NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2009*
Decided May 21, 2009
Before
WILLIAM J. BAUER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 08‐2780
JERMAINE McFARLAND, Appeal from the United States District
Petitioner‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 07‐C‐1134
JODINE DEPPISCH, William C. Griesbach,
Respondent‐Appellee. Judge.
O R D E R
Nearly ten years ago Illeana McNeal‐Veasley was shot multiple times when she
answered a knock at her door. She survived and identified Jermain McFarland as her
attacker, an identification another eyewitness substantiated. A Wisconsin jury found
McFarland guilty of reckless injury with a dangerous weapon, discharging a firearm into a
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See
Fed. R. App. P. 34(a)(2).
No. 08‐2780 Page 2
building, and possession of a firearm by a felon. The trial court sentenced McFarland, an
habitual offender, to 37 years’ imprisonment. After exhausting his state‐court remedies,
McFarland petitioned under 28 U.S.C. § 2254 for a writ of habeas corpus. The district court
denied McFarland’s petition but issued a certificate of appealability limited to his claim that
trial counsel was constitutionally ineffective. We conclude that the district court properly
rejected this claim and, accordingly, affirm the judgment.
Around 2:00 a.m. on October 10, 1999, a man knocked on the front door of McNeal‐
Veasley’s apartment building and fired multiple gunshots through the door when she
peered out to see who was there. McNeal‐Veasley was shot several times, including in the
head and neck, and was left permanently disabled. She was rushed to the hospital where,
unable to speak, she scrawled the letter “J” on a piece of paper when asked who shot her.
At trial, McNeal‐Veasley identified McFarland as “J,” whom she knew as “J‐Money.”
She testified that she was introduced to J‐Money by his cousin, Rochelle Ray, about four
months before the shooting. After they met she slept with J‐Money in exchange for crack on
a handful of occasions, but she had ended the relationship shortly before the shooting.
When she was awakened by the knock on the door, she said, she asked who it was and a
man replied, “It’s J‐Money.” McNeal‐Veasley descended the stairs from her apartment to
the front door of the two‐unit building and pulled the curtain aside from the window.
Through the window she saw McFarland holding a gun. He then shot her. At that time
McNeal‐Veasley still did not know J‐Money’s real name, but she knew his sister’s address
and gave that information to police. Investigators linked the address to McFarland, whom
McNeal‐Veasley picked out of a photo array. At trial she testified that she had “no doubt”
that McFarland was the man who shot her.
Jeremy Glosson, a neighbor, confirmed the identification. Glosson lived across the
street from McNeal‐Veasley and testified at trial that he was sitting on his porch and got a
clear view of the shooting. About a week before the attack he had seen McFarland walking
in the neighborhood with Rochelle Ray, but at the time he did not know McFarland’s name.
Glosson added that Ray later told him she knew the shooter’s identity, and had boasted that
McNeal‐Veasley was shot for burglarizing her house and for giving McFarland a venereal
disease. During the investigation Glosson too had selected McFarland’s picture from a
photo array, and at trial he confidently identified McFarland as the assailant.
McFarland testified in his own defense. He denied shooting McNeal‐Veasley and
insisted that he was at his sister’s house babysitting that night. McFarland’s sister, Malinda
McFarland, and her friend, Sheila Redding, both offered alibi testimony. Malinda
McFarland testified that she and Redding went to a movie with their dates while McFarland
stayed home to watch her children. She said that she stopped at her house after the movie
No. 08‐2780 Page 3
to check on the kids and McFarland was still there. She then went to a bar with her friends
and did not return home until about 2:00 a.m. McFarland, she said, was asleep on the
couch. Redding mostly confirmed this account, though she testified that they left the bar
between midnight and 1:00 a.m.
The district court screened the § 2254 petition and allowed McFarland to proceed on
two claims: that Glosson’s testimony about Ray’s out‐of‐court statements violated the Sixth
Amendment right to confrontation, and that trial counsel was ineffective because he did not
block the admission of Ray’s statements or use impeachment evidence more aggressively
when cross‐examining McNeal‐Veasley and Glosson. The district court agreed with the
state, however, that McFarland had procedurally defaulted his ineffective‐assistance claim
to the extent that it rests on trial counsel’s impeachment of McNeal‐Veasley and Glosson.
