Dishon McNary v. Marcus Hardy

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-2759

D ISHON M C N ARY,

Petitioner-Appellant,

v.

M ICHAEL L EMKE, W ARDEN,1

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10 C 5185—Charles P. Kocoras, Judge.

A RGUED S EPTEMBER 10, 2012—D ECIDED F EBRUARY 26, 2013

Before E ASTERBROOK, Chief Judge, and C UDAHY and

K ANNE, Circuit Judges.

K ANNE, Circuit Judge. Dishon McNary is currently

serving two life sentences, without the possibility of

parole, in an Illinois state prison. After failing in state

1

The warden at the time McNary filed his petition was

Marcus Hardy. Hardy has since been replaced by Michael

Lemke, and we have changed our caption accordingly.

2 No. 11-2759

court on both direct appeal and post-conviction review,

McNary petitioned the district court for a writ of habeas

corpus. McNary sought relief on the grounds that he

received ineffective assistance of trial and appellate

counsels in his state court proceedings. The district

court denied the writ, and we now affirm.

I. B ACKGROUND

The facts presented here come from the witnesses’

testimony at trial and the Illinois Appellate Court’s sum-

mation of that testimony in its three opinions on this case.

At approximately 8:00 a.m. on March 20, 1998, 25-year-

old Dishon McNary departed from his mother’s house

for his carpentry job. A few hours later, at 1:00 p.m., he

left work for the day and proceeded straight to the

liquor store. There, he bought a half-pint of Hennessy

cognac and a six-pack of beer. McNary returned to his

mother’s house, where he drank most of the cognac

and one beer. He then decided to take his 1986 Chevy

Caprice to a car wash, where he sat for about an hour

and finished the rest of the cognac. From that point, the

timing of events is fuzzy. McNary drove to a lounge.

He had a few drinks before returning to the liquor

store and purchasing a full pint of cognac. McNary

then headed to a friend’s house, where he and three

others played cards for a few hours. In that time, the

four consumed most of the pint of cognac, along

with a twelve-pack of beer. When the games ended,

McNary drove to his sister’s house. Finally, at well past

1:00 a.m., McNary decided it was time to head home. He

No. 11-2759 3

was “feeling high” but thought he could drive. (R. 16-2

at 471.)

When McNary pulled away from his sister’s home,

he noticed a car that appeared to be following him. As

he continued on his way, the car pulled alongside his

own vehicle. When he saw one of the car’s occupants

bend down, McNary feared he would be carjacked and

stepped on the gas. He accelerated to between fifty

and sixty miles per hour on a road with a posted limit of

thirty-five. Speeding down the road, McNary hit some-

thing. But he kept going. As he glanced back, the menacing

car still pursued. So, when McNary came to a red light,

he ran it. The car behind him did the same. McNary

accelerated to an estimated eighty or ninety miles per

hour. He ran another red light and deliberately by-

passed his home. He did not want to lead his pursuers

there. McNary ran one more red light and remembered

nothing further until waking up in the hospital the

next morning, sometime after 10:00 a.m.

***

Sadly, McNary claimed the lives of three individuals

that evening. When he first hit “something” on his way

home, he collided with Eric Marshall, a pedestrian at-

tempting to cross the street. The impact sent Marshall

flying into the air, and McNary’s car struck him a

second time as he descended to the ground. Marshall

later died of injuries sustained in the collision. He was

the father of two children, who, at the time, were ages

seven and one.

Police officers observed the hit-and-run and began

pursuing McNary, who continued to drive. After running

4 No. 11-2759

his third red light, McNary remembered nothing fur-

ther. In that time, he ran through a fourth red light

and struck a Dodge Neon. Both occupants of that vehicle,

Benjamin Burrage and Shauntel Moffett, died. Several

police officers, including José Martinez and Richard

Hardesty, caught up to McNary at the accident scene.

The officers pulled McNary from the burning wreckage

of his vehicle. He was unconscious but smelled strongly

of alcohol. Martinez would later testify that he “placed

[McNary] in custody” at that time. (R. 16-2 at 350.) Within

a few minutes, an ambulance came and transported

McNary to Cook County Hospital. Officer Martinez

was ordered to the site of the hit-and-run with Marshall,

while Officer Hardesty stayed at the scene of the

auto accident to investigate.

At approximately 3:50 a.m., Officer Hardesty went to

Cook County Hospital to interview McNary. McNary

claims not to remember this conversation, (id. at 478),

but Hardesty described him as “[l]ucid,” (id. at 410).

Hardesty introduced himself as an officer investigating

the crash and asked McNary if he had been drinking.

McNary responded that he had had two beers and two

shots. Hardesty then asked how the accident happened.

McNary said, “I seen the man standing in the middle of

the street[;] I beeped my horn[;] he did not move[;] I

kept on going.” (Id. at 411.) At that point, Hardesty in-

formed McNary that he was being placed under arrest.

Hardesty read McNary the “Warnings to Motorist,” which

Illinois police officers read to individuals arrested for

driving under the influence. The warnings discuss the

penalties associated with refusing to have blood alcohol

No. 11-2759 5

content (BAC) tested and with registering a result above

the legal limit. Upon hearing the warnings, McNary

agreed to have his BAC tested. Blood samples collected

between 4:30 and 4:45 a.m.—almost three hours after

the accident—came back with a BAC of .22, nearly three

times the legal limit in Illinois. See 625 ILCS 5/11-501.

