Byers v. Basinger

• Decision Date: 09 July 2010
• Docket Number: No. 09-1833.,09-1833.
• Citation: 610 F.3d 980
• Parties: Freddie L. BYERS, Jr., Petitioner-Appellant,v.James BASINGER, Superintendent of the Wabash Valley Correctional Facility, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

610 F.3d 980

Freddie L. BYERS, Jr., Petitioner-Appellant,v.James BASINGER, Superintendent of the Wabash Valley Correctional Facility, Respondent-Appellee.

No. 09-1833.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 25, 2010.

Decided July 9, 2010.

COPYRIGHT MATERIAL OMITTED

Alan M. Freedman (argued), Midwest Center for Justice, Ltd., Evanston, IL, for Petitioner-Appellant.

Kelly A. Miklos (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before CUDAHY, EVANS, and SYKES, Circuit Judges.

CUDAHY, Circuit Judge.

After a jury trial, the Freddie Byers, Jr.,¹ was convicted of two counts of first-degree murder, one count of attempted murder and one count of robbery. The Supreme Court of Indiana affirmed on direct appeal Byers v. Indiana, 709 N.E.2d 1024 (Ind.1999), and, after the Indiana Court of Appeals denied his petition for post-conviction relief, 878 N.E.2d 542, 2007 WL 4531828 (2007), the Indiana Supreme Court denied transfer, 891 N.E.2d 41 (Ind.2008). The district court denied Mr. Byers' habeas petition, in which Mr. Byers argued that his trial counsel performed deficiently. Byers v. Superintendent, No. 3:08 cv 0240 AS, 2009 WL 537662 (N.D.Ind. Mar. 4, 2009). We granted Mr. Byers a certificate of appealability on the question whether he had been denied effective assistance of counsel. We affirm the district court's denial because, even if Mr. Byers successfully exhausted his claim, it lacks merit.

I. Background

Mr. Byers was convicted based on the following events. On January 30, 1997, James Edison, a guest at Bennie Spears and Almeka Dodds' house in South Bend, opened the door to “Flint” (a/k/a petitioner Mr. Byers) and “Gill.” Banter among the men quickly turned serious. Dodds, in the next room, heard Spears warning Flint not to point his gun at Spears and then heard it discharge. She entered to see Flint, who had visited their home a “whole bunch of times,” holding a gun and Spears shot and wounded on the ground. Flint grabbed Dodds by the hair and demanded she tell him where the money was, while Gill locked Dodds' children in the bathroom. Flint instructed Gill to cut Edison's neck with a kitchen knife and to take Dodds to the basement and shoot her in the head. Luckily for Dodds, Gill was unskilled at his first task, and Edison attempted an escape out the window. Both Flint and Gill pursued Edison and shot him. Back in the home, they fired bullets into the basement where Dodds hid, but did not hit her. She ran to a neighbor's house once she thought her house was clear. The police arrived to find Dodds' children locked in the bathroom, unharmed. Edison and Spears died of their wounds.

Dodds told the police the shooter she called Flint or Fred had crooked teeth and a scar on his face. Dodds also suggested that the police already had a picture of Flint from an incident at Flint's girlfriend's house on the evening of a prize fight. They did have such a photo, and Dodds identified Flint in an array.

At trial, Dodds was the prosecution's main witness. No physical evidence or usable fingerprints linked Mr. Byers to the offense. To demonstrate the errors in Dodds' initial description of Flint, Mr. Byers walked in front of the jurors to show them that his teeth were straight and his face scarless. During a test run of this walk before the jury entered, the trial judge asked:

“What's [Mr. Byers'] anklet thing? Is that visible? Mr. Byers, come over here please.

It's okay. That's not so bad. Okay.”

At an evidentiary hearing in post-conviction proceedings, Mr. Byers contended that this “anklet thing” was a shackle or restraint. At trial, the court made no findings about Mr. Byers' need for shackles or restraints in the courtroom. Indeed, there was no discussion of Mr. Byers' wearing restraints in court apart from the anklet-related comments of the trial judge.

