Badelle, Robert E. v. Correll, Curtis

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-1602

ROBERT EARL BADELLE,

Petitioner-Appellant,

v.

CURTIS CORRELL,Œ

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 02 C 238—Larry J. McKinney, Chief Judge.

____________

ARGUED JUNE 7, 2005—DECIDED JUNE 22, 2006

____________

Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Almost thirty years ago, Robert

Kannapel Sr. was shot and killed while working at an

Indianapolis gas station. Robert Badelle was convicted of

the murder by an Indiana jury in 1979 and sentenced

to sixty years’ imprisonment. Badelle’s conviction and

sentence were affirmed on direct appeal. Badelle v. State,

449 N.E.2d 1055 (Ind. 1983) (Badelle I).

Œ

Warden Curtis Correll has been substituted for John R.

Vanatta, as Badelle has been moved to the Plainfield prerelease

center.

2 No. 04-1602

Four years after the final disposition of his direct appeal,

Badelle commenced an action for postconviction relief in

state court. For reasons not entirely clear from the record,

this petition apparently remained pending for twelve years

without substantial action by the Indiana court.1 An

evidentiary hearing was finally convened in the fall of 1999;

it lasted four days and 44 witnesses testified. The

postconviction court denied relief, and the denial was

upheld on appeal. Badelle v. State, 754 N.E.2d 510 (Ind.

App. 2001) (Badelle II). The Indiana Supreme Court

declined review.

Badelle then filed a petition for a writ of habeas corpus in

the district court pursuant to 28 U.S.C. § 2254 alleging

numerous errors in the state court proceedings. The district

court denied relief, and this court granted in part Badelle’s

request for a certificate of appealability. See 28 U.S.C.

§ 2253. Badelle argues on appeal that he is entitled to

habeas relief because the prosecution withheld evidence

contrary to Brady v. Maryland, 373 U.S. 83 (1963), and

because his counsel was ineffective for failing to investigate

and present the testimony of additional witnesses and for

not sufficiently objecting to the admissibility of eyewitness

identifications. We affirm.

I. Background

On the snowy afternoon of December 5, 1977, Robert

Kannapel Sr. and his son Robert Jr. were working together

at a gas station in Indianapolis, Indiana. Robert Sr. was

primarily working in the garage repairing automobiles

1

The Indiana Court of Appeals noted without elaboration that

the original petition for postconviction relief was filed on June 15,

1987, and that “subsequent petitions or amendments” were filed

in 1987, 1989, 1996, and, finally, on May 27, 1999. Badelle v.

State, 754 N.E.2d 510, 519 (Ind. App. 2001).

No. 04-1602 3

while his son manned the gas pumps and otherwise

dealt with customers. Sometime between 3:00 p.m. and

3:30 p.m., a man unknown to the Kannapels walked into

the station’s front office area to escape the heavy snowfall

and wait for a ride, which the Kannapels permitted him

to do for the ensuing three hours.

At approximately 4 p.m., Edwin Kennedy pulled his car

into the service station and it stalled in front of the gas

pumps. Kennedy, with the assistance of Robert Kannapel

Sr., Robert Kannapel Jr., and the loitering stranger, pushed

the inoperable vehicle off the premises and onto the city

street. Shortly after Kennedy’s car had been moved, Floyd

Piles, the owner of the gas station, stopped in to attend to

some business for approximately ten minutes. He observed

the stranger standing in the front office and exchanged

greetings with him.

At approximately 5 p.m., a man named Joe Harris

entered the station to visit with his friend Robert Kannapel

Sr. Harris would remain at the station for the next hour.

The stranger asked Harris for a cigarette, which Harris

provided. Shortly after 6 p.m., the younger Robert Kannapel

left the station for the evening.

At this point the stranger asked Harris and Robert

Kannapel Sr. if they would call him a cab. As Harris and

Kannapel searched the telephone book for the appropriate

phone number, a man named John Hoffman entered the

station and asked to use the telephone. Hoffman saw the

stranger standing in the lobby and said hello. Kannapel told

Hoffman there was no telephone available for public use

and Hoffman promptly left the station.

Kannapel and Harris found a telephone number for a

taxi, and Kannapel walked into a room at the rear of the

station to place the call. The stranger followed Kannapel

into the back room while Harris remained in the front

lobby. Harris then heard the sound of a scuffle followed by a

4 No. 04-1602

gunshot and Kannapel’s plea for an ambulance. As Harris

began moving toward the back room to investigate, the

stranger emerged holding a silver handgun with a

long barrel. He threatened to shoot Harris if he went any

further. Harris then ran from the station and called police

from his nearby apartment. The shooter left the station and

was observed by a man named Vincent Carrol who had just

pulled his vehicle up to the gasoline pumps. Carrol observed

that the man was holding a “long-barreled, silver-colored”

handgun as he left the gas station. Help arrived too late to

save Kannapel, who died from a gunshot wound.

The Indianapolis Police Department put Detective Dennis

Morgan in charge of the investigation, assisted by Detective

James Highbaugh. A composite sketch of the killer was

created, and the sketch was published in an Indianapolis

newspaper. Three and a half months after the murder, the

police received a tip that Badelle looked very much like the

sketch, and he was arrested on a probation violation.

