In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4296

United States of America,
ex rel. Theodore Bell,

Petitioner-Appellee,

v.

Mark A. Pierson, Warden,
Hill Correctional Center,

Respondent-Appellant.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 6467--Milton I. Shadur, Judge.

Argued March 27, 2001--Decided September 10, 2001



  Before Bauer, Posner, and Manion, Circuit
Judges.

  Manion, Circuit Judge. Petitioner
Theodore Bell, a former police officer,
was convicted in Illinois state court of
first-degree murder and aggravated
discharge of a firearm. He appealed his
conviction to the Illinois Appellate
Court, which affirmed. He then filed a
petition for leave to appeal with the
Illinois Supreme Court, which was denied.
Bell also filed a pro se petition for
post-conviction relief in the Circuit
Court. This too was denied, and the
Circuit Court’s decision was affirmed on
appeal. The Illinois Supreme Court denied
Bell’s petition for leave to file an
appeal on his petition for post-
conviction relief. Bell then filed
apetition for writ of habeas corpus in
federal district court. After an
evidentiary hearing, the petition was
granted. Respondent Mark Pierson, Warden
of the Hill Correctional Center, appeals.
We reverse.

I.

  On January 19, 1992, Stanley Latham died
of multiple gunshot wounds. It is
undisputed that Bell did the shooting.
But the facts leading up to Latham’s
death are hotly contested. Because a
comparison of the trial evidence and the
habeas evidence presented to the district
court is crucial to this appeal, we set
forth that evidence in some detail.

  At trial, Bell testified that he left
the Chic Rick’s bar on Michigan Avenue in
Chicago around 4:30 to 5:00 a.m. and
stopped to talk to friends. He witnessed
a fight between Latham and another
individual, Lethaniel Hood, and
intervened. Latham hit Bell, who fell to
the ground. Upon standing up, Bell
testified that he saw Latham putting his
hand in his pocket and he claims that he
thought Latham was reaching for a gun. He
therefore drew his gun and pointed it at
Latham. The bar’s security guard told
Bell to be calm, and Bell saw that Latham
had not drawn a gun. Bell then put his
gun away. Because the crowd was
frightened, Bell ran off to put his gun
inside a car. Then, while running, Bell
heard two gunshots, turned around, and
saw Latham standing at the door of
Latham’s car, apparently with a gun
pointed at Bell. Bell fired six times at
Latham, who then drove off. According to
Bell, he only shot at Latham out of fear
for his life.

  Kerry Fortenberry, Demetrius Harper, and
Nicole Boyd, all of whom went out that
night with Latham, tell a different
story. According to Fortenberry, the bar
was closing at 4:30 a.m. and the four of
them departed. Latham and Fortenberry
went to get their cars, which they parked
near the bar; Boyd got into Latham’s car
and Harper got into Fortenberry’s car.
When Boyd went to Fortenberry’s car
toretrieve her coat, Latham walked back
to the bar. Fortenberry testified that
shortly thereafter, Harper saw someone in
a tan coat fall near the entrance to the
bar (apparently Bell), and Fortenberry
then saw Latham running to his car,
chased by three others. Fortenberry
testified that he was parked in front of
Latham and saw Bell shoot Latham as he
attempted to drive away from his parking
space. Fortenberry further testified that
Bell was an arm’s length from Latham when
he shot into the driver’s side window,
that he fired three shots before Latham
had left the parking space, and that he
continued to shoot at the car after it
had left. Fortenberry did not see a gun
in Latham’s car and had not seen Latham
use a gun that evening.

  Demetrius Harper, seated in
Fortenberry’s car, testified that she
looked out the rear window and saw an
individual in a tan trench coat fall.
This individual got up and ran toward
their cars while holding a gun. Latham
ran to his car and got into it. Harper
then saw the man in the trench coat
attempt to open the door to Latham’s car,
and stated that this individual began
shooting when he was unsuccessful at
opening the door. She also testified that
she heard three shots before Latham
pulled away, and that she heard two more
shots and saw Latham’s rear window
shatter after he had driven off. Harper
identified Bell as the individual in the
tan coat from a lineup the following
morning. She also testified that she had
not seen Latham with a gun.

  Nicole Boyd testified that after she
returned with her coat, she got into
Latham’s car. Minutes later, Latham
jumped into the car and tried to pull
away. He was unable to do so immediately
because a car was parked in front of his
car. An individual with a gun came up to
the driver’s side window. Although Boyd
could not see his face, he was wearing a
beige trench coat. Boyd heard gunshots,
felt the car move, and then heard three
additional shots. The car swerved and she
told Latham to stop. Latham responded
that he could not because he had been
shot and asked her to help. Boyd stepped
on the brake and turned off the ignition.
She identified Bell’s gun in court as the
one used by the shooter.

