Northern v. Boatwright

• Decision Date: 29 January 2010
• Docket Number: No. 08-3272.,08-3272.
• Citation: 594 F.3d 555
• Parties: Lawrence NORTHERN, Petitioner-Appellant, v. Ana BOATWRIGHT, Warden, New Lisbon Correctional Institution, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

594 F.3d 555

Lawrence NORTHERN, Petitioner-Appellant, v. Ana BOATWRIGHT, Warden, New Lisbon Correctional Institution, Respondent-Appellee.

No. 08-3272.

United States Court of Appeals, Seventh Circuit.

Argued November 10, 2009.

Decided January 29, 2010.

Robert N. Meyeroff (argued), Milwaukee, WI, for Petitioner-Appellant.

Marguerite M. Moeller (argued), Office of the Attorney General Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before POSNER and FLAUM, Circuit Judges, and DER-YEGHIAYAN, District Judge.^*

FLAUM, Circuit Judge.

Lawrence Northern was convicted in Wisconsin state court of possessing more than 100 grams of cocaine with the intent to distribute it. After his direct appeal and a number of postconviction actions in Wisconsin courts, Northern petitioned the Western District of Wisconsin for a writ of habeas corpus. Northern claims his trial counsel was ineffective because he did not challenge an allegedly deficient jury instruction and did not object to an amended information filed by the prosecution on the day of trial. He also claims his appellate counsel was ineffective for not raising the first issue on direct appeal. The district court held that the state court reasonably applied Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), when it denied Northern's claims on the merits, and thus dismissed Northern's petition. We affirm.

I. Background

On September 14, 2001, Northern and four co-defendants were charged in Wisconsin state court with possessing with the intent to deliver more than 100 grams of cocaine. There were six counts: one for each month between January and June of 2001. Northern was also charged individually with one count of possessing with the intent to deliver more than 15 but not more than 40 grams of cocaine, on September 20, 2001.

At a hearing on January 8, 2002, the afternoon before trial, Northern learned that one of his co-defendants, Hollie Peterson, had pleaded guilty and would be testifying for the state. The trial court offered an adjournment to allow the defendants time to prepare. Instead, all defendants agreed to proceed with the trial. The prosecutor then requested and received permission to file an amended information¹ to eliminate the charges against Peterson.

The next morning the prosecutor filed the amended information. It not only dismissed Peterson's charges but consolidated the six counts of the previous information into one count: possessing with intent to distribute more than 100 grams of cocaine between January and September of 2001 (the additional count, charging Northern alone with possessing 15 to 40 grams of cocaine on September 20, 2001, remained). Northern did not have advance warning that the amended information would alter the charges against him. Neither his attorney nor any of his co-defendants' attorneys objected, and the case proceeded to trial that day.

At trial, two witnesses testified against Northern. The first, Sheri Mitchell, testified that in January of 2001, Northern delivered at least one-quarter kilogram of cocaine to her home so that she could process and sell it. Mitchell also testified that between January and July of 2001, Northern delivered at least one-quarter kilogram of cocaine to her home on five to ten different occasions. The second witness, Hollie Peterson, testified that on one occasion Northern delivered 125 grams of cocaine to her for processing and sale. She did not know the exact date but stated that she still had most of it when she was arrested in September of 2001.

At the close of trial on January 11, 2002, the trial court instructed the jury that, should it find any of the defendants guilty, it would have to answer questions on the verdict form as to the amount of cocaine involved. The judge also instructed the jury that it would have to be "satisfied beyond a reasonable doubt as to the amount of cocaine for each count." During deliberations, the jury asked the following question:

On count one regarding one of the defendants we all agree that he is guilty of possession with intent to deliver cocaine as a party to a crime during January-September 2001. However, there is one juror who does not believe without reasonable doubt that there was more than one hundred grams. Do we have to have an unanimous vote on that as well or do we just answer that as no?

After discussing the matter with the defendants' attorneys, the prosecutor told the judge that defense counsel had advised him that they would rather have the jury write down the amount on which it could unanimously agree instead of having the court instruct the jury on a specific lesser included amount. The circuit court then told the jury the following:

Your verdict must be unanimous and if you are unable to unanimously agree as to one of the defendants that the evidence established beyond a reasonable doubt that he possessed with intent to deliver more than one hundred grams, then I would ask you to fill in whatever amount you can unanimously agree the evidence established beyond a reasonable doubt was possessed with intent to deliver.

