### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 21

‐ 1761

R ICKY J. T HURSTON

,

Petitioner

‐ Appellant

,

v.

F RANK V ANIHEL

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Terre Haute Division.

No. 18

‐ cv

‐ 00525

— James R. Sweeney II

, Judge

.

____________________

A RGUED M AY 19, 2022

— D ECIDED J ULY 13, 2022

____________________

Before F LAUM

, E ASTERBROOK

, and S CUDDER

, Circuit Judges

.

F LAUM

, Circuit Judge

. Indiana prosecutors charged peti

‐

tioner

‐ appellant Ricky Thurston with felony rape after his

DNA was matched to cigare tt e bu tt s found in the park that

was the scene of the crime. He was convicted following a jury

trial. In this appeal from the denial of his 28 U.S.C. § 2254 ha

‐

beas petitio n, Thurston argues that he received ine ff ective as

‐

sistance of counsel. Speci fi cally, his a tt orney did not object to

the admission of a report summarizing the DNA analysis of2 No. 21

‐ 1761

the cigare tt es because the defense a tt orney did not notice that

the report also identi fi ed Thurston’s DNA as matching a

“sperm fraction” collected in “case IP06051889”—another

rape for which Thurston was charged. The Indiana Court of

Appeals a ffi rmed his conviction, reasoning that the reference

to the sperm fraction wa s “too vague” to “support the forbid

‐

den [propensity] inference.” Because that decision was not an

“unreasonable application of” the Supreme Court’s decision

in Strickland v. Washington

, 466 U.S. 668 (1984), under 28 U.S.C.

§ 2254(d), we a ffi rm the district court’s order denying his pe

‐

tition for a writ of habeas corpus.

I. Background

A. The Underlying O ff ens e and Investigation

On October 19, 2006, the victim, T.K., was thirty

‐ nine years

old. T.K. spent the day caring for her teenage daughter’s in

‐

fant son. Later that evening, after her family returned home,

T.K. began drinking whiskey and got into a heated argument

with her husband and daughter over the childcare arrange

‐

ment. In the midst of that argument, T.K. realized that she was

out of cigarettes. She asked her husband fo r the car keys so

that she could drive to a nearby service station and bu y more,

but T.K.’s husband refused to give them to her because she

had been drinking. Although it was around midnight, T.K.

began walking to the service station, taking her half

‐ pint bot

‐

tle of whiskey with her. T.K.’s husband followed her for some

distance, trying to convince her to return, but to no avail.

T.K.’s husband returned to the house, and T.K. walked ap

‐ proximately four bloc ks to the service station and purchased

cigarettes.No. 21

‐ 1761 3

As T.K. was walking back, she saw a silver car drive past

her, stop, turn around, and then drive back to her. The driver

and sole occupant of the vehicle asked her if she wanted a

ride. Although she was close to home, T.K. got in the car.

The driver said his name was Tro y, that he was twenty

‐ six

years old, and that he worked in construction. T.K. later told

police that he was Caucasian, had brown hair, and had a tear

‐ drop tattoo under his eye. T.K. and the man drove around and

talked for a while, smoking ci garettes and drinking from the

half

‐ pint of whiskey. When they ran out of whiskey, the man

drove to a nearby house, which he told T.K. belonged to his

employer. T.K. waited in the car while the man ran into the

house and came back with a six

‐ pack of beer. He the n drove

T.K. to a park and stopped the vehicle, where they continued

to smoke, drink, and talk. The man drank five of the beers,

while T.K. had one.

At some point, T.K. became tired and wanted to go home.

When T.K. turned to ask the man to take her home, she saw

that he had pulled his penis out of his pants and was mastur

‐ bating. T.K. immediately demanded to be taken home

, and

the man stated that he wanted to have sex. T.K. said no and

again asked to be taken home. The man then reached across

T.K. and pulled a handgun out of the glove compartment. The

man pressed the muzzle of the gu n to the side of T.K.’s head

and forced her to remove her pants. T.K., who was experienc

‐ ing symptoms of premature menopause including heavy

menstrual bleeding, cramping, and pain, told the man that

she was having menstrual problems in hop es that it would

discourage him from continuing. In response, the man or

‐

dered T.K. to remove her tampon and throw it out of the ve

‐

hicle. T.K. complied, and then climbed on top of the man and4 No. 21

‐ 1761

submitted to vaginal intercourse while he continued to hold

the gun to her head.

