Prihoda v. McCaughtry

Decision Date14 August 1990
Docket NumberNo. 89-3479,89-3479
Citation910 F.2d 1379
PartiesRobert PRIHODA, Petitioner-Appellant, v. Gary R. McCAUGHTRY, Warden, Waupun Correctional Institution, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Mark J. Rogers, Angermeier & Rogers, Milwaukee, Wis., for petitioner-appellant.

Donald J. Hanaway, Atty. Gen., Marguerite M. Moeller, Asst. Atty. Gen., Wisconsin Dept. of Justice, Madison, Wis., for respondent-appellee.

Before CUDAHY and EASTERBROOK, Circuit Judges, and SNEED, Senior Circuit Judge. *

EASTERBROOK, Circuit Judge.

Patrick Rogers assembled a team to rob Bryant's Cocktail Lounge in Milwaukee. He recruited Robert Cranmore, Brian Rolf, and Robert Prihoda to do the job, and his girlfriend agreed to drive the getaway car. All four armed themselves, and in the early morning hours of August 17, 1975, they burst into the bar. Rogers and Rolf commandeered the lounge on the first floor; Cranmore and Prihoda were assigned to the bar on the second floor. All four terrorized the bartenders and patrons by brandishing weapons and threatening immediate death to all who did not hand over their valuables.

Gerald Drefahl and Dennis O'Bradovich, two off-duty policemen, were on the first floor when the robbers entered. O'Bradovich was accompanied by his fiancee, celebrating their engagement. All three prostrated themselves as the gunmen demanded. O'Bradovich surreptitiously drew his revolver and, thinking that he was sheltered by the bar, demanded that the intruders surrender. A gun battle ensued. O'Bradovich retreated into the vestibule. Cranmore and Prihoda charged down the stairs, guns blazing. Cranmore got an angle on O'Bradovich and put a bullet through his head. Four desperadoes pumped ten slugs into O'Bradovich. He never regained consciousness. Other officers, alerted by a silent alarm, appeared as the robbers emerged from the tavern. Rolf gave up; Rogers was shot as he fled. Cranmore and Prihoda got away but were tracked down within hours. All four were convicted of first degree murder and armed robbery, and each was sentenced to life imprisonment.

Rogers, Rolf, and Cranmore appealed, and the court of appeals affirmed in an exhaustive opinion. Cranmore v. State, 85 Wis.2d 722, 271 N.W.2d 402 (1978). Prihoda escaped from prison, so the court did not consider his appeal. After being recaptured, Prihoda filed in 1980 an application for collateral relief. The only ground given was that pattern jury instruction 1100, which had been given at the trial, shifted to the defendants the burden of showing that they did not intend O'Bradovich's death. The other three defendants made this argument on direct appeal and lost, 85 Wis.2d at 770-71, 271 N.W.2d 402, so it is no surprise that Prihoda lost too.

He tried again in 1985, this time raising a battery of arguments, including challenges to the adequacy of his counsel at trial and the voluntariness of his plea of guilty to the charge of armed robbery. He lost again, this time on the basis of Wis.Stat. Sec. 974.06(4), which provides:

All grounds for relief available to a prisoner ... must be raised in his original, supplemental or amended motion [for collateral relief]. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the prisoner has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

Prihoda, represented by counsel in 1985, argued that lack of legal assistance in 1980 was a "sufficient reason" for a second motion despite failure to raise all grounds in the first. The court of appeals disagreed and rejected the petition without reaching the merits. The Supreme Court of Wisconsin denied review without opinion, 134 Wis.2d 458, 401 N.W.2d 10 (1987). Prihoda's petition in federal court under 28 U.S.C. Sec. 2254 failed largely because of the state court's invocation of a procedural ground. The district judge held that Prihoda has not established "cause" for the forfeiture in state court. Although Prihoda preserved his challenge to instruction 1100, three opinions of this court hold that this instruction is not unconstitutional. Pigee v. Israel, 670 F.2d 690 (7th Cir.1982); Dean v. Young, 777 F.2d 1239 (7th Cir.1985); Fencl v. Abrahamson, 841 F.2d 760 (7th Cir.1988). Pigee, Dean, and Fencl did not leave much room for Prihoda to maneuver, so the district court dismissed his petition.

