In the
United States Court of Appeals
For the Seventh Circuit
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No. 03-3074
CLARENCE HAYES,
Petitioner-Appellant,
v.
DEIRDRE BATTAGLIA, Warden,
Stateville Correctional Center,
Respondent-Appellee.
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Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 98 C 6813—Joan B. Gottschall, Judge.
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ARGUED JANUARY 12, 2005—DECIDED APRIL 13, 2005
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Before FLAUM, Chief Judge, and EASTERBROOK and WOOD,
Circuit Judges.
EASTERBROOK, Circuit Judge. In this collateral attack
under 28 U.S.C. §2254, Clarence Hayes, serving a life sen-
tence for murder, contends that his lawyer during the state
proceedings furnished ineffective assistance. He also con-
tends that the state courts made several errors that justify
relief. The district court held that the ineffective-assistance
claim had been defaulted when Hayes failed to present it to
the state’s appellate courts, either on direct appeal or on
2 No. 03-3074
collateral review, that Hayes is not entitled to relief from
that forfeiture, and that the other events of which he com-
plains, if errors at all, were harmless. Hayes v. Carter, 2003
U.S. Dist. LEXIS 8650 (N.D. Ill. May 22, 2003).
After church one Sunday, Ronald and Marion Nelson, their
son Roger, and Roger’s fiancée Sandra Wissink walked
across the street toward their cars, parked in the church’s
lot. They were intercepted by a man with a gun, who or-
dered all four into Ronald Nelson’s car and robbed them of
their valuables. Five minutes later Donna Van Zanten (the
pastor’s wife) and her son Kent emerged from the church
and made for the parking lot. The robber set upon them too.
After another five minutes or so the robber left—but not
before shooting Ronald, who died from the wound. Four of
the five survivors, who had seen the assailant in broad
daylight at close quarters for between five and ten minutes,
identified Hayes in a lineup and at trial. (Marion Nelson
did not testify; the papers filed in this court do not reveal
why.) As he left, the robber (still clutching the women’s
purses) encountered Larry Stewart and Harold Smith, who
had heard the gunshot. The fleeing man said to them, as he
passed, “You brothers, you be cool because you know them
was honkies over there.” Stewart and Smith, who heard
Roger shout that the man on the run had just “shot my
Dad,” were not “cool”; they identified Hayes at a lineup and
again at trial. That made six eyewitnesses—five, if one
discounts for the fact that Smith did not pick Hayes out of
a photo array until being coached by Stewart. The jury
evidently found their testimony convincing.
Hayes says that his lawyer butchered the defense by fail-
ing to call as alibi witnesses six of Hayes’s relatives who
would have testified that he had been home watching a
basketball game when the crime was committed. We don’t
know why the lawyer decided not to call these witnesses,
because Hayes failed to develop this subject. He raised the
subject in the circuit court on collateral review but did not
No. 03-3074 3
supply details (such as affidavits from his relatives and
his former lawyer), and then did not mention it on appeal.
Instead he argued that his post-conviction counsel in the
circuit court had been ineffective (a contention now aban-
doned). That kind of procedural default blocks federal
review; indeed, even if Hayes had presented the point to the
appellate court it still would have been forfeited by omis-
sion from a request for review by the Supreme Court of
Illinois. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999).
In his opening brief in this court, Hayes contended that
Massaro v. United States, 538 U.S. 500 (2003), relieves him
from that default. It does nothing of the kind. Massaro
holds that a defendant in a federal criminal prosecution need
not raise a claim of ineffective-assistance on direct appeal
but always may reserve it for a collateral proceeding under
28 U.S.C. §2255. This is a rule of practice for federal judges
in federal criminal cases and does not change the relation
between state and federal courts. See Gomez v. Jaimet, 350
F.3d 673, 678 (7th Cir. 2003); Sweet v. Bennett, 353 F.3d 135,
140-41 (2d Cir. 2003). What is more, even if Massaro were
to be applied to proceedings under §2254, it would not per-
mit the defendant to omit the ineffective-assistance claim
from both direct and collateral review in state court.
