Murillo v. Frank

• Decision Date: 01 April 2005
• Docket Number: No. 04-2202.,04-2202.
• Parties: Edward A. MURILLO, Petitioner-Appellee, v. Matthew J. FRANK, Secretary, Wisconsin Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

402 F.3d 786

Edward A. MURILLO, Petitioner-Appellee, v. Matthew J. FRANK, Secretary, Wisconsin Department of Corrections, Respondent-Appellant.

No. 04-2202.

United States Court of Appeals, Seventh Circuit.

Argued January 18, 2005.

Decided April 1, 2005.

Craig W. Albee (argued), Glynn, Fitzgerald & Albee, Milwaukee, WI, for Petitioner-Appellee.

William L. Gansner (argued), Office of the Attorney General, Madison, WI, for Respondent-Appellant.

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

Santiago Herrera was shot and killed in 1998. He was a casualty of a conflict between the Latin Kings (Herrera's gang) and La Familia about what in antitrust law would be called exclusive retail sales territories. Zebulon Robinson, who had been negotiating to purchase marijuana from Herrera, saw the murder and at trial identified as the shooter Edward Murillo, one of three members of La Familia who had approached Herrera and proclaimed that La Familia owned the territory. Robinson's word was of uncertain reliability — he had been engaged in an illegal drug transaction, his recollection of events changed over time, and, worse, he had taken the murder weapon to a friend to hide, though he testified that the assassin had tossed him the gun while fleeing. So the prosecutor wanted additional evidence. The state called Luis Murillo, Edward's brother. But Luis refused to testify, even after receiving immunity from prosecution and being held in contempt for his intransigence. With Luis unavailable, the prosecutor offered — and the judge admitted, over an objection based on the Constitution's confrontation clause — a statement that Luis had made during custodial interrogation six days after Herrera's death.

Luis told the police a series of lies. First he denied being anywhere near the murder. He had been with his girlfriend at the time, Luis asserted. An officer checked out the story (or pretended to) and told Luis that his alibi did not hold up. Moreover, the officer said, a Crime Stoppers tip had placed Luis at the scene. Luis then said that he had indeed been nearby and had seen the perpetrators running away, but that he had nothing to do with the crime. During the interrogation Luis became increasingly upset and nervous, breaking into tears when the officers refused to accept his version of events. After still more attempts at evasion, Luis stated that he had seen his brother Edward approach Herrera and pull the trigger. Luis signed an affidavit to that effect. But Luis denied being one of the triad who had approached Herrera; how he could have seen the events so clearly, if he had not been part of the delegation, he did not reveal. (Luis said in his statement and affidavit that Robinson was the third member of the group; Robinson testified that Luis was the third.)

The jury convicted Edward of first degree murder and two firearms offenses. He was sentenced to life imprisonment. Wisconsin's intermediate appellate court affirmed, rejecting his argument under the confrontation clause, see 240 Wis.2d 666, 623 N.W.2d 187 (2000), and the Supreme Court of Wisconsin declined to hear the case. Edward fared better on federal collateral review under 28 U.S.C. § 2254. The district court issued a writ of habeas corpus in his favor, concluding that the state judiciary's decision was contrary to Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), a decision that the district judge viewed as on all fours, right down to fact that the declarant was the defendant's brother. 316 F.Supp.2d 744 (E.D.Wis.2004). Wisconsin contends in this court that Lilly is distinguishable because the statement there had been admitted on the ground that it was against the declarant's penal interest, while admission of Luis's affidavit rests on the ground that it undercut his social interest. Wisconsin is among those states (a distinct minority) that deem a declaration against "social interest" — that is, a statement that shames the speaker in his community — an exception to the hearsay doctrine. See Wis. Stat. § 908.045(4); Thomas J. Imwinkelreid, Declarations Against Social Interest: The (Still) Embarrassingly Neglected Hearsay Exemption, 69 S. Cal. L.Rev. 1427 (1996). The idea is that Luis's statement violated the social norm of solidarity among gang (and family) members, so that Luis would not have accused Edward unless the accusation were true.

Wisconsin's judiciary used the framework of Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which stated that hearsay is compatible with the confrontation clause when supported by (1) a "firmly rooted hearsay exception" or (2) "particularized guarantees of trustworthiness". The state acknowledges that the "social interest" doctrine is novel rather than established by force of history but contends that it satisfies Roberts's second option and insists that Lilly does not hold otherwise.

