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Terry C. Brown v. Finnan, 7th Cir No. 08-3151, 3/17/10

7th circuit court of appeals decision

Habeas – Ineffective Assistance – Extraneous Juror Influence
1. Where both defendant and homicide victim were African-American, in-court proclamation from latter’s mother that “the situation is racist” is deemed to be “ambiguous and apparently innocuous.” It follows that counsel’s failure to pursue the matter was reasonable.

Remmer v. United States, 347 U.S. 227 (1954) (unauthorized extraneous contact with juror creates presumption of prejudice and thus requires hearing), distinguished: “we have repeatedly held that no Remmer hearing is necessary when the challenged statement is both ambiguous and innocuous.”

2. Same person’s out-of-court statement that courthouse should be bombed like World Trade Center wasn’t prejudicial, where there was no showing any juror heard or was made aware of it. Nor in any event would the statement have been prejudicial, because it didn’t relate to Brown’s guilt or innocence.

3. Appellate counsel need not raise every nonfrivolous issue, but performs deficiently if he or she fails to argue an issue that both obvious and clearly stronger than the issues raised. There must be a reasonable probability that the omitted issue would have altered the outcome of the appeal, had it been raised. Appellate counsel’s failure to raise the statements noted above were properly ignored (“reasonable appellate counsel could wisely disregard Ms. Young’s statements in favor of issues that weigh on Brown’s guilt and sentence”). Oswald v. Bertrand, 374 F.3d 475 (7th Cir. 2004), distinguished.

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