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Parisie v. Greer

decided: March 28, 1983.


Appeal from the United States District Court for the Southern District of Illinois, Benton Division. No. 79 C 2113 -- James L. Foreman, Judge.

Cummings, Chief Judge, Pell, Bauer, Harlington Wood, Jr., Cudahy, Eschbach, Posner, and Coffey, Circuit Judges, and Swygert, Senior Circuit Judge.

Author: Per Curiam

This is an appeal by John Stephan Parisie from the district court's denial of his petition for habeas corpus. A panel of this court reversed the district court and ordered the writ of habeas corpus to issue. 671 F.2d 1011 (7th Cir. 1982). The state petitioned for rehearing with suggestion of rehearing en banc, contending that this court lacked jurisdiction of Parisie's appeal. Rehearing en banc was ordered. Although the usual practice of this court is to vacate the panel decision when rehearing en banc is ordered, this was inadvertently not done in the present case. However, six members of the court (Judges Pell, Bauer, Wood, Eschbach, Posner, and Coffey), a majority, believe, though for different reasons, that the panel decision should be vacated.

The court, having vacated the panel decision, has decided to affirm the judgment of the district court denying the petition for habeas corpus, although no single opinion commands the support of a majority of the court's members.

Five members of the court -- Chief Judge Cummings and Judges Cudahy, Eschbach, Posner, and Swygert -- believe that the court does have jurisdiction of Parisie's appeal, but they do not agree on the basis for this conclusion. Judge Swygert, joined by Chief Judge Cummings and Judge Cudahy, proposes one basis, and Judge Eschbach proposes another. Although those joining in Judge Swygert's opinion agree with Judge Eschbach's alternative basis, as does Judge Posner, Judge Eschbach and Judge Posner do not agree with the basis for jurisdiction proposed in Judge Swygert's opinion. The remaining members of the court (Judges Pell, Bauer, Wood, and Coffey), for reasons stated in Judge Wood's opinion, believe that the court does not have jurisdiction of Parisie's appeal.

A majority of the court (Judges Pell, Bauer, Eschbach, Posner, and Coffey) believes that if there is appellate jurisdiction, the court can decide the merits of the appeal even though the petition for rehearing was limited to the question of jurisdiction. Chief Judge Cummings and Judges Cudahy and Swygert disagree for the reasons stated in Judge Swygert's opinion, and Judge Wood (joined by Judge Cudahy) believes that, if the merits are to be reached, the proper course would be to order reargument on the merits.

With regard to the merits, four judges -- Judges Pell, Bauer, Posner, and Coffey -- believe that the judgment of the district court should be affirmed. Judge Eschbach believes the case should be remanded for the reasons stated in Judge Cudahy's dissenting opinion from the panel decision. Chief Judge Cummings and Judges Cudahy and Swygert, believing that the panel majority opinion should be retained, would reverse the district court. (Part III of Judge Swygert's opinion explains why he believes the panel decision is correct on the merits.) Since the court is divided equally on whether to affirm the district court, on the one hand, or reverse it and remand the case, on the other, the district court's decision is affirmed, the panel decision having been vacated herewith. A similar conclusion is reached by observing that four members of the court believe there is no appellate jurisdiction and that a fifth, Judge Posner, believes there is jurisdiction but that the district court's decision should be affirmed on the merits. Thus, five members of the court believe, though for different reasons, that the judgment of the district court should not be disturbed.

For the reasons stated, the panel decision is VACATED and the judgment of the district court is AFFIRMED.


Vacated and Affirmed.

BAUER, Circuit Judge.

I quote from the opinion of the Illinois Appellate Court in a recitation of certain facts in this case, not contested in the proceedings before this court.

