Bailey v. Lemke, 2013 U.S. App. LEXIS 23126

Background

In May 1987 a gang shooting left Anthony Jackson dead and two others wounded; Hernandez Bailey ("Bailey") was charged with murder and attempted murder as an aider/abettor who allegedly told co-defendant Darryl Moten to "shoot."
Bailey waived a jury; his trial attorney, William Swano, did not file a pretrial discovery motion and thus did not receive a John Doe grand jury transcript before one eyewitness (Brandon Adams) completed live testimony.
During trial another witness (Michael Thompson) initially implicated Bailey, then recanted; a John Doe grand jury transcript later showed Adams had not mentioned Bailey’s presence or any order to shoot in his grand jury testimony.
Because the transcript was obtained only after Adams finished testifying, defense counsel agreed to stipulations reciting that Adams hadn’t mentioned Bailey in post‑lineup interview or in the grand jury; the trial court credited Adams’s in‑court testimony and convicted Bailey.
State post‑conviction proceedings and the Illinois Appellate Court found counsel’s failure to move for discovery fell below professional norms but held Bailey failed to show a reasonable probability the outcome would have differed (Strickland prejudice). Illinois Supreme Court denied leave; U.S. Supreme Court denied cert.; Bailey sought federal habeas relief under 28 U.S.C. § 2254.
The district court denied relief; the Seventh Circuit affirmed, holding the state court reasonably applied Strickland and did not unreasonably determine the facts.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel’s failure to move for discovery was constitutionally ineffective	Bailey: Swano’s failure to file discovery fell below Strickland standards and deprived Bailey of impeachment evidence (Adams’s grand jury testimony)	State: Failure was deficient but not prejudicial; stipulations and other evidence minimized transcript’s value	Court: Counsel’s omission was deficient but petitioner failed to show Strickland prejudice
Standard applied by Illinois Appellate Court under Strickland	Bailey: Appellate court required a certainty of different outcome rather than a reasonable probability	State: Appellate court applied correct Strickland standard (reasonable probability)	Court: Appellate court applied proper Strickland prejudice test
Whether the omitted grand jury testimony created a reasonable probability of a different result	Bailey: A factfinder could infer the prosecutor’s questions show Adams didn’t know, making the omission material impeachment	State: The transcript added no more than stipulations; Thompson’s prior statements still strongly tied Bailey to the crime	Court: Objective review shows transcript had no meaningful additional probative value; no reasonable probability of different outcome
Whether the state court’s factual finding was unreasonable under § 2254(d)(2)	Bailey: The appellate court unreasonably determined facts by ignoring plausible inferences from the grand jury transcript	State: State factual findings are presumptively correct; Bailey failed to rebut by clear and convincing evidence	Court: Bailey failed to overcome § 2254(d)(2) presumption; factual determination was reasonable

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (benchmarks for ineffective assistance: performance and prejudice)
Harrington v. Richter, 562 U.S. 86 (2011) (high deference to state-court decisions on federal claims)
Cullen v. Pinholster, 563 U.S. 170 (2011) (limits on federal review of state-court record in habeas)
Kyles v. Whitley, 514 U.S. 419 (1995) (Brady materiality and reasonable probability standard)
Brady v. Maryland, 373 U.S. 83 (1963) (prosecutorial duty to disclose exculpatory evidence)
United States v. Bagley, 473 U.S. 667 (1985) (materiality standard for undisclosed evidence affecting outcome)
Woolley v. Rednour, 702 F.3d 411 (7th Cir. 2012) (reviewing state-court Strickland determinations on habeas)