In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1082 & 99-2613

Ramiro Hernandez,

Petitioner-Appellant,

v.

Roger D. Cowan, Warden,

Respondent-Appellee.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97-C-1296--Ruben Castillo, Judge.


Argued December 3, 1999--Decided January 3, 2000



  Before Posner, Chief Judge, and Coffey and Manion,
Circuit Judge.

  Posner, Chief Judge. In 1979, Ramiro Hernandez
was tried together with Daniel Santisteven in an
Illinois state court for murder, was convicted by
the jury, and was sentenced to fifty years in
prison, where he remains. After his conviction
was affirmed and his request for state
postconviction relief denied, he sought federal
habeas corpus, which was also denied,
precipitating this appeal. He had failed to seek
discretionary review from the Supreme Court of
Illinois of either of the two state court
appellate decisions in his case; and, invoking
O’Sullivan v. Boerckel, 119 S. Ct. 1728 (1999),
involving direct review of convictions, and White
v. Godinez, 192 F.3d 607 (7th Cir. 1999) (per
curiam), extending O’Sullivan to review of
denials of postconviction relief, the state
argues that this failure forfeits his right to
obtain relief by means of a federal habeas corpus
proceeding. The petitioner replies that the state
waived the argument by failing to make it in the
district court. To this the state responds that
O’Sullivan and White were decided after the
district court proceedings and overruled the
position of this court, which had been that
failure to seek discretionary review from the
state’s highest court is not a procedural default
barring federal habeas corpus.
  In short, the petitioner is arguing waiver of
waiver, now a well-established doctrine, e.g., In
re Brand Name Prescription Drugs Antitrust
Litigation, 186 F.3d 781, 790 (7th Cir. 1999);
United States v. Woods, 148 F.3d 843, 849 n. 1
(7th Cir. 1998); Atkins v. New York City, 143
F.3d 100, 102-03 (2d Cir. 1998); United States v.
Reider, 103 F.3d 99, 103 n. 1 (10th Cir. 1996),
that we applied against the State of Illinois in
another habeas corpus case, Fagan v. Washington,
942 F.2d 1155, 1157 (7th Cir. 1991), while the
state is asking that its waiver be excused on the
ground that it would have been futile to argue
waiver at a time when the law of this circuit was
contrary; it would just have irritated the
judges. This argument cannot be right. For years
the State of Illinois had been arguing in the
district courts of this circuit and in this court
that failure to seek discretionary review by the
state’s highest court forfeited a state
prisoner’s right to federal habeas corpus. E.g.,
Jenkins v. Nelson, 157 F.3d 485, 497 (7th Cir.
1998); United States ex rel. Gonzalez v.
Thornton, No. 97 C 5585, 1999 WL 92902, at *3
(N.D. Ill. Feb. 17, 1999). We had never
criticized the state for seeking to preserve the
issue for possible review by the U.S. Supreme
Court. O’Sullivan had originated in this circuit,
and in that case the state had argued the waiver
point in both the district court and this court,
contemporaneously with the present litigation.
The state’s failure to argue or at least reserve
the point in the present case, especially when
the existence of a circuit split made the
possibility of Supreme Court correction more than
merely theoretical, is inexplicable; and a
foreseeable change in law is (if it comes to
pass) at best a weak ground for relieving a party
of the consequences of its waiver. Carr v.
O’Leary, 167 F.3d 1124, 1126-27 (7th Cir. 1999).
So we shall proceed to the merits.

