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

No. 05-3712
ANTOINE TOLIVER,
                                                 Plaintiff-Appellee,
                                 v.

DONALD HULICK,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 00 C 7534—Joan B. Gottschall, Judge.
                          ____________
  ARGUED OCTOBER 20, 2006—DECIDED DECEMBER 4, 2006
                    ____________


 Before EASTERBROOK, Chief Judge, and BAUER and
EVANS, Circuit Judges.
  EVANS, Circuit Judge. Antoine Toliver was convicted
of first degree murder and attempted first degree murder
after a jury trial in the Circuit Court of Cook County. He
was sentenced to consecutive prison terms of 40 and 6
years. The Illinois Appellate Court affirmed his conviction,
and the Illinois Supreme Court denied leave to appeal. His
subsequent petition for a writ of habeas corpus, filed in
the District Court for the Northern District of Illinois,
was granted based on one of the issues he raised: that his
constitutional right to confront the witnesses against him
was violated when he was not allowed to cross-examine
2                                                No. 05-3712

the only eyewitness against him regarding his immigra-
tion status. The State of Illinois has appealed.
  The witness is Samir Younes, who was born in Morocco.
He was employed at the L-Town Food and Liquor Store on
North Avenue in Chicago. His duties included opening the
door for customers and watching for shoplifters. Younes
testified that on the night in question he witnessed shoot-
ings, which resulted in the death of one man and the
wounding of another. He said he opened the door of the
store for the soon-to-be shooting victims and then a bit later
for Toliver and another man—both when they entered and
when they left the store. After the men were all outside the
store, Younes saw Toliver pull a gun, point it at the victims,
and fire about five shots. One man fell to the ground and
another managed to run off. Toliver and another man got in
a car and drove off. Frightened, Younes locked the door and
went to the back of the store. While there, he heard two
more shots. The police arrived about 20 seconds later.
  Initially, when the police questioned Younes about what
he saw, he was uncooperative. But about 6 days later, he
was again at work when Toliver and others came back
into the liquor store. Younes recognized Toliver as the
shooter and contacted Detective Barney Graf, whom Younes
knew because Graf had arrested him on a municipal charge.
Police then arrested Toliver and took him to the station,
where Younes picked him out of a lineup. Ultimately, about
20 hours after Toliver was taken to the station and had
been questioned on and off during that time, he confessed
to the shootings. Toliver was charged, and his first trial
ended in a mistrial.
  Prior to the second trial, the State moved in limine to
prohibit defense counsel from asking Younes about his
immigration status. The prosecutor said his understand-
ing was that Younes was in the country with “a passport
and visa.” In response, defense counsel argued that Younes
No. 05-3712                                                3

was an illegal immigrant whose immigration status was
relevant because, as an illegal, he had a motive to cooperate
with the police to influence them to not report him to what
was then the Immigration and Naturalization Service,
where he could face possible removal from the country.
  To support the argument that Younes was an illegal
immigrant, Toliver provided two letters from the Depart-
ment of Justice. The first letter stated:
      The Immigration and Naturalization Service has
    advised this office that it conducted a search of its
    computerized indices for records regarding the current
    immigration status, work authorization and eligi-
    bility to accept employment for Samir Younes, born
    March 28, 1972, in Morocco. To date, no records have
    been located establishing that this individual has any
    immigration status in the United States.
The second said:
      The above subpoena seeking the records of the
    Immigration and Naturalization Service relating to
    Samir Younes had been referred to this office for a
    determination whether any requested materials can
    be disclosed or testimony authorized under the fed-
    eral regulations applicable to such subpoenas, 28 C.F.R.
    sec. 16.21, et seq.
      As a result of your subpoena, the Immigration and
    Naturalization Service was requested to check its
    records to determine whether it had a file relating to
    Samir Younes, date of birth March 28, 1972, birth
    place, Morocco. The INS has advised this office that
    it cannot locate any records responsive to your sub-
    poena under the information provided.
The trial judge was not convinced that the letters pro-
vided a good-faith basis to conclude Younes was an illegal
alien. The judge pointed out that if Younes were asked
4                                                 No. 05-3712

