Cleveland Bynum v. Bruce Lemmon ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2634
C LEVELAND C. B YNUM,
Petitioner-Appellant,
v.
B RUCE L EMMON,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:05-CV-374—Philip P. Simon, Judge.
A RGUED F EBRUARY 25, 2008—D ECIDED M ARCH 27, 2009
Before R OVNER, W OOD , and W ILLIAMS, Circuit Judges.
R OVNER, Circuit Judge. A Lake County, Indiana court
convicted Cleveland Bynum of murdering five people
and sentenced him to 300 years’ imprisonment. Bynum
filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, contending that his trial counsel was ineffective
in failing to put him on the stand at the hearing on his
motion to suppress his post-arrest confessions to the
murders. Bynum contends that his confession was
coerced and that, had he testified about the coercion, the
2 No. 07-2634
trial court would have granted his motion to suppress. The
district court denied Bynum’s petition and, because he
has not shown that he was prejudiced by his counsel’s
ineffectiveness, we affirm.
I.
On February 16, 2000, Bynum began arguing with his
friend Anthony Jeffers. Bynum was upset because Jeffers
had told people that Bynum was a drug dealer. A third
person, Elizabeth Daily-Ayres, witnessed the confronta-
tion. Later, in the early hours of February 17, Bynum
resumed the argument, this time at Jeffers’s home. Jeffers’s
girlfriend, Angie Wallace, was present during this
second argument along with Wallace’s 18-month-old
daughter, her sister Susan, and Susan’s thirteen-year-old
son, “L.B.” That night, L.B., sleeping in a different room,
was awakened by five gunshots. L.B. testified at trial that,
immediately following the first few shots and while he
was still in the bedroom, he heard two men talking. He
testified that one voice was Bynum’s, even though he had
met Bynum only once before. According to L.B., Bynum
said “something about putting another shell in.” L.B. stated
that the other man, whose voice he did not recognize, said
“[D]on’t rush me,” and Bynum responded “[S]hoot her
in the head.” After Bynum and the second man departed,
L.B. left the bedroom and discovered that Jeffers, Angie
Wallace, and Susan Wallace were all dead. The 18-month-
old child was spattered with blood, but she was still alive.
On that same evening in a different house, Elizabeth
Daily-Ayres, Sheila Bartee, and Michelle Fliris were
No. 07-2634 3
preparing for bed. According to Fliris, Daily-Ayres paged
someone and received a phone call a few moments later.
She then decided to go to the liquor store along with
Bartee. Fliris went to sleep, but awoke several hours later
to find that Daily-Ayres and Bartee had never returned
from the store. Fliris noticed a piece of paper Daily-Ayres
had left by the phone; on it was written the name “Chris”
as well as a phone number. (Bynum, whose middle name
is “Christopher,” often goes by the nickname “Chris.”) The
next day, police found Daily-Ayres’s and Bartee’s bodies
lying on the ground in a baseball park, riddled with gun-
shot wounds.
On February 18, officers arrested Bynum and held him
for two days on a probation violation. During that time,
Bynum made two statements to police. In his first state-
ment, made on the day of his arrest, he admitted killing
Jeffers and the Wallace sisters. He also admitted that he
knew Daily-Ayres and had given her his pager number,
but insisted that he had not shot her or Bartee. Instead, he
reported that Daily-Ayres and Bartee were present at
Jeffers’s home when he shot the other three victims, but
that they left accompanied by two men, Deandre
MacIntosh and Terrell Jackson. Bynum acknowl-
edged that he knew MacIntosh and Jackson intended to
kill Daily-Ayres and Bartee, but claimed that he had
nothing to do with those murders. According to the
arresting officers, they read Bynum his Miranda rights
before he gave his statement. Bynum also signed a waiver
form in which he acknowledged that he was advised of
his constitutional rights, including his right to counsel,
and that nonetheless he waived those rights. He also
4 No. 07-2634
acknowledged in writing that his statement was volun-
tary and that no one had threatened him.
