In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2560

JOSEPH A. STOCK,

Petitioner-Appellant,

v.

DAVE REDNOUR, Warden,

Respondent-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 06 C 448—David H. Coar, Judge.

ARGUED APRIL 5, 2010—DECIDED SEPTEMBER 3, 2010

Before EASTERBROOK, Chief Judge, and BAUER and

WOOD, Circuit Judges.

WOOD, Circuit Judge. On June 20, 1997, Connie Wagner

was found brutally murdered in her home in Palatine,

Illinois. Wagner’s wrist had been bound with a telephone cord and she had been stabbed more than 180

times. She appeared to have struggled with her assailant

or assailants. Joseph Stock, Wagner’s former boyfriend,

became the prime suspect. Three months after the
2 No. 09-2560

murder, Stock’s friend Alfonso Najera told the police

that four days after the murder Stock had confessed

to killing Wagner. Inexplicably, the police left the ostensibly violent Stock on the streets for more than

three years after learning of his purported confession,

arresting him only in February 2001. Further complicating matters, none of the physical evidence found in

Wagner’s home pointed to Stock; the clothes he wore

the day of the murder bore no traces of blood; and

Stock voluntarily went to the police station to assist

with the investigation on the day after the murder and,

at that time, showed no indications of a struggle. It was

undisputed that Wagner was involved in drugs and was

in debt to drug dealers with gang affiliations, and her

neighbors reported seeing a Hispanic man driving

slowly down her street before the murder. Still, relying

primarily on Najera’s tip, Stock was charged and convicted in 2002 of first-degree murder.

Our task is not to pass judgment on the facts surrounding the crime and the investigation. We concede

readily that some suggest Stock’s innocence, while

others seem quite consistent with his guilt. Rather, we

must decide whether this is one of the cases in which

a federal court may issue a writ of habeas corpus to

someone convicted in state court, given the standards

set forth in the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. AEDPA

tightly constrains our review. Stock argues that his right

to cross-examine the witnesses against him was unconstitutionally constrained; in particular, he believes that

the trial court’s evidentiary decisions prevented him
No. 09-2560 3

from effectively challenging Najera’s testimony. We

conclude, however, that the Illinois court reviewing

Stock’s conviction did not unreasonably apply clearly

established federal law, because the testimony he

intended to elicit was inconclusive for the purpose of

impeachment. We therefore affirm the decision of the

district court to dismiss his petition.

I

On the evening before the murder, Wagner told Stock

that she was moving to Texas. This marked the end of a

dating relationship that had lasted for several months. The

state’s theory of the case was that Stock, angry with

Wagner over the break-up, used a copy of her key to

enter the house, killed her, changed into her brother’s

clothes, and drove off in her car. The last of those steps

was supported by the fact that Stock’s fingerprints were

found in his ex-girlfriend’s car. As noted above, the

physical evidence discovered in Wagner’s home—hair,

fingerprints, and footprints—did not inculpate Stock.

Central to the state’s case was the testimony of Najera.

Najera’s testimony is also the subject of this appeal, and

so we review it in detail here. Najera testified that four

days after the murder, Stock called him and said that

he murdered Wagner because he was angry. After a

few months, Najera went to the police and relayed this

story. He signed a statement, written by a prosecutor,

outlining the conversation. He also agreed to participate

in a recorded telephone call with Stock in which he

would try to elicit another confession. The recorded
4 No. 09-2560

conversation did not go as the state had anticipated.

Stock made a number of unsolicited, exculpatory statements during the call; Najera ignored some and

affirmed others. Najera also failed to mention the confession explicitly. The closest that Najera came to confronting Stock was the following exchange:

Stock: I mean shit—you still believe me, don’t you?

Najera: Yeah, I believe you, dude. I believe you, man.

I just want to make sure that you didn’t say something to anybody else and they come to court and then.

Stock: That what?

Najera: You didn’t tell anybody else—you know

what I’m saying? Cause they come to court and

then I look like, you know.

Stock: Tell anybody what?

Najera: Anything. I mean did they subpoena anybody

else?

Stock believes that his exclamation, “Tell anybody

what?” shows that he never confessed to Najera and

thus did not know what his friend cautioned against

“tell[ing] anybody else.” Najera’s repeated failures to

challenge Stock’s denials, according to Stock, further

undermine Najera’s claim that Stock confessed to him

before the phone call.

Knowing that Najera would testify about the confession, Stock planned to use the recordings to impeach

Najera, by showing that Najera neither challenged

Stock’s exculpatory statements nor followed through on
No. 09-2560 5

his promise to obtain confirmation of Stock’s confession.

