Forrest Woods v. Gregory Schwartz ( 2009 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 08-1234
    F ORREST W OODS,
    Petitioner-Appellant,
    v.
    G REGORY S CHWARTZ, Warden,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 07 C 438—Wayne R. Andersen, Judge.
    A RGUED S EPTEMBER 24, 2009—D ECIDED D ECEMBER 9, 2009
    Before P OSNER, M ANION, and T INDER, Circuit Judges.
    M ANION, Circuit Judge. Forrest Woods was convicted
    in Illinois state court of murdering Omar Wilson and
    sentenced to forty years’ imprisonment. After unsuccess-
    fully appealing his sentence, he filed three state-court
    petitions for post-conviction relief. All were denied. He
    then filed a petition for a writ of habeas corpus under
    
    28 U.S.C. § 2254
    . The district court denied his petition,
    holding that all but one issue was procedurally barred
    2                                                No. 08-1234
    and denying relief on the single preserved issue. On
    appeal, Woods challenges the denial of his petition.
    We affirm.
    I.
    On the night of July 10, 1995, Kenya Wilson walked
    out of a bedroom in her Hazel Crest, Illinois home and
    saw her brother Omar at the bottom of the stairs being
    restrained from behind by an unknown man, later identi-
    fied as Forrest Woods. Over a span of three minutes,
    Omar alternated between calling for his brother Terrell
    Wilson and telling Kenya to go back to her bedroom.
    Then, without a word, Woods shot Omar in the back of
    the head.
    At this, Kenya ran into a bathroom and shut the door.
    Woods chased after her and tried to gain entry but fled
    when Terrell came out of his room to investigate the
    gunshot. It was at this point that Terrell got a brief look at
    Woods. The police were then called, and Omar was
    pronounced dead at the scene.
    Neither Kenya nor Terrell knew the shooter. Both
    described him as a black man with a light complexion,
    round face, and a husky or stocky build. Kenya initially
    estimated that he was between eighteen and twenty
    years old, stood between 5’7” and 5’8", and weighed
    165 pounds. At the time of his arrest, Woods was seven-
    teen, stood 5’10” and weighed approximately 225 pounds.
    To identify the shooter, the police initially presented
    Kenya with over a thousand photos, but she did not
    No. 08-1234                                               3
    recognize him in the initial batch. Over a week later,
    Officer Raymond Huggins of the Chicago Housing Au-
    thority was at the scene of a domestic disturbance. A
    suspect there volunteered the following nugget of infor-
    mation: “Did you hear about the shooting in Hazel Crest?
    Boy named Foo-Foo did it.” Huggins was familiar with
    Foo-Foo: he had previously arrested Forrest Woods using
    that alias.
    Huggins then relayed the tip to Officer Gary Gentzle,
    who was investigating Omar’s murder, and gave Gentzle
    a photo of Woods. That photo was shown to Kenya, along
    with seven other photos; she immediately identified
    Woods as the shooter. The next day both she and Terrell
    identified Woods in a lineup. The state charged Woods
    with first-degree murder; he pleaded not guilty and
    proceeded to trial.
    At the one-day bench trial, Kenya and Terrell testified
    to the events on the night of Omar’s murder, and both
    again identified Woods as the shooter. The prosecution
    also called Officer Gentzle and Omar’s mother to testify.
    The defense did not call any witnesses. Woods was
    found guilty of murdering Omar Wilson and later sen-
    tenced to forty years’ imprisonment. He then filed a
    direct appeal challenging his sentence but not his con-
    viction. The Illinois Appellate Court affirmed Woods’
    sentence, and the Illinois Supreme Court denied him
    leave to appeal.
    Woods then filed the first of three post-conviction
    petitions in Illinois state court. The first petition raised
    three issues. Pertinent here was Woods’ claim that his
    4                                              No. 08-1234
    trial counsel rendered constitutionally ineffective assis-
    tance by failing to call his brother, Harold Woods, as an
    alibi witness. Attached to the petition was an affidavit
    from Harold prepared four years after the shooting,
    stating, “I don’t recall [Woods] leaving the house any-
    time that night.” The trial court dismissed the petition,
    concluding the claims should have been presented on
    direct appeal and were thus waived. The appellate
    court, however, held that Woods’ claim of ineffective
    assistance of counsel was not waived and addressed it on
    the merits under Strickland v. Washington, 
    466 U.S. 668
    (1984). It found that Harold’s affidavit was inconclusive,
    and based on the eyewitness testimony at trial, it con-
    cluded that had Harold testified it “would not likely
    have changed the outcome of the trial” and denied the
    petition. The Illinois Supreme Court denied Woods’
    petition for leave to appeal.
