In the

United States Court of Appeals

For the Seventh Circuit ____________________

Nos. 13-3076 & 13-3777

DANIEL MAKIEL,

Petitioner-Appellant,

v.

KIM BUTLER, Warden,

Respondent-Appellee.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 CV 9644—James B. Zagel, Judge.

____________________

ARGUED NOVEMBER 10, 2014 — DECIDED APRIL 10, 2015

____________________

Before WOOD, Chief Judge, and ROVNER and HAMILTON,

Circuit Judges.

HAMILTON, Circuit Judge. Petitioner Daniel Makiel was 

convicted in an Illinois state court for the murder of Katherine Hoch and the armed robbery of a gas station where she 

worked. He appeals from the district court’s denial of his petition for a writ of habeas corpus and raises two claims on 

appeal. First, he argues that his appellate counsel was constitutionally ineffective under Strickland v. Washington, 466 U.S. 

668 (1984), for failing to challenge two evidentiary rulings 
2 Nos. 13-3076 & 13-3777

during his direct appeal. Second, he contends that his constitutional right to compulsory process was violated when the 

trial court prevented a witness from testifying on his behalf.

We affirm. Although there were some problems in the 

state courts’ handling of Makiel’s case, he is not entitled to 

federal habeas corpus relief. The state courts did not apply 

federal law unreasonably in concluding that Makiel’s counsel was not ineffective in selecting the issues to pursue on 

appeal. The evidence shows that his counsel selected the issues with care. One issue she raised drew a remand, and although the other two issues did not prevail, they both drew 

a dissenting opinion. The first issue Makiel complains she 

did not raise—an evidentiary ruling preventing the defense 

from impeaching prosecution witness Allen Martin with a 

pending forgery charge—was not so clearly stronger than 

the issues she did raise that the state courts were required to 

find ineffective assistance of counsel under Strickland. The 

second issue she did not raise—the trial court’s exclusion of 

Brian Spodach’s testimony about the reputations of prosecution witnesses Martin and Shane Miller—was not clearly 

stronger than the issues she raised.

The state court also did not act unreasonably when it 

found no violation of Makiel’s constitutional right to compulsory process. The trial court excluded the testimony of 

eleven-year-old Tim Anderson, who would have blamed another young boy (not the adult Makiel) for the murder. This 

proffered testimony was uncorroborated at the time of trial, 

but its exclusion was an error. That was the basis for the state 

appellate court’s remand in the original appeal for an evidentiary hearing. See People v. Makiel, 635 N.E.2d 941 (Ill.

App. 1994), from which we draw most facts in this opinion. 
Nos. 13-3076 & 13-3777 3

By the time the state courts decided the constitutional issue, 

however, Anderson had completely disavowed his proffered 

trial testimony, and there was no reason to think his proffered trial testimony would have been probative or reliable. 

Under the circumstances, the state courts’ denial of relief was 

not an unreasonable application of U.S. Supreme Court 

precedent. 

I. Factual and Procedural History

The complex history of this case spans more than twentyfive years. Several of our ultimate conclusions depend on 

evaluating the record as a whole, so we must describe in 

some detail each stage of Makiel’s process through the state 

and federal courts.

A. The Murder of Katherine Hoch

Katherine Hoch managed a Mobil gas station in Calumet 

City, Illinois. On the night of October 19, 1988, the gas station 

was robbed. She was taken into a back room and shot in the 

back of the head. The State initially charged three men with 

the murder and armed robbery: Samuel Ilich, Todd Hlinko, 

and petitioner Daniel Makiel. Ilich went to trial and was acquitted. After Ilich’s acquittal, Hlinko reached a plea agreement with the State. He agreed to testify against Makiel in 

exchange for dropping the murder and armed robbery 

charges against him. Makiel was tried, convicted, and sentenced to life in prison. Makiel maintains his innocence.

B. Pretrial Proceedings

On March 2, 1989, several months after the murder and 

robbery, police arrested Todd Hlinko on a drug offense, 

which also violated his probation from an earlier aggravated 

battery conviction. While in custody that day, Hlinko signed 
4 Nos. 13-3076 & 13-3777

a statement saying that on October 19, 1988, Makiel went into the Mobil gas station alone, returned, and jumped back 

into the car, and that Makiel, Hlinko, and Ilich then drove to 

Makiel’s house. According to the statement, Hlinko saw a 

purse at Makiel’s house that night before they went to sleep.

On March 16, 1989, the police arrested Hlinko again, this 

time for the murder and armed robbery at the gas station. 

After questioning by the police, Hlinko signed a second 

statement that was inconsistent with his first statement. In 

the March 16 statement, he again placed himself, Ilich, and 

Makiel at the gas station, but this time he told police that he 

stayed in the car while Makiel and Ilich went inside. He also 

told police that after Makiel returned to the car, he saw Makiel throw something out of the window but never saw a 

gun.

On April 7, 1989, Makiel was indicted for the murder and 

armed robbery at the gas station. At the time, he was already 

in the custody of the Indiana Department of Correction on 

an attempted murder conviction. Indiana held an extradition 

hearing where Makiel was represented by counsel. The extradition request was granted, and Illinois authorities transported him from Indiana to Illinois on October 20, 1989.

During the trip, an Illinois prosecutor questioned him 

about the crime. Makiel answered some of the questions and 

gave an arguably incriminating statement. Before trial, he 

moved to suppress this statement. The state trial court denied his motion.
Nos. 13-3076 & 13-3777 5

C. Trial

Makiel went to trial in February 1991.1 No physical evidence directly linked him to the crime scene. The prosecution’s case rested primarily on witness testimony, especially 

from Hlinko, who reached a plea agreement with the State in 

October 1990 in exchange for testifying against Makiel.

1. Hlinko’s Plea Agreement

Hlinko’s plea agreement in the murder case was unusually generous. Hlinko first pled guilty to the probation violation based on the sale of narcotics that led to his first arrest 

on March 2, 1989. Without any plea agreement on that 

charge, he was sentenced to five years in prison. His plea to 

the probation violation admitted the sale of narcotics, and he 

faced another possible fifteen years in prison on that charge.

When the State first approached Hlinko to offer a reduced prison sentence in exchange for testifying against 

Makiel, he refused. Ilich was then acquitted of the murder 

and armed robbery in a separate trial. After Ilich’s acquittal, 

the State went back to Hlinko and made a much more generous offer: in exchange for his testimony against Makiel, 

Hlinko would receive five years in prison on the pending 

1 Judge Paul T. Foxgrover presided over Makiel’s trial. Shortly after 

the trial concluded, Judge Foxgrover was convicted of stealing fines he 

imposed on defendants and of forgery. See People v. Fair, 738 N.E.2d 500, 

502 (Ill. 2000); accord, Terry Wilson, Foxgrover Sentenced to 6 Years for 

Theft and Forgery as Judge, Chicago Tribune (July 15, 1992), available at 

http://articles.chicagotribune.com/1992-07-15/news/9203030778_1_defendantssentenced-cook-county-circuit-judge (last visited April 9, 2015). Judge Foxgrover’s crimes have not been an issue in this federal habeas corpus action.

 
6 Nos. 13-3076 & 13-3777

narcotics charge, which would run concurrently with the 

five-year term on the probation violation, plus the State 

would drop the murder and armed robbery charges. In effect, he would face no additional punishment on the narcotics charge or for the murder and armed robbery. This time, 

Hlinko accepted the deal.

2. Hlinko’s Testimony

At trial, Hlinko testified that on October 19, 1988, he, 

Makiel, and Ilich were driving a blue Oldsmobile Cutlass 

442 belonging to a friend, John Miller, around Calumet City. 

In later testimony, John Miller said that he had loaned the car 

to Makiel and Hlinko and noticed from its condition the next 

day that it had been driven the night before.

According to Hlinko, at about 11:00 p.m. Makiel said he 

“would stop and get some money.” They pulled up to the 

Mobil gas station and parked just off the road. They waited 

in the car for a few minutes until the two customers in the 

gas station had left. Then they parked the Cutlass next to a 

white van, which belonged to Katherine Hoch.

Hlinko testified that Makiel got out of the car, and—

contrary to his earlier statements to police—that Hlinko 

himself followed Makiel into the gas station. As they entered, Hlinko saw Hoch walking from the counter toward a 

back room. Makiel told Hlinko to “watch out,” pointed a 

gun at Hoch, grabbed her arm, and led her to the back room. 

As he acted as a lookout, Hlinko heard Makiel demand 

money from Hoch and heard noises like drawers slamming. 

Then he heard a single gunshot. Makiel left the back room 

holding the gun and a purse and went behind the counter to 

the cash register. Makiel picked up an envelope from the 
Nos. 13-3076 & 13-3777 7

register, took two packs of cigarettes, and handed the cigarettes to Hlinko. Hlinko did not see anyone else in the gas 

station at the time. He estimated that they had been inside 

the store for only a few minutes.

Hlinko and Makiel returned to the car, and Makiel put 

the purse under the driver’s seat. Once inside the car, Hlinko 

repeatedly asked Makiel, “What the hell was going on?” 

Makiel told Hlinko that “something went wrong” inside the 

station but not to worry about it.

Hlinko testified that during the ensuing car ride, they 

stopped in an alley near Ilich’s house. Makiel left the car 

with the purse and walked toward a dumpster. Hlinko did 

not see what Makiel did at the dumpster, but he noticed that 

when Makiel returned to the car, he no longer had the purse 

with him.

At about 11:30 p.m., the men reached the home of a 

friend, Shane Miller (no relation to the John Miller who 

owned the Cutlass). Shane Miller invited Makiel, Hlinko, 

and Ilich into his house, and the four of them smoked some 

marijuana. About five minutes after smoking, all four drove 

in the Cutlass to the Calumet Expressway. Makiel, who was 

driving, slowed the car down and took the gun from his 

pants as they crossed a bridge near Calumet City. He handed 

the gun to Hlinko and told him to get rid of it. Hlinko threw 

the gun out of the passenger-side window and into the CalSag River. Shane Miller, sitting in the backseat, asked Hlinko 

what he threw out the window. Hlinko said it was a gun.

