Thomas Gibbs v. John R. Van Natta

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-2246
T HOMAS G IBBS ,
Petitioner-Appellant,
v.
J OHN R. V AN N ATTA ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:00-CV-0471 AS—Allen Sharp, Judge.
____________
A RGUED A PRIL 14, 2003—D ECIDED M AY 21, 2003
____________
Before CUDAHY , P OSNER , and E ASTERBROOK , Circuit Judges.
P OSNER , Circuit Judge. Thomas Gibbs appeals from the
denial of his petition for federal habeas corpus. He had
been prosecuted in an Indiana state court in 1984 on 19
counts of burglary, 19 counts of theft (arising from the same
incidents), and in addition a count of being a habitual
offender because he “had accumulated two (2) prior unre-
lated felony convictions.” Ind. Code § 35-50-2-8. At his trial,
evidence of 39 other, unrelated burglaries was introduced
by the prosecution in an effort to establish Gibbs’s modus
operandi. He was not charged with those burglaries, but he
was convicted on all 39 counts with which he was charged

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2 No. 01-2246
(the 19 counts of burglary, the 19 counts of theft, and the
single count of being a habitual offender). He received a
heavy sentence—24 years for the 38 burglaries and thefts,
and another 30 years, to run consecutively to the 24-year
sentence, for being a habitual offender. He appealed, ar-
guing that the evidence of the 39 extraneous burglaries had
been unduly harmful to his defense against the burglary
and theft charges. He did not argue that the evidence had
hurt his defense against the charge of being a habitual
offender. The appellate court vacated 17 of the 19 burglary
convictions and 17 of the 19 associated theft convictions, but
upheld his conviction for being a habitual offender. He then
sought postconviction relief in the state courts, arguing that
his appellate counsel had been incompetent in failing to
argue that the evidence of the extraneous burglaries had
undermined his defense against the habitual-offender
charge as well. The courts turned him down, on the ground
that to prevail in a postconviction challenge to a conviction
for being a habitual offender the petitioner must prove that
he is not the one, and he cannot do an “end run” around
this rule by claiming that the counsel in his direct appeal
was incompetent. Gibbs v. Indiana, No. 48A02-9903-PC-
210, slip op. at 6 (Ind. Ct. App. Jan. 31, 2000); see Lingler v.
State, 644 N.E.2d 131, 133 (Ind. 1994).
In order to demonstrate that his federal constitutional
right to effective assistance of counsel was violated, a
defendant must show that effective assistance would have
given him a reasonable shot at acquittal. That is a differ-
ent and lower standard than having to prove that he was
in fact innocent of the charge. And so the ruling by the
Indiana state courts does not establish that Gibbs was
denied effective assistance of counsel, but only that he has
not proved that he was innocent of the habitual-offender
charge. Schlup v. Delo, 513 U.S. 298, 327 (1995); United States

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No. 01-2246 3
ex rel. Bell v. Pierson, 267 F.3d 544, 552 (7th Cir. 2001);
Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002). He could
not have proved that; the evidence that he had two
prior unrelated felonies was overwhelming and indeed is
uncontested. But this does not dispose of the ineffective-
assistance claim, as the Indiana courts erroneously ruled. A
criminal defendant is entitled to effective assistance of
counsel even if he can’t prove that he is innocent of the
crime with which he was charged, though he must show
that with effective assistance he would have had a shot at
acquittal. Nevertheless Gibbs is not entitled to relief in
the federal courts unless he can show that he was in fact
denied effective assistance of counsel, not merely that the
state courts bobbled the issue, Aleman v. Sternes, 320 F.3d
687, 690 (7th Cir. 2003); and let us turn to that question,
which pivots on the provision of the Indiana Constitution
that “in all criminal cases whatever, the jury shall have
the right to determine the law and the facts.” Ind. Const.
art. I, § 19.
This provision is not merely a bow to the inevitable—a
recognition that since acquittals are not appealable a jury
has the power to ignore, or as the cases say (rather too
dramatically) to “nullify,” the law under which the defen-
dant is being prosecuted. Only to the most uncompromis-
ing realist are power and authority synonyms. A jury does
not have the authority to disregard the law, and as a
result (a concrete consequence of the abstract distinction
between power and authority) a defendant’s lawyer is
not permitted to argue to the jury that it should disre-
gard the law; nor does the judge let on to the jury that it
has the power to acquit in the teeth of the law. Sparf v.
United States, 156 U.S. 51, 102 (1958); United States v. Bruce,
109 F.3d 323, 327 (7th Cir. 1997); United States v. Anderson,
716 F.2d 446, 449-50 (7th Cir. 1983); United States v. Manning,
79 F.3d 212, 219 (1st Cir. 1996); United States v. Dougherty,

