Nathan Berkman v. Frank Vanihel

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1567
NATHAN S. BERKMAN,
Petitioner-Appellant,
v.

FRANK VANIHEL,
Respondent-Appellee.
____________________

Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:19-cv-00750 — Robert L. Miller, Jr., Judge.
____________________

ARGUED NOVEMBER 12, 2021 — DECIDED MAY 11, 2022
____________________

Before SYKES, Chief Judge, RIPPLE, and ST. EVE, Circuit
Judges.
RIPPLE, Circuit Judge. Nathaniel Berkman was tried in In-
diana state court on first-degree and felony-murder charges
for the killing of his drug supplier. The jury acquitted
Mr. Berkman on the first-degree murder charge, but could not
reach a verdict related to felony murder. A second trial was
held at which one of the State’s key witnesses, Arlene Tim-
merman, was declared unavailable due to illness.
2 No. 21-1567

Timmerman’s testimony from the first trial was read into the
record, and the jury convicted Mr. Berkman of felony murder.
Mr. Berkman appealed his conviction, claiming error in
the trial court’s admission of Ms. Timmerman’s testimony.
The Court of Appeals of Indiana determined that the trial
court did not abuse its discretion in admitting the evidence
given that Timmerman was unavailable and that Mr. Berk-
man had had an opportunity to cross-examine Ms. Timmer-
man at the first trial. The Indiana Supreme Court denied
transfer.
After exhausting state postconviction remedies, Mr. Berk-
man filed a pro se federal habeas petition in which he main-
tained that the introduction of Timmerman’s testimony vio-
lated his Sixth Amendment right to confront witnesses as set
forth in Crawford v. Washington, 541 U.S. 36 (2004). The district
court denied relief but granted Mr. Berkman a certificate of
appealability on the question of whether the state appellate
court unreasonably applied Crawford. Because the Court of
Appeals of Indiana did not unreasonably apply Crawford, we
affirm the district court’s denial of habeas relief.
I
A. State Trial Court Proceedings
We recount the facts as set forth by the Court of Appeals
of Indiana, which are presumed correct in this habeas pro-
1
ceeding. We supplement as necessary from the transcript of
Mr. Berkman’s second trial.

1 See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody pursuant to the
No. 21-1567 3

In August 2008, Mr. Berkman owed $2,000 to his cocaine
dealer, Olen Hawkins. On August 30, Mr. Berkman arranged
to meet Hawkins in a supermarket parking lot, ostensibly to
pay Hawkins for what was owed. Prior to leaving for the
meeting, Mr. Berkman told his girlfriend, Arlene Timmer-
man, with whom he resided, “that [he] was going to leave to
obtain money and cocaine[,] and that he had to go by him-
2
self.”
Mr. Berkman took Timmerman’s car to the supermarket
parking lot, where he met Hawkins. Mr. Berkman got into
Hawkins’s car, slit his throat, and took the drugs and money
that Hawkins had with him. Mr. Berkman returned to Tim-
merman’s house between 9:30 p.m. and 10:00 p.m. Mr. Berk-
man explained to Timmerman what had transpired, and Tim-
merman saw Hawkins’s body. “[Mr.] Berkman, Timmerman,
and Tanya Sullivan, who was visiting, then smoked crack co-
3
caine in the basement until approximately 1:30 or 2:00 a.m.”
At some point during the overnight hours, “[Mr.] Berk-
man retrieved a knife from the kitchen, held it to Timmer-
4
man’s neck,” and ordered her to the basement. Timmerman
managed to escape to the home of a friend. The next morning

judgment of a State court, a determination of a factual issue made by a
State court shall be presumed to be correct.”).
2 Berkman v. State, 976 N.E.2d 68, 71 (Ind. Ct. App. 2012).

3 Id.

4 Id.
4 No. 21-1567

“Timmerman called home, [Mr.] Berkman apologized, and
5
Timmerman returned home.”
When Timmerman arrived, Mr. Berkman informed her
that he had devised a plan to dispose of Hawkins’s body. On
the morning of September 2, Mr. Berkman drove Hawkins’s
car to a field, doused it with gasoline, and set it on fire. Haw-
kins’s car and remains were discovered two months later.
The State of Indiana charged Mr. Berkman with murder
and felony murder, and the case proceeded to trial at which
Timmerman testified in person. The “jury acquitted [Mr.]
Berkman of murder but failed to reach a verdict on the felony
6
murder count.”
A second felony-murder trial began on August 30, 2011.
The State intended to call Timmerman on the third day of
trial, but called Sullivan to testify instead. At the beginning of
the fourth day of trial, Timmerman was in the hospital, and
so the trial court excused the jury and postponed the trial for
7
several days.
Timmerman appeared to testify the following Tuesday.
She had testified for several minutes when the prosecuting at-
torney realized that Timmerman appeared unwell and asked
to approach the witness. When the prosecutor inquired, “Are
8
you okay?” Timmerman responded “No, I’m not.”