The four men then returned to the same Mobil gas station 

to get some gas. When they arrived, they saw police cars in 

the parking lot. A police officer stopped their car, told them 
8 Nos. 13-3076 & 13-3777

that something had happened, and directed them to leave. 

The four men then drove to Makiel’s house, arriving around 

midnight. Hlinko and Makiel went upstairs to Makiel’s bedroom, while Ilich and Shane Miller used the downstairs 

bathroom. During the moments before Ilich and Miller entered the bedroom, Hlinko again asked Makiel what had 

happened, and Makiel again told him that something had 

gone wrong but not to worry. After Ilich and Miller entered 

the room, Hlinko heard Makiel tell Miller about the shooting.

At about 1:00 a.m., John Pullybank and his girlfriend arrived at Makiel’s house. No one said anything to them about 

the gas station incident. Pullybank and his girlfriend offered 

to go out and buy more alcohol. To Hlinko’s surprise, Makiel 

contributed $20 for himself, Hlinko, and Ilich. Hlinko testified that the $20 surprised him because Makiel usually had 

no money on him and Hlinko had paid for everything earlier 

that evening. In later testimony, Pullybank said that he was 

friends with Hlinko, Makiel, and Ilich, but he denied seeing 

Shane Miller while visiting Makiel’s house that night. He also did not know for certain whether he had visited Makiel’s 

house on the night in question.

On cross-examination, defense counsel attacked Hlinko’s 

credibility in three main ways. First, counsel confronted 

Hlinko with his two earlier statements to police, which were 

inconsistent with each other and with his testimony at trial. 

In fact, at several points during cross-examination, Hlinko 

admitted that he “lied” to police during earlier parts of their 

investigation. Second, counsel confronted Hlinko with a letter he sent to Makiel in April 1989 (before he agreed to testify against Makiel) apologizing for falsely implicating him in 
Nos. 13-3076 & 13-3777 9

his earlier statements to police. In that letter, Hlinko also 

wrote that police officers had beaten him when he initially 

denied knowing anything about the murder. Third, counsel 

walked through Hlinko’s prior criminal history and the details of his generous plea agreement with the State.

3. Shane Miller’s Testimony

The prosecution called Shane Miller to corroborate 

Hlinko’s testimony. Miller testified that he was in the Cutlass 

with Makiel, Hlinko, and Ilich on the night of October 19 (after the murder occurred) and saw Makiel hand something to 

Hlinko while the men were on the Calumet Expressway. According to Miller, Makiel told Hlinko to get rid of it, and 

Hlinko tossed it out the window into the Cal-Sag River. Miller asked Hlinko what it was, and Hlinko told him it was a 

gun.

Shane Miller also testified that the four men stayed at 

Makiel’s house that night for about twenty-five minutes. 

During that time, Makiel told Miller that he, Hlinko, and 

Ilich had gone to the Mobil gas station and that Makiel had 

shot the manager. Another man, Brian Spodach, later

dropped by Makiel’s house and gave Miller a ride to Miller’s 

sister’s house.

On cross-examination, defense counsel confronted Shane 

Miller with a signed statement from February 1990 saying 

that his earlier statements to police implicating Hlinko and 

Makiel in the gas station murder were untrue. He testified 

that the statement was written by Hlinko’s mother and that 

he signed the statement because she begged him. Defense 

counsel also pointed out that Shane Miller waited approxi-
10 Nos. 13-3076 & 13-3777

mately five months before telling the police what he knew 

about the crime.

4. Allen Martin’s Testimony

The prosecution also called Allen Martin to bolster 

Hlinko’s testimony. Martin testified that at about 11:00 p.m. 

on October 19, 1988, he and his girlfriend stopped at the 

Mobil gas station to buy gas. He recognized John Miller’s 

distinctively-painted Cutlass 442 parked along the fence on 

the east side of the gas station. He saw his friends—Makiel, 

Hlinko, and Ilich—sitting in the Cutlass. After he paid for his 

gas, he waved to the three men, who were still sitting in the 

Cutlass, got back in his car, and drove to a game room. He 

estimated that he was at the Mobil station for a total of three 

minutes and at the game room for about twenty minutes before he left to drive his girlfriend home. On the way, Martin 

passed the Mobil station and saw an ambulance and police 

cars. He read about the murder in the newspaper and later 

found out that his friends had been implicated in the crime. 

Martin testified that it took him a while to make a connection between having seen his friends at the gas station on 

October 19 and their possible involvement in the murder.

5. Martin’s Pending Forgery Charge

On cross-examination, Makiel’s counsel attempted to impeach Martin in several ways. Counsel had Martin admit 

that he (1) had been drinking the night of the murder, (2) 

waited a long time before coming forward to the police, and 

(3) denied who he was when he was initially approached by 

a defense attorney. 

Makiel’s counsel also attempted to impeach Martin with 

a pending forgery charge. Counsel asked Martin whether he 
Nos. 13-3076 & 13-3777 11

had been charged with forgery, and Martin flatly denied it. 

Defense counsel then informed the court at a sidebar conference that he wanted to impeach Martin by introducing a certified copy of the pending charge. During this sidebar, the 

State did not contest the fact that Martin had a pending forgery charge. The trial court nevertheless barred defense 

counsel from introducing the charge and ordered both sides 

not to discuss it further in front of the jury.

6. Prosecutor Quinn’s Testimony

Assistant State’s Attorney Patrick Quinn testified that on 

March 21, 1989—before Makiel was indicted—he interviewed Makiel in the presence of police investigators after 

reading him his Miranda rights. Makiel denied knowing anything about the murder. Quinn informed Makiel that a witness had seen him with Hlinko and Ilich at the Mobil gas station around the time of the murder on October 19, 1988. At 

that point, Quinn testified, Makiel said that he remembered 

that he had stopped at the gas station on that night with 

Hlinko and Ilich to buy some cigarettes.

7. Physical Evidence

A Chicago sanitation employee testified that on October 24, 1988, he found a purse containing Hoch’s driver’s license in a trash can in an alley less than ten minutes from 

Ilich’s home. Hoch’s husband testified that the purse belonged to his wife. A forensic scientist and fingerprint expert 

analyzed the purse and found sixteen latent prints suitable 

for comparison. Eight prints belonged to Hoch, but none of 

the remaining eight prints matched Makiel, Hlinko, or Ilich.

The first police officer to arrive at the crime scene testified that he found a .38-caliber shell casing in the back room 
12 Nos. 13-3076 & 13-3777

of the gas station, but it yielded no suitable fingerprints. Nor 

could the evidence technician find any suitable prints inside 

or outside the gas station. Divers searched the Cal-Sag River 

for the murder weapon but did not find it.

8. Makiel’s Alibi Defense

Makiel presented an alibi defense. His sister Laura Kobak 

testified that he was babysitting on the night of the murder. 

Kobak testified that Makiel agreed to babysit so that she and 

her boyfriend could celebrate her birthday. According to her 

testimony, Makiel, Hlinko, and two others—Cory and Lisa 

Majszak—arrived about 6:30 p.m. on October 19, 1988. When 

Kobak returned around midnight, Makiel and Hlinko were 

alone with the children. In addition, Makiel presented several witnesses who testified that they had stopped by the gas 

station around 11:00 p.m. on October 19 and had not seen a 

blue Cutlass or a white van.

Tony Rodriguez testified that he and another man visited 

Kobak’s house sometime after 8:00 p.m. on October 19. According to Rodriguez, when he arrived, Makiel, Hlinko, and 

both Majszaks were babysitting Kobak’s children. He also 

testified that he had seen John Miller’s Cutlass 442 “up on 

jacks” in Makiel’s driveway earlier that day.

To rebut Makiel’s alibi defense, the prosecution called 

Cory and Lisa Majszak, who testified that they did not 

babysit with Makiel and Hlinko on the night of the murder. 

They testified that they babysat at Kobak’s house with Makiel and Hlinko only once, sometime after October 23, 1988. 

They also testified that they did not see Rodriguez on the 

evening they babysat with Makiel and Hlinko. The State also 

called a police investigator who testified that when he first 
Nos. 13-3076 & 13-3777 13

spoke to Rodriguez about visiting Kobak’s house in October 

1988, Rodriguez did not know the exact date of the visit.

9. Brian Spodach’s Potential Testimony

Defense counsel also called Brian Spodach. Recall that 

Shane Miller testified that Spodach came by Makiel’s house 

and gave Miller a ride on the night of October 19, 1988. 

Spodach testified that he neither went to the house nor gave 

Miller a ride that night. In addition, defense counsel sought 

to introduce testimony from Spodach about Martin’s and 

Shane Miller’s reputations for truthfulness. The trial court 

excluded the evidence. According to defense counsel’s proffer, Spodach would have testified that he knew their reputations based on his contacts with other people in the community and that they had reputations for being “liars.”

10. Tim Anderson’s Potential Testimony

Makiel’s counsel then sought to introduce the testimony 

of Tim Anderson. According to counsel’s proffer, Anderson 

would have testified that Makiel had nothing to do with the 

murder and armed robbery. Anderson was prepared to testify that on October 19, 1988, when he was nine years old, he 

snuck out of his parents’ home around midnight and met up 

with three friends: Brandon, Brian, and Jay. Jay said “let’s go 

get some money,” and the four boys drove Brandon’s car to 

the Mobil gas station. At the station, Jay took out an automatic handgun, cocked it, and went inside. Anderson heard 

a “loud shot.” Jay then returned to the car and said “I did it,” 

and the boys drove off. Later that night, Brian told Anderson 

that if he told anyone what had happened, Brian would 

shoot him.
14 Nos. 13-3076 & 13-3777

The prosecution moved in limine to bar this testimony “as 

not being relevant, not relating to this case and being too 

remote and uncertain and speculative.” The trial court conducted a sidebar and heard argument from both sides. The 

prosecutor presented a November 1990 written statement to 

police from Anderson that the incident occurred in August 

1988, not October 1988 when Hoch was murdered. The prosecutor also questioned Anderson’s competency to testify, observing that Anderson was only eleven years old at the time 

of trial and that he had initially disclosed the story about the 

gas station murder to a psychiatrist when he was hospitalized for mental health issues.