Before trial, the state filed a motion in limine to bar the

introduction of the recorded conversation as hearsay.

It argued that the out-of-court conversation was

nothing but “self-serving statements by an accused” and

thus inadmissible hearsay, citing People v. Patterson, 610

N.E.2d 16 (Ill. 1992). Stock argued that he did not intend

to use the statements to prove the truth of the matter

asserted, i.e. his innocence, but to impeach Najera by

omission. The trial court concluded that the recorded

conversations were inadmissible hearsay. At the same

time, however, the judge said that if Najera denied that

he failed to confront Stock about the confession during

the call, then the defense could question Najera about

the substance of the call, although it could not introduce

the actual recorded conversation. At the state’s request,

the trial court later clarified its ruling, permitting the

introduction of Najera’s “tell anybody else” statement

to rebut the defense’s contention that he did not raise

the issue with Stock, but still prohibiting the defense

from introducing Stock’s “Tell anybody what?” response.

In short, the court decided that the defense could confront Najera about his failure to raise the confession

during the recorded call, but in that case, the state

could introduce Najera’s allusion to the supposed confession, and the defense could not respond with Stock’s

potentially exculpatory response. At trial, the defense

cross-examined Najera extensively about a range of

issues, but stayed away from the recorded conversation.

As noted earlier, Stock was convicted of first-degree

murder. He was sentenced to 90 years’ imprisonment.
6 No. 09-2560

Stock appealed his conviction to the Illinois Court of

Appeals, raising five issues including the Confrontation

Clause claim that forms the basis of his § 2254 petition.

Stock argued that the restrictions placed on the crossexamination of Najera by the trial court violated his right

guaranteed by the Sixth and Fourteenth Amendments

to confront his accuser. The appellate court quoted Delaware v. Fensterer, 474 U.S. 15 (1985), for the proposition

that “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Id. at 20. (In this

connection, the appellate court appeared to ignore a

series of Supreme Court cases, discussed in further

detail below, holding that certain limitations on crossexamination are unconstitutional.) The court also discussed the propriety of the evidentiary decision under

Illinois law, noted the discretion given to trial courts

under state law to reach evidentiary decisions, and commented that, even if the decision was in error, any

error would have been harmless. The appellate court

affirmed Stock’s conviction and sentence, and the Illinois

Supreme Court denied his petition for leave to appeal.

Finding no remedy in the state courts, Stock turned to

the federal courts and to the writ of habeas corpus. The

United States District Court for the Northern District of

Illinois concluded that Stock satisfied the threshold

procedural requirements for the § 2254 petition, but

concluded that the merits of Stock’s claim did not clear

the high bar for relief—Stock did not establish that the

Illinois appellate court unreasonably applied clearly
No. 09-2560 7

established federal law when it rejected his Confrontation

Clause claim. On this basis, the district court denied

Stock’s petition for a writ of habeas corpus. At Stock’s

request, the district court certified his request for a certificate of appealability.

II

Our review of Stock’s petition is governed by AEDPA,

28 U.S.C. § 2254, which permits a federal court to issue a

writ of habeas corpus only if the state court reached a

decision on the merits of a claim, and that decision

was either “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United States,” id.

§ 2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented

in the State court proceeding,” id. § 2254(d)(2). Stock

brings his petition under § 2254(d)(1). Whether the state

court’s decision was contrary to or an unreasonable

application of clearly established federal law “is a

mixed question of law and fact that we traditionally

also review de novo but with a grant of deference to

any reasonable state court decision.” Jackson v. Frank, 348

F.3d 658, 662 (7th Cir. 2003) (quoting Schaff v. Snyder, 190

F.3d 513, 522 (7th Cir. 1999) (emphasis in original)). In

this case, as in all cases that come to us under AEDPA, we

emphasize that our decision expresses no independent

opinion about the correctness of the state court’s judgment.

Section 2254(d)(1) has two branches—the so-called

“contrary to” and “unreasonable application of” theories.
8 No. 09-2560

The Illinois appellate court’s decision will be “contrary

to” clearly established federal law “if the state court

arrive[d] at a conclusion opposite to that reached by [the

Supreme] Court on a question of law” or “if the state

court confront[ed] facts that [were] materially indistinguishable from a relevant Supreme Court precedent and

arrive[d] at a result opposite to [the Supreme Court].”

