James A. Nichols v. John R. Gagnon and Bronson La Follette

may appealing nonetheless authorize to present argument its new on re-

party NICHOLS, James A. Board). mand to the Petitioner-Appellant, Moreover, even if we were assume that

the rule of require Woelke and Sambo’s did John R. La GAGNON Bronson parties move for or reargument rehear- Follette, Respondents-Appellees. representation ing in it proceedings, would 81-2914. No. necessarily the Company follow that right rely has forfeited its upon Allis- Court Appeals, United States Chalmers. Even party where a would ordi- Circuit. Seventh be narily required to make a motion for April Argued 1983. upon reconsideration penalty forfeiting June 1983. argument, an omission Decided party’s may be aby showing excused of extraordinary cir- Rehearing and Rehearing En Banc Inc., Cutting cumstances. NLRB v. Sept. 12,1983. Denied Cir.1983). F.2d The instant are extraordinary circumstances in that Al- yet

lis-Chalmers had not been decided at when the Company time could have for

moved reconsideration. As the Compa- could not then

ny have known that the law

of the circuit would provide powerful

defense, it should not for penalized be fail-

ing to move for reconsideration. summary, we

In conclude the Com- objection to

pany’s inadequacy of the timely

record transmitted was raised. We per

therefore hold that under the se rule of

Allis-Chalmers, an order of the Board upon Regional

founded Director’s ex

parte investigation without benefit of Regional

the evidence relied on Di- cannot

rector be enforced. for Company review is

granted. cross-application The Board’s certification

enforcement denied. The aside,

set and the cause is remanded to the proceedings

Board for not inconsistent with opinion.

this Costs taxed to the National ‍​​​​‌‌‌‌​‌​​​​‌‌‌​‌‌‌‌​​‌​‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​​‍Board, Respondent. Relations

Labor sight she lost following

was her and when afraid, because car she became of the third in the to her earlier made advances he had she to evade him In an effort evening. street. into a dead-end by turned mistake turned off her car and stopped She ignition, hoping Nichols lights and stopped his But he did. He not notice her. hers, out, over to and came got car behind her, renewing began talking her car and out of the car got advances. She his earlier her. away. He attacked and tried to run off, began when he fought him but She knife, and threaten her with choke her attempt- resisting, and Nichols stopped she her. He had intercourse with ed to have man- achieving an erection but difficulty then briefly. her He aged penetrate him ordered her to follow released her but at an stopped her car in her car. She bar, shouting, and ran into a intersection me, rape me. tried to kill tried guy “This me; raped he me.” She rape He tried to was cut and bruised. in- follows: He had

