Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. IP 82-444-C -- Cale J. Holder, Judge.
Cudahy, Coffey, and Flaum, Circuit Judges.
Petitioner Jack Riner appeals from the district court's denial of his petition for writ of habeas corpus. Riner challenges his conviction for first degree murder on the ground that he was denied the right to confront and cross-examine witnesses against him. The state of Indiana contends that he waived his right to raise the confrontation issue on appeal as a result of his failure to raise the issue at trial or on direct appeal in the state courts. For the reasons set forth below, we reverse the denial of the writ of habeas corpus.
The petitioner's conviction for first degree murder and sentence of life imprisonment arose from the events that transpired in the early morning hours of August 10, 1970, during the course of a burglary at Gibson's Trading Post near Belleville, Indiana. On that morning, Edward Gibson and his brother Harold Gibson, the co-owners of the trading post, drove to their store upon hearing an alarm in their homes, which was connected to the store's burglar alarm. The brother positioned themselves at opposite ends of the store. As Harold started walking toward the store, he was shot in the leg. He testified that he proceeded to shoot at a fleeing figure going over a fence. When Harold went to the front of the store, he found his brother Edward holding a gun and yelling that he had also been shot. Upon seeing a man or boy running across a neighboring yard, Harold fired a few shots at the person. Harold saw a figure running across the road, got back into his car, drove across the road, and caught another glimpse of the man running behind a house. Harold was unable, however, to identify the persons that he had see that morning. Edward later died as a result of the shooting.
Petitioner Jack Riner, a fifteen-year-old, his older brother Ronald, and their uncle Wayne Evans were charged with first degree murder as a result of the killing, which occurred during the course of a felony. The charges against Ronald Riner were subsequently dismissed. The petitioner and Evans were represented by the same attorney at their joint trial. Ronald testified as a state's witness at the trial, relating his version of the events on the morning of August 10, 1970, and recounting a conversation that he had had with Evans during their confinement in jail awaiting trial.
At the conclusion of the jury trial during which neither Evans nor the petitioner testified, both the petitioner and his uncle were convicted and sentenced to life imprisonment. The Indiana Supreme Court affirmed the petitioner's conviction on direct appeal in Riner v. State, 258 Ind. 428, )281 N.E.2d 815 (1972). The petitioner was represented on this appeal by the same attorney who had represented him and his uncle at trial. On March 29, 1973, the petitioner filed his first petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982) in the United States District Court for the Northern District of Indiana. This petition was denied on April 3, 1974. On March 1, 1976, the petitioner filed a petition for post-conviction relief in state court, raising for the first time his claim that he had been denied the right to confront and cross-examine witnesses against him. His petition was denied on September 24, 1976. The Indiana Supreme Court affirmed the denial of post-conviction relief in Riner v. State, 271 Ind. 578, 394 N.E.2d 140 (1979). On February 20, 1982, the petitioner filed his second petition for a writ of habeas corpus, in the United States District Court for the Southern District of Indiana, but that petition was dismissed without prejudice for want of jurisdiction and for failure to exhaust state remedies.
On April 15, 1982, the petitioner filed pro se the present petition for a writ of habeas corpus in the United States District Court for the Southern District of Indiana. In his petition, the petitioner alleges that; (1) he was denied his right to confront witnesses in state court, (2) the confrontation issue was not raised at trial or on direct appeal because the petitioner's counsel had a conflict of interest due to his dual representation of the petitioner and Evans, and (3) the state waived its waiver defense by responding to the merits of the petitioner's claim in the state post-conviction proceeding. The district court denied the petitioner's request for relief on March 3, 1983. The district court held that while the petitioner had exhausted his state court remedies, he had failed to show the necessary cause and prejudice to overcome waiver of the confrontation claim by his failure to raise it at trial or on direct appeal.
On appeal, the petitioner asserts that his right to confront and cross-examine witnesses was denied in Indiana state court and that he has not waived his right to address the confrontation issue on appeal.
A. Waiver of Right to Address Confrontation Issue on Appeal
According to 28 U.S.C. § 2254(a), a state prisoner is entitled to habeas corpus relief in a federal court only if he is being held "in custody in violation of the Constitution or laws or treaties of the United States." Engle v. Isaac 456 U.S. 107, 119, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982). Before determining whether a state prisoner's rights have been violated, however, a court must decide whether the prisoner has waived his claim for federal habeas corpus relief by failing to comply with such state procedural rules as those requiring a defendant to object at trial or to raise an issue on direct appeal. Id. at 126 n.28; Williams v. Duckworth, 724 F.2d 1439, 1442 (7th Cir. 1984), cert. denied, 469 U.S. 841, 105 S. Ct. 143, 83 L. Ed. 2d 82 (1984),*fn1 The Supreme Court has observed that a federal court's decision whether to examine a state prisoner's constitutional claims when the prisoner has failed to abide by applicable state procedural rules implicates two types of concerns: (1) Congress's interest in providing a federal forum for the vindication of state prisoners' constitutional rights, and (2) the state's interest in the integrity of its procedural rules and in the finality of its judgments. Reed v. Ross, 468 U.S. 1, 104 S. Ct. 2901, 2907, 82 L. Ed. 2d 1 (1984). The court have noted that principles of comity require a state prisoner to present his claims to the appropriate state tribunal before seeking relief in federal court, thereby giving the state court the first opportunity to correct a constitutional violation. See e.g., United States ex. rel. Spurlark v. Wolff, 699 F.2d 354, 356 (7th Cir. 1983).
