THOMAS YANCEY,
Petitioner-Appellant, v. JERRY D. GILMORE, Respondent-Appellee.
No. 96-1977
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
113 F.3d 104; 1997
PRIOR HISTORY: [**1] Appeal from
the
DISPOSITION: Affirmed.
COUNSEL: For THOMAS YANCEY, Petitioner - Appellant: Ian Brenson,
For JERRY D. GILMORE, Warden, Respondent - Appellee:
Steven R. Splitt, OFFICE OF THE ATTORNEY GENERAL, Criminal Appeals Division,
JUDGES: Before FLAUM, MANION, and KANNE, Circuit Judges.
OPINIONBY: FLAUM
OPINION: [*105] FLAUM, Circuit
Judge. Thomas Yancey, an
I.
The facts of the case are outlined in Yancey's direct state appeal, People
v. Yancey, 57 Ill. App. 3d 256, 372 N.E.2d 1069, 14 Ill. Dec. 790 (Ill.
App. Ct. 1978). Briefly, the victim, fifteen-year-old William Wilkerson, was
shot in the chest and shown (superficially wounded but alive) by Yancey and his
codefendant, Brown, to two juveniles, Dickens and Parks, in the eleventh-floor
laundry room of a Chicago Housing Authority building. Brown instructed Dickens
and Parks to tie up Wilkerson and stop the elevators between [**2] the eleventh and twelfth floors. Yancey and Brown
dragged Wilkerson toward the elevator shaft, but he struggled so that, rather
than being thrown down the shaft, he was returned to the laundry room. Yancey
and Brown then unsuccessfully attempted to kill Wilkerson by placing a broom
handle over his neck and stepping on it and by strangling him with a stocking.
Wilkerson was eventually killed by one gunshot to the temple and his body
thrown down the elevator shaft, where it was later discovered. Yancey and Brown
were convicted of murdering Wilkerson by a jury after a trial featuring the
testimony of Dickens and Parks. The Appellate Court of Illinois affirmed, and
the Supreme Court of Illinois denied leave to appeal. Later, Yancey filed a
state post-conviction petition, which was dismissed. The appeal from that
dismissal was dismissed for want of prosecution.
In the district court, Yancey filed pro se a petition for a writ of habeas
corpus alleging numerous grounds for relief. On appeal, where he is represented
by counsel, he has narrowed his contentions to two: that during closing
arguments the prosecutor unconstitutionally referred to Yancey's failure to
testify on his own behalf, [**3] and that
Yancey was denied his right to effective cross-examination where the trial
court refused to allow evidence of Dickens's and Parks's criminal histories to
impeach their credibility.
II.
Yancey has preserved both of his claims for federal review. There is no
question that he has exhausted his state remedies. Further, each of these
claims was presented to the Appellate Court of Illinois and the Supreme Court
of Illinois on direct review. Although both Yancey and the state have lost copies
of Yancey's petition for postconviction review, the district court gave Yancey
the benefit of the doubt on the issue of procedural default and reached the
merits of the claims. We believe it immaterial in this case whether Yancey
included these claims in his post-conviction petition: res judicata
would have prevented Yancey from further litigating these claims in the
Under the recently amended § 2254(d), [**4]
Yancey must show that
(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 [*106] facts in light of the evidence presented in the State
court proceeding.
28 U.S.C. § 2254(d) (1996). The amended § 2254(d)
applies to cases pending on the date of its enactment. Lindh v. Murphy,
96 F.3d 856, 867 (7th Cir. 1996) (en banc), cert. granted in part, 117
S. Ct. 726, 136 L. Ed. 2d 643 (1997). As Yancey does not dispute the state
court's factual findings, we discuss only § 2254(d)(1).
A.
Yancey first claims that during closing argument the prosecution
unconstitutionally commented on his decision not to testify on his own behalf.
When Yancey was arrested, he gave two separate inculpatory statements, one to
John Markham, an investigator for the Chicago Police Department, in the
presence of another investigator, and one to
Mr. Yancey's statement is he took William Wilkerson up to the 11th floor and he
participated in the pushing of that body, pushed that body into that elevator
shaft.