about his status, counsel would be unable to prove or
disprove what he said. Counsel agreed that Younes would
have to be taken at his word. In the end, the judge did not
allow questioning as to Younes’ status in an attempt to
impeach his credibility. As we said, the state appellate
court upheld the exclusion.
  Having exhausted his state remedies, Toliver filed this
petition for a writ of habeas corpus in federal court. In
ruling on the petition, the district judge concluded that
it was a violation of Toliver’s confrontation rights to
preclude asking Younes about his status and that the error
was not harmless. She granted the petition. On the State’s
appeal, we review the district court’s decision de novo.
Barrow v. Uchtman, 398 F.3d 597 (7th Cir. 2005).
  Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), a habeas petitioner is entitled to a writ of
habeas corpus when the decision of the state court is either
“contrary to” or “an unreasonable application of” clearly
established federal law as determined by the United States
Supreme Court. 28 U.S.C. § 2254(d)(1); Williams v. Taylor,
529 U.S. 362 (2000). A state court’s decision is “contrary to”
clearly established Supreme Court precedent “if the state
court arrives at a conclusion opposite to that reached by
this Court on a question of law or if the state court decides
a case differently than this Court has on a set of materially
indistinguishable facts.” Williams, at 413. An unreasonable
application of clearly established law occurs “if the state
court identifies the correct governing legal principle . . . but
unreasonably applies that principle to the facts of the
prisoner’s case.” Williams, at 413. To entitle a petitioner to
relief, the state court’s decision must be “objectively unrea-
sonable.” Lockyer v. Andrade, 538 U.S. 63, 76 (2003).
   In this case, the state appellate court correctly identi-
fied the general principle governing this case; that is, that a
defendant has a constitutional right to confront
No. 05-3712                                                5

the witnesses against him. Douglas v. Alabama, 380 U.S.
415 (1965); Davis v. Alaska, 415 U.S. 308, 316 (1974). The
issue is whether the state court decision involves an
unreasonable application of the principle. When, as here,
the case falls under the “unreasonable application” prong of
the analysis, it involves a mixed question of law and fact,
and we defer to a reasonable state court decision. Anderson
v. Cowan, 227 F.3d 893 (7th Cir. 2000).
   Deference, however, does not prevent us from observing
that what happened in the state trial court raises a perplex-
ing question. The State said that Younes had a passport
and visa. Why, then, did it object to inquiry as to his
immigration status? The thrust of the argument seems to
be that asking Younes about his status was simply an
attempt to smear him as, to use the prosecutor’s words, an
“illegal foreigner.” But there would have been ways to
inquire as to Younes’ status without, in the first instance,
accusing him of being an illegal alien. The prosecution had
already asked Younes where he was from and he said
Morocco. Defense counsel could simply have asked what his
residency status was in the United States. If he said he was
a citizen or a visitor with a passport or a visa, that would
have been the end of the matter. If he had said he was an
illegal immigrant, then his status would have been out in
the open and could have been used to impeach his credibil-
ity. There seems little legitimate reason to have restricted
the inquiry and absolutely no reason not to find the answer
to the question outside the presence of the jury. As we
discovered, to our surprise at oral argument, no one knows
for sure even at this time what Younes’ status was. We
asked at oral argument whether Toliver’s lawyer proposed
to question Younes on voir dire, and the advocates did not
agree on the answer. After argument, counsel for Illinois
filed a letter reporting “that there is nothing in the record
showing that petitioner’s counsel even asked the trial judge
for the opportunity to question Younes outside the presence
6                                                No. 05-3712

of the jury regarding his immigration status.” We gather
(from the lack of a response from Toliver’s current legal
team) that this is correct. So any suggestion that the state
trial judge dropped the ball on this point is off the mark.
   Though it has no relevance to the constitutional issue
before us, we note that the Illinois Appellate Court—and
counsel for the State at oral argument—said that it violates
Illinois law to ask a question about immigration status
unless the witness is, in fact, an illegal alien. For this
proposition, the appellate court relied on three cases: People
v. Clamuextle, 626 N.E.2d 741 (Ill. App. 1994); People v.
Turcios, 593 N.E.2d 907 (Ill. App. 1992); and People v.
Austin, 463 N.E.2d 444, 453 (Ill. App. 1984). We have
trouble reading the cases so broadly. They make clear that
status as a illegal alien can be used to argue bias on the
part of the witness. What is less clear is whether one can
ask the questions which would establish illegal status. In
Austin, the court seemed to imply that one could ask the
questions of any witness and then argue bias as to those
witnesses who were illegal:
    Thus, we believe defendant was entitled to present
    to the jury the residency status of the State’s wit-
    nesses and argue bias if all or some of these witnesses
    were in fact illegal aliens.
Austin, at 452. Nonetheless, it was on the basis of Illinois
cases that the Illinois Appellate Court upheld the exclusion
of the evidence.
  Turning back to the constitutional analysis (which is
the only relevant question before us), we note that what the
state court did, after identifying the correct principles of
law on confrontation, was to apply state law as a basis for
exclusion of the evidence. The question for us is whether the
analysis resulted in an application that was unreasonable
under Supreme Court precedent.
No. 05-3712                                                  7

