author: HAMILTON, Circuit Judge

text:
    Chris P. LANE, Plaintiff-Appellant, v. RIVERVIEW HOSPITAL, Defendant-Appellee.
    No. 15-1118
    United States Court of Appeals, Seventh Circuit.
    Argued June 10, 2015
    Decided August 26, 2016

      Ryan Patrick Sink, Attorney, Fox, Williams & Sink, LLC, Indianapolis, IN, for Plaintiff-Appellant.
    Andrew Woodbridge Hull, Laurie E. Martin, Attorneys, Hoover Hull Turner LLC, Indianapolis, IN, for Defendant-Ap-pellee.
    Before MANION, WILLIAMS, and HAMILTON, Circuit Judges.
   HAMILTON, Circuit Judge

Plaintiff Chris Lane sued Riverview Hospital, his former employer, for race discrimination in terminating his employment as a security guard at the hospital. The district court granted summary judgment for the defendant. We affirm.

We review a grant of summary judgment de novo, and we give the non-moving party the benefit of conflicts in the evidence and of any inferences in his favor that might reasonably be drawn from the evidence. See Mintz v. Caterpillar Inc., 788 F.3d 673, 679 (7th Cir. 2015). Our account of the facts is filtered through that summary judgment lens.

Lane is African American and began working as a security guard at Riverview Hospital in 1999. He had a successful employment record at the hospital, without any formal discipline until the event at the center of this lawsuit.

In August 2012, a 17-year-old male autistic patient started hitting, swinging at, and kicking his caregivers. The situation had gotten so far out of hand that the health care professionals were afraid to approach the young man or'to enter the room. A nurse summoned security.

Lane responded and entered the room. He saw the patient kick one of the staff in the back. Lane then tried to restrain the patient, who tried to bite him and then spit in Lane’s mouth. As the patient prepared to spit again, Lane slapped him in the face with his open palm, making “solid contact.” The patient settled down and stopped swinging and kicking at Lane and the health care professionals in the room.

After the incident, Lane completed a written report for the hospital explaining why he thought the slap was justified under the circumstances. He also filed a report with the Sheriffs Department, where he had status as a special deputy as a condition of his work for the hospital. The recipients of these reports concluded he had shown poor judgment and had overreacted without trying less violent steps to gain control of the situation. The Sheriffs Department actually sought to file a criminal assault charge against Lane, but the prosecutor declined to bring a charge.

At the hospital, the outcome was different. Ann Kuzee, the hospital’s director of human resources, also investigated the incident. Kuzee reviews and enforces River-view’s rules, policies, and procedures, and she becomes involved any time a supervisor proposes to discipline or fire an employee who is not a physician. Kuzee does not have the final say in whether to fire an employee. Her recommendations are presented to the Executive Steering Committee for decision.

After confirming with Lane that he had in fact slapped the patient, Kuzee recommended that his employment be terminated. The hospital has a policy on restraints that prohibits “any form of restraint that is not medically necessary or is used as a means of coercion, discipline, convenience, or retaliation by staff,” and another policy prohibits acts or threats of violence. The Executive Steering Committee approved Kuzee’s recommendation on the condition that she consult the Sheriffs Department about whether the force used by Lane, a deputized officer, was appropriate. A major at the Sheriffs Department told Kuzee that he thought Lane’s slap was not an appropriate use of force for the situation.

The hospital told Lane that if he did not resign, he would be fired. He chose to resign a few days later. The district court treated the situation as a constructive discharge, and that point is not at issue in the appeal.

After exhausting administrative remedies through a complaint to the Equal Employment Opportunity Commission, Lane filed suit for race discrimination in employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. § 1981. We analyze Title VII and § 1981 claims under the same framework. E.g., Whitfield v. Int’l Truck & Engine Corp., 755 F.3d 438, 442 (7th Cir. 2014).

If that were the entire story, we would have an employer’s disciplinary decision that would be well within an employer’s discretion to make. The question is whether Lane offered enough additional evidence to permit a reasonable inference of race discrimination in the decision.

Plaintiff Lane does not rely on the McDonnell Douglas indirect method of proof or any of its variations. See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). He also does not have evidence directly indicating that Kuzee or any other decision-maker was motivated by racial animus. He tries instead to put together what we have often called a “convincing mosaic” of circumstantial evidence to support an inference of discrimination. See Castro v. DeVry Univ., Inc., 786 F.3d 559, 564 (7th Cir. 2015); Hutt v. AbbVie Products LLC, 757 F.3d 687, 691 (7th Cir. 2014); Perez v. Thorntons, Inc., 731 F.3d 699, 703 (7th Cir. 2013); see also Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring) (suggesting that courts avoid unduly formal methods of analyzing discrimination and focus instead on whether circumstances could permit inference of discrimination). The phrase “convincing mosaic” is not a legal test but a metaphor. It describes a case built on circumstantial evidence, in this case about the reasons for the hospital’s decision to fire Lane. The core issue is whether Lane has offered evidence that would allow a reasonable jury to infer that he would not have been fired if he were not African American and everything else remained the same. See Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900, 903-04 (7th Cir. 2006); Achor v. Riverside Golf Club, 117 F.3d 339, 341 (7th Cir. 1997).

Lane relies on four incidents to support an inference of race discrimination: an arguably similar incident involving a white nurse; Kuzee’s factually incorrect response to the EEOC about her knowledge of that earlier incident; and one comment and one question by Kuzee about race.

First, Lane compares his slap of the autistic patient to another incident involving nurse Matt Rainey, who was not disciplined at all, let alone fired. Rainey was assigned to a young girl brought to the emergency room in February 2011. The girl’s mother, Jessi Arreola, argued with Rainey about his treatmént of her daughter. As Rainey was leaving the room, Arreola tried to follow him out. Rainey was closing the door behind him when Arreola grabbed the handle to keep him from closing her in the room.

At this point the accounts diverge. According to Arreola, Rainey then started to slam the door, attempting to trap her inside the room, after he had “slapped” away her arm in a “karate style action” as she was grabbing for the handle. Two onlookers reported, however, that Rainey had tried to remove Arreola’s hand without using any force.

Ramey’s immediate supervisors investigated the incident. They credited Rainey and the two onlookers over Arreola and concluded that Rainey had not slapped her or violated any hospital rule. The supervisors told Kuzee over the telephone about the incident, and they later concluded that Rainey should not be disciplined. Kuzee reviewed and edited the email the supervisors sent to Rainey informing him he would not be disciplined. She. also was aware that Arreola had filed a police report complaining about Rainey.

