counsel’s thing performance question. did or omitted. Like the Morton, circuit, Love v. third see Start with the first. Burris wanted the (3d Cir.1997), we think the word court appoint district strict-liability reading, “fail” cannot bear a investigate him opine at a federal disregard under which a federal court would evidentiary hearing whether he suffers from shortcomings the reason for the of the rec- injury a brain that contributed to his vicious did, If it then a state could ord. insulate its appointment conduct. possible Such if decisions from collateral attack in federal expert reasonably services “are neces by refusing grant evidentiary hear- sary representation for the of the defendant”. 2254(e) ings Nothing in its own courts. in 848(q)(9), applied implies or the of the AEDPA that rest states § 848(q)(4)(B) capital cases in which relief But, may manipulate things in this manner. sought 2254. To establish that a follow, for the reasons that we think that a “reasonably necessary,” service is the defen unnecessary federal preliminary dant showing, must make a even under the standard of v. Townsend which Burris has not done. His current Sain, S.Ct. lawyers suspect accurately, believe —more (1963), which overruled in lawyers that his suspect former should have 2254(e) supersedes. and which ed—that a bullet to the head in the 1970s damaged Burris’s brain. All that the record experienced lawyers Three criminal shows, however, complains is that Burris represented penalty Burris at the second headaches, plague many people which with They proceeding. presented substantial evi arrest, damage. out brain After his Burris mitigation, attempting dence in to establish psychiatrists. was examined two Their first that Burris’s brutal conduct report gunshot describes the wound as childhood, been to a hard attributable and “superficial” and concludes that Burris dis second that Burris has while in reformed plays “no indications of mental illness or prison. support proposition, To the first deficiency”. penalty pro Before the second introduced evidence that counsel Burris was ceeding, lawyers arranged Burris’s for anoth infant, grew up abandoned as an in brutal examination; psychologist er mental a inter surroundings, parents did not know his or viewed and examined Burris in 1991 and age, pre-teen even his and a served while signs that concluded no of brain whorehouse, shows “gofer” falling a in a a dysfunction. Counsel meanwhile criminal culture that dominated To his life. alert, testify found witnesses that Burris is proposition, pro buttress the second counsel jail intelligent, good a conversationalist and prison guards duced and caseworkers who lawyer, house and so on. None of the evi bright, good testified that Burris is conver suggested dence available at the time sationalist, provider legal and a assistance examinations, utility of further mental prisoners. to other evidence incompe counsel therefore cannot be called persuaded juror. at least one tent under the standards of v. Strickland lawyers Burris’s current insist that 668, 104 Washington, 466 U.S. defense fell below mini- the constitutional L.Ed.2d 674 first, mum for three reasons: counsel did not investigate possibility might up that Burris suffers What a turn second, irrelevant; damage; today from brain fact that counsel did not so is the introducing in psychologist succeed evidence that who examined Burris in 1991 (by investigate potential blamed himself the death heart at- now wants to effects tack) responsi- performance of the woman who was most of the bullet. The of counsel is third, upbringing; ble for his at the time or counsel did not assessed what was known argue appeal disagreement through diligent on that would have been discovered among jurors mitigating pursuit inquiry is a circum- at the of lines of reasonable line, time; obliged given stance the to consider. this was not such relevant circumstance ending in clean bills sideration exams multiple mental impose lay [death] it to decline to wit- could cause and the fact that health of mental problems. circumstances about penalty”, mental deal with no likewise detected nesses (7th Cir.1991), crime, legal Aiken, and the not with F.2d 850 accused Brewer relies, making process. kettle of filed a careful brief is a different Counsel on which Burris recog- legal arguments, the Su- lay recognized observers fish. Both medical seriously. In severely impaired, preme of Indiana took that Brewer was nized ineffective, subject put Burris’s contending this is explore the counsel did not lawyers lawyers must have in mind a model essentially no defense. more, advocacy fill in which counsel appellate counsel investigate. What is did theory theory hope brain-damage every possible briefs with developed not have Barnes, undercutting lightning the evidence will strike. Jones risk of without 3308, prison, and without Burris’s turnaround jury would Constitution does not possibility that a holds opening up the approach, As which weakens an require undeterrable. such an that Burris was conclude Gramley, appellate presentation. No more need be we observed Stewart (7th Cir.1996), jurors may not be im- said. the cause to know pressed with the idea that consider- Burris has received abundant it; they may con- is to excuse of viciousness and federal courts. He ation from both state that, behavior when violent clude instead many competent of has had the aid power of pears to be outside the defendant’s litigation spans diligent lawyers during control, appropriate capital punishment judge, Like the district almost two decades. potential avoided this incapacitate. Counsel imposed that the sentence was we conclude well in excess performance was pitfall; their require- in