Bell, Theodore v. Pierson, Mark A.

In the

United States Court of Appeals

For the Seventh Circuit

No. 00-4296

United States of America,

ex rel. Theodore Bell,

Petitioner-Appellee,

v.

Mark A. Pierson, Warden,

Hill Correctional Center,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 6467--Milton I. Shadur, Judge.

Argued March 27, 2001--Decided September 10, 2001

Before Bauer, Posner, and Manion, Circuit

Judges.

Manion, Circuit Judge. Petitioner

Theodore Bell, a former police officer,

was convicted in Illinois state court of

first-degree murder and aggravated

discharge of a firearm. He appealed his

conviction to the Illinois Appellate

Court, which affirmed. He then filed a

petition for leave to appeal with the

Illinois Supreme Court, which was denied.

Bell also filed a pro se petition for

post-conviction relief in the Circuit

Court. This too was denied, and the

Circuit Court’s decision was affirmed on

appeal. The Illinois Supreme Court denied

Bell’s petition for leave to file an

appeal on his petition for post-

conviction relief. Bell then filed

apetition for writ of habeas corpus in

federal district court. After an

evidentiary hearing, the petition was

granted. Respondent Mark Pierson, Warden

of the Hill Correctional Center, appeals.

We reverse.

I.

On January 19, 1992, Stanley Latham died

of multiple gunshot wounds. It is

undisputed that Bell did the shooting.

But the facts leading up to Latham’s

death are hotly contested. Because a

comparison of the trial evidence and the

habeas evidence presented to the district

court is crucial to this appeal, we set

forth that evidence in some detail.

At trial, Bell testified that he left

the Chic Rick’s bar on Michigan Avenue in

Chicago around 4:30 to 5:00 a.m. and

stopped to talk to friends. He witnessed

a fight between Latham and another

individual, Lethaniel Hood, and

intervened. Latham hit Bell, who fell to

the ground. Upon standing up, Bell

testified that he saw Latham putting his

hand in his pocket and he claims that he

thought Latham was reaching for a gun. He

therefore drew his gun and pointed it at

Latham. The bar’s security guard told

Bell to be calm, and Bell saw that Latham

had not drawn a gun. Bell then put his

gun away. Because the crowd was

frightened, Bell ran off to put his gun

inside a car. Then, while running, Bell

heard two gunshots, turned around, and

saw Latham standing at the door of

Latham’s car, apparently with a gun

pointed at Bell. Bell fired six times at

Latham, who then drove off. According to

Bell, he only shot at Latham out of fear

for his life.

Kerry Fortenberry, Demetrius Harper, and

Nicole Boyd, all of whom went out that

night with Latham, tell a different

story. According to Fortenberry, the bar

was closing at 4:30 a.m. and the four of

them departed. Latham and Fortenberry

went to get their cars, which they parked

near the bar; Boyd got into Latham’s car

and Harper got into Fortenberry’s car.

When Boyd went to Fortenberry’s car

toretrieve her coat, Latham walked back

to the bar. Fortenberry testified that

shortly thereafter, Harper saw someone in

a tan coat fall near the entrance to the

bar (apparently Bell), and Fortenberry

then saw Latham running to his car,

chased by three others. Fortenberry

testified that he was parked in front of

Latham and saw Bell shoot Latham as he

attempted to drive away from his parking

space. Fortenberry further testified that

Bell was an arm’s length from Latham when

he shot into the driver’s side window,

that he fired three shots before Latham

had left the parking space, and that he

continued to shoot at the car after it

had left. Fortenberry did not see a gun

in Latham’s car and had not seen Latham

use a gun that evening.

Demetrius Harper, seated in

Fortenberry’s car, testified that she

looked out the rear window and saw an

individual in a tan trench coat fall.

This individual got up and ran toward

their cars while holding a gun. Latham

ran to his car and got into it. Harper

then saw the man in the trench coat

attempt to open the door to Latham’s car,

and stated that this individual began

shooting when he was unsuccessful at

opening the door. She also testified that

she heard three shots before Latham

pulled away, and that she heard two more

shots and saw Latham’s rear window

shatter after he had driven off. Harper

identified Bell as the individual in the

tan coat from a lineup the following

morning. She also testified that she had

not seen Latham with a gun.

Nicole Boyd testified that after she

returned with her coat, she got into

Latham’s car. Minutes later, Latham

jumped into the car and tried to pull

away. He was unable to do so immediately

because a car was parked in front of his

car. An individual with a gun came up to

the driver’s side window. Although Boyd

could not see his face, he was wearing a

beige trench coat. Boyd heard gunshots,

felt the car move, and then heard three

additional shots. The car swerved and she

told Latham to stop. Latham responded

that he could not because he had been

shot and asked her to help. Boyd stepped

on the brake and turned off the ignition.

