Ronald Ruhl v. Marcus Hardy , 743 F.3d 1083 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2515
RONALD RUHL,
Petitioner-Appellant,
v.
MARCUS HARDY,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 08-cv-4980 — James F. Holderman, Judge.
ARGUED JANUARY 9, 2014 — DECIDED FEBRUARY 21, 2014
Before MANION and SYKES, Circuit Judges, and GRIESBACH,
District Judge.*
GRIESBACH, District Judge. Ronald Ruhl appeals the district
court’s denial of his petition for a writ of habeas corpus. Ruhl
and Raymond Serio were convicted of the first-degree murder
of Richard Neubauer in separate trials in Lake County, Illinois.
*
Of the Eastern District of Wisconsin, sitting by designation.
2 No. 12-2515
After exhausting his state court remedies, Ruhl filed a petition
for federal relief under 28 U.S.C. § 2254, alleging that his
conviction was the result of violations of various constitutional
rights. The district court issued a thorough decision in which
it denied his petition and declined to issue a certificate of
appealability. We granted a certificate as to Ruhl’s claim of
ineffective assistance of counsel and now affirm.
I.
On the morning of January 6, 2002, Richard Neubauer’s
body was found in his mother’s car, which was parked at the
entrance to the Bristol Renaissance Faire, just over the
Illinois/Wisconsin border in Kenosha County, Wisconsin. A
medical examiner concluded that Neubauer died from two
gunshot wounds to the head and one to the neck. The
investigation soon focused on the Whip Lash bar in Antioch,
Illinois, which was operated by Serio and frequented by Ruhl,
Serio’s close friend and companion. Neubauer had planned to
pick up Denise Schubat, his girlfriend who worked as a
bartender there, after she finished her shift at around 2:30 a.m.
that morning. He left his parents’ home at approximately 1:45
a.m. and never returned.
Neubauer was the father of Schubat’s daughter, but the
couple had separated sometime after the child’s birth in
August 1998. Neubauer had continued to visit his daughter,
however, and sometime in November 2001, he began seeing
Schubat again. After they resumed their relationship,
Neubauer often picked Schubat up at the end of her shift.
When first questioned by police, Schubat denied any
knowledge of the murder and claimed that Neubauer had
No. 12-2515 3
failed to show up at the end of her shift. Schubat claimed she
had driven her own car directly home and called Neubauer’s
cell phone at approximately 2:43 a.m. She left a message stating
in effect that she assumed he had stayed in the city, that she
had driven herself home, and that she would talk to him later.
When Neubauer’s mother called her later that morning
inquiring about her son’s whereabouts, Schubat told her that
she had not heard from him. She told the police the same thing.
Three months later, however, on April 4, 2002, Schubat’s story
changed dramatically after police confronted her with evidence
that she was present at the time Neubauer was shot. Schubat
then gave a statement implicating Ruhl and Serio. Shortly
thereafter, Ruhl and Serio were both charged with Neubauer’s
murder, and Schubat became a key witness against them in
their separate trials.
According to Schubat, Serio had been pursuing a sexual
relationship with her since shortly after he hired her to tend
bar at the Whip Lash in August 2001. On one occasion in late
October 2001, before she had resumed her relationship with
Neubauer, Schubat had gone with Serio to a motel where they
used cocaine and had sexual relations. When Serio invited her
to his motel room the next day, Schubat told him the previous
night was a mistake. According to Schubat, Serio was unhappy
with her decision and continued to pursue her even after she
resumed her relationship with Neubauer.
Ruhl was Serio’s friend. Schubat testified that the two were
always together, and Ruhl would frequently drive Serio to
work and run errands for him. Ruhl was also doing some
remodeling at the bar and owed Serio a substantial amount of
money. Schubat testified that the two used “direct-connect”
4 No. 12-2515
Nextel cellular telephones that had a two-way radio feature
which they used to communicate with each other every night.
Schubat testified that while at work about a week before
Neubauer’s murder, she overheard Serio say to Ruhl that they
were going to kill Neubauer. Ruhl responded that he would go
along with it as long as Schubat would not get mad at him.
Schubat testified that they were both laughing at the time, and
she thought they were joking. She told them they were crazy
and went back to work.
Over the following week, Serio continued to press Schubat
to go out with him. On each occasion, Schubat refused,
explaining that she was with Neubauer. In fact, Schubat
testified that she spent almost every night during the week
with Neubauer at his parents’ house. On the evening of
January 4, 2002, Serio again asked Schubat to go out with him
after work, and Schubat again refused, stating she was going
out with Neubauer. Serio then asked her to call him when she
got home so he knew she was safe and not with Neubauer
anymore. When Schubat asked Serio why he wanted to know
that, Serio said he was going to kill Neubauer. Schubat testified
that again she did not take Serio seriously because he was
laughing and joking at the time he said it.
When Schubat arrived at work the following night, Serio
asked her why she did not call him when she got home earlier
that day. Schubat told him she was busy, and Serio stormed
away. He later returned and began questioning her about
where she was and what she and Neubauer were doing.
Schubat responded that they had gone to a friend’s house and
arrived home late, but it really was none of his concern. Serio
No. 12-2515 5
made a comment about getting rid of Neubauer so Schubat
could be with him, to which Schubat responded that he was
crazy and they would never be together.
At approximately 10:00 p.m., Serio met with Ruhl in the
back kitchen area of the bar where they remained talking for
between 30 and 40 minutes. When Schubat poked her head in
at one point, the two stopped talking. Serio later returned to
the bar, and Ruhl left by another door that led to the parking
lot. Later that evening Schubat also noticed that a handgun she
had previously seen in one of the drawers behind the bar was
missing.
After the bar closed at 2:00 a.m., Schubat began cleaning up.