    Woods then filed a second petition for post-conviction
    relief, claiming that his trial counsel was ineffective for
    failing to call his mother and brother-in-law as alibi
    witnesses. Attached to the petition were their affidavits
    attesting to Woods’ presence at home on the night of the
    murder. The trial court dismissed the petition, and the
    appellate court affirmed, holding that the claim and the
    affidavits should have been submitted in Woods’ initial
    post-conviction petition and were thus waived. It also
    held that Woods could not establish cause and prejudice
    to escape the procedural bar of waiver. The Illinois Su-
    preme Court again denied Woods’ petition for leave
    to appeal.
    No. 08-1234                                               5
    Undeterred, Woods filed a third petition for post-convic-
    tion relief. In it, he raised three claims with twelve
    distinct sub-claims. The trial court dismissed the petition
    as “frivolous and patently without merit.” On appeal,
    Woods’ appointed counsel filed a motion to withdraw
    under Pennsylvania v. Finley, 
    481 U.S. 551
     (1987). In the
    motion, counsel recited the procedural history of
    Woods’ case and stated
    Woods has shown no objective factor why he could not
    have raised these claims in his original post-conviction
    petition, and therefore he may not seek relief in a
    successive petition.
    With the exception of Finley, the motion did not cite
    any federal law. Woods then filed two objections
    restating the bases for the claims in his third petition;
    however, he did not address the procedural bar of waiver
    that his counsel had cited. But he did note, without any-
    thing more, that the failure to entertain his petition would
    result in a miscarriage of justice. The appellate court
    granted the motion to withdraw and affirmed the trial
    court’s dismissal of the petition. In their respective
    orders, neither the trial court nor the appellate court
    cited or discussed federal law. And for the fourth time,
    the Illinois Supreme Court denied Woods’ petition for
    leave to appeal.
    Woods then filed a petition for a writ of habeas corpus
    under 
    28 U.S.C. § 2254
     in the United States District Court
    for the Northern District of Illinois. In his petition, he
    raised seventeen claims. The district court found that
    Woods had procedurally defaulted all but one of those
    6                                                No. 08-1234
    claims and that he could not escape the procedural bar
    under any of the applicable exceptions. Concerning the
    merits of his preserved claim of ineffective assistance of
    counsel for failing to call Harold Woods to testify, the
    district court found that in denying that claim the
    Illinois Appellate Court did not unreasonably apply
    Strickland’s standard for ineffective assistance of counsel
    and denied Woods’ petition.
    Woods then moved for a certificate of appealability,
    which the district court denied. This court, however,
    granted him one on the following issues: whether
    Woods’ trial counsel was ineffective for failing to chal-
    lenge Kenya Wilson’s ability to view the crime; whether
    Woods’ appellate counsel was ineffective for raising only
    a forfeited issue; and whether Woods’ trial counsel was
    ineffective for failing to identify and call alibi wit-
    nesses. This appeal followed.
    II.
    A.
    The first two claims Woods raises on appeal are that his
    appellate counsel was ineffective for raising only a for-
    feited issue and that his trial counsel was ineffective for
    failing to challenge Kenya Wilson’s ability to view the
    crime. The district court found that both claims were
    procedurally defaulted and we review that determination
    de novo. Smith v. Gaetz, 
    565 F.3d 346
    , 352 (7th Cir. 2009).
    Before seeking habeas relief, a petitioner must fairly
    present his federal claims at each level of the state’s courts
    No. 08-1234                                               7
    for their review. 
    28 U.S.C. § 2254
    (b)(1)(A); Baldwin v.
