MC WINSTON, Petitioner-Appellant, v. ANA BOATWRIGHT, Respondent-Appellee.
No. 10-1156
United States Court of Appeals For the Seventh Circuit
ARGUED OCTOBER 25, 2010—DECIDED AUGUST 19, 2011
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 07-C-0777—William E. Callahan, Jr., Magistrate Judge.
WOOD, Circuit Judge. For more than 130 years, federal courts have held that discrimination in jury selection offends the Equal Protection Clause. See, e.g., Smith v. Texas, 311 U.S. 128, 130-32 (1940); Norris v. Alabama, 294 U.S. 587, 599 (1935); Neal v. Delaware, 103 U.S. 370, 397-98 (1881). Early cases focused on the systemic exclusion of racial minorities from juries through state statutes, e.g., Strauder v. West Virginia, 100 U.S. 303 (1880); later,
In a nutshell, this case presents the question whether the constitutional rights of the petitioner, MC Winston, were violated when his lawyer used peremptory challenges systematically to eliminate all men from the jury in his trial for second-degree sexual assault. Winston argued that this violated both his rights under the Equal Protection Clause and his Sixth Amendment right to effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). His efforts were unsuccessful both in state post-conviction proceedings and then in the federal district court. Winston has now turned to us.
Although our role in federal habeas corpus proceedings is limited, it has not vanished altogether. We conclude here that a defense lawyer‘s intentional violation of the Equal Protection Clause falls below the performance standard established by Strickland. The more difficult issue is whether Winston can show prejudice. Resolution of that part of the Strickland inquiry requires us to choose between two competing lines of authority from the U.S. Supreme Court. Because the Court itself did not signal how it would make that choice until well after the state courts acted in Winston‘s case, we have no basis for finding that the state courts disregarded any “clearly established” precedents. We therefore affirm the judgment of the district court denying Winston‘s petition.
I
On October 5, 2001, a fifteen-year-old girl, Candida, skipped school and stopped by Kandy Konnecktion, a convenience store in Milwaukee. Though primarily a candy shop, the store also sold cigarettes, which Candida meant to buy illegally. Winston, an employee whom Candida knew, was working that day. Upon her arrival, Candida told Winston that she wanted to “kick it” for the day. Around lunchtime, Winston left with her to get Chinese food; he also bought gin, lemonade, and beer.
In light of these events, the state charged Winston with one count of second-degree sexual assault of a child by means of sexual intercourse. See
Proceeding without an attorney, Winston then filed a motion for a new trial. He asserted that he had received ineffective assistance of both trial and appellate counsel in a number of respects, including failure to raise the issue of prosecutorial misconduct, purposeful discrimination in jury selection, and failure to request new DNA testing. One new item of evidence obtained in these post-conviction proceedings was a June 9, 2003, letter from the appellate lawyer that explained why no Batson claim had been raised in either the trial court or on appeal. Although that letter failed initially to make its way into the record in this court, Winston‘s new counsel have managed to find page one of the letter for us. (We understand that the entire letter was before the state courts.) The state post-conviction court stated that the prosecutor‘s peremptory challenges were used to strike women from the panel. Page one of the letter reports that the prosecutor used his seven peremptory challenges to strike six women and one man, and the defense lawyer used his to strike six men and one woman. This information “supports [the defense lawyer‘s] statement that the all-woman jury resulted from his actions.” Tellingly, post-conviction counsel opined that this was not enough to support a claim of ineffective assistance, because it proved that the lawyer had a strategic reason for his actions. Winston‘s state appellate lawyer similarly explained that she refrained from raising a Batson claim against the original trial lawyer
On appeal during the post-conviction stage, the Wisconsin Court of Appeals granted that “trial counsel‘s strategic reason for favoring female jurors was his belief that they would be more critical of the victim than male jurors would be.” State v. Winston, 2007 WL 586394, at ¶ 13 (Wis. Ct. App. Feb. 27, 2007) (unpublished) (Winston II). It rejected Winston‘s Strickland claim (and the underlying Batson theory), however, because the court found that the lawyer was following a reasonable defense strategy and therefore, his actions were “‘virtually unchallengable.‘” Id. (quoting Strickland, 466 U.S. at 690-91). In addition, the court noted that the result of Winston‘s second trial—acquittal of the sexual intercourse offense—“blunts Winston‘s contention” that he was “harshly judged by the jury in part because it consisted entirely of women.” Id. at ¶ 12-13. On July 17, 2007, the Wisconsin Supreme Court again summarily denied Winston‘s petition for review. State v. Winston, 741 N.W.2d 239 (Wis. 2007).
