Brown v. Finnan

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3151

T ERRY C. B ROWN,

Petitioner-Appellant,

v.

A LAN F INNAN,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 2:08-cv-00010-LJM-TAB—Larry J. McKinney, Judge.

A RGUED O CTOBER 30, 2009—D ECIDED M ARCH 17, 2010

Before C UDAHY, P OSNER, and R OVNER, Circuit Judges.

C UDAHY, Circuit Judge. Having been convicted of mur-

dering Charles Young, Jr. and Robert Hunter in 2000,

Terry C. Brown was ultimately sentenced to serve two

consecutive terms of 55 years. Brown subsequently filed

a petition for post-conviction relief, claiming that he

had received ineffective assistance of counsel at both the

trial and appellate levels. His petition focused on an in-

court announcement by one victim’s mother to the effect

2 No. 08-3151

that “the situation [was] racist” and her further proclama-

tion on the courthouse steps that the courthouse should

be treated similarly to the World Trade Center and

bombed. Brown’s attorney declined to request a hearing

to determine the impact of these statements on the jury.

Nor did his appellate counsel raise the issue on appeal.

Brown now contends that his counsels’ failure to

address this issue violated the Sixth Amendment. He

argues further that the Indiana courts’ denial of his

petition for post-conviction relief is contrary to well-

established principles of federal law, as established by the

U.S. Supreme Court in Strickland v. Washington, 466 U.S.

668 (1984). He therefore asserts that this Court should

grant his petition for a writ of habeas corpus.

We decline to do so. To prevail on an ineffective assis-

tance of counsel claim under Strickland, a petitioner must

demonstrate that his counsel’s assistance was objectively

unreasonable and resulted in a substantial risk of preju-

dice. Brown can meet neither requirement. The prejudicial

impact of the statements here on the defendant’s right

to a fair trial is attenuated. Since both Brown and his

victim, Young, were African-American, it is far from clear

how a juror would perceive the assertion of racism in a

manner necessarily injurious to Brown. While obviously

serious, a distraught parent’s threat of bombing the

courthouse does not obviously bear on the guilt or inno-

cence of the defendant. Moreover, there is no evidence

that this out-of-court statement was heard by any juror.

Finally, though no less important, there may be good

reason not to draw explicit attention to such statements.

No. 08-3151 3

Apt counsel might conclude that her client’s cause

would best be promoted by not focusing on issues of

tenuous significance to her client’s guilt or innocence. For

these reasons, Brown’s counsels’ performance was not

objectively unreasonable. Nor did his attorneys’ conduct

result in a substantial risk of prejudice. For these

reasons, and the reasons that follow, we deny Brown’s

petition.

I. BACKGROUND

On the afternoon of July 16, 2000, two police officers on

bike patrol heard gunfire and shortly thereafter observed

Terry C. Brown run into and then hastily depart a barber-

shop. Brown was carrying a white document and an

unidentified object under his arm. After the officers

discovered Charles Young, Jr. lying on the ground with a

gunshot wound in his neck, they split up. One officer gave

chase and successfully apprehended Brown. The other

entered the barbershop and found Robert Hunter, who

had been shot in the head.

When arrested, Brown had blood on his clothing,

though he did not have possession of the item with which

he had been seen exiting from the barbershop. An

ensuing search of the immediate area uncovered a gun

sight and a white piece of paper, in addition to a bag,

which contained a .38-caliber revolver and a 9mm semiau-

tomatic. One of the firearms had six empty shell casings

in it, while the other was loaded with a round in the

chamber and one round missing. The paper appeared to

have blood on it.

4 No. 08-3151

On the same day he was arrested, Brown was charged

with the murder of Young and Hunter. Two instances of

note occurred during his ensuing trial. During the State’s

presentation of evidence, Corey Young, the mother of

victim Charles Young, Jr., announced from the gallery that

“the situation [was] racist.” Although Brown and his

attorney noticed the remark, the judge did not hear it and

testimony continued without interruption. Brown’s

attorney did not bring the matter to the court’s attention.