Under any mode of analysis for a discrimination case, evidence that the employer treated better a similarly situated employee outside the plaintiffs protected class can provide some circumstantial evidence of discrimination. Whether employees are similarly situated is a flexible inquiry. See Coleman, 667 F.3d at 841; Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007), aff'd, 553 U.S. 442, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008). The basic question is whether the situations are similar enough, apart from the employees’ races, to provide support for a reasonable inference of discrimination. Arguments about the closeness of the'“fit” between comparisons will often present questions for trial rather than for summary judgment. See, e.g., Coleman, 667 F.3d at 846-47 (reversing summary judgment); Humphries, 474 F.3d at 405 (same); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (same).

Lane and Rainey had different jobs and responsibilities, but as the district court recognized, both were subject to the same hospital policies against violence and use of restraints to coerce patients. See Coleman, 667 F.3d at 847-48 (reversing summary judgment; allowing comparison of employees with different jobs and supervisors where same senior manager was responsible for deciding how to enforce same policy on violence against all employees).

The district court concluded that the Rainey incident does not offer a probative comparison because different people made the decisions, first not to discipline Rainey and then to fire Lane. For purposes of summary judgment, though, this difference is disputed as a matter of fact. It is true that Kuzee did not investigate the Rainey matter herself or make the initial call on discipline, but she was at least informed about the decision/recommendation not to discipline him. If she had disagreed, she had the authority to step in and push for a different response. A reasonable jury could treat her as involved sufficiently in both cases to allow a fair comparison. See Orton-Bell v. Indiana, 759 F.3d 768, 777 (7th Cir. 2014) (concluding that employees with different immediate supervisors and in different “chains of command” were similarly situated when same person fired both); Perez, 731 F.3d at 707-08 (rejecting argument that employees were not comparators because they had different “nominal” supervisors when both supervisors were involved in reviewing employees’ incidents and acted in concert).

The problem for Lane is a more fundamental and undisputed difference between the two incidents from the perspective of the common decision-maker, Kuzee, which is the relevant perspective. Lane admitted that he slapped the patient. Rainey denied striking Arreola, and the hospital supervisors who investigated the incident credited his account, as backed up by other witnesses. The accusation against Rainey was similar to that against Lane, but from Kuzee’s perspective, the undisputed facts show, she thought that Rainey actually did nothing wrong. Lane admitted to conduct — the slap in the face — that Kuzee viewed as a serious violation of important hospital policies to protect vulnerable pa-tiente. The Rainey incident is not similar enough to support an inference of discrimination.

Lane’s next point stems from the EEOC proceedings after Lane filed a charge of discrimination in which he compared his treatment to Rainey’s. The hospital’s response, which Kuzee reviewed and approved, asserted that Kuzee had not known about the accusation against Rainey until after she received Lane’s charge of discrimination. Lane has offered evidence that Kuzee in fact had known about the Rainey incident when she acted to fire Lane. Kuzee had received a telephone call from Rainey’s supervisors who investigated the incident, and she helped edit an email about the Rainey incident. She was also aware that a police report had been filed.

Lane argues that Kuzee lied to the EEOC about a material fact and that the lie supports an inference of illegal discrimination. Kuzee and the hospital argue that her involvement in the Rainey incident was so minimal that the response to the EEOC was just honestly mistaken on this point. The district judge concluded that Kuzee’s misrepresentation was an understandable error and that Lane had presented no other evidence to show the misrepresentation was deliberate.

It has long been established that an employer’s dishonesty in defending or explaining an employment decision can support an inference of illegal discrimination. See St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). When an employer’s response is factually wrong in a self-serving way on a material fact, the choice between treating it as an honest mistake or a deliberate falsehood is ordinarily a choice for a jury at trial, not for summary judgment. See Castro, 786 F.3d at 574; Testerman v. EDS Technical Products Corp., 98 F.3d 297, 303 (7th Cir. 1996). And an assertion that a decision-maker was not aware of the comparator identified by a complaining party can be important, even decisive. If the supposedly common decision-maker was not even aware of the comparator, then a court cannot infer intentional discrimination from the different treatment.

If there were more substance to the Rainey comparison here, we would find a jury issue here, as well. But the two inferential steps go too far here. To go from this factual discrepancy to an inference of racial bias, a jury would have to conclude first that the discrepancy was the result of a deliberate decision to mislead the EEOC and second that the motive of the deliberate decision to mislead was to conceal unlawful race discrimination. Without further circumstantial evidence of unlawful discrimination, a reasonable jury could not take that step. (The issue here is familiar as the pretext element of the McDonnell Douglas framework for circumstantial evidence. See Castro, 786 F.3d at 574; McInnis v. Alamo Community College Dist., 207 F.3d 276, 283 (5th Cir. 2000). Even under that framework, such evidence of pretext is not enough by itself to prove discrimination; it becomes a factor only after the plaintiff has shown other circumstances corroborating unlawful intent, including evidence that a similarly situated employee outside the plaintiffs protected class was treated better. That additional evidence is missing here.) Even if we assume that Kuzee and the hospital deliberately misled the EEOC about her role in the Rainey incident, that would not by itself support the further inference of unlawful intent. And the rest of the support here is just too weak to allow a reasonable inference of discrimination.

Lane also relies on evidence of one comment and one question by Kuzee relating to race to support an inference that she discriminated against him based on race. Kuzee made the first of the remarks after the February 2011 incident involving Rainey and before the August 2012 incident with Lane. In January 2012 a white security guard at the hospital had accused an African American guard of theft. The white guard recalled later that Kuzee reacted to the accusation by saying that she “did not want any trouble” because the other guard “was black.”

Kuzee’s second remark came in her meeting with Lane about the incident with the autistic patient. Lane mentioned a previous encounter when the same patient had yelled a highly offensive racial slur at him. Later during that same conversation, in explaining his reaction to being spat upon, Lane told Kuzee how his brother had reacted when a person had spit on him when he was younger. Kuzee asked Lane about the race of the boy who had spit on his brother.

