In the

United States Court of Appeals

For the Seventh Circuit

No. 13-1314

KEITH A. LEE,

Petitioner-Appellant,

v.

BRIAN FOSTER,

Respondent-Appellee.

Appeal from the United States District Court for the 

Eastern District of Wisconsin.

No. 1:10-cv-00040 — William C. Griesbach, Chief Judge.

ARGUED OCTOBER 29, 2013 — DECIDED APRIL 28, 2014

Before WOOD, Chief Judge, and KANNE and HAMILTON,

Circuit Judges.

KANNE, Circuit Judge. Keith Lee filed a petition for a writ of

habeas corpus in the United States District Court for the

Eastern District of Wisconsin. The district court denied the

petition, but certified three issues for appeal: (1) whether an incourt identification of Lee violated his rights to due process; (2)

whether an adequate and independent state ground precluded

consideration of Lee’s claim for ineffective assistance of
2 No. 13-1314

counsel; and (3) whether admission of an out-of-court statement at trial violated his Sixth Amendment right to confront

witnesses. We affirm.

I. BACKGROUND

Lee was tried and convicted of the first-degree reckless

homicide of Joshua Meyers along with two counts of armed

robbery. The government presented evidence that he and

Victor Thomas traveled to Meyers’s residence in Oshkosh,

Wisconsin to collect a drug debt. Four people were present

when Thomas and Lee arrived: Meyers’s half-brother Kristopher Johnston, Meyers’s friend Ceilya Paez, Paez’s two-year-old

daughter, and Meyers. Soon after their arrival, a fight broke

out, at which point Lee pulled a gun and shot Meyers in the

abdomen. Meyers died shortly after being shot.

Lee and Thomas left the apartment and drove to Milwaukee where they met with Christopher Johnson. Johnson drove

Lee and Thomas to a gas station and then dropped Lee off at

a street corner in Milwaukee. Shortly thereafter, Johnson and

Thomas were pulled over by Milwaukee police and arrested.

Lee was apprehended in Chicago approximately one month

later.

Lee was found guilty following a five-day jury trial. He

appealed his conviction, which was affirmed by the Wisconsin

Court of Appeals. Lee then filed a postconviction motion with

the Wisconsin circuit court, which was denied. The Wisconsin

Court of Appeals affirmed and the Wisconsin Supreme Court

denied further review. He then filed a petition for a writ of

habeas corpus with the district court, which denied the petition
No. 13-1314 3

but certified three issues for appeal. We will address each in

turn.

II. DISCUSSION

The Antiterrorism and Effective Death Penalty Act, 28

U.S.C. § 2254, permits habeas relief only if the state-court

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” or “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.” 28 U.S.C. § 2254(d).

When reviewing a petition for a writ of habeas corpus, “we

review the district court’s findings of fact for clear error and its

rulings on issues of law de novo.” Bintz v. Bertrand, 403 F.3d 859,

865 (7th Cir. 2005) (quoting Denny v. Gudmanson, 252 F.3d 896,

900 (7th Cir. 2001)). As all three of Lee’s claims involve issues

of law, our review of the district court’s ruling is de novo. 

A. Identification Procedure

Lee first challenges the in-court identification by Christopher Johnson. Eleven days before Lee’s trial, the police showed

Johnson a photo array, which included pictures of both Victor

Thomas and Lee. Johnson was not able to pick out Lee’s photo

from the lineup,—though he was able to identify Thomas—but

told detectives that he could identify the man he gave a ride if

he saw him in person. In return for his testimony against Lee,

the detectives told Johnson that they would testify on his

behalf in his unrelated trial.
4 No. 13-1314

At trial, Johnson testified to the extent that he knew Lee. He

stated that though he had seen Lee “a couple of times ... I

never shook hands or none of that like that” and that he would

be able to recognize him if he “saw him today.” Thereafter,

Johnson identified Lee as the man in the courtroom who, while

riding with Thomas and himself, admitted “pop[ping]” a

“guy” in Oshkosh on the night of January 10, 2006. 

On cross-examination, Johnson stated: 

Q. So you knew that you were going to be able to

say I’m going to look at the defense table and

I’m going to point to the African American and

that’s going to be the guy; isn’t that correct?

