James Hinkle v. Ron Neal

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 21‐2067
JAMES E. HINKLE,
Petitioner‐Appellant,
v.

RON NEAL, Warden
Respondent‐Appellee.
____________________

Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:19‐cv‐00577 — Robert L. Miller, Jr., Judge.
____________________

ARGUED JANUARY 13, 2022 — DECIDED OCTOBER 13, 2022
____________________

Before HAMILTON, BRENNAN, and JACKSON‐AKIWUMI, Cir‐
cuit Judges.
BRENNAN, Circuit Judge. James Hinkle is serving a 42‐year
prison sentence after an Indiana jury convicted him of sex‐
ually molesting his minor nephew, S.B., who testified at trial.
On appeal from the denial of his habeas corpus petition under
28 U.S.C. § 2254, Hinkle argues his constitutional right to pre‐
sent a complete defense was violated when the state trial court
excluded evidence of S.B.’s drug use. Because the Court of
2 No. 21‐2067

Appeals of Indiana did not unreasonably apply federal con‐
stitutional law in upholding the exclusion of that evidence,
we affirm.
I
In 2004, S.B. was 13 years old and lived with his mother in
Michigan. That summer, S.B. visited his extended family in
Elkhart, Indiana. On at least one occasion during this trip,
S.B.’s uncle, Hinkle, isolated and molested him. Hinkle mo‐
lested S.B. again during another trip to Indiana the following
summer.
As he grew older, S.B. began using illegal drugs. By the
time he was 17, he used opiates and marijuana regularly and
had experimented with heroin. In 2008, S.B.’s family learned
of his drug use and confronted him. Hinkle was not present
at this meeting. S.B. admitted he used narcotics and also re‐
vealed that Hinkle had molested him. S.B.’s family reported
Hinkle to the police.
The State charged Hinkle with child molesting, sexual
misconduct with a minor, and being a repeat sexual offender.
At a pretrial conference, Hinkle’s counsel opposed a motion
in limine to exclude evidence of S.B.’s drug use, arguing the
evidence was relevant to show S.B.’s motive to fabricate his
allegations against Hinkle. The trial court ruled that it would
not allow evidence of S.B.’s drug use unless offered to show
that it interfered with his ability to recall relevant events, but
it invited Hinkle’s counsel to raise the issue again during trial.
At trial, S.B. testified that Hinkle had molested him more
than once. On cross‐examination, Hinkle’s counsel raised the
issue of S.B.’s drug use in an offer of proof outside the jury’s
presence. She argued that S.B. had falsely accused Hinkle to
No. 21‐2067 3

avoid facing consequences from his family when they con‐
fronted him for using narcotics.
During this offer of proof, S.B. testified that when his fam‐
ily confronted him in 2008, he did not consider it to be “quite
an intervention.” Instead, he characterized the meeting as
“more [of] an open family discussion about [his] drug use. It
was just an open discussion.” During the meeting, S.B. was
informed that a family member would be monitoring him
more closely. When asked whether he was told he would be
sent to a drug rehabilitation program, S.B. stated that “the op‐
tion was being explored,” but that “it wasn’t like you’re going,
like you’re going to rehab, bud.” S.B. added that he did not
know “[w]here” or “if [he] was going” to a drug rehabilitation
program.
The trial court ultimately excluded S.B.’s drug use testi‐
mony. The court found “no connection between this family
meeting and the establishment of a motive to falsely accuse
[Hinkle] of molestation.” After the court’s ruling, the jury re‐
turned and heard impeachment evidence against S.B. This in‐
cluded that he “ha[d] a habit of playing family members
against each other,” and that he had been “manipulating” his
mother and was “really good at lying” to her and his grand‐
mother. S.B. also testified that he had convictions for credit
card fraud, auto theft, and retail fraud.
In the State’s rebuttal argument during closing, the prose‐
cutor alluded to the challenge S.B. faced by testifying, rhetor‐
ically asking why he would put himself through that difficult
process:
Do you think S.B. had fun here having every
failing pointed out to him? For a man as weak
4 No. 21‐2067

as he’s being portrayed, what would have been
the easiest thing for him to do? To say it didn’t
happen …. But instead he’s waited all the way
up to 2013 to get on the stand and to answer the
questions and be open to the humiliation and
ridicule, not only of the fact of the felony con‐
viction, but also the fact that he engaged in sex,
not just with another man but with his uncle. Do
you think that was fun for him? He easily could
have avoided all that.
The jury found Hinkle guilty of child molesting and sexual
misconduct with a minor. After being advised of his rights,
Hinkle then admitted to being a repeat sexual offender. The
trial court imposed an aggregate sentence of 42 years.
Following his sentence, Hinkle stayed his direct appeal
and pursued post‐conviction proceedings in state court under
Indiana’s Davis‐Hatton procedure.1 His petition for post‐con‐
viction relief alleged ineffective assistance of trial counsel,
which the trial court denied.
Hinkle appealed the denial of post‐conviction relief to the
Court of Appeals of Indiana. He raised four issues; the only
one before us is whether Hinkle was denied “the fundamental
right to due process,” and specifically the right to present a
complete defense, when the state trial court excluded

1 “Under Indiana’s Davis‐Hatton procedure, a prisoner may ‘suspend
his direct appeal to pursue an immediate petition for postconviction relief
for the purpose of developing a factual record to support the claim. The
direct appeal and collateral‐review appeal are then consolidated.’” Karr v.
Sevier, 29 F.4th 873, 884 (7th Cir. 2022), petition for cert. filed, No. 22‐4 (U.S.
June 30, 2022) (quoting Crutchfield v. Dennison, 910 F.3d 968, 975 (7th Cir.
2018)).
No. 21‐2067 5

evidence of S.B.’s drug use. As the federal district court
acknowledged, and as Hinkle’s counsel stated to us during
oral argument, Hinkle’s claim was presented to the state ap‐
pellate court as a violation of Hinkle’s right to present a com‐
plete defense—not as a Confrontation Clause claim.2 Hinkle
argued that he was “denied an opportunity to challenge the
credibility of S.B.,” and that S.B.’s accusations against Hinkle
“were made in order to deflect … disciplinary action by the
family; including, placing S.B. in an inpatient, out‐of‐state
drug facility.” In support of his argument, Hinkle relied heav‐
ily on Hyser v. State, an Indiana appellate decision addressing
the constitutional right to present a complete defense. 996
N.E.2d 443 (Ind. Ct. App. 2013).
The Court of Appeals of Indiana affirmed, holding that the
state trial court did not abuse its discretion by excluding evi‐
dence of S.B.’s drug use. Hinkle v. State, 97 N.E.3d 654, 658
(Ind. Ct. App. 2018). After a lengthy recitation of Hyser, the
state appellate court ruled that Hinkle’s case was distinguish‐
able. “Hinkle did not present any basis, other than specula‐
tion, to support his assumption that S.B. had invented the
allegations of molestation against Hinkle,” the court rea‐
soned. Id. at 664. Further, Hinkle’s theory was “factually mis‐
placed” because S.B. testified that he did not know his family

2 Oral Arg. at 8:25–9:52. When asked why this case does not present a
Confrontation Clause issue, Hinkle’s appellate counsel responded: “Based
upon how it was presented to the trial court in the state level and the ap‐
pellate court it was couched as a failure to – as a prohibition on a complete
defense.”
When pressed whether there is a distinction between cross‐examina‐
tion to probe motive and presenting a complete defense, Hinkle’s appel‐
late counsel said: “Mr. Hinkle contends it is more so of a complete defense
under the Sixth Amendment as opposed to merely a Confrontation issue.”
6 No. 21‐2067

“was considering consequences for his behavior, and, instead,
he thought ‘[i]t was just an open ... discussion’ with his family
about his use of drugs.” Id. (alteration in original).
Hinkle petitioned for transfer to the Indiana Supreme
Court. When that was unsuccessful, he filed a petition for a
writ of habeas corpus in federal district court. That court de‐
nied habeas relief, concluding that the state appellate court
had reached the merits of Hinkle’s federal constitutional chal‐
lenge and had not unreasonably applied federal law.
On appeal, Hinkle now argues that the Court of Appeals
of Indiana did not address his constitutional challenge, and
that in any event, his federal right to present a complete de‐
fense was violated by the exclusion of evidence about S.B.’s
drug use.
II
A
We begin with the standard of review. The district court’s
decision denying habeas relief is reviewed de novo. Carter v.
Duncan, 819 F.3d 931, 940 (7th Cir. 2016). Under the Antiter‐
rorism and Effective Death Penalty Act (“AEDPA”), a habeas
petition will be denied unless the state court’s adjudication
“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.” 28
U.S.C. § 2254(d)(1). This deferential standard applies only
when a state court adjudicates a claim “on the merits.” Id.
While a state court must reach the merits of the issue for
AEDPA deference to apply, Ҥ 2254(d) does not require a state
court to give reasons before its decision can be deemed to
have been ‘adjudicated on the merits.’” Harrington v. Richter,
No. 21‐2067 7