This case shows why. By withholding the contention from
the state judiciary, Hayes not only deprived it of an oppor-
tunity to address the claim (and repair any problem) but
also left us with an essentially empty record. We have his
allegations but none of the details from the potential
witnesses and from his former lawyer that could have put
these allegations to the test. Because the shortfall is Hayes’s
fault, he could not receive a federal evidentiary hearing
under 28 U.S.C. §2254(e). For all we can tell, Hayes asked
his trial lawyer not to call the alibi witnesses. Or maybe
after interviewing the witnesses counsel concluded that the
jurors would see through a story that evinced family
solidarity but lacked the ring of truth. Cf. Nix v. Whiteside,
4 No. 03-3074
475 U.S. 157 (1986) (sixth amendment does not require
counsel to present false exculpatory testimony). Maybe a full
record would vindicate Hayes’s position that counsel was
sleepwalking, but a full record is exactly what we lack—
and we lack it because of Hayes’s own litigation choices. See
Howard v. O’Sullivan, 185 F.3d 721, 724-26 (7th Cir. 1999);
Kokoraleis v. Gilmore, 131 F.3d 692, 696 (7th Cir. 1997).
This conclusion, which Hayes essentially conceded by
the time of his reply brief, drives him to contend that the
default should be excused to avoid a “fundamental miscar-
riage of justice”—which is to say, the conviction of an in-
nocent person. Factual innocence indeed relieves a petitioner
of a procedural default, at least when the error affects the
finding of guilt, as opposed to a non-capital sentence. Com-
pare 28 U.S.C. §2254(e)(2)(B) and Murray v. Carrier, 477
U.S. 478, 496 (1986), with Dretke v. Haley, 541 U.S. 386
(2004). Yet how could we conclude, in the statutory lan-
guage, that “the facts underlying the claim . . . establish by
clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the appli-
cant guilty of the underlying offense”? Suppose that the six
alibi witnesses had been called. That would at best have
produced a draw: six eyewitnesses identify Hayes as the
culprit, six others exculpate him. That cannot establish that
“no reasonable factfinder would have found the applicant
guilty of the underlying offense”; it is black letter law that
testimony of a single eyewitness suffices for conviction even
if 20 bishops testify that the eyewitness is a liar. Cf. Branion
v. Gramly, 855 F.2d 1256 (7th Cir. 1988).
On Hayes’s view a “miscarriage of justice” occurs when-
ever a better lawyer might have created a reasonable doubt
in one juror’s mind. That can’t be enough (and under the
statute isn’t enough); if it were, then every claim of inef-
fective assistance would show “miscarriage of justice” and
the rules of procedural default would be hollow, for to show
ineffective assistance on the merits the petitioner must
No. 03-3074 5
establish that the lawyer’s blunders could have altered the
outcome. That’s the prejudice component of Strickland v.
Washington, 466 U.S. 668 (1984). Proof of innocence must
be considerably more than the proof required to establish
prejudice. See Schlup v. Delo, 513 U.S. 298, 327 (1995);
Dunham v. Thomas, 313 F.3d 724, 730 (2d Cir. 2002).
To demonstrate innocence so convincingly that no reason-
able jury could convict, a prisoner must have documentary,
biological (DNA), or other powerful evidence: perhaps some
non-relative who placed him out of the city, with credit card
slips, photographs, and phone logs to back up the claim. See
Schlup, 513 U.S. at 324. Hayes reminds us that eyewitnesses
err all too frequently and that jurors often give this kind of
evidence more weight than it deserves, but he was convicted
on the testimony of six eyewitnesses. The risk that all six
independently made the same mistake is slight. Cf.
Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003) (discuss-
ing probability of multiple, independent misidentification).
If because of the coaching there were only five independent
identifications, still the probability that they made the same
error is small—considerably smaller, one would think, than
the likelihood that Hayes’s family was willing to commit
perjury to save him from capital punishment. (Hayes
originally was sentenced to death, but the Supreme Court
of Illinois reduced the sentence to life imprisonment. People
v. Hayes, 139 Ill. 2d 89, 564 N.E.2d 803 (1990).) Either
family solidarity or threats of harm could produce false alibi
testimony, given how rarely prosecutors bring perjury
charges against defense witnesses.
Let us turn, then, to the allegations of constitutional error
at trial. The first two are not available on federal collateral
review. Hayes contends that his arrest violated the fourth
amendment and that two items of evidence should have
been suppressed as a result: the arrest warrant and the
lineup identifications, which he describes as fruits of the
wrongful arrest. But Stone v. Powell, 428 U.S. 465 (1976),
6 No. 03-3074
holds that federal courts hearing collateral attacks under
§2254 may not enforce the exclusionary rule unless the
state judiciary denied the defendant a full and fair opportu-
nity to contest the search or seizure. See also Hampton v.
Wyant, 296 F.3d 560 (7th Cir. 2002). Hayes does not
contend that Illinois withheld a full and fair opportunity to
litigate his arguments based on the fourth amendment; he
simply asks us to disagree with the state courts’ decision, a
path that Stone closes.
