In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1744
JOSEPH S MITH,
Petitioner-Appellant,
v.
S COTT M C K EE, Acting Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00-C-4482—Joan B. Gottschall, Judge.
A RGUED D ECEMBER 1, 2009—D ECIDED M ARCH 16, 2010
Before P OSNER, FLAUM and SYKES, Circuit Judges.
F LAUM, Circuit Judge. This case comes to us on appeal
from a denial of a petition for habeas corpus. On March 9,
1995, an Illinois jury found petitioner, Joseph Smith,
guilty of first-degree murder and attempted robbery. The
trial court sentenced Smith to fifty-five years for the
murder charge and fourteen years for the attempted
armed robbery charge, to run concurrently. Smith brings
this habeas petition to challenge his conviction on three
2 No. 09-1744
grounds: ineffective assistance of trial counsel, ineffective
assistance of appellate counsel, and violation of his Sixth
Amendment right to confront his accuser. The district
court found that Smith had procedurally defaulted on
all of these claims either because he did not raise them
for an entire round of appellate review in the state courts
or because the state court rested its decision on an inde-
pendent state law ground. For the reasons set forth
below, we affirm the district court’s denial of the habeas
corpus petition.
I. Background
A. Factual Background
During the late night hours of April 6, 1992, Frank
Miranda, the victim, and Dale Sramek went to 47th Street
and Leamington, on the southside of Chicago, to buy
crack cocaine. They had both been smoking crack cocaine
for several hours already that evening. While on the
corner of 47th Street and Leamington, Bobby Severson
and Charles Queen joined them. Antoine Edwards, Smith’s
co-defendant, approached Miranda, Sramek, Severson,
and Queen and offered to get drugs for them. After
about twenty minutes, Edwards returned to the empty
lot near the corner of 47th and Leamington with an-
other individual carrying a shotgun. Severson, Queen,
and Miranda crossed the street into the empty lot
where Edwards and the other individual were standing.
According to Sramek, Miranda ran ahead because he
wanted to be the first to get his drugs. As Miranda ap-
proached Edwards and the other individual, Edwards’s
No. 09-1744 3
accomplice pulled out a shotgun and demanded money.
Miranda replied to the demand for money by yelling
“Fuck you” and walking away. As Miranda turned to
walk away, Edwards’s accomplice shot Miranda in
the back.
After the shooting, Sramek and Queen remained at the
scene to speak to the police. Severson left the scene
before the police arrived. Sramek told the police that he
could not make out the shooter’s face but that he did see
that the shooter was wearing a light jacket and yellow
sweatpants. According to Queen’s testimony at trial,
Queen told the police that the shooter was tall and
wearing a long, dark-colored jacket and was not wearing
yellow sweatpants. The police did not document Queen’s
statement. Shortly after the shooting, Severson came
forward as a witness. A month passed with no further
developments in the case. Then, the police took Edwards
into custody for a different robbery. Noticing a con-
nection to the Miranda shooting, the police conducted a
line-up in which Severson identified Edwards as the
individual who offered to get the group drugs. After
several conversations with Detective Michael Duffin and
other police officers, Edwards told the officers that Smith
was his accomplice and brought Detective Duffin to
Smith’s house. Smith was not home, but Smith’s older
brother gave Detective Duffin a photograph of Smith and
Detective Duffin left his business card. Detective Duffin
returned to the police station and placed the photograph
of Smith in a photo array. Severson positively identified
Smith as the shooter. Shortly thereafter, Smith returned
home and called Detective Duffin. Detective Duffin sent
4 No. 09-1744
someone to pick up Smith. Once Smith arrived at the
police station, Detective Duffin placed Smith in a line-up.
Severson positively identified Smith again. Following
the line-up, Smith gave a statement to Assistant State’s
Attorney James Sullivan and Detective Duffin admitting
his involvement. This statement was not recorded. Smith
did not reduce this statement to writing or sign anything
acknowledging that he made such a statement.
