Freeman v. Lane

• Decision Date: 01 May 1992
• Docket Number: No. 90-2480,90-2480
• Citation: 962 F.2d 1252
• Parties: Gerald FREEMAN, Petitioner-Appellee, v. Michael P. LANE, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1252

962 F.2d 1252

Gerald FREEMAN, Petitioner-Appellee, v. Michael P. LANE, Respondent-Appellant.

No. 90-2480.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 24, 1991.

Decided May 1, 1992.

Thomas Peters (argued), Chicago, Ill., for petitioner-appellee.

Neil F. Hartigan, Atty. Gen., Bradley P. Halloran (argued), Office of the Atty. Gen., Terence M. Madsen, Asst. Atty. Gen., Office of the Atty. Gen., Criminal Appeals Div., Chicago, Ill., for respondent-appellant.

Before WOOD, Jr., ^* and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

RIPPLE, Circuit Judge.

Gerald Freeman petitioned the district court for a writ of habeas corpus for his release from state custody. He based his petition on a violation of his Fifth Amendment right to remain silent at trial and on a Sixth Amendment claim of ineffective assistance of counsel. Mr. Freeman alleged that his appellate counsel on direct appeal failed to raise a Fifth Amendment violation resulting from the prosecutors' indirect reference at trial to his failure to testify. The district court granted the petition. For the following reasons we affirm.

I BACKGROUND

A. The Trial

The State of Illinois charged Gerald Freeman and Ronald Ross with armed robbery, burglary, and aggravated battery in connection with the robbery of Jerry Crider. Ross pleaded guilty to all charges, leaving Mr. Freeman to be tried alone. At trial, Mr. Crider was the only occurrence witness for the state. ¹ He testified that, on February 14, 1979, two men entered the shoe shop where he lived and worked and proceeded to rob him, burn his forehead, stomach, and ankle with a cigarette, and burn his foot with a lighted newspaper. The state also presented the testimony of several officers who detailed the investigation of the crime and the arrest of Freeman and Ross. Mr. Freeman did not call any witnesses. His defense was mistaken identity.

Mr. Crider initially spoke to the police a few days after the crime. He identified one of the two men as "Ross," whom he had known for some twenty years. The record is ambiguous as to whether Mr. Crider was able to identify the second assailant by name. He identified him as a black male taller than himself. However, after viewing two different photo arrays of potential suspects, Mr. Crider did identify Mr. Freeman. Counsel for Mr. Freeman pointed out at trial that his client was the only person to appear in both arrays.

Mr. Freeman's petition for habeas corpus focuses on the prosecutors' closing argument. Almost immediately after beginning her closing, a prosecutor told the jury that "[i]t is unrebutted and uncontradicted that two men forced their way into Jerry Crider's shoe store. It is unrebutted and uncontradicted that he was robbed and tortured by those men." Tr. at 397. Mr. Freeman's counsel objected to these remarks. The court overruled the objection, stating that the jury had heard the evidence. The prosecutor continued, "[i]t is unrebutted and uncontradicted that one of these two men was Ronald Ross" and "[i]t is also unrebutted and uncontradicted, ladies and gentlemen, that the other man was Gerald Freeman." Tr. at 398. After Mr. Freeman's counsel gave his closing argument, a different prosecutor gave a rebuttal argument and elaborated upon the earlier theme. The prosecutor reminded the jury that what the attorneys say is not evidence and that only defense counsel had contradicted Mr. Crider's positive identification of Mr. Freeman. The prosecutor repeated, "there is no evidence which has contradicted that positive identification. And although the Defense lawyers want you to believe that the Defendant was somewhere else when Mr. Crider was being robbed and tortured, there is no evidence the Defendant was anywhere else." Tr. at 426. Counsel again objected, but was overruled for the same reason as before. The prosecutor also told the jury that Mr. Freeman had a right to call witnesses if he

                desired.   Furthermore, the jurors were told that the testimony concerning Mr. Crider's "excellent opportunity to observe [Mr. Freeman] is not contradicted by any other evidence in the case.   You've only the statements of the Defense lawyer to contradict it.   And that's not evidence."   Tr. at 435.   Similarly, the prosecutor reminded the jury that "there is no challenge to [Crider's] ability to observe," Tr. at 436, and "there has been no challenge to Mr. Crider's memory."   Tr. at 441.   The prosecutor concluded by stating that all of the evidence presented by the state was "uncontradicted and unrebutted."   Tr. at 443-44
                

B. Post-Trial Proceedings

The jury convicted Mr. Freeman of armed robbery, burglary, and aggravated battery, and the court sentenced him to forty years' imprisonment. After his conviction, Mr. Freeman moved for a new trial alleging, among other things, that the prosecutors' repeated references to the uncontradicted state of the evidence were also references to Mr. Freeman's exercise of his right to remain silent, which violated the rights guaranteed him by the Fifth and Fourteenth Amendments to the United States Constitution. The court denied this motion.

