Daniel Makiel v. Kim Butler

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 13-3076 & 13-3777

DANIEL MAKIEL,

Petitioner-Appellant,

v.

KIM BUTLER, Warden,

Respondent-Appellee.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 CV 9644—James B. Zagel, Judge.

____________________

ARGUED NOVEMBER 10, 2014 — DECIDED APRIL 10, 2015

____________________

Before WOOD, Chief Judge, and ROVNER and HAMILTON,

Circuit Judges.

HAMILTON, Circuit Judge. Petitioner Daniel Makiel was

convicted in an Illinois state court for the murder of Kathe-

rine Hoch and the armed robbery of a gas station where she

worked. He appeals from the district court’s denial of his pe-

tition for a writ of habeas corpus and raises two claims on

appeal. First, he argues that his appellate counsel was consti-

tutionally ineffective under Strickland v. Washington, 466 U.S.

668 (1984), for failing to challenge two evidentiary rulings

2 Nos. 13-3076 & 13-3777

during his direct appeal. Second, he contends that his consti-

tutional right to compulsory process was violated when the

trial court prevented a witness from testifying on his behalf.

We affirm. Although there were some problems in the

state courts’ handling of Makiel’s case, he is not entitled to

federal habeas corpus relief. The state courts did not apply

federal law unreasonably in concluding that Makiel’s coun-

sel was not ineffective in selecting the issues to pursue on

appeal. The evidence shows that his counsel selected the is-

sues with care. One issue she raised drew a remand, and al-

though the other two issues did not prevail, they both drew

a dissenting opinion. The first issue Makiel complains she

did not raise—an evidentiary ruling preventing the defense

from impeaching prosecution witness Allen Martin with a

pending forgery charge—was not so clearly stronger than

the issues she did raise that the state courts were required to

find ineffective assistance of counsel under Strickland. The

second issue she did not raise—the trial court’s exclusion of

Brian Spodach’s testimony about the reputations of prosecu-

tion witnesses Martin and Shane Miller—was not clearly

stronger than the issues she raised.

The state court also did not act unreasonably when it

found no violation of Makiel’s constitutional right to com-

pulsory process. The trial court excluded the testimony of

eleven-year-old Tim Anderson, who would have blamed an-

other young boy (not the adult Makiel) for the murder. This

proffered testimony was uncorroborated at the time of trial,

but its exclusion was an error. That was the basis for the state

appellate court’s remand in the original appeal for an evi-

dentiary hearing. See People v. Makiel, 635 N.E.2d 941 (Ill.

App. 1994), from which we draw most facts in this opinion.

Nos. 13-3076 & 13-3777 3

By the time the state courts decided the constitutional issue,

however, Anderson had completely disavowed his proffered

trial testimony, and there was no reason to think his prof-

fered trial testimony would have been probative or reliable.

Under the circumstances, the state courts’ denial of relief was

not an unreasonable application of U.S. Supreme Court

precedent.

I. Factual and Procedural History

The complex history of this case spans more than twenty-

five years. Several of our ultimate conclusions depend on

evaluating the record as a whole, so we must describe in

some detail each stage of Makiel’s process through the state

and federal courts.

A. The Murder of Katherine Hoch

Katherine Hoch managed a Mobil gas station in Calumet

City, Illinois. On the night of October 19, 1988, the gas station

was robbed. She was taken into a back room and shot in the

back of the head. The State initially charged three men with

the murder and armed robbery: Samuel Ilich, Todd Hlinko,

and petitioner Daniel Makiel. Ilich went to trial and was ac-

quitted. After Ilich’s acquittal, Hlinko reached a plea agree-

ment with the State. He agreed to testify against Makiel in

exchange for dropping the murder and armed robbery

charges against him. Makiel was tried, convicted, and sen-

tenced to life in prison. Makiel maintains his innocence.

B. Pretrial Proceedings

On March 2, 1989, several months after the murder and

robbery, police arrested Todd Hlinko on a drug offense,

which also violated his probation from an earlier aggravated

battery conviction. While in custody that day, Hlinko signed

4 Nos. 13-3076 & 13-3777

a statement saying that on October 19, 1988, Makiel went in-

to the Mobil gas station alone, returned, and jumped back

into the car, and that Makiel, Hlinko, and Ilich then drove to

Makiel’s house. According to the statement, Hlinko saw a

purse at Makiel’s house that night before they went to sleep.

On March 16, 1989, the police arrested Hlinko again, this

time for the murder and armed robbery at the gas station.

After questioning by the police, Hlinko signed a second

statement that was inconsistent with his first statement. In

the March 16 statement, he again placed himself, Ilich, and

Makiel at the gas station, but this time he told police that he

stayed in the car while Makiel and Ilich went inside. He also

told police that after Makiel returned to the car, he saw Ma-

kiel throw something out of the window but never saw a

gun.

On April 7, 1989, Makiel was indicted for the murder and

armed robbery at the gas station. At the time, he was already

in the custody of the Indiana Department of Correction on

an attempted murder conviction. Indiana held an extradition

hearing where Makiel was represented by counsel. The ex-

tradition request was granted, and Illinois authorities trans-

ported him from Indiana to Illinois on October 20, 1989.

During the trip, an Illinois prosecutor questioned him

about the crime. Makiel answered some of the questions and

gave an arguably incriminating statement. Before trial, he

moved to suppress this statement. The state trial court de-

nied his motion.

Nos. 13-3076 & 13-3777 5

C. Trial

Makiel went to trial in February 1991.1 No physical evi-

dence directly linked him to the crime scene. The prosecu-

tion’s case rested primarily on witness testimony, especially

from Hlinko, who reached a plea agreement with the State in

October 1990 in exchange for testifying against Makiel.

1. Hlinko’s Plea Agreement

Hlinko’s plea agreement in the murder case was unusual-

ly generous. Hlinko first pled guilty to the probation viola-

tion based on the sale of narcotics that led to his first arrest

on March 2, 1989. Without any plea agreement on that

charge, he was sentenced to five years in prison. His plea to

the probation violation admitted the sale of narcotics, and he

faced another possible fifteen years in prison on that charge.

When the State first approached Hlinko to offer a re-

duced prison sentence in exchange for testifying against

Makiel, he refused. Ilich was then acquitted of the murder

and armed robbery in a separate trial. After Ilich’s acquittal,

the State went back to Hlinko and made a much more gen-

erous offer: in exchange for his testimony against Makiel,

Hlinko would receive five years in prison on the pending

1

Judge Paul T. Foxgrover presided over Makiel’s trial. Shortly after

the trial concluded, Judge Foxgrover was convicted of stealing fines he

imposed on defendants and of forgery. See People v. Fair, 738 N.E.2d 500,

502 (Ill. 2000); accord, Terry Wilson, Foxgrover Sentenced to 6 Years for

Theft and Forgery as Judge, Chicago Tribune (July 15, 1992), available at

http://articles.chicagotribune.com/1992-07-15/news/9203030778_1_defendants-

sentenced-cook-county-circuit-judge (last visited April 9, 2015). Judge Fox-

grover’s crimes have not been an issue in this federal habeas corpus ac-

tion.

6 Nos. 13-3076 & 13-3777

narcotics charge, which would run concurrently with the

five-year term on the probation violation, plus the State

would drop the murder and armed robbery charges. In ef-

fect, he would face no additional punishment on the narcot-

ics charge or for the murder and armed robbery. This time,

Hlinko accepted the deal.

2. Hlinko’s Testimony

At trial, Hlinko testified that on October 19, 1988, he,

Makiel, and Ilich were driving a blue Oldsmobile Cutlass

442 belonging to a friend, John Miller, around Calumet City.

In later testimony, John Miller said that he had loaned the car

to Makiel and Hlinko and noticed from its condition the next

day that it had been driven the night before.

According to Hlinko, at about 11:00 p.m. Makiel said he

“would stop and get some money.” They pulled up to the

Mobil gas station and parked just off the road. They waited

in the car for a few minutes until the two customers in the

gas station had left. Then they parked the Cutlass next to a

white van, which belonged to Katherine Hoch.

Hlinko testified that Makiel got out of the car, and—

contrary to his earlier statements to police—that Hlinko

himself followed Makiel into the gas station. As they en-

tered, Hlinko saw Hoch walking from the counter toward a

back room. Makiel told Hlinko to “watch out,” pointed a

gun at Hoch, grabbed her arm, and led her to the back room.

As he acted as a lookout, Hlinko heard Makiel demand

money from Hoch and heard noises like drawers slamming.

Then he heard a single gunshot. Makiel left the back room

holding the gun and a purse and went behind the counter to

the cash register. Makiel picked up an envelope from the

Nos. 13-3076 & 13-3777 7

register, took two packs of cigarettes, and handed the ciga-

rettes to Hlinko. Hlinko did not see anyone else in the gas

station at the time. He estimated that they had been inside

the store for only a few minutes.

Hlinko and Makiel returned to the car, and Makiel put

the purse under the driver’s seat. Once inside the car, Hlinko

repeatedly asked Makiel, “What the hell was going on?”

Makiel told Hlinko that “something went wrong” inside the

station but not to worry about it.

Hlinko testified that during the ensuing car ride, they

stopped in an alley near Ilich’s house. Makiel left the car

with the purse and walked toward a dumpster. Hlinko did

not see what Makiel did at the dumpster, but he noticed that

when Makiel returned to the car, he no longer had the purse

with him.

At about 11:30 p.m., the men reached the home of a

friend, Shane Miller (no relation to the John Miller who

owned the Cutlass). Shane Miller invited Makiel, Hlinko,

and Ilich into his house, and the four of them smoked some

marijuana. About five minutes after smoking, all four drove

in the Cutlass to the Calumet Expressway. Makiel, who was

driving, slowed the car down and took the gun from his

pants as they crossed a bridge near Calumet City. He handed

the gun to Hlinko and told him to get rid of it. Hlinko threw

the gun out of the passenger-side window and into the Cal-

Sag River. Shane Miller, sitting in the backseat, asked Hlinko

what he threw out the window. Hlinko said it was a gun.

