Ben-Yisrayl, Obadyah v. Buss, Ed

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 07-2151 and 07-2281

O BADYAH B EN-Y ISRAYL, formerly known as

C HRISTOPHER P ETERSON,

Petitioner-Appellant,

Cross-Appellee,

v.

E DWIN G. B USS, Superintendent,

Respondent-Appellee,

Cross-Appellant.

____________

Appeals from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 06 C 577—Allen Sharp, Judge.

____________

A RGUED JANUARY 11, 2008—D ECIDED A UGUST 28, 2008

____________

Before B AUER, P OSNER and E VANS, Circuit Judges.

B AUER, Circuit Judge. Obadyah Ben-Yisrayl, formerly

known as Christopher Peterson, was convicted of two

counts of murder by an Indiana jury. After extensive

proceedings through the Indiana and federal courts, he

2 Nos. 07-2151 and 07-2281

was ultimately sentenced to two consecutive sixty-year

terms of imprisonment. He filed a petition for a writ of

habeas corpus, claiming various constitutional violations.

The district court denied the petition in part and granted

the petition in part. We reverse the district court’s grant

of the petition and affirm the denial.

I. BACKGROUND

On the afternoon of December 19, 1990, Ilija (Eli) and

George Balovski were found dead inside their tailor shop

in Gary, Indiana. Both died of shotguns wounds to the

head.

Shortly after the Balovski killings, Antwion McGee, a

friend of Ben-Yisrayl’s, met with Ben-Yisrayl, who told

McGee that he “got the guys at the tailor shop” and then

described the murders in detail. McGee passed this

information on to the police. The police then went to Ben-

Yisrayl’s home and obtained consent to search the home

from petitioner’s mother, who lived with him. After

searching the home, the police discovered a shotgun in

Ben-Yisrayl’s closet, which tests later confirmed had fired

a spent shell casing found at the scene of the Balovski

murders. The police took Ben-Yisrayl into custody, where-

upon he confessed to shooting the Balovskis, giving a

detailed account of the murders. Ben-Yisrayl was further

questioned about a series of other murders that had

occurred in the area surrounding Gary which, because of

the weapon involved, were called in media reports the

“shotgun killings.” Ben-Yisrayl admitted to being the

shooter in all seven of these other shootings.

Nos. 07-2151 and 07-2281 3

Ben-Yisrayl was tried for the seven shootings over a

span of four trials. At each trial, the prosecution relied on

evidence that (1) the shotgun used in the shootings was

found in Ben-Yisrayl’s bedroom; and (2) Ben-Yisrayl

confessed to the shootings. Ben-Yisrayl presented evid-

ence that a “light-skinned man” matching the descrip-

tion of a composite sketch obtained by the police was

seen in the vicinity of each of the crimes (Ben-Yisrayl

describes himself as a “dark-skinned black man”). In the

first two trials, Ben-Yisrayl was acquitted. He was con-

victed in the third trial of two counts of murder (the

“Porter County convictions”), but this court held that the

prosecutor’s improper closing statements rendered the

convictions constitutionally invalid. Ben-Yisrayl v. Davis,

431 F.3d 1043 (7th Cir. 2005). He has yet to be retried

for these shootings. It is the fourth trial, in which Ben-

Yisrayl was convicted, that gave rise to the appeal before

us today.

On May 4, 1992, a jury convicted Ben-Yisrayl of murder-

ing the Balovski brothers. On June 5, 1992, the Indiana

trial judge, over the jury’s recommendation, imposed the

death penalty. Ben-Yisrayl’s conviction and sentence

were affirmed by the Indiana Supreme Court. Peterson v.

State, 674 N.E.2d 528 (Ind. 1996). He filed a petition for

post-conviction relief, which the trial court denied; the

Indiana Supreme Court affirmed the denial. Ben-Yisrayl v.

State, 729 N.E.2d 102 (Ind. 2000). The state court judg-

ment against Ben-Yisrayl became final on December 14,

2000.

Next he turned to the federal court, filing a motion for

writ of habeas corpus challenging his conviction and

4 Nos. 07-2151 and 07-2281

sentence. That petition was denied. Ben-Yisrayl v. Davis, 245

F. Supp. 2d 960 (N.D. Ind. 2002). While his appeal from

that decision was pending, the Indiana Supreme Court

issued Saylor v. Indiana, 808 N.E.2d 646 (Ind. 2004), ruling

that a defendant could not be sentenced to death over a

jury’s recommendation to the contrary. Ben-Yisrayl then

filed a new petition for post-conviction relief, which the

Indiana Supreme Court granted, vacating his death

sentence. We then dismissed Ben-Yisrayl’s appeal before

this court on October 29, 2004 under Younger v. Harris, 401

U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) for lack of

jurisdiction, finding that, because Ben-Yisrayl had not been

resentenced by an Indiana court, the judgment had not

become final. Ben-Yisrayl v. Davis, 114 Fed. App’x 760 (7th

Cir. 2004) (unpublished order). We noted that Ben-Yisrayl

could refile his habeas petition after resentencing and

after he exhausted his state court remedies.

