NONPRECEDENTIAL DISPOSITION
To be cited only in accordance With Fed. R. App. P. 32.1

fiflm’teh grates Court of gppeals

For the Seventh Circuit
Chicago, Illinois 60604

   

Argued December 5, 2007
Decided February 12, 2008

Before
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 06—3465
WILLIAM L. HUMBLES, Appeal from the United States District
Petitioner—Appellant, Court for the Northern District of Indiana,
South Bend Division.
v.
No. 05 C 574
EDWARD G. BUSS,
Respondent-Appellee. Allen Sharp, Judge.
0 R D E R

Following a jury trial in Indiana state court, William L. Humbles was convicted of
attempted murder, aggravated battery, and battery. Because he was also a habitual defender
under Indiana law, Humbles was sentenced to a term of 30 years.

Humbles’ conviction was affirmed on direct appeal by the Indiana Court of Appeals (se_e
Humbles v. State, 

(Ind. Ct. App. 2000)), and his petition for transfer to the
Indiana Supreme Court was denied. Later, Humbles filed a petition for postconviction relief,
which was also denied. The trial court’s denial of Humbles’ postconviction petition was
affirmed on appeal in an unpublished decision by the Indiana Court of Appeals in May of 2005.
Again, the Indiana Supreme Court declined to accept Humbles’ petition for transfer.

No. 06-3465 2

Having exhausted his state remedies, Humbles filed a petition for a writ of habeas corpus
in the United States District Court for the Northern District of Indiana. The petition was denied,
and Humbles now appeals that decision.

When considering a petition for federal collateral relief, courts must presume that the
facts, as found by the state courts, are correct, 28 U.S.C. § 2254(e)(l); Lindh V. Mgphy, 

(7th Cir. 1996) (en banc), rev’d on other grounds, 521 US. 320 (1997). The petitioner has
the burden of rebutting the presumption of correctness by clear and convincing evidence. 28
U.S.C. § 2254(e)(l). And this Humbles has not done. So we accept the facts as set forth by the
Indiana Court of Appeals on direct appeal. Those facts, which paint a picture of a New Year’s
Eve celebration that turned violent, are that Humbles and the victim, Titus Larkin, had known
each other since childhood. Several years earlier they participated in a robbery together, and both
men received criminal convictions. Apparently, Humbles blamed Larkin for spilling the beans to
the police about Humbles” involvement in the robbery. And ever since then, Humbles has
harbored a grudge against Larkin.

Larkin was attending a 1998 New Year’s Eve party at his cousin’s house in South Bend,
Indiana. At approximately 2:30 am. on New Year’s Day, Larkin walked (or perhaps carried, as
she was drunk) his girlfriend to a vehicle parked outside. According to the court of appeals,
Humbles and two other men were sitting across the street in another vehicle. When Larkin was
outside, Humbles summoned him. Larkin approached the driver’s side window and Humbles
accused Larkin of telling the police about Humbles’ involvement in the robbery. When Larkin
looked into the vehicle, he saw a black automatic weapon on the seat between Humbles” legs.
Fearing that Humbles was going to shoot him, Larkin ran. Humbles fired three shots at Larkin,
two of which missed. One, however, struck Larkin in the right buttock and exited through his
groin. Larkin’s left testicle was severely damaged and had to be removed.

On his direct appeal, Humbles claimed that the trial court improperly instructed the jury
and that the state presented insufficient evidence to sustain his conviction for attempted murder.
In his state postconviction petition, Humbles claimed that his trial counsel rendered ineffective
assistance. He pointed to three errors: (1) counsel failed to conduct an adequate investigation
into the facts of a prior false informing charge against Larkin; (2) counsel failed to object to
statements made by the prosecutor in closing arguments; and (3) counsel failed to object to the
admission of a photographic array and references to it in testimony. Humbles also alleged that
the prosecutor committed a Brady violation by withholding evidence pertaining to Larkin’s prior
false informing charge.

