Ben-Yisrayl, Obadyah v. Buss, Ed ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-2151 and 07-2281
O BADYAH B EN-Y ISRAYL, formerly known as
C HRISTOPHER P ETERSON,
Petitioner-Appellant,
Cross-Appellee,
v.
E DWIN G. B USS, Superintendent,
Respondent-Appellee,
Cross-Appellant.
____________
Appeals from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 06 C 577—Allen Sharp, Judge.
____________
A RGUED JANUARY 11, 2008—D ECIDED A UGUST 28, 2008
____________
Before B AUER, P OSNER and E VANS, Circuit Judges.
B AUER, Circuit Judge. Obadyah Ben-Yisrayl, formerly
known as Christopher Peterson, was convicted of two
counts of murder by an Indiana jury. After extensive
proceedings through the Indiana and federal courts, he
2 Nos. 07-2151 and 07-2281
was ultimately sentenced to two consecutive sixty-year
terms of imprisonment. He filed a petition for a writ of
habeas corpus, claiming various constitutional violations.
The district court denied the petition in part and granted
the petition in part. We reverse the district court’s grant
of the petition and affirm the denial.
I. BACKGROUND
On the afternoon of December 19, 1990, Ilija (Eli) and
George Balovski were found dead inside their tailor shop
in Gary, Indiana. Both died of shotguns wounds to the
head.
Shortly after the Balovski killings, Antwion McGee, a
friend of Ben-Yisrayl’s, met with Ben-Yisrayl, who told
McGee that he “got the guys at the tailor shop” and then
described the murders in detail. McGee passed this
information on to the police. The police then went to Ben-
Yisrayl’s home and obtained consent to search the home
from petitioner’s mother, who lived with him. After
searching the home, the police discovered a shotgun in
Ben-Yisrayl’s closet, which tests later confirmed had fired
a spent shell casing found at the scene of the Balovski
murders. The police took Ben-Yisrayl into custody, where-
upon he confessed to shooting the Balovskis, giving a
detailed account of the murders. Ben-Yisrayl was further
questioned about a series of other murders that had
occurred in the area surrounding Gary which, because of
the weapon involved, were called in media reports the
“shotgun killings.” Ben-Yisrayl admitted to being the
shooter in all seven of these other shootings.
Nos. 07-2151 and 07-2281 3
Ben-Yisrayl was tried for the seven shootings over a
span of four trials. At each trial, the prosecution relied on
evidence that (1) the shotgun used in the shootings was
found in Ben-Yisrayl’s bedroom; and (2) Ben-Yisrayl
confessed to the shootings. Ben-Yisrayl presented evid-
ence that a “light-skinned man” matching the descrip-
tion of a composite sketch obtained by the police was
seen in the vicinity of each of the crimes (Ben-Yisrayl
describes himself as a “dark-skinned black man”). In the
first two trials, Ben-Yisrayl was acquitted. He was con-
victed in the third trial of two counts of murder (the
“Porter County convictions”), but this court held that the
prosecutor’s improper closing statements rendered the
convictions constitutionally invalid. Ben-Yisrayl v. Davis,
431 F.3d 1043 (7th Cir. 2005). He has yet to be retried
for these shootings. It is the fourth trial, in which Ben-
Yisrayl was convicted, that gave rise to the appeal before
us today.
On May 4, 1992, a jury convicted Ben-Yisrayl of murder-
ing the Balovski brothers. On June 5, 1992, the Indiana
trial judge, over the jury’s recommendation, imposed the
death penalty. Ben-Yisrayl’s conviction and sentence
were affirmed by the Indiana Supreme Court. Peterson v.
State, 674 N.E.2d 528 (Ind. 1996). He filed a petition for
post-conviction relief, which the trial court denied; the
Indiana Supreme Court affirmed the denial. Ben-Yisrayl v.
State, 729 N.E.2d 102 (Ind. 2000). The state court judg-
ment against Ben-Yisrayl became final on December 14,
2000.
Next he turned to the federal court, filing a motion for
writ of habeas corpus challenging his conviction and
4 Nos. 07-2151 and 07-2281
sentence. That petition was denied. Ben-Yisrayl v. Davis, 245
F. Supp. 2d 960 (N.D. Ind. 2002). While his appeal from
that decision was pending, the Indiana Supreme Court
issued Saylor v. Indiana, 808 N.E.2d 646 (Ind. 2004), ruling
that a defendant could not be sentenced to death over a
jury’s recommendation to the contrary. Ben-Yisrayl then
filed a new petition for post-conviction relief, which the
Indiana Supreme Court granted, vacating his death
sentence. We then dismissed Ben-Yisrayl’s appeal before
this court on October 29, 2004 under Younger v. Harris, 401
U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) for lack of
jurisdiction, finding that, because Ben-Yisrayl had not been
resentenced by an Indiana court, the judgment had not
become final. Ben-Yisrayl v. Davis, 114 Fed. App’x 760 (7th
Cir. 2004) (unpublished order). We noted that Ben-Yisrayl
could refile his habeas petition after resentencing and
after he exhausted his state court remedies.