Neubauer previously told her that he planned to go to a party
at a friend’s house that evening, but would pick her up after
her shift ended and take her back to the party with him.
Schubat had driven her own car to work so that if his plans
changed she could drive directly home. As she was cleaning
up, Schubat heard Serio talking with Ruhl over their Nextel
phones with the two-way radio feature about a car in the
parking lot that fit the description of Neubauer’s mother’s car.
Schubat told Serio that must be Neubauer and that she had to
go. At that point, Serio told Ruhl to go up to the car window
and shoot Neubauer. Again Schubat did not believe Serio was
serious. She finished counting her tips, grabbed her coat, and
started to leave. Serio pushed her behind the bar and told her
she wasn’t going anywhere. He then instructed Ruhl to go
knock on the window and pull the trigger. Schubat testified
she heard Ruhl ask, “Are you sure?” and Serio screamed into
the phone, “I want to hear a gunshot.” Thirty seconds later,
Schubat heard a gunshot. She jumped over the bar and ran to
6 No. 12-2515
the window. When she looked out, she saw Neubauer sitting
in his car slumped over.
Schubat testified that at that point she collapsed. Serio
picked her up, sat her on the pool table, and began shaking her
and telling her to calm down and relax. He told her she
couldn’t be mad at him because he didn’t do it. Shortly
thereafter, she heard pounding on the door and glass breaking.
Serio then opened the door, and Ruhl came in. After Ruhl
entered, Schubat saw the gun she had previously noticed
missing lying on the bar, and Ruhl began pacing back and
forth. Ruhl then told Serio that they had to hurry and get rid of
the body. Serio told Schubat to go home and make sure no one
knows that Neubauer came to pick her up. According to
Schubat, Serio threatened to harm her and her daughter if she
told anyone what happened. Serio also instructed Schubat to
call Neubauer’s cell phone to check in once she arrived at her
home. Schubat then proceeded to her car with Serio watching
her. She immediately drove to her home and, as instructed,
called Neubauer’s cell phone and left the message described
above when she arrived.
After Neubauer’s body was discovered, and in the days
and weeks that followed, Schubat was questioned by police
and repeatedly told them that Neubauer had never arrived at
the Whip Lash after closing on January 6, 2002. She testified
that she continued to lie to police because she was terrified of
Serio and Ruhl and thought they would harm her daughter if
she told the truth. She said she had enjoyed a close relationship
with Neubauer at the time he was murdered and claimed the
first time she realized Serio was serious about killing him was
when he told Ruhl to shoot him just before he did so.
No. 12-2515 7
The State presented two other witnesses that tended to
corroborate Schubat’s testimony concerning Ruhl’s
involvement. Kristen Koets, Serio’s ex-girlfriend, testified that
Serio had directed her to obtain a firearm owner’s
identification card in 2001, even though Koets did not own a
firearm and knew nothing about them. Shortly before
Christmas, Serio came to Koets’ house with Ruhl and had
Koets drive the two of them to a sporting goods store. Serio
went into the store with Koets, while Ruhl remained in the car,
and Serio directed Koets to buy a box of bullets using her
firearms identification card. When they returned to the car,
Serio told Koets to give the bullets to Ruhl. She then dropped
the two of them off at a hotel. Koets also corroborated
Schubat’s testimony that Serio and Ruhl were frequently
together.
In addition, Waukegan police officer Keith Lamanna
testified that he stopped a vehicle Serio was driving at 5:17
a.m. on the morning of January 6, 2002, at an intersection in
Waukegan, Illinois. Ruhl was his only passenger. Officer
Lamanna became suspicious after they told him that they were
coming from the north around Round Lake because Round
Lake was due west. When asked where they were going, they
said they were looking for a restaurant. During a consensual
search of the vehicle, Officer Lamanna recovered an open
bottle of liquor from the back seat. He confiscated the bottle
and poured out its contents, but did not issue any citation or
write any report about the incident.
The State also offered evidence intended to show that
Schubat could not have driven from the Whip Lash to the
Renaissance Faire, where Neubauer’s body was found, and
8 No. 12-2515
then to her residence in time to make the call to Neubauer’s
cell phone at 2:43 a.m. on the morning of the murder. Leaving
the Whip Lash at 2:20 a.m. (the earliest Neubauer typically
arrived to pick Schubat up was 2:15 a.m.), a detective who
drove the route without making any stops along the way
testified that he arrived at Schubat’s house at 2:59 a.m. Based
on this evidence, the State argued Schubat could not have
assisted Serio in disposing of Neubauer’s body.
Because Schubat’s testimony was the only evidence directly
linking Ruhl to the crime, she was the obvious target of the
defense. Ruhl’s trial counsel cross-examined Schubat at length
and argued that she, not Ruhl, was Serio’s accomplice. The
defense theory of the case was that Schubat helped Serio kill
Neubauer and drove Neubauer’s car to the fairgrounds. Ruhl’s
counsel attempted to establish motive through the testimony
of Sandra Morton, Schubat’s friend, who claimed that Schubat
told her that Neubauer had threatened to take Schubat’s child
in December 2001. The State countered this evidence with
testimony from Schubat and Neubauer’s family that the two
were happy together after they resumed their relationship, and
Neubauer had no intention to seek custody of his daughter.
The jury found Ruhl guilty of first-degree murder on February
6, 2003, and he was sentenced to 50 years imprisonment.
Ruhl retained new counsel following his sentencing. On
direct appeal to the Illinois Appellate Court, he argued, among
other claims, that trial counsel provided ineffective assistance.
