Moore, Reynold C. v. Casperson, Steven

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3055
REYNOLD C. MOORE,
Petitioner-Appellant,
v.
STEVEN B. CASPERSON,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 408—Patricia J. Gorence, Magistrate Judge.
____________
ARGUED MAY 14, 2003—DECIDED SEPTEMBER 29, 2003
____________
Before POSNER, RIPPLE and MANION, Circuit Judges.
RIPPLE, Circuit Judge. Reynold Moore was convicted in
Wisconsin state court of first degree intentional homicide as
a party to a crime, in violation of Wisconsin Statutes
§§ 940.01 and 939.05. After having attempted without suc-
cess to obtain relief through a post-conviction motion and in
the Court of Appeals of Wisconsin, Mr. Moore filed a
petition for review in the Supreme Court of Wisconsin,
which was denied. In that petition, he included only three
of his eight claims. Mr. Moore then petitioned for habeas
2 No. 02-3055
corpus relief. See 28 U.S.C. § 2254. The district court deter-
mined that the five claims not raised in the petition to the
Supreme Court of Wisconsin were procedurally defaulted.
With respect to the three remaining claims, the district court
denied habeas relief on the merits. For the reasons set forth
in the following opinion, we affirm the judgment of the
district court.
I
BACKGROUND
A.
On November 10, 1992, Thomas Monfils, an employee at
the James River Paper Mill, called the Green Bay, Wisconsin
police department and anonymously informed the police
that one of his coworkers, Keith Kutska, was planning to
steal an expensive piece of electrical cord from the plant.
The police informed the company of the tip. James River
Security Guards Gary Schmitz and John Gilson stopped
Kutska on his way out of the plant and asked Kutska to
show them the contents of his bag. Kutska refused and re-
ceived five days of unpaid suspension.
Monfils asked the police not to give anyone access to
the tape of his call and not to disclose his identity. Although
the police promised they would keep the tape confidential,
they gave the tape to Kutska. Kutska recognized Monfils’
voice and then brought the tape to work. He played the tape
for various coworkers, including once for Monfils, in the
number 9 control room (or “coop”). Connie Jones, a lab
technician, who was at coop 9 to take readings from a
machine, listened to the tape. As she returned to the lab, she
encountered Mr. Moore. She told him about the tape and
suggested that Mr. Moore go and listen to it. Mr. Moore
No. 02-3055 3
went and listened to the tape and was told that the voice
was that of Monfils. He did not know Monfils.
Monfils left his post at coop 7 and was confronted around
7:35 a.m. by a group of workers near a water fountain be-
tween coops 7 and 9. Monfils was attacked and seriously
injured. He ended up lying in a ball on the floor, uncon-
scious but alive. At approximately 7:40 a.m., mill worker
David Wiener observed, from the break room, that Dale
1
Basten and Michael Johnson were carrying something,
which he could not see, toward a pulp vat. Johnson was
walking backwards, and the two men were five to six feet
apart.
At 7:45 a.m., Kutska and Mr. Moore entered coop 7, fol-
lowed by Piaskowski. Kutska told Piaskowski to alert a su-
pervisor that Monfils was missing. The next day, Monfils’
partially decomposed body was found at the bottom of the
pulp vat. A heavy weight, usually kept near machine 7, was
tied around his neck. The coroner determined that Monfils
died by asphyxiation due to the aspiration of paper pulp.
For two years, the Green Bay police made no progress in
the case. But then, in April 1995, Brian Kellner told police
that, on the previous Fourth of July, Kutska, after drinking
an alleged forty beers, had admitted that he, Mr. Moore and
several other coworkers had confronted Monfils near the
water fountain after the 7:34 a.m. turnover. Kutska had
drawn a diagram of where each defendant stood and had
told Kellner that someone slapped Monfils and that Hirn
1
Basten and Johnson were Mr. Moore’s coworkers and code-
fendants. In all there were six defendants charged with the mur-
der of Monfils: Mr. Moore, Basten, Johnson, Kutska, Michael
Piaskowski and Michael Hirn.
4 No. 02-3055
shoved him. Kutska asked “what if” someone hit Monfils
with a wrench or a board.
Kellner testified to Kutska’s statement at trial, but, in a
post-conviction proceeding, recanted some of his statement
and testified that Kutska only identified himself, Hirn and
Mr. Moore.
B.
Mr. Moore, along with five codefendants, was charged
with and convicted of first degree intentional homicide as a
party to a crime. The only evidence about the confrontation
with the decedent was the testimony of Kellner concern-
ing Kutska’s statement and the testimony of James Gilliam.
Gilliam was incarcerated with Mr. Moore. He testified that,
while in prison together, Mr. Moore had said that he,
Kutska and others confronted Monfils, that Kutska initially
hit Monfils and that Mr. Moore then decided that he would
“just do it [hit Monfils] like everybody else and he was just
came from with his fist over the head just like—just like
hitting him on the head and he was just kicking and beating
him.” Tr. 10/13/1995 at 170. According to Gilliam, Mr.
Moore said “he came over everybody else’s arm and just
started popping him in the head, I mean, with his fist.” Id.
at 171. However, according to Gilliam, Mr. Moore said that
he was surprised to learn of Monfils’ ultimate demise in the
pulp vat.
The trial court gave the following limiting instruction to
the jury:
Some evidence has been received in this trial which re-
lates to one or more of the defendants, without having
any reference to the remaining defendants. In consider-
ing and evaluating such evidence, you should exercise
No. 02-3055 5
the utmost care and discretion. Such evidence may be
used only in considering whether the individual or in-
dividuals with whom it is concerned are guilty or not
guilty. Such evidence must not be used or considered in
any way against any of the other defendants who are
not implicated by such evidence, either directly or by
inference, except insofar as you may consider that evi-
dence in connection with the instructions which have
been given you regarding a conspiracy.
R.2, Ex.A at 20 (footnote omitted).
Another key state witness was Connie Jones, the lab tech-
nician who had told Mr. Moore about the tape and sug-
gested that he listen to it. In all of her statements prior
to trial, including her deposition and statements to the po-
lice, Jones had indicated that she saw Mr. Moore at about
the time of a procedure known as a “turnover,” which the
factory records indicated took place at 7:34 a.m. Conse-
quently, she had testified that she had seen Mr. Moore about
7:35 a.m. or soon thereafter. If that testimony was accurate,
that indicated that Mr. Moore probably would have arrived
at coop 9 slightly too late to have participated in the beating
of Monfils.
About a week before trial, a member of the prosecution
team met with Jones. The attorney asked Jones “whether
[the procedure] could have been a paper break that she saw
Tom Monfils working on as opposed to a turnover which
the earlier statements had said.” R.5, Ex.2 at 64. Factory rec-
ords indicated that a “paper break”—a different procedure
from a “turnover”—had been performed at 7:17 a.m. Jones
said that she was not sure which she had seen because she
never had observed both procedures. After this meeting
with the prosecution, Jones, of her own volition, went to the
factory and observed both procedures. On the basis of that
observation, Jones came to believe that it was possible, and
6 No. 02-3055
perhaps even more likely, that she had seen a “paper break”
rather than a turnover. The record indicates that she called
the prosecution and informed them of her changed time
frame. See R.5, Ex.2 at 70. The prosecution did not pass
along this information to the defense until after trial began
and, apparently, until after Jones had testified on October 3.
