Sulie v. Duckworth

• Decision Date: 31 January 1989
• Docket Number: No. 87-1321,87-1321
• Citation: 864 F.2d 1348
• Parties: Eugene Keith SULIE, Petitioner-Appellant, v. Jack DUCKWORTH and Indiana Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1348

864 F.2d 1348

Eugene Keith SULIE, Petitioner-Appellant, v. Jack DUCKWORTH and Indiana Attorney General, Respondents-Appellees.

No. 87-1321.

United States Court of Appeals Seventh Circuit.

Argued Dec. 8, 1987.

Decided Dec. 22, 1988.

Rehearing and Rehearing En Banc Denied Jan. 31, 1989.

Robert S. Markin, Jenner & Block, Chicago, Ill., for petitioner-appellant.

David A. Nowak, Asst. Atty. Gen., David L. Steiner, Indianapolis, Ind., for respondents-appellees.

Before BAUER, Chief Judge, and COFFEY, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Petitioner, Eugene Sulie, asks us to review the district court's order dismissing his petition for a writ of habeas corpus. The district court dismissed Sulie's petition after finding that the issues raised in the petition were identical to those raised in a prior petition already considered and rejected by both the district court and this court. Concluding that Sulie had not supplemented his second petition for habeas relief with a colorable claim of factual innocence, as required under Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), the district court dismissed Sulie's petition.

We find that the decision in Kuhlmann does not bar Sulie's successive petition for habeas relief. But, because we also find that the alleged evidentiary error, about which Sulie complains, is harmless beyond a reasonable doubt, his petition for habeas relief must be denied on its merits.

I.

In December 1976, an Indiana state court convicted Eugene Sulie of first degree murder. At trial, Sulie presented an insanity defense. Under Indiana law then in effect, the state had the burden of proving Sulie sane beyond a reasonable doubt. As part of its evidence, the state presented the testimony of two doctors. The doctors testified that despite Sulie's previous eighteen-year incarceration in a mental institution and his recurring symptoms of paranoid schizophrenia, Sulie was sane at the time of the murder. In an effort to prove that Sulie had the ability to understand and reason, the state also elicited testimony from the arresting officer that Sulie had asked for an attorney after being given his Miranda warnings. Only one question and answer relating to this area of inquiry were made:

PROSECUTOR: Did he ask to contact an attorney?

OFFICER: Yes.

It is this single one-word answer, to which no further reference was made during trial, that ultimately led to Sulie's successive petitions for a writ of habeas corpus and this appeal.

Following his conviction and life sentence, Sulie appealed to the Indiana Supreme Court arguing that the introduction into evidence and use of his post-Miranda request for an attorney violated his constitutional rights. In Sulie v. State, 269 Ind. 204, 379 N.E.2d 455 (1978), cert. denied, 440 U.S. 948, 99 S.Ct. 1428, 59 L.Ed.2d 637 (1979), a divided court affirmed Sulie's conviction. The majority ruled:

The defendant now argues that the request for an attorney is similar to silence in response to the Miranda warnings and that this burdened his constitutional rights. While it is true that silence in response to the Miranda warnings may not be shown and such silence may not be used to impeach the defendant's testimony, United States v. Hale (1975) 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99, the defendant has cited no authority for his novel proposition that a request for an attorney is similar to silence.

379 N.E.2d at 456 (emphasis added).

The dissent however, was less convinced that Sulie had no authority for the proposition that a post-Miranda request for an attorney was equivalent to post-Miranda silence. Relying on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the dissent reasoned that the holding in Doyle, which prohibits the prosecutor from using a defendant's post-Miranda-warnings silence to prove guilt, applies with "equal, if not greater, force to a suspect's request for an attorney. Revelation of such a request to the jury is a bald invitation to infer that the suspect is acknowledging his guilt." 379 N.E.2d at 458. The dissent concluded that the admission of the officer's testimony constituted error. ¹

Following the denial of his petition for a writ of certiorari filed with the United States Supreme Court, Sulie filed his first petition for a writ of habeas corpus in the United States district court. He argued only that his post-Miranda request for an attorney should not have been admitted and that the admission of this testimony constituted reversible error.

