782 F.3d 882 (7th Cir. 2015), 13-3076, Makiel v. Butler

Docket Nº:13-3076, 13-3777
Citation:782 F.3d 882
Opinion Judge:Hamilton, Circuit Judge.
Party Name:DANIEL MAKIEL, Petitioner-Appellant, v. KIM BUTLER, Warden, Respondent-Appellee
Attorney:For DANIEL MAKIEL, Petitioner - Appellant (13-3076, 13-3777): Kara Kapp, Attorney, Barry Levenstam, Attorney, JENNER & BLOCK LLP, Chicago, IL. For KIM BUTLER, Respondent - Appellee (13-3076, 13-3777): Lindsay Beyer Payne, Attorney, Joshua M. Schneider, Attorney, OFFICE OF THE ATTORNEY GENERAL, Ch...
Judge Panel:Before WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges.
Case Date:April 10, 2015
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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782 F.3d 882 (7th Cir. 2015)

DANIEL MAKIEL, Petitioner-Appellant,


KIM BUTLER, Warden, Respondent-Appellee

Nos. 13-3076, 13-3777

United States Court of Appeals, Seventh Circuit

April 10, 2015

Argued: November 10, 2014.

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Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CV 9644--James B. Zagel, Judge.

For DANIEL MAKIEL, Petitioner - Appellant (13-3076, 13-3777): Kara Kapp, Attorney, Barry Levenstam, Attorney, JENNER & BLOCK LLP, Chicago, IL.

For KIM BUTLER, Respondent - Appellee (13-3076, 13-3777): Lindsay Beyer Payne, Attorney, Joshua M. Schneider, Attorney, OFFICE OF THE ATTORNEY GENERAL, Chicago, IL.

DANIEL MAKIEL, Petitioner - Appellant (13-3777), Pro se, Menard, IL.

Before WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges.


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Hamilton, Circuit Judge.

Petitioner Daniel Makiel was convicted in an Illinois state court for the murder of Katherine Hoch and the armed robbery of a gas station where she worked. He appeals from the district court's denial of his petition for a writ of habeas corpus and raises two claims on appeal. First, he argues that his appellate counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to challenge two evidentiary rulings during his direct appeal. Second, he contends that his constitutional right to compulsory process was violated when the trial court prevented a witness from testifying on his behalf.

We affirm. Although there were some problems in the state courts' handling of Makiel's case, he is not entitled to federal habeas corpus relief. The state courts did not apply federal law unreasonably in concluding that Makiel's counsel was not ineffective in selecting the issues to pursue on appeal. The evidence shows that his counsel selected the issues with care. One issue she raised drew a remand, and although the other two issues did not prevail, they both drew a dissenting opinion. The first issue Makiel complains she did not raise-an evidentiary ruling preventing the defense from impeaching prosecution witness Allen Martin with a pending forgery charge--was not so clearly stronger than the issues she did raise that the state courts were required to find ineffective assistance of counsel under Strickland. The second issue she did not raise--the trial court's exclusion of Brian Spodach's testimony about the reputations of prosecution witnesses Martin and Shane Miller--was not clearly stronger than the issues she raised.

The state court also did not act unreasonably when it found no violation of Makiel's constitutional right to compulsory process. The trial court excluded the testimony of eleven-year-old Tim Anderson, who would have blamed another young boy (not the adult Makiel) for the murder. This proffered testimony was uncorroborated

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at the time of trial, but its exclusion was an error. That was the basis for the state appellate court's remand in the original appeal for an evidentiary hearing. See People v. Makiel, 263 Ill.App.3d 54, 635 N.E.2d 941, 200 Ill.Dec. 602 (Ill. App. 1994), from which we draw most facts in this opinion. By the time the state courts decided the constitutional issue, however, Anderson had completely disavowed his proffered trial testimony, and there was no reason to think his proffered trial testimony would have been probative or reliable. Under the circumstances, the state courts' denial of relief was not an unreasonable application of U.S. Supreme Court precedent.

I. Factual and Procedural History

The complex history of this case spans more than twenty-five years. Several of our ultimate conclusions depend on evaluating the record as a whole, so we must describe in some detail each stage of Makiel's process through the state and federal courts.

A. The Murder of Katherine Hoch

Katherine Hoch managed a Mobil gas station in Calumet City, Illinois. On the night of October 19, 1988, the gas station was robbed. She was taken into a back room and shot in the back of the head. The State initially charged three men with the murder and armed robbery: Samuel Ilich, Todd Hlinko, and petitioner Daniel Makiel. Ilich went to trial and was acquitted. After Ilich's acquittal, Hlinko reached a plea agreement with the State. He agreed to testify against Makiel in exchange for dropping the murder and armed robbery charges against him. Makiel was tried, convicted, and sentenced to life in prison. Makiel maintains his innocence.