A. Basically, yeah.

Lee argues that this statement proves that Johnson identified Lee solely on the basis of his race. He alleges that this fact,

coupled with Johnson’s inability to identify Lee in the photo

array and the favorable testimony received from detectives at

his own trial, constitutes an impermissible identification

procedure. 

We have held that a “witness’s identification violates a

defendant’s right to due process when the identification

procedure is so impermissibly suggestive as to give rise to a

very substantial likelihood of irreparable misidentification.”

United States v. Recendiz, 557 F.3d 511, 524 (7th Cir. 2009)

(internal quotation marks omitted). Yet “the admission of

evidence rarely implicates due process,” as courts typically

rely on other means—such as the Sixth Amendment rights to

counsel and confrontation—to safeguard the reliability of
No. 13-1314 5

evidence. United States v. Sanders, 708 F.3d 976, 983 (7th Cir.

2013). Due process will only prohibit evidence when it “is so

extremely unfair that its admission violates fundamental

conceptions of justice.” Perry v. New Hampshire, 132 S. Ct. 716,

723 (2012) (quoting Dowling v. United States, 493 U.S. 342, 352

(1990)). In determining whether an identification procedure

reaches this substantial threshold, we engage in a two-pronged

analysis. First, we determine whether the identification

procedure was suggestive and unnecessary. Sanders, 708 F.3d

at 984–85. Second, we determine under the totality of the

circumstances whether the procedurewasnonetheless reliable.

Id.

Lee’s assertion that Johnson was aware that Lee would be

the African-American at the defense table is neither suggestive

nor unnecessary. We have noted that “a defendant’s mere

presence at the defense table is not enough to establish a

violation of due process.” Recendiz, 557 F.3d at 525; see also

United States v. Bush, 749 F.2d 1227, 1232 (7th Cir. 1984). There

is nothing in the record to establish that Johnson’s identification was made solely on the basis of Lee’s race or that Johnson

was instructed to point to the African-American man at the

defense table. Rather, Johnson was simply testifying to his

knowledge of the situation at hand: he had seen Lee, an

African-American, on several occasions and was aware that he

was testifying at Lee’s trial. While the question itself may seem

fairly suspect, it does not itself establish any wrongdoing that

might implicate due process. Similarly, Johnson repeatedly

admitted that he was unable to pick out Lee’s picture in the

photo array, but could identify Lee if he saw him in person.

The fact that Johnson was not able to select Lee’s photo may
6 No. 13-1314

tend to discredit Johnson’s testimony, but this is not our

concern, for examining the accuracy of the identification falls

within “the exclusive province of the jury.” Recendiz, 557 F.3d

at 524. Johnson’s testimony took place in front of the jury,

“which observed and presumably weighed any arguably

suggestive circumstances.” Id. at 526; see also Johnson v.

McCaughtry, 92 F.3d 585, 597 (7th Cir. 1996) (though an in-court

identificationmay notbe “especially convincing,” that does not

render it inadmissible; the ultimate accuracy of the identification is to be determined by the jury as the trier of fact). Our role

is only to determine whether an identification is “so

impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.” Simmons v. United

States, 390 U.S. 377, 384 (1968). Neither the in-court identification nor the photo array meet this threshold.

Even if we found Johnson’s identification procedure to be

unnecessarily suggestive, however, it was nonetheless reliable

under the circumstances. The Supreme Court set forth several

factors for courts to use to determine whether an unduly

suggestive identification procedure was still to be considered

reliable under the circumstances: (1) the opportunity of the

witness to observe the criminal at the time of the crime (or

prior to the identification); (2) the witness’s degree of attention;

(3) the accuracy of the witness’s prior description of the

criminal; (4) the level of certainty demonstrated by the witness

at the time of the identification; and (5) the length of time

between the crime and the identification. Neil v. Biggers, 409

U.S. 188, 199–200 (1972).

