Brown v. Finnan

• Decision Date: 17 March 2010
• Docket Number: No. 08-3151.,08-3151.
• Citation: 598 F.3d 416
• Parties: Terry C. BROWN, Petitioner-Appellant, V. Alan FINNAN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

598 F.3d 416

Terry C. BROWN, Petitioner-Appellant, V. Alan FINNAN, Respondent-Appellee.

No. 08-3151.

United States Court of Appeals Seventh Circuit.

Argued Oct. 30, 2009.

Decided March 17, 2010.

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Amanda A. Bennett (argued), Bethany N. Schols, Uykema, Chicago, IL, for Petitioner-Appellant.

Steve Carter, James B. Martin (argued) Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before CUDAHY, POSNER, and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

Having been convicted of murdering Charles Young, Jr. and Robert Hunter in 2000, Terry C. Brown was ultimately sentenced to serve two consecutive terms of 55 years. Brown subsequently filed a petition for post-conviction relief, claiming that he had received ineffective assistance of counsel at both the trial and appellate levels. His petition focused on an in-court announcement by one victim's mother to the effect that "the situation [was] racist" and her further proclamation on the courthouse steps that the courthouse should be treated similarly to the World Trade Center and bombed. Brown's attorney declined to request a hearing to determine the impact of these statements on the jury. Nor did his appellate counsel raise the issue on appeal. Brown now contends that his counsels' failure to address this issue violated the Sixth Amendment. He argues further that the Indiana courts' denial of his petition for post-conviction relief is contrary to well-established principles of federal law, as established by the U.S. Supreme Court in Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). He therefore asserts that this court should grant his petition for a writ of habeas corpus.

We decline to do so. To prevail on an ineffective-assistance of-counsel claim under Strickland, a petitioner must demonstrate that his counsel's assistance was objectively unreasonable and resulted in a substantial risk of prejudice. Brown can meet neither requirement. The prejudicial impact of the statements here on the defendant's right to a fair trial is attenuated. Since both Brown and his victim Young, were African-American, it is far from clear-how a juror would perceive the assertion of racism in a manner necessarily injurious to Brown. While obviously serious, a distraught parent's threat of bombing the courthouse does not obviously bear on the guilt or innocence of the defendant. Moreover, there is no evidence thatthis out-of-court statement was heard by any juror. Finally, though no less important, there may be good reason not to draw explicit attention to such statements. Apt counsel might conclude that her client's cause would best be promoted by not focusing on issues of tenuous significance to her client's guilt or innocence. For these reasons, Brown's counsels' performance was not objectively unreasonable. Nor did his attorneys' conduct result in a substantial risk of prejudice. For these reasons, and the reasons that follow we deny Brown's petition.

I. BACKGROUND

On the afternoon of July 16, 2000, two police officers on bike patrol heard gunfire and shortly thereafter observed Terry C Brown run into and then hastily depart a barbershop. Brown was carrying a white document and an unidentified object under his arm. After the officers discovered Charles Young, Jr. lying on the ground with a gunshot wound in his neck, they split up. One officer gave chase and successfully apprehended Brown. The other entered the barbershop and found Robert Hunter, who had been shot in the head.

When arrested, Brown had blood on his clothing, though he did not have possession of the item with which he had been seen exiting from the barbershop. An ensuing search of the immediate area uncovered a gun sight and a white piece of paper, in addition to a bag, which contained a.38-caliber revolver and a 9mm semiautomatic. One of the firearms had six empty shell casings in it, while the other was loaded with a round in the chamber and one round missing. The paper appeared to have blood on it.

On the same day he was arrested, Brown was charged with the murder of Young and Hunter. Two instances of note occurred during his ensuing trial. During the State's presentation of evidence, Corey Young, the mother of victim Charles Young, Jr., announced from the gallery that "the situation [wasl racist." Although Brown and his attorney noticed the remark, the judge did not hear it and testimony continued without interruption. Brown's attorney did not bring the matter to the court's attention. It is unclear whether any juror perceived Ms. Young's statement.

