Hall v. Zenk

Decision Date29 August 2012
Docket NumberNo. 11–3911.,11–3911.
Citation692 F.3d 793
PartiesVirgil HALL, III, Petitioner–Appellee, v. Michael ZENK, Superintendent, Respondent–Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Joseph M. Cleary (argued), Attorney, Collignon Dietrick, P.C., Indianapolis, IN, for PetitionerAppellee.

James Blaine Martin (argued), Attorney, Office of the Attorney General, Indianapolis, IN, for RespondentAppellant.

Before POSNER, FLAUM, and WILLIAMS, Circuit Judges.

FLAUM, Circuit Judge.

In February 2001, Virgil Hall III was convicted in an Indiana state court of murdering his stepson. Shortly after his verdict came down, Hall discovered that one of the jurors in his case had a son that was a fellow inmate of his. Hall further learned that before his trial, the juror's son informed the juror that Hall was likely innocent, but during the trial, the juror found out that his son and several co-inmates changed their mind about Hall, and thought him guilty. The juror relayed this extraneous information to several jurors. Upon making these discoveries, Hall filed a motion to correct error, arguing that he was not afforded an impartial jury that decided his case strictly upon the evidence presented. The state court rejected Hall's motion, and Hall was further denied at the appellate level on direct appeal. After seeking collateral relief in Indiana to no avail, Hall filed a habeas petition in the Northern District of Indiana, arguing, inter alia, that the State should have carried the burden of proving that the extraneous information that reached his jury was not prejudicial. The district court granted Hall's habeas petition based on our precedent of Wisehart v. Davis, 408 F.3d 321 (7th Cir.2005), and the State now appeals. For the following reasons, we vacate the ruling of the district court and remand for further proceedings.

I. Background

In December 1999, Hall married Kelli Fetterhoff and became the stepfather of Fetterhoff's kids—Peyton Fetterhoff (age 3) and Hunter Fetterhoff (age 5). Hall and Fetterhoff also had a child together in April 2000Devon Hall. In May 2000, Fetterhoff went into town to run errands with Devon, and Hall was left with Hunter and Peyton. Around 11:00 a.m., Hall telephoned the deputy chief of the fire department,asking him for assistance with his stepson Peyton, who, Hall claimed, fell off a swing. When the deputy chief arrived at Hall's home, he realized that Peyton was very severely injured, and told Hall to call an ambulance. When Peyton arrived at the hospital, a doctor discovered that he had several serious injuries, including a fractured skull and damage to his torso, and that he was lethargic, unresponsive to commands, and had deviated eyes. Peyton was therefore airlifted to a hospital in Indianapolis. He eventually died due to swelling in his brain.

An autopsy on Peyton's body was conducted, and it revealed that he suffered at least three separate injuries to his head, a severe injury to his chest, another to his abdomen, a sixth to his scrotum, and a laceration to the ligament that holds his head to his cervical spine. Hall was eventually charged with murder and neglect of a dependent resulting in serious bodily injury.

At trial, Hall changed his story. He suggested that Peyton was sitting on a workbench while Hall was fixing his weed eater and that he accidentally knocked Peyton off the workbench when he yanked on an extension cord to eliminate a knot. He also claimed that Peyton hit a dog cage before he fell to the ground. He explained his prior story about Peyton falling off a swing by suggesting that he did not want to be viewed as a bad father for having knocked his stepson off of a workbench accidentally.

Several doctors testified at trial, debating the possibility that Peyton's injuries could have been caused by the fall described by Hall and the likelihood that punches or kicks caused the injuries instead. Hall was eventually found guilty of both murder and neglect and sentenced to sixty-five years in prison. After the trial, Hall filed a motion to correct error due to jury misconduct. Hall attached an affidavit to his motion suggesting that a juror was given improper information about Hall's trial from several third parties. More specifically, the affidavit suggested that David Daniels, a juror, had a son that was incarcerated at the same facility as Hall, and that Daniels' son told Daniels at the beginning of trial that he thought Hall was innocent. Further along in the trial, Daniels overheard his wife tell another family member that their son and several other members of the cell block no longer believed Hall to be innocent. The affidavit submitted by Hall to the court also suggested that Daniels shared this information with the rest of the jury. In response to this motion, the State submitted several affidavits in an attempt to cast doubt on whether the extraneous information ever actually reached the jury, but all courts to consider this matter have determined that the information did reach at least some jurors. The State has not, at this stage, given us any reason to doubt those findings.

