In the

    United States Court of Appeals
                For the Seventh Circuit

No. 11-2759

D ISHON M C N ARY,
                                                 Petitioner-Appellant,
                                   v.

M ICHAEL L EMKE, W ARDEN,1
                                                 Respondent-Appellee.


              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
               No. 10 C 5185—Charles P. Kocoras, Judge.



    A RGUED S EPTEMBER 10, 2012—D ECIDED F EBRUARY 26, 2013




  Before E ASTERBROOK, Chief Judge, and C UDAHY and
K ANNE, Circuit Judges.
  K ANNE, Circuit Judge. Dishon McNary is currently
serving two life sentences, without the possibility of
parole, in an Illinois state prison. After failing in state


1
  The warden at the time McNary filed his petition was
Marcus Hardy. Hardy has since been replaced by Michael
Lemke, and we have changed our caption accordingly.
2                                               No. 11-2759

court on both direct appeal and post-conviction review,
McNary petitioned the district court for a writ of habeas
corpus. McNary sought relief on the grounds that he
received ineffective assistance of trial and appellate
counsels in his state court proceedings. The district
court denied the writ, and we now affirm.


                     I. B ACKGROUND
  The facts presented here come from the witnesses’
testimony at trial and the Illinois Appellate Court’s sum-
mation of that testimony in its three opinions on this case.
  At approximately 8:00 a.m. on March 20, 1998, 25-year-
old Dishon McNary departed from his mother’s house
for his carpentry job. A few hours later, at 1:00 p.m., he
left work for the day and proceeded straight to the
liquor store. There, he bought a half-pint of Hennessy
cognac and a six-pack of beer. McNary returned to his
mother’s house, where he drank most of the cognac
and one beer. He then decided to take his 1986 Chevy
Caprice to a car wash, where he sat for about an hour
and finished the rest of the cognac. From that point, the
timing of events is fuzzy. McNary drove to a lounge.
He had a few drinks before returning to the liquor
store and purchasing a full pint of cognac. McNary
then headed to a friend’s house, where he and three
others played cards for a few hours. In that time, the
four consumed most of the pint of cognac, along
with a twelve-pack of beer. When the games ended,
McNary drove to his sister’s house. Finally, at well past
1:00 a.m., McNary decided it was time to head home. He
No. 11-2759                                             3

was “feeling high” but thought he could drive. (R. 16-2
at 471.)
  When McNary pulled away from his sister’s home,
he noticed a car that appeared to be following him. As
he continued on his way, the car pulled alongside his
own vehicle. When he saw one of the car’s occupants
bend down, McNary feared he would be carjacked and
stepped on the gas. He accelerated to between fifty
and sixty miles per hour on a road with a posted limit of
thirty-five. Speeding down the road, McNary hit some-
thing. But he kept going. As he glanced back, the menacing
car still pursued. So, when McNary came to a red light,
he ran it. The car behind him did the same. McNary
accelerated to an estimated eighty or ninety miles per
hour. He ran another red light and deliberately by-
passed his home. He did not want to lead his pursuers
there. McNary ran one more red light and remembered
nothing further until waking up in the hospital the
next morning, sometime after 10:00 a.m.
                           ***
  Sadly, McNary claimed the lives of three individuals
that evening. When he first hit “something” on his way
home, he collided with Eric Marshall, a pedestrian at-
tempting to cross the street. The impact sent Marshall
flying into the air, and McNary’s car struck him a
second time as he descended to the ground. Marshall
later died of injuries sustained in the collision. He was
the father of two children, who, at the time, were ages
seven and one.
 Police officers observed the hit-and-run and began
pursuing McNary, who continued to drive. After running
4                                              No. 11-2759

his third red light, McNary remembered nothing fur-
ther. In that time, he ran through a fourth red light
and struck a Dodge Neon. Both occupants of that vehicle,
Benjamin Burrage and Shauntel Moffett, died. Several
police officers, including José Martinez and Richard
Hardesty, caught up to McNary at the accident scene.
The officers pulled McNary from the burning wreckage
of his vehicle. He was unconscious but smelled strongly
of alcohol. Martinez would later testify that he “placed
[McNary] in custody” at that time. (R. 16-2 at 350.) Within
a few minutes, an ambulance came and transported
McNary to Cook County Hospital. Officer Martinez
was ordered to the site of the hit-and-run with Marshall,
while Officer Hardesty stayed at the scene of the
auto accident to investigate.
   At approximately 3:50 a.m., Officer Hardesty went to
Cook County Hospital to interview McNary. McNary
claims not to remember this conversation, (id. at 478),
but Hardesty described him as “[l]ucid,” (id. at 410).
Hardesty introduced himself as an officer investigating
the crash and asked McNary if he had been drinking.
McNary responded that he had had two beers and two
shots. Hardesty then asked how the accident happened.
McNary said, “I seen the man standing in the middle of
the street[;] I beeped my horn[;] he did not move[;] I
kept on going.” (Id. at 411.) At that point, Hardesty in-
formed McNary that he was being placed under arrest.
Hardesty read McNary the “Warnings to Motorist,” which
Illinois police officers read to individuals arrested for
driving under the influence. The warnings discuss the
penalties associated with refusing to have blood alcohol
No. 11-2759                                               5