On December 13, 2004, the Indiana trial court imposed

two consecutive sixty-year terms. The Indiana Court of

Appeals affirmed the sentence. After his petition for

rehearing and petition to transfer jurisdiction to the

Indiana Supreme Court were both denied, Ben-Yisrayl

filed the habeas petition at bar.

The district court entered an Amended Memorandum

Opinion and Order on May 3, 2007, granting the writ with

regard to the two sixty-year terms of incarceration based

on the court’s conclusion that the invalid Porter County

convictions played too great a role in the imposition of

the sentence, but denying the remainder of the petition,

relying on the reasoning in the first denial of habeas in

2002. This timely appeal followed.

Nos. 07-2151 and 07-2281 5

II. DISCUSSION

On appeal, Ben-Yisrayl argues that the district court

erred by (1) finding that the Indiana Supreme Court

had not unreasonably applied Strickland v. Washington;

(2) rejecting Ben-Yisrayl’s challenge to the admission of his

confession; and (3) rejecting Ben-Yisrayl’s Brady claim

regarding a failure to disclose exculpatory evidence. On

cross-appeal, the State argues that the district court had

no authority to grant habeas relief with respect to Ben-

Yisrayl’s sentence. We review each issue in turn.

We review de novo the district court’s denial of a habeas

petition. Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), we may grant habeas relief only

if the state court’s “decision was contrary to, or involved

an unreasonable application of, Supreme Court precedent,”

or “resulted in a decision that was based on an unreason-

able determination of the facts in light of the evidence

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

§ 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 376, 120

S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “contrary to”

clause of § 2254(d)(1), the habeas petitioner must show

that the state court’s decision “applie[d] a rule that con-

tradicts the governing law set forth in [Supreme Court]

cases” or if the court “decides a case differently than [the

Supreme Court] has done on a set of materially indistin-

guishable facts.” Calloway v. Montgomery, 512 F.3d 940, 943

(7th Cir. 2008) (citing Williams, 529 U.S. at 405, 120 S.Ct.

1495 and Bell v. Cone, 535 U.S. 685, 686, 122 S.Ct. 1843, 152

L.Ed.2d 914 (2002)). Under the “unreasonable application”

clause, a petitioner must show that the state court’s

6 Nos. 07-2151 and 07-2281

decision unreasonably extended a rule to a context where

it should not have applied or unreasonably refused to

extend a rule to a context where it should have applied.

Virsnieks, 521 F.3d at 713 (citing Jackson v. Miller, 260 F.3d

769, 774 (7th Cir. 2001)); see also Wright v. Van Patten, ___

U.S. ___, 128 S.Ct. 743, 746-47, 169 L.Ed.2d 583 (2008)

(emphasizing that a state court’s application of clearly

established law is acceptable, even if it is likely incorrect,

so long as it is reasonable). We presume state factual

findings to be correct, unless the petitioner rebuts the

presumption by clear and convincing evidence. See 28

U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240, 125

S.Ct. 2317, 162 L.Ed.2d 196 (2005); Wiggins v. Smith, 539

U.S. 519, 528, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Barrow

v. Uchtman, 398 F.3d 597, 603 (7th Cir. 2005). The presump-

tion of correctness also applies to factual findings made

by a state court of review based on the trial record. Sumner

v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722

(1981); Rodriguez v. Peters, 63 F.3d 546, 554 (7th Cir. 1995);

see Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007).

As a general matter, under post-AEDPA habeas law, we

defer to a great extent to the decisions of the state courts,

and review these decisions for reasonableness only. Badelle

v. Correll, 452 F.3d 648, 654 (7th Cir. 2006).

A. Ineffective Assistance of Counsel

Ben-Yisrayl argues that his Sixth Amendment right to

counsel was violated by his trial counsel’s negligent

Nos. 07-2151 and 07-2281 7

failure to call Patrick Fleming to testify.1 He argues that, in

ruling against him, the Indiana Supreme Court unreason-

ably applied Strickland and unreasonably determined the

facts in doing so.

As part of his post-conviction petition, Ben-Yisrayl

submitted the affidavit of Fleming, who stated that he was

in Eli Balovski’s tailor shop on the afternoon of the mur-

ders, and that as he was leaving the shop at 4:10 or 4:20

p.m., he noticed a car on the opposite side of the street

from the tailor shop with a person in the driver’s seat.

