Ben-Yisrayl v. Davis

• Decision Date: 13 December 2005
• Docket Number: No. 03-3169.,03-3169.
• Parties: Obadyah BEN-YISRAYL, Petitioner-Appellee, v. Cecil DAVIS, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

431 F.3d 1043

Obadyah BEN-YISRAYL, Petitioner-Appellee, v. Cecil DAVIS, Respondent-Appellant.

No. 03-3169.

United States Court of Appeals, Seventh Circuit.

Argued October 27, 2004.

Decided December 13, 2005.

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John N. Gallo, Kelly Huggins (argued), Sidley Austin Brown & Wood, Chicago, IL, for Petitioner-Appellee.

James B. Martin (argued), Andrew K. Kobe, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellant.

Before FLAUM, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

An Indiana jury convicted Obadyah Ben-Yisrayl, formerly known as Christopher Peterson, of murdering Harchand Dhaliwal and Marie Meitzler. After the Indiana Supreme Court affirmed Ben-Yisrayl's conviction and sentence on direct appeal and denied Ben-Yisrayl collateral relief, the district court granted his petition for writ of habeas corpus. On appeal, we find the Indiana Supreme Court's determination that the prosecutor did not violate Ben-Yisrayl's Fifth Amendment rights during his closing argument to be an unreasonable determination in light of the evidence. In addition, we find the state court's determination of the constitutional error in Ben-Yisrayl's case an unreasonable application of clearly-established, federal law. We, therefore, affirm the judgment of the district court.

I. BACKGROUND

This case involves the murders of Harchand Dhaliwal and Marie Meitzler in December, 1990. On January 28, 1991, the Lake County, Indiana police arrested Antwion McGee in connection with a separate shooting and car theft. Based on statements McGee made while in custody, the police then arrested and interviewed Ben-Yisrayl on January 29 in connection with the separate shooting and car theft. During the ensuing police interview, Ben-Yisrayl further implicated McGee in the crimes. Once confronted with Ben-Yisrayl's statements, McGee accused Ben-Yisrayl of being involved with the Dhaliwal and Meitzler killings and led police to Ben-Yisrayl's former home, where police found a sawed-off shotgun and shotgun shells in Ben-Yisrayl's bedroom.

The police confronted Ben-Yisrayl with McGee's statements and the discovery of the shotgun in his closet. Before the confrontation, however, the police read Ben-Yisrayl his Miranda rights, and after the confrontation, the police allowed Ben-Yisrayl to speak with his mother. After speaking with his mother, Ben-Yisrayl waived his Miranda rights the next morning and confessed to his role in the Dhaliwal and Meitzler shootings.

Based on his confession to the police and McGee's cooperation, Ben-Yisrayl was charged with the murders of Dhaliwal and Meitzler. Ben-Yisrayl, however, recanted his statement to the police, pled not guilty to the charges and proceeded to trial where he chose not to testify in his own defense. Just before closing arguments in his trial, attorneys for both sides met for a sidebar with the judge. During the sidebar, the prosecutor expressed an intention to argue to the jury that no evidence had been presented as to why Ben-Yisrayl would have given a false confession. Ben-Yisrayl's attorneys objected to this line of argument as a direct reference to Ben-Yisrayl's decision not to testify, and the judge agreed that the proposed comments would be inappropriate. The prosecutor ignored the court's admonishment, however, and shortly after the sidebar made the following statement to the jury during closing argument:

I told you in the opening statement that the Defendant confessed to killing these [two] people with his shotgun. We proved that. We told you that was the cornerstone of our case and why? Because it is self evidence [sic] that no one freely and voluntarily confesses to a murder unless they're guilty. Let the Defendant tell you why somebody would freely and voluntarily confess to—

(Trial Record at 5568.) At that moment, the defense attorneys interrupted the prosecutor and objected to the prosecutor's argument and moved the court for a mistrial. Unabated, the prosecutor continued to speak over the objection stating:

—on general, why—

. . .

—defendant's counsel can say why a person can confess to a crime.

