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Makiel v. Butler

United States Court of Appeals, Seventh Circuit

April 10, 2015

DANIEL MAKIEL, Petitioner-Appellant,
KIM BUTLER, Warden, Respondent-Appellee

Argued: November 10, 2014.

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Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 CV 9644--James B. Zagel, Judge.

For DANIEL MAKIEL, Petitioner - Appellant (13-3076, 13-3777): Kara Kapp, Attorney, Barry Levenstam, Attorney, JENNER & BLOCK LLP, Chicago, IL.

For KIM BUTLER, Respondent - Appellee (13-3076, 13-3777): Lindsay Beyer Payne, Attorney, Joshua M. Schneider, Attorney, OFFICE OF THE ATTORNEY GENERAL, Chicago, IL.

DANIEL MAKIEL, Petitioner - Appellant (13-3777), Pro se, Menard, IL.

Before WOOD, Chief Judge, and ROVNER and HAMILTON, Circuit Judges.


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Hamilton, Circuit Judge.

Petitioner Daniel Makiel was convicted in an Illinois state court for the murder of Katherine Hoch and the armed robbery of a gas station where she worked. He appeals from the district court's denial of his petition for a writ of habeas corpus and raises two claims on appeal. First, he argues that his appellate counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for failing to challenge two evidentiary rulings during his direct appeal. Second, he contends that his constitutional right to compulsory process was violated when the trial court prevented a witness from testifying on his behalf.

We affirm. Although there were some problems in the state courts' handling of Makiel's case, he is not entitled to federal habeas corpus relief. The state courts did not apply federal law unreasonably in concluding that Makiel's counsel was not ineffective in selecting the issues to pursue on appeal. The evidence shows that his counsel selected the issues with care. One issue she raised drew a remand, and although the other two issues did not prevail, they both drew a dissenting opinion. The first issue Makiel complains she did not raise-an evidentiary ruling preventing the defense from impeaching prosecution witness Allen Martin with a pending forgery charge--was not so clearly stronger than the issues she did raise that the state courts were required to find ineffective assistance of counsel under Strickland. The second issue she did not raise--the trial court's exclusion of Brian Spodach's testimony about the reputations of prosecution witnesses Martin and Shane Miller--was not clearly stronger than the issues she raised.

The state court also did not act unreasonably when it found no violation of Makiel's constitutional right to compulsory process. The trial court excluded the testimony of eleven-year-old Tim Anderson, who would have blamed another young boy (not the adult Makiel) for the murder. This proffered testimony was uncorroborated

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at the time of trial, but its exclusion was an error. That was the basis for the state appellate court's remand in the original appeal for an evidentiary hearing. See People v. Makiel, 263 Ill.App.3d 54, 635 N.E.2d 941, 200 Ill.Dec. 602 (Ill. App. 1994), from which we draw most facts in this opinion. By the time the state courts decided the constitutional issue, however, Anderson had completely disavowed his proffered trial testimony, and there was no reason to think his proffered trial testimony would have been probative or reliable. Under the circumstances, the state courts' denial of relief was not an unreasonable application of U.S. Supreme Court precedent.

I. Factual and Procedural History

The complex history of this case spans more than twenty-five years. Several of our ultimate conclusions depend on evaluating the record as a whole, so we must describe in some detail each stage of Makiel's process through the state and federal courts.

A. The Murder of Katherine Hoch

Katherine Hoch managed a Mobil gas station in Calumet City, Illinois. On the night of October 19, 1988, the gas station was robbed. She was taken into a back room and shot in the back of the head. The State initially charged three men with the murder and armed robbery: Samuel Ilich, Todd Hlinko, and petitioner Daniel Makiel. Ilich went to trial and was acquitted. After Ilich's acquittal, Hlinko reached a plea agreement with the State. He agreed to testify against Makiel in exchange for dropping the murder and armed robbery charges against him. Makiel was tried, convicted, and sentenced to life in prison. Makiel maintains his innocence.

B. Pretrial Proceedings

On March 2, 1989, several months after the murder and robbery, police arrested Todd Hlinko on a drug offense, which also violated his probation from an earlier aggravated battery conviction. While in custody that day, Hlinko signed a statement saying that on October 19, 1988, Makiel went into the Mobil gas station alone, returned, and jumped back into the car, and that Makiel, Hlinko, and Ilich then drove to Makiel's house. According to the statement, Hlinko saw a purse at Makiel's house that night before they went to sleep.

On March 16, 1989, the police arrested Hlinko again, this time for the murder and armed robbery at the gas station. After questioning by the police, Hlinko signed a second statement that was inconsistent with his first statement. In the March 16 statement, he again placed himself, Ilich, and Makiel at the gas station, but this time he told police that he stayed in the car while Makiel and Ilich went inside. He also told police that after Makiel returned to the car, he saw Makiel throw something out of the window but never saw a gun.

