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

No. 04-1043
ALPHONSO HUBANKS,
                                          Petitioner-Appellant,
                               v.

MATTHEW J. FRANK, Secretary,
                                         Respondent-Appellee.
                        ____________
           Appeal from the United States District Court
               for the Eastern District of Wisconsin.
          No. 99 C 457—Charles N. Clevert, Jr., Judge.
                        ____________
  ARGUED SEPTEMBER 13, 2004—DECIDED DECEMBER 22, 2004
                        ____________



  Before BAUER, RIPPLE, and EVANS, Circuit Judges.
  BAUER, Circuit Judge. Petitioner-Appellant Alphonso
Hubanks brought this habeas corpus claim under 28 U.S.C.
§ 2254, challenging his Wisconsin state conviction for four
counts of first-degree sexual assault, one count of armed
robbery, and one count of abduction. The district court
denied the petition and discovery. Hubanks appeals, and we
affirm.


                      I. Background
  On the evening of August 24, 1989, two men abducted a
15-year-old girl while she awaited her parents in their car
idling outside of a store. As the abductors drove off with the
2                                                No. 04-1043

victim in her parent’s car, one of the men put a baseball cap
over her face. The victim testified that the men took her
jewelry and, upon threat of death, demanded she remove
her clothing. Both men then forced her to engage in acts of
sexual conduct. During the assault, one of the men asked,
“Do you want to feel good or die?” and threatened, “Don’t let
me have to kill you.” Although the victim could not clearly
see her assailants, through a hole in the back of the cap she
observed one of them holding what she thought to be a gun.
After the assault, the men released the victim and drove off
with her jewelry.
  The incident was reported, and within hours police had
the stolen car under surveillance. Soon thereafter, the
defendant, Alphonso Hubanks, and a companion emerged
from a bar and approached the stolen vehicle. The engine
would not start, so the two men got out and opened the car’s
hood. As the police approached, Hubanks tossed several
objects under a nearby car. The items included the victim’s
jewelry, coins, the keys to the stolen car, and a glass
smoking pipe, which the victim later identified as the object
she thought was a gun.
  The following morning, Hubanks appeared in a police
lineup, in which he spoke the words used by the assailant.
Although the victim could only describe her assailants as
two black men, she positively identified Hubanks by his
deep, “frog-like” voice.
  At trial, the state moved for an in-court voice identifica-
tion of Hubanks, requesting that he repeat the same words
he had spoken at the police lineup. Hubanks objected on the
grounds that it violated his privilege against self-incrimina-
tion and was prejudicial. As an alternative, Hubanks
proposed that the court conduct another lineup at trial,
rather than require Hubanks alone to speak. The court de-
nied the proposal and ordered Hubanks to provide the voice
No. 04-1043                                                  3

sample. Hubanks refused. As part of the closing instruc-
tions to the jury, the court included the following:
    Now, a Defendant in a criminal case has the absolute
    Constitutional right not to testify. The Defendant’s de-
    cision not to testify must not be considered by you in
    any way and must not influence you in your verdict;
    however, the Defendant was requested to give a voice
    sample by stating the words that the . . . [victim] tes-
    tified were said on the night in question for purposes of
    testing her capacity to identify the voice as the same
    one she heard that night. The Defendant has declined
    to give that voice sample by stating those words and you
    may, therefore, give that declination the weight you
    think it deserves in considering the guilt or innocence
    of the Defendant.
The jury found Hubanks guilty.
  Following trial, the district attorney took possession of the
trial exhibits—which included the victim’s semen-stained
underwear—and turned them over to the Milwaukee Police
Department for storage. Fifteen months later, while the
case was on appeal, the police destroyed the exhibits. Soon
thereafter, the Wisconsin Court of Appeals affirmed the
conviction. Hubanks’ postconviction motions and petition for
writ of habeas corpus were denied on state collateral
appeal, as were his petition for habeas relief under 28
U.S.C. § 2254 and motion for discovery before the district
court.
  The following issues have been certified for appeal to this
court: (1) whether Hubanks’ due process rights were vio-
lated by the destruction of evidence; (2) whether Hubanks’
right to remain silent was violated by the order to provide
an in-court voice sample; (3) whether Hubanks’ right to
remain silent was violated by the court’s jury instructions;
and (4) whether Hubanks was denied effective assistance of
counsel at trial or on appeal.
4                                                No. 04-1043

