NONPRECEDENTIAL DISPOSITION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
Argued November 18, 2009
Decided January 5, 2010
Before
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐2713
CHRISTOPHER McDONALD, Appeal from the United States District
Petitioner‐Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 05 C 820
MARCUS HARDY,
Respondent‐Appellee. James F. Holderman,
Chief Judge.
O R D E R
Illinois prisoner Christopher McDonald is serving a fifty‐year sentence for first‐
degree murder and related crimes he insists he committed in self‐defense. After exhausting
his state remedies, McDonald filed a petition for a writ of habeas corpus in the district court.
See 28 U.S.C. § 2254. The court denied the petition but granted a certificate of appealability
on McDonald’s claims that he received ineffective assistance of counsel and was harmed by
a series of witness‐appearance‐bond hearings held by the trial court without his knowledge.
We affirm the district court’s denial of McDonald’s petition.
No. 08‐2713 Page 2
I. Background
The facts before us are sparse and originate in the Illinois appellate court’s decisions
on McDonald’s direct appeal and petition for postconviction relief. See People v. McDonald,
749 N.E.2d 1066 (Ill. App. Ct. 2001); People v. McDonald, No. 3‐02‐0650 (Ill. App. Ct. Aug. 29,
2003) (unpublished). In February 1999, Derrick Gholston, Lucias Byes, and Courtney Ward
rode together in a stolen car with John Gholston at the wheel. As they parked the car,
McDonald approached, and an argument ensued. John Gholston got out of the car, and
McDonald shot him fatally in the chest and fired at the three men still inside. Ward fled the
vehicle unharmed, but the other two passengers were wounded.
After McDonald was indicted, the state petitioned the court for material‐witness
appearance bonds for Byes and Ward, stating that both men feared for their safety and that
Byes planned to leave the area. See 725 ILCS 5/109‐3(d) (permitting judge to require any
material witness in criminal prosecution to agree in writing to appear at trial and provide
for bond forfeiture if witness does not appear). The state also sought an appearance bond
for a third potential witness whom McDonald allegedly told about the shooting when the
men were incarcerated together at the county jail. Each petition reported that Derrick
Gholston, the third passenger, had since been shot and killed, and that the homicide was
still under investigation. Without notifying McDonald, the judge conducted ex parte
hearings on the petitions and granted all three, setting a $100,000 recognizance bond for
each witness. When McDonald learned about the hearings, he moved to have the
indictment dismissed, but his motion was denied.
At trial McDonald testified that he had acted in self‐defense, and the court thus gave
McDonald the option to have the jury instructed on the lesser‐included offense of second‐
degree murder. In Illinois a defendant is guilty of second‐degree murder when he commits
first‐degree murder and “[a]t the time of the killing he believes the circumstances to be such
that, if they existed, would justify or exonerate the killing” but “his belief is unreasonable.”
720 ILCS 5/9‐2(a)(2). McDonald declined to offer the instruction, so the jury was instructed
only on first‐degree murder, which encompasses both intentional homicide and homicide
arising from acts that the defendant knows “create a strong probability of death or great
bodily harm” to the victim. 720 ILCS 5/9‐1(a). The jury convicted McDonald of the latter, as
well as unlawful use of a weapon by a felon, two counts of aggravated battery with a
firearm, and aggravated discharge of a firearm. The judge sentenced him to concurrent
terms of 30 years for first‐degree murder, 10 years for aggravated discharge of a firearm,
and 5 years for unlawful use of a weapon by a felon. He was also sentenced to consecutive
terms of 10 years for each of his two convictions for aggravated battery with a firearm,
producing an aggregate sentence of 50 years’ imprisonment.
No. 08‐2713 Page 3
On direct appeal McDonald argued, among other things, that his rights to due
process and a fair trial were violated when the court held ex parte hearings on the material‐
witness appearance bonds. He asserted that the ex parte hearings allowed the prosecution
to present “inflammatory” allegations to the trial court insinuating that McDonald was
responsible for Derrick Gholston’s death; these allegations so biased the judge against him,
he argued, that he effectively was prevented from choosing a bench trial. The Illinois
appellate court found that “it was clear error” for the trial court not to have notified
McDonald of the hearings but concluded that the error was harmless. The state supreme
court denied review.