Neither of these comments reflects racial animus. The district judge found that neither remark could support a reasonable inference of discrimination. The first comment came about eight months before Lane’s firing and did not refer to or involve him in any way. If that comment by a decision-maker had shown racial animus, it would be difficult to hold unreasonable an inference of racial animus eight months later. See Perez v. Thorntons Inc., 731 F.3d 699, 710 (7th Cir. 2013) (comparing logic of “stray remarks” cases to logic of “same actor inference”). But a human resources manager’s non-hostile remark that merely acknowledged the potential for race to become an issue in an unrelated incident simply does not support that inference.

The second remark, Kuzee’s question, was tied directly to this decision and came from a key decision-maker. It does not, however, support an inference of intentional race discrimination. Kuzee’s job was to find out what happened. As the district judge pointed out, Kuzee asked the question only after Lane himself told her about the patient’s use of a vile racial epithet against him on an earlier occasion and about his own brother’s experience. Kuzee did not exhibit racial bias by asking a question about why Lane had brought up the story about his brother.

Finally, viewing all of the evidence together, we still find no error in the grant of summary judgment. The undisputed facts show that Lane intentionally struck a patient. Reasonable managers could disagree about the proper response for the hospital, but termination was certainly one reasonable response. Lane’s effort to put together a mosaic of circumstantial evidence of race discrimination simply does not hold together sufficiently to present a genuine issue of material fact, even when we give him the benefit of conflicts in the evidence and reasonable inference in his favor. A jury could not reasonably find that Riverview discriminated on the basis of race when it decided to fire Lane. The judgment of the district court is

AFFIRMED.


source: Caselaw Access Project

author: WOOD, Chief Judge

license: Public Domain

text:
    Roy L. WARD, Petitioner-Appellant, v. Ron NEAL, Superintendent, Indiana State Prison, Respondent-Appellee.
    No. 16-1001
    United States Court of Appeals, Seventh Circuit.
    Argued August 18, 2016
    Decided August 26, 2016
    Rehearing and Rehearing En Banc Denied Oct. 11, 2016.

      Marie F. Donnelly, Attorney, Evanston, IL, Laurence E. Komp, Attorney, Manchester, MO, for Petitioner-Appellant.
    Andrew A. Kobe, James Blaine Martin, Attorneys, Office of the Attorney General, Indianapolis, IN, RespondenL-Appellee.
    Before WOOD, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.
   WOOD, Chief Judge

Roy L. Ward is under a sentence of death for the brutal murder of Stacy Payne, just 15 years old at the time of the crime. He pleaded guilty to the charge at his second trial; a jury recommended death; and the trial court sentenced him accordingly. His conviction and sentence have passed muster through all the appropriate stages of review in the state courts, and the district court found no reason to disturb their conclusions when Ward sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254. His primary ground for relief, and the only theory he pursues on appeal, is that his trial counsel rendered constitutionally ineffective assistance when they portrayed him as a dangerous, incurable “psychopath” to the jury, and that this failing is enough to undermine confidence in the sentence. We conclude, however, that the Indiana Supreme Court’s decision that Ward suffered no prejudice from counsel’s shortcomings was reasonable. This is enough to require us to affirm the district court’s judgment denying the petition for a writ of habeas corpus.

I

We will be brief with the underlying facts, as most of them are not disputed and they are horrifying. Shortly after noon on July 11, 2001, 15-year-old Stacy Payne opened the front door of her home in Dale, Indiana, and found a stranger — Ward— ostensibly looking for a lost dog. Ward was lying. Shortly after Stacy let him in, her sister Melissa, who had been upstairs taking a nap, woke to the sound of screams. Looking down from the top of the stairs, she saw Stacy on the ground with a man on top of her. Stacy was screaming as the man assaulted her. Melissa promptly went to her parents’ room and called 911; police arrived about ten minutes later.

Dale Town Marshal Matt Keller was the first to enter the house. He saw Ward standing near the door with a knife in his hand, sweating. Keller immediately took Ward into custody, moved Ward outside, and went back into the house. There he saw Stacy lying in a huge pool of blood in the kitchen, disemboweled, evidently raped, trying to speak. Keller watched over her while he waited for an ambulance. The Emergency Medical Technicians did what they could to stabilize her for transport and took her to a local hospital, from which she was later moved by helicopter to a Level One trauma center in Louisville. Doctors there tried to save her, but to no avail; she died approximately four or five hours after the attack. Although her wounds were awful — her throat was severed to the back of her windpipe, her midsection was almost completely cut apart, and her left hand had been slashed to the bone — she was still able for some time to communicate with the nurses by squeezing her hand. '

There was never any doubt that Ward was the person who had murdered Stacy so violently. The proceedings focused instead on the penalty that he should receive. He was first indicted and tried on capital charges in Spencer County, Indiana, where Dale is located. Ward’s attorneys at this trial tried through the use of mitigating evidence to convince the jury that death was not appropriate. They introduced evidence of Ward’s troubled upbringing, his difficulties in school, his psychological problems, his obsession with exposing himself (for which he had some 32 convictions), and his previous good deeds. That strategy failed. The Spencer County jury convicted him and recommended death, and the trial judge accepted its advice. On appeal to the Indiana Supreme Court, however, his conviction and sentence were vacated, because the court found that he had been denied his right to a fair trial when his motion for a change of venue was denied. A fair trial in Spencer County, it said, would have been impossible. Ward v. State (Ward I), 810 N.E.2d 1042, 1050 (Ind. 2004).

We are concerned with Ward’s second trial, at which he was represented by attorneys Lorinda Youngcourt and Steven Ripstra. They had handled his appeal to the Indiana Supreme Court and were thus familiar with his case. The judge for the new trial was Robert J. Pigman, an appointed special judge; the trial was conducted in the Vanderburgh County Superi- or Court, with a jury venire drawn from Clay County. After the trial court denied Ward’s motion to dismiss the state’s request for the death penalty, he pleaded guilty to murder and Class A felony rape, and the state agreed to dismiss the charge of criminal deviate conduct (which supported one aggravating circumstance for purposes of the death penalty). Ward requested a jury for his penalty trial.

Although Youngcourt in particular was an experienced criminal defense lawyer who had handled numerous capital cases, she was quite overextended when she undertook to represent Ward at his second trial. Two of her clients had “real” execution dates, which she was trying to have set aside. Another client was under a federal sentence of death and Youngcourt was handling his motion under 28 U.S.C. § 2255. Finally, she was in the early stage of preparing for two additional capital trials. Perhaps that is why she exercised such poor oversight over a social worker, Micki Delph Rushton, whom she had hired to develop mitigation evidence. They had counted on using materials that had been developed for the first trial, but the file turned out to be very thin, and they concluded that they needed to start from scratch.

