Leon Carter v. Lizzie Tiegels, No. 23-1266, 4/24/25
In a knotty habeas case, the complexities of habeas corpus law mean that Carter’s challenges to how COA handled his no-merit appeal and an underlying (and unique) claim of juror intrusion do not merit relief.
During the jury deliberations at Carter’s trial, the jury passed a note to the bailiff with the intent that it be delivered to the judge. (p.3). The note read: “What happens if we do not unanimously agree on one of the six counts?” (Id.). Rather than passing the note along, the bailiff took it upon himself to explain to the jurors that “you need to just work and reach a unanimous verdict.” (Id.). When Carter learned of this interaction, he moved for a mistrial. (Id.). The motion was denied and the court “explained that because she would have given the same instruction, the verdict retained its integrity.” (Id.).
On appeal, appointed counsel filed a no-merit report. (Id.). Counsel’s brief specifically analyzed the bailiff’s interaction with the jury. (Id.). COA then issued an order summarizing the documents it had reviewed (including counsel’s no-merit report) and which concluded “no issue of arguable merit could be pursued on appeal.” (p.4). In a footnote, COA explained that it was disinclined to “address every issue that arose in this case.” (Id.). In a single sentence, COA referenced the submissions of counsel and stated that it agreed with his analysis of the issues discussed therein. (Id.).
Carter then petitioned SCOW for review and argued (for the first time, obviously) that COA’s treatment of the no-merit deprived him of a meaningful appeal. (Id.). When he did not prevail, he ultimately pursued habeas relief, which also failed in the district court. On appeal, the Seventh Circuit therefore addresses two issues:
Did COA’s resolution of the no-merit appeal comply with Anders v. California?
As a threshold matter, the Court first observes that this claim may not have been sufficiently “exhausted,” as it believes Carter should have filed a motion for reconsideration in the court of appeals or (puzzlingly) “completed a round of state postconviction litigation.” (p.7). However, the State has waived an exhaustion defense, so the Court is therefore permitted to reach the merits. (Id.).
The crux of Carter’s argument is that the bailiff’s communication with the jury violated the holding of a controlling SCOTUS case, United States v. Remmer (more on that case momentarily). (p.8). Under Carter’s reading of Anders and its progeny, COA therefore erred in rejecting that issue in a conclusory footnote. (Id.). He also claims that COA’s choice of language–that issues “lacked arguable merit”–did not satisfy the requirement that the state appellate court decide “whether the case is wholly frivolous.” (Id.).
The Court is unpersuaded and finds that COA’s treatment of this no-merit appeal satisfied the requirements of Anders, as COA “independently reviewed” the voluminous record and briefs, explicitly adopted and approved of counsel’s analysis, and cited Anders in its decision. (p.8). The Court cannot reverse simply because the issue was resolved in a footnote. (Id.). Moreover, COA was also not required to use the magic word “frivolous,” especially when the words used are essentially synonymous. (p.10). Carter’s claim that COA erroneously analyzed his Remmer claim is also distinct from whether Wisconsin’s no-merit procedure was adequate. (Id.). Finally, even though COA adopted the reasoning of appointed counsel, the Court holds it is not required to review that brief’s legal analysis. (p.11). If Carter believes his appointed attorney mishandled the appeal, that is another issue altogether and one not presented in this habeas appeal. (Id.).
Did the State court misapply Remmer?
Remmer is a slim decision from the 1950s, where SCOTUS held:
In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant
Under Carter’s reading, that decision entitles him to an evidentiary hearing as a result of the bailiff’s interference–an issue that Carter’s attorney apparently labeled as frivolous in his no-merit report.
Carter’s first hurdle, however, is that the Court is unsure whether this is, in fact, a constitutionally-derived rule. (p.13). Although some SCOTUS cases have “come close to” or “hinted at” holding that Remmer’s rule is constitutionally-derived, “[t]he Court has not unequivocally held that Remmer is a constitutional holding, and Remmer offers no reason to suggest it is constitutionally compelled.” (p.15). The Seventh therefore explicitly states that the issue requires resolution by SCOTUS. (p.16). The State apparently punted on this issue, however, so the Court proceeds to the merits. (Id.).
Remmer’s dearth of reasoning, coupled with a lack of interpretative guidance since that case was issued in 1954, means that the Court has a difficult task in determining what the “clearly established” federal law is for the purposes of AEDPA. (p.17). Its task is to determine whether Carter’s case presents “an analogy” to what occurred in Remmer. (Id.).
Remmer involved an apparent attempt to bribe a juror–a fact pattern easily distinguishable from what transpired in this case. Although the Court goes down something of a rabbit hole in determining what generally applicable “rule” arises from that unique fact pattern, it ultimately relies on its own circuit precedent in resolving the question. (p.21). In an earlier habeas case, the Court held that clearly established law required the jury intrusion to have “had a great impact on an average juror’s deliberation” in order to trigger the presumption of prejudice. (Id.). The lower court’s finding that the merely procedural instruction could not have prejudied Carter is not unreasonable so, amid some more habeas wrangling, the Court ultimately affirms. (Id.).
