In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-1567 

NATHAN S. BERKMAN, 

Petitioner-Appellant, 

v.

FRANK VANIHEL, 

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:19-cv-00750 — Robert L. Miller, Jr., Judge. 

____________________ 

ARGUED NOVEMBER 12, 2021 — DECIDED MAY 11, 2022 

____________________ 

Before SYKES, Chief Judge, RIPPLE, and ST. EVE, Circuit 

Judges. 

RIPPLE, Circuit Judge. Nathaniel Berkman was tried in Indiana state court on first-degree and felony-murder charges 

for the killing of his drug supplier. The jury acquitted 

Mr. Berkman on the first-degree murder charge, but could not 

reach a verdict related to felony murder. A second trial was 

held at which one of the State’s key witnesses, Arlene Timmerman, was declared unavailable due to illness. 
2 No. 21-1567 

Timmerman’s testimony from the first trial was read into the 

record, and the jury convicted Mr. Berkman of felony murder. 

Mr. Berkman appealed his conviction, claiming error in 

the trial court’s admission of Ms. Timmerman’s testimony. 

The Court of Appeals of Indiana determined that the trial 

court did not abuse its discretion in admitting the evidence 

given that Timmerman was unavailable and that Mr. Berkman had had an opportunity to cross-examine Ms. Timmerman at the first trial. The Indiana Supreme Court denied 

transfer.

After exhausting state postconviction remedies, Mr. Berkman filed a pro se federal habeas petition in which he maintained that the introduction of Timmerman’s testimony violated his Sixth Amendment right to confront witnesses as set 

forth in Crawford v. Washington, 541 U.S. 36 (2004). The district 

court denied relief but granted Mr. Berkman a certificate of 

appealability on the question of whether the state appellate 

court unreasonably applied Crawford. Because the Court of 

Appeals of Indiana did not unreasonably apply Crawford, we 

affirm the district court’s denial of habeas relief.

I 

A. State Trial Court Proceedings

We recount the facts as set forth by the Court of Appeals 

of Indiana, which are presumed correct in this habeas proceeding.1

We supplement as necessary from the transcript of 

Mr. Berkman’s second trial.

1 See 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application 

for a writ of habeas corpus by a person in custody pursuant to the 
No. 21-1567 3

In August 2008, Mr. Berkman owed $2,000 to his cocaine 

dealer, Olen Hawkins. On August 30, Mr. Berkman arranged 

to meet Hawkins in a supermarket parking lot, ostensibly to 

pay Hawkins for what was owed. Prior to leaving for the 

meeting, Mr. Berkman told his girlfriend, Arlene Timmerman, with whom he resided, “that [he] was going to leave to 

obtain money and cocaine[,] and that he had to go by himself.”2

Mr. Berkman took Timmerman’s car to the supermarket 

parking lot, where he met Hawkins. Mr. Berkman got into 

Hawkins’s car, slit his throat, and took the drugs and money 

that Hawkins had with him. Mr. Berkman returned to Timmerman’s house between 9:30 p.m. and 10:00 p.m. Mr. Berkman explained to Timmerman what had transpired, and Timmerman saw Hawkins’s body. “[Mr.] Berkman, Timmerman, 

and Tanya Sullivan, who was visiting, then smoked crack cocaine in the basement until approximately 1:30 or 2:00 a.m.”3

 

At some point during the overnight hours, “[Mr.] Berkman retrieved a knife from the kitchen, held it to Timmerman’s neck,” and ordered her to the basement.4 Timmerman 

managed to escape to the home of a friend. The next morning 

judgment of a State court, a determination of a factual issue made by a 

State court shall be presumed to be correct.”).

2 Berkman v. State, 976 N.E.2d 68, 71 (Ind. Ct. App. 2012).

3 Id.

4 Id. 
4 No. 21-1567 

“Timmerman called home, [Mr.] Berkman apologized, and 

Timmerman returned home.”5

When Timmerman arrived, Mr. Berkman informed her 

that he had devised a plan to dispose of Hawkins’s body. On 

the morning of September 2, Mr. Berkman drove Hawkins’s 

car to a field, doused it with gasoline, and set it on fire. Hawkins’s car and remains were discovered two months later.

The State of Indiana charged Mr. Berkman with murder 

and felony murder, and the case proceeded to trial at which 

Timmerman testified in person. The “jury acquitted [Mr.] 

Berkman of murder but failed to reach a verdict on the felony 

murder count.”6

A second felony-murder trial began on August 30, 2011. 