    Reese, 
    541 U.S. 27
    , 32 (2004). The natural corollary of this
    requirement is that when a petitioner has exhausted his
    state court remedies and failed to properly assert his
    federal claims at each level of review those claims are
    procedurally defaulted. Lewis v. Sterns, 
    390 F.3d 1019
    ,
    1026 (7th Cir. 2004). And when a state court resolves a
    federal claim by resting its decision on a state law
    ground independent of the federal question and ade-
    quate to support the judgment, we will not review the
    question of federal law. Coleman v. Thompson, 
    501 U.S. 722
    ,
    729 (2001). Any such ruling on the federal claims would
    be advisory, given the fact that on remand the state
    court would still deny petitioner relief on the independent
    and adequate state law ground. 
    Id. at 729
     (“Because
    this Court has no power to review a state law determina-
    tion that is sufficient to support the judgment, resolution
    of any independent federal ground for the decision could
    not affect the judgment and would therefore be advi-
    sory.”).
    Thus, when a state refuses to adjudicate a petitioner’s
    federal claims because they were not raised in accord
    with the state’s procedural rules, that will normally
    qualify as an independent and adequate state ground
    for denying federal review. Cone v. Bell, 556 U.S. ___, 
    129 S. Ct. 1769
    , 1780 (2009). “A finding of waiver by the state
    postconviction court is enough to establish an adequate
    and independent state ground.” Sturgeon v. Chandler, 
    552 F.3d 604
    , 611 (7th Cir. 2009). Such claims are commonly
    referred to as being procedurally defaulted. E.g., Johnson
    v. Loftus, 
    518 F.3d 453
    , 455 (7th Cir. 2008). And when a
    8                                               No. 08-1234
    claim is procedurally defaulted, that bars our review of
    the claim, unless the petitioner can demonstrate both
    cause for and prejudice from the default or that a miscar-
    riage of justice will occur if we do not consider his
    claims. Anderson v. Benik, 
    471 F.3d 811
    , 815 (7th Cir. 2006).
    In this case, Woods raised his claims that trial counsel
    was ineffective for failing to challenge Kenya Wilson’s
    ability to view the crime and that appellate counsel was
    ineffective for raising only a forfeited issue for the first
    time in his third post-conviction petition. Nonetheless,
    he argues that these claims are not procedurally
    defaulted because the appellate court denied his federal
    claims on their merits. In the alternative, Woods argues
    that he can escape that procedural bar because it would
    result in a fundamental miscarriage of justice, namely,
    “in a conviction of one who is actually innocent.” Gonzales
    v. Mize, 
    565 F.3d 373
    , 381 (7th Cir. 2009) (parenthesis
    omitted). Woods does not argue “cause” and “prejudice”
    to escape the procedural bar. See Schlup v. Delo, 
    513 U.S. 298
    , 314-15 (1995) (discussing the difference between
    “cause and prejudice” and “miscarriage of justice”).
    Woods argues that the Illinois Appellate Court decided
    the merits of his federal claims when it summarily
    affirmed the trial court’s denial of his third petition for
    post-conviction relief. In support, Woods relies on our
    holding in Wilkinson v. Cowan, 
    231 F.3d 347
     (2000), and
    language we used in Lewis v. Sternes, 
    390 F.3d 1019
    , 1030
    No. 08-1234                                                   9
    (7th Cir. 2004), summarizing our holding in Wilkinson.1
    Both cases addressed the dismissal of post-conviction
    petitions, when the appellate court granted an attorney’s
    Finley motion to withdraw. Woods reads them as
    standing for the broad proposition that when post-convic-
    tion appellate counsel files a Finley motion and in
    response the appellate court both grants the attorney’s
    motion to withdraw and summarily affirms the dismissal
    of the petitioner’s post-conviction petition, the court has
    rendered a merits judgment on each of the claims
    asserted in that petition. But a careful examination of
    those cases shows that our holding in Wilkinson was not
    as broad as Woods would read it.
    In Wilkinson we addressed a much different situation
    than we have here. There, the petitioner had presented
    his federal claims in his original post-conviction petition
    to the trial court, and they were summarily dismissed.
