In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1731

WILLIAM JOHNSON,

Petitioner-Appellee,

v.

GERARDO ACEVEDO, Warden,

Hill Correctional Center,

Respondent-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 5351—Harry D. Leinenweber, Judge.

ARGUED SEPTEMBER 3, 2008—DECIDED JULY 14, 2009

Before EASTERBROOK, Chief Judge, and CUDAHY and

SYKES, Circuit Judges.

EASTERBROOK, Chief Judge. William Johnson is serving

sentences aggregating 50 years’ imprisonment for armed

robbery, aggravated battery, and use of a weapon by a

convicted felon. A jury in Illinois convicted him of these

offenses following a trial at which one of his cousins,

plus two employees of a McDonald’s restaurant, testified

that he entered the restaurant with a sawed-off shotgun
2 No. 08-1731

and robbed the cash registers, shooting and injuring one

of the employees in the process. Johnson testified at trial

that he had been buying auto supplies while his cousin

robbed the restaurant. A federal district court issued a

writ of habeas corpus under 28 U.S.C. §2254 after concluding that the prosecutor had violated the rule of Doyle v.

Ohio, 426 U.S. 610 (1976), by asking Johnson why he

failed to relate this story when interviewed the day after

the robbery. 544 F. Supp. 2d 683 (N.D. Ill. 2008). The

state contends that Anderson v. Charles, 447 U.S. 404 (1980),

permits the prosecutor to pursue this line of questioning,

and that any error is harmless.

A jurisdictional problem delayed consideration of this

appeal. The district court entered a judgment that reads,

in full: “IT IS HEREBY ORDERED AND ADJUDGED

that the petitioner, William Johnson’s petition for a Writ

of Habeas Corpus is conditionally granted.” This sounds

like a writ will issue in the future if some condition is

satisfied—but what condition? The district judge’s

opinion says that the state must release Johnson unless

he is retried within 90 days. That is not a “conditional

grant” of anything; it is a decision that Johnson is

entitled to a writ that allows the state to choose between

retrial and release. But no such writ was issued. A judgment needs to do more than just say that some petition or

motion has been granted; it must provide the relief to

which the victor is entitled. Until that happens there is

no final decision and nothing to appeal.

Every judgment must be self-contained and specify

the relief being awarded. See, e.g., Reytblatt v. Denton, 812
No. 08-1731 3

F.2d 1042 (7th Cir. 1987). A writ of habeas corpus is

enforceable by contempt, so it is especially important

that the court set out precisely what is required. District

courts would cause fewer problems of this kind if they

obeyed Fed. R. Civ. P. 58(b)(2), which says that the

judge must personally review and approve any judgment other than one implementing a jury’s verdict or

denying all relief. This judgment was not approved by

the judge; it is signed only by a deputy clerk (and not

really “signed” even by the clerk; there is just a line with

“/s/” followed by a typed name). Rule 58(b) requires

review and approval by a judge because deputy clerks

cannot read judges’ minds and may not use legally appropriate language even if they can discern a judge’s

objective. (Few deputy clerks are lawyers.) This court

put the appeal in stasis while the parties returned to the

district court and obtained a proper final judgment.

That has been done, so the appeal can proceed.

Johnson’s cousin, Jameel White, testified that he drove

with Johnson to a McDonald’s restaurant, which the two

entered to order a meal. (We have drawn this information, and much of what follows, from the opinion of the

Appellate Court of Illinois. No one contests that court’s

narration of what happened at trial.) According to

White, Johnson unexpectedly pulled out a sawed-off

shotgun and began a robbery; White fled across the

street to a Trak Auto store, where Johnson eventually

joined him. The two paid a third party to give them a

ride. White went home, and Johnson went to a motel.

Two employees of the restaurant picked Johnson out of

a lineup as the robber and identified him at trial. An
4 No. 08-1731

employee of Trak Auto testified that Johnson entered

the store and waved a fistful of crumpled bills. Police

found in Johnson’s car, which had been left in the restaurant’s parking lot, some crumpled currency and a sawedoff shotgun; a spent shell was in the gun’s chamber.