562 U.S. 86, 100 (2011). Instead, “[w]hen a federal claim has
been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the
claim on the merits.” Id. at 99; see Johnson v. Williams, 568 U.S.
289, 301 (2013) (“[A] federal habeas court must presume that
the federal claim was adjudicated on the merits”). This
presumption is “strong,” but it “can in some limited circum‐
stances be rebutted.” Johnson, 568 U.S. at 301. “When the evi‐
dence leads very clearly to the conclusion that a federal claim
was inadvertently overlooked in state court, § 2254(d) entitles
the prisoner to an unencumbered opportunity to make his
case before a federal judge.” Id. at 303. We presume that a state
court adjudicated a claim on the merits unless the evidence
very clearly shows that “the state court relied wholly on state
law grounds for its decision or expressly declined to consider
the claim.” Minnick v. Winkleski, 15 F.4th 460, 467 (7th Cir.
2021).
The parties agree that Hinkle raised the constitutional
right to present a complete defense before the Court of Ap‐
peals of Indiana. But Hinkle contends the state appellate court
did not decide his federal claim on the merits and advocates
that we review the issue de novo. Hinkle does not suggest that
the state appellate court expressly declined to consider his
constitutional claim; nor could he, as that court took no such
position. Instead, Hinkle argues that the state appellate
court’s decision relied wholly on state evidentiary rules. His
sole basis for this argument is the standard of review used by
the state appellate court. Hinkle maintains that, under
Indiana law, evidentiary issues are left to the trial court’s dis‐
cretion, but appellate courts review alleged constitutional vi‐
olations de novo. The state appellate court’s application of a
8 No. 21‐2067

deferential standard in this case is “clear evidence,” Hinkle
claims, that the court ignored his constitutional contention.
Hinkle’s argument fails to “very clearly” show that his
constitutional challenge was overlooked. Johnson, 568 U.S. at
303. To begin, Hinkle couched his claim as a constitutional is‐
sue before the state court. In Hinkle’s words, his argument
“was replete with references to his constitutional right to pre‐
sent a complete defense and citations to federal cases as per‐
tinent authority.” And yet, as his counsel admitted during
oral argument, it was Hinkle who instructed the state appel‐
late court in his briefing to review his constitutional claim for
abuse of discretion.3 It is therefore entirely plausible that the
state appellate court applied a deferential standard of review
because Hinkle invited the court to do so—not because it ig‐
nored his constitutional claim. And “a party cannot complain
of errors which it has committed, invited, induced the court
to make, or to which it consented.” Black v. Wrigley, 997 F.3d
702, 709 (7th Cir. 2021) (quoting Sanchez v. City of Chicago, 880
F.3d 349, 360 (7th Cir. 2018)); see Brewington v. State, 7 N.E.3d
946, 977 (Ind. 2014) (noting the invited error doctrine applies
to constitutional errors). This possibility alone forecloses Hin‐
kle’s ability to “very clearly” show his constitutional claim
was ignored.
In any event, we doubt that the state appellate court ap‐
plied the wrong standard of review. A brief discussion of the
right to present a complete defense shows why. In Chambers

3 Oral Arg. At 3:50–4:33; Corrected Brief of Appellant at 26, Hinkle v.
State, 97 N.E.3d 654 (Ind. Ct. App. 2018) (No. 20A03–1703–PC–690). We
also note that we may take judicial notice of state court dockets. 520 S.
Mich. Ave. Assocs., Ltd. v. Shannon, 549 F.3d 1119, 1137 n.14 (7th Cir. 2008).
No. 21‐2067 9

v. Mississippi, the Supreme Court held that a defendant has a
right to “a fair opportunity to defend against the State’s accu‐
sations.” 410 U.S. 284, 294 (1973). This guarantee of “‘a mean‐
ingful opportunity to present a complete defense,’” the Court
has explained, is “rooted directly in the Due Process Clause
of the Fourteenth Amendment or in the Compulsory Process
or Confrontation clauses of the Sixth Amendment.” Crane v.
Kentucky, 476 U.S. 683, 690 (1986) (citation omitted) (quoting
California v. Trombetta, 467 U.S. 479, 485 (1984)). But this right
does not permit a criminal defendant to admit any and all ev‐
idence:
While the Constitution thus prohibits the exclu‐
sion of defense evidence under rules that serve
no legitimate purpose or that are disproportion‐
ate to the ends that they are asserted to promote,
well‐established rules of evidence permit trial
judges to exclude evidence if its probative value
is outweighed by certain other factors such as
unfair prejudice, confusion of the issues, or po‐
tential to mislead the jury.
Holmes v. South Carolina, 547 U.S. 319, 326 (2006). When mak‐
ing these evidentiary decisions, the Constitution leaves trial
judges “‘wide latitude’ to exclude evidence” in accordance
with these deep‐rooted evidentiary rules. Crane, 476 U.S. at
689 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
In recognition of these principles, our court has determined
that one necessary condition for a successful Chambers claim
is that the disputed evidence must be “reliable and trustwor‐
thy.” Kubsch v. Neal, 838 F.3d 845, 858 (7th Cir. 2016) (en banc).
And “[o]ne, though not the only, way that reliability and
trustworthiness can be demonstrated is to show that the
10 No. 21‐2067

evidence closely resembles evidence that would be admissi‐
ble under the state’s rules.” Id.
Given this law, we cannot definitively say that the state
appellate court applied the wrong standard of review under
Indiana law. Hinkle correctly observes that although Indiana
appellate courts review a trial court’s decisions on the admis‐
sibility of evidence for abuse of discretion, de novo review
generally applies when “a constitutional violation is alleged.”
Dycus v. State, 108 N.E.3d 301, 303–04 (Ind. 2018). But,
importantly, Indiana courts review for abuse of discretion ev‐
identiary decisions that a defendant claims violate his consti‐
tutional right to present a complete defense. Ramirez v. State,
174 N.E.3d 181, 194 (Ind. 2021) (reviewing for abuse of discre‐
tion a trial court’s decision to exclude evidence when the de‐
fendant argued the exclusion deprived him of “a meaningful
opportunity to present a complete defense”).4 In fact, the only
standard of review referenced in Hyser—a case both parties
agree addressed the right to present a complete defense—was
abuse of discretion. 996 N.E.2d at 448. If evidence is excluded
as unfairly prejudicial, confusing, or potentially misleading—
a decision reviewed deferentially—that exclusion cannot vio‐
late the right to present a complete defense. See Holmes, 547
U.S. at 326; Kubsch, 838 F.3d at 858. Therefore, the state appel‐
late court’s application of a deferential standard of review
does not clearly show it ignored Hinkle’s constitutional claim.

4 Neither party cites Ramirez. There, the defendant presented a federal

constitutional “complete defense” claim, citing Chambers, our decision in
Kubsch, and other related authorities. Appellant’s Br. at 66–68, Ramirez v.
State, 174 N.E.3d 181 (Ind. 2021) (No. 20S‐LW‐430). It was that claim that
the Indiana Supreme Court reviewed for abuse of discretion.
No. 21‐2067 11

