Charles Walker v. Kathy Griffin ( 2016 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 15-2147
    CHARLES WALKER,
    Petitioner-Appellant,
    v.
    KATHY GRIFFIN, Superintendent,
    Miami Correctional Facility,
    Respondent-Appellee.
    ____________________
    Appeal from the United States District Court for the
    Southern District of Indiana, Indianapolis Division.
    No. 1:13-cv-1476-JMS-TAB — Jane Magnus-Stinson, Judge.
    ____________________
    ARGUED MAY 24, 2016 — DECIDED AUGUST 29, 2016
    ____________________
    Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
    Circuit Judges.
    WOOD, Chief Judge. Charles Walker was convicted in an In-
    diana court of robbery, adjudicated a habitual offender pur-
    suant to Indiana Code § 35-50-2-8, and sentenced to 40 years
    in prison. Twenty of those years were attributable to his ha-
    bitual-offender status. The version of the habitual-offender
    statute Indiana had in place at the time applied if a defendant
    2                                                    No. 15-2147
    had been convicted of two prior unrelated felonies, in a spe-
    cific sequence: the second felony had to have been committed
    after the commission of and sentencing for the first, and the
    present crime had to have been committed after the commis-
    sion and sentencing of the second earlier offense. At Walker’s
    trial, the state provided evidence of three prior felonies, but it
    failed to offer evidence of the date when one of the crimes was
    committed.
    The only claim Walker presses before us is ineffective as-
    sistance of appellate counsel. He contends that his lawyer on
    direct appeal should have challenged the sufficiency of the
    evidence for the habitual-offender conviction, given the miss-
    ing date. Even assuming that counsel’s performance fell be-
    low the constitutional minimum, we conclude that Walker’s
    petition for a writ of habeas corpus was properly dismissed.
    The state appellate court’s conclusion that Walker’s Sixth
    Amendment right to counsel was not infringed meets the gen-
    erous standards that apply under 
    28 U.S.C. § 2254
    , and so we
    affirm.
    I
    In 2006 an Indiana jury convicted Walker of a robbery that
    took place on November 29, 2005. 
    Ind. Code § 35-42-5-1
    . He
    was also charged with being a habitual offender. 
    Ind. Code § 35-50-2-8
     (2005). The version of the habitual-offender statute
    in place in 2006 said, in relevant part: “the state may seek to
    have a person sentenced as a habitual offender for any felony
    by alleging, on a page separate from the rest of the charging
    instrument, that the person has accumulated two (2) prior un-
    related felony convictions.” 
    Id.
     It required proof of the two
    priors beyond a reasonable doubt. 
    Id.
     § 35-50-2-8(g). (The law
    No. 15-2147                                                     3
    was amended in 2014 and 2015, but we cite the version that
    applies to Walker’s case.)
    Walker’s original charging document listed five prior fel-
    ony convictions: (1) a 1975 burglary, (2) a 1980 robbery, (3) a
    1989 burglary, and (4) two 1995 cocaine-related convictions
    for drug conduct that took place in 1994. The state later filed
    an amended information that omitted the 1975 burglary. At
    trial, the prosecutor presented evidence to the jury including
    the docket and sentencing transcript from the 1980 robbery
    and the docket and abstract of judgment of the 1989 burglary.
    But for the 1989 burglary, neither the docket nor abstract of
    judgment listed the date on which the crime was committed.
    They indicated only the charging date (March 31, 1989) and
    the conviction date (June 30, 1989). The charging information
    for that burglary did list the commission date, but it was not
    presented to the jury. Walker later included the information
    for the 1989 offense in his post-conviction petition; it indicates
    a commission date of March 10, 1989.
    On direct appeal, Walker challenged the sufficiency of the
    evidence supporting the robbery conviction and the reasona-
    bleness of the 40-year sentence. The Indiana Court of Appeals
    affirmed. Walker v. State (Walker I), 
    872 N.E.2d 704
     (Ind. Ct.
    App. 2007). Walker then filed a state post-conviction petition
    in which he argued that both his trial and appellate counsel
    were ineffective for failing to challenge the sufficiency of the
    evidence for the habitual-offender conviction based on the
    missing commission date. The first court to review the peti-
    tion, an Indiana superior court in LaPorte County, ruled that
    the 1995 drug convictions were statutorily ineligible to serve
    as prior felonies for habitual offender purposes but otherwise
    denied relief.
