In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1404

WILLIAM RILEY SUTHERLAND, III,

Petitioner-Appellant,

v.

DONALD GAETZ, WARDEN,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 3469—Samuel Der-Yeghiayan, Judge.

ARGUED MAY 15, 2009—DECIDED SEPTEMBER 14, 2009

Before EASTERBROOK, Chief Judge, and BAUER and

FLAUM, Circuit Judges.

BAUER, Circuit Judge. William Riley Sutherland, III

was tried before a jury in an Illinois state court on

charges of attempted first-degree murder, aggravated

battery with a firearm and home invasion. On the

third day of trial, Sutherland’s defense counsel was held

in contempt and jailed overnight. Defense counsel

returned to court the next morning and represented
2 No. 08-1404

Sutherland through the conclusion of trial, at which time

a jury found Sutherland guilty of all charges. In his

direct appeal and again throughout post-conviction

proceedings, Sutherland claimed that he was denied the

assistance of counsel because the jailing of his attorney

prevented the preparation of his defense. After those

challenges were unsuccessful, Sutherland sought a writ

of habeas corpus in federal court under 28 U.S.C. § 2254.

The district court denied his petition, a decision

which Sutherland now appeals and we affirm.

I. BACKGROUND

On the third day of Sutherland’s five-day jury trial,

defense counsel thrice violated a court order barring him

from eliciting testimony regarding exculpatory statements Sutherland made to police. After the third violation, the court called an evening recess and ordered

counsel jailed overnight.

The next morning, the trial resumed; defense counsel

presented its entire case, including Sutherland’s testimony. On the fifth and final day of trial, the State called

one rebuttal witness, and the parties presented closing

arguments. At the conclusion of trial, Sutherland was

convicted of two counts each of attempted first-degree

murder, aggravated battery with a firearm and home

invasion.

Sutherland first objected to his counsel’s overnight

incarceration in a motion for mistrial filed approximately

one month after his conviction. In a supporting affidavit,
No. 08-1404 3

Defense counsel’s obstinate behavior and the court’s ex- 1

asperation with it may be reminiscent for some of the contentious interplay between the fictional characters of Vincent

LaGuardia Gambini and Judge Chamberlain Haller in the film

“My Cousin Vinnie.” On three separate occasions during

trial, Judge Haller held Vinnie in contempt and, each time,

made him spend the overnight recess in jail. However, unlike

defense counsel here, Vinnie, a New York lawyer struggling

to adapt to the rural-Alabama trial setting, found that the

accommodations in jail offered the best night’s sleep he could

find away from the Big Apple. Upon his return to the courtroom, a revitalized Vinnie dismantled the credibility of the

State’s circumstantial case and cleared the names of the “two

yutes” he represented. (And again we see that life follows art).

defense counsel described his experience at the Cook

County Jail. Counsel alleged that Sutherland was unable

to communicate with him during his incarceration.

Further, defense counsel stated that he was able to sleep

for only three hours during the overnight recess and, as

a result, returned to court the next day sleep-deprived

and devoid of the mental clarity to adequately present

Sutherland’s case. According to counsel, he lacked the

“presence of mind” to request either a mistrial or continuance when the trial resumed the following day. The

trial court denied the motion.1

On direct appeal, Sutherland raised numerous challenges, including a claim that his counsel’s overnight

incarceration amounted to a constructive denial of

his Sixth Amendment right to counsel. In affirming his

conviction, the Illinois Appellate Court noted that Suther-
4 No. 08-1404

land did not contend that defense counsel asked to

confer with Sutherland during his night of incarceration,

that Sutherland requested to see his counsel that night,

or that such a request was denied by jail authorities.

People v. Sutherland, 743 N.E. 2d 1007, 1015 (Ill. App. Ct.

2000). Therefore, the court reasoned, Sutherland could not

prove that he was denied his right to the assistance of

counsel. Id.

Thereafter, Sutherland filed a pro se petition for postconviction relief in the state trial court in which he

again argued that his counsel’s incarceration violated

his Sixth Amendment rights. This time, Sutherland presented a supporting affidavit in which he alleged for

the first time that jail personnel denied his request to

meet with counsel during the overnight recess. In dismissing the petition, the trial court found that, because

the claim was the same constructive-denial-of-counsel

claim that Sutherland had raised on direct appeal, it was

barred by res judicata. Sutherland then brought a § 2254

petition in federal district court. Finding that the Illinois

Appellate Court had properly rejected Sutherland’s

constructive denial of counsel claim, the district court

denied the petition for a writ of habeas corpus. Sutherland sought a certificate of appealability, which we

granted.