accord with all constitutional floor. the constitutional of ments. that counsel Next comes the contention AFFIRMED. jury that Burris blames to inform the failed who the of the woman himself for the death CUDAHY, dissenting in Judge, Circuit primary “his lawyers to as refer part concurring part. upbringing does not caregiver” although his — is not whether The narrow issue before us “care”. Coun- normal definition of meet the assistance of coun- Burris suffered ineffective by asking to adduce this information sel tried trial, sentencing phase of his sel at the him Burris had told psychologist what the evidentiary to an hear- whether he is entitled subject. question was met the The about ing courts make de- before the federal objection, sus- hearsay which was with a key majority says no. The The termination. have done? could counsel tained. What more that, pre-AEDPA law that point is under the stand, only reason- Placing Burris on the Judge majority correctly applicable, finds alternative, door opened able would hearing mandatory. Sharp yes said personality exploration aspects of his to- —a sensibly history that counsel and criminal Burris a Judge Sharp nevertheless denied to avoid. wanted hearing, based on his conclusion 2254(e)(2) governed. § lawyers former AEDPA’s U.S.C. Finally, Burris blames his rul- majority decided that the latter appeal to the The has omitting, the brief on for agree. Indiana, ing wrong; in this I Section argument that Supreme an Court 2254(e)(2) prisoners to state inability a verdict was a jury’s to reach fault, who, bring through did not their own should have mitigating factor to the attention of the constitutional claim ease law in Indiana considered. No 2254(d) now, does supports the state courts. jurisdiction, then or other noted, either, for, Sharp Judge as McCleskey apply argument. such as Cases Supreme of Indiana 279, 306, “decision Kemp, 107 S.Ct. a careful and well-rea- 1774-75, say be considered cannot opinion requiring deference under con- soned that states “cannot limit the senteneer’s 2254(d).” Parke, significance and its as a mitigating Burris v. factor. (N.D.Ind.1996). Any 1310, 1321 analyze apparent efforts source brain on the record are then for Burris’s hear- What completely speculative. I particularly find ing? Sharp gave the answer under that, simplistic the since view Burris’s law- mistakenly believed to be fore- law that yers portrayed bright as good him and a evidentiary hearing a federal closed—that conversationalist, they would be disabled be mandated: would explore injury. his reality brain The is that up has held that The Seventh Circuit argument none at oral advocates holding pro state court to failure say anything specific about the injury, brain with a full and fair vide hear although none of them denied that he had state court ing reward that for its suffered one. process. Bracy of due denial See Gram (7th Cir.), petition ley, Quite correctly, majority holds cert, 1996). case, (Sept. In this 2254(e)(2) apply to does not claim filed court finds courts of the State because the Indiana courts never accorded provide failed to with a him opportunity an in the state courts and fair full ineffective as point. introduce evidence on was There Thus, pre- sistance claims. no prisoner. “failure” on Townsend AEDPA standards of and Kee- Since Burris fault ney, because the 2254(e)(2) applicable, is not the crucial petition PCR Indiana dismissed Burris’s question applies. is what law allowing discovery, without successive denigrates authority of Townsend holding or address Sain, 9 L.Ed.2d the merits ing of Burris’s ineffective assis (1963), by observing 770 that it was “over claims tance which were before the court in part” by Keeney ruled v. Tamayo-Reyes, instance, appear in the first it would that 1, 1715, 504 U.S. 112 S.Ct. would be mandated to hold the 2254(e). by § “supersede!)!]” hearing. requested evidentiary Maj. Op. majority’s at 259. This is the most majority serious error. What does (footnote (emphasis supplied) Id. at 1323 point out is Townsend that omitted). The Indiana had courts never ade- here, application overruled has no claims, quately heard Burris’s and so Town- because at Spreit Burris was not fault. See obliged the court to hear send district those Peters, (7th 1435, zer v. 1456 n. 9 itself. Id.1 claims Cir.1997). reason, For same holds, Since, majority pre-AED- as the 2254(e)(2), provision AEDPA that applies, Judge I agree Sharp’s PA law with arguably governs evidentiary hearings, even that an conclusion is re- bearing majority has no here —as itself quired. One debate the merits of the Hence, concludes. it is hard to see how ineffective assistance claim on the basis of superseded. Townsend is When the state record, present do so highly but to courts have to hear the claim a refused conjectural futility. and an in exercise As prisoner, state Townsend still binds us noted, adequacy has this court often ensure that receives is a crucial in record consideration evalu- in federal court. The reason is the same ating ineffective claims. assistance Unit- Cf. today years thirty-three ago: as it was Draves, ed States Cir.1997); McKenzie, prisoners United States State entitled to on are relief (7th Cir.1996). corpus only upon proving F.3d & n. Here we federal habeas talking injury about are a brain that their detention violates the fundamen- bullet Judge Sharp separate grounds appears 1. cited two it the state of fact reason trier Townsend claims: dictated a for Burris’s applicant did not afford the a full and fair habeas “(3) fact-finding procedure em- Townsend, 293, 313, hearing.” 372 U.S. ployed adequate the state court was 745, 757, "(6) hearing,” a full afford and fair and that person, safeguarded

