Badelle, Robert E. v. Correll, Curtis ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1602
ROBERT EARL BADELLE,
Petitioner-Appellant,
v.
CURTIS CORRELL,Œ
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 02 C 238—Larry J. McKinney, Chief Judge.
____________
ARGUED JUNE 7, 2005—DECIDED JUNE 22, 2006
____________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Almost thirty years ago, Robert
Kannapel Sr. was shot and killed while working at an
Indianapolis gas station. Robert Badelle was convicted of
the murder by an Indiana jury in 1979 and sentenced
to sixty years’ imprisonment. Badelle’s conviction and
sentence were affirmed on direct appeal. Badelle v. State,
449 N.E.2d 1055 (Ind. 1983) (Badelle I).
Œ
Warden Curtis Correll has been substituted for John R.
Vanatta, as Badelle has been moved to the Plainfield prerelease
center.
2 No. 04-1602
Four years after the final disposition of his direct appeal,
Badelle commenced an action for postconviction relief in
state court. For reasons not entirely clear from the record,
this petition apparently remained pending for twelve years
without substantial action by the Indiana court.1 An
evidentiary hearing was finally convened in the fall of 1999;
it lasted four days and 44 witnesses testified. The
postconviction court denied relief, and the denial was
upheld on appeal. Badelle v. State, 754 N.E.2d 510 (Ind.
App. 2001) (Badelle II). The Indiana Supreme Court
declined review.
Badelle then filed a petition for a writ of habeas corpus in
the district court pursuant to 28 U.S.C. § 2254 alleging
numerous errors in the state court proceedings. The district
court denied relief, and this court granted in part Badelle’s
request for a certificate of appealability. See 28 U.S.C.
§ 2253. Badelle argues on appeal that he is entitled to
habeas relief because the prosecution withheld evidence
contrary to Brady v. Maryland, 373 U.S. 83 (1963), and
because his counsel was ineffective for failing to investigate
and present the testimony of additional witnesses and for
not sufficiently objecting to the admissibility of eyewitness
identifications. We affirm.
I. Background
On the snowy afternoon of December 5, 1977, Robert
Kannapel Sr. and his son Robert Jr. were working together
at a gas station in Indianapolis, Indiana. Robert Sr. was
primarily working in the garage repairing automobiles
1
The Indiana Court of Appeals noted without elaboration that
the original petition for postconviction relief was filed on June 15,
1987, and that “subsequent petitions or amendments” were filed
in 1987, 1989, 1996, and, finally, on May 27, 1999. Badelle v.
State, 754 N.E.2d 510, 519 (Ind. App. 2001).
No. 04-1602 3
while his son manned the gas pumps and otherwise
dealt with customers. Sometime between 3:00 p.m. and
3:30 p.m., a man unknown to the Kannapels walked into
the station’s front office area to escape the heavy snowfall
and wait for a ride, which the Kannapels permitted him
to do for the ensuing three hours.
At approximately 4 p.m., Edwin Kennedy pulled his car
into the service station and it stalled in front of the gas
pumps. Kennedy, with the assistance of Robert Kannapel
Sr., Robert Kannapel Jr., and the loitering stranger, pushed
the inoperable vehicle off the premises and onto the city
street. Shortly after Kennedy’s car had been moved, Floyd
Piles, the owner of the gas station, stopped in to attend to
some business for approximately ten minutes. He observed
the stranger standing in the front office and exchanged
greetings with him.
At approximately 5 p.m., a man named Joe Harris
entered the station to visit with his friend Robert Kannapel
Sr. Harris would remain at the station for the next hour.
The stranger asked Harris for a cigarette, which Harris
provided. Shortly after 6 p.m., the younger Robert Kannapel
left the station for the evening.
At this point the stranger asked Harris and Robert
Kannapel Sr. if they would call him a cab. As Harris and
Kannapel searched the telephone book for the appropriate
phone number, a man named John Hoffman entered the
station and asked to use the telephone. Hoffman saw the
stranger standing in the lobby and said hello. Kannapel told
Hoffman there was no telephone available for public use
and Hoffman promptly left the station.
Kannapel and Harris found a telephone number for a
taxi, and Kannapel walked into a room at the rear of the
station to place the call. The stranger followed Kannapel
into the back room while Harris remained in the front
lobby. Harris then heard the sound of a scuffle followed by a
4 No. 04-1602
gunshot and Kannapel’s plea for an ambulance. As Harris
began moving toward the back room to investigate, the
stranger emerged holding a silver handgun with a
long barrel. He threatened to shoot Harris if he went any
further. Harris then ran from the station and called police
from his nearby apartment. The shooter left the station and
was observed by a man named Vincent Carrol who had just
pulled his vehicle up to the gasoline pumps. Carrol observed
that the man was holding a “long-barreled, silver-colored”
handgun as he left the gas station. Help arrived too late to
save Kannapel, who died from a gunshot wound.
The Indianapolis Police Department put Detective Dennis
Morgan in charge of the investigation, assisted by Detective
James Highbaugh. A composite sketch of the killer was
created, and the sketch was published in an Indianapolis
newspaper. Three and a half months after the murder, the
police received a tip that Badelle looked very much like the
sketch, and he was arrested on a probation violation.