At approximately 8:00 a.m. the same morning, Investi-

gator Theodore Ptak also interviewed McNary in the

hospital. Again, McNary does not remember this con-

versation. Prior to speaking, Investigator Ptak advised

McNary of his Miranda rights, which McNary indicated

he understood. McNary subsequently told Ptak that he

had consumed two shots of cognac, three beers, another

half-pint of cognac, and several more beers over the

course of the evening. McNary also told Investigator

Ptak about the car that had caused him to flee. McNary

admitted that while trying to outrun the pursuing

vehicle, he had hit a pedestrian, but “he did not stop

because he knew that he was drunk and that there

were squad cars behind him, chasing after him for

striking the pedestrians [sic].” (R. 16-2 at 523.)

After further investigation, the State of Illinois charged

McNary with three counts of reckless homicide and

three counts of murder. As the case proceeded to trial,

McNary claimed that his statements to Hardesty and

Ptak were not knowingly or voluntarily made and thus

moved to suppress them. Notably, defense counsel con-

ceded that McNary was not in custody until sometime

after talking with Officer Hardesty. (Id. at 85.) After

holding a suppression hearing, the state trial court

6 No. 11-2759

found McNary’s arguments unpersuasive and denied

the motion.

Two months later, on the morning jury selection was

scheduled to start, defense counsel informed the court

that McNary’s sister, Carla, had important additional

information. Counsel did not renew the motion to

suppress but merely wanted to get Carla’s testimony on

the record to preserve the matter for appeal. (Id. at 147-48.)

Counsel explained that he had “interviewed the

members of the family” but “did not find . . . out [about

Carla’s information until] after the motion [to suppress]

had been ruled upon.” (Id. at 148.) During a break in

trial, and outside the presence of the jury, the trial court

allowed Carla to testify on the record. She said that at

“1:00 something” a.m., a friend came to her house and

let her know about McNary’s car accident. (Id. at 600.)

Carla then said that she went immediately to Cook

County Hospital. The trip took her between fifteen and

twenty minutes, so she arrived at “almost 2:00” a.m. (Id. at

599.) When Carla entered the trauma center, she saw

McNary handcuffed to his hospital bed with a police

officer sitting in a chair next to him. (Id. at 598-99.) She

also claimed that a nurse told her McNary was

under arrest. (Id. at 598.) Carla stayed until McNary

was wheeled out of the room at “2:00 something.” (Id. at

602-03.)

At trial, Officers Martinez and Hardesty, as well as

Investigator Ptak, testified to the facts described earlier.

McNary also testified to what he remembered. At the

close of evidence, the defense requested a jury instruc-

No. 11-2759 7

tion on voluntary intoxication. The trial court heard

arguments on both sides but ultimately rejected the

instruction. The court reasoned that voluntary intoxica-

tion, under Illinois law, could only be a defense to a

crime if the “condition existed to such a degree as to

render [the] defendant wholly incapable of forming the

requisite intent.” (Id. at 556-57.) The court decided that

“[t]here [was] evidence . . . which clearly establishe[d]

that the defendant was not intoxicated to such an ex-

tent”; thus, the instruction was not warranted. (Id. at 558.)

On May 27, 1999, the jury found McNary guilty of

two counts of first-degree murder for the deaths of

Benjamin Burrage and Shauntel Moffett, the occupants

of the Dodge Neon. The jury also found McNary guilty

of one count of aggravated reckless homicide for the

death of Eric Marshall, the pedestrian. At his sentencing

on June 29, McNary received two life sentences in

prison, without the possibility of parole, for the first-

degree murder convictions, and a ten-year sentence

for the aggravated reckless homicide conviction. He

would serve all sentences concurrently.

McNary timely appealed his convictions to the Illinois

Appellate Court. People v. McNary, No. 1-99-2370 (Ill. App.

Ct. 2001) (unpublished order). There, McNary made

several arguments, including ineffective assistance of

trial counsel. Two of counsel’s alleged failures are

relevant here: not proving that McNary was in custody

while speaking to Officer Hardesty, and eliciting prej-

udicial testimony from McNary. (R. 8-4 at 3-4.)

Under the first argument—the custody issue—McNary

pointed to three omissions at the suppression hearing

8 No. 11-2759

that allegedly resulted in ineffective assistance: (1) not

questioning McNary himself about whether he felt free

to leave during his conversation with Hardesty; (2) not

calling Carla until after the court had ruled on the

motion; and (3) not questioning Officer Martinez about

putting McNary in custody at the scene of the auto acci-

dent. In upholding McNary’s convictions, the Illinois

Appellate Court rejected each of those arguments. The

court found that it was reasonable for trial counsel not

to have asked McNary about his conversation with

Hardesty, since McNary himself said he could not re-

member it. (Id. at 56.) Second, the court found that

trial counsel acted reasonably in not calling Carla. Specif-

ically, the court said that, “in light of the overwhelming

evidence presented by the State,” Carla’s testimony

would have had “minimal impact on the outcome of

the suppression hearing.” (Id. at 57.) Finally, the court

found that counsel acted reasonably in not calling Officer

Martinez. The court stated that Martinez’s subjective

view about putting McNary in custody was irrelevant,

because custody is determined based upon the state

of mind of the defendant, and McNary was unconscious.