A deputy sheriff testified that the defendant was found asleep in the decedent's car at 5:22 A.M. the same morning [that the decedent was found] and that there was blood on the left front seat, left door and left rear fender of the car. When he was apprehended, the defendant had the decedent's driver's license and credit cards in his own wallet, and he had the victim's cigarette lighter and wallet (containing checks and papers of the decedent) in his pocket. The decedent's sport jacket was found folded on the back seat of the car and in the pocket was decedent's gold wedding ring. The defendant was placed under arrest and remained in the county jail until trial. At the jury trial, Parisie testified on his own behalf and admitted that he shot deceased. He also admitted that he had stolen the pistol used to kill the decedent during a burglary a few days earlier and that he had fired the pistol in his hotel room before the shooting of the decedent. Parisie was found guilty by the jury and was sentenced by the court to a penitentiary term of 40 to 70 years.

The defense was that of insanity -- insanity based upon "homosexual panic." The single constant thread woven throughout the fabric of this appeal is the issue of homosexuality and the theory of defendant attempting to equate "homosexual panic" with insanity. And since this theory underlies some of the specific issues raised, we will consider it at the outset.

On the third day of voir dire the defense presented to the court an affidavit of one of the defendant's lawyers wherein he stated that three persons who were presently incarcerated (one in a Tennessee jail, another in an Illinois penitentiary and a third at the Illinois State Farm), if called to testify, would state that each, respectively, had homosexual relations with the decedent, knew decedent's reputation in the community was that of a homosexual, and that decedent had been observed in a "known homosexual hangout" holding hands with another male person. The affidavit was signed by defense counsel and alleged that it was based upon interviews conducted by an investigator.

Defendant offered [the same] three witnesses to testify relative to decedent's homosexual reputation. All three witnesses were called to the stand, gave their names and their addresses, and then objection by the prosecution to their further testimony was sustained. The only offer of proof made by defense counsel as to what they would testify to came from defense counsel themselves. In the case of the first witness, defense counsel merely stated in chambers that the first witness would testify to three specific acts of homosexuality with the deceased and that the decedent's reputation in the community was that of a homosexual. There was not even that much offer of proof on the other two witnesses, since counsel simply stated that they adopted as offer of proof the affidavit previously filed. When we turn to that affidavit we find that it is one executed by one of defense counsel, containing a mere recitation that the two witnesses had seen decedent in known homosexual locations. The "offer of proof" regarding all three of these witnesses is patently inadequate. They amount to nothing more than conclusionary, broad-sweeping statements of defense counsel and offer no acceptable foundation for admission as reputation evidence. "This court, on numerous occasions, has held that reputation witnesses must be shown to have adequate knowledge of the person queried about and that evidence of reputation, to be admissible, must be based upon contact with the subject's neighbors and associates rather than upon the personal opinion of the witness." People v. Moretti, 6 Ill. 2d 494, 129 N.E.2d 709, 725. Obviously, the form in which this offer of proof comes to us is insufficient to accommodate the well settled state of the law in this area.

People v. Parisie, 5 Ill. App. 3d 1009, 287 N.E.2d 310, 313, 317, 324-25 (1972).

The panel majority opinion brushed aside the fact that the offer of proof failed to meet the standards of Illinois law and rather casually reversed not only this case but the holding of the Supreme Court of Illinois in the Moretti decision.

It is worth noting that the state trial court and the state appellate court each addressed the relevancy question and the offer of proof and found against the defendant. As Judge Cudahy pointed out in his dissent to the original panel opinion, this issue was never addressed or developed by the district court in the case before this court. Judge Cudahy, in footnote 2 of his dissent, stated properly that:

the majority . . . [argues] that the proffered testimony "involved a great deal more than mere reputation evidence" because the witnesses allegedly would testify about "actual homosexual acts and manifestations" attributed to the victim. Ante, at 1014. But I think under Illinois law evidence of prior homosexual acts may not be admitted to prove reputation. See People v. Moretti, 6 Ill. 2d 494, 129 N.E.2d 709, 725-26 (1955), cert. denied, 356 U.S. 947 [2 L. Ed. 2d 822, 78 S. Ct. 794] (1958). The defendant apparently did not articulate at trial or on this or prior appeals any basis other than reputation upon which the state trial judge could have admitted evidence of prior acts by the victim. Rather than joining the majority in merely asserting that the proffered evidence "involved a great deal more than reputation evidence," I believe that we should remand to the district court for a determination of the purpose for which this evidence was proffered and the state law evidentiary rules governing its admission.

