Darrell D. Cage v. GARY R. M C CAUGHTRY , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3245
D ARRELL D. C AGE ,
Petitioner-Appellant,
v.
G ARY R. M C C AUGHTRY , Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 98-C-927—Thomas J. Curran, Judge.
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A RGUED A UGUST 6, 2002—D ECIDED S EPTEMBER 6, 2002
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Before POSNER, E ASTERBROOK, and M ANION , Circuit Judges.
P OSNER , Circuit Judge. The petitioner was found guilty
of murder by a Wisconsin state court and sentenced to life
imprisonment, and after exhausting his state remedies
sought federal habeas corpus unsuccessfully, complain-
ing about the fact that the judge at his trial had failed to
remove a juror who he claims was prejudiced against him.
At the jury voir dire, several prospective jurors, includ-
ing one named Werth, said they had read about the crime
in the newspaper, Werth stating that it had caught his at-
tention because it had occurred “pretty close” to his home.
When asked by the judge whether he’d be able to decide

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2 No. 01-3245
the case on the basis of the evidence at trial rather than
what he’d read about in the newspaper, Werth said: “The
feller used a handgun. I’m dead set against that. I really
don’t think I could be impartial.” The judge asked the pros-
ecutor whether he intended to introduce evidence about
a handgun. The prosecutor replied that the victim had been
stabbed to death; no gun had been used. The judge asked
Werth whether that would “cause you to think that you
might have been recalling a different case than this or are
you pretty sure this was the case?” To which Werth replied
he wasn’t “real sure” but may have confused the crime
with which the petitioner was charged with another crime.
The judge then asked Werth whether he could “put that
[what he had read in the newspaper] aside and decide
the best at trial,” and Werth said: “I can try.”
The petitioner’s lawyer didn’t ask that Werth be struck
from the venire; nor did the prosecutor, and so Werth
became a member of the jury that convicted the petitioner,
who claims that his lawyer rendered ineffective assis-
tance of counsel by not moving that Werth be removed from
the jury for cause.
The district judge refused to grant a certificate of
appealability, but we granted one, limited however to
the question “whether [the petitioner] was denied his
constitutional right to an impartial jury by the seating of
a juror who provided potentially equivocal assurances
of impartiality during voir dire.” This amounts to asking
whether the judge has an obligation to dismiss a juror for
cause even if no lawyer objects. In certifying this as an
appealable question, we erred. The Supreme Court has
never announced such a rule, and so it is not a ground upon
which a state prisoner can obtain relief in a federal habeas
corpus proceeding. 28 U.S.C. § 2254(d)(1); Schaff v. Snyder,
190 F.3d 513, 522 (7th Cir. 1999). The absence of a case in the

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No. 01-3245 3
Supreme Court (or any other court, as far as we know)
declaring such a rule is not surprising. There is nothing
suspicious about a lawyer’s refusing to strike a prospective
juror for cause. The lawyer might feel that on balance the
juror was more likely to vote for than against his client.
In the hearing conducted in the district court on the peti-
tioner’s claim of ineffective assistance, his trial lawyer
explained that he had thought that Werth was trying to get
off having to serve on the jury, and that if he were left on
against his will he would blame the government, which
had instituted the case, and therefore be inclined to vote for
an acquittal. Correct or not, this is the kind of reasoning
that a criminal defendant wants his lawyer to engage in. A
rule requiring the judge to exercise all challenges for cause
would not serve criminal defendants and is hardly a plau-
sible interpretation of the Sixth Amendment, see United
States v. Simmons, 961 F.2d 183, 184-86 (11th Cir. 1992) (per
curiam); cf. United States v. Ferri, 778 F.2d 985, 994 (3d Cir.
1985), let alone one endorsed by any decision of the Su-
preme Court.
When we make a mistake and issue a certificate of
appealability that specifies an improper ground, counsel
for both sides, rather than indulging a fiction of judi-
cial infallibility, should inform us before briefing begins
and ask us to amend the certificate, which is within our
power because even an “unfounded” certificate of appeal-
ability confers jurisdiction on us. United States v. Marcello,
212 F.3d 1005, 1008 (7th Cir. 2000); Young v. United States,
124 F.3d 794, 799 (7th Cir. 1997); Soto v. United States, 185
F.3d 48, 52-53 (2d Cir. 1999). Appellate judges issue these
certificates after only brief study of the case; the lawyers
have spent much more time on the dispute and thus
are well positioned to call errors to our attention. That was
not done, and the lawyers dutifully argued the question
posed in our certificate. Both parties, however, prudently

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4 No. 01-3245
argued the real issue as well, that of ineffective assistance
(though Cage’s lawyer did not get around to doing so until
the oral argument), and we hereby amend the certificate
to make that the issue on which an appeal was warranted.
Turning to that issue, we can be brief. The district court
was correct in turning down the petitioner’s claim of
ineffective assistance. His lawyer had a tactical reason for
his action, and it was not so far off the wall that we can
refuse the usual deference that we give tactical decisions
by counsel to waive a right of his client that he thinks
would if asserted reduce the likelihood of the client’s be-
ing acquitted. For cases, similar to this case, so holding,
see, e.g., Miller v. Francis, 269 F.3d 609, 620 (6th Cir. 2001);
Hale v. Gibson, 227 F.3d 1298, 1319-20 (10th Cir. 2000); Knox
v. Johnson, 224 F.3d 470, 479 (5th Cir. 2000).
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-6-02

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