Fleming got in his own car, made a U-turn, and drove past

the car. He noticed that the man was “white” with dark

1

In his petition and on appeal, Ben-Yisrayl argues that he is

entitled to habeas relief under Strickland not only for his trial

counsel’s failure to call Fleming, but also for trial counsel’s

(1) failure to read the discovery provided to him by the state

which included information relating to Fleming and (2) failure

to investigate the exculpatory statements. However, he did not

raise these two latter issues in the Indiana courts, and the

Indiana Supreme Court did not address these other grounds,

either in its denial of post-conviction relief or its denial of Ben-

Yisrayl’s successive post-conviction relief petition. To preserve

a federal claim for collateral review, a petitioner must fairly

present the federal nature of his claim to the state courts.

O’Sullivan v. Boerckel, 526 U.S. 838, 845-48, 119 S.Ct. 1728, 144

L.Ed.2d 1 (1999). Fair presentation requires that “both the

operative facts and the controlling legal principles” be sub-

mitted to the state courts. Hough v. Anderson, 272 F.3d 878, 892

(7th Cir. 2001). We therefore will only address the Indiana

Supreme Court’s application of Strickland to Ben-Yisrayl’s

counsel’s failure to call Fleming.

8 Nos. 07-2151 and 07-2281

hair and dark eyes, and when he drove past, the man

reached between his legs and “made sure that I couldn’t

see what he had there.” Fleming thought the man had a

gun. He also thought that the man in the car was one of

the men in the composite sketches published in area

newspapers relating to the shotgun shootings. This infor-

mation was available to Ben-Yisrayl’s counsel at trial.2

Ben-Yisrayl’s argument before the Indiana Supreme

Court rested primarily on a comparison of the evidence in

the Gary murder trial, where he was convicted, and the

first two trials, where he was acquitted. Specifically, he

noted in his first two trials he was able to present evidence

placing a “light-skinned man” at the scene of the crime,

whereas in the Gary murder trial he was not. Had he

introduced this evidence through Fleming at the trial for

the Balovski murders, Ben-Yisrayl argued before the

Indiana Supreme Court and argues before us, the out-

come would have followed that of his earlier acquittals.

The Indiana Supreme Court examined Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984), in evaluating Ben-Yisrayl’s claim of ineffective

assistance. To succeed under Strickland, as the Indiana

Supreme Court understood, one must show that trial

counsel’s performance fell below an objective standard of

2

In the post-conviction proceedings, Ben-Yisrayl’s trial

counsel argued that the State had not disclosed this informa-

tion prior to trial. The post-conviction court ultimately found

that the State had, in fact, turned over the Fleming information

as part of discovery.

Nos. 07-2151 and 07-2281 9

reasonableness and that prejudice resulted. Id. at 687-88,

693, 104 S.Ct. 2052. For the first prong, review of trial

counsel’s performance “must be highly deferential” and

“every effort [must] be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct

from counsel’s perspective at the time.” Johnson v. Loftus,

518 F.3d 453, 457 (7th Cir. 2008) (quoting Strickland, 466

U.S. at 689, 104 S.Ct. 2052)). A petitioner must overcome

the “presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strat-

egy.’ ” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct.

2052)). To show prejudice, the petitioner “must show that

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

unprofessional errors, the result of the proceeding would

have been different.” Strickland, 466 U.S. at 694, 104 S.Ct.

2052. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Id. Again, for

the purposes of our review, the state court’s application

of these principles must be objectively unreasonable and

not merely erroneous. Yarborough v. Gentry, 540 U.S. 1, 5,

124 S.Ct. 1, 157 L.Ed.2d 1 (2003).

Ben-Yisrayl claims the Indiana Supreme Court made

two errors, one under 28 U.S.C. § 2254(d)(1) and another

under § 2254(d)(2). Ben-Yisrayl first submits that the

Indiana Supreme Court unreasonably applied Supreme

Court precedent in finding that he was not prejudiced by

his trial counsel’s failure to call Fleming. The Indiana

Supreme Court, applying the Strickland standard, assumed

a deficiency of counsel’s performance but found Ben-

Yisrayl failed to satisfy the prejudice requirement. The

10 Nos. 07-2151 and 07-2281

Court pointed to the substantial evidence presented at

trial—most critically, the shotgun found in Ben-Yisrayl’s

closet and his confession to the killings—and noted that

Fleming’s testimony would not have “unerringly or

unmistakably” led to a different conclusion. Though

Fleming “thought” the man had a gun in the car, he did

not actually see a gun; and though there is some dispute

about the timing of the identification and the shooting

(more on this below), Fleming would not have been able

to undisputably put the man in the car at the scene near

the time of the shooting. Without these potentially ex-

culpatory details, the Indiana Supreme Court found, the

Strickland claim must fail.

Ben-Yisrayl disagrees with this result; again, our review

under the “unreasonable application” clause of 28 U.S.C.

