Argued September 30, 2013
Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:00-cv-06245 - Matthew F. Kennelly, Judge.
Before Wood, Chief Judge, and Bauer and Kanne, Circuit Judges.
Kanne, Circuit Judge.
Before us is a petition for a writ of habeas corpus, filed by Floyd Richardson, a convicted murderer. It is the second time his case has come before this court. The district court granted Richardson's petition on Batson grounds, a decision which the State of Illinois appeals. Richardson, in turn, appeals the district court's denial of his evidentiary/due process and ineffective assistance of counsel claims. We reverse in part and affirm in part. First, we reverse the district court's grant of habeas relief on Batson grounds. Richardson procedurally defaulted a challenge to the prosecution's use of peremptories by failing to contemporaneously object, and he has not shown cause to excuse that default. Our review is foreclosed. Next, we affirm the district court's treatment of the remaining two claims. Richardson's petition is denied.
In 1984, Floyd Richardson was convicted of armed robbery and murder. During his jury trial, the State of Illinois presented ballistics evidence and identification testimony tying Richardson to a pair of shootings that took place at South Side businesses in April 1980. A Chicago Police Department firearms examiner testified that rounds fired at both scenes came from the same gun, and eyewitnesses from both scenes identified Richardson as the gunman. That was enough to persuade the jury to convict, and the trial court sentenced Richardson to death. We discussed Richardson's trial and sentencing hearing in detail in our previous opinion in this case, see Richardson v. Briley, 401 F.3d 794, 795–98 (7th Cir. 2005), and here we address only those facts that are pertinent to the claims presently at issue.
We begin by surveying the factual and procedural history of Richardson's Batson claim, which was the basis for the district court's grant of a writ of habeas corpus and which is the subject of the State's appeal. We then provide the background to Richardson's "other crimes evidence" and ineffective-assistance-at-sentencing claims, which were denied by the district court and which are the subject of Richardson's cross-appeal.
A. Jury Selection and Related Assistance-of-Counsel Issues
The first issue-and the subject of the State's appeal-is Richardson's challenge to the State's use of peremptory strikes. Richardson's jury was selected in panels of four. The trial judge conducted voir dire and did not allow the parties to question the members of the venire. In all, sixty-one persons were questioned during jury selection. The trial judge excused twenty-four for cause. Richardson used twenty peremptory challenges, and the State used sixteen. Richardson did not object to the State's use of peremptories at trial.
1. State Appellate and Postconviction Proceedings
After sentencing, Richardson appealed to the Illinois Supreme Court. While his appeal was pending, the Supreme Court decided Batson v. Kentucky, 476 U.S. 79 (1986). Nonetheless, Richardson again failed to make an issue of the State's use of peremptories. The Illinois Supreme Court affirmed his conviction and sentence without addressing any jury selection issues. People v. Richardson, 528 N.E.2d 612 (Ill. 1988). His petitions for rehearing and for a writ of certiorari were denied.
In 1991, Richardson filed a petition for postconviction relief in state court. It was at this point, seven years after his trial concluded, that his Batson claim first appeared. He also attacked both trial and appellate counsel as constitutionally ineffective for their failure to raise the issue sooner. The State moved to dismiss the petition. The trial court found that the Batson claim was waived under existing Illinois law as a result of Richardson's failure to object to the State's use of peremptories at trial. Nonetheless, the court went on to consider the claim on the merits, in part because of its connection to the ineffective assistance issues.
In considering Richardson's Batson claim, the trial court reviewed the pleadings, the associated exhibits, and the record available to it, but did not hold an evidentiary hearing or allow for any expansion of the record. This procedure was based on the Illinois Postconviction Hearing Act, which permitted "summary dismissal" of a "nonmeritorious petition" based on a review of the petitioner's submissions and existing record materials. People v. Mahaffey, 651 N.E.2d 174, 179 (Ill. 1995).
On the record before it, the trial court found that thirteen of the sixteen jurors peremptorily excluded by the prosecution were black, but that the race of the other three stricken jurors was unclear. It further found that the record did not show what percentage of the venire members not challenged for cause were black, but that, of the fourteen jurors and alternates actually seated, eight were white and three were black, with the race of the other three unknown. The trial court also considered that fifteen of the sixteen stricken jurors shared a non-suspect common characteristic in that none had ever been the victim of a crime. It concluded-relying in significant part on the inadequacy of the existing record-that Richardson had not made out a prima facie case that the strikes were used in a discriminatory manner. It also found that neither trial counsel nor appellate counsel was constitutionally ineffective. Richardson's petition was dismissed.
