In the
United States Court of Appeals
For the Seventh Circuit

No. 98-4078

EDDIE LEE FRYER,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 3921--Milton I. Shadur, Judge.


Argued September 28, 2000--Decided March 2, 2001



  Before FLAUM, Chief Judge, BAUER, and HARLINGTON WOOD,
JR., Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. On October
11, 1991, Eddie Fryer was convicted by a jury on
three counts of bank robbery and two counts for
the use of a firearm during the commission of a
violent felony. The charges were based on three
separate armed bank robberies. On direct appeal,
Fryer’s sentence and conviction were affirmed by
this court in United States v. Fryer, 974 F.2d
813 (7th Cir. 1992), cert. denied, 508 U.S. 941
(1993). On June 24, 1996, Fryer filed a pro se
motion pursuant to 28 U.S.C. sec. 2255 to vacate
his conviction on the grounds of ineffective
assistance of counsel at trial. On April 25,
1997, Fryer filed an amendment to his sec. 2255
motion raising the applicability of Old Chief v.
United States, 519 U.S. 174 (1997), to his case
as a separate issue. The district court appointed
counsel for Fryer and ultimately denied Fryer’s
motion. Fryer appealed the district court’s
denial and filed a petition for a certificate of
appealability. The district court granted Fryer’s
certificate on one issue only, whether Old Chief
should apply to the admission of Fryer’s prior
felony conviction which was presented at trial.
Fryer then filed in this court a motion for
enlargement of the issues in the certificate of
appealability. We denied the motion in an order
issued on November 30, 1999. We now hold that Old
Chief does not apply and affirm the denial of
Fryer’s habeas petition.

I.   Background

  A detailed presentation of the facts of Fryer’s
case may be found in Fryer, 974 F.2d at 814-18.
Due to the limited nature of this inquiry, we
recount only the facts which are relevant to the
issue in this opinion. Fryer was charged with
three counts of bank robbery with the use of a
dangerous weapon in violation of 18 U.S.C.
sec.sec. 2113(a) and (d), three counts for the
use of a weapon during and in relation to the
commission of a crime of violence under 18 U.S.C.
sec. 924(c), and a seventh count for possession
of a firearm by a felon in violation of 18 U.S.C.
sec. 922(g). He was found guilty on three bank
robbery counts and two counts for the use of a
weapon during two of the bank robberies.

  In presenting the necessary elements under Count
7, possession of a firearm by a felon, the
government sought to enter into evidence a
certified judgment of conviction ("CJ") in order
to satisfy the prior felon element. The CJ
contained the name and nature of the prior
offense, which was robbery. Fryer objected,
arguing the CJ was highly prejudicial because it
was the same offense for which he was currently
being tried. Although the district court
overruled Fryer’s objection, before allowing the
evidence to be introduced, the judge admonished
the jury regarding the limited purpose for which
they could use the prior conviction.

You are about to hear evidence with respect to
defendant Eddie Lee Fryer having been convicted
of an offense punishable by imprisonment for a
term exceeding one year. This evidence may be
considered by you only on the question whether
the government has established one of the
elements of the offense that’s charged in Count
7 of the indictment, which you will have later
on. You will recall from opening statements that
there was a reference to one of the charges
having to do with the defendant’s allegedly
having possession of a firearm at a time that he
had previously been convicted of what we referred
to as a felony offense--that is, something
punishable by imprisonment for a term exceeding
one year. So that the evidence that you are about
to hear may be considered by you only for that
limited purpose, not for any other purpose in
connection with the case.

The government attorney then read to the jury the
CJ, which stated that Fryer had been charged with
armed robbery, was convicted of armed robbery,
and was sentenced "to three years probation, the
first six months in the Cook County Department of
Corrections." Fryer immediately objected to the
accuracy of the CJ, noting that armed robbery was
not a probationable offense under the Illinois
statute. From what the court and attorneys could
deduce, Fryer had been charged with armed robbery
but convicted of robbery, a lesser offense. The
district court then instructed the jury to
disregard the published CJ and ordered the
government to obtain a corrected replacement. A
second CJ was obtained, which contained the
correct charge and conviction but an incorrect
sentence. While preserving his objection to the
admissibility of the exact nature of the
conviction, Fryer agreed to stipulate to the fact
that he had previously been charged with armed
robbery, convicted for the lesser offense of
robbery, and was sentenced.