content (BAC) tested and with registering a result above
the legal limit. Upon hearing the warnings, McNary
agreed to have his BAC tested. Blood samples collected
between 4:30 and 4:45 a.m.—almost three hours after
the accident—came back with a BAC of .22, nearly three
times the legal limit in Illinois. See 625 ILCS 5/11-501.
  At approximately 8:00 a.m. the same morning, Investi-
gator Theodore Ptak also interviewed McNary in the
hospital. Again, McNary does not remember this con-
versation. Prior to speaking, Investigator Ptak advised
McNary of his Miranda rights, which McNary indicated
he understood. McNary subsequently told Ptak that he
had consumed two shots of cognac, three beers, another
half-pint of cognac, and several more beers over the
course of the evening. McNary also told Investigator
Ptak about the car that had caused him to flee. McNary
admitted that while trying to outrun the pursuing
vehicle, he had hit a pedestrian, but “he did not stop
because he knew that he was drunk and that there
were squad cars behind him, chasing after him for
striking the pedestrians [sic].” (R. 16-2 at 523.)
  After further investigation, the State of Illinois charged
McNary with three counts of reckless homicide and
three counts of murder. As the case proceeded to trial,
McNary claimed that his statements to Hardesty and
Ptak were not knowingly or voluntarily made and thus
moved to suppress them. Notably, defense counsel con-
ceded that McNary was not in custody until sometime
after talking with Officer Hardesty. (Id. at 85.) After
holding a suppression hearing, the state trial court
6                                                No. 11-2759

found McNary’s arguments unpersuasive and denied
the motion.
  Two months later, on the morning jury selection was
scheduled to start, defense counsel informed the court
that McNary’s sister, Carla, had important additional
information. Counsel did not renew the motion to
suppress but merely wanted to get Carla’s testimony on
the record to preserve the matter for appeal. (Id. at 147-48.)
Counsel explained that he had “interviewed the
members of the family” but “did not find . . . out [about
Carla’s information until] after the motion [to suppress]
had been ruled upon.” (Id. at 148.) During a break in
trial, and outside the presence of the jury, the trial court
allowed Carla to testify on the record. She said that at
“1:00 something” a.m., a friend came to her house and
let her know about McNary’s car accident. (Id. at 600.)
Carla then said that she went immediately to Cook
County Hospital. The trip took her between fifteen and
twenty minutes, so she arrived at “almost 2:00” a.m. (Id. at
599.) When Carla entered the trauma center, she saw
McNary handcuffed to his hospital bed with a police
officer sitting in a chair next to him. (Id. at 598-99.) She
also claimed that a nurse told her McNary was
under arrest. (Id. at 598.) Carla stayed until McNary
was wheeled out of the room at “2:00 something.” (Id. at
602-03.)
  At trial, Officers Martinez and Hardesty, as well as
Investigator Ptak, testified to the facts described earlier.
McNary also testified to what he remembered. At the
close of evidence, the defense requested a jury instruc-
No. 11-2759                                                7

tion on voluntary intoxication. The trial court heard
arguments on both sides but ultimately rejected the
instruction. The court reasoned that voluntary intoxica-
tion, under Illinois law, could only be a defense to a
crime if the “condition existed to such a degree as to
render [the] defendant wholly incapable of forming the
requisite intent.” (Id. at 556-57.) The court decided that
“[t]here [was] evidence . . . which clearly establishe[d]
that the defendant was not intoxicated to such an ex-
tent”; thus, the instruction was not warranted. (Id. at 558.)
  On May 27, 1999, the jury found McNary guilty of
two counts of first-degree murder for the deaths of
Benjamin Burrage and Shauntel Moffett, the occupants
of the Dodge Neon. The jury also found McNary guilty
of one count of aggravated reckless homicide for the
death of Eric Marshall, the pedestrian. At his sentencing
on June 29, McNary received two life sentences in
prison, without the possibility of parole, for the first-
degree murder convictions, and a ten-year sentence
for the aggravated reckless homicide conviction. He
would serve all sentences concurrently.
  McNary timely appealed his convictions to the Illinois
Appellate Court. People v. McNary, No. 1-99-2370 (Ill. App.
Ct. 2001) (unpublished order). There, McNary made
several arguments, including ineffective assistance of
trial counsel. Two of counsel’s alleged failures are
relevant here: not proving that McNary was in custody
while speaking to Officer Hardesty, and eliciting prej-
udicial testimony from McNary. (R. 8-4 at 3-4.)
 Under the first argument—the custody issue—McNary
pointed to three omissions at the suppression hearing
8                                               No. 11-2759

