Daniels, Michael v. Knight, Stanley ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2620
MICHAEL DANIELS,
Petitioner-Appellant,
v.
STANLEY KNIGHT, Superintendent,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 01 C 550—Richard L. Young, Judge.
____________
ARGUED NOVEMBER 2, 2006—DECIDED FEBRUARY 5, 2007
____________
Before BAUER, RIPPLE, and MANION, Circuit Judges.
MANION, Circuit Judge. Michael Daniels was convicted
of robbery and murder in Indiana state court following
a 1978 crime spree in an Indianapolis residential neigh-
borhood. After exhausting his state court remedies, Daniels
filed a petition for habeas relief in federal court under
28 U.S.C. § 2254, claiming he received ineffective assist-
ance of trial counsel. The district court denied Daniels’
petition. Daniels appeals, and we affirm.
2 No. 05-2620
I.
During Michael Daniels’ trial for murder, the State of
Indiana presented evidence that on the evening of Janu-
ary 16, 1978, Daniels and two other men committed a
series hold-up robberies and shootings in an Indianapolis
residential neighborhood. Daniels and his associates
approached people at four separate residences while the
residents were either shoveling snow or getting out of
their cars. During the course of the robberies, Daniels
beat one of his victims and shot two others, one fatally.
Each of Daniels’ six surviving victims and one of Daniels’
cohorts testified against him at his jury trial in Indiana
state court. Daniels was convicted of four counts of rob-
bery, one count of attempted robbery, and one count of
felony murder. He was sentenced to four consecutive
twenty-year terms of imprisonment and one fifty-year
term. Daniels also was sentenced to death for his felony
murder conviction.
Over the last twenty-seven years, Daniels has filed a
series of appeals and post-conviction petitions in the
Indiana and federal courts. First, the Supreme Court of
Indiana affirmed Daniels’ conviction and sentence on
direct appeal. Daniels v. State (Daniels I), 453 N.E.2d 160
(Ind. 1983). Daniels then sought collateral review via a
petition for post-conviction relief, which the Supreme
Court of Indiana ultimately denied. Daniels v. State (Daniels
II), 528 N.E.2d 775 (Ind. 1988). In his first petition for post-
conviction relief, Daniels claimed, among other things,
that he received ineffective assistance of trial counsel.
The United States Supreme Court granted Daniels’ petition
for a writ of certiorari, vacated the Supreme Court of
Indiana’s judgment in Daniels II, and remanded the case
to the Supreme Court of Indiana for further considera-
No. 05-2620 3
tion in light of the Court’s then recent decision in South
Carolina v. Gathers, 490 U.S. 805 (1989). Daniels v. Indiana,
491 U.S. 902 (1989). On remand, the Supreme Court of
Indiana held that neither Gathers nor Booth v. Maryland, 482
U.S. 496 (1987), were retroactive. Daniels v. State, 561
N.E.2d 487, 489-91 (Ind. 1990). On November 22, 1993,
Daniels filed a second petition for post-conviction relief,
which the Supreme Court of Indiana ultimately denied.
Daniels v. State (Daniels III), 741 N.E.2d 1177, 1191 (Ind.
2001). The Supreme Court of Indiana held that Daniels
had waived all of his ineffective assistance of counsel
claims, with the exception of the claim Daniels raised in his
first petition for post-conviction relief; in his first petition
for post-conviction relief, Daniels claimed that his trial
counsel was ineffective because he failed to confront one
of the government’s eyewitnesses, Timothy Streett, with
evidence that Streett had been hypnotized during one of
his identification sessions with police. Id. at 1181-88.
Nonetheless, the Supreme Court of Indiana reviewed on
their merits each of Daniels’ ineffective assistance claims
prior to denying his second petition. Id.