In his petition for federal habeas relief, Humbles reasserted his three claims of ineffective
assistance of trial counsel and his Brady claim. Now, on this appeal, Humbles also raises his
challenge to a jury instruction that was rejected on direct appeal. He also adds a new alleged
error committed by his trial counsel——that counsel told the jury during his opening statement that
Humbles would testify but, as it later turned out, he declined to take the stand.

No. 06-3465 3

Humblesa claims bump up against principles of habeas law which greatly limit the scope
of the writ. We cannot consider the merits of a petition for habeas corpus unless the state courts
have first had a full and fair opportunity to review the claims. In other words, a petitioner must
have fully exhausted his remedies in state court before turning to the federal courts for relief. If a
petitioner fails to present a specific claim to the state court, it is defaulted. Farrel] v. Lane, 

(7th Cir. 199]). A procedural default also occurs when a state court disposes of a claim
on an independent and adequate state law ground. Coleman V. Thompson, 501 US. 722 (1991).
When a petitioner presents a defaulted claim for federal habeas review, we may consider the
claim only if he can establish cause and prejudice for the default or that the failure to consider the
claim would result in a fundamental miscarriage of justice.

In addition, federal courts “shall not” grant the writ on any claim that was, in fact,
considered on the merits in the state court, unless the state court decision was contrary to or
involved an unreasonable application of clearly established federal law as determined by the
United States Supreme Court, or resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the state court proceedings. 28
U.S.C. § 2254(d); Williams v. Taylor, 529 US. 362, 376 (2000).

What that means and the extent of the hurdles it presents to a petitioner is becoming
clearer and clearer. Recently in Calloway v. Montgomefl, 

] (7th Cir. Jan. 14,
2008), we discussed the scope of “clearly established law,” concluding that it had not much
scope at all. S_ee Carey v. Musladin, 

(2006). The Court has recently
reemphasized that a state court’s application of clearly established law is acceptable, even if it is
likely incorrect, so long as it is reasonable. Wright v. Van Patten, h S. Ct. , 

.

 

With these principles in mind, we turn to Humbles’ claims that he received ineffective
assistance of counsel. The state court properly used the test set out in Strickland v. Washington,
466 US. 668 (1984), to evaluate the claim of ineffective assistance. It considered whether
counsel’s performance was deficient and whether that deficiency prejudiced Mr. Humbles.

Humbles contends that his counsel was ineffective for failing to investigate a prior charge
against Larkin for false informing. The charge arose out of Larkin’s accusing someone else of
shooting him in a previous incident. Humbles” theory is that with this information, counsel could
have cast doubt on Larkin’s credibility when he testified that Humbles shot him after the 1998
New Year’s Eve party.

As to this claim, the Indiana Court of Appeals first pointed out that counsel did ask
Larkin, “Do you have a prior conviction for false informing?” Larkin said he did, even though he
had not actually been convicted of the crime. In addition, the court pointed out that there was no
clear evidence that counsel did not investigate the matter. Counsel stated only that he had “no
independent recollection” of whether he investigated the records surrounding the charge.

No. 06—3465 4

The state court noted that the charge did not result in a conviction and thus would be
inadmissible under Indiana Rule of Evidence 609(a) and (b). The court also recognized,
however, that if an evidentiary rule resulted in a violation of Humbles’ constitutional right to
cross-examination, the evidence should be admitted despite the rule. In Hurnbles’ case, the court
found no constitutional violation. Nor was the evidence admissible under Indiana Rule 404(b).
Because the evidence would not have been admissible, and because another witness testified that
Larkin was shot by the driver of the car Larkin approached, the court found there was no
prejudice to Humbles.

