Michael Meyers v. David Gomez ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2786
MICHAEL MEYERS,
Petitioner-Appellant,
v.
DAVID GOMEZ,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cv-05687 — Charles P. Kocoras, Judge.
____________________
ARGUED FEBRUARY 17, 2022 — DECIDED OCTOBER 6, 2022
____________________
Before ROVNER, HAMILTON, and ST. EVE, Circuit Judges.
ROVNER, Circuit Judge. Michael Meyers was one of seven
men charged and convicted with the 1989 murders of Dan
Williams and Thomas Kaufman in Chicago. He appeals the
district court’s denial of his habeas corpus petition. He pre-
sents two claims: (1) that the Illinois Appellate Court unrea-
sonably applied Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052 (1984), in rejecting his claim that his trial counsel
was ineffective for failing to interview and present the
2 No. 20-2786
testimony of an alibi witness; and (2) that his conviction was
based on the State’s knowing use of perjured testimony in vi-
olation of Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173 (1959), a
claim he contends he fairly presented to the state courts but
that those courts wrongfully rejected as a factual matter based
on a credibility determination he says makes no sense. We af-
firm.
I.
In November 1989, Jerry Williams and other members of
Chicago’s Del-Vikings gang accosted a woman named A.W.,
struck her in the head with a pistol and beat her, interrogated
her about the location of rival Gangster Disciples gang mem-
ber Kevin Young (with whom A.W. had a relationship), and
then raped her.
Two days later, at approximately 10 p.m. on November 9,
1989, a group of seven masked men at the (since demolished)
Stateway Gardens public housing complex shot and killed
Dan Williams in the apparent and mistaken belief that he was
Jerry Williams. Their bullets also struck and killed Thomas
Kaufman, a security guard in a nearby building on the Illinois
Institute of Technology (“IIT”) campus. The seven men
charged with the murders—Kevin Young, Meyers, Thomas
Carter, James Young, Michael Johnson, Eric Smith, and James
Bannister—were all members of the Gangster Disciples gang.
Meyers and five of his co-defendants were tried jointly 17
months after the shooting, in March-April 1991. 1
A.W. testified at the trial that she met with Kevin Young
and Carter in an apartment at 3547 South Federal in Stateway
1 The case against defendant Michael Johnson was severed for trial.
No. 20-2786 3
Gardens five hours before the shooting and identified to them
the men who had assaulted her. Kevin Young and Carter then
left the apartment and later returned with three other men:
Meyers, James Young, and Johnson. The five men left the
apartment around 10 p.m. dressed in black and carrying guns;
A.W. stayed behind. The five men returned to the apartment
about 20 minutes later, wearing ski masks (in one case, a
stocking cap) over their faces. At that time, Kevin Young took
all but one of the guns and placed them in a radiator. (James
Young took the remaining gun with him.) In her testimony,
A.W. admitted that she had lied to the police after the shoot-
ing when she told them that she was spending time with a
cousin on the night of the shooting and had not seen Kevin
Young or any of the other defendants at that time.
The state’s key witness at the trial was Deanda Wilson,
who was 12 years old at the time of the shooting and 14 by the
time of the trial. Wilson socialized with members of the Del-
Vikings gang. Wilson said that on the night of the shooting,
he and a friend were standing in a hallway on the first floor
of the Stateway Gardens building located at 3517-19 South
Federal Street, one story above ground level. (His grand-
mother lived in that building.) Wilson and his friend were on
the 3519 side of the building. He heard people yelling “here
come Ace Dog,” the street name for Kevin Young. A861. 2 He
went outside to the first-floor landing or balcony—or
“porch,” as the witnesses referred to it—overlooking a playlot
and saw a group of seven men dressed in black approaching
2 Citations to “A—” are to the two-volume appendix filed by Meyers,
and citations to “SA—” are to the supplemental appendix attached to
Meyers’ main brief. Citations to “7th Cir. R.—” are to documents found
on this court’s docket.
4 No. 20-2786
from the 3547 South Federal building, where Wilson lived
with his mother and brother. Kevin Young was wearing a
baseball cap and the other six were wearing knitted or skull
caps with their faces exposed. Wilson knew all seven men and
recognized them; all were members of the Gangster Disciples.
He ran up to the second-floor porch of the building and from
there saw that Meyers (whom he knew by the street name “Ice
Mike”), Kevin Young, and Carter were now standing at the
front of the ground-floor breezeway of the 3517-19 building
that separated the two sides of the building. Smith and Ban-
nister were standing directly below Wilson in front of a jani-
tor’s closet. James Young and Johnson were standing on a
first-floor porch on the 3517 side of the building. Wilson no-
ticed Dan Williams standing to the side of the playlot in front
of the building, and he heard someone yell, apparently to Wil-
liams, “Come here, motherfucker.” A872. Williams re-
sponded, “I ain’t have nothing to do with it.” A872. Someone
else yelled, “Didn’t I tell your mother fucking ass to come
here[?]” A873. Then, according to Wilson, Meyers, Kevin
Young, and Carter stepped out of the breezeway, took guns
from their coats, and aimed them at Williams; simultane-
ously, Smith and Bannister stepped forward from the janitor’s
closet with guns in their hands, also aimed at Williams. John-
son and James Young, who were standing on the first-floor
porch, likewise aimed firearms at Williams. All seven men be-
gan firing at Williams. Williams ran toward the IIT building
across the street and collapsed in between the revolving doors
of that building. Kaufman, a guard on duty inside of the IIT
building, was also struck and killed by the gunfire. The shoot-
ing lasted, by Wilson’s estimate, for about 15 seconds. After
the gunfire stopped, Wilson saw the defendants jog over to
the 3547 building with their guns still in their hands.
No. 20-2786 5
On cross-examination, Wilson admitted having told the
police that the gunmen, with the exception of Kevin Young,
had their caps pulled down over their faces when he saw
them. He also admitted telling the grand jury that when he
ran up to the second-floor porch, he was unable to see the two
men standing on the first-floor porch of the 3517 side of the
building.
Denise Brady testified that around 10 p.m. on the night of
the shooting, she noticed two men in dark clothing and ski
masks standing near an elevator on the first floor of the build-
ing at 3517-19 South Federal. She descended to the ground
floor, where she heard someone say, “Come here.” A502. She
turned toward the voice and saw Kevin Young dressed in
dark clothing and a baseball cap, but no mask. She also ob-
served Dan Williams, whom she knew, walking by the 3517-
19 building. She exchanged greetings with Williams. Then she
heard someone say, “Come here, come here, motherfucker.”
A504. When she turned toward that voice, she again saw
Kevin Young, who “came up out of his coat” and began shoot-
ing a gun at Williams. A505. She urged Williams to “[r]un.”
A506. She went on to describe the shooting in terms roughly
akin to Wilson’s. She saw four other shooters but she could
not identify them, in part because some of them had their
faces masked.
Wilson’s mother Ruth testified that she heard the shooting
from the bedroom of her apartment at 3547 South Federal and
when she looked out her window, which faced the 3517-19
building, she saw at least five men in dark clothing and hats
or hoods walking toward her building. Although she could
not see any of their faces, she nonetheless recognized Kevin
6 No. 20-2786
Young and Carter as two of the men, and she saw Young put
a gun under his coat.