5 Id.

6 Id.

7 See Trial Tr. at 438, 442.

8 Id. at 463.
No. 21-1567 5

Timmerman then was escorted to a back room. There, the
court made the following inquiries:
The Court: … Present is the witness,
Ms. Massa, Mr. Marcus [the prosecutor] and
Mr. Page [defense counsel], and the court re-
porter.
Can you kind of tell me what’s going on with
you right now? What’s happening here?
The Witness: I’m very nauseous. I was in
the hospital for–since Wednesday until Satur-
day and they were testing me for MS. They
thought I might have had a seizure, possibly a
stroke, and they released me Saturday. I’m
sorry, I’m burning up, very nauseous, and I
have nothing in my stomach at all.
The Court: You haven’t eaten this
morning?
The Witness: I’m afraid to.
…
The Court: Can I get you a 7-Up or
something like that, a Sprite? You think that
might help?
The Witness: That might help ….
…
The Witness: I’m just very sick to my
stomach. It came on suddenly. It was nothing to
do with the questions that Reggie was asking
6 No. 21-1567

me. I’m very comfortable answering anything
either one of you guys have to ask me.
The Court: But now can you go back
out there and do that? That’s the question.
The Witness: In a few minutes, I felt very
nauseous. I thought I was going to throw up.
The Court: Let’s take a few more
minutes, get her a 7-Up and see if that settles her
stomach down a little bit and see where we go
from there.
The Witness: I’m very sorry. I don’t want
to delay this. I want to get this done with. It’s
been delayed long enough due to me being in
the hospital and I’m afraid I’m getting another
migraine.
The Court: Okay. All right. Let’s get
the 7-up and see if that will help you at all. You
can go back in that room and sit down and relax
and we’ll bring you something.
The Witness: Thank you.
…
… Can I ask you another
question? In my purse, I have some Tums in a
9
baggy. Would I be able to get one of those?
Once Timmerman had left the room, the court asked that
Timmerman’s purse be retrieved so the witness could get the

9 Trial Tr. at 465–68.
No. 21-1567 7

Tums. It then continued its discussion with counsel concern-
ing how they should proceed. The court did not believe that
it was going to be possible for the witness to continue. It then
turned to the governing standard for declaring a witness un-
available. The court and both counsel agreed that the court
could declare a witness unavailable if she was either unable
to be present or unable to testify; Timmerman fell into the sec-
10
ond category.
Back in the courtroom, but after the jury had been excused
for an early lunch, the court reiterated its determination: “In
chambers, we were on the record and interviewed the wit-
ness. I determined at that point in time that she is not going
to be able to continue with this trial. I’m declaring her una-
11
vailable.” Mr. Page then stated that he
would like to interpose an objection to that be-
ing done, the reason being that under Crawford
[v. Washington, 541 U.S. 36 (2004),] and classic
confrontational case law, it denies the jury the
number one thing they need, and that’s an op-
portunity to see the face-to-face confrontation
between the defendant and the witness, and to
judge the demeanor of the witness by her ap-
pearance and her voice.
I recognize we have a prior trial at which I
cross-examined her at length. There may be
some things that have been brought up so far
that are—they don’t go directly to the substance

10 See id. at 469–70.

11 Id. at 471–72.
8 No. 21-1567

of Mr. Hawkins’ death, but they deal with some
significant collateral issues.
And the problem with reading the transcript
from the previous trial into the record … is that
… it doesn’t give the jury the opportunity to do
the number one thing so many of them say dur-
ing voir dire they need in order to judge a wit-
ness, and that is to observe how they testify.
The last trial testimony was—she was what I
would call successfully cross-examined, successfully
impeached on a number of points. But if one can
only but see how she reacted to some of the
questions and how she testified, it just doesn’t
come across in this transcript.
And I think in this particular instance while
we’ve got a witness who’s physically unable to tes-
tify today, I believe there could come a time in
the future when she could come available to tes-
tify, when she is feeling better, when we do
have the opportunity to present her to the jury
so that they can see and judge her testimony
based on how she testifies.
And therefore, my suggestion is that the
12
time has come for a mistrial altogether.
The court determined, however, that Mr. Page had had a full
opportunity to cross-examine Timmerman in the first trial.
Because the opportunity to cross-examine was the crux of the

