In the

United States Court of Appeals

For the Seventh Circuit

No. 07-2634

CLEVELAND C. BYNUM,

Petitioner-Appellant,

v.

BRUCE LEMMON,

Respondent-Appellee.

Appeal from the United States District Court

 for the Northern District of Indiana, South Bend Division.

No. 3:05-CV-374—Philip P. Simon, Judge.

ARGUED FEBRUARY 25, 2008—DECIDED MARCH 27, 2009

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. A Lake County, Indiana court

convicted Cleveland Bynum of murdering five people

and sentenced him to 300 years’ imprisonment. Bynum

filed a petition for a writ of habeas corpus under 28 U.S.C.

§ 2254, contending that his trial counsel was ineffective

in failing to put him on the stand at the hearing on his

motion to suppress his post-arrest confessions to the

murders. Bynum contends that his confession was

coerced and that, had he testified about the coercion, the
2 No. 07-2634

trial court would have granted his motion to suppress. The

district court denied Bynum’s petition and, because he

has not shown that he was prejudiced by his counsel’s

ineffectiveness, we affirm.

I.

On February 16, 2000, Bynum began arguing with his

friend Anthony Jeffers. Bynum was upset because Jeffers

had told people that Bynum was a drug dealer. A third

person, Elizabeth Daily-Ayres, witnessed the confrontation. Later, in the early hours of February 17, Bynum

resumed the argument, this time at Jeffers’s home. Jeffers’s

girlfriend, Angie Wallace, was present during this

second argument along with Wallace’s 18-month-old

daughter, her sister Susan, and Susan’s thirteen-year-old

son, “L.B.” That night, L.B., sleeping in a different room,

was awakened by five gunshots. L.B. testified at trial that,

immediately following the first few shots and while he

was still in the bedroom, he heard two men talking. He

testified that one voice was Bynum’s, even though he had

met Bynum only once before. According to L.B., Bynum

said “something about putting another shell in.” L.B. stated

that the other man, whose voice he did not recognize, said

“[D]on’t rush me,” and Bynum responded “[S]hoot her

in the head.” After Bynum and the second man departed,

L.B. left the bedroom and discovered that Jeffers, Angie

Wallace, and Susan Wallace were all dead. The 18-monthold child was spattered with blood, but she was still alive.

On that same evening in a different house, Elizabeth

Daily-Ayres, Sheila Bartee, and Michelle Fliris were
No. 07-2634 3

preparing for bed. According to Fliris, Daily-Ayres paged

someone and received a phone call a few moments later.

She then decided to go to the liquor store along with

Bartee. Fliris went to sleep, but awoke several hours later

to find that Daily-Ayres and Bartee had never returned

from the store. Fliris noticed a piece of paper Daily-Ayres

had left by the phone; on it was written the name “Chris”

as well as a phone number. (Bynum, whose middle name

is “Christopher,” often goes by the nickname “Chris.”) The

next day, police found Daily-Ayres’s and Bartee’s bodies

lying on the ground in a baseball park, riddled with gunshot wounds.

On February 18, officers arrested Bynum and held him

for two days on a probation violation. During that time,

Bynum made two statements to police. In his first statement, made on the day of his arrest, he admitted killing

Jeffers and the Wallace sisters. He also admitted that he

knew Daily-Ayres and had given her his pager number,

but insisted that he had not shot her or Bartee. Instead, he

reported that Daily-Ayres and Bartee were present at

Jeffers’s home when he shot the other three victims, but

that they left accompanied by two men, Deandre

MacIntosh and Terrell Jackson. Bynum acknowledged that he knew MacIntosh and Jackson intended to

kill Daily-Ayres and Bartee, but claimed that he had

nothing to do with those murders. According to the

arresting officers, they read Bynum his Miranda rights

before he gave his statement. Bynum also signed a waiver

form in which he acknowledged that he was advised of

his constitutional rights, including his right to counsel,

and that nonetheless he waived those rights. He also
4 No. 07-2634

acknowledged in writing that his statement was voluntary and that no one had threatened him.

