text:
    Terry C. JOHNSON, Plaintiff-Appellant, v. Abdi TINWALLA, Defendant-Appellee.
    No. 15-3525
    United States Court of Appeals, Seventh Circuit.
    Argued April 12, 2017
    Decided April 28, 2017

      Justin M. Ellis, Attorney, MoloLamken LLP, New York, NY, for Plaintiff-Appellant.
    Douglass Raymond Bitner, Attorney, Cassiday Schade LLP, Springfield, IL, Julie Ann Teuscher, Attorney, Cassiday Schade LLP, Chicago, IL, for Defendant-Appellee.
    Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.
   POSNER, Circuit Judge.

Terry Johnson, the plaintiff, is an inmate of the Rushville Treatment and Detention Facility — “an Illinois state facility for the diagnosis, treatment, and (pending successful treatment) incarceration of persons believed prone to sexual violence.” Hughes v. Scott, 816 F.3d 955, 955 (7th Cir. 2016). The defendant, Dr. Tinwalla, is a psychiatrist, employed by Wexford Health Sources, who works at the Rush-ville facility. The suit charges him with having violated both the plaintiffs constitutional right to due process of law and Illinois law, by causing the plaintiff to take the antipsychotic drug Risperdal (and for more than a month) without the plaintiffs knowledge or consent. The district judge granted summary judgment in favor of the defendant, precipitating this appeal.

In Washington v. Harper, 494 U.S. 210, 229, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), the Supreme Court recognized a “significant liberty interest,” created by the due process clause of the Fourteenth Amendment, in “avoiding the unwanted administration of antipsychotic drugs” — drugs used to treat mental disorders by “altering] the chemical balance in a patient’s brain, leading to changes, intended to be beneficial, in his or her cognitive processes.” Id. at 221, 229, 110 S.Ct. 1028. The Court explained that a person’s “interest in avoiding the unwarranted administration of antipsychotic drugs is not insubstantial. The forcible injection of medication into a nonconsenting person’s body represents a substantial interference with that person’s liberty.” Id. at 229, 110 S.Ct. 1028. One reason is that drugs — including Risperdal — can have “serious, even fatal, side effects.” Id.', see also Drugs.com, “Risperdal,” www.drugs. eom/risperdal.html (visited April 27, 2017). Another reason is that altering a person’s brain functioning against his will is an intrusion on his liberty — an intrusion that could engender fear that the government was trying to brainwash its citizens. But a prisoner’s interest in liberty gives way if the state establishes, by a medical finding, that the prisoner has a mental disorder likely to cause harm to himself or others unless he is treated with an anti-psychotic drug. Washington v. Harper, supra, 494 U.S. at 227, 231, 110 S.Ct. 1028.

In Harper state law required that any antipsychotic medication forced on a prisoner had first to be prescribed by a psychiatrist and then approved by a reviewing committee composed of a psychiatrist, a psychologist, and a prison official, thus ensuring that the treatment would be ordered against the prisoner’s will only if responsibly determined to be necessary given the prisoner’s medical needs and the prison’s legitimate penological interests. Id. at 215, 233, 110 S.Ct. 1028. The district judge in this case noted in addition that 59 Ill. Admin. Code § 299.330 gave the plaintiff a “protected liberty interest against the arbitrary administration of psychotropic medication for those individuals involuntarily committed.”

Dr. Tinwalla prescribed Risperdal for the plaintiff after the latter complained to him of increased irritability and wanting to assault a staff member and feeling hopeless at times; in addition his medical history revealed erratic and aggressive behavior, and we can assume that these complaints and the medical history justified the prescription. At the appointment with Dr. Tinwalla the plaintiff initially signed a form in which he consented to being treated with Risperdal, but he immediately revoked his consent and scratched out his signature on the form. Underneath Dr. Tinwalla wrote that Johnson had “refused consent after signing it.”

Dr. Tinwalla didn’t follow Illinois’s procedure for ordering forced medication. He just wrote the plaintiff a prescription for the drug, explaining later in an affidavit that he had done this so that the plaintiff could take Risperdal if he felt a need to. Yet he failed to tell the plaintiff about the prescription. That failure had consequences, as we’ll see.

The doctor went further and ordered Risperdal “dispensed” to the plaintiff by the nursing staff nightly, even though it is conceded that a basis for compelled administration of antipsychotic drugs (including therefore Risperdal) to the plaintiff did not exist because he had not been found to be dangerous to himself or to others, and so the Harper standard for compelled administration of such drugs as Risperdal was not met. And the doctor did not even tell the plaintiff that he’d ordered Risperdal dispensed to him.

At Rushville medication is dispensed to the inmates by nurses who hand out cups, each marked with an inmate’s name and containing his allotted pills. The nurse who dispensed Risperdal to the plaintiff did not tell him that the little cup of pills she gave him every night for his high blood pressure, high cholesterol, and stomach ailments now included Risperdal or any other psychotropic drug. And even if the plaintiff noticed an extra pill, it was unmarked and therefore he had no reason to think it treated a condition unrelated to the medical problems that he knew he was taking pills for. Even the nurse who dispensed pills to him didn’t know what the new pill was.

So the plaintiff, having refused to take Risperdal as was his constitutional and statutory right in the circumstances, ended up as a result of Dr. Tinwalla’s handling of the matter taking the drug without knowing or having any reason to know he was doing so and without having consented to take Risperdal. The statement in the defendant’s brief that the plaintiffs “right to refuse medication was never denied” is empty, as the plaintiff was unaware that he was taking the medication, which he had refused. Dr. Tinwalla points out that the plaintiff could have asked the nurse what the new pill was, but having refused to consent to take Risperdal the plaintiff had no reason to think it would be smuggled without identification into his nightly cup of pills. And anyway the nurse’s reply to such a question might just have been: “I don’t know.”

We mentioned the Illinois law, which Dr. Tinwalla probably also violated. It parallels the standard set forth in the Harper decision, ordaining as it does that psychotropic medication “shall not be administered to any resident [involuntarily committed pursuant to the Sexually Violent Persons Commitment Act] against his or her will ... unless ... [a] psychiatrist [or other physician] determine^] that the resident [is mentally ill] and the medication is in the medical interest of the resident; and the resident is either gravely disabled or poses a likelihood of serious harm to self or others.” 59 Ill. Admin. Code § 299.300(d)(1)(A)(i). The district judge, ignoring the Code, thought it critical that Dr. Tinwalla had not ordered that the plaintiff be forced by staff to ingest the Risperdal that the staff provided to him at the doctor’s direction; for that meant, the judge said, that “at worst [Tinwalla] metaphorically unlocked the doors to the medicine cabinet and left the room.” We don’t know what this means, but what we do know is that by placing an unmarked Ris-perdal pill in the plaintiffs pill cup every night the nurse on duty was unwittingly causing him to take Risperdal against his will, just as if he’d been physically forced to. And she was doing this without knowing the pill was Risperdal — not knowing because Dr. Tinwalla hadn’t told her, as he should have done to give the plaintiff a chance to refuse to take it, as was his right and not just his desire.

Nor is this a case merely of negligence on the part of the defendant. Compare Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). A jury could reasonably conclude that Dr. Tinwalla had been deliberately indifferent to the plaintiffs right to refuse Risperdal. See Pabon v. Wright, 459 F.3d 241, 250-51 (2d Cir. 2006). It could infer that Dr. Tinwalla, no stranger to Rushville, must have known that pills were delivered to the inmates, unlabeled, in little cups. And at the time he wrote the prescription Dr. Tinwalla had recently reviewed the plaintiffs medical records, so he must have known that the plaintiff also received several other pills three times a day. The district judge had no basis for concluding as she did (it was the basis for her grant of summary judgment in favor of the defendant) that at worst Dr. Tinwalla’s failure to notify the plaintiff of the prescription “may have been negligent.” A jury could reasonably find that failure to have constituted deliberate indifference.