The appellate court affirmed his conviction, and the Illinois
Supreme Court denied his petition for leave to appeal on May
25, 2005. Ruhl filed for post-conviction relief in the circuit court
on November 22, 2005, asserting some seventeen ways in
No. 12-2515 9
which trial counsel provided deficient representation. The
circuit court and appellate court denied relief, and the Illinois
Supreme Court denied Ruhl’s petition for leave to appeal on
March 26, 2008. Ruhl subsequently filed a pro se petition for
leave to file a successive post-conviction petition in the circuit
court, which the circuit court denied. He then filed a motion to
reconsider, which the circuit court also denied. The appellate
court affirmed, and the Illinois Supreme Court denied Ruhl’s
petition for leave to appeal on September 29, 2010, making
federal habeas corpus his final avenue for relief. The district
court found that many of Ruhl’s ineffective assistance of
counsel claims were procedurally defaulted, and it denied the
remainder of his claims on the merits.
Ruhl contends that the district court erred in not issuing the
writ because his trial attorney’s performance was
constitutionally inadequate. On appeal, Ruhl asserts that his
trial counsel provided ineffective assistance when he failed to
(1) present testimony from two detectives who had voiced
concerns about Schubat’s credibility; (2) interview and present
testimony of several witnesses who would have impeached
Schubat’s credibility; (3) investigate telephone records to show
that Schubat had not called Neubauer’s cell phone from a
landline phone after she returned home; (4) investigate facts
surrounding the traffic stop on the morning of the murder; (5)
present expert testimony, which counsel had referenced in his
opening statement, that would have undermined the State’s
case; (6) object to inadmissible hearsay testimony inculpating
Ruhl; and (7) present corroborating witnesses at the pretrial
hearing on the State’s motion to exclude testimony that Serio
admitted to shooting Neubauer. The cumulative prejudice of
10 No. 12-2515
these errors, Ruhl argues, creates a reasonable probability that,
absent counsel’s deficient performance, the jury would have
acquitted him.
II.
We review de novo the district court’s denial of Ruhl’s
petition, Emerson v. Shaw, 575 F.3d 680, 685 (7th Cir. 2009),
including whether a petitioner has procedurally defaulted a
claim, Smith v. Gaetz, 565 F.3d 346, 351 (7th Cir. 2009). Like the
district court, our review is also governed by the Antiterrorism
and Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254(d). In conducting federal habeas review under AEDPA,
we look to the last reasoned state court opinion addressing
each claim. Woolley v. Rednour, 702 F.3d 411, 421 (7th Cir. 2012)
(citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). If a state
court has adjudicated a petitioner’s claim on the merits, habeas
relief may only be granted if the state court decision was (1)
“contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme
Court of the United States,” 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); Cullen v.
Pinholster, 131 S. Ct. 1388, 1398 (2011). In order for a federal
court to find a state court’s application of federal law
unreasonable, the court’s application must have been more
than incorrect; it must have been objectively unreasonable.
Wiggins v. Smith, 539 U.S. 510, 520 (2003). If no state court has
squarely addressed the merits of a habeas claim, we review the
claim de novo under the pre-AEDPA standard of 28 U.S.C.
§ 2243, but still with deference to the state court. Morales v.
No. 12-2515 11
Johnson, 659 F.3d 588, 599 (7th Cir. 2011) (internal citations
omitted).
Ruhl contends that his conviction was the result of a denial
of his Sixth Amendment right to the effective assistance of
counsel. A claim of ineffective assistance of counsel is analyzed
under the familiar two-prong test of Strickland v. Washington:
First, the defendant must show that counsel’s
performance was deficient. This requires showing
that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable. Unless a defendant makes both showings,
it cannot be said that the conviction or death
sentence resulted from a breakdown in the
adversary process that renders the result unreliable.
466 U.S. 668, 687 (1984).
Recognizing the temptation for a defendant “to
second-guess counsel’s assistance after conviction or adverse
sentence,” or to conclude that a particular act or omission was
unreasonable simply because it was unsuccessful, the Court
held in Strickland that “[j]udicial scrutiny of counsel’s
performance must be highly deferential.” Id. at 689. To fairly
assess an attorney’s performance, it is essential for a court “to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate
12 No. 12-2515
the conduct from counsel’s perspective at the time.” Id.“Because of the difficulties inherent in making the evaluation,
a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’” Id. (internal
citation omitted).
Except in those rare cases in which prejudice is presumed,
counsel’s deficient performance, by itself, is not enough to
warrant relief. “[A]ny deficiencies in counsel’s performance
must be prejudicial to the defense in order to constitute
ineffective assistance under the Constitution.” Id. at 692.
Moreover, to prove prejudice, it is not enough to show that
counsel’s errors might have had an effect on the outcome.
There must be “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
In sum, to establish ineffective assistance of counsel, a
defendant must show (1) counsel’s representation fell below an
objective standard of reasonableness, and (2) there is a
reasonable probability that counsel’s errors affected the
outcome of the proceeding. Moreover, in deciding such claims,
a court does not need to address the Strickland prongs in any
particular order. If one prong is found to be insufficient, the
court need not address the other prong. Id. at 697.
Strickland provides the standard we apply on direct review
of a claim of ineffective assistance. Where, as here, our review
No. 12-2515 13
is of a state conviction under § 2254, we apply AEDPA’s
deferential standard as well, making our review “doubly”
deferential as to those issues ruled on by the state court.
Harrington v. Richter, 131 S. Ct. 770, 788 (2011). “When § 2254(d)
applies, the question is not whether counsel’s actions were
reasonable. The question is whether there is any reasonable
argument that counsel satisfied Strickland’s deferential
standard.” Id.
In this case, the parties dispute which issues must be
reviewed under AEDPA’s deferential standard and which
should be reviewed under the pre-AEDPA de novo standard.
We need not decide which standard applies because we
conclude that even under Strickland’s single level of deference,
Ruhl’s claim fails. We turn now to the specific allegations of
counsel’s deficient performance that Ruhl contends entitle him
to relief.