In Mr. Moore’s opening statement, his defense counsel
relied on the timing to make his argument that Mr. Moore
arrived too late to take part in the beating. Counsel noted
that Jones would state that she had seen a turnover, which
the records indicate took place at 7:34 or 7:35, and had
talked to Mr. Moore afterwards. See Tr. 9/27/1995 at 140.
However, when Jones later testified, she stated that she was
unsure as to whether she witnessed a paper break or a
turnover. She explained at trial that the prosecution had
mentioned to her that a paper break had been performed
and thus “there was a possibility that what I saw was not an
actual turnover, but a paper break.” Tr. 10/3/1995 at 91. She
then recounted that she had observed both procedures and
that, although she remained unsure, she did think, based on
differences in the procedures that she observed, that “[i]t
would be more reasonable” to conclude that she had seen a
paper break rather than a turnover. Id. at 92. Her conclusion
with regard to timing was that she believed that she saw
Mr. Moore “somewhere about 7:25,” but that was merely
“an approximation” and that it could “possibly” be “as late
as 7:35,” but it could not have been “as early as 7:15.” Id. at
94.
Defense counsel for several of the defendants, includ-
ing counsel for Mr. Moore, cross-examined Jones about her
prior statements concerning what she had seen and the time
frame in which she had seen it. Defense counsel for Kutska
attempted to show from Jones’ other testimony that she
No. 02-3055 7
could not have seen a paper break. See id. at 105. In cross-
examination by Mr. Moore’s own counsel, he attempted to
show that Jones previously had testified that she had looked
at a clock and thus her prior time frame was correct. See id.
at 121. He further attempted to demonstrate that all of her
prior inconsistent statements impeached her credibility. See
id. at 119-25. Moreover, Mr. Moore’s counsel further brought
out on cross-examination that Jones had changed her
testimony in the week before trial—after the prosecution
had talked to her and suggested such a possibility. See id. at
125-26.
Mr. Moore testified at trial and indicated that he had seen
Jones at the later time period (consistent with the turnover
theory). At closing argument, the prosecution stated that
Jones was
a very important witness to Rey Moore because his de-
fense rises and falls with Connie Jones. If Connie Jones
can’t make that a turnover that she saw just before she
left the No. 9 coop and went back to the lab, then Rey
Moore is sunk. Because Rey Moore is at that No. 9 coop
much earlier than what he said on the witness stand.
Tr. 10/27/1995 at 238-39.
Also at trial, the defense, but not Mr. Moore’s counsel,
attempted to introduce a computer-generated animated
videotape prepared by experts to establish that David
Wiener, who had seen Johnson and Basten carrying the
body to the vat, could not have seen them from his position.
The trial court excluded the videotape because it found that
the tape might mislead the jury. The trial court nevertheless
admitted a videotape offered by the state that was taken
from the room showing from various positions in the room
what could and could not be seen. Mr. Moore was convicted
of first degree homicide as a coconspirator with the other
8 No. 02-3055
defendants. The State’s theory was that, after beating
Monfils to unconsciousness, the group decided that they
needed to cover up the severe beating of Monfils to avoid
discharges. They therefore decided to throw the body in the
vat.
C.
Mr. Moore sought post-conviction relief. The state trial
court refused to grant a new trial on the basis of the newly
discovered evidence of Kellner’s post-conviction partial
recantation. The court explained that Kellner’s initial
testimony was not terribly credible, and neither was his
recantation. The court stated that Kellner clearly “commit-
ted perjury either at the time of the trial or the February
1997 motion hearings,” but that “[a]t what time he was lying
is immaterial. His trial testimony established, if believed
then, that certain named individuals were present at a
confrontation near a ‘bubbler.’ It does nothing more than
that.” R.5, Ex.4 at 3. The court noted that the recantation was
“not with respect to the incident as a whole, but rather with
respect to the question of identification of individuals.” Id.
at 4. The court concluded that “Mr. Kellner’s recantation
would have no effect whatsoever on the result in the trial of
these cases.” Id. The court also stated that it had
a great deal of difficulty in accepting that the recanta-
tion is in fact credible and indeed doubts that a reason-
able jury would believe the recantation. However, even
if such recantation were believable and a jury were to
accept it as truthful, there is still no reasonable probabil-
ity of a different result in the jury verdict.
Id. at 4-5.
The trial court found that no prosecutorial misconduct
had occurred in the suggestion to Jones that she might have
No. 02-3055 9
seen a paper break and in her subsequent observance of
both procedures at the factory. The court further found that
Jones was a credible witness and that the prosecution had
not engaged in misconduct by failing to tell the defense
about Jones’ changed time line. The court recognized that
the “State must disclose evidence which might be material
to the credibility of a witness,” but here the “inconsistency
in her testimony was readily apparent and counsel were
able to, and in fact did, impeach her testimony through the
use of prior statements and deposition testimony. . . . The
evidence was indeed produced during the process of cross-
examination and [the failure to give the defense such evi-
dence at an earlier time] had no effect on the jury verdict.”
R.2, Ex.B at 5.
Finally, the trial court rejected Mr. Moore’s ineffective
assistance of counsel claim. It ruled that it could “find[]
nothing deficient” in the performance of Mr. Moore’s
defense counsel. Id. at 6. Mr. Moore had argued that his
counsel, upon hearing Jones’ change in time frame, should
have “then requested an adjournment or a mistrial or an
evidentiary hearing to establish the basis for the surprise
testimony.” Id. The court held:
Assuming that any of those things had been done, this
Court can see no reason why an adjournment would
have been granted, why a mistrial would have been
granted or why an evidentiary hearing would have been
held. As previously mentioned, it was simply a question
of a witness testifying differently from previous state-
ments. That is a fact of life in the course of a trial.
Defense counsel had all the previous statements, had
more than adequate opportunity to impeach, and did
so.
Id.10 No. 02-3055
D.
Mr. Moore appealed to the Court of Appeals of Wisconsin.
He raised eight claims in his appeal: (1) that there was
insufficient evidence for his conviction; (2) that he was en-
titled to a new trial based on Kellner’s recantation; (3) that
the court erroneously admitted hearsay evidence and
permitted it to be used against all defendants; (4) that the
court erred by denying the defendants’ motions to sever; (5)
that the court erroneously excluded impeachment evidence
of a prosecution witness; (6) that the court erred in failing to
admit a videotape; (7) that his conviction should be reversed
based on the State’s failure to disclose exculpatory and
material evidence; and (8) that his counsel was ineffective.
The court affirmed the judgment of the trial court in all
respects.
