### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 3144
A RTHU R J. B RYANT , Petitioner

- Appellant ,

v.

R ICHARD B ROWN , Respondent

- Appellee

.

____________________ Appeal from the United States District Court for the Southern District of Indiana , Terre Haute Division

. No. 2:1 3

- cv

- 00218

- WTL

- WGH

— William T. Lawrence , Judge

.

____________________
A RGUED J ANUARY 4 , 2017

— D ECIDED O CTOBER 23, 2017

____________________

Before P OSNER , * E ASTERBROOK , and S YKES , Circuit Judges

. S YKES , Circuit Judge

. Arthur John Bryant, an Indiana pri soner, was convicted of murdering his stepmother. He was 17 years old at the time of the killing

. Under Indiana law juveniles in police custody have a statutory right to “mea n-

* Circuit Judge Posner retired on September 2, 2017, and did not partic ipate in the decision of this case, which is being resolved by a quorum of the panel under 28 U.S.C. § 46(d).2 No. 15

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ingful consult ation” with a parent before waiving their constitu tional rights

. See I ND

. C ODE § 31

- 32

- 5

- 1. Bryant met with his mother and made an incriminating statement to her. T

wo detectives surre ptitiously recorded their conversation , and the incriminating statement was introduced at Bryant’s trial through the test imony of both eavesdropping officers

. Bryant’s counse l objected to the first detective’s testimony but the objection was overruled . On direct appeal t he Ind iana Court of Appeals held that th e statement should not have been admitted , but because Bryant’s counsel did not object to the second detective’s testimony about the same
statement , the error was both unpreserved and effectively harmless

. On state postconviction review, Bryant raised a claim of ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668 (1984) . He identified five errors , includ ing his counsel’s failure to preserve the surreptitious

recording iss ue and several other alleged mis steps at trial. In a separate claim, he raised a Brady violation stemming from a false hood in a police report

. Finally, i n a catch

- all arg ument , he claimed a right to relief based on cumulative error. The trial judge was not persuaded by these arguments

. Neither was t he Indiana Court of Appeals. Bryant then sought f ederal habeas relief under 28 U.S.C. § 2254 , reitera ting the same claims. The district cour t denied relief , and w e affirm the judgment . T he state appellate court reasonably applied Strickland and Brady

. I. Background On January 4, 2000 , Carol Bryant went missing. A few days later the police discovered her body in the trunk of herNo. 15

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aban doned car . At the time of her death, Carol was living with her husband, Lee Bryant, at their home in Harrison Coun ty in southern Indiana

. Lee’s 17

- year

- old son, Arthur John Bryant, also lived with the couple ; to avoid confusion we’ll refer to him as “Bryant” and use first names for other family members. Bryant had previously lived with his mother , Kristi, but she kicked him out because she could no longer control his behavior. Among other things, he stole her truck , threatened to kill her , chased her around the house with a baseball bat , and choked her. On the day of Carol’s disappearance, Lee came home midday to have lunch with his wife and son , then went back
t o work. When he returned home that evening, both C arol and Bryant were gone. Lee found a note from Bryant saying he was spendin g the night at a f riend’s house . Lee called Carol’s family and friends in search of her , but no one knew where she was. When morning came without word from her , Lee repo rt ed her missing

. Meanwhile , Bryant was driving around in Carol’s car, showing it off to friends. He had stolen her jewelry, some of which he sold to a pawnshop ; the rest he gave away

. After several days h e abandoned the stolen car on the side of a rural road. When p olice recovered and searched it , they found Carol’s body in the trunk wrapped in a comfort er

. She had been strangled. Police also found a pair of Bryant’s jeans in the trunk . The jeans were stained with bodily fluids . DNA analysis later confirmed that the bodily fluids were Carol’s

. D etectives soon learned that Bryant had an angry rel ationship with his stepmother. They discovered some rap4 No. 15

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lyrics he had written describing Carol in profane terms and dis cussing a plan to kill a woman and leave her body in the trunk of a car. On January 8 sheriff’s deputies located Bryant in a nea rby town and arrest ed him for Carol’s murder

. When t he y arriv ed a t the Harrison County Sheriff’s Office , Bryant asked for a lawyer . In the meantime, he was allowed t o meet with his mother in accordance with a n Indiana statute that gives juveniles in custody the right to consult with a parent before waiving their constitutional rights. See I ND

