The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1831
SPENCER RILEY,
Petitioner-Appellant,
v.
VICTOR CALLOWAY,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13-cv-02162 — Andrea R. Wood, Judge.
____________________
ARGUED NOVEMBER 15, 2017 — DECIDED FEBRUARY 20, 2018
____________________
Before WOOD, Chief Judge, MANION, and KANNE, Circuit
Judges.
MANION, Circuit Judge. Spencer Riley was acquitted of
first-degree murder by an Illinois jury, but he later was con-
victed at a bench trial of being an “armed habitual criminal.”
The state had charged these crimes together but, with defense
counsel’s acquiescence, obtained a severance to proceed sep-
arately with the armed habitual criminal count. The state ap-
pellate court affirmed Riley’s conviction on that count, and
2 No. 17-1831
the Supreme Court of Illinois declined further review. Riley
then filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254 claiming that, in light of his acquittal of murder,
the state was collaterally estopped from prosecuting him as
an armed habitual criminal because of Ashe v. Swenson, 397
U.S. 436 (1970). Riley had pursued, but lost, that same argu-
ment on direct appeal, and the district court denied relief on
the ground that the appellate court did not unreasonably ap-
ply clearly established federal law in rejecting his Ashe claim.
We agree with the district court’s assessment and affirm its
judgment.
I. Background
The facts of the crimes are recounted in People v. Riley,
2012 IL App (1st) 101607-U. On October 30, 2007, Cedric
Hudson was shot and killed while he was drinking with
friends. Six bullets struck Hudson that night; three of those
caused extensive damage. The investigation eventually
focused on Riley, and the state charged him with six counts of
first-degree murder, 720 ILCS 5/9-1(a)(1)–(2), and one count
of being an armed habitual criminal, 720 ILCS 5/24-1.7(a). The
judge severed the armed habitual criminal count at the state’s
request—but with defense counsel’s agreement—and
proceeded with the murder trial. The state’s case centered on
four witnesses: Demetrice Allen, Frederick Brown, Kenneth
Head, and Detective Dan Gorman.
Demetrice Allen testified that on October 30, 2007, he was
in a vacant lot with his friends, Brown and Hudson. Allen said
Riley also was present, but he could not remember if
Sheeba Mackmore was with the group. Allen testified that he
did not see Riley leave the vacant lot and go to his house
across the street, he did not see Riley carrying a handgun, he
No. 17-1831 3
did not see Mackmore and Hudson arguing, and he did not
witness the shooting of Hudson. Allen insisted he could not
recall the substance of his pretrial conversation with an assis-
tant State’s Attorney and lead detective Dan Gorman. But the
prosecutor introduced Gorman’s recollection of Allen’s state-
ments from that pretrial meeting, contradicting his trial testi-
mony. What Allen had said previously is that Riley arrived
by car, left the group and walked to his house, and moments
later returned wearing a white hoodie with his hands in the
front pocket. Allen also had said during his meeting with De-
tective Gorman and the assistant State’s Attorney that Riley
told Hudson not to speak to the “boss”—Mackmore—“like
that,” pulled a pistol from his hoodie, and shot Hudson. The
state also introduced Allen’s grand jury testimony, which
tracks what he told Gorman and the assistant State’s Attor-
ney. However, the color of the hoodie was not mentioned in
the grand jury testimony.
Frederick Brown testified at the murder trial that he saw
Hudson and Mackmore conversing and at the same time saw
Riley arrive on foot from his house across the street. Riley
wore a hoodie—Brown described it as black, not white—and
walked with his hands in the hoodie’s pockets. Once he ar-
rived he walked up to Hudson and told him, “Don’t talk to
my boss like that,” pulled a gun from the hoodie, and shot
Hudson once. Brown said he fled immediately but heard six
more shots as he ran.