The court held that Mr. Moore and his codefendants were
not entitled to a new trial on the basis of the newly discov-
ered evidence of Kellner’s recantation. See R.2, Ex.A at 10.
The court noted that, under Wisconsin law, a defendant
is entitled to a new trial on the basis of newly discovered
evidence if five criteria are met. See id. The court observed
that “a recantation generally satisfies the first four require-
ments,” id. at 12, but not necessarily the fifth requirement
that “it is reasonably probable that a different result would
be reached at a new trial,” id. at 10. Relying on Wisconsin
law, the court noted that “a determination by the trial court
that the recantation is not credible is sufficient to conclude
that it is not reasonably probable that a different result
would be reached at a new trial.” Id. at 13. Here, the appel-
late court continued, “the trial court [had] made two deter-
minations[:] first, that the recantation was not credible and
second, even if the recantation was credible, there was still
no reasonable probability of a different result.” Id. at 13(footnotes omitted). The court concluded: “[T]he trial court
No. 02-3055 11
observed Kellner’s testimony both at trial and at post-trial
hearings. It found Kellner’s reasons for changing his testi-
mony unworthy of belief. We fail to see how the trial court’s
rejection of Kellner’s recantation as credible was clearly
erroneous and therefore we affirm.” Id. at 14.
The court determined that Kellner’s statement, as a
“statement against interest,” was reliable because it also in-
cluded “self-inculpatory statements” and thus “was prop-
erly admissible as evidence, not only against Kutska, but
also against Johnson, Basten and Moore.” Id. at 29. As to
severance, the Wisconsin appellate court noted that, under
Wisconsin rules, “[i]f the district attorney intends to use the
statement of a codefendant that implicates another defen-
dant in the crime charged, the judge shall grant a severance
as to any such defendant.” Id. at 32. The Wisconsin court
noted that this action was necessary to comply with Bruton
v. United States, 391 U.S. 123 (1968), which prevents the use
of a codefendant’s statement inculpating another defendant
at a joint trial based on the codefendant’s Sixth Amendment
right to confront witnesses. Nevertheless, the appellate court
concluded that
the trial court did not misuse its discretion for two rea-
sons: first, Kutska’s statement was self-inculpatory and
directly admissible against all of his codefendants under
a firmly-rooted hearsay exception, see Williamson v.
[2]
United States, 512 U.S. [601, 603 (1999)]; and, second,
because Kutska did testify in his own defense and was
subject to cross-examination, no Bruton problem arose
which would have required severance.
R.2, Ex.A at 32 (footnote omitted).
2
In Williamson v. United States, 512 U.S. 601, 603 (1999), the Court
stated: “[A] declarant’s squarely self-inculpatory confession . . .
will likely be admissible . . . against accomplices of his who are
being tried under a co-conspirator liability theory.”
12 No. 02-3055
As to Mr. Moore’s other claims, the court found that the
prosecution’s failure to notify Mr. Moore of Jones’ change in
testimony did not constitute prosecutorial misconduct
under Brady v. Maryland, 373 U.S. 83 (1963), for failure to
disclose material exculpatory evidence to a defendant. The
court explained that Jones’ change in testimony concerning
the time line of events and whether she witnessed a turn-
over or a paper break was “more damaging” to Mr. Moore
rather than exculpatory or “favorable,” and thus Brady did
not apply. R.2, Ex.A at 43. The court also found that there
was no evidence of incompetence by Mr. Moore’s counsel.
Having been denied relief in the state intermediate
appellate court, Mr. Moore next filed a petition for review
in the Supreme Court of Wisconsin. The petition was
denied. In that petition, Mr. Moore raised only three of
the eight claims that he had brought before the appellate
court, namely: (1) whether the State denied him due process
by failing to disclose Jones’ change in her testimony; (2)
whether under Brady v. Maryland, 373 U.S. 83 (1963),
the prosecutor was required to disclose Jones’ statement
because it was exculpatory and material; and (3) whether he
was denied due process by failure to grant a new trial based
on Kellner’s recantation.
E.
Mr. Moore then filed for a writ of habeas corpus in the
district court. In that petition, he raised all eight claims that
he had raised in the Wisconsin Court of Appeals. The dis-
trict court determined that all but the three issues that had
been presented to the Supreme Court of Wisconsin were
procedurally defaulted.
The court addressed Mr. Moore’s claim that he had been
denied due process by the trial court’s failure to grant him
No. 02-3055 13
a new trial. Recognizing the Supreme Court’s statement in
Herrera v. Collins, 506 U.S. 390, 400 (1993), that “ ‘[c]laims of
actual innocence based on newly discovered evidence have
never been held to state a ground for federal habeas relief
absent an independent constitutional violation occurring
in the underlying state criminal proceeding,’ ” R.37 at 24
(quoting Herrera, 506 U.S. at 400), the district court ex-
plained that Mr. Moore “does not contend that there is any
underlying constitutional violation with respect to the tes-
timony of Mr. Kellner.” Id. at 25. Rather, Mr. Moore’s
petition contended that the state trial court erred because
Kellner’s statement was allegedly the only trial evidence
linking Mr. Moore to the confrontation (which the district
court noted was an inaccurate summation of the record).
Because Mr. Moore’s only argument was “that if the new
evidence was presented to the jury it might decide the case
differently,” and Mr. Moore had not pointed to any under-
lying constitutional violation with respect to Kellner’s tes-
timony, Mr. Moore had “not established that his due
process rights were violated.” Id.
The court then turned to Mr. Moore’s claim that he was
denied due process because the State failed to disclose
Jones’ change in testimony as required by Brady v. Maryland.
It summarized the state appellate court’s treatment of the
Brady issue as follows:
The Wisconsin court of appeals summarized that
applicable law noting that due process requires disclo-
sure only of evidence that is both favorable to the
accused and material to either guilt or punishment. As
an initial matter, the court of appeals noted that Ms.
Jones’s statement would not have been favorable to the
petitioner because it enlarged the amount of time for the
petitioner’s involvement in the tape-playing incident
14 No. 02-3055
and the confrontation, and was actually more damaging
evidence against the petitioner.
The court also distinguished Giglio v. United States,
405 U.S. 150 (1972), upon which the petitioner relied.
The court of appeals stated that Giglio dealt with the
State’s failure to disclose a deal with a key prosecution
witness that prevented the defendant from having evi-
dence bearing on the witness’s credibility and bias and
that Ms. Jones’s changed account is not the type of
evidence bearing on credibility that requires disclosure.
The court further stated that in the case before it, the
defense had at its disposal, and did employ, all of Ms.
Jones’s prior inconsistent statements to impeach her
present account and to attack her credibility before the
jury.
Id. at 27 (internal citations omitted).
