Harding, Linnell v. Sternes, Jerry ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2672
LINNELL HARDING,
Petitioner-Appellant,
v.
JERRY L. STERNES, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 00 C 7515—Matthew F. Kennelly, Judge.
____________
ARGUED APRIL 6, 2004—DECIDED AUGUST 23, 2004
____________
Before RIPPLE, KANNE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Linnell Harding was convicted by a
jury of armed robbery and possession of a stolen motor
vehicle in relation to an armed carjacking. The Illinois
Appellate Court rejected his appeal, and the Supreme Court of
Illinois summarily denied his petition for leave to appeal.
Mr. Harding then filed a petition for post-conviction relief
in the state court that was unsuccessful. Mr. Harding then
petitioned for federal habeas corpus relief. See 28 U.S.C.
§ 2254. The district court appointed counsel and granted
2 No. 03-2672
leave to file an amended petition. In this amended petition,
Mr. Harding focused on two claims—ineffective assistance
of counsel and the exclusion of evidence. The district court
denied the petition. For the reasons set forth in this opinion,
we affirm the judgment of the district court.
I
BACKGROUND
A. Facts
On August 10, 1991, Rafael Colon had his car stolen at
gunpoint. While Colon was stopped at an intersection, a
man placed a gun to his head and ordered him out of his
car. A second man lunged through the passenger-side win-
dow, shifted the transmission into park, turned off the ig-
nition and took the keys. The gunman then took the victim’s
necklace from his neck. During this time, Colon was face-to-
face with the gunman for approximately thirty seconds, and
the scene was illuminated by streetlights. The gunman then
told Colon to leave, and Colon complied.
After the incident, Colon contacted the police. Police re-
ports described the gunman as a 5'9", 185-pound, thirty-
year-old African-American male with black hair and brown
eyes. The reports did not include any indication of visible
scars and did not contain a description of the second as-
sailant.
One week later, while responding to a disturbance call,
the police officers found Colon’s car at a house where Mr.
Harding was present. Mr. Harding was arrested originally
for disorderly conduct as a result of the disturbance. He
gave the officers permission to “search my car.” R.28, Ex.A
at 2. The police found documents bearing Colon’s name still in
the vehicle. Mr. Harding was charged with armed robbery
and possession of a stolen motor vehicle. Police placed Mr.
No. 03-2672 3
Harding, 5'7", 145 pounds and another suspect, Carl Page,
5'5", 140 pounds, in a lineup with four other men, who were
5'11" to 6'4" in height and weighed from 155 to 200 pounds.
Colon identified both Mr. Harding and Page as the perpe-
trators, but the lineup identification was later suppressed as
impermissibly suggestive.
B. Trial Court Proceedings
At trial, Colon identified Mr. Harding as the perpetrator.
According to Colon’s testimony, he had seen Mr. Harding
on five occasions prior to his in-court identification. These
sightings occurred in the context of court proceedings in
which Mr. Harding was clearly the subject of the prosecu-
tion. The state trial court found that Colon’s face-to-face
encounter with the gunman while his necklace was being re-
moved provided a sufficient independent basis for identi-
fication and allowed the in-court identification.
Mr. Harding presented a defense of alibi and mistaken
identity. He testified that he was recovering from unrelated
injuries at his mother’s home when Colon’s car was stolen.
On the date the crime allegedly occurred, part of his head
was shaved revealing two partially healed, red scars con-
taining nine and twelve stitches respectively. Mr. Harding’s
mother, brother and two of his cousins all testified that he
was at his mother’s house at the time of the carjacking.
Mr. Harding also testified that Artric Jordan had loaned
him the car and had given him the keys. Mr. Harding as-
serted that he did not know that the car was stolen. To
establish that Jordan had stolen Colon’s car, Mr. Harding
sought to introduce evidence that Jordan lived within a
block of the scene of the carjacking and had been arrested
for armed carjacking less than a month after Colon’s car was
stolen. The trial court precluded him from introducing this
4 No. 03-2672
evidence; however, the court did permit Mr. Harding to
show a mugshot of Jordan to Colon in court. Colon testified
that he had never seen Jordan before and did not see him
the night of the carjacking. Mr. Harding nevertheless was
allowed to, and did, argue that Jordan had stolen Colon’s
car.