(The robber had fired one round inside the restaurant.)

A torn portion of a $20 bill in the car matched the remainder of that bill eventually recovered from Johnson.

Johnson offered a completely different version of

events. He testified that White drove him to the Trak Auto

store so that he could buy auto supplies. (The car was

Johnson’s but White was the driver, Johnson testified,

because Johnson’s driver’s license had been revoked.)

White dropped him off and continued to the McDonald’s

restaurant. White met Johnson later, looking jittery,

and said that Johnson’s car had been involved in some

misconduct and should be abandoned. White then arranged for a third party to drive them away, taking

White home and Johnson to a motel.

After finding the shotgun and some of the loot in Johnson’s car, police naturally wanted to talk with him.

They tracked him down at the motel and gave him

Miranda warnings; an Assistant State’s Attorney asked

him about the events. The prosecutor tried to offer the

resulting statement at Johnson’s trial, but the judge excluded it on state-law grounds. (The prosecutor had not

turned over a copy of the statement during discovery, as

Illinois law requires.) A prosecutor made this offer of

proof:

A.S.A. Keating would state that [Johnson] told him

that he woke up at approximately 6:00 a.m. on
No. 08-1731 5

11/11/98, went for some car parts, had to take

Theresa [his sister] to work. He was planning on

going to Robbins[, Illinois,] that night for some

peace talk for some shooting earlier. He thought

he would die that night, so he drank some wine,

smoked some crack and weed. He went to a

friend’s house where he had sex in a bathroom,

and he went to his sister’s after that, and he remembers being in the hotel when the police

came to get him.

This account of his activities on the day of the robbery

did not include any information about White driving

Johnson to Trak Auto and the other events to which

Johnson had testified. The prosecutor asked Johnson a

total of 25 questions that were variations on the theme:

“If what you have just testified is true, why didn’t you

tell the Assistant State’s Attorney when you made

your statement to him?” The state judge sustained objections to 10 of the questions, so there was no error in that

respect, see Greer v. Miller, 483 U.S. 756 (1987), but

he allowed the other 15, and the federal district judge

thought this an egregious violation of Johnson’s rights.

Doyle holds that a defendant who receives Miranda

warnings, and invokes his right to keep silent, cannot

be cross-examined about that silence at trial. The Court’s

rationale is that Miranda warnings should not become

a trap. Questions of the “why didn’t you say this earlier?”

variety ask the jury to infer that an innocent person

would have spoken, but Miranda warnings supply an

explanation other than guilt for a suspect’s silence. See

Brecht v. Abrahamson, 507 U.S. 619, 628–29 (1993). A corol-
6 No. 08-1731

lary is that, if the suspect chooses to speak after receiving Miranda warnings, then any difference between

what the person says before trial, and testimony at trial,

may be the subject of questions and comment. That’s

the holding of Anderson v. Charles:

Doyle does not apply to cross-examination that

merely inquires into prior inconsistent statements. Such questioning makes no unfair use of

silence, because a defendant who voluntarily

speaks after receiving Miranda warnings has not

been induced to remain silent. As to the subject

matter of his statements, the defendant has not

remained silent at all.

447 U.S. at 408. And an out-of-court statement may be

called “inconsistent” with the in-court statement because

of a curious omission as well as a flat contradiction.

Sherlock Holmes recognized in Silver Blaze that the dog’s

failure to bark, when barking would have been expected,

conveyed a powerful message. So the Court remarked:

Each of two inconsistent descriptions of events

may be said to involve “silence” insofar as it omits

facts included in the other version. But Doyle does

not require any such formalistic understanding

of “silence,” and we find no reason to adopt such

a view in this case.

