Eric D. Holmes, Petitioner-Appellant,
Ron Neal, Superintendent, Indiana State Prison, Respondent-Appellee.
Argued March 1, 2016
Appeals from the United States District Court for the Southern District of Indiana, Indianapolis Division. Nos. 1:00-cv-01477-SEB-DML Sarah Evans Barker, Judge and 1:05-cv-01763-LJM-WTL McKinney, Judge.
Before Wood, Chief Judge, and Posner and Flaum, Circuit Judges.
Posner, Circuit Judge.
In 1992 the petitioner, Eric Holmes, was convicted of a pair of murders committed three years earlier, and the following year he was sentenced to death. On the day of the murders he'd gotten into an argument with a co-worker at the Shoney's restaurant where he worked. He and a man named Michael Vance approached the co-worker and two of the restaurant's managers, one of whom was carrying the till (containing money) out of the restaurant. They trapped the three in the foyer of the restaurant, stabbed them multiple times, and took the till. Two of the victims died.
Holmes's conviction and sentence were affirmed and post-conviction relief was denied. Holmes v. State, 671 N.E.2d 841 (Ind. 1996); State v. Holmes, 728 N.E.2d 164 (Ind. 2000). After exhausting state remedies he sought federal habeas corpus, challenging his conviction and sentence on eighteen different grounds and also claiming that he wasn't mentally competent to assist his lawyers in the habeas corpus proceeding. The district judge ruled that he was competent and having done so denied his claims on the merits. He appealed, and we held that doubts of his competence remained of sufficient gravity to warrant further consideration by the district court, and so we remanded the case. Holmes v. Buss, 506 F.3d 576 (7th Cir. 2007). On remand the district court again found Holmes competent and reinstated the denial of his claims, and again we reversed, this time instructing the district court to suspend the habeas corpus proceeding "unless and until the state provides substantial new evidence that Holmes's psychiatric illness has abated, or its symptoms are sufficiently controlled, to justify the resumption of the proceeding." Holmes v. Levenhagen, 600 F.3d 756, 763 (7th Cir. 2010). In so ruling we relied in part on Rohan ex rel. Gates v. Woodford, 334 F.3d 803, 812–13 (9th Cir. 2003), a decision that "impl[ied] a right to competence from a right to counsel." On remand from our decision in Holmes v. Levenhagen the district court granted the stay, thereby placing the habeas corpus proceeding in legal limbo.
So matters stood until 2013, when the respondent (the current superintendent of the prison in which Holmes is held) moved the district court to lift the stay and dismiss the habeas corpus proceeding with prejudice, on the authority of the Supreme Court's then-recent decision in Ryan v. Gonzales, 133 S.Ct. 696, 703 (2013). Contrary to the Ninth Circuit's decision in Rohan, Ryan v. Gonzales rejected "the assertion that the right to counsel implies a right to competence." (Gonzales, like Holmes in our case, had been convicted of murder and sentenced to death and had then sought habeas corpus in federal court.) The Supreme Court went on to say that "the District Court correctly found that all of Gonzales' properly exhausted claims were record based or resolvable as a matter of law, irrespective of Gonzales' competence. The court therefore denied Gonzales' motion for a stay. The District Court did not abuse its discretion in so holding, because a stay is not generally warranted when a petitioner raises only record-based claims subject to 28 U.S.C. § 2254(d)." 133 S.Ct. at 708 (citations omitted). Section 2254(d) states that "an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Because "review of such claims 'is limited to the record that was before the state court that adjudicated the claim on the merits …, any evidence that a petitioner might have would be inadmissible." Ryan v. Gonzales, supra, 133 S.Ct. at 708 (emphasis added and citations omitted).
As the district court recognized in its latest decision in the present litigation, the substantive claims presented in Holmes's petition for habeas corpus are "record-based" claims. The substantive claims that the state courts had resolved against him could be reconsidered by the federal courts only on the basis of the state-court record and thus only as authorized by section 2254(d). Some of the claims had not been presented to the state courts, yet those claims too could be resolved on the basis of the state-court record.