Although recognizing the state's interest in the integrity of its procedural rules, the Supreme Court has consistently held that federal courts have the power under 28 U.S.C. § 2254 to look beyond a state procedural forfeiture in order to examine a state prisoner's claim that his constitutional rights have been violated. Reed v. Ross, 104 S. Ct. at 2907. The Court has held that when a procedural default by a state prisoner bars litigation of a constitutional claim in the state courts, the prisoner may obtain federal habeas corpus relief by showing cause for and actual prejudice from the default. Engle v. Isaac, 456 U.S. at 129; Wainwright v. Sykes, 433 U.S. 72, 87, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977). In formulating the cause and prejudice standard, the Court has declined to give the term "cause" precise content because of the numerous reasons for an attorney's failure to comply with a procedural rule and the limitless array of contexts in which a procedural default could occur. Reed v. Ross, 104 S. Ct. at 2909. The Court has noted that the terms "cause" and "actual prejudice" are not rigid concepts, but rather take their meaning from principles of comity and finality. Engle v. Isaac, 456 U.S. at 135. thus, these terms may yield in cases in which it is necessary for a court to correct a fundamentally unjust incarceration. Id.
In the present case, the respondent argues that the petitioner Jack Riner waived his Sixth Amendment confrontation claim by failing to make a contemporaneous objection during trial and by failing to raise the confrontation issue on direct appeal. The petitioner did not raise the confrontation issue until he filed his petition for post-conviction relief. In examining his petition, the state circuit court held that the petitioner had waived the confrontation issue by not raising it on direct appeal. The circuit court also concluded that if the confrontation issue had been raised on direct appeal, the Indiana Supreme Court would likely have granted the petitioner a new trial based on a violation of the petitioner's Sixth Amendment right to confront witnesses under United States v. Bruton, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). Upon petitioner's appeal of the circuit court's denial of post-conviction relief, the Indiana Supreme Court concluded that the petitioner had waived his right to raise the confrontation issue in his petition for post-conviction relief under the Indiana post-conviction relief statute*fn2 by not raising the issue at the time of the original trial or on direct appeal. Riner v. State, 271 Ind. 578, 581-82, 394 N.E.2d 140, 143-44 (1979). Since the petitioner has therefore waived his right to raise the confrontation issue in the Indiana courts by failing to raise the issue at trial or on direct appeal, we must determine whether the petitioner has shown cause for an actual prejudice from the default, thereby permitting us to overcome the waiver argument and to examine the petitioner's claim on the merits.
The petitioner claims that the confrontation issue was not raised at trial or on direct appeal because the same attorney represented him at both levels. We hold that dual representation of co-defendants at trial and representation of one or more of these defendants by that same attorney on direct appeal can meet the cause element of the cause and prejudice standard under certain circumstances. In a case where an individual is represented by the same counsel at both the trial and appellate levels, there exists the possibility that the attorney might be inhibited from raising on appeal issues stemming from the defendants' conflicting defenses because to do so might cast doubt on the effectiveness or propriety of the attorney's dual representation at trial. In several cases where a petitioner has been represented by different attorneys at trial and on appeal and where we have denied habeas corpus relief, we have hinted that the outcome of the case may have been different if the same attorney had represented the petitioner at both the trial and on direct appeal since the same attorney might be reluctant to raise issues on appeal that might suggest his ineffectiveness at trial. United States ex rel. Devine v. DeRobertis, 754 F.2d 764, 766-68 (7th Cir. 1985); Dently v. Lane, 712 F.2d 1172, 1175-78 (7th Cir. 1983); United States ex rel. Williams v. Franzen, 687 F.2d 944, 950 n.11 (7th Cir. 1982). Since it would be most difficult if not professionally awkward to require a lawyer to argue on appeal his own ineffectiveness in not raising at trial issues relating to his dual representation, such as the confrontation question presented her, we conclude that identity of trial and appellate counsel can constitute sufficient cause to meet the first element of the cause and prejudice standard.
In addition to showing cause for his failure to comply with state procedural rules, the petitioner must also show actual prejudice suffered as a result of his failure to raise an issue at trial or on direct appeal. Engle v. Isaac, 456 U.S. at 129; Wainwright v. Sykes, 433 U.S. at 87. Although noting that it would not precisely define the terms "cause and "prejudice," the Court in Wainwright v. Sykes held that the evidence presented at trial of the petitioner's guilt in that case was so substantial as to negate any possibility of actual prejudice resulting to the petitioner from the admission of his inculpatory statement. Wainwright v. Sykes, 433 U.S. at 87, 91. In the present case, we must determine whether the petitioner was prejudiced as a result of his attorney failure to raise the confrontation issue at trial or on direct appeal, when the effect of that failure was the admission of Ronald's testimony as to his conversation with Evans in jail.
Ronald Riner testified as a prosecution witness at the joint trial of his brother and uncle. Based on his personal knowledge, Ronald related that he had been driving around with his uncle and brother in Evans's car in the early morning hours of August 10, 1970. Ronald stated that he had been sleeping in the back seat when the car stopped and Evans got out and walked back to the trunk. Ronald related that Evans removed a plastic bag from the truck that had an object resembling the butt of a rifle sticking out of it and proceeded to ask Jack if he would go with him. Ronald stated that he lay back down in the back seat until he heard some shooting and saw several cars pulling up to a building. Ronald stated that he got out of the car and saw someone, whom he believed to be Evans, running first toward the car and then toward the town of Plainfield. Ronald testified that he became frightened and ran into a field.
In addition to his testimony based on his personal knowledge, Ronald testified to a conversation that he had had with his uncle while in jail awaiting trial. Ronald testified that his uncle had told him that he had instructed Jack to be a lookout on the morning of August 10 while Evans tried to force open the door of the trading post. Ronald also testified that his uncle said that he had been shot at by someone and had returned the fire. Evans also told Ronald that as he was running east, he was confronted by another man who fired at him, and that Evans shot this man. Before Ronald testified as to that conversation with Evans, the defendants' attorney objected ...