Joseph L. Trueblood v. Cecil Davis

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 01-3281 and 01-3282
J OSEPH L. T RUEBLOOD ,
Petitioner-Appellee,
Cross-Appellant,
v.
C ECIL D AVIS ,
Respondent-Appellant,
Cross-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 00 C 125—Allen Sharp, Judge.
____________
A RGUED A PRIL 24, 2002—D ECIDED A UGUST 20, 2002
____________
Before P OSNER , R IPPLE , and E VANS , Circuit Judges.
P OSNER , Circuit Judge. The petitioner was sentenced
to death and after exhausting his state remedies, see
Trueblood v. State, 587 N.E.2d 105 (Ind. 1992), 715 N.E.2d
1242 (Ind. 1999), sought and obtained federal habeas cor-
pus. Trueblood v. Anderson, 156 F. Supp. 2d 1056 (N.D. Ind.
2001). His state custodian appeals.
Upset that his former girlfriend was planning to return
to her ex-husband, the petitioner took a gun from his
parents’ house, picked up the woman and her two children,

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2 Nos. 01-3281, 01-3282
who were aged two and a half years and 17 months respec-
tively, in his automobile, shot all three in the head, kill-
ing them, then borrowed a shovel from his brother and
buried his three victims in a secluded spot. Charged in
an Indiana state court with all three murders, he pleaded
guilty to murdering the mother but decided to stand trial
for the murder of the children. The theory of the defense
was that the mother had shot her children and that he
then at her request had killed her, a kind of mercy killing.
The strategy collapsed when his brother took the stand
and testified that the petitioner had confessed all three
murders to him. The petitioner then interrupted the trial
and pleaded guilty to murdering the children; he did this
in order to avoid a jury recommendation of the death
penalty. The judge nevertheless sentenced him to death,
as he was authorized by Indiana’s death-penalty law to do,
Ind. Code § 35-50-2-9(d) (“if the trial was to the court, or
the judgment was entered on a guilty plea, the court alone
shall conduct the sentencing hearing”); Smith v. State, 686
N.E.2d 1264, 1271 n. 3 (Ind. 1997), upon a finding of one or
more statutory aggravating circumstances. The judge found
two—murder of more than one person and a victim (in fact
two victims) under the age of 12. Ind. Code §§ 35-50-2-
9(b)(8), (12); Stevens v. State, 691 N.E.2d 412, 432-33 (Ind.
1997); Holmes v. State, 671 N.E.2d 841, 852 (Ind. 1996);
Harrison v. State, 659 N.E.2d 480, 481-82 (Ind. 1995);
Trueblood v. State, supra, 587 N.E.2d at 111 and n. 7. The
federal district judge in the habeas corpus proceeding
rejected some of the petitioner’s challenges to the sentence,
precipitating a cross-appeal by him. There was no need for
the petitioner to file a cross-appeal, since he was not seeking
to alter the judgment but merely defending it on addition-
al grounds.
The district judge based his grant of relief on a deter-
mination that the Indiana courts had in three respects

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Nos. 01-3281, 01-3282 3
unreasonably applied U.S. Supreme Court precedent,
which is the statutory standard for habeas corpus for state
prisoners. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529
U.S. 362, 409, 412 (2000); Rastafari v. Anderson, 278 F.3d
673, 688 (7th Cir. 2002). The first involved the failure of
the state trial judge to inform the petitioner explicitly that
by pleading guilt to the murder of the mother he was
acknowledging the existence of an aggravating circumstance
(namely an additional murder victim) if he was later
convicted of murdering either or both of the children and
the state sought, as undoubtedly it would, and as in fact
it did, the death penalty.
Due process as interpreted by the Supreme Court re-
quires that a defendant be advised of the consequences
of pleading guilty. Mabry v. Johnson, 467 U.S. 504, 509
(1984); Brady v. United States, 397 U.S. 742, 755 (1970). Not
necessarily all the consequences, such as loss of the right
to vote or of the right to own a gun, or the effect on fu-
ture sentences, Lewis v. United States, 902 F.2d 576,
577 (7th Cir. 1990); United States v. George, 869 F.2d 333,
337 (7th Cir. 1989); United States v. Edwards, 911 F.2d 1031,
1035 (5th Cir. 1990); United States v. Del Rosario, 902 F.2d 55,
59 (D.C. Cir. 1990), but certainly the maximum punish-
ment that he faces if he is convicted in the case at hand.
United States v. Lumpkins, 845 F.2d 1444, 1449 (7th Cir.
1988); Lewellyn v. Wainwright, 593 F.2d 15, 17 (5th Cir. 1979)
(per curiam).
The petitioner in our case was told that he might be
sentenced to death for the murder of the children. See
Thomas v. United States, 27 F.3d 321, 325 (8th Cir. 1994); King
v. Dutton, 17 F.3d 151, 154 (6th Cir. 1994). What he was
not told was that his conviction (pursuant to his plea of
guilty) of the murder of the mother would be an aggravat-
ing circumstance if he were convicted of murdering the