II. DISCUSSION

Sutherland contends that he was denied his Sixth

Amendment right to assistance of counsel when he

was not allowed to confer with his counsel during an
No. 08-1404 5

overnight recess the night before his case-in-chief was to

be presented. Sutherland claims that the contempt order

entered against his attorney and, later, the refusal by

Cook County Jail officials to allow Sutherland and his

attorney to communicate when they were being held in

the same facility, combined to result in the denial.

We review de novo the district court’s denial of a habeas

petition. Ben-Yisrayl v. Buss, 540 F.3d 542, 546 (7th Cir.

2008). Under the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), we may grant habeas relief

only if the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court

of the United States” or “was based on an unreasonable

determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S.

362, 376 (2000). A state-court decision is “contrary to”

federal law, within the meaning of the federal habeas

statute, if the state court either incorrectly laid out governing United States Supreme Court precedent, or,

having identified the correct rule of law, decided a case

differently than a materially factually indistinguishable

Supreme Court case. 28 U.S.C.A. § 2254(d)(1); Calloway v.

Montgomery, 512 F.3d 940, 943 (7th Cir. 2008). An “unreasonable application” of United States Supreme Court

precedent occurs, within the meaning of the federal

habeas statute, when a state court identifies the correct

governing legal rule but unreasonably applies it to the

facts of a case or if the state court either unreasonably

extends a legal principle from the Supreme Court’s precedent to a new context in which it should not apply or
6 No. 08-1404

unreasonably refuses to extend that principle to a new

context in which it should apply. 28 U.S.C.A. § 2254(d)(1);

Muth v. Frank, 412 F.3d 808, 814 (7th Cir. 2005).

This standard only applies, however, to a “claim that

was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). In this case, the post-conviction

trial court applied res judicata to Sutherland’s denial-ofassistance-of-counsel claim. Because a judgment of

res judicata is not an adjudication on the merits, see

Conner v. McBride, 375 F.3d 643, 649 (7th Cir. 2004), the

state court decision that is subject to our review is the

judgment of the Illinois Appellate Court. In rejecting

Sutherland’s claim, that court applied the Supreme

Court’s decision in Geders v. United States, 425 U.S. 80

(1976). In Geders, the Court held that “an order

preventing petitioner from consulting his counsel ‘about

anything’ during a 17-hour overnight recess between

his direct-and cross-examination impinged upon his

right to the assistance of counsel guaranteed by the

Sixth Amendment.” Id. at 91. Distinguishing from Geders,

the Illinois Appellate Court found that in Sutherland’s

case, neither defense counsel nor Sutherland was sequestered by a court order, nor did the trial court order the

attorney and Sutherland not to speak to each other.

Sutherland, 743 N.E. 2d at 1007.

Moreover, the court reasoned, Sutherland did not

show that the trial court’s overnight incarceration of

his counsel for contempt prevented him from conferring

with his attorney during that period or that he desired

to do so. Id. The court noted that Sutherland was
No. 08-1404 7

obligated to prove that he was actually denied his right

to consult with his attorney. Id. (citing People v. Stewart,

514 N.E. 2d 51, 54 (Ill. App. Ct. 1987)) (defendant’s placement in isolation cell during overnight recesses of his

trial did not deprive him of assistance of counsel absence

evidence that defendant attempted or was prevented

from contacting counsel by jail authorities).

Sutherland argues that, by declining to find that the

overnight jailing of his attorney amounted to a Geders-like

constructive denial of counsel, the Illinois Appellate

Court unreasonably applied Supreme Court precedent.

We disagree. Granting Sutherland’s petition would

require us to conclude that Geders applies even in circumstances where a petitioner has not demonstrated

that he attempted to communicate with counsel during a

recess. The court order in Geders, entered over counsel’s

objection, expressly prohibited the petitioner from consulting with his attorney during a 17-hour overnight

recess. The Court took caution to note that it refused to

reach limitations imposed in other circumstances.