The case against Badelle was based primarily on posi-
tive identifications made at lineups and in court by
Robert Kannapel Jr. and Joe Harris, the only two living
witnesses who had spent any significant amount of time
observing the murderer hanging around the gas station on
the day of the murder. Robert Kannapel Jr. identified
Badelle as the man who had been loitering in the gas
station the afternoon and evening of the murder. Joe Harris
likewise identified Badelle as the man who shot and killed
Robert Kannapel Sr. and threatened Harris with a gun
following the shooting. Floyd Piles, Vincent Carrol, and
John Hoffman had shorter looks at the suspect and could
not identify Badelle. Edwin Kennedy testified that Badelle
was not the man who helped him push his stalled vehicle off
the gas station lot before the murder took place.
In addition to the two eyewitness identifications, a man
named Charles (“Dick”) Reedus testified that he had known
No. 04-1602 5
Badelle for eight to ten years and that Badelle had been in
Reedus’s place of business “in the fall of 1977”—just months
prior to the murder—brandishing a shiny, chrome-colored
handgun. Reedus also testified that Badelle had on that
occasion fired a shot into the wall (perhaps accidentally),
and that police subsequently searched for, but did not find,
any bullet or bullet hole in the wall.
Additional facts and procedural history will be discussed
where appropriate.2
II. Discussion
Prior to enactment of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), a state prisoner seeking
a writ of habeas corpus in federal court received plenary
review of his federal constitutional claims. Gregory-Bey v.
Hanks, 332 F.3d 1036, 1043 (7th Cir. 2003); Agnew v.
Leibach, 250 F.3d 1123, 1129 (7th Cir. 2001). This
changed in 1996 with passage of AEDPA. Habeas petitions
(such as this one) filed after the enactment of AEDPA are
subject to a standard of review that is far more deferential
to the decisions of state courts and require a different
showing on the part of the prisoner than under pre-AEDPA
habeas law. “Under the new section 2254(d), a federal court
reviews these [state court] determinations
for reasonableness only, whereas the prior law provided
for plenary review of these claims.” Abrams v. Barnett, 121
F.3d 1036, 1037 (7th Cir. 1997).
None of this is new, but Badelle has inexplicably pre-
sented his claims as though this were a pre-AEDPA case.
His failure to adequately comprehend the showing required
2
The foregoing facts are from Badelle’s second trial. The guilty
verdict from Badelle’s first trial was set aside based on a discovery
violation; the case was retried in June 1979.
6 No. 04-1602
of him under post-AEDPA standards complicates our
evaluation of his claims. Review is further hampered by the
scattershot nature of Badelle’s arguments; the factual and
legal underpinnings of his claims are presented in a
disjointed fashion that makes them difficult to understand.
Finally, we note that the vast majority of Badelle’s briefing
in this court consists of a verbatim replication of the brief
he submitted to the Indiana Court of Appeals on his appeal
of the denial of postconviction relief. This cut-and-paste
approach falls far short of the showing required for habeas
relief under AEDPA.
Badelle is entitled to habeas relief only if the decision of
the Indiana Court of Appeals denying his petition for
postconviction relief was (1) contrary to or involved an
unreasonable application of clearly established federal
law as determined by the United States Supreme Court, or
(2) based on an unreasonable determination of the facts
in light of the evidence presented in the state court pro-
ceeding. 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S.
362, 367 (2000); Charlton v. Davis, 439 F.3d 369, 374 (7th
Cir. 2006) (“The relevant decision for purposes of our
assessment is the decision of the last state court to rule
on the merits of the petitioner’s claim.”). A state court
decision is “contrary to” federal law if it is “substantially
different from the relevant precedent of [the Supreme
Court].” Boss v. Pierce, 263 F.3d 734, 739 (7th Cir. 2001)
(quoting Williams, 529 U.S. at 405). This occurs when the
state court applies a rule that contradicts the governing law
set forth by the Supreme Court or, on facts materially
indistinguishable from the facts of an applicable Supreme
Court precedent, reaches a different result. Ward v. Sternes,
334 F.3d 696, 703 (7th Cir. 2003) (citing Williams, 529 U.S.
at 405).
An “unreasonable application” of clearly established
federal law occurs when the state court correctly identi-
fies the governing legal rule but applies it unreasonably
No. 04-1602 7
to the facts of the particular prisoner’s case. Id. But an
“unreasonable application” of clearly established federal law
is not synonymous with an erroneous decision. Williams,
529 U.S. at 410; Woodford v. Visciotti, 537 U.S. 19, 25
(2002) (per curiam). Rather, the state court’s application of
Supreme Court precedent must be so erroneous as to be
objectively unreasonable. Williams, 529 U.S. at 410; see also
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (“[T]he state
court’s decision must have been [not only] incorrect or
erroneous [but] objectively unreasonable.”); Rompilla v.
Beard, 125 S. Ct. 2456, 2462 (2005). Indeed, the Supreme
Court has held that even a “clearly erroneous” state court
decision is not necessarily “unreasonable” for purposes of
§ 2254:
The ‘unreasonable application’ clause requires the state
court decision to be more than incorrect or erroneous.
