126 F.3d 876 (7th Cir. 1997), 97-1472, Holman v. Gilmore
|Docket Nº:||97-1472, 97-1693.|
|Citation:||126 F.3d 876|
|Party Name:||Tafford Lee HOLMAN, Petitioner-Appellee/Cross-Appellant, v. Jerry D. GILMORE, Warden, Respondent-Appellant/Cross-Appellee.|
|Case Date:||September 11, 1997|
|Court:||United States Courts of Appeals, Court of Appeals for the Seventh Circuit|
Argued Aug. 13, 1997.
Stephen E. Eberhardt, Chicago, IL, Robert H. Farley, Jr., Naperville, IL, for Tafford L. Holman.
Steven R. Splitt (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Jerry D. Gilmore in No. 97-1472.
Rita M. Novak, Office of the Attorney General, Steven R. Splitt (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Jerry D. Gilmore in No. 97-1693.
Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.
EASTERBROOK, Circuit Judge.
Tafford Holman is under sentence of death for murder, aggravated by home invasion, kidnapping, sexual assault, robbery, attempted murder, and obstruction of justice by placing a contract on the life of a witness. Holman broke into a home in Joliet, Illinois, shot Anthony Townsend in the head, stole the Townsend family car, and drove off with Antoinette Townsend, Anthony's mother, as his captive. Antoinette begged Holman to get help for her son; he refused and made light of her distress. After reaching Gary, Indiana, Holman pulled the car off the road, ordered Antoinette into the back seat, and sexually molested her. She ran away when a bright light distracted Holman, but he fired four shots at her (two hit their mark) and left her to die. Against the odds, Antoinette survived. After his arrest, Holman offered a friend $2,000 to kill Antoinette so that she could not testify against him. That plan miscarried and became one of the aggravating circumstances that supports the death penalty. Holman concedes entering the Townsend home in the dead of night (although he says that he just wanted to confront Anthony about a supposed slight to Holman's father and that a "Zeich" or "Zeke" was the triggerman), not calling for help, stealing the car, kidnapping Antoinette (he denies molesting her), and shooting at her repeatedly (he says that he did not want to kill her). He concedes offering money and a "piece" for aid in preventing Antoinette from testifying but says that he did not want her slain. The jury was entitled to resolve these disputes in favor of the prosecution, and Holman would have remained a candidate for the death penalty even had the jury resolved all of these disputes in his favor. See Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).
Anthony Townsend died in February 1980. A jury convicted Holman of murder and sentenced him to death, finding several aggravating circumstances and no mitigating circumstances. In June 1984 the Supreme Court of Illinois affirmed the finding of guilt but remanded for a new sentencing after concluding that the prosecutor made an improper closing argument at the penalty trial. People v. Holman, 103 Ill.2d 133, 82 Ill.Dec. 585, 469 N.E.2d 119 (1984). Holman filed a petition for a writ of certiorari, seeking review of an argument concerning the evidence admitted at the trial. The Supreme Court denied this petition on February 19, 1985. 469 U.S. 1220, 105 S.Ct. 1204, 84 L.Ed.2d 347 (1985). Two months later, the Court granted a petition by James K. Batson, who argued that the prosecutor's use of peremptory challenges to remove black members of his venire violated the equal protection clause of the fourteenth amendment. 471 U.S. 1052, 105 S.Ct. 2044, 85 L.Ed.2d 342 (1985). Holman likewise had objected at trial to the prosecutor's use of peremptory challenges to remove black members of the venire, and he renewed this argument in the Supreme Court of Illinois, but he omitted it from the petition for certiorari.
A second jury sentenced Holman to death. After Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was released, the Supreme Court of Illinois ordered the trial court to hold a hearing concerning the peremptory challenges the prosecutor exercised against the venire that produced this sentencing jury. Eventually that claim was rejected on the merits and the death sentence affirmed. People v. Holman, 132 Ill.2d 128, 138 Ill.Dec. 155, 547 N.E.2d 124 (1989). But the court declined to examine the use of peremptory challenges at the original trial, ruling that Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986), foreclosed Holman's request. Allen holds that Batson does not apply to cases that became "final" before Batson was decided. The state court concluded that the denial in 1985 of Holman's petition for certiorari seeking review of his conviction marked the date of "finality" for all issues concerning that trial. 138 Ill.Dec.
at 158-59, 547 N.E.2d at 127-28. The court did, however, consider at length and reject Holman's argument that he had received ineffective assistance of counsel from Paul Bjekich, who represented him at the second sentencing hearing. 138 Ill.Dec. at 166-71, 547 N.E.2d at 135-40.