    4                                                   No. 15-2147
    The court of appeals, adopting the superior court’s finding
    with respect to the 1995 convictions, considered only the 1980
    and 1989 convictions in its post-conviction review. Walker v.
    State (Walker II), 
    988 N.E.2d 1181
     (Ind. Ct. App. 2013). The
    court agreed with Walker that his trial counsel performed de-
    ficiently for failing to move for a directed verdict based on the
    absence of the 1989 commission date, but found that there was
    no prejudice. 
    Id. at 1188
    . Had counsel so moved, the appellate
    court reasoned, the trial court would have reopened the case
    and allowed the state to introduce the charging information.
    
    Id.
     The court found that appellate counsel did not perform de-
    ficiently because he had challenged the habitual-offender con-
    viction in his argument about the reasonableness of the sen-
    tence. 
    Id. at 1191
    . Moreover, the court pointed out, Walker’s
    appellate counsel would have seen the presentence investiga-
    tion report, where “the only thing glaring from the record is
    that Walker had committed crime after crime after crime dur-
    ing his adult life.” 
    Id.
     The missing date for the 1989 burglary
    was “not significant and obvious.” 
    Id.
    In his federal habeas corpus petition, Walker challenged
    only the effectiveness of the assistance of appellate counsel.
    The district court, noting that the proceedings were governed
    by the Antiterrorism and Effective Death Penalty Act of 1996
    (AEDPA), 
    28 U.S.C. § 2254
    (a), found that the state court did
    not unreasonably apply clearly established federal law in
    finding effective assistance of appellate counsel. It refused to
    issue the writ and denied a certificate of appealability. This
    court granted a certificate limited to the question of whether
    appellate counsel was effective.
    No. 15-2147                                                    5
    II
    We review the district court’s denial of Walker’s section
    2254 petition de novo, but with great deference to the state
    courts’ decisions. Coleman v. Hardy, 
    690 F.3d 811
    , 814 (7th Cir.
    2012). We look to the last state court decision to rule on the
    merits of the claim, McCarthy v. Pollard, 
    656 F.3d 478
    , 483 (7th
    Cir. 2011), to see if that ruling is “contrary to” clearly estab-
    lished federal law, “involved an unreasonable application of”
    clearly established federal law, or “was based on an unrea-
    sonable determination of the facts in light of the evidence pre-
    sented in the State court proceeding.” 
    28 U.S.C. § 2254
    (d)(1)–
    (2). Walker argues only that the state court decision was an
    unreasonable application of clearly established federal law.
    Walker argues that his appellate attorney, Don Pagos, per-
    formed deficiently in failing to notice or challenge the absence
    of the commission date for the 1989 crime. Indiana allows a
    sufficiency challenge to a habitual-offender finding only on
    direct appeal, he says, and so it was then or never. Had Pagos
    raised the issue on appeal, Walker contends, the Indiana
    Court of Appeals would necessarily have reversed the habit-
    ual-offender finding. He then asserts that he could not have
    been retried after such a reversal, because the sequence of the
    prior felonies is an element of the habitual-offender convic-
    tion that must be found by a jury, and therefore retrial would
    violate the double jeopardy clause. All that would have been
    left for the court of appeals to do, Walker concludes, would
    have been to strike 20 years from his sentence.
    A
    The clearly established federal law that controls ineffec-
    tive assistance of counsel claims is Strickland v. Washington,
    6                                                   No. 15-2147
    
    466 U.S. 668
     (1984). Under Strickland, the defendant must
    demonstrate both that counsel’s performance was constitu-
    tionally deficient, and that the deficient performance preju-
    diced him. 
    Id. at 687
    . We do not decide that question on our
    own, however; we are allowed to consider only whether the
    state court unreasonably applied Strickland’s standards. Har-
    rington v. Richter, 
    562 U.S. 86
    , 101 (2011). Because the state
    court made a finding only on appellate counsel’s perfor-
    mance, and not prejudice, we assess prejudice independently,
    Harris v. Thompson, 
    698 F.3d 609
    , 625 (7th Cir. 2012), although
    the outcome of this case would be no different even if we were
    to impute a finding on prejudice to the state court and apply
    AEDPA deference.
    1
    We begin with the state’s argument that “[b]ecause
    Walker cannot show that he is not a habitual offender, he can-
    not demonstrate either deficient performance or prejudice.”