Finally, Detective Edward Winstead testified that he had
inspected the second-floor porch from which Wilson testified
that he had witnessed the shooting. Winstead said that from
that vantage point, one could not see the first-floor porch on
the 3519 side nor into the ground-floor breezeway where Wil-
son had testified that Meyers, Kevin Young, and Carter were
standing. Similarly, the janitor’s closet directly below the
porch was not visible, although according to Winstead, if the
doors to the closet were open, they were visible. Finally, one
could see a limited part of the first-floor porch on the 3517
side of the building. 3 This testimony, as counsel for the de-
fendants were at pains to emphasize, cast doubt on Wilson’s
testimony that he could see where each of the defendants was
standing immediately prior to the shooting. But of course,
Wilson had also testified that he saw the defendants as they
approached the 3517-19 building and again (as to those de-
fendants who then took up stations at ground level) when
they stepped forward away from the building and opened fire
on Williams.
Sherri Parker, a neighbor and longtime acquaintance of
Meyers, was subpoenaed by Meyers’ trial counsel, George
Nichols, to appear at the trial but ultimately was not called to
the witness stand. Meyers had given Parker’s name to Nich-
ols. At the time of the shooting, Parker lived in the Stateway
Gardens complex at 3549 South Federal, about 300 feet away
3 The porches had chain-link fencing in front of them,
such that some-
one standing on a porch could not lean outward from the landing in order
to get a better look at what was below or beside him.
No. 20-2786 7
from the scene of the murders. She would later submit an af-
fidavit in support of Meyers’ post-conviction petition alleging
that on the night of the shooting, Meyers came to her apart-
ment at about 9:30 p.m. and left around 10 p.m. Almost im-
mediately after he left her apartment, she heard gunshots. She
said that in the short time following his departure, Meyers
would not have been able to make it outside of her building
and over to the 3517-19 building by the time the shots rang
out. According to Parker, neither Nichols nor anyone else
from the Public Defender’s office had ever interviewed her
prior to trial. She responded to the subpoena and showed up
at the courthouse, but she was not asked to testify.
All seven defendants, including Meyers, were convicted
on two counts of first-degree murder, for both Williams and
Kaufman. They were all sentenced to terms of natural life in
prison.
Wilson subsequently recanted portions of his trial testi-
mony. He gave a transcribed statement to defendant Eric
Smith’s counsel in June 1992 in which he averred that he could
only positively identify four of the shooters and that he could
not be certain about the remaining three, including Meyers,
because their caps had partially obscured their faces. Instead,
he claimed that the police had shown him photos of each de-
fendant, and because he otherwise knew who they were, he
identified them each by name. But he averred that he told the
police that he could not identify all seven of the shooters.
In April 1998, Wilson signed an affidavit in defendant
James Young’s post-conviction proceeding in which he re-
peated his recantation but now asserted that he could not
identify any of the shooters other than Kevin Young. Wilson
8 No. 20-2786
stated that he “lied at trial because the cops and state’s attor-
neys told me to.” A2031.
In April 1995, after Meyers’ conviction was affirmed on di-
rect appeal, he filed a pro se petition for post-conviction relief.
Among other claims in that petition, Meyers argued that his
trial counsel, Nichols, was ineffective for failing to investigate
the scene of the shooting and to establish that Wilson would
not have been able to see the shooters from his second-floor
vantage point. 4 Pointing to Wilson’s recantation, Meyers
added that he was wrongfully convicted based on Wilson’s
perjured trial testimony and the prosecution’s subornation to
commit perjury. Meyers argued:
The June 10, 1992 Statement is further evidence
that makes it clear, that this Petitioner-Defend-
ant was wrongly convicted based upon perjury,
[s]ubornation to commit perjury by the State’s
Attorney, and failure of the trial counsel to pre-
sent the expert witnesses necessary to demon-
strate the impossibility of Deanda [Wilson] to
see the things he claimed he saw. If these things
had not happened it would have made a sub-
stantial difference in the outcome of this De-
fendant’s trial in a favorable way to the Defend-
ant.
A1974. That petition was later supplemented in June 2002
with the aid of counsel. There Meyers argued that he was en-
titled to a new trial under People v. Burrows, 665 N.E.2d 1319,
4 Of course, Detective Winstead’s testimony itself established the lim-
its of what Wilson would have been able to see from the second-floor
porch.
No. 20-2786 9
1328 (Ill. 1996), based on Wilson’s post-trial recantation,
which he argued was sufficiently reliable to suggest that Wil-
son’s trial testimony was a complete fabrication and that he
might be actually innocent of the murders. In that context,
Meyers pointed to Wilson’s 1992 transcribed statement and
his 1998 affidavit acknowledging that he (Wilson) could not
positively identify Meyers as one of the shooters. Finally, as
relevant here, Meyers also argued that his trial counsel, Nich-
ols, was ineffective in failing to interview and present the alibi
testimony of Sherri Parker.
The post-conviction judge (who was also the trial judge)
subsequently held an evidentiary hearing in September 2002
for four defendants (Meyers, Bannister, Smith, and James
Young) on the matter of Wilson and his allegedly perjurious
trial testimony. 5 Wilson testified at that hearing that, contrary
to his trial testimony, he had not seen the shooting. He said
that he was in another building at Stateway Gardens, not the
3517-19 South Federal building, at the time. He did hear the
gunfire, and afterwards he walked over to the scene and
learned who had been shot. He later falsely identified the de-
fendants to the police as the shooters based on what he had
been told by Del-Viking gang members and neighbors. Wil-
son said that on his way to the grand jury proceeding, he told
Detective Winstead that his prior statements to the police
were false, but he said Winstead instructed him to tell the
5 The judge had initially rejected the reliability of Wilson’s recantation
out of hand and refused to hold a hearing on the matter, but in an un-
published order issued in November 1998, the Illinois Appellate Court re-
versed that ruling and remanded for an evidentiary hearing. See People v.
Bannister, 880 N.E.2d 607, 613 (Ill. App. Ct. 2007), aff’d, 923 N.E.2d 244, 246
(Ill. 2009) (recounting this procedural history).
10 No. 20-2786
grand jury what he had told the police. He also testified that
he did not want to testify at trial but based on his pre-trial
discussions with an Assistant State’s Attorney, he hoped that
a drug charge pending against him would go away in ex-
change for his cooperation. He added that on the day of his
trial testimony, the prosecutor told him he could get five years
in prison if he refused to testify. Finally, Wilson indicated that
he was not truthful in his 1992 transcribed statement when he
represented that he could positively identify four of the shoot-
ers, and that he was likewise untruthful in his 1998 affidavit,
when he said that he could identify Kevin Young as one of the
shooters.
Assistant State’s Attorney James McKay, the lead prosecu-
tor at trial, also testified at the hearing. He recalled speaking
with Wilson on two occasions prior to trial, and on neither
occasion had Wilson indicated he was reluctant to testify
against the defendants. McKay denied making any promises
to Wilson regarding his drug charge or threatening him with
prison if he did not testify.