Like the Indiana Supreme Court, the district court found that Sulie's request for an attorney was relevant to the issue of his sanity. Moreover, the court found that unlike post-Miranda silence, a post-Miranda request for an attorney was not susceptible to an interpretation of an admission of guilt. The district court therefore concluded that Doyle v. Ohio did not bar the introduction and use of the disputed evidence. Alternatively, the district court ruled that the admission of the arresting officer's testimony was harmless error since the evidence of Sulie's guilt and sanity was so overwhelming that the introduction of the questionable evidence was harmless beyond a reasonable doubt.

Sulie appealed the district court's order denying his first petition for habeas relief. In 1982, this court affirmed the district court's finding that Doyle did not prohibit the introduction of a post-Miranda request for an attorney as proof of Sulie's sanity. However, we noted:

The question whether it is a violation of a criminal defendant's constitutional rights to testify that he asked to speak to a lawyer ... was addressed in Jacks v. Duckworth, 651 F.2d 480, 482-83 (7th Cir.1981), and this court held it was not. But the court's opinion lays heavy emphasis on the harmlessness of the alleged error in the circumstances of that case, and we are less certain that if there was an error here it was harmless.

Sulie v. Duckworth, 689 F.2d 128, 129 (7th Cir.1982), cert. denied, 460 U.S. 1043, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983) (emphasis added).

Judge Cudahy dissented, and relying on Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), stated that "just as the Miranda warnings implicitly assure an accused that exercise of the announced right to silence will carry no penalty, so too must they implicitly give assurance that a defendant's exercise of the announced right to counsel will carry no penalty." Sulie, 689 F.2d at 132. After this court's decision, Sulie again petitioned the Supreme Court for a writ of certiorari, which was again denied.

Three years later, in Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986), the Supreme Court extended its ruling in Doyle to the situation where a defendant's post-Miranda silence is used to overcome his insanity defense. The Court said:

The point of the Doyle holding is that it is fundamentally unfair to promise an arrested person that his silence will not be used against him and thereafter to breach that promise by using the silence to impeach his trial testimony. It is equally unfair to breach that promise by using silence to overcome a defendant's plea of insanity.

474 U.S. at 292, 106 S.Ct. at 639. The Court also said: "[W]e point out that silence does not mean only muteness; it includes the statement of a desire to remain silent until an attorney has been consulted." 474 U.S. at 295 n. 13, 106 S.Ct. at 641 n. 13.

Thus, Greenfield addressed the very issue raised in Sulie's first petition for a writ of habeas corpus. Indeed, the Supreme Court implied that it granted certiorari in Greenfield because the Eleventh Circuit Court of Appeals' opinion, which granted Greenfield's petition for habeas relief, directly conflicted with this court's earlier decision in this case. 474 U.S. at 289 n. 4, 106 S.Ct. at 637 n. 4.

Not unexpectedly, shortly after Greenfield was decided, Sulie filed the present petition for a writ of habeas corpus, raising the exact same claim raised in his first petition--namely that his post-Miranda request for an attorney should not have been used against him and that such use constituted reversible error.

Relying on another recent Supreme Court decision, Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), the district court dismissed Sulie's second petition, finding Sulie had failed to support his constitutional claim with a colorable showing of factual innocence, a prerequisite to filing successive and identical petitions for habeas corpus.

This appeal followed.

II.

Initially, we must decide whether the requirements for successive petitions for habeas relief have been met. We must then determine whether the Supreme Court's decision in Greenfield should be retroactively applied to Sulie's case.

In Kuhlmann, the Supreme Court reviewed the evolution of the "Great Writ." The Court noted that Congress evinced a strong interest in according a judgment, denying a petition for a writ of habeas corpus on its merits, a binding effect. Thus, where a petitioner filed successive petitions for habeas corpus, which contained identical claims, the courts were required to balance the "interest of the prisoner in relitigating constitutional claims held meritless on a prior petition" with the "countervailing interests served by according finality to the prior judgment." 477 U.S. at 452, 106 S.Ct. at 2626. Only in rare instances where the "ends of justice" would be served by doing so was reconsideration of a successive petition for habeas corpus warranted.

When the "ends of justice" would be served by reconsidering previously decided issues was originally addressed in Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). ² Although the Court declined to define precisely the term "ends of justice" in Sanders, it did provide two examples of when a hearing on an identical, successive habeas petition might be appropriate.

If factual...