Rushton did very little on the case, though she ultimately completed 12 comprehensive witness interviews out of some 45 that Youngcourt wanted. (Most of the people on this list had knowledge of Ward’s convictions for exposing himself.) Youngcourt was able to secure a continuance of the trial, which had been set for October 2006. In January 2007 there was a conference to set a new trial date. Youngc-ourt asked for a year, but the court gave her only until May 7, 2007. Youngcourt describes her state of readiness for that trial as “zero.” It then turned out that Rushton’s life was “falling apart” and that she had “a bad drinking problem.”

Youngcourt filed several other motions for continuances, but the court denied them. She retained other witnesses, including a mitigation investigator who abandoned the case after one day. She also retained a mental health consultant, Dr. George Parker, but he did not meet Ward until the end of March. She eventually also hired Dr. Alan Friedman, who was supposed to conduct neuropsychological testing but did not. He did, however, interview Ward during three visits to the prison, and he reviewed substantial materials that Youngcourt had furnished. Ultimately, the defense team decided not to stress mitigation, but instead to emphasize Ward’s serious psychological problems. Dr. Friedman thought that Ward was a “psychopath,” and Dr. Parker agreed.

That was what the jury heard at the penalty trial, which began on May 9, 2007. It also heard Dr. Friedman’s opinion that Ward should never be “on the streets” because he was born without a conscience. James E. Aiken, a former Commissioner of the Indiana Department of Correction, testified that Indiana had the ability safely to incarcerate a psychopath such as Ward. Drs. Friedman and Parker, unhelpfully for Ward, thought that he would be more dangerous than the average prisoner, and Dr. Parker opined that Ward might be a threat to someone in the prison who was smaller or weaker than himself, or perhaps someone whom Ward caught in a moment when Ward had the upper hand.

The lawyers also introduced mitigating evidence at the second trial; witnesses discussed his bad parental modeling (his father was also an exhibitionist), his attention deficit hyperactivity disorder, his learning difficulties, his depression, and his psychopathy. Counsel did not have much material that they could use to humanize Ward, but they tried nonetheless to introduce what they could. As we noted, the jury recommended death; the trial court accepted that recommendation; and it sentenced Ward to death on June 8, 2007. The Indiana Supreme Court affirmed on direct appeal from the second trial. Ward v. State (Ward II), 903 N.E.2d 946 (Ind. 2009). Ward sought post-conviction relief in the state court, but the trial court denied his petition after an evidentiary hearing, and the Indiana Supreme Court again affirmed. Ward v. State (Ward III), 969 N.E.2d 46 (Ind. 2012). Ward then filed his petition under 28 U.S.C. § 2254, which the district court denied, paving the way for this appeal.

II

The sole issue Ward presents is “[wjhether trial counsel were ineffective when they failed to adequately investigate and present readily available mitigating evidence; and, due to their lack of preparation, instead presented Ward as a dangerous, incurable, remorseless ‘psychopath.’” As the Indiana Supreme Court recognized in Ward III, this claim must be analyzed “under the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Ward III, 969 N.E.2d at 51. Strickland, as the state supreme court went on to recognize, requires a petitioner to show two things in order to prove a Sixth Amendment violation: first, that counsel’s performance was deficient, by showing that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,”; and second, that “the deficient performance prejudiced the defense,” by depriving the defendant of a trial whose result is reliable. 466 U.S. at 687, 104 S.Ct. 2052

Strickland left no doubt that these are two independent, and equally essential, requirements for the petitioner. Its comments on this point are helpful in the present case:

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.

Id. at 697, 104 S.Ct. 2052.

We find that this is one of those cases that is easier to resolve on prejudice, and so we turn immediately to that point. Ward has something to say about it, although he spent most of his brief detailing the many ways in which he believes that the performance of his trial lawyers was deficient. Only at page 48 out of 53 does he turn to the Indiana Supreme Court’s finding that whatever errors counsel made, and however deficient the additional evidence gathered at the post-conviction stage may have shown them to be, he cannot show prejudice, as Strickland uses that term. See Ward III, 969 N.E.2d at 67.

The Supreme Court’s test for prejudice is a familiar one to those who spend any time with habeas corpus cases:

The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Applying this test, the Indiana Supreme Court wrote that:

After weighing the totality of the mitigating evidence [including that produced at post-conviction] against the evidence in aggravation, we conclude that Ward was not prejudiced by any inadequacies in his trial counsel’s performance ... There is no reasonable probability that the additional evidence presented at the PC hearing would have changed the jury’s verdict.

Ward III, 969 N.E.2d at 72.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), which amended 28 U.S.C. § 2254(d), we must respect this finding of the state’s highest court unless the state’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In making that determination, we do not assess the issues on our own; we decide only whether the state court either invoked the wrong legal standard or applied the correct standard unreasonably. Over and over, the Court has stressed that “an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) (quoting Williams v. Taylor, 529 U.S. 362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). The Richter Court elaborated that “a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” 562 U.S. at 103, 131 S.Ct. 770.

With that intentionally demanding statutory standard in mind, even assuming that Ward’s attorneys performed deficiently when they pounded into the jury’s mind the idea that Ward is a psychopath — not merely someone suffering from severe antisocial personality disorder — we cannot say that the state court’s conclusion that there was no prejudice was unreasonable. First, the state court unquestionably turned to the correct decision from the U.S. Supreme Court, and so there is no issue of a decision “contrary to” established law. Nor can we say that the Indiana Supreme Court unreasonably applied Strickland. The lay mitigation evidence that Ward gathered for the post-conviction proceedings would have shown, if credited, that he was a well-behaved and thoughtful child, who had an especially close relationship with his grandfather. It would also have underscored Ward’s psychological problem with exhibitionism, hinting if not proving that this was something he either inherited from his father and grandfather, or maybe copied from them (both had the same problem). This evidence is not particularly strong, and it is largely cumulative of the mitigating evidence the second jury did hear.

