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Classification: Murderer
Characteristics: Robbery
Number of victims: 1
Date of murder: January 29, 1980
Date of birth: December 17, 1956
Victim profile: Kenneth W. Chambers, 31 (taxicab driver)
Method of murder: Shooting (.38 handgun)
Location: Marion County, Indiana, USA
Status: Executed by lethal injection in Indiana on November 20, 1997

DOB: 12-17-56
DOC#: 11746 Black Male

Marion County Superior Court
Judge John Tranberg

Prosecutor: J. Gregory Garrison, John D. Tinder

Defense: Thomas Alsip, L. Craig Turner

Date of Murder: January 29, 1980

Victim(s): Kenneth W. Chambers B/M/31 (No relationship to Burris)

Method of Murder: shooting with .38 handgun

Summary: Kenneth Chambers was a cab driver in Indianapolis. His nude body was found in an alley near Fall Creek Parkway, face down and stuck to the ground by a pool of his frozen blood. His hands were tied behind his back, and there was a small caliber gunshot wound to the right temple.

The cab company log revealed that Burris had called for a cab and was Chambers’ last fare. A witness testified that Burris returned to his apartment with Emmett Merriweather and James Thompson with wads of money and a cab driver’s run sheet and clipboard.

Burris was arrested later that day at the apartment of his girlfriend where a .38 caliber handgun was found hidden in a stereo speaker. The ISP Lab confirmed it to be the murder weapon. Chambers’ cab was found parked nearby.

Burris later confessed to a cellmate that he had forced Chambers to lie face down on the freezing ground, and shot him in the head as he begged for his life.

Accomplice Thompson was later convicted and sentenced to 50 years imprisonment. Accomplice Merriweather testified at both trials and was sentenced to 15 years imprisonment.

Conviction: Felony-Murder

Sentencing: February 20, 1981 (Death Sentence)

Aggravating Circumstances: b(1) Robbery

Mitigating Circumstances: sociopathic personality, accomplices could have committed murder, acts were insufficient to warrant death, abandoned by his parents (presented at 2nd trial), raised in house of prostitution, at age 12 he was declared a ward of county due to neglect, obtained GED

On Remand: Burris was again sentenced to death on 11-22-91 by Judge Patricia J. Gifford after a hung jury in the death phase.




Kenneth Chambers was a cab driver in Indianapolis. His nude body was found in an alley near Fall Creek Parkway, face down and stuck to the ground by a pool of his frozen blood. There was a small caliber gunshot wound to the right temple. The cab company log revealed that Burris had called for a cab and was Chambers' last fare. A witness testified that Burris returned to his apartment with Emmett Merriweather and James Thompson with wads of money and a cab driver's run sheet and clipboard. Burris was arrested at the apartment of his girlfriend where a .38 caliber handgun was found. The ISP Lab confirmed it to be the murder weapon.


Amnesty International

Burris was convicted of the Jan. 29, 1980, murder of Indianapolis cab driver Kenneth Chambers, whom he robbed of $40, then ordered to strip naked before shooting him point-blank in the head and leaving his body in an alley. Witnesses to the execution said Burris said, "beam me up" prior to being given a lethal dose of chemicals in the execution chamber at Indiana State Prison. He was pronounced dead just before 1 a.m. local time. The Indiana Supreme Court turned down his final appeals on Wednesday.

Death penalty opponents said Burris should not have been executed. Amnesty International said Burris was brain-damaged after he shot himself accidentally with his own gun in a robbery attempt in 1976, and that Burris received a miserable legal defense at his murder trial. During the death penalty phase of the trial, jurors did not learn of his childhood living amid prostitutes and drug dealers. Burris had been told his real mother abandoned him in a trash can as a baby.

He was sentenced to death a 2nd time in a 1991 court proceeding, but just 11 hours before Burris' November, 1995 date with the executioner, an appeals court judge halted the process to review his convoluted legal history. Several judges right up to the U.S. Supreme Court reviewed his case and decided he should be executed.


Protesting Death Until the End

by Richard W. Smith

Earlham World Online

During the last hours of Gary Burris' life, close to 100 demonstrators, including 7 Earlham students, participated in a protest and candlelight vigil, imploring Governor Frank O'Bannon to commute Gary's execution to life imprisonment with chants of, "Pick up the phone! -- Give Gary life!" and "Pick up the phone! -- Don't kill tonight!" and "Hey, Frank! -- Pick up the phone!"

For reasons lost in obscurity, executions in Indiana are committed shortly after midnight. Because of the time difference between Indianapolis and Michigan City, Indiana where the execution was committed at the State Prison, the execution was scheduled to begin after 1:00 a.m. Indianapolis time. This caused some inconvenience if not hardship to some of us who were ill-prepared to brave the near-freezing temperatures during that extra hour.

The demonstration was well organized and proceeded for the most part with dignity and elements of funeral solemnity which included a very moving rendition of "Amazing Grace", The Lord's Prayer, and other prayers including those for Kenneth Chambers and his family. Kenneth Chambers was the cab driver who was robbed and murdered 17 years ago; Gary Burris was being executed for his part, along with two others, in those crimes, which he maintained to the very end he could not remember.

The camaraderie and shared grief and tears, not only for the injustices of the loss Gary Burris and that of his family and friends, but also for the loss shared by the family and friends of Kenneth Chambers, were perhaps the most deeply felt elements of the demonstration. The brief flurry of media coverage, particularly that of the local TV stations, was almost a distraction for many of us. The brief circus atmosphere that they provided soon gave way to the more solemn candlelight death vigil shortly after the TV cameras and reporters left to get their coverage on the 11 o'clock news.

There were many memorable signs, slogans, and quotes there that expressed abolitionist sentiments: there was the big orange sign that said simply, "'Thou Shalt Not Kill'- God"; another prominent sign with the message, "Honk if you oppose the death penalty"; several expressed variations of, "'An eye for an eye only makes the whole world blind'--Mahatma Gandhi" ; and "The Death Penalty Is Dead Wrong!"; Also, "Why do we KILL PEOPLE when they KILL PEOPLE to show that it's wrong to KILL PEOPLE"; and one of my favorites, " 'For me, the unnegotiable bedrock on which a society must be built is that killing by anyone, under any conditions, cannot be tolerated. And that includes the government.' -- Sister Helen Prejean, author of "Dead Man Walking" ".

The hospitality of St. Thomas Aquinas Church was very much appreciated by many of us. Their offer of coffee, rest-rooms, and WARMTH where we could thaw out were most welcome. A meeting after the death vigil was held there to discuss future plans to abolish the death penalty in Indiana. There was the optimistic hope that Gary's execution would be the very last one in Indiana.


Amnesty International

Fight Against the Death Penalty

The State of Indiana has scheduled the execution of Gary Burris for November 20, at 12:01 a.m. CST. The Parole Board voted against recommending clemency. Gary's life is now in the hands of Governor Frank O'Bannon, who can still grant clemency in the form of commuting Gary Burris' sentence to life in prison without the possibility of parole, which is an option the juries and judges who have considered Gary's case never had. Gary's case was tried to different juries twice on the issue of the death penalty at a time when a death sentence was the only alternative to a sentence whereby Gary could do as little as 30 years of actual time in prison, a sentence the Indiana Attorney General's Office, in papers filed with the courts, admitted would have been appropriate based upon the facts of the case and various mitigating factors. Neither jury could unanimously vote in favor of the death sentence.

Due to a subsequent change in the laws, a judge and jury trying this case today could consider a sentence of life without parole and there have been numerous more heinous murders with fewer mitigating factors successfully prosecuted as life without parole cases in Marion County since the change in the law. The Parole Board's decision to deny a recommendation of clemency was not even unanimous.

In a 4-1 vote, Member Tom Jeffers, appointed by Gov. O'Bannon himself (who as a legislator authored Indiana's death penalty statute) dissented from the Board's decision and recommended that clemency be granted. Neither jury, even when having death or 30 years as the only alternatives, could vote to kill Gary Burris. No judge who sat through the trial and heard the evidence ever had the option of imposing a life without parole sentence on Gary Burris. No appellate court ever had the option of a life without parole sentence. The only person with that option, which is a punishment more severe than even the juries who tried the case after hearing all of the evidence could agree upon, is Gov. O'Bannon.

