Carbajol v. Fairman

• Citation: 700 F.2d 397
• Decision Date: 22 February 1983
• Docket Number: No. 82-1587,82-1587
• Parties: Augustin CARBAJOL, Petitioner-Appellant, v. James FAIRMAN, Gayle Franzen, and Tyrone Fahner, Attorney General of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 397

700 F.2d 397

Augustin CARBAJOL, Petitioner-Appellant, v. James FAIRMAN, Gayle Franzen, and Tyrone Fahner, Attorney

General of Illinois, Respondents-Appellees.

No. 82-1587.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 11, 1983.

Decided Feb. 22, 1983.

Susan Bandes, The Roger Baldwin Found. of ACLU, Inc., Chicago, Ill., for petitioner-appellant.

Michael B. Weinstein, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before PELL, CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

One day in 1976, Augustin Carbajol ("Carbajal" in the state court proceedings) chased Reuben Hernandez on foot down an alley in Harvey, Illinois, shooting at him. One shot hit Hernandez, who was unarmed, in the back, and killed him. Carbajol was tried for murder. At his trial (a bench trial), he testified that the night before the shooting, Hernandez, accompanied by a cousin, had come to Carbajol's house and told him that he intended to kill him and his children and rape his wife; that he would take his time, but would eventually carry out his threats. The next day Carbajol saw Hernandez in a car on the street outside Carbajol's house, and in an encounter later that day Hernandez told Carbajol that he, Carbajol, was a dead man. Carbajol borrowed a gun from his cousin. His intention was to kill Hernandez, because he thought Hernandez would carry out his threats. When Carbajol returned home with the gun, he saw Hernandez and Hernandez's cousin standing on the street. Seeing Carbajol, Hernandez reached into his car and took something out, and then he and his cousin began running away. All this testimony was admitted but on the prosecutor's motion the trial judge refused to allow Carbajol to testify that 14 years earlier in Mexico Hernandez had killed two of Carbajol's uncles and raped Carbajol's niece.

Carbajol was convicted of murder and sentenced to 14 to 20 years in prison. The Illinois Appellate Court affirmed his conviction, People v. Carbajal, 67 Ill.App.3d 236, 23 Ill.Dec. 917, 384 N.E.2d 824 (1978), and after the Illinois Supreme Court refused him leave to appeal he petitioned for federal habeas corpus. The district court denied the petition. Carbajol appeals, arguing that the exclusion of the evidence of Hernandez's past attacks on Carbajol's relatives violated his right to defend himself, a right guaranteed by the Sixth Amendment and made applicable to the states by the due process clause of the Fourteenth Amendment.

The state argues that Carbajol has waived his objection to the exclusion of the evidence. He had offered the evidence at trial to prove that he had killed Hernandez in self-defense (and, what is the same thing under Illinois law, defense of others--the members of his family) and out of necessity. See Ill.Rev.Stat.1981, ch. 38, Secs. 7-1, 7-13. These are complete defenses. Carbajol now argues that the evidence should have been admitted for the different purpose of showing that he was guilty just of voluntary manslaughter, because "at the time of the killing he believe[d] the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of [the Illinois Criminal Code], but his belief [was] unreasonable." Ill.Rev.Stat.1981, ch. 38, Sec. 9-2(b).

It is necessary to distinguish between failure to exhaust state remedies, and waiver. The state does not argue that Carbajol has failed to exhaust his state remedies. Although exhaustion requires that "the substance of a federal habeas corpus claim must first be presented to the state courts," Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971), and the substance of Carbajol's claim--that Hernandez's violent history should have been admissible to show that Carbajol was guilty of voluntary manslaughter rather than murder--was not presented at trial, the state concedes that it was presented on appeal to the Illinois Appellate Court and that this exhausted his state remedies.

Failure to exhaust state remedies merely requires the habeas corpus petitioner to present his claim to a state court before presenting it in the federal habeas corpus proceeding; it postpones but does not eliminate his right to obtain relief in that proceeding. Waiver bars him forever; and it is waiver rather than failure to exhaust that the state argues bars us from considering Carbajol's claim. See Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 1570 n. 28, 71 L.Ed.2d 783 (1982); United States ex rel. Spurlark v. Wolff, 699 F.2d 354, 356 (7th Cir.1983).

"Waiver" is something of a misnomer in this context; the real question is forfeiture. If a state withholds the right of appellate review of issues not raised at trial, the federal courts will not undermine the state's interest in orderly procedure by allowing the defendant to litigate the issue in a federal habeas corpus proceeding. Wainwright v. Sykes, 433 U.S. 72, 88-90, 97 S.Ct. 2497, 2507-2508, 53 L.Ed.2d 594 (1977). If, therefore, the Illinois Appellate Court had refused to consider whether the excluded evidence was admissible to show mitigation, rather than just exoneration as Carbajol had argued at trial, we could not consider it for that purpose either, and Carbajol would be out of court. But we do not know whether the Illinois Appellate Court refused to consider the issue. The court did not mention the issue separately but neither did it say that it had refused to consider it because it had not been raised in the trial court. The discussion in the opinion is sufficiently general to be consistent with, though not to compel, an inference that the issue was considered and rejected on the merits. And while the state argues waiver, it has not provided us with any materials (nor have we found any on our own) to help us determine whether an Illinois court would consider the failure at trial to mention voluntary manslaughter in connection with the offer of proof a procedural default sufficiently serious to bar Carbajol from ever after objecting to the exclusion of the proof on the ground that it might have got the charge reduced from murder to manslaughter. Carbajol's counsel not only made an offer of proof but indicated the purpose for which the offer was made--to bolster his client's defenses of self-defense and necessity. All he failed to do was to argue that the evidence might establish self-defense and necessity not only as complete defenses to a charge of homicide but alternatively as partial defenses. He should have been more explicit but it also should have been pretty obvious to the judge that the evidence had a dual relevance, and it is uncertain in these circumstances whether Illinois would consider counsel's default serious enough to compel forfeiture of Carbajol's opportunity for appellate and hence collateral determination of the constitutional propriety of the exclusion.

As waiver is not a jurisdictional issue, we think we should go on to consider the merits of Carbajol's constitutional claim, at least provisionally; for if we reject it on the merits, we reach the same result as if we had held that he had waived the claim, but without having to decide the question of waiver.

Unless the evidence of what had happened in Mexico 14 years earlier was relevant to Carbajol's defenses against the murder charge, he...