Mack Sims v. William Hyatte ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1573
MACK A. SIMS,
Petitioner-Appellant,
v.
WILLIAM HYATTE,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:14-cv-01936-RLM — Robert L. Miller, Jr., Judge.
ARGUED NOVEMBER 27, 2018 — DECIDED FEBRUARY 1, 2019
Before BAUER, HAMILTON, and BARRETT, Circuit Judges.
BAUER, Circuit Judge. Petitioner-appellant Mack Sims seeks
a writ of habeas corpus, arguing his due process rights were
violated because the state withheld evidence favorable to his
case. In November of 1993, security guard Shane Carey was
shot in Elkhart, Indiana. Approximately fifteen to twenty
minutes after the shooting, the Elkhart police found Mack Sims
near a walking path around twenty feet from where the
shooting occurred. After Carey identified him at trial as the
2 No. 18-1573
shooter, Sims was convicted of attempted murder and sen-
tenced to a term of imprisonment of 35 years. In 2012, during
a post-conviction evidentiary hearing, Sims learned the
prosecution withheld evidence that Carey, the only witness
who could identify the shooter, was hypnotized before trial to
enhance his recollection of the shooting. After the Indiana
courts denied habeas relief, Sims filed a petition for a writ of
habeas corpus in federal court. The district court held that the
Indiana court did not unreasonably apply established federal
law and denied the petition. Because we disagree, we reverse.
I. BACKGROUND
A. The Night of the Shooting
In September of 1993, Shane Carey began working as a
security guard at Sister Virginia’s Adult Basic Education
(“Sister Virginia’s”) in Elkhart, Indiana. On November 2, 1993,
the school was in session when Carey arrived for his shift at
6:00 p.m. Shortly after arriving he traversed the premises and
returned to his car to read a book after he was satisfied the
school was safe. Sister Virginia’s parking lot, where his car sat,
had some lighting but was not well lit.
Around 7:00 p.m., Carey noticed three black men walk
behind a nearby building and emerge in the parking lot a few
minutes later. The men walked toward Carey’s vehicle; two
walked to the passenger side and one to the driver’s side.
When about two feet from the car the individual walking
towards the driver’s side door grabbed a gun from his coat
and fired it through the window. Carey did not see the gun,
but soon realized he had been shot in the face. He made his
way into Sister Virginia’s and emergency help was summoned.
Carey testified at trial that the shooting took place “shortly
after 7:00 [p.m.].”
No. 18-1573 3
Officers Tom Lerner and William Wargo arrived on the
scene at 7:27 p.m. Lerner instructed Wargo to secure Carey’s
vehicle and the area around it while he entered Sister Virginia’s
to speak with Carey. Carey was having difficulty speaking but
was able to provide Lerner with a description of the assailant
as a black male with short hair or a shaved head and a large
build, possibly in his late twenties, wearing a three-quarter-
length coat with dark pants and dark combat boots.
At approximately 7:30 p.m. while standing near Carey’s car,
Officer Wargo heard a noise near the train tracks about twenty-
five feet southeast of Carey’s vehicle. Wargo then observed a
black male crouching behind a dumpster wearing a black
three-quarter length jacket and hat looking onto the crime
scene. This individual was near a walking path that ran next to
the train tracks and was often used by locals. The officers
ordered the subject out of the bushes and he came forward
without protest. They identified this individual as Mack Sims
and patted him down for weapons; none were found.
Although there were civilian witnesses in the area, none
were able to give an identifying description of the shooter.
Police officers searched the surrounding area extensively but
never found a gun, nor did they recover a shell casing from the
area or any other physical evidence.
B. The Trial of Mack Sims
On November 4, 1993, Sims was charged with attempted
murder. His trial began on August 23, 1994. The prosecution
called ten witnesses: six were law enforcement officers that
described their role in the investigation and three were
individuals present at Sister Virginia’s the night of the shooting
that were unable to identify the shooter. Thus, the state relied
4 No. 18-1573
almost exclusively on the only witness who could possibly
identify the shooter, Carey, to establish their case against Sims.
Carey testified that he got a good look at the assailant. He
described in court what he saw the night of the shooting in
more detail than was in the incident report:
Q: Now, as he approached the car, did you get a look at
him?
A: Yeah. I was looking him square in the eyes.
Q: Describe what you saw.
A: What I saw was a man with—it was a somewhat full
face, well—I’d say a well-rounded face. What I mainly
noticed was the eyes. And I noticed underneath the left
eye the skin tone, I’d say, or shades were slightly
different than the other. One side just underneath the
eye was a little bit lighter and the other side was very
dark. And I noticed—I did notice the eyes. It was a very
cold stare.
Q: Did you see him reach for anything?
A: I saw him make a hand movement, and that’s about it.
I saw a flash but nothing more.
Q: Okay. Do you recognize in this courtroom today the
person you saw and who shot you on November 2nd,
1993?
A: Yes, I do.
Q: Where is he?
A: He’s sitting right there in front of me (indicating).
Mr. Wicks [ the prosecutor]:
No. 18-1573 5
I would ask the record reflect the witness has identified
the defendant, Mack Sims, Your Honor.
The Court:
Let the record reflect the witness has identified the
defendant.
Carey continued to describe the assailant,
I noticed the shoes looked somewhat like boots, I would
say, and dark color pants. What I mainly noticed was
the coat. The coat was slightly long and dark in color,
either a dark black or maybe bluish or—like a Navy or
midnight blue or something to that extent. One of the
things I did notice on the coat was a patch on the
arm … It was a small patch. I didn’t really get a good
look at the shape, but it couldn’t have been more than
a couple inches in diameter.
Carey then observed the coat Sims was wearing when he was
arrested and identified a patch on it as being the one he
witnessed when the assailant approached his vehicle. Carey
also testified that detective John Faigh came to speak with him
at the hospital the day after his surgery. He recalled being
presented with six photos. Carey chose a photograph from this
lineup noting that the picture “looked like” the assailant. Carey
then identified in court the photograph of Sims that he picked
out of that lineup.
During cross-examination defense counsel pointed out that
Carey’s identification of the assailant in the photographic
lineup was not unequivocal. Carey indicated that he had
unequivocally identified the assailant in a photographic lineup
that appeared nowhere in the record:
6 No. 18-1573
A: The identification that I was provided with in the
emergency room was [unequivocal]. They did show me
something in the emergency room. It was difficult to
see, but what I did see, that was him.
Q: Oh, there was another picture that was shown to you?
A: There was another picture in the emergency room.
Q: There is nothing in the reports about that: is that
correct?
A: Not that I know of.
Carey was then asked about a situation shortly before trial
in which he was unable to identify the assailant in a photo-
graphic lineup:
Q: And you also recall, maybe even last week, looking at
a photo lineup when Mr. Wicks was around?
A: Uh-huh.
Q: And you again said that it looks like but you couldn’t
be sure because of some facial hair?
A: Yeah, the facial hair did throw me off, but I will not
forget the eyes. The eyes are the one thing that I do
remember.
Q: Now you indicated—yeah, you have talked about the
eyes, but you didn’t say anything in your statement
about the eyes.
A: That’s the one thing that I do remember.
Q: But you didn’t tell the police about it at the time?
A: No. But like I said, I was also very groggy.
No. 18-1573 7
Sims later testified and his mug shot showed that he had facial
hair, a mustache and goatee, at the time he was arrested.