Williams v. Taylor, 529 U.S. 362, 405 (2000). Our review is

of the state court’s decision, not the cases it cited (or

failed to cite) along the way. See Early v. Packer, 537 U.S. 3,

8 (2002) (“[Section 2254(d)(1)] does not even require

awareness of [Supreme Court] cases, so long as neither

the reasoning nor the result of the state-court decision

contradicts them.”) (emphasis in original). In this court,

Stock argues that the Illinois appellate court’s holding

was contrary to the Supreme Court’s decisions in Delaware v. Van Arsdall, 475 U.S. 673 (1986), and Davis v.

Alaska, 415 U.S. 308 (1974). Stock did not present this

argument to the district court, however, and so it is not

properly before us. Even if he had, we believe that

Stock’s case is better understood as an assertion that the

state court unreasonably applied the applicable law; the

facts of Stock’s case are distinguishable from the

Supreme Court precedents, but they do call to mind the

central holdings of those cases. Stock tries valiantly to

show that the Illinois court failed to apply those

principles to his case, and it is to this argument that we

now turn.

In order for a state court’s decision to reflect an “unreasonable application” of governing Supreme Court jurisprudence, the state court must have done something
No. 09-2560 9

worse than merely “appl[ying] clearly established federal

law erroneously or incorrectly.” The application of federal

law must be “objectively unreasonable” before relief is

possible under this branch of AEDPA. See Williams, 529

U.S. at 409-10. We have observed that a state court may

act unreasonably by failing to apply established federal

law to facts that are materially indistinguishable to

those examined by the Supreme Court. See Williams v.

Bartow, 481 F.3d 492, 498 (7th Cir. 2007). Even in this

instance, AEDPA tightly constrains the availability of

the writ, particularly where a state court has engaged in

a careful inquiry into the relevant question—here,

whether the right of confrontation was infringed.

Compare Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996)

(en banc), rev’d, 521 U.S. 320 (1997) (finding no violation of

the Confrontation Clause under the AEDPA standards

of review), with Lindh v. Murphy, 124 F.3d 899 (7th Cir.

1997) (issuing the writ on the same facts applying the preAEDPA standards on remand).

Turning to the law that Stock asserts was applied unreasonably, we begin by recalling that the Supreme Court

has characterized the right of confrontation as “paramount.” Davis, 415 U.S. at 319. It has also warned that

“where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may

not be applied mechanistically to defeat the ends of

justice.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973).

Furthermore, the Court has made clear that the limitations on impeachment may constitute violations of the

Confrontation Clause. In Davis, the Court reversed the

decision of the trial court to enforce a protective order
10 No. 09-2560

that prevented the defense from confronting a key prosecution witness with his juvenile criminal record. And

in Chambers, the Court rejected a trial court’s application

of state evidentiary rules that precluded the defense

from examining a witness in a manner that would implicate that witness in the criminal conduct.

Stock asserts that clearly established federal law

provides that “the Confrontation Clause is violated

when a trial court unreasonably restricts or completely

prohibits a defendant from asking questions necessary

to impeach the credibility of witness testimony.” We

accept this formulation for purposes of the argument.

Indeed, we too have noted that state interests, including

those reflected in the state’s evidentiary rules, may need

to bend in order to ensure that defendants have the right

to confront the witnesses against them. See, e.g., Dunlap

v. Hepp, 436 F.3d 739, 742 (7th Cir. 2006). But it is equally

well established that the law calls for a case-specific

inquiry into a number of competing priorities. See id.

As the Supreme Court said in Van Arsdall, “[T]rial

judges retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on

such cross-examination based on concerns about, among

other things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” 475 U.S. at 679. Even

Stock’s formulation of the law acknowledges that it is

only unreasonable limits that create Confrontation Clause

problems. Before any later court can decide whether a

limitation imposed by the trial court was reasonable

or unreasonable, it must look at the potential testimony

and the bases for exclusion.
No. 09-2560 11

The trial court in Stock’s case was aware of the fine

lines that it was asked to draw. The court endeavored to

balance Stock’s ability to challenge Najera’s testimony

against the basic evidentiary principle that selfserving, out-of-court statements are inadmissible for

the purpose of exculpating the declarant. See, e.g.,

United States v. Haddad, 10 F.3d 1252, 1258 (7th Cir.

1993) (“Ordinarily a defendant’s self-serving, exculpatory, out of court statements would not be admissible.”).

The trial court initially excluded Stock’s statements

as inadmissible hearsay. In response to the motion for

clarification, the defense asked the court to admit Stock’s

statement, “Tell anybody what?” for the purpose of

impeaching Najera’s claim that he confronted Stock with

the confession during the recorded phone call. Defense

counsel urged that this was a permissible use, and that

the exchange was not being offered for the truth of

the matter asserted, see FED. R. EVID. 801(c). But the

trial court worried that the jury would take this statement as Stock’s denial of his guilt, and the court

concluded that it could not countenance the prejudice

that would come along with admitting the evidence.

