In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-3055

REYNOLD C. MOORE,

Petitioner-Appellant,

v.

STEVEN B. CASPERSON,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 99 C 408—Patricia J. Gorence, Magistrate Judge.

____________

ARGUED MAY 14, 2003—DECIDED SEPTEMBER 29, 2003

____________

Before POSNER, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge. Reynold Moore was convicted in

Wisconsin state court of first degree intentional homicide as

a party to a crime, in violation of Wisconsin Statutes

§§ 940.01 and 939.05. After having attempted without success to obtain relief through a post-conviction motion and in

the Court of Appeals of Wisconsin, Mr. Moore filed a

petition for review in the Supreme Court of Wisconsin,

which was denied. In that petition, he included only three

of his eight claims. Mr. Moore then petitioned for habeas
2 No. 02-3055

corpus relief. See 28 U.S.C. § 2254. The district court determined that the five claims not raised in the petition to the

Supreme Court of Wisconsin were procedurally defaulted.

With respect to the three remaining claims, the district court

denied habeas relief on the merits. For the reasons set forth

in the following opinion, we affirm the judgment of the

district court.

I

BACKGROUND

A.

On November 10, 1992, Thomas Monfils, an employee at

the James River Paper Mill, called the Green Bay, Wisconsin

police department and anonymously informed the police

that one of his coworkers, Keith Kutska, was planning to

steal an expensive piece of electrical cord from the plant.

The police informed the company of the tip. James River

Security Guards Gary Schmitz and John Gilson stopped

Kutska on his way out of the plant and asked Kutska to

show them the contents of his bag. Kutska refused and received five days of unpaid suspension. 

Monfils asked the police not to give anyone access to

the tape of his call and not to disclose his identity. Although

the police promised they would keep the tape confidential,

they gave the tape to Kutska. Kutska recognized Monfils’

voice and then brought the tape to work. He played the tape

for various coworkers, including once for Monfils, in the

number 9 control room (or “coop”). Connie Jones, a lab

technician, who was at coop 9 to take readings from a

machine, listened to the tape. As she returned to the lab, she

encountered Mr. Moore. She told him about the tape and

suggested that Mr. Moore go and listen to it. Mr. Moore
No. 02-3055 3

1 Basten and Johnson were Mr. Moore’s coworkers and codefendants. In all there were six defendants charged with the murder of Monfils: Mr. Moore, Basten, Johnson, Kutska, Michael

Piaskowski and Michael Hirn.

went and listened to the tape and was told that the voice

was that of Monfils. He did not know Monfils. 

Monfils left his post at coop 7 and was confronted around

7:35 a.m. by a group of workers near a water fountain between coops 7 and 9. Monfils was attacked and seriously

injured. He ended up lying in a ball on the floor, unconscious but alive. At approximately 7:40 a.m., mill worker

David Wiener observed, from the break room, that Dale

Basten and Michael Johnson1

 were carrying something,

which he could not see, toward a pulp vat. Johnson was

walking backwards, and the two men were five to six feet

apart. 

At 7:45 a.m., Kutska and Mr. Moore entered coop 7, followed by Piaskowski. Kutska told Piaskowski to alert a supervisor that Monfils was missing. The next day, Monfils’

partially decomposed body was found at the bottom of the

pulp vat. A heavy weight, usually kept near machine 7, was

tied around his neck. The coroner determined that Monfils

died by asphyxiation due to the aspiration of paper pulp.

For two years, the Green Bay police made no progress in

the case. But then, in April 1995, Brian Kellner told police

that, on the previous Fourth of July, Kutska, after drinking

an alleged forty beers, had admitted that he, Mr. Moore and

several other coworkers had confronted Monfils near the

water fountain after the 7:34 a.m. turnover. Kutska had

drawn a diagram of where each defendant stood and had

told Kellner that someone slapped Monfils and that Hirn
4 No. 02-3055

shoved him. Kutska asked “what if” someone hit Monfils

with a wrench or a board. 

Kellner testified to Kutska’s statement at trial, but, in a

post-conviction proceeding, recanted some of his statement

and testified that Kutska only identified himself, Hirn and

Mr. Moore. 

B.

Mr. Moore, along with five codefendants, was charged

with and convicted of first degree intentional homicide as a

party to a crime. The only evidence about the confrontation

with the decedent was the testimony of Kellner concerning Kutska’s statement and the testimony of James Gilliam.

Gilliam was incarcerated with Mr. Moore. He testified that,

while in prison together, Mr. Moore had said that he,

Kutska and others confronted Monfils, that Kutska initially

hit Monfils and that Mr. Moore then decided that he would

“just do it [hit Monfils] like everybody else and he was just

came from with his fist over the head just like—just like

hitting him on the head and he was just kicking and beating

him.” Tr. 10/13/1995 at 170. According to Gilliam, Mr.

Moore said “he came over everybody else’s arm and just

started popping him in the head, I mean, with his fist.” Id.

at 171. However, according to Gilliam, Mr. Moore said that

he was surprised to learn of Monfils’ ultimate demise in the

pulp vat.

The trial court gave the following limiting instruction to

the jury: 

Some evidence has been received in this trial which relates to one or more of the defendants, without having

any reference to the remaining defendants. In considering and evaluating such evidence, you should exercise
No. 02-3055 5

the utmost care and discretion. Such evidence may be

used only in considering whether the individual or individuals with whom it is concerned are guilty or not

guilty. Such evidence must not be used or considered in

any way against any of the other defendants who are

not implicated by such evidence, either directly or by

inference, except insofar as you may consider that evidence in connection with the instructions which have

been given you regarding a conspiracy.

R.2, Ex.A at 20 (footnote omitted).

Another key state witness was Connie Jones, the lab technician who had told Mr. Moore about the tape and suggested that he listen to it. In all of her statements prior

to trial, including her deposition and statements to the police, Jones had indicated that she saw Mr. Moore at about

the time of a procedure known as a “turnover,” which the

factory records indicated took place at 7:34 a.m. Consequently, she had testified that she had seen Mr. Moore about

7:35 a.m. or soon thereafter. If that testimony was accurate,

that indicated that Mr. Moore probably would have arrived

at coop 9 slightly too late to have participated in the beating

of Monfils. 

About a week before trial, a member of the prosecution

team met with Jones. The attorney asked Jones “whether

[the procedure] could have been a paper break that she saw

Tom Monfils working on as opposed to a turnover which

the earlier statements had said.” R.5, Ex.2 at 64. Factory records indicated that a “paper break”—a different procedure

from a “turnover”—had been performed at 7:17 a.m. Jones

said that she was not sure which she had seen because she

never had observed both procedures. After this meeting

with the prosecution, Jones, of her own volition, went to the

factory and observed both procedures. On the basis of that

observation, Jones came to believe that it was possible, and
6 No. 02-3055

perhaps even more likely, that she had seen a “paper break”

rather than a turnover. The record indicates that she called

the prosecution and informed them of her changed time

frame. See R.5, Ex.2 at 70. The prosecution did not pass

along this information to the defense until after trial began

and, apparently, until after Jones had testified on October 3.

