Fryer, Eddie L. v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-4078

EDDIE LEE FRYER,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 96 C 3921--Milton I. Shadur, Judge.

Argued September 28, 2000--Decided March 2, 2001

Before FLAUM, Chief Judge, BAUER, and HARLINGTON WOOD,

JR., Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge. On October

11, 1991, Eddie Fryer was convicted by a jury on

three counts of bank robbery and two counts for

the use of a firearm during the commission of a

violent felony. The charges were based on three

separate armed bank robberies. On direct appeal,

Fryer’s sentence and conviction were affirmed by

this court in United States v. Fryer, 974 F.2d

813 (7th Cir. 1992), cert. denied, 508 U.S. 941

(1993). On June 24, 1996, Fryer filed a pro se

motion pursuant to 28 U.S.C. sec. 2255 to vacate

his conviction on the grounds of ineffective

assistance of counsel at trial. On April 25,

1997, Fryer filed an amendment to his sec. 2255

motion raising the applicability of Old Chief v.

United States, 519 U.S. 174 (1997), to his case

as a separate issue. The district court appointed

counsel for Fryer and ultimately denied Fryer’s

motion. Fryer appealed the district court’s

denial and filed a petition for a certificate of

appealability. The district court granted Fryer’s

certificate on one issue only, whether Old Chief

should apply to the admission of Fryer’s prior

felony conviction which was presented at trial.

Fryer then filed in this court a motion for

enlargement of the issues in the certificate of

appealability. We denied the motion in an order

issued on November 30, 1999. We now hold that Old

Chief does not apply and affirm the denial of

Fryer’s habeas petition.

I. Background

A detailed presentation of the facts of Fryer’s

case may be found in Fryer, 974 F.2d at 814-18.

Due to the limited nature of this inquiry, we

recount only the facts which are relevant to the

issue in this opinion. Fryer was charged with

three counts of bank robbery with the use of a

dangerous weapon in violation of 18 U.S.C.

sec.sec. 2113(a) and (d), three counts for the

use of a weapon during and in relation to the

commission of a crime of violence under 18 U.S.C.

sec. 924(c), and a seventh count for possession

of a firearm by a felon in violation of 18 U.S.C.

sec. 922(g). He was found guilty on three bank

robbery counts and two counts for the use of a

weapon during two of the bank robberies.

In presenting the necessary elements under Count

7, possession of a firearm by a felon, the

government sought to enter into evidence a

certified judgment of conviction ("CJ") in order

to satisfy the prior felon element. The CJ

contained the name and nature of the prior

offense, which was robbery. Fryer objected,

arguing the CJ was highly prejudicial because it

was the same offense for which he was currently

being tried. Although the district court

overruled Fryer’s objection, before allowing the

evidence to be introduced, the judge admonished

the jury regarding the limited purpose for which

they could use the prior conviction.

You are about to hear evidence with respect to

defendant Eddie Lee Fryer having been convicted

of an offense punishable by imprisonment for a

term exceeding one year. This evidence may be

considered by you only on the question whether

the government has established one of the

elements of the offense that’s charged in Count

7 of the indictment, which you will have later

on. You will recall from opening statements that

there was a reference to one of the charges

having to do with the defendant’s allegedly

having possession of a firearm at a time that he

had previously been convicted of what we referred

to as a felony offense--that is, something

punishable by imprisonment for a term exceeding

one year. So that the evidence that you are about

to hear may be considered by you only for that

limited purpose, not for any other purpose in

connection with the case.

The government attorney then read to the jury the

CJ, which stated that Fryer had been charged with

armed robbery, was convicted of armed robbery,

and was sentenced "to three years probation, the

first six months in the Cook County Department of

Corrections." Fryer immediately objected to the

accuracy of the CJ, noting that armed robbery was

not a probationable offense under the Illinois

statute. From what the court and attorneys could

deduce, Fryer had been charged with armed robbery

but convicted of robbery, a lesser offense. The

district court then instructed the jury to

disregard the published CJ and ordered the

government to obtain a corrected replacement. A

second CJ was obtained, which contained the

correct charge and conviction but an incorrect

sentence. While preserving his objection to the

admissibility of the exact nature of the

conviction, Fryer agreed to stipulate to the fact

that he had previously been charged with armed

robbery, convicted for the lesser offense of

robbery, and was sentenced.

