U.S. ex rel. Weismiller v. Lane

• Citation: 815 F.2d 1106
• Decision Date: 30 March 1987
• Docket Number: No. 85-2280,85-2280
• Parties: UNITED STATES of America ex rel. Edward WEISMILLER, Petitioner-Appellant, v. Michael P. LANE, Director of the Illinois Department of Corrections and the Illinois Attorney General, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1106

815 F.2d 1106

UNITED STATES of America ex rel. Edward WEISMILLER Petitioner-Appellant, v. Michael P. LANE, Director of the Illinois Department of Corrections and the Illinois Attorney General Respondents-Appellees.

No. 85-2280.

United States Court of Appeals, Seventh Circuit.

Argued April 10, 1986.

Decided March 30, 1987.

Kenneth E. Balsters, Balsters & Morrison, Bethalto, Ill., for petitioner-appellant.

Kenneth A. Fedinets, Office of Ill. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before WOOD and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

This is an appeal from the denial of habeas corpus relief under 28 U.S.C. Sec. 2254 (1982). As he did in the district court and the state courts, petitioner-appellant challenges the constitutionality of the Illinois "Guilty But Mentally Ill" (GBMI) statutes, ¹ as well as the particular jury instructions given pursuant to those statutes at his trial. Because we find the challenge to the jury instructions to be barred by a state procedural default and we find the challenge to the statute to be without merit, we affirm.

I.

Edward Weismiller was convicted in Illinois state court of the murder of his wife of 25 years, Nancy Weismiller. There is no dispute that he shot her with a .38 caliber revolver, and that she died from the gunshot wounds.

During the period prior to the shooting, Mr. Weismiller and his wife had been experiencing marital difficulties stemming from her sexually explicit correspondence with a prison inmate in Ohio, and from disagreements over how the couple's children should be raised. Their disagreements resulted in her moving out of their home on several occasions. At times the disagreements turned violent; on one occasion Nancy drove a car over Edward's legs. After this incident, we are informed in a classic bit of understatement, their relationship was "strained." Their problems led to a divorce proceeding that was pending at the time of the shooting. In fact, on the morning of the shooting, a divorce hearing was scheduled, but had to be cancelled due to the illness of the presiding judge. Although Weismiller had no recollection of it, his son testified that, upon seeing his wife and a friend that morning, Weismiller said that he would have shot both of them if he had a gun.

At his trial, Mr. Weismiller raised the affirmative defense of insanity. It was his contention that he developed an organic brain disorder when he received a blow to the head from a meat hook in an accident on the night of the killing. This disorder, he claimed, rendered him unable to conform his conduct to the requirements of law. Weismiller claimed to have no recollection of the events which occurred between the time he received the blow to the head and the time he found himself in police custody after the shooting. Shortly after he was injured, his son heard him talking to himself in the basement of their home, saying, "Ed Weismiller, are you ready for this? (Pause) yes, I am."

As required by Illinois law in cases where an insanity defense is raised, the trial court instructed the jury on the verdict of GBMI. According to the instructions given:

A special verdict of "guilty but mentally ill" may be returned instead of the verdicts of "guilty," "not guilty," and "not guilty by reason of insanity" but such a special verdict requires findings by you as follows:

First: That the defendant is guilty beyond a reasonable doubt of the offense of the murder of Nancy Weismiller; and

Second: That the defendant was not legally insane at the time of the commission of the murder of Nancy Weismiller; and

Third: That the defendant was mentally ill at the time of the murder of Nancy Weismiller.

Weismiller's counsel did not object to these instructions at his trial, nor did he object to the failure of the trial court to give more detailed instructions on the verdict of not guilty by reason of insanity. No instructions on those issues were tendered by Weismiller's counsel at trial. On direct review, the Illinois Appellate Court held that these failures to object resulted in a waiver of the asserted errors regarding the jury instructions, and that the errors were not "substantial defects" which, under Illinois law, may be reviewed notwithstanding the lack of a contemporaneous objection "if the interests of justice require." Alternatively, the Appellate Court held, even if the points were preserved, the instructions as a whole were not erroneous and did not deprive Weismiller of a fair trial because the jury had been instructed on the state's burden under Illinois law to prove sanity beyond a reasonable doubt as an element of the offense and had been adequately instructed on the difference between mental illness and insanity. ² The Appellate Court rejected Weismiller's direct challenges to the Illinois GBMI statutes on the merits.