A reasonable jury could also conclude that Dr. Tinwalla had committed the common law tort of medical battery, which the plaintiff charged in his complaint and under Illinois law requires only that the defendant have committed an intentional, unconsented-to act resulting in offensive contact with the plaintiffs body. Sekerez v. Rush University Medical Center, 352 Ill. Dec. 523, 954 N.E.2d 383, 394 (2011). True, Dr. Tinwalla didn’t touch the plaintiff, but “an ‘offensive contact’ may be established by proof that the defendant intended to cause the plaintiff, directly or indirectly, to come into contact with a foreign substance in a manner which the plaintiff would reasonably regard as offensive.” Id. That seems an exact description of this case, but was ignored by the district judge.

It remains to note that the plaintiff had no lawyer in the district court. Given the medical issues presented by the case, it would have been a proper case for the district judge to have recruited a lawyer for the plaintiff. Rushville is only a four-hour drive from Chicago, a city crawling with large law firms likely to respond positively to a request by a federal judge to provide a junior lawyer to represent an indigent plaintiff. The firm and the junior lawyer would benefit from the experience obtained by the lawyer in what might well have been his first trial.

To conclude, the district judge erred in granting summary judgment in favor of the defendant, and the judgment therefore is reversed and the case remanded for proceedings consistent with the analysis in this opinion.


source: Caselaw Access Project

author: FLAUM, Circuit Judge.

license: Public Domain

text:
    Gilbert SPILLER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 15-2889
    United States Court of Appeals, Seventh Circuit.
    Argued April 5, 2017
    Decided April 28, 2017

      Rachel A. Graham, Marisa L. Berlinger, Attorneys, QUARLES & BRADY LLP, Madison, WI, Edward King Poor, Attorney, QUARLES & BRADY LLP, Chicago, IL, for Petitioner-Appellant.
    Stuart D. Fullerton, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Respondent-Appellee.
    Before WOOD, Chief Judge, and FLAUM and HAMILTON, Circuit Judges.
   FLAUM, Circuit Judge.

Gilbert Spiller pled guilty to drug and firearm charges. He later filed a petition under 28 U.S.C. § 2255, arguing that his counsel was constitutionally ineffective during the plea-bargaining process. The district court denied Spiller’s petition without holding an evidentiary hearing. We affirm.

I. Background

On July 13 and 21, 2011, Gilbert Spiller sold a total of 121 grams of crack cocaine for $5,000 to an undercover confidential informant. Spiller later sold a loaded .40 caliber handgun for $500 to the same informant, whom Spiller knew to be a felon who planned to use the gun to protect his drug operation from rival gang members. The government proceeded to charge Spiller with two counts of distributing a controlled substance, in violation of 21 U.S.C. § 841(a)(1) (“Counts One and Two”), and one count of selling a firearm to a felon, in violation of 18 U.S.C. § 922(d)(1) (“Count Three”). The government also filed a notice, pursuant to 21 U.S.C. § 851, that it would seek an enhanced mandatory minimum sentence based on Spiller’s three pri- or drug felonies.

On July 30, 2012, the government sent Spiller’s counsel a proposed plea agreement, under which Spiller would plead guilty to Count One and acknowledge that the conduct underlying Counts Two and Three was relevant for sentencing purposes, pursuant to U.S.S.G. § 1B1.3. Under the proposed agreement, Spiller would also stipulate to the government’s Guidelines calculation, including a “career offender” enhancement pursuant to § 4B1.1.

Defense counsel responded to the government’s proposal on August 8 with the following inquiry:

Mr. Spiller has asked a great question and one that I cannot seem to answer for him: what exactly does he gain if he proceeds by plea agreement, as opposed to a blind plea.[] Is the government withdrawing the 851? Can you tell me one concession the government makes in the draft plea you sent over? I want to make sure I am not missing something.

That same day, the government responded, in relevant part:

The government is not withdrawing the 851 notice. You ask a good question, and I admit that the plea agreement does not offer a whole lot beyond a blind plea.
There are a few minor benefits: we would dismiss two counts so he would save himself $200 in special assessments. He also gets the recognition in the plea agreement that, as things currently stand, he is entitled to acceptance of responsibility....

Spiller rejected the government’s proposed plea agreement and, instead, executed a blind plea. In relevant part, Spiller pled guilty to all three counts and “expressly reserve[d] the right to disagree with the government’s guidelines calculation.”

At Spiller’s sentencing hearing on February 27, 2013, the parties did not dispute that Spiller’s Guidelines range was 262 to 327 months’ imprisonment — accounting for Spiller’s conduct, his status as a career offender, and his acceptance of responsibility. While the government sought a sentence within the Guidelines range, however, defense counsel sought the 120-month mandatory minimum, highlighting the well-known crack-cocaine disparity and Spiller’s troubled up-bringing. Ultimately, the district court sentenced Spiller to 240 months’ imprisonment, and we affirmed on appeal. United States v. Spiller, 732 F.3d 767 (7th Cir. 2013).

On October 6, 2014, Spiller filed a pro se petition under 28 U.S.C. § 2255, contending, in relevant part, that his attorney had been constitutionally ineffective by counseling him to execute a blind plea rather than the government’s proposed plea agreement. The district court denied Spiller’s petition, without holding an evidentia-ry hearing, and denied him a certificate of appealability. We granted it, however, and this appeal followed.

II. Discussion

“When reviewing the denial of a federal prisoner’s § 2255 petition, we review the district court’s legal conclusions de novo, its factual findings for clear error, and its decision to forgo holding an eviden-tiary hearing for abuse of discretion.” Martin v. United States, 789 F.3d 703, 705-06 (7th Cir. 2015) (citing Osagiede v. United States, 543 F.3d 399, 408 (7th Cir. 2008)). “The district court’s decision must strike us as fundamentally wrong for an abuse of discretion to occur.” Williams v. Chi. Bd. of Educ., 155 F.3d 853, 857 (7th Cir. 1998) (citation omitted).

Spiller argues that the district court abused its discretion by denying his petition without holding an evidentiary hearing. “The petitioner’s burden for receiving an evidentiary hearing is relatively light....” Torres-Chavez v. United States, 828 F.3d 582, 586 (7th Cir. 2016) (citation omitted). A district court must grant a hearing if the petitioner alleges facts that, if proven, would entitle him to relief. Martin, 789 F.3d at 706 (citation omitted). “It is well-established,” however, “that a district court need not grant an evidentiary hearing in all § 2255 cases.” Id. For instance, a hearing is not required if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). Additionally, if the record contains sufficient facts to explain counsel’s actions as “tactical,” generally no hearing is required. See Osagiede, 543 F.3d at 408 (citation omitted). Finally, a hearing is unnecessary if the petitioner makes allegations that are “vague, conclusory, or palpably incredible,” rather than “detailed and specific.” Martin, 789 F.3d at 706 (quoting Kafo v. United States, 467 F.3d 1063, 1067 (7th Cir. 2006)).