Mr. Harding had several prior convictions, including one
for armed robbery. Prior to trial, the defense submitted a
motion in limine to exclude certain information regarding
these convictions. In response, the trial court ruled that, if
Mr. Harding testified, the prosecution could elicit that he had
been convicted of previous felonies and the dates of these
felonies; however, the sentences Mr. Harding received and
the nature of his offenses were inadmissible because the jury
“would tend to convict him just because he’s an armed
robber.” R.28, App. 2 at Z-9.
The prosecution did not elicit Mr. Harding’s prior con-
victions on cross-examination, but Mr. Harding’s attorney
did raise the issue on re-examination over the prosecution’s
objections. During cross-examination, the prosecution had
questioned Mr. Harding about giving the police a false name
and address when he was arrested. On re-examination, Mr.
Harding’s counsel followed up on this questioning by asking
Mr. Harding why he had done this. Mr. Harding replied,
“You know, it puzzle me right now today, that is one of the
fear that you have of polices really, its one of the fears, you
know.” R.28, App. 3 at AA-235 to AA-236. Then, the fol-
lowing examination took place:
Q Have you ever been arrested before?
A Yes, I have. Yes, I have.
Q And you’ve been convicted, is that correct?
A Yes, I have.
No. 03-2672 5
MR. CALLAHAN [prosecutor]: Objection, this is beyond
the scope at this point, Judge.
....
THE COURT: All right. Well, I’m going to leave it. So
I’ll overrule the State’s objection.
MR. STANTON [defense counsel]: Q On October the 7th
of 1982 before his Honor Judge McNulty were you
convicted of a crime?
A Yes, I was.
MR. CALLAHAN: Objection, this is beyond the scope.
THE WITNESS: Yes, I was.
THE COURT: Well, no, it is not. It’s collateral but the
cross-examination related to truthfulness, this relates to
truthfulness.
MR. CALLAHAN: Fine, Judge.
MR. STANTON: Q And as a result were you sentenced
to thirty months[’] probation?
A Yes, I was. Yes, I was.
Q On May the 1st of 1989 were you also convicted of the
charge of unlawful use of a weapon by a felon?
A Yes, I was.
Q And were you given a sentence of two years in the
Illinois Department of Corrections?
A Yes, I was.
Q And on April 25th of 1984 were you convicted of the
crime of armed robbery and unlawful restraint, were you
convicted?
A I was convicted, I don’t know what you mean though,
I was convicted.
6 No. 03-2672
MR. STANTON: Judge, I made a mention of something
here and I would ask whatever I made mention of be at
this time—
THE COURT: All right.
MR. STANTON: Stricken from the record.
THE WITNESS: It is okay.
THE COURT: Mr. Defendant.
THE WITNESS: It is okay, I’ll explain it.
THE COURT: I run the Court. What the record will show
and the jury is to consider, one, that there is a conviction
on April the 25th, 1984, of a felony.
MR. STANTON: Thank you.
THE COURT: And anything else will be disregarded.
MR. STANTON: All right.
Q And pursuant to that conviction you received a sen-
tence of ten years Illinois Department of Corrections
concurrent with a three year sentence, is that correct?
A Yes; yes.
Q On all of those convictions that you were sentenced to
the Illinois State pen did you do your time?
A Yes, I did. Yes, I did.
Id. at AA-236 to AA-238.
A jury convicted Mr. Harding on both the armed robbery
charge and the possession of a stolen motor vehicle charge.
The trial judge sentenced him to concurrent prison terms of
thirty-two years on the armed-robbery charge and fourteen
years on the possession charge.
No. 03-2672 7
C. State Appellate Court Proceedings
Mr. Harding appealed his conviction on three grounds.
The two issues relevant to his current habeas petition are:
(1) that the trial court erred by excluding evidence that
Jordan had committed another carjacking shortly after Colon’s
car was stolen, and (2) that his trial attorney was ineffective
for eliciting testimony about the details of his prior convic-
tions. The Illinois Appellate Court affirmed the trial court’s
decision.
The state appellate court addressed whether it was error
to refuse to admit evidence of a subsequent carjacking com-
mitted by Jordan. The court treated this claim as an eviden-
tiary challenge and held that evidentiary decisions were
committed to the sound discretion of the trial court. The
appellate court explained that, at trial, Harding attempted
to introduce evidence Jordan committed a car theft. He
intended to use this evidence to show that subsequent theft
revealed a common scheme and similar modus operandi. The
appellate court, however, found no meaningful link between
the two car thefts; it noted the different times of the thefts,
types of location, number of occupants in the vehicle and
the use of a real gun during the armed robbery of Colon
rather than the use of a toy gun in the subsequent robbery
Jordan was alleged to have committed. In light of the
differences between the crimes, the appellate court held the
state trial court did not abuse its discretion in refusing to
admit this evidence.
