Robertson v. Hanks

• Decision Date: 30 March 1998
• Docket Number: No. 96-1441.,96-1441.
• Citation: 140 F.3d 707
• Parties: William D. ROBERTSON, Petitioner-Appellant, v. Craig HANKS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

140 F.3d 707

William D. ROBERTSON, Petitioner-Appellant, v. Craig HANKS, Respondent-Appellee.

No. 96-1441.

United States Court of Appeals, Seventh Circuit.

Argued January 28, 1998.

Decided March 30, 1998.

William D. Robertson, Greencastle, IN, Petitioner-Appellant pro se.

Robert L. Collins (argued), Jeffrey A. Modisett, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Allen E. Shoenberger, pro se, Donald O'Brien (argued), Loyola University School of Law, Chicago, IL, for Amicus Curiae.

Before ESCHBACH, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

William D. Robertson, an Indiana prisoner serving concurrent prison terms totaling 35 years for three counts of "dealing cocaine," filed a pro se petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254.¹ On appeal, Robertson raised the following issues in his original brief: (1) whether the state trial court violated his due process rights when it refused to instruct the jury on a lesser included offense (possession of cocaine); (2) whether improper voir dire violated due process; (3) whether the state trial court should have held an in camera hearing regarding the suppression of an informant's address; (4) whether trial counsel was ineffective; (5) whether the state trial court exceeded its jurisdiction by amending the charging Information; (6) whether it was error to allow the prosecutor to elicit threat-related testimony from a confidential informant at trial; (7) whether appellate counsel was ineffective.²

I. Introduction

Robertson was convicted by a jury of three counts of dealing cocaine, after which he was sentenced to three consecutive terms of 35 years, 35 years, and 10 years in prison. The conviction was upheld on direct appeal, Robertson v. State, No. 22A01-9010CR-398, 577 N.E.2d 625 (Ind.Ct.App.1991) (Robertson I), and transfer was denied by the Indiana Supreme Court, 31 Mass.App.Ct. 336, 577 N.E.2d 629 (1991). A post-conviction petition was denied, and that denial was affirmed by the Indiana Court of Appeals, Robertson v. State, 650 N.E.2d 1177 (Ind.Ct.App.1995) (Robertson II), except as to the consecutive sentences, which were modified to concurrent sentences. Transfer to the Indiana Supreme Court was again denied. The facts as determined by the state appellate court are:

The police informant who arranged the transactions with [Robertson] on behalf of the undercover officer testified that on the three occasions charged she observed [Robertson] deliver to the police officer what appeared to her to be cocaine and witnessed the officer pay [Robertson] cash for the contraband. The police officer who actually purchased the cocaine from [Robertson] on each of the charged occasions testified concerning the details of the transactions in a manner consistent with that of the informant. Of course, the state established a chain of custody for the exhibits containing the contraband and offered evidence that the substances delivered were in part cocaine.

Robertson II, 650 N.E.2d at 1184-85.

II. Discussion

A. Jury Instruction on Lesser Included Offense

Robertson argues that the trial court erred in not instructing the jury on the lesser included offense of possession of cocaine. The state responds that Robertson has procedurally defaulted, thus precluding habeas corpus review of this issue. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640 (1991); Wainwright v. Sykes, 433 U.S. 72, 81-82, 97 S.Ct. 2497, 2503-04, 53 L.Ed.2d 594 (1977). The district court found that the issue had been procedurally defaulted, that there was no showing of cause or prejudice for the default, and that there was no showing of a fundamental miscarriage of justice.

However, no procedural default occurs if the state appellate court's alternative finding constituted a finding on the merits. See Harris v. Reed, 489 U.S. 255, 257-59, 266, 109 S.Ct. 1038, 1040-41, 1045, 103 L.Ed.2d 308 (1989); Coleman v. Thompson, 501 U.S. at 734-35, 111 S.Ct. at 2556-57. The state appellate court in this case reached the merits. See Neal v. Gramley, 99 F.3d 841, 843-44 (7th Cir.1996); Willis v. Aiken, 8 F.3d 556, 563-64 (7th Cir.1993). Cf. Rogers-Bey v. Lane, 896 F.2d 279, 281 (7th Cir.1990). As the state appellate court stated in the post-conviction review:

The State contends that Robertson has waived many of the issues which he now presents to this court because he failed to raise them in his direct appeal. We agree with the State that postconviction proceedings are not a substitute for a direct appeal and issues which could have been raised on direct appeal may not be raised in a post-conviction proceeding. Generally, allegations of error available but not asserted on direct appeal are waived for purposes of post-conviction relief. However, at no point during the postconviction proceedings did the State raise the defense of waiver, neither did the post-conviction court find waiver, rather, the State responded to and the court based its findings upon the merits of Robertson's argument which we must do as well.