On December 13, 2004, the Indiana trial court imposed
two consecutive sixty-year terms. The Indiana Court of
Appeals affirmed the sentence. After his petition for
rehearing and petition to transfer jurisdiction to the
Indiana Supreme Court were both denied, Ben-Yisrayl
filed the habeas petition at bar.
The district court entered an Amended Memorandum
Opinion and Order on May 3, 2007, granting the writ with
regard to the two sixty-year terms of incarceration based
on the court’s conclusion that the invalid Porter County
convictions played too great a role in the imposition of
the sentence, but denying the remainder of the petition,
relying on the reasoning in the first denial of habeas in
2002. This timely appeal followed.
Nos. 07-2151 and 07-2281 5
II. DISCUSSION
On appeal, Ben-Yisrayl argues that the district court
erred by (1) finding that the Indiana Supreme Court
had not unreasonably applied Strickland v. Washington;
(2) rejecting Ben-Yisrayl’s challenge to the admission of his
confession; and (3) rejecting Ben-Yisrayl’s Brady claim
regarding a failure to disclose exculpatory evidence. On
cross-appeal, the State argues that the district court had
no authority to grant habeas relief with respect to Ben-
Yisrayl’s sentence. We review each issue in turn.
We review de novo the district court’s denial of a habeas
petition. Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), we may grant habeas relief only
if the state court’s “decision was contrary to, or involved
an unreasonable application of, Supreme Court precedent,”
or “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.” 28 U.S.C.
§ 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 376, 120
S. Ct. 1495, 146 L. Ed. 2d 389 (2000). Under the “contrary to”
clause of § 2254(d)(1), the habeas petitioner must show
that the state court’s decision “applie[d] a rule that con-
tradicts the governing law set forth in [Supreme Court]
cases” or if the court “decides a case differently than [the
Supreme Court] has done on a set of materially indistin-
guishable facts.” Calloway v. Montgomery, 512 F.3d 940, 943
(7th Cir. 2008) (citing Williams, 529 U.S. at 405, 120 S. Ct.
1495 and Bell v. Cone, 535 U.S. 685, 686, 122 S. Ct. 1843, 152
L. Ed. 2d 914 (2002)). Under the “unreasonable application”
clause, a petitioner must show that the state court’s
6 Nos. 07-2151 and 07-2281
decision unreasonably extended a rule to a context where
it should not have applied or unreasonably refused to
extend a rule to a context where it should have applied.
Virsnieks, 521 F.3d at 713 (citing Jackson v. Miller, 260 F.3d
769, 774 (7th Cir. 2001)); see also Wright v. Van Patten, ___
U.S. ___, 128 S. Ct. 743, 746-47, 169 L. Ed. 2d 583 (2008)
(emphasizing that a state court’s application of clearly
established law is acceptable, even if it is likely incorrect,
so long as it is reasonable). We presume state factual
findings to be correct, unless the petitioner rebuts the
presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240, 125
S. Ct. 2317, 162 L. Ed. 2d 196 (2005); Wiggins v. Smith, 539
U.S. 519, 528, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Barrow
v. Uchtman, 398 F.3d 597, 603 (7th Cir. 2005). The presump-
tion of correctness also applies to factual findings made
by a state court of review based on the trial record. Sumner
v. Mata, 449 U.S. 539, 546-47, 101 S. Ct. 764, 66 L. Ed. 2d 722
(1981); Rodriguez v. Peters, 63 F.3d 546, 554 (7th Cir. 1995);
see Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007).
As a general matter, under post-AEDPA habeas law, we
defer to a great extent to the decisions of the state courts,
and review these decisions for reasonableness only. Badelle
v. Correll, 452 F.3d 648, 654 (7th Cir. 2006).
A. Ineffective Assistance of Counsel
Ben-Yisrayl argues that his Sixth Amendment right to
counsel was violated by his trial counsel’s negligent
Nos. 07-2151 and 07-2281 7
failure to call Patrick Fleming to testify.1 He argues that, in
ruling against him, the Indiana Supreme Court unreason-
ably applied Strickland and unreasonably determined the
facts in doing so.
As part of his post-conviction petition, Ben-Yisrayl
submitted the affidavit of Fleming, who stated that he was
in Eli Balovski’s tailor shop on the afternoon of the mur-
ders, and that as he was leaving the shop at 4:10 or 4:20
p.m., he noticed a car on the opposite side of the street
from the tailor shop with a person in the driver’s seat.
