Appeal from the United States District Court for the Eastern District of Wisconsin. No. 80 C 1165 -- John W. Reynolds, Judge.
Before PELL, POSNER, and COFFEY, Circuit Judges.
POSNER, Circuit Judge. One evening in September 1974 James Nichols was drinking in a bar in Milwaukee with a group that included Marie Greenamyer. Although she was married, her husband was not present. The group decided to leave for another bar. Nichols and Mrs. Greenamyer drove separate cars; the rest of the group was in a third car. According to Mrs. Greenamyer's testimony, Nichols was following her and when she lost sight of the third car she became afraid, because he had made advances to her earlier in the evening. In an effort to evade him she turned by mistake into a deadend street. She stopped her car and turned off the lights and ignition, hoping Nichols would not notice her. But he did. He stopped his car behind hers, got out, and came over to her car and began talking to her, renewing his earlier advances. She got out of the car and tried to run away. He attacked her. She fought him off, but when he began to choke her and threaten her with a knife, she stopped resisting, and Nichols attempted to have intercourse with her. He had difficulty achieving an erection but managed to penetrate her briefly. He then released her but ordered her to follow him in her car. She stopped her car at an intersection and ran into a bar, shouting, "This guy tried to kill me, tried to rape me. He tried to rape me; he raped me." She was cut and bruised.
Nichols testified as follows: He had indeed approached Mrs. Greenamyer after her car had stopped in the deadend street, and asked her to have intercourse with him. She consented, but he was impotent and only put his finger in her vagina. She reacted with disgust and expressed fear that her husband would find out about the incident. He then left.
In 1975 a jury found Nichols guilty of rape and other offenses. He was sentenced to 20 years for rape and an additional two years for endarngering safety by conduct regardless of life. After exhausting state remedies he brought this federal habeas corpus action in 1980, and he appeals from the denial of his petition. (He was paroled recently after serving 7 1/2 years in prison, but of course that does not moot this action.) The only issue we are asked to decide is whether the trial judge's refusal to instruct the jury on the lesser included offense of attempted rape was an error of constitutional magnitude.
Under the law of Wisconsin an instruction on a lesser included offense is proper only if there is a reasonable basis in the evidence for conviction of that offense. "To give an instruction on a lesser included offense when the commission of that lesser included offense is not reasonably shown by the evidence is no favor to a defendant. The inclusion of a doubtful lesser included offense is likely to result in a jury's compromise to the detriment of the defendant." Ross v. State, 61 Wis. 2d 160, 170, 211 N.W.2d 827, 832 (1973). "[T]he evidence is to viewed in the most favorable light it will "reasonably admit of from the standpoint of the accused." This test does not call for a weighing of the evidence by the trial judge. He is merely obliged to examine the evidence to determine whether the proposed instruction is based upon mere conjecture and whether, if a verdict were returned on the lesser included offense, he would be obliged to set it aside. . . . To instruct on the lesser included offense, . . . the evidence of the lesser included offense must be relevant and appreciable; and as considered most favorably to the defendant, the inclusion of the instruction must not be unreasonable." 61 Wis. 2d at 172-73, 211 N.W.2d at 833. The rule in federal criminal trials, and in virtually all the states, is the same or similar. See Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 93 S. Ct. 1993 (1973); Beck v. Alabama, 447 U.S. 625, 636, 65 L. Ed. 2d 392, 100 S. Ct. 2382 n. 12 (1980). The Wisconsin Supreme Court concluded that it would have been unreasonable for the jury to have convicted Nichols of attempted rape, but the court id not explain the basis for its conclusion.
Nichols does not question the constitutional adequacy of the Wisconsin standard (nor could he after Hopper v. Evans, 456 U.S. 605, 102 S. Ct. 2049, 72 L. Ed. 2d 367 (1982); see also Bell v. Watkins, 692 F.2d 999, 1004 (5th Cir. 1982)), but only the application of the standard to the facts of his case. He argues that the jury might have believed on the one hand that he had tried to rape Mrs. Greenamyer and on the other hand that he had not succeeded -- might in other words have believed all of Mrs. Greenamyer's testimony except on penetration. The state rejoins that since Nichols' testimony did not support a theory of attempted rape -- he denied having coerced her at all -- and since Mrs. Greenamyer's testimony was that she had been raped, there was no evidentiary basis for convicting Nichols of attempted rape. We disagree. Since both testified to Nichols' difficulty in achieving an erection, the evidence that Mrs. Greenamyer was forced was inherently stronger than the evidence that she was raped. And when she first told of the incident she said twice that Nichols had tried to rape her. (This is ambiguous, though; she may not have realized that even slight penetration is enough to constitute rape.)
If it were our duty to decide whether there was a reasonable evidentiary basis for an instruction on attempted rape, we would hold there was; but it is not. A federal court in a habeas corpus proceeding brought by a state prisoner does not sit to correct errors in the application of state law. Carbajol v. Fairman, 700 F.2d 397, 401 (7th Cir. 1983). In United States ex rel. Peery v. Sielaff, 615 F.2d 402, 404 (7th Cir. 1979), therefore, we joined several other circuits in holding that failure to instruct on a lesser included offense, even if incorrect under state law, does not warrant setting aside a state conviction unless "failure to give the instruction could be said to have amounted to a fundamental miscarriage of justice." It could not here. Although as an original matter we think Nichols was entitled under the standard enunciated in Ross v. State to an instruction on the lesser included offense of attempted rape, it is a close question and we cannot say that the Wisconsin Supreme Court was unreasonable to resolve it against him, or that the denial of the instruction in the circumstances of this case was likely to have resulted in the conviction of an innocent man.
