In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-1403

D ARRYL A LLEN,
                                                Petitioner-Appellant,
                                  v.

N EDRA C HANDLER,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 02 C 7631—Marvin E. Aspen, Judge.



      A RGUED JULY 8, 2008—D ECIDED F EBRUARY 11, 2009




  Before B AUER, C OFFEY, and R OVNER, Circuit Judges.
   C OFFEY, Circuit Judge. The General Store in Joliet,
Illinois, was the scene of an armed robbery on the night
of October 26, 1990, and the store clerk on duty Cheryl
Smithson identified Darryl Allen as the perpetrator—first
from a photographic array and also during his two
state trials. The first of the two trials ended in a dead-
locked jury, but the second trial resulted with Allen
being convicted of armed robbery, which was upheld on
appeal. In the petitioner’s initial appeal of his conviction
2                                               No. 07-1403

he alleged that his trial counsel was ineffective for
eliciting testimony from Detective Farmer referring to the
defendant’s post-arrest silence, and also the petitioner
argued that his appellate counsel was ineffective for
failing to raise the issue of trial counsel’s ineffectiveness
on direct appeal. The state appellate court rejected each of
these arguments, holding that, even if counsel’s perfor-
mance was deficient, he was not prejudiced by the trial
counsel’s question because the evidence of guilt was
overwhelming. We affirm.


                             I.
  Allen’s second jury trial lasted less than a day. As
previously pointed out the store clerk identified the armed
robber and during her testimony referred to him as a
frequent customer and went on to explain that he had
visited the store on two different occasions on the night
of the robbery. Smithson’s testimony also revealed that
the robber was unmasked, which afforded her ample
time to observe and recognize him. She also mentioned
that he had been a frequent patron of the store. She
further stated that the unmasked robber displayed a
gun while standing within a foot of her and directed her
to give him the money in the cash register. Shortly after
the crime, the witness Smithson immediately identified
Allen as the armed robber during a photo lineup and again
at trial. In addition to Smithson’s eyewitness account, a
videotape of the robbery was displayed to the jury. Even
though the pictures on the videotape film were not of
perfect quality, they were of sufficient quality to assist
No. 07-1403                                                3

the jury in substantiating Smithson’s testimony as well
as her identification of Allen as the robber.
  Finally, the State as proof of consciousness of guilt
offered the evidence that Allen fled to Georgia about two
months after the crime. It is well established that evidence
of flight is admissible as a circumstance tending to show
a consciousness of guilt. See Illinois v. Pursley, 

, 1255 (1996).
  It is also interesting to note that during his cross-exami-
nation of the investigator, defense counsel, as distin-
guished from appellate counsel, elicited the following
testimony concerning the post-arrest questioning of Allen:
    Counsel:    Okay. Now, you said that you read Mr.
                Allen the rights off the Miranda form, cor-
                rect?
    Farmer:     That is correct.
    Counsel:    But you filled the answers out?
    Farmer:     That is correct.
    Counsel:    Okay. Isn’t it a fact that Mr. Allen refused
                to answer any questions?
    Farmer:     He refused to answer questions in refer-
                ence to the case in which I asked him
                about.
    Counsel:    Okay. So, he wasn’t cooperating with you,
                correct?
    Farmer:     That is correct.
The jury returned a verdict of guilty, and the judge sen-
tenced Allen to forty-eight years’ imprisonment.
4                                              No. 07-1403

  On appeal, Allen challenged the trial court’s refusal to
instruct the jury on robbery, a lesser-included offense.
He also argued that the presentence investigation
report was limited because the probation officer should
have interviewed more people. Allen undermined this
contention by refusing to be interviewed or cooperate
in the preparation of the presentence report. Finally,
the defendant complained that the trial judge abused
his discretion when sentencing him to forty-eight years
in prison. The appellate court rejected this argument as
Allen had been convicted of a number of crimes (at least
twenty other armed robberies)—including a prior armed
robbery at the same store. The latest robbery was com-
mitted while he was on parole status. Allen’s conviction
and sentence of forty-eight years were affirmed on appeal.
See 

. Allen next brought a motion
for leave to appeal, which the state supreme court
denied. People v. Allen, 