  Another individual, Edward Jackson, was
also at Chic Rick’s with friends that
night. He exited the bar and saw Latham
fighting three men. Latham was hit, and
when he turned around, punched Bell, who
had just walked out of the bar and was
wearing a beige trench coat. Bell fell to
the ground and when he got up he drew a
gun. Bell then aimed the gun at Latham
who threw up his hands, which were empty.
A security guard walked out and told Bell
to calm down. As this happened, Latham
backed away and then started running.
Bell broke free from the guard and ran
after Latham with the gun in his hand.
Jackson then went to meet his friends by
their car. He heard five or six shots but
did not see the shooting.
  Mark McClom, the bar security guard,
testified that he went outside the bar to
break up an argument between Latham,
Bell, and two of Bell’s friends. As he
returned to the bar, he noticed the men
exchange punches. McClom saw Latham hit
Bell, who fell. Bell pulled a gun, and
McClom lowered Bell’s arm. Bell then
aimed his gun at Latham, and Latham put
his hands up. At this point, McClom
grabbed Bell’s arm again. Latham ran
away, and seconds later Bell ran in the
same direction. McClom testified that he
never saw a gun in Latham’s hands, and he
did not see the actual shooting.

  Leon Watson was with Bell and Lethaniel
Hood at the bar that evening. He
testified for the defense that he was
walking toward a pay telephone when he
heard a commotion. Watson saw Latham
punch Bell, who fell. Latham then ran
off. Watson went towards his car with
Hood, and Bell was ahead of him. Watson
testified that he saw Latham leaning into
Latham’s car door "because I saw the car
door open" and heard a man say "he has a
gun." He then heard gunfire and ducked
behind a car, but he did not see who was
firing the gun. He heard seven or eight
more shots, and when he peered around the
corner of the car he saw Bell walking to
wards them.

  Lethaniel Hood testified that he was
standing outside the bar with Bell and
Watson when Latham started a fight with
Hood. Hood testified that Latham
threatened to "bust a cap and ’f’ me up."
Bell got involved, and Latham made the
same threat to Bell. Latham hit Bell in
the nose, and hit him again in the mouth,
at which point Bell fell down. At one
point, Hood fell, and when he got up
Latham was running across the sidewalk
towards the street. Hood, Bell, and
Watson were all behind him. Hood
testified that he heard someone "say he
had a gun" which Hood assumed meant
Latham. Hood started backing up, heard a
couple of gunshots, and "got down." He
heard seven or eight gunshots in total.
Hood stated that he didn’t really see
what had happened; when Latham got to his
car Latham stooped down in the car, then
stood up, after which Hood heard the
shots.

  Richard Bednarek, a Chicago police
officer, was parked a block away when the
shooting occurred. Bednarek testified
that when he approached Latham’s car
after the shooting, he saw that the rear
and driver’s side rear door windows were
shattered, and the driver’s side window
was "spiderwebbed" with cracks. Bednarek
also testified that Latham had nothing in
his hands, and a vehicle search produced
no weapons. When Bednarek realized that
Latham was "in a lifeless state," he and
another officer removed Latham from the
car. At that time, Bednarek did not
observe or feel a weapon on Latham’s
body. Although Latham was taken to the
hospital, he died that morning.

  Chicago police officer Raynor Ricks and
his partner, John Butler, searched
Latham’s car, and they also found no
weapons. Ricks testified that both door
windows on the driver’s side of the car
as well as the rear window were broken.
There were bullet holes in the driver’s
side and left passenger’s rear doors, and
there was also a bullet hole in the roof
and in the deck between the rear window
and back seat. Shell casings from a gun
different from Bell’s were apparently
found on the scene.
  Sergeant Steven Sherwin testified that
when Bell came into the police station
after the shooting, Bell told him the man
he shot pulled a gun first and fired
several shots. According to Sherwin, Bell
said he then drew his gun and shot back.
It was stipulated that Sherwin would
testify that Bell turned over a .357
caliber six-shot revolver after
theshooting.

  Doctor Edmond Donoghue performed an
autopsy on Latham. Donoghue testified
that there was an entrance wound on the
left side of Latham’s back, 19.2 inches
beneath the top of the head and 4.7
inches to the left of the midline. There
was another entrance wound on the left
side of the chest, 21.7 inches beneath
the top of the head, in the mid-axillary
line (which Donoghue testified is an
imaginary vertical line drawn through the
center of the armpit). There was also an
entrance wound on the left lateral chest,
more to the front of the body, in the
interior axillary line (an imaginary line
from the front of the armpit). This was
an atypical gunshot wound, which Donoghue
testified is "caused when a bullet
strikes the body in other than its nose-
on trajectory, and one of the most common
reasons . . . is that the bullet had
struck an intermediate target before
entering the body." There was an
additional entrance wound in the back of
the left arm which passed all the way
through the arm. Donoghue testified that
this bullet may have caused the atypical
wound in Latham’s chest. Finally,
Donoghue found evidence of an old, prior
gunshot wound in Latham’s back.

