In the

    United States Court of Appeals
                 For the Seventh Circuit
                    ____________________
No. 15-2147
CHARLES WALKER,
                                             Petitioner-Appellant,

                                v.

KATHY GRIFFIN, Superintendent,
Miami Correctional Facility,
                                             Respondent-Appellee.
                    ____________________

         Appeal from the United States District Court for the
         Southern District of Indiana, Indianapolis Division.
      No. 1:13-cv-1476-JMS-TAB — Jane Magnus-Stinson, Judge.
                    ____________________

     ARGUED MAY 24, 2016 — DECIDED AUGUST 29, 2016
                ____________________

   Before WOOD, Chief Judge, and EASTERBROOK and KANNE,
Circuit Judges.
    WOOD, Chief Judge. Charles Walker was convicted in an In-
diana court of robbery, adjudicated a habitual offender pur-
suant to Indiana Code § 35-50-2-8, and sentenced to 40 years
in prison. Twenty of those years were attributable to his ha-
bitual-offender status. The version of the habitual-offender
statute Indiana had in place at the time applied if a defendant
2                                                    No. 15-2147

had been convicted of two prior unrelated felonies, in a spe-
cific sequence: the second felony had to have been committed
after the commission of and sentencing for the first, and the
present crime had to have been committed after the commis-
sion and sentencing of the second earlier offense. At Walker’s
trial, the state provided evidence of three prior felonies, but it
failed to offer evidence of the date when one of the crimes was
committed.
    The only claim Walker presses before us is ineffective as-
sistance of appellate counsel. He contends that his lawyer on
direct appeal should have challenged the sufficiency of the
evidence for the habitual-offender conviction, given the miss-
ing date. Even assuming that counsel’s performance fell be-
low the constitutional minimum, we conclude that Walker’s
petition for a writ of habeas corpus was properly dismissed.
The state appellate court’s conclusion that Walker’s Sixth
Amendment right to counsel was not infringed meets the gen-
erous standards that apply under 28 U.S.C. § 2254, and so we
affirm.
                                I
    In 2006 an Indiana jury convicted Walker of a robbery that
took place on November 29, 2005. Ind. Code § 35-42-5-1. He
was also charged with being a habitual offender. Ind. Code
§ 35-50-2-8 (2005). The version of the habitual-offender statute
in place in 2006 said, in relevant part: “the state may seek to
have a person sentenced as a habitual offender for any felony
by alleging, on a page separate from the rest of the charging
instrument, that the person has accumulated two (2) prior un-
related felony convictions.” 

proof of the two
priors beyond a reasonable doubt. 

(The law
No. 15-2147                                                     3

was amended in 2014 and 2015, but we cite the version that
applies to Walker’s case.)
    Walker’s original charging document listed five prior fel-
ony convictions: (1) a 1975 burglary, (2) a 1980 robbery, (3) a
1989 burglary, and (4) two 1995 cocaine-related convictions
for drug conduct that took place in 1994. The state later filed
an amended information that omitted the 1975 burglary. At
trial, the prosecutor presented evidence to the jury including
the docket and sentencing transcript from the 1980 robbery
and the docket and abstract of judgment of the 1989 burglary.
But for the 1989 burglary, neither the docket nor abstract of
judgment listed the date on which the crime was committed.
They indicated only the charging date (March 31, 1989) and
the conviction date (June 30, 1989). The charging information
for that burglary did list the commission date, but it was not
presented to the jury. Walker later included the information
for the 1989 offense in his post-conviction petition; it indicates
a commission date of March 10, 1989.
    On direct appeal, Walker challenged the sufficiency of the
evidence supporting the robbery conviction and the reasona-
bleness of the 40-year sentence. The Indiana Court of Appeals
affirmed. Walker v. State (Walker I), 