Following the Supreme Court of Indiana’s denial of his
second petition for post-conviction relief, Daniels filed
a petition for habeas relief pursuant to 28 U.S.C. § 2254
in federal court. Daniels v. McBride, No. IP 01-550-C-Y/K
(S.D. Ind. Apr. 7, 2005). Daniels’ § 2254 petition raised
multiple claims, including ineffective assistance of trial
counsel, the state withholding or destroying evidence, and
ineffective assistance of appellate counsel. On January 7,
2005, while Daniels’ § 2254 petition was pending before the
district court, then-Indiana Governor Joseph E. Kernan
commuted Daniels’ sentence of death to life imprison-
ment without the possibility of parole. Three months later,
4 No. 05-2620
the district court denied Daniels’ § 2254 petition. In deny-
ing Daniels’ petition, the district court did not address
the Supreme Court of Indiana’s finding that Daniels had
waived all but one of his ineffective assistance of counsel
claims, but instead denied each of Daniels’ claims on the
merits. The district court subsequently granted Daniels’
motion for a certificate of appealability. Daniels appeals
only the district court’s denial of his claims based on
alleged ineffective assistance of counsel during the guilt
phase of his trial.
II.
On appeal, Daniels reiterates a laundry list of grounds
for his claims of ineffective assistance of counsel during
the guilt phase of his trial. His allegations break down
into two categories: (1) his counsel’s failure to introduce
evidence that someone other than Daniels (specifically,
Paul Rowley) committed the robberies; and (2) his coun-
sel’s failure to confront Streett regarding his identifica-
tion after being hypnotized. The Supreme Court of Indi-
ana held that Daniels waived all of his ineffective assis-
tance claims, except for his claim that his counsel failed to
confront Streett, because Daniels failed to raise those
claims in his first post-conviction appeal. The district
court did not address the waiver issue, but, as a threshold
matter, we must determine whether Daniels procedurally
defaulted any of the claims he raises in this appeal.
“Out of respect for finality, comity, and the orderly
administration of justice, a federal court will not entertain
a procedurally defaulted constitutional claim in a petition
for habeas corpus absent a showing of cause and prejudice
No. 05-2620 5
to excuse the default1.” Dretke v. Haley, 541 U.S. 386, 388
(2004). Quoting the United States Supreme Court, the
Supreme Court of Indiana reiterated this point, stating:
The States possess primary authority for defining and
enforcing the criminal law. In criminal trials they also
hold the initial responsibility of vindicating constitu-
tional rights. Federal intrusions into state criminal
trials frustrate both the States’ sovereign power to
punish offenders and their good-faith attempts to
honor constitutional rights.
Woods v. State, 701 N.E.2d 1208, 1217 (Ind. 1998) (quoting
Engle v. Isaac, 456 U.S. 107, 128 (1982) (citation omitted)).
The Supreme Court of Indiana further explained:
Hence as a matter of procedural fairness a finding of
waiver by an Indiana court must be predicated on a
meaningful opportunity to litigate the claim. Alterna-
1
The Supreme Court recognized two exceptions to this rule:
“when habeas applicant can demonstrate that the alleged
constitutional error has resulted in the conviction of one who
is actually innocent of the underlying offense or, in the capital
sentencing context, of the aggravating circumstances rendering
the inmate eligible for the death penalty.” Dretke, 541 U.S. at 388.
Daniels, however, does not argue for or meet either exception.
First, he does not attempt to demonstrate that his counsel’s
alleged errors resulted resulted in the conviction of one who
is actually innocent of the underlying offense. (Appellant’s
Opening Br. at 46 (“Appellant simply asks the Court to recog-
nize the obvious proposition that Appellant received woe-
fully inadequate counsel and give him the opportunity for the
fair trial he never received.”).) Second, his original capital
sentence was commuted to life imprisonment without the
possibility of parole.
6 No. 05-2620
tively, if an ineffectiveness claim found to be waived
in our courts is nonetheless addressed on the merits in
federal court, this State will have foregone the op-
portunity to correct the possible error before federal
review of our judicial process. One goal of our
postconviction rules is to minimize the level of federal
constitutional error before federal review of the con-
viction: “[O]ne of the functions of our post convic-
tion remedy rules is to preserve what sanctity remains
to this [S]tate’s disposition of a criminal charge by
allowing a convicted criminal defendant ample op-
portunity to present claims for relief in the courts of
this state before resort must be had to the federal
courts.” Langley v. State, 267 N.E.2d 538, 541 (Ind. 1971).
Id. at 1217-18.