The district court found that Weismiller was barred from raising his challenges to the jury instructions by his state procedural default and that he had not established "cause" and "prejudice" to excuse that default as required by Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Then, the court rejected his direct challenges to the statute on the merits.

II.

We agree with the district court that the petitioner's failure to object to the jury instructions in his state court trial precludes him from raising challenges to them in this collateral proceeding. A state procedural bar will not be lifted to allow federal habeas corpus review absent a showing of "cause" for the procedural default, and "prejudice" resulting therefrom. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783 (1982); Sykes, 433 U.S. at 87, 97 S.Ct. at 2506; Cartee v. Nix, 803 F.2d 296, 300 (7th Cir.1986). Such a procedural bar plainly exists in this case, and petitioner has failed to make the requisite showing.

Petitioner claims that the "cause" for his failure to raise the issue of the allegedly defective jury instructions at his trial was "ineffective assistance of counsel." Petitioner's Br. at 26-27. However, the Supreme Court has recently made clear that mere attorney ignorance or inadvertence is insufficient cause to avoid a procedural default. Murray v. Carrier, --- U.S. ----, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). According to the Court, "So long as a defendant is represented by counsel whose performance is not constitutionally ineffective under the standard established in Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] ... we discern no inequity in requiring him to bear the risk of attorney error that results in a procedural default." Id., 106 S.Ct. at 2645-46 (emphasis added); see also, Cartee, 803 F.2d at 300-01.

Petitioner has made no argument in this court that his counsel's performance was so deficient that it constituted an independent violation of the Sixth Amendment, in spite of the district court's specific holding that it was not. Accordingly any such contention is waived. Thus, there is no showing of "cause" within the meaning of Sykes. ³

Additionally, we reject any suggestion that, because the Illinois Appellate Court addressed the merits in the alternative, the "cause" and "prejudice" standard should not apply. As we have noted repeatedly, where the state court has rejected claims later pressed on habeas corpus "on the 'twin grounds' of (1) lack of merit ... and (2) the petitioner's failure, without justification, to comply with a state procedural rule," the "cause" and "prejudice" standard applies. E.g. Goins v. Lane, 787 F.2d 248, 251 (7th Cir.1986); United States ex rel. Merneigh v. Greer, 772 F.2d 322, 325-28 (7th Cir.1985); Jentges v. Milwaukee County Circuit Court, 733 F.2d 1238, 1243 n. 1 (7th Cir.1984); Farmer v. Prast, 721 F.2d 602, 605-06 (7th Cir.1983). Any suggestion that the law is to the contrary is supported by absolutely no authority and, in light of the clear precedent in this circuit which governs the question, borders on the frivolous.

III.

Weismiller's direct challenges to the Illinois GBMI statute are properly before us on the merits. The respondents make no contention that a state procedural default was committed with respect to these claims, and even if they did, the Appellate Court's opinion makes no mention of waiver, but addresses the challenges solely on the merits. Thus, even if a procedural default had occurred, we would still be required to address the claims on the merits. See Farmer, 721 F.2d at 605 n. 5.

The challenges which are properly before us are three-fold: (1) that the statute is unconstitutional because it "penalizes" the assertion of the insanity defense (which is claimed to be either a constitutional or statutory right); (2) that it violates equal protection by creating a classification which bears no rational relationship to any legitimate state interest; and (3) that it violates due process by encouraging jury confusion and compromise, thus depriving a defendant asserting the insanity defense of his right to have a jury fairly consider his defense. We note that this is apparently a case of first impression within the federal system (with one major exception noted below), although numerous state courts have considered and rejected similar challenges. ⁴ While we realize that those state cases, many of which are cited below, are not controlling on the question of the validity of the statute under the federal constitution, we nonetheless find them persuasive. Accordingly, we reject petitioner's constitutional challenges to the statute.

A.

Weismiller first contends that the GBMI scheme violates the constitution by "penalizing" the unsuccessful assertion of the insanity defense. We disagree. The statute does not provide for any additional punishment for the defendant who asserts an...