It is unclear whether any juror perceived Ms. Young’s

statement.

The second incident occurred the same day on the

courthouse steps. Ms. Young apparently stated that “this

courthouse should be treated similar to the World Trade

Center and the whole place should be bombed.” There

is no evidence that any juror was privy to this remark.

When apprised of these statements, and outside the

presence of the jury, the trial judge impressed upon the

spectators in the gallery that he would not tolerate such

comments. He dismissed Ms. Young from the remainder

of the trial. The trial judge did not take any further

action, such as holding a hearing to determine the effect, if

any, of the statements on the jury. Neither the defense

counsel nor the prosecutor requested such a course of

action. The rest of the trial proceeded without incident.

On September 19, 2001, the jury found Brown guilty

of both murders. Consistent with the jury’s recommenda-

tion, the trial court sentenced him to two concurrent

sentences of life in prison without parole. On appeal,

the Indiana Supreme Court remanded the case for

No. 08-3151 5

resentencing. On remand, the trial court imposed the

same sentence. Brown again appealed to the Supreme

Court of Indiana. Finding the trial court’s sentencing

order to be inadequate, the Indiana Supreme Court

ordered a remand with instructions to impose two con-

secutive sentences of 55 years. Brown v. Finnan, 783

N.E.2d 1121, 1126-29 (Ind. 2003). On neither appeal did

Brown’s attorney raise the court’s failure to hold a hearing

to consider the impact of Ms. Young’s statements on

the jury.

On January 2, 2004, Brown filed a pro se petition for post-

conviction relief, which he amended on August 21, 2006.

In pertinent part for our consideration, Brown’s petition

provided that he was denied effective assistance of

both trial and appellate counsel. He contended that his

trial counsel failed to act as counsel guaranteed by the

Sixth Amendment due to his failure to request a hearing

following Ms. Young’s comments. He argued that his

appellate attorney’s performance was similarly deficient

for not raising this issue on appeal. Brown further asserts

that both counsels’ deficient performances resulted in

prejudice.

The Howard County Circuit Court denied Brown’s

petition for post-conviction relief, finding that Brown

could only speculate as to whether any juror actually

heard Ms. Young’s comments. It also found that it was

unclear what her in-court remark even referred to. The

Indiana Court of Appeals affirmed. Brown v. State, 874

N.E.2d 651, 2007 WL 2917084 (Ind. App. Oct. 9, 2007). In

applying the Strickland standard, which requires a

6 No. 08-3151

showing of both deficient performance and prejudice,

the appellate court declined to examine whether

Ms. Young’s out-of-court statement was prejudicial

because there was no showing that any juror either

heard the remark or was made aware of it. Expressing

skepticism as to whether any juror heard Ms. Young’s in-

court remark, the Indiana Court of Appeals also ob-

served a lack of evidence pertaining to the statement’s

prejudicial effect. This being the case, the court expressed

doubt whether the trial court would have granted a

request for a hearing.

Brown then filed a petition for a writ of habeas corpus

with the United States District Court for the Southern

District of Indiana. Since the district court found that

the Indiana Court of Appeals correctly recognized and

applied the Strickland standard, it denied Brown’s peti-

tion. We granted his motion for a certificate of appeal-

ability on September 30, 2008. Brown now appeals the

decision of the district court not to grant his petition

for a writ of habeas corpus. For the reasons explained

below, we affirm.

II. DISCUSSION

The standard by which we review a state court’s deci-

sion on a federal constitutional issue is a familiar one.

Under the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), we may grant habeas relief only if

the state’s adjudication of the issue: (1) resulted in a

decision that was contrary to, or involved an unreasonable

No. 08-3151 7

application of clearly established federal law, as deter-

mined by the Supreme Court of the United States or

(2) resulted in a decision that was based on an unreason-

able determination of the facts in light of the evidence

presented in the state-court proceeding. 28 U.S.C.

