Richardson v. Lemke

745 F.3d 258

Floyd RICHARDSON, Petitioner–Appellee/Cross–Appellant,

v.Michael LEMKE, Respondent–Appellant/Cross–Appellee.

Nos. 12–1619, 12–1747.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 30, 2013.

Decided March 11, 2014.

Rehearing and Rehearing En Banc Denied May 15, 2014.

Joshua Sachs, Law Office of Joshua Sachs & Associates, Evanston, IL, for Petitioner–Appellee.

Joshua M. Schneider, Office of the Attorney General, Chicago, IL, for Respondent–Appellant.

Before WOOD, Chief Judge, and BAUER and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Before us is a petition for a writ of habeas corpus, filed by Floyd Richardson, a convicted murderer. It is the second time his case has come before this court. The district court granted Richardson's petition on Batson grounds, a decision which the State of Illinois appeals. Richardson, in turn, appeals the district court's denial of his evidentiary/due process and ineffective assistance of counsel claims. We reverse in part and affirm in part. First, we reverse the district court's grant of habeas relief on Batson grounds. Richardson procedurally defaulted a challenge to the prosecution's use of peremptories by failing to contemporaneously object, and he has not shown cause to excuse that default. Our review is foreclosed. Next, we affirm the district court's treatment of the remaining two claims. Richardson's petition is denied.

I. Background

In 1984, Floyd Richardson was convicted of armed robbery and murder. During his jury trial, the State of Illinois presented ballistics evidence and identification testimony tying Richardson to a pair of shootings that took place at South Side businesses in April 1980. A Chicago Police Department firearms examiner testified that rounds fired at both scenes came from the same gun, and eyewitnesses from both scenes identified Richardson as the gunman. That was enough to persuade the jury to convict, and the trial court sentenced Richardson to death.¹ We discussed Richardson's trial and sentencing hearing in detail in our previous opinion in this case, see Richardson v. Briley, 401 F.3d 794, 795–98 (7th Cir.2005), and here we address only those facts that are pertinent to the claims presently at issue.

We begin by surveying the factual and procedural history of Richardson's Batson claim, which was the basis for the district court's grant of a writ of habeas corpus and which is the subject of the State's appeal. We then provide the background to Richardson's “other crimes evidence” and ineffective-assistance-at-sentencing claims, which were denied by the district court and which are the subject of Richardson's cross-appeal.

A. Jury Selection and Related Assistance–of–Counsel Issues

The first issue—and the subject of the State's appeal—is Richardson's challenge to the State's use of peremptory strikes. Richardson's jury was selected in panels of four. The trial judge conducted voir dire and did not allow the parties to question the members of the venire. In all, sixty-one persons were questioned during jury selection. The trial judge excused twenty-four for cause. Richardson used twenty peremptory challenges, and the State used sixteen. Richardson did not object to the State's use of peremptories at trial.

1. State Appellate and Postconviction Proceedings

After sentencing, Richardson appealed to the Illinois Supreme Court. While his appeal was pending, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Nonetheless, Richardson again failed to make an issue of the State's use of peremptories. The Illinois Supreme Court affirmed his conviction and sentence without addressing any jury selection issues. People v. Richardson, 123 Ill.2d 322, 123 Ill.Dec. 908, 528 N.E.2d 612 (1988). His petitions for rehearing and for a writ of certiorari were denied.

In 1991, Richardson filed a petition for postconviction relief in state court. It was at this point, seven years after his trial concluded, that his Batson claim first appeared. He also attacked both trial and appellate counsel as constitutionally ineffective for their failure to raise the issue sooner. The State moved to dismiss the petition. The trial court found that the Batson claim was waived under existing Illinois law as a result of Richardson's failure to object to the State's use of peremptories at trial. Nonetheless, the court went on to consider the claim on the merits, in part because of its connection to the ineffective assistance issues.

In considering Richardson's Batson claim, the trial court reviewed the pleadings, the associated exhibits, and the record available to it, but did not hold an evidentiary hearing or allow for any expansion of the record. This procedure was based on the Illinois Postconviction Hearing Act, which permitted “summary dismissal” of a “nonmeritorious petition” based on a review of the petitioner's submissions and existing record materials. People v. Mahaffey, 165 Ill.2d 445, 209 Ill.Dec. 246, 651 N.E.2d 174, 179 (1995).

