In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐1002
HERNANDEZ BAILEY,
Petitioner‐Appellant,
v.
MICHAEL LEMKE, WARDEN,
Respondent‐Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 C 691 — William J. Hibbler, Judge.
ARGUED JANUARY 16, 2013 — DECIDED NOVEMBER 15, 2013
Before BAUER and HAMILTON, Circuit Judges and MILLER,*
District Judge.
MILLER, District Judge. An Illinois trial court convicted
Hernandez Bailey of one count of murder and two counts of
attempted murder. His trial counsel, William Swano, hadn’t
filed a discovery motion, so he (like the prosecutor through
*
The Honorable Robert L. Miller, Jr., District Judge of the United States
District Court for the Northern District of Indiana, sitting by designation.
2 No. 12‐1002
much of the prosecution’s case) didn’t know that one of the
eyewitnesses had testified before a grand jury. Mr. Swano
received a transcript of that grand jury testimony after the
witness left the stand, and entered into a stipulation that the
witness hadn’t told the grand jury that Mr. Bailey was at the
murder scene. Mr. Bailey contends that Mr. Swano’s perfor‐
mance was constitutionally deficient and that he is entitled to
a new trial under Strickland v. Washington, 466 U.S. 668 (1984).
All of the courts to consider this claim so far agree that
Mr. Swano’s failure to file a discovery motion fell below
prevailing professional norms, and the state doesn’t question
that finding in this court. We agree with the Illinois Appellate
Court and the federal district court that Mr. Bailey hasn’t
shown a reasonable probability that the result of his trial
would have differed but for Mr. Swano’s error. We affirm the
denial of Mr. Bailey’s petition for relief under 28 U.S.C.
§ 2254(d).
Anthony Jackson was shot to death, and Brandon Adams
and Anthony Camphor were shot but survived, during a gang
fight in May 1987. Someone had thrown a brick at a group of
people and fled. The three victims gave chase into a building,
where rival gang members opened fire. Mr. Bailey and Darryl
Moten were charged with the shootings. Mr. Moten was said
to have been the actual shooter, and Mr. Bailey (known to
the trial participants as “Peanut”) was said to have directed
Mr. Moten to shoot. Mr. Bailey waived his right to a jury, and
the case proceeded to a trial to the court. Mr. Swano filed no
pretrial discovery motion, but the state had given him a
transcript of the grand jury proceedings that led to Mr. Bailey’s
indictment.
No. 12‐1002 3
Victim Brandon Abrams testified at trial that he found a
group of about ten people standing around the building, and
asked them where the brick‐thrower had gone. He testified
that someone (he couldn’t say who) shouted, “shoot them
marks,” and someone else he couldn’t identify opened fire.
Torrence Adams testified that he and Michael Thompson were
at the building when they came upon a group of four Gangster
Disciples, including Mr. Bailey and Mr. Moten. Others ran
in, asking about the brick‐thrower, Mr. Adams said, and
Mr. Moten turned with a gun, Mr. Bailey yelled, “shoot,” and
Mr. Moten fired. Mr. Adams’s identification of Mr. Bailey as
the shouter wobbled a bit on cross‐examination.
Michael Thompson, the next witness, agreed with
Mr. Adams up to the point of identification: Mr. Thompson
said he didn’t see who fired the shots and didn’t hear
Mr. Bailey tell anyone to shoot. The State moved to have
Mr. Thompson declared a hostile witness because of inconsis‐
tent statements he’d made to police a few days after the
shooting. Officer Thomas Kelly testified that Mr. Thompson
had told him that he heard Mr. Bailey say, “shoot him, shoot
him,” and saw Mr. Moten fire several shots at Anthony
Jackson; Officer Kelly testified that he also heard Mr. Thomp‐
son say the same things to the prosecutor on the day of trial.
During this process, it came to light that Mr. Thompson had
testified before a pre‐indictment John Doe grand jury (as had
Mr. Adams). The prosecutor told the court she hadn’t known
about that testimony until Mr. Thompson mentioned it at trial.
The trial judge adjourned the trial to allow the John Doe grand
jury transcript to be obtained. The state gave attorney Swano
a copy of that transcript before trial resumed.
4 No. 12‐1002
Upon resumption of his direct examination, Mr. Thompson
agreed that he had told the police (and later told the John
Doe grand jury) he heard Mr. Bailey give the order and
saw Mr. Moten shoot, and that he had identified Mr. Bailey
in a lineup. On cross‐examination, Mr. Thompson said that
everything he said was untrue, that he had lied because the
prosecutors promised him shelter in exchange for cooperation,
and that he implicated Mr. Bailey out of a personal dislike.
The John Doe grand jury transcript showed that Mr. Adams
hadn’t mentioned Mr. Bailey’s name to the grand jury.
Mr. Adams testified in relevant part:
Q. And at that time did you see a person that you knew to
be Darryl Moten?
A. Yes, sir.
Q. How long have you known Darryl Moten?
A. About a year and a half, since he got out of Audy
Home.
Q. Was he alone or with other people?
A. With three more guys.
Q. And when you first saw Mr. Moten, where were you?
A. Walking like right beside him, you know, walking from
the store.
Q. And when you saw Mr. Moten, where was he at?
A. Standing right by the elevator.
No. 12‐1002 5
Q. Would that be near the breezeway to 4101 South
Federal Building?
A. Yes, sir.
Mr. Swano couldn’t ask Mr. Adams about that testimony;
Mr. Adams had completed his testimony and we assume he
hadn’t been brought back for the second day of trial. The
prosecutor and Mr. Swano presented two stipulations: (1) that
if Officer Kelly were called to testify, he would say he had
interviewed Mr. Adams after a lineup three days after the
shooting, and that Mr. Adams didn’t mention that Mr. Bailey
(or “Peanut”) was present at the shooting scene, or that he
heard Bailey (or “Peanut”) tell anyone to shoot, and that
Mr. Adams said two of the shooting victims were carrying
sticks as they ran into the building, and (2) that if the official
court reporter who reported the John Doe grand jury proceed‐
ings were called as a witness, she would testify that
Mr. Adams was a witness before the grand jury and never
mentioned during the course of his testimony that Mr. Bailey
or “Peanut” was present at the scene of the shooting.
The trial judge found Mr. Bailey guilty. He said the
testimony of the first eyewitness (victim Brandon Abrams)
wasn’t helpful because he didn’t identify anyone, that
Mr. Thompson’s testimony was persuasive but (because of his
recantation) insufficient alone to support a finding of guilty,
and that Mr. Adams’s testimony (which corroborated
Mr. Thompson’s) tipped the scale. The trial judge gave no
weight to the stipulation about Mr. Adams’s John Doe grand
jury testimony because there was no context in which to weigh
it.
6 No. 12‐1002
The Illinois Appellate Court affirmed Mr. Bailey’s
conviction, People v. Bailey, 638 N.E.2d 192 (Ill. App. Ct. 1994),
and Mr. Bailey sought post‐conviction relief because (among
other things) Mr. Swano hadn’t filed a discovery motion and
gotten the John Doe grand jury transcript of Mr. Adams’s
testimony in time to use it while Mr. Adams was on the stand.
The post‐conviction court agreed with Mr. Bailey, but the
appellate court reversed. People v. Bailey, 872 N.E.2d 1018 (Ill.
App. Ct. 2007). The appellate court agreed with the post‐
conviction court that the failure to move for discovery fell
below the constitutional minimum for counsel, but went on to
hold that Mr. Bailey hadn’t shown a reasonable probability that
a different result would have followed a timely discovery
motion. 872 N.E.2d at 640–41. The Illinois Supreme Court
denied leave to appeal, People v. Bailey, 882 N.E.2d 79 (Ill. 2008),
and the United States Supreme Court denied certiorari. Bailey
v. Illinois, 555 U.S. 1178 (2009).
Mr. Bailey filed a petition for federal habeas corpus relief
under 28 U.S.C. § 2254(d), arguing among other things that he
was denied effective assistance of counsel and that the Illinois
Appellate Court unreasonably applied Strickland v. Washington,
466 U.S. 668 (1984). The district court denied the petition,
holding that the Illinois Appellate Court didn’t apply law that
was contrary to Strickland and reasonably applied Strickland’s
prejudice prong. A certificate of appealability brings Mr. Bailey
to this court.
Recognizing that state courts are no less experienced than
federal courts in dealing with claims of ineffective assistance of
counsel, Burt v. Titlow, 571, U.S. —, 2013 WL 5904117 at *4 (U.S.
Nov. 5, 2013), federal law erects a high deferential standard—
No. 12‐1002 7
indeed, a “doubly deferential standard,” id. at *2—for claims
that a state court erred. Federal habeas relief is available only
if the state court’s decision “was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or
“was based on a unreasonable determination of the facts in
light of the evidence presented in the State court proceedings.”
28 U.S.C. § 2254(d)(1) and (2); see also Metrish v. Lancaster, 133
S. Ct. 1781, 1786 (2013). Mr. Bailey must show that the Illinois
courts’ disposition of his claim “was so lacking in justification
that there was an error well understood and comprehended
in existing law beyond any possibility for fair‐minded
disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786‐87
(2011); see also Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
Mr. Bailey argues for relief under all three exceptions to
§ 2254(d)’s bar on relitigation: he says the Illinois Appellate
Court (1) acted contrary to Strickland v. Washington; (2)
unreasonably applied Strickland v. Washington; and (3) based its
decision on an unreasonable determination of the facts.
Different standards govern these three exceptions. Coleman v.
Hardy, 690 F.3d 811, 815 (7th Cir. 2012). A decision is “contrary
to” clearly established federal law if the rule the decision
applies differs from governing law set forth in Supreme Court
cases. Bell v. Cone, 535 U.S. 685, 694 (2002). A decision involves
an “unreasonable application” of Supreme Court precedent if
the decision, while identifying the correct governing rule of
law, applies it unreasonably to the facts of the case. Williams v.
Taylor, 529 U.S. 362, 407 (2000). A decision “involves an
unreasonable determination of the facts if it rests upon fact‐
finding that ignores the clear and convincing weight of the
8 No. 12‐1002
evidence.” Goudy v. Basinger, 604 F.3d 394, 399‐400 (7th Cir.
2010) (citing Ward v. Sternes, 334 F.3d 696 (7th Cir. 2003)).
Mr. Bailey contends that while the Illinois Appellate Court
correctly identified Strickland as the governing Supreme Court
precedent, that court actually applied a standard that required
him to show that the outcome of the proceedings definitely
would have been—not could have been—different. We don’t
read the Illinois Appellate Court’s decision that way.
To establish prejudice from his attorney’s failure to move
for discovery, Mr. Bailey had to show a reasonable probability
that, had his attorney moved for discovery, the proceeding’s
result would have been different. Strickland v. Washington, 466
U.S. at 694. The Illinois Appellate Court expressed the proper
standard when it said, “a reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” People v. Bailey, 872 N.E.2d at 1027 (quoting
Strickland, 466 U.S. at 694). A petitioner needn’t prove by a
preponderance of the evidence that his attorney’s failure
changed the outcome, Strickland, 466 U.S. at 693, but the
standard is only slightly below that: a possibility that is
conceivable but not substantial isn’t enough. Harrington v.
Richter, 131 S. Ct. at 792.
In evaluating Mr. Bailey’s prejudice argument, the Illinois
Appellate Court considered various ways things might have
played out at trial had Mr. Swano moved for discovery:
because the prosecutor didn’t know about the John Doe grand
jury, she likely wouldn’t have produced the transcript in
response to a motion; the trial judge might not have let the
prior testimony be used as impeachment by omission; the trial
No. 12‐1002 9
judge might not have been moved to disbelieve the Adams
trial testimony. Mr. Bailey says the Illinois Appellate Court
required him to foreclose all of the possibilities. He misreads
the opinion. The appellate court evaluated what might have
happened had counsel provided constitutionally adequate
representation. Such an evaluation ordinarily is an essential
component of the prejudice inquiry. See, e.g., Warren v. Baenen,
712 F.3d 1090, 1101‐02 (7th Cir. 2013) (“there is simply nothing
that would lead us to conclude that it is reasonably probable
that the self‐defense argument would have succeeded or that
it would have been objectively reasonable to reject the plea
deal.”); Mosley v. Atchison, 689 F.3d 838, 851‐52 (7th Cir. 2012)
(upon finding failure to call witnesses fell below constitutional
minimum, court immediately turned to how witnesses’
testimony might have affected outcome).
Mr. Bailey argues that a reasonable fact‐finder could have
inferred from the Adams grand jury testimony that the reason
Mr. Adams wasn’t asked to say who was with Mr. Moten was
that the grand jury prosecutor was aware that Mr. Adams
didn’t know. This, he notes, is precisely how the state post‐
conviction court reasoned. The issue before us, though, is
whether the Illinois Appellate Court went about its business
appropriately. Even if a fact‐finder might have drawn the
inferences Mr. Bailey posits, the Strickland prejudice inquiry is
an objective one. A court doesn’t ask whether a “particular
factfinder would have found a reasonable probability from a
subjective standpoint,” Gutierrez v. Anglin, 706 F.3d 867, 871–72
(7th Cir. 2013); Raygoza v. Hulick, 474 F.3d 958, 964 (7th Cir.
2007), and the state appellate court didn’t have to consider
every conceivable effect the Adams grand jury testimony
10 No. 12‐1002
might have had on the proceedings. Richter v. Harrington, 131
S. Ct. at 792; Strickland v. Washington, 466 U.S. at 693.
The Illinois Appellate Court did precisely what the
constitutional standard demands: based on an objective look at
all the evidence of record, see Woolley v. Rednour, 702 F.3d 411,
426 (7th Cir. 2012), it concluded that since the John Doe grand
jury prosecutor hadn’t asked Mr. Adams questions that would
have elicited an identification of Mr. Bailey, and since
Mr. Thompson’s out of court statements tied Mr. Bailey to the
crimes, Mr. Adams’s omitted grand jury testimony had no
more—and maybe less—probative value than the stipulations
that were presented at trial. Those stipulations disclosed that
Mr. Adams hadn’t mentioned that Mr. Bailey was at the scene
and hadn’t mentioned hearing Mr. Bailey tell anyone to shoot,
either in the interview with Officer Kelly or in his John Doe
grand jury testimony. The grand jury transcript which we
already have set forth, offers nothing more.
Mr. Bailey also seeks relief under § 2254(d)(2), contending
that the state court’s prejudice finding was based on an
unreasonable determination of the facts. Federal courts
presume that a state court’s determination of a factual issue
was correct, and a habeas corpus petitioner bears the burden
of rebutting that presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(d)(2); Wood v. Allen, 558
U.S. 290, 293 (2010). Mr. Bailey’s argument—that he has met
that burden by raising a possibility that a fact‐finder cognizant
of the precise questions and answers at the John Doe grand
jury session would have inferred that Mr. Adams wasn’t asked
about Mr. Bailey because the prosecutor asking the questions
No. 12‐1002 11
knew that Mr. Adams didn’t know anything about
Mr. Bailey—falls well short of that hurdle.
Citing Kyles v. Whitley, 514 U.S. 419, 434 (1995), Mr. Bailey
argues tersely that the Illinois Appellate Court erred by
looking to the sufficiency of the evidence. In Kyles, a case
considering the related test for undisclosed exculpatory
evidence under Brady v. Maryland, 373 U.S. 83 (1963), and
United States v. Bagley, 473 U.S. 667, 682 (1985) (reversal
required “if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different”), the Court explained
that even when sufficient evidence to convict exists with the
missing information, the inquiry goes on. Assuming—without
deciding—that all of the tests set forth in the Brady/Bagley/
Kyles line of cases apply equally to the prejudice prong under
Strickland, the Illinois Court of Appeals acted properly. The
sufficiency of Mr. Thompson’s statements was mentioned in
evaluating prejudice, but the court didn’t treat it as dispositive.
People v. Bailey, 872 N.E.2d at 1021–22. It would seem difficult
to decide prejudice under Strickland without evaluating the rest
of the evidence.
The Illinois Appellate Court’s resolution of Mr. Bailey’s
ineffective assistance of counsel claim is consistent with, and
a reasonable application of, the constitutional standard the
Supreme Court articulated in Strickland v. Washington, 466
U.S. 668, and contains a reasonable determination of the facts
in light of the evidence presented. When the state court’s
decision “is one of severally equally plausible outcomes,”
§ 2254(d) forecloses federal habeas corpus relief. Woolley v.
12 No. 12‐1002
Rednour, 702 F.3d 702 F.3d 411, 425 (7th Cir. 2012); Hall v.
Washington, 106 F.3d 742, 749 (7th Cir. 1997).
We AFFIRM the district court’s judgment.