(Ill. 1993).
  Allen then proceeded with a second round of
postconviction litigation in the Illinois courts, arguing
that his trial counsel rendered ineffective assistance by
eliciting testimony concerning his post-arrest silence, and
that prior appellate counsel was ineffective in not raising
this issue on direct appeal. The state appellate court did
not reach the question of whether trial counsel’s elicita-
tion of the testimony fell outside the range of profession-
ally competent assistance, and rather focused on the
prejudice prong. Over a dissent, the court upheld the
denial of relief on this issue, reasoning that Allen could
not have been prejudiced because the totality of the
evidence of his guilt was “overwhelming.” People v.
No. 07-1403                                               5

Allen, No. 3-99-9761 (Ill. App. Ct. June 11, 2001) (unpub-
lished). The state appellate court’s majority explained that
Smithson’s identification of Allen was both prompt and
strong because she had more than ample opportunity to
observe the unmasked perpetrator at close range, and
also remembered him as a frequent customer of the
store, and furthermore she had opportunities to observe
him on two separate occasions in close proximity (as little
as one foot) on the evening of the robbery. 

The
majority added that the surveillance video “tended to
corroborate” Smithson’s testimony and that Allen’s
flight and arrest in the State of Georgia some two
months after the robbery “tend[ed] to show consciousness
of guilt.” 

supreme court again denied leave
to appeal. People v. Allen, 

(Ill. 2001).
  Subsequently, Allen filed a petition for writ of habeas
corpus in federal court. The district court concluded
that the state appellate court’s application of Strickland
was not unreasonable, and thus controlling. Allen chal-
lenges that conclusion here.


                            II.
  We agree that Strickland has reasonably been applied
to Allen’s claim of ineffective assistance of counsel. A
federal court may not grant a habeas corpus petition
unless the state court’s adjudication of the claim
“resulted in a decision that was contrary to, or involved
an unreasonable application of clearly established Federal
law.” 28 U.S.C. § 2254(d)(1). Under the Antiterrorism and
Effective Death Penalty Act (AEDPA), ineffective assis-
6                                                No. 07-1403

tance of counsel is a mixed question of law and fact
reviewed de novo with a strong presumption that the
attorney performed effectively. See United States v.
Fudge, 

, 923 (7th Cir. 2003). The law gov-
erning ineffective assistance claims, announced in Strick-
land, requires that Allen must demonstrate that (1) coun-
sel’s performance fell “outside the wide range of profes-
sionally competent assistance” and (2) “there is a reason-
able probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” 

, 694. The bar for
establishing that a state court’s application of the
Strickland standard was “unreasonable” is a high one,
and only a clear error in applying Strickland will support
a writ of habeas corpus. To demonstrate prejudice
under Strickland, the petitioner must establish “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” 

The state appellate court rejected
this claim on the merits, holding that petitioner could not
satisfy Strickland’s prejudice prong because over-
whelming evidence supported his conviction.
  The petitioner advances three other challenges to the
state appellate court’s adjudication of his claims. Initially,
he argues that the court failed to apply the correct legal
standard for prejudice, resulting in a decision contrary
to Strickland. Second, he contends that, to the extent the
court applied the correct standard for prejudice under
Strickland, it was an unreasonable application of the law
No. 07-1403                                                  7

to the facts of the case. Finally, he argues that the court
did not properly consider his claim that his appellate
attorney was ineffective.


  A. A decision “contrary to” Strickland’s prejudice
     prong.
  Allen argues that the state court’s decision was “con-
trary to” the prejudice prong of Strickland because, in
assessing whether counsel’s performance prejudiced him,
the court wrote that counsel’s alleged error “did not tip
the scales of justice unfairly in favor of the state.” Although
the court repeatedly referred to Strickland, Allen con-
tends that the state appellate court’s use of its “scales of
justice” language raised his burden of proof, essentially
requiring him to show that it is “more likely than not” that
his attorney’s deficient performance altered the outcome
of the case—a standard the Supreme Court explicitly
rejected in 

.
   Allen concedes in his reply brief that he waived this
argument by failing to raise it in the district court. See
Obriecht v. Raemisch, 