12 Id. at 471–73 (emphasis added).
No. 21-1567 9

Crawford decision, the court determined that the trial would
13
go forward.
Timmerman’s testimony from the prior trial was then read
aloud to the jury. Following the conclusion of evidence, the
jury returned a guilty verdict against Mr. Berkman.
B. State Appellate Court Proceedings
Mr. Berkman appealed and, among other issues, claimed
that the trial court erred in failing to grant a mistrial. Within
this argument, he also maintained that the trial court erred in
admitting Timmerman’s prior testimony. Mr. Berkman began
this discussion by noting that granting a mistrial is within the
trial court’s discretion. Under Indiana law, Mr. Berkman ex-
plained, a mistrial was warranted when the defendant is
“placed in a position of grave peril to which he should not …
14
[be] subjected.” Mr. Berkman continued that one of the “sub-
issues involved with the trial court’s ruling and subsequent
denial of [Mr.] Berkman’s motion for mistrial” was that he
“was denied his right to confront and cross-examine Timmer-
15
man in front of the jury.” In presenting his confrontation ar-
gument, Mr. Berkman noted that, “for the testimonial hearsay
to come in, the declarant must be unavailable as well as allow-
ing the defendant to have had a prior opportunity to cross-
16
examine the declarant.” He further submitted that
“Ind[iana] Evidence Rule 804(a)(4) defines unavailability

13 See id. at 473–74.

14 R.7-3 at 25.

15 Id. at 28.

16 Id. at 30 (citing Crawford v. Washington, 541 U.S. 36 (2004)).
10 No. 21-1567

where a witness is unable to testify because of a then existing
17
physical illness.” According to Mr. Berkman, “there ha[d]
been no showing that Timmerman was definitely unavailable
18
to testify” due to illness.
In its response, the State argued that “[Mr.] Berkman was
not placed in ‘grave peril’ because the trial court did not abuse
its discretion when it admitted Timmerman’s prior testi-
19
mony.” It noted that the admission of evidence generally, as
well as the decision to admit prior recorded testimony specif-
20
ically, is “within the sound discretion of the trial court.”
Turning to the standard of unavailability under Indiana Rule
of Evidence 804(a)(4), the State noted that “Timmerman had
recently been in the hospital for four days, being treated for a
possible stroke or seizure” and that the trial court had con-
cluded that the prospect of Timmerman’s testifying “[did]n’t
21
even seem possible.”
In his reply, Mr. Berkman did not contest the standard for
evaluating unavailability—Indiana Rule of Evidence
804(a)(4)—or maintain that the standard for reviewing that
determination was something other than an abuse of discre-
22
tion. Rather, he maintained that there had been an

17 Id.

18 Id. at 31.

19 R.7-4 at 23.

20 Id. at 23, 24.

21 Id. at 24–25 (quoting Trial Tr. at 471).

22 See generally R.70–5 at 10–11.
No. 21-1567 11

“inadequate showing of the witness’s unavailability” and that
his lack of opportunity to cross-examine Timmerman in front
23
of the jury resulted in prejudice.
The Court of Appeals of Indiana rejected Mr. Berkman’s
argument. It explained:
Berkman contends that the trial court
abused its discretion in declaring Timmerman
unavailable. Soon after beginning her testi-
mony, Timmerman indicated that she was
“having an issue[,]” and trial was recessed. Tr.
p. 463. When questioned by the trial court in
chambers, Timmerman said that she was “very
nauseous [and] burning up[,]” she was afraid
that she might be developing a migraine, and
she had “thought [she] was going to throw up.”
Tr. pp. 466–67. Timmerman also indicated that
she had been hospitalized from Wednesday to
Saturday of the previous week, she had under-
gone testing for multiple sclerosis, and hospital
personnel believed that she may have had a sei-
zure or “possibly a stroke[.]” Tr. p. 466. After
observing the witness, the trial court remarked
that “I don’t see how we’re going to be able to
continue with this. I’ll get [Timmerman] the
[Tums] [she requested], but it doesn’t even seem
possible to me.” Tr. p. 468.

