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

No. 02-2729
LEONARD HINTON,
                                              Petitioner-Appellant,
                                  v.


ALAN M. UCHTMAN,*
                                              Respondent-Appellee.

                           ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 00 C 1980—Elaine E. Bucklo, Judge.
                           ____________
      ARGUED MAY 15, 2003—DECIDED JANUARY 26, 2005
                      ____________




    Before BAUER, COFFEY, and WOOD, Circuit Judges.
  COFFEY, Circuit Judge. On September 13, 1985, Leonard
Hinton was convicted of murdering John Durham, Dorothy
McDaniel, and Edward Bradley and sentenced to life in
prison. The Illinois Appellate Court, on direct appeal, up-


*
   Alan M. Uchtman, the current warden of the Menard Correc-
tional Center where Hinton is presently confined, has been
substituted for Eugene McAdory as respondent pursuant to Fed.
R. App. P. 43(c).
2                                                  No. 02-2729

held Hinton’s conviction on three counts of murder. Hinton
responded with the filing of a pro se post-conviction petition
in the circuit court alleging a laundry list of constitutional
violations, which was denied and affirmed by the Appellate
Court of Illinois. Thereafter, Hinton filed a petition for a writ
of habeas corpus in federal court alleging that the police
obtained his signed confession through physical coercion,
abuse and police brutality and claimed that the admission
of his confession at trial was a violation of his Fifth Amend-
ment rights. The district court ruled that Hinton’s Fifth
Amendment claim did not warrant habeas relief; concluding
that any error arising from the admission of his confession
was harmless when one considers that the State produced
an overwhelming amount of evidence of his guilt separate
and distinct from the confession. We affirm.


                       I. Background
  In the early morning hours following Thanksgiving Day
1983 in Chicago, Illinois, John Durham, Dorothy McDaniel,
and Edward Bradley were in the kitchen of Durham’s apart-
ment when Hinton stopped in to collect a drug debt from
Durham. According to Hinton, after Durham refused to pay
the debt Hinton pulled a loaded .38 revolver from his coat.
Durham allegedly tried to grab the weapon, and Hinton shot
him in the chest and head, killing Durham. Hinton also
shot and killed McDaniel and Bradley, striking each of them
behind the ear at the base of the skull (gangland style).
Chicago police officers called to the scene found all three
victims lying in a pool of blood.
   At this time, the officers’ only lead as to the identity of
the murderer came from one of Durham’s neighbors, Diane
Staton, who told police that immediately after hearing shots
fired from the direction of Durham’s apartment, shortly
after 12 a.m. on November 25, 1983, she observed a man
with a gun walking backwards out of Durham’s apartment.
No. 02-2729                                                    3

Staton told police that she had viewed the suspect from her
upstairs bedroom window across the street from Durham’s
apartment. Staton went on to explain that the entire area
around Durham’s apartment was well-lit and she had an
opportunity to see the man’s face when he turned around
and looked in her direction as he was fleeing from the scene.
Staton’s initial description of the man was that he was black,
about six-foot-two, between 180 and 200 pounds and in his
mid-twenties. Staton subsequently identified Hinton as the
man she saw that night in a police lineup, as well as in
court during the trial.
  Later that day, November 25, 1983, at about 5 p.m., the
police arrived at Hinton’s apartment and, after investigat-
ing an unrelated aggravated battery charge, they arrested
him, advised him of his Miranda rights and conveyed him
to Area 2 police headquarters (“Area 2”). While Hinton was
detained on the battery charge, an undisclosed informant
gave police information that led them to suspect that Hinton
was responsible for the three murders. At this time police
also became aware that Hinton matched the physical de-
scription of the person Staton had observed exiting Durham’s
apartment. Armed with this information, the police brought
Staton to the station and arranged a physical lineup with
the suspect, Hinton, and four other African-American males
similar in age, stature, build and complexion to ascertain
whether Staton could identify Hinton as the person she wit-
nessed exiting the murder scene. Upon viewing the lineup,
Staton identified Hinton as the individual she observed
standing in Durham’s doorway with a gun in his hand shortly
after 12 a.m. on the morning of November 25, 1983.1
  After her positive identification of Hinton in the lineup,
police once again advised the suspect, Hinton, of his
Miranda rights and proceeded to question him about the


