### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 2577

I VAN J OHNSON

,

Petitioner

‐ Appellant

,

v.

K AREN J AIMET

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 14 C 50172

— Frederick J. Kapala

, Judge

.

____________________

A RGUED D ECEMBER 6, 2016

— D ECIDED M ARCH 30, 2017

____________________

Before W OOD

, Chief Judge

, and R OVNER and S YKES

, Circuit

Judges

.

W OOD

, Chief Judge

. Douglas Keefer’s badly beaten body

was found by police in Keefer’s own backyard in Rock Falls,

Illinois, the morning of November 27, 2006. A jury convicted

Ivan Johnson of Keefer’s murder. While Johnson admits he

beat Keefer the night before, in the same backyard, he insists

that he did not kill him. Keefer’s actual murderers, Johnson2 No. 15

‐ 2577

says, were two men with baseball bats who attacked Keefer

later that night, in the same spot.

Johnson’s theory apparently came from Dustin Manon, a

one

‐ time occupant of the Whiteside County Jail. Manon told

police that his cellmate there, Donnie Masini, told him that

Masini had hired two men to kill Keefer with bats and that

they did so. Unsurprisingly, Masini denied making the state

‐

ment when police questioned him. The trial court barred

Johnson from introducing Masini’s hearsay statement, rea

‐ soning that it was too unreliable to allow into evidence. The

Illinois Appellate Court affirmed.

After exhausting other options, Johnson now seeks habeas

corpus relief. He argues, as relevant here, that the state court’s

exclusion of the hearsay evidence was an unreasonable appli

‐

cation of Chambers v. Mississippi

, 410 U.S. 284 (1973). The dis

‐

trict court denied Johnson’s petition, but it granted him a cer

‐

tificate of appealability. We agree with our colleague that the

state court’s decision did not run afoul of Chambers and thus

that Johnson is not entitled to habeas corpus relief.

I

At Johnson’s jury trial, the prosecution and the defense

agreed that Johnson repeatedly punched an unarmed Keefer

on the evening of Sunday, November 26, 2006. The critical dif

‐

ference between their stories lay in the degree to which John

‐

son beat the victim. Johnson argued that he could not have,

and did not, cause Keefer’s death, while the prosecution

maintained that he did. Johnson unsuccessfully sought to in

‐

troduce Manon’s report of Masini’s confession. Without that

evidence before it, the jury resolved the factual question in the

prosecution’s favor.No. 15

‐ 2577 3

Because the Antiterrorism and Effective Death Penalty Act

(AEDPA) governs this case, the findings of the state court are

entitled to substantial deference. See 28 U.S.C. § 2254(d). We

therefore begin by recounting the prosecution’s version of

events. The state argued that Johnson beat and killed Keefer

after a dispute about drugs and money. Marie Schlosser, a wit

‐

ness to the attack, testified that the two men started arguing

about money shortly after Johnson showed up at Keefer’s

house on the fateful evening. Earlier that weekend, Schlosser

and a pair of men, all from Chicago, teamed up with a man

known as “Little C” to sell drugs in the Rock Falls area, in

northwestern Illinois. Johnson and Keefer visited the dealers

in their hotel room at different times that weekend. On Sun

‐ day, Schlosser and Little C drove to Keefer’s house to sell

more drugs, but only Little C went inside. He returned to the

car where Schlosser was waiting a few minutes later, claiming

he had been robbed. He then made a phone call in which he

repeated the accusation.

But if there was a robber, it apparently was not Keefer,

who came outside soon after Little C returned to the car. Little

C demanded that Keefer tell him where the man who robbed

him lived or that Keefer cover the cost of the stolen drugs. At

this point, according to Schlosser, Johnson arrived and started

arguing with Keefer. Johnson reportedly told Keefer that “we

don’t play about our money” and then began punching

Keefer. It was a one

‐ way fight; Keefer did not hit back, as

Johnson acknowledged at trial. Instead, Schlosser recalled,

Keefer ran behind a parked car, presumably to try to evade

the beating. Johnson followed. Schlosser reported that he

knocked Keefer to the ground, striking him in the face repeat

‐ edly and kicking him at least once while he was prone. Even

‐ tually Johnson drove away, leaving Keefer on the ground.4 No. 15

‐ 2577

Schlosser too left the scene. She said that she and her friend

returned that evening to see if Keefer was still there—and “see

if he was really dead.” She saw Keefer in the same spot where

he had lain when she left the yard shortly after Johnson’s at

‐

tack, but she did not approach him.