Two days later Bynum signed a second, identical written

waiver and made a second statement. He confirmed that

he had killed Jeffers and the Wallaces. This time, however, he exonerated MacIntosh and Jackson, instead

claiming that Jeffers shot Daily-Ayres and Bartee before

Bynum killed him. He knew this, he said, because he

witnessed the murders and because Jeffers used Bynum’s

gun. Then, Bynum continued, Jeffers forced him at gunpoint to drag the bodies to the baseball park where they

were found. Bynum explained that he had walked back

to Jeffers’s house with Jeffers. Jeffers gave the gun back to

Bynum, but when they got into an argument and began

pushing each other, the gun accidentally went off, hitting

Jeffers. Angie and Susan Wallace began to yell and approached Bynum, who interpreted their conduct as a

threat and shot them both. Then, Bynum claimed, he

went home and, the next morning, threw his gun in a lake.

Before trial, Bynum met with his appointed counsel,

Charles Graddick. According to Bynum’s testimony at

his post-conviction hearing, he told Graddick that during

his interrogation, police threatened him with violence

when he asked for a lawyer. Bynum also reported that

the officers had handcuffed him to a chair for nine

hours, deprived him of food and water, and refused to

let him use the bathroom. Byum further claimed that

Officer Louis Donald told him that the police had

Bynum’s fiancée in custody and would charge her with

obstruction of justice and harboring a fugitive, events
No. 07-2634 5

that would require that their son enter child protective

services. It was only after seeing his fiancée at the police

station, Bynum continued, that he agreed to sign the

waiver form and make his first statement. Finally, Bynum

claimed that Donald fabricated the second confession.

Graddick did not respond to these concerns immediately,

but at trial, he moved to suppress Bynum’s confessions

on the theory that they were coerced. Graddick did not

ask Bynum to testify at the mid-trial suppression

hearing, instead questioning only the three officers who

took Bynum’s statements. The officers testified that

Bynum never asked for counsel, never told them he

was tired or hungry, and at no point during the interrogation seemed unwilling to talk to them. The officers

also denied physically threatening Bynum or coercing him

in any way, although they acknowledged that Bynum

seemed nervous and was worried about his family. Moreover, the State of Indiana introduced into evidence the

two waiver forms.

After the officers testified and counsel presented argument, the trial court judge ruled that Bynum’s confessions

were voluntary and denied the motion to suppress. The

judge explained that he found the officers’ testimony

credible, noting that “the police in no way interfered with

the voluntariness of the confession” and that “the defendant was properly Mirandized and apprised him of his

rights, and he was given an opportunity to bring in an

attorney if he desired to do so.” After the remainder of

the trial, a jury convicted Bynum of five counts of murder,

largely based on the confessions.
6 No. 07-2634

Bynum challenged his conviction on direct appeal to no

avail. He then sought postconviction relief in state court

with new counsel, arguing that his trial lawyer was

ineffective in failing to put him on the stand to testify at

the suppression hearing. At an evidentiary hearing,

Graddick testified that he did not recall Bynum ever

telling him that he had been prevented from obtaining a

lawyer, and maintained that if Bynum had told him

about that, he would have moved to suppress the statements before trial. Moreover, Graddick explained that

he decided to move to suppress the confessions during

trial rather than before because he did not want to give

the state advance notice of his trial strategy. And Graddick

stated that, in his view, the best way to show coercion

was to get the officers to tell inconsistent stories about

the interrogation. Finally, he described his fears that, if

put on the stand, Bynum’s version of events would not

withstand cross-examination:

Counsel: Why was it that if you did in fact have a

suppression hearing, you would not have

had Mr. Bynum testify in that portion of

the trial?

Graddick: I was afraid for Mr. Bynum because I had

had many discussions with Mr. Bynum,

and each time I’d have an at-length discussion with Mr. Bynum, I became more and

more sure that once he took the stand,

that he couldn’t hold up.