We express compassion for the family of the murdered victim. We know, however, that executing Gary would not right that wrong. It would only perpetuate a cycle of violence that demonstrates that the death penalty has no deterrent effect and sends just the opposite message to the citizenry. Consider that in the last three years Indiana has come within hours of executing Gary Burris and has executed Gregory Resnover and Tommie Smith.

Yet, for the third consecutive year Marion County, and Indianapolis, the county and city in which all of these crimes occurred and where there was the most media coverage of the executions, is on track to set another record for the number of homicides in a year. The granting of clemency will demonstrate the sanctity of human life and demonstrate that the answer to violence and killing is not more violence and more killing.

To understand a bit more about some of the mitigating factors relevant to the clemency issue before the Governor a biographical sketch of Gary Burris is helpful. Gary was abandoned as an infant and doesn't know the names of his parents or his birth date. Gary was raised by Jewel, a pimp and nightclub owner, and told he had been found in a trash can. Jewel used the boy to time the prostitutes' customers, run drugs and illegal alcohol on Sundays, and as a shield from the law during frequent raids.

Though police witnessed Gary's presence in this center of vice and crime, he was not removed from it. At 13, Gary watched as Jewel shot and killed a woman and was carted off to jail and eventually prison. Finally Gary was placed in a foster home. When asked, he told his foster mother that for Christmas he just wanted a birth certificate or some information as to who he was. Gary did not choose a life of crime, he was born into it.

Gary's death sentence was based on testimony of a "jailhouse informant" who avoided being tried as an habitual criminal and received a reduced sentence in exchange for his testimony about a "confession" Gary allegedly made while awaiting trial and two co-defendants who, after being arrested for the murder, both implicated Gary as the triggerman in return for much more lenient sentences than the life without parole sentence Gary is requesting. One of them is a free man walking our streets today.

In fact, prior to and during trial the Prosecutor offered a plea agreement to Gary that is less harsh than a life without parole sentence. Senior officials at the Indiana State Prison have sworn, under oath, that Gary Burris is a model prisoner. He has been given a position of trustee for some years. During the 17 years Gary has been on death row, there have been escape attempts and a hostage incident. Gary took no part in these events. He is highly respected by inmates, guards and officials alike.

The State of Indiana cannot present Gary Burris with a birth certificate, but they have served him with a death warrant.


Abolish Archives


The State of Indiana has set an execution date for death-row inmate Gary Burris. Burris is scheduled to be executed on November 20, 1997.

The case of Gary Burris was subject of an Urgent Action by Amnesty International in 1995. Burris' lawyers were back then able to persuade a U.S. Circuit Court to hear his 2nd federal habeas corpus motion. Apparently, the federal court recently denied relief, and the execution date should be considered extremely serious.

Preparing for the execution, death row guards already threw 2 convicts into "the Hole", or administrative segregation, for fear of erupting violence around the execution, wrote 1 of them, Lorenzo L. Stone-Bey (DOC # 10006). After the 1994 execution of Ajamu Nassor in Indiana, an officer was knifed to death in retaliation.

Burris is an accused murderer of a taxi driver. His supporters offered a strong case in mitigation and argued his personal background should lead to a commutation of his death sentence. They said Burris was an orphan and grew up in a brothel, where he was led into a life of crime. They also claimed Burris might be innocent of murder.

Indiana resumed state killing in 1981, and to date has executed 4 condemned men. The last execution in the state was in 1996.


Burris v. State, 465 N.E.2d 171 (Ind.1984) (Direct Appeal).

Defendant was convicted before the Marion Superior Court, Criminal Division, John Tranberg, J., of murder, and he appealed. The Supreme Court, Pivarnik, J., held that: (1) selection of death-qualified jury was not improper; (2) felony-murder information was not deficient because it failed to specifically include intent element of underlying robbery in its language; (3) defendant had no standing to object to search of girl friend's apartment; (4) although penalty-phase instruction was erroneous, error was harmless; (5) lack of written jury findings does not make death penalty statute unconstitutional; (6) trial court did not err in imposing death penalty without a specific jury determination that defendant had been convicted of murder as principal or as an accomplice; and (7) evidence supported trial court's findings as to existence of aggravating circumstance justifying death penalty. Affirmed. Prentice, J., concurred in result.

PIVARNIK, Justice.

Defendant-appellant Gary Burris was convicted of Murder, Ind.Code § 35-42- 1-1 (Burns Repl.1979), at the conclusion of a jury trial in Marion Superior Court on December 4, 1980. The State sought the death penalty and the jury returned a recommendation of death. The trial court sentenced Burris to death on February 20, 1981. After several extensions of time in which to file his appellate brief, Burris now appeals his conviction and sentence.

The defendant raises twelve errors on appeal, concerning: 1) whether the jury was improperly selected because of the questioning methods used during voir dire; 2) whether the information for felony-murder is insufficient by its failure to specifically include the intent element of the underlying robbery in its language; 3) whether the trial court erred in admitting certain evidence seized from the apartment where the defendant was arrested; 4) whether the trial court erred in failing to disclose to the jury the full details of a plea agreement made to a witness for the prosecution; 5) whether certain physical evidence was erroneously admitted because of alleged breaks in the chain of custody; 6) whether final instruction 32 properly covered subsidiary and incidental evidence; 7) whether the prosecutor used inflammatory and prejudicial language in the final argument of the penalty phase of trial; 8) whether the jury was properly instructed on weighing aggravating and mitigating circumstances, and whether the jury should return written findings of fact; 9) whether the trial court erred in imposing the death penalty without a specific jury determination that the defendant had been convicted of murder as a principal or as an accomplice; 10) whether there is proportionality review of death penalty cases in Indiana; 11) whether the defendant received effective assistance of counsel during the trial court proceedings; and 12) whether there is sufficient evidence to support the trial court's findings as to the existence of an aggravating circumstance justifying the death penalty.

The evidence most favorable to the State reveals that on the morning of January 29, 1980, Gwen Tevebaugh and her neighbor, Calvin Howard, discovered the body of a dead man in an alley in the 3200 block of East Fall Creek Parkway in Indianapolis. Tevebaugh had been awakened earlier that morning by a noise and then heard what she clearly knew to be a gunshot. Tevebaugh was not able to see anything because of the darkness but she noted the time of 2:23 on her clock. After Mr. Howard phoned the police, Sergeant Donald Campbell and Officer Jon Layton received the dispatch on the homicide.

Upon arriving at the alley, the two men discovered the body, nude except for a pair of socks, lying face down and stuck to the ground by a pool of its frozen blood. Identification found at the scene showed that the deceased was Kenneth W. Chambers, age 31. The police also noticed what appeared to be a small caliber gunshot wound to the right temple. Elizabeth Gardner, a dispatcher for the Northside Cab Company, identified Chambers as a driver for the company. Chambers drove Cab 305.

On the morning of January 29, 1980, both Chambers and Gardner were working. Around 1:30 a.m. Gardner received a call for a cab to pick up fares at the 1800 block of North College. Gardner put a request out for a cab and Chambers responded that he would take the call. Both parties stipulated that a call to Northside Cab was received at 1:48 a.m. for transportation from 1821 North College to 1501 East 38th and that this call was assigned to Cab 305. The call was made by a person identified as "Williams."

1821 North College is the address of the M & J Social Club where Thelma Williams was employed as a barmaid. Williams testified that she telephoned the cab company at the request of defendant Burris. Williams said she knew the defendant and stated he usually ran around with two other men, named "Emmett" and "James." As Williams recalled, Emmett was with Burris at the M & J Social Club on the morning of the murder. Williams assumed the cab arrived within fifteen minutes of her call because Burris left at that time.

