U.S. ex rel. Williams v. Franzen

• Decision Date: 08 November 1982
• Docket Number: No. 81-2957,81-2957
• Citation: 687 F.2d 944
• Parties: UNITED STATES of America ex rel. Otis WILLIAMS and A. D. Clark, Petitioners- Appellees, v. Gayle M. FRANZEN and Tyrone C. Fahner, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 944

687 F.2d 944

UNITED STATES of America ex rel. Otis WILLIAMS and A. D Clark, Petitioners- Appellees, v. Gayle M. FRANZEN and Tyrone C. Fahner, Respondents-Appellants.

No. 81-2957.

United States Court of Appeals Seventh Circuit.

Argued May 27, 1982.

Decided Aug. 20, 1982.

As Modified on Denial of Rehearing Nov. 8, 1982.

Terrance M. Madsen, Deputy Atty. Gen., Chicago, Ill., for respondents-appellants.

Jeffrey R. Tone, Sidley & Austin, Chicago, Ill., for petitioners-appellees.

Before CUDAHY, ESCHBACH and POSNER, Circuit Judges.

CUDAHY, Circuit Judge.

Petitioners, Otis Williams and A. D. Clark sought habeas corpus relief in federal district court from an Illinois criminal conviction, pursuant to 28 U.S.C. § 2254. The parties filed cross motions for summary judgment under Fed.R.Civ.P. 56. The district court granted the petitioners' motion on their claim of ineffective assistance of counsel ¹ and the respondents appeal. We affirm, 531 F.Supp. 292.

I.

In 1974 petitioners A. D. Clark and Otis Williams, together with Ernest J. Clark, were indicted and convicted for the burglary of a store and the theft of a large quantity of meat. One attorney was appointed to represent all three defendants and continued to represent all three defendants throughout the trial court proceedings.

At trial, the state established that on March 30, 1974, a P & E Supermarket in Kankakee County, Illinois, was burglarized, and a large quantity of meat, candy, and cigarettes was taken. Because the store's bookkeeper left the building between 1:00 and 1:30 a. m., and because a neighbor testified that at approximately 3:00 a. m. he saw a station wagon parked near the door through which entry was gained into the store, it was established that the crime occurred after 1:00 a. m.

Antonio Riggins, step-father of the Clark brothers, A. D. and Ernest, testified that early in the morning of March 30, the three defendants came to his home and asked to borrow his car to move some meat because their car had broken down. Riggins eventually agreed, and thereafter drove his automobile to the location of their disabled station wagon where he and the defendants transferred meat, candy, cigarettes and chewing gum from the station wagon to Riggins' car. Riggins then drove to the home of A. D. Clark, Sr. (father of the Clark defendants), where the meat was transferred to Clark, Sr.'s car. According to Riggins' testimony, all three defendants were present at that time. Defendant Ernest J. Clark, however, had a different story, to which he testified. As will be indicated below, Ernest testified that he had joined the other defendants innocently. He stated that he went to Tony Riggins' house ahead of the others, ostensibly to get help, but actually to separate himself from whatever activity the other two defendants were carrying on. According to Ernest, upon entering the Riggins' house, he immediately went to the back of the house to talk to his sister. Ernest said he did not speak with Riggins. ²

A deputy sheriff testified that he found some fingerprints on the broken glass door of the market where entry was made. A crime laboratory technician stated that in his opinion the fingerprints were those of defendant Williams. The Chief of Police of the town where the burglary occurred testified to discovering that the freezer of A. D. Clark, Sr. was full of meat, and that the labels on the meat packages were similar to those used by the P & E Market. Clark, Sr. told the court that Riggins had brought him the meat but that the defendants had not accompanied Riggins.

Petitioners Otis Williams and A. D. Clark did not testify at trial. The only witness for the defense was defendant Ernest J. Clark, who denied any participation in the burglary. He testified that on the date of the burglary he had left a friend's house and was walking home, when a car in which Otis Williams and A. D. Clark were riding pulled up beside him. They offered him a ride home which he accepted. ³

Later the car broke down and, as had been indicated above, Ernest J. Clark stated that he went to the Riggins' home to get help. Five or ten minutes later the other defendants arrived and then left with Riggins' car. Ernest Clark testified that he stayed back, and did not leave with the other two defendants. ⁴

When cross examined by the prosecutor, Ernest J. Clark admitted he was only guessing as to the time he had left his friend's house but insisted it could not have been later than 1:00 a. m. Ernest Clark also testified on cross-examination that the station wagon in which A. D. Clark and Otis Williams were riding was full of meat (both "in the back of it and on the seat"), that no store selling meat was open at that hour and that he believed that A. D. Clark was unemployed at that time. R. 374-75. Finally, Ernest Clark testified that he had asked Williams and A. D. Clark to take him home because he had suspected "a little bit" that, in the prosecutor's words, "there was something wrong going on." R. 380.