The Illinois Appellate Court concluded that Sutherland’s

circumstances were distinct because he could only speculate on the limitations to his capacity to confer with

his counsel. The material facts in this case were distinguishable from those in Geders, and the court reached a

different conclusion. See 28 U.S.C.A. § 2254(d)(1). In light

of the evidence it had before it, the state appellate court

properly refused to extend Geders from a scenario

where the denial of the right to consult counsel was

actual to one where it was merely speculative.
8 No. 08-1404

We mention the state court’s determination vis-à-vis

the record because Sutherland later attempted to supplement it. In his post-conviction petition before the Illinois

trial court, Sutherland submitted an affidavit in which

he alleged for the first time that jail personnel denied his

request to meet with counsel during the overnight recess.

The state trial court refused to consider the affidavit and,

finding that Sutherland was merely raising the same

claim that he had raised on direct appeal, applied

res judicata. In reaching our determination concerning

whether the Illinois Appellate Court’s decision contradicted Supreme Court law, the allegations made by

Sutherland in his affidavit are not part of our consideration. Because to determine whether a state court’s decision was unreasonable, it must be assessed in light of the

record the court had before it. See Holland v. Jackson, 542

U.S. 649, 652 (2004). While defense counsel’s affidavit

was before the Illinois Appellate Court, Sutherland’s

affidavit was not.

Sutherland also argues that the post-conviction trial

court should have considered his affidavit and re-adjudicated his constructive-denial-of-counsel claim fully on

the merits. Had the trial court opted to do so, instead of

invoking res judicata, its decision would be the focus of

our analysis here. See McBride, 375 F.3d at 649. As it is, the

Illinois Appellate Court remains the last state court to

adjudicate the claim on the merits and our analysis does

not change.

Sutherland may appear a victim of procedural barriers;

he is not. Under the habeas statute, Sutherland’s affidavit
No. 08-1404 9

could have been the subject of a evidentiary hearing by

the district court if he had shown that he was not at fault

in failing to develop the evidence in state court or, if he

was at fault, that he could meet the conditions prescribed

in § 2254(e)(2). See Jackson, 542 U.S. at 652-53. However,

Sutherland did not argue before the district court that

either of these conditions had been demonstrated nor

did the district court make such a finding. Sutherland

has advanced no reason why his affidavit should

receive consideration.

Even assuming Sutherland’s affidavit was part of our

consideration here, we would reach the same conclusion. That is because, even if Sutherland and his counsel

were prevented from conferring with each other during

the overnight recess, nothing prevented Sutherland’s

counsel from requesting the preparation time they were

denied when trial resumed the next day. That morning,

Sutherland’s counsel could have moved for a continuance in light of the circumstances that had arisen

the previous night. He did not do so. Had Sutherland

made such a motion and the court denied it, Sutherland

might have had cause to argue that his inability to

confer with counsel during the overnight recess

materially affected the preparation of his defense. As it

stands, there is no evidence before us suggesting that

Sutherland’s inability to communicate with counsel that

night had any bearing on the trial itself.

True, Sutherland’s counsel alleged in his own affidavit

that his overnight jailing left him sleep-deprived and

devoid of the mental clarity to adequately present Suther-
10 No. 08-1404

land’s case or even move for a continuance. But his claim

lacks any credibility. We cannot accept that an attorney

functioning on little rest, whether it be three hours of sleep

or no sleep at all, would lack the presence of mind even to

request a simple continuance. The trial record shows that

Sutherland’s counsel never raised the issue of sleepdeprivation with the court on the morning trial resumed;

furthermore, he cross-examined witnesses and made a

closing argument while proceeding to the trial’s conclusion. In light of his capacity to perform these functions,

it is impossible to believe counsel lacked the presence of

mind to step before the court and request additional time

to prepare the case if the overnight jailing had truly

impeded his ability to do so.

We comment in passing, however, that the problem

need not have arisen at all had the trial court postponed

the sanctions until the trial was over. That is, the court

could have simply held counsel in contempt, but postponed his confinement until the conclusion of trial. Nevertheless, Sutherland has not presented any argument

that shows the state court’s adjudication of his claim

was contrary to, or involved an unreasonable application of, Supreme Court precedent.

III. CONCLUSION

For the reasons set forth above, we AFFIRM the

district court’s denial of Sutherland’s habeas corpus

petition.

9-14-09