The case against Badelle was based primarily on posi-

tive identifications made at lineups and in court by

Robert Kannapel Jr. and Joe Harris, the only two living

witnesses who had spent any significant amount of time

observing the murderer hanging around the gas station on

the day of the murder. Robert Kannapel Jr. identified

Badelle as the man who had been loitering in the gas

station the afternoon and evening of the murder. Joe Harris

likewise identified Badelle as the man who shot and killed

Robert Kannapel Sr. and threatened Harris with a gun

following the shooting. Floyd Piles, Vincent Carrol, and

John Hoffman had shorter looks at the suspect and could

not identify Badelle. Edwin Kennedy testified that Badelle

was not the man who helped him push his stalled vehicle off

the gas station lot before the murder took place.

In addition to the two eyewitness identifications, a man

named Charles (“Dick”) Reedus testified that he had known

No. 04-1602 5

Badelle for eight to ten years and that Badelle had been in

Reedus’s place of business “in the fall of 1977”—just months

prior to the murder—brandishing a shiny, chrome-colored

handgun. Reedus also testified that Badelle had on that

occasion fired a shot into the wall (perhaps accidentally),

and that police subsequently searched for, but did not find,

any bullet or bullet hole in the wall.

Additional facts and procedural history will be discussed

where appropriate.2

II. Discussion

Prior to enactment of the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), a state prisoner seeking

a writ of habeas corpus in federal court received plenary

review of his federal constitutional claims. Gregory-Bey v.

Hanks, 332 F.3d 1036, 1043 (7th Cir. 2003); Agnew v.

Leibach, 250 F.3d 1123, 1129 (7th Cir. 2001). This

changed in 1996 with passage of AEDPA. Habeas petitions

(such as this one) filed after the enactment of AEDPA are

subject to a standard of review that is far more deferential

to the decisions of state courts and require a different

showing on the part of the prisoner than under pre-AEDPA

habeas law. “Under the new section 2254(d), a federal court

reviews these [state court] determinations

for reasonableness only, whereas the prior law provided

for plenary review of these claims.” Abrams v. Barnett, 121

F.3d 1036, 1037 (7th Cir. 1997).

None of this is new, but Badelle has inexplicably pre-

sented his claims as though this were a pre-AEDPA case.

His failure to adequately comprehend the showing required

2

The foregoing facts are from Badelle’s second trial. The guilty

verdict from Badelle’s first trial was set aside based on a discovery

violation; the case was retried in June 1979.

6 No. 04-1602

of him under post-AEDPA standards complicates our

evaluation of his claims. Review is further hampered by the

scattershot nature of Badelle’s arguments; the factual and

legal underpinnings of his claims are presented in a

disjointed fashion that makes them difficult to understand.

Finally, we note that the vast majority of Badelle’s briefing

in this court consists of a verbatim replication of the brief

he submitted to the Indiana Court of Appeals on his appeal

of the denial of postconviction relief. This cut-and-paste

approach falls far short of the showing required for habeas

relief under AEDPA.

Badelle is entitled to habeas relief only if the decision of

the Indiana Court of Appeals denying his petition for

postconviction relief was (1) contrary to or involved an

unreasonable application of clearly established federal

law as determined by the United States Supreme Court, or

(2) based on an unreasonable determination of the facts

in light of the evidence presented in the state court pro-

ceeding. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S.

362, 367 (2000); Charlton v. Davis, 439 F.3d 369, 374 (7th

Cir. 2006) (“The relevant decision for purposes of our

assessment is the decision of the last state court to rule

on the merits of the petitioner’s claim.”). A state court

decision is “contrary to” federal law if it is “substantially

different from the relevant precedent of [the Supreme

Court].” Boss v. Pierce, 263 F.3d 734, 739 (7th Cir. 2001)

(quoting Williams, 529 U.S. at 405). This occurs when the

state court applies a rule that contradicts the governing law

set forth by the Supreme Court or, on facts materially

indistinguishable from the facts of an applicable Supreme

Court precedent, reaches a different result. Ward v. Sternes,

334 F.3d 696, 703 (7th Cir. 2003) (citing Williams, 529 U.S.

at 405).

An “unreasonable application” of clearly established

federal law occurs when the state court correctly identi-

fies the governing legal rule but applies it unreasonably

No. 04-1602 7

to the facts of the particular prisoner’s case. Id. But an

“unreasonable application” of clearly established federal law

is not synonymous with an erroneous decision. Williams,

529 U.S. at 410; Woodford v. Visciotti, 537 U.S. 19, 25

(2002) (per curiam). Rather, the state court’s application of

Supreme Court precedent must be so erroneous as to be

objectively unreasonable. Williams, 529 U.S. at 410; see also

Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (“[T]he state

court’s decision must have been [not only] incorrect or

erroneous [but] objectively unreasonable.”); Rompilla v.

Beard, 125 S. Ct. 2456, 2462 (2005). Indeed, the Supreme

Court has held that even a “clearly erroneous” state court

decision is not necessarily “unreasonable” for purposes of

§ 2254:

The ‘unreasonable application’ clause requires the state

court decision to be more than incorrect or erroneous.