The State intended to call Timmerman on the third day of 

trial, but called Sullivan to testify instead. At the beginning of 

the fourth day of trial, Timmerman was in the hospital, and 

so the trial court excused the jury and postponed the trial for 

several days.7

Timmerman appeared to testify the following Tuesday. 

She had testified for several minutes when the prosecuting attorney realized that Timmerman appeared unwell and asked 

to approach the witness. When the prosecutor inquired, “Are 

you okay?” Timmerman responded “No, I’m not.”8

5 Id.

6 Id. 

7 See Trial Tr. at 438, 442.

8 Id. at 463.
No. 21-1567 5

Timmerman then was escorted to a back room. There, the 

court made the following inquiries:

The Court: ... Present is the witness, 

Ms. Massa, Mr. Marcus [the prosecutor] and 

Mr. Page [defense counsel], and the court reporter.

Can you kind of tell me what’s going on with 

you right now? What’s happening here?

The Witness: I’m very nauseous. I was in 

the hospital for–since Wednesday until Saturday and they were testing me for MS. They 

thought I might have had a seizure, possibly a 

stroke, and they released me Saturday. I’m 

sorry, I’m burning up, very nauseous, and I 

have nothing in my stomach at all.

The Court: You haven’t eaten this 

morning?

The Witness: I’m afraid to.

 ... 

The Court: Can I get you a 7-Up or 

something like that, a Sprite? You think that 

might help?

The Witness: That might help ....

 ... 

The Witness: I’m just very sick to my 

stomach. It came on suddenly. It was nothing to 

do with the questions that Reggie was asking 
6 No. 21-1567 

me. I’m very comfortable answering anything 

either one of you guys have to ask me.

The Court: But now can you go back 

out there and do that? That’s the question.

The Witness: In a few minutes, I felt very 

nauseous. I thought I was going to throw up.

The Court: Let’s take a few more 

minutes, get her a 7-Up and see if that settles her 

stomach down a little bit and see where we go 

from there.

The Witness: I’m very sorry. I don’t want 

to delay this. I want to get this done with. It’s 

been delayed long enough due to me being in 

the hospital and I’m afraid I’m getting another 

migraine.

The Court: Okay. All right. Let’s get 

the 7-up and see if that will help you at all. You 

can go back in that room and sit down and relax 

and we’ll bring you something.

The Witness: Thank you.

 ... 

 ... Can I ask you another 

question? In my purse, I have some Tums in a 

baggy. Would I be able to get one of those?9

Once Timmerman had left the room, the court asked that 

Timmerman’s purse be retrieved so the witness could get the 

9 Trial Tr. at 465–68.
No. 21-1567 7

Tums. It then continued its discussion with counsel concerning how they should proceed. The court did not believe that 

it was going to be possible for the witness to continue. It then 

turned to the governing standard for declaring a witness unavailable. The court and both counsel agreed that the court 

could declare a witness unavailable if she was either unable 

to be present or unable to testify; Timmerman fell into the second category.10

Back in the courtroom, but after the jury had been excused 

for an early lunch, the court reiterated its determination: “In 

chambers, we were on the record and interviewed the witness. I determined at that point in time that she is not going 

to be able to continue with this trial. I’m declaring her unavailable.”11 Mr. Page then stated that he 

would like to interpose an objection to that being done, the reason being that under Crawford 

[v. Washington, 541 U.S. 36 (2004),] and classic 

confrontational case law, it denies the jury the 

number one thing they need, and that’s an opportunity to see the face-to-face confrontation 

between the defendant and the witness, and to 

judge the demeanor of the witness by her appearance and her voice.

I recognize we have a prior trial at which I 

cross-examined her at length. There may be 

some things that have been brought up so far 

that are—they don’t go directly to the substance 

10 See id. at 469–70.

11 Id. at 471–72.
8 No. 21-1567 

of Mr. Hawkins’ death, but they deal with some 

significant collateral issues.

And the problem with reading the transcript 

from the previous trial into the record ... is that 

... it doesn’t give the jury the opportunity to do 

the number one thing so many of them say during voir dire they need in order to judge a witness, and that is to observe how they testify.

The last trial testimony was—she was what I 

would call successfully cross-examined, successfully 

impeached on a number of points. But if one can 

only but see how she reacted to some of the 

questions and how she testified, it just doesn’t 

come across in this transcript.

And I think in this particular instance while 

we’ve got a witness who’s physically unable to testify today, I believe there could come a time in 

the future when she could come available to testify, when she is feeling better, when we do 

have the opportunity to present her to the jury 

so that they can see and judge her testimony 

based on how she testifies.