The state appellate court also addressed the ineffective as-
sistance of counsel claim. Employing the two-pronged test of
Strickland v. Washington, 466 U.S. 668 (1984), the court first
noted that the decision to introduce evidence of prior con-
victions ordinarily is a question of trial strategy. On the
8 No. 03-2672
second prong of Strickland, the court noted that “the erroneous
admission of other crimes evidence is harmless where
properly admitted evidence is so overwhelming that no fair-
minded jury could vote for acquittal.” R.32, Ex.A at 14. The
court determined that the error did not affect the outcome of
the case and was therefore harmless. The court explained
that conviction was based on the victim’s identification of
Mr. Harding at trial, testimony from an officer that Colon’s
car was found in Mr. Harding’s possession and testimony
that Mr. Harding claimed the car was his. The court further
noted that, Mr. Harding’s statement from the witness stand
that “It is okay, I’ll explain it,” indicated his acquiescence to
the introduction of his prior convictions. See id. (quoting
trial transcript included at R.28, Ex.A at AA-238). Finally,
the appellate court noted that the trial court had granted the
defense counsel’s request to strike the testimony and had
instructed the jury to disregard the testimony as to the
armed robbery. The appellate court concluded that this in-
struction was sufficient to remedy any error.
After unsuccessfully petitioning for leave to appeal to the
Illinois Supreme Court, Mr. Harding filed a state petition for
post-conviction relief. He raised eight new claims. As the
district court recounted:
He argued that (1) his due process rights were violated
when the state knowingly elicited false testimony from
one of its police officer witnesses; (2) he was denied his
6th Amendment right to confront and cross-examine
that false testimony; (3) he was denied due process be-
cause the state knowingly suppressed evidence; (4) his
appellate counsel was ineffective for failing to raise issues
on direct appeal; (5) his appellate counsel was ineffec-
tive for failing to interview Artric Jordan; (6) he was de-
nied a fair and impartial jury because his trial attorney
failed to challenge prospective jurors for cause; (7) he
No. 03-2672 9
was denied due process when one of the officers on the
case destroyed evidence of a suggestive line-up and
fabricated other line-up reports introduced into evidence;
and (8) he was denied due process based upon the ex-
cessive delays during the appellate process.
R.34 at 6-7. The state trial court denied Mr. Harding any
relief. Mr. Harding appealed the dismissal of his post-con-
viction petition, but the state appellate court affirmed the
dismissal of the post-conviction relief. After Mr. Harding’s
court-appointed counsel was allowed to withdraw from the
case, Mr. Harding requested a rehearing and later filed a
petition for leave to appeal to the Illinois Supreme Court.
Both were denied.
D. District Court Proceedings
Mr. Harding filed a petition for a writ of habeas corpus,
which raised the same claims that his petition for post-con-
viction relief addressed, plus one new claim. The district
court then appointed an attorney to represent Mr. Harding.
Counsel then filed an amended petition, which reduced the
issues to ineffective assistance of counsel and the exclusion
of Jordan’s carjacking arrest. The district court denied relief
with respect to both claims.
The district court first addressed the ineffective assistance
of counsel claim. The court concluded that this claim had
not been procedurally defaulted and that Mr. Harding had
not forfeited the error by acquiescing in his attorney’s
questioning. The court explained further that Mr. Harding
fairly presented this claim to the Illinois state court and that,
when Mr. Harding answered his attorney’s questions, he
was trying only to appear cooperative. Because Mr. Harding
had no opportunity to oppose or comment on his attorney’s
10 No. 03-2672
questioning, he could not have been acquiescing. The district
court further noted that the state court’s ruling addressed the
question of acquiescence only after it had addressed the
merits of the ineffectiveness claim. The state decision there-
fore did not rest on an independent state procedural ground;
accordingly, ruled the district court, it was proper for the
federal court to consider the merits of Mr. Harding’s claim.
On the merits of this claim, the district court recognized
the two-prong test of Strickland v. Washington, 466 U.S. 668(1984), as controlling and noted that it required Mr. Harding
“to demonstrate that his counsel’s performance fell below an
objective standard of reasonableness and that the deficient
performance so prejudiced his defense that it deprived him
of a fair trial.” R.34 at 12. The district court then determined
that the state court had made no findings on counsel’s perfor-
mance. Consequently, the district court addressed this issue
for the first time. The court found that counsel’s “strategy”
was to elicit testimony regarding the prior convictions in an
effort to explain why Mr. Harding had lied to the police
about his name and address. The court also found that Mr.