tal liberties VENTURE, Federal Consti- against action LOUIS JOINT ST. NORTH so ob- Simply partnership, because detention tution. an Ohio Plaintiff- intolerable, opportunity Appellee, tained is redress, opportuni- presupposes the heard, argue and to ty to be evidence, totally be foreclosed. must never ENTERPRISES, INC., L an Illinois P & rare, typical, not the case which It is the Cheryl corporation, Newman, L. Patrick upon turn the resolu- claims constitutional Newman, Gall, Lucinda Leonard factual Thus a issues. tion of contested Gall, Defendants-Appellants. hearing power

narrow view of Congress’ specific aim in No. 96-3388. totally subvert 5, 1867, February passing the Act Appeals, United States Court affording prisoners forum in the Circuit. Seventh for the determination of federal trial courts the Con- claims of detention violation of Argued April 1997. stitution. Decided June Toumsend, at 756- added) (citation omitted). (emphasis Sharp courts Judge ruled Burris with a full and provide

have “failed his ineffective assistance

fair Burris, at 1323. As

claims.”2 realized, Sharp Townsend therefore district court an evi-

mandates hold

dentiary hearing. The reverses

this, fragmentary law based on unsound

facts. respectfully

I and would vacate the dissent hearing.

judgment and for remand damage. re- received assis- raises related claims. His Whether he ineffective several quest appointment attorney for tance of when his counsel failed go hand with the would hand in evidentiary ruling peal an adverse and erroneous injury. neuropsycholo- brain ripe exploration hearing, also be at a for necessary gist’s participation in the might sentencing judge’s concep- erroneous meaningful, and thus make tion of evidence. 848(q)(9). requirements of 21 U.S.C. meet the Finally, in the face of affidavits from Further, psychologist who examined Burris attorney disavowing any particular reason at all time, incorrectly, that he in 1991 believed at the failing investigate jury for complete possession medical was in of Burris’s alleged neurological impair- evidence of Burris's ment, among missing file. He not—and the files inappropriate to en- it is reports were the the brain at issue. (and attorney’s conjecture praise) attorney gage We thus cannot know whether Burris's "strategic" reasonably investigated should the brain decisions.

Case Details

Case Name: Gary Burris v. Al C. Parke

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 13, 1997

Citation: 116 F.3d 256

Docket Number: 97-1218

Court Abbreviation: 7th Cir.