McDonald then filed a pro se postconviction petition arguing, among other things,
that his trial counsel was ineffective because he had failed to inform McDonald that his
eligibility for good‐time credit would differ depending on whether he was convicted of
first‐ or second‐degree murder. In Illinois a defendant convicted of first‐degree murder is
ineligible for good‐time credit, whereas a defendant convicted of second‐degree murder
receives one day of good‐time credit for each day served. 730 ILCS 5/3‐6‐3(a)(2), (2.1). If he
had known this, McDonald asserted, he would have requested a jury instruction on second‐
degree murder. The trial court dismissed the petition as frivolous, and the state appellate
court affirmed, concluding that eligibility for good‐time credit was collateral to McDonald’s
conviction and that his lawyer therefore did not have a duty to explain it to him. The state
supreme court denied leave to appeal.
McDonald then petitioned the federal district court for a writ of habeas corpus. See
28 U.S.C. § 2254. The district court denied the petition but granted a certificate of
appealability on McDonald’s claims that (1) his trial counsel rendered ineffective assistance
in advising him to decline a jury instruction on second‐degree murder without informing
him of the potential good‐time consequences of his decision and (2) his constitutional rights
were violated when the trial court held ex parte hearings on the material‐witness
appearance bonds.
II. Analysis
We review de novo the district court’s denial of McDonald’s petition for a writ of
habeas corpus. See Emerson v. Shaw, 575 F.3d 680, 685 (7th Cir. 2009). Our review is
governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which
constrains us from disturbing a state court’s decision unless it is “contrary to” or “an
unreasonable application of” clearly established federal law as determined by the Supreme
Court. 28 U.S.C. § 2254(d)(1); Williams v. Thurmer, 561 F.3d 740, 742 (7th Cir. 2009).
No. 08‐2713 Page 4
A. Ineffective Assistance of Counsel
McDonald argues that the state court’s decision on his ineffective‐assistance‐of‐
counsel claim was an unreasonable application of Strickland v. Washington, 466 U.S. 668
(1984). Under Strickland, a defendant must show that his attorney’s representation fell
below an objective standard of reasonableness and that there is a reasonable probability that
counsel’s errors affected the outcome of the proceedings. 466 U.S. at 687‐88 (1984); Gonzales
v. Mize, 565 F.3d 373, 381 (7th Cir. 2009). To establish that the state appellate court
unreasonably applied Strickland, McDonald must demonstrate that the court’s decision was
not only wrong but was objectively unreasonable. See Bell v. Cone, 535 U.S. 685, 698‐99
(2002); Emerson, 575 F.3d at 685. This burden is high: A state court’s decision is objectively
unreasonable only when it falls “well outside the boundaries of permissible differences of
opinion.” Starkweather v. Smith, 574 F.3d 399, 402 (7th Cir. 2009) (internal quotation marks
and citation omitted). When the constitutional standard in question is flexible, as it is under
Strickland, we must deny relief if we conclude that the state appellate court “took the
constitutional standard seriously and produced an answer within the range of defensible
positions.” Mendiola v. Schomig, 224 F.3d 589, 591 (7th Cir. 2000).
McDonald argues that counsel was ineffective for advising him to give the jury only
two options—first‐degree murder and acquittal—without fully explaining the potential
sentencing consequences of this strategy. First‐degree murder in Illinois carries a sentence
of 20 years to life imprisonment, with no eligibility for good‐time credit. See 730 ILCS
5/5‐4.5‐20(a); 730 ILCS 5/3‐6‐3(a)(2)(i). But second‐degree murder can be punished by, at
most, 20 years’ imprisonment, 730 ILCS 5/5‐4.5‐30(a), and, because a defendant convicted of
second‐degree murder presumptively receives day‐for‐day good‐time credit, the maximum
amount of time he will serve (if none of his good‐time credit is revoked) is 10 years.
Although instructing the jury on second‐degree murder would have all but eliminated any
chance of acquittal, McDonald insists that he would not have chosen the all‐or‐nothing
strategy recommended by his attorney if he had known about the good‐time consequences
of his decision.