On the other hand, the district court rejected the state’s insistence that the Wisconsin courts
had correctly concluded that Ray’s out‐of‐court statements were offered for a nonhearsay
use that did not run afoul of the Confrontation Clause. In the end, though, the district court
accepted the state’s contention that McFarland could not have been prejudiced by the
admission of Ray’s statements, or by counsel’s failure to object on confrontation grounds,
because the evidence of guilt was overwhelming.
On appeal McFarland tries to revive a number of the claims in his § 2254 petition,
but our review is limited by the scope of the certificate of appealability, see 28 U.S.C.
§ 2253(c); West v. Schneiter, 485 F.3d 393, 394 (7th Cir. 2007); Williams v. Parke, 133 F.3d 971,
975 (7th Cir. 1997), which we decline to expand, see Watson v. Hulick, 481 F.3d 537, 543 (7th
Cir. 2007); Rodriguez v. United States, 286 F.3d 972, 978 (7th Cir. 2002). We thus consider only
the the ineffective assistance claim authorized by that certificate. And as far as that claim,
McFarland does not challenge in his opening brief the district court’s conclusion that he
procedurally defaulted his theory that counsel did not do enough to impeach McNeal‐
Veasley and Glosson. That theory is, accordingly, waived, see Faas v. Sears, Roebuck & Co.,
532 F.3d 633, 641 (7th Cir. 2008), and all that remains is McFarland’s contention that the
district court wrongly rejected his theory that trial counsel rendered ineffective assistance by
not stopping the admission of Ray’s out‐of‐court statements.
For McFarland to prevail this theory, he must establish both (1) that counselʹs
performance was objectively unreasonable and (2) that he suffered prejudice as a result. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Watson v. Anglin, 560 F.3d 687, 690 (7th Cir.
2009). Like the district court, we may assume that Ray’s statements should have been
excluded as inadmissible hearsay, but McFarland’s theory of ineffective assistance still must
fail because he was not prejudiced by those statements. We review the question of
prejudice de novo because the Wisconsin courts never addressed this issue in denying state‐
postconviction relief. See 28 U.S.C. § 2243, Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008).
No. 08‐2780 Page 4
McFarland was not prejudiced unless there is a reasonable probability that he would
have been acquitted without the admission of Ray’s out‐of‐court statements. See Strickland,
466 US. at 694; Gross v. Knight, 560 F.3d 668, 671 (7th Cir. 2009). But there is no chance that
the outcome of this trial would have been different because the evidence against McFarland
was overwhelming. Two eyewitnesses identified McFarland as the shooter; both witnesses
knew him from the neighborhood, their stories matched up, and both had been able to
identify him from a photo array before trial. See Allen v. Chandler, 555 F.3d 596, 602‐03 (7th
Cir. 2009) (explaining that state court had reasonably applied Strickland in holding that
testimony of single eyewitness who had seen defendant on previous occasions constituted
overwhelming evidence that rendered attorney’s error not prejudicial); Eckstein v. Kingston,
460 F.3d 844, 849‐50 (7th Cir. 2006) (explaining that state court had reasonably applied
Strickland in holding that counsel’s failure to impeach witness’s credibility was not
prejudicial where two recorded conversations irrefutably established that defendant had
hired man to kill his wife). Indeed McNeal‐Veasley had just ended a four‐month
relationship with McFarland, so there was little, if any, chance of misidentification. See
Taylor v. Bradley, 448 F.3d 942, 950 (7th Cir. 2006) (explaining that state court had reasonably
applied Strickland in holding that two eyewitness identifications, by individuals previously
acquainted with the defendant, qualified as overwhelming evidence of guilt); see also United
States v. Recendiz, 557 F.3d 511, 526 (7th Cir. 2009) (noting that prior association between
witness and defendant was factor supporting reliability of witness’s in‐court identification);
compare United States v. Brown, 471 F.3d 802, 804 (7th Cir. 2006) (observing that risk of
misidentification is “uncomfortably high” if encounter involved a stranger and was brief).
Thus, we cannot conclude that the admission of Ray’s isolated statements prejudiced
McFarland in any way.
Therefore, the district court properly denied McFarland’s § 2254 petition, and the
judgment is AFFIRMED.