The trial court asked defense counsel whether the November 1990 written statement was the expected testimony 

from Anderson. Defense counsel clarified that Anderson, if 

permitted to testify, would say that the incident occurred in 

October 1988, not August 1988. Counsel acknowledged that 

Anderson’s written statement to police said that the incident 

occurred in August, but he argued that the inconsistency 

was simply a matter for cross-examination—not a reason to 

bar the testimony altogether.

The trial court granted the State’s motion and barred Anderson from testifying: “The Court finds, on the matter of 

relevancy, the testimony here would be too remote, too 

speculative.” It also discussed Anderson’s competency and 

the desire to avoid trying collateral issues during the trial: 

“The circumstances, taking into account a competency situation, both on a mental status and the age of the witness and 

the remoteness of the same, reference to time of the incident, 

such that the court would grant the State’s motion to bar.” 

Although the trial court discussed Anderson’s competency 
Nos. 13-3076 & 13-3777 15

and whether it would inject collateral issues into the trial, it 

clarified: “The Court has not ruled on his competency.”

D. Direct Appeal (Makiel I)

Makiel appealed his conviction on three grounds: (1) the 

October 20, 1989 statement he made after his extradition 

hearing should have been suppressed, (2) the trial court 

erred in excluding Tim Anderson’s testimony, and (3) the 

prosecution made improper remarks during closing arguments. In a split decision, the state appellate court denied 

relief on Makiel’s claims regarding his pretrial statement and 

the prosecutor’s closing arguments, but it unanimously held 

that the trial court erred in barring Anderson from testifying. 

People v. Makiel, 635 N.E.2d 941 (Ill. App. 1994) (“Makiel I”). 

The court identified two errors with the trial court’s 

handling of Anderson’s testimony. First, in determining that 

the testimony was “not relevant,” the trial court improperly 

relied on the State’s impeachment evidence (the November 

1990 written statement to police) and confused relevance 

with credibility: “The circuit court, by relying on the factors 

it cited, essentially determined that Anderson’s proffered 

testimony was not sufficiently credible.” Id. at 954. Since 

credibility determinations go to the weight of the testimony, 

not its admissibility, “the circuit court may have erred by 

keeping relevant evidence from the jury based on the court’s 

impression of its credibility.” Id.

Second, although the trial court said that it did not determine competency, the appellate court noted that concerns 

about Anderson’s competency might have improperly influenced the trial court’s decision. The appellate court held that 

the trial court erred by not examining Anderson to see if he 
16 Nos. 13-3076 & 13-3777

was in fact competent to testify. Id. Accordingly, the appellate court remanded the case to the trial court with the following instructions:

We find that the circuit court here erred by failing to 

interview Anderson as a preliminary step to determine his competence and the relevance of his testimony. We therefore remand this case for such an inquiry. If both his competency and the relevance of 

his testimony are established, the circuit court is to 

grant defendant’s motion for a new trial. If for some 

reason Anderson is unavailable, or unwilling, to 

participate in the inquiry, or if the circuit court finds 

him incompetent or his evidence irrelevant, we retain jurisdiction in this matter.

Id.

Justice McCormick concurred in part and dissented in 

part. Id. at 956–61. He agreed with the majority that the case 

had to be remanded to determine Anderson’s competency to 

testify, but he disagreed with the majority that the trial court 

needed to address the relevance of Anderson’s testimony on 

remand. Justice McCormick believed the majority had already decided that Anderson’s proffered testimony was relevant, so a remand on this issue was unnecessary. Id. at 958. 

He also disagreed with the majority’s treatment of Makiel’s other two claims and would have granted a new trial. 

Id. at 956, 961. Justice McCormick analyzed the evidence 

against Makiel in great detail, concluding that the evidence 

was “far from overwhelming” and that the State’s case 

“hinged largely on the credibility of Hlinko’s testimony at 

trial, which was inconsistent with all of his many pretrial 
Nos. 13-3076 & 13-3777 17

statements, some of which he made under oath.” Id. at 958. 

The dissent emphasized that Hlinko’s plea agreement “gave 

him a strong reason to lie,” that all of the physical evidence 

that allegedly corroborated Hlinko’s trial testimony was 

found before Hlinko accepted the plea deal, and that the allegedly corroborating testimony from Shane Miller and Allen Martin contradicted Hlinko’s testimony in several respects. Id. at 959–60. Justice McCormick concluded: 

“Hlinko’s testimony ... is sufficient to support the conviction 

if the jury chose to believe it, but the evidence is closely balanced.” Id. at 961. The Supreme Court of Illinois denied 

leave to appeal in October 1994.

E. Evidentiary Hearing and Appeal After Remand (Makiel II)

The evidentiary hearing took place in December 1996 before a different trial judge. Tim Anderson and his mother 

testified. The parties also entered stipulations regarding the 

testimony of police officers who investigated Anderson’s

statement at the time of his hospitalization in 1990.

Anderson recanted his earlier story implicating “Jay” in 

the gas station murder. He testified that in October 1988, the 

month the crime occurred, he was nine years old and that at 

the time of the murder, he did not know Jay or the other 

boys mentioned in his story. He did not meet them until 

1990—approximately two years after Hoch was murdered.

He explained that he had fabricated the entire story to retaliate against the boys for bullying him.

After the hearing, the trial court stated its findings about 

Anderson’s competency and the relevance of his testimony. 

On the issue of competency, the court found that Anderson 

was “intellectually challenged” at the time of Makiel’s trial, 
18 Nos. 13-3076 & 13-3777

but that it did not have sufficient information to determine 

his competency to testify at the time of trial. It did find, 

however, that Anderson “was competent to testify at the December 30, 1996 hearing.”

On the issue of relevance, the court found that Anderson 

first told the story about Jay and the gas station murder to a 

psychiatrist or counselor in October 1990 while he was a 

psychiatric patient at a hospital. The court also found that 

Anderson told the same story to police the following month 

and then again to Makiel’s attorney sometime before his trial 

in February 1991. The court found that Anderson recanted 

the story for the first time four years later, in February 1995. 

The trial court concluded:

Further, based upon his not telling the story until 

two (2) years after the event, that his story is totally 

[uncorroborated], his propensity to lie at an early 

age, his motive to fabricate, the fact that no one ever 

believed his story and his subsequent recantation of 

his story of the October 19, 1988 events involving 

his friend, I find that his testimony would be remote 

and speculative and, therefore, would not be relevant.

Supp. App. 26.

Makiel appealed, arguing that the trial court erred by determining that Anderson’s testimony was irrelevant, and that 

in any event the principles of Chambers v. Mississippi, 410 U.S. 

284 (1973), required its admission. The state appellate court 

affirmed. People v. Makiel, No. 1-97-2140, slip op. (Ill. App. 

June 8, 1998) (“Makiel II”). Apparently focusing on the relevance of Anderson’s hearing testimony rather than his prof-
Nos. 13-3076 & 13-3777 19

fered testimony at Makiel’s trial, the appellate court held that 

Anderson’s “testimony” would have been irrelevant because 

it had been fabricated and therefore was not “material to establishing [Makiel’s] guilt.” Supp. App. 29.

The court then addressed the Chambers argument, referring to the excluded evidence as Anderson’s “prior statements.” The court held that these “prior statements” constituted “inadmissible hearsay” and could be excluded under 

Chambers because they lacked insufficient indicia of reliability. Supp. App. 30–31. Citing Chambers, the court explained 

that “[w]hen judging the admissibility of [Anderson’s] declaration, it must be determined whether the declaration was 

made under circumstances that provide ‘considerable assurance’ of its reliability by objective indicia of trustworthiness.” 

Id. at 31. It then concluded that Anderson’s “prior statements” did not satisfy these criteria. Id. The Supreme Court 

of Illinois again denied leave to appeal in October 1998.

F. State Post-Conviction Proceedings (Makiel III)

While still awaiting the evidentiary hearing on Tim Anderson’s excluded testimony, Makiel filed a motion for postconviction relief in June 1995 under 725 Ill. Comp. Stat. 

5/122-1 et seq. Makiel argued that his appellate counsel was 

constitutionally ineffective because she did not argue in his 

direct appeal that the trial court erred by excluding (1) Allen 

Martin’s pending forgery charge and (2) Brian Spodach’s testimony about the reputations of Martin and Shane Miller. 

Makiel’s petition was initially stayed pending completion of 

his direct appeal and eventually denied without an evidentiary hearing.
20 Nos. 13-3076 & 13-3777

The state appellate court unanimously reversed, holding 

that Makiel had made a substantial showing of a deprivation 

of his Sixth Amendment right to effective assistance of counsel. People v. Makiel, 830 N.E.2d 731 (Ill. App. 2005) (“Makiel 

III”). On both of Makiel’s claims of ineffective assistance of 

appellate counsel, the court ordered an evidentiary hearing 

because his petition raised “unanswered questions of fact as 

to the strategy which motivated appellate counsel” not to 

challenge the trial court’s evidentiary rulings. Id. at 745, 748. 

The court noted, however, that it was not taking a position 

on whether Makiel could ultimately prove his claims. Id. at 

749.

