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

No. 01-3500
KEVIN RICE,
                                             Petitioner-Appellant,
                                 v.

TERRY MCCANN, Warden,
Centralia Correctional Center,
                                             Respondent-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 00 C 3997—Suzanne B. Conlon, Judge.
                          ____________
     ARGUED APRIL 18, 2002—DECIDED AUGUST 6, 2003
                      ____________


  Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR.,
and POSNER, Circuit Judges.
  FLAUM, Chief Judge. In 1992 Kevin Rice was convicted
in the Circuit Court of Cook County of possession of hero-
in with intent to deliver and sentenced to 20 years’ impris-
onment. His state court remedies exhausted, Rice peti-
tioned the federal district court for a writ of habeas
corpus under 28 U.S.C. § 2254. He now appeals the court’s
denial of his habeas petition, arguing that he is entitled
to post-conviction relief based on the Illinois Supreme
Court’s unreasonable application of Chambers v. Missis-
sippi, 410 U.S. 284 (1973), to his case. We affirm.
2                                              No. 01-3500

                     I. BACKGROUND
  In 1989 two Chicago police officers, Robert Drozd and
Michael Cronin, observed a car with tinted windows
drive by their unmarked police car traveling 40 miles-per-
hour in a 30 miles-per-hour speed zone. The officers pulled
the speeding car over, and Drozd approached the vehicle
on the driver’s side. Through the car’s open window, Officer
Drozd saw the driver, petitioner Rice, hand a brown paper
bag to the passenger, Raymond Pugh; Drozd then watched
Pugh stuff the bag down the front of his pants. Believ-
ing the bag to contain a weapon, Drozd ordered Pugh out
of the car and conducted a pat-down search. Drozd recov-
ered the bag and found what appeared to be an illegal
substance inside (lab tests later showed that the bag
contained 103 grams of heroin). Drozd placed Pugh under
arrest and told Officer Cronin about the transfer of the
bag; Cronin then arrested Rice.
  Before Rice and Pugh were tried, Pugh moved to quash
his arrest and suppress evidence obtained from Drozd’s
search. At the suppression hearing, Pugh testified that
he had placed the paper bag containing the heroin down
his pants two hours before he and Rice were stopped by
Officers Drozd and Cronin. Pugh also stated that he had
kept the bag in his pants at all times until Drozd discov-
ered it during the pat-down search. At Rice and Pugh’s
trial, Officer Drozd testified that as he approached the
stopped car he saw Rice hand Pugh the paper bag and
watched Pugh put the bag down his pants. Rice denied
handling the bag or the heroin and called Pugh to testify
that he put the bag down his pants two hours earlier. When
Pugh asserted his fifth amendment privilege, Rice moved
to admit Pugh’s statements from the suppression hear-
ing. The trial judge denied the motion, ruling that Pugh’s
paper bag testimony was inadmissible hearsay because
the issues presented at the suppression hearing were
No. 01-3500                                               3

not similar enough to the ones at trial to ensure that the
State had a meaningful opportunity to cross-examine Pugh.
  The jury ultimately convicted Rice of possession with
intent to deliver heroin, and the court sentenced him to
a 20-year prison term. Rice appealed his conviction, argu-
ing that the court committed prejudicial error by refusing
to admit Pugh’s suppression hearing testimony at trial.
Rice won an initial victory in the Illinois appellate court,
People v. Rice, 617 N.E.2d 360, 363-64 (Ill. App. Ct. 1993),
but a divided Illinois Supreme Court reinstated his con-
viction, People v. Rice, 651 N.E.2d 1083, 1088 (Ill. 1995).
  The Illinois appellate court held that Pugh’s statements
at the suppression hearing were statements against his
penal interest and should have been admitted as an
exception to hearsay. Rice, 617 N.E.2d at 362. The appel-
late court examined Pugh’s prior statements for indicia
of reliability using the framework set forth in Chambers
v. Mississippi, 410 U.S. 284, 302 (1973), and decided that
Pugh’s testimony satisfied three of the four requirements
for admission. Rice, 617 N.E.2d at 363 (finding that Pugh’s
former testimony was (1) corroborated by other evidence,
(2) against his penal interests, and (3) subject to cross-
examination, but was not (4) made to a close acquaintance
shortly after the crime).
  The Illinois high court disagreed, holding that the trial
court’s exclusion of Pugh’s former testimony was proper
under the state’s evidentiary rules and did not deny Rice
a fair trial under the rule announced in Chambers. Rice,
651 N.E.2d at 1087-88. A majority of the Supreme Court
of Illinois found that Pugh’s statements may have been
against his penal interests, but were not made spontane-
ously to an acquaintance, were not corroborated by any
other evidence, and were not subject to adequate cross-
examination because the issues at stake in the suppres-
sion hearing were limited and the State was not permit-
4                                              No. 01-3500