The state court’s application of clearly established law

must be objectively unreasonable. . . . [T]he Ninth

Circuit [has] defined ‘objectively unreasonable’ to mean

‘clear error.’ These two standards, however, are not the

same. The gloss of clear error fails to give proper

deference to state courts by conflating error (even clear

error) with unreasonableness. It is not enough that a

federal habeas court, in its ‘independent review of the

legal question,’ is left with a ‘firm conviction’ that the

state court was ‘erroneous.’

Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal

citations omitted).

We are therefore required to distinguish between state

court decisions that are clearly erroneous and those that are

so erroneous as to be “objectively unreasonable”; only the

latter qualify for habeas relief under AEDPA. We “take[ ]

for granted that for a given set of facts, there exists the

possibility of ‘several equally plausible outcomes.’ ” We will

“uphold those outcomes which comport with recognized

8 No. 04-1602

conventions of legal reasoning and set aside those which do

not.” Ward, 334 F.3d at 703. Stated another way, an

unreasonable state court decision is one “lying well outside

the boundaries of permissible differences of opinion,”

Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002), or

one that is “at such tension with governing U.S. Supreme

Court precedents, or so inadequately supported by the

record, or so arbitrary” as to be unreasonable. Hall v.

Washington, 106 F.3d 742, 749 (7th Cir. 1997).

A. Brady Claims

Many of Badelle’s claims are premised on alleged viola-

tions of Brady v. Maryland, 373 U.S. 83 (1963). Under

Brady and its progeny, the prosecution in a criminal case

has an affirmative duty to disclose evidence that is both

favorable to the defense and material to either guilt or

punishment. Kyles v. Whitley, 514 U.S. 419, 432-34 (1995);

United States v. Bagley, 473 U.S. 667, 674-75 (1985). The

suppression of such evidence deprives a defendant of a

fair trial and violates due process. Brady, 373 U.S. at 86-87.

To establish a Brady violation, a criminal defendant must

demonstrate that (1) the prosecution suppressed evidence,

(2) the evidence was favorable to the defense, and (3) the

evidence was material to an issue at trial. Boss, 263 F.3d at

740. Favorable suppressed evidence is material for Brady

purposes if “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the

proceeding would have been different.” Kyles, 514 U.S. at

433-34. A “reasonable probability” of a different result is

shown when “the government’s evidentiary suppression

‘undermines confidence in the outcome of the trial.’ ” Kyles,

514 U.S. at 434 (quoting Bagley, 473 U.S. at 678).

No. 04-1602 9

1. The Investigation of Detective Richard Combs

When Charles Reedus reported to police that Badelle

brandished and fired a silver handgun in Reedus’s place

of business a few months before the murder, Indianapolis

Police Detective Richard Combs went to Reedus’s store and

searched the establishment looking for a bullet or bullet

hole. Combs found no bullet or bullet fragment and could

not locate a bullet hole in the wall. Detective Combs’s

fruitless search was never disclosed to the defense prior

to trial, and Combs did not testify at Badelle’s murder trial.

In Badelle II, the Indiana Court of Appeals held that this

evidence met the first two prongs of the Brady test in that

it was never disclosed to the defendant and was favorable

to the defense. However, relying on Kyles, the court held

that the information was not material “as there is no

reasonable probability that had the evidence been disclosed

to the defense[,] the result of Badelle’s trial would have

been different.” Badelle II, 754 N.E.2d at 530.

Badelle makes absolutely no effort to explain how the

state court’s application of Kyles was so erroneous as to be

objectively unreasonable. His brief states only that he is

“entitled to a reversal of his conviction on this issue because

he was blocked with [sic] the ability to impeach Reedus due

to the State’s suppression of exculpatory evidence.” This is

merely a reiteration of the grounds on which his claim was

originally brought in the state postconviction proceeding

and does not suffice under the post-AEDPA version of

§ 2254. Badelle is required to do more than simply assert

error on the part of the state court. See Harding v. Sternes,

380 F.3d 1034, 1043 (7th Cir. 2004) (“The habeas applicant

has the burden of proof to show that the application of

federal law was unreasonable.”); Woodford, 537 U.S. at 25

(“[I]t is the habeas applicant’s burden to show that the state

court applied [federal law] to the facts of his case in an

objectively unreasonable manner.”). He has not offered us

10 No. 04-1602

any basis upon which to conclude that the Indiana court’s

decision lies “well outside” the boundaries of permissible

differences of opinion, and we perceive none ourselves.

Reedus himself testified that the police searched and did

not find a bullet or bullet hole on his premises.

2. The Investigation of Detective Clarence Grant

At Badelle’s postconviction hearing, Indianapolis Police

Detective Clarence Grant testified that in the months

following the murder of Robert Kannapel, he contacted

Richard “Dickie Boy” Carpenter, an informant who had

supplied Grant with good information in the past. Grant

asked Carpenter to see if he could “find out what took place

and who did it” and informed Carpenter that “right at this

time they’re searching for a guy named Robert Badelle.”

Carpenter told Grant that Badelle could not have commit-

ted the crime because Badelle was “up here hanging out

with us at the Drake [Motel]” at the time of the murder.

Detective Grant testified that he sent this information to

“the homicide office” and that this ended his involvement in

the matter.

