In the

United States Court of Appeals
               For the Seventh Circuit

No. 09-2560

JOSEPH A. S TOCK,
                                                Petitioner-Appellant,
                                  v.

D AVE R EDNOUR, Warden,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 06 C 448—David H. Coar, Judge.



     A RGUED A PRIL 5, 2010—D ECIDED S EPTEMBER 3, 2010




 Before E ASTERBROOK, Chief Judge, and B AUER and
W OOD , Circuit Judges.
   W OOD , Circuit Judge. On June 20, 1997, Connie Wagner
was found brutally murdered in her home in Palatine,
Illinois. Wagner’s wrist had been bound with a tele-
phone cord and she had been stabbed more than 180
times. She appeared to have struggled with her assailant
or assailants. Joseph Stock, Wagner’s former boyfriend,
became the prime suspect. Three months after the
2                                             No. 09-2560

murder, Stock’s friend Alfonso Najera told the police
that four days after the murder Stock had confessed
to killing Wagner. Inexplicably, the police left the os-
tensibly violent Stock on the streets for more than
three years after learning of his purported confession,
arresting him only in February 2001. Further compli-
cating matters, none of the physical evidence found in
Wagner’s home pointed to Stock; the clothes he wore
the day of the murder bore no traces of blood; and
Stock voluntarily went to the police station to assist
with the investigation on the day after the murder and,
at that time, showed no indications of a struggle. It was
undisputed that Wagner was involved in drugs and was
in debt to drug dealers with gang affiliations, and her
neighbors reported seeing a Hispanic man driving
slowly down her street before the murder. Still, relying
primarily on Najera’s tip, Stock was charged and con-
victed in 2002 of first-degree murder.
  Our task is not to pass judgment on the facts sur-
rounding the crime and the investigation. We concede
readily that some suggest Stock’s innocence, while
others seem quite consistent with his guilt. Rather, we
must decide whether this is one of the cases in which
a federal court may issue a writ of habeas corpus to
someone convicted in state court, given the standards
set forth in the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. AEDPA
tightly constrains our review. Stock argues that his right
to cross-examine the witnesses against him was uncon-
stitutionally constrained; in particular, he believes that
the trial court’s evidentiary decisions prevented him
No. 09-2560                                              3

from effectively challenging Najera’s testimony. We
conclude, however, that the Illinois court reviewing
Stock’s conviction did not unreasonably apply clearly
established federal law, because the testimony he
intended to elicit was inconclusive for the purpose of
impeachment. We therefore affirm the decision of the
district court to dismiss his petition.


                             I
  On the evening before the murder, Wagner told Stock
that she was moving to Texas. This marked the end of a
dating relationship that had lasted for several months. The
state’s theory of the case was that Stock, angry with
Wagner over the break-up, used a copy of her key to
enter the house, killed her, changed into her brother’s
clothes, and drove off in her car. The last of those steps
was supported by the fact that Stock’s fingerprints were
found in his ex-girlfriend’s car. As noted above, the
physical evidence discovered in Wagner’s home—hair,
fingerprints, and footprints—did not inculpate Stock.
  Central to the state’s case was the testimony of Najera.
Najera’s testimony is also the subject of this appeal, and
so we review it in detail here. Najera testified that four
days after the murder, Stock called him and said that
he murdered Wagner because he was angry. After a
few months, Najera went to the police and relayed this
story. He signed a statement, written by a prosecutor,
outlining the conversation. He also agreed to participate
in a recorded telephone call with Stock in which he
would try to elicit another confession. The recorded
4                                             No. 09-2560

conversation did not go as the state had anticipated.
Stock made a number of unsolicited, exculpatory state-
ments during the call; Najera ignored some and
affirmed others. Najera also failed to mention the con-
fession explicitly. The closest that Najera came to con-
fronting Stock was the following exchange:
    Stock: I mean shit—you still believe me, don’t you?
    Najera: Yeah, I believe you, dude. I believe you, man.
    I just want to make sure that you didn’t say some-
    thing to anybody else and they come to court and then.
    Stock: That what?
    Najera: You didn’t tell anybody else—you know
    what I’m saying? Cause they come to court and
    then I look like, you know.
    Stock: Tell anybody what?
    Najera: Anything. I mean did they subpoena anybody
    else?
Stock believes that his exclamation, “Tell anybody
what?” shows that he never confessed to Najera and
thus did not know what his friend cautioned against
“tell[ing] anybody else.” Najera’s repeated failures to
challenge Stock’s denials, according to Stock, further
undermine Najera’s claim that Stock confessed to him
before the phone call.
  Knowing that Najera would testify about      the confes-
sion, Stock planned to use the recordings     to impeach
Najera, by showing that Najera neither         challenged
Stock’s exculpatory statements nor followed   through on
No. 09-2560                                              5

his promise to obtain confirmation of Stock’s confession.
Before trial, the state filed a motion in limine to bar the
introduction of the recorded conversation as hearsay.
It argued that the out-of-court conversation was
nothing but “self-serving statements by an accused” and
thus inadmissible hearsay, citing People v. Patterson, 