Johnson recalled the evening differently. He testified that

Keefer was arguing with Little C at Keefer’s place Sunday

evening when Johnson arrived. Johnson said he approached

the pair and told Keefer to cool down. Keefer did not; instead,

he started arguing with Johnson, telling him that “if anybody

gonna take a whippin’ it’s gonna be” Johnson. With that,

Keefer “threw up his guards.” Johnson said this was a sign to

fight, and so Johnson did. Johnson admitted that he punched

Keefer when he was standing and continued after Keefer fell

to the ground. But Johnson acknowledged Keefer did not re

‐

turn any blows or even swing back. Johnson also admitted

that he had lied to police earlier when he said that Keefer also

threw punches and that Little C had also struck Keefer. John

‐

son explained that he told police that Keefer struck back “to

make it look good on [his own] behalf.” By Johnson’s own ad

‐

mission, then, he was the sole combatant in the fight with

Keefer. The only difference between his account and the

state’s was the brutality of the beating he administered.

One way or the other, the fight must have ended by 9 p.m.,

because Keefer’s friend, Vern Williams, arrived at Keefer’s

empty house about that time. Williams found it odd that

Keefer’s house was unlocked, yet Keefer was nowhere to be

found. Williams waited inside Keefer’s residence until about

2 a.m. Monday, at which point he wrote Keefer a note and left.

Williams never looked in the back yard.No. 15

‐ 2577 5

A Rock Falls police officer was dispatched to Keefer’s

house around 10 a.m. Monday to investigate a report of a man

lying in the back yard. There the responding officer, Jeremy

Vondra, found Keefer dead. At trial, Schlosser testified that a

police photograph of the scene where police found Keefer’s

body showed that Keefer’s body was just where Johnson had

left him the night before.

An autopsy showed that Keefer had extensive bruising on

his face and neck, along with a broken jaw and a fractured

throat bone. The forensic pathologist who conducted the au

‐

topsy said that Keefer’s injuries were consistent with being

punched in the face, falling to the ground, and being punched

while prone. He noted that most of Keefer’s bruises were

round—like those that would result from a punch—but two

bruises, along his jaw, were linear. These contusions could

have resulted from being struck with a straight object, such as

a rod, a piece of wood, or a shoe. Keefer’s cause of death was

neurogenic shock, brought on by blunt force trauma to the

head and neck. The trauma triggered a hemorrhage inside his

skull. The pathologist theorized that blows to Keefer’s head

while he was on the ground—which was so hard that his body

could not absorb the strikes—might have caused his death.

On January 18, 2007, Johnson was indicted on four counts

of first

‐ degree murder for Keefer’s death. Before the start of

trial, the prosecution moved to exclude the hearsay testimony

from Manon as inadmissible. See I LL

. R. E VID

. 802. Johnson

wanted Manon to testify about what Masini allegedly told

him about Keefer’s murder. As we noted, the defense’s theory

was that it was two men with baseball bats who actually killed

Keefer, by attacking him later Sunday evening, after Johnson

had fled the scene. This account attributed the two linear6 No. 15

‐ 2577

bruises to bats, not something like the kick to which Schlosser

had referred.

The only problem with Johnson’s theory was an utter lack

of evidence backing it up. Manon was his sole source, but all

he had was hearsay from Masini, recounted to Manon while

Manon was in jail facing obstruction of justice charges. There

Masini supposedly told him that Masini had hired two men

to “take [Keefer] out” with baseball bats and that he had “got”

Keefer. Manon added that Masini had asked him to blow up

a woman’s car and burn down her house. The targeted

woman had been the subject of a running dispute between

Keefer and Masini. Indeed, apparently that was why Masini

was in jail: Police arrested him in October 2006, after the

woman reported that Masini had shot Keefer, and investigat

‐ ing officers found a loaded gun at Masini’s home. Manon said

Masini gave him a map showing the location of the woman’s

house during this conversation.

Manon had first reported these statements from Masini to

the police around 9 a.m. Tuesday, November 28, less than

three hours after Manon had been released from jail on bond.

This was almost 24 hours after police found Keefer’s body, but

several hours before the local newspaper first published a story

about Keefer’s death that afternoon. Manon gave the police a

hand

‐ drawn map that showed the woman’s house—artwork

from Masini, he claimed. But there were “no particulars as to

when [Masini’s] statement [to Manon] was made other than it

was made within 24 hours of Doug Keefer’s death,” as the trial

court noted. The news would have traveled fast, under the

defense’s theory, because Masini needed to hear of the suc

‐

cessful attack and then share the news with Manon before

Manon was released from jail around 6:30 a.m. Tuesday.No. 15

‐ 2577 7

Johnson argued that this hearsay was admissible under

the due process exception established in Chambers v. Missis

‐ sippi

, 410 U.S. 284 (1973), for certain statements against penal

interest. Masini’s testimony, he urged, was highly reliable. The

Illinois court evaluated this argument but concluded that

“justice d[id] not require” the Masini hearsay to be admitted.