We make one final point on the standard of review: Hin‐
kle’s state appellate court brief relied heavily on Hyser as a
basis for his constitutional claim, and the Court of Appeals of
Indiana went to great lengths to address and distinguish that
decision. Hinkle insists that court’s treatment of Hyser ig‐
nored the case’s constitutional analysis. But the quoted
portions of Hyser dealt with the relevance and reliability of
excluded evidence, which are prerequisites for a complete de‐
fense claim. The state appellate court then contrasted the facts
in Hyser with those of Hinkle’s case, concluding that Hinkle
had not established “any basis, other than speculation, to sup‐
port his assumption that S.B. had invented the allegations of
molestation against Hinkle.” That court also decided Hinkle’s
theory was “factually misplaced” because S.B. testified that he
was unaware that “his family was considering consequences
for his behavior.” In other words, there was no basis to con‐
nect the family meeting on S.B.’s drug use with a motive for
S.B. to lie about Hinkle’s sexual abuse. These considerations
go directly to a key element of a complete defense claim: the
degree to which the proffered evidence is essential to the de‐
fendantʹs ability to present a defense. Kubsch, 838 F.3d at 858.
Because Hinkle has not “very clearly” shown that the state
appellate court ignored his constitutional claim, we presume
that it was adjudicated on the merits. Johnson, 568 U.S. at 303.
The state appellate court’s decision is thus entitled to AEDPA
deference.
B
1
Under AEDPA, Hinkle seeks to collaterally challenge the
state resolution of his federal claim. An application for a writ
12 No. 21‐2067

of habeas corpus may not be granted unless the adjudication
of the petitioner’s claim “resulted in a decision that was con‐
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.”5 28 U.S.C. § 2254(d)(1). This strict stand‐
ard “reflects the view that habeas corpus is a guard against
extreme malfunctions in the state criminal justice systems, not
a substitute for ordinary error correction through appeal.”
Minnick, 15 F.4th at 468 (quoting Harrington, 562 U.S. at 102–
03). As a result, relief is precluded unless the petitioner can
“demonstrate that the state court’s ruling was so lacking in
justification that there was an error well understood and com‐
prehended in existing law beyond any possibility for fair‐
minded disagreement.” Westray v. Brookhart, 36 F.4th 737, 746
(7th Cir. 2022) (quoting Adorno v. Melvin, 876 F.3d 917, 921 (7th
Cir. 2017)).
In Kubsch, we analyzed the Supreme Court’s Chambers line
of cases to determine when the exclusion of evidence violates
the right to present a complete defense. 838 F.3d at 854–58.
Our court deduced five factors present in successful Chambers
challenges. First, “the cases in which the Chambers principle
has prevailed ‘dealt with the exclusion of evidence … or the
testimony of defense witnesses, … [not] a defendant’s ability
to present an affirmative defense.’” Id. at 858 (alterations in
original) (quoting Gilmore v. Taylor, 508 U.S. 333, 343 (1993)).
Second, “the cases in which the Court has applied Cham‐
bers … have involved murder and often the death penalty.”
Id. Third, and as already discussed, “the proffered evidence

5Hinkle does not argue that the decision “was based on an unreason‐
able determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2).
No. 21‐2067 13

must be essential to the defendant’s ability to present a de‐
fense; it cannot be cumulative, impeaching, unfairly prejudi‐
cial, or potentially misleading.” Id. Fourth, “the evidence
must be reliable and trustworthy.” Id. And fifth, “the rule can‐
not operate in an arbitrary manner in the case at hand.” Id.
Hinkle insists that, even if we decide that the state court
adjudicated his constitutional challenge on the merits, that
court did not explain its analysis of the constitutional issue.
When that happens, Harrington instructs us “to postulate ar‐
guments or theories that could have supported the state court’s
decision and then defer to the bottom‐line decision unless it
was an unreasonable application of federal law.” Whatley v.
Zatecky, 833 F.3d 762, 774 (7th Cir. 2016) (citing Harrington, 562
U.S. at 102).
We need not posit arguments in support of the state appel‐
late court’s decision. That court expressly found that Hinkle
had not presented “any basis, other than speculation,” to con‐
nect the family discussion on S.B.’s drug use to a motive to
bring false accusations against Hinkle. So the proffered evi‐
dence was not “essential to the defendant’s ability to present
a defense” and was, at most, “merely impeaching.” Kubsch,
838 F.3d at 858, 860. In fact, the state appellate court
concluded that Hinkle’s theory was contrary to the evidence
because S.B.’s testimony revealed he did not know that his
family considered sending him to a rehabilitation program for
his drug use. Rather, S.B. characterized his talk with family as
“just an open … discussion.” So Hinkle’s defense theory was
“potentially misleading.” Id. Thus, the state appellate court
upheld the trial court’s conclusion that “Hinkle had not
demonstrated a connection between S.B.’s family discussion
on his drug use and a motive for S.B. to falsely accuse Hinkle
14 No. 21‐2067

of molestation.” Hinkle fails to respond to this conclusion or
offer any argument that the state appellate court’s decision
“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)(2). He suggests only that Chambers pre‐
vents such state evidentiary considerations from playing a
role in analyzing a defendant’s constitutional rights.
But Kubsch held otherwise because “Chambers itself” re‐
quired evidence to be “reliable and trustworthy.” 838 F.3d at
858. That can be shown when “the evidence closely resembles
evidence that would be admissible under the state’s rules.” Id.
Only when evidentiary rules exclude evidence and “serve no
legitimate purpose or … are disproportionate to the ends that
they are asserted to promote” is the right to present a com‐
plete defense infringed. Holmes, 547 U.S. at 326. And Hinkle
has not suggested that Indiana’s evidentiary rules, requiring
a reliable evidentiary foundation to pursue a theory of im‐
peachment, fail on either front. He has thus failed to show that
the state appellate court’s decision was an unreasonable ap‐
plication of federal law.
If we were to offer additional arguments on the state
court’s behalf, as Hinkle invites us to, there are several. This
case does not involve murder or the death penalty, which
places it outside those cases where the Court has applied
Chambers. Kubsch, 838 F.3d at 858. And other impeachment ev‐
idence was admitted. Hinkle had already attacked S.B.’s cred‐
ibility by pointing to S.B.’s previous convictions for credit
card fraud, auto theft, and retail fraud, along with testimony
that S.B. played family members against one another and was
“really good at lying to” his mother and grandmother. “Given
the extensive evidence [Hinkle] was allowed to introduce, the
No. 21‐2067 15

incremental impact of the excluded evidence would have
been slight”—or so the state courts could reasonably have
concluded. Sarfraz v. Smith, 885 F.3d 1029, 1038 (7th Cir. 2018).
Hinkle submits that, even if the evidence was impeaching,
it can still constitute a Chambers violation. Even if true, that is
beside the point. The question is whether the impeachment
evidence is also “essential” to the defendant’s ability to
present a defense. Kubsch, 838 F.3d at 858. Only then may its
exclusion constitute a constitutional violation. Id. at 858. For
example, in Chambers, the defendant on trial for murder
sought to impeach one of his witnesses using that witness’s
prior sworn confession and three other admissions of guilt, all
of which would have shown that the witness had committed
the killing. 410 U.S. at 289.
But Hinkle’s impeachment evidence is qualitatively differ‐
ent than the evidence in Chambers. Hinkle insists the excluded
evidence was needed to rebut the prosecutor’s suggestion
that S.B. lacked a motive to lie. Yet, crucially, S.B.’s character‐
ization of the family meeting and drug rehabilitation discus‐
sion does not exculpate Hinkle. Rather, it forms the basis for
an unfounded, speculative, and counterfactual theory about
S.B.’s motives to falsely accuse his uncle of molestation. The
state courts could reasonably conclude that, unlike the evi‐
dence in Chambers, the evidence here is akin to “cumulative,
impeaching, unfairly prejudicial, or potentially misleading”
evidence, the exclusion of which does not offend Chambers.
Kubsch, 838 F.3d at 858.
2
The dissenting opinion agrees that AEDPA deference ap‐
plies here, but it concludes that the decision of the Court of
16 No. 21‐2067

Appeals of Indiana is an unreasonable application of Su‐
preme Court precedent. To do so, the dissent recharacterizes
Hinkle’s challenge as under the Confrontation Clause, rather
than a case presented and argued on the right to present a
complete defense. That reframing is not supported by the rec‐
ord, and we view the facts in this case and the applicable law
differently than our dissenting colleague.
First, in his habeas petition, Hinkle has always contested a
violation of his right to present a complete defense. The dis‐
sent contends Hinkle did not waive a characterization of his
habeas petition as raising a Confrontation Clause violation.
But references to that constitutional provision in underlying
pleadings do not overcome how Hinkle presented the case in
the district court and how he has argued the case to us.
As the district court noted, “these thoughts [about the
Confrontation Clause] are pertinent only in passing because
Mr. Hinkle didn’t present a Confrontation Clause claim to the
state courts. He relied on a distinct constitutional principle …
the right to present a complete defense.” And the district
court granted the Certificate of Appealability only “on the
claim that the trial court violated the right to present a com‐
plete defense.” In this court, Hinkle argued only that his con‐
stitutional right to present a complete defense was denied.6
Second, Hinkle’s theory of impeachment fails to explain
how S.B.’s accusations of sexual molestation would allow the
victim to avoid drug treatment, thereby supplying S.B. with a
motive to lie. The state appellate court held that Hinkle was