Additionally, Carey testified that the photograph of Sims in
the emergency room that was not part of the record was shown
to him by itself and not as part of a photographic lineup:
Q: And you indicated now that there was another picture
that you were shown, a single picture you were shown,
in the emergency room?
A: I was shown that in the emergency room. If I recall,
my—my parents were in the emergency room, but I’m
not sure if they were in there when they showed me
this picture. They did show me a picture in the emer-
gency room.
Carey stated the lighting in the parking lot was “some-
what—subdued would be the word I’d use, somewhat faint.”
Carey also testified that he was not wearing his glasses the
night of the shooting, although his vision was not so poor that
he was required to wear them to drive.
Defense counsel impeached Carey regarding inconsisten-
cies in his description of the assailant. The defense pointed out
that the description of the assailant included that he had short
hair or was bald. However, Sims later testified that his hair was
not short or shaved but was curly and longer at the time he
was arrested. The defense pressed Carey on his description of
the shoes worn by the assailant. Carey had described the
assailant as wearing black combat boots; Sims later testified
that he was wearing black and white Nike sneakers. The
defense also noted that Carey had indicated the assailant was
wearing black pants, but Sims testified that he was wearing
blue jeans. The defense asked Carey if there was a hood on the
coat, to which Carey responded that his memory had im-
8 No. 18-1573
proved over time on the matter: “I recall—I did not recall it at
the time. Later on I did recall a hood, and it was part of the
way up.” During direct examination Sims testified that he was
wearing an Orlando Magic baseball cap when he was arrested.
Furthermore, the defense pointed out that the distinct patch
detailed in direct examination and used to identify Sims’s coat
was never mentioned in his description of the assailant.
After Carey stepped down from the witness stand the
defense moved for a mistrial based upon the testimony elicited
from Carey:
[Carey] testified that while he was in the emer-
gency room immediately after being shot that he
was shown a single photograph of the defen-
dant. The defendant would indicate to the Court
that the type of identification process, being a
single photograph, is prejudicial and suggestive
and clearly taints any subsequent identification
that may have been made in this
matter … Based on that single photographic
identification, I believe that the in-court identifi-
cation was tainted by the suggestive nature of
the initial identification.
The court denied the motion stating there was no evidence
from the state or defendant that indicated a single photograph
was ever shown to the victim. The court stated the only way it
could be assumed that a single photograph lineup occurred
was by accepting everything Carey said was true, which was
not required. The court also found the in-court identification
No. 18-1573 9
sufficient to overcome any undue suggestiveness of a single
photograph lineup.1
Closing argument took place on August 24, 1994. The
prosecution leaned heavily, almost exclusively, on Carey’s
testimony: “He has identified as the shooter this defendant,
Mack Sims, and he has never hesitated a bit in that identifica-
tion. And that, of course, is what this case is about is the
validity of that identification.” The jury found Sims guilty of
attempted murder.
C. The Sentencing and Appeal Process
Sims was sentenced to 35 years’ imprisonment on Decem-
ber 1, 1994. The defense filed a motion for a new trial on
December 29, 1994, arguing “the Court erred when it allowed
the identification evidence of Shane Carey in that it was tainted
1
It is worth noting at this point that gleaning from the record precisely
when photographic lineups were conducted and their result is difficult. It
appears the first occurred on the night of the shooting. Carey could not
recall this lineup taking place, had glass in his eyes (from the shooting
because the shot came through the window), and no record of the lineup
appeared in the police report, but Faigh testified that Carey identified the
picture of Sims as the shooter. The second lineup occurred a day or two
later in the hospital and Carey merely indicated that the picture of Sims
“looked like” the shooter. Carey also testified he was shown a single picture
of Sims in the hospital. Although he was unable to recall precisely when
this occurred, he remembered his parents were present in the room. The
third lineup took place two weeks later and its result is not indicated in the
record. Carey simply testified, “about two weeks later ... I talked to John
Faigh—and he put me under quite a bit of stress when he asked me. He was
asking me a number of questions that irritated me to no end to say the least.
And I don’t know what he was trying to accomplish, but I was not happy.”
A fourth lineup occurred with Wicks and resulted in a positive identifica-
tion. Finally, a fifth lineup occurred in which Carey admitted he was
thrown off by a picture of Sims that included facial hair.
10 No. 18-1573
by an impermissibly suggestive pre-trial viewing of a picture
of the Defendant by Mr. Carey.” On July 15, 1995, the trial
court dismissed the motion. Its response in full was: “The court
has examined this alleged error and having further examined
its notes, now determines that it believes that no error was
committed or that no impermissible suggestive identification
took place and that there is no merit to specification no. 1.”
Sims did not fare much better on appeal. In an unpublished
opinion, the Court of Appeals of Indiana opined that the
“[e]xtra-judicial exhibition of a single photograph to a victim
is an unduly suggestive identification procedure.” However,
the court noted the strength of Carey’s in-court testimony, in
particular that he looked Sims directly in the eye, noticed the
light-colored patch of skin under one eye, and Sims was only
two or three feet away from Carey when he was shot. These
factors considered with the identification of Sims in photo-
graphic lineups convinced the court that the totality of the
circumstanced provided a sufficient basis, independent of the
improper photograph display, to support the admissibility of
the in-court identification of Sims.
D. Post-Conviction Proceedings
On February 8, 2012, in what was supposed to be an
evidentiary hearing regarding a post-conviction relief petition
filed by Sims, the information that formed the basis of this case
was revealed. Graham Polando, a deputy prosecuting attorney
for the state of Indiana stated in open court the following: “I
consulted with Judge [Charles] Wicks who was the trial deputy
[for Sim’s attempted murder trial in 1994], he asked me not to
disclose what he told me, but he indicated that the victim in
this case identified the … defendant, Mr. Sims, only after
hypnotism.” This fact was never disclosed to defense counsel.
No. 18-1573 11
On June 8, 2012, the Elkhart County Superior Court held an
evidentiary hearing to address the hypnotism issue. Carey
testified that when viewing the lineup administered by
detective Faigh the day after the shooting, he merely stated the
individual “looked like” the assailant because “at the time [he]
was not extremely sure.” Carey also testified that the prosecut-
ing attorney in the case, Wicks, brought up the idea of hypno-
sis saying “they could put [him] under hypnosis … but
[indicated] there might be a problem in court in the future.”
Carey responded that he did not have a problem with any
future legal issues regarding the hypnosis so long as he was
able to recall the person who shot him. Carey also testified that
Wicks set up the appointment and the state paid for it.
Carey testified that he attended one session of hypnosis in
which he “fell asleep … [and] literally entered a dream state in
which I … recall[ed] the shooting itself. And during that time
I had another opportunity to uh, see the person that shot me.”
Sims’s attorney then asked Carey:
Q: Okay. So it was really only after this hypnosis that you
were sure of the person was that shot you?
A: Yeah.
Carey indicated the session took place months before trial
“when [Wicks] and I first started talking about who the
perpetrator was.” After the session, Wicks created another
photographic lineup and this time Carey was able to identify
Sims due to the skin coloration on the face of the assailant that
Carey noticed while reliving the night of the shooting under
hypnosis. In fact, Carey stated that only “after the hypnotism
the birthmark really stood out.”
