Unreasonable Factual Determination

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7^th Circuit Court of Appeals

Case Name: Anthony D. Lee. Sr. v. Kevin Kirk

Case No.: 18-1005

Officials: FLAUM, EASTERBROOK, and SCUDDER, Circuit Judges.

Focus: Unreasonable Factual Determination

After a bench trial, Anthony Lee was convicted of kidnapping and rape. He is serving sentences that add to 100 years’ imprisonment. The state court judge found that Lee and his friend Burlmon Manley forcibly abducted L.M. about 1 A.M. one day, dragging her into their blue Cadillac while she kicked and screamed. Both Manley and Lee struck and raped L.M. When L.M. resisted, Lee retrieved a pistol from the car’s trunk to make her more cooperative. About 3 A.M. L.M. escaped and ran naked to a nearby house. Police took pictures of L.M.’s bloody face. Lee, the only defense witness, said that L.M. entered the car voluntarily and that he did not touch her sexually—though before trial Lee said that he and L.M. had consensual oral sex. The state judge found that L.M.’s testimony about her ordeal was “very credible” and stated that the pictures showing her injuries, and the testimony of the person who opened the door to L.M., negated the defense of consent. Lee’s convictions were affirmed on direct and collateral review. See People v. Lee, 2016 IL App (1st) 152425 (June 30, 2016).

Our analysis has an additional implication: By deciding the merits without receiving the evidence that Lee sought to have considered, the state judiciary acted unreasonably. Illinois observes that Cullen v. Pinholster, 563 U.S. 170, 180–86 (2011), holds that, when 28 U.S.C. §2254(d)(1) requires a federal court to reject a collateral challenge, the court may not hold an evidentiary hearing and consider evidence not presented to the state judiciary. Illinois wants us to treat this as equivalent to a rule that state courts may insulate their decisions from federal review by refusing to entertain vital evidence. Yet a state court’s refusal to consider evidence can render its decision unreasonable under §2254(d)(2) even when its legal analysis satisfies §2254(d)(1).

Section 2254(d)(2) provides that “a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” lacks the shelter of §2254(d) as a whole. If the affidavits were all Lee had offered to the state judiciary, then its decision may have been a reasonable application of the law to a reasonable determination of the facts. But Lee wanted to introduce more, and the state barred the door. Pinholster concerns the application of §2254(d)(1) to a state court’s legal reasoning; it does not prevent a federal court from finding factual aspects of a state court’s decision unreasonable under §2254(d)(2). See 563 U.S. at 184–85 & n.7. By assuming that the language of the five affidavits would have been the totality of the witnesses’ testimony had they been called at trial, the state made an unreasonable factual determination under §2254(d)(2), which permits a federal evidentiary hearing under §2254(e)(2).

Vacated and Remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.