Isaiah BRADY, Petitioner-Appellant, v. Randy PFISTER, Acting Warden, Pontiac Correctional Center, Respondent-Appellee.
No. 11-3365.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 17, 2012. Decided April 1, 2013.
WOOD, Circuit Judge.
The district court also seems to have relied on the notion that the Officers were the only individuals singled out for investigation. We note that even if this were true, the fact that the Officers were implicated in the escape by another guard might account for this disparity. However, other individuals were reprimanded. Thomas Snooks, who is a defendant in this case, was suspended for five days because he called Remus on his cellular phone following the escape, and Captain Earnest Wright was disciplined for failing to prepare proper written entries into the watch commander log.
Due to the fact that the authorities had probable cause to investigate the Officers, we are less concerned about other possible motivations for their treatment. While Kaufmann and others may have expressed negative opinions regarding the Officers’ support of Remus, we find it objectively reasonable to investigate officers implicated in a multi-felon jailbreak.
We REVERSE the judgment of the district court.
Garson Fischer (argued), Attorney, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.
Before EASTERBROOK, Chief Judge, and BAUER and WOOD, Circuit Judges.
WOOD, Circuit Judge.
Isaiah Brady was convicted in Illinois state court of first-degree murder for the shooting death of Andrea McDaniel, his girlfriend and the mother of his eighteen-month-old daughter. Brady no longer disputes that he shot McDaniel, though he claims it was an accident and has proffered four witnesses to corroborate his story. None of them testified at trial, because Brady‘s lawyer did not call them. This amounted to constitutionally ineffective assistance of counsel, in Brady‘s view. The state courts were not persuaded that this omission was serious enough to undermine his conviction, and the district court held that their decision was not so unreasonable that federal relief was possible. Even assuming that the performance of Brady‘s lawyer fell below constitutional standards, we conclude that Brady‘s inability to show prejudice dooms his petition under
A
McDaniel arrived at the emergency room of Provident Hospital in Chicago in the early hours of May 10, 2001, with a gunshot wound to the head. She died two days later. Her death was ruled a homicide, and Brady quickly became a suspect. After several weeks on the run, Brady was arrested in Los Angeles, California, on June 6, 2001, extradited to Illinois, and charged with murder.
Brady was convicted in a bench trial in November 2002. The prosecution‘s theory was that Brady, who had a history of abusing McDaniel, shot her in the course of an argument that broke out when she attempted to leave him. To prove its case, the state presented witnesses to testify about: (1) Brady‘s history of domestic violence toward McDaniel; (2) Brady‘s actions before and after the shooting; (3) physical evidence found in Brady and McDaniel‘s apartment; and (4) Brady‘s flight to California.
To establish the first point, the state presented several police officers who had responded to domestic disturbance calls at Brady and McDaniel‘s apartment in the past. On some occasions, the officers had discovered serious problems. For example, about 11 months before the shooting, officers had to force their way into the apartment as they heard McDaniel screaming for help. Once inside, they observed McDaniel with bruises on her arm and face; she told them that these were the results of Brady‘s having hit her with a broomstick. After he was placed under arrest and informed of his rights, Brady told the officers that he beat McDaniel because she stayed out at night and did not take care of their children.
Corey Hall, a close friend of McDaniel who lived across the courtyard from Brady and McDaniel‘s apartment, also provided information about Brady‘s actions before the shooting. On the night of May 9, 2001, Hall and some friends, including Brady and McDaniel, were sitting on Hall‘s back porch. Hall testified that Brady had with him a .38-caliber revolver, which Hall saw when it fell out of Brady‘s pants. Later that evening, Hall joined Brady and McDaniel for tacos in their apartment; he left shortly after midnight. Approximately one hour and 10 minutes later, Hall was on his way to a nearby store when he saw Brady walking in the direction of Brady‘s own apartment. Hall recalled that Brady seemed nervous.
