Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 3580--John W. Darrah, Judge.
Before Easterbrook, Ripple, and Manion, Circuit Judges.
The opinion of the court was delivered by: Easterbrook, Circuit Judge
After agreeing to sell marijuana to two customers, John Szabo appeared at the site appointed for the exchange with a knife, a gun, and a henchman, but no marijuana. He stole the $700 that the customers had brought and murdered both of them to avert any risk that they would identify him. Szabo has been sentenced to death for these planned killings. The first capital sentence was reversed by the Supreme Court of Illinois because of errors in the hearing, see People v. Szabo, 94 Ill. 2d 327, 447 N.E.2d 193 (1983) (Szabo I), but the second was affirmed. See People v. Szabo, 113 Ill. 2d 83, 497 N.E.2d 995 (1986) (Szabo II). Two efforts to obtain collateral relief in the state courts were unavailing. See People v. Szabo, 144 Ill. 2d 525, 582 N.E.2d 173 (1991) (Szabo III); People v. Szabo, 186 Ill. 2d 19, 708 N.E.2d 1096 (1998) (Szabo IV). But in this proceeding under 28 U.S.C. §2254 the district court issued a writ of habeas corpus after concluding that Szabo's lawyer at his second sentencing had rendered ineffective assistance by failing to call prison guards as witnesses to inform the jurors of Szabo's good conduct in prison between 1979 (when he was convicted) and 1984 (when the resentencing occurred). See Szabo v. Snyder, 2002 U.S. Dist. LEXIS 4964 (N.D. Ill. Mar. 21, 2002), relying on Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1991), and Kubat v. Thieret, 867 F.2d 351, 369 (7th Cir. 1989). The state's only argument on appeal is that the ineffective-assistance claim was forfeited in the course of Szabo's initial collateral attack--as the Supreme Court of Illinois held in Szabo IV. By negative implication the state concedes that if the claim has been preserved, then Szabo is entitled to a third sentencing hearing. We shall do likewise and ask only whether the claim remains open to decision.
In Szabo III Szabo raised, but did not develop, an ineffective-assistance claim. His petition for collateral relief, filed pro se, challenged the adequacy of counsel's work in the second sentencing hearing. The state judge appointed a lawyer to represent him, but that lawyer neither added to the claims made in the pro se petition nor produced affidavits to back them up. Because the record did not reveal what testimony the guards would have given, had they been called at the resentencing, the judge concluded that Szabo had not established any constitutional violation. On appeal in Szabo III his new lawyer did not contest this conclusion; instead he contended that, as a matter of state law, Szabo should be entitled to another hearing with better post-conviction counsel who would supplement his pro se pleadings and secure the essential affidavits from the guards. The Supreme Court of Illinois rejected that position.*fn2 Szabo then filed a second state collateral attack, which was dismissed as barred by the adverse outcome of the first.
Under Illinois law a prisoner is entitled to only one collateral attack unless that proceeding is so defective because of judicial shortcomings that justice requires a second opportunity. See, e.g., People v. Flores, 153 Ill. 2d 264, 273-74, 606 N.E.2d 1078, 1083 (1992). Deficiencies attributable to errors and neglects of the petitioner's lawyer do not justify a second opportunity. Id. at 153 Ill. 2d 276, 606 N.E.2d 1084. In Szabo IV the Supreme Court of Illinois held that Szabo's failure to develop an ineffective-assistance claim in Szabo III was the fault of his lawyer; the state's judicial system had offered an opportunity, which counsel had not used. Consequently, Szabo IV held, the state's forfeiture rules blocked Szabo's effort to make a better ineffective-assistance claim in a new proceeding.
Relying on the holding of Szabo IV, the state argued that Szabo's sixth-amendment claim was forfeited during the collateral attack that culminated in Szabo III. All the district judge said in response is:
Petitioner's principal ground for relief . . . is properly before this Court. The fact that some of the claims were not raised in all four appeals to the Illinois Supreme Court does not mean that the claims are procedurally defaulted.
Yet the state had not argued that a prisoner must make an ineffective-assistance claim in every appeal. Neither the Attorney General (representing Illinois) nor the state's highest court faulted Szabo for omitting this contention in Szabo II: it required development by evidence not then in the record. Nor would anyone have faulted Szabo if he had developed the claim in Szabo III and then sought to present a different theory in a successive collateral attack. The state's contention--and the holding of Szabo IV--is that the claim was forfeited because it was not developed in Szabo III, when it should have been. The district judge did not come to grips with that contention. A state is entitled to treat as forfeited a proposition that was not presented in the right court, in the right way, and at the right time--as state rules define those courts, ways, and times. See Wainwright v. Sykes, 433 U.S. 72 (1977). Failure to comply with the state's procedural rules furnishes an independent and adequate state ground of decision that blocks federal collateral review. See Harris v. Reed, 489 U.S. 255 (1989).