In Mr. Moore’s opening statement, his defense counsel

relied on the timing to make his argument that Mr. Moore

arrived too late to take part in the beating. Counsel noted

that Jones would state that she had seen a turnover, which

the records indicate took place at 7:34 or 7:35, and had

talked to Mr. Moore afterwards. See Tr. 9/27/1995 at 140.

However, when Jones later testified, she stated that she was

unsure as to whether she witnessed a paper break or a

turnover. She explained at trial that the prosecution had

mentioned to her that a paper break had been performed

and thus “there was a possibility that what I saw was not an

actual turnover, but a paper break.” Tr. 10/3/1995 at 91. She

then recounted that she had observed both procedures and

that, although she remained unsure, she did think, based on

differences in the procedures that she observed, that “[i]t

would be more reasonable” to conclude that she had seen a

paper break rather than a turnover. Id. at 92. Her conclusion

with regard to timing was that she believed that she saw

Mr. Moore “somewhere about 7:25,” but that was merely

“an approximation” and that it could “possibly” be “as late

as 7:35,” but it could not have been “as early as 7:15.” Id. at

94.

Defense counsel for several of the defendants, including counsel for Mr. Moore, cross-examined Jones about her

prior statements concerning what she had seen and the time

frame in which she had seen it. Defense counsel for Kutska

attempted to show from Jones’ other testimony that she
No. 02-3055 7

could not have seen a paper break. See id. at 105. In crossexamination by Mr. Moore’s own counsel, he attempted to

show that Jones previously had testified that she had looked

at a clock and thus her prior time frame was correct. See id.

at 121. He further attempted to demonstrate that all of her

prior inconsistent statements impeached her credibility. See

id. at 119-25. Moreover, Mr. Moore’s counsel further brought

out on cross-examination that Jones had changed her

testimony in the week before trial—after the prosecution

had talked to her and suggested such a possibility. See id. at

125-26.

Mr. Moore testified at trial and indicated that he had seen

Jones at the later time period (consistent with the turnover

theory). At closing argument, the prosecution stated that

Jones was 

a very important witness to Rey Moore because his defense rises and falls with Connie Jones. If Connie Jones

can’t make that a turnover that she saw just before she

left the No. 9 coop and went back to the lab, then Rey

Moore is sunk. Because Rey Moore is at that No. 9 coop

much earlier than what he said on the witness stand.

Tr. 10/27/1995 at 238-39.

Also at trial, the defense, but not Mr. Moore’s counsel,

attempted to introduce a computer-generated animated

videotape prepared by experts to establish that David

Wiener, who had seen Johnson and Basten carrying the

body to the vat, could not have seen them from his position.

The trial court excluded the videotape because it found that

the tape might mislead the jury. The trial court nevertheless

admitted a videotape offered by the state that was taken

from the room showing from various positions in the room

what could and could not be seen. Mr. Moore was convicted

of first degree homicide as a coconspirator with the other
8 No. 02-3055

defendants. The State’s theory was that, after beating

Monfils to unconsciousness, the group decided that they

needed to cover up the severe beating of Monfils to avoid

discharges. They therefore decided to throw the body in the

vat.

C.

Mr. Moore sought post-conviction relief. The state trial

court refused to grant a new trial on the basis of the newly

discovered evidence of Kellner’s post-conviction partial

recantation. The court explained that Kellner’s initial

testimony was not terribly credible, and neither was his

recantation. The court stated that Kellner clearly “committed perjury either at the time of the trial or the February

1997 motion hearings,” but that “[a]t what time he was lying

is immaterial. His trial testimony established, if believed

then, that certain named individuals were present at a

confrontation near a ‘bubbler.’ It does nothing more than

that.” R.5, Ex.4 at 3. The court noted that the recantation was

“not with respect to the incident as a whole, but rather with

respect to the question of identification of individuals.” Id.

at 4. The court concluded that “Mr. Kellner’s recantation

would have no effect whatsoever on the result in the trial of

these cases.” Id. The court also stated that it had 

a great deal of difficulty in accepting that the recantation is in fact credible and indeed doubts that a reasonable jury would believe the recantation. However, even

if such recantation were believable and a jury were to

accept it as truthful, there is still no reasonable probability of a different result in the jury verdict. 

Id. at 4-5.

The trial court found that no prosecutorial misconduct

had occurred in the suggestion to Jones that she might have
No. 02-3055 9

seen a paper break and in her subsequent observance of

both procedures at the factory. The court further found that

Jones was a credible witness and that the prosecution had

not engaged in misconduct by failing to tell the defense

about Jones’ changed time line. The court recognized that

the “State must disclose evidence which might be material

to the credibility of a witness,” but here the “inconsistency

in her testimony was readily apparent and counsel were

able to, and in fact did, impeach her testimony through the

use of prior statements and deposition testimony. . . . The

evidence was indeed produced during the process of crossexamination and [the failure to give the defense such evidence at an earlier time] had no effect on the jury verdict.”

R.2, Ex.B at 5.

Finally, the trial court rejected Mr. Moore’s ineffective

assistance of counsel claim. It ruled that it could “find[]

nothing deficient” in the performance of Mr. Moore’s

defense counsel. Id. at 6. Mr. Moore had argued that his

counsel, upon hearing Jones’ change in time frame, should

have “then requested an adjournment or a mistrial or an

evidentiary hearing to establish the basis for the surprise

testimony.” Id. The court held: 

Assuming that any of those things had been done, this

Court can see no reason why an adjournment would

have been granted, why a mistrial would have been

granted or why an evidentiary hearing would have been

held. As previously mentioned, it was simply a question

of a witness testifying differently from previous statements. That is a fact of life in the course of a trial.

Defense counsel had all the previous statements, had

more than adequate opportunity to impeach, and did

so.

Id.
10 No. 02-3055

D.

Mr. Moore appealed to the Court of Appeals of Wisconsin.

He raised eight claims in his appeal: (1) that there was

insufficient evidence for his conviction; (2) that he was entitled to a new trial based on Kellner’s recantation; (3) that

the court erroneously admitted hearsay evidence and

permitted it to be used against all defendants; (4) that the

court erred by denying the defendants’ motions to sever; (5)

that the court erroneously excluded impeachment evidence

of a prosecution witness; (6) that the court erred in failing to

admit a videotape; (7) that his conviction should be reversed

based on the State’s failure to disclose exculpatory and

material evidence; and (8) that his counsel was ineffective.

The court affirmed the judgment of the trial court in all

respects. 

