Willis v. Aiken
| Decision Date | 29 October 1993 |
| Docket Number | No. 92-1098,92-1098 |
| Citation | 8 F.3d 556 |
| Parties | David A. WILLIS, Petitioner-Appellant, v. James E. AIKEN, Commissioner, Indiana Department of Corrections, Porter Superior Court and Linley E. Pearson, Attorney General of Indiana, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James M. Shellow (argued), Dean A. Strang, Shellow, Shellow & Glynn, Anne W. Reed, Reinhart, Boerner, Van Deuren, Norris & Rieselbach, Milwaukee, WI, for petitioner-appellant.
Ronald J. Semler, Asst. Atty. Gen., Office of the Atty. Gen., Federal Litigation, Indianapolis, IN (argued), for respondents-appellees.
William A. Pangman, Pangman & Associates, Waukesha, WI, for amicus curiae.
Before RIPPLE and KANNE, Circuit Judges, and LEINENWEBER, District Judge. *
The petitioner, David Willis, seeks federal habeas relief from a conviction entered by an Indiana state court. Mr. Willis submits that his right to due process of law guaranteed by the Fourteenth Amendment has been violated because the state trial court gave an Indiana pattern jury instruction that states, in part, that "the jury is both the judge of the law and of the facts." The district court dismissed the petition on procedural grounds before reaching the merits. For the reasons that follow, we affirm the judgment of the district court.
In August 1981, attorney David Willis was employed by Carol Durkin to represent her On February 18, 1985, before Mr. Willis contacted Durkin or any of her children to let them know that the lawsuit had been settled and that he had received the settlement checks, Staton appeared in Mr. Willis' office to retrieve his check. Mr. Willis gave Staton a check, drawn from his client trust account, for the sum of $14,818.46. After Staton deposited the check, it was returned to him due to insufficient funds. On April 8, 1985, after Staton had sent Mr. Willis a letter demanding payment, Staton received a cashier's check for $15,500. Subsequently, as a result of Mr. Willis' alleged misuse of client trust funds, the State of Indiana indicted him for theft. 2
three children in litigation over her deceased former husband's life insurance proceeds. As a result of Mr. Willis' representation, on November 19, 1984, checks were issued to Durkin's children, in the amount of $14,818.46 each. The checks were mailed to Mr. Willis for distribution. He also received a separate check for $4,527.86 to cover his attorney fees. On November 30, 1984, Mr. Willis printed Steve Staton's name (one of Durkin's children), as well as his own, on the check payable to Staton and deposited it into his client trust account. That same day, Mr. Willis transferred $811.54 from his general account into his client trust account, making a total deposit of $15,630 into his client trust account on November 30. Prior to these deposits, Mr. Willis' client trust account was overdrawn in the amount of $15.39. The next day, on December 1, Mr. Willis wrote a check from his client trust fund to satisfy a personal obligation in the amount of $15,594.16. 1
In 1987, an Indiana state trial court convicted Mr. Willis of theft. He was sentenced to two years' imprisonment. Mr. Willis appealed his conviction to the state appellate court and presented six issues. Specifically, he argued on direct review that the trial court erred by: (1) considering his status as a former attorney and failing to consider mitigating circumstances; (2) refusing to grant a mistrial based upon an alleged misstatement of the law made by the prosecutor during voir dire; (3) allowing testimony regarding a prior check deception charge and related complaints filed with the Indiana Supreme Court Disciplinary Board; (4) allowing expert testimony regarding an attorney's use of client trust accounts; (5) denying him a fair trial because law books and periodicals were left in areas accessible to the jury during its deliberations; and (6) denying him a fair trial because the trial judge refused to recuse himself after allegedly engaging in ex parte communications with opposing counsel. Mr. Willis did not challenge any of the jury instructions on direct appeal, nor had he objected to the instructions at trial. The state appellate court rejected all six of Mr. Willis' state law challenges. Willis v. State (Willis I), 512 N.E.2d 871 (Ind.Ct.App.1987). Mr. Willis then petitioned the Supreme Court of Indiana, but was denied review without opinion in December 1987.
