In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1404

W ILLIAM R ILEY S UTHERLAND, III,
                                                Petitioner-Appellant,
                                  v.

D ONALD G AETZ, W ARDEN,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
           No. 07 C 3469—Samuel Der-Yeghiayan, Judge.



     A RGUED M AY 15, 2009—D ECIDED S EPTEMBER 14, 2009




   Before E ASTERBROOK, Chief Judge, and B AUER and
F LAUM, Circuit Judges.
  B AUER, Circuit Judge. William Riley Sutherland, III
was tried before a jury in an Illinois state court on
charges of attempted first-degree murder, aggravated
battery with a firearm and home invasion. On the
third day of trial, Sutherland’s defense counsel was held
in contempt and jailed overnight. Defense counsel
returned to court the next morning and represented
2                                              No. 08-1404

Sutherland through the conclusion of trial, at which time
a jury found Sutherland guilty of all charges. In his
direct appeal and again throughout post-conviction
proceedings, Sutherland claimed that he was denied the
assistance of counsel because the jailing of his attorney
prevented the preparation of his defense. After those
challenges were unsuccessful, Sutherland sought a writ
of habeas corpus in federal court under 28 U.S.C. § 2254.
The district court denied his petition, a decision
which Sutherland now appeals and we affirm.


                   I. BACKGROUND
  On the third day of Sutherland’s five-day jury trial,
defense counsel thrice violated a court order barring him
from eliciting testimony regarding exculpatory state-
ments Sutherland made to police. After the third viola-
tion, the court called an evening recess and ordered
counsel jailed overnight.
  The next morning, the trial resumed; defense counsel
presented its entire case, including Sutherland’s testi-
mony. On the fifth and final day of trial, the State called
one rebuttal witness, and the parties presented closing
arguments. At the conclusion of trial, Sutherland was
convicted of two counts each of attempted first-degree
murder, aggravated battery with a firearm and home
invasion.
  Sutherland first objected to his counsel’s overnight
incarceration in a motion for mistrial filed approximately
one month after his conviction. In a supporting affidavit,
No. 08-1404                                                   3

defense counsel described his experience at the Cook
County Jail. Counsel alleged that Sutherland was unable
to communicate with him during his incarceration.
Further, defense counsel stated that he was able to sleep
for only three hours during the overnight recess and, as
a result, returned to court the next day sleep-deprived
and devoid of the mental clarity to adequately present
Sutherland’s case. According to counsel, he lacked the
“presence of mind” to request either a mistrial or con-
tinuance when the trial resumed the following day. The
trial court denied the motion.1
  On direct appeal, Sutherland raised numerous chal-
lenges, including a claim that his counsel’s overnight
incarceration amounted to a constructive denial of
his Sixth Amendment right to counsel. In affirming his
conviction, the Illinois Appellate Court noted that Suther-



1
   Defense counsel’s obstinate behavior and the court’s ex-
asperation with it may be reminiscent for some of the conten-
tious interplay between the fictional characters of Vincent
LaGuardia Gambini and Judge Chamberlain Haller in the film
“My Cousin Vinnie.” On three separate occasions during
trial, Judge Haller held Vinnie in contempt and, each time,
made him spend the overnight recess in jail. However, unlike
defense counsel here, Vinnie, a New York lawyer struggling
to adapt to the rural-Alabama trial setting, found that the
accommodations in jail offered the best night’s sleep he could
find away from the Big Apple. Upon his return to the court-
room, a revitalized Vinnie dismantled the credibility of the
State’s circumstantial case and cleared the names of the “two
yutes” he represented. (And again we see that life follows art).
4                                               No. 08-1404

land did not contend that defense counsel asked to
confer with Sutherland during his night of incarceration,
that Sutherland requested to see his counsel that night,
or that such a request was denied by jail authorities.
People v. Sutherland, 

, 1015 (Ill. App. Ct.
2000). Therefore, the court reasoned, Sutherland could not
prove that he was denied his right to the assistance of
counsel. 

filed a pro se petition for post-
conviction relief in the state trial court in which he
again argued that his counsel’s incarceration violated
his Sixth Amendment rights. This time, Sutherland pre-
sented a supporting affidavit in which he alleged for
the first time that jail personnel denied his request to
meet with counsel during the overnight recess. In dis-
missing the petition, the trial court found that, because
the claim was the same constructive-denial-of-counsel
claim that Sutherland had raised on direct appeal, it was
barred by res judicata. Sutherland then brought a § 2254
petition in federal district court. Finding that the Illinois
Appellate Court had properly rejected Sutherland’s
constructive denial of counsel claim, the district court
denied the petition for a writ of habeas corpus. Suther-
land sought a certificate of appealability, which we
granted.