The court held that Mr. Moore and his codefendants were

not entitled to a new trial on the basis of the newly discovered evidence of Kellner’s recantation. See R.2, Ex.A at 10.

The court noted that, under Wisconsin law, a defendant

is entitled to a new trial on the basis of newly discovered

evidence if five criteria are met. See id. The court observed

that “a recantation generally satisfies the first four requirements,” id. at 12, but not necessarily the fifth requirement

that “it is reasonably probable that a different result would

be reached at a new trial,” id. at 10. Relying on Wisconsin

law, the court noted that “a determination by the trial court

that the recantation is not credible is sufficient to conclude

that it is not reasonably probable that a different result

would be reached at a new trial.” Id. at 13. Here, the appellate court continued, “the trial court [had] made two determinations[:] first, that the recantation was not credible and

second, even if the recantation was credible, there was still

no reasonable probability of a different result.” Id. at 13

(footnotes omitted). The court concluded: “[T]he trial court
No. 02-3055 11

2 In Williamson v. United States, 512 U.S. 601, 603 (1999), the Court

stated: “[A] declarant’s squarely self-inculpatory confession . . .

will likely be admissible . . . against accomplices of his who are

being tried under a co-conspirator liability theory.”

observed Kellner’s testimony both at trial and at post-trial

hearings. It found Kellner’s reasons for changing his testimony unworthy of belief. We fail to see how the trial court’s

rejection of Kellner’s recantation as credible was clearly

erroneous and therefore we affirm.” Id. at 14. 

The court determined that Kellner’s statement, as a

“statement against interest,” was reliable because it also included “self-inculpatory statements” and thus “was properly admissible as evidence, not only against Kutska, but

also against Johnson, Basten and Moore.” Id. at 29. As to

severance, the Wisconsin appellate court noted that, under

Wisconsin rules, “[i]f the district attorney intends to use the

statement of a codefendant that implicates another defendant in the crime charged, the judge shall grant a severance

as to any such defendant.” Id. at 32. The Wisconsin court

noted that this action was necessary to comply with Bruton

v. United States, 391 U.S. 123 (1968), which prevents the use

of a codefendant’s statement inculpating another defendant

at a joint trial based on the codefendant’s Sixth Amendment

right to confront witnesses. Nevertheless, the appellate court

concluded that 

the trial court did not misuse its discretion for two reasons: first, Kutska’s statement was self-inculpatory and

directly admissible against all of his codefendants under

a firmly-rooted hearsay exception, see Williamson v.

United States, 512 U.S. [601, 603 (1999)];[2] and, second,

because Kutska did testify in his own defense and was

subject to cross-examination, no Bruton problem arose

which would have required severance.

R.2, Ex.A at 32 (footnote omitted). 
12 No. 02-3055

As to Mr. Moore’s other claims, the court found that the

prosecution’s failure to notify Mr. Moore of Jones’ change in

testimony did not constitute prosecutorial misconduct

under Brady v. Maryland, 373 U.S. 83 (1963), for failure to

disclose material exculpatory evidence to a defendant. The

court explained that Jones’ change in testimony concerning

the time line of events and whether she witnessed a turnover or a paper break was “more damaging” to Mr. Moore

rather than exculpatory or “favorable,” and thus Brady did

not apply. R.2, Ex.A at 43. The court also found that there

was no evidence of incompetence by Mr. Moore’s counsel.

Having been denied relief in the state intermediate

appellate court, Mr. Moore next filed a petition for review

in the Supreme Court of Wisconsin. The petition was

denied. In that petition, Mr. Moore raised only three of

the eight claims that he had brought before the appellate

court, namely: (1) whether the State denied him due process

by failing to disclose Jones’ change in her testimony; (2)

whether under Brady v. Maryland, 373 U.S. 83 (1963),

the prosecutor was required to disclose Jones’ statement

because it was exculpatory and material; and (3) whether he

was denied due process by failure to grant a new trial based

on Kellner’s recantation. 

E.

Mr. Moore then filed for a writ of habeas corpus in the

district court. In that petition, he raised all eight claims that

he had raised in the Wisconsin Court of Appeals. The district court determined that all but the three issues that had

been presented to the Supreme Court of Wisconsin were

procedurally defaulted. 

The court addressed Mr. Moore’s claim that he had been

denied due process by the trial court’s failure to grant him
No. 02-3055 13

a new trial. Recognizing the Supreme Court’s statement in

Herrera v. Collins, 506 U.S. 390, 400 (1993), that “ ‘[c]laims of

actual innocence based on newly discovered evidence have

never been held to state a ground for federal habeas relief

absent an independent constitutional violation occurring

in the underlying state criminal proceeding,’ ” R.37 at 24

(quoting Herrera, 506 U.S. at 400), the district court explained that Mr. Moore “does not contend that there is any

underlying constitutional violation with respect to the testimony of Mr. Kellner.” Id. at 25. Rather, Mr. Moore’s

petition contended that the state trial court erred because

Kellner’s statement was allegedly the only trial evidence

linking Mr. Moore to the confrontation (which the district

court noted was an inaccurate summation of the record).

Because Mr. Moore’s only argument was “that if the new

evidence was presented to the jury it might decide the case

differently,” and Mr. Moore had not pointed to any underlying constitutional violation with respect to Kellner’s testimony, Mr. Moore had “not established that his due

process rights were violated.” Id.

The court then turned to Mr. Moore’s claim that he was

denied due process because the State failed to disclose

Jones’ change in testimony as required by Brady v. Maryland.

It summarized the state appellate court’s treatment of the

Brady issue as follows:

The Wisconsin court of appeals summarized that

applicable law noting that due process requires disclosure only of evidence that is both favorable to the

accused and material to either guilt or punishment. As

an initial matter, the court of appeals noted that Ms.

Jones’s statement would not have been favorable to the

petitioner because it enlarged the amount of time for the

petitioner’s involvement in the tape-playing incident
14 No. 02-3055

and the confrontation, and was actually more damaging

evidence against the petitioner.

The court also distinguished Giglio v. United States,

405 U.S. 150 (1972), upon which the petitioner relied.

The court of appeals stated that Giglio dealt with the

State’s failure to disclose a deal with a key prosecution

witness that prevented the defendant from having evidence bearing on the witness’s credibility and bias and

that Ms. Jones’s changed account is not the type of

evidence bearing on credibility that requires disclosure.

The court further stated that in the case before it, the

defense had at its disposal, and did employ, all of Ms.

Jones’s prior inconsistent statements to impeach her

present account and to attack her credibility before the

jury.

Id. at 27 (internal citations omitted). 

The district court then reviewed the requirements of

Brady. The court stated that in order to succeed on a claim

of a Brady violation, “a defendant must establish that 1) the

prosecution suppressed or withheld evidence that 2) was

favorable and 3) material to the defense.” Id. at 28. The court

further noted that “constitutional error results from its

suppression by the government ‘if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result in the proceeding would have been different.’ ” Id. (quoting United States v. Bagley, 473 U.S. 667, 686

(1985)).