                      II. Discussion
  The Antiterrorism and Effective Death Penalty Act of
1996 controls this habeas case. This statute provides that
habeas relief shall not be granted unless the adjudication of
the claim:
    (1) resulted in a decision that was contrary to, or in-
    volved an unreasonable application of, clearly estab-
    lished Federal law, as determined by the Supreme
    Court of the United States; or
    (2) resulted in a decision that was based on an unrea-
    sonable determination of the facts in light of the evi-
    dence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1) and (2). Hubanks argues both that
the Wisconsin Court of Appeals made unreasonable appli-
cations of federal law and that the state court’s decision was
based upon unreasonable determinations of the facts. We
therefore discuss both parts of the statute.
  Habeas relief is appropriate pursuant to § 2254(d)(1) if
the state court identified the right legal principle as deter-
mined by the Supreme Court but unreasonably applied that
principle to the facts of the case. The standard for proving
an unreasonable application of federal law, however, is
more demanding than for proving an erroneous application
of that law. Schaff v. Snyder, 190 F.3d 513, 523 (7th Cir.
1999). We review legal questions and mixed questions of
law and fact de novo, but uphold decisions that are either
“minimally consistent with the facts and circumstances of
the case” or “one of several equally plausible outcomes.” Id.
at 522-23. A state court’s findings of fact are presumed
correct. Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir.
1999). The reasonableness of these findings can be over-
come only by clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1).
No. 04-1043                                                 5

A. Due Process
  Hubanks argues that his due process rights were violated
when the Milwaukee Police Department, having accepted
possession of the trial exhibits from the Milwaukee District
Attorney’s Office, destroyed the exhibits while his appeal
was pending. According to Hubanks, destruction of the
exhibits prevented him from performing DNA analysis on
what he claims was potentially exculpatory evidence,
thereby denying him a meaningful opportunity to present
a complete defense.


               1. Determinations of Fact
  Hubanks challenges the reasonableness of the Wisconsin
Court of Appeals’ findings of fact. The appeals court found
that the exhibits were not destroyed in bad faith, but rather
were disposed of pursuant to a policy of the police depart-
ment. The appeals court found further support for lack of
bad faith in both the timing of the evidence’s destruction
and the fact that no tests were pending when the exhibits
were destroyed. In addition, the court of appeals found that
the destroyed evidence lacked true exculpatory value
because it could not have eliminated Hubanks as one of the
two assailants.
  Hubanks first argues that it was unreasonable for the
court of appeals to find that the exhibits were destroyed
pursuant to departmental policy when the policy was un-
written, the police gave somewhat inconsistent explanations
for why the exhibits were destroyed, and the exhibits at one
point bore notations that they were to be preserved. The
record, however, supports the court of appeals’ finding. It
contains evidence that the exhibits bore a notation by police,
albeit an incorrect one, that Hubanks had pleaded guilty and
that therefore the exhibits could be destroyed in one year,
pursuant to departmental policy. The exhibits were de-
stroyed 15 months later. Hubanks fails to rebut the pre-
6                                                No. 04-1043

