Chambers, LaVelle v. McCaughtry, Gary ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1959
LAVELLE CHAMBERS,
Petitioner-Appellant,
v.
GARY R. MCCAUGHTRY, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97-C-289--Thomas J. Curran, Judge.
ARGUED NOVEMBER 2, 2000--DECIDED September 5, 2001
Before HARLINGTON WOOD, JR., RIPPLE and
ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Petitioner
LaVelle Chambers was convicted in
Wisconsin state court in 1991 of one
count of felony murder as party to a
crime and one count of being a felon in
possession of a firearm. The court
imposed a term of fifty years’
imprisonment on the felony murder charge
and eight years’ imprisonment on the
felon in possession charge. The sentences
were to run consecutively. After
unsuccessfully appealing his conviction
in the Wisconsin state courts, Mr.
Chambers filed a petition for habeas
corpus in the United States District
Court. The court denied the writ. For the
reasons set forth in the following
opinion, we affirm the judgment of the
district court.
I
BACKGROUND
A. Facts
On November 18, 1990, Mr. Chambers and
his friend, Eddie Brooks, were driving
around in Brooks’ car with the intention
of committing robbery. As they were
driving near North Avenue and 25th Street
in Milwaukee, they noticed two men
exiting the North Avenue Smoke Shop;
these two individuals were pushing a
safe. Brooks stopped the car. Both Mr.
Chambers and he jumped out and accosted
the men pushing the safe. The men told
Brooks and Mr. Chambers that they had
just broken into the smoke shop and that
they had stolen the safe. They further
indicated that the shop remained open and
could be robbed of other items.
Brooks and Mr. Chambers ran into the
smoke shop and stole various items--guns,
money, and food stamps. As the pair was
looking around the shop for other items
to steal, a police scanner in Brooks’
possession indicated that the police were
being dispatched to the smoke shop.
As Brooks and Mr. Chambers left the
shop, they noticed a dark blue police car
located a short distance away on North
Avenue. The officers in the car
apparently spotted them, made a U-turn,
and drove toward the store. Brooks and
Mr. Chambers then ran west on North
Avenue in an attempt to flee the scene.
After approximately 100 yards, the pair
split up and ran in different directions.
Mr. Chambers hid under a porch and
eventually was found and arrested by the
police. While Mr. Chambers was hiding un
der the porch, Brooks engaged the
pursuing police officer in gunfire. A
bullet shot by Brooks struck and killed
Sergeant Michael Tourmo.
B. Earlier Proceedings
1.
Mr. Chambers was tried for felony murder
as party to a crime and for being a felon
in possession of a firearm. The jury
convicted Mr. Chambers of both counts. He
was sentenced to a term of fifty years’
imprisonment on the felony murder charge
and eight years’ imprisonment on the
felon in possession charge. The sentences
were to run consecutively.
2.
Mr. Chambers appealed his conviction to
the Wisconsin Court of Appeals. He raised
three arguments: (1) a juror was
improperly excluded for cause during voir
dire proceedings; (2) the evidence at
trial was insufficient to convict him of
felony murder, party to a crime, when the
felony was completed, and Brooks and he
had separated before Brooks shot and
killed the police officer; and (3) the
jury instruction that "a crime is not
complete until a successful escape is
made"/1 impermissibly directed a verdict
against Mr. Chambers because the point of
completion of a crime cannot be decided
as a matter of law; rather, it is within
the province of the jury to decide
whether the death was caused while
committing or attempting to commit a
crime.
The state appellate court only
addressed Mr. Chambers’ second argument
and found that sufficient evidence
existed to convict him. Specifically, the
state court determined that the "conduct
undertaken by Chambers, as an accomplice
to armed burglary, falls within the ambit
of the felony murder statute." State v.
Chambers, 515 N.W.2d 531, 533 (Wis. Ct.
App. 1994). The court held that the
evidence only needed to show that Mr.
Chambers committed one of the underlying
felonies specified in the state felony
murder statute; Wisconsin law does not
require that a defendant have an intent
to kill or directly cause the death of a
third party. The state met this burden,
the court concluded. See id. at 534-35.
