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01-3245 Cage v. McCaughtry

By: dmc-admin//September 10, 2002//

01-3245 Cage v. McCaughtry

By: dmc-admin//September 10, 2002//

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“The district judge refused to grant a certificate of appealability, but we granted one, limited however to the question ‘whether [the petitioner] was denied his constitutional right to an impartial jury by the seating of a juror who provided potentially equivocal assurances of impartiality during voir dire.’ This amounts to asking whether the judge has an obligation to dismiss a juror for cause even if no lawyer objects. In certifying this as an appealable question, we erred. The Supreme Court has never announced such a rule, and so it is not a ground upon which a state prisoner can obtain relief in a federal habeas corpus proceeding. 28 U.S.C. § 2254(d)(1); Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999). The absence of a case in the Supreme Court (or any other court, as far as we know) declaring such a rule is not surprising. There is nothing suspicious about a lawyer’s refusing to strike a prospective juror for cause. The lawyer might feel that on balance the juror was more likely to vote for than against his client. In the hearing conducted in the district court on the petitioner’s claim of ineffective assistance, his trial lawyer explained that he had thought that Werth was trying to get off having to serve on the jury, and that if he were left on against his will he would blame the government, which had instituted the case, and therefore be inclined to vote for an acquittal. Correct or not, this is the kind of reasoning that a criminal defendant wants his lawyer to engage in. A rule requiring the judge to exercise all challenges for cause would not serve criminal defendants and is hardly a plausible interpretation of the Sixth Amendment, see United States v. Simmons, 961 F.2d 183, 184-86 (11th Cir. 1992) (per curiam); cf. United States v. Ferri, 778 F.2d 985, 994 (3d Cir. 1985), let alone one endorsed by any decision of the Supreme Court.

“Both parties, however, prudently argued the real issue as well, that of ineffective assistance (though Cage’s lawyer did not get around to doing so until the oral argument), and we hereby amend the certificate to make that the issue on which an appeal was warranted. Turning to that issue, we can be brief. The district court was correct in turning down the petitioner’s claim of ineffective assistance. His lawyer had a tactical reason for his action, and it was not so far off the wall that we can refuse the usual deference that we give tactical decisions by counsel to waive a right of his client that he thinks would if asserted reduce the likelihood of the client’s being acquitted.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Curran, J., Posner, J.

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