At the end of the trial, while instructing the

jury as to the felon-in-possession count, the

district court repeated the earlier limiting

instruction it had given, noting that,

you have heard evidence that defendant Eddie Lee

Fryer has been convicted then of an offense

punishable by imprisonment for a term exceeding

one year. Importantly, you may consider that

evidence only on the question whether the

government has established an element of the

offense charged in Count 7 of the indictment.

That evidence is to be considered by you only for

that limited purpose and for no other.

Fryer was acquitted on Count 7. However, Fryer

maintains that allowing the jury to learn the

nature of his prior conviction prejudiced him in

the jury’s consideration of the three counts of

armed bank robbery.

II. Analysis

A. Standard of Review

We review a district court’s denial of a sec.

2255 petition on factual matters for clear error,

and on questions of law de novo. See

Arango-Alvarez v. United States, 134 F.3d 888,

890 (7th Cir. 1998).

We note that the district court addressed the

effect on Fryer’s petition of the enactment of

the Antiterrorism and Effective Death Penalty Act

of 1996 ("AEDPA"), which went into effect on

April 24, 1996, after Fryer’s direct appeal was

finalized in 1993, but before his collateral

appeal was filed in 1996./1 As pertains to the

single issue before us now, AEDPA limits the time

a petitioner may bring a sec. 2255 motion to one

year, in Fryer’s case, running from "the date on

which the right asserted was initially recognized

by the Supreme Court, if that right has been

newly recognized by the Supreme Court and made

retroactively applicable to cases on collateral

review." 28 U.S.C. sec. 2255(3). Fryer timely

filed an amendment to his petition after the

publication of Old Chief in 1997. In Old Chief,

the Supreme Court resolved a split of authority

in the federal courts and ruled that evidence of

prior felony convictions used to support a charge

under 18 U.S.C. sec. 922(g)(1) should not be

heard by the jury where the defendant offers to

stipulate to the existence of such convictions.

519 U.S. at 191.

Fryer originally attacked this same issue on

the merits in his direct appeal when he

challenged the admissibility of evidence under

Federal Rule of Evidence 403, arguing that

allowing the jurors to learn the nature of his

prior conviction unfairly prejudiced him, which,

he claims, was evidenced by the jury’s

convictions on the robbery counts. A panel of

this court found that "any prejudice to [Fryer]

was insubstantial, if not nonexistent, in the

face of the overwhelming evidence of his guilt,"

and noted that the district court correctly gave

a cautionary instruction limiting the use of the

prior conviction to consideration of the felon-

in-possession count only. Fryer, 974 F.2d at 823.

Then, in his July 23, 1997 reply in support of

his sec. 2255 petition, Fryer transformed his

failed evidentiary argument into a "new" issue by

stating that "Old Chief constitutes new law which

should be retroactively applied," and noted,

"Under the Teague [v. Lane, 489 U.S. 288 (1989)]

analysis, the rule set forth in Old Chief

qualifies under the second exception to the

general rule of nonretroactivity for cases on

collateral review--it requires the observance of

those procedures that . . . are implicit in the

concept of ordered liberty," or "[p]ut another

way, the Court’s ruling in Old Chief qualifies as

a watershed rule of criminal procedure

implicating the fundamental fairness and accuracy

of the criminal proceeding." In his April 29,

1997 amendment motion to his sec. 2255 petition,

Fryer acknowledged that applying Old Chief to his

habeas petition presented a retroactivity issue

because his case had become final on May 24,

1993, when his petition for certiorari was

denied. See Fryer v. United States, 508 U.S. 941

(1993). In his petition for certificate of

appealability, Fryer added one sentence to his

"exception to Teague" argument, stating that the

holding in Old Chief "may not be a new rule as

defined in Teague and, therefore, may be

retroactively applied on collateral review."

Finally, in his appellate brief he argues that,

because existing precedent dictated that the name

and nature of his prior conviction should not

have been disclosed, there is no new rule of law.

