In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2564

Tuhran A. Lear,

Petitioner-Appellant,

v.

Roger D. Cowan, Warden,

Respondent-Appellee.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 97 C 826--J. Phil Gilbert, Chief Judge.


Argued February 17, 2000--Decided March 21, 2000
Amended, and Petition for Rehearing
and for Rehearing En Banc Denied, July 13, 2000/*



  Before Posner, Chief Judge, and Easterbrook and Evans,
Circuit Judges.

  Posner, Chief Judge. Lear was sentenced to death
by an Illinois state court, and after exhausting
state remedies, see People v. Lear, 572 N.E.2d
876 (Ill. 1991), 677 N.E.2d 895 (Ill. 1997),
appeals to us from the denial of his petition for
federal habeas corpus. The district court
analyzed the issues fully and competently, and we
have very little to add.

  Lear and a companion, Randy Thomas (who was
tried separately presumably because they had
antagonistic defenses, see, e.g., Hernandez v.
Cowan, 200 F.3d 995, 999 (7th Cir. 2000), was
convicted of felony murder, and was sentenced to
prison for 60 years), entered the shop at a
gasoline station in rural Illinois. Two employees
were on the premises, Bob Bishop and Gregory
McAnarney. According to Bishop’s testimony, Lear
walked past him toward the restroom while Thomas
engaged him in conversation. While they were
talking, Bishop was shot in the neck from behind,
obviously by Lear if Bishop was face to face with
Thomas. Bishop fell to the floor and feigned
death, and while lying there heard another shot--
the shot that killed McAnarney--and felt someone
remove his (Bishop’s) wallet from his pocket.
Shortly afterward, with Bishop and McAnarney
lying where they had fallen, a customer entered
the store, but when she saw what had happened she
quickly began to leave. Lear told her to stay,
displaying a gun in his waistband. But she
sensibly retreated, and though followed by Lear
managed to get back to her car. Her boyfriend,
who was in the driver’s seat waiting for her to
return, drove away, followed by Lear in a van; he
was shortly arrested by the state police, the
boyfriend having called the police on his CB
radio. The arresting officer searched the van and
found shell casings and the gun that had been
used to shoot McAnarney and Bishop, and in Lear’s
pocket found McAnarney’s wallet. The officer also
saw blood on Lear’s shoe. The prosecution
speculated that the blood was McAnarney’s (though
it was never tested) and had gotten on Lear’s
shoe when Lear, having shot McAnarney, removed
his wallet. However, only Thomas’s fingerprints
were found on the gun.

  Lear’s principal argument is that his Sixth
Amendment right to present a defense (e.g.,
United States v. Scheffer, 523 U.S. 303, 308
(1998); Smith v. Kolb, 950 F.2d 437, 440 (7th
Cir. 1991)) was violated by the trial court’s
refusal to allow him to call as a witness a
reporter who had discussed the murder and robbery
with Bishop shortly after the event and who in an
article that she had written about it (but that
we can’t find) for a local newspaper had reported
Bishop’s telling her that the taller of the two
robbers, who would have been Thomas, had entered
the store first. Yet at the trial Bishop
testified that Lear had entered first. When
cross-examined about this discrepancy, Bishop
admitted that while he didn’t remember the exact
words he had used to the reporter, probably he
had told her that the taller robber had entered
first.

  Eliding such questions much discussed in the
briefs as whether every ruling that erroneously
excludes impeaching evidence violates the
Constitution and what the correct standard of
review of such a ruling is in a federal habeas
corpus proceeding governed by the Antiterrorism
and Effective Death Penalty Act, we think it
plain that there was no error. To impeach is to
contradict; so if a witness for one party, in
this case the state, admits the proposition that
the opposing party wants to prove, there is
nothing to impeach. United States v. Rosa, 11
F.3d 315, 336 (2d Cir. 1993); People v.
Alexander, 470 N.E.2d 1071, 1079 (Ill. App.
1984). While not recalling his exact words,
Bishop admitted having told the reporter,
contrary to his direct testimony, that the taller
robber (therefore Thomas, not Lear) had entered
the store first. The jury could thus weigh the
significance of the contradiction between what
Bishop had told the reporter and what he
testified to at the trial. The significance was
slight. Bishop was positive that it was Thomas
who had engaged him in conversation, meaning that
Lear must have shot him and, given the quick
succession of shots, McAnarney as well. It didn’t
matter who entered the store first; obviously
Thomas could have entered first yet tarried at
the front while Lear went behind Bishop.

