* Alan M. Uchtman, the current warden of the Menard Correctional Center where Hinton is presently confined, has been

substituted for Eugene McAdory as respondent pursuant to Fed.

R. App. P. 43(c).

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-2729

LEONARD HINTON,

Petitioner-Appellant,

v.

ALAN M. UCHTMAN,

*

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 1980—Elaine E. Bucklo, Judge.

____________

ARGUED MAY 15, 2003—DECIDED JANUARY 26, 2005

____________

Before BAUER, COFFEY, and WOOD, Circuit Judges.

COFFEY, Circuit Judge. On September 13, 1985, Leonard

Hinton was convicted of murdering John Durham, Dorothy

McDaniel, and Edward Bradley and sentenced to life in

prison. The Illinois Appellate Court, on direct appeal, up-
2 No. 02-2729

held Hinton’s conviction on three counts of murder. Hinton

responded with the filing of a pro se post-conviction petition

in the circuit court alleging a laundry list of constitutional

violations, which was denied and affirmed by the Appellate

Court of Illinois. Thereafter, Hinton filed a petition for a writ

of habeas corpus in federal court alleging that the police

obtained his signed confession through physical coercion,

abuse and police brutality and claimed that the admission

of his confession at trial was a violation of his Fifth Amendment rights. The district court ruled that Hinton’s Fifth

Amendment claim did not warrant habeas relief; concluding

that any error arising from the admission of his confession

was harmless when one considers that the State produced

an overwhelming amount of evidence of his guilt separate

and distinct from the confession. We affirm.

I. Background

In the early morning hours following Thanksgiving Day

1983 in Chicago, Illinois, John Durham, Dorothy McDaniel,

and Edward Bradley were in the kitchen of Durham’s apartment when Hinton stopped in to collect a drug debt from

Durham. According to Hinton, after Durham refused to pay

the debt Hinton pulled a loaded .38 revolver from his coat.

Durham allegedly tried to grab the weapon, and Hinton shot

him in the chest and head, killing Durham. Hinton also

shot and killed McDaniel and Bradley, striking each of them

behind the ear at the base of the skull (gangland style).

Chicago police officers called to the scene found all three

victims lying in a pool of blood.

At this time, the officers’ only lead as to the identity of

the murderer came from one of Durham’s neighbors, Diane

Staton, who told police that immediately after hearing shots

fired from the direction of Durham’s apartment, shortly

after 12 a.m. on November 25, 1983, she observed a man

with a gun walking backwards out of Durham’s apartment.
No. 02-2729 3

1 Staton’s identification was made around 10 p.m. on November 25,

1983, less than 24 hours after the triple murder.

Staton told police that she had viewed the suspect from her

upstairs bedroom window across the street from Durham’s

apartment. Staton went on to explain that the entire area

around Durham’s apartment was well-lit and she had an

opportunity to see the man’s face when he turned around

and looked in her direction as he was fleeing from the scene.

Staton’s initial description of the man was that he was black,

about six-foot-two, between 180 and 200 pounds and in his

mid-twenties. Staton subsequently identified Hinton as the

man she saw that night in a police lineup, as well as in

court during the trial. 

Later that day, November 25, 1983, at about 5 p.m., the

police arrived at Hinton’s apartment and, after investigating an unrelated aggravated battery charge, they arrested

him, advised him of his Miranda rights and conveyed him

to Area 2 police headquarters (“Area 2”). While Hinton was

detained on the battery charge, an undisclosed informant

gave police information that led them to suspect that Hinton

was responsible for the three murders. At this time police

also became aware that Hinton matched the physical description of the person Staton had observed exiting Durham’s

apartment. Armed with this information, the police brought

Staton to the station and arranged a physical lineup with

the suspect, Hinton, and four other African-American males

similar in age, stature, build and complexion to ascertain

whether Staton could identify Hinton as the person she witnessed exiting the murder scene. Upon viewing the lineup,

Staton identified Hinton as the individual she observed

standing in Durham’s doorway with a gun in his hand shortly

after 12 a.m. on the morning of November 25, 1983.1

After her positive identification of Hinton in the lineup,

police once again advised the suspect, Hinton, of his

Miranda rights and proceeded to question him about the
4 No. 02-2729

triple homicide. In the course of their investigation the

officers questioned David Dixon, one of Hinton’s associates.

Dixon denied any involvement in the murders, but revealed

that shortly after the murders Hinton told him that he had

just shot a couple of people and asked Dixon to sell his .38-

caliber gun. Dixon went on to tell the police that, at

Hinton’s direction, he had traded the gun to a man he knew

named James Randall for cocaine. Thereafter, the officers

questioned Randall, who produced the .38-caliber weapon

and confirmed that he had received it from Dixon.

