Yancey v. Gilmore, 96-1977

Citation113 F.3d 104
Decision Date07 May 1997
Docket NumberNo. 96-1977,96-1977
PartiesThomas YANCEY, Petitioner-Appellant, v. Jerry D. GILMORE, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Ian Brenson (argued), LaGrange, IL, for Petitioner-Appellant.

Steven R. Splitt (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.

Before FLAUM, MANION, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Thomas Yancey, an Illinois inmate who in 1975 was convicted of first degree murder and sentenced to seventy-five to ninety years in prison, appeals the district court's denial of his petition for a writ of habeas corpus. We affirm.

I.

The facts of the case are outlined in Yancey's direct state appeal, People v. Yancey, 57 Ill.App.3d 256, 14 Ill.Dec. 790, 372 N.E.2d 1069 (1978). Briefly, the victim, fifteen-year-old William Wilkerson, was shot in the chest and shown (superficially wounded but alive) by Yancey and his codefendant, Brown, to two juveniles, Dickens and Parks, in the eleventh-floor laundry room of a Chicago Housing Authority building. Brown instructed Dickens and Parks to tie up Wilkerson and stop the elevators between the eleventh and twelfth floors. Yancey and Brown dragged Wilkerson toward the elevator shaft, but he struggled so that, rather than being thrown down the shaft, he was returned to the laundry room. Yancey and Brown then unsuccessfully attempted to kill Wilkerson by placing a broom handle over his neck and stepping on it and by strangling him with a stocking. Wilkerson was eventually killed by one gunshot to the temple and his body thrown down the elevator shaft, where it was later discovered. Yancey and Brown were convicted of murdering Wilkerson by a jury after a trial featuring the testimony of Dickens and Parks. The Appellate Court of Illinois affirmed, and the Supreme Court of Illinois denied leave to appeal. Later, Yancey filed a state post-conviction petition, which was dismissed. The appeal from that dismissal was dismissed for want of prosecution.

In the district court, Yancey filed pro se a petition for a writ of habeas corpus alleging numerous grounds for relief. On appeal, where he is represented by counsel, he has narrowed his contentions to two: that during closing arguments the prosecutor unconstitutionally referred to Yancey's failure to testify on his own behalf, and that Yancey was denied his right to effective cross-examination where the trial court refused to allow evidence of Dickens's and Parks's criminal histories to impeach their credibility.

II.

Yancey has preserved both of his claims for federal review. There is no question that he has exhausted his state remedies. Further, each of these claims was presented to the Appellate Court of Illinois and the Supreme Court of Illinois on direct review. Although both Yancey and the state have lost copies of Yancey's petition for post-conviction review, the district court gave Yancey the benefit of the doubt on the issue of procedural default and reached the merits of the claims. We believe it immaterial in this case whether Yancey included these claims in his post-conviction petition: res judicata would have prevented Yancey from further litigating these claims in the Illinois state courts after the direct review process, but res judicata is not a bar to federal habeas review. See Gomez v. Acevedo, 106 F.3d 192, 195-96 (7th Cir.1997). Accordingly, Yancey has avoided procedurally defaulting these claims, and they are amenable to federal review.

Under the recently amended § 2254(d), Yancey must show that Illinois's adjudication of his claims:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d) (1996). The amended § 2254(d) applies to cases pending on the date of its enactment. Lindh v. Murphy, 96 F.3d 856, 867 (7th Cir.1996) (en banc), cert. granted in part, --- U.S. ----, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997). As Yancey does not dispute the state court's factual findings, we discuss only § 2254(d)(1).

A.

Yancey first claims that during closing argument the prosecution unconstitutionally commented on his decision not to testify on his own behalf.

When Yancey was arrested, he gave two separate inculpatory statements, one to John Markham, an investigator for the Chicago Police Department, in the presence of another investigator, and one to Assistant State's Attorney Harry Wilson in Markham's presence. Both Markham and Wilson testified during Yancey's trial that Yancey had admitted to participating in the murder. During closing argument, the prosecution stated:

Mr. Yancey's statement is he took William Wilkerson up to the 11th floor and he participated in the pushing of that body, pushed that body into that elevator shaft.