Spiller alleged below that his lawyer was constitutionally ineffective for failing to investigate the facts and law relevant to his case, and for giving “deficient” advice regarding his plea options. The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This right extends to the plea-bargaining process. Martin, 789 F.3d at 706 (citing Lafler v. Cooper, 566 U.S. 156, 162, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)); see also Missouri v. Frye, 566 U.S. 133, 140-42, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). To demonstrate that his lawyer was constitutionally ineffective, Spiller must “satisfy the familiar two-prong test set forth in Strickland v. Washington.” Makiel v. Butler, 782 F.3d 882, 897 (7th Cir. 2015) (citing Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). First, Spiller must show that his counsel’s performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052. Second, he must show that counsel’s deficient performance prejudiced the defense, which means there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 691-92, 694, 104 S.Ct. 2052. “When applying Strickland to the facts of a particular case, ‘there is no reason for a court ... to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.’” McDaniel v. Polley, 847 F.3d 887, 893 (7th Cir. 2017) (quoting Strickland, 466 U.S. at 697, 104 S.Ct. 2052) (alteration in original).

Here, we need go no further than Strickland’s performance prong. In the plea-bargaining context, “we have noted that a reasonably competent lawyer will attempt to learn all of the relevant facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis to the client before allowing the client to plead guilty.” Bethel v. United States, 458 F.3d 711, 717 (7th Cir. 2006) (citing cases). The record, taken as a whole, demonstrates that Spiller’s counsel did just that.

First, as reflected in her inquiry to the government, defense counsel discussed the proposed plea agreement with Spiller. His attorney then considered the government’s proposal and emails and determined that Spiller would be better off pleading blindly. According to Spiller’s affidavit, which he attached to his petition, his lawyer recommended that he execute a blind plea declaration, explaining to him that he would “get a better sentence with pleading blindly” and that a blind plea would “get [him] a better deal [and] is more favorable than the government’s offer.” The resulting plea declaration distinguishes this case from others where attorneys have advised clients to not plead guilty. In those instances, there may be a natural gap in the record: The attorney recommends that the client reject the government’s offer, and the client proceeds to trial. Here, Spiller did plead guilty, and his counsel drafted an eleven-page plea declaration illustrating her and Spiller’s understanding of the relevant facts and law underlying the case. Indeed, the signed agreement states, in relevant part:

Defendant GILBERT SPILLER, after extensive consultation with his attorney, ... acknowledges and states the following: ... Mr. Spiller has read the charges against him contained in the indictment, and those charges have been fully explained to him by his attorney. Mr. Spiller fully understands the nature and elements of the crimes with which he has been charged.... Mr. Spiller agrees that this Plea Declaration shall be filed and become part of the record of the case.... Mr. Spiller further acknowledges that he has read this Plea Declaration and carefully reviewed each provision with his attorney.

When assessed in its entirety, the record conclusively shows that defense counsel discussed with Spiller his case and plea options and advised him accordingly. This is constitutionally sufficient. Consequently, the district court did not abuse its discretion by concluding, without an evidentiary hearing, that Spiller was not entitled to relief.

Spiller stresses the lack of evidence that his attorney investigated the differences between the two plea options, arguing that the district court simply presumed that defense counsel’s decision was tactical. Again, however, the record shows otherwise. Contrary to Spiller’s assertion, counsel’s email to the government evidences the very research he complains was lacking: His attorney reviewed Spiller’s plea options, specifically inquired of the government whether there were differences, examined the government’s response, and suggested that Spiller plead blindly. Further, the government conceded to Spiller’s lawyer that its proposal did not “offer a whole lot beyond a blind plea.” So, according to Spiller’s signed plea declaration and affidavit, defense counsel reserved Spiller’s right to challenge the government’s Guidelines calculation — a right he otherwise would have sacrificed under the government’s proposal — and believed that she could secure him a “better sentence.” In all, the record was sufficient to explain counsel’s decision as strategic, thereby eliminating the need for an evidentiary hearing. See Osagiede, 543 F.3d at 408 (citation omitted).

Spiller takes issue with his attorney’s strategy for two reasons — neither of which is convincing. First, he relies on Toro v. Fairman, 940 F.2d 1065 (7th Cir. 1991), in questioning whether it was reasonable for defense counsel to believe that challenging the government’s Guidelines calculation would have been successful. In Toro, however, “counsel admitted that the decision to proceed to trial was not so much a rational, professional judgment, but an emotional one.” Id. at 1068. Not so here: Spiller’s lawyer believed she could secure her client a better sentence and reserved certain arguments to do just that. This sounds in strategy rather than in emotion, and a “strategic decision, even if clearly wrong in retrospect, cannot support a claim that counsel’s conduct was deficient,” United States v. Yancey, 827 F.2d 83, 90 (7th Cir. 1987) (citing Strickland, 466 U.S. at 689-91, 104 S.Ct. 2052). Second, Spiller highlights that defense counsel did not, in fact, end up challenging the government’s calculation; but he does not point to any authority for the proposition that an attorney must adhere to an initial decision throughout a case for that decision to qualify as tactical. Rather, we analyze whether that attorney’s decision is strategic at the time she makes it. Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”). This is especially so in the plea-bargaining context. See Bethel, 458 F.3d at 717 (highlighting “the many uncertainties surrounding the difficult decision of whether to plead guilty” (citing McMann v. Richardson, 397 U.S. 759, 769-70, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970))).

Lastly, Spiller’s reliance on Moore v. Bryant, 348 F.3d 238 (7th Cir. 2003), and Jones v. Calloway, 842 F.3d 454 (7th Cir. 2016), is misplaced. In Moore, we focused on “inaccurate advice,” such as advice that “goodtime credits could severely lengthen [a] sentence if [the client] proceeded to trial and lost.” 348 F.3d at 241-42. Here, Spiller’s only argument resembling a claim of inaccurate advice was that defense counsel informed him that he would receive a more favorable sentence if he pled blindly. We have clarified, though, that “[a]n inaccurate prediction of a sentence alone is not enough to meet the [Strickland] standard.” Bethel, 458 F.3d at 717 (citations omitted). Additionally, in Jones, we held that the trial court had misapplied Strickland in finding that a defense attorney’s failure to call a particular witness constituted a strategic decision, in part because “the state appellate court had no basis in the record to classify counsel’s failure to .call [the witness] as a strategic trial choice.” 842 F.3d at 464. Here, however, the district court did have a sufficient basis in the record to characterize counsel’s decision as strategic: Her email, Spiller’s affidavit, the government’s proposed plea agreement, and Spiller’s Plea Declaration, taken together, obviated the need for an evidentia-ry hearing.

III. Conclusion

For the foregoing reasons, we Affirm the judgment of the district court.

      . A "blind plea” is a "guilty plea made without the promise of a concession from either the judge or the prosecutor.” Blind. Plea, Black's Law Dictionary (10th ed. 2014).

        . At the outset, the district court concluded that the government's proposed plea agreement was not a formal plea offer, but merely a draft agreement, as it did not have a "fixed expiration date.” Thus, concluded the district court, all of Spiller’s arguments regarding his counsel's ineffective assistance at the plea-bargaining stage were inapposite. The court then addressed the merits of Spiller's ineffective-assistance claim, however, and determined that defense counsel’s performance was not deficient and did not prejudice him. Spiller stresses that there is no "fixed expiration date” requirement, making the district court’s initial ruling a legal error that warrants remand. Even assuming this ruling was incorrect, it constitutes harmless error in light of the court's subsequent rulings on the merits. See Citizens for Appropriate Rural Roads v. Foxx, 815 F.3d 1068, 1079 (7th Cir. 2016) (“An error is harmless if it does not affect a party’s substantial rights.”) (citation omitted).


author: HAMILTON, Circuit Judge.

text:
    Triandus TABB, Petitioner-Appellant, v. Tim CHRISTIANSON, Respondent-Appellee.
    No. 16-1826
    United States Court of Appeals, Seventh Circuit.
    Argued January 18, 2017
    Decided April 28, 2017
    Rehearing and Rehearing En Banc Denied May 31, 2017

      Steven J. Reynolds, Stanley J. Adelman, Attorneys, DLA PIPER US LLP, Chicago, IL, for Petitioner-Appellant.
    Erin O’Connell, Attorney, OFFICE OF THE ATTORNEY GENERAL, for Respondent-Appellee.
    Before WOOD, Chief Judge, and POSNER and HAMILTON, Circuit Judges.