Nichols testified as Greenamyer Mrs. after her approached deed street, and in the dead-end stopped car had him. have intercourse with asked her to consеnted, impotent he was and but She vagina. in her She only put finger his expressed fear disgust reacted with and out about the that her husband would find then left. incident. He Martin, Public Defend- Richard D. State guilty of found Nichols In 1975 er, Madison, Wis., petitioner-appellant. for offenses. He was sentenced rape and other additional two for and an years Gen., Knutson, Atty. Madi- Kirbie Asst. safety by conduct endangering for years son, Wis., respondents-appellees. exhausting state of life. After regardless COFFEY, PELL, Before POSNER habeas brought he this federal remedies Judges. Circuit аppeals from action in he corpus (He paroled was petition. the denial of his POSNER, Judge. Circuit Tk serving years prison, recently after 1974 James evening September One ac- does not moot this of course that drinking in a bar in Milwaukee Nichols was to de- we are asked tion.) only The issue included Marie Greena- group with a refusal to judge’s the trial cide is whether married, her hus- Although she was myer. of- included jury on the lesser instruct group decided present. was not band error of rape was an attempted fense of and Mrs. bar. Niсhols to leave for another magnitude. constitutional cars; the rest separate Greenamyer drove an of Wisconsin the law According Under third car. in a group was included instruction on a lesser testimony, Nichols Greenamyer’s to Mrs. proper if there is a reasonable basis in rejoins tion. The state that since Nichols’ the evidence for conviction of that offense. testimony support did not theory of at- “To an instruction on a lesser included tempted rape denied having coerced —he offense whеn the commission of that lesser her at all—and since Greenamyer’s Mrs. included offense is not reasonably shown testimony was that she had raped, been no evidence is favor to a defendant. no evidentiary basis for convict- The inclusion of a doubtful lesser included ing Nichols of attempted rape. We disa- likely offense is to result in jury’s compro- gree. Since both testified to Nichols’ diffi- mise to the detriment of the defendant.” erection, culty achieving an the evidence State, 160, 170, Ross v. Wis.2d Greenamyer that Mrs. was forced was in- 827, (1973). N.W.2d evidence is “[T]he herently stronger than the evidence that to be viewed in the light most favorable it raped. she was And when she first told of will admit ‘reasonably of from the stand- the incident she said twice that had Nichols point of the accused.’ This test does not rape (This ambiguous, tried to her. weighing call for a evidence the though; she may not have realized that judge. trial merely obliged He is to exam- slight penetration even is enough to consti- ine the evidence to determine whether the rape.) tute proposed upon instruсtion is based mere whether, conjecture and if a verdict were were duty If it our to decide offense, returned on the lesser included he whether there was a reasonable evidentiary obliged would be to set it aside.... To basis for an instruction on attempted rape, offense, instruct on the lesser included ... was; we would hold there it is A but not. the evidence of the lesser included offense federal court in a habeas corpus proceeding must be relevant and appreciable; and as brought aby prisoner does not sit to favorably defendant, considered most to the correct errors in application the of state the inclusion of the instruction must not be Fairman, Carbajol 397, 401 law. v. 700 F.2d 172-73, unreasonable.” 61 Wis.2d at (7th Cir.1983). In United States ex rel. N.W.2d at 833. The rule in federal criminal Sielaff, 402, Peery (7th 615 F.2d trials, states, virtually and in all the is the therefore, Cir.1979), joined we several other same or similar. See Keeble v. United holding circuits in that failure to instruct on States, 1993, 412 U.S. 93 S.Ct. offense, a lesser included even if incorrect 1995, 36 (1973); L.Ed.2d 844 Beck v. Ala- law, under state does not setting warrant bama, 625, 12, 447 U.S. 636 n. aside a state conviction unless “failure to 12, (1980). n. 65 L.Ed.2d 392 give the instruction could be said to have Wisconsin Supreme Court that it concluded miscarriage amounted to a fundamental of would have been unreasonable for the justice.” It could not Although here. as an to have convicted attempted Nichols of original we matter think Nichols was enti rape, but the explain court did not the basis tled under the standard enunciated in Ross for its conclusion. to an instruction on the lesser State Nichols question does not the consti rape, included offense of it is a attempted tutional adequacy of the Wisconsin stan question say close and we cannot that the (nor Evans, dard could he after Hopper v. Supreme