that allegedly resulted in ineffective assistance: (1) not
questioning McNary himself about whether he felt free
to leave during his conversation with Hardesty; (2) not
calling Carla until after the court had ruled on the
motion; and (3) not questioning Officer Martinez about
putting McNary in custody at the scene of the auto acci-
dent. In upholding McNary’s convictions, the Illinois
Appellate Court rejected each of those arguments. The
court found that it was reasonable for trial counsel not
to have asked McNary about his conversation with
Hardesty, since McNary himself said he could not re-
member it. (Id. at 56.) Second, the court found that
trial counsel acted reasonably in not calling Carla. Specif-
ically, the court said that, “in light of the overwhelming
evidence presented by the State,” Carla’s testimony
would have had “minimal impact on the outcome of
the suppression hearing.” (Id. at 57.) Finally, the court
found that counsel acted reasonably in not calling Officer
Martinez. The court stated that Martinez’s subjective
view about putting McNary in custody was irrelevant,
because custody is determined based upon the state
of mind of the defendant, and McNary was unconscious.
(Id. at 57-58.)
  Under the second relevant issue addressed on direct
appeal—eliciting prejudicial testim ony— appellate
counsel focused on trial counsel’s attempt to obtain a
voluntary intoxication instruction. Appellate counsel
contended that McNary obviously did not qualify for
the defense. (Id. at 13.) For that reason, it was sup-
posedly prejudicial for trial counsel to elicit testimony
about McNary’s “marathon-drinking binge.” (Id.) Appel-
No. 11-2759                                                    9

late counsel went so far as to say, “[i]t is difficult to
imagine that defense counsel would have questioned
[McNary about excessive drinking] had he been
even faintly familiar with the law regarding voluntary
intoxication.” (Id.) The appellate court, however, did not
find this claim availing. The court said that it would
not disturb trial counsel’s strategic choices. The court
explained that the evidence could have warranted
giving the instruction but also justified denying it, espe-
cially in light of McNary’s own statement at trial that,
“I was feeling high, but . . . I think I can drive.” (Id. at 61.)
Because the state appellate court did not find any of
the other claims persuasive, it affirmed McNary’s con-
victions.
   On May 1, 2002, the Illinois Supreme Court denied
McNary’s petition for leave to appeal. People v. McNary,

(2002). Subsequently, on May 23, 2002,
McNary sought post-conviction relief pursuant to
Illinois state law. In that proceeding, McNary raised
several issues, although only one proves relevant here:
ineffective assistance of counsel on direct appeal
for failing to challenge the denied voluntary intox-
ication instruction. On August 9, 2002, the state trial
court dismissed this petition as time-barred and
meritless. When McNary appealed that denial, the
Illinois Appellate Court reversed. People v. McNary,
No. 1-02-2897 (Ill. App. Ct. 2004) (unpublished order).
The court found McNary’s petition timely and having
“raised the gist of a meritorious claim” for ineffective
assistance. (R. 8-5 at 27.) Therefore, the court remanded
for reconsideration.
10                                              No. 11-2759

   On remand, the trial court again granted the State’s
motion to dismiss the ineffective assistance claim. The
court found counsel effective because McNary did not
qualify for a voluntary intoxication instruction; thus,
counsel’s actions were reasonable and did not result in
prejudice. McNary appealed again. This time, the Illinois
Appellate Court affirmed. People v. McNary, No. 1-07-0777
(Ill. App. Ct. 2009) (unpublished order). The court re-
viewed the evidence and found that McNary’s own
testimony explained why he was not entitled to the
instruction. This testimony included McNary’s state-
ments that he knew he hit someone but kept going
because he was being chased by the police. Therefore,
appellate counsel acted reasonably by not raising a
meritless issue on appeal. On May 26, 2010, the Illinois
Supreme Court denied McNary’s petition for leave to
appeal the denied post-conviction relief. People v.
McNary, 

(2010).
  On March 11, 2011, McNary filed an amended petition
for a writ of habeas corpus in the United States District
Court for the Northern District of Illinois. In his petition,
McNary asserted four claims: (1) ineffective assistance
of trial counsel; (2) improper admission of McNary’s
involuntary statements to Investigator Ptak; (3) ineffec-
tive assistance of appellate counsel; and (4) violation of
the Eighth Amendment. In an opinion issued on June 9,
2011, the district court denied relief on all claims.
Then, on August 1, the same court granted McNary
a certificate of appealability on the two ineffective assis-
tance of counsel claims. McNary timely filed his appeal
on those two issues.
No. 11-2759                                               11

                       II. A NALYSIS
A. Habeas Corpus Standards of Review
  The complex standards of review governing petitions
for habeas corpus warrant some explanation. When a
district court denies a petition, we review the denial
de novo. Rann v. Atchison, 

, 835 (7th Cir. 2012).
As we do so, however, the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA) significantly con-
fines our inquiry. 110 Stat. 1214. Today, we need only
address the AEDPA provision that proves dispositive
in this case: 28 U.S.C. § 2254(d). This provision applies
when a prisoner who is “in custody pursuant to the
judgment of a State court” petitions for habeas corpus
based upon an issue “adjudicated on the merits in State
court proceedings.” 

case here. McNary
remains in custody, pursuant to a decision of an Illinois
court. He contends that this custody resulted from a
violation of the Sixth Amendment of the United States
Constitution: ineffective assistance of trial and appellate
counsels. The Illinois Appellate Court addressed both
these issues on the merits. Therefore, § 2254(d) applies.
   McNary alleges only an error of law, not one of fact; so,
under § 2254(d), we can grant the writ only if the state
court proceedings “resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States.” 

