Howard v. O'Sullivan Warden

• Citation: 185 F.3d 721
• Decision Date: 15 July 1999
• Docket Number: No. 98-2589,98-2589
• Parties: (7th Cir. 1999) Edward Howard, Petitioner-Appellant, v. William D. O'Sullivan, Warden, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 721

185 F.3d 721 (7th Cir. 1999)

Edward Howard, Petitioner-Appellant, v. William D. O'Sullivan, Warden, Respondent-Appellee.

No. 98-2589

United States Court of Appeals, Seventh Circuit

Argued February 22, 1999

Decided July 15, 1999

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 6604--James B. Moran, Judge.

Before Bauer, Ripple, and Diane P. Wood, Circuit Judges.

Diane P. Wood, Circuit Judge.

On June 20, 1988, an Illinois jury convicted Edward Howard of murder. He challenged that conviction in direct appeals to the Illinois Appellate and Supreme Courts, and then later through a petition for collateral relief under the Illinois Post- Conviction Hearing Act, 725 ILCS 5/122-1 et seq., which he also pursued through the state trial, appellate, and supreme courts. After those efforts bore no fruit, Howard turned to the federal district court. The district court denied his petition for a writ of habeas corpus, and now Howard is before us. Of the many grounds he has pressed in his six prior attacks on his conviction, he presently argues only two: (1) that the Illinois trial court's admission into evidence of a .38 caliber pistol denied him a fundamentally fair trial, and (2) that his lawyers at trial were so ineffective as to deny him his Sixth Amendment right to counsel. Because the merits of these claims are not properly before us, we affirm the district court's decision to deny the writ.

I

On November 29, 1986, police discovered Allen Nuccio's bullet-ridden body in the back of his tow truck, which had been parked in a vacant lot near his home. Nuccio was Howard's roommate, and both men were involved with drugs. Sometime that fall, Howard and his associates had begun to fear that Nuccio was an undercover police officer (they were wrong). One of Howard's friends, Tim Taylor, subsequently shot and wounded Nuccio in the apartment Howard and Nuccio shared. When Nuccio did not die immediately, Howard and another man, Thomas Bentley, carried Nuccio to a nearby alley, where they beat him. Howard then shot Nuccio several times in the head, neck, and chest using a .22 caliber pistol, leading at last to his death.

The evidence against Howard included Gidget Robbins' eyewitness testimony identifying Howard as the person who shot Nuccio in the alley, Bentley's testimony that he helped Howard carry Nuccio into the alley, Gidget Robbins' and Sean Dwyer's eyewitness testimony about the shooting in the apartment, and Chicago Police Detective Robert Lane's testimony that he observed fresh paint in Howard's apartment within two days of the murder. Another witness, Christine Robbins, testified that she overheard Howard voicing suspicion that Nuccio was a cop. She also saw Howard with a .22 caliber pistol the night of the murder, and she later heard him boast that he had killed Nuccio. Howard was sentenced to 36 years in prison.

II

At Howard's trial, the state offered and the court accepted into evidence a .38 caliber pistol found in Howard's possession during a traffic stop several days after the murder. This gun bore no relation to the crime for which Howard was being tried, because Nuccio had concededly been murdered with a .22 caliber pistol. As the Illinois Appellate Court recognized, People v. Howard, 568 N.E.2d 56, 69 (Ill. App. Ct. 1991), it was therefore error to admit the .38 caliber gun into evidence. United States v. Reid, 410 F.2d 1223, 1226 (7th Cir. 1969); People v. Jones, 177 N.E.2d 112, 116 (Ill. 1961). We have no reason to disagree with that assessment, but our role in this case is not to identify any and all errors at trial. Howard seeks a writ of habeas corpus, which a federal court can only issue when a constitutional right has been abridged. 28 U.S.C. sec. 2241(c)(3). Consequently, Howard must show that the evidentiary error was of such magnitude that it took on a constitutional dimension.