(Id. at 57-58.)

Under the second relevant issue addressed on direct

appeal—eliciting prejudicial testim ony— appellate

counsel focused on trial counsel’s attempt to obtain a

voluntary intoxication instruction. Appellate counsel

contended that McNary obviously did not qualify for

the defense. (Id. at 13.) For that reason, it was sup-

posedly prejudicial for trial counsel to elicit testimony

about McNary’s “marathon-drinking binge.” (Id.) Appel-

No. 11-2759 9

late counsel went so far as to say, “[i]t is difficult to

imagine that defense counsel would have questioned

[McNary about excessive drinking] had he been

even faintly familiar with the law regarding voluntary

intoxication.” (Id.) The appellate court, however, did not

find this claim availing. The court said that it would

not disturb trial counsel’s strategic choices. The court

explained that the evidence could have warranted

giving the instruction but also justified denying it, espe-

cially in light of McNary’s own statement at trial that,

“I was feeling high, but . . . I think I can drive.” (Id. at 61.)

Because the state appellate court did not find any of

the other claims persuasive, it affirmed McNary’s con-

victions.

On May 1, 2002, the Illinois Supreme Court denied

McNary’s petition for leave to appeal. People v. McNary,

199 Ill. 2d 571 (2002). Subsequently, on May 23, 2002,

McNary sought post-conviction relief pursuant to

Illinois state law. In that proceeding, McNary raised

several issues, although only one proves relevant here:

ineffective assistance of counsel on direct appeal

for failing to challenge the denied voluntary intox-

ication instruction. On August 9, 2002, the state trial

court dismissed this petition as time-barred and

meritless. When McNary appealed that denial, the

Illinois Appellate Court reversed. People v. McNary,

No. 1-02-2897 (Ill. App. Ct. 2004) (unpublished order).

The court found McNary’s petition timely and having

“raised the gist of a meritorious claim” for ineffective

assistance. (R. 8-5 at 27.) Therefore, the court remanded

for reconsideration.

10 No. 11-2759

On remand, the trial court again granted the State’s

motion to dismiss the ineffective assistance claim. The

court found counsel effective because McNary did not

qualify for a voluntary intoxication instruction; thus,

counsel’s actions were reasonable and did not result in

prejudice. McNary appealed again. This time, the Illinois

Appellate Court affirmed. People v. McNary, No. 1-07-0777

(Ill. App. Ct. 2009) (unpublished order). The court re-

viewed the evidence and found that McNary’s own

testimony explained why he was not entitled to the

instruction. This testimony included McNary’s state-

ments that he knew he hit someone but kept going

because he was being chased by the police. Therefore,

appellate counsel acted reasonably by not raising a

meritless issue on appeal. On May 26, 2010, the Illinois

Supreme Court denied McNary’s petition for leave to

appeal the denied post-conviction relief. People v.

McNary, 236 Ill. 2d 566 (2010).

On March 11, 2011, McNary filed an amended petition

for a writ of habeas corpus in the United States District

Court for the Northern District of Illinois. In his petition,

McNary asserted four claims: (1) ineffective assistance

of trial counsel; (2) improper admission of McNary’s

involuntary statements to Investigator Ptak; (3) ineffec-

tive assistance of appellate counsel; and (4) violation of

the Eighth Amendment. In an opinion issued on June 9,

2011, the district court denied relief on all claims.

Then, on August 1, the same court granted McNary

a certificate of appealability on the two ineffective assis-

tance of counsel claims. McNary timely filed his appeal

on those two issues.

No. 11-2759 11

II. A NALYSIS

A. Habeas Corpus Standards of Review

The complex standards of review governing petitions

for habeas corpus warrant some explanation. When a

district court denies a petition, we review the denial

de novo. Rann v. Atchison, 689 F.3d 832, 835 (7th Cir. 2012).

As we do so, however, the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA) significantly con-

fines our inquiry. 110 Stat. 1214. Today, we need only

address the AEDPA provision that proves dispositive

in this case: 28 U.S.C. § 2254(d). This provision applies

when a prisoner who is “in custody pursuant to the

judgment of a State court” petitions for habeas corpus

based upon an issue “adjudicated on the merits in State

court proceedings.” Id. Such is the case here. McNary

remains in custody, pursuant to a decision of an Illinois

court. He contends that this custody resulted from a

violation of the Sixth Amendment of the United States

Constitution: ineffective assistance of trial and appellate

counsels. The Illinois Appellate Court addressed both

these issues on the merits. Therefore, § 2254(d) applies.

McNary alleges only an error of law, not one of fact; so,

under § 2254(d), we can grant the writ only if the state

court proceedings “resulted in a decision that was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States.” Id. Thus, although

we technically hear this appeal from the district court,

our inquiry focuses entirely on what occurred in the

state court. In so doing, we look at “the decision of the

12 No. 11-2759

last state court to rule on the merits of the petitioner’s

claim.” McCarthy v. Pollard, 656 F.3d 478, 483 (7th Cir.

2011). For McNary’s ineffective assistance of trial counsel

claim, that decision was the 2001 opinion of the Illinois

Appellate Court, People v. McNary, No. 1-99-2370 (Ill.