sumptive reasonableness of these findings. That the police
department’s policy for retention of exhibits was unwritten
is not proof that the policy did not exist or that the practice
was not routinely observed. Similarly, the inconsistencies
to which Hubanks refers may be indicative of confusion
within the department, but they are far from clear and
convincing evidence of bad faith. Finally, while evidence
that the exhibits bore two contradictory notations— one to
preserve the exhibits pending a “possible” appeal, and the
other erroneously referencing a guilty plea—may reflect
careless police work, it is not clear and convincing proof
that the police acted in bad faith. See Montgomery v. Greer,
956 F.2d 677, 681 (7th Cir. 1992) (holding, “mere negli-
gence, without more, does not amount to a constitutional
violation”).
  Hubanks also argues that it was unreasonable for the
court of appeals to find that the police department had a
policy that violated state law. Hubanks refers here to a
Wisconsin statute, which provides:
    The retention and disposal of all court records and ex-
    hibits in any civil or criminal action or proceeding of
    any nature in a court of record shall be determined by
    the supreme court by rule.
WIS. STAT. § 757.54 (1987-88). The Wisconsin Supreme
Court Rule (“SCR”) stated:
    SCR 72.01 Retention of original record. Except as
    provided in SCR 72.03 to 72.05, the original paper rec-
    ords of any court shall be retained in the custody of the
    court for the following minimum periods:
        (46) Criminal case exhibits, paper and non-
        paper. One year after the time for appeal has ex-
        pired, provided that return of the exhibit has been
        offered to the proffering party.
SCR 72.01(46). It appears that the substance of the police
department’s policy for retention of trial exhibits is con-
No. 04-1043                                                7

sistent with state law, with the possible exception of the
proviso to SCR 72.01(46). Both require preservation of
exhibits for one year after the time for appeal has elapsed.
That being the case, and there being evidence in the record
that the police believed Hubanks had pleaded guilty, the
mere existence of the state law is not clear and convincing
proof that the police acted in bad faith.
  Second, Hubanks argues that it was unreasonable for the
court of appeals to find that the passage of time and lack of
a pending test request indicated an absence of bad faith,
because the police should have been aware of the long-range
exculpatory potential of DNA testing. The record indicates
that the exhibits were destroyed 15 months after Hubanks’
trial. During that 15-month period, no requests were made
to conduct further tests on the evidence. It was reasonable
for the appeals court to interpret these factors as evidence
that the exhibits were not destroyed in bad faith, but rather
pursuant to departmental policy.
  Third, Hubanks argues that the court of appeals unrea-
sonably found that the exhibits lacked exculpatory value. To
support this contention, Hubanks proposes a hypothetical
scenario in which DNA testing of the lost evidence incul-
pates not one but two assailants, neither of whom are
Hubanks. This speculation does not rebut the appeals
court’s finding.


              2. Application of Youngblood
  Hubanks also argues that while the Wisconsin Court of
Appeals identified the correct Supreme Court precedent,
Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102
L.Ed.2d 281 (1988), the court unreasonably applied
Youngblood to the facts of his case. Youngblood is relevant
when the government has failed to preserve evidence, but
no more can be said of that evidence than that “it could have
been subjected to tests, the results of which might have
8                                               No. 04-1043

exonerated the defendant.” Youngblood, 488 U.S. at 57-58
(emphasis added). In such situations, failure to preserve
evidence is not a violation of due process rights unless the
defendant can demonstrate: (1) bad faith on the part of the
government; (2) that the exculpatory value of the evidence
was apparent before it was destroyed; and (3) that the evi-
dence was of such a nature that the petitioner would be
unable to obtain comparable evidence by other reasonably
available means. Id.; California v. Trombetta, 467 U.S. 479,
488-89, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); United
States v. Watts, 29 F.3d 287, 289-90 (7th Cir. 1994).
  Hubanks argues that the court of appeals misinterpreted
the “apparent exculpatory value” language of the Supreme
Court’s decision in Youngblood. The Court, however, spe-
cifically stated, “The possibility that the semen could have
exculpated respondent if preserved or tested is not enough
to satisfy the standard of constitutional materiality in
Trombetta.” Youngblood, 488 U.S. at 56 n.* (emphasis added).
Evidence lacks apparent exculpatory value when, as here,
analysis of that evidence would have offered “simply an
avenue of investigation that might have led in any number
of directions.” Id. at 57 n.*. A favorable DNA test would not
have exonerated Hubanks, there having been two assail-
ants, one of whom was never apprehended. As a result, the
evidence had no apparent exculpatory value, and the court
of appeals’ application of Youngblood was reasonable.