, 493 (7th Cir. 2008). The
argument, even if properly raised, is meritless. As
relevant here, a state court’s decision is “contrary to”
federal law if it is “substantially different” from or “oppo-
site to” relevant Supreme Court precedent. Williams v.
Taylor, 

, 405 (2000). No doubt there is a seman-
tic difference between the “tipping the scales of justice”
standard and the actual Strickland test. But there is no
reason to think that the standard is substantially different
8                                                  No. 07-1403

from the Strickland test, nor that it is the equivalent of a
“more likely than not” standard. “Tipping the scales
of justice unfairly” is a vague metaphor that lacks
any obvious connection to any legal standard. The
parties have not identified a source for the language, but
we note that it is currently used in Illinois cases to
describe the showing of prejudice required under the
state’s “plain error” test. See, e.g., People v. Piatkowski, 

, 411 (Ill. 2007) (allowing review of unpreserved
error, regardless of its seriousness, if it is “clear or obvi-
ous” and “the evidence is so closely balanced that the
error alone threatened to tip the scales of justice against
the defendant.”). That might suggest that the language
is more akin to a “clear probability” standard, but it’s
impossible to know—not only because the Illinois courts
to date have not said so, but because the language had not
been used at the time of the state appellate court’s
decision in 2001. Given this ambiguity, along with the
fact that earlier in its opinion the Illinois appellate court
cited Strickland, a single reference to “tipping the scales”
does not demonstrate that the court applied a standard
contrary to clearly established federal law. Rather, “it is
more likely that the court stated its conclusion
imprecisely than that it applied a different standard.”
Stanley v. Bartley, 

, 813 (7th Cir. 2006); see
Eckstein v. Kingston, 

, 850-51 (7th Cir. 2006).


    B. An “unreasonable application” of Strickland’s
       prejudice prong.
  Allen also contends that the state appellate court unrea-
sonably applied Strickland in concluding that the evi-
No. 07-1403                                                9

dence supporting his conviction was “overwhelming.”
He alleges that the state’s single-eyewitness case
coupled with the prior mistrial show that the judge’s
verdict was a close call. And he argues that, because
the case hinged on Smithson’s identification, Detective
Farmer’s testimony that he was silent and uncooperative
when asked about the crime might have eliminated
any reasonable doubt in the jurors’ minds.
  A state court’s decision is “an unreasonable applica-
tion” of federal law if the court “identifies the correct
governing legal principle” from the Supreme Court’s
decisions but “unreasonably applies that principle to
the facts of the prisoner’s case.” 

.
An “unreasonable application” is one that is “not only
erroneous, but objectively unreasonable,” Yarborough v.
Gentry, 

, 5 (2003), which in turn means “some-
thing like lying well outside the boundaries of permissible
differences of opinion,” Jackson v. Frank, 

,
662 (7th Cir. 2003) (citation and quotation marks omit-
ted). In other words, “a habeas petitioner must show that
the state court’s decision unreasonably applied clearly
established Supreme Court precedent by unreasonably
extending a rule to a context where it should not have
applied or by unreasonably refusing to extend a rule to a
context where it should have applied.” Virsnieks v.
Smith, 

, 713 (7th Cir. 2008).
  We are of the opinion that the state appellate court
reasonably applied Strickland when it concluded that
the evidence presented against Allen was compelling
enough to hold that he was not prejudiced by his
10                                              No. 07-1403

attorney’s elicitation of Farmer’s testimony. Although
the case against Allen relied primarily on Smithson’s
eyewitness identification, that identification was not
only reliable but very strong. She had an opportunity to
observe the unmasked robber at close range, fingered
Allen without hesitation in a photographic array as well
as during her testimony at two trials, and identified him
as a frequent customer. The surveillance video, mean-
while, corroborated her account of the robbery. True,
the video of itself was not of sufficient clarity to allow
the jury to independently identify the unmasked robber
as Allen, but the video’s technical limitations did not
undermine Smithson’s account; they simply could not
fully corroborate it. Meanwhile, Detective Farmer’s testi-
mony that Allen did not respond and was uncooperative
when questioned about the crime, while unhelpful for
Allen’s defense, was both short and brief. Neither side
referenced the testimony during closing arguments. See
Bieghler v. McBride, 