And therefore, my suggestion is that the 

time has come for a mistrial altogether.12

The court determined, however, that Mr. Page had had a full 

opportunity to cross-examine Timmerman in the first trial. 

Because the opportunity to cross-examine was the crux of the 

12 Id. at 471–73 (emphasis added).
No. 21-1567 9

Crawford decision, the court determined that the trial would 

go forward.13 

Timmerman’s testimony from the prior trial was then read 

aloud to the jury. Following the conclusion of evidence, the 

jury returned a guilty verdict against Mr. Berkman.

B. State Appellate Court Proceedings 

Mr. Berkman appealed and, among other issues, claimed 

that the trial court erred in failing to grant a mistrial. Within 

this argument, he also maintained that the trial court erred in 

admitting Timmerman’s prior testimony. Mr. Berkman began 

this discussion by noting that granting a mistrial is within the

trial court’s discretion. Under Indiana law, Mr. Berkman explained, a mistrial was warranted when the defendant is 

“placed in a position of grave peril to which he should not ... 

[be] subjected.”14 Mr. Berkman continued that one of the “subissues involved with the trial court’s ruling and subsequent 

denial of [Mr.] Berkman’s motion for mistrial” was that he 

“was denied his right to confront and cross-examine Timmerman in front of the jury.”15 In presenting his confrontation argument, Mr. Berkman noted that, “for the testimonial hearsay 

to come in, the declarant must be unavailable as well as allowing the defendant to have had a prior opportunity to crossexamine the declarant.”16 He further submitted that 

“Ind[iana] Evidence Rule 804(a)(4) defines unavailability 

13 See id. at 473–74.

14 R.7-3 at 25.

15 Id. at 28.

16 Id. at 30 (citing Crawford v. Washington, 541 U.S. 36 (2004)).
10 No. 21-1567 

where a witness is unable to testify because of a then existing 

physical illness.”17 According to Mr. Berkman, “there ha[d] 

been no showing that Timmerman was definitely unavailable 

to testify” due to illness.18

In its response, the State argued that “[Mr.] Berkman was 

not placed in ‘grave peril’ because the trial court did not abuse 

its discretion when it admitted Timmerman’s prior testimony.”19 It noted that the admission of evidence generally, as 

well as the decision to admit prior recorded testimony specifically, is “within the sound discretion of the trial court.”20

Turning to the standard of unavailability under Indiana Rule 

of Evidence 804(a)(4), the State noted that “Timmerman had 

recently been in the hospital for four days, being treated for a

possible stroke or seizure” and that the trial court had concluded that the prospect of Timmerman’s testifying “[did]n’t 

even seem possible.”21 

In his reply, Mr. Berkman did not contest the standard for 

evaluating unavailability—Indiana Rule of Evidence 

804(a)(4)—or maintain that the standard for reviewing that 

determination was something other than an abuse of discretion.22 Rather, he maintained that there had been an 

17 Id.

18 Id. at 31.

19 R.7-4 at 23.

20 Id. at 23, 24.

21 Id. at 24–25 (quoting Trial Tr. at 471).

22 See generally R.70–5 at 10–11.
No. 21-1567 11

“inadequate showing of the witness’s unavailability” and that 

his lack of opportunity to cross-examine Timmerman in front 

of the jury resulted in prejudice.23

The Court of Appeals of Indiana rejected Mr. Berkman’s 

argument. It explained:

Berkman contends that the trial court 

abused its discretion in declaring Timmerman 

unavailable. Soon after beginning her testimony, Timmerman indicated that she was 

“having an issue[,]” and trial was recessed. Tr. 

p. 463. When questioned by the trial court in 

chambers, Timmerman said that she was “very 

nauseous [and] burning up[,]” she was afraid 

that she might be developing a migraine, and 

she had “thought [she] was going to throw up.” 

Tr. pp. 466–67. Timmerman also indicated that 

she had been hospitalized from Wednesday to 

Saturday of the previous week, she had undergone testing for multiple sclerosis, and hospital 

personnel believed that she may have had a seizure or “possibly a stroke[.]” Tr. p. 466. After 

observing the witness, the trial court remarked 

that “I don’t see how we’re going to be able to 

continue with this. I’ll get [Timmerman] the 

[Tums] [she requested], but it doesn’t even seem 

possible to me.” Tr. p. 468. 

