                               In the
    United States Court of Appeals
                 For the Seventh Circuit
                            ____________

No. 07-1148
DONALD CALLOWAY,
                                              Petitioner-Appellant,
                                   v.

JESSE MONTGOMERY,
                                              Respondent-Appellee.
                            ____________
              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
               No. 06 C 3241—Elaine E. Bucklo, Judge.
                            ____________
    ARGUED SEPTEMBER 28, 2007—DECIDED JANUARY 14, 2008
                      ____________


    Before ROVNER, WOOD, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. If a 42-year-old man wants
to change his identity and fly through the remainder of
his life under the radar screen with a fake name, what
kind of name would he be likely to select? Certainly he
would want a common name, like Walker, Washington,
White, or Williams,1 to name just a few that begin with the
same letter. But Donald Calloway, the appellant in this


1
  How popular are these four names? Well, the National Football
League alone has 11 players named either White or Walker on
current team rosters. A dozen players are named Washington.
And there are 39 players with “Williams” on the back of their
jerseys each weekend. See NFL.com.
2                                                 No. 07-1148

federal habeas case, did not follow the conventional
wisdom: his newly adopted name (in 1979) was Robert
Ducks.2 Twenty two years later, after “Robert Ducks” was
indicted in federal court, “Donald Calloway” came back
from the past. And it was quite a past.
   In March of 1979, Calloway left a bar with his ex-wife,
Margie Murray. The next day Murray’s dead body was
found behind an abandoned house in Harvey, Illinois. The
bullet fragments investigators found in her skull came
from a .32 caliber handgun later found in her home. A
little later, her van turned up in Houston, Texas. Calloway
disappeared into thin air, and an arrest warrant was
issued for him in April of 1979.
  In 2001,3 “Robert Ducks” was indicted in federal court
in Chicago on mail fraud charges. While the case was
pending, but apparently after “Ducks” appeared in court
a few times, a fingerprint check indicated that he was not
who he claimed to be. In fact, he was Donald Calloway.
After the Harvey, Illinois, police were notified, Calloway



2
  At least Donald Calloway also changed his first name, as
“Donald Ducks” was apparently even too much for him. And, just
to go back to the last footnote, there are no players in the
NFL named either Duck or Ducks.
3
  It’s a bit unnerving to consider just how much time passed
between March of 1979, when Calloway disappeared, and
December of 2001, when “Robert Ducks” was unmasked. In
March of 1979, Jimmy Carter was the president, and the “Iran
Hostage Crisis,” which was to last 444 days, was still 8 months
away. That was followed by the 8-year administration of Presi-
dent Reagan, the 4-year term of President George Herbert
Walker Bush (#41), the 8-year presidency of Bill Clinton, the
election of George W. Bush (#43) as president, and September 11,
2001, a day that changed America. That’s a lot of time indeed.
No. 07-1148                                              3

was arrested and charged with the murder of Ms. Murray.
Originally, “Ducks” denied that he was Calloway. Later,
he admitted his true identity. He also gave two incon-
sistent statements to the police. But in both, he claimed
that Murray pulled a gun from her purse, that a strug-
gle followed, and that the gun discharged, hitting Murray.
At Calloway’s state murder trial, Dr. Shaku Teas testi-
fied as to the autopsy she performed on Murray’s body.
She found no stippling, i.e., “specks of gun powder em-
bedded in the skin,” which she said meant that the
shot was fired from at least one foot away. She also
testified that the angle of the gunshot was not consistent
with a struggle. On the other hand, Calloway’s expert
said that a wig Murray wore might have prevented
stippling and that the evidence was not inconsistent with
a struggle. The jury rejected the murder charge but
convicted Calloway on a lesser charge of voluntary man-
slaughter.
  In the federal case against him, which was resolved
before the state charge was tried, Calloway entered a
guilty plea to mail fraud. The mail fraud conviction played
a role in his sentencing in state court for manslaughter.
The state trial judge held that the federal mail fraud
conviction was equivalent to an Illinois conviction for
theft by deception, which made Calloway eligible for
an extended sentence. The maximum sentence for volun-
tary manslaughter, without the extension, was 7 years.
With it, the maximum increased to 14 years. He received
a sentence of 12 years.
  On his direct appeal from the voluntary manslaughter
conviction, Calloway argued, among other things, that
the trial court violated his due process rights by refusing
4                                                No. 07-1148