With the suspected murder weapon in police custody

(ballistics tests later established that Hinton’s .38 was the

murder weapon), the police continued to question Hinton

about the murders. Initially, Hinton denied being present

at the murder scene and came up with an alibi, telling police and Asst. State’s Attorney Lori Levin (“A.S.A. Levin”),

who had been called in to take Hinton’s statement, that he

was at home playing cards with his family on the evening

of the murders. However, Hinton’s family refused to corroborate his fabricated alibi and, after police confronted him

with this information, he changed his story and admitted

that he was present at the scene of the murders and that he

was responsible for the deaths of Durham, Bradley, and

McDaniel. 

Following his confession Hinton was interviewed for a

second time by A.S.A. Levin, on November 27, 1983, at 3:30

p.m., in the presence of a stenographer. During the interview, Hinton gave another, this time more detailed “confession” in which he accepted responsibility for the three

murders. However, in this statement Hinton attempted to

paint an implausible picture as to how the homicides

occurred. Hinton told A.S.A. Levin that he shot and killed

Durham in self defense during an altercation the two had

over a drug debt and that Bradley and McDaniel had been

shot “accidently.” According to Hinton, he went to Durham’s

house to collect a drug debt, but encountered Durham,

Bradley and McDaniel when he entered the kitchen to
No. 02-2729 5

2 This time period includes the additional time he was confined

(continued...)

demand his money. Durham refused to pay the drug debt

and ordered Hinton to leave. Hinton next stated that he “got

[his loaded] .38 [caliber gun] out of [his] coat,” and “cocked it”

(the gun’s hammer), at which time Durham allegedly made

an attempt to grab the weapon and the two started fighting.

As they struggled, Hinton claimed his weapon just “went off ”

four times, hitting both McDaniel and Bradley, before he

shot Durham directly in the chest. After being shot once,

Hinton recounted that Durham staggered to his feet and he

(Hinton) shot him again before exiting the house. However,

Hinton’s description of events was in sharp contrast to the

physical evidence the police discovered about the executionstyle slayings during their investigation of the crime scene.

After Hinton’s statement was transcribed by the stenographer, A.S.A. Levin read the statement aloud to Hinton and

suggested that he follow along so that he could make any

changes that he thought were needed to accurately reflect the

content of his transcribed statement. Hinton proceeded to

read, approve and initial each page; and then duly signed

the last page of the document. Shortly thereafter, Hinton

was charged with the murders of Durham, McDaniel, and

Bradley, and entered a plea of not guilty to each count.

Hinton then filed a pretrial motion to suppress his written

confession statement given to Levin, claiming that it was

involuntary because it was the product of police brutality.

A. Suppression Hearing

The trial judge held a hearing on June 11, 1985 in response to Hinton’s motion to suppress. During the hearing,

Hinton testified on direct examination that he was repeatedly physically abused and assaulted by police officers

during the nearly forty-six hours he was in custody2

 before
6 No. 02-2729

2 (...continued)

while questioned on the aggravated battery charge. Police did not

begin questioning Hinton concerning the murders until after

Staton viewed the police lineup.

3 In his testimony at the suppression hearing, Hinton referred to

being cut on his chin and then bleeding onto his “jersey” a number

of times. However, the record is clear in reflecting that Hinton did

not introduce his alleged “blood-stained jersey” at any time during

his suppression hearing. Thus, this “evidence” was not before the

court when it ruled against Hinton on the motion to suppress.

he gave his confession. He alleged that while he was handcuffed to a wall in the interrogation room, officers repeatedly kicked him in the stomach, slapped him in the face,

and punched him in the head. Hinton further stated that,

at one point during his confinement, officers placed a plastic

bag over his head and deprived him of air, denied him

water and food, and prohibited him from using the bathroom for a period of eighteen hours. Hinton testified that he

finally yielded to the police officers’ demands and gave a

confession statement to Levin only after officers had

escorted him down to the basement of the police station and

applied an electric shock rod to his genitals and his rectum—

Hinton said he confessed to the three murders within a short

period of time after this episode allegedly occurred. However, when questioned on cross-examination about whether

he had truly sustained any injuries from the alleged assaults,

Hinton admitted that he was not bleeding nor did he have

any bruises on his body (after allegedly being assaulted, hit

in the head and kicked in the stomach repeatedly). Nonetheless, Hinton went on to state that after one officer allegedly struck him on the chin, he did have a laceration on

his face that bled onto the “jersey” he was wearing at the

time.3

 Later in the suppression hearing, the prosecutors

asked Hinton whether the statement he had given to Levin

concerning the murders was fabricated. Hinton replied that

he “made [up] the whole [confession] statement,” and that

he was “never there at the scene of the murder[s].”
No. 02-2729 7

After Hinton finished testifying, the State called a number of rebuttal witnesses, including a Lt. Jon Burge of the