23 Id. at 11–12.
12 No. 21-1567 

Under the circumstances of this case, we 

cannot conclude that the trial court abused its 

discretion in declaring Timmerman unavailable. The trial court questioned Timmerman, 

who complained of nausea and felt that she 

might be developing a migraine. Timmerman 

also indicated that she had very recently been 

hospitalized for four days, with medical personnel suspecting MS, seizure, or stroke as the 

cause of her symptoms. Most importantly, the 

trial court personally interviewed Timmerman 

and was able to observe her behavior, demeanor, and appearance, something we cannot 

do. Berkman has failed to establish that the trial 

court abused its discretion in declaring Timmerman unavailable due to present illness.

... 

The Sixth Amendment to the United States 

Constitution provides, in part, that “[i]n all 

criminal prosecutions, the accused shall enjoy 

the right ... to be confronted with the witnesses 

against him[.]” ... Berkman argues that his right 

to confront witnesses against him was violated 

by the admission of Timmerman’s prior testimony.

It is well-settled that the admission of prior 

testimony is constitutional provided certain requirements are met. 

In Crawford v. Washington, 541 

U.S. 36 (2004), the Supreme Court 
No. 21-1567 13

held that the Confrontation 

Clause of the Sixth Amendment to 

the Federal Constitution prohibits 

admission in a criminal trial of testimonial statements by a person 

who is absent from trial, unless 

the person is unavailable and the 

defendant had a prior opportunity to cross-examine the person. 

Fowler v. State, 829 N.E.2d 459, 464 (Ind. 2005). 

... As we have discussed, the trial court did not 

abuse its discretion in declaring Timmerman 

unavailable, and there is no dispute that Berkman cross-examined Timmerman during her 

prior testimony. Berkman’s rights to confront 

the witnesses against him were not violated.24

Mr. Berkman petitioned for transfer to the Indiana Supreme 

Court, which was denied.

Mr. Berkman then filed a petition for state post-conviction relief, which was denied after an evidentiary hearing. The 

Court of Appeals of Indiana affirmed, and the Indiana Supreme Court denied transfer.

C. District Court Proceedings

Mr. Berkman filed a federal habeas petition in which he 

raised, among other challenges, a claim that his Sixth Amendment right to confront witnesses was violated by the admission of Timmerman’s testimony. In reviewing this claim, the 

24 Berkman, 976 N.E.2d at 75–76 (cleaned up).
14 No. 21-1567 

district court noted that its review was limited by 28 U.S.C. 

§ 2254(d). As interpreted by this court, § 2254(d) requires that 

“[a] petitioner ... show that the state court’s ruling on the 

claim ... was so lacking in justification that there was an error 

well understood and comprehended in existing law beyond 

any possibility for fair-minded disagreement.”25 

The district court determined that this standard had not 

been met. It noted that, by the time of the second trial, 

Mr. Berkman “had been in pretrial detention for nearly two 

years.”26 He had “sought to be released on bond prior to the 

second trial”; however, the state trial judge denied the request 

making it “clear that she intended to move the trial proceedings along as swiftly as possible.”27 The district court then recounted the events and discussion that took place in the trial 

court immediately after Timmerman left the stand. It observed: 

Nothing in this record suggests that 

Ms. Timmerman was feigning illness or trying 

to avoid testifying, and the prosecution made a 

good-faith effort to secure her presence. Still, 

Mr. Berkman thinks the judge should have done 

more before declaring Ms. Timmerman unavailable, including waiting longer to see if Ms. Timmerman might recover. In Mr. Berkman’s view, 

25 Berkman v. Warden, No. 3:19-CV-750-RLM-MGG, 2021 WL 826556, at *3 

(N.D. Ind. Mar. 4, 2021) (quoting Hoglund v. Neal, 959 F.3d 819, 832 (7th 

Cir. 2020)).

26 Id. at *6.

27 Id.
No. 21-1567 15

her problems would likely have cleared up 

within a matter of a few minutes. Maybe so, but 

the record also supports the conclusion that 

Ms. Timmerman’s problems were far more serious, as she said she almost vomited on the stand 

and thought she was getting a migraine. 

Ms. Timmerman had a history of migraines that 

caused her to see flashing lights and other visual disturbances. She had only been recently released from the hospital and was undergoing 

testing for potentially serious medical conditions. Federal habeas relief is not available 

merely because a court with the benefit of comfortable hindsight can envision other steps that 

might have been taken to secure a witness’s live 

testimony before declaring her unavailable.28 

The district court noted that state trial court could “have 

waited additional time before declaring Ms. Timmerman unavailable”; however, that likely would have resulted in “serious disruption to the court calendar and the schedules of jurors, witnesses, and lawyers. By the same token, the judge 

might have been reluctant to further delay the trial indefinitely, or declare another mistrial, in hopes that Ms. Timmerman would recover enough to testify.”29 Because the state trial 

court could have reached two reasonable but competing conclusions, the district court concluded that it must defer to the 

28 Id. at *7 (citation omitted).

29 Id.
16 No. 21-1567 

state trial court’s choice.

