Lewis v. Zatecky, 20-1642

• Decision Date: 13 April 2021
• Docket Number: No. 20-1642,20-1642
• Parties: Roderick V. LEWIS, Petitioner-Appellant, v. Dushan ZATECKY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

993 F.3d 994

Roderick V. LEWIS, Petitioner-Appellant,

v.Dushan ZATECKY, Respondent-Appellee.

No. 20-1642

United States Court of Appeals, Seventh Circuit.

Argued September 30, 2020

Decided April 13, 2021

Rehearing and Rehearing En Banc Denied May 11, 2021

Michael Ausbrook, Attorney, Bloomington, IN, for Petitioner-Appellant.

Jesse Drum, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before Sykes, Chief Judge, and Wood and Brennan, Circuit Judges.

Wood, Circuit Judge.

When has a client charged with a serious crime received not merely inadequate assistance of counsel, but a failure of representation so serious that "counsel has entirely failed to function as the client's advocate"? Florida v. Nixon, 543 U.S. 175, 189, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). This is the situation the Supreme Court first addressed in United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Although such a total breakdown is rare, the Court has never wavered from the recognition that it can occur. In such cases, unlike those presenting more conventional ineffective-assistance claims, the defendant does not need to make an independent showing of prejudice. See Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The failing is so profound that prejudice is inherent in the situation.

In the case before us, Roderick Lewis argues that his is one of the extraordinary cases to which the Cronic rule applies. Standing convicted of felony murder, he received literally no assistance from his lawyer during the sentencing stage of the trial. After proceedings in the state courts, which we detail below, he turned to federal court and filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied relief, but it issued a certificate of appealability to Lewis. We conclude that the decision of the last responsible state court was contrary to Supreme Court precedent, insofar as it held that Strickland , not Cronic , furnished the applicable rule, and it was an unreasonable application of Cronic , insofar as it focused on that case.¹ We thus reverse and remand for issuance of the writ, limited to sentencing.

I

A

We take our account of the underlying facts from the second opinion of the Court of Appeals of Indiana, the last state court to consider this case. See Lewis v. State (Lewis II ), 116 N.E.3d 1144 (Ind. Ct. App. 2018). That court in turn relied on the facts it had reported on direct appeal, see Lewis v. State (Lewis I ), 973 N.E.2d 110 (Table), (Ind. Ct. App. 2012), but we can largely disregard that detail.

The case involved a toxic mixture: drugs, robbery plans, guns, and immaturity. Richard Rogers, then 16 years old, ran a drug house in Fort Wayne, Indiana, with Sidney Wilson, 14 years old. On June 29, 1999, Rogers invited Christopher Hale to visit the drug house, but Hale declined because of tensions with Wilson. Later that evening, Hale, petitioner Roderick Lewis, and Kajuanta Mays came up with a plan to rob Rogers and Wilson of both drugs and money. They first confirmed that Rogers and Wilson were alone by sending Angela Lawson to the house to buy drugs. Hale then showed up, followed by Lewis and Mays. The group smoked and drank together. Two of them were armed: Lewis had a .38 special revolver, and Hale had a 9 mm firearm.

At one point Hale went upstairs. When he returned, he said "die bitch" and shot Wilson five times, killing him. Rogers and Lewis then each reached for a shotgun. Hale told Lewis to kill Rogers, but Lewis refused, instead handing his revolver to Mays and saying, "if you want it ... you do it." Mays did not hesitate: he shot Rogers multiple times, fatally. Lewis, Hale, and Mays then collected the drugs and money and fled. They wound up in a hotel where they laughed and partied through the night. Later, Lewis had his uncle bury the murder weapon.

For the next few years, the crime remained unsolved and Lewis traveled around the country, living in Arizona and Indiana. Ultimately, however, investigators in Fort Wayne identified him as a suspect in the 1999 murders. They found him in a prison in May 2009 and interviewed him; on February 25, 2011, the State of Indiana charged him with two counts of felony murder and two counts of robbery. He was arrested on June 27, 2011.

B

At trial, Lewis was represented by Attorney Jeffrey Raff. Raff tried to get Lewis seriously to consider some plea offers, but Lewis was uninterested, perhaps because he did not understand the concept of felony murder and thought that, because he did not shoot either Wilson or Rogers, he was not guilty. If that was his impression, he was mistaken. The jury found Lewis guilty as charged.