On June 14, 1994, the Wisconsin Supreme
Court denied review.
3.
After the Wisconsin Supreme Court denied
review of his direct appeal, Mr. Chambers
filed a motion for postconviction relief
in the trial court. He again challenged
the jury instruction given at his trial
that, for purposes of felony murder
liability, "a crime is not complete until
a successful escape is made." Mr.
Chambers contended that the instruction
violated his right to due process of law
under the Fourteenth Amendment of the
federal Constitution because it relieved
the state of its burden of proving all
elements of the offense of felony murder,
in violation of Sandstrom v. Montana, 442
U.S. 510 (1979).
The trial court denied Mr. Chambers’
motion for postconviction relief because
it found the petition to be "predicated
on the same reasons set forth in his
appeal which was decided against him."
R.14, Ex.K at 2. This repetitiousness was
dispositive, the court explained, because
claims resolved against a defendant on
direct appeal cannot be reasserted in a
subsequent postconviction motion. Even if
the claim were characterized as new,
continued the court, it was barred by
State v. Escalona-Naranjo, 517 N.W.2d 157
(Wis. 1994), which prohibits defendants
from raising claims on collateral attack
if they do not first raise them on direct
appeal unless there are sufficient
reasons for the defendant’s failure to
present the claim on direct appeal.
4.
Mr. Chambers appealed the trial court’s
denial of his motion for postconviction
relief to the Wisconsin Court of Appeals.
He argued that the jury instruction
violated his due process rights because
it relieved the state of its burden of
proving all elements of the offense of
felony murder. Specifically, the
instruction directed the jury to assume
an essential element of the offense--that
Mr. Chambers caused the death of Officer
Tourmo while committing or attempting to
commit the predicate offense of armed
burglary.
The appellate court concluded that the
trial court properly denied Mr. Chambers’
motion. It found that the argument
regarding the jury instruction was
predicated upon the same factual basis as
his contention on direct appeal that
there was not enough evidence to convict
him because he was not present when the
murder occurred. Because this issue was
adjudicated finally against Mr. Chambers
on direct appeal, the state appellate
court held, he could not again raise it.
Moreover, even if the jury instruction
challenge were construed as a new and
independent claim, it was barred by
Escalona-Naranjo because Mr. Chambers
failed to show sufficient reason for not
raising the argument on direct appeal.
The Wisconsin Supreme Court again denied
review on April 6, 1999.
5.
Mr. Chambers next sought a writ of
habeas corpus in the United States
District Court. See 28 U.S.C. sec. 2254.
Initially acting pro se, Mr. Chambers
first filed his habeas petition on March
24, 1997. The district court dismissed
the petition without prejudice so that
Mr. Chambers could pursue the
postconviction relief in the Wisconsin
courts that we have detailed above. On
April 24, 1999, after he had exhausted
his opportunities for state
postconviction relief, Mr. Chambers
refiled his petition and asserted that
(1) the evidence adduced at trial was
insufficient to convict him of felony
murder and (2) the jury instruction that
"a crime is not complete until a
successful escape is made" violated his
due process rights by relieving the state
of its burden of proving all elements of
the offense of felony murder beyond a
reasonable doubt.
The case was assigned to a magistrate
judge, who recommended, on April 29,
1999, that the petition be denied and the
action dismissed. The magistrate judge
believed that the evidence used to
convict Mr. Chambers under Wisconsin’s
definition of felony murder was
sufficient, and, "to the extent that
Chambers claims the Wisconsin courts
improperly construed Wisconsin state law,
such [a] claim cannot support federal
habeas relief." R.11 at 11. The
magistrate judge also rejected Mr.
Chambers’ second claim, characterizing
the challenge to the jury instruction as
one based upon an incorrect application
of state law, again not a basis for
federal habeas relief.
Mr. Chambers objected to this
recommendation. The district court, upon
considering Mr. Chambers’ objections to
the recommendation, declined to accept
the magistrate judge’s conclusions and
ordered that the State file an answer
along with transcripts of the state court
proceedings. The district court remanded
the case to the magistrate judge for a
recommendation on the merits.