To address all of Fryer’s arguments, we first

review the holding in Old Chief to determine if

it establishes a new rule of law./2 The

defendant in Old Chief was charged with numerous

counts, including a felon-in-possession count

under 18 U.S.C. sec. 922(g)(1). 519 U.S. at 174.

Old Chief filed a pre-trial motion to exclude any

mention or prohibit any evidence as to the exact

name and nature of his prior criminal

convictions, but agreed to stipulate to the fact

that he had been convicted of a crime punishable

by imprisonment exceeding one year, which is a

felony. Id. at 175. The government refused to

join in the stipulation and the district court

overruled both Old Chief’s pre-trial motion and

a second objection made during trial. Id. at 177.

Also, as the Court noted, the jury instruction as

to the felon-in-possession charge was erroneous,

although it did state, "You may not consider a

prior conviction as evidence of guilt of the

crime for which the defendant is now on trial."

Id. at 176 n.2. Old Chief was convicted of all

charges brought against him. Id. at 176. The

Court held that the government’s introduction at

trial of evidence that revealed the exact name

and nature of the defendant’s prior felony

conviction to support a charge under 18 U.S.C.

sec. 922(g)(1), where the defendant offered to

stipulate to the fact of a prior felony, unfairly

prejudiced the defendant under the terms of Rule

403. Id. at 191-92.

Fryer’s case is clearly distinguished from that

of Old Chief. As the record indicates, Fryer

objected to stating the offense but did not offer

to stipulate. Only after giving a detailed

cautionary instruction did the court allow the CJ

to be presented. After the CJ was first read,

Fryer objected to the accuracy. The government

then offered to stipulate as to the nature and

sentencing of the conviction but both counsel and

the judge agreed to wait for a second CJ with

correct information. When the new CJ arrived, the

sentence was incorrect. The judge suggested a

stipulation as to the correct charge, conviction,

and sentencing. Defense counsel agreed although

he preserved his objection to a reading of the

exact name and nature of the charges. The court

also gave an additional limiting instruction

prior to deliberation. The jury acquitted Fryer

on two counts, one of which was the felon-in-

possession charge. However, even though Fryer’s

case does not follow the criteria of Old Chief,

because Fryer is seeking the benefit of what may

be a new rule of law, we must apply Teague before

considering the merits of the claim. See Caspari

v. Bohlen, 510 U.S. 383, 389 (1994).

More than ten years ago, the Supreme Court held

that "a new rule for the conduct of criminal

prosecutions is to be applied to all cases, state

or federal, pending on direct review or not yet

final, with no exception for cases in which the

new rule constitutes a ’clear break’ with the

past." Griffith v. Kentucky, 479 U.S. 314, 328

(1987). A petitioner seeking application of a new

rule generally must show that the new rule was

announced while his case was on direct appeal or

not yet final. Id. at 321 & n.6 (holding that a

case is final with respect to retroactivity

analysis "in which a judgment of conviction has

been rendered, the availability of appeal

exhausted, and the time for a petition for

certiorari elapsed or a petition for certiorari

finally denied."). However, a case on collateral

review is generally not entitled to retroactive

application of new rules. Mackey v. United

States, 401 U.S. 667, 682-83 (1971).

In Old Chief, the Court stated that the

"principal issue is the scope of a trial judge’s

discretion under Rule 403." 519 U.S. at 180. Rule

403 provides that a district court may exclude

relevant evidence if, among other things, "its

probative value is substantially outweighed by

the danger of unfair prejudice . . . ." The Court

noted at that time, "the accepted rule was that

the prosecution is entitled to prove its case

free from any defendant’s option to stipulate the

evidence away." Id. at 189. However, the Court

then noted that this "accepted" rule "has . . .