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4 Nos. 01-3281, 01-3282
children as well and the death penalty were sought for
those murders. But the only case we have found that
decides whether a defendant’s guilty plea was invol-
untary because he was not informed that the state could
use the resulting conviction as an aggravating circum-
stance in the sentencing for an unrelated but pending
murder charge holds that the plea is not involuntary. King
v. Dutton, supra, 17 F.3d at 152-55.
No decision by the U.S. Supreme Court casts doubt on
the soundness of King, and it is applicable with partic-
ular force here because the petitioner could not have
suffered any prejudice from his plea, making its conse-
quences for his sentence for the other murders academ-
ic. It is not, so far as matters in this case at any rate, a
guilty plea or even a conviction that makes a murder an
aggravating circumstance; it is the fact that the crime was
committed. Ind. Code § 35-50-2-9(b)(8); Wrinkles v. State, 749
N.E.2d 1179, 1186 n. 2 (Ind. 2001); Hough v. State, 560 N.E.2d
511, 519 (Ind. 1990); see Townsend v. State, 533 N.E.2d 1215,
1227 (Ind. 1989). (A murder conviction is a separate aggra-
vating circumstance under the Indiana statute. Ind. Code
§ 35-50-2-9(b)(7).) And not only did the petitioner admit to
killing the mother; it was the centerpiece of his defense to
the charge of his having killed the children. Since mercy
killing is murder, he was admitting to murder and the
admission would have been used at his sentencing hearing
regardless of whether he had pleaded guilty or been
convicted by a jury. He very much wanted to avoid having
his guilt determined by the jury because a jury would be
highly likely to recommend the death penalty, given the
number and nature of his victims and his conduct after-
wards. We cannot imagine what elaboration by the judge of
the possible consequences of a guilty plea to the murder of
the mother would have induced the petitioner to refuse to
plead and instead take his chances with the jury.

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Nos. 01-3281, 01-3282 5
By the same token we cannot understand how it might
be thought either to show a want of professional compe-
tence, or to have been prejudicial to the petitioner, that
his lawyer did not advise him to refuse to plead guilty
and instead stand trial. So his claim of ineffective assis-
tance fails as well.
We also reject the district judge’s conclusion that re-
marks by the state trial judge at sentencing show he based
the death sentence in part on aggravating circumstances
that, not being found in the Indiana death-penalty statute,
were improper. Sochor v. Florida, 504 U.S. 527, 532 (1992);
Clemons v. Mississippi, 494 U.S. 738, 751-52 (1990); Hough
v. Anderson, 272 F.3d 878, 905-07 (7th Cir. 2001). The trial
judge described the petitioner’s crimes as cold-blooded
and the victims as helpless, and neither the cold-blooded
character of a murder nor the helpless character of the
victims is an aggravating circumstance under the Indi-
ana statute. But the murders were cold-blooded and the
victims helpless. The judge was making an observation
about the crimes that was not only true but inescapable.
So in effect the petitioner is contending that if the sen-
tencing judge does more than recite statutory language, the
sentence must be vacated on the ground that it was
based on improper factors. We disagree. The judge’s
responsibility was not exhausted in identifying the pres-
ence of one or more of the statute’s aggravating and miti-
gating circumstances. He not only had to balance them,
since he could not impose the death sentence if the ag-
gravating circumstances did not outweigh the mitigat-
ing ones; but he had to decide whether to exercise the
discretion granted him by the statute not to impose the
death penalty even if the aggravating circumstances did
outweigh the mitigating ones. Ind. Code §§ 35-50-2-9(e),
(k)(2); Bivins v. State, 642 N.E.2d 928, 946 (Ind. 1994); Miller