Harding’s counsel knew the information was prejudicial be-
cause he had argued previously that the same evidence was
unduly prejudicial in an effort to suppress it. After de-
scribing defense counsel’s strategy as “bone-headed” and its
execution as “atrocious,” the court concluded that counsel’s
performance fell well below an objective standard of rea-
sonableness. R.34 at 13-14.
The district court then decided that the state court’s de-
termination on the prejudice prong of Strickland was not an
unreasonable application of Strickland. Although the district
court did not agree that the evidence against Mr. Harding was
overwhelming, it nevertheless concluded that the state
court’s decision on prejudice “was not so wide of the mark
as to be unreasonable.” Id. at 16-17. The district court then
No. 03-2672 11
recounted the evidence that supported the conviction, in-
cluding that: the victim was face-to-face with the gunman
for thirty seconds; the street was illuminated by lights; the
victim recognized Mr. Harding as the gunman; the victim
did not recognize Jordan from a photograph; the police
officer testified that Mr. Harding had told him the car was
his; and the victim’s papers were found in the car. Finally,
the district court noted that the state appellate court relied
on the jury instruction to disregard the reference to a prior
armed robbery, potentially the most prejudicial aspect of the
questioning. Therefore, the district court rejected Mr.
Harding’s ineffective assistance of counsel claim.
The district court next addressed Mr. Harding’s due pro-
cess claim. Focusing on whether Mr. Harding fairly pre-
sented the issue to the state courts, the district court noted
that Mr. Harding had stated in one introductory sentence
that “[t]he court’s refusal to allow him to [introduce the
evidence] violated his constitutional right to introduce
evidence in his own defense and denied him a fair trial.” Id.
at 19 (quoting Harding’s Appellate Brief on direct appeal,
R.32, Ex.B at 14). His argument and supporting discussion
for this claim, however, addressed it as an evidentiary issue
and not a constitutional claim. Consequently, the state ap-
pellate court had addressed it as such. The district court
further noted that Mr. Harding’s subsequent petition to the
state supreme court was a verbatim copy of his appellate
brief. The district court viewed his appeal and unchanged
petition to the supreme court as an indication that the “na-
ture of the claim remained the same.” Id. at 20. Mr. Harding’s
amended federal habeas petition, however, uses constitutional
terms to make his argument. The district court concluded
that, although the “governing legal principles differ[ed],”
the thrust of his argument was parallel to his argument in
state court; therefore, it proceeded to consider the merits of
his claim. Id.
12 No. 03-2672
On the merits of the claim, the court first noted that evi-
dence of Jordan’s carjacking arrest was properly excluded
under state evidentiary requirements. Therefore, the issue,
said the district court, was whether the state’s evidentiary
ruling inhibited the defendant’s Sixth Amendment right to
present a defense. The court noted that a state law does not
infringe on a person’s right to present a defense unless it is
“arbitrary” or “disproportionate to the purpose[ ] [it is] de-
signed to serve.” Id. at 21 (alteration in original) (quoting
Rock v. Arkansas, 483 U.S. 44, 56 (1987)). The state rule at is-
sue was the equivalent of Federal Rule of Evidence 404(b),
which, the court noted, does not violate this principle. The
court further noted that the differences in the two carjack-
ings were sufficiently significant to make the state court’s
ruling to exclude evidence of Jordan’s arrest for carjacking
a reasonable one. Therefore, the district court rejected Mr.
Harding’s due process claims.
After the court rejected the petition on both claims, it cer-
tified those issues for appeal.
II
DISCUSSION
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) provides that a writ of habeas corpus only shall be
granted if 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 unreason-
able determination of the facts in light of the evidence
presented in the State court proceeding.
No. 03-2672 13
28 U.S.C. § 2254 (d). Under this provision, a federal habeas
court must find that the state’s application of federal law
was unreasonable and not simply erroneous or incorrect. See
Williams v. Taylor, 529 U.S. 362, 411 (2000). “[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.” Id. at 410. The habeas applicant
has the burden of proof to show that the application of fed-
eral law was unreasonable. See Woodford v. Visciotti, 537 U.S.
19, 25 (2002).
A. Ineffective Assistance of Counsel Claim
We first examine whether the district court erred in ruling
that the state appellate court reasonably determined that
Mr. Harding was not deprived of a fair trial based on his
claim of ineffective assistance of counsel.
