Ben-Yisrayl v. Buss

• Decision Date: 28 August 2008
• Docket Number: No. 07-2151.,No. 07-2281.,07-2151.,07-2281.
• Citation: 540 F.3d 542
• Parties: Obadyah BEN-YISRAYL, formerly known as Christopher Peterson, Petitioner-Appellant, Cross-Appellee, v. Edwin G. BUSS, Superintendent, Respondent-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

540 F.3d 542

Obadyah BEN-YISRAYL, formerly known as Christopher Peterson, Petitioner-Appellant, Cross-Appellee, v. Edwin G. BUSS, Superintendent, Respondent-Appellee, Cross-Appellant.

No. 07-2151.

No. 07-2281.

United States Court of Appeals, Seventh Circuit.

Argued January 11, 2008.

Decided August 28, 2008.

John N. Gallo, Kelly Huggins (argued), Sidley Austin, Chicago, IL, for Petitioner-Appellant, Cross-Appellee.

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

Before BAUER, POSNER and EVANS, Circuit Judges.

BAUER, Circuit Judge.

Obadyah Ben-Yisrayl, formerly known as Christopher Peterson, was convicted of two counts of murder by an Indiana jury. After extensive proceedings through the Indiana and federal courts, he was ultimately sentenced to two consecutive sixty-year terms of imprisonment. He filed a petition for a writ of habeas corpus, claiming various constitutional violations. The district court denied the petition in part and granted the petition in part. We reverse the district court's grant of the petition and affirm the denial.

I. BACKGROUND

On the afternoon of December 19, 1990, Ilija (Eli) and George Balovski were found dead inside their tailor shop in Gary, Indiana. Both died of shotguns wounds to the head.

Shortly after the Balovski killings, Antwion McGee, a friend of Ben-Yisrayl's, met with Ben-Yisrayl, who told McGee that he "got the guys at the tailor shop" and then described the murders in detail. McGee passed this information on to the police. The police then went to Ben-Yisrayl's home and obtained consent to search the home from petitioner's mother, who lived with him. After searching the home, the police discovered a shotgun in Ben-Yisrayl's closet, which tests later confirmed had fired a spent shell casing found at the scene of the Balovski murders. The police took Ben-Yisrayl into custody, whereupon he confessed to shooting the Balovskis, giving a detailed account of the murders. Ben-Yisrayl was further questioned about a series of other murders that had occurred in the area surrounding Gary which, because of the weapon involved, were called in media reports the "shotgun killings." Ben-Yisrayl admitted to being the shooter in all seven of these other shootings.

Ben-Yisrayl was tried for the seven shootings over a span of four trials. At each trial, the prosecution relied on evidence that (1) the shotgun used in the shootings was found in Ben-Yisrayl's bedroom; and (2) Ben-Yisrayl confessed to the shootings. Ben-Yisrayl presented evidence that a "light-skinned man" matching the description of a composite sketch obtained by the police was seen in the vicinity of each of the crimes (Ben-Yisrayl describes himself as a "dark-skinned black man"). In the first two trials, Ben-Yisrayl was acquitted. He was convicted in the third trial of two counts of murder (the "Porter County convictions"), but this court held that the prosecutor's improper closing statements rendered the convictions constitutionally invalid. Ben-Yisrayl v. Davis, 431 F.3d 1043 (7th Cir.2005). He has yet to be retried for these shootings. It is the fourth trial, in which Ben-Yisrayl was convicted, that gave rise to the appeal before us today.

On May 4, 1992, a jury convicted Ben-Yisrayl of murdering the Balovski brothers. On June 5, 1992, the Indiana trial judge, over the jury's recommendation, imposed the death penalty. Ben-Yisrayl's conviction and sentence were affirmed by the Indiana Supreme Court. Peterson v. State, 674 N.E.2d 528 (Ind.1996). He filed a petition for post-conviction relief, which the trial court denied; the Indiana Supreme Court affirmed the denial. Ben-Yisrayl v. State, 729 N.E.2d 102 (Ind. 2000). The state court judgment against Ben-Yisrayl became final on December 14, 2000.

Next he turned to the federal court, filing a motion for writ of habeas corpus challenging his conviction and sentence. That petition was denied. Ben-Yisrayl v. Davis, 245 F.Supp.2d 960 (N.D.Ind.2002). While his appeal from that decision was pending, the Indiana Supreme Court issued Saylor v. Indiana, 808 N.E.2d 646 (Ind.2004), ruling that a defendant could not be sentenced to death over a jury's recommendation to the contrary. Ben-Yisrayl then filed a new petition for postconviction relief, which the Indiana Supreme Court granted, vacating his death sentence. We then dismissed Ben-Yisrayl's appeal before this court on October 29, 2004 under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) for lack of jurisdiction, finding that, because Ben-Yisrayl had not been resentenced by an Indiana court, the judgment had not become final. Ben-Yisrayl v. Davis, 114 Fed.Appx. 760 (7th Cir.2004) (unpublished order). We noted that Ben-Yisrayl could refile his habeas petition after resentencing and after he exhausted his state court remedies.