Following a jury trial in Whiteside County, Johnson was con

‐

victed of first

‐ degree murder and sentenced to 35 years in

prison.

On direct appeal, the Illinois Appellate Court affirmed the

exclusion of the evidence. Citing Chambers

, it reasoned that

the hearsay statement lacked sufficient indicia of reliability to

require it to be allowed in at trial. The court noted the absence

of any indication that Masini and Manon were more than cell

‐

mates; nothing suggested that they had a personal relation

‐ ship. Furthermore, nothing corroborated the hearsay; the two

linear bruises could have resulted from any kind of a linear

object, not just a bat. Moreover, most of Keefer’s bruises were

consistent with punches. The court also pointed to the evi

‐

dence indicating that Keefer’s body was “unmoved from

where it was located when [Johnson] left the crime scene.”

Masini’s purported motive to kill Keefer—their dispute about

a woman—was of no help because it did not relate specifically

to Masini’s purported hiring of men with baseball bats.

Further counseling against admission was the fact that

Masini would be “unavailable” for cross

‐ examination. During

the murder investigation, Masini denied making the state

‐

ments Manon attributed to him. He also disclaimed any re

‐ sponsibility for Keefer’s death. The appellate court assumed

that if Masini had been called to testify, he would have as

‐

serted his Fifth Amendment privilege or denied making the8 No. 15

‐ 2577

statement, making him “unavailable” in the evidentiary sense

of the word. This conclusion parted ways with the trial court’s

analysis. That court thought that there was ample oppor

‐ tunity to cross

‐ examine Masini, who was incarcerated again

by then. The only factor weighing in favor of admissibility, in

the Illinois Appellate Court’s view, was the fact that Masini’s

statement was against his penal interest. Overall, the court

concluded, the hearsay statement was too unreliable to be ad

‐

mitted.

After exhausting his appeals in state court, Johnson filed

his federal habeas corpus petition on August 6, 2014. See 28

U.S.C. § 2254. The district court denied the petition on July 10,

2015, but certified for appeal the question whether the Illinois

court denied Johnson his right to present a defense by exclud

‐ ing the hearsay that implicated another person.

II

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

which strictly limits the circumstances in which a federal

court may grant relief to a petitioner whose claim has been

adjudicated on the merits in state court. Johnson relies on

§ 2254(d)(1), which allows a federal habeas court to grant re

‐

lief if the state court’s decision is “contrary to, or involves an

unreasonable application, of clearly established federal law.”

He argues that the state court unreasonably applied Chambers

when it excluded Manon’s account of Masini’s admission.

A state court decision “involves an unreasonable applica

‐

tion of [the Supreme] Court’s clearly established precedents if

the state court applies this Court’s precedents to the facts in

an objectively unreasonable manner.” Williams v. Taylor

, 529

U.S. 362, 407 (2000). To succeed, Johnson must do more thanNo. 15

‐ 2577 9

show that the state court made a mistake. McManus v. Neal

,

779 F.3d 634, 649 (7th Cir. 2015). Rather, he must show that the

Illinois court’s decision was “so erroneous as to be objectively

unreasonable.” Id

. (internal quotation and citation omitted).

Under this demanding standard, a petitioner’s claim fails if

“fairminded jurists could disagree on the correctness of the

state court’s decision.” Harrington v. Richter

, 562 U.S. 86, 101

(2011) (internal citation and quotations omitted).

A

As the Illinois Appellate Court correctly observed, Cham

‐

bers provides the controlling Supreme Court precedent.

Chambers similarly concerned the exclusion of hearsay evi

‐

dence of another person’s confession to a murder. The murder

defendant in that case, Leon Chambers, had sought to intro

‐

duce evidence from third parties that another man, Gable

McDonald, had repeatedly confessed to the crime. 410 U.S. at

292–93. But the state court blocked Chambers from using the

statements at trial by application of a state evidence rule pro

‐ hibiting hearsay, despite the existence of evidence that cor

‐

roborated the out

‐ of

‐ court statements. Id

. at 298. Its eviden

‐ tiary ruling prevented the jury from considering the defense’s

strongest evidence that someone other than Chambers was re

‐ sponsible for the murder. Id

. at 292–93.

