96 F.3d 856 (7th Cir. 1996), 95-3608, Lindh v. Murphy

Docket Nº:95-3608.
Citation:96 F.3d 856
Party Name:Aaron LINDH, Petitioner-Appellant, v. James P. MURPHY, Warden, Respondent-Appellee.
Case Date:September 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 856

96 F.3d 856 (7th Cir. 1996)

Aaron LINDH, Petitioner-Appellant,

v.

James P. MURPHY, Warden, Respondent-Appellee.

No. 95-3608.

United States Court of Appeals, Seventh Circuit

September 12, 1996

Argued April 9, 1996.

Reargued En Banc June 17, 1996.

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Keith A. Findley, Office of the State Public Defender, Madison, WI, James S. Liebman (argued), New York City, for Petitioner-Appellant.

Sally L. Wellman (argued), Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Barry Levenstam, Jerold S. Solovy, Ellen R. Kordik, Charles B. Leuin, Jenner & Block, Chicago, IL, Roberta Cooper Ramo, American Bar Association, Chicago, IL, for American Bar Association, Amicus Curiae.

David E. Jarvis, Jeffrey O. Davis, Mitchell S. Moser, Quarles & Brady, Milwaukee, WI, George H. Kendall, New York City, for Nicholas J. Bua, Marvin E. Frankel, Susan Getzendanner, John H. Gibbons, A. Leon Higginbotham, Shirley M. Hufstedler, George N. Leighton, Philip W. Tone, Harold R. Tyler, Jr., Amici Curiae.

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Before POSNER, Chief Judge, and CUMMINGS, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE P. WOOD, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

In January 1988 Aaron Lindh marched into the City-County Building of Madison, Wisconsin, and shot three strangers for no apparent reason. Two died. Lindh pleaded guilty to carrying and using a firearm in a public building; a jury convicted him of two murders and one attempted murder. During the second phase of a bifurcated proceeding, Lindh argued that he was insane at the time of the shootings, which under Wisconsin law would alter the place of his confinement (from a prison to a prison-hospital) and entitle him to release if at some future time he should be deemed "recovered." But the jury found that Lindh did not have a mental disease when he pulled the trigger, and the judge sentenced him to life plus 35 years in prison.

Lindh's principal contention on appeal was that the judge unduly restricted his cross-examination of Dr. Leigh Roberts, a psychiatrist who interviewed him on the day of the shootings (and several times thereafter) and testified for the prosecution during the second phase of the trial. During March 1988 Roberts learned that he was under investigation for engaging in improper sexual conduct with a female patient; in May 1988 Roberts learned that the Medical Examining Board was looking into allegations made by three female patients. By the time of trial in September 1988 a criminal investigation was ongoing--conducted by the Milwaukee County District Attorney, acting as a special prosecutor after the Dane County District Attorney (whose jurisdiction includes Madison) recused himself. Lindh's attorney sought to explore the allegations made against Roberts, contending that the pending investigation would give Roberts a reason to slant his testimony in the prosecution's favor. Lindh did not argue that Roberts had entered into discussions with the prosecutor about the sexual misconduct allegations; any plea agreement or negotiations in progress would have been subjects of cross-examination under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Instead Lindh argued that even if the Dane County prosecutor could not provide a quid pro quo by forgoing charges or reducing their severity, he might put in a good word with the Milwaukee prosecutor; and whether or not lenity was in the cards, Roberts might believe that he had something to gain from helping to convict Lindh, which could color his analysis and testimony. Lindh argued that both state law and the Confrontation Clause of the Sixth Amendment, applied to the states by the due process clause of the Fourteenth, entitled him to cross-examine Roberts about all potential sources of bias. See Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984); Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

