Richardson v. Gramley, 90-1527

Decision Date01 July 1993
Docket NumberNo. 90-1527,90-1527
PartiesCharles RICHARDSON, Petitioner-Appellant, v. Richard B. GRAMLEY, Warden of Dixon Correctional Center, et al., Respondents-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Page 463

998 F.2d 463
Charles RICHARDSON, Petitioner-Appellant,
v.
Richard B. GRAMLEY, Warden of Dixon Correctional Center, et
al., Respondents-Appellees.
No. 90-1527.
United States Court of Appeals,
Seventh Circuit.
Argued Dec. 17, 1992.
Decided July 1, 1993.

Page 464

Donna Hickstein-Foley (argued) Athas, Foley & Kowal, Chicago, IL, for petitioner-appellant.

Marcia L. Friedl, Asst. Atty. Gen., Michael A. Hurst (argued) Office of the Attorney General, Criminal Appeals Div., William P. Pistorius, Asst. Atty. Gen., Office of the State's Attorney of Cook County, Federal Litigation Div., Chicago, IL, for Richard Gramley.

Michael A. Hurst, Office of the Attorney General, Criminal Appeals Div., William P. Pistorius, Asst. Atty. Gen., Office of the State's Attorney of Cook County, Federal Litigation Div., Chicago, IL, for Neil F. Hartigan.

Before POSNER, FLAUM, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

A state prisoner named Richardson appeals from the denial of his application for habeas corpus, arguing that the prosecutor used a peremptory challenge to strike a juror by reason of the juror's race in violation of the constitutional principle declared in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Richardson can use Batson to attack his conviction only if the conviction was not yet "final" when Batson was decided. Allen v. Hardy, 478 U.S. 255, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). A criminal judgment is final for this purpose when the defendant has exhausted his state appellate remedies and either the U.S. Supreme Court has denied his petition for certiorari or the time for filing the petition has expired. Id. at 258 n. 1, 106 S.Ct. at 2879 n. 1; Teague v. Lane, 820 F.2d 832, 836 (7th Cir.1987) (en banc), aff'd, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989); Byrd v. Armontrout, 880 F.2d 1, 6-7 (8th Cir.1989).

Richardson was convicted of murder and robbery in an Illinois state court in 1984 and sentenced to sixty years in prison. He appealed, raising the Batson issue albeit in pre-Batson form--Batson not yet having been decided--but adequately to preserve the issue. Trevino v. Texas, --- U.S. ----, ----, 112 S.Ct. 1547, 1550, 118 L.Ed.2d 193 (1992). On December 30, 1985, the Illinois Appellate Court rendered a decision in which it "affirmed" the "judgment" of the trial court but "remanded for resentencing." People v. Richardson, 139 Ill.App.3d 598, 603, 93 Ill.Dec. 891, 894, 487 N.E.2d 716, 719 (1985). The reason for the remand was as follows. After Richardson had been convicted and sentenced, two other men had been convicted as participants in the same offense and the evidence at the trial of one of them, Stewart, indicated that Richardson had been an accessory rather than one of the principals, as the judge who sentenced Richardson had thought. The appellate court pointed out that "the sentencing judge could not possibly have known of the evidence which would later be adduced at Stewart's trial when he sentenced defendant, so it cannot be said that he erred in sentencing defendant." Id. Nevertheless, to avoid injustice as well as to economize on judicial resources the court remanded the case so that the judge could resentence Richardson in light of the evidence that had surfaced in the subsequent trial. Richardson did not seek leave to appeal to the Supreme Court of Illinois or file a petition for certiorari in the U.S. Supreme Court.

On May 22, 1986, the judge resentenced Richardson to thirty years, thus cutting the original sentence in half. The Illinois Appellate Court affirmed the new sentence on November 23, 1987, and the Supreme Court of Illinois denied leave to appeal. Batson had been decided by the U.S. Supreme Court

Page 465

on April 30, 1986. That was after the Illinois Appellate Court's decision affirming the judgment of conviction had been rendered and after the time for Richardson to seek leave to appeal to the Supreme Court of Illinois or to file a petition for certiorari in the U.S. Supreme Court had expired, but before Richardson was resentenced and almost two years before the judgment imposing the new sentence became final.