Kenneth Head likewise testified that Riley had shot Hud-
son. Head said that Riley and Hudson had arrived in separate
cars around the same time. Hudson walked toward Riley
while holding up his hands. Riley then pulled a gun from the
back of his pants and shot Hudson once. Head heard five
4 No. 17-1831
more shots as he escaped from the lot. The police had inter-
viewed Head in January and March 2008. In January he had
denied seeing the shooting, which, at trial, he said was a lie
prompted by fear. Then in March, Head had said that Riley
approached the group on foot wearing a hoodie and shot
Hudson after pulling a gun from the hoodie’s front pocket
while Hudson was speaking with Mackmore. The prosecutor
impeached Head with his March statement, while defense
counsel got him to concede that he had been fighting that
night with Hudson, the victim.
The coroner testified that Hudson had been shot multiple
times in his life, including six times that night. He was able to
recover three intact bullets, two bullet fragments (one with
two pieces of a lead core and an aluminum jacket; the other
with a copper jacket), and three of four bullets lodged in Hud-
son’s body from a previous shooting. Riley stipulated to the
admission of a ballistics report that is very confusing but
fairly can be read as allowing for the possibility that more
than one gun was used on October 30. In fact, on cross-exam-
ination Detective Gorman conceded the “possibility” that
more than one gun was involved.
Detective Gorman testified that while he was transporting
Riley from the police station to a court hearing on March 11,
2008, Riley asked who would be testifying against him. When
Gorman replied that he could not talk about the case, Riley
speculated that Mackmore had identified him as the shooter
and said “he wasn’t worried about the case against him and
that dead men can’t come to court and testify.” Riley also
bragged to Gorman that the prosecution’s witnesses would
become his witnesses at trial and would say the police forced
them to identify him as the shooter. Gorman conceded that no
No. 17-1831 5
gun had been recovered from Riley, that he never went to Ri-
ley’s house to look for one, and that Riley had never admitted
committing the murder.
In closing argument defense counsel asserted that “two
separate calibers of ammunition” were found, thus suggest-
ing the use of “more than one gun.” According to the state
appellate court, one defense theory argued by Riley’s law-
yer—Riley had not testified—is that someone other than Riley
discharged the bullets that killed Hudson. In finding Riley not
guilty of first-degree murder, the jury answered a special in-
terrogatory finding that the prosecution had not proven “that
during the commission of the offense of first degree murder
the defendant personally discharged a firearm that proxi-
mately caused death to another person.”
Allen, Brown, and Detective Gorman again testified at the
armed habitual criminal trial before the same judge, and their
testimony was nearly identical to what each said at the mur-
der trial. But this time, instead of saying he did not recall what
happened, Allen said that he did not see whether Riley had
shot Hudson. The state again introduced what had been Al-
len’s contradictory grand jury testimony and the statements
he made when interviewed by Gorman and the assistant
State’s Attorney. And this time Brown said that, before run-
ning away, he had seen Riley shoot Hudson two or three
times, not just once.
At this bench trial the parties stipulated that Riley had
two, qualifying prior convictions, leaving the judge to decide
only whether Riley possessed a gun, 720 ILCS 5/24-1.7(a).
During closing argument the prosecutor contended that
Brown had testified credibly and that Allen’s interview state-
6 No. 17-1831
ments and grand jury testimony corroborated Brown’s testi-
mony. Defense counsel pointed out the inconsistencies in the
stories of the state’s witnesses and noted that none of them
could describe the gun allegedly possessed by Riley, despite
identifying him as the shooter.
The judge found Riley guilty. The inability to recover the
gun was insignificant, the judge reasoned, because in many
cases a gun is not recovered. The judge noted that two wit-
nesses had placed Riley at the crime scene (located across the
street from his home) and testified he shot Hudson. And, the
judge added, Riley’s statements to Detective Gorman before
his murder trial were incriminating. The judge sentenced Ri-
ley to 15 years’ imprisonment.