She identified Bell’s gun in court as the

one used by the shooter.

Another individual, Edward Jackson, was

also at Chic Rick’s with friends that

night. He exited the bar and saw Latham

fighting three men. Latham was hit, and

when he turned around, punched Bell, who

had just walked out of the bar and was

wearing a beige trench coat. Bell fell to

the ground and when he got up he drew a

gun. Bell then aimed the gun at Latham

who threw up his hands, which were empty.

A security guard walked out and told Bell

to calm down. As this happened, Latham

backed away and then started running.

Bell broke free from the guard and ran

after Latham with the gun in his hand.

Jackson then went to meet his friends by

their car. He heard five or six shots but

did not see the shooting.

Mark McClom, the bar security guard,

testified that he went outside the bar to

break up an argument between Latham,

Bell, and two of Bell’s friends. As he

returned to the bar, he noticed the men

exchange punches. McClom saw Latham hit

Bell, who fell. Bell pulled a gun, and

McClom lowered Bell’s arm. Bell then

aimed his gun at Latham, and Latham put

his hands up. At this point, McClom

grabbed Bell’s arm again. Latham ran

away, and seconds later Bell ran in the

same direction. McClom testified that he

never saw a gun in Latham’s hands, and he

did not see the actual shooting.

Leon Watson was with Bell and Lethaniel

Hood at the bar that evening. He

testified for the defense that he was

walking toward a pay telephone when he

heard a commotion. Watson saw Latham

punch Bell, who fell. Latham then ran

off. Watson went towards his car with

Hood, and Bell was ahead of him. Watson

testified that he saw Latham leaning into

Latham’s car door "because I saw the car

door open" and heard a man say "he has a

gun." He then heard gunfire and ducked

behind a car, but he did not see who was

firing the gun. He heard seven or eight

more shots, and when he peered around the

corner of the car he saw Bell walking to

wards them.

Lethaniel Hood testified that he was

standing outside the bar with Bell and

Watson when Latham started a fight with

Hood. Hood testified that Latham

threatened to "bust a cap and ’f’ me up."

Bell got involved, and Latham made the

same threat to Bell. Latham hit Bell in

the nose, and hit him again in the mouth,

at which point Bell fell down. At one

point, Hood fell, and when he got up

Latham was running across the sidewalk

towards the street. Hood, Bell, and

Watson were all behind him. Hood

testified that he heard someone "say he

had a gun" which Hood assumed meant

Latham. Hood started backing up, heard a

couple of gunshots, and "got down." He

heard seven or eight gunshots in total.

Hood stated that he didn’t really see

what had happened; when Latham got to his

car Latham stooped down in the car, then

stood up, after which Hood heard the

shots.

Richard Bednarek, a Chicago police

officer, was parked a block away when the

shooting occurred. Bednarek testified

that when he approached Latham’s car

after the shooting, he saw that the rear

and driver’s side rear door windows were

shattered, and the driver’s side window

was "spiderwebbed" with cracks. Bednarek

also testified that Latham had nothing in

his hands, and a vehicle search produced

no weapons. When Bednarek realized that

Latham was "in a lifeless state," he and

another officer removed Latham from the

car. At that time, Bednarek did not

observe or feel a weapon on Latham’s

body. Although Latham was taken to the

hospital, he died that morning.

Chicago police officer Raynor Ricks and

his partner, John Butler, searched

Latham’s car, and they also found no

weapons. Ricks testified that both door

windows on the driver’s side of the car

as well as the rear window were broken.

There were bullet holes in the driver’s

side and left passenger’s rear doors, and

there was also a bullet hole in the roof

and in the deck between the rear window

and back seat. Shell casings from a gun

different from Bell’s were apparently

found on the scene.

Sergeant Steven Sherwin testified that

when Bell came into the police station

after the shooting, Bell told him the man

he shot pulled a gun first and fired

several shots. According to Sherwin, Bell

said he then drew his gun and shot back.

It was stipulated that Sherwin would

testify that Bell turned over a .357

caliber six-shot revolver after

theshooting.

Doctor Edmond Donoghue performed an

autopsy on Latham. Donoghue testified

that there was an entrance wound on the

left side of Latham’s back, 19.2 inches

beneath the top of the head and 4.7

inches to the left of the midline. There

was another entrance wound on the left

side of the chest, 21.7 inches beneath

the top of the head, in the mid-axillary

line (which Donoghue testified is an

imaginary vertical line drawn through the

center of the armpit). There was also an

entrance wound on the left lateral chest,

more to the front of the body, in the

interior axillary line (an imaginary line

from the front of the armpit). This was

an atypical gunshot wound, which Donoghue

testified is "caused when a bullet

strikes the body in other than its nose-

on trajectory, and one of the most common

reasons . . . is that the bullet had

struck an intermediate target before

entering the body." There was an

additional entrance wound in the back of

the left arm which passed all the way

through the arm. Donoghue testified that

this bullet may have caused the atypical

wound in Latham’s chest. Finally,

Donoghue found evidence of an old, prior

gunshot wound in Latham’s back.