. C ODE § 31

- 32

- 5

- 1. Sheriff’s D etectives Richard Bauman and William Whelan secretly eavesdropped on the conversation using a hidden recording d evice. They over heard Bryant tell his mother: “I told dad I had a problem and if he didn’t take c are of it, I would, and I did.”
The investigation continued after Bryant’s arrest. Dete ctive Bauman interviewed Carol’s friend Tracy Beemer (neé Bor de n) , who t old him that Carol had confided to her that Lee was abusive and had threatened to kill her

. She also told the detective that she and Carol had contacted domestic

violence shelters a few days before Carol’s death . Detec tive Bauman’s report wrongly stated that Beemer told him that Carol had identified Bryant , not Lee, as her abuser . Th e prosecution disclosed this report to the defense before trial. Bryant’s defense team

— he had two attorneys

— did no t follow up by interview ing Beem er

. Bryant stood trial for mu rder, theft, and obstruction of justice. Some factual detail about t h e trial is necessary to understand the issues raised in this appeal. The prosecution called both D etective Bauman and Detective Whelan as witnesses

. The detectives testif ied about Bryant’ s incrimina t-No. 15

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ing statement to his mother at the Sheriff’s Office . Bryant’s counsel objected to this line of questioning duri ng Detective Bauman’s testimo ny , raising the statutory violation . T he objection was overruled

. Bryant’s c ounsel did not reiterate the object ion when Detective Whelan testified on the same subject

. A s relevant here , t he prosecution also called Alice Alcorn , a friend of Carol’s. S he test ified that Bryant told her he would kill Carol before he turned 18. This aspect of her
tes timony came as a surprise to everyone ; Alcorn had not previously disclosed this information to the prosecution
team. Bryant’s defense at trial was to point the finger at Lee as the real killer. Bry ant took the stand in his own defense and
to ld the jury tha t on the day of Carol’s disappearance , he left the house in the middle of lunch because she and Lee were fighting . He testified that he returned a short while later to find Lee standing over Carol’s dead body

. Lee told him to “take care of this, ” and Bryan t left the home in Carol’s car with her body in the trunk . He admitted that he drove around for several days with her body in the trunk before abandoning the car on the side of a road. He also admitted that he stole her jewelry , pawned some of it , and gave away the rest. Finally, h e acknowledged that his relationship with his stepm other was strained and at times angry

. Before trial t he judge had granted a defense motion to

ex clude evidence of Bry ant’s threats and violen ce against his mother , Kristi

. As Brya nt’s testi mony unfolded , the jury submitted a question ask ing why he went to live with his father

. Bryant’s counsel objected based on the court’s pretrial ruling, and the judge sustained the objection

.6 No. 15

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T he next day , however, during the direct examination o f Bryant’s parole officer , Stephanie Ringer, defense counsel returned to this subject , asking Ringer why Bryant went to live with his father

. She re plied that his mother had kicked him out of her house because he stole h er truck. Later when the defense called Kristi as a witness , the prosecutor cross

examined her about the other reasons why she kicked her

son out

— namely , that he had threaten ed her, chased her with a baseball bat , and chok ed her. Over Bryant’s objection
t he judge allowed this line of questioning , ruling that the defense had opened the door by asking Ringer why Bryant went to live with his father

. Ringer also testified about Bryant’s prior convictions. During Bryant’s testimony, he had been impeached with his prior convic tions ; the defense team put the parole officer on the stand to supply some context

. The jurors submitted a question asking what specific crimes he was on p arole for

. T he question was allowed without objection

. Ringer r esponded that he was on parole for theft, burglary, and a weapons of fense

. The jury found Bryant guilty as charged . On direct a ppeal h e challenged the admission of Kristi ’s testimony about his threats and violence toward her. He also challenged the admission of his incrim inating statement to his mother based on the detectives’ violation of his statutory right to meaningful consultation with a parent

. The Indiana Court of Appeals rejected these arguments and affirmed. The court agreed with the trial judge that the defense had opened the door to Kristi’s testimony about her son’s violent behavior by asking Ringer why Bryant went to live with his father. The court reason ed that excluding thisNo. 15