Detective Winstead, who had accompanied Wilson to the
grand jury, testified that Wilson never said that his prior state-
ments to the police were lies.
Ruth Wilson testified that on the night of the murders, her
son told her that he witnessed the shooting and named six or
seven of the shooters. She confirmed Winstead’s testimony
that when Wilson was en route to testify before the grand
jury, he did not say that he was unable to identify the shooters
or that his prior statements to the police were false. Nor had
Winstead threatened her son with incarceration if he did not
cooperate. Her son had told her that he wanted to testify at
trial for the victim (presumably Williams).
No. 20-2786 11
Finally, among other witnesses at the postconviction hear-
ing, Denise Brady testified that she had not spoken with Wil-
son on the night of the shooting nor had she given him infor-
mation regarding the shooters in order to create a story that
he could tell to the police.
In January 2004, having considered the evidence pre-
sented at the hearing, the judge granted relief as to Smith and
Bannister based on Wilson’s recantation but denied it as to
Meyers and James Young. The judge reasoned that Smith and
Bannister were not among the five armed defendants whom
A.W. had seen leaving the apartment just before the shooting
and returning 20 minutes later. To that extent, A.W. had not
corroborated Wilson’s trial testimony identifying Smith and
Bannister as being among the seven shooters. So as to those
two defendants, the judge found that Wilson’s trial testimony
“was not accurate and truthful and that the outcome of this
case as to Smith and Bannister would probably have been dif-
ferent if not for Wilson’s perjured testimony.” SA3. He there-
fore vacated their convictions. 6 But as to Meyers and James
6 Smith and Bannister were subsequently re-tried to the bench. Their
co-defendant, Michael Johnson, testified against them at that trial. Wilson
was called as a witness, but consistent with his testimony at the postcon-
viction hearing, he denied having seen the shooting. His testimony at the
original trial was introduced as a prior inconsistent statement. The judge
convicted both Smith and Bannister and they were again sentenced to life
terms in prison. See Bannister, supra n.5, 880 N.E.2d 614–16 (describing ev-
idence presented at second trial and outcome). Bannister argued on appeal
of his second conviction that the re-trial violated his double jeopardy
rights, but the Illinois Appellate Court rejected this argument. The court
reasoned in part that Bannister had forfeited the contention by affirma-
tively seeking a new trial during the post-conviction process. Id. at 617. In
the alternative, the court rejected the argument on its merits. Although
double jeopardy precludes a second or successive trial when the evidence
12 No. 20-2786
Young, the judge reached the opposite conclusion. “I believe
that so far as these two defendant petitioners are concerned,
Deanda Wilson was not lying, was telling the truth, and im-
portantly[,] most importantly[,] I find that the testimony of
A.W. provided substantial important confirmation corrobo-
rati[ng] …. Wilson’s testimony. … I believed A.W.’s testi-
mony, [and that] corroboration was most important in my
mind. …. [R]ecantations are … inherently unreliable.” SA11
(citations and internal quotation marks omitted). See also SA18
(Dec. 21, 2005) (reiterating this finding as to Meyers).
Although the judge thus resolved on the merits Meyers’
claim for relief based on Wilson’s recantation, he declined to
hold a hearing on Meyer’s ineffective assistance claim regard-
ing the alibi and dismissed that claim.
Wilson appealed the adverse rulings on his two claims
and in February 2008, the Illinois Appellate Court, in an un-
published order, sustained the denial of Meyers’ claim as to
Wilson’s recantation but reversed the dismissal of his ineffec-
tiveness claim. SA23.
As to the recantation, the court noted that recantations are
regarded as inherently unreliable and will not support a new
presented at the defendant’s first trial was legally insufficient to convict,
the court explained, it does not preclude a retrial when the defendant’s
conviction has been set aside because of an error in the proceedings cul-
minating in the defendant’s original conviction. Id. In this case, Bannister’s
conviction was vacated and he was granted a new trial in view of Wilson’s
subsequent recantation of his trial testimony, not because of any short-
coming in the State’s proof of Bannister’s guilt. Indeed, the court expressly
found that the evidence presented at the first trial was sufficient to support
Bannister’s conviction. “Accordingly, the defendant’s second prosecution
did not violate his right to be free from double jeopardy.” Id. at 618.
No. 20-2786 13
trial except in extraordinary circumstances. In this case, Wil-
son had given three different versions of his recantation, each
of which conflicted with the other, and had not explained the
inconsistencies. The postconviction judge had observed Wil-
son’s testimony at both the trial and the post-conviction hear-
ing and was aware of the trial testimony of the other wit-
nesses, including that of A.W., Ruth Wilson, and Denise
Brady, whose accounts were consistent with Wilson’s trial
testimony. The judge had specifically found Wilson’s trial tes-
timony implicating Meyers to be credible and his recantation
to be incredible. The judge had emphasized that Wilson’s trial
testimony as to Meyers was substantially corroborated by
A.W.’s testimony. “Based on our examination of the record,
we cannot say that the circuit court’s credibility determina-
tion and its rejection of Wilson’s recantation was manifestly
erroneous.” SA34.
As to the ineffectiveness claim, however, the appellate
court reasoned that Meyers was entitled to an evidentiary
hearing. Accepting as true the allegations of Meyers’ post-
conviction claim and Parker’s affidavit as to what she would
have testified, the court agreed that Parker would have sup-
ported the theory that Meyers was not present at the scene of
the shooting or the apartment where A.W. encountered five
of the shooters prior to and after the shooting. The court also
reasoned that trial counsel’s decision not to call Parker could
not be deemed a legitimate strategic decision because, again
accepting Parker’s affidavit as true, Nichols had never inter-
viewed her and did not know the substance of her potential
testimony. Furthermore, because Parker’s testimony would
have directly contradicted that of A.W., whose corroboration
of Wilson’s trial testimony the postconviction judge had
deemed so crucial, the court was not prepared to say as a
14 No. 20-2786
matter of law that the outcome of the trial likely would not
have been different had Parker testified. The court cautioned
that its decision was not to be interpreted as a comment on
Parker’s credibility as a witness, which was up to the circuit
court to assess. SA38–39.
In March of 2014, nearly 25 years after the murders, the
trial court finally held a hearing on the ineffectiveness claim. 7
A new judge conducted the hearing. By that time, Nichols,
Meyers’ trial counsel, had died.
Meyers testified that Parker was a family friend and that
he was at her apartment in the 3549 South Federal building
on the night of the shooting. He had left her apartment 10 to
15 seconds before the shooting and was still in the hallway
outside of her apartment when he heard the shots. He said he
gave Parker’s name and contact information to Nichols after
his arrest, along with the nature of the alibi, but Nichols told
him that he didn’t feel safe going to Stateway Gardens alone
to talk to Parker, and Meyers was unable to think of someone
who could accompany Nichols. On the day of trial, Nichols
advised Meyers that Parker was present at the courthouse but
that he didn’t plan to call her to the witness stand. He didn’t
tell Meyers why. On cross-examination, Meyers denied
7On remand, the circuit court had initially dismissed the ineffective-
ness claim for a second time after Meyers’ appointed counsel filed a mo-
tion to withdraw upon finding (as we discuss below) notes of a 1990 inter-
view with Parker among Nichols’ trial papers. In 2012, the Illinois Appel-
late Court initially sustained the dismissal and the lower court’s order al-
lowing Meyers’ appointed counsel to withdraw, but on rehearing changed
course, reversed both decisions, and remanded for an evidentiary hearing.