Counsel: All right. And what was it that he told you

about what had occurred at the police
No. 07-2634 7

station that would have led you to believe

that he could not hold up with respect to—

Graddick: Well, in part his version of what had taken

place, and when I would ask him questions about it, I was always able to pick

holes in what he was saying and make it

not believable.

Therefore, Graddick continued, he concluded it would not

be in Bynum’s best interest to testify.

A Lake County, Indiana court denied Bynum

postconviction relief. The court noted that Graddick

made “tactical choices to raise the issues that he believed had merit and to raise them in the way he

thought was in the best interest of his client.” Because

Graddick was skeptical that Bynum’s version of events

was true, the court continued, he reasonably attempted

to suppress the confessions using police testimony

alone. Finally, the court concluded that Graddick’s strategic decisions did not fall below prevailing professional

norms and did not prejudice Bynum.

Bynum sought review in the Indiana Court of Appeals,

arguing that the Lake County court erred in concluding

that Graddick’s performance was constitutionally adequate. The Court of Appeals disagreed. First, addressing

whether Graddick’s representation was deficient, the

court observed that, at the suppression hearing,

Graddick successfully established through questioning

the police officers that Bynum told the officers he was

afraid for his fiancee’s safety. Even after the trial court

denied the motion to suppress, noted the Court of Appeals,
8 No. 07-2634

Graddick sought to undermine the officers’ credibility by

questioning them about Bynum’s allegations that they

threatened him and his family. This aggressive questioning led the Court of Appeals to conclude that

Graddick’s performance was not deficient. The court

reasoned: “Mere disagreement with trial counsel’s handling of his defense does not make an ineffective

assistance claim.”

Moreover, continued the court, even if Graddick had

called Bynum to testify, Bynum would not have been

able to show that he had been prejudiced because the

trial court still could have reasonably denied the motion

to suppress. Assuming that Bynum’s testimony had been

offered at the suppression hearing, the court explained,

the trial court would still have weighed that testimony

against the officers’ statements as well as the waiver

forms Bynum had signed. The court concluded that,

because Bynum had failed to substantiate his account of

events, the trial court could not have been expected to

credit his claims in light of other contrary evidence. The

Court of Appeals therefore affirmed the denial of relief

and the Indiana Supreme Court declined to hear the case.

Bynum next turned to federal court, renewing his

argument that Graddick was ineffective in failing to put

Bynum on the stand and also advancing a new theory:

that Graddick had failed to adequately review the state’s

discovery, his own notes, and Bynum’s letter to him

before trial, and additionally had failed to spend enough

time discussing the case with Bynum, his family, and

witnesses. The district court rejected the latter claim as
No. 07-2634 9

procedurally defaulted because Bynum had not exhausted his state court remedies. And the court concluded

that the former claim fared no better. Even though the

court concluded that Graddick was clearly ineffective—Bynum’s testimony was the only evidence of coercion there was, and his testimony at the suppression

hearing, outside the presence of the jury, would not

have damaged his case—the court reasoned that Bynum

could not show that he was prejudiced by Graddick’s

ineffectiveness. The court therefore concluded that the

state appellate court’s ruling on the question of prejudice was not an unreasonable application of clearly established law and denied Bynum’s petition for collateral

relief. The court also granted a certificate of appealability

limited to whether Graddick was ineffective in failing

to have Bynum testify at the suppression hearing.

II.

Bynum’s appeal challenges the state appellate court’s

conclusions as to both prongs of his claim that his trial

counsel was ineffective. He argues that the Indiana Court

of Appeals erred in concluding that Graddick’s performance was objectively reasonable. And he contends that

both the state appellate court and the district court

should have concluded that he was prejudiced by

Graddick’s ineffectiveness. Our review of the district

court’s decision is de novo. See Julian v. Bartley, 495 F.3d

487, 491 (7th Cir. 2007).

We begin with limitations on the scope of our review. We

may grant collateral relief from Bynum’s state-court
10 No. 07-2634

conviction only if the state courts’ adjudication of his

ineffectiveness claim resulted in a decision that was

either contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court

of the United States, or if the state courts’ decision was

based on an unreasonable determination of the facts

given the evidence before the state courts. 28 U.S.C.

