Gosier v. Welborn

Decision Date15 April 1999
Docket NumberNo. 98-2806,98-2806
Citation175 F.3d 504
PartiesHarry GOSIER, Petitioner-Appellant, v. George WELBORN, Warden, Menard Correctional Center, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Stephen E. Eberhardt, Chicago, IL, Robert H. Farley, Jr. (argued), Naperville, IL, for Petitioner-Appellant.

Domenica Osterberger (argued), Office of Attorney General, Chicago, IL, for Respondent-Appellee.

Before COFFEY, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

After breaking into the home where his estranged wife Lesia was living with her parents and her sister Soynda, Harry Gosier slew Soynda, had sexual relations with her corpse, and lay in wait for Lesia. On arriving she was raped in the presence of their 3+-year-old daughter India, then bound and gagged until Lesia's mother Mae Halcrombe came home. India begged Gosier not to kill her grandmother, but he shot Mae three times in the head, making sure that both Lesia and India knew what was happening. Gosier was charged with two murders and two aggravated sexual assaults. One day into his trial Gosier pleaded guilty. A judge concluded that he was eligible for the death penalty, and a jury (the same panel that heard the partial trial) specified capital punishment for his crimes. The conviction and sentence were affirmed on direct review, People v. Gosier, 145 Ill.2d 127, 163 Ill.Dec. 823, 582 N.E.2d 89 (1991), and a collateral attack in state court was unsuccessful, 165 Ill.2d 16, 208 Ill.Dec. 308, 649 N.E.2d 364 (1995).

Gosier began his federal collateral attack after April 24, 1996, so the current version of 28 U.S.C. § 2254 applies. He sought appointment of counsel before that date but did not file a petition until afterward, and it is the latter event that determines whether the Antiterrorism and Effective Death Penalty Act governs. Holman v. Gilmore, 126 F.3d 876 (7th Cir.1997). One court has disagreed with Holman, concluding that Hohn v. United States, 524 U.S. 236, 118 S.Ct. 1969, 141 L.Ed.2d 242 (1998), requires an application for counsel to be treated as a "case pending" before the AEDPA's enactment. Calderon v. United States District Court, 163 F.3d 530, 539-40 (9th Cir.1998) (en banc). Like Judge Hall, dissenting in Calderon, 163 F.3d at 544-45, we find this use of Hohn inapt. The question in Hohn was whether an application for a certificate of appealability is a "case" in the court of appeals, and therefore amenable to review on writ of certiorari under 28 U.S.C. § 1254. The answer to that question does not bear on the issue in Holman and Calderon: whether an application for counsel under 21 U.S.C. § 848(q)(4) is a "case pending" under Chapter 153 of the Judicial Code--the critical question for application of the AEDPA. See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). We did not doubt in Holman that a request for counsel is a "case" in the sense that it is subject to appellate review (and, if need be, review by the Supreme Court). Indeed, Gosier's request for counsel was reviewed by this court on appeal, after the district judge dismissed his application. Gosier v. Welborn, 76 F.3d 381, (7th Cir. Jan. 24, 1996). But a request for counsel under § 848(q)(4), part of Title 21, is not a case under Chapter 153 of Title 28--that is, the request is not a collateral attack on a criminal judgment. Cf. Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (a request for counsel does not initiate a civil suit for purposes of statutes of limitations). This rationale of Holman was ignored by the ninth circuit, and we are not persuaded by a decision that avoided the fundamental issue. So we apply the AEDPA to Gosier's case.

On the basis of the state record, the federal district court rejected all but one of Gosier's contentions. U.S. ex rel. Gosier v. Welborn, 1997 WL 452406, 1997 U.S. Dist. LEXIS 11545 (N.D.Ill.1997). The remaining assertion--that Gosier was unable to assist in his defense--was the subject of an evidentiary hearing. After receiving testimony from the state trial judge, two psychiatrists, three lawyers who had represented Gosier in state court, three law enforcement officers who related Gosier's activities and mental state in prison near the time of his plea, and a lawyer who had known Gosier during high school and college, the district judge concluded that Gosier had "a reasonable degree of rational understanding [and] a rational as well as factual understanding of the proceedings against him." Godinez v. Moran, 509 U.S. 389, 396-98, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993). See also Drope v. Missouri 420 U.S. 162, 171-72, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). This meant that he was competent to stand trial and thus, because Godinez holds that the competence-to-stand-trial standard also applies to guilty pleas and waivers of counsel, Gosier could dismiss his lawyers and plead guilty. The district court accordingly denied his petition for a writ of habeas corpus. 1998 WL 341825, 1998 U.S. Dist. LEXIS 9456 (N.D.Ill.1998).