ted “to fully test the testimony’s reliability.” Rice, 651
N.E.2d at 1087.
  Rice timely filed his application for a writ of habeas
corpus in federal district court pursuant to 28 U.S.C.
§ 2254, tendering six separate grounds for relief. See Rice
v. Bowen, No. 00 C 3997, 2001 WL 1035262 (N.D. Ill.
2001). The district court rejected all of his reasons and
denied his habeas petition. On appeal Rice makes only
one argument: that the Illinois Supreme Court unreason-
ably applied Chambers, and violated his constitutional
right to due process, in deciding that the trial court had
properly excluded Pugh’s suppression hearing testimony
at Rice’s trial.


                     II. DISCUSSION
  Under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), a habeas petitioner like Rice whose claim
was adjudicated on the merits in state court is not entitled
to relief unless he can demonstrate that the state court’s
decision “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 . . .
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); Price v. Vincent, 123 S.Ct.
1848, 1852 (2003). The Supreme Court also warns that
under AEDPA we are not at liberty to issue a writ
of habeas corpus based on our “independent judgment
that the relevant state court decision applied clearly
established federal law erroneously or incorrectly. Rather,
that application must also be unreasonable.” Williams
v. Taylor, 529 U.S. 362, 411 (2000); Morgan v. Krenke,
232 F.3d 562, 565-66 (7th Cir. 2000). For our purposes
here, that means we must uphold the Illinois Supreme
Court’s application of Chambers (for there is no dispute
No. 01-3500                                                5

that this is the correct governing legal principle) to
Rice’s case unless it was objectively unreasonable. 28 U.S.C.
§ 2254(d)(1); Edmunds v. Deppisch, 313 F.3d 997, 999 (7th
Cir. 2002); Williams, 529 U.S. at 404-05. We have said
in other habeas proceedings that a state court’s applica-
tion of federal law is reasonable where it is “at least
minimally consistent with the facts and circumstances
of the case.” Sanchez v. Gilmore, 189 F.3d 619, 623 (7th Cir.
1999). Cf. Williams, 529 U.S. at 410 (acknowledging
that “unreasonable” is difficult to define, but noting that
“it is a common term in the legal world and, accordingly,
federal judges are familiar with its meaning”).
  Before we decide the reasonableness of the Illinois
Supreme Court’s decision in this case, we note that we
will not decide whether Pugh’s suppression hearing testi-
mony was in fact reliable enough to be admitted into
evidence at Rice’s trial. Our doing so would usurp the
role of the state courts in determining the admissibility
of evidence at trial under state law, which we are not
permitted to do under AEDPA. See Krenke, 232 F.3d at
567. Instead, we may only consider whether it was unrea-
sonable of the Illinois Supreme Court to hold, in light of
Chambers, that the exclusion of Pugh’s suppression hear-
ing testimony did not violate Rice’s due process right to
present a defense and receive a fair trial. Krenke, 232 F.3d
at 567.
  Chambers informs us that “where constitutional rights
directly affecting the ascertainment of guilt are implicated,
the hearsay rule may not be applied mechanistically to
defeat the ends of justice.” Id. 410 U.S. at 302. The Cham-
bers Court provided four factors to consider in determin-
ing whether sufficient indicia of reliability exist to admit
exculpatory hearsay into evidence: (1) whether the state-
ment was made shortly after the crime to a close acquain-
tance, (2) whether other evidence or circumstances cor-
roborate the statement, (3) whether the statement was self-
6                                             No. 01-3500