The court reconvened the hearing on June 12 and Charles
Wicks, the prosecutor in Sims’s case and now a Judge for the
12 No. 18-1573
Elkhart County Superior Court, testified. He stated that he
could not recall whether Carey disclosed he had been hypno-
tized. A few breaths later Wicks defended not disclosing the
hypnotism asserting it was not exculpatory in nature because
Carey never wavered in his identification of Sims as the
assailant. Wicks then testified that he gave Carey the informa-
tion of the individual that performed the hypnotism because
even though Carey had given a “fairly complete summary of
what happened to him that evening, he said he would like to
be able to recollect the evening better.” The hypnotist was
George Atkins, a licensed physician’s assistant who Wicks
knew from Kiwanis Club and had used in the past to help
personal injury clients recall traumatic events.
Later in the hearing the court questioned deputy prosecut-
ing attorney Polando regarding the statement Wicks made to
him, asking whether the following quotation was correct: “‘I
never told Jim Stevens’ (meaning Deputy Public Defender
Stevens), ‘that the victim was … only able to identify Mr. Sims
after he was hypnotized.” Polando confirmed this was correct,
and added that Wicks also told him not to tell anyone. When
Wicks retook the stand he stated he did not recall saying this
to Polando.
On September 6, 2012, the Elkhart Superior Court entered
an order denying Sims’s Second Amended Petition for Post-
Conviction Relief. In its order, the court identified the main
issue as “whether Carey was able to sufficiently identify
Petitioner before hypnosis.” The court then discounted Wicks’
statement to Polando that Carey was only able to identify Sims
after hypnosis because Wicks “had not had time to consider the
case before speaking with DPA Polando.” The court also gave
weight to the fact that other evidence contradicted this state-
ment. The court noted that Officer Lerner testified that Carey
No. 18-1573 13
could identify the assailant from the beginning and that his
description of the assailant matched Sims. The court then cited
with approval the photographic lineup presented to Carey the
day after the shooting in which Carey noted the picture of Sims
“looked like” the assailant. The court concluded “[f]rom the
record of the case, Carey was able to identify the Petitioner
well before hypnosis.”
After outlining the test established by Brady v. Maryland,
373 U.S. 83, 87 (1963), the court noted the evidence was
favorable to the defense, at a minimum as impeaching evi-
dence, that would have been beneficial to the defense to
discredit the state’s only eye-witness. The court then immedi-
ately concluded that the evidence was not material because
there was not a reasonable probability that disclosure would
have changed the result of the proceeding. It was persuaded
because the defense vigorously cross-examined Carey at trial
and the Indiana Rules of Evidence only rendered inadmissible
testimony of a witness as to matters recalled only through
hypnosis. Thus, the court reasoned, Carey’s testimony would
not have been found inadmissible because Carey could
sufficiently identify his assailant prior to hypnosis. The court
also noted that Carey never identified anyone other than Sims
from a photographic lineup and that his description of the
assailant did not substantially change after hypnosis.
On July 15, 2013, the Court of Appeals of Indiana affirmed
this decision. The court noted that under Indiana law, evidence
derived from a hypnotically entranced witness should be
excluded because the evidence is affected by confabulation, a
process that causes the subject to fill in memory gaps with
fantasy. The court also noted that because the subject is
confident that the recalled memories are based in fact and
accurate, the witness will likely be impervious to cross-exami-
14 No. 18-1573
nation. However, the court held that the state had carried its
burden of demonstrating by clear and convincing evidence the
witness’s in-court identification had a factual basis independ-
ent of the hypnosis and therefore would have been admissible
under the Indiana Rules of Evidence. The court noted that
Carey testified at trial that he was able to look directly into the
face and eyes of his assailant and that Carey’s description of
Sims the night of the shooting matched Sims. The court also
noted Carey identified Sims three times in photographic
lineups before he underwent hypnosis. The court found that
Carey’s identification had a sufficient pre-hypnosis foundation
to have been admissible because Carey “was subjected to
vigorous cross-examination regarding his numerous identifica-
tions of Sims.” The court also gave weight to Carey’s testimony
at the evidentiary hearing that the hypnosis did not help him
identify Sims, but rather made him “extremely sure” of his
identification.
After the Indiana Supreme Court denied relief, Sims filed
a petition for a writ of habeas corpus in federal court. The
district court found that the Indiana Court of Appeals’ decision
was neither contrary to, nor involved an unreasonable applica-
tion of, clearly established federal law. The court also found
that the state court’s decision was not based on an unreason-
able determination of the facts. Accordingly, the district court
denied habeas relief, but certified its appealability pursuant to
28 U.S.C. § 2253(c), finding that reasonable jurists could differ
on whether the post-conviction relief court erred in finding
relief was not warranted.
II. ANALYSIS
We review de novo a district court’s denial of a petition for
writ of habeas corpus. Carter v. Thompson, 690 F.3d 837, 843 (7th
No. 18-1573 15
Cir. 2012). This review is governed by the Anti-terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). The statute
significantly limits the scope of our review; “habeas relief
cannot be granted for persons in custody pursuant to a
judgment of a state court unless the adjudication of the claim:
‘(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or
(2) 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.’” Czech v. Melvin, 904 F.3d 570, 573
(7th Cir. 2018) (quoting 28 U.S.C. § 2254(d)). A federal court
may issue a writ of habeas corpus under the “contrary to”
clauses of AEDPA if the state court applied a rule different
from law set forth in Supreme Court precedent, or if it decides
a materially indistinguishable case differently than the Su-
preme Court. Bell v. Cone, 535 U.S. 685, 694 (2002) (citing
Williams v. Taylor, 529 U.S. 362, 405–406 (2000) (O’Connor, J.,
concurring). A state court decision is an “unreasonable
application” if it correctly identifies the governing legal rule,
but applies it unreasonably. Williams v. Taylor, 529 U.S. 362,
408–409 (2000).
On appeal, Sims’s principal argument is that the state
withholding the evidence that Carey was hypnotized prior to
trial violated Sims’s constitutional rights as established in
Brady. Under Brady, a defendant’s due process rights are
violated if the state withholds favorable evidence from the
defense that is material to the defendant’s guilt or punishment.
Brady, 373 U.S. at 87. The state court found, and the parties do
not dispute, the hypnosis evidence would have been favorable
to the defendant and it was not disclosed by the state. We
agree. Therefore, the only issue before us is whether the
16 No. 18-1573
Indiana court’s decision, that suppression of evidence that the
state’s star witness was hypnotized was not material under
Brady, is contrary to or an unreasonable application of clearly
established federal law.2 Because the Indiana court’s decision
was both, we reverse the district court and grant the writ.
A. “Clearly Established” Federal Law
The Supreme Court has clearly established that strong and
non-cumulative impeachment evidence related to an important
trial witness is material under Brady. A new trial is not
“automatically require[d] … whenever a combing of the
prosecutors’ files after the trial has disclosed evidence possibly
useful to the defense but not likely to have changed the verdict.
A finding of materiality of the evidence is required under
Brady.” Giglio v. United States, 405 U.S. 150, 154 (1972) (internal
citations and quotations omitted). Evidence is material under
Brady if “there is a reasonable probability that, had the evi-
dence been disclosed, the result of the proceeding would have
been different.” Kyles v. Whitley, 514 U.S. 419, 433. A “reason-
able probability” exists if the suppression of the favorable
evidence “undermines confidence in the outcome of the trial.”
Id. (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).