virtually no application when the point at issue

is a defendant’s legal status, dependent on some

judgment rendered wholly independently of the

concrete events of later criminal behavior

charged against him." Id. at 190. Therefore, "in

any [case] in which the prior conviction is for

an offense likely to support conviction on some

improper ground, the only reasonable conclusion

was that the risk of unfair prejudice did

substantially outweigh the discounted probative

value of the record of conviction, and it was an

abuse of discretion to admit the record when an

admission was available." Id. at 191. "[T]his

will be the general rule when proof of convict

status is at issue." Id. at 192. The Court seems

to acknowledge a clear break from the previously

"accepted" rule of prosecutorial entitlement,

creating a "new rule" for proof of convict

status. The dissenting justices recognized this

as "a newly minted rule that a defendant charged

with violating sec. 922(g)(1) can force the

Government to accept his concession to the prior

conviction element of the offense, thereby

precluding the Government from offering evidence

on this point." Id. at 192-93 (5-4 decision)

(O’Connor, J. dissenting) (emphasis added).

One of Fryer’s arguments asserts that, although

this is a new rule of law, his case falls within

an exception allowing for retroactivity. The

application of a new rule of law and the limited

exceptions to this rule of preclusion are set

forth in Teague v. Lane. 489 U.S. at 311. In

Teague, the Supreme Court held that on collateral

review, "new constitutional rules of criminal

procedure will not be applicable to those cases

which have become final before the new rules are

announced," providing for only two narrow

exceptions. Id. at 310. The two exceptions are

(1) rules which place "certain kinds of primary,

private individual conduct beyond the power of

the criminal law-making authority to proscribe,"

and (2) rules establishing watershed principles

of criminal procedure that are "implicit in the

concept of ordered liberty." Id. at 311

(citations omitted). As the Court explained in

Teague, a case announces a new rule if it breaks

new ground, imposes a new obligation on the

states or the federal government, or if the

result was not dictated by precedent existing at

the time the defendant’s conviction became final.

Id. at 301; see also Stewart v. Lane, 60 F.3d

296, 300 (7th Cir. 1995). The Court presented a

three-step analysis for applying Teague to

determine if a case announced a new rule of law.

First, the court must ascertain the date on which

the defendant’s conviction and sentence became

final for Teague purposes. Second, the court must

survey the legal landscape as it then existed,

and determine whether a state court considering

the defendant’s claim at the time his conviction

became final would have felt compelled by

existing precedent to conclude that the rule he

seeks was required by the Constitution. Finally,

even if the court determines that the defendant

seeks the benefit of a new rule, the court must

decide whether that rule falls within one of the

two narrow exceptions to the nonretroactivity

principle.

Caspari, 510 U.S. at 390 (internal quotations,

citations, and alterations omitted). Although it

may seem obvious that the Court created a new

rule in Old Chief, because there was a split in

the federal courts concerning conviction status,

it is necessary to examine the holdings of

Seventh Circuit cases prior to Old Chief.

Therefore, we must conduct the three-step

analysis in Caspari.

As to the first prong, there is no dispute

Fryer’s conviction was final on May 24, 1993 when

his petition for certiorari was denied. For the

second prong, we must survey the legal landscape

as it existed on May 24, 1993 and "determine

whether reasonable jurists would have felt

compelled by existing precedent on that date to

conclude that the rule announced in [Old Chief]

was required by the Constitution." Spreitzer v.

Peters, 114 F.3d 1435, 1443 (7th Cir. 1997)

(citing Graham v. Collins, 506 U.S. 461, 467

(1993) ("unless reasonable jurists hearing

petitioner’s claim at the time his conviction

became final would have felt compelled by

existing precedent to rule in his favor, we are

barred from doing so now.")). In United States v.

Allen, 798 F.2d 985, 1001 (7th Cir. 1986), the

government introduced at trial a certified copy

of the defendant’s prior conviction of armed bank

robbery, where a prior felony conviction was an

element of the crime charged. Id. Allen objected

and suggested that he stipulate only to the

element of the charge but not inform the jury of

the prior conviction. Id. Stating that the

general rule was that "the prosecution is

entitled to prove its case free from any

defendant’s option to stipulate the evidence

away," (as had been discussed in Old Chief, 519

U.S. at 189), the court in Allen held that "[i]n

most, but not all, cases, a party is not required

to accept a judicial admission of his adversary,

but may insist on proving the fact." 798 F.2d at

1001. Although the court noted that the general

rule was the same as the balancing test required

by Rule 403, the panel stated that "a cold

stipulation can deprive a party of the legitimate

moral force of his evidence and can never fully

substitute for tangible, physical evidence or the

testimony of witnesses." Id. (internal quotations

and citations omitted). The court held that the

district court did not err in admitting the

certificate of conviction. Id. at 1002.