At trial, the state’s case against Smith mainly rested on
the testimony of Sramek, Severson, and Queen, as well
as the undocumented confession of Smith. Sramek
testified consistently with his statement to the police on
the night of the shooting that he could not identify the
shooter. Severson testified consistent with his identifica-
tion of Smith in the photo array and line-up. Queen,
despite never having identified Smith prior to trial, identi-
fied Smith during his direct-examination testimony as
the man who shot Miranda. Smith’s counsel objected to
this identification as unduly suggestive because Smith
was the only black male at the defense table. The court
overruled this objection. The state also called Assistant
State’s Attorney James Sullivan and Detective Duffin to
testify about Smith’s statement at the time of arrest. Both
Sullivan and Detective Duffin testified that Smith con-
fessed to the shooting and that Smith refused to reduce
the statement to writing. Sullivan testified that he
made notes of Smith’s statement. Detective Duffin also
testified that Edwards lead him to Smith’s house, but
did not testify to the content of any conversations
between himself and Edwards. The trial court severed
Edwards’s trial from Smith’s trial. Edwards did not
No. 09-1744 5
testify against Smith. Smith took the stand in his own
defense and testified that he was home studying—
he was seventeen and in high school at the time of the
shooting—on the night of April 6, 1992. Smith also denied
ever making a statement admitting to the shooting.
Smith did not present any alibi witnesses.
During closing argument, the state made two com-
ments relevant to Smith’s habeas petition. The first com-
ment related to Detective Duffin’s testimony about his
interview with Edwards. Although the state did not
elicit the content of that interview from Detective Duffin
during his testimony, the prosecutor repeatedly referred
to the fact that Edwards led Detective Duffin to Smith’s
house during the closing argument. To cement the infer-
ence that Edwards had inculpated Smith in his conversa-
tion with Detective Duffin, the prosecutor made the
following argument:
Antoine Edwards after being picked out of the
lineup has a conversation, and that conversation is
with Detective Duffin. And you learn [sic] about that
conversation. . . . But first of all he has a conversation,
and after that conversation it’s very important to
note that after that conversation, where does he go?
Where does Antoine Edwards go? He goes with
Detective Duffin, and he goes to the house of Antoine
Crawford, the man we later learn was given the gun
that was involved in the shooting, and he goes
with Detective Duffin to the house of [Smith].
Smith’s counsel did not object to this statement during
the prosecutor’s closing argument. Later, in the state’s
6 No. 09-1744
rebuttal closing, the prosecutor again broached the topic
of Detective Duffin’s conversation with Edwards, stating,
“Is it Robert Severson who leads the police to this defen-
dant? No, after a conversation with Antoine Edwards–.”
Smith objected to this argument mid-sentence. The
court sustained the objection and instructed the jury to
disregard the argument.
At the close of the trial, the court instructed the jury
on law. Relevant to this habeas petition, the court gave
Illinois Pattern Criminal Jury Instruction 3.15 when
instructing the jurors on how they should weigh the
identification testimony. At the time of Smith’s trial, Jury
Instruction 3.15 gave a five-factor analysis, but con-
nected the five factors with “or,” implying that the
jury needs to find the presence of one of the five factors
to find the identification reliable.
During deliberations the jury sent a note to the court
that it was deadlocked. The court instructed the jury
to keep deliberating and sequestered the jurors over-
night. The next day the jury came back with a guilty
verdict. The trial court sentenced Smith to fifty-five
years in prison.
B. Procedural Background
Smith promptly appealed his conviction. On direct
appeal, Smith raised three claims: (1) his right to
confront witnesses against him was violated by the intro-
duction of Edwards’s statements to the arresting officer
and the prosecutor’s references to these statements in
No. 09-1744 7
closing argument; (2) the prosecutor made inflammatory
arguments that reversed the presumption of innocence
during closing argument; and (3) his sentence was ex-
cessive. The Illinois appellate court found that Smith
waived his Confrontation Clause claim because he
did not object to the testimony of Detective Duffin at
trial nor did he address this issue in any post-trial mo-
tion. However, the court also found that this claim failed
on the merits because Detective Duffin was explaining the
course of his investigation and did not introduce Ed-
wards’s statements for their truth. The appellate court
found that Smith had also waived this issue with regard
to the prosecutor’s statements in closing argument to
which he did not object. The court went on to find that
they would have been admissible even had Smith ob-
jected at trial because they explained the officer’s course
of conduct. The court cited to People v. Gill, 637 N.E.2d
1030, 1036 (Ill. Ct. App. 1992), to support its finding that
there was no error with regard to the prosecutor’s state-
ment to which Smith did object because the objection
was timely sustained and the jury was ordered to disre-
gard the statement. Finally, the court found that the
introduction of these statements would have been harmless
even had they been improper because of the weight of
the evidence against Smith. Turning to the second issue,
the appellate court found that Smith waived his claim
that the prosecutor’s statements in closing potentially
shifted the burden of proof, and that the statements
would have been permissible even if the issue was not
waived. Lastly, the appellate court found that the trial
court did not abuse its discretion in sentencing Smith to
fifty-five years in prison. Smith filed a Petition for Leave
8 No. 09-1744
to Appeal (“PLA”) to the Illinois Supreme Court which
was denied on March 31, 1999.