The Badelle II court found that Carpenter’s statement to

Detective Grant was favorable to the defense and was not

disclosed to the defense prior to trial, satisfying the first

two elements of a Brady claim. Badelle II, 754 N.E.2d at

531. With respect to materiality, however, the Indiana court

held as follows: “[T]he nondisclosure of a known alibi

witness erodes this Court’s confidence in the validity of

Badelle’s conviction. Nevertheless, standing alone, we

cannot say that this information would have changed the

outcome of Badelle’s trial.” Id.

Once again, Badelle has failed to present us with any

substantive argument as to why he is entitled to relief

on this issue under post-AEDPA habeas standards. He

makes no specific reference to the Indiana court’s holding

No. 04-1602 11

regarding Detective Grant’s investigation. He merely states,

in conclusory fashion and without citation to authority, that

“whether the State Court’s decision was contrary to or an

unreasonable application of federal law on this issue is

debatable among jurists of reason[.]” This is virtually the

antithesis of the showing he is required to make for issu-

ance of the writ. An unreasonable state court decision for

purposes of post-AEDPA habeas relief is not one that is

merely “debatable” but one that lies “well outside the

boundaries of permissible differences of opinion.”

Hardaway, 302 F.3d at 762. Badelle has thus failed to carry

his burden of proof on this issue. In this limited instance,

however, we will make his argument for him because the

Badelle II opinion contains an arguable inconsistency that

cries out for resolution.

As we have noted, the Indiana Court of Appeals denied

relief on the basis that the suppressed evidence regarding

Detective Grant’s investigation did not meet the test for

materiality under Brady and Kyles, concluding that “stand-

ing alone, we cannot say that this information would have

changed the outcome of Badelle’s trial.” Badelle II, 754

N.E.2d at 531. This can only be viewed as the court’s

“bottom line” on this issue, and it is consistent with applica-

ble federal law, cited numerous times in Badelle II, that

evidence is material for Brady purposes only where there is

a reasonable probability that had the favorable evidence

been disclosed in a timely fashion, the result of the proceed-

ing would have been different. Id. at 526 (quoting Kyles, 514

U.S. at 433-34).

The internal inconsistency arises from the sentence that

immediately precedes the court’s bottom line holding:

“Moreover, the nondisclosure of a known alibi witness

erodes this Court’s confidence in the validity of Badelle’s

conviction.” Badelle II, 754 N.E.2d at 531. This language is

close to the Bagley elaboration on the “reasonable probabil-

ity” standard, to wit, that a “reasonable probability” of a

12 No. 04-1602

different outcome exists when the government’s evidentiary

suppression “undermines confidence in the outcome of the

trial.” Bagley, 473 U.S. at 678; see also Kyles, 514 U.S. at

434. If the Indiana court’s “erodes confidence” language is

understood as the equivalent of Bagley’s “undermines

confidence” formulation, an argument could be made

(though, as we have said, Badelle does not make it) that the

inconsistency amounts to an unreasonable application of

Supreme Court precedent.

The deferential standard of review under AEDPA requires

that we attempt to reconcile, if possible, arguably conflict-

ing language in state court decisions, and we think the

conflict in the Indiana court’s decision can be reconciled.

The Indiana Court of Appeals referred to Bagley’s “under-

mines confidence” standard in its general discussion of the

law applicable to Brady claims, Badelle II, 754 N.E.2d at

526, and was thus plainly aware of and properly cited to the

applicable federal standard.3 The court then chose slightly

different language to express its conclusion that Badelle’s

claim, while arguably meritorious, fell just short. That is,

the state court’s confidence in the outcome, while eroded by

the prosecution’s nondisclosure, was not undermined to the

degree necessary to support a conclusion that a reasonable

probability of a different result existed. This reading is

consistent with the state court’s ultimate resolution of the

issue: “Nevertheless, standing alone, we cannot say that

[Detective Grant’s] information would have changed the

outcome of Badelle’s trial.” (Emphasis added.) The state

court apparently concluded that although its confidence in

the verdict was “eroded,” it was not so far undermined to

the extent that there was a reasonable probability of a

3

The Badelle II court actually cited Farris v. State, 732 N.E.2d

230, 233 (Ind. App. 2000) for this proposition, but Farris was

a Brady case that relied upon Bagley for a recitation of the

applicable law.

No. 04-1602 13

different outcome. We cannot conclude that this decision is

contrary to or an unreasonable application of clearly

established federal law.

3. Tobin Rice and Reginald “Pee Wee” White

Tobin Rice was an Indiana juvenile probation officer

at the time of the murder and supervised a probationer

named Reginald White. At Badelle’s postconviction hearing,

Rice testified that at some point after the murder of Robert

Kannapel he became aware that Detective Highbaugh was

investigating a lead that someone known as “Pee Wee” had

committed the murder. Because White was known as “Pee

Wee,” Rice called Highbaugh and informed him that “Pee

Wee” and Reginald White were one and the same and that

Rice suspected White may have committed the crime.

The Badelle II court held that this evidence was not

“suppressed” within the meaning of Brady because Detec-

tive Highbaugh was a witness for the defense at Badelle’s

murder trial, and “with reasonable inquiry, Trial Counsel

could have ascertained Rice’s name and information from

Detective Highbaugh.” Badelle II, 754 N.E.2d at 526-27.

