                                 In the

United States Court of Appeals
                  For the Seventh Circuit

No. 10-1566

K EITH B LAND, JR.,
                                                   Petitioner-Appellant,
                                     v.

M ARCUS H ARDY, Warden,
Stateville Correctional Center,
                                                   Respondent-Appellee.


                Appeal from the United States District Court
           for the Northern District of Illinois, Eastern Division.
                  No. 08 C 2602—John W. Darrah, Judge.



     A RGUED O CTOBER 25, 2011—D ECIDED F EBRUARY 13, 2012




  Before E ASTERBROOK, Chief Judge, H AMILTON, Circuit
Judge, and M YERSCOUGH, District Judge.
  E ASTERBROOK, Chief Judge. A jury concluded that
Keith Bland set out to steal some guns from his father’s
house and did not care who got hurt. He and his con-
federates found his stepmother at home. She was exe-



    Of the Central District of Illinois, sitting by designation.
2                                               No. 10-1566

cuted by a bullet to the back of her head. A state court
sentenced Bland to 71 years’ imprisonment for murder
and armed robbery. His conviction was affirmed on
appeal, and the state judiciary rejected a collateral at-
tack. He then tried federal court under 28 U.S.C. §2254 and
lost again. 2010 U.S. Dist. L EXIS 13624 (N.D. Ill. Feb. 12,
2010). We issued a certificate of appealability, see 28
U.S.C. §2253(c), and appointed counsel to represent
Bland on appeal.
   Counsel’s lead argument is that the prosecutor vio-
lated the due process clause of the fourteenth amend-
ment by taking advantage of an error during Bland’s
testimony. Bland said that he had been arrested on felon-
in-possession charges in January 2000, and that the
police had confiscated his .38 caliber handgun. The rob-
bery and murder took place in September 2000, and
during closing argument the prosecutor argued that
the confiscation of a gun eight months earlier gave
Bland a motive to steal another (since he could not buy
a gun lawfully). But Bland’s memory was faulty; he
had been arrested, and the gun confiscated, in Janu-
ary 2001, not January 2000—and the prosecutor knew
it. This sets up Bland’s argument that the prosecution
violated the constitutional rule against knowingly
using false testimony. See Napue v. Illinois, 360 U.S. 264
(1959); Giglio v. United States, 405 U.S. 150 (1972).
  The state judiciary assumed that the prosecutor vio-
lated a constitutional norm but found that Bland had not
suffered any injury. Using the right date, a prosecutor
could have argued that Bland’s possession of a .38 caliber
No. 10-1566                                               3

handgun in January 2001 was evidence of guilt, because
that type of gun delivered the fatal shot. We need not
decide whether this is right, because Bland’s substantive
argument does not get past the screen in 28 U.S.C.
§2254(d), a part of the Antiterrorism and Effective
Death Penalty Act. Section 2254(d) provides:
   An application for a writ of habeas corpus on
   behalf of a person in custody pursuant to the
   judgment of a State court shall not be granted
   with respect to any claim that was adjudicated on
   the merits in State court proceedings unless
   the adjudication of the claim—
       (1) resulted in a decision that was contrary to,
       or involved an unreasonable application
       of, clearly established Federal law, as deter-
       mined by the Supreme Court of the United
       States; or
       (2) 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.
Bland’s claim was adjudicated on the merits in state
court, whose decision was neither contrary to, nor an
unreasonable application of, Napue and similar decisions.
  Napue and Giglio hold that a prosecutor may not
offer testimony that the prosecutor knows to be false.
They do not hold that a prosecutor is forbidden to
exploit errors in testimony adduced by the defense.
Prosecutors often know that defense testimony is wrong.
4                                                No. 10-1566