The state court’s application of clearly established law
must be objectively unreasonable. . . . [T]he Ninth
Circuit [has] defined ‘objectively unreasonable’ to mean
‘clear error.’ These two standards, however, are not the
same. The gloss of clear error fails to give proper
deference to state courts by conflating error (even clear
error) with unreasonableness. It is not enough that a
federal habeas court, in its ‘independent review of the
legal question,’ is left with a ‘firm conviction’ that the
state court was ‘erroneous.’
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (internal
citations omitted).
We are therefore required to distinguish between state
court decisions that are clearly erroneous and those that are
so erroneous as to be “objectively unreasonable”; only the
latter qualify for habeas relief under AEDPA. We “take[ ]
for granted that for a given set of facts, there exists the
possibility of ‘several equally plausible outcomes.’ ” We will
“uphold those outcomes which comport with recognized
8 No. 04-1602
conventions of legal reasoning and set aside those which do
not.” Ward, 334 F.3d at 703. Stated another way, an
unreasonable state court decision is one “lying well outside
the boundaries of permissible differences of opinion,”
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002), or
one that is “at such tension with governing U.S. Supreme
Court precedents, or so inadequately supported by the
record, or so arbitrary” as to be unreasonable. Hall v.
Washington, 106 F.3d 742, 749 (7th Cir. 1997).
A. Brady Claims
Many of Badelle’s claims are premised on alleged viola-
tions of Brady v. Maryland, 373 U.S. 83 (1963). Under
Brady and its progeny, the prosecution in a criminal case
has an affirmative duty to disclose evidence that is both
favorable to the defense and material to either guilt or
punishment. Kyles v. Whitley, 514 U.S. 419, 432-34 (1995);
United States v. Bagley, 473 U.S. 667, 674-75 (1985). The
suppression of such evidence deprives a defendant of a
fair trial and violates due process. Brady, 373 U.S. at 86-87.
To establish a Brady violation, a criminal defendant must
demonstrate that (1) the prosecution suppressed evidence,
(2) the evidence was favorable to the defense, and (3) the
evidence was material to an issue at trial. Boss, 263 F.3d at
740. Favorable suppressed evidence is material for Brady
purposes if “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles, 514 U.S. at
433-34. A “reasonable probability” of a different result is
shown when “the government’s evidentiary suppression
‘undermines confidence in the outcome of the trial.’ ” Kyles,
514 U.S. at 434 (quoting Bagley, 473 U.S. at 678).
No. 04-1602 9
1. The Investigation of Detective Richard Combs
When Charles Reedus reported to police that Badelle
brandished and fired a silver handgun in Reedus’s place
of business a few months before the murder, Indianapolis
Police Detective Richard Combs went to Reedus’s store and
searched the establishment looking for a bullet or bullet
hole. Combs found no bullet or bullet fragment and could
not locate a bullet hole in the wall. Detective Combs’s
fruitless search was never disclosed to the defense prior
to trial, and Combs did not testify at Badelle’s murder trial.
In Badelle II, the Indiana Court of Appeals held that this
evidence met the first two prongs of the Brady test in that
it was never disclosed to the defendant and was favorable
to the defense. However, relying on Kyles, the court held
that the information was not material “as there is no
reasonable probability that had the evidence been disclosed
to the defense[,] the result of Badelle’s trial would have
been different.” Badelle II, 754 N.E.2d at 530.
Badelle makes absolutely no effort to explain how the
state court’s application of Kyles was so erroneous as to be
objectively unreasonable. His brief states only that he is
“entitled to a reversal of his conviction on this issue because
he was blocked with [sic] the ability to impeach Reedus due
to the State’s suppression of exculpatory evidence.” This is
merely a reiteration of the grounds on which his claim was
originally brought in the state postconviction proceeding
and does not suffice under the post-AEDPA version of
§ 2254. Badelle is required to do more than simply assert
error on the part of the state court. See Harding v. Sternes,
380 F.3d 1034, 1043 (7th Cir. 2004) (“The habeas applicant
has the burden of proof to show that the application of
federal law was unreasonable.”); Woodford, 537 U.S. at 25(“[I]t is the habeas applicant’s burden to show that the state
court applied [federal law] to the facts of his case in an
objectively unreasonable manner.”). He has not offered us
10 No. 04-1602
any basis upon which to conclude that the Indiana court’s
decision lies “well outside” the boundaries of permissible
differences of opinion, and we perceive none ourselves.
Reedus himself testified that the police searched and did
not find a bullet or bullet hole on his premises.
2. The Investigation of Detective Clarence Grant
At Badelle’s postconviction hearing, Indianapolis Police
Detective Clarence Grant testified that in the months
following the murder of Robert Kannapel, he contacted
Richard “Dickie Boy” Carpenter, an informant who had
supplied Grant with good information in the past. Grant
asked Carpenter to see if he could “find out what took place
and who did it” and informed Carpenter that “right at this
time they’re searching for a guy named Robert Badelle.”
Carpenter told Grant that Badelle could not have commit-
ted the crime because Badelle was “up here hanging out
with us at the Drake [Motel]” at the time of the murder.
Detective Grant testified that he sent this information to
“the homicide office” and that this ended his involvement in
the matter.