On direct appeal, Riley raised the issue of collateral estop-
pel for the first time, relying on Ashe v. Swenson. In affirming
Riley’s conviction, the Illinois appellate court reviewed that
claim for plain error. The court ruled that the state was not
collaterally estopped from prosecuting Riley as an armed ha-
bitual criminal because whether he had possessed a gun was
not decided by the jury at his murder trial. At issue in the
murder trial was whether Riley had killed Hudson using a
gun, not simply whether he possessed a gun. During closing
argument in the murder case, one theory the defense had pre-
sented was that more than one person had a gun and could
have shot Hudson, creating doubt whether Riley had fired the
fatal shots even if he was one of the shooters. Another defense
theory was that the state’s eyewitnesses—all convicted fel-
ons—should not be believed at all. The court surmised that “a
rational jury could have based its acquittal of defendant’s
murder charges on an issue and a conclusion apart from
whether defendant possessed a gun.” “To determine whether
No. 17-1831 7
defendant possessed a weapon to sustain a conviction for be-
ing an armed habitual criminal, the trier of fact would not
need to determine whether defendant discharged a weapon
or if he killed Hudson,” the court concluded.
Riley then filed his § 2254 petition. In denying relief, the
district court reasoned that only two facts from the murder
trial were preclusive: Hudson was murdered, and Riley did
not kill him. The court explained that the jury could have ac-
quitted Riley for any number of reasons. And simply because
the jury acquitted him does not mean that Riley did not pos-
sess a gun. Still, in granting a certificate of appealability, the
court said it appreciated “that the evidence at Riley’s armed
habitual criminal trial was virtually the same as the evidence
presented at his earlier murder trial” and that the “arguably
conflicting results” implicate “language in Ashe prohibiting a
prosecutor from using a first trial as a dry run for a second
trial.”
II. Discussion
On appeal Riley presses his claim that the doctrine of col-
lateral estoppel should have prevented the state from pro-
ceeding to trial on the severed count charging him as an
armed habitual criminal once the jury acquitted him of mur-
der. To succeed under § 2254, Riley must establish that the ap-
pellate court’s decision “was contrary to, or involved an un-
reasonable application of, clearly established Federal law, as
determined by the Supreme Court” or “was based on an un-
reasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d);
see Lee v. Avila, 871 F.3d 565, 570 (7th Cir. 2017). And an appli-
cation of clearly established federal law is “unreasonable” for
purposes of § 2254(d) only if it is “objectively unreasonable,
8 No. 17-1831
not merely wrong; even clear error will not suffice.” White v.
Woodall, 134 S. Ct. 1697, 1702 (2014) (quotation marks omit-
ted); see Hicks v. Hepp, 871 F.3d 513, 524 (7th Cir. 2017). Riley
does not overcome this steep hurdle.
Riley’s claim is governed by Ashe v. Swenson, 397 U.S. 436
(1970). Collateral estoppel means that “when an issue of ulti-
mate fact has once been determined by a valid and final judg-
ment, that issue cannot again be litigated between the same
parties in any future lawsuit.” Ashe, 397 U.S. at 443;
see also Bravo-Fernandez v. United States, 137 S. Ct. 352, 358–59
(2016) (discussing Ashe).
In this court Riley repeats contentions he made to the state
appellate court and the district court. He principally insists
that at his murder trial the jury “conclusively resolved the is-
sue of the murderer’s identity” in his favor and yet “the State
relitigated that precise issue at a subsequent bench trial.” Ri-
ley points out that at closing argument in the murder trial the
prosecutor asserted that only one gun was used to kill Hud-
son. And, Riley continues, the jury announced via special in-
terrogatory its determination that Riley did not discharge a
firearm that proximately caused death. Riley asserts that the
prosecutor’s closing argument and the special interrogatory,
taken together, establish that he did not possess the gun used
by the murderer during the shooting. This same question was
relitigated at his bench trial, says Riley, since the state pre-
sented “‘virtually the same’ identification evidence” that his
“murder jury had rejected in acquitting him of murder and
personal discharge.”