A. Failure to Call Detectives Lucci and Hafke
Ruhl first criticizes his attorney for failing to interview and
call as witnesses for the defense Kenosha Sheriff’s Department
Detectives Vincent Lucci and Peggy Hafke. Detectives Lucci
and Hafke were the first to confront Schubat with evidence
that she was present at the time Neubauer was shot. That
evidence consisted of a statement Serio had made to Amanda
Barbaro about Neubauer’s murder. Barbaro was in custody at
the Lake County Jail after she was stopped for a traffic
violation on March 28, 2002. Barbaro told the officer who
stopped her that Serio had confided to her that he was
involved in the murder. Serio told her that Neubauer was shot
in the parking lot of the Whip Lash, and that Schubat was
14 No. 12-2515
present. Serio said that Schubat was aware it was going to
happen because it had been previously planned. Serio also told
Barbaro that Ruhl was involved. He told Barbaro that Ruhl
moved Neubauer over to the passenger seat after he had been
shot in the head and then drove the victim’s vehicle to the
Renaissance Faire where it was later found. Barbaro repeated
the same information to Detectives Lucci and Hafke, and on
April 4, 2002, they confronted Schubat with a portion of this
information during an interview. It was at that point that
Schubat first recounted the version she later gave under oath
at Ruhl’s trial.
Given Barbaro’s statement and Schubat’s admitted lies to
police before, Detectives Lucci and Hafke were at least initially
skeptical of Schubat’s claim that she did not know Serio and
Ruhl were planning to kill Neubauer. She told the detectives,
as she later testified at trial, that she did not take seriously their
conversations about killing Neubauer before the murder, and
afterwards, she was afraid Serio would harm her daughter if
she talked. The detectives noted in their reports that at times,
she appeared deceptive. Detective Lucci noted that “[d]uring
the interview Denise was very nervous and appeared
deceptive when asked various questions that would indicate
her possible involvement. She had very little eye contact and
squirmed frequently in her chair.” As a result, the detectives
asked Schubat to take a test called a computer voice stress
analyzer (CVSA), which they described as a “truth verification
test.” Schubat agreed to do so and was transported to the
Kenosha County Sheriff’s Department to have the test
performed. Schubat was told that the test showed she was
deceptive in her response to the questions asking if she saw
No. 12-2515 15
who shot Neubauer and if she had asked anyone to shoot him.
She had answered both questions “No.”
Ruhl argues that his trial attorney’s failure to interview
Detectives Lucci and Hafke and then call them to testify about
their observations was objectively unreasonable and
prejudicial. He notes that Schubat’s credibility was central to
the State’s case against him. Detective Lucci’s statements about
Schubat’s credibility, Ruhl contends, are “highly relevant.”
According to Ruhl, “Lucci’s observations about Schubat’s
deception would have supported [counsel’s] theory that
Schubat, not Ruhl, helped Serio murder Neubauer.”
Ruhl’s contention that his attorney’s failure to interview
Detectives Lucci and Hafke prior to trial constitutes ineffective
assistance of counsel finds no support in the record. In Illinois,
as in most states, “[a] witness is not obligated to speak to an
attorney for the other party.” People v. Slabaugh, 323 Ill. App. 3d
723, 323 Ill. Dec. 544, 753 N.E.2d 1170, 1178 (Ill. App. Ct. 2001).
Law enforcement officers write reports in which they record
their observations. Ruhl offers no reason to think that either
detective would have agreed to be interviewed by his lawyer.
Absent such evidence, his argument that counsel was
ineffective in failing to interview law enforcement officers
involved in the investigation must fail.
Ruhl’s argument that counsel was ineffective in failing to
call the two detectives as defense witnesses to testify about
their opinion that Schubat appeared deceptive during their
interview of her is likewise unavailing. “Under Illinois law, it
is generally improper to ask one witness to comment directly
on the credibility of another witness as questions of credibility
16 No. 12-2515
are to be resolved by the trier of fact.” People v. Becker, 239 Ill.
2d 215, 346 Ill. Dec. 527, 940 N.E.2d 1131, 1143 (Ill. 2010)
(internal citations omitted). The fact that the CVSA Schubat
underwent indicated deceptiveness to two of the questions that
she was asked does not change the result. Illinois does not
allow for the admission of polygraph evidence, People v.
Baynes, 88 Ill. 2d 225, 58 Ill. Dec. 819, 430 N.E.2d 1070, 1077 (Ill.
1981), and there is no reason to believe the CVSA is any more
reliable. While the detectives could have testified to Schubat’s
physical appearance and mannerisms during the interview,
Schubat’s apparent “nervousness” was easily attributed to the
fact that, because of her earlier lies, law enforcement at the
time viewed her as a suspect in the murder of the father of her
child.
Ruhl also notes, however, that according to Detective
Lucci’s report of the interview, Schubat admitted that at some
point she had told Serio that Neubauer “had beat on her in the
past and it would be nice if he was just out of the way.”
Counsel’s failure to elicit the fact that Schubat had made such
an admission, Ruhl contends, was also objectively
unreasonable under the circumstances and undermines
confidence in the outcome of his trial. Had his attorney
introduced this evidence, Ruhl contends it would have
provided significant support to his theory that Schubat was
involved.
In the context of the entire interview, the statement was not
the smoking gun Ruhl suggests. Detective Hafke’s more
detailed account states that Detective Hafke asked Schubat if
she ever told Serio that she wanted Neubauer dead. According
to Detective Hafke’s report, Schubat admitted that “she did
No. 12-2515 17
make a comment in the past when she was upset with Rick,
such as, ‘[i]t would be better if he was just gone.’” When
Detective Hafke later asked Schubat if it was possible that she
asked Serio to kill Neubauer because he was abusive to her and
her daughter, Schubat stated that everything was fine between
them and denied that he was abusing her. Other witnesses,
including Schubat’s best friend and Neubauer’s mother and
sister, corroborated Schubat’s testimony that whatever
difficulties they had in the past, she and Neubauer were
getting along better than ever before after they resumed their
relationship. Neubauer’s mother, with whom Schubat and
Neubauer frequently stayed prior to his death, testified that
she had also developed a close relationship with Schubat.