technically hear this appeal from the district court,
our inquiry focuses entirely on what occurred in the
state court. In so doing, we look at “the decision of the
12                                              No. 11-2759

last state court to rule on the merits of the petitioner’s
claim.” McCarthy v. Pollard, 

, 483 (7th Cir.
2011). For McNary’s ineffective assistance of trial counsel
claim, that decision was the 2001 opinion of the Illinois
Appellate Court, People v. McNary, No. 1-99-2370 (Ill.
App. Ct. 2001) (unpublished order). For the ineffective
assistance of appellate counsel claim, the relevant deci-
sion is the 2009 opinion of that court, People v. McNary,
No. 1-07-0777 (Ill. App. Ct. 2009) (unpublished order).
  As we begin considering McNary’s claims in light of
§ 2254(d), our inquiry narrows further. The statutory
phrase “contrary to, or involved an unreasonable ap-
plication of, clearly established Federal law” actually
includes two separate standards. 28 U.S.C. § 2254(d).
The state court’s decision is “contrary to” federal law if
it employs the wrong legal standard established by
the Supreme Court. Bell v. Cone, 

, 694 (2002);
Coleman v. Hardy, 

, 814 (7th Cir. 2012). Al-
ternatively, the state court’s decision unreasonably
applies federal law if the “court identifies the correct
governing legal rule . . . but unreasonably applies it to
the facts of the particular state prisoner’s case.” Williams
v. Taylor, 

, 407 (2000); accord 

.
  Here, the state court applied the uncontested legal
standard for ineffective assistance of counsel: Strickland
v. Washington, 

(1984), and its progeny. As
a result, the decisions below were not “contrary to”
clearly established law. 28 U.S.C. § 2254(d); see also

. The sole remaining question is
No. 11-2759                                              13

therefore whether the state court decisions “involved an
unreasonable application of . . . clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). Our answer may
rest only on Supreme Court precedents “as of the time
the state court render[ed] its decision.” Cullen v.
Pinholster, 

, 1399 (2011) (internal quotation
marks omitted). Furthermore, we must consider only
the factual record presented to the state court. 

our review is “highly deferential.” 

disagreement with the state court does not
allow us to grant relief. Harrington v. Richter, 

, 785-86 (2011). We can reverse the holding below
only if “there was no reasonable basis” for the state
court’s decisions. 

.


B. Ineffective Assistance of Counsel Standard
  Because our inquiry will therefore hinge on whether
the Illinois Appellate Court reasonably applied the stan-
dard for ineffective assistance of counsel, we must intro-
duce that standard, as well. The Supreme Court has
developed a two-pronged test for identifying violations
of the right to effective assistance of counsel. 

. The overarching inquiry is “whether
counsel’s conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied
on as having produced a just result.” 

making that determination, the reviewing court
first considers whether “ ‘counsel’s representation fell
14                                               No. 11-2759

below an objective standard of reasonableness.’ ” 

(quoting 

). Under
this prong of the analysis, the court strongly presumes
counsel’s effectiveness. 

. Second,
the court considers whether counsel’s blunders resulted
in prejudice—“ ‘a reasonable probability that, but for
counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.’ ” 

(quoting 

). In other words,
counsel’s errors must “undermine confidence in the
outcome.” 

. Notably, a court
need not address the first prong of the Strickland test if
it is easier to resolve the case on the prejudice inquiry.
Smith v. Robbins, 

, 286 n.14 (2000) (citing

). Given this high standard, even
“egregious” failures of counsel do not always warrant
relief. United States v. Draves, 

, 1335 (7th
Cir. 1997).


C. Application of the Appropriate Standards to McNary’s
   Claims
  On habeas review, our inquiry is now whether the
state court unreasonably applied Strickland to McNary’s
case. Remember, however, Strickland mandates strong
deference to the strategic decisions of 

. Likewise, AEDPA mandates giving the state court
“the benefit of the doubt” in how it applied Strickland.

. Thus, these standards
combine to form the “doubly deferential” approach we
No. 11-2759                                              15

now apply to McNary’s claims. Knowles v. Mirzayance,

, 123 (2009).


1. Ineffective assistance of trial counsel
  McNary first argues that he received ineffective assis-
tance of trial counsel. He bases this claim on four omis-
sions of counsel at the suppression hearing: (1) not
calling Carla McNary to testify; (2) not questioning
Officer Martinez about placing McNary in custody at
the scene of the auto accident; (3) not asking McNary
himself about his conversation with Officer Hardesty;
and (4) not raising the fact that Hardesty waited until
after McNary made incriminating statements to read
him any sort of warning.
  The first three of these claims relate to whether
McNary was in custody prior to his conversation with
Officer Hardesty. The answer to that question would
have greatly impacted the admissibility of McNary’s
statements. If the interrogation occurred in a custodial
environment, Officer Hardesty needed to give McNary
Miranda warnings prior to the start of questioning. See
Miranda v. Arizona, 