    The state contends that the Indiana superior court reasonably
    applied federal law when it required Walker to make such a
    showing. The superior court found that to show prejudice
    (from trial or appellate counsel’s performance), Walker “must
    demonstrate that he was not a habitual offender” and that
    “his various convictions did not in fact occur in the required
    order.” Walker v. State, 46D01-1207-PC-211 at 6 (Ind. Sup. Ct.
    Jul. 25, 2012) (quoting Weatherford v. State, 
    619 N.E.2d 915
    , 918
    (Ind. 1993)).
    Placing the burden on a defendant to prove that his argu-
    ment would prevail is in considerable tension with Strick-
    land’s rule, under which the defendant must show only that
    there is a reasonable probability of a different result. As the
    Supreme Court put it there, “a defendant need not show that
    No. 15-2147                                                   7
    counsel’s deficient conduct more likely than not altered the
    outcome in the case.” 
    466 U.S. at 693
    . Instead, “the defendant
    must show that there is a reasonable probability that, but for
    counsel’s unprofessional errors, the result of the proceeding
    would have been different. A reasonable probability is a prob-
    ability sufficient to undermine confidence in the outcome.” 
    Id. at 694
    . Applying that standard here, we see that Walker
    needed only to show that absent counsel’s error he would
    have had a reasonable shot at acquittal on the habitual-of-
    fender charge. We therefore assume for present purposes that
    Walker did not have the burden to demonstrate conclusively
    that he is not in fact a habitual offender.
    2
    By the time the Indiana Court of Appeals considered
    Walker’s post-conviction petition, Pagos had died. The court
    thus had to reconstruct what his appeal strategy may have
    been without the aid of his testimony. Appellate ineffective-
    assistance claims require the reviewing court to look at the is-
    sue that appellate counsel failed to raise, and determine
    whether that issue was “obvious and clearly stronger” than
    issues that appellate counsel did raise. Sanders v. Cotton, 
    398 F.3d 572
    , 585 (7th Cir. 2005).
    The state appellate court reasoned that because Pagos
    raised a sentencing claim on Walker’s behalf, he must have
    become familiar with Walker’s criminal history. That in turn
    mean that Pagos must have known that Walker had enough
    prior convictions to satisfy the state’s habitual-offender stat-
    ute. The absence from the record of the date on which he com-
    mitted the 1989 burglary, the court thought, was “not signifi-
    cant and obvious.” Walker II, 988 N.E.2d at 1191. There is some
    8                                                   No. 15-2147
    tension in the court’s finding both that Pagos must have re-
    viewed Walker’s criminal history and sentencing in detail,
    and that he must have missed the absence of a key piece of
    evidence in the state’s case. The former suggests an inten-
    tional strategy, and the latter negligence. But that tension does
    not render the state court’s conclusion an unreasonable appli-
    cation of clearly established federal law. It is plausible that
    Pagos declined to raise the issue because he believed there
    was no point in doing so. The Court of Appeals would simply
    have affirmed based on the evidence from which the commis-
    sion date could be inferred, or reopened the case for the state
    to supply the missing documentation. It is also plausible that
    he did not raise the issue because it was not obvious, and he
    raised other issues that he considered more promising. We
    find nothing unreasonable, in the sense that AEDPA uses the
    term, in the state appellate court’s assessment of Pagos’s per-
    formance.
    3
    That leaves the question of prejudice. On this point,
    Walker’s argument begins badly by relying on outdated Indi-
    ana law for the proposition that the omission of the key date
    would have required the state appellate court to reverse the
    habitual-offender finding outright. The state counters that by
    the time of Walker’s direct appeal in 2007, the proper re-
    sponse to the deficiency in the record would have been for the
    state appellate court to remand to allow the prosecutor to sup-
    ply the missing evidence.