His third claim of trial error is that the jury should not
have learned that it took two weeks to apprehend him. A
detective went to Hayes’s home and asked a family member
(with whom he left his card) to have Hayes give him a call.
Unsurprisingly, Hayes did not call. Instead he went mis-
sing. He stopped visiting his home. Two weeks later, during
a stakeout of a currency exchange that Hayes was known to
frequent, he was seen and arrested. This sequence could
have been the basis for an inference that flight evinces
consciousness of guilt. Because the prosecutor did not make
such an argument, however, Hayes now insists that the evi-
dence should not have been admitted. This sounds like a
complaint that the prosecutor did not use all of his weap-
ons; how did that injure Hayes? Perhaps because the jurors
would draw the inference without the need for argument?
But it would have been a sound inference; there is no
problem under the federal Constitution, and if (as Hayes
insists) the evidence should have been excluded as a matter
of Illinois law that is none of our concern. See Estelle v.
McGuire, 502 U.S. 62 (1991). Section 2254 is not a means to
enforce rules of state law.
Finally, Hayes contends that the prosecutor’s comments
about the Nelson family were unfairly prejudicial. Hayes
says that the jury should not have been told that Ronald
was a college professor with a doctorate and that Roger is
an ordained minister who had been in a seminary at the
time of the crimes. The single paragraph devoted to this is-
No. 03-3074 7
sue in Hayes’s brief does not even try to explain why the
Constitution prevents a jury from knowing these things; we
cannot imagine why it would. The Supreme Court of Illinois
deemed the prosecutor’s comments improper under state
law but also found the error to be harmless. 564 N.E.2d at
826. There is no basis of relief in this collateral proceeding.
AFFIRMED
FLAUM, Chief Judge, concurring. I join in the Court’s
opinion as to each of petitioner’s claims. While I agree that
Hayes has not demonstrated that a “miscarriage of justice”
will occur if the procedural default of his ineffective assis-
tance of counsel claim is not excused, I comment separately
to underscore what I understand to be the basis of this
holding.
Section 2254(e) permits an evidentiary hearing in federal
court on a defaulted claim if the facts underlying the claim
would be sufficient to establish that but for the alleged
constitutional error, “no reasonable factfinder would have
found the applicant guilty of the underlying offense.” A
court may consider any relevant evidence in making this
determination. See Schlup v. Delo, 513 U.S. 298, 327-28
(1995) (“In assessing the adequacy of petitioner’s showing . . .
the district court is not bound by the rules of admissibility
that would govern at trial. . . . The habeas court must make
its determination concerning the petitioner’s innocence in
light of all the evidence.”) (internal quotations omitted).
In support of his petition, Hayes presented the grand jury
testimony of six family members. Although each testified to
seeing Hayes at home near the time of the crime, none
8 No. 03-3074
could attest to being in his presence continuously during
the relevant period. Hayes did not offer any witness
affidavits stating that he could not have left the house dur-
ing this time or any other evidence that might support a
complete alibi defense. The evidence presented simply was
insufficient to satisfy petitioner’s burden of establishing
that no reasonable factfinder would have found him guilty.
This is not to suggest that eyewitness testimony can never
satisfy the “miscarriage of justice” standard. In Schlup, the
Supreme Court noted that “trustworthy eyewitness accounts”
may be enough. 513 U.S. at 324. There, the petitioner
presented favorable affidavits of prison inmates who had
witnessed the offense of conviction and a former prison
lieutenant who had observed the petitioner’s demeanor near
the time of the crime. Even though there was some reason
to doubt the credibility of these witnesses, and their affi-
davits were contradicted by the trial testimony of other
eyewitnesses, the Court remanded the case for reconsidera-
tion by the district court.
The majority observes that “it is black letter law that tes-
timony of a single eyewitness suffices for conviction even if
20 bishops testify that the eyewitness is a liar.” Nonethe-
less, the mere existence of sufficient evidence to convict is
not determinative of an actual innocence claim. Schlup, 513
U.S. at 330. Unlike a review of the sufficiency of the evi-
dence which focuses on whether a rational juror could have
convicted, a habeas court considering actual innocence may
weigh any new evidence against that which was presented
at trial and even make credibility assessments in determin-
ing whether rational jurors would have convicted. Id. I do
not understand our decision today to disturb this estab-
lished law or to categorically preclude relief from procedural
default where an actual innocence claim is based solely on
new eyewitness evidence. Although documentary or biologi-
cal evidence may carry more weight in some cases, a peti-
tioner’s burden may be satisfied with other types of evi-
dence as well.
No. 03-3074 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-13-05