The Court held that the state court’s hearsay exclusion vi

‐

olated Chambers’s due process right to present a complete de

‐

fense. Id

. at 298–300. It did so notwithstanding the fact, which

it acknowledged, that hearsay evidence as a general matter

“lack[s] the conventional indicia of reliability.” Id

. at 298.

Rules barring hearsay are permissible because they protect

triers of fact from considering “untrustworthy infor

‐

mation.” Id

. at 298 (citing California v. Green

, 399 U.S. 149, 15810 No. 15

‐ 2577

(1970)). But when hearsay statements are made and offered

“under circumstances that provid[e] considerable assurance

of their reliability,” that justification for exclusion disappears.

See Chambers

, 410 U.S. at 300–01.

Under Chambers

, it is necessary, though not sufficient, for

critical hearsay of this type to be reliable. Rather than pre

‐ scribing a litmus test for reliability, however, Chambers in

‐

structs trial courts to determine reliability by considering all

the circumstances, including such points as whether the state

‐

ment was made by a close acquaintance; whether any evi

‐

dence corroborates the statement; whether the statement was

against the declarant’s penal interests; and whether the de

‐

clarant will be subject to adequate examination. Id

.

In the decades since Chambers

, the Supreme Court has re

‐

mained steadfast in its recognition that states have “broad lat

‐

itude under the Constitution” to restrict the admission of ev

‐

idence in criminal trials, but at the same time that there will

be cases in which the defendant’s due process rights must

override those rules. Holmes v. South Carolina

, 546 U.S. 319,

324. (2006); Rock v. Arkansas

, 483 U.S. 44, 55 (1987); see Kubsch

v. Neal

, 838 F.3d 845, 855–56 (7th Cir. 2016) ( en banc ) (explain

‐ ing that “ Chambers was not a one

‐ and

‐ done opinion” and

summarizing subsequent Supreme Court precedent). We

must decide on which side of the line Johnson’s case falls.

B

The Illinois Appellate Court was not satisfied that

Manon’s hearsay testimony had sufficient “indicia of reliabil

‐ ity.” Johnson argues, in essence, that we must take into ac

‐

count both how reliable and how essential it was. He then

turns to the latter factor and urges that the exclusion of hisNo. 15

‐ 2577 11

evidence had the effect of denying him a meaningful oppor

‐ tunity to present a complete defense. It did so by preventing

him from showing that someone else was responsible for

Keefer’s murder. See Crane v. Kentucky

, 476 U.S. 683, 690

(1986). Given the wealth of evidence against Johnson, includ

‐ ing Johnson’s admission that he beat Keefer right before he

died, his best and only hope was to suggest that someone else

was responsible. For purposes of this discussion, we will as

‐

sume that the hearsay was critical to Johnson’s defense and

focus on reliability.

We look first at the question whether Masini was available

for cross

‐ examination. The Illinois trial court said yes, but the

state appellate court disagreed. The appellate court thought

that Masini “likely

... would have either asserted his fifth

amendment right against self

‐ incrimination, or would have

continued to deny having made the statement.” That, it said,

would have made him effectively unavailable. And because

the operative decision for our review is that of the last state

court to adjudicate Johnson’s claim on the merits, we need not

concern ourselves with the trial court’s assessment. Makiel v.

Butler

, 782 F.3d 882, 896 (7th Cir. 2015).

In our court, the respondent warden concedes that the ap

‐ pellate court’s determination that Masini was “unavailable”

was incorrect; indeed, this was one of the reasons why the dis

‐

trict court granted a certificate of appealability to Johnson.

Masini could have been put on the stand “in order that his

demeanor and credibility may be assessed by the jury.” Cham

‐

bers

, 410 U.S. at 298. To the extent it matters, Masini’s where

‐

abouts apparently were known, because he told the police

that he did not make the statement Manon attributed to him,

and it appears that Masini was incarcerated at the time of12 No. 15

‐ 2577

Johnson’s trial. For present purposes, therefore, we treat this

part of the Illinois Appellate Court’s decision as erroneous.

