Triandus Tabb v. Tim Christianson , 855 F.3d 757 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1826
TRIANDUS TABB,
Petitioner-Appellant,
v.
TIM CHRISTIANSON,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:14-cv-02023 — John W. Darrah, Judge.
____________________
ARGUED JANUARY 18, 2017 — DECIDED APRIL 28, 2017
____________________
Before WOOD, Chief Judge, and POSNER and HAMILTON, Cir-
cuit Judges.
HAMILTON, Circuit Judge. On September 6, 2003, at 1:20
p.m., Salvador Gomez stopped his car at a red light at a Chi-
cago intersection. Through the driver-side window, a man ap-
proached and tried to steal his car. When Mr. Gomez would
not yield, the attacker shot him three times. Mr. Gomez sur-
vived. He later identified petitioner Triandus Tabb as the
2 No. 16-1826
shooter. Tabb was convicted in Illinois state court of at-
tempted first-degree murder, aggravated battery with a fire-
arm, and attempted aggravated vehicular hijacking. At trial,
the crux of the State’s evidence was the victim’s identification
of Tabb. Over the long course of state and federal court pro-
ceedings in his case, Tabb finished his prison sentence but is
still under mandatory supervised release. He now appeals the
denial of his habeas corpus petition challenging his convic-
tion.
The focus of Tabb’s federal habeas claims is the reliability
of Mr. Gomez’s identification of Tabb as the shooter. We have
warned that “it is vital that evidence about how photo
spreads, showups, and lineups are conducted be provided to
defense counsel and the court.” Newsome v. McCabe, 319 F.3d
301, 305 (7th Cir. 2003). That is because “recollection is sug-
gestible.” Id. “Once the witness decides that ‘X is it’ the view
may be unshakable.” Id. Recent psychological research chal-
lenges “the lay intuition that confident memories of salient
experiences … are accurate.” Id., quoting Krist v. Eli Lilly &
Co., 897 F.2d 293, 296 (7th Cir. 1990) (alteration in original). At
the same time, jurors “tend to think that witnesses’ memories
are reliable,” and “this gap between the actual error rate and
the jurors’ heavy reliance on eyewitness testimony sets the
stage for erroneous convictions.” Id.Tabb has presented evidence calling into question the ob-
jectivity of the lineup procedures in which he was identified
and the ensuing validity of the witness identifications of him
at trial. He has argued that evidence about how the lineup
was conducted was kept from the defense and then de-
stroyed. See Brady v. Maryland, 373 U.S. 83 (1963) (suppression
of material evidence favorable to the accused, when requested
No. 16-1826 3
by defense, violates due process); Arizona v. Youngblood, 488
U.S. 51 (1988) (holding that the prosecution’s destruction of
material exculpatory evidence is a due process violation).
Tabb has not shown, however, that he is entitled to relief from
his conviction. We affirm the district court’s denial of his mo-
tion for summary judgment and its subsequent dismissal of
Tabb’s habeas petition. To explain, we first review the factual
and procedural history, and we then examine Tabb’s claims
under Brady and then Youngblood.
I. Factual and Procedural History
In federal habeas corpus proceedings, we accept as true
the factual findings of state courts unless they are rebutted by
clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Hall v.
Zenk, 692 F.3d 793, 805 (7th Cir. 2012). We offer a review of the
fourteen-year history of Tabb’s case.
A. Tabb’s Trial and Direct Appeal
On the day of the shooting, September 6, 2003, petitioner
Tabb, Norman Brown, and Isaac Pittard all resided at the De-
partment of Children and Family Services Daniel J. Nellum
Group Home in Chicago and were ostensibly members of the
Blackstone street gang. People v. Tabb (Tabb II), 2013 IL App
(1st) 121748-U, 2013 WL 3379128 at *2 (Ill. App. 2013). From
the time he was just four years old, Tabb had been a ward of
the Department of Children and Family Services. He had
lived in the Nellum Group Home for less than a year. The
group home log that tracked when residents came and went
on the day of the shooting recorded Brown and Pittard leav-
ing the home at 12:30 p.m. and 12:45 p.m., respectively. Sig-
nificantly, the log book notes that Tabb was not granted per-
mission to leave the home until 1:45 p.m.—after the shooting.
