Fryer v. U.S.

• Decision Date: 02 March 2001
• Docket Number: No. 98-4078,V,RESPONDENT-APPELLEE,PETITIONER-APPELLAN,98-4078
• Citation: 243 F.3d 1004
• Parties: (7th Cir. 2001) EDDIE LEE FRYER,UNITED STATES OF AMERICA,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1004

243 F.3d 1004 (7th Cir. 2001)

EDDIE LEE FRYER, PETITIONER-APPELLANT,

V.

UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.

No. 98-4078

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued September 28, 2000

March 2, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 3921--Milton I. Shadur, Judge.

Thomas K. McQueen, Elizabeth A. Coleman (argued), Jenner & Block, Chicago, IL, for Petitioner-Appellant.

Madeleine S. Murphy (argued), Office of the U.S. Atty., Crim. Div., Chicago, IL, for Respondent-Appellee.

Before Flaum, Chief Judge, Bauer, and Harlington Wood, Jr., Circuit Judges.

Harlington Wood, Jr., Circuit Judge.

On October 11, 1991, Eddie Fryer was convicted by a jury on three counts of bank robbery and two counts for the use of a firearm during the commission of a violent felony. The charges were based on three separate armed bank robberies. On direct appeal, Fryer's sentence and conviction were affirmed by this court in United States v. Fryer, 974 F.2d 813 (7th Cir. 1992), cert. denied, 508 U.S. 941 (1993). On June 24, 1996, Fryer filed a pro se motion pursuant to 28 U.S.C. sec. 2255 to vacate his conviction on the grounds of ineffective assistance of counsel at trial. On April 25, 1997, Fryer filed an amendment to his sec. 2255 motion raising the applicability of Old Chief v. United States, 519 U.S. 174 (1997), to his case as a separate issue. The district court appointed counsel for Fryer and ultimately denied Fryer's motion. Fryer appealed the district court's denial and filed a petition for a certificate of appealability. The district court granted Fryer's certificate on one issue only, whether Old Chief should apply to the admission of Fryer's prior felony conviction which was presented at trial. Fryer then filed in this court a motion for enlargement of the issues in the certificate of appealability. We denied the motion in an order issued on November 30, 1999. We now hold that Old Chief does not apply and affirm the denial of Fryer's habeas petition.

I. Background

A detailed presentation of the facts of Fryer's case may be found in Fryer, 974 F.2d at 814-18. Due to the limited nature of this inquiry, we recount only the facts which are relevant to the issue in this opinion. Fryer was charged with three counts of bank robbery with the use of a dangerous weapon in violation of 18 U.S.C. sec.sec. 2113(a) and (d), three counts for the use of a weapon during and in relation to the commission of a crime of violence under 18 U.S.C. sec. 924(c), and a seventh count for possession of a firearm by a felon in violation of 18 U.S.C. sec. 922(g). He was found guilty on three bank robbery counts and two counts for the use of a weapon during two of the bank robberies.

In presenting the necessary elements under Count 7, possession of a firearm by a felon, the government sought to enter into evidence a certified judgment of conviction ("CJ") in order to satisfy the prior felon element. The CJ contained the name and nature of the prior offense, which was robbery. Fryer objected, arguing the CJ was highly prejudicial because it was the same offense for which he was currently being tried. Although the district court overruled Fryer's objection, before allowing the evidence to be introduced, the judge admonished the jury regarding the limited purpose for which they could use the prior conviction.

You are about to hear evidence with respect to defendant Eddie Lee Fryer having been convicted of an offense punishable by imprisonment for a term exceeding one year. This evidence may be considered by you only on the question whether the government has established one of the elements of the offense that's charged in Count 7 of the indictment, which you will have later on. You will recall from opening statements that there was a reference to one of the charges having to do with the defendant's allegedly having possession of a firearm at a time that he had previously been convicted of what we referred to as a felony offense--that is, something punishable by imprisonment for a term exceeding one year. So that the evidence that you are about to hear may be considered by you only for that limited purpose, not for any other purpose in connection with the case.