The problems that bring Lewis before us today arose at the sentencing phase. Here is how the Indiana Court of Appeals described Raff's assistance to Lewis at that critical point:

"Judge I'm going to defer to Mr. Lewis if he has any comments. I don't have anything to add." Sentencing Transcript at 23–24. This is the sum total of trial counsel's participation at Lewis's sentencing hearing, at which Lewis was being sentenced for two counts of felony murder and faced a maximum sentence of 130 years in prison. The trial court found no mitigating circumstances—none being asserted by the defense—and sentenced Lewis to the maximum aggregate sentence of 130 years in prison.

Lewis II , ¶ 1. Represented by new counsel, Lewis took a direct appeal, but it was unsuccessful. See Lewis I. Acting pro se, Lewis then filed a post-conviction petition in the state court in 2013. Post-conviction counsel amended that petition in October 2016, and the court held an evidentiary hearing on July 7, 2017.

Lewis called Attorney Raff, among others, to testify at that hearing. The state conceded that Raff "basically did not do any advocacy at the sentencing hearing" but argued that he could not have made a difference anyway. Raff himself testified about his normal procedures for preparing for a sentencing hearing. He also described quite a few things that he did not do:

He made no inquiries about Petitioner's mental health history, and was not aware that Petitioner had attempted suicide at the Allen County Jail. ... He did not ask Petitioner about his upbringing or his family members, did not speak to his relatives or friends, and did not have him examined by a mental health professional. He did not prepare Petitioner to make a statement at sentencing, and explained that Petitioner did not take his advice well.

Lewis II, ¶ 16, quoting from the post-conviction court's findings of fact. Essentially Raff thought that Lewis was a hope-less cause, and so there was nothing useful Raff could do. Other witnesses at the post-conviction hearing spoke about evidence that might have had an impact at sentencing, including a psychologist who diagnosed Lewis with bipolar II disorder and discussed his associated substance-abuse problem, physical abuse by his mother's boyfriends, mental disorders in other family members, and his attempted suicide. None of this, it bears repeating, was brought out during the sentencing stage of the trial.

On state post-conviction review, the state appellate court "agree[d] with Lewis that trial counsel's performance at sentencing was clearly deficient." Lewis II , ¶¶ 4, 20. Nevertheless, the court held that "our review leaves us with the firm conviction that Lewis was not prejudiced by counsel's deficient performance." Id. ¶ 20. It reviewed the following potential mitigating circumstances: Lewis's role as an accomplice; his age; his difficult childhood; and his mental health. None of these could have supported a finding of prejudice, in the court's view, nor was it troubled by his consecutive sentences.

Finally, the court turned to the issue that has survived to reach us: whether the proper standard for assessing Lewis's case comes from Cronic , as Lewis argues, or Strickland . If it is Strickland , then Lewis's case is over: we cannot say that the Indiana Court of Appeals was unreasonable when it found that Lewis had not been prejudiced by his attorney's substandard performance. (We add that we are not necessarily saying that we would have resolved the prejudice issue the same way. We mean only that we are satisfied that the state court acted within the generous boundaries delineated for it by 28 U.S.C. § 2254(d)(1).) If Cronic applies, however, then matters are quite different, because prejudice need not be shown. But the state court found that Lewis's case did not fit within the Cronic framework. Lewis II , ¶ 39. Its finding of no prejudice for Strickland purposes required it to affirm the trial court's denial of post-conviction relief.

After exhausting his state-court remedies, Lewis filed a petition under 28 U.S.C. § 2254 in the federal court. The district court acknowledged that in Miller v. Martin , 481 F.3d 468 (7th Cir. 2007), this court had found that the Indiana court had unreasonably failed to apply Cronic to an attorney's performance at sentencing, and thus that petitioner Miller was entitled to the issuance of a writ of habeas corpus. Id. at 470. But, the court thought, Miller had been undermined by two decisions of the U.S. Supreme Court: Wright v. Van Patten , 552 U.S. 120, 128 S.Ct. 743, 169 L.Ed.2d 583 (2008), and Woods v. Donald , 575 U.S. 312, 135 S.Ct. 1372, 191 L.Ed.2d 464 (2015). It characterized what happened in Lewis's case as counsel's complete failure to subject the prosecution's case to adversarial testing, and it then concluded that no Supreme Court decision squarely addressed that situation. It thus concluded that the criteria for the issuance of a writ were not met. But the court also recognized that "[r]easonable jurists could disagree about whether Cronic clearly establishes an exception to Strickland ’s prejudice requirement" on these facts, and so it issued a certificate of appealability to Lewis limited to this issue.

II

We begin with a review of the...