Richardson appealed. The Illinois Supreme Court found that his Batson claim was waived, and declined to review it on the merits. People v. Richardson, 727 N.E.2d 362, 368–69 (Ill. 2000). In doing so, first, the court correctly observed that Batson was at least theoretically available to Richardson, because it was decided while his case was pending on direct review. Id. at 368 (citing Griffith v. Kentucky, 479 U.S. 314 (1987)). But the court then relied on a series of Illinois cases managing the retroactive preservation of Batson claims to find waiver:
However, Batson requires "a defendant's timely objection to a prosecutor's challenges." (Emphasis added.) Batson, 476 U.S. at 99. A defendant who fails to raise a Batson objection before the jury is sworn waives the issue. People v. Fair, 636 N.E.2d 455 (Ill. 1994). This rule applied under the old rule of Swain (e.g., People v. Gaines, 430 N.E.2d 1046 (Ill. 1981)) and applies to cases pending on appeal when Batson was decided (e.g., People v. Evans, 530 N.E.2d 1360 (Ill. 1988); accord People v. Holder, 506 N.E.2d 407 (Ill. 1987)). Thus, a defendant who failed to object to the prosecution's use of peremptory challenges under the old rule of Swain cannot receive on appeal the benefit of the new rule announced in Batson. People v. Pecor, 606 N.E.2d 1127 (Ill. 1992); accord Teague v. Lane, 489 U.S. 288, 297 (1989) (under Illinois law, failure to raise Swain claim at trial and on direct review waives Batson-type claim in state post-conviction proceeding).
In this case, defendant concedes, as our review of the record confirms, that his trial counsel did not object during voir dire to the prosecution's use of its peremptory challenges or include this issue in the post-trial motion. We note that while defendant's direct appeal was being briefed, this court remanded several pending cases to trial courts for Batson hearings, where the Batson issue was timely raised at trial. People v. Hooper, 506 N.E.2d 1305 (Ill. 1987) (Ryan, J., concurring) (describing court as remanding "all cases on review in which the Batson issue is viable" to circuit courts for Batson hearings); see, e.g., Evans, 530 N.E.2d 1360. Defendant has waived this claim.
Richardson, 727 N.E.2d at 368–69 (internal citations reformatted for clarity). The United States Supreme Court again denied certiorari. Richardson v. Illinois, 531 U.S. 871 (2000).
The Illinois Supreme Court also considered Richardson's ineffective assistance claim. Richardson explicitly abandoned his claim that trial counsel was ineffective for failing to raise a Batson objection, see 727 N.E.2d at 369, but continued to maintain that appellate counsel was ineffective for the same reason. The court disagreed, finding that appellate counsel could not be considered constitutionally ineffective for failing to argue a waived claim. 727 N.E.2d at 369–70.
2. Federal Proceedings
Richardson's next move, in 2000, was to file in federal court seeking a writ of habeas corpus on various grounds, including the Batson claim he unsuccessfully asserted in state postconviction proceedings. The district court conducted an evidentiary hearing and granted habeas relief on the grounds that the prosecution deceived Richardson into neglecting to call an exculpatory witness. On appeal, we reversed. Richardson v. Briley, 401 F.3d 794. We found that Richardson was not prejudiced by the prosecutor's alleged misconduct, and remanded for further proceedings on the unresolved claims. Id. at 803.
The district court turned to the Batson claim on remand. Richardson v. McCann, 653 F.Supp.2d 831 (N.D. Ill. 2008). The court held that the claim was procedurally defaulted-the Illinois Supreme Court's finding of waiver was an independent and adequate state law ground for dismissal. But the court also found that Richardson could likely establish cause for the default and actual prejudice arising therefrom.
With respect to cause, the district judge found that Richardson's default-his failure to object to the State's use of peremptories during jury selection-occurred because there was no "reasonable basis" for such an objection at the time of trial. In the alternative, if a Batson or "proto-Batson" claim was available, the district court found that both trial and appellate counsel were constitutionally ineffective for failing to raise it.
With respect to prejudice, the district judge explained that his determination would inevitably be tied to the merits, but he noted that the nature of Richardson's claim meant-if it was true, and if the prosecution really did purposefully exclude black prospective jurors from service-that he was almost certainly prejudiced. For the foregoing reasons, and because he found that Richardson had diligently attempted to expand the record during state court postconviction proceedings, the district judge concluded that an evidentiary hearing was warranted.