The trial judge foreclosed inquiry into this subject (although he permitted extensive cross-examination on other matters), the court of appeals reversed, State v. Lindh, 156 Wis.2d 768, 457 N.W.2d 564 (Wis.App.1990), and the Supreme Court of Wisconsin reversed in turn, reinstating the sentences, State v. Lindh, 161 Wis.2d 324, 468 N.W.2d 168 (1991). The state's highest court concluded that the possibility of bias was so remote, given the appointment of a special prosecutor, and the prospect of diverting attention to the sexual encounters (a subject of no relevance to Lindh's sanity) sufficiently great, that the trial judge did not abuse the discretion he possessed under both state and federal law. Justice Abrahamson dissented on state-law grounds. 468 N.W.2d at 185-89. Lindh then commenced a collateral attack in federal court. The district court denied the petition, writing that it "agrees wholeheartedly with the analysis of" the state's Supreme Court. Lindh appealed to this court.

Fifteen days after a panel heard oral argument, the President signed the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214. Section 104 of the new statute amends 28 U.S.C. § 2254, the law under which Lindh seeks relief.

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Unaffected by the 1996 Act, § 2254(a) provides that a writ of habeas corpus may issue "on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." It does not further elaborate. Federal courts exercising their authority under § 2254(a) disregarded the state courts' legal conclusions and reached independent judgments on issues presented to them. Brown v. Allen, 344 U.S. 443, 458, 73 S.Ct. 397, 407-08, 97 L.Ed. 469 (1953). Section 104(2) of the 1996 Act redesignates the former § 2254(d), which deals with state courts' findings of fact, as § 2254(e); § 104(3) of the 1996 Act, 110 Stat. 1219, adds a new § 2254(d) that for the first time specifies the appropriate treatment of legal determinations by state courts:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

We set this case for reargument before the full court in order to decide whether the new provision applies to pending cases and, if it does, how it affects them. We invited and received supplemental briefs from the parties, and we have had the benefit of briefs from the American Bar Association and a group of former federal judges as amici curiae.

I

Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), lays out a sequence of issues. First we must decide whether Congress has decided to which cases a new law applies; if it has, the only task is to follow the statute. If Congress has not provided one way or the other, we must apply the law in force at the time of decision--which is to say, the new § 2254(d)--unless "the new provision attaches new legal consequences to events completed before its enactment." 511 U.S. at ----, 114 S.Ct. at 1499. But what is a "new legal consequence"? Landgraf says that not every change in outcome counts; it matters whether the party adversely affected by the change has legitimate reliance interests in the operation of the former law.

A

Has Congress answered the question at hand? Not directly. Section 104 of the 1996 Act lacks an effective-date provision. Lindh contends that Congress addressed the subject indirectly, by providing that the new Chapter 154 of Title 28 (28 U.S.C. §§ 2261-66), captioned Special Habeas Corpus Procedures in Capital Cases and contained in § 107(a) of the 1996 Act, applies "to cases pending on or after the date of enactment of this Act." Section 107(c), 110 Stat. 1226. This establishes, Lindh submits, that §§ 101 to 106 of the statute do not apply to pending cases.

"Establishes" is too strong a word. Sections 101 to 106 amend Chapter 153 of Title 28. Nothing in the 1996 Act provides one way or another for the temporal extent of the changes. Do they govern collateral attacks arising out of crimes committed after April 24, 1996? Convictions after that date? Appellate decisions after that date? Collateral attacks filed after that date? The statute is silent. Congress addressed those issues for Chapter 154, but not Chapter 153. There is at most a negative implication. Should we draw it? A competing inference is that Congress could not agree on an effective-date provision for the amendments to Chapter 153, leaving the subject to judicial resolution. Perhaps instead Congress overlooked the subject when drafting §§ 101-106 (the changes to Chapter 153 and the new Chapter 154 originated in different Houses of Congress at different times)--or recognized its importance but thought the answer so clear that express provision was unnecessary. Which understanding is superior?

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Potential negative implications of effective-date provisions have been urged before, most recently in Landgraf. The Civil Rights Act of 1991 provides that "[e]xcept as otherwise specifically provided, this...

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