Fleming got in his own car, made a U-turn, and drove past
the car. He noticed that the man was “white” with dark
1
In his petition and on appeal, Ben-Yisrayl argues that he is
entitled to habeas relief under Strickland not only for his trial
counsel’s failure to call Fleming, but also for trial counsel’s
(1) failure to read the discovery provided to him by the state
which included information relating to Fleming and (2) failure
to investigate the exculpatory statements. However, he did not
raise these two latter issues in the Indiana courts, and the
Indiana Supreme Court did not address these other grounds,
either in its denial of post-conviction relief or its denial of Ben-
Yisrayl’s successive post-conviction relief petition. To preserve
a federal claim for collateral review, a petitioner must fairly
present the federal nature of his claim to the state courts.
O’Sullivan v. Boerckel, 526 U.S. 838, 845-48, 119 S. Ct. 1728, 144
L. Ed. 2d 1 (1999). Fair presentation requires that “both the
operative facts and the controlling legal principles” be sub-
mitted to the state courts. Hough v. Anderson, 272 F.3d 878, 892
(7th Cir. 2001). We therefore will only address the Indiana
Supreme Court’s application of Strickland to Ben-Yisrayl’s
counsel’s failure to call Fleming.
8 Nos. 07-2151 and 07-2281
hair and dark eyes, and when he drove past, the man
reached between his legs and “made sure that I couldn’t
see what he had there.” Fleming thought the man had a
gun. He also thought that the man in the car was one of
the men in the composite sketches published in area
newspapers relating to the shotgun shootings. This infor-
mation was available to Ben-Yisrayl’s counsel at trial.2
Ben-Yisrayl’s argument before the Indiana Supreme
Court rested primarily on a comparison of the evidence in
the Gary murder trial, where he was convicted, and the
first two trials, where he was acquitted. Specifically, he
noted in his first two trials he was able to present evidence
placing a “light-skinned man” at the scene of the crime,
whereas in the Gary murder trial he was not. Had he
introduced this evidence through Fleming at the trial for
the Balovski murders, Ben-Yisrayl argued before the
Indiana Supreme Court and argues before us, the out-
come would have followed that of his earlier acquittals.
The Indiana Supreme Court examined Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), in evaluating Ben-Yisrayl’s claim of ineffective
assistance. To succeed under Strickland, as the Indiana
Supreme Court understood, one must show that trial
counsel’s performance fell below an objective standard of
2
In the post-conviction proceedings, Ben-Yisrayl’s trial
counsel argued that the State had not disclosed this informa-
tion prior to trial. The post-conviction court ultimately found
that the State had, in fact, turned over the Fleming information
as part of discovery.
Nos. 07-2151 and 07-2281 9
reasonableness and that prejudice resulted. Id. at 687-88,
693, 104 S. Ct. 2052. For the first prong, review of trial
counsel’s performance “must be highly deferential” and
“every effort [must] be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Johnson v. Loftus,
518 F.3d 453, 457 (7th Cir. 2008) (quoting Strickland, 466
U.S. at 689, 104 S. Ct. 2052)). A petitioner must overcome
the “presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strat-
egy.’ ” Id. (quoting Strickland, 466 U.S. at 689, 104 S. Ct.
2052)). To show prejudice, the petitioner “must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694, 104 S. Ct.
2052. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. Again, for
the purposes of our review, the state court’s application
of these principles must be objectively unreasonable and
not merely erroneous. Yarborough v. Gentry, 540 U.S. 1, 5,
124 S. Ct. 1, 157 L. Ed. 2d 1 (2003).
Ben-Yisrayl claims the Indiana Supreme Court made
two errors, one under 28 U.S.C. § 2254(d)(1) and another
under § 2254(d)(2). Ben-Yisrayl first submits that the
Indiana Supreme Court unreasonably applied Supreme
Court precedent in finding that he was not prejudiced by
his trial counsel’s failure to call Fleming. The Indiana
Supreme Court, applying the Strickland standard, assumed
a deficiency of counsel’s performance but found Ben-
Yisrayl failed to satisfy the prejudice requirement. The
10 Nos. 07-2151 and 07-2281
Court pointed to the substantial evidence presented at
trial—most critically, the shotgun found in Ben-Yisrayl’s
closet and his confession to the killings—and noted that
Fleming’s testimony would not have “unerringly or
unmistakably” led to a different conclusion. Though
Fleming “thought” the man had a gun in the car, he did
not actually see a gun; and though there is some dispute
about the timing of the identification and the shooting
(more on this below), Fleming would not have been able
to undisputably put the man in the car at the scene near
the time of the shooting. Without these potentially ex-
culpatory details, the Indiana Supreme Court found, the
Strickland claim must fail.
Ben-Yisrayl disagrees with this result; again, our review
under the “unreasonable application” clause of 28 U.S.C.