The Badelle II court found that Carpenter’s statement to
Detective Grant was favorable to the defense and was not
disclosed to the defense prior to trial, satisfying the first
two elements of a Brady claim. Badelle II, 754 N.E.2d at
531. With respect to materiality, however, the Indiana court
held as follows: “[T]he nondisclosure of a known alibi
witness erodes this Court’s confidence in the validity of
Badelle’s conviction. Nevertheless, standing alone, we
cannot say that this information would have changed the
outcome of Badelle’s trial.” Id.Once again, Badelle has failed to present us with any
substantive argument as to why he is entitled to relief
on this issue under post-AEDPA habeas standards. He
makes no specific reference to the Indiana court’s holding
No. 04-1602 11
regarding Detective Grant’s investigation. He merely states,
in conclusory fashion and without citation to authority, that
“whether the State Court’s decision was contrary to or an
unreasonable application of federal law on this issue is
debatable among jurists of reason[.]” This is virtually the
antithesis of the showing he is required to make for issu-
ance of the writ. An unreasonable state court decision for
purposes of post-AEDPA habeas relief is not one that is
merely “debatable” but one that lies “well outside the
boundaries of permissible differences of opinion.”
Hardaway, 302 F.3d at 762. Badelle has thus failed to carry
his burden of proof on this issue. In this limited instance,
however, we will make his argument for him because the
Badelle II opinion contains an arguable inconsistency that
cries out for resolution.
As we have noted, the Indiana Court of Appeals denied
relief on the basis that the suppressed evidence regarding
Detective Grant’s investigation did not meet the test for
materiality under Brady and Kyles, concluding that “stand-
ing alone, we cannot say that this information would have
changed the outcome of Badelle’s trial.” Badelle II, 754
N.E.2d at 531. This can only be viewed as the court’s
“bottom line” on this issue, and it is consistent with applica-
ble federal law, cited numerous times in Badelle II, that
evidence is material for Brady purposes only where there is
a reasonable probability that had the favorable evidence
been disclosed in a timely fashion, the result of the proceed-
ing would have been different. Id. at 526 (quoting Kyles, 514
U.S. at 433-34).
The internal inconsistency arises from the sentence that
immediately precedes the court’s bottom line holding:
“Moreover, the nondisclosure of a known alibi witness
erodes this Court’s confidence in the validity of Badelle’s
conviction.” Badelle II, 754 N.E.2d at 531. This language is
close to the Bagley elaboration on the “reasonable probabil-
ity” standard, to wit, that a “reasonable probability” of a
12 No. 04-1602
different outcome exists when the government’s evidentiary
suppression “undermines confidence in the outcome of the
trial.” Bagley, 473 U.S. at 678; see also Kyles, 514 U.S. at
434. If the Indiana court’s “erodes confidence” language is
understood as the equivalent of Bagley’s “undermines
confidence” formulation, an argument could be made
(though, as we have said, Badelle does not make it) that the
inconsistency amounts to an unreasonable application of
Supreme Court precedent.
The deferential standard of review under AEDPA requires
that we attempt to reconcile, if possible, arguably conflict-
ing language in state court decisions, and we think the
conflict in the Indiana court’s decision can be reconciled.
The Indiana Court of Appeals referred to Bagley’s “under-
mines confidence” standard in its general discussion of the
law applicable to Brady claims, Badelle II, 754 N.E.2d at
526, and was thus plainly aware of and properly cited to the
applicable federal standard.3 The court then chose slightly
different language to express its conclusion that Badelle’s
claim, while arguably meritorious, fell just short. That is,
the state court’s confidence in the outcome, while eroded by
the prosecution’s nondisclosure, was not undermined to the
degree necessary to support a conclusion that a reasonable
probability of a different result existed. This reading is
consistent with the state court’s ultimate resolution of the
issue: “Nevertheless, standing alone, we cannot say that
[Detective Grant’s] information would have changed the
outcome of Badelle’s trial.” (Emphasis added.) The state
court apparently concluded that although its confidence in
the verdict was “eroded,” it was not so far undermined to
the extent that there was a reasonable probability of a
3
The Badelle II court actually cited Farris v. State, 732 N.E.2d
230, 233 (Ind. App. 2000) for this proposition, but Farris was
a Brady case that relied upon Bagley for a recitation of the
applicable law.
No. 04-1602 13
different outcome. We cannot conclude that this decision is
contrary to or an unreasonable application of clearly
established federal law.
3. Tobin Rice and Reginald “Pee Wee” White
Tobin Rice was an Indiana juvenile probation officer
at the time of the murder and supervised a probationer
named Reginald White. At Badelle’s postconviction hearing,
Rice testified that at some point after the murder of Robert
Kannapel he became aware that Detective Highbaugh was
investigating a lead that someone known as “Pee Wee” had
committed the murder. Because White was known as “Pee
Wee,” Rice called Highbaugh and informed him that “Pee
Wee” and Reginald White were one and the same and that
Rice suspected White may have committed the crime.
The Badelle II court held that this evidence was not
“suppressed” within the meaning of Brady because Detec-
tive Highbaugh was a witness for the defense at Badelle’s
murder trial, and “with reasonable inquiry, Trial Counsel
could have ascertained Rice’s name and information from
Detective Highbaugh.” Badelle II, 754 N.E.2d at 526-27.
Highbaugh apparently became convinced that Badelle
had not committed the Kannapel murder and testified for
the defense.