§ 2254(d)(1) is limited to whether the Court extended a

rule to an inapplicable context or refused to extend a rule

to an applicable context. Neither of these situations is

present here. The Court properly weighed the strength of

the evidence against Ben-Yisrayl against Fleming’s af-

fidavit, and did not find a reasonable probability of a

different outcome from calling Fleming. Accordingly, we

will not disturb the Indiana Supreme Court’s reasonable

application of Strickland.

The second error claimed by Ben-Yisrayl concerns the

facts as determined by the Indiana Supreme Court. In

analyzing the prejudice prong of Strickland, the Court

“decline[d] to attach much significance to the [two previ-

ous] acquittals,” but engaged in Ben-Yisrayl’s argument

regarding these acquittals anyway. It held that the “evi-

Nos. 07-2151 and 07-2281 11

dence presented in the first two trials regarding another

possible shooter was much more compelling than that

presented in Flemings’s affidavit.” Ben-Yisrayl v. State,

729 N.E.2d at 108. In one case, the Court noted, an eyewit-

ness sitting in the victim’s car when she was shot testified

that she observed a “light complected male wearing a

trench coat” standing next to the car. In another, two

witnesses testified that they saw a “white male . . . with a

trench coat” walking toward a car “with a cylindrical

object parallel to his leg” shortly before they heard a

shotgun blast. In both of these cases the witnesses saw a

“light-skinned man” directly before the shootings. The

Court concluded: “By contrast, Fleming’s observations

do not place anyone at the crime scene at the time of the

shooting. Rather, Fleming places someone across the

street a half hour before the shootings.” The court also

noted that Fleming did not actually see a gun, even

though he “thought the man had a gun in his lap.”

Ben-Yisrayl argues that this decision was “based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,”

in violation of § 2254(d)(2). He musters several incon-

sistencies between the record and the Indiana Supreme

Court’s factual determinations, but only one comes close to

having merit: the timing of the identification and the

shooting. Fleming’s affidavit indicates he saw the man

across the street of the tailor shop at 4:10 or 4:20;

according to Ben-Yisrayl, a brother of the two Balovskis

testified that he saw a man with a shotgun pointed at his

brother at either 4:15 or 4:30. Therefore, Ben-Yisrayl argues,

the shooting was at most twenty minutes after, and

12 Nos. 07-2151 and 07-2281

potentially contemporaneous with, Fleming’s identifica-

tion, and not “a half hour before the shootings.” This

factual issue is relevant only because the Indiana Su-

preme Court, in analyzing the prejudice element of Strick-

land, disregarded Fleming’s observations in his affidavit

because they did “not place anyone at the crime scene at the

time of the shooting.” The State chose to ignore this issue

in its brief.

A petitioner’s challenge to a state court decision based

on a factual determination under § 2254(d)(2) will not

succeed unless the state court committed an “unreasonable

error,” and § 2254(e)(1) provides the mechanism for

proving unreasonableness. See Ward v. Sternes, 334 F.3d

696, 703-04 (7th Cir. 2003). If the petitioner shows that

the state court determined an underlying factual issue

against the clear and convincing weight of the evidence,

the petitioner has “gone a long way towards proving that

it committed unreasonable error.” Ward, 334 F.3d at 704. “A

state court decision that rests upon a determination of

fact that lies against the clear weight of the evidence is,

by definition, a decision ‘so inadequately supported by

the record’ as to be arbitrary and therefore objectively

unreasonable.” Id. (quoting Hall v. Washington, 106 F.3d

742, 749 (7th Cir. 1997)). This is a daunting standard, but

not insurmountable. See Miller-El v. Cockrell, 537 U.S. 322,

123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (“Deference does

not by definition preclude relief. A federal court can

disagree with a state court’s credibility determination

and, when guided by AEDPA, conclude that the decision

was unreasonable.”).

Nos. 07-2151 and 07-2281 13

Upon careful review of the record, we find that the

Indiana Supreme Court determined a factual issue

against the clear and convincing weight of the evidence

when it found that the identification was a “half hour

before the shootings.” The testimony of Slavko Balovski,

the brother who saw the shooter in the tailor shop, contra-

dicts the Supreme Court of Indiana’s version of the facts.

On direct examination, Balovski was asked about the

timing of the shooting. He said that prior to the shooting,

he and his two brothers were eating lunch at the tailor

shop.

Q: [Shortly] after 4:00 o’clock, had you and your

brothers finished your food, sir?

A: Just around after 4:00, 4:00 or 4:30 or something.

Afterwards, he went back to work at the shop; sometime

later, he saw a man with a shotgun pointed at his brother.

He then ran out of the tailor shop to get help at a muffler

shop down the street, and on the way, he heard a gun-

shot. Three to four minutes had passed between the time

the shooter entered the store and the time he reached the

muffler shop. He then was asked:

Q: Was this at approximately 4:30 in the afternoon?

A: Yes, it was after 4:30.