§ 2254(d)(1) is limited to whether the Court extended a
rule to an inapplicable context or refused to extend a rule
to an applicable context. Neither of these situations is
present here. The Court properly weighed the strength of
the evidence against Ben-Yisrayl against Fleming’s af-
fidavit, and did not find a reasonable probability of a
different outcome from calling Fleming. Accordingly, we
will not disturb the Indiana Supreme Court’s reasonable
application of Strickland.
The second error claimed by Ben-Yisrayl concerns the
facts as determined by the Indiana Supreme Court. In
analyzing the prejudice prong of Strickland, the Court
“decline[d] to attach much significance to the [two previ-
ous] acquittals,” but engaged in Ben-Yisrayl’s argument
regarding these acquittals anyway. It held that the “evi-
Nos. 07-2151 and 07-2281 11
dence presented in the first two trials regarding another
possible shooter was much more compelling than that
presented in Flemings’s affidavit.” Ben-Yisrayl v. State,
729 N.E.2d at 108. In one case, the Court noted, an eyewit-
ness sitting in the victim’s car when she was shot testified
that she observed a “light complected male wearing a
trench coat” standing next to the car. In another, two
witnesses testified that they saw a “white male . . . with a
trench coat” walking toward a car “with a cylindrical
object parallel to his leg” shortly before they heard a
shotgun blast. In both of these cases the witnesses saw a
“light-skinned man” directly before the shootings. The
Court concluded: “By contrast, Fleming’s observations
do not place anyone at the crime scene at the time of the
shooting. Rather, Fleming places someone across the
street a half hour before the shootings.” The court also
noted that Fleming did not actually see a gun, even
though he “thought the man had a gun in his lap.”
Ben-Yisrayl argues that this decision was “based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding,”
in violation of § 2254(d)(2). He musters several incon-
sistencies between the record and the Indiana Supreme
Court’s factual determinations, but only one comes close to
having merit: the timing of the identification and the
shooting. Fleming’s affidavit indicates he saw the man
across the street of the tailor shop at 4:10 or 4:20;
according to Ben-Yisrayl, a brother of the two Balovskis
testified that he saw a man with a shotgun pointed at his
brother at either 4:15 or 4:30. Therefore, Ben-Yisrayl argues,
the shooting was at most twenty minutes after, and
12 Nos. 07-2151 and 07-2281
potentially contemporaneous with, Fleming’s identifica-
tion, and not “a half hour before the shootings.” This
factual issue is relevant only because the Indiana Su-
preme Court, in analyzing the prejudice element of Strick-
land, disregarded Fleming’s observations in his affidavit
because they did “not place anyone at the crime scene at the
time of the shooting.” The State chose to ignore this issue
in its brief.
A petitioner’s challenge to a state court decision based
on a factual determination under § 2254(d)(2) will not
succeed unless the state court committed an “unreasonable
error,” and § 2254(e)(1) provides the mechanism for
proving unreasonableness. See Ward v. Sternes, 334 F.3d
696, 703-04 (7th Cir. 2003). If the petitioner shows that
the state court determined an underlying factual issue
against the clear and convincing weight of the evidence,
the petitioner has “gone a long way towards proving that
it committed unreasonable error.” Ward, 334 F.3d at 704. “A
state court decision that rests upon a determination of
fact that lies against the clear weight of the evidence is,
by definition, a decision ‘so inadequately supported by
the record’ as to be arbitrary and therefore objectively
unreasonable.” Id. (quoting Hall v. Washington, 106 F.3d
742, 749 (7th Cir. 1997)). This is a daunting standard, but
not insurmountable. See Miller-El v. Cockrell, 537 U.S. 322,
123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003) (“Deference does
not by definition preclude relief. A federal court can
disagree with a state court’s credibility determination
and, when guided by AEDPA, conclude that the decision
was unreasonable.”).
Nos. 07-2151 and 07-2281 13
Upon careful review of the record, we find that the
Indiana Supreme Court determined a factual issue
against the clear and convincing weight of the evidence
when it found that the identification was a “half hour
before the shootings.” The testimony of Slavko Balovski,
the brother who saw the shooter in the tailor shop, contra-
dicts the Supreme Court of Indiana’s version of the facts.
On direct examination, Balovski was asked about the
timing of the shooting. He said that prior to the shooting,
he and his two brothers were eating lunch at the tailor
shop.
Q: [Shortly] after 4:00 o’clock, had you and your
brothers finished your food, sir?
A: Just around after 4:00, 4:00 or 4:30 or something.
Afterwards, he went back to work at the shop; sometime
later, he saw a man with a shotgun pointed at his brother.
He then ran out of the tailor shop to get help at a muffler
shop down the street, and on the way, he heard a gun-
shot. Three to four minutes had passed between the time
the shooter entered the store and the time he reached the
muffler shop. He then was asked:
Q: Was this at approximately 4:30 in the afternoon?
A: Yes, it was after 4:30.
