Timberlake v. Davis

• Decision Date: 27 May 2005
• Docket Number: No. 04-2315.,04-2315.
• Parties: Norman TIMBERLAKE, Petitioner-Appellant, v. Cecil DAVIS, Superintendent, Indiana State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 819

409 F.3d 819

Norman TIMBERLAKE, Petitioner-Appellant, v. Cecil DAVIS, Superintendent, Indiana State Prison, Respondent-Appellee.

No. 04-2315.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 2005.

Decided May 27, 2005.

Brent Westerfeld (argued), Indianapolis, IN, Lorinda Meier Youngcourt, Huron, IN, for Petitioner-Appellant.

James B. Martin (argued), Steve Carter, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before EASTERBROOK, RIPPLE, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

Norman Timberlake and Tommy McElroy stopped their car and proceeded to urinate by the side of a highway. A state trooper arrived and learned that McElroy was a fugitive. While trooper Greene was taking McElroy into custody, Timberlake shot and killed Greene. A jury convicted Timberlake of murder and unanimously recommended that he be sentenced to death on the basis of a statutory aggravating factor: the victim was a police officer acting in the line of duty. Ind.Code § 35-50-2-9(b)(6). The judge imposed the recommended sentence. The Supreme Court of Indiana affirmed, 690 N.E.2d 243 (1997), and rejected a request for collateral relief, 753 N.E.2d 591 (2001). The district court denied Timberlake's petition under 28 U.S.C. § 2254 for a writ of habeas corpus.

As the case reaches us, only two questions remain in contention: whether the trial judge should have directed Timberlake to undergo a mental examination to determine his competence for trial, even though neither side asked for an examination; and whether Timberlake's lawyer furnished constitutionally inadequate assistance. With respect to each the state argues, and the district judge held, that Timberlake forfeited the contention by failing to present it to the state judiciary at the required time. We start with this subject, because the two supposed defaults have something in common: the Supreme Court of Indiana relied on state procedural rules that changed after Timberlake's direct appeal.

During the 1980s the Supreme Court of Indiana repeatedly declared that assertions of incompetence to stand trial could be raised on either direct appeal or collateral review. See, e.g., Smith v. State, 443 N.E.2d 1187, 1188 (Ind.1983); Hammer v. State, 545 N.E.2d 1, 3 (Ind.1989). More recently, however, the state's highest court has required defendants to raise on direct appeal all questions that can be resolved on the basis of the trial record. See, e.g., Rouster v. State, 705 N.E.2d 999, 1003 (Ind.1999). (There is an exception for claims of ineffective assistance, which we discuss later.) It applied this approach to Timberlake's complaint about competence, ruling that it had been forfeited because all of the events that Timberlake now says should have alerted the trial judge to the possibility of his mental shortcomings were in the trial record and thus could have been presented in direct appeal. See 753 N.E.2d at 598. Just to be safe, however, the Supreme Court of Indiana also considered and rejected this contention on the merits. Id. at 598-602.

The pattern is much the same for ineffective assistance of counsel. At one time Indiana allowed such contentions to be presented on direct appeal, collateral review, or both, at the defendant's option. Then it began to insist that any claim that could be supported by the trial record be presented on direct appeal—but this caused problems because sometimes the original record has some indicators of deficiencies but not enough to establish a constitutional flaw. Thus like the Supreme Court of the United States, see Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), the Supreme Court of Indiana eventually held that defendants always may reserve this subject for collateral review. See Woods v. State, 701 N.E.2d 1208, 1220 (Ind.1998); Ben-Yisrayl v. State, 738 N.E.2d 253, 259 (Ind.2000). But it also held that, if the defendant does elect to argue ineffective assistance on direct appeal, this is the only shot; a defendant must choose which time to make the argument and cannot do it twice. Again this parallels the federal practice. See Davis v. United States, 417 U.S. 333, 342, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Peoples v. United States, 403 F.3d 844 (7th Cir.2005); United States v. Taglia, 922 F.2d 413, 418 (7th Cir.1991). The Supreme Court of Indiana applied these rules to Timberlake's collateral attack and held that he is not entitled to reargue ineffective assistance on the record built on collateral review. 753 N.E.2d at 602-03. Once again taking the cautious route, however, the state court considered the possibility that Timberlake's lawyer on direct appeal had rendered ineffective assistance by contending that trial counsel had furnished ineffective assistance. It held that Timberlake could not show prejudice, because "there is not a reasonable probability that the jury would have found the mitigators [had any been presented] to out-weigh the very weighty aggravator." Id. at 610.

