Keith Bland v. Marcus Hardy

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1566

K EITH B LAND, JR.,

Petitioner-Appellant,

v.

M ARCUS H ARDY, Warden,

Stateville Correctional Center,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08 C 2602—John W. Darrah, Judge.

A RGUED O CTOBER 25, 2011—D ECIDED F EBRUARY 13, 2012

Before E ASTERBROOK, Chief Judge, H AMILTON, Circuit

Judge, and M YERSCOUGH, District Judge.Œ

E ASTERBROOK, Chief Judge. A jury concluded that

Keith Bland set out to steal some guns from his father’s

house and did not care who got hurt. He and his con-

federates found his stepmother at home. She was exe-

Œ

Of the Central District of Illinois, sitting by designation.

2 No. 10-1566

cuted by a bullet to the back of her head. A state court

sentenced Bland to 71 years’ imprisonment for murder

and armed robbery. His conviction was affirmed on

appeal, and the state judiciary rejected a collateral at-

tack. He then tried federal court under 28 U.S.C. §2254 and

lost again. 2010 U.S. Dist. L EXIS 13624 (N.D. Ill. Feb. 12,

2010). We issued a certificate of appealability, see 28

U.S.C. §2253(c), and appointed counsel to represent

Bland on appeal.

Counsel’s lead argument is that the prosecutor vio-

lated the due process clause of the fourteenth amend-

ment by taking advantage of an error during Bland’s

testimony. Bland said that he had been arrested on felon-

in-possession charges in January 2000, and that the

police had confiscated his .38 caliber handgun. The rob-

bery and murder took place in September 2000, and

during closing argument the prosecutor argued that

the confiscation of a gun eight months earlier gave

Bland a motive to steal another (since he could not buy

a gun lawfully). But Bland’s memory was faulty; he

had been arrested, and the gun confiscated, in Janu-

ary 2001, not January 2000—and the prosecutor knew

it. This sets up Bland’s argument that the prosecution

violated the constitutional rule against knowingly

using false testimony. See Napue v. Illinois, 360 U.S. 264

(1959); Giglio v. United States, 405 U.S. 150 (1972).

The state judiciary assumed that the prosecutor vio-

lated a constitutional norm but found that Bland had not

suffered any injury. Using the right date, a prosecutor

could have argued that Bland’s possession of a .38 caliber

No. 10-1566 3

handgun in January 2001 was evidence of guilt, because

that type of gun delivered the fatal shot. We need not

decide whether this is right, because Bland’s substantive

argument does not get past the screen in 28 U.S.C.

§2254(d), a part of the Antiterrorism and Effective

Death Penalty Act. Section 2254(d) provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated on

the merits in State court proceedings unless

the adjudication of the claim—

(1) resulted in a decision that was contrary to,

or involved an unreasonable application

of, clearly established Federal law, as deter-

mined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on

an unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

Bland’s claim was adjudicated on the merits in state

court, whose decision was neither contrary to, nor an

unreasonable application of, Napue and similar decisions.

Napue and Giglio hold that a prosecutor may not

offer testimony that the prosecutor knows to be false.

They do not hold that a prosecutor is forbidden to

exploit errors in testimony adduced by the defense.

Prosecutors often know that defense testimony is wrong.

4 No. 10-1566

For example, a defendant may testify to a false alibi.

A prosecutor who knows that the defendant’s testi-

mony is bogus is entitled to take advantage of the op-

portunity to undermine the defense, perhaps by

arguing that the testimony conflicts with that of other

witnesses and that someone must be lying, or perhaps

(parallel to the situation here) by arguing that, if the alibi

is truthful, it shows that the defendant had a motive,

or was committing some other crime that reflects poorly

on his honesty. The prosecutor not only argued that the

supposed arrest in January 2000 was evidence of motive

but also tried to exploit an alibi that the prosecutor

thought fishy: Bland testified that he was selling

cocaine when the murder occurred. The prosecutor,

who did not believe that alibi, nonetheless used it to

contend that Bland had depicted himself as a person

who would violate the law, including the laws against

murder and perjury, whenever he thought he could

get away with it. Bland does not contend that this use

of his testimony violated Napue; it is hard to see why

the use of his testimony about the date a gun had been

confiscated from him would do so.

Bland’s able counsel in this court concedes that no

decision of the Supreme Court clearly establishes that a

prosecutor cannot make hay from a defendant’s false

testimony. Instead counsel appeals to “fundamental

fairness.” And there is something unsettling about a

prosecutor using a defendant’s testimony to contradict

a known fact. But “fundamental fairness” is too high

a level of generality to satisfy §2254(d)(1). Until the Su-

preme Court has made a right concrete, it has not been

No. 10-1566 5

“clearly established.” See, e.g., Wright v. Van Patten, 552

U.S. 120, 125–26 (2008); Carey v. Musladin, 549 U.S. 70,

77 (2006). More: the principal role of the due process

clause is to ensure a trial at which the truth can emerge

through an adversarial presentation. Nothing pre-

vented Bland’s defense team from correcting his testi-

mony. The date of his arrest was well documented;

his lawyer had the papers just as the prosecutor did.