Applying the factors to Johnson’s testimony, we find it was

sufficiently reliable to be admitted at trial. First, Johnson
No. 13-1314 7

testified that he was in the car with Victor Thomas and Lee

after the shooting and drove the two men around before

dropping Lee off on a Milwaukee street corner. He also stated

that at one point, he and Lee were alone in the vehicle and had

a brief discussion. Second, Johnson did admit that he was not

paying particular attention to Lee or the backseat where Lee

was located. As to the third factor, Johnson did not provide a

prior description of Lee, but did testify that he had seen Lee

driving around on several occasions. And while he could not

pick him out in the photo lineup, he repeatedly stated that he

would be able to identify Lee if he saw him in person. Fourth,

Johnson confirmed that he was “sure” that the man who was

in the car with him and Victor Thomas the night of the shooting was in fact Keith Lee. Finally, over nine months had passed

between the shooting and the in-court identification. 

Considering all of the factors, we do not find this testimony

to be unreliable. Although Johnson’s lack of attention to Lee on

the night of the shooting and the extended duration of time

between their initial encounter and the identification raise

some concern, the testimony was nonetheless constitutionally

reliable when considered with the other Biggers factors.

Certainly Johnson’s testimony was not received without some

flaws, as is most evidence that is properly examined, but these

are issues for the jury to decide in weighing any questionable

discrepancies. Manson v. Brathwaite, 432 U.S. 98, 116 (1977)

(“[E]vidence with some element of untrustworthiness is

customary grist for the jury mill. Juries are not so susceptible

that they cannot measure intelligently the weight of identification testimony that has some questionable feature.”) Accordingly, we find no error. 
8 No. 13-1314

B. Ineffective Assistance of Counsel

Lee also contends that he is entitled to an evidentiary

hearing on his claim of ineffective assistance of counsel. Lee’s

counsel appealed his conviction, which was affirmed by the

Wisconsin courts, but did not raise a claim of ineffective

assistance of trial counsel. Thereafter, Lee filed his postconvi- 1

ction motion for ineffective assistance of both trial and appellate counsel. Lee argued that his trial counsel’s investigation

into his alibi was deficient and that his attorney failed to

explain why he could not present both the alibi and credibility

arguments at trial. He also asserts that his appellate counsel

was ineffective in failing to raise the effectiveness claim in his

direct appeal and should have discernedsuch an obvious claim

from the record.

The Wisconsin Court of Appeals denied Lee’s motion for

postconvictionrelief. It found that the allegations regarding his

postconviction counsel’s performance were conclusory and

legally insufficient under the rule set forth in State v. Allen, 682

N.W.2d 433 (Wis. 2004). The court also held that Lee’s motion

was barred by the Supreme Court of Wisconsin’s ruling in State

v. Escalona-Naranjo, which holds that all issues not raised in a

previous postconviction motion or appeal are foreclosed from

being brought up in a subsequent postconviction motion

unless the petitioner can demonstrate “sufficient reason” for

the delay. 517 N.W.2d 154, 162 (Wis. 1994).

Lee’s appellate counsel challenged the (1) in-court identification of Lee by

1

Christopher Johnson and (2) whether Johnson’s testimony about a

conversation that occurredbetween Thomas and Lee constituted inadmissible hearsay.
No. 13-1314 9

The district court affirmed the decision, finding that, while

the motion was not barred on Escalona-Naranjo grounds, it was

nonetheless procedurally defaulted because he did not allege

sufficient facts to entitle him to relief. 

A claim will be procedurally defaulted—and barred from

federal review—if the last state court that rendered judgment

“‘clearly and expressly’ states that its judgment rests on a state

procedural bar.” Harris v. Reed, 489 U.S. 255, 263 (1989)

(quoting Caldwell v. Mississippi, 472 U.S. 320, 327 (1985)).

Accordingly, we will not entertain questions of federal law in

a habeas petition when the state procedural ground relied

upon in the state court “is independent of the federal question

and adequate to support the judgment.” Coleman v. Thompson,

501 U.S. 722, 729 (1991). An independent state ground will be

found “when the court actually relied on the procedural bar as

an independent basis for its disposition of the case.” Thompkins

v. Pfister, 698 F.3d 976, 986 (7th Cir. 2012) (citing Kaczmarek v.

Rednour, 627 F.3d 586, 592 (7th Cir. 2010)). A state law ground

is adequate “when it is a firmly established and regularly

followed state practice at the time it is applied.” Id.