Two days later Bynum signed a second, identical written
waiver and made a second statement. He confirmed that
he had killed Jeffers and the Wallaces. This time, how-
ever, he exonerated MacIntosh and Jackson, instead
claiming that Jeffers shot Daily-Ayres and Bartee before
Bynum killed him. He knew this, he said, because he
witnessed the murders and because Jeffers used Bynum’s
gun. Then, Bynum continued, Jeffers forced him at gun-
point to drag the bodies to the baseball park where they
were found. Bynum explained that he had walked back
to Jeffers’s house with Jeffers. Jeffers gave the gun back to
Bynum, but when they got into an argument and began
pushing each other, the gun accidentally went off, hitting
Jeffers. Angie and Susan Wallace began to yell and ap-
proached Bynum, who interpreted their conduct as a
threat and shot them both. Then, Bynum claimed, he
went home and, the next morning, threw his gun in a lake.
Before trial, Bynum met with his appointed counsel,
Charles Graddick. According to Bynum’s testimony at
his post-conviction hearing, he told Graddick that during
his interrogation, police threatened him with violence
when he asked for a lawyer. Bynum also reported that
the officers had handcuffed him to a chair for nine
hours, deprived him of food and water, and refused to
let him use the bathroom. Byum further claimed that
Officer Louis Donald told him that the police had
Bynum’s fiancée in custody and would charge her with
obstruction of justice and harboring a fugitive, events
No. 07-2634 5
that would require that their son enter child protective
services. It was only after seeing his fiancée at the police
station, Bynum continued, that he agreed to sign the
waiver form and make his first statement. Finally, Bynum
claimed that Donald fabricated the second confession.
Graddick did not respond to these concerns immediately,
but at trial, he moved to suppress Bynum’s confessions
on the theory that they were coerced. Graddick did not
ask Bynum to testify at the mid-trial suppression
hearing, instead questioning only the three officers who
took Bynum’s statements. The officers testified that
Bynum never asked for counsel, never told them he
was tired or hungry, and at no point during the inter-
rogation seemed unwilling to talk to them. The officers
also denied physically threatening Bynum or coercing him
in any way, although they acknowledged that Bynum
seemed nervous and was worried about his family. More-
over, the State of Indiana introduced into evidence the
two waiver forms.
After the officers testified and counsel presented argu-
ment, the trial court judge ruled that Bynum’s confessions
were voluntary and denied the motion to suppress. The
judge explained that he found the officers’ testimony
credible, noting that “the police in no way interfered with
the voluntariness of the confession” and that “the defen-
dant was properly Mirandized and apprised him of his
rights, and he was given an opportunity to bring in an
attorney if he desired to do so.” After the remainder of
the trial, a jury convicted Bynum of five counts of murder,
largely based on the confessions.
6 No. 07-2634
Bynum challenged his conviction on direct appeal to no
avail. He then sought postconviction relief in state court
with new counsel, arguing that his trial lawyer was
ineffective in failing to put him on the stand to testify at
the suppression hearing. At an evidentiary hearing,
Graddick testified that he did not recall Bynum ever
telling him that he had been prevented from obtaining a
lawyer, and maintained that if Bynum had told him
about that, he would have moved to suppress the state-
ments before trial. Moreover, Graddick explained that
he decided to move to suppress the confessions during
trial rather than before because he did not want to give
the state advance notice of his trial strategy. And Graddick
stated that, in his view, the best way to show coercion
was to get the officers to tell inconsistent stories about
the interrogation. Finally, he described his fears that, if
put on the stand, Bynum’s version of events would not
withstand cross-examination:
Counsel: Why was it that if you did in fact have a
suppression hearing, you would not have
had Mr. Bynum testify in that portion of
the trial?
Graddick: I was afraid for Mr. Bynum because I had
had many discussions with Mr. Bynum,
and each time I’d have an at-length discus-
sion with Mr. Bynum, I became more and
more sure that once he took the stand,
that he couldn’t hold up.