The court then considered whether the state court’s

determination with respect to the Brady issue was contrary

to federal law as articulated by the Supreme Court and

concluded that it was not:

The state court correctly articulated the law with

respect to the disclosure of Brady and Giglo [sic] evi-
No. 02-3055 15

dence. The application of such law to the circumstance

of this case was also correct. Significantly, this changed

testimony was disclosed at trial. Counsel for the petitioner was able to cross-examine Ms. Jones at length

regarding the change in her testimony. This cross examination began in the morning of trial and continued

after the noon break. Petitioner’s counsel had an additional opportunity to re-cross examine Ms. Jones again

that afternoon. The petitioner clearly had an ample

opportunity to cross-examine Ms. Jones with respect to

the change in her testimony.

Id. at 30 (internal citations omitted). Consequently, because

defense counsel had ample opportunity to address Jones’

altered testimony, no prejudice to Mr. Moore occurred, and

the state court was not acting contrary to federal law in

finding that there was no Brady violation.

Finally, the district court turned to the issue of whether

the state’s action in influencing Jones’ testimony constituted

prosecutorial misconduct and therefore a denial of due

process. With respect to this issue, the district court first

observed that there was a question of procedural default:

“[T]his claim was not pursued by the petitioner in the

Wisconsin court of appeals or in his petition for review

before the Wisconsin Supreme Court. As such, the petitioner

could be deemed to have procedurally defaulted this claim.

However, the respondent has not raised such contention.”

Id. at 31. Consequently, based on this court’s decision in

Henderson v. Thieret, 859 F.2d 492, 498 (7th Cir. 1988) (holding that a court is not permitted to override the State’s

implicit or explicit decision to forego a waiver defense), the

district court proceeded to the merits of the claim.

The district court determined that Mr. Moore was not

entitled to relief on this ground. The district court first re-
16 No. 02-3055

jected the State’s contention that there was no Supreme

Court precedent concerning a prosecutor allegedly influencing a witness to present knowingly false testimony: “It is

well established that it is as much a prosecutor’s duty to

refrain from improper methods calculated to produce a

wrongful conviction as it is to use every legitimate means to

bring about a just one. See Berger v. United States, 295 U.S. 78,

88 (1935).” Id. at 32. Furthermore, the court observed that

there was precedent to establish that a prosecutor’s failure

to correct knowingly false testimony of a principal witness

resulted in a due process violation. See Napue v. Illinois, 360

U.S. 264, 269 (1959). However, the court continued, there

was no contention that Jones’ testimony was false. As well,

the jury was privy to the circumstances which led to Jones’

change in testimony and, therefore, could assess any

credibility issues raised by the change. Consequently, the

district court determined, no violation of due process

similar to that in Napue had occurred, and Mr. Moore was

not entitled to habeas relief based on this authority.

II

DISCUSSION

A.

We first examine whether the district court erred in determining that the claims not submitted to the Supreme

Court of Wisconsin were procedurally defaulted.

“A state prisoner . . . may obtain federal habeas review of

his claim only if he has exhausted his state remedies and

avoided procedurally defaulting his claim.” Thomas v.

McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000). If a prisoner

procedurally defaulted his claim, 
No. 02-3055 17

he may obtain federal habeas relief only upon a showing of cause and prejudice for the default or upon a

showing that a failure to grant him relief would work a

fundamental miscarriage of justice. A fundamental

miscarriage of justice occurs when “a constitutional

violation has probably resulted in the conviction of one

who is actually innocent.”

Id. (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986);

additional internal citations omitted).

The district court held that Mr. Moore had procedurally

defaulted five of his eight claims by not including them

in his petition to the Supreme Court of Wisconsin, as required by O’Sullivan v. Boerckel, 526 U.S. 838 (1999). Mr.

Moore raises two issues with respect to this determination:

First, he argues that the rule of Boerckel should not apply to

habeas petitions arising out of Wisconsin because of the

Supreme Court of Wisconsin’s limited review; second, he

argues that, even if Boerckel does apply, he has shown

“cause” and “prejudice” to excuse his procedural default.

We shall address each of these submissions. 

1.

“Section 2254(c) provides that a habeas petitioner ‘shall

not be deemed to have exhausted the remedies available in

the courts of the State . . . if he has the right under the law of

the State to raise, by any available procedure, the question

presented.” Boerckel, 526 U.S. at 844. The Court in Boerckel

explained that this requirement does not mean that the

prisoner has to “invoke any possible avenue of state court

review,” such as repetitive post-conviction petitions and

extraordinary remedies. Id. at 844. Nevertheless, it held that

“a state prisoner must present his claims to a state supreme

court in a petition for discretionary review in order to
18 No. 02-3055

satisfy the exhaustion requirement.” Id. at 839-40. The Court

limited its holding, noting that 

nothing in our decision today requires the exhaustion of

any specific state remedy when a State has provided

that that remedy is unavailable. . . . The exhaustion

doctrine, in other words, turns on an inquiry into what

procedures are “available” under state law. In sum,

there is nothing in the exhaustion doctrine requiring

federal courts to ignore a state law or rule providing

that a given procedure is not available. We hold today

only that the creation of a discretionary review system

does not, without more, make review in the Illinois

Supreme Court unavailable.

Id. at 847-48.

In submitting that he is not required to present all his

contentions to the Supreme Court of Wisconsin, Mr. Moore

essentially argues that, under Wisconsin law, review is

so narrow as to be unavailable. Mr. Moore relies on Tucker

v. Department of Corrections, 301 F.3d 1281 (11th Cir. 2002).

There, the Eleventh Circuit determined that Boerckel did

not require the invocation of the certification rule of the

Supreme Court of Florida. Notably, this procedure is extremely restrictive. According to Tucker, the Supreme Court

of Florida may only review cases when there is “an actual or

potential conflict within the law of the state” to be resolved

by an appeal or when a lower court certifies a question “of

great public importance” to the Supreme Court of Florida.

Id. at 1283. Thus, a petitioner has no general right to appeal

to the Supreme Court of Florida absent either certification of

a question by an intermediate appellate court or a conflict in

state law. Because the issues presented in Tucker did not

involve a conflict in state law, the Eleventh Circuit determined that state supreme court review was effectively

unavailable to the petitioner. It was the prerogative of the
No. 02-3055 19

intermediate appellate court, not the prisoner, to certify

specific issues, and then only when the issue was of great

public importance.