The magistrate judge then granted Mr.
Chambers’ request for appointment of
counsel and set up a briefing schedule.
After receiving the briefs, the
magistrate judge again recommended that
the habeas petition be denied and the
action dismissed. Specifically, the
magistrate judge disposed of Mr.
Chambers’ two claims in almost the
identical manner as he had in the
previous recommendation. The magistrate
judge also noted, however, that Mr.
Chambers’ court-appointed counsel had
created a third argument in his brief by
placing a "slightly different twist" on
the due process claim. R.26 at 12.
Counsel contended that the jury
instruction amounted to an ex post facto
application of the state felony murder
statute; the element of felony murder
that requires that a death occur while
the defendant was committing or
attempting to commit armed burglary had
not been construed to include a death
that occurs while the accomplices are
escaping the scene of an armed burglary.
Although the magistrate judge indicated
that the claim may have been procedurally
defaulted and not exhausted in the state
courts, he addressed the merits
nonetheless. He concluded that Wisconsin
law at the time of the offense clearly
rendered Mr. Chambers liable as a party
to felony murder and that Mr. Chambers
was on reasonable notice that he could be
charged with and convicted of a murder
committed by his confederate if that
murder were committed during the course
of an attempted escape from an armed
burglary.
In a decision and order dated February
29, 2000, the district court adopted the
magistrate judge’s recommendation and
ordered that Mr. Chambers’ habeas
petition be dismissed. A judgment of
dismissal was entered the same day. In
another order issued March 3, 2000, the
district court denied Mr. Chambers’
motion for reconsideration. This appeal
followed.
II
DISCUSSION
Mr. Chambers appeals the district
court’s disposition of his habeas
petition. He contends that he is entitled
to a writ of habeas corpus because the
state trial court’s instruction to the
jury that "a crime is not complete until
a successful escape is made" violated his
right to due process guaranteed by the
Fourteenth Amendment by retroactively
imposing a broader, unexpected definition
of felony murder. The State, however,
claims that Mr. Chambers failed to
exhaust this claim and, therefore, has
procedurally defaulted it. Even if he has
not, the State argues, the jury
instruction was not constitutionally
infirm.
A. Procedural Default
A federal district court may not grant
a writ of habeas corpus unless the
petitioner has exhausted his state court
remedies. See 28 U.S.C. sec.
2254(b)(1)(A). Failure to exhaust
available state court remedies
constitutes a procedural default. See
Howard v. O’Sullivan, 185 F.3d 721, 725
(7th Cir. 1999). To avoid procedural
default, a habeas petitioner must have
presented fully and fairly his federal
claims to the state courts before he may
obtain federal review of those same
claims. See O’Sullivan v. Boerckel, 526
U.S. 838, 844 (1999); see also Rodriguez
v. Scillia, 193 F.3d 913, 916 (7th Cir.
1999). "Fair presentment requires the
petitioner to give the state courts a
meaningful opportunity to pass upon the
substance of the claims later presented
in federal court." Rodriguez, 193 F.3d at
916; see also Howard, 185 F.3d at 725.
The petitioner must have placed both the
operative facts and the controlling legal
principles before the state courts. See
Ellsworth v. Levenhagen, 248 F.3d 634,
639 (7th Cir. 2001); Wilson v. Briley,
243 F.3d 325, 327 (7th Cir. 2001). A mere
"passing reference" to a constitutional
issue certainly does not suffice. Fortini
v. Murphy, 257 F.3d 39, 44 (1st Cir.
2001).
When applying these standards, federal
courts should "avoid hypertechnicality."
Verdin v. O’Leary, 972 F.2d 1467, 1474
(7th Cir. 1992). A petitioner may
reformulate his claims as long as the
substance of the argument remains the
same. See Picard v. Connor, 404 U.S. 270,
277-78 (1971) ("Obviously there are
instances in which the ultimate question
for disposition will be the same despite
variations in the legal theory or factual
allegations urged in its support. . . .
We simply hold that the substance of a
federal habeas corpus claim must first be
presented to the state courts.")