  The principal issue is whether Hernandez was
denied effective assistance of counsel at his
murder trial. The essential facts are as follows,
and are uncontested. Jorge Orosco was killed on a
street in Chicago in a hail of bullets at about 1
a.m. Six bullets were removed from his body, and
three were discovered to have come from a
revolver owned by Santisteven; the revolver that
fired the other three bullets has never been
found. Several weeks later the police questioned
a young man named Angel Cruz, and on the basis of
the questioning arrested Santisteven for the
murder two years earlier of Gilbert Santiago. A
search of Santisteven’s home turned up his
revolver along with a number of other firearms.
On the same day, police arrested Hernandez for
Orosco’s murder, but a search of Hernandez’s home
yielded no incriminating evidence.
  Santisteven, arrested as we have said for the
murder of Santiago (for which, however, he has
never been tried, even though he was identified
in a lineup as Santiago’s killer), confessed to
involvement in Orosco’s murder as well and was
duly indicted, along with Hernandez, for that
murder. Santisteven moved before trial to
suppress his confession. At the suppression
hearing that ensued he testified that the police
had said they would help him in a variety of ways
(including not pressing any charges of illegal
possession of guns) if he implicated Hernandez in
the murder, and that he had responded to their
offer of help by stating that Hernandez had
killed Orosco and that the latter was already
dead when he, Santisteven, shot him. (Yet the
bullets that matched Santisteven’s gun were
removed from the victim’s head, and the bullets
of unknown providence from his trunk.) Not only
was Santisteven never prosecuted for Santiago’s
murder; he was never prosecuted for illegal
possession of the arsenal of firearms taken from
his home during the search. Although convicted
along with Hernandez at their joint trial of the
murder of Orosco, Santisteven was sentenced to
only 25 years, half the length of Hernandez’s
sentence, and he has since been released.

  Hernandez’s lawyer moved to sever the trials of
the two defendants on the ground that
Santisteven’s confession implicated Hernandez as
well. The judge denied the motion on the ground
that all references in the confession to
Hernandez would be excised in the version read to
the jury, in conformity with the rule of Bruton
v. United States, 391 U.S. 123 (1968); and this
was done.

  The only evidence presented in the government’s
case-in-chief of Hernandez’s guilt was testimony
by Cruz, who knew Hernandez, that he had heard
the shots that did in Orosco and had seen two men
running toward him (Cruz), one of whom was
Hernandez; the other he couldn’t identify. There
was nothing in Cruz’s testimony to indicate
whether the two men were running because they
were afraid (Cruz himself was running, for just
that reason, when he saw them) or because they
were the shooters.

  Hernandez moved for acquittal at the close of
the government’s case, but this was denied and he
argues that the denial violated his due process
right not to be convicted on evidence
insufficient to persuade a rational jury of guilt
beyond a reasonable doubt. E.g., In re Winship,
397 U.S. 358, 364 (1970). No doubt the denial was
erroneous as a matter of state law, for no
reasonable jury could have convicted Hernandez on
Cruz’s evidence alone; but we cannot find any
basis in federal constitutional law as laid down
by the U.S. Supreme Court (the applicable
criterion in a federal habeas corpus proceeding,
Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.
1999)) for the proposition that due process is
violated by the denial of a motion to acquit in
the middle of the case. The proposition is in any
event inconsistent with the settled rule that in
deciding whether a defendant is guilty the jury
can consider all the evidence, regardless of
which side introduced it, and so can rely on
evidence presented by the defendant, which he may
have erroneously believed exculpatory. United
States v. Guerrero, 114 F.3d 332, 339 (1st Cir.
1997); United States v. Ruiz, 105 F.3d 1492, 1495
n. 1 (1st Cir. 1997); United States v. Lopez, 625
F.2d 889, 897 (9th Cir. 1980); 1 Wayne R. LaFave
& Austin W. Scott, Jr., Substantive Criminal Law
sec. 1.8(h), p. 83 (1986).

  After the motion to acquit was denied, the
defense case began and Santisteven took the stand
and testified, consistently with his confession,
that he had shot Orosco only after Hernandez had
killed him. But he added to the statements in the
confession that he had done so because Hernandez
believed that Orosco was a member of a rival
gang. Hernandez then testified that he had been
at home asleep when Orosco was murdered. He also
denied a gang affiliation. In closing argument,
the prosecutor adopted Santisteven’s version of
the facts, and he also told the jury that he was
"not intimidated by the punks out in the gallery.
. . . I’m not intimidated by the Imperial
Gangsters [Hernandez’s alleged gang], nor am I
intimidated by the Latin Kings, and by God I hope
the jury isn’t intimidated by it." (The "punks"
in the gallery were actually the family and
friends of Orosco, rather than of either
defendant.) The prosecutor also told the jury
that Santisteven’s confession had been "presented
to you in partial form. . . . [F]or legal reasons
you could not hear the whole story."