§ 2254(d). We review the decision of the last state court

to review the issue. See Lucas v. Montgomery, 583 F.3d

1028, 1030 (7th Cir. 2009).

For the purposes of habeas corpus review, “[c]learly

established federal law” means “the governing principle

or principles set forth by the Supreme Court at the time

the state court renders its decision.” Lockyer v. Andrade,

538 U.S. 63, 71-72 (2003). A state-court decision is “contrary

to” federal law if the state court either erroneously laid

out governing U.S. Supreme Court precedent, or,

having identified the correct rule of law, decided a case

differently than a materially factually indistinguishable

Supreme Court case. 28 U.S.C. § 2254(d)(1); Sutherland v.

Gaetz, 581 F.3d 614, 616 (7th Cir. 2009). An “unreasonable

application” of U.S. Supreme Court precedent occurs

when a state court identifies the correct governing legal

rule but unreasonably applies it to the facts of a case or

if the state court either unreasonably extends a legal

principle from the Supreme Court’s precedent to a new

context in which it should not apply or unreasonably

refuses to extend that principle to a new context in

which it should apply. Gaetz, 581 F.3d at 616.

Whether a state ruling runs afoul of these AEDPA

standards is a legal determination, and, as such, we

review the district court’s determination de novo. See

Sweeney v. Carter, 361 F.3d 327, 330 (7th Cir. 2004); see also

8 No. 08-3151

Gaetz, 581 F.3d at 616. However, we review the district

court’s factual determinations for clear error. See Smith v.

Grams, 565 F.3d 1037, 1043 (7th Cir. 2009).

A. The State Court Correctly Determined That Peti-

tioner Did Not Receive Ineffective Assistance of

Trial Counsel

Brown contends that he received ineffective assistance

of counsel, in violation of the Sixth Amendment, because

his trial attorney failed to request a hearing in light of

Ms. Young’s two statements. To prevail, Brown “must

show that counsel’s performance was deficient, and that

the deficiency prejudiced the defense.” Wiggins v. Smith,

539 U.S. 510, 521 (2003) (citing Strickland, 466 U.S. at 687).

To demonstrate this deficiency, he “must show that coun-

sel’s representation fell below an objective standard of

reasonableness.” Strickland, 466 U.S. at 688; Wiggins, 539

U.S. at 521. That objective standard of reasonableness, in

turn, is determined by prevailing professional norms.

Strickland, 466 U.S. at 688. “We assess counsel’s work as

a whole, and ‘it is the overall deficient performance,

rather than a specific failing, that constitutes the ground

of relief.’ ” Pole v. Randolph, 570 F.3d 922, 934 (7th Cir.

2009) (citing Peoples v. United States, 403 F.3d 844, 848 (7th

Cir. 2005)). “The bar for establishing that a state court’s

application of the Strickland standard was ‘unreasonable’

is a high one, and only a clear error in applying

Strickland will support a writ of habeas corpus.” Allen v.

Chandler, 555 F.3d 596, 600 (7th Cir. 2009).

No. 08-3151 9

Brown grounds his claim of ineffective assistance of trial

counsel on the latter’s election not to request a hearing

to determine the effect of Ms. Young’s in-court and out-of-

court statements. We consider each statement in turn.

A. Ms. Young’s In-Court Statement

Would an objectively reasonable attorney necessarily

request a hearing in light of Ms. Young’s proclamation

from the gallery that “the situation is racist”? We do not

believe so. Given that the victim, Charles Young, Jr. and

the accused were both African-American, the meaning of

the challenged statement is equivocal. It is not at all clear

how a jury would perceive the assertion in a manner

injurious to Brown. Were a juror to interpret the remark

as implying that the trial were biased against the

defendant due to this race, this would seem to be a boon

to Brown. But to the extent a juror viewed the comment

as reflecting on the treatment given Young by the authori-

ties, then the statement was wholly irrelevant to

Brown’s guilt or innocence. Notably, Brown himself

speculated on cross-examination that Ms. Young was

expressing her displeasure at the police department’s

treatment of her son. Under either interpretation,

Ms. Young’s statement that the situation was racist is

ambiguous and apparently innocuous.

