Eaglin v. Welborn

• Citation: 57 F.3d 496
• Decision Date: 08 June 1995
• Docket Number: No. 93-1561,93-1561
• Parties: Kenneth EAGLIN, Petitioner-Appellee, v. George C. WELBORN, Warden, and Roland W. Burris, Attorney General of Illinois, Respondents-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 496

57 F.3d 496

Kenneth EAGLIN, Petitioner-Appellee, v. George C. WELBORN, Warden, and Roland W. Burris, Attorney General of Illinois, Respondents-Appellants.

No. 93-1561.

United States Court of Appeals Seventh Circuit.

Argued Nov. 9, 1993.

Decided Oct. 28, 1994.

Reargued En Banc April 26, 1995.

Decided June 8, 1995.

Maribeth Egert Dura (argued), Corrigan & Dura, Peoria, IL, for petitioner-appellee.

Penelope Moutoussamy George (argued), Office of Atty. Gen., Crim. Appeals Div., Chicago, IL, for respondents-appellants.

Before POSNER, Chief Judge, and CUMMINGS, CUDAHY, COFFEY, FLAUM, EASTERBROOK, RIPPLE, MANION, KANNE, and ROVNER, Circuit Judges.

POSNER, Chief Judge.

We granted rehearing en banc in this habeas corpus matter to consider whether to overrule Whipple v. Duckworth, 957 F.2d 418 (7th Cir.1992), on which the district judge and the panel had relied in deciding that the petitioner was entitled to a new trial. 41 F.3d 268 (7th Cir.1994). The panel reasoned that a common law rule in force in Illinois, People v. Gillespie, 136 Ill.2d 496, 145 Ill.Dec. 915, 557 N.E.2d 894 (1990), forbidding a defendant to raise a defense of entrapment without admitting that he committed the crime that he claims to have been entrapped into committing, violates procedural rights guaranteed to state criminal defendants by the Fourteenth Amendment. To be more precise, the rule is that a defendant may not plead entrapment without admitting the commission of the acts constituting the elements of the crime. He can deny that those acts are punishable. He can, for example, without forfeiting the defense, claim that the statute was being applied to him ex post facto or was otherwise inapplicable, or invalid. In some states, including Illinois, he can claim he lacked the requisite state of mind for criminal liability. People v. Jensen, 37 Ill.App.3d 1010, 347 N.E.2d 371, 375 (1976); cf. United States v. Henry, 749 F.2d 203 (5th Cir.1984). Whipple held, in a case not involving entrapment, that a criminal defendant has a constitutional right to have the jury instructed on any defense, recognized by state law, that has some basis in the evidence. 957 F.2d at 423. The panel in the present case concluded that the common law rule against pleading innocence and entrapment in the alternative is inconsistent with this holding of Whipple.

The state argues that regardless of the merits of Eaglin's case, the granting of any relief to him is barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which held that federal habeas corpus is not available to state prisoners who want to assert rights that they could not have asserted in their criminal proceedings in state court because the rights had not yet been declared. See also Gilmore v. Taylor, --- U.S. ----, ----, 113 S.Ct. 2112, 2116, 124 L.Ed.2d 306 (1993). Although the rule that forbids pleading innocence and entrapment in the alternative had been widely criticized, and had been rejected for federal criminal trials in Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988), it had not been declared unconstitutional. Indeed, the Supreme Court of Illinois had in the Gillespie case expressly reaffirmed the rule after reconsidering it in light of Mathews. So Whipple, to the extent it invalidated the Illinois rule (as the panel in this case believed it had done), created a new rule, which could not be applied retroactively. But Eaglin's conviction did not become final until after Whipple was decided. So the principle of Teague is inapplicable unless the application of Whipple to the rule against pleading innocence and entrapment in the alternative, an application made for the first time by the panel in the present case, is itself a new rule within the meaning of Teague. The Illinois rule invalidated by the panel does not prevent a defendant from pleading the defense of entrapment, and so does not fall squarely under Whipple. It puts a price on pleading the defense, but that is not the same thing, and therefore Whipple would have to be extended to cover this case.

The state did not argue Teague in the district court, however, and ordinarily the failure to present a ground in the trial court forfeits it in the appellate court. But whether this is true when the ground is Teague has been cast into some doubt by the Supreme Court's very recent decision in Goeke v. Branch, --- U.S. ----, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995) (per curiam). The state in that case had cited Teague in the district court, and when at the oral argument of the appeal the petitioner tendered to the court of appeals a ground for affirmance that had not been raised in the district court, the state's lawyer had invoked Teague as a bar to that ground too. After describing this history, the Supreme Court said: "The record supports the State's position that it raised the Teague claim. The State's efforts to alert the Eighth Circuit to the Teague problem provided that court with ample opportunity to make a reasoned judgment on the issue. The State did not waive the Teague issue; it must be considered now; and it is dispositive." Id. at ----, 115 S.Ct. at 1276-77 (citation omitted).