  At the end of the trial, while instructing the
jury as to the felon-in-possession count, the
district court repeated the earlier limiting
instruction it had given, noting that,

you have heard evidence that defendant Eddie Lee
Fryer has been convicted then of an offense
punishable by imprisonment for a term exceeding
one year. Importantly, you may consider that
evidence only on the question whether the
government has established an element of the
offense charged in Count 7 of the indictment.
That evidence is to be considered by you only for
that limited purpose and for no other.

Fryer was acquitted on Count 7. However, Fryer
maintains that allowing the jury to learn the
nature of his prior conviction prejudiced him in
the jury’s consideration of the three counts of
armed bank robbery.

II. Analysis
A. Standard of Review

  We review a district court’s denial of a sec.
2255 petition on factual matters for clear error,
and on questions of law de novo. See
Arango-Alvarez v. United States, 134 F.3d 888,
890 (7th Cir. 1998).

  We note that the district court addressed the
effect on Fryer’s petition of the enactment of
the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), which went into effect on
April 24, 1996, after Fryer’s direct appeal was
finalized in 1993, but before his collateral
appeal was filed in 1996./1 As pertains to the
single issue before us now, AEDPA limits the time
a petitioner may bring a sec. 2255 motion to one
year, in Fryer’s case, running from "the date on
which the right asserted was initially recognized
by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review." 28 U.S.C. sec. 2255(3). Fryer timely
filed an amendment to his petition after the
publication of Old Chief in 1997. In Old Chief,
the Supreme Court resolved a split of authority
in the federal courts and ruled that evidence of
prior felony convictions used to support a charge
under 18 U.S.C. sec. 922(g)(1) should not be
heard by the jury where the defendant offers to
stipulate to the existence of such convictions.
519 U.S. at 191.

  Fryer originally attacked this same issue on
the merits in his direct appeal when he
challenged the admissibility of evidence under
Federal Rule of Evidence 403, arguing that
allowing the jurors to learn the nature of his
prior conviction unfairly prejudiced him, which,
he claims, was evidenced by the jury’s
convictions on the robbery counts. A panel of
this court found that "any prejudice to [Fryer]
was insubstantial, if not nonexistent, in the
face of the overwhelming evidence of his guilt,"
and noted that the district court correctly gave
a cautionary instruction limiting the use of the
prior conviction to consideration of the felon-
in-possession count only. Fryer, 974 F.2d at 823.

  Then, in his July 23, 1997 reply in support of
his sec. 2255 petition, Fryer transformed his
failed evidentiary argument into a "new" issue by
stating that "Old Chief constitutes new law which
should be retroactively applied," and noted,
"Under the Teague [v. Lane, 489 U.S. 288 (1989)]
analysis, the rule set forth in Old Chief
qualifies under the second exception to the
general rule of nonretroactivity for cases on
collateral review--it requires the observance of
those procedures that . . . are implicit in the
concept of ordered liberty," or "[p]ut another
way, the Court’s ruling in Old Chief qualifies as
a watershed rule of criminal procedure
implicating the fundamental fairness and accuracy
of the criminal proceeding." In his April 29,
1997 amendment motion to his sec. 2255 petition,
Fryer acknowledged that applying Old Chief to his
habeas petition presented a retroactivity issue
because his case had become final on May 24,
1993, when his petition for certiorari was
denied. See Fryer v. United States, 508 U.S. 941
(1993). In his petition for certificate of
appealability, Fryer added one sentence to his
"exception to Teague" argument, stating that the
holding in Old Chief "may not be a new rule as
defined in Teague and, therefore, may be
retroactively applied on collateral review."
Finally, in his appellate brief he argues that,
because existing precedent dictated that the name
and nature of his prior conviction should not
have been disclosed, there is no new rule of law.

