Fern v. Gramley

• Decision Date: 31 October 1996
• Docket Number: No. 94-2258,94-2258
• Citation: 99 F.3d 255
• Parties: Jay Harry FERN, Petitioner-Appellant, v. Richard B. GRAMLEY, Warden, Pontiac Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 255

99 F.3d 255

Jay Harry FERN, Petitioner-Appellant, v. Richard B. GRAMLEY, Warden, Pontiac Correctional Center,

Respondent-Appellee.

No. 94-2258.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 19, 1996.

Decided Oct. 31, 1996.

Gary Senner, Elissa Isaacs (argued), Sonnenschein, Nath & Rosenthal, Chicago, IL, for Jay Harry Fern.

Bradley P. Halloran, Paul Chevlin (argued), Rita M. Novak, Office of the Attorney General, Chicago, IL, for Richard B. Gramley and Roland W. Burris.

Before COFFEY, FLAUM, and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Without a prior plea agreement, Jay Harry Fern pleaded guilty in an Illinois court in May 1989 to two counts of unlawful delivery of a controlled substance (cocaine). The court sentenced him on July 19 of the same year to concurrent twenty-five- and ten-year terms and imposed fines totaling $75,000. After announcing its sentence, the court informed Fern of his right to appeal and advised him that he would first have to file a written motion asking the trial court to permit him to withdraw his guilty plea. Despite this admonition, Fern's attorney did not file the motion mandated by Illinois Supreme Court Rule 604(d), but instead appealed directly to the Appellate Court of Illinois. Not surprisingly, that court refused to reach the merits, rejecting Fern's appeal on the basis of counsel's failure to file the Rule 604(d) motion. People v. Fern, 199 Ill.App.3d 983, 146 Ill.Dec. 68, 557 N.E.2d 1010 (1990).

In his state petition for post-conviction relief, filed pro se, Fern alleged, inter alia, that his attorney rendered ineffective assistance by failing to preserve his direct appeal. The trial court summarily dismissed Fern's petition, and the Illinois appellate court affirmed. People v. Fern, 240 Ill.App.3d 1031, 180 Ill.Dec. 651, 607 N.E.2d 951, appeal denied, 151 Ill.2d 569, 186 Ill.Dec. 387, 616 N.E.2d 340 (1993). Fern then brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Finding that Fern had little hope of success on appeal and that he therefore could not show prejudice as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the district court denied the writ and Fern's motion for reconsideration. After initial briefing in this court, we ordered that counsel be appointed to represent Fern and requested that counsel for both parties address the applicability of Castellanos v. United States, 26 F.3d 717 (7th Cir.1994) and United States v. Nagib, 56 F.3d 798 (7th Cir.1995). We now vacate and remand to the district court.

I.

In Castellanos, we stated unequivocally that "[i]f the defendant told his lawyer to appeal, and the lawyer dropped the ball, then the defendant has been deprived, not of effective assistance of counsel, but of any assistance of counsel on appeal. Abandonment is a per se violation of the sixth amendment." Castellanos, 26 F.3d at 718 (citing United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 2046-47, 80 L.Ed.2d 657 (1984)). Assuming that Fern instructed his attorney to appeal his sentence, Castellanos therefore would appear to control. Respondent, however, points to two reasons why we should not apply Castellanos here. First, respondent argues that Castellanos announced a new rule, which under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), cannot be applied in the context of Fern's collateral attack on a sentence that became final before Castellanos was decided. Second, respondent maintains that the decision of the Appellate Court of Illinois, which rejected Fern's state post-conviction petition on the ground that he had not demonstrated prejudice, was not contrary to, or an unreasonable application of, Federal law as determined by the United States Supreme Court--the conclusion we must draw in order to grant Fern's petition under the new 28 U.S.C. § 2254(d) enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132, 110 Stat. 1214. See Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996). Although these arguments involve related considerations, we discuss them separately.

A.