When he finished, the man put the gun back into the glove

compartment and got out of the vehicle to urinate. When the

man walked out of T.K.’s line of sight, she ran from the vehicle

and climbed a fence into th e backyard of a nearby house,

where she hid behind a picnic table. T.K. watched as the man

returned to the vehicle and called her name, then drove away.

T.K. then went to the house and knocked on the door. When

the homeowner answered the door, T.K. ask ed her to call 911

because she had been raped. The 911 call was placed at ap

‐ proximately 7:00 AM

.

Police responded, and an ambulance took T.K. to the hos

‐ pital, where a forensic nurse completed a rape kit. The nurse

also noted that T.K. sustained scratches on her hands and

bruising on her right lower extremity, her left wrist, and on

her inner thigh on both sides—injuries consistent with c limb

‐ ing over a fence.

Later that morning, Indianapolis Police Detective Richard

Burkhardt interviewed T.K. T.K. took Burkhardt to the park,

where crime scene investigators recovered five beer cans and

several cigarette butts from one side of the narrow park, and

one beer can and a soiled tampon from the other. T.K. was

unable to identify the house where the man had stopped to

get beer.

Forensic analysis of the samples taken fro m T.K.’s body

and clothing did not disclose the presence of seminal material,

and the case went dormant for approximately four years until

DNA analysis was finally performed on th e cigarette butts.

The unknown partial male DNA profile found on theNo. 21

‐ 1761 5

cigarettes matched an existing unknown male DNA profile

from another open rape case in Marion County, case

IP06051889 (“case

‐ 889”). The DNA results from the cigarette

butts were uploaded to a statewide database and, a year later,

were found to match Thurston’s DNA after he was arrested

on an unrelated matter.

After the DNA in T.K.’s case was matched to Thurston,

Thurston waived his rights and participate d in a custodial in

‐

terview with the police. He told them that in 2006 he was liv

‐ ing and working with his boss, and he provided an address

in the neighborhood T.K. had identified. He also ad mitted

that he used his boss’s Thunderbird at the time, which

matched the description of the vehicle T.K. had given. He de

‐

nied having ever been to the park. Thurston also denied rec

‐ ognizing T.K. when he was shown a photo of her taken

shortly after the rape. Similarly, when the detective later

showed T.K. a photo of Thurston in a six

‐ photo array, she

could not iden tify him.

B. State Court Trial Proceedings

Prosecutors charged Thurston with rape 1 in 2011, and he

went to trial in February 2012. Before trial, the court granted

Thurston’s motion in limine precluding the State and its wit

‐

nesses from referencing Thurston’s previous convictions,

pending charges under investigation, or criminal offenses not

yet reduced to conviction—including the “

‐ 889” rape case.

Before the jury heard evidence, the judge instructed the

jurors that they could ask questions and explained, “You

1 Ind. Code § 35

‐ 42

‐ 4

‐ 1. Thurston was also charged with and convicted

of criminal confinement, but during sentencing the trial judge merged

those convictions.6 No. 21

‐ 1761

must put your questions in writing. I will review them with

the attorneys, and I will determine whether your questions

are permitted by law. If a question is permitted, I will ask it of

the witness. If it is not permitted, you may not speculate as to

why it was not asked, or what the answer may have been.”

The court also instructed the jury that “[a] defendant must not

be convicte d on suspicion or speculation,” and that any ver

‐

dict must be “based upon what you hear and see in this

court.”