Wisconsin Court was unreasonable 605, 102 456 U.S. 72 L.Ed.2d 367 him, against to resolve it or that the denial (1982); Watkins, see also Bell v. 692 F.2d of the instruction in the circumstances of (5th Cir.1982)), appli likely this case was to have resulted in the cation of the standard to the facts of his conviction of an innocent man. argues jury might case. He that the Peery But we must consider whether can he tried believed one hand that had Alabama, survive supra, Mrs. and on the other Beck v. Greenamyer Supreme might hand he 100 S.Ct. at where that had succeeded — unavailability other have believed all of Mrs. of a words Court held “if testimony except enhances Greenamyer’s penetra- on lesser included offense instruction against loaded conviction, the choice was not acquittal unwarranted the risk of an [the defendant, it was in Beck where as from the constitutionally prohibited ‍​​​​‌‌‌‌​‌​​​​‌‌‌​‌‌‌‌​​‌​‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​​‍state] probability of was no rеasonable in a withdrawing option from a lesser-in- To defendant’s innocence. in the Peery We followed capital case.” a case where instruction in Greer, cluded-offense of Davis v. case post-Beck complete of evidence there is substantial 141, 145 Cir.1982), but without discuss probabili- easily reduce innocence Applied Beck. bearing of ing possible offering acquittal, by of ty here, test of Beck the “risk enhancement” finding the de- of compromise attractive setting aside Nichols’ require might seem the lеsser offense. guilty fendant one think that Although conviction. included instruction omitting a lesser illustration, as- for the sake Purely rather probability increase probability sume that in Beck the more serious of of conviction of than of capital the defendant jury would convict fense, Supreme the Court’s this was not no lesser-included-of- if there was murder unques Beck: “when the evidence view in the percent 90 and fense instruction was is establishes that the defendant tionably but that acquittal percent, of 10 probability serious, violent offensе —but guilty of a instruction if the lesser-ineluded-offense respect with to an ele leaves some doubt murder) given proba- had been (felony justify conviction of ment capital of murder would of conviction bility give jury capital offense —the failure felony murder 45 of percent, have been lesser option’ convicting of on a the ‘third On acquittal percent. of percent, and inevitably seem included offense would well might Beck have assumptions these convic enhance the risk of an unwarranted to instruct on by the failure been harmed at at 2389. tion.” 447 U.S. S.Ct. that in offense. Assume the lesser included case, lesser-included-of- with no present however, Beck, involved a statute that probability of given, instruction fense on a lesser giving forbade an instruction acquittal and of percent was 60 conviction case) (in any capital offense no included had that if the instruction percent, strong matter how the evidence of the de- of of conviction given probability been the lesser included of- guilt fendant’s of of convic- percent, would have bеen 40 jury fense. A forced to choose between of and attempted rape percent, tion of in a ease where it acquittal conviction and Weighing greatly acquittal percent. guilty is certain that the defendant of the in- of if probability reduced testimony crime—Beck’s own serious against the enhanced given struction was murder, of guilty felony showed he was if he was a shorter sentence probability of may in that lesser included offense case— convicted, think himself bet- might Nichols charged decide to conviсt him of the offense course the instruction. Of without ter off one even if it has a reasonable doubt that of they illus- conjectural but figures these are (the element, of that offense the elements in Beck clear here than why it is less trate penetration, part in this case that is not the omis- was hurt the defendant offense) actually was the lesser included instruction. sion of the not certain that Nichols proved. But it was distinguishing Beck Another any was crime. The guilty in that case greater and if it had it is that story have believed his is inten- the victim caрital (robbery seri- when acquitted very him of the would have emphasized killed). This fact tionally charged. with which he was ous offense opinion, Supreme Court’s throughout facing was to convict The choice 637-43, at element of see id. every Nichols of a crime not holding its 2389-92, applicability and the thought proved jury might which have reserved, id. him; expressly cases is noncapital acquit doubt or to beyond a reasonable 14. at 2390 n. evidence for at 638 n. there was substantial and since Although the Court some may day (7th Cir.1983) decide (concurring оpinion) —from to extend the rule of Beck to noncapital his conviction.