       Judges Joel M. Flaum and Ann C. Williams took no part in the consideration of the petition for rehearing or reheraing en banc.

   HAMILTON, Circuit Judge.

On September 6, 2003, at 1:20 p.m., Salvador Gomez stopped his car at a red light at a Chicago intersection. Through the driver-side window, a man approached and tried to steal his car. When Mr. Gómez would not yield, the attacker shot him three times. Mr. Gomez survived. He later identified petitioner Triandus Tabb as the shooter. Tabb was convicted in Illinois state court of attempted first-degree murder, aggravated battery with a firearm, and attempted aggravated vehicular hijacking. At trial, the crux of the State’s evidence was the victim’s identification of Tabb. Over the long course of state and federal court proceedings in his case, Tabb finished his prison sentence but is still under mandatory supervised release. He now appeals the denial of his habeas corpus petition challenging his conviction.

The focus of Tabb’s federal habeas claims is the reliability of Mr. Gomez’s identification of Tabb as the shooter. We have warned that “it is vital that evidence about how photo spreads, showups, and lineups are conducted be provided to defense counsel and the court.” Newsome v. McCabe, 319 F.3d 301, 305 (7th Cir. 2003). That is because “recollection is suggestible.” Id. “Once the witness decides that ‘X is it’ the view may be unshakable.” Id. Recent psychological research challenges “the lay intuition that confident memories of salient experiences ... are accurate.” Id., quoting Krist v. Eli Lilly & Co., 897 F.2d 293, 296 (7th Cir. 1990) (alteration in original). At the same time, jurors “tend to think that -witnesses’ memories are reliable,” and “this gap between the actual error rate and the jurors’ heavy reliance on eyewitness testimony sets the stage for erroneous convictions.” Id.

Tabb has presented evidence calling into question the objectivity of the lineup procedures in which he was identified and the ensuing validity of the witness identifications' of him at trial. He has argued that evidence about how the lineup was conducted was kept from the defense and then destroyed. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (suppression of material evidence favorable to the accused, when requested by defense, violates due process); Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) (holding that the prosecution’s destruction of material exculpatory evidence is a due process violation). Tabb has not shown, however, that he is entitled to relief from his conviction. We affirm the district court’s denial of his motion for summary judgment and its subsequent dismissal of Tabb’s habeas petition. To explain, we first review the factual and procedural history, and we then examine Tabb’s claims under Brady and then Youngblood.

I. Factual and Procedural History

In federal habeas corpus proceedings, we accept as true the factual findings of state courts unless they are rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Hall v. Zenk, 692 F.3d 793, 805 (7th Cir. 2012). We offer a review of the fourteen-year history of Tabb’s case.

A. Tabb’s Trial and Direct Appeal

On the day of the shooting, September 6, 2003, petitioner Tabb, Norman Brown, and Isaac Pittard all resided at the Department of Children and Family Services Daniel J. Nellum Group Home in Chicago and were ostensibly members of the Blackstone street gang. People v. Tabb (Tabb II), 2013 IL App (1st) 121748-U, 2013 WL 3379128 at *2 (Ill. App. 2013). From the time he was just four years old, Tabb had been a ward of the Department of Children and Family Services. He had lived in the Nellum Group Home for less than a year. The group home log that tracked when residents came and went on the day of the shooting recorded Brown and Pittard leaving the home at 12:30 p.m. and 12:45 p.m., respectively. Significantly, the log book notes that Tabb was not granted permission to leave the home until 1:45 p.m. — after the shooting. At trial the State challenged the reliability of the log book. See id. at *3. (We do not attempt to resolve that factual issue.)

That same day, at about 1:20 p.m., Salvador Gomez stopped at a red light just a few blocks away from the group home. People v. Tabb (Tabb I), 374 Ill.App.3d 680, 312 Ill.Dec. 470, 870 N.E.2d 914, 917 (2007); Tabb II, 2013 WL 3379128, at *1. His windows were already rolled down when a man approached and pointed a gun at him. Tabb II, 2013 WL 3379128, at *1. The assailant demanded that Mr. Gomez get out of his car, but he refused. Id. Instead, he struggled with the assailant over the gun before being shot twice in the stomach and once in the arm. Id.; Tabb I, 312 Ill.Dec. 470, 870 N.E.2d at 918. Gomez needed major surgery but survived the attack.

Delayed by the surgery, seven weeks later on October 25, 2003, Gomez identified Tabb from a police lineup. Tabb II, at *2. Gomez had been under duress, afraid for his life, at the time of the attack. His initial description of the attacker was vague: a tall skinny black man wearing white clothes and a bandana. At Tabb’s trial a year later, Gomez was unable to recall confidently how long the entire encounter lasted, perhaps as short as five seconds or as long as five minutes, but he identified Tabb as the shooter. Also at trial, an off-duty police officer who was at the scene of the shooting described the shooter as wearing a black and white jersey and his hair in braids. Id. at *3, 10. The Nellum Group Home care worker Brian Gary testified that he never knew Tabb to wear braids but that Pittard often did. The off-duty police officer identified Pittard as the shooter and Brown as the getaway driver. Brown testified, however, that he saw Tabb shoot Gomez, though Brown later recanted that testimony. Another witness testified that Tabb was not the shooter, while yet another testified that Tabb confessed to her that he shot a rival gang member. Beyond the conflicting eyewitness testimony, no physical evidence tied Tabb to the shooting.

In late 2004, the jury found Tabb guilty on three charges. The trial court sentenced him to consecutive sentences of twelve years for attempted first-degree murder (which was merged with the aggravated battery with a firearm) and four years for aggravated vehicular hijacking. Tabb I, 312 Ill.Dec. 470, 870 N.E.2d at 917. In his direct appeal, the state appellate court vacated his conviction for aggravated battery but affirmed in all other respects. Id., 312 Ill.Dec. 470, 870 N.E.2d at 929-30. One judge dissented on grounds that are not part of this appeal. See id. 312 Ill.Dec. 470, 870 N.E.2d at 930 (Neville, J., dissenting).

B. State Post-Conviction Relief

In 2009, petitioner Tabb filed his operative petition for post-conviction relief in the state trial court. He argued that new evidence established his actual innocence, and he said his trial counsel had been ineffective. Tabb II, 2013 WL 3379128, at *4. The trial court granted the State’s motion to dismiss and denied Tabb’s motion to reconsider. Id. at *5. On appeal, the state appellate court remanded, finding that Tabb’s allegations of actual innocence warranted an evidentiary hearing. Id., citing People v. Tabb, No. 1-09-2904, 405 Ill.App.3d 1203, 375 Ill.Dec. 700, 997 N.E.2d 1011 (Ill. App. 2011) (unpublished).