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line of cross

- examination would have left the jury with the false impression that Kr isti kicked her son out solely b ecause he had stole n her truck. The court also held that the covert recording of the conversation between Bryant and his mot her violated his statu tory right to parental consultation, so the judge should have sustained the objection to the admission of Detective Bauman’s testimony about Bryant’s incrimina ting statement. But because the defense did not object to Detective Whelan’s identical testimony , the court held that the issue was waive d , or at least not a reversible erro r

. In other words, because Detective Bauman’s erroneously admitted testimony essentially duplicated Detective Whelan’s unchallenged testimo ny on the same subject, the

error was both unpreserved and harmless

. Bryant then sought state postconviction relief based on ineffective a ssistance of counsel . He raised five alleged

errors by his trial attorneys : (1) the failure to object to Detective Whelan’s testimony regarding his incriminating statement to his mother ; (2) the failure to impeach Alcorn after she une xpectedly testified about his threat to kill Carol; (3) the failure to object to Ringer’s testimony regarding his prior convictions; (4) open ing the door to evidence about his violence and threat s against his mother ; and (5) the failure to interview Beemer, whose testimony regarding Lee’s abuse of Carol might have supported the defense that Lee was the killer . Bryant also asserted that Detective Bauman’s misleading police report about Beemer’s state ment violat ed Brady v. Maryland , 373 U.S. 83 (1963). Finally, he argued that the combined effect of these error s warranted relief under the cumulative

- error doctrine

.8 No. 15

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The trial judge rejected each of these claims , and the Indi ana Court of A ppeals affirmed. Bryant’s trial attorneys testified at the postconvic tion hearing that the challenged decisions could not be characterized as strategic trial jud gments . The appellate court discounted this testimony as the product of hindsight bias and r easoned instead that the decisions in question all dealt with matters of trial strategy

. The court concluded that the performance of Br yant’s d efense team was not objectively unreasonable when evaluated

a s of the time th e decisions were made. For two of the five alleged errors, t he appellate court also addressed the question of prejudice under Strickland

. The court noted that the failure to object to Detective Whelan’s testimony about Bryant’s incriminating statement was not prejudicial in light of the abundant evidence of his guilt. The
court also held that the fail ure to interview Beem er was not prejudi cial because her testimony about Carol’s statements would have been inadmissible hearsay

. The court rejected Bryant’s Brady claim as well , noting first that the prosecution had disclosed Detective Bauman’s report about his interview with Beemer , so the defense team

was aware that she was a potential witness and could have discovered her true acco unt of Lee’s abuse . The court also held that because Beemer’s testimony about Carol’s stat ements to her w ould have been excluded as hearsay, the misleading police report was ultimately im materi al

. And b ecause there was no error at all, much less multiple errors , the court rejected Bryant’s claim of cumulative error. Bryant then moved for federal habeas relie f under § 2254 , asserting the same Strickland and Brady claims

. Th e district judge denied the motion , concluding that the state appellateNo. 15

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court reasonably applied the Strickland standard to each of Bryant’s claims . The judge faulted the state court ’s concl usion that the failure to interview Beemer was not deficient performance; that ruling , the judge thought, was unreason able. But because the state court reasonabl y concluded that this error was not p rejudic ial, the judge found no basis for relief on any asp ect of Bryant’s Strickland claim. The judge also concluded that the state appellate court reasonably applied Brady

. II. Discussion The state courts adjudicated Bryant’s Strickland and Brady claims on the merits, so our review is governed by § 2254(d)’s deferential standard . A f ederal habeas court may not grant relief unless the state court’s deci sion “was contr ary to , or involved an unreasonable application of , clearly estab lished F ederal law ” or “was based on an unreasonable determination of the facts i n light of the evidence presen ted.” 28 U.S.C. § 2254(d). T his standard requires the habeas petitioner to show that the state court’s ruling “ was so lacking in justification that there was an error well unde rstood and comprehended in existing law beyond any poss ibility for fairminded disagreement.” Ward v. Neal , 835 F.3d 698, 703 (7th Cir. 2016) (quoting Harrington v. Richter , 562 U.S. 86, 103 (2011)).
A. Ineffective Assistance of Counsel

T he familiar Strickland standard for Sixth Amendment claims of ineffective assistance of counsel consid er s whether counsel’s performance was deficient and , if so, whether th e deficient performance prejudiced the petitioner. Strickland v. Washington , 466 U.S. 668, 687

– 88 (1984). The first step in this10 No. 15

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framework asks “whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690. The prejudice inquiry asks whether there is “a reasonable prob ability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id

. at 694. Because “[t]here are countless ways to provide effective assistance,” Strickland established a “strong presumption that counsel’s represen tation falls within a wide ran ge of reasonable representation

. ” Hinesley v. Knight , 837 F.3d 721, 732 (7th Cir. 2016) (quoting Strickland , 466 U. S. at 689

– 90). The deferential nature of the Strickland standard , combined with the deference owed state

- court decisions under § 2254(d) , means that our review is “doubl y deferential.” Id. (quoting Knowles v. Mirzayance , 556 U.S. 111, 123 (2009)).