Counsel at oral argument disclaimed any intention to rest Ward’s case exclusively on the use of the word “psychopath,” rather than the phrase “severe antisocial personality disorder.” At the same time, she argued that studies have shown that juries have an especially negative reaction to the term “psychopath,” and that it was appalling performance for Ward’s attorneys to allow his experts to use the word. There is no doubt that Ward’s lawyers faced a difficult choice: to portray Ward as somehow redeemable, and thus not deserving of death, or to portray Ward as so mentally damaged that the death penalty was inappropriate. The Indiana Supreme Court thought that their choice was defensible, but as we said, we do not need to reach the performance issue.

The reason why a reasonable state court could find that Ward was not prejudiced by his trial lawyers’ strategy is easy to see. Against the mitigating evidence counsel did not use, and the psychological labels that were used, stood a mountain of stark evidence against Ward. He raped, tortured, and murdered an adolescent girl in an unbelievably brutal fashion. From the time Marshal Keller found him standing near the dying girl until the time of trial, Ward showed no remorse for his actions. He has admitted that he feels no remorse, and the jury undoubtedly observed his flat demeanor throughout the trial. No one was presenting an argument based on Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), that Ward was mentally retarded and thus not eligible for the death penalty (the record indicates his IQ is 79). And it is'premature to address any possible argument under Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), that it would violate the Eighth Amendment to carry out Ward’s sentence, because of “insanity.”

The jury thus was asked whether a sentence of death was the proper one, in light of the presence of the aggravating circumstance that Ward committed the murder by intentionally killing the victim while committing rape, and the aggravating circumstance that he tortured and mutilated the victim while she was still alive. Finding no mitigating circumstances to outweigh these facts, the jury said yes, the trial court agreed, and their decisions were affirmed by the state supreme court.

Ill

Applying the standards imposed by AEDPA, we conclude that the Indiana Supreme Court’s decision that Ward cannot show prejudice from any deficient performance counsel may have rendered was a reasonable application of clearly established law from the U.S. Supreme Court. His claim under Strickland must therefore fail. We therefore Affiím the judgment of the district court denying Ward’s petition under 28 U.S.C. § 2254.


author: WOOD, Chief Judge.

text:
    Charles WALKER, Petitioner-Appellant, v. Kathy GRIFFIN, Superintendent, Miami Correctional Facility, Respondent-Appellee.
    No. 15-2147
    United States Court of Appeals, Seventh Circuit.
    Argued May 24, 2016
    Decided August 29, 2016

      Michael Ausbrook, Attorney, Blooming-ton, IN, for Petitioner-Appellant.
    Kelly A. Loy, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.
    Before WOOD, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.
   WOOD, Chief Judge.

Charles Walker was convicted in an Indiana court of robbery, adjudicated a habitual offender pursuant to Indiana Code § 35-50-2-8, and sentenced to 40 years in prison. Twenty of those years were attributable to his habitual-offender status. The version of the habitual-offender statute Indiana had in place at the time applied if a defendant had been convicted of two prior unrelated felonies, in a specific sequence: the second felony had to have been committed after the commission of and sentencing for the first, and the present crime had to have been committed after the commission and sentencing of the second earlier offense. At Walker’s trial, the state provided evidence of three prior felonies, but it failed to offer evidence of the date when one of the crimes was committed.

The only claim Walker presses before us is ineffective assistance of appellate counsel. He contends that his lawyer on direct appeal should have challenged the sufficiency of the evidence for the habitual-offender conviction, given the missing date. Even assuming that counsel’s performance fell below the constitutional minimum, we conclude that Walker’s petition for a writ of habeas corpus was properly dismissed. The state appellate court’s conclusion that Walker’s Sixth Amendment right to counsel was not infringed meets the generous standards that apply under 28 U.S.C. § 2254, and so we affirm.

I

In 2006 an Indiana jury convicted Walker of a robbery that took place on November 29, 2005. Ind. Code § 35-42-5-1. He was also charged with being a habitual offender. Ind. Code § 35-50-2-8 (2005). The version of the habitual-offender statute in place in 2006 said, in relevant part: “the state may seek to have a person sentenced as a habitual offender for any felony by alleging, on a page separate from the rest of the charging instrument, that the person has accumulated two (2) prior unrelated felony convictions.” Id. It required proof of the two priors beyond a reasonable doubt. Id. § 35-50-2-8(g). (The law was amended in 2014 and 2015, but we cite the version that applies to Walker’s case.)

Walker’s original charging document listed five prior felony convictions: (1) a 1975 burglary, (2) a 1980 robbery, (3) a 1989 burglary, and (4) two 1995 cocaine-related convictions for drug conduct that took place in 1994. The state later filed an amended information that omitted the 1975 burglary. At trial, the prosecutor presented evidence to the jury including the docket and sentencing transcript from the 1980 robbery and the docket and abstract of judgment of the 1989 burglary. But for the 1989 burglary, neither the docket nor abstract of judgment listed the date on which the crime was committed. They indicated only the charging date (March 31, 1989) and the conviction date (June 30, 1989). The charging information for that burglary did list the commission date, but it was not presented to the jury. Walker later included the information for the 1989 offense in his post-conviction petition; it indicates a commission date of March 10, 1989.

On direct appeal, Walker challenged the sufficiency of the evidence supporting the robbery conviction and the reasonableness of the 40-year sentence. The Indiana Court of Appeals, affirmed. Walker v. State (Walker I), 872 N.E.2d 704 (Ind. Ct. App. 2007). Walker then filed a state post-conviction petition in which he argued that both his trial and appellate counsel were ineffective for failing to challenge the sufficiency of the evidence for the habitual-offender conviction based on the missing commission date. The first court to review the petition, an Indiana superior court in LaPorte County, ruled that the 1995 drug convictions were statutorily ineligible to serve as prior felonies for habitual offender purposes but otherwise denied relief.

The court of appeals, adopting the superior court’s finding with respect to the 1995 convictions, considered only the 1980 and 1989 convictions in its post-conviction review. Walker v. State (Walker II), 988 N.E.2d 1181 (Ind. Ct. App. 2013). The court agreed with Walker that his trial counsel performed deficiently for failing to move for a directed verdict based on the absence of the 1989 commission date, but found that there was no prejudice. Id. at 1188. Had counsel so moved, the appellate court reasoned, the trial court would have reopened the case and allowed the state to introduce the charging information. Id. The court found that appellate counsel did not perform deficiently because he had challenged the habitual-offender conviction in his argument about the reasonableness of the sentence. Id. at 1191. Moreover, the court pointed out, Walker’s appellate counsel would have seen the presentence investigation report, where “the only thing glaring from the record is that Walker had committed crime after crime after crime during his adult life.” Id. The missing date for the 1989 burglary was “not significant and obvious.” Id.