Highbaugh apparently became convinced that Badelle

had not committed the Kannapel murder and testified for

the defense.

Evidence is not suppressed for Brady purposes where it

is “available to the defendant through the exercise of

reasonable diligence.” Boss, 263 F.3d at 740. Again, Badelle

offers no argument as to why the state court’s resolution of

this aspect of his Brady claim was contrary to or an objec-

tively unreasonable application of federal law. He merely

restates, virtually verbatim, the argument he made in his

brief in the Indiana Court of Appeals. Plenary review in

habeas cases no longer applies, as we have noted; Badelle

has utterly failed to carry his post-AEDPA burden of proof

on this issue.

14 No. 04-1602

Badelle also claims the prosecution failed to disclose

that “Pee Wee” White had been in the gas station on the

day of the murder and (in Badelle’s self-serving spin on the

testimony) was the person who assisted Edwin Kennedy

in pushing his stalled vehicle off the station’s lot. White

testified at Badelle’s postconviction hearing that he went to

the gas station every morning on the way to work to

get change for the bus. He testified that he was in the

station at 8 a.m. on the morning of the murder to get his

change and that he made Detective Highbaugh aware of

this fact. White testified that before he entered the station

that morning, he helped to push a vehicle “into the filling

station” that had either stalled or gotten stuck in the

snow on the street. White testified that he then got his

change, got on the bus, and went to work; he was not in the

gas station at any time after 8 a.m. on the day of the

murder. (We note White’s postconviction testimony conflicts

with trial testimony that the murderer and others pushed

a stalled car out of the lot on the afternoon of the murder.)

Badelle claims White’s presence at the station on the

day of the murder and the fact that he helped to push a

car onto the lot prior to entering the station were sup-

pressed by the prosecution in violation of Brady. The

Badelle II court held that this information was available to

the defense through the exercise of reasonable diligence

because Badelle was well aware of White and his status

as a possible suspect prior to trial. The court noted again

that Detective Highbaugh was a defense witness at trial

and testified about his investigation of White, and also that

White himself was presented to the jury in the courtroom

during the trial and was asked to stand alongside Badelle

in front of the jury. Badelle II, 754 N.E.2d at 528.

The entirety of Badelle’s “argument” on this issue consists

of a verbatim duplication of the brief he submitted to the

Indiana Court of Appeals, right down to a concluding

statement that the alleged suppression of this evidence

No. 04-1602 15

violated “the Indiana Constitution4.” He has failed to even

reference the existence of the state court’s decision, much

less sustain his burden of demonstrating that the decision

was contrary to or involved an unreasonable application of

clearly established federal law as determined by the

Supreme Court.

4. Footprints

Badelle claims the prosecution suppressed evidence that

“there was a discrepancy as to which way the perpetrator

ran” after leaving the gas station based on the presence

of more than one set of footprints in the snow. Badelle’s

trial attorney died twenty years ago, and Badelle cannot say

whether his attorney knew about a second set of footprints;

he offers only that it is unknown whether his attorney was

made aware of a second set of footprints. It is not surpris-

ing, therefore, that the Indiana Court of Appeals held in

cursory fashion that its “review of the record reveals that a

preponderance of the evidence does not indicate that the

State suppressed information regarding footprints.” Badelle

II, 754 N.E.2d at 529.

On habeas review, we presume that the factual findings

of the state appellate court are correct in the absence of

clear and convincing evidence to the contrary. 28 U.S.C.

§ 2254(e)(1); Ruvalcaba v. Chandler, 416 F.3d 555, 559 (7th

Cir. 2005). Badelle makes no reference to the holding of the

Indiana Court of Appeals; his argument is again comprised

solely of a verbatim copying of the brief he submitted to

that court. He has thus failed to carry his burden under

§ 2254(e)(1).

4

Of course, Badelle is entitled to habeas relief only if he can

prove that he is in custody “in violation of the Constitution or laws

of the United States.” 28 U.S.C. § 2254(a).

16 No. 04-1602

5. Walter Cowherd

Badelle claims that the prosecution suppressed informa-

tion concerning the whereabouts of another possible suspect

in the murder, Walter Cowherd. The Badelle II court

concluded that no evidence had been suppressed regarding

Cowherd because “Badelle’s citations to the record fail to

reveal that the State knew of Cowherd’s location at the time

of trial.” Badelle II, 754 N.E.2d at 534. Badelle’s argument

is once again a verbatim reproduction of the brief he

submitted to the Indiana Court of Appeals and as such does

not even reference the state court’s holding, much less

challenge its underlying facts or explain why it should be

considered contrary to or an unreasonable application of

clearly established federal law.

6. Detective R. C. Green’s Investigation

Detective R. C. Green assisted in the investigation of

Robert Kannapel’s murder for a period of two weeks. Green

testified at the postconviction hearing that he received a tip

that a person matching the description of the killer “hung

around with a young lady” who lived in a certain apartment

building. When Green arrived at the apartment building to

investigate, Detective Highbaugh was already there on

stakeout, following up on his lead that someone named “Pee

Wee” had committed the crime. The two detectives shared

their information and explained to each other the tips that

had brought them to the same building. This was the sum

and substance of Green’s testimony on this point. Badelle

claims the prosecution never revealed to defense counsel the

substance of Green’s investigation and that this suppression

of evidence violated Brady.