1. Failur e to Preserve the Surreptitious

- Recording Issue The state appellate court held that counsel’s failure to o bject to Detective Whelan’s testimony about Bryant’s incrim inating statement to his mother did not fall outside the range of competent representation

. The court reasoned that the decision to make or withhold an objection is ordinarily a matter of trial stra teg y and often depends on factors unrela ted to the merits

— to avoid irritating the jury , for example, or to refrain from highlighting unfavorable evidence or crea ting the impression that the defendant has something to hide. The court also held that even if the failure to object fell below the constitutional standard, it was not prejudicial given the overwhelming evidence of Bryant’s guilt. That was not an unreasonable way to resolve this aspect of Bryant’s Strickland claim. In hind sight the lack of anNo. 15

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object ion s eems significant ; after all, the appellate court said it was error to admit Bryant’s incriminating statement based on the detectives’ violation of his statutory right to parental consultation . But the court also found no reasonable prob ability of a different outcome, both because the error was ultimately harmless and the evidence of Bryant’s guilt was plentiful

. The court’s no

- prejudice ruling is well within the bounds of § 2254(d) reasonableness.

2. Failure to Impeach Alcorn
The state a ppellate court also reasonably concluded that the decision to forgo impeachment of Alice Alcorn was a matter of trial strategy. A “ decision not to impeach a partic ular witness is normally considered a strategic choice within
t he discretion of counsel.” Jon es v. Butler , 778 F.3d 575, 584 (7th Cir. 2015) . Th at is especially true here because it is far from clear that an y impeachment would have been succes sful

. Alcorn’s trial testimony about Bryant’s threat to kill Carol was a surprise to everyone. Her reasons for not reporting this to the prosecution team before trial were unknown. For all anyone knew, she may have had a good reason for not revealing this information sooner. And an y impeachment attempt would have drawn more attention to this dam aging testimony. Instead Bryant’s counsel limited his cross

examin ation to Alcorn’s knowledge of Lee’s abuse of Carol

— the foundation of Bryant’s primary defense theory. The state court reasonably characterized that approach as strate gic and within the norms of p rofessional competence

.12 No. 15

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3. Failure to Object to Ringer’s Testimony A bout B ryant’s Prior Convictions Bryant’s counsel did not object to the jury ’s inquiry du ring Ringer’s testimony about the specific crimes for which Bryant was on parole . Once again the s tate court held that this decision was a matter of trial strategy and not outside the range of competent representation. T he court noted that it was important to avoid the appearance that Bryant had something to hide a nd to build the jury’s trust and rece ptive ness to Bryant’s version of events. These strategic goals are especially strong in the face of a question posed by the jury it self. It was not un reasonabl e to conclude that counsel’s choice to withhold objection was within the range of profe ssional competence

. 4. Opening the Door to Kristi’s Testimony A bout Bryant’s Violent Behavior and Threats Bryant’s defense team obtained a pretrial order excluding evidence of his violent behavior and threats against his mother. But this evidence came in anyway when the trial judge ruled that Bryant’ s counsel had opened the door to it during Ringer’s direct examination

. At the postconviction hearing , the attorney testified that she did not think her examination of Ringer opened the door. Evidence of Bryant’s crim inal history and fraught relationships with his family was already before the jury through his own testimony ; p utting his parole agent on the stand was intended to pr ovide some explanatory context . C ounsel explained that at the time of trial , she did not t hink Ringer’s answer to the que stion about why Bryant was kicked out of his mother’s home

— he had stolen her truck

— would risk admission of his violent altercations with his mother.No. 15

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Again, in hindsight this line of questioning was a mi stake . B ut the state a ppellate court found it to be a reasonable strategic choice

— not without risk certainly , but not outside the bounds of professional competence either