The Illinois appellate court affirmed this conclusion,

relying on People v. Hotsy, 497 N.E.2d 334 (Ill. App. Ct.

1986). Despite these limitations, Stock was permitted to

cross-examine Najera extensively, including on issues

of potential bias and on his failure directly to confront

Stock with his purported confession during the recorded

conversation. It may be troubling that Stock was barred

from providing the jury with the context surrounding

Najera’s statements and omissions. But it was up to
12 No. 09-2560

the trial court to draw the line, and we are not prepared

to say that its actions lacked support.

Beyond these countervailing interests, we think that

there is a more fundamental problem with Stock’s argument. The Conformation Clause permits the defendant

“to expose to the jury the facts from which jurors, as

the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the

witness.” Davis, 415 U.S. at 318. In this connection, we

are not concerned with immaterial limitations on crossexamination. See Van Arsdall, 475 U.S. at 679-80 (calling

for deference to the trial court when excluding

“marginally relevant” evidence and asking whether

the jury would have had a “significantly different impression” of the witness’s credibility had the testimony

been admitted). Once again, the only question before

us is whether the state court’s conclusion was an objectively unreasonable application of the Supreme Court’s

Confrontation Clause decisions. In specific terms, we

must ask whether the state court acted unreasonably

when it concluded that the excluded testimony was not

relevant enough.

To begin with, we note that this was impeachment

testimony. We can assume that Stock would have benefitted from being able to introduce out-of-court denials

without subjecting himself to cross-examination, but

excluding this obvious hearsay does not implicate the

Confrontation Clause. Stock tries to work around the

hearsay problem by arguing that the episode shows

that Najera was lying: Najera did not directly confront
No. 09-2560 13

Stock about the confession (as he promised the police

he would do), and Najera’s affirmations of Stock’s professions of innocence might have cast doubt in the

jury’s mind on whether Stock really did make an earlier

confession to Najera. Impeachment is certainly a proper

purpose, but the purported value of these statements

is undercut by their ambiguity. For whatever reason,

Najera and Stock spoke elliptically throughout their

conversation, exemplified by the “tell anybody else”—“Tell

anybody what?” exchange. We have re-read these statements many times, and we can find nothing in them

that establishes that the two men were talking about

a confession. Even Najera’s affirmations of Stock’s

denials—e.g., “I believe you, dude”—are inconclusive.

For all we know, Najera was playing his part in a

charade Stock was creating or affirming Stock’s cover

story (rather than the truth).

Further, bearing in mind the narrow permissible

purpose of the evidence, the trial court reasonably could

have concluded that there was little value added for

the defense in these statements. Despite Stock’s arguments to the contrary, we cannot say with any degree

of confidence that this evidence if admitted would

show that Najera was not to be trusted. The fact that

Najera did not contradict Stock (who might have really

been his friend) could mean that he was loyal, scared,

unaware, or any number of other things. And Stock would

have gained little through the use of the ambiguous

“Tell anybody what?” line, especially since the court

permitted the defense to cross-examine Najera on his

failure directly to raise the confession. Although the
14 No. 09-2560

trial court may have given the state a slight advantage

when it permitted the state to introduce the “tell

anybody else” statement without including Stock’s response, these distinctions are subtle at best. In Davis,

the Supreme Court worried about the exclusion of a

witness’s prior offense that would have explained the

police’s suspicion of his involvement, and in Chambers,

the trial court improperly excluded the testimony of

several witnesses that strongly suggested that another

witness had committed the crime and confessed to it

soon thereafter. The Najera-Stock exchange is nothing

like these examples.

Like our Lindh decisions, this is a case where the

AEDPA standards have bite. As we have emphasized

throughout, the only question before us is whether the

state appellate court’s application of clearly established

federal law lies “well outside the boundaries of permissible differences of opinion.” Hardaway v. Young, 302

F.3d 757, 762 (7th Cir. 2002). Given the vagueness of the

conversation, we answer that question in the negative—

reasonable minds could differ on whether the trial

court unconstitutionally infringed Stock’s right to confront Najera, and thus the state appellate court did not

act unreasonably in upholding Stock’s conviction.

It follows therefore that the district court was correct

to dismiss Stock’s § 2254 petition. We therefore AFFIRM

the judgment of the district court.

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