The Indiana Court of Appeals held that this informa-

tion was not suppressed within the meaning of Brady

because it was available to Badelle’s trial counsel through

the exercise of reasonable diligence in that Detective

No. 04-1602 17

Highbaugh was a defense witness at trial and the limited

information known to Green was also known to Highbaugh.

Badelle II, 754 N.E.2d at 530. As with his other arguments,

Badelle’s brief on this point is identical to the one he filed

in state court. He has not identified how the state court’s

disposition of this issue was contrary to or an unreasonable

application of clearly established federal law.

7. Deputy Chief Tim Foley and Detective Don

Campbell

Badelle asserts that Deputy Chief of Police Tim Foley

believed that the lead investigator on the case, Detective

Dennis Morgan, lacked the investigative skills to properly

investigate a homicide, that he failed to maintain adequate

case documentation on the homicides he investigated, and

that he likely felt pressure to solve the Kannapel murder.

Detective Don Campbell testified at the postconviction

hearing that Indianapolis police officers often felt depart-

mental pressure to solve cases as quickly as possible.

Badelle argues that this information was “suppressed” by

the prosecution contrary to Brady.

We have searched the record and find no Brady claim

premised on these allegations was brought before the

Indiana Court of Appeals, and no such Brady claim was

asserted in Badelle’s request for review by the Indiana

Supreme Court. There is no mention of this claim in the

Badelle II decision. A habeas petitioner must exhaust

state remedies—that is, give the state courts an opportunity

to address each claim. Mahaffey v. Schomig, 294 F.3d 907,

914 (7th Cir. 2002). To satisfy this requirement, a petitioner

must present to the state judiciary both the operative facts

and legal principles that control each claim. Id.; see also

Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001). The

failure to do so results in a forfeiture of federal review.

18 No. 04-1602

Wilson, 243 F.3d at 327. These claims have not been

preserved for habeas review.

8. The Cabdriver

Approximately two hours after Robert Kannapel was

fatally shot, a cabdriver named Aaron Jensen was robbed

six blocks from the gas station. It was the prosecution’s

theory that the same person committed both crimes, and

Jensen testified at Badelle’s murder trial that Badelle

was the man who robbed him.5 Badelle argues that his

counsel was not informed of Jensen’s identity and the

prosecution’s intention to call him as a witness until the day

before trial was to begin, and that this tactic violated the

prosecution’s obligation to disclose favorable material

evidence to the defense. The Indiana Court of Appeals

rejected this argument:

Here, where Trial Counsel was given notice, albeit short

notice, of the State’s intent to call Jensen to testify, it

cannot be held that the State suppressed information

known to him. Information known to Jensen was

available to Trial Counsel through ‘reasonable diligence’

and therefore was not suppressed by the State.

Badelle II, 754 N.E.2d at 533. Because Badelle’s brief on

this issue is once again nothing more than a duplication of

the brief he filed with the Indiana Court of Appeals, he

neither addresses the court’s ruling on the issue nor posits

any argument as to why it was contrary to or an unreason-

able application of clearly established federal law. We

cannot see how this is a Brady issue in any event; Jensen’s

testimony was hardly favorable to Badelle.

5

Badelle was subsequently convicted of the robbery of Jensen in

a separate proceeding.

No. 04-1602 19

B. Ineffective Assistance of Counsel

1. Defaulted Claims/Strickland Legal Standards

In his brief to this court, Badelle has attempted, in a

single introductory sentence, to convert all of the foregoing

Brady claims into ineffective assistance of counsel claims:

“The State loses either way, because if it is determined that

the State did not unlawfully suppress the matters raised in

this issue, then trial counsel was defective for failing to

pursue those matters.” As we have noted, Badelle then goes

on to reproduce the sections of his state court brief contain-

ing his Brady arguments. Nowhere in this material is there

any discussion of how counsel’s performance fell below an

objective standard of reasonableness or how Badelle’s

defense was prejudiced, nor is there any argument regard-

ing the Indiana court’s application of Strickland v. Wash-

ington, 466 U.S. 668 (1984).

The Brady claims that Badelle wants to reconfigure as

Strickland claims are defaulted for failure to raise them in

the state court. Assertions of error in criminal proceedings

must be raised in state court in order to form the basis for

relief in habeas. Breard v. Greene, 523 U.S. 371, 375 (1998).

Further, the claims raised by a petitioner in state court

must be presented in a manner that fairly alerts the state

court of the “federal constitutional grounds for his claim.”

Porter v. Gramley, 112 F.3d 1308, 1315 (7th Cir. 1997). Fair

presentment of a petitioner’s claims to a state tribunal

requires the petitioner to “give the state courts

a meaningful opportunity to pass upon the substance of the

claims” by presenting “both the operative facts and the

controlling legal principles” that he believes should govern

the analysis. Rodriguez v. Scilla, 193 F.3d 913, 916 (7th Cir.

1999) (citing Picard v. Connor, 404 U.S. 270, 275 (1971));

see also Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir.

1999).