1
  Staton’s identification was made around 10 p.m. on November 25,
1983, less than 24 hours after the triple murder.
4                                               No. 02-2729

triple homicide. In the course of their investigation the
officers questioned David Dixon, one of Hinton’s associates.
Dixon denied any involvement in the murders, but revealed
that shortly after the murders Hinton told him that he had
just shot a couple of people and asked Dixon to sell his .38-
caliber gun. Dixon went on to tell the police that, at
Hinton’s direction, he had traded the gun to a man he knew
named James Randall for cocaine. Thereafter, the officers
questioned Randall, who produced the .38-caliber weapon
and confirmed that he had received it from Dixon.
  With the suspected murder weapon in police custody
(ballistics tests later established that Hinton’s .38 was the
murder weapon), the police continued to question Hinton
about the murders. Initially, Hinton denied being present
at the murder scene and came up with an alibi, telling pol-
ice and Asst. State’s Attorney Lori Levin (“A.S.A. Levin”),
who had been called in to take Hinton’s statement, that he
was at home playing cards with his family on the evening
of the murders. However, Hinton’s family refused to corrob-
orate his fabricated alibi and, after police confronted him
with this information, he changed his story and admitted
that he was present at the scene of the murders and that he
was responsible for the deaths of Durham, Bradley, and
McDaniel.
  Following his confession Hinton was interviewed for a
second time by A.S.A. Levin, on November 27, 1983, at 3:30
p.m., in the presence of a stenographer. During the inter-
view, Hinton gave another, this time more detailed “con-
fession” in which he accepted responsibility for the three
murders. However, in this statement Hinton attempted to
paint an implausible picture as to how the homicides
occurred. Hinton told A.S.A. Levin that he shot and killed
Durham in self defense during an altercation the two had
over a drug debt and that Bradley and McDaniel had been
shot “accidently.” According to Hinton, he went to Durham’s
house to collect a drug debt, but encountered Durham,
Bradley and McDaniel when he entered the kitchen to
No. 02-2729                                                      5

demand his money. Durham refused to pay the drug debt
and ordered Hinton to leave. Hinton next stated that he “got
[his loaded] .38 [caliber gun] out of [his] coat,” and “cocked it”
(the gun’s hammer), at which time Durham allegedly made
an attempt to grab the weapon and the two started fighting.
As they struggled, Hinton claimed his weapon just “went off      ”
four times, hitting both McDaniel and Bradley, before he
shot Durham directly in the chest. After being shot once,
Hinton recounted that Durham staggered to his feet and he
(Hinton) shot him again before exiting the house. However,
Hinton’s description of events was in sharp contrast to the
physical evidence the police discovered about the execution-
style slayings during their investigation of the crime scene.
  After Hinton’s statement was transcribed by the stenogra-
pher, A.S.A. Levin read the statement aloud to Hinton and
suggested that he follow along so that he could make any
changes that he thought were needed to accurately reflect the
content of his transcribed statement. Hinton proceeded to
read, approve and initial each page; and then duly signed
the last page of the document. Shortly thereafter, Hinton
was charged with the murders of Durham, McDaniel, and
Bradley, and entered a plea of not guilty to each count.
Hinton then filed a pretrial motion to suppress his written
confession statement given to Levin, claiming that it was
involuntary because it was the product of police brutality.


    A. Suppression Hearing
  The trial judge held a hearing on June 11, 1985 in re-
sponse to Hinton’s motion to suppress. During the hearing,
Hinton testified on direct examination that he was repeat-
edly physically abused and assaulted by police officers
during the nearly forty-six hours he was in custody2 before



2
    This time period includes the additional time he was confined
                                                     (continued...)
6                                                    No. 02-2729

he gave his confession. He alleged that while he was hand-
cuffed to a wall in the interrogation room, officers repeat-
edly kicked him in the stomach, slapped him in the face,
and punched him in the head. Hinton further stated that,
at one point during his confinement, officers placed a plastic
bag over his head and deprived him of air, denied him
water and food, and prohibited him from using the bath-
room for a period of eighteen hours. Hinton testified that he
finally yielded to the police officers’ demands and gave a
confession statement to Levin only after officers had
escorted him down to the basement of the police station and
applied an electric shock rod to his genitals and his rectum—
Hinton said he confessed to the three murders within a short
period of time after this episode allegedly occurred. How-
ever, when questioned on cross-examination about whether
he had truly sustained any injuries from the alleged assaults,
Hinton admitted that he was not bleeding nor did he have
any bruises on his body (after allegedly being assaulted, hit
in the head and kicked in the stomach repeatedly). None-
theless, Hinton went on to state that after one officer al-
legedly struck him on the chin, he did have a laceration on
his face that bled onto the “jersey” he was wearing at the
time.3 Later in the suppression hearing, the prosecutors
asked Hinton whether the statement he had given to Levin
concerning the murders was fabricated. Hinton replied that
he “made [up] the whole [confession] statement,” and that
he was “never there at the scene of the murder[s].”