Faced with such a remark, which the jury may or

may not have heard, it would be entirely reasonable

for counsel to elect not to pursue the matter. An able

attorney might well conclude that his client’s cause

10 No. 08-3151

would best be served by not drawing the jury’s attention

to issues that are largely, if not completely, irrelevant to

his client’s guilt or innocence. We cannot find that

Brown’s trial attorney acted unreasonably, particularly

in light of the fact that we adopt “a strong presumption

that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S.

at 689.

Brown seeks to escape this conclusion by characterizing

Ms. Young’s comment as extraneous and contending

that the Supreme Court’s holding in Remmer v. United

States thus compels a hearing. 347 U.S. 227, 229 (1954).

Brown overstates the reach of the Court’s decision in

Remmer. In that case, a juror was told by an unnamed

person that he could profit by finding for the petitioner.

The district court denied a motion for a new trial and the

Court of Appeals affirmed, finding that the petitioner

had not demonstrated prejudice. The Supreme Court

reversed, holding:

In a criminal case, any private communication, contact,

or tampering directly or indirectly, with a juror

during a trial about the matter pending before the

jury is, for obvious reasons, deemed presumptively

prejudicial, if not made in pursuance of known rules

of the court and the instructions and directions of the

court made during the trial, with full knowledge of

the parties.

Remmer, 347 U.S. at 229. Assuming that the jury in fact

heard Ms. Young’s in-court remark, Remmer raises an

important question: did her statement constitute the

kind of unauthorized contact that triggers a presumption

No. 08-3151 11

of prejudice and thus requires a hearing? The respondent

contends that the utterance lacks the private nature of

the communication present in Remmer and therefore

does not compel a hearing. There is some force to this

suggestion, given the Supreme Court’s reference to any

“private” communication. We note, however, that at least

one prior decision of this Court might be read to suggest

otherwise. See Evans v. Young, 854 F.2d 1081, 1082-84 (7th

Cir. 1988) (suggesting that an in-court statement made

within earshot of the jury can require a Remmer hearing,

even if the comment were not made in private).

Regardless, Ms. Young’s assertion did not necessitate

a Remmer hearing. This is because the comment was not

one that would affect a reasonable juror’s deliberation as

to whether Brown was guilty or innocent. See Whitehead

v. Cowan, 263 F.3d 708, 724-25 (7th Cir. 2001). Brown

appeals to an excessively literal interpretation of the

Supreme Court’s pronouncement that “any private com-

munication . . . with a juror during a trial” is deemed

prejudicial. The relevant communication must, of course,

be read in its context (and the content of the communica-

tion might not be known if it were in fact completely

“private”). See Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir.

2005). In this respect, we have repeatedly held that no

Remmer hearing is necessary when the challenged state-

ment is both ambiguous and innocuous. See Whitehead,

263 F.3d at 724-25; see also United States v. Al-Shahin, 474

F.3d 941, 949 (7th Cir. 2007). As we have explained

above, Ms. Young’s statement can be so characterized.

Therefore, no Remmer hearing was necessary in light of

Ms. Young’s in-court remark and it was reasonable for

12 No. 08-3151

Brown’s attorney to elect not to request one. See also

United States v. Gallardo, 497 F.3d 727, 736 (7th Cir. 2007)

(“In order for a hearing to be required, ‘the extraneous

communication to the juror must be of a character

that creates a reasonable suspicion that further inquiry

is necessary to determine whether the defendant was

deprived of his right to an impartial jury.’ ”) (quoting

Wisehart v. Davis, 408 F.3d 321, 326 (7th Cir. 2005)).