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4 No. 01-2246
473 F.2d 1113, 1136-37 (D.C. Cir. 1972); Erick J. Haynie,
“Populism, Free Speech, and the Rule of Law: The ‘Fully
Informed’ Jury Movement and Its Implications,” 88 J. Crim
L. & Criminology 343, 354-57 (1997). But in Indiana the
jury has the authority, not to disregard the law, but to
disregard the interpretation of the law by judges; we know
this because juries in Indiana are instructed that, as the
judge instructed the jury in Gibbs’s case, “the Constitution
of Indiana provides that in all criminal cases whatsoever
the jury shall have the right to determine and construe
the law for yourselves although your determination may
differ from that stated by the Court in its instructions, but
in determining the law it is your sworn duty to determine
it correctly.” See Seay v. State, 698 N.E.2d 732 (Ind. 1998). In
effect the jury is given the same authority that a trial judge
has to interpret the law ( except that the jury’s interpretation
is unreviewable); but like a judge it must try to interpret
the law correctly.
This unusual grant of authority to Indiana juries opened
the door to Gibbs’s trial lawyer to argue—and he did
argue—that despite Gibbs’s two prior convictions the jury
should “not find my client an habitual offender. And you
can do that if you wish.” As the Indiana Supreme Court
said in the Seay case, “the jury in the habitual offender
proceeding is permitted to render a verdict that the de-
fendant is not a habitual offender even if it finds that the
State has proven beyond a reasonable doubt that the
defendant has accumulated two prior unrelated felonies.”
Id. at 734. But the jury was hardly likely to acquit with not
only the 39 extraneous burglaries staring them in the face
but also the 38 burglary and theft charges against Gibbs
which, although not prior unrelated felonies, certainly
suggested that he was a habitual offender. Gibbs’s appel-
late lawyer should not only have argued that the evidence
of the 39 extraneous burglaries had impaired his client’s
defense to the charge of being a habitual offender but also

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No. 01-2246 5
that if any of the 38 convictions were reversed the case
should be remanded so that the jury could consider the
habitual-offender charge free from the contamination of
invalid convictions as well as of inadmissible evidence.
In these circumstances there can be no doubt that Gibbs’s
appellate lawyer fell below the minimum level of compe-
tent representation of a criminal defender facing a 30-year
sentence as a habitual offender. The state’s argument that
the lawyer had no duty to challenge the habitual-offender
conviction because the prosecution had Gibbs cold—the
proof of the two unrelated prior felonies being uncon-
tested—falls flat given the interpretive latitude that Indiana
vests in the jury. It is true that the jury is supposed to
interpret the law rather than to change it; but if it were
asked to interpret the habitual-offender statute to allow
leniency in a case in which the circumstances suggested
that the defendant’s prior unrelated felony convictions
were not indicative of habitual criminality, this would not
be so great a stretch that the judge would or could properly
forbid the defendant’s lawyer to make the argument.
Gibbs’s lawyer did argue for leniency and the prosecution
did not object or the judge rule the argument out of order.
But the lawyer’s hands were tied, for the jury had just found
his client guilty of 38 counts of burglary and theft and had
heard evidence of 39 more burglaries.
All this said, we do not think that Gibbs has shown
sufficient likelihood that with competent representation
he would have beaten the habitual-offender rap to warrant
further proceedings. Supposing that a competent lawyer
would have gotten him a new hearing in which there
would have been no reference to either the 34 counts of
burglary and theft that had been thrown out or the 39 un-
charged burglaries, Gibbs has failed to point to anything
that would have enabled him to climb the steep hill looming

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6 No. 01-2246
before him. The habitual-offender statute states that if you
have two prior unrelated felonies, you’re a habitual of-
fender. Period. And he had. And the jury is supposed
to interpret the law rather than change it. To have a reason-
able chance of getting the jury to find that exceptional
circumstances warrant an adventurous interpretation of the
statute that would depart from its literal terms in the
direction of lenity, you must have—exceptional circum-
stances. None is suggested. Compare those cases in which,
to show that with competent representation a capital
defendant would not have been sentenced to death, the
defendant in postconviction proceedings retains a “mitiga-
tion specialist” who gathers the evidence that the lawyer at
the sentencing hearing should have presented, to show
that such evidence existed. E.g., Emerson v. Gramley, 91
F.3d 898, 907 (7th Cir. 1996); Brewer v. Aiken, 935 F.2d 850,
857-58 (7th Cir. 1991); Mason v. Mitchell, 320 F.3d 604, 622-23
(6th Cir. 2003). No evidence of exceptional circumstances
has been presented in this case. If it had been, moreover,
the cases that we have just cited indicate that the prosecu-
tion would have been free to counter Gibbs’s evidence
with the 39 extraneous burglaries, for they would furnish
a reason for the jury to exercise its interpretive discre-
tion against leniency.
Evidence of exceptional circumstances was not the only
missing link in an appeal to article I, section 19 of the
Indiana Constitution. The lawyer failed to lay out an
interpretive path from the particular circumstances of the
case to a conclusion that, despite the wording of the
habitual-offender statute, the statute could be interpreted
to let off his client. The distinction between merely assert-
ing a conclusion and reaching it by interpretation is famil-
iar from administrative law, where an agency’s authority
to interpret a statute or regulation requires that it employ
a methodology fairly describable as interpretive rather

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No. 01-2246 7
than merely assertive. E.g., Hoctor v. U.S. Dept. of Agricul-
ture, 82 F.3d 165, 170-71 (7th Cir. 1996). The failure of
Gibbs’s lawyer to find an interpretive route to the de-
sired conclusion may seem just another strike against his
competence; but even his present lawyer cannot find a
route. There appear to be no facts that would justify an
interpretation of the habitual-offender statute that would
acquit Gibbs, whatever might be the case for some
others accused of being habitual offenders.
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-21-03

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