Nearly half a century ago, the Supreme Court held “[w]hen
the reliability of a given witness may well be determinative of
guilt or innocence, nondisclosure of the evidence affecting
2
Although the Court must generally discuss whether the error was
harmless in its review of a petition for a writ of habeas corpus, the Supreme
Court has made it clear that such an inquiry is unnecessary in Brady cases
because the materiality standard contemplated by Brady is a higher burden
on defendants than harmless error. Kyles v. Whitley, 514 U.S. 419, 435–36.
Thus, if a petitioner establishes materiality under Brady, harmless error has
been established and no further analysis is necessary.
No. 18-1573 17
credibility” justifies a new trial under Brady. Giglio, 405 U.S. at
154. In Giglio, the defendant was convicted of passing forged
money orders. Id. at 151. The prosecution’s case centered
around the testimony of the defendant’s co-conspirator, Robert
Taliento, who was the only witness able to link the defendant
to the crime. Id. Taliento confessed and described the scheme
to a grand jury. Id. At trial, Taliento testified and identified the
defendant as the instigator of the scheme. Id. Defense counsel
vigorously cross-examined Taliento seeking to impeach him
regarding a possible arrangement for prosecutorial leniency if
he agreed to testify. Id. Taliento testified that no agreement had
been reached, but the defendant later discovered he agreed to
testify before the grand jury if the state agreed not to prosecute
him. Id. at 151–52. Even though the impeachment evidence
only went to his credibility, the Court found the information
was material under Brady. Id. at 154.
Conversely, cases in which the Supreme Court has found
the suppression of impeachment evidence was not material
under Brady are easily distinguishable. For example, in Turner,
the Court found suppressed impeachment evidence was not
material because it was “largely cumulative of impeachment
evidence petitioners already had and used at trial,” and
because the impeachment evidence only involved minor
witnesses. Turner v. United States, 137 S. Ct. 1885, 1894 (2017).
Thus, the Supreme Court has long recognized that suppres-
sion of strong and non-cumulative evidence related to the
credibility of an important witness is material under Brady, at
least when the witness’s testimony is critical to the prosecu-
tion’s case. See also Kyles, 514 U.S. at 441–42 (holding that the
state’s case relied heavily on the testimony of eyewitnesses
who identified the defendant as the murderer, therefore failure
to disclose impeachment evidence related to those witnesses
18 No. 18-1573
was material under Brady) and Wearry v. Cain, 136 S. Ct. 1002,
1007 (2016) (withholding impeachment evidence of state’s star
witness violated Brady).
B. “Unreasonable Application of” and “Contrary to”
Controlling Precedent
A close reading of the Indiana Court of Appeals’ decision
shows where that court went astray from the law established
by the Supreme Court of the United States. The state court
actually acknowledged that “[e]vidence derived from a
hypnotically entranced witness is inherently unreliable as not
having probative value and is therefore inadmissible.” 990
N.E.2d 523, 2013 WL 3526759 at *4 (Ind. Ct. App. 2013), citing
Rowley v. State, 483 N.E.2d 1078, 1081 (Ind. 1985). Rowley, in
turn, followed Strong v. State, 435 N.E.2d 969, 970 (Ind. 1982),
which reviewed case law from around the country in rejecting
hypnotically enhanced testimony. Rowley and Strong had gone
on to hold that a witness who has undergone hypnosis may
testify to identify a wrongdoer in a criminal trial, nevertheless,
if the prosecution can show by clear and convincing evidence
that the in-court identification has a sufficient independent
factual basis.
In Sims’s case, the Indiana Court of Appeals veered away
from the Brady materiality standard. Instead of deciding
whether the concealed evidence was important enough to
undermine confidence in the result of the trial without it, the
state court analyzed whether Carey’s in-court identification of
Sims had a sufficient independent factual basis so as to have
been admissible. We assume that the finding of admissibility
was correct under state law. But the state court then made the
leap that was contrary to, and an unreasonable application of,
Brady and its progeny: it concluded that because Carey’s
No. 18-1573 19
testimony would still have been admissible, “it is not reason-
ably probable that the outcome of Sims’s trial would have been
different had Carey’s hypnosis been disclosed.”
That was a clear error. Brady’s materiality standard is not an
admissibility test. It requires the court to gauge the potential
effects on the outcome of the trial if the concealed information
had been available to the defendant. See Smith, 56 U.S. at
75–76; Kyles, 514 U.S. at 453–54; Strickler, 527 U.S. at 289–90.
The Indiana court did identify Brady’s overarching rule, but
failed to correctly apply, or even recognize, the materiality
standard outlined by the Supreme Court. Courts must consider
the overall strength of the prosecution case, the importance of
the particular witness’s credibility to the prosecution case, the
strength of the concealed impeachment material, and how the
concealed material compares to other attacks the defense was
able to make on the witness’s credibility. See Kyles, 514 U.S. at
441, 445, 451, 454; Giglio, 405 U.S. at 154–55; Smith, 565 U.S. at
76; Wearry, 136 S. Ct. at 1006–07.
Giglio, Kyles, Wearry, and Smith all involved concealment of
strong and non-cumulative impeachment evidence for the
witnesses whose credibility was critical to the prosecution
cases. They provide a body of clearly established law showing
when impeachment evidence is material under Brady. Turner
and Strickler, by contrast, show that concealed impeachment
evidence may not be material when the prosecution case is
strong apart from the witness in question and when the
concealed impeachment evidence would have added little
weight to the defendant’s attacks on the witness’s credibility.
Concealing the hypnosis of Carey in this case falls on the
material side of the line mapped by these Supreme Court cases.
Without Carey’s identification of Sims as the shooter, the
20 No. 18-1573
prosecution had no case. No physical evidence tied Sims to the
shooting. His presence by the dumpster shortly after the
shooting was suspicious, of course, but far short of what would
have been needed to convince a jury to convict.
The fact that Carey had been hypnotized would have
undermined his credibility and changed his cross-examination
quite dramatically. As the Supreme Court explained in Rock v.
Arkansas, 483 U.S. 44, 59–60 (1987), there are several serious
problems that undermine the accuracy and credibility of
hypnotically enhanced testimony:
Responses of individuals to hypnosis vary
greatly. The popular belief that hypnosis guar-
antees the accuracy of recall is as yet without
established foundation and, in fact, hypnosis
often has no effect at all on memory. The most
common response to hypnosis, however, ap-
pears to be an increase in both correct and
incorrect recollections. Three general character-
istics of hypnosis may lead to the introduction of
inaccurate memories: the subject becomes
“suggestible” and may try to please the hypno-
tist with answers the subject thinks will be met
with approval; the subject is likely to “confabu-
late,” that is, to fill in details from the imagina-
tion in order to make an answer more coherent
and complete; and, the subject experiences
“memory hardening,” which gives him great
confidence in both true and false memories,
making effective cross-examination more diffi-
cult.
No. 18-1573 21
Essentially, “[n]ot only do hypnotized witnesses find it
difficult to distinguish their original memories from those
brought out under hypnosis, but they also tend to become
more confident about their recall despite the fact that it might
contain false recollections.” Edie Greene, Kirk Heilbrun,
William H. Fortune, & Michael T. Nietzel, Wrightsman’s
Psychology and the Legal System 140 (6th ed. 2007); see also
Steven Jay Lynn, Elza Boycheva, Amanda Deming, Scott O.