But first Howard faces a different hurdle. The district court, which considered and denied Howard's claim on its merits, did not certify this issue for appeal. In most circumstances, we will not entertain an appeal from the denial of a writ of habeas corpus without a certificate of appealability. 28 U.S.C. sec. 2253(c)(1)(A). Nevertheless, the lack of a certificate is not fatal to Howard's claim because, when a district court does not certify an issue for appeal, we may do so ourselves if we conclude that the petitioner "has made a substantial showing of the denial of a constitutional right." Id. sec. 2253(c)(2). Construing Howard's notice of appeal as a request for a certificate of appealability, Fed. R. App. P. 22(b)(2), we now consider whether his request should be granted.

To be of constitutional import, an erroneous evidentiary ruling must be so prejudicial that it compromises the petitioner's due process right to a fundamentally fair trial. United States ex rel. Clark v. Fike, 538 F.2d 750, 757 (7th Cir. 1976); cf. Duncan v. Henry, 513 U.S. 364, 366 (1995). This means that the error must have produced a significant likelihood that an innocent person has been convicted. See Thompkins v. Cohen, 965 F.2d 330, 333 (7th Cir. 1992). Indeed, because of this high standard, evidentiary questions are generally not subject to review in habeas corpus proceedings. United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7th Cir. 1974).

This case is no exception to that general principle. Any prejudicial effect the .38 caliber pistol may have had on the jury cannot alone be responsible for Howard's conviction. The jury's finding is amply supported by other evidence, such as the testimony of witnesses who helped Howard carry Nuccio into the alley, who saw him shoot Nuccio there, who observed him with a .22 caliber pistol the night of the murder, and who later heard him brag about it. In the face of this powerful record, no rational person could think that the jury was swayed by the taint of multiple gun possession and rushed to convict an innocent man. Because Howard cannot raise a substantial claim that the erroneous admission of the gun into evidence violated his due process rights, we decline to issue a certificate of appealability.

III

Howard next contends that his trial counsel was so ineffective as to deprive him of his Sixth Amendment right to representation. The district court reviewed this claim and denied it on its merits. After reviewing the record of proceedings before the state courts, we conclude that Howard procedurally defaulted this claim. As a technical matter, the district court therefore should not have reached it in its opinion. We note, however, that the rules for procedural default in habeas cases have become Byzantine in their complexity, and in some cases a district judge may be uncertain whether or not default has occurred. In that situation, the judge may wish to discuss an issue that is potentially defaulted, and we do not mean here to discourage that practice if it seems likely to save time in the long run.

Howard claims that his trial counsel failed to investigate and interview numerous potential alibi witnesses and to gather certain documentary evidence that might have cast doubt on the credibility of prosecution witnesses. According to Howard, potential witnesses Steve Miller and Jeff Estrada would have testified that Howard was with them in the bar on the ground floor of his apartment building rather than in his apartment or outside in the alley when Nuccio was murdered. He claims that Leroy McNamara would have testified that he spoke to Howard the night of the murder at the precise time at which prosecution witnesses placed him in his apartment, ingesting drugs. Tabitha and Jeany Wolford, Howard claims, could corroborate that they accompanied him to the Daley Center the morning Christine Robbins testified that Howard was elsewhere, bragging about killing Nuccio. Howard also claims that his employer could have corroborated that he was at work at the time that Robbins said she heard him in his apartment, arguing with Nuccio. (Of all of these potential witnesses, only Jeany Wolford provided an affidavit to the court. Were we to reach the merits of this claim, Howard's failure to submit supporting affidavits from these potential witnesses would severely hobble his case. See United States ex rel. Cross v. DeRobertis, 811 F.2d 1008, 1016 (7th Cir. 1987).) Howard blames his trial attorneys for not presenting these witnesses in his defense.

Howard also faults his counsel for failing to obtain certain records that he believes would have helped exonerate him. He complains that his counsel should have located an advertisement offering a reward for information relating to Nuccio's death, because he thinks this advertisement gave prosecution witnesses an...