On redirect examination, defendants' counsel elicited the testimony that the conditions of Ernest Clark's parole required that he be home by 1:00 a. m. R. 392-93. He responded affirmatively when counsel asked him whether the parole entered "into any concern about being found around what looked like a suspicious situation as far as all of this meat." ⁵ R. 282. Counsel also clarified that Ernest Clark had lied to the other defendants about going to get help when the car broke down because he "didn't want to get involved." R. 393.

All three defendants were convicted. On appeal to the Illinois Appellate Court, all three defendants were again represented by one attorney (but he was a different attorney than the one who represented them at trial). The defendants' appellate counsel contended that A. D. Clark and Ernest Clark had been denied the effective assistance of counsel by reason of the trial counsel's failure to request severance of all three cases, because the defenses of all three defendants were mutually antagonistic. A. D. Clark contended that his defense was adverse to Ernest Clark's because, in the words of the Illinois Appellate Court, Ernest Clark's testimony placed Williams and A. D. Clark "in the station wagon with the stolen meat shortly after the burglary had taken place." People v. Clark, 42 Ill.App.3d 472, 355 N.E.2d 619, 622 (3d Dist. 1976). Appellate counsel did not advance the same claim on behalf of Otis Williams because counsel asserted that "it does not appear that, due to the introduction of (Williams') prior judicial confession, he was substantially prejudiced by defense counsel's conflict of interest." Brief and Argument for Defendants-Appellants in People v. Clark, No. 74-C-1808, at 1 n.1. ⁶

The state appellate court construed Illinois law to require that a defendant alleging incompetence of counsel must show actual incompetence and "substantial prejudice resulting, without which the outcome probably would have been different." People v. Clark, 355 N.E.2d at 621. As to A. D. Clark, the court concluded that "(w)hile he was prejudiced by the testimony of Ernest Clark ..., it is doubtful, on the basis of the record, that without such testimony the outcome as to A. D. Clark would have been any different." People v. Clark, 355 N.E.2d at 622. The court therefore concluded that sufficient prejudice had not been shown. As to Otis Williams, the court stated, "(a)s appellate counsel admits, by reason of the prior judicial confession by Williams, it does not appear that the Williams' case was substantially prejudiced by counsel's alleged incompetence." Id. The court therefore affirmed the convictions of both A. D. Clark and Otis Williams. ⁷

On December 23, 1980, A. D. Clark and Otis Williams filed a pro se petition for a writ of habeas corpus in the district court. The parties filed cross motions for summary judgment, and on November 3, 1981, the district court granted summary judgment for the petitioners.

The district court, applying the standard recently formulated by the Supreme Court, noted that, absent a trial objection to ineffective assistance of counsel, the petitioners must establish an "actual conflict of interest adversely affecting his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). The district court found that the petitioners had met this burden of showing actual conflict, but that the Illinois Appellate Court denied relief in reliance on the improper legal standard requiring defendants to show resulting substantial prejudice, without which the outcome probably would have been different. Thus the district court accepted the state court's determination of the facts and applied the correct rule of law. The district court required the defendants to show a conflict of interest by their counsel which actually affected the adequacy of his representation. Based on that showing, the court held that the petitioners' sixth amendment rights had been violated.

Because of Otis Williams' alleged waiver on direct appeal of the ineffectiveness of counsel claim, the district court examined the standards for determining when a habeas petitioner waives his right to independent review of a claim in a federal court. The district court considered the impact of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which bars federal habeas relief if there has been an unexcused failure to make a contemporaneous objection at trial as required by state law. The court held, however, that Wainwright v. Sykes did not bar relief in the instant circumstances. The court, therefore, concluded that both petitioners were entitled to raise the claim of ineffective assistance of counsel and that the convictions of both may be set aside.

Respondents appealed, claiming that there was no actual conflict of interest in defense counsel's representation of the petitioners and Ernest J. Clark because all three d...