App. Ct. 2001) (unpublished order). For the ineffective

assistance of appellate counsel claim, the relevant deci-

sion is the 2009 opinion of that court, People v. McNary,

No. 1-07-0777 (Ill. App. Ct. 2009) (unpublished order).

As we begin considering McNary’s claims in light of

§ 2254(d), our inquiry narrows further. The statutory

phrase “contrary to, or involved an unreasonable ap-

plication of, clearly established Federal law” actually

includes two separate standards. 28 U.S.C. § 2254(d).

The state court’s decision is “contrary to” federal law if

it employs the wrong legal standard established by

the Supreme Court. Bell v. Cone, 535 U.S. 685, 694 (2002);

Coleman v. Hardy, 690 F.3d 811, 814 (7th Cir. 2012). Al-

ternatively, the state court’s decision unreasonably

applies federal law if the “court identifies the correct

governing legal rule . . . but unreasonably applies it to

the facts of the particular state prisoner’s case.” Williams

v. Taylor, 529 U.S. 362, 407 (2000); accord Coleman, 690

F.3d at 814.

Here, the state court applied the uncontested legal

standard for ineffective assistance of counsel: Strickland

v. Washington, 466 U.S. 668 (1984), and its progeny. As

a result, the decisions below were not “contrary to”

clearly established law. 28 U.S.C. § 2254(d); see also

Cone, 535 U.S. at 694. The sole remaining question is

No. 11-2759 13

therefore whether the state court decisions “involved an

unreasonable application of . . . clearly established

Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). Our answer may

rest only on Supreme Court precedents “as of the time

the state court render[ed] its decision.” Cullen v.

Pinholster, 131 S. Ct. 1388, 1399 (2011) (internal quotation

marks omitted). Furthermore, we must consider only

the factual record presented to the state court. Id. at

1400. Finally, our review is “highly deferential.” Id. at

1398. Mere disagreement with the state court does not

allow us to grant relief. Harrington v. Richter, 131 S. Ct.

770, 785-86 (2011). We can reverse the holding below

only if “there was no reasonable basis” for the state

court’s decisions. Pinholster, 131 S. Ct. at 1402.

B. Ineffective Assistance of Counsel Standard

Because our inquiry will therefore hinge on whether

the Illinois Appellate Court reasonably applied the stan-

dard for ineffective assistance of counsel, we must intro-

duce that standard, as well. The Supreme Court has

developed a two-pronged test for identifying violations

of the right to effective assistance of counsel. Strickland,

466 U.S. at 687. The overarching inquiry is “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.” Id. at 686.

In making that determination, the reviewing court

first considers whether “ ‘counsel’s representation fell

14 No. 11-2759

below an objective standard of reasonableness.’ ” Richter,

131 S. Ct. at 787 (quoting Strickland, 466 U.S. at 688). Under

this prong of the analysis, the court strongly presumes

counsel’s effectiveness. Strickland, 466 U.S. at 689. Second,

the court considers whether counsel’s blunders resulted

in prejudice—“ ‘a reasonable probability that, but for

counsel’s unprofessional errors, the result of the pro-

ceeding would have been different.’ ” Richter, 131 S. Ct.

at 787 (quoting Strickland, 466 U.S. at 694). In other words,

counsel’s errors must “undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. Notably, a court

need not address the first prong of the Strickland test if

it is easier to resolve the case on the prejudice inquiry.

Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000) (citing

Strickland, 466 U.S. at 697). Given this high standard, even

“egregious” failures of counsel do not always warrant

relief. United States v. Draves, 103 F.3d 1328, 1335 (7th

Cir. 1997).

C. Application of the Appropriate Standards to McNary’s

Claims

On habeas review, our inquiry is now whether the

state court unreasonably applied Strickland to McNary’s

case. Remember, however, Strickland mandates strong

deference to the strategic decisions of counsel. 466 U.S.

at 689. Likewise, AEDPA mandates giving the state court

“the benefit of the doubt” in how it applied Strickland.

Pinholster, 131 S. Ct. at 1398. Thus, these standards

combine to form the “doubly deferential” approach we

No. 11-2759 15

now apply to McNary’s claims. Knowles v. Mirzayance,

556 U.S. 111, 123 (2009).

1. Ineffective assistance of trial counsel

McNary first argues that he received ineffective assis-

tance of trial counsel. He bases this claim on four omis-

sions of counsel at the suppression hearing: (1) not

calling Carla McNary to testify; (2) not questioning

Officer Martinez about placing McNary in custody at

the scene of the auto accident; (3) not asking McNary

himself about his conversation with Officer Hardesty;

and (4) not raising the fact that Hardesty waited until

after McNary made incriminating statements to read

him any sort of warning.