On the record before it, the trial court found that thirteen of the sixteen jurors peremptorily excluded by the prosecution were black, but that the race of the other three stricken jurors was unclear. It further found that the record did not show what percentage of the venire members not challenged for cause were black, but that, of the fourteen jurors and alternates actually seated, eight were white and three were black, with the race of the other three unknown. The trial court also considered that fifteen of the sixteen stricken jurors shared a non-suspect common characteristic in that none had ever been the victim of a crime. It concluded—relying in significant part on the inadequacy of the existing record—that Richardson had not made out a prima facie case that the strikes were used in a discriminatory manner. It also found that neither trial counsel nor appellate counsel was constitutionally ineffective. Richardson's petition was dismissed.

Richardson appealed. The Illinois Supreme Court found that his Batson claim was waived, and declined to review it on the merits. People v. Richardson, 189 Ill.2d 401, 245 Ill.Dec. 109, 727 N.E.2d 362, 368–69 (2000). In doing so, first, the court correctly observed that Batson was at least theoretically available to Richardson, because it was decided while his case was pending on direct review. Id. at 368 (citing Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987)). But the court then relied on a series of Illinois cases managing the retroactive preservation of Batson claims to find waiver:

However, Batson requires “a defendant's timely objection to a prosecutor's challenges.” (Emphasis added.) Batson, 476 U.S. at 99 [106 S.Ct. 1712]. A defendant who fails to raise a Batson objection before the jury is sworn waives the issue. People v. Fair [159 Ill.2d 51, 201 Ill.Dec. 23], 636 N.E.2d 455 (Ill.1994). This rule applied under the old rule of Swain ( e.g., People v. Gaines [88 Ill.2d 342, 58 Ill.Dec. 795], 430 N.E.2d 1046 (Ill.1981)) and applies to cases pending on appeal when Batson was decided ( e.g., People v. Evans [125 Ill.2d 50, 125 Ill.Dec. 790], 530 N.E.2d 1360 (Ill.1988); accord People v. Holder [153 Ill.App.3d 884, 106 Ill.Dec. 700], 506 N.E.2d 407 (Ill.1987)). Thus, a defendant who failed to object to the prosecution's use of peremptory challenges under the old rule of Swain cannot receive on appeal the benefit of the new rule announced in Batson.People v. Pecor [153 Ill.2d 109, 180 Ill.Dec. 50], 606 N.E.2d 1127 (Ill.1992); accord Teague v. Lane, 489 U.S. 288, 297 [109 S.Ct. 1060, 103 L.Ed.2d 334] (1989) (under Illinois law, failure to raise Swain claim at trial and on direct review waives Batson-type claim in state post-conviction proceeding).

In this case, defendant concedes, as our review of the record confirms, that his trial counsel did not object during voir dire to the prosecution's use of its peremptory challenges or include this issue in the post-trial motion. We note that while defendant's direct appeal was being briefed, this court remanded several pending cases to trial courts for Batson hearings, where the Batson issue was timely raised at trial. People v. Hooper [118 Ill.2d 244, 107 Ill.Dec. 250], 506 N.E.2d 1305 (Ill.1987) (Ryan, J., concurring) (describing court as remanding “all cases on review in which the Batson issue is viable” to circuit courts for Batson hearings); see, e.g., Evans , 530 N.E.2d 1360. Defendant has waived this claim.

Richardson, 245 Ill.Dec. 109, 727 N.E.2d at 368–69 (internal citations reformatted for clarity). The United States Supreme Court again denied certiorari. Richardson v. Illinois, 531 U.S. 871, 121 S.Ct. 170, 148 L.Ed.2d 116 (2000).

The Illinois Supreme Court also considered Richardson's ineffective assistance claim. Richardson explicitly abandoned his claim that trial counsel was ineffective for failing to raise a Batson objection, see245 Ill.Dec. 109, 727 N.E.2d at 369, but continued to maintain that appellate counsel was ineffective for the same reason. The court disagreed, finding that appellate counsel could not be considered constitutionally ineffective for failing to argue a waived claim. 245 Ill.Dec. 109, 727 N.E.2d at 369–70.

2. Federal Proceedings

Richardson's next move, in 2000, was to file in federal court seeking a writ of habeas corpus on various grounds, including the Batson claim he unsuccessfully asserted in state postconviction proceedings. The district court conducted an evidentiary hearing and granted habeas relief on the grounds that the prosecution deceived Richardson into neglecting to call an exculpatory witness. On appeal, we reversed. Richardson v. Briley, 401 F.3d 794. We found that Richardson was not prejudiced by the prosecutor's alleged misconduct, and remanded for further proceedings on the unresolved claims. Id. at 803.

The district court turned to the Batson claim on remand. Richardson v. McCann, 653 F.Supp.2d...