On cross-examination, he was asked about the lighting

conditions when he left the tailor shop and fled to the

muffler shop: “It wasn’t dark, it was like sunset, it wasn’t

very dark, it was imagine at that time, 4:15” [sic].

According to this record, Balovski places the time of the

shooting at some point between “after 4:00” and “after

14 Nos. 07-2151 and 07-2281

4:30.” Separate testimony by police officers indicated that

they had been dispatched to the scene at 4:45. Comparing

this evidence with Fleming’s affidavit—stating that he

identified the individual in the car at 4:10 to 4:20—the

length of time between the identification and the

shooting is at most thirty-five minutes (extending the

period of Bolovski’s “after 4:30” until the dispatch of the

police) and at least, potentially, within the same range of

time. Therefore, the Indiana Supreme Court’s finding that

this time period was a “half hour” was a factual error

against the clear and convincing weight of the evidence.

Because the “half hour” finding falls directly within

the Indiana Supreme Court’s analysis of the prejudice

element of the Strickland, the finding reflects an “unreason-

able determination of the facts in light of the evidence

presented.” 28 U.S.C. § 2254(d)(2); see Wiggins, 539 U.S. at

528, 123 S.Ct. 2527 (recognizing that a clear factual error

“reflects ‘an unreasonable determination of the facts’ ”

under § 2254(d)). The fact that the Indiana Supreme

Court’s decision only partially rested on this fact does not

alter the reasonableness of the determination of the

Strickland claim. As in Wiggins, even a partial reliance on

an erroneous fact finding can support a finding of unrea-

sonableness. Id. (finding that, in the particular circum-

stances before the Court, the state court’s “partial reliance

on an erroneous factual finding further highlight[ed]

the unreasonableness of the state court’s decision”).

However, our analysis does not end here. Despite a

conclusion that the Indiana Supreme Court’s finding was

unreasonable, Ben-Yisrayl still must still establish that he

Nos. 07-2151 and 07-2281 15

is entitled to habeas relief. See Aleman v. Sternes, 320 F.3d

687, 690 (7th Cir. 2003); see also Harrison v. McBride, 428 F.3d

652, 665 (7th Cir. 2005) (citing Aleman, 320 F.3d at 690)

(“[E]ven when the AEDPA standard does not ap-

ply—either because the state court’s opinion was unreason-

able or because the state judiciary did not address the

constitutional claim—[a] prisoner still must establish an

entitlement to the relief he seeks.”). In this situation,

§ 2254(a) sets the standard: the court issues “a writ of

habeas corpus on behalf of a person in custody pursuant

to the judgment of a State court only on the ground that

he is in custody in violation of the Constitution or laws

or treaties of the United States.” See Aleman, 320 F.3d

at 690.

We turn, then, to whether Ben-Yisrayl’s counsel’s failure

to call Fleming constituted deficient performance. We

assume, arguendo, that Ben-Yisrayl can meet the first prong

of the Strickland analysis. Our primary focus rests upon

whether counsel’s failure to call Fleming prejudiced his

defense. Strickland, 466 U.S. at 692, 104 S.Ct. 2052. In

doing so, we weigh the evidence in aggravation against

the totality of available mitigating evidence. Wiggins,

539 U.S. at 534, 123 S.Ct. 2527.

Ben-Yisrayl argues that Fleming, had he testified, would

have placed a man matching the composite sketch of the

shotgun killer in the vicinity of the crime within a brief

window of time before the shootings. He further argues

that he then would have introduced additional evidence

that the witness who helped the police prepare the com-

posite sketch later identified the killer as Ronald Harris.

16 Nos. 07-2151 and 07-2281

Harris, an associate of McGee’s and acquaintance of Ben-

Yisrayl’s, was later convicted of shooting one of the

victims in the original set of seven “shotgun killings.” See

Harris v. State, 619 N.E.2d 577 (Ind. 1993).

Against this, we weigh the substantial evidence intro-

duced against Ben-Yisrayl at trial, including: (1) his

confession; (2) the ballistic evidence of the shotgun found

in his home; and (3) McGee’s testimony. Ben-Yisrayl

certainly casts doubt on McGee’s story at trial, but the

jury ultimately accepted the testimony. As the State points

out, the arguably mitigating evidence regarding the

composite sketch and the Ronald Harris information

might not be as helpful as Ben-Yisrayl claims. Introducing

the composite might have opened the door to intro-

ducing the facts of the other shotgun killings, a potentially

adverse outcome regardless of whether Ben-Yisrayl

was ultimately convicted of the other murders. In the

Ronald Harris conviction, the witness who identified

Harris also saw and heard another individual acting as

an accomplice. Had any of this information been pro-

duced at trial, the State could have argued that Ben-

Yisrayl and Harris acted as accomplices in a string of

killings in Northwest Indiana. Any mitigating effect of the

Harris evidence, therefore, must be tempered by the

potential for the evidence to strengthen the case against

Ben-Yisrayl.