Larkin argues that these conclusions were an unreasonable application of Strickland. We
cannot agree. The Indiana court’s view was that the factual basis of Humbles’ claim is shaky
(i.e., it was unclear from the record that counsel did not investigate) and we must accept that
View of the facts. In addition, there were good reasons why counsel would not have wanted to
delve deeply into the facts surrounding the charge of false informing. The incident that led to the
charge involved LeRoy Humbles, petitioner’s brother, and showed “bad blood”-between Larkin
and petitioner Hurnbles, thus adding to his motive to shoot Larkin. It could well have been a
strategic move to decline to pursue the matter. We have said that “a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance[.]” U.S. ex rel. Hampton v. Leibach, 

, 246 (7th Cir. 2003).

The second way in which counsel is said to have been ineffective is in his failure to object
to a statement in the prosecutor’s closing argument. The prosecutor said:

Also, I want to talk to you about one person whose rights and
concerns are often lost in this process that we call justice. And
that’s the victim, Titus Larkin.

He’s the primary reason we’re here. We’re here because he
trusted that the system would work. He was shot out in front of a
friend’s house on New Years Eve. He didn’t deserve that, no one
should have to go through that.

He called the police, he cooperated with the system. He
trusted that the system would work for him.

The Indiana Court of Appeals found that any impropriety in this statement was limited by
the trial court’s instruction to the jury that the state must prove each element of the crime beyond
a reasonable doubt. Furthermore, the court doubted that the comments had a prejudicial effect on
the jury, given the substantial evidence of Humbles’ guilt.

No. 06-3465 5

Relying on Martin v. Grosshans, 

(7th Cir. 2005), Humbles argues that our
cases say that failure of defense counsel to address a prosecutor’s inflammatory statements
constitutes deficient performance.

It is true that in Martin we determined that counsel’s failure to move for a mistrial based
on the prosecutor’s closing argument showed that his performance was deficient under
Strickland. However, in that case--tried in Wisconsin—-the comment involved references to two
notorious Wisconsin murderers: one, well-known to almost everyone in and out of Wisconsin,
was Jeffrey Dahmer. The prosecutor said that even people like Dahmer had character witnesses.
We were particularly troubled because the trial took place in 1995 when the memory of
Dahmer’s “sexual exploitation and gruesome murders of young men was still fresh in the minds
of area residents.” We hardly think that somehow the reference to Dahmer in that case and the
reference to the victim’s rights here are in any way comparable. We cannot find that the Indiana
Court of Appeals” decision is unreasonable.

Humbles also contends that counsel’s failure to object to a reference to “mug shots” and a
comment by an investigating officer showed that he was ineffective. During the trial, the
prosecutor questioned Larkin about his identification of Humbles as the man who shot him.
Larkin said that a few days after the shooting, a police officer asked him to identify the shooter
from a photographic array. Of the array, Larkin said, “It’s from the County, mug shots.” Later
the police officer was asked, during his trial testimony, where he obtained the photographs in the
array. He said they came “from our files at the police department.”

The Indiana Court of Appeals stated that under Indiana law a reference to “mug shots” is
improper. But the court also noted that there was only a single reference to “mug shots.” And as
to the officer’s statement, the court noted that the picture of Humbles in the photographic array
did not show that his picture was the result of an arrest; it did not show him holding a placard
reading “South Bend Police Department” as it did with some of the others. The court said that an
objection to the officer’s statement as to the origin of the photos might have been sustained, but it
did not follow that the failure to object rendered counsel’s performance ineffective. We cannot
find that the court unreasonably applied Strickland. It is entirely possible that counsel declined to
object, for instance, in order not to call attention to the fleeting reference to “mug shots” or to the
reference to the police department as the origin of the photos.

Another way in which counsel is alleged to have been ineffective is in his failure to object
to the jury instruction on attempted murder. As we will discuss, the jury instruction was not
erroneous; therefore, this claim must fail.

It is clear that counsel did err when he said in his very short opening statement (it runs
slightly more than one page of the trial transcript) that

No. 06-3465 6

Mr. Humbles will testify and tell you that he wasn’t even there that
night, that he was someplace else being a DJ. at a New Years Eve

party.

But when the trial ended one day later, Humbles had not testified. In Hampton v. Leibach, we
considered a broken promise such as this to constitute deficient performance.