(internal citations and quotation marks
omitted); see also Boyko v. Parke, 99-
3771, 2001 WL 863598, at *6 (7th Cir.
July 27, 2001). Mere "variations in the
same claim rather than a different legal
theory will not preclude exhaustion."
Wilks v. Israel, 627 F.2d 32, 38 (7th
Cir. 1980).
A petitioner’s reformulation of his
claim, however, should not "place the
claim in a significantly different
posture by making the claim stronger or
more substantial." Boyko, 2001 WL 863598,
at *6. We previously have noted that the
"leeway afforded to habeas petitioners in
’reformulating’ due process arguments is
much more limited than in other
constitutional contexts." Kurzawa v.
Jordan, 146 F.3d 435, 443 (7th Cir. 1998)
(explaining that what the petitioner
requested was "much more than a mere
reformulation of his arguments--he has
raised two entirely new, separate due
process arguments on collateral appeal").
Mere similarity of claims is insufficient
to exhaust. See Picard, 404 U.S. at 276.
Given these principles, we must conclude
that Mr. Chambers has failed to exhaust
his claim and, consequently, has
committed a procedural default. As the
state points out, Mr. Chambers raised an
entirely new and distinct challenge to
the jury instruction in his brief to the
district court. He argued for the first
time that the instruction constituted a
retroactive interpretation of the felony
murder statute in violation of his right
to due process, as set forth in Bouie v.
City of Columbia, 378 U.S. 347, 353-54
(1964). This argument had not been
presented squarely to the state courts or
even in the habeas petition itself./2
Rather, Mr. Chambers consistently argued
to the state courts that the jury
instruction was violative of due process
because it relieved the state of its
burden of proving all elements of the
offense of felony murder beyond a
reasonable doubt. His mention of the ex
post facto argument was in a footnote in
the middle of an argument on another
point. This passing reference hardly
placed the Wisconsin courts on notice
that he was presenting the argument as an
independent basis for relief. Nor did
this reference present the state
appellate court with sufficient
elaboration, especially in terms of the
relevant federal and Wisconsin case law,
now cited prominently in the current
appeal before us, to permit that court to
decide the issue. Cf. Howard, 185 F.3d at
726 (holding that a footnote reference
that presented neither the legal nor
factual basis of the petitioner’s claim
of ineffective assistance of trial
counsel was not sufficient to preserve it
for habeas review). In short, the single
reference buried in a footnote in an
argument on another contention hardly
alerted the state judges, as a practical
matter, that Mr. Chambers was seeking
relief on the ground now argued at length
before us. See Bocian v. Godinez, 101
F.3d 465, 469 (7th Cir. 1996) (noting
that a "single reference" to the
Fourteenth Amendment and the Supreme
Court case of Furman v. Georgia, 408 U.S.
238 (1972), did not sufficiently alert
the Illinois court to the petitioner’s
vagueness claim).
Although Mr. Chambers has challenged the
same jury instruction at each level of
appellate review, the gravamen of the
unfairness about which he complains has
changed. The ex post facto argument, like
the burden-shifting claim, is a due
process argument, but it alleges a
distinct violation--that a court, by
retroactively expanding the definition of
a crime, has done what the legislature is
forbidden by the Ex Post Facto Clause
from doing. See Bouie, 378 U.S. at 353-54
("If a state legislature is barred by the
Ex Post Facto Clause from passing . . .
a law, it must follow that a [state
court] is barred by the Due Process
Clause from achieving precisely the same
result by judicial construction."). As
courts have noted in the past, we must
look beyond the due process label to a
more meaningful level of specificity. See
Duncan v. Henry, 513 U.S. 364, 366 (1995)
(noting that the petitioner’s failure to
raise a particular due process argument
in state court "is especially pronounced
in that [the petitioner] did specifically
raise a due process objection before the
state court based on a different claim .
. . . [M]ere similarity of claims is
insufficient to exhaust."); Riggins v.
McGinnis, 50 F.3d 492, 494 (7th Cir.