  Bell was charged with two counts of
first-degree murder and two counts of
aggravated discharge of a firearm. He
pleaded not guilty and waived his right
to a jury trial. On April 13, 1993, Judge
Joseph Urso found Bell guilty beyond a
reasonable doubt of first-degree murder
and aggravated discharge of a firearm.
The trial court also found that Bell did
not act in self-defense. Bell received
concurrent sentences of 28 years for the
murder charge and 15 years for the
aggravated discharge of a firearm. Bell
appealed to the Illinois Appellate Court,
claiming that the evidence was
insufficient to establish guilt beyond a
reasonable doubt and that his sentence
was excessive. The Illinois Appellate
Court affirmed his conviction and
sentence. The Illinois Supreme Court
denied his petition for leave to appeal.
Bell filed a pro se petition for post-
conviction relief, alleging ineffective
assistance of counsel, an excessive
sentence, and violation of his Sixth
Amendment right to confront witnesses.
The petition was dismissed, and Bell
appealed the dismissal to the Illinois
Appellate Court. The Illinois Appellate
Court affirmed, and Bell filed a petition
for leave to appeal with the Illinois
Supreme Court. The petition was denied on
October 28, 1998.

  On October 1, 1999, Bell filed a
petition for writ of habeas corpus in
federal district court. On December 22,
1999, Bell filed an amended petition,
claiming he was denied the effective
assistance of counsel because: 1) counsel
failed to conduct a reasonable pre-trial
investigation; 2) counsel failed to
subject the prosecution’s case to
meaningful adversarial testing; and 3)
counsel failed to adequately present a
defense.

  The district court held an evidentiary
hearing, and found that Bell’s mother had
given Bell’s attorney the name of an
eyewitness, Anthony Stevens, who would
testify that Bell and Latham were both
shooting at each other. Stevens had not
been drinking or using any drugs on the
night of the shooting, and although
Stevens knew Bell casually as a neighbor,
they were not close friends.

  Stevens testified before the district
court that he was double-parked about 40
feet southeast of the entrance to Chic
Rick’s. While waiting for a friend in his
car, Stevens heard shots to his left,
behind his car. According to Stevens,
there were six to eight shots, and the
shots made different sounds, as if they
came from two guns. When he turned toward
the direction of the shots, he saw two
men, each with his right arm extended and
pointing a gun at the other man in a
firing posture. A few seconds later
Stevens decided that he "didn’t want to
be there," and drove home.

  Stevens testified that he subsequently
saw a television report on the incident,
and the account identified Bell. Because
the news account described Bell as
shooting Latham while he was sitting in
his car (while Stevens had seen both men
shooting at each other), he went to
Bell’s mother and gave her his name and
address.

  Stevens had not testified at trial. The
district court determined that Bell’s
attorney had failed to get in contact
with Stevens, and that the attorney made
insufficient efforts to find Stevens. The
district court also held that the
newevidence provided by Stevens was
credible, and that it would result in a
fundamental miscarriage of justice if
Bell’s conviction were to stand unless it
were the product of a fair trial
including this new evidence. Accordingly,
the district court considered the merits
of Bell’s ineffective assistance of
counsel claim under Strickland v.
Washington, 466 U.S. 668 (1984), and
concluded on that basis that the writ of
habeas corpus should be granted. The
government appeals.

II.

  Bell’s petition for habeas review was
filed on October 1, 1999, and it
therefore is reviewed pursuant to the
regulations of the Antiterrorism and
Effective Death Penalty Act of 1996
("AEDPA"). See Lindh v. Murphy, 521 U.S.
320, 322-23 (1997). The AEDPA amended the
habeas requirements under 28 U.S.C. sec.
2254, and authorizes issuance of the writ
only if the petitioner has exhausted all
available state remedies. See Rodriguez
v. Scillia, 193 F.3d 913, 916 (7th Cir.
1999). We review the district court’s
legal holdings de novo, and its factual
findings for clear error. See Foster v.
Schomig, 223 F.3d 626, 634 n.4 (7th Cir.
2000).

  As noted, Bell claims he was denied the
effective assistance of counsel because:
1) counsel failed to conduct a reasonable
pre-trial investigation; 2) counsel
failed to subject the prosecution’s case
to meaningful adversarial testing; and 3)
counsel failed to adequately present a
defense. Respondent argued before the
district court that Bell’s claims were
procedurally defaulted. Generally,
federal courts may only review a
procedurally defaulted claim "if the
petition shows cause for failure to raise
[the defaulted claim] at the appropriate
time and actual prejudice which resulted
from such failure." See Rodriguez, 193
F.3d at 917 (citing Wainwright v. Sykes,
433 U.S. 72, 91 (1977)). This rule is
grounded in concerns of comity and
federalism. See Coleman v. Thompson, 501
U.S. 722, 731 (1991). Absent such a
showing, the defaulted claim is
reviewable only where a refusal to
consider it would result in a fundamental
miscarriage of justice. See Rodriguez,
193 F.3d at 917.

