Freeman v. Chandler
| Citation | 645 F.3d 863 |
| Decision Date | 20 June 2011 |
| Docket Number | No. 10–1467.,10–1467. |
| Parties | Joe FREEMAN, Petitioner–Appellant,v.Nedra CHANDLER, Warden, Dixon Correctional Center, Respondent–Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
645 F.3d 863
Joe FREEMAN, Petitioner–Appellant,
v.
Nedra CHANDLER, Warden, Dixon Correctional Center, Respondent–Appellee.
No. 10–1467.
United States Court of Appeals, Seventh Circuit.
Argued March 31, 2011.Decided June 20, 2011.
[645 F.3d 865]
Drew R. Haase (argued), Attorney, Jenner & Block LLP, Chicago, IL, for Petitioner–Appellant.Garson Fischer (argued), Attorney, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.Before CUDAHY, POSNER and MANION, Circuit Judges.CUDAHY, Circuit Judge.
Petitioner Joe Freeman appeals from the district court's denial of his Rule 60(b) motion as a successive habeas corpus petition over which the court lacked jurisdiction. Whether or not his motion may be treated as a successive petition, we nevertheless elect to affirm the denial of habeas relief on the merits.
We briefly outline the facts relevant to our consideration of Freeman's habeas petition. In so doing, we rely on the Illinois Appellate Court's discussion on Freeman's direct appeal,1 which we may presume correct pursuant to 28 U.S.C. § 2254(e)(1).
The relevant events began at the Cook County Criminal Courts Building on California Avenue, where Freeman was facing charges of aggravated battery and attempted murder. The events underlying those charges occurred on June 27, 2000, and the victim was Charles Gregory. On November 8, 2000, Freeman visited the courthouse, apparently to check the status of that case. Charles Gregory was there as well with his friend Richard Tyler. An argument erupted, wherein Freeman accused Gregory of pressing a false attempted murder charge. Gregory left the courthouse with Tyler, and as they were walking on the sidewalk a car pulled up alongside them and Freeman emerged. Freeman shot Gregory three times, hitting his chest, forearm and shoulder; Tyler escaped. In connection with this second attempt on Charles Gregory's life, Freeman was charged with attempted murder and tried in the Illinois Circuit Court for Cook County. (For reasons apparently irrelevant to our case, the state nolle prosequied Freeman's initial assault and attempted murder charges.)
Freeman's Cook County bench trial was marked by the procedural oddity that his counsel testified in his defense. This occurrence is the focal point of Freeman's
[645 F.3d 866]
habeas case, so we recount the circumstances in detail.
One of Freeman's two attorneys, Robert Nemzin, testified to an event that allegedly occurred at the California Avenue courthouse on November 8 (the same day as the shooting underlying the present case) while Nemzin was serving as counsel to Freeman with respect to Freeman's initial assault and attempted murder charges. Allegedly, Charles Gregory approached Nemzin and stated, “[t]here [are] two forms of compensation. Either, one, your client can go to the joint, or the other is open for negotiation. What's the deal?”
Nemzin continued to represent Freeman in connection with his attempted murder charge for the November 8 shooting. At that trial, Nemzin proposed to testify about his November 8 interaction with Gregory, and the judge decided to allow it. Nemzin's co-counsel and law partner, Mr. Hickey, elicited testimony related to Nemzin's interaction with Gregory. Nemzin also testified in relation to his possession of a couple of McDonald's receipts, significant in connection with Freeman's defense.
Following Nemzin's testimony, Nemzin conducted direct examination of Freeman. But before Freeman testified in his own defense, the judge engaged in a lengthy colloquy with him, which we reproduce in relevant part:
The Court: Mr. Freeman, you want Mr. Nemzin to continue as your attorney.
Freeman: Yes.
The Court: No complaints about Mr. Hickey or Mr. Nemzin?
Freeman: No, your Honor.
The Court: No complaints, whatsoever, about Mr. Nemzin being a witness and now acting as your attorney?
Freeman: No, your Honor.
Freeman was convicted of attempted murder, and the court sentenced him to a 25–year term of incarceration.
Freeman appealed directly from his bench trial, raising inter alia the argument that there had been no proper waiver of conflict-free counsel. The state appellate court affirmed. No. 1–03–0059 (Ill.App.Ct. July 27, 2004). The Illinois Supreme Court denied him leave to appeal. People v. Freeman, 213 Ill.2d 566, 293 Ill.Dec. 865, 829 N.E.2d 790 (Ill.2005). Freeman initiated post-conviction proceedings in the Circuit Court for Cook County, but that court denied him relief, ruling that his claims were barred by res judicata. The appellate court affirmed, No. 1–05–1430 (Ill.App.Ct. May 16, 2006), and the Illinois Supreme Court again declined to hear the case, 222 Ill.2d 584, 308 Ill.Dec. 328, 861 N.E.2d 659 (Ill.2006).
Freeman then filed a federal habeas corpus petition in the district court in May of 2007. In his habeas petition prepared by counsel, Freeman did not articulately complain about deprivation of conflict-free counsel. The one indicated reason he urged for granting the habeas petition was that “[t]he [Illinois] Appellate Court erred when it held defendant knowingly waived counsel of his choice.” But later in his discussion, he also stated, “[t]he conversation between the court and the defendant did not constitute a sufficient knowing and intelligent waiver of defendant's right to a conflict-free counsel and of counsel of his choice.”
The district court denied Freeman's habeas petition. Freeman v. Hulick, No. 07–CV–2927, 2009 WL 1851141, 2009 U.S. Dist. LEXIS 55632 (N.D.Ill. June 29, 2009). In so doing, the court took an ambivalent posture with respect to Freeman's conflict-free counsel argument. In its second footnote, the court stated,
[645 F.3d 867]
“Freeman's situation seems better suited to an argument that Freeman did not properly waive his right to conflict-free counsel. This is not, however, the issue that Freeman, who is represented by counsel, has raised.” One would expect that this aside would be the last mention of the supposedly unpreserved issue. But the court went on to discuss the substance of Freeman's conflict-free counsel argument for several paragraphs, stating for instance, “although an attorney acting as both defense counsel and as a witness is problematic, Nemzin's potential conflict of interest was minimal.” This discussion appeared under a heading entitled, “Waiver.”
Freeman filed a pro se motion pursuant to Federal Rule of Civil Procedure 60, “Relief from Judgment or Order,” alleging that his attorney had failed to properly raise the issue of conflict-free counsel, and he wished the court to decide it. The court ruled that the motion was a successive petition within the meaning of 28 U.S.C. § 2244(b), because it asserted new claims of errors in Freeman's state conviction but was not based on new facts or law. The court therefore ruled that it lacked jurisdiction and denied his requested relief.
We granted Freeman a certificate of appealability from the denial of his self-styled Rule 60(b) motion on the following issues:
(1) Whether Freeman's Rule 60(b) motion was an unauthorized successive collateral attack;
(2) Whether the district court should have reopened the judgment on the ground that it mistakenly failed to identify all of Freeman's claims; and
(3) Whether Freeman was denied his right to conflict-free counsel.
The Supreme Court has recently visited the question whether a Rule 60(b) motion for “Relief from Judgment” is properly treated as a successive petition in habeas cases in Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). The Court noted that the Rules of Civil Procedure apply in habeas proceedings only to the extent they are not inconsistent with federal statutory provisions and rules. Id. at 529, 125 S.Ct. 2641 (citing 28 U.S.C. § 2254 Rule 11). So where a Rule 60(b) motion raises arguments forbidden...
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