The district court then reviewed the requirements of
Brady. The court stated that in order to succeed on a claim
of a Brady violation, “a defendant must establish that 1) the
prosecution suppressed or withheld evidence that 2) was
favorable and 3) material to the defense.” Id. at 28. The court
further noted that “constitutional error results from its
suppression by the government ‘if there is a reasonable
probability that, had the evidence been disclosed to the de-
fense, the result in the proceeding would have been differ-
ent.’ ” Id. (quoting United States v. Bagley, 473 U.S. 667, 686
(1985)).
The court then considered whether the state court’s
determination with respect to the Brady issue was contrary
to federal law as articulated by the Supreme Court and
concluded that it was not:
The state court correctly articulated the law with
respect to the disclosure of Brady and Giglo [sic] evi-
No. 02-3055 15
dence. The application of such law to the circumstance
of this case was also correct. Significantly, this changed
testimony was disclosed at trial. Counsel for the peti-
tioner was able to cross-examine Ms. Jones at length
regarding the change in her testimony. This cross ex-
amination began in the morning of trial and continued
after the noon break. Petitioner’s counsel had an addi-
tional opportunity to re-cross examine Ms. Jones again
that afternoon. The petitioner clearly had an ample
opportunity to cross-examine Ms. Jones with respect to
the change in her testimony.
Id. at 30 (internal citations omitted). Consequently, because
defense counsel had ample opportunity to address Jones’
altered testimony, no prejudice to Mr. Moore occurred, and
the state court was not acting contrary to federal law in
finding that there was no Brady violation.
Finally, the district court turned to the issue of whether
the state’s action in influencing Jones’ testimony constituted
prosecutorial misconduct and therefore a denial of due
process. With respect to this issue, the district court first
observed that there was a question of procedural default:
“[T]his claim was not pursued by the petitioner in the
Wisconsin court of appeals or in his petition for review
before the Wisconsin Supreme Court. As such, the petitioner
could be deemed to have procedurally defaulted this claim.
However, the respondent has not raised such contention.”
Id. at 31. Consequently, based on this court’s decision in
Henderson v. Thieret, 859 F.2d 492, 498 (7th Cir. 1988) (hold-
ing that a court is not permitted to override the State’s
implicit or explicit decision to forego a waiver defense), the
district court proceeded to the merits of the claim.
The district court determined that Mr. Moore was not
entitled to relief on this ground. The district court first re-
16 No. 02-3055
jected the State’s contention that there was no Supreme
Court precedent concerning a prosecutor allegedly influenc-
ing a witness to present knowingly false testimony: “It is
well established that it is as much a prosecutor’s duty to
refrain from improper methods calculated to produce a
wrongful conviction as it is to use every legitimate means to
bring about a just one. See Berger v. United States, 295 U.S. 78,
88 (1935).” Id. at 32. Furthermore, the court observed that
there was precedent to establish that a prosecutor’s failure
to correct knowingly false testimony of a principal witness
resulted in a due process violation. See Napue v. Illinois, 360
U.S. 264, 269 (1959). However, the court continued, there
was no contention that Jones’ testimony was false. As well,
the jury was privy to the circumstances which led to Jones’
change in testimony and, therefore, could assess any
credibility issues raised by the change. Consequently, the
district court determined, no violation of due process
similar to that in Napue had occurred, and Mr. Moore was
not entitled to habeas relief based on this authority.
II
DISCUSSION
A.
We first examine whether the district court erred in de-
termining that the claims not submitted to the Supreme
Court of Wisconsin were procedurally defaulted.
“A state prisoner . . . may obtain federal habeas review of
his claim only if he has exhausted his state remedies and
avoided procedurally defaulting his claim.” Thomas v.
McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000). If a prisoner
procedurally defaulted his claim,
No. 02-3055 17
he may obtain federal habeas relief only upon a show-
ing of cause and prejudice for the default or upon a
showing that a failure to grant him relief would work a
fundamental miscarriage of justice. A fundamental
miscarriage of justice occurs when “a constitutional
violation has probably resulted in the conviction of one
who is actually innocent.”
Id. (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986);
additional internal citations omitted).
The district court held that Mr. Moore had procedurally
defaulted five of his eight claims by not including them
in his petition to the Supreme Court of Wisconsin, as re-
quired by O’Sullivan v. Boerckel, 526 U.S. 838 (1999). Mr.
Moore raises two issues with respect to this determination:
First, he argues that the rule of Boerckel should not apply to
habeas petitions arising out of Wisconsin because of the
Supreme Court of Wisconsin’s limited review; second, he
argues that, even if Boerckel does apply, he has shown
“cause” and “prejudice” to excuse his procedural default.
We shall address each of these submissions.
1.
“Section 2254(c) provides that a habeas petitioner ‘shall
not be deemed to have exhausted the remedies available in
the courts of the State . . . if he has the right under the law of
the State to raise, by any available procedure, the question
presented.” Boerckel, 526 U.S. at 844. The Court in Boerckel
explained that this requirement does not mean that the
prisoner has to “invoke any possible avenue of state court
review,” such as repetitive post-conviction petitions and
extraordinary remedies. Id. at 844. Nevertheless, it held that
“a state prisoner must present his claims to a state supreme
court in a petition for discretionary review in order to
18 No. 02-3055
satisfy the exhaustion requirement.” Id. at 839-40. The Court
limited its holding, noting that
nothing in our decision today requires the exhaustion of
any specific state remedy when a State has provided
that that remedy is unavailable. . . . The exhaustion
doctrine, in other words, turns on an inquiry into what
procedures are “available” under state law. In sum,
there is nothing in the exhaustion doctrine requiring
federal courts to ignore a state law or rule providing
that a given procedure is not available. We hold today
only that the creation of a discretionary review system
does not, without more, make review in the Illinois
Supreme Court unavailable.
Id. at 847-48.
In submitting that he is not required to present all his
contentions to the Supreme Court of Wisconsin, Mr. Moore
essentially argues that, under Wisconsin law, review is
so narrow as to be unavailable. Mr. Moore relies on Tucker
v. Department of Corrections, 301 F.3d 1281 (11th Cir. 2002).
There, the Eleventh Circuit determined that Boerckel did
not require the invocation of the certification rule of the
Supreme Court of Florida. Notably, this procedure is ex-
tremely restrictive. According to Tucker, the Supreme Court
of Florida may only review cases when there is “an actual or
potential conflict within the law of the state” to be resolved
by an appeal or when a lower court certifies a question “of
great public importance” to the Supreme Court of Florida.
Id. at 1283. Thus, a petitioner has no general right to appeal
to the Supreme Court of Florida absent either certification of
a question by an intermediate appellate court or a conflict in
state law. Because the issues presented in Tucker did not
involve a conflict in state law, the Eleventh Circuit deter-
mined that state supreme court review was effectively
unavailable to the petitioner. It was the prerogative of the
No. 02-3055 19
intermediate appellate court, not the prisoner, to certify
specific issues, and then only when the issue was of great
public importance.
