Julio MENDIOLA, Petitioner-Appellant, v. James M. SCHOMIG, Warden, Pontiac Correctional Center, Respondent-Appellee, 224 F.3d 589

EASTERBROOK, Circuit Judge. During the wake for a member of the Latin Kings street gang, four non-members drove by. Incensed, gang members standing outside the funeral home opened fire on the car, which sped away. Within a block the car crashed into other vehicles. Three of the four occupants made it to safety on foot. Manuel Gutierrez, the fourth, did not. As a mob beat Gutierrez, one assailant shot Gutierrez six times, killing him. A jury concluded that Julio Men-diola fired the fatal bullets, and he was sentenced to 50 years’ imprisonment for first-degree murder.

His conviction was affirmed by the state’s appellate court, and a federal judge denied his petition for collateral relief. 1998 WL 748276, 1998 U.S. Dist. Lexis 16995 (N.D.Ill. Oct. 21, 1998). Mendiola’s sole contention on this appeal is that the prosecutor withheld material exculpatory evidence, violating the due process clause of the fourteenth amendment. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Eyewitness testimony supplied the basis of the conviction. Francisco Carabez identified Mendiola as the shooter.

Immediately after the murder, Carabez and his friend Angelo Torres went looking for the killer. Carabez described the shooter’s appearance and clothing to Torres, and when the two found Mendiola within a block of the crime Carabez unhesitatingly identified him to Torres based on his clothing as well as his visage. Carabez later identified Mendiola in a photo spread, a lineup, and the courtroom. Torres corroborated Carabez’s description of the events immediately after the murder.

Mendiola’s defense was an alibi (that he had been drinking beer with two friends in a car some distance from the murder); one of the supposed drinking companions verified this story; several witnesses testified that Mendiola was not the shooter; Mendiola himself testified that he had nothing to do with the killing or, for that matter, the Latin Kings.

This defense was undercut by a police officer’s testimony that the tattoo of a crown on Mendio-la’s back is the insignia of the Latin Kings, that the officer had observed Mendiola associate with other gang members and use the gang’s slogans and gestures, that in a booking photograph Mendiola posed using a hand gesture employed by the Latin Kings, and that soon after being arrested Mendiola had given accounts of his whereabouts that conflicted with the alibi offered at trial. Another officer testified that, when arrested, Mendiola had admitted membership in the Latin Kings.

Some if not all of the witnesses who testified on Mendiola’s behalf had links to that gang, and the prosecutor argued that their testimony should be discounted accordingly- Although the murder took place in daylight on a busy street, police and prosecutors had difficulty finding people willing to cooperate. Only one witness to the attack other than Carabez testified for the prosecution, and that witness, Maria Balderra-ma, was unable (or unwilling) to identify the shooter. Balderrama, who was 12 at the time of the shooting and trial, testified that she had been playing on the street when the affray erupted.

She corroborated Carabez’s description of the attempted escape, the mob descending on Gutierrez, the beating, and the murder. But when asked for identifying details, all Balderra-ma would say was that the shooter was “not that tall and not that short,” and “not that fat and not that skinny.” She viewed a lineup but did not identify anyone. She did not recall what the slayer was wearing. On cross examination, Balderrama stated that she did not get a good look at the killer and did not see his face.

The detective who conducted the lineup testified that Balderrama had appeared to be very scared and hesitated even to view the lineup until she was assured that the people in the lineup could not see her — an assurance that obviously did not apply to the trial. On the day of sentencing, Mendiola filed a motion for a new trial. The principal support for that motion was the transcript of a statement that Balderrama made to Mendiola’s lawyer, in his office, two weeks after the trial.

Balderrama told counsel in response to leading questions that, during her time on the stand, she came to believe that Mendiola was not the shooter. According to her statement, after the completion of her testimony she expressed this opinion to one of the two prosecutors, who asked her not to tell Mendiola’s lawyer. It is uncontested that the state never informed defense counsel that Balderrama wanted to change her testimony from an agnostic position to one favoring Mendiola.

