Canaan v. McBride

• Decision Date: 11 January 2005
• Docket Number: No. 03-1384.,03-1384.
• Citation: 395 F.3d 376
• Parties: Keith B. CANAAN, Petitioner-Appellee, v. Daniel R. McBRIDE, Warden,<SMALL><SUP>*</SUP></SMALL> Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 376

395 F.3d 376

Keith B. CANAAN, Petitioner-Appellee, v. Daniel R. McBRIDE, Warden,^* Respondent-Appellant.

No. 03-1384.

United States Court of Appeals, Seventh Circuit.

Argued November 20, 2003.

Decided January 11, 2005.

Rehearing Denied March 11, 2005.

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F. Thomas Schornhorst, Gulfshores, AL, John Pinnow (argued), Greenwood, IN, for Petitioner-Appellee.

Stephen R. Creason, Office of the Attorney General, Scott A. Kreider (argued), Hannon Centers Roop & Huttom, Indianapolis, IN, for Respondent-Appellant.

Before BAUER, ROVNER, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

In the early morning hours of December 29, 1985, a police officer arrived at Lori Bullock's apartment in Evansville, Indiana. The apartment had been ransacked and the officer found Bullock dead, with a butcher knife protruding from her throat and almost two dozen stab wounds. Keith B. Canaan was arrested two days later and charged with the crime. A jury convicted Canaan of murder, burglary, and attempted criminal deviate conduct. At the sentencing hearing that followed, Canaan's counsel presented no mitigating evidence. Faced only with two aggravating factors, the jury recommended the death penalty. The judge accepted that recommendation and sentenced Canaan accordingly.

After unsuccessfully seeking post-conviction relief, Canaan filed a petition for a writ of habeas corpus. The district court granted him relief on three grounds. The first, in which the court found Canaan's trial counsel ineffective for failing to advise him that he had the right to testify at the penalty phase of his trial, affected only his death sentence. The second and third grounds resulted in the vacation of his conviction for attempted criminal deviate conduct. The court found that the jury instruction for attempted criminal deviate conduct failed to require the State to prove beyond a reasonable doubt that Canaan had acted with specific intent with respect to this crime, that this omission violated his due process rights, and that his counsel was ineffective for failing to object to this jury instruction. We affirm the district court's judgment granting habeas corpus relief with respect to the death sentence, but we reverse with respect to the conviction for attempted criminal deviate conduct.

I

The following account of the underlying facts comes from the opinions of the Indiana courts that considered Canaan's case. One or two weeks before Bullock's death, Canaan had knocked on the door of Bullock's apartment and asked her roommates whether he could wait in their living room until their upstairs neighbors arrived. The roommates agreed, and Canaan eventually fell asleep on their couch. The next day, Canaan returned and one of Bullock's roommates permitted him to use their phone. The evening of Bullock's murder, Canaan knocked on the door of her upstairs neighbor, who later testified that he seemed nervous and "had a strange look." Canaan then went downstairs and was heard knocking on the door of a first-floor apartment. Bullock lived on the first floor. Around midnight, Canaan was seen at a Bennigan's restaurant with substantially more money than he had possessed earlier in the day. Several hours later, at another restaurant, he asked a waitress how he could remove blood stains from his shirt. Canaan's brother testified that Canaan had told him that he killed a "biker" at a bar the night before, and Canaan's friend testified that the afternoon following the murder, Canaan had noticed some police nearby and said, "I've got to get out of here." Finally, Canaan's fingerprint was found on a box of spaghetti found in Bullock's apartment.

Canaan was charged with murder, burglary, and criminal deviate conduct, as well as being a habitual offender. The State sought the death sentence based on the charged aggravating circumstance of intentional killing during the crimes of burglary and criminal deviate conduct, Ind. Code § 35-50-2-9(b)(1). The jury convicted Canaan on all three counts. At the penalty phase, it found Canaan guilty of being a habitual offender, thereby making him eligible for an additional thirty-year sentence. See Ind. Code § 35-50-2-8(h). Next, a death penalty hearing was held before the same jury. Canaan did not testify at this hearing, and his counsel presented no mitigating evidence. The jury recommended that Canaan be sentenced to death. On November 26, 1986, the court found that Canaan intentionally killed Bullock while committing burglary and attempted criminal deviate conduct. In the absence of any mitigating circumstances, it concluded that there was nothing to outweigh the two aggravating factors. On this basis, the court sentenced Canaan to death.