The procedure in Wisconsin is far less restrictive. Wisconsin Statutes § 809.62 provides that “[a] party may file with

the supreme court a petition for review of an adverse

decision of the court of appeals pursuant to s. 808.10 within 30 days of the decision of the court of appeals.” Thus

the ability to petition the court is available. Mr. Moore focuses on the next sentence, which states: “Supreme court

review is a matter of judicial discretion, not of right, and

will be granted only when special and important reasons are

presented.” Wis. Stat. § 809.62. Mr. Moore argues that this

provision contrasts with the Illinois provision at issue in

Boerckel, because the Illinois statute states that “a petition for

leave to appeal to the Supreme Court from the Appellate

Court may be filed by any party . . . as a matter of right.

Whether such a petition will be granted is a matter of sound

judicial discretion.” ILCS S. Ct. Rule 315(a). We do not

believe that these provisions are significantly different for

present purposes. Both provide for a right to file a petition,

but make actual review by the state’s highest court a matter

left to that court’s discretion. This point was made in

Boerckel itself:

[A] petition for discretionary review in Illinois’ Supreme

Court is a normal, simple, and established part of the

State’s appellate review process. In the words of the

statute, state prisoners have “the right . . . to raise” their

claims through a petition for discretionary review in the

State’s highest court. § 2254(c). Granted, as Boerckel

contends, . . . he has no right to review in the Illinois

Supreme Court, but he does have a “right . . . to raise”

his claims before that court. That is all § 2254(c) requires.
20 No. 02-3055

Boerckel, 526 U.S. at 845. In Wisconsin, state “Supreme Court

review is a matter of judicial discretion, not of right.”

Although the Wisconsin statute sets forth certain criteria

(including a “real and significant question of federal or state

constitutional law,” etc.), those criteria neither “control[] nor

fully measur[e] the court’s discretion,” but rather “indicate

criteria that will be considered.” Wis. Stat. § 809.62(1). Thus,

it is a discretionary system like the Illinois system, and not

like the Florida system discussed in Tucker, in which the

Supreme Court of Florida was rigidly limited to two very

well-defined types of cases. Thus Boerckel applies.

2.

Mr. Moore next submits that his procedural default ought

to be excused because he has shown “cause” and “prejudice” for his failure to apprise the Supreme Court of

Wisconsin of the contentions that he omitted from his petition to that court. Mr. Moore contends that there is cause

because (1) he relied upon existing Seventh Circuit precedent; and (2) his counsel attempted to comply with the

Supreme Court of Wisconsin’s rules. He submits that he can

demonstrate “prejudice” because the contentions that he

omitted before the Supreme Court of Wisconsin are meritorious.

a.

Mr. Moore’s submission that he relied in good faith on

existing Seventh Circuit precedent is grounded in Murray v.

Carrier, 477 U.S. 478 (1986). In that case, the Supreme Court

stated that “the existence of cause for a procedural default

must ordinarily turn on whether the prisoner can show that
No. 02-3055 21

3 See Boerckel v. O’Sullivan, 135 F.3d 1194, 1198 (7th Cir. 1998)

(reviewing history of the Seventh Circuit rule), rev’d, 526 U.S. 838

(1999); Hogan v. McBride, 74 F.3d 144, 146 (7th Cir. 1996), modified

on other grounds on denial of rehearing, 79 F.3d 578 (7th Cir 1996).

some objective factor external to the defense impeded

counsel’s efforts to comply with the State’s procedural rule,”

such as “showing that the factual or legal basis for a claim

was not reasonably available to counsel . . . or that some

interference by officials made compliance impracticable.” Id.

at 488 (internal quotation marks and citations omitted). Mr.

Moore submits that his counsel relied upon then-existing

Seventh Circuit precedent, overruled by Boerckel, that had

maintained that it was not necessary to raise an issue in a

discretionary appeal in the state judicial system in order to

preserve the matter for review in a federal habeas corpus

proceeding.3

 In his view, this reliance constitutes “cause.” 

We cannot accept this argument. Our precedent simply

stated that a petitioner need not include all of his claims in

his petition to a state’s highest court. This rule is hardly an

“objective factor external to the defense [that] impeded

counsel’s efforts to comply with the State’s procedural rule,”

such as “showing that the factual or legal basis for a claim

was not reasonably available to counsel.” Id. Mr. Moore’s

counsel still was able, under Wisconsin law, to bring forth

all claims in the petition; our precedent merely said that

counsel did not have to do so in order to avoid a procedural

default.

On this point, we are in agreement with our colleagues on

the United States Court of Appeals for the Eleventh Circuit.

In Smith v. Jones, 256 F.3d 1135 (11th Cir. 2001), cert. denied,

534 U.S. 1136 (2002), that court framed the question as

whether “erroneous circuit law can serve as cause to excuse
22 No. 02-3055

a failure to comply with a retrospectively applicable rule

announced in a Supreme Court decision which overrules

that circuit law.” Id. at 1142. The Eleventh Circuit determined that reliance on prior erroneous Eleventh Circuit

precedent was not “cause.” The court relied in part on the

“Supreme Court’s application of its new rule to the Boerckel

case itself,” which “requires that we apply that rule to this

and all other pending cases.” Id. at 1144 (noting that the

court in Boerckel itself applied its decision retroactively

against Boerckel, concluding that he had procedurally

defaulted). The Eleventh Circuit also noted that, under the

Carrier standard, the “subsequently overruled circuit decision . . . did not actually ‘impede’ the effort to comply with

any state court rule, but instead removed an incentive for

compliance by indicating (erroneously) that a particular

action was not necessary for federal habeas review purposes.” Id. at 1145. Finally, the Eleventh Circuit stated that

a holding that reliance upon prior law is cause would

effectively make the applicability of Boerckel and some

other Supreme Court habeas decision “shift and spring

according to the particular equities of individual parties’ claims of actual reliance on an old rule and of harm

from a retroactive application of the new rule.” Harper

[v. Virginia Dep’t of Taxation, 509 U.S. 86, 96 (1993)] . . .

. The Supreme Court told us in Harper that is something

not to be done.

Id. at 1145. 

Although we have not directly addressed the issue before

us today, we clearly have held that Boerckel is retroactive in

application, even though prior to Boerckel, our circuit precedent stated a rule opposite to that articulated by the Supreme Court in that case. See Rittenhouse v. Battles, 263 F.3d

689, 697 (7th Cir. 2001); see also Smith v. Jones, 256 F.3d 1135,
No. 02-3055 23

1142 n.7 (11th Cir. 2001) (detailing the evolution of our

precedent on the issue of whether all claims need be

included in the petition to the highest state court up until

Boerckel). In Rittenhouse, we reversed the district court that

had held that there was no procedural default because

“Rittenhouse [had] filed his petition when the decisions of

this court held that he did not default issues if he left them

out of this petition for leave to appeal.” Rittenhouse, 263 F.3d

at 697 (internal quotation marks and citations omitted). The

district court had determined that it “would not default

Rittenhouse for following the then existing procedural law

of the [Seventh] Circuit.” Id. (internal quotation marks and

citations omitted). Although in Rittenhouse we did not

discuss “cause,” we gave no hint that the petitioner’s

reliance on pre-Boerckel decisions could possibly constitute

cause. See id.

b.