                    II. DISCUSSION
 Sutherland contends that he was denied his Sixth
Amendment right to assistance of counsel when he
was not allowed to confer with his counsel during an
No. 08-1404                                               5

overnight recess the night before his case-in-chief was to
be presented. Sutherland claims that the contempt order
entered against his attorney and, later, the refusal by
Cook County Jail officials to allow Sutherland and his
attorney to communicate when they were being held in
the same facility, combined to result in the denial.
   We review de novo the district court’s denial of a habeas
petition. Ben-Yisrayl v. Buss, 

, 546 (7th Cir.
2008). Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), we may grant habeas relief
only if the state court’s decision “was contrary to, or
involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States” or “was based on an unreasonable
determination of the facts in light of the evidence pre-
sented.” 28 U.S.C. § 2254(d); Williams v. Taylor, 

, 376 (2000). A state-court decision is “contrary to”
federal law, within the meaning of the federal habeas
statute, if the state court either incorrectly laid out gov-
erning United States Supreme Court precedent, or,
having identified the correct rule of law, decided a case
differently than a materially factually indistinguishable
Supreme Court case. 28 U.S.C.A. § 2254(d)(1); Calloway v.
Montgomery, 

, 943 (7th Cir. 2008). An “unrea-
sonable application” of United States Supreme Court
precedent occurs, within the meaning of the federal
habeas statute, when a state court identifies the correct
governing legal rule but unreasonably applies it to the
facts of a case or if the state court either unreasonably
extends a legal principle from the Supreme Court’s prece-
dent to a new context in which it should not apply or
6                                               No. 08-1404

unreasonably refuses to extend that principle to a new
context in which it should apply. 28 U.S.C.A. § 2254(d)(1);
Muth v. Frank, 

, 814 (7th Cir. 2005).
  This standard only applies, however, to a “claim that
was adjudicated on the merits in State court proceed-
ings.” 28 U.S.C. § 2254(d). In this case, the post-conviction
trial court applied res judicata to Sutherland’s denial-of-
assistance-of-counsel claim. Because a judgment of
res judicata is not an adjudication on the merits, see
Conner v. McBride, 

, 649 (7th Cir. 2004), the
state court decision that is subject to our review is the
judgment of the Illinois Appellate Court. In rejecting
Sutherland’s claim, that court applied the Supreme
Court’s decision in Geders v. United States, 

(1976). In Geders, the Court held that “an order
preventing petitioner from consulting his counsel ‘about
anything’ during a 17-hour overnight recess between
his direct-and cross-examination impinged upon his
right to the assistance of counsel guaranteed by the
Sixth Amendment.” 

Distinguishing from Geders,
the Illinois Appellate Court found that in Sutherland’s
case, neither defense counsel nor Sutherland was seques-
tered by a court order, nor did the trial court order the
attorney and Sutherland not to speak to each other.

.
  Moreover, the court reasoned, Sutherland did not
show that the trial court’s overnight incarceration of
his counsel for contempt prevented him from conferring
with his attorney during that period or that he desired
to do so. 

noted that Sutherland was
No. 08-1404                                               7

obligated to prove that he was actually denied his right
to consult with his attorney. 

v. Stewart,

, 54 (Ill. App. Ct. 1987)) (defendant’s place-
ment in isolation cell during overnight recesses of his
trial did not deprive him of assistance of counsel absence
evidence that defendant attempted or was prevented
from contacting counsel by jail authorities).
  Sutherland argues that, by declining to find that the
overnight jailing of his attorney amounted to a Geders-like
constructive denial of counsel, the Illinois Appellate
Court unreasonably applied Supreme Court precedent.
We disagree. Granting Sutherland’s petition would
require us to conclude that Geders applies even in cir-
cumstances where a petitioner has not demonstrated
that he attempted to communicate with counsel during a
recess. The court order in Geders, entered over counsel’s
objection, expressly prohibited the petitioner from con-
sulting with his attorney during a 17-hour overnight
recess. The Court took caution to note that it refused to
reach limitations imposed in other circumstances.
  The Illinois Appellate Court concluded that Sutherland’s
circumstances were distinct because he could only specu-
late on the limitations to his capacity to confer with
his counsel. The material facts in this case were distin-
guishable from those in Geders, and the court reached a
different conclusion. See 28 U.S.C.A. § 2254(d)(1). In light
of the evidence it had before it, the state appellate court
properly refused to extend Geders from a scenario
where the denial of the right to consult counsel was
actual to one where it was merely speculative.
8                                                No. 08-1404