On cross-examination, he was asked about the lighting
conditions when he left the tailor shop and fled to the
muffler shop: “It wasn’t dark, it was like sunset, it wasn’t
very dark, it was imagine at that time, 4:15” [sic].
According to this record, Balovski places the time of the
shooting at some point between “after 4:00” and “after
14 Nos. 07-2151 and 07-2281
4:30.” Separate testimony by police officers indicated that
they had been dispatched to the scene at 4:45. Comparing
this evidence with Fleming’s affidavit—stating that he
identified the individual in the car at 4:10 to 4:20—the
length of time between the identification and the
shooting is at most thirty-five minutes (extending the
period of Bolovski’s “after 4:30” until the dispatch of the
police) and at least, potentially, within the same range of
time. Therefore, the Indiana Supreme Court’s finding that
this time period was a “half hour” was a factual error
against the clear and convincing weight of the evidence.
Because the “half hour” finding falls directly within
the Indiana Supreme Court’s analysis of the prejudice
element of the Strickland, the finding reflects an “unreason-
able determination of the facts in light of the evidence
presented.” 28 U.S.C. § 2254(d)(2); see Wiggins, 539 U.S. at
528, 123 S. Ct. 2527 (recognizing that a clear factual error
“reflects ‘an unreasonable determination of the facts’ ”
under § 2254(d)). The fact that the Indiana Supreme
Court’s decision only partially rested on this fact does not
alter the reasonableness of the determination of the
Strickland claim. As in Wiggins, even a partial reliance on
an erroneous fact finding can support a finding of unrea-
sonableness. Id. (finding that, in the particular circum-
stances before the Court, the state court’s “partial reliance
on an erroneous factual finding further highlight[ed]
the unreasonableness of the state court’s decision”).
However, our analysis does not end here. Despite a
conclusion that the Indiana Supreme Court’s finding was
unreasonable, Ben-Yisrayl still must still establish that he
Nos. 07-2151 and 07-2281 15
is entitled to habeas relief. See Aleman v. Sternes, 320 F.3d
687, 690 (7th Cir. 2003); see also Harrison v. McBride, 428 F.3d
652, 665 (7th Cir. 2005) (citing Aleman, 320 F.3d at 690)
(“[E]ven when the AEDPA standard does not ap-
ply—either because the state court’s opinion was unreason-
able or because the state judiciary did not address the
constitutional claim—[a] prisoner still must establish an
entitlement to the relief he seeks.”). In this situation,
§ 2254(a) sets the standard: the court issues “a writ of
habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court only on the ground that
he is in custody in violation of the Constitution or laws
or treaties of the United States.” See Aleman, 320 F.3d
at 690.
We turn, then, to whether Ben-Yisrayl’s counsel’s failure
to call Fleming constituted deficient performance. We
assume, arguendo, that Ben-Yisrayl can meet the first prong
of the Strickland analysis. Our primary focus rests upon
whether counsel’s failure to call Fleming prejudiced his
defense. Strickland, 466 U.S. at 692, 104 S. Ct. 2052. In
doing so, we weigh the evidence in aggravation against
the totality of available mitigating evidence. Wiggins,
539 U.S. at 534, 123 S. Ct. 2527.
Ben-Yisrayl argues that Fleming, had he testified, would
have placed a man matching the composite sketch of the
shotgun killer in the vicinity of the crime within a brief
window of time before the shootings. He further argues
that he then would have introduced additional evidence
that the witness who helped the police prepare the com-
posite sketch later identified the killer as Ronald Harris.
16 Nos. 07-2151 and 07-2281
Harris, an associate of McGee’s and acquaintance of Ben-
Yisrayl’s, was later convicted of shooting one of the
victims in the original set of seven “shotgun killings.” See
Harris v. State, 619 N.E.2d 577 (Ind. 1993).
Against this, we weigh the substantial evidence intro-
duced against Ben-Yisrayl at trial, including: (1) his
confession; (2) the ballistic evidence of the shotgun found
in his home; and (3) McGee’s testimony. Ben-Yisrayl
certainly casts doubt on McGee’s story at trial, but the
jury ultimately accepted the testimony. As the State points
out, the arguably mitigating evidence regarding the
composite sketch and the Ronald Harris information
might not be as helpful as Ben-Yisrayl claims. Introducing
the composite might have opened the door to intro-
ducing the facts of the other shotgun killings, a potentially
adverse outcome regardless of whether Ben-Yisrayl
was ultimately convicted of the other murders. In the
Ronald Harris conviction, the witness who identified
Harris also saw and heard another individual acting as
an accomplice. Had any of this information been pro-
duced at trial, the State could have argued that Ben-
Yisrayl and Harris acted as accomplices in a string of
killings in Northwest Indiana. Any mitigating effect of the
Harris evidence, therefore, must be tempered by the
potential for the evidence to strengthen the case against
Ben-Yisrayl.