The four men then returned to the same Mobil gas station

to get some gas. When they arrived, they saw police cars in

the parking lot. A police officer stopped their car, told them

8 Nos. 13-3076 & 13-3777

that something had happened, and directed them to leave.

The four men then drove to Makiel’s house, arriving around

midnight. Hlinko and Makiel went upstairs to Makiel’s bed-

room, while Ilich and Shane Miller used the downstairs

bathroom. During the moments before Ilich and Miller en-

tered the bedroom, Hlinko again asked Makiel what had

happened, and Makiel again told him that something had

gone wrong but not to worry. After Ilich and Miller entered

the room, Hlinko heard Makiel tell Miller about the shoot-

ing.

At about 1:00 a.m., John Pullybank and his girlfriend ar-

rived at Makiel’s house. No one said anything to them about

the gas station incident. Pullybank and his girlfriend offered

to go out and buy more alcohol. To Hlinko’s surprise, Makiel

contributed $20 for himself, Hlinko, and Ilich. Hlinko testi-

fied that the $20 surprised him because Makiel usually had

no money on him and Hlinko had paid for everything earlier

that evening. In later testimony, Pullybank said that he was

friends with Hlinko, Makiel, and Ilich, but he denied seeing

Shane Miller while visiting Makiel’s house that night. He al-

so did not know for certain whether he had visited Makiel’s

house on the night in question.

On cross-examination, defense counsel attacked Hlinko’s

credibility in three main ways. First, counsel confronted

Hlinko with his two earlier statements to police, which were

inconsistent with each other and with his testimony at trial.

In fact, at several points during cross-examination, Hlinko

admitted that he “lied” to police during earlier parts of their

investigation. Second, counsel confronted Hlinko with a let-

ter he sent to Makiel in April 1989 (before he agreed to testi-

fy against Makiel) apologizing for falsely implicating him in

Nos. 13-3076 & 13-3777 9

his earlier statements to police. In that letter, Hlinko also

wrote that police officers had beaten him when he initially

denied knowing anything about the murder. Third, counsel

walked through Hlinko’s prior criminal history and the de-

tails of his generous plea agreement with the State.

3. Shane Miller’s Testimony

The prosecution called Shane Miller to corroborate

Hlinko’s testimony. Miller testified that he was in the Cutlass

with Makiel, Hlinko, and Ilich on the night of October 19 (af-

ter the murder occurred) and saw Makiel hand something to

Hlinko while the men were on the Calumet Expressway. Ac-

cording to Miller, Makiel told Hlinko to get rid of it, and

Hlinko tossed it out the window into the Cal-Sag River. Mil-

ler asked Hlinko what it was, and Hlinko told him it was a

gun.

Shane Miller also testified that the four men stayed at

Makiel’s house that night for about twenty-five minutes.

During that time, Makiel told Miller that he, Hlinko, and

Ilich had gone to the Mobil gas station and that Makiel had

shot the manager. Another man, Brian Spodach, later

dropped by Makiel’s house and gave Miller a ride to Miller’s

sister’s house.

On cross-examination, defense counsel confronted Shane

Miller with a signed statement from February 1990 saying

that his earlier statements to police implicating Hlinko and

Makiel in the gas station murder were untrue. He testified

that the statement was written by Hlinko’s mother and that

he signed the statement because she begged him. Defense

counsel also pointed out that Shane Miller waited approxi-

10 Nos. 13-3076 & 13-3777

mately five months before telling the police what he knew

about the crime.

4. Allen Martin’s Testimony

The prosecution also called Allen Martin to bolster

Hlinko’s testimony. Martin testified that at about 11:00 p.m.

on October 19, 1988, he and his girlfriend stopped at the

Mobil gas station to buy gas. He recognized John Miller’s

distinctively-painted Cutlass 442 parked along the fence on

the east side of the gas station. He saw his friends—Makiel,

Hlinko, and Ilich—sitting in the Cutlass. After he paid for his

gas, he waved to the three men, who were still sitting in the

Cutlass, got back in his car, and drove to a game room. He

estimated that he was at the Mobil station for a total of three

minutes and at the game room for about twenty minutes be-

fore he left to drive his girlfriend home. On the way, Martin

passed the Mobil station and saw an ambulance and police

cars. He read about the murder in the newspaper and later

found out that his friends had been implicated in the crime.

Martin testified that it took him a while to make a connec-

tion between having seen his friends at the gas station on

October 19 and their possible involvement in the murder.

5. Martin’s Pending Forgery Charge

On cross-examination, Makiel’s counsel attempted to im-

peach Martin in several ways. Counsel had Martin admit

that he (1) had been drinking the night of the murder, (2)

waited a long time before coming forward to the police, and

(3) denied who he was when he was initially approached by

a defense attorney.

Makiel’s counsel also attempted to impeach Martin with

a pending forgery charge. Counsel asked Martin whether he

Nos. 13-3076 & 13-3777 11

had been charged with forgery, and Martin flatly denied it.

Defense counsel then informed the court at a sidebar confer-

ence that he wanted to impeach Martin by introducing a cer-

tified copy of the pending charge. During this sidebar, the

State did not contest the fact that Martin had a pending for-

gery charge. The trial court nevertheless barred defense

counsel from introducing the charge and ordered both sides

not to discuss it further in front of the jury.

6. Prosecutor Quinn’s Testimony

Assistant State’s Attorney Patrick Quinn testified that on

March 21, 1989—before Makiel was indicted—he inter-

viewed Makiel in the presence of police investigators after

reading him his Miranda rights. Makiel denied knowing any-

thing about the murder. Quinn informed Makiel that a wit-

ness had seen him with Hlinko and Ilich at the Mobil gas sta-

tion around the time of the murder on October 19, 1988. At

that point, Quinn testified, Makiel said that he remembered

that he had stopped at the gas station on that night with

Hlinko and Ilich to buy some cigarettes.

7. Physical Evidence

A Chicago sanitation employee testified that on Octo-

ber 24, 1988, he found a purse containing Hoch’s driver’s li-

cense in a trash can in an alley less than ten minutes from

Ilich’s home. Hoch’s husband testified that the purse be-

longed to his wife. A forensic scientist and fingerprint expert

analyzed the purse and found sixteen latent prints suitable

for comparison. Eight prints belonged to Hoch, but none of

the remaining eight prints matched Makiel, Hlinko, or Ilich.

The first police officer to arrive at the crime scene testi-

fied that he found a .38-caliber shell casing in the back room

12 Nos. 13-3076 & 13-3777

of the gas station, but it yielded no suitable fingerprints. Nor

could the evidence technician find any suitable prints inside

or outside the gas station. Divers searched the Cal-Sag River

for the murder weapon but did not find it.

8. Makiel’s Alibi Defense

Makiel presented an alibi defense. His sister Laura Kobak

testified that he was babysitting on the night of the murder.

Kobak testified that Makiel agreed to babysit so that she and

her boyfriend could celebrate her birthday. According to her

testimony, Makiel, Hlinko, and two others—Cory and Lisa

Majszak—arrived about 6:30 p.m. on October 19, 1988. When

Kobak returned around midnight, Makiel and Hlinko were

alone with the children. In addition, Makiel presented sever-

al witnesses who testified that they had stopped by the gas

station around 11:00 p.m. on October 19 and had not seen a

blue Cutlass or a white van.

Tony Rodriguez testified that he and another man visited

Kobak’s house sometime after 8:00 p.m. on October 19. Ac-

cording to Rodriguez, when he arrived, Makiel, Hlinko, and

both Majszaks were babysitting Kobak’s children. He also

testified that he had seen John Miller’s Cutlass 442 “up on

jacks” in Makiel’s driveway earlier that day.

To rebut Makiel’s alibi defense, the prosecution called

Cory and Lisa Majszak, who testified that they did not

babysit with Makiel and Hlinko on the night of the murder.

They testified that they babysat at Kobak’s house with Ma-

kiel and Hlinko only once, sometime after October 23, 1988.

They also testified that they did not see Rodriguez on the

evening they babysat with Makiel and Hlinko. The State also

called a police investigator who testified that when he first

Nos. 13-3076 & 13-3777 13

spoke to Rodriguez about visiting Kobak’s house in October

1988, Rodriguez did not know the exact date of the visit.

9. Brian Spodach’s Potential Testimony

Defense counsel also called Brian Spodach. Recall that

Shane Miller testified that Spodach came by Makiel’s house

and gave Miller a ride on the night of October 19, 1988.

Spodach testified that he neither went to the house nor gave

Miller a ride that night. In addition, defense counsel sought

to introduce testimony from Spodach about Martin’s and

Shane Miller’s reputations for truthfulness. The trial court

excluded the evidence. According to defense counsel’s prof-

fer, Spodach would have testified that he knew their reputa-

tions based on his contacts with other people in the commu-

nity and that they had reputations for being “liars.”

10. Tim Anderson’s Potential Testimony

Makiel’s counsel then sought to introduce the testimony

of Tim Anderson. According to counsel’s proffer, Anderson

would have testified that Makiel had nothing to do with the

murder and armed robbery. Anderson was prepared to testi-

fy that on October 19, 1988, when he was nine years old, he

snuck out of his parents’ home around midnight and met up

with three friends: Brandon, Brian, and Jay. Jay said “let’s go

get some money,” and the four boys drove Brandon’s car to

the Mobil gas station. At the station, Jay took out an auto-

matic handgun, cocked it, and went inside. Anderson heard

a “loud shot.” Jay then returned to the car and said “I did it,”

and the boys drove off. Later that night, Brian told Anderson

that if he told anyone what had happened, Brian would

shoot him.

