Ellsworth v. Levenhagen

• Decision Date: 20 April 2001
• Docket Number: RESPONDENT-APPELLEE,No. 00-1928,PETITIONER-APPELLANT,00-1928
• Citation: 248 F.3d 634
• Parties: (7th Cir. 2001) EDWARD L. ELLSWORTH,, v. MARK LEVENHAGEN,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 634

248 F.3d 634 (7th Cir. 2001)

EDWARD L. ELLSWORTH, PETITIONER-APPELLANT, v. MARK LEVENHAGEN, RESPONDENT-APPELLEE.

No. 00-1928

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued February 22, 2001

April 20, 2001

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:99-cv-0115--Allen Sharp, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Laura Weiler (argued), Guy Conti (argued), Law Students, Robert J. Palmer, May, Oberfell & Lorber, South Bend, IN, for petitioner-appellant.

Thomas D. Perkins (argued), Office of the Attorney General, Indianapolis, IN, for respondent-appellee.

Before Bauer, Coffey, and Manion, Circuit Judges.

Coffey, Circuit Judge

On February 25, 1999, Edward L. Ellsworth filed a petition for a writ of habeas corpus, 28 U.S.C. sec. 2254, arguing that his Sixth Amendment rights were violated when an Indiana trial court answered two written questions from the jury without consulting and outside the presence of defense counsel. The district court denied the petition, and Ellsworth now appeals. We affirm.

I. FACTUAL BACKGROUND

Edward Ellsworth was convicted in the Allen County (Indiana) Circuit Court of robbery causing serious bodily injury and sentenced to thirty years in prison. At one point during jury deliberations after his trial, the jurors forwarded two written questions to the judge. The first question asked, "Is the jury able to obtain copies of police reports for review? a) Pappas; b) Clifford; c) Taylor; d) Quait." The judge responded that "reports are not evidence, only testimony and exhibits [are evidence]." The second question submitted to the judge asked, "Is the jury able to review exhibits again?" The judge answered "yes" to this question. But the judge did not inform counsel that the jury had submitted these written questions before answering them.

After the jury returned a guilty verdict, the judge then informed the parties that "notes from the jury are available for inspection of counsel." Ellsworth's counsel inquired as to when the judge had received communications from the jury and the nature of the court's response. The trial judge informed defense counsel that he had received two notes during deliberations and had inserted his handwritten responses on the bottom of each of the notes. Both notes were then entered into the court's record. At this time, Ellsworth's counsel objected to the judge's communications with the jury, particularly noting that even though the police reports themselves were not admitted in evidence, each officer read a substantial portion of their respective reports into the record during the presentation of the state's case-in-chief.

On direct appeal to the Indiana Appellate Court, Ellsworth argued that the judge's ex parte communication with the jury violated "[his] right to be present at every stage of the proceedings." Although Ellsworth did not explicitly mention the Sixth Amendment in his brief on direct appeal, he cited and relied extensively upon, Jewell v. Indiana, 624 N.E.2d 38, 41-42 (Ind. Ct. App. 1993), an Indiana case that relied upon the Sixth Amendment to support the proposition that a criminal defendant has the right to be present at all critical stages of criminal proceedings. Ellsworth argued that he had been prejudiced by the ex parte communication because his counsel could have provided alternate responses had he been informed of the questions. The Indiana Appellate Court affirmed Ellsworth's conviction, noting that:

Ellsworth objected to the communications, but stated no specific grounds. He now contends that had he been advised of the jury's notes, he could have ascertained whether there was a disagreement among the jurors as to the testimony concerning the police reports. However, the requests do not indicate a disagreement as to the testimony relating to the exhibits. Although the judge's response to the notes creates a rebuttable presumption that error was committed, the judge's communication had no effect upon the jury's ability to come to a fair determination of the case. Furthermore, the trial judge denied the jury's request to obtain copies of police reports. When a trial judge responds to a jury question by denying the jury's request, any inference of prejudice is rebutted and the error is deemed harmless. Morrison v. State, 609 N.E.2d 1155 (Ind. Ct. App. 1993). Therefore, no harm resulted from the court's communication with the jury outside Ellsworth's presence.