4 No. 16-1826
At trial the State challenged the reliability of the log book. See
id. at *3. (We do not attempt to resolve that factual issue.)
That same day, at about 1:20 p.m., Salvador Gomez
stopped at a red light just a few blocks away from the group
home. People v. Tabb (Tabb I), 870 N.E.2d 914, 917 (Ill. App.
2007); Tabb II, 2013 WL 3379128, at *1. His windows were al-
ready rolled down when a man approached and pointed a
gun at him. Tabb II, 2013 WL 3379128, at *1. The assailant de-
manded that Mr. Gomez get out of his car, but he refused. Id.Instead, he struggled with the assailant over the gun before
being shot twice in the stomach and once in the arm. Id.; Tabb
I, 870 N.E.2d at 918. Gomez needed major surgery but sur-
vived the attack.
Delayed by the surgery, seven weeks later on October 25,
2003, Gomez identified Tabb from a police lineup. Tabb II, at
*2. Gomez had been under duress, afraid for his life, at the
time of the attack. His initial description of the attacker was
vague: a tall skinny black man wearing white clothes and a
bandana. At Tabb’s trial a year later, Gomez was unable to re-
call confidently how long the entire encounter lasted, perhaps
as short as five seconds or as long as five minutes, but he iden-
tified Tabb as the shooter. Also at trial, an off-duty police of-
ficer who was at the scene of the shooting described the
shooter as wearing a black and white jersey and his hair in
braids. Id. at *3, 10. The Nellum Group Home care worker
Brian Gary testified that he never knew Tabb to wear braids
but that Pittard often did. The off-duty police officer identi-
fied Pittard as the shooter and Brown as the getaway driver.
Brown testified, however, that he saw Tabb shoot Gomez,
though Brown later recanted that testimony. Another witness
No. 16-1826 5
testified that Tabb was not the shooter, while yet another tes-
tified that Tabb confessed to her that he shot a rival gang
member. Beyond the conflicting eyewitness testimony, no
physical evidence tied Tabb to the shooting.
In late 2004, the jury found Tabb guilty on three charges.
The trial court sentenced him to consecutive sentences of
twelve years for attempted first-degree murder (which was
merged with the aggravated battery with a firearm) and four
years for aggravated vehicular hijacking. Tabb I, 870 N.E.2d at
917. In his direct appeal, the state appellate court vacated his
conviction for aggravated battery but affirmed in all other re-
spects. Id. at 929–30. One judge dissented on grounds that are
not part of this appeal. See id. at 930 (Neville, J., dissenting).
B. State Post-Conviction Relief
In 2009, petitioner Tabb filed his operative petition for
post-conviction relief in the state trial court. He argued that
new evidence established his actual innocence, and he said his
trial counsel had been ineffective. Tabb II, 2013 WL 3379128, at
*4. The trial court granted the State’s motion to dismiss and
denied Tabb’s motion to reconsider. Id. at *5. On appeal, the
state appellate court remanded, finding that Tabb’s allega-
tions of actual innocence warranted an evidentiary hearing.
Id., citing People v. Tabb, No. 1-09-2904 (Ill. App. 2011) (un-
published). 1
1 To support his claim of actual innocence, Tabb submitted four affi-
davits with his post-conviction relief petition, from Betty Stuckey, David
Carr, Isaac Pittard, and Cynthia Estes. Stuckey was a bystander witness to
the shooting. She testified that she was able to see clearly the face of the
shooter and that the shooter was not Tabb. Tabb II, 2013 WL 3379128, at *4.