Bell was charged with two counts of

first-degree murder and two counts of

aggravated discharge of a firearm. He

pleaded not guilty and waived his right

to a jury trial. On April 13, 1993, Judge

Joseph Urso found Bell guilty beyond a

reasonable doubt of first-degree murder

and aggravated discharge of a firearm.

The trial court also found that Bell did

not act in self-defense. Bell received

concurrent sentences of 28 years for the

murder charge and 15 years for the

aggravated discharge of a firearm. Bell

appealed to the Illinois Appellate Court,

claiming that the evidence was

insufficient to establish guilt beyond a

reasonable doubt and that his sentence

was excessive. The Illinois Appellate

Court affirmed his conviction and

sentence. The Illinois Supreme Court

denied his petition for leave to appeal.

Bell filed a pro se petition for post-

conviction relief, alleging ineffective

assistance of counsel, an excessive

sentence, and violation of his Sixth

Amendment right to confront witnesses.

The petition was dismissed, and Bell

appealed the dismissal to the Illinois

Appellate Court. The Illinois Appellate

Court affirmed, and Bell filed a petition

for leave to appeal with the Illinois

Supreme Court. The petition was denied on

October 28, 1998.

On October 1, 1999, Bell filed a

petition for writ of habeas corpus in

federal district court. On December 22,

1999, Bell filed an amended petition,

claiming he was denied the effective

assistance of counsel because: 1) counsel

failed to conduct a reasonable pre-trial

investigation; 2) counsel failed to

subject the prosecution’s case to

meaningful adversarial testing; and 3)

counsel failed to adequately present a

defense.

The district court held an evidentiary

hearing, and found that Bell’s mother had

given Bell’s attorney the name of an

eyewitness, Anthony Stevens, who would

testify that Bell and Latham were both

shooting at each other. Stevens had not

been drinking or using any drugs on the

night of the shooting, and although

Stevens knew Bell casually as a neighbor,

they were not close friends.

Stevens testified before the district

court that he was double-parked about 40

feet southeast of the entrance to Chic

Rick’s. While waiting for a friend in his

car, Stevens heard shots to his left,

behind his car. According to Stevens,

there were six to eight shots, and the

shots made different sounds, as if they

came from two guns. When he turned toward

the direction of the shots, he saw two

men, each with his right arm extended and

pointing a gun at the other man in a

firing posture. A few seconds later

Stevens decided that he "didn’t want to

be there," and drove home.

Stevens testified that he subsequently

saw a television report on the incident,

and the account identified Bell. Because

the news account described Bell as

shooting Latham while he was sitting in

his car (while Stevens had seen both men

shooting at each other), he went to

Bell’s mother and gave her his name and

address.

Stevens had not testified at trial. The

district court determined that Bell’s

attorney had failed to get in contact

with Stevens, and that the attorney made

insufficient efforts to find Stevens. The

district court also held that the

newevidence provided by Stevens was

credible, and that it would result in a

fundamental miscarriage of justice if

Bell’s conviction were to stand unless it

were the product of a fair trial

including this new evidence. Accordingly,

the district court considered the merits

of Bell’s ineffective assistance of

counsel claim under Strickland v.

Washington, 466 U.S. 668 (1984), and

concluded on that basis that the writ of

habeas corpus should be granted. The

government appeals.

II.

Bell’s petition for habeas review was

filed on October 1, 1999, and it

therefore is reviewed pursuant to the

regulations of the Antiterrorism and

Effective Death Penalty Act of 1996

("AEDPA"). See Lindh v. Murphy, 521 U.S.

320, 322-23 (1997). The AEDPA amended the

habeas requirements under 28 U.S.C. sec.

2254, and authorizes issuance of the writ

only if the petitioner has exhausted all

available state remedies. See Rodriguez

v. Scillia, 193 F.3d 913, 916 (7th Cir.

1999). We review the district court’s

legal holdings de novo, and its factual

findings for clear error. See Foster v.

Schomig, 223 F.3d 626, 634 n.4 (7th Cir.

2000).

