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Joe Freeman v. Chandler, 7th Cir No. 10-1467, 6/20/11

seventh circuit court of appeals decision

Habeas – Successive Petition – Rule 60(b) Motion

A Rule 60 motion for relief from (habeas) judgment amounts to an impermissible successive petition – which the district court lacks jurisdiction to entertain – if it raises arguments forbidden by 28 U.S.C. § 2244(b)(1) or (2), Gonzales v. Crosby, 545 U.S. 524 (2005). Although the district court held that Freeman had waived the issue (right to conflict-free counsel) before raising it in his Rule 60 motion, given that the state had discussed that very issue throughout 11 pages of its answer to the petition, and the district court had itself discussed the merits of the issue in its decision, the issue was incorrectly deemed waived, and in any event discretion should be exercised to reach the merits:

In short, the question of conflict-free counsel received attention from everyone involved in Freeman’s habeas case, which suggests it was not waived. And, if not waived, the district court should have addressed this argument fully on the merits. Therefore, the district court should not have denied Freeman’s Rule 60(b) motion. The motion correctly observed that the district court had overlooked one of his arguments for habeas relief. Hence, the motion was not a successive habeas petition. See Gonzales, 545 U.S. at 538.

Ordinarily the district court should rule on the merits of habeas petitions in the first instance, see, e.g., Holleman v. Duckworth, 155 F.3d 906, 912 (7th Cir. 1998), but we nonetheless have discretion to reach the merits of a habeas claim although they were not first considered by the district court, see Kaczmarek v. Rednour, 627 F.3d 586, 595 (7th Cir. 2010); Sprosty v. Buchler, 79 F.3d 635, 645-46 (7th Cir. 1996). …

Counsel – Conflict of Interest – Testifying as Defense Witness

Challenge to counsel having testified as a defense witness proceeds as a Strickland (deficient performance – prejudice) claim, rather than a Cuyler v. Sullivan (conflict of interest) claim. Although ethical rules generally bar an advocate from testifying on behalf of the client (footnote 2, citing Ill. Rules of Prof. Conduct 3.7(a)), “the rules of ethics are not necessarily coextensivewith Strickland’s objectively reasonable standard of care.” Because this issue is “legally murky and involved,” the court doesn’t address whether counsel performed deficiently, but instead turns directly to prejudice: there was none, counsel having testified favorably to the defense, and a jury having been waived there could be no possibility of counsel’s dual role confusing the fact-finder.

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