Lilly v. Gilmore

• Decision Date: 17 March 1993
• Docket Number: No. 92-2097,92-2097
• Parties: James LILLY, Petitioner-Appellee, v. Jerry D. GILMORE, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 783

988 F.2d 783

James LILLY, Petitioner-Appellee, v. Jerry D. GILMORE, Warden, Respondent-Appellant.

No. 92-2097.

United States Court of Appeals Seventh Circuit.

Argued Jan. 8, 1993.

Decided March 17, 1993.

George F. Taseff (argued), Jennings, Novick, Taseff, Smalley & Davis, Bloomington, IL, for petitioner-appellee.

Bradley P. Halloran (argued), Office of the Atty. Gen., Chicago, IL, Karen A. Kloppe, Office of the Atty. Gen., Crim. Appeals Div., Springfield, IL, for respondent-appellant.

Before FLAUM and MANION, Circuit Judges, and MILLER, District Judge. ^*

MILLER, District Judge.

The State of Illinois appeals an order granting petitioner James Lilly's petition for habeas corpus. The district court found that Mr. Lilly had been deprived of effective assistance of appellate counsel because his counsel failed to raise issues concerning a violation of the strictures of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and concerning a limitation on the presentation of evidence at trial favorable to the defense. For the following reasons, we reverse.

Mr. Lilly was convicted in December 1982 of deviate sexual assault and indecent liberties with a child, and, because of his two prior similar convictions, was sentenced to concurrent sentences of forty and fifteen years. On direct appeal, Mr. Lilly's appointed counsel challenged only the indecent liberties conviction. Mr. Lilly raised other issues (though not the issues pressed in this case) in a supplemental pro se brief with the state appellate court. In an unpublished order, the Illinois Appellate Court reversed the indecent liberties conviction but affirmed the deviate sexual assault conviction. The Illinois Supreme Court denied Mr. Lilly's pro se petition for leave to appeal.

In 1987, Mr. Lilly sought post-conviction relief from the Illinois courts, raising (among others) the issues now before this court. The state appellate court held that Mr. Lilly had waived his ineffective assistance of counsel claims by failing to raise them in his pro se supplemental brief on direct appeal, and, alternatively, that no prejudice had been shown because the trial court's rulings were correct. After the Illinois Supreme Court denied leave to appeal, Mr. Lilly sought a writ of habeas corpus from the United States District Court for the Central District of Illinois. The State's initial response to the petition explicitly stated that "it would appear that no procedural bar precludes this court from addressing the merits", and went to the merits of Mr. Lilly's ineffective assistance of counsel claims. The district court found that the State had waived any procedural challenge and that Mr. Lilly had received ineffective assistance of counsel on his direct appeal, and so granted the writ and ordered the State to retry Mr. Lilly within 120 days.

The State appeals. Our review is plenary. Freeman v. Lane, 962 F.2d 1252 (7th Cir.1992). "A federal district court reviewing a habeas petition must perform its own review and we must do the same." United States ex rel. Partee v. Lane, 926 F.2d 694, 700 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1230, 117 L.Ed.2d 464 (1992).

A. Procedural Default

The State contends that the state appellate court's finding of waiver precludes federal habeas review. We agree with the district court that the State waived this argument. Not only did the State initially fail to address the procedural default argument; its answer affirmatively admitted the absence of any procedural bar. See Wilson v. O'Leary, 895 F.2d 378, 384 (7th Cir.1990) ("Procedural rules apply to the government as well as to the defendants.... [I]f as a result a violent offender goes free, the Attorney General of Illinois must understand where the responsibility lies--with his own staff.").

We would reach the merits even had the State not waived the issue. As noted above, the state appellate court rejected Mr. Lilly's post-conviction efforts on the ground that Mr. Lilly waived his new arguments by failing to raise them in his pro se supplemental brief on his direct appeal. While a federal court may not review a decision based on independent and adequate state law grounds, Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), a rule applied infrequently, unexpectedly, or freakishly may not constitute an independent and adequate state ground. Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir.1990). Mr. Lilly argues ineffective assistance of appellate counsel. The State concedes that no Illinois decision before or after Mr. Lilly's case has found waiver from an issue's omission from a pro se brief filed by an appellant dissatisfied with his appointed counsel's brief; this court does not believe that the Illinois Appellate Court announces new rules of law in unpublished decisions. Because Illinois precedent did not support the principle upon which the state appellate court acted, the appellate court's decision cannot be said to have been based on an adequate state ground. Accordingly, the district court correctly proceeded to address the merits of Mr. Lilly's claim of ineffective assistance of counsel, as do we.

B. Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel trigger the two-step analysis of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Mr. Lilly must show that (1) his appellate counsel's performance fell below an objective standard of reasonableness, and (2) his appellate counsel's deficiencies prejudiced the result of the appeal. Freeman v. Lane, 962 F.2d at 1257; see Strickland v. Washington, 466 U.S. at 687-88, 104 S.Ct. at 2064-65. A habeas petitioner satisfies the performance prong by identifying specific acts or omissions that fell outside the wide range of professionally competent assistance; to satisfy the prejudice prong, a habeas petitioner must demonstrate a reasonable probability that counsel's unprofessional errors affected the outcome of the proceeding. Strickland v. Washington, 466 U.S. at 690, 104 S.Ct. at 2066. For federal habeas purposes, a state court's holding that counsel rendered effective assistance is not a factual finding binding on federal courts to the extent stated by 28 U.S.C. § 2254. Rather, the issue of counsel's effectiveness is a mixed question of law and fact. Strickland v. Washington, 466 U.S. at 698, 104 S.Ct. at 2070; United States ex rel. Barnard v. Lane, 819 F.2d 798, 802 (7th Cir.1987).

1. Failure to Raise Miranda Issue

The Miranda issue centers upon an unrecorded post-arrest conversation between Mr. Lilly and Sergeant James Graham. Because Mr. Lilly did not testify at trial, Sgt. Graham's testimony constitutes the sole evidence before any court concerning the conversation. Mr. Lilly had been arrested at a hospital on the day of the charged sexual assault on his niece. Sgt. Graham testified that he informed Mr. Lilly of his Miranda rights and that Mr. Lilly nodded affirmatively when asked if he understood them. Sgt. Graham then asked Mr. Lilly if he wished to talk about the deviate sexual assault on his niece, and Mr. Lilly responded, "I guess I don't have anything to say." Sgt. Graham asked what was meant by "I guess", and Mr. Lilly said that he really didn't know what happened, and that was why he was trying to get help at a hospital. Sgt. Graham asked why Mr. Lilly wanted help, and Mr. Lilly said he wanted help for things he does but does not remember. Sgt. Graham asked what the things are that Mr. Lilly does not remember, and whether the cause could be drinking; Mr. Lilly said no, he didn't drink. Sgt. Graham asked if it could be from taking pills or the like, and Mr. Lilly said no, he didn't take pills.

Sgt. Graham then asked about the events with Mr. Lilly's niece that morning. Mr. Lilly said he remembered that she had been coming to his apartment every morning, but did not recall what had happened that morning. Mr. Lilly added that if his niece said he did that, he must have done it because his niece had no reason to lie.

Based on that evidence, the Illinois Appellate Court, applying its own standard of review in denying Mr. Lilly's post-conviction petition, held that:

Following a hearing on the petitioner's motion to suppress these incriminating statements, the trial court found that the petitioner's Miranda rights were not violated since he did not affirmatively invoke his right to remain silent.... Here, we find that the court's decision was not manifestly erroneous. The evidence supports the court's finding that the petitioner's statement was unclear as to whether he was invoking his Miranda rights.

In granting Mr. Lilly's habeas petition, the district court found the performance of Mr. Lilly's appellate counsel to have been defective in two respects, the first of which was the failure to challenge the trial court's denial of the motion to suppress Mr. Lilly's post-arrest statements to a police officer. The district court's analysis began with a finding, based on Christopher v. State of Florida, 824 F.2d 836 (11th Cir.1987), cert. denied sub nom., Dugger v. Christopher, 484 U.S. 1077, 108 S.Ct. 1057, 98 L.Ed.2d 1019 (1988), and United States v. Gotay, 844 F.2d 971 (2nd Cir.1988), that Mr. Lilly's Miranda rights were violated. From this finding, the district court reasoned that appellate counsel's failure to raise a meritorious Miranda claim lacked any plausible tactical basis, and so fell outside the range of professional performance required by the Sixth Amendment. Finally, the district court concluded that actual prejudice had been shown because another court would have reversed due to the Miranda violation.

We believe a different analysis is required. The threshold question is not whether today's law discloses a Miranda violation; Mr. Lilly does not seek a writ of habeas corpus on Fourth or Fifth Amendment grounds. Because Mr. Lilly claims a deprivation of his Sixth Amendment right to effective...