  Although Hernandez’s trial lawyer moved for
severance, he did so on the wrong ground; and
while a mistake is not the same thing as
malpractice, it is plain that the lawyer’s
failure to move on the right ground failed to
come up to a minimum standard of professional
competence. For the lawyer had inexcusably failed
to attend the suppression hearing (or to read the
transcript of it either at all or with
comprehension), at which he would have learned
that the defendants had antagonistic defenses and
that if Santisteven testified at Hernandez’s
trial he would fill the void in the government’s
case against Hernandez. The district judge
rightly concluded both that the lawyer had indeed
fallen below the threshold of competent
representation, see Williams v. Washington, 59
F.3d 673, 682 (7th Cir. 1995); United States v.
Zackson, 6 F.3d 911, 919-20 (2d Cir. 1993);
United States v. Yizar, 956 F.2d 230 (11th Cir.
1992); cf. Hall v. Washington, 106 F.3d 742, 749-
50 (7th Cir. 1997); Kenley v. Armontrout, 937
F.2d 1298, 1304-08 (8th Cir. 1991); compare
United States v. Jackson, 33 F.3d 866, 875-76
(7th Cir. 1994), and that the state trial judge,
if properly advised of the situation, would have
severed the trial of the two defendants. See
People v. Bean, 485 N.E.2d 349, 355 (Ill. 1985);
People v. Rodriguez, 680 N.E.2d 757, 766 (Ill.
App. 1997); see also Williams v. Washington,
supra, 59 F.3d at 683 (discussing Illinois
severance law). Not because severance is
automatic under either Illinois or federal law,
Zafiro v. United States, 506 U.S. 534, 539
(1993), though only the former is relevant to
this issue if codefendants have antagonistic
defenses; but because when the nature of the
antagonism is such as to make one defendant the
accuser of the other, so that the other has to
defend not only against the state’s evidence but
also against testimony offered by his fellow
defendant, the Illinois courts order severance.
E.g., People v. Bean, supra, 485 N.E.2d at 355.

  But we must consider whether there was a
reasonable probability (Strickland v. Washington,
466 U.S. 668, 694 (1984)) that the severance
would have made a difference to the outcome of
the trial. If Santisteven would have taken the
stand in a separate trial of Hernandez and been
cross-examined as he was in the joint trial, the
answer is "no." But he would have taken the stand
only if he had been promised a break if he did
so, and such a deal would have exposed him to
potentially very damaging cross-examination,
which would have revealed that Santisteven was
strongly suspected of having committed another
murder, thus casting the deal in a particularly
unsavory light. (If he would not have taken the
stand, Hernandez would have had no incentive to
do so, and would almost certainly have been
acquitted.) It would have been apparent to the
jury that the defendant who admitted having shot
the murder victim and who was in jeopardy of
being prosecuted for still another murder (and
might therefore be a prime candidate for capital
charges) was trying in exchange for leniency to
pin the blame on the other defendant, and the
jury might well have been skeptical of
Hernandez’s guilt given the dearth of other
evidence against him.

  The point is not that, had Hernandez’s lawyer
been up to snuff, valid evidence of his client’s
guilt would have been withheld from the jury;
assistance of counsel is not constitutionally
ineffective when the lawyer’s pratfalls do not
undermine confidence in the accuracy of the
verdict. Holman v. Page, 95 F.3d 481, 490 (7th
Cir. 1996). So weak was the evidence against
Hernandez apart from Santisteven’s testimony, and
so weak would that testimony have been if
effective cross-examination had been feasible,
that counsel’s ineffectuality does undermine our
confidence that Hernandez was actually guilty.

  At argument the state’s lawyer spun some
fanciful webs for us, for example suggesting that
had the motion to sever been granted Santisteven
would have been tried first, convicted, and then
for the hell of it would have testified at
Hernandez’s trial, though he would have had
nothing to gain by doing so. Anything is
possible, but if Santisteven had testified as the
state’s witness he would have been ripped apart
on cross-examination. In summary, it is
reasonably probable that but for the subpar
performance of Hernandez’s lawyer, Hernandez
would have been acquitted. United States v.
Yizar, supra, 956 F.2d at 233-34; see also
Williams v. Washington, supra, 59 F.3d at 682-83.
He is entitled to a new trial within 120 days, or
failing that to be released. In light of this
ruling, it is unnecessary to consider whether the
prosecutor’s closing argument, though
reprehensible, independently violated Hernandez’s
constitutional rights.

Reversed.