See People v. Meyers, 65 N.E.3d 961, 964 (Ill. App. Ct. 2016) (recounting this
history).
No. 20-2786 15
telling Detective Winstead, who interviewed him following
his arrest, anything other than that he knew nothing about the
shooting. Meyers also admitted that he did not tell Winstead
he was with Parker at the time.
Parker testified similarly to Meyers about the night of the
shooting, i.e., he was at her apartment and was in the process
of leaving when they heard the shots. She said she received a
subpoena to appear at trial but did not meet with Nichols
prior to trial and did not believe that anyone working with
Nichols had ever spoken to her in advance of the trial. When
an investigator spoke to her in 2009, she told the investigator
she thought she and Meyers heard the shots at about 3 p.m.
but that she could not recall the precise time of the shooting.
And when Meyers’ postconviction counsel, Timothy Leem-
ing, spoke to her in 2010, she repeated to him that she could
not recall the time of the shooting. Parker also acknowledged,
at first, that someone had come to her apartment and talked
to her prior to the trial, but she denied that it could have been
Nichols because “[i]t wasn’t a man in a suit.” A2173. Then
Parker retreated and said she did not recall whether anyone
had spoken to her in advance of the trial.
Detective Winstead, by then retired, testified that when he
interrogated Meyers after his arrest, Meyers told Winstead
that on the night of the shooting he had gone to the 3519 side
of the building at 3517-19 South Federal in order to purchase
marijuana from a man named Randy. Meyers said that he saw
Kevin Young, Carter, Bannister, Smith, and James Young
there, and he also saw Williams walking by. Meyers heard
both the verbal exchange between the shooters and Williams
and the gunfire that followed, but he denied any involvement
in the shooting. Winstead said he was later joined in the
16 No. 20-2786
interrogation by Assistant State’s Attorney Jerry Marconi, to
whom Meyers repeated this account. Meyers did not tell Mar-
coni that he was at Sherri Parker’s apartment at 3549 South
Federal. (The parties stipulated that Marconi would testify
consistently with Winstead’s account.)
Assistant Public Defender Leeming testified that he was
assigned to work on Meyer’s post-conviction proceeding in
2009. At that time, among some 20 pages of handwritten notes
in Nichols’ file, he discovered what looked like one or two
pages of notes from an interview of Parker in March 1990, one
year before the trial took place. Leeming had no idea who
took the notes. According to the Illinois Appellate Court,
those notes contained no reference to Parker having been with
Meyers at the time of the shooting. People v. Meyers, 65 N.E.3d
961, 965 (Ill. App. Ct. 2016). When Leeming and a law student
intern interviewed Nichols in 2010, Nichols remembered the
case only slightly, and he did not recall anything about Par-
ker.
Investigator Daniel Brannigan of the Cook County State’s
Attorney’s office testified that he interviewed Parker in 2009
and again in 2013. Both times Parker told him that she and
Meyers were at her apartment at the time of the shooting. In
2009, Parker said this was at about 3 p.m., but in 2013, she said
that it was around 7 p.m. and that she and Meyers were
“probably getting high together” in her apartment. A2241.
Parker had also volunteered in the second of these interviews
that she was a regular user of heroin and cocaine in 1989, the
year the shooting took place.
Following the hearing, the postconviction judge resolved
the merits of the ineffectiveness claim against Meyers. The
judge noted first that although Meyers denied telling anyone
No. 20-2786 17
that he was at the scene of the shooting, the record also re-
flected that he had sought to suppress his post-arrest state-
ments to that effect. 8 The judge went on to note that Parker
was present in court at trial and that Nichols told Meyers he
would not call her to the witness stand, from which the judge
inferred that Nichols “at least knew who Sherr[i] Parker was
… .” SA44. The record also reflected that Parker was disclosed
as a prospective witness and had been subpoenaed to appear
at the trial. Parker’s alibi testimony posed a problem for the
defense, however, in that it would have opened the door for
8 The record indicates that the trial court denied Meyers’ motions to
suppress his post-arrest statements as well as his motion in limine to spe-
cifically exclude his statement that he had gone to the 3517-19 building in
order to buy marijuana. The court was prepared to allow Detective Win-
stead to recount Meyers’ statements in redacted form (eliminating any ref-
erence to him seeing his co-defendants at the 3517-19 building), so as to
disclose Meyers’ acknowledgment that he was present at the scene of the
shooting, that he was there to purchase marijuana, that he saw Williams
walking by, that he saw Williams being shot at but did not himself shoot
at anyone, and that after the shooting, he walked over to 3549 South Fed-
eral. A1342. But counsel for Meyers’ co-defendants renewed their objec-
tions under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620 (1968), to
the admission of Meyers’ statements because, in their view, those state-
ments, even as redacted, necessarily inculpated his co-defendants, and yet
given that Meyers was being tried jointly with them, Meyers, unless he
elected to take the witness stand, could not be cross-examined on his state-
ments. A1331–41. At the same time, counsel for Meyers argued that if the
court was going to allow any portion of his client’s statements into evi-
dence, it should admit the entirety of those statements. A1333–35, 1342–
43. In view of the various objections, the State elected to unilaterally with-
draw its request to admit the statements and they were never introduced
at trial. A1345–46. Had Parker testified, however, the State presumably
would have elicited Meyers’ statements placing him at the scene of the
shooting given the court’s stated willingness to allow them into evidence
in redacted form.
18 No. 20-2786
the State to elicit testimony regarding Meyers’ contrary post-
arrest statements acknowledging that he was present at the
3517-19 building when the victims were shot. Admission of
those statements in turn would have bolstered the credibility
of the eyewitness testimony likewise placing Meyers at the
scene. The judge therefore found that “George Nichols was
aware of Sherr[i] Parker and as a matter of trial strategy de-
cided not to call her.” SA50. The judge did not make any find-
ing as to whether Parker was credible (although he did find
that Parker had been impeached in various respects) or
whether Nichols had ever interviewed her.
Meyers appealed for a final time, but the appellate court
affirmed the postconviction judge’s ruling. Meyers, 65 N.E.3d
961. The court sustained the post-conviction judge’s determi-
nation that Nichols’ decision not to call Parker as a witness
was a matter of trial strategy, finding that the evidence sup-
ported that determination even assuming, as Meyers con-
tended, that Nichols never interviewed her. The appellate
court reasoned: (1) there was no question that Nichols was
aware of Parker, in that Meyers had identified her to Nichols,
she was disclosed as a potential witness in discovery, and she
was subpoenaed to testify; (2) although Parker was present in
court, Nichols decided not to call her and told his client as
much, signaling that he made a strategic decision not to pre-
sent her testimony; (3) that decision was reasonable, given
that the State could have presented rebuttal testimony from
Detective Winstead and Assistant State’s Attorney Marconi
recounting Meyers’ post-arrest statements to them admitting
that he was at the scene of the shooting when the murders
took place, not at Parker’s apartment; (4) Nichols was obvi-
ously aware of those post-arrest statements, because he had
not only moved in advance of trial to suppress them, but had
No. 20-2786 19
also filed a motion in limine specifically seeking to bar the
State from eliciting the portion of those statements regarding
Meyers’ intent to buy marijuana. Id. at 967–68. For these rea-
sons, the appellate court concluded that Nichols did not de-
prive Meyers of the effective assistance of counsel. Id. at 968,
969. It did not reach the question of whether Meyers was prej-
udiced by his counsel’s failure to look into and present Par-
ker’s testimony.