Three witnesses—Antoinette Dill, Gail Gray, and Wanda Riley—testified about Brady‘s actions in the wake of the shooting. Dill, who lived on the floor below Brady and McDaniel, watched as Brady removed McDaniel from the apartment. At about 1:30 a.m., Dill heard Brady and another man (who turned out to be Brady‘s stepfather) speaking near her window. According to Dill, the other man said “she‘s dead,” to which Brady responded, “she‘s not dead yet, help me carry her.” Dill then heard a woman screaming for someone to call an ambulance and saying “don‘t move her.” As Dill left her apartment to offer help, she saw Brady and another man placing McDaniel in the back seat of a black car. A woman (Brady‘s mother) was sitting in the car and asked Dill to call 911, but Brady responded that there was no time and that they needed to drive McDaniel to the hospital.
Gray, an emergency room nurse at Provident Hospital, was on duty when Brady drove up with McDaniel around 1:35 a.m. Brady identified himself as McDaniel‘s boyfriend. After taking McDaniel to the resuscitation room, Gray spoke briefly with Brady about McDaniel‘s medical history. About 10 to 15 minutes after Gray returned to the resuscitation room, a police
Riley, Brady‘s grandmother, lived around the corner from Provident Hospital. Some time after 1:30 a.m., Brady showed up at her apartment and asked to borrow her car. He told Riley that McDaniel had been shot and that he needed to pick up his daughter, who was apparently still back at the apartment. Riley needed her car for work the following day, and so she refused Brady‘s request. Brady grabbed her car keys anyway and tried to leave, taking along some clothes that belonged to Riley‘s son. Riley followed him and recovered the keys. Brady then ran off in the direction of his apartment, leaving the clothes behind. Five minutes later, Brady‘s mother and stepfather arrived at Riley‘s home with Brady‘s daughter.
Several witnesses described the physical evidence. Most importantly for our purposes, Officer Joseph Dunigan testified about the chaotic condition of McDaniel and Brady‘s apartment immediately following the shooting. There was blood on the rear stairs as well as in the kitchen; bloody towels and clothing lay on the kitchen floor. The master bedroom was a mess: the door was marked and damaged near the handle; clothes and a bloody mattress were strewn about; a television was on the floor; and there was blood on the wall. Dunigan recovered two .38-caliber cartridges from the bedroom.
The final support for the state‘s case came from Brady‘s flight to California. Makeeta Burke testified that she met Brady in a Los Angeles bar. Brady told Burke that his name was Rico Holt, that he was from New York, and that he was in California to care for his grandfather. He volunteered that he was on the run from the FBI because some of his friends were drug dealers. Shortly before his arrest, Brady told Burke that he had accidentally killed his daughter‘s mother when his gun unexpectedly fired as he took it off a shelf. Brady said that he fled to California because the police had come to his home on other occasions when he and McDaniel were arguing. He asserted that he was planning to turn himself in as soon as his family was able to hire a lawyer.
After he was arrested, Brady continued for a time to maintain that his name was Rico Holt. The Chicago police officer who handled Brady‘s extradition from California testified that Brady identified himself as Holt when they first spoke in the Los Angeles County Jail.
Brady‘s trial counsel presented only one defense witness: Brady‘s grandfather, Claude Sanders. Sanders testified that he advised Brady to leave town after the shooting because he had heard that Brady‘s life was in danger.
The court found Brady guilty of first-degree murder. It credited the testimony of Burke and Hall and concluded that their account supported the inference that Brady (as opposed to someone else, such as an intruder) had shot McDaniel. The court rejected the idea that the shooting was an accident. Believing that Brady‘s story to Burke was fabricated to maintain his relationship with her, the court found it not to be credible. The court also found that Brady‘s behavior after the shooting was not consistent with an accident. It noted that Brady did not call paramedics or seek help from his neighbors; instead, he delayed McDaniel‘s treatment for a “significant time” when he decided to call his mother first. Brady then attempted to obtain fresh clothes and a car, suggesting an intent to flee. He never returned to the hospital to check on McDaniel, nor did he turn himself in or seek legal advice. Suspiciously, he fled to California and assumed an alias. In the court‘s view, these were not the actions one would expect of a
B
In 2006, Brady filed a pro se post-conviction petition in state court arguing, among other things, that his trial counsel was ineffective for failing to present several witnesses. Attached to the petition were affidavits from four people—Marshawn Brady, Sondra Burke, Elliott Moore, and Flora Small—stating what testimony they would have provided had they been called.