1. Procedural Default
The State first submits that Mr. Harding waived his claim
of ineffective assistance of counsel because the state court
found that Mr. Harding had “acquiesced” to his counsel’s
line of questioning regarding his prior convictions. If this
characterization is correct, it shall preclude our review
because a state prisoner may only obtain federal habeas re-
view if he has exhausted state remedies and avoided proce-
durally defaulting his claim. See Thomas v. McCaughtry, 201
F.3d 995, 999 (7th Cir. 2000).
The procedural default doctrine stems from federalism
principles, specifically the idea “that federal courts will not
disturb state court judgments based on adequate and inde-
pendent state law procedural grounds.” Dretke v. Haley, 124
S. Ct. 1847, 1852 (2004). A federal court may address a habeas
14 No. 03-2672
petition when the last state court’s decision did not expressly
rely on an independent and adequate state ground but in-
stead depended on or involved the resolution of a federal
claim. See Coleman v. Thompson, 501 U.S. 722, 735 (1991). “[I]f
the state-court decision appears to rest primarily on a merits
determination of the petitioner’s claims, or to be interwoven
with those claims, and does not clearly and expressly rely on
the procedural default, there is no independent and adequate
state ground.” Farmer v. Litscher, 303 F.3d 840, 846 (7th Cir.
2002). Therefore, this court must determine if the state court
based its decision on an adequate and independent state
ground or on resolution of Mr. Harding’s federal claim.
Here, the state appellate court discussed the merits of Mr.
Harding’s claim under Strickland v. Washington. The court
spent several paragraphs discussing the prejudice prong. Only
one paragraph of this discussion addresses acquiescence,
and it appears in the middle of several other reasons the
court uses to demonstrate that Mr. Harding was not pre-
judiced. The court first noted that any deficient performance
by his counsel would be harmless because of the overwhelm-
ing evidence against the defendant. Then the court mentions
Mr. Harding’s acquiescence. Later, the state court also found
that the judge’s limiting instruction was sufficient to remedy
the ill-advised questions. We think that the state court’s
approach is most accurately characterized as addressing the
merits of the ineffective assistance claim and, in the course
of that analysis, providing three reasons why Mr. Harding
was not prejudiced by counsel’s questions. Therefore, the
last state court ruling did not rest expressly on an independ-
ent state ground. We may consider the merits of Mr. Har-
ding’s claim.
We agree with the district court’s estimation that Mr.
Harding’s answering of his attorney’s questions cannot be
No. 03-2672 15
characterized reasonably as acquiescence. Mr. Harding did
not have an opportunity to oppose or comment on his attor-
ney’s decision to ask such questions before they were pre-
sented to a jury. Mr. Harding never expressly agreed to his
attorney’s line of questioning by indicating his willingness
to answer the questions. Notably, the state trial judge made
it clear to Mr. Harding that it was not his place to determine
the course of questioning. Mr. Harding had no real choice
but to attempt to appear cooperative.
2. Merits
Because Mr. Harding’s ineffective assistance of counsel
claim was not waived, we must determine if the state appel-
late court reasonably held that Mr. Harding had received
effective assistance of counsel. The state appellate court
correctly identified the federal standard for an ineffective
assistance of counsel claim as the two-pronged test laid out in
Strickland v. Washington, 466 U.S. 668 (1984). The test pro-
vides that (1) the attorney’s performance must fall below an
objective standard of reasonableness, and (2) the attorney’s
deficient performance actually must have prejudiced the
petitioner. See id. at 680-82. We shall examine each of these
considerations.
a. performance of counsel
We first examine whether the state appellate court rea-
sonably applied the first prong of Strickland, regarding the
performance of Mr. Harding’s counsel. The district court
determined that the state appellate court did not make a
finding on whether counsel’s performance was objectively
unreasonable. The state contests this conclusion by noting
that the state appellate court observed that admitting evi-
16 No. 03-2672
dence of prior crimes is generally a matter of trial strategy.
The state equates this description with a determination by
the trial court that counsel’s performance was reasonable.
As a result, the state suggests that the district court should
not have evaluated the merits of counsel’s performance but
instead should have confined its evaluation to a determina-
tion of whether the state appellate court’s decision was an
unreasonable application of the first prong of Strickland.
