Pitsonbarger v. Gramley

• Decision Date: 20 February 1997
• Docket Number: No. 95-3912,95-3912
• Citation: 103 F.3d 1293
• Parties: Jimmy Ray PITSONBARGER, Petitioner-Appellant, v. Richard GRAMLEY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1293

103 F.3d 1293

Jimmy Ray PITSONBARGER, Petitioner-Appellant, v. Richard GRAMLEY, Respondent-Appellee.

No. 95-3912.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 5, 1996.

Decided Dec. 19, 1996.

Order Denying Rehearing Feb. 20, 1997.

Stephen E. Eberhardt (argued), Marshall J. Hartman, Capital Resource Center, Chicago, IL, Robert H. Farley, Jr., Naperville, IL, for Petitioner-Appellant.

Martha E. Gillis, Steven R. Splitt (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.

Before CUMMINGS, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

From August 26, 1987, to September 1, 1987, Jimmy Ray Pitsonbarger rampaged through the states of Nevada, Illinois, and Missouri, committing a series of crimes including sexual assault, attempted murder, armed robbery, and murder. The Nevada authorities were the first to prosecute. Pitsonbarger pleaded guilty in Nevada to charges of sexual assault, attempted murder, armed robbery, and several lesser offenses, for which he was given four life sentences without possibility of parole. Some time after he began serving his Nevada sentence, he was transferred at his own request to Illinois for disposition of the charges immediately before us, concerning the murders of Claude and Alta Brown. After a bench trial in the Circuit Court of Peoria County, he was convicted of two counts of murder and two counts of felony murder, and a jury sentenced him to death. Last, he was sent to Missouri, where he pleaded guilty to murder there in exchange for not being subject to a second sentence of death.

The interrelationship among these three proceedings provides the basis for one of Pitsonbarger's principal arguments in his federal habeas petition: that the Interstate Agreement on Detainers requires Illinois to return him to Nevada to "finish" serving his four life sentences there before Illinois may lawfully carry out its own sentence of death. In addition, Pitsonbarger claims that his trial counsel was ineffective for failing to inform the court that he was taking the psychotropic drug Librium at the time of trial and sentencing, as well as in several other respects, and he raises a number of points relating to his trial and appeal in the Illinois courts. We agree with the district court that several of these claims are procedurally barred, and that the remainder are without merit under the standards now governing the issuance of writs of habeas corpus. See the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254); Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996).

I.

The Illinois Supreme Court affirmed both the judgment of conviction and the death sentence on direct appeal in People v. Pitsonbarger, 142 Ill.2d 353, 154 Ill.Dec. 562, 568 N.E.2d 783 (1990), cert. denied, 502 U.S. 871, 112 S.Ct. 204, 116 L.Ed.2d 163 (1991). Pitsonbarger then filed a petition for post-conviction relief in the Circuit Court for the Tenth Judicial Circuit of Illinois, Peoria County, on April 3, 1992, which promptly dismissed the petition as "frivolous and patently without merit." Pitsonbarger attempted to appeal that ruling to the Illinois Supreme Court, but the court dismissed the appeal for want of prosecution due to his failure to file a brief. (Pitsonbarger had filed a motion to extend the time for filing his brief, but his motion was denied, and the court rejected his tender of the brief after the deadline had passed.) Last came the present petition for federal habeas corpus relief under 28 U.S.C. § 2254, which he filed with the district court on March 16, 1995. The habeas petition raised thirty-five claims of error, which the court grouped into eleven headings, along with a twelfth discussing a number of claims that were procedurally defaulted. Pitsonbarger's appeal to this Court includes the same eleven claims.

In considering these claims, we bear in mind that the writ may issue with respect to issues decided on the merits in the state courts only if the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," id. § 2254(d)(2). Using these standards, our review of the legal determinations of the state courts continues to be de novo. In a sense, our review of mixed questions of law and fact is also de novo, see Ornelas v. United States, [--- U.S. ----, ---- - ----] 116 S.Ct. 1657, 1661-62 (1996) and Thompson v. Keohane, [--- U.S. ----, ---- - ----] 116 S.Ct. 457, 464-65 (1995), but the question we must answer is the more subtle one of whether the state court "unreasonably" applied clearly established federal law as the Supreme Court has determined it. As was the case prior to the AEDPA, factual determinations made by the state courts are presumed to be correct; this presumption may now be rebutted only by clear and convincing evidence. Id. § 2254(e)(1).