23 Id. at 11–12.
12 No. 21-1567

Under the circumstances of this case, we
cannot conclude that the trial court abused its
discretion in declaring Timmerman unavaila-
ble. The trial court questioned Timmerman,
who complained of nausea and felt that she
might be developing a migraine. Timmerman
also indicated that she had very recently been
hospitalized for four days, with medical person-
nel suspecting MS, seizure, or stroke as the
cause of her symptoms. Most importantly, the
trial court personally interviewed Timmerman
and was able to observe her behavior, de-
meanor, and appearance, something we cannot
do. Berkman has failed to establish that the trial
court abused its discretion in declaring Timmer-
man unavailable due to present illness.
…
The Sixth Amendment to the United States
Constitution provides, in part, that “[i]n all
criminal prosecutions, the accused shall enjoy
the right … to be confronted with the witnesses
against him[.]” … Berkman argues that his right
to confront witnesses against him was violated
by the admission of Timmerman’s prior testi-
mony.
It is well-settled that the admission of prior
testimony is constitutional provided certain re-
quirements are met.
In Crawford v. Washington, 541
U.S. 36 (2004), the Supreme Court
No. 21-1567 13

held that the Confrontation
Clause of the Sixth Amendment to
the Federal Constitution prohibits
admission in a criminal trial of tes-
timonial statements by a person
who is absent from trial, unless
the person is unavailable and the
defendant had a prior oppor-
tunity to cross-examine the per-
son.
Fowler v. State, 829 N.E.2d 459, 464 (Ind. 2005).
… As we have discussed, the trial court did not
abuse its discretion in declaring Timmerman
unavailable, and there is no dispute that Berk-
man cross-examined Timmerman during her
prior testimony. Berkman’s rights to confront
24
the witnesses against him were not violated.
Mr. Berkman petitioned for transfer to the Indiana Supreme
Court, which was denied.
Mr. Berkman then filed a petition for state post-convic-
tion relief, which was denied after an evidentiary hearing. The
Court of Appeals of Indiana affirmed, and the Indiana Su-
preme Court denied transfer.
C. District Court Proceedings
Mr. Berkman filed a federal habeas petition in which he
raised, among other challenges, a claim that his Sixth Amend-
ment right to confront witnesses was violated by the admis-
sion of Timmerman’s testimony. In reviewing this claim, the

24 Berkman, 976 N.E.2d at 75–76 (cleaned up).
14 No. 21-1567

district court noted that its review was limited by 28 U.S.C.
§ 2254(d). As interpreted by this court, § 2254(d) requires that
“[a] petitioner … show that the state court’s ruling on the
claim … was so lacking in justification that there was an error
well understood and comprehended in existing law beyond
25
any possibility for fair-minded disagreement.”
The district court determined that this standard had not
been met. It noted that, by the time of the second trial,
Mr. Berkman “had been in pretrial detention for nearly two
26
years.” He had “sought to be released on bond prior to the
second trial”; however, the state trial judge denied the request
making it “clear that she intended to move the trial proceed-
27
ings along as swiftly as possible.” The district court then re-
counted the events and discussion that took place in the trial
court immediately after Timmerman left the stand. It ob-
served:
Nothing in this record suggests that
Ms. Timmerman was feigning illness or trying
to avoid testifying, and the prosecution made a
good-faith effort to secure her presence. Still,
Mr. Berkman thinks the judge should have done
more before declaring Ms. Timmerman unavail-
able, including waiting longer to see if Ms. Tim-
merman might recover. In Mr. Berkman’s view,

25 Berkman v. Warden, No. 3:19-CV-750-RLM-MGG, 2021 WL 826556, at *3
(N.D. Ind. Mar. 4, 2021) (quoting Hoglund v. Neal, 959 F.3d 819, 832 (7th
Cir. 2020)).
26 Id. at *6.

27 Id.
No. 21-1567 15

her problems would likely have cleared up
within a matter of a few minutes. Maybe so, but
the record also supports the conclusion that
Ms. Timmerman’s problems were far more seri-
ous, as she said she almost vomited on the stand
and thought she was getting a migraine.
Ms. Timmerman had a history of migraines that
caused her to see flashing lights and other vis-
ual disturbances. She had only been recently re-
leased from the hospital and was undergoing
testing for potentially serious medical condi-
tions. Federal habeas relief is not available
merely because a court with the benefit of com-
fortable hindsight can envision other steps that
might have been taken to secure a witness’s live
28
testimony before declaring her unavailable.
The district court noted that state trial court could “have
waited additional time before declaring Ms. Timmerman un-
available”; however, that likely would have resulted in “seri-
ous disruption to the court calendar and the schedules of ju-
rors, witnesses, and lawyers. By the same token, the judge
might have been reluctant to further delay the trial indefi-
nitely, or declare another mistrial, in hopes that Ms. Timmer-
29
man would recover enough to testify.” Because the state trial
court could have reached two reasonable but competing con-
clusions, the district court concluded that it must defer to the