, 444-45 (1966). But Officer
Hardesty did not give McNary these warnings. Thus,
had McNary already been in custody, there would have
been a strong basis to suppress his statements. Yet, at
the suppression hearing, trial counsel conceded that
McNary was not in custody and thus did not argue
that Miranda warnings were necessary. McNary now
contends that that decision was ineffective and cites
the instances mentioned above to demonstrate how
16                                                No. 11-2759

counsel could have established the interrogation’s custo-
dial nature.


a. Failure to question Carla McNary
  According to McNary, his sister, Carla, had important
information about whether he was in custody and thus
claims she should have been called during the suppres-
sion hearing. To begin, we note that “custody,” when
used in reference to Miranda, “is a term of art that
specifies circumstances that are thought generally to
present a serious danger of coercion.” Howes v. Fields, 

, 1189 (2012). Determining whether someone
is in custody depends upon “the objective circumstances
of the interrogation.” Stansbury v. California, 

,
323 (1994) (per curiam). Specifically, custody requires
that a “reasonable person [would] have felt he or she
was not at liberty to terminate the interrogation and
leave.” Thompson v. Keohane, 

, 112 (1995), super-
seded on other grounds by statute, 28 U.S.C. § 2254(d).
  Here, when Carla testified during a break in trial, she
said that she saw McNary handcuffed to his hospital
bed with a police officer sitting next to him. (R. 16-2 at 598-
99.) She also testified that a nurse told her McNary was
under arrest. (Id. at 598.) On direct appeal, the Illinois
Appellate Court found that, “in light of the over-
whelming evidence presented by the State,” Carla’s
testimony, even if elicited earlier, “would have had
minimal impact on the outcome of the suppression hear-
ing.” (R. 8-4 at 57.) We must now determine whether
No. 11-2759                                             17

that decision amounted to an unreasonable application
of Strickland.
  First, we note that the record is murky, at best, as to
why McNary’s counsel failed to called Carla earlier.
The extent of the record on that issue is as follows. Trial
counsel explained, “I interviewed the members of
the family and I did not find [Carla’s information] out
[until] after the motion had been ruled upon.” (R. 16-2
at 148.) The court responded, “So it’s not newly dis-
covered evidence[;] it was available. You just weren’t
aware of it.” (Id.) Counsel clarified, “It’s newly discov-
ered in that when I questioned members of the family
no one seemed to have that information. I did newly
discover it [a few days] after the motion.” (Id.) The
court accepted this explanation and allowed counsel
to put Carla’s testimony on the record.
  Thus, under the first prong of Strickland, we have only
a sparse record to use in determining whether counsel’s
representation “fell below an objective standard of rea-
sonableness.” 

. True, “counsel
has a duty to make reasonable investigations.” 

counsel can also “make a reasonable decision
that makes particular investigations unnecessary.” 

particular decision not to investigate
must be directly assessed for reasonableness in all the
circumstances, applying a heavy measure of deference
to counsel’s judgments.” 

leaves unclear to what extent
counsel investigated the stories of McNary’s family
members prior to the suppression hearing. He inter-
18                                              No. 11-2759

viewed some members of the family, but we do not
know (and neither did the state appellate court) whether
he interviewed Carla specifically. Given the “heavy
measure of deference to counsel’s judgments,” 

was appropriate for the Illinois Appellate Court
to find counsel’s investigations sufficient. Counsel,
after all, conducted some interviews, which immedi-
ately distinguishes this case from Kimmelman v.
Morrison, cited by McNary to support his argument. 

(1986). In that case, trial counsel failed to
conduct any discovery at all; this “total failure,” in par-
ticular, persuaded the Court to find counsel ineffective.

contrast, McNary’s counsel conducted in-
vestigations; then, once he found out about Carla’s infor-
mation, he made sure to get her testimony on the record
to preserve the matter for appeal. We find those actions
reasonable.
  More telling, however, is the prejudice prong of the
Strickland standard. Reasonable jurists could disagree
about the effectiveness of counsel’s investigations
(which still satisfies our review of the state court’s deci-
sion), but the answer to the prejudice inquiry is even
clearer. Had Carla testified, it seems highly unlikely
that she would have affected the outcome of the sup-
pression hearing, no less the trial. To make a difference
at the hearing, Carla’s testimony would have needed
to overwhelm the State’s countervailing evidence; other-
wise, it would not have convinced the judge to sup-
press McNary’s statements.
  Carla’s testimony could not have done so, due to its
inherent credibility problems. Carla claims that at
No. 11-2759                                               19