The State accurately notes that the state appellate court
described the attorney’s decision to introduce evidence of
other crimes as generally a matter of trial strategy; it then as-
sumes that this description by the appellate court amounts
to a definitive estimation of the performance of Mr. Harding’s
attorney. We cannot accept this view. The state appellate
court did not conclude that Mr. Harding employed a rea-
sonable trial strategy or that his performance was reasonable.
The district court correctly determined that the state appellate
court did not make a finding under the first prong of
Strickland on the reasonableness of the attorney’s performance.
Accordingly, the district court correctly reviewed this issue
de novo.
The Supreme Court has not set out a specific checklist to
determine whether an attorney’s performance falls below an
objective standard of reasonableness. See Strickland, 466 U.S.
at 688. Instead, an attorney’s conduct will be judged against
prevailing norms to determine if it was reasonable in light
of the surrounding circumstances. See id. Also, a court must
be highly deferential when evaluating an attorney’s perfor-
mance. See id. at 689. In order to give the attorney a fair
evaluation, every effort must be “made to eliminate the
distorting effects of hindsight, to reconstruct the circum-
stances of counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time.” Id. at 689.
No. 03-2672 17
The performance of Mr. Harding’s counsel must be exam-
ined in light of the circumstances surrounding Mr. Harding’s
testimony. Mr. Harding’s counsel recognized the possible
prejudice of having Mr. Harding’s prior convictions pre-
sented before a jury. Accordingly, he filed a motion in limine
to have the evidence excluded. The trial court also recog-
nized that the nature of Mr. Harding’s prior convictions would
prejudice the jury when it ruled that the nature of Mr.
Harding’s prior convictions could not be introduced and
that the jury could be told only that he had been convicted
of felonies on certain dates.
During cross-examination, the prosecution introduced the
fact that Mr. Harding had given the police a false name. In
the questionable trial strategy at issue here, Mr. Harding’s
counsel then tried to explain to the jury why Mr. Harding
had given the police a false name and address and why he
feared the police. Although Mr. Harding’s credibility may
have been damaged by evidence that he provided police
with a fictitious name, we agree with the district court’s
determination that counsel’s attempt to recover from this
relatively mild disclosure by discussing Mr. Harding’s prior
convictions was far more damaging than the initial injury.
Mr. Harding’s attorney particularly injured his client when
he introduced the fact that Mr. Harding had been convicted
of armed robbery and the length of the prison term that the
defendant had served for that crime. Therefore, we agree
with the district court that counsel’s performance fell well
below the objective standard of reasonableness in Strickland.
b. prejudice
We next must address whether the state appellate court’s
application of the second prong of Strickland, whether the
18 No. 03-2672
attorney’s deficient performance was prejudicial, was unrea-
sonable. Under the second prong of Strickland, “[t]he defen-
dant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the pro-
ceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the out-
come.” Id. at 694. “Even if the odds that the defendant would
have been acquitted had he received effective representation
appear to be less than fifty percent, prejudice has been
established so long as the chances of acquittal are better
than negligible.” United States ex rel. Hampton v. Leibach, 347
F.3d 219, 246 (7th Cir. 2003).
We agree with the district court’s determination that,
although the evidence against Mr. Harding may not have
been overwhelming, the state appellate court’s decision never-
theless cannot be characterized as unreasonable. Some evi-
dence certainly weakened the prosecution’s case: the victim’s
in-court identification of Mr. Harding was subject to some
doubt because the victim had seen Mr. Harding in court as
the subject of prosecution on five prior occasions. Moreover,
the victim never reported observing any scars on his assail-
ant’s head even though Mr. Harding and his family mem-
bers testified that during the relevant time Mr. Harding had a
partially shaved head exposing two noticeable red scars.
Although these factors may have supported Mr. Harding’s
defense, the state appellate court still based its determina-
tion on considerable evidence. This evidence includes: the
victim’s unobstructed face-to-face confrontation with the
gunman for thirty seconds while standing in a well-lit inter-
section; the victim’s in-court identification of Mr. Harding as
the assailant; Mr. Harding’s possession of the victim’s car;
the officers’ testimony that Mr. Harding claimed ownership
of the car, although, upon inspection, the vehicle contained
the victim’s insurance papers and license plates and the
victim’s testimony that he had never seen Jordan before.
No. 03-2672 19
Finally, the jury was instructed to disregard the informa-
tion presented regarding Mr. Harding’s prior conviction for
armed robbery. Juries are presumed to follow all instructions
given by the court. See Weeks v. Angelone, 528 U.S. 225, 234
(2000).