The Wisconsin Court of Appeals relied on the Wisconsin

Supreme Court’s rule set forth in State v. Allen—which governs

when a petitioner asserts that he is entitled to an evidentiary

hearing—as its basis for denying Lee’s motion. The court

stated, “A WIS. STAT. § 974.06 motion must offer more than

conclusory allegations to be legally sufficient. See Allen, 274

Wis. 2d 568, ¶12. We agree with the circuit court that Lee’s

allegations of postconviction counsel’s ineffectiveness were

conclusory ... . The motion was not sufficient under Allen.”
10 No. 13-1314

This rule clearly served as an independent basis for the court’s

denial of Lee’s motion.

Lee argues that the application of Allen by the Wisconsin

Court of Appeals cannot be found to be an adequate ground

for denying relief. The rule requires a petitioner to provide

sufficient material facts, “e.g., who, what, where, when, why,

and how-that, if true, would entitle him to the relief he seeks.”

Allen, 682 N.W.2d at 436. Lee contends that the level of

specificity in his postconviction motion—as an incarcerated

defendant who was purportedly represented by ineffective

counsel at both the trial and appellate levels—should be

sufficient to withstand review under the Allen rule. Yet our

review of the adequacy of a state ground is limited to whether

it is a firmly established and regularly followed state practice

at the time it is applied, not whether the review by the state

court was proper on the merits. And the Allen rule is a wellrooted procedural requirement in Wisconsin and is therefore

adequate. See, e.g., State v. Negrete, 819 N.W.2d 749, 755 (Wis.

2012); State v. Balliette, 805 N.W.2d 334, 339 (Wis. 2011); State v.

Love, 700 N.W.2d 62, 68–69 (Wis. 2005); State v. McDougle, 830

N.W.2d 243, 247–48 (Wis. Ct. App. 2013). Consequently, we

find the state procedural requirement relied upon by the

Wisconsin Court of Appeals both independent and adequate.

Lee’s ineffective assistance claim is procedurally defaulted.

We can excuse a procedural default if a petitioner is able to

show both cause and prejudice or that failure to review the

claim will result in a fundamental miscarriage of justice.

Coleman, 501 U.S. at 750. Lee, however, does not make an

argument for either and we will not make it for him here. See

Franklin v. Gilmore, 188 F.3d 877, 884–85 (7th Cir. 1999). 
No. 13-1314 11

C. Hearsay

Lee also contends that Johnson’s testimony about a conversation between Thomas and Lee violated his rights under the

Confrontation Clause of the Sixth Amendment.The prosecutor

asked Johnson about a conversation that occurred while

driving to the gas station:

Q: After you spoke with Victor Thomas, did you

get back in the car and speak again with Keith

Lee?

A: No, I didn’t speak to anybody when I got back

in the car. Victor Thomas was speaking.

Q: Do you remember Victor ever telling Keith to say

what happened?

A: He sort of asked him to confirm it.

Q: Did Keith Lee say anything to you about what

happened in Oshkosh?

A: Not exactly. He just mumbled yeah, yeah, like

that.

(emphasis added). Lee argues that the italicized statement

is “non-testimonial hearsay that lacks the indicia of reliability”

and was admitted in violation of his rights under the Sixth

Amendment. The Sixth Amendment ensures that an accused

maintains “the right ... to be confronted with witnesses against

him.” U.S. Const. amend. VI. But this right under the Confrontation Clause is limited to evidence that is “testimonial.” Davis

v. Washington, 547 U.S. 813, 821 (2006); United States v. Ellis, 460

F.3d 920, 923 (7th Cir. 2006) (“Hearsay evidence that is
12 No. 13-1314

nontestimonial ‘is not subject to the Confrontation Clause.’”

(citing Davis, 547 U.S. at 821)). Thus, because the testimony by

Thomas was nontestimonial (as Lee concedes in his brief), the

Confrontation Clause does not apply and Lee’s Sixth Amendment claim must fail.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the

district court.
No. 13-1314 13

HAMILTON, Circuit Judge, concurring in part and concurring

in the judgment.