Chicago Police Department, the officer in charge of the Area

2 precinct at the time of Hinton’s arrest and interrogation,

who testified that he had neither threatened nor assaulted

Hinton at any time, nor had he witnessed any other officer

assault Hinton. Additionally, police officers Leonard

Bajenski, Thomas Krippel, and Patrick Mokry—all of whom

were present during Hinton’s interrogation—stated that

they had neither struck nor assaulted him, nor did they

threaten him in any manner at any time before, during, or

after his questioning. The officers further testified that,

although Hinton was detained on the aggravated battery

charge for nearly two days before he was charged with the

murders, he was questioned about the murders on only five

occasions, and each period of questioning only lasted

between ten and forty-five minutes. During the remaining

time Hinton was in custody (while the officers questioned

witnesses and continued to investigate the crime scene), the

officers stated that Hinton was allowed to sleep if he wished

and that he was fed and given soda on several occasions.

Assistant State’s Attorney Levin likewise testified at the

suppression hearing that, after she had properly Mirandized

Hinton, he acknowledged that “he understood each and every

one of his Miranda rights, and that he wished to speak to

[her ]” about the murders. In addition, Levin stated that, at

no time during the interview nor at any other time, did

Hinton complain to her about any physical abuse, nor did

he request counsel. Levin further stated that, after Hinton

gave his statement admitting responsibility for the murders,

the statement was transcribed and read aloud to him, and

he was given an opportunity to review it in typewritten form

before he initialed and approved each page and signed the

last page. When Levin was asked if Hinton had given her

any reason as to why he finally decided to give the confession, Levin said that Hinton had told her that “he had thought
8 No. 02-2729

about what had happened . . . [and] that he wanted to tell

the truth.”

After hearing and weighing the conflicting accounts presented by Hinton and the State’s witnesses, the trial judge

concluded that the testimony and evidence adduced at the

suppression hearing presented a “credibility question” and

that, “based on what [he] heard and the demeanor of the

witnesses and the like, and the evidence presented,” Hinton’s

motion to suppress should be denied. After the judge denied

the motion, Hinton waived his right to a jury trial, the judge

accepted the waiver and the case proceeded to a trial before

the court.

B. Bench Trial

Hinton’s trial commenced on July 8, 1985, less than a

month after the suppression hearing. Hinton chose to testify in his own defense and offered testimony that was similar in all material respects to the pretrial confession he had

given to Levin, and once again he implausibly claimed to

have fired his weapon at the victims in self-defense. As in

his confession statement, Hinton admitted that he went to

Durham’s house the night of the murders to collect a drug

debt, and during an ensuing altercation with Durham

concerning the debt, the two “wrestled over [his .38-caliber

weapon].” As the two struggled over control of the gun,

Hinton claimed that Durham “made me pull the trigger”

“three . . times,” striking Durham, McDaniel, and Bradley.

Hinton stated further that following his struggle with

Durham, he “shot him . . . twice or three times” and “ran

out of the door [of the apartment].” When questioned on

cross-examination, Hinton acknowledged that after he left

the murder scene he asked Dixon to sell the .38-caliber gun

used in the shootings and further stated that the confession

he gave to the Assistant State’s Attorney (implausibly
No. 02-2729 9

claiming that the shootings were in self-defense) was an accurate account of what occurred the night of the murders.

The evidence and testimony presented by the State, however, overwhelmingly established Hinton’s guilt beyond a

reasonable doubt as to each and every element of the

murders charged. The State’s evidence conclusively proved

that Hinton’s actions on the night of the murders were not

taken in self-defense, but instead were “voluntarily and

wilfully committed act[s], the natural [result] of which was

to cause death or great bodily harm” to Durham, McDaniel

and Bradley. People v. Lee, 628 N.E.2d 436, 440 (Ill. App.

Ct. 1993). Diane Staton assisted in providing identification

testimony linking Hinton to the murders, testifying that,

just after she heard five shots fired from the direction of

Durham’s apartment on the night of the murders, she looked

out her bedroom window and saw an individual matching

Hinton’s physical description walking backwards out of

Durham’s apartment with a gun in his hand, and that she

was able to get a good look at the suspect when he “turned

around [and] turned directly toward [her].” Staton then reaffirmed the positive identification she made of Hinton in

the police lineup at Area 2 the morning after the murders.