30 Moreover, the district court noted, 

Ms. Berkman’s counsel had had an opportunity to vigorously 

cross-examine Timmerman in the first trial. 

The district court also concluded that, even if there had 

been a Confrontation Clause violation, the error did not result 

in prejudice. Applying Brecht v. Abrahamson, 507 U.S. 619, 637 

(1993), the court acknowledged that “Timmerman’s testimony was critical to the state’s case,” but noted “other evidence corroborated her account.”31 Among the corroborating 

evidence was that the police had recovered a cell phone from 

the roof of the supermarket where, according to Timmerman’s testimony, Mr. Berkman had told her he threw the 

phone “to get rid of it.”32 “Timmerman was also able to direct 

police to the exact location where Mr. Hawkins’s body was 

recovered.”33 Furthermore, much of Timmerman’s testimony 

was corroborated by the prior testimony of Paul Berraza, and 

by the live testimony of Tanya Sullivan, Megan Johnson, and 

Shawn Black. Additionally, Mr. Berkman had taken the stand 

in his own defense and admitted at least some of the events 

covered in Timmerman’s testimony: He “admitted meeting 

Mr. Hawkins that night in the parking lot of the WiseWay, 

and to calling Mr. Hawkins on a pay phone to set up the meeting, even though he had a cell phone with him at the time.”34

30 See id. (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

31 Id. at *8.

32 Id. 

33 Id.

34 Id. at *9.
No. 21-1567 17

He also “had no clear explanation for why he was gone several hours, as recounted by Ms. Timmerman, Ms. Sullivan, 

and Ms. Johnston.”35 Although “[h]e denied killing Mr. Hawkins, ... [he] had no explanation as to why he appeared upset 

and agitated to witnesses when he returned home, or why he 

made a statement to Ms. Sullivan about having ‘hurt somebody really bad.’”36 Finally, “Mr. Berkman offered shifting 

and contradictory explanations to police when he was initially brought in for questioning.”37 For these reasons, the 

court concluded, “Mr. Berkman ha[d] not established actual 

prejudice, even assuming the state court’s resolution of his 

confrontation clause claim involving Ms. Timmerman’s testimony was erroneous.”38 

The district court granted Mr. Berkman a certificate of appealability with respect to the question of whether the state 

court unreasonably applied Crawford. 

II

On habeas review, this court, like the district court, reviews the state court’s decision according to the standards set 

forth in the Anti-Terrorism and Effective Death Penalty Act: 

(d) An application for a writ of habeas corpus 

on behalf of a person in custody pursuant to the 

judgment of a State court shall not be granted 

35 Id.

36 Id.

37 Id.

38 Id. at *10.
18 No. 21-1567 

with respect to any claim that was adjudicated 

on the merits in State court proceedings unless 

the adjudication of the claim— 

(1) resulted in a decision that was contrary 

to, or involved an unreasonable application of, 

clearly established Federal law, as determined 

by the Supreme Court of the United States; or

(2) resulted in a decision that 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). This standard was intended to be “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). Indeed, a state court decision can be reasonable even if we believe “it is an incorrect application of Supreme Court precedent,” Schmidt v. Foster, 911 F.3d 469, 477 (7th Cir. 2018) (citing 

McDaniel v. Polley, 847 F.3d 887, 893 (7th Cir. 2017)), “if the 

result is clearly erroneous,” id. (citing White v. Woodall, 572 

U.S. 415, 419 (2014)), or if the petitioner has “a strong case for 

relief,” id. (quoting Harrington, 562 U.S. at 102). 

Moreover, as § 2254(d) makes clear, Supreme Court precedent provides the standard against which the reasonableness 

of the state court’s action is measured. The Supreme Court has 

stated unequivocally, and on more than one occasion, that 

“clearly established law as determined by this Court ‘refers to 

the holdings, as opposed to the dicta, of this Court’s decisions 

as of the time of the relevant state-court decision.’” Yarborough 

v. Alvarado, 541 U.S. 652, 660–61 (2004) (quoting Williams v. 

