Daniels, Michael v. Knight, Stanley

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-2620

MICHAEL DANIELS,

Petitioner-Appellant,

v.

STANLEY KNIGHT, Superintendent,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 01 C 550—Richard L. Young, Judge.

____________

ARGUED NOVEMBER 2, 2006—DECIDED FEBRUARY 5, 2007

____________

Before BAUER, RIPPLE, and MANION, Circuit Judges.

MANION, Circuit Judge. Michael Daniels was convicted

of robbery and murder in Indiana state court following

a 1978 crime spree in an Indianapolis residential neigh-

borhood. After exhausting his state court remedies, Daniels

filed a petition for habeas relief in federal court under

28 U.S.C. § 2254, claiming he received ineffective assist-

ance of trial counsel. The district court denied Daniels’

petition. Daniels appeals, and we affirm.

2 No. 05-2620

I.

During Michael Daniels’ trial for murder, the State of

Indiana presented evidence that on the evening of Janu-

ary 16, 1978, Daniels and two other men committed a

series hold-up robberies and shootings in an Indianapolis

residential neighborhood. Daniels and his associates

approached people at four separate residences while the

residents were either shoveling snow or getting out of

their cars. During the course of the robberies, Daniels

beat one of his victims and shot two others, one fatally.

Each of Daniels’ six surviving victims and one of Daniels’

cohorts testified against him at his jury trial in Indiana

state court. Daniels was convicted of four counts of rob-

bery, one count of attempted robbery, and one count of

felony murder. He was sentenced to four consecutive

twenty-year terms of imprisonment and one fifty-year

term. Daniels also was sentenced to death for his felony

murder conviction.

Over the last twenty-seven years, Daniels has filed a

series of appeals and post-conviction petitions in the

Indiana and federal courts. First, the Supreme Court of

Indiana affirmed Daniels’ conviction and sentence on

direct appeal. Daniels v. State (Daniels I), 453 N.E.2d 160

(Ind. 1983). Daniels then sought collateral review via a

petition for post-conviction relief, which the Supreme

Court of Indiana ultimately denied. Daniels v. State (Daniels

II), 528 N.E.2d 775 (Ind. 1988). In his first petition for post-

conviction relief, Daniels claimed, among other things,

that he received ineffective assistance of trial counsel.

The United States Supreme Court granted Daniels’ petition

for a writ of certiorari, vacated the Supreme Court of

Indiana’s judgment in Daniels II, and remanded the case

to the Supreme Court of Indiana for further considera-

No. 05-2620 3

tion in light of the Court’s then recent decision in South

Carolina v. Gathers, 490 U.S. 805 (1989). Daniels v. Indiana,

491 U.S. 902 (1989). On remand, the Supreme Court of

Indiana held that neither Gathers nor Booth v. Maryland, 482

U.S. 496 (1987), were retroactive. Daniels v. State, 561

N.E.2d 487, 489-91 (Ind. 1990). On November 22, 1993,

Daniels filed a second petition for post-conviction relief,

which the Supreme Court of Indiana ultimately denied.

Daniels v. State (Daniels III), 741 N.E.2d 1177, 1191 (Ind.

2001). The Supreme Court of Indiana held that Daniels

had waived all of his ineffective assistance of counsel

claims, with the exception of the claim Daniels raised in his

first petition for post-conviction relief; in his first petition

for post-conviction relief, Daniels claimed that his trial

counsel was ineffective because he failed to confront one

of the government’s eyewitnesses, Timothy Streett, with

evidence that Streett had been hypnotized during one of

his identification sessions with police. Id. at 1181-88.

Nonetheless, the Supreme Court of Indiana reviewed on

their merits each of Daniels’ ineffective assistance claims

prior to denying his second petition. Id.

Following the Supreme Court of Indiana’s denial of his

second petition for post-conviction relief, Daniels filed

a petition for habeas relief pursuant to 28 U.S.C. § 2254

in federal court. Daniels v. McBride, No. IP 01-550-C-Y/K

(S.D. Ind. Apr. 7, 2005). Daniels’ § 2254 petition raised

multiple claims, including ineffective assistance of trial

counsel, the state withholding or destroying evidence, and

ineffective assistance of appellate counsel. On January 7,

2005, while Daniels’ § 2254 petition was pending before the

district court, then-Indiana Governor Joseph E. Kernan

commuted Daniels’ sentence of death to life imprison-

ment without the possibility of parole. Three months later,

4 No. 05-2620

the district court denied Daniels’ § 2254 petition. In deny-

ing Daniels’ petition, the district court did not address

the Supreme Court of Indiana’s finding that Daniels had

waived all but one of his ineffective assistance of counsel

claims, but instead denied each of Daniels’ claims on the

merits. The district court subsequently granted Daniels’

motion for a certificate of appealability. Daniels appeals

only the district court’s denial of his claims based on

alleged ineffective assistance of counsel during the guilt

phase of his trial.

