452 F.3d 648 (7th Cir. 2006), 04-1602, Badelle v. Correll

Docket Nº:04-1602.
Citation:452 F.3d 648
Party Name:Robert Earl BADELLE, Petitioner-Appellant, v. Curtis CORRELL,[*] Respondent-Appellee.
Case Date:June 22, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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452 F.3d 648 (7th Cir. 2006)

Robert Earl BADELLE, Petitioner-Appellant,


Curtis CORRELL, [*] Respondent-Appellee.

No. 04-1602.

United States Court of Appeals, Seventh Circuit.

June 22, 2006

Argued June 7, 2005.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 02 C 238—Larry J. McKinney, Chief Judge.

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Sarah L. Nagy (argued), Indianapolis, IN, for Petitioner-Appellant.

James B. Martin (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Before Easterbrook, Kanne, and Sykes, Circuit Judges.

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Sykes, Circuit Judge.

Almost thirty years ago, Robert Kannapel Sr. was shot and killed while working at an Indianapolis gas station. Robert Badelle was convicted of the murder by an Indiana jury in 1979 and sentenced to sixty years' imprisonment. Badelle's conviction and sentence were affirmed on direct appeal. Badelle v. State, 449 N.E.2d 1055 (Ind. 1983) (Badelle I).

Four years after the final disposition of his direct appeal, Badelle commenced an action for postconviction relief in state court. For reasons not entirely clear from the record, this petition apparently remained pending for twelve years without substantial action by the Indiana court.1 An evidentiary hearing was finally convened in the fall of 1999; it lasted four days and 44 witnesses testified. The postconviction court denied relief, and the denial was upheld on appeal. Badelle v. State, 754 N.E.2d 510 (Ind. App. 2001) (Badelle II). The Indiana Supreme Court declined review.

Badelle then filed a petition for a writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254 alleging numerous errors in the state court proceedings. The district court denied relief, and this court granted in part Badelle's request for a certificate of appealability. See 28 U.S.C. § 2253. Badelle argues on appeal that he is entitled to habeas relief because the prosecution withheld evidence contrary to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and because his counsel was ineffective for failing to investigate and present the testimony of additional witnesses and for not sufficiently objecting to the admissibility of eyewitness identifications. We affirm.

I. Background

On the snowy afternoon of December 5, 1977, Robert Kannapel Sr. and his son Robert Jr. were working together at a gas station in Indianapolis, Indiana. Robert Sr. was primarily working in the garage repairing automobiles while his son manned the gas pumps and otherwise dealt with customers. Sometime between 3:00 p.m. and 3:30 p.m., a man unknown to the Kannapels walked into the station's front office area to escape the heavy snowfall and wait for a ride, which the Kannapels permitted him to do for the ensuing three hours.

At approximately 4 p.m., Edwin Kennedy pulled his car into the service station and it stalled in front of the gas pumps. Kennedy, with the assistance of Robert Kannapel Sr., Robert Kannapel Jr., and the loitering stranger, pushed the inoperable vehicle off the premises and onto the city street. Shortly after Kennedy's car had been moved, Floyd Piles, the owner of the gas station, stopped in to attend to some business for approximately ten minutes. He observed the stranger standing in the front office and exchanged greetings with him.

At approximately 5 p.m., a man named Joe Harris entered the station to visit with his friend Robert Kannapel Sr. Harris would remain at the station for the next hour. The stranger asked Harris for a cigarette, which Harris provided. Shortly after 6 p.m., the younger Robert Kannapel left the station for the evening.

At this point the stranger asked Harris and Robert Kannapel Sr. if they would call him a cab. As Harris and Kannapel

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searched the telephone book for the appropriate phone number, a man named John Hoffman entered the station and asked to use the telephone. Hoffman saw the stranger standing in the lobby and said hello. Kannapel told Hoffman there was no telephone available for public use and Hoffman promptly left the station.