On December 13, 2004, the Indiana trial court imposed two consecutive sixty-year terms. The Indiana Court of Appeals affirmed the sentence. After his petition for rehearing and petition to transfer jurisdiction to the Indiana Supreme Court were both denied, Ben-Yisrayl filed the habeas petition at bar.

The district court entered an Amended Memorandum Opinion and Order on May 3, 2007, granting the writ with regard to the two sixty-year terms of incarceration based on the court's conclusion that the invalid Porter County convictions played too great a role in the imposition of the sentence, but denying the remainder of the petition, relying on the reasoning in the first denial of habeas in 2002. This timely appeal followed.

II. DISCUSSION

On appeal, Ben-Yisrayl argues that the district court erred by (1) finding that the Indiana Supreme Court had not unreasonably applied Strickland v. Washington; (2) rejecting Ben-Yisrayl's challenge to the admission of his confession; and (3) rejecting Ben-Yisrayl's Brady claim regarding a failure to disclose exculpatory evidence. On cross-appeal, the State argues that the district court had no authority to grant habeas relief with respect to Ben-Yisrayl's sentence. We review each issue in turn.

We review de novo the district court's denial of a habeas petition. Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), we may grant habeas relief only if the state court's "decision was contrary to, or involved an unreasonable application of, Supreme Court precedent," or "resulted in a decision that was 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), (2); Williams v. Taylor, 529 U.S. 362, 376, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the "contrary to" clause of § 2254(d)(1), the habeas petitioner must show that the state court's decision "applie[d] a rule that contradicts the governing law set forth in [Supreme Court] cases" or if the court "decides a case differently than [the Supreme Court] has done on a set of materially indistinguishable facts." Calloway v. Montgomery, 512 F.3d 940, 943 (7th Cir.2008) (citing Williams, 529 U.S. at 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 and Bell v. Cone, 535 U.S. 685, 686, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002)). Under the "unreasonable application" clause, a petitioner must show that the state court's decision unreasonably extended a rule to a context where it should not have applied or unreasonably refused to extend a rule to a context where it should have applied. Virsnieks, 521 F.3d at 713 (citing Jackson v. Miller, 260 F.3d 769, 774 (7th Cir.2001)); see also Wright v. Van Patten, ___ U.S. ___, 128 S.Ct. 743, 746-47, 169 L.Ed.2d 583 (2008) (emphasizing that a state court's application of clearly established law is acceptable, even if it is likely incorrect, so long as it is reasonable). We presume state factual findings to be correct, unless the petitioner rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005); Wiggins v. Smith, 539 U.S. 510, 528, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Barrow v. Uchtman, 398 F.3d 597, 603 (7th Cir.2005). The presumption of correctness also applies to factual findings made by a state court of review based on the trial record. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); Rodriguez v. Peters, 63 F.3d 546, 554 (7th Cir. 1995); see Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir.2007).

As a general matter, under post-AEDPA habeas law, we defer to a great extent to the decisions of the state courts, and review these decisions for reasonableness only. Badelle v. Correll, 452 F.3d 648, 654 (7th Cir.2006).

A. Ineffective Assistance of Counsel

Ben-Yisrayl argues that his Sixth Amendment right to counsel was violated by his trial counsel's negligent failure to call Patrick Fleming to testify.¹ He argues that, in ruling against him, the Indiana Supreme Court unreasonably applied Strickland and unreasonably determined the facts in doing so.

As part of his post-conviction petition, Ben-Yisrayl submitted the affidavit of Fleming, who stated that he was in Eli Balovski's tailor shop on the afternoon of the murders, and that as he was leaving the shop at 4:10 or 4:20 p.m., he noticed a car on the opposite side of the street from the tailor shop with a person in the driver's seat. Fleming got in his own car, made a U-turn, and drove past the car. He noticed that the man was "white" with dark hair and dark eyes, and when he drove past, the man reached between his legs and "made sure that I couldn't see what he had there." Fleming thought the man had a gun. He also thought that the man in the car was one of the men in the composite sketches published in area newspapers relating to the shotgun shootings. This information was available to Ben-Yisrayl's counsel at trial.²

Ben-Yisrayl's argument before the Indiana Supreme Court rested primarily on a comparison...