When asked at trial to identify the individual she had identified in the police lineup from the witness stand, Staton

pointed to Hinton.

The State presented additional testimony and evidence

linking Hinton to the murder weapon as well as the murders themselves. David Dixon testified that, as he had told

the police during the course of the investigation, approximately two hours after the murders Hinton stated that he

had just shot a person who owed him money, and furthermore that he “had to shoot a couple of people.” Dixon went

on to state that Hinton had told him that he had gone to

Durham’s house “to rob him.” According to Dixon, Hinton,

after the murders, asked Dixon to sell his .38-caliber pistol;
10 No. 02-2729

4 The State’s two medical examiners, Dr. Lee Beamer and Dr.

Eupil Choi, stated that during their pathological examinations

they removed five bullets in total from the victims’ bodies, two

bullets each from Durham and Bradley’s bodies and one from

McDaniel’s. The State’s ballistics expert testified that he examined the five bullets and determined that all the bullets were

discharged from Hinton’s .38-caliber weapon.

the gun that the police subsequently tracked down and,

after testing and examination, established as the murder

weapon. Dixon next stated that he later sold the gun to a

man named James Randall. The State corroborated Dixon’s

testimony concerning the sale of the murder weapon to

Randall with the testimony of Detective Thomas Kripple of

the Chicago Police Department, who recounted that after

questioning Randall concerning the whereabouts of the .38-

caliber weapon he received from Dixon, Randall delivered

the weapon to Kripple at the Area 2 station. The State also

submitted Hinton’s signed statement (given to A.S.A. Levin)

in which he confessed to having fired the weapon that killed

Durham, Bradley and McDaniel in support of its theory

that Hinton had indeed committed the three murders

charged. Additionally, the State presented the testimony of

two forensic medical examiners and a ballistics expert who

each identified the .38-caliber weapon brought to the

station as having been used in the triple murders charged

to Hinton.4

The State also presented testimony from the State’s medical examiners, Dr. Choi and Dr. Beamer, about the victims’

causes of death and the location of their gunshot wounds.

The doctors’ testimony made clear that the murders were

carried out in a manner completely contradictory to that of

Hinton’s fairy-tale recitation that he had shot the three

victims in self-defense. Indeed, both Dr. Choi and Dr.

Beamer’s testimony established that the murders were

carried out in a vicious and methodical manner, with all
No. 02-2729 11

5 Dr. Choi explained that Durham died as a result of a gunshot

wound to the right temple at close range, and furthermore he had

received another gunshot wound to the chest. Dr. Beamer stated

that after examining Bradley and McDaniel to determine the

cause of their respective deaths, he concluded that both victims

died after they were struck by individual bullets that lodged

behind the left ear of each at the base of the skull. Additionally,

Dr. Beamer said that both victims had “symmetric epidermal

abrasions”—or powder burns—surrounding their wounds, establishing that they were shot at close range. Dr. Beamer also determined that Bradley was shot once in the back.

three victims being shot in the head at close range.5

After weighing the totality of the evidence against Hinton,

the judge rejected his implausible explanation that he had

shot the victims in self-defense and found Hinton guilty of

having intentionally murdered Durham, McDaniel and

Bradley. See Ill. Rev. Stat. 1983, ch. 38, ¶ 9-1(a)(1)-(2). After

the filing of the pre-sentence report and the sentencing

hearing, the judge sentenced Hinton to concurrent terms of

life imprisonment as to each count, without the possibility

of parole. Hinton appealed his convictions and the sentences

imposed, but did not appeal the trial court’s denial of his

motion to suppress.

C. Post-Conviction Proceedings

After an unsuccessful direct appeal, Hinton filed a postconviction petition in the Circuit Court of Cook County,

claiming that the Chicago Police had violated his Fifth

Amendment protection against self-incrimination by illegally coercing his confession. According to his petition, police

officers coerced him into confessing to the murders by

allegedly “physically beating” and “electrocut[ing]” him. In

support of his claim, Hinton presented court documents,

published reports, court opinions and newspaper articles detailing complaints by other criminal detainees who claimed
12 No. 02-2729

that they had also been physically assaulted and coerced

into giving confessions by police officers while confined at

Area 2 (including Lt. Burge; the officer in charge at the

time of Hinton’s interrogation). See, e.g., People v. Hobley,

637 N.E.2d 992 (Ill. 1994); People v. Wilson, 506 N.E.2d 571

(Ill. 1987). 