Carol Wilkins was another witness called by the State. At the time of the murder, Carol Wilkins was living at 1827 North College above the M & J Social Club. Carol stated that defendant Burris rented the apartment and that he was dating her sister, Debra Wilkins. On January 28, the day before the murder, the defendant arrived at the apartment around 5:40 p.m. Carol testified that James Thompson and Emmett Merriweather joined the defendant. Burris had told Carol that he had a deadline to pay $230 back rent and telephone bills. That evening when Burris left the apartment, he put a .38 pistol in his pocket. Carol identified State's Exhibit 16 as being similar to the .38 pistol.

Later, Burris, Merriweather, and Thompson returned to the apartment. Burris was carrying a clipboard with a paper on it, which he tossed on the bed. Carol had ridden in taxicabs before and recognized the paper on the clipboard as a cab driver's run sheet. The defendant burned the run sheet and flushed the remains down the toilet.

Merriweather and the defendant then had a dispute over a gun. The defendant wanted to give Merriweather the gun but Merriweather refused to take it. The defendant kept the gun. Carol also saw that the defendant had quite a bit of money. There were two wads of money, big enough to create a noticeable bulge in both of the defendant's front pockets. Carol later heard about the cab driver who had been shot and she put the pieces together.

After some police investigation, Emmett Merriweather and James Thompson were arrested in connection with the death of Chambers. Both men, along with other sources, informed the police that the defendant was with them at the time of the murder. Acting upon information that defendant Burris was at Debra Wilkins' apartment and planned to leave town, the police moved quickly and arrested Burris at 2035 North Meridian in Indianapolis. A search of the apartment revealed that a sawed-off shotgun and a .38 pistol were hidden in a stereo speaker. A member of the Indianapolis Police Department Crime Lab testified that the .38 pistol was used to kill Chambers. This witness, during the penalty phase of the trial, also testified that the pull of the pistol's trigger made it a little harder to shoot than an average weapon. The gun had no observable mechanical defect and did not exhibit any propensity for accidental discharge.

A pathologist, Dr. Robert Ransburg, testified that the body had a gunshot entrance wound in the right temple. Dr. Ransburg stated that the wound was a "contact wound." By this he meant that the muzzle of the gun would have had to have been held against the temple to create such a wound. Other forensic specialists testified that the victim's blood type and the bloodstain on the recovered .38 pistol were both type A.

One of the chief witnesses for the prosecution was William Allen Kirby. Kirby had shared a cell with defendant Burris in the Marion County Jail where the defendant admitted his involvement and culpability in the murder. Kirby agreed to testify against the defendant and recounted the defendant's story as follows:

The defendant and his friends were in need of money. They entered a dance contest but failed to win anything. They took a cab to the "M & L Club" (Kirby said he was not sure "M & J Social Club" was what the defendant said but he knew the name was alphabetical) and on the way to the club, the defendant saw an envelope containing money on the front seat of the cab. Kirby asked why the men did not take the money at that time. The defendant replied they were not prepared to do so because they did not have their "roscoes" (pistols).

Inside the "M & J Social Club" the defendant said to his friends that he was ready to get some "paper" (money). Defendant Burris told his accomplices that he would kill during the robbery if that would keep him out of prison. Burris went up to his apartment, picked up a pistol, and had Thelma Williams call for a cab.

After the cab arrived, the defendant and the other two men told the driver to proceed to 21st and Alvord. After proceeding only a couple of blocks on 21st, the three men drew their pistols, forced the driver to call in that his run was completed, and ordered the driver into the back seat. The cab was driven to an alley off 34th Street where the cab driver's clothes were thrown out.

Then, in an alley between Guilford and Fall Creek Parkway, the driver was forced out of the cab. The driver pleaded for his life, saying, "Man, take the money, take the cab, leave me alone, I'm not going to bust you, you know, I'm a street fellow, too." This plea for mercy had no effect on the defendant. The victim's hands were bound and then the defendant shot Chambers in the head. The defendant told Kirby he used .38 hollow point shells because he thought they would explode on impact and thus leave nothing that could be identified through ballistics.

* * * * Thus, the cold-blooded nature of this murder, the character of the offender, and the compliance of the trial court with Ind.Code § 35-50-2-9, lead us to conclude that the death penalty was not arbitrarily or capriciously applied, and is reasonable and appropriate. This cause is remanded to the trial court for the purpose of setting a date for the death sentence to be carried out. GIVAN, C.J., and DeBRULER and HUNTER, JJ., concur. PRENTICE, J., concurs in result.


Burris v. State, 558 N.E.2d 1067 (Ind. 1990) (PCR).

Defendant was convicted of murder and sentenced to death, in the Marion Superior Court, John Tranberg, J., and defendant appealed. The Supreme Court, 465 N.E.2d 171, affirmed. Defendant then petitioned for postconviction relief. The Superior Court, Roy F. Jones, Special Judge, denied petition, and defendant appealed. The Supreme Court, Shepard, C.J., held that: (1) prosecutor did not misrepresent the law or improperly condition the jury when prosecution repeatedly told jurors that they would only recommend death sentence to judge and that judge would make final decision; (2) defendant did not receive ineffective assistance of counsel at guilt phase of trial; and (3) defense counsel's maligning statements about defendant at close of guilt phase, inconsistent use of intoxication as mitigator, and failure to develop and present mitigating evidence, fell below standard of reasonable performance under prevailing professional norms, thus warranting reversal of death sentence on grounds of ineffective assistance of counsel. Affirmed in part; reversed and remanded in part. Givan, J., dissented in opinion in which Pivarnik, J., joined.

We reverse the post-conviction court's finding that Burris was not denied the effective assistance of trial counsel at the penalty phase of his trial. We vacate the death penalty and remand for a new sentencing hearing. The post-conviction court is otherwise affirmed. DeBRULER and DICKSON, JJ., concur. GIVAN, J., dissents with opinion in which PIVARNIK, J., joins.


Burris v. State, 642 N.E.2d 961 (Ind. 1994) (Direct Appeal).

After conviction for felony murder and death sentence were affirmed on appeal, 465 N.E.2d 171, petition was filed for postconviction relief. The Marion Superior Court, Roy F. Jones, Special Judge, denied relief. Appeal was taken. The Supreme Court, Shepard, C.J., 558 N.E.2d 1067, affirmed in part, and reversed and remanded in part. After death sentence was again imposed at new penalty phase proceeding, appeal was taken. The Supreme Court, Givan, J., held that: (1) trial court could impanel new jury without any effort to determine if original jury could be reassembled; (2) photographs of victim did not cause undue prejudice and were admissible to explain police officer's testimony; and (3) defendant was properly sentenced to death. Affirmed. Sullivan, J., concurred in result and filed a separate opinion.

GIVAN, Justice. Appellant was convicted of Felony Murder in January of 1981. At that time, the jury recommended the death penalty and the trial court followed the jury recommendation. This Court affirmed the trial court on direct appeal. Burris v. State (1984), Ind., 465 N.E.2d 171, cert. denied, (1985), 469 U.S. 1132, 105 S.Ct. 816, 83 L.Ed.2d 809. Subsequently, appellant filed a petition for post-conviction relief in the trial court. That petition was denied; however, on appeal, this Court reversed in part, holding that defense counsel did not adequately represent appellant during the sentencing presentation to the jury. This Court ordered the case remanded for a new sentencing hearing before a jury. Eleven years had expired since the original sentencing jury decision and the trial court assembled a new jury to hear evidence and make a recommendation to the trial court as to the sentencing.

After hearing the evidence and deliberating, the jury informed the trial court that they were hopelessly deadlocked. The trial court then discharged the jury and proceeded to enter judgment ordering the death penalty.

In January of 1980, appellant and his companions, James Thompson and Emmett Merriweather, with appellant being the leader, decided that they would call a cab, then they would rob the driver, and no matter who the driver was they would kill him.

North Side Cab Company of Indianapolis dispatched their driver, Kenneth Chambers, in response to the call. After directing the driver where to go, the three men announced a robbery. They directed the driver to stop near an alley, required him to remove all of his clothing, took him into the alley, made him lie face down on the ground, and tied his hands behind him. Appellant then placed the muzzle of his pistol against the victim's temple and shot him. Several hours later the victim's body was discovered lying in a frozen pool of his own blood.