Counsel: All right. And what was it that he told you
about what had occurred at the police
No. 07-2634 7
station that would have led you to believe
that he could not hold up with respect to—
Graddick: Well, in part his version of what had taken
place, and when I would ask him ques-
tions about it, I was always able to pick
holes in what he was saying and make it
not believable.
Therefore, Graddick continued, he concluded it would not
be in Bynum’s best interest to testify.
A Lake County, Indiana court denied Bynum
postconviction relief. The court noted that Graddick
made “tactical choices to raise the issues that he be-
lieved had merit and to raise them in the way he
thought was in the best interest of his client.” Because
Graddick was skeptical that Bynum’s version of events
was true, the court continued, he reasonably attempted
to suppress the confessions using police testimony
alone. Finally, the court concluded that Graddick’s strate-
gic decisions did not fall below prevailing professional
norms and did not prejudice Bynum.
Bynum sought review in the Indiana Court of Appeals,
arguing that the Lake County court erred in concluding
that Graddick’s performance was constitutionally ade-
quate. The Court of Appeals disagreed. First, addressing
whether Graddick’s representation was deficient, the
court observed that, at the suppression hearing,
Graddick successfully established through questioning
the police officers that Bynum told the officers he was
afraid for his fiancee’s safety. Even after the trial court
denied the motion to suppress, noted the Court of Appeals,
8 No. 07-2634
Graddick sought to undermine the officers’ credibility by
questioning them about Bynum’s allegations that they
threatened him and his family. This aggressive ques-
tioning led the Court of Appeals to conclude that
Graddick’s performance was not deficient. The court
reasoned: “Mere disagreement with trial counsel’s han-
dling of his defense does not make an ineffective
assistance claim.”
Moreover, continued the court, even if Graddick had
called Bynum to testify, Bynum would not have been
able to show that he had been prejudiced because the
trial court still could have reasonably denied the motion
to suppress. Assuming that Bynum’s testimony had been
offered at the suppression hearing, the court explained,
the trial court would still have weighed that testimony
against the officers’ statements as well as the waiver
forms Bynum had signed. The court concluded that,
because Bynum had failed to substantiate his account of
events, the trial court could not have been expected to
credit his claims in light of other contrary evidence. The
Court of Appeals therefore affirmed the denial of relief
and the Indiana Supreme Court declined to hear the case.
Bynum next turned to federal court, renewing his
argument that Graddick was ineffective in failing to put
Bynum on the stand and also advancing a new theory:
that Graddick had failed to adequately review the state’s
discovery, his own notes, and Bynum’s letter to him
before trial, and additionally had failed to spend enough
time discussing the case with Bynum, his family, and
witnesses. The district court rejected the latter claim as
No. 07-2634 9
procedurally defaulted because Bynum had not ex-
hausted his state court remedies. And the court concluded
that the former claim fared no better. Even though the
court concluded that Graddick was clearly ineffec-
tive—Bynum’s testimony was the only evidence of coer-
cion there was, and his testimony at the suppression
hearing, outside the presence of the jury, would not
have damaged his case—the court reasoned that Bynum
could not show that he was prejudiced by Graddick’s
ineffectiveness. The court therefore concluded that the
state appellate court’s ruling on the question of preju-
dice was not an unreasonable application of clearly estab-
lished law and denied Bynum’s petition for collateral
relief. The court also granted a certificate of appealability
limited to whether Graddick was ineffective in failing
to have Bynum testify at the suppression hearing.
II.
Bynum’s appeal challenges the state appellate court’s
conclusions as to both prongs of his claim that his trial
counsel was ineffective. He argues that the Indiana Court
of Appeals erred in concluding that Graddick’s perfor-
mance was objectively reasonable. And he contends that
both the state appellate court and the district court
should have concluded that he was prejudiced by
Graddick’s ineffectiveness. Our review of the district
court’s decision is de novo. See Julian v. Bartley, 495 F.3d
487, 491 (7th Cir. 2007).
We begin with limitations on the scope of our review. We
may grant collateral relief from Bynum’s state-court
10 No. 07-2634
conviction only if the state courts’ adjudication of his
ineffectiveness claim resulted in a decision that was
either contrary to, or involved an unreasonable applica-
tion of, federal law as determined by the Supreme Court
of the United States, or if the state courts’ decision was
based on an unreasonable determination of the facts
given the evidence before the state courts. 28 U.S.C.