(Trial Record at 5568.) The court took defense counsels' motion for a mistrial under advisement and allowed the prosecutor to continue with his closing argument. The prosecutor then continued to focus the jury's attention on the defendant's confession:

I said the confessions were the cornerstone of our case because it's self evidence [sic] that no one, anybody, nobody will ever confess to a murder freely and voluntarily unless they commit [sic] it.... So if you believe that there isn't any reason for somebody to admit to murder unless they did it, you're there.... What are the chances that if somebody falsely accuses me of murder that within 24 hours I'm going to falsely admit to it[?] They don't match. I mean it just doesn't make sense. It's—two things don't make sense.

(Trial Record at 5570-75.) The court found that the prosecutor's comments were not improper and denied the defendant's request for a mistrial. The defendant then asked for a jury instruction admonishing the jury as to the prosecutor's comment. The court denied counsel's proposed instruction and responded that the instructions already given were more relevant than the instruction proposed, which would only call attention to what the court had already told the jury to disregard. The jury convicted Ben-Yisrayl on all charges and recommended that he be sentenced to death. The judge agreed with the jury's recommendation and entered judgment accordingly.

In his ensuing direct and collateral appeals, Ben-Yisrayl's counsel attempted to compile a complete and accurate record of the trial proceedings. Counsel was greatly impeded in this effort, however, by the state of the official record. Before finishing the process of transcribing her notes, the court reporter from Ben-Yisrayl's trial resigned as a result of illness. A second court reporter and various specialists worked to complete the transcription, and they ultimately finished the job with significant difficulty and only partial success. The resulting record was replete with lines marked "undecipherable" and errors both major and minor, as the concurring opinion, infra, indicates.

The Indiana Supreme Court ordered Ben-Yisrayl's two trial attorneys, the deputy prosecutor, and the trial judge to reconstruct the missing portions of the record as well as they could. If either party objected to any portion of the final version, that party was to inform the court by February 1, 1995. Neither side objected, and the court declared the reconstruction process complete on May 8, 1995.

On direct appeal, Ben-Yisrayl presented twenty claims. In particular, Ben-Yisrayl claimed that reversible error occurred when, during its closing argument, the government directly commented on the defendant's decision to exercise his constitutional right not to testify. Ben-Yisrayl v. State, 690 N.E.2d 1141, 1148 (Ind.1997) ("Ben-Yisrayl I"). Citing Moore v. State, 669 N.E.2d 733 (Ind.1996)¹ in support, the Indiana Supreme Court determined that the jury in the case could not have reasonably interpreted the prosecutor's comments as a suggestion to infer guilt from the defendant's silence. Ben-Yisrayl I, 690 N.E.2d at 1149. The state court concluded that the prosecutor did not commit reversible error and the trial court did not abuse its discretion in refusing to grant a mistrial and refusing to give an admonishment to the jury. Id. The Indiana Supreme Court also affirmed Ben-Yisrayl's conviction and sentence on collateral review. Ben-Yisrayl v. State, 753 N.E.2d 649 (Ind.2001) ("Ben-Yisrayl II").

In his petition for writ of habeas corpus, Ben-Yisrayl again raised many issues, but the district court only addressed two: comments made by the prosecutor during closing argument and the concerns regarding the accuracy of the trial transcript. In granting Ben-Yisrayl's petition, the district court held that the prosecutor's comments during closing argument constituted a violation of Ben-Yisrayl's rights, Ben-Yisrayl v. Davis, 277 F.Supp.2d 898, 903 (N.D.Ind.2003) ("Ben-Yisrayl III"), and that the Indiana Supreme Court did not reasonably apply United States Supreme Court precedent when it ruled on Ben-Yisrayl's Fifth Amendment claim or when it ruled that any alleged Fifth Amendment violation was harmless error. Id. at 905. In addition, the district court found that the inadequacy of the state trial court record constituted a due process violation. Id. at 905-06.

II. ANALYSIS

We review the district court's grant of Ben-Yisrayl's petition for habeas relief de novo. Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir.2005). A federal court "shall entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (2000). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), substantially amended the statutory law governing federal review of habeas corpus petitions. See 28 U.S.C. §§ 2244, 2253, 2254, and 2255 (2000). The amendments "place[ ] a new constraint" on the ability of a federal court to grant habeas corpus relief to a state prisoner "with respect to claims adjudicated on the merits in state court." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A federal court cannot grant a petition for a writ of habeas corpus filed by a person in state custody with regard to any claim that was rejected on the merits by the state court unless the adjudication of the claim in state court either:

(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...