We agree that the state appellate court was not unreason-
able to rely on the instruction of the jury to disregard the
reference to armed robbery. Further, regardless of whether
we characterize the evidence as “overwhelming,” there is no
question that the evidence supporting the conviction was
considerable; it included an in-court identification and
testimony that the accused claimed ownership of the vehicle.
See Strickland, 466 U.S. at 696 (“[A] verdict or conclusion
only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record
support.”). We cannot conclude that the state appellate court
unreasonably applied Strickland when it held that counsel’s
error did not undermine confidence in the verdict in light of
the jury instruction and what it properly considered as
overwhelming evidence.
B. Due Process Claim
We now turn to the issue of whether the district court erred
in ruling that the state appellate court acted reasonably in its
assessment of the trial court’s exclusion of evidence relating
to Jordan’s arrest for carjacking.
1. Fair Presentment
First, we must consider whether Mr. Harding fairly pre-
sented the claim to the state court. AEDPA requires a peti-
tioner to exhaust all available remedies in state court prior
to the issuance of a writ of habeas corpus. See 28 U.S.C.
20 No. 03-2672
§ 2254 (b)(1). State courts must have a fair opportunity to
address constitutional questions before they are presented
to a federal court. See United States ex rel. Sullivan v. Fairman,
731 F.2d 450, 453 (7th Cir. 1984). Specifically, “[i]f a habeas
petitioner wishes to claim that an evidentiary ruling at a
state court trial denied him the due process of law guaran-
teed by the Fourteenth Amendment, he must say so, not
only in federal court, but in state court.” Duncan v. Henry,
513 U.S. 364, 366 (1995). “For a constitutional claim to be fairly
presented to a state court, both the operative facts and the
‘controlling legal principles’ must be submitted.” Rodriguez
v. Scillia, 193 F.3d 913, 916 (7th Cir. 1999) (internal citations
omitted).
We have substantial concerns as to whether Mr. Harding
ever raised either a Sixth or a Fourteenth Amendment claim
in the state court. In Wilson v. Briley, 243 F.3d 325 (7th Cir.
2001), we noted that this court has considered four factors
to determine whether a petitioner fairly presented his claim
to the state court:
(1) whether the petitioner relied on federal cases that
engage in constitutional analysis; (2) whether the peti-
tioner relied on state cases which apply a constitutional
analysis to similar facts; (3) whether the petitioner
framed the claim in terms so particular as to call to
mind a specific constitutional right; and (4) whether the
petitioner alleged a pattern of facts that is well within
the mainstream of constitutional litigation.
Id. at 327. We further noted:
“Abuse of discretion” and “improper factors” are not
terms that Illinois lawyers and judges, by quirk of local
legal idiom, use to articulate constitutional arguments.
To the contrary, abuse-of-discretion arguments are
ubiquitous, and most often they have little or nothing to
No. 03-2672 21
do with constitutional safeguards . . . . Indeed, the fact
that Wilson relied upon state cases which engaged in a
non-constitutional analysis based solely on state law
principles belies the notion that the Illinois appellate
court should have understood that Wilson was invoking
his rights under the U.S. constitution.
Id. at 328 (citations omitted).
Initially, we note that Mr. Harding’s state appellate court
brief frames the issue as whether the trial court erred when
it refused to admit evidence of another crime committed by
Jordan. As the district court noted in reviewing the habeas
petition, only in the opening paragraph of his state appellate
brief does Mr. Harding make reference to a constitutional
claim. Specifically, Mr. Harding stated that the trial court’s
refusal to allow him to introduce evidence of Jordan’s arrest
“violated his constitutional right to introduce evidence in his
own defense and denied him a fair trial.” R.32, Ex.B at 14.
The remaining discussion dealt solely and specifically with
the issue in terms of evidence law. For example, Mr.
Harding proposed an abuse of discretion standard as the
appropriate standard of review for “a question of the
admissibility of evidence.” Id. He then cited numerous state
court cases addressing the admissibility of evidence, the
probative value of similar evidence and dangers of unfair
prejudice. Specifically, Mr. Harding asserted that the evi-
dence was admissible as part of a common scheme. Instead
of claiming that this evidence was necessary to ensure his
right to present a defense or to provide a fair trial, Mr. Har-
ding summarized that the evidence was merely admissible
because it was “probative of the truth of Harding’s state-
ment that Jordan gave him Colon’s car.” Id. at 17.