Illinois contends that forfeiture in state court forecloses Gosier's argument that he was not competent to stand trial, represent himself, and plead guilty. That is indeed what the Supreme Court of Illinois held: "Defendant vigorously attacked several trial court determinations relating to his guilty plea on his direct appeal to this court. He offers no explanation for his failure to raise his present allegation regarding the guilty plea. Therefore, since defendant could have raised this issue on direct appeal, but failed to do so, the issue is waived." 208 Ill.Dec. 308, 649 N.E.2d at 367. Yet both before and after Gosier's case the Supreme Court of Illinois flatly stated that claims of incompetence to stand trial need not be raised on direct appeal. See People v. McLain, 37 Ill.2d 173, 177, 226 N.E.2d 21, 24 (1967); People v. Nitz, 173 Ill.2d 151, 161, 218 Ill.Dec. 950, 670 N.E.2d 672, 676 (1996). The wavering course of state law led the district judge to conclude that the state's forfeiture ground is inadequate to foreclose federal review. 1997 WL 452406, * 6-* 8, 1997 U.S. Dist. Lexis 11545 at * 17-25. These cases do not announce a firm rule with a possibility that the court will excuse the forfeiture in the interest of justice. See Prihoda v. McCaughtry, 910 F.2d 1379, 1384 (7th Cir.1990). Instead, there appear to be incompatible lines of authority, cases that do not cite each other, let alone establish a rule-and-exception framework. The Attorney General of Illinois tells us that the cases may be harmonized on the ground that prisoners who on collateral attack offer additional evidence of mental shortcomings are allowed to pursue their claims, while prisoners who stand on the original record are not. Perhaps this is a factual difference, but it is not a ground emphasized (or even mentioned) by the Supreme Court of Illinois, which said in People v. Burson, 11 Ill.2d 360, 370, 143 N.E.2d 239, 245 (1957), that "grace" rather than more evidence explains its pattern of decisions. Nitz states, without qualification, that claims of this kind always may be raised on collateral attack in Illinois. A defendant reading the state court's opinions would not think it necessary to raise this issue on direct appeal, and the forfeiture doctrine therefore does not bar collateral review in federal court. Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir.1997).

After concluding that the state court should have held a hearing to inquire into Gosier's competence, the district judge held one of his own and concluded, as we have recounted, that Gosier was able to understand the proceedings and assist in his defense. If this is correct, it follows that the plea comports with the Constitution. Gosier advances a nominally distinct argument that his plea was involuntary, but this is derivative from the competence argument. To the extent it has an independent basis, the Supreme Court of Illinois cogently addressed it on direct appeal, 163 Ill.Dec. 823, 582 N.E.2d at 96-99, and that decision cannot be called an "unreasonable" application of settled law. See 28 U.S.C. § 2254(d)(1). We therefore put voluntariness aside.

The evidence before the district court strongly supports the conclusion that Gosier was competent--so strongly, indeed, that it is clear that the hearing was unnecessary. Only when the facts at the time of trial create a bona fide doubt about an accused's fitness is a hearing required. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Drope, 420 U.S. at 173, 95 S.Ct. 896. That standard has not been met--and not only because Justice Robert Steigmann, the trial judge, testified that Gosier comprehended the proceedings:

He responded to the questions I asked. He asked questions himself. When I answered, he responded to those questions in a coherent fashion.... His answers were responsive to my questions. In response to the admonitions I was giving him ... He appeared to me to understand those admonitions and to make responses pertaining to them that were consistent with the admonitions I had given for I think in the few instances clarification of what that would mean and the like.

The judge also related that Gosier's lawyer did not indicate that he had any trouble communicating with his client, or that Gosier was unable to comprehend the proceedings or assist in the defense. According to Justice Steigmann, only "the terrible judgment that Mr. Gosier's request to represent himself showed" raised any flag--and of course this request, the exercise of a constitutional right, see Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), can't be used to prevent the defendant from representing himself or pleading guilty, lest rights be self-canceling. Gosier has a college education; Justice...

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