  To address all of Fryer’s arguments, we first
review the holding in Old Chief to determine if
it establishes a new rule of law./2 The
defendant in Old Chief was charged with numerous
counts, including a felon-in-possession count
under 18 U.S.C. sec. 922(g)(1). 519 U.S. at 174.
Old Chief filed a pre-trial motion to exclude any
mention or prohibit any evidence as to the exact
name and nature of his prior criminal
convictions, but agreed to stipulate to the fact
that he had been convicted of a crime punishable
by imprisonment exceeding one year, which is a
felony. Id. at 175. The government refused to
join in the stipulation and the district court
overruled both Old Chief’s pre-trial motion and
a second objection made during trial. Id. at 177.
Also, as the Court noted, the jury instruction as
to the felon-in-possession charge was erroneous,
although it did state, "You may not consider a
prior conviction as evidence of guilt of the
crime for which the defendant is now on trial."
Id. at 176 n.2. Old Chief was convicted of all
charges brought against him. Id. at 176. The
Court held that the government’s introduction at
trial of evidence that revealed the exact name
and nature of the defendant’s prior felony
conviction to support a charge under 18 U.S.C.
sec. 922(g)(1), where the defendant offered to
stipulate to the fact of a prior felony, unfairly
prejudiced the defendant under the terms of Rule
403. Id. at 191-92.

  Fryer’s case is clearly distinguished from that
of Old Chief. As the record indicates, Fryer
objected to stating the offense but did not offer
to stipulate. Only after giving a detailed
cautionary instruction did the court allow the CJ
to be presented. After the CJ was first read,
Fryer objected to the accuracy. The government
then offered to stipulate as to the nature and
sentencing of the conviction but both counsel and
the judge agreed to wait for a second CJ with
correct information. When the new CJ arrived, the
sentence was incorrect. The judge suggested a
stipulation as to the correct charge, conviction,
and sentencing. Defense counsel agreed although
he preserved his objection to a reading of the
exact name and nature of the charges. The court
also gave an additional limiting instruction
prior to deliberation. The jury acquitted Fryer
on two counts, one of which was the felon-in-
possession charge. However, even though Fryer’s
case does not follow the criteria of Old Chief,
because Fryer is seeking the benefit of what may
be a new rule of law, we must apply Teague before
considering the merits of the claim. See Caspari
v. Bohlen, 510 U.S. 383, 389 (1994).
  More than ten years ago, the Supreme Court held
that "a new rule for the conduct of criminal
prosecutions is to be applied to all cases, state
or federal, pending on direct review or not yet
final, with no exception for cases in which the
new rule constitutes a ’clear break’ with the
past." Griffith v. Kentucky, 479 U.S. 314, 328
(1987). A petitioner seeking application of a new
rule generally must show that the new rule was
announced while his case was on direct appeal or
not yet final. Id. at 321 & n.6 (holding that a
case is final with respect to retroactivity
analysis "in which a judgment of conviction has
been rendered, the availability of appeal
exhausted, and the time for a petition for
certiorari elapsed or a petition for certiorari
finally denied."). However, a case on collateral
review is generally not entitled to retroactive
application of new rules. Mackey v. United
States, 401 U.S. 667, 682-83 (1971).