Mr. Moore further submits that, in omitting this issue

from his petition to the Supreme Court of Wisconsin, his

counsel simply was attempting to comply with Wisconsin’s

rules. This attempt, he argues, ought to constitute “cause.”

Mr. Moore argues that his counsel failed to raise all of his

claims in the petition because he wanted to include in his

petition only those claims that met the criteria set forth in

the Wisconsin rules. In presenting this argument, Mr. Moore

relies on the dissent in Boerckel and our overturned Boerckel

decision for this argument. See Petitioner’s Br. at 41-44. We

are constrained to follow the majority holding.

3.

Even if we were able to say that Mr. Moore had made out

a case for “cause,” we would find it difficult, on the record
24 No. 02-3055

4 Mr. Moore does not fully develop his arguments for prejudice.

In his own words, “[t]he claims not addressed by the district

court are neither presented nor briefed in their entirety but are

included in a prima facie form to support petitioner’s argument

that he was prejudiced by the district court’s failure to review his

barred claims on the merits.” Petitioner’s Br. at 58 n.15.

before us, to say that Mr. Moore has made a sufficient case

to demonstrate “prejudice.”4

a.

Mr. Moore claims there was insufficient evidence to

convict him. We considered a similar claim in a habeas petition filed by one of Mr. Moore’s codefendants. See

Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001). In that instance, we noted that our inquiry is whether the Wisconsin

Court of Appeals’ decision “that a rational jury could have

convicted [the defendant] based on this record resulted from

an objectively unreasonable application of Jackson [v.

Virginia, 443 U.S. 307 (1979)].” Id. at 690. As we noted in

Piaskowski, Jackson explained that “due process requires

reversal of a criminal conviction if, viewing the evidence in

the light most favorable to the prosecution, no ‘rational trier

of fact could have found the essential elements of the crime

beyond a reasonable doubt.’ ” Id. (quoting Jackson, 443 U.S.

at 319).

We determined there that the evidence was insufficient to

convict Piaskowski. However, the evidence concerning Mr.

Moore and Piaskowski is different. Gilliam testified to a

statement made by Mr. Moore that Mr. Moore had said he

helped in the beating of Monfils. There was no evidence that

Piaskowski had participated in the beating or even in the

confrontation. We stated: 
No. 02-3055 25

The most serious error the court of appeals made is that

it found—without reference to any supporting evidence—that Piaskowski “kicked and beat Monfils”

during the confrontation near the bubbler. If the evidence supported this assertion, we would agree that a

rational jury could have convicted Piaskowski and that

an appellate court reasonably could have affirmed his

conviction.

Id. at 693-94. Such evidence exists against Mr. Moore.

b.

 Mr. Moore submits that the state appellate court committed constitutional error in admitting Kutska’s statement that

directly implicated Mr. Moore by name. See Bruton v. United

States, 391 U.S. 123 (1968) (recognizing that the admission of

a codefendant’s confession that inculpates a joint defendant

denies the defendant his Sixth Amendment right to confrontation); Richardson v. Marsh, 481 U.S. 200 (1987); and Lilly v.

Virginia, 527 U.S. 116 (1999). Kellner testified before the jury

that Kutska, on July 4, 1994, had described the confrontation

between Monfils and the other employees. Kellner’s testimony concerning Kutska’s statement repeatedly and

directly referred to Mr. Moore by name as participating in

the confrontation. See Tr. 10/5/1995 at 3, 6-9, 15-17. Indeed,

in our prior adjudication dealing with Monfils’ murder,

although we ultimately held that there was insufficient

evidence to convict Piaskowski, we nevertheless noted in

passing “the weighty Sixth Amendment Confrontation

Clause problems inherent in the use of the testimony of

Kellner and Gilliam against Piaskowski.” Piaskowski, 256

F.3d at 692.

As the state court determined, however, Kutska testified

at trial, thus curing any Bruton error. As the Supreme Court
26 No. 02-3055

held in Nelson v. O’Neil, 402 U.S. 622 (1971), a defendant’s

confrontation clause rights are “not violated by admitting a

declarant’s out-of-court statements, as long as the declarant

is testifying as a witness and subject to full and effective

cross-examination.” Id. at 626 (internal quotation marks and

citations omitted). There is no claim here that Kutska was

not subject to full and effective cross-examination.

c.

Mr. Moore next submits that the trial court denied Mr.

Moore a fair trial by excluding the defense computer-generated videotape.

“On a petition for writ of habeas corpus, a federal court

will not review evidentiary questions unless there is a resultant denial of fundamental fairness or the denial of a

specific constitutional right.” Stomner v. Kolb, 903 F.2d 1123,

1128 (7th Cir. 1990) (internal quotation marks and citations

omitted). The Supreme Court has recognized that “the

Constitution leaves to the judges who must make these

decisions ‘wide latitude’ to exclude evidence that . . . . poses

an undue risk of harassment, prejudice, [or] confusion of the

issues.” Crane v. Kentucky, 476 U.S. 683, 689 (1986) (internal

quotation marks and citations omitted). The state court

found that the computer-generated version would mislead

the jury because it did not accurately account for possible

movement by persons or for placement of objects in the

room. The fact that the video failed to account for essential

variables and thus might mislead the jury is a “valid state

justification” for having excluded the evidence. Crane, 476

U.S. at 690.
No. 02-3055 27

d.

Mr. Moore next claims that his counsel was constitutionally ineffective. To establish an ineffective assistance of

counsel claim, Mr. Moore must demonstrate that (1) his

“counsel’s representation fell below an objective standard of

reasonableness; and (2) that he was prejudiced in that

“counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland

v. Washington, 466 U.S. 668, 687-88 (1984). Mr. Moore’s

argument that he was denied effective assistance of counsel

is based on his counsel’s failure to challenge, other than

through cross-examination, Jones’ testimony about the

changed time line. Mr. Moore argues that his counsel should

have requested a continuance, sought a mistrial, or moved

that the testimony be struck. Rather, Mr. Moore’s counsel

cross-examined Jones and showed that she repeatedly had

testified under oath to a contrary time frame. Mr. Moore’s

counsel’s decision to use cross-examination to alleviate the

new testimony did not constitute “representation [that] fell

below an objective standard of reasonableness.” Id. Strickland permits counsel to make strategic decisions and this

decision appears to fit well into that category. 

B.

We now turn to those claims that were properly before

the district court and on which that court ruled on the

merits. Under the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254, (“AEDPA”), “habeas relief may

be granted if a state court’s adjudication of a matter ‘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
28 No. 02-3055

States.’ ” Dixon v. Snyder, 266 F.3d 693, 699 (7th Cir. 2001)

(quoting 28 U.S.C. § 2254(d)(1)). 