Under the non-retroactivity doctrine announced in Teague, we will not apply on collateral review a rule of criminal procedure that "was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301, 109 S.Ct. at 1070 (emphasis in original); see Butler v. McKellar, 494 U.S. 407, 412-14, 110 S.Ct. 1212, 1216-17, 108 L.Ed.2d 347 (1990); Jones v. Page, 76 F.3d 831, 849-51 (7th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 363, 136 L.Ed.2d 254 (1996). Both parties agree that the relevant date for Teague purposes is 1990, when Fern's direct appeal had run its course. See Caspari v. Bohlen, 510 U.S. 383, 389-90, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994); Jones, 76 F.3d at 851. We therefore must decide whether the law as it existed in 1990 compelled the conclusion that an attorney's forfeiture of a client's right to appeal constituted ineffective assistance of counsel regardless of prejudice. See Caspari, 510 U.S. at 389-90, 114 S.Ct. at 953; Jones, 76 F.3d at 851. ¹

An initial clue in this regard, overlooked by both petitioner and respondent, is that Castellanos itself was decided on review of a habeas petition brought pursuant to 28 U.S.C. § 2255. See 26 F.3d at 718. Because Teague applies to petitions brought under § 2255 as well as petitions brought under § 2254, see Haley v. United States, 78 F.3d 282, 285 n. 2 (7th Cir.1996) (per curiam); Dawson v. United States, 77 F.3d 180, 183 (7th Cir.1996), the nonretroactivity doctrine should have barred our announcement of a "new" rule in Castellanos, if a new rule it was. It therefore would seem untenable to maintain, as respondent does, that Castellanos and Nagib constituted "a vast departure from the familiar performance-prejudice analysis first announced in Strickland." That is, of course, unless we erred in Castellanos. We do not believe we erred. A close analysis of Castellanos reveals that our opinion in that case was grounded firmly in Supreme Court precedent already extant in 1990. See Castellanos, 26 F.3d at 718 ("Abandonment is a per se violation of the sixth amendment.") (citing Cronic, 466 U.S. at 658-59, 104 S.Ct. at 2046-47); id. at 719 ("[T]he 'prejudice' component of Strickland does not apply when an appellate lawyer fails either to file a brief or to satisfy the requirements of Anders in seeking leave to withdraw.") (citing Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988)). At the very least, we agree with Fern that we did not believe we were announcing a new rule in Castellanos.

Yet this does not necessarily mean that Castellanos did not in fact announce a new rule within the meaning of Teague, for "[t]he 'new rule' principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler, 494 U.S. at 414, 110 S.Ct. at 1217. "Courts frequently view their decisions as being 'controlled' or 'governed' by prior opinions even when aware of reasonable contrary conclusions reached by other courts." Id. at 415, 110 S.Ct. at 1217. We must look directly at the caselaw as it existed in 1990 and ask whether the issue Fern now raises "was susceptible to debate among reasonable minds." Id. If so, then the rule announced in Castellanos, at least as far as Fern is concerned, was a new rule and cannot be applied to his petition.

Fern points to a triad of Supreme Court cases which he insists had established by 1990 the rule upon which he now relies: Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); and Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969). We doubt that Evitts and Rodriquez alone can be said to dictate the rule that failure to perfect a direct appeal from a state-court conviction obviates the need to show prejudice. Rodriquez held that where counsel's failure to file a notice of appeal deprived an accused of his right to appeal a federal district court's judgment of conviction, the accused could not be required to specify in his subsequent habeas petition the points he would have raised on appeal. See 395 U.S. at 329-30, 89 S.Ct. at 1717. Although Rodriquez therefore was quite similar to the instant case, it dealt with the loss of the right to appeal from a federal conviction and predated Evitts' holding that ineffective assistance of counsel on an accused's first appeal as of right from a state-court conviction violated the Due Process Clause of the Fourteenth Amendment. Moreover, Rodriquez is cited only once in Evitts in a footnote and not at all in Penson, the other two cases upon which Fern relies. As for Evitts, although that case did establish once and for all that an accused convicted in state court is entitled to effective assistance of counsel in the course of a direct appeal as of right, the Court specifically noted that, on the facts before it, there was no need to "decide the content of appropriate standards for judging claims of ineffective assistance of appellate counsel." Evitts, 469 U.S. at 392, 105 S.Ct. at 833.

Penson, however, compels the rule of law that Fern seeks to have applied to his petition. In Penson, Penson's appellate attorney filed only a "Certification of Meritless Appeal and Motion" stating that there were no grounds for reversal and asking to be removed from the case. The Ohio Court of Appeals granted the attorney's wish and proceeded to conduct its own review of the record. Although it found that there were "arguable" grounds for appeal and that one count had to be reversed, the appeals court determined that Penson suffered no prejudice as to the remaining counts because the court itself had reviewed the record with the benefit of arguments by coun...