to instruct the jury on involuntary manslaughter4 and
violated his Sixth Amendments rights—as clarified by
Apprendi v. New Jersey, 530 U.S. 466 (2000)—by deter-
mining that his federal mail fraud conviction was equiva-
lent to an Illinois conviction for theft by deception. The
state appellate court rejected his claims and affirmed the
conviction and sentence. The Illinois Supreme Court
denied leave to appeal and the United States Supreme
Court denied certiorari.
  Calloway then filed the present petition for a writ of
habeas corpus. The district court denied the petition but
granted a certificate of appealability. In his appeal, he
again claims that the state jury should have been in-
structed on involuntary manslaughter and that his
rights under Apprendi were violated because the judge,
not the jury, made the findings underlying the extended
sentence.
   Under the Antiterrorism and Effective Death Penalty
Act of 1996, Calloway can obtain relief in federal court only
if the decision of the state court 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 “resulted in a decision that
was 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) and (2). A state court
decision is “contrary to” clearly established federal law
if the court “applies a rule that contradicts the governing
law set forth in [Supreme Court] cases” or if the court
“decides a case differently than [the Supreme Court] has
done on a set of materially indistinguishable facts.”


4
  The maximum sentence for involuntary manslaughter was
5 years, but 10 years if an extension were deemed to be appro-
priate.
No. 07-1148                                               5

Williams v. Taylor, 529 U.S. 362, 405 (2000); Bell v. Cone,
535 U.S. 685, 686 (2002). A decision of a state court
which correctly identifies a governing legal rule estab-
lished by the Court, but applies it unreasonably to the
facts of a particular case, qualifies as a decision involv-
ing an unreasonable application of clearly established
Federal law.
   At first glance, it might seem as if the meaning of
“clearly established law” should be self-evident and well-
established, but even a brief look at a few cases shows
it is not. For instance, last term the Court divided 5 to 4
in two Texas death penalty cases over the issue of what
exactly was clearly established as to jury consideration of
mitigating evidence. See Abdul-Kabir v. Quarterman, 127
S. Ct. 1654 (2007), and Brewer v. Quarterman, 127 S. Ct.
1706 (2007). The majority found that in both cases, the
law regarding the presentation of mitigating evidence
was clearly established. Chief Justice Roberts, dissenting
in both, did not see the Court’s prior precedents as clear
at all. He thought the Court gave itself “far too much
credit in claiming that our sharply divided, ebbing and
flowing decisions in this area gave rise to ‘clearly estab-
lished’ federal law.” Abdul-Kabir, at 1676; Brewer, at 1715.
  Relevant to the present case are discussions of how far
principles of clearly established law can be extended. In
determining whether a juvenile was in custody for
Miranda purposes, the court of appeals had relied on
the Supreme Court’s emphasis on the importance of
juvenile status in other contexts and concluded that youth
should be a factor in the Miranda analysis. Alvarado v.
Hickman, 316 F.3d 841 (9th Cir. 2002). Over three dis-
sents, the Court rejected that attempt to meld two lines
of cases into clearly established law. Yarborough v.
Alvarado, 541 U.S. 652 (2004). More recently, Carey v.
Musladin, 127 S. Ct. 649 (2006), involved a state court
6                                               No. 07-1148

decision which held that buttons displaying the victim’s
image, worn by the victim’s family during trial, did not
deny the defendant his right to a fair trial. The court of
appeals determined that the state court decision was
contrary to clearly established law set out in Estelle v.
Williams, 425 U.S. 560 (1976), and Holbrook v. Flynn, 475
U.S. 560 (1986). Musladin v. Lamarque, 427 F.3d 653
(2005). The Supreme Court disagreed. The issue in Wil-
liams involved requiring a defendant to wear prison
clothing at trial, and in Flynn, at issue was the presence of
four uniformed state troopers immediately behind
the defendant. These cases, the Court explained, did
not provide clearly established law for Musladin’s claim
because both involved “state-sponsored courtroom prac-
tices” and that, on the other hand, the “spectator conduct”
to which Musladin objected was “an open question in our
jurisprudence.” Justices Stevens, Kennedy, and Souter
wrote separate concurrences in which each found the
opinion’s view of clearly established law to be overly
restrictive.
  It is in this context that we consider whether there
is clearly established Supreme Court precedent for
Calloway’s claim that he was entitled to a jury instruc-
tion on the additional (recall, the jury already had one
lesser offense option on the table) crime of involuntary
manslaughter. We find there is not. It is true that in
Beck v. Alabama, 447 U.S. 625 (1980), the Court con-
cluded that the defendant was entitled to such an in-
struction. However, Beck was a capital case, and in a
footnote the Court said, “We need not and do not decide
whether the Due Process Clause would require the giving
of such instructions in a noncapital case.” At 638 n.14.
Throughout the decision it is clear that the risk of a
wrongful conviction for a capital crime informed the
result. The risk “cannot be tolerated in a case in which
the defendant’s life is at stake.” At 637. “[D]eath is a
No. 07-1148                                                     7