95 F.3d 465

Gary Burris, Petitioner-Appellant,
Al C. Parke, Superintendent, Indiana State Prison, and Pamela Carter,
Attorney General of the State of Indiana, Respondents-Appellees.

No. 95-3725

Federal Circuits, 7th Cir.

September 12, 1996


POSNER, Chief Judge.

This death-penalty case, twice reargued before the full court, has a tortured history. In 1981 Gary Burris, convicted in an Indiana state court of a murder committed in 1980, was sentenced to death. The judgment was affirmed by the state's highest court, Burris v. State, 465 N.E.2d 171 (Ind.1984), and Burris then sought postconviction relief in the Indiana courts. On appeal from the denial of relief by the trial court, the state's supreme court upheld the conviction but vacated the death sentence. Burris v. State, 558 N.E.2d 1067 (Ind.1990).

A new sentencing hearing was held, and Burris was again sentenced to death. That was in November of 1991. In December of the following year, while Burris's appeal from his second death sentence was pending before the state supreme court, he filed a petition for habeas corpus in federal district court, challenging only his conviction. The district court denied relief. Burris v. Farley, 845 F.Supp. 636 (N.D.Ind.1994). Eight months later the state supreme court affirmed the new death sentence, Burris v. State, 642 N.E.2d 961 (Ind.1994), and some months after that a panel of this court affirmed the district court's denial of habeas corpus. Burris v. Farley, 51 F.3d 655 (7th Cir.1995). Burris's execution was scheduled for November 29, 1995.

Two weeks before his scheduled execution, Burris filed another petition for habeas corpus in the district court. In it he alleged a variety of constitutional deficiencies in the second death sentence. The district court dismissed the petition on the ground that it was an abuse of the writ. Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides that a second or subsequent petition for habeas corpus may be dismissed without reaching the merits, even if it raises "new and different grounds," if "the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ." See also 28 U.S.C. 2244(b) (as it existed until April 24 of this year). The panel of this court assigned to Burris's appeal (all appeals in the same capital case go to the panel that heard the first one) affirmed the dismissal of his petition, with one judge dissenting. Burris v. Parke, 72 F.3d 47 (7th Cir.1995) (per curiam) (Cudahy, J., dissenting).

However, shortly before Burris was due to be executed, the court granted a stay of execution and decided to hear the case en banc. The case was heard on December 19, 1995, but before the decision was rendered the President, on April 24 of this year, signed into law the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, which contains provisions curtailing the scope and availability of federal habeas corpus for prisoners generally and condemned prisoners particularly. We ordered that the case be reheard again, to consider the bearing of the new Act on Burris's petition.

The Act amends the habeas corpus statute to provide that a second (or third, etc.) petition must be dismissed unless it presents a claim that either "relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable," or that is based on facts that could not have been discovered earlier "through the exercise of due diligence" and if proved would "establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the [petitioner] guilty of the underlying offense." Pub.L. No. 104-132, § 106(b)(2), 110 Stat. at 1220-21 (to be codified at 28 U.S.C. 2244(b)(2)).

Burris does not claim that his second petition satisfies either criterion, but he argues that it is actually a first petition--the first petition attacking his second death sentence as distinct from his conviction, which he attacked separately. If this is right, the new statute permits a state criminal defendant to split his federal collateral attack in two, filing first a petition attacking his conviction (once the state's highest court has upheld it) and then, if the conviction is upheld but the sentence vacated and the case remanded for resentencing, a petition attacking the sentence imposed on remand. We are sure that this is wrong, and not only because guilt and sentencing are successive phases of the same case, rather than different cases. Guilt issues and sentencing issues often overlap, especially in capital cases because of the open-ended character of capital sentencing hearings; so the bifurcated procedure advocated by Burris would increase the burden on the federal courts, contrary to the thrust of the new statute. The procedure he advocates might actually disserve defendants, since the federal court would be deciding the challenge to the defendant's conviction without knowing how severe his sentence would be.

We reject the suggestion that the new one-year statute of limitations in capital habeas corpus cases (see section 101 of the new law, 110 Stat. at 1217, adding 28 U.S.C. 2244(d)(1)) requires the bifurcated procedure. With immaterial qualifications the year runs from "the date on which the judgment became final by the conclusion of direct review," and we take "judgment" to refer to the sentence rather than to the conviction. That is the federal rule, Fed.R.Crim.P. 32(d)(1), and we think "judgment" in the new statute should bear its federal meaning even though the referent includes state as well as federal judgments. The application of the new statute will be made easier by giving the term a uniform meaning. The federal meaning of "judgment" is the standard one and has the advantage of ruling out a procedure--the bifurcated procedure for which Burris argues--that would disserve the statutory objectives.

There is no danger that someone in Burris's position would be prevented from obtaining federal habeas corpus by an unjustified delay in sentencing. If, as in Phillips v. Vasquez, 56 F.3d 1030 (9th Cir.1995), the state without fault on the part of the prisoner simply will not issue a final judgment (in that case ten years had elapsed since the prisoner's conviction had been affirmed but his sentence vacated, and he had not yet been resentenced), the prisoner can seek habeas corpus without fear of being unable to challenge the sentence should it ever be imposed.

The panel in Burris's first appeal so implied, see 51 F.3d at 658 (cited with approval in Phillips, 56 F.3d at 1034 n. 3), and we now make the implication explicit. The state would be estopped in such a case to plead the prohibition against the filing of a second or successive petition that does not comply with the strict requirements of the new statute. And the petitioner could protect himself against the risk that the state courts' delay might be found to be justified by explaining in his first petition for federal habeas corpus why he had decided not to wait until he was resentenced and asking the district court to allow him to withdraw the petition if the court determined that the state was not delaying unduly.

That is not our case. Burris did not attempt to justify the filing of a premature petition on the basis of unjustified delay by the state. When he filed the petition, attacking only the conviction, he had already been resentenced and he had no reason to think that the state supreme court would delay unconscionably in deciding his appeal from the second sentence. Nor did it.

So Burris's second petition was indeed a second or successive petition within the meaning of the new (and, we add, the old) law, and as we said it does not satisfy the criteria of the new law for being allowed to file such a petition. But is the new law applicable to proceedings commenced before, or arising out of events occurring before, its enactment? The general answer to this question is found in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), argued the same day as this case and decided today as well; the answer in the particular circumstances of this case is "no."

Because the Antiterrorism and Effective Death Penalty Act does not indicate when the amendment concerning second and subsequent petitions for habeas corpus takes effect--except in states, which Indiana concedes it is not, that have satisfied certain conditions for the processing of capital cases within the state court system, Pub.L. No. 104-132, §§ 107(a), (c), 110 Stat. at 1221, 1226--it takes effect on the date of enactment unless the effect in a case or class of cases would be retroactive in the sense of "attach[ing] new legal consequences to events completed before its enactment." Landgraf v. USI Film Products, 511 U.S. 244, ----, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 229 (1994).

That is an exact description of what would happen if the new section 2244(b)(2) were applied to Burris's second petition. The completed event to which the new statute attaches new legal consequences is the filing of his first petition, which was limited to issues arising at the guilt phase of the criminal proceeding. We assume that Burris's decision to split in two his attack on the judgment in the state criminal proceedings was not an abuse of the writ. (If it was an abuse, the issue addressed next, the second petition was barred under the old law and there would be no need to consider the applicability of the new one.) If it was not, then the new law, if applied retroactively, would indeed attach a new legal consequence to that completed event, the filing of the first petition: the consequence would be that he could not file a second petition. Had Burris foreseen the new law he would in all likelihood have waited, as most prisoners do, until his second sentence was affirmed and then filed a single petition for habeas corpus consolidating his attacks on both the conviction and the sentence. He made a deliberate choice to file two petitions, having no way of knowing (unless gifted with prevision) that the second petition would be subject to a far more stringent test than the test in the existing law, the test of abuse.