In a corrected memorandum opinion issued on March 13, 2012, Richardson v. Hardy, 855 F.Supp.2d 809 (N.D. Ill. 2012), the district judge granted habeas relief on Batson grounds. The court maintained its prior position with regard to the issues of procedural default and cause therefor: while the Batson claim was procedurally defaulted, the default was excused because there was no reasonable basis for it at the time of trial, or, in the alternative, because trial and appellate counsel were constitutionally ineffective for failing to raise the issue in a timely fashion.
Turning to the related questions of actual prejudice and the merits of the claim,  the district judge reviewed the expanded record. In addition to the information available to the state trial court on postconviction review, the district judge was able to ascertain that all sixteen of the prosecution's peremptory strikes were used on black jurors, and that the net effect of those strikes was to produce a petit jury that was one-third black and two-thirds white. Those figures stood in contrast to the composition of the total number of prospective jurors tendered to the prosecution, of which fifty-six percent were black and forty-four percent were white. Based on the starting point, the end point, and several observations about the path from the former to the latter, the district judge concluded that Richardson had made out a prima facie case under Batson.
Next, the district court found that the purported non-discriminatory reasons for the prosecution's use of peremptory strikes-which were largely conjectural and circumstantial, given that the prosecutors themselves could not recall their motives from over 30 years ago-could not satisfactorily explain all sixteen of the challenged strikes. Although it held Richardson to his burden of persuasion, it found that burden to be discharged and granted the writ. The State of Illinois appeals.
B. Richardson's Cross-Appeal
In granting the writ on Batson grounds, the district court also considered Richardson's remaining claims, each of which, it concluded, lacked merit. Richardson appeals the resolution of two of them: (1) his claim that the admission of certain "other crimes evidence" rendered his trial unfair; and (2) his claim that trial counsel was constitutionally ineffective during the sentencing phase. Although the district court denied relief on both grounds, it issued a certificate of appealability with respect to the latter. We expanded the certificate to include the former.
1. Other Crimes Evidence
Richardson was convicted of the April 1, 1980, armed robbery of Twin Foods & Liquors, a convenience store located on the South Side of Chicago. He was also convicted of the contemporaneous murder of George Vrabel, an employee of the store. During the trial, however, evidence of two non-charged criminal incidents was also introduced. First, the prosecution introduced evidence pertaining to an April 5, 1980, robbery and shooting at a tavern about one mile away. The prosecution tied the two 1980 robberies together with ballistics evidence and relied on identification testimony from witnesses at both crime scenes to attain a conviction. Second, the prosecution introduced evidence of an armed robbery that occurred on May 4, 1982. On that occasion, police had arrested Richardson in the vicinity of the crime because he matched a description of the perpetrator.
a. State Court Proceedings
Richardson objected to the introduction of the foregoing evidence at trial. The trial court ruled that the April 5, 1980, evidence was admissible for the purpose of proving the defendant's identity and that the May 4, 1982, evidence was admissible to explain the circumstances of Richardson's arrest. On direct appeal, Richardson renewed his objection. The Illinois Supreme Court acknowledged the dangers attendant to the introduction of other crimes evidence, but found that the April 5th evidence was "highly relevant and admissible" for the purpose of identifying Richardson as the April 1st shooter. 528 N.E.2d at 617. The Illinois Supreme Court did agree with Richardson that there was no justifiable basis for the admission of the May 4th evidence, but it concluded that the erroneous admission was harmless. Id. at 619. Richardson did not continue to pursue his other crimes evidence claims in state postconviction proceedings, and the postconviction opinions of both the trial court and the Illinois Supreme Court contain no reference to it.
b. Federal Court Proceedings
The district court refused to grant habeas relief based on Richardson's other crimes claim in its corrected memorandum opinion. Richardson, 855 F.Supp.2d at 814–17. Because the Illinois Supreme Court decided the issue on the merits on direct appeal, the district court asked whether that court's decision was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court of the Untied States. 28 U.S.C. § 2254(d)(1). The district court found that it was not. Although the Federal Rules of Evidence do limit the introduction of evidence of uncharged criminal behavior, see Fed. R. Evid. 404(b), there is no federal constitutional or statutory right to a state-court trial free of such evidence, even where that evidence is used to show propensity. Relief, therefore, could only be available under a general ...