  Even if Bishop had denied ever telling anyone
that the taller of the robbers had entered first,
Lear would have had no right to call the reporter
to contradict him. He could not have justified
calling her to cast a general doubt on Bishop’s
veracity concerning any material issue relating
to Lear’s guilt. For Lear does not contend that
Bishop may have been lying, that he pretended to
be shot, that he shot himself, that he shot
McAnarney and then himself, that he may have been
shot by someone other than Lear or Thomas, or
that anything else might have happened that would
exculpate Lear. The only contention is that
Bishop may have been mistaken about which of
those two shot him. But that mistake would have
been irrelevant to guilt, since each was guilty
of and convicted of felony murder, the murder
having been committed in the course and
furtherance of the robbery. 720 ILCS 5/9-1(a)(3);
People v. Smith, 701 N.E.2d 1097, 1100 (Ill.
1998). Impeachment evidence that lacks even
oblique relevance to the question of the
defendant’s guilt is irrelevant and therefore
inadmissible--at least on the subject of guilt.
For evidence irrelevant at the guilt phase of a
trial may be relevant at the sentencing phase--
especially in a case in which a capital defendant
is convicted of felony murder, because the
Supreme Court has held that a felony murderer can
be executed only if he killed or intended to kill
the murder victim. Hopkins v. Reeves, 524 U.S.
88, 99-100 (1998); Loving v. United States, 517
U.S. 748, 755-56 (1996); Enmund v. Florida, 458
U.S. 782, 801 (1982). Lear might therefore have
had an argument for calling the reporter as a
witness at the sentencing hearing. But this
argument is thoroughly waived, having been raised
for the first time at oral argument--and by one
of the judges.

  Lear also argues that his trial lawyer rendered
ineffective assistance to him by failing to take
advantage of Turner v. Murray, 476 U.S. 28, 36-37
(1986), which holds that "a capital defendant
accused of an interracial crime is entitled to
have prospective jurors informed of the race of
the victim and questioned on the issue of racial
bias." (McAnarney was white, as is Bishop; Lear
is black, as is Thomas.) We must ask whether this
omission brought the lawyer’s representation of
Lear below minimum professional standards, and if
so whether it is likely that the jury would not
have imposed the death penalty. The Supreme Court
made clear in Turner that the lawyer’s failure to
have the jurors informed of the victim’s race and
questioned about their feelings about interracial
crime is not unprofessional, subpar
representation per se. Id. at 37. Indeed, all the
Court really held was that if the defense wants
to quiz jurors on their reaction to the
interracial character of the defendant’s crime,
the judge must permit this. Obviously there are
tactical reasons why a lawyer would not want to
direct the jurors’ attention to the interracial
character of the crime, and the Court recognized
this. Id. Lear’s lawyer testified that he thought
he had dealt with the issue adequately by asking
general questions about bias without focusing on
race. Asking general questions about bias may
have been a better method of eliciting reactions
to the interracial character of the crime than
playing up the interracial issue, especially
since there is no suggestion that the crime had a
racial motive. We are given no reason to doubt
that the lawyer made the best tactical choice
available to him in the tough circumstances that
confronted him: a brutal murder and no real
defense. We grant that if Lear had asked his
lawyer to raise the racial issue, and if the
lawyer had refused without explanation, this
would strengthen Lear’s claim of ineffective
assistance of counsel; but that did not happen
either. There is, in short, no reason to think
counsel was ineffective. In any event no harm has
been shown; it is exceedingly unlikely that
directing the venire’s attention to the
interracial character of Lear’s conduct would
either have disposed the jury that was selected
to lenity or have altered the composition of the
jury in a direction favorable to him.