28 Id. at *7 (citation omitted).

29 Id.
16 No. 21-1567

30
state trial court’s choice. Moreover, the district court noted,
Ms. Berkman’s counsel had had an opportunity to vigorously
cross-examine Timmerman in the first trial.
The district court also concluded that, even if there had
been a Confrontation Clause violation, the error did not result
in prejudice. Applying Brecht v. Abrahamson, 507 U.S. 619, 637
(1993), the court acknowledged that “Timmerman’s testi-
mony was critical to the state’s case,” but noted “other evi-
31
dence corroborated her account.” Among the corroborating
evidence was that the police had recovered a cell phone from
the roof of the supermarket where, according to Timmer-
man’s testimony, Mr. Berkman had told her he threw the
32
phone “to get rid of it.” “Timmerman was also able to direct
police to the exact location where Mr. Hawkins’s body was
33
recovered.” Furthermore, much of Timmerman’s testimony
was corroborated by the prior testimony of Paul Berraza, and
by the live testimony of Tanya Sullivan, Megan Johnson, and
Shawn Black. Additionally, Mr. Berkman had taken the stand
in his own defense and admitted at least some of the events
covered in Timmerman’s testimony: He “admitted meeting
Mr. Hawkins that night in the parking lot of the WiseWay,
and to calling Mr. Hawkins on a pay phone to set up the meet-
34
ing, even though he had a cell phone with him at the time.”

30 See id. (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

31 Id. at *8.

32 Id.

33 Id.

34 Id. at *9.
No. 21-1567 17

He also “had no clear explanation for why he was gone sev-
eral hours, as recounted by Ms. Timmerman, Ms. Sullivan,
35
and Ms. Johnston.” Although “[h]e denied killing Mr. Haw-
kins, … [he] had no explanation as to why he appeared upset
and agitated to witnesses when he returned home, or why he
made a statement to Ms. Sullivan about having ‘hurt some-
36
body really bad.’” Finally, “Mr. Berkman offered shifting
and contradictory explanations to police when he was ini-
37
tially brought in for questioning.” For these reasons, the
court concluded, “Mr. Berkman ha[d] not established actual
prejudice, even assuming the state court’s resolution of his
confrontation clause claim involving Ms. Timmerman’s testi-
38
mony was erroneous.”
The district court granted Mr. Berkman a certificate of ap-
pealability with respect to the question of whether the state
court unreasonably applied Crawford.
II

On habeas review, this court, like the district court, re-
views the state court’s decision according to the standards set
forth in the Anti-Terrorism and Effective Death Penalty Act:

(d) An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the
judgment of a State court shall not be granted

35 Id.

36 Id.

37 Id.

38 Id. at *10.
18 No. 21-1567

with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim—

(1) resulted in a decision that was contrary
to, or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or

(2) resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State court
proceeding.

28 U.S.C. § 2254(d). This standard was intended to be “diffi-
cult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). In-
deed, a state court decision can be reasonable even if we be-
lieve “it is an incorrect application of Supreme Court prece-
dent,” Schmidt v. Foster, 911 F.3d 469, 477 (7th Cir. 2018) (citing
McDaniel v. Polley, 847 F.3d 887, 893 (7th Cir. 2017)), “if the
result is clearly erroneous,” id. (citing White v. Woodall, 572
U.S. 415, 419 (2014)), or if the petitioner has “a strong case for
relief,” id. (quoting Harrington, 562 U.S. at 102).
Moreover, as § 2254(d) makes clear, Supreme Court prec-
edent provides the standard against which the reasonableness
of the state court’s action is measured. The Supreme Court has
stated unequivocally, and on more than one occasion, that
“clearly established law as determined by this Court ‘refers to
the holdings, as opposed to the dicta, of this Court’s decisions
as of the time of the relevant state-court decision.’” Yarborough
v. Alvarado, 541 U.S. 652, 660–61 (2004) (quoting Williams v.
Taylor, 529 U.S. 362, 412 (2000)). It does not include reasonable
extensions of those holdings in circuit precedent. See Glebe v.
No. 21-1567 19

Frost, 574 U.S. 21, 24 (2014) (per curiam) (restating that “circuit
precedent does not constitute ‘clearly established Federal law,
as determined by the Supreme Court’” and rejecting the argu-
ment that circuit precedent could “help … determine what
law is ‘clearly established’” (cleaned up)).
With this standard in mind, we turn to Mr. Berkman’s con-
tentions.