14 Nos. 13-3076 & 13-3777

The prosecution moved in limine to bar this testimony “as

not being relevant, not relating to this case and being too

remote and uncertain and speculative.” The trial court con-

ducted a sidebar and heard argument from both sides. The

prosecutor presented a November 1990 written statement to

police from Anderson that the incident occurred in August

1988, not October 1988 when Hoch was murdered. The pros-

ecutor also questioned Anderson’s competency to testify, ob-

serving that Anderson was only eleven years old at the time

of trial and that he had initially disclosed the story about the

gas station murder to a psychiatrist when he was hospital-

ized for mental health issues.

The trial court asked defense counsel whether the No-

vember 1990 written statement was the expected testimony

from Anderson. Defense counsel clarified that Anderson, if

permitted to testify, would say that the incident occurred in

October 1988, not August 1988. Counsel acknowledged that

Anderson’s written statement to police said that the incident

occurred in August, but he argued that the inconsistency

was simply a matter for cross-examination—not a reason to

bar the testimony altogether.

The trial court granted the State’s motion and barred An-

derson from testifying: “The Court finds, on the matter of

relevancy, the testimony here would be too remote, too

speculative.” It also discussed Anderson’s competency and

the desire to avoid trying collateral issues during the trial:

“The circumstances, taking into account a competency situa-

tion, both on a mental status and the age of the witness and

the remoteness of the same, reference to time of the incident,

such that the court would grant the State’s motion to bar.”

Although the trial court discussed Anderson’s competency

Nos. 13-3076 & 13-3777 15

and whether it would inject collateral issues into the trial, it

clarified: “The Court has not ruled on his competency.”

D. Direct Appeal (Makiel I)

Makiel appealed his conviction on three grounds: (1) the

October 20, 1989 statement he made after his extradition

hearing should have been suppressed, (2) the trial court

erred in excluding Tim Anderson’s testimony, and (3) the

prosecution made improper remarks during closing argu-

ments. In a split decision, the state appellate court denied

relief on Makiel’s claims regarding his pretrial statement and

the prosecutor’s closing arguments, but it unanimously held

that the trial court erred in barring Anderson from testifying.

People v. Makiel, 635 N.E.2d 941 (Ill. App. 1994) (“Makiel I”).

The court identified two errors with the trial court’s

handling of Anderson’s testimony. First, in determining that

the testimony was “not relevant,” the trial court improperly

relied on the State’s impeachment evidence (the November

1990 written statement to police) and confused relevance

with credibility: “The circuit court, by relying on the factors

it cited, essentially determined that Anderson’s proffered

testimony was not sufficiently credible.” Id. at 954. Since

credibility determinations go to the weight of the testimony,

not its admissibility, “the circuit court may have erred by

keeping relevant evidence from the jury based on the court’s

impression of its credibility.” Id.

Second, although the trial court said that it did not de-

termine competency, the appellate court noted that concerns

about Anderson’s competency might have improperly influ-

enced the trial court’s decision. The appellate court held that

the trial court erred by not examining Anderson to see if he

16 Nos. 13-3076 & 13-3777

was in fact competent to testify. Id. Accordingly, the appel-

late court remanded the case to the trial court with the fol-

lowing instructions:

We find that the circuit court here erred by failing to

interview Anderson as a preliminary step to deter-

mine his competence and the relevance of his testi-

mony. We therefore remand this case for such an in-

quiry. If both his competency and the relevance of

his testimony are established, the circuit court is to

grant defendant’s motion for a new trial. If for some

reason Anderson is unavailable, or unwilling, to

participate in the inquiry, or if the circuit court finds

him incompetent or his evidence irrelevant, we re-

tain jurisdiction in this matter.

Id.

Justice McCormick concurred in part and dissented in

part. Id. at 956–61. He agreed with the majority that the case

had to be remanded to determine Anderson’s competency to

testify, but he disagreed with the majority that the trial court

needed to address the relevance of Anderson’s testimony on

remand. Justice McCormick believed the majority had al-

ready decided that Anderson’s proffered testimony was rel-

evant, so a remand on this issue was unnecessary. Id. at 958.

He also disagreed with the majority’s treatment of Ma-

kiel’s other two claims and would have granted a new trial.

Id. at 956, 961. Justice McCormick analyzed the evidence

against Makiel in great detail, concluding that the evidence

was “far from overwhelming” and that the State’s case

“hinged largely on the credibility of Hlinko’s testimony at

trial, which was inconsistent with all of his many pretrial

Nos. 13-3076 & 13-3777 17

statements, some of which he made under oath.” Id. at 958.

The dissent emphasized that Hlinko’s plea agreement “gave

him a strong reason to lie,” that all of the physical evidence

that allegedly corroborated Hlinko’s trial testimony was

found before Hlinko accepted the plea deal, and that the al-

legedly corroborating testimony from Shane Miller and Al-

len Martin contradicted Hlinko’s testimony in several re-

spects. Id. at 959–60. Justice McCormick concluded:

“Hlinko’s testimony … is sufficient to support the conviction

if the jury chose to believe it, but the evidence is closely bal-

anced.” Id. at 961. The Supreme Court of Illinois denied

leave to appeal in October 1994.

E. Evidentiary Hearing and Appeal After Remand (Makiel II)

The evidentiary hearing took place in December 1996 be-

fore a different trial judge. Tim Anderson and his mother

testified. The parties also entered stipulations regarding the

testimony of police officers who investigated Anderson’s

statement at the time of his hospitalization in 1990.

Anderson recanted his earlier story implicating “Jay” in

the gas station murder. He testified that in October 1988, the

month the crime occurred, he was nine years old and that at

the time of the murder, he did not know Jay or the other

boys mentioned in his story. He did not meet them until

1990—approximately two years after Hoch was murdered.

He explained that he had fabricated the entire story to retali-

ate against the boys for bullying him.

After the hearing, the trial court stated its findings about

Anderson’s competency and the relevance of his testimony.

On the issue of competency, the court found that Anderson

was “intellectually challenged” at the time of Makiel’s trial,

18 Nos. 13-3076 & 13-3777

but that it did not have sufficient information to determine

his competency to testify at the time of trial. It did find,

however, that Anderson “was competent to testify at the De-

cember 30, 1996 hearing.”

On the issue of relevance, the court found that Anderson

first told the story about Jay and the gas station murder to a

psychiatrist or counselor in October 1990 while he was a

psychiatric patient at a hospital. The court also found that

Anderson told the same story to police the following month

and then again to Makiel’s attorney sometime before his trial

in February 1991. The court found that Anderson recanted

the story for the first time four years later, in February 1995.

The trial court concluded:

Further, based upon his not telling the story until

two (2) years after the event, that his story is totally

[uncorroborated], his propensity to lie at an early

age, his motive to fabricate, the fact that no one ever

believed his story and his subsequent recantation of

his story of the October 19, 1988 events involving

his friend, I find that his testimony would be remote

and speculative and, therefore, would not be rele-

vant.

Supp. App. 26.

Makiel appealed, arguing that the trial court erred by de-

termining that Anderson’s testimony was irrelevant, and that

in any event the principles of Chambers v. Mississippi, 410 U.S.

284 (1973), required its admission. The state appellate court

affirmed. People v. Makiel, No. 1-97-2140, slip op. (Ill. App.

June 8, 1998) (“Makiel II”). Apparently focusing on the rele-

vance of Anderson’s hearing testimony rather than his prof-

Nos. 13-3076 & 13-3777 19

fered testimony at Makiel’s trial, the appellate court held that

Anderson’s “testimony” would have been irrelevant because

it had been fabricated and therefore was not “material to es-

tablishing [Makiel’s] guilt.” Supp. App. 29.

The court then addressed the Chambers argument, refer-

ring to the excluded evidence as Anderson’s “prior state-

ments.” The court held that these “prior statements” consti-

tuted “inadmissible hearsay” and could be excluded under

Chambers because they lacked insufficient indicia of reliabil-

ity. Supp. App. 30–31. Citing Chambers, the court explained

that “[w]hen judging the admissibility of [Anderson’s] decla-

ration, it must be determined whether the declaration was

made under circumstances that provide ‘considerable assur-

ance’ of its reliability by objective indicia of trustworthiness.”

Id. at 31. It then concluded that Anderson’s “prior state-

ments” did not satisfy these criteria. Id. The Supreme Court

of Illinois again denied leave to appeal in October 1998.

F. State Post-Conviction Proceedings (Makiel III)

While still awaiting the evidentiary hearing on Tim An-

derson’s excluded testimony, Makiel filed a motion for post-

conviction relief in June 1995 under 725 Ill. Comp. Stat.

5/122-1 et seq. Makiel argued that his appellate counsel was

constitutionally ineffective because she did not argue in his

direct appeal that the trial court erred by excluding (1) Allen

Martin’s pending forgery charge and (2) Brian Spodach’s tes-

timony about the reputations of Martin and Shane Miller.

Makiel’s petition was initially stayed pending completion of

his direct appeal and eventually denied without an eviden-

tiary hearing.

20 Nos. 13-3076 & 13-3777

The state appellate court unanimously reversed, holding

that Makiel had made a substantial showing of a deprivation

of his Sixth Amendment right to effective assistance of coun-

sel. People v. Makiel, 830 N.E.2d 731 (Ill. App. 2005) (“Makiel

III”). On both of Makiel’s claims of ineffective assistance of

appellate counsel, the court ordered an evidentiary hearing

because his petition raised “unanswered questions of fact as

to the strategy which motivated appellate counsel” not to

challenge the trial court’s evidentiary rulings. Id. at 745, 748.

The court noted, however, that it was not taking a position

on whether Makiel could ultimately prove his claims. Id. at

749.

G. Evidentiary Hearing and Appeal After Remand (Makiel

IV)

The evidentiary hearing was held on March 14 and

April 4, 2008. Makiel presented the testimony of the assistant

public defender who represented him in his original appeal.