In May 2011, on remand to the state trial court, Tabb filed a motion for limited post-conviction discovery. He requested any “written notes relating to, or recordings of, interviews of witnesses named in Defendant’s Amended Post-Conviction Petition.” Id. at *5. A defense investigator had spoken with Gomez’s wife Nelly and reported that she would testify that her husband had seen a photograph of Tabb prior to the lineup and that a police officer confirmed Gomez’s identification of Tabb after the lineup. The defense sought interview notes from state investigators who had also spoken to Mrs. Gomez after the defense investigator did so. In October 2011, before the evidentiary hearing, Tabb requested sanctions, asserting that the State had not complied with the request and that the interview notes upon which the state investigators based their final reports had been destroyed. Id. at *5-6. The court did not impose sanctions but did instruct the State to instruct investigators to keep any future interview notes in the case.

At the evidentiary hearing, Mrs. Gomez testified about the lineup identification. She accompanied her husband to the police station on the night of the lineup. Id. at *7. She waited at a desk while an officer escorted her husband to the lineup. She testified that a few desks over, she saw a stack of files. On the top of the stack was a photograph of a person’s face. She reported feeling mad and having a sick feeling about the picture. Id. But it was not until Salvador and the police officer returned from the lineup that she learned the identity of the person in the photograph. Mr. Gomez told his wife that he had identified the shooter. The accompanying police officer obliged Mrs. Gomez’s request to see a photograph of the man her husband identified — the same photograph that had given her a sick feeling — and it was a picture of Tabb. Id.

The state trial court denied relief at the close of the evidentiary hearing. The state appellate court affirmed. It found that the “evidence at defendant’s original trial was overwhelming,” relying on the identifications of Gomez, Brown, and Pittard — despite each of those being called into question, and the testimony of Yvonne Ford, who suffered from credibility issues. Id. at *11. The court said that Tabb’s new witnesses were not reliable and their testimony would probably not “change the result on retrial.” Id. at *14.

C. Federal Habeas Corpus Petition

Having exhausted state court remedies, Tabb sought federal relief. In 2014, he filed a habeas corpus petition under 28 U.S.C. § 2254 raising four claims for relief: “(1) the state violated Tabb’s Constitutional rights by withholding exculpatory information and evidence of an improper and suggestive lineup ...; (2) the state destroyed, in bad faith, potentially useful evidence of the tainted lineup and independent eyewitness testimony that Tabb was not the shooter; (3) the state violated Tabb’s rights by destroying, in bad faith, potentially useful ... interviews; and (4) absent the Constitutional violations ... Tabb would have been able to establish his innocence.” Tabb v. Butler (Tabb III), No. 14-CV-2023, 2016 WL 1056657, at *3 (N.D. Ill. Mar. 17, 2016). The district court allowed Tabb to take discovery regarding the potentially tainted lineup and the destruction of notes. The district court’s ultimate denial of summary judgment relied on the parties’ post-discovery statements of undisputed material facts.

The district court found that Tabb had procedurally defaulted the Brady claim. Tabb did not raise the “operative facts and controlling legal principles” for his Brady claim until he filed his post-conviction petition for leave to appeal and thus did not “fairly preserve this issue.” Id.' at *4. The district court, however, found that Tabb’s default should be excused because he was unaware of the possible claim until Mrs. Gomez allegedly informed his investigators that the lineup had been tainted, and because actual prejudice could have resulted from the concealment of a purposefully tainted lineup. The court rejected the claim on the merits, however. The district court also denied the Youngblood claim, noting an absence of clear Seventh Circuit precedent on whether destruction of evidence for state post-conviction proceedings is within the purview of federal habeas relief. Id. at *5-6. The district court applied the deferential standard required by 28 U.S.C. § 2254(d)-(e), finding that the state appellate court did not make an unreasonable determination of law or fact and that the Youngblood claim failed on the merits. Without an independent constitutional violation, the court found that Tabb’s claim of actual innocence was not cognizable. Id. at *6. The district court denied habeas relief but granted a certificate of appealability on whether “Young-blood applies to the preservation of evidence in a post-conviction proceeding.” Id. at *7. We expanded the certificate of ap-pealability to add the Brady claim.

II. Analysis

The Supreme Court has repeatedly addressed “what might loosely be called the area of constitutionally guaranteed access to evidence.” Youngblood, 488 U.S. at 55, 109 S.Ct. 333, quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982).

Brady held that due process requires the prosecution to disclose material evidence favorable to the accused upon a defense request, regardless of the good or bad faith of the prosecution. 373 U.S. at 87, 83 S.Ct. 1194. The Court extended Brady to reach cases where no requests for evidence were made but the evidence “is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed.” United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Another related line of cases addresses due process violations when the State destroys exculpatory evidence. In California v. Trombetta, 467 U.S. 479, 488-90, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the Court gave three reasons for denying defendants’ destruction of evidence claim: the officers acted in good faith, the exculpatory nature was minimal, and the defendants had alternative methods of demonstrating their innocence. In the absence of bad faith, the defendant must show that the destroyed evidence was material and exculpatory. Id. at 489, 104 S.Ct. 2528. Five years later in Youngblood, the Court held that when bad faith is shown, the defendant can succeed on his destruction of evidence claim if the evidence may have exonerated him. Youngblood, 488 U.S. at 56-58, 109 S.Ct. 333.

A. Preliminary Issues

Before digging into Tabb’s due process claims, we address two preliminary issues. First, the State asserts that the federal district court erred in allowing discovery before deciding Tabb’s motion for summary judgment. We review the district court’s limited grant of discovery for abuse of discretion. Hubanks v. Frank, 392 F.3d 926, 933 (7th Cir. 2004), citing Bracy v. Gramley, 520 U.S. 899, 904, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). As a general rule, federal habeas petitions must be decided on state court records. Cullen v. Pinholster, 563 U.S. 170, 182, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). To obtain discovery, the federal petitioner must “(1) make a colorable claim showing that the underlying facts, if proven, constitute a constitutional violation; and (2) show ‘good cause’ for the discovery.” Hubanks, 392 F.3d at 933; 28 U.S.C. § 2254(e)(2) (authorizing evidentiary hearings in limited circumstances).

The deposition testimony developed during the federal discovery did not produce the support Tabb needed. That fact does not mean, however, that the district court erred in allowing the discovery. The district court evaluated Tabb’s request and concluded that he had “made a colorable claim showing that the underlying facts, if proven, constitute a constitutional violation as to his allegations of a tainted lineup and the destruction of notes, insofar as those notes evidence an allegedly tainted lineup.” The court’s grant of discovery was sensible and limited to these issues, and the court denied all other discovery requests. The district court did not abuse its discretion.

The second preliminary issue is Tabb’s freestanding claim of actual innocence. “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 390-91, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Whether the constitutional guarantee of due process supports independent claims of actual innocence without any other constitutional violation remains open to debate. See District Attorney’s Office v. Osborne, 557 U.S. 52, 71, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009) (question remains open); House v. Bell, 547 U.S. 518, 554-55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (same); In re Davis, 557 U.S. 952, 130 S.Ct. 1, 174 L.Ed.2d 614 (2009) (mem.) (Stevens, J., concurring) (same); Bradford v. Brown, 831 F.3d 902, 917 n.7 (7th Cir. 2016) (Hamilton, J., dissenting) (same).