Still representing himself, Winston filed a petition for habeas corpus in federal court. The district court denied the petition, but it granted Winston a certificate of appealability limited to “whether trial counsel was ineffective in his exercise of peremptory challenges, and
II
A
Our review of Winston‘s petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
The “unreasonable application” inquiry is an objective one. Williams, 529 U.S. at 409. That is, we consider “whether it is possible fairminded jurists could disagree” that the state court‘s arguments or theories are inconsistent with the holdings of prior decisions of the Supreme Court. Richter, 131 S. Ct. at 786. The writ may issue only when “the state court‘s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 786-87. As the Court has made clear, section 2254(d)(1) “would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law.” Yarborough v. Alvarado, 541 U.S. 652, 666 (2004).
That said, AEDPA does not preclude all relief. “Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.” Id. For that reason, courts are not prohibited from finding an application of a legal principle unreasonable when it involves different facts from those of the case that announced the principle. See Panetti v. Quarterman, 551 U.S. 930, 953 (2007); Lockyer v. Andrade, 538 U.S. 63, 76 (2003).
B
To assess Winston‘s claim, we begin by “determining the relevant clearly established law,” as set forth by the
Though Batson dealt with race discrimination by prosecutors, its legal principle has been extended to prohibit certain other forms of intentional discrimination in jury selection. In Powers v. Ohio, the Supreme Court rejected the premise that persons of the same race cannot discriminate on the basis of their shared race and held that “a criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the
The teaching of Batson and Powers is simple: equal protection goes both ways. This is why Georgia v. McCollum held that “the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges“; “the exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereotypes held by the party.” 505 U.S. 42, 59 (1992). Like a prosecutor, the criminal defense lawyer upsets the fairness of, and public confidence in, the criminal justice system by discriminating in the selection of the jury. See id. at 48-50 & n.6.
C
Once a Batson violation is proved, the question of remedy arises. We look at this in some detail, because in the end it is pertinent to Winston‘s ability to satisfy the standards prescribed by
Batson itself as well as the cases that follow it confirm that when a violation of equal protection in jury selection has been proven, the remedy is a new trial, without the need for any inquiry into harmless error or examination of the empaneled jury. (We set to one side the post-Batson decisions that raise only the question whether the proper procedures were followed, see, e.g., Purkett, 514 U.S. at 767-70, or whether additional evidence is necessary to determine the basis for a juror strike, e.g., McCollum, 505 U.S. at 59. Neither of those problems exists here.) In fact, since a time well before Batson was decided, the Court has followed an automatic reversal rule once a violation of equal protection in the selection of jurors has been proven. See, e.g., Smith, 311 U.S. at 132; Pierre v. Louisiana, 306 U.S. 354, 362 (1939); Neal, 103 U.S. at 397-98; Strauder, 100 U.S. at 312. That rule is simple: “If there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand.” Smith, 311 U.S. at 132.
Batson relied on three cases that employed this remedial approach. 476 U.S. at 100. First, Whitus v. Georgia held that “a conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which Negroes were excluded by reason of their race.” 385 U.S. 545, 549-50 (1967). Likewise, Hernandez v. Texas held that where “[t]he result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner,” the “judgment of conviction must be reversed.” 347 U.S. 475, 482 (1954). Finally, Patton v. Mississippi held that “[w]hen a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any . . . racial group, indictments and verdicts returned against them by juries thus selected cannot stand.” 332 U.S. 463, 469 (1947). Patton further explained that while a conviction must be reversed in the first instance, this “does not mean that a guilty defendant must go free. For indictments can be returned and convictions can be obtained by juries selected as the Constitution commands.” Id. (citing Hill v. Texas, 316 U.S. 400, 406 (1942)).