She testified that she could not explain why she did not chal-

lenge either of the trial court’s evidentiary rulings. She also

testified that she did not remember “specifically considering

and rejecting” the two issues. The lawyer explained, howev-

er, that she reviewed the trial record and Makiel’s post-trial

motion, consulted with her supervisor about which issues to

raise, and discussed her strategy with Makiel during the ap-

peal. At the conclusion of the hearing, the trial court denied

Makiel’s petition.

Makiel appealed again, and this time the state appellate

court affirmed. People v. Makiel, No. 1-08-0921, 2011 WL

9548460, at *1 (Ill. App. Sept. 28, 2011) (“Makiel IV”). The ap-

pellate court held that the trial court had erred when it

barred evidence of Martin’s pending forgery charge, but that

Nos. 13-3076 & 13-3777 21

appellate counsel was not constitutionally ineffective for fail-

ing to raise the issue because she “reasonably could have de-

termined” that such a challenge “would not have been a

meritorious issue on appeal.” Id. at *14. The court also held

that Makiel had not established prejudice from appellate

counsel’s failure to raise the issue. Id.

On Makiel’s claim for failure to appeal the exclusion of

Spodach’s testimony about reputation, the state appellate

court relied on a purported state-law rule that Makiel failed

to satisfy the burden of proof applicable to third-stage post-

conviction proceedings because he relied exclusively on his

initial proffer and failed to present additional evidence to

support his claim. Id. (As explained below, the State con-

cedes on appeal that state law imposed no such requirement

on Makiel.) The court also concluded that Makiel had failed

to establish prejudice from appellate counsel’s failure to raise

this issue. Id. at *15. Once more, the Supreme Court of Illi-

nois denied leave to appeal in January 2012.

H. Federal Habeas Petition

In December 2012, Makiel filed a petition for a writ of

habeas corpus in federal district court raising claims about

the prosecutor’s remarks during closing arguments, the trial

court’s exclusion of Tim Anderson’s testimony, and appellate

counsel’s failure to challenge the trial court’s evidentiary rul-

ings on Martin’s pending forgery charge and Spodach’s rep-

utation testimony. The district court denied the petition

without an evidentiary hearing and granted a certificate of

appealability limited to the claim about the prosecutor’s re-

marks. United States ex rel. Makiel v. Atchison, No. 12 CV 9644,

2013 WL 4538583, at *19 (N.D. Ill. Aug. 27, 2013). We granted

Makiel’s motion to expand the certificate of appealability to

22 Nos. 13-3076 & 13-3777

include his other claims. On appeal, Makiel has abandoned

the claim about closing arguments and raises only the claims

about appellate counsel’s failure to challenge the evidentiary

rulings and the trial court’s exclusion of Anderson’s testimo-

ny.

II. Habeas Corpus Review Under 28 U.S.C. § 2254

We have jurisdiction under 28 U.S.C. § 2253(a), and we

review de novo the district court’s denial of habeas corpus re-

lief. E.g., Harris v. Thompson, 698 F.3d 609, 622 (7th Cir. 2012).

Federal courts have authority to issue writs of habeas corpus

for persons in state custody under § 2254, as amended by the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). Under AEDPA, a federal habeas petition may be

granted only if a state court’s ruling on a federal constitu-

tional question “was contrary to, or involved an unreason-

able application of, clearly established Federal law, as de-

termined by the Supreme Court,” or “was based on an un-

reasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1) & (2).

The standard under AEDPA is “difficult to meet” and

“highly deferential.” Cullen v. Pinholster, 563 U.S. —, 131 S.

Ct. 1388, 1398 (2011). Federal courts must avoid “using fed-

eral habeas corpus review as a vehicle to second-guess the

reasonable decisions of state courts.” Parker v. Matthews, 567

U.S. —, 132 S. Ct. 2148, 2149 (2012) (per curiam), quoting Re-

nico v. Lett, 559 U.S. 766, 779 (2010). A petitioner cannot pre-

vail by showing simply that the state court’s decision was

wrong. E.g., White v. Woodall, 572 U.S. —, 134 S. Ct. 1697,

1702 (2014). A petitioner “must show that the state court’s

ruling on the claim being presented in federal court was so

Nos. 13-3076 & 13-3777 23

lacking in justification that there was an error well under-

stood and comprehended in existing law beyond any possi-

bility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011). Our review under § 2254(d) is limited

to the record that was before the state court. Pinholster, 131 S.

Ct. at 1398.

AEDPA’s deferential standard of review applies only to

claims that were actually “adjudicated on the merits in State

court proceedings.” 28 U.S.C. § 2254(d). Where state courts

did not reach a federal constitutional issue, § 2254(d) defer-

ence applies “only to those issues the state court explicitly

addressed.” Quintana v. Chandler, 723 F.3d 849, 853 (7th Cir.

2013), citing Wiggins v. Smith, 539 U.S. 510, 534 (2003). The

operative decision under review is that of the last state court

to address a given claim on the merits. See Greene v. Fisher,

565 U.S. —, 132 S. Ct. 38, 45 (2011).

III. Ineffective Assistance of Counsel

The Sixth Amendment provides that “the accused shall

enjoy the right to … have the Assistance of Counsel for his

defence.” To demonstrate that his right to counsel was vio-

lated by ineffective assistance, Makiel must satisfy the famil-

iar two-prong test set forth in Strickland v. Washington, 466

U.S. 668 (1984). First, he must show that his counsel’s per-

formance was deficient because it “fell below an objective

standard of reasonableness.” Id. at 687–88. Second, he must

show that the deficient performance prejudiced the defense,

which means that “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceed-

ing would have been different.” Id. at 694.

24 Nos. 13-3076 & 13-3777

A. Standard of Review

Under AEDPA, “the bar for establishing that a state

court’s application of the Strickland standard was ‘unreason-

able’ is a high one.” Allen v. Chandler, 555 F.3d 596, 600 (7th

Cir. 2009). “When § 2254(d) applies, the question is not

whether counsel’s actions were reasonable. The question is

whether there is any reasonable statement that counsel satis-

fied Strickland’s deferential standard.” Harrington, 562 U.S. at

105.

B. Performance

To establish deficient performance under Strickland, Ma-

kiel must identify acts or omissions by counsel that fell be-

low an objective standard of reasonableness and could not

have been the result of professional judgment. Strickland, 466

U.S. at 688, 690. “The question is whether an attorney’s rep-

resentation amounted to incompetence under ‘prevailing

professional norms,’ not whether it deviated from best prac-

tices or most common custom.” Harrington, 562 U.S. at 105,

quoting Strickland, 466 U.S. at 690. “The court must then de-

termine whether, in light of all the circumstances, the identi-

fied acts or omissions were outside the wide range of profes-

sionally competent assistance.” Strickland, 466 U.S. at 690. To

avoid the distorting effects of hindsight, “counsel is strongly

presumed to have rendered adequate assistance and made

all significant decisions in the exercise of reasonable profes-

sional judgment.” Id.

1. Ineffective Assistance of Appellate Counsel

The general Strickland standard governs claims of ineffec-

tive assistance of appellate counsel as well as trial counsel,

Smith v. Robbins, 528 U.S. 259, 285 (2000), but with a special

Nos. 13-3076 & 13-3777 25

gloss when the challenge is aimed at the selection of issues

to present on appeal. Appellate counsel is not required to

present every non-frivolous claim on behalf of her client.

E.g., Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996). “This

process of ‘winnowing out weaker arguments on appeal and

focusing on’ those more likely to prevail, far from being evi-

dence of incompetence, is the hallmark of effective appellate

advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986), quoting

Jones v. Barnes, 463 U.S. 745, 751–52 (1983). In fact, when ap-

pellate judges address professional education programs on

appellate practice, they almost always stress this need for

careful selection of just a few issues on appeal. “Lawyers

must curtail the number of issues they present, not only be-

cause briefs are limited in length but also because the more

issues a brief presents the less attention each receives, and

thin presentation may submerge or forfeit a point.” Knox v.

United States, 400 F.3d 519, 521 (7th Cir. 2005).

Because appellate counsel is not required to raise every

non-frivolous issue on appeal, appellate counsel’s perfor-

mance is deficient under Strickland only if she fails to argue

an issue that is both “obvious” and “clearly stronger” than

the issues actually raised. E.g., Brown v. Finnan, 598 F.3d 416,

425 (7th Cir. 2010); Lee v. Davis, 328 F.3d 896, 900–01 (7th Cir.

2003). Proving that an unraised claim is clearly stronger than

a claim that was raised is generally difficult “because the

comparative strength of two claims is usually debatable.”

Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013) (reversing

denial of habeas relief in unusually clear case of ineffective

assistance in selecting appellate issues).

26 Nos. 13-3076 & 13-3777

2. Appellate Counsel’s Process for Selecting the Issues

In this case, evidence shows that Makiel’s appellate coun-

sel approached the selection process diligently. At the evi-

dentiary hearing, which occurred a full sixteen years after

the direct appeal, the lawyer explained what she remem-

bered about her process for selecting the issues. She admit-

ted that she could not explain why she did not appeal the

trial court’s evidentiary rulings about Martin’s pending for-

gery charge and Spodach’s reputation testimony. She also

testified that she could not remember “specifically consider-

ing and rejecting” these issues. She explained, however, that

she reviewed the trial record, including the documents in the

record, transcripts of the relevant proceedings, and Makiel’s

post-trial motion, which raised no fewer than 54 different

issues. She also testified that she made notes of the issues she

could possibly raise, discussed the case and the potential is-

sues with her supervisor at the appellate defender’s office,

and discussed the appeal with Makiel by letter and over the

phone during the appeal. She also filed a petition for leave to

appeal with the Supreme Court of Illinois after losing on two

of the three issues she raised.