A.

Mr. Berkman contends that the state appellate court’s de-
cision was contrary to or unreasonably applied Crawford in
three ways; none of these contentions are persuasive. First, ac-
cording to Mr. Berkman, Crawford imposes a continuing duty
39
on the trial court to evaluate a witness’s availability. As ap-
plied in his case, this duty placed a burden on the trial court
to reevaluate Timmerman’s condition after the early-lunch re-
cess to determine if her condition had improved to the point
that she was able to testify. The trial court’s failure to do so,
Mr. Berkman continues, violated Crawford, and the state ap-
pellate court’s failure to recognize this error was unreasona-
ble.
Mr. Berkman’s sole support for his continuing-duty argu-
ment is a decision from our court, Burns v. Clusen, 798 F.2d
931 (7th Cir. 1986), which is not sufficient to meet his burden
under § 2254(d)(1). As we noted earlier, “[t]o grant the peti-
tion, we must conclude that the state court unreasonably ap-
plied Supreme Court precedent, not our own.” Flint v. Carr,

39 See Appellant’s Br. 10 (citing Burns v. Clusen, 798 F.2d 931, 943 (7th Cir.
1986)).
20 No. 21-1567

10 F.4th 786, 796 (7th Cir. 2021) (citing Glebe, 574 U.S. at 24).
Having failed to come forward with any clearly established
Supreme Court precedent that has imposed such a duty on
the trial court, we must conclude that Mr. Berkman has not
40
met his burden under AEDPA.

B.
Mr. Berkman also maintains that the state appellate court
ran afoul of Crawford because it “did not address the state’s
41
burden in proving that Timmerman was unavailable.”
There is no question that burden rests on the party seeking to
declare the witness unavailable, here the prosecution. See Ohio
v. Roberts, 448 U.S. 56, 74–75 (1980), overruled on other grounds
by Crawford, 541 U.S. 36.

40 Even if Burns provided a basis by which to evaluate the state court’s
opinion, we would not conclude that the state court’s determination was
unreasonable. In Burns, the victim, L.L., was in a psychiatric hospital in
early September 1980. However, the State did not file a motion seeking to
have her declared unavailable until December of that year. At that point,
the testifying physician had not seen L.L. for three weeks. Moreover, the
trial court did not rule on the motion until January 1981, and the trial be-
gan in March 1981. See Burns, 798 F.2d at 938. Thus, at the time of trial,
there were “[n]o findings on the basis of up-to-date evidence … with re-
spect to the witness’ physical or mental conditions.” Id. at 939. Here, by
contrast, just a few hours separated the trial court’s determination that
Timmerman was physically unable to testify and the reading of Timmer-
man’s testimony to the jury. Burns simply provides no basis for conclud-
ing that the trial court relied on stale evidence when it admitted Timmer-
man’s prior testimony.
41 Appellant’s Br. 12.
No. 21-1567 21

42
Although couched in terms of reasonableness, Mr. Berk-
man’s argument does not fall neatly within the “unreasonable
application” language of § 2254(d)(1). As we have explained,
“[a] state court ‘unreasonably applies’ clearly established Su-
preme Court decisions when it ‘correctly identifies the gov-
erning legal rule but applies it unreasonably to the facts of a
particular [petitioner’s] case.’” Burgess v. Watters, 467 F.3d
676, 681 (7th Cir. 2006) (alteration in original) (quoting Laxton
v. Bartow, 421 F.3d 565, 570 (7th Cir. 2005)). Rather, Mr. Berk-
man appears to be arguing that the state appellate court’s de-
cision was “contrary to” established Supreme Court prece-
dent because it failed to quote or cite Supreme Court prece-
dent for the proposition that the prosecution bears the burden
of proof. The Supreme Court, however, refused to impose
such a requirement on state courts. In Early v. Packer, 537 U.S.
3 (2002), the Supreme Court stated:
A state-court decision is “contrary to” our
clearly established precedents if it “applies a
rule that contradicts the governing law set forth
in our cases” or if it “confronts a set of facts that
are materially indistinguishable from a decision
of this Court and nevertheless arrives at a result
different from our precedent.” Avoiding these
pitfalls does not require citation of our cases—
indeed, it does not even require awareness of

