Rogers-Bey v. Lane, ROGERS-BE

• Decision Date: 23 February 1990
• Docket Number: ROGERS-BE,P,No. 89-1772,89-1772
• Citation: 896 F.2d 279
• Parties: Ronaldetitioner-Appellant, v. Michael P. LANE, et al., Respondent-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 279

896 F.2d 279

Ronald ROGERS-BEY, Petitioner-Appellant, v. Michael P. LANE, et al., Respondent-Appellees.

No. 89-1772.

United States Court of Appeals Seventh Circuit.

Argued Dec. 11, 1989.

Decided Feb. 22, 1990.

As Amended Feb. 23, 1990.

Ronald Rogers-Bey, Pontiac, Ill., pro se.

Prof. Allen E. Shoenberger, Vivian Hessel, argued, Legal Assistance Found. of Chicago, Chicago, Ill., for petitioner-appellant.

Nathan P. Maddox, Asst. Atty. Gen., argued, Crim. Appeals Div., Springfield, Ill., for respondent-appellee Michael P. Lane.

Douglas K. Smith, Asst. Atty. Gen., Crim. Appeals Div., Springfield, Ill., for respondent-appellee Atty. Gen. of the State of Illinois.

Before BAUER, Chief Judge, and FLAUM and MANION, Circuit Judges.

FLAUM, Circuit Judge.

Ronald Rogers-Bey ("Rogers") petitions this Court by writ of habeas corpus alleging that he was denied a fair trial in violation of the due process clause and was denied effective assistance of counsel in violation of the sixth amendment. To support his claims, he alleges that the admission of hearsay evidence, which he argues was critical to the jury's guilty verdict, denied him a fair trial. In addition, he maintains that his counsel improperly prevented him from testifying on his own behalf, thus denying him effective assistance of counsel and the right to testify. The district court, via a magistrate, denied the writ, holding that Rogers' claim regarding the hearsay evidence was procedurally barred and his ineffective assistance claim did not raise to the level of a sixth amendment violation. While we find that the fair trial claim was not procedurally foreclosed, we hold that there was no constitutional violation. We also find no sixth amendment right to counsel violation. Accordingly, we affirm.

Rogers was convicted by a jury for murder and sentenced to thirty years imprisonment. A previous trial had resulted in a hung jury. Hearsay evidence consisting of an out-of-court statement by Harvey Brooks, a witness to the crime, was admitted in the second trial but not used in the first. No contemporaneous objection, however, was made to the admission of the hearsay evidence.

On appeal, Rogers argued that the admission of the hearsay denied him a fair trial. The Illinois appellate court held that the objection had been waived, but also considered, as is required under Illinois law, whether the admission of the statement was plain error. People v. Rogers, 133 Ill.App.3d 1164, 99 Ill.Dec. 677, 496 N.E.2d 23 (5th Dist.1984). Finding that the probability of conviction was substantial without the hearsay evidence, the appellate court found no plain error and affirmed the conviction.

Having exhausted his direct appeals, Rogers filed a post-conviction petition with the trial court alleging that his trial counsel had rendered ineffective assistance in advising him not to testify. He claimed that his counsel gave him unreasonable advice not to testify because the advice was based on the erroneous legal belief that certain prior convictions could be admitted to impeach him. He maintained he decided not to testify based on this advice and that the failure to testify was prejudicial. The petition also alleged that his appellate attorney's representation was ineffective because he failed to raise the question of the trial counsel's ineffective representation on direct appeal. The trial court denied relief on both claims and Rogers appealed.

On appeal of the post-conviction petition, Rogers challenged the trial court's denial of his claims and also asserted that the post-conviction attorney had also rendered ineffective assistance. (This made three ineffective assistance claims being presented to the court: that of the trial counsel, the direct-appellate counsel, and the post-conviction counsel.) The post-conviction appellate court held that none of Rogers' counsel had rendered ineffective assistance and even if they had, that it was harmless beyond a reasonable doubt. People v. Rogers, 147 Ill.App.3d 1, 100 Ill.Dec. 678, 497 N.E.2d 856 (5th Dist.1986). The court held that the decision to advise Rogers not to testify was simply a strategic choice made by trial counsel and in addition, that even if the trial counsel's performance was not reasonable, any errors were harmless.