Id. at 409. This is the idea behind the questions that the

prosecutor asked on cross-examination. Johnson told the

Assistant State’s Attorney what he had done on the day

of the robbery. His story left out all of the vital details

that he supplied on the stand; the prosecutor then
No. 08-1731 7

implied that the story told in court must be a recent

invention.

The Appellate Court of Illinois and the federal district

court found a constitutional problem for two reasons.

First, they observed that Johnson’s statement to the

Assistant State’s Attorney (at least as summarized in

the offer of proof) did not mention either White or the

robbery, so that the questioning at trial did not cover

the same “subject matter” as the statement. Second, they

thought it hard to see how Johnson could be questioned

about inconsistencies between his trial testimony and

his statement to the Assistant State’s Attorney, when

that statement was not in evidence.

Neither of these points is enough, independently, to

support the conclusion that the questions transgressed

the holding of Doyle. That the statement to the Assistant

State’s Attorney did not mention White is the very thing

that made it so curious. Johnson had been arrested at

the motel. He was later questioned about what he did

on the day of the robbery. He waived his right to remain

silent (and thus, one might think, abandoned the foundation for Doyle’s rule). Yet instead of relating facts that,

if true, would have led to his release from custody,

Johnson said only inconsequential things. A jury might

conclude that he did this because he had yet to invent a

story that was consistent with innocence—and Charles

holds that once a suspect agrees to speak he may be

questioned about telling omissions, which are a form

of inconsistency. See Phelps v. Duckworth, 772 F.2d 1410

(7th Cir. 1985) (en banc).
8 No. 08-1731

As for the fact that the prosecution did not perform

its obligations in discovery: A violation of state law is not

the basis for federal collateral relief. See, e.g., Estelle v.

McGuire, 502 U.S. 62 (1991). Illinois is free to hold as a

matter of its own law that, if a defendant’s out-of-court

statement has been excluded from evidence, no crossexamination to draw out inconsistency between that

statement and the in-court testimony is allowable. But

that is not what the state’s appellate court held. It

relied on Doyle rather than any state rule restricting crossexamination. Yet Doyle does not establish a federal rule

that the out-of-court statement must be introduced

before cross-examination about revealing omissions may

be conducted; Doyle applies only when the suspect

invokes his federal right to remain silent, which Johnson

did not.

The state discovery violation has presented a complication of a different sort for this proceeding, however.

All we have is the offer of proof. The full statement to

the Assistant State’s Attorney is not in the record—by

which we mean, not in the federal record. And the

absence of the statement makes it difficult to apply

Doyle. When, precisely, did Johnson receive Miranda

warnings? (Doyle applies only to post-warning statements

or omissions. See Fletcher v. Weir, 455 U.S. 603 (1982).)

Was Johnson really silent about White’s role? We don’t

know. What, if anything, did he say about how he came

to have part of the $20 bill? We don’t know. Did he say

anything about how White could have carried a sawed-off

shotgun without his knowledge? We don’t know.
No. 08-1731 9

Unless Charles means that a defendant who says

anything may be cross-examined about his failure to tell

the whole story, the absence of the full statement

impedes evaluation. And it is hard to think that the

Supreme Court meant to say that, if a suspect tells a knockknock joke after receiving Miranda warnings, and

then clams up, Doyle drops out of the picture. The

suspect must say enough to make the omission of the

story told at trial a sound basis for an adverse inference.

We just don’t know whether that is true of the difference

between Johnson’s statement to the Assistant State’s

Attorney and his testimony at trial. For all the record

shows, Johnson chatted amiably until the Assistant

State’s Attorney asked about the robbery, after which

he invoked his right to silence.