(Ill. 1992). Stock argued that he did not intend
to use the statements to prove the truth of the matter
asserted, i.e. his innocence, but to impeach Najera by
omission. The trial court concluded that the recorded
conversations were inadmissible hearsay. At the same
time, however, the judge said that if Najera denied that
he failed to confront Stock about the confession during
the call, then the defense could question Najera about
the substance of the call, although it could not introduce
the actual recorded conversation. At the state’s request,
the trial court later clarified its ruling, permitting the
introduction of Najera’s “tell anybody else” statement
to rebut the defense’s contention that he did not raise
the issue with Stock, but still prohibiting the defense
from introducing Stock’s “Tell anybody what?” response.
In short, the court decided that the defense could con-
front Najera about his failure to raise the confession
during the recorded call, but in that case, the state
could introduce Najera’s allusion to the supposed con-
fession, and the defense could not respond with Stock’s
potentially exculpatory response. At trial, the defense
cross-examined Najera extensively about a range of
issues, but stayed away from the recorded conversation.
 As noted earlier, Stock was convicted of first-degree
murder. He was sentenced to 90 years’ imprisonment.
6                                              No. 09-2560

Stock appealed his conviction to the Illinois Court of
Appeals, raising five issues including the Confrontation
Clause claim that forms the basis of his § 2254 petition.
Stock argued that the restrictions placed on the cross-
examination of Najera by the trial court violated his right
guaranteed by the Sixth and Fourteenth Amendments
to confront his accuser. The appellate court quoted Dela-
ware v. Fensterer, 

(1985), for the proposition
that “the Confrontation Clause guarantees an oppor-
tunity for effective cross-examination, not cross-exam-
ination that is effective in whatever way, and to what-
ever extent, the defense might wish.” 

(In this
connection, the appellate court appeared to ignore a
series of Supreme Court cases, discussed in further
detail below, holding that certain limitations on cross-
examination are unconstitutional.) The court also dis-
cussed the propriety of the evidentiary decision under
Illinois law, noted the discretion given to trial courts
under state law to reach evidentiary decisions, and com-
mented that, even if the decision was in error, any
error would have been harmless. The appellate court
affirmed Stock’s conviction and sentence, and the Illinois
Supreme Court denied his petition for leave to appeal.
   Finding no remedy in the state courts, Stock turned to
the federal courts and to the writ of habeas corpus. The
United States District Court for the Northern District of
Illinois concluded that Stock satisfied the threshold
procedural requirements for the § 2254 petition, but
concluded that the merits of Stock’s claim did not clear
the high bar for relief—Stock did not establish that the
Illinois appellate court unreasonably applied clearly
No. 09-2560                                               7

established federal law when it rejected his Confrontation
Clause claim. On this basis, the district court denied
Stock’s petition for a writ of habeas corpus. At Stock’s
request, the district court certified his request for a cer-
tificate of appealability.


                             II
  Our review of Stock’s petition is governed by AEDPA,
28 U.S.C. § 2254, which permits a federal court to issue a
writ of habeas corpus only if the state court reached a
decision on the merits of a claim, and that decision
was either “contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States,” 

or “was based on an unreasonable deter-
mination of the facts in light of the evidence presented
in the State court proceeding,” 

Stock
brings his petition under § 2254(d)(1). Whether the state
court’s decision was contrary to or an unreasonable
application of clearly established federal law “is a
mixed question of law and fact that we traditionally
also review de novo but with a grant of deference to
any reasonable state court decision.” Jackson v. Frank, 

, 662 (7th Cir. 2003) (quoting Schaff v. Snyder, 

, 522 (7th Cir. 1999) (emphasis in original)). In
this case, as in all cases that come to us under AEDPA, we
emphasize that our decision expresses no independent
opinion about the correctness of the state court’s judgment.
  Section 2254(d)(1) has two branches—the so-called
“contrary to” and “unreasonable application of” theories.
8                                                 No. 09-2560

The Illinois appellate court’s decision will be “contrary
to” clearly established federal law “if the state court
arrive[d] at a conclusion opposite to that reached by [the
Supreme] Court on a question of law” or “if the state
court confront[ed] facts that [were] materially indistin-
guishable from a relevant Supreme Court precedent and
arrive[d] at a result opposite to [the Supreme Court].”
Williams v. Taylor, 