2
  (...continued)
while questioned on the aggravated battery charge. Police did not
begin questioning Hinton concerning the murders until after
Staton viewed the police lineup.
3
   In his testimony at the suppression hearing, Hinton referred to
being cut on his chin and then bleeding onto his “jersey” a number
of times. However, the record is clear in reflecting that Hinton did
not introduce his alleged “blood-stained jersey” at any time during
his suppression hearing. Thus, this “evidence” was not before the
court when it ruled against Hinton on the motion to suppress.
No. 02-2729                                                 7

  After Hinton finished testifying, the State called a num-
ber of rebuttal witnesses, including a Lt. Jon Burge of the
Chicago Police Department, the officer in charge of the Area
2 precinct at the time of Hinton’s arrest and interrogation,
who testified that he had neither threatened nor assaulted
Hinton at any time, nor had he witnessed any other officer
assault Hinton. Additionally, police officers Leonard
Bajenski, Thomas Krippel, and Patrick Mokry—all of whom
were present during Hinton’s interrogation—stated that
they had neither struck nor assaulted him, nor did they
threaten him in any manner at any time before, during, or
after his questioning. The officers further testified that,
although Hinton was detained on the aggravated battery
charge for nearly two days before he was charged with the
murders, he was questioned about the murders on only five
occasions, and each period of questioning only lasted
between ten and forty-five minutes. During the remaining
time Hinton was in custody (while the officers questioned
witnesses and continued to investigate the crime scene), the
officers stated that Hinton was allowed to sleep if he wished
and that he was fed and given soda on several occasions.
  Assistant State’s Attorney Levin likewise testified at the
suppression hearing that, after she had properly Mirandized
Hinton, he acknowledged that “he understood each and every
one of his Miranda rights, and that he wished to speak to
[her ]” about the murders. In addition, Levin stated that, at
no time during the interview nor at any other time, did
Hinton complain to her about any physical abuse, nor did
he request counsel. Levin further stated that, after Hinton
gave his statement admitting responsibility for the murders,
the statement was transcribed and read aloud to him, and
he was given an opportunity to review it in typewritten form
before he initialed and approved each page and signed the
last page. When Levin was asked if Hinton had given her
any reason as to why he finally decided to give the confes-
sion, Levin said that Hinton had told her that “he had thought
8                                                No. 02-2729

about what had happened . . . [and] that he wanted to tell
the truth.”
  After hearing and weighing the conflicting accounts pre-
sented by Hinton and the State’s witnesses, the trial judge
concluded that the testimony and evidence adduced at the
suppression hearing presented a “credibility question” and
that, “based on what [he] heard and the demeanor of the
witnesses and the like, and the evidence presented,” Hinton’s
motion to suppress should be denied. After the judge denied
the motion, Hinton waived his right to a jury trial, the judge
accepted the waiver and the case proceeded to a trial before
the court.


    B. Bench Trial
   Hinton’s trial commenced on July 8, 1985, less than a
month after the suppression hearing. Hinton chose to tes-
tify in his own defense and offered testimony that was simi-
lar in all material respects to the pretrial confession he had
given to Levin, and once again he implausibly claimed to
have fired his weapon at the victims in self-defense. As in
his confession statement, Hinton admitted that he went to
Durham’s house the night of the murders to collect a drug
debt, and during an ensuing altercation with Durham
concerning the debt, the two “wrestled over [his .38-caliber
weapon].” As the two struggled over control of the gun,
Hinton claimed that Durham “made me pull the trigger”
“three . . times,” striking Durham, McDaniel, and Bradley.
Hinton stated further that following his struggle with
Durham, he “shot him . . . twice or three times” and “ran
out of the door [of the apartment].” When questioned on
cross-examination, Hinton acknowledged that after he left
the murder scene he asked Dixon to sell the .38-caliber gun
used in the shootings and further stated that the confession
he gave to the Assistant State’s Attorney (implausibly
No. 02-2729                                                 9

claiming that the shootings were in self-defense) was an ac-
curate account of what occurred the night of the murders.
   The evidence and testimony presented by the State, how-
ever, overwhelmingly established Hinton’s guilt beyond a
reasonable doubt as to each and every element of the
murders charged. The State’s evidence conclusively proved
that Hinton’s actions on the night of the murders were not
taken in self-defense, but instead were “voluntarily and
wilfully committed act[s], the natural [result] of which was
to cause death or great bodily harm” to Durham, McDaniel
and Bradley. People v. Lee, 628 N.E.2d 436, 440 (Ill. App.
Ct. 1993). Diane Staton assisted in providing identification
testimony linking Hinton to the murders, testifying that,
just after she heard five shots fired from the direction of
Durham’s apartment on the night of the murders, she looked
out her bedroom window and saw an individual matching
Hinton’s physical description walking backwards out of
Durham’s apartment with a gun in his hand, and that she
was able to get a good look at the suspect when he “turned
around [and] turned directly toward [her].” Staton then re-
affirmed the positive identification she made of Hinton in
the police lineup at Area 2 the morning after the murders.
When asked at trial to identify the individual she had iden-
tified in the police lineup from the witness stand, Staton
pointed to Hinton.
  The State presented additional testimony and evidence
linking Hinton to the murder weapon as well as the mur-
ders themselves. David Dixon testified that, as he had told
the police during the course of the investigation, approxi-
mately two hours after the murders Hinton stated that he
had just shot a person who owed him money, and further-
more that he “had to shoot a couple of people.” Dixon went
on to state that Hinton had told him that he had gone to
Durham’s house “to rob him.” According to Dixon, Hinton,
after the murders, asked Dixon to sell his .38-caliber pistol;
10                                                No. 02-2729