As noted, Bell claims he was denied the

effective assistance of counsel because:

1) counsel failed to conduct a reasonable

pre-trial investigation; 2) counsel

failed to subject the prosecution’s case

to meaningful adversarial testing; and 3)

counsel failed to adequately present a

defense. Respondent argued before the

district court that Bell’s claims were

procedurally defaulted. Generally,

federal courts may only review a

procedurally defaulted claim "if the

petition shows cause for failure to raise

[the defaulted claim] at the appropriate

time and actual prejudice which resulted

from such failure." See Rodriguez, 193

F.3d at 917 (citing Wainwright v. Sykes,

433 U.S. 72, 91 (1977)). This rule is

grounded in concerns of comity and

federalism. See Coleman v. Thompson, 501

U.S. 722, 731 (1991). Absent such a

showing, the defaulted claim is

reviewable only where a refusal to

consider it would result in a fundamental

miscarriage of justice. See Rodriguez,

193 F.3d at 917.

In this case, the district court did not

decide whether any of Bell’s claims were

procedurally defaulted, nor did it

address whether cause and prejudice were

shown (presumably because Bell never

attempted to show cause and prejudice).

The district court bypassed these

questions, instead resting its entire

holding on the grounds that a fundamental

miscarriage of justice would result if

Bell’s claims were not considered, based

on Stevens’ testimony. Accordingly,

before proceeding to the question of

procedural default, we first review the

district court’s decision.

Respondent claims the district court

erred in concluding that a fundamental

miscarriage of justice would result if it

did not consider Bell’s Strickland

argument. The controlling case in this

context is the Supreme Court’s decision

in Schlup v. Delo, 513 U.S. 298 (1995).

Under Schlup, in order for a case to fall

under the "narrow class of cases" which

implicates a fundamental miscarriage of

justice, the petitioner must show that "a

constitutional violation has probably

resulted in the conviction of one who is

actually innocent." Schlup, 513 U.S. at

315, 327. This means the petitioner must

show that "it is more likely than not

that no reasonable juror would have

convicted him in light of . . . new

evidence." Id. at 327 (quotation

omitted). Only then can the petitioner’s

constitutional claims be considered.

As the Schlup Court explained, the

petitioner’s claim of actual innocence is

"’not itself a constitutional claim, but

instead a gateway through which a habeas

petitioner must pass to have his

otherwise barred constitutional

claimconsidered on the merits.’" Id. at

315 (quoting Herrera v. Collins, 506 U.S.

390, 404 (1993)). Accordingly, without

new evidence of innocence, even a

meritorious constitutional claim is not

sufficient to allow a habeas court to

reach the merits of a procedurally

defaulted claim. See id. at 316.

The determination of whether a

petitioner established a probability that

no reasonable juror would have convicted

him in light of new evidence is a mixed

question of law and fact. See O’Dell v.

Netherland, 95 F.3d 1214, 1249 (4th Cir.

1996) (en banc), aff’d on other grounds,

521 U.S. 151 (1997). Unlike the legal

question of whether no reasonable juror

could have convicted the defendant, see,

e.g., Jackson v. Virginia, 443 U.S. 307

(1979), Schlup requires an analysis of

whether no reasonable juror would have

convicted, and Schlup requires the

district court to consider the

credibility of the petitioner’s new

evidence. Accordingly, a district court

applying Schlup must make factual

findings. However, "the district court is

in no better position than an appellate

court to then add that new evidence to

the evidence that was presented at trial

or to speculate as to the likelihood that

a reasonable juror would convict based on

the sum of all the evidence." O’Dell at

1250. Thus, as a mixed question of law

and fact, the Schlup probability

determination that no reasonable juror

would convict is reviewed de novo. See

id.; Ellsworth v. Levenhagen, 248 F.3d

634, 638 (7th Cir. 2001) (mixed questions

of law and fact are reviewed de novo).

The district court, in concluding that

Bell’s new evidence created a probability

that no juror would convict, stated that

its decision "takes into account the

obligation of the prosecution to prove

beyond a reasonable doubt that Bell did

not act in self-defense." See United

States ex rel. Bell v. Pierson, 2000 WL

1810235, *6 (N.D.Ill. 2000) (emphasis in

original). In Illinois, to establish

self-defense the defendant must provide

evidence that: 1) force had been

threatened against the defendant; 2) the

defendant was not the aggressor; 3) the

danger of harm was imminent; 4) the force

threatened was unlawful; 5) the defendant

actually believed that the danger

existed, that the use of force was

necessary to avert the danger, and that

the kind and amount of force actually

used was necessary; and 6) the

defendant’s beliefs were reasonable. See

People v. Morgan, 719 N.E.2d 681, 700

(Ill. 1999). The state may then defeat

the claim by proving beyond a reasonable

doubt that one of the elements of self-

defense is not met. See People v.

Peterson, 652 N.E.2d 1252, 1261 (Ill.

App. Ct. 1995).

Applying this Illinois law, however,

does not show a probability that "no

juror, acting reasonably, would have

voted to find [the petitioner] guilty

beyond a reasonable doubt." See id.

Indeed, the standard for finding a funda

mental miscarriage of justice assures

that the petitioner’s case must be

"extraordinary," and requires "a stronger

showing than that needed to establish

prejudice" under Strickland./1 See

Schlup, 513 U.S. at 327 n.45. This case

is not the extraordinary one.