, 705-07 (7th Cir. 2004);
Splunge v. Parke, 

, 372-73 (7th Cir. 1998). In
light of the totality of the wealth of evidence concerning
the petitioner’s guilt, it is evident from the record that
the attorney’s questions to Detective Farmer disclosing
Allen’s post-arrest silence did not tip the scales of justice
unfairly in favor of the State. Furthermore, even if we
were to hold that the attorney’s cross-examination was
objectively unreasonable, her representation was not
ineffective because the defendant was not prejudiced by
the testimony.
 Nor will we draw any inference from Allen’s initial
mistrial, which could have been the result of a variety of
No. 07-1403                                               11

circumstances that are irrelevant to our consideration of
prejudice. Although the fact of a prior mistrial might
conceivably give some support to the defendant’s claim
that the case against him was weak, it does not, on its
own, show that an error was outcome-determinative.
Compare Adams v. Bertrand, 

, 438 (7th Cir. 2006)
(attorney’s failure to pursue witness with exculpatory
testimony was prejudicial error where evidence was
“relatively thin” and codefendant who called witness
received mistrial), with Toliver v. Hulick, 

,
1208 (7th Cir. 2006) (prior mistrial irrelevant to show
prejudice from trial court’s refusal to let defendant cross-
examine principal witness about immigration status,
where defendant confessed and witness’s testimony was
strong). Each trial is a distinct event with many nuances
that transcripts can never fully capture; we refuse to
draw any conclusions based on the mere fact that two
different events produced two different results. Because
the evidence of Allen’s guilt is more than substantial,
there is no reason to dwell on his prior mistrial.


  C. Ineffective assistance of appellate counsel.
   Finally, Allen claims that his appellate attorney was
ineffective in failing to argue his Strickland claim. When
an appellate counsel omits “a significant and obvious
issue . . . [the court] will deem his performance deficient.”
Mason v. Hanks, 

, 892-93 (7th Cir. 1996). And
if raising the issue “may have resulted in reversal of the
conviction, or an order for a new trial, [the court] will
deem the lack of effective assistance prejudicial.” 

and quotations omitted).
12                                               No. 07-1403

  In both the Illinois appellate court as well as the
district court, Allen’s claim was rejected on the
grounds that Allen was not prejudiced by his trial attor-
ney’s error, and thus appellate counsel could not have
been ineffective in failing to raise the argument. Allen
challenges this conclusion, noting that his ineffective-
assistance claim should or would have been judged
under a de novo standard of review had it been raised on
direct appeal. See People v. Bailey, 

, 945 (Ill.
App. Ct. 2007). But on postconviction review the state
appellate court explicitly rejected the state’s waiver
argument and evaluated the Strickland claim “on its
merits,” applying de novo review.
                                                  A FFIRMED.




  R OVNER, Circuit Judge, dissenting. The right to coun-
sel—to effective counsel—ensures a fair trial by requiring
that counsel vigorously advance a defendant’s claim of
innocence. See Gideon v. Wainwright, 

, 344
(1963); 

. But here counsel not
only failed to defend Darryl Allen at all stages of his trial,
counsel actually harmed him by eliciting testimony from
the arresting officer, Joseph Farmer, that Allen said
nothing to defend himself after his arrest. The state ap-
No. 07-1403                                               13

pellate court held that Allen was not prejudiced by this
error, and the majority agrees. Because I believe that the
state appellate court unreasonably applied Strickland in
what was essentially a one-witness case, I am compelled
to dissent.
  I join with the majority’s holdings in section II(A) and
II(C) regarding Allen’s argument that the state court
applied the wrong standard to his claims of ineffective
assistance of trial and appellate counsel. But I part ways
with the majority in section II(B), which holds that the
state appellate court did not unreasonably apply
Strickland in concluding that the evidence against Allen
was “overwhelming.” I conclude that the state court did
unreasonably apply Strickland in this regard. I reach this
conclusion even though I agree that the testimony of an
eyewitness like Cheryl Smithson can be sufficient to
affirm a conviction. See United States ex rel. Hampton v.
Leibach, 