Included in Hinton’s presentation were the February 1993

findings of the Chicago Police Board’s investigation into

allegations of police abuse at Area 2 concerning the time

frame in question. The report concluded that “[Lt.] Burge . . .

should be separated from the [Police] Department” as a

result of his improper treatment of a murder suspect

(Andrew Wilson, see People v. Wilson, 506 N.E.2d 571).

Hinton requested an evidentiary hearing in order to develop

this “newly-discovered” evidence that his confession was the

product of police coercion.

The circuit judge dismissed Hinton’s petition after concluding that Hinton’s “newly-discovered” evidence of police

brutality at Area 2 did not entitle him to an evidentiary

hearing. The judge concluded that the “evidence” Hinton

presented in his post-conviction petition was insufficient to

demonstrate any likelihood that his confession was coerced.

Furthermore, the judge, after reviewing all of the testimony, found that Hinton had failed to present sufficient

evidence that he was physically injured in a manner

“consistent with police brutality,” and had “not provided a

scintilla of direct evidence to suggest” that the police officers

who testified at his suppression hearing gave “perjurious

testimony” when they “denied [that they had] physically

abus[ed] Hinton [during his custody].” Hinton appealed the

circuit court’s decision, and the state appellate court affirmed

the judgment. Thereafter the Illinois Supreme Court denied

review.

Subsequently, Hinton filed a petition for a writ of habeas

corpus in federal court, claiming that the admission of his
No. 02-2729 13

6 The Respondent argues that Hinton’s Fifth Amendment claim

has been procedurally defaulted because Hinton failed to “fairly

present” this claim to the Supreme Court of Illinois. We disagree.

In his petition for leave to appeal to the Supreme Court of Illinois,

Hinton relied on Illinois and United States Supreme Court cases

that address involuntary confession claims, made explicit reference to his Fifth Amendment rights in the context of his claim

that he was “coerced to confess,” and also went into significant

(continued...)

confession at trial violated his Fifth Amendment protection

against self-incrimination because he had been forcibly coerced into giving it. Hinton requested, but was denied, an

evidentiary hearing to allow him to develop his claim that

his “newly-discovered” evidence of police abuse at Area 2

demonstrated that his confession was coerced. See Townsend

v. Sain, 372 U.S. 293, 312-14 (1963), overruled on other

grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). The

district court concluded that even if Hinton’s confession was

coerced (and thus should not have been admitted at trial),

the judge’s decision to allow it in evidence was harmless in

view of the overwhelming evidence of guilt the State had

introduced, independent of the confession. Accordingly, the

district court denied Hinton’s petition for habeas relief.

Hinton appealed, and we granted a certificate of appealability to consider whether Hinton’s confession should have

been admitted at trial, and whether its admission prejudiced his defense.

II. Analysis

Our review of the state courts’ adjudication of Hinton’s

alleged involuntary confession claim is governed by the

Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (codified at

28 U.S.C. § 2254).6

 Under the AEDPA, a state prisoner who
14 No. 02-2729

6 (...continued)

factual detail regarding his alleged abuse at the hands of police.

See Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001).

Accordingly, we conclude that Hinton did indeed sufficiently allege the substance of his Fifth Amendment coerced confession in

front of the Illinois Supreme Court, and we therefore have jurisdiction to reach the merits of Hinton’s claim.

7 Respondent argues that Hinton’s petition should be evaluated

under § 2254(d)(2) instead of § 2254(d)(1). However, whether

Hinton’s confession should have been admitted at his trial is a

“mixed question of fact and law,” Miller, 474 U.S. at 112, subject

to review under § 2254(d)(1). See Porter v. Gramley, 112 F.3d

1308, 1313 (1997)

petitions for a writ of habeas corpus must establish that the

state courts’ adjudication of his case 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 in the

state court proceeding.” 28 U.S.C. § 2254(d)(1) & (2). We

review these questions de novo. Schaff v. Snyder, 190 F.3d

513, 522 (7th Cir. 1999).

Hinton argues that the Illinois courts’ application of clearly

established federal law governing the voluntariness of confessions, see Miller v. Fenton, 474 U.S. 104, 109-110 (1985),

to the facts of his case was unreasonable.7 See 28 U.S.C.

§ 2254(d)(1). He posits that he presented the state courts

with sufficient “newly-discovered” evidence concerning alleged abusive police conduct at the Chicago Police Department Area 2 to demonstrate that his confession was coerced

and thus should not have been admitted at his trial.