The first three of these claims relate to whether

McNary was in custody prior to his conversation with

Officer Hardesty. The answer to that question would

have greatly impacted the admissibility of McNary’s

statements. If the interrogation occurred in a custodial

environment, Officer Hardesty needed to give McNary

Miranda warnings prior to the start of questioning. See

Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). But Officer

Hardesty did not give McNary these warnings. Thus,

had McNary already been in custody, there would have

been a strong basis to suppress his statements. Yet, at

the suppression hearing, trial counsel conceded that

McNary was not in custody and thus did not argue

that Miranda warnings were necessary. McNary now

contends that that decision was ineffective and cites

the instances mentioned above to demonstrate how

16 No. 11-2759

counsel could have established the interrogation’s custo-

dial nature.

a. Failure to question Carla McNary

According to McNary, his sister, Carla, had important

information about whether he was in custody and thus

claims she should have been called during the suppres-

sion hearing. To begin, we note that “custody,” when

used in reference to Miranda, “is a term of art that

specifies circumstances that are thought generally to

present a serious danger of coercion.” Howes v. Fields, 132

S. Ct. 1181, 1189 (2012). Determining whether someone

is in custody depends upon “the objective circumstances

of the interrogation.” Stansbury v. California, 511 U.S. 318,

323 (1994) (per curiam). Specifically, custody requires

that a “reasonable person [would] have felt he or she

was not at liberty to terminate the interrogation and

leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995), super-

seded on other grounds by statute, 28 U.S.C. § 2254(d).

Here, when Carla testified during a break in trial, she

said that she saw McNary handcuffed to his hospital

bed with a police officer sitting next to him. (R. 16-2 at 598-

99.) She also testified that a nurse told her McNary was

under arrest. (Id. at 598.) On direct appeal, the Illinois

Appellate Court found that, “in light of the over-

whelming evidence presented by the State,” Carla’s

testimony, even if elicited earlier, “would have had

minimal impact on the outcome of the suppression hear-

ing.” (R. 8-4 at 57.) We must now determine whether

No. 11-2759 17

that decision amounted to an unreasonable application

of Strickland.

First, we note that the record is murky, at best, as to

why McNary’s counsel failed to called Carla earlier.

The extent of the record on that issue is as follows. Trial

counsel explained, “I interviewed the members of

the family and I did not find [Carla’s information] out

[until] after the motion had been ruled upon.” (R. 16-2

at 148.) The court responded, “So it’s not newly dis-

covered evidence[;] it was available. You just weren’t

aware of it.” (Id.) Counsel clarified, “It’s newly discov-

ered in that when I questioned members of the family

no one seemed to have that information. I did newly

discover it [a few days] after the motion.” (Id.) The

court accepted this explanation and allowed counsel

to put Carla’s testimony on the record.

Thus, under the first prong of Strickland, we have only

a sparse record to use in determining whether counsel’s

representation “fell below an objective standard of rea-

sonableness.” Strickland, 466 U.S. at 688. True, “counsel

has a duty to make reasonable investigations.” Id. at 691.

Yet, counsel can also “make a reasonable decision

that makes particular investigations unnecessary.” Id.

Either way, “a particular decision not to investigate

must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference

to counsel’s judgments.” Id.

Here, the record leaves unclear to what extent

counsel investigated the stories of McNary’s family

members prior to the suppression hearing. He inter-

18 No. 11-2759

viewed some members of the family, but we do not

know (and neither did the state appellate court) whether

he interviewed Carla specifically. Given the “heavy

measure of deference to counsel’s judgments,” id., how-

ever, it was appropriate for the Illinois Appellate Court

to find counsel’s investigations sufficient. Counsel,

after all, conducted some interviews, which immedi-

ately distinguishes this case from Kimmelman v.

Morrison, cited by McNary to support his argument. 477

U.S. 365 (1986). In that case, trial counsel failed to

conduct any discovery at all; this “total failure,” in par-

ticular, persuaded the Court to find counsel ineffective.

Id. at 386. In contrast, McNary’s counsel conducted in-

vestigations; then, once he found out about Carla’s infor-

mation, he made sure to get her testimony on the record

to preserve the matter for appeal. We find those actions

reasonable.

More telling, however, is the prejudice prong of the

Strickland standard. Reasonable jurists could disagree

about the effectiveness of counsel’s investigations

(which still satisfies our review of the state court’s deci-

sion), but the answer to the prejudice inquiry is even

clearer. Had Carla testified, it seems highly unlikely

that she would have affected the outcome of the sup-

pression hearing, no less the trial. To make a difference

at the hearing, Carla’s testimony would have needed

to overwhelm the State’s countervailing evidence; other-

wise, it would not have convinced the judge to sup-

press McNary’s statements.

Carla’s testimony could not have done so, due to its

inherent credibility problems. Carla claims that at

No. 11-2759 19

“1:00 something” a.m., someone came to her house

and told her about McNary’s car accident. (R. 16-2 at 600.)

She then claims to have traveled fifteen to twenty

minutes to the hospital, where she arrived at “almost

2:00 o’clock.” (Id. at 599.) Given the other evidence, the

timing of this testimony makes little sense. McNary’s

auto accident occurred at 1:50 a.m. It is thus improbable

that someone else could have known about the accident

at “1:00 something” and that Carla could have been at

the hospital at “almost 2:00 o’clock.” By the time

officers arrived at the scene, called for help, and extracted

McNary from his vehicle, the ambulance probably

did not arrive at the hospital until at least 2:00 a.m.

Furthermore, timing was critical for Carla’s testimony

to have any import. It was uncontested that Officer

Hardesty placed McNary in custody after their discus-

sion at approximately 3:50 a.m. Thus, Carla’s testimony

would have only made a difference if it suggested

that McNary was in custody prior to that time. Yet,

given the timing inconsistencies between Carla’s infor-

mation and the other evidence, combined with Carla’s

clear interest in helping her brother, it was reasonable

for the Illinois Appellate Court to conclude, as it did,

that the judge would not have credited Carla’s testi-

mony, even if it had been offered earlier.

