In the

     United States Court of Appeals
                 For the Seventh Circuit
No. 13-1314

KEITH A. LEE,
                                               Petitioner-Appellant,

                                 v.


BRIAN FOSTER,
                                              Respondent-Appellee.

        Appeal from the United States District Court for the
                    Eastern District of Wisconsin.
       No. 1:10-cv-00040 — William C. Griesbach, Chief Judge.


    ARGUED OCTOBER 29, 2013 — DECIDED APRIL 28, 2014


   Before WOOD, Chief Judge, and KANNE and HAMILTON,
Circuit Judges.
   KANNE, Circuit Judge. Keith Lee filed a petition for a writ of
habeas corpus in the United States District Court for the
Eastern District of Wisconsin. The district court denied the
petition, but certified three issues for appeal: (1) whether an in-
court identification of Lee violated his rights to due process; (2)
whether an adequate and independent state ground precluded
consideration of Lee’s claim for ineffective assistance of
2                                                  No. 13-1314

counsel; and (3) whether admission of an out-of-court state-
ment at trial violated his Sixth Amendment right to confront
witnesses. We affirm.
                         I. BACKGROUND
   Lee was tried and convicted of the first-degree reckless
homicide of Joshua Meyers along with two counts of armed
robbery. The government presented evidence that he and
Victor Thomas traveled to Meyers’s residence in Oshkosh,
Wisconsin to collect a drug debt. Four people were present
when Thomas and Lee arrived: Meyers’s half-brother Kristop-
her Johnston, Meyers’s friend Ceilya Paez, Paez’s two-year-old
daughter, and Meyers. Soon after their arrival, a fight broke
out, at which point Lee pulled a gun and shot Meyers in the
abdomen. Meyers died shortly after being shot.
    Lee and Thomas left the apartment and drove to Milwau-
kee where they met with Christopher Johnson. Johnson drove
Lee and Thomas to a gas station and then dropped Lee off at
a street corner in Milwaukee. Shortly thereafter, Johnson and
Thomas were pulled over by Milwaukee police and arrested.
Lee was apprehended in Chicago approximately one month
later.
   Lee was found guilty following a five-day jury trial. He
appealed his conviction, which was affirmed by the Wisconsin
Court of Appeals. Lee then filed a postconviction motion with
the Wisconsin circuit court, which was denied. The Wisconsin
Court of Appeals affirmed and the Wisconsin Supreme Court
denied further review. He then filed a petition for a writ of
habeas corpus with the district court, which denied the petition
No. 13-1314                                                       3

but certified three issues for appeal. We will address each in
turn.
                           II. DISCUSSION
    The Antiterrorism and Effective Death Penalty Act, 28
U.S.C. § 2254, permits habeas relief only if the state-court
adjudication resulted in a decision that “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” 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 proceeding.” 28 U.S.C. § 2254(d).
When reviewing a petition for a writ of habeas corpus, “we
review the district court’s findings of fact for clear error and its
rulings on issues of law de novo.” Bintz v. Bertrand, 

,
865 (7th Cir. 2005) (quoting Denny v. Gudmanson, 

,
900 (7th Cir. 2001)). As all three of Lee’s claims involve issues
of law, our review of the district court’s ruling is de novo.
   A. Identification Procedure
    Lee first challenges the in-court identification by Christo-
pher Johnson. Eleven days before Lee’s trial, the police showed
Johnson a photo array, which included pictures of both Victor
Thomas and Lee. Johnson was not able to pick out Lee’s photo
from the lineup,—though he was able to identify Thomas—but
told detectives that he could identify the man he gave a ride if
he saw him in person. In return for his testimony against Lee,
the detectives told Johnson that they would testify on his
behalf in his unrelated trial.
4                                                     No. 13-1314