For example, a defendant may testify to a false alibi.
A prosecutor who knows that the defendant’s testi-
mony is bogus is entitled to take advantage of the op-
portunity to undermine the defense, perhaps by
arguing that the testimony conflicts with that of other
witnesses and that someone must be lying, or perhaps
(parallel to the situation here) by arguing that, if the alibi
is truthful, it shows that the defendant had a motive,
or was committing some other crime that reflects poorly
on his honesty. The prosecutor not only argued that the
supposed arrest in January 2000 was evidence of motive
but also tried to exploit an alibi that the prosecutor
thought fishy: Bland testified that he was selling
cocaine when the murder occurred. The prosecutor,
who did not believe that alibi, nonetheless used it to
contend that Bland had depicted himself as a person
who would violate the law, including the laws against
murder and perjury, whenever he thought he could
get away with it. Bland does not contend that this use
of his testimony violated Napue; it is hard to see why
the use of his testimony about the date a gun had been
confiscated from him would do so.
  Bland’s able counsel in this court concedes that no
decision of the Supreme Court clearly establishes that a
prosecutor cannot make hay from a defendant’s false
testimony. Instead counsel appeals to “fundamental
fairness.” And there is something unsettling about a
prosecutor using a defendant’s testimony to contradict
a known fact. But “fundamental fairness” is too high
a level of generality to satisfy §2254(d)(1). Until the Su-
preme Court has made a right concrete, it has not been
No. 10-1566                                                5

“clearly established.” See, e.g., Wright v. Van Patten, 552
U.S. 120, 125–26 (2008); Carey v. Musladin, 549 U.S. 70,
77 (2006). More: the principal role of the due process
clause is to ensure a trial at which the truth can emerge
through an adversarial presentation. Nothing pre-
vented Bland’s defense team from correcting his testi-
mony. The date of his arrest was well documented;
his lawyer had the papers just as the prosecutor did.
Bland’s counsel could have corrected the error when it
was made, or immediately after he left the stand, or
even in closing argument (the prosecutor spoke first, as
is normal). There is nothing “fundamentally unfair”
about leaving to the adversarial process the exchange
of arguments about inferences to be drawn from the
date of an arrest and a weapon’s confiscation, when
both sides have equal access to the facts.
  Bland relies on the due process clause for a second
argument. The Supreme Court held in Doyle v. Ohio, 426
U.S. 610 (1976), that because Miranda warnings assure
suspects that they need not answer an interrogator’s
questions, it violates the due process clause for a pros-
ecutor to ask a jury to infer guilt from silence. That infer-
ence would contradict the warnings and double-cross
the suspect. Bland contends that the prosecutor vio-
lated this rule by asking an officer who had inter-
rogated Bland what happened when the officer asked
a particular question. The officer replied that Bland put
his fingers in his ears, pretended that he had not heard
the question, and shouted “blah, blah, blah, blah” in
an effort to drown out that question and future ques-
tions. Bland now contends that a shouted “blah” is the
6                                                No. 10-1566

same as “silence” because, like genuine silence, it does
not convey information.
  We may suppose, without deciding, that making a
rude noise or reciting “Jabberwocky” in response to
a question is the functional equivalent of silence.
Miranda v. Arizona, 384 U.S. 436 (1966), is based on the self-
incrimination clause of the fifth amendment (applied to
the states through the due process clause of the four-
teenth). The four famous warnings are designed to
ensure that a suspect knows that he need not provide
incriminating evidence, unless the government sup-
plies immunity (which makes the evidence no longer
incriminating). Neither a rude noise nor a string of non-
sense words is incriminating.
  This assumption does not benefit Bland, however,
because he did not make loud noises from the outset.
He met with police several times, waived his right to
remain silent, and made statements. He said, among
other things, that he had been playing basketball with
Christopher Scott the afternoon of the murder. That
was his first proffered alibi—and at trial, when he gave
a different alibi (that he had been selling cocaine all
day), he necessarily conceded that he had been lying.
The police cottoned onto the lie much earlier, and they
asked Bland how other facts they had discovered (in-
cluding Scott’s confession that he and Bland had cooked
up this alibi) could be reconciled with the story about
basketball. That is when Bland put his fingers in his
ears and refused to say more. We therefore do not have
a situation in which a suspect was silent throughout;
No. 10-1566                                             7