Hinton faces an uphill battle (as he did in the three other

courts to render a decision on the same facts) in his attempt

to convince us that the trial judge’s decision to admit his

confession was in error. The only “evidence” that Hinton
No. 02-2729 15

8 Hinton maintains that his “blood-stained jersey” is evidence of

his injuries while in custody. However, because Hinton failed to

produce this evidence at the earlier suppression hearing even

though it was available for production at the time, his “blood-stained

jersey” will not be considered as newly discovered evidence that

satisfies the AEDPA’s mandate that evidence sought to be introduced in an evidentiary hearing must be evidence that “could not

have been previously discovered through the exercise of due diligence.” 28 U.SC. § 2254(e)(2)(A)(ii).

produced at his suppression hearing in support of his

coerced confession claim was his own self-serving statements and testimony. However, he failed to corroborate his

allegations of the physical abuse that he alleged he sustained

with any evidence,8

 such as eyewitness reports, medical

records, and /or photographs, in support thereof, see Wilson

v. City of Chicago, 6 F.3d 1233, 1236 (7th Cir. 1993). Indeed, his failure to produce any corroborating eyewitness

testimony, medical records or supporting evidence at the

suppression hearing, dealing with the injuries he alleges he

sustained while in custody, significantly undermines his

involuntary confession claim. See Mahaffey v. Schomig, 294

F.3d 907, 917 (7th Cir. 2002). Because Hinton failed to offer

any evidence at the suppression hearing aside from his own

testimony, he presented the trial judge with a clear question

of the credibility of the witnesses, which was properly

resolved in the State’s favor. On habeas review, we are

required to accord credibility determinations by a state trial

court a “presumption of correctness,” and we can only disturb the court’s conclusions if Hinton demonstrates with

“clear and convincing evidence” that its determinations were

erroneous. See 28 U.S.C. § 2254(e)(1); Sprosty v. Buchler, 79

F.3d 635, 643 (7th Cir. 1996).

However, we need not determine if the “newly-discovered”

evidence Hinton presented regarding abusive police practices at the Area 2 station is sufficient to demonstrate by

clear and convincing evidence that the trial court’s credibil-
16 No. 02-2729

ity determinations were erroneous, because any potential

error caused by the admission of his confession was harmless in light of the wealth of evidence of his guilt, separate

and distinct from his confession. See, e.g., Hopkins v.

Cockrell, 325 F.3d 579, 585 (5th Cir. 2003); Johnson v.

Cain, 215 F.3d 489, 497 (5th Cir. 2000). Even were we to

assume that Hinton’s confession was coerced and should not

have been admitted at trial, he is only entitled to habeas

relief if the state court’s admission of his allegedly coerced

confession actually caused his custody. Aleman v. Sternes,

320 F.3d 687, 690 (7th Cir. 2003). However, if the constitutional error alleged on the part of the state court did not

cause Hinton’s custody, then the error is harmless and the

writ should not issue. Id. This court has previously held

that the harmless error doctrine applies to alleged coerced

confessions. Arizona v. Fulminate, 499 U.S. 279, 308 (1991);

United States v. Alwan, 279 F.3d 431, 438 (7th Cir. 2002).

When applying the harmless error doctrine on collateral

review, we may only grant Hinton’s petition for a writ of

habeas if we conclude that the admission of his confession

“had substantial and injurious effect or influence in determining the jury’s verdict,” which it did not. Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v.

United States, 328 U.S. 750, 776 (1946)); see also Aleman,

320 F.3d at 690 (holding that the Brecht standard applies on

federal collateral review, even after passage of the AEDPA). 

Hinton somehow contends that without the confession,

the trial court would have been “reluctant” to convict him

and also argues that the trial court’s admission of his confession was not harmless. Aside from the confession, Hinton

claims the State had no evidence that linked him to the

crime except for the testimony of Diane Staton and David

Dixon, which Hinton attempts to characterize as “weak and

unreliable.” We disagree and conclude that the trial court

would have convicted him even if the confession were not

introduced at trial due to the wealth of other corroborating
No. 02-2729 17

9 Recall that the State’s ballistics experts testified that this gun

was in fact the weapon used to commit the murders, and the State

tied Hinton to the gun through his own testimony, and that of

Dixon and Officer Kripple. See People v. Brown, 661 N.E.2d 287,

296 n.1 (Ill. 1996).

evidence that the State produced which established Hinton’s

guilt beyond a reasonable doubt. 