  In this case, the district court did not
decide whether any of Bell’s claims were
procedurally defaulted, nor did it
address whether cause and prejudice were
shown (presumably because Bell never
attempted to show cause and prejudice).
The district court bypassed these
questions, instead resting its entire
holding on the grounds that a fundamental
miscarriage of justice would result if
Bell’s claims were not considered, based
on Stevens’ testimony. Accordingly,
before proceeding to the question of
procedural default, we first review the
district court’s decision.

  Respondent claims the district court
erred in concluding that a fundamental
miscarriage of justice would result if it
did not consider Bell’s Strickland
argument. The controlling case in this
context is the Supreme Court’s decision
in Schlup v. Delo, 513 U.S. 298 (1995).
Under Schlup, in order for a case to fall
under the "narrow class of cases" which
implicates a fundamental miscarriage of
justice, the petitioner must show that "a
constitutional violation has probably
resulted in the conviction of one who is
actually innocent." Schlup, 513 U.S. at
315, 327. This means the petitioner must
show that "it is more likely than not
that no reasonable juror would have
convicted him in light of . . . new
evidence." Id. at 327 (quotation
omitted). Only then can the petitioner’s
constitutional claims be considered.

  As the Schlup Court explained, the
petitioner’s claim of actual innocence is
"’not itself a constitutional claim, but
instead a gateway through which a habeas
petitioner must pass to have his
otherwise barred constitutional
claimconsidered on the merits.’" Id. at
315 (quoting Herrera v. Collins, 506 U.S.
390, 404 (1993)). Accordingly, without
new evidence of innocence, even a
meritorious constitutional claim is not
sufficient to allow a habeas court to
reach the merits of a procedurally
defaulted claim. See id. at 316.

  The determination of whether a
petitioner established a probability that
no reasonable juror would have convicted
him in light of new evidence is a mixed
question of law and fact. See O’Dell v.
Netherland, 95 F.3d 1214, 1249 (4th Cir.
1996) (en banc), aff’d on other grounds,
521 U.S. 151 (1997). Unlike the legal
question of whether no reasonable juror
could have convicted the defendant, see,
e.g., Jackson v. Virginia, 443 U.S. 307
(1979), Schlup requires an analysis of
whether no reasonable juror would have
convicted, and Schlup requires the
district court to consider the
credibility of the petitioner’s new
evidence. Accordingly, a district court
applying Schlup must make factual
findings. However, "the district court is
in no better position than an appellate
court to then add that new evidence to
the evidence that was presented at trial
or to speculate as to the likelihood that
a reasonable juror would convict based on
the sum of all the evidence." O’Dell at
1250. Thus, as a mixed question of law
and fact, the Schlup probability
determination that no reasonable juror
would convict is reviewed de novo. See
id.; Ellsworth v. Levenhagen, 248 F.3d
634, 638 (7th Cir. 2001) (mixed questions
of law and fact are reviewed de novo).

  The district court, in concluding that
Bell’s new evidence created a probability
that no juror would convict, stated that
its decision "takes into account the
obligation of the prosecution to prove
beyond a reasonable doubt that Bell did
not act in self-defense." See United
States ex rel. Bell v. Pierson, 2000 WL
1810235, *6 (N.D.Ill. 2000) (emphasis in
original). In Illinois, to establish
self-defense the defendant must provide
evidence that: 1) force had been
threatened against the defendant; 2) the
defendant was not the aggressor; 3) the
danger of harm was imminent; 4) the force
threatened was unlawful; 5) the defendant
actually believed that the danger
existed, that the use of force was
necessary to avert the danger, and that
the kind and amount of force actually
used was necessary; and 6) the
defendant’s beliefs were reasonable. See
People v. Morgan, 719 N.E.2d 681, 700
(Ill. 1999). The state may then defeat
the claim by proving beyond a reasonable
doubt that one of the elements of self-
defense is not met. See People v.
Peterson, 652 N.E.2d 1252, 1261 (Ill.
App. Ct. 1995).

  Applying this Illinois law, however,
does not show a probability that "no
juror, acting reasonably, would have
voted to find [the petitioner] guilty
beyond a reasonable doubt." See id.
Indeed, the standard for finding a funda
mental miscarriage of justice assures
that the petitioner’s case must be
"extraordinary," and requires "a stronger
showing than that needed to establish
prejudice" under Strickland./1 See
Schlup, 513 U.S. at 327 n.45. This case
is not the extraordinary one.

