Daniel Makiel v. Kim Butler
2015 U.S. App. LEXIS 5875
7th Cir.2015Background
- In 1991 Daniel Makiel was convicted in Illinois state court of the 1988 murder of a gas station manager (Katherine Hoch) and related armed robbery; conviction rested primarily on testimony from co-defendant-turned-state-witness Todd Hlinko and corroborating witnesses.
- At trial the court excluded (1) impeachment evidence about prosecution witness Allen Martin’s pending forgery charge, (2) reputation-impeachment testimony from Brian Spodach about Martin and Shane Miller, and (3) testimony from eleven-year-old Tim Anderson who would have blamed another youth for the killing.
- On direct appeal the Illinois appellate court remanded solely for an inquiry into Anderson’s competency and relevance (holding the trial court had erred in excluding him); the other issues were rejected or split.
- Post-remand evidentiary hearings occurred years later; Anderson completely recanted his earlier proffered statement implicating another youth. Subsequent state proceedings addressed ineffective assistance of appellate counsel for failing to raise the Martin and Spodach evidentiary exclusions.
- Illinois courts ultimately held the exclusion of Martin’s pending forgery charge was error but found appellate counsel not deficient under Strickland; they also held Makiel was not entitled to relief based on Anderson after he recanted. Makiel sought federal habeas relief; the Seventh Circuit affirmed denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate counsel was constitutionally ineffective for not appealing exclusion of Allen Martin’s pending forgery charge | Makiel: failure was obvious and the forgery charge was powerful impeachment that was clearly stronger than issues raised on appeal | State/Makiel IV: appellate counsel reasonably could predict the error would be deemed harmless; counsel made strategic selections and preserved stronger issues | Court: Denied relief — state court reasonably applied Strickland; omission was not “obvious and clearly stronger” given harmless-error risk under Chapman and counsel’s diligent process |
| Whether appellate counsel was ineffective for not appealing exclusion of Brian Spodach’s testimony on witnesses’ reputations | Makiel: exclusion was obvious error under Illinois law and should have been raised on appeal | State: exclusion likely harmless (reputation evidence marginal and other impeachment existed); appellate counsel’s omission not prejudicial | Court: Denied relief — even assuming de novo review, counsel’s choice was within professional norms and issue not clearly stronger; no prejudice shown |
| Whether exclusion of Tim Anderson’s testimony violated Makiel’s Sixth Amendment compulsory process right | Makiel: Anderson’s proffered eyewitness testimony (another youth shot victim) was material and its exclusion deprived him of presenting a full defense | State: after Anderson’s later recantation and lack of corroboration, the testimony was unreliable and not material; considering the full record, exclusion did not violate due process/compulsory process | Court: Denied relief — AEDPA deference applies; state court reasonably concluded Anderson’s later recantation and lack of corroboration rendered the testimony not likely to affect outcome; considering post-trial developments was permissible and reasonable |
| Standard of federal review under AEDPA for these claims | Makiel: some rulings relied on state evidentiary law and therefore require de novo review | State: state courts adjudicated federal claims on the merits so AEDPA deference applies | Court: AEDPA deference applies to most claims (state courts cited federal precedent); where the last state decision did not address every component, limited de novo review applied but did not change outcome |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- Chambers v. Mississippi, 410 U.S. 284 (1973) (right to present favorable third-party confession subject to reliability scrutiny)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA’s deferential standard and Strickland review under §2254(d))
- Chapman v. California, 386 U.S. 18 (1967) (harmless-error standard: conviction stands if error did not contribute to verdict beyond a reasonable doubt)
- Washington v. Texas, 388 U.S. 14 (1967) (Compulsory Process Clause protects the right to present witnesses)
- Smith v. Robbins, 528 U.S. 259 (2000) (appellate counsel not required to raise every nonfrivolous issue; importance of issue selection)
- Delaware v. Van Arsdall, 475 U.S. 673 (1986) (limits on cross-examination for bias are subject to harmless-error analysis)