Put in the Court‘s current terminology, these cases indicate that intentional discrimination on the basis of race in jury selection is a structural error. See Arizona v. Fulminante, 499 U.S. 279, 308-10 (1991). Structural errors are “defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards,” because the “entire conduct of the trial from beginning to end is . . . affected” by the error. Id. at 309-10; see also Neder v. United States, 527 U.S. 1, 8 (1999) (“Such errors infect the entire trial process and necessarily render a trial fundamentally unfair.” (internal quotation marks
The legal principle that a substantive Batson violation requires reversal without further ado finds support in other cases examining the effects of equal protection violations in the selection of juries. Batson affirmed that “the basic principles prohibiting exclusion of persons from participation in jury service on account of their race ‘are essentially the same for grand juries and for petit juries.‘” Batson, 476 U.S. at 84 n.3 (quoting Alexander v. Louisiana, 405 U.S. 625, 626 n.3 (1972)); see also Whitus, 385 U.S. at 549-50; Patton, 332 U.S. at 469; cf. Pierre, 306 U.S. at 362 (“Principles which forbid discrimination in the selection of Petit Juries also govern the selection of Grand Juries.“). Bearing in mind this equivalence between discrimination in the grand and petit juries, we find Vasquez v. Hillery instructive for the problem before us. 474 U.S. 254 (1986). In Hillery, the Court held “that discrimination on the basis of race in the selection of grand jurors ‘strikes at the fundamental values of our judicial system and our society as a whole.‘” It refused to extend the harmless-error standard to this context because such discrimination is a form of structural error. Id. at 261 (quoting Rose v. Mitchell, 443 U.S. 545, 556 (1979)); see also Recuenco, 548 U.S. at 218
The hallmark of a structural error is that the error persists throughout the proceeding and relates to the framework in which a trial proceeds. A Batson error meets that description: “The overt wrong, often apparent to the entire jury panel, casts doubt over the obligation of the parties, the jury, and indeed the court to adhere to the law throughout the trial of the cause. . . . The composition of the trier of fact itself is called in question, and the irregularity may pervade all the proceedings that follow.” Powers, 499 U.S. at 412-13. It is therefore not surprising that in a case decided several years after Winston‘s state-court proceedings, the Supreme Court unanimously affirmed that Batson is an “automatic reversal precedent[].” Rivera v. Illinois, 129 S. Ct. 1446, 1455 (2009). Rivera distinguishes between the remedy required for an ordinary error in the denial of a peremptory challenge and the kind of constitutional error that occurs when a juror is excluded on racial grounds. In the former case, harmless error analysis is proper, and the court must decide whether the jurors who actually sat were qualified and unbiased. If they were, then the erroneous use of the peremptory challenge is harmless. The Court addressed Batson, in contrast, in a section of the opinion discussing the automatic reversal precedents. Id. at 1455-56.
It was Rivera that clarified the boundary between these two lines of authority relating to peremptory challenges—
If a Batson error has been proven, however, Rivera confirmed that a different rule applies—one of automatic reversal. Before we can apply these rules to Winston‘s case, we must address two additional complications: first, the fact that it was his own lawyer who engaged in intentional discrimination in his jury strikes, and second, the fact that this case does not come to us on direct appeal. Normally, a defendant is bound by his lawyer‘s choices, because the lawyer acts as his agent. See United States v. Boyd, 86 F.3d 719, 722 (7th Cir. 1996). But, as Boyd recognized, the general rule is that when the lawyer‘s performance falls below the Sixth Amendment bar and the defendant is prejudiced by that weak performance, then the defendant is entitled to relief. Our task is to see how that rule of agency, the Batson rule, and the Sixth Amendment right to the effective assistance of counsel intersect.
III
The governing state court opinion in this case was the one issued by the Wisconsin Court of Appeals in Winston II, see McFowler v. Jaimet, 349 F.3d 436, 446 (7th Cir. 2003), since the Wisconsin Supreme Court chose not to examine the intermediate court‘s decision. We limit ourselves to the record that was before the state court, and presume the findings of fact therein are correct.
As relevant here, Winston II disposed of Winston‘s claim in the following parts of the court‘s opinion:
¶ 12. Winston‘s third ineffective assistance claim involves trial counsel‘s alleged elimination of men from the jury. Winston contends that he was harshly judged by the jury in part because it consisted entirely of women. We reject that contention.
¶ 13. First, this same all female jury acquitted Winston of the sexual assault involving intercourse and convicted him only of the sexual assault involving contact. This result blunts Winston‘s contention. Second, appellate counsel declined to raise this claim on direct appeal because the trial counsel‘s strategic reason for favoring female jurors was his belief that they would be more critical of the victim than male jurors would be. That defense strategy was reasonable, and thus, “virtually unchallengable.” Strickland, 466 U.S. at 690-91. Consequently, an ineffective assistance claim cannot be maintained on this basis.
Winston II, 2007 WL 586394 (citations and footnote omitted).