Stevens’ testimony, no matter how

credible (and we defer to the district

court’s finding that it was "totally

credible"), suffers from a fatal

deficiency. His testimony offers a

momentary window onto a course of events,

a perspective that is both too late and

too early to adequately counter the

overwhelming evidence that Bell did not

act in self-defense, when reviewed under

the standard set forth in Schlup. Stevens

did not see the events leading up to the

shootout he describes, and he did not see

the events afterward./2

Significantly, the district court found

Stevens’ testimony credible on the issue

of whether Latham was armed. Bell notes

that the trial court, in finding him

guilty, emphasized that there was no

evidence to support his claim that Latham

had a gun. This statement must be

compared with the full text of the trial

court’s credibility findings, which

stated:

The court is convinced that the State has

proven the defendant guilty beyond a

reasonable doubt. The court is also

convinced that the State has proven

beyond a reasonable doubt that the

defendant Theodore Bell did not act in

self-defense in this case. I do not

believe that the evidence shows in anyway

[sic] that the deceased was armed with a

gun or any weapon at thee [sic] time of

the shooting. I also believe that the

evidence shows that Mr. Bell did not act

in any unreasonable belief that the

defendant was in fact armed. The court

believes that this in fact occurred very

closely as the prosecution witnesses

attested to.

R.20-3, F-55. As the record shows, and

the trial court’s findings indicate,

Latham’s unarmed status was one ground

for rejecting the self-defense argument.

But it was not the only ground presented

by the evidence. It is crucial that the

state court found the prosecution

witnesses credible generally.

Stevens’ habeas testimony may conflict

with the testimony of those witnesses who

did not see Latham with a gun, but it

does not address the initiation of the

shooting, and it does not conflict with

the abundant testimony and evidence

(evidence which, except for Bell’s own

statements, is uncontroverted) that at

some point Bell chased the victim and

shot him at close range as he sat in his

car.

There was ample evidence that Bell was

the aggressor, pulling his gun first and,

according to almost every witness

(including Bell’s friends), chasing after

Latham when he ran away. And there was

ample evidence that Bell shot Latham

while Latham was seated in his car, when

he no longer posed a threat. Fortenberry,

Harper, and Boyd all testified that Bell

shot Latham at close range in his car as

Latham attempted to leave his parking

space and drive off. This testimony was

found credible by the trial court, and it

is supported by the evidence of Latham’s

gunshot wounds and the broken car

windows.

The district court’s probability

finding, accordingly, must be reversed.

It is not probable on this record that no

reasonable juror would have found Bell

guilty beyond a reasonable doubt if it

found based on Stevens’ testimony that

Latham was armed, or at one point even

shooting back./3 Since credible

prosecution witnesses testified that Bell

chased Latham and shot him while Latham

was seated in his car, and Stevens adds

nothing new on this subject, there is a

likelihood that a reasonable jury would

reject the self-defense argument.

Credible new testimony disagreeing with

credible testimony by the prosecution

witnesses on one point--Latham’s

possession or use of a gun--does not

create a probability that no reasonable

juror would accept the prosecution

witnesses’ testimony regarding subsequent

events. Bell has not shown a probability

that no juror would find beyond a

reasonable doubt that Bell met the final

elements of self-defense under Illinois

law--i.e., that Bell held a reasonable

belief that lethal force was necessary to

avert imminent danger from Latham.

Therefore, Bell has not shown a

probability that no juror would convict

in light of the new evidence.

Accordingly, because Bell’s petition does

not meet the extraordinary circumstances

necessary for there to be a "fundamental

miscarriage of justice," we may not reach

his constitutional claims if they

weredefaulted.

Because the district court never decided

whether habeas relief would be available

if Bell had not met the high standard for

a fundamental miscarriage of justice, our

holding above does not yet resolve this

case. The government contends that the

district court’s opinion impliedly held

that all of petitioner’s claims of

ineffective assistance of counsel were

procedurally defaulted because the court

proceeded under the fundamental

miscarriage of justice standard. However,

on December 22, 1999, the district court

issued an order which stated that "it

would seem that the only claims that do

not face rejection on procedural default

grounds are those included in Petition

para.para.II.A.1 and II.C.1."/4 Then, on

August 9, 2000, the district court issued

an order requiring an evidentiary hearing

which noted that "Bell’s claim of self-

defense, if established, would equate to

his actual innocence under Illinois law,

thus bypassing issues of procedural

default." Finally, the district court’s

opinion itself only referred to the

procedural default as "asserted." These

statements all suggest the court, given

its finding of a fundamental miscarriage

of justice, believed a determination of

whether a procedural default occurred was

unnecessary, and not that the court

impliedly ruled against Bell on the

question of procedural default.