You also heard the testimony of
Those statements, the testimony that you have heard from the witness stand, the
testimony of Investigator Markham as to those statements, the fact that they
were made, the testimony that you have heard from Assistant State's Attorney
Harry Wolfson [sic], the fact that Thomas Yancey made that statement to him--He
testified as to what the two defendants told him--and that testimony which you
have heard from that witness stand is unrebutted and uncontradicted.
After the defense's objection was overruled, counsel said, "You are here
to decide a case based upon the testimony you heard from that witness
stand." Yancey asserts that these comments necessarily focused the jury's
attention on Yancey's failure to testify [**6] at
trial.
As a corollary to a defendant's constitutional right to decline to testify in
his own defense, the Supreme Court has held that neither the prosecution nor
the court may invite the jury to infer guilt from the defendant's silence.
Yancey relies heavily on this circuit precedent to support his constitutional
claim, but under the new § 2254(d) it is "clearly established Federal law,
as determined by the Supreme Court of the
The only Supreme Court case that arguably supports Yancey's claim is Griffin,
[*107] which specifically held that "the Fifth Amendment . . .
in its bearing on the States by reason of the Fourteenth Amendment forbids
either comment by the prosecution on the accused's silence or instructions by
the court that such silence is evidence of guilt." 380
Nor can the appellate court's decision [**9] in
Yancey's case be described as an unreasonable application of relevant law. The
"unreasonable application" prong of § 2254(d)(1)
speaks to the state court's handling of mixed questions of law and fact. See
Lindh, 96 F.3d at 870. Here, the
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n1 It is not apparent that Yancey's Fifth Amendment argument would prevail even
under this circuit's caselaw (i.e., under pre-AEDPA standards). Yancey
complains about the prosecutor's characterization of the testimony Markham and
Wilson gave regarding Yancey's inculpatory statements. Yet, because there were
at least two witnesses besides Yancey present during each post-arrest
statement, the prosecutor's reference to that testimony as
"unrebutted" and "uncontradicted" did not necessarily draw
the jury's attention to Yancey's silence. This distinguishes Yancey's case from
the precedent on which he relies, because our cases emphasize that it is the
fact that the defendant is the only one who can rebut or contradict the
testimony that makes the prosecutor's arguments improper. See generally
Freeman, 962 F.2d at 1260 & n.6 (collecting cases).
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B.
Yancey also claims that the trial court violated his Sixth Amendment right to
effective crossexamination (an essential part of the right to confront
witnesses) when it refused to allow him to impeach the credibility of the two
juvenile accomplice witnesses, Dickens and Parks, by introducing evidence of
their criminal histories. Dickens and Parks, who took part in the series of
events culminating in Wilkerson's death, were the main prosecution witnesses.
They also had histories of offenses, including failure to return to a juvenile
detention facility, armed robbery, and burglary. Yancey, 372 N.E.2d at 1071.
Does "clearly established Federal law" entitle a defendant to use a
juvenile witness's criminal history to impeach that witness's general
credibility? In Davis v. Alaska, 415
We do not believe that Yancey's argument is supported by "clearly
established" Supreme Court jurisprudence. Recently, we noted that
"although the Supreme Court has frequently held that states must permit
cross-examination that will undermine a witness's testimony, it has never held--or even suggested--that the longstanding rules
restricting the use of specific instances and extrinsic evidence to impeach a
witness's credibility pose constitutional problems." Hogan v. Hanks,
97 F.3d 189, 191 (7th Cir. 1996) (internal citations omitted), cert. denied,
137 L. Ed. 2d 546, 65 U.S.L.W. 3692, 117
This conclusion holds if we ask whether the state decision was an unreasonable
application of clearly established federal law. When the Appellate Court of Illinois
rendered its decision in 1978, it had only the benefit of
Even were we to disregard the 1996 amendments and evaluate the claim under the
old law, we would be disinclined to grant Yancey relief. Yancey complains that
he was unable to explore Dickens's and Parks's criminal pasts thoroughly, but
in fact he introduced a good deal of evidence about the two juveniles. The
appellate opinion noted, "Andrew Dickens, 17 years old at the time of the
trial, testified that he was then confined at
AFFIRMED. [**15]