the gun that the police subsequently tracked down and,
after testing and examination, established as the murder
weapon. Dixon next stated that he later sold the gun to a
man named James Randall. The State corroborated Dixon’s
testimony concerning the sale of the murder weapon to
Randall with the testimony of Detective Thomas Kripple of
the Chicago Police Department, who recounted that after
questioning Randall concerning the whereabouts of the .38-
caliber weapon he received from Dixon, Randall delivered
the weapon to Kripple at the Area 2 station. The State also
submitted Hinton’s signed statement (given to A.S.A. Levin)
in which he confessed to having fired the weapon that killed
Durham, Bradley and McDaniel in support of its theory
that Hinton had indeed committed the three murders
charged. Additionally, the State presented the testimony of
two forensic medical examiners and a ballistics expert who
each identified the .38-caliber weapon brought to the
station as having been used in the triple murders charged
to Hinton.4
  The State also presented testimony from the State’s med-
ical examiners, Dr. Choi and Dr. Beamer, about the victims’
causes of death and the location of their gunshot wounds.
The doctors’ testimony made clear that the murders were
carried out in a manner completely contradictory to that of
Hinton’s fairy-tale recitation that he had shot the three
victims in self-defense. Indeed, both Dr. Choi and Dr.
Beamer’s testimony established that the murders were
carried out in a vicious and methodical manner, with all




4
  The State’s two medical examiners, Dr. Lee Beamer and Dr.
Eupil Choi, stated that during their pathological examinations
they removed five bullets in total from the victims’ bodies, two
bullets each from Durham and Bradley’s bodies and one from
McDaniel’s. The State’s ballistics expert testified that he ex-
amined the five bullets and determined that all the bullets were
discharged from Hinton’s .38-caliber weapon.
No. 02-2729                                                    11

three victims being shot in the head at close range.5
   After weighing the totality of the evidence against Hinton,
the judge rejected his implausible explanation that he had
shot the victims in self-defense and found Hinton guilty of
having intentionally murdered Durham, McDaniel and
Bradley. See Ill. Rev. Stat. 1983, ch. 38, ¶ 9-1(a)(1)-(2). After
the filing of the pre-sentence report and the sentencing
hearing, the judge sentenced Hinton to concurrent terms of
life imprisonment as to each count, without the possibility
of parole. Hinton appealed his convictions and the sentences
imposed, but did not appeal the trial court’s denial of his
motion to suppress.


    C. Post-Conviction Proceedings
  After an unsuccessful direct appeal, Hinton filed a post-
conviction petition in the Circuit Court of Cook County,
claiming that the Chicago Police had violated his Fifth
Amendment protection against self-incrimination by ille-
gally coercing his confession. According to his petition, police
officers coerced him into confessing to the murders by
allegedly “physically beating” and “electrocut[ing]” him. In
support of his claim, Hinton presented court documents,
published reports, court opinions and newspaper articles de-
tailing complaints by other criminal detainees who claimed


5
   Dr. Choi explained that Durham died as a result of a gunshot
wound to the right temple at close range, and furthermore he had
received another gunshot wound to the chest. Dr. Beamer stated
that after examining Bradley and McDaniel to determine the
cause of their respective deaths, he concluded that both victims
died after they were struck by individual bullets that lodged
behind the left ear of each at the base of the skull. Additionally,
Dr. Beamer said that both victims had “symmetric epidermal
abrasions”—or powder burns—surrounding their wounds, estab-
lishing that they were shot at close range. Dr. Beamer also deter-
mined that Bradley was shot once in the back.
12                                                 No. 02-2729

