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Docket Number

No. 83-2779.

Attorney(S)

Jerold Solovy, Jenner Block, Chicago, Ill., for petitioner-appellant. James V. Cinotto, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Judges

Joel Martin Flaum

Acts

Judiciary And Judicial Procedure — United States Magistrate Judges — Court Officers And Employees — Jurisdiction, Powers, And Temporary Assignment

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Smart Summary

Gray v. Greer, No. 83-2779 (7th Cir. Nov. 27, 1985; reissued Sept. 11, 1986; amended Sept. 25, 1986)

Factual and Procedural Background

In 1978 David A. Gray was convicted in Illinois of rape, attempted murder and armed robbery and sentenced to sixty years' imprisonment. At the first trial Gray’s defense was mistaken identity; that trial resulted in a hung jury. On retrial the State presented an additional witness (a former cellmate who testified that he heard Gray admit the crimes) and the jury convicted Gray. The Illinois Appellate Defender represented Gray on direct appeal; the Illinois Appellate Court affirmed and the Illinois Supreme Court denied leave to appeal.

Gray filed a federal habeas petition alleging insufficiency of the evidence, prosecutorial misconduct and improper jury selection; the petition was dismissed for failure to exhaust state remedies, and Gray then filed a state post-conviction petition which was dismissed and affirmed on appeal. Gray filed a second federal habeas petition alleging ineffective assistance of appellate counsel and improper jury selection. The district court proceedings before a magistrate resulted in dismissal of the second federal petition on grounds that Gray had failed to exhaust state remedies as to the ineffective-assistance claim; this court reversed, holding that Gray had no available state remedies at the time he filed the second petition, and remanded for consideration on the merits.

On remand the magistrate again dismissed the ineffective-assistance claim without reviewing the trial record or conducting an evidentiary hearing, relying instead on the appellate brief and a reluctance to "second guess" counsel's choice of issues. Gray appealed this dismissal to the Seventh Circuit, which reversed and remanded for proceedings consistent with the opinion discussed below.

Legal Issues Presented

Whether the district court erred in dismissing Gray's claim of ineffective assistance of appellate counsel without examining the trial court record or holding an evidentiary hearing.
What standard governs claims of ineffective assistance of appellate counsel and whether Strickland's two-prong test applies to appellate counsel.
Whether Gray's failure to raise the ineffective-assistance claim earlier constitutes a procedural default preventing federal review, and if so, whether cause and prejudice exist.
Whether an evidentiary hearing is required to resolve disputes regarding appellate counsel's choice of issues.

Arguments of the Parties

Petitioner's (Appellant's) Arguments

The district court (magistrate) erred in dismissing Gray's ineffective-assistance-of-appellate-counsel claim without reviewing the trial record or holding an evidentiary hearing.
An evidentiary hearing is necessary unless the record alone can resolve factual disputes about counsel's choice of issues.