On appeal, the issue of whether Bell

procedurally defaulted his claims was not

briefed by the parties. But the parties

briefed the issue before the district

court, which then indicated in its order

of December 22, 1999 that the majority of

Bell’s claims appeared to have been

defaulted. A review of the record

indicates that the district court’s

impression was correct./5

As noted previously, a procedural

default bars federal habeas review unless

there is a showing of cause and prejudice

or a fundamental miscarriage of justice

would result. In this case, the

exhaustion doctrine is fatal to most of

Bell’s claims. "[T]he exhaustion doctrine

is designed to give the state courts a

full and fair opportunity to resolve

federal constitutional claims before

those claims are presented to the federal

courts." O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999). The petitioner must

"fairly present" the federal issue to the

state courts as a precondition to

exhaustion. See Verdin v. O’Leary, 972

F.2d 1467, 1472-73 (7th Cir. 1992).

Bell never argued any theory of

ineffective assistance of counsel on

direct appeal in state court, and his

state court petition for post-conviction

relief, as well as his post-conviction

appeals, only raised ineffectiveness

claims based on failure to investigate

and present alibi witnesses. Accordingly,

as his new claims, listed above in

footnote five, are independent of the

claims he raised in state court, they are

defaulted. As we have noted before, "[i]t

is not sufficient that [the petitioner]

alleged various other errors by counsel;

to set forth a claim of ineffective

assistance, a petitioner ’must identify

the specific acts or omissions of counsel

that form the basis for his claim of

ineffective assistance.’" Momient-El v.

DeTella, 118 F.3d 535, 541 (7th Cir.

1997). The state courts were never given

an opportunity to consider most of Bell’s

claims of ineffectiveness of counsel,

either on direct appeal or in state post-

conviction proceedings. Procedural

default accordingly bars habeas review of

his new claims./6

The situation is different respecting

Bell’s claim of ineffectiveness based on

his failure to present Anthony Stevens’

testimony. This claim of ineffective

assistance was clearly presented in state

court. The government argued in district

court that this claim was defaulted based

on independent and adequate state

grounds, however. We disagree.

"We will not review a question of

federal law decided by a state court if

that decision rests on state law grounds

that are independent of the federal

question and adequate to support the

judgment." Franklin v. Gilmore, 188 F.3d

877, 881 (7th Cir. 1999). In order for

the state court decision to be

independent, the court must have

"actually . . . relied on the procedural

bar as an independent basis for

itsdisposition of the case." Harris v.

Reed, 489 U.S. 255, 261, 62 (1989)

(quoting Caldwell v. Mississippi, 472

U.S. 320, 327 (1985)). "Whether a ground

is independent depends on state law . . .

therefore, in order for the state

judgment to bar federal habeas review,

the last state court to render a judgment

in the case must have ’clearly and

expressly state[d] that its judgment

rests on a state procedural bar.’" Thomas

v. McCaughtry, 201 F.3d 995, 1000 (7th

Cir. 2000) (citation omitted) (quoting

Jenkins v. Nelson, 157 F.3d 485, 491 (7th

Cir. 1998)). In addition, "[s]tate court

decisions are not adequate to bar federal

habeas review unless they rest upon

firmly established and regularly followed

state practice." Franklin, 188 F.3d at

882 (citing James v. Kentucky, 466 U.S.

341, 348-51 (1984)).

Here, in post-conviction proceedings,

the Illinois appellate court’s decision

did expressly reference res judicata and

waiver, the procedural bar at issue.

However, the court did not explicitly

apply this Illinois procedural bar to the

facts of Bell’s petition. Rather, it

proceeded to discuss whether Stevens’

claim that Latham was armed could merit

relief. The court concluded that Bell

failed to show sufficient evidence to

succeed under Strickland, and affirmed

the state trial court’s order denying an

evidentiary hearing and post-conviction

relief. The court concluded with the

general statement, "For these reasons the

order of the circuit court of Cook County

is affirmed."

There is no relevant distinction between

these facts and the facts in Harris. In

that case, the Supreme Court addressed an

appellate court decision which referred

to a state procedural bar (waiver) and

then "went on to consider and reject

petitioner’s ineffective-assistance claim

on its merits." Harris, 489 U.S. at 258.

The Court explained that the state court

must make a plain statement that it

relies on an independent and adequate

state ground, and concluded that the

appellate court’s decision "falls short

of an explicit reliance on a state-law

ground." See id. at 266. Accordingly, the

Harris Court determined that habeas

review was not barred. We reach the same

conclusion here.

Since the claim of ineffective

assistance based on counsel’s failure to

contact Stevens and present his testimony

was not procedurally defaulted, it may be

reviewed under the AEDPA.