Failure to convey that information, Mendi-ola insisted, violated the prosecution’s obligation under the due process clause to disclose material exculpatory information. The trial judge denied Mendiola’s request for a new trial and also declined to hold an evidentiary hearing to learn whether Balderrama would repeat in court the statements made in defense counsel’s office. The judge concluded that, no matter what Balderrama later said, she had not exculpated Mendiola immediately after leaving the stand, and that, as a result, the prosecution had not violated its constitutional obligation.

In an unpublished opinion, the court of appeals observed that it, too, was entitled to draw inferences from the record, and it agreed with the trial judge that “the content of Maria Balderra-ma’s post-trial statement regarding the conduct of the assistant State’s Attorneys in this case [is] highly incredible.” Then the appellate court added that, even if Balderrama’s post-trial statement were true, her change of mind would not have been material exculpatory evidence, because Balderrama had denied seeing the shooter’s face.

When denying Mendiola’s petition, the district court concluded that the state court’s decision on the materiality issue did not represent an unreasonable application of clearly established federal law, see 28 U.S.C. § 2254(d)(1), making-federal collateral relief unavailable. If Balderrama told the prosecutor that she was confident that Mendiola did not shoot Gutierrez, then the critical question is whether “there is a reasonable probability” that this information would have altered the outcome of the trial. Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); Kyles v.

Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Although this sounds like a demand for quantification, Stridden and Kyles say that the inquiry is subjective: “[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434, 115 S.Ct. 1555, reiterated by Strickler, 527 U.S. at 289-90, 119 S.Ct. 1936.

When the constitutional standard is flexible, and the state court takes the rule seriously and produces an answer within the range of defensible positions, § 2254(d)(1) requires the federal court to deny the petition. “[W]hen the constitutional question is a matter of degree, rather than of concrete entitlements, a ‘reasonable’ decision by the state court must be honored.” Lindh v. Murphy, 96 F.3d 856, 871 (7th Cir.1996) (en banc), reversed on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). See also Williams v. Taylor, — U.S. -, 120 S.Ct. 1495, 1518-23, 146 L.Ed.2d 389 (2000); Gardner v.

Barnett, 199 F.3d 915 (7th Cir.1999) (en banc); Tenner v. Gilmore, 184 F.3d 608 (7th Cir.1999). That Balderrama had denied under oath seeing the incident clearly enough to make an identification, had disclaimed seeing the shooter’s face and was unable even to describe his body type, means that her testimony did not support his conviction other than by corroborating Carabez’s description of the sequence of events. Her change of mind did not affect this aspect of her testimony, the only one that mattered.

Yet it cannot be gainsaid that Mendiola would have been helped by support from Balderrama, for the prosecutor could not have responded that she was affiliated with the Latin Kings — although the prosecutor would have emphasized the incompatibility between Balderrama’s new position and her earlier professed inability to see details about the shooter’s appearance. Because arguments can be made both ways, it is hard to call the state court’s resolution unreasonable, in the objective sense adopted by the Supreme Court in Williams.

But we need not rest on that ground, because both the trial court and the state appellate court found that Balderrama did not tell the prosecutor that she had come to believe that Mendiola did not shoot Gutierrez. The appellate court’s statement — that “the content of Maria Balderrama’s post-trial statement regarding the conduct of the assistant State’s Attorneys in this case [is] highly incredible”— was not, as Mendiola would have it, a throw-away line. It was an independent ground of decision, offered only after the court observed that it had an independent right to draw inferences from the record.

Under federal law, that finding of fact is dispositive. In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Mendiola has not established by “clear and convincing evidence” that Balderrama’s post-trial statement, effectively a partial recantation of her trial testimony, must be preferred to the testimony given under oath. Mendiola has not seriously tried to do this; he has no evidence other than Balderrama’s statement. Instead his principal contention is that conclusions reached by state judges in the absence of an evidentiary hearing are not “really” findings of fact and fall outside § 2254(e).

