Williams v. Parke

• Decision Date: 20 January 1998
• Docket Number: No. 97-1612,97-1612
• Citation: 133 F.3d 971,1998 WL 17794
• Parties: Ronald WILLIAMS, Petitioner-Appellant, v. Al C. PARKE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 971

133 F.3d 971

Ronald WILLIAMS, Petitioner-Appellant, v. Al C. PARKE, Respondent-Appellee.

No. 97-1612.

United States Court of Appeals, Seventh Circuit.

Submitted Nov. 25, 1997. ¹

Decided Dec. 3, 1997.

Published Jan. 20, 1998.

Ronald Williams, pro se.

Phillip D. Hatfield, Hood River, OR, for Appellee Parke.

Before FAIRCHILD, CUMMINGS and MANION, Circuit Judges.

FAIRCHILD, Circuit Judge.

Ronald Williams was convicted by a jury in Indiana state court of one count of possessing a sawed-off shotgun and one count of first-degree murder and was sentenced to forty-five years' imprisonment. He filed a habeas corpus petition pursuant to 28 U.S.C. § 2254 which the district court denied. Williams appeals and we affirm.

Williams was convicted of murdering his estranged wife's lover, Gene Thompson, in front of the grocery store where Thompson and Williams's wife worked. He now seeks collateral relief under 28 U.S.C. § 2254 claiming that the Indiana trial court violated his right to a fair trial when it substituted a juror when he was not present; that trial counsel was ineffective; that the state trial judge was without jurisdiction to enter judgment against and sentence Williams; that the evidence was insufficient to convict him; and that the district court erred in holding that four remaining claims were procedurally defaulted.

After denying Williams's petition for habeas corpus, the district court granted a certificate of appealability on two issues: whether the substitution of a juror during deliberations violated the petitioner's rights under the Sixth Amendment and whether the petitioner's appellate counsel was constitutionally sufficient. Before reviewing these two issues, we address Williams's claim that the district court erred in giving "unreasonable and erroneous reliance" on the state court's factual findings, and that the amendments to § 2254 enacted under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("Act"), do not apply to him. In Lindh v. Murphy, the Supreme Court held that the Act applies only to those petitions filed after the effective date of the Act, or April 24, 1996. Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Because Williams filed his habeas corpus petition on August 28, 1996, after the effective date of the Act, the amendments contained in the Act apply to him. Under the amendments, the factual findings of state trial and appellate courts are presumed to be correct unless the defendant rebuts the presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.").

Williams argues that the district court erred in concluding that his claims related to the improper substitution of a juror after deliberations began were procedurally defaulted. A federal court will not address federal claims in a petition for habeas corpus that were not fairly presented to the state courts. Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). Consequently, if a state court refused to hear a federal claim because it was not properly presented to the state courts, and the refusal was based on adequate and independent state grounds, we are barred from reviewing the claim. Hogan v. McBride, 74 F.3d 144, 146 (7th Cir.), modified, 79 F.3d 578 (7th Cir.1996). It is true that the state appellate court noted on direct appeal that Williams had waived his claim associated with the substitution of a juror because he had presented a different ground on appeal than that he used when objecting at trial. See Jester v. State, 551 N.E.2d 840, 843 (Ind.1990). However, the state court proceeded to decide the issue on the merits; thus, because the state court did not clearly and expressly rely solely on the state procedural grounds, we may consider this claim. See Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557, 115 L.Ed.2d 640 (1991).

After both sides had rested at trial, the trial judge had a brief discussion with counsel when the jury was not present regarding the possible substitution of a juror. The judge noted that one of the jurors may have to be excused for a doctor's appointment, and neither side objected. Defense counsel stated "[t]hat's fine, provided the Court goes to Alternate One first." The next day, after the jury had been instructed and deliberations had begun, the court replaced Juror # 8 with Alternate Juror # 1 at 3:40 p.m. without notifying the parties. After the verdict was rendered at 5:10 p.m. that same day, defense counsel objected and moved for a mistrial on the basis of the substitution. Williams asserts that he had a right to be present during the substitution and that it was constitutionally improper to substitute the jurors outside of his presence. In Henderson v. Lane, the defendant asserted that the substitution after deliberations began of an ill juror with a discharged alternate juror when the defendant was not present violated the Fourteenth Amendment. Henderson, 613 F.2d 175, 177 (7th Cir.1980). In rejecting the petitioner's Fourteenth Amendment claim, this court agreed that the petitioner should have been present for the substitution but concluded that the error was harmless. Id. at 179. The court noted that the petitioner's attorney was present and was able to question the alternate jurors, that the substitution was permissible under Illinois law, that the alternate juror had not formed an opinion about guilt or innocence, and that the petitioner had the opportunity to observe the empaneling of the alternate jurors at the original voir dire. Id. Here, counsel was aware of the possible substitution the day before it occurred and did not object. Further, the petitioner was present during voir dire and the empaneling of the jurors and the alternate jurors. The alternate juror was sworn in with the other jurors before the presentation of the evidence, was present throughout trial, and was present during jury deliberations but did not participate until the substitution. Consequently, we conclude that the petitioner's absence at the time of substitution constituted harmless error.

The second issue certified on appeal was whether appellate counsel was ineffective for not including a challenge to the jury instruction on voluntary manslaughter on direct appeal. In order to succeed on his ineffective assistance of counsel claim, Williams must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "[A]ppellate counsel is ineffective if counsel fails to raise issues that are (1) obvious, and (2) clearly stronger than the one raised." Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir.1994). "When a state court applies established law, its decision must be respected unless 'unreasonable.' " Holman v. Gilmore, 126 F.3d 876, 881 (7th Cir.) (citing 28 U.S.C. § 2254(d)(1)), petition for cert. filed, Dec. 8, 1997 (No. 97-7157).

Williams claims that had the jury...