The dates of these opinions show why both findings of procedural default are problematic. Timberlake's direct appeal was decided in 1997; important procedural opinions were issued later, and defendants need not anticipate new developments. States are free to apply doctrinal changes retroactively for their own purposes, but only a rule that was established at the time of the act said to constitute the procedural default is an "independent and adequate state ground" that blocks federal collateral review. Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir.1997). Prescience is not required; a state rule that materially changed after the time of the supposed default cannot be used to show that a federal claim had been forfeited. For federal purposes, then, Rouster does not foreclose Timberlake's attempt to raise arguments about his competence to stand trial.

As for ineffective assistance: Woods is not the most important decision. Woods is Indiana's parallel to Massaro, holding that a defendant safely may postpone an ineffective-assistance argument to collateral review. For Timberlake, who elected to present an ineffective assistance claim on direct appeal, the most important development came in Sawyer v. State, 679 N.E.2d 1328 (Ind.1997), which held a defendant who does this cannot raise or elaborate the ineffective-assistance claim on collateral attack, as Timberlake attempted to do. Sawyer was issued on May 16, 1997, a little more than six months after the oral argument of Timberlake's direct appeal, but with seven months still to go before the Supreme Court of Indiana issued its decision. That left Timberlake's lawyer ample time to learn about Sawyer and withdraw the ineffective-assistance argument in order to preserve the opportunity to make it on collateral attack with a better record.

It is an interesting question whether the appellate brief, the oral argument, or the date of decision on the direct appeal is the time of the act said to constitute the procedural default. We need not decide whether a state may insist that appellate counsel monitor post-briefing or post-argument decisions, however, because in this court Indiana does not rely on (or even mention) Sawyer or its sequel Bieghler v. State, 690 N.E.2d 188 (Ind.1997) (which like Sawyer was announced before the resolution of Timberlake's direct appeal). Indiana's procedural-default argument rests entirely on Woods, which for reasons that should be clear does not answer the question—though the fact that Woods lay in the future may explain why Timberlake's appellate counsel did not react to Sawyer before the Supreme Court of Indiana issued its initial decision. It is unnecessary to speculate, given the state's decision not to rely on Sawyer. We conclude that neither the competence claim nor any aspect of the ineffective-assistance claim has been defaulted; both are open to decision on the merits under § 2254.

The argument about competence to stand trial rests on Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), and Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), which hold that the due process clause requires the trial judge to inquire sua sponte into a defendant's mental state, if events in court imply that the accused may be unable to appreciate the nature of the charges or assist his counsel in presenting a defense. Timberlake's current lawyers contend that a series of what they call "erratic and irrational" acts should have put the trial judge on the alert. Here is a recap from Timberlake's brief:

Before trial, Timberlake repeatedly expressed an irrational distrust for his attorneys, other members of the defense team, and the trial judge. At a pretrial conference he accused the Judge of refusing to approve funds for defense investigators when, in fact, the judge had approved funds. He told the judge he believed defense investigators were being paid for doing investigative work they had not performed. He insisted to the judge that the defense paralegal and law student assisting in the mitigation investigation should be fired because they also worked for one [of] his former court-appointed attorneys .... Timberlake told the judge the first attorney appointed to represent him had "denied [him] every due process right ... in the book". This paranoid belief was based solely on the attorney's former employment as a police officer.

Comments along these lines do not show either inability to comprehend the proceedings or inability to assist in the defense. They show instead a distrust of the criminal justice system—which from Timberlake's perspective may have been warranted by the considerable number of convictions on his record—plus the usual confusion about just which defense motions had been granted. Comments similar to those Timberlake made are common, sometimes because of suspiciousness and...