In Daniels III, the Supreme Court of Indiana addressed
how the waiver doctrine impacted Daniels’ ineffective
assistance of trial counsel claims. In addition to his unsuc-
cessful direct appeals of his sentence, Daniels had filed
two sets of post-conviction petitions. Regarding the
ineffective assistance of trial counsel claims Daniels
presented in a second post-conviction petition, the Su-
preme Court of Indiana held:
[A]ll of these matters were known or knowable both at
trial and at the time of Daniels’ first post-conviction
proceeding. Therefore, the post-conviction court
correctly held that Daniels’ new claims of trial coun-
sel ineffectiveness were barred by res judicata and waiver.
As this Court observed in our last opinion in this case,
“the Indiana Rules of Procedure for Post-Conviction
Remedies require that all grounds for relief available
to a petitioner under the post-conviction rules must
be raised in the original petition.” State v. Daniels, 680
No. 05-2620 7
N.E.2d 829, 835 n.10 (Ind. 1997) (citing Ind. Post-
Conviction R. 1(8)).
[T]he issue of the effectiveness of Daniels’ trial and
appellate counsel was extensively litigated and
appealed in his post-conviction proceeding nine
years ago. Daniels v. State [Daniels II], 528 N.E.2d
775 (Ind. 1988). The issues raised by Daniels in this
appeal were on the face of the record from the time
of his trial. Accordingly, consideration of addi-
tional issues bearing on trial or appellate coun-
sel’s ineffectiveness that were available at that
time is precluded. Id. [citations omitted]
We must mean what we say in our rules, that a
defendant is entitled to one post-conviction hearing
and one post-conviction opportunity to raise the issue
of ineffectiveness of trial counsel in the absence of
newly discovered evidence . . . .
Although the evidence related to Rowley might have
helped Daniels’ defense, none of these lines of inquiry
except for Timothy Streett’s identification were ad-
dressed either at trial or as examples of ineffective trial
assistance at the first post-conviction proceeding. . . .
In sum, we reaffirm the sound and long-established
principle that considerations of finality preclude re-
litigation of previously available contentions in suc-
cessive post-conviction proceedings.
Daniels III, 741 N.E.2d at 1184-85 (citing Baum v. State, 533
N.E.2d 1200, 1201 (Ind. 1989) and Resnover v. State, 547
N.E.2d 814, 816 (Ind. 1989) (emphasis added)).
Daniels argues, however, that the Supreme Court of
Indiana’s decision in Daniels III does not require a finding
8 No. 05-2620
of procedural default, because we cannot reasonably
discern whether that court based its holding upon the
principle of res judicata or the principle of waiver. This
distinction is important because an application of res
judicata is not an adequate bar to federal review, but a
finding of waiver is a procedural default prohibiting
federal review. See Moore v. Bryant, 295 F.3d 771, 775-77
(7th Cir. 2002) (finding federal review not prohibited by
state court’s application of only res judicata to bar claim).
As we have noted previously, “a state court’s invocation
of res judicata ‘simply means that the state courts have
already resolved the matter and want nothing more to do
with it.’ ” Id. at 776 n.1 (quoting Porter v. Gramley, 112 F.3d
1308, 1316 (7th Cir. 1997)). A finding of waiver, on the
other hand, “must be predicated on a meaningful op-
portunity to litigate the claim” and a finding that the
litigant elected not to pursue the claim when presented
with the opportunity to do so. See Woods, 701 N.E.2d
at 1217-18.
Contrary to Daniels’ argument, it is clear from Daniels III
that the Supreme Court of Indiana was relying on the
principle of waiver. In its opinion in Daniels III, the Su-
preme Court of Indiana stated that its holding was
based on waiver and articulated the rationale for its find-
ing when it stated that “[a]though evidence related to
Rowley might have helped Daniels’ defense, none of
these lines of inquiry except for Timothy Streett’s identifi-
cation were addressed either at trial or as examples of
ineffective trial assistance at the first post-conviction
proceeding.” Daniels III, 741 N.E.2d at 1185. The basis for
its waiver holding is most clearly expressed in its con-
clusion that “we reaffirm the sound and long-established
principle that considerations of finality preclude re-litiga-
No. 05-2620 9
tion of previously available contentions in successive post-
conviction proceedings.” Id. The Daniels III court also
clarified its understanding of the distinction between res
judicata and waiver when it stated:
[W]e adhere to the view that claims of ineffective
assistance of counsel, if litigated at the initial post-
conviction proceeding, are barred by the doctrine of
res judicata in successive petitions of post-conviction
relief, and any acts or omissions of the trial counsel that
were available in the first post-conviction proceeding
but not raised are waived in a successive petition. This
doctrine controls the disposition of this case.