    Wilkinson, 
    231 F.3d at 349
    . He appealed, and his ap-
    pointed appellate counsel moved “to withdraw without
    1
    The language from Lewis that Woods relies upon appears
    when we summarized the holding in Wilkinson and stated:
    In Wilkinson v. Cowan, 
    231 F.3d 347
    , 352 (7th Cir. 2000), we
    held that when the Illinois Appellate Court, in response to
    a Finley motion, had not only granted an attorney’s motion
    to withdraw but also summarily affirmed the dismissal of
    the petitioner’s post-conviction petition, the court had
    rendered a merits judgment as to each of the claims
    asserted in that petition.
    Lewis, 
    390 F.3d at 1030
    .
    10                                              No. 08-1234
    briefing the merits of any of the issues raised in the case.”
    Id. at 350. Petitioner did not file an objection, and the
    appellate court granted the motion to withdraw and
    summarily affirmed the trial court’s denial of the petition.
    In response to the habeas petition, the state argued that
    his claims were defaulted because he did not again
    present his claims in a pro se memorandum responding
    to the motion to withdraw or by filing his own brief
    addressing the issues he sought to appeal. Id. We
    rejected the state’s position. Id. at 351-52 (“We simply
    reject the State’s contention that Wilkinson can be
    charged with a procedural default under these circum-
    stances.”). Based on the circumstances of that case, we
    held that the appellate court had been presented with the
    petitioner’s claims and had addressed them on their
    merits. Id. at 352; see also id. at 350 (“In view of the par-
    ticular way in which the Illinois appellate court disposed
    of Wilkinson’s post-conviction appeal, however, we
    do not believe that he procedurally defaulted the inef-
    fectiveness claim.”).
    In Lewis we rejected a petitioner’s claim that he had
    fairly presented the appellate court with two ineffective
    assistance of counsel claims that first appeared in his
    objection to his attorney’s motion to withdraw. Lewis,
    
    390 F.3d at 1031
     (“[W]e reject the notion that a petitioner
    fairly presents his federal claim to the state courts when
    he raises that claim for the first time in an appellate
    brief after his lawyer has filed a motion to withdraw
    under Finley.”). We refused to read our holding in
    Wilkinson broadly and limited it to the precise factual
    No. 08-1234                                               11
    and procedural posture of that case. 
    Id. at 1031
     (“Lewis
    construes our holding in Wilkinson far too broadly.”).
    We stated:
    At most, Wilkinson stands for the proposition that
    when a state appellate court elects to summarily affirm
    the judgment below without having invited the appel-
    lant to identify the issues he wishes to pursue on appeal,
    we will construe the affirmance to have reached the
    merits of each issue that the petitioner properly
    raised in the court below.
    
    Id. at 1031
     (emphasis added).
    Simply put, the holding in Wilkinson cannot be divorced
    from its unique facts. And it certainly did not create a
    categorical rule that a decision is merits-based whenever
    an appellate court grants a Finley motion and summarily
    affirms the trial court’s denial of a post-conviction peti-
    tion. Such a blanket holding would, in fact, impermissibly
    restrain how state appellate courts may dispose of cases
    and motions to withdraw: “We have no power to tell state
    courts how they must write their opinions.” Coleman, 501
    U.S. at 739. And to prescribe such a categorical rule in
    these instances would rob the state courts of their auton-
    omy. Id. (“[W]e will not impose on state courts the respon-
    sibility for using particular language in every case.”);
    accord id. (“A broad presumption would also put too
    great a burden on the state courts.”). Therefore, we reject
    Woods’ argument that our cases stand for the proposi-
    tion that any time the appellate court grants an attorney’s
    motion to withdraw and summarily affirms the denial of
    12                                                  No. 08-1234
    his post-conviction petition it is a decision on the merits
    of his federal claims.2
    In cases such as this one, where on the face of the
    order it is unclear on what basis the state court disposed
    of a claim, we must make a determination on the
    record that the state court was presented with. Id. Specifi-
    cally, we look to the nature of the disposition and the
    surrounding circumstances to determine whether the
    state court relied on an independent and adequate
    state law ground in disposing of the claim, or whether
    “the state court decision fairly appears to rest on
    federal grounds or is interwoven with federal law.” Willis
    v. Aiken, 
    8 F.3d 556
    , 561 (7th Cir. 1993). Here, our review
    of the record includes the motion to withdraw filed by
    Woods’ appointed counsel during the appeal of his third
    post-conviction petition. Williams v. Washington, 
    59 F.3d 673
    , 678 n.3 (7th Cir. 1995) (looking to state court briefs
    to determine the basis of the appellate court’s holding).