The relevant portion of the AEDPA

provides:

An application for a writ of habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State court

shall not be granted with respect to any

claim that was adjudicated on the merits

in State court proceedings unless the

adjudication of the claim-- . . .

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. sec. 2254(d)(1).

As the Supreme Court has explained, a

state court decision is "contrary to"

clearly established Supreme Court

precedent "if the state court applies a

rule that contradicts the governing law

set forth in [Supreme Court] cases," or

"if the state court confronts a set of

facts that are materially

indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives

at a result different from [Supreme

Court] precedent." Williams v. Taylor,

529 U.S. 362, 405 (2000). A state court

decision is an "unreasonable application"

of clearly established Supreme Court

precedent when "the state court

identifies the correct governing legal

rule from [the Supreme Court’s] cases but

unreasonably applies it to the facts of

the particular state prisoner’s case," or

"the state court either unreasonably

extends a legal principle from [Supreme

Court] precedent to a new context where

it should not apply or unreasonably

refuses to extend that principle to a new

context where it should apply." Id. at

407.

If the case falls under the "contrary

to" clause of sec. 2254(d)(1), then we

review the state court decision de novo

to decide what is clearly established law

as determined by the Supreme Court and

whether the state court decision was

"contrary to" that Supreme Court

precedent. See Denny v. Gudmanson, 252

F.3d 896, 900 (7th Cir. 2001). If, on the

other hand, the case falls under the

"unreasonable application" clause, then

we defer to a reasonable state court

decision. See id. Moreover, state court

factual findings that are reasonably

based on the record are presumed correct.

See 28 U.S.C. sec. 2254(e)(1); Gudmanson,

252 F.3d at 900.

Where a state court has denied a

Strickland claim on the merits, under the

AEDPA we generally review for clear

error. As we noted in Holman v Gilmore,

"Strickland calls for inquiry into

degrees; it is a balancing rather than a

bright-line approach . . . . This means

that only a clear error in applying

Strickland’s standard would support a

writ of habeas corpus." 126 F.3d 876,

881-82 (7th Cir. 1997). This is because

"Strickland builds in an element of

deference to counsel’s choices in

conducting the litigation [and] sec.

2254(d)(1) adds a layer of respect for a

state court’s application of the legal

standard." Id.

In support of his petition for post-

conviction relief, Bell presented an

affidavit from Anthony Stevens testifying

that he "saw Stanley Latham holding a gun

in his hand at the time of the shooting

between Stanley Latham and Theodore

Bell." He also presented an affidavit

from his ex-girlfriend, Lillian Winfrey,

who claimed to have a friend named

"Sharon" who told her that Latham had

pulled a gun on Bell./7 The trial court

dismissed the claim of ineffective

assistance as frivolous and denied an

evidentiary hearing. On appeal from the

denial of post-conviction relief, the

Illinois appellate court applied the

second prong of the Strickland test and

affirmed. The appellate court summarized

the compelling evidence of guilt, then

concluded, "[t]he affidavits, even if

taken as true, do not refute the fact

that after the alleged altercation was

terminated by a security guard and the

victim was attempting to flee the area,

defendant broke free from the guard,

pursued the victim with gun drawn and

shot him at close range." Accordingly,

the court concluded that the outcome of

the trial would not have been different

even if the proposed witnesses had

testified.

The Illinois appellate court’s reasoning

respecting Stevens’ affidavit, which

applies equally to Stevens’ habeas

testimony, is not clearly erroneous. Even

if Latham shot at Bell at some point in

the altercation, Latham could not still

be considered a danger with his hands on

the steering wheel as he tried to drive

away. Flight is not generally confused

with aggression.

Applying the appropriate deference to

the state court’s application of

Strickland, we conclude that it was not

unreasonable to find that the outcome

would be the same even if the affidavits

from Bell’s alibi witnesses had been

presented at trial. Under Strickland,

there must be a reasonable probability

that, but for the attorney’s error, the

result of the proceeding would have been

different. The government presented

several witnesses--credible ones

according to the trial court--all of whom

saw Bell shoot Latham as he sat in his

car, attempting to drive away. Indeed,

themedical evidence demonstrated that

Latham had been shot in the back, and the

broken windows on the car further

supported the testimony that Latham was

shot at as he tried to escape. The

"spiderweb" bullet holes in the driver’s

side window would indicate the window was

rolled up, so Latham couldn’t be shooting

out the window as he drove. The shattered

rear window would indicate Bell was still

shooting as the car left the scene. It

was not unreasonable for the state courts

to determine that the outcome would

remain unchanged based on this

uncontradicted (except by Bell’s own

testimony) evidence that Bell shot Latham

in cold blood when he no longer posed a

threat. It was certainly not clear error.

III.