In light of the above, we have little trouble finding

that Brown’s trial attorney’s performance did not fall

below an objective standard of reasonableness. For

much the same reason, we also find that Brown

cannot establish prejudice. The challenged statement is

ambiguous and innocuous. In addition, the evidence

against Brown seems strong. Even putting aside the

questions of whether the jury even heard the remark and

construed it in a prejudicial way, the inculpatory

evidence detracts from his contention that Ms. Young’s

statement undermines confidence in the outcome of the

trial. See, e.g., Whitehead, 263 F.3d at 724 (“Finally, the

evidence of defendant’s guilt was overwhelming, and

this ‘militates against a finding that the introduction of

the disputed [material] affected the jury’s verdict.’ ”)

(citing United States v. Paneras, 222 F.3d 406, 411 (7th Cir.

2000)).

The state court’s conclusion that Brown received

effective assistance of counsel did not, then, constitute an

unreasonable application of federal law, as established

by the Supreme Court. Nor did it amount to an unrea-

sonable determination of the facts in light of the evidence

presented in the state-court proceeding.

No. 08-3151 13

B. Ms. Young’s Out-of-Court Statement

We now move to consider Ms. Young’s more serious,

out-of-court statement that the courthouse should be

treated similarly to the World Trade Center and ought to

be bombed. The state court declined to consider whether

this declaration presented a risk of prejudice because

Brown had made no showing that any juror heard or was

made aware of Ms. Young’s out-of-court proclamation.

Brown v. State, 874 N.E.2d 651, at *4 (2007) (citing

Worthington v. State, 405 N.E.2d 913, 916 (Ind. 1980), cert.

denied, 451 U.S. 915 (1981) (“Absent a basis for believing

that the jury may have been subjected to improper out-of-

court stimuli, there is no need to employ the procedure

outlined in Lindsey.”)).

The state court’s conclusion in this regard was not

contrary to, nor did it involve an unreasonable applica-

tion of, clearly established federal law, as established by

the U.S. Supreme Court. Indeed, the state court’s finding,

which was based on Brown’s failure to introduce

evidence that a juror perceived the comments, finds

support in several decisions of the U.S. courts of appeals.

These decisions suggest the absence of a clearly estab-

lished federal law to the contrary. See, e.g., United States v.

Davis, 15 F.3d 1393, 1412 (7th Cir. 1994) (observing that

“[o]nce a defendant had made a sufficient showing that a

juror may have been improperly influenced, the court must

ascertain whether the juror was or was not tainted”) (emphasis

in original); United States v. Rosales, 680 F.2d 1304, 1306

(10th Cir. 1981) (no abuse of discretion to decline to hold

a hearing where there was no evidence that any juror

other than the one discharged heard the extraneous

14 No. 08-3151

remarks); United States v. Schoppert, 362 F.3d 451, 459 (8th

Cir. 2004) (“A defendant must, moreover, make some

effort to support an allegation of jury taint before an

evidentiary hearing or declaration of a mistrial will be

appropriate. A bald assertion of taint will not suffice; the

defendant needs to make a showing that his allegation

is credible and that the prejudice alleged is serious enough

to warrant whatever action is requested.”); King v.

Bowersox, 291 F.3d 539, 541 (8th Cir.), cert. denied, 537 U.S.

1093 (2002) (finding no need to embark on a Remmer

analysis in the absence of a showing that the jury saw

or was aware of hallway display in memory of victim).

Here, Brown does not even allege that a juror was privy

to Ms. Young’s remarks on the courthouse steps. Rather,

he merely alleges that a juror could have heard her state-

ment outside the courthouse. This is an insufficient basis

for establishing that a Remmer hearing must be con-

ducted. Therefore, the Indiana Court of Appeals’ election

not to countenance Brown’s claim of prejudice was not

inconsistent with, nor did it involve an unreasonable

application of, clearly established federal law.