The second incident occurred the same day on the courthouse steps. Ms. Young apparently stated that "this courthouse should be treated similar to the World Trade Center and the whole place should be bombed." There is no evidence that any juror was privy to this remark.

When apprised of these statements, and outside the presence of the jury, the trial judge impressed upon the spectators in the gallery that he would not tolerate such comments. He dismissed Ms. Young from the remainder of the trial. The trial judge did not take any further action, such as holding a hearing to determine the effect, if any, of the statements on the jury. Neither the defense counsel nor the prosecutor requested such a course of action. The rest of the trial proceeded without incident.

On September 19, 2001, the jury found Brown guilty of both murders. Consistent with the jury's recommendation, the trial court sentenced him to two concurrent sentences of life in prison without parole. On appeal, the Indiana Supreme Court remanded the case for resentencing. On remand, the trial court imposed the same sentence. Brown again appealed to the Supreme Court of Indiana. Finding the trial court's sentencing order to be inadequate, the Indiana Supreme Court ordered a remand with instructions to impose two consecutive sentences of 55 years. Brown v. State, 783 N.E.2d 1121, 1126-29 (Ind. 2003). On neither appeal did Brown's attorney raise the court's failure to hold a hearing to consider the impact of Ms. Young's statements on the jury.

On January 2, 2004, Brown filed a pro se petition for post-conviction relief, which he amended on August 21, 2006. In pertinent part for our consideration, Brown's petition provided that he was denied effective assistance of both trial and appellate counsel. He contended that his trial counsel failed to act as counsel guaranteed by the Sixth Amendment due to his failure to request a hearing following Ms. Young's comments. He argued that his appellate attorney's performance was similarly deficient for not raising this issue on appeal. Brown further asserts that both counsels' deficient performances resulted in prejudice.

The Howard County Circuit Court denied Brown's petition for post-conviction relief, finding that Brown could only speculate as to whether any juror actually heard Ms. Young's comments. It also found that it was unclear what her in-court remark even referred to. The Indiana Court of Appeals affirmed. Brown v. State, 874 N.E.2d 651, 2007 WL 2917084 (Ind.App. Oct.9, 2007). In applying the Strickland standard, which requires a showing of both deficient performance and prejudice, the appellate court declined to examine whether Ms. Young's out-of-court statement was prejudicial because there was no showing that any juror either heard the remark or was made aware of it. Expressing skepticism as to whether any juror heard Ms. Young's in-court remark, the Indiana Court of Appeals also observed a lack of evidence pertaining to the statement's prejudicial effect. This being the case, the court expressed doubt whether the trial court would have granted a request for a hearing.

Brown then filed a petition for a writ of habeas corpus with the United States District Court for the Southern District of Indiana. Since the district court found that the Indiana Court of Appeals correctly recognized and applied the Strickland standard, it denied Brown's petition. We granted his motion for a certificate of appealability on September 30, 2008. Brown now appeals the decision of the district court not to grant his petition for a writ of habeas corpus. For the reasons explained below, we affirm.

II. DISCUSSION

The standard by which we review a state court's decision on a federal constitutional issue is a familiar one. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), we may grant habeas relief only if the state's adjudication of the issue: (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 statecourt proceeding. 28 U.S.C. § 2254(d). We review the decision of the last state court to review the issue. See Lucas v Montgomery, 583 F.3d 1028, 1030 (7th Cir. 2009).

For the purposes of habeas corpus review, "[c]learly established federal law" means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Lockyer v. Andrade, 538 U.S 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). A state-court decision is "contrary to" federal law if the state court either erroneously laid out governing U.S. Supreme Court precedent, or, having identified the correct rule of law, decided a casedifferently than a materially factually indistinguishable Supreme Court case. 28 U.S.C. § 2254(d)(1); Sutherland v. Gaetz, 581 F.3d 614, 616 (7th Cir.2009). An "unreasonable application" of U.S. Supreme Court precedent occurs when a state court identifies the correct governing legal rule but unreasonably applies it to the facts of a case or if the state court either unreasonably extends a legal principle from the Supreme Court's precedent to a new context in which...