On June 22, 1999, Smith filed a pro se post-conviction
petition. He raised five claims: (1) he was not convicted
beyond a reasonable doubt; (2) there was no probable
cause to arrest him; (3) he was convicted based on unreli-
able identification testimony; (4) his trial attorney was
ineffective; and (5) his sentence was excessive. The
trial court summarily dismissed the petition on the
grounds that the issues were waived or barred by
res judicata.
On July 19, 2000, Smith filed a petition for writ of
habeas corpus in the Northern District of Illinois, ad-
vancing four claims: (1) the prosecution elicited false
testimony regarding the arrest of Antoine Edwards;
(2) the prosecution improperly vouched for the credi-
bility of its witnesses; (3) the trial court abused its dis-
cretion in granting Edwards’s motion to sever the trial;
and (4) trial counsel was constitutionally ineffective
for failing to investigate the evidence, file a motion to
suppress, mount an adequate defense at trial, and chal-
lenge Queen’s eyewitness identification as inadequate.
On that same day, Smith filed a motion to stay the
habeas proceedings until the conclusion of state court
proceedings. On August 16, 2000, Smith voluntarily with-
drew the petition.
On December 21, 2000, Smith filed a successive pro se
post-conviction petition in the Circuit Court of Cook
County. In this post-conviction petition, Smith reiterated
his former claims and also alleged the existence of newly
No. 09-1744 9
discovered evidence of his actual innocence. Smith at-
tached an affidavit of his co-defendant, Edwards,
stating that Edwards had falsely implicated Smith and
that Smith did not shoot Miranda. Smith also attached
the affidavit of an eyewitness, Michael Williams, who
was an acquaintance of Smith, stating that he saw the
shooting and that Smith was not the shooter. The trial
court dismissed the successive petition on February 22,
2001 as frivolous and patently without merit. Smith
appealed, raising three claims: (1) the trial court erred in
summarily dismissing Smith’s successive post-conviction
petition on forfeiture grounds because the petition
stated the gist of a meritorious claim based on new evi-
dence and actual innocence; (2) trial counsel was inef-
fective for failing to investigate alibi witnesses and for
not objecting to the erroneous jury instruction; and
(3) appellate counsel was ineffective for not raising a
challenge to an in-court identification. On April 28,
2003, the state appellate court affirmed the trial court’s
dismissal of the successive petition. The court found
that Smith’s claims were forfeited and that petitioner
had not demonstrated cause and prejudice to excuse
the forfeiture. Smith filed a PLA claiming that the
appellate court misapplied the Illinois Post-Conviction
Hearing Act by affirming the trial court’s summary
dismissal of the petition at the first stage based on
waiver or a failure to show cause and prejudice, and
the appellate court made inappropriate new factual
determinations not on the record. The Illinois Supreme
Court denied Smith’s PLA on October 7, 2003.
On April 1, 2004, Smith filed an amended habeas
corpus petition in the Northern District of Illinois. Upon
10 No. 09-1744
the state’s answer to the petition, the district court ap-
pointed counsel for Smith. Smith’s new counsel filed an
amended petition on July 24, 2007, raising following
claims:
(1) trial counsel was constitutionally ineffective for
failing to (i) object to an improper jury instruction
concerning how to weigh identification testimony of
a witness; and (ii) interview and present at trial
alibi witnesses;
(2) appellate counsel was constitutionally ineffective
for not arguing on appeal that the trial court erred
in denying petitioner’s motion to strike Queen’s in-
court identification and his motion for a mistrial; and
(3) the State elicited testimony from Detective Duffin
that led to the inference that petitioner’s co-defendant
implicated petitioner in the shooting, in violation of
the Confrontation Clause.