  Stevens’ testimony, no matter how
credible (and we defer to the district
court’s finding that it was "totally
credible"), suffers from a fatal
deficiency. His testimony offers a
momentary window onto a course of events,
a perspective that is both too late and
too early to adequately counter the
overwhelming evidence that Bell did not
act in self-defense, when reviewed under
the standard set forth in Schlup. Stevens
did not see the events leading up to the
shootout he describes, and he did not see
the events afterward./2

  Significantly, the district court found
Stevens’ testimony credible on the issue
of whether Latham was armed. Bell notes
that the trial court, in finding him
guilty, emphasized that there was no
evidence to support his claim that Latham
had a gun. This statement must be
compared with the full text of the trial
court’s credibility findings, which
stated:

The court is convinced that the State has
proven the defendant guilty beyond a
reasonable doubt. The court is also
convinced that the State has proven
beyond a reasonable doubt that the
defendant Theodore Bell did not act in
self-defense in this case. I do not
believe that the evidence shows in anyway
[sic] that the deceased was armed with a
gun or any weapon at thee [sic] time of
the shooting. I also believe that the
evidence shows that Mr. Bell did not act
in any unreasonable belief that the
defendant was in fact armed. The court
believes that this in fact occurred very
closely as the prosecution witnesses
attested to.

R.20-3, F-55. As the record shows, and
the trial court’s findings indicate,
Latham’s unarmed status was one ground
for rejecting the self-defense argument.
But it was not the only ground presented
by the evidence. It is crucial that the
state court found the prosecution
witnesses credible generally.

  Stevens’ habeas testimony may conflict
with the testimony of those witnesses who
did not see Latham with a gun, but it
does not address the initiation of the
shooting, and it does not conflict with
the abundant testimony and evidence
(evidence which, except for Bell’s own
statements, is uncontroverted) that at
some point Bell chased the victim and
shot him at close range as he sat in his
car.

  There was ample evidence that Bell was
the aggressor, pulling his gun first and,
according to almost every witness
(including Bell’s friends), chasing after
Latham when he ran away. And there was
ample evidence that Bell shot Latham
while Latham was seated in his car, when
he no longer posed a threat. Fortenberry,
Harper, and Boyd all testified that Bell
shot Latham at close range in his car as
Latham attempted to leave his parking
space and drive off. This testimony was
found credible by the trial court, and it
is supported by the evidence of Latham’s
gunshot wounds and the broken car
windows.

  The district court’s probability
finding, accordingly, must be reversed.
It is not probable on this record that no
reasonable juror would have found Bell
guilty beyond a reasonable doubt if it
found based on Stevens’ testimony that
Latham was armed, or at one point even
shooting back./3 Since credible
prosecution witnesses testified that Bell
chased Latham and shot him while Latham
was seated in his car, and Stevens adds
nothing new on this subject, there is a
likelihood that a reasonable jury would
reject the self-defense argument.
Credible new testimony disagreeing with
credible testimony by the prosecution
witnesses on one point--Latham’s
possession or use of a gun--does not
create a probability that no reasonable
juror would accept the prosecution
witnesses’ testimony regarding subsequent
events. Bell has not shown a probability
that no juror would find beyond a
reasonable doubt that Bell met the final
elements of self-defense under Illinois
law--i.e., that Bell held a reasonable
belief that lethal force was necessary to
avert imminent danger from Latham.
Therefore, Bell has not shown a
probability that no juror would convict
in light of the new evidence.
Accordingly, because Bell’s petition does
not meet the extraordinary circumstances
necessary for there to be a "fundamental
miscarriage of justice," we may not reach
his constitutional claims if they
weredefaulted.

  Because the district court never decided
whether habeas relief would be available
if Bell had not met the high standard for
a fundamental miscarriage of justice, our
holding above does not yet resolve this
case. The government contends that the
district court’s opinion impliedly held
that all of petitioner’s claims of
ineffective assistance of counsel were
procedurally defaulted because the court
proceeded under the fundamental
miscarriage of justice standard. However,
on December 22, 1999, the district court
issued an order which stated that "it
would seem that the only claims that do
not face rejection on procedural default
grounds are those included in Petition
para.para.II.A.1 and II.C.1."/4 Then, on
August 9, 2000, the district court issued
an order requiring an evidentiary hearing
which noted that "Bell’s claim of self-
defense, if established, would equate to
his actual innocence under Illinois law,
thus bypassing issues of procedural
default." Finally, the district court’s
opinion itself only referred to the
procedural default as "asserted." These
statements all suggest the court, given
its finding of a fundamental miscarriage
of justice, believed a determination of
whether a procedural default occurred was
unnecessary, and not that the court
impliedly ruled against Bell on the
question of procedural default.