that they had also been physically assaulted and coerced
into giving confessions by police officers while confined at
Area 2 (including Lt. Burge; the officer in charge at the
time of Hinton’s interrogation). See, e.g., People v. Hobley,
637 N.E.2d 992 (Ill. 1994); People v. Wilson, 506 N.E.2d 571
(Ill. 1987).
  Included in Hinton’s presentation were the February 1993
findings of the Chicago Police Board’s investigation into
allegations of police abuse at Area 2 concerning the time
frame in question. The report concluded that “[Lt.] Burge . . .
should be separated from the [Police] Department” as a
result of his improper treatment of a murder suspect
(Andrew Wilson, see People v. Wilson, 506 N.E.2d 571).
Hinton requested an evidentiary hearing in order to develop
this “newly-discovered” evidence that his confession was the
product of police coercion.
  The circuit judge dismissed Hinton’s petition after con-
cluding that Hinton’s “newly-discovered” evidence of police
brutality at Area 2 did not entitle him to an evidentiary
hearing. The judge concluded that the “evidence” Hinton
presented in his post-conviction petition was insufficient to
demonstrate any likelihood that his confession was coerced.
Furthermore, the judge, after reviewing all of the tes-
timony, found that Hinton had failed to present sufficient
evidence that he was physically injured in a manner
“consistent with police brutality,” and had “not provided a
scintilla of direct evidence to suggest” that the police officers
who testified at his suppression hearing gave “perjurious
testimony” when they “denied [that they had] physically
abus[ed] Hinton [during his custody].” Hinton appealed the
circuit court’s decision, and the state appellate court affirmed
the judgment. Thereafter the Illinois Supreme Court denied
review.
  Subsequently, Hinton filed a petition for a writ of habeas
corpus in federal court, claiming that the admission of his
No. 02-2729                                                      13

confession at trial violated his Fifth Amendment protection
against self-incrimination because he had been forcibly co-
erced into giving it. Hinton requested, but was denied, an
evidentiary hearing to allow him to develop his claim that
his “newly-discovered” evidence of police abuse at Area 2
demonstrated that his confession was coerced. See Townsend
v. Sain, 372 U.S. 293, 312-14 (1963), overruled on other
grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). The
district court concluded that even if Hinton’s confession was
coerced (and thus should not have been admitted at trial),
the judge’s decision to allow it in evidence was harmless in
view of the overwhelming evidence of guilt the State had
introduced, independent of the confession. Accordingly, the
district court denied Hinton’s petition for habeas relief.
Hinton appealed, and we granted a certificate of appeal-
ability to consider whether Hinton’s confession should have
been admitted at trial, and whether its admission preju-
diced his defense.


                          II. Analysis
  Our review of the state courts’ adjudication of Hinton’s
alleged involuntary confession claim is governed by the
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (codified at
28 U.S.C. § 2254).6 Under the AEDPA, a state prisoner who



6
  The Respondent argues that Hinton’s Fifth Amendment claim
has been procedurally defaulted because Hinton failed to “fairly
present” this claim to the Supreme Court of Illinois. We disagree.
In his petition for leave to appeal to the Supreme Court of Illinois,
Hinton relied on Illinois and United States Supreme Court cases
that address involuntary confession claims, made explicit refer-
ence to his Fifth Amendment rights in the context of his claim
that he was “coerced to confess,” and also went into significant
                                                     (continued...)
14                                                  No. 02-2729

petitions for a writ of habeas corpus must establish that the
state courts’ adjudication of his case was “contrary to, or
involved an unreasonable application of, clearly-established
Federal law, as determined by the Supreme Court of the
United States,” or “was based on an unreasonable determi-
nation of the facts in light of the evidence presented in the
state court proceeding.” 28 U.S.C. § 2254(d)(1) & (2). We
review these questions de novo. Schaff v. Snyder, 190 F.3d
513, 522 (7th Cir. 1999).
  Hinton argues that the Illinois courts’ application of clearly
established federal law governing the voluntariness of con-
fessions, see Miller v. Fenton, 474 U.S. 104, 109-110 (1985),
to the facts of his case was unreasonable.7 See 28 U.S.C.
§ 2254(d)(1). He posits that he presented the state courts
with sufficient “newly-discovered” evidence concerning al-
leged abusive police conduct at the Chicago Police Depart-
ment Area 2 to demonstrate that his confession was coerced
and thus should not have been admitted at his trial.
  Hinton faces an uphill battle (as he did in the three other
courts to render a decision on the same facts) in his attempt
to convince us that the trial judge’s decision to admit his
confession was in error. The only “evidence” that Hinton