Assuming, arguendo, that there were some modicum

of evidence that a juror heard Ms. Young’s threat to the

courthouse, it is not clear that the remark would have

prejudiced Brown. Although evidently an abhorrent

remark, particularly in the days following the attacks of

9/11, it would not seem to weigh on Brown’s perceived

guilt or innocence in the eyes of the jury. As in Whitehead,

“[t]he mother did not attempt to persuade the jury, nor

did she provide them with any extraneous information

No. 08-3151 15

about the facts of the case. . . . While understandably

emotional, the statement was not prejudicial.” 263 F.3d

at 724. In short, stating that the courthouse should be

bombed does not readily translate into an aspersion

on the defendant. It is therefore akin to the kind of am-

biguous and innocuous remark that does not require

a Remmer hearing. Id. at 724-25.

B. The State Court Correctly Determined That Peti-

tioner Did Not Receive Ineffective Assistance of

Appellate Counsel

Brown also contends that he received ineffective assis-

tance of appellate counsel. As should be clear from the

preceding discussion, Ms. Young’s statements were not

of the kind that would warrant an inference of prejudice.

Nor is there evidence that any juror was privy to

Ms. Young’s out-of-court statement. Just as it was reason-

able for Brown’s trial attorney not to request a hearing, so

was it reasonable for his appellate attorney to focus on

issues of import to the jury’s guilty verdict and the

trial court’s imposed sentence.

Appellate counsel’s performance is similarly measured

against that of an objectively reasonable attorney. See Lee v.

Davis, 328 F.3d 896, 900 (7th Cir. 2003). An appellate

counsel’s performance is deficient if she fails to argue an

issue that is both obvious and clearly stronger than the

issues raised. Martin v. Evans, 384 F.3d 848, 851 (7th Cir.

2004) (citing Lee v. Davis, 328 F.3d 896, 900-01 (7th Cir.

2003)). However, counsel is not required to raise every

16 No. 08-3151

nonfrivolous issue on appeal. Martin, 384 F.3d at

852 (citing Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996)).

To prevail, Brown must show that there is a reasonable

probability that the issue his appellate attorney failed

to raise would have altered the outcome of the appeal,

had it been raised. Lee, 328 F.3d at 901. Petitioner

cannot make such a showing and his petition must fail

accordingly.

There is no evidence that any juror heard Ms. Young’s

threatening remarks outside the courthouse. Even if there

were such evidence, those threats were directed at the

courthouse and did not cast an aspersion of guilt on the

defendant. Ms. Young’s in-court assertion that the situa-

tion was racist was ambiguous and innocuous, given

the context within which the remark was made. This

being the case, there was no need for a hearing and reason-

able appellate counsel could wisely disregard Ms. Young’s

statements in favor of issues that weigh on Brown’s guilt

and sentence. Although Brown offers Oswald v. Bertrand,

in support of his position, that case simply provides

that “the greater [the] probability [of bias], the more

searching the inquiry needed to make reasonably sure

that an unbiased jury is impaneled.” 374 F.3d 475, 480 (7th

Cir. 2004). In the present case, evidence of bias is limited

to the point of being nonexistent. This being the case,

Oswald supports the decision of Ward’s appellate

counsel not to raise the trial court’s failure to hold a

hearing.

The Indiana Court of Appeals correctly held that,

because Ms. Young’s statements did not present a sub-

No. 08-3151 17

stantial risk of prejudice, Brown could not establish that

his appellate attorney’s performance was deficient.

III. CONCLUSION

The Indiana Court of Appeals’ finding that Brown

received effective assistance of trial and appellate counsel

was not contrary to, nor did it involve an unreasonable

application of, clearly established federal law, as estab-

lished by the U.S. Supreme Court. Nor was its finding

based on an unreasonable determination of the facts.

The in-court statement of one victim’s mother to the

effect that the situation was racist was ambiguous in its

import and, in any event, innocuous. Her out-of-court

proclamation that the courthouse should be bombed was

of course more serious. Yet, even this assertion bears no

obvious relevance to the question of the defendant’s

innocence or guilt. More important still, Brown has failed

to provide even a scintilla of evidence that any juror

was privy to this remark. The judgment of the district

court is therefore

A FFIRMED.

3-17-10