Lilienfeld, & Michael N. Hallquist, Forensic Hypnosis: The
State of the Science, in Psychological Science in the Courtroom:
Consensus and Controversy, 85 (Jennifer L. Skeem, Kevin S.
Douglas, & Scott O. Lilienfeld 2009) (“23 studies have shown
that hypnosis either increases confidence relative to a
nonhypnotic group, or participants confidently report inaccu-
rate memories of events they earlier denied occurred when
they were not hypnotized”).
The concealed hypnosis thus explains Carey’s puzzling
statement at trial that his memory of the incident actually
improved over time.3 But more fundamentally, it calls into
question everything Carey said at trial. Based on the Supreme
Court’s view of hypnosis, Carey would not know what he was
able to recall independent of the hypnosis, nor what he was
able to recall because of the hypnosis, or whether any of his
testimony was true or based on fantasy. This is made more
troubling by the fact that Carey provided significantly more
information at trial than he did any time before trial. Carey
discussed in detail looking the assailant square in the eyes, that
he remembered witnessing a small patch on the assailant’s
jacket, that he remembered a small birthmark on the assailant’s
3
As noted above, Carey stated at trial, “I recall—I did not recall it at the
time. Later on I did recall a hood, and it was part of the way up.”
22 No. 18-1573
face. As the defense pointed out at trial, none of these details
were in Carey’s description to Officer Lerner nor did they
appear in the police report. It is reasonable to infer the jury
found these details persuasive without knowing that Carey’s
recollection of them might have been due entirely to the
hypnosis session.
The “memory hardening” effect of hypnosis can explain
Carey’s admission during post-conviction proceedings that he
was sure of who the person was who shot him only after being
hypnotized. The effect Carey’s increased confidence likely had
on the jury helps to undermine our confidence in the verdict.
Decades of research confirms that the confidence with which
eyewitnesses identify criminal defendants can be a powerful
predictor of verdicts regardless of the accuracy of the identification.
The more confident the eyewitness is in his identification, the
more likely the jury is to believe that the identification is
accurate and to convict the defendant. See Brian L. Cutler,
Steven D. Penrod, & Thomas E. Stuve, Juror Decision Making
in Eyewitness Identification Cases, 12 Law and Human
Behavior 41 (1988); Steven G. Fox & H.A. Walters, The Impact
of General versus Specific Expert Testimony and Eyewitness
Confidence upon Mock Juror Judgment, 10 Law and Human
Behavior 215 (1986); Michael R. Leippe, Andrew P. Manion, &
Ann Romanczyk, Eyewitness Persuasion: How and How Well Do
Fact Finders Judge the Accuracy of Adults’ and Children’s Memory
Reports?, 63 Journal of Personality & Social Psychology 181
(1992); Lynn et al. at 85; Gary L. Wells, What Do We Know About
Eyewitness Identification?, 48 American Psychologist 553, 564
(1993); Gary L. Wells, R.C.L. Lindsay, & Tamara J. Ferguson,
Accuracy, Confidence, and Juror Perceptions in Eyewitness Identifi-
cation, 64 Journal of Applied Psychology 440 (1979).
No. 18-1573 23
It is not difficult to imagine what Sims’s lawyer could have
done at trial with the knowledge that Carey had been hypno-
tized. The known effects of hypnosis could explain Carey’s
confidence, his claim that his memory of the shooting had
improved over time, and the otherwise benign changes in his
descriptions of the shooter. Reasonable judges cannot be
confident that, if the jury had known that Carey had been
hypnotized before he identified Sims at trial, they would have
found his identification beyond reasonable doubt.
Given the well-known problems that hypnosis poses for
witnesses’ memories, we can be confident that Carey’s identifi-
cation testimony would have been subjected to withering
cross-examination. As noted, the prosecution’s case against
Sims depended completely on Carey’s credibility, which the
suppressed hypnosis evidence would have severely under-
mined. The evidence would have cast doubt for the jury not
only on Carey’s in-court identification, but also on Carey’s
credibility as a witness more generally, including the accuracy
of his prior identifications of Sims. The jury saw Carey identify
Sims only once, in court. The prior identifications were heard
only secondhand. If the jurors had known that Carey needed
to be hypnotized to make the in-court identification, they
would have been less likely to believe Carey was confident that
Sims was his assailant, and therefore that his identification was
accurate. From there and without the ability to observe Carey
make his prior, untainted identifications, the jury could easily
have questioned Carey’s overall credibility as an eyewitness.
The Indiana appellate court noted that Carey was able to
describe the clothing and physical attributes of the assailant
who matched Sims’s clothing and physical attributes when he
was discovered on the scene. However, the trial court tran-
script illustrates the defense cross-examined Carey vigorously
24 No. 18-1573
and pointed out several instances in which his description of
the assailant did not match Sims’s clothing or physical attrib-
utes the night of the incident. The undisputed details merely
provide the shooter was a black male with a large build
wearing a three quarter length coat. This is not the kind of
identification that instills confidence especially in a case that
the prosecution described as being all about “the validity of
Carey’s identification.”
The state court noted Carey identified Sims three times in
photographic lineups before hypnosis. Carey had glass in his
eyes and did not recall the first lineup and was unable to
identify the shooter in a lineup two days later. Furthermore,
significant doubt was cast on these lineups by the fact that
Carey testified that he was initially only shown a single
picture. The defense moved for a mistrial, which was denied,
and the issue was affirmed on appeal. However, the Indiana
Court of Appeals affirmed this decision because they were
convinced the totality of the circumstances constituted a
sufficient independent basis to cure any unduly suggestive
procedures. But the suppressed evidence of hypnosis now
brings this ruling into question.
The dissent assails our opinion by asserting that Carey
never wavered in his identification of Sims. This does not
explain why Wicks felt it necessary to take the risk of setting
up a hypnosis session for Carey without disclosing it. Nor does
it appear to take into account the instances in which Carey
equivocated. Furthermore, the only indication as to when the
hypnosis session took place is Carey’s testimony at the post-
conviction evidentiary hearing that it was months before trial
when he and Wicks “first started talking about who the
perpetrator was.”
No. 18-1573 25
Finally, these problems with hypnosis undercut the Indiana
court’s final reason for refusing post-conviction relief: Carey’s
testimony indicated he was able to identify the assailant, but
hypnosis was able to make him “extremely sure.” No one
knows what effect the hypnosis had on Carey and it also belies
the record for reasons discussed above.
Considering the overall weakness of the prosecution case
without Carey, the importance of his testimony, the explosive
strength of the concealed hypnosis evidence, and the relatively
mild impeachment of Carey that the defense managed at trial,
habeas relief is required. The post-Brady cases involving strong
concealed impeachment material for key prosecution wit-
nesses—Smith, Giglio, Wearry, and Kyles—show beyond
reasonable dispute that the prosecutor’s deliberate conceal-
ment of the hypnosis evidence undermined confidence in the
verdict that has kept Sims in prison for more than twenty
years.
III. CONCLUSION
Given the suppression of the evidence was clearly a
violation under Brady, the writ of habeas corpus should have
been granted. Therefore, we reverse and remand the case to the
district court with instructions to grant the writ of habeas
corpus.