You also heard the testimony of Assistant State's Attorney Harry Wolfson [sic] regarding the statement of Mr. Yancey to the same effect that Investigator Markham testified.

Those statements, the testimony that you have heard from the witness stand, the testimony of Investigator Markham as to those statements, the fact that they were made, the testimony that you have heard from Assistant State's Attorney Harry Wolfson [sic], the fact that Thomas Yancey made that statement to him--He testified as to what the two defendants told him--and that testimony which you have heard from that witness stand is unrebutted and uncontradicted.

After the defense's objection was overruled, counsel said, "You are here to decide a case based upon the testimony you heard from that witness stand." Yancey asserts that these comments necessarily focused the jury's attention on Yancey's failure to testify at trial.

As a corollary to a defendant's constitutional right to decline to testify in his own defense, the Supreme Court has held that neither the prosecution nor the court may invite the jury to infer guilt from the defendant's silence. Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965); United States v. Wing, 104 F.3d 986, 990 (7th Cir.1997). Griffin involved a direct comment on the defendant's decision not to testify, but in subsequent cases, this circuit has "repeatedly recognized that indirect commentary on a defendant's failure to take the stand can also constitute a violation of the defendant's Fifth Amendment privilege not to testify." United States v. Cotnam, 88 F.3d 487, 497 (7th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 326, 136 L.Ed.2d 240 (1996). Consequently, we have held that prosecutorial characterizations of the government's evidence as "uncontradicted," "undenied," "unrebutted," "undisputed," "unchallenged," or "uncontroverted" violate a defendant's right to silence if the defendant is the only person capable of contradicting, denying, rebutting, disputing, challenging, or controverting the evidence at issue. See id. (collecting cases); Freeman v. Lane, 962 F.2d 1252, 1260 & n. 6 (7th Cir.1992) (collecting cases); United States v. DiCaro, 852 F.2d 259, 263 (7th Cir.1988); United States v. Buege, 578 F.2d 187, 188 (7th Cir.1978).

Yancey relies heavily on this circuit precedent to support his constitutional claim, but under the new § 2254(d) it is "clearly established Federal law, as determined by the Supreme Court of the United States," not the circuit courts of appeals, that controls. We may no longer rely upon our own precedent to grant a writ of habeas corpus. Liegakos v. Cooke, 106 F.3d 1381, 1388 (7th Cir.1997); Lindh, 96 F.3d at 869. The question, then, is whether a decision of the Supreme Court had clearly established, as of Yancey's direct appeal, that indirect references to a defendant's failure to testify, in some circumstances, violate the Fifth Amendment.

The only Supreme Court case that arguably supports Yancey's claim is Griffin which specifically held that "the Fifth Amendment ... in its bearing on the States by reason of the Fourteenth Amendment forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." 380 U.S. at 615, 85 S.Ct. at 1233. Although the Appellate Court of Illinois did not cite Griffin in disposing of Yancey's appeal, it did cite state-court opinions for the proposition that "[c]ommenting upon the unrebutted and uncontradicted nature of testimony is considered a permissible summary of the evidence." See Yancey, 14 Ill.Dec. at 795, 372 N.E.2d at 1074. This Illinois rule, though it differs from the holdings of this circuit, is not "contrary to" Supreme Court precedent, for, as we noted above, Griffin involved only direct comment upon the accused's decision not to testify. See Freeman, 962 F.2d at 1260 ("Comments by the prosecutor on the state of the evidence that may indirectly refer to the defendant's silence ... have not been the subject of direct Supreme Court guidance."). Indeed, People v. Hopkins, the Illinois Supreme Court decision the appellate court relied on in Yancey's case, correctly cited Griffin to this effect: "by the Federal constitution ... the court and the prosecutor are forbidden from making any direct reference to a defendant's failure to testify." 52 Ill.2d 1, 284 N.E.2d 283, 285 (1972) (citing Griffin; People v. Burton, 44 Ill.2d 53, 254 N.E.2d 527 (1969)).

Nor can the appellate court's decision in Yancey's case be described as an unreasonable application of relevant law. The "unreasonable application" prong of § 2254(d)(1) speaks to the state court's handling of mixed questions of law and fact. See Lindh, 96 F.3d at 870. Here, the Illinois court concluded that Griffin did not even apply under the circumstances of this case. We have explained why this...

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