6
  (...continued)
factual detail regarding his alleged abuse at the hands of police.
See Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001).
Accordingly, we conclude that Hinton did indeed sufficiently al-
lege the substance of his Fifth Amendment coerced confession in
front of the Illinois Supreme Court, and we therefore have juris-
diction to reach the merits of Hinton’s claim.
7
  Respondent argues that Hinton’s petition should be evaluated
under § 2254(d)(2) instead of § 2254(d)(1). However, whether
Hinton’s confession should have been admitted at his trial is a
“mixed question of fact and law,” Miller, 474 U.S. at 112, subject
to review under § 2254(d)(1). See Porter v. Gramley, 112 F.3d
1308, 1313 (1997)
No. 02-2729                                                       15

produced at his suppression hearing in support of his
coerced confession claim was his own self-serving state-
ments and testimony. However, he failed to corroborate his
allegations of the physical abuse that he alleged he sustained
with any evidence,8 such as eyewitness reports, medical
records, and /or photographs, in support thereof, see Wilson
v. City of Chicago, 6 F.3d 1233, 1236 (7th Cir. 1993). In-
deed, his failure to produce any corroborating eyewitness
testimony, medical records or supporting evidence at the
suppression hearing, dealing with the injuries he alleges he
sustained while in custody, significantly undermines his
involuntary confession claim. See Mahaffey v. Schomig, 294
F.3d 907, 917 (7th Cir. 2002). Because Hinton failed to offer
any evidence at the suppression hearing aside from his own
testimony, he presented the trial judge with a clear question
of the credibility of the witnesses, which was properly
resolved in the State’s favor. On habeas review, we are
required to accord credibility determinations by a state trial
court a “presumption of correctness,” and we can only dis-
turb the court’s conclusions if Hinton demonstrates with
“clear and convincing evidence” that its determinations were
erroneous. See 28 U.S.C. § 2254(e)(1); Sprosty v. Buchler, 79
F.3d 635, 643 (7th Cir. 1996).
  However, we need not determine if the “newly-discovered”
evidence Hinton presented regarding abusive police prac-
tices at the Area 2 station is sufficient to demonstrate by
clear and convincing evidence that the trial court’s credibil-



8
  Hinton maintains that his “blood-stained jersey” is evidence of
his injuries while in custody. However, because Hinton failed to
produce this evidence at the earlier suppression hearing even
though it was available for production at the time, his “blood-stained
jersey” will not be considered as newly discovered evidence that
satisfies the AEDPA’s mandate that evidence sought to be intro-
duced in an evidentiary hearing must be evidence that “could not
have been previously discovered through the exercise of due dil-
igence.” 28 U.SC. § 2254(e)(2)(A)(ii).
16                                               No. 02-2729

ity determinations were erroneous, because any potential
error caused by the admission of his confession was harm-
less in light of the wealth of evidence of his guilt, separate
and distinct from his confession. See, e.g., Hopkins v.
Cockrell, 325 F.3d 579, 585 (5th Cir. 2003); Johnson v.
Cain, 215 F.3d 489, 497 (5th Cir. 2000). Even were we to
assume that Hinton’s confession was coerced and should not
have been admitted at trial, he is only entitled to habeas
relief if the state court’s admission of his allegedly coerced
confession actually caused his custody. Aleman v. Sternes,
320 F.3d 687, 690 (7th Cir. 2003). However, if the constitu-
tional error alleged on the part of the state court did not
cause Hinton’s custody, then the error is harmless and the
writ should not issue. Id. This court has previously held
that the harmless error doctrine applies to alleged coerced
confessions. Arizona v. Fulminate, 499 U.S. 279, 308 (1991);
United States v. Alwan, 279 F.3d 431, 438 (7th Cir. 2002).
When applying the harmless error doctrine on collateral
review, we may only grant Hinton’s petition for a writ of
habeas if we conclude that the admission of his confession
“had substantial and injurious effect or influence in deter-
mining the jury’s verdict,” which it did not. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776 (1946)); see also Aleman,
320 F.3d at 690 (holding that the Brecht standard applies on
federal collateral review, even after passage of the AEDPA).
  Hinton somehow contends that without the confession,
the trial court would have been “reluctant” to convict him
and also argues that the trial court’s admission of his con-
fession was not harmless. Aside from the confession, Hinton
claims the State had no evidence that linked him to the
crime except for the testimony of Diane Staton and David
Dixon, which Hinton attempts to characterize as “weak and
unreliable.” We disagree and conclude that the trial court
would have convicted him even if the confession were not
introduced at trial due to the wealth of other corroborating
No. 02-2729                                                      17