Meyers then filed his habeas petition in federal court, but
Judge Kocoras denied the petition. Meyers v. Pfister, No. 17 C
5687, 2020 WL 4704764 (N.D. Ill. Aug. 13, 2020). First, as to the
claim of ineffectiveness, he held it was not unreasonable for
the state court to find that Nichols made a legitimate strategic
decision not to call Parker as an alibi witness, as this would
have opened the door to testimony regarding Meyers’ post-
arrest statements admitting that he was present at the scene
of the shooting. Judge Kocoras also held in the alternative that
Meyers had failed to establish that he was prejudiced by Nich-
ols’ decision not to call Parker. He did not think there was a
reasonable probability that Parker might have changed the
outcome of the trial, given A.W.’s testimony that Meyers was
among the five men she saw armed and dressed in dark cloth-
ing immediately before the shooting and Wilson’s testimony
identifying Meyers as one of the shooters. Id., at *5.
As for the claim regarding the knowing use of perjured
testimony at the trial, Judge Kocoras found that Meyers had
procedurally defaulted this claim. He agreed with the State
that Meyers had not presented such a claim to the state courts,
but instead had solely pursued a claim of actual innocence
based on Wilson’s recantation. Meyers had not shown cause
for this procedural default nor resulting prejudice. Nor could
20 No. 20-2786
he establish that it would be a fundamental miscarriage of jus-
tice not to reach the merits of the perjury claim. In the judge’s
view, any doubts raised by Wilson’s recantation were re-
solved by the fact that A.W. had identified Meyers as one of
the shooters and Meyers’ own co-defendant, Johnson, who
testified at Bannister’s re-trial, see n.6, supra, also implicated
Meyers in the shooting. Id., at *9.
II.
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) authorizes relief under 28 U.S.C. § 2254 only
when the state court’s decision on the merits of the peti-
tioner’s claim is “contrary to, or involved an unreasonable ap-
plication of, clearly established Federal law, as determined by
the Supreme Court of the United States.” § 2254(d)(1). A state
court decision is “contrary to” Supreme Court precedent if it
either did not apply the proper legal rule or if the decision did
apply the correct rule but reached the opposite result from the
Supreme Court on materially indistinguishable facts. E.g.,
Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013). A state
court decision amounts to an unreasonable application of Su-
preme Court precedent when it applies that precedent in a
manner that is “objectively unreasonable, not merely wrong.”
Woods v. Donald, 575 U.S. 312, 316, 135 S. Ct. 1372, 1376 (2015)
(per curiam) (quoting White v. Woodall, 572 U.S. 415, 419, 134
S. Ct. 1697, 1702 (2014)); Renico v. Lett, 559 U.S. 766, 773, 130 S.
Ct. 1855, 1862 (2010). By design, this is a difficult standard to
meet. Donald, 575 U.S. at 316, 135 S. Ct. at 1376. A state court’s
application of Supreme Court precedent is not objectively un-
reasonable simply because we might disagree with that appli-
cation, but rather only when no reasonable jurist could agree
with it. Davis v. Ayala, 576 U.S. 257, 269–70, 135 S. Ct. 2187,
No. 20-2786 21
2199 (2015); Donald, 575 U.S. at 316, 135 S. Ct. at 1376; Williams
v. Taylor, 529 U.S. 362, 409–11, 120 S. Ct. 1495, 1521–22 (2000).
To the extent that a petitioner challenges a factual finding
on which the state court’s adverse ruling rests, he must show
that the finding was unreasonable in light of the evidence pre-
sented in the state court proceeding. § 2254(d)(2). We presume
that the state court’s factual determinations were correct, and
the petitioner bears the burden of rebutting that presumption
with clear and convincing evidence. § 2254(e)(1); Shannon v.
Hepp, 27 F.4th 1258, 1268 (7th Cir. 2022), cert. denied, 2022 WL
4653051 (U.S. Oct. 3, 2022).
A. Ineffective assistance of counsel for failing to present
Parker’s alibi testimony
Strickland v. Washington, supra, 466 U.S. 668, 104 S. Ct. 2052,
is the governing precedent vis-à-vis Meyers’ attorney-ineffec-
tiveness claim. In order to prevail on that claim, Strickland re-
quires Meyers to show that his trial counsel’s performance
was deficient, i.e., that it fell below an objective standard of
reasonableness. Id. at 687–88, 104 S. Ct. at 2064. A wide range
of attorney performance will satisfy the Sixth Amendment’s
guarantee of effective representation, id. at 689, 104 S. Ct. at
2065, and our review begins with a “strong presumption” that
the work of petitioner’s counsel fell within that range, id., 104
S. Ct. at 2065; Kimmelman v. Morrison, 477 U.S. 365, 381, 106
S. Ct. 2574, 2586 (1986). “No particular set of detailed rules for
counsel’s conduct can satisfactorily take account of the variety
of circumstances faced by defense counsel or the range of le-
gitimate decisions regarding how best to represent a criminal
defendant.” Strickland, 466 U.S. at 688–89, 104 S. Ct. at 2065.
Judicial review of an attorney’s performance must therefore
be “highly deferential.” Id. at 689, 691, 104 S. Ct. at 2065, 2066.
22 No. 20-2786
A fair assessment of attorney performance re-
quires that every effort 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 per-
spective at the time. Because of the difficulties
inherent in making the evaluation, a court must
indulge a strong presumption that counsel's
conduct falls within the wide range of reasona-
ble professional assistance; that is, the defend-
ant must overcome the presumption that, under
the circumstances, the challenged action “might
be considered sound trial strategy.” See Michel
v. Louisiana, [350 U.S. 91, 101, 76 S. Ct. 158, 164
(1955)].
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065.
One aspect of an attorney’s obligation to his criminally-
charged client is to look into the facts of the case and to assess
potential defenses.
The duty to investigate derives from counsel’s
basic function, which is “’to make the adversar-
ial testing process work in the particular case.’”