cases, anticipate we are not inclined to its The underlying concern Jackson v. Vir- doing specific right so. Beck vindicated no ginia assuring that the innocent are not — Rights applied found in the Bill of convicted —cannot be faulted. But it is un- through process the states the due clause of clear to us why state courts cannot be the Fourteenth Amendment. The only fully trusted to prevent such an outrage. right right asserted was the not to be erro- To be might concerned that state courts neously convicted because the instructions weight so much to federal constitution- guilt have induced the to find rights al (though as federal courts do if even one element of the crime had not is considerable doubt that this is true today, proved been beyond reasonable doubt. whatever the situation may been) once have right erroneously is, The not to be convicted thing; is one to think that judges surprising say, something novelty of a less concern than federal judges constitutional criminal procedure. avoiding with the conviction of the innocent proposition that “innocence is not irrele- is another. The innocent despised are not a vant” was Friendly, advanced in Is Inno- minority vulnerable who pro- need the cence Irrelevant? Collateral Attack on tection of the federal courts. Judgments, Criminal 38 U.Chi.L.Rev. 142 Beck is a case in the Jackson tradition in (1970), in an effort to reduce the inundation it deals not with a specific constitu- of the federal courts with collateral attacks right tional but with the danger of сonvict- convictions, on rather than to establish a ing person. an innocent Since the conse- had, ground new for such attacks. But it quences of such an error are so appalling conjecture, we the unintended consequence where the upon sentence conviction is of encouraging Supreme Court to create death, Beck is an understandable extension Virginia, in Jackson v. 443 U.S. principle, of the Jackson and understanda- (1979), 61 L.Ed.2d 560 a completely ble or not is of course binding on us. But new office for the federal courts in habeas wary making we are further extensions corpus proceedings reviewing the suffi- — far, goes on our own initiative. Jackson as ciency of the petitioner’s evidence in the said, we have making toward the federal trial to make sure that a rational trier of corpus just appeals habeas court a second fact could have found him guilty beyond a court, performing distinctively no federal reasonable doubt. This is similar to the generalized If Beck must be function. appellate standаrd that an court would use noncapital cases —if we must decide wheth- conviction, on direct review of a criminal er in such a case lesser-included-offense why which is one sometimes finds Jackson instruction was correctly refused —how Virginia being v. cited describing as having shall we avoid to determine every standard we use appeals on direct from other state procedure might issue of See, federal criminal convictions. e.g., a bearing accuracy on of the state Tranowski, United States 659 F.2d guilt? court’s determinаtion of (7th Cir.1981). Jackson has changed of the day role federal court in a habeas even if Beck is some Finally, extend- corpus proceeding brought by cases, pris- noncapital state ed to there will still be the just deciding specific oner from that of question what the standard of collateral questions federal constitutional to that of review is. Because the in statute Beck giving prisoner virtually ap- giving a second forbade a lesser included instruction peal least of the evi- sufficiency capital on in a case no matter what circum- —at stances, the elements of the not have prove Supreme dence to each of Court did doubt, see crime a reasonable Greid- decide how much deference to state beyond Duckworth, er v. 701 F.2d 1235-36 court’s determination that the circumstanc- the defendant’s constitu De- sent a violation of not warrant such an instruction. es did not sub federal courts should rights, tional Virginia, the Court spite Jackson high judgment for that of stitute their adopt recognition a deferential standard unnecessary It is est court of the state. giving fact that such an instruction of the issues address constitutional this court helps rather than the defend- often harms in the resolu that need not be considered and of the too acquittal, ant’s chances of constraint appeal. of the instant Such tion fact state courts have little stressed our decisions and “lessens stability lends not to the same incentives as federal courts practical ‘untoward ramifica the threat of to be convicted. people allow innocent the timе of deci tions’ ... not foreseen at ___ ___, Gates, the federal courts in sion.” Illinois v. To transform ___, 76 L.Ed.2d 527 corpus jurisdic the exercise of their habeas (1983) (citation omitted). specific tion from enforcers constitution rights guarantors accuracy al cor- cognizable In to state a habeas order guilt determinations of would court claim, allege must pus judiciary enmesh the federal almost ev peti- deprived trial court’s instructions procedure detail of state criminal ery right. constitutionally protected tioner of a wе every ruling, regularly trial Davis v. 2254(a). section See U.S.C. have to review failures to instruct on lesser Greer, (7th Cir.1982). In included offenses under state law as well as court, his to the federal district application specific ‍​​​​‌‌‌‌​‌​​​​‌‌‌​‌‌‌‌​​‌​‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​​‍decide other issues unrelated to a challenged his conviction for Nichols safeguard. federal constitutional We shall rights process that his due up take it decline this task until directed to the trial court refused were violated when judicial superiors. our one of the Since on the lesser included to instruct due rights оf criminal defendants under the re- attempted rape. my From offense of Amend process clause of the Fourteenth record, that the view of the I am convinced according ment is to be tried to the funda were in no petitioner’s process rights due of civilized contemporary mental norms applica- way petitioner’s violated and the Connecticut, 302 procedure, proper- Palko v. U.S. corpus tion for a writ of habeas 319, 149, (1937), 58 82 L.Ed. 288 we the district court. ly by S.Ct. denied shall continue to failures to instruct review 625, Alabаma, 447 100 In Beck v. U.S. of Peery under the standard —fundamental 2382, (1980), the 65 L.Ed.2d 392 Su- S.Ct. miscarriage justice. of But there was none held that a sentence of death preme Court case, judgment this denying in so Nich verdict of imposed jury could not be after a petition corpus ols’ for habeas is offense, guilt capital of a when a verdict of a permitted was not to consider