    Walker cites Steelman v. State, 
    486 N.E.2d 523
     (Ind. 1985),
    for the proposition that the state court would vacate the ha-
    bitual-offender finding because of a lack of proof of the com-
    No. 15-2147                                                   9
    mission date of the 1989 burglary. But since that time the In-
    diana Supreme Court has declined to vacate a habitual-of-
    fender sentence—in fact it declined even to remand to add the
    commission date—where a defendant was found to be a ha-
    bitual offender on a record that lacked evidence of the com-
    mission date of one of the prior felonies. Burnett v. State, 
    736 N.E.2d 259
    , 262 (Ind. 2000) (“Although the better practice is to
    offer direct evidence of the commission date of the second of-
    fense, a reasonable jury could have concluded that Burnett
    committed his second felony after receiving his sentence for
    the first” where there was a gap of almost eight years between
    the sentencing for the first offense and the arrest date for the
    second offense), overruled on other grounds by Ludy v. State,
    
    784 N.E.2d 459
     (Ind. 2003); see also Clark v. State, 
    597 N.E.2d 4
    , 12 (Ind. Ct. App. 1992) (inclusion of arrest and sentencing
    dates “amply meets the requirement” of proving sequence of
    prior felonies). Although the state seemed to concede at oral
    argument that an inference about sequence would be insuffi-
    cient under Indiana law—a point in Walker’s favor—Clark
    and Burnett indicate otherwise.
    On this record, the inference that the sequence of offenses
    met the criteria of the habitual-offender statute is strong. The
    state introduced evidence that Walker committed the 1980
    robbery on February 4, 1980, was convicted of it on June 27,
    1980, and sentenced on July 25, 1980. It introduced evidence
    that Walker was charged with the 1989 burglary on March 31,
    1989, convicted on June 30, 1989, and sentenced on July 28,
    1989. As in Burnett, the long gap between the arrest date for
    the 1989 burglary and the sentencing date for the 1980 rob-
    bery—nine years—leaves little doubt that the burglary oc-
    curred after the robbery and Walker’s subsequent sentencing.
    It is unlikely that, had Pagos raised the issue of the missing
    10                                                  No. 15-2147
    commission date, the state court would have given Walker a
    new trial. The court might not even have deemed it necessary
    to reopen the case for admission of evidence.
    Second, Walker’s argument rests on a misunderstanding
    of double jeopardy law. He asserts that in a habitual-offender
    case, the sequence of felonies is a fact that must be found by a
    jury, and therefore that it would violate the Double Jeopardy
    Clause to remand for retrial. See U.S. CONST., amend. V (dou-
    ble jeopardy clause); Benton v. Maryland, 
    395 U.S. 784
    , 794
    (1969) (applying the Double Jeopardy Clause to the states via
    the Fourteenth Amendment). It is true that double jeopardy
    precludes the state from re-trying a case that is reversed based
    on insufficiency of the evidence to prove the crime. Burks v.
    United States, 
    437 U.S. 1
    , 17–18 (1978). But a conviction for a
    crime is different from a jury finding that a defendant is a ha-
    bitual offender. United States v. Monge, 
    524 U.S. 721
     (1998),
    holds that the Double Jeopardy Clause does not preclude re-
    trial of sentencing issues in noncapital cases. Following
    Monge, the Indiana Supreme Court stated in 2005 that earlier
    Indiana court decisions barring re-trial of habitual-offender
    status findings that had been set aside on appeal for insuffi-
    cient evidence were no longer good law. Jaramillo v. State, 
    823 N.E.2d 1187
    , 1191 (Ind. 2005); see also Dexter v. State, 
    959 N.E.2d 235
    , 240 (Ind. 2012).
    Walker argues that the fact of a prior conviction, which the
    Supreme Court held need not be found by a jury in Al-
    mendarez-Torres v. United States, 
    523 U.S. 224
     (1998), is differ-
    ent from the sequence of prior convictions. We do not see why.
    Double jeopardy would not have barred the Indiana Court of
    Appeals from remanding his case to introduce the commis-
    sion date of the 1989 burglary. See Monge, 
    524 U.S. 721
    .
    No. 15-2147                                                11
    Walker’s conjectural argument—that, had Pagos raised the
    habitual-offender sequencing issue and the Court of Appeals
    remanded to the trial court, the prosecutor might have de-
    clined to re-try it, or Walker might have put on a better de-
    fense—is not strong enough to demonstrate a “reasonable
    shot” at a different outcome. There was no prejudice from Pa-
    gos’s failure to raise the issue.
    III
    Because Walker cannot demonstrate that the Indiana
    Court of Appeals rendered a decision that constituted an un-
    reasonable application of federal law in finding adequate per-
    formance by his appellate counsel, and because Walker was
    not prejudiced by any misstep counsel may have made, we
    AFFIRM the judgment of the district court.