Carr, Stuckey’s son, gave a similar account of the shooting and claimed
that Tabb was neither the shooter nor at the scene. Id. Estes claimed that
6 No. 16-1826
In May 2011, on remand to the state trial court, Tabb filed
a motion for limited post-conviction discovery. He requested
any “written notes relating to, or recordings of, interviews of
witnesses named in Defendant’s Amended Post-Conviction
Petition.” Id. at *5. A defense investigator had spoken with
Gomez’s wife Nelly and reported that she would testify that
her husband had seen a photograph of Tabb prior to the
lineup and that a police officer confirmed Gomez’s identifica-
tion of Tabb after the lineup. The defense sought interview
notes from state investigators who had also spoken to Mrs.
Gomez after the defense investigator did so. In October 2011,
before the evidentiary hearing, Tabb requested sanctions, as-
serting that the State had not complied with the request and
that the interview notes upon which the state investigators
based their final reports had been destroyed. Id. at *5–6. The
court did not impose sanctions but did instruct the State to
instruct investigators to keep any future interview notes in the
case.
At the evidentiary hearing, Mrs. Gomez testified about the
lineup identification. She accompanied her husband to the
police station on the night of the lineup. Id. at *7. She waited
at a desk while an officer escorted her husband to the lineup.
She testified that a few desks over, she saw a stack of files. On
the top of the stack was a photograph of a person’s face. She
in 2008 Brown told her and an attorney that he was “100%” positive that
Tabb was not the shooter, recanting his earlier testimony that Tabb was
the shooter. However, Brown refused to sign an affidavit saying the same.
Id. at *5. Pittard changed his story, too, asserting that only he and Brown
were together at the time of the shooting, and Tabb was not at the scene.
He said he had lied to the police about Tabb’s involvement so that he
would not be blamed for the shooting. Id.
No. 16-1826 7
reported feeling mad and having a sick feeling about the pic-
ture. Id. But it was not until Salvador and the police officer
returned from the lineup that she learned the identity of the
person in the photograph. Mr. Gomez told his wife that he
had identified the shooter. The accompanying police officer
obliged Mrs. Gomez’s request to see a photograph of the man
her husband identified—the same photograph that had given
her a sick feeling—and it was a picture of Tabb. Id. 2
The state trial court denied relief at the close of the eviden-
tiary hearing. The state appellate court affirmed. It found that
the “evidence at defendant’s original trial was overwhelm-
ing,” relying on the identifications of Gomez, Brown, and Pit-
tard—despite each of those being called into question, and the
testimony of Yvonne Ford, who suffered from credibility is-
sues. Id. at *11. The court said that Tabb’s new witnesses were
not reliable and their testimony would probably not “change
the result on retrial.” Id. at *14.
C. Federal Habeas Corpus Petition
Having exhausted state court remedies, Tabb sought fed-
eral relief. In 2014, he filed a habeas corpus petition under 28
U.S.C. § 2254 raising four claims for relief: “(1) the state vio-
lated Tabb’s Constitutional rights by withholding exculpatory
information and evidence of an improper and suggestive
lineup … ; (2) the state destroyed, in bad faith, potentially use-
ful evidence of the tainted lineup and independent eyewit-
ness testimony that Tabb was not the shooter; (3) the state vi-
olated Tabb’s rights by destroying, in bad faith, potentially
2The state court did not permit the defense to present expert testi-
mony on the reliability of Gomez’s identification or scientific research on
eyewitness memory. Tabb II, 2013 WL 3379128, at *6.
8 No. 16-1826
useful … interviews; and (4) absent the Constitutional viola-
tions … Tabb would have been able to establish his inno-
cence.” Tabb v. Butler (Tabb III), No. 14-cv-2023, 2016 WL
1056657, at *3 (N.D. Ill. Mar. 17, 2016). The district court al-
lowed Tabb to take discovery regarding the potentially
tainted lineup and the destruction of notes. The district court’s
ultimate denial of summary judgment relied on the parties’
post-discovery statements of undisputed material facts.
