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Federal habeas relief can’t be based on jury instruction containing error of state law

Donovan M. Burris v. Judy P. Smith, 7th Circuit Court of Appeals No. 15-2891, 4/28/16

Burris’s claim that a supplemental instruction to the jury about how to determine “utter disregard for human life” doesn’t present a claim for federal habeas relief because it presents only a claim about an error of state law, not a claim that the instruction violated federal constitutional law.

At Burris’s trial for first degree reckless injury, the jury asked whether they could consider Burris’s actions after the incident in deciding whether Burris’s actions showed utter disregard for human life. Instead of simply saying “yes,” the trial court gave a very ambiguous, round-about explanation that the jury must consider all the circumstances, and even then managed to emphasize that after-the-fact conduct doesn’t “negate” or “prelude” a finding of utter disregard. (Slip op. at 4-5). As described in our post on the decision, the Wisconsin Supreme Court rejected Burris’s claim that this answer misled the jury.

His habeas challenge to the supreme court’s conclusion fails because he hasn’t shown it was reasonably likely that the jury applied the instruction in a way that violated the U.S. Constitution, as required under Estelle v. McGuire, 502 U.S. 62, 72 (1991), despite his claim the instruction: 1) alleviated or shifted the government’s burden of proof; and 2) gave little or no weight to constitutionally relevant evidence:

To be sure, an instruction that shifts the government’s burden of proof violates due process and may form the basis for habeas relief. …. But an instruction that merely assigns little or no weight to one category of evidence does not shift the burden of proof. Even if the jury did ignore after-the-fact conduct in making its determination, the government still had to prove the element of utter disregard beyond a reasonable doubt. As the Supreme Court has explained, “excluding a significant line of evidence [might make] it easier for the State to meet the requirement of proving mens rea beyond a reasonable doubt …. But any evidentiary rule can have that effect.” Montana v. Egelhoff, 518 U.S. 37, 55 (1996). And unlike shifting the burden of proof, excluding consideration of a category of evidence might benefit the defendant. In this case, Burris not only expressed remorse after-the-fact, he also quickly fled the scene and evaded the police for five months. So even if the jury did assign less weight to after-the-fact conduct, it might have helped Burris. In sum, the instruction perhaps affected the jury’s consideration of the evidence, but it did not affect the state’s burden.

An instruction that prevents the jury from considering constitutionally relevant evidence also violates due process. See Boyde [v. California], 494 U.S. [370,] 380 [(1990)]. In Boyde, for example, the instruction prevented the jury from considering constitutionally relevant mitigating evidence about the defendant’s character and background at his capital sentencing. Id. at 376. Burris argues that like Boyde, this instruction prevented the jury from considering relevant evidence. But Boyde was a capital case involving instructions during sentencing. This is a noncapital case involving an instruction prior to a determination of guilt. The Supreme Court has clarified that “in a noncapital case … there is no counterpart to the Eighth Amendment’s doctrine of ‘constitutionally relevant evidence’ in capital cases.” Gilmore [v. Taylor], 508 U.S. [333,] 342 [(1993)]. As a result, the fact that the instruction may have precluded consideration of evidence relevant under state law does not mean that it violated the Constitution.

(Slip op. at 9-10). Nor, the court concludes, has Burris shown the instruction was reasonably likely to mislead the jury, or that the Wisconsin Supreme Court erroneously analyzed whether the jury was misled. (Slip op. at 11-12).

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