Canaan appealed his conviction to the Indiana Supreme Court, which affirmed. Canaan v. State, 541 N.E.2d 894 (Ind.1989) ("Canaan I"), cert. denied, 498 U.S. 882, 111 S.Ct. 230, 112 L.Ed.2d 185 (1990). Canaan's trial lawyers also represented him on direct appeal. Canaan then filed a petition for post-conviction relief, which the Indiana post-conviction court denied. After unsuccessfully appealing to the Indiana Supreme Court, Canaan v. State, 683 N.E.2d 227 (Ind.1997) ("Canaan II"), cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 L.Ed.2d 141 (1998), Canaan filed a petition for a writ of habeas corpus. The district court found no flaws in Canaan's convictions for murder and burglary, but it concluded that "Canaan's petition must be granted with respect to the death sentence and the conviction for attempted criminal deviate conduct." The court found that Canaan was denied effective assistance of counsel at the death penalty phase when his lawyers failed to discuss with him whether he should testify. The court also concluded that the jury instruction on attempted criminal deviate conduct denied Canaan due process of law because it did not require the jury to find beyond a reasonable doubt the essential element of a specific or conscious intent to penetrate the sex organ of the victim with an object. Finally, the court found that Canaan received ineffective assistance of counsel based on his trial attorneys' failure to object to those jury instructions. On this basis, the court issued a writ of habeas corpus vacating Canaan's death sentence and his conviction for attempted criminal deviate conduct. The State has appealed.

II

A

We consider first the order vacating Canaan's death sentence. The district court granted his petition in that respect based on its finding that Canaan received constitutionally ineffective assistance of counsel when his trial attorneys, Barry Standley and Beverly Harris, failed to consult with him about whether he should testify at the penalty phase of the trial. On appeal, the State argues that his claim that he was "denied the right to testify" was procedurally defaulted because Canaan did not fairly present it to the Indiana Supreme Court. See 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. 27, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004); Harris v. McAdory, 334 F.3d 665, 668 (7th Cir.2003).

The State's articulation of its argument makes plain the flaw in it: Canaan seeks habeas corpus relief not on the ground that he was "denied the right to testify," as the State suggests, but rather because he was denied effective assistance when his counsel failed to advise him of his right to testify. Because the distinction between these claims is significant, it is necessary to review the evolution of Canaan's ineffective assistance of counsel claim before the Indiana courts. Canaan's post-conviction petition alleged that he "was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States [because]... [c]ounsel for petitioner failed to call petitioner as a witness during the death penalty phase of the trial." The Indiana post-conviction trial court rejected this argument, stating that "[t]he decision not to call Petitioner as a witness during the penalty phase of the trial is proper trial strategy." That court also found that "during the preparation for the trial, both Counsel Standley and Co-Counsel Harris discussed with petitioner his right to testify at both the guilt and penalty phases of the trial." Harris testified, however, that "when we talked about him testifying at the trial, we were also regarding that towards the penalty phase." There is no indication that Canaan knew that this was the lawyers' intention, nor that counsel ever advised him about the risks and benefits of testifying at the penalty phase after he lost at the guilt phase.

On appeal to the Indiana Supreme Court, Canaan argued that his counsel was ineffective not only for "decid[ing] not to call Canaan as a witness at the penalty phase of the trial," but also for "fail[ing] to consult with him regarding the decision." Canaan suggested that his sentence might have been different had he been permitted to testify, in that "he could have filled in major gaps in the jury's knowledge regarding him." The Indiana Supreme Court never addressed Canaan's argument that counsel failed to consult with him about the desirability of testifying at the penalty phase, when virtually all of the strategic reasons for refraining from testifying had become moot. It instead addressed only the argument that "counsel was ineffective for not calling him as a witness at the penalty phase," and on that point it "affirm[ed] the post-conviction court's conclusion that Canaan ha[d] failed to demonstrate that the decision not to call Canaan as a witness during the penalty phase constituted ineffective assistance of counsel." Canaan II, 683 N.E.2d at 229-30. In his habeas corpus petition, Canaan reiterated his ineffective assistance of counsel claim, asserting among other things that "[n]either of his lawyers even discussed with him whether he should testify during the death sentence hearing," even...