6Hinkle’s single federal appellate brief references the Sixth Amend‐
ment’s Confrontation Clause twice but does so only as one of the sources
of the guarantee to present a complete defense. R. 6 at 14, 16.
No. 21‐2067 17

not allowed to conjecture a motive for the victim to lie that
was not supported by the evidence. The family’s “open dis‐
cussion” concerned how they would take care of the victim’s
drug problem, which remained whether or not Hinkle had
sexually molested the victim. And in any case, any speculative
motive of S.B. to deflect attention from himself or to redirect
the conversation is different in nature from a motive to fabri‐
cate sexual abuse allegations.
The state appellate court concluded that the conversation
about the victim’s drug use was not related to any motive to
contrive the allegations against Hinkle: “[T]here is no ques‐
tion of retaliation and Hinkle did not present any basis, other
than speculation, to support his assumption that S.B. had in‐
vented the allegations of molestation against Hinkle.” This is
far different than those cases considering the right to present
a complete defense when the excluded evidence was unques‐
tionably relevant. See, e.g., Holmes, 547 U.S. at 321–22
(improper exclusion of evidence of a third party’s guilt);
Chambers, 410 U.S. 284, 286–87 (1983) (improper exclusion of
evidence of a third‐party perpetrator who had confessed to
the defendant’s attorneys).7
The dissent points to a “motive to deflect attention from
himself.” But S.B. testified during the offer of proof, and the

7 Under the Confrontation Clause cases that the dissent presents, trial
judges have “wide latitude” to curtail cross‐examination on matters that
would confuse the issues or are only “marginally relevant.” Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986); see also Olden v. Kentucky, 488 U.S. 227,
232 (1988); Davis v. Alaska, 415 U.S. 308, 316 (1974). Given the evidence at
issue here, the state appellate court’s decision was not an unreasonable
application of federal confrontation law either.
18 No. 21‐2067

state courts concluded that the victim denied he was facing
consequences beyond a different uncle, Swan Mishler, super‐
vising him more carefully. The evidence showed that the vic‐
tim “did not know” that he was “facing consequences for his
own drug use.” So there was no factual basis to connect the
open family discussion about the victim’s drug use with any
motive for S.B. to lie that Hinkle had sexually molested him.
Without this connection, the state courts could reasonably
conclude that allowing the jury to consider the victim’s drug
use could create unfair prejudice and confuse the issues—an
Indiana Rule of Evidence 403 judgment call on which we de‐
fer to the trial court. Our dissenting colleague’s evaluation of
Kubsch’s third factor thus fails to engage with, much less defer
to, the analyses of the Indiana courts.
The dissent also overreads this court’s decision in Fieldman
v. Brannon, 969 F.3d 792 (7th Cir. 2020), as “voic[ing] skepti‐
cism about whether the Kubsch factors should apply in com‐
plete‐defense cases when the excluded evidence implicates
other constitutional rights and was excluded for reasons other
than a state’s hearsay rules.” In Fieldman, this court affirmed
the district court’s grant of habeas relief under 28 U.S.C.
§ 2254(d)(1) when Illinois state courts had found irrelevant
and excluded testimony from the defendant about his actions
and concerned his intent to commit the crime of which he was
charged. 969 F.3d at 796–99, 804–06. This court concluded that
the state court had limited the defendant from discussing his
state of mind on the day of the crime. Id. at 805. “[T]he ex‐
cluded testimony about events leading up to the recorded
meeting went straight to the heart of his claim of innocence.”
Id. Without the excluded testimony from the defendant him‐
self, “the jury lacked vital context to weigh Fieldman’s credi‐
bility about his lack of intent.” Id.
No. 21‐2067 19

Such evidence is qualitatively different—as discussed
above—from the speculative victim impeachment evidence at
issue here. Fieldman is not “a limitation on the Kubsch frame‐
work,” as the dissenting opinion concludes. Indeed, this court
in Fieldman specifically limited its distinguishment of the
Kubsch five‐factor framework to defendant Fieldman’s case,
which concerned his right to testify in his own defense. Id. at
807 n.5.8 Kubsch did not apply because the case “announced
its framework when discussing Chambers v. Mississippi … and
applied principles distilled from Chambers and related cases
to a state’s application of its hearsay rule to exclude critical
witness testimony.” Id. Of course, Hinkle relies on Chambers
to challenge a state court evidentiary ruling that excluded
part of a victim’s testimony.
The other reasons our dissenting colleague offers for re‐
versal are unconvincing.
Our colleague concludes that Hinkle had the right to pre‐
sent evidence of the victim’s bias and motive far broader than
the state trial court allowed him, citing Davis v. Alaska, 415
U.S. 308 (1974)). But in Davis—a case interpreting the Con‐
frontation Clause, not the right to present a complete defense,
415 U.S. at 309—the evidentiary ruling eliminated impeach‐
ment in its entirety and did so where the motive to fabricate
was concrete. Id. at 318. There, the key prosecution witness
was a juvenile probationer adjudicated of burglary who, “un‐
der fear of possible probation revocation,” had every motive

8 Interestingly, this court still found Kubsch “helpful” and applied that

decision’s “general discussion of circumstances in which a state eviden‐
tiary rule should yield to a defendant’s right to present a defense.” Field‐
man, 969 F.3d at 807 n.5.
20 No. 21‐2067

to “shift suspicion away from himself as one who robbed” a
bar. Id. at 309–11. Here, as the Indiana trial and appellate
courts reasonably concluded, Hinkle’s theory lacked a factual
basis to connect the family discussion on S.B.’s drug use with
a motive to fabricate. Perhaps S.B. wanted to deflect attention
away from himself by talking about Hinkle’s sexual abuse.
But again, a motive to redirect a conversation is not a motive
to fabricate. Any connection between the two is mere “specu‐
lation,” as the state appellate court concluded.
The dissent also contends that Hinkle had a right to offer
motive evidence even when, if credited, it did not conclu‐
sively establish the defendant’s innocence. This contention
runs contrary to the third Kubsch factor: “[T]he proffered evi‐
dence must be essential”—not just possibly helpful—“to the
defendantʹs ability to present a defense.” 838 F.3d at 858. Pos‐
sibly impeaching evidence generally will not meet this test. Id.
(“[I]t cannot be … impeaching.”) Even Fieldman, relied upon
in the dissenting opinion, acknowledges the essentiality re‐
quirement. Fieldman, 969 F.3d at 804 (explaining how the ex‐
cluded testimony was “especially relevant” to a “crucial” part
of the petitioner’s defense).
Because we are bound by AEDPA deference, we will not
overturn the state trial court’s reasonable determination that
Hinkle’s motive theory was speculative, from which it follows
that the excluded evidence was not essential to Hinkle’s de‐
fense. Hinkle had a right to impeach the victim, and he did.
The trial court admitted substantial impeachment evidence,
including the victim’s prior convictions and propensity for ly‐
ing and manipulation. But Hinkle did not have the right to
present evidence supporting any theory of impeachment, no
matter how speculative. The Indiana courts applied the state’s
No. 21‐2067 21

evidentiary rules, including relevance, to exclude evidence of
the family meeting and did not do so in a manner that was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su‐
preme Court of the United States.” 28 U.S.C. § 2254(d)(1).
3
Finally, even had the Indiana state courts unreasonably
applied federal law, any error was harmless. “For reasons of
finality, comity, and federalism, habeas petitioners ‘are not
entitled to habeas relief based on trial error unless they can
establish that it resulted in actual prejudice.’” Davis v. Ayala,
576 U.S. 257, 267 (2015) (quoting Brecht v. Abrahamson, 507 U.S.
619, 637 (1993)). A state is “not to be put to th[e] arduous task
[of retrying a defendant] based on mere speculation that the
defendant was prejudiced by trial error.” Id. at 268 (alterations
in original) (quoting Calderon v. Coleman, 525 U.S. 141, 146
(1998) (per curiam)). So, “relief is proper only if the federal
court has ‘grave doubt about whether a trial error of federal
law had substantial and injurious effect or influence in deter‐
mining the jury’s verdict.’” Id. at 267–68 (quoting OʹNeal v.
McAninch, 513 U.S. 432, 436 (1995)).
We have no such grave doubt. Any error was harmless
given that other portions of S.B.’s testimony were corrobo‐
rated by other witnesses, and the jury had plenty of evidence
from which they could assess S.B.’s credibility, including his
prior convictions, manipulative behavior, and history of lying
to his relatives. The exclusion of S.B.’s drug use or the family
meeting—without a factual basis to support Hinkle’s theory
that S.B. fabricated accusations against Hinkle in an attempt
to avoid drug rehabilitation—cannot show actual prejudice.
22 No. 21‐2067