No one could doubt that this forfeiture decision is independent of federal law, as that term is used in collateral-review jurisprudence. See Stewart v. Smith, 122 S. Ct. 2578 (2002); Ake v. Oklahoma, 470 U.S. 68 (1985). Szabo does question whether the ruling is adequate to block federal review. To be adequate, a state's procedural rule must be proclaimed in advance and regularly followed. See, e.g., Lee v. Kemna, 534 U.S. 362 (2002); Johnson v. Mississippi, 486 U.S. 578 (1988); Liegakos v. Cooke, 106 F.3d 1381, rehearing denied, 108 F.3d 144 (7th Cir. 1997). Ever since 1964 the law on the books in Illinois has specified that a prisoner is entitled to only one post-conviction proceeding. 725 ILCS 5/122-3. The decision in Szabo IV enforcing this norm cannot be condemned as retroactive and thus inadequate. Nor is it "inadequate" as irregular, freakish, or invoked in an unprincipled way in order to discriminate against the federal theory of relief.
On appeal in Szabo III, Szabo contended that Ill. Sup. Ct. R. 651(c) required his post-conviction lawyer to do more than he had done to develop the ineffective-assistance contention. The Supreme Court of Illinois rejected that proposition as a matter of state law but had second thoughts, and in People v. Johnson, 154 Ill. 2d 227, 609 N.E.2d 304 (1993), held that post-conviction counsel must do more to satisfy Rule 651(c) than Szabo's post-conviction counsel had done. Szabo IV held that Johnson does not give Szabo a second chance. If we had to decide whether Johnson shows that the approach that Szabo III took to the interpretation of Rule 651(c) were "regularly followed" we would need to decide whether Johnson was a change in the law, or whether instead Szabo III was an aberration in the application of settled law. (That question divided the Supreme Court of Illinois four to three in Szabo IV, with the majority taking the view that Johnson had altered the law in a way that did not apply retroactively to Szabo.)
But it is not necessary to enter this arena, because the forfeiture does not stem from a contestable interpretation of Rule 651(c) by the state's supreme court. After all, that court concluded that counsel had complied functionally with Rule 651(c) and that formal noncompliance (the lack of a certificate) was harmless. Nor does forfeiture lie in appellate counsel's failure to pursue a sixth-amendment claim on appeal in Szabo III--for by then it was too late, and the only sensible avenue was the road taken, a request for a new hearing at the trial level, where the forfeiture had occurred. The root problem was counsel's failure on the initial collateral review to develop the sixth-amendment claim by adducing evidence that failure to call the guards to the stand during the second sentencing hearing impaired Szabo's chance of obtaining lenity. That depended on what the guards would have said if called--and as the record was silent, Szabo's claim was sunk. Failure to develop the record with essential evidence invariably means forfeiture. Rule 651(c) played a leading role on appeal in Szabo III because Szabo used his lawyer's (asserted) noncompliance with his duties under that rule as an excuse that would permit him to start anew. In other words, Szabo contended that the state had not furnished post-conviction counsel of the quality that the state had promised (through Rule 651(c)) to supply. He asked the Supreme Court of Illinois in Szabo III to use state law to give him a new hearing with a better lawyer who would procure the vital evidence then missing from the record. The state decided that he was not entitled to that relief--that the legal services he received had met the state's standards of quality.
Let us suppose that this is wrong (as the three dissenting justices concluded in Szabo IV) and that Szabo did not enjoy the high standard of legal services that Illinois seeks to provide on post-conviction review. Still, all that would mean is that Szabo did not receive the effective assistance of post-conviction counsel--and it is settled as a matter of federal law that poor post-conviction lawyering does not relieve a prisoner of what is otherwise a forfeiture under state law. See, e.g., Coleman v. Thompson, 501 U.S. 722, 752-57 (1991); Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). See also 28 U.S.C. §2254(i) ("The ineffectiveness or incompetence of counsel during Federal or State collateral post-conviction proceedings shall not be a ground for relief in a proceeding arising under section 2254."). That is to say, ineffective assistance of post-conviction counsel does not supply "cause" for the cause-and-prejudice formula under which federal courts sometimes entertain claims that were not properly presented to the state courts. Szabo therefore cannot show a sufficient "cause" for any forfeiture. Because the last state court to consider the issue unambiguously invoked a forfeiture doctrine, the lack of evidence at the trial level in Szabo III supplies an independent and adequate state ground of decision. Szabo's ineffective-assistance claim was not preserved in state court and cannot furnish the basis for a writ of habeas corpus.