On his direct appeal to the Illinois Appellate Court, new counsel represented Mr. Freeman and did not raise the Fifth Amendment issue. Instead, counsel based the appeal on the sole ground that Mr. Freeman was denied a fair trial when the court permitted the state to bring Mr. Ross into the courtroom to be identified by Mr. Crider. The appellate court ruled that no prejudice resulted from that procedure and affirmed the conviction. See People v. Freeman, 104 Ill.App.3d 980, 60 Ill.Dec. 736, 433 N.E.2d 974 (1982). The Illinois Supreme Court denied leave to appeal.

Proceeding with different appellate counsel, Mr. Freeman sought post-conviction relief in Illinois trial court. In his post-conviction petition, Mr. Freeman raised the Fifth Amendment issue that his original appellate counsel had failed to argue on direct appeal. To this he added an additional claim that counsel's failure to raise the Fifth Amendment issue denied him effective assistance of counsel. The trial court disagreed and granted the state's motion to dismiss, holding that there was no Fifth Amendment violation in Mr. Freeman's trial and that the attorney's failure to raise the issue did not constitute a denial of effective assistance of appellate counsel. In an unreported order, the Illinois Appellate Court affirmed the dismissal of the post-conviction petition, holding that the prosecutors' references to the state's case as uncontradicted were not an unconstitutional reference to defendant's failure to testify, and therefore that counsel's failure to raise the issue on direct appeal did not demonstrate incompetence. The Illinois Supreme Court denied leave to appeal.

C. District Court Proceeding

Having exhausted his state remedies, Mr. Freeman petitioned the district court for a writ of habeas corpus. Mr. Freeman repeated the arguments that he made in his state post-conviction proceeding. The district court held that, under the interpretations of the Fifth Amendment articulated by this court, the prosecutors did indeed violate Mr. Freeman's Fifth Amendment rights by referring to the uncontradicted state of the evidence. The court reasoned that, because Mr. Freeman was the only witness who could have satisfactorily rebutted Mr. Crider's identification or contradicted the state's evidence, under our decision in United States ex rel. Burke v. Greer, 756 F.2d 1295, 1301 (7th Cir.1985), the prosecutor "intended his remarks to be an indirect comment on Freeman's failure to testify" and consequently violated the Constitution. United States ex rel. Freeman v. Lane, No. 89 C 4642, 1990 WL 70558 at * 4 (N.D.Ill. May 16, 1990).

The district court then evaluated Mr. Freeman's claim of ineffective assistance of counsel under the two-part analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The court found that the first prong of the Strickland standard was

                present in this case.   Given the clarity of the Fifth Amendment violation under this court's decisions and the unsettled state of Illinois law on the question, counsel's failure to raise this issue on appeal was "unreasonable and deficient appellate performance."  Freeman, 1990 WL 70558 at * 5.  The court also found that Mr. Freeman was prejudiced by this failure because, under the Supremacy Clause, the Illinois state courts were required to apply the holdings of this court and find that Mr. Freeman's rights were violated.  Id.  The district court was of the view that the state's submission was inadequate to raise the issue of harmless error.   Nevertheless, the court held, in the alternative, that the evidence marshalled against Mr. Freeman was not so overwhelming as to render the constitutional violation harmless error.  Id. at *  5-6.   Therefore, the court granted the writ.   The state filed a timely notice of appeal
                

II ANALYSIS

Our review of the district court's decision to issue a writ of habeas corpus is plenary. "A federal district court reviewing a habeas petition must perform its own review ... and we must do the same." United States ex rel. Partee v. Lane, 926 F.2d 694, 700 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1230, 117 L.Ed.2d 464 (1992); United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1133 (7th Cir.1990). In his petition, Mr. Freeman raises two distinct, yet interrelated constitutional claims. First, he argues that the prosecutors' comments in their closing argument violated his Fifth Amendment right to remain silent. Second, he argues that his appellate counsel's failure to raise this issue on appeal denied him the effective assistance of counsel guaranteed by the Sixth Amendment.

A. Cause and Prejudice

Before addressing the merits of Mr. Freeman's Fifth Amendment claim, we pause to examine whether, despite the state's submissions to the contrary, this...