Split 7th Circuit orders resentencing for murder defendant after ‘literally no assistance’

A convicted murderer who during sentencing received “literally no assistance from his lawyer” won resentencing after a majority of a 7th Circuit Court of Appeals panel reversed the denial of his habeas petition. A dissenting judge, however, opined that the majority’s holding improperly expands U.S. Supreme Court precedent.

Judge Diane Wood wrote Tuesday for the majority joined by Chief Judge Diane Sykes in Roderick V. Lewis v. Dushan Zatecky, 20-1642. Judge Michael Brennan dissented from the grant of habeas relief to Roderick Lewis.

Lewis was arrested in 2011 in connection with the 1999 murders of 14-year-old Sidney Wilson and 16-year-old Richard Rogers. Rogers and Wilson were running a Fort Wayne drug house when Lewis, Christopher Hale and Kajuanta Mays devised a robbery plan that ended in the murders. Lewis did not pull the trigger in either murder but was present and had his uncle bury the murder weapon.

Lewis was represented by now-retired attorney Jeff Raff during his murder trial, where Lewis was convicted on two counts of felony murder. During sentencing, Raff made just one remark: “Judge, I’m going to defer to Mr. Lewis if he has any comments. I don’t have anything to add.” Lewis was then sentenced to the maximum 130 years.

Lewis’ direct appeal failed, so he proceeded to post-conviction relief proceedings, where Raff testified that he did not research Lewis’ mental health history, which included a suicide attempt, and he did not speak to his relatives or friends.

“Essentially Raff thought that Lewis was a hopeless cause, and so there was nothing useful Raff could do,” Wood wrote in the Tuesday opinion.

Back at the Indiana Court of Appeals, a panel agreed with Lewis that Raff was deficient but determined the deficiency was not prejudicial.  The COA addressed Lewis’ PCR argument under Strickland v. Washington, 466 U.S. 668 (1984), but Lewis argued, and the 7th Circuit majority agreed, that the proper review was under United States v. Cronic, 466 U.S. 648 (1984).

Lewis next sought habeas relief in the Indiana Southern District Court, but his petition was denied, prompting the instant appeal.

 “We conclude that the decision of the last responsible state court was contrary to Supreme Court precedent, insofar as it held that Strickland, not Cronic, furnished the applicable rule, and it was an unreasonable application of Cronic, insofar as it focused on that case,” the majority held.

“… Although it is possible, as the Supreme Court itself did in Cronic and as the district court did here, to identify particular circumstances in which the Cronic rule will apply, we must take the Court at its word when it says that it is simply offering illustrations of the rule announced by the Court,” Wood wrote. “… Instead, ‘state courts must reasonably apply the rules squarely established by [the Supreme Court]’s holdings to the facts of each case.’

“… As applied here, that means that we must pay heed to Cronic’s core holding: that a showing of prejudice is not necessary in ‘situations in which counsel has entirely failed to function as the client’s advocate.’

Specifically, Cronic held that three “circumstances … are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Those circumstances include a “complete absence of counsel at a critical stage of the trial,” counsel’s “total failure” to engage in a meaningful adversarial test of the prosecution’s case, and other circumstances where “the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.”

Finding that Lewis’ sentencing was a “critical stage” of his trial, the majority held that Raff’s “assistance” during trial “was nothing but a statement that he was bowing out.”

“If Raff was going to fall back to a plea for mercy, or an effort to convince Lewis to demonstrate remorse, he had to take some step in that direction. He did not,” the majority concluded. “Instead, he gave up on Lewis and left him entirely without the assistance of counsel at the sentencing stage of a felony murder case. Rare though Cronic cases may be, we think that this one qualifies.

“We therefore REVERSE the judgment of the district court and REMAND this case for the issuance of a writ of habeas corpus, limited to the sentencing phase of petitioner Roderick Lewis’s case.”

But in a decent nearly equal in length to the majority opinion, Brennan said his review of Lewis’ habeas petition ends with the Antiterrorism and Effective Death Penalty Act of 1996.

Cronic’s scope is narrow, AEDPA review is narrow, and AEDPA review of a Cronic case is especially narrow,” Brennan wrote. “Bound by AEDPA, I would reject Lewis’s habeas petition because no Supreme Court case has applied Cronic to the novel circumstances presented by his claim. I respectfully dissent.

Brennan’s dissent focused largely on Schmidt v. Foster, 911 F.3d 469, 478 (7th. Cir. 2018) (en banc), where he said the 7th Circuit endorsed the understanding that Cronic should be read narrowly and applied rarely.

“According to the majority opinion, Schmidt differs in its ‘critical stage’ and ‘degree of help that counsel offered.’ … But Schmidt’s relevance here is in its mode of analysis,” he wrote. “That en banc decision teaches three lessons about Cronic: it is narrow in its rule, it gives state courts ‘broad discretion’ in adjudicating the application of its exceptions, and it has three — and only three — exceptions.”

“These lessons led this court in Schmidt to address that Cronic‐based habeas petition with the requisite particularity under AEDPA,” the dissent continued. “Generalizing Cronic did not win the day there and should not do so here.”

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