I join all portions of Judge Kanne’s opinion for the court

except Part II-A, dealing with Christopher Johnson’s in-court

identification of petitioner Lee as the person in his car on the

night of the murder and robbery. Johnson admitted on crossexamination that he knew he would be asked to identify the

man who was in his car that night, and that he expected to look

at the defense table and point to the only African-American at

that table.

As Judge Kanne points out, “a defendant’s mere presence at

the defense table is not enough to establish a violation of due

process.” Slip op. at 5 (emphasis added). Nevertheless, we

have often recognized the inherent suggestiveness of in-court

identifications where the defendant is seated at the defense

table. See, e.g., Johnson v. McCaughtry, 92 F.3d 585, 597 (7th Cir.

1996) (“much less reliable than fair line-ups and photo arrays”); Rodriguez v. Peters, 63 F.3d 546, 556 (7th Cir. 1995) (incourt procedure was suggestive, but no due process violation

if defendant’s location is only suggestive circumstance); United

States ex rel. Haywood v. O’Leary, 827 F.2d 52, 59 (7th Cir. 1987)

(totality of circumstances kept in-court identification from

being unreliable or violating due process); United States v. Bush,

749 F.2d 1227, 1232 (7th Cir. 1984) (recognizing suggestiveness

but finding no due process violation where defendant’s

location was only suggestive circumstance). Our colleagues in

the Second Circuit have addressed the problem in greater

depth. See, e.g., United States v. Archibald, 734 F.2d 938, 941–42

(2d Cir. 1984) (in-court identification of defendant, the only

black person in the courtroom, seated at the defense table, was
14 No. 13-1314

improperly suggestive, but errorwasharmless);United States v.

Brown, 699 F.2d 585, 593–94 (2d Cir. 1983)(describing appropriate protective measures for in-court identification where

witness has not made prior identification).

Johnson’s troubling admission that he planned to point out

the only African-American at the defense table suggests there

was no independent basis for his identification. The fact that he

was not able to identify Lee from photographs before trial

strengthens that suggestion. The combination of (a) the

inherent suggestiveness of an in-court identification of the

defendant at the defense table, (b) Johnson’s inability to make

an earlier identification, and (c) his remarkable admission that

he planned to identify the African-American at the defense

table raises a substantial question about whether the identification was sufficiently reliable to be admitted, even though its

flaws were fully aired before the jury. See generally Neil v.

Biggers, 409 U.S. 188, 199–200 (1972).

Our cases have yet to address whether and when a witness’s open admission that he identified the defendant based

on his race and location in the courtroom would indicate “a

very substantial likelihood of irreparable misidentification”

that might violate due process. Johnson, 92 F.3d at 595, quoting

Biggers, 409 U.S. at 198. In light of the circuit court cases cited

above, among others, I do not know how I would decide that

question if this were a direct appeal from a federal criminal

trial. But that is not the question we must decide.

The question before us is limited by the highly deferential

standard of review we apply to the state court’s decision under

the Antiterrorism and Effective Death Penalty Act of 1996. The
No. 13-1314 15

issue is not whether the admission of Johnson’s identification

violated the United States Constitution. The issue is only

whether the state court’s decision was “contraryto, orinvolved

anunreasonable application of, clearly establishedFederallaw,

as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). An unreasonable application of federal law

is different from a merely incorrect application of law, see

Harrington v. Richter, 131 S. Ct. 770, 785 (2011), citing Williams

v. Taylor, 529 U.S. 362, 410 (2000), for § 2254(d)(1) gives state

courts considerable latitude in applying federal law as determined by the Supreme Court. 

In the district court, Chief Judge Griesbach explained

persuasively why the state court’s decision here would not

justify relief under § 2254(d)(1). See Lee v. Baenen, No. 10-C-040,

2013 WL 364226, at *3 (E.D. Wis. Jan. 30, 2013). Petitioner Lee

has not rebutted that analysis with Supreme Court authority.

To the extent that Part II-A of my colleagues’ opinion seems to

apply a less deferential standard, one closer to a direct appeal

from a federal conviction, it says more than is necessary. On

the basis of the district court’s analysis, though, I agree with

my colleagues that we must affirm the denial of habeas corpus

relief based on the in-court identification by Johnson.