Normally the prisoner bears the burden of production

and the risk of non-persuasion in a federal collateral

attack; after all, the petitioner is contesting a final decision

of a state court. But the fact that the state’s appellate

court ruled in Johnson’s favor on the Doyle issue may

have led him to think it unnecessary to mount a full

presentation in the federal proceeding. What’s more, we

do not know whether Johnson (or his lawyers) ever

received a copy of the full statement. It is the Attorney

General of Illinois who wants to contest the state judiciary’s resolution of the Doyle question—yet the Attorney

General did not furnish the federal court with a complete

copy of Johnson’s statement. Under the circumstances, it

is best to proceed as the state court did: To assume that

Doyle barred at least some of the 15 questions to which

objections were overruled, and to ask whether the

error was harmless.
10 No. 08-1731

The harmless-error question has some difficulties of its

own. The first is the standard of federal review. Section

2254(d) provides:

An application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State court shall not be granted

with respect to any claim that was adjudicated on

the merits in State court proceedings unless

the adjudication of the claim—

(1) 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; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in

light of the evidence presented in the State

court proceeding.

How does this language apply when the state court has

found a violation of the Constitution but concluded that

the error was harmless? One approach, which the

district court used in reliance on Fry v. Pliler, 551 U.S. 112

(2007), is to tackle the issue independently, using the

standard laid down in Brecht: Whether the Doyle violation “had substantial and injurious effect or influence in

determining the jury’s verdict.” The other possible approach is to ask whether the state court applied federal

law unreasonably when holding that the error was harmless beyond a reasonable doubt. See Mitchell v. Esparza,

540 U.S. 12 (2003). The reasonable-doubt standard is

the right one on direct appeal, see Chapman v. California,
No. 08-1731 11

386 U.S. 18 (1967), just as the substantial-effect standard

is appropriate on collateral review.

Esparza holds that, when a state court has found a

constitutional error harmless beyond a reasonable

doubt, the federal court’s initial question is whether that

decision represents an “unreasonable application of

clearly established Federal law”. The Justices wrote: “We

may not grant [a] habeas petition . . . if the state court

simply erred in concluding that the State’s errors were

harmless; rather, habeas relief is appropriate only if

the [State] Court of Appeals applied harmless-error

review in an ‘objectively unreasonable’ manner.” 540 U.S.

at 18.

The district court did not mention Esparza. It relied on

Fry for the proposition that a federal court should make

an independent decision (though under the Brecht

standard rather than the reasonable-doubt standard). The

question at issue in Fry, however, was not whether a

federal court should disregard a state court’s considered

decision on the subject of harmless error. It was instead

what a federal court should do if the state court concludes that no constitutional error occurred and therefore does not make a harmless-error decision. If the

federal court concludes that constitutional error took

place, and the last state court to address the case did not

apply any kind of harmless-error review, which is the

appropriate standard: Brecht or Chapman? The Court

held that Brecht supplies the standard for a federal court

to use in all collateral attacks, when making an independent evaluation of a trial error’s effects.
12 No. 08-1731

Fry did not overrule Esparza. To the contrary, the Justices

wrote, “[i]n Mitchell v. Esparza, 540 U.S. 12 (2003) (per

curiam), we held that, when a state court determines

that a constitutional violation is harmless, a federal court

may not award habeas relief under §2254 unless the

harmlessness determination itself was unreasonable.

Petitioner contends that §2254(d)(1), as interpreted in

Esparza, eliminates the requirement that a petitioner

also satisfy Brecht’s standard. We think not.” 551 U.S.

at 119.

If the state court has conducted a harmless-error

analysis, the federal court must decide whether that

analysis was a reasonable application of the Chapman

standard. If the answer is yes, then the federal case is

over and no collateral relief issues. That’s the holding of

Esparza. If the answer is no—either because the state

court never conducted a harmless-error analysis, or

because it applied Chapman unreasonably—then §2254(d)

drops out of the picture and the federal court must

make an independent decision, just as if the state court had

never addressed the subject at all. And we know from

Fry that, when this is so, a federal court must apply the

Brecht standard to determine whether the error was

harmless. See also, e.g., Smiley v. Thurmer, 542 F.3d 574,

583–84 (7th Cir. 2008); Aleman v. Sternes, 320 F.3d 687 (7th

Cir. 2003).