  In Old Chief, the Court stated that the
"principal issue is the scope of a trial judge’s
discretion under Rule 403." 519 U.S. at 180. Rule
403 provides that a district court may exclude
relevant evidence if, among other things, "its
probative value is substantially outweighed by
the danger of unfair prejudice . . . ." The Court
noted at that time, "the accepted rule was that
the prosecution is entitled to prove its case
free from any defendant’s option to stipulate the
evidence away." Id. at 189. However, the Court
then noted that this "accepted" rule "has . . .
virtually no application when the point at issue
is a defendant’s legal status, dependent on some
judgment rendered wholly independently of the
concrete events of later criminal behavior
charged against him." Id. at 190. Therefore, "in
any [case] in which the prior conviction is for
an offense likely to support conviction on some
improper ground, the only reasonable conclusion
was that the risk of unfair prejudice did
substantially outweigh the discounted probative
value of the record of conviction, and it was an
abuse of discretion to admit the record when an
admission was available." Id. at 191. "[T]his
will be the general rule when proof of convict
status is at issue." Id. at 192. The Court seems
to acknowledge a clear break from the previously
"accepted" rule of prosecutorial entitlement,
creating a "new rule" for proof of convict
status. The dissenting justices recognized this
as "a newly minted rule that a defendant charged
with violating sec. 922(g)(1) can force the
Government to accept his concession to the prior
conviction element of the offense, thereby
precluding the Government from offering evidence
on this point." Id. at 192-93 (5-4 decision)
(O’Connor, J. dissenting) (emphasis added).
  One of Fryer’s arguments asserts that, although
this is a new rule of law, his case falls within
an exception allowing for retroactivity. The
application of a new rule of law and the limited
exceptions to this rule of preclusion are set
forth in Teague v. Lane. 489 U.S. at 311. In
Teague, the Supreme Court held that on collateral
review, "new constitutional rules of criminal
procedure will not be applicable to those cases
which have become final before the new rules are
announced," providing for only two narrow
exceptions. Id. at 310. The two exceptions are
(1) rules which place "certain kinds of primary,
private individual conduct beyond the power of
the criminal law-making authority to proscribe,"
and (2) rules establishing watershed principles
of criminal procedure that are "implicit in the
concept of ordered liberty." Id. at 311
(citations omitted). As the Court explained in
Teague, a case announces a new rule if it breaks
new ground, imposes a new obligation on the
states or the federal government, or if the
result was not dictated by precedent existing at
the time the defendant’s conviction became final.
Id. at 301; see also Stewart v. Lane, 60 F.3d
296, 300 (7th Cir. 1995). The Court presented a
three-step analysis for applying Teague to
determine if a case announced a new rule of law.

First, the court must ascertain the date on which
the defendant’s conviction and sentence became
final for Teague purposes. Second, the court must
survey the legal landscape as it then existed,
and determine whether a state court considering
the defendant’s claim at the time his conviction
became final would have felt compelled by
existing precedent to conclude that the rule he
seeks was required by the Constitution. Finally,
even if the court determines that the defendant
seeks the benefit of a new rule, the court must
decide whether that rule falls within one of the
two narrow exceptions to the nonretroactivity
principle.

Caspari, 510 U.S. at 390 (internal quotations,
citations, and alterations omitted). Although it
may seem obvious that the Court created a new
rule in Old Chief, because there was a split in
the federal courts concerning conviction status,
it is necessary to examine the holdings of
Seventh Circuit cases prior to Old Chief.
Therefore, we must conduct the three-step
analysis in Caspari.

  As to the first prong, there is no dispute
Fryer’s conviction was final on May 24, 1993 when
his petition for certiorari was denied. For the
second prong, we must survey the legal landscape
as it existed on May 24, 1993 and "determine
whether reasonable jurists would have felt
compelled by existing precedent on that date to
conclude that the rule announced in [Old Chief]
was required by the Constitution." Spreitzer v.
Peters, 114 F.3d 1435, 1443 (7th Cir. 1997)
(citing Graham v. Collins, 506 U.S. 461, 467
(1993) ("unless reasonable jurists hearing
petitioner’s claim at the time his conviction
became final would have felt compelled by
existing precedent to rule in his favor, we are
barred from doing so now.")). In United States v.
Allen, 798 F.2d 985, 1001 (7th Cir. 1986), the
government introduced at trial a certified copy
of the defendant’s prior conviction of armed bank
robbery, where a prior felony conviction was an
element of the crime charged. Id. Allen objected
and suggested that he stipulate only to the
element of the charge but not inform the jury of
the prior conviction. Id. Stating that the
general rule was that "the prosecution is
entitled to prove its case free from any
defendant’s option to stipulate the evidence
away," (as had been discussed in Old Chief, 519
U.S. at 189), the court in Allen held that "[i]n
most, but not all, cases, a party is not required
to accept a judicial admission of his adversary,
but may insist on proving the fact." 798 F.2d at
1001. Although the court noted that the general
rule was the same as the balancing test required
by Rule 403, the panel stated that "a cold
stipulation can deprive a party of the legitimate
moral force of his evidence and can never fully
substitute for tangible, physical evidence or the
testimony of witnesses." Id. (internal quotations
and citations omitted). The court held that the
district court did not err in admitting the
certificate of conviction. Id. at 1002.