The district court found that Tabb had procedurally de-
faulted the Brady claim. Tabb did not raise the “operative facts
and controlling legal principles” for his Brady claim until he
filed his post-conviction petition for leave to appeal and thus
did not “fairly preserve this issue.” Id. at *4. The district court,
however, found that Tabb’s default should be excused because
he was unaware of the possible claim until Mrs. Gomez alleg-
edly informed his investigators that the lineup had been
tainted, and because actual prejudice could have resulted
from the concealment of a purposefully tainted lineup. The
court rejected the claim on the merits, however. The district
court also denied the Youngblood claim, noting an absence of
clear Seventh Circuit precedent on whether destruction of ev-
idence for state post-conviction proceedings is within the pur-
view of federal habeas relief. Id. at *5–6. The district court ap-
plied the deferential standard required by 28 U.S.C.
§ 2254(d)–(e), finding that the state appellate court did not
make an unreasonable determination of law or fact and that
the Youngblood claim failed on the merits. Without an inde-
pendent constitutional violation, the court found that Tabb’s
claim of actual innocence was not cognizable. Id. at *6. The
district court denied habeas relief but granted a certificate of
appealablity on whether “Youngblood applies to the preserva-
tion of evidence in a post-conviction proceeding.” Id. at *7. We
No. 16-1826 9
expanded the certificate of appealability to add the Brady
claim.
II. Analysis
The Supreme Court has repeatedly addressed “what
might loosely be called the area of constitutionally guaran-
teed access to evidence.” Youngblood, 488 U.S. at 55, quoting
United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).
Brady held that due process requires the prosecution to
disclose material evidence favorable to the accused upon a de-
fense request, regardless of the good or bad faith of the pros-
ecution. 373 U.S. at 87. The Court extended Brady to reach
cases where no requests for evidence were made but the evi-
dence “is obviously of such substantial value to the defense
that elementary fairness requires it to be disclosed.” United
States v. Agurs, 427 U.S. 97, 110 (1976).
Another related line of cases addresses due process viola-
tions when the State destroys exculpatory evidence. In Cali-
fornia v. Trombetta, 467 U.S. 479, 488–90 (1984), the Court gave
three reasons for denying defendants’ destruction of evidence
claim: the officers acted in good faith, the exculpatory nature
was minimal, and the defendants had alternative methods of
demonstrating their innocence. In the absence of bad faith, the
defendant must show that the destroyed evidence was mate-
rial and exculpatory. Id. at 489. Five years later in Youngblood,
the Court held that when bad faith is shown, the defendant
can succeed on his destruction of evidence claim if the evi-
dence may have exonerated him. Youngblood, 488 U.S. at 56–
58.
10 No. 16-1826
A. Preliminary Issues
Before digging into Tabb’s due process claims, we address
two preliminary issues. First, the State asserts that the federal
district court erred in allowing discovery before deciding
Tabb’s motion for summary judgment. We review the district
court’s limited grant of discovery for abuse of discretion. Hu-
banks v. Frank, 392 F.3d 926, 933 (7th Cir. 2004), citing Bracy v.
Gramley, 520 U.S. 899, 904 (1997). As a general rule, federal
habeas petitions must be decided on state court records. Cul-
len v. Pinholster, 563 U.S. 170, 182 (2011). To obtain discovery,
the federal petitioner must “(1) make a colorable claim show-
ing that the underlying facts, if proven, constitute a constitu-
tional violation; and (2) show ‘good cause’ for the discovery.”
Hubanks, 392 F.3d at 933; 28 U.S.C. § 2254(e)(2) (authorizing
evidentiary hearings in limited circumstances).
The deposition testimony developed during the federal
discovery did not produce the support Tabb needed. That fact
does not mean, however, that the district court erred in allow-
ing the discovery. The district court evaluated Tabb’s request
and concluded that he had “made a colorable claim showing
that the underlying facts, if proven, constitute a constitutional
violation as to his allegations of a tainted lineup and the de-
struction of notes, insofar as those notes evidence an allegedly
tainted lineup.” The court’s grant of discovery was sensible
and limited to these issues, and the court denied all other dis-
covery requests. The district court did not abuse its discretion.