“1:00 something” a.m., someone came to her house
and told her about McNary’s car accident. (R. 16-2 at 600.)
She then claims to have traveled fifteen to twenty
minutes to the hospital, where she arrived at “almost
2:00 o’clock.” (Id. at 599.) Given the other evidence, the
timing of this testimony makes little sense. McNary’s
auto accident occurred at 1:50 a.m. It is thus improbable
that someone else could have known about the accident
at “1:00 something” and that Carla could have been at
the hospital at “almost 2:00 o’clock.” By the time
officers arrived at the scene, called for help, and extracted
McNary from his vehicle, the ambulance probably
did not arrive at the hospital until at least 2:00 a.m.
  Furthermore, timing was critical for Carla’s testimony
to have any import. It was uncontested that Officer
Hardesty placed McNary in custody after their discus-
sion at approximately 3:50 a.m. Thus, Carla’s testimony
would have only made a difference if it suggested
that McNary was in custody prior to that time. Yet,
given the timing inconsistencies between Carla’s infor-
mation and the other evidence, combined with Carla’s
clear interest in helping her brother, it was reasonable
for the Illinois Appellate Court to conclude, as it did,
that the judge would not have credited Carla’s testi-
mony, even if it had been offered earlier.
  Further still, Carla’s statements could not have affected
the outcome of the trial. To establish prejudice, McNary
would need to show not only “a reasonable probability
that he would have prevailed on the motion to sup-
press” but also “a reasonable probability that . . . he
20                                               No. 11-2759

would have been acquitted.” Bynum v. Lemmon, 

, 685 (7th Cir. 2009). Here, even if Carla’s testimony
convinced the judge to suppress McNary’s statements,
the outcome of the trial would not have changed.
Despite McNary’s contentions otherwise, the State pre-
sented enough other evidence for the jury to convict him
of first-degree murder. McNary told Investigator Ptak
that he hit a pedestrian, but “he did not stop because
he knew that he was drunk and that there were
squad cars behind him, chasing after him for striking
the pedestrians [sic].” (R. 16-2 at 523.) McNary knew he
was drunk and that his behavior had caused serious
injury to another; yet, he persisted in driving. In other
words, he knew that his actions created “a strong prob-
ability of death or great bodily harm,” which satisfies
the mental state of first-degree murder under Illinois
law. 720 ILCS 5/9-1(a)(2). Thus, the jury could have con-
victed McNary of murder, even without the statements
made to Officer Hardesty.2 As a result, we cannot find
any error “sufficient to undermine confidence in the
outcome.” 

. More importantly,
we cannot find that the Illinois Appellate Court was
unreasonable in concluding as much.


2
   McNary makes much of the fact that the prosecution
elicited Investigator Ptak’s statements through leading ques-
tions, as if to imply that this fact would discredit them
enough not to sustain a conviction. This argument, however,
carries no force. Defense counsel did not object to the
questions at the time, and, once evidence is admitted, it
becomes the province of the jury to determine its reliability.
See Perry v. New Hampshire, 

, 728 (2012).
No. 11-2759                                                  21

  McNary’s invocation of Rompilla v. Beard, 

(2005), does not persuade us otherwise. The Supreme
Court decided Rompilla in 2005—nearly four years after
the Illinois Appellate Court ruled on McNary’s ineffec-
tive assistance of trial counsel claim. We, however,
may only consider precedents at the time the state court
rendered its decision. 

. A
court cannot apply law yet to be articulated.3
  Finally, we note that McNary’s references to circuit
precedent do not help his case, except to the extent
that they re-articulate holdings of the Supreme Court.
Under § 2254(d), we only review the state proceedings
in light of “clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d); see also Parker v. Matthews, 

,
2155 (2012) (per curiam). For all these reasons, we find



3
  To the extent that the principles of Rompilla were established
in 2001, they are clearly distinguishable from this case. The
attorney in Rompilla had a duty to examine documents he
knew the prosecution would use against his 

. Specifically, counsel knew that the prosecution sought to
seek the death penalty by showing that Rompilla had a long
history of criminal violence. 

to examine Rompilla’s prior conviction file, a public document.

behavior constituted ineffective assistance
of counsel. 

however, McNary’s trial counsel
was not in that position. Whereas Rompilla’s counsel had
notice of useful information and completely failed to
investigate, McNary’s counsel did not have such notice and
conducted some investigation. Thus, the situation here does
not invoke the duty articulated in Rompilla.
22                                              No. 11-2759

that the Illinois Appellate Court reasonably applied
federal law in determining that trial counsel was effec-
tive, even without calling Carla McNary at the suppres-
sion hearing.


b. Failure to question Officer Martinez
   At trial, Officer Martinez testified that he placed
McNary “in custody” at the scene of the auto accident.
(R. 16-2 at 350.) Officer Martinez also stated as much in
his accident report. (R. 8-4 at 69.) Trial counsel, how-
ever, did not question Officer Martinez about this infor-
mation during the suppression hearing. McNary con-
tends that this omission constituted ineffective assis-
tance. The Illinois Appellate Court disagreed. That court
found that Officer Martinez’s statement merely repre-
sented his “subjective view.” (Id. at 57.) According to the
Illinois court, the inquiry of whether someone is in custody
“ ‘depends on the objective circumstances of the inter-
rogation, not on the subjective views harbored
by either the interrogating officers or the person being
questioned.’ ” (Id. at 57-58) (quoting 

). Thus, the court held, Officer Martinez’s views
were irrelevant at the suppression hearing, and counsel
acted reasonably in not questioning him.
  The Illinois Appellate Court was largely correct.
Miranda warnings mitigate the coercive, “police-dominated
atmosphere” of custodial interrogations. Illinois v. Perkins,

, 296 (1990). But “[c]oercion is determined
from the perspective of the suspect.” 