In his federal habeas corpus petition, Walker challenged only the effectiveness of the assistance of appellate counsel. The district court, noting that the proceedings were governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(a), found that the state court did not unreasonably apply clearly established federal law in finding effective assistance of appellate counsel. It refused to issue the writ and denied a certificate of appealability. This court granted a certificate limited to the question of whether appellate counsel was effective.

II

We review the district court’s denial of Walker’s section 2254 petition de novo, but with great deference to the state courts’ decisions. Coleman v. Hardy, 690 F.3d 811, 814 (7th Cir. 2012). We look to the last state court decision to rule on the merits of the claim, McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir. 2011), to see if that ruling is “contrary to” clearly established federal law, “involved an unreasonable application of’ clearly established federal law, or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) — (2). Walker argues only that the state court decision was an unreasonable application of clearly established federal law.

Walker argues that his appellate attorney, Don Pagos, performed deficiently in failing to notice or challenge the absence of the commission date for the 1989 crime. Indiana allows a sufficiency challenge to a habitual-offender finding only on direct appeal, he says, and so it was then or never. Had Pagos raised the issue on appeal, Walker contends, the Indiana Court of Appeals would necessarily have reversed the habitual-offender finding. He then asserts that he could not have been retried after such a reversal, because the sequence of the prior felonies is an element of. the habitual-offender conviction that must be found by a jury, and therefore retrial would violate the double jeopardy clause. All that would have been left for the court of appeals to do, Walker concludes, would have been to strike 20 years from his sentence.

A

The clearly established federal law that controls ineffective assistance of counsel claims is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, the defendant must demonstrate both that counsel’s performance was constitutionally deficient, and that the deficient performance prejudiced him. Id. at 687, 104 S.Ct. 2052. We do not decide that question on our own, however; we are allowed to consider only whether the state court unreasonably applied Strickland’s standards. Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Because the state court made a finding only on appellate counsel’s performance, and not prejudice, we assess prejudice independently, Harris v. Thompson, 698 F.3d 609, 625 (7th Cir. 2012), although the outcome of this case would be no different even if we were to impute a finding on prejudice to the state court and apply AEDPA deference.

1

We begin with the state’s argument that “[bjecause Walker cannot show that he is not a habitual offender, he cannot demonstrate either deficient performance or prejudice.” The state contends that the Indiana superior court reasonably applied federal law when it required Walker to make such a showing. The superior court found that to show prejudice (from trial or appellate counsel’s performance), Walker “must demonstrate that he was not a habitual offender” and that “his various convictions did not in fact occur in the required order.” Walker v. State, 46D01-1207-PC-211 at 6 (Ind. Sup. Ct. Jul. 25, 2012) (quoting Weatherford v. State, 619 N.E.2d 915, 918 (Ind. 1993)).

Placing the burden on a defendant to prove that his argument would prevail is in considerable tension with Strickland’s rule, under which the defendant must show only that there is a reasonable probability of a different result. As the Supreme Court put it there, “a defendant need not show that counsel’s deficient conduct more likely than not altered the outcome in the case.” 466 U.S. at 693, 104 S.Ct. 2052. Instead, “the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. Applying that standard here, we see that Walker needed only to show that absent counsel’s error he would have had a reasonable shot at acquittal on the habitual-offender charge. We therefore assume for present purposes that Walker did not have the burden to demonstrate conclusively' that he is not in fact a habitual offender.

2

' By the time the Indiana Court of Appeals considered Walker’s post-conviction petition, Pagos had died. The court thus had to reconstruct what his appeal strategy may have been without the aid of his testimony. Appellate ineffective-assistance claims require the reviewing court to look at the issue that appellate counsel failed to raise, and determine whether that issue was “obvious and clearly stronger” than issues that appellate counsel did raise. Sanders v. Cotton, 398 F.3d 572, 585 (7th Cir. 2005).

The state appellate court reasoned that because Pagos raised a sentencing claim on Walker’s behalf, he must have become familiar with Walker’s criminal history. That in turn mean that Pagos must have known that Walker had enough prior convictions to satisfy the state’s habitual-offender statute. The absence from the record of the date on which he committed the 1989 burglary, the court thought, was “not significant and obvious.” Walker II, 988 N.E.2d at 1191. There is some tension in the court’s finding both that Pagos must have reviewed Walker’s criminal history and sentencing in detail, and that he must have missed the absence of a key piece of evidence in the state’s case. The former suggests an intentional strategy, and the latter negligence. But that tension does not render the state court’s conclusion an unreasonable application of clearly established federal law. It is plausible that Pagos declined to raise the issue because he believed there was no point in doing so. The Court of Appeals would simply have affirmed based on the evidence from which the commission date could be inferred, or reopened the case for the state to supply the missing documentation. It is also plausible that he did not raise the issue because it was. not obvious, and he raised other issues that he considered more promising. We find nothing unreasonable, in the sense that AEDPA uses the term, in the state appellate court’s assessment of Pagos’s performance.

3

That leaves the question of prejudice. On this point, Walker’s argument begins badly by relying on outdated Indiana law for the proposition that the omission of the key date would have required the state appéllate court to reverse the habitual-offender finding outright. The state counters that by the time of Walker’s direct appeal in 2007, the proper response to the deficiency in the record would have been for the state appellate court to remand to allow the prosecutor to supply the missing evidence.

Walker cites Steelman v. State, 486 N.E.2d 523 (Ind. 1985), for the proposition that the state court would vacate the habitual-offender finding because of a lack of proof of the commission date of the 1989 burglary. But since that time the Indiana Supreme Court has declined to vacate a habitual-offender sentence — in fact it declined even to remand to add the commission date — where a defendant was found to be a habitual offender on a record that lacked evidence of the commission date of one of the prior felonies. Burnett v. State, 736 N.E.2d 259, 262 (Ind. 2000) (“Although the better practice is to offer direct evidence of the commission date of the second offense, a reasonable jury could have concluded that Burnett committed his second felony after receiving his sentence for the first” where there ;was a gap of almost eight years between the sentencing for the first offense and the arrest date for the second offense), overruled on other grounds by Ludy v. State, 784 N.E.2d 459 (Ind. 2003); see also Clark v. State, 597 N.E.2d 4, 12 (Ind. Ct. App. 1992) (inclusion of arrest and sentencing dates “amply meets the requirement” of proving sequence of prior felonies). Although the state seemed to concede at oral argument that an inference about sequence would be insufficient under Indiana law — a point in Walker’s favor — Clark and Burnett indicate otherwise.