The procedure in Wisconsin is far less restrictive. Wiscon-
sin Statutes § 809.62 provides that “[a] party may file with
the supreme court a petition for review of an adverse
decision of the court of appeals pursuant to s. 808.10 with-
in 30 days of the decision of the court of appeals.” Thus
the ability to petition the court is available. Mr. Moore fo-
cuses on the next sentence, which states: “Supreme court
review is a matter of judicial discretion, not of right, and
will be granted only when special and important reasons are
presented.” Wis. Stat. § 809.62. Mr. Moore argues that this
provision contrasts with the Illinois provision at issue in
Boerckel, because the Illinois statute states that “a petition for
leave to appeal to the Supreme Court from the Appellate
Court may be filed by any party . . . as a matter of right.
Whether such a petition will be granted is a matter of sound
judicial discretion.” ILCS S. Ct. Rule 315(a). We do not
believe that these provisions are significantly different for
present purposes. Both provide for a right to file a petition,
but make actual review by the state’s highest court a matter
left to that court’s discretion. This point was made in
Boerckel itself:
[A] petition for discretionary review in Illinois’ Supreme
Court is a normal, simple, and established part of the
State’s appellate review process. In the words of the
statute, state prisoners have “the right . . . to raise” their
claims through a petition for discretionary review in the
State’s highest court. § 2254(c). Granted, as Boerckel
contends, . . . he has no right to review in the Illinois
Supreme Court, but he does have a “right . . . to raise”
his claims before that court. That is all § 2254(c) re-
quires.
20 No. 02-3055
Boerckel, 526 U.S. at 845. In Wisconsin, state “Supreme Court
review is a matter of judicial discretion, not of right.”
Although the Wisconsin statute sets forth certain criteria
(including a “real and significant question of federal or state
constitutional law,” etc.), those criteria neither “control[] nor
fully measur[e] the court’s discretion,” but rather “indicate
criteria that will be considered.” Wis. Stat. § 809.62(1). Thus,
it is a discretionary system like the Illinois system, and not
like the Florida system discussed in Tucker, in which the
Supreme Court of Florida was rigidly limited to two very
well-defined types of cases. Thus Boerckel applies.
2.
Mr. Moore next submits that his procedural default ought
to be excused because he has shown “cause” and “preju-
dice” for his failure to apprise the Supreme Court of
Wisconsin of the contentions that he omitted from his peti-
tion to that court. Mr. Moore contends that there is cause
because (1) he relied upon existing Seventh Circuit prece-
dent; and (2) his counsel attempted to comply with the
Supreme Court of Wisconsin’s rules. He submits that he can
demonstrate “prejudice” because the contentions that he
omitted before the Supreme Court of Wisconsin are merito-
rious.
a.
Mr. Moore’s submission that he relied in good faith on
existing Seventh Circuit precedent is grounded in Murray v.
Carrier, 477 U.S. 478 (1986). In that case, the Supreme Court
stated that “the existence of cause for a procedural default
must ordinarily turn on whether the prisoner can show that
No. 02-3055 21
some objective factor external to the defense impeded
counsel’s efforts to comply with the State’s procedural rule,”
such as “showing that the factual or legal basis for a claim
was not reasonably available to counsel . . . or that some
interference by officials made compliance impracticable.” Id.
at 488 (internal quotation marks and citations omitted). Mr.
Moore submits that his counsel relied upon then-existing
Seventh Circuit precedent, overruled by Boerckel, that had
maintained that it was not necessary to raise an issue in a
discretionary appeal in the state judicial system in order to
preserve the matter for review in a federal habeas corpus
3
proceeding. In his view, this reliance constitutes “cause.”
We cannot accept this argument. Our precedent simply
stated that a petitioner need not include all of his claims in
his petition to a state’s highest court. This rule is hardly an
“objective factor external to the defense [that] impeded
counsel’s efforts to comply with the State’s procedural rule,”
such as “showing that the factual or legal basis for a claim
was not reasonably available to counsel.” Id. Mr. Moore’s
counsel still was able, under Wisconsin law, to bring forth
all claims in the petition; our precedent merely said that
counsel did not have to do so in order to avoid a procedural
default.
On this point, we are in agreement with our colleagues on
the United States Court of Appeals for the Eleventh Circuit.
In Smith v. Jones, 256 F.3d 1135 (11th Cir. 2001), cert. denied,
534 U.S. 1136 (2002), that court framed the question as
whether “erroneous circuit law can serve as cause to excuse
3
See Boerckel v. O’Sullivan, 135 F.3d 1194, 1198 (7th Cir. 1998)
(reviewing history of the Seventh Circuit rule), rev’d, 526 U.S. 838(1999); Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996), modified
on other grounds on denial of rehearing, 79 F.3d 578 (7th Cir 1996).
22 No. 02-3055
a failure to comply with a retrospectively applicable rule
announced in a Supreme Court decision which overrules
that circuit law.” Id. at 1142. The Eleventh Circuit deter-
mined that reliance on prior erroneous Eleventh Circuit
precedent was not “cause.” The court relied in part on the
“Supreme Court’s application of its new rule to the Boerckel
case itself,” which “requires that we apply that rule to this
and all other pending cases.” Id. at 1144 (noting that the
court in Boerckel itself applied its decision retroactively
against Boerckel, concluding that he had procedurally
defaulted). The Eleventh Circuit also noted that, under the
Carrier standard, the “subsequently overruled circuit deci-
sion . . . did not actually ‘impede’ the effort to comply with
any state court rule, but instead removed an incentive for
compliance by indicating (erroneously) that a particular
action was not necessary for federal habeas review pur-
poses.” Id. at 1145. Finally, the Eleventh Circuit stated that
a holding that reliance upon prior law is cause would
effectively make the applicability of Boerckel and some
other Supreme Court habeas decision “shift and spring
according to the particular equities of individual par-
ties’ claims of actual reliance on an old rule and of harm
from a retroactive application of the new rule.” Harper
[v. Virginia Dep’t of Taxation, 509 U.S. 86, 96 (1993)] . . .
. The Supreme Court told us in Harper that is something
not to be done.
Id. at 1145.
Although we have not directly addressed the issue before
us today, we clearly have held that Boerckel is retroactive in
application, even though prior to Boerckel, our circuit pre-
cedent stated a rule opposite to that articulated by the Su-
preme Court in that case. See Rittenhouse v. Battles, 263 F.3d
689, 697 (7th Cir. 2001); see also Smith v. Jones, 256 F.3d 1135,
No. 02-3055 23
1142 n.7 (11th Cir. 2001) (detailing the evolution of our
precedent on the issue of whether all claims need be
included in the petition to the highest state court up until
Boerckel). In Rittenhouse, we reversed the district court that
had held that there was no procedural default because
“Rittenhouse [had] filed his petition when the decisions of
this court held that he did not default issues if he left them
out of this petition for leave to appeal.” Rittenhouse, 263 F.3d
at 697 (internal quotation marks and citations omitted). The
district court had determined that it “would not default
Rittenhouse for following the then existing procedural law
of the [Seventh] Circuit.” Id. (internal quotation marks and
citations omitted). Although in Rittenhouse we did not
discuss “cause,” we gave no hint that the petitioner’s
reliance on pre-Boerckel decisions could possibly constitute
cause. See id.b.
