Andrew Wesley v. Tarry Williams
Filing
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. William J. Bauer, Circuit Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6776073-1] [6776073] [15-2253]
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 26, 2016
Decided August 17, 2016
Before
WILLIAM J. BAUER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐2253
ANDREW WESLEY,
Petitioner‐Appellant,
v.
RANDY PFISTER, Warden,
Respondent‐Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 12‐CV‐02226
Joan H. Lefkow,
Judge.
O R D E R
Andrew Wesley appeals the denial of his habeas petition under 28 U.S.C. § 2254.
He was convicted in Cook County Circuit Court of first‐degree murder for shooting a
man who was involved in a heated argument with a fellow drug dealer outside a liquor
store. Wesley appealed his conviction in state court on several grounds, all of which
were denied. He then filed a pro se petition with the state court for post‐conviction
relief based on ineffective assistance of counsel and other grounds. After his post‐
conviction petition in state court was also denied, and that denial was affirmed on
appeal, he petitioned the district court for habeas relief based on ineffective assistance
of counsel. Wesley asserted that his counsel was ineffective because he 1) failed to object
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to the admission of certain hearsay statements, 2) failed to use a peremptory challenge
to strike an allegedly biased juror, and 3) failed to investigate and call certain alibi
witnesses. The district court denied his petition on each ground and certified only the
second issue as appealable: whether his counsel was ineffective for failing to challenge
the juror. Wesley appeals. Because Wesley has not shown that the state court’s decision
involved an unreasonable application of federal law or that it was based on an
unreasonable determination of the facts, we affirm the district court’s denial of his
habeas petition.
I. Background
Because the district court narrowed the issues on appeal, the only facts of
relevance are those concerning voir dire. While questioning the venire, the district judge
asked potential juror Keisha A. if there was anything about the case that bothered her
such that she could not be impartial. She said yes, that she lost her relative in a similar
manner.1 However, she assured the judge that she could be impartial. The defense
counsel then questioned her. He inquired into the circumstances of her relative’s death,
the subsequent trial, and that trial’s outcome. He then asked her: “If you were picked on
this jury would you set that aside and decide this case on the facts and the law that
apply to this case or would you still remember that?” Appellant Sep. App. at 20. To
which she answered: “It’s hard to say. I would try to listen.” Id. The defense counsel
then asked: “Can you be sure that you will set that aside or not?” Id. She replied: “I
can’t be sure.” Keisha A. was not questioned further.
In chambers, the defense counsel moved to strike Keisha A. for cause because she
did not state unequivocally that she could set aside her relative’s case. The prosecutor
pointed out that the defense counsel had asked a compound question, so that it was
unclear from her answer whether she was saying she could not be impartial or she
could not forget the events of her relative’s case. The court found that, given her
answers to the judge’s previous questions, she could be fair and impartial and so denied
the motion to strike for cause. The district court did strike two other potential jurors for
cause at the defense counsel’s motion.
According to Wesley’s affidavit submitted with his state post‐conviction petition,
he directed his counsel to use a peremptory challenge against Keisha A. and his counsel
1 Keisha A. said she lost “a close relative to [her] kind of like [her] brother to a similar charge.” Appellant
Sep. App. at 15.
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agreed to do so. His counsel did use a peremptory challenge to strike a juror, but it was
not Keisha A. In fact, although Wesley had five peremptory challenges, see ILCS S. Ct.
R. 434(d), his counsel did not use any to strike her. Keisha A. was ultimately seated on
Wesley’s jury, which convicted him of murder.
II. Discussion
We review the district court’s findings of fact for clear error and its rulings on
questions of law, and mixed questions of law and fact, de novo. Suh v. Pierce, 630 F.3d
685, 690 (7th Cir. 2011). We can grant habeas relief to a state prisoner only if “he is in
custody in violation of the Constitution or laws or treaties of the United States.” 28
U.S.C. § 2254(a). Since Wesley’s claims have already been adjudicated on the merits in
state court proceedings, we can grant relief only if the state court decision 1) “was
contrary to, or involved an unreasonable application of clearly established Federal law,
as determined by the Supreme Court of the United States,” or 2) “was based on an
unreasonable determination of the facts.” 28 U.S.C. § 2254(d). The relevant state court
decision is that of the last state court to address the claim on the merits. Garth v. Davis,
470 F.3d 702, 710 (7th Cir. 2006). Here, that decision is the state appellate court’s opinion
affirming the trial court’s dismissal of Wesley’s ineffective assistance of counsel claim.
At the outset, we note: “There is no constitutional right to a peremptory
challenge. Rather, peremptory challenges are one time‐honored means to protect the
constitutional right to an impartial jury. ... [A] possible error in administering
peremptory challenges that did not deny an impartial jury does not warrant a new
trial.” Jimenez v. City of Chicago, 732 F.3d 710, 715–16 (7th Cir. 2013). Wesley has not
shown that he was denied an impartial jury.