II.

On appeal, Daniels reiterates a laundry list of grounds

for his claims of ineffective assistance of counsel during

the guilt phase of his trial. His allegations break down

into two categories: (1) his counsel’s failure to introduce

evidence that someone other than Daniels (specifically,

Paul Rowley) committed the robberies; and (2) his coun-

sel’s failure to confront Streett regarding his identifica-

tion after being hypnotized. The Supreme Court of Indi-

ana held that Daniels waived all of his ineffective assis-

tance claims, except for his claim that his counsel failed to

confront Streett, because Daniels failed to raise those

claims in his first post-conviction appeal. The district

court did not address the waiver issue, but, as a threshold

matter, we must determine whether Daniels procedurally

defaulted any of the claims he raises in this appeal.

“Out of respect for finality, comity, and the orderly

administration of justice, a federal court will not entertain

a procedurally defaulted constitutional claim in a petition

for habeas corpus absent a showing of cause and prejudice

No. 05-2620 5

to excuse the default1.” Dretke v. Haley, 541 U.S. 386, 388

(2004). Quoting the United States Supreme Court, the

Supreme Court of Indiana reiterated this point, stating:

The States possess primary authority for defining and

enforcing the criminal law. In criminal trials they also

hold the initial responsibility of vindicating constitu-

tional rights. Federal intrusions into state criminal

trials frustrate both the States’ sovereign power to

punish offenders and their good-faith attempts to

honor constitutional rights.

Woods v. State, 701 N.E.2d 1208, 1217 (Ind. 1998) (quoting

Engle v. Isaac, 456 U.S. 107, 128 (1982) (citation omitted)).

The Supreme Court of Indiana further explained:

Hence as a matter of procedural fairness a finding of

waiver by an Indiana court must be predicated on a

meaningful opportunity to litigate the claim. Alterna-

1

The Supreme Court recognized two exceptions to this rule:

“when habeas applicant can demonstrate that the alleged

constitutional error has resulted in the conviction of one who

is actually innocent of the underlying offense or, in the capital

sentencing context, of the aggravating circumstances rendering

the inmate eligible for the death penalty.” Dretke, 541 U.S. at 388.

Daniels, however, does not argue for or meet either exception.

First, he does not attempt to demonstrate that his counsel’s

alleged errors resulted resulted in the conviction of one who

is actually innocent of the underlying offense. (Appellant’s

Opening Br. at 46 (“Appellant simply asks the Court to recog-

nize the obvious proposition that Appellant received woe-

fully inadequate counsel and give him the opportunity for the

fair trial he never received.”).) Second, his original capital

sentence was commuted to life imprisonment without the

possibility of parole.

6 No. 05-2620

tively, if an ineffectiveness claim found to be waived

in our courts is nonetheless addressed on the merits in

federal court, this State will have foregone the op-

portunity to correct the possible error before federal

review of our judicial process. One goal of our

postconviction rules is to minimize the level of federal

constitutional error before federal review of the con-

viction: “[O]ne of the functions of our post convic-

tion remedy rules is to preserve what sanctity remains

to this [S]tate’s disposition of a criminal charge by

allowing a convicted criminal defendant ample op-

portunity to present claims for relief in the courts of

this state before resort must be had to the federal

courts.” Langley v. State, 267 N.E.2d 538, 541 (Ind. 1971).

Id. at 1217-18.

In Daniels III, the Supreme Court of Indiana addressed

how the waiver doctrine impacted Daniels’ ineffective

assistance of trial counsel claims. In addition to his unsuc-

cessful direct appeals of his sentence, Daniels had filed

two sets of post-conviction petitions. Regarding the

ineffective assistance of trial counsel claims Daniels

presented in a second post-conviction petition, the Su-

preme Court of Indiana held:

[A]ll of these matters were known or knowable both at

trial and at the time of Daniels’ first post-conviction

proceeding. Therefore, the post-conviction court

correctly held that Daniels’ new claims of trial coun-

sel ineffectiveness were barred by res judicata and waiver.