Mr. Moore further submits that, in omitting this issue
from his petition to the Supreme Court of Wisconsin, his
counsel simply was attempting to comply with Wisconsin’s
rules. This attempt, he argues, ought to constitute “cause.”
Mr. Moore argues that his counsel failed to raise all of his
claims in the petition because he wanted to include in his
petition only those claims that met the criteria set forth in
the Wisconsin rules. In presenting this argument, Mr. Moore
relies on the dissent in Boerckel and our overturned Boerckel
decision for this argument. See Petitioner’s Br. at 41-44. We
are constrained to follow the majority holding.
3.
Even if we were able to say that Mr. Moore had made out
a case for “cause,” we would find it difficult, on the record
24 No. 02-3055
before us, to say that Mr. Moore has made a sufficient case
4
to demonstrate “prejudice.”
a.
Mr. Moore claims there was insufficient evidence to
convict him. We considered a similar claim in a habeas pe-
tition filed by one of Mr. Moore’s codefendants. See
Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001). In that in-
stance, we noted that our inquiry is whether the Wisconsin
Court of Appeals’ decision “that a rational jury could have
convicted [the defendant] based on this record resulted from
an objectively unreasonable application of Jackson [v.
Virginia, 443 U.S. 307 (1979)].” Id. at 690. As we noted in
Piaskowski, Jackson explained that “due process requires
reversal of a criminal conviction if, viewing the evidence in
the light most favorable to the prosecution, no ‘rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ ” Id. (quoting Jackson, 443 U.S.
at 319).
We determined there that the evidence was insufficient to
convict Piaskowski. However, the evidence concerning Mr.
Moore and Piaskowski is different. Gilliam testified to a
statement made by Mr. Moore that Mr. Moore had said he
helped in the beating of Monfils. There was no evidence that
Piaskowski had participated in the beating or even in the
confrontation. We stated:
4
Mr. Moore does not fully develop his arguments for prejudice.
In his own words, “[t]he claims not addressed by the district
court are neither presented nor briefed in their entirety but are
included in a prima facie form to support petitioner’s argument
that he was prejudiced by the district court’s failure to review his
barred claims on the merits.” Petitioner’s Br. at 58 n.15.
No. 02-3055 25
The most serious error the court of appeals made is that
it found—without reference to any supporting evi-
dence—that Piaskowski “kicked and beat Monfils”
during the confrontation near the bubbler. If the evi-
dence supported this assertion, we would agree that a
rational jury could have convicted Piaskowski and that
an appellate court reasonably could have affirmed his
conviction.
Id. at 693-94. Such evidence exists against Mr. Moore.
b.
Mr. Moore submits that the state appellate court commit-
ted constitutional error in admitting Kutska’s statement that
directly implicated Mr. Moore by name. See Bruton v. United
States, 391 U.S. 123 (1968) (recognizing that the admission of
a codefendant’s confession that inculpates a joint defendant
denies the defendant his Sixth Amendment right to confron-
tation); Richardson v. Marsh, 481 U.S. 200 (1987); and Lilly v.
Virginia, 527 U.S. 116 (1999). Kellner testified before the jury
that Kutska, on July 4, 1994, had described the confrontation
between Monfils and the other employees. Kellner’s testi-
mony concerning Kutska’s statement repeatedly and
directly referred to Mr. Moore by name as participating in
the confrontation. See Tr. 10/5/1995 at 3, 6-9, 15-17. Indeed,
in our prior adjudication dealing with Monfils’ murder,
although we ultimately held that there was insufficient
evidence to convict Piaskowski, we nevertheless noted in
passing “the weighty Sixth Amendment Confrontation
Clause problems inherent in the use of the testimony of
Kellner and Gilliam against Piaskowski.” Piaskowski, 256
F.3d at 692.
As the state court determined, however, Kutska testified
at trial, thus curing any Bruton error. As the Supreme Court
26 No. 02-3055
held in Nelson v. O’Neil, 402 U.S. 622 (1971), a defendant’s
confrontation clause rights are “not violated by admitting a
declarant’s out-of-court statements, as long as the declarant
is testifying as a witness and subject to full and effective
cross-examination.” Id. at 626 (internal quotation marks and
citations omitted). There is no claim here that Kutska was
not subject to full and effective cross-examination.
c.
Mr. Moore next submits that the trial court denied Mr.
Moore a fair trial by excluding the defense computer-gen-
erated videotape.
“On a petition for writ of habeas corpus, a federal court
will not review evidentiary questions unless there is a re-
sultant denial of fundamental fairness or the denial of a
specific constitutional right.” Stomner v. Kolb, 903 F.2d 1123,
1128 (7th Cir. 1990) (internal quotation marks and citations
omitted). The Supreme Court has recognized that “the
Constitution leaves to the judges who must make these
decisions ‘wide latitude’ to exclude evidence that . . . . poses
an undue risk of harassment, prejudice, [or] confusion of the
issues.” Crane v. Kentucky, 476 U.S. 683, 689 (1986) (internal
quotation marks and citations omitted). The state court
found that the computer-generated version would mislead
the jury because it did not accurately account for possible
movement by persons or for placement of objects in the
room. The fact that the video failed to account for essential
variables and thus might mislead the jury is a “valid state
justification” for having excluded the evidence. Crane, 476
U.S. at 690.
No. 02-3055 27
d.
Mr. Moore next claims that his counsel was constitution-
ally ineffective. To establish an ineffective assistance of
counsel claim, Mr. Moore must demonstrate that (1) his
“counsel’s representation fell below an objective standard of
reasonableness; and (2) that he was prejudiced in that
“counsel’s errors were so serious as to deprive the defen-
dant of a fair trial, a trial whose result is reliable.” Strickland
v. Washington, 466 U.S. 668, 687-88 (1984). Mr. Moore’s
argument that he was denied effective assistance of counsel
is based on his counsel’s failure to challenge, other than
through cross-examination, Jones’ testimony about the
changed time line. Mr. Moore argues that his counsel should
have requested a continuance, sought a mistrial, or moved
that the testimony be struck. Rather, Mr. Moore’s counsel
cross-examined Jones and showed that she repeatedly had
testified under oath to a contrary time frame. Mr. Moore’s
counsel’s decision to use cross-examination to alleviate the
new testimony did not constitute “representation [that] fell
below an objective standard of reasonableness.” Id. Strick-
land permits counsel to make strategic decisions and this
decision appears to fit well into that category.
B.
We now turn to those claims that were properly before
the district court and on which that court ruled on the
merits. Under the Antiterrorism and Effective Death Pen-
alty Act, 28 U.S.C. § 2254, (“AEDPA”), “habeas relief may
be granted if a state court’s adjudication of a matter ‘re-
sulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
28 No. 02-3055
States.’ ” Dixon v. Snyder, 266 F.3d 693, 699 (7th Cir. 2001)
(quoting 28 U.S.C. § 2254(d)(1)).