Accordingly, when the state appellate court ruled on the
issue it addressed the claim as an “an evidentiary matter”
22 No. 03-2672
committed to the trial court’s discretion. R.32, Ex.A at 8-10.
Taking its cue from Mr. Harding’s submission, the state
court addressed whether the evidence was relevant as part
of a common scheme. After the appellate court affirmed the
trial court’s exclusion of the evidence by addressing it as a
state law evidentiary issue, Mr. Harding did not clarify that
he was actually seeking review of a constitutional violation.
Instead, Mr. Harding presented his appellate court argu-
ment verbatim when he petitioned for leave to appeal to the
Supreme Court of the State of Illinois.
Mr. Harding now asserts a violation of his Sixth and
Fourteenth Amendment rights. In contrast to his briefs on
direct appeal, Mr. Harding now relies upon federal cases
discussing federal law. In his state court brief, he had in-
cluded only an introductory sentence making a passing re-
ference to his right to present evidence and his right to a
“fair trial.” This reference was not sufficient “to give the
state courts a meaningful opportunity to pass upon the sub-
stance of the claims later presented in federal court.” Chambers
v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001) (citations
omitted) (“A mere ‘passing reference’ to a constitutional
issue certainly does not suffice.”). Nearly every portion of
his state court argument pointed to a state evidentiary issue.
The strongest argument that Mr. Harding could make for
fair presentment was that he had “framed the claim in terms
so particular as to call to mind a specific constitutional right.”
Wilson, 243 F.3d at 327. However, his subsequent submis-
sion to the Supreme Court of Illinois belies this contention.
When the state appellate court addressed his contention as
only an evidentiary issue, Mr. Harding merely presented his
argument without changes to the Supreme Court. He did
not explain that the appellate court improperly overlooked
or mischaracterized his claim. Mr. Harding did not present
“both the operative facts and the controlling legal princi-
No. 03-2672 23
ples” to the state court. Chambers, 264 F.3d at 738. In sum,
the state court did not have a meaningful opportunity to
consider the claims Mr. Harding now submits.
2. Merits
Even if we were to conclude that Mr. Harding’s single
sentence provided the state courts a fair opportunity to ad-
dress the federal claim, we must conclude that the claim is
without merit.
Mr. Harding asserts that he was denied his Sixth
Amendment right to present a defense and his Fourteenth
Amendment right to a fair trial when he was prohibited
from offering evidence that Jordan was arrested less than a
month after the carjacking and that he lived within a block
of where it took place.
A state court’s decision to exclude evidence may implicate
the Constitution and the defendant’s right to present his
defense. See Chambers v. Mississippi, 410 U.S. 284 (1973). The
Court later explained in Rock v. Arkansas, 483 U.S. 44 (1987),
that the “restrictions of a defendant’s right to testify may
not be arbitrary or disproportionate to the purposes they are
designed to serve.” Id. at 55-56. A state “may not apply a
rule of evidence that permits a witness to take the stand, but
arbitrarily excludes material portions of his testimony.” Id.
at 55.
The state court determined that a subsequent car theft was
a “collateral issue not germane to the issues before the
court” without some “connection” or “nexus” between the
two car thefts. R.32, Ex.K at Z-19 to Z-30. Therefore, it ex-
cluded the evidence under the Illinois equivalent of Federal
Rule of Evidence 404(b). Rule 404(b) is not unconstitutional
and therefore Illinois’ equivalent is not unconstitutional. See
24 No. 03-2672
Edmunds v. Deppisch, 313 F.3d 997, 999 (7th Cir. 2002). Its
restrictions are not disproportionate to the purposes they are
designed to serve. Accordingly, “if [the state court’s] ruling is
reasonable, then there is no basis for deeming it unconstitu-
tional.” Id. Here, the state court’s decision is reasonable; it is
based on clear differences between the carjacking in this case
and Jordan’s carjacking. The two carjackings took place at
different times of the day, in different locations and with a
different number of victims. Furthermore, here, the victim
was threatened with a real gun whereas Jordan supposedly
had used a toy gun. Therefore, we conclude that the state
court’s application was reasonable and that the interests
served by the Illinois Equivalent of Rule 404(b) “justify the
limitation imposed on the defendant’s constitutional right
to testify.” Rock, 483 U.S. at 56.
Conclusion
For the foregoing reasons, we believe that the district
court committed no reversible error in its adjudication of
this petition for relief under 28 U.S.C. § 2254. Accordingly,
the judgment of the district court is affirmed.
AFFIRMED
No. 03-2672 25
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-23-04