Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 06 C 3241-Elaine E. Bucklo, Judge.
The opinion of the court was delivered by: Evans, Circuit Judge.
ARGUED SEPTEMBER 28, 2007
Before ROVNER, WOOD, and EVANS, Circuit Judges.
If a 42-year-old man wants to change his identity and fly through the remainder of his life under the radar screen with a fake name, what kind of name would he be likely to select? Certainly he would want a common name, like Walker, Washington, White, or Williams,*fn1 to name just a few that begin with the same letter. But Donald Calloway, the appellant in this federal habeas case, did not follow the conventional wisdom: his newly adopted name (in 1979) was Robert Ducks.*fn2 Twenty two years later, after "Robert Ducks" was indicted in federal court, "Donald Calloway" came back from the past. And it was quite a past.
In March of 1979, Calloway left a bar with his ex-wife, Margie Murray. The next day Murray's dead body was found behind an abandoned house in Harvey, Illinois. The bullet fragments investigators found in her skull came from a .32 caliber handgun later found in her home. A little later, her van turned up in Houston, Texas. Calloway disappeared into thin air, and an arrest warrant was issued for him in April of 1979.
In 2001,*fn3 "Robert Ducks" was indicted in federal court in Chicago on mail fraud charges. While the case was pending, but apparently after "Ducks" appeared in court a few times, a fingerprint check indicated that he was not who he claimed to be. In fact, he was Donald Calloway. After the Harvey, Illinois, police were notified, Calloway was arrested and charged with the murder of Ms. Murray. Originally, "Ducks" denied that he was Calloway. Later, he admitted his true identity. He also gave two inconsistent statements to the police. But in both, he claimed that Murray pulled a gun from her purse, that a struggle followed, and that the gun discharged, hitting Murray. At Calloway's state murder trial, Dr. Shaku Teas testified as to the autopsy she performed on Murray's body. She found no stippling, i.e., "specks of gun powder embedded in the skin," which she said meant that the shot was fired from at least one foot away. She also testified that the angle of the gunshot was not consistent with a struggle. On the other hand, Calloway's expert said that a wig Murray wore might have prevented stippling and that the evidence was not inconsistent with a struggle. The jury rejected the murder charge but convicted Calloway on a lesser charge of voluntary manslaughter.
In the federal case against him, which was resolved before the state charge was tried, Calloway entered a guilty plea to mail fraud. The mail fraud conviction played a role in his sentencing in state court for manslaughter. The state trial judge held that the federal mail fraud conviction was equivalent to an Illinois conviction for theft by deception, which made Calloway eligible for an extended sentence. The maximum sentence for voluntary manslaughter, without the extension, was 7 years. With it, the maximum increased to 14 years. He received a sentence of 12 years.
On his direct appeal from the voluntary manslaughter conviction, Calloway argued, among other things, that the trial court violated his due process rights by refusing to instruct the jury on involuntary manslaughter*fn4 and violated his Sixth Amendments rights-as clarified by Apprendi v. New Jersey, 530 U.S. 466 (2000)-by determining that his federal mail fraud conviction was equivalent to an Illinois conviction for theft by deception. The state appellate court rejected his claims and affirmed the conviction and sentence. The Illinois Supreme Court denied leave to appeal and the United States Supreme Court denied certiorari.
Calloway then filed the present petition for a writ of habeas corpus. The district court denied the petition but granted a certificate of appealability. In his appeal, he again claims that the state jury should have been instructed on involuntary manslaughter and that his rights under Apprendi were violated because the judge, not the jury, made the findings underlying the extended sentence.
Under the Antiterrorism and Effective Death Penalty Act of 1996, Calloway can obtain relief in federal court only if the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1) and (2). A state court decision is "contrary to" clearly established federal law if the court "applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or if the court "decides a case differently than [the Supreme Court] has done on a set of materially indistinguishable facts."
Williams v. Taylor, 529 U.S. 362, 405 (2000); Bell v. Cone, 535 U.S. 685, 686 (2002). A decision of a state court which correctly identifies a governing legal rule established by the Court, but applies it unreasonably to the facts of a particular case, qualifies as a decision involving an unreasonable application of clearly established Federal law.
At first glance, it might seem as if the meaning of "clearly established law" should be self-evident and well-established, but even a brief look at a few cases shows it is not. For instance, last term the Court divided 5 to 4 in two Texas death penalty cases over the issue of what exactly was clearly established as to jury consideration of mitigating evidence. See Abdul-Kabir v. Quarterman, 127 S.Ct. 1654 (2007), and Brewer v. Quarterman, 127 S.Ct. 1706 (2007). The majority found that in both cases, the law regarding the presentation of mitigating evidence was clearly established. Chief Justice Roberts, dissenting in both, did not see the Court's prior precedents as clear at all. He thought the Court gave itself "far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to 'clearly established' federal law." Abdul-Kabir, at 1676; Brewer, at 1715.
Relevant to the present case are discussions of how far principles of clearly established law can be extended. In determining whether a juvenile was in custody for Miranda purposes, the court of appeals had relied on the Supreme Court's emphasis on the importance of juvenile status in other contexts and concluded that youth should be a factor in the Miranda analysis. Alvarado v. Hickman, 316 F.3d 841 (9th Cir. 2002). Over three dissents, the Court rejected that attempt to meld two lines of cases into clearly established law. Yarborough v. Alvarado, 541 U.S. 652 (2004). More recently, Carey v. Musladin, 127 S.Ct. 649 (2006), involved a state court decision which held that buttons displaying the victim's image, worn by the victim's family during trial, did not deny the defendant his right to a fair trial. The court of appeals determined that the state court decision was contrary to clearly established law set out in Estelle v. Williams, 425 U.S. 560 (1976), and Holbrook v. Flynn, 475 U.S. 560 (1986). Musladin v. Lamarque, 427 F.3d 653 (2005). The Supreme Court disagreed. The issue in Williams involved requiring a defendant to wear prison clothing at trial, and in Flynn, at issue was the presence of four uniformed state troopers immediately behind the defendant. These cases, the Court explained, did not provide clearly established law for Musladin's claim because both involved "state-sponsored courtroom practices" and that, on the other hand, the "spectator conduct" to which Musladin objected was "an open question in our jurisprudence." Justices Stevens, Kennedy, and Souter wrote separate concurrences in which each found the opinion's view of clearly established law to be overly restrictive.
It is in this context that we consider whether there is clearly established Supreme Court precedent for Calloway's claim that he was entitled to a jury instruction on the additional (recall, the jury already had one lesser offense option on the table) crime of involuntary manslaughter. We find there is not. It is true that in Beck v. Alabama, 447 U.S. 625 (1980), the Court concluded that the defendant was entitled to such an instruction. However, Beck was a capital case, and in a footnote the Court said, "We need not and do not decide whether the Due Process Clause would require the giving of such instructions in a non-capital case." At 638 n.14. Throughout the decision it is clear that the risk of a wrongful conviction for a capital crime informed the result. The ...