Kimmelman v. Morrison, 477 U.S. 365, 384, 106
S. Ct. 2574[, 2588] (1986) (quoting Strickland, 466
U.S. at 690, 104 S. Ct. 2052[, 2066]). “Because that
testing process will not function properly unless
defense counsel has done some investigation
into the prosecution’s case and into various de-
fense strategies, [the Supreme Court has] noted
that ‘counsel has a duty to make reasonable in-
vestigations or to make a reasonable decision
No. 20-2786 23
that makes particular investigations unneces-
sary.’” Id. (quoting Strickland, 466 U.S. at 691,
104 S. Ct. 2052[, 2066].
Brown v. Sternes, 304 F.3d 677, 691 (7th Cir. 2002). When an
attorney has looked into a potential defense witness and yet
has made a deliberate decision not to present that individual’s
testimony, then his decision is likely a strategic decision that
warrants the greatest degree of deference from a court. United
States v. Best, 426 F.3d 937, 945 (7th Cir. 2005); see Strickland,
466 U.S. at 690, 104 S. Ct. at 2066 (“strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable”). But an outright fail-
ure to investigate a potential witness is “more likely to be a
sign of deficient performance,” Best, 426 F.3d at 945, because
without interviewing a witness and determining what pre-
cisely she would say on the stand, an attorney cannot assess
the witness’s strengths and vulnerabilities and make a reason-
able professional judgment about the likely impact of the wit-
ness’s testimony, see Blackmon v. Williams, 823 F.3d 1088, 1104–
05 (7th Cir. 2016).
Meyers contends that the Illinois Appellate Court unrea-
sonably applied Strickland in holding that Nichols did not de-
prive him of the effective assistance of counsel when he failed
to have Parker testify on his behalf. In particular, Meyers
takes issue with the notion that Nichols could have made a
legitimate strategic decision not to call Parker as a witness
without ever having interviewed her.
Note that there is a threshold, factual question as to
whether Parker was interviewed prior to the trial either by
Nichols or someone on his behalf. Recall that Assistant Public
Defender Leeming said that he discovered a page or two of
24 No. 20-2786
notes in the case file from an interview with Parker in 1990.
The State urges us to find, based on the existence of those
notes and the other evidence that Parker was interviewed,
that Nichols was aware of what she had to say, and that he
thus made an informed, strategic decision not to call her as a
witness.
But we shall give Meyers the benefit of the doubt on this
point and assume that the defense did not speak to Parker
prior to trial. The notes themselves are silent as to who took
them, and the state courts never made a finding that Nichols
(or someone on his behalf) actually interviewed Parker. And
Nichols himself could not recall anything about Parker when
he was questioned in 2010. 9
Nevertheless, as the Illinois Appellate Court observed,
Nichols was clearly aware of Parker prior to and at the time
of the trial. Meyers testified that he identified her as a pro-
spective witness to Nichols, she was disclosed as such in dis-
covery, and there is no dispute that she was subpoenaed to
appear at trial. Nichols, by Meyers’ own account, told Meyers
that Parker was present at the courthouse but that he was not
going to call her. So Nichols obviously considered the possi-
bility of calling Parker as a defense witness but decided not
to, for reasons that Meyers says Nichols did not disclose.
9For what it is worth, the law student’s notes regarding the interview
with Nichols, which were not admitted into evidence, appear to indicate
that Nichols told Leeming that with the exception of Meyers’ mother, who
did testify at trial, “no other possible witnesses [were] interviewed.”
A2062.
No. 20-2786 25
Certainly, there are decisions of this court—Meyers has
cited a number of them—holding on the facts presented that
an accused’s trial counsel could not make a legitimate strate-
gic decision not to pursue the testimony of a particular wit-
ness without first speaking to the witness and finding out
what she has to say. See Blackmon, 823 F.3d at 1104–05; Hamp-
ton v. Leibach, 347 F.3d 219, 251–52 (7th Cir. 2003); Washington
v. Smith, 219 F.3d 620, 631–32 (7th Cir. 2000); Montgomery v.
Petersen, 846 F.2d 407, 412–14 (7th Cir. 1988); Crisp v. Duck-
worth, 743 F.2d 580, 584 (7th Cir. 1984). These holdings reflect
the commonsense proposition that a lawyer cannot assess the
value of a witness’s prospective testimony without learning
what she knows, what her testimony would be, the plausibil-
ity of that testimony, and how the witness would present her-
self on the stand. E.g., Blackmon, 823 F.3d at 1104–05. Given
our assumption that neither Nichols nor anyone on his behalf
ever interviewed Parker, Nichols would have known only
what his client told him about the alibi Parker could offer, and
for present purposes we can accept Meyers’ contention that
this limited knowledge was insufficient to fully evaluate Par-
ker’s value as a witness: what specifically she would say on
the witness stand, how credibly she would testify, how she
might hold up on cross-examination, how the jury might per-
ceive her, and so forth. See id.; Hampton, 347 F.3d at 252 (citing
Lord v. Wood, 184 F.3d 1083, 1095 (9th Cir. 1999)).
On the specific facts of this case, however, we do not think
that the limits of Nichols’ knowledge vis-à-vis Parker pre-
cludes a finding that he made a reasonable, strategic decision
not to call Parker as a witness. That is what the Illinois Appel-
late Court concluded on applying Strickland, and our role is
limited to evaluating the reasonableness of that conclusion.
§ 2254(d)(1). Strickland, as we have said, calls for a deferential
26 No. 20-2786
review of an attorney’s conduct, and given the constraints
that the AEDPA imposes on our review of the state court’s
decision in this regard, our application of Strickland here is
“doubly deferential.” Knowles v. Mirzayance, 556 U.S. 111, 123,
129 S. Ct. 1411, 1420 (2009). Only if no reasonable argument
can be made that Nichols’ decision not to call Parker as a wit-
ness was a legitimate strategic decision under Strickland could
we grant Meyers relief. See Shannon, 27 F.4th at 1267, 1268 (cit-
ing Harrington v. Richter, 562 U.S. 86, 105, 131 S. Ct. 770, 788
(2011)). Strickland also states that a defendants’ counsel must
engage in a reasonable investigation or make a reasonable de-
cision that a particular investigation is unnecessary. Strick-
land, 466 U.S. at 691, 104 S. Ct. at 2066. Whether a decision not
to investigate is reasonable must be assessed on the totality of
the circumstances. Ibid.Meyers testified that he told Nichols he was with Parker
at the time of the shooting, and so Nichols understood the gist
of what Parker had to say. True, Nichols hadn’t spoken with
Parker and sized her up as a potential witness, but he knew
that she would provide an alibi, and it was a relatively
straightforward, uncomplicated alibi.
But as the state appellate court pointed out, Nichols also
knew that, according to the State, his client had given post-
arrest statements which not only omitted the alibi but, in di-
rect contradiction to that alibi, admitted his presence at the
scene of the shooting. Meyers would later deny the substance
of those statements (and evidently no written record was
made of the statements at the time they were given), but Nich-
ols had moved to suppress them and had also moved in limine
to exclude Meyers’ alleged statement to the police that he was
present at the scene looking to buy marijuana. Those motions
No. 20-2786 27
were not successful, and the trial court was prepared to allow
Detective Winstead to recount these statements in redacted
form to the jury, but ultimately the statements had not come
into evidence at trial only because the State had withdrawn
its request to admit the statements. See n.8, supra. But had Par-
ker testified and presented Meyers’ alibi, there can be little
doubt that the State would have introduced Meyers’ state-
ments, which the trial court had already signaled it was pre-
pared to admit into evidence.