Putting aside these issues, we return to the core of
Fleming’s testimony: that he saw a light-skinned character
in the vicinity of the tailor shop at some point prior to
Nos. 07-2151 and 07-2281 17
the shooting.3 Weighing this against the overwhelming
evidence against Ben-Yisrayl, we cannot say with any
confidence that the introduction of this sparse testimony
would have altered the outcome of Ben-Yisrayl’s trial.
Accordingly, even though the Indiana Supreme Court
made an unreasonable determination of the facts in light
of the evidence presented, Ben-Yisrayl has failed to estab-
lish that he is entitled to habeas relief.
B. Admission of Ben-Yisrayl’s Confession
Ben-Yisrayl next contends that his confession—or his
“false” confession—was the result of an unreasonable post-
arrest restraint that violated his Fourth Amendment
rights. Under Indiana law, a person who is arrested
without a warrant must be brought before a magistrate
for a determination of probable cause within twenty-four
hours. Ben-Yisrayl was detained for thirty-six hours before
he was taken before a magistrate, and in the last twelve
hours, he confessed to the shotgun murders. The Indiana
Supreme Court found that, despite the delay in bringing
Ben-Yisrayl before a magistrate, the appropriate remedy
would not be to exclude his confession. The Court, after
examining Gerstein v. Pugh, 420 U.S. 103, 114, 95 S. Ct. 854,
43 L. Ed. 2d 54 (1975) and County of Riverside v. McLaughlin,
500 U.S. 44, 56-57, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991),
3
The police report relating to Fleming’s encounter with the man
in the car also indicated that Fleming “felt some negative
energy” when leaving the tailor shop. We decline to assign
much weight to this “energy.”
18 Nos. 07-2151 and 07-2281
found that the thirty-six hour delay was not a per se
violation of the Supreme Court’s mandate to “promptly”
bring individuals arrested without a warrant before a
magistrate. Peterson v. State, 674 N.E.2d 528, 537-39 (Ind.
1996), cert. denied, 522 U.S. 1078, 118 S. Ct. 858, 139 L. Ed. 2d
757 (1998).
Our review of this issue will be short. As long as a habeas
petitioner enjoyed an “opportunity for full and fair litiga-
tion of a Fourth Amendment claim” in state court, federal
habeas review of the claim is barred. Stone v. Powell, 428
U.S. 465, 481-82, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976);
Miranda v. Leibach, 394 F.3d 984, 990 (7th Cir. 2005); Hayes
v. Battaglia, 403 F.3d 935, 939 (7th Cir. 2005). As a general
principle, absent a subversion of the hearing process, we
will not examine whether the state courts made the right
decision. Watson v. Hulick, 481 F.3d 537, 542 (7th Cir. 2007)
(citing Cabrera v. Hinsley, 324 F.3d 527, 531 (7th Cir. 2003)).
Ben-Yisrayl claims that he was deprived of a full and
fair opportunity to litigate his Fourth Amendment
claim because the Indiana Supreme Court failed to apply
the relevant constitutional case law to the facts. He argues
that the Indiana Supreme Court failed to address Brown v.
Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), a
case which, he now points out, he presented to every
Indiana court he faced in the course of his direct appeal.
But therein lies the rub: Ben-Yisrayl had the full oppor-
tunity to litigate his claim and argue the relevant
Supreme Court precedent, including Brown, at every
stage of his proceedings in Indiana. There is no indica-
tion that the Indiana courts precluded that right. Regard-
Nos. 07-2151 and 07-2281 19
less of our own judgment of whether Brown has any
impact on Ben-Yisrayl’s case, he received a full and fair
hearing on this issue, and we will not second-guess the
Indiana Supreme Court’s reasoning. See Watson, 481 F.3d
at 542; Hayes, 403 F.3d at 939 (“[Petitioner] simply asks
us to disagree with the state courts’ decision, a path that
Stone closes.”); Cabrera, 324 F.3d at 531-32.
C. Failure to Disclose Exculpatory Evidence
Ben-Yisrayl finally argues that the state failed to disclose
material exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
Specifically, he claims that the prosecution did not dis-
close (1) that State witness Ivory “Tito” Maxwell was a
paid informant for the FBI; and (2) that the government’s
investigation of and search for the “shotgun killer” contin-
ued after Ben-Yisrayl’s arrest and purported confession.
When the government deliberately or inadvertently
withholds evidence that is material and favorable to the
defense, it violates the defendant’s right to a fair trial,
which is guaranteed by due process. Brady, 373 U.S. at 87-
88, 83 S. Ct. 1194; United States v. Wilson, 481 F.3d 475, 480
(7th Cir. 2007). The government has a duty to disclose
evidence, regardless of whether the criminal defendant
requests it, and that duty applies equally to impeachment
and exculpatory evidence. United States v. Bagley, 473
U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985); United
States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342
(1976); Wilson, 481 F.3d at 480.
