Johnson v. Boyd

6 F. App'x 361
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 29, 2001
DocketNo. 00-2892
StatusPublished

This text of 6 F. App'x 361 (Johnson v. Boyd) 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
Johnson v. Boyd, 6 F. App'x 361 (7th Cir. 2001).

Opinion

ORDER

During jury selection at Kurt Johnson’s state murder trial, the court, with coun[362]*362sel’s consent, conducted portions of the voir dire process in the hallway. Johnson was not present at the time, nor did he personally agree to this procedure. He now contends that his exclusion from portions of voir dire violated his due process rights and that he is entitled to a new trial. Furthermore, he claims that trial counsel’s failure to object to the unconventional voir dire procedure, and appellate counsel’s failure to raise the issue on direct appeal, violated his Sixth Amendment rights. We affirm the district court judgment denying Johnson collateral relief. We also deny Johnson’s request to expand the district court’s certificate of appealability.

In 1993, Johnson shot and killed Michael Beshoar, the new boyfriend of Johnson’s former girlfriend. The only issue at trial was Johnson’s intent: he claimed self defense, but the jury convicted him of first-degree murder. The Will County, Illinois, circuit court sentenced him to 38 years in prison.

Johnson’s trial judge habitually engaged in the practice of questioning potential jurors who revealed a possible basis for a cause challenge in the hallway outside his courtroom and outside the presence of defendants. Johnson’s attorney expressly consented to this procedure, noting that it avoided the possibility of tainting the entire venire with prejudicial information possessed by a single candidate. Johnson himself was not present in the hallway for the questioning, nor was he advised that he had a right to be present, nor did he specifically indicate that he was consenting to this procedure. In the end, three members of the eventual jury that sat in his case had been subjected to this form of in camera questioning, and Johnson claims that, had he known what was said, he would have asked his lawyer to challenge at least two (Jurors Norberg and Henegar) for cause. Johnson’s conviction was affirmed on direct appeal.

We will coin the phrase “hallway voir dire” to describe what happened, as that is what the parties have called it (even though we have not been able to locate other published decisions that use this terminology). On post-conviction review, the Illinois Court of Appeals held that Johnson’s hallway voir dire claim was waived because he did not raise it on direct appeal. It noted further that counsel’s express acquiescence to hallway voir dire reflected a legitimate strategic goal— namely, to avoid prejudicing the jury venire when individual potential jurors admitted to prior knowledge of the case from pretrial publicity — and, for this reason, Johnson could not show ineffective assistance. Reviewing Johnson’s petition for federal habeas corpus relief under 28 U.S.C. § 2254, the district court concluded that Johnson procedurally defaulted his hallway voir dire claim and that the state court’s judgment regarding the ineffective assistance claim was not contrary to, or an unreasonable application of, federal law. It accordingly denied Johnson’s petition. The district court did, however, grant Johnson a certificate of appealability limited to his ineffective assistance of counsel claim.

In order to decide whether the district court correctly rejected Johnson’s claim of ineffective assistance of counsel, we must first consider the underlying defects in counsel’s performance about which Johnson is complaining. Everyone agrees that Johnson’s trial counsel said that he was waiving Johnson’s right to be present during the portions of voir dire that took place in the hallway. The question, therefore, is whether a defendant’s right to be present during the entire voir dire is, as Johnson argues, one of the small number of personal rights that the defendant himself must knowingly and explicitly waive, or if on the other hand it is a right that counsel is [363]*363entitled to waive on the defendant’s behalf. The Supreme Court has thus far identified only four personal rights that a defendant has the exclusive authority to waive: the right to a trial, the right to a jury, the right to testify, and the right to represent oneself. Jones v. Barnes, 468 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). With respect to many other rights, whether constitutional or statutory, the Court has held that “waiver may be effected by action of counsel.” New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000).

In United States v. Boyd, 86 F.3d 719 (7th Cir.1996), this court firmly placed “[djecisions on selection of a jury ... among the many entrusted to counsel rather than to defendants personally.” Id. at 723; see also United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (holding that the Due Process Clause does not entitle a defendant personally to attend a conference with a juror who was concerned about the defendant’s sketching a picture of him; counsel’s presence was sufficient). The federal appeals courts that have addressed the issue of counsel’s acquiescence to conducting portions of jury voir dire outside a defendant’s presence take a consistent position. These courts have held that counsel’s acquiescence forfeits any objection to that process. See United States v. Rolle, 204 F.3d 133, 138 (4th Cir.2000); United States v. Gibbs, 182 F.3d 408, 437 (6th Cir.1999) (“No objection was registered with respect to the exercise of peremptory challenges in the jury room in the absence of the defendants, however, and we therefore review this issue for plain error.”); United States v. Tipton, 90 F.3d 861, 874 (4th Cir.1996); United States v. Dioguardi 428 F.2d 1033, 1039 (2d Cir.1970).

Johnson urges us to find that “critical stage” analysis requires a different result, but we disagree. As noted by the district court, critical stage analysis pertains to when a defendant is entitled to the assistance of counsel and not to whether the right protected by counsel is personal to the defendant. Johnson indisputably was entitled to counsel during voir dire and in fact was represented by counsel at that stage in his criminal proceedings.

For these reasons, we conclude that Johnson’s attorney had the power to waive Johnson’s presence during portions of voir dire, and, as we have already noted, it is undisputed that counsel did so. Returning to the issue on which the certificate of appealability was granted, we conclude that Johnson has not shown a Sixth Amendment violation under these circumstances. First, counsel was doing nothing outside the permissible scope of his responsibility. Second, as the state court reasonably found, Johnson did not establish deficient performance by counsel because counsel’s decision was strategic — he wanted to avoid the possibility of a single potential juror’s prejudicial knowledge tainting the entire venire. United States v. Pergler,

Related

Jones v. Barnes
463 U.S. 745 (Supreme Court, 1983)
United States v. Gagnon
470 U.S. 522 (Supreme Court, 1985)
New York v. Hill
528 U.S. 110 (Supreme Court, 2000)
United States v. Eric Boyd
86 F.3d 719 (Seventh Circuit, 1996)
United States v. Troy Rolle, A/K/A Robert Stan Marks
204 F.3d 133 (Fourth Circuit, 2000)
United States v. Richard Pergler
233 F.3d 1005 (Seventh Circuit, 2000)
People v. Bennett
669 N.E.2d 717 (Appellate Court of Illinois, 1996)
People v. Starks
679 N.E.2d 764 (Appellate Court of Illinois, 1997)
United States v. Tipton
90 F.3d 861 (Fourth Circuit, 1996)
United States v. Gibbs
182 F.3d 408 (Sixth Circuit, 1999)

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Bluebook (online)
6 F. App'x 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-boyd-ca7-2001.