Gray v. Greer, 83-2779

• Decision Date: 03 January 1986
• Docket Number: No. 83-2779,83-2779
• Citation: 778 F.2d 350
• Parties: David A. GRAY, Petitioner-Appellant, v. James GREER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 350

778 F.2d 350

David A. GRAY, Petitioner-Appellant, v. James GREER, Respondent-Appellee.

No. 83-2779.

United States Court of Appeals, Seventh Circuit.

Argued June 12, 1985.

Decided Nov. 27, 1985.

As Amended Dec. 18, 1985.

Rehearing and Rehearing En Banc Denied Jan. 3, 1986.

Jerold S. Solovy, Joel J. Africk, Jenner & Block, Chicago, Ill., for petitioner-appellant.

James V. Cinotto, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before BAUER and FLAUM, Circuit Judges, and GRANT, Senior District Judge. ^*

FLAUM, Circuit Judge.

In 1978, petitioner David Gray was convicted of rape, attempted murder and armed robbery and sentenced to sixty years in prison. Petitioner appeals from the dismissal of his habeas corpus petition. For the reasons stated below, we reverse the magistrate's order of dismissal and remand to the district court for proceedings consistent with this opinion.

David Gray was first tried for the rape of Ann Brewer on March 28, 1978. His defense was mistaken identity. The government's case was weakened by the inability of one eyewitness to identify Gray and the lack of corroborating physical evidence to support the in-court identification of Gray by the complaining witness. The trial resulted in a hung jury. The state retried Gray, presenting an additional witness, a former cellmate of Gray's who testified that he had heard Gray admit to the crimes. This time, the jury convicted Gray. The Illinois State Appellate Defender's office represented Gray on appeal of his conviction. The appellate brief raised the following issues: 1) insufficiency of the evidence; 2) improper use of the testimony of Gray's former cellmate; 3) misleading remarks by the prosecutor regarding reasonable doubt; and 4) improper sentencing. The Illinois Appellate Court upheld Gray's conviction and the Illinois Supreme Court denied leave to appeal.

Gray filed a habeas corpus petition in federal court alleging insufficiency of the evidence, prosecutorial misconduct and improper jury selection procedures. This petition was dismissed for failure to exhaust state remedies pursuant to the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38, Sec. 122-1, et seq. Gray then filed a state post-conviction petition which was dismissed; the dismissal was affirmed on appeal.

Gray then brought his second federal petition for habeas corpus relief. The petition alleged ineffective assistance of appellate counsel and improper jury selection procedures. The parties agreed to proceed before a magistrate pursuant to 28 U.S.C. Sec. 636(c). The magistrate dismissed Gray's petition, finding that he had not exhausted state remedies with respect to the ineffective assistance of counsel claim. Gray appealed from the dismissal and we reversed, finding that Gray's failure to raise an ineffective assistance of counsel claim in his initial state petition would prevent the Illinois courts from reviewing this claim. Hence, at the time petitioner filed his second habeas corpus petition in federal court, he had no available state remedies. We reversed and remanded for consideration of Gray's petition on the merits, 707 F.2d 965.

On remand, the magistrate reviewed Gray's brief on direct appeal and concluded that appellate counsel was not ineffective but rather "did a good job in citing applicable case law.... The four issues raised are wide-ranging and forcefully argued." The magistrate then found that "Gray's legal representation by the appellate public defender was, in fact, well above the average in the profession." The magistrate dismissed Gray's claim of improper jury selection procedures, finding that absent constitutionally defective counsel, petitioner could not show cause for the failure to raise this issue on direct appeal. This appeal followed.

I.

Petitioner contends that the district court erred in dismissing his claim of ineffective assistance of counsel without reviewing the record or conducting an evidentiary hearing. In dismissing petitioner's claim of ineffective assistance of appellate counsel, the magistrate did not review the trial court record. Instead, the magistrate relied solely on his examination of the appellate brief, and, finding the brief to be "a thorough discussion of the four issues raised", determined that appellate counsel was not ineffective. The basis for the district court's failure to examine the record was a reluctance to "second guess" appellate counsel regarding the choice of appropriate issues for appeal.

The right to appellate counsel is now firmly established. Evitts v. Lucey, --- U.S. ----, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) established the standard for ineffective assistance of counsel, and though it is phrased in terms of ineffective assistance of trial counsel, it can be used as a basis for establishing a standard for effective assistance of appellate counsel. Accord Bowen v. Foltz, 763 F.2d 191, 195 (6th Cir.1985) (Coutie, J. dissenting); Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir.1985); Mitchell v. Scully, 746 F.2d 951, 954 (2d Cir.1984). Under Strickland, ineffective assistance of counsel will be found when "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 104 S.Ct. at 2064. The Strickland standard envisions a two-prong analysis. First, counsel's performance must have been deficient, and second, the deficiency must have prejudiced the defense. Id. Had appellate counsel failed to raise a significant and obvious issue, the failure could be viewed as deficient performance. If an issue which was not raised may have resulted in a reversal of the conviction, or an order for a new trial, the failure was prejudicial. Were it legitimate to dismiss a claim of ineffective assistance of counsel on appeal solely because we found it improper to review appellate counsel's choice of issues, the right to effective assistance of counsel on appeal would be worthless. When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.

The district court supported its decision by analogy to cases in which we have declined to "second guess" trial counsel's strategic decisions. These cases, however, are inapposite. They involved decisions of counsel which were arguably appropriate at the time, but, with the benefit of "hindsight", appeared less than brilliant. United States v. Harris, 558 F.2d 366, 371 (7th Cir.1977). A reviewing court can evaluate appellate counsel's choice of issues on appeal by examining the trial record and the appellate brief. While it is true that decisions which were arguably correct at the time will not be "second-guessed", a reviewing court must initially determine whether such decisions were, in fact, strategic.

Respondent may well be correct in...