  On appeal, the issue of whether Bell
procedurally defaulted his claims was not
briefed by the parties. But the parties
briefed the issue before the district
court, which then indicated in its order
of December 22, 1999 that the majority of
Bell’s claims appeared to have been
defaulted. A review of the record
indicates that the district court’s
impression was correct./5

  As noted previously, a procedural
default bars federal habeas review unless
there is a showing of cause and prejudice
or a fundamental miscarriage of justice
would result. In this case, the
exhaustion doctrine is fatal to most of
Bell’s claims. "[T]he exhaustion doctrine
is designed to give the state courts a
full and fair opportunity to resolve
federal constitutional claims before
those claims are presented to the federal
courts." O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999). The petitioner must
"fairly present" the federal issue to the
state courts as a precondition to
exhaustion. See Verdin v. O’Leary, 972
F.2d 1467, 1472-73 (7th Cir. 1992).

  Bell never argued any theory of
ineffective assistance of counsel on
direct appeal in state court, and his
state court petition for post-conviction
relief, as well as his post-conviction
appeals, only raised ineffectiveness
claims based on failure to investigate
and present alibi witnesses. Accordingly,
as his new claims, listed above in
footnote five, are independent of the
claims he raised in state court, they are
defaulted. As we have noted before, "[i]t
is not sufficient that [the petitioner]
alleged various other errors by counsel;
to set forth a claim of ineffective
assistance, a petitioner ’must identify
the specific acts or omissions of counsel
that form the basis for his claim of
ineffective assistance.’" Momient-El v.
DeTella, 118 F.3d 535, 541 (7th Cir.
1997). The state courts were never given
an opportunity to consider most of Bell’s
claims of ineffectiveness of counsel,
either on direct appeal or in state post-
conviction proceedings. Procedural
default accordingly bars habeas review of
his new claims./6

  The situation is different respecting
Bell’s claim of ineffectiveness based on
his failure to present Anthony Stevens’
testimony. This claim of ineffective
assistance was clearly presented in state
court. The government argued in district
court that this claim was defaulted based
on independent and adequate state
grounds, however. We disagree.

  "We will not review a question of
federal law decided by a state court if
that decision rests on state law grounds
that are independent of the federal
question and adequate to support the
judgment." Franklin v. Gilmore, 188 F.3d
877, 881 (7th Cir. 1999). In order for
the state court decision to be
independent, the court must have
"actually . . . relied on the procedural
bar as an independent basis for
itsdisposition of the case." Harris v.
Reed, 489 U.S. 255, 261, 62 (1989)
(quoting Caldwell v. Mississippi, 472
U.S. 320, 327 (1985)). "Whether a ground
is independent depends on state law . . .
therefore, in order for the state
judgment to bar federal habeas review,
the last state court to render a judgment
in the case must have ’clearly and
expressly state[d] that its judgment
rests on a state procedural bar.’" Thomas
v. McCaughtry, 201 F.3d 995, 1000 (7th
Cir. 2000) (citation omitted) (quoting
Jenkins v. Nelson, 157 F.3d 485, 491 (7th
Cir. 1998)). In addition, "[s]tate court
decisions are not adequate to bar federal
habeas review unless they rest upon
firmly established and regularly followed
state practice." Franklin, 188 F.3d at
882 (citing James v. Kentucky, 466 U.S.
341, 348-51 (1984)).

  Here, in post-conviction proceedings,
the Illinois appellate court’s decision
did expressly reference res judicata and
waiver, the procedural bar at issue.
However, the court did not explicitly
apply this Illinois procedural bar to the
facts of Bell’s petition. Rather, it
proceeded to discuss whether Stevens’
claim that Latham was armed could merit
relief. The court concluded that Bell
failed to show sufficient evidence to
succeed under Strickland, and affirmed
the state trial court’s order denying an
evidentiary hearing and post-conviction
relief. The court concluded with the
general statement, "For these reasons the
order of the circuit court of Cook County
is affirmed."

  There is no relevant distinction between
these facts and the facts in Harris. In
that case, the Supreme Court addressed an
appellate court decision which referred
to a state procedural bar (waiver) and
then "went on to consider and reject
petitioner’s ineffective-assistance claim
on its merits." Harris, 489 U.S. at 258.
The Court explained that the state court
must make a plain statement that it
relies on an independent and adequate
state ground, and concluded that the
appellate court’s decision "falls short
of an explicit reliance on a state-law
ground." See id. at 266. Accordingly, the
Harris Court determined that habeas
review was not barred. We reach the same
conclusion here.

  Since the claim of ineffective
assistance based on counsel’s failure to
contact Stevens and present his testimony
was not procedurally defaulted, it may be
reviewed under the AEDPA.