    At trial, Johnson testified to the extent that he knew Lee. He
stated that though he had seen Lee “a couple of times … I
never shook hands or none of that like that” and that he would
be able to recognize him if he “saw him today.” Thereafter,
Johnson identified Lee as the man in the courtroom who, while
riding with Thomas and himself, admitted “pop[ping]” a
“guy” in Oshkosh on the night of January 10, 2006.
    On cross-examination, Johnson stated:
       Q. So you knew that you were going to be able to
          say I’m going to look at the defense table and
          I’m going to point to the African American and
          that’s going to be the guy; isn’t that correct?
       A. Basically, yeah.
    Lee argues that this statement proves that Johnson identi-
fied Lee solely on the basis of his race. He alleges that this fact,
coupled with Johnson’s inability to identify Lee in the photo
array and the favorable testimony received from detectives at
his own trial, constitutes an impermissible identification
procedure.
    We have held that a “witness’s identification violates a
defendant’s right to due process when the identification
procedure is so impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable misidentification.”
United States v. Recendiz, 

, 524 (7th Cir. 2009)
(internal quotation marks omitted). Yet “the admission of
evidence rarely implicates due process,” as courts typically
rely on other means—such as the Sixth Amendment rights to
counsel and confrontation—to safeguard the reliability of
No. 13-1314                                                    5

evidence. United States v. Sanders, 

, 983 (7th Cir.
2013). Due process will only prohibit evidence when it “is so
extremely unfair that its admission violates fundamental
conceptions of justice.” Perry v. New Hampshire, 

,
723 (2012) (quoting Dowling v. United States, 

, 352
(1990)). In determining whether an identification procedure
reaches this substantial threshold, we engage in a two-pronged
analysis. First, we determine whether the identification
procedure was suggestive and unnecessary. 

–85. Second, we determine under the totality of the
circumstances whether the procedure was nonetheless reliable.

that Johnson was aware that Lee would be
the African-American at the defense table is neither suggestive
nor unnecessary. We have noted that “a defendant’s mere
presence at the defense table is not enough to establish a
violation of due process.” 

; see also
United States v. Bush, 

, 1232 (7th Cir. 1984). There
is nothing in the record to establish that Johnson’s identifica-
tion was made solely on the basis of Lee’s race or that Johnson
was instructed to point to the African-American man at the
defense table. Rather, Johnson was simply testifying to his
knowledge of the situation at hand: he had seen Lee, an
African-American, on several occasions and was aware that he
was testifying at Lee’s trial. While the question itself may seem
fairly suspect, it does not itself establish any wrongdoing that
might implicate due process. Similarly, Johnson repeatedly
admitted that he was unable to pick out Lee’s picture in the
photo array, but could identify Lee if he saw him in person.
The fact that Johnson was not able to select Lee’s photo may
6                                                     No. 13-1314

tend to discredit Johnson’s testimony, but this is not our
concern, for examining the accuracy of the identification falls
within “the exclusive province of the jury.” 

. Johnson’s testimony took place in front of the jury,
“which observed and presumably weighed any arguably
suggestive circumstances.” 

see also Johnson v.
McCaughtry, 

, 597 (7th Cir. 1996) (though an in-court
identification may not be “especially convincing,” that does not
render it inadmissible; the ultimate accuracy of the identifica-
tion is to be determined by the jury as the trier of fact). Our role
is only to determine whether an identification is “so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.” Simmons v. United
States, 

, 384 (1968). Neither the in-court identifica-
tion nor the photo array meet this threshold.
    Even if we found Johnson’s identification procedure to be
unnecessarily suggestive, however, it was nonetheless reliable
under the circumstances. The Supreme Court set forth several
factors for courts to use to determine whether an unduly
suggestive identification procedure was still to be considered
reliable under the circumstances: (1) the opportunity of the
witness to observe the criminal at the time of the crime (or
prior to the identification); (2) the witness’s degree of attention;
(3) the accuracy of the witness’s prior description of the
criminal; (4) the level of certainty demonstrated by the witness
at the time of the identification; and (5) the length of time
between the crime and the identification. Neil v. Biggers, 