So did the state’s appellate court analyze the harmlesserror question reasonably? Because its opinion is unpublished (and not available on the Internet), we reproduce

the pertinent portion here:
No. 08-1731 13

Before a constitutional error can be held harmless,

the reviewing court must be able to conclude

beyond a reasonable doubt that the error did not

contribute to the finding of guilt. People v. Averhart,

311 Ill. App. 3d 492, 505–06, 724 N.E.2d 154 (1999)

citing Chapman v. California, 386 U.S. 18, 24, 87

S. Ct. 824, 828, 17 L. Ed. 2d 705, 710–11 (1967). The

burden of proof is on the State to show beyond a

reasonable doubt that the jury verdict would

have been the same absent the error. People v.

Thurow, 203 Ill. 2d 352, 363, 786 N.E.2d 1019 (2003).

There are five factors courts consider in determining whether a Doyle violation is harmless beyond a

reasonable doubt: (1) the intensity and frequency

of the references to the defendant’s silence;

(2) which party elected to pursue the line of questioning; (3) the use that the prosecution made of

the defendant’s silence; (4) the trial court’s opportunity to grant a motion for mistrial or to give a

curative jury instruction; and (5) the quantum of

other evidence establishing defendant’s guilt.

People v. Dameron, 196 Ill. 2d 156, 164, 751 N.E.2d

1111 (2001).

In light of the overwhelming quantum of evidence

of defendant’s guilt as established from the eyewitness identification testimony, we conclude

that the Doyle violation was harmless beyond a reasonable doubt. Defendant was identified by two

eyewitnesses whose identifications were reliable.

Factors that are considered in determining the

reliability of an out-of-court identification include
14 No. 08-1731

the witness’s opportunity to view the accused at

the time the crime occurred, the witness’s degree of

attention, the accuracy of the witness’s prior

description, the degree of certainty demonstrated

by the witness at the subsequent confrontation,

and the amount of time that passes between the

crime and the confrontation. People v. Taylor, 143

Ill. App. 3d 252, 255, 492 N.E.2d 1011 (1986). In this

case, the armed robbery occurred in a fully illuminated restaurant with the offender in close proximity to the eyewitnesses, making no attempt to

conceal his identity. Moreover, the armed robbery

lasted approximately ten minutes, during which

time the offender ordered Susanna Ramos to open

her cash register and moments later ordered the

manager, Alicia Ortega, to sequentially open four

cash registers.

The record indicates that Monique Nolan and

Susanna Ramos both had sufficient opportunity to

observe the offender during the armed robbery and

both were paying attention. Nolan testified that

during the armed robbery she stood only five to

six feet away from the offender and that she continually looked and peeked at the offender from a

corner of the employee area of the restaurant.

Ramos testified that when the offender first approached her at the front counter, she looked him

in the face and asked for his order. According to

Ramos, the offender stood at the front counter

for about a minute without responding and then

walked away. Minutes later, the offender returned
No. 08-1731 15

to the counter where he pointed a sawed-off shotgun at Ramos’ chest and demanded that she open

her cash register. Ramos testified that at this time

the shotgun actually touched her chest and she

looked directly at the offender’s face for one to

two minutes before turning away because she

was frightened.

Defendant argues that Nolan’s and Ramos’ failure

to describe his facial hair rendered their identifications unreliable. We disagree. “Experience tells us

that an identification is not usually made by distinguishing separate features but by the total impression made upon the witness.” People v. Smith, 52 Ill.

App. 3d 583, 587, 367 N.E.2d 756 (1977). Thus,

courts have generally held that an eyewitness’s

failure to include facial hair in an initial description constitutes a minor discrepancy, affecting

the credibility of the description, but not destroying the validity of the identification testimony.

Taylor, 143 Ill. App. 3d at 255. Under the circumstances of this case, Nolan’s and Ramos’ failure

to describe defendant’s facial hair in their initial

description of defendant did not render their

identification testimony unreliable.