Taylor, 529 U.S. 362, 412 (2000)). It does not include reasonable 

extensions of those holdings in circuit precedent. See Glebe v. 
No. 21-1567 19

Frost, 574 U.S. 21, 24 (2014) (per curiam) (restating that “circuit 

precedent does not constitute ‘clearly established Federal law, 

as determined by the Supreme Court’” and rejecting the argument that circuit precedent could “help ... determine what 

law is ‘clearly established’” (cleaned up)).

With this standard in mind, we turn to Mr. Berkman’s contentions.

A. 

Mr. Berkman contends that the state appellate court’s decision was contrary to or unreasonably applied Crawford in 

three ways; none of these contentions are persuasive. First, according to Mr. Berkman, Crawford imposes a continuing duty 

on the trial court to evaluate a witness’s availability.39 As applied in his case, this duty placed a burden on the trial court 

to reevaluate Timmerman’s condition after the early-lunch recess to determine if her condition had improved to the point 

that she was able to testify. The trial court’s failure to do so, 

Mr. Berkman continues, violated Crawford, and the state appellate court’s failure to recognize this error was unreasonable.

Mr. Berkman’s sole support for his continuing-duty argument is a decision from our court, Burns v. Clusen, 798 F.2d 

931 (7th Cir. 1986), which is not sufficient to meet his burden 

under § 2254(d)(1). As we noted earlier, “[t]o grant the petition, we must conclude that the state court unreasonably applied Supreme Court precedent, not our own.” Flint v. Carr, 

39 See Appellant’s Br. 10 (citing Burns v. Clusen, 798 F.2d 931, 943 (7th Cir. 

1986)).
20 No. 21-1567 

10 F.4th 786, 796 (7th Cir. 2021) (citing Glebe, 574 U.S. at 24). 

Having failed to come forward with any clearly established 

Supreme Court precedent that has imposed such a duty on 

the trial court, we must conclude that Mr. Berkman has not 

met his burden under AEDPA.40

B.

Mr. Berkman also maintains that the state appellate court 

ran afoul of Crawford because it “did not address the state’s 

burden in proving that Timmerman was unavailable.”41

There is no question that burden rests on the party seeking to 

declare the witness unavailable, here the prosecution. See Ohio 

v. Roberts, 448 U.S. 56, 74–75 (1980), overruled on other grounds 

by Crawford, 541 U.S. 36. 

40 Even if Burns provided a basis by which to evaluate the state court’s 

opinion, we would not conclude that the state court’s determination was 

unreasonable. In Burns, the victim, L.L., was in a psychiatric hospital in 

early September 1980. However, the State did not file a motion seeking to 

have her declared unavailable until December of that year. At that point, 

the testifying physician had not seen L.L. for three weeks. Moreover, the 

trial court did not rule on the motion until January 1981, and the trial began in March 1981. See Burns, 798 F.2d at 938. Thus, at the time of trial, 

there were “[n]o findings on the basis of up-to-date evidence ... with respect to the witness’ physical or mental conditions.” Id. at 939. Here, by 

contrast, just a few hours separated the trial court’s determination that 

Timmerman was physically unable to testify and the reading of Timmerman’s testimony to the jury. Burns simply provides no basis for concluding that the trial court relied on stale evidence when it admitted Timmerman’s prior testimony.

41 Appellant’s Br. 12.
No. 21-1567 21

Although couched in terms of reasonableness,42 Mr. Berkman’s argument does not fall neatly within the “unreasonable 

application” language of § 2254(d)(1). As we have explained, 

“[a] state court ‘unreasonably applies’ clearly established Supreme Court decisions when it ‘correctly identifies the governing legal rule but applies it unreasonably to the facts of a 

particular [petitioner’s] case.’” Burgess v. Watters, 467 F.3d 

676, 681 (7th Cir. 2006) (alteration in original) (quoting Laxton 

v. Bartow, 421 F.3d 565, 570 (7th Cir. 2005)). Rather, Mr. Berkman appears to be arguing that the state appellate court’s decision was “contrary to” established Supreme Court precedent because it failed to quote or cite Supreme Court precedent for the proposition that the prosecution bears the burden 

of proof. The Supreme Court, however, refused to impose 

such a requirement on state courts. In Early v. Packer, 537 U.S. 