Putting aside these issues, we return to the core of

Fleming’s testimony: that he saw a light-skinned character

in the vicinity of the tailor shop at some point prior to

Nos. 07-2151 and 07-2281 17

the shooting.3 Weighing this against the overwhelming

evidence against Ben-Yisrayl, we cannot say with any

confidence that the introduction of this sparse testimony

would have altered the outcome of Ben-Yisrayl’s trial.

Accordingly, even though the Indiana Supreme Court

made an unreasonable determination of the facts in light

of the evidence presented, Ben-Yisrayl has failed to estab-

lish that he is entitled to habeas relief.

B. Admission of Ben-Yisrayl’s Confession

Ben-Yisrayl next contends that his confession—or his

“false” confession—was the result of an unreasonable post-

arrest restraint that violated his Fourth Amendment

rights. Under Indiana law, a person who is arrested

without a warrant must be brought before a magistrate

for a determination of probable cause within twenty-four

hours. Ben-Yisrayl was detained for thirty-six hours before

he was taken before a magistrate, and in the last twelve

hours, he confessed to the shotgun murders. The Indiana

Supreme Court found that, despite the delay in bringing

Ben-Yisrayl before a magistrate, the appropriate remedy

would not be to exclude his confession. The Court, after

examining Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854,

43 L.Ed.2d 54 (1975) and County of Riverside v. McLaughlin,

500 U.S. 44, 56-57, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991),

3

The police report relating to Fleming’s encounter with the man

in the car also indicated that Fleming “felt some negative

energy” when leaving the tailor shop. We decline to assign

much weight to this “energy.”

18 Nos. 07-2151 and 07-2281

found that the thirty-six hour delay was not a per se

violation of the Supreme Court’s mandate to “promptly”

bring individuals arrested without a warrant before a

magistrate. Peterson v. State, 674 N.E.2d 528, 537-39 (Ind.

1996), cert. denied, 522 U.S. 1078, 118 S.Ct. 858, 139 L.Ed.2d

757 (1998).

Our review of this issue will be short. As long as a habeas

petitioner enjoyed an “opportunity for full and fair litiga-

tion of a Fourth Amendment claim” in state court, federal

habeas review of the claim is barred. Stone v. Powell, 428

U.S. 465, 481-82, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976);

Miranda v. Leibach, 394 F.3d 984, 990 (7th Cir. 2005); Hayes

v. Battaglia, 403 F.3d 935, 939 (7th Cir. 2005). As a general

principle, absent a subversion of the hearing process, we

will not examine whether the state courts made the right

decision. Watson v. Hulick, 481 F.3d 537, 542 (7th Cir. 2007)

(citing Cabrera v. Hinsley, 324 F.3d 527, 531 (7th Cir. 2003)).

Ben-Yisrayl claims that he was deprived of a full and

fair opportunity to litigate his Fourth Amendment

claim because the Indiana Supreme Court failed to apply

the relevant constitutional case law to the facts. He argues

that the Indiana Supreme Court failed to address Brown v.

Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), a

case which, he now points out, he presented to every

Indiana court he faced in the course of his direct appeal.

But therein lies the rub: Ben-Yisrayl had the full oppor-

tunity to litigate his claim and argue the relevant

Supreme Court precedent, including Brown, at every

stage of his proceedings in Indiana. There is no indica-

tion that the Indiana courts precluded that right. Regard-

Nos. 07-2151 and 07-2281 19

less of our own judgment of whether Brown has any

impact on Ben-Yisrayl’s case, he received a full and fair

hearing on this issue, and we will not second-guess the

Indiana Supreme Court’s reasoning. See Watson, 481 F.3d

at 542; Hayes, 403 F.3d at 939 (“[Petitioner] simply asks

us to disagree with the state courts’ decision, a path that

Stone closes.”); Cabrera, 324 F.3d at 531-32.

C. Failure to Disclose Exculpatory Evidence

Ben-Yisrayl finally argues that the state failed to disclose

material exculpatory evidence in violation of Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Specifically, he claims that the prosecution did not dis-

close (1) that State witness Ivory “Tito” Maxwell was a

paid informant for the FBI; and (2) that the government’s

investigation of and search for the “shotgun killer” contin-

ued after Ben-Yisrayl’s arrest and purported confession.

When the government deliberately or inadvertently

withholds evidence that is material and favorable to the

defense, it violates the defendant’s right to a fair trial,

which is guaranteed by due process. Brady, 373 U.S. at 87-

88, 83 S.Ct. 1194; United States v. Wilson, 481 F.3d 475, 480

(7th Cir. 2007). The government has a duty to disclose

evidence, regardless of whether the criminal defendant

requests it, and that duty applies equally to impeachment

and exculpatory evidence. United States v. Bagley, 473

U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); United

States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342

(1976); Wilson, 481 F.3d at 480.