As this Court observed in our last opinion in this case,

“the Indiana Rules of Procedure for Post-Conviction

Remedies require that all grounds for relief available

to a petitioner under the post-conviction rules must

be raised in the original petition.” State v. Daniels, 680

No. 05-2620 7

N.E.2d 829, 835 n.10 (Ind. 1997) (citing Ind. Post-

Conviction R. 1(8)).

[T]he issue of the effectiveness of Daniels’ trial and

appellate counsel was extensively litigated and

appealed in his post-conviction proceeding nine

years ago. Daniels v. State [Daniels II], 528 N.E.2d

775 (Ind. 1988). The issues raised by Daniels in this

appeal were on the face of the record from the time

of his trial. Accordingly, consideration of addi-

tional issues bearing on trial or appellate coun-

sel’s ineffectiveness that were available at that

time is precluded. Id. [citations omitted]

We must mean what we say in our rules, that a

defendant is entitled to one post-conviction hearing

and one post-conviction opportunity to raise the issue

of ineffectiveness of trial counsel in the absence of

newly discovered evidence . . . .

Although the evidence related to Rowley might have

helped Daniels’ defense, none of these lines of inquiry

except for Timothy Streett’s identification were ad-

dressed either at trial or as examples of ineffective trial

assistance at the first post-conviction proceeding. . . .

In sum, we reaffirm the sound and long-established

principle that considerations of finality preclude re-

litigation of previously available contentions in suc-

cessive post-conviction proceedings.

Daniels III, 741 N.E.2d at 1184-85 (citing Baum v. State, 533

N.E.2d 1200, 1201 (Ind. 1989) and Resnover v. State, 547

N.E.2d 814, 816 (Ind. 1989) (emphasis added)).

Daniels argues, however, that the Supreme Court of

Indiana’s decision in Daniels III does not require a finding

8 No. 05-2620

of procedural default, because we cannot reasonably

discern whether that court based its holding upon the

principle of res judicata or the principle of waiver. This

distinction is important because an application of res

judicata is not an adequate bar to federal review, but a

finding of waiver is a procedural default prohibiting

federal review. See Moore v. Bryant, 295 F.3d 771, 775-77

(7th Cir. 2002) (finding federal review not prohibited by

state court’s application of only res judicata to bar claim).

As we have noted previously, “a state court’s invocation

of res judicata ‘simply means that the state courts have

already resolved the matter and want nothing more to do

with it.’ ” Id. at 776 n.1 (quoting Porter v. Gramley, 112 F.3d

1308, 1316 (7th Cir. 1997)). A finding of waiver, on the

other hand, “must be predicated on a meaningful op-

portunity to litigate the claim” and a finding that the

litigant elected not to pursue the claim when presented

with the opportunity to do so. See Woods, 701 N.E.2d

at 1217-18.

Contrary to Daniels’ argument, it is clear from Daniels III

that the Supreme Court of Indiana was relying on the

principle of waiver. In its opinion in Daniels III, the Su-

preme Court of Indiana stated that its holding was

based on waiver and articulated the rationale for its find-

ing when it stated that “[a]though evidence related to

Rowley might have helped Daniels’ defense, none of

these lines of inquiry except for Timothy Streett’s identifi-

cation were addressed either at trial or as examples of

ineffective trial assistance at the first post-conviction

proceeding.” Daniels III, 741 N.E.2d at 1185. The basis for

its waiver holding is most clearly expressed in its con-

clusion that “we reaffirm the sound and long-established

principle that considerations of finality preclude re-litiga-

No. 05-2620 9

tion of previously available contentions in successive post-

conviction proceedings.” Id. The Daniels III court also

clarified its understanding of the distinction between res

judicata and waiver when it stated:

[W]e adhere to the view that claims of ineffective

assistance of counsel, if litigated at the initial post-

conviction proceeding, are barred by the doctrine of

res judicata in successive petitions of post-conviction

relief, and any acts or omissions of the trial counsel that

were available in the first post-conviction proceeding

but not raised are waived in a successive petition. This

doctrine controls the disposition of this case.