Hinton himself provided much of the evidence that the

State needed to establish his guilt. At trial, Hinton voluntarily took the witness stand and admitted that, on the

night of the murders, he went to Durham’s house armed

with a loaded .38-caliber pistol and fired five shots killing

Durham, McDaniel, and Bradley. Hinton also bolstered any

“weakness” or “unreliability” in Staton’s testimony by corroborating Staton’s identification of him when admitting

that he was the gunman that she saw backing out of

Durham’s apartment. See United States v. Crotteau, 218

F.3d 826, 833 (7th Cir. 2000); People v. Mahaffey, 742 N.E.2d

251, 266 (Ill. 2000); People v. Herrett, 561 N.E.2d 1, 6 (Ill.

1990). Dixon’s testimony regarding Hinton’s admissions the

day of the murders was also corroborated when Hinton

testified on the witness stand that he shot the three victims

and subsequently gave Dixon the murder weapon and asked

him to sell it. See United States v. Curtis, 324 F.3d 501, 507

(7th Cir. 2003) (stating that party admissions are reliable

evidence if sufficiently corroborated). In addition, the State

provided supplemental evidence demonstrating both

Hinton’s presence at the crime scene and his use of the

recovered .38 pistol to kill the three victims.9

 This is not to

mention that the two medical examiners who testified at

trial completely destroyed Hinton’s fabricated self-defense

argument by testifying that the manner in which the

victims were killed suggested that they were executed

gangland style rather than accidentally struck during a
18 No. 02-2729

10 See supra note 5, at p. 11 and accompanying text.

11 Hinton contends that the admission of his confession “prejudiced

[his] defense because it forced him to change his trial strategy” in

that “he would not have testified” at his trial were it excluded (he

also asserted in his reply brief that had his confession been

suppressed the State may have offered him a plea, and claimed at

oral argument that he would have opted for a jury trial instead of

a bench trial, arguments we do not consider because he waived

them by not presenting them in his opening brief, United States

v. Collins, 361 F.3d 343, 349 (7th Cir. 2004)). The Supreme Court,

however, has rejected such attempts on the part of criminal defendants to play Monday morning quarterback when their trial

strategies turn sour and do not produce the sought-after results.

See Ohler v. United States, 529 U.S. 753, 755, 757 (2000) (“the

defendant in a criminal trial must make choices as the trial progresses” . . . “a party introducing evidence cannot complain on

appeal that the evidence was erroneously admitted”); see also United

States v. Saunders, 359 F.3d 874, 878 (7th Cir. 2004). Hinton,

with the assistance of counsel, chose freely and voluntarily to

testify, and he is bound by this decision. He cannot afterward,

when his choice to testify yields negative consequences, turn

around, and on collateral attack, attribute the effects of his decision to an alleged error in an evidentiary ruling by the trial court.

See Ohler, 529 U.S. at 758.

struggle, as Hinton claimed.10 Indeed, the witnesses at trial

(both Hinton and the State’s) repeated, in all significant

respects, the incriminating portions of Hinton’s pretrial

confession statement. Therefore, the confession statement

itself was merely cumulative and even if we were to assume

that its admission at trial was erroneous, any error would

be harmless.11 See Brecht, 507 U.S. at 639; United States v.

Thompson, 286 F.3d 950, 962 (7th Cir. 2002).

 Thus, even if we were to assume that the admission of

Hinton’s confession was in error, a question which we do not

reach, the confession did not cause a “substantial and

injurious effect or influence in determining [the] verdict”
No. 02-2729 19

against him, and as a result any possible error in its admission was harmless. Brecht, 507 U.S. at 637. Accordingly, he

is not entitled to a writ of habeas corpus.

AFFIRMED.

WOOD, Circuit Judge, concurring. While I agree that the

district court correctly denied Leonard Hinton’s petition for

a writ of habeas corpus under 28 U.S.C. § 2254, given the

stringent standards for relief that apply to such claims, I see

this as a much closer case than the majority does. Hinton

raised a serious challenge to his conviction. He loses,

however, because the state court’s conclusion that the tainted

confession did not affect the outcome of Hinton’s trial was

not downright unreasonable. Nevertheless, the claim Hinton

has made regarding his confession illustrates dramatically

the high price our system of criminal justice pays when

police abuse runs rampant: a cloud hangs over everything

that the bad actors touched, whether or not they did anything wrong on a particular occasion. 