Even if we were to credit Meyers’ averment that the police
fabricated his post-trial statements, Nichols knew that Par-
ker’s alibi testimony would open the door to testimony from
both Winstead and Assistant State’s Attorney Marconi that
Meyers had confessed to them his presence at the scene of the
shooting. This in turn presented the substantial risk that Mey-
ers’ alleged out-of-court statements might bolster the credibil-
ity of Wilson’s inculpatory testimony at trial—and A.W.’s for
that matter—that Meyers was not only present at the scene of
the murders but was a participant in the crimes. Avoiding
that risk is a classic strategic judgment. Given that Nichols was
aware of the gist of Parker’s alibi testimony through Meyers
and he knew what risk her prospective testimony presented
to the defense, the fact that he had not interviewed her is not
dispositive of the ineffectiveness claim. Nichols knew enough
to make a sound strategic assessment. Or, put in the terms of
the AEDPA, it was not unreasonable for the Illinois Appellate
Court to so conclude. Cf. Gilbreath v. Winkleski, 21 F.4th 965,
985–86 (7th Cir. 2021) (“We cannot say that [counsel’s] deci-
sion not to investigate [victim’s cousin] further in light of
what he already knew and in the context of his general strat-
egy was objectively unreasonable. Nor can we say that the
28 No. 20-2786
state court unreasonably applied Strickland in refusing to fault
[counsel] for this choice.”).
Meyers contends, however, that it is inappropriate to
credit Nichols with this strategic judgment given that, by the
time an evidentiary hearing was conducted as to the ineffec-
tiveness claim, Nichols had died and therefore could not be
examined as to why he did not present Parker as a witness.
He has, once again, cited precedents from this court indicat-
ing that it is improper to attribute a strategic rationale to coun-
sel that counsel himself has not articulated. See Harris v. Reed,
894 F.2d 871, 878 (7th Cir. 1990) (“Just as a reviewing court
should not second guess the strategic decisions of counsel
with the benefit of hindsight, it should not construct strategic
defenses which counsel does not offer.”), quoted by Davis v.
Lambert, 388 F.3d 1052, 1064 (7th Cir. 2004). 10 But, of course, a
court starts the Strickland analysis with the strong presump-
tion that counsel was not ineffective, Kimmelman, 477 U.S. at
381, 106 S. Ct. at 2586; Strickland, 466 U.S. at 689, 104 S. Ct. at
2065, and when addressing the particular conduct for which
his convicted client has faulted him, further presumes “that,
under the circumstances, the challenged action might be con-
sidered sound trial strategy,” id., 104 S. Ct. at 2065 (cleaned
up). For us to presuppose, when counsel is unavailable to ex-
plain his decision-making, that he had no strategic rationale
for the particular choice at issue—when a choice clearly was
made—would turn these presumptions on their head.
10We point out that our decision in Harris pre-dates the AEDPA, and
in Davis, the state courts had summarily dismissed the petitioner’s inef-
fectiveness claim without a hearing, leaving us without an application of
Strickland by the state courts to a developed set of facts (leading us to re-
mand the case to the district court to conduct such a hearing).
No. 20-2786 29
Furthermore, what we examine under the AEDPA is a
state court’s application of clearly established law as deter-
mined by the Supreme Court. § 2254(d)(1). See Brown v. Dav-
enport, 142 S. Ct. 1510, 1525 (2022) (“It is not enough that the
state-court decision offends lower court precedents.”) (citing
Glebe v. Frost, 574 U.S. 21, 24, 135 S. Ct. 429, 431 (2014) (per
curiam)). The Supreme Court has admonished that “courts
may not indulge in ‘post hoc rationalization’ for counsel’s de-
cisionmaking that contradicts the available evidence of coun-
sel’s actions,” Richter, 562 U.S. at 109, 131 S. Ct. at 790 (quoting
Wiggins v. Smith, 539 U.S. 510, 526–27, 123 S. Ct. 2527, 2538
(2003)), but it has also rejected the notion that “counsel [must]
confirm every aspect of the strategic basis for his or her ac-
tions,” ibid. “Strickland … calls for an inquiry into the objective
reasonableness of counsel’s performance, not counsel’s sub-
jective state of mind.” Id. at 110, 131 S. Ct. at 790.
The Illinois Appellate Court did not fabricate from whole
cloth the strategic rationale for rejecting Parker as a witness.
Not only was Nichols obviously aware of Parker as a potential
witness—he subpoenaed her—but he had previously en-
gaged in motions practice with the indisputable aim of keep-
ing Meyers’ post-trial statements out of evidence at trial. So
although the state court did not have the benefit of Nichols’
testimony, neither was it engaging in wholesale conjecture:
Nichols’ own actions reflect that, on the one hand, he affirm-
atively considered presenting Parker’s testimony (and had
her summoned to the courthouse in order to preserve the alibi
option until the last moment), and on the other hand, that he
was concerned about the potential impact of Meyers’ contrary
post-arrest statements, which he had taken steps to exclude
from evidence at trial. We do not have Nichols’ testimony
linking the two, but the risk that the defense would be taking
30 No. 20-2786
by pursuing the alibi through Parker is obvious from the rec-
ord. It was not an unreasonable application of Strickland for
the Illinois Appellate Court to conclude that Nichols had a le-
gitimate strategic reason for keeping Parker off the witness
stand.
Because the state court did not unreasonably apply Strick-
land in concluding that Nichols was not ineffective, we need
not reach the question of any prejudice resulting from his pur-
ported ineffectiveness.
B. State’s knowing use of perjured testimony (Wilson)
The Supreme Court’s decision in Napue v. Illinois, supra,360 U.S. at 269, 79 S. Ct. at 1177, holds that a State’s knowing
use of perjured testimony to secure a defendant’s conviction
violates his right to due process under the Fourteenth
Amendment. Meyers argues that Wilson’s recantation
demonstrates that the State knowingly used false testimony
to convict him.
There is a serious question whether, as the State argues,
Meyers procedurally defaulted the Napue claim by not pre-
senting it as such at each level of review in the Illinois courts.
In order to preserve a federal claim for review in a habeas pro-
ceeding, a petitioner must first present it to the state courts
through one full round of review, alerting those courts as to
the federal nature of the claim when he does so. Brown v.
Eplett, No. 21-1515, 48 F.4th 543, 552 (7th Cir. 2022), (collecting
cases). There is no dispute that Meyers invoked Wilson’s re-
cantation in state court to argue that he was wrongly con-
victed, but whether he presented the claim as a federal Napue
claim as opposed to a claim for relief under Illinois law is far
less clear. Illinois law recognizes a freestanding claim of
No. 20-2786 31
actual innocence, see People v. Washington, 665 N.E.2d 1330,
1336–37 (Ill. 1996); People v. Griffin, — N.E.3d —, 2022 WL
965410, at *4 (Ill. App. Ct. Mar. 31, 2022), appeal allowed, 2022
WL 4981463 (Ill. Sep. 28, 2022), which, as relevant here, does
not require proof that the prosecution knowingly presented
perjured testimony from a witness who has since recanted. 11
Without question, Meyers and other defendants pursued
claims of actual innocence in state court. But on the record the
parties have put before us, it does not appear that Meyers
fairly presented a Napue claim to the state courts.