B. Pretrial Proceedings

On March 2, 1989, several months after the murder and robbery, police arrested Todd Hlinko on a drug offense, which also violated his probation from an earlier aggravated battery conviction. While in custody that day, Hlinko signed a statement saying that on October 19, 1988, Makiel went into the Mobil gas station alone, returned, and jumped back into the car, and that Makiel, Hlinko, and Ilich then drove to Makiel's house. According to the statement, Hlinko saw a purse at Makiel's house that night before they went to sleep.

On March 16, 1989, the police arrested Hlinko again, this time for the murder and armed robbery at the gas station. After questioning by the police, Hlinko signed a second statement that was inconsistent with his first statement. In the March 16 statement, he again placed himself, Ilich, and Makiel at the gas station, but this time he told police that he stayed in the car while Makiel and Ilich went inside. He also told police that after Makiel returned to the car, he saw Makiel throw something out of the window but never saw a gun.

On April 7, 1989, Makiel was indicted for the murder and armed robbery at the gas station. At the time, he was already in the custody of the Indiana Department of Correction on an attempted murder conviction. Indiana held an extradition hearing where Makiel was represented by counsel. The extradition request was granted, and Illinois authorities transported him from Indiana to Illinois on October 20, 1989.

During the trip, an Illinois prosecutor questioned him about the crime. Makiel answered some of the questions and gave an arguably incriminating statement. Before trial, he moved to suppress this statement. The state trial court denied his motion.

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C. Trial

Makiel went to trial in February 1991.1 No physical evidence directly linked him to the crime scene. The prosecution's case rested primarily on witness testimony, especially from Hlinko, who reached a plea agreement with the State in October 1990 in exchange for testifying against Makiel.

1. Hlinko's Plea Agreement

Hlinko's plea agreement in the murder case was unusually generous. Hlinko first pled guilty to the probation violation based on the sale of narcotics that led to his first arrest on March 2, 1989. Without any plea agreement on that charge, he was sentenced to five years in prison. His plea to the probation violation admitted the sale of narcotics, and he faced another possible fifteen years in prison on that charge.

When the State first approached Hlinko to offer a reduced prison sentence in exchange for testifying against Makiel, he refused. Ilich was then acquitted of the murder and armed robbery in a separate trial. After Ilich's acquittal, the State went back to Hlinko and made a much more generous offer: in exchange for his testimony against Makiel, Hlinko would receive five years in prison on the pending narcotics charge, which would run concurrently with the five-year term on the probation violation, plus the State would drop the murder and armed robbery charges. In effect, he would face no additional punishment on the narcotics charge or for the murder and armed robbery. This time, Hlinko accepted the deal.

2. Hlinko's Testimony

At trial, Hlinko testified that on October 19, 1988, he, Makiel, and Ilich were driving a blue Oldsmobile Cutlass 442 belonging to a friend, John Miller, around Calumet City. In later testimony, John Miller said that he had loaned the car to Makiel and Hlinko and noticed from its condition the next day that it had been driven the night before.

According to Hlinko, at about 11:00 p.m. Makiel said he " would stop and get some money." They pulled up to the Mobil gas station and parked just off the road. They waited in the car for a few minutes until the two customers in the gas station had left. Then they parked the Cutlass next to a white van, which belonged to Katherine Hoch.

Hlinko testified that Makiel got out of the car, and--contrary to his earlier statements to police--that Hlinko himself followed Makiel into the gas station. As they entered, Hlinko saw Hoch walking from the counter toward a back room. Makiel told Hlinko to " watch out," pointed a gun at Hoch, grabbed her arm, and led her to the back room. As he acted as a lookout, Hlinko heard Makiel demand money from Hoch and heard noises like drawers slamming. Then he heard a single gunshot. Makiel left the back room holding the gun and a purse and went behind the counter to the cash register. Makiel picked up an envelope from the register, took two packs of cigarettes, and handed the cigarettes to Hlinko. Hlinko did not see anyone else in the gas station at the time. He estimated

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that they had been inside the store for only a few minutes.

Hlinko and Makiel returned to the car, and Makiel put the purse under the driver's seat. Once inside the car, Hlinko repeatedly asked Makiel, " What the hell was going on?" Makiel told Hlinko that " something went wrong" inside the station but not to worry about it.


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