able person in the suspect’s position would be aware of
No. 11-2759                                              23

the situation’s pressures, the subjective understandings
of police officers do not impact the custody inquiry.
See 

; 

.
For that reason, Officer Martinez’s views would not
have influenced the court’s analysis, unless they were
somehow manifest to a reasonable person in McNary’s
position. See 

. Yet, McNary
was unconscious at the time Officer Martinez pulled
him from the burning vehicle. Therefore, someone in
McNary’s position could not have known Officer Marti-
nez’s views at that time.
  The question remains, however, whether McNary
became aware of Officer Martinez’s subjective view
prior to the interview with Officer Hardesty. But testi-
mony from Officer Martinez would not have provided
an answer. Officer Martinez only remained at the scene
of the auto accident long enough to remove McNary
from the vehicle and place him on the ground. (R. 16-2 at
351.) Officer Martinez did not know what happened to
McNary after that point, because he went back to the
site of the hit-and-run with Marshall. (Id.) As a result,
questioning Officer Martinez would not have produced
any more information relevant to the custody inquiry.
We thus find it appropriate for the Illinois Appellate
Court to have deemed reasonable counsel’s decision not
to call Officer Martinez.


c. Failure to question McNary
  In light of the previous discussion, McNary’s next
argument presents the natural corollary: McNary con-
24                                               No. 11-2759

tends that “trial counsel failed to ask . . . [him] about
circumstances that could objectively demonstrate that
he was in custody when questioned by Officer Hardesty.”
(Appellee’s Br. at 26.) Although McNary’s claim speaks
to the doctrine’s focus on a reasonable person in the
suspect’s position, his argument makes little sense given
the facts of his case. McNary himself testified that he
did not remember anything between running his third
red light and waking up in the hospital at 10:00 a.m.,
including his conversation with Officer Hardesty. (R. 16-2
at 478.) Therefore, unless McNary’s initial testimony was
a lie, we cannot fault counsel for failing to ask McNary
about that conversation’s details. As we have said before,
“[l]itigants must live with the stories that they tell
under oath.” Escamilla v. Jungwirth, 

, 870
(7th Cir. 2005). The Illinois Appellate Court reached the
same conclusion, (R. 8-4 at 56), and we cannot find
it unreasonable for having done so.


d. Failure to question Officer Hardesty
  For his final ineffective assistance of trial counsel claim,
McNary argues that counsel should have questioned
Officer Hardesty more thoroughly at the suppression
hearing. Specifically, McNary contends that counsel
should have inquired why Officer Hardesty failed to
read McNary the “Warnings to Motorist” until after he
made incriminating statements. He also argues that
counsel should have questioned Officer Hardesty about
why he failed to give McNary Miranda warnings.
No. 11-2759                                                 25

  Regardless of any potential merit to this claim, we
cannot consider it, because McNary did not present it to
the state court. Generally, a petitioner must raise a claim
in state court before raising it on federal habeas review.
28 U.S.C. § 2254(b)(1)(A); see also 

.
This exhaustion requirement includes raising both the
broad claim (here, ineffective assistance of counsel) but
also the specific arguments and “operative facts” within
that claim. Stevens v. McBride, 

, 894 (7th Cir.
2007). McNary has not done so. Although he raised the
claim of ineffective assistance of counsel in the state
court, he did not raise the underlying facts regarding
failure to question Officer Hardesty. Therefore, McNary
has not exhausted his state court remedies on this
claim, as required by 28 U.S.C. § 2254(b)(1)(A). With-
out evidence speaking to the exceptions described
in § 2254(b)(1)(B), which McNary has not provided,
we cannot consider this claim.


2. Ineffective assistance of appellate counsel
   McNary also argues that he received ineffective assis-
tance of appellate counsel. Specifically, McNary claims
that appellate counsel should have appealed the denial
of the voluntary intoxication jury instruction. Under
Illinois law at the time of McNary’s trial, defendants
had an affirmative defense if the defendant was intox-
icated to such an extent “as to suspend the power of
reason and render him incapable of forming a specific
intent which is an element of the offense.” 720 ILCS 5/6-3
26                                                No. 11-2759

(West 1998).4 The state trial court found that McNary
was not entitled to a jury instruction on this defense,
and, on appeal, counsel did not challenge that denial.
  McNary bases his argument on two premises. First, he
posits that the issue of the denied instruction was
obvious because much of trial counsel’s elicited testi-
mony spoke to that defense. Second, McNary contends
that the error’s flagrancy, in light of Illinois state
precedent, compounded its obviousness. Thus, McNary
argues, counsel was ineffective for missing it. In 2009,
the Illinois Appellate Court disagreed. It found that
counsel acted reasonably because the underlying
state law claim on the instruction was meritless. (R. 8-6
at 102-03.)
  Although the Illinois Appellate Court’s opinion rested
on a matter of state law, we must still determine
whether its decision violated McNary’s Sixth Amend-
ment rights. See Estelle v. McGuire, 

, 67-68 (1991).
In satisfying that independent obligation, we will use
different reasoning than that of the Illinois Appellate
Court, which, again, ruled only on state law. We, however,
are concerned about whether reasonable jurists could
disagree with the state court’s conclusion, not whether
they could disagree over its reasoning. Our job is merely
to determine “if there was a reasonable justification for
the state court’s decision.” 