    2
    Beyond the fact that a categorical rule in such cases is imper-
    missible, the circumstances in Wilkinson are distinguishable
    from what we have here. In Wilkinson, the petitioner only
    filed one post-conviction petition, there were no prior orders
    disposing of his claims on clear procedural grounds, and he
    did not object to his attorney’s motion to withdraw. Wilkinson,
    
    231 F.3d at 349
    . Here, the appellate court was disposing of
    Woods’ third petition for post-conviction relief, Woods’ previ-
    ous petition was dismissed as procedurally barred, and he
    filed two objections to the motion to withdraw restating
    his claims.
    No. 08-1234                                             13
    The orders denying Woods’ third post-conviction
    petition are unclear. There are two trial court orders
    disposing of Woods’ petition. One is a one-page
    transcript that briefly addresses the fact that most of
    Woods’ claims criticize trial tactics and should have
    been raised earlier; it also notes that Woods’ allegations
    are unsupported by anything more than his blanket
    bites of disapproval. The other is a mere minute order.
    Neither states a basis for the holding or provides any
    reasoning; they simply conclude that the petition is
    dismissed as frivolous and without merit. The appellate
    court’s order offers little more: it briefly recounts the
    procedural history of Woods’ case and states that the
    motion to withdraw is granted and the trial court is
    affirmed. These orders do not give us much to go on.
    But read in conjunction with all of the surrounding cir-
    cumstances of Woods’ claims, they indicate that the
    resolution of Woods’ third post-conviction petition
    neither rested primarily on federal law nor was it inter-
    woven with federal law. Coleman, 501 U.S. at 735; Harris
    v. Reed, 
    489 U.S. 255
    , 261 (1989). Rather, the appellate
    court summarily applied the state-law doctrine of
    waiver to dispose of Woods’ claims.
    Under Illinois law, “[a]ny claim of substantial denial of
    constitutional rights not raised in the original or an
    amended petition is waived.” 725 ILCS 5/122-3 (2008); see
    also People v. Anderson, 
    874 N.E.2d 277
    , 288 (Ill. App. Ct.
    2007) (“[I]n the context of a successive postconviction
    petition, the rule of waiver is not merely a principle of
    judicial administration, but, rather, an express require-
    14                                               No. 08-1234
    ment of the statute.”). Here, the appellate court dismissed
    Woods’ second post-conviction petition on waiver grounds
    and noted that he could not escape the procedural bar
    by establishing cause or prejudice. Similarly, under
    Illinois law, all of the claims in Woods’ third post-convic-
    tion petition would have been deemed waived: they all
    concerned matters he would have been aware of on
    direct appeal (the failure to challenge the eyewitness
    testimony of Kenya Wilson) or in his first post-conviction
    petition (the fact that appellate counsel only raised a
    forfeited issue). People v. Piper, 
    651 N.E. 2d 739
    , 741 (Ill.
    App. Ct. 1995).
    While the orders disposing of Woods’ third post-con-
    viction petition do not explicitly invoke waiver or
    federal law as a basis for denial, the sole ground cited
    by his appellate counsel in the motion to withdraw was
    that she “could not argue why petitioner should be al-
    lowed to present these claims, when they should have
    been raised in his original post-conviction petition, and
    therefore he may not seek relief in a successive peti-
    tion.” Nothing in the appellate court’s order discusses
    how Woods could escape the procedural bar for it to
    reach the merits and deny his newly presented but previ-
    ously available claims. People v. Pitsonbarger, 
    793 N.E.2d 609
    , 621-23 (Ill. 2002); see also Anderson, 
    874 N.E.2d at 289
    .
    To the contrary, those orders say nothing more than that
    the petition is denied. Ylst v. Nunnemaker, 
    501 U.S. 797
    , 804
    (1991) (“The essence of unexplained orders is that they
    say nothing.”). And nothing plus Woods’ speculation
    of the orders’ import does not mean that the disposition
    No. 08-1234                                             15
    fairly appears to rest on or to be interwoven with
    federal law.