I think that to require the district court, without further hearing, to issue the writ prayed for by Parisie would be just plain wrong. Illinois courts in the application of their own law are entitled to far more consideration than this would give them.

I recognize that the judges who joined the panel decision, and a minority of the other judges of this court, have taken the position that only the jurisdictional issue was before the en banc panel. I do not think this is either required or proper.

Circuit rule 16(b) should not be interpreted as a positive limitation on this court's power. Rather, the rule is intended to insure that the court is properly apprised of the issues meriting reconsideration. If the petitioning party fails in this task, the court has both the power and the duty to raise and consider the issues itself. This court likely would denounce an attempt by a party to construe these rules as limiting its powers, but that is precisely what Judge Swygert suggests happened here. The failure of the litigants to suggest an appropriate route to rehearing does not limit this court's power to recognize sua sponte the exceptional importance of this issue.

Considering all issues involved, I would affirm the decision of the district court on the merits.


POSNER, Circuit Judge.

There are three issues potentially before us in this case: whether we have jurisdiction of the appeal; if so, whether we can decide the merits of the appeal even though rehearing en banc was granted only with respect to the jurisdictional question; if so, what our decision on the merits should be. On the first issue, I agree that we have jurisdiction for the reasons stated by Judge Eschbach, but not for the reasons stated by Judge Swygert. Although I am sympathetic to the policy of interpreting the federal rules of civil procedure liberally for the benefit of pro se prisoner litigants such as this appellant, see Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982), I do not see how a motion for an extension of time to file a Rule 60(b) motion can be considered a Rule 59(e) motion to alter or amend the judgment. Even though the appellant was not represented by counsel when he filed his motion, the motion is literate, precise, professionally competent, and unequivocally a motion for an extension of time rather than to alter or amend the judgment. There is no room for interpretation.

We have no authority to waive the federal rules for pro se litigants. A Rule 59(e) motion tolls the 30-day limit for docketing the appeal, see Fed. R. App. P. 4(a)(4), but it must be filed within 10 days after the entry of judgment, and extensions of time to file it are not allowed, Fed. R. Civ. P. 6(b). Motions under Rule 60(b) and motions to extend the time for filing Rule 60(b) motions do not toll the 30-day limit for docketing appeals. Judge Swygert would treat a motion for an extension of time to file a Rule 60(b) motion as a Rule 59(e) motion. It is a peculiar kind of Rule 59(e) motion, since it contains no grounds for altering or amending the judgment but is just a request for more time to present those grounds. The district judge could not act on the motion till the movant was given a chance to present his grounds -- to file, as it were, his substantive Rule 59(e) motion. By this sequence the 10-day limit in Rule 59(e) would be circumvented. We cannot allow this, cf. Western Transport. Co. v. E.I. Du Pont de Nemours & Co., 682 F.2d 1233, 1236 (7th Cir. 1982), even if we overlook the fact that the appellant here wanted to file a Rule 60(b) rather than a Rule 59(e) motion and that if his motion for an extension of time were deemed a Rule 60(b) motion his appeal would be untimely.

This is not a case where enforcing the federal rules as written would mislead the pro se litigant. The judgment which Parisie is trying to appeal was entered on December 18, 1980, and Rule 4(a)(1) of the Federal Rules of Appellate Procedure required him to file his appeal within 30 days (in fact he filed it more than five months later). Parisie does not argue that he was ignorant of the 30-day limitation for filing his appeal, and nothing in the federal rules, civil or appellate, would lead even a layman to think that the 30-day limitation was tolled by filing a motion under Rule 60(b) or a motion for an extension of time within which to file a Rule 60(b) motion. He might miss the interplay between Rules 6(b) and 59(e) of the civil rules and thereby fail to realize that he could not get an extension of time within which to file a Rule 59(e) motion; but I cannot imagine him thinking that filing a motion for an extension of time within which to file a Rule 60(b) motion would extend the time he had to file an appeal.