20 Nos. 07-2151 and 07-2281

Ben-Yisrayl couches his claim in terms of habeas relief,

but for all intents and purposes, he has brought a new

Brady claim in the federal court, and requests plenary

review from us. Post-AEDPA habeas petitions do not

proceed in this fashion. Ben-Yisrayl fails to point us to

any specific Indiana decision that was contrary to, or

involved an unreasonable application of, Supreme Court

precedent, or resulted in a decision that was based on an

unreasonable determination of the facts. See Badelle, 452

F.3d at 656-60. He notes that he raised the Brady issue in

the Indiana courts during his post-conviction petition

and successor post-conviction petition.4 But he does not

suggest any constitutional violations in the ultimate

resolution of those issues by the Indiana courts. Id. at 656

(citing Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004)

(noting that “[t]he habeas applicant has the burden of

4

This claim is somewhat misleading, as far as we can glean

from the voluminous record. At his original post-conviction

proceeding, he argued before the Indiana trial court that the

State improperly suppressed the Fleming affidavit, not the

Maxwell information or the Bivens affidavit. In fact, in

affirming the denial of the post-conviction relief, the Indiana

Supreme Court specifically noted that “Ben-Yisrayl does not

dispute [the finding that the Fleming affidavit was properly

disclosed], and, therefore, does not put forth a claim under

Brady v. Maryland.” Ben-Yisrayl v. State, 729 N.E.2d 102, 108 n.5

(Ind. 2000). He did raise the Maxwell and Bivens issues

in his petition seeking successive post-conviction relief,

though the Maxwell information was in the form of a

Strickland claim, not a Brady claim.

Nos. 07-2151 and 07-2281 21

proof to show that the application of federal law was

unreasonable”).

Ben-Yisrayl hints at the fact that the two pieces of

evidence are “new evidence” that were not presented at

the trial court, perhaps invoking the principle that

Brady claims not raised at the state level are not procedur-

ally defaulted when the petitioner was unable to present

the claim to the state courts “because of the state’s mis-

conduct.” See Crivens v. Roth, 172 F.3d 991, 995-96 (7th Cir.

1999) (citing Reed v. Ross, 468 U.S. 1, 14, 104 S.Ct. 2901, 82

L.Ed.2d 1 (1984) (“We will not penalize [petitioner] for

presenting an issue to us that he was unable to present to

the state courts because of the state’s misconduct.”). But

that principle does not apply here; Ben-Yisrayl affirma-

tively states that he had this information while his case

was proceeding at the state level, and that he presented

this evidence to the Indiana courts.

Because Ben-Yisrayl has not met his burden of showing

any error of constitutional magnitude by the Indiana

courts, habeas relief must be denied, and we decline his

invitation to address the merits of the Brady claim.

D. Relief Granted for Consecutive 60-Year Terms

Finally, the State argues on cross-appeal that the dis-

trict court erred in granting habeas relief to Ben-Yisrayl

with respect to the consecutive sixty-year terms imposed

after he received relief in the state court under Saylor v.

State, 808 N.E.2d 646 (Ind. 2004). The State submits that

because the Indiana Court of Appeals relied on Indiana

22 Nos. 07-2151 and 07-2281

law to affirm the consecutive sixty-year terms, and be-

cause Ben-Yisrayl cannot point to any federal basis for

habeas review, the district court erroneously granted relief.

The Indiana trial judge based Ben-Yisrayl’s consecutive

sixty-year terms in part on aggravating circumstances,

including (1) the two prior Porter County convictions

(which were later invalidated); and (2) the fact that Ben-

Yisrayl was convicted of murdering multiple victims in

the Balovski trial. Using its powers under the Indiana

Constitution to review and revise sentences, Ind. Const.

Art. 7 § 6, the Indiana Court of Appeals found that even

if the Porter County murder convictions were invalid, Ben-

Yisrayl’s enhanced sentences were proper. Under Indiana

law, according to the court, when a trial court improperly

applies one aggravating circumstances but other valid

aggravating circumstances exist, a sentence enhance-

ment may still be upheld. See Hackett v. State, 716 N.E.2d

1273, 1278 (Ind. 1999); Edwards v. State, 842 N.E.2d 849, 855

(Ind. Ct. App. 2006); Hatchett v. State, 740 N.E.2d 920, 929

(Ind. Ct. App. 2000). The Court of Appeals noted: “The

Porter County convictions were only two of three ag-

gravating circumstances found by the trial court, and

the third aggravator was clearly set forth in the court’s

sentencing statement. The court properly found that the

fact that Ben-Yisrayl murdered not one but two people

in the case, served to aggravate the crime.” Ben-Yisrayl v.

State, Cause No. 45A05-0501-CR-22, slip op. at 8-9 (Ind. Ct.