§ 2254(d); Barrow v. Uchtman, 398 F.3d 597, 603 (7th Cir.
2005). A state-court decision is contrary to clearly estab-
lished law if it applies a legal standard inconsistent with
governing Supreme Court precedent or contradicts the
Supreme Court’s treatment of a materially identical set
of facts. Bell v. Cone, 535 U.S. 685, 694 (2002) (citations
omitted); Goodman v. Bertrand, 467 F.3d 1022, 1026 (7th Cir.
2006). A state court unreasonably applies Supreme
Court precedent if the state court identifies the correct
legal rule but applies it in a way that is objectively unrea-
sonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Gilbert v.
Merchant, 488 F.3d 780, 790 (7th Cir. 2007). Our mere
disagreement with a state court’s analysis is, however, not
enough to meet this standard. Jackson v. Frank, 348 F.3d
658, 662 (7th Cir. 2003). Rather, the state court’s analysis
is reasonable so long as it stays within the “boundaries
of permissible differences of opinion.” Id.Bynum believes that he is entitled to collateral relief
because his trial counsel did not competently represent
him, thereby depriving him of the right to effective assis-
tance of counsel guaranteed by the Sixth and Fourteenth
Amendments. See Gideon v. Wainright, 372 U.S. 335 (1963);
Jackson v. Miller, 260 F.3d 769, 775 (7th Cir. 2001). A con-
victed defendant challenging counsel’s effectiveness
No. 07-2634 11
must satisfy both prongs of the well-known Strickland
test: he must show that his attorney’s representation was
objectively deficient, and he must show that he was
prejudiced by the substandard performance. Strickland v.
Washington, 466 U.S. 668, 687-96 (1984); Allen v. Chandler,
555 F.3d 596, 600 (7th Cir. 2009). Bynum argues that his
trial counsel, Graddick, was objectively deficient in
failing to have him testify at the suppression hearing, and
that had he testified, his confessions would have been
suppressed, leaving the state with insufficient evidence
to support his conviction.
Turning to the first prong of the Strickland test, we
agree with Bynum that the Indiana Court of Appeals
unreasonably concluded that Graddick’s decision to
keep him from testifying fell within the range of competent
legal representation. Bynum’s confessions were the crux
of the case against him. The suppression motion was
therefore critical to the defense: without the confessions,
the prosecution would have been left to depend on the
testimony of a thirteen-year-old boy who, after meeting
Bynum only once, merely heard a voice from another
room that he thought was Bynum’s. Moreover, Bynum’s
account of the officers’ coercive conduct during his inter-
rogation was the only available evidence of coercion. True,
Graddick testified at the post-conviction hearing that
he intended to elicit evidence of coercion through the
officers’ testimony. But this plan, as the district court aptly
observed, is “not trial strategy; it is television fantasy.”
Bynum v. Buss, 2007 WL 1749225, at *5 (N.D. Ind. June 14,
2007); see also Goodman, 467 F.3d at 1029 (observing
that “[t]here is little tactical wisdom in counsel resting on
12 No. 07-2634
his hands and assuming the government would help
make the defense case for him”); Barrow, 398 F.3d at 605(rejecting claim that counsel’s failure to present any
evidence was legitimate strategic move). In any event,
the “strategy” failed, as a competent attorney might
expect: the officers unanimously and consistently stated
that they had not coerced Bynum. And without the ad-
mission to coercion that Graddick had hoped the officers
would give, he was left with no evidence that
Bynum’s confessions were coerced. A motion to suppress
allegedly involuntary confessions cannot succeed without
at least some evidence that the confessions were coerced.
See Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)
(holding that confession is involuntary only if police
coercion or overreaching overbore the accused’s will and
caused the confession); Conner v. McBride, 375 F.3d 643,
651 (7th Cir. 2004) (same).
