Jerry Harden v. Phillip A. Kingston

* After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 21, 2005*
Decided January 31, 2006
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 04-3520
JERRY HARDEN,
Petitioner-Appellant,
v.
PHILLIP A. KINGSTON,
Respondent-Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin
No. 02-C-1274
J. P. Stadtmueller,
Judge.
O R D E R
A Wisconsin jury convicted Jerry Harden of two counts of burglary, Wis. Stat.
§ 943.10(1), and two counts of criminal damage to property, Wis. Stat. § 943.01(1). The
court sentenced him as a habitual offender, Wis. Stat. § 939.62(1)(b), to a total term of
31 and a half years in prison. On appeal, the court appointed the State Public Defender
to represent Harden, but counsel filed a no-merit report pursuant to Anders v.
California, 386 U.S. 738 (1967), and Wis. Stat. § 809.32. The Wisconsin Court of
UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

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Appeals determined that further proceedings would be frivolous and affirmed Harden’s
conviction. State v. Harden, No. 01-627-CRNM (Wis. Ct. App. Aug. 22, 2001). After
pursuing an unsuccessful motion for postconviction relief in the state courts, State v.
Harden, No. 02-0637 (Wis. Ct. App. Sept. 18, 2002), Harden filed this petition pursuant
to 28 U.S.C. § 2254, which the district court denied, Harden v. Bertrand, No. 02-C-1274
(D. Wis. July 28, 2004). The district court nonetheless granted a certificate of
appealability on the question whether the identification testimony of an eyewitness
violated Harden’s right to due process because police employed an unduly suggestive
identification procedure. The court also certified Harden’s related ineffective assistance
of counsel claim. In evaluating these two arguments, we rely on the account of the facts
and proceedings provided by the state courts.
At about 5:00 a.m., Janis Baubonis heard a noise while resting on a couch in her
home. An intruder then walked past her and remained in the room for 3 to 4 minutes
before leaving her residence. When police arrived, Baubonis described the man, who
had been about 8 to 10 feet away from her, as being 5 feet 8 inches tall, 130 pounds,
and in his mid-20s. Though the room was dark and her television provided the only
light, she also reported that she had observed that he had sandy brown hair pulled into
a short pony-tail, had no facial hair, and wore blue jeans, a light-colored short sleeved
shirt, and a surgical glove on his right hand. Police also included a notation in the
statement, which she signed at the time, indicating the intruder was a “w/m”—white
male—though Baubonis testified at trial that she did not remember specifying his skin
color.
While police were taking Baubonis’s statement, they received another call
regarding a burglary two blocks away, where officers had just arrested Harden. The
officers interviewing Baubonis told her of Harden’s arrest and drove her to the second
home, where they conducted a “showup,” in which only Harden was present, seated in
the back of a police car. See United States v. Rogers, 387 F.3d 925, 936 (7th Cir. 2004)
(describing showup procedure). Baubonis identified Harden as the man she had seen
in her home. Although Harden is 5 feet 7 inches tall, 135 pounds, and had a pony-tail
at the time of his arrest, he is African-American. At trial, without any objection from
Harden, Baubonis repeated her identification.
In the course of reviewing counsel’s no-merit report, the Wisconsin Court of
Appeals addressed whether the showup tainted Baubonis’s identification. Though
counsel’s submission discussed Baubonis’s identification only in terms of the sufficiency
of the evidence, focusing on whether the jury reasonably relied on her identification
testimony, Harden’s response argued that the identification procedure was unduly
suggestive and therefore that Baubonis’s identification testimony should have been
suppressed. Instead of deeming the issue procedurally defaulted because of Harden’s
failure to object to the trial identification, see Page v. Frank, 343 F.3d 901, 905-06 (7th
Cir. 2003), the appellate court concluded that Harden’s argument was frivolous