26 No. 18-1573
BARRETT, Circuit Judge, dissenting. I dissent from the
majority opinion because it fails to give the Indiana Court of
Appeals the deference required by 28 U.S.C. § 2254(d). Under
that provision, a federal court may grant habeas relief only if
the state court proceedings (1) “resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States”; or (2) “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.” The majority holds that the Indiana Court of
Appeals’ decision satisfies § 2254(d)(1). I disagree. Even
though I think that the undisclosed evidence of Carey’s
hypnosis constitutes a Brady violation, it was neither contrary
to, nor an unreasonable application of, clearly established
federal law for the Indiana Court of Appeals to conclude
otherwise.
I.
The Indiana Court of Appeals’ decision to deny Sims’s
petition for post-conviction relief was not “contrary to”
clearly established law as determined by the Supreme Court
of the United States. A decision is “contrary to” clearly
established federal law if it (1) “applies a rule different from
the governing law set forth in our cases” or (2) “decides a case
differently than [the Supreme Court] ha[s] done on a set of
materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685,
694 (2002). To apply this standard, we must first consider
what rule has been clearly set forth in the Supreme Court’s
caselaw.
The three elements of a Brady violation have been clearly
established, including the materiality prong at issue here. See,
No. 18-1573 27
e.2727g., Goudy v. Basinger, 604 F.3d 394, 400 (7th Cir. 2010).
Evidence is material if there is “a reasonable probability that,
had the evidence been disclosed, the result of the proceeding
would have been different.” Turner v. United States, 137 S. Ct.
1885, 1893 (2017) (internal quotation marks and citation
omitted). A “reasonable probability” is one that “undermines
confidence in the outcome of the trial.” Kyles v. Whitley, 514
U.S. 419, 434 (1995) (internal quotation marks omitted)
(quoting United States v. Bagley, 473 U.S. 667, 678 (1985)). In
addition, the holding in Giglio v. United States, 405 U.S. 150,
154 (1972), that impeachment evidence “falls within the Brady
rule,” is likewise clearly established. See Bagley, 473 U.S. at
676; Collier v. Davis, 301 F.3d 843, 848 (7th Cir. 2002).
The majority’s first error comes in its description of the
general rule that Brady establishes with respect to
impeachment evidence. The Supreme Court has not held, as
the majority would have it, that “‘[w]hen the reliability of a
given witness may well be determinative of guilt or
innocence, nondisclosure of the evidence affecting credibility’
justifies a new trial under Brady.” Maj. Op. at 18 (emphasis
added) (citing Giglio, 405 U.S. at 154). The italicized phrase is
the majority’s; the full sentence from Giglio is this: “[w]hen the
reliability of a given witness may well be determinative of
guilt or innocence, nondisclosure of the evidence affecting
credibility falls within [Brady’s] general rule.” See Giglio, 405
U.S. at 154 (quotation omitted). Again, that general rule asks
whether the undisclosed evidence is material. And
materiality—whether the evidence at issue is exculpatory or
impeaching—is always a fact-intensive inquiry, as the
sentences in Giglio immediately following the one that the
majority quotes make clear:
28 No. 18-1573
When the reliability of a given witness may well be
determinative of guilt or innocence, nondisclosure
of evidence affecting credibility falls within [Brady’s]
general rule. We do not, however, automatically require
a new trial whenever a combing of the prosecutors’ files
after the trial has disclosed evidence possibly useful to the
defense but not likely to have changed the verdict. A
finding of materiality of the evidence is required under
Brady.
Id. at 154 (emphasis added) (internal quotation marks,
citations, and alteration omitted). In other words,
impeachment evidence related to a key witness is material
only if it undermines confidence in the verdict. See id. at 154–
55 (suppressed evidence of bias that called into question a key
witness’s entire testimony was material); see also Kyles, 514
U.S. at 441–42 (undisclosed contradictory statements by a key
witness that arguably pointed to a suspect other than the
defendant were material because they “substantially
reduced” or “destroyed” the witness’s value). To be sure,
impeachment evidence related to a key witness is more likely
to be material than impeachment evidence related to a bit
player. But contrary to the majority’s suggestion, the Supreme
Court has never announced a hard-and-fast rule requiring a
new trial when non-cumulative evidence related to the
credibility of an important witness is suppressed. Even when
it comes to a star witness, Giglio and its progeny require courts
to evaluate whether the suppressed evidence is in fact
material—not merely to assume it.
The majority’s second error lies in its assertion that the
Indiana Court of Appeals confused the Brady materiality
standard with the Indiana Rules of Evidence. The Supreme
No. 18-1573 29
Court has explained that “[a] federal habeas court may issue
the writ under the ‘contrary to’ clause if the state court applies
a rule different from the governing law set forth in our
cases….” Bell, 535 U.S. at 694. According to the majority, the
state court made that very error here—it says that the state
court concluded that the suppressed evidence was not
material because Carey’s identification would still have been
admissible under state law. Maj. Op. at 20. But that
fundamentally misreads the state court opinion. The Indiana
Court of Appeals did explain that “[e]vidence derived from a
hypnotically entranced witness” is inadmissible under state
law unless “the State … demonstrate[s] by clear and
convincing evidence that the witness’s ‘in-court identification
has a factual basis independent of the hypnotic session.’” Ind.
Ct. App. Op. at 7–8 (quoting Rowley v. State, 483 N.E.2d 1078,
1081 (Ind. 1985)). Yet it did not analyze Sims’s Brady claim
under that standard. When it moved to the Brady issue, the
court squarely identified and applied Brady.
The Indiana Court of Appeals began by describing the trial
court’s post-conviction decision, which held that while the
evidence of hypnosis satisfied the first two prongs of Brady
because it was both favorable and suppressed, it failed to
satisfy the third prong because it was not material. See Ind. Ct.
App. Op. at 8. The trial court fully recited the Brady standard,
including the rule that “[e]vidence is material if there is a
reasonable probability that disclosure would have changed
the result in the proceeding.” After discussing the evidence in
detail, the trial court concluded: “The evidence presented
provides sufficient confidence in the verdict. The record
reveals that Carey was able to identify Defendant before
hypnosis. Thus the Court finds that the hypnosis disclosure
30 No. 18-1573
would not have changed the outcome, and its nondisclosure
did not amount to a Brady violation.”
The Indiana Court of Appeals reviewed this reasoning,
setting much of it forth verbatim, and agreed that the
evidence was not material given the counterbalancing
strength of the admissible identification: Carey got a good
look at the assailant, gave a detailed description that matched
Sims, and identified Sims in multiple pre-hypnosis photo
lineups. It concluded that “the findings of fact and the record
as a whole support the post-conviction court’s determination
that it is not reasonably probable that the outcome of Sims’s
trial would have been different had Carey’s hypnosis been
disclosed.” Ind. Ct. App. Op. at 10. That is the Brady standard.
See Turner, 137 S. Ct. at 1893 (explaining that evidence is
material if there is “a reasonable probability that, had the
evidence been disclosed, the result of the proceeding would
have been different” (quotation omitted)). The majority is
plainly correct that “Brady’s materiality standard is not an
admissibility test,” Maj. Op. at 20, but neither the Indiana
Court of Appeals nor the trial court treated it like one.
A state court decision is “contrary to” clearly established
law “if the state court applies a rule different from the
governing law set forth in [the Supreme Court’s] cases, or if it
decides a case differently than [the Supreme Court] ha[s]
done on a set of materially indistinguishable facts.” Bell, 535
U.S. at 694. Here, there is no question that the state court
applied the Brady materiality standard, and there is no
attempt to identify a Supreme Court case with materially
indistinguishable facts. Thus, the state court decision was not
“contrary to” clearly established federal law.