incriminatory and against the declarant’s penal interests,
and (4) whether the declarant was subject to adequate
cross-examination. Id. at 300-01. Rice contends that the
Illinois Supreme Court unreasonably applied Chambers
because Pugh’s suppression hearing testimony “bore per-
suasive assurances of trustworthiness and thus was well
within the rationale of the exception for declarations
against interest.” Chambers, 410 U.S. at 302. See also
People v. Rice, 617 N.E.2d 360, 363 (Ill. App. Ct. 1993)
(finding Pugh’s prior statement trustworthy as it sat-
isfies three of four Chambers factors). The State main-
tains there was nothing unreasonable about the Illinois
Supreme Court’s decision: the court identified Chambers
as the correct governing principle of law, considered
Pugh’s prior statements in light of the reliability factors
identified in Chambers, and logically concluded that Pugh’s
suppression hearing testimony was properly excluded
at trial because it was untrustworthy and did not qualify
under any hearsay exception. The federal district court
considered these conflicting interpretations in reviewing
Rice’s habeas petition and decided the Illinois Supreme
Court’s application of Chambers was consistent with the
facts and circumstances of Rice’s case and was therefore
not unreasonable. Rice, 2001 WL 1035262, at *3.
  Our review of the record in this case leads us to con-
clude that the disagreement among the Illinois state
courts concerning the reliability of Pugh’s statement,
and the necessity for its admission at Rice’s trial pursu-
ant to Chambers, was reasonable. There is no doubt that
Pugh’s testimony at the suppression hearing—that he
alone had possession of the heroin—is the kind of exculpa-
tory (to Rice) hearsay that Chambers held could not be
automatically excluded by operation of the rules of evi-
dence. The Illinois courts agreed on two of the four Cham-
bers reliability indicators: (1) that Pugh’s testimony was
not made shortly after the crime to a close acquaintance,
No. 01-3500                                                  7

and (2) that the testimony was a statement made against
Pugh’s penal interests. But the courts disagreed on the
remaining two factors: (3) whether corroborating evi-
dence existed to support Pugh’s version of events; and (4)
whether the state had adequate opportunity to cross-
examine Pugh at the suppression hearing. In particular, the
Illinois appellate court decided that several facts and
circumstances, including Pugh’s close relationship with
Rice, the voluntariness of his testimony, the lack of incon-
sistencies in his story compared with other versions of
the stop and search, the lack of evidence that Pugh
wanted to curry favor with the prosecution, and the fact
that Pugh’s statements were made under oath and could
be used to impeach him at trial, all suggest that Pugh had
no motive to fabricate his testimony. But the Illinois
Supreme Court looked at the circumstances differently,
stating without reference to the appellate court’s analysis
that there was no evidence corroborating Pugh’s state-
ments, and also finding that the prosecution did not have
an adequate opportunity to cross-examine Pugh. The high
court reasoned that because Pugh’s suppression hearing
focused on different issues than Rice’s trial, the State could
not have fully tested Pugh’s reliability. Though we may
disagree, knowing of no Illinois rule of evidence that
restricts exploration of a witness’s veracity or motive on
cross-examination regardless of the substantive scope of
the direct examination, our resolution of this point is
neither called for nor permitted on habeas review.
  The Illinois courts’ dispute over the Chambers’ factors
reveals that reasonable minds can differ as to the proper
application of the law to the facts of Rice’s case. Ultimately,
this is all that we need to recognize and defer to in decid-
ing whether to grant Rice’s request for habeas relief.
For even if the Illinois Supreme Court’s application of
Chambers was not unassailable, as shown by the contrary
inferences drawn by the Illinois appellate court using
8                                                No. 01-3500

the same law and the same facts, by the same logic it also
was not unreasonable. Chambers instructs courts to avoid
mechanically applying evidentiary rules where such
application would result in the exclusion of critical evi-
dence and the violation of a criminal defendant’s due
process rights. We cannot conclude that the Illinois Su-
preme Court unreasonably applied this principle of law to
its analysis of Pugh’s excluded hearsay testimony and
the impact of the excluded testimony on Rice’s constitu-
tional right to a fair trial.