Evidence is not suppressed for Brady purposes where it
is “available to the defendant through the exercise of
reasonable diligence.” Boss, 263 F.3d at 740. Again, Badelle
offers no argument as to why the state court’s resolution of
this aspect of his Brady claim was contrary to or an objec-
tively unreasonable application of federal law. He merely
restates, virtually verbatim, the argument he made in his
brief in the Indiana Court of Appeals. Plenary review in
habeas cases no longer applies, as we have noted; Badelle
has utterly failed to carry his post-AEDPA burden of proof
on this issue.
14 No. 04-1602
Badelle also claims the prosecution failed to disclose
that “Pee Wee” White had been in the gas station on the
day of the murder and (in Badelle’s self-serving spin on the
testimony) was the person who assisted Edwin Kennedy
in pushing his stalled vehicle off the station’s lot. White
testified at Badelle’s postconviction hearing that he went to
the gas station every morning on the way to work to
get change for the bus. He testified that he was in the
station at 8 a.m. on the morning of the murder to get his
change and that he made Detective Highbaugh aware of
this fact. White testified that before he entered the station
that morning, he helped to push a vehicle “into the filling
station” that had either stalled or gotten stuck in the
snow on the street. White testified that he then got his
change, got on the bus, and went to work; he was not in the
gas station at any time after 8 a.m. on the day of the
murder. (We note White’s postconviction testimony conflicts
with trial testimony that the murderer and others pushed
a stalled car out of the lot on the afternoon of the murder.)
Badelle claims White’s presence at the station on the
day of the murder and the fact that he helped to push a
car onto the lot prior to entering the station were sup-
pressed by the prosecution in violation of Brady. The
Badelle II court held that this information was available to
the defense through the exercise of reasonable diligence
because Badelle was well aware of White and his status
as a possible suspect prior to trial. The court noted again
that Detective Highbaugh was a defense witness at trial
and testified about his investigation of White, and also that
White himself was presented to the jury in the courtroom
during the trial and was asked to stand alongside Badelle
in front of the jury. Badelle II, 754 N.E.2d at 528.
The entirety of Badelle’s “argument” on this issue consists
of a verbatim duplication of the brief he submitted to the
Indiana Court of Appeals, right down to a concluding
statement that the alleged suppression of this evidence
No. 04-1602 15
violated “the Indiana Constitution4.” He has failed to even
reference the existence of the state court’s decision, much
less sustain his burden of demonstrating that the decision
was contrary to or involved an unreasonable application of
clearly established federal law as determined by the
Supreme Court.
4. Footprints
Badelle claims the prosecution suppressed evidence that
“there was a discrepancy as to which way the perpetrator
ran” after leaving the gas station based on the presence
of more than one set of footprints in the snow. Badelle’s
trial attorney died twenty years ago, and Badelle cannot say
whether his attorney knew about a second set of footprints;
he offers only that it is unknown whether his attorney was
made aware of a second set of footprints. It is not surpris-
ing, therefore, that the Indiana Court of Appeals held in
cursory fashion that its “review of the record reveals that a
preponderance of the evidence does not indicate that the
State suppressed information regarding footprints.” Badelle
II, 754 N.E.2d at 529.
On habeas review, we presume that the factual findings
of the state appellate court are correct in the absence of
clear and convincing evidence to the contrary. 28 U.S.C.
§ 2254(e)(1); Ruvalcaba v. Chandler, 416 F.3d 555, 559 (7th
Cir. 2005). Badelle makes no reference to the holding of the
Indiana Court of Appeals; his argument is again comprised
solely of a verbatim copying of the brief he submitted to
that court. He has thus failed to carry his burden under
§ 2254(e)(1).
4
Of course, Badelle is entitled to habeas relief only if he can
prove that he is in custody “in violation of the Constitution or laws
of the United States.” 28 U.S.C. § 2254(a).
16 No. 04-1602
5. Walter Cowherd
Badelle claims that the prosecution suppressed informa-
tion concerning the whereabouts of another possible suspect
in the murder, Walter Cowherd. The Badelle II court
concluded that no evidence had been suppressed regarding
Cowherd because “Badelle’s citations to the record fail to
reveal that the State knew of Cowherd’s location at the time
of trial.” Badelle II, 754 N.E.2d at 534. Badelle’s argument
is once again a verbatim reproduction of the brief he
submitted to the Indiana Court of Appeals and as such does
not even reference the state court’s holding, much less
challenge its underlying facts or explain why it should be
considered contrary to or an unreasonable application of
clearly established federal law.
6. Detective R. C. Green’s Investigation
Detective R. C. Green assisted in the investigation of
Robert Kannapel’s murder for a period of two weeks. Green
testified at the postconviction hearing that he received a tip
that a person matching the description of the killer “hung
around with a young lady” who lived in a certain apartment
building. When Green arrived at the apartment building to
investigate, Detective Highbaugh was already there on
stakeout, following up on his lead that someone named “Pee
Wee” had committed the crime. The two detectives shared
their information and explained to each other the tips that
had brought them to the same building. This was the sum
and substance of Green’s testimony on this point. Badelle
claims the prosecution never revealed to defense counsel the
substance of Green’s investigation and that this suppression
of evidence violated Brady.
