Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 07 C 3469-Samuel Der-Yeghiayan, Judge.
The opinion of the court was delivered by: Bauer, Circuit Judge
Before EASTERBROOK, Chief Judge, and BAUER and FLAUM, Circuit Judges.
William Riley Sutherland, III was tried before a jury in an Illinois state court on charges of attempted first-degree murder, aggravated battery with a firearm and home invasion. On the third day of trial, Sutherland's defense counsel was held in contempt and jailed overnight. Defense counsel returned to court the next morning and represented Sutherland through the conclusion of trial, at which time a jury found Sutherland guilty of all charges. In his direct appeal and again throughout post-conviction proceedings, Sutherland claimed that he was denied the assistance of counsel because the jailing of his attorney prevented the preparation of his defense. After those challenges were unsuccessful, Sutherland sought a writ of habeas corpus in federal court under 28 U.S.C. § 2254. The district court denied his petition, a decision which Sutherland now appeals and we affirm.
On the third day of Sutherland's five-day jury trial, defense counsel thrice violated a court order barring him from eliciting testimony regarding exculpatory statements Sutherland made to police. After the third violation, the court called an evening recess and ordered counsel jailed overnight.
The next morning, the trial resumed; defense counsel presented its entire case, including Sutherland's testimony. On the fifth and final day of trial, the State called one rebuttal witness, and the parties presented closing arguments. At the conclusion of trial, Sutherland was convicted of two counts each of attempted first-degree murder, aggravated battery with a firearm and home invasion.
Sutherland first objected to his counsel's overnight incarceration in a motion for mistrial filed approximately one month after his conviction. In a supporting affidavit, defense counsel described his experience at the Cook County Jail. Counsel alleged that Sutherland was unable to communicate with him during his incarceration. Further, defense counsel stated that he was able to sleep for only three hours during the overnight recess and, as a result, returned to court the next day sleep-deprived and devoid of the mental clarity to adequately present Sutherland's case. According to counsel, he lacked the "presence of mind" to request either a mistrial or continuance when the trial resumed the following day. The trial court denied the motion.*fn1
On direct appeal, Sutherland raised numerous challenges, including a claim that his counsel's overnight incarceration amounted to a constructive denial of his Sixth Amendment right to counsel. In affirming his conviction, the Illinois Appellate Court noted that Sutherland did not contend that defense counsel asked to confer with Sutherland during his night of incarceration, that Sutherland requested to see his counsel that night, or that such a request was denied by jail authorities. People v. Sutherland, 743 N.E. 2d 1007, 1015 (Ill. App. Ct. 2000). Therefore, the court reasoned, Sutherland could not prove that he was denied his right to the assistance of counsel. Id.
Thereafter, Sutherland filed a pro se petition for post-conviction relief in the state trial court in which he again argued that his counsel's incarceration violated his Sixth Amendment rights. This time, Sutherland presented a supporting affidavit in which he alleged for the first time that jail personnel denied his request to meet with counsel during the overnight recess. In dis-missing the petition, the trial court found that, because the claim was the same constructive-denial-of-counsel claim that Sutherland had raised on direct appeal, it was barred by res judicata. Sutherland then brought a § 2254 petition in federal district court. Finding that the Illinois Appellate Court had properly rejected Sutherland's constructive denial of counsel claim, the district court denied the petition for a writ of habeas corpus. Suther-land sought a certificate of appealability, which we granted.
Sutherland contends that he was denied his Sixth Amendment right to assistance of counsel when he was not allowed to confer with his counsel during an overnight recess the night before his case-in-chief was to be presented. Sutherland claims that the contempt order entered against his attorney and, later, the refusal by Cook County Jail officials to allow Sutherland and his attorney to communicate when they were being held in the same facility, combined to result in the denial.
We review de novothe district court's denial of a habeas petition. Ben-Yisrayl v. Buss, 540 F.3d 542, 546 (7th Cir. 2008). Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), we may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 376 (2000). A state-court decision is "contrary to" federal law, within the meaning of the federal habeas statute, if the state court either incorrectly laid out governing United States Supreme Court precedent, or, having identified the correct rule of law, decided a case differently than a materially factually indistinguishable Supreme Court case. 28 U.S.C.A. § 2254(d)(1); Calloway v. Montgomery, 512 F.3d 940, 943 (7th Cir. 2008). An "unreasonable application" of United States Supreme Court precedent occurs, within the meaning of the federal habeas statute, when a state court identifies the correct governing legal rule but unreasonably applies it to the facts of a case or if the state court either unreasonably extends a legal principle from the Supreme Court's precedent to a new context in which it should not apply or unreasonably refuses to extend that principle to a new context in which it should apply. 28 U.S.C.A. § 2254(d)(1); Muth v. Frank, 412 F.3d 808, 814 (7th Cir. 2005).
This standard only applies, however, to a "claim that was adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). In this case, the post-conviction trial court applied res judicata to Sutherland's denial-of-assistance-of-counsel claim. Because a judgment of res judicata is not an adjudication on the merits, see Conner v. McBride, 375 F.3d 643, 649 (7th Cir. 2004), the state court decision that is subject to our review is the judgment of the Illinois Appellate Court. In rejecting Sutherland's claim, that court applied the Supreme Court's decision in Geders v. United States,425 U.S. 80 (1976). In Geders, the Court held that "an order preventing petitioner from consulting his counsel 'about anything' during a 17-hour overnight recess between his direct-and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment." Id. at 91. Distinguishing from Geders, the Illinois ...