No. 18-1573 31
II.
The majority’s stronger argument is that the Indiana Court
of Appeals unreasonably applied Brady’s materiality prong to
this set of facts. Section 2254(d)(1) prohibits us from
approaching this question de novo; thus, we cannot simply
ask whether the suppressed evidence of hypnosis creates a
reasonable probability of a different result. Instead, we must
ask the question that § 2254(d)(1) demands: whether it was
unreasonable for the state court to conclude that evidence of
hypnosis did not create a reasonable probability of a different
result.
This is a high bar: the state court’s application of federal
law “must be objectively unreasonable, not merely wrong;
even clear error will not suffice.” Woods v. Donald, 135 S. Ct.
1372, 1376 (2015) (per curiam) (internal quotation marks and
citation omitted). A prevailing habeas petitioner must “show
that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Harrington v. Richter, 562 U.S. 86, 103 (2011); see also Kidd v.
Lemke, 734 F.3d 696, 703 (7th Cir. 2013) (“We must deny the
writ if we can posit arguments or theories that could have
supported the state court’s decision, and if fairminded jurists
could disagree about whether those arguments or theories are
inconsistent with Supreme Court holdings.”). The Indiana
Court of Appeals’ conclusion that the evidence of hypnosis
was not material—and thus that failure to disclose the
evidence did not amount to a Brady violation—does not rise
to that level.
32 No. 18-1573
The majority finds fault in multiple aspects of the Indiana
Court of Appeals’ reasoning. Many of its concerns, however,
are objections to the facts found by that court. And without
clear and convincing evidence that the state court was wrong,
its factual determinations are not open for debate. See 28
U.S.C. § 2254(e)(1) (“[A] determination of a factual issue made
by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of
correctness by clear and convincing evidence.”). 1
Notably, the majority almost entirely discounts the facts
that support the Indiana Court of Appeals’ conclusion that the
suppressed evidence was immaterial. The state court found
that Carey looked directly into the face of Sims in fair, outside
lighting at the time of the shooting; offered a detailed
description of Sims on-scene; identified Sims in a photo array
at the hospital emergency room; and identified Sims again
two days later in a photo array at the prosecutor’s office. The
description and identifications are crucial because they all
occurred well before Carey underwent a session of hypnosis
and thus bolster the reliability of the in-court identification
despite the evidence of hypnosis.
1 Though the majority does not hold, and Sims does not argue, that
the state court decision was “based on an unreasonable determination of
the facts” under § 2254(d)(2), some of the language in the opinion seems
to at least raise the question. It is therefore worth noting that
unreasonableness under § 2254(d)(2) is a very stringent standard. A
factual determination is unreasonable if it is “arbitrary,” Ben-Yisrayl v.
Buss, 540 F.3d 542, 549 (7th Cir. 2008), but not if reasonable minds could
disagree on the finding in question, Wood v. Allen, 558 U.S. 290, 301 (2010).
In addition, we have held that Ҥ 2254(e)(1) provides the mechanism for
proving unreasonableness.” Ben-Yisrayl, 540 F.3d at 549.
No. 18-1573 33
The majority is particularly skeptical of the Indiana Court
of Appeals’ finding that Carey identified Sims three times in
photo lineups before hypnosis. Maj. Op. at 25–26. It claims
that “significant doubt was cast on these lineups by the fact
that Carey testified that he was initially only shown a single
picture.” Id. But there was a factual dispute on this point that
the Indiana Court of Appeals resolved: it concluded that
Carey was presented with a picture lineup in the hospital
emergency room. 2 The majority has not attempted to
demonstrate by clear and convincing evidence that this
finding is wrong—nor could it, because Sims has not
attempted to do so. Thus, we must accept the state court’s
finding that Carey positively identified Sims in multiple pre-
hypnosis photo lineups.
Relatedly, the majority also suggests that Carey was able
to identify Sims only after hypnosis. See Maj. Op. at 23, 26; see
also id. at 12–13. In the majority’s view, this conclusion is most
consistent with the trial record and best explains why Carey
or the prosecutor would have “felt it necessary” to undergo
2 This issue was first raised when Sims moved for a mistrial after
testimony from Carey in which “he indicated that he might have been
shown a single picture of Sims before he was shown photo arrays which
included Sims’s picture.” The trial court denied the motion and the court
of appeals affirmed, noting that “there was other testimony and evidence
to the effect that Carey had never been shown a single photograph, but
was only shown arrays of six or seven photos,” and that in any event,
“there was a sufficient basis, independent of any improper photo display,
to support the admissibility of the in-court identification of Sims.” The
issue arose again in the post-conviction proceedings, in which the state
courts found that “when the police arrived at the hospital emergency
room, they showed Carey photos of Sims and several other men, and
Carey positively identified Sims as his assailant.”
34 No. 18-1573
hypnosis at all. Id. at 26. But just as § 2254 does not permit us
to review a state court’s application of federal law de novo, it
also does not permit us to reweigh evidence according to our
own best reading of the trial record. Both the state trial court
and the Indiana Court of Appeals explicitly rejected the
notion that Carey identified Sims only after hypnosis: “the
contention that Carey was ‘only’ able to identify Petitioner
following the hypnosis is at odds with other credible
evidence … in the record.… From the record of the case,
Carey was able to identify Petitioner well before hypnosis.”
Ind. Ct. App. Op. at 6–7 (quoting the trial court); see also id. at
9–10. The majority is not free to question this finding.
After deciding for itself which facts are undisputed, the
majority frames the materiality question this way: could a
fairminded judge be confident in Sims’s conviction where the
only evidence was Sims’s proximity to the scene of the crime
and Carey’s solid but imperfect on-scene description? See Maj.
Op. at 21, 25 (acknowledging Sims’s suspicious proximity to
the scene and citing Carey’s description as the only other
“undisputed details”). But that framing stacks the deck by
sifting out evidence on which the state court relied in
applying Brady—most significantly, Carey’s identification of
Sims in the photo arrays. Absent clear and convincing
evidence that the state court’s factual findings were wrong—
which again, is not something that the majority undertakes to
show—we are required to take the facts as the state court
found them. 28 U.S.C. § 2254(e)(1). 3
3 The majority claims that I “assail [its] opinion” by contesting its factual
findings with my own. Maj. Op. at 26. But that misses the point entirely.
Section 2254 requires us to accept the facts as the state court presented
them and determine whether, on those facts, the state court’s legal
No. 18-1573 35
Doing that leaves us with the following facts. Carey gave
an on-scene description of the shooter that matched, in many
respects, a person crouching in the bushes behind a nearby
dumpster. But the match was not perfect: Carey described a
person with short hair and wearing boots, and Sims was
apprehended apparently wearing a hat or hood and Nikes.
Carey identified Sims in multiple pre-hypnosis photo arrays
and “never identified any other as his assailant.” At some
point, before trial, Carey underwent a single session of
hypnosis to improve his memory of the event. There is no
record of what happened during this session. At trial, Carey
gave a more robust description of his assailant than the one
given on-scene—adding details like the discoloration under
Sims’s eye and the patch on his jacket—but he did not
contradict his initial description. He testified that his memory
of certain details had improved over time. Defense counsel
cross-examined Carey on all inconsistencies with and
additions to his initial description of the shooter. An officer
testified that, from the very beginning, Carey said that he
could identify the assailant, and that Carey’s description of
the assailant matched Sims. The government never found the
gun used to shoot Carey. The jury found Sims guilty of
attempted murder.