On January 26, 2009, the district court denied the peti-
tion. The district court found all of Smith’s claims pro-
cedurally defaulted either because they had not been
raised and fairly presented through one complete round
of state court review or because they had been denied
based on an independent and adequate state law
ground, or both. The district court went on to find that
Smith could not avoid his defaults by showing cause
and prejudice because to satisfy that burden he relied on
his procedurally-defaulted claim that counsel was inef-
fective for not raising these claims. Finally, the district
court found that Smith could not adequately demonstrate
a claim of actual innocence.
No. 09-1744 11
On March 20, 2009, the district court granted Smith a
Certificate of Appealability, certifying for review the
three substantive issues raised in the amended petition
and the procedural default of those issues.
II. Discussion
We review the district court’s denial of a habeas petition
de novo. Ben-Yisrayl v. Buss, 540 F.3d 542, 546 (7th Cir.
2008). 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 in-
volved an unreasonable application of Supreme Court
precedent,” or “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.” 28
U.S.C. §§ 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362
(2000).
As a threshold matter, we must determine if Smith has
procedurally defaulted on his three claims. Before a
federal court can consider a petition for habeas corpus, a
petitioner must satisfy several procedural requirements.
If the claim comes from the Illinois state courts, the peti-
tioner must have presented each claim in the habeas
petition to the Illinois Appellate Court and to the Illinois
Supreme Court in a petition for discretionary review.
O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). As
part of this requirement, a petitioner must have fairly
presented both the operative facts and legal principles that
control each claim to the state judiciary. Wilson v. Briley,
243 F.3d 325, 327 (7th Cir. 2001). A petitioner’s failure
12 No. 09-1744
to fairly present each habeas claim to the state’s appel-
late and supreme court in a timely manner leads to a
default of the claim, thus barring the federal court from
reviewing the claim’s merits. O’Sullivan, 526 U.S. at 848.
Also, a federal court may not review a claim which was
presented to the state courts but which was rejected on
an independent and adequate state ground. Coleman v.
Thompson, 501 U.S. 722, 729-30 (1991). A state law ground
that provides the basis for a state court decision is inde-
pendent when the court actually relied on the procedural
bar as an independent basis for its disposition of the
case. United States ex. rel. Bell v. Pierson, 267 F.3d 544, 556
(7th Cir. 2001). A state law ground is adequate when it is
a firmly established and regularly followed state practice
at the time it is applied. Franklin v. Gilmore, 188 F.3d 877,
882 (7th Cir. 1999). A federal court may excuse a proce-
dural default if a petitioner can show either cause for the
default and actual prejudice as a result of the alleged
violation of federal law, or can demonstrate that failure
to consider the claim will result in a fundamental mis-
carriage of justice. Coleman, 501 U.S. at 750. Under this
cause-and-prejudice test, a cause is defined as, “an objec-
tive factor, external to the defense, that impeded the
defendant’s efforts to raise the claim in an earlier pro-
ceeding.” People v. Britt-El, 794 N.E.2d 204, 209 (Ill. 2002).
Prejudice means, “an error which so infected the entire
trial that the resulting conviction violates due process.” Id.
We address each claim with regard to the district court’s
finding of procedural default. We then turn to the issue
of whether we should set aside the procedural default
due to a claim of actual innocence and miscarriage
of justice.
No. 09-1744 13
A. Claim One: Ineffective Assistance of Trial Counsel
Smith cites two errors by trial counsel to support his
first ineffective-assistance-of-counsel claim. The district
court found that they were both procedurally defaulted.
First, petitioner claims that trial counsel was ineffective
because it failed to object to the use of Illinois Criminal
Pattern Jury Instruction 3.15. Jury Instruction 3.15, as it
was given to the jury, read:
When you weigh the identification testimony of a
witness, you should consider all the facts and circum-
stances in evidence, including, but not limited to the
following: [1] The opportunity the witness had to
view the offender at the time of the offense; [or] [2]
The witness’s degree of attention at the time of the
offense; [or] [3] The witness’s earlier description of the
offender; [or] [4] The level of certainty shown by the
witness when confronting the defendant; [or] [5]
The length of time between the offense and the iden-
tification confrontation.