App. 2005). Citing Indiana Supreme Court precedent and

the Indiana Code, the Indiana Court of Appeals observed

that multiple killings could qualify as an aggravating

circumstance, and that a single aggravating circumstance

Nos. 07-2151 and 07-2281 23

could both enhance a sentence and impose consecutive

sentences. Id. (citing Scuggs v. State, 737 N.E.2d 385, 387

(Ind. 2000); Tobar v. State, 740 N.E.2d 109, 113 (Ind. 2003);

Ind. Code § 35-38-1-7.1(a)(2) and (d)). Following these

principles, the court found Ben-Yisrayl’s sentence appro-

priate for the double murder of the Balovskis.

The district court, citing United States v. Tucker, 404 U.S.

443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), found that the

Porter County convictions still may have played an

improper role in Ben-Yisrayl’s sentence. The court ob-

served:

There may be some limited argument under a species

of due process with regard to the possible use of the

Porter County convictions in this case. Such is a very

narrow question that is largely of state law, but some

bits and pieces of it may be arguable under the Consti-

tution of the United States as reflected in Tucker and its

progeny.

Accordingly, the district court granted the writ and

ordered the Indiana trial court to conduct a new sen-

tencing.

This was error. Again, AEDPA limits habeas relief to

specific circumstances not found here. The Indiana Court

of Appeals decision was not “contrary to” clearly estab-

lished federal law; that is, the court did not apply a rule

that contradicts with governing law or decide a case

differently that the Supreme Court has done on a set of

materially indistinguishable facts. Nor was the decision

an unreasonable application of federal law, as the court

24 Nos. 07-2151 and 07-2281

did not refuse to extend a rule to a context where it

should have applied.

Ben-Yisrayl argues that the decision of the Indiana

Court of Appeals was contrary to and an unreasonable

application of Tucker and Townsend v. Burke, 334 U.S. 736,

68 S.Ct. 1252, 92 L.Ed. 1690 (1948). He argues that even

if the Indiana Court of Appeals conducted the proper

analysis under Indiana law, it failed to conduct an

analysis of whether the imposition of the sentence vio-

lated due process as delineated by the Supreme Court. In

Townsend, the Supreme Court found a due process viola-

tion where the sentencing court, in the absence of counsel,

relied on materially false information about a criminal

defendant’s criminal history in making its sentencing

decision. Townsend, 334 U.S. at 741, 68 S.Ct. 1252. Relying

on Townsend, the Supreme Court in Tucker overturned a

sentence where the sentencing judge had considered

two prior convictions that had subsequently been invali-

dated for violation of the defendant’s right to counsel.

Tucker, 404 U.S. at 447, 92 S.Ct. 589. These two cases stand

for the general proposition that a criminal defendant has

the due process right to be sentenced on the basis of

accurate information. See Tucker, 404 U.S. at 447, 92

S.Ct. 589; United States v. Jones, 454 F.3d 642, 652 (7th Cir.

2006).

Tucker comes closest to addressing the issue before the

Indiana Court of Appeals, and was referenced, obliquely,

by the district court. But Tucker examined a different

issue than what is before us today. Where Tucker asked

whether habeas relief should extend to a sentence based

on “misinformation of constitutional magnitude” in the

Nos. 07-2151 and 07-2281 25

form of two previous invalid convictions, the question

in this case is whether the relief should extend to a sen-

tence based on an entirely proper aggravating circum-

stance. The Indiana Court of Appeals determined that

the consecutive sentences could be based on the single

aggravating circumstance of the double murders,

exclusive of the two other invalid aggravators. It had the

authority to make this determination under the Indiana

Supreme Court’s decision in Hackett. 716 N.E.2d at 1278

(“When a trial court improperly applies an aggravator

but other valid aggravating circumstances exist, a sen-

tence enhancement may still be upheld.”). No Supreme

Court case or ruling of our court has found that the rule

in Hackett violates Tucker or Townsend in these circum-

stances. It follows, therefore, that the Indiana Court of

Appeals did not act contrary to clearly established fed-

eral law, nor did they unreasonably apply this law, in

upholding his sentence.

We are bound by a state court’s interpretations of state

law. See, e.g., Wainwright v. Goode, 464 U.S. 78, 84, 104

S.Ct. 378, 78 L.Ed.2d 187 (1983). The Indiana Court of

Appeals properly followed the dictates of the Indiana

Code and the Indiana Supreme Court in upholding Ben-

Yisrayl’s sentence; and in making this determination, the

court did not run afoul of Supreme Court precedent.

Habeas relief should not have been granted.

III. CONCLUSION

Accordingly, we A FFIRM the district court’s decision to

deny habeas relief, and R EVERSE the district court’s

26 Nos. 07-2151 and 07-2281

limited grant of habeas relief with respect to Ben-

Yisrayl’s consecutive sentences.

8-28-08