In addressing McDonald’s claim that his attorney’s performance was deficient, the
state appellate court began by identifying the proper two‐step inquiry for a claim of
ineffective assistance of counsel. The court then analogized a defendant’s decision to tender
a lesser‐included‐offense jury instruction to the decision to plead guilty to a reduced charge,
see People v. Brocksmith, 642 N.E.2d 1230, 1232 (Ill. 1994) (concluding that, like decision to
plead guilty to lesser charge, decision to submit jury instruction on lesser charge is for
defendant, not counsel, to make), and explained that an attorney is not ineffective for failing
to advise his client of the collateral consequences of a guilty plea. And good‐time credit, the
court reasoned, is a collateral consequence of a plea because “there is no assurance” that the
No. 08‐2713 Page 5
defendant will receive it. The same conclusion had already been reached at least twice by
the state appellate court, People v. Maury, 678 N.E.2d 30, 33 (Ill. App. Ct. 1997); People v.
Menke, 390 N.E.2d 441, 443‐44 (Ill. App. Ct. 1979), and has since been affirmed at least twice
more, People v. Stewart, 887 N.E.2d 461, 465 (Ill. App. Ct. 2008); People v. Frison, 851 N.E.2d
890, 893 (Ill. App. Ct. 2006). The court thus concluded that McDonald’s counsel was not
ineffective for failing to advise him of the potential good‐time consequences of foregoing a
jury instruction on second‐degree murder. The court never addressed the separate question
whether McDonald was prejudiced by counsel’s alleged shortcoming.
On appeal, McDonald’s primary challenge to the state court’s adjudication of his
ineffective‐assistance claim is that the court unreasonably concluded that good‐time credit
in Illinois is a collateral consequence of a conviction. He contends that good‐time credit is a
direct consequence—and thus his attorney was obligated to discuss it with him—because
state law provides that prisoners convicted of certain offenses, including second‐degree
murder, “shall receive one day of good conduct credit for each day” of imprisonment, 730
ILCS 5/3‐6‐3(a)(2.1) (emphasis added), which can only be revoked after a formal
administrative proceeding, 730 ILCS 5/3‐6‐3(c). McDonald contrasts this presumptive
entitlement to day‐for‐day credit with the federal good‐time scheme, under which a
prisoner receives good‐time credit only after the Bureau of Prisons concludes that the
prisoner complied with institutional disciplinary regulations during the preceding year. See
18 U.S.C. § 3624(b)(1). As further evidence that good‐time credit is a direct consequence of a
conviction in Illinois, McDonald points out that state courts are permitted to consider a
defendant’s presumptive good‐time credit when determining his sentence, see People v.
Reedy, 708 N.E.2d 1114, 1116‐17 (Ill. 1999); People v. Fetter, 591 N.E.2d 474, 478 (Ill. App. Ct.
1992), and that judges must announce at sentencing the period of time the defendant will
likely spend in prison as a result of good time, 730 ILCS 5/5‐4‐1(c‐2); Reedy, 708 N.E.2d at
1117.
The question whether good‐time credit in Illinois is a direct or collateral consequence
of a conviction is a difficult one. But our task on habeas review is not to evaluate whether
the state appellate court’s conclusion about good‐time credit was incorrect but rather to
decide whether its conclusion about counsel’s ineffectiveness was objectively unreasonable
under federal law. And, given the difficulty of categorizing good‐time credit as a direct or
collateral consequence even under federal law, we cannot conclude that the state court’s
decision that counsel was effective was “well outside the boundaries of permissible
differences of opinion.” Starkweather, 574 F.3d at 402.
The Supreme Court has never adopted the dichotomy between direct and collateral
consequences that the Illinois appellate court uses to sort out an attorney’s duties to his
No. 08‐2713 Page 6
client under Strickland. But decisions from the federal appellate courts, though not
controlling for purposes of AEDPA, can help us determine whether a state court’s
application of Supreme Court precedent was unreasonable. See Burgess v. Watters, 467 F.3d
676, 687 (7th Cir. 2006); Jackson v. Frank, 348 F.3d 658, 665 (7th Cir. 2003). The federal courts
of appeal frequently have concluded that an attorney who fails to inform his client of direct
consequences of a conviction is ineffective but that an attorney need not mention collateral
consequences.1 See, e.g., Santos‐Sanchez v. United States, 548 F.3d 327, 334 (5th Cir. 2008);
Bustos v. White, 521 F.3d 321, 325 (4th Cir. 2008); United States v. Fry, 322 F.3d 1198, 1200 (9th
Cir. 2003); McCarthy v. United States, 320 F.3d 1230, 1234 (11th Cir. 2003); Santos v. Kolb, 880
F.2d 941, 944‐45 (7th Cir. 1989). And the federal circuit courts agree that direct
consequences are those that are “definite,” “immediate,” and “automatic,” see, e.g., Wilson v.