The state courts determined that Keisha A. was unbiased. We must review state
trial and appellate court findings deferentially. Sumner v. Mata, 449 U.S. 539, 546–47
(1981). “[A] determination of a factual issue made by a State court shall be presumed to
be correct. The applicant shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The trial court
determined that Keisha A.’s answers expressing uncertainty did not rise to the level
where a strike for cause was appropriate, given that she previously stated that she
could be fair and impartial notwithstanding her experience. When denying his post‐
conviction petition, the court found no evidence to support Wesley’s claim that Keisha
A.’s hesitation to serve on the jury affected the outcome at trial in any way. After
reviewing the same record, the state appellate court found that Wesley failed to show
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that he was prejudiced by his counsel’s decision not to exercise a peremptory challenge
against Keisha A. It found the evidence against Wesley was more than sufficient to
prove him guilty beyond a reasonable doubt, and the court could not say that the
outcome at trial would have been different without Keisha A. These factual
determinations are presumed correct, and Wesley has not rebutted that presumption by
clear and convincing evidence.
The district court found that Keisha A.’s responses did not compel the conclusion
that she was biased. This finding was not clear error. Keisha A.’s expression of doubt
was in response to the defense counsel’s compound question of whether she would
decide Wesley’s case on the facts and the law, or whether she would remember the
unrelated case of her relative’s murder. Keisha A. was not required to forget her past
experiences; she was required to “set aside any opinion she might hold, relinquish her
prior beliefs, or lay aside her biases or her prejudicial personal experiences.” United
States v. Allen, 605 F.3d 461, 465–66 (7th Cir. 2010). She assured the judge that she would
do so. She had previously answered unequivocally to the court’s questions that she
understood that the case of her relative’s murder had nothing to do with Wesley; that
she could judge his case based on the evidence and law; that she would not hesitate to
sign a not guilty verdict if the state did not carry its burden; and that she would follow
the judge’s instructions. The court’s decision was not based on an unreasonable
determination of the facts. See id. at 466–67 (upholding district court’s denial of defense
counsel’s motion to excuse potential juror for cause on similar record).
Neither did the state court’s decision involve an unreasonable application of
clearly established federal law. The federal law at issue here, Strickland v. Washington,
466 U.S. 668 (1984), required Wesley to show that 1) his counsel’s performance fell
below an objective standard of reasonableness, and 2) but for his counsel’s errors, there
is a reasonable probability that the outcome of the trial would have been different. Id. at
688, 694. The “bar for establishing that a state court’s application of the Strickland
standard was ‘unreasonable’ is a high one.” Murrell v. Frank, 332 F.3d 1102, 1111 (7th
Cir. 2003).
Wesley’s strongest argument is that the state appellate court misapplied the
Strickland standard because it stated: “while Keisha A. expressed she could not be sure
she could set aside her past experiences when deciding defendant’s case, she did not
indicate a clear and strong bias against the defendant in her voir dire responses.”
Appellant Br. at A42 (emphasis added). Wesley argues that the appellate court’s ruling
was unreasonable because federal law does not require a showing of “clear and strong
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bias” before a juror is deemed sufficiently biased to prejudice a defendant.2 Wesley,
however, is reading the appellate court’s statement out of context. The state appellate
court was not reviewing the decision to exclude Keisha A. de novo. It was reviewing the
post‐conviction court’s ruling that Wesley was not prejudiced by Keisha A.’s inclusion
on the jury, and it was affording the trial court the necessary deference that must be
given for determinations of juror impartiality. See People v. Johnson, 594 N.E.2d 253, 263
(Ill. 1992). The court’s statement, properly read, is that Keisha A.’s responses did not
indicate a bias strong enough to overcome the deference that must be given to trial
court determinations of juror impartiality. See Mu’Min v. Virginia, 500 U.S. 415, 428
(1991) (“A trial court’s findings of juror impartiality may be overturned only for
manifest error.” (internal quotation marks omitted)).
III. Conclusion
Wesley has not shown that the state court’s decision involved an unreasonable
application of federal law or that it was based on an unreasonable determination of the
facts. Accordingly, we AFFIRM the district court’s denial of Wesley’s habeas petition.3
2 The district court acknowledged this argument in passing but did not address it. Instead, it found that
Wesley failed to show that his counsel’s decision not to use a peremptory challenge was not a matter of
trial strategy, and therefore not deficient performance.
3 Wesley argues that he should be granted an evidentiary hearing on remand to establish that his
counsel’s decision not to use a peremptory challenge to strike Keisha A. was not a strategic decision, but
deficient performance. He also argues that this would allow the district court to consider the issue of
prejudice in the first instance, since the district court decided his claim on the issue of performance only.
However, the state appellate court found that he was not prejudiced by his counsel’s decision, and we
hold that that decision was not unreasonable. His request for an evidentiary hearing is therefore moot.
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