Further still, Carla’s statements could not have affected

the outcome of the trial. To establish prejudice, McNary

would need to show not only “a reasonable probability

that he would have prevailed on the motion to sup-

press” but also “a reasonable probability that . . . he

20 No. 11-2759

would have been acquitted.” Bynum v. Lemmon, 560 F.3d

678, 685 (7th Cir. 2009). Here, even if Carla’s testimony

convinced the judge to suppress McNary’s statements,

the outcome of the trial would not have changed.

Despite McNary’s contentions otherwise, the State pre-

sented enough other evidence for the jury to convict him

of first-degree murder. McNary told Investigator Ptak

that he hit a pedestrian, but “he did not stop because

he knew that he was drunk and that there were

squad cars behind him, chasing after him for striking

the pedestrians [sic].” (R. 16-2 at 523.) McNary knew he

was drunk and that his behavior had caused serious

injury to another; yet, he persisted in driving. In other

words, he knew that his actions created “a strong prob-

ability of death or great bodily harm,” which satisfies

the mental state of first-degree murder under Illinois

law. 720 ILCS 5/9-1(a)(2). Thus, the jury could have con-

victed McNary of murder, even without the statements

made to Officer Hardesty.2 As a result, we cannot find

any error “sufficient to undermine confidence in the

outcome.” Strickland, 466 U.S. at 694. More importantly,

we cannot find that the Illinois Appellate Court was

unreasonable in concluding as much.

2

McNary makes much of the fact that the prosecution

elicited Investigator Ptak’s statements through leading ques-

tions, as if to imply that this fact would discredit them

enough not to sustain a conviction. This argument, however,

carries no force. Defense counsel did not object to the

questions at the time, and, once evidence is admitted, it

becomes the province of the jury to determine its reliability.

See Perry v. New Hampshire, 132 S. Ct. 716, 728 (2012).

No. 11-2759 21

McNary’s invocation of Rompilla v. Beard, 545 U.S. 374

(2005), does not persuade us otherwise. The Supreme

Court decided Rompilla in 2005—nearly four years after

the Illinois Appellate Court ruled on McNary’s ineffec-

tive assistance of trial counsel claim. We, however,

may only consider precedents at the time the state court

rendered its decision. Pinholster, 131 S. Ct. at 1399. A

court cannot apply law yet to be articulated.3

Finally, we note that McNary’s references to circuit

precedent do not help his case, except to the extent

that they re-articulate holdings of the Supreme Court.

Under § 2254(d), we only review the state proceedings

in light of “clearly established Federal law, as deter-

mined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d); see also Parker v. Matthews, 132 S. Ct. 2148,

2155 (2012) (per curiam). For all these reasons, we find

3

To the extent that the principles of Rompilla were established

in 2001, they are clearly distinguishable from this case. The

attorney in Rompilla had a duty to examine documents he

knew the prosecution would use against his client. 545 U.S. at

383. Specifically, counsel knew that the prosecution sought to

seek the death penalty by showing that Rompilla had a long

history of criminal violence. Id. Nevertheless, counsel failed

to examine Rompilla’s prior conviction file, a public document.

Id. at 384. Such behavior constituted ineffective assistance

of counsel. Id. at 389-90. Here, however, McNary’s trial counsel

was not in that position. Whereas Rompilla’s counsel had

notice of useful information and completely failed to

investigate, McNary’s counsel did not have such notice and

conducted some investigation. Thus, the situation here does

not invoke the duty articulated in Rompilla.

22 No. 11-2759

that the Illinois Appellate Court reasonably applied

federal law in determining that trial counsel was effec-

tive, even without calling Carla McNary at the suppres-

sion hearing.

b. Failure to question Officer Martinez

At trial, Officer Martinez testified that he placed

McNary “in custody” at the scene of the auto accident.

(R. 16-2 at 350.) Officer Martinez also stated as much in

his accident report. (R. 8-4 at 69.) Trial counsel, how-

ever, did not question Officer Martinez about this infor-

mation during the suppression hearing. McNary con-

tends that this omission constituted ineffective assis-

tance. The Illinois Appellate Court disagreed. That court

found that Officer Martinez’s statement merely repre-

sented his “subjective view.” (Id. at 57.) According to the

Illinois court, the inquiry of whether someone is in custody

“ ‘depends on the objective circumstances of the inter-

rogation, not on the subjective views harbored

by either the interrogating officers or the person being

questioned.’ ” (Id. at 57-58) (quoting Stansbury, 511 U.S.

at 323). Thus, the court held, Officer Martinez’s views

were irrelevant at the suppression hearing, and counsel

acted reasonably in not questioning him.

The Illinois Appellate Court was largely correct.

Miranda warnings mitigate the coercive, “police-dominated

atmosphere” of custodial interrogations. Illinois v. Perkins,

496 U.S. 292, 296 (1990). But “[c]oercion is determined

from the perspective of the suspect.” Id. Unless a reason-

able person in the suspect’s position would be aware of

No. 11-2759 23

the situation’s pressures, the subjective understandings

of police officers do not impact the custody inquiry.

