Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:05-CV-374-Philip P. Simon, Judge.
The opinion of the court was delivered by: Rovner, Circuit Judge.
Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.
A Lake County, Indiana court convicted Cleveland Bynum of murdering five people and sentenced him to 300 years' imprisonment. Bynum filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, contending that his trial counsel was ineffective in failing to put him on the stand at the hearing on his motion to suppress his post-arrest confessions to the murders. Bynum contends that his confession was coerced and that, had he testified about the coercion, the trial court would have granted his motion to suppress. The district court denied Bynum's petition and, because he has not shown that he was prejudiced by his counsel's ineffectiveness, we affirm.
On February 16, 2000, Bynum began arguing with his friend Anthony Jeffers. Bynum was upset because Jeffers had told people that Bynum was a drug dealer. A third person, Elizabeth Daily-Ayres, witnessed the confrontation. Later, in the early hours of February 17, Bynum resumed the argument, this time at Jeffers's home. Jeffers's girlfriend, Angie Wallace, was present during this second argument along with Wallace's 18-month-old daughter, her sister Susan, and Susan's thirteen-year-old son, "L.B." That night, L.B., sleeping in a different room, was awakened by five gunshots. L.B. testified at trial that, immediately following the first few shots and while he was still in the bedroom, he heard two men talking. He testified that one voice was Bynum's, even though he had met Bynum only once before. According to L.B., Bynum said "something about putting another shell in." L.B. stated that the other man, whose voice he did not recognize, said "[D]on't rush me," and Bynum responded "[S]hoot her in the head." After Bynum and the second man departed, L.B. left the bedroom and discovered that Jeffers, Angie Wallace, and Susan Wallace were all dead. The 18-month-old child was spattered with blood, but she was still alive.
On that same evening in a different house, Elizabeth Daily-Ayres, Sheila Bartee, and Michelle Fliris were preparing for bed. According to Fliris, Daily-Ayres paged someone and received a phone call a few moments later. She then decided to go to the liquor store along with Bartee. Fliris went to sleep, but awoke several hours later to find that Daily-Ayres and Bartee had never returned from the store. Fliris noticed a piece of paper Daily-Ayres had left by the phone; on it was written the name "Chris" as well as a phone number. (Bynum, whose middle name is "Christopher," often goes by the nickname "Chris.") The next day, police found Daily-Ayres's and Bartee's bodies lying on the ground in a baseball park, riddled with gun-shot wounds.
On February 18, officers arrested Bynum and held him for two days on a probation violation. During that time, Bynum made two statements to police. In his first statement, made on the day of his arrest, he admitted killing Jeffers and the Wallace sisters. He also admitted that he knew Daily-Ayres and had given her his pager number, but insisted that he had not shot her or Bartee. Instead, he reported that Daily-Ayres and Bartee were present at Jeffers's home when he shot the other three victims, but that they left accompanied by two men, Deandre MacIntosh and Terrell Jackson. Bynum acknowledged that he knew MacIntosh and Jackson intended to kill Daily-Ayres and Bartee, but claimed that he had nothing to do with those murders. According to the arresting officers, they read Bynum his Miranda rights before he gave his statement. Bynum also signed a waiver form in which he acknowledged that he was advised of his constitutional rights, including his right to counsel, and that nonetheless he waived those rights. He also acknowledged in writing that his statement was voluntary and that no one had threatened him.
Two days later Bynum signed a second, identical written waiver and made a second statement. He confirmed that he had killed Jeffers and the Wallaces. This time, how-ever, he exonerated MacIntosh and Jackson, instead claiming that Jeffers shot Daily-Ayres and Bartee before Bynum killed him. He knew this, he said, because he witnessed the murders and because Jeffers used Bynum's gun. Then, Bynum continued, Jeffers forced him at gun-point to drag the bodies to the baseball park where they were found. Bynum explained that he had walked back to Jeffers's house with Jeffers. Jeffers gave the gun back to Bynum, but when they got into an argument and began pushing each other, the gun accidentally went off, hitting Jeffers. Angie and Susan Wallace began to yell and approached Bynum, who interpreted their conduct as a threat and shot them both. Then, Bynum claimed, he went home and, the next morning, threw his gun in a lake.
Before trial, Bynum met with his appointed counsel, Charles Graddick. According to Bynum's testimony at his post-conviction hearing, he told Graddick that during his interrogation, police threatened him with violence when he asked for a lawyer. Bynum also reported that the officers had handcuffed him to a chair for nine hours, deprived him of food and water, and refused to let him use the bathroom. Byum further claimed that Officer Louis Donald told him that the police had Bynum's fiancée in custody and would charge her with obstruction of justice and harboring a fugitive, events that would require that their son enter child protective services. It was only after seeing his fiancée at the police station, Bynum continued, that he agreed to sign the waiver form and make his first statement. Finally, Bynum claimed that Donald fabricated the second confession.
Graddick did not respond to these concerns immediately, but at trial, he moved to suppress Bynum's confessions on the theory that they were coerced. Graddick did not ask Bynum to testify at the mid-trial suppression hearing, instead questioning only the three officers who took Bynum's statements. The officers testified that Bynum never asked for counsel, never told them he was tired or hungry, and at no point during the interrogation seemed unwilling to talk to them. The officers also denied physically threatening Bynum or coercing him in any way, although they acknowledged that Bynum seemed nervous and was worried about his family. More-over, the State of Indiana introduced into evidence the two waiver forms.
After the officers testified and counsel presented argument, the trial court judge ruled that Bynum's confessions were voluntary and denied the motion to suppress. The judge explained that he found the officers' testimony credible, noting that "the police in no way interfered with the voluntariness of the confession" and that "the defendant was properly Mirandized and apprised him of his rights, and he was given an opportunity to bring in an attorney if he desired to do so." After the remainder of the trial, a jury convicted Bynum of five counts of murder, largely based on the confessions.
Bynum challenged his conviction on direct appeal to no avail. He then sought post-conviction relief in state court with new counsel, arguing that his trial lawyer was ineffective in failing to put him on the stand to testify at the suppression hearing. At an evidentiary hearing, Graddick testified that he did not recall Bynum ever telling him that he had been prevented from obtaining a lawyer, and maintained that if Bynum had told him about that, he would have moved to suppress the statements before trial. Moreover, Graddick explained that he decided to move to suppress the confessions during trial rather than before because he did not want to give the state advance notice of his trial strategy. And Graddick stated that, in his view, the best way to show coercion was to get the officers to tell inconsistent stories about the interrogation. Finally, he described his fears that, if put on the stand, Bynum's version of events would not withstand cross-examination:
Counsel: Why was it that if you did in fact have a suppression hearing, you would not have had Mr. Bynum testify ...