If this question were to arise today, the governing decision would be Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), rather than Roberts or Lilly. The Court held in Crawford that, when testimonial declarations (such as affidavits or formal confessions) are at issue, judicial assessments of reliability never suffice and that an opportunity to cross-examine the declarant is essential. Edward was unable to cross-examine Luis, so Crawford amounts to a per se rule that his statement and affidavit were inadmissible. But Crawford was not issued until after Edward's conviction became final through the conclusion of direct review, and the district court held that it could not be applied retroactively on collateral attack. 316 F.Supp.2d at 749-50. Edward defends the judgment in his favor by asking us to apply Crawford, which would avoid any need to consider Roberts and Lilly.

The parties debate whether Crawford applies retroactively under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its successors — most recently, Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), and Beard v. Banks, ___ U.S. ___, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004). Section 2254(d)(1) says that the writ shall not issue unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States". A natural reading of § 2254(d)(1) is that the only federal law that matters is the law that had been "clearly established" when the state court is called on to decide. See Williams v. Taylor, 529 U.S. 362, 390, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Gosier v. Welborn, 175 F.3d 504, 510 (7th Cir.1999) (" § 2254(d)(1) means that only rules articulated by the Supreme Court of the United States before the state court rendered its decision may be applied on collateral review. Section 2254(d)(1) differs from Teague because the new statute closes the escape hatches in Teague") (emphasis in original). See also Ramdass v. Angelone, 187 F.3d 396, 406 (4th Cir.1999); Randy Hertz & James S. Liebman, 2 Federal Habeas Corpus Practice & Procedure § 32.3 at 1430 (4th ed.2001).

There is a provision for giving effect to retroactive legal changes, but it lies in § 2244(b)(2)(A) and depends on the Supreme Court's own declaration that its decision meets the Teague standard. See, e.g., Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001). The Supreme Court has not held that Crawford applies retroactively on collateral review. Because the Supreme Court rarely decides retroactivity as part of the original opinion, reading § 2254(d)(1) to prevent any other court from making the retroactivity decision would mean that the year allowed to initiate a collateral proceeding often would expire. The Supreme Court may decide in Dodd v. United States, cert. granted, ___ U.S. ___, 125 S.Ct. 607, 160 L.Ed.2d 456 (2004) (argued March 22, 2005), whether prisoners bear the risk of delay until a retroactivity decision can be made. While waiting for the outcome of Dodd, we deem it best to address how Crawford is classified under Teague. Unless Crawford meets the Teague standard for retroactivity, whether § 2254(d)(1) allows a court of appeals to make its own retroactivity assessment is unimportant.

Teague and its successors say that a new rule of constitutional law is retroactive on collateral attack only if it places certain conduct beyond the reach of the criminal law (that is, establishes that the defendant's acts were not subject to punishment) or if it establishes one of the rare "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." O'Dell v. Netherland, 521 U.S. 151, 157, 117 S.Ct. 1969, 138 L.Ed.2d 351 (1997). Three courts of appeals have held that Crawford is not retroactive under this approach. Mungo v. Duncan, 393 F.3d 327 (2d Cir.2004); Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir.2005); Brown v. Uphoff, 381 F.3d 1219, 1226-27 (10th Cir.2004). One court has held that Crawford is retroactive — though not by application of the Teague standard. Bockting v. Bayer, 399 F.3d 1010 (9th Cir.2005). The three judges in Bockting wrote separately. Judge Noonan concluded that Crawford applies on collateral review because it did not change the law. Judge McKeown concluded that Crawford did change the law, and changed it so dramatically that it established a "watershed rule" that applies retroactively. Judge Wallace agreed with Judge McKeown that Crawford changed the law but disagreed with her understanding of Crawford s fundamentality. He saw it as an ordinary development in criminal procedure that like almost all other such changes applies prospectively. We agree with this perspective and thus follow Mungo, Dorchy, and Brown.

It is obvious to us — as it was to a prior panel, see Owens v. Frank, 394 F.3d 490, 501 n. 8 (7th Cir.2005) — that Crawford establishes a...