But we must consider whether Peery can survive Beck v. Alabama, supra, 447 U.S. 638, where the Supreme Court held that "if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, [the state] is constitutionally prohibited from withdrawing that option from the jury in a capital case." We followed Peery in the post- Beck. Applied here, the "risk enhancement" test of Beck might seem to require setting aside Nichols' conviction. Although one might think that omitting a lesser included instruction would increase the probability of acquittal rather than of conviction of the more serious offense, this was not the Supreme Court's view in Beck: "when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense -- but leaves some doubt with respect to an element that would justify conviction of a capital offense -- the failure to give the jury the "third option" of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction." Id. at 637.
Beck, however, involved a statute that forbade giving an instruction on a lesser included offense (in any capital case) no matter how strong the evidence of the defendant's guilt of the lesser included offense. A jury forced to choose between conviction and acquittal in a case where it is certain that the defendant is guilty of a serious crime -- Beck's own testimony showed he was guilty of felony murder, the lesser included offense in that case -- may decide to convict him of the offense charged even if it has a reasonable doubt that one of the elements of that offense (the element, in this case penetration, that is not part of the lesser included offense) was actually proved. But it was not certain that Nichols was guilty of any crime. The jury could have believed his story and if it had it would have acquitted him of the very serious offense with which he was charged. The choice facing the jury was to convict Nichols of a crime not every element of which the jury might have thought proved beyond a reasonable doubt or to acquit him; and since there was substantial evidence for acquittal the choice was not loaded against the defendant, as it was in Beck where there was no reasonable probability of the defendant's innocence. To give a lesser-included-offense instruction in a case where there is substantial evidence of complete innocence could easily reduce the probability of acquittal, by offering the jury the attractive compromise of finding the defendant guilty of the lesser offense.
Purely for the sake of illustration, assume that in Beck the probability that the jury would convict the defendant of capital murder if there was no lesser-included-offense instruction was 90 percent and the probability of aquittal 10 percent, but that if the lesser-included-offense instruction (felony murder) had been given the probability of conviction of capital murder would have been 50 percent, of felony murder 45 percent, and of acquittal 5 percent. On these assumptions Beck might well have been harmed by the failure to instruct on the lesser included offense. Assume that in the present case, with no lesser-included-offense instruction given, the probability of conviction was 60 percent and of acquittal 40 percent, but that if the instruction had been given the probability of conviction of rape would have been 40 percent, of conviction of attempted rape 50 percent, and of acquittal 10 percent. Weighing the greatly reduced probability of acquittal if the instruction was given against the enhanced probability of a shorter sentence if he was convicted, Nichols might think himself better off without the instruction. Of course these figures are conjectural but they illustrate why it is less clear here than in Beck that the defendant was hurt by the omission of the instruction.
Another ground for distinguishing Beck is that the greater offense in that case was capital (robbery when the victim is intentionally killed). This fact is emphasized throughout the Supreme Court's opinion, see id. at 637-43, and the applicability of its holding to noncapital cases is expressly reserved, id. at 638 n. 14.
Although the Court may some day decide to extend the rule of Beck to noncapital cases, we are not inclined to anticipate its doing so. Beck vindicated no specific right found in the Bill of Rights and applied to the states through the due process clause of the Fourteenth Amendment. The only right asserted was the right not to be erroneously convicted because the instructions might have induced the jury to find guilt even if one element of the crime had not been proved beyond a reasonable doubt. The right not to be erroneously convicted is, surprising to say, something of a novelty in constitutional criminal procedure. The proposition that "innocence is not irrelevant" was advanced in Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970), in an effort to reduce the inundation of the federal courts with collateral attacks on convictions, rather than to establish a new ground for such attacks. But it had, we conjecture, the unintended consequence of encouraging the Supreme Court to create in Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979), a completely new office for the federal courts in habeas corpus proceedings -- reviewing the sufficiency of the evidence in the petitioner's trial to make sure that a rational trier of fact could have found him guilty beyond a reasonable doubt. This is similar to the standard that an appellate court would use on direct review of a criminal conviction, which is why one sometimes finds Jackson v. Virginia being cited as describing the standard we use on direct appeals from federal criminal convictions. See, e.g., United States v. Tranowski, 659 F.2d 750, 757 (7th Cir. 1981). Jackson has changed the role of the federal court in a habeas corpus proceeding brought by a state prisoner from that of just deciding specific federal constitutional questions to that of giving the prisoner virtually a second appeal -- at least on the sufficiency of the evidence to prove each of the elements of the crime beyond a reasonable doubt, see Greider v. Duckworth, 701 F.2d 1228, 1235-36 (7th Cir. 1983) (concurring opinion) -- from his conviction.
The concern underlying Jackson v. Virginia -- assuring that the innocent are acquitted -- cannot be faulted. But it is unclear to us why the state courts cannot be fully trusted to prevent such an outrage. To be concerned that state courts might not give so much weight to federal constitutional rights as federal courts do (though there is considerable doubt that this is true today, whatever the situation may once have been) is one thing; to think that state judges have any less concern than federal judges with avoiding the ...