Therefore, we find that in light of the overwhelming quantum of evidence of defendant’s guilt as

established from the eyewitness identification

testimony, the Doyle violation was harmless beyond a reasonable doubt. We are convinced that

the jury would have convicted defendant
16 No. 08-1731

absent the prosecutor’s improper reference to

defendant’s post-Miranda silence.

This passage articulates the Chapman rule accurately, and

it reads like a reasonable application. It is in some

respects favorable to Johnson—it recognizes a weakness

in the eyewitness testimony, and it does not rely on

anything that White said, the torn $20 bill, the fact that

the manager of the Trak Auto store testified that

Johnson displayed a wad of crumpled bills, or the sawedoff shotgun and loot found in his car.

Johnson contends that Nolan and Ramos gave testimony at odds with that of White, who said that the

robbery started soon after they entered the restaurant,

rather than a few minutes later. Disagreements about

time are common in eyewitness testimony; a few minutes

may seem like much longer to someone staring at the

barrel of a sawed-off shotgun. It is almost always possible

to find inconsistencies in the narrations of multiple eyewitnesses, and incongruities in the story of any one

eyewitness. The shortcomings of human observation

and memory do not make it unreasonable for a state

court to find an error harmless beyond a reasonable

doubt. Questions that violate Doyle’s rule are unlikely to

change a jury’s mind. These questions do not get damning

evidence before the jury, and “why didn’t you tell this

story before?” is something that jurors are likely to

wonder, whether or not a prosecutor makes the question

explicit.

Perhaps we would have reached a different conclusion,

had we been faced with the harmless-error question in
No. 08-1731 17

a case on direct appeal in federal court. But whether the

state court erred (in the sense that federal judges

would have decided otherwise) does not matter under

§2254(d). We ask only whether the state court’s resolution was reasonable. This considered conclusion was

reasonable, so the state court’s decision must stand.

REVERSED

CUDAHY, Circuit Judge, concurring. The district court,

after what seems to me to be a searching analysis under

Brecht, reached a point where it was in “grave doubt”

about the harmlessness of the Doyle error in Johnson’s

state court trial and, citing Fry v. Pliler, resolved its state

of “equipoise” by granting the habeas petition. See Fry

v. Pliler, 127 S. Ct. 2321, 2328 n.3 (2009) (“We have previously held that, when a court is ‘in virtual equipoise as

to the harmlessness of the error’ under the Brecht

standard, the court should ‘treat the error . . . as if it

affected the verdict . . . .’ ”) (quoting O’Neal v. McAninch,

513 U.S. 432, 435 (1995)).

The majority resolves the question of the harmlessness

of the Doyle violation by finding that the state court

applied settled law reasonably under § 2254(d), and

therefore does not reach the Fry/Brecht question. This

seems unsettling because it points to tension between

our precedent regarding “reasonableness” under § 2254(d)
18 No. 08-1731

and the Supreme Court’s precedent on how to resolve

questions of harmlessness under Brecht. In the end,

I believe the legal gymnastics can, perhaps, be reduced

to a difference of opinion about the effect of the error

in question. The district court judge was convinced

that the Doyle error made a difference in the outcome

of Johnson’s trial (or he had grave doubts, anyway). The

majority on appeal believes that a Doyle violation rarely,

if ever, makes this kind of a difference and that the

state court was therefore reasonable in finding it made

no difference here.

Because habeas petitions are subject to de novo

review, the majority analysis results in a reversal. But the

majority does little to clarify how district courts are to

apply § 2254(d)’s “reasonableness” inquiry in the light

of Fry’s instruction to “assess the prejudicial impact of

constitutional error in a state-court criminal trial under

the . . . standard set forth in Brecht,” and apparently to

grant the petition where “grave doubts” lead to a state

of “equipoise.” Fry, 127 S. Ct. at 2328 & n.3. Although

these complications are troubling, I do not find them

adequate grounds to disagree with the outcome and

therefore I join the majority opinion.

7-14-09