G. Evidentiary Hearing and Appeal After Remand (Makiel 

IV)

The evidentiary hearing was held on March 14 and 

April 4, 2008. Makiel presented the testimony of the assistant 

public defender who represented him in his original appeal. 

She testified that she could not explain why she did not challenge either of the trial court’s evidentiary rulings. She also 

testified that she did not remember “specifically considering 

and rejecting” the two issues. The lawyer explained, however, that she reviewed the trial record and Makiel’s post-trial 

motion, consulted with her supervisor about which issues to 

raise, and discussed her strategy with Makiel during the appeal. At the conclusion of the hearing, the trial court denied 

Makiel’s petition.

Makiel appealed again, and this time the state appellate 

court affirmed. People v. Makiel, No. 1-08-0921, 2011 WL 

9548460, at *1 (Ill. App. Sept. 28, 2011) (“Makiel IV”). The appellate court held that the trial court had erred when it 

barred evidence of Martin’s pending forgery charge, but that 
Nos. 13-3076 & 13-3777 21

appellate counsel was not constitutionally ineffective for failing to raise the issue because she “reasonably could have determined” that such a challenge “would not have been a 

meritorious issue on appeal.” Id. at *14. The court also held 

that Makiel had not established prejudice from appellate 

counsel’s failure to raise the issue. Id.

On Makiel’s claim for failure to appeal the exclusion of 

Spodach’s testimony about reputation, the state appellate 

court relied on a purported state-law rule that Makiel failed 

to satisfy the burden of proof applicable to third-stage postconviction proceedings because he relied exclusively on his 

initial proffer and failed to present additional evidence to 

support his claim. Id. (As explained below, the State concedes on appeal that state law imposed no such requirement 

on Makiel.) The court also concluded that Makiel had failed 

to establish prejudice from appellate counsel’s failure to raise 

this issue. Id. at *15. Once more, the Supreme Court of Illinois denied leave to appeal in January 2012.

H. Federal Habeas Petition

In December 2012, Makiel filed a petition for a writ of 

habeas corpus in federal district court raising claims about 

the prosecutor’s remarks during closing arguments, the trial 

court’s exclusion of Tim Anderson’s testimony, and appellate 

counsel’s failure to challenge the trial court’s evidentiary rulings on Martin’s pending forgery charge and Spodach’s reputation testimony. The district court denied the petition 

without an evidentiary hearing and granted a certificate of 

appealability limited to the claim about the prosecutor’s remarks. United States ex rel. Makiel v. Atchison, No. 12 CV 9644, 

2013 WL 4538583, at *19 (N.D. Ill. Aug. 27, 2013). We granted 

Makiel’s motion to expand the certificate of appealability to 
22 Nos. 13-3076 & 13-3777

include his other claims. On appeal, Makiel has abandoned 

the claim about closing arguments and raises only the claims 

about appellate counsel’s failure to challenge the evidentiary 

rulings and the trial court’s exclusion of Anderson’s testimony.

II. Habeas Corpus Review Under 28 U.S.C. § 2254

We have jurisdiction under 28 U.S.C. § 2253(a), and we 

review de novo the district court’s denial of habeas corpus relief. E.g., Harris v. Thompson, 698 F.3d 609, 622 (7th Cir. 2012). 

Federal courts have authority to issue writs of habeas corpus 

for persons in state custody under § 2254, as amended by the 

Antiterrorism and Effective Death Penalty Act of 1996 

(AEDPA). Under AEDPA, a federal habeas petition may be 

granted only if a state court’s ruling on a federal constitutional question “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 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).

The standard under AEDPA is “difficult to meet” and 

“highly deferential.” Cullen v. Pinholster, 563 U.S. —, 131 S. 

Ct. 1388, 1398 (2011). Federal courts must avoid “using federal habeas corpus review as a vehicle to second-guess the 

reasonable decisions of state courts.” Parker v. Matthews, 567 

U.S. —, 132 S. Ct. 2148, 2149 (2012) (per curiam), quoting Renico v. Lett, 559 U.S. 766, 779 (2010). A petitioner cannot prevail by showing simply that the state court’s decision was 

wrong. E.g., White v. Woodall, 572 U.S. —, 134 S. Ct. 1697, 

1702 (2014). A petitioner “must show that the state court’s 

ruling on the claim being presented in federal court was so 
Nos. 13-3076 & 13-3777 23

lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 

562 U.S. 86, 103 (2011). Our review under § 2254(d) is limited 

to the record that was before the state court. Pinholster, 131 S. 

Ct. at 1398.

AEDPA’s deferential standard of review applies only to 

claims that were actually “adjudicated on the merits in State 

court proceedings.” 28 U.S.C. § 2254(d). Where state courts 

did not reach a federal constitutional issue, § 2254(d) deference applies “only to those issues the state court explicitly 

addressed.” Quintana v. Chandler, 723 F.3d 849, 853 (7th Cir. 

2013), citing Wiggins v. Smith, 539 U.S. 510, 534 (2003). The 

operative decision under review is that of the last state court 

to address a given claim on the merits. See Greene v. Fisher, 

565 U.S. —, 132 S. Ct. 38, 45 (2011).

III. Ineffective Assistance of Counsel

The Sixth Amendment provides that “the accused shall 

enjoy the right to ... have the Assistance of Counsel for his 

defence.” To demonstrate that his right to counsel was violated by ineffective assistance, Makiel must satisfy the familiar two-prong test set forth in Strickland v. Washington, 466 

U.S. 668 (1984). First, he must show that his counsel’s performance was deficient because it “fell below an objective 

standard of reasonableness.” Id. at 687–88. Second, he must 

show that the deficient performance prejudiced the defense, 

which means that “there is a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
24 Nos. 13-3076 & 13-3777

A. Standard of Review

Under AEDPA, “the bar for establishing that a state 

court’s application of the Strickland standard was ‘unreasonable’ is a high one.” Allen v. Chandler, 555 F.3d 596, 600 (7th 

Cir. 2009). “When § 2254(d) applies, the question is not 

whether counsel’s actions were reasonable. The question is 

whether there is any reasonable statement that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. at 

105. 

B. Performance

To establish deficient performance under Strickland, Makiel must identify acts or omissions by counsel that fell below an objective standard of reasonableness and could not 

have been the result of professional judgment. Strickland, 466 

U.S. at 688, 690. “The question is whether an attorney’s representation amounted to incompetence under ‘prevailing 

professional norms,’ not whether it deviated from best practices or most common custom.” Harrington, 562 U.S. at 105, 

quoting Strickland, 466 U.S. at 690. “The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690. To 

avoid the distorting effects of hindsight, “counsel is strongly 

presumed to have rendered adequate assistance and made 

all significant decisions in the exercise of reasonable professional judgment.” Id.

1. Ineffective Assistance of Appellate Counsel

The general Strickland standard governs claims of ineffective assistance of appellate counsel as well as trial counsel, 

Smith v. Robbins, 528 U.S. 259, 285 (2000), but with a special 
Nos. 13-3076 & 13-3777 25

gloss when the challenge is aimed at the selection of issues 

to present on appeal. Appellate counsel is not required to 

present every non-frivolous claim on behalf of her client. 

E.g., Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996). “This 

process of ‘winnowing out weaker arguments on appeal and 

focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate 

advocacy.” Smith v. Murray, 477 U.S. 527, 536 (1986), quoting 

Jones v. Barnes, 463 U.S. 745, 751–52 (1983). In fact, when appellate judges address professional education programs on 

appellate practice, they almost always stress this need for 

careful selection of just a few issues on appeal. “Lawyers 

must curtail the number of issues they present, not only because briefs are limited in length but also because the more 

issues a brief presents the less attention each receives, and 

thin presentation may submerge or forfeit a point.” Knox v. 

United States, 400 F.3d 519, 521 (7th Cir. 2005).

Because appellate counsel is not required to raise every 

non-frivolous issue on appeal, appellate counsel’s performance is deficient under Strickland only if she fails to argue 

an issue that is both “obvious” and “clearly stronger” than 

the issues actually raised. E.g., Brown v. Finnan, 598 F.3d 416, 

425 (7th Cir. 2010); Lee v. Davis, 328 F.3d 896, 900–01 (7th Cir. 

2003). Proving that an unraised claim is clearly stronger than 

a claim that was raised is generally difficult “because the 

comparative strength of two claims is usually debatable.” 

Shaw v. Wilson, 721 F.3d 908, 915 (7th Cir. 2013) (reversing 

denial of habeas relief in unusually clear case of ineffective 

assistance in selecting appellate issues). 
26 Nos. 13-3076 & 13-3777

2. Appellate Counsel’s Process for Selecting the Issues

In this case, evidence shows that Makiel’s appellate counsel approached the selection process diligently. At the evidentiary hearing, which occurred a full sixteen years after 

the direct appeal, the lawyer explained what she remembered about her process for selecting the issues. She admitted that she could not explain why she did not appeal the 

trial court’s evidentiary rulings about Martin’s pending forgery charge and Spodach’s reputation testimony. She also 

testified that she could not remember “specifically considering and rejecting” these issues. She explained, however, that 

she reviewed the trial record, including the documents in the 

record, transcripts of the relevant proceedings, and Makiel’s 

post-trial motion, which raised no fewer than 54 different

issues. She also testified that she made notes of the issues she 

could possibly raise, discussed the case and the potential issues with her supervisor at the appellate defender’s office, 

and discussed the appeal with Makiel by letter and over the 

phone during the appeal. She also filed a petition for leave to 

appeal with the Supreme Court of Illinois after losing on two 

of the three issues she raised.