1995) (noting that due process is "such a
ductile concept that phrase-dropping is
the equivalent of no argument at all");
Wilks, 627 F.2d at 38 (concluding that
the petitioner failed to exhaust;
although the "claim he presented to the
trial court arises out of the same
factual circumstance as the
constitutional claim, it is a separate
legal issue").
Because Mr. Chambers did not present his
retroactivity issue to the state courts,
he has procedurally defaulted on this
contention./3
B. Merits
We have determined that Mr. Chambers has
procedurally defaulted on his claim, and
the judgment of the district court is
affirmed on this ground alone. If we were
to reach the merits, however, we still
would affirm the judgment of the district
court.
Mr. Chambers notes that the felony
murder statute under which he was
convicted applies only to deaths caused
while committing or attempting to commit
a specified felony. At the time of Mr.
Chambers’ offense, no Wisconsin appellate
opinion had construed this language to
include deaths caused after fleeing the
scene of a felony. By instructing the
jury that a "crime is not complete until
a successful escape is made," Mr.
Chambers contends, the state trial court
expanded the scope of the felony murder
statute. It announced and retroactively
imposed a new, broader definition of
felony murder in contravention of the
Fourteenth Amendment. Mr. Chambers relies
on the decision of the Supreme Court of
the United States in Bouie v. City of
Columbia, 378 U.S. 347, 353-54 (1964). In
that case, the Supreme Court held that
courts may not enlarge criminal statutes
to punish past conduct. Specifically, an
unforeseeable judicial enlargement of a
criminal statute, applied retroactively,
operates precisely like an ex post facto
law, such as Art. I, sec. 10 of the
Constitution forbids. . . . If a state
legislature is barred by the Ex Post
Facto Clause from passing such a law, it
must follow that a State Supreme Court is
barred by the Due Process Clause from
achieving precisely the same result by
judicial construction.
The State claims that the Wisconsin
courts properly interpreted and applied
the state felony murder statute. It
claims that case law in existence at the
time Mr. Chambers committed the offense
at issue plainly rendered him liable as a
party to felony murder.
Our inquiry becomes, therefore, whether
the conviction in this case amounted to a
constitutionally impermissible
enlargement of the scope of the Wisconsin
felony murder statute. We agree with the
district court that the decision of the
Wisconsin courts cannot be so
characterized.
In support of his argument, Mr. Chambers
relies upon two Wisconsin decisions,
Brook v. State, 123 N.W.2d 535 (Wis.
1963), and Hoffman v. State, 59 N.W. 588
(Wis. 1894). In Brook, two brothers,
driving home after committing a burglary,
were stopped by a police officer for a
traffic violation. Although the officer
was not aware of the burglary, the
defendant and his brother shot him,
fearing discovery. The defendant appealed
after being convicted of first-degree
murder, arguing that the jury should have
been permitted to convict on felony
murder as a lesser-included offense.
The court rejected the argument, holding
that the killing was not a "natural or
probable consequence of the commission of
the prior burglary" within the meaning of
the felony murder statute nor did it
"occur by reason of or as part of [the]
burglary." Id. at 540. There was no
connection between the burglary and the
traffic stop; no evidence was offered
that established that the burglary had
been detected when the officer stopped
the defendant’s car. See id. at 539-40.
Notably, Brook did not involve an
escape; the burglary and the killing were
perceived by the court as two distinct
events. Further, there was no hot
pursuit; the officer noticed a dangling
licence plate and pulled the defendant
over to inspect. In Mr. Chambers’ case,
in contrast, the burglary and the killing
were related--to the point that the
events might be considered part of the
same res gestae. Clearly, the killing of
the pursuing police officer was committed
to bring the burglary to a successful
conclusion; the officer was pursuing Mr.
Chambers and his partner when the killing
occurred. Indeed, in Hoffman, 59 N.W. at
592, the Wisconsin Supreme Court noted
that a legal relationship must exist
between the felony and the killing such
that the "killing occurred by reason and
as a part of the felony." Hoffman, like
Brook, also did not involve an escape and
hot pursuit from the scene of a crime.
Despite its factual differences with Mr.