B. Self-Incrimination
  The district court certified two issues in connection with
Hubanks’ refusal to provide a voice sample. The first is
whether Hubanks’ right to remain silent was violated by
the trial court’s order to provide the sample. The second is
whether the trial court’s jury instructions constituted an
impermissible penalty on Hubanks’ right to remain silent.
We analyze both of these issues under 28 U.S.C. § 2254(d)(1)
to determine whether the Wisconsin Court of Appeals made
No. 04-1043                                                   9

an unreasonable application of clearly established federal
law when it applied the principles from United States v.
Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967),
and Pennsylvania v. Muniz, 496 U.S. 582, 110 S.Ct. 2638,
110 L.Ed.2d 528 (1990), to these facts.
  The Self-Incrimination Clause of the Fifth Amendment
provides that “[n]o person . . . shall be compelled in any
criminal case to be a witness against himself.” The Supreme
Court has since delineated the scope of this protection as it
pertains to voice samples ordered in pre-trial situations. In
Wade, the Court observed that “the privilege [against self-
incrimination] ‘protects an accused only from being com-
pelled to testify against himself, or otherwise provide the
State with evidence of a testimonial or communicative
nature’.” Wade, 388 U.S. at 221 (quoting Schmerber v. State
of California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d
908 (1966)). Therefore, the Court held, compelling a defen-
dant “to utter words purportedly uttered by [an assailant],
was not compulsion to utter statements of a ‘testimonial’
nature; he was required to use his voice as an identifying
characteristic, not to speak his guilt.” Id. at 222-23. See also
United States v. Dionisio, 410 U.S. 1, 7, 93 S.Ct. 764, 35
L.Ed.2d 67 (1973) (holding suspects before a grand jury
could be ordered to provide voice samples, as they were
used “solely to measure the physical properties of the
witnesses’ voices, not for the testimonial or communicative
content of what was said”). Similarly, in Muniz, a drunk
driving suspect was ordered upon arrest to provide a voice
sample, which was videotaped and later shown at trial. The
Court found the order constitutional. “Requiring a suspect
to reveal the physical manner in which he articulates words,
like requiring him to reveal the physical properties of the
sound produced by his voice . . . does not, without more,
compel him to provide a ‘testimonial’ response for purposes
of privilege.” Muniz, 496 U.S. at 592.
10                                                No. 04-1043

  Hubanks argues that it was unreasonable for the court of
appeals to apply the Supreme Court’s principle regarding
pre-trial voice samples to these facts in light of the views of
several Justices in Wade who, dissenting in part and
concurring in part, argued the holding should not extend to
the trial context. The phrase, “clearly established Federal
law, as determined by the Supreme Court of the United
States,” however, refers to the holdings, not the dicta of the
Court’s decisions. Williams v. Taylor, 529 U.S. 362, 412, 120
S.Ct. 1495, 146 L.Ed.2d. 389 (2000). See also Hogan v.
Hanks, 97 F.3d 189, 192 (7th Cir. 1996) (holding a rule is
“clearly established” only if it is compelled by existing
Supreme Court precedent). Consequently, the dissenting
and concurring opinions in Wade do not constitute clearly
established law for purposes of § 2254(d)(1) analysis.
  Although the holdings in Wade and Muniz did not compel
the court of appeals’ decision, the conclusions the court
drew based upon the rationales underlying those decisions
were reasonable. Like the defendants in Wade and Muniz,
Hubanks was ordered to make a statement so that the
physical properties of his voice could be assessed. Therefore,
his speech would not have been protected because it would
not have been testimonial. Furthermore, it should be noted
that in Muniz the videotape of the pre-trial voice sample
was later admitted into evidence and shown at trial. As a
result, we believe the court of appeals was reasonable in
applying Wade and Muniz to determine that the trial
court’s order did not violate Hubanks’ right to remain
silent.1




1
  Of course, all interests would have been better served had the
issue been resolved pre-trial, as this would have allowed for a
taped voice identification without risk of prejudicing Hubanks.
No. 04-1043                                                 11

  Since the court-ordered voice sample would have consti-
tuted non-testimonial, and thus unprotected, speech, the
court was free to instruct the jury that it could give Hubanks’
declination to provide the sample the weight it deserves.
The appeals court acknowledged Griffin v. United States,
380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which
forbids comment on the accused’s silence or instructions
by the court that silence is evidence of guilt, but was rea-
sonable in distinguishing Griffin from situations involving
non-testimonial speech. Consequently, the jury instructions
here were accurate and did not violate Hubanks’ Fifth
Amendment rights. Moreover, the trial court had no duty to
include in its jury instructions Hubanks’ proposal for an in-
court lineup, so its refusal to do so was not unreasonable.