Turning to the second issue, I agree with Judge Bauer that we are not prevented from reaching the merits of the appeal by the fact that the state limited its petition for rehearing with suggestion for rehearing en banc to the jurisdictional issue. Nothing in 28 U.S.C. ยง 46(c), Fed. R. App. P. 35, or Circuit Rule 16 requires this court, when it hears a case en banc, to limit its consideration to the issues presented in the petition for rehearing as distinct from the issues presented in the appeal itself. When rehearing en banc is ordered, new briefs are not filed; instead, the members of the court who were not on the panel are given the original briefs. Thus, they have the same papers before them that the panel had and they can if they wish hear the tape recording of the oral argument made before the panel. It is not unusual for a judge who did not attend the argument to participate in a panel's decision after having read the briefs and heard the tape of the argument and there is no greater irregularity when judges who were not on the original panel participate in a decision on an issue briefed and argued before that panel but not raised in the petition for rehearing or argued at the rehearing en banc.

Turning, finally, to the merits of the appeal, I cannot agree that the appellant is entitled to a new trial so that he can introduce evidence that his murder victim was a homosexual, or even that a remand for further exploration of the question in the district court is warranted. Parisie wants the evidence admitted in order to bolster his defense of "homosexual panic," which is the idea that a latent homosexual -- and manifest "homophobe" -- can be so upset by a homosexual's advances to him that he becomes temporarily insane, in which state he may kill the homosexual. It is no business of mine whether the State of Illinois chooses to recognize a defense of "homosexual panic" as a subcategory of the insanity defense, but I cannot believe that the Constitution of the United States requires a state to allow defense counsel in a murder case to defame the murderer's victim as a homosexual without satisfying the normal prerequisite to admitting evidence of reputation -- that the evidence "'be based upon contact with the subject's neighbors and associates rather than upon the personal opinion of the witness.'" People v. Moretti, 6 Ill. 2d 494, 524, 129 N.E.2d 709, 725 (1955), quoted in People v. Parisie, 5 Ill. App. 3d 1009, 1034, 287 N.E.2d 310, 325 (1972).

Although it would violate the due process clause of the Fourteenth Amendment for the state to prevent Parisie from putting on a defense at his trial, Washington v. Texas, 388 U.S. 14, 19, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967), it does not follow that any exclusion of relevant evidence is a denial of due process; a panel of this court had occasion to reaffirm this distinction just the other day, see Carbajol v. Fairman, 700 F.2d 397, (7th Cir. 1983). Reasonable limitations on the admission of relevant evidence are not unconstitutional, and Illinois' limitation of evidence of reputation is reasonable both in general and as applied to the facts of this case. Especially in a collateral attack on conviction, where passage of time (Parisie was convicted 14 years ago) may make retrial infeasible, the only question should be whether the exclusion of relevant evidence so impeded the defendant's ability to defend himself that it may be said to have deprived him of his right to a fair trial. We must ask not whether Parisie's trial was perfect by our lights, but whether it was fair. Parisie had a fair trial -- a trial that, even if not perfect (and what trial is?) satisfied, and by a generous margin, minimum standards of civilized criminal procedure.


WOOD, JR., Circuit Judge.

The majority finds jurisdiction in this court, but by two opposing views, one authored by Judge Swygert and the other by Judge Eschbach. I respectfully dissent from both.

Even though Judge Swygert makes a strong argument for creating an exception to the Federal Rules of Civil Procedure in order to give us jurisdiction in this case, I must respectfully dissent. I expect that any future cases taking advantage of this vague and flexible new precedent will continually remind us of today's mistake.

On January 17, 1969, Parisie was found guilty of murder by a jury in the Circuit Court of Sangamon County, Illinois, and sentenced to a term of 40 to 70 years. In 1972, the Illinois Appellate Court affirmed the conviction.*fn1 Attempts at review by the Illinois Supreme Court and post-conviction proceedings were unsuccessful.

The undisputed facts giving rise to this jurisdictional dispute followed ten years later in 1979 and 1980:

April 3, 1979 : Parisie, pro se, filed in the district court his petition for a writ of habeas corpus to which the state responded with a motion to dismiss ...

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