The foundation of Mendiola’s position — that only trial judges may make factual findings, and then only after hearings dedicated to the contested issue — is unsound. Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), holds that state appellate courts’ findings are entitled to the same respect that trial judges’ findings receive. What is more, § 2254(e)(1) does not require findings to be based on evidentiary hearings. This is a major difference between § 2254(e), part of the Antiterrorism and Effective Death Penalty Act of 1996, and its predecessor 28 U.S.C.(1994 ed.) § 2254(d).

The former statute required deference to “a determination after a hearing on the merits of a factual issue” unless one of eight conditions was satisfied.

Section 2254(e), by contrast, omits any mention of a hearing. If a state court’s finding rests on thin air, the petitioner will have little difficulty satisfying the standards for relief under § 2254. But if the state court’s finding is supported by the record, even though not by a “hearing on the merits of [the] factual issue”, then it is presumed to be correct. Plenty of support for the finding is apparent in this record. The trial judge heard Balderrama’s testimony at trial, which supplied ample basis for the judge to disbelieve a later inconsistent story. See United States v.

Provost, 969 F.2d 617, 619-20 (8th Cir.1992). Cf. United States v. Stewart, 198 F.3d 984 (7th Cir.1999) (statements made under oath when pleading guilty are conclusive, and the judge may reject without a hearing a defendant’s later contention that his sworn statements were untrue). Balderrama’s statement to Mendiola’s lawyer made little sense. Why would she testify as she did and then sing a different song immediately after leaving the stand? The trial judge observed not only Balderrama but also the prosecutors.

In response to Mendiola’s post-trial motion, both prosecutors denied that Balder-rama had told them that she had concluded that Mendiola did not shoot Gutierrez. Neither prosecutor testified under oath (and one relayed his recollections by hearsay through the other), but both had repu-tational interests in telling the truth. When dealing with contentions that prosecutors have exercised peremptory challenges improperly, judges are entitled to credit prosecutors’ explanations without placing them under oath. Purkett v. Elem, 514 U.S. 765, 115 S.Ct. 1769, 181 L.Ed.2d 884 (1995); Hernandez v.

New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). We see no greater reason why a formal hearing is required when the subject is what a witness told a prosecutor. If Balderrama’s posttrial statement is correct, then two prosecutors put their law licenses and careers in jeopardy for no good reason; the trial judge (and the state’s appellate court) were entitled to think it more plausible that Balder-rama did not recant until the post-trial interview with Mendiola’s lawyer.

Disbelief of recantations is sensible— and not just because the formality of a court, the presence of the litigants, and the gaze of a judge induce witnesses to hew more closely to the truth than they do when speaking in private and attempting to appease the losing side’s advocate. Disbelief is reasonable because it protects witnesses after trial, and thus promotes truthful testimony during trial. See Hysler v. Florida, 315 U.S. 411, 422, 62 S.Ct. 688, 86 L.Ed. 932 (1942).

Some witnesses fall prey to influences — perhaps the persuasive influence of a skilled advocate asking leading questions, perhaps the less wholesome influence of the defendant’s friends. See Charles Alan Wright, 3 Federal Practice and Procedure § 557.1 (2d ed.1982). Both may have been at work with Balderrama. People fear the Latin Kings for a reason. By disbelieving recantations, judges protect witnesses such as Balderrama. Knowledge that obtaining a recantation will not affect the outcome of the trial makes it less likely that defendants and their friends will hound witnesses after trial.

Witnesses who are nonetheless pursued may protect themselves by telling defendants’ friends (and lawyers) what they want to hear, knowing that recantation will not jeopardize an accurate verdict already delivered. Four state judges (one trial judge, three appellate judges) chose to believe Balder-rama on the witness stand over Balderra-ma in the office of Mendiola’s lawyer, and to believe two members of the bar rather than to credit a recantation by a fearful witness. That decision has not been undercut by clear and convincing evidence, so the judgment of the district court is AFFIRMED.