The Indiana Court of Appeals held that this informa-
tion was not suppressed within the meaning of Brady
because it was available to Badelle’s trial counsel through
the exercise of reasonable diligence in that Detective
No. 04-1602 17
Highbaugh was a defense witness at trial and the limited
information known to Green was also known to Highbaugh.
Badelle II, 754 N.E.2d at 530. As with his other arguments,
Badelle’s brief on this point is identical to the one he filed
in state court. He has not identified how the state court’s
disposition of this issue was contrary to or an unreasonable
application of clearly established federal law.
7. Deputy Chief Tim Foley and Detective Don
Campbell
Badelle asserts that Deputy Chief of Police Tim Foley
believed that the lead investigator on the case, Detective
Dennis Morgan, lacked the investigative skills to properly
investigate a homicide, that he failed to maintain adequate
case documentation on the homicides he investigated, and
that he likely felt pressure to solve the Kannapel murder.
Detective Don Campbell testified at the postconviction
hearing that Indianapolis police officers often felt depart-
mental pressure to solve cases as quickly as possible.
Badelle argues that this information was “suppressed” by
the prosecution contrary to Brady.
We have searched the record and find no Brady claim
premised on these allegations was brought before the
Indiana Court of Appeals, and no such Brady claim was
asserted in Badelle’s request for review by the Indiana
Supreme Court. There is no mention of this claim in the
Badelle II decision. A habeas petitioner must exhaust
state remedies—that is, give the state courts an opportunity
to address each claim. Mahaffey v. Schomig, 294 F.3d 907,
914 (7th Cir. 2002). To satisfy this requirement, a petitioner
must present to the state judiciary both the operative facts
and legal principles that control each claim. Id.; see also
Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001). The
failure to do so results in a forfeiture of federal review.
18 No. 04-1602
Wilson, 243 F.3d at 327. These claims have not been
preserved for habeas review.
8. The Cabdriver
Approximately two hours after Robert Kannapel was
fatally shot, a cabdriver named Aaron Jensen was robbed
six blocks from the gas station. It was the prosecution’s
theory that the same person committed both crimes, and
Jensen testified at Badelle’s murder trial that Badelle
was the man who robbed him.5 Badelle argues that his
counsel was not informed of Jensen’s identity and the
prosecution’s intention to call him as a witness until the day
before trial was to begin, and that this tactic violated the
prosecution’s obligation to disclose favorable material
evidence to the defense. The Indiana Court of Appeals
rejected this argument:
Here, where Trial Counsel was given notice, albeit short
notice, of the State’s intent to call Jensen to testify, it
cannot be held that the State suppressed information
known to him. Information known to Jensen was
available to Trial Counsel through ‘reasonable diligence’
and therefore was not suppressed by the State.
Badelle II, 754 N.E.2d at 533. Because Badelle’s brief on
this issue is once again nothing more than a duplication of
the brief he filed with the Indiana Court of Appeals, he
neither addresses the court’s ruling on the issue nor posits
any argument as to why it was contrary to or an unreason-
able application of clearly established federal law. We
cannot see how this is a Brady issue in any event; Jensen’s
testimony was hardly favorable to Badelle.
5
Badelle was subsequently convicted of the robbery of Jensen in
a separate proceeding.
No. 04-1602 19
B. Ineffective Assistance of Counsel
1. Defaulted Claims/Strickland Legal Standards
In his brief to this court, Badelle has attempted, in a
single introductory sentence, to convert all of the foregoing
Brady claims into ineffective assistance of counsel claims:
“The State loses either way, because if it is determined that
the State did not unlawfully suppress the matters raised in
this issue, then trial counsel was defective for failing to
pursue those matters.” As we have noted, Badelle then goes
on to reproduce the sections of his state court brief contain-
ing his Brady arguments. Nowhere in this material is there
any discussion of how counsel’s performance fell below an
objective standard of reasonableness or how Badelle’s
defense was prejudiced, nor is there any argument regard-
ing the Indiana court’s application of Strickland v. Wash-
ington, 466 U.S. 668 (1984).
The Brady claims that Badelle wants to reconfigure as
Strickland claims are defaulted for failure to raise them in
the state court. Assertions of error in criminal proceedings
must be raised in state court in order to form the basis for
relief in habeas. Breard v. Greene, 523 U.S. 371, 375 (1998).
Further, the claims raised by a petitioner in state court
must be presented in a manner that fairly alerts the state
court of the “federal constitutional grounds for his claim.”
Porter v. Gramley, 112 F.3d 1308, 1315 (7th Cir. 1997). Fair
presentment of a petitioner’s claims to a state tribunal
requires the petitioner to “give the state courts
a meaningful opportunity to pass upon the substance of the
claims” by presenting “both the operative facts and the
controlling legal principles” that he believes should govern
the analysis. Rodriguez v. Scilla, 193 F.3d 913, 916 (7th Cir.
1999) (citing Picard v. Connor, 404 U.S. 270, 275 (1971));
see also Howard v. O’Sullivan, 185 F.3d 721, 725 (7th Cir.
1999).