Application of the new law to his case would thus, as in Reyes-Hernandez v. INS, 89 F.3d 490 (7th Cir.1996), involving a different procedural provision of the Antiterrorism and Effective Death Penalty Act, have the effect of mousetrapping Burris. It would cause him to forfeit a legal remedy on which his life may, literally, depend. The principle is not limited to capital cases, as Reyes-Hernandez shows. Landgraf was not a capital case; was not even a criminal case. The "mousetrapping" principle that guides our decision on the applicability of the new section 2244(b)(2) to this case would be equally well illustrated by a breach of contract case in which a new law required plaintiffs to plead their claims with particularity, and the defendant moved to dismiss on the ground that the plaintiff, who had filed his complaint years before the new law was enacted, had failed to comply with it. Landgraf v. USI Film Products, supra, 511 U.S. at ---- n. 29, 114 S.Ct. at 1502 n. 29.

The fact that Burris filed the second petition before the new law went into effect is of no moment. Nor the fact that he filed the first petition before the new law went into effect. The only thing that is important is that, given the character of the first petition--a deliberate "jumping of the gun"--the new law would, if applied to Burris's second petition, attach a new, unforeseeable, and adverse legal consequence to the first petition. The case is unlike Felker v. Turpin, --- U.S. ----, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), where the first petition was filed before the new law but the new law was applied to the second petition. There was no "mousetrapping" there. That, rather than the fact that Felker, unlike Burris, filed his second petition after the law was passed, is why it was proper to apply the new law to Felker's second petition.

So the old law applies to Burris, and the question is whether the filing of the second petition was an abuse of the writ of habeas corpus within the meaning of Rule 9(b). The arguments discussed earlier in this opinion against the bifurcated procedure provide materials for answering the question "yes." Against this it can be pointed out that in the particular circumstances of this case Burris did not delay the ultimate disposition of his case, or unduly complicate this court's task of decision, by the procedure that he followed--at least if he is exonerated from any blame for the fact that the propriety of the procedure has stirred up a hornet's nest of difficult issues.

Cutting back the other way is the desirability of having clear rules governing the permissibility of successive petitions rather than treating the concept of "abuse of the writ" as a broad, equitable standard to be applied anew in every case. The Supreme Court sought to clarify the concept in McCleskey v. Zant, 499 U.S. 467, 489-96, 111 S.Ct. 1454, 1467-71, 113 L.Ed.2d 517 (1991), holding that the petitioner must demonstrate "cause and prejudice" for filing the second petition.

The application of this standard to the unusual situation of Burris is not altogether free from doubt. We do not think it necessary to explore these issues, or profitable to do so. The doctrine of abuse of the writ is defunct. The term derives from section 2244(b), now wholly superseded by the new law, which nowhere uses the term. There is no longer any statutory handle for the doctrine, and in any event its role seems wholly preempted by the detailed provisions of the new statute concerning successive petitions. Although the doctrine remains applicable to Burris's case, we shall not have to decide whether he committed an abuse of the writ; for assuming that he did, the state waived the defense when Burris filed his first petition.

Remember that when he did so he had already been sentenced to death the second time and had appealed, but his appeal had not been decided. Thus, he had not exhausted in the state courts of Indiana his claims of constitutional error at the sentencing; those claims were pending in the state supreme court. Burris had filed the petition for habeas corpus, limited to the conviction, pro se. A lawyer was appointed to represent him. The lawyer filed an amended petition that like Burris's pro se petition was limited to the conviction.

The lawyer then appeared before the district judge for a hearing on the petition, and stated at the outset that the petition was limited to the issues presented by the guilt phase of the criminal proceeding. No one responded to this statement. The state, far from suggesting that the petition was premature or that its filing would preclude Burris from challenging his new death sentence in a second petition, told the judge that "all the issues raised here [that is, in Burris's petition] have been exhausted ...; therefore, this court is free to go ahead and address the issues.... [T]here's no question that this court can move forward on this petition and deny it right away."

The district judge made no reference to the possible implications of proceeding in the way suggested by the state's lawyer. In all 43 pages of the transcript of the hearing on the petition there is no hint that Burris's mode of proceeding might have precluded his filing a second petition limited to the sentence. These silences are deafening. Of course it is possible that Burris's lawyer, a professor of criminal law, knew the risk and had told Burris of it, though it is surprising that so important a feature of the proceeding should nowhere have surfaced at the hearing. But we are limited to the record, which contains no suggestion that Burris (or for that matter his lawyer) knew that the state might interpose a defense of abuse of the writ to the predictable second petition, challenging the sentence.

We are mindful that abuse of the writ is an affirmative defense and that, technically speaking, the pleading of the defense is premature until a second petition is filed; for it is a defense to the second petition, not to the first. But we must be realistic about the circumstances in which the state declined to mention the possibility of such a defense. For page after page of transcript the district judge and the lawyers discussed the ripeness (exhaustion of state remedies) and merits of the petition. The judge was an active participant, displaying his extensive knowledge of habeas corpus jurisprudence.

The state urged him to decide the petition on the merits then and there. Everyone knew that Burris had been resentenced to death and that his appeal was pending. Yet no one saw fit to warn Burris of the possible consequences. No one suggested that maybe the district judge should stay action on the petition until, state remedies exhausted, Burris could add a challenge to his new sentence. Silence can mislead, and when it does it is treated as speech. We think that in the circumstances the state's silence concerning the implications of an immediate decision on the petition was tantamount to a statement that for the sake of a prompt decision on the merits of Burris's challenge to his conviction the state would forgo the defense of abuse of the writ should he file a subsequent petition limited to the sentence.

At the latest argument of the appeal, the state's lawyer told us that another lawyer in his office had told Burris's lawyer over the phone that the state would raise the defense of abuse of the writ if Burris filed a second petition. There is no reference to this phone conversation in the record of the habeas corpus proceeding. In earlier filings as well the state referred to Burris's having "knowingly" assumed the risk of not being allowed to file a petition challenging his sentence, as having taken a "calculated risk," and so forth, but it has never offered any substantiation for these characterizations. So far as the record shows--and we are not willing to go outside it--no one at the hearing on the first petition for habeas corpus said anything to offset the lulling effect of the state's reference to exhaustion. The objection to the bifurcated procedure was waived.

To summarize, the new law does not apply to Burris's case. The old law applies, but the state forfeited any defense based on that law. Burris is entitled to have his second petition for habeas corpus considered by the district court on the merits. The judgment dismissing the petition is therefore vacated and the case remanded to that court for further proceedings consistent with this opinion.



MANION, Circuit Judge, with whom KANNE, Circuit Judge, joins, concurring.

An experienced professor of criminal law, appointed by the district court to represent Burris on his habeas corpus petition (we can assume in great part because of his knowledge of habeas law) amended Burris' first petition to limit it to the issues presented by the guilt phase of the criminal proceeding. He explicitly confirmed this limitation at a hearing on the petition as well. Important to this court's opinion, nobody expressly questioned this approach. The state did not refer to the petition's prematurity at the hearing, the district court "made no reference to the possible implications of proceeding" (ante at p. 470), and the state agreed that Burris' first petition could be addressed.

The court uses this silence to shift the burden to the state to raise the affirmative defense of abuse of the writ to claims that may be raised in a subsequent writ petition. A "realistic" view of the hearing's circumstances leads the court to criticize the failure to warn Burris of the consequences of proceeding on a "split" petition. Ante at p. 469. This silence affirmatively "misled" Burris: "silence = speech." Burris and his learned counsel were "lulled" into believing the state would not charge abuse of the writ if he filed a second petition, so the abuse defense was waived.

I join this opinion with the understanding that the holding is confined to the very unusual circumstances of this case. The court's opinion must not be read to require the state to raise all possible affirmative defenses to a second habeas petition in its answer to a first habeas petition, or at least to indicate that such affirmative defenses will be raised should the prisoner petition again. Otherwise, failure to do so would mean that in a subsequent petition the state had waived each affirmative defense not anticipatorily pleaded and expressly flagged for the prisoner.