(Ind. Ct.
App. 2007). Walker then filed a state post-conviction petition
in which he argued that both his trial and appellate counsel
were ineffective for failing to challenge the sufficiency of the
evidence for the habitual-offender conviction based on the
missing commission date. The first court to review the peti-
tion, an Indiana superior court in LaPorte County, ruled that
the 1995 drug convictions were statutorily ineligible to serve
as prior felonies for habitual offender purposes but otherwise
denied relief.
4                                                   No. 15-2147

    The court of appeals, adopting the superior court’s finding
with respect to the 1995 convictions, considered only the 1980
and 1989 convictions in its post-conviction review. Walker v.
State (Walker II), 

(Ind. Ct. App. 2013). The
court agreed with Walker that his trial counsel performed de-
ficiently for failing to move for a directed verdict based on the
absence of the 1989 commission date, but found that there was
no prejudice. 

Had counsel so moved, the appellate
court reasoned, the trial court would have reopened the case
and allowed the state to introduce the charging information.

found that appellate counsel did not perform de-
ficiently because he had challenged the habitual-offender con-
viction in his argument about the reasonableness of the sen-
tence. 

Moreover, the court pointed out, Walker’s
appellate counsel would have seen the presentence investiga-
tion report, where “the only thing glaring from the record is
that Walker had committed crime after crime after crime dur-
ing his adult life.” 

date for the 1989 burglary
was “not significant and obvious.” 

federal habeas corpus petition, Walker challenged
only the effectiveness of the assistance of appellate counsel.
The district court, noting that the proceedings were governed
by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254(a), found that the state court did
not unreasonably apply clearly established federal law in
finding effective assistance of appellate counsel. It refused to
issue the writ and denied a certificate of appealability. This
court granted a certificate limited to the question of whether
appellate counsel was effective.
No. 15-2147                                                    5

                               II
    We review the district court’s denial of Walker’s section
2254 petition de novo, but with great deference to the state
courts’ decisions. Coleman v. Hardy, 

, 814 (7th Cir.
2012). We look to the last state court decision to rule on the
merits of the claim, McCarthy v. Pollard, 

, 483 (7th
Cir. 2011), to see if that ruling is “contrary to” clearly estab-
lished federal law, “involved an unreasonable application of”
clearly established federal law, or “was based on an unrea-
sonable determination of the facts in light of the evidence pre-
sented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–
(2). Walker argues only that the state court decision was an
unreasonable application of clearly established federal law.
    Walker argues that his appellate attorney, Don Pagos, per-
formed deficiently in failing to notice or challenge the absence
of the commission date for the 1989 crime. Indiana allows a
sufficiency challenge to a habitual-offender finding only on
direct appeal, he says, and so it was then or never. Had Pagos
raised the issue on appeal, Walker contends, the Indiana
Court of Appeals would necessarily have reversed the habit-
ual-offender finding. He then asserts that he could not have
been retried after such a reversal, because the sequence of the
prior felonies is an element of the habitual-offender convic-
tion that must be found by a jury, and therefore retrial would
violate the double jeopardy clause. All that would have been
left for the court of appeals to do, Walker concludes, would
have been to strike 20 years from his sentence.
                               A
    The clearly established federal law that controls ineffec-
tive assistance of counsel claims is Strickland v. Washington,
6                                                   No. 15-2147

(1984). Under Strickland, the defendant must
demonstrate both that counsel’s performance was constitu-
tionally deficient, and that the deficient performance preju-
diced him. 