Moreover, Graddick’s reason for keeping Bynum off
the stand—that he could not withstand cross-examination
and it might prejudice his defense—was baseless. Of
course Bynum would have been cross-examined,
perhaps rigorously so. But the mid-trial suppression
hearing was conducted outside the jury’s presence. Under
Indiana law, the question whether to suppress the con-
fessions was a question for the judge alone. See Miller v.
State, 770 N.E.2d 763, 772-73 (Ind. 2002). And in any case,
as the district court observed, “testimony on a motion to
suppress is not admissible at trial as evidence of the
defendant’s guilt.” Thomas v. State, 734 N.E.2d 572, 574
(Ind. 2000). Thus, even if Bynum had crumbled under
cross-examination, it would not have affected the jury’s
estimation of his guilt.
No. 07-2634 13
The only way Bynum could have succeeded on his
motion to suppress was to put forth evidence of coercion
through his own testimony. And any prejudicial testi-
mony Bynum gave at the suppression hearing would not
have affected any other part of the proceedings. Graddick
thus had no reasonable option but to put Bynum on
the stand. Although we review trial counsel’s per-
formance deferentially, see Ben-Yisrayl v. Buss, 540 F.3d 542,
547 (7th Cir. 2008), we cannot conclude in this case that
Graddick’s decision to keep Bynum from testifying was
sound trial strategy. Rather, it fell well outside the “range
of competence demanded by attorneys in criminal cases.”
See Strickland, 466 U.S. at 687; Barrow, 398 F.3d at 605. The
conclusion reached by the Indiana Court of Appeals, that
Graddick’s failure to call Bynum as a witness was a
legitimate trial strategy, is therefore an unreasonable
application of the Strickland standard. See 28 U.S.C.
§ 2254(d)(1).
To succeed in obtaining relief, however, Bynum must
also show that he was prejudiced by Graddick’s ineffec-
tiveness. Under Strickland, a defendant must prove that
there is a reasonable probability that, but for his lawyer’s
mistakes, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694; see also Toliver v.
McCaughtry, 539 F.3d 766, 774 (7th Cir. 2008). A reasonable
probability means “a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694;
see also United States v. Wilson, 237 F.3d 827, 832 (7th Cir.
2001) (noting in different context that “reasonable prob-
ability” is not more than 50%). To succeed on this prong
of the Strickland test, Bynum must show that, had he
14 No. 07-2634
testified, there was both a reasonable probability that he
would have prevailed on the motion to suppress and a
reasonable probability that, if his confessions were sup-
pressed, he would have been acquitted. Strickland, 466
U.S. at 694; Richardson v. Briley, 401 F.3d 794, 803 (7th Cir.
2006).
We can readily assume that Bynum would have been
acquitted had the two confessions been suppressed: the
prosecution would have been left with no evidence of
Bynum’s guilt except the testimony of L.B., significantly
weakening the state’s case. See Eckstein v. Kingston, 460
F.3d 844, 848 (7th Cir. 2006) (observing that verdict that is
only weakly supported by the record is more likely to
have been affected than one that is overwhelmingly
supported). The more difficult question is whether it is
reasonably probable that Bynum would have prevailed on
the motion to suppress had he testified. And the answer
to that question depends on the likelihood that the trial
court would have credited Bynum’s testimony over the
contrary evidence—the three police officers’ testimony
and Bynum’s signed waivers of rights.