Illinois Pattern Jury Instructions, Criminal, No. 3.15 (3d ed.
1992) (brackets in original). Several years after Smith’s
trial, in 2001, the Illinois Court of Appeals found that the
use of the disjunctive between each factor in the jury
instruction constituted plain error because it “implied, as
a matter of law, that the identification testimony of an
eyewitness may be deemed reliable if just one of the five
factors listed weighs in favor of reliability.” People v.
Gonzalez, 761 N.E.2d 198, 207 (Ill. Ct. App. 2001).
The district court found that it could not reach the
merits of this issue because the state court denied this
14 No. 09-1744
claim on the basis of the independent state law ground
of forfeiture. Smith does not argue that forfeiture is not
an independent and adequate state ground. Rather, he
argues that the state court did not rely solely on forfeiture.
Smith relies on our statement in Moore v. Bryant, 295
F.3d 771, 774 (7th Cir. 2002):
If the decision of the last state court to which the
petitioner presented his federal claims fairly appears
to rest primarily on the resolution of those claims, or
to be interwoven with those claims, and does not
clearly and expressly rely on the procedural default,
we may conclude that there is no independent and
adequate state ground and proceed to hear the
federal claims.
Smith argues that the state court interwove its forfeiture
finding with a review of the merits. However, the state
court’s opinion does not support this argument. The
state court briefly addresses the merits of this claim, but
did so only in the context of the cause-and-prejudice
analysis required to set aside forfeiture. The state court
rested its dismissal of this issue on the fact that Smith
did not raise it on direct appeal or in either of his
post-conviction petitions. Smith did not raise this issue
until his appeal from the denial of his successive post-
conviction petition. The district court also found that this
claim was procedurally defaulted because the petitioner
did not raise it before the Illinois Supreme Court in his
PLA, thus failing to raise this claim in a full round of
appellate review. See Boerckel, 526 U.S. at 845-46.
Because this claim was procedurally defaulted, Smith
must show cause for not raising this issue at the appro-
No. 09-1744 15
priate stage of appeal and prejudice from the alleged
error. See Coleman, 501 U.S. at 750. To show cause, Smith
argues that the ineffective assistance of his appellate
counsel caused the default. Ineffective assistance of
counsel can, at times, be sufficient to show cause. See
Murray v. Carrier, 477 U.S. 478, 488-89 (1988). However,
this does not explain why Smith did not raise this issue
in his first petition for post-conviction relief, nor why
he did not raise it in his PLA from the dismissal of his
petition for post-conviction relief. To show prejudice,
Smith points to the fact that this case was based primarily
on the testimony of two eye witnesses who were both
under the influence of drugs at the time of the incident,
which makes this jury instruction particularly pertinent.
However, it is not clear that giving this jury instruction
in the conjunctive, rather than the disjunctive, would
have had any impact on the jury’s deliberation process.
Notably, the prosecutor argued in closing the importance
of multiple factors from the jury instruction being
present in the identifications. Because Smith fails to show
adequate cause and prejudice, this claim has been proce-
durally defaulted.
Finally, Smith would likely fail on the merits of this
claim. To succeed on an ineffective assistance of counsel
claim, petitioner must prove both that (1) his counsel’s
performance fell below “an objective standard of reason-
ableness,” and (2) “there is a probability that, but for
counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.” Strickland v. Washing-
ton, 466 U.S. 668, 688 (1984). The Illinois Court of Appeals
has found that failure to tender proper jury instructions
16 No. 09-1744
can rise to the level of ineffective assistance of counsel.
See People v. Serrano, 286 N.E.2d 1011 (Ill. Ct. App. 1997)
(holding that counsel’s failure to tender an instruction
regarding compulsion as an affirmative defense rose to
the level of ineffective assistance of counsel in a case
where the defendant admitted to the murder but
presented the affirmative defense of compulsion). How-
ever, failure to tender a jury instruction that is central to
the defendant’s theory of the case is different from a
lawyer’s failure to object to the use of an applicable
pattern jury instruction. Pattern Jury Instruction 3.15 was
codified in 1992 and remained in use until 2001. Defense
counsel did not act in an objectively unreasonable
manner by not objecting to the use of an applicable
pattern jury instruction.
