Keith Lee v. Brian Foster
2014 U.S. App. LEXIS 7970
7th Cir.2014Background
- Lee was convicted of first-degree reckless homicide and two armed robberies in Oshkosh, Wisconsin.
- Johnson identified Lee in court after a photo lineup failed to yield Lee's identification but he stated he could identify him in person.
- Lee was not identified from photos, but testified he would recognize Lee if seen in person.
- Pretrial and trial sequence included Johnson’s in-court identification and the defense table context; Johnson testified regarding events while riding with Thomas and Lee.
- Lee pursued postconviction relief; Wisconsin courts denied on Allen grounds and Escalonar-Naranjo rules; district court denied habeas petition but certified issues for appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Identification procedure due process. | Lee argues Johnson’s in-court ID was impermissibly suggestive. | State contends procedure was not impermissibly suggestive and reliable under Biggers. | No due process violation; identification deemed reliable under Biggers factors. |
| Ineffective assistance of counsel and procedural default. | Lee contends postconviction counsel was ineffective; trial and appellate counsel claims were inadequately presented. | State argues Allen rule provides adequate, independent Wisconsin ground; default barred federal review. | Procedural default; Allen rule adequate and independent; relief denied. |
| Hearsay and Confrontation Clause. | Johnson’s testimony about a post-incident conversation is hearsay and potentially testimonial. | Statement was non-testimonial; Confrontation Clause not violated. | Confrontation Clause does not apply to non-testimonial hearsay; no error. |
Key Cases Cited
- United States v. Recendiz, 557 F.3d 511 (7th Cir. 2009) (identification due process threshold is high; reliability factors examined)
- United States v. Sanders, 708 F.3d 976 (7th Cir. 2013) (identification procedures rarely implicate due process; focus on reliability)
- Neil v. Biggers, 409 U.S. 188 (U.S. 1972) (five-factor test for reliability of identification)
- Perry v. New Hampshire, 565 U.S. 228 (U.S. 2012) (affirmed that due process requires reliability; no special protection for suggestive procedures absent reliability)
- Manson v. Brathwaite, 432 U.S. 98 (U.S. 1977) (identification procedures evaluated for reliability under totality of circumstances)
- Allen v. State, 274 Wis.2d 568 (Wis. 2004) (Allen rule governs sufficiency of allegations for evidentiary hearing; deemed adequate state ground)
- Escalona-Naranjo v. State, 517 N.W.2d 157 (Wis. 1994) (Escalona-Naranjo rule; subsequent postconviction relief barred absent sufficient reason)
- Coleman v. Thompson, 501 U.S. 722 (U.S. 1991) (procedural default and independent state grounds in federal review)
- Harris v. Reed, 489 U.S. 255 (U.S. 1989) (state court must rely on independent, adequate procedural bar)
- Thompkins v. Pfister, 698 F.3d 976 (7th Cir. 2012) (illustrates application of procedural default analysis)