On April 7, 1989, Makiel was indicted for the murder and armed robbery at the gas station. At the time, he was already in the custody of the Indiana Department of Correction on an attempted murder conviction. Indiana held an extradition hearing where Makiel was represented by counsel. The extradition request was granted, and Illinois authorities transported him from Indiana to Illinois on October 20, 1989.

During the trip, an Illinois prosecutor questioned him about the crime. Makiel answered some of the questions and gave an arguably incriminating statement. Before trial, he moved to suppress this statement. The state trial court denied his motion.

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C. Trial

Makiel went to trial in February 1991.[1] No physical evidence directly linked him to the crime scene. The prosecution's case rested primarily on witness testimony, especially from Hlinko, who reached a plea agreement with the State in October 1990 in exchange for testifying against Makiel.

1. Hlinko's Plea Agreement

Hlinko's plea agreement in the murder case was unusually generous. Hlinko first pled guilty to the probation violation based on the sale of narcotics that led to his first arrest on March 2, 1989. Without any plea agreement on that charge, he was sentenced to five years in prison. His plea to the probation violation admitted the sale of narcotics, and he faced another possible fifteen years in prison on that charge.

When the State first approached Hlinko to offer a reduced prison sentence in exchange for testifying against Makiel, he refused. Ilich was then acquitted of the murder and armed robbery in a separate trial. After Ilich's acquittal, the State went back to Hlinko and made a much more generous offer: in exchange for his testimony against Makiel, Hlinko would receive five years in prison on the pending narcotics charge, which would run concurrently with the five-year term on the probation violation, plus the State would drop the murder and armed robbery charges. In effect, he would face no additional punishment on the narcotics charge or for the murder and armed robbery. This time, Hlinko accepted the deal.

2. Hlinko's Testimony

At trial, Hlinko testified that on October 19, 1988, he, Makiel, and Ilich were driving a blue Oldsmobile Cutlass 442 belonging to a friend, John Miller, around Calumet City. In later testimony, John Miller said that he had loaned the car to Makiel and Hlinko and noticed from its condition the next day that it had been driven the night before.

According to Hlinko, at about 11:00 p.m. Makiel said he " would stop and get some money." They pulled up to the Mobil gas station and parked just off the road. They waited in the car for a few minutes until the two customers in the gas station had left. Then they parked the Cutlass next to a white van, which belonged to Katherine Hoch.

Hlinko testified that Makiel got out of the car, and--contrary to his earlier statements to police--that Hlinko himself followed Makiel into the gas station. As they entered, Hlinko saw Hoch walking from the counter toward a back room. Makiel told Hlinko to " watch out," pointed a gun at Hoch, grabbed her arm, and led her to the back room. As he acted as a lookout, Hlinko heard Makiel demand money from Hoch and heard noises like drawers slamming. Then he heard a single gunshot. Makiel left the back room holding the gun and a purse and went behind the counter to the cash register. Makiel picked up an envelope from the register, took two packs of cigarettes, and handed the cigarettes to Hlinko. Hlinko did not see anyone else in the gas station at the time. He estimated

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that they had been inside the store for only a few minutes.

Hlinko and Makiel returned to the car, and Makiel put the purse under the driver's seat. Once inside the car, Hlinko repeatedly asked Makiel, " What the hell was going on?" Makiel told Hlinko that " something went wrong" inside the station but not to worry about it.

Hlinko testified that during the ensuing car ride, they stopped in an alley near Ilich's house. Makiel left the car with the purse and walked toward a dumpster. Hlinko did not see what Makiel did at the dumpster, but he noticed that when Makiel returned to the car, he no longer had the purse with him.

At about 11:30 p.m., the men reached the home of a friend, Shane Miller (no relation to the John Miller who owned the Cutlass). Shane Miller invited Makiel, Hlinko, and Ilich into his house, and the four of them smoked some marijuana. About five minutes after smoking, all four drove in the Cutlass to the Calumet Expressway. Makiel, who was driving, slowed the car down and took the gun from his pants as they crossed a bridge near Calumet City. He handed the gun to Hlinko and told him to get rid of it. Hlinko threw the gun out of the passenger-side window and into the CalSag River. Shane Miller, sitting in the backseat, asked Hlinko what he threw out the window. Hlinko said it was a gun.

The four men then returned to the same Mobil gas station to get some gas. When they arrived, they saw police cars in the parking lot. A police officer stopped their car, told them that something had happened, and directed them to leave. The four men then drove to Makiel's house, arriving around midnight. Hlinko and Makiel went upstairs to Makiel's bedroom, while Ilich and Shane Miller used the downstairs bathroom. During the moments before Ilich and Miller entered the bedroom, Hlinko again asked Makiel what had happened, and Makiel again told him that something had gone wrong but not to worry. After Ilich and Miller entered the room, Hlinko heard Makiel tell Miller about the shooting.

At about 1:00 a.m., John Pullybank and his girlfriend arrived at Makiel's house. No one said anything to them about the gas station incident. Pullybank and his girlfriend offered to go out and buy more alcohol. To Hlinko's surprise, Makiel contributed $20 for himself, Hlinko, and Ilich. Hlinko testified that the $20 surprised him because Makiel usually had no money on him and Hlinko had paid for everything earlier that evening. In later testimony, Pullybank said that he was friends with Hlinko, Makiel, and Ilich, but he denied seeing Shane Miller while visiting Makiel's house that night. He also did not know for certain whether he had visited Makiel's house on the night in question.