we have instead a situation in which the suspect said
some things, and a later decision to clam up may illumi-
nate the significance of what was said.
   Anderson v. Charles, 447 U.S. 404 (1980), holds that
Doyle does not prevent a prosecutor from using a deci-
sion to stop talking as the basis for an inference that
what the suspect had said earlier was false—or perhaps
that the suspect was implying its truth by refusing to
add corroborating detail. See also Fletcher v. Weir, 455
U.S. 603 (1982); Jenkins v. Anderson, 447 U.S. 231 (1980).
Prosecutors always can put in evidence of, and make
arguments about, what suspects actually say. Just as
flight to avoid apprehension can reflect consciousness
of guilt, so a sudden silence can reflect a suspect’s con-
sciousness that he has dug himself into a hole and
cannot see an exit. That’s a fair subject for comment,
Charles holds, though an express invocation of the right
to remain silent might not be. Doyle and Charles show
that, when a suspect in custody starts talking and then
stops, the constitutional line can be a fine one. Given
the deferential standard we apply on collateral review,
see 28 U.S.C. §2254(d), it is enough to conclude here
that the state courts’ decision was not contrary to, or
an unreasonable application of, the Supreme Court’s
clearly established law.
  Finally, Bland contends that the court violated the
Constitution by requiring him to wear a stun belt
during trial, without first finding that this was neces-
sary for security in the courthouse. See Deck v. Missouri,
544 U.S. 622, 626–29 (2005). We concluded in Stephenson
8                                               No. 10-1566

v. Wilson, 619 F.3d 664 (7th Cir. 2010), that the need for
a particularized showing of dangerousness was clearly
established before 1997; the rule is thus no less
applicable to Bland’s trial than it was to Stephenson’s.
The prosecutor did not try to show that Bland is too
dangerous to be left unrestrained in a courtroom—but
then Bland did not ask for such proof. Perhaps this
was because his lawyer thought that the prosecutor
could have supplied it, so there was no reason to
belabor the issue; but perhaps his lawyer missed an
opportunity to do some good for the defense by
removing the risk that the jury would believe that
Bland had already been adjudicated to be a menace to
anyone near him. Bland’s current lawyer takes the
latter view, blames trial counsel for not demanding a
hearing, and chastises appellate counsel in state court
for not attacking the performance of trial counsel.
   To preserve a question for federal collateral attack, a
person must present the contention to each level of the
state judiciary. O’Sullivan v. Boerckel, 526 U.S. 838 (1999).
Illinois contends that Bland scuttled his claim by
omitting one important element from his direct appeal
(he did not tell appellate counsel about the stun belt
until three months after the briefing had been com-
pleted; no wonder the subject went unmentioned) and
another from his presentation to the Supreme Court of
Illinois when filing a petition for leave to appeal. We
need not decide whether Bland has committed a proce-
dural default, because his argument fails on the merits.
28 U.S.C. §2254(b)(2).
No. 10-1566                                              9

   Bland devotes much of his brief to arguing that Illinois
failed to hold the sort of hearing required by Deck and
its predecessors. Yet that argument was forfeited in
state court, and it can be resurrected only as part of the
“prejudice” component of a contention that Bland
received ineffective assistance of counsel. The state judi-
ciary found no prejudice because, it believed, the
stun belt was not visible to the jury. (It was under
Bland’s shirt.) Prejudice is one of two components of the
ineffective-assistance inquiry under Strickland v. Wash-
ington, 466 U.S. 668 (1984). The other is objectively
deficient performance—performance so bad that the
lawyer was not the sort of “counsel” of which the sixth
amendment speaks. Bland has not demonstrated that
he received assistance that bad.
  Bland assumes that all he need do to establish
deficient performance is to assert that, if counsel had
made a simple objection, the stun belt would have van-
ished. After all, Bland observes, the record does not
establish that he is too dangerous to be allowed to sit in
a courtroom unrestrained. But it does not follow that
a word from counsel would have eliminated the stun
belt; instead a word from counsel might have precip-
itated a hearing, the outcome of which may have been
to proceed with the stun belt, or perhaps to make it
less visible. A hearing also might have explored
whether the belt was visible to people sitting in the
jury box, and whether laypersons would infer that a
bulky device under a shirt was a stun belt as opposed
to a back or rib cage support of the type that many
athletes wear. Even if Bland could have established that
10                                              No. 10-1566