Rogers then filed a petition for habeas corpus in federal district court. He raised the now familiar claims that the admission of the hearsay evidence denied him a fair trial and that he was denied effective assistance of counsel. In addition he claimed that improper use of peremptory challenges to exclude blacks from the jury violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). A magistrate held that the hearsay claim was procedurally barred by the Illinois contemporaneous objection rule. He considered the merits of the ineffective assistance claim but held that the decision to advise Rogers not to testify was a strategic choice and therefore did not render counsel's performance below the standard of reasonableness and even if it did, that there was no prejudice. Finally, with respect to the improper use of peremptory challenges, the magistrate held that Rogers' case was final and not on direct review at the time of Batson, and therefore not subject to its mandate. See Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).

With this background, the case was appealed to this Court. Rogers does not object to the magistrate's decision regarding peremptory challenges. Rogers does, however, object to the magistrate's opinion on the remaining issues, namely that the admission of the hearsay evidence was procedurally barred and that there was no ineffective assistance of counsel in violation of the sixth amendment.

The magistrate based his finding on our decision in Harris v. Reed, 822 F.2d 684 (7th Cir.1987) (interpreting Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)). Two days prior to the magistrate's decision, however, our decision in Harris was reversed by the Supreme Court. Harris v. Reed, --- U.S. ----, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). The Supreme Court held in Harris that the "plain statement" rule of Michigan v. Long, 463 U.S. 1032, 1042 and n. 7, 103 S.Ct. 3469, 3477, and n. 7, 77 L.Ed.2d 1201 applies to federal habeas cases as well as to cases on direct review. Under this standard, "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." 109 S.Ct. at 1043 (citations omitted) (emphasis added).

Applying Harris to the case at bar, we conclude that the state court did not clearly and expressly rely on a state procedural bar. The Illinois court relied on two different grounds to deny Rogers' claim. The court first noted that Rogers' failure to object to the testimony during trial waived the issue on appeal. Along this vein, the court also found that the failure to raise the objection to the evidence in post-trial motions, was "an omission which also constituted a waiver of the error on appellate review." The court, however, did not stop there, as it went on to consider the merits of Rogers' constitutional claim, namely that the admission of the evidence was plain error, i.e., an error of such magnitude as to deny the accused a fair and impartial trial. See People v. Carlson, 79 Ill.2d 564, 576-77, 38 Ill.Dec. 809, 814, 404 N.E.2d 233, 238 (1980). Under Illinois law, the contemporaneous objection rule does not prevent Illinois courts from also considering the effect of the allegedly damaging testimony on the likelihood of conviction. The court, considering this claim, found that "the record compels [the conclusion] that even without the allegedly damaging testimony, the probability of conviction was substantial.... [T]he statement's admission, if error, was harmless beyond a reasonable doubt."

By reaching the plain error claim after having found waiver, the court necessarily relied on two different grounds for its decision. The court gave no indication whether these grounds were independent and gave no limiting language regarding its reasons for reaching both grounds. If these two grounds were merely alternative, independent grounds, consideration of both would not prevent procedural foreclosure on habeas. Under Harris, it is clear that where the state expressly and clearly relies on federal law only as an alternative to adequate and independent state grounds, federal courts must honor the state holding. 109 S.Ct. at 1044 n. 10. "Sykes curtails reconsideration of the federal issue on federal habeas as long as the state court explicitly invokes a state procedural bar rule as a separate basis for a decision. In this way, a state court may reach a federal question without sacrificing its interests in finality, federalism, and comity." Id. (emphasis added).

In Phillips v. Lane, 787 F.2d 208, 211-15 (7th Cir.1986), this Court considered the intent of an Illinois appellate court in reaching a plain error analysis after finding waiver. We declined to read the literal language of the opinion, and instead looked at substantive Illinois law and the underlying, inferred intent of the court. On this basis, we held that Illinois courts, under Illinois law, need not reach the merits of a claim under the plain error doctrine after finding procedural default, and therefore, the procedural waiver is an adequate state ground for decision. It is tempting to conclude from this that Rogers' claim is foreclosed.

Such a conclusion, however, would not be appropriate. The impact of Harris on Sykes is that the state's reliance on the procedural foreclosure must be stated, and it must be stated in plain language. To address concerns about a flood of improper prisoner petitions, the Court in Harris gave an example of such language: "relief is...