I

Prihoda asks us to overrule Pigee, Dean, and Fencl, but it would do him no good if we did. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Prihoda's constitutional argument stems from Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), which was decided two years after his conviction became final. Pigee, Dean, and Fencl show that "a state court considering [Prihoda's] claim at the time his conviction became final would [not] have felt compelled by existing precedent to conclude that the rule [Prihoda] seeks was required by the Constitution." Saffle v. Parks, --- U.S. ----, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990). Any federal decision holding instruction 1100 unconstitutional therefore would be a new rule for purposes of Teague and could not be applied on collateral review. See also Sawyer v. Smith, --- U.S. ----, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990).

At all events, instruction 1100 is next to irrelevant to Prihoda's conviction. Two theories supported his culpability: that he fired at O'Bradovich intending the officer's death, and that he aided and abetted Cranmore, who fired the fatal shot through the officer's brain. Instruction 1100 was pertinent to the former theory but not the latter. It is inconceivable that the jury would have used instruction 1100 to convict on the basis of Prihoda's own intent while believing that Prihoda was not culpable as an associate of Cranmore. Any error is harmless beyond a reasonable doubt. Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

II

Wisconsin contends that all of Prihoda's remaining arguments were forfeited by his failure to present them when first seeking collateral relief in 1980. So the state's court of appeals held. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), which holds that forfeiture in state court blocks review in federal court only when it meets the conditions of the independent-and-adequate-state-ground doctrine, potentially presents Prihoda with three ways to avoid the conclusion of the state court.

1. A state ground is "independent" only if the state court actually relied on a state rule sufficient to justify its decision. Harris holds that a federal court may be sure that the state relied on a sufficient procedural ground only if the state court says so. Which state court? Wisconsin's court of appeals invoked a state ground explicitly and exclusively, but the Supreme Court of Wisconsin denied review without stating reasons. One court of appeals has held that when the highest state court that has examined the case does not give reasons, the decision of the state's judicial system as a whole does not rest on an independent state ground. Nunnemaker v. Ylst, 896 F.2d 1200 (9th Cir.1990). Nunnemaker was amended on May 25, 1990, to limit its scope, but even as amended holds that in at least some circumstances the highest court's silence prevents the state from invoking a procedural bar even though an inferior court relied explicitly on procedural grounds. So an unexplained rebuff by the state's supreme court, or a summary affirmance by an intermediate court, may abandon all state grounds of decision.

Three other courts of appeals hold, to the contrary, that the state court whose explanation matters is the last to write an opinion. Harmon v. Barton, 894 F.2d 1268, 1272-74 (11th Cir.1990); Evans v. Thompson, 881 F.2d 117, 123 n. 2 (4th Cir.1989); Ellis v. Lynaugh, 873 F.2d 830, 838 (5th Cir.1989). We agree with these decisions. Harris requires a plain statement of a procedural ground, not to tell state courts whether or how to write opinions, but to ensure that the federal court knows whether the state is relying on its own law as the basis of decision. Once a state court has supplied the necessary plain statement, a federal court understands the basis of decision. Unexplained affirmances or denials of discretionary review do not retract a state-law basis of decision already given.

Harris implements the rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), that a procedural default bars federal review unless there is cause for and prejudice from that default. Like other doctrines controlling the scope of collateral review, Sykes is based on principles of comity and economy. Neither is served by supposing that a silent affirmance or denial of relief withdraws a sufficient state-law reason already given. The rules concerning independent and adequate state grounds evolved in cases in which the Supreme Court reviews judgments of state courts under its appellate jurisdiction. Harris applies to collateral attacks the principles developed in these cases, especially Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). When reviewing the judgment of a state court, the Supreme Court examines the opinion given by the highest state court that has supplied an explanation. It looks straight through a denial of discretionary review, on the authority of 28 U.S.C. Sec. 1257(a), which speaks of the final judgment "rendered by the highest court of a State in which a decision could be had"--that is, the highest court that has rendered decision on the merits. Sullivan v. Texas, 207 U.S. 416, 28 S.Ct. 215, 52 L.Ed. 274 (1908); ...

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