20 No. 04-1602
Federal courts may only review defaulted claims if the
petitioner shows cause for the failure to raise them and
consequent prejudice, or when he shows that a fundamental
miscarriage of justice will occur unless the federal
court hears the claim. Wilson, 243 F.3d at 329. Badelle
makes no attempt to demonstrate cause for his default
but does hint at the possibility that a fundamental mis-
carriage of justice is at stake because he is actually innocent
of the murder and a victim of mistaken identity. We cannot
agree. The evidence against Badelle at trial may have been
conflicting, but we cannot say that an innocent man has
been convicted. Badelle was positively identified as the
killer by the two people who spent considerable time with
him on the afternoon of the murder. We move on to consider
only those claims of ineffective assistance of counsel that
were presented to the Indiana Court of Appeals.
A petitioner asserting an ineffective assistance of counsel
claim under Strickland must show that counsel’s perfor-
mance was deficient and that the deficient performance
prejudiced the defense. Strickland, 466 U.S. at 687. To
establish deficient performance, a petitioner must demon-
strate that counsel’s representation fell below an objective
standard of reasonableness. Id. at 688. Strickland requires
a reviewing court to “determine whether, in light of all the
circumstances, the identified acts or omissions were outside
the wide range of professionally competent assistance.” Id.
at 690; Kimmelman v. Morrison, 477 U.S. 365, 386 (1985).
In so doing, “it will generally be appropriate for a reviewing
court to assess counsel’s overall performance throughout the
case in order to determine whether the ‘identified acts or
omissions’ overcome the presumption that counsel rendered
reasonable professional assistance.” Kimmelman, 477 U.S.
at 386. To establish prejudice, the petitioner must show
that there is a reasonable probability that but for coun-
sel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
No. 04-1602 21
probability sufficient to undermine confidence in the
outcome. Id. at 694; Wiggins, 539 U.S. at 534.
2. Inadequate Pretrial Investigation
The Indiana Court of Appeals described Badelle’s chal-
lenge to the adequacy of his attorney’s pretrial investigation
as follows: “Badelle argues that Trial Counsel was ineffec-
tive for failing to conduct a reasonably satisfactory pretrial
investigation that would have uncovered additional wit-
nesses favorable to his defense.” Badelle II, 754 N.E.2d at
538. Exactly which potential witnesses were at issue is not
stated in the Indiana court’s opinion; neither are they
identified in Badelle’s briefing. It is possible that Badelle’s
generic references to “pre-trial investigation” and “addi-
tional witnesses” are meant to refer back to his Brady
claims; we have rejected this attempt at bootstrapping. The
contours of this claim are thus hazy at best, but we press
on.
The Indiana court tackled Badelle’s argument by first
noting that his defense was based on a theory of mistaken
identity and then describing the efforts trial counsel
undertook to support that defense. These included the
following: (1) presenting testimony that Floyd Piles, the gas
station owner, picked Reginald White out of a lineup on one
occasion;6 (2) presenting testimony from Edwin Kennedy
that Badelle was not the man who helped push his vehicle
out of the gas station lot on the day of the crime; (3) chal-
6
Piles viewed lineups on two different days, separated by over a
year. On the first occasion he picked Badelle as the man he
had seen at the station on the day of the murder. A year later, he
selected White. Badelle and White were never presented in the
same lineup. Badelle II, 754 N.E.2d at 539 n.19. At trial Piles
simply could not say whether Badelle was or was not the man
he had seen.
22 No. 04-1602
lenging the mental competence of prosecution witness Joe
Harris; and (4) presenting testimony from Detectives
Highbaugh and Morgan regarding the other individuals
they considered suspects during the course of their investi-
gation. Badelle II, 754 N.E.2d at 539. The court concluded
its analysis as follows:
Clearly the foregoing is not an exhaustive list of the
evidence that Trial Counsel presented to the jury,
however it suffices for our purposes of determining
whether Trial Counsel provided adequate pretrial
investigation and preparation. Trial Counsel’s efforts
were more than adequate to support his defense of
mistaken identity. Accordingly, Trial Counsel’s decision
not to call or seek out additional witnesses was
a judgment call ‘within the wide range of reasonable
professional assistance.’
Id.Badelle claims this analysis is at odds with Strickland
because it sidesteps consideration of the individual errors
or omissions allegedly constituting defective performance in
favor of an analysis of counsel’s performance as a
whole. But Badelle did not describe (and still has not
described) the particular pretrial investigative errors or
omissions that form the basis of this aspect of his ineffective
assistance of counsel claim. In the absence of a particular-
ized claim of pretrial error by trial counsel, the Indiana
court can hardly be faulted for its generalized evaluation of
counsel’s overall performance. In any event, the premise of
Badelle’s argument is flawed; the test for deficient perfor-
mance is applied “in light of all the circumstances.” Strick-
land, 466 U.S. at 690.
3. Improper Prejudice Standard
Badelle argues that the state court’s formulation of the
prejudice prong of a claim for ineffective assistance of
No. 04-1602 23
counsel was an unreasonable application of Strickland
because it required Badelle to prove that he was “de-
prived . . . of a fair trial” by “a breakdown in the adversarial
process that rendered the result unreliable.” See Badelle II,
754 N.E.2d at 536. We need not address this issue because
the Indiana court never actually applied this formulation to
the facts of the case.