Marshawn Brady is Brady‘s stepfather. In his affidavit, he swore that he and Brady‘s mother went to the apartment after the shooting to get Brady‘s daughter. While Brady‘s mother tended to the daughter, Marshawn forced his way into Brady and McDaniel‘s bedroom and ransacked the room looking for valuables. Marshawn said that the bedroom was neat when he entered and that he alone was responsible for the disarray Officer Dunigan encountered later that morning.
Sondra Burke, a friend, stated in her affidavit that she saw McDaniel alive at 12:20 a.m., when she picked up Brady from the couple‘s apartment. She drove Brady to her house, stopping at a payphone along the way so that Brady could call his mother. Brady and Burke spent about 35 minutes at Burke‘s apartment, and then Burke drove Brady home because his mother was coming to pick him up. Burke dropped Brady off at his apartment at 1:10 a.m. Burke‘s testimony thus would have established that McDaniel could not have been shot before 1:10 a.m., and also that Brady‘s mother was on her way to the apartment when the shooting occurred.
Elliott Moore, also a friend, was prepared to testify that he saw Brady running down Wabash Street around 2:00 a.m. Brady told Moore that McDaniel had been shot and that he needed to pick up his daughter, who was back at the apartment. Moore drove Brady to the apartment, and Brady went inside. He came back out several minutes later, crying and screaming that his apartment had been ransacked and his daughter kidnapped. Brady used Moore‘s cell phone to call Provident Hospital. He told Moore that McDaniel had been transferred to Cook County Hospital. Moore‘s testimony would have corroborated Marshawn‘s story, and would have shown that Brady checked on McDaniel after leaving the hospital.
Finally, Brady‘s aunt, Flora Small, stated in her affidavit that Brady called her around 2:30 a.m. on the day of the shooting. Brady asked Small if she had taken his daughter from the apartment. He was crying and told her that McDaniel had been shot and that his apartment had been ransacked. Small told Brady to come over. When Brady arrived, he made a phone call and then told Small that his daughter was with his grandmother. Brady told Small that he accidentally had shot McDaniel while she was folding clothes. He carried her into the kitchen, and when his mother arrived shortly thereafter, he carried her down to his mother‘s car and asked his mother to drive them to the hospital. After realizing that his daughter was still in the apartment, he tried to borrow Riley‘s car. When she refused to let him use it, he made his way toward his apartment on foot until a friend picked him up and drove him the rest of the way. Small‘s testimony would have shown that Brady described the shooting as an accident at least once before meeting Makeeta Burke.
The state trial court dismissed Brady‘s petition as “frivolous and patently without merit.” The Illinois appellate court af-
Brady next filed a timely petition for habeas corpus in the Northern District of Illinois. Again, he contended that his lawyer had rendered ineffective assistance by failing to call his proposed witnesses. After reviewing this claim in considerable depth, the district court concluded that although the state appellate court applied federal law unreasonably in finding that trial counsel‘s performance was constitutionally adequate, see
II
The standard for evaluating a claim of ineffective assistance of counsel is a familiar one: the court must assess both whether counsel‘s performance was deficient and whether the defendant suffered prejudice as a result. In Strickland, the Supreme Court explained that deficient performance “requires [a] showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” 466 U.S. at 687, 104 S.Ct. 2052. In evaluating performance, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. As for prejudice, Strickland instructs that a defendant must do more than show that his attorney‘s conduct had “some conceivable effect on the outcome,” though the “defendant need not show that counsel‘s deficient conduct more likely than not altered the outcome in the case.” Id. at 693, 104 S.Ct. 2052 (emphasis added). Instead, the “defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. The petitioner must show both deficient performance and prejudice in order to prevail.