Thereafter, in 1988, Mr. Willis filed a petition for habeas corpus with the state court, seeking postconviction relief. In his postconviction challenge, Mr. Willis argued, for the first time, that the trial court had committed reversible error by instructing the jurors as follows:
Since this is a criminal case the Constitution of the State of Indiana makes you the judge of both the law and the facts. Though this means that you are to determine the law for yourself, it does not mean that you have the right to make, repeal, disregard, or ignore the law as it exists.
The instructions of the court are the best source as to the law applicable to this case.
Mem.Op. at 14. Specifically, Mr. Willis argued that giving the pattern jury instruction violated his due process rights because the instruction informed the jurors that they could ignore the law either by not requiring that the prosecution prove intent or by shifting the burden of proof from the prosecution to the defense. However, Mr. Willis' failure to raise this issue during his trial violated Indiana's "contemporaneous objection" rule, effectively waiving further review of the issue. Nonetheless, in Indiana, when a trial court commits a "fundamental error," a court may still grant relief despite waiver of the issue. Wilson v. State, 514 N.E.2d 282, 284 (Ind.1987). Therefore, Mr. Willis also argued that a "fundamental error" was committed in giving the instruction. The state postconviction trial court granted Mr. Willis relief and the State and Mr. Willis both appealed. 3
In April 1990, the Indiana appellate court reversed the state trial court. State v. Willis (Willis II), 552 N.E.2d 512 (Ind.Ct.App.1990). In reversing the judgment of the postconviction trial court, the appellate court expressed the view that the instruction had not violated Mr. Willis' due process rights. However, in the course of its opinion, the court did not expressly refer to either the due process guarantee of the Indiana Constitution or the due process guarantee of the Fourteenth Amendment of the Federal Constitution. Indeed, the only explicit reference to either constitution in the three-page opinion is a brief passage noting that article I, section 19 of the Indiana Constitution states that:
In all criminal cases whatever, the jury shall have the right to determine the law and the facts.
Willis II, 552 N.E.2d at 515. The relevant portion of the opinion cites two Indiana court cases. No federal cases are cited. The Indiana court characterized the instruction at issue as an added protection for the defendant:
From a practical viewpoint, the trial court determines the law in all procedural matters, and during the trial when the jury participates in the criminal judicial process, it is the trial court judge who determines the law as to the admissibility of evidence, motions for direct acquittal, mistrial, and the granting of a new trial.
Id. Mr. Willis appealed the decision to the Supreme Court of Indiana, but further review was denied.
Mr. Willis next filed a petition for a writ of habeas corpus in federal district court. He alleged that the state conviction had been obtained in violation of his federal constitutional right to due process as guaranteed by the Fourteenth Amendment. The district court held that, absent a showing of cause and prejudice, it did not have jurisdiction to address Mr. Willis' postconviction challenge to the instruction because
[t]he [Indiana] appellate court reached this determination by way of an analysis of the Indiana Constitution and Indiana case law. Thus, the state court grounds cannot fairly be read to invoke or be intertwined with federal law. Moreover, the grounds relied upon by the appellate court were consistently applied and justified the decision rendered. Accordingly, the state grounds are adequate and independent, precluding federal habeas review absent a showing of cause and prejudice.... Willis can show no cause or prejudice for his procedural default.
Mem.Op. at 15. Although Mr. Willis raised several issues in the district court, only his challenge to the instruction informing the jury that it was the judge of both law and fact has been raised on appeal to this court and we shall limit our discussion accordingly.
In general, federal courts cannot review on petition for writ of habeas corpus questions of federal law that have not been properly presented to the state court. Under this principle, if a state court did not reach a federal issue because it applied, evenhandedly, a state procedural rule, the matter is closed to the federal habeas court absent a showing of cause and prejudice. Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508-09, 53 L.Ed.2d 594 (1977).
Indiana has a procedural rule requiring that an objection to a jury instruction be made in the trial court in order to preserve the issue for appeal. Absent such an objection, the issue is waived and further review is barred. When, under this contemporaneous rule, the state court declines to review an issue not properly preserved, the state court decision rests upon a state law ground that is both "independent of the federal question and adequate to support the judgment." Coleman v. Thompson, --- U.S. ----, ---- - ----, 111 S.Ct. 2546, 2553-54, 115 L.Ed.2d 640...
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