3. The Issues Actually Raised on Direct Appeal

Makiel’s appellate counsel chose to present three relatively strong issues on direct appeal: (1) whether the trial court 

erred by failing to suppress Makiel’s pretrial statement, 

which was given after Miranda warnings and after he had 

been represented by counsel in the extradition proceeding; 

(2) whether the prosecutor’s closing arguments were improper; and (3) whether the trial court improperly excluded 
Nos. 13-3076 & 13-3777 27

Anderson’s testimony. Counsel prevailed on the issue of Anderson’s testimony. On the suppression issue, the panel majority noted that no case was “directly on point” and struggled to reconcile several cases pointing in opposite directions. See Makiel I, 635 N.E.2d at 952. On the closingargument issue, Makiel’s counsel did not simply present a 

bare-bones criticism of the prosecutor’s closing argument. 

She criticized several types of comments by the prosecutor, 

all of which had some force: comments about facts not in evidence, comments about defense counsel’s failure to call alibi 

witnesses, and comments that arguably shifted the burden of 

proof to the defense. See id. at 955–56. One justice on the 

panel dissented on both of these issues. See id. at 957, 961 

(McCormick, J., concurring in part and dissenting in part). 

4. Allen Martin’s Pending Forgery Charge

Having described counsel’s process for selecting the issues to raise and the issues she actually raised, we now turn 

to counsel’s failure to appeal the trial court’s exclusion of Allen Martin’s pending forgery charge. Makiel argues that this 

issue was obvious and clearly stronger than the suppression 

issue and the issue about the prosecutor’s closing arguments. 

The pending charge was, according to Makiel, critical impeachment evidence because it would have caught Martin in 

a blatant lie, shown that he had an incentive to seek favor 

with the government, and revealed that he had been accused 

officially of deception. 

The state court held that the trial court erred when it excluded this evidence at trial. Makiel IV, 2011 WL 9548460, at 

*13. Nevertheless, it concluded that appellate counsel was 

not deficient in failing to appeal this error because she “reasonably could have determined” that it “would not have 
28 Nos. 13-3076 & 13-3777

been a meritorious issue on appeal.” Id. at *14. This was a 

merits adjudication, so we apply AEDPA deference and ask 

“whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562 U.S. 

at 105.

The state court’s decision that appellate counsel’s performance was not deficient for failing to appeal the forgery issue was a reasonable application of Strickland. Although we 

agree with Makiel that this issue was an obvious issue to appeal, we disagree that it was so clearly stronger than the issues actually raised that the state court was required to find 

ineffective assistance of counsel under Strickland. On the record before the state court, it was reasonable to conclude that 

appellate counsel reasonably decided not to raise this issue 

because she predicted that the error might well be deemed 

harmless. Even if appellate counsel’s prediction might have 

been incorrect (which we do not decide), there is at least a 

reasonable argument that counsel satisfied the deferential 

Strickland standard, which means that we may not disturb 

the state court conviction on this ground under AEDPA.

A split decision under the circumstances, although not 

dispositive, supports our conclusion that it was not unreasonable for the state court to conclude that the issue was not 

clearly stronger than the issues raised. This is not a case like 

Shaw v. Wilson, for example, where the single claim actually 

raised was so weak that pursuing it “was the equivalent of 

filing no brief at all.” 721 F.3d 908, 915 (7th Cir. 2013). In 

Shaw appellate counsel failed to raise the promising issue 

that an Indiana statute, which limited the time for amending 

charging documents, barred the State from belatedly amending the charge from aggravated battery to murder. Id. at 916. 
Nos. 13-3076 & 13-3777 29

Instead, appellate counsel filed a brief challenging only the 

sufficiency of the evidence but inexplicably conceded on appeal that the evidence could support either conviction or acquittal. In light of that concession, we said, the only argument raised was “dead on arrival.” Id. at 915. Here, by contrast, the three issues appellate counsel raised were much 

stronger. She drew a remand on one and a dissent on the 

other two.

No rule limited Makiel’s counsel to just the three issues 

on appeal. We assume she could have raised the Martin forgery issue in addition to those she actually raised. Nevertheless, given the emphasis in appellate practice on not raising 

too many different issues and thus not diluting or burying 

an appellant’s strongest points, we see no unreasonable application of the Strickland standard by the state courts. See 

Howard v. Gramley, 225 F.3d 784, 791 (7th Cir. 2000) (selection 

of proper issues is one of most important parts of appellate 

advocacy, and too many issues can distract appellate judges 

from stronger issues; appellate counsel who raised only one 

relatively weak issue was deficient but performance did not 

prejudice defendant). In fact, the evidence of effective assistance in the selection of issues is substantial here, particularly when we recall the results with the issues actually raised.

Makiel counters with reasons appellate counsel should 

have doubted the merits of two of the arguments she raised 

on appeal. First, he argues that because the case law was unsettled on the suppression issue, it was necessarily weaker 

because the trial court’s error in excluding the pending forgery charge was clearly established under settled law. Second, he argues that the closing-argument issue was clearly 

weaker because attorneys are given wide latitude in closing 
30 Nos. 13-3076 & 13-3777

arguments and the standard of review is deferential to the 

trial court. Neither point persuades us that the state court 

was required to find deficient performance under Strickland.

Makiel’s position fails to account for the possibility that 

appellate counsel declined to raise the forgery issue because 

she predicted that the panel would deem the error harmless. 

Identifying a harmless error does not yield success on appeal. Appellate counsel’s ultimate goal in selecting issues is 

to “maximize the likelihood of success.” Smith, 528 U.S. at 

288. Counsel must persuade the appellate court first that the 

trial court erred and then that the error was harmful. Accordingly, even if there is no doubt that a trial court made an 

error, appellate counsel can decline to raise an issue when 

she reasonably believes the error would be deemed harmless. See Howard, 225 F.3d at 790–91 (harmless-error doctrine

and the standard of review are appropriate factors for appellate counsel to consider when selecting issues).

Here, applying the AEDPA standard under 28 U.S.C. 

§ 2254(d)(1), it was not unreasonable for the state court to 

conclude that appellate counsel could have reasonably predicted that the trial court’s exclusion of the pending forgery 

charge would likely be deemed harmless. Under Illinois law, 

this error would have been reviewed for harmless error under Chapman v. California, 386 U.S. 18 (1967). See People v. 

Young, 538 N.E.2d 461, 469–70 (Ill. 1989), citing Delaware v. 

Van Arsdall, 475 U.S. 673, 684 (1986) (improper denial of defendant’s opportunity to impeach a witness for bias is subject 

to harmless-error analysis). The harmless-error standard 

asks whether the State can “prove beyond a reasonable 

doubt that the error complained of did not contribute to the 

verdict.” Chapman, 386 U.S. at 24. The excluded impeach-
Nos. 13-3076 & 13-3777 31

ment evidence affected only Martin’s credibility. The state 

court reasonably determined that appellate counsel reasonably could have predicted that the issue would not likely 

have led to reversal because the evidence did not directly 

undermine Hlinko’s testimony. Hlinko’s testimony—not 

Martin’s—was the linchpin of the prosecution’s case, and it 

was corroborated by other evidence at trial.2

To be clear, we do not doubt the impeachment value of 

Martin’s pending forgery. Although Martin had been impeached by other means, the pending forgery charge would 

have caught him in a blatant lie (he had flatly denied the 

charge on the stand), shown that he had an incentive to seek 

favor with the government, and revealed that he had been 

accused officially of deception. As the State correctly conceded in oral argument, this excluded impeachment evidence was not cumulative because it was different in kind 

from the other impeachment evidence offered at trial. See 

United States v. Wilson, 481 F.3d 475, 480–81 (7th Cir. 2007) 

(impeachment evidence not cumulative when it represents 

2 Recall that Hlinko testified that he, Ilich, and Makiel were at the gas 

station in the distinctive blue Cutlass on the night of the murder. Makiel’s pre-indictment statement to police that he was at the gas station 

that evening corroborated this aspect of Hlinko’s testimony. John Miller 

testified that he had loaned the Cutlass to Makiel, and that he noticed 

from the condition of the car the day after the murder that it had been 

driven the previous night. This, too, corroborated Hlinko’s testimony. 

Hlinko also testified that Makiel disposed of the victim’s purse in an alley near Ilich’s house, which was corroborated by testimony from a sanitation worker who found the purse in an alley matching Hlinko’s description.

 
32 Nos. 13-3076 & 13-3777

“a new and potentially powerful line of inquiry”); Redmond 

v. Kingston, 240 F.3d 590, 591–92 (7th Cir. 2001) (same).

Nevertheless, it was not unreasonable for the state court 

to decide that appellate counsel could have reasonably predicted that the damage it could have done to Martin’s credibility would not have extended to Hlinko and that, as a result, the appellate court might well find that its exclusion 

would not satisfy the Chapman standard. Cf. People v. Rosario, 

536 N.E.2d 756, 760 (Ill. App. 1989) (“The improper limitation of cross-examination does not warrant reversal where 

there is no showing of manifest prejudice to defendant, and 

where the prosecution’s case does not stand or fall based upon the credibility of that witness.”); see generally Van Arsdall, 

475 U.S. at 684 (applying Chapman standard to improper limit on cross-examination of prosecution witness calls for analysis of “a host of factors”); United States v. Petitjean, 883 F.2d 

1341, 1348 (7th Cir. 1989) (finding limit on impeachment of 

government witness was harmless).

Makiel disagrees, pointing out that Martin corroborated 

one aspect of Hlinko’s testimony that no other evidence corroborated: the precise time of the murder. Consistent with 

the State’s theory of when the murder happened, Hlinko testified that Makiel shot the victim inside the gas station at 

approximately 11:00 p.m. Martin testified similarly, but, according to Makiel, no other evidence corroborated that timeline.