In light of this evidence, Detective Lucci’s testimony would
have had little effect. Even at best, the evidence would only
have suggested that Schubat may have wanted Neubauer out
of her life; it did not mean she wanted him killed, and it
certainly did not exonerate Ruhl. Under Strickland’s deferential
standard of review, we find no violation of Ruhl’s right to
effective assistance of counsel for failing to call Detectives
Lucci and Hafke.
B. Failure to Call Owens and Shoblom
Ruhl next contends that trial counsel provided ineffective
assistance because he failed to interview and present the
testimony of Jennifer Shoblom and Scott Owens. According to
Owens’ affidavit, he would have testified that he had known
Schubat for twelve years, and during the time she was with
Neubauer, “they never seemed stable and she had complained
of him being physical from time to time.” Owens also stated,
18 No. 12-2515
however, that he had not talked with Schubat since she began
working at the Whip Lash. Shoblom likewise stated in an
affidavit that she had known Schubat a long time, that at some
unspecified point in time Neubauer had been verbally abusive
to Schubat over the phone, that at the same time she had
noticed suspicious bruises on Schubat, and that the
relationship between the two was unstable. Additionally, both
Owens and Shoblom would have testified that they saw
Schubat at gatherings where Serio was also present in the days
following Neubauer’s murder, and she did not appear
frightened of him. Ruhl argues that this evidence would have
contradicted the State’s argument that Schubat had no motive
to kill Neubauer and undermined Schubat’s testimony that she
was afraid of Serio.
The affidavits of Owens and Shoblom do not establish that
his trial attorney was ineffective in failing to call them as
witnesses. At the outset, there is no evidence that counsel knew
or should have known of Owens before trial. If there is no
reason counsel should have known about him, counsel’s
failure to call him as a witness was not deficient. But even if
counsel knew of both Owens and Shoblom and the proposed
testimony recounted in their affidavits, his failure to call them
as witnesses was not unreasonable. Neither offered any
evidence about how Schubat was getting along with Neubauer
after they resumed their relationship in late November of 2001.
Owens states in his affidavit that he had not spoken with
Schubat since she started working at the Whip Lash. And
Shoblom likewise says nothing about how Schubat felt about
Neubauer after they got back together. Schubat and
Neubauer’s mother and sister had admitted that the
No. 12-2515 19
relationship had been up and down before that time, and
neither Owens nor Shoblom added anything that would have
been admissible, especially in light of the fact that counsel had
called Sandra Morton to make the same point. Shoblom’s
observation that Schubat had “suspicious” bruises at some
point in the past, and Owens’ claim that Schubat had at some
point complained of Neubauer “being physical from time to
time” were both too vague and indefinite to be admissible.
The fact that Owens and Shoblom had seen Schubat and
Serio at gatherings after the murder likewise offered little.
Neither Owens nor Shoblom say that the two interacted; they
only describe two occasions of being at someone’s house and
noticing that both Schubat and Serio were there. Owens does
not say whether Schubat appeared frightened of Serio or not,
and while Shoblom states that Schubat did not appear
frightened of Serio, she also notes that Schubat seemed “odd,
nervous and vomiting a lot.” Given the fact that Schubat
testified to having seen Serio after the murder, and had even
served drinks to a group he was with at the Whip Lash,
testimony from Owens and Shoblom would have been at best
cumulative. Moreover, because Schubat was following Serio’s
instructions not to say anything about the murder, she may
well have thought she had little reason to fear him at the time.
Finally, Shoblom states in her affidavit that when she went
to the Whip Lash on the night Neubauer’s body was
discovered, she looked through a window on the bar door.
Ruhl contends this statement implies that the window was
intact and contradicts Schubat’s testimony that the window
was broken. Although Ruhl describes this as one of the only
independently verifiable facts contained in Schubat’s
20 No. 12-2515
testimony, he reads far more into it than is there. Shoblom does
not say the window was intact, and even if she did, it would
have mattered little. Schubat never said the window in the bar
door was broken. In fact, it is not even clear which window
was broken. Regardless, the idea that a window broken on an
early January morning in northern Illinois might be repaired
by evening of the same day is hardly astounding. As with the
other information Owens and Shoblom had to offer, counsel’s
failure to elicit this evidence was neither deficient nor
prejudicial under Strickland’s deferential standards.
C. Failure to Use Telephone Records and Obtain Drive-
Time Study
As noted above, in an effort to counter the defense
argument that Schubat and not Ruhl was the person who
helped Serio dispose of Neubauer’s body, the State argued that
Schubat could not have driven from the Whip Lash bar to the
Renaissance Faire driveway and then back to her home in time
to make the call to Neubauer’s cell phone. The State offered
evidence to confirm that Schubat had called Neubauer’s cell
phone in the early morning hours of January 6, 2002, and left
a message on his voice mail. Detective Kenneth Urquhart was
one of the law enforcement officers from the Kenosha County
Sheriff’s Department that was dispatched to the location where
Neubauer’s body was found. Detective Urquhart testified that
he removed Neubauer’s phone from the floor of the car. He
listened to the voice mail messages and made a print-out of the
outgoing and incoming calls. Detective Urquhart testified that
he heard a voice he recognized as Schubat’s leave a message at
approximately 2:43 a.m. on January 6, 2002, asking “Where are
you?” Because Schubat said that she had made the call from
No. 12-2515 21
her landline after she arrived home, this meant that if she had
driven with Serio to leave Neubauer and the car at the
Renaissance Faire, she would have had to be back home by
2:43 a.m. To show she could not have done so, Detective
Timothy Jonites had timed how long it would take to drive the
same route at the same time of day at a speed of five miles over
the limit without stopping along the way. Leaving the Whip
Lash bar at 2:20 a.m., Detective Jonites testified that he did not
arrive at Schubat’s house until 2:59 a.m.