On this record, the inference that the sequence of offenses met the criteria of the habitual-offender statute is strong. The state introduced evidence that Walker committed the 1980 robbery on February 4, 1980, was convicted of it on June 27, 1980, and sentenced on July 25,-1980. It introduced evidence that Walker was charged with the 1989 burglary on March 31, 1989, convicted on June 30, 1989, and sentenced on July 28, 1989. As in Burnett, the long gap between the arrest date for the 1989 burglary and the sentencing date for the 1980 robbery — nine years — leaves little doubt that the burglary occurred after the robbery and Walker’s subsequent sentencing. It is unlikely that, had Pagos raised the issue of the missing commission date, the state court would have given Walker a new trial. The court might not even have deemed it necessary to reopen the case for admission of evidence.

Second, Walker’s argument rests on a misunderstanding of double jeopardy law. He asserts that in a habitual-offender case, the sequence of felonies is a fact that must be found by a jury, and therefore that it would violate the Double Jeopardy Clause to remand for retrial. See U.S. Const., amend. V (double jeopardy clause); Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) (applying the Double Jeopardy Clause to the states via the Fourteenth Amendment). It is true that double jeopardy precludes the state from re-trying a case that is reversed based on insufficiency of the evidence to prove the crime. Burks v. United States, 437 U.S. 1, 17-18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). But a conviction for a crime is different from a jury finding that a defendant is a habitual offender. United States v. Monge, 524 U.S. 721, 118 S.Ct. 2246, 141 L.Ed.2d 615 (1998), holds that the Double Jeopardy Clause does not preclude retrial of sentencing issues in noncapital cases. Following Monge, the Indiana Supreme Court stated in 2005 that earlier Indiana court decisions barring retrial of habitual-offender status findings that had been set aside on appeal for insufficient evidence were no longer good law. Jaramillo v. State, 823 N.E.2d 1187, 1191 (Ind. 2005); see also Dexter v. State, 959 N.E.2d 235, 240 (Ind. 2012).

Walker argues that the fact of a prior conviction, which the Supreme Court held need not be found by a jury in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), is different from the sequence of prior convictions. We do not see why. Double jeopardy would not have barred the Indiana Court of Appeals from remanding his case to introduce the commission date of the 1989 burglary. See Monge, 524 U.S. 721, 118 S.Ct. 2246. Walker’s conjectural argument — that, had Pagos raised the habitual-offender sequencing issue and the Court of Appeals remanded to the trial court, the prosecutor might have declined to re-try it, or Walker might have put on a better defense — is not strong enough to demonstrate a “reasonable shot” at a different outcome. There was no prejudice from Pa-gos’s failure to raise the issue.

m

Because Walker cannot demonstrate that the Indiana Court of Appeals rendered a decision that constituted an unreasonable application of federal law in finding adequate performance by his appellate counsel, and because Walker was not prejudiced by any misstep counsel may have made, we Affirm the judgment of the district court.


author: PER CURIAM.

text:
    Michael H. WU and Christine T. Wu, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 16-1660
    United States Court of Appeals, Seventh Circuit.
    Decided August 29, 2016
    Submitted August 26, 2016

      Michael H. Wu, Chicago, IL, Pro Se Plaintiff-Appellant.
    Christine T. Wu, Chicago, IL, Pro Se Plaintiff-Appellant.
    Norah Bringer, Stephen T. Lyons, Bruce R. Ellisen, Attorneys, Department of Justice, Tax Division, Appellate. Section, Washington, DC, Ernest Yi Ling, Attorney, Office of the United States Attorney, Chicago, IL, for Defendant-Appellee.
    Before MANION, ROVNER, and HAMILTON, Circuit Judges.

       After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus the appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2)(C).

   PER CURIAM.

Michael and Christine Wu contributed more than allowed to their individual retirement accounts in 2007, and as a result they faced taxes on those accounts for each year that the excess funds remained. The Wus realized their mistake in early 2010, informed the IRS, and corrected the problem by withdrawing the excesses from their accounts. The Wus paid the taxes for 2007 through 2009, and although they conceded liability for the first two years, they each sought a refund for tax year 2009 on the ground that they had avoided incurring taxes for that year by adjusting the IRA account balances before the April 2010 filing deadline for their 2009 tax return. The IRS rejected this contention, prompting the Wus to file this action under 28 U.S.C. § 1346(a)(1) for a refund of the 2009 taxes. The district court sided with the government, and the Wus appeal. We affirm the judgment.

Both of the Wus have an IRA, and each contributed $200,000 after selling their home in 2007. For that tax year the maximum allowable deduction for IRA contributions was $4,000, and “excess contributions” (as calculated at the end of a tax year) incur a tax of up to 6% annually until withdrawn. 26 U.S.C. §§ 219(b)(1), (b)(5)(A), 4973(a), (b) (2006); see generally Johnson v. C.I.R., 620 F.2d 153, 155 (7th Cir. 1980) (discussing tax on excess IRA contributions); Johnson v. C.I.R., 661 F.2d 53, 55 (5th Cir. 1981) (same); Orzechowski v. C.I.R., 592 F.2d 677, 679 (2d Cir. 1979) (same). In March 2010, when the Wus finally realized their mistake, they withdrew from their IRAs the excess contributions and corresponding earnings. They jointly notified the IRS about the excess contributions and asked that the resulting taxes for 2007 through 2009 be waived. Oddly, the IRS gave different answers to the couple: Michael Wu received a letter concerning his “inquiry” saying that taxes had been assessed for each year; Christine Wu received a letter telling her that her “claim for credit” had been disallowed, that she too had been assessed taxes on her excess contributions, and that she could appeal the decision disallowing her “claim.”

Afterward the Wus promptly paid the taxes plus penalties. Then • in February 2012 each filed with the IRS a claim for a refund of the taxes attributable to 2009 (additional claims made by the Wus are not relevant to this appeal). The Wus asserted that they had skirted liability for tax year 2009 by withdrawing (or, in IRS parlance, taking “distributions” of) the excess contributions and corresponding earnings before the filing deadline for their 2009 tax return. In April 2013 the IRS Appeals Office rejected this contention in a letter addressed to both Michael and Christine Wu. According to the Appeals Office, the filing deadline for a particular tax year is relevant only to events occurring during that tax year, e.g., no taxes would have been incurred for 2009 if the excess contributions had been made in 2009 but distributed before the April 2010 deadline for 2009 individual returns. But since the Wus made their excess contributions in 2007, the Appeals Office continued, their distributions in 2010 did not save them from taxes for 2009.