At trial, Thurston did not challenge the DNA evidence

that placed him at th e park with T.K. Instead, his defense was

that “whatever happened” between him and T.K. was con

‐

sensual. Thurston’s defense attorney argued that T.K. alleged

a rape occurred because she could not otherwise explain to

her husband where she had been for seven hours.

During the testimony of Shelly Crispin, a serologist and

DNA analyst with the Indianapolis Marion County Foren sic

Services Agency (“IMCFSA”), the trial court admitted State’s

Exhibit 16 into evidence. Exhibit 16 was a report summarizing

the DNA testing performed on the cigarette butts from the

park. The report stated that one c ollected cigarette filter, iden

‐

tified as “item 003.001,” had DNA from an unknown male

major DNA contributor, as well as a minor contributor with

an “inconclusive” DNA profile. In addition, the report noted:

The partial DNA profile from the major contrib

‐

utor of item(s) 003.001 was entered into the

IMCFSA DNA Database and was found to be

consistent with an unknown par tial male profile

from the sperm fraction of item(s) 3.5.1 from

case IP06051889. The partial DNA profile from

the major contributor of item(s) 003.001 wasNo. 21

‐ 1761 7

entered into the Indiana DNA database and is

being maintained on file for future searches.

Thurston’s attorney did not notice this reference to case ‐ 889,

and he did not object when the exhibit was admitted or when

it was published to the jury.

At the conclusion of Crispin’s testimony, two jurors su b

‐

mitted questions about the reference to the sperm fraction. Ju

‐

ror 5 asked: “Is it fair to say that since the DNA from item

003.001 matched Ricky Thurston’s profile, the partial male

profile from the sperm fraction of item(s) 3.5.1 from case

IP06051889 (referenced in state’s exhibit 16 paragraph 2 of

conclusions) is also th at of Ricky Thurston?” Juror 12 asked:

“How does a person get into the State database? What is case

IP06051889?” The trial judge ruled that neither question

would be asked.

On appeal to this Court, Thurston emphasizes that all of

the trial exhibits consi sting of evidence collected during the

Indianapolis police officers’ investigation of T.K.’s case were

marked with the “IP” number corresponding to the instant

case—IP06109685—such that the jury could infer that the

‐ 889

case number also related to a criminal investigation. Addi

‐ tionally, Thurston underscores, Crispin and the prosecutor re

‐

ferred to her lab as the “crime lab” repeatedly.

During a break in the testimon y after Crispin had been ex

‐

cused, Thurston’s attorney argued that Exhibit 16 should not

be sent back to the jury during deliberations, or that it should

be redacted. The judge rejected the argument for redaction,

stating: “T he jury’s seen this. They had it. We can’t redact it

now. It’s either going back or it’s not going back.” Ultimately,

the judge overruled the defense’s objection and sent Exhibit8 No. 21

‐ 1761

16 to the jury unredacted. After confirming that item 3.5.1 was

not referenced anywhere else, the judge reasoned:

I mean, the conclusions the jury could draw

would be myriad.... I’ll note your objection, but

I think there are too many different scenarios

the jury could draw, other than concluding it’s

a different rape case that’s pending, whic h is

something we [the judge, prosecutors, and de

‐

fense counsel] all know.

Following this ruling, Thurston’s attorney moved for a mis

‐

trial, saying, “I think allowing that in represents ineffective

‐

ness on my part.” The judge denied the mistrial motion.

In addition to Crispin’s testimony, the State presented the

video of Thurston’s interview with the poli ce (with all refer

‐

ences to other cases omitted). T.K., T.K.’s husband, Detective

Burkhardt, a nurse, and other police investigators also testi

‐

fied.

On appeal, as at trial, Thurston points out several incon

‐

sistencies in the State’ s evidence. For instance, T.K. testified

that she left her house in jeans, but Detective Burkhardt stated

that she was in sweatpants when he interviewed her at the

hospital, and she had not changed since calling 911. Crispin

also testified that forensic analysis was performed on T.K.’s

“sweatpants.” Juror 12, who asked about case ‐ 889, caught the

discrepancy and submitted the question: “[T.K.] left her home

wearing jeans but arrived at the ho spital wearing sweatpants,

what happened?” The judge did not ask that question, either.

