Clarence Hayes v. Deirdre Battaglia, Warden, Stateville Correctional Center

403 F.3d 935, 2005 U.S. App. LEXIS 6072, 2005 WL 844955
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 13, 2005
Docket03-3074
StatusPublished
Cited by140 cases

This text of 403 F.3d 935 (Clarence Hayes v. Deirdre Battaglia, Warden, Stateville Correctional Center) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clarence Hayes v. Deirdre Battaglia, Warden, Stateville Correctional Center, 403 F.3d 935, 2005 U.S. App. LEXIS 6072, 2005 WL 844955 (7th Cir. 2005).

Opinions

EASTERBROOK, Circuit Judge.

In this collateral attack under 28 U.S.C. § 2254, Clarence Hayes, serving a life sentence for murder, contends that his lawyer during the state proceedings furnished ineffective assistance. He also contends that the state courts made several errors that justify relief. The district court held that the ineffective-assistance claim had been defaulted when Hayes failed to present it to the state’s appellate courts, either on direct appeal or on collateral review, that Hayes is not entitled to relief from that forfeiture, and that the other events of which he complains, if errors at all, were harmless. Hayes v. Carter, 2003 WL 21212598, 2003 U.S. Dist. Lexis 8650 (N.D.Ill. May 22, 2003).

After church one Sunday, Ronald and Marion Nelson, their son Roger, and Roger’s fiancée Sandra Wissink walked across the street toward their cars, parked in the church’s lot. They were intercepted by a man with a gun, who ordered all four into Ronald Nelson’s car and robbed them of their valuables. Five minutes later Donna Van Zanten (the pastor’s wife) and her son [937]*937Kent emerged from the church and made for the parking lot. The robber set upon them too. After another five minutes or so the robber left — but not before shooting Ronald, who died from the wound. Four of the five survivors, who had seen the assailant in broad daylight at close quarters for between five and ten minutes, identified Hayes in a lineup and at trial. (Marion Nelson did not testify; the papers filed in this court do not reveal why.) As he left, the robber (still clutching the women’s purses) encountered Larry Stewart and Harold Smith, who had heard the gunshot. The fleeing man said to them, as he passed, ‘You brothers, you be cool because you know them was honkies over there.” Stewart and Smith, who heard Roger shout that the man on the run had just “shot my Dad,” were not “cool”; they identified Hayes at a lineup and again at trial. That made six eyewitnesses — five, if one discounts for the fact that Smith did not pick Hayes out of a photo array until being coached by Stewart. The jury evidently found their testimony convincing.

Hayes says that his lawyer butchered the defense by failing to call as alibi witnesses six of Hayes’s relatives who would have testified that he had been home watching a basketball game when the crime was committed. We don’t know why the lawyer decided not to call these witnesses, because Hayes failed to develop this subject. He raised the subject in the circuit court on collateral review but did not supply details (such as affidavits from his relatives and his former lawyer), and then did not mention it on appeal. Instead he argued that his post-conviction counsel in the circuit court had been ineffective (a contention now abandoned). That kind of procedural default blocks federal review; indeed, even if Hayes had presented the point to the appellate court it still would have been forfeited by omission from a request for review by the Supreme Court of Illinois. See O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

In his opening brief in this court, Hayes contended that Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), relieves him from that default. It does nothing of the kind. Massaro holds that a defendant in a federal criminal prosecution need not raise a claim of ineffective-assistance on direct appeal but always may reserve it for a collateral proceeding under 28 U.S.C. § 2255. This is a rule of practice for federal judges in federal criminal cases and does not change the relation between state and federal courts. See Gomez v. Jaimet, 350 F.3d 673, 678 (7th Cir.2003); Sweet v. Bennett, 353 F.3d 135, 140-41 (2d Cir.2003). What is more, even if Massaro were to be applied to proceedings under § 2254, it would not permit the defendant to omit the ineffective-assistance claim from both direct and collateral review in state pourt.

This case '’shows why. By withholding the contention from the state judiciary, Hayes not only deprived it of an opportunity to address the claim (and repair any problem) but also left us with an essentially empty record. We have his allegations but none of the details from the potential witnesses and from his former lawyer that could have put these allegations to the test. Because the shortfall is Hayes’s fault, he could not receive a federal evidentiary hearing under 28 U.S.C. § 2254(e). For all we can tell, Hayes asked his trial lawyer not to call the alibi witnesses. Or maybe after interviewing the witnesses counsel concluded that the jurors would see through a story that evinced family solidarity but lacked the ring of truth. Cf. Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986) (sixth amendment does not require counsel to present false exculpatory testimony). Maybe a full record would vindi[938]*938cate Hayes’s -position that counsel was sleepwalking, but a full record is exactly what we lack — and we lack it because of Hayes’s own litigation choices. See Howard v. O’Sullivan, 185 F.3d 721, 724-26 (7th Cir.1999); Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir.1997).

This conclusion, which Hayes essentially conceded by the time of his reply brief, drives him to contend that the default should be excused to avoid a “fundamental miscarriage of justice” — which is to say, the conviction of an innocent person. Factual innocence indeed relieves a petitioner of a procedural default, at least when the error affects the finding of guilt, as opposed to a non-capital sentence. Compare 28 U.S.C. § 2254(e)(2)(B) and Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), with Dretke v. Haley, 541 U.S. 386, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004). Yet how could we conclude, in the statutory language, that “the facts underlying the claim ... establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense”? Suppose that the six alibi witnesses had been called. That would at best have produced a draw: six eyewitnesses identify Hayes as the culprit, six others exculpate him.

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Bluebook (online)
403 F.3d 935, 2005 U.S. App. LEXIS 6072, 2005 WL 844955, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarence-hayes-v-deirdre-battaglia-warden-stateville-correctional-center-ca7-2005.