§ 2254(d); Barrow v. Uchtman, 398 F.3d 597, 603 (7th Cir.

2005). A state-court decision is contrary to clearly established law if it applies a legal standard inconsistent with

governing Supreme Court precedent or contradicts the

Supreme Court’s treatment of a materially identical set

of facts. Bell v. Cone, 535 U.S. 685, 694 (2002) (citations

omitted); Goodman v. Bertrand, 467 F.3d 1022, 1026 (7th Cir.

2006). A state court unreasonably applies Supreme

Court precedent if the state court identifies the correct

legal rule but applies it in a way that is objectively unreasonable. Yarborough v. Gentry, 540 U.S. 1, 5 (2003); Gilbert v.

Merchant, 488 F.3d 780, 790 (7th Cir. 2007). Our mere

disagreement with a state court’s analysis is, however, not

enough to meet this standard. Jackson v. Frank, 348 F.3d

658, 662 (7th Cir. 2003). Rather, the state court’s analysis

is reasonable so long as it stays within the “boundaries

of permissible differences of opinion.” Id.

Bynum believes that he is entitled to collateral relief

because his trial counsel did not competently represent

him, thereby depriving him of the right to effective assistance of counsel guaranteed by the Sixth and Fourteenth

Amendments. See Gideon v. Wainright, 372 U.S. 335 (1963);

Jackson v. Miller, 260 F.3d 769, 775 (7th Cir. 2001). A convicted defendant challenging counsel’s effectiveness
No. 07-2634 11

must satisfy both prongs of the well-known Strickland

test: he must show that his attorney’s representation was

objectively deficient, and he must show that he was

prejudiced by the substandard performance. Strickland v.

Washington, 466 U.S. 668, 687-96 (1984); Allen v. Chandler,

555 F.3d 596, 600 (7th Cir. 2009). Bynum argues that his

trial counsel, Graddick, was objectively deficient in

failing to have him testify at the suppression hearing, and

that had he testified, his confessions would have been

suppressed, leaving the state with insufficient evidence

to support his conviction.

Turning to the first prong of the Strickland test, we

agree with Bynum that the Indiana Court of Appeals

unreasonably concluded that Graddick’s decision to

keep him from testifying fell within the range of competent

legal representation. Bynum’s confessions were the crux

of the case against him. The suppression motion was

therefore critical to the defense: without the confessions,

the prosecution would have been left to depend on the

testimony of a thirteen-year-old boy who, after meeting

Bynum only once, merely heard a voice from another

room that he thought was Bynum’s. Moreover, Bynum’s

account of the officers’ coercive conduct during his interrogation was the only available evidence of coercion. True,

Graddick testified at the post-conviction hearing that

he intended to elicit evidence of coercion through the

officers’ testimony. But this plan, as the district court aptly

observed, is “not trial strategy; it is television fantasy.”

Bynum v. Buss, 2007 WL 1749225, at *5 (N.D. Ind. June 14,

2007); see also Goodman, 467 F.3d at 1029 (observing

that “[t]here is little tactical wisdom in counsel resting on
12 No. 07-2634

his hands and assuming the government would help

make the defense case for him”); Barrow, 398 F.3d at 605

(rejecting claim that counsel’s failure to present any

evidence was legitimate strategic move). In any event,

the “strategy” failed, as a competent attorney might

expect: the officers unanimously and consistently stated

that they had not coerced Bynum. And without the admission to coercion that Graddick had hoped the officers

would give, he was left with no evidence that

Bynum’s confessions were coerced. A motion to suppress

allegedly involuntary confessions cannot succeed without

at least some evidence that the confessions were coerced.

See Schneckloth v. Bustamonte, 412 U.S. 218, 225-26 (1973)

(holding that confession is involuntary only if police

coercion or overreaching overbore the accused’s will and

caused the confession); Conner v. McBride, 375 F.3d 643,

651 (7th Cir. 2004) (same).

