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Habeas – exhaustion, effective assistance

Freddie L. Byers, Jr., v. Basinger, 7th Cir No. 09-1833, 7/9/10

7th Circuit decision

Habeas – Exhaustion

To exhaust a federal claim, a 2254 petitioner must have “fairly presented” it to the state court.

… We use four factors to evaluate whether a petitioner has “fairly presented” his claim: “1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts; 3) whether the petitioner framed the claim in terms so particular as to call to mind a specific constitutional right; and 4) whether the petitioner alleged a pattern of facts that is well within the mainstream of constitutional litigation.” See White v. Gaetz, 588 F.3d 1135, 1139 (7th Cir. 2009).

Byers failed to exhaust one ground of his ineffective-assistance claims. In state court, he argued that his postconviction counsel was ineffective for failing to adequately present this ground, but he did not challenge trial counsel’s representation on this ground.

Habeas – Effective Assistance

Byers can’t demonstrate prejudice due to “disturbances” occurring during his trial (which counsel failed to contemporaneously address, hence fall within an effective assistance argument).

… While it is well established that a defendant’s due process rights include a right to an unbiased and impartial jury, it is equally clear that not every outburst or disruption warrants a new trial. See United States v. Olano, 507 U.S. 725, 738 (1993) (holding that, because “[i]t is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote,” a new trial is only required where there is discernible prejudice); Irwin v. Down, 366 U.S. 717, 728 (1961).

We have no record evidence of what was said, and we cannot not find prejudice stemming from ambiguous or innocuous comments. In Whitehead v. Cowan, we found “innocuous” a victim’s mother’s outburst asking petitioner why he had killed her daughter—an outburst that occurred when the jury was seated but the judge had stepped out. See 263 F.3d 708, 724-25 (7th Cir. 2001); see also United States v. Al-Shahin, 474 F.3d 941, 949 (7th Cir. 2007). In our case, of course, the disturbances occurred when the trial judge was able to monitor and address them immediately—which he did by excusing the jury and admonishing the spectators to maintain proper etiquette. At the end of trial, the judge questioned the jury, and not one juror indicated that the disturbances or any other event affected his or her ability to render a fair verdict. See Whitehead, 263 F.3d at 726.

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