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6 Nos. 01-3281, 01-3282
v. State, 623 N.E.2d 403, 409 (Ind. 1993). Bivins and Miller
are cases in which the jury was the sentencer, but when
the judge is, as in this case, he must make the same analy-
sis. Ind. Code §§ 35-50-2-9(g), (k).
It was after the judge had found the existence of statutory
aggravating circumstances, and had turned to the ques-
tion whether they outweighed the mitigating circumstances,
that he made the remarks in question; and they were ger-
mane to that purpose. They showed why the judge thought
the balance inclined as it did and why he thought the
case inappropriate for an exercise of mercy. They thus
promoted the transparency of the sentencing process. It
would be unfortunate if judges were forced to clam up at
sentencing because any comments they made about the
nature of the defendant’s crime that did not pertain di-
rectly to a statutory aggravating or mitigating circum-
stance required resentencing. Such clamming up is not
required by the Eighth Amendment and it would violate
Indiana law. “The trial court must find that any mitigat-
ing circumstances that exist are outweighed by the ag-
gravating circumstance or circumstances. This evaluating
and weighing process should be described in the trial
court’s sentencing statement.” Roark v. State, 644 N.E.2d
565, 570 (Ind. 1994) (citations omitted); see also Holmes
v. State, supra, 671 N.E.2d at 852; Evans v. State, 563
N.E.2d 1251, 1254-55 (Ind. 1990).
We are mindful that in Wright v. Walls, 288 F.3d 937, 942-
46 (7th Cir. 2002), a divided panel of this court recently
interpreted the remarks of the sentencing judge in that
death case to exclude the possibility that he was comply-
ing with state and federal law. The dissenting judge in
our court argued that federalism required a presumption
against interpreting the sentencing judge’s remarks as
being gounded in a misunderstanding of the applicable

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Nos. 01-3281, 01-3282 7
legal principles, state and federal, and expressed an under-
standable concern about the pitfalls of literal interpreta-
tion of oral remarks made by a judge at sentencing. The
clamming-up danger was real. But whatever the merits
or demerits of Wright, it does not dictate the outcome
of this case. No fair reading of the sentencing judge’s re-
marks suggests a misunderstanding of state or federal law.
Turning to the petitioner’s cross-appeal, we find only
one issue that merits discussion. It is whether the peti-
tioner’s trial counsel failed in his duty of effective assis-
tance by failing to accompany the petitioner to the
presentence interview by the probation officer assigned
to the case; at that interview the petitioner repeated his
denial of having murdered the children, despite his having
pleaded guilty to those murders too.
The issue of whether the lawyer’s absence from the
interview constituted ineffective assistance of counsel was
almost certainly waived in the state court system and in
any event has no merit. The lawyer’s presence could not
have made any difference to his client’s ultimate fate. Even
if the lawyer would have prevented him from making
an undoubtedly perjurious denial, we cannot imagine
what difference that could have made in the sentence.
Perjury was the least of the petitioner’s crimes, and there
is no basis for thinking it weighed in the judge’s decision
to sentence him to death.
After the argument of this appeal, the Supreme Court
decided Ring v. Arizona, 122 S. Ct. 2428 (2002), holding
that capital defendants are entitled to a jury determination
of any fact, such as the existence of a mitigating or aggravat-
ing factor, that constitutes a legislatively ordained con-
dition of capital punishment. The parties agree that we
cannot consider Ring in deciding this appeal because the
Supreme Court has not yet held it to be retroactive. See
Tyler v. Cain, 533 U.S. 656, 662-64 (2001).

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8 Nos. 01-3281, 01-3282
For the reasons stated earlier, the petition for habeas
corpus should have been denied.
R EVERSED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—8-20-02

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