The problem for Humbles, however, is that it is in this court that he raises the issue for
the first time, and for that reason the state courts did not have an opportunity to consider it.

Therefore, Humbles has defaulted his claim, which “precludes us from reaching the merits.”
Lieberman V. Thomas, 

, 667 (7th Cir. 2007). We have said that

[e]ver since Wainwright v. Sykes, 433 US. 72, 

, 

(1977), federal courts have held that a defendant's
failure to assert his constitutional contentions at the time, and in
the manner, required by state law forfeits any entitlement to federal
collateral review of those contentions, unless the defendant can
show cause for and prejudice from the omission, or a miscarriage
of justice.

Brooks v. Walls, 

, 523 (7th Cir. 2002).

Humbles acknowledges that the claim is defaulted. However, he says that he can show
that our not considering his claim would result in a miscarriage of justice. He also
acknowledges, relying on Schlup v. Delo, 513 US. 298 (1995), that to show a miscarriage of
justice he must present evidence of innocence strong enough to undermine our confidence in the
outcome of the trial. He says he meets the standard because without his testimony the jury had
no choice but to believe Larkin. We cannot accept this argument.

As we see the situation, the problem is not that Humbles did not testify. It seems highly
unlikely that the persuasive effect of his testimony saying he was somewhere else at the time of
the shooting would have outweighed the cross—examination he would have faced. The failure to
present his testimony clearly did not result in a miscarriage of justice. The problem is that his
attorney told the jury he would testify. While that should not happen, we cannot find in this case
that the promise caused a miscarriage of justice. It is highly unlikely that the jury convicted
Humbles because counsel said he would testify, rather than because the consistent testimony of
the victim that Humbles was the shooter was reliable.

Humbles’ final two claims have the same shortcomings: he did not receive a certificate
of appealability [28 U.S.C. § 2253(c)], and for both claims, as in the previous one, state law

No. 06—3465 7

determines the outcome. The first shortcoming is easily corrected; we will hereby grant a
certificate of appealability.

The issue of state law, though, stands between Humbles and the relief he seeks. Humbles
contends that he was denied due process because the jury instructions did not adequately state
that he possessed the specific intent to commit murder. The instruction he objects to is as
follows:

You may infer intent to kill from the deliberate act of using a
deadly weapon against another in a manner likely to cause death or

serious injury.

The Indiana Court of Appeals considered and rejected the claim in Humbles” direct appeal. The
court pointed out that the Indiana Supreme Court had specifically approved the instruction in
Halbig V. State, 

(1988). There was, in short, an independent and adequate state
law basis for the decision. We do not reexamine state—court determinations on state-law
questions when the issue does not rise to the level of a violation of due process. Middleton v.
McNeil, 54] US. 433 (2004). This issue does not. We will also point out that the jury was
instructed that:

 

To convict the Defendant of Attempted Murder . . . the State
must have proved each of the following elements beyond a
reasonable doubt:

l. The Defendant

2. intending to kill Titus Larkin

3. did shoot Titus Larkin

4. which was conduct constituting a substantial step toward

the commission of the intended crime of murder.

The other claim is that the state suppressed exculpatory evidence about Larkin’s prior
charge of false informing. This claim is hard to credit because cross-examination of Larkin
shows, as we have noted, that counsel knew of the charge. More importantly, the Indiana Court
of Appeals found that Humbles had waived the claim when he failed to raise it on direct appeal,
rather than in his postconviction motion. Indiana requires claims of prosecutorial misconduct
based on the suppression of exculpatory evidence to be brought on direct appeal. See Minnick v.
State, 

(1998); Collins v. State, 

(2004). Thus, the state court
decision on this claim also rests on an independent and adequate state ground. Humbles fails to
meet state procedural requirements, Coleman, 501 US. 722, and those requirements are regularly

followed. Franklin v. Gilmore, 

(7th Cir. 1999).

 

For all of these reasons, the judgment of the district court is AFFIRMED.