The state's attorney should not be obliged to teach the petitioner in the answer of any omission and its potential consequences to a second writ petition, or else later forego an abuse of the writ defense. Pursuant to Rule 9(b) governing § 2254 cases, we routinely dismiss second petitions raising issues that should have been addressed, despite the state's failure to warn of a potential ground for the petition. And Rule 5 governing § 2254 cases says nothing about the need for an answer to contain polite reminders to defense counsel about future abuse of the writ defenses. As the court recognizes, by definition, the pleading of any affirmative defense would be premature until a second petition is filed. Ante at p. 470.

Also this opinion does not propose that the state and the district court must warn the petitioner at a hearing on a first petition that a second habeas petition might abuse the writ. Neither the rules governing these petitions nor the caselaw contain any such mandate. Litigants are assumed to be familiar with the law before they seek relief. It is not the court's job--much less that of opposing counsel--to anticipate traps for litigants and make them aware of potential difficulties. Cf. Lorenzen v. Employees Retirement Plan of the Sperry and Hutchinson Co., Inc., 896 F.2d 228, 237 (7th Cir.1990) (Fairchild, J., concurring) (recognizing counsel held responsible for awareness of rules). Our system presumes the competence of attorneys unless there is a strong indication otherwise. See, e.g., Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) ("a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance").1

Finally, this opinion is not a serious departure from the current law on waiver. "Federal habeas corpus has its own procedural rules, but the practice in regard to waiver by the respondent (the custodian of the prisoner) is similar to that in ordinary civil cases." Smith v. Richert, 35 F.3d 300, 305 (7th Cir.1994). Waiver is the voluntary intentional relinquishment of a known right. United States v. Ross, 77 F.3d 1525, 1541-42 (7th Cir.1996) (quoting United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 1777, 123 L.Ed.2d 508 (1993)). "[W]aiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986). Under any other circumstance, the state's failure to warn a litigant with this caliber of legal representation cannot constitute a "waiver" by the state under these definitions.

Given these caveats, I view the rule of this case as confined to its precise and extraordinary circumstances. While a prisoner appealed from a new death sentence, he petitioned for habeas corpus. He thereby intentionally bifurcated his challenges. First he argued those issues potentially affecting the judgment of conviction; later he claimed he was denied effective assistance of counsel at sentencing. The first petition was considered at a hearing where ripeness was discussed at great length yet the petitioner was not told by counsel or the court of the consequences of split proceedings, and the state prodded the court to proceed. The climate of the hearing--arguably engendered by the state's actions--was one in which the sole issues considered were challenges to Burris' conviction, not his sentence. Yet when he filed his habeas challenge to the death sentence, the state raised, perhaps disingenuously, the charge of abuse of the writ. With this narrow holding, I concur.

But the court's opinion cannot be read to apply beyond these unique facts. A legal fiction such as "silence = speech" cannot prevail in most adversarial proceedings. The court must not shift the burden to the state to assert an affirmative defense to a claim not yet filed and to educate a prisoner and his counsel on the law at a hearing, notwithstanding that the prisoner deliberately "split" his habeas challenges and was represented by a criminal law professor (who, the court must presume, did not know the law and did not inform his client about the consequences). I view this case not as a new rule of law but as a prudential decision not to invoke abuse of the writ given these unique circumstances. See Advisory Committee Note to Rule 9(b) Governing § 2254 Cases ("The bar set up by subdivision (b) is not one of rigid application, but rather is within the discretion of the courts on a case-by-case basis."); Gunn v. Newsome, 881 F.2d 949, 957 (11th Cir.) (whether second or subsequent habeas petition constitutes abuse of the writ is left to sound discretion of district court), cert. denied, 493 U.S. 993 , 110 S.Ct. 542, 107 L.Ed.2d 540 (1989).


1 Some observers might applaud rather than criticize Burris' first counsel, the criminal law professor who bifurcated the writ. Burris received a full review of his challenge to the conviction. He received a stay of execution pending an en banc hearing on whether his petition challenging the death sentence was an abuse of the writ. While that decision was pending he received an en banc determination of whether the Antiterrorism and Effective Death Penalty Act of 1996 applied to his second petition. With today's decision, he returns to district court for a determination on the merits of his second petition. Depending on the outcome, he has the opportunity to appeal again. Delay is the name of the game in death penalty cases. Had the professor done it right the first time, this process would have been over months ago. Perhaps the professor was more astute than the court gives him credit for


In the United States Court of Appeals
For the Seventh Circuit

No. 97-1218

GARY BURRIS, Petitioner-Appellant,
AL C. PARKE, Respondent-Appellee.

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:95-CV-0917 AS--Allen Sharp, Judge.

ARGUED MAY 29, 1997--DECIDED JUND 19, 1997

Before CUDAHY, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge. Six appellate opinions-- three by this court and three by the Supreme Court of Indiana--lay out the history of this capital case. Burris v. Parke, 95 F.3d 465 (7th Cir. 1996) (en banc); Burris v. Parke, 72 F.3d 47 (7th Cir. 1995); Burris v. Farley, 51 F.3d 655 (7th Cir. 1995); Burris v. State, 642 N.E.2d 961 (Ind. 1994); Burris v. State, 558 N.E.2d 1067 (Ind. 1990); Burris v. State, 465 N.E.2d 171 (Ind. 1984). Brief- ly told, the tale so far is this. Burris was convicted of murder and sentenced to death. On direct appeal the Supreme Court of Indiana affirmed. Burris filed a collateral attack in Indiana. That state's highest court eventually concluded that Burris's lawyer had not represented him well enough at sentencing and ordered a new punishment trial, although the court adhered to its conclusion that the adjudication of guilt was sound. Counsel at the second sentencing persuaded at least one juror not to support capital punishment--but in Indiana a sentencing jury is advisory, see Schiro v. Farley, 510 U.S. 222 (1994), so the judge dismissed the jurors and conducted an additional hearing, after which she sentenced Burris to death.

While pursuing appellate remedies within Indiana, Bur- ris filed a petition under 28 U.S.C. sec. 2254 limited to the determination of guilt. The district court denied this peti- tion, and we affirmed. Meanwhile, the Supreme Court of Indiana affirmed the second death sentence and Burris filed a new collateral attack in state court, arguing that he had received ineffective assistance of counsel in the second penalty phase. Although this was the initial collateral challenge to the second sentence, it was a "successive" petition under state practice given his collateral attack on the determination of guilt and the first death sentence.

Indiana requires prisoners to obtain the approval of the Supreme Court for successive petitions, see Rule 1 sec. 12 of the Indiana Rules for Post-Conviction Remedies, so the state's trial judge declined to consider the peti- tion. Burris applied to the Supreme Court of Indiana for leave to prosecute this collateral attack. After a series of skirmishes, the court entered a unanimous order that, apart from formal matters, reads in full:

Burris now claims his counsel was ineffective in con- nection with his sentencing, primarily because cer- tain facts were not presented as part of his mitigation strategy. He asserts these facts should be considered in a successive post-conviction proceeding. The Court has reviewed these claims and the ma- terials submitted in support of them. Though pled as an ineffective assistance claim, Burris's contentions are essentially an assault on the adequacy of the mitigating evidence submitted on his behalf, an issue we have already examined twice. We find that these claims are either barred by the doctrine of res judi- cata or otherwise barred by the Indiana Rules of Pro- cedure for Post-Conviction Relief.

The Court determines that the "pleadings conclusively show that the petitioner is entitled to no relief." Ind. P-C.R. 1 sec. 12(b). Accordingly, the Court declines to authorize the filing of a successive petition for post-conviction relief.

Burris then began a second federal collateral attack, which the district court dismissed as an abuse of the writ. A panel of this court affirmed, observing that Burris had deliberately excluded sentencing issues from his first peti- tion. While the case was pending before the court en banc, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA), which replaced the doctrine of abuse of the writ with a more restrictive rule. See 28 U.S.C. sec. 2244(b).