Two months later, in June 2013, the Appeals Office sent a second letter, this one addressed only to Christine Wu. In this communication the Appeals Office purported to uphold the agency’s previous rejection of her “claim for credit.” Wu was told that she could sue for a refund in federal court so long as she did so within two years of July 19, 2010, the date of the letter denying her “claim for credit.” That deadline, of course, had passed almost a year earlier.

The Wus jointly sued for refunds in May 2014. They asserted that their March 2010 distributions of the excess contributions and associated earnings brought into play 26 U.S.C. § 4973(b), which provides that IRA contributions made but then distributed under § 408(d)(4) “shall be treated as an amount not contributed.” Section 408(d)(4) literally says that a “distribution of any contribution paid during a taxable year” will not count as gross income (under § 408(d)(1)) if that distribution “is received on or before the day prescribed by law (including extensions of time) for filing such individual’s return for such taxable year.” The Wus argued that this language means that excess contributions, for whatever year added to an IRA, are exempt from the annual tax on excess contributions in a later taxable year if a distribution is made during, or before a return is due for, that later taxable year. If their understanding of § 408(d)(4) is correct, then the Wus did not incur a liability for tax year 2009 because they distributed the excess contributions and earnings before April 15, 2010.

On the government’s motion, the district court dismissed the action, agreeing with the government’s position that Michael Wu did not state a claim and that subject-matter jurisdiction was lacking over Christine Wu’s claim. The court accepted the government’s view that § 408(d)(4) covers only those distributions made before the return deadline of the tax year when the excess contribution was made, not withdrawals of contributions made in earlier tax years. And because Michael Wu’s excess contributions had been made in 2007, the court said, he missed the opportunity to avoid incurring taxes again in 2009 by not taking a distribution before the last day of the tax year. As for Christine Wu, the district court looked to the statute of limitations in 26 U.S.C. § 6532(a)(1) and, on that authority, concluded that it lacked “jurisdiction” because she had not filed suit within two years of receiving the IRS’s July 2010 letter saying that her “claim for credit” had been disallowed. And at all events, the court added, Christine Wu did not state a claim for the same reason that Michael Wu did not state a claim.

As the government has since conceded, it misled the district court about Christine Wu’s claim. Section 6532(a)(1), although entitled “Periods of limitation on suits,” has been interpreted as jurisdictional by several circuits. See Kaffenberger v. United States, 314 F.3d 944, 950-51 (8th Cir. 2003); Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 324 (6th Cir. 1990); Dalton v. United States, 800 F.2d 1316, 1319 (4th Cir. 1986). But whether or not that characterization is correct, § 6532(a)(1) is irrelevant to the letter received by Christine Wu in July 2010. That communication was prompted by the Wus’ letter of March 2010, which sought “waiver” of a “penalty,” not a “refund” of taxes which had not even been assessed. See 26 C.F.R. § 301.6402 — 2(b)(1) (defining content of claim for refund); D’Amelio v. United States, 679 F.2d 313, 315 (3d Cir. 1982) (observing that estate had not made a claim for a refund by sending to IRS letters that sought information about tax liability but “did not advise the government that it believed it was entitled to a refund”). And though it is possible to con--strue a communication from the IRS as waiving the formal requirements for a claim to a refund and disallowing a refund, see Nick’s Cigarette City, Inc. v. United States, 531 F.3d 516, 521 (7th Cir. 2008), the March letter could not have triggered a decision by the IRS because no taxes had been paid or even assessed. So just like her husband, Christine Wu first claimed a refund of the 2009 taxes in February 2012 and then brought this action barely a year after the IRS Appeals Office finally disallowed that claim. Thus, for both Michael and Christine Wu, the question before us is whether their interpretation of § 408(d)(4) is correct.

We conclude that it is not. Like the district court, we agree with the IRS’s reading of § 408(d)(4). Although that interpretation appears to be no more than a litigation position that is not entitled to our deference, see Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212-13, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988); In re UAL Corp. (Pilots’ Pension Plan Termination), 468 F.3d 444, 449-50 (7th Cir. 2006); Harco Holdings Inc. v. United States, 977 F.2d 1027, 1035 (7th Cir. 1992), we are persuaded that the government’s position is more consistent with the text of § 408(d)(4). That provision, as we have noted, literally applies when a contribution paid into an IRA “during a taxable year” is distributed “on or before the day prescribed by law (including extensions of time) for filing such individual’s return for such taxable year.” As the government points out, the phrase “such taxable year” refers to the taxable year in which the contribution was made to the account. The Wus made their excess contributions in 2007, so for that tax year they could have avoided incurring the annual tax on excess contributions by withdrawing the excess before the return-filing deadline for that taxable year, i.e., April 15, 2008. But for any later year the Wus could avoid the annual tax only by taking the distribution before the taxable year ended.

The position advocated by the Wus ignores the language in § 408(d)(4) and also is an ill fit with the text of § 4973(b). Under § 4973(b), the consequence of taking a qualifying distribution under § 408(d)(4) is that the amount of the withdrawal “shall be treated as an amount not contributed.” But the Wus are not asking that their 2007 contributions be treated as if they were never contributed (after all, they conceded liability for tax years 2007 and 2008); they are asking that those contributions be eliminated from the calculation for 2009 alone.

Although the Wus’ principal contention is that the district court erred in dismissing their refund claims for 2009, we close by briefly addressing one other argument. They suggest in their brief that their calculated excess contributions should have been reduced by $475 each under § 4973(b)(2)(C). As the government points out, this contention is undeveloped, as the Wus have not pointed to any facts in support and did not raise it either in their refund claims before the IRS or in the various iterations of their complaint before the district court (apart from a mention of their total excess contributions being “$400,000 (or $399,050)”). The Wus’ undeveloped argument is waived. See United Cent. Bank v. Davenport Estate LLC, 815 F.3d 315, 318 (7th Cir. 2016).

We have reviewed the Wus’ remaining contentions, and none has merit.

AFFIRMED.