Appeal from the United States District Court for the Eastern District of Wisconsin. No. 87 C 319--Thomas J. Curran, Judge.
Bauer, Chief Judge, Cudahy, and Coffey, Circuit Judges.
Petitioner-appellant Shaheed Madyun appeals from a federal district court's denial of his petition for a writ of habeas corpus. Madyun challenged his Wisconsin convictions for armed robbery, attempted armed robbery, and first degree murder in the district court. Madyun argued that he was denied a fair trial when the trial court declined to sever his trial from that of his codefendant, Verdell Miles. Madyun contended that codefendant Miles's defense was clearly antagonistic to his own, thus he could not receive a fair trial without. The district judge denied Madyun's petition, holding that Madyun had failed to present his constitutional claim to the Wisconsin Supreme Court and further had failed to show sufficient cause and prejudice to overcome the default. We affirm.
Madyun and Miles were tried together on overlapping but not coextensive charges. The charges arose from a series of armed robberies in Milwaukee, Wisconsin on February 4 and 15, 1982. Each of the robberies involved two perpetrators, but prosecutors charged each of the codefendants only in those robberies in which that codefendant had been identified by one or more eyewitnesses. As a result, both Madyun and Miles were charged in connection with robberies at the Dunes Tavern (on February 15) and the Phoenix Inn Motel (on February 4). Madyun alone was charged in connection with a robbery at the Three B's Tavern (on February 15), while Miles alone was charged in connection with a robbery at Martin's Lounge (also on February 15). Madyun moved to sever his trial from Miles's several times during the trial, arguing that conflicting testimony rendered their defenses clearly antagonistic. The trial judge disagreed and allowed the joint trial to proceed.
In their defenses, Madyun and Miles attempted to rely on alibis and on establishing reasonable doubt with questioning of the prosecution's eyewitness identifications. Madyun claimed to have been at home on February 4 and he presented five witnesses to support his claim. Madyun also testified that he was in Waterloo, Iowa on February 15 and produced several witnesses who testified that they had seen him in Waterloo between February 14 and February 16. Miles, too, presented alibis for February 4 and 15.
Some of the evidence against Madyun was developed during the defense of codefendant Miles. Both Miles and one of his alibi witnesses contradicted Madyun's alibi for February 15, placing him in Milwaukee on that day. Miles also implicated Madyun in the murder of an attempted robbery victim at the Dunes Tavern. Miles admitted that he had once stolen the murder weapon, but claimed that he had subsequently sold it to Madyun, thus attempting to imply that Madyun had fired the fatal shot.
The state did not rely exclusively on Miles's testimony to implicate Madyun, however, but instead presented several of its own witnesses, both to contradict Madyun's alibi and affirmatively to prove his guilt. Three prosecution witnesses directly contradicted Madyun's alibis for February 15. Two police officers, Detectives Weismueller and Rogers, testified that Madyun admitted to them that he was present, but denied involvement in the murder, at the Dunes Tavern in Milwaukee (not in Waterloo) on February 15, the date of the tavern robbery. Another prosecution witness, Rachel Moore, said that both Madyun and Miles came to her house in Milwaukee on the afternoon of February 15. In addition, six eyewitnesses, including at least one witness to each of the robberies for which Madyun was charged, identified Madyun as one of the robbers. Of those, three identified Madyun as one of the robbers at the Phoenix Inn Motel, two identified him as one of the robbers at the Dunes Tavern, and another identified him as one of the robbers at the Three B's Tavern. The jury found both Madyun and Miles guilty of all charges.
Madyun appealed his conviction to the Wisconsin Court of Appeals, challenging the trial judge's denial of Madyun's motion for severance. The parties filed their briefs and the court issued notice of submission of the case for decision on October 17, 1984. A month later, Madyun informed the court of appeals that he had fired his attorney and requested that he be allowed to withdraw his briefs and file new briefs raising additional issues. On November 29, the court denied Madyun's request as "untimely." The court sent both Madyun and his attorney its order refusing to allow withdrawal of the briefs because "the court is in the process of issuing its opinion." Neither the court's order nor anything else in the record before us conclusively establishes whether Madyun's attorney asked to withdraw from the case or whether the court approved a substitution of counsel.
On December 10, 1984, the Wisconsin Court of Appeals issued its decision affirming Madyun's conviction. The court sent a copy of the decision to Madyun's attorney, but not to Madyun. The attorney did not notify Madyun of the decision. On January 28, 1985, Madyun wrote the appellate court to inquire about his appeal. On February 21, 1985, Madyun received a copy of the appellate decision, date-stamped December 10, 1984. Wisconsin requires that any party wishing to challenge an adverse appellate decision in the Wisconsin Supreme Court must petition for review within thirty days of the decision. So, by the time Madyun knew he had lost his appeal, the time to petition the supreme court for review had expired. Madyun hired new counsel and, on July 3, 1985, applied for an extension of time to petition for review. The Wisconsin Supreme Court denied his petition on the same day, stating, "Pursuant to First Wis. Nat'l Bank of Madison v. Nicholaou, 87 Wis. 2d 360, 274 N.W.2d 704 (1979), there is no provision for enlarging the time in which to file a petition for review."
On March 19, 1987, Madyun filed his petition for writ of habeas corpus. The respondent raised procedural default as a defense and the district court found in favor of the respondent. The court ruled that by failing to file a timely petition for review in the Wisconsin Supreme Court Madyun had forfeited his right to habeas review of his conviction. The court further held that Madyun had failed to show cause for or prejudice from the default, and so could not overcome the default. See Wainwright v. Sykes, 433 U.S. 72, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1972). Madyun now appeals.
Federal courts possess the power to issue writs of habeas corpus in all cases in which constitutional violations compromise the fairness of state criminal trials. The statute that governs habeas corpus relief does not recognize exceptions to that power, but requires that "[t]he court shall . . . dispose of the matter as law and justice require," 28 U.S.C. § 2243 (1982 & Supp. IV 1986), subject only to the requirement that the habeas petitioner must first exhaust all available state law remedies. Id. at § 2254(b). However, federal courts have constructed rules of waiver and forfeiture, limiting the exercise of the habeas power in the interests of comity, judicial efficiency, and the like. See, e.g., Murray v. Carrier, 477 U.S. 478, 496, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986) (cause and prejudice test lacks historical pedigree); Smith v. Murray, 477 U.S. 527, 541, 91 L. Ed. 2d 434, 106 S. Ct. 2661 (1986) (Stevens, J., dissenting) (cause and prejudice standard represents judicial lawmaking of the most unabashed form"); Wainwright v. Sykes, 433 U.S. 72, 81, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977) (Supreme Court has modified its ...