A state court decision is “contrary to” Supreme Court
precedent [1] “if the state court arrives at a conclusion
opposite to that reached by the Supreme Court on a
question of law” or [2] “if the state court confronts facts
that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at a result op-
posite to [that reached by the Supreme Court].” An
“unreasonable application” of Supreme Court precedent
occurs when “the state court identifies the correct
governing legal rule . . . but unreasonably applies it to
the facts of the particular state prisoner’s case” or “if the
state court either unreasonably extends a legal principle
from [the Court’s] precedent to a new context where it
should not apply or unreasonably refuses to extend that
principle to a new context where it should apply.”
Id. at 700 (quoting Williams v. Taylor, 529 U.S. 362, 405, 407
(2000) (footnotes and additional citations omitted)).
“We review a state court decision de novo to determine
whether it was ‘contrary to’ Supreme Court precedent;
however, we defer to reasonable state court decisions.” Id.Thus “[i]n order to issue a writ of habeas corpus, the state
court decision must be both ‘incorrect and unreasonable.’ ”
Id. (quoting Washington v. Smith, 219 F.3d 620, 628 (7th Cir.
2000)).
1.
The Wisconsin Court of Appeals held that Mr. Moore was
not entitled to a new trial based on the newly discovered
evidence of Kellner’s partial recantation of his trial testi-
No. 02-3055 29
mony concerning Kutska’s Fourth of July statement. Under
Wisconsin law, to be entitled to a new trial on the basis of
newly discovered evidence, the defendant must show that
“ ‘it is reasonably probable that a different result would be
reached at a new trial.’ ” R.2, Ex.A at 10 (quoting State v.
Terrance J.W., 550 N.W.2d 445, 447 (Wis. Ct. App. 1996)). The
Wisconsin Court of Appeals affirmed the trial court’s denial
of a new trial to Mr. Moore. It could find no evidence
indicating that the trial court clearly had erred in finding
that Kellner’s recantation did not create a reasonable
probability of a different outcome at trial. See R.2, Ex.A at
12-14. Mr. Moore claims that the failure to grant him a new
trial denied him due process of law in light of the new
evidence of Kellner’s recantation.
“As a general rule, newly discovered evidence that bears
only on the question of guilt or innocence is not reviewable
by a federal court on a motion for habeas corpus relief.”
Coogan v. McCaughtry, 958 F.2d 793, 801 (7th Cir. 1992).
Nonetheless, we have held that “in some situations newly
discovered evidence is so compelling that it would be a
violation of the fundamental fairness embodied in the Due
Process Clause not to afford a defendant a new trial in
which the evidence could be considered.” Id. (internal
quotation marks and citations omitted). We have noted that
[w]here the “newly discovered evidence” consists of
witness recantations of trial testimony or confessions by
others of the crime, most courts decline to consider it in
the absence of any showing that the prosecution know-
ingly proffered false testimony or failed to disclose
exculpatory evidence, or that petitioner’s counsel was
ineffective.
Id. In the words of the Supreme Court,
30 No. 02-3055
[c]laims of actual innocence based on newly discovered
evidence have never been held to state a ground for
federal relief absent an independent constitutional vio-
lation occurring in the underlying state criminal pro-
ceeding. . . . This rule is grounded in the principle that
federal habeas courts sit to ensure that individuals are
not imprisoned in violation of the Constitution—not to
correct errors of fact.
Herrera v. Collins, 506 U.S. 390, 400 (1993).
Under AEDPA, as noted above, Mr. Moore must show
that the adjudication “resulted in a decision that was con-
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). Mr.
Moore has not even attempted to meet this standard. His
primary contentions to the district court and to this court
are that the Wisconsin appellate court erred in finding that
the recanted testimony did not create a reasonable probabil-
ity of a different outcome at trial, see Petitioner’s Br. at 56-59,
and that the recantation would have had an enormous
impact on the trial evidence against Mr. Moore, see id. at 59-
5
62. Neither of these contentions demonstrate that the
5
Although this contention, even if accurate, would not be suf-
ficient to support habeas relief, we note that the record refutes it
and supports the Wisconsin courts’ findings that the recanted
testimony did not create a reasonable probability of a different
outcome at trial for Mr. Moore. First, other evidence was ad-
mitted at trial of Mr. Moore’s participation in the confrontation,
such as Mr. Moore’s statement to Gilliam that he repeatedly hit
Monfils. See Tr. 10/13/1995 at 170-71. Second, even under the
recanted version of Kellner’s testimony, Kellner identified three
persons: Kutska, Hirn and Mr. Moore. See Tr. 2/12/1997 at 53
(continued...)
No. 02-3055 31
Wisconsin appellate court’s affirmance under Wisconsin law
of the trial court’s denial of a new trial was contrary to, or
involved an unreasonable application of, clearly established
6
Supreme Court precedent.
5
(...continued)
(Kellner stating during his recantation that, in reality, Kutska
drew a diagram in which he “put Mike Hirn there, he put Rey
Moore there, and then he didn’t put anybody else there” and that
“[h]e just had spots” for other unidentified participants). Mr.
Moore, in his reply brief, also points to language we employed
in our opinion with respect to an appeal of his codefendant,
Piaskowski, that “Kutska’s account implicated only Hirn by name
as a participant in the beating of Monfils.” Reply Br. at 6. Yet, in
that decision, Piaskowski v. Bett, 256 F.3d 687, 690, 692 (7th Cir.
2001), we stated twice that Kellner’s recanted testimony of
Kutska’s statement only identified “himself, Hirn and Moore.” Id.
at 690 (emphasis added); see id. at 692 (“Kellner recanted a key
portion of his trial testimony . . . during postconviction proceed-
ings, claiming that Kutska did not identify any member of the
group that confronted Monfils other than himself, Hirn, and
Moore.”).
6
Apparently in an attempt to supply the needed “underlying
constitutional violation” that the district court noted was absent
from Mr. Moore’s habeas petition to the district court, see R.37 at
25, Mr. Moore also makes a claim that the investigator’s actions
in badgering Kellner to make a statement prior to trial constituted
an independent constitutional violation under Washington v.
Texas, 388 U.S. 14, 19 (1967). He claims the investigator’s actions
denied him the right to present his case. This argument is
tenuous at best. Mr. Moore has not identified at all the offensive
conduct, nor has he provided citation to the record concerning
any illegal treatment by the detective.
We note that, even if our review were not limited by the
AEDPA standard, Mr. Moore has failed to even argue to this
(continued...)
32 No. 02-3055
2.