We acknowledge that it is possible that Tabb, despite his conviction, is actually innocent of shooting Salvador Gomez. The case against Tabb depended entirely on the accuracy of Mr. Gomez’s identification. Such identifications of strangers in quick, high-stress encounters are often mistaken, and some other witnesses’ accounts support Tabb’s claim of innocence. If the federal courts will recognize freestanding constitutional claims of actual innocence, however, it is clear that evidence of innocence will need to meet an “extraordinarily high” threshold. Herrera, 506 U.S. at 392, 417, 113 S.Ct. 853. Tabb’s evidence is not strong enough for this case to break that new constitutional ground. He has called his conviction into doubt, but he has not offered objective and highly reliable evidence of actual innocence. Thus, Tabb would be entitled to habeas relief only if he could establish an independent constitutional violation. He cannot, for reasons we now explain.

B. Standard of Review

This habeas case is unusual in that the petitioner was allowed to conduct additional discovery and to supplement the record with deposition testimony relevant to his claims, and he moved for summary judgment. The district court denied both Tabb’s motion for summary judgment and the petition itself, all without a federal evidentiary hearing. Accordingly, our review of the district court’s decision is die novo. See, e.g., Blackmon v. Williams, 823 F.3d 1088, 1099 (7th Cir. 2016); Stitts v. Wilson, 713 F.3d 887, 891 (7th Cir. 2013).

C. Brady Claim

To establish a Brady violation, the petitioner must show that the State suppressed material evidence that was favorable to him. Brady, 373 U.S. at 87, 83 S.Ct. 1194; Strickler v. Greene, 527 U.S. 263, 280-81, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). When the claim at issue was not decided on the merits in state court, we review de novo. Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009).

First, the State continues to argue that there is no reason to excuse Tabb’s procedural default of this claim in the state courts. We disagree. The general rule is that before a federal court may consider a habeas claim, the petitioner must present the claim fairly in a full round of state court proceedings. Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). However, if the petitioner did not do so, the default may be excused when the petitioner shows both cause for the default and actual prejudice, or shows that federal review is needed to prevent a fundamental miscarriage of justice. Id. The district court correctly found that Tabb’s procedural default should be excused because he demonstrated-cause (he was “unaware of the possible claim until Mrs. Gomez allegedly informed his investigators that the lineup was tainted”) and actual prejudice (“concealment of a purposefully tainted lineup” could have resulted in actual prejudice). Tabb III, 2016 WL 1056657, at *4.

Substantively, Mr. Gomez’s lineup identification and testimony were essential to Tabb’s conviction. Tabb argues that the evidence provided by Mrs. Gomez after trial calls into question that crucial identification and testimony. The district court rejected Tabb’s Brady claim because there is insufficient evidence of a suggestive lineup in which Mr. Gomez saw the photograph of Tabb in the police station before he identified Tabb in the lineup. Id. On appeal, Tabb asserts that the possible opportunity to see a photograph of Tabb moments before the lineup and what he claims was the police officer’s confirmation that Mr. Gomez had selected the correct suspect in the lineup resulted in an unconstitutionally suggestive lineup. Tabb’s Brady claim relies on the State’s suppression of the facts showing the lineup was unfairly suggestive.

Has Tabb shown that the lineup was actually suggestive? No testimony from Salvador Gomez indicates that it was, but we must also assess Mrs. Gomez’s accounts. She first came in contact with Tabb’s lawyers in early 2011 while his post-conviction relief petition was pending. An email from a member of Tabb’s legal team described a conversation with her, reporting that Mrs. Gomez said “that prior to her husband’s lineup identifying Tabb, they were waiting in a room. In that room was a file and [Tabb’s] picture was on top of the file just sitting there. They both looked at it,” and later, after the lineup, “the police officer told them [ ] Gomez got his lineup id correct.”

If that account were true, such priming of the witness and the later reinforcement of the witness’s lineup identification would undermine the independence and reliability of the identification. In that event, Tabb might well be able to establish that Salvador Gomez’s identification of him was tainted by an unconstitutionally suggestive lineup. See Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (possibility of misidentification would be “heightened if the police indicate to the witness that they have other evidence that one of the persons pictured committed the crime” and that “improper employment of photographs by police may sometimes cause witnesses to err in identifying criminals”); cf. Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003) (witness identification is admissible unless both “the challenged procedure was unduly suggestive” and also the totality of the circumstances indicate that the identification was not “sufficiently reliable to prevent misidentification”).

During a follow-up meeting between Mrs. Gomez and two state investigators, however, she gave an account that was not consistent with the report of the defense investigator. One of the state investigators made alterations to a print-out of the email from Tabb’s legal team. Based on the conversation between the investigators and Mrs. Gomez, one investigator corrected the statements in the email with handwritten modifications and asked her to initial the changes to signal her approval. She did so. The changes reflect that Mrs. Gomez said that only she, not her husband, saw the photograph of Tabb. The investigator also drew a line through all of the remarks about the police officer confirming the identification, striking them in their entirety, apparently with Mrs. Gomez’s blessing.

The state investigators then typed a report from the handwritten notes they took during the interview. Those notes were destroyed after the typed summary report was created. In the final report, the state investigators wrote: “As Nelly [Gomez] was sitting alone, she saw a photograph on a nearby desk.” “When Salvador and the detective came to where she was sitting, Nelly learned that Salvador had identified the offender in the line-up. Nelly asked, ‘Who was it’. The detective then went to the picture Nelly previously viewed, sitting on a nearby desk. He showed Nelly the person in the photograph, telling her this was the offender,” to indicate the individual Mr. Gomez had identified, not that his identification was correct.

Mrs. Gomez then testified twice: in a state post-conviction evidentiary hearing and in a deposition for the federal habeas petition. In the state hearing, she testified that while she sat alone waiting for her husband to complete the lineup, she saw a photograph of Tabb on a stack of files a few desks over. When she saw the image, she “just had a sick feeling.” When her husband returned and told her he had identified his attacker, Mrs. Gomez asked the police officer if he would show her “a picture of the person that tried to kill my husband.” The police officer took the image she had previously seen, and said, “Oh, it’s right here. Look. This is him.” When the defense confronted her, “And you told us ... that the police officer told your husband that he selected the right person in the lineup; Is that correct?” Mrs. Gomez responded no.

Mrs. Gomez then provided similar deposition testimony for the federal habeas petition. This time she said that rather than being escorted to the lineup immediately, her husband waited with her before the lineup in the same room where the photograph of Tabb was lying atop a stack of papers. Yet, again she said that she had seen the photograph only while sitting alone after her husband left, and her “sixth sense” gave her an angry, sick feeling about the boy in the image. Again she testified that when her husband returned, she requested to see “a picture of the person that was going to take my husband away.” The police officer showed Mrs. Gomez the same photograph she had seen while alone. He told her, “this is him, your husband’s assailant.”

We must conclude that the petitioner did not prove that the lineup procedures were suggestive. There is no direct evidence that Mr. Gomez was even able to see the photograph of Tabb prior to the lineup, let alone that he actually saw it. There also is no admissible evidence that the police officer confirmed with Mr. and Mrs. Gomez that Salvador had identified the correct lineup participant, only that he showed them a photo of the man Salvador identified. Thus, Tabb has not shown that the State suppressed material evidence favorable to the defense because there is no evidence of a suggestive lineup.

D. Youngblood Claim

Tabb also asserts a Youngblood claim. Because the claim was decided on the merits in state court, we review the state court decision deferentially. The petitioner must show that the state courts unreasonably applied clearly established federal law or unreasonably determined the facts. 28 U.S.C. § 2254(d); Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013).