Bland’s counsel could have corrected the error when it

was made, or immediately after he left the stand, or

even in closing argument (the prosecutor spoke first, as

is normal). There is nothing “fundamentally unfair”

about leaving to the adversarial process the exchange

of arguments about inferences to be drawn from the

date of an arrest and a weapon’s confiscation, when

both sides have equal access to the facts.

Bland relies on the due process clause for a second

argument. The Supreme Court held in Doyle v. Ohio, 426

U.S. 610 (1976), that because Miranda warnings assure

suspects that they need not answer an interrogator’s

questions, it violates the due process clause for a pros-

ecutor to ask a jury to infer guilt from silence. That infer-

ence would contradict the warnings and double-cross

the suspect. Bland contends that the prosecutor vio-

lated this rule by asking an officer who had inter-

rogated Bland what happened when the officer asked

a particular question. The officer replied that Bland put

his fingers in his ears, pretended that he had not heard

the question, and shouted “blah, blah, blah, blah” in

an effort to drown out that question and future ques-

tions. Bland now contends that a shouted “blah” is the

6 No. 10-1566

same as “silence” because, like genuine silence, it does

not convey information.

We may suppose, without deciding, that making a

rude noise or reciting “Jabberwocky” in response to

a question is the functional equivalent of silence.

Miranda v. Arizona, 384 U.S. 436 (1966), is based on the self-

incrimination clause of the fifth amendment (applied to

the states through the due process clause of the four-

teenth). The four famous warnings are designed to

ensure that a suspect knows that he need not provide

incriminating evidence, unless the government sup-

plies immunity (which makes the evidence no longer

incriminating). Neither a rude noise nor a string of non-

sense words is incriminating.

This assumption does not benefit Bland, however,

because he did not make loud noises from the outset.

He met with police several times, waived his right to

remain silent, and made statements. He said, among

other things, that he had been playing basketball with

Christopher Scott the afternoon of the murder. That

was his first proffered alibi—and at trial, when he gave

a different alibi (that he had been selling cocaine all

day), he necessarily conceded that he had been lying.

The police cottoned onto the lie much earlier, and they

asked Bland how other facts they had discovered (in-

cluding Scott’s confession that he and Bland had cooked

up this alibi) could be reconciled with the story about

basketball. That is when Bland put his fingers in his

ears and refused to say more. We therefore do not have

a situation in which a suspect was silent throughout;

No. 10-1566 7

we have instead a situation in which the suspect said

some things, and a later decision to clam up may illumi-

nate the significance of what was said.

Anderson v. Charles, 447 U.S. 404 (1980), holds that

Doyle does not prevent a prosecutor from using a deci-

sion to stop talking as the basis for an inference that

what the suspect had said earlier was false—or perhaps

that the suspect was implying its truth by refusing to

add corroborating detail. See also Fletcher v. Weir, 455

U.S. 603 (1982); Jenkins v. Anderson, 447 U.S. 231 (1980).

Prosecutors always can put in evidence of, and make

arguments about, what suspects actually say. Just as

flight to avoid apprehension can reflect consciousness

of guilt, so a sudden silence can reflect a suspect’s con-

sciousness that he has dug himself into a hole and

cannot see an exit. That’s a fair subject for comment,

Charles holds, though an express invocation of the right

to remain silent might not be. Doyle and Charles show

that, when a suspect in custody starts talking and then

stops, the constitutional line can be a fine one. Given

the deferential standard we apply on collateral review,

see 28 U.S.C. §2254(d), it is enough to conclude here

that the state courts’ decision was not contrary to, or

an unreasonable application of, the Supreme Court’s

clearly established law.

Finally, Bland contends that the court violated the

Constitution by requiring him to wear a stun belt

during trial, without first finding that this was neces-

sary for security in the courthouse. See Deck v. Missouri,

544 U.S. 622, 626–29 (2005). We concluded in Stephenson

8 No. 10-1566

v. Wilson, 619 F.3d 664 (7th Cir. 2010), that the need for

a particularized showing of dangerousness was clearly

established before 1997; the rule is thus no less

applicable to Bland’s trial than it was to Stephenson’s.

The prosecutor did not try to show that Bland is too

dangerous to be left unrestrained in a courtroom—but

then Bland did not ask for such proof. Perhaps this

was because his lawyer thought that the prosecutor

could have supplied it, so there was no reason to

belabor the issue; but perhaps his lawyer missed an

opportunity to do some good for the defense by

removing the risk that the jury would believe that

Bland had already been adjudicated to be a menace to

anyone near him. Bland’s current lawyer takes the

latter view, blames trial counsel for not demanding a

hearing, and chastises appellate counsel in state court

for not attacking the performance of trial counsel.

To preserve a question for federal collateral attack, a

person must present the contention to each level of the

state judiciary. O’Sullivan v. Boerckel, 526 U.S. 838 (1999).