  The only other matter that warrants discussion
is Lear’s claim to be entitled by the Eighth
Amendment to the aid of a "mitigation specialist"
who before the sentencing hearing in a capital
case would conduct a thorough investigation of
the defendant’s past in an effort to develop
evidence in mitigation of the case for capital
punishment. All other objections to making such a
claim the basis for a constitutional right
assertable in a federal habeas corpus proceeding
to one side, its denial here was harmless. See
Britz v. Cowan, 192 F.3d 1101, 1104 (7th Cir.
1999); Stewart v. Gramley, 74 F.3d 132, 135-36
(7th Cir. 1996); Bolender v. Singletary, 16 F.3d
1547, 1561 (11th Cir. 1994). The evidence in
aggravation of Lear’s offense was compelling,
consisting of his having committed two other
murders. The evidence that his current counsel
and their mitigation specialist have dug up shows
only (beyond what little was presented to the
jury at the sentencing phase of his trial) that
Lear was a good student and (contradictorily) has
a somewhat below-average IQ, that he used
cocaine, that he’s neurotic, and that he has an
"antisocial personality disorder" or a
"characterological disorder of the asocial type,"
which strikes us as fancy language for being a
murderer. It is exceedingly unlikely that this
additional evidence would have swayed any member
of the jury against sentencing Lear to death,
given those two prior murders and considering the
entirely gratuitous character of McAnarney’s
murder and of the near murder of Bishop shot in
cowardly fashion from behind while his attention
was being distracted by the accomplice.

Affirmed.



/* None of the judges on the original panel voted to
rehear the case. Judges Ripple, Rovner, Diane P.
Wood, and Williams voted to rehear the case en
banc. Judges Rovner and Williams have written
dissenting opinions; each has joined the other’s
opinion and Judge Wood has joined both opinions.
Judge Ripple has not joined either opinion.




  ROVNER, Circuit Judge, with whom DIANE P. WOOD and
WILLIAMS, Circuit Judges, join, dissenting from the
denial of rehearing en banc. The Lear opinion
mischaracterizes Turner v. Murray, 476 U.S. 28
(1986), in several fundamental ways, transforming
the prophylactic inquiry it prescribes from an
essential tool for ensuring the impartiality of a
jury into a discretionary inquiry that may do
more harm than good and presumptively would not
alter the outcome anyway. Because that
interpretation is inconsistent with the plain
language of Turner and the reality of juries
today, I dissent from the denial of rehearing en
banc.

  According to the Lear panel, Turner merely held
that a defendant has the option of quizzing the
jurors on their reaction to the interracial
nature of the crime. If the defense counsel fails
to question jurors about the interracial nature
of the crimes but asks general questions about
bias, we may excuse it as a tactical decision and
find no deficient performance. Moreover, even if
we decide an attorney did perform deficiently in
failing to ask those questions, we need not find
ineffective assistance because we will presume
that there was no prejudice given that "it is
exceedingly unlikely that directing the venire’s
attention to the interracial character of Lear’s
conduct would either have disposed the jury that
was selected to lenity or have altered the
composition of the jury in a direction favorable
to him." Ante at 6. In other words, the Lear
panel sees little utility in the Turner inquiry,
and thus no harm if it is forfeited. The Supreme
Court, however, thought otherwise, as even a
cursory glance at Turner reveals. Lear renders
Turner a nullity.

  Turner held that "a capital defendant accused of
an interracial crime is entitled to have
prospective jurors informed of the race of the
victim and questioned on the issue of racial
bias." 476 U.S. at 36-37. The right is no mere
formality; it exists because there is an
"unacceptable risk of racial prejudice infecting
capital sentencing" in cases of interracial
crime, that may be easily avoided through proper
questioning of prospective jurors. Id. at 36; see
also id. at 40-41. In a footnote which is the
focus of the Lear panel, the Turner majority
addressed Justice Powell’s concern in dissent
that such questioning might have the negative
effect of suggesting to jurors that race is
somehow relevant. Id. at 37 n.10. In response to
that concern, the Court declared that it would
leave it up to a capital defendant’s counsel
whether such a concern is "purely chimerical" or
not, and that a court was not required to ask
such questions sua sponte should a defense
counsel decline to do so. Id. That acknowledgment
that some defense counsel at some point in time
might deem the danger of raising the issue real
rather than fantastical is hardly an endorsement
that the inquiry may be forfeited without
consequence. The entire focus of the Turner
opinion is that racial biases may affect the
determination of a sentence by a capital jury in
an interracial crime. Unfortunately, the problem
of racism in our society remains prevalent today.
Turner’s recognition that the danger of racism
infecting the capital sentencing decision is
greater in the case of interracial crimes than in
crimes in which the victims are the same race is
as well-grounded in reality today as it was in
1986.