McGinnis, 413 F.3d 196, 199 (2d Cir. 2005); Dalton v. Battaglia, 402 F.3d 729, 733 (7th Cir.
2005); Steele v. Murphy, 365 F.3d 14, 17 (1st Cir. 2004), such as the minimum amount of time
a defendant must serve and the maximum amount of time he may serve, Jamison v. Klem,
544 F.3d 266, 277‐78 (3d Cir. 2008); Dalton, 402 F.3d at 733. On the other hand, courts have
defined collateral consequences as those that, even if they are “automatic,” are “beyond the
control and responsibility” of the sentencing court, e.g., Kratt v. Garvey, 342 F.3d 475, 485
(6th Cir. 2003); United States v. Amador‐Leal, 276 F.3d 511, 516‐17 (9th Cir. 2002), or are “in
the hands of” another government agency or the defendant himself, Torrey v. Estelle, 842
F.2d 234, 236 (9th Cir. 1988). The possibility of civil commitment, Steele, 365 F.3d at 17, the
loss of federal benefits, United States v. Morse, 36 F.3d 1070, 1072 (11th Cir. 1994),
deportation, Santos, 880 F.2d at 944‐45, and the effect of a guilty plea on future convictions,
King v. Dutton, 17 F.3d 151, 153‐54 (6th Cir. 1994), have all been deemed collateral. Parole
eligibility—the consequence most analogous to eligibility for good‐time credit—also has
been classified as collateral. See Bustos, 521 F.3d at 325‐26 (collecting cases). But see Bell v.
State, 576 F.2d 564, 566 (4th Cir. 1978) (concluding, without deciding whether parole is
direct or collateral consequence, that defendant must be informed of ineligibility for parole
before pleading guilty); United States v. Smith, 440 F.2d 521, 523‐26 (7th Cir. 1971) (same);
Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969) (same).
1
Courts distinguish between failing to inform and actively misinforming a defendant
about collateral consequences. See, e.g., Beavers v. Saffle, 216 F.3d 918, 925 (10th Cir. 2000);
Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989); see also Commonwealth v. Padilla,
253 S.W.3d 482 (Ky. 2008), cert granted, 129 S. Ct. 1317 (2009) (granting certiorari on question
whether misadvice about immigration consequences of conviction can amount to ineffective
assistance of counsel). McDonald does not argue that his attorney misinformed him about
his eligibility for good‐time credit.
No. 08‐2713 Page 7
Thus, in employing the widely used distinction between direct and collateral
consequences to determine whether McDonald received constitutionally defective advice
from counsel, the state appellate court did not act unreasonably. And the court’s ultimate
conclusion—that good‐time credit is indeed collateral—also was not unreasonable.
Although an eligible Illinois prisoner has a presumptive entitlement to good‐time credit, the
amount of credit he actually receives is controlled by variables—including the defendant’s
own conduct and, if he misbehaves, the will of the Prisoner Review Board—external to the
sentencing court. See 730 ILCS 5/3‐6‐3(c). Whether the defendant must earn the credit (as
under the federal good‐time scheme) or has a presumptive entitlement to it (as under the
Illinois scheme), the effect of good‐time on the defendant’s sentence is unknowable at the
time of sentencing. And, whether right or wrong, it was not objectively unreasonable for
the state appellate court to describe this as collateral, and to describe counsel’s silence about
it as constitutionally permissible. See Meyer v. Branker, 506 F.3d 358, 368 (4th Cir. 2007) (“A
consequence is ‘collateral’ when it is uncertain or beyond the direct control of the court.”);
Broomes v. Ashcroft, 358 F.3d 1251, 1256‐57 (10th Cir. 2004) (“A consequence is collateral if it
‘remains beyond the control and responsibility of the district court in which that conviction
was entered.’”) (quoting United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000)).
Because the state appellate court did not unreasonably conclude that McDonald’s
eligibility for good‐time credit was a collateral consequence of his decision to forego a jury
instruction on second‐degree murder—and that his attorney thus was not obligated to
discuss it with him—we need not consider the prejudice prong of Strickland. See Harris v.
United States, 366 F.3d 593, 596‐97 (7th Cir. 2004).
