581 F.3d 614 (7th Cir. 2009), 08-1404, Sutherland v. Gaetz

Docket Nº:08-1404.
Citation:581 F.3d 614
Opinion Judge:BAUER, Circuit Judge.
Party Name:William Riley SUTHERLAND, III, Petitioner-Appellant, v. Donald GAETZ, Warden, Respondent-Appellee.
Attorney:Robert J. Palmer, Christopher Deckard, Law Student (argued), May, Oberfell & Lorber, Mishawaka, IN, for Petitioner-Appellant. Retha Stotts (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.
Judge Panel:Before EASTERBROOK, Chief Judge, and BAUER and FLAUM, Circuit Judges.
Case Date:September 14, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 614

581 F.3d 614 (7th Cir. 2009)

William Riley SUTHERLAND, III, Petitioner-Appellant,

v.

Donald GAETZ, Warden, Respondent-Appellee.

No. 08-1404.

United States Court of Appeals, Seventh Circuit.

September 14, 2009

Argued May 15, 2009.

Robert J. Palmer, Christopher Deckard, Law Student (argued), May, Oberfell & Lorber, Mishawaka, IN, for Petitioner-Appellant.

Retha Stotts (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before EASTERBROOK, Chief Judge, and BAUER and FLAUM, Circuit Judges.

BAUER, Circuit Judge.

William Riley Sutherland, III was tried before a jury in an Illinois state court on charges of attempted first-degree murder, aggravated battery with a firearm and home invasion. On the third day of trial, Sutherland's defense counsel was held in contempt and jailed overnight. Defense counsel returned to court the next morning and represented Sutherland through the conclusion of trial, at which time a jury found Sutherland guilty of all charges. In his direct appeal and again throughout post-conviction proceedings, Sutherland claimed that he was denied the assistance of counsel because the jailing of his attorney prevented the preparation of his defense. After those challenges were unsuccessful, Sutherland sought a writ of habeas corpus in federal court under 28 U.S.C. § 2254. The district court denied his petition, a decision which Sutherland now appeals and we affirm.

Page 615

I. BACKGROUND

On the third day of Sutherland's five-day jury trial, defense counsel thrice violated a court order barring him from eliciting testimony regarding exculpatory statements Sutherland made to police. After the third violation, the court called an evening recess and ordered counsel jailed overnight.

The next morning, the trial resumed; defense counsel presented its entire case, including Sutherland's testimony. On the fifth and final day of trial, the State called one rebuttal witness, and the parties presented closing arguments. At the conclusion of trial, Sutherland was convicted of two counts each of attempted first-degree murder, aggravated battery with a firearm and home invasion.

Sutherland first objected to his counsel's overnight incarceration in a motion for mistrial filed approximately one month after his conviction. In a supporting affidavit, defense counsel described his experience at the Cook County Jail. Counsel alleged that Sutherland was unable to communicate with him during his incarceration. Further, defense counsel stated that he was able to sleep for only three hours during the overnight recess and, as a result, returned to court the next day sleep-deprived and devoid of the mental clarity to adequately present Sutherland's case. According to counsel, he lacked the " presence of mind" to request either a mistrial or continuance when the trial resumed the following day. The trial court denied the motion.1

On direct appeal, Sutherland raised numerous challenges, including a claim that his counsel's overnight incarceration amounted to a constructive denial of his Sixth Amendment right to counsel. In affirming his conviction, the Illinois Appellate Court noted that Sutherland did not contend that defense counsel asked to confer with Sutherland during his night of incarceration, that Sutherland requested to see his counsel that night, or that such a request was denied by jail authorities. People v. Sutherland, 317 Ill.App.3d 1117, 252 Ill.Dec. 851, 743 N.E.2d 1007, 1015 (2000). Therefore, the court reasoned, Sutherland could not prove that he was denied his right to the assistance of counsel. Id.

Thereafter, Sutherland filed a pro se petition for post-conviction relief in the state trial court in...

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