42 See Appellant’s Br. 12–13 (“In evaluating Berkman’s Crawford claim, the
Indiana Court of Appeals did not address the state’s burden in proving
that Timmerman was unavailable. Instead, the Indiana Court of Appeals
merely held that the trial court did not abuse its discretion in finding that
Timmerman was unavailable. Therefore, the Indiana courts unreasonably
applied clearly established federal law.” (internal citation omitted)).
22 No. 21-1567

our cases, so long as neither the reasoning nor
the result of the state-court decision contradicts
them.
Id. at 8 (quoting Williams, 529 U.S. at 405–06).
Here, neither the reasoning nor the result of the state ap-
pellate court’s decision contradicts Supreme Court precedent,
nor suggests that the prosecution failed to meet its burden of
proof. Timmerman initially was unavailable to testify because
she was hospitalized. The trial court postponed the trial for
several days to allow her the opportunity to recover. The rec-
ord is clear that the state trial judge, the prosecutor, and de-
fense counsel all realized there was a possibility that Timmer-
man may not be well enough to testify when the trial re-
sumed. In anticipation of this possibility, the court had in-
structed counsel to confer about the transcript of her prior tes-
timony that would be read to the jury. Furthermore, when the
trial resumed, the judge and both counsel witnessed first-
hand the physical distress that Timmerman was suffering and
agreed that Timmerman, although physically present, was
unable to continue with her testimony; defense counsel even
acknowledged on the record that “we’ve got a witness who’s
43
physically unable to testify today.” Thus, given this consensus
as to Timmerman’s status, there was no reason for either the
state trial court or the state appellate court to address the
44
prosecution’s burden of proof.

43 Trial Tr. at 473 (emphasis added).

44 Mr. Berkman does not argue in this court that his confrontation rights
were violated by the trial court’s failure to postpone the trial for a second
No. 21-1567 23

C.
Finally, Mr. Berkman contends that the state appellate
court’s application of Crawford was unreasonable because it
only evaluated whether the trial court had “abuse[d] its dis-
cretion in finding that Timmerman was unavailable” instead
of applying de novo review required for constitutional is-
45
sues. According to Mr. Berkman, this shows that the state
appellate court did not understand that he was raising a con-
stitutional question, and, consequently, it did not subject the
trial court’s decision to the more searching review required
46
for constitutional issues.
We cannot accept this argument. First, we cannot fault the
state appellate court for addressing the issues as Mr. Berkman
framed them in his brief. On his direct appeal, Mr. Berkman
submitted that Indiana Rule of Evidence 804(a)(4) provided
the definition of unavailability. In its response, the State noted
that a trial court’s evidentiary rulings are reviewed for an

time, nor does he claim that he did not have an adequate opportunity to
cross-examine Timmerman in the first trial.
45 See Appellant’s Br. 12–13. The argument in Mr. Berkman’s opening
brief concerning standard of review, even when viewed generously, is
cursory at best. We caution counsel that waiting to develop an argument
until the reply brief risks forfeiture of that argument. See, e.g., Rexing Qual-
ity Eggs v. Rembrandt Enters., Inc., 996 F.3d 354, 365 n.52 (7th Cir. 2021). The
requirement that an argument is raised and developed in the opening brief
“ensures that the opposing party has an opportunity to reflect upon and
respond in writing to the arguments that his adversary is raising.” Hamil-
ton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012).
Moreover, it ensures that the issues have been distilled and fully joined so
that the court can reach an informed decision in an efficient manner.
46 See Reply Br. 2–3.
24 No. 21-1567

abuse of discretion. In his reply brief to the state appellate
court, Mr. Berkman did not contest this standard of review or
maintain, as he does in this appeal, that a different standard
of review should apply. In response to the parties’ arguments,
the Court of Appeals of Indiana addressed the issue of una-
vailability according to Indiana Rule of Evidence 804(a)(4) and
employed the standard attendant to a determination of ad-
47
missibility under the Indiana Rules of Evidence. However,
regarding the ultimate question of whether Mr. Berkman’s
right to confront witnesses under the federal constitution was
violated, the state appellate court both drew upon the Craw-
48
ford standard and conducted its own review.
Looking beyond his failure to alert the state appellate
court to what he now claims is the appropriate standard of
review, the central legal flaw in Mr. Berkman’s argument is
that he has not directed us to any Supreme Court case that
sets forth a standard of review for a finding that a witness is
unavailable. Indeed, although the Supreme Court has
acknowledged cases in which witnesses have been declared
unavailable due to physical or mental illness, see Motes v.
United States, 178 U.S. 458, 473–74 (1900), it has not given any
substantive guidance for how courts should determine
whether a witness may be declared unavailable due to illness,
much less the standard of review to be applied in reviewing a
trial court’s determination of unavailability. As “the Supreme
Court has ‘never addressed’ a case like this one—factually or
legally— … we cannot brand the state-court decision