Daniels III, 741 N.E.2d at 1187 (emphasis added). We thus
find that the Supreme Court of Indiana relied upon the
doctrine of waiver to bar by procedural default all of
Daniels’ ineffective assistance of counsel claims, except
his claim related to Streett’s identification.
Daniels also contends that even were the Supreme Court
of Indiana’s holding in Daniels III based on waiver, he
should not be procedurally defaulted from raising his
claims because the Indiana rules regarding waiver were
not “firmly established and regularly followed” at the time
he filed his first petition for post-conviction relief in 1984.
See Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (“[O]nly
a ‘firmly established and regularly followed state prac-
tice’ may be interposed by a State to prevent subsequent
review by this Court of a federal constitutional claim.”
(quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984))).
Specifically, Daniels argues that the Supreme Court of
Indiana did not settle uncertainties regarding its waiver
doctrine until its decision in Woods v. State, 701 N.E.2d
1208 (Ind. 1998). Daniels, however, reads Woods too
broadly. The unsettled issue in Woods was whether a
10 No. 05-2620
defendant must raise ineffective assistance of counsel
claims on direct appeal, or whether a defendant can raise
them for the first time in a petition for post-conviction
relief. Woods, 701 N.E.2d at 1213-15. The Woods court
concluded that “ineffective assistance may be raised on
direct appeal, but if it is not, it is available in post-
conviction proceedings.” Id. at 1216. The Woods holding
had nothing to do with the issue here, which is wheth-
er Daniels waived his ineffective assistance of counsel
claims raised for the first time in a second petition for post-
conviction relief after electing not to raise those claims
in his first petition for post-conviction relief. The answer
to that question is found in Rule 1(8) of the Indiana Rule
of Procedure for Post-Conviction Remedies, entitled
“Waiver or failure to assert claims,” and the case law
interpreting it, which predate Daniels’ first petition for
post-conviction relief. Ind. Post-Conviction R. 1(8) (“All
grounds for relief available to a petitioner under this rule
must be raised in his original petition.”); see, e.g., Jewell v.
State, 397 N.E.2d 946, 947 (Ind. 1979) (finding waiver
for failure to assert claims available in first petition for
post-conviction relief); Lamb v. State, 325 N.E.2d 180, 184
(Ind. 1975) (“[I]nasmuch as the petition was an attempt to
raise an issue available to the defendant under his first
petition but not therein raised, and there was no error
in summarily dismissing the petition.”). Further, even
though the two cases cited by the Daniels III court to
support its waiver holding, Baum v. State, 533 N.E.2d 1200
(Ind. 1989), and Resnover v. State, 547 N.E.2d 814 (Ind.
1989), were not decided prior to the date on which Daniels
filed his first petition for post-conviction relief, those cases
represent only two of the more recent decisions in the
Supreme Court of Indiana’s long-established line of
authority interpreting Rule 1(8). See Resnover, 547 N.E.2d
No. 05-2620 11
at 816 (discussing the Supreme Court of Indiana’s history
of post-conviction petition waiver decisions). We thus
find that the waiver rule applied by the Daniels III court
was “firmly established and regularly followed” at the time
Daniels filed his first petition for post-conviction relief.
Accordingly, we hold that all of Daniels’ ineffective
assistance of counsel claims, except his claim related to
Streett’s identification which was raised in his first peti-
tion for post-conviction relief, are barred by procedural
default based on the Supreme Court of Indiana’s finding
of waiver in Daniels III.