  More specifically, in United States v. Hope,
906 F.2d 254, 259 (7th Cir. 1990), one of the
charges against the defendant was for a violation
of sec. 922(g)(1). Hope’s stipulation to a prior
felony included the nature of the conviction,
that of deviate sexual assault. The court noted
that the evidence did not make the jury aware of
any prior conviction beyond that necessary as an
element of the offense, and that the government
did not suggest to the jury that the prior
conviction demonstrated a likelihood that he had
committed the offense charged, nor did the
government elaborate on the specifics of the
prior conviction. Id. The court held that even
though the district court had failed to give a
limiting instruction, what error there was, was
harmless. Id. at 260. In United States v.
Madewell, 917 F.2d 301, 305 (7th Cir. 1990), also
a case where one of the charges against the
defendant was for a violation of sec. 922(g)(1),
the defendant argued that he should have been
allowed to stipulate to his prior conviction,
which was for a drug-related charge. Id. Madewell
maintained that the prior conviction was so
highly prejudicial that it would "lead to a
conviction based on the inference that he was
acting in conformity with past misconduct rather
than on the basis of proof of guilt beyond a
reasonable doubt." Id. The court found
"unpersuasive the proposition that knowledge of
the nature of Madewell’s prior felony and not
knowledge of the[ ] facts caused the jury to find
Madewell guilty," noting that the effect of a
stipulation or limiting instruction would have
had an insignificant effect on the outcome of the
trial. Id.

  Although the balancing test under Rule 403 has
guided this and all other courts in determining
whether the probative value of evidence is
outweighed by the danger of unfair prejudice,
precedent in this circuit prior to May 1993 would
suggest that the name and nature of a prior
conviction which was introduced as an element of
an offense were allowed even when the defendant
objected and requested a stipulation. In light of
these previous cases, we conclude that reasonable
jurists could have disagreed over whether
evidence of the name and nature of a prior
conviction should not be allowed, and the issue
was therefore "susceptible to debate among
reasonable minds." See Graham, 506 U.S. at 476
(internal quotation and citation omitted). The
district court made a good faith interpretation
of existing precedent during Fryer’s trial and
did not proceed in a manner contrary to or which
was an unreasonable application of clearly
established federal law as determined by the
United States Supreme Court. See, cf., id.;
Spreitzer, 114 F.3d at 1447. We find that Old
Chief announced a new rule under Teague and that
Fryer would not be entitled to benefit from that
new rule on habeas review.

  Finally, under the third step of the analysis,
we must determine whether Old Chief falls within
either of the two narrow exceptions as stated in
Teague. We agree with the holding of the Sixth
Circuit in In re Green, 144 F.3d 384, 387 (6th
Cir. 1998) (per curiam).

The decision in Old Chief announced a new rule
concerning the admissibility of evidence in a
criminal case. . . . This decision did not merely
reaffirm the proper interpretation of existing
law. (citation omitted). . . . The decision in
Old Chief did not place certain kinds of primary,
private individual conduct beyond the power of
the criminal law-making authority to proscribe,
or otherwise prohibit imposition of a certain
type of punishment for a class of defendants
because of their status or offense; nor did it
announce a new "watershed" rule of criminal
procedure implicating the fundamental fairness
and accuracy of the criminal proceeding. Hence,
the rule is not retroactive, and is therefore
inapplicable on collateral review.

Id. (citing Caspari, 510 U.S. at 396); see also
Nelson v. United States, 184 F.3d 953, 955 (8th
Cir. 1999) (holding that Old Chief was not an
exception under Teague, and "merely announced a
new rule concerning the admissibility of evidence
in a criminal case."). We find that the decision
in Old Chief does not fall within either of the
two exceptions.