  As a final matter, Hubanks argues that we should take
into account that, at the time he was ordered to give a voice
sample, some of the words he was ordered to recite had not
yet been admitted into evidence. We agree with the court of
appeals that Hubanks has procedurally defaulted this claim
by not raising it at trial. Therefore, we decline to address it.


C. Ineffective Assistance of Counsel
  The district court certified, in connection with the Wade
issues above, the issue of whether Hubanks received inef-
fective assistance of counsel because his trial counsel did
not object to the jury instructions and because his appellate
counsel did not raise the issue of trial counsel’s failure to
object to the content of the voice sample. To prove an
ineffective assistance of counsel claim, a petitioner must
establish both that his counsel’s representation fell below
an objective standard of reasonableness and that he was
prejudiced as a result. Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 90 L.Ed.2d. 674 (1984). Because
12                                               No. 04-1043

the court-ordered voice sample was not testimonial in na-
ture, trial counsel had no obligation to object to the court’s
jury instructions. Further, the content of the transcript
Hubanks was ordered to recite is irrelevant; the voice
sample was still non-testimonial. Consequently, both trial
and appellate counsel provided Hubanks with adequate
representation.


D. Request to Conduct Discovery
  As an alternative to a grant of habeas relief, Hubanks
requests leave to conduct discovery pursuant to his claim
that the police destroyed the trial exhibits in bad faith. Rule
6(a) of the Rules Governing § 2254 Cases provides that a
petitioner can invoke discovery, but only “if and to the
extent that, the judge in the exercise of his discretion and
for good cause shown grants leave to do so, but not other-
wise.” See Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct.
1793, 138 L.Ed.2d 97 (1997). In order to satisfy the two
requirements of the Rule 6(a) test, Hubanks must: (1) make
a colorable claim showing that the underlying facts, if
proven, constitute a constitutional violation; and (2) show
“good cause” for the discovery. Henderson v. Walls, 296 F.3d
541, 553 (7th Cir. 2002), vacated on other grounds, 537 U.S.
1230, 123 S.Ct. 1354, 155 L.Ed.2d 194 (2003); see also
Harris v. Nelson, 394 U.S. 286, 298-300, 89 S.Ct. 1082, 22
L.Ed.2d 281 (1969). Good cause, however, cannot exist
where the facts alleged do not provide a basis for relief.
Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir.
1990).
  The district court did not abuse its discretion in denying
Hubanks’ motion. In Bracy, the petitioner sought leave to
conduct discovery in order to prove his claim that corrup-
tion on the bench had deprived him of his right to a fair
trial. The petitioner demonstrated good cause by submitting
No. 04-1043                                                 13

the trial judge’s indictment for fixing cases, proof of his own
attorney’s admitted complicity in the scheme, and evidence
that cases directly before and after his had been fixed.
Bracy, 520 U.S. at 906-07. The evidence Hubanks offers is
slight by comparison, for all of the reasons discussed in our
analysis of his Youngblood claim. Moreover, the overall
evidence against Hubanks was voluminous. Hubanks was
found only hours after the assault, attempting to start the
car that was stolen from the victim’s parents. When the
police approached, he tried to discard the car keys and the
jewelry he was carrying, which belonged to the victim.
Furthermore, the victim positively identified Hubanks’ voice
in a police lineup the morning after the attack, and enzyme
analysis of the victim’s underwear could not rule out Hubanks
as an assailant. In this context, the district court exercised
appropriate discretion in denying further discovery.


                      III. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
decision that Hubanks is not entitled to federal habeas
relief or leave to conduct discovery.
14                                        No. 04-1043

A true Copy:
      Teste:

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




               USCA-02-C-0072—12-22-04
