Michael D. Overstree v. Bill Wilson

686 F.3d 404, 2012 WL 2819296, 2012 U.S. App. LEXIS 14106
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 11, 2012
Docket11-2276
StatusPublished
Cited by15 cases

This text of 686 F.3d 404 (Michael D. Overstree v. Bill Wilson) 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
Michael D. Overstree v. Bill Wilson, 686 F.3d 404, 2012 WL 2819296, 2012 U.S. App. LEXIS 14106 (7th Cir. 2012).

Opinions

EASTERBROOK, Chief Judge.

A jury concluded that Michael Over-street kidnapped, raped, and murdered Kelly Eckart. The jury recommended that he be executed for these offenses, and the state judge imposed a death sentence. The Supreme Court of Indiana affirmed Overstreet’s convictions and sentence, 783 N.E.2d 1140 (2003), and affirmed an order denying his petition for post-conviction relief, 877 N.E.2d 144 (2007). The only issues in this collateral attack under 28 U.S.C. § 2254 concern the penalty. The district court denied Overstreet’s petition. 2011 WL 836800, 2011 U.S. Dist. Lexis 22175 (N.D.Ind. Mar. 4, 2011).

Overstreet contends that during the penalty proceedings his lawyers made three errors that individually or collectively amount to ineffective assistance. One supposed error is that counsel did not ask the trial judge to require spectators who wore buttons or ribbons with Eekart’s picture to remove the displays of sympathy for the victim. Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006), shows that defendants did not have any constitutional right to such a removal order at the time of Overstreet’s trial and appeal — and no decision since Carey has created such an entitlement, let alone held that it would apply retroactively. Indiana law could give defendants greater protection than the Constitution does of its own force, and counsel who failed to ensure that defendants received all of their state-law rights might fail the performance element of the ineffective-assistance standard, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but Overstreet does not cite any statute, rule, or decision establishing that Indiana entitles defendants to trial in a courtroom free of symbols implying support for the victim. No juror could have doubted that Eckart had friends and family who mourned her death. That’s the message the pictures conveyed, and in the post-conviction proceedings the state trial judge found that Overstreet had not established prejudice.

His second contention is that his lawyers failed to convey “effectively” or “meaningfully” the prosecutor’s offer of a plea bargain. Overstreet contends that the prosecutor orally proposed a sentence of life in prison without possibility of parole. Missouri v. Frye, — U.S.-, 132 S.Ct. 1399, 1408-10, 182 L.Ed.2d 379 (2012), holds that failure to communicate a plea offer to the defendant is deficient performance. Overstreet’s lawyers did relay the offer to him, and he turned it down. He contends, however, that the communication was not effective because he was having a psychotic “break” at the time and could not appreciate the offer’s significance. Frye does not consider whether counsel furnish ineffective assistance by [407]*407failing to convey a plea offer “effectively”; we assume without deciding that counsel must do so. Similarly, Frye does not discuss the proper treatment of oral offers (the Court stressed that the offer to Frye was a writing that contained all material terms); we assume, again without deciding, that counsel’s duty to communicate potential bargains to their clients covers oral offers before they are term-complete.

Overstreet has mental problems. The psychiatric evidence in the record leaves little doubt that on some occasions Over-street would have lacked the ability to evaluate his legal situation rationally. The evidence is mixed about Overstreet’s mental state at the time his lawyers presented the offer for his consideration. See 2011 WL 836800 at *7-10, 2011 U.S. Dist. Lexis 22175 at *21-26. The district judge concluded that Overstreet understood the offer and discussed it intelligently with his sister; Overstreet says that the judge was mistaken, but we need not decide. After conducting a six-day hearing on Over-street’s request for collateral relief, the judge who had conducted Overstreet’s trial and imposed the death sentence issued a lengthy opinion denying his petition. The judge stated at page 82 of her decision that any shortcoming by counsel did not cause prejudice because, if Overstreet had attempted to plead guilty before trial, she would have rejected the plea. Frye holds that, to show prejudice from counsel’s failure to convey a plea offer, “defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.” 132 S.Ct. at 1410. Here we have a finding, by the trial judge herself, that she would not have accepted a guilty plea.

The due process clause permits judges to accept guilty pleas from defendants who do not admit the factual basis of the charge against them, when the judge nonetheless has an adequate basis for finding that the defendant committed the crime. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). But the Court added that states are not required to accept such pleas, id. at 38 & n. 11, 91 S.Ct. 160, and Indiana has chosen to forbid Alford pleas. See Carter v. State, 739 N.E.2d 126, 128-29 (Ind. 2000). A defendant who wants to plead guilty in Indiana must admit the factual basis of the plea in open court. Overstreet denies having any memory of the night when Eckart was killed and said repeatedly — to his lawyers and to the trial judge— that he could not plead guilty when he did not know himself to be guilty. This is why the state judge declared that she would not have accepted a guilty plea had Over-street attempted to enter one.

He contends that Carter allows a judge in Indiana to accept a guilty plea from an amnesiac; according to Over-street, Indiana blocks Alford pleas only when the defendant affirmatively denies culpability. But a writ under § 2254 cannot be based on a federal court’s belief that the state judiciary misunderstands state law. See, e.g., Wilson v. Corcoran, — U.S.-, 131 S.Ct. 13, 178 L.Ed.2d 276 (2010). The state trial judge has told us what she would have done, and why, had Overstreet attempted to plead guilty; given Frye’s definition of prejudice, that finding is dispositive.

Oversteet’s third line of argument is that his lawyers fell short when presenting mitigating evidence during the sentencing hearing. Given 28 U.S.C. [408]*408§ 2254(d), this is an uphill battle. See, e.g., Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1401-11, 179 L.Ed.2d 557 (2011); Harrington v. Richter, — U.S. -, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Wood v. Allen, 558 U.S. 290, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010); Wong v. Belmontes, 558 U.S. 15, 130 S.Ct. 383, 175 L.Ed.2d 328 (2009). The Supreme Court of Indiana did not contradict any law established by the Supreme Court; it cited Strickland and accurately summarized its holding.

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Cite This Page — Counsel Stack

Bluebook (online)
686 F.3d 404, 2012 WL 2819296, 2012 U.S. App. LEXIS 14106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-d-overstree-v-bill-wilson-ca7-2012.