Smith next claims that his trial counsel was ineffective
for failing to call Michael Williams, who would have
testified that another individual was the shooter, and
Mark Sims, who would have testified as an alibi witness.
The district court found that it could not reach the
merits of this issue because it was also procedurally
defaulted. The state court found that Smith’s claim re-
garding the failure to call Williams was forfeited because
he did not raise it in his first petition for post-conviction
relief. Smith contends that his trial counsel’s failure to
call Williams as a witness amounted to ineffective assis-
tance of counsel because Williams’s willingness to testify
on Smith’s behalf was known at the time of trial. How-
ever, this contention cuts directly against Smith’s argu-
ment that he did not raise this earlier because Williams’s
testimony is newly discovered evidence. It is less clear
No. 09-1744 17
when Smith learned of Sims as a witness. Smith failed to
ever name Sims as a newly discovered alibi witness in
any state court filings. The state court, relying on the
Illinois Post-Conviction Act, found that Smith forfeited
his claim of a newly discovered alibi witness because
he did not reference Sims by name and he did not attach
an affidavit of Sims when raising this issue to the
Illinois Court of Appeals. The state court considered the
merits of the claim when determining whether Smith
showed sufficient cause and prejudice to exempt him
from forfeiture. Contrary to Smith’s contention, the
Illinois Appellate Court did not address the merits of the
underlying claim as an alternative holding. In addition
to procedural default due to forfeiture, the district court
also found that this claim was procedurally defaulted
because it was not raised to the Illinois Supreme Court
in the PLA.
Because this claim is procedurally defaulted, we must
again consider whether Smith can assert cause and preju-
dice to justify setting aside the procedural default. Smith
cannot. Smith argues that his trial counsel provided
ineffective assistance of counsel by neglecting to call
these witnesses, and that this flaw justifies Smith’s own
failure to include these claims in his post-conviction
petition or his PLA. However, Smith filed his own post-
conviction petition and PLA. Therefore, this argument
relies on his pro se status to show cause for not raising
this issue at the appropriate time. This court has specifi-
cally rejected the argument that a petitioner’s pro se
status alone constitutes cause in a cause-and-prejudice
analysis. Harris v. McAdory, 334 F.3d 665, 668 (7th Cir.
18 No. 09-1744
2003); Barksdale v. Lane, 957 F.2d 379, 385-86 (7th Cir. 1992).
Without a showing of cause this claim is procedurally
defaulted.
Furthermore, if we reached the merits of this issue,
Smith would likely fail on this claim. As stated above, to
succeed on an ineffective assistance of counsel claim,
petitioner must prove both that (1) his counsel’s perfor-
mance fell below “an objective standard of reasonable-
ness,” and (2) “there is a probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 466 U.S. at 688.
Smith compares this case to Raygoza v. Hulick, 474 F.3d 958
(7th Cir. 2007), to support his argument that his counsel
was ineffective. In Raygoza, we found that an attorney’s
failure to investigate a defendant’s alibi did constitute
ineffective assistance of counsel. However, in Raygoza,
unlike in this case, petitioner showed that an investiga-
tion of alibi witnesses would have turned up numerous
witnesses, some related and some not related to the
defendant, who all would have told a consistent story
about where the defendant was the entire night of the
crime. 474 F.3d at 964. In this case, an investigation
would have only turned up one alibi witness who claims
to have seen Smith studying at some time around 11 p.m.
on the night of April 6, 1992. Unlike in Raygoza, where the
failure to present the group of witnesses likely did effect
the outcome of the case, the failure to present Sims’s
testimony likely had no effect on the outcome given
the other evidence presented.
No. 09-1744 19
B. Claim 2: Ineffective Assistance of Appellate Counsel
Smith next argues that his appellate counsel was ineffec-
tive for failing to raise the issues surrounding Queen’s
identification of Smith. Smith claims that Queen’s iden-
tification was unduly suggestive and therefore unreliable.
Queen had never identified Smith prior to the trial. The
first time Queen identified Smith as the shooter was
during the state’s direct examination of him. When Queen
made the identification, Smith was the only black male
at the defense table. Although Smith objected to the
identification at trial as unduly suggestive, he did not
raise this issue again until his appeal from his successive
post-conviction petition. The district court found this
issue to be procedurally defaulted because the state
court based its ruling to dismiss the claim in the post-
conviction petition on independent state law grounds. In
adjudicating this issue the state court did not specifically
use the word “forfeiture,” but rather jumped immediately
to a cause-and-prejudice analysis. The district court
correctly read this analysis as a forfeiture analysis,
despite the fact that the state court did not use the
specific word forfeiture.
Because the claim is procedurally defaulted, we must
consider whether Smith adequately points to cause and
prejudice to warrant a waiver of the procedural default.
Smith does not sufficiently show cause for why he
did not raise this issue in his post-conviction petitions.
He relies on the ineffective assistance of appellate
counsel to justify not raising this issue at the post-convic-
tion phase. However, appellate counsel’s shortcomings
offer no explanation for why he did not raise this issue
20 No. 09-1744
in his initial pro se post-conviction petition when he was
no longer represented by appellate counsel.
Furthermore, on the merits this claim would also likely
fail. To succeed on an ineffective assistance of appellate
counsel claim, petitioner must show that “appellate
counsel failed to raise an issue that was both obvious
and clearly stronger than the issues he did raise.” Smith
v. Gaetz, 565 F.3d 346, 352 (7th Cir. 2009). On appeal,
appellate counsel addressed the issues of potentially
improper statements by the prosecutor, Detective Duf-
fin’s testimony about his conversation with Edwards, and
the nature of Smith’s sentence. It is not clear that the
issue of Queen’s identification was stronger than these
issues. In addressing claims of unreliable identifications,
we have repeatedly held that “a defendant’s mere
presence at the defense table is not enough to establish
a violation of due process.” United States v. Recendiz, 557
F.3d 511, 525 (7th Cir. 2009). Smith raises several argu-
ments that would be appropriate to make to a jury about
why this identification was unreliable. However, Smith
does not point to any cases where a trial court had to
exclude a similar identification as unduly suggestive. It is
likely that appellate counsel found this dearth of caselaw
instructive in deciding not to raise this issue. This deci-
sion by counsel does not amount to ineffective assistance
of appellate counsel.
C. Claim 3: Confrontation Clause Issue
Lastly, Smith claims that his Sixth Amendment Con-
frontation Clause rights were violated when the state
No. 09-1744 21
elicited testimony from Detective Duffin which led to
the inference that Edwards, who did not testify at trial,
had implicated Smith in the shooting. Smith first raised
this issue on direct appeal. The state appellate court
held that Smith forfeited this claim by failing to object
at trial or raise this issue in a post-trial motion. Smith
did not object during Detective Duffin’s testimony and
only objected to one statement during the state’s closing
argument when the prosecutor attempted to explicitly
draw the inference for the jury that Edwards implicated
Smith in the crime. The trial court sustained the one
objection Smith made. With regard to the one statement
objected to, the appellate court found no error because
the objection was sustained and the prosecutor did not
complete the offending argument. After finding the
claim forfeited, the state appellate court did discuss the
merits and found that the statement was not hearsay, but
rather admissible testimony listing the investigative
steps taken by Detective Duffin. Smith again argues that
the presence of any discussion of the merits indicates that
the state court did not base its ruling on independent
state law grounds. However, that is not the law. Only
when the state court’s analysis of state law and federal
law grounds are interwoven, to such an extent that we
cannot clearly determine whether the state court opinion
relies on state law grounds, do we set aside the state law
grounds and address the issue. However, in this case,
the state court held that the issue was procedurally de-
faulted. Then, in dicta, the court chose to address the
validity of the claim. The dicta does not change the state
court’s holding, which was solidly grounded in state law.
22 No. 09-1744
Because the Sixth Amendment issue has been procedur-
ally defaulted, we must consider whether Smith shows
cause and prejudice to warrant setting aside the forfei-
ture. Smith relies on the ineffective assistance of his trial
counsel to show cause. However, Smith notably does not
raise this failure of trial counsel in his ineffective assistance
of trial counsel claim asserted above. This bare assertion
that trial counsel’s failure to object and to include this issue
in the post-trial motion constitute cause would eviscerate
the notion of forfeiture: a failure to raise an issue would
constitute cause to justify not raising the issue. Smith
cannot show cause.
Further, this claim would likely fail on its merits under
AEDPA standards. Smith relies primarily on Crawford v.