The second preliminary issue is Tabb’s freestanding claim
of actual innocence. “Claims of actual innocence based on
newly discovered evidence have never been held to state a
ground for federal habeas relief absent an independent con-
stitutional violation occurring in the underlying state criminal
No. 16-1826 11
proceeding.” Herrera v. Collins, 506 U.S. 390, 390–91, 400
(1993). Whether the constitutional guarantee of due process
supports independent claims of actual innocence without any
other constitutional violation remains open to debate. See Dis-
trict Attorney’s Office v. Osborne, 557 U.S. 52, 71 (2009) (ques-
tion remains open); House v. Bell, 547 U.S. 518, 554–55
(2006) (same); In re Davis, 557 U.S. 952 (2009) (mem.) (Stevens,
J., concurring) (same); Bradford v. Brown, 831 F.3d 902, 917 n.7
(7th Cir. 2016) (Hamilton, J., dissenting) (same).
We acknowledge that it is possible that Tabb, despite his
conviction, is actually innocent of shooting Salvador Gomez.
The case against Tabb depended entirely on the accuracy of
Mr. Gomez’s identification. Such identifications of strangers
in quick, high-stress encounters are often mistaken, and some
other witnesses’ accounts support Tabb’s claim of innocence.
If the federal courts will recognize freestanding constitutional
claims of actual innocence, however, it is clear that evidence
of innocence will need to meet an “extraordinarily high”
threshold. Herrera, 506 U.S. at 392, 417. Tabb’s evidence is not
strong enough for this case to break that new constitutional
ground. He has called his conviction into doubt, but he has
not offered objective and highly reliable evidence of actual in-
nocence. Thus, Tabb would be entitled to habeas relief only if
he could establish an independent constitutional violation.
He cannot, for reasons we now explain.
B. Standard of Review
This habeas case is unusual in that the petitioner was al-
lowed to conduct additional discovery and to supplement the
record with deposition testimony relevant to his claims, and
he moved for summary judgment. The district court denied
both Tabb’s motion for summary judgment and the petition
12 No. 16-1826
itself, all without a federal evidentiary hearing. Accordingly,
our review of the district court’s decision is de novo. See, e.g.,
Blackmon v. Williams, 823 F.3d 1088, 1099 (7th Cir. 2016); Stitts
v. Wilson, 713 F.3d 887, 891 (7th Cir. 2013).
C. Brady Claim
To establish a Brady violation, the petitioner must show
that the State suppressed material evidence that was favor-
able to him. Brady, 373 U.S. at 87; Strickler v. Greene, 527 U.S.
263, 280–81 (1999). When the claim at issue was not decided
on the merits in state court, we review de novo. Cone v. Bell, 556
U.S. 449, 472 (2009).
First, the State continues to argue that there is no reason to
excuse Tabb’s procedural default of this claim in the state
courts. We disagree. The general rule is that before a federal
court may consider a habeas claim, the petitioner must pre-
sent the claim fairly in a full round of state court proceedings.
Coleman v. Thompson, 501 U.S. 722, 750 (1991). However, if the
petitioner did not do so, the default may be excused when the
petitioner shows both cause for the default and actual preju-
dice, or shows that federal review is needed to prevent a fun-
damental miscarriage of justice. Id. The district court correctly
found that Tabb’s procedural default should be excused be-
cause he demonstrated cause (he was “unaware of the possi-
ble claim until Mrs. Gomez allegedly informed his investiga-
tors that the lineup was tainted”) and actual prejudice (“con-
cealment of a purposefully tainted lineup” could have re-
sulted in actual prejudice). Tabb III, 2016 WL 1056657, at *4.
Substantively, Mr. Gomez’s lineup identification and testi-
mony were essential to Tabb’s conviction. Tabb argues that the
No. 16-1826 13
evidence provided by Mrs. Gomez after trial calls into ques-
tion that crucial identification and testimony. The district
court rejected Tabb’s Brady claim because there is insufficient
evidence of a suggestive lineup in which Mr. Gomez saw the
photograph of Tabb in the police station before he identified
Tabb in the lineup. Id. On appeal, Tabb asserts that the possi-
ble opportunity to see a photograph of Tabb moments before
the lineup and what he claims was the police officer’s confir-
mation that Mr. Gomez had selected the correct suspect in the
lineup resulted in an unconstitutionally suggestive lineup.