Chambers’ case, Brook does contain
wording that, when read in isolation,
might be supportive of Mr. Chambers’
position. The Supreme Court of Wisconsin
wrote in dicta:
We entertain grave doubt that, if the
killing had actually occurred during a
hot pursuit of defendant and his brother
from the scene of the burglary, it would
have been ’a natural and probable
consequence of the commission’ of the
burglary within the meaning of sec.
940.03, Stats.
Brook, 123 N.W.2d at 539. This dicta from
Brook does not stand in isolation in the
jurisprudence of Wisconsin. In a later
case, State v. Pharr, 340 N.W.2d 498
(Wis. 1983), the Supreme Court of
Wisconsin substantially clarified
thegoverning principles in this area. The
defendant, Pharr, together with Timothy
and Sharon Rice, robbed a home in Rock
County, Wisconsin. On their drive back to
Madison (Timothy Rice was driving), a
state trooper stopped the car because he
had observed it cross the center line of
the road. The trooper saw a gun lying on
the front seat. As he began to ask about
the weapon, Timothy Rice grabbed the gun,
fired several shots, and then sped
away./4
The jury found Pharr guilty of attempted
first-degree murder, party to a crime, on
the theory that Pharr and Rice conspired
to commit the underlying robbery and that
Pharr shared Rice’s intent to escape
successfully at any cost. In affirming
the conviction, the Supreme Court
rejected the defendant’s argument that
the robbery and escape attempt were
separate acts--specifically, that once
the participants left the robbery scene
and entered the highway to return to
Madison, they had reached a safe harbor.
The court explained:
Therefore, the defendant asserts, Rice’s
shooting was not a natural and probable
consequence of the robbery because the
robbery itself was over. We disagree with
this reasoning. The robbery was not
complete until a successful escape was
made. In fact, the early morning return
to Madison, with a car fully loaded with
stolen goods shortly after a violent
armed robbery, was perhaps the most
dangerous part of the whole episode in
terms of detection and apprehension by
the police.
Id. at 505.
Relatedly, in State v. Marshall, 284
N.W.2d 592 (Wis. 1979), the defendant was
convicted of being a party to the crime
of first-degree murder. The Wisconsin
Supreme Court, in upholding the
conviction, emphasized that party-to-a-
crime liability is so broad that a
defendant need not even be present during
the commission of the crime:
From these facts we believe the jury
could have reasonably inferred that
either the defendant or one of his
companions shot and killed Thomas West.
It is not necessary that the defendant
himself be the one who pulled the
trigger. He was convicted not of directly
committing the crime himself, but of
being a party to the commission of it.
Thus, it is only necessary for defendant
to have been a willing participant. Such
participation as would constitute aiding
and abetting does not even require that
the defendant be present during the
killing.
Id. at 601.
Pharr and Marshall contribute
significantly to an understanding of the
law on when participation in a felony
ends. The principal difference between
Pharr and the instant case is that Mr.
Chambers was not present when the
shooting occurred. Marshall, however,
establishes that, under Wisconsin’s
theory of being a party to a crime,/5
Mr. Chambers did not have to be present
to be liable. Taken together, the cases
indicate that Mr. Chambers can be held
accountable under Wisconsin law./6
We note, moreover, that, after the
decision of the state court of appeals in
this case, the Supreme Court of Wisconsin
explicitly declared in State v. Oimen,
516 N.W.2d 399 (Wis. 1994), that the
felony murder statute "encompasses the
immediate flight from a felony." Id. at
409. Indeed, the court noted that its
decision was compatible with the majority
of states. See id. at n.18.
 Our reading of Oimen confirms our view
that the application of the felony murder
statute to Mr. Chambers was a matter of
logical interpretation of the statute’s
purpose and not the sort of unpredictable
shift in application that gives rise to
the fundamental fairness concerns
articulated in Bouie. Indeed, the Supreme
Court of the United States has explained
in the years since Bouie that the
"touchstone is whether the statute,
either standing alone or as construed,
made it reasonably clear at the relevant
time that the defendant’s conduct was
criminal." United States v. Lanier, 520
U.S. 259, 267 (1997). In our view, Mr.