There are three ways to take this. The first is that a state is free to argue Teague for the first time in the court of appeals, period. The second is that confronted by a brand new ground at the appellate stage, the state can argue Teague for the first time since, unless gifted with prevision, it could not have done so in the district court. Under the third interpretation the state may do this if but only if it cited Teague in the district court against the grounds actually presented to that court. The second interpretation is at once the most sensible and the least controversial. It would be unreasonable (and a burden on the courts) to require a party to anticipate all the new grounds that his opponent might present on appeal and to contest each of them in the trial court even though they had not yet been raised and might never be. The third interpretation, it is true, is consistent with the Supreme Court's emphasis on the state's having cited Teague against different grounds in the district court; but it would still represent a startling expansion in the doctrine of waiver; and we must bear in mind that Goeke v. Branch was decided on the certiorari papers, without oral argument or full briefing. The first interpretation is consistent with the Supreme Court's (and our own) generally more relaxed attitude toward failure to preserve issues by raising them at the earliest feasible opportunity in cases involving considerations of comity--the mutual respect of sovereigns. Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987); Schlesinger v. Councilman, 420 U.S. 738, 743, 95 S.Ct. 1300, 1305, 43 L.Ed.2d 591 (1975); Younger v. Harris, 401 U.S. 37, 40-41, 91 S.Ct. 746, 748-49, 27 L.Ed.2d 669 (1971); Thomas v. Indiana, 910 F.2d 1413, 1415-16 (7th Cir.1990); Stone v. City & County of San Francisco, 968 F.2d 850, 855-56 (9th Cir.1992). But it would be contrary to the statement in Goeke v. Branch itself that "a court need not entertain the [Teague ] defense if the State has not raised it." --- U.S. at ----, 115 S.Ct. at 1276. See also Hanrahan v. Thieret, 933 F.2d 1328, 1337 n. 10 (7th Cir.1991); Falconer v. Lane, 905 F.2d 1129, 1137 (7th Cir.1990).

Goeke v. Branch makes clear, at least, that if the state either argues Teague in the district court or had no reasonable opportunity to argue it there, the court of appeals may not invalidate the petitioner's conviction without considering the bearing of Teague. If as in the present case the state waives the defense, the court of appeals still may consider it if it wants to, Caspari v. Bohlen, --- U.S. ----, ----, 114 S.Ct. 948, 952, 127 L.Ed.2d 236 (1994); Schiro v. Farley, --- U.S. ----, ---- - ----, 114 S.Ct. 783, 788-89, 127 L.Ed.2d 47 (1994); Thomas v. Indiana, supra, 910 F.2d at 1416, but it is not required to do so. We do not wish to do so in the present case, which we "en banced" in order to examine the continued validity of Whipple. For completeness we add that a court of appeals must consider the bearing of Teague, even if an argument based on that decision is not waived, only if the court is minded to invalidate the petitioner's conviction. If there is another ground of affirmance besides Teague, the court is not obliged to base its decision on Teague rather than on the other ground. This is an additional reason why we are not compelled to apply Teague to this case.

The facts, at least as Eaglin would like us to believe them and as a jury might (if instructed as he had wished) have found them, illuminate the reason for the criticism, culminating in Mathews, of the rule against pleading entrapment without admitting commission of the crime. Joan Scott, the state's attorney of an Illinois county, had attempted to remove Eaglin's children from his household because of neglect. In the ensuing custody battles, which ran from 1987 to the early part of 1990, Scott filed perjury charges against Eaglin's wife and parents and had the wife imprisoned, albeit briefly, on a charge of contempt. In June of 1990, when Scott was attempting to end the Eaglins' parental rights and put their children up for adoption, a former felon named Joseph Roberts, recently hired by Eaglin to work for Eaglin's construction company, told the Eaglins that there was a contract out on the life of Mrs. Eaglin. This (all agree) was a lie. According to Eaglin, Roberts elaborated upon the lie the next day, telling him that the hit man was named Paul Long and that he had been hired by none other than Joan Scott, the prosecutor, who wanted to make Eaglin "worm and squirm." This bizarre fabrication was--again according to Eaglin--soon followed by another: that Roberts had persuaded Long to kill Scott instead, provided of course that Eaglin would pay Long....