20 Nos. 07-2151 and 07-2281
Ben-Yisrayl couches his claim in terms of habeas relief,
but for all intents and purposes, he has brought a new
Brady claim in the federal court, and requests plenary
review from us. Post-AEDPA habeas petitions do not
proceed in this fashion. Ben-Yisrayl fails to point us to
any specific Indiana decision that was contrary to, or
involved an unreasonable application of, Supreme Court
precedent, or resulted in a decision that was based on an
unreasonable determination of the facts. See Badelle, 452
F.3d at 656-60. He notes that he raised the Brady issue in
the Indiana courts during his post-conviction petition
and successor post-conviction petition.4 But he does not
suggest any constitutional violations in the ultimate
resolution of those issues by the Indiana courts. Id. at 656
(citing Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir. 2004)
(noting that “[t]he habeas applicant has the burden of
4
This claim is somewhat misleading, as far as we can glean
from the voluminous record. At his original post-conviction
proceeding, he argued before the Indiana trial court that the
State improperly suppressed the Fleming affidavit, not the
Maxwell information or the Bivens affidavit. In fact, in
affirming the denial of the post-conviction relief, the Indiana
Supreme Court specifically noted that “Ben-Yisrayl does not
dispute [the finding that the Fleming affidavit was properly
disclosed], and, therefore, does not put forth a claim under
Brady v. Maryland.” Ben-Yisrayl v. State, 729 N.E.2d 102, 108 n.5
(Ind. 2000). He did raise the Maxwell and Bivens issues
in his petition seeking successive post-conviction relief,
though the Maxwell information was in the form of a
Strickland claim, not a Brady claim.
Nos. 07-2151 and 07-2281 21
proof to show that the application of federal law was
unreasonable”).
Ben-Yisrayl hints at the fact that the two pieces of
evidence are “new evidence” that were not presented at
the trial court, perhaps invoking the principle that
Brady claims not raised at the state level are not procedur-
ally defaulted when the petitioner was unable to present
the claim to the state courts “because of the state’s mis-
conduct.” See Crivens v. Roth, 172 F.3d 991, 995-96 (7th Cir.
1999) (citing Reed v. Ross, 468 U.S. 1, 14, 104 S. Ct. 2901, 82
L. Ed. 2d 1 (1984) (“We will not penalize [petitioner] for
presenting an issue to us that he was unable to present to
the state courts because of the state’s misconduct.”). But
that principle does not apply here; Ben-Yisrayl affirma-
tively states that he had this information while his case
was proceeding at the state level, and that he presented
this evidence to the Indiana courts.
Because Ben-Yisrayl has not met his burden of showing
any error of constitutional magnitude by the Indiana
courts, habeas relief must be denied, and we decline his
invitation to address the merits of the Brady claim.
D. Relief Granted for Consecutive 60-Year Terms
Finally, the State argues on cross-appeal that the dis-
trict court erred in granting habeas relief to Ben-Yisrayl
with respect to the consecutive sixty-year terms imposed
after he received relief in the state court under Saylor v.
State, 808 N.E.2d 646 (Ind. 2004). The State submits that
because the Indiana Court of Appeals relied on Indiana
22 Nos. 07-2151 and 07-2281
law to affirm the consecutive sixty-year terms, and be-
cause Ben-Yisrayl cannot point to any federal basis for
habeas review, the district court erroneously granted relief.
The Indiana trial judge based Ben-Yisrayl’s consecutive
sixty-year terms in part on aggravating circumstances,
including (1) the two prior Porter County convictions
(which were later invalidated); and (2) the fact that Ben-
Yisrayl was convicted of murdering multiple victims in
the Balovski trial. Using its powers under the Indiana
Constitution to review and revise sentences, Ind. Const.
Art. 7 § 6, the Indiana Court of Appeals found that even
if the Porter County murder convictions were invalid, Ben-
Yisrayl’s enhanced sentences were proper. Under Indiana
law, according to the court, when a trial court improperly
applies one aggravating circumstances but other valid
aggravating circumstances exist, a sentence enhance-
ment may still be upheld. See Hackett v. State, 716 N.E.2d
1273, 1278 (Ind. 1999); Edwards v. State, 842 N.E.2d 849, 855
(Ind. Ct. App. 2006); Hatchett v. State, 740 N.E.2d 920, 929
(Ind. Ct. App. 2000). The Court of Appeals noted: “The
Porter County convictions were only two of three ag-
gravating circumstances found by the trial court, and
the third aggravator was clearly set forth in the court’s
sentencing statement. The court properly found that the
fact that Ben-Yisrayl murdered not one but two people
in the case, served to aggravate the crime.” Ben-Yisrayl v.
State, Cause No. 45A05-0501-CR-22, slip op. at 8-9 (Ind. Ct.