The statement to which Badelle objects is lifted from the
section of the state court’s opinion that precedes its discus-
sion of the specifics (such as they were) of Badelle’s ineffec-
tive assistance claims. In this introductory section, the
court summarized the law applicable to both the deficient
performance and prejudice prongs of a claim under Strick-
land. However, when the court then turned to the applica-
tion of the law to Badelle’s specific claims, not once did the
court find that Badelle had met the initial showing of
deficient performance that would necessitate moving on to
an analysis of possible prejudice.7 Because the Indiana
court had no occasion to proceed to evaluate prejudice, we
need not consider whether its decision was contrary to or an
unreasonable application of the federal standard for
evaluating prejudice in an ineffective assistance of counsel
claim.
4. Pretrial Identifications
Badelle claims his trial counsel rendered ineffective
assistance when he failed to “sufficiently object to the
admissibility of the various pretrial and in-court iden-
tifications” of Badelle by eyewitnesses. On March 25, 1978,
7
The court summarized its holdings as follows: “Here, Badelle
has failed to substantiate any error, by either Trial Counsel or
Appellate Counsel, which would convince this Court that he
received an inadequate defense.” Badelle II, 754 N.E.2d at 543.
24 No. 04-1602
the same day he was arrested, Badelle’s photograph
appeared in an Indianapolis newspaper identifying him as
a suspect in the murder. The newspaper was published
in the afternoon. During the course of that same day,
Detective Morgan separately showed Edwin Kennedy
and Joe Harris an array of six photographs, one of which
was the same photograph of Badelle that appeared in the
newspaper. Kennedy did not identify anyone in the photo
array as the man who assisted in pushing his car out of the
gas station lot. Harris identified Badelle.
Five days later Badelle stood in a lineup viewed by
witnesses Piles, Harris, Kennedy, and Robert Kannapel Jr.
Harris, Piles, and Kannapel identified Badelle; Kennedy did
not identify anyone. Harris and Kannapel testified at trial
and identified Badelle in court as the loitering man in the
gas station who murdered Robert Kannapel Sr.
Badelle argues that the photo array was unduly sugges-
tive because there is a possibility Harris saw the photo-
graph of Badelle in the newspaper prior to being shown
the six photographs. This is pure speculation; there is
nothing in the record suggesting Harris was tainted by the
newspaper photo. Badelle does not explain the factual basis
for his argument that the lineup was unduly suggestive.
Neither contention is sufficient to sustain his challenge to
the Indiana court’s rejection of his ineffective assistance of
counsel claim. If there was no valid basis to object to the
admissibility of the in-court identifications, trial counsel’s
performance cannot have been deficient. The Indiana court
held as much, rejecting this aspect of Badelle’s ineffective
assistance of counsel claim because there was no basis to
challenge the admissibility of the in-court identifications.
Badelle II, 754 N.E.2d at 538.
Challenges to the admissibility of identification evidence
are evaluated by reference to a two-part inquiry that
focuses on whether the identification procedure was unduly
No. 04-1602 25
suggestive and whether the resulting identification is
reliable (and therefore admissible) despite any suggestive-
ness in the pretrial identification procedure. Alexander v.
South Bend, 433 F.3d 550, 555 (7th Cir. 2006) (citing
Manson v. Brathwaite, 432 U.S. 98, 113-14 (1977)); see also
Neil v. Biggers, 409 U.S. 188, 198-99 (1972). The Indiana
Court of Appeals held that because the in-court identifica-
tions were properly admitted, Badelle’s trial counsel cannot
have been ineffective for failing to object to the suggestive-
ness of the pretrial identification procedures. Badelle II, 754
N.E.2d at 538. Badelle has not addressed the state court’s
holding in this regard and persists in his approach of
presenting us only with the identical argument he made to
the Indiana Court of Appeals. In the absence of any argu-
ment that the state court’s decision was contrary to or an
unreasonable application of federal law, habeas relief is
unavailable.
5. Effectiveness of Appellate Counsel
Finally, Badelle’s brief contains two issues that he
denominates as claims for ineffective assistance of appellate
counsel. The Indiana Court of Appeals declined to address
the merits of these claims because Badelle failed to provide
the court with any pertinent citations to the record or case
law support. Badelle II, 754 N.E.2d at 541. The court relied
on Marshall v. State, 621 N.E.2d 308, 318 (Ind. 1993), for its
waiver holding:
[I]t is the responsibility of appellant to support his
argument on appeal with appropriate citations to legal
authorities as well as to appropriate sections of the
record. Bieghler v. State (1985), Ind., 481 N.E.2d 78,
cert. denied, 475 U.S. 1031, 106 S. Ct. 1241, 89 L. Ed.
2d 349. Without citation to legal authority in addition
to citation of the record, we cannot determine the
merits of the claim and, thus, consider the issue waived.
Id.26 No. 04-1602
Before asserting a habeas claim in federal court, a
petitioner must not only fairly present his claims to the
state courts, he must do so at the time, and in the way,
required by the state. Hogan v. McBride, 74 F.3d 144, 146,
modified on reh’g denied, 79 F.3d 578 (7th Cir. 1996). The
failure to do so bars review in federal court. Id.; see also
Mahaffrey, 294 F.3d at 915. Again, Badelle has demon-
strated neither cause for not adequately presenting his
claims to the state court nor a miscarriage of justice that
would justify overlooking his failure to do so.
For the foregoing reasons, the decision of the district
court denying the petition for a writ of habeas corpus is
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-22-06