T.K. also denied sharing any cigarettes with Thurston, but

the DNA evidence from some cigarette butts showed her

DNA present alongside the DNA of a male minor contributor,No. 21

‐ 1761 9

and Thurston could not be excluded as the minor contributor.

Additionally, T.K. testified at trial that Thurston went behind

his vehicle to urinate, whereas in her deposition, T.K. had tes

‐

tified that she “couldn’t see him, so he must have went like

way back like where the wood s were to pee.” Thurston’s

counsel impeached T.K. with this inconsistency at trial.

Thurston’s attorney also confronted T.K. about the color of

the gun Thurston supposedly used. Originally, T.K. told De

‐

tective Burkhardt that the gun was silver. Then at trial, she

testified that she was sure it was black. Then, after bein g con

‐

fronted by her deposition testimony, she said that it was black

and silver.

In his closing argument, Thurston’s attorney argued that

T.K. lied about being raped. He argued that she did not need

a ride home because she was almost there; instead, she con

‐ sensually spent seven hours with Thurston. He highli ghted

the inconsistencies in T.K.’s statements. And he emphasized

that there was “no evidence” that T.K. and Thurston even had

intercourse, let alone that she was raped.

Before the jury began deliberating, the trial court again in

‐

structed the jury and, as part of the post

‐ trial instructions, re

‐

iterated the preliminary instructions against specul ation.

During deliberations, the jury asked another question:

We feel that the jury instructions under 6 and 14

give contradictory instructions in this case. This

perceived contradiction is leading to an impasse

in our deliberation. Do you have any advice in

how to ove rcome the impasse?

Instruction 6 pertained to the defendant’s presumption of in

‐

nocence and explained that Thurston was not required to10 No. 21

‐ 1761

present any evidence. Instruction 14 pertained to the State’s

burden of proof and elaborated on the concept of reasonable

doubt. With the parties’ agreement, the trial court replied to

the question by informing the jury that the instructions were

pattern instructions that should be reread along with all the

instructions and that the jury shou ld seek a verdict based

upon its collective memory of the evidence.

The jury found Thurston guilty. The trial court deter

‐

mined that Thurston was a habitual offender after conducting

a bench trial on that question, and it sentenced him to fifty

‐

five years’ i ncarceration.

C. Collateral Review Proceedings

Thurston first pursued a direct appeal on issues that are

not relevant to his habeas claims. See Thurston v. State

( Thurston I ), 982 N.E.2d 31, 2013 WL 297772 (Ind. Ct. App.

2013) (unpublished table decision). After his convictions were

affirmed on direct review, he sought post

‐ conviction relief in

state court.

Thurston argued that he had been denied effective assi s

‐

tance of counsel at trial. See Strickland

, 466 U.S. at 687. Specif

‐ ically, he claimed that his trial counsel had been ineffective

for failing to notice the reference to case ‐ 889 in Exhibit 16,

failing to prevent its admission in to evidence at trial, and fail

‐ ing to mitigate the damage caused by its admission.

Thurston’s trial attorney submitted an affidavit supporting

the Strickland claim, which stated that the attorney received

Exhibit 16 during discovery and “didn’t notice the reference

to [case

‐ 889]

... until after the judge admitted the report into

evidence and two jurors submit ted questions to Crispin in

‐ quiring about the second case number.” The attorney alsoNo. 21

‐ 1761 11

averred that he did not make a tactical decision to forego an

objection, request for redaction, or jury admonishment re

‐

lated to Exhibit 16.

The trial court denied relief, and the Indiana Court of Ap

‐ peals affirmed. The Court of Appeals did not evaluate the trial

attorney’s performance; instead, it held th at Thurston could

not meet his burden of showing prejudice under Strickland

. It

stated:

We acknowledge that a reference to a sperm

fraction has the potential to be more problem

‐

atic in a rape case than it might in a case where

another type of offