In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3152
THEODORE LEE, JR.,
Petitioner-Appellant,
v.
CECIL DAVIS, SUPERINTENDENT,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 01-C-109—Allen Sharp, Judge.
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ARGUED OCTOBER 29, 2002—DECIDED APRIL 25, 2003
____________
Before CUDAHY, COFFEY, and EASTERBROOK, Circuit
Judges.
CUDAHY, Circuit Judge. Theodore Lee, Jr. appeals the
denial of his petition for a writ of habeas corpus under
28 U.S.C. § 2254. Lee’s failure to raise the issue of pros-
ecutorial misconduct on direct appeal means that the issue
was procedurally defaulted. Because Lee cannot demon-
strate cause for his default, his petition fails. The district
court’s denial of Lee’s petition was proper and we affirm.
I.
Theodore Lee, Jr. and Scott Rainey beat and attempted to
rob Cleo and Golda Hedges inside the Hedges’ home in Pike
2 No. 01-3152
County, Indiana on October 7, 1992. One of the two lay
in the grass in front of the Hedges’ back door, feigning
injury, while the other knocked on the door requesting
help for his “injured” friend. Once Cleo Hedges opened the
door, the assailant pushed his way inside, beat Cleo and
Golda and fled (with the “injured” friend) having taken
nothing. Neither Cleo nor Golda could identify which of
Lee and Rainey had been the assailant and which the
person lying in the grass.
When Lee was arrested, he waived his Miranda rights
and confessed that he and Rainey had attempted to rob the
Hedges. Lee claimed that, because of a drug- and alcohol-
induced blackout, he did not recall who had gone to the door
and beaten the Hedges, but Lee said that Rainey had told
him afterwards that he (Lee) had beaten the Hedges.1
Rainey agreed to testify against Lee, who proceeded to trial.
1
The transcript of Lee’s confession reads:
Q: You do, you do really think, do you really think in your
own mind that, that probably you were the one that went
to the door and hit the old people?
A: That is what [Rainey] told me, that I done it. So in my
mind that’s . . .
Q: But you don’t know (inaudible).
A: I don’t know that I didn’t and I don’t know that I did.
But, that’s what I’d been told by [Rainey] who was with
me. You know.
Q: And you really don’t know of any reason he would lie to
you about it.
A: Not really. I can’t think of any reason why he would tell
me I done it.
Appendix at 471.
No. 01-3152 3
At trial, Lee testified that he did remember the robbery,
and that he had been the one feigning injury while Rainey
approached the house. Lee’s earlier confession was admit-
ted over his objection that he had not intelligently waived
his Miranda rights. During closing arguments, the pros-
ecutor made concededly improper comments bolstering the
credibility of Rainey as a witness:2
But I submit to you that I believe Scott Rainey was
sincere. He was telling you the truth.
***
And it’s true that there’s charges against Mr. Lee for
more serious offenses. Why? Because the State of
Indiana believes Scott Rainey. We believe Scott Rainey.
Had the opportunity to sit down with Scott Rainey.
Talk to Scott Rainey. Listen to him as he testified
before you here. The State of Indiana believes Scott
Rainey. That’s why there’s no other charges pending
against him. He didn’t do it. Ted Lee did. Mr. Rainey
did not do it. He has to live with it. He has to live with
his involvement, but he did not do the crime.
Supp. App. at 12, 24; Tr. at 589, 601.3 Lee was convicted
by the jury and sentenced to 45 years imprisonment for
2
The prosecutor was disciplined by the Disciplinary Commission
of the Indiana Supreme Court with a Private Administrative
Admonishment (PAA) for his comments during closing arguments
at Lee’s trial. The PAA was issued on December 18, 1997, while
Lee’s state post-conviction relief case was pending in the trial
court. The Respondent (Davis) conceded in his brief for the
present case that the prosecutor’s statements constituted im-
proper vouching, but disputed that the vouching amounted to
prosecutorial misconduct. Resp. Br. at 9.
3
The transcript from Lee’s trial is designated with “Tr.” and the
appendix and supplemental appendix submitted with the appel-
lant’s brief with “App.” and “Supp. App.”, respectively.
4 No. 01-3152
attempted robbery and six years each for two counts of
felony battery, to run concurrently.
On direct appeal, Lee raised seven issues before the
Indiana Court of Appeals, but did not raise the issue of the
prosecutor’s improper statements. The court of appeals
reduced one of the battery convictions to a misdemeanor,
but otherwise affirmed the jury verdict. The Indiana
Supreme Court denied transfer in June 1995.
Subsequently, Lee filed a petition for post-conviction
relief in state court alleging prosecutorial misconduct
during closing arguments when the prosecutor vouched
for Rainey as a witness and ineffective assistance of trial
counsel when counsel failed to object to the prosecutor’s
vouching. Lee also alleged that appellate counsel had
rendered ineffective assistance by failing to raise prosecuto-
rial misconduct during Lee’s direct appeal. The trial court
denied Lee’s petition.
The Indiana Court of Appeals affirmed the denial of post-
conviction relief on Sept. 11, 2000. On the issue of prosecu-
torial misconduct, the court ruled that that issue had been
available on direct appeal, but because it had not been
raised at that time, it was waived.4 The Court of Appeals
further explained that it did not believe misconduct had
occurred.
[T]he statement following the prosecutor’s words “I
believe” explain why Rainey is more credible than Lee.
Even more compelling, the prosecutor’s comments had,
at most, a minimal effect on the jury given the over-
whelming evidence against Lee. In light of the mass
4
“We first note that [the issue of prosecutorial misconduct] was
available to Lee on direct appeal, and because he did not raise it,
it is waived. Waiver notwithstanding, Lee asserts that the
[vouching] amounts to fundamental error. It does not.” App. at 24.
No. 01-3152 5
of inculpating evidence, including Lee’s confession, Lee
has failed to show that the prosecutor engaged in
misconduct.
App. at 24. Because the Court of Appeals found no pros-
ecutorial misconduct, it also found that Lee’s trial counsel
had not been ineffective in failing to object to the pros-
ecutor’s statements, nor had appellate counsel5 been inef-
fective in failing to raise misconduct on Lee’s direct appeal.
The Indiana Supreme Court denied transfer.
Lee then filed an application for a writ of habeas corpus
in the district court under 28 U.S.C. § 2254, alleging, inter
alia, that his due process rights had been violated by the
prosecutor’s vouching for Rainey’s credibility and that he
was denied effective assistance of counsel at trial and on
appeal. The district court denied Lee’s petition and denied
an application for a certificate of appealability. This court
granted a certificate of appealability on the issues of (1)
whether Lee’s due process rights were violated when the
prosecutor vouched for Rainey’s credibility during clos-
ing arguments and (2) whether Lee procedurally de-
faulted this argument.
II.
A.
As a threshold matter, we must determine whether Lee
has procedurally defaulted his argument that the pros-
ecutor’s vouching violated Lee’s due process rights. A
district court’s determination of procedural default is
reviewed de novo. Braun v. Powell, 227 F.3d 908, 911-12
(7th Cir. 2000). When a state court denies a prisoner re-
5
Lee was represented by the same attorney at trial and on direct
appeal.
6 No. 01-3152
lief on a question of federal law and bases its decision on a
state procedural ground that is independent of the fed-
eral question, the federal question is procedurally de-
faulted. Coleman v. Thompson, 501 U.S. 722, 729 (1991);
Harris v. Reed, 489 U.S. 255, 263 (1989) (finding proce-
dural default when the “last state court rendering a judg-
ment in the case ‘clearly and expressly’ states that its
judgment rests on a state procedural bar”). This rule would
appear to govern the issue here. The Indiana Court of
Appeals was the last state court to consider Lee’s habeas
claim of prosecutorial misconduct, and it ruled quite clearly
that “this issue was available to Lee on direct appeal, and
because [Lee] did not raise it, it is waived.” App. at 24.
Lee’s contention that the court’s subsequent discussion
of the merits of his prosecutorial misconduct claim some-
how undoes the stated procedural ground of the decision
is meritless. Even when both the merits of a claim and
a state procedural bar are discussed together, the state
procedural grounds will be determinative if they are clear-
ly presented and they constitute an adequate independent
ground for the denial of the state habeas petition. Gray v.
Briley, 305 F.3d 777, 779 (7th Cir. 2002). Moreover, this
court has had occasion to consider the effect of Indiana’s
waiver doctrine, and the corresponding “fundamental error”
exception to the waiver doctrine, in the context of proce-
dural default as it affects a federal habeas petition.6 Willis
v. Aiken, 8 F.3d 556 (7th Cir. 1993). In Willis, we ruled that
the examination required to determine whether there had
been fundamental error did not undermine reliance on
6
An argument of trial court error that has been waived can be
resuscitated on appeal if the error was “fundamental” under
Indiana law. Wilson v. State, 514 N.E.2d 282, 284 (Ind. 1987). This
determination necessarily requires some examination of the
merits of the claimed error, thus creating the analytical wrinkle
smoothed out by this court in Willis.
No. 01-3152 7
an independent state procedural ground of waiver; and
federal habeas review was precluded. Id. at 567.
Lee’s prosecutorial misconduct argument is procedurally
defaulted.
B.
A procedural default can be overcome if a petitioner can
show cause and prejudice for the default. Todd v. Schomig,
283 F.3d 842, 848 (7th Cir. 2002). Lee argues that the
failure of his appellate counsel to raise the prosecutorial
misconduct issue on direct appeal was constitutionally
ineffective assistance and was the cause of his procedural
default. “Attorney error that constitutes ineffective assis-
tance of counsel is cause to set aside a procedural default.”
Franklin v. Gilmore, 188 F.3d 877, 883 (7th Cir. 1999);
see also Coleman, 501 U.S. at 753-54. Whether an attor-
ney’s ineffectiveness is sufficient to overcome a procedural
default is evaluated under the familiar constitutional
test outlined in Strickland v. Washington, 466 U.S. 668
(1984). Coleman, 501 U.S. at 752. Therefore, to make a
showing sufficient to establish cause for his procedural
default, Lee would have to demonstrate: (1) that his coun-
sel’s performance was so deficient as to fall below an
objective standard of reasonableness under “prevailing
professional norms”; and (2) that the deficient performance
so prejudiced the defense as to deny the defendant a fair
trial. Strickland, 466 U.S. at 687-88; see also Franklin, 188
F.3d at 883-84. The failure of appellate counsel to raise
an issue on appeal requires the court to compare the issue
not raised in relation to the issues that were raised; if
the issue that was not raised is “both obvious and clearly
stronger” than the issues raised, the appellate counsel’s
failure to raise the neglected issue is objectively deficient.
Winters v. Miller, 274 F.3d 1161, 1167 (7th Cir. 2001);
Williams v. Parke, 133 F.3d 971, 974 (7th Cir. 1997).
8 No. 01-3152
Prejudice is established if the issue not raised “may have
resulted in a reversal of the conviction or an order for a
new trial.” Winters, 274 F.3d at 1167. This means there
must be a reasonable probability that the issue not raised
would have altered the outcome of the appeal had it been
raised.
However, there is one preliminary puzzle we must
examine before we proceed. The Supreme Court’s decision
in Edwards v. Carpenter, 529 U.S. 446 (2000), established
that the assertion of ineffective assistance as a cause to
excuse a procedural default in a § 2254 petition is, itself, a
constitutional claim that must have been raised before the
state court or be procedurally defaulted. Id. at 453. The
result is a tangled web of defaults excused by causes
that may themselves be defaulted and require a showing
of cause and prejudice—a result that has an “attractive
power for those who like difficult puzzles[,]” but not for
prisoners seeking federal post-conviction relief. Id. at 458
(Breyer, J., concurring). Lee does not face that particu-
lar dilemma since he raised his ineffective assistance of
counsel claim in his very first state post-conviction petition.
But let us presume, as is the case here with Lee, that a
petitioner does pass the Edwards test, and offers up
ineffective assistance of counsel as cause for his procedural
default, and that an ineffective assistance of counsel claim
was presented as an independent claim in state court
and was ruled upon on the merits. Edwards does not
instruct us whether we must evaluate the ineffective
assistance of counsel claim with the same deference for
the state court’s determination (under § 2254(d)) that we
would utilize in evaluating the actual habeas petition’s
claim (here, prosecutorial misconduct), or that we would
utilize if the ineffective assistance claim had been presented
as the subject of a habeas petition instead of as cause for
default. In other words, does the same claim of ineffective
assistance of counsel get reviewed differently when pre-
No. 01-3152 9
sented merely as cause for a procedural default as opposed
to being presented in a petition as the basis in the first
instance for habeas relief? This is a question that has not
yet been answered in this court, and appears to have
been clearly addressed by only two district courts that
we can find, with each one answering differently. Compare
Orbe v. True, 233 F. Supp.2d 749, 760 (E.D. Va. 2002) (“In
the end, then, [petitioner’s] ineffective assistance claims
asserted as cause to excuse default were decided on the
merits by the Supreme Court of Virginia, and thus must
be reviewed deferentially pursuant to § 2254(d).”), with
Holloway v. Horn, 161 F. Supp.2d 452, 478 n.12 (E.D. Pa.
2001), and Holland v. Horn, 150 F. Supp.2d 706, 747 (E.D.
Pa. 2001) (both finding that ineffective assistance of coun-
sel as a cause for procedural default is not reviewed under
the deferential standard of § 2254(d)). We do not believe
that this question must be answered in the present case
because regardless whether we review Lee’s ineffective
assistance claim de novo or deferentially, our answer is
still the same: there was no ineffective assistance of ap-
pellate counsel because Lee cannot show prejudice.
Even assuming that it was objectively deficient for Lee’s
appellate counsel to fail to raise prosecutorial misconduct
on direct appeal, there was no reasonable probability
that the outcome of the appeal would have been different
had the misconduct issue been raised. If the misconduct
issue had been raised on direct appeal, the lack of a con-
temporaneous objection to the prosecutor’s improper state-
ments would have meant the issue was waived under
Indiana law. See Benson v. State, 762 N.E.2d 748, 755-56
(Ind. 2002) (“A claim of prosecutorial misconduct is waived
if there is no contemporaneous objection.”). Waiver can be
overcome, however, if the claimed error satisfies Indi-
ana’s fundamental error exception. See Etienne v. State,
716 N.E.2d 457, 461-62 (Ind. 1999). The fundamental error
exception is a narrow one requiring that the error be
10 No. 01-3152
blatant and result in a great and undeniable harm to the
defendant. See Benson, 762 N.E.2d at 755 (finding that
fundamental error “must constitute a blatant violation of
basic principles, the harm or potential for harm must be
substantial, and the resulting error must deny the defen-
dant fundamental due process”) (quotations omitted); Ford
v. State, 704 N.E.2d 457, 461 (Ind. 1998) (“This Court
views the fundamental error exception to the waiver rule
as an extremely narrow one, available only when the rec-
ord reveals clearly blatant violations of basic and elemen-
tary principles of due process, and the harm or potential
for harm cannot be denied.”) (quotations omitted). The
“harm” in question is obviously not the resulting convic-
tion (or all errors made in trials where convictions resulted
would be “fundamental”), but rather the “denial of proce-
dural opportunities for the ascertainment of truth to
which he otherwise would have been entitled.” Townsend
v. State, 632 N.E.2d 727, 730 (Ind. 1994). For alleged
prosecutorial misconduct to be fundamental error, the
improper statements must have subjected the defendant
to “grave peril” and “had a probable persuasive effect on
the jury’s decision.” Carter v. State, 686 N.E.2d 1254, 1262
(Ind. 1997).
We do not believe that, in the final analysis, the improp-
er statements by the prosecutor subjected Lee to grave
peril nor did they have a probable persuasive effect on the
jury’s decision. The first statement by the prosecutor was
de minimis, and the second statement, while longer, was
made in the context of rebutting Lee’s assertion in closing
arguments that Rainey had been given a deal for his
testimony. The prosecution was explaining that there
was no deal, but rather that Rainey had been charged
only with one crime because the prosecutor believed that
Rainey had committed only that one crime. The statements
were improper, but they did not subject Lee to grave peril
nor did they have a probable persuasive effect on the jury.
No. 01-3152 11
Additionally, the jury did have Lee’s own taped confes-
sion before it as evidence of his guilt. If Lee’s attorney
had raised prosecutorial misconduct on direct appeal, the
Indiana Court of Appeals would likely have found no
fundamental error and considered the argument waived.
Therefore, there is no reasonable probability that the
outcome of Lee’s direct appeal would have been different
had the issue been raised, and, therefore, the decision not
to raise the issue on direct appeal was not ineffective
assistance of counsel. Because there was no ineffective
assistance of appellate counsel, there is no cause to excuse
the procedural default of the prosecutorial misconduct
issue. Lee’s petition was properly denied.
III.
For the foregoing reasons, the district court’s denial of
Lee’s § 2254 petition is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-25-03