Habeas Corpus – ineffective assistance of counsel

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U.S. Court of Appeals for the 7th Circuit

Criminal

Habeas Corpus – ineffective assistance of counsel

Petitioner challenges his murder conviction because his trial counsel was ineffective in failing to object when the state prosecutor commented on his failure to testify. The prosecutor said that it is the state’s burden to prove the defendant committed the crime but also said that “If that person whom committed the offense don’t talk, how would we ever know? We would speculate. Does it mean the person wasn’t shot and killed, it didn’t happen? It happened, and that’s what we have to prove to you, not why it happened.” The state court applied the wrong legal standard when it evaluated the defendant’s claim under a due process standard, not a Fifth Amendment standard. It also erred in saying the prosecutor’s comments on his silence were not used to indicate the defendant’s guilt. Evidence of motive would have been probative of guilt. The court’s application of the law was objectively unreasonable for AEDPA purposes.

However, under AEDPA the court had to apply the correct standard in a de novo review to determine whether the failure to object warranted reversal. It applied the Strickland test to determine that the defendant could not establish a reasonable probability that but for counsel’s errors the result of the trial would have been different. Even though there was a prior hung jury, only in close cases should that lead to a finding of prejudice. This is not such a case. There is no reasonable probability that adequate performance by counsel would have changed the outcome of the trial.

Affirmed.

12-3844 Ford v. Wilson

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division, Tinder, J.