20 No. 04-1602

Federal courts may only review defaulted claims if the

petitioner shows cause for the failure to raise them and

consequent prejudice, or when he shows that a fundamental

miscarriage of justice will occur unless the federal

court hears the claim. Wilson, 243 F.3d at 329. Badelle

makes no attempt to demonstrate cause for his default

but does hint at the possibility that a fundamental mis-

carriage of justice is at stake because he is actually innocent

of the murder and a victim of mistaken identity. We cannot

agree. The evidence against Badelle at trial may have been

conflicting, but we cannot say that an innocent man has

been convicted. Badelle was positively identified as the

killer by the two people who spent considerable time with

him on the afternoon of the murder. We move on to consider

only those claims of ineffective assistance of counsel that

were presented to the Indiana Court of Appeals.

A petitioner asserting an ineffective assistance of counsel

claim under Strickland must show that counsel’s perfor-

mance was deficient and that the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687. To

establish deficient performance, a petitioner must demon-

strate that counsel’s representation fell below an objective

standard of reasonableness. Id. at 688. Strickland requires

a reviewing court to “determine whether, in light of all the

circumstances, the identified acts or omissions were outside

the wide range of professionally competent assistance.” Id.

at 690; Kimmelman v. Morrison, 477 U.S. 365, 386 (1985).

In so doing, “it will generally be appropriate for a reviewing

court to assess counsel’s overall performance throughout the

case in order to determine whether the ‘identified acts or

omissions’ overcome the presumption that counsel rendered

reasonable professional assistance.” Kimmelman, 477 U.S.

at 386. To establish prejudice, the petitioner must show

that there is a reasonable probability that but for coun-

sel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

No. 04-1602 21

probability sufficient to undermine confidence in the

outcome. Id. at 694; Wiggins, 539 U.S. at 534.

2. Inadequate Pretrial Investigation

The Indiana Court of Appeals described Badelle’s chal-

lenge to the adequacy of his attorney’s pretrial investigation

as follows: “Badelle argues that Trial Counsel was ineffec-

tive for failing to conduct a reasonably satisfactory pretrial

investigation that would have uncovered additional wit-

nesses favorable to his defense.” Badelle II, 754 N.E.2d at

538. Exactly which potential witnesses were at issue is not

stated in the Indiana court’s opinion; neither are they

identified in Badelle’s briefing. It is possible that Badelle’s

generic references to “pre-trial investigation” and “addi-

tional witnesses” are meant to refer back to his Brady

claims; we have rejected this attempt at bootstrapping. The

contours of this claim are thus hazy at best, but we press

on.

The Indiana court tackled Badelle’s argument by first

noting that his defense was based on a theory of mistaken

identity and then describing the efforts trial counsel

undertook to support that defense. These included the

following: (1) presenting testimony that Floyd Piles, the gas

station owner, picked Reginald White out of a lineup on one

occasion;6 (2) presenting testimony from Edwin Kennedy

that Badelle was not the man who helped push his vehicle

out of the gas station lot on the day of the crime; (3) chal-

6

Piles viewed lineups on two different days, separated by over a

year. On the first occasion he picked Badelle as the man he

had seen at the station on the day of the murder. A year later, he

selected White. Badelle and White were never presented in the

same lineup. Badelle II, 754 N.E.2d at 539 n.19. At trial Piles

simply could not say whether Badelle was or was not the man

he had seen.

22 No. 04-1602

lenging the mental competence of prosecution witness Joe

Harris; and (4) presenting testimony from Detectives

Highbaugh and Morgan regarding the other individuals

they considered suspects during the course of their investi-

gation. Badelle II, 754 N.E.2d at 539. The court concluded

its analysis as follows:

Clearly the foregoing is not an exhaustive list of the

evidence that Trial Counsel presented to the jury,

however it suffices for our purposes of determining

whether Trial Counsel provided adequate pretrial

investigation and preparation. Trial Counsel’s efforts

were more than adequate to support his defense of

mistaken identity. Accordingly, Trial Counsel’s decision

not to call or seek out additional witnesses was

a judgment call ‘within the wide range of reasonable

professional assistance.’

Id.

Badelle claims this analysis is at odds with Strickland

because it sidesteps consideration of the individual errors

or omissions allegedly constituting defective performance in

favor of an analysis of counsel’s performance as a

whole. But Badelle did not describe (and still has not

described) the particular pretrial investigative errors or

omissions that form the basis of this aspect of his ineffective

assistance of counsel claim. In the absence of a particular-

ized claim of pretrial error by trial counsel, the Indiana

court can hardly be faulted for its generalized evaluation of

counsel’s overall performance. In any event, the premise of

Badelle’s argument is flawed; the test for deficient perfor-

mance is applied “in light of all the circumstances.” Strick-

land, 466 U.S. at 690.

3. Improper Prejudice Standard

Badelle argues that the state court’s formulation of the

prejudice prong of a claim for ineffective assistance of

No. 04-1602 23

counsel was an unreasonable application of Strickland

because it required Badelle to prove that he was “de-

prived . . . of a fair trial” by “a breakdown in the adversarial

process that rendered the result unreliable.” See Badelle II,

754 N.E.2d at 536. We need not address this issue because

the Indiana court never actually applied this formulation to

the facts of the case.