  The Lear panel, however, takes that one
reference to the ability of defense counsel to
decline such questioning as an invitation for us
to supply possible tactical reasons why a
particular defense counsel in fact failed to do
so. The only basis given for the panel’s
conclusion that the omission was tactical is the
defense counsel’s statement that he had explored
the issue of racial prejudice with a general bias
question. In his post-conviction affidavit,
Lear’s defense counsel addressed this issue,
stating that he "asked the [potential] jurors
whether there was anything about Mr. Lear that
would cause them to be biased or prejudiced and
my purpose in asking that question was to address
the issue of racial prejudice, as Mr. Lear was
black." Even assuming--as Lear’s defense counsel
believed--that this would cause jurors to
"volunteer" racial prejudices (a rather generous
assumption), it does nothing to ferret out
prejudices related to the interracial nature of
the crime. And that is what Turner addresses. In
fact, the court in Turner had also asked general
questions designed to uncover bias, and that was
not enough. Id. at 49 (Powell, J. dissenting).
Turner does not address prejudices based only on
the race of the defendant. It instead recognizes
the unacceptable risk of racial prejudice
infecting the capital sentencing proceeding where
the crimes involved interracial violence. For
that reason, it holds that the defendant is
entitled to inform potential jurors of the race
of the victim. In the same affidavit, Lear’s
defense counsel attested that he "had no reason
for not asking a question of the venire on voir
dire whether the race of the victim would be a
factor in causing them to be biased or prejudiced
against Mr. Lear." On the critical Turner issue,
that addressing the interracial nature of the
crime, the lawyer has provided no tactical
explanation. Lear’s defense counsel has never
even acknowledged an awareness of the right to a
Turner inquiry. Absent knowledge that the right
exists, it is impossible to consider the waiver
of that right a "tactical" decision. Thus, the
Lear panel mischaracterizes Turner by essentially
presuming that a decision is tactical unless the
facts indicate otherwise, rather than assuming
the inquiry is necessary absent a reasoned
decision to forego it. That turns Turner, not to
mention Strickland, on its head.

  This problem is further exacerbated by the
curious contention that the ineffective
assistance claim would be stronger if the
defendant had asked his attorney to make the
inquiry. I cannot comprehend how the
determination of deficient performance can vary
based on the defendant’s knowledge of his legal
rights and his conduct in requesting that his
attorney exercise those rights. An attorney’s
obligation to her client does not change based
upon the client’s legal savvy. That proposition
grafts onto the traditional Strickland analysis
an unprecedented preliminary inquiry into whether
the defendant first requested that his attorney
assert his rights. That additional inquiry is
irrelevant to the ineffective assistance issue,
and should be rejected by this court.

  Finally, the most egregious error by the Lear
panel is its determination that there is no
prejudice. That holding is not grounded on any
particular facts presented here, but on a
presumption that it is "exceedingly unlikely"
that such an inquiry would have either disposed
the jury to lenity or favorably altered the
composition of the jury. Of course, this is
precisely the opposite of the presumption set
forth in Turner, which held:
Our judgment in this case is that there was an
unacceptable risk of racial prejudice infecting
the capital sentencing proceeding. This judgment
is based on a conjunction of three factors: the
fact that the crime charged involved interracial
violence, the broad discretion given the jury at
the death-penalty hearing, and the special
seriousness of the risk of improper sentencing in
a capital case.

476 U.S. at 37 (Justices White, Blackmun, Stevens
& O’Connor); see also id. at 41 (Justice Brennan,
concurring in part and dissenting in part,
agreeing that the confluence of factors created
an unacceptable risk of a biased jury), and id.
at 45 (Justice Marshall, concurring in part and
dissenting in part). All three of those factors
are present here, and that was sufficient for the
Turner Court to find an unacceptable risk that
the jury was not impartial absent the questioning
on the issue. In fact, "Turner explicitly
rejected the dissent’s suggestion that the death
sentence should stand because no actual jury
prejudice was evident from the record." Rose v.
Clark, 478 U.S. 570, 587 n.2 (1986) (Stevens, J.
concurring). The Lear panel’s presumption that
the Turner questioning would have no impact on
the ability to achieve an impartial jury cannot
be reconciled with Turner.