Tabb’s Brady claim relies on the State’s suppression of the facts
showing the lineup was unfairly suggestive.
Has Tabb shown that the lineup was actually suggestive?
No testimony from Salvador Gomez indicates that it was, but
we must also assess Mrs. Gomez’s accounts. She first came in
contact with Tabb’s lawyers in early 2011 while his post-con-
viction relief petition was pending. An email from a member
of Tabb’s legal team described a conversation with her, report-
ing that Mrs. Gomez said “that prior to her husband’s lineup
identifying Tabb, they were waiting in a room. In that room
was a file and [Tabb’s] picture was on top of the file just sitting
there. They both looked at it,” and later, after the lineup, “the
police officer told them [] Gomez got his lineup id correct.”
If that account were true, such priming of the witness and
the later reinforcement of the witness’s lineup identification
would undermine the independence and reliability of the
identification. In that event, Tabb might well be able to estab-
lish that Salvador Gomez’s identification of him was tainted
by an unconstitutionally suggestive lineup. See Simmons v.
United States, 390 U.S. 377, 383 (1968) (possibility of misiden-
tification would be “heightened if the police indicate to the
14 No. 16-1826
witness that they have other evidence that one of the persons
pictured committed the crime” and that “improper employ-
ment of photographs by police may sometimes cause wit-
nesses to err in identifying criminals”); cf. Gregory-Bey v.
Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003) (witness identifica-
tion is admissible unless both “the challenged procedure was
unduly suggestive” and also the totality of the circumstances
indicate that the identification was not “sufficiently reliable to
prevent misidentification”).
During a follow-up meeting between Mrs. Gomez and two
state investigators, however, she gave an account that was not
consistent with the report of the defense investigator. One of
the state investigators made alterations to a print-out of the
email from Tabb’s legal team. Based on the conversation be-
tween the investigators and Mrs. Gomez, one investigator cor-
rected the statements in the email with handwritten modifi-
cations and asked her to initial the changes to signal her ap-
proval. She did so. The changes reflect that Mrs. Gomez said
that only she, not her husband, saw the photograph of Tabb.
The investigator also drew a line through all of the remarks
about the police officer confirming the identification, striking
them in their entirety, apparently with Mrs. Gomez’s blessing.
The state investigators then typed a report from the hand-
written notes they took during the interview. Those notes
were destroyed after the typed summary report was created.
In the final report, the state investigators wrote: “As Nelly
[Gomez] was sitting alone, she saw a photograph on a nearby
desk.” “When Salvador and the detective came to where she
was sitting, Nelly learned that Salvador had identified the of-
fender in the line-up. Nelly asked, ‘Who was it’. The detective
then went to the picture Nelly previously viewed, sitting on a
No. 16-1826 15
nearby desk. He showed Nelly the person in the photograph,
telling her this was the offender,” to indicate the individual
Mr. Gomez had identified, not that his identification was cor-
rect.
Mrs. Gomez then testified twice: in a state post-conviction
evidentiary hearing and in a deposition for the federal habeas
petition. In the state hearing, she testified that while she sat
alone waiting for her husband to complete the lineup, she saw
a photograph of Tabb on a stack of files a few desks over.
When she saw the image, she “just had a sick feeling.” When
her husband returned and told her he had identified his at-
tacker, Mrs. Gomez asked the police officer if he would show
her “a picture of the person that tried to kill my husband.”
The police officer took the image she had previously seen, and
said, “Oh, it’s right here. Look. This is him.” When the defense
confronted her, “And you told us … that the police officer told
your husband that he selected the right person in the lineup;
Is that correct?” Mrs. Gomez responded no.