The statement to which Badelle objects is lifted from the

section of the state court’s opinion that precedes its discus-

sion of the specifics (such as they were) of Badelle’s ineffec-

tive assistance claims. In this introductory section, the

court summarized the law applicable to both the deficient

performance and prejudice prongs of a claim under Strick-

land. However, when the court then turned to the applica-

tion of the law to Badelle’s specific claims, not once did the

court find that Badelle had met the initial showing of

deficient performance that would necessitate moving on to

an analysis of possible prejudice.7 Because the Indiana

court had no occasion to proceed to evaluate prejudice, we

need not consider whether its decision was contrary to or an

unreasonable application of the federal standard for

evaluating prejudice in an ineffective assistance of counsel

claim.

4. Pretrial Identifications

Badelle claims his trial counsel rendered ineffective

assistance when he failed to “sufficiently object to the

admissibility of the various pretrial and in-court iden-

tifications” of Badelle by eyewitnesses. On March 25, 1978,

7

The court summarized its holdings as follows: “Here, Badelle

has failed to substantiate any error, by either Trial Counsel or

Appellate Counsel, which would convince this Court that he

received an inadequate defense.” Badelle II, 754 N.E.2d at 543.

24 No. 04-1602

the same day he was arrested, Badelle’s photograph

appeared in an Indianapolis newspaper identifying him as

a suspect in the murder. The newspaper was published

in the afternoon. During the course of that same day,

Detective Morgan separately showed Edwin Kennedy

and Joe Harris an array of six photographs, one of which

was the same photograph of Badelle that appeared in the

newspaper. Kennedy did not identify anyone in the photo

array as the man who assisted in pushing his car out of the

gas station lot. Harris identified Badelle.

Five days later Badelle stood in a lineup viewed by

witnesses Piles, Harris, Kennedy, and Robert Kannapel Jr.

Harris, Piles, and Kannapel identified Badelle; Kennedy did

not identify anyone. Harris and Kannapel testified at trial

and identified Badelle in court as the loitering man in the

gas station who murdered Robert Kannapel Sr.

Badelle argues that the photo array was unduly sugges-

tive because there is a possibility Harris saw the photo-

graph of Badelle in the newspaper prior to being shown

the six photographs. This is pure speculation; there is

nothing in the record suggesting Harris was tainted by the

newspaper photo. Badelle does not explain the factual basis

for his argument that the lineup was unduly suggestive.

Neither contention is sufficient to sustain his challenge to

the Indiana court’s rejection of his ineffective assistance of

counsel claim. If there was no valid basis to object to the

admissibility of the in-court identifications, trial counsel’s

performance cannot have been deficient. The Indiana court

held as much, rejecting this aspect of Badelle’s ineffective

assistance of counsel claim because there was no basis to

challenge the admissibility of the in-court identifications.

Badelle II, 754 N.E.2d at 538.

Challenges to the admissibility of identification evidence

are evaluated by reference to a two-part inquiry that

focuses on whether the identification procedure was unduly

No. 04-1602 25

suggestive and whether the resulting identification is

reliable (and therefore admissible) despite any suggestive-

ness in the pretrial identification procedure. Alexander v.

South Bend, 433 F.3d 550, 555 (7th Cir. 2006) (citing

Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977)); see also

Neil v. Biggers, 409 U.S. 188, 198-99 (1972). The Indiana

Court of Appeals held that because the in-court identifica-

tions were properly admitted, Badelle’s trial counsel cannot

have been ineffective for failing to object to the suggestive-

ness of the pretrial identification procedures. Badelle II, 754

N.E.2d at 538. Badelle has not addressed the state court’s

holding in this regard and persists in his approach of

presenting us only with the identical argument he made to

the Indiana Court of Appeals. In the absence of any argu-

ment that the state court’s decision was contrary to or an

unreasonable application of federal law, habeas relief is

unavailable.

5. Effectiveness of Appellate Counsel

Finally, Badelle’s brief contains two issues that he

denominates as claims for ineffective assistance of appellate

counsel. The Indiana Court of Appeals declined to address

the merits of these claims because Badelle failed to provide

the court with any pertinent citations to the record or case

law support. Badelle II, 754 N.E.2d at 541. The court relied

on Marshall v. State, 621 N.E.2d 308, 318 (Ind. 1993), for its

waiver holding:

[I]t is the responsibility of appellant to support his

argument on appeal with appropriate citations to legal

authorities as well as to appropriate sections of the

record. Bieghler v. State (1985), Ind., 481 N.E.2d 78,

cert. denied, 475 U.S. 1031, 106 S. Ct. 1241, 89 L. Ed.

2d 349. Without citation to legal authority in addition

to citation of the record, we cannot determine the

merits of the claim and, thus, consider the issue waived.

Id.

26 No. 04-1602

Before asserting a habeas claim in federal court, a

petitioner must not only fairly present his claims to the

state courts, he must do so at the time, and in the way,

required by the state. Hogan v. McBride, 74 F.3d 144, 146,

modified on reh’g denied, 79 F.3d 578 (7th Cir. 1996). The

failure to do so bars review in federal court. Id.; see also

Mahaffrey, 294 F.3d at 915. Again, Badelle has demon-

strated neither cause for not adequately presenting his

claims to the state court nor a miscarriage of justice that

would justify overlooking his failure to do so.

For the foregoing reasons, the decision of the district

court denying the petition for a writ of habeas corpus is

AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-22-06