Moreover, Graddick’s reason for keeping Bynum off

the stand—that he could not withstand cross-examination

and it might prejudice his defense—was baseless. Of

course Bynum would have been cross-examined,

perhaps rigorously so. But the mid-trial suppression

hearing was conducted outside the jury’s presence. Under

Indiana law, the question whether to suppress the confessions was a question for the judge alone. See Miller v.

State, 770 N.E.2d 763, 772-73 (Ind. 2002). And in any case,

as the district court observed, “testimony on a motion to

suppress is not admissible at trial as evidence of the

defendant’s guilt.” Thomas v. State, 734 N.E.2d 572, 574

(Ind. 2000). Thus, even if Bynum had crumbled under

cross-examination, it would not have affected the jury’s

estimation of his guilt.
No. 07-2634 13

The only way Bynum could have succeeded on his

motion to suppress was to put forth evidence of coercion

through his own testimony. And any prejudicial testimony Bynum gave at the suppression hearing would not

have affected any other part of the proceedings. Graddick

thus had no reasonable option but to put Bynum on

the stand. Although we review trial counsel’s performance deferentially, see Ben-Yisrayl v. Buss, 540 F.3d 542,

547 (7th Cir. 2008), we cannot conclude in this case that

Graddick’s decision to keep Bynum from testifying was

sound trial strategy. Rather, it fell well outside the “range

of competence demanded by attorneys in criminal cases.”

See Strickland, 466 U.S. at 687; Barrow, 398 F.3d at 605. The

conclusion reached by the Indiana Court of Appeals, that

Graddick’s failure to call Bynum as a witness was a

legitimate trial strategy, is therefore an unreasonable

application of the Strickland standard. See 28 U.S.C.

§ 2254(d)(1).

To succeed in obtaining relief, however, Bynum must

also show that he was prejudiced by Graddick’s ineffectiveness. Under Strickland, a defendant must prove that

there is a reasonable probability that, but for his lawyer’s

mistakes, the result of the proceeding would have been

different. Strickland, 466 U.S. at 694; see also Toliver v.

McCaughtry, 539 F.3d 766, 774 (7th Cir. 2008). A reasonable

probability means “a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694;

see also United States v. Wilson, 237 F.3d 827, 832 (7th Cir.

2001) (noting in different context that “reasonable probability” is not more than 50%). To succeed on this prong

of the Strickland test, Bynum must show that, had he
14 No. 07-2634

testified, there was both a reasonable probability that he

would have prevailed on the motion to suppress and a

reasonable probability that, if his confessions were suppressed, he would have been acquitted. Strickland, 466

U.S. at 694; Richardson v. Briley, 401 F.3d 794, 803 (7th Cir.

2006).

We can readily assume that Bynum would have been

acquitted had the two confessions been suppressed: the

prosecution would have been left with no evidence of

Bynum’s guilt except the testimony of L.B., significantly

weakening the state’s case. See Eckstein v. Kingston, 460

F.3d 844, 848 (7th Cir. 2006) (observing that verdict that is

only weakly supported by the record is more likely to

have been affected than one that is overwhelmingly

supported). The more difficult question is whether it is

reasonably probable that Bynum would have prevailed on

the motion to suppress had he testified. And the answer

to that question depends on the likelihood that the trial

court would have credited Bynum’s testimony over the

contrary evidence—the three police officers’ testimony

and Bynum’s signed waivers of rights.

We know that the trial court assessed the testimony of

the officers (which Bynum had the opportunity to challenge at the suppression hearing) and concluded that

they were credible. We must presume that this conclusion was correct, since it was reached after a hearing

on the merits and is supported by the record. See Maggio

v. Fulford, 462 U.S. 111, 116-18 (1983); Armstrong v. Young,

34 F.3d 421, 426 (7th Cir. 1994). Although the trial judge

did not assess during the trial the credibility of Bynum’s
No. 07-2634 15

allegations of coercion, the judge implicitly made such

an assessment during the postconviction proceedings,

where Bynum offered his testimony about coercion to

that same judge. We may infer from the judge’s denial of

postconviction relief that he did not think the testimony

would have changed the outcome of the suppression

hearing. See United States v. Toro-Pelaez, 107 F.3d 819, 825

(10th Cir. 1997) (district court’s denial of motion to suppress implicitly resolved credibility issues in favor of