A state court decision is “contrary to” Supreme Court

precedent [1] “if the state court arrives at a conclusion

opposite to that reached by the Supreme Court on a

question of law” or [2] “if the state court confronts facts

that are materially indistinguishable from a relevant

Supreme Court precedent and arrives at a result opposite to [that reached by the Supreme Court].” An

“unreasonable application” of Supreme Court precedent

occurs when “the state court identifies the correct

governing legal rule . . . but unreasonably applies it to

the facts of the particular state prisoner’s case” or “if the

state court either unreasonably extends a legal principle

from [the Court’s] precedent to a new context where it

should not apply or unreasonably refuses to extend that

principle to a new context where it should apply.”

Id. at 700 (quoting Williams v. Taylor, 529 U.S. 362, 405, 407

(2000) (footnotes and additional citations omitted)).

“We review a state court decision de novo to determine

whether it was ‘contrary to’ Supreme Court precedent;

however, we defer to reasonable state court decisions.” Id.

Thus “[i]n order to issue a writ of habeas corpus, the state

court decision must be both ‘incorrect and unreasonable.’ ”

Id. (quoting Washington v. Smith, 219 F.3d 620, 628 (7th Cir.

2000)).

1.

The Wisconsin Court of Appeals held that Mr. Moore was

not entitled to a new trial based on the newly discovered

evidence of Kellner’s partial recantation of his trial testi-
No. 02-3055 29

mony concerning Kutska’s Fourth of July statement. Under

Wisconsin law, to be entitled to a new trial on the basis of

newly discovered evidence, the defendant must show that

“ ‘it is reasonably probable that a different result would be

reached at a new trial.’ ” R.2, Ex.A at 10 (quoting State v.

Terrance J.W., 550 N.W.2d 445, 447 (Wis. Ct. App. 1996)). The

Wisconsin Court of Appeals affirmed the trial court’s denial

of a new trial to Mr. Moore. It could find no evidence

indicating that the trial court clearly had erred in finding

that Kellner’s recantation did not create a reasonable

probability of a different outcome at trial. See R.2, Ex.A at

12-14. Mr. Moore claims that the failure to grant him a new

trial denied him due process of law in light of the new

evidence of Kellner’s recantation.

“As a general rule, newly discovered evidence that bears

only on the question of guilt or innocence is not reviewable

by a federal court on a motion for habeas corpus relief.”

Coogan v. McCaughtry, 958 F.2d 793, 801 (7th Cir. 1992).

Nonetheless, we have held that “in some situations newly

discovered evidence is so compelling that it would be a

violation of the fundamental fairness embodied in the Due

Process Clause not to afford a defendant a new trial in

which the evidence could be considered.” Id. (internal

quotation marks and citations omitted). We have noted that

[w]here the “newly discovered evidence” consists of

witness recantations of trial testimony or confessions by

others of the crime, most courts decline to consider it in

the absence of any showing that the prosecution knowingly proffered false testimony or failed to disclose

exculpatory evidence, or that petitioner’s counsel was

ineffective.

Id. In the words of the Supreme Court, 
30 No. 02-3055

5 Although this contention, even if accurate, would not be sufficient to support habeas relief, we note that the record refutes it

and supports the Wisconsin courts’ findings that the recanted

testimony did not create a reasonable probability of a different

outcome at trial for Mr. Moore. First, other evidence was admitted at trial of Mr. Moore’s participation in the confrontation,

such as Mr. Moore’s statement to Gilliam that he repeatedly hit

Monfils. See Tr. 10/13/1995 at 170-71. Second, even under the

recanted version of Kellner’s testimony, Kellner identified three

persons: Kutska, Hirn and Mr. Moore. See Tr. 2/12/1997 at 53

(continued...)

[c]laims of actual innocence based on newly discovered

evidence have never been held to state a ground for

federal relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. . . . This rule is grounded in the principle that

federal habeas courts sit to ensure that individuals are

not imprisoned in violation of the Constitution—not to

correct errors of fact.

Herrera v. Collins, 506 U.S. 390, 400 (1993). 

Under AEDPA, as noted above, Mr. Moore must show

that the adjudication “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.” 28 U.S.C. § 2254(d)(1). Mr.

Moore has not even attempted to meet this standard. His

primary contentions to the district court and to this court

are that the Wisconsin appellate court erred in finding that

the recanted testimony did not create a reasonable probability of a different outcome at trial, see Petitioner’s Br. at 56-59,

and that the recantation would have had an enormous

impact on the trial evidence against Mr. Moore, see id. at 59-

62.5

 Neither of these contentions demonstrate that the
No. 02-3055 31

5 (...continued)

(Kellner stating during his recantation that, in reality, Kutska

drew a diagram in which he “put Mike Hirn there, he put Rey

Moore there, and then he didn’t put anybody else there” and that

“[h]e just had spots” for other unidentified participants). Mr.

Moore, in his reply brief, also points to language we employed

in our opinion with respect to an appeal of his codefendant,

Piaskowski, that “Kutska’s account implicated only Hirn by name

as a participant in the beating of Monfils.” Reply Br. at 6. Yet, in

that decision, Piaskowski v. Bett, 256 F.3d 687, 690, 692 (7th Cir.

2001), we stated twice that Kellner’s recanted testimony of

Kutska’s statement only identified “himself, Hirn and Moore.” Id.

at 690 (emphasis added); see id. at 692 (“Kellner recanted a key

portion of his trial testimony . . . during postconviction proceedings, claiming that Kutska did not identify any member of the

group that confronted Monfils other than himself, Hirn, and

Moore.”).

6 Apparently in an attempt to supply the needed “underlying

constitutional violation” that the district court noted was absent

from Mr. Moore’s habeas petition to the district court, see R.37 at

25, Mr. Moore also makes a claim that the investigator’s actions

in badgering Kellner to make a statement prior to trial constituted

an independent constitutional violation under Washington v.

Texas, 388 U.S. 14, 19 (1967). He claims the investigator’s actions

denied him the right to present his case. This argument is

tenuous at best. Mr. Moore has not identified at all the offensive

conduct, nor has he provided citation to the record concerning

any illegal treatment by the detective.

We note that, even if our review were not limited by the

AEDPA standard, Mr. Moore has failed to even argue to this

(continued...)