Ruhl argues that his attorney failed to effectively respond
to this evidence by using Neubauer’s phone records to
impeach Schubat and Detective Urquhart and by obtaining an
expert drive-time study for the defense. As to the phone
records, Ruhl notes that, contrary to the testimony of Schubat
and Detective Urquhart, the records show that the voice mail
was left at 2:48 a.m., and not 2:43 a.m. More importantly, Ruhl
argues, Edens should have pointed out that Neubauer’s cell
phone records contained no evidence that Neubauer received
any calls from Schubat’s landline that night. This fact, he
contends, would have cast further doubt on Schubat’s version
of the events of that night and undermined the State’s
argument that it was virtually impossible for her to have
assisted Serio. Ruhl also contends that his attorney should have
obtained an expert drive-time study to challenge the findings
of Detective Jonites’ study. Ruhl claims he paid counsel to hire
an investigator to conduct a drive-time study but counsel
never produced or utilized an expert study. Instead, counsel
argued in closing that jurors should look at a map and
determine that Schubat could have arrived home in time to
make the call.
22 No. 12-2515
It is true that the print-out of the incoming and outgoing
calls to Neubauer’s phone show an incoming call at 2:48 a.m.
instead of 2:43 a.m., and the number shown is not Schubat’s
landline. The fact that Neubauer’s phone records show a call
at 2:48 a.m. instead of 2:43 a.m., however, and that they do not
list Schubat’s home phone number as the originating number
does not undermine her credibility. The phone records indicate
that Neubauer received a call of 16-second duration at 2:48
a.m. from the phone number 312-907-6245. Although this is not
Schubat’s home phone number, Detective Kenneth Urquhart
noted in his report that this number is shown whenever a caller
leaves a voice mail message. In fact, the print-out shows the
same number appears for the messages left by Neubauer’s
mother and father later that morning and everyone else who
called and left messages on Neubauer’s phone after his death.
Presumably, Schubat’s home phone records would have
shown whether a call was made from her home at that time,
but neither party offered them. As to the time of the call,
Schubat testified that it was “some time around 2:43 a.m.”
when she placed the call. Thus, while it is true that Neubauer’s
phone records do not conclusively establish that the call was
placed from Schubat’s home, they are perfectly consistent with
the call having been placed as Schubat testified. Bringing out
these details would not have undermined Schubat’s credibility.
While it might have somewhat weakened the State’s argument
that it was impossible for Schubat to have assisted Serio in
disposing of Neubauer’s body, counsel’s failure to do so here
is not sufficient to undermine confidence in the result. Whether
she made the call at 2:43 a.m. or 2:48 a.m., there still would not
No. 12-2515 23
have been enough time for her to help Serio dispose of the
body.
Ruhl’s argument that counsel erred in failing to obtain an
expert drive-time study for the defense also fails. In order for
counsel’s failure to offer such evidence to constitute ineffective
assistance, Ruhl would have to show that the evidence was
available and that it would have been helpful to his defense.
See Ellison v. Acevedo, 593 F.3d 625, 634 (7th Cir. 2010) (“For
counsel’s performance to be found deficient, the defendant
must demonstrate that an expert capable of supporting the
defense was reasonably available at the time of trial.”). Ruhl
has offered no evidence, even at this late date, that a study that
would have been helpful to the defense exists or could have
been obtained. Detective Jonites testified that it would take
Schubat approximately 39 minutes to complete the full trip,
even if she turned around immediately at the fairgrounds and
consistently exceeded the speed limit. Ruhl’s suggestion that
a defense study might have shown that the route could have
been driven in less time is speculation.
It is true that counsel suggested in his opening statement
that such evidence would be forthcoming, but this does not
change the result. Counsel argued from a map that there was
a more direct route she could have driven and invited the
jurors to consult the map themselves. In any event, an
unfulfilled suggestion during opening statement that evidence
will be coming on a collateral issue is not enough to undermine
confidence in the result. For these reasons, counsel’s failure to
obtain a drive-time study did not constitute ineffective
assistance.
24 No. 12-2515
D. Failure to Investigate Traffic Stop
Ruhl also contends that trial counsel was ineffective in
failing to locate and interview Officer Lamanna prior to trial.
Officer Lamanna was the police officer who stopped Serio and
Ruhl at an intersection in Waukegan at 5:17 a.m. on the
morning Neubauer was murdered. Although the fact that the
two had been stopped by a Waukegan patrol officer that
morning was referenced in Barbaro’s statement to police, the
identity of the officer who conducted the stop was unknown
since he did not issue a citation or write a report. The State
claimed it was unable to discover the officer’s identity until the
evening of the first day of trial. It disclosed Officer Lamanna’s
name to the defense on the morning of the second day of trial
and stated it would be calling him as a witness. Counsel
objected on the ground that Officer Lamanna had not been
disclosed, but the trial court found no prejudice and overruled
his objection, conditioned on counsel being given an
opportunity to interview the officer before he took the stand.
Counsel declined to do so.
Ruhl contends that his attorney provided ineffective
assistance in failing to locate and interview Officer Lamanna
before trial so as to prepare an effective cross-examination.
Instead, counsel promised the jury in his opening statement
that there would be no evidence to tie Ruhl “in any way to any
of this.” Then, after his objection to Officer Lamanna being
called as a witness was overruled, Ruhl contends counsel
compounded his error by failing to take advantage of the
opportunity to interview the officer before he testified.
