Cartee v. Nix
| Decision Date | 17 November 1986 |
| Docket Number | No. 83-3014,83-3014 |
| Citation | 803 F.2d 296 |
| Parties | Elmer CARTEE and Patrick Russell, Petitioners-Appellants, v. Crispus NIX, Warden, and Neil Hartigan, Attorney General of the State of Illinois, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Lonny Ben Ogus, Chicago, Ill., for petitioners-appellants.
Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.
Before WOOD, EASTERBROOK and RIPPLE, Circuit Judges.
Petitioners Elmer Cartee and Patrick Russell appeal from the district court's grant of summary judgment on their petition for habeas corpus brought under 28 U.S.C. Sec. 2254 challenging their 1975 state robbery conviction. Petitioners raise three issues for review: (1) the denial of their request for an evidentiary hearing; (2) the state trial court's alleged failure to instruct the jury; and (3) ineffective assistance of trial and appellate counsel. We affirm.
In 1975, after a joint trial, the petitioners were found guilty of robbery and were sentenced to six and two-thirds to twenty years, to be served consecutively to an unrelated previous conviction. On direct appeal, the petitioners contested only the propriety of the consecutive sentences. The Illinois appellate court affirmed the convictions in an unreported decision.
In 1978, the petitioners filed a petition for post-conviction relief claiming three errors: (1) the trial court's denial of their motion for "default" due to the prosecution's late filing of a response to the petition for relief; (2) the trial court's denial of petitioners' motion that the trial judge recuse himself; and (3) the trial court's ruling that petitioners' trial and appellate counsel had not been ineffective. The court held a hearing and then denied the petition. Petitioners appealed the denial, and the Illinois appellate court affirmed. People v. Cartee, 86 Ill.App.3d 895, 42 Ill.Dec. 18, 408 N.E.2d 396 (2d Dist.1980).
Petitioners filed a second petition for post-conviction relief in 1981, claiming that the judge's failure to orally instruct the jury violated their constitutional rights. The trial court granted the state's motion to dismiss, and petitioners appealed. The appellate court affirmed the dismissal in People v. Cartee, 104 Ill.App.3d 754, 60 Ill.Dec. 754, 433 N.E.2d 326 (2d Dist.1982). The Supreme Court of Illinois denied petitioners leave to appeal.
In 1982, the petitioners filed a pro se petition for a writ of habeas corpus. After the case was transferred to Illinois from Iowa, where petitioners were incarcerated, the district court appointed counsel and granted leave to file an amended petition. The amended petition raised five claims: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; (3) lack of proper jury instructions; (4) failure to bring petitioners to Illinois for their first post-conviction hearing and denial of a hearing on their second post-conviction petition; and (5) improper prosecutorial comment in closing argument. 1
The district court found that the state court had determined that the petitioners' failure to raise the jury instruction issue until the second post-conviction proceeding constituted waiver and therefore the district court refused to reach the merits of this issue. The district court further found that the petitioners had waived four of the six errors cited to establish trial counsel ineffectiveness. Of the remaining two errors, the court determined that one instance was a tactical decision and that the other was an error that did not materially affect the trial's outcome. The district court also was not persuaded that the petitioners' appellate counsel was ineffective for refusing to look beyond the trial record and found that this issue was waived because the petitioners had not presented this specific argument to the state court in the first post-conviction proceeding. Finally, the district court found that any prejudice from the prosecutor's statements was cured by the state trial court's order to strike and by the giving of corrective instructions. The district court found that petitioners also had waived this claim by not arguing it to the state court. Finding most of the petitioners' claims waived and no merit in their remaining claims, the district court granted summary judgment for the respondents and denied the petitioners' request for a hearing. Petitioners appeal both the denial of an evidentiary hearing and the grant of summary judgment.
In Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the Supreme Court enunciated the circumstances in which a district court considering a habeas corpus petition should hold an evidentiary hearing:
Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.
It would be unwise to overly particularize this test. The federal district judges are more intimately familiar with state criminal justice, and with the trial of fact, than are we, and to their sound discretion must be left in very large part the administration of federal habeas corpus.... Some particularization may[, however,] ... be useful. We hold that a federal court must grant an evidentiary hearing to a habeas applicant under the following circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.
Id. at 313, 83 S.Ct. at 757 (footnote omitted). See 28 U.S.C. Sec. 2254(d) (1982) (). In a footnote, the Court stated: "In announcing this test we do not mean to imply that the state courts are required to hold hearings and make findings which satisfy this standard, because such hearings are governed to a large extent by state law." Id. at 313 n. 9, 83 S.Ct. at 757 n. 9. See Jeter v. Keohane, 739 F.2d 257, 257 n. 1 (7th Cir.1984); Spencer v. Zant, 715 F.2d 1562, 1579-80 (11th Cir.1983); Jensen v. Satran, 651 F.2d 605, 607-08 (8th Cir.1981).
In the circumstances of this case, the district court did not abuse its discretion in not holding an evidentiary hearing. The state's fact-finding procedures in the petitioners' two post-conviction proceedings provided the petitioners a full and fair hearing. None of the circumstances outlined by the Townsend Court mandate an evidentiary hearing in this case.
Petitioners on appeal allege two grounds warranting habeas relief: (1) that the state trial judge did not instruct the jury, and (2) that their trial and appellate counsel's ineffectiveness violated their sixth amendment right to counsel. Petitioners also assert ineffectiveness of counsel as "cause" for their failure to raise the jury instruction issue at trial, on appeal, or in their first post-conviction proceeding.
In their habeas corpus petition, petitioners asserted, among other things, that the trial jury was not instructed as to the law governing the case. Petitioners asserted ineffectiveness of trial and appellate counsel as cause for their state procedural default in not raising the jury instruction issue. Petitioners also alleged that their first post-conviction counsel failed to raise the jury instruction issue because he had done "the exact thing complained of." The district court determined that the state had treated the petitioners' failure to raise this issue until their second post-conviction proceeding as a waiver of this claim. 2 The district court concluded that the claim was waived under Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977).
This case presents us with a "double procedural default" situation. Norris v. United States, 687 F.2d 899, 903 (7th Cir.1982). Petitioners' first procedural default occurred when the petitioners failed to object at trial to the lack of instructions. 3 In People v. Roberts, 75 Ill.2d 1, 25 Ill.Dec 675, 387 N.E.2d 331 (1979), the Supreme Court of Illinois held "where there is a failure to object [at trial] to an instruction, waiver is the rule, and the provision of our Rule 451(c) constitutes an exception which, under the prior decisions of this court, is a limited exception ... to be used to correct 'grave errors' ... or to be applied where the case is close factually and fundamental fairness requires that the jury be properly instructed." 25 Ill.Dec. at 681, 387 N.E.2d at 337. The court noted that Illinois Supreme Court Rule 615, which provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court," Ill.Rev.Stat. ch. 110A p 615(a) (1985), corresponds to Fed.R.Crim.P. 52(b). Id. at 335-36 (). Under Illinois criminal procedure...
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