* * *
For these reasons, we AFFIRM the judgment of the district
court.
No. 21‐2067 23

JACKSON‐AKIWUMI, Circuit Judge, dissenting. James Hin‐
kle’s nephew, S.B., accused Hinkle of molestation. S.B.’s alle‐
gations were the sole impetus for the charges against Hinkle,
and S.B.’s uncorroborated testimony ended up being the only
evidence against Hinkle at trial. But the state court barred the
jury from hearing one crucial detail about S.B.’s claims: S.B.
first accused Hinkle of wrongdoing during a family meeting
about S.B.’s own excessive drug use. According to Hinkle, this
family meeting gave S.B. a motivation to fabricate the sexual‐
assault allegations because S.B. wanted to redirect his family’s
attention and avoid drug rehab or other consequences. Hinkle
argues that by barring this evidence, the state courts unrea‐
sonably denied him of his right to present a complete defense
in contravention of clearly established federal law.
Respectfully, I disagree with the majority opinion that the
factors from Kubsch v. Neal, 838 F.3d 845 (7th Cir. 2016) (en
banc), control our assessment of Hinkle’s claim. As our court
explained in a more recent decision, the Kubsch framework
was tailored to assess claims in which a state’s hearsay rules
excluded critical witness testimony. Fieldman v. Brannon, 969
F.3d 792, 807 n.5 (7th Cir. 2020). Thus, Kubsch has limited ap‐
plicability when the evidence at issue was excluded for rea‐
sons other than a state’s hearsay rules or when the evidence
implicates other constitutional rights beyond the complete‐
defense right. Here, the Indiana courts excluded evidence of
S.B.’s motion on relevancy—not hearsay—grounds. And alt‐
hough Hinkle’s current counsel frames the case in terms of
Hinkle’s right to present a complete defense, the crux of Hin‐
kle’s claim is that he should have been allowed to present ev‐
idence of S.B.’s motive for providing false testimony—a quin‐
tessential defense ingrained in the Confrontation Clause. Ac‐
cordingly, we should draw from the Supreme Court’s
24 No. 21‐2067

Confrontation Clause precedent to determine whether Hin‐
kle’s right to impeach S.B. with this evidence was clearly es‐
tablished.
I would hold that the exclusion of this evidence was con‐
trary to clearly established federal law confirming a defend‐
ant’s right to confront his accusers. Hinkle did not, as the ma‐
jority opinion states, merely wish to present evidence that
S.B.’s family held a meeting about his drug use. He wanted to
present evidence about the timing of S.B.’s allegations, from
which the jury could have inferred a motive for S.B. to falsely
accuse Hinkle. Because the right to expose a witness’s moti‐
vation to lie is at the very core of the Supreme Court’s Con‐
frontation Clause precedent, Hinkle should be entitled to ha‐
beas relief. On that basis, I respectfully dissent.
I

I begin with the factual and procedural history of this case.
I defer to the state court’s version of events (Hinkle has not
made any attempt to provide clear and convincing evidence
to rebut the state court’s findings), and I supplement the state
court’s recitation of the facts with other undisputed facts that
provide background. See 28 U.S.C. § 2254(e)(1); Gilbreath v.
Winkleski, 21 F.4th 965, 968 (7th Cir. 2021).
A. Background Facts and Trial
During the relevant time, Hinkle’s nephew, S.B., lived in
Michigan with his mother. Hinkle v. State, 97 N.E.3d 654, 659
(Ind. Ct. App. 2018). S.B.’s extended family, including Hinkle,
his other uncle Swan, and S.B.’s grandmother, all lived in In‐
diana. During his early teens, S.B. regularly visited the
No. 21‐2067 25

Hinkles and his other family in Indiana. The jury found that
during at least two of these family visits, Hinkle molested S.B.
As S.B.’s teen years progressed, he became a heavy drug
user. By the age of 17, he used marijuana and opiates on a
near‐daily basis, and he had tried heroin on several occasions.
When S.B.’s mother became concerned about changes in S.B.’s
behavior, she asked family members to help address the is‐
sues while S.B. visited family in Indiana for the summer. S.B.’s
mother stayed in Michigan.
In Indiana, S.B.’s grandmother and uncle Swan sat S.B.
down for a family meeting about his drug use. Hinkle was
absent. S.B.’s family told S.B. that they would need to take
steps to address his drug problems, and they revealed that
S.B.’s mother was looking into options for drug rehab. In re‐
sponse, S.B. alleged for the first time that Hinkle had molested
him years earlier. The topic of the family meeting shifted from
S.B.’s drug use to Hinkle’s misconduct. The family contacted
the police, and the state charged Hinkle with child molesting,
sexual misconduct with a minor, and being a repeat sexual
offender. Id. at 660.
The trial was short. Only three witnesses testified, and the
only incriminating evidence came from S.B., who testified
about the two occasions when Hinkle molested him. Id. S.B.’s
grandmother also testified, confirming that S.B. had spent
time with the Hinkle family. But she had no direct knowledge
of what happened during those visits or Hinkle’s actions. Fi‐
nally, Hinkle’s wife testified that although S.B. had visited the
Hinkle household, Hinkle was not home at that time.
Hinkle’s defense at trial was that S.B. fabricated the alle‐
gations. His theory was that, when faced with the possibility
26 No. 21‐2067

of going to rehab, S.B. launched accusations against Hinkle to
deflect attention from himself and avoid negative conse‐
quences. Accordingly, during S.B.’s cross‐examination, Hin‐
kle sought to introduce evidence about what he characterized
as an intervention into S.B.’s drug use and the suspect timing
of S.B.’s accusations. As an offer of proof, outside the presence
of the jury, Hinkle cross‐examined S.B. to demonstrate what
impeachment evidence he could elicit.
During this proffer, S.B. contested defense counsel’s use of
the word “intervention,” testifying that:

Yeah, not quite an intervention. It wasn’t
like—sit me down, you’re going to like rehab,
like that. It was more, you know. Like them
letting me know that they knew I had had
problems, and what are we going to do about
it kind of conversation that, the whole—you
know, an open conversation about my drug
use.

Nonetheless, S.B. conceded that his grandmother told him
during this meeting that his uncle Swan would step in to mon‐
itor him “very, very closely” while he was in Indiana. He also
testified that he learned during the meeting that his mother
was looking into rehab options, though he did not know for
sure whether his family would actually send him to rehab.
S.B. also described the moment in which he first levied ac‐
cusations against Hinkle. S.B. said that toward the end of this
family meeting, after S.B. learned that his mother was consid‐
ering rehab options, he asked to call his mother. His grand‐
mother and uncle refused because, as S.B. conceded, he had a
No. 21‐2067 27

habit of playing family members against each other. S.B. said
he insisted that he needed to talk to his mom about “some‐
thing.” But when they still refused him a phone call, S.B. tes‐
tified, he disclosed his accusations about Hinkle to his uncle.
Despite this proffer, the trial court excluded any testimony
about S.B.’s drug use or the circumstances surrounding S.B.’s
initial accusation against Hinkle. The court explained that
Hinkle was not present during the family meeting, and that it
could see “no connection” between the meeting and a motive
to fabricate an accusation. The jury thus never heard that S.B.
accused Hinkle immediately after S.B. learned that his family
may send him to rehab, and only after his family refused to
let him call his mother (to discuss the family’s plan perhaps).
The court did, however, allow Hinkle to attack S.B.’s cred‐
ibility with other evidence during cross‐examination. Hinkle
submitted evidence of S.B.’s prior convictions for theft, and
he elicited testimony that S.B. had a “habit of playing family
members against each other” and was “really good at lying”
to his mother and grandmother. Likewise, the court allowed
Hinkle to cross‐examine S.B.’s grandmother with questions
about whether she told S.B. that his uncle Swan would “be
supervising him.” But Hinkle was not allowed to elicit any
information to elaborate upon this “supervision.” And alt‐
hough this evidence may have impugned S.B.’s character or
suggested that S.B. was untrustworthy in general, Hinkle re‐
mained barred from presenting any evidence that S.B. had a
motive to lie about the molestations.
During closing argument, the prosecutor capitalized on
Hinkle’s inability to present any motive for S.B. to lie. She em‐
phasized how embarrassing the accusations must be for S.B.,
and how it would have been easier for S.B. to just pretend
28 No. 21‐2067

