Winston v. Boatwright

• Decision Date: 05 October 2011
• Docket Number: No. 10–1156.,10–1156.
• Citation: 649 F.3d 618
• Parties: MC WINSTON, Petitioner–Appellant,v.Ana BOATWRIGHT, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

649 F.3d 618

MC WINSTON, Petitioner–Appellant,

v.Ana BOATWRIGHT, Respondent–Appellee.

No. 10–1156.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 25, 2010.Decided Aug. 19, 2011.Rehearing Denied Oct. 5, 2011.

Brook R. Long (argued), Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner–Appellant.Mark A. Neuser (argued), Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent–Appellee.

Before WOOD, WILLIAMS, and TINDER, Circuit Judges.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, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Norris v. Alabama, 294 U.S. 587, 599, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Neal v. Delaware, 103 U.S. 370, 397–98, 26 L.Ed. 567 (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, 25 L.Ed. 664 (1880); later, attention turned to the race-based use of peremptory challenges by prosecutors. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). More recently, the constitutional prohibition on discrimination in jury selection has been extended beyond race to gender. Moreover, the fact that society as a whole has an interest in the integrity of the jury system has been acknowledged. The anti-discrimination principle is thus not just a privilege of the criminal defendant; it constrains prosecutors, criminal defense lawyers, and civil litigants alike. Intentional discrimination by any participant in the justice system undermines the rule of law and, by so doing, harms the parties, the people called for jury duty, and the public as a whole. See J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (applying Batson to gender-based peremptory strikes); Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (applying Batson to criminal defense counsel); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (applying Batson to civil litigants); Powers v. Ohio, 499 U.S. 400, 405–07, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (describing the harms of discrimination in juror selection); Batson, 476 U.S. at 86–88, 106 S.Ct. 1712. As this case illustrates, however, discrimination in the selection of jurors has not yet been eradicated.

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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.

From there, as Candida would later testify at trial, things escalated. The two returned to the store and began to drink the alcohol while sitting on a mattress in a back storage room. After Candida had consumed a few concoctions of gin and lemonade and Winston drank some beer, Winston began to stroke her hair, but she slapped his hand away. On Candida's account, Winston then removed her clothing, fondled and licked her breasts and genitals, and briefly had sex with her. Winston admits hanging out and drinking alcohol with Candida, but he denies ever touching her in an inappropriate or sexual manner.

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 WIS. STAT. § 948.02(2). Before trial, the state reduced that charge to sexual assault on the basis of sexual contact. The jury, however, failed to reach a verdict, and so the trial court ordered a mistrial. The state then amended the charge to include two counts of second-degree sexual assault—one for sexual contact and one for sexual intercourse. At that point, the court appointed new counsel for Winston; this was the lawyer whose conduct is at issue here. Winston went to trial in September 2002. The second jury, which was composed entirely of women, acquitted Winston of sexual intercourse but found him guilty of unlawful sexual contact. After his motion for a new trial was denied and with his third appointed attorney, Winston appealed his conviction, which the Wisconsin Court of Appeals affirmed. State v. Winston, No. 03–3412–CR, 2004 WL 1982229 (Wis.Ct.App. Sept. 8, 2004) (unpublished) ( Winston I ). The Wisconsin Supreme Court summarily denied Winston's petition for review. State v. Winston, 278 Wis.2d 537, 693 N.W.2d 76 (2005).

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 because “she learned from trial counsel that the reason he struck the male jurors is because he thought that the female jurors would be more critical of the victim.” The state post-conviction court denied relief because it found that striking the female jurors was “trial counsel's strategy” and “reasonable under the circumstances.”

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, 104 S.Ct. 2052). 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, 304 Wis.2d 609, 741 N.W.2d 239 (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 if so, whether a new trial should be ordered.” See 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 336–41, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (describing standards for granting a certificate of appealability in Batson case). The district court appointed counsel, and this appeal followed.

II

A

Our review of Winston's petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, which “tightly constrains the availability of the writ.” Stock v. Rednour, 621 F.3d 644, 649 (7th Cir.2010). We may grant relief to Winston “only if the state court's decision was...