Szabo offers an additional argument in support of his judgment: that during the second sentencing the judge violated the Confrontation Clause by admitting transcripts of five witnesses' testimony from the first sentencing, even though these witnesses were not shown to be unavailable at the time of the second sentencing. In Szabo II the Supreme Court of Illinois held that failure to make a post-sentencing motion for a new hearing forfeited this contention, see 497 N.E.2d at 999, and the district judge agreed. Szabo contends that the state's forfeiture decision was "inadequate" as a matter of federal law because Szabo II applied to him a doctrine that did not become firmly established in Illinois until after the second sentencing. The state defends the Supreme Court's forfeiture decision in Szabo II and adds that in its view the question is not properly before us in the first place, because Szabo did not seek or obtain a certificate of appealability authorizing him to present this issue for appellate decision.
Since 1996 both state and federal prisoners have needed certificates of appealability to obtain appellate review of adverse decisions in collateral attacks. 28 U.S.C. §2253. But the statute deals only with appeals by prisoners; it does not mention arguments by prisoners as appellees offered in support of relief they have obtained. Section 2253(c)(1) begins: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--") (emphasis added). Szabo has not taken an appeal, nor did he need to do so. An appellee may defend his judgment on any ground properly preserved in the district court. Compare Massachusetts Mutual Life Insurance. Co. v. Ludwig, 426 U.S. 479 (1976), with El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 479-81 (1999). Szabo does not ask for additional relief, so he was entitled to proceed exactly as he has done. Two opinions--Ainsworth v. Woodford, 268 F.3d 868 (9th Cir. 2001), and Williams v. Cain, 125 F.3d 269 (5th Cir. 1997)--assume that a certificate of appealability is needed for a prisoner's cross-appeal, and this is a plausible understanding of §2253(c) (though neither court discussed the question). But no court has demanded that a prisoner obtain a certificate of appeal-ability in order to present an extra issue in a case already before the court on the state's appeal, and we are content to apply §2253 as it is written. It serves a gatekeeping function, see Ramunno v. United States, 264 F.3d 723 (7th Cir. 2001), and once a case is properly before the court of appeals--for state and federal governments need not obtain certificates of appealability, see Fed. R. App. P. 22(b)(3)--there are no remaining gates to be guarded.
Szabo II, which held that Szabo failed to preserve his Confrontation Clause contention, is incontestable as a matter of state law; the Supreme Court of Illinois has resolved any dispute about what state law required Szabo to do. Whether this decision is "adequate" is, however, a question of federal law. Relying on Liegakos, Szabo contends that the decision is inadequate because the requirement of a motion for a new sentencing hearing was not announced until after it was too late for his counsel to make such a motion. The parties have engaged in an extended debate about what Illinois required along these lines during the mid-1980s. We think it unnecessary to resolve this arcane procedural point, because Szabo's legal position is defective on the merits. He contends that under the Confrontation Clause the transcripts of the five witnesses' testimony at the first sentencing could be used only if they were unavailable at the time of the second sentencing hearing--and that the record does not demonstrate unavailability. Yet the Supreme Court has held that the Confrontation Clause does not apply to capital sentencing. It applies through the finding of guilt, but not to sentencing, even when that sentence is the death penalty. See Williams v. New York, 337 U.S. 241 (1949).
Since Gregg v. Georgia, 428 U.S. 153 (1976), and Lockett v. Ohio, 438 U.S. 586 (1978), the law of capital sentencing has changed considerably. Nonetheless, the Supreme Court of the United States has never questioned the precise holding of Williams v. New York, and we are not entitled to do so in this collateral attack. Szabo's sentence became final in 1986, and post-1986 developments could apply on collateral review only under rare circumstances. See Teague v. Lane, 489 U.S. 288 (1989); Tyler v. Cain, 533 U.S. 656 (2001). See also 28 U.S.C. §2254(d)(1) (to obtain collateral relief a state prisoner must show that his claim "resulted in a decision that was contrary to, or involved an unreasonable ...