After another round of briefs and oral argument, this court held that Burris's current petition is "second or sequential" within the meaning of both old and new federal doctrines even though it is his first fed- eral challenge to the second death sentence. Nonetheless, we held, first, that the new sec. 2244(b) does not apply to Burris because, when selecting issues for his first petition, he may have relied on the older standards; and, sec- ond, that the attorneys representing Indiana had forfeited any right to the benefits of those standards by acquiesc- ing in Burris's efforts to divide his arguments into multi- ple petitions.

On remand, the district court denied the petition. 948 F. Supp. 1310 (1996). It concluded that 28 U.S.C. sec. 2254(e), added by the AEDPA, applies to Burris's claims in light of Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996) (en banc), cert. granted, 117 S. Ct. 726 (1997), which holds that changes made by the AEDPA govern pending litigation unless the petitioner can show detrimental reliance on the former law, as Burris did concerning sec. 2244(b). 948 F. Supp. at 1319-22. Accord, Pitsonbarger v. Gramley, 103 F.3d 1293, 1298-99 (7th Cir. 1996). Section 2254(e)(1), which says how federal courts must treat the findings of state courts, is irrelevant because Indiana did not make findings of fact concerning Burris's current contentions. Section 2254(e)(2), which governs the holding of federal eviden- tiary hearings, is potentially more important. It reads:

If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--

(A) the claim relies on--

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(ii) a factual predicate that could not have been previously discovered through the ex- ercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evi- dence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

The district judge wrote that Burris would have received an evidentiary hearing under the law predating the AEDPA, 948 F. Supp. at 1322-23, but that sec. 2254(e)(2) precludes a hearing because Burris "failed to develop the factual basis of a claim in State court"--a phrase that the judge under- stood to refer to any shortcomings in the record, no matter who was responsible. 948 F. Supp. at 1324-27. Burris did not build a factual record in state court; as the judge saw things, that was conclusive unless Burris could satisfy the further conditions in sec. 2254(e)(2). One of these is that "the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."

We have held that identical language in sec. 2244(b)(2)(B)(ii) refers unambiguously to the offense of conviction and does not permit proceedings concerning the sentence. Hope v. United States, 108 F.3d 119 (7th Cir. 1997). It follows that Burris could not obtain a hearing under the standards of sec. 2254(e)(2). Acting on the basis of Burris's allegations, untested by an evidentiary hearing, the court concluded that he received constitutionally effective legal assistance. 948 F. Supp. at 1327-43. The court also rejected some additional contentions that have not been renewed on appeal. Id. at 1343-55.

Pitsonbarger reserves the question whether the miscarriage-of-justice language in sec. 2254(e)(2)(B), restricted as it is to innocence of "the underlying offense", applies when proceedings in state court predated the AEDPA. 103 F.3d at 1306-07. Avoidance is equally appropriate today, for two reasons. First, sec. 2254(e)(2) does not matter to this case; second, an evidentiary hearing would have been unnecessary under the former law. Section 2254(e)(2) does not matter because it applies only when "the applicant has failed to develop the factual basis of a claim in State court proceedings". "Failure" implies omission--a decision not to introduce evidence when there was an opportunity, or a decision not to seek an opportunity.

The AEDPA differs from former law, see Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992), by not asking whether that omission is a default under state practice in the sense that it would prevent the prisoner from obtaining a hearing in state court. Sec- tion 2254(e)(2) is a rule of federal law, liberated from the independent-and-adequate-state-grounds doctrine on which Keeney rests. See Lambrix v. Singletary, 117 S. Ct. 1517, 1522-23 (1997). To be attributable to a "failure" under fed- eral law the deficiency in the record must reflect some- thing the petitioner did or omitted.

Like the third circuit, see Love v. Morton, 112 F.3d 131 (3d Cir. 1997), we think that the word "fail" cannot bear a strict-liability reading, under which a federal court would disregard the reason for the shortcomings of the record. If it did, then a state could insulate its decisions from collateral attack in federal court by refusing to grant evidentiary hearings in its own courts. Nothing in sec. 2254(e) or the rest of the AEDPA im- plies that states may manipulate things in this manner. But, for the reasons that follow, we think that a federal evidentiary hearing is unnecessary even under the stan- dard of Townsend v. Sain, 372 U.S. 293 (1963), which Keeney overruled in part and which sec. 2254(e) supersedes.

Three experienced criminal lawyers represented Burris at the second penalty proceeding. They presented substantial evidence in mitigation, attempting to establish first that Burris's brutal conduct may have been attributable to a hard childhood, and second that Burris has reformed while in prison. To support the first proposition, counsel introduced evidence that Burris was abandoned as an infant, grew up in brutal surroundings, did not know his parents or even his age, and served while a pre-teen as a "gofer" in a whorehouse, falling into a criminal culture that dominated his life. To buttress the second proposition, counsel produced prison guards and caseworkers who testified that Burris is bright, a good conversationalist, and a provider of legal assistance to other prisoners. The mitigation evidence persuaded at least one juror.

Burris's current lawyers insist that this defense fell below the constitutional minimum for three reasons: first, counsel did not investigate the possibility that Burris suffers from brain damage; second, counsel did not succeed in introducing evidence that Burris blamed himself for the death (by heart attack) of the woman who was most responsible for his upbringing; third, counsel did not argue on appeal that the disagreement among the jurors is a mitigating circumstance the judge was obliged to consider. None of these arguments requires further evidentiary exploration; none calls counsel's performance into question.

Start with the first. Burris wanted the district court to appoint a neuropsychologist to investigate him and opine at a federal evidentiary hearing whether he suffers from a brain injury that contributed to his vicious con- duct. Such an appointment is possible if the expert ser- vices "are reasonably necessary for the representation of the defendant". 21 U.S.C. sec. 848(q)(9), applied by sec. 848(q)(4)(B) to capital cases in which relief is sought under sec. 2254.

To establish that a service is "reasonably necessary," the defendant must make a preliminary showing, which Burris has not done. His current lawyers suspect--more accurately, believe that his former lawyers should have suspected-- that a bullet to the head in the 1970s damaged Burris's brain. All that the record shows, however, is that Burris complains of headaches, which plague many people without brain damage. After his arrest, Burris was examined by two psychiatrists. Their 1981 report describes the gun- shot wound as "superficial" and concludes that Burris displays "no indications of mental illness or deficiency".

Before the second penalty proceeding, Burris's lawyers arranged for another mental examination; a psychologist interviewed and examined Burris in 1991 and concluded that he shows no signs of brain damage or dysfunction. Counsel meanwhile found witnesses to testify that Burris is alert, intelligent, a good conversationalist and jailhouse lawyer, and so on. None of the evidence available at the time suggested the utility of further mental exam- inations, and counsel therefore cannot be called incompe- tent under the standards of Strickland v. Washington, 466 U.S. 668 (1984).

What a neuropsychologist might turn up today is irrele- vant; so is the fact that the psychologist who examined Burris in 1991 now wants to investigate the potential ef- fects of the bullet. The performance of counsel is assessed by what was known at the time or would have been discovered through diligent pursuit of lines of inquiry reasonable at the time; this was not such a line, given the multiple mental exams ending in clean bills of mental health and the fact that lay witnesses likewise detected no mental problems. Brewer v. Aiken, 935 F.2d 850 (7th Cir. 1991), on which Burris relies, is a different kettle of fish.

Both medical and lay observers recognized that Brewer was severely impaired, but counsel did not explore the subject and put on essentially no defense. Burris's lawyers did investigate. What is more, counsel could not have developed a brain-damage theory without risk of undercutting the evidence of Burris's turnaround in prison, and without opening up the possibility that a jury would con- clude that Burris was undeterrable. As we observed in Stewart v. Gramley, 74 F.3d 132 (7th Cir. 1996), jurors may not be impressed with the idea that to know the cause of viciousness is to excuse it; they may conclude instead that, when violent behavior appears to be outside the defendant's power of control, capital punishment is appropriate to incapacitate. Counsel avoided this poten- tial pitfall; their performance was well in excess of the constitutional floor.