  The relevant portion of the AEDPA
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-- . . .
resulted in a decision that was contrary
to, or involved an unreasonable
application of, clearly established
Federal law, as determined by the Supreme
Court of the United States; . . . .

28 U.S.C. sec. 2254(d)(1).

  As the Supreme Court has explained, a
state court decision is "contrary to"
clearly established Supreme Court
precedent "if the state court applies a
rule that contradicts the governing law
set forth in [Supreme Court] cases," or
"if the state court confronts a set of
facts that are materially
indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives
at a result different from [Supreme
Court] precedent." Williams v. Taylor,
529 U.S. 362, 405 (2000). A state court
decision is an "unreasonable application"
of clearly established Supreme Court
precedent when "the state court
identifies the correct governing legal
rule from [the Supreme Court’s] cases but
unreasonably applies it to the facts of
the particular state prisoner’s case," or
"the state court either unreasonably
extends a legal principle from [Supreme
Court] precedent to a new context where
it should not apply or unreasonably
refuses to extend that principle to a new
context where it should apply." Id. at
407.

  If the case falls under the "contrary
to" clause of sec. 2254(d)(1), then we
review the state court decision de novo
to decide what is clearly established law
as determined by the Supreme Court and
whether the state court decision was
"contrary to" that Supreme Court
precedent. See Denny v. Gudmanson, 252
F.3d 896, 900 (7th Cir. 2001). If, on the
other hand, the case falls under the
"unreasonable application" clause, then
we defer to a reasonable state court
decision. See id. Moreover, state court
factual findings that are reasonably
based on the record are presumed correct.
See 28 U.S.C. sec. 2254(e)(1); Gudmanson,
252 F.3d at 900.

  Where a state court has denied a
Strickland claim on the merits, under the
AEDPA we generally review for clear
error. As we noted in Holman v Gilmore,
"Strickland calls for inquiry into
degrees; it is a balancing rather than a
bright-line approach . . . . This means
that only a clear error in applying
Strickland’s standard would support a
writ of habeas corpus." 126 F.3d 876,
881-82 (7th Cir. 1997). This is because
"Strickland builds in an element of
deference to counsel’s choices in
conducting the litigation [and] sec.
2254(d)(1) adds a layer of respect for a
state court’s application of the legal
standard." Id.

  In support of his petition for post-
conviction relief, Bell presented an
affidavit from Anthony Stevens testifying
that he "saw Stanley Latham holding a gun
in his hand at the time of the shooting
between Stanley Latham and Theodore
Bell." He also presented an affidavit
from his ex-girlfriend, Lillian Winfrey,
who claimed to have a friend named
"Sharon" who told her that Latham had
pulled a gun on Bell./7 The trial court
dismissed the claim of ineffective
assistance as frivolous and denied an
evidentiary hearing. On appeal from the
denial of post-conviction relief, the
Illinois appellate court applied the
second prong of the Strickland test and
affirmed. The appellate court summarized
the compelling evidence of guilt, then
concluded, "[t]he affidavits, even if
taken as true, do not refute the fact
that after the alleged altercation was
terminated by a security guard and the
victim was attempting to flee the area,
defendant broke free from the guard,
pursued the victim with gun drawn and
shot him at close range." Accordingly,
the court concluded that the outcome of
the trial would not have been different
even if the proposed witnesses had
testified.

  The Illinois appellate court’s reasoning
respecting Stevens’ affidavit, which
applies equally to Stevens’ habeas
testimony, is not clearly erroneous. Even
if Latham shot at Bell at some point in
the altercation, Latham could not still
be considered a danger with his hands on
the steering wheel as he tried to drive
away. Flight is not generally confused
with aggression.

  Applying the appropriate deference to
the state court’s application of
Strickland, we conclude that it was not
unreasonable to find that the outcome
would be the same even if the affidavits
from Bell’s alibi witnesses had been
presented at trial. Under Strickland,
there must be a reasonable probability
that, but for the attorney’s error, the
result of the proceeding would have been
different. The government presented
several witnesses--credible ones
according to the trial court--all of whom
saw Bell shoot Latham as he sat in his
car, attempting to drive away. Indeed,
themedical evidence demonstrated that
Latham had been shot in the back, and the
broken windows on the car further
supported the testimony that Latham was
shot at as he tried to escape. The
"spiderweb" bullet holes in the driver’s
side window would indicate the window was
rolled up, so Latham couldn’t be shooting
out the window as he drove. The shattered
rear window would indicate Bell was still
shooting as the car left the scene. It
was not unreasonable for the state courts
to determine that the outcome would
remain unchanged based on this
uncontradicted (except by Bell’s own
testimony) evidence that Bell shot Latham
in cold blood when he no longer posed a
threat. It was certainly not clear error.

III.