Respondent's (Appellee's) Arguments

The magistrate properly refused to "second guess" appellate counsel's strategic choice of issues, and the appellate brief demonstrates competent representation.
The appellees contend (per Cir.R. 19 statement) that affirmance is proper because the petition below raised only the jury selection claim as the basis for ineffectiveness and the Illinois Supreme Court in 1979 would not have entertained such argument; they also argued the district court previously examined the record in connection with earlier claims, making further record review unnecessary.
Respondent contends petitioner waived the claim by failing to present it in his first post-conviction proceeding, raising a procedural default under Wainwright v. Sykes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Evitts v. Lucey, 469 U.S. 387 (1985)	Establishes that the right to appellate counsel is firmly established.	Used as authority that appellate-counsel rights exist and are relevant to habeas review of ineffective-assistance claims on appeal.
Strickland v. Washington, 466 U.S. 668 (1984)	Established the two-prong standard for ineffective assistance of counsel: deficient performance and prejudice; although phrased for trial counsel, it can be used for appellate counsel.	Applied as the governing standard for assessing ineffective assistance of appellate counsel (require deficient performance and prejudice; counsel's choice must meet "objective standard of reasonableness").
Bowen v. Foltz, 763 F.2d 191 (6th Cir. 1985)	Support for using Strickland standard in appellate-counsel claims (cited as "Accord").	Cited as corroborating authority that Strickland's standard may be applied to appellate counsel.
Schwander v. Blackburn, 750 F.2d 494 (5th Cir. 1985)	Another circuit decision applying Strickland principles to appellate-counsel claims.	Used as supporting precedent that appellate-counsel effectiveness can be judged under Strickland-type analysis.
Mitchell v. Scully, 746 F.2d 951 (2d Cir. 1984)	Similar support for applying Strickland standards to appellate counsel.	Cited as additional authority endorsing application of Strickland to appellate-counsel ineffectiveness claims.
United States v. Harris, 558 F.2d 366 (7th Cir. 1977)	Illustrates cases where courts decline to "second guess" trial counsel's strategic decisions.	Cited as inapposite by the court: decisions about trial counsel strategy differ from evaluating appellate counsel's choice of issues, which can be assessed by comparing the appellate brief and trial record.
Wainwright v. Sykes, 433 U.S. 72 (1977)	Establishes that a procedural default (failure to raise an issue in state court) bars federal review absent cause and prejudice.	Referenced to note that Gray's earlier failure to raise the ineffective-assistance claim constitutes a procedural default, but the court deemed the record insufficiently developed to decide cause and prejudice without district-court consideration.
Jones v. Barnes, 463 U.S. 745 (1983)	Holds that appellate counsel is not required to press every conceivable argument on appeal.	Quoted to emphasize that appellate counsel need not raise every possible issue, while the court still requires counsel's choices to meet objective reasonableness under Strickland.
Haines v. Kerner, 404 U.S. 519 (1972)	Requires liberal reading of pro se pleadings.	Applied to construe Gray's petition liberally to determine that he raised other issues beyond the jury selection claim in support of his ineffective-assistance claim.
Williams v. Owens, 731 F.2d 391 (7th Cir. 1983)	States an evidentiary hearing is required only if review of the record is insufficient to resolve factual disputes.	Used to guide the court's instruction that an evidentiary hearing is required only when record review cannot resolve disputes about counsel's choice of issues; district court has discretion after reviewing the record.

Court's Reasoning and Analysis

The court first identified the controlling legal principles: the established right to appellate counsel (Evitts) and the Strickland two-prong test for ineffective assistance (deficient performance and prejudice). While Strickland is framed for trial counsel, the court accepted its use as the basis for appellate-counsel review and cited other circuits that applied Strickland to appellate counsel.

The court rejected the magistrate's dismissal based solely on the appellate brief and a refusal to "second guess" counsel. It explained that a district court must examine the trial record to determine whether appellate counsel failed to raise significant and obvious issues—i.e., whether unraised issues were clearly stronger than those presented. The court distinguished decisions refusing to second-guess trial counsel's strategic choices (e.g., Harris) as inapposite because appellate-counsel choices can be evaluated by comparing the appellate brief to the trial record.

The court instructed that where ineffective assistance is alleged based on failure to raise viable issues, the district court must determine (by reviewing the record) whether the omitted issues would have been clearly more likely to result in reversal or a new trial and whether the omission was so obvious from the record that it amounted to deficient performance. The court noted the presumption of effective assistance will be overcome generally only when ignored issues are clearly stronger than those presented.

On the procedural-default argument (Wainwright), the court observed that Gray's failure to raise the issue earlier constitutes a procedural default, but found the record insufficiently developed to resolve cause and prejudice and thus remanded for district-court consideration. Regarding evidentiary hearings, the court reiterated Williams v. Owens: an evidentiary hearing is required only if record review cannot resolve factual disputes about counsel's choices; given the nature of Gray's claims, such hearings will be exceptional and the district court should exercise discretion after reviewing the record.

The court also noted appellees' Cir. R. 19 submission asserting affirmance, but, applying Haines liberality to Gray's petition, concluded appellant raised additional issues and refused to decide effectiveness on appeal, preferring remand.

Holding and Implications

REVERSED and REMANDED — The Seventh Circuit reversed the magistrate's order of dismissal and remanded to the district court with instructions to review the trial court record to determine whether appellate counsel's failure to raise particular issues constituted ineffective assistance under the Strickland standard as applied to appellate counsel.