Robertson II, 650 N.E.2d at 1181.

The Indiana Court of Appeals decided the issue on a non-constitutional basis, finding that there was no need to instruct on a lesser-included offense because the state can draft its charging document to foreclose the possibility of a conviction on a lesser offense. Robertson II, 650 N.E.2d at 1182. The court relied on Jones v. State, 438 N.E.2d 972, 975 (Ind.1982).³ Robertson correctly points out that Indiana subsequently changed its law in Wright v. State, 658 N.E.2d 563, 567 (Ind. 1995), a case decided while the federal habeas corpus petition was pending before the district court.⁴ The court in Wright held that if the evidence warrants it, and the defendant requests it, a jury "instruction on reckless homicide should always be given in a case in which murder has been charged." Thus, it appears that at least under state law, the state trial court did indeed err in refusing to instruct the jury on a lesser included offense. Moreover, as the state appellate court held, the evidence in this case permits an instruction on possession of cocaine. Robertson II, 650 N.E.2d at 1182 ("the evidence in this case may have supported an instruction on a lesser offense"). See generally Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 2052-53, 72 L.Ed.2d 367 (1982) ("due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction").

In Beck v. Alabama, 447 U.S. 625, 627, 100 S.Ct. 2382, 2384, 65 L.Ed.2d 392 (1980), a capital case, the Supreme Court held that failure to charge lesser included noncapital offenses, where the evidence warrants such a charge, violates the Eighth Amendment and the Due Process Clause. In noncapital cases, however, there is some disagreement among the circuits as to how to handle the issue. Following Beck, this court held that a due process violation occurs only when the error is so fundamental a defect as to cause "a fundamental miscarriage of justice." Nichols v. Gagnon, 710 F.2d 1267, 1269 (7th Cir.1983), quoting United States ex rel. Peery v. Sielaff, 615 F.2d 402, 404 (7th Cir.1979). We stated in Nichols that "[a]lthough the court may some day decide to extend the rule of Beck to noncapital cases, we are not inclined to anticipate its doing so." Nichols, 710 F.2d at 1271. In addition, we explained: "[E]ven if Beck is some day extended to noncapital cases, there will still be the question what the standard of collateral review is." Nichols, 710 F.2d at 1272. However, the court was not inclined to make a rule which would "enmesh the federal judiciary in almost every detail of state criminal procedure and every trial ruling, and we would regularly have to review failures to instruct on lesser included offenses under state law as well as decide other issues unrelated to a specific federal constitutional safeguard. We shall decline this task until directed to take it up by our judicial superiors.... [W]e shall continue to review failures to instruct under the standard of Peery — fundamental miscarriage of justice." Nichols, 710 F.2d at 1272.

Like our circuit, the First, Sixth, and Eighth Circuits use the "fundamental miscarriage of justice" test. Tata v. Carver, 917 F.2d 670, 671 (1st Cir.1990); Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir.1990) (en banc); DeBerry v. Wolff, 513 F.2d 1336, 1338 (8th Cir.1975). In contrast, the Fifth, Ninth, Tenth and Eleventh Circuits have held that failure to instruct on the lesser included offense does not present a federal constitutional question cognizable under habeas corpus law. Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir.1988); Chavez v. Kerby, 848 F.2d 1101, 1103 (10th Cir.1988); Perry v. Smith, 810 F.2d 1078, 1080 (11th Cir.1987); Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.1984). The Second and Ninth Circuits have declined to adopt a rule "interpreting the Constitution to require the submission of instructions on lesser-included offenses in non-capital cases," since such a rule "would involve the announcement of a new rule," and the holding under "Teague [v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)] precludes our consideration of the issue." Jones v. Hoffman, 86 F.3d 46, 48 (2d Cir.1996). Accord Turner v. Marshall, 63 F.3d 807, 818-19 (9th Cir.1995) (to find that due process required a lesser included offense instruction on robbery "would require application of a new rule of law in a habeas corpus case," and thus the argument fails under Teague). Only the Third Circuit has extended the Beck rule to noncapital cases. Vujosevic v. Rafferty, 844 F.2d 1023, 1027 (3d Cir.1988). Cf. Geschwendt v. Ryan, 967 F.2d 877, 884-85 n. 13 (3d Cir.1992) (en banc).⁵

We decline the invitation to disturb our decision in Nichols. Thus, given our ruling on this issue in Nichols, a post-Beck case, and the fact that the Supreme Court has not extended ...