evidence that the State produced which established Hinton’s
guilt beyond a reasonable doubt.
  Hinton himself provided much of the evidence that the
State needed to establish his guilt. At trial, Hinton vol-
untarily took the witness stand and admitted that, on the
night of the murders, he went to Durham’s house armed
with a loaded .38-caliber pistol and fired five shots killing
Durham, McDaniel, and Bradley. Hinton also bolstered any
“weakness” or “unreliability” in Staton’s testimony by cor-
roborating Staton’s identification of him when admitting
that he was the gunman that she saw backing out of
Durham’s apartment. See United States v. Crotteau, 218
F.3d 826, 833 (7th Cir. 2000); People v. Mahaffey, 742 N.E.2d
251, 266 (Ill. 2000); People v. Herrett, 561 N.E.2d 1, 6 (Ill.
1990). Dixon’s testimony regarding Hinton’s admissions the
day of the murders was also corroborated when Hinton
testified on the witness stand that he shot the three victims
and subsequently gave Dixon the murder weapon and asked
him to sell it. See United States v. Curtis, 324 F.3d 501, 507
(7th Cir. 2003) (stating that party admissions are reliable
evidence if sufficiently corroborated). In addition, the State
provided supplemental evidence demonstrating both
Hinton’s presence at the crime scene and his use of the
recovered .38 pistol to kill the three victims.9 This is not to
mention that the two medical examiners who testified at
trial completely destroyed Hinton’s fabricated self-defense
argument by testifying that the manner in which the
victims were killed suggested that they were executed
gangland style rather than accidentally struck during a



9
   Recall that the State’s ballistics experts testified that this gun
was in fact the weapon used to commit the murders, and the State
tied Hinton to the gun through his own testimony, and that of
Dixon and Officer Kripple. See People v. Brown, 661 N.E.2d 287,
296 n.1 (Ill. 1996).
18                                                    No. 02-2729

struggle, as Hinton claimed.10 Indeed, the witnesses at trial
(both Hinton and the State’s) repeated, in all significant
respects, the incriminating portions of Hinton’s pretrial
confession statement. Therefore, the confession statement
itself was merely cumulative and even if we were to assume
that its admission at trial was erroneous, any error would
be harmless.11 See Brecht, 507 U.S. at 639; United States v.
Thompson, 286 F.3d 950, 962 (7th Cir. 2002).
   Thus, even if we were to assume that the admission of
Hinton’s confession was in error, a question which we do not
reach, the confession did not cause a “substantial and
injurious effect or influence in determining [the] verdict”


10
     See supra note 5, at p. 11 and accompanying text.
11
   Hinton contends that the admission of his confession “prejudiced
[his] defense because it forced him to change his trial strategy” in
that “he would not have testified” at his trial were it excluded (he
also asserted in his reply brief that had his confession been
suppressed the State may have offered him a plea, and claimed at
oral argument that he would have opted for a jury trial instead of
a bench trial, arguments we do not consider because he waived
them by not presenting them in his opening brief, United States
v. Collins, 361 F.3d 343, 349 (7th Cir. 2004)). The Supreme Court,
however, has rejected such attempts on the part of criminal de-
fendants to play Monday morning quarterback when their trial
strategies turn sour and do not produce the sought-after results.
See Ohler v. United States, 529 U.S. 753, 755, 757 (2000) (“the
defendant in a criminal trial must make choices as the trial pro-
gresses” . . . “a party introducing evidence cannot complain on
appeal that the evidence was erroneously admitted”); see also United
States v. Saunders, 359 F.3d 874, 878 (7th Cir. 2004). Hinton,
with the assistance of counsel, chose freely and voluntarily to
testify, and he is bound by this decision. He cannot afterward,
when his choice to testify yields negative consequences, turn
around, and on collateral attack, attribute the effects of his deci-
sion to an alleged error in an evidentiary ruling by the trial court.
See Ohler, 529 U.S. at 758.
No. 02-2729                                                19

against him, and as a result any possible error in its admis-
sion was harmless. Brecht, 507 U.S. at 637. Accordingly, he
is not entitled to a writ of habeas corpus.
                                                   AFFIRMED.




  WOOD, Circuit Judge, concurring. While I agree that the
district court correctly denied Leonard Hinton’s petition for
a writ of habeas corpus under 28 U.S.C. § 2254, given the
stringent standards for relief that apply to such claims, I see
this as a much closer case than the majority does. Hinton
raised a serious challenge to his conviction. He loses,
however, because the state court’s conclusion that the tainted
confession did not affect the outcome of Hinton’s trial was
not downright unreasonable. Nevertheless, the claim Hinton
has made regarding his confession illustrates dramatically
the high price our system of criminal justice pays when
police abuse runs rampant: a cloud hangs over everything
that the bad actors touched, whether or not they did any-
thing wrong on a particular occasion.
  In his § 2254 application, Hinton argued that his confes-
sion to the police was the result of a nightmarish course of
torture (including having a suffocating plastic bag put over
his head, being kept from the toilet, being hung from a pole
near the ceiling, and having his genitals and rectum
shocked) that had lasted over a period spanning several
days. Had he not admitted to the murders in his coerced
confession, he continues, he would not have testified as he
did at the trial, and the remainder of the state’s case (which
included no physical evidence linking him to the scene)
would have looked far weaker. The state court evaluated
the record as a whole, as my colleagues have recounted, and
20                                               No. 02-2729