The indications that he did not begin at the circuit court
level. Although Meyers made reference to Wilson’s perjury
and the State’s alleged subornation of that perjury in his orig-
inal, pro se petition for postconviction relief, A1973–74, he did
so in the context of asserting that his trial counsel was ineffec-
tive in failing to adequately investigate the scene of the shoot-
ing and to establish (with expert testimony if necessary) that
Wilson’s purported ability to see and identify the shooters
was fabricated. See Malone v. Walls, 538 F.3d 744, 755 (7th Cir.
2008), distinguishing Lewis v. Sternes, 390 F.3d 1019, 1026 (7th
Cir. 2004). When he later filed a supplemental petition
through counsel, he reiterated that Wilson’s testimony “was
a complete lie” (A1994), and he referred to that testimony as
having been “bought” by the police and the prosecutors
11 As the Illinois Supreme Court noted in Washington, “Procedurally,
such [actual innocence] claims should be resolved as any other brought
under the [Post-Conviction Hearing] Act. Substantively, relief has been
held to require that the supporting evidence be new, material, noncumu-
lative and, most importantly, of such conclusive character as would prob-
ably change the result on retrial.” 665 N.E.2d at 1337 (cleaned up).
32 No. 20-2786
(A1992–93), but he made these representations in support of
an actual innocence claim. A1994–97.
At the appellate level, moreover, there are strong indica-
tions that Meyers presented his claim solely as one of actual
innocence under Illinois law rather than one premised on the
State’s knowing presentation of perjured testimony in viola-
tion of Napue. The Illinois Appellate Court’s opinion itself ad-
dressed the claim as one of actual innocence only. SA32–34.
Unfortunately, the primary briefing in the appeal is not part
of the record and the parties have been unable to otherwise
track it down; we have only Meyers’ reply brief, which he at-
tached to his petition for leave to appeal to the Illinois Su-
preme Court. The reply brief addresses the veracity of Wil-
son’s recantation at some length but sheds no light on the par-
ticular legal claim or claims that Meyers was making based on
the recantation. On the other hand, after his counsel filed the
opening brief in the appeal, Meyers sought leave to file a sup-
plemental pro se brief which expressly raised a Napue due
process claim. But the appellate court rejected the pro se brief
in view of the fact that Meyers was represented by counsel.
After the court issued its merits decision resolving the appeal,
Meyers discharged his counsel, and the court allowed Meyers
to file a pro se petition for rehearing, to which he attached the
supplemental brief that the court had previously rejected. (He
later did the same when petitioning for leave to appeal to the
state supreme court.) The petition for rehearing itself ex-
pressly acknowledges that the claims raised in his pro se sup-
plemental brief were (with one exception) not ones pursued
by his appointed counsel in the primary briefing. 7th Cir.
R. 61-2 at 7 (asking court to grant rehearing, rescind its prior
order denying him leave to file his supplemental pro se brief,
and to consider the claims raised therein), 11 (“Petitioner
No. 20-2786 33
brings to the court[‘]s attention that Mr. Bennett [his former
counsel] has not raised the above stated errors … .”), 12 (“Mr.
Bennett … [h]as not raised any of the claims in petitioner’s pro
se[ ] petition, and only one of the claims the petitioner in-
tended [to] file in a supplemental brief, which [claim] was re-
versed and remanded ([i]neffective assistance of trial coun-
sel)[.]”).
There can be little doubt, then, that counsel’s own appel-
late briefing omitted a Napue claim. That being the case, rais-
ing such a claim for the first time in a petition for rehearing,
as Meyers was attempting to do, would be too late to preserve
the claim. See Ill. Sup. Ct. R. 341(h)(7); Lewis, 390 F.3d at 1031;
Cruz v. Warden of Dwight Correctional Ctr., 907 F.2d 665, 669
(7th Cir. 1990). We agree with the district court that Meyers
procedurally defaulted the Napue due process claim.
Lest there be any doubt on this score, we do not rest our
decision on the fair presentment ground alone. On the merits
of the Napue claim, we see another problem that forecloses re-
lief to Meyers.
In order to prevail on a Napue claim, Meyers would have
to show in the first instance that Wilson perjured himself
when he identified Meyers as one of the shooters. See, e.g.,
United States v. Coleman, 914 F.3d 508, 512 (7th Cir. 2019). Re-
call that the first postconviction judge did not credit Wilson’s
recantation as to Meyers—although he did credit the recanta-
tion as to his co-defendants Smith and Bannister—and the Il-
linois Appellate Court affirmed that credibility assessment, so
Meyers’ first hurdle would be to show that the appellate
court’s decision on this point was unreasonable. Meyers has
briefed this point extensively, which comes as no surprise
given the awkwardly-articulated and seemingly self-
34 No. 20-2786
contradictory finding that Wilson’s recantation was credible
as to Smith and Bannister but not as to Meyers. But we may
set that issue aside.
Even assuming that Wilson’s recantation was credible,
and that he perjured himself at trial, Meyers must also show
that the State knew (or should have known) that Wilson was
lying and nonetheless chose to present his false testimony at
trial. See United States v. Cosby, 924 F.3d 329, 336 (7th Cir.
2019); Coleman, 914 F.3d at 512; United States v. Saadeh, 61 F.3d
510, 523 (7th Cir. 1995). And as the State points out, although
the postconviction judge credited Wilson’s recantation as to
Smith and Bannister and agreed that Wilson gave false testi-
mony against them at trial, he also specifically found that the
State did not knowingly present perjured testimony. SA2, 3.12
He added, in support of that finding, “I believe Mr. McKay’s
[the prosecutor’s] testimony, and I believe he honestly
brought forth Wilson’s testimony.” SA3; see also SA2 (“Mr.
McKay’s testimony was credible and I believe it.”).
The postconviction judge’s finding on this point neces-
sarily defeats Meyers’ Napue claim. In the briefing, Meyers has
argued the question of the State’s knowledge of Wilson’s per-
jury purely as a de novo matter, as if the state courts had never
reached it. But the state postconviction judge obviously did
decide this question, and so our role as a federal court is to
consider whether the judge’s factual determination was un-
reasonable given the evidence presented to him. § 2254(d)(2).
The AEDPA requires us to presume that the state court’s
12 Smith and Bannister pursued Napue claims in addition to the actual
innocence claims. The postconviction court granted them relief on the ac-
tual innocence claims in the form of a new trial.
No. 20-2786 35
finding was correct, and it places the burden on Meyers to re-
but that presumption with clear and convincing evidence. See
Shannon, 27 F.4th at 1268. Meyers has not undertaken to make
that showing by engaging with the judge’s adverse finding
and demonstrating, with clear and convincing evidence, why
the judge resolved this point unreasonably. Consequently, we
must accept the postconviction judge’s finding as reasonable;
and that finding precludes relief to Meyers under Napue. 13
III.
For all of the foregoing reasons, we AFFIRM the judgment.
13 We note that much of the evidence Meyers cites as proof that the
State must have known that Wilson was lying—including, for example,
certain conflicts between Wilson’s account at trial and his prior statements
to the police and to the grand jury, and the obvious limitations on what
Wilson would have been able to see from the second-floor porch of the
3517-19 building (as Detective Winstead acknowledged in his testi-
mony)—was thoroughly explored on cross-examination by defense coun-
sel at trial.