, 405 (2000). Our review is
of the state court’s decision, not the cases it cited (or
failed to cite) along the way. See Early v. Packer, 

,
8 (2002) (“[Section 2254(d)(1)] does not even require
awareness of [Supreme Court] cases, so long as neither
the reasoning nor the result of the state-court decision
contradicts them.”) (emphasis in original). In this court,
Stock argues that the Illinois appellate court’s holding
was contrary to the Supreme Court’s decisions in Dela-
ware v. Van Arsdall, 

(1986), and Davis v.
Alaska, 

(1974). Stock did not present this
argument to the district court, however, and so it is not
properly before us. Even if he had, we believe that
Stock’s case is better understood as an assertion that the
state court unreasonably applied the applicable law; the
facts of Stock’s case are distinguishable from the
Supreme Court precedents, but they do call to mind the
central holdings of those cases. Stock tries valiantly to
show that the Illinois court failed to apply those
principles to his case, and it is to this argument that we
now turn.
  In order for a state court’s decision to reflect an “unrea-
sonable application” of governing Supreme Court juris-
prudence, the state court must have done something
No. 09-2560                                                 9

worse than merely “appl[ying] clearly established federal
law erroneously or incorrectly.” The application of federal
law must be “objectively unreasonable” before relief is
possible under this branch of AEDPA. See 

. We have observed that a state court may
act unreasonably by failing to apply established federal
law to facts that are materially indistinguishable to
those examined by the Supreme Court. See Williams v.
Bartow, 

, 498 (7th Cir. 2007). Even in this
instance, AEDPA tightly constrains the availability of
the writ, particularly where a state court has engaged in
a careful inquiry into the relevant question—here,
whether the right of confrontation was infringed.
Compare Lindh v. Murphy, 

(7th Cir. 1996)
(en banc), rev’d, 

(1997) (finding no violation of
the Confrontation Clause under the AEDPA standards
of review), with Lindh v. Murphy, 

(7th Cir.
1997) (issuing the writ on the same facts applying the pre-
AEDPA standards on remand).
  Turning to the law that Stock asserts was applied unrea-
sonably, we begin by recalling that the Supreme Court
has characterized the right of confrontation as “para-
mount.” 

. It has also warned that
“where constitutional rights directly affecting the ascer-
tainment of guilt are implicated, the hearsay rule may
not be applied mechanistically to defeat the ends of
justice.” Chambers v. Mississippi, 

, 302 (1973).
Furthermore, the Court has made clear that the limita-
tions on impeachment may constitute violations of the
Confrontation Clause. In Davis, the Court reversed the
decision of the trial court to enforce a protective order
10                                              No. 09-2560

that prevented the defense from confronting a key pros-
ecution witness with his juvenile criminal record. And
in Chambers, the Court rejected a trial court’s application
of state evidentiary rules that precluded the defense
from examining a witness in a manner that would im-
plicate that witness in the criminal conduct.
  Stock asserts that clearly established federal law
provides that “the Confrontation Clause is violated
when a trial court unreasonably restricts or completely
prohibits a defendant from asking questions necessary
to impeach the credibility of witness testimony.” We
accept this formulation for purposes of the argument.
Indeed, we too have noted that state interests, including
those reflected in the state’s evidentiary rules, may need
to bend in order to ensure that defendants have the right
to confront the witnesses against them. See, e.g., Dunlap
v. Hepp, 

, 742 (7th Cir. 2006). But it is equally
well established that the law calls for a case-specific
inquiry into a number of competing priorities. See 

Supreme Court said in Van Arsdall, “[T]rial
judges retain wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among
other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repeti-
tive or only marginally 

. Even
Stock’s formulation of the law acknowledges that it is
only unreasonable limits that create Confrontation Clause
problems. Before any later court can decide whether a
limitation imposed by the trial court was reasonable
or unreasonable, it must look at the potential testimony
and the bases for exclusion.
No. 09-2560                                             11

  The trial court in Stock’s case was aware of the fine
lines that it was asked to draw. The court endeavored to
balance Stock’s ability to challenge Najera’s testimony
against the basic evidentiary principle that self-
serving, out-of-court statements are inadmissible for
the purpose of exculpating the declarant. See, e.g.,
United States v. Haddad, 