; see
also 

(“A habeas court must
determine what arguments or theories could have sup-


4
  This statute was amended in 2002 and removed voluntary
intoxication as an affirmative defense. See 720 ILCS 5/6-3.
No. 11-2759                                                27

ported the state court’s decision.”) (emphasis added)
(internal brackets and ellipses omitted).
  The Strickland standard also governs a claim for inef-
fective assistance of appellate counsel. 

. As before, the reviewing court should first look
for unreasonable conduct and then for prejudice as a
result of any error. 

. As we
consider the first prong, we note that, “appellate
counsel . . . need not (and should not) raise every
nonfrivolous claim, but rather may select from among
them in order to maximize the likelihood of success on
appeal.” 

(citing Jones v. Barnes, 

(1983)). That said, it is “possible,” albeit “diffi-
cult,” to show that “counsel’s failure to raise a particular
claim” amounted to ineffective assistance. 

do not second-guess “informed strategic choices.”

.
  A strategic choice is precisely what we have here.
McNary misconstrues the record when he contends
that appellate counsel “overlooked” the issue of the
voluntary intoxication instruction. (Appellee’s Br. at 45.)
Counsel did not miss the issue. Rather, he chose to ap-
proach it from a different angle. Appellate counsel argued
that trial counsel was ineffective for attempting to use
voluntary intoxication as a defense at all. (R. 8-4 at 13.)
Specifically, counsel argued that,
    [i]t is difficult to imagine that defense counsel
    would have questioned his client about his
    marathon-drinking binge had he been even
    faintly familiar with the law regarding voluntary
28                                                No. 11-2759

     intoxication. The defendant was clearly preju-
     diced by his attorney’s questioning him about
     excessive consumption of alcohol, where there
     was no possibility that the jury would receive
     an instruction that would have allowed it to con-
     sider voluntary intoxication as a defense.
(Id.)
  It was reasonable for counsel to make this argument,
especially after the trial court had made clear that it
viewed the law as unquestionably against McNary on
this point. The court quoted a litany of cases and even
a treatise on Illinois criminal law to explain why McNary
did not qualify for the instruction. (R. 16-2 at 555-58.)
Because McNary had lost so decisively below on the
issue, counsel made an informed strategic choice to take
the opposite approach on appeal—claim that trial
counsel should have known such clear law. That argu-
ment would have lost much of its credibility had
counsel also appealed the denial of the instruction.
  This strategy, while ultimately unsuccessful, was not
unconstitutionally misinformed. As we have said before,
“[t]he law in Illinois is clear: In order to constitute
an affirmative defense, voluntary intoxication must be so
extreme as to suspend all reason.” United States ex rel.
Simmons v. Gramley, 

, 1135 (7th Cir. 1990)
(citing People v. LePretre, 

, 1323-24 (Ill. App.
Ct. 1990)). As such, “[w]hen the record indicates that
the defendant acted with any purpose or rationality, the
defense is unavailable.” 

Roesler, 

, 1246 (Ill. App. Ct. 1990)). We have thus
No. 11-2759                                              29

found counsel’s performance reasonable, despite an
unsuccessful attempt to receive a voluntary intoxication
instruction, when the “petitioner’s own testimony effec-
tively negated” the defense. 

Arnold,

, 984 (Ill. 1984)); cf. United States v. Reed,

, 401-02 (7th Cir. 1993) (defendant received
a fair trial, despite not receiving a voluntary intoxication
instruction, because the evidence did not support the
level of intoxication needed to qualify for the defense,
even when the defendant could not remember commit-
ting the crime due to drunkenness).
  For that reason, counsel in this case acted reasonably
in not appealing the denied instruction. McNary’s own
testimony at trial, along with his statements to Officer
Hardesty and Investigator Ptak, all showed that he could
form the requisite mental state. McNary knew he was
drunk and that he hit a pedestrian while traveling at a
high rate of speed. He was thus aware that his actions
had created “a strong probability of death or great
bodily harm.” 720 ILCS 5/9-1(a)(2). Yet he continued to
drive. This deliberate decision satisfies the mental
state of first-degree murder, 

the voluntary intoxication defense, see Sim-

. Attempting to find a new way
around the issue, appellate counsel argued that trial
counsel prejudiced McNary by invoking the defense at
all. Given the high level of deference afforded counsel
in ineffective assistance claims, that strategy was a long-
shot, but that same deference stymies McNary now.
  Our conclusion is furthered buttressed by the deci-
sion of the Illinois Appellate Court, which found chal-
30                                              No. 11-2759

lenging the denied instruction meritless under state law.
This ruling shows that, if there was any error, there was no
prejudice. Had counsel raised the issue, it still would
have failed. We therefore find that reasonable jurists
could not disagree with the conclusion of the Illinois
Appellate Court: McNary received effective assistance
of appellate counsel.


                    III. C ONCLUSION
  For the foregoing reasons, we A FFIRM the district
court’s decision to deny the writ of habeas corpus.




                           2-26-13