                     III. CONCLUSION
  The Illinois Supreme Court’s decision upholding the
trial court’s exclusion of certain hearsay testimony from
Rice’s trial did not involve an unreasonable application of
Chambers v. Mississippi and therefore does not justify
habeas relief in federal court. The district court’s denial of
Rice’s petition for a writ of habeas corpus is AFFIRMED.




  POSNER, Circuit Judge, dissenting. The U.S. Supreme
Court held in Chambers v. Mississippi, 410 U.S. 284, 302
(1973), that “where constitutional rights directly affecting
the ascertainment of guilt are implicated, the hearsay
rule may not be applied mechanistically to defeat the ends
of justice.” With all due respect to the contrary view of
my colleagues, it seems me that this is just what the
Supreme Court of Illinois did in this case.
  A police officer testified that he saw Kevin Rice hand
Raymond Pugh a bag later discovered to contain heroin. On
the basis of this testimony—and nothing else—Rice was
No. 01-3500                                                   9

convicted in an Illinois state court of possession of an illegal
drug and sentenced to a long term in prison. At a pretrial
hearing on his motion to suppress the evidence consist-
ing of the heroin, Pugh testified that Rice had not
handed him the bag; that he had had it on his person for
hours. At trial, Rice wanted to call Pugh as a witness; but
Pugh, invoking his right not to be compelled to incrim-
inate himself, refused to testify. So Rice sought to intro-
duce in evidence the part of the transcript of the suppres-
sion hearing that recorded Pugh’s testimony, testimony that
if believed would exonerate Rice of the charge of possession.
This was refused. The state supreme court’s reasons
for upholding the refusal were that Pugh’s testimony
was not corroborated and that the state had not had an
opportunity to cross-examine him fully at the suppression
hearing. People v. Rice, 651 N.E.2d 1083, 1085-88 (Ill.
1995).
  When as in this case a person who has evidence to
offer is not available to testify, testimony that he gave in
another proceeding is admissible if the opposing party, in
this case the state, “had an opportunity and similar motive
to develop the testimony by direct, cross, or redirect ex-
amination” in that proceeding. Fed. R. Evid. 804(b)(1). I
am quoting from the Federal Rules of Evidence and they
of course do not govern trials in state courts, but the
formulation is standard and Illinois law (though common
law rather than codified) is essentially the same. See
People v. Rice, supra, 651 N.E.2d at 1085 (“it is well set-
tled that the testimony of a witness at a prior hearing
is admissible in evidence at trial where the witness is
unavailable and when ample opportunity to cross-examine
existed at the prior hearing”); People v. Hawkins, 762
N.E.2d 46, 55 (Ill. App. 2001); People v. Taylor, 679 N.E.2d
82, 86-87 (Ill. App. 1997). There is no requirement of
corroboration. That is a requirement of another hearsay
exception, the one for statements against penal interest,
10                                               No. 01-3500