The government attorney then read to the jury the CJ, which stated that Fryer had been charged with armed robbery, was convicted of armed robbery, and was sentenced "to three years probation, the first six months in the Cook County Department of Corrections." Fryer immediately objected to the accuracy of the CJ, noting that armed robbery was not a probationable offense under the Illinois statute. From what the court and attorneys could deduce, Fryer had been charged with armed robbery but convicted of robbery, a lesser offense. The district court then instructed the jury to disregard the published CJ and ordered the government to obtain a corrected replacement. A second CJ was obtained, which contained the correct charge and conviction but an incorrect sentence. While preserving his objection to the admissibility of the exact nature of the conviction, Fryer agreed to stipulate to the fact that he had previously been charged with armed robbery, convicted for the lesser offense of robbery, and was sentenced.

At the end of the trial, while instructing the jury as to the felon-in-possession count, the district court repeated the earlier limiting instruction it had given, noting that,

you have heard evidence that defendant Eddie Lee Fryer has been convicted then of an offense punishable by imprisonment for a term exceeding one year. Importantly, you may consider that evidence only on the question whether the government has established an element of the offense charged in Count 7 of the indictment. That evidence is to be considered by you only for that limited purpose and for no other.

Fryer was acquitted on Count 7. However, Fryer maintains that allowing the jury to learn the nature of his prior conviction prejudiced him in the jury's consideration of the three counts of armed bank robbery.

II. Analysis

A. Standard of Review

We review a district court's denial of a sec. 2255 petition on factual matters for clear error, and on questions of law de novo. See Arango-Alvarez v. United States, 134 F.3d 888, 890 (7th Cir. 1998).

We note that the district court addressed the effect on Fryer's petition of the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which went into effect on April 24, 1996, after Fryer's direct appeal was finalized in 1993, but before his collateral appeal was filed in 1996.¹ As pertains to the single issue before us now, AEDPA limits the time a petitioner may bring a sec. 2255 motion to one year, in Fryer's case, running from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. sec. 2255(3). Fryer timely filed an amendment to his petition after the publication of Old Chief in 1997. In Old Chief, the Supreme Court resolved a split of authority in the federal courts and ruled that evidence of prior felony convictions used to support a charge under 18 U.S.C. sec. 922(g)(1) should not be heard by the jury where the defendant offers to stipulate to the existence of such convictions. 519 U.S. at 191.

Fryer originally attacked this same issue on the merits in his direct appeal when he challenged the admissibility of evidence under Federal Rule of Evidence 403, arguing that allowing the jurors to learn the nature of his prior conviction unfairly prejudiced him, which, he claims, was evidenced by the jury's convictions on the robbery counts. A panel of this court found that "any prejudice to [Fryer] was insubstantial, if not nonexistent, in the face of the overwhelming evidence of his guilt," and noted that the district court correctly gave a cautionary instruction limiting the use of the prior conviction to consideration of the felon-in-possession count only.

Fryer, 974 F.2d at 823.

Then, in his July 23, 1997 reply in support of his sec. 2255 petition, Fryer transformed his failed evidentiary argument into a "new" issue by stating that "Old Chief constitutes new law which should be retroactively applied," and noted, "Under the Teague [v. Lane, 489 U.S. 288 (1989)] analysis, the rule set forth in Old Chief qualifies under the second exception to the general rule of non-retroactivity for cases on collateral review--it requires the observance of those procedures that... are implicit in the concept of ordered liberty," or "[p]ut another way, the Court's ruling in Old Chief qualifies as a watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." In his April 29, 1997 amendment motion to his sec. 2255 petition, Fryer acknowledged that applying Old Chief to his habeas petition presented a retroactivity issue because his case had become final on May 24, 1993, when his petition for certiorari was denied. See Fryer v. United States, 508 U.S. 941 (1993). In his petition for certificate of appealability, Fryer added one sentence to his "exception to Teague" argument, stating that the holding in Old Chief "may not be a new rule as defined in Teague and, therefore, may be retroactively applied on collateral review." Finally, in his appellate brief he argues that, because existing precedent dictated that the name and nature of his prior conviction should not have been disclosed, there is no new rule of law.

To address all of Fryer's arguments, we first review the holding in Old Chief to determine if it establishes a new rule of law.² The defendant in Old Chief was charged with numerous counts, including a felon-in-possession count under 18 U.S.C. sec. 922(g)(1). 519 U.S. at 174. Old Chief filed a pre-trial motion to...