, 199–200 (1972).
   Applying the factors to Johnson’s testimony, we find it was
sufficiently reliable to be admitted at trial. First, Johnson
No. 13-1314                                                    7

testified that he was in the car with Victor Thomas and Lee
after the shooting and drove the two men around before
dropping Lee off on a Milwaukee street corner. He also stated
that at one point, he and Lee were alone in the vehicle and had
a brief discussion. Second, Johnson did admit that he was not
paying particular attention to Lee or the backseat where Lee
was located. As to the third factor, Johnson did not provide a
prior description of Lee, but did testify that he had seen Lee
driving around on several occasions. And while he could not
pick him out in the photo lineup, he repeatedly stated that he
would be able to identify Lee if he saw him in person. Fourth,
Johnson confirmed that he was “sure” that the man who was
in the car with him and Victor Thomas the night of the shoot-
ing was in fact Keith Lee. Finally, over nine months had passed
between the shooting and the in-court identification.
    Considering all of the factors, we do not find this testimony
to be unreliable. Although Johnson’s lack of attention to Lee on
the night of the shooting and the extended duration of time
between their initial encounter and the identification raise
some concern, the testimony was nonetheless constitutionally
reliable when considered with the other Biggers factors.
Certainly Johnson’s testimony was not received without some
flaws, as is most evidence that is properly examined, but these
are issues for the jury to decide in weighing any questionable
discrepancies. Manson v. Brathwaite, 

, 116 (1977)
(“[E]vidence with some element of untrustworthiness is
customary grist for the jury mill. Juries are not so susceptible
that they cannot measure intelligently the weight of identifica-
tion testimony that has some questionable feature.”) Accord-
ingly, we find no error.
8                                                             No. 13-1314

    B. Ineffective Assistance of Counsel
    Lee also contends that he is entitled to an evidentiary
hearing on his claim of ineffective assistance of counsel. Lee’s
counsel appealed his conviction, which was affirmed by the
Wisconsin courts, but did not raise a claim of ineffective
assistance of trial counsel.1 Thereafter, Lee filed his postconvi-
ction motion for ineffective assistance of both trial and appel-
late counsel. Lee argued that his trial counsel’s investigation
into his alibi was deficient and that his attorney failed to
explain why he could not present both the alibi and credibility
arguments at trial. He also asserts that his appellate counsel
was ineffective in failing to raise the effectiveness claim in his
direct appeal and should have discerned such an obvious claim
from the record.
    The Wisconsin Court of Appeals denied Lee’s motion for
postconviction relief. It found that the allegations regarding his
postconviction counsel’s performance were conclusory and
legally insufficient under the rule set forth in State v. Allen, 

(Wis. 2004). The court also held that Lee’s motion
was barred by the Supreme Court of Wisconsin’s ruling in State
v. Escalona-Naranjo, which holds that all issues not raised in a
previous postconviction motion or appeal are foreclosed from
being brought up in a subsequent postconviction motion
unless the petitioner can demonstrate “sufficient reason” for
the delay. 

, 162 (Wis. 1994).


1
  Lee’s appellate counsel challenged the (1) in-court identification of Lee by
Christopher Johnson and (2) whether Johnson’s testimony about a
conversation that occurred between Thomas and Lee constituted inadmissi-
ble hearsay.
No. 13-1314                                                     9

    The district court affirmed the decision, finding that, while
the motion was not barred on Escalona-Naranjo grounds, it was
nonetheless procedurally defaulted because he did not allege
sufficient facts to entitle him to relief.
    A claim will be procedurally defaulted—and barred from
federal review—if the last state court that rendered judgment
“‘clearly and expressly’ states that its judgment rests on a state
procedural bar.” Harris v. Reed, 

, 263 (1989)
(quoting Caldwell v. Mississippi, 

, 327 (1985)).
Accordingly, we will not entertain questions of federal law in
a habeas petition when the state procedural ground relied
upon in the state court “is independent of the federal question
and adequate to support the judgment.” Coleman v. Thompson,

, 729 (1991). An independent state ground will be
found “when the court actually relied on the procedural bar as
an independent basis for its disposition of the case.” Thompkins
v. Pfister, 

, 986 (7th Cir. 2012) (citing Kaczmarek v.
Rednour, 

, 592 (7th Cir. 2010)). A state law ground
is adequate “when it is a firmly established and regularly
followed state practice at the time it is applied.” 