it concluded that enough evidence existed that was com-
pletely independent of the confession to make it confident
that any error in the admission of the confession was harm-
less. That finding is not so far-fetched that it can be labeled
unreasonable, as the term is defined for AEDPA.
  Nonetheless, as Hinton’s appellate lawyers have pointed
out to this court, a mountain of evidence indicates that tor-
ture was an ordinary occurrence at the Area Two station of
the Chicago Police Department during the exact time period
pertinent to Hinton’s case. Eventually, as this sorry tale
came to light, the Office of Professional Standards Investi-
gation of the Police Department looked into the allegations,
and it issued a report that concluded that police torture
under the command of Lt. Jon Burge—the officer in charge
of Hinton’s case—had been a regular part of the system for
more than ten years. And, in language reminiscent of the
news reports of 2004 concerning the notorious Abu Ghraib
facility in Iraq, the report said that “[t]he type of abuse
described was not limited to the usual beating, but went into
such esoteric areas as psychological techniques and planned
torture.” The report detailed specific cases, such as the case
of Andrew Wilson, who was taken to Area Two on February
14, 1982. There a group led by Burge beat Wilson, stuffed a
bag over his head, handcuffed him to a radiator, and repeat-
edly administered electric shocks to his ears, nose, and
genitals. See People v. Wilson, 506 N.E.2d 571 (Ill. 1987).
Burge eventually lost his job with the police, though not until
1992. See In the Matter of the Charges Filed Against Jon
Burge, No. 91-1856 (Chicago Police Board, February 11,
1993). To this day, Burge has not been prosecuted for any
of these actions, though it appears that he at least thinks
that he may still be at some risk of prosecution. See, for
example, “Cop brutality probe must be thorough, fair,”
Chi. Sun-Times, May 16, 2002 (editorial); Hal Dardick,
“Burge repeatedly takes 5th; Former police commander
stays mum on torture questions,” Chi. Tribune, Sept. 2,
No. 02-2729                                                 21

2004 (noting allegations that Burge or people reporting to
him had tortured 108 Black and Latino suspects between
August 1972 and September 1991).
   It is of course possible—one would hope even likely—
that Burge did not torture every single suspect who crossed
his path. Thus, it was not enough for Hinton to show that
Burge had tortured or supervised the torture of a substan-
tial number of other arrestees. Hinton had to offer some
evidence indicating that he himself was the victim of this
abuse. His task here was exceedingly difficult. First, the
trial court resolved critical issues of credibility against him:
it did not credit his account of the torture at all, given the
lack of markings on his body or other corroborative
evidence. Second, the state court found that the alleged
blood-stained jersey that Hinton argued should have been
introduced into evidence was not the clear evidence of
injury Hinton believed it to be. Third, Hinton did admit to
the killings at the trial, even though he attempted to
characterize them as self-defense or accidents. Coercion or
even torture at the confession stage did not give him
license to commit perjury. The jury was fully entitled to
take this evidence into account and decide how plausible
Hinton’s spin on it was.
  For these reasons, I conclude that the district court
correctly denied Hinton’s petition. I do so, however, aware
that there is some risk of error in every decision that a
court makes. Behavior like that attributed to Burge im-
poses a huge cost on society: it creates distrust of the pol-
ice generally, despite the fact that most police officers
would abhor such tactics, and it creates a cloud over even
the valid convictions in which the problem officer played
a role. Indeed, the alleged conduct is so extreme that, if
proven, it would fall within the prohibitions established by
the United Nations Convention Against Torture (“CAT”),
which defines torture as “any act by which severe pain or
22                                                No. 02-2729

suffering, whether physical or mental, is intentionally in-
flicted on a person for such purposes as obtaining from him
or a third person information or a confession . . .,” thereby
violating the fundamental human rights principles that
the United States is committed to uphold. It is somewhat
disturbing, given the gravity of the problem, to label what
happened as “harmless” error. Nevertheless, I know of no
clearly established Supreme Court case that would have
required the state court to recognize the error as structural in
nature. To the contrary, the Court has used the harmless
error doctrine in involuntary confession cases, although it
has never done so when the coercion rose to the level of
torture. See Arizona v. Fulminante, 499 U.S. 279, 285 (1991);
cf. Brown v. Mississippi, 297 U.S. 278 (1936) (holding that
convictions resting solely on confessions that were “ex-
torted by officers of the State by brutality and violence”
violated the due process clause and the admission of which
at trial was “a wrong so fundamental that it made the whole
proceeding a mere pretense of a trial and rendered the con-
viction and sentence wholly void.”) I respectfully concur.



A true Copy:
       Teste:

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




                    USCA-02-C-0072—1-26-05