In Youngblood, the Supreme Court held that a due process violation may result when the state destroys evidence in bad faith. 488 U.S. at 56, 109 S.Ct. 333 (petitioner must show that exculpatory nature of the destroyed evidence was apparent before destruction and that evidence could not be obtained elsewhere, in addition to bad faith). Youngblood challenged his conviction for child molestation, sexual assault, and kidnapping. Id. at 52, 109 S.Ct. 333. The victim’s clothing had been stored improperly without refrigeration, so the samples deteriorated. Id. at 53, 109 S.Ct. 333. Blood and DNA testing techniques available at the time produced inconclusive results. Id. at 54, 109 S.Ct. 333. Yet the victim identified Youngblood as his attacker. Id. at 53, 109 S.Ct. 333. Youngblood’s defense at trial was that the victim had misidentified him and that if the clothing had been refrigerated, proper testing would have exonerated him. Id. at 54, 109 S.Ct. 333. A jury found Youngblood guilty, but the Arizona Court of Appeals reversed. Id. The Supreme Court of the United States reversed in turn and reinstated the conviction because there was no showing of bad faith. Id. at 55, 109 S.Ct. 333.

Tabb invites us to decide whether destruction of evidence relevant to state post-conviction proceedings can justify federal habeas relief. In Trombetta and Youngblood, the issues concerned exculpatory evidence created prior to trial. The evidence at issue here was both created and destroyed during post-conviction proceedings. Other circuits have found that errors in state post-conviction proceedings do not entitle a petitioner to federal habe-as relief because the challenges are not challenges to the petitioner’s detention. See, e.g., United States v. Dago, 441 F.3d 1238, 1248 (10th Cir. 2006) (“a delay in post-conviction proceedings does not give rise to an independent due process claim that would justify granting a defendant habeas relief’); Alley v. Bell, 307 F.3d 380, 387 (6th Cir. 2002) (error committed during state post-conviction proceedings cannot provide basis for federal habeas relief), citing Kirby v. Dutton, 794 F.2d 245, 247 (6th Cir. 1986). Here, the interview notes were created and destroyed in the course of discovery during a state collateral proceeding, but the notes were evidence relevant to a possible constitutional violation before trial. We are reluctant to adopt a rule that would permit evidence of a Brady violation to be destroyed if evidence of the violation came into being only after direct review. We decline to decide that issue in this case. Assuming relief could be legally available based on destruction of such exculpatory evidence in post-conviction proceedings, Tabb’s Youngblood claim still fails.

Because the state court adjudicated this claim on the merits and discovery did not yield a new or materially altered claim, the petitioner must demonstrate that the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d); Warren, 712 F.3d at 1096. Here, the state court assessed Tabb’s Youngblood claim in the context of a request for sanctions for the State’s failure to comply with the discovery request, and the court articulated the correct standards for analysis. Tabb II, 2013 WL 3379128, at *16.

To establish a Youngblood violation, petitioner Tabb must show that the government acted in bad faith, that the exculpatory nature of the evidence was apparent, and that the evidence could not be obtained elsewhere. Youngblood, 488 U.S. at 56, 109 S.Ct. 333; see also United States v. Fletcher, 634 F.3d 395, 407 (7th Cir. 2011). Tabb has not met that standard.

First, it is undisputed that the State destroyed the handwritten notes taken by state investigators during interviews with new witnesses during the post-conviction discovery process. Second, the state appellate court found that the “defendant has provided no evidence that the destroyed notes contained material exculpatory evidence,” nor has the defendant “suggested that the destroyed notes were material or exculpatory at all.” Tabb II, 2013 WL 3379128, at *16. Rather, investigators destroyed the handwritten notes as typical practice after the notes were typed into summary reports. Without further explanation, the state court determined that the “substance of the handwritten notes” was contained in the summary reports. Id. Third, the state court also found that Tabb failed to show bad faith on the part of the government — there was “no evidence that the State destroyed the notes as a result of defendant’s discovery request,” so there was no evidence of bad faith. Id. The federal district court held that “the state court’s determination was not contrary to, or an unreasonable application of, clearly established federal law. Nor was there an unreasonable determination of the facts.” Tabb III, 2016 WL 1056657, at *6. We agree.

First, there is no evidence that the destroyed interview notes contained actual or potentially exculpatory information apparent to the investigators. While we recognize that it is difficult to present evidence of the contents and nature of destroyed evidence, the standard requires more than the destruction itself to support an inference that the evidence was exculpatory. Mrs. Gomez’s prior statements were not consistent with some key details in the summary reports, but that does not mean the reports do not accurately reflect her statements to the State investigators. Her state-court and federal deposition testimony after the report was typed is consistent with the report.

Second, the evidence does not show that the notes were destroyed in bad faith. Petitioner Tabb urges us to infer bad faith from the facts that when the handwritten notes were destroyed, the State knew of the defense discovery request for handwritten notes and that there is no evidence that the State attempted to prevent the destruction of notes. See Strickler, 527 U.S. at 280-81, 119 S.Ct. 1936 (holding the prosecutor responsible for favorable evidence known only to the investigators). Other evidence points in the opposite direction, and there is no direct evidence of bad faith in this case. The routine practice of destroying notes after their contents were captured in typed reports, while problematic, weighs against a finding of bad faith, and the evidence does not compel a finding that the person who destroyed the notes knew of the defense discovery request.

We simply cannot say that the state court’s findings of fact on these points were unreasonable or that the court unreasonably applied clearly established federal law. We agree with the district court that the Youngblood claim cannot succeed.

In sum, Tabb has not presented sufficient evidence of a due process violation under Brady or Youngblood, and his claim of actual innocence also fails. The judgment of the district court denying Tabb’s habeas corpus petition is AFFIRMED.

      . To support his claim of actual innocence, Tabb submitted four affidavits with his post-conviction relief petition, from Betty Stuckey, David Carr, Isaac Pittard, and Cynthia Estes. Stuckey was a bystander witness to the shooting. She testified that she was able to see clearly the face of the shooter and that the shooter was not Tabb. Tabb II, 2013 WL 3379128, at *4. Carr, Stuckey’s son, gave a similar account of the shooting and claimed that Tabb was neither the shooter nor at the scene. Id. Estes claimed that in 2008 Brown told her and an attorney that he was “100%” positive that Tabb was not the shooter, recanting his earlier testimony that Tabb was the shooter. However, Brown refused to sign an affidavit saying the same. Id. at *5. Pittard changed his story, too, asserting that only he and Brown were together at the time of the shooting, and Tabb was not at the scene. He said he had lied to the police about Tabb’s involvement so that he would not be blamed for the shooting. Id.

      . The state court did not permit the defense to present expert testimony on the reliability of Gomez’s identification or scientific research on eyewitness memory. Tabb II, 2013 WL 3379128, at *6.

      . Over a decade later, in 2000, new DNA testing techniques allowed the degraded evidence to be tested, and Youngblood was exonerated. National Registry of Exonerations, Larry Youngblood, https://www.law.umich. edu/special/exoneration/Pages/casedetail. aspx?caseid=3774 (last visited Apr. 3, 2017).
      In 2002, after the DNA was entered into the national convicted offender database, a different man was convicted of the crime. Innocence Project, Larry Youngblood, https://www. innocenceproject.org/cases/larry-youngblood/ (last visited Apr. 28, 2017).


author: KANNE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. SEALED DEFENDANT JUVENILE MALE (4), Defendant-Appellant.
    No. 16-3311
    United States Court of Appeals, Seventh Circuit.
    Argued March 28, 2017
    Decided May 2, 2017

      Before FLAUM, KANNE, and HAMILTON, Circuit Judges.
   KANNE, Circuit Judge.