Daniels III, 741 N.E.2d at 1187 (emphasis added). We thus

find that the Supreme Court of Indiana relied upon the

doctrine of waiver to bar by procedural default all of

Daniels’ ineffective assistance of counsel claims, except

his claim related to Streett’s identification.

Daniels also contends that even were the Supreme Court

of Indiana’s holding in Daniels III based on waiver, he

should not be procedurally defaulted from raising his

claims because the Indiana rules regarding waiver were

not “firmly established and regularly followed” at the time

he filed his first petition for post-conviction relief in 1984.

See Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (“[O]nly

a ‘firmly established and regularly followed state prac-

tice’ may be interposed by a State to prevent subsequent

review by this Court of a federal constitutional claim.”

(quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984))).

Specifically, Daniels argues that the Supreme Court of

Indiana did not settle uncertainties regarding its waiver

doctrine until its decision in Woods v. State, 701 N.E.2d

1208 (Ind. 1998). Daniels, however, reads Woods too

broadly. The unsettled issue in Woods was whether a

10 No. 05-2620

defendant must raise ineffective assistance of counsel

claims on direct appeal, or whether a defendant can raise

them for the first time in a petition for post-conviction

relief. Woods, 701 N.E.2d at 1213-15. The Woods court

concluded that “ineffective assistance may be raised on

direct appeal, but if it is not, it is available in post-

conviction proceedings.” Id. at 1216. The Woods holding

had nothing to do with the issue here, which is wheth-

er Daniels waived his ineffective assistance of counsel

claims raised for the first time in a second petition for post-

conviction relief after electing not to raise those claims

in his first petition for post-conviction relief. The answer

to that question is found in Rule 1(8) of the Indiana Rule

of Procedure for Post-Conviction Remedies, entitled

“Waiver or failure to assert claims,” and the case law

interpreting it, which predate Daniels’ first petition for

post-conviction relief. Ind. Post-Conviction R. 1(8) (“All

grounds for relief available to a petitioner under this rule

must be raised in his original petition.”); see, e.g., Jewell v.

State, 397 N.E.2d 946, 947 (Ind. 1979) (finding waiver

for failure to assert claims available in first petition for

post-conviction relief); Lamb v. State, 325 N.E.2d 180, 184

(Ind. 1975) (“[I]nasmuch as the petition was an attempt to

raise an issue available to the defendant under his first

petition but not therein raised, and there was no error

in summarily dismissing the petition.”). Further, even

though the two cases cited by the Daniels III court to

support its waiver holding, Baum v. State, 533 N.E.2d 1200

(Ind. 1989), and Resnover v. State, 547 N.E.2d 814 (Ind.

1989), were not decided prior to the date on which Daniels

filed his first petition for post-conviction relief, those cases

represent only two of the more recent decisions in the

Supreme Court of Indiana’s long-established line of

authority interpreting Rule 1(8). See Resnover, 547 N.E.2d

No. 05-2620 11

at 816 (discussing the Supreme Court of Indiana’s history

of post-conviction petition waiver decisions). We thus

find that the waiver rule applied by the Daniels III court

was “firmly established and regularly followed” at the time

Daniels filed his first petition for post-conviction relief.

Accordingly, we hold that all of Daniels’ ineffective

assistance of counsel claims, except his claim related to

Streett’s identification which was raised in his first peti-

tion for post-conviction relief, are barred by procedural

default based on the Supreme Court of Indiana’s finding

of waiver in Daniels III.

In his sole non-procedurally defaulted claim, Daniels

argues that the district court erred in denying his § 2254

habeas petition because his trial counsel’s failure to raise

the issue of Timothy Streett’s identification after he was

hypnotized was so woefully inadequate and prejudicial

that it requires a new trial. Timothy Streett was the then-

fifteen-year-old son of Daniels’ murder victim, Allen

Streett. Timothy Streett witnessed Daniels shoot his

father in the family’s driveway after his father informed

Daniels that he could not give him his wallet because

he was not carrying it. The Supreme Court of Indiana

previously rejected Daniels’ claims regarding Streett’s

identification when Daniels raised them in his first petition

for post-conviction relief. Daniels II, 528 N.E.2d at 779-80;

see also Daniels III, 741 N.E.2d at 1182 n.5 (discussing

holding of Daniels II). In his first petition for post-convic-

tion relief, and in his § 2254 petition, Daniels alleged that

his trial counsel provided ineffective assistance in violation

of the Sixth Amendment by failing to challenge Streett’s

identification testimony based on the fact that Streett

underwent hypnosis during an identification session

with police. Daniels further alleges that this error was

12 No. 05-2620

compounded by his trial counsel’s failure to inform the

jury that Streett had been hypnotized, had only identi-

fied Daniels after hypnosis, and had made a “possible”

identification of another man while hypnotized. We review

the district court’s denial of habeas relief de novo. Goodman

v. Bertrand, 467 F.3d 1022, 1026 (7th Cir. 2006).