Next Holman filed a collateral attack in state court. His principal argument was a renewed attack on Bjekich's performance. The trial judge held a hearing and allowed Holman's latest lawyer to explore at length the reasons for Bjekich's strategic and tactical decisions. Satisfied that Bjekich's performance met the constitutional standard, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court denied the petition. This decision, too, was affirmed, and the Supreme Court of Illinois discussed the ineffective-assistance arguments at even greater length than before. People v. Holman, 164 Ill.2d 356, 207 Ill.Dec. 467, 470-77, 647 N.E.2d 960, 963-70 (1995). A further Batson argument was rebuffed on the ground that the decision under attack became "final" before the date the new principle was established. Many other contentions were mulled over and found wanting.
Presently Holman asked the district court to appoint a lawyer under 21 U.S.C. § 848(q)(4)(B), as interpreted in McFarland v. Scott, 512 U.S. 849, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994). The court obliged. Ten months later, on August 1, 1996, Holman filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, raising 35 distinct claims, many with sub-parts (according to the petition, counsel at sentencing was ineffective in 41 ways). The district judge rejected 33 of the claims but issued a writ of habeas corpus on the remaining two: the judge held that Batson applies and that Bjekich rendered ineffective assistance. The judge also issued a certificate of appealability limited to 7 of the 33 rejected claims. We denied a motion to "expand" this certificate to cover all 33 claims. Whether the certificate of appealability limits the issues that may be considered on appeal is a question for another day. We shall have nothing to say on that score, because when declining to expand the certificate we considered the additional issues Holman sought to present and found none to be even arguably meritorious.
Before considering the merits of Holman's arguments, we must decide whether the amendments to § 2254 in the Antiterrorism and Effective Death Penalty Act govern. Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), holds that the new rules apply only to collateral attacks filed after the AEDPA's enactment. Holman's case straddles that line: the request for counsel was filed before April 24, 1996, and the petition for habeas corpus was filed afterward. Holman insists that the motion for appointment of counsel initiates the collateral attack, while the state contends that the formal § 2254 petition is what matters. Both sides find comfort in some language from Lindh and other language from McFarland, but neither opinion was written with this problem in mind, and it is inappropriate to flog the language of either opinion until it confesses to the desired outcome.
Lindh rests on a difference between Chapters 153 and 154 of the Judicial Code. The AEDPA provides that Chapter 154 applies to "cases pending on or after the date of enactment" (110 Stat. 1226) while Chapter 153, which contains § 2254, lacks any provision one way or the other about application to pending cases. The Court took that difference to mean that the changes to Chapter 153 do not apply to pending cases. But what is a "case" for this purpose? Nothing in the AEDPA defines the set of "cases" to which the effective-date rules apply, but the most logical definition is the universe of cases otherwise covered by Chapter 153 (28 U.S.C. §§ 2241-55) or Chapter 154 (28 U.S.C. §§ 2261-66)--which is to say, a collateral attack on a criminal judgment. Prisoners file many other kinds of suits, such as civil rights actions under 42 U.S.C. § 1983, but it would not be a sensible reading of the effective-date clause in Chapter 154 to say that every species of prisoner litigation is a "case pending" for its purpose. A motion under § 848(q)(4) for appointment of counsel is a prelude to a collateral attack under Chapter 153 or 154 but is not itself a collateral attack.
Section 848 is not even in the same title of the United States Code as § 2254. McFarland stresses the difference between the function of § 848(q)(4) and that of § 2254 when observing that counsel may be needed to prepare a petition that will survive summary dismissal; this is why Congress "established a right to preapplication legal assistance for capital defendants" (512 U.S. at 855, 114 S.Ct. at 2572).
Although it is linguistically possible for this "preapplication legal assistance" to open a "case" having some affinity to a petition under § 2254--the Court held in McFarland that a district court that has appointed counsel possesses...
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