Washington, 541 U.S. 36 (2004), to support his argument
that the trial court violated his Confrontation Clause
rights. However, Crawford came down nine years after
Smith’s trial. The holding of Crawford cannot be con-
sidered settled Supreme Court precedent for the pur-
poses of habeas corpus if the Supreme Court had not yet
decided the case. At oral argument, Smith backed away
from Crawford and relied on Ohio v. Roberts, 448 U.S. 56
(1980). However, Ohio v. Roberts draws a much fuzzier
line around the Confrontation Clause issue than Crawford
does. Unlike Crawford, which draws a clear line that
testimonial statements of witnesses absent from trial are
admissible only where the declarant is unavailable and
the defendant has had a prior opportunity to cross-
examine the absent witness, 541 U.S. at 59, Ohio v.
Roberts held that a statement of an unavailable witness
is admissible when, “it bears adequate ‘indicia of reliabil-
No. 09-1744 23
ity,’ ” 448 U.S. at 66. The Court clarified the term “indicia
of reliability” by stating, “[r]eliability can be inferred
without more in a case where the evidence falls within a
firmly rooted hearsay exception. In other cases, the evi-
dence must be excluded, at least absent a showing of
particularized guarantees of trustworthiness.” Id. Under
the standard of Roberts, it is unclear that Detective
Duffin’s testimony about his conversations with
Edwards was impermissible.
It is also unclear whether Detective Duffin’s statements
were hearsay at all. Courts throughout the country,
including this court, have repeatedly recognized that
statements offered to explain an officer’s course of
conduct are not hearsay statements because they are not
offered for the truth of the matter asserted. E.g, United
States v. Breland, 356 F.3d 787 (7th Cir. 2004). This state-
ment walks that line. The testimony of Detective Duffin
alone would likely not be hearsay because there was no
specific statement referenced. The prosecutor’s closing
argument pushed the boundary of hearsay by explicitly
arguing that the jury should draw the inference that
Edwards told Detective Duffin that Smith was the
shooter. However, determining when the line has been
crossed, such that an officer’s testimony about his course
of conduct becomes hearsay, is a somewhat murky area
of the law. Therefore, we cannot say that the decision to
allow this testimony and the statements of the prosecutor
was a clearly erroneous application of settled Supreme
Court precedent at the time of Smith’s trial as we would
be required to find to grant habeas.
24 No. 09-1744
D. Miscarriage of Justice and Actual Innocence
Finally, Smith attempts to avoid all of the procedural
bars to this petition by arguing that he has put forth new
evidence of his actual innocence and therefore to deny
the petition would result in a miscarriage of justice. This
is a high bar for Smith to meet. The fundamental miscar-
riage of justice exception requires “the habeas petitioner
to show that a constitutional violation has probably
resulted in the conviction of one who is actually innocent.
To establish the requisite probability, the petitioner
must show that it is more likely than not that no rea-
sonable juror would have convicted him in the light of the
new evidence.” Schlup v. Delco, 513 U.S. 298, 327 (1995).
To support his actual innocence claim, Smith relies on
the affidavits of Mark Sims, who would have testified that
he saw Smith at home studying on the night in question,
and Michael Williams, who would have testified that he
saw the shooting and Smith was not the shooter. In light
of our precedent in Hayes v. Battaglia, 403 F.3d 935 (7th
Cir. 2005), the affidavits of these two witnesses do not
warrant the application of the miscarriage of justice
exception. In Hayes, the petitioner put forth affidavits of
six alibi witnesses not called at trial. We held that this
was not sufficient new evidence to show actual innocence
because the government put on six witnesses claiming
the petitioner committed the crime. We found that a six-
verus-six split between exculpatory and inculpatory
witnesses meant that the defendant did not meet the
high threshold for an actual innocence claim. Hayes, 403
F.3d at 937. Smith has put forth the statements of
No. 09-1744 25
two witnesses not called at trial, one of whom Smith
apparently knew about since 1992. This does not suffi-
ciently counter the state’s two eye witness identifications
and the evidence of Smith’s self-inculpating statement
to Detective Duffin and State’s Attorney Sullivan.
IV. Conclusion
For the foregoing reasons, we A FFIRM the district court’s
denial of the habeas corpus petition.
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