3. The Issues Actually Raised on Direct Appeal

Makiel’s appellate counsel chose to present three relative-

ly strong issues on direct appeal: (1) whether the trial court

erred by failing to suppress Makiel’s pretrial statement,

which was given after Miranda warnings and after he had

been represented by counsel in the extradition proceeding;

(2) whether the prosecutor’s closing arguments were im-

proper; and (3) whether the trial court improperly excluded

Nos. 13-3076 & 13-3777 27

Anderson’s testimony. Counsel prevailed on the issue of An-

derson’s testimony. On the suppression issue, the panel ma-

jority noted that no case was “directly on point” and strug-

gled to reconcile several cases pointing in opposite direc-

tions. See Makiel I, 635 N.E.2d at 952. On the closing-

argument issue, Makiel’s counsel did not simply present a

bare-bones criticism of the prosecutor’s closing argument.

She criticized several types of comments by the prosecutor,

all of which had some force: comments about facts not in ev-

idence, comments about defense counsel’s failure to call alibi

witnesses, and comments that arguably shifted the burden of

proof to the defense. See id. at 955–56. One justice on the

panel dissented on both of these issues. See id. at 957, 961

(McCormick, J., concurring in part and dissenting in part).

4. Allen Martin’s Pending Forgery Charge

Having described counsel’s process for selecting the is-

sues to raise and the issues she actually raised, we now turn

to counsel’s failure to appeal the trial court’s exclusion of Al-

len Martin’s pending forgery charge. Makiel argues that this

issue was obvious and clearly stronger than the suppression

issue and the issue about the prosecutor’s closing arguments.

The pending charge was, according to Makiel, critical im-

peachment evidence because it would have caught Martin in

a blatant lie, shown that he had an incentive to seek favor

with the government, and revealed that he had been accused

officially of deception.

The state court held that the trial court erred when it ex-

cluded this evidence at trial. Makiel IV, 2011 WL 9548460, at

*13. Nevertheless, it concluded that appellate counsel was

not deficient in failing to appeal this error because she “rea-

sonably could have determined” that it “would not have

28 Nos. 13-3076 & 13-3777

been a meritorious issue on appeal.” Id. at *14. This was a

merits adjudication, so we apply AEDPA deference and ask

“whether there is any reasonable argument that counsel sat-

isfied Strickland’s deferential standard.” Harrington, 562 U.S.

at 105.

The state court’s decision that appellate counsel’s perfor-

mance was not deficient for failing to appeal the forgery is-

sue was a reasonable application of Strickland. Although we

agree with Makiel that this issue was an obvious issue to ap-

peal, we disagree that it was so clearly stronger than the is-

sues actually raised that the state court was required to find

ineffective assistance of counsel under Strickland. On the rec-

ord before the state court, it was reasonable to conclude that

appellate counsel reasonably decided not to raise this issue

because she predicted that the error might well be deemed

harmless. Even if appellate counsel’s prediction might have

been incorrect (which we do not decide), there is at least a

reasonable argument that counsel satisfied the deferential

Strickland standard, which means that we may not disturb

the state court conviction on this ground under AEDPA.

A split decision under the circumstances, although not

dispositive, supports our conclusion that it was not unrea-

sonable for the state court to conclude that the issue was not

clearly stronger than the issues raised. This is not a case like

Shaw v. Wilson, for example, where the single claim actually

raised was so weak that pursuing it “was the equivalent of

filing no brief at all.” 721 F.3d 908, 915 (7th Cir. 2013). In

Shaw appellate counsel failed to raise the promising issue

that an Indiana statute, which limited the time for amending

charging documents, barred the State from belatedly amend-

ing the charge from aggravated battery to murder. Id. at 916.

Nos. 13-3076 & 13-3777 29

Instead, appellate counsel filed a brief challenging only the

sufficiency of the evidence but inexplicably conceded on ap-

peal that the evidence could support either conviction or ac-

quittal. In light of that concession, we said, the only argu-

ment raised was “dead on arrival.” Id. at 915. Here, by con-

trast, the three issues appellate counsel raised were much

stronger. She drew a remand on one and a dissent on the

other two.

No rule limited Makiel’s counsel to just the three issues

on appeal. We assume she could have raised the Martin for-

gery issue in addition to those she actually raised. Neverthe-

less, given the emphasis in appellate practice on not raising

too many different issues and thus not diluting or burying

an appellant’s strongest points, we see no unreasonable ap-

plication of the Strickland standard by the state courts. See

Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (selection

of proper issues is one of most important parts of appellate

advocacy, and too many issues can distract appellate judges

from stronger issues; appellate counsel who raised only one

relatively weak issue was deficient but performance did not

prejudice defendant). In fact, the evidence of effective assis-

tance in the selection of issues is substantial here, particular-

ly when we recall the results with the issues actually raised.

Makiel counters with reasons appellate counsel should

have doubted the merits of two of the arguments she raised

on appeal. First, he argues that because the case law was un-

settled on the suppression issue, it was necessarily weaker

because the trial court’s error in excluding the pending for-

gery charge was clearly established under settled law. Sec-

ond, he argues that the closing-argument issue was clearly

weaker because attorneys are given wide latitude in closing

30 Nos. 13-3076 & 13-3777

arguments and the standard of review is deferential to the

trial court. Neither point persuades us that the state court

was required to find deficient performance under Strickland.

Makiel’s position fails to account for the possibility that

appellate counsel declined to raise the forgery issue because

she predicted that the panel would deem the error harmless.

Identifying a harmless error does not yield success on ap-

peal. Appellate counsel’s ultimate goal in selecting issues is

to “maximize the likelihood of success.” Smith, 528 U.S. at

288. Counsel must persuade the appellate court first that the

trial court erred and then that the error was harmful. Ac-

cordingly, even if there is no doubt that a trial court made an

error, appellate counsel can decline to raise an issue when

she reasonably believes the error would be deemed harm-

less. See Howard, 225 F.3d at 790–91 (harmless-error doctrine

and the standard of review are appropriate factors for appel-

late counsel to consider when selecting issues).

Here, applying the AEDPA standard under 28 U.S.C.

§ 2254(d)(1), it was not unreasonable for the state court to

conclude that appellate counsel could have reasonably pre-

dicted that the trial court’s exclusion of the pending forgery

charge would likely be deemed harmless. Under Illinois law,

this error would have been reviewed for harmless error un-

der Chapman v. California, 386 U.S. 18 (1967). See People v.

Young, 538 N.E.2d 461, 469–70 (Ill. 1989), citing Delaware v.

Van Arsdall, 475 U.S. 673, 684 (1986) (improper denial of de-

fendant’s opportunity to impeach a witness for bias is subject

to harmless-error analysis). The harmless-error standard

asks whether the State can “prove beyond a reasonable

doubt that the error complained of did not contribute to the

verdict.” Chapman, 386 U.S. at 24. The excluded impeach-

Nos. 13-3076 & 13-3777 31

ment evidence affected only Martin’s credibility. The state

court reasonably determined that appellate counsel reason-

ably could have predicted that the issue would not likely

have led to reversal because the evidence did not directly

undermine Hlinko’s testimony. Hlinko’s testimony—not

Martin’s—was the linchpin of the prosecution’s case, and it

was corroborated by other evidence at trial. 2

To be clear, we do not doubt the impeachment value of

Martin’s pending forgery. Although Martin had been im-

peached by other means, the pending forgery charge would

have caught him in a blatant lie (he had flatly denied the

charge on the stand), shown that he had an incentive to seek

favor with the government, and revealed that he had been

accused officially of deception. As the State correctly con-

ceded in oral argument, this excluded impeachment evi-

dence was not cumulative because it was different in kind

from the other impeachment evidence offered at trial. See

United States v. Wilson, 481 F.3d 475, 480–81 (7th Cir. 2007)

(impeachment evidence not cumulative when it represents

2

Recall that Hlinko testified that he, Ilich, and Makiel were at the gas

station in the distinctive blue Cutlass on the night of the murder. Ma-

kiel’s pre-indictment statement to police that he was at the gas station

that evening corroborated this aspect of Hlinko’s testimony. John Miller

testified that he had loaned the Cutlass to Makiel, and that he noticed

from the condition of the car the day after the murder that it had been

driven the previous night. This, too, corroborated Hlinko’s testimony.

Hlinko also testified that Makiel disposed of the victim’s purse in an al-

ley near Ilich’s house, which was corroborated by testimony from a sani-

tation worker who found the purse in an alley matching Hlinko’s de-

scription.

32 Nos. 13-3076 & 13-3777

“a new and potentially powerful line of inquiry”); Redmond

v. Kingston, 240 F.3d 590, 591–92 (7th Cir. 2001) (same).

Nevertheless, it was not unreasonable for the state court

to decide that appellate counsel could have reasonably pre-

dicted that the damage it could have done to Martin’s credi-

bility would not have extended to Hlinko and that, as a re-

sult, the appellate court might well find that its exclusion

would not satisfy the Chapman standard. Cf. People v. Rosario,

536 N.E.2d 756, 760 (Ill. App. 1989) (“The improper limita-

tion of cross-examination does not warrant reversal where

there is no showing of manifest prejudice to defendant, and

where the prosecution’s case does not stand or fall based up-

on the credibility of that witness.”); see generally Van Arsdall,

475 U.S. at 684 (applying Chapman standard to improper lim-

it on cross-examination of prosecution witness calls for anal-

ysis of “a host of factors”); United States v. Petitjean, 883 F.2d

1341, 1348 (7th Cir. 1989) (finding limit on impeachment of

government witness was harmless).

Makiel disagrees, pointing out that Martin corroborated

one aspect of Hlinko’s testimony that no other evidence cor-

roborated: the precise time of the murder. Consistent with

the State’s theory of when the murder happened, Hlinko tes-

tified that Makiel shot the victim inside the gas station at

approximately 11:00 p.m. Martin testified similarly, but, ac-

cording to Makiel, no other evidence corroborated that time-

line.