The Ryan decision approves denying a stay of the habeas corpus proceeding when sought on the ground of the petitioner's incapacity to consult with counsel until the petitioner's recovery from the incapacity (which may never come). If an incompetent client is giving nonsensical orders to counsel and otherwise acting contrary to his or her own best interests, the sensible judicial response is to appoint a guardian rather than to stay the case ad infinitum, for "at some point the State must be allowed to defend its judgment of conviction." 133 S.Ct. at 709. In reliance on Ryan the respondent (the prison superintendent) in our case asked the district court to lift the stay of the habeas corpus proceeding and reinstate the earlier dismissal of Holmes's petition for habeas corpus. The court obliged.
Holmes has appealed both rulings-his briefs run to 190 pages. The appeal from the decision to lift the stay and therefore reinstate the dismissal of Holmes's claims is docketed as No. 14-3359 in our court, and the appeal from the 2004 order dismissing Holmes's claims (the order that was reinstated) as No. 04-3549. Although no guardian has been appointed to represent Holmes in this appeal, we decline to reinstitute the stay because all his claims can be decided on the basis of the state-court record, as we'll now show. (The third appeal, No. 06-2905, has to be dismissed for lack of federal jurisdiction, because the case underlying it remains pending in the district court, and that court hasn't issued any appealable order.)
A number of Holmes's claims have been defaulted-that is, not preserved in the state court proceedings-and so can't be reviewed by us without a convincing excuse for the default. An example is the claim that the prosecution tried to prevent blacks and women from serving on the jury, in part by questioning prospective black and female jurors inappropriately.
A claim that has not been defaulted (because it had been raised in the state court proceedings and so was preserved) concerns the closing argument of defense counsel in the penalty phase of the trial, when he said he wasn't afraid to cry and beg for mercy for his client. On rebuttal the prosecutor told the jury that the defense counsel wasn't "ashamed to cry, because he cries in every case" and that he-the prosecutor-was in court to fight for the defendant's victims and that it was a shame he hadn't been allowed to present evidence about them. He had pictures of the victims in his hands as he said this even though he'd been forbidden by the judge's grant of a motion in limine to show the jury the pictures.
In response to the defense counsel's objection to the prosecutor's cry-baby statements, the judge struck them from the trial record. When the prosecutor defiantly persisted, the judge ordered the jury removed from the court room and entertained but ultimately denied a motion for a mistrial. With the jury out the judge reprimanded the prosecutor, who when the jury returned apologized to the jury, the judge, and the opposing counsel. The judge told the jury to disregard the prosecutor's previous remarks. The most objectionable such remark was that the defense counsel cries in every case, as it might be taken to imply that he was shedding crocodile tears in this one. But the judge was entitled to decide, as she did, that given the length and emotionality of the trial the prosecutor's outburst was unlikely to have affected the jury's verdict-which moreover under Indiana law at the time was only advisory; the judge had the ultimate sentencing authority and the objectionable remarks had been made in the penalty phase of the trial. See Darden v. Wainwright, 477 U.S. 168, 179–83 (1986).
Another claim that was not defaulted relates to testimony by the deputy sheriff who had driven Holmes to jail after his arrest. He testified that Holmes had said "first degree murder" repeatedly during the drive. The deputy hadn't mentioned this to the prosecutor who tried the case until shortly before the deputy testified, though he says he'd mentioned it to others previously. The trial judge granted an overnight recess to allow defense counsel to prepare cross-examination of the deputy sheriff. Allowing a recess was preferable to granting a mistrial, the remedy urged by counsel. Nor is it apparent that Holmes was significantly harmed by the testimony; the deputy didn't say that Holmes had confessed to committing first-degree murder. Holmes has contended that the deputy sheriff's statements were false, but there is no ...