Mr. Byers' trial was interrupted by several spectators' outbursts. In a sidebar prior to his opening statement, the prosecutor noted comments from the gallery-possibly by the victims' families, although the exact words or the identities of the speakers do not appear in the trial record-while the court read the preliminary instructions. The prosecutor suggested that the court admonish the spectators to be respectful; Mr. Byers' trial counsel agreed and the court did so after excusing the jury. At his post-conviction hearing, Mr. Byers testified that, at this point in the trial, Dodds' mother and sister said “you guilty mother fucker, I hope you fry. We shouldn't be having a trial anyway, you know you're guilty, you know you did it. Things of that nature.” Mr. Byers testified that the jury heard Dodds' relatives but that he was paying attention to his lawyer at the time and not looking at the jury. Later, during Dodds' testimony, authorities removed Dodds' brother from the courtroom, possibly for outstanding warrants. Dodds' mother, Ms. Jeannie Dunlap, reacted by apparently shouting and making a scene and, after excusing the jury, the trial court addressed her and eventually jailed her overnight for contempt of court. Mr. Byers testified that he knew the jurors heard this incident because their heads turned. After these interruptions and at various points during the trial, after excusing the jury, the judge admonished the spectators to maintain proper courtroom decorum out of respect for the jury's difficult job. At his post-conviction hearing, Mr. Byers described a third incident, although there is no record of it, when two girls taunted “you are going to get found guilty, you gonna get found guilty.” Mr. Byers testified that he wasn't sure that the jury heard them. Defense counsel never objected, nor requested jury questioning nor moved for a mistrial based on the disruptions.

Mr. Byers had not testified at his trial. His lawyer argued that, on the day in question, Mr. Byers was with his very-pregnant girlfriend, where they were watching movies at Mr. Byers' father's house in Chicago. Mr. Byers' father and girlfriend corroborated this story. The jury convicted Mr. Byers on all counts, and he was sentenced to the maximum 200 years' imprisonment. As noted, the conviction and sentence were affirmed on direct appeal. See Byers v. Ind., 709 N.E.2d 1024 (Ind.1999).

Mr. Byers collaterally attacked his conviction based on ineffective assistance of counsel and other grounds. At all levels of state post-conviction review, he asserted an ineffective-assistance-of-counsel claim based on the failure of trial counsel to address the outbursts at trial (the outbursts ground). The post-conviction courts denied relief on this ground because he failed to show that some of the outbursts occurred or that any juror or prospective juror heard the spectators' statements, and, therefore, he failed to prove deficient performance.² 2007 WL 4531828, at *6. In federal habeas proceedings, the district court held that Mr. Byers' claim failed because the outbursts did not call into question Mr. Byers' guilt and because there was no evidence that the jury was prejudicially affected. 2009 WL 537662, at *3-4.

Unlike his outbursts ground, Mr. Byers was less consistent in his attempt to exhaust his claim based on trial counsel's failures to object to Mr. Byers' purported restraints at trial and to demand that the trial judge make findings before allowing Mr. Byers to appear before the jury in restraints (the restraints ground). At an evidentiary hearing before the state post-conviction trial court, Mr. Byers submitted a list, including the simple word “restraints,” of issues his post-conviction counsel had inadequately addressed. Mr. Byers also testified that he was in restraints during trial, that his trial counsel didn't address his request to remove the restraints and that the judge made no findings that restraints were necessary. Mr. Byers claimed that the trial judge and jury knew he was restrained because he had to walk in front of them when he showed them his teeth. Mr. Byers, however, did not testify explicitly that the jury saw the restraints. The post-conviction trial court ordered Mr. Byers' post-conviction counsel to file a supplemental amended petition to address Mr. Byers' list. In complying, counsel argued that no further evidentiary hearing was warranted and argued that Mr. Byers' “restraints” issue had no merit:

In this case defendant was required to wear ankle restraints throughout the trial and on at least one occasion, appeared before the jury in those restraints. Trial counsel could, and probably should have requested a mistrial based upon the ankle restraint observation by the jury. Which is deficient performance on the part of counsel. However, it would be difficult to show any resulting harm at the time it occurred and certainly near impossible at this point in time. Such a showing would necessitate contemporaneous voir dire of the jury for existence of any prejudice to the defendant's fair trial rights prior to establishing grounds for a mistrial request. Such an inquiry cannot be made at the present later date.... The general rule precludes presenting a defendant to the jury in handcuffs or shackles, but a court may need to do so in certain exceptional circumstances when restraint is necessary to prevent the escape of the prisoner, to protect those in the courtroom, or to maintain order.

Mr. Byers, not satisfied, moved the court to strike the supplemental amended petition and asked for time to find a new counsel. Mr. Byers failed to find substitute counsel and requested that his post-conviction counsel continue representation, which had the effect of abandoning his motion.³ His post-conviction petition was denied. Byers v. Indiana, No. 71DO4-9701-CF-0059 (St. Joseph County Ct. Feb. 6, 2007). Before the state post-conviction appellate court Mr. Byers, acting pro se, attacked post-conviction counsel's performance based on his restraints at trial (although he cited caselaw discussing federal law relating to trial counsel and...