In his § 2254 application, Hinton argued that his confession to the police was the result of a nightmarish course of

torture (including having a suffocating plastic bag put over

his head, being kept from the toilet, being hung from a pole

near the ceiling, and having his genitals and rectum

shocked) that had lasted over a period spanning several

days. Had he not admitted to the murders in his coerced

confession, he continues, he would not have testified as he

did at the trial, and the remainder of the state’s case (which

included no physical evidence linking him to the scene)

would have looked far weaker. The state court evaluated

the record as a whole, as my colleagues have recounted, and
20 No. 02-2729

it concluded that enough evidence existed that was completely independent of the confession to make it confident

that any error in the admission of the confession was harmless. That finding is not so far-fetched that it can be labeled

unreasonable, as the term is defined for AEDPA.

Nonetheless, as Hinton’s appellate lawyers have pointed

out to this court, a mountain of evidence indicates that torture was an ordinary occurrence at the Area Two station of

the Chicago Police Department during the exact time period

pertinent to Hinton’s case. Eventually, as this sorry tale

came to light, the Office of Professional Standards Investigation of the Police Department looked into the allegations,

and it issued a report that concluded that police torture

under the command of Lt. Jon Burge—the officer in charge

of Hinton’s case—had been a regular part of the system for

more than ten years. And, in language reminiscent of the

news reports of 2004 concerning the notorious Abu Ghraib

facility in Iraq, the report said that “[t]he type of abuse

described was not limited to the usual beating, but went into

such esoteric areas as psychological techniques and planned

torture.” The report detailed specific cases, such as the case

of Andrew Wilson, who was taken to Area Two on February

14, 1982. There a group led by Burge beat Wilson, stuffed a

bag over his head, handcuffed him to a radiator, and repeatedly administered electric shocks to his ears, nose, and

genitals. See People v. Wilson, 506 N.E.2d 571 (Ill. 1987).

Burge eventually lost his job with the police, though not until

1992. See In the Matter of the Charges Filed Against Jon

Burge, No. 91-1856 (Chicago Police Board, February 11,

1993). To this day, Burge has not been prosecuted for any

of these actions, though it appears that he at least thinks

that he may still be at some risk of prosecution. See, for

example, “Cop brutality probe must be thorough, fair,”

Chi. Sun-Times, May 16, 2002 (editorial); Hal Dardick,

“Burge repeatedly takes 5th; Former police commander

stays mum on torture questions,” Chi. Tribune, Sept. 2,
No. 02-2729 21

2004 (noting allegations that Burge or people reporting to

him had tortured 108 Black and Latino suspects between

August 1972 and September 1991).

It is of course possible—one would hope even likely—

that Burge did not torture every single suspect who crossed

his path. Thus, it was not enough for Hinton to show that

Burge had tortured or supervised the torture of a substantial number of other arrestees. Hinton had to offer some

evidence indicating that he himself was the victim of this

abuse. His task here was exceedingly difficult. First, the

trial court resolved critical issues of credibility against him:

it did not credit his account of the torture at all, given the

lack of markings on his body or other corroborative

evidence. Second, the state court found that the alleged

blood-stained jersey that Hinton argued should have been

introduced into evidence was not the clear evidence of

injury Hinton believed it to be. Third, Hinton did admit to

the killings at the trial, even though he attempted to

characterize them as self-defense or accidents. Coercion or

even torture at the confession stage did not give him

license to commit perjury. The jury was fully entitled to

take this evidence into account and decide how plausible

Hinton’s spin on it was.

For these reasons, I conclude that the district court

correctly denied Hinton’s petition. I do so, however, aware

that there is some risk of error in every decision that a

court makes. Behavior like that attributed to Burge imposes a huge cost on society: it creates distrust of the police generally, despite the fact that most police officers

would abhor such tactics, and it creates a cloud over even

the valid convictions in which the problem officer played

a role. Indeed, the alleged conduct is so extreme that, if

proven, it would fall within the prohibitions established by

the United Nations Convention Against Torture (“CAT”),

which defines torture as “any act by which severe pain or
22 No. 02-2729

suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him

or a third person information or a confession . . .,” thereby

violating the fundamental human rights principles that

the United States is committed to uphold. It is somewhat

disturbing, given the gravity of the problem, to label what

happened as “harmless” error. Nevertheless, I know of no

clearly established Supreme Court case that would have

required the state court to recognize the error as structural in

nature. To the contrary, the Court has used the harmless

error doctrine in involuntary confession cases, although it

has never done so when the coercion rose to the level of

torture. See Arizona v. Fulminante, 499 U.S. 279, 285 (1991);

cf. Brown v. Mississippi, 297 U.S. 278 (1936) (holding that

convictions resting solely on confessions that were “extorted by officers of the State by brutality and violence”

violated the due process clause and the admission of which

at trial was “a wrong so fundamental that it made the whole

proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void.”) I respectfully concur.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-26-05