Affirmed. offense, non-capital provided lesser included supported would have evidence COFFEY, Judge, concurring. Circuit express- in Beck such a verdict. The Court join opinion I court in affirm- on whether the due ly judgment reserved for a writ ing the denial Nichols’ re- process guarantees the Constitution n separately I write be- corpus. of habeas giving of lesser included quired the how the trial cause I fail to understand need non-capital in cases. We instructions error, let alone an error committed an court assuming as even question not decide this failing in magnitude”, of “constitutional case it is clear applies Beck to the instant rape instruc- attempted to the law to lesser pertаining that the Wisconsin been a defendant has requested. tion Once instructions in effect included offense trial, has in effect a state court and convicted of a crime in the time of Nichols’ system constitu- appellate today, applicable conforms with gone through the state affirmed, standards. ab- tional that conviction and has had

1273 Evans, 605, In 102 Hopper U.S. instruction ‍​​​​‌‌‌‌​‌​​​​‌‌‌​‌‌‌‌​​‌​‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​​‍on a lesser included offense is (1982), only 72 L.Ed.2d 367 the Court if there is a reasonable in proper S.Ct. basis had an review Beck in an- opportunity to the evidence for conviction of that offense.” capital other case. The Court reiterated not a majority’s paraphrase simply that: complete appropriate statement set forth by standard Wisconsin Su- “The Beck opinion considered the alterna- preme in Ross subsequently Court reaf- open tives to a which is constrained Williford, firmed in State v. 103 Wis.2d by preclusion clause and therefore un- (1981), complete- N.W.2d because it able to convict a defendant of a lesser ignores ly one of the two sub-issues in- included offense when there was evidence Contrary majority opinion, volved. to the which, believed, if reasonably under the law of Wisconsin “there must be guilt led to a verdict of of a lesser of- a reasonable in the evidence for fense.” greater charge and for (emphasis added). S.Ct. at 2052 Ross, charge,” conviction on the lesser capital “Beck held that due [in case] Wis.2d at 211 N.W.2d 827 (emphasis process requires that a lesser included added), justify submitting a lesser includ- offense instruction given be when the charge. ed evidencе warrants such an instruction. rule, however, suggest This does not process requires But due that a lesser submission of lesser included is au- offenses given included offense instruction be upon request: tomatic when the evidence warrants such an in- “The key word the rule is ‘reasonable.’ struction. The jury’s discretion is thus The rule does suggest not some near au- may channelled so that it convict a de- of all tomatic inclusion lesser but included any fairly fendant of crime supported offenses as additional to the options jury. law, the evidence. Under Alabama different, if Only ‘under a but reasonable non-capital rule in cases is that a lesser view,’ the evidence is sufficient to estab- included offense instruction should be guilt degree lish of the lower and also given if ‘there theory reasonable par- leave a reasonable doubt as to some support from the evidence which would higher ticular element included in the the position’ ... The Alabama rule degree but not the lower should the lesser clearly does offend federal constitu- to the jury crime also be submittеd ...” standards, tional and no reason has been why

advanced apply capi- it should not Bergenthal, 47 Wis.2d State tal cases.” denied, (1971), cert. N.W.2d (1971). 29 L.Ed.2d 136 at 2049 (emphasis added). the court by denying As noted district in Likewise, it is clear that the Wisconsin request: Nichols’ habeas rule (concerning the inclusion of a lesser instruction) applied petitioner’s included offense to “At the trial he testified that applicable rap- Nichols does not offend the fed- the woman whom he was accused of ing agreed voluntarily eral constitutional standards. standard to have intеr- The applied determining to be in in with him but he was unable to Wisconsin course The woman testified whether a “lesser included” instruction achieve an erection. her to submit given jury clearly petitioner should be to a was stated that the forced State, penetration accomplished 211 and that was in Ross v. 61 Wis.2d 827, (1973). petitioner’s erection was majority pur- although N.W.2d 831 The petitioner’s argument The is that ports recognize controlling to Ross as but weak. have believed the woman’s jury the standard for inclusion only paraphrases forced, have that she was testimony offense instruction stat- of a lesser included testimony that he was the law of an also believed his ing that Wisconsin “[u]nder 1274 Elk, F.2d v. 658 erection, 1982) an and under and United States