We do not decide that question on our
own, however; we are allowed to consider only whether the
state court unreasonably applied Strickland’s standards. Har-
rington v. Richter, 

, 101 (2011). Because the state
court made a finding only on appellate counsel’s perfor-
mance, and not prejudice, we assess prejudice independently,
Harris v. Thompson, 

, 625 (7th Cir. 2012), although
the outcome of this case would be no different even if we were
to impute a finding on prejudice to the state court and apply
AEDPA deference.
                               1
    We begin with the state’s argument that “[b]ecause
Walker cannot show that he is not a habitual offender, he can-
not demonstrate either deficient performance or prejudice.”
The state contends that the Indiana superior court reasonably
applied federal law when it required Walker to make such a
showing. The superior court found that to show prejudice
(from trial or appellate counsel’s performance), Walker “must
demonstrate that he was not a habitual offender” and that
“his various convictions did not in fact occur in the required
order.” Walker v. State, 46D01-1207-PC-211 at 6 (Ind. Sup. Ct.
Jul. 25, 2012) (quoting Weatherford v. State, 

, 918
(Ind. 1993)).
   Placing the burden on a defendant to prove that his argu-
ment would prevail is in considerable tension with Strick-
land’s rule, under which the defendant must show only that
there is a reasonable probability of a different result. As the
Supreme Court put it there, “a defendant need not show that
No. 15-2147                                                   7

counsel’s deficient conduct more likely than not altered the
outcome in the 

. Instead, “the defendant
must show 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 prob-
ability sufficient to undermine confidence in the outcome.” 

Applying that standard here, we see that Walker
needed only to show that absent counsel’s error he would
have had a reasonable shot at acquittal on the habitual-of-
fender charge. We therefore assume for present purposes that
Walker did not have the burden to demonstrate conclusively
that he is not in fact a habitual offender.
                               2
    By the time the Indiana Court of Appeals considered
Walker’s post-conviction petition, Pagos had died. The court
thus had to reconstruct what his appeal strategy may have
been without the aid of his testimony. Appellate ineffective-
assistance claims require the reviewing court to look at the is-
sue that appellate counsel failed to raise, and determine
whether that issue was “obvious and clearly stronger” than
issues that appellate counsel did raise. Sanders v. Cotton, 

, 585 (7th Cir. 2005).
    The state appellate court reasoned that because Pagos
raised a sentencing claim on Walker’s behalf, he must have
become familiar with Walker’s criminal history. That in turn
mean that Pagos must have known that Walker had enough
prior convictions to satisfy the state’s habitual-offender stat-
ute. The absence from the record of the date on which he com-
mitted the 1989 burglary, the court thought, was “not signifi-
cant and obvious.” Walker 

. There is some
8                                                   No. 15-2147

tension in the court’s finding both that Pagos must have re-
viewed Walker’s criminal history and sentencing in detail,
and that he must have missed the absence of a key piece of
evidence in the state’s case. The former suggests an inten-
tional strategy, and the latter negligence. But that tension does
not render the state court’s conclusion an unreasonable appli-
cation of clearly established federal law. It is plausible that
Pagos declined to raise the issue because he believed there
was no point in doing so. The Court of Appeals would simply
have affirmed based on the evidence from which the commis-
sion date could be inferred, or reopened the case for the state
to supply the missing documentation. It is also plausible that
he did not raise the issue because it was not obvious, and he
raised other issues that he considered more promising. We
find nothing unreasonable, in the sense that AEDPA uses the
term, in the state appellate court’s assessment of Pagos’s per-
formance.
                               3
    That leaves the question of prejudice. On this point,
Walker’s argument begins badly by relying on outdated Indi-
ana law for the proposition that the omission of the key date
would have required the state appellate court to reverse the
habitual-offender finding outright. The state counters that by
the time of Walker’s direct appeal in 2007, the proper re-
sponse to the deficiency in the record would have been for the
state appellate court to remand to allow the prosecutor to sup-
ply the missing evidence.
    Walker cites Steelman v. State, 

(Ind. 1985),
for the proposition that the state court would vacate the ha-
bitual-offender finding because of a lack of proof of the com-
No. 15-2147                                                   9

mission date of the 1989 burglary. But since that time the In-
diana Supreme Court has declined to vacate a habitual-of-
fender sentence—in fact it declined even to remand to add the
commission date—where a defendant was found to be a ha-
bitual offender on a record that lacked evidence of the com-
mission date of one of the prior felonies. Burnett v. State, 