See Stansbury, 511 U.S. at 325; Perkins, 496 U.S. at 296-97.

For that reason, Officer Martinez’s views would not

have influenced the court’s analysis, unless they were

somehow manifest to a reasonable person in McNary’s

position. See Stansbury, 511 U.S. at 325. Yet, McNary

was unconscious at the time Officer Martinez pulled

him from the burning vehicle. Therefore, someone in

McNary’s position could not have known Officer Marti-

nez’s views at that time.

The question remains, however, whether McNary

became aware of Officer Martinez’s subjective view

prior to the interview with Officer Hardesty. But testi-

mony from Officer Martinez would not have provided

an answer. Officer Martinez only remained at the scene

of the auto accident long enough to remove McNary

from the vehicle and place him on the ground. (R. 16-2 at

351.) Officer Martinez did not know what happened to

McNary after that point, because he went back to the

site of the hit-and-run with Marshall. (Id.) As a result,

questioning Officer Martinez would not have produced

any more information relevant to the custody inquiry.

We thus find it appropriate for the Illinois Appellate

Court to have deemed reasonable counsel’s decision not

to call Officer Martinez.

c. Failure to question McNary

In light of the previous discussion, McNary’s next

argument presents the natural corollary: McNary con-

24 No. 11-2759

tends that “trial counsel failed to ask . . . [him] about

circumstances that could objectively demonstrate that

he was in custody when questioned by Officer Hardesty.”

(Appellee’s Br. at 26.) Although McNary’s claim speaks

to the doctrine’s focus on a reasonable person in the

suspect’s position, his argument makes little sense given

the facts of his case. McNary himself testified that he

did not remember anything between running his third

red light and waking up in the hospital at 10:00 a.m.,

including his conversation with Officer Hardesty. (R. 16-2

at 478.) Therefore, unless McNary’s initial testimony was

a lie, we cannot fault counsel for failing to ask McNary

about that conversation’s details. As we have said before,

“[l]itigants must live with the stories that they tell

under oath.” Escamilla v. Jungwirth, 426 F.3d 868, 870

(7th Cir. 2005). The Illinois Appellate Court reached the

same conclusion, (R. 8-4 at 56), and we cannot find

it unreasonable for having done so.

d. Failure to question Officer Hardesty

For his final ineffective assistance of trial counsel claim,

McNary argues that counsel should have questioned

Officer Hardesty more thoroughly at the suppression

hearing. Specifically, McNary contends that counsel

should have inquired why Officer Hardesty failed to

read McNary the “Warnings to Motorist” until after he

made incriminating statements. He also argues that

counsel should have questioned Officer Hardesty about

why he failed to give McNary Miranda warnings.

No. 11-2759 25

Regardless of any potential merit to this claim, we

cannot consider it, because McNary did not present it to

the state court. Generally, a petitioner must raise a claim

in state court before raising it on federal habeas review.

28 U.S.C. § 2254(b)(1)(A); see also Richter, 131 S. Ct. at 787.

This exhaustion requirement includes raising both the

broad claim (here, ineffective assistance of counsel) but

also the specific arguments and “operative facts” within

that claim. Stevens v. McBride, 489 F.3d 883, 894 (7th Cir.

2007). McNary has not done so. Although he raised the

claim of ineffective assistance of counsel in the state

court, he did not raise the underlying facts regarding

failure to question Officer Hardesty. Therefore, McNary

has not exhausted his state court remedies on this

claim, as required by 28 U.S.C. § 2254(b)(1)(A). With-

out evidence speaking to the exceptions described

in § 2254(b)(1)(B), which McNary has not provided,

we cannot consider this claim.

2. Ineffective assistance of appellate counsel

McNary also argues that he received ineffective assis-

tance of appellate counsel. Specifically, McNary claims

that appellate counsel should have appealed the denial

of the voluntary intoxication jury instruction. Under

Illinois law at the time of McNary’s trial, defendants

had an affirmative defense if the defendant was intox-

icated to such an extent “as to suspend the power of

reason and render him incapable of forming a specific

intent which is an element of the offense.” 720 ILCS 5/6-3

26 No. 11-2759

(West 1998).4 The state trial court found that McNary

was not entitled to a jury instruction on this defense,

and, on appeal, counsel did not challenge that denial.

McNary bases his argument on two premises. First, he

posits that the issue of the denied instruction was

obvious because much of trial counsel’s elicited testi-

mony spoke to that defense. Second, McNary contends

that the error’s flagrancy, in light of Illinois state

precedent, compounded its obviousness. Thus, McNary

argues, counsel was ineffective for missing it. In 2009,

the Illinois Appellate Court disagreed. It found that

counsel acted reasonably because the underlying

state law claim on the instruction was meritless. (R. 8-6

at 102-03.)

Although the Illinois Appellate Court’s opinion rested

on a matter of state law, we must still determine

whether its decision violated McNary’s Sixth Amend-

ment rights. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

In satisfying that independent obligation, we will use

different reasoning than that of the Illinois Appellate

Court, which, again, ruled only on state law. We, however,

are concerned about whether reasonable jurists could

disagree with the state court’s conclusion, not whether

they could disagree over its reasoning. Our job is merely

to determine “if there was a reasonable justification for

the state court’s decision.” Richter, 131 S. Ct. at 790; see

also Pinholster, 131 S. Ct. at 1402 (“A habeas court must

determine what arguments or theories could have sup-

4

This statute was amended in 2002 and removed voluntary

intoxication as an affirmative defense. See 720 ILCS 5/6-3.