police officers rather than defendant); Armstrong, 34 F.3d

at 426-27 (ruling that where one version of facts would

have led court to grant motion to suppress, and court

denied the motion, federal habeas corpus court could

infer that court rejected that version of the facts). It would

have been useful had the postconviction court explained

why it did not credit Bynum’s testimony, but we cannot

say that its ultimate conclusion is unreasonable or that

the Indiana Court of Appeals unreasonably adopted it. We

conclude, therefore, that the Court of Appeals permissibly

ruled that it was not reasonably probable that Bynum

would have prevailed on the motion to suppress had he

testified.

The decision of the Indiana Court of Appeals on the

question of prejudice is acceptable for another reason. That

court filled in the gap left by the postconviction court by

reasonably answering the question of how to weigh

Bynum’s testimony against the officers’ testimony and

the signed waiver forms:

At trial, the three detectives provided consistent

testimony that contradicted Bynum’s assertions and

the State introduced Bynum’s two signed waiver
16 No. 07-2634

forms executed before each statement was made.

Bynum is correct that a defendant’s assertions cannot

be discounted merely because of his status as a defendant or the heinousness of the underlying crimes. But

a court also cannot be expected to accept wholesale

unsubstantiated accusations of egregious police misconduct.

This conclusion is not based on an unreasonable understanding of Strickland or an unreasonable view of the facts.

See 28 U.S.C. § 2254(d). Even if Bynum had testified, the

only support for his claims of coercion would have

been his own uncorroborated and self-serving testimony.

He did not present any physical evidence of coercion

or first-hand witness accounts of the interrogations.

Without more support to Bynum’s story, it was

permissible for the state appellate court to conclude that

there was not a reasonable probability that the trial court

would have accepted Bynum’s version of events. See

Mahaffey v. Page, 151 F.3d 671, 683-84 (7th Cir. 1998)

(holding that petitioner was not prejudiced by counsel’s

decision not to call sole witness to petitioner’s alleged

beating at suppression hearing because testimony of

arresting officers and assistant attorneys, as well as

absence of physical evidence of coercion, made it

unlikely that motion to suppress the confessions would

have been granted), overruled on other grounds by

Mahaffey v. Page, 162 F.3d 481 (7th Cir. 1998); United States

v. Madison, 689 F.2d 1300, 1308 (7th Cir. 1982) (holding that

consistent testimony given by three officers made it

unlikely that defendant’s motion to suppress his confession as coerced would have been granted even though

two witnesses to the interrogation had not testified at
No. 07-2634 17

suppression hearing); see also United States v. Dean, 550

F.3d 626, 630 (7th Cir. 2008) (trial court’s decision to

credit testimony of two officers over that of defendant

was not clearly erroneous where there was no evidence

that officers had testified untruthfully). The state courts’

judgment that Bynum did not satisfy the prejudice

prong of Strickland is thus within the “boundaries of

permissible differences of opinion.” Jackson, 348 F.3d at 662.

III.

The district court correctly denied Bynum’s petition for

a writ of habeas corpus. Bynum’s claim that his trial

counsel was ineffective for failing to put him on the

stand to testify at his suppression hearing required him

to show both that counsel was ineffective and that counsel’s mistakes prejudiced him. Although we conclude

that counsel was ineffective, Bynum was not prejudiced.

The state courts ruled that it was not reasonably probable

that, had Bynum testified, he would have succeeded on

his motion to suppress. This conclusion was neither

contrary to Supreme Court precedent nor based on an

unreasonable determination of the facts in light of the

evidence presented at Bynum’s trial and at the

postconviction evidentiary hearing. The state court therefore reasonably concluded that Bynum was not prejudiced by his attorney’s failure to have him testify at the

suppression hearing.

AFFIRMED.

3-27-09