    On this record, there is no “good reason to question
    whether there is an independent and adequate state
    ground for the [appellate court’s] decision.” Coleman, 
    501 U.S. at 739
    . Rather, the underlying Finley motion and the
    history of this case, including the fact that Woods’ second
    petition was denied on waiver grounds, and the circum-
    stances surrounding the denial of Woods’ third post-
    conviction petition convinces us that the state courts did
    not address and reject the merits of Woods’ federal claims
    in his third post-conviction petition. Therefore, we find
    that Wood’s claims of ineffective assistance of appellate
    counsel and ineffective assistance of trial counsel for
    failing to challenge Kenya’s testimony were not denied
    on their merits but were rejected on the independent
    and adequate state law ground of waiver.
    The state court’s reliance on an independent and ade-
    quate state law ground in denying a claim bars our
    review. Smith, 
    565 F.3d at 351
    ; Sturgeon, 
    552 F.3d at 611
    (noting waiver constitutes an adequate and independent
    state ground). To escape this procedural bar, Woods
    argues that our failure to entertain the merits of his
    claims will result in a miscarriage of justice, namely the
    conviction of an innocent man: Woods claims that he is
    actually innocent of killing Omar Wilson. But a defendant
    who asserts actual innocence as a reason to excuse a
    procedural default must do more than invoke those
    words, he “must demonstrate [his] innocence.” Buie v.
    McAdory, 
    341 F.3d 623
    , 626-27 (7th Cir. 2003). Indeed,
    16                                              No. 08-1234
    he “comes before the habeas court with a strong—and
    in the vast majority of the cases conclusive—presumption
    of guilt.” Schlup v. Delo, 
    513 U.S. 298
    , 326, n.42 (1995). To
    rebut this presumption, Woods must make a credible
    claim, supported by new, reliable evidence of his inno-
    cence. 
    Id. at 324
    . He must establish that “in light of the
    new evidence, no juror, acting reasonably, would have
    voted to find him guilty beyond a reasonable doubt.” 
    Id. at 329
    .
    This is not such a case. Woods’ “new” evidence is the
    affidavits of his family members. All of the affidavits
    were prepared years after the murder; Woods’ mother
    and brother-in-law’s were, in fact, prepared seven
    years after the murder. And they all note with incredible
    particularity the most pedestrian details of that night:
    the fact that they watched Martin, ate White Castle, and
    Woods was told to go to bed at a certain time and the
    time he finally complied. Such recall would be under-
    standable if the night stood out as being particularly
    remarkable and traumatic. But here, for the Woods
    family at least, the night was like any other: it was not
    until ten days later that Woods was arrested for the
    murder.
    Weighed against the eyewitness testimony of Kenya
    Wilson, these affidavits do not establish that no “reason-
    able factfinder would have found the applicant guilty of
    the underlying offense; it is black letter law that testimony
    of a single eyewitness suffices for conviction even if
    20 bishops testify that the eyewitness is a liar.” Hayes v.
    Battaglia, 
    403 F.3d 935
    , 938 (7th Cir. 2005) (internal quota-
    No. 08-1234                                                17
    tion marks omitted). Therefore, we find that Woods cannot
    escape the procedural default of his first two claims.
    B.
    Woods has preserved one claim for review: whether
    his trial counsel was constitutionally ineffective for
    failing to call his brother Harold Woods as an alibi wit-
    ness. This claim was presented in his first post-conviction
    petition to the Illinois Appellate Court, which rejected the
    claim. Our review is limited to whether that court’s denial
    of his claim was an unreasonable application of clearly
    established federal law. 
    28 U.S.C. § 2254
    (d). This claim is a
    mixed question of law and fact, and we review the district
    court’s denial de novo. Allen v. Chandler, 
    555 F.3d 596
    , 600
    (7th Cir. 2009).
    A state court’s decision is “contrary to” clearly estab-
    lished federal law “if the state court applies a rule
    different from the governing law set forth in [Supreme
    Court] cases, or if it decides a case differently than [the
    Supreme Court has] done on a set of materially indistin-
    guishable facts.” Bell v. Cone, 
    535 U.S. 685
    , 694 (2002). And
    a state court’s decision is an “unreasonable application” of
    clearly established federal law if it correctly identifies the
    governing legal principle “but unreasonably applies it to
    the facts of the particular case.” 
