By Matthew Keller
A quick post on a couple of Seventh Circuit decisions issued in the past couple of weeks:
First, the Seventh Circuit quickly put the kibosh on habeas petitions asserting claims based on Alleyne v. United States (U.S. Jun. 17, 2013), the recent Supreme Court decision holding that Apprendi extends to facts mandating a mandatory minimum sentence.
In Simpson v. United States, No. 13-2373 (7th Cir. Jul. 10, 2013), the Circuit disposed of Levence Simpson’s request to file a successive § 2255 motion based on Alleyne. Simpson received a 20-year mandatory minimum sentence for drug offenses; the Seventh Circuit affirmed in 2003. His first § 2255 motion, claiming ineffective assistance, was denied in 2006.
Then came Alleyne, which overruled Harris v. United States and held that a judge cannot find facts resulting in a mandatory minimum unless the defendant either admits those facts or waives his entitlement to have a jury make that determination. After Alleyne, Simpson argued that he was entitled to a successive § 2255 based on the “new constitutional rule” created by that decision.
The Seventh Circuit denied Simpson leave to file a successive § 2255. The easiest way to do this would have been to limit it to Simpson's facts: in his case the jury had found, by way of a special verdict, that he conspired to distribute more than one kilogram of heroin and more than 50 grams of crack (thus requiring the 20-year mandatory minimum).But the Seventh Circuit, no-doubt envisioning a tsunami of Alleyne-based prisoner claims, went a bit further. It conceded (as it had to) that Alleyne established “a new rule of constitutional law.” But the Court noted that Alleyne did not satisfy the second requirement of § 2255(h)(2): that the Supreme Court make the new rule “retroactive to cases on collateral review.” The Supreme Court did not do this; Alleyne came to the Supremes on direct, not collateral, review and the Court's decision says nothing about retroactivity. For good measure, the Circuit noted that other extensions of Apprendi have been held to be non-retroactive.
Taylor v. Ground, No. 12-2632 (7th Cir. Jul. 3, 2013)
A week before Simpson, the Seventh Circuit granted a habeas petition based on an attorney's conflict of interest in a joint representation. You don't see many of these claims, especially in big cities where public defender organizations and Criminal Justice Act panels generally do a good job of providing separate counsel where there is even a potential for conflicts. So a habeas grant on conflict grounds coming out of Chicago deserves a bit of digging.*
* For all you history buffs, this months' NY State Bar Journal has a good article about the Boston Massacre trials, one of the most famous joint representations ever. John Adams represented both the British soldiers who fired into the crowd and the officer who was charged with giving the order to fire. These days, such a joint representation would never be allowed. But no one seemed all that concerned at the time.
In Taylor, Levell Taylor was convicted of murder in Illinois and sentenced to 35 years for the 1996 gang-related killing of Bruce Carter. On direct appeal, he claimed that his counsel operated with a conflict of interest by jointly representing both him and his brother, Lowell, in simultaneous murder trials. In particular, Taylor argued that his lawyer’s refused to call certain exculpatory witnesses at his trial because those witnesses might have implicated Lowell. This is a classic conflict claim, but the Illinois Supreme Court found no conflict and affirmed the conviction
On § 2254 habeas review, the district court upheld the Illinois Supreme Court. However, it granted COA on the issue: "[w]hether trial counsel's joint representation of Petitioner Levell Taylor and his co-defendant/brother, Lowell Taylor, violated Petitioner's constitutional right to the effective assistance of counsel under the Sixth and Fourteenth Amendments. . . .”
The Seventh Circuit disagreed with the district court. It found that the Illinois Supreme Court unreasonably applied US Supreme Court precedent by holding that Taylor’s interest in presenting exculpatory witnesses did not conflict with Lowell’s interest in preventing admission of inculpatory testimony.
The governing Supreme Court law, Cuyler v. Sullivan, 446 U.S. 335 (1980), requires a reviewing court to analyze whether there was a defect in counsel's strategy, tactics, or decision-making attributable to a conflict of interest. According to the Seventh Circuit, the Illinois Supreme Court unreasonably applied Cuyler. The Supreme Court:
"unreasonably declined to perform any analysis of Taylor's potential defense in assessing his Sixth Amendment claim. If it had, the court would have arrived at the inescapable conclusion that Taylor's potential strategy was sufficiently plausible such that his interests were at odds with those of his brother in deciding whether to pursue a unified assault on the State's evidence."*
*Specifically, the Circuit noted that three eyewitnesses identified Lowell as the shooter but did not see Taylor hand Lowell a gun. According to the Circuit, “these witnesses would have refuted the State's only evidence connecting Taylor to the crime.”
The Circuit remanded for fact-finding required under Cuyler - whether the conflict of interest between the two brothers adversely affected the attorney’s performance.
In the Second Circuit, pursuant to a decision called Curcio, the Court is required to explain to codefendants who wish to share counsel the risks of joint representation. I don't know what the practice is in the Seventh Circuit, but it sounds as if there should have been more of an effort at the beginning to think through the conflicts between Taylor and his brother. As this decision illustrates, it's better to get those issues out in the open early on rather than dealing with them after trial.