In his sole non-procedurally defaulted claim, Daniels
argues that the district court erred in denying his § 2254
habeas petition because his trial counsel’s failure to raise
the issue of Timothy Streett’s identification after he was
hypnotized was so woefully inadequate and prejudicial
that it requires a new trial. Timothy Streett was the then-
fifteen-year-old son of Daniels’ murder victim, Allen
Streett. Timothy Streett witnessed Daniels shoot his
father in the family’s driveway after his father informed
Daniels that he could not give him his wallet because
he was not carrying it. The Supreme Court of Indiana
previously rejected Daniels’ claims regarding Streett’s
identification when Daniels raised them in his first petition
for post-conviction relief. Daniels II, 528 N.E.2d at 779-80;
see also Daniels III, 741 N.E.2d at 1182 n.5 (discussing
holding of Daniels II). In his first petition for post-convic-
tion relief, and in his § 2254 petition, Daniels alleged that
his trial counsel provided ineffective assistance in violation
of the Sixth Amendment by failing to challenge Streett’s
identification testimony based on the fact that Streett
underwent hypnosis during an identification session
with police. Daniels further alleges that this error was
12 No. 05-2620
compounded by his trial counsel’s failure to inform the
jury that Streett had been hypnotized, had only identi-
fied Daniels after hypnosis, and had made a “possible”
identification of another man while hypnotized. We review
the district court’s denial of habeas relief de novo. Goodman
v. Bertrand, 467 F.3d 1022, 1026 (7th Cir. 2006).
Our review of this claim is governed by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). 28
U.S.C. § 2254(d); see also Lambert v. McBride, 365 F.3d 557,
561 (7th Cir. 2004). Under the AEDPA, if a state court
adjudicated a constitutional claim on the merits, then a
federal court may grant habeas relief only if the state
court decision was contrary to, or involved an unreason-
able application of, Supreme Court precedent or if the
state court decision was based on an unreasonable deter-
mination of the facts in light of the evidence presented in
the state proceeding. 28 U.S.C. § 2254(d); see also Williams
v. Taylor, 529 U.S. 362, 376-77 (2000) (discussing the
AEDPA). Daniels bears the burden of proving that the
Supreme Court of Indiana’s application of federal law
was unreasonable. Harding v. Sternes, 380 F.3d 1034, 1043
(7th Cir. 2004). As this court has stated previously, the
“unreasonable application” prong of § 2254(d) “is a
difficult standard to meet.” Jackson v. Frank, 348 F.3d 658,
662 (7th Cir. 2003).
The Supreme Court set forth the framework for assessing
Sixth Amendment ineffective assistance of counsel claims
in Strickland v. Washington, 466 U.S. 668 (1984); see also
Goodman v. Bertrand, 467 F.3d 1022, 1027 (7th Cir. 2006)
(applying Strickland). The Strickland framework was
clearly established by the time the Indiana trial court
denied Daniels’ first post-conviction appeal on February
21, 1985. See Williams, 529 U.S. at 391 (“It is past question
No. 05-2620 13
that the rule set forth in Strickland qualifies as ‘clearly
established Federal law, as determined by the Supreme
Court of the United States.’ ” (citation omitted in original));
see also United States v. Payne, 741 F.2d 887, 890-95 (7th Cir.
1984) (applying the Strickland framework to case briefed
and argued before this court prior to the Supreme
Court issuing its Strickland decision). The Supreme Court
framed the determinative question as “whether counsel’s
conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 U.S. at 686.
Under Strickland, Daniels must prove two elements: (1) that
his trial counsel’s performance fell below “an objective
standard of reasonableness,” id. at 688; and (2) “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different,” id. at 694. For the first ele-
ment, this court’s review of the attorney’s performance is
“highly deferential” and “reflects 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 circum-
stances, the challenged action might be considered sound
trial strategy.” Id. at 689. For the second element, the
defendant must show that “counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Id. at 687. Daniels’ failure to
establish either element of the Strickland framework will
result in denial of his claim. Rastafari v. Anderson, 278 F.3d
673, 688 (7th Cir. 2001). Finally, “a state-court holding
is not contrary to clearly established federal law” even if
it fails to cite Supreme Court precedent, “as long as ‘neither
the reasoning nor the result of the state-court decision
14 No. 05-2620
contradicts them.’ ” Harrison v. McBride, 428 F.3d 652, 666
(7th Cir. 2005) (quoting Early v. Packer, 537 U.S. 3, 8 (2002)).