More specifically, in United States v. Hope,

906 F.2d 254, 259 (7th Cir. 1990), one of the

charges against the defendant was for a violation

of sec. 922(g)(1). Hope’s stipulation to a prior

felony included the nature of the conviction,

that of deviate sexual assault. The court noted

that the evidence did not make the jury aware of

any prior conviction beyond that necessary as an

element of the offense, and that the government

did not suggest to the jury that the prior

conviction demonstrated a likelihood that he had

committed the offense charged, nor did the

government elaborate on the specifics of the

prior conviction. Id. The court held that even

though the district court had failed to give a

limiting instruction, what error there was, was

harmless. Id. at 260. In United States v.

Madewell, 917 F.2d 301, 305 (7th Cir. 1990), also

a case where one of the charges against the

defendant was for a violation of sec. 922(g)(1),

the defendant argued that he should have been

allowed to stipulate to his prior conviction,

which was for a drug-related charge. Id. Madewell

maintained that the prior conviction was so

highly prejudicial that it would "lead to a

conviction based on the inference that he was

acting in conformity with past misconduct rather

than on the basis of proof of guilt beyond a

reasonable doubt." Id. The court found

"unpersuasive the proposition that knowledge of

the nature of Madewell’s prior felony and not

knowledge of the[ ] facts caused the jury to find

Madewell guilty," noting that the effect of a

stipulation or limiting instruction would have

had an insignificant effect on the outcome of the

trial. Id.

Although the balancing test under Rule 403 has

guided this and all other courts in determining

whether the probative value of evidence is

outweighed by the danger of unfair prejudice,

precedent in this circuit prior to May 1993 would

suggest that the name and nature of a prior

conviction which was introduced as an element of

an offense were allowed even when the defendant

objected and requested a stipulation. In light of

these previous cases, we conclude that reasonable

jurists could have disagreed over whether

evidence of the name and nature of a prior

conviction should not be allowed, and the issue

was therefore "susceptible to debate among

reasonable minds." See Graham, 506 U.S. at 476

(internal quotation and citation omitted). The

district court made a good faith interpretation

of existing precedent during Fryer’s trial and

did not proceed in a manner contrary to or which

was an unreasonable application of clearly

established federal law as determined by the

United States Supreme Court. See, cf., id.;

Spreitzer, 114 F.3d at 1447. We find that Old

Chief announced a new rule under Teague and that

Fryer would not be entitled to benefit from that

new rule on habeas review.

Finally, under the third step of the analysis,

we must determine whether Old Chief falls within

either of the two narrow exceptions as stated in

Teague. We agree with the holding of the Sixth

Circuit in In re Green, 144 F.3d 384, 387 (6th

Cir. 1998) (per curiam).

The decision in Old Chief announced a new rule

concerning the admissibility of evidence in a

criminal case. . . . This decision did not merely

reaffirm the proper interpretation of existing

law. (citation omitted). . . . The decision in

Old Chief did not place certain kinds of primary,

private individual conduct beyond the power of

the criminal law-making authority to proscribe,

or otherwise prohibit imposition of a certain

type of punishment for a class of defendants

because of their status or offense; nor did it

announce a new "watershed" rule of criminal

procedure implicating the fundamental fairness

and accuracy of the criminal proceeding. Hence,

the rule is not retroactive, and is therefore

inapplicable on collateral review.

Id. (citing Caspari, 510 U.S. at 396); see also

Nelson v. United States, 184 F.3d 953, 955 (8th

Cir. 1999) (holding that Old Chief was not an

exception under Teague, and "merely announced a

new rule concerning the admissibility of evidence

in a criminal case."). We find that the decision

in Old Chief does not fall within either of the

two exceptions.