Our review of this claim is governed by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). 28

U.S.C. § 2254(d); see also Lambert v. McBride, 365 F.3d 557,

561 (7th Cir. 2004). Under the AEDPA, if a state court

adjudicated a constitutional claim on the merits, then a

federal court may grant habeas relief only if the state

court decision was contrary to, or involved an unreason-

able application of, Supreme Court precedent or if the

state court decision was based on an unreasonable deter-

mination of the facts in light of the evidence presented in

the state proceeding. 28 U.S.C. § 2254(d); see also Williams

v. Taylor, 529 U.S. 362, 376-77 (2000) (discussing the

AEDPA). Daniels bears the burden of proving that the

Supreme Court of Indiana’s application of federal law

was unreasonable. Harding v. Sternes, 380 F.3d 1034, 1043

(7th Cir. 2004). As this court has stated previously, the

“unreasonable application” prong of § 2254(d) “is a

difficult standard to meet.” Jackson v. Frank, 348 F.3d 658,

662 (7th Cir. 2003).

The Supreme Court set forth the framework for assessing

Sixth Amendment ineffective assistance of counsel claims

in Strickland v. Washington, 466 U.S. 668 (1984); see also

Goodman v. Bertrand, 467 F.3d 1022, 1027 (7th Cir. 2006)

(applying Strickland). The Strickland framework was

clearly established by the time the Indiana trial court

denied Daniels’ first post-conviction appeal on February

21, 1985. See Williams, 529 U.S. at 391 (“It is past question

No. 05-2620 13

that the rule set forth in Strickland qualifies as ‘clearly

established Federal law, as determined by the Supreme

Court of the United States.’ ” (citation omitted in original));

see also United States v. Payne, 741 F.2d 887, 890-95 (7th Cir.

1984) (applying the Strickland framework to case briefed

and argued before this court prior to the Supreme

Court issuing its Strickland decision). The Supreme Court

framed the determinative question as “whether counsel’s

conduct so undermined the proper functioning of the

adversarial process that the trial cannot be relied on as

having produced a just result.” Strickland, 466 U.S. at 686.

Under Strickland, Daniels must prove two elements: (1) that

his trial counsel’s performance fell below “an objective

standard of reasonableness,” id. at 688; and (2) “that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different,” id. at 694. For the first ele-

ment, this court’s review of the attorney’s performance is

“highly deferential” and “reflects a strong presumption

that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circum-

stances, the challenged action might be considered sound

trial strategy.” Id. at 689. For the second element, the

defendant must show that “counsel’s errors were so

serious as to deprive the defendant of a fair trial, a trial

whose result is reliable.” Id. at 687. Daniels’ failure to

establish either element of the Strickland framework will

result in denial of his claim. Rastafari v. Anderson, 278 F.3d

673, 688 (7th Cir. 2001). Finally, “a state-court holding

is not contrary to clearly established federal law” even if

it fails to cite Supreme Court precedent, “as long as ‘neither

the reasoning nor the result of the state-court decision

14 No. 05-2620

contradicts them.’ ” Harrison v. McBride, 428 F.3d 652, 666

(7th Cir. 2005) (quoting Early v. Packer, 537 U.S. 3, 8 (2002)).