As we read this, the court offered two reasons for rejecting Winston‘s Strickland claim: first, it thought that the fact that the jury acquitted him on one count demonstrated that he was not prejudiced by his lawyer‘s conduct; and second, it assumed that the fact that the lawyer had a strategic reason for what he did was
B
This brings us to the question whether Winston‘s lawyer performed inadequately, as Strickland defines that concept. In light of Batson, Powers, McCollum, and J.E.B., we conclude that the answer is yes. Deliberately choosing to engage in conduct that the Supreme Court has unequivocally banned is both professionally irresponsible and well below the standard expected of
Intentionally violating the Constitution by discriminating against jurors on account of their sex is not consistent with, or reasonable under, “prevailing professional norms.” Strickland, 466 U.S. at 688. To the contrary, Wisconsin forbids lawyers from engaging in unlawful representation. See
Troublingly, before this court Wisconsin has taken the position that “[d]efense lawyers often ignore, or even perpetrate, violations of their clients’ constitutional rights in the hopes of gaining a strategic advantage.” It insists that no Supreme Court precedent establishes that deficient performance occurs just because an “attorney exercises his professional judgment based on
C
Winston cannot prevail unless he can also show that he was prejudiced by his lawyer‘s ineffective perfor-
The state‘s argument that Winston II adequately addressed prejudice under Strickland when it concluded that the result of the trial “blunts Winston‘s contention” that he was “harshly judged” by the all-female jury, 2007 WL 586394, at ¶ 12-13, does not come to grips with the consequences of Hillery, Neder, and Strickland. Hillery held that “when a petit jury has been selected upon improper criteria . . . we have required reversal of the conviction because the effect of the violation cannot be ascertained. . . . Like these fundamental flaws, which never have been thought harmless, discrimination in the grand jury undermines the structural integrity of the
D
Even this, however, is not enough to allow Winston to prevail. All we have shown thus far is that the state court erred in its evaluation of Winston‘s Strickland claim. But as we acknowledged at the outset, more than error must be shown in order to obtain relief under section 2254. The state court‘s resolution must be so far out of bounds that it is objectively unreasonable. The question is therefore whether the state court transgressed that outer perimeter when it failed to see the link between the analysis of prejudice in the structural error cases and the analysis of prejudice in the Strickland line of cases. That link would have been apparent, we believe, if the state court had not made the error of assuming that lawyers are permitted intentionally to violate the Constitution when they represent criminal defendants. The Supreme Court, as we have explained above, has emphatically rejected that proposition.
Nevertheless, as the state points out, the Supreme Court has never spoken to exactly this set of facts. That alone is not enough to doom Winston‘s petition; Williams v. Taylor holds that an unreasonable application of law exists “if the state court either unreasonably extends a legal principle from our precedent to a new context
As we have already explained, the legal principle at stake here is the one calling for automatic reversal in response to proven Batson violations. It is true that Winston has not raised a direct Batson complaint (because the failing was that of his own lawyer); instead he complains of ineffective assistance of counsel. But rules of automatic reversal are not unknown in the Sixth Amendment context. Strickland itself teaches that there are times when prejudice is so likely that “case-by-case inquiry into prejudice is not worth the cost“—“prejudice is presumed.” 466 U.S. at 692. Granted, instances of presumed prejudice are rare, but several are well established: when counsel is not present at a “critical stage” of a hearing, see United States v. Cronic, 466 U.S. 648 (1984), including situations where “counsel has entirely failed to function as the client‘s advocate,” Florida v. Nixon, 543 U.S. 175, 190 (2004); when a defense lawyer has an actual conflict of interest, see Cuyler v. Sullivan, 446 U.S. 335 (1980); when a criminal defendant does not receive appointed counsel on direct appeal, see Penson v. Ohio, 488 U.S. 75 (1988), or when a non-pro se defendant is denied counsel of her choice, see United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). The same
If this is a strong message from the Supreme Court, however, it must yield to an even stronger command: when federal courts are applying section 2254, they must respect the line between applications of existing principles to new situations and extensions of the law. While we are persuaded that prejudice automatically flows from a deliberate Batson violation, we recognize that the Supreme Court of the United States had not yet taken this step at any point while Winston‘s case was before the Wisconsin courts. Indeed, our own decision in Boyd contains dicta that suggests that something like the Martinez-Salazar inquiry should apply here, 86 F.3d at 722. A division of authority in the lower courts provides some evidence that the matter has not yet been clearly established by the Supreme Court. And the lower courts were indeed divided on this point. See, e.g., Henderson v. La Marque, 2002 WL 1034047, at *11 n.3 (N.D. Cal. May 15, 2002); compare Boyd, 86 F.3d 719 (requiring a defendant to demonstrate ineffective assistance for a Batson-McCollum violation), with United States v. Huey, 76 F.3d 638 (5th Cir. 1996) (granting a new trial, without any showing of ineffective assistance, for a proven Batson-McCollum violation). It was not until Rivera, decided over a decade after Boyd and Huey and two years after Winston II, that the Supreme Court explained
But Rivera lay in the future at the time the Wisconsin courts acted. It was not outside the boundaries of reasonable differences of opinion, given the state of the law at the time, for those courts to predict that the Supreme Court would apply a harmless-error standard even to intentional Batson violations like the one committed by Winston‘s lawyer. We therefore AFFIRM the judgment of the district court denying Winston‘s section 2254 petition.
8-19-11