nothing happened. Hinkle was unable to rebut this argument
with any explanation for S.B.’s motive, and the jury found
him guilty. Hinkle, 97 N.E.3d at 660. The court sentenced him
to 42 years in prison.
B. State Appeal and District Court Proceedings
Hinkle brought a combined direct appeal and petition for
state postconviction relief. Among other claims, he argued
that the trial court had violated his constitutional rights when
it excluded testimony of S.B.’s motive to lie. As the majority
opinion highlights, and as Hinkle’s current counsel noted at
oral argument, Hinkle primarily couched his arguments on
direct appeal in terms of his right to present a complete de‐
fense as recognized in Chambers v. Mississippi, 410 U.S. 284
(1973). But Hinkle also clarified during his direct appeal that
the right to present a defense stems, in part, from the Sixth
Amendment’s Confrontation Clause. And Hinkle’s state ap‐
pellate briefs relied on cases applying the right to confront
witnesses under the Sixth Amendment in addition to cases
applying the right to present a complete defense under Cham‐
bers.
The Indiana Court of Appeals affirmed Hinkle’s convic‐
tion, explaining that Hinkle did not present any basis to sup‐
port his assumption that S.B. invented the allegations. It
agreed with the prosecution that Hinkle’s theory about S.B.’s
motives was “factually misplaced” because S.B. “did not
know his family was considering consequences for his behav‐
ior” and instead testified that the intervention was merely an
“open discussion” about his use of drugs. Hinkle, 97 N.E.3d
at 664.
No. 21‐2067 29

After the Indiana Supreme Court declined to consider the
case, Hinkle filed a pro se petition for federal habeas relief un‐
der 28 U.S.C. § 2254. His petition reasserted his claim that the
state court violated his right to present a complete defense
when it barred evidence of S.B.’s motive. And as with his state
appellate filings, Hinkle’s federal habeas petition framed his
complete‐defense arguments in terms of whether the trial
court violated his right to confront witnesses under the Sixth
Amendment. The district court denied the petition, and Hin‐
kle appealed.
II

I agree with my colleagues that the state appellate court
adjudicated Hinkle’s federal claim on the merits, and there‐
fore we may grant relief only if the state court’s decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law.” 28 U.S.C. § 2254(d). But un‐
like the majority opinion, I conclude that Hinkle’s claim suc‐
ceeds even under this formidable standard. To explain why, I
start with a brief discussion of the contours of the constitu‐
tional right at issue. Because § 2254(d) requires this court to
identify clearly established law “as determined by the Su‐
preme Court of the United States,” I focus on Supreme Court
precedent while relying on circuit law to determine how that
precedent applies to habeas petitions from state prisoners.
A. Chambers v. Mississippi and the Right to Present a
Complete Defense
“Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the Consti‐
tution guarantees criminal defendants a meaningful
30 No. 21‐2067

opportunity to present a complete defense.” Holmes v. South
Carolina, 547 U.S. 319, 324 (2006). This right is typically impli‐
cated when some state‐specific evidentiary rule leaves out re‐
liable evidence that is otherwise relevant to an accused’s de‐
fense. The right is abridged if the state’s rules “infringe upon
a weighty interest of the accused and are arbitrary or dispro‐
portionate to the purposes they are designed to serve.” Id. at
324 (cleaned). But it does not prohibit trial judges from apply‐
ing well‐established rules to exclude evidence for which the
“probative value is outweighed by certain other factors such
as unfair prejudice, confusion of the issues, or potential to
mislead the jury.” Id. at 326.
The seminal Supreme Court case is Chambers v. Mississippi,
410 U.S. 284 (1973). It involved a police officer who was shot
and killed during an altercation with a crowd of about 50 or
60 people. Id. at 285–86. Most witnesses could not identify the
shooter, but one sheriff’s deputy testified that he saw the de‐
fendant fire the shot. Id. at 286. Another person in the crowd,
however, confessed to a friend that he was the one who had
shot the officer. Id. at 287. The defendant called this alternate
suspect as a witness. But the witness recanted, and the trial
court would not allow the defendant to impeach the witness
with evidence of his prior confession because doing so would
violate Mississippi’s hearsay rule and a rule against the im‐
peachment of one’s own witnesses. Id. at 291–93.
The Supreme Court held that the evidentiary rulings de‐
prived the defendant of his due process right to present a de‐
fense. “Few rights are more fundamental than that of an ac‐
cused to present witnesses in his own defense.” Id. at 302. The
Court noted that the prior confession—a spontaneous, self‐in‐
criminating statement corroborated by other evidence—was
No. 21‐2067 31

similar to other traditional exceptions to hearsay rules. Id. at
300–01. And when evidence otherwise bears “persuasive as‐
surances of trustworthiness,” “the hearsay rule may not be
applied mechanistically to defeat the ends of justice.” Id. at
302.
B. Seventh Circuit Cases Applying the Complete‐De‐
fense Right to Habeas Claims
In Kubsch v. Neal, 838 F.3d 845 (7th Cir. 2016), an en banc
panel of our court considered the availability of habeas relief
for a Chambers claim. Like Chambers, the claim in Kubsch in‐
volved a state court’s exclusion of exculpatory hearsay evi‐
dence in a murder case: a videotaped police interview of a
nine‐year‐old girl who saw the murder victims after the de‐
fendant allegedly killed them. Id. at 852–53. In holding that
the state court’s exclusion of the evidence was an unreasona‐
ble application of clearly established federal law, this court
reviewed in detail the Supreme Court’s Chambers line of cases.
Id. 856–58. From these cases, the Kubsch panel identified five
common factors that had entitled the defendants to relief, id.
at 858, and which my colleagues also rely on in the majority
opinion here. Ante at 12–13. The Kubsch panel further ex‐
plained that (at least when Chambers is viewed through the
lens of federal habeas review) a state evidentiary rule must
fall against a complete‐defense argument only when all five
factors are present. Kubsch, 838 F.3d. at 862.
More recently, however, this court voiced skepticism
about whether the Kubsch factors should apply in complete‐
defense cases when the excluded evidence implicates other
constitutional rights and was excluded for reasons other than
a state’s hearsay rules. In Fieldman v. Brannon, 969 F.3d 792
(7th Cir. 2020), this court granted habeas relief after an Illinois
32 No. 21‐2067

court improperly barred a defendant from testifying about an
associate’s violent criminal history. The defendant was con‐
victed of solicitation for murder for hire, and the defense’s
theory had been that the defendant met with the hitman (an
undercover officer) only because he was afraid of the associ‐
ate who arranged the meeting. Id. at 795–98. Like Hinkle, the
petitioner in Fieldman framed his claim in terms of the right to
present a complete defense. Id. at 799. But this court explained
that the Kubsch framework did not apply because Kubsch “ap‐
plied principles distilled from Chambers and related cases to a
state’s application of its hearsay rule to exclude critical testi‐
mony.” Id. at 807 n.5. Neither Chambers nor Kubsch relied on a
defendant’s right to testify in his own defense, which this
court considered to be the underlying source for the com‐
plete‐defense in Fieldman. Id.
Accordingly, in assessing the defendant’s claim that he
had been deprived of his right to present a complete defense,
the Fieldman court focused on whether the state judgment was
“contrary to clearly established federal law confirming a de‐
fendant’s right to testify.” Id. at 795; see also id. at 802. The
court explained that Kubsch still provided some helpful guid‐
ance on when a state’s evidentiary rule should yield to a de‐
fendant’s right to present a defense. Id. at 807 n.5. But the
Kubsch factors did not cabin the analysis of the petitioner’s
complete‐defense claim. When faced with a habeas claim re‐
lated to a state defendant’s right to present a defense, the rel‐
evant question was how the Supreme Court had defined the
contours of the defendant’s right to present the evidence at
issue.
Fieldman’s limitation on the Kubsch framework is relevant
because, like the defendant in Fieldman, Hinkle is not making
No. 21‐2067 33