Chambers was on reasonable notice that
the Wisconsin felony murder and party-to-
a-crime statutes had been construed to
encompass his situation. Although an
"unforeseeable application" of existing
law deprives criminal defendants of due
process, Douglas v. Buder, 412 U.S. 430,
432 (1973) (per curiam), no such
unforeseeability existed here. Mr.
Chambers was on notice that he could be
charged with and convicted of armed
burglary as well as any other crime that
occurred as a "natural and probable
consequence of the intended crime"--
including measures taken to effectuate an
escape from the scene of the crime. He
was not subjected retroactively to an
expanded scope of liability. As we have
noted, Bouie applies only to
"unpredictable shifts in the law, not to
the resolution of uncertainty that marks
any evolving legal system." United States
v. Burnom, 27 F.3d 283, 284-85 (7th Cir.
1994)./7
Conclusion
Mr. Chambers has procedurally defaulted
his due process claim based on the ex
post facto application of the felony
murder statute to his attempted escape
after committing armed burglary. In any
event, we conclude that his argument is
without merit. The opinion of the
district court denying the writ of habeas
corpus is therefore affirmed.
AFFIRMED
FOOTNOTES
/1 The challenged jury instruction read in pertinent
part:
The second element [of felony murder] requires
that the defendant or one he was intentionally
aiding and abetting as party to a crime caused
the death of Michael Tourmo while committing the
crime of Armed Burglary. In this regard, a crime
is not complete until a successful escape is
made.
R.14, Ex.M, Doc.52 at 9.
/2 In his brief to the Wisconsin Court of Appeals
during postconviction proceedings, Mr. Chambers
did mention the Ex Post Facto Clause in a foot-
note but only in passing and in the context of
his argument that the jury instruction improperly
shifted the burden of proof from the state to
him. The footnote states:
As remarked in Hoffman v. State, 88 Wis. 166,
179, 59 N.W. 588, 592 (1894), the court held
that: "It is not enough that the killing occurred
soon or presently after the felony attempted or
committed. There must be such a legal relation
between the two that it can be said that the
killing occurred by reason and as a part of the
felony." It is clear and convincing from the
facts in this case that Appellant was not in-
volved in any way with the chase or fight of
police and Brooks. Afterperforming the burglary
the two men went their own separate ways. This
provides the disassociation, separation, sever-
ance, detachment, and split-up of the legal
connection between the shooting and the burglary;
this prevents the legal relation between the two
events. We must note that the due process clause
places judges under [the] same basic constraint
as [the] ex post facto clause does for legisla-
tures: new rules that increase punishment for
crime, cannot be applied to conduct predating
charge. United States Constitution Amendments,
Articles 1, sec.sec. 9 clause 3, 10, clause 1;
Amendments Fifth and Fourteenth, see also Collins
v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715
(1990).
R.14, Ex.I at 13.
/3 The Supreme Court of Wisconsin held in 1994 that
an issue must be raised on direct appeal to be
considered in a collateral motion. See State v.
Escalona-Naranjo, 517 N.W.2d 157 (Wis. 1994). The
case was decided on June 22, 1994. The previous
rule, as set forth in Bergenthal v. State, 242
N.W.2d 199 (Wis. 1976), was that a constitutional
claim not raised on direct appeal could be raised
in a collateral attack.
We have held that the Escalona-Naranjo rule
cannot be the ground of a procedural default for
purposes of barring federal habeas review when
the state post-trial motion was filed after
Bergenthal but before Escalona-Naranjo. See Braun
v. Powell, 227 F.3d 908, 914 (7th Cir. 2000),
cert. denied, 121 S. Ct. 1164 (2001); Liegakos v.
Cooke, 108 F.3d 144, 145 (7th Cir. 1997) (on
petitions for rehearing) (per curiam) ("Our
opinion holds that prisoners whose direct appeals
came after Bergenthal v. State, but before Esca-
lona-Naranjo, are entitled to raise constitution-
al arguments in federal court under 28 U.S.C.
sec. 2254 without justifying their omission from
the briefs on direct appeal." (citation omit-
ted)).