App. 2005). Citing Indiana Supreme Court precedent and
the Indiana Code, the Indiana Court of Appeals observed
that multiple killings could qualify as an aggravating
circumstance, and that a single aggravating circumstance
Nos. 07-2151 and 07-2281 23
could both enhance a sentence and impose consecutive
sentences. Id. (citing Scuggs v. State, 737 N.E.2d 385, 387
(Ind. 2000); Tobar v. State, 740 N.E.2d 109, 113 (Ind. 2003);
Ind. Code § 35-38-1-7.1(a)(2) and (d)). Following these
principles, the court found Ben-Yisrayl’s sentence appro-
priate for the double murder of the Balovskis.
The district court, citing United States v. Tucker, 404 U.S.
443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972), found that the
Porter County convictions still may have played an
improper role in Ben-Yisrayl’s sentence. The court ob-
served:
There may be some limited argument under a species
of due process with regard to the possible use of the
Porter County convictions in this case. Such is a very
narrow question that is largely of state law, but some
bits and pieces of it may be arguable under the Consti-
tution of the United States as reflected in Tucker and its
progeny.
Accordingly, the district court granted the writ and
ordered the Indiana trial court to conduct a new sen-
tencing.
This was error. Again, AEDPA limits habeas relief to
specific circumstances not found here. The Indiana Court
of Appeals decision was not “contrary to” clearly estab-
lished federal law; that is, the court did not apply a rule
that contradicts with governing law or decide a case
differently that the Supreme Court has done on a set of
materially indistinguishable facts. Nor was the decision
an unreasonable application of federal law, as the court
24 Nos. 07-2151 and 07-2281
did not refuse to extend a rule to a context where it
should have applied.
Ben-Yisrayl argues that the decision of the Indiana
Court of Appeals was contrary to and an unreasonable
application of Tucker and Townsend v. Burke, 334 U.S. 736,
68 S. Ct. 1252, 92 L. Ed. 1690 (1948). He argues that even
if the Indiana Court of Appeals conducted the proper
analysis under Indiana law, it failed to conduct an
analysis of whether the imposition of the sentence vio-
lated due process as delineated by the Supreme Court. In
Townsend, the Supreme Court found a due process viola-
tion where the sentencing court, in the absence of counsel,
relied on materially false information about a criminal
defendant’s criminal history in making its sentencing
decision. Townsend, 334 U.S. at 741, 68 S. Ct. 1252. Relying
on Townsend, the Supreme Court in Tucker overturned a
sentence where the sentencing judge had considered
two prior convictions that had subsequently been invali-
dated for violation of the defendant’s right to counsel.
Tucker, 404 U.S. at 447, 92 S. Ct. 589. These two cases stand
for the general proposition that a criminal defendant has
the due process right to be sentenced on the basis of
accurate information. See Tucker, 404 U.S. at 447, 92
S. Ct. 589; United States v. Jones, 454 F.3d 642, 652 (7th Cir.
2006).
Tucker comes closest to addressing the issue before the
Indiana Court of Appeals, and was referenced, obliquely,
by the district court. But Tucker examined a different
issue than what is before us today. Where Tucker asked
whether habeas relief should extend to a sentence based
on “misinformation of constitutional magnitude” in the
Nos. 07-2151 and 07-2281 25
form of two previous invalid convictions, the question
in this case is whether the relief should extend to a sen-
tence based on an entirely proper aggravating circum-
stance. The Indiana Court of Appeals determined that
the consecutive sentences could be based on the single
aggravating circumstance of the double murders,
exclusive of the two other invalid aggravators. It had the
authority to make this determination under the Indiana
Supreme Court’s decision in Hackett. 716 N.E.2d at 1278
(“When a trial court improperly applies an aggravator
but other valid aggravating circumstances exist, a sen-
tence enhancement may still be upheld.”). No Supreme
Court case or ruling of our court has found that the rule
in Hackett violates Tucker or Townsend in these circum-
stances. It follows, therefore, that the Indiana Court of
Appeals did not act contrary to clearly established fed-
eral law, nor did they unreasonably apply this law, in
upholding his sentence.
We are bound by a state court’s interpretations of state
law. See, e.g., Wainwright v. Goode, 464 U.S. 78, 84, 104
S. Ct. 378, 78 L. Ed. 2d 187 (1983). The Indiana Court of
Appeals properly followed the dictates of the Indiana
Code and the Indiana Supreme Court in upholding Ben-
Yisrayl’s sentence; and in making this determination, the
court did not run afoul of Supreme Court precedent.
Habeas relief should not have been granted.
III. CONCLUSION
Accordingly, we A FFIRM the district court’s decision to
deny habeas relief, and R EVERSE the district court’s
26 Nos. 07-2151 and 07-2281
limited grant of habeas relief with respect to Ben-
Yisrayl’s consecutive sentences.
8-28-08