a Kubsch‐style challenge to Indiana’s hearsay rules. The Indi‐
ana courts excluded evidence of the family meeting about
S.B.’s drug use on relevancy grounds. Hinkle argues he
should have been allowed to confront S.B. with this evidence
because it was relevant to S.B.’s motive to lie—which is a
quintessential right protected under the Confrontation
Clause. Just as Fieldman looked to Supreme Court precedent
on a defendant’s right to testify, Hinkle’s claim calls upon us
to look to Supreme Court precedent on a defendant’s right to
confront witnesses.
C. The Supreme Court’s Confrontation Clause Prece‐
dent
Among the evidence that a defendant is entitled to present
as part of a complete defense is impeachment evidence show‐
ing an accusing witness’s motivation to lie. Under the Con‐
frontation Clause, “the exposure of a witness’ motivation in
testifying is a proper and important function of the constitu‐
tionally protected right of cross‐examination.” Davis v. Alaska,
415 U.S. 308, 316–17 (1974). The Confrontation Clause is vio‐
lated when a criminal defendant is “prohibited from engag‐
ing in otherwise appropriate cross‐examination designed to
show a prototypical form of bias” by presenting facts from
which jurors could “appropriately draw inferences relating to
the reliability of the witness.” Olden v. Kentucky, 488 U.S. 227,
231 (1988) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 680
(1986)).
The scope of a defendant’s right to present evidence under
the Confrontation Clause is slightly different than the Cham‐
bers right to present certain hearsay evidence as described in
Kubsch. One pertinent difference is that the Supreme Court
has granted Confrontation Clause relief even in cases that did
34 No. 21‐2067

not involve murder or the death penalty. Compare Davis, 415
U.S. 308 (relief for defendant convicted of nonviolent bur‐
glary) with Kubsch, 838 F.3d at 858 (noting that the Supreme
Court has applied Chambers only in murder cases). Moreover,
whereas Kubsch holds that the Chambers rule does not clearly
apply to impeachment evidence, the same is not true of the
Confrontation Clause: Exposure of a witness’s motivation is a
“proper and important function” of the right to cross exami‐
nation. Van Arsdall, 475 U.S. at 678‐79. And courts must allow
defendants to elicit evidence that would allow a reasonable
jury to find that a witness was motivated to provide favorable
testimony for the prosecution. See id. at 676 (trial court vio‐
lated Confrontation Clause by prohibiting “all inquiry into
the possibility that [the witness] would be biased as a result
of the State’s dismissal of his pending public drunkenness
charge” even when witness denied any deal with the state).
III

D. No Waiver of Confrontation Clause
The majority opinion suggests that Hinkle waived any re‐
liance on the Confrontation Clause, or at least failed to ex‐
haust such a claim in state courts, by presenting his claim both
here and in state court only in terms of whether his right to
present a complete defense was violated. Ante at 5, 16. I agree
with my colleagues that Hinkle could have done a better job
presenting the current appeal; his brief in this court fails to
cite any Confrontation Clause precedent and instead focuses
on whether he is entitled to relief under Kubsch and Chambers.
But for several reasons I do not see any issue of waiver or a
failure to exhaust under 28 U.S.C. § 2254(b)(1)(A).
No. 21‐2067 35

First, Hinkle presented a Confrontation Clause argument
both in state court and in his pro se habeas petition filed in the
district court. His presentation was not perfect. As Hinkle
conceded at oral argument, state appellate counsel mostly
framed Hinkle’s claims on direct appeal as a violation of the
right to present a complete defense rather than a violation of
the Confrontation Clause. But Hinkle’s briefs on direct appeal
still asserted a violation of his confrontation rights under the
Sixth Amendment and analogized the facts of his case to the
Supreme Court’s application of the Confrontation Clause in
Davis v. Alaska, 415 U.S. 308. See R. 11‐1 at 33; R. 11‐3 at 6–7.
Hinkle’s pro se habeas filings in the district court were simi‐
lar: He primarily asserted a complete‐defense claim, but he
fleshed out that claim by citing Confrontation Clause prece‐
dent and arguing that the state court violated his right to con‐
front S.B. See R. 9 at 3 (asserting habeas claim for “blocking
right to confront”). Contrary to the majority opinion’s assess‐
ment, Hinkle did not relegate the Confrontation Clause to
mere references in the underlying pleading; he also cited the
Sixth Amendment and Confrontation Clause authority in his
habeas briefing. R. 14 at 20 (arguing that he had a right to pre‐
sent a complete defense including confrontation evidence un‐
der Davis v. Alaska, 415 U.S. 308). In other words, every step
of the way before reaching this court, Hinkle argued that his
right to present a defense was violated because he had a right
under the Confrontation Clause to present evidence of S.B.’s
motivations.
Second, the substance of Hinkle’s arguments hinges upon
the Confrontation Clause. As the district court noted, “[t]he
dividing line between the right to confrontation and the right
to present a complete defense isn’t always unambiguous.”
And the gravamen of Hinkle’s argument to this court is that
36 No. 21‐2067

he should have been allowed to confront S.B. with evidence
of S.B.’s motive to lie. That is arguably the quintessential right
protected by the Confrontation Clause. Moreover, although
Hinkle’s briefing before this court focuses on the right to a
complete defense, he still explains that the right to a complete
defense stems in part from the Compulsory Process and Con‐
frontation Clauses of the Sixth Amendment, and that it pro‐
tects “the right to confront and to cross‐examine.” See Appel‐
lant’s Br. at 14 (citations omitted). Again, Hinkle could have
done a better job highlighting the Supreme Court’s Confron‐
tation Clause precedent in his briefing before this court. But
nothing in his filings or statements at oral argument evince an
“intentional relinquishment” of the Confrontation Clause ar‐
guments he made in the district court. Bourgeois v. Watson, 977
F.3d 620, 629 (7th Cir. 2020).
Third, our court has previously explained that the Kubsch
framework primarily applies to the exclusion of hearsay evi‐
dence. Fieldman, 969 F.3d at 807 n.5. But when a petitioner’s
complete‐defense claim challenges the exclusion of evidence
that invokes another constitutional right, our court looks at
Supreme Court precedent establishing the right to present
that type of evidence. See id. at 802 (analyzing complete‐de‐
fense claim by assessing whether excluded evidence fell
within defendant’s clearly established right to testify in his
own defense). Because Hinkle challenges an order barring
him from confronting a witness with evidence of the witness’s
motive, analysis of his complete‐defense claim requires con‐
sideration of the Supreme Court cases discussing that type of
evidence—i.e., cases applying the Confrontation Clause.
Fourth and most importantly, the state injected precedent
applying the Confrontation Clause into this appeal. Rather
No. 21‐2067 37

than argue to this court that Hinkle waived or forfeited any
Confrontation Clause claim, the state identified Confronta‐
tion Clause cases and briefed the scope of the Sixth Amend‐
ment’s confrontation protections. See Appellee’s Br. at 16–17
(discussing, among other cases, Van Arsdall, 475 U.S. 673 and
United States v. Trent, 863 F.3d 699 (7th Cir. 2017)). For example,
the state cites United States v. Trent, 863 F.3d 699, a case about
the scope of a defendant’s right to present motive evidence
under the Confrontation Clause, as relevant to determining
which evidence falls within the right to present a complete
defense. So to the extent that Hinkle has waived any reliance
on the Confrontation Clause by failing to adequately brief the
issue before this court (which, again, I do not believe he has),
the state has “waived waiver.” Gilbreath v. Winkleski, 21 F.4th
965, 982 n.15 (7th Cir. 2021).
Accordingly, I would focus on the Supreme Court’s prec‐
edent interpreting the Confrontation Clause to determine the
scope of Hinkle’s right to present impeachment evidence, and
to determine whether the exclusion of evidence of S.B.’s mo‐
tive was contrary to clearly established federal law.
E. The State Court Decision is an Unreasonable Appli‐
cation of Supreme Court Precedent
Hinkle argues that he is entitled to relief under § 2254(d)
because the state appellate court’s judgment is an unreasona‐
ble application of federal law. Under § 2254(d)’s “unreasona‐
ble application” clause, Hinkle must demonstrate that the
state court applied Supreme Court precedent in an objectively
unreasonable manner, and that there was “an error well un‐
derstood and comprehended in existing law beyond any pos‐
sibility for fairminded disagreement.” Harrington v. Richter,
562 U.S. 86, 103 (2011).
38 No. 21‐2067