In pressing this theory, though, Riley tries to distance him-
self from his own position at the murder trial, that someone
else possessed a second gun that might have been the source
No. 17-1831 9
of the bullets which killed Hudson. According to Riley, the
district court ignored evidence from the murder trial estab-
lishing that only one gun was fired at Hudson and wrongly
insinuated without an evidentiary foundation that more than
one gun was used to shoot the bullets that struck Hudson. Ri-
ley concedes that, yes, his trial lawyer did assert in closing ar-
gument that multiple guns were present in the vacant lot, but
he says the district court should not have inferred from coun-
sel’s closing that he was asking the jury to infer that more than
one gun was used in the shooting.
Riley’s point contradicts what occurred; whether or not his
lawyer intended to suggest that Riley shot at Hudson, he was
asking the jury to infer that someone else had a second gun that
was used to kill Hudson—meaning that, even if Riley did pos-
sess a gun as the eyewitnesses said, his gun did not fire the
bullets that killed Hudson.
Putting aside § 2254(d) for the moment, we agree with the
district court that the factual issues decided at the murder trial
are not identical to any pertinent fact at the armed habitual
criminal trial. What the jury necessarily decided is that “the al-
legation was not proven that during the commission of the
offense of first degree murder the defendant personally dis-
charged a firearm that proximately caused death to another
person.” That’s all. The jury’s verdict and answer to the spe-
cial interrogatory do not establish that the jury necessarily
found that Riley did not possess a gun at all that night (or
even that he did not fire a gun). The verdict establishes only
that Riley didn’t fire the bullets that killed Hudson. No other
finding from the murder case is preclusive.
Riley muddles things with redundant arguments in his
brief, but the case is straightforward. Given the high standard
10 No. 17-1831
of proof needed to convict someone of murder—beyond a
reasonable doubt—it is not surprising that the jury acquitted
Riley of murder with the poor evidence presented. There was
no physical evidence tying Riley to the crime. And the eye-
witnesses were less than ideal given their inconsistent, some-
times shifting stories and their shared status as convicted fel-
ons. In contrast, all that was required to convict Riley of being
an armed habitual criminal was proof that he possessed a
gun, along with the two prior convictions (convictions that
were stipulated to)—a much easier case for the state to win.
See 720 ILCS 5/24-1.7(a).
All that said, however, the question for purposes of
§ 2254(d) is not whether the state appellate court got the cor-
rect answer, but whether it unreasonably applied federal law.
Lee, 871 F.3d at 570. Section 2254(d) imposes a hurdle that is
intentionally hard to meet. Harrington v. Richter, 562 U.S. 86,
102 (2011). This statutory provision “stops short of imposing
a complete bar on federal-court relitigation of claims already
rejected in state proceedings,” but it leaves open the authority
of a federal court to issue a writ of habeas corpus only “in
cases where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts” with Su-
preme Court precedent. Id.
In rejecting the Ashe claim brought by Riley, the state ap-
pellate court cited only state cases, but that does not matter.
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (explaining
that § 2254(d) will bar federal relief even if state court does
not cite, or even know about, controlling Supreme Court prec-
edents “so long as neither the reasoning nor the result of the
state-court decision contradicts them”). The appellate court
concluded that, at the first trial, “the relevant issue was
No. 17-1831 11
whether defendant killed Hudson by use of a weapon and not
whether he merely possessed a weapon, which was the rele-
vant issue during the AHC trial.” The court noted that Riley
had presented a theory suggesting the use of multiple guns
and painted the state’s witnesses as unreliable, meaning “a
rational jury could have based its acquittal of defendant’s
murder charges on an issue and a conclusion apart from
whether defendant possessed a gun.” This assessment is not
an unreasonable application of Ashe, thus we affirm the dis-
trict court’s judgment.