Fed. R. Evid. 804(b)(3); People v. McCallister, 737 N.E.2d
196, 215 (Ill. 2000), which is also applicable to Pugh’s
testimony at the suppression hearing, see People v. Rice,
supra, 651 N.E.2d at 1086-88, but which is unnecessary
to consider, given the prior-testimony exception.
  This is one of the solidest exceptions to the hearsay rule,
see Ohio v. Roberts, 448 U.S. 56, 66 (1980), and a refusal to
apply it in a criminal case presents a substantial issue
under Chambers. The principal justification for the hear-
say rule is that most hearsay statements, being made out
of court, are not subject to cross-examination. People v.
Robinson, 679 N.E.2d 1055, 1059-60 (N.Y. 1997). Hearsay
statements made in court, albeit in a prior proceeding, do
not suffer from that infirmity, provided that, as Rule
804(b)(1) puts it, the opposing party “had an opportunity
and similar motive to develop [or challenge—see Advisory
Committee Note to Subdivision (b), Exception (1)] the
testimony by . . . cross . . . examination.” And again Illinois
law, as set forth in the state supreme court’s decision
upholding Rice’s conviction, People v. Rice, supra, 651
N.E.2d at 1085-86, is the same. An auxiliary justification
for the hearsay rule, but one whose validity has been
strongly challenged, see Michael J. Saks, “Enhancing and
Restraining Accuracy in Adjudication,” 51 L. & Contemp.
Probs., Autumn 1988, pp. 243, 263-64, is that the trier of
fact cannot observe the demeanor of the absent declarant.
  Had Pugh’s testimony at the suppression hearing been
believed, the motion to suppress the drug evidence
would have been granted. The only evidence of probable
cause to seize the drugs was the testimony of the police
officer who claimed to have seen Pugh hand them to Rice,
and his testimony would have been totally discredited
had Pugh been believed. So the state had every incentive
to cross-examine Pugh about his relation with Rice and
any other circumstance that might make him less credible.
And not only the incentive, but the right. As remarked
No. 01-3500                                                11

in People v. Rice, under Illinois law cross-examination even
at a preliminary hearing to determine probable cause for
a search or seizure is not limited to the scope of the direct
examination but includes “such further interrogation
as necessary to show interest, bias, prejudice, or motive of
the witness, to the extent that these factors are relevant
to the question of probable cause.” 651 N.E.2d at 1085. The
Illinois supreme court’s determination that because the
suppression hearing focused on different issues from the
trial the state didn’t have the incentive or opportunity to
test Pugh’s reliability fully is, with all due respect, non-
sense. The issues were different—probable cause to seize
the drugs versus Rice’s possession of them—but the incen-
tive to destroy Pugh’s credibility the same as it would have
been had he testified at trial. If he were believed, the drugs
should not have been seized and Rice was not guilty of
possessing them.
  It is not as if the Illinois court had found that the pros-
ecutor at the suppression hearing in fact lacked an incen-
tive to cross-examine Pugh fully. Rather, the court auto-
matically equated a difference in issues to a difference in
incentives to cross-examine. Here is the key passage in the
opinion: “[T]he question presented at codefendant’s sup-
pression hearing dealt with whether Officer Drozd saw
codefendant [i.e., Pugh] tuck a brown paper bag into his
pants after defendant’s car was stopped, giving the officer
probable cause to search codefendant. The focus of the
cross-examination of codefendant at the suppression
hearing therefore was the conduct of codefendant just
prior to the search, his self-interest in testifying falsely
at the suppression hearing, and the issues presented by
the motion to suppress. At trial however, the State’s focus
would be on the guilt or innocence of defendant—a much
different issue than that presented at the suppression
hearing—and any motive codefendant might have in
making exculpatory statements on behalf of defendant.” Id.
12                                             No. 01-3500

at 1086. The issues were different from a legal standpoint,
but they were not different so far as the relevance of
Pugh’s testimony was concerned. Any motive he might
have had for trying to exculpate Rice would, by undermin-
ing that testimony, strengthen the state’s case that Rice
gave Pugh the heroin and therefore was guilty of illegal
possession.
  The court based the exclusion of reliable evidence es-
sential to give a criminal defendant a crack at acquittal on
an irrational ground, the “different issues” ground that as
I have just explained was irrelevant to the pertinence and
reliability of Pugh’s evidence. Because the state supreme
court’s application of Chambers was unreasonable and
the error not a harmless one, as in the otherwise rather
similar case of People v. Hawthorne, 841 P.2d 118, 125-28
(Cal. 1992), Rice is entitled to a new trial.

A true Copy:
      Teste:

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




                   USCA-02-C-0072—8-6-03