The problem is that the specific timing of the murder was

not essential to the State’s case against Makiel. Suppose for

the sake of argument that the jury would have discredited

Martin’s testimony entirely if defense counsel had been al-

lowed to introduce the pending forgery charge. That would

Nos. 13-3076 & 13-3777 33

not necessarily mean that the jury would have discredited

Hlinko’s testimony, especially in light of the other corrobo-

rating evidence. At best, Hlinko’s testimony about the timing

of the murder might have gone uncorroborated. But even if

the jury rejected the State’s theory of the specific timing of

the murder, that alone would not necessarily establish rea-

sonable doubt as to Makiel’s guilt. As a result, the state court

did not apply Strickland unreasonably in finding that appel-

late counsel’s decision not to pursue the forgery issue did not

fall outside the wide range of professionally competent as-

sistance.

But suppose that appellate counsel miscalculated and the

panel would have found the exclusion of the pending for-

gery charge harmful under Chapman. Makiel still has not

shown that the state court’s application of Strickland was un-

reasonable. A miscalculation constitutes deficient perfor-

mance only where the miscalculation was objectively unrea-

sonable. “Strickland does not guarantee perfect representa-

tion, only a reasonably competent attorney.” Harrington, 562

U.S. at 110 (citations and internal quotation marks omitted).

There is “no expectation that competent counsel will be a

flawless strategist or tactician,” and an attorney is not in-

competent simply because of a “reasonable miscalculation.”

Id. The decision whether to raise the forgery issue was a

judgment call that required an assessment of a long trial rec-

ord and a host of issues, several of which could have been

part of a competent appeal. Under the circumstances, we

cannot say that appellate counsel’s selection of the issues so

clearly fell outside the wide range of professionally compe-

tent assistance that the state court was required to find defi-

cient performance.

34 Nos. 13-3076 & 13-3777

We recognize that even “an isolated error” can support

an ineffective assistance of counsel claim if it is “sufficiently

egregious and prejudicial.” Murray v. Carrier, 477 U.S. 478,

496 (1986). But “it is difficult to establish ineffective assis-

tance when counsel’s overall performance indicates active

and capable advocacy.” Harrington, 562 U.S. at 111. Here,

there is strong circumstantial evidence that appellate counsel

performed her job capably. She reviewed the record, consult-

ed with her supervisor about which issues to raise, and dis-

cussed her strategy with Makiel during the appeal. True, she

also testified that she did not remember considering the spe-

cific issue of the trial court’s exclusion of the pending forgery

charge and could not explain why she failed to raise it. That

is not surprising when the evidentiary hearing took place

sixteen years after the appeal, and Makiel’s post-trial motion

in the district court raised 54 different issues, all of which

appellate counsel had to sift through and evaluate.

If there were evidence in the record indicating that coun-

sel was neglectful or that she otherwise failed to comply

with prevailing professional norms of appellate representa-

tion, our conclusion might be different. On this record, in

light of appellate counsel’s relative success on appeal and

her hearing testimony that she prepared diligently, the state

courts could reasonably conclude that Makiel had failed to

rebut the Strickland presumption of adequate assistance. See,

e.g., Yarborough v. Gentry, 540 U.S. 1, 8–9 (2003) (per curiam)

(state court decision not unreasonable under AEDPA where

counsel omitted certain issues from closing argument but

petitioner failed to rebut the presumption of adequate assis-

tance).

Nos. 13-3076 & 13-3777 35

In sum, the state court did not unreasonably apply Strick-

land in evaluating appellate counsel’s failure to appeal the

exclusion of Martin’s pending forgery charge. This issue, al-

though obvious, was not so clearly stronger than the issues

raised on appeal that the state court was required to find de-

ficient performance under Strickland. In addition, there is

strong circumstantial evidence that appellate counsel per-

formed her job capably. Even if the state court did not reach

the correct result under Strickland, it at least reached a rea-

sonable one, which is sufficient under § 2254(d) to require

denial of relief on this basis.

5. Brian Spodach’s Reputation Testimony

Appellate counsel also did not raise the exclusion of Bri-

an Spodach’s testimony about the reputations of Allen Mar-

tin and Shane Miller. Before we resolve the merits, we first

address a threshold issue about the standard of review for

this issue. The parties dispute whether we should consider

Makiel IV or the state trial court’s decision reviewed in Makiel

IV as the last state court decision on the merits of this claim.

Makiel tells us to look at Makiel IV, which is the state appel-

late court’s decision after the evidentiary hearing in which

appellate counsel testified. The appellate court held that ap-

pellate counsel’s failure to challenge the trial court’s exclu-

sion of Spodach’s reputation testimony was not prejudicial,

but it did not decide the issue of performance. The State, on

the other hand, argues that we should look instead to the

state trial court’s decision at the evidentiary hearing. At the

conclusion of the evidentiary hearing, the state trial court

held that appellate counsel’s failure was not deficient per-

formance, but it did not address the issue of prejudice. The

State argues that we should “look through” Makiel IV and

36 Nos. 13-3076 & 13-3777

consider the state trial court’s decision instead because Ma-

kiel IV incorrectly relied on an invalid or non-existent state

procedural rule. Cf. Ylst v. Nunnemaker, 501 U.S. 797, 806

(1991) (describing situation where federal court will “look

through” unexplained decisions to consider earlier reasoned

decision). 3

Because we conclude that Makiel is not entitled to relief

on his claim even if we consider Makiel IV the last state court

decision on the merits, we do not need to resolve this ques-

tion. Accordingly, we assume, without deciding, that Makiel

IV is the relevant “adjudication on the merits” within the

meaning of § 2254(d). Makiel IV addressed only the issue of

prejudice, so we review the issue of performance de novo. See

Quintana v. Chandler, 723 F.3d 849, 853 (7th Cir. 2013), citing

Wiggins v. Smith, 539 U.S. 510, 534 (2003).

Now to the merits. Assuming that de novo review applies,

we conclude that appellate counsel’s failure to challenge the

exclusion of Brian Spodach’s reputation testimony was not

deficient under Strickland. Our conclusion follows from the

principles discussed above.

3

At the hearing, the only evidence Makiel presented on his claim

that appellate counsel unreasonably failed to challenge the trial court’s

exclusion of Brian Spodach’s reputation testimony was a stipulation that

Spodach would have testified at trial that Allen Martin and Shane Miller

had reputations in their community for untruthfulness. In Makiel IV, the

court held that this offer of proof was not itself “evidence,” so Makiel

failed to establish prejudice because he failed to present additional evi-

dence in support of his initial proffer. Makiel IV, 2011 WL 9548460, at *14.

The State concedes that Illinois law imposed no such requirement on

Makiel.

Nos. 13-3076 & 13-3777 37

We agree with Makiel that the trial court’s exclusion of

Spodach’s reputation testimony was an obvious error under

Illinois law. According to Makiel’s proffer at trial, Spodach

would have testified that Martin and Shane Miller had repu-

tations in the community as liars. See Makiel III, 830 N.E.2d

at 746–47 (summarizing Makiel’s proffer at trial). Under Illi-

nois law, defense counsel should have been permitted to in-

troduce this testimony as impeachment evidence. See id. at

747, citing Rosario, 536 N.E.2d at 760 (“Any witness may be

impeached by evidence showing generally a poor reputation

for truth and veracity.”), and People v. Nash, 222 N.E.2d 473,

475 (Ill. 1967) (same).

Although the trial court’s error was obvious, this issue

was not clearly stronger than the issues raised; indeed, it was

significantly weaker than even the trial court’s exclusion of

Martin’s pending forgery charge. Like the trial court’s exclu-

sion of Martin’s pending forgery charge, the exclusion of

Spodach’s reputation testimony would have been reviewed

for harmless error under Chapman. See People v. Bascomb, 392

N.E.2d 1130, 1133 (Ill. App. 1979) (applying Chapman harm-

less-error doctrine to exclusion of reputation evidence). Ap-

pellate counsel could have reasonably determined that the

trial court’s exclusion of this reputation evidence would like-

ly be deemed harmless. Two factors would have supported

this conclusion.

First, both Martin and Shane Miller were impeached by

other means, making the marginal value of this additional

impeachment evidence less important than it would have

been otherwise. Martin had already been impeached by evi-

dence that he had been drinking on the night of the murder

and that he denied who he was when first approached by a

38 Nos. 13-3076 & 13-3777

defense attorney. Shane Miller was impeached by other

means as well. Defense counsel introduced Spodach’s testi-

mony that he had not picked Miller up from Makiel’s house

on the night of the murder, contrary to Miller’s testimony.

Defense counsel also drew attention to Miller’s silence in the

five months following the murder and to Miller’s pretrial

statement, which he signed for Hlinko’s mother, indicating

that his statements to police inculpating Hlinko and Makiel

were untrue. Although reputation evidence from Spodach

would not have been strictly cumulative, its relative im-

portance was diminished by the fact that the jury already

had reason to doubt the credibility of Martin and Shane Mil-

ler. And evidence of this sort is generally weak evidence of

credibility anyway. Cf. Michelson v. United States, 335 U.S.

469, 480 (1948) (“Growth of urban conditions, where one

may never know or hear the name of his next-door neighbor,

have tended to limit the use of [this form of evidence] and to

deprive [it] of weight with juries.”); United States v. Burke,

781 F.2d 1234, 1239 (7th Cir. 1985) (noting limits of character

evidence).

Second, Spodach’s reputation testimony, if credited by

the jury, would have tended to undermine only Martin’s and

Shane Miller’s credibility, but it would not have directly un-

dermined Hlinko’s credibility. As explained above, the crux

of the State’s case was Hlinko’s testimony, which was corrob-

orated by other evidence. The jury could have completely

rejected Martin’s and Shane Miller’s testimony but still found

Makiel guilty beyond a reasonable doubt based on the other

evidence presented at trial.

Under these circumstances, we find that appellate coun-

sel could reasonably conclude there was too great a risk the

Nos. 13-3076 & 13-3777 39

state appellate court would find the exclusion of this im-

peachment evidence harmless. Cf. People v. Lavas, 446 N.E.2d

1188, 1193 (Ill. App. 1983) (noting that testimony about a

prosecution witness’s “general reputation for veracity would

not significantly alter the jury’s impression of his testimo-

ny”). This issue was not clearly stronger than the issues

raised on appeal.