  In sum, the petitioner did not meet his
burden of showing the requisite
probability that no reasonable juror
would convict under Schlup v. Delo. In
light of the credible evidence of guilt
before the Illinois trial court, the
district court’s finding of a fundamental
miscarriage of justice was erroneous. As
a result, the majority of Bell’s habeas
claims cannot be reviewed, since they
were procedurally defaulted. In addition,
the state courts’ application of Supreme
Court precedent to Bell’s remaining
claims was not unreasonable. Therefore we
REVERSE the district court, and direct it
to enter an order denying the habeas
petition.

FOOTNOTES

/1 Under Strickland, the petitioner must show that
his attorney’s performance fell below an objec-
tive standard of reasonableness, and that his
attorney’s performance actually prejudiced him.
See Strickland, 466 U.S. at 687. The test for
prejudice requires the petitioner to show that
there is a reasonable probability that, but for
the attorney’s error, the result of the proceed-
ing would have been different. See id. at 694.

/2 The district court also noted that Bell’s origi-
nal counsel stated that evidence that Latham was
armed "would have made all the difference in the
world." See Bell, 2000 WL 1810235 at *5. The
district court did not appear to place signifi-
cant weight on this testimony, however, and it is
not apparent how this subjective and general
opinion could carry much weight in light of the
evidence before the trial court and the trial
court’s findings.

/3 Bell claims that the district court also identi-
fied seven additional items of "new" evidence to
support its holding. The district court, however,
expressly stated that its findings in this regard
did not support a determination of "actual inno-
cence." We agree. This evidence was used to
support the district court’s Strickland analysis.
As the district court explained, "[d]uring the
trial itself Thomas committed a number of errors
of greater or lesser levels of seriousness, whose
significance was not alone of constitutional
dimension but whose cumulative effect added
significantly to the impact of the fatal flaw
regarding the absence of eyewitness Stevens’
testimony." See Bell, 2000 WL 1810235 at *5. The
allegedly new evidence of failure by Bell’s
counsel to properly cross-examine witnesses or
make all of the available legal arguments does
not qualify as new evidence of "actual innocence"
sufficient for Bell to have his constitutional
claim considered in the context of a procedural
default.

/4 The claims which the district court order sug-
gested were not procedurally defaulted were
claims of ineffective assistance based on: fail-
ure to conduct adequate trial preparation and
investigation by not contacting alibi witnesses;
and failure to present an adequate defense by not
calling those alibi witnesses. Anthony Stevens
was one such witness.

/5 Bell never presented the majority of his habeas
claims to the state courts. It is clear he never
argued ineffective assistance of counsel based
on: counsel’s failure to properly prepare wit-
nesses before their testimony; failure to cross-
examine and argue that Nicole Boyd, the passenger
in Latham’s car, was not searched by the police
at the scene; failure to argue that the 9 mm
shells found at the scene were never dusted for
Latham’s fingerprints; failure to use the toxi-
cology report which showed Latham’s blood alcohol
level; failure to impeach the prosecution’s
theory that Latham was sitting in his car when he
was shot by eliciting testimony that would indi-
cate that the bullets Bell used should have
shattered the car window; failure to elicit
testimony from Dr. Donoghue that Latham was shot
in the chest; failure to elicit testimony from
Bell that he did not know there was a passenger
in Latham’s car; failure to argue that any shots
fired in the direction of Nicole Boyd, Latham’s
passenger, were fired with the intent of self-
defense against Latham; failure to argue that the
results of paraffin tests showed both Bell’s and
Latham’s hands were not positive for gunpowder
residue; failure to argue for second-degree
murder because Latham struck Bell twice prior to
the shooting; failure to argue for second-degree
murder based on the theory that even if the judge
found Bell’s belief that Latham had a gun and was
shooting it at him was unreasonable, this would
still reduce the level of the crime; failure to
elicit testimony from Bell and other witnesses
that someone yelled "He’s got a gun," referring
to Latham; and failure to argue that Dr.
Donoghue’s testimony that the trajectory of two
of the bullets which struck Latham was horizon-
tal, which would impeach the theory that Latham
was seated in his car when he was shot, while
Bell was standing.

/6 As the district court noted, Bell made no effort
to argue cause and prejudice in order to avoid
this procedural bar. His entire argument was that
the procedural default could be bypassed based on
Schlup. As a result, a cause and prejudice argu-
ment was waived. See Weber v. Murphy, 15 F.3d
691, 695 (7th Cir. 1993), cert. denied, 511 U.S.
1097 (1994).

/7 Bell’s federal habeas petition presents a third
affidavit, from Greg Reed. This individual alleg-
edly would have testified to Latham’s affiliation
with the Gangsta Disciples and his propensity
towards violence. Although this affidavit was
never presented in state court, we need not
decide whether a claim based on Reed’s testimony
was defaulted, since his affidavit would not
alter our analysis below.