Three juveniles — including M.G., who is the defendant-appellant here — and one adult allegedly robbed an Indianapolis CVS pharmacy at gunpoint on October 14, 2015. They were charged with Hobbs Act Robbery, 18 U.S.C. § 1951(a), and possession of a firearm during that robbery, 18 U.S.C. § 924(c). The government sought to transfer the juveniles’ cases for adult prosecution. See 18 U.S.C. § 5032.

Under 18 U.S.C. § 5032, a juvenile’s case can be transferred for adult prosecution if certain steps are followed. See United States v. Jarrett, 133 F.3d 519, 535-36 (7th Cir. 1998). One of those steps requires the district court to conclude that the transfer would be “in the interest of justice.” 18 U.S.C. § 5032. To make that determination, the statute instructs the court to make findings on the following factors:

1. the age and social background of the juvenile;
2. the nature of the alleged offense;
3. the extent and nature of the juvenile’s prior delinquency record;
4. the juvenile’s present intellectual development and psychological maturity;
5. the nature of past treatment efforts • and the juvenile’s response to such efforts;
6. the availability of programs designed to treat the juvenile’s behavioral problems.

18 U.S.C. § 5032 (numbering added).

The government moved to have the juveniles examined by government psychologists to gather information on four of these factors. The juveniles objected to that motion, arguing that the psychological examinations — which would be conducted without their counsel present — would violate their Fifth and Sixth Amendment rights. The magistrate judge granted the government’s motion and ordered the juveniles to submit to psychological examinations, holding that the Fifth and Sixth Amendments do not apply in this context. She further ordered that “[t]he examinations may be conducted without the presence of defense counsel” and that the psychologists conducting the examinations “shall not talk to any of Defendants about the specific allegations contained in the charges against them in this case.” (R. 134 at 8.)

The district court agreed with the magistrate judge’s decision rejecting the juveniles’ arguments. M.G. then filed this interlocutory appeal, again arguing that the psychological examination would violate his constitutional rights. He makes this argument despite the rejection of similar arguments by at least three of our sister circuits. See United, States v. Juvenile Male, 554 F.3d 456 (4th Cir. 2009); United States v. Mitchell H., 182 F.3d 1034 (9th Cir. 1999); United States v. A.R., 38 F.3d 699 (3d Cir. 1994). We, however, have not yet decided this question. And because we conclude that we don’t have jurisdiction to hear this interlocutory appeal, we don’t address the merits of this argument today.

In most instances, we have jurisdiction over appeals only from final decisions of the district courts. 28 U.S.C. § 1291. “Criminal defendants, like others, must ordinarily wait for a final judgment before they may bring an appeal.” United States v. Sinovel Wind Grp. Co., Ltd., 794 F.3d 787, 790 (7th Cir. 2015). A final decision is “one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Gelboim v. Bank of Am. Corp., — U.S. -, 135 S.Ct. 897, 902, 190 L.Ed.2d 789 (2015) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). Thus, the “core application” of our jurisdiction under § 1291 is “to rulings that terminate an action.” Id.

But that is not the full extent of our jurisdiction. There does exist a “small class” of nonfinal orders that “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). These are known as “collateral orders,” and they are immediately appeal-able if three elements are satisfied: the nonfinal order must “(1) be conclusive on the issue presented; (2) resolve an important question separate from the merits of the underlying action; and (3) be ‘effectively unreviewable’ on an appeal from the final judgment of the underlying action.” Doe v. Vill. Of Deerfield, 819 F.3d 372, 375 (7th Cir. 2016) (quoting Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009)). M.G. argues that the district court’s order satisfies all three elements.

Had M.G. waited to appeal until after the district court had issued an order granting the government’s motion to transfer under 18 U.S.C. § 5032, then we would be able to consider the merits of his argument now. See United States v. J.J.K., 76 F.3d 870, 871-72 (7th Cir. 1996) (holding that a transfer order issued under 18 U.S.C. § 5032 is an appealable collateral order). But M.G. seeks our review at an earlier stage in the transfer process: he argues that the district court’s order requiring him to submit to the government psychologist’s examination—which would provide information that the court would later use to determine whether to grant the transfer order — should also be immediately appealable. We disagree.

The collateral-order doctrine is an intentionally narrow exception to the final judgment rule and applies only to a “small category” of decisions. Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). “The doctrine’s modest scope reflects a ‘healthy respect’ for the virtues of the final-judgment rule.” Abelesz v. OTP Bank, 692 F.3d 638, 649 (7th Cir. 2012) (quoting Mohawk Indus., 558 U.S. at 106, 130 S.Ct. 599). When deciding whether to extend the doctrine, we view the asserted interest in broad terms: “[t]he justification for immediate appeal ... must be based on the entire category of similar cases rather than the potential benefits in the particular case.” Id.; see also Mohawk Indus., 558 U.S. at 108, 130 S.Ct. 599 (“The crucial question ... is not whether an interest is important in the abstract; it is whether deferring review until final judg ment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders.”). “As long as the class of claims, taken as a whole, can be adequately vindicated by other means, the chance that the litigation at hand might be speeded, or a particular injustice averted, does not provide a basis for jurisdiction under § 1291.” Abelesz, 692 F.3d at 649 (quoting Mohawk Indus., 558 U.S. at 107, 130 S.Ct. 599).

Arguments to expand the collateral-order exception to a new class of orders typically fail at the third step in our analysis, which asks whether the class of orders would be “effectively unreviewable” at a later stage in the proceedings if we did not permit review immediately. Herx v. Diocese of Fort Wayne-South Bend, Inc., 772 F.3d 1085, 1090 (7th Cir. 2014). In this context, “effectively unreviewable” means “something more than that hardship will result from delay or that the course of litigation will be changed without an appeal.” United States v. Segal, 432 F.3d 767, 775 (7th Cir. 2005) (quoting United States v. Michelle’s Lounge, 39 F.3d 684, 693 (7th Cir. 1994), abrogated on other grounds by Kaley v. United States, — U.S. -, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014)). Instead, an order is “effectively unreviewable” only when it involves “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978).

M.G. argues that he will be irreparably harmed if we do not review his constitutional claims now. But that is not so. As discussed above, he can raise these same claims on an immediate appeal if the district court grants the government’s motion to transfer. In fact, the Third, Fourth, and Ninth Circuits each considered (and uniformly rejected) similar claims after the district court granted the government’s motion to transfer. See Juvenile Male, 554 F.3d 456 (4th Cir.); Mitchell H., 182 F.3d 1034 (9th Cir.); A.R., 38 F.3d 699 (3d Cir.). Although he might not prevail on his claims at that time, it is the later opportunity to present them that matters, not his chances of success. M.G.’s constitutional claims are not rendered effectively unre-viewable by our refusal to ad-dress them today.

We also note that, if the district court denies the government’s motion to transfer, the government still would be prohibited from using at any subsequent criminal prosecution any information obtained from M.G. during the psychological examination. The statute itself prohibits such use. See 18 U.S.C. § 5032 (“Statements made by a juvenile prior to or during a transfer hearing under this section shall not be admissible at subsequent criminal prosecutions. ). And the government has conceded as much, promising that “[n]one of the information obtained from the examination of the defendants by [the government psychologists] will be used at any subsequent criminal prosecution following the transfer proceeding in this case or in any other case.” (R. 124 at 1.) If the government attempts to renege on that promise, M.G. would have an opportunity to raise his challenge then.

For the foregoing reasons, we DISMISS this appeal without considering the merits.

      . The adult defendant, Anthony Jackson, was also charged with possession of a firearm while being a fugitive from justice, 18 U.S.C. § 922(g)(2).