But as we already have noted, the fact that a decision is in

error does not necessarily make it “unreasonable.” To begin

with, the finding that Masini was available was not the only

reason that the state court gave for finding the hearsay evi

‐

dence to be insufficiently reliable. Moreover, AEDPA requires

the federal court to give deference to the state court’s decision,

as opposed to its reasoning. See Harrington

, 562 U.S. at 98–99;

Makiel

, 782 F.3d at 907. A “bad reason does not necessarily

mean that the ultimate result was an unreasonable applica

‐

tion of established doctrine.” Makiel

, 782 F.3d at 906 (quoting

Bradley v. Pfister

, 711 F.3d 818, 827 (7th Cir. 2013)). We thus

move on to the other reasons offered by the state court in sup

‐

port of its finding of unreliability: the absence of evidence cor

‐ roborating the hearsay, and the superficial relationship be

‐

tween Manon and Masini.

Johnson argues that there was evidence corroborating the

hearsay, but that the state court disregarded it. He points to

the linear contusions on Keefer’s jaw; Masini’s knowledge of

Keefer’s death before it was reported in the media; and

Masini’s motive to kill Keefer as part of their alleged dispute

about the woman. The state court reasonably concluded,

however, that this evidence has little or no bearing on the

hearsay Johnson sought to introduce.

First, there is no proof of what caused the two linear con

‐

tusions. While the pathologist opined that they could have

been caused by a bat, he stressed that any linear object, includ

‐ ing a foot, would have sufficed. These injuries thus could

have resulted from a kick, such as the one witnessed byNo. 15

‐ 2577 13

Schlosser. This inconclusive physical evidence hardly pro

‐

vides “considerable assurance” of the statement’s reliability.

See Chambers

, 410 U.S. at 300. The absence of clear physical

evidence supports the state court’s determination that the

statement was not sufficiently reliable. Masini’s purported

motive to kill Keefer is also of limited significance. The contu

‐

sions have nothing to do with Masini’s supposed hiring of

two men with bats.

The fact that Manon reported Masini’s confession before

the local paper published a story on Keefer’s death is also at

best weak corroboration. Keefer’s body was found in the

backyard of a “busy thoroughfare and

... [his] home was sur

‐

rounded by crime scene tape for all of a day before Manon

talked to the police,” according to the prosecution. Schlosser

said that she and a friend returned to the crime scene some

time after Johnson’s beating and saw Keefer’s body in the

same spot. Word of Keefer’s death (no matter the means) eas

‐ ily could have traveled fast around Rock Falls, whose popu

‐

lation at the last Census did not exceed 10,000. Finally, Manon

had a few hours between his release from jail and his report

of Masini’s statement to police—time during which he could

have learned of Keefer’s death in some way other than

through Masini.

Johnson does not challenge the state court’s conclusion

that Masini and Manon were “mere cellmates,” but he argues

the state court overemphasized this fact in its reliability deter

‐

mination. The weight of that fact, however, was for the state

court to determine. Johnson also argues that, even if Masini

was a relative stranger, Chambers recognized that the sponta

‐ neity of a statement argues in favor of reliability. See 410 U.S.14 No. 15

‐ 2577

at 300. True enough. But Chambers also holds that the close

‐

ness of the relationship between declarant and witness is a

key component of the reliability assessment of a statement

against the declarant’s penal interests. See id

. at 300–01. In re

‐ ality, Johnson wants us to analyze the hearsay anew by re

‐ weighing these considerations to arrive at a different conclu

‐

sion. That is not our role under AEPDA.

We do not find the Illinois Appellate Court’s ultimate re

‐ liability determination to be an unreasonable application of

Chambers

, given the absence of corroborating evidence and

obvious untrustworthiness of a murder confession to a

stranger

‐ turned

‐ cellmate. Johnson’s case is quite different

from the one we faced in Kubsch

, where we held that due pro

‐

cess required the admission of a police interview of a witness

because it was particularly reliable and essential to the de

‐

fense. 838 F.3d at 845. The evidence at issue there was trust

‐ worthy, because it was recorded, independent, and almost

contemporaneous, and also because there was some evidence

that corroborated (and more that could have done so, if pur

‐ sued) the out

‐ of

‐ court statement. Id

. at 860–62. While the state

court in Johnson’s case might seen things differently, if for ex

‐ ample it had placed more emphasis on the fact that Masini’s

confession was against his penal interest, its decision was well

within the range of reasonable outcomes.

III

Because we hold that the state court did not unreasonably

apply Chambers

, we do not need to address whether any error

it might have made was harmless. We simply note that an

‐

other reason to leave the state conviction undisturbed is the

fact that any exclusion of the hearsay evidence probably madeNo. 15

‐ 2577 15

no difference to the outcome, given the abundance of evi

‐

dence against Johnson.

We therefore A FFIRM the judgment of the district court.