47 See Berkman, 976 N.E.2d at 75.

48 See id. at 75–76.
No. 21-1567 25

unreasonable.” Schmidt, 911 F.3d at 478 (quoting Carey v. Mus-
ladin, 549 U.S. 70, 76 (2006)).
We acknowledge that in Burns we concluded that “una-
vailability” was a “mixed question of law and fact” and there-
fore subject to more searching review than the one employed
by the state appellate court here. However, as we already
have noted, “[t]o grant the petition, we must conclude that the
state court unreasonably applied Supreme Court precedent,
not our own.” Flint, 10 F.4th at 796 (citing Glebe, 574 U.S. at
24).
Moreover, even if the standard that we articulated in
Burns were a standard definitively articulated in Supreme
Court cases as the governing standard, we could not conclude
that the state court’s application of that standard was unrea-
sonable in this case. In the mine run of cases, a trial court is
called upon to assess the reasonableness of the prosecution’s
efforts to procure a witness, specifically whether those efforts
were sufficient and whether they were undertaken in good
faith. See generally Roberts, 448 U.S. at 74. In such a case, the
“determination on ‘unavailability’ goes beyond assessments
of credibility and demeanor.” Burns, 798 F.2d at 941. Here, by
contrast, Timmerman’s attendance had been procured, but
she had a sudden onset of illness that affected her ability to
testify. The issue of unavailability therefore was tied directly
to Timmerman’s physical condition, demeanor, and credibil-
ity, which, as we noted in Burns, are assessments “best made
in the trial court and not properly ignored by courts of ap-
peals.” Id. Therefore, we could not conclude that the state ap-
pellate court unreasonably applied that standard when it de-
ferred to the state trial court’s assessment of Timmerman’s
unavailability under the circumstances presented here.
26 No. 21-1567

Because the Supreme Court has articulated neither a sub-
stantive standard governing unavailability arising from a wit-
ness’s illness, nor a standard of review governing a trial
court’s determination of unavailability, we cannot conclude
49
that the state appellate court’s decision was unreasonable.
Conclusion
Here, the state trial court determined that Timmerman
was unavailable to testify based on her documented physical
illness. At that time, no one disputed her inability to testify.
The state trial court further determined that Timmerman had
been subjected to a full cross-examination by Mr. Berkman’s
attorney during his first trial. It therefore concluded that

49 In his reply brief, Mr. Berkman maintains that the state appellate court
decision not only unreasonably applied the law, but also “was based on
an unreasonable determination of the facts in light of the evidence pre-
sented in the State court proceeding.” See Reply Br. 3 (quoting 28 U.S.C.
§ 2254(d)(2)). Even if this argument had been preserved in his opening
brief, see supra note 45, it would be meritless. “A state court’s factual de-
terminations are presumed correct, and the petitioner must rebut that pre-
sumption by clear and convincing evidence.” Cal v. Garnett, 991 F.3d 843,
849 (7th Cir. 2021) (citing 28 U.S.C. § 2254(e)(1)). Mr. Berkman does not
acknowledge this standard, much less satisfy it. Our own review of the
record reveals that the state appellate court fairly summarized the events
that transpired in the state trial court. It recognized that the state trial court
was in a superior position to assess Timmerman’s ability to testify. See
Berkman, 976 N.E.2d at 75. Mr. Berkman has come forward with nothing
to convince us that the state appellate court’s ruling “omitted, mischarac-
terized, or unjustifiably minimized critical evidence.” Reply Br. 3. Conse-
quently, there is no basis for granting relief under § 2254(d)(2).
Because Mr. Berkman has not established a constitutional error, we
have no occasion to consider whether that error “had a substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993).
No. 21-1567 27

Crawford did not prohibit the admission of Timmerman’s
prior testimony. Relying on Crawford, the state appellate court
affirmed. Neither the reasoning employed by the state appel-
late court nor the result it reached is contrary to or unreason-
ably applies established Supreme Court law. We therefore af-
firm the district court’s denial of Mr. Berkman’s petition for
habeas.
AFFIRMED