No. 12-2515 25
Counsel was not ineffective in failing to identify and
interview Officer Lamanna before trial. Doing so would have
only helped the State, since he was the only witness aside from
Schubat who could tie Ruhl to Serio on the morning of
Neubauer’s murder. It was far more reasonable to wait and
hope that the State never found him. Ruhl also argues,
however, that in light of the fact that counsel knew or should
have known about the traffic stop, counsel erred in telling the
jury in his opening statement that there was no evidence to tie
Ruhl “to any of this.” But the fact that Ruhl was with Serio at
5:17 a.m. did not mean that they were together at 2:20 a.m. As
noted above, Officer Lamanna’s testimony tied Ruhl to Serio;
it did not tie Ruhl, at least directly, to the murder. Finally, Ruhl
offers no evidence that he suffered prejudice because counsel
failed to interview Officer Lamanna before he testified. Absent
such evidence, he is not entitled to relief.
E. Failure to Object to Inadmissible Hearsay
Ruhl contends that counsel’s failure to object to Schubat’s
testimony that she heard Serio planning Neubauer’s murder
with Ruhl and commanding Ruhl over the phone to shoot
Neubauer was objectively unreasonable and constitutes
deficient performance within the meaning of Strickland. He
argues that these statements constitute inadmissible hearsay to
which a competent attorney would have objected. Given the
“highly inflammatory” character of the testimony, Ruhl argues
the prejudice is clear.
In ruling on Ruhl’s appeal from the trial court’s dismissal
of his post conviction petition, the Illinois Appellate Court held
that the trial judge did not abuse his discretion in summarily
26 No. 12-2515
rejecting Ruhl’s claim because the statements were admissible
as statements of co-conspirators. Ruhl argues that the appellate
court’s ruling that the statements were admissible as
statements of co-conspirators was unreasonable. More
specifically, he contends that the evidence, independent of the
statements themselves, was insufficient to establish a
conspiracy between Serio and Ruhl.
In essence, Ruhl asks us to overturn the Illinois Appellate
Court’s determination that the statements were admissible
under Illinois law. As a general rule, this is not something we
can do. See Waddington v. Sarausad, 559 U.S. 179, 192 n.5 (2009)
(“[W]e have repeatedly held that ‘it is not the province of a
federal habeas court to reexamine state-court determinations
on state-law questions.’”) (quoting Estelle v. McGuire, 502 U.S.
62, 67–68 (1991)); Huusko v. Jenkins, 556 F.3d 633, 637 (7th Cir.
2009) (“For a federal court cannot issue a writ of habeas corpus
that rests on a belief that a state court has misunderstood or
misapplied state law.”). Only in very rare cases where the state
court’s resolution of the evidentiary dispute was clearly
unreasonable or otherwise implicates federal constitutional
rights has this court granted habeas relief on state law
evidentiary questions. See, e.g., Martin v. Grosshans, 424 F.3d
588, 591 (7th Cir. 2005) (granting habeas for ineffective
assistance of counsel where state appellate court’s
determination of relevance and prejudice was clearly
unreasonable). This is not such a case.
Unlike the federal law governing the admissibility of co-
conspirator statements, Illinois law does not permit the court
to consider the statements themselves, other than the
defendant’s own statements, in determining whether a
No. 12-2515 27
conspiracy existed. Compare United States v. Bourjaily, 483 U.S.
171, 177–78 (1987) (holding that trial judge may consider any
evidence whatsoever, including the proffered hearsay
statements, in determining whether statements are admissible
under the co-conspirator exception to the hearsay rule), with
People v. Coleman, 399 Ill. App. 3d, 341 Ill. Dec. 660, 931 N.E.2d
268, 271 (Ill. App. 2010) (holding that under Illinois law
evidence of the conspiracy must be independent of the
declarations made by the co-conspirator in order for the
hearsay statements to be admitted under the co-conspiracy
exception). Even under Illinois’ more limited rule, however,
the appellate court’s determination of a conspiracy between
Serio and Ruhl was far from unreasonable. Schubat’s
observations prior to and immediately after Neubauer was
shot, together with Ruhl’s own statements as recounted by
Schubat, were more than sufficient to support a finding that
Serio and Ruhl conspired to murder Neubauer and dispose of
the body. There is no basis for us to overturn the state court’s
determination that Serio’s statements to Ruhl were admissible
as statements of a co-conspirator.
Even apart from whether Serio’s statements were
admissible under the co-conspirator exception to the hearsay
rule, they were clearly admissible on other grounds. Serio’s
statements about his intent to kill Neubauer were admissible
as non-testimonial statements of his then existing state of mind.
Under the state-of-mind exception, a hearsay statement may be
admissible if it “[expresses] the declarant’s state of mind at the
time of the utterance,” i.e., his intentions, plans or motivations.
People v. Lawler, 142 Ill. 2d 548, 154 Ill. Dec. 674, 568 N.E.2d 895,
900 (Ill. 1991). And Serio’s direct order that Ruhl knock on the
28 No. 12-2515
car window and shoot Neubauer was not even hearsay. It was
a direct command, not a statement offered to prove the truth
of the matter asserted. See United States v. White, 639 F.3d 331,
337 (7th Cir. 2011) (noting that “a command is not hearsay
because it is not an assertion of fact”) (citing United States v.
Murphy, 193 F.3d 1, 5 (1st Cir. 1999)). Moreover, because
neither type of statement was testimonial, Ruhl’s confrontation
rights under the Sixth Amendment were not implicated. See
Davis v. Washington, 547 U.S. 813, 821 (2006) (holding that only
testimonial statements are subject to Confrontation Clause).
For all of these reasons, any objections if made would have
been properly overruled. Counsel’s failure to object to
Schubat’s recounting of Serio’s statements was therefore not
unreasonable.