No. 11-2759 27

ported the state court’s decision.”) (emphasis added)

(internal brackets and ellipses omitted).

The Strickland standard also governs a claim for inef-

fective assistance of appellate counsel. Robbins, 528 U.S.

at 285. As before, the reviewing court should first look

for unreasonable conduct and then for prejudice as a

result of any error. Strickland, 466 U.S. at 687. As we

consider the first prong, we note that, “appellate

counsel . . . need not (and should not) raise every

nonfrivolous claim, but rather may select from among

them in order to maximize the likelihood of success on

appeal.” Robbins, 528 U.S. at 288 (citing Jones v. Barnes, 463

U.S. 745 (1983)). That said, it is “possible,” albeit “diffi-

cult,” to show that “counsel’s failure to raise a particular

claim” amounted to ineffective assistance. Id. In sum,

we do not second-guess “informed strategic choices.”

Strickland, 466 U.S. at 691.

A strategic choice is precisely what we have here.

McNary misconstrues the record when he contends

that appellate counsel “overlooked” the issue of the

voluntary intoxication instruction. (Appellee’s Br. at 45.)

Counsel did not miss the issue. Rather, he chose to ap-

proach it from a different angle. Appellate counsel argued

that trial counsel was ineffective for attempting to use

voluntary intoxication as a defense at all. (R. 8-4 at 13.)

Specifically, counsel argued that,

[i]t is difficult to imagine that defense counsel

would have questioned his client about his

marathon-drinking binge had he been even

faintly familiar with the law regarding voluntary

28 No. 11-2759

intoxication. The defendant was clearly preju-

diced by his attorney’s questioning him about

excessive consumption of alcohol, where there

was no possibility that the jury would receive

an instruction that would have allowed it to con-

sider voluntary intoxication as a defense.

(Id.)

It was reasonable for counsel to make this argument,

especially after the trial court had made clear that it

viewed the law as unquestionably against McNary on

this point. The court quoted a litany of cases and even

a treatise on Illinois criminal law to explain why McNary

did not qualify for the instruction. (R. 16-2 at 555-58.)

Because McNary had lost so decisively below on the

issue, counsel made an informed strategic choice to take

the opposite approach on appeal—claim that trial

counsel should have known such clear law. That argu-

ment would have lost much of its credibility had

counsel also appealed the denial of the instruction.

This strategy, while ultimately unsuccessful, was not

unconstitutionally misinformed. As we have said before,

“[t]he law in Illinois is clear: In order to constitute

an affirmative defense, voluntary intoxication must be so

extreme as to suspend all reason.” United States ex rel.

Simmons v. Gramley, 915 F.2d 1128, 1135 (7th Cir. 1990)

(citing People v. LePretre, 552 N.E.2d 1319, 1323-24 (Ill. App.

Ct. 1990)). As such, “[w]hen the record indicates that

the defendant acted with any purpose or rationality, the

defense is unavailable.” Id. (citing People v. Roesler, 552

N.E.2d 1242, 1246 (Ill. App. Ct. 1990)). We have thus

No. 11-2759 29

found counsel’s performance reasonable, despite an

unsuccessful attempt to receive a voluntary intoxication

instruction, when the “petitioner’s own testimony effec-

tively negated” the defense. Id. (citing People v. Arnold,

470 N.E.2d 981, 984 (Ill. 1984)); cf. United States v. Reed,

991 F.2d 399, 401-02 (7th Cir. 1993) (defendant received

a fair trial, despite not receiving a voluntary intoxication

instruction, because the evidence did not support the

level of intoxication needed to qualify for the defense,

even when the defendant could not remember commit-

ting the crime due to drunkenness).

For that reason, counsel in this case acted reasonably

in not appealing the denied instruction. McNary’s own

testimony at trial, along with his statements to Officer

Hardesty and Investigator Ptak, all showed that he could

form the requisite mental state. McNary knew he was

drunk and that he hit a pedestrian while traveling at a

high rate of speed. He was thus aware that his actions

had created “a strong probability of death or great

bodily harm.” 720 ILCS 5/9-1(a)(2). Yet he continued to

drive. This deliberate decision satisfies the mental

state of first-degree murder, id., while simultaneously

negating the voluntary intoxication defense, see Sim-

mons, 915 F.2d at 1135. Attempting to find a new way

around the issue, appellate counsel argued that trial

counsel prejudiced McNary by invoking the defense at

all. Given the high level of deference afforded counsel

in ineffective assistance claims, that strategy was a long-

shot, but that same deference stymies McNary now.

Our conclusion is furthered buttressed by the deci-

sion of the Illinois Appellate Court, which found chal-

30 No. 11-2759

lenging the denied instruction meritless under state law.

This ruling shows that, if there was any error, there was no

prejudice. Had counsel raised the issue, it still would

have failed. We therefore find that reasonable jurists

could not disagree with the conclusion of the Illinois

Appellate Court: McNary received effective assistance

of appellate counsel.

III. C ONCLUSION

For the foregoing reasons, we A FFIRM the district

court’s decision to deny the writ of habeas corpus.

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