Because Brady seeks relief from a state conviction, we review his Strickland claim through the lens of
As we noted earlier, the district court was satisfied that the Illinois appellate court had addressed both the performance aspect of the Strickland inquiry and the prejudice question. Although the state court‘s opinion is somewhat vague in this respect—it speaks of presenting the “gist” of a constitutional claim—we agree with our colleague that a generous reading of the state-court opinion supports this result. In the district court‘s view, the state court‘s conclusion that the performance of Brady‘s lawyers was constitutionally effective was unreasonable, even under the deferential standard required by
The Illinois appellate court offered a single justification for its conclusion that Brady could not demonstrate prejudice: “Finally, we note that each of the affiants was either a friend or relative of defendant. Accordingly, based on their close relationship to defendant, it is unlikely that even if the witnesses had been called, that their testimony would have altered the trial result.” This reasoning is deeply problematic. Witnesses with ties of family or friendship to a defendant are a common feature in criminal cases, and those witnesses are often privy to details that influence the outcome of a case. The state court pointed to nothing in the record that would support the assumption that the trial court would not have credited the witnesses’ testimony solely because of their association with Brady. Indeed, the law does not demand, or even permit, the disregarding of their testimony just because they are close to the accused. Cf. Raygoza v. Hulick, 474 F.3d 958, 965 (7th Cir. 2007) (counsel was deficient for failing to call family and family friends of defendant as alibi witnesses). While the trier of fact would have been entitled to take the relationships into account in assessing the witnesses’ credibility, the appellate court was wrong, to the point of being unreasonable, to conclude that this fact meant that the absence of their testimony could not possibly have made any difference.
Perhaps recognizing this, the state makes little effort to defend the appellate court‘s rationale for its prejudice ruling. Instead, it encourages us to apply
Lying behind the state‘s argument are two questions that bear on the administration of
The focus of the Court‘s opinion in Williams was the meaning of the “adjudication-on-the-merits requirement” in
Williams took the next step: it addressed the issue that arises “when a defendant convicted in state court attempts to raise a federal claim, either on direct appeal or in a collateral state proceeding, and a state court rules against the defendant and issues an opinion that addresses some issues but does not expressly address the federal claim in question.” 133 S.Ct. at 1091. Richter, it held, pointed the way to the proper resolution of that issue. Under these circumstances, “the federal habeas court must presume (subject to rebuttal) that the federal claim was adjudicated on the merits.” Id. The Court suggested several ways in which a petitioner might rebut the presumption: if the state court relies exclusively on state law, and the state standard is less protective than the federal one, rebuttal could occur; or the governing federal standard might simply have been “mentioned in passing in a footnote or [been] buried in a string cite.” Id. at 1096. In instances like those, either the petitioner might rebut the presumption and show that the federal court should review the claim de novo, or the state might rebut the presumption and show that the federal claim was procedurally defaulted. Id. Furthermore, the Court held, “[i]f a federal claim is rejected as a result of sheer inadvertence, it has not been evaluated based on the intrinsic right and wrong of the matter.” Id. at 1097. Such a claim has not been evaluated on the merits, and thus does not satisfy the requirements of
Williams therefore confirms the fact that the state court‘s reasoning continues to be relevant wherever it has given an
Brady‘s case presents a variant on the pattern described by Johnson v. Williams. Reading the state-court opinion generously, we have already decided to treat it as addressing both parts of the Strickland inquiry—performance and prejudice. The problem is thus not silence; it is what to do if the last state court to render a decision offers a bad reason for its decision. And more particularly, the question is what should happen when a person argues ineffective assistance of counsel, which requires application of a two-part test: inadequate performance and prejudice. Is this a single “claim” for purposes of