  The right to cross-examination is, of course, not without
limitation. It can be limited if it would produce marginally
relevant information or entail the harassment of a witness:
    [T]rial judges retain wide latitude insofar as the Con-
    frontation Clause is concerned to impose reasonable
    limits on such cross-examination based on concerns
    about, among other things, harassment, prejudice,
    confusion of the issues, the witness’ safety, or interroga-
    tion that is repetitive or only marginally relevant.
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
   Toliver argues that the letters showing that the INS had
no record of Younes proved that he was an illegal immi-
grant and that therefore precluding the testimony regarding
Younes’ status violated Toliver’s rights. We do not agree
that the only plausible inference from the letters is that
Younes was in the country illegally. An alternate explana-
tion is that the INS files do not include information on
United States citizens. And many United States citizens are
born abroad. That could have been the case with Younes.
Other reasons might well explain why the records from the
INS didn’t establish that Younes was in the country
illegally. One reason may be that the search was requested
by birth date; if Younes was not born on March 28, 1972, or
if the INS filed his records by some other date, the search
would have turned up nothing, but revealed nothing either.
Yet another possibility is that Younes held a visa issued by
the State Department in Morocco. Until a couple of years
ago, the INS did not keep records on aliens who enter with
visas issued abroad (one big reason why the agency also did
not know when these visas expired, and thus did little to
catch and remove aliens who overstayed their authoriza-
tion).
  That said, we observe that it is a close question whether
Toliver’s Sixth Amendment rights were violated. Precluding
the testimony was not wise, not because Younes was shown
8                                               No. 05-3712

to be an illegal immigrant—because he was not—but simply
because it makes no sense under these circumstances not to
allow the question to be asked. But being unwise is not the
same as being unconstitutional. The state appellate court
finding that the limitation on cross-examination was not
error cannot be said to be an unreasonable application of
Supreme Court precedent. The information was, at best,
marginally relevant.
  Additionally, however, even if we were to find that it
was a violation of Toliver’s rights not to be allowed to ask
the question, that would not be the end of the matter. On
collateral review, an error requires reversal only if it “had
substantial and injurious effect or influence in determin-
ing the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,
631 (1993), quoting Kotteakos v. United States, 328 U.S.
750, 776 (1946). See also Aleman v. Sternes, 320 F.3d 687
(7th Cir. 2003). Toliver argues that there was error and it
was not harmless because Younes’ testimony was less than
convincing, the evidence was not strong, a first trial
resulted in a mistrial, and the jury took 8 hours to reach a
verdict in the second trial. These arguments do not support
a conclusion that prohibiting the inquiry was prejudicial to
Toliver.
  Both the mistrial and the length of time the jury took
deliberating have no proper bearing on the issue. United
States v. Hamann, 688 F.2d 507 (7th Cir. 1982); United
States v. Cunningham, 108 F.3d 120 (7th Cir. 1997).
Further, the evidence of guilt was, as the Court found
in Brecht, “if not overwhelming, certainly weighty.” Younes’
testimony was not weak. His failure to cooperate with the
police immediately was explained: he was frightened. When
he saw Toliver again, he called the police and later picked
Toliver out of a lineup. His recounting of the details of the
shooting could certainly have convinced a jury of Toliver’s
guilt.
  Finally, and very importantly, Toliver confessed to the
crime. A confession is strong evidence of guilt. Toliver
No. 05-3712                                                        9

argues that the district judge was correct to conclude that
his confession should be disregarded. She credited Toliver’s
testimony that he was at a neighbor’s house at the time
of the shootings and his claim that he was coerced into
confessing. The problem is that the state trial court held a
suppression hearing regarding the confession and found it
to be admissible. Toliver did not raise the suppression issue
in his direct state appeal. It follows that Toliver’s confes-
sion, on the basis of the present record before us, cannot be
disregarded in a harmless error analysis.
  So we conclude that the failure to allow questions regard-
ing Younes’ immigration status cannot be found to have had
a substantial effect on the verdict. We find that prohibiting
the questions could at best be viewed as no more than
harmless error.
  The district judge limited her analysis to the confronta-
tion issue because she found it to be dispositive. Accord-
ingly, on remand, she will need to consider the remaining
issues raised in Toliver’s petition. One of those issues, of
course, is that Toliver was denied his Sixth Amendment
right to effective assistance by the failure of his counsel, as
he put it in his petition, “to properly present a motion to
suppress the statement made by Petitioner . . . .”1
  The judgment of the district court is REVERSED and the
case REMANDED for further proceedings consistent with this
opinion.




1
  The issue he raised is not quite as the district judge stated.
Toliver is not saying counsel was ineffective for failure to “present
a motion” but for his failure to “properly” present the motion. As
is implicit in the latter statement, counsel, did, in fact, file a
suppression motion—properly or not.
10                                        No. 05-3712

A true Copy:
      Teste:

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




               USCA-02-C-0072—12-4-06