Court of Appeals relied on the Wisconsin
Supreme Court’s rule set forth in State v. Allen—which governs
when a petitioner asserts that he is entitled to an evidentiary
hearing—as its basis for denying Lee’s motion. The court
stated, “A WIS. STAT. § 974.06 motion must offer more than
conclusory allegations to be legally sufficient. See Allen, 

, ¶12. We agree with the circuit court that Lee’s
allegations of postconviction counsel’s ineffectiveness were
conclusory … . The motion was not sufficient under Allen.”
10                                                    No. 13-1314

This rule clearly served as an independent basis for the court’s
denial of Lee’s motion.
     Lee argues that the application of Allen by the Wisconsin
Court of Appeals cannot be found to be an adequate ground
for denying relief. The rule requires a petitioner to provide
sufficient material facts, “e.g., who, what, where, when, why,
and how-that, if true, would entitle him to the relief he seeks.”

. Lee contends that the level of
specificity in his postconviction motion—as an incarcerated
defendant who was purportedly represented by ineffective
counsel at both the trial and appellate levels—should be
sufficient to withstand review under the Allen rule. Yet our
review of the adequacy of a state ground is limited to whether
it is a firmly established and regularly followed state practice
at the time it is applied, not whether the review by the state
court was proper on the merits. And the Allen rule is a well-
rooted procedural requirement in Wisconsin and is therefore
adequate. See, e.g., State v. Negrete, 

, 755 (Wis.
2012); State v. Balliette, 

, 339 (Wis. 2011); State v.
Love, 

, 68–69 (Wis. 2005); State v. McDougle, 

, 247–48 (Wis. Ct. App. 2013). Consequently, we
find the state procedural requirement relied upon by the
Wisconsin Court of Appeals both independent and adequate.
Lee’s ineffective assistance claim is procedurally defaulted.
    We can excuse a procedural default if a petitioner is able to
show both cause and prejudice or that failure to review the
claim will result in a fundamental miscarriage of justice.

. Lee, however, does not make an
argument for either and we will not make it for him here. See
Franklin v. Gilmore, 

, 884–85 (7th Cir. 1999).
No. 13-1314                                                      11

   C. Hearsay
    Lee also contends that Johnson’s testimony about a conver-
sation between Thomas and Lee violated his rights under the
Confrontation Clause of the Sixth Amendment. The prosecutor
asked Johnson about a conversation that occurred while
driving to the gas station:
       Q: After you spoke with Victor Thomas, did you
          get back in the car and speak again with Keith
          Lee?
       A: No, I didn’t speak to anybody when I got back
          in the car. Victor Thomas was speaking.
       Q: Do you remember Victor ever telling Keith to say
          what happened?
       A: He sort of asked him to confirm it.
       Q: Did Keith Lee say anything to you about what
          happened in Oshkosh?
       A: Not exactly. He just mumbled yeah, yeah, like
          that.
    (emphasis added). Lee argues that the italicized statement
is “non-testimonial hearsay that lacks the indicia of reliability”
and was admitted in violation of his rights under the Sixth
Amendment. The Sixth Amendment ensures that an accused
maintains “the right … to be confronted with witnesses against
him.” U.S. Const. amend. VI. But this right under the Confron-
tation Clause is limited to evidence that is “testimonial.” Davis
v. Washington, 

, 821 (2006); United States v. Ellis, 

, 923 (7th Cir. 2006) (“Hearsay evidence that is
12                                                 No. 13-1314

nontestimonial ‘is not subject to the Confrontation Clause.’”
(citing 

)). Thus, because the testimony by
Thomas was nontestimonial (as Lee concedes in his brief), the
Confrontation Clause does not apply and Lee’s Sixth Amend-
ment claim must fail.
                        III. CONCLUSION
    For the foregoing reasons, we AFFIRM the decision of the
district court.
No. 13-1314                                                     13