different kind of punishment . . . .” Id., quoting Gardner v.
Florida, 430 U.S. 349, 357 (1977).
  Even though, as Calloway points out, we have pre-
viously analyzed this issue by looking at whether the
omission of the instruction resulted in a fundamental
miscarriage of justice,5 we now find that the Beck foot-
note requires us to conclude that on this issue in a
noncapital case, there is no clearly established Supreme
Court precedent.
  Our conclusion is in accord with out recent decision in
Lockhart v. Chandler, 446 F.3d 721 (7th Cir. 2006), in
which we considered whether the state court violated
petitioner’s due process rights by failing to notify him
before he entered a guilty plea that a mandatory 3-year
term of supervised release would be added to his sen-
tence. We found that there was no Supreme Court prece-
dent on the issue and that, to the contrary, the Court had
“expressly declined to decide such an issue in the very
similar context of parole.” At 724. The Court has
also declined to consider lesser-included offenses in
noncapital cases, such as this one.
  Calloway’s second claim is that his Sixth Amendment
rights, as set out in Apprendi, were violated by the use of
the federal mail fraud conviction to impose an extended
sentence. In 1979, the time of the crime, Calloway’s
voluntary manslaughter conviction carried a maximum
sentence of 7 years. Ill. Rev. Stat. 1979, ch. 38, par. 9-2(c)
and par. 1005-8-1(a)(5). Under Illinois law, the sentence
could be extended if a “defendant is convicted of any
felony, after having been previously convicted in Illinois



5
  See Reeves v. Battles, 272 F.3d 918 (7th Cir. 2001); Armstead v.
Frank, 383 F.3d 630 (7th Cir. 2004); and Charlton v. Davis,
439 F.3d 369 (7th Cir. 2006).
8                                               No. 07-1148

of the same or greater class felony, within 10 years . . . .”
Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b). Voluntary
manslaughter was a Class 2 offense. His sentence could
be extended only for a prior conviction for a Class 2 or
Class 1 felony. Calloway’s sentence was extended from 7 to
12 years based on his conviction for federal mail fraud,
which the court found to be the equivalent of the Illinois
Class 1 felony—theft by deception.
   He argues that because federal felonies are not divided
into classes as are felonies under Illinois law, it was
improper to use the mail fraud conviction as a basis for
extending his sentence. Essentially, he says that under
Apprendi he was entitled to a jury determination as to
whether a federal mail fraud offense is the equivalent of an
offense under the Illinois theft by deception statute. The
Illinois Court of Appeals rejected his argument, and, on
this issue as well, we must determine whether the court’s
decision was an unreasonable application of Supreme
Court precedent.
  In Almendarez-Torres v. United States, 523 U.S. 224
(1998), the Court determined that 8 U.S.C. § 1326(b)(2),
which provides for the imposition of a higher sentence
on an unlawfully returning alien who has a prior convic-
tion, was a penalty provision. Because the provision did
not create a separate crime, the government was not
required to charge the fact of the earlier conviction in the
indictment. Then came Apprendi, which determined
that facts, other than the fact of a prior conviction,
which increase the penalty for a crime beyond the pre-
scribed statutory maximum must be submitted to a jury
and proved beyond a reasonable doubt. The recognition of
the exception for a prior conviction kept Almendarez-
Torres alive. In Shepard v. United States, 544 U.S. 13
(2005), the issue was what the trial judge could use to
determine whether a burglary charge was for generic
burglary—that is, burglary committed in an enclosed
No. 07-1148                                               9

space—and thus would be a violent felony for purposes of
the Armed Career Criminal Act, 18 U.S.C. § 924(e). The
Court concluded that the enquiry—made by the
judge—was limited to “the terms of the charging docu-
ment, the terms of a plea agreement or transcript of
colloquy between judge and defendant in which the fact-
ual basis for the plea was confirmed by the defendant,
or to some comparable judicial record of this information.”
At 26.
   The Illinois Appellate Court correctly stated and ap-
plied these principles in analyzing whether the mail
fraud conviction was the equal of a conviction under
Illinois law for theft by deception. The court looked to the
statute and the plea agreement. It then properly looked
to Illinois law to examine whether the facts would pro-
vide a basis for a charge of theft by deception. Because
Illinois law specifically provides that a federal conviction
that occurred in Illinois may be used to extend a sentence,
see People v. Harden, 113 Ill. 2d 14 (1986), the court
determined that there was no error in the use of the
mail fraud conviction to extend Calloway’s sentence. And
in making this determination, the court did not run
afoul of Apprendi. Almendarez-Torres still lives.
  For these reasons, the judgment of the district court
is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit


                   USCA-02-C-0072—1-14-08