Shortly after his state petition for post-conviction relief was denied without prejudice, Ellsworth commenced this habeas corpus action in the Federal district court for the Northern District of Indiana alleging, among other things, the right to be present during communications between the judge and the jury. Although the Federal district court noted that it was "greatly troubled by the communication and dealings between the state trial judge and jury during deliberations which have both Sixth Amendment and due process implications," it considered the error to be harmless and denied Ellsworth's petition. The district court, however, granted Ellsworth a certificate of appealability with regard only to his Sixth Amendment claim. Ellsworth appeals that issue.

II. ISSUE

Ellsworth argues on appeal that he was prejudiced by the ex parte communications between the state trial judge and the jury and therefore the district court erred in finding the judge's communication to be harmless.

III. DISCUSSION

A. Standard of Review

Under the current regime governing federal habeas corpus for state prison inmates, the inmate must establish that the state court proceedings:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. sec. 2254(d); see also Williams v. Taylor, 529 U.S. 362 (2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir. 2000).

In reviewing a district court's denial of a petition for writ of habeas corpus, we review de novo the district court's conclusions of federal law, as well as the district court's mixed questions of law and fact. Kurzawa v. Jordan, 146 F.3d 435, 439 (7th Cir. 1998); Verdin v. O'Leary, 972 F.2d 1467, 1481 (7th Cir. 1992). The district court's factual determinations, however, are presumptively correct and should not be set aside unless clearly erroneous. Stone v. Farley, 86 F.3d 712, 716 (7th Cir. 1996). Further, "'state court factual findings that are reasonably based on the record are accorded a presumption of correctness.'" Kurzawa, 146 F.3d at 440 (quoting Bryan v. Warden, Indiana State Reformatory, 820 F.2d 217, 218 (7th Cir. 1987)); see also 28 U.S.C. sec. 2254(e)(1).

B. Procedural Default

Before we proceed to the merits of Ellsworth's petition, we must determine whether he properly presented his Sixth Amendment claim in the state court proceedings. "Initially, the state courts must have had a 'fair opportunity' to consider a question of constitutional import before federal collateral review on that question is appropriate." Kurzawa, 146 F.3d at 441 (citing Burgin v. Broglin, 900 F.2d 990, 996 (7th Cir. 1990)). "A 'fair presentment' of a petitioner's claims requires that a petitioner give state courts 'a meaningful opportunity to pass upon the substance of the claims [petitioner] later presses in federal court.'" Spreitzer v. Schomig, 219 F.3d 639, 645 (7th Cir. 2000) (quoting Howard v. O'Sullivan, 185 F.3d 721, 725 (7th Cir. 1999)). To satisfy that requirement, an inmate must present "both the operative facts and the legal principles that control each claim to the state judiciary." Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001).

In determining whether a petitioner has fairly presented a claim to the state judiciary, we examine four factors: 1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation. Id.; Sullivan v. Fairman, 731 F.2d 450, 454 (7th Cir. 1984); Verdin, 972 F.2d at 1473-1474. "The bottom line is that the 'task of the habeas court in adjudicating any issue of fair presentment is assessing, in concrete, practical terms, whether the state court was sufficiently alerted to the federal constitutional nature of the issue to permit it to resolve that issue on a federal basis.'" Kurzawa, 146 F.3d at 442 (quoting Verdin, 972 F.2d at 1476).

While the presence of any one factor, particularly factors one and two, does not preserve an appeal, id., here three factors are present. First, Ellsworth's reliance on Jewell alerted the state court to his Sixth Amendment claim. Jewell relied heavily upon the Sixth Amendment in its analysis of an similar claim. 624 N.E.2d at 41-42. More importantly, Ellsworth's claim, that the judge's ex parte communication violated "[his] right to be present at every stage of the proceedings," calls to mind his Sixth Amendment right. See, e.g., Illinois v. Allen, 397 U.S. 337 (1970) (identifying the "right to be present" as "[o]ne of the most basic rights guaranteed by the Confrontation Clause"); Verdin, 972 F.2d at 1480 (claim based on "right to be present at critical stages" of trial was phrased in terms so particular to call to mind the Sixth and Fourteenth Amendments). Finally, the pattern of facts that Ellsworth alleged is "well within the mainstream of constitutional litigation." Indeed, the state admitted at argument...