Consequences and instructions provided by the court:

The district court must examine the trial record and determine whether the issues petitioner claims appellate counsel failed to raise would have been clearly more likely to result in reversal or a new trial and were so obvious from the record that their omission amounted to ineffective assistance of appellate counsel.
The district court should consider whether the procedural-default rule (cause and prejudice) bars review, but the record is insufficient for this court to decide that issue without district-court factfinding.
Whether an evidentiary hearing is required is left to the district court's discretion after review of the trial record; such hearings are required only if the record cannot resolve factual disputes regarding counsel's choices.
Circuit Rule 18 shall apply on remand.

No new legal principle was announced; the court applied existing Supreme Court and circuit precedent (as cited) and provided instructions for further proceedings in line with those authorities.

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DAVID A. GRAY, PETITIONER-APPELLANT, v. JAMES GREER, RESPONDENT-APPELLEE.

FLAUM, Circuit Judge.

In 1978, petitioner David Gray was convicted of rape, attempted murder and armed robbery and sentenced to sixty years in prison. Petitioner appeals from the dismissal of his habeas corpus petition. For the reasons stated below, we reverse the magistrate's order of dismissal and remand to the district court for proceedings consistent with this opinion.

David Gray was first tried for the rape of Ann Brewer on March 28, 1978. His defense was mistaken identity. The government's case was weakened by the inability of one eyewitness to identify Gray and the lack of corroborating physical evidence to support the in-court identification of Gray by the complaining witness. The trial resulted in a hung jury. The state retried Gray, presenting an additional witness, a former cellmate of Gray's who testified that he had heard Gray admit to the crimes. This time, the jury convicted Gray. The Illinois State Appellate Defender's office represented Gray on appeal of his conviction. The appellate brief raised the following issues: 1) insufficiency of the evidence; 2) improper use of the testimony of Gray's former cellmate; 3) misleading remarks by the prosecutor regarding reasonable doubt; and 4) improper sentencing. The Illinois Appellate Court upheld Gray's conviction and the Illinois Supreme Court denied leave to appeal.

Gray filed a habeas corpus petition in federal court alleging insufficiency of the evidence, prosecutorial misconduct and improper jury selection procedures. This petition was dismissed for failure to exhaust state remedies pursuant to the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38, § 122-1, et seq. Gray then filed a state post-conviction petition which was dismissed; the dismissal was affirmed on appeal.

Gray then brought his second federal petition for habeas corpus relief. The petition alleged ineffective assistance of appellate counsel and improper jury selection procedures. The parties agreed to proceed before a magistrate pursuant to 28 U.S.C. § 636(c). The magistrate dismissed Gray's petition, finding that he had not exhausted state remedies with respect to the ineffective assistance of counsel claim. Gray appealed from the dismissal and we reversed, finding that Gray's failure to raise an ineffective assistance of counsel claim in his initial state petition would prevent the Illinois courts from reviewing this claim. Hence, at the time petitioner filed his second habeas corpus petition in federal court, he had no available state remedies. We reversed and remanded for consideration of Gray's petition on the merits.

On remand, the magistrate reviewed Gray's brief on direct appeal and concluded that appellate counsel was not ineffective but rather "did a good job in citing applicable case law . . . . The four issues raised are wide-ranging and forcefully argued." The magistrate then found that "Gray's legal representation by the appellate public defender was, in fact, well above the average in the profession." The magistrate dismissed Gray's claim of improper jury selection procedures, finding that absent constitutionally defective counsel, petitioner could not show cause for the failure to raise this issue on direct appeal. This appeal followed.

Petitioner contends that the district court erred in dismissing his claim of ineffective assistance of counsel without reviewing the record or conducting an evidentiary hearing. In dismissing petitioner's claim of ineffective assistance of appellate counsel, the magistrate did not review the trial court record. Instead, the magistrate relied solely on his examination of the appellate brief, and, finding the brief to be "a thorough discussion of the four issues raised", determined that appellate counsel was not ineffective. The basis for the district court's failure to examine the record was a reluctance to "second guess" appellate counsel regarding the choice of appropriate issues for appeal.