3 (2002), the Supreme Court stated: 

A state-court decision is “contrary to” our 

clearly established precedents if it “applies a 

rule that contradicts the governing law set forth 

in our cases” or if it “confronts a set of facts that 

are materially indistinguishable from a decision 

of this Court and nevertheless arrives at a result 

different from our precedent.” Avoiding these 

pitfalls does not require citation of our cases—

indeed, it does not even require awareness of 

42 See Appellant’s Br. 12–13 (“In evaluating Berkman’s Crawford claim, the 

Indiana Court of Appeals did not address the state’s burden in proving 

that Timmerman was unavailable. Instead, the Indiana Court of Appeals 

merely held that the trial court did not abuse its discretion in finding that 

Timmerman was unavailable. Therefore, the Indiana courts unreasonably 

applied clearly established federal law.” (internal citation omitted)).
22 No. 21-1567 

our cases, so long as neither the reasoning nor 

the result of the state-court decision contradicts 

them.

Id. at 8 (quoting Williams, 529 U.S. at 405–06). 

Here, neither the reasoning nor the result of the state appellate court’s decision contradicts Supreme Court precedent, 

nor suggests that the prosecution failed to meet its burden of 

proof. Timmerman initially was unavailable to testify because 

she was hospitalized. The trial court postponed the trial for 

several days to allow her the opportunity to recover. The record is clear that the state trial judge, the prosecutor, and defense counsel all realized there was a possibility that Timmerman may not be well enough to testify when the trial resumed. In anticipation of this possibility, the court had instructed counsel to confer about the transcript of her prior testimony that would be read to the jury. Furthermore, when the 

trial resumed, the judge and both counsel witnessed firsthand the physical distress that Timmerman was suffering and 

agreed that Timmerman, although physically present, was 

unable to continue with her testimony; defense counsel even 

acknowledged on the record that “we’ve got a witness who’s 

physically unable to testify today.”43 Thus, given this consensus 

as to Timmerman’s status, there was no reason for either the 

state trial court or the state appellate court to address the 

prosecution’s burden of proof.44

43 Trial Tr. at 473 (emphasis added).

44 Mr. Berkman does not argue in this court that his confrontation rights 

were violated by the trial court’s failure to postpone the trial for a second 
No. 21-1567 23

C. 

Finally, Mr. Berkman contends that the state appellate 

court’s application of Crawford was unreasonable because it 

only evaluated whether the trial court had “abuse[d] its discretion in finding that Timmerman was unavailable” instead 

of applying de novo review required for constitutional issues.

45 According to Mr. Berkman, this shows that the state 

appellate court did not understand that he was raising a constitutional question, and, consequently, it did not subject the 

trial court’s decision to the more searching review required 

for constitutional issues.46 

We cannot accept this argument. First, we cannot fault the 

state appellate court for addressing the issues as Mr. Berkman 

framed them in his brief. On his direct appeal, Mr. Berkman 

submitted that Indiana Rule of Evidence 804(a)(4) provided 

the definition of unavailability. In its response, the State noted 

that a trial court’s evidentiary rulings are reviewed for an 

time, nor does he claim that he did not have an adequate opportunity to 

cross-examine Timmerman in the first trial.

45 See Appellant’s Br. 12–13. The argument in Mr. Berkman’s opening 

brief concerning standard of review, even when viewed generously, is 

cursory at best. We caution counsel that waiting to develop an argument 

until the reply brief risks forfeiture of that argument. See, e.g., Rexing Quality Eggs v. Rembrandt Enters., Inc., 996 F.3d 354, 365 n.52 (7th Cir. 2021). The 

requirement that an argument is raised and developed in the opening brief 

“ensures that the opposing party has an opportunity to reflect upon and 

respond in writing to the arguments that his adversary is raising.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012). 

Moreover, it ensures that the issues have been distilled and fully joined so 

that the court can reach an informed decision in an efficient manner.

46 See Reply Br. 2–3.
24 No. 21-1567 

abuse of discretion. In his reply brief to the state appellate 

court, Mr. Berkman did not contest this standard of review or 

maintain, as he does in this appeal, that a different standard 

of review should apply. In response to the parties’ arguments, 

the Court of Appeals of Indiana addressed the issue of unavailability according to Indiana Rule of Evidence 804(a)(4) and

employed the standard attendant to a determination of admissibility under the Indiana Rules of Evidence.47 However, 

regarding the ultimate question of whether Mr. Berkman’s 

right to confront witnesses under the federal constitution was 

violated, the state appellate court both drew upon the Crawford standard and conducted its own review.48

Looking beyond his failure to alert the state appellate 

court to what he now claims is the appropriate standard of 

review, the central legal flaw in Mr. Berkman’s argument is 

that he has not directed us to any Supreme Court case that 

sets forth a standard of review for a finding that a witness is 

unavailable. Indeed, although the Supreme Court has 

acknowledged cases in which witnesses have been declared 

unavailable due to physical or mental illness, see Motes v. 