  We mention the state court’s determination vis-à-vis
the record because Sutherland later attempted to supple-
ment it. In his post-conviction petition before the Illinois
trial court, Sutherland submitted an affidavit in which
he alleged for the first time that jail personnel denied his
request to meet with counsel during the overnight recess.
The state trial court refused to consider the affidavit and,
finding that Sutherland was merely raising the same
claim that he had raised on direct appeal, applied
res judicata. In reaching our determination concerning
whether the Illinois Appellate Court’s decision contra-
dicted Supreme Court law, the allegations made by
Sutherland in his affidavit are not part of our consider-
ation. Because to determine whether a state court’s deci-
sion was unreasonable, it must be assessed in light of the
record the court had before it. See Holland v. Jackson, 

, 652 (2004). While defense counsel’s affidavit
was before the Illinois Appellate Court, Sutherland’s
affidavit was not.
   Sutherland also argues that the post-conviction trial
court should have considered his affidavit and re-adjudi-
cated his constructive-denial-of-counsel claim fully on
the merits. Had the trial court opted to do so, instead of
invoking res judicata, its decision would be the focus of
our analysis here. See 

. As it is, the
Illinois Appellate Court remains the last state court to
adjudicate the claim on the merits and our analysis does
not change.
  Sutherland may appear a victim of procedural barriers;
he is not. Under the habeas statute, Sutherland’s affidavit
No. 08-1404                                              9

could have been the subject of a evidentiary hearing by
the district court if he had shown that he was not at fault
in failing to develop the evidence in state court or, if he
was at fault, that he could meet the conditions prescribed
in § 2254(e)(2). See 

. However,
Sutherland did not argue before the district court that
either of these conditions had been demonstrated nor
did the district court make such a finding. Sutherland
has advanced no reason why his affidavit should
receive consideration.
  Even assuming Sutherland’s affidavit was part of our
consideration here, we would reach the same conclu-
sion. That is because, even if Sutherland and his counsel
were prevented from conferring with each other during
the overnight recess, nothing prevented Sutherland’s
counsel from requesting the preparation time they were
denied when trial resumed the next day. That morning,
Sutherland’s counsel could have moved for a con-
tinuance in light of the circumstances that had arisen
the previous night. He did not do so. Had Sutherland
made such a motion and the court denied it, Sutherland
might have had cause to argue that his inability to
confer with counsel during the overnight recess
materially affected the preparation of his defense. As it
stands, there is no evidence before us suggesting that
Sutherland’s inability to communicate with counsel that
night had any bearing on the trial itself.
  True, Sutherland’s counsel alleged in his own affidavit
that his overnight jailing left him sleep-deprived and
devoid of the mental clarity to adequately present Suther-
10                                               No. 08-1404

land’s case or even move for a continuance. But his claim
lacks any credibility. We cannot accept that an attorney
functioning on little rest, whether it be three hours of sleep
or no sleep at all, would lack the presence of mind even to
request a simple continuance. The trial record shows that
Sutherland’s counsel never raised the issue of sleep-
deprivation with the court on the morning trial resumed;
furthermore, he cross-examined witnesses and made a
closing argument while proceeding to the trial’s conclu-
sion. In light of his capacity to perform these functions,
it is impossible to believe counsel lacked the presence of
mind to step before the court and request additional time
to prepare the case if the overnight jailing had truly
impeded his ability to do so.
  We comment in passing, however, that the problem
need not have arisen at all had the trial court postponed
the sanctions until the trial was over. That is, the court
could have simply held counsel in contempt, but post-
poned his confinement until the conclusion of trial. Never-
theless, Sutherland has not presented any argument
that shows the state court’s adjudication of his claim
was contrary to, or involved an unreasonable applica-
tion of, Supreme Court precedent.


                    III. CONCLUSION
  For the reasons set forth above, we A FFIRM the
district court’s denial of Sutherland’s habeas corpus
petition.

                            9-14-09