The problem is that the specific timing of the murder was 

not essential to the State’s case against Makiel. Suppose for 

the sake of argument that the jury would have discredited 

Martin’s testimony entirely if defense counsel had been allowed to introduce the pending forgery charge. That would 
Nos. 13-3076 & 13-3777 33

not necessarily mean that the jury would have discredited 

Hlinko’s testimony, especially in light of the other corroborating evidence. At best, Hlinko’s testimony about the timing 

of the murder might have gone uncorroborated. But even if 

the jury rejected the State’s theory of the specific timing of 

the murder, that alone would not necessarily establish reasonable doubt as to Makiel’s guilt. As a result, the state court 

did not apply Strickland unreasonably in finding that appellate counsel’s decision not to pursue the forgery issue did not 

fall outside the wide range of professionally competent assistance.

But suppose that appellate counsel miscalculated and the 

panel would have found the exclusion of the pending forgery charge harmful under Chapman. Makiel still has not 

shown that the state court’s application of Strickland was unreasonable. A miscalculation constitutes deficient performance only where the miscalculation was objectively unreasonable. “Strickland does not guarantee perfect representation, only a reasonably competent attorney.” Harrington, 562 

U.S. at 110 (citations and internal quotation marks omitted). 

There is “no expectation that competent counsel will be a 

flawless strategist or tactician,” and an attorney is not incompetent simply because of a “reasonable miscalculation.” 

Id. The decision whether to raise the forgery issue was a 

judgment call that required an assessment of a long trial record and a host of issues, several of which could have been 

part of a competent appeal. Under the circumstances, we 

cannot say that appellate counsel’s selection of the issues so 

clearly fell outside the wide range of professionally competent assistance that the state court was required to find deficient performance.
34 Nos. 13-3076 & 13-3777

We recognize that even “an isolated error” can support 

an ineffective assistance of counsel claim if it is “sufficiently 

egregious and prejudicial.” Murray v. Carrier, 477 U.S. 478, 

496 (1986). But “it is difficult to establish ineffective assistance when counsel’s overall performance indicates active 

and capable advocacy.” Harrington, 562 U.S. at 111. Here, 

there is strong circumstantial evidence that appellate counsel 

performed her job capably. She reviewed the record, consulted with her supervisor about which issues to raise, and discussed her strategy with Makiel during the appeal. True, she 

also testified that she did not remember considering the specific issue of the trial court’s exclusion of the pending forgery 

charge and could not explain why she failed to raise it. That 

is not surprising when the evidentiary hearing took place 

sixteen years after the appeal, and Makiel’s post-trial motion 

in the district court raised 54 different issues, all of which 

appellate counsel had to sift through and evaluate. 

If there were evidence in the record indicating that counsel was neglectful or that she otherwise failed to comply 

with prevailing professional norms of appellate representation, our conclusion might be different. On this record, in 

light of appellate counsel’s relative success on appeal and 

her hearing testimony that she prepared diligently, the state 

courts could reasonably conclude that Makiel had failed to 

rebut the Strickland presumption of adequate assistance. See, 

e.g., Yarborough v. Gentry, 540 U.S. 1, 8–9 (2003) (per curiam) 

(state court decision not unreasonable under AEDPA where 

counsel omitted certain issues from closing argument but 

petitioner failed to rebut the presumption of adequate assistance).
Nos. 13-3076 & 13-3777 35

In sum, the state court did not unreasonably apply Strickland in evaluating appellate counsel’s failure to appeal the 

exclusion of Martin’s pending forgery charge. This issue, although obvious, was not so clearly stronger than the issues 

raised on appeal that the state court was required to find deficient performance under Strickland. In addition, there is 

strong circumstantial evidence that appellate counsel performed her job capably. Even if the state court did not reach 

the correct result under Strickland, it at least reached a reasonable one, which is sufficient under § 2254(d) to require 

denial of relief on this basis.

5. Brian Spodach’s Reputation Testimony

Appellate counsel also did not raise the exclusion of Brian Spodach’s testimony about the reputations of Allen Martin and Shane Miller. Before we resolve the merits, we first 

address a threshold issue about the standard of review for 

this issue. The parties dispute whether we should consider 

Makiel IV or the state trial court’s decision reviewed in Makiel 

IV as the last state court decision on the merits of this claim. 

Makiel tells us to look at Makiel IV, which is the state appellate court’s decision after the evidentiary hearing in which 

appellate counsel testified. The appellate court held that appellate counsel’s failure to challenge the trial court’s exclusion of Spodach’s reputation testimony was not prejudicial, 

but it did not decide the issue of performance. The State, on 

the other hand, argues that we should look instead to the 

state trial court’s decision at the evidentiary hearing. At the 

conclusion of the evidentiary hearing, the state trial court 

held that appellate counsel’s failure was not deficient performance, but it did not address the issue of prejudice. The 

State argues that we should “look through” Makiel IV and 
36 Nos. 13-3076 & 13-3777

consider the state trial court’s decision instead because Makiel IV incorrectly relied on an invalid or non-existent state 

procedural rule. Cf. Ylst v. Nunnemaker, 501 U.S. 797, 806 

(1991) (describing situation where federal court will “look 

through” unexplained decisions to consider earlier reasoned 

decision).3

Because we conclude that Makiel is not entitled to relief 

on his claim even if we consider Makiel IV the last state court 

decision on the merits, we do not need to resolve this question. Accordingly, we assume, without deciding, that Makiel 

IV is the relevant “adjudication on the merits” within the 

meaning of § 2254(d). Makiel IV addressed only the issue of 

prejudice, so we review the issue of performance de novo. See 

Quintana v. Chandler, 723 F.3d 849, 853 (7th Cir. 2013), citing 

Wiggins v. Smith, 539 U.S. 510, 534 (2003).

Now to the merits. Assuming that de novo review applies, 

we conclude that appellate counsel’s failure to challenge the 

exclusion of Brian Spodach’s reputation testimony was not 

deficient under Strickland. Our conclusion follows from the 

principles discussed above.

3 At the hearing, the only evidence Makiel presented on his claim 

that appellate counsel unreasonably failed to challenge the trial court’s 

exclusion of Brian Spodach’s reputation testimony was a stipulation that 

Spodach would have testified at trial that Allen Martin and Shane Miller 

had reputations in their community for untruthfulness. In Makiel IV, the 

court held that this offer of proof was not itself “evidence,” so Makiel 

failed to establish prejudice because he failed to present additional evidence in support of his initial proffer. Makiel IV, 2011 WL 9548460, at *14. 

The State concedes that Illinois law imposed no such requirement on 

Makiel.

 
Nos. 13-3076 & 13-3777 37

We agree with Makiel that the trial court’s exclusion of 

Spodach’s reputation testimony was an obvious error under 

Illinois law. According to Makiel’s proffer at trial, Spodach

would have testified that Martin and Shane Miller had reputations in the community as liars. See Makiel III, 830 N.E.2d 

at 746–47 (summarizing Makiel’s proffer at trial). Under Illinois law, defense counsel should have been permitted to introduce this testimony as impeachment evidence. See id. at 

747, citing Rosario, 536 N.E.2d at 760 (“Any witness may be 

impeached by evidence showing generally a poor reputation 

for truth and veracity.”), and People v. Nash, 222 N.E.2d 473, 

475 (Ill. 1967) (same).

Although the trial court’s error was obvious, this issue 

was not clearly stronger than the issues raised; indeed, it was 

significantly weaker than even the trial court’s exclusion of 

Martin’s pending forgery charge. Like the trial court’s exclusion of Martin’s pending forgery charge, the exclusion of 

Spodach’s reputation testimony would have been reviewed 

for harmless error under Chapman. See People v. Bascomb, 392 

N.E.2d 1130, 1133 (Ill. App. 1979) (applying Chapman harmless-error doctrine to exclusion of reputation evidence). Appellate counsel could have reasonably determined that the 

trial court’s exclusion of this reputation evidence would likely be deemed harmless. Two factors would have supported 

this conclusion.

First, both Martin and Shane Miller were impeached by 

other means, making the marginal value of this additional 

impeachment evidence less important than it would have 

been otherwise. Martin had already been impeached by evidence that he had been drinking on the night of the murder 

and that he denied who he was when first approached by a 
38 Nos. 13-3076 & 13-3777

defense attorney. Shane Miller was impeached by other 

means as well. Defense counsel introduced Spodach’s testimony that he had not picked Miller up from Makiel’s house 

on the night of the murder, contrary to Miller’s testimony. 

Defense counsel also drew attention to Miller’s silence in the 

five months following the murder and to Miller’s pretrial 

statement, which he signed for Hlinko’s mother, indicating 

that his statements to police inculpating Hlinko and Makiel 

were untrue. Although reputation evidence from Spodach 

would not have been strictly cumulative, its relative importance was diminished by the fact that the jury already 

had reason to doubt the credibility of Martin and Shane Miller. And evidence of this sort is generally weak evidence of 

credibility anyway. Cf. Michelson v. United States, 335 U.S. 

469, 480 (1948) (“Growth of urban conditions, where one 

may never know or hear the name of his next-door neighbor, 

have tended to limit the use of [this form of evidence] and to 

deprive [it] of weight with juries.”); United States v. Burke, 

781 F.2d 1234, 1239 (7th Cir. 1985) (noting limits of character 

evidence).

Second, Spodach’s reputation testimony, if credited by 

the jury, would have tended to undermine only Martin’s and 

Shane Miller’s credibility, but it would not have directly undermined Hlinko’s credibility. As explained above, the crux 

of the State’s case was Hlinko’s testimony, which was corroborated by other evidence. The jury could have completely 

rejected Martin’s and Shane Miller’s testimony but still found 

Makiel guilty beyond a reasonable doubt based on the other 

evidence presented at trial.

Under these circumstances, we find that appellate counsel could reasonably conclude there was too great a risk the 
Nos. 13-3076 & 13-3777 39

state appellate court would find the exclusion of this impeachment evidence harmless. Cf. People v. Lavas, 446 N.E.2d 

1188, 1193 (Ill. App. 1983) (noting that testimony about a 

prosecution witness’s “general reputation for veracity would 

not significantly alter the jury’s impression of his testimony”). This issue was not clearly stronger than the issues 

raised on appeal.

