holding that petitioner was not entitled to an evidentiary hearing under Section 2254(e)(2) on whether his trial counsel was ineffective in failing to seek a fitness hearing
How later courts described this case
- holding that petitioner was not entitled to an evidentiary hearing under Section 2254(e)(2) on whether his trial counsel was ineffective in failing to seek a fitness hearing
- federal habeas court’s review of mixed questions of law and fact is “[i]n a sense” de novo, but the question the court must answer is “whether the state court ‘unreasonably’ applied clearly established federal law as the Supreme Court has determined it”
- applying pre-AEDPA procedural default rules
- listing Seventh Circuit cases
Written by the judges who cited it.
The opinion
ORDER ON REHEARING
Feb. 20, 1997
In his petition for rehearing, Jimmy Ray Pitsonbarger argues that the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), codified at 28 U.S.C. § 2254 , governing the “miscarriage of justice” exception to procedural default, should not apply to his case under the retroactivity analysis we followed in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996), and if the AEDPA by its terms must be applied retroactively here, it would be unconstitutional. Under Sawyer v. Whitley, 505 U.S. 333 , 112 S.Ct. 2514 , 120 L.Ed.2d 269 (1992), Pitsonbarger’s procedural default could have been excused not only by a showing that he was actually innocent of the underlying offense, but also by “clear and convincing evidence that but for constitutional error, no reasonable juror would [have found] him eligible for the death penalty” under Illinois law. Id. at 348 , 112 S.Ct. at -. As we pointed out in our opinion, under the AEDPA, ineligibility for the death penalty is no longer enough to excuse procedural default. Instead, new facts must demonstrate that “but for constitutional error, no reasonable fact finder would have found the applicant guilty.of the underlying offense.” 28 U.S.C. § 2254 (e)(2)(B) (emphasis added). This change, Pitsonbarger argues, is enough to attach new legal consequences to his earlier act of default, because it removes one ground on which he might have relied to have his case heard. See also Burris v. Parke, 95 F.3d 465 (7th Cir.1996).
Pitsonbarger’s argument, which asserts that an application of the AEDPA standards to this kind of claim would fall within the Burris exception to Lindh , has some force. We therefore modify our original opinion to make it clear that we are leaving open the question whether the procedural default rule of 28 U.S.C. § 2254 (e)(2)(B) may be applied retroactively in these circumstances. In this case, however, upon full consideration of the petition for rehearing, the State’s response, and the record previously before us, we con- *1307 elude that Pitsonbarger’s claim would not have qualified for the Sayuyer “miscarriage of justice” exception under the pre-AEDPA law. Pitsonbarger’s principal claim is that he was entitled to a fitness hearing. As the State points out, it is possible that the outcome of such a hearing might have been a finding that he was unfit to stand trial, and he might thereafter have been tried using the special procedures available under 725 ILCS 5/104-22 (instead of being committed and having his trial later under ordinary procedures), but this is speculative. It does not rise to the level of the “clear and convincing evidence” that he was unfit to stand trial called for by Sawyer . Therefore, even on the assumption that the AEDPA miscarriage of justice rules do not apply to pending eases like Pitsonbarger’s, we find here that his procedural default was not excused.
In all other respects, we reaffirm our original opinion. No judge in regular active service has, requested a vote on the suggestion of rehearing en banc, and, with this addendum, all of the judges on the panel have voted to deny rehearing. The petition for rehearing is therefore DENIED.