Mr. Moore claims that the prosecution’s failure to disclose
Jones’ change in testimony in a timely manner denied him
due process of law, contrary to the Supreme Court’s deci-
sion in Brady v. Maryland, 373 U.S. 83 (1963). The Wisconsin
appellate court held that there was no Brady problem
because Jones’ change in testimony concerning the time line
of events and whether she witnessed a turnover or a paper
break was “more damaging” to Mr. Moore’s case rather
6
(...continued)
court that, with regard to Kellner’s original testimony and recan-
tation, “the prosecution knowingly proffered false testimony or
failed to discolse exculpatory evidence, or that petitioner’s coun-
sel was ineffective.” Coogan, 958 F.2d at 801. There was evidence
that Kellner felt badgered and threatened with the loss of custody
of his children by the investigating police officer into giving his
initial statement and that this situation was the cause for his
initial partially “untruthful” statement. Nevertheless, Kellner’s
recantation does not indicate that the prosecution knowingly used
false testimony (and Mr. Moore did not argue that the prosecu-
tion did use false testimony), in light of the fact that Kellner
himself testified that he never told the District Attorney or the
prosecution that the investigating police officer had threatened or
badgered him into giving the statement or that the contents of his
statement to the police were false; although he testified that he
did tell the District Attorney and the prosecution that he was
unhappy with the statement without telling them that anything
in it was false. The District Attorney and prosecution explained
that Kellner could fix any discrepancies or problems with the
statement when Kellner testified in court. See Tr. 2/12/1997 at
76-77. Kellner testified that, during the trial, he inquired of the
prosecutor when they would ask him about correcting some of
the problems with his written statement to the police; yet he
failed to inform or indicate to the prosecution that he was cur-
rently giving untruthful testimony in court. See id. at 79-80.
No. 02-3055 33
than exculpatory or “favorable,” and thus Brady did not
apply. R.2, Ex.A at 43. Additionally, the Wisconsin appellate
court noted that the defense did not lose its opportunity to
use the new statement to impeach Jones, but that “the
defense had at its disposal, and did employ, all of Jones’s
prior inconsistent statements to impeach her present
account and attack her credibility before the jury.” Id. at 44.
Moreover, the Wisconsin appellate court found that Jones’
statement was not material as defined by Brady because
“there is not a reasonable probability that had the prosecu-
tion given the information to Moore, a different result
would have occurred” because “Jones still would have been
subject to cross-examination using the same methods
actually employed by Moore’s counsel.” Id.
Under Brady v. Maryland, “ ‘the suppression by the pros-
ecution of evidence favorable to an accused . . . violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.’ ” Kyles v. Whitley, 514 U.S. 419, 433 (1995)
(quoting Brady, 373 U.S. at 87). Thus, “[t]he holding in Brady
v. Maryland requires disclosure only of evidence that is both
favorable to the accused and material either to guilt or to
punishment.” United States v. Bagley, 473 U.S. 667, 674 (1985)
(internal quotation marks omitted). Favorable evidence
under Brady, which the prosecution is required to disclose
includes both “exculpatory and impeachment evidence.”
Kyles, 514 U.S. at 433. Evidence is material if there is “a
reasonable probability that, had it not been for the impropri-
eties, the defendants would have been acquitted.” United
States v. Boyd, 55 F.3d 239, 245 (7th Cir. 1995).
Moreover,
[a]lthough the government is required to turn over
exculpatory information, a delay in doing so violates
due process only if the delay prevent(ed) the defendant
34 No. 02-3055
from receiving a fair trial. A defendant receives a fair
trial as long as disclosure is made before it is too late for
the defendant to make use of any benefits of the evi-
dence.
United States v. Perez, 870 F.2d 1222, 1228 (7th Cir. 1989)
(internal citations and quotation marks omitted). In fact,
there “is nothing in Brady . . . to require that such disclo-
sures be made before trial” because “[a]s long as ultimate
disclosure is made before it is too late for the defendant[] to
make use of any benefits of the evidence, Due Process is
satisfied.” United States v. Allain, 671 F.2d 248, 255 (7th Cir.
1982) (internal quotation marks and citations omitted).
Mr. Moore submits that the prosecution was required
under Brady to disclose that, when she testified at trial,
Connie Jones was going to change her testimony concerning
her time line of events.
Here, even assuming the material qualifies as being
“favorable,” it appears that Mr. Moore’s counsel was able to
use the prior inconsistent statements and perform an
effective cross-examination of Jones. Although the prosecu-
tion “delayed” giving the information to Mr. Moore, “de-
fense counsel was able to make good use of the impeaching
evidence in his vigorous cross-examination of the prosecu-
tion witness” and thus “the defendant’s due process rights
were not violated” because there “is nothing in Brady . . .
to require that such disclosures be made before trial.” Allain,
671 F.2d at 255. Additionally, we agree with the Wisconsin
appellate court that the evidence was not material because
there was not “a reasonable probability that, had it not been
for the improprieties, the defendants would have been
acquitted.” United States v. Boyd, 55 F.3d 239, 245 (1995). Mr.
Moore has brought forth no evidence that, had the prosecu-
tion immediately informed Mr. Moore’s counsel of the
change in Jones’ time line, the result at trial would have
No. 02-3055 35
been different. As the Wisconsin appellate court noted, the
defense counsel would have impeached Jones with her prior
statements, exactly as counsel was able to do at trial. See Tr.
10/3/1995 at 99-126.
Consequently, we hold that the Wisconsin appellate court
decision was not contrary to or an unreasonable application
of Brady or its progeny.
3.
Mr. Moore’s final argument also relates to Jones’ changed
7
testimony. Relying on Napue v. Illinois, 360 U.S. 264 (1959)
and Berger v. United States, 295 U.S. 78 (1935), Mr. Moore
argues that the prosecution’s conduct in “suggesting” that
Jones may have seen a paper break rather than a turnover
denied Mr. Moore due process. Napue stands for the propo-
sition that a prosecutor cannot “knowingly use false
evidence,” Napue, 360 U.S. at 269; Berger stands for the
proposition that the prosecution cannot engage in “pro-
nounced and persistent” misconduct and has a “duty to
refrain from improper methods calculated to produce a
wrongful conviction,” Berger, 295 U.S. at 88-89. The prosecu-
tion here did not knowingly introduce any false testimony
by allowing Jones to change her time line. Jones testified
that her reason for going to the factory and viewing the
procedures and subsequently changing her time line was
that she wanted to be as accurate as possible; moreover, she
still testified that she was “unsure” as to which procedure
7
It appears that Mr. Moore did not raise this claim before the
Wisconsin Court of Appeals or the Supreme Court of Wisconsin.
However, as noted by the district court, the respondent does not
argue (or even mention) that this claim is procedurally defaulted.
Consequently, we will address the merits of this claim.
36 No. 02-3055
she had seen. Also, the prosecution did not badger or harass
or otherwise act improperly to procure this testimony, as
was done in Berger. Consequently, we cannot conclude that
Mr. Moore is entitled to relief on this basis.
Conclusion
For the foregoing reasons, we believe that the district
court committed no reversible error in its adjudication of
this petition for relief under 28 U.S.C. § 2254. Accordingly,
the judgment of the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-29-03