Finally, as we consider this issue, we also keep in mind

the evidence of counsel’s process for selecting issues for the

appeal, including reviewing the record, reviewing Makiel’s

post-trial list of 54 issues, and conferring with a supervisor

and with Makiel himself. We are also conscious of the chal-

lenge of reconstructing her thought process more specifically

sixteen years after the fact. Appellate counsel’s performance

did not fall outside the wide range of professionally compe-

tent assistance permitted by Strickland.

IV. Compulsory Process

We turn finally to Makiel’s claim that the exclusion of

Tim Anderson’s testimony violated his right to compulsory

process under the Sixth and Fourteenth Amendments. Be-

fore resolving the merits of Makiel’s claim, we address an

issue about the standard of review and then examine the

significance of the state court’s reasoning.

A. Adjudication on the Merits

The parties agree that Makiel II is the last reasoned deci-

sion on this claim. They disagree, however, about whether

the court should review the decision de novo or through

AEDPA’s deferential lens. Makiel argues that de novo review

is appropriate because Makiel II relied primarily on state-law

evidence rules regarding relevance and hearsay. According

40 Nos. 13-3076 & 13-3777

to Makiel, the state court’s failure to “consider any federal

constitutional precedent” means that Makiel II did not adju-

dicate the merits of the federal claim and is therefore not

owed deference under § 2254(d). We disagree.

Deference under § 2254(d) does not require the state

court to have expressly considered federal law, much less to

have cited Supreme Court precedent. Harrington v. Richter,

562 U.S. 86, 98 (2011); Early v. Packer, 537 U.S. 3, 8 (2002) (per

curiam). Moreover, the state court opinion shows that the

court adjudicated Makiel’s federal claim on the merits. The

court cited Chambers v. Mississippi, 410 U.S. 284 (1973), and

held that the exclusion of Anderson’s testimony did not vio-

late Chambers because the testimony was not sufficiently reli-

able.

This is not a case like Harris v. Thompson, where the state

court’s reasoned explanation relied exclusively on state evi-

dence law and “did not hint at any federal (or state) constitu-

tional ground of decision.” 698 F.3d 609, 624 (7th Cir. 2012)

(applying de novo review to petitioner’s compulsory process

claim). Here, the state court explicitly considered and reject-

ed the federal claim while discussing and applying a rele-

vant Supreme Court precedent. It did not rely exclusively on

state evidence law.

B. The Significance of the State Court’s Reasoning

Makiel II decided Makiel’s claim on the merits, but as-

pects of the state court’s reasoning are troubling. In particu-

lar, the court characterized Anderson’s proffered testimony

as “hearsay” and concluded under Chambers that the exclu-

sion of this “hearsay” was constitutionally acceptable be-

cause his “extrajudicial declaration” about the circumstances

Nos. 13-3076 & 13-3777 41

of the murder did not bear sufficient indicia of reliability. See

Supp. App. 30–31. The fundamental problem with this anal-

ysis is that the lion’s share of Anderson’s proffered trial tes-

timony would not have been hearsay.

Anderson was available at trial and prepared to testify

that on the night of the murder, he drove to the gas station

with his friends Jay, Brandon, and Brian; saw Jay go inside

the gas station with a gun; heard a loud shot; observed Jay

return to the car; and then heard Jay confess to shooting

someone. The only aspect of this proffered testimony that

was actually hearsay was Jay’s supposed statement that he

“did it.” That confession, made by a third-party declarant,

was an out-of-court statement that would have been offered

to prove the truth of the matter asserted. Had the trial court

excluded only that aspect of Anderson’s testimony, Chambers

would have fit as the appropriate framework for deciding

whether Makiel’s compulsory process right was violated. See

Chambers, 410 U.S. at 300–01 (addressing third-party hearsay

confessions). 4

4

We doubt that Anderson’s testimony that Jay said he “did it” could

qualify for admission under Chambers or the Illinois hearsay exception

for statements against penal interest. See People v. Bowel, 488 N.E.2d 995,

999 (Ill. 1986) (“Generally an extrajudicial declaration not under oath, by

the declarant, that he, and not the defendant on trial, committed the

crime is inadmissible as hearsay though the declaration is against the

declarant’s penal interest.”). A statement of this sort satisfies the excep-

tion only when “the declaration was made under circumstances that

provide ‘considerable assurance’ of its reliability by objective indicia of

trustworthiness.” Id. at 1000, citing Chambers, 410 U.S. at 300–01, and Peo-

ple v. Tate, 429 N.E.2d 470 (Ill. 1981); see also Fed. R. Evid. 804(b)(3)(B)

(hearsay exception for statement against interest in a criminal case where

42 Nos. 13-3076 & 13-3777

But the remainder of Anderson’s proffered testimony was

first-hand recollection of events he claimed he had personal-

ly observed, none of which involved an out-of-court state-

ment. Mischaracterizing the entirety of Anderson’s testimo-

ny as “inadmissible hearsay” does not justify the conclusion

that Makiel’s right to compulsory process was not violated.

See Washington v. Texas, 388 U.S. 14, 23 (1967) (petitioner de-

nied compulsory process where “the State arbitrarily denied

him the right to put on the stand a witness who was physi-

cally and mentally capable of testifying to events that he had

personally observed”). 5

One aspect of the state court’s reasoning, however, is not

subject to this criticism. Independent of the court’s conclu-

sion that Anderson’s “prior statements” were “inadmissible

hearsay,” the court also concluded that there was no error

because “there is no indication Anderson’s testimony would

affect any fact which was material to establishing defend-

ant’s guilt.” Supp. App. 29. The court based this conclusion

on its review of the entire record, including the 1996 hearing

the statement is “supported by corroborating circumstances that clearly

indicate its trustworthiness”).

5

The cases cited by the State are distinguishable on precisely this ba-

sis. See Ruhl v. Hardy, 743 F.3d 1083, 1099–1100 (7th Cir. 2014) (no consti-

tutional error where defendant was denied opportunity to present testi-

mony from witness that unavailable third-party declarant had confessed

to crime); Cunningham v. Peters, 941 F.2d 535, 538–41 (7th Cir. 1991) (no

constitutional error where defendant was denied opportunity to present

testimony from defense investigator that unavailable third-party declar-

ant had confessed to crime).

Nos. 13-3076 & 13-3777 43

where Anderson methodically and completely recanted his

proffered trial testimony.

Ultimately, then, the state court’s flawed reasoning on

hearsay does not matter for our review under § 2254(d). The

court’s materiality determination did not rely on the court’s

mischaracterization of the testimony as hearsay. And, even if

it did, “a bad reason does not necessarily mean that the ul-

timate result was an unreasonable application of established

doctrine.” Brady v. Pfister, 711 F.3d 818, 827 (7th Cir. 2013);

see also Lopez v. Thurmer, 573 F.3d 484, 493 (7th Cir. 2009)

(noting that although the state court “applied the wrong

methodology in deciding the federal due process issue be-

fore it, it is not the court’s methodology but its result that we

review”). 6 We therefore apply AEDPA deference to the state

court’s decision and ask whether the state court committed

an error “beyond any possibility for fairminded disagree-

ment.” Harrington, 562 U.S. at 103.

C. Constitutional Standard

The Sixth Amendment guarantees the accused the right

“to have compulsory process for obtaining witnesses in his

favor.” This clause, together with the Due Process Clause of

the Fourteenth Amendment, “embodies a substantive right

to present a meaningful and complete criminal defense.”

6

See also Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (proper

inquiry under § 2254(d) is to examine “the ultimate legal conclusion

reached by the court,” not “merely the statement of reasons explaining

the state court’s decision”); Gill v. Mecusker, 633 F.3d 1272, 1291 (11th Cir.

2011) (same); Clements v. Clarke, 592 F.3d 45, 55–56 (1st Cir. 2010) (“It is

the result to which we owe deference, not the opinion expounding it.”).

44 Nos. 13-3076 & 13-3777

Harris v. Thompson, 698 F.3d 609, 626 (7th Cir. 2012). “The

right to offer the testimony of witnesses, and to compel their

attendance, … is in plain terms the right to present a de-

fense, the right to present the defendant’s version of the facts

as well as the prosecution’s to the jury so it may decide

where the truth lies.” Washington v. Texas, 388 U.S. 14, 19

(1967). This right is an “essential attribute of the adversary

system itself,” Taylor v. Illinois, 484 U.S. 400, 408 (1988), and

“imperative to the function of courts,” which “depend on

full disclosure of all the facts, within the framework of the

rules of evidence.” United States v. Nixon, 418 U.S. 683, 709

(1974).

In spite of its importance, this right is not unlimited. As a

general rule, the defendant “must comply with established

rules of procedure and evidence designed to assure both

fairness and reliability.” Chambers v. Mississippi, 410 U.S. 284,

302 (1973). Although the defendant’s interest in presenting

testimony of witnesses in his favor is fundamental, it must

“bow to accommodate other legitimate interests in the crim-

inal trial process,” Rock v. Arkansas, 483 U.S. 44, 55 (1987),

such as the “integrity of the adversary process, which de-

pends both on the presentation of reliable evidence and the

rejection of unreliable evidence, the interest in the fair and

efficient administration of justice, and the potential prejudice

to the truth-determining function of the trial process,” Taylor,

484 U.S. at 414–15. The Compulsory Process Clause thus

does not require criminal courts to admit evidence that is ir-

relevant, Crane v. Kentucky, 476 U.S. 683, 689–90 (1986), tes-

timony by persons who are mentally infirm, see Washington,

388 U.S. at 23 n.21, or evidence that represents a half-truth,

see United States v. Nobles, 422 U.S. 225, 241 (1975).