, 1258 (7th Cir.
1993) (“Ordinarily a defendant’s self-serving, exculpa-
tory, out of court statements would not be admissible.”).
The trial court initially excluded Stock’s statements
as inadmissible hearsay. In response to the motion for
clarification, the defense asked the court to admit Stock’s
statement, “Tell anybody what?” for the purpose of
impeaching Najera’s claim that he confronted Stock with
the confession during the recorded phone call. Defense
counsel urged that this was a permissible use, and that
the exchange was not being offered for the truth of
the matter asserted, see FED. R. E VID. 801(c). But the
trial court worried that the jury would take this state-
ment as Stock’s denial of his guilt, and the court
concluded that it could not countenance the prejudice
that would come along with admitting the evidence.
The Illinois appellate court affirmed this conclusion,
relying on People v. Hotsy, 

(Ill. App. Ct.
1986). Despite these limitations, Stock was permitted to
cross-examine Najera extensively, including on issues
of potential bias and on his failure directly to confront
Stock with his purported confession during the recorded
conversation. It may be troubling that Stock was barred
from providing the jury with the context surrounding
Najera’s statements and omissions. But it was up to
12                                            No. 09-2560

the trial court to draw the line, and we are not prepared
to say that its actions lacked support.
  Beyond these countervailing interests, we think that
there is a more fundamental problem with Stock’s argu-
ment. The Conformation Clause permits the defendant
“to expose to the jury the facts from which jurors, as
the sole triers of fact and credibility, could appropri-
ately draw inferences relating to the reliability of the
witness.” 

. In this connection, we
are not concerned with immaterial limitations on cross-
examination. See Van 

(calling
for deference to the trial court when excluding
“marginally relevant” evidence and asking whether
the jury would have had a “significantly different impres-
sion” of the witness’s credibility had the testimony
been admitted). Once again, the only question before
us is whether the state court’s conclusion was an objec-
tively unreasonable application of the Supreme Court’s
Confrontation Clause decisions. In specific terms, we
must ask whether the state court acted unreasonably
when it concluded that the excluded testimony was not
relevant enough.
  To begin with, we note that this was impeachment
testimony. We can assume that Stock would have benefit-
ted from being able to introduce out-of-court denials
without subjecting himself to cross-examination, but
excluding this obvious hearsay does not implicate the
Confrontation Clause. Stock tries to work around the
hearsay problem by arguing that the episode shows
that Najera was lying: Najera did not directly confront
No. 09-2560                                            13

Stock about the confession (as he promised the police
he would do), and Najera’s affirmations of Stock’s pro-
fessions of innocence might have cast doubt in the
jury’s mind on whether Stock really did make an earlier
confession to Najera. Impeachment is certainly a proper
purpose, but the purported value of these statements
is undercut by their ambiguity. For whatever reason,
Najera and Stock spoke elliptically throughout their
conversation, exemplified by the “tell anybody else”—“Tell
anybody what?” exchange. We have re-read these state-
ments many times, and we can find nothing in them
that establishes that the two men were talking about
a confession. Even Najera’s affirmations of Stock’s
denials—e.g., “I believe you, dude”—are inconclusive.
For all we know, Najera was playing his part in a
charade Stock was creating or affirming Stock’s cover
story (rather than the truth).
  Further, bearing in mind the narrow permissible
purpose of the evidence, the trial court reasonably could
have concluded that there was little value added for
the defense in these statements. Despite Stock’s argu-
ments to the contrary, we cannot say with any degree
of confidence that this evidence if admitted would
show that Najera was not to be trusted. The fact that
Najera did not contradict Stock (who might have really
been his friend) could mean that he was loyal, scared,
unaware, or any number of other things. And Stock would
have gained little through the use of the ambiguous
“Tell anybody what?” line, especially since the court
permitted the defense to cross-examine Najera on his
failure directly to raise the confession. Although the
14                                            No. 09-2560

trial court may have given the state a slight advantage
when it permitted the state to introduce the “tell
anybody else” statement without including Stock’s re-
sponse, these distinctions are subtle at best. In Davis,
the Supreme Court worried about the exclusion of a
witness’s prior offense that would have explained the
police’s suspicion of his involvement, and in Chambers,
the trial court improperly excluded the testimony of
several witnesses that strongly suggested that another
witness had committed the crime and confessed to it
soon thereafter. The Najera-Stock exchange is nothing
like these examples.
  Like our Lindh decisions, this is a case where the
AEDPA standards have bite. As we have emphasized
throughout, the only question before us is whether the
state appellate court’s application of clearly established
federal law lies “well outside the boundaries of permis-
sible differences of opinion.” Hardaway v. Young, 

, 762 (7th Cir. 2002). Given the vagueness of the
conversation, we answer that question in the negative—
reasonable minds could differ on whether the trial
court unconstitutionally infringed Stock’s right to con-
front Najera, and thus the state appellate court did not
act unreasonably in upholding Stock’s conviction.
  It follows therefore that the district court was correct
to dismiss Stock’s § 2254 petition. We therefore A FFIRM
the judgment of the district court.



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