Finally, as we consider this issue, we also keep in mind 

the evidence of counsel’s process for selecting issues for the 

appeal, including reviewing the record, reviewing Makiel’s 

post-trial list of 54 issues, and conferring with a supervisor 

and with Makiel himself. We are also conscious of the challenge of reconstructing her thought process more specifically 

sixteen years after the fact. Appellate counsel’s performance 

did not fall outside the wide range of professionally competent assistance permitted by Strickland.

IV. Compulsory Process

We turn finally to Makiel’s claim that the exclusion of 

Tim Anderson’s testimony violated his right to compulsory 

process under the Sixth and Fourteenth Amendments. Before resolving the merits of Makiel’s claim, we address an 

issue about the standard of review and then examine the 

significance of the state court’s reasoning.

A. Adjudication on the Merits

The parties agree that Makiel II is the last reasoned decision on this claim. They disagree, however, about whether 

the court should review the decision de novo or through 

AEDPA’s deferential lens. Makiel argues that de novo review 

is appropriate because Makiel II relied primarily on state-law 

evidence rules regarding relevance and hearsay. According 
40 Nos. 13-3076 & 13-3777

to Makiel, the state court’s failure to “consider any federal 

constitutional precedent” means that Makiel II did not adjudicate the merits of the federal claim and is therefore not 

owed deference under § 2254(d). We disagree.

Deference under § 2254(d) does not require the state 

court to have expressly considered federal law, much less to 

have cited Supreme Court precedent. Harrington v. Richter, 

562 U.S. 86, 98 (2011); Early v. Packer, 537 U.S. 3, 8 (2002) (per 

curiam). Moreover, the state court opinion shows that the 

court adjudicated Makiel’s federal claim on the merits. The 

court cited Chambers v. Mississippi, 410 U.S. 284 (1973), and 

held that the exclusion of Anderson’s testimony did not violate Chambers because the testimony was not sufficiently reliable.

This is not a case like Harris v. Thompson, where the state 

court’s reasoned explanation relied exclusively on state evidence law and “did not hint at any federal (or state) constitutional ground of decision.” 698 F.3d 609, 624 (7th Cir. 2012) 

(applying de novo review to petitioner’s compulsory process 

claim). Here, the state court explicitly considered and rejected the federal claim while discussing and applying a relevant Supreme Court precedent. It did not rely exclusively on 

state evidence law.

B. The Significance of the State Court’s Reasoning

Makiel II decided Makiel’s claim on the merits, but aspects of the state court’s reasoning are troubling. In particular, the court characterized Anderson’s proffered testimony 

as “hearsay” and concluded under Chambers that the exclusion of this “hearsay” was constitutionally acceptable because his “extrajudicial declaration” about the circumstances 
Nos. 13-3076 & 13-3777 41

of the murder did not bear sufficient indicia of reliability. See 

Supp. App. 30–31. The fundamental problem with this analysis is that the lion’s share of Anderson’s proffered trial testimony would not have been hearsay.

Anderson was available at trial and prepared to testify 

that on the night of the murder, he drove to the gas station 

with his friends Jay, Brandon, and Brian; saw Jay go inside 

the gas station with a gun; heard a loud shot; observed Jay 

return to the car; and then heard Jay confess to shooting 

someone. The only aspect of this proffered testimony that 

was actually hearsay was Jay’s supposed statement that he 

“did it.” That confession, made by a third-party declarant, 

was an out-of-court statement that would have been offered 

to prove the truth of the matter asserted. Had the trial court 

excluded only that aspect of Anderson’s testimony, Chambers

would have fit as the appropriate framework for deciding 

whether Makiel’s compulsory process right was violated. See 

Chambers, 410 U.S. at 300–01 (addressing third-party hearsay 

confessions).4

4

We doubt that Anderson’s testimony that Jay said he “did it” could 

qualify for admission under Chambers or the Illinois hearsay exception

for statements against penal interest. See People v. Bowel, 488 N.E.2d 995, 

999 (Ill. 1986) (“Generally an extrajudicial declaration not under oath, by 

the declarant, that he, and not the defendant on trial, committed the 

crime is inadmissible as hearsay though the declaration is against the 

declarant’s penal interest.”). A statement of this sort satisfies the exception only when “the declaration was made under circumstances that 

provide ‘considerable assurance’ of its reliability by objective indicia of 

trustworthiness.” Id. at 1000, citing Chambers, 410 U.S. at 300–01, and People v. Tate, 429 N.E.2d 470 (Ill. 1981); see also Fed. R. Evid. 804(b)(3)(B) 

(hearsay exception for statement against interest in a criminal case where 

 
42 Nos. 13-3076 & 13-3777

But the remainder of Anderson’s proffered testimony was 

first-hand recollection of events he claimed he had personally observed, none of which involved an out-of-court statement. Mischaracterizing the entirety of Anderson’s testimony as “inadmissible hearsay” does not justify the conclusion 

that Makiel’s right to compulsory process was not violated. 

See Washington v. Texas, 388 U.S. 14, 23 (1967) (petitioner denied compulsory process where “the State arbitrarily denied 

him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had 

personally observed”).5

One aspect of the state court’s reasoning, however, is not 

subject to this criticism. Independent of the court’s conclusion that Anderson’s “prior statements” were “inadmissible 

hearsay,” the court also concluded that there was no error 

because “there is no indication Anderson’s testimony would 

affect any fact which was material to establishing defendant’s guilt.” Supp. App. 29. The court based this conclusion 

on its review of the entire record, including the 1996 hearing 

the statement is “supported by corroborating circumstances that clearly 

indicate its trustworthiness”).

5

The cases cited by the State are distinguishable on precisely this basis. See Ruhl v. Hardy, 743 F.3d 1083, 1099–1100 (7th Cir. 2014) (no constitutional error where defendant was denied opportunity to present testimony from witness that unavailable third-party declarant had confessed 

to crime); Cunningham v. Peters, 941 F.2d 535, 538–41 (7th Cir. 1991) (no 

constitutional error where defendant was denied opportunity to present 

testimony from defense investigator that unavailable third-party declarant had confessed to crime).

 
Nos. 13-3076 & 13-3777 43

where Anderson methodically and completely recanted his 

proffered trial testimony.

Ultimately, then, the state court’s flawed reasoning on 

hearsay does not matter for our review under § 2254(d). The 

court’s materiality determination did not rely on the court’s 

mischaracterization of the testimony as hearsay. And, even if 

it did, “a bad reason does not necessarily mean that the ultimate result was an unreasonable application of established 

doctrine.” Brady v. Pfister, 711 F.3d 818, 827 (7th Cir. 2013); 

see also Lopez v. Thurmer, 573 F.3d 484, 493 (7th Cir. 2009) 

(noting that although the state court “applied the wrong 

methodology in deciding the federal due process issue before it, it is not the court’s methodology but its result that we 

review”).6 We therefore apply AEDPA deference to the state 

court’s decision and ask whether the state court committed 

an error “beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

C. Constitutional Standard

The Sixth Amendment guarantees the accused the right 

“to have compulsory process for obtaining witnesses in his 

favor.” This clause, together with the Due Process Clause of 

the Fourteenth Amendment, “embodies a substantive right 

to present a meaningful and complete criminal defense.” 

6

See also Williams v. Roper, 695 F.3d 825, 831 (8th Cir. 2012) (proper 

inquiry under § 2254(d) is to examine “the ultimate legal conclusion 

reached by the court,” not “merely the statement of reasons explaining 

the state court’s decision”); Gill v. Mecusker, 633 F.3d 1272, 1291 (11th Cir. 

2011) (same); Clements v. Clarke, 592 F.3d 45, 55–56 (1st Cir. 2010) (“It is 

the result to which we owe deference, not the opinion expounding it.”).

 
44 Nos. 13-3076 & 13-3777

Harris v. Thompson, 698 F.3d 609, 626 (7th Cir. 2012). “The 

right to offer the testimony of witnesses, and to compel their 

attendance, ... is in plain terms the right to present a defense, the right to present the defendant’s version of the facts 

as well as the prosecution’s to the jury so it may decide 

where the truth lies.” Washington v. Texas, 388 U.S. 14, 19 

(1967). This right is an “essential attribute of the adversary 

system itself,” Taylor v. Illinois, 484 U.S. 400, 408 (1988), and 

“imperative to the function of courts,” which “depend on 

full disclosure of all the facts, within the framework of the 

rules of evidence.” United States v. Nixon, 418 U.S. 683, 709 

(1974).

In spite of its importance, this right is not unlimited. As a 

general rule, the defendant “must comply with established 

rules of procedure and evidence designed to assure both 

fairness and reliability.” Chambers v. Mississippi, 410 U.S. 284, 

302 (1973). Although the defendant’s interest in presenting 

testimony of witnesses in his favor is fundamental, it must 

“bow to accommodate other legitimate interests in the criminal trial process,” Rock v. Arkansas, 483 U.S. 44, 55 (1987), 

such as the “integrity of the adversary process, which depends both on the presentation of reliable evidence and the 

rejection of unreliable evidence, the interest in the fair and 

efficient administration of justice, and the potential prejudice 

to the truth-determining function of the trial process,” Taylor, 

484 U.S. at 414–15. The Compulsory Process Clause thus 

does not require criminal courts to admit evidence that is irrelevant, Crane v. Kentucky, 476 U.S. 683, 689–90 (1986), testimony by persons who are mentally infirm, see Washington, 

388 U.S. at 23 n.21, or evidence that represents a half-truth, 

see United States v. Nobles, 422 U.S. 225, 241 (1975).
Nos. 13-3076 & 13-3777 45

To establish that his right to compulsory process was violated by the exclusion of Anderson’s testimony, Makiel must 

show that (1) the testimony would have been “both material 

and favorable” to his defense, United States v. ValenzuelaBernal, 458 U.S. 858, 867 (1982), and (2) the exclusion was 

“arbitrary” or “disproportionate” to the evidentiary purposes advanced by the exclusion, United States v. Scheffer, 523 

U.S. 303, 308 (1998), quoting Rock, 483 U.S. at 56; see Harris, 

698 F.3d at 627. To win federal habeas relief, he must show 

that the state court’s decision was not merely wrong but unreasonably so, beyond the scope of reasonable disagreement 

among fair-minded judges.