unable to achieve 644, Cir.1981). (8th 648 circumstances that an instruction those attempted rape appropriate. on was 888, Sinclair, 444 F.2d v. In United States that the court stated (D.C.Cir.1971), 890 that it would The district court concluded give the lesser-included “refusal to required unlikely have “an construction defend- error when instruction is not [the] to have jury” the evidence fоr a reasonable exculpatory testimony completely ant’s argument. I accepted petitioner’s acquit- to and, believed, lead if a reasonable agree unlikely that it was that by to the Sin- referred tal.” The situation jury accepted petitioner’s present- that which is exactly clair court I am of the facts. convoluted assessment ba- Thus, was no rational herein. ed presented confident that the evidence instructing the for the instant case sis in “a reasonable certainly supply trial did not at- оffense of the lesser included jury on greater ... no error and and hence I find tempted rape charge for conviction on the lesser and give trial court’s refusal agree with the 169, Ross, charge.” 61 Wis.2d at instructions. United requested See (emphasis added). N.W.2d 827 735, Collins, 652 F.2d States testimony, the oth- Throughout petitioner process his nor Cir.1981). Neither due aby is offended complainant readily guarantee that er constitutional maintained on a charge judge’s trial refusal with his sexual voluntarily complied in the evi- reasonably supported mattеr Nichols, time, according to advances. At no Keve, 103, F.2d Hallowell v. dence. See struggle. or Ac- complainant did the resist (3d Cir.1977). cording testimony ‍​​​​‌‌‌‌​‌​​​​‌‌‌​‌‌‌‌​​‌​‌‌​​‌‌‌‌​‌​​‌​‌‌​‌‌‌​​‍complain- of the to the ant, con- petitioner her encounter with in the limiting review Additionally, only (penetration by achieved force stituted enunciated to the standard instant ease consent, Baldwin and without the victim’s Peery v. ex rel. this court United States State, 116, 122-23, (7th Cir.1979) (per 207 N.W.2d Sielaff, 59 Wis.2d 615 F.2d 940, 100 denied, 446 U.S. S.Ct. (1973)). testimony petition- curiam), The cert. denied, reh’g 448 U.S. 64 L.Ed.2d er, believed, provided complete if defense (1980), L.Ed.2d 1174 (consensual involvement). rape charge to a Greer, 675 F.2d in Davis v. and reiterated agree majority’s accept- I with the cannot Nichols’ (1982), it is clear that account of petitioner’s hybrid ance of the court. by the district properly was denied noting “[sjince both tes- the encounter presented evidence difficulty achieving tified to Nichols’ an included support a lesser insufficient erection, that Mrs. the evidence Greena- the trial charge attempted rape, stronger myer inherently was forced was refusing give not err in court did raped.” than the evidence that she was instruction. Nichols tendered defendant’s gymnastics mental are not consistent Such the evidence of prove failed to has long-accepted with Wisconsin’s reasonable forcible, attempt at inter non-consensual test for the inclusion of lesser in- evidence unequivocally strong course was “so required by nor cluded offense instructions amount failure to instruction [the] Process logical reading of the Due Clause miscarriage justice.” fundamental ed to a of the Constitution. Davis, at 145. evidence, that when the It is well-settled provide entirety, considered in its does acquit

rational basis for a lesser convict on the

greater charge and exclude the trial court should

charge, the instruction. United See

lesser-included Neiss, Cir.

States

Case Details

Case Name: James A. Nichols v. John R. Gagnon and Bronson La Follette

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jun 29, 1983

Citation: 710 F.2d 1267

Docket Number: 81-2914

Court Abbreviation: 7th Cir.