Nos. 13-3076 & 13-3777 45

To establish that his right to compulsory process was vio-

lated by the exclusion of Anderson’s testimony, Makiel must

show that (1) the testimony would have been “both material

and favorable” to his defense, United States v. Valenzuela-

Bernal, 458 U.S. 858, 867 (1982), and (2) the exclusion was

“arbitrary” or “disproportionate” to the evidentiary purpos-

es advanced by the exclusion, United States v. Scheffer, 523

U.S. 303, 308 (1998), quoting Rock, 483 U.S. at 56; see Harris,

698 F.3d at 627. To win federal habeas relief, he must show

that the state court’s decision was not merely wrong but un-

reasonably so, beyond the scope of reasonable disagreement

among fair-minded judges.

D. Application

The state court’s decision that Makiel was not denied his

right to compulsory process was not an unreasonable appli-

cation of clearly established federal law. On the record be-

fore the state court, which included Anderson’s 1996 hearing

testimony as well as the state trial court’s factual findings

from that hearing, it was not unreasonable for the state court

to conclude that Anderson’s testimony was not material.

The materiality standard of the Compulsory Process

Clause analysis is identical to the materiality requirement of

Brady v. Maryland, 373 U.S. 83 (1963). Harris v. Thompson, 698

F.3d 609, 627 (7th Cir. 2012), discussing Valenzuela-Bernal, 458

U.S. 858. “Under this standard, the exclusion of a witness is

material ‘only if there is a reasonable likelihood that the tes-

timony could have affected the judgment of the trier of

fact.’” Id., quoting Valenzuela-Bernal, 458 U.S. at 874.

Anderson’s proffered testimony would have satisfied this

materiality standard at the time of the trial. That is why Ma-

46 Nos. 13-3076 & 13-3777

kiel’s original appeal resulted in a remand for an evidentiary

hearing. Anderson was prepared to testify that on the night

of the murder he drove to the gas station with three young

friends, saw Jay leave the car and walk into the gas station

with a gun, heard a loud noise, and saw Jay return to the car.

Although the evidence against Makiel was sufficient to sus-

tain the conviction, we cannot say based on our review of

the trial record that the evidence was overwhelming. Cf. Ma-

kiel I, 635 N.E.2d at 958, 961 (McCormick, J., concurring in

part and dissenting in part) (analyzing trial record in great

detail and concluding that evidence was “far from over-

whelming” and “closely balanced”). Because the evidence of

guilt was not overwhelming and Anderson was prepared to

testify that another person committed the murder, there is a

reasonable likelihood that the exclusion of Anderson’s prof-

fered testimony affected the outcome.

But Makiel’s claim presents an unusual situation. Ander-

son recanted this proffer under oath at the 1996 hearing. He

testified at the hearing that he fabricated the story to retaliate

against three boys who had been bullying him. He explained

that he first told this story to a counselor or psychiatrist

while he was a psychiatric patient at a hospital, sometime in

October 1990—two years after the murder. He also explained

that he did not even know Jay at the time of the murder in

1988. At the conclusion of the evidentiary hearing, the state

court found as a matter of fact that police had investigated

his story in 1990 and could not corroborate it. On appeal

from the trial court’s decision at the evidentiary hearing, the

state appellate court held that in light of Anderson’s recanta-

tion and the lack of corroboration for the original proffered

trial testimony, Makiel had failed to demonstrate that the ev-

idence was material to the verdict.

Nos. 13-3076 & 13-3777 47

Makiel argues that the state court unreasonably applied

clearly established federal law when it rejected his compul-

sory process claim on the basis of the 1996 hearing. He con-

tends that the state court should have ignored Anderson’s

recantation and instead focused exclusively on the materiali-

ty of the initial proffer. If Anderson had been permitted to

testify at trial, Makiel maintains, he would have stuck to his

original story and a reasonable jury could have credited his

account and found reasonable doubt. According to Makiel,

Anderson’s recantation merely presents a disputed question

of fact that a jury must decide at a new trial. We disagree.

The question presented by these unusual facts is whether

the state court unreasonably applied clearly established fed-

eral law when it measured materiality in light of the entire

record rather than looking only at the trial record. In other

words, when a court determines whether the excluded tes-

timony is material, is it free to consider post-trial develop-

ments that bear directly on the reliability of the testimony, or

must it confine its review to the record at the time the trial

court excluded the evidence?

We think the weight of Supreme Court authority points

in the direction that a court is permitted to review the entire

record—not just the record at trial—when measuring mate-

riality in the context of a compulsory process claim. But be-

cause our review under § 2254(d) is deferential and asks on-

ly whether the state court unreasonably applied clearly es-

tablished federal law, we do not ultimately decide that ques-

tion. Instead, we hold only that because no Supreme Court

decisions clearly establish that a court considering materiali-

ty is barred from considering post-trial developments that

bear directly on the reliability of the excluded testimony,

48 Nos. 13-3076 & 13-3777

Makiel has failed to satisfy § 2254(d). See White v. Woodall,

572 U.S. —, 134 S. Ct. 1697, 1706 (2014) (“Section 2254(d)(1)

provides a remedy for instances in which a state court un-

reasonably applies this Court’s precedent; it does not require

state courts to extend that precedent or license federal courts

to treat the failure to do so as error.”).

Our conclusion is based on the nature of the constitu-

tional right at issue. In United States v. Agurs, 427 U.S. 97

(1976), the Supreme Court elaborated on the meaning of ma-

teriality. The Court explained that the “mere possibility that

an item of undisclosed information might have helped the

defense, or might have affected the outcome of the trial, does

not establish ‘materiality’ in the constitutional sense.” Id. at

109–10. Instead, materiality in the constitutional sense is tied

to the “overriding concern with the justice of the finding of

guilt.” Id. at 112. Accordingly, evidence is material only if the

evidence “creates a reasonable doubt that did not otherwise

exist.” Id.

To this end, Agurs instructed courts to evaluate the omis-

sion of the evidence “in the context of the entire record.” Id.

Agurs said this in a case where there had been no significant

post-trial developments bearing on the reliability of the

omitted evidence. It is possible, then, that the Court meant

“the entire trial record but nothing beyond that” when it said

“entire record.” But this possibility does not clearly establish

that a court should never consider post-trial developments

that bear directly on the reliability of the excluded evidence

in measuring materiality.

To the contrary, the purpose of the Compulsory Process

Clause supports the idea that a court can, at least under

some circumstances, consider the entire record when evalu-

Nos. 13-3076 & 13-3777 49

ating materiality. A defendant’s right to present witnesses in

his favor is not absolute. Courts must balance the defend-

ant’s interest in presenting evidence against “countervailing

public interests,” including the integrity of the adversary

process, the interest in the fair and efficient administration of

justice, and the potential prejudice to the truth-determining

function of the trial process. Taylor, 484 U.S. at 414–15; see

also Nobles, 422 U.S. at 241 (“The Sixth Amendment does not

confer the right to present testimony free from the legitimate

demands of the adversarial system; one cannot invoke the

Sixth Amendment as a justification for presenting what

might have been a half-truth.”).

Consider for a moment the extraordinary scenario that

Makiel contends would be mandated by the federal Consti-

tution. He says the state or federal courts should have vacat-

ed his conviction and ordered a new trial so that he could

call Anderson to testify about the story he told back in 1990,

which is (1) uncorroborated by any other evidence, (2) disa-

vowed by Anderson himself as a troubled boy’s misguided

effort to get back at other boys who had bullied him, and (3)

implausible on its face. Even if Anderson’s original state-

ments might somehow have been squeezed into evidence

after the recantation, a new trial for that purpose would have

been a strange farce, at least if the truth is supposed to re-

main important in a criminal trial. See Nix v. Whiteside, 475

U.S. 157, 175–76 (1986) (no prejudice under Strickland where

counsel refused to present perjured testimony, even though

jury might have believed the perjury and acquitted); see also

Lockhart v. Fretwell, 506 U.S. 364, 371–72 (1993) (rejecting peti-

tioner’s argument that prejudice under Strickland should be

evaluated under the laws existing at the time of trial and

concluding that prejudice “focuses on the question whether

50 Nos. 13-3076 & 13-3777

counsel’s deficient performance renders the result of the trial

unreliable or the proceeding fundamentally unfair”). 7

All three “countervailing public interests” identified by

the Court in Taylor tend to support the state court’s decision

to consider the entire record in this case. The state court

quite reasonably found Anderson’s recantation credible and

his initial proffered trial testimony not credible. The first

time he told the story implicating Jay, it was two years after

the crime and he was an eleven-year-old psychiatric patient.

Police investigated the story before Makiel’s trial and found

no corroborating evidence. At the hearing, Anderson ex-

plained that he did not even know Jay at the time of the

murder and that he made the story up to retaliate against the

three boys for bullying him. Under the circumstances, the

state court could have reasonably determined that (1) An-

derson’s omitted testimony was unreliable, (2) a new trial

would be pointless because no rational jury would find rea-

sonable doubt based on Anderson’s improbable and now-

recanted story, and (3) admitting this evidence at a new trial

would prejudice the truth-determining function of the trial

process. See Taylor, 484 U.S. at 414–15.

At bottom, the constitutional right Makiel invokes is “de-

signed to vindicate the principle that the ‘ends of criminal

justice would be defeated if judgments were to be founded

on a partial or speculative presentation of the facts.’” Id. at

7

These two cases involved Strickland claims, not compulsory process

claims. But the prejudice component of a Strickland claim is identical to

the materiality requirement of the Compulsory Process Clause analysis.

Harris v. Thompson, 698 F.3d 609, 627–28 (7th Cir. 2012).

Nos. 13-3076 & 13-3777 51

411, quoting United States v. Nixon, 418 U.S. 683, 709 (1974).

That principle applies here, where Makiel asks us to over-

turn a state court conviction based on a partial presentation

of the facts. Given the unusual circumstances of this case and

the absence of controlling Supreme Court precedent, we

cannot say the state court’s decision on Tim Anderson’s prof-

fered testimony was an unreasonable application of clearly

established law.

We AFFIRM the district court’s denial of Makiel’s petition

for a writ of habeas corpus.