D. Application

The state court’s decision that Makiel was not denied his 

right to compulsory process was not an unreasonable application of clearly established federal law. On the record before the state court, which included Anderson’s 1996 hearing 

testimony as well as the state trial court’s factual findings 

from that hearing, it was not unreasonable for the state court 

to conclude that Anderson’s testimony was not material.

The materiality standard of the Compulsory Process 

Clause analysis is identical to the materiality requirement of 

Brady v. Maryland, 373 U.S. 83 (1963). Harris v. Thompson, 698 

F.3d 609, 627 (7th Cir. 2012), discussing Valenzuela-Bernal, 458 

U.S. 858. “Under this standard, the exclusion of a witness is 

material ‘only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of 

fact.’” Id., quoting Valenzuela-Bernal, 458 U.S. at 874.

Anderson’s proffered testimony would have satisfied this 

materiality standard at the time of the trial. That is why Ma-
46 Nos. 13-3076 & 13-3777

kiel’s original appeal resulted in a remand for an evidentiary 

hearing. Anderson was prepared to testify that on the night 

of the murder he drove to the gas station with three young 

friends, saw Jay leave the car and walk into the gas station 

with a gun, heard a loud noise, and saw Jay return to the car. 

Although the evidence against Makiel was sufficient to sustain the conviction, we cannot say based on our review of 

the trial record that the evidence was overwhelming. Cf. Makiel I, 635 N.E.2d at 958, 961 (McCormick, J., concurring in 

part and dissenting in part) (analyzing trial record in great 

detail and concluding that evidence was “far from overwhelming” and “closely balanced”). Because the evidence of 

guilt was not overwhelming and Anderson was prepared to 

testify that another person committed the murder, there is a 

reasonable likelihood that the exclusion of Anderson’s proffered testimony affected the outcome.

But Makiel’s claim presents an unusual situation. Anderson recanted this proffer under oath at the 1996 hearing. He 

testified at the hearing that he fabricated the story to retaliate 

against three boys who had been bullying him. He explained 

that he first told this story to a counselor or psychiatrist 

while he was a psychiatric patient at a hospital, sometime in 

October 1990—two years after the murder. He also explained 

that he did not even know Jay at the time of the murder in 

1988. At the conclusion of the evidentiary hearing, the state 

court found as a matter of fact that police had investigated 

his story in 1990 and could not corroborate it. On appeal 

from the trial court’s decision at the evidentiary hearing, the 

state appellate court held that in light of Anderson’s recantation and the lack of corroboration for the original proffered 

trial testimony, Makiel had failed to demonstrate that the evidence was material to the verdict.
Nos. 13-3076 & 13-3777 47

Makiel argues that the state court unreasonably applied 

clearly established federal law when it rejected his compulsory process claim on the basis of the 1996 hearing. He contends that the state court should have ignored Anderson’s 

recantation and instead focused exclusively on the materiality of the initial proffer. If Anderson had been permitted to 

testify at trial, Makiel maintains, he would have stuck to his 

original story and a reasonable jury could have credited his 

account and found reasonable doubt. According to Makiel, 

Anderson’s recantation merely presents a disputed question 

of fact that a jury must decide at a new trial. We disagree.

The question presented by these unusual facts is whether 

the state court unreasonably applied clearly established federal law when it measured materiality in light of the entire 

record rather than looking only at the trial record. In other 

words, when a court determines whether the excluded testimony is material, is it free to consider post-trial developments that bear directly on the reliability of the testimony, or 

must it confine its review to the record at the time the trial 

court excluded the evidence?

We think the weight of Supreme Court authority points 

in the direction that a court is permitted to review the entire 

record—not just the record at trial—when measuring materiality in the context of a compulsory process claim. But because our review under § 2254(d) is deferential and asks only whether the state court unreasonably applied clearly established federal law, we do not ultimately decide that question. Instead, we hold only that because no Supreme Court 

decisions clearly establish that a court considering materiality is barred from considering post-trial developments that 

bear directly on the reliability of the excluded testimony, 
48 Nos. 13-3076 & 13-3777

Makiel has failed to satisfy § 2254(d). See White v. Woodall, 

572 U.S. —, 134 S. Ct. 1697, 1706 (2014) (“Section 2254(d)(1) 

provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require 

state courts to extend that precedent or license federal courts 

to treat the failure to do so as error.”).

Our conclusion is based on the nature of the constitutional right at issue. In United States v. Agurs, 427 U.S. 97 

(1976), the Supreme Court elaborated on the meaning of materiality. The Court explained that the “mere possibility that 

an item of undisclosed information might have helped the 

defense, or might have affected the outcome of the trial, does 

not establish ‘materiality’ in the constitutional sense.” Id. at 

109–10. Instead, materiality in the constitutional sense is tied 

to the “overriding concern with the justice of the finding of 

guilt.” Id. at 112. Accordingly, evidence is material only if the 

evidence “creates a reasonable doubt that did not otherwise 

exist.” Id.

To this end, Agurs instructed courts to evaluate the omission of the evidence “in the context of the entire record.” Id.

Agurs said this in a case where there had been no significant 

post-trial developments bearing on the reliability of the 

omitted evidence. It is possible, then, that the Court meant 

“the entire trial record but nothing beyond that” when it said 

“entire record.” But this possibility does not clearly establish 

that a court should never consider post-trial developments 

that bear directly on the reliability of the excluded evidence 

in measuring materiality.

To the contrary, the purpose of the Compulsory Process 

Clause supports the idea that a court can, at least under 

some circumstances, consider the entire record when evalu-
Nos. 13-3076 & 13-3777 49

ating materiality. A defendant’s right to present witnesses in 

his favor is not absolute. Courts must balance the defendant’s interest in presenting evidence against “countervailing 

public interests,” including the integrity of the adversary 

process, the interest in the fair and efficient administration of 

justice, and the potential prejudice to the truth-determining 

function of the trial process. Taylor, 484 U.S. at 414–15; see 

also Nobles, 422 U.S. at 241 (“The Sixth Amendment does not 

confer the right to present testimony free from the legitimate 

demands of the adversarial system; one cannot invoke the 

Sixth Amendment as a justification for presenting what 

might have been a half-truth.”).

Consider for a moment the extraordinary scenario that 

Makiel contends would be mandated by the federal Constitution. He says the state or federal courts should have vacated his conviction and ordered a new trial so that he could 

call Anderson to testify about the story he told back in 1990, 

which is (1) uncorroborated by any other evidence, (2) disavowed by Anderson himself as a troubled boy’s misguided 

effort to get back at other boys who had bullied him, and (3) 

implausible on its face. Even if Anderson’s original statements might somehow have been squeezed into evidence 

after the recantation, a new trial for that purpose would have 

been a strange farce, at least if the truth is supposed to remain important in a criminal trial. See Nix v. Whiteside, 475 

U.S. 157, 175–76 (1986) (no prejudice under Strickland where 

counsel refused to present perjured testimony, even though 

jury might have believed the perjury and acquitted); see also 

Lockhart v. Fretwell, 506 U.S. 364, 371–72 (1993) (rejecting petitioner’s argument that prejudice under Strickland should be 

evaluated under the laws existing at the time of trial and 

concluding that prejudice “focuses on the question whether 
50 Nos. 13-3076 & 13-3777

counsel’s deficient performance renders the result of the trial 

unreliable or the proceeding fundamentally unfair”).7

All three “countervailing public interests” identified by 

the Court in Taylor tend to support the state court’s decision 

to consider the entire record in this case. The state court 

quite reasonably found Anderson’s recantation credible and 

his initial proffered trial testimony not credible. The first 

time he told the story implicating Jay, it was two years after 

the crime and he was an eleven-year-old psychiatric patient. 

Police investigated the story before Makiel’s trial and found 

no corroborating evidence. At the hearing, Anderson explained that he did not even know Jay at the time of the 

murder and that he made the story up to retaliate against the 

three boys for bullying him. Under the circumstances, the 

state court could have reasonably determined that (1) Anderson’s omitted testimony was unreliable, (2) a new trial 

would be pointless because no rational jury would find reasonable doubt based on Anderson’s improbable and nowrecanted story, and (3) admitting this evidence at a new trial 

would prejudice the truth-determining function of the trial 

process. See Taylor, 484 U.S. at 414–15.

At bottom, the constitutional right Makiel invokes is “designed to vindicate the principle that the ‘ends of criminal 

justice would be defeated if judgments were to be founded 

on a partial or speculative presentation of the facts.’” Id. at 

7 These two cases involved Strickland claims, not compulsory process 

claims. But the prejudice component of a Strickland claim is identical to 

the materiality requirement of the Compulsory Process Clause analysis. 

Harris v. Thompson, 698 F.3d 609, 627–28 (7th Cir. 2012).

 
Nos. 13-3076 & 13-3777 51

411, quoting United States v. Nixon, 418 U.S. 683, 709 (1974). 

That principle applies here, where Makiel asks us to overturn a state court conviction based on a partial presentation 

of the facts. Given the unusual circumstances of this case and 

the absence of controlling Supreme Court precedent, we 

cannot say the state court’s decision on Tim Anderson’s proffered testimony was an unreasonable application of clearly 

established law.

We AFFIRM the district court’s denial of Makiel’s petition 

for a writ of habeas corpus.