    Id.
     In other words, Woods
    must show that the appellate court’s decision was “so
    erroneous as to be objectively unreasonable.” Badelle v.
    Correll, 
    452 F.3d 648
    , 654 (7th Cir. 2006); Raygoza v. Hulick,
    
    474 F.3d 958
    , 963 (7th Cir. 2007) (noting the decision
    18                                                  No. 08-1234
    must fall “well outside the boundaries of permissible
    differences of opinion.” (quotation omitted)).
    Here, the appellate court correctly articulated the
    Strickland standard: Woods must demonstrate (1) his
    counsel’s performance fell below an objective standard
    of reasonableness and (2) there is a reasonable proba-
    bility that but for his counsel’s unprofessional errors, the
    result of the proceeding would have been different. In
    addressing whether Woods’ claim could meet Strickland’s
    prejudice prong, the court determined that Harold
    Woods’ affidavit only established that he did not recall
    Woods leaving the house after 9:15 the night of the
    murder. The court held that this statement was incon-
    clusive and weighed very little against the eyewitnesses
    testimony and identifications by Kenya and Terrell. In
    affirming the trial court’s denial of Woods’ petition, the
    appellate court ultimately held that Harold’s testimony
    “would not likely have changed the outcome of [the]
    trial.” 3
    3
    While that is not the Strickland standard, the appellate court’s
    reference to it in the conclusion was made after it had weighed
    Harold’s affidavit against the eyewitness identifications of
    Kenya and Terrell at trial. The proper statement of Strickland’s
    prejudice test appeared in the preceding paragraph. We have
    noted numerous times that there is no error when a court has
    correctly noted the Strickland standard and then used an
    incorrect shorthand version when stating its conclusion. E.g.,
    Stanley v. Bartley, 
    465 F.3d 810
    , 813 (7th Cir. 2006) (“Having
    expounded the well-known standard correctly on the
    (continued...)
    No. 08-1234                                                19
    Applying Strickland to the facts of the case, the appellate
    court’s holding on this matter lies well within the bound-
    aries of permissible differences of opinion. Johnson v.
    Hulett, 
    574 F.3d 428
    , 434 (7th Cir. 2009). As a general
    matter, alibi witnesses should be investigated and called,
    if available. Raygoza, 
    474 F.3d at 964
    ; Stanley, 465 F.3d at
    813-14. However, the appellate court did not act unrea-
    sonably in determining that Harold’s alibi testimony
    did not create a reasonable probability of a different
    outcome. At trial, the judge could have believed that
    Harold didn’t recall Woods leaving the night of the
    murder and still found that Woods committed the
    murder: Harold’s testimony would not have conclusively
    established that Woods was not at Omar’s Hazel Crest
    home that night, and at trial, two eyewitnesses is very
    strong evidence of guilt. Therefore, the appellate court’s
    decision is a reasonable application of the Strickland
    standard to the facts of Woods’ case; accordingly, the
    district court properly denied Woods’ § 2254 petition.
    III.
    Based on our review of the facts and circumstances
    surrounding the denial of Woods’ third post-conviction
    petition, it is clear that the state court’s decision does not
    fairly appear to either rest on or to be interwoven with
    3
    (...continued)
    previous page of its opinion, it is more likely that the court
    stated its conclusion imprecisely than that it applied a dif-
    ferent standard.” (citation omitted)).
    20                                              No. 08-1234
    federal law. Thus, Woods’ claims that his appellate
    counsel was ineffective for raising only a forfeited issue
    and that his trial counsel was ineffective for failing to
    challenge Kenya Wilson’s ability to view the crime are
    procedurally defaulted. Additionally, Woods has not
    shown that failure to consider these claims will result in a
    miscarriage of justice; therefore, we are precluded from
    considering the merits of his claims. Furthermore, the
    Illinois Appellate Court’s rejection of Woods’ preserved
    ineffective assistance of counsel claim related to his trial
    counsel’s failure to call Harold Woods as an alibi witness
    was not contrary to or an unreasonable application of
    clearly established federal law. Accordingly, the district
    court properly denied Woods habeas relief. We A FFIRM .
    12-9-09