We know that the trial court assessed the testimony of
the officers (which Bynum had the opportunity to chal-
lenge at the suppression hearing) and concluded that
they were credible. We must presume that this con-
clusion was correct, since it was reached after a hearing
on the merits and is supported by the record. See Maggio
v. Fulford, 462 U.S. 111, 116-18 (1983); Armstrong v. Young,
34 F.3d 421, 426 (7th Cir. 1994). Although the trial judge
did not assess during the trial the credibility of Bynum’s
No. 07-2634 15
allegations of coercion, the judge implicitly made such
an assessment during the postconviction proceedings,
where Bynum offered his testimony about coercion to
that same judge. We may infer from the judge’s denial of
postconviction relief that he did not think the testimony
would have changed the outcome of the suppression
hearing. See United States v. Toro-Pelaez, 107 F.3d 819, 825
(10th Cir. 1997) (district court’s denial of motion to sup-
press implicitly resolved credibility issues in favor of
police officers rather than defendant); Armstrong, 34 F.3d
at 426-27 (ruling that where one version of facts would
have led court to grant motion to suppress, and court
denied the motion, federal habeas corpus court could
infer that court rejected that version of the facts). It would
have been useful had the postconviction court explained
why it did not credit Bynum’s testimony, but we cannot
say that its ultimate conclusion is unreasonable or that
the Indiana Court of Appeals unreasonably adopted it. We
conclude, therefore, that the Court of Appeals permissibly
ruled that it was not reasonably probable that Bynum
would have prevailed on the motion to suppress had he
testified.
The decision of the Indiana Court of Appeals on the
question of prejudice is acceptable for another reason. That
court filled in the gap left by the postconviction court by
reasonably answering the question of how to weigh
Bynum’s testimony against the officers’ testimony and
the signed waiver forms:
At trial, the three detectives provided consistent
testimony that contradicted Bynum’s assertions and
the State introduced Bynum’s two signed waiver
16 No. 07-2634
forms executed before each statement was made.
Bynum is correct that a defendant’s assertions cannot
be discounted merely because of his status as a defen-
dant or the heinousness of the underlying crimes. But
a court also cannot be expected to accept wholesale
unsubstantiated accusations of egregious police mis-
conduct.
This conclusion is not based on an unreasonable under-
standing of Strickland or an unreasonable view of the facts.
See 28 U.S.C. § 2254(d). Even if Bynum had testified, the
only support for his claims of coercion would have
been his own uncorroborated and self-serving testimony.
He did not present any physical evidence of coercion
or first-hand witness accounts of the interrogations.
Without more support to Bynum’s story, it was
permissible for the state appellate court to conclude that
there was not a reasonable probability that the trial court
would have accepted Bynum’s version of events. See
Mahaffey v. Page, 151 F.3d 671, 683-84 (7th Cir. 1998)
(holding that petitioner was not prejudiced by counsel’s
decision not to call sole witness to petitioner’s alleged
beating at suppression hearing because testimony of
arresting officers and assistant attorneys, as well as
absence of physical evidence of coercion, made it
unlikely that motion to suppress the confessions would
have been granted), overruled on other grounds by
Mahaffey v. Page, 162 F.3d 481 (7th Cir. 1998); United States
v. Madison, 689 F.2d 1300, 1308 (7th Cir. 1982) (holding that
consistent testimony given by three officers made it
unlikely that defendant’s motion to suppress his con-
fession as coerced would have been granted even though
two witnesses to the interrogation had not testified at
No. 07-2634 17
suppression hearing); see also United States v. Dean, 550
F.3d 626, 630 (7th Cir. 2008) (trial court’s decision to
credit testimony of two officers over that of defendant
was not clearly erroneous where there was no evidence
that officers had testified untruthfully). The state courts’
judgment that Bynum did not satisfy the prejudice
prong of Strickland is thus within the “boundaries of
permissible differences of opinion.” Jackson, 348 F.3d at 662.
III.
The district court correctly denied Bynum’s petition for
a writ of habeas corpus. Bynum’s claim that his trial
counsel was ineffective for failing to put him on the
stand to testify at his suppression hearing required him
to show both that counsel was ineffective and that coun-
sel’s mistakes prejudiced him. Although we conclude
that counsel was ineffective, Bynum was not prejudiced.
The state courts ruled that it was not reasonably probable
that, had Bynum testified, he would have succeeded on
his motion to suppress. This conclusion was neither
contrary to Supreme Court precedent nor based on an
unreasonable determination of the facts in light of the
evidence presented at Bynum’s trial and at the
postconviction evidentiary hearing. The state court there-
fore reasonably concluded that Bynum was not preju-
diced by his attorney’s failure to have him testify at the
suppression hearing.
A FFIRMED.
3-27-09