Mrs. Gomez then provided similar deposition testimony
for the federal habeas petition. This time she said that rather
than being escorted to the lineup immediately, her husband
waited with her before the lineup in the same room where the
photograph of Tabb was lying atop a stack of papers. Yet,
again she said that she had seen the photograph only while
sitting alone after her husband left, and her “sixth sense” gave
her an angry, sick feeling about the boy in the image. Again
she testified that when her husband returned, she requested
to see “a picture of the person that was going to take my hus-
band away.” The police officer showed Mrs. Gomez the same
photograph she had seen while alone. He told her, “this is
him, your husband’s assailant.”
16 No. 16-1826
We must conclude that the petitioner did not prove that
the lineup procedures were suggestive. There is no direct ev-
idence that Mr. Gomez was even able to see the photograph
of Tabb prior to the lineup, let alone that he actually saw it.
There also is no admissible evidence that the police officer
confirmed with Mr. and Mrs. Gomez that Salvador had iden-
tified the correct lineup participant, only that he showed them
a photo of the man Salvador identified. Thus, Tabb has not
shown that the State suppressed material evidence favorable
to the defense because there is no evidence of a suggestive
lineup.
D. Youngblood Claim
Tabb also asserts a Youngblood claim. Because the claim
was decided on the merits in state court, we review the state
court decision deferentially. The petitioner must show that the
state courts unreasonably applied clearly established federal
law or unreasonably determined the facts. 28 U.S.C. § 2254(d);
Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013).
In Youngblood, the Supreme Court held that a due process
violation may result when the state destroys evidence in bad
faith. 488 U.S. at 56 (petitioner must show that exculpatory
nature of the destroyed evidence was apparent before de-
struction and that evidence could not be obtained elsewhere,
in addition to bad faith). Youngblood challenged his convic-
tion for child molestation, sexual assault, and kidnapping. Id.
at 52. The victim’s clothing had been stored improperly with-
out refrigeration, so the samples deteriorated. Id. at 53. Blood
and DNA testing techniques available at the time produced
inconclusive results. Id. at 54. Yet the victim identified
Youngblood as his attacker. Id. at 53. Youngblood’s defense at
trial was that the victim had misidentified him and that if the
No. 16-1826 17
clothing had been refrigerated, proper testing would have ex-
onerated him. Id. at 54. A jury found Youngblood guilty, but
the Arizona Court of Appeals reversed. Id. The Supreme
Court of the United States reversed in turn and reinstated the
conviction because there was no showing of bad faith. Id. at
55. 3
Tabb invites us to decide whether destruction of evidence
relevant to state post-conviction proceedings can justify fed-
eral habeas relief. In Trombetta and Youngblood, the issues con-
cerned exculpatory evidence created prior to trial. The evi-
dence at issue here was both created and destroyed during
post-conviction proceedings. Other circuits have found that
errors in state post-conviction proceedings do not entitle a pe-
titioner to federal habeas relief because the challenges are not
challenges to the petitioner’s detention. See, e.g., United States
v. Dago, 441 F.3d 1238, 1248 (10th Cir. 2006) (“a delay in post-
conviction proceedings does not give rise to an independent
due process claim that would justify granting a defendant ha-
beas relief”); Alley v. Bell, 307 F.3d 380, 387 (6th Cir. 2002) (er-
ror committed during state post-conviction proceedings can-
not provide basis for federal habeas relief), citing Kirby v. Dut-
ton, 794 F.2d 245, 247 (6th Cir. 1986). Here, the interview notes
were created and destroyed in the course of discovery during
3 Over a decade later, in 2000, new DNA testing techniques allowed
the degraded evidence to be tested, and Youngblood was exonerated. Na-
tional Registry of Exonerations, Larry Youngblood,
https://www.law.umich.edu/special/exoneration/Pages/casede-
tail.aspx?caseid=3774 (last visited Apr. 3, 2017). In 2002, after the DNA
was entered into the national convicted offender database, a different man
was convicted of the crime. Innocence Project, Larry Youngblood,
https://www.innocenceproject.org/cases/larry-youngblood/ (last visited
Apr. 28, 2017).