Kannapel and Harris found a telephone number for a taxi, and Kannapel walked into a room at the rear of the station to place the call. The stranger followed Kannapel into the back room while Harris remained in the front lobby. Harris then heard the sound of a scuffle followed by a gunshot and Kannapel's plea for an ambulance. As Harris began moving toward the back room to investigate, the stranger emerged holding a silver handgun with a long barrel. He threatened to shoot Harris if he went any further. Harris then ran from the station and called police from his nearby apartment. The shooter left the station and was observed by a man named Vincent Carrol who had just pulled his vehicle up to the gasoline pumps. Carrol observed that the man was holding a "long-barreled, silver-colored" handgun as he left the gas station. Help arrived too late to save Kannapel, who died from a gunshot wound.

The Indianapolis Police Department put Detective Dennis Morgan in charge of the investigation, assisted by Detective James Highbaugh. A composite sketch of the killer was created, and the sketch was published in an Indianapolis newspaper. Three and a half months after the murder, the police received a tip that Badelle looked very much like the sketch, and he was arrested on a probation violation.

The case against Badelle was based primarily on positive identifications made at lineups and in court by Robert Kannapel Jr. and Joe Harris, the only two living witnesses who had spent any significant amount of time observing the murderer hanging around the gas station on the day of the murder. Robert Kannapel Jr. identified Badelle as the man who had been loitering in the gas station the afternoon and evening of the murder. Joe Harris likewise identified Badelle as the man who shot and killed Robert Kannapel Sr. and threatened Harris with a gun following the shooting. Floyd Piles, Vincent Carrol, and John Hoffman had shorter looks at the suspect and could not identify Badelle. Edwin Kennedy testified that Badelle was not the man who helped him push his stalled vehicle off the gas station lot before the murder took place.

In addition to the two eyewitness identifications, a man named Charles ("Dick") Reedus testified that he had known Badelle for eight to ten years and that Badelle had been in Reedus's place of business "in the fall of 1977"—just months prior to the murder—brandishing a shiny, chrome-colored handgun. Reedus also testified that Badelle had on that occasion fired a shot into the wall (perhaps accidentally), and that police subsequently searched for, but did not find, any bullet or bullet hole in the wall.

Additional facts and procedural history will be discussed where appropriate.2

II. Discussion

Prior to enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), a state prisoner seeking a writ of habeas corpus in federal court received plenary review of his federal constitutional claims. Gregory-Bey v. Hanks, 332 F.3d 1036, 1043 (7th Cir. 2003); Agnew v. Leibach, 250 F.3d 1123, 1129 (7th Cir. 2001).

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This changed in 1996 with passage of AEDPA. Habeas petitions (such as this one) filed after the enactment of AEDPA are subject to a standard of review that is far more deferential to the decisions of state courts and require a different showing on the part of the prisoner than under pre-AEDPA habeas law. "Under the new section 2254(d), a federal court reviews these [state court] determinations for reasonableness only, whereas the prior law provided for plenary review of these claims." Abrams v. Barnett, 121 F.3d 1036, 1037 (7th Cir. 1997).

None of this is new, but Badelle has inexplicably presented his claims as though this were a pre-AEDPA case. His failure to adequately comprehend the showing required of him under post-AEDPA standards complicates our evaluation of his claims. Review is further hampered by the scattershot nature of Badelle's arguments; the factual and legal underpinnings of his claims are presented in a disjointed fashion that makes them difficult to understand. Finally, we note that the vast majority of Badelle's briefing in this court consists of a verbatim replication of the brief he submitted to the Indiana Court of Appeals on his appeal of the denial of postconviction relief. This cut-and-paste approach falls far short of the showing required for habeas relief under AEDPA.

Badelle is entitled to habeas relief only if the decision of the Indiana Court of Appeals denying his petition for postconviction relief was (1) contrary to or involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 367, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006) ("The relevant decision for purposes of our assessment is the decision of the last state court to rule on the merits of the petitioner's claim."). A state court decision is "contrary to" federal law if it is "substantially different from the relevant precedent of [the Supreme Court]." Boss v. Pierce, 263 F.3d 734, 739 (7th Cir. 2001) (quoting Williams, 529 U.S. at 405, 120 S.Ct. 1495). This occurs when the state court applies a rule that contradicts the governing law set forth by the Supreme Court or, on facts materially indistinguishable from the facts of an applicable Supreme Court precedent, reaches...

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