    HAMILTON, Circuit Judge, concurring in part and concurring
in the judgment.
    I join all portions of Judge Kanne’s opinion for the court
except Part II-A, dealing with Christopher Johnson’s in-court
identification of petitioner Lee as the person in his car on the
night of the murder and robbery. Johnson admitted on cross-
examination that he knew he would be asked to identify the
man who was in his car that night, and that he expected to look
at the defense table and point to the only African-American at
that table.
    As Judge Kanne points out, “a defendant’s mere presence at
the defense table is not enough to establish a violation of due
process.” Slip op. at 5 (emphasis added). Nevertheless, we
have often recognized the inherent suggestiveness of in-court
identifications where the defendant is seated at the defense
table. See, e.g., Johnson v. McCaughtry, 

, 597 (7th Cir.
1996) (“much less reliable than fair line-ups and photo ar-
rays”); Rodriguez v. Peters, 

, 556 (7th Cir. 1995) (in-
court procedure was suggestive, but no due process violation
if defendant’s location is only suggestive circumstance); United
States ex rel. Haywood v. O’Leary, 

, 59 (7th Cir. 1987)
(totality of circumstances kept in-court identification from
being unreliable or violating due process); United States v. Bush,

, 1232 (7th Cir. 1984) (recognizing suggestiveness
but finding no due process violation where defendant’s
location was only suggestive circumstance). Our colleagues in
the Second Circuit have addressed the problem in greater
depth. See, e.g., United States v. Archibald, 

, 941–42
(2d Cir. 1984) (in-court identification of defendant, the only
black person in the courtroom, seated at the defense table, was
14                                                    No. 13-1314

improperly suggestive, but error was harmless); United States v.
Brown, 

, 593–94 (2d Cir. 1983) (describing appropri-
ate protective measures for in-court identification where
witness has not made prior identification).
    Johnson’s troubling admission that he planned to point out
the only African-American at the defense table suggests there
was no independent basis for his identification. The fact that he
was not able to identify Lee from photographs before trial
strengthens that suggestion. The combination of (a) the
inherent suggestiveness of an in-court identification of the
defendant at the defense table, (b) Johnson’s inability to make
an earlier identification, and (c) his remarkable admission that
he planned to identify the African-American at the defense
table raises a substantial question about whether the identifica-
tion was sufficiently reliable to be admitted, even though its
flaws were fully aired before the jury. See generally Neil v.
Biggers, 

, 199–200 (1972).
    Our cases have yet to address whether and when a wit-
ness’s open admission that he identified the defendant based
on his race and location in the courtroom would indicate “a
very substantial likelihood of irreparable misidentification”
that might violate due process. 

, quoting

. In light of the circuit court cases cited
above, among others, I do not know how I would decide that
question if this were a direct appeal from a federal criminal
trial. But that is not the question we must decide.
    The question before us is limited by the highly deferential
standard of review we apply to the state court’s decision under
the Antiterrorism and Effective Death Penalty Act of 1996. The
No. 13-1314                                                     15

issue is not whether the admission of Johnson’s identification
violated the United States Constitution. The issue is only
whether the state court’s decision was “contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). An unreasonable application of federal law
is different from a merely incorrect application of law, see
Harrington v. Richter, 

, 785 (2011), citing Williams
v. Taylor, 

, 410 (2000), for § 2254(d)(1) gives state
courts considerable latitude in applying federal law as deter-
mined by the Supreme Court.
    In the district court, Chief Judge Griesbach explained
persuasively why the state court’s decision here would not
justify relief under § 2254(d)(1). See Lee v. Baenen, No. 10-C-040,

, at *3 (E.D. Wis. Jan. 30, 2013). Petitioner Lee
has not rebutted that analysis with Supreme Court authority.
To the extent that Part II-A of my colleagues’ opinion seems to
apply a less deferential standard, one closer to a direct appeal
from a federal conviction, it says more than is necessary. On
the basis of the district court’s analysis, though, I agree with
my colleagues that we must affirm the denial of habeas corpus
relief based on the in-court identification by Johnson.