Mr. Chambers’ direct appeal was decided on
March 29, 1994, by the Wisconsin appellate court.
The state supreme court denied review on June 14,
1994. Because Mr. Chambers’ direct appeal was
filed and decided before Escalona-Naranjo was
handed down, the rule articulated in that case
does not operate as a procedural bar here under
our rule set forth in Braun and Liegakos.
We note, however, that the Wisconsin courts
have construed Escalona-Naranjo as applying
retroactively. On collateral appeal, the trial
court held that a decision such as Escalona-
Naranjo that overrules or repudiates an earlier
decision generally applies retroactively. "If the
Escalona court did not intend to follow the
general rule of retroactive application, it would
have specifically held that its ruling applied
prospectively." R.14, Ex.K at 2.
Moreover, in affirming the trial court’s denial
of the motion, the Wisconsin Court of Appeals
explained that the Seventh Circuit cases such as
Liegakos "concern the scope of federal habeas
corpus review, not the proper application of
retroactivity principles by Wisconsin courts to
criminal cases in this state." R.14, Ex.G at 3
n.1.
/4 We also note that Pharr does not deal directly
with the felony murder statute. Pharr was con-
victed of attempted first-degree murder as a
party to a crime. Yet, in order to show that
Pharr had, at the time of the murder, a community
of interests with Timothy Rice, the court relied
on the fact that, as they escaped, they were
still in the process of committing the robbery
they had jointly undertaken.
/5 Wisconsin’s party-to-a-crime statute
reads as follows:
(1) Whoever is concerned in the commis-
sion of a crime is a principal and may be
charged with and convicted of the commis-
sion of the crime although the person did
not directly commit it and although the
person who directly committed it has not
been convicted or has been convicted of
some other degree of the crime or of some
other crime based on the same act.
(2) A person is concerned in the commis-
sion of the crime if the person:
(a) Directly commits the crime; or
(b) Intentionally aids and abets the
commission of it; or
(c) Is a party to a conspiracy with an-
other to commit it or advises, hires,
counsels or otherwise procures another to
commit it. Such a party is also concerned
in the commission of any other crime
which is committed in pursuance of the
intended crime and which under the cir-
cumstances is a natural and probable
consequence of the intended crime. This
paragraph does not apply to a person who
voluntarily changes his or her mind and
no longer desires that the crime be com-
mitted and notifies the other parties
concerned of his or her withdrawal within
a reasonable time before the commission
of the crime so as to allow the others
also to withdraw.
Wis. Stat. sec. 939.05.
/6 Mr. Chambers makes much of the difference between
armed robbery, what Pharr committed, and armed
burglary, what he committed. He contends that the
nature of the specified felony will affect the
point at which the felony is no longer being
committed. According to Mr. Chambers, the court
in Pharr relied on the asportation element of the
robbery--that the defendant was engaged in carry-
ing away the stolen items when he was stopped.
Thus, the crime of robbery continues after the
taking of the property is complete.
Burglary, in contrast, is complete upon the
slightest entry into the premises if the entry is
made with the requisite intent and without the
consent of the person in lawful possession, Mr.
Chambers submits. Similarly, armed burglary is
connected by definition to a fixed premises.
Because he committed armed burglary, his crime
was complete upon fulfilling the elements of the
crime and did not include the subsequent escape.
Our review of the court’s decision in Pharr
reveals no basis for the distinction that Mr.
Chambers would have us draw. Pharr does not rely
on the asportation element of robbery, but on the
practical consideration that the criminal act
would not have been successful until "there was
an undetected escape from the scene of the rob-
bery and a return to the ’safe harbor’ of Madi-
son, where the stolen goods could have been
disposed." Pharr, 340 N.W.2d at 505.
/7 Although Mr. Chambers argued in his habeas peti-
tion that there was insufficient evidence to
convict him and that the jury instruction improp-
erly shifted the burden of proof to him on an
element of the offense of felony murder, he did
not pursue these matters in his briefs to this
court. Accordingly, we need not address those
issues.