a hearing would have required the state to get rid of all
physical restraints (relying instead on guards in the
courtroom) or to use a less bulky, and hence less
visible, restraint, it would not follow that counsel had
furnished ineffective assistance. A stun belt may be less
prejudicial to a defendant than a courtroom full of
armed guards. What’s more, the question under
Strickland is not whether the lawyer made a mistake,
even a serious one; it is whether the lawyer’s overall
performance was professionally competent. See, e.g.,
Strickland, 466 U.S. at 686–96; Williams v. Lemmon, 557
F.3d 534 (7th Cir. 2009). A single error may suffice “if
that error is sufficiently egregious and prejudicial.”
Murray v. Carrier, 477 U.S. 478, 496 (1986). “Lest this
exception swallow the rule, however, we must take
the Justices at their word and search for an ‘egregious’
error—an omission of something obviously better (in
light of what was known at the time) than the line of
defense that counsel pursued.” Williams, 557 F.3d at 538.
  When a federal court must decide whether a state
court contradicted the Supreme Court, or resolved an
issue unreasonably, see §2254(d)(2), the petitioner is not
entitled to an evidentiary hearing. Review proceeds
on the evidentiary record compiled in state court. See
Cullen v. Pinholster, 131 S. Ct. 1388 (2011). That principle
tied the hands of the lawyer we appointed to assist
Bland, for counsel had to make do with an essentially
empty record. What do we know from the record
about whether the state could have shown Bland to
be dangerous enough to warrant use of a visible re-
straint? Nothing. What do we know from the record about
No. 10-1566                                             11

whether people in the jury box (the actual jurors,
or surrogates participating in a test) would have
inferred that the bulge was a stun belt as opposed to a
back brace? Nothing. (Bland filed his own affidavit as-
serting that the jurors must have inferred from the
bulk under his shirt that he had a stun belt, but this
issue should be examined from the jurors’ perspective,
not from the defendant’s.) What do we know from the
record about what alternative security steps the state
would have used had the judge ruled out a stun belt?
Nothing. These omissions are no fault of the state
judiciary; they reflect the absence of any effort by Bland
to provide the information to the state judges. This
makes it very hard for a federal court to say that counsel
missed an easy and important strategic victory by with-
holding an objection to the stun belt.
  By contrast, the record does show that counsel put up
a vigorous defense. Omitting a motion directed to the
stun belt is not the sort of inexplicable omission that
renders even an apparently sturdy defense so deficient
that the representation as a whole fell below an “objec-
tive standard of reasonableness.” Strickland, 466 U.S. at
688. That the defense was generally capable implies,
instead, that counsel did not raise the stun-belt question
because he did not expect the issue to confer much if
any advantage on the defense. Strickland tells us that
evaluation of counsel’s work as a whole is “highly defer-
ential” (id. at 689) and that strategic decisions are
“virtually unchallengeable” (id. at 690). The (essentially)
empty record does not show that counsel made a terrible
blunder that greatly diminished his client’s chances.
12                                           No. 10-1566

This is an easier case for the state than Stephenson, and
as the state prevailed in that case it prevails here too.
Bland has not established that he received constitu-
tionally inadequate assistance, so it is unnecessary to
consider the subject of prejudice.
                                               A FFIRMED




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