  In Fryer’s final argument, which appeared for
the first time in his appellate brief, he
maintains that the Court in Old Chief did not
create a new rule of law within the meaning of
Teague, but determined the meaning of a
congressional enactment. Therefore, Fryer asserts
that under the holding of Bousley v. United
States, 523 U.S. 614 (1998), Old Chief should be
applied retroactively to his case. We note that
technically, the Bousley argument is waived
because it was never raised at the district court
level. See Huntzinger v. Hastings Mut. Ins. Co.,
143 F.3d 302, 307 (7th Cir. 1998) ("there may
exist narrow exceptions to the general rule
barring consideration of new arguments on appeal
’where jurisdictional questions are presented or
where, in exceptional cases, justice demands more
flexibility.’" (quoting Stern v. United States
Gypsum, Inc., 547 F.2d 1329, 1333 (7th Cir.
1977)). Fryer’s case does not "implicate[ ]
jurisdictional issues nor give[ ] rise to
exceptional circumstances." See id.

  In any event, Fryer’s argument would fail even
if it had been raised before this appeal. The
Supreme Court did not apply the rule of Teague in
Bousley, but determined that in a sec. 2255
collateral relief case where the only
constitutional claim was whether or not the
petitioner’s guilty plea was knowing and
intelligent, Teague, which applied only to
procedural rules, was inapplicable "to the
situation in which this Court decides the meaning
of a criminal statute enacted by Congress."
Bousley, 523 U.S. at 620. The Court noted that
the Teague doctrine was based on the notion that
one of the "principal functions of habeas corpus
[is] to assure that no man has been incarcerated
under a procedure which creates an impermissibly
large risk that the innocent will be convicted."
Id. (internal quotations and citations omitted).
The Court also observed,

[U]nless a new rule of criminal procedure is of
such a nature that "without [it] the likelihood
of an accurate conviction is seriously
diminished," [Teague v. Lane,] 489 U.S., at 313,
there is no reason to apply the rule
retroactively on habeas review. By contrast,
decisions of this Court holding that a
substantive federal criminal statute does not
reach certain conduct, like decisions placing
conduct "’beyond the power of the criminal law-
making authority to proscribe,’" id., at 311
(quoting Mackey v. United States, 401 U.S. 667,
692 (1971)), necessarily carry a significant risk
that a defendant stands convicted of "an act that
the law does not make criminal." Davis v. United
States, 417 U.S. 333, 346 (1974).

Id. Having already determined that the facts of
Fryer’s case do not fall within the exceptions as
stated in Teague, we also find that Bousley is
not applicable. We do not believe in Fryer’s
situation that "the likelihood of an accurate
conviction [was] seriously diminished" without
the retroactive applicability of Old Chief. The
holding in Old Chief deals with a new rule of
criminal procedure and is not an interpretation
of the meaning of a congressional statute.

III.   Conclusion

  For the above-stated reasons, we find that
Fryer has not identified a new rule of
constitutional law made retroactive to cases on
collateral review. Accordingly, the district
court’s denial of the petition for writ of habeas
corpus is AFFIRMED.


/1 Fryer’s original habeas petition included several
issues in which he argued that his trial counsel
was constitutionally deficient. The district
court correctly determined that AEDPA’s time
limitations would not bar Fryer’s motion,
following Lindh v. Murphy, 96 F.3d 856, 865-66
(7th Cir. 1996) (en banc), rev’d on other grounds,
521 U.S. 320 (1997).

/2 The applicability of Old Chief was briefly
mentioned in a previous unpublished Seventh
Circuit opinion, Fisher v. Litscher, No. 00-2199,
2000 WL 1909746 (7th Cir. Dec. 29, 2000). The
panel did not analyze the Old Chief issue but
stated in a footnote, "[I]t does not appear that
Old Chief created a new rule of constitutional
law," and confined its analysis of ineffective
assistance of counsel to the standard established
in Strickland v. Washington, 466 U.S. 668 (1984).
Fisher, 2000 WL 1909746 at *2 n.1. Based upon the
lengthy analysis stated above, the holding in
Fryer contradicts the dicta in Fisher, even
though this does not affect the outcome in
Fisher. The panel in Fisher declined to apply Old
Chief retroactively, id., reaching the same
conclusion on that point as we do in this case.