18 No. 16-1826
a state collateral proceeding, but the notes were evidence rel-
evant to a possible constitutional violation before trial. We are
reluctant to adopt a rule that would permit evidence of a
Brady violation to be destroyed if evidence of the violation
came into being only after direct review. We decline to decide
that issue in this case. Assuming relief could be legally avail-
able based on destruction of such exculpatory evidence in
post-conviction proceedings, Tabb’s Youngblood claim still
fails.
Because the state court adjudicated this claim on the mer-
its and discovery did not yield a new or materially altered
claim, the petitioner must demonstrate that the state court de-
cision “was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law” or “was based on an
unreasonable determination of the facts.” 28 U.S.C. § 2254(d);
Warren, 712 F.3d at 1096. Here, the state court assessed Tabb’s
Youngblood claim in the context of a request for sanctions for
the State’s failure to comply with the discovery request, and
the court articulated the correct standards for analysis. Tabb II,
2013 WL 3379128, at *16.
To establish a Youngblood violation, petitioner Tabb must
show that the government acted in bad faith, that the excul-
patory nature of the evidence was apparent, and that the evi-
dence could not be obtained elsewhere. Youngblood, 488 U.S.
at 56; see also United States v. Fletcher, 634 F.3d 395, 407 (7th
Cir. 2011). Tabb has not met that standard.
First, it is undisputed that the State destroyed the hand-
written notes taken by state investigators during interviews
with new witnesses during the post-conviction discovery pro-
cess. Second, the state appellate court found that the “defend-
No. 16-1826 19
ant has provided no evidence that the destroyed notes con-
tained material exculpatory evidence,” nor has the defendant
“suggested that the destroyed notes were material or excul-
patory at all.” Tabb II, 2013 WL 3379128, at *16. Rather, inves-
tigators destroyed the handwritten notes as typical practice
after the notes were typed into summary reports. Without fur-
ther explanation, the state court determined that the “sub-
stance of the handwritten notes” was contained in the sum-
mary reports. Id. Third, the state court also found that Tabb
failed to show bad faith on the part of the government—there
was “no evidence that the State destroyed the notes as a result
of defendant’s discovery request,” so there was no evidence
of bad faith. Id. The federal district court held that “the state
court’s determination was not contrary to, or an unreasonable
application of, clearly established federal law. Nor was there
an unreasonable determination of the facts.” Tabb III, 2016 WL
1056657, at *6. We agree.
First, there is no evidence that the destroyed interview
notes contained actual or potentially exculpatory information
apparent to the investigators. While we recognize that it is dif-
ficult to present evidence of the contents and nature of de-
stroyed evidence, the standard requires more than the de-
struction itself to support an inference that the evidence was
exculpatory. Mrs. Gomez’s prior statements were not con-
sistent with some key details in the summary reports, but that
does not mean the reports do not accurately reflect her state-
ments to the State investigators. Her state-court and federal
deposition testimony after the report was typed is consistent
with the report.
Second, the evidence does not show that the notes were
destroyed in bad faith. Petitioner Tabb urges us to infer bad
20 No. 16-1826
faith from the facts that when the handwritten notes were de-
stroyed, the State knew of the defense discovery request for
handwritten notes and that there is no evidence that the State
attempted to prevent the destruction of notes. See Strickler,
527 U.S. at 280–81 (holding the prosecutor responsible for fa-
vorable evidence known only to the investigators). Other evi-
dence points in the opposite direction, and there is no direct
evidence of bad faith in this case. The routine practice of de-
stroying notes after their contents were captured in typed re-
ports, while problematic, weighs against a finding of bad
faith, and the evidence does not compel a finding that the per-
son who destroyed the notes knew of the defense discovery
request.
We simply cannot say that the state court’s findings of fact
on these points were unreasonable or that the court unreason-
ably applied clearly established federal law. We agree with the
district court that the Youngblood claim cannot succeed.
In sum, Tabb has not presented sufficient evidence of a
due process violation under Brady or Youngblood, and his
claim of actual innocence also fails. The judgment of the dis-
trict court denying Tabb’s habeas corpus petition is
AFFIRMED.