, 255 (7th Cir. 2003) (holding that
even vulnerable eyewitness testimony can be “more than
sufficient to convict”). As the majority rightly points out,
Smithson observed the robber at close range, she
fingered Allen without hesitation in a photographic
array and at trial, and she said she had seen him before.
  But the relevant issue here is not the sufficiency of
evidence, but whether Smithson’s testimony over-
whelmingly supports a conviction. It does not. See Krist v.
Eli Lilly & Co., 

, 297 (7th Cir. 1990) (noting
that confidence in a memory does not necessarily
support its accuracy); Elizabeth F. Loftus et al., Eyewitness
Testimony: Civil and Criminal § 4-14 (4th ed. 2007) (noting
14                                              No. 07-1403

that a victim can confuse recent acquaintances with the
perpetrator of a crime). The evidence against Allen was
particularly weak: The surveillance video—the state’s
only physical evidence—does not corroborate Smithson’s
testimony that the perpetrator had entered and left the
store shortly before the robbery, and the video was not
clear enough to support her identification. The state’s
only other evidence—testimony intended to show that
Allen fled the state after he committed the crime—was
meager: unremarkably, Allen was found in Atlanta,
where his sister lives, during the Christmas holidays.
  We have repeatedly held that one eyewitness’s testi-
mony such as Smithson’s was not “so overwhelming that
the outcome of the trial was a foregone conclusion,”

; see Wright v. Gramley, 

, 1043 (7th Cir. 1997) (describing as “weak” state’s
case relying almost exclusively on testimony of two
eyewitnesses); United States ex rel. Freeman v. Lane, No. 89
C 4642, 

at *6 (N.D. Ill. May 14, 1990)
(evidence of guilt not overwhelming where conviction
was based on testimony of lone eyewitness and no
physical evidence corroborated witness’s testimony), aff’d,
Freeman v. Lane, 

(7th Cir. 1992); see also
Anderson v. Johnson, 

, 393-94 (5th Cir. 2003)
(describing as “relatively weak” case relying on two
eyewitnesses’ testimony); Towns v. Smith, 

, 260-
61 (6th Cir. 2005) (describing single eyewitness’s shaky
identification as “scant” evidence of defendant’s guilt).
  With no other evidence linking Allen to the crime,
and with the video surveillance not corroborating
No. 07-1403                                              15

Smithson’s identification, Detective Farmer’s testimony
that Allen was uncooperative and did not respond to post-
arrest questioning acquired undeserved importance. As
the Supreme Court explained in United States v. Hale,

, 180 (1975), “the jury is likely to assign
much more weight to the defendant’s previous silence
than is warranted.” Allen’s counsel was incompetent for
eliciting this testimony because its only probable effect
was to sway the jurors to find guilt. Without evidence
of Allen’s post-arrest silence, the jury would have had to
decide whether Smithson’s identification was accurate
and strong enough to convict—an arduous task. But
Farmer’s testimony of Allen’s uncooperative behavior,
and his refusal to answer questions related to the case,
communicated to the jury that he was conscious of his
guilt—a criminal with something to hide.
  Under these circumstances, it is not reasonable to
describe the case against Allen as so overwhelming
that there is not a reasonable probability that, but for
counsel’s unexplained decision to probe the arresting
officer about Allen’s post-arrest silence, the outcome
would have been different. Indeed, on analogous facts
we have concluded that two eyewitness identifica-
tions—one by a witness who previously knew the de-
fendant—did not constitute evidence of such an over-
whelming character that it could sustain a conviction
where the prosecution had commented on the defendant’s
post-arrest silence. See United States ex rel. Ross v. Fike,

, 734 (7th Cir. 1976).
 In fact, in the earlier trial in which the same evidence
was presented absent the evidence of post-arrest silence
16                                             No. 07-1403

no guilty verdict was reached and the trial ended in a
mistrial. Given the limited evidence of guilt in this case,
it was an unreasonable application of Strickland to hold
that the evidence was overwhelming and, therefore, that
prejudice was not shown. Accordingly, I respectfully
dissent.




                          2-11-09