  Justice Powell in his Turner dissent lamented
that "[b]efore today the facts that a defendant
is black and his victim was white were
insufficient to raise ’a constitutionally
significant likelihood that, absent questioning
about racial prejudice,’ an impartial jury would
not be seated." The Lear panel has answered his
lament by adopting his dissent. After Lear, at
least in the Seventh Circuit, the fact that a
defendant is black and his victim was white is
now insufficient to raise a constitutionally
significant likelihood that, absent questioning
about racial prejudice, an impartial jury would
not be seated. Because this eviscerates Turner, I
dissent from the denial of rehearing en banc.
  Williams, Circuit Judge, with whom Rovner and Diane
P. Wood, Circuit Judges, join, dissenting from the
denial of rehearing en banc. I respectfully
dissent from the denial of the petition for
rehearing en banc because this case presents an
issue of exceptional importance with respect to
Petitioner’s ineffective assistance of counsel
claim that he premised on Turner v. Murray, 476
U.S. 28 (1986). Turner holds that "a capital
defendant accused of an interracial crime is
entitled to have prospective jurors informed of
the race of the victim and questioned on the
issue of racial bias." Id. at 36-37. The Illinois
Supreme Court, in construing Turner, rejected
Petitioner’s claim in part because he did not ask
his lawyer to question prospective jurors about
racial bias. In Turner, however, Justice White,
writing for a majority of justices, only
indicated that the court need not make the
inquiry sua sponte if it is not requested by the
defendant’s counsel. See id. at 37 n.10. Based on
my reading, Turner does not stand for the
proposition that a capital defendant himself must
demand the inquiry into racial bias. Instead, the
defendant’s counsel is expected to make the
request for the defendant, and his failure to do
so must be analyzed under the traditional test
set forth in Strickland v. Washington, 466 U.S.
668, 688-94 (1984). The Illinois Supreme Court
misapprehended the Turner holding by
preliminarily determining whether Petitioner
first requested that his lawyer assert his Turner
rights. A lay defendant should not have to bear
the obligation to protect his own constitutional
right to an impartial jury when represented by
counsel, and we should not tolerate this material
misapprehension of Turner.

  Turning to the Strickland test, the Illinois
Supreme Court ultimately concluded that counsel’s
failure to make a Turner inquiry was a matter of
trial strategy and the panel endorsed that
determination. In order for counsel’s decision to
be "strategic," in my view, counsel must have at
least been aware of Petitioner’s entitlement to a
Turner inquiry and consciously decided to ask
"general questions about bias without focusing on
race." I am unconvinced by the record that
counsel’s failure to make a Turner inquiry was
indeed strategic. To be sure, the record lacks
sufficient facts to suggest that counsel was even
aware of Petitioner’s entitlement to a Turner
inquiry. Counsel, armed with only two years of
legal experience, had never before been assigned
to a capital case and testified that he had no
reason for failing to request the Turner inquiry
even though he was concerned about racial bias.
If, as the record suggests, counsel was unaware
of the Turner right, his failure to make a Turner
inquiry could not have been a matter of trial
strategy. Therefore, Petitioner was denied his
right to question prospective jurors on the
subject of racial bias, and counsel’s failure to
make a Turner inquiry without tactical reason
given the "tough circumstances" that confronted
him fell below minimum professional standards
under the Strickland test. See Strickland, 466
U.S. at 688-94.

  I am further troubled by the panel’s suggestion
that Petitioner must establish actual prejudice.
"Turner explicitly rejected the dissent’s
suggestion that the death sentence should stand
because no actual jury prejudice was evident from
the record." Rose v. Clark, 478 U.S. 570, 587 n.2
(1986) (Stevens, J. concurring). Here, as in
Turner, the likelihood that the jury was biased
constitutes sufficient harm to the Petitioner.
Accordingly, I would grant the petition for
rehearing en banc in order to clarify Turner in
the context of an ineffective of assistance of
counsel claim.