In Brady‘s case, the Illinois appellate court was the only state tribunal to address Brady‘s Strickland claim, and it found neither deficient performance nor prejudice. The district court explained why it thought the former finding was unreasonable, and we have indicated why the reason expressed for the finding on prejudice was wrong. (Brady additionally argues that the Illinois appellate court‘s decision should be rejected under the “con-
At that point, it is no longer appropriate to attach any special weight to the last state court‘s expressed reasons. The court‘s judgment, however, is another matter. With the last state court‘s reasoning set aside, the federal court should turn to the remainder of the state record, including explanations offered by lower courts. The only question in that situation is whether AEDPA deference applies to those lower state-court decisions, or if review is de novo. In close cases, it is conceivable that the choice of standard might make a difference: if the lower courts’ reasoning was incorrect, then the result might be set aside on de novo review but not (as Richter explained) under AEDPA. But it is unlikely that the standard would affect very many cases. It is worth recalling that the pre-AEDPA standard was also quite deferential to the state courts. See Richter, 131 S.Ct. at 788 (“Even under de novo review, the standard for judging counsel‘s representation is a most deferential one.“); Morales v. Johnson, 659 F.3d 588, 599 (7th Cir.2011) (“[W]e review the petitioner‘s constitutional claim with deference to the state court, but ultimately de novo.“) (internal quotation marks omitted). If the record as a whole supports the state court‘s outcome, then even under de novo review the correct result would be to deny the petition for a writ of habeas corpus.
B
The kind of independent review we have described is the best that Brady can hope for, and so we now consider whether he can prevail under that approach. Prejudice, for purposes of Strickland, exists if there is “a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052. The state trial court offered several reasons for its conclusion that the shooting was not accidental: (1) its evaluation of Brady‘s statement to Makeeta Burke that the shooting was an accident as a fabrication intended to maintain his relationship with her; (2) its adverse inference from Brady‘s behavior after the shooting, including (a) the fact that Brady called his mother, rather than 911 or his neighbors, for assistance following the shooting, (b) the fact that Brady sought to borrow a car and fresh clothes from his grandmother rather than returning with his parents to his apartment to retrieve his daughter, (c) Brady‘s failure to return to the hospital or otherwise check on McDaniel, and (d) Brady‘s flight to California and assumption of an alias.
Even setting aside the (likely) possibility that much of the witnesses’ proposed testimony is inadmissible hearsay, we conclude that this testimony does not undermine the guilty verdict. Elliott Moore‘s and Flora Small‘s testimony would have shown that Brady was crying and emotionally distressed the night of the shooting, but this is not especially probative. Brady might just as well have been crying in remorse for having murdered
None of the proffered witnesses offers a plausible alternative explanation for Brady‘s decision to flee. Although Small‘s testimony (if admissible) would have established that Brady claimed to have shot McDaniel accidentally on at least one occasion before he met Makeeta Burke—a fact that would tend to undermine the inference that his statement to Burke was false—other features of Brady‘s flight to and time spent hiding in California remain unexplained. Importantly, none of the witnesses suggests why Brady fled rather than cooperate with the police, nor do they explain his use of an alias. As Brady‘s flight was one of the most important considerations behind the trial court‘s verdict, this gap in the witnesses’ testimony is significant.
Given that so much of the proposed testimony was only marginally exculpatory, we do not find a reasonable probability that but for counsel‘s deficient performance, the result of the proceedings would have been different. Having failed to establish prejudice even under the more generous standard of review, Brady cannot show ineffective assistance of counsel and is thus not entitled to a writ of habeas corpus. We would reach the same result if we were reviewing the entire state court record using the standards set out in
Gabriela ARTEAGA, individually and as the representative of I.G., a minor, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 12-3189.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 11, 2013. Decided April 1, 2013.