Wisconsin appellate court’s affirmance under Wisconsin law

of the trial court’s denial of a new trial was contrary to, or

involved an unreasonable application of, clearly established

Supreme Court precedent.6
32 No. 02-3055

6 (...continued)

court that, with regard to Kellner’s original testimony and recantation, “the prosecution knowingly proffered false testimony or

failed to discolse exculpatory evidence, or that petitioner’s counsel was ineffective.” Coogan, 958 F.2d at 801. There was evidence

that Kellner felt badgered and threatened with the loss of custody

of his children by the investigating police officer into giving his

initial statement and that this situation was the cause for his

initial partially “untruthful” statement. Nevertheless, Kellner’s

recantation does not indicate that the prosecution knowingly used

false testimony (and Mr. Moore did not argue that the prosecution did use false testimony), in light of the fact that Kellner

himself testified that he never told the District Attorney or the

prosecution that the investigating police officer had threatened or

badgered him into giving the statement or that the contents of his

statement to the police were false; although he testified that he

did tell the District Attorney and the prosecution that he was

unhappy with the statement without telling them that anything

in it was false. The District Attorney and prosecution explained

that Kellner could fix any discrepancies or problems with the

statement when Kellner testified in court. See Tr. 2/12/1997 at

76-77. Kellner testified that, during the trial, he inquired of the

prosecutor when they would ask him about correcting some of

the problems with his written statement to the police; yet he

failed to inform or indicate to the prosecution that he was currently giving untruthful testimony in court. See id. at 79-80.

2.

Mr. Moore claims that the prosecution’s failure to disclose

Jones’ change in testimony in a timely manner denied him

due process of law, contrary to the Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963). The Wisconsin

appellate court held that there was no Brady problem

because Jones’ change in testimony concerning the time line

of events and whether she witnessed a turnover or a paper

break was “more damaging” to Mr. Moore’s case rather
No. 02-3055 33

than exculpatory or “favorable,” and thus Brady did not

apply. R.2, Ex.A at 43. Additionally, the Wisconsin appellate

court noted that the defense did not lose its opportunity to

use the new statement to impeach Jones, but that “the

defense had at its disposal, and did employ, all of Jones’s

prior inconsistent statements to impeach her present

account and attack her credibility before the jury.” Id. at 44.

Moreover, the Wisconsin appellate court found that Jones’

statement was not material as defined by Brady because

“there is not a reasonable probability that had the prosecution given the information to Moore, a different result

would have occurred” because “Jones still would have been

subject to cross-examination using the same methods

actually employed by Moore’s counsel.” Id.

Under Brady v. Maryland, “ ‘the suppression by the prosecution of evidence favorable to an accused . . . violates due

process where the evidence is material either to guilt or to

punishment, irrespective of the good faith or bad faith of the

prosecution.’ ” Kyles v. Whitley, 514 U.S. 419, 433 (1995)

(quoting Brady, 373 U.S. at 87). Thus, “[t]he holding in Brady

v. Maryland requires disclosure only of evidence that is both

favorable to the accused and material either to guilt or to

punishment.” United States v. Bagley, 473 U.S. 667, 674 (1985)

(internal quotation marks omitted). Favorable evidence

under Brady, which the prosecution is required to disclose

includes both “exculpatory and impeachment evidence.”

Kyles, 514 U.S. at 433. Evidence is material if there is “a

reasonable probability that, had it not been for the improprieties, the defendants would have been acquitted.” United

States v. Boyd, 55 F.3d 239, 245 (7th Cir. 1995). 

Moreover, 

[a]lthough the government is required to turn over

exculpatory information, a delay in doing so violates

due process only if the delay prevent(ed) the defendant
34 No. 02-3055

from receiving a fair trial. A defendant receives a fair

trial as long as disclosure is made before it is too late for

the defendant to make use of any benefits of the evidence.

United States v. Perez, 870 F.2d 1222, 1228 (7th Cir. 1989)

(internal citations and quotation marks omitted). In fact,

there “is nothing in Brady . . . to require that such disclosures be made before trial” because “[a]s long as ultimate

disclosure is made before it is too late for the defendant[] to

make use of any benefits of the evidence, Due Process is

satisfied.” United States v. Allain, 671 F.2d 248, 255 (7th Cir.

1982) (internal quotation marks and citations omitted). 

Mr. Moore submits that the prosecution was required

under Brady to disclose that, when she testified at trial,

Connie Jones was going to change her testimony concerning

her time line of events. 

Here, even assuming the material qualifies as being

“favorable,” it appears that Mr. Moore’s counsel was able to

use the prior inconsistent statements and perform an

effective cross-examination of Jones. Although the prosecution “delayed” giving the information to Mr. Moore, “defense counsel was able to make good use of the impeaching

evidence in his vigorous cross-examination of the prosecution witness” and thus “the defendant’s due process rights

were not violated” because there “is nothing in Brady . . .

to require that such disclosures be made before trial.” Allain,

671 F.2d at 255. Additionally, we agree with the Wisconsin

appellate court that the evidence was not material because

there was not “a reasonable probability that, had it not been

for the improprieties, the defendants would have been

acquitted.” United States v. Boyd, 55 F.3d 239, 245 (1995). Mr.

Moore has brought forth no evidence that, had the prosecution immediately informed Mr. Moore’s counsel of the

change in Jones’ time line, the result at trial would have
No. 02-3055 35

7 It appears that Mr. Moore did not raise this claim before the

Wisconsin Court of Appeals or the Supreme Court of Wisconsin.

However, as noted by the district court, the respondent does not

argue (or even mention) that this claim is procedurally defaulted.

Consequently, we will address the merits of this claim.

been different. As the Wisconsin appellate court noted, the

defense counsel would have impeached Jones with her prior

statements, exactly as counsel was able to do at trial. See Tr.

10/3/1995 at 99-126.

Consequently, we hold that the Wisconsin appellate court

decision was not contrary to or an unreasonable application

of Brady or its progeny.

3.

Mr. Moore’s final argument also relates to Jones’ changed

testimony.7

 Relying on Napue v. Illinois, 360 U.S. 264 (1959)

and Berger v. United States, 295 U.S. 78 (1935), Mr. Moore

argues that the prosecution’s conduct in “suggesting” that

Jones may have seen a paper break rather than a turnover

denied Mr. Moore due process. Napue stands for the proposition that a prosecutor cannot “knowingly use false

evidence,” Napue, 360 U.S. at 269; Berger stands for the

proposition that the prosecution cannot engage in “pronounced and persistent” misconduct and has a “duty to

refrain from improper methods calculated to produce a

wrongful conviction,” Berger, 295 U.S. at 88-89. The prosecution here did not knowingly introduce any false testimony

by allowing Jones to change her time line. Jones testified

that her reason for going to the factory and viewing the

procedures and subsequently changing her time line was

that she wanted to be as accurate as possible; moreover, she

still testified that she was “unsure” as to which procedure
36 No. 02-3055

she had seen. Also, the prosecution did not badger or harass

or otherwise act improperly to procure this testimony, as

was done in Berger. Consequently, we cannot conclude that

Mr. Moore is entitled to relief on this basis.

Conclusion

 For the foregoing reasons, we believe that the district

court committed no reversible error in its adjudication of

this petition for relief under 28 U.S.C. § 2254. Accordingly,

the judgment of the district court is affirmed.

AFFIRMED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-29-03