II.

A. Effectiveness of Assistance of Counsel

At oral argument before this Court, Pitsonbarger's attorney gave greatest emphasis to his claim that Pitsonbarger had been deprived of the effective assistance of trial counsel--a claim he has been stymied from presenting effectively before the state courts because of additional procedural mix-ups that have plagued him throughout his journey through the judicial process. This claim, among others, is presently pending before the Circuit Court of Peoria County in a second petition for post-conviction relief filed under 725 ILCS 5/122-1. This Court initially stayed its consideration of Pitsonbarger's appeal when, at oral argument, his attorney renewed a motion for a stay pending resolution Pitsonbarger alleges that his trial counsel was ineffective in ten different ways, but the key point he presses on appeal is counsel's failure to inform Dr. Mortimer Beck (the psychiatrist who examined him to see if he was mentally fit to stand trial) that Pitsonbarger had been taking Librium prior to his fitness examination, as well as during trial and sentencing. Librium is a psychotropic medication that serves as a sedative-tranquilizer, and is most commonly used to reduce anxiety and tension. Pitsonbarger alleges that the drug caused him to appear disengaged from his surroundings. He also appears to assert that trial counsel was ineffective for failing to call to the trial court's attention the fact that he was using Librium for his nerves during the trial itself, and the fact that after his conviction, but before sentencing, he attempted to commit suicide. This was particularly prejudicial, he claims, in light of the fact that had he been found unfit to stand trial, and then afterwards found to be fit for trial provided that he received assistance from a medical expert or received some other accommodation, Illinois law would have precluded the death penalty. See 725 ILCS 5/104-22, 5/104-26(b).

of the state court proceeding and the state did not object. Later, however, the state voiced its objection to a federal stay and both parties informed the court that as of November 4, 1996, no relevant developments had occurred in the state court nor were foreseeable in the immediate future. We accordingly lifted our stay and have now proceeded to dispose of the merits of Pitsonbarger's § 2254 appeal. Nothing in this opinion should be construed to limit in any way the relief that the Circuit Court of Peoria County may deem appropriate as a matter of state law or to constitute findings of fact that could restrict the state court's actions. We note, in that connection, that Illinois law appears to be evolving in the area of required hearings on incompetence to stand trial, when the claim is based on a defendant's use of psychotropic drugs at or near the time of trial or sentencing. See People v. Brandon, 162 Ill.2d 450, 205 Ill.Dec. 421, 643 N.E.2d 712 (1994); People v. Nitz, 173 Ill.2d 151, 218 Ill.Dec. 950, 670 N.E.2d 672 (1996); People v. Birdsall, 172 Ill.2d 464, 219 Ill.Dec. 22, 670 N.E.2d 700 (1996); 725 ILCS 5/104-21(a). Notwithstanding those developments, the duty of this Court is to review Pitsonbarger's claims in light of the factual findings in the state court proceedings already on the record, the legal requirements of exhaustion and proper presentment, and the substantive legal conclusions that flow from the record.

After reviewing the record, the district court concluded that none of these claims was presented either in his direct appeal to the Illinois Supreme Court or in his petition for post-conviction relief to the Circuit Court of Peoria County (including the appeals from the denial of state post-conviction relief). These omissions meant that the affected claims were procedurally defaulted unless he could show cause and prejudice for his default, or that a miscarriage of justice would result from a failure to hear the claims. The district court rejected Pitsonbarger's effort to show cause for his default by arguing ineffectiveness of appellate counsel and post-conviction counsel, noting that the claim about appellate counsel could have been raised in the state post-conviction hearing, and that there is no constitutional right to effectiveness of assistance of counsel in post-conviction hearings. See Cawley v. DeTella, 71 F.3d 691, 695 (7th Cir.1995); Coleman v. Thompson, 501 U.S. 722, 756-57, 111 S.Ct. 2546, 2568-69, 115 L.Ed.2d 640 (1991). See also AEDPA, 28 U.S.C. § 2254(b)(1).

We agree that the rules of procedural default prevent us from reaching these claims, troubling though they are. Under § 2254(e)(2), the federal court may not grant an evidentiary hearing on claims that a habeas petitioner could have developed in ...