The Indiana trial court drew two important conclusions
from these facts in its post-conviction review. First, it decided
that the government had proven by clear and convincing
evidence that Carey’s in-court identification of Sims had a
sufficient factual basis independent of hypnosis. Second, the
conclusions constituted an unreasonable application of federal law. I don’t
contest any of the majority’s factual findings, only its authority to make
them.
36 No. 18-1573
court noted that the distinctive elements of Carey’s trial
testimony, compared to his initial description, “were fully
developed, examined and vigorously discussed in cross
examination,” which gave the jury the opportunity to weigh
Carey’s credibility regarding the differences. Given that the
government would still have been able to introduce a strong,
reliable in-court identification of Sims and that, in the court’s
view, many of the problems raised by hypnosis were already
addressed by robust cross-examination, the court held that
the “evidence presented provides sufficient confidence in the
verdict.” The Indiana Court of Appeals agreed. It emphasized
the independent strength of the in-court identification and the
“vigorous cross-examination” of Carey before holding that “it
is not reasonably probable that the outcome of Sims’s trial
would have been different had Carey’s hypnosis been
disclosed.” Ind. Ct. App. Op. at 10.
That decision does not involve an objectively
unreasonable application of clearly established federal law.
The state courts suggested that the undisclosed evidence
would have been largely cumulative, and therefore not
material, because the defense was already able to cross-
examine Carey about the differences in his testimony. The
Supreme Court has held that “largely cumulative”
impeachment evidence is not material. See Turner, 137 S. Ct.
at 1894. The majority acknowledges Turner’s holding but
disagrees that the hypnosis evidence would have been
cumulative. In its view, the newly discovered evidence of
hypnosis would have “changed [Carey’s] cross-examination
quite dramatically” and “calls into question everything Carey
said at trial.” Maj. Op. at 21, 23. But neither outcome is
obviously true.
No. 18-1573 37
Indeed, had the evidence of hypnosis been disclosed,
defense counsel would have likely emphasized the dangers of
hypnotically-refreshed testimony discussed in Rock v.
Arkansas. See 483 U.S. 44, 59–60 (1987). At best, however, the
effect of that argument would have been to undermine the
reliability and credibility of any part of Carey’s testimony that
could not be traced to his memory prior to hypnosis. It was
not objectively unreasonable, then, for the state court to
conclude that the impeachment evidence was largely
cumulative: the vulnerable parts of Carey’s testimony—
describing the discoloration under Sims’s eye and the patch
on his jacket—were already undermined by defense counsel’s
cross-examination stressing that such details appeared
nowhere in Carey’s on-scene description.
But that debate is at the periphery. Under Indiana law
evidence derived from hypnosis is inadmissible. See Ind. Ct.
App. Op. at 7 (citing Rowley, 483 N.E.2d at 1081). Thus, the
question is not whether cross-examination of hypnotically-
refreshed testimony would have been effective—notably, the
question that Rock speaks to.4 The question is whether without
the hypnotically-refreshed testimony, a reasonable jurist
could be confident in the conviction. Acknowledging the
effectiveness of defense counsel’s cross-examination was one
4 Rock’s discussion of the dangers of hypnotically-refreshed testimony
and the ineffectiveness of cross-examination on such testimony took place
in the context of considering the admissibility of post-hypnosis testimony.
See 483 U.S. 44, 53, 61 (1987) (distinguishing between post-hypnosis
testimony and testimony that a litigant could “prove to be the product of
prehypnosis memory” for the purposes of its analysis). Notably, Rock’s
holding actually offered some protection for hypnotically-refreshed—that
is, derived from hypnosis—testimony. See id. at 61 (post-hypnosis
testimony is not categorically unreliable).
38 No. 18-1573
way for the state court to test this question—i.e., because the
defense counsel cast substantial doubt on the reliability of the
hypnotically-refreshed testimony, a reasonable jurist could be
confident that the pre-hypnosis evidence and testimony
drove the verdict.
As an additional ground for its immateriality decision,
however, the state court considered the pre-hypnosis
evidence—and admissible identification related to that
evidence—in isolation and expressed confidence that the jury
would have still decided to convict. The only additional boost
that the evidence of hypnosis would have given Sims’s
defense counsel on cross-examination under these
circumstances would have been to raise questions about why
Carey underwent hypnosis in the first place. Certainly, the
jury might have some discomfort with the fact that Carey felt
the need to undergo hypnosis—as the majority does, and as I
do. But the key is the reliability of Carey’s identification of
Sims.
Evidence of hypnosis and Carey’s reduced credibility over
time could not have retroactively undermined the reliability
of his contemporaneous description of the events and the
assailant or his multiple pre-hypnosis photo-lineup
identifications of Sims. Cf. Neil v. Biggers, 409 U.S. 188, 199–
200 (1972) (identifying “the opportunity of the witness to
view the criminal at the time of the crime, the witness’ degree
of attention, the accuracy of the witness’ prior description of
the criminal, the level of certainty demonstrated by the
witness …, and the length of time between the crime and the
[identification]” as factors relevant to reliability). Nor could it
have changed the fact that the police discovered Sims peering
down on the scene behind a nearby dumpster. Thus, unlike
No. 18-1573 39
the cases that the majority cites, in which the undisclosed
evidence either contradicted the witness’s in-court
identification or shattered the credibility of a witness with no
contemporaneous corroboration for his in-court
identification, Carey’s contemporaneous description and pre-
hypnosis identifications were independently reliable and
consistent with his in-court identification. Cf. Wearry v. Cain,
136 S. Ct. 1002, 1004–05 (2016) (per curiam) (undisclosed
statements suggested that the witness was attempting to
frame the defendant; undisclosed evidence suggested that the
witness was biased; undisclosed medical evidence suggested
that it would have been impossible for the defendant to have
done the things that the witness described); Smith v. Cain, 565
U.S. 73, 74–76 (2012) (witness’s undisclosed contemporaneous
statements directly contradicted the testimony supporting his
in-court identification); Kyles, 514 U.S. at 441–42 (witness’s
undisclosed contemporaneous statements contradicted the
in-court identification).
In short, the state court concluded that the evidence of
hypnosis was not only cumulative but also comparatively
weak in light of the strength and reliability of Carey’s pre-
hypnosis description and identifications. That conclusion is
not “beyond any possibility for fairminded disagreement.”
See Harrington, 562 U.S. at 103. Here, Carey’s hypnotically-
refreshed testimony was not “the only evidence linking [Sims]
to the crime.” See Smith, 565 U.S. at 76. With a solid on-scene
description, multiple untainted photo-array identifications,
and an in-court identification by the victim—not to mention
Sims’s suspicious behavior and proximity to the scene of the
crime—a fair-minded jurist could be confident in the jury’s
verdict, even if we are not. See Kidd, 734 F.3d at 703.
40 No. 18-1573
***
Again, if I were deciding the question de novo, I would
agree with the majority that the suppressed evidence of
hypnosis undermined confidence in the verdict. But because
I can’t say that the Indiana Court of Appeals’ decision was “so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement,” Harrington, 562 U.S.
at 103, I would affirm the district court’s denial of Sims’s
habeas corpus petition.