, 262 (Ind. 2000) (“Although the better practice is to
offer direct evidence of the commission date of the second of-
fense, a reasonable jury could have concluded that Burnett
committed his second felony after receiving his sentence for
the first” where there was a gap of almost eight years between
the sentencing for the first offense and the arrest date for the
second offense), overruled on other grounds by Ludy v. State,

(Ind. 2003); see also Clark v. State, 

, 12 (Ind. Ct. App. 1992) (inclusion of arrest and sentencing
dates “amply meets the requirement” of proving sequence of
prior felonies). Although the state seemed to concede at oral
argument that an inference about sequence would be insuffi-
cient under Indiana law—a point in Walker’s favor—Clark
and Burnett indicate otherwise.
     On this record, the inference that the sequence of offenses
met the criteria of the habitual-offender statute is strong. The
state introduced evidence that Walker committed the 1980
robbery on February 4, 1980, was convicted of it on June 27,
1980, and sentenced on July 25, 1980. It introduced evidence
that Walker was charged with the 1989 burglary on March 31,
1989, convicted on June 30, 1989, and sentenced on July 28,
1989. As in Burnett, the long gap between the arrest date for
the 1989 burglary and the sentencing date for the 1980 rob-
bery—nine years—leaves little doubt that the burglary oc-
curred after the robbery and Walker’s subsequent sentencing.
It is unlikely that, had Pagos raised the issue of the missing
10                                                  No. 15-2147

commission date, the state court would have given Walker a
new trial. The court might not even have deemed it necessary
to reopen the case for admission of evidence.
    Second, Walker’s argument rests on a misunderstanding
of double jeopardy law. He asserts that in a habitual-offender
case, the sequence of felonies is a fact that must be found by a
jury, and therefore that it would violate the Double Jeopardy
Clause to remand for retrial. See U.S. CONST., amend. V (dou-
ble jeopardy clause); Benton v. Maryland, 

, 794
(1969) (applying the Double Jeopardy Clause to the states via
the Fourteenth Amendment). It is true that double jeopardy
precludes the state from re-trying a case that is reversed based
on insufficiency of the evidence to prove the crime. Burks v.
United States, 

, 17–18 (1978). But a conviction for a
crime is different from a jury finding that a defendant is a ha-
bitual offender. United States v. Monge, 

(1998),
holds that the Double Jeopardy Clause does not preclude re-
trial of sentencing issues in noncapital cases. Following
Monge, the Indiana Supreme Court stated in 2005 that earlier
Indiana court decisions barring re-trial of habitual-offender
status findings that had been set aside on appeal for insuffi-
cient evidence were no longer good law. Jaramillo v. State, 

, 1191 (Ind. 2005); see also Dexter v. State, 

, 240 (Ind. 2012).
    Walker argues that the fact of a prior conviction, which the
Supreme Court held need not be found by a jury in Al-
mendarez-Torres v. United States, 

(1998), is differ-
ent from the sequence of prior convictions. We do not see why.
Double jeopardy would not have barred the Indiana Court of
Appeals from remanding his case to introduce the commis-
sion date of the 1989 burglary. See Monge, 

.
No. 15-2147                                                11

Walker’s conjectural argument—that, had Pagos raised the
habitual-offender sequencing issue and the Court of Appeals
remanded to the trial court, the prosecutor might have de-
clined to re-try it, or Walker might have put on a better de-
fense—is not strong enough to demonstrate a “reasonable
shot” at a different outcome. There was no prejudice from Pa-
gos’s failure to raise the issue.
                             III
   Because Walker cannot demonstrate that the Indiana
Court of Appeals rendered a decision that constituted an un-
reasonable application of federal law in finding adequate per-
formance by his appellate counsel, and because Walker was
not prejudiced by any misstep counsel may have made, we
AFFIRM the judgment of the district court.