In Fryer’s final argument, which appeared for

the first time in his appellate brief, he

maintains that the Court in Old Chief did not

create a new rule of law within the meaning of

Teague, but determined the meaning of a

congressional enactment. Therefore, Fryer asserts

that under the holding of Bousley v. United

States, 523 U.S. 614 (1998), Old Chief should be

applied retroactively to his case. We note that

technically, the Bousley argument is waived

because it was never raised at the district court

level. See Huntzinger v. Hastings Mut. Ins. Co.,

143 F.3d 302, 307 (7th Cir. 1998) ("there may

exist narrow exceptions to the general rule

barring consideration of new arguments on appeal

’where jurisdictional questions are presented or

where, in exceptional cases, justice demands more

flexibility.’" (quoting Stern v. United States

Gypsum, Inc., 547 F.2d 1329, 1333 (7th Cir.

1977)). Fryer’s case does not "implicate[ ]

jurisdictional issues nor give[ ] rise to

exceptional circumstances." See id.

In any event, Fryer’s argument would fail even

if it had been raised before this appeal. The

Supreme Court did not apply the rule of Teague in

Bousley, but determined that in a sec. 2255

collateral relief case where the only

constitutional claim was whether or not the

petitioner’s guilty plea was knowing and

intelligent, Teague, which applied only to

procedural rules, was inapplicable "to the

situation in which this Court decides the meaning

of a criminal statute enacted by Congress."

Bousley, 523 U.S. at 620. The Court noted that

the Teague doctrine was based on the notion that

one of the "principal functions of habeas corpus

[is] to assure that no man has been incarcerated

under a procedure which creates an impermissibly

large risk that the innocent will be convicted."

Id. (internal quotations and citations omitted).

The Court also observed,

[U]nless a new rule of criminal procedure is of

such a nature that "without [it] the likelihood

of an accurate conviction is seriously

diminished," [Teague v. Lane,] 489 U.S., at 313,

there is no reason to apply the rule

retroactively on habeas review. By contrast,

decisions of this Court holding that a

substantive federal criminal statute does not

reach certain conduct, like decisions placing

conduct "’beyond the power of the criminal law-

making authority to proscribe,’" id., at 311

(quoting Mackey v. United States, 401 U.S. 667,

692 (1971)), necessarily carry a significant risk

that a defendant stands convicted of "an act that

the law does not make criminal." Davis v. United

States, 417 U.S. 333, 346 (1974).

Id. Having already determined that the facts of

Fryer’s case do not fall within the exceptions as

stated in Teague, we also find that Bousley is

not applicable. We do not believe in Fryer’s

situation that "the likelihood of an accurate

conviction [was] seriously diminished" without

the retroactive applicability of Old Chief. The

holding in Old Chief deals with a new rule of

criminal procedure and is not an interpretation

of the meaning of a congressional statute.

III. Conclusion

For the above-stated reasons, we find that

Fryer has not identified a new rule of

constitutional law made retroactive to cases on

collateral review. Accordingly, the district

court’s denial of the petition for writ of habeas

corpus is AFFIRMED.

/1 Fryer’s original habeas petition included several

issues in which he argued that his trial counsel

was constitutionally deficient. The district

court correctly determined that AEDPA’s time

limitations would not bar Fryer’s motion,

following Lindh v. Murphy, 96 F.3d 856, 865-66

(7th Cir. 1996) (en banc), rev’d on other grounds,

521 U.S. 320 (1997).

/2 The applicability of Old Chief was briefly

mentioned in a previous unpublished Seventh

Circuit opinion, Fisher v. Litscher, No. 00-2199,

2000 WL 1909746 (7th Cir. Dec. 29, 2000). The

panel did not analyze the Old Chief issue but

stated in a footnote, "[I]t does not appear that

Old Chief created a new rule of constitutional

law," and confined its analysis of ineffective

assistance of counsel to the standard established

in Strickland v. Washington, 466 U.S. 668 (1984).

Fisher, 2000 WL 1909746 at *2 n.1. Based upon the

lengthy analysis stated above, the holding in

Fryer contradicts the dicta in Fisher, even

though this does not affect the outcome in

Fisher. The panel in Fisher declined to apply Old

Chief retroactively, id., reaching the same

conclusion on that point as we do in this case.