F. Failure to Present Corroborating Witness at Pretrial
Hearing
Finally, Ruhl contends that counsel provided ineffective
assistance by failing to present corroborating evidence at a
pretrial hearing on the admissibility of a statement Serio had
allegedly made to Marcy McIntosh. According to McIntosh,
Serio admitted to her that he had killed Neubauer without
mentioning Ruhl. The State filed a motion in limine to exclude
McIntosh’s testimony on hearsay grounds. At the hearing on
the State’s motion, McIntosh testified that she knew Serio
because she had been both a customer and an employee of the
Whip Lash. She was working at the Whip Lash in April 2002
when Serio came into the bar after police had picked him up
for questioning about Neubauer’s murder. McIntosh said that
she asked Serio why police were questioning him since he had
nothing to do with it. According to McIntosh, Serio responded:
No. 12-2515 29
“What do you mean I had nothing to do with it? I did it.” Serio
went on to say that he had shot Neubauer once, but that didn’t
kill him, so he “shot him more times.” Serio also said that
Neubauer was “a punk” and deserved to die.
Since Serio did not mention Ruhl in his statement to
McIntosh, the defense planned to offer his statement as
recounted by McIntosh in its defense. Counsel for Ruhl argued
that Serio’s statement was admissible as a statement against his
penal interest under Illinois law and under Chambers v.
Mississippi, 410 U.S. 284 (1973). Chambers held that the Due
Process Clause of the Fourteenth Amendment requires the
admission of a confession by a third party to the same crime
for which the defendant is on trial where the third party’s
statement carries sufficient indicia of reliability. The Chambers
court identified four factors to help determine the reliability of
a hearsay statement: (1) the statement was spontaneously
made to a close acquaintance shortly after the crime occurred;
(2) the statement is corroborated by some other evidence; (3)
the statement is self-incriminating and against the declarant’s
interests; and (4) there was adequate opportunity for
cross-examination of the declarant. Id. at 300–01. Here, the trial
judge excluded McIntosh’s testimony as unreliable because
Serio’s relationship with McIntosh was not sufficiently close
such that Serio might be expected to confess the commission of
a serious crime to her and it lacked corroboration. Ruhl argues
that counsel should have presented corroborating testimony
from Jim Natywa, McIntosh’s fiancé who was also present for
the initial part of Serio’s admission, and Amanda Barbaro, who
could have testified that Serio made a similar admission to her.
30 No. 12-2515
Counsel’s failure to do so, Ruhl argues, constitutes ineffective
assistance.
The Illinois Appellate Court reviewed the trial court’s
consideration of Serio’s confession as a statement against penal
interest in its order affirming the trial court’s order denying
Ruhl leave to file a second petition for post conviction relief.
Using Chambers’ indicia of reliability, the court concluded that
Ruhl was not prejudiced by counsel’s failure to present
Natywa’s testimony. The court first noted there was no
evidence suggesting that Natywa was more acquainted with
Serio than McIntosh. Further, Natywa’s testimony would only
have corroborated the fact that Serio said that he shot
Neubauer, not that Serio actually did shoot him or, what was
even more important, that Ruhl was not involved. The court
also observed that Natywa’s testimony would not have
affected the most important consideration to the trial court:
whether Serio would be available for cross-examination.
The appellate court’s decision is not contrary to, nor does
it constitute an unreasonable application of, clearly established
federal law. Natywa at most could have corroborated
McIntosh’s testimony that Serio said that he “killed
[Neubauer],” which, given the State’s theory of the case, would
not have exculpated Ruhl. The State, after all, charged Serio
with Neubauer’s murder as well as Ruhl. Ruhl suggests that
Serio told McIntosh that he killed Neubauer and Ruhl did not.
But that is not what Serio said even by McIntosh’s account.
Serio appears to have exaggerated his own role and left Ruhl’s
role out. To the extent Ruhl construes Serio’s purported
statement to McIntosh as exculpating him, it contained none of
Chambers’ indicia of reliability. It was not against Serio’s penal
No. 12-2515 31
interest, since whether Serio shot Neubauer by himself, or Ruhl
did so on Serio’s orders, Serio was guilty. The statement was
not made shortly after the crime, but some three months later
to people with whom Serio apparently had little more than a
casual relationship. There was no evidence to corroborate the
claim that Ruhl had no involvement, and Serio, having been
charged with the same crime, was not subject to cross-
examination.
Although the appellate court did not address Ruhl’s
argument that counsel should have called Barbaro, the decision
not to call her was obviously neither deficient nor prejudicial.
Barbaro would have testified that Serio said Ruhl was involved
too. According to Barbaro, Serio said that Ruhl helped him
transport Neubauer’s body to the fairgrounds. Thus, Barbaro’s
testimony would not have corroborated the key fact that Ruhl
seeks to read into McIntosh’s testimony—namely, that Serio
killed Neubauer and he had nothing to do with it. For all of
these reasons, counsel’s failure to call Natywa and Barbaro to
corroborate McIntosh’s testimony does not constitute
ineffective assistance of counsel.
III.
In sum, Ruhl has failed to demonstrate that counsel’s
alleged errors, considered individually or cumulatively,
prejudiced his case and rendered his performance
constitutionally deficient. This is not to say counsel’s
representation was perfect. “However, counsel ‘need not be
perfect, indeed not even very good, to be constitutionally
adequate.’” McAfee v. Thurmer, 589 F.3d 353, 355–56 (7th Cir.
2009) (quoting Dean v. Young, 777 F.2d 1239, 1245 (7th Cir.
32 No. 12-2515
1985)). For the reasons set forth above, we conclude that the
alleged errors Ruhl attributes to counsel were for the most part
not errors at all. To the extent counsel’s performance was
deficient, there is no reasonable probability that the result
would have been different. The judgment of the district court
denying the petition is therefore AFFIRMED.