After further deliberation, the jury found that all codefendants, including Northern, were guilty of possession with intent to distribute more than one hundred grams of cocaine. The jury also found Northern guilty of possession with intent to distribute 15 to 40 grams of cocaine. On July 17, 2002, the district court sentenced Northern to 30 years in prison and 10 years extended supervision on the first offense and 20 years in prison and 10 years of extended supervision on the second offense, to run concurrently.

Northern appealed his conviction, arguing that the state violated his due process rights by violating its discovery obligations to him. On November 4, 2003, the Wisconsin Court of Appeals affirmed his conviction, finding that he had failed to preserve this issue for appellate review. The Wisconsin Supreme Court denied his petition for review on March 23, 2004.

In March 2005, Northern filed a motion for a new trial under Wis. Stat. § 974.06. Among other things, he argued for the first time that his trial counsel was ineffective because he failed to challenge the defective jury instruction. The circuit court denied Northern's motion without a hearing and without stating reasons. On appeal, the Wisconsin court of appeals held that Wis. Stat. § 974.06(4) barred Northern from raising his ineffective assistance of counsel claim for the first time in a collateral proceeding. The court of appeals also rejected Northern's alternative argument that his postconviction counsel was ineffective for failing to raise ineffective assistance of trial counsel as an issue on direct appeal. The court of appeals noted that Northern, his trial attorney, his co-defendants, and his co-defendants' attorneys had all approved the jury instruction after a lengthy discussion on the record. It then reasoned that "[a] defendant who fails to object to errors in a proposed jury instruction waives his right to raise the issue on appeal. Postconviction counsel was, therefore, not ineffective for failing to raise this claim."

On August 18, 2006, Northern filed a pro se petition for a writ of habeas corpus directly with the Wisconsin court of appeals, pursuant to State v. Knight, 168 Wis.2d 509, 484 N.W.2d 540 (1992) (holding that a habeas corpus petition filed in the court of appeals is the proper vehicle for raising claims of ineffective assistance of appellate counsel).² Among other claims, Northern argued that his appellate counsel was ineffective for failing to allege ineffective assistance of trial counsel based on trial counsel's failure to object to the amended information. The court of appeals denied Northern's petition on March 15, 2007, noting that he had failed to serve the petition on the state and that his claims were unlikely to succeed on the merits. In its written opinion, the court of appeals did not specifically mention Northern's argument based on the amended information.

On September 8, 2006, Northern filed his second § 974.06 motion. In this motion, he alleged that his trial counsel was ineffective for failing to object to the state's last-minute amendment of the information. The circuit court denied the motion without a hearing and without stating its reasons for doing so. Northern appealed. On November 29, 2007, the court of appeals affirmed, denying his claim on the merits. The court of appeals first noted that Northern had sufficiently explained his failure to raise this claim on direct appeal or in his earlier postconviction proceedings. The court then went on to reject Northern's argument that the trial court would have compelled the state to prosecute the multiple-count information as a sanction for not divulging its intent to broaden the timeframe it alleged. The appellate court also rejected Northern's argument that the multiple-count information would have resulted in his acquittal on each of the six unconsolidated charges. Concluding that because Mitchell's testimony supported Northern's conviction on at least one count—and possibly more—of the original information, he would have been no better off under the original information and dismissed his ineffective assistance of counsel claim for lack of prejudice. The Wisconsin Supreme Court denied his petition for review on January 22, 2008.

Northern filed a petition for a writ of habeas corpus in the Western District of Wisconsin on April 2, 2008. Northern raised both his jury instruction and amended information claims, alleging that his trial attorney's conduct in each of these instances amounted to ineffective assistance of counsel. Northern's petition was referred to Magistrate Judge Stephen Crocker, who, on July 28, 2008, issued a report and recommendation that Northern's petition be denied. The district court issued an order and judgment on August 18, 2008, adopting the magistrate's recommendation and...