. On § 2254(d) review, we cannot disturb a state

- court judgment unless the ruling was so far afield that no fair

- minded jurist could find it reasonable. Richter , 562 U.S. at 103. We can’t say that about this ruling . A fair

- minded judge could conclude that Bryant’s counsel reasonably thought that she could contain the scope of this line of questioning

— in other wo rds, that it was possible to put before the jury a partial explanation for why Bryant was kicked out of his mother’s house without risking admission of evidence of his more violent behavior s

. Error s result ing from strategic miscalculations may fall within the wide range of competent representation . I t was not unre asonable for the state appellate court to charac terize counsel’s decision in that way

. 5. Failure to Interview Beemer Finally, the state appellate court concluded that the dec ision not to intervie w Tracy Beemer was not constitutionally deficient. A “heavy measure of deference” is owed to an attorney’s “particular decision not to investigate” certain witnesses. Strickland , 466 U.S. at 6 91. T he state court gave the defense team the benefit of the doubt here . The court also found a lack of prejudice ; even if Bryant’s counsel had interviewed Beemer, her testimony about Carol’s statements of spousal abuse would have been inadmissible hearsay. We see nothing unreasonable in this application of Strickla nd ’s prejudice standard

. Before we mov e on , we pause to address a point Bryant raises about the testimony of h is trial attorneys at t he pos t-14 No. 15

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conviction hearing

. He makes much of t h e fact that both attorneys declined to characterize any of the challenged dec isions as matters of trial strategy . But they also testified that they were concern ed about over

- objecting and wanted to avoid creating the impression that Bryant had something to hide . These are aspects of trial strategy. More fundamentally, t he Supreme Court has warned of the effects of hindsight bias in evaluating Strickland claims:

“ After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibi lity for an unfavorable outcome

. ” Richter , 562 U.S. at 109 . B ut Strickland

“ calls for an inquiry into the objective reasonableness of counsel’s performance, not counsel’s subjective state of mind.” Id

. That Bryant’s attorneys acknowledged making mistakes “merely [highlights] that the defense strategy did not work out as well as counsel had hoped, not that counsel was incompetent.” Id.

B. Brady Claim
The Brady rule holds that “suppression by the pros ec ution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” 373 U.S. at 87. “Suppression” occurs when the prosecution “fail[s] to disclose evidence not ot herwise available to a reasonably diligent defendant.” Jardine v. Dittmann , 658 F.3d 772, 776 (7th Cir. 2011). And evidence is deemed “material” only when “ a reasonable probability [exists] that, had the evidence been disclosed to the defense, the result of the proceeding w ould have been different.” United States v. Bagley , 473 U.S. 667, 682 (1985).No. 15

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Bryant’s Brady claim centers on Detective Bauman’s police report about his interview with Tracy Beemer. The report stated that Beemer told him of Carol’s complaints about abuse by Bryant , when what she really said was that Carol had confided in her about abuse by Lee

. The state appellate
court held that Beemer’s actual statements were not su ppressed in violation of Brady because they could have been discovered by tria l counsel th rough reasonable diligence

. The court also held that even if they were suppressed, the
statement s were not material because Beemer’s testimony about what Carol told her was inadmissible hearsay

. Bryant characterizes the first holding as an unreasonable app lication of Brady

. Even if we agreed, the court reasonably rejected the claim on materiality grounds, so relief under § 2254(d) is unwarranted. B ryant argues at length that Beemer’s testimony about what Carol told her would have been admissible under Indi a na’s state

- of

- mind exception. See I ND

. R. E VID

. 803(3). But that’s a quarrel about the state court’s ruling on a matter of state law and not a basis for § 2254 habeas relief

. Harper v. Brown , 865 F.3d 857, 861 (7th Cir. 2017). Without Carol’s statements of spousal abuse, Beemer would have made a weak witness for the defense. It is not unreasonable to conclude that her residual testimony about the phone calls she made to domestic

- viol ence shelters would no t have had much impact o n this trial without its under lying foundation . Considering the mountain of ev idence pointing to Bryant’s guilt, the state appellate court’s materiality ruling was well within the bounds of reason.16 No. 15

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C. Cumulative E rror After resolving each of Bryant’s indi vidual claims of error against him, t he state court summari ly rejected his argu ment about cumulative error. W e do likewise.
A F FIRMED

.