In sum, the petitioner did not meet his

burden of showing the requisite

probability that no reasonable juror

would convict under Schlup v. Delo. In

light of the credible evidence of guilt

before the Illinois trial court, the

district court’s finding of a fundamental

miscarriage of justice was erroneous. As

a result, the majority of Bell’s habeas

claims cannot be reviewed, since they

were procedurally defaulted. In addition,

the state courts’ application of Supreme

Court precedent to Bell’s remaining

claims was not unreasonable. Therefore we

REVERSE the district court, and direct it

to enter an order denying the habeas

petition.

FOOTNOTES

/1 Under Strickland, the petitioner must show that

his attorney’s performance fell below an objec-

tive standard of reasonableness, and that his

attorney’s performance actually prejudiced him.

See Strickland, 466 U.S. at 687. The test for

prejudice requires the petitioner to show that

there is a reasonable probability that, but for

the attorney’s error, the result of the proceed-

ing would have been different. See id. at 694.

/2 The district court also noted that Bell’s origi-

nal counsel stated that evidence that Latham was

armed "would have made all the difference in the

world." See Bell, 2000 WL 1810235 at *5. The

district court did not appear to place signifi-

cant weight on this testimony, however, and it is

not apparent how this subjective and general

opinion could carry much weight in light of the

evidence before the trial court and the trial

court’s findings.

/3 Bell claims that the district court also identi-

fied seven additional items of "new" evidence to

support its holding. The district court, however,

expressly stated that its findings in this regard

did not support a determination of "actual inno-

cence." We agree. This evidence was used to

support the district court’s Strickland analysis.

As the district court explained, "[d]uring the

trial itself Thomas committed a number of errors

of greater or lesser levels of seriousness, whose

significance was not alone of constitutional

dimension but whose cumulative effect added

significantly to the impact of the fatal flaw

regarding the absence of eyewitness Stevens’

testimony." See Bell, 2000 WL 1810235 at *5. The

allegedly new evidence of failure by Bell’s

counsel to properly cross-examine witnesses or

make all of the available legal arguments does

not qualify as new evidence of "actual innocence"

sufficient for Bell to have his constitutional

claim considered in the context of a procedural

default.

/4 The claims which the district court order sug-

gested were not procedurally defaulted were

claims of ineffective assistance based on: fail-

ure to conduct adequate trial preparation and

investigation by not contacting alibi witnesses;

and failure to present an adequate defense by not

calling those alibi witnesses. Anthony Stevens

was one such witness.

/5 Bell never presented the majority of his habeas

claims to the state courts. It is clear he never

argued ineffective assistance of counsel based

on: counsel’s failure to properly prepare wit-

nesses before their testimony; failure to cross-

examine and argue that Nicole Boyd, the passenger

in Latham’s car, was not searched by the police

at the scene; failure to argue that the 9 mm

shells found at the scene were never dusted for

Latham’s fingerprints; failure to use the toxi-

cology report which showed Latham’s blood alcohol

level; failure to impeach the prosecution’s

theory that Latham was sitting in his car when he

was shot by eliciting testimony that would indi-

cate that the bullets Bell used should have

shattered the car window; failure to elicit

testimony from Dr. Donoghue that Latham was shot

in the chest; failure to elicit testimony from

Bell that he did not know there was a passenger

in Latham’s car; failure to argue that any shots

fired in the direction of Nicole Boyd, Latham’s

passenger, were fired with the intent of self-

defense against Latham; failure to argue that the

results of paraffin tests showed both Bell’s and

Latham’s hands were not positive for gunpowder

residue; failure to argue for second-degree

murder because Latham struck Bell twice prior to

the shooting; failure to argue for second-degree

murder based on the theory that even if the judge

found Bell’s belief that Latham had a gun and was

shooting it at him was unreasonable, this would

still reduce the level of the crime; failure to

elicit testimony from Bell and other witnesses

that someone yelled "He’s got a gun," referring

to Latham; and failure to argue that Dr.

Donoghue’s testimony that the trajectory of two

of the bullets which struck Latham was horizon-

tal, which would impeach the theory that Latham

was seated in his car when he was shot, while

Bell was standing.

/6 As the district court noted, Bell made no effort

to argue cause and prejudice in order to avoid

this procedural bar. His entire argument was that

the procedural default could be bypassed based on

Schlup. As a result, a cause and prejudice argu-

ment was waived. See Weber v. Murphy, 15 F.3d

691, 695 (7th Cir. 1993), cert. denied, 511 U.S.

1097 (1994).

/7 Bell’s federal habeas petition presents a third

affidavit, from Greg Reed. This individual alleg-

edly would have testified to Latham’s affiliation

with the Gangsta Disciples and his propensity

towards violence. Although this affidavit was

never presented in state court, we need not

decide whether a claim based on Reed’s testimony

was defaulted, since his affidavit would not

alter our analysis below.