As an initial matter, we note that Daniels failed to
show any evidence that the various recitations of evi-
dence and factual findings by the Indiana state courts
were incorrect, so we presume those courts’ findings of
fact to be correct. See Foster v. Schomig, 223 F.3d 626, 631
(7th Cir. 2000) (applying 28 U.S.C. § 2254(e)(1)) (“Findings
of fact made by the state courts are presumed to be cor-
rect and this presumption may be rebutted only by clear
and convincing evidence.”). Next, we look to the Supreme
Court of Indiana’s analyses in Daniels II and Daniels III to
determine whether they were contrary to Strickland. In
addressing Daniels’ claim regarding Streett’s identifica-
tion after being hypnotized, the Daniels II court specifically
cited Strickland as the basis for its analysis and quoted its
framework. Daniels II, 528 N.E.2d at 779. Applying Strick-
land, the Daniels II court found that Streett had an inde-
pendent basis for his identification of Daniels, which
was untainted by the hypnosis session. Id. That independ-
ent basis rendered harmless Daniels’ trial counsel’s failure
to raise Streett’s identification after being hypnotized. Id.
The Daniels II court also noted that Daniels’ trial counsel
testified that they believed that the key to the case was
the testimony of Kevin Edmonds, one of the participants
in the crime who identified Daniels as the triggerman. Id.
Daniels’ trial counsel also testified that, compared to
Edmonds’ testimony, they did not believe Streett’s testi-
mony was of great importance. Id. They further testified
that when Streett was being questioned on the witness
stand, he was on the verge of breaking down and any
further attempts to discredit his identification would
appear to be an attack on the son of the murder victim.
No. 05-2620 15
Based on that testimony, the Daniels II court rejected
Daniels’ claim, concluding:
Clearly a decision was made to concentrate on dis-
crediting Edmonds rather than Timothy Streett in order
to avoid alienating the jury with extensive cross-
examination of the victim’s fifteen-year old son. The
propriety of this decision will not be questioned based
on hindsight, even if the strategy were poor, it does
not rise to the level of ineffective assistance.
Id. The Daniels III court reiterated its earlier holding by
stating that “[w]e denied relief because Streett had an
independent basis for his in-court identification that
was untainted by the hypnosis” and because “Streett was
only one of several eyewitnesses who testified to the
various crimes charged.” Daniels III, 741 N.E.2d at 1182 n.5.
The district court, in considering Daniels’ § 2254 peti-
tion, began by addressing the Strickland framework’s first
element: whether Daniels received ineffective assistance
of trial counsel “in the context of the case as a whole,
viewed at the time of the conduct, and [with] a strong
presumption that the defendant received effective assis-
tance.” Hardamon v. United States, 319 F.3d 943, 948 (7th
Cir. 2003). We begin our analysis there as well. “There are
countless ways to provide effective assistance in any given
case.” Strickland, 466 U.S. at 689. It is “all too easy for a
court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission
of counsel was unreasonable.” Id. Thus, “only a clear
error in applying Strickland’s standard would support a
writ of habeas corpus.” Holman v. Gilmore, 126 F.3d 876,
882 (7th Cir. 1997). Here, Daniels’ trial counsel made a
tactical decision to subject one of Daniels’ cohorts to more
intensive cross-examination, while going easier on the
16 No. 05-2620
traumatized son of the murder victim. Because Streett
had an independent, non-tainted basis for his in-court
identification, we find the conduct of Daniels’ trial counsel
conduct fell within the wide range of reasonable profes-
sional assistance. Accordingly, Daniels cannot
satisfy Strickland’s first element. We further agree with
the district court that Daniels was not prejudiced by
the representation he received at trial and he cannot
satisfy Strickland’s second element because any error re-
garding raising Streett’s identification after being hypno-
tized was harmless. We therefore hold that the Su-
preme Court of Indiana did not unreasonably apply the
Strickland framework to bar Daniels’ petition for post-
conviction relief claim related to Streett’s identification,
and we affirm the district court’s denial of Daniels’ § 2254
petition.
III.
The Supreme Court of Indiana held in Daniels III that
Daniels waived all of his ineffective assistance of counsel
claims, except his claim regarding Streett’s identification
after being hypnotized, because Daniels failed to raise
those claims in his first petition for post-conviction relief.
Daniels thus was barred by procedural default from raising
those waived claims in his § 2254 petition, and the district
court should not have considered the merits of those
claims. We affirm the district court’s denial of Daniels’
sole remaining ineffective assistance of counsel claim;
the district court correctly held that the Supreme Court
of Indiana properly applied the Strickland framework to
deny Daniels’ claim regarding Streett’s identification after
being hypnotized. The district court’s denial of Daniels’
§ 2254 petition is AFFIRMED.
No. 05-2620 17
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-5-07