Next comes the contention that counsel failed to inform the jury that Burris blames himself for the death of the woman who the current lawyers refer to as "his primary caregiver"--although his upbringing does not meet the normal definition of "care". Counsel tried to adduce this information by asking the psychologist what Burris had told him about the subject. The question was met with a hearsay objection, which was sustained. What more could counsel have done? Placing Burris on the stand, the only reasonable alternative, would have opened the door to exploration of aspects of his personality and criminal history that counsel sensibly wanted to avoid.

Finally, Burris blames his former lawyers for omitting, from the brief on appeal to the Supreme Court of Indiana, an argument that the jury's inability to reach a verdict was a mitigating factor that the judge should have considered. No case law in Indiana or any other jurisdiction, then or now, supports the argument. Cases such as McCleskey v. Kemp, 481 U.S. 279, 306 (1987), which say that states "cannot limit the sentencer's consideration of any rele- vant circumstance that could cause it to decline to impose the [death] penalty", deal with circumstances about the accused and the crime, not with the legal process. Counsel filed a careful brief making recognized legal arguments, which the Supreme Court of Indiana took seriously. In contending that this is ineffective, Burris's current lawyers must have in mind a model of appellate advocacy in which counsel fill briefs with every possible theory in the hope that lightning will strike. Jones v. Barnes, 463 U.S. 745 (1983), holds that the Constitution does not require such an approach, which weakens an appellate pres- entation. No more need be said.

Burris has received abundant consideration from both state and federal courts. He has had the aid of many competent and diligent lawyers during litigation that spans almost two decades. Like the district judge, we conclude that the sentence was imposed in accord with all constitu- tional requirements.



CUDAHY, Circuit Judge, dissenting in part and concurring in part.

The narrow issue before us is not whether Burris suffer- ed ineffective assistance of counsel at the sentencing phase of his trial, but whether he is entitled to an evidentiary hearing before the federal courts make that determination. The majority says no. The key point is that, under the pre-AEDPA law that the majority correctly finds applicable, Judge Sharp said yes--a hearing is mandatory.

Judge Sharp nevertheless denied Burris a hearing, based on his conclusion that the AEDPA's 28 U.S.C. sec. 2254(e)(2) governed. The majority has decided that the latter ruling is wrong; in this I agree. Section 2254(e)(2) applies only to state prisoners who, through their own fault, did not bring a constitutional claim to the attention of the state courts. 28 U.S.C. sec. 2254(d) does not apply either, for, as Judge Sharp noted, the "decision of the Supreme Court of Indiana cannot be considered a careful and well-rea- soned opinion requiring deference under sec. 2254(d)." Burris v. Parke, 948 F. Supp. 1310, 1321 (N.D. Ind. 1996).

What then for Burris's evidentiary hearing? Judge Sharp gave the answer under law that he mistakenly believed to be foreclosed--that a federal evidentiary hearing would be mandated:

The Seventh Circuit has held that upholding the failure of a state court to provide a petitioner with a full and fair hearing would reward that state court for its denial of due process. See Bracy v. Gramley, 81 F.3d 684, 693 (7th Cir.), petition for cert. filed (Sept. 23, 1996). In this case, the court finds that the courts of the State of Indiana failed to provide Burris with a full and fair hearing on his ineffective assistance claims. Thus, under the pre-AEDPA standards of Townsend and Keeney, because the Supreme Court of Indiana dismissed Burris's PCR petition as suc- cessive without allowing for discovery, holding an evidentiary hearing or addressing the merits of Burris's ineffective assistance claims which were before the court in the first instance, it would appear that this court would be mandated to hold the requested evi- dentiary hearing.

Id. at 1323 (emphasis supplied) (footnote omitted). The Indiana courts had never adequately heard Burris's claims, and so Townsend obliged the district court to hear those claims itself. Id. 1  

Since, as the majority holds, the pre-AEDPA law ap- plies, I agree with Judge Sharp's conclusion that an evi- dentiary hearing is required. One may debate the merits of the ineffective assistance claim on the basis of the present record, but to do so is highly conjectural and an exercise in futility. As this court has often noted, the adequacy of the record is a crucial consideration in evaluating ineffective assistance claims. Cf. United States v. Draves, 103 F.3d 1328, 1335 (7th Cir. 1997); United States v. McKenzie, 99 F.3d 813, 816 & n.2 (7th Cir. 1996). Here we are talking about a brain injury from a bullet and its significance as a mitigating factor. Any efforts to analyze this apparent source of brain damage on the present record are completely speculative. I find particularly simplistic the view that, since Burris's lawyers portrayed him as bright and a good conversationalist, they would be dis- abled to explore his brain injury. The reality is that none of the advocates at oral argument could say anything specific about the brain injury, although none of them denied that he had suffered one.

Quite correctly, the majority holds that sec. 2254(e)(2) does not apply to Burris's claim because the Indiana courts never accorded him an opportunity in the state courts to introduce evidence on the point. There was no "failure" on the part of the prisoner. Since Burris was not at fault and sec. 2254(e)(2) is not applicable, the crucial question is what law applies. The majority denigrates the authority of Townsend v. Sain, 372 U.S. 293 (1963), by observing that it was "overruled in part" by Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992), and "supersede[d]" by sec. 2254(e). Maj. Op. at 6. This is the majority's most serious error. What the majority does not point out is that the part of Townsend that Keeney overruled has no application here, because Burris was not at fault. See Spreitzer v. Peters, Nos. 96-1467 & 96-1520, at n.9 (7th Cir. May 23, 1997). For the same reason, sec. 2254(e)(2), the only AEDPA provision that even arguably governs evidentiary hearings, has no bearing here--as the majority itself concludes. Hence, it is hard to see how Townsend is superseded. When the state courts have refused to hear the claim of a state prisoner, Townsend still binds us to ensure that the petitioner receives a hearing in federal court. The rea- son is the same today as it was thirty-three years ago:

State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution. Sim- ply because detention so obtained is intolerable, the opportunity for redress, which presupposes the opportunity to be heard, to argue and to present evidence, must never be totally foreclosed. It is the typical, not the rare, case in which constitutional claims turn upon the resolution of contested factual issues. Thus a narrow view of the hearing power would totally subvert Congress' specific aim in passing the Act of February 5, 1867, of affording state prisoners a forum in the federal trial courts for the determination of claims of detention in violation of the Constitution.

Townsend, 372 U.S. at 312 (emphasis added) (citation omitted).

Judge Sharp ruled that the Indiana courts have "failed to provide Burris with a full and fair hearing on his inef- fective assistance claims." 2   Burris, 948 F. Supp. at 1323. As Judge Sharp realized, Townsend therefore mandates that the district court hold an evidentiary hearing. The majority reverses this, based on unsound law and frag- mentary facts.

I respectfully dissent and would vacate the judgment and remand for a hearing.



Judge Sharp cited two separate grounds in Townsend that dictated a hearing for Burris's claims: that "(3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing," and that "(6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair hearing." Townsend, 372 U.S. 293, 313 (1963).

Burris raises several related claims. His request for the appointment of a neuropsychologist would go hand in hand with the evidentiary hearing on his brain injury. The neuropsychologist's participation in the hearing is necessary to make the hearing meaningful, and thus would meet the requirements of 21 U.S.C. sec. 848(q)(9). Further, the psychologist who examined Burris in 1991 believed at the time, incorrectly, that he was in possession of Burris's complete medical file. He was not--and among the files missing were the reports of the brain damage at issue. We thus cannot know whether Burris's attorney should reasonably have investigated the brain damage. Whether he received ineffective assistance of counsel when his attorney failed to appeal an adverse and erroneous evidentiary ruling may also be ripe for exploration at a hearing, as might the sentencing judge's erroneous conception of mitigation evidence.

Finally, in the face of affidavits from Burris's attorney disavowing any particular reason at all for failing to investigate and present to the jury evidence of Burris's alleged neurological impairment, it is inappropriate for the majority to engage in conjecture (and praise) for the attorney's "strategic" decisions.


Gary Burris



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