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because the showup was not unduly suggestive. Harden again raised the identification
procedure in a postconviction motion, arguing that trial counsel was ineffective for
failing to suppress Baubonis’s testimony, that appellate counsel was ineffective for
failing to argue trial counsel’s ineffectiveness, and that the trial court erred by not sua
sponte suppressing the testimony. The trial and appeals courts rejected his arguments
because the claim had been decided on direct review.
The district court observed that the state court’s determination that the showup
was not unduly suggestive “may be . . . an unreasonable application of Supreme Court
precedent.” The court nevertheless declined to find that the procedure was unduly
suggestive, because it concluded that the identification was independently reliable.
See, e.g., United States v. Funches, 84 F.3d 249, 255 (7th Cir. 1996).
Our review of a district court’s denial of a § 2254 petition is plenary. Balsewicz
v. Kingston, 425 F.3d 1029, 1031 (7th Cir. 2005). Relief is available only if the
Wisconsin courts’ adjudication of Harden’s claims “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” or “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.” 28 U.S.C. § 2254(d).
We briefly address the district court’s choice to focus on the reliability of the
identification. The state argues that federal habeas corpus review should begin—and
in its view end—with the Wisconsin Court of Appeals’s holding that Harden did not
establish that the showup was unduly suggestive. State courts are not required to “fill
their opinions with discussions that by their lights are unnecessary,” but a state court’s
decision to analyze only one of two independent parts of a test does not preclude federal
consideration of the second. Lindh v. Murphy, 96 F.3d 856, 874 (7th Cir. 1996) (en
banc), rev’d on other grounds, 521 U.S. 320 (1997). Federal courts review the resolution
of a claim. Id. Here, the claim “adjudicated on the merits,” 28 U.S.C. § 2254(d), was not
the suggestiveness of the showup, but rather the admissibility of Baubonis’s
identification testimony. Thus, under the two-part test for the admissibility of
eyewitness testimony that was potentially tainted by a suggestive identification
procedure, see Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003), a reviewing
court may decline to address the suggestiveness of the identification and focus its
analysis on the reliability of the witness, see Armstrong v. Young, 34 F.3d 421, 427-28
(7th Cir. 1994).
Though Harden did not attempt to suppress Baubonis’s testimony, the district
court inquired whether Baubonis’s testimony would have properly been admitted over
a suppression motion or objection by Harden. See Neil v. Biggers, 409 U.S. 188, 198
(1972) (discussing suppression of eyewitness testimony); Gregory-Bey, 332 F.3d at
1045. The court concluded that due process would not have required the trial court to

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exclude the testimony because it was independently reliable. Baubonis first viewed
Harden in a poorly lit room, but her initial description was largely consistent with
Harden’s appearance (though there is some dispute over whether she reported to police
that the intruder was white). She had the opportunity to view him at a distance of only
8 to 10 feet, and she positively identified him when she viewed him both at the second
crime scene and at trial. These factors support the reliability of Baubonis’s testimony.
See Gregory-Bey, 332 F.3d at 1045 (describing factors that court considers when
assessing reliability). We agree with the district court that a suppression motion by
Harden would have been fruitless.
Moreover, it was not error for the state trial court to allow the jury to consider
Baubonis’s reliability, rather than ordering a suppression hearing on its own initiative.
See Watkins v. Sowders, 449 U.S. 341, 347-48 (1981). Harden’s counsel highlighted the
shortcomings of Baubonis’s identification, and the court instructed the jury on “the
proper evaluation of evidence.” Id. at 347. The jury ultimately considered the reliability
of Baubonis’s testimony. Under the circumstances presented here, due process was not
offended by permitting the jury to perform that function. Id. at 348.
Finally, we consider whether Harden’s counsel was ineffective for failing to
argue for suppression of Baubonis’s testimony. Harden must show that counsel’s
performance was deficient and prejudiced his defense. Martin v. Grosshans, 424 F.3d
588, 590 (7th Cir. 2005). He cannot show deficient performance, however, because the
reliability of an eyewitness is an issue that may be raised either before a judge in a
suppression motion or before a jury through cross examination. See Watkins, 449 U.S.
at 347 (suggesting that due process may require a suppression hearing before an
allegedly coerced statement is admitted, but observing that “[w]here identification
evidence is at issue . . . no such special considerations justify a departure from the
presumption that juries will follow instructions”). Thus, we cannot say that counsel’s
choice to argue to the jury, rather than the judge, that Baubonis was unreliable fell
“below an objective standard of reasonableness.” Martin, 424 F.3d at 590.
AFFIRMED.

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