As an initial matter, we note that Daniels failed to

show any evidence that the various recitations of evi-

dence and factual findings by the Indiana state courts

were incorrect, so we presume those courts’ findings of

fact to be correct. See Foster v. Schomig, 223 F.3d 626, 631

(7th Cir. 2000) (applying 28 U.S.C. § 2254(e)(1)) (“Findings

of fact made by the state courts are presumed to be cor-

rect and this presumption may be rebutted only by clear

and convincing evidence.”). Next, we look to the Supreme

Court of Indiana’s analyses in Daniels II and Daniels III to

determine whether they were contrary to Strickland. In

addressing Daniels’ claim regarding Streett’s identifica-

tion after being hypnotized, the Daniels II court specifically

cited Strickland as the basis for its analysis and quoted its

framework. Daniels II, 528 N.E.2d at 779. Applying Strick-

land, the Daniels II court found that Streett had an inde-

pendent basis for his identification of Daniels, which

was untainted by the hypnosis session. Id. That independ-

ent basis rendered harmless Daniels’ trial counsel’s failure

to raise Streett’s identification after being hypnotized. Id.

The Daniels II court also noted that Daniels’ trial counsel

testified that they believed that the key to the case was

the testimony of Kevin Edmonds, one of the participants

in the crime who identified Daniels as the triggerman. Id.

Daniels’ trial counsel also testified that, compared to

Edmonds’ testimony, they did not believe Streett’s testi-

mony was of great importance. Id. They further testified

that when Streett was being questioned on the witness

stand, he was on the verge of breaking down and any

further attempts to discredit his identification would

appear to be an attack on the son of the murder victim.

No. 05-2620 15

Based on that testimony, the Daniels II court rejected

Daniels’ claim, concluding:

Clearly a decision was made to concentrate on dis-

crediting Edmonds rather than Timothy Streett in order

to avoid alienating the jury with extensive cross-

examination of the victim’s fifteen-year old son. The

propriety of this decision will not be questioned based

on hindsight, even if the strategy were poor, it does

not rise to the level of ineffective assistance.

Id. The Daniels III court reiterated its earlier holding by

stating that “[w]e denied relief because Streett had an

independent basis for his in-court identification that

was untainted by the hypnosis” and because “Streett was

only one of several eyewitnesses who testified to the

various crimes charged.” Daniels III, 741 N.E.2d at 1182 n.5.

The district court, in considering Daniels’ § 2254 peti-

tion, began by addressing the Strickland framework’s first

element: whether Daniels received ineffective assistance

of trial counsel “in the context of the case as a whole,

viewed at the time of the conduct, and [with] a strong

presumption that the defendant received effective assis-

tance.” Hardamon v. United States, 319 F.3d 943, 948 (7th

Cir. 2003). We begin our analysis there as well. “There are

countless ways to provide effective assistance in any given

case.” Strickland, 466 U.S. at 689. It is “all too easy for a

court, examining counsel’s defense after it has proved

unsuccessful, to conclude that a particular act or omission

of counsel was unreasonable.” Id. Thus, “only a clear

error in applying Strickland’s standard would support a

writ of habeas corpus.” Holman v. Gilmore, 126 F.3d 876,

882 (7th Cir. 1997). Here, Daniels’ trial counsel made a

tactical decision to subject one of Daniels’ cohorts to more

intensive cross-examination, while going easier on the

16 No. 05-2620

traumatized son of the murder victim. Because Streett

had an independent, non-tainted basis for his in-court

identification, we find the conduct of Daniels’ trial counsel

conduct fell within the wide range of reasonable profes-

sional assistance. Accordingly, Daniels cannot

satisfy Strickland’s first element. We further agree with

the district court that Daniels was not prejudiced by

the representation he received at trial and he cannot

satisfy Strickland’s second element because any error re-

garding raising Streett’s identification after being hypno-

tized was harmless. We therefore hold that the Su-

preme Court of Indiana did not unreasonably apply the

Strickland framework to bar Daniels’ petition for post-

conviction relief claim related to Streett’s identification,

and we affirm the district court’s denial of Daniels’ § 2254

petition.

III.

The Supreme Court of Indiana held in Daniels III that

Daniels waived all of his ineffective assistance of counsel

claims, except his claim regarding Streett’s identification

after being hypnotized, because Daniels failed to raise

those claims in his first petition for post-conviction relief.

Daniels thus was barred by procedural default from raising

those waived claims in his § 2254 petition, and the district

court should not have considered the merits of those

claims. We affirm the district court’s denial of Daniels’

sole remaining ineffective assistance of counsel claim;

the district court correctly held that the Supreme Court

of Indiana properly applied the Strickland framework to

deny Daniels’ claim regarding Streett’s identification after

being hypnotized. The district court’s denial of Daniels’

§ 2254 petition is AFFIRMED.

No. 05-2620 17

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—2-5-07