B. Ex Parte Appearance‐Bond Hearings
We turn, then, to the second issue certified for appeal—whether McDonald was
harmed by his exclusion from the appearance‐bond hearings. Although “a defendant is
guaranteed the right to be present at any stage of the criminal proceeding that is critical to
its outcome if his presence would contribute to the fairness of the procedure,” Kentucky v.
Stincer, 482 U.S. 730, 745 (1987), ex parte communications are subject to harmless‐error
analysis, Rushen v. Spain, 464 U.S. 114, 117‐20 (1983). The state appellate court held that it
was error for McDonald to be excluded from the appearance‐bond hearings but concluded
that the error was harmless because no inflammatory communication occurred at the
hearing that could have influenced the trial judge and there was nothing that McDonald’s
presence could have done to affect the proceedings. McDonald argues that this was error,
but we disagree.
McDonald identifies three ways in which he allegedly was harmed by the ex parte
appearance‐bond hearings. First, he asserts that the bonds “inevitably . . . pressured the
No. 08‐2713 Page 8
witnesses into testifying against” him and that his presence at the hearings would have
prevented the trial court from issuing the bonds. But an appearance bond does not
“inevitably” pressure the witness to testify in favor of the prosecution. The bond serves as a
“forceful reminder” of the witness’s obligation to testify, Pruitt v. McAdory, 337 F.3d 921, 927
(7th Cir. 2003), but it does not promise leniency or a reward for testifying in a particular
manner. While McDonald may have preferred that the witnesses not appear to testify
against him at all, his assertion that the bonds had any effect on the content of their
testimony is entirely speculative. And in any event, McDonald was aware of the bonds
prior to trial and could have used their existence to undermine the veracity of the witnesses’
testimony if he wished.
Moreover, there is no evidence that McDonald’s presence at the hearings would have
had any effect on the issuance of the bonds. Contrary to McDonald’s assertion, the trial
judge was not required to make a finding about whether the witnesses’ “supposed fears
were groundless” before issuing the bonds. The judge needed only to determine whether
the witnesses were material, whether a risk of nonappearance existed so as to justify the use
of a recognizance bond, and how much the bond should be. McDonald, 749 N.E.2d at 1070.
McDonald has not challenged the witnesses’ materiality or suggested that they were not
reluctant to testify. Whether he agrees that they had legitimate fears about the
repercussions of testifying against him is irrelevant.
Next, McDonald asserts that the “unchallenged allegations” of his “dangerousness”
during the hearings so biased the judge against him that he was effectively prevented from
opting for a bench trial. Although there is no federal constitutional right to a bench trial,
Singer v. United States, 380 U.S. 24, 36 (1965); United States v. Clark, 943 F.2d 775, 784 (7th Cir.
1991), Illinois recognizes such a right, People v. Gersch, 553 N.E.2d 281, 284‐85 (Ill. 1990).
Nevertheless, McDonald had already been indicted for first‐degree murder, and it is
frivolous to argue that the information in the bond petitions had any additional impact on
the judge’s impartiality. In any event, McDonald does not assert that he would have
waived his right to trial by jury if not for the alleged damage done at the bond hearings,
and, as the state appellate court pointed out, he had the opportunity to request a new judge
but did not.
Finally, McDonald asserts that his absence from the hearings harmed him because,
as a result of the hearings, the trial judge believed that he was dangerous and consequently
ordered him shackled during the trial. This argument is procedurally defaulted. McDonald
first raised the general issue of shackling in a second petition for postconviction relief,
asserting that his right to due process had been violated because he was forced to appear
before the jury in shackles without an individual determination that shackling was
warranted. People v. McDonald, 846 N.E.2d 960, 963‐65 (Ill. App. Ct. 2006). But McDonald in
No. 08‐2713 Page 9
no way connected the shackling to the ex parte bond hearings and in fact asserted that
shackling of felony defendants was standard operating procedure of the sheriff’s
department at the time of his trial. See id. at 963. The state appellate court concluded that
McDonald had waived this general attack on shackling by failing to raise it in an earlier
proceeding. McDonald’s new theory connecting the shackling to the bond hearings is an
attempted end run around the procedural default, but he is not permitted to raise new
theories that the state courts had no opportunity to address. See OʹSullivan v. Boerckel, 526
U.S. 838, 844‐45 (1999); Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001).
III. Conclusion
Accordingly, we AFFIRM the judgment of the district court.