The right to appellate counsel is now firmly established. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) established the standard for ineffective assistance of counsel, and though it is phrased in terms of ineffective assistance of trial counsel, it can be used as a basis for establishing a standard for effective assistance of appellate counsel. Accord Bowen v. Foltz, 763 F.2d 191, 195 (6th Cir. 1985) (Coutie, J. dissenting); Schwander v. Blackburn, 750 F.2d 494, 502 (5th Cir. 1985); Mitchell v. Scully, 746 F.2d 951, 954 (2d Cir. 1984). Under Strickland, ineffective assistance of counsel will be found when "counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 104 S.Ct. at 2064. The Strickland standard envisions a two-prong analysis. First, counsel's performance must have been deficient, and second, the deficiency must have prejudiced the defense. Id. Had appellate counsel failed to raise a significant and obvious issue, the failure could be viewed as deficient performance. If an issue which was not raised may have resulted in a reversal of the conviction, or an order for a new trial, the failure was prejudicial. Were it legitimate to dismiss a claim of ineffective assistance of counsel on appeal solely because we found it improper to review appellate counsel's choice of issues, the right to effective assistance of counsel on appeal would be worthless. When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.

The district court supported its decision by analogy to cases in which we have declined to "second guess" trial counsel's strategic decisions. These cases, however, are inapposite. They involved decisions of counsel which were arguably appropriate at the time, but, with the benefit of "hindsight", appeared less than brilliant. See United States v. Harris, 558 F.2d 366, 371 (7th Cir. 1977). A reviewing court can evaluate appellate counsel's choice of issues on appeal by examining the trial record and the appellate brief. While it is true that decisions which were arguably correct at the time will not be "second-guessed", a reviewing court must initially determine whether such decisions were, in fact, strategic.

Respondent may well be correct in its assertion that appellate counsel strategically chose not to raise certain issues on appeal. We hold only that the determination of whether the decision was strategic requires an examination of the trial record. In conducting such an examination, the district court should be guided by defendant's careful presentation of those issues which allegedly should have been raised on appeal, with accompanying citations to the trial record.

Respondent also contends that the district court's previous examination of the record in connection with claims in petitioner's first habeas petition makes unnecessary any examination of the record specifically in connection with his ineffective assistance of counsel claim. We find this contention to be without merit.

Respondent contends that we should affirm the district court's dismissal of the habeas petition because, in any event, petitioner waived his claim to effective assistance of counsel by failing to present it in his first post-conviction proceeding. It is true that petitioner's failure to raise the issue earlier constitutes a procedural default. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Such a default precludes our review of a constitutional issue only if the petitioner cannot show cause for the default and prejudice resulting from the default. Id. The record is not sufficiently developed to warrant our making such a determination absent consideration by the district court.

In holding that a reviewing court must review the trial record, we emphasize that the right to effective assistance of appellate counsel does not require an attorney to advance every conceivable argument on appeal which the trial record supports. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). We require only that appellate counsel's choice of issues for appeal did not fall below "an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984).

We therefore remand to the district court with instructions to review the trial court record and determine whether the issues which petitioner claims appellate counsel failed to raise, would have been clearly more likely to result in reversal or an order for a new trial, and were so obvious from the trial record that the failure to present such issues amounted to ineffective assistance of appellate counsel.

The appellees submitted a statement, pursuant to Cir.R. 19 addressing the proper disposition of this case on remand. The appellees suggested affirmance of the district court order. Appellee's claim that appellant's petition below raised only appellate counsel's failure to present the jury selection claim as support for his claim of ineffectiveness of appellate counsel. Appellee argues that the Illinois Supreme Court would not have entertained such an argument in 1979. Reading the petition below liberally, as required by Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), we find that appellant has raised other issues below as well as the jury selection claim to support his claim of ineffectiveness of appellate counsel. Accordingly, we will not decide the effectiveness of appellate counsel on appeal, but remand to the district court for such determination. We take no position on appellant's jury selection claim.

Petitioner further seeks an evidentiary hearing to resolve his claim of ineffective assistance of counsel. An evidentiary hearing is required only if a review of the record is not sufficient to resolve factual disputes regarding the choice of issues. Williams v. Owens, 731 F.2d 391 (7th Cir. 1983). Given the nature of petitioner's claims, it is difficult to envision the evidence or testimony which petitioner would present at such a hearing. When a claim of ineffective assistance of counsel is based on failure to raise issues on appeal, we note it is the exceptional case that could not be resolved on an examination of the record alone. We leave the determination of whether an evidentiary hearing is required to the discretion of the district court after review of the trial court record.

It is further ordered that Circuit Rule 18 shall apply.

GRAY v. GREER