When determining whether a federal rule has been clearly
established, the Supreme Court has warned against framing
the theory at a “high level of generality.” Nevada v. Jackson, 569
U.S. 505, 512 (2013). The right question is “whether decisions
of the Supreme Court establish that the particular decision the
state judiciary reached is forbidden.” Keith v. Schaub, 772 F.3d
451, 454 (7th Cir. 2014). But although the Supreme Court prec‐
edent must be on point, the Court has “never insisted on vir‐
tual identity between its precedent and the state court’s deci‐
sion.” Fieldman, 969 F.3d at 802 (citing Panetti v. Quarterman,
551 U.S. 930, 953 (2007)).
For decades, the Supreme Court has made clear that de‐
fendants must be allowed to present evidence of an accuser’s
motive for testifying against them. See, e.g., Olden, 488 U.S. at
231; Van Arsdall, 475 U.S. at 678–79; Davis, 415 U.S. at 316–17.
Indeed, this case is remarkably like Davis, in which the Court
granted relief for a defendant convicted of burglarizing a safe
from a closed tavern. A teenager who lived near where state
troopers discovered the safe testified that he had seen two
men, including the defendant, in the area. 415 U.S. at 310. Re‐
lying on state evidentiary rules, the trial court barred the de‐
fense from impeaching the witness with evidence that the wit‐
ness was on probation for a juvenile adjudication of burglary,
and thus had a motive to implicate the defendant as to shift
suspicion away from himself. Id. at 310–11. The Court held
that the application of the state rule violated the defendant’s
right to confrontation, which outweighed the state’s interest
in protecting the anonymity of juvenile offenders. Id. at 319.
As in Davis, Hinkle wanted to impeach the state’s star wit‐
ness with evidence that the witness had a motive to deflect
attention from himself. In both cases, the impeachment
No. 21‐2067 39

evidence was potentially embarrassing for the witness, had a
slight potential to prejudice jurors against the witness, and
was a type of evidence that a state court would typically have
good reason to exclude. (For Davis, evidence of a juvenile ad‐
judication. Here, evidence revealing the witness’s heavy drug
addiction.) And although the record here lacks evidence of
animus or any reason why S.B. would have wanted to retali‐
ate against Hinkle in particular, the same was true in Davis.
But in both cases the timing of the events, and the witness’s
desire to shed attention from himself, suggested that he had
an additional motive to accuse someone else of wrongdoing
even if not the defendant in particular.
Significantly, a defendant has a right to present evidence
of motive even when the evidence would not conclusively es‐
tablish the defendant’s innocence if credited. For example, a
defendant has a right to impeach a witness with evidence that
the witness received a benefit from the state, even though that
benefit does not necessarily prove that a deal was struck or
render the testimony untruthful. Van Arsdall, 475 U.S. at 679.
What matters is that the jury has the opportunity to learn of
the accuser’s biases and appropriately weigh the evidence.
The underlying principles of the five Kubsch factors also
generally support the admission of evidence of S.B.’s motive.
See Fieldman, 969 F.3d at 807 n.5 (noting that even when the
Kubsch framework does not apply, “Kubsch contains a helpful,
general discussion of circumstances in which a state eviden‐
tiary rule should yield to a defendant’s right to present a de‐
fense”). First, the excluded testimony was not part of an af‐
firmative defense but rather a direct attack on the state’s only
evidence at trial. Kubsch, 838 F.3d at 858. If a jury had con‐
cluded that S.B. was not credible, it would have acquitted
40 No. 21‐2067

Hinkle. Second, although Hinkle was not accused of murder,
see id., he was convicted of a type of offense that has shown
up in the Supreme Court’s Confrontation Clause cases. E.g.,
Olden, 488 U.S. at 228 (vacating rape conviction when defend‐
ant barred from presenting evidence of witness’s motive to
lie); Coy v. Iowa, 487 U.S. 1012, 1014 (1988) (vacating convic‐
tions for “lascivious acts with a child”). Third, because Hin‐
kle’s defense was premised on convincing the jury that S.B.
fabricated the accusations, the excluded testimony was essen‐
tial to his defense as the only evidence that would have ex‐
plained why S.B. had a motive to lie. See Kubsch, 838 F.3d at
858. I disagree with my colleagues that Hinkle’s theory was
misleading or lacked a factual basis because S.B. denied that
the family meeting was serious enough to be considered an
“intervention”: S.B. himself testified that he learned for the
first time during this meeting that his family was going to be
monitoring him “very, very closely” and that his mother was
looking into rehab options for him. Fourth, the evidence was
reliable because Hinkle wanted to rely on S.B.’s own testi‐
mony to impeach S.B. See id. So rather than submit extrinsic
impeachment evidence that needed to be separately tested for
reliability and trustworthiness, he relied on S.B.’s founda‐
tional knowledge of the events. Fifth, a lack of parity between
the defendant and the government suggests that the state
court exercised its evidentiary rules in an arbitrary manner.
See id. After the trial court ruled that evidence of S.B.’s motive
to lie was irrelevant, it allowed the state to emphasize during
closing arguments that S.B. had no motive to fabricate his al‐
legations. As Hinkle points out, the state was thus able to use
the trial court’s ruling as both shield and sword by claiming
that evidence was irrelevant and then using the missing evi‐
dence to attack Hinkle.
No. 21‐2067 41

I am not convinced by the state’s arguments that the ex‐
cluded evidence was only “marginally relevant,” and that the
state court reasonably concluded that nothing but speculation
linked the family meeting about S.B.’s drug use to S.B.’s accu‐
sations against Hinkle. Unlike the other impeachment evi‐
dence submitted at trial, the excluded evidence went specifi‐
cally to S.B.’s motive.
Hinkle would have shown how S.B. first accused him of
molestation during a family meeting years after S.B. said the
molestations took place. The jury would have heard how S.B.
learned for the first time during this meeting that his mother
was looking into rehab options for him. The jury also would
have heard how, after learning this information, S.B. immedi‐
ately asked to call his mother. Only when S.B.’s other family
members denied him access to a phone did S.B. disclose Hin‐
kle’s actions to those present. A jury could infer from this se‐
quence of events that S.B. wanted to deflect attention away
from himself because he thought he would be punished for
his drug use, possibly even sent away to rehab. See, e.g., Davis,
415 U.S. at 319; cf. also Milligan‐Grimstad v. Stanley, 877 F.3d
705, 711 (7th Cir. 2017) (in employment context, noting that
suspicious timing may be relevant to a party’s intent). Con‐
trary to the state’s assertion that Hinkle merely wanted to
“smear S.B. as a drug user,” the timing of S.B.’s accusations
was the relevant evidence of a motive—not the drug use. For
this reason, I also disagree with the majority opinion’s conclu‐
sion that evidence of this meeting was not essential to Hin‐
kle’s defense. The timing and context of S.B.’s initial accusa‐
tion was essential, even if broad references to S.B.’s general
drug habits would not have been.
42 No. 21‐2067

The state’s position would be stronger if the trial court had
admitted the evidence of the family meeting but excluded
Hinkle’s other impeachment evidence about S.B.’s prior con‐
victions, propensity for lying, etc. So long as the defense is
given a reasonable opportunity to question witnesses about
their motives, the trial court is awarded leeway to exclude ad‐
ditional impeachment evidence based on concerns about har‐
assment, prejudice, or other things. Van Arsdall, 475 U.S. at
679. But here, the trial court arguably got it backwards—it al‐
lowed Hinkle to thoroughly smear S.B. as a reprobate and liar
but did not let Hinkle explain why S.B. would have a motive
to lie in the first place.
To be sure, the state is correct that a defendant’s right to
confrontation does not permit a defendant to question wit‐
nesses “in whatever way, and to whatever extent, the defense
might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985).
Courts have wide latitude to impose reasonable limits to ex‐
clude things that are prejudicial, confusing, harassing, or only
marginally relevant—so long as the defendant has had a
chance to impeach the witness’s credibility and establish a
motive to lie. See United States v. Clark, 657 F.3d 578, 584 (7th
Cir. 2011) (collecting cases); see also Trent, 863 F.3d at 704 (no
right to impeach cooperating witnesses with exact mandatory
minimum of witnesses’ dismissed charges, when defense had
already established that the sentences would have been sub‐
stantial).
But the key is that a defendant must have had the oppor‐
tunity to at least probe the witness’s bias and motives. Indeed,
every Confrontation Clause case the state cites makes that ca‐
veat. Because the family meeting and the timing of S.B.’s ac‐
cusations were the only available evidence of S.B.’s possible
No. 21‐2067 43

motive to fabricate a claim, no fairminded jurist could con‐
clude that the evidence should have been excluded.
Nor can I agree with my colleagues that the exclusion of
the evidence was harmless. Although the majority opinion
notes that “other portions” of S.B.’s testimony were corrobo‐
rated, ante at 21, S.B.’s testimony was the only evidence that
the crime took place. Other witnesses could corroborate that
Hinkle—a family member—at times had access to S.B. But
outside S.B.’s testimony, no additional testimonial or physical
evidence was presented to show that S.B. had been molested.
I also cannot conclude that other impeachment evidence was
sufficient to avoid any harm, particularly given the lack of any
other evidence of S.B.’s motives in the record and the state’s
closing arguments taking advantage of that void in Hinkle’s
case.
IV

For the above reasons, I respectfully dissent.