United States, 178 U.S. 458, 473–74 (1900), it has not given any 

substantive guidance for how courts should determine 

whether a witness may be declared unavailable due to illness, 

much less the standard of review to be applied in reviewing a 

trial court’s determination of unavailability. As “the Supreme 

Court has ‘never addressed’ a case like this one—factually or 

legally— ... we cannot brand the state-court decision 

47 See Berkman, 976 N.E.2d at 75.

48 See id. at 75–76.
No. 21-1567 25

unreasonable.” Schmidt, 911 F.3d at 478 (quoting Carey v. Musladin, 549 U.S. 70, 76 (2006)). 

We acknowledge that in Burns we concluded that “unavailability” was a “mixed question of law and fact” and therefore subject to more searching review than the one employed 

by the state appellate court here. However, as we already 

have noted, “[t]o grant the petition, we must conclude that the 

state court unreasonably applied Supreme Court precedent, 

not our own.” Flint, 10 F.4th at 796 (citing Glebe, 574 U.S. at 

24). 

Moreover, even if the standard that we articulated in 

Burns were a standard definitively articulated in Supreme 

Court cases as the governing standard, we could not conclude 

that the state court’s application of that standard was unreasonable in this case. In the mine run of cases, a trial court is 

called upon to assess the reasonableness of the prosecution’s 

efforts to procure a witness, specifically whether those efforts 

were sufficient and whether they were undertaken in good 

faith. See generally Roberts, 448 U.S. at 74. In such a case, the 

“determination on ‘unavailability’ goes beyond assessments 

of credibility and demeanor.” Burns, 798 F.2d at 941. Here, by 

contrast, Timmerman’s attendance had been procured, but 

she had a sudden onset of illness that affected her ability to 

testify. The issue of unavailability therefore was tied directly 

to Timmerman’s physical condition, demeanor, and credibility, which, as we noted in Burns, are assessments “best made 

in the trial court and not properly ignored by courts of appeals.” Id. Therefore, we could not conclude that the state appellate court unreasonably applied that standard when it deferred to the state trial court’s assessment of Timmerman’s 

unavailability under the circumstances presented here.
26 No. 21-1567 

Because the Supreme Court has articulated neither a substantive standard governing unavailability arising from a witness’s illness, nor a standard of review governing a trial 

court’s determination of unavailability, we cannot conclude 

that the state appellate court’s decision was unreasonable.49

Conclusion

Here, the state trial court determined that Timmerman 

was unavailable to testify based on her documented physical 

illness. At that time, no one disputed her inability to testify. 

The state trial court further determined that Timmerman had 

been subjected to a full cross-examination by Mr. Berkman’s 

attorney during his first trial. It therefore concluded that 

49 In his reply brief, Mr. Berkman maintains that the state appellate court 

decision not only unreasonably applied the law, but also “was based on 

an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See Reply Br. 3 (quoting 28 U.S.C. 

§ 2254(d)(2)). Even if this argument had been preserved in his opening 

brief, see supra note 45, it would be meritless. “A state court’s factual determinations are presumed correct, and the petitioner must rebut that presumption by clear and convincing evidence.” Cal v. Garnett, 991 F.3d 843, 

849 (7th Cir. 2021) (citing 28 U.S.C. § 2254(e)(1)). Mr. Berkman does not 

acknowledge this standard, much less satisfy it. Our own review of the 

record reveals that the state appellate court fairly summarized the events 

that transpired in the state trial court. It recognized that the state trial court 

was in a superior position to assess Timmerman’s ability to testify. See 

Berkman, 976 N.E.2d at 75. Mr. Berkman has come forward with nothing 

to convince us that the state appellate court’s ruling “omitted, mischaracterized, or unjustifiably minimized critical evidence.” Reply Br. 3. Consequently, there is no basis for granting relief under § 2254(d)(2).

 Because Mr. Berkman has not established a constitutional error, we 

have no occasion to consider whether that error “had a substantial and 

injurious effect or influence in determining the jury’s verdict.” Brecht v. 

Abrahamson, 507 U.S. 619, 638 (1993).
No. 21-1567 27

Crawford did not prohibit the admission of Timmerman’s 

prior testimony. Relying on Crawford, the state appellate court 

affirmed. Neither the reasoning employed by the state appellate court nor the result it reached is contrary to or unreasonably applies established Supreme Court law. We therefore affirm the district court’s denial of Mr. Berkman’s petition for 

habeas. 

AFFIRMED