On cross-examination, defense counsel attacked Hlinko's credibility in three main ways. First, counsel confronted Hlinko with his two earlier statements to police, which were inconsistent with each other and with his testimony at trial. In fact, at several points during cross-examination, Hlinko admitted that he " lied" to police during earlier parts of their investigation. Second, counsel confronted Hlinko with a letter he sent to Makiel in April 1989 (before he agreed to testify against Makiel) apologizing for falsely implicating him in his earlier statements to police. In that letter, Hlinko also wrote that police officers had beaten him when he initially denied knowing anything about the murder. Third, counsel walked through Hlinko's prior criminal history and the details of his generous plea agreement with the State.

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3. Shane Miller's Testimony

The prosecution called Shane Miller to corroborate Hlinko's testimony. Miller testified that he was in the Cutlass with Makiel, Hlinko, and Ilich on the night of October 19 (after the murder occurred) and saw Makiel hand something to Hlinko while the men were on the Calumet Expressway. According to Miller, Makiel told Hlinko to get rid of it, and Hlinko tossed it out the window into the CalSag River. Miller asked Hlinko what it was, and Hlinko told him it was a gun.

Shane Miller also testified that the four men stayed at Makiel's house that night for about twenty-five minutes. During that time, Makiel told Miller that he, Hlinko, and Ilich had gone to the Mobil gas station and that Makiel had shot the manager. Another man, Brian Spodach, later dropped by Makiel's house and gave Miller a ride to Miller's sister's house.

On cross-examination, defense counsel confronted Shane Miller with a signed statement from February 1990 saying that his earlier statements to police implicating Hlinko and Makiel in the gas station murder were untrue. He testified that the statement was written by Hlinko's mother and that he signed the statement because she begged him. Defense counsel also pointed out that Shane Miller waited approximately five months before telling the police what he knew about the crime.

4. Allen Martin's Testimony

The prosecution also called Allen Martin to bolster Hlinko's testimony. Martin testified that at about 11:00 p.m. on October 19, 1988, he and his girlfriend stopped at the Mobil gas station to buy gas. He recognized John Miller's distinctively-painted Cutlass 442 parked along the fence on the east side of the gas station. He saw his friends--Makiel, Hlinko, and Ilich--sitting in the Cutlass. After he paid for his gas, he waved to the three men, who were still sitting in the Cutlass, got back in his car, and drove to a game room. He estimated that he was at the Mobil station for a total of three minutes and at the game room for about twenty minutes before he left to drive his girlfriend home. On the way, Martin passed the Mobil station and saw an ambulance and police cars. He read about the murder in the newspaper and later found out that his friends had been implicated in the crime. Martin testified that it took him a while to make a connection between having seen his friends at the gas station on October 19 and their possible involvement in the murder.

5. Martin's Pending Forgery Charge

On cross-examination, Makiel's counsel attempted to impeach Martin in several ways. Counsel had Martin admit that he (1) had been drinking the night of the murder, (2) waited a long time before coming forward to the police, and (3) denied who he was when he was initially approached by a defense attorney.

Makiel's counsel also attempted to impeach Martin with a pending forgery charge. Counsel asked Martin whether he had been charged with forgery, and Martin flatly denied it. Defense counsel then informed the court at a sidebar conference that he wanted to impeach Martin by introducing a certified copy of the pending charge. During this sidebar, the State did not contest the fact that Martin had a pending forgery charge. The trial court nevertheless barred defense counsel from introducing the charge and ordered both sides not to discuss it further in front of the jury.

6. Prosecutor Quinn's Testimony

Assistant State's Attorney Patrick Quinn testified that on March 21, 1989--before Makiel was indicted--he interviewed Makiel

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in the presence of police investigators after reading him his Miranda rights. Makiel denied knowing anything about the murder. Quinn informed Makiel that a witness had seen him with Hlinko and Ilich at the Mobil gas station around the time of the murder on October 19, 1988. At that point, Quinn testified, Makiel said that he remembered that he had stopped at the gas station on that night with Hlinko and Ilich to buy some cigarettes.

7. Physical Evidence

A Chicago sanitation employee testified that on October 24, 1988, he found a purse containing Hoch's driver's license in a trash can in an alley less than ten minutes from Ilich's home. Hoch's husband testified that the purse belonged to his wife. A forensic scientist and fingerprint expert analyzed the purse and found sixteen latent prints suitable for comparison. Eight prints belonged to Hoch, but none of the remaining eight prints matched Makiel, Hlinko, or Ilich.

The first police officer to arrive at the crime scene testified that he found a .38-caliber shell casing in the back room of the gas station, but it yielded no suitable fingerprints. Nor could the evidence technician find any suitable prints inside or outside the gas station. ...

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