After the state supreme court denied leave to appeal in the second round, Richardson mounted a collateral attack in the state court system on his conviction. He was denied relief, on the ground that his conviction had become final before Batson was decided. He then brought this federal habeas corpus action.

A judgment is not final if the appellate court has remanded the case to the lower court for further proceedings, unless the remand is for a purely "ministerial" purpose, involving no discretion, such as recomputing prejudgment interest according to a set formula. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 233-34, 78 S.Ct. 674, 678, 2 L.Ed.2d 721 (1958); Herzog Contracting Corp. v. McGowen Corp., 976 F.2d 1062, 1064 (7th Cir.1992); Parks v. Pavkovic, 753 F.2d 1397, 1401-02 (7th Cir.1985); In re Riggsby, 745 F.2d 1153, 1156 (7th Cir.1984); Freeman United Coal Mining Co. v. Director, 721 F.2d 629, 631 (7th Cir.1983); Morgan v. United States, 968 F.2d 200, 204-05 (2d Cir.1992); In re Gould & Eberhardt Gear Machinery Corp., 852 F.2d 26, 29 (1st Cir.1988). It is not final, therefore, if it merely determines liability, leaving the determination of relief to subsequent proceedings. Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 744, 96 S.Ct. 1202, 1206, 47 L.Ed.2d 435 (1976); In re Fox, 762 F.2d 54, 55 (7th Cir.1985); In re Goldblatt Bros., 758 F.2d 1248, 1250 (7th Cir.1985). So, in a criminal case, a judgment of conviction is not final, because the "relief" sought by the prosecution is not the conviction as such but the sentence. Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 165, 82 L.Ed. 204 (1937); Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1053, 79 L.Ed.2d 288 (1984); United States v. Patel, 835 F.2d 708, 709 (7th Cir.1987).

This analysis might seem to establish beyond the possibility of doubt that the Illinois Appellate Court's decision of December 30, 1985, while purporting to affirm the trial court's judgment, was not final, because the case was remanded for resentencing in the sentencing judge's discretion rather than pursuant to some mechanically applicable rule. But there are two reasons to doubt this conclusion. The first is that the decision did not purport to vacate the sentence. Compare United States v. Moree, 928 F.2d 654, 656 (5th Cir.1991). It remanded the case so that the sentencing judge "can [if he wants] resentence defendant to a term of imprisonment appropriate in light of the subsequent events." People v. Richardson, supra, 139 Ill.App.3d at 603, 93 Ill.Dec. at 894, 487 N.E.2d at 719 (emphasis added). The opinion ends with the words "Affirmed and Remanded"--as if the contemplated resentencing were a collateral proceeding, such as an action for habeas corpus, which normally follows the affirmance of the defendant's conviction. The court was worried that if the sentence "is affirmed [without a remand], it may be that defendant will be unable to obtain sentencing relief to which he may be entitled." Id. Perhaps some hitch in the state's system of postconviction remedies would have prevented Richardson from obtaining a correction of his sentence in light of the newly discovered evidence presented at Stewart's trial, so that the appellate court was in effect directing the sentencing judge to reopen the case, just as if, in a federal civil trial, Richardson had moved under Fed.R.Civ.P. 60(b) for a new trial on the basis of newly discovered evidence. The filing of such a motion would not prevent the judgment from becoming final. Rule 60 provides that "a motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation." Buggs v. Elgin, Joliet & Eastern R.R., 852 F.2d 318, 321 n. 3 (7th Cir.1988); Bernstein v. Lind-Waldock & Co., 738 F.2d 179, 182 (7th Cir.1984).

The second reason for believing that the...

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