After filing his motion to correct error, Hall moved to depose all members of the jury, but the trial court denied this motion, and an interlocutory appeal on the matter to the Court of Appeals of Indiana affirmed this decision. The Indiana courts' denials of Hall's request to depose the jury were based on two points: (1) under both Indiana and federal law, jurors cannot testify about the basis for their decision or whether extraneous information had an impact on their decision; and (2) there was already evidence that the extraneous information actually reached the jury by way of Daniels.

Hall's case was therefore sent back to the Indiana trial court for a hearing to determine whether the extraneous information caused him prejudice. The court ruled that extrinsic communications concerning a contested matter did, in fact, reach the jury, but that Hall was not prejudiced. On direct appeal, Hall argued that the State should have had the burden to prove that the extraneous information inserted by Daniels did not prejudice Hall. The appellate court expressed its discomfort with Indiana law, suggesting that the burden should be on the State to prove that improper, extraneous information that reaches the jury did not cause prejudice to a defendant. The court nonetheless believed itself to be bound by Indiana Supreme Court precedent, which stated that the burden is on the defendant to show that he was actually prejudiced by an intrusion upon the jury before a new trial can be granted. See Griffin v. State, 754 N.E.2d 899, 901 (Ind.2001). Because the appellate court was not permitted to consider any testimony from jurors regarding their perception of the effect of the extraneous information, the court believed that it had a dearth of information upon which to rule, and found against Hall simply because the burden was on him to prove prejudice.

Hall's next move was to seek post-conviction relief through Indiana's court system. He exhausted all possible post-conviction avenues in Indiana, and then filed a habeas corpus petition in the federal district court in the Northern District of Indiana. Hall included several arguments as to why his conviction should be thrown out, but only one is pertinent to this appeal. Hall argued that the Indiana courts contravened clearly established federal law handed down by the Supreme Court (as required for a habeas petition under 28 U.S.C. § 2254) when they gave Hall the burden of showing that improper communications with a juror in his case resulted in actual prejudice. He argued that Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), made it constitutionally necessary to place the burden on the State to show that improper communications with a juror were not prejudicial to the defendant, and that our case of Wisehart v. Davis, 408 F.3d 321 (7th Cir.2005), dubbed Remmer's holding to be “clearly established.” The district court found that it was hard to justify a finding that Remmer's holding was still the clearly established law in this area, given the language of subsequent Supreme Court cases as well as a circuit split on the continued viability of Remmer, but that Wisehart nonetheless required the district court to deem the holding clearly established. Thus, according to the district court, the Indiana courts ruled contrary to clearly established federal constitutional law. Further, the district court found that the error was not harmless, and thus Hall's habeas petition was granted. The court also held that even though Remmer only requires a hearing to determine prejudice, during which the State carries the burden of proof, the Court of Appeals of Indiana observed that the State would not have been able to carry its burden if it had needed to do so. The district court considered this finding reasonable, and thus deferred to the state court in granting Hall either his release or a retrial. The State now appeals, asking us to find that the Indiana courts did not contravene clearly established federal law.

II. Discussion

In reviewing rulings on a petition for habeas relief, we are restricted to the question of whether a conviction violated “the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); see also28 U.S.C. § 2254(a). We review all questions of law de novo and all factual determinations for clear error. Atkins v. Zenk, 667 F.3d 939, 943 (7th Cir.2012). Our review is guided, however, by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), since Hall's trial took place after AEDPA was enacted. Despite an argument to the contrary in the district court, Hall concedes that the Indiana courts ruled on the merits on his current constitutional challenge to his conviction, and thus this habeas case falls under...

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