Robert Prihoda v. Gary R. McCaughtry Warden, Waupun Correctional Institution

910 F.2d 1379, 1990 U.S. App. LEXIS 14074, 1990 WL 116196
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 14, 1990
Docket89-3479
StatusPublished
Cited by149 cases

This text of 910 F.2d 1379 (Robert Prihoda v. Gary R. McCaughtry Warden, Waupun Correctional Institution) 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
Robert Prihoda v. Gary R. McCaughtry Warden, Waupun Correctional Institution, 910 F.2d 1379, 1990 U.S. App. LEXIS 14074, 1990 WL 116196 (7th Cir. 1990).

Opinions

EASTERBROOK, Circuit Judge.

Patrick Rogers assembled a team to rob Bryant’s Cocktail Lounge in Milwaukee. He recruited Robert Cranmore, Brian Rolf, and Robert Prihoda to do the job, and his girlfriend agreed to drive the getaway car. All four armed themselves, and in the early morning hours of August 17, 1975, they burst into the bar. Rogers and Rolf commandeered the lounge on the first floor; Cranmore and Prihoda were assigned to the bar on the second floor. All four terrorized the bartenders and patrons by brandishing weapons and threatening immediate death to all who did not hand over their valuables.

Gerald Drefahl and Dennis O’Bradovich, two off-duty policemen, were on the first floor when the robbers entered. O’Brado-vich was accompanied by his fiancée, celebrating their engagement. All three prostrated themselves as the gunmen demanded. O’Bradovich surreptitiously drew his revolver and, thinking that he was sheltered by the bar, demanded that the intruders surrender. A gun battle ensued. O’Bradovich retreated into the vestibule. Cranmore and Prihoda charged down the stairs, guns blazing. Cranmore got an angle on O’Bradovich and put a bullet through his head. Four desperadoes pumped ten slugs into O’Bradovich. He never regained consciousness. Other officers, alerted by a silent alarm, appeared as the robbers emerged from the tavern. Rolf gave up; Rogers was shot as he fled. Cranmore and Prihoda got away but were tracked down within hours. All four were convicted of first degree murder and armed robbery, and each was sentenced to life imprisonment.

Rogers, Rolf, and Cranmore appealed, and the court of appeals affirmed in an exhaustive opinion. Cranmore v. State, 85 Wis.2d 722, 271 N.W.2d 402 (1978). Priho-da escaped from prison, so the court did not consider his appeal. After being recaptured, Prihoda filed in 1980 an application for collateral relief. The only ground given was that pattern jury instruction 1100, which had been given at the trial, shifted to the defendants the burden of showing that they did not intend O’Bradovich’s death. The other three defendants made this argument on direct appeal and lost, 85 Wis.2d at 770-71, 271 N.W.2d 402, so it is no surprise that Prihoda lost too.

He tried again in 1985, this time raising a battery of arguments, including challenges to the adequacy of his counsel at trial and the voluntariness of his plea of guilty to the charge of armed robbery. He lost again, this time on the basis of Wis.Stat. § 974.06(4), which provides:

All grounds for relief available to a prisoner ... must be raised in his original, supplemental or amended motion [for collateral relief]. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the prisoner has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.

Prihoda, represented by counsel in 1985, argued that lack of legal assistance in 1980 was a “sufficient reason” for a second motion despite failure to raise all grounds in the first. The court of appeals disagreed and rejected the petition without reaching the merits. The Supreme Court of Wiscon[1382]*1382sin denied review without opinion, 134 Wis.2d 458, 401 N.W.2d 10 (1987). Priho-da’s petition in federal court under 28 U.S.C. § 2254 failed largely because of the state court’s invocation of a procedural ground. The district judge held that Priho-da has not established “cause” for the forfeiture in state court. Although Prihoda preserved his challenge to instruction 1100, three opinions of this court hold that this instruction is not unconstitutional. Pigee v. Israel, 670 F.2d 690 (7th Cir.1982); Dean v. Young, 777 F.2d 1239 (7th Cir.1985); Fencl v. Abrahamson, 841 F.2d 760 (7th Cir.1988). Pigee, Dean, and Fencl did not leave much room for Prihoda to maneuver, so the district court dismissed his petition.

I

Prihoda asks us to overrule Pigee, Dean, and Fencl, but it would do him no good if we did. See Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Prihoda’s constitutional argument stems from Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), which was decided two years after his conviction became final. Pigee, Dean, and Fencl show that “a state court considering [Prihoda’s] claim at the time his conviction became final would [not] have felt compelled by existing precedent to conclude that the rule [Prihoda] seeks was required by the Constitution.” Saffle v. Parks, - U.S.-, 110 S.Ct. 1257, 1260, 108 L.Ed.2d 415 (1990). Any federal decision holding instruction 1100 unconstitutional therefore would be a new rule for purposes of Teague and could not be applied on collateral review. See also Sawyer v. Smith, - U.S.-, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990).

At all events, instruction 1100 is next to irrelevant to Prihoda’s conviction. Two theories supported his culpability: that he fired at O’Bradovich intending the officer’s death, and that he aided and abetted Cranmore, who fired the fatal shot through the officer’s brain. Instruction 1100 was pertinent to the former theory but not the latter. It is inconceivable that the jury would have used instruction 1100 to convict on the basis of Prihoda’s own intent while believing that Prihoda was not culpable as an associate of Cranmore. Any error is harmless beyond a reasonable doubt. Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).

II

Wisconsin contends that all of Prihoda’s remaining arguments were forfeited by his failure to present them when first seeking collateral relief in 1980. So the state’s court of appeals held. Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), which holds that forfeiture in state court blocks review in federal court only when it meets the conditions of the independent-and-adequate-state-ground doctrine, potentially presents Prihoda with three ways to avoid the conclusion of the state court.

1. A state ground is “independent” only if the state court actually relied on a state rule sufficient to justify its decision. Harris holds that a federal court may be sure that the state relied on a sufficient procedural ground only if the state court says so. Which state court? Wisconsin’s court of appeals invoked a state ground explicitly and exclusively, but the Supreme Court of Wisconsin denied review without stating reasons. One court of appeals has held that when the highest state court that has examined the case does not give reasons, the decision of the state’s judicial system as a whole does not rest on an independent state ground. Nunnemaker v. Ylst, 896 F.2d 1200 (9th Cir.1990). Nunnemaker

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Bluebook (online)
910 F.2d 1379, 1990 U.S. App. LEXIS 14074, 1990 WL 116196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-prihoda-v-gary-r-mccaughtry-warden-waupun-correctional-ca7-1990.