Illinois contends that Bland scuttled his claim by

omitting one important element from his direct appeal

(he did not tell appellate counsel about the stun belt

until three months after the briefing had been com-

pleted; no wonder the subject went unmentioned) and

another from his presentation to the Supreme Court of

Illinois when filing a petition for leave to appeal. We

need not decide whether Bland has committed a proce-

dural default, because his argument fails on the merits.

28 U.S.C. §2254(b)(2).

No. 10-1566 9

Bland devotes much of his brief to arguing that Illinois

failed to hold the sort of hearing required by Deck and

its predecessors. Yet that argument was forfeited in

state court, and it can be resurrected only as part of the

“prejudice” component of a contention that Bland

received ineffective assistance of counsel. The state judi-

ciary found no prejudice because, it believed, the

stun belt was not visible to the jury. (It was under

Bland’s shirt.) Prejudice is one of two components of the

ineffective-assistance inquiry under Strickland v. Wash-

ington, 466 U.S. 668 (1984). The other is objectively

deficient performance—performance so bad that the

lawyer was not the sort of “counsel” of which the sixth

amendment speaks. Bland has not demonstrated that

he received assistance that bad.

Bland assumes that all he need do to establish

deficient performance is to assert that, if counsel had

made a simple objection, the stun belt would have van-

ished. After all, Bland observes, the record does not

establish that he is too dangerous to be allowed to sit in

a courtroom unrestrained. But it does not follow that

a word from counsel would have eliminated the stun

belt; instead a word from counsel might have precip-

itated a hearing, the outcome of which may have been

to proceed with the stun belt, or perhaps to make it

less visible. A hearing also might have explored

whether the belt was visible to people sitting in the

jury box, and whether laypersons would infer that a

bulky device under a shirt was a stun belt as opposed

to a back or rib cage support of the type that many

athletes wear. Even if Bland could have established that

10 No. 10-1566

a hearing would have required the state to get rid of all

physical restraints (relying instead on guards in the

courtroom) or to use a less bulky, and hence less

visible, restraint, it would not follow that counsel had

furnished ineffective assistance. A stun belt may be less

prejudicial to a defendant than a courtroom full of

armed guards. What’s more, the question under

Strickland is not whether the lawyer made a mistake,

even a serious one; it is whether the lawyer’s overall

performance was professionally competent. See, e.g.,

Strickland, 466 U.S. at 686–96; Williams v. Lemmon, 557

F.3d 534 (7th Cir. 2009). A single error may suffice “if

that error is sufficiently egregious and prejudicial.”

Murray v. Carrier, 477 U.S. 478, 496 (1986). “Lest this

exception swallow the rule, however, we must take

the Justices at their word and search for an ‘egregious’

error—an omission of something obviously better (in

light of what was known at the time) than the line of

defense that counsel pursued.” Williams, 557 F.3d at 538.

When a federal court must decide whether a state

court contradicted the Supreme Court, or resolved an

issue unreasonably, see §2254(d)(2), the petitioner is not

entitled to an evidentiary hearing. Review proceeds

on the evidentiary record compiled in state court. See

Cullen v. Pinholster, 131 S. Ct. 1388 (2011). That principle

tied the hands of the lawyer we appointed to assist

Bland, for counsel had to make do with an essentially

empty record. What do we know from the record

about whether the state could have shown Bland to

be dangerous enough to warrant use of a visible re-

straint? Nothing. What do we know from the record about

No. 10-1566 11

whether people in the jury box (the actual jurors,

or surrogates participating in a test) would have

inferred that the bulge was a stun belt as opposed to a

back brace? Nothing. (Bland filed his own affidavit as-

serting that the jurors must have inferred from the

bulk under his shirt that he had a stun belt, but this

issue should be examined from the jurors’ perspective,

not from the defendant’s.) What do we know from the

record about what alternative security steps the state

would have used had the judge ruled out a stun belt?

Nothing. These omissions are no fault of the state

judiciary; they reflect the absence of any effort by Bland

to provide the information to the state judges. This

makes it very hard for a federal court to say that counsel

missed an easy and important strategic victory by with-

holding an objection to the stun belt.

By contrast, the record does show that counsel put up

a vigorous defense. Omitting a motion directed to the

stun belt is not the sort of inexplicable omission that

renders even an apparently sturdy defense so deficient

that the representation as a whole fell below an “objec-

tive standard of reasonableness.” Strickland, 466 U.S. at

688. That the defense was generally capable implies,

instead, that counsel did not raise the stun-belt question

because he did not expect the issue to confer much if

any advantage on the defense. Strickland tells us that

evaluation of counsel’s work as a whole is “highly defer-

ential” (id. at 689) and that strategic decisions are

“virtually unchallengeable” (id. at 690). The (essentially)

empty record does not show that counsel made a terrible

blunder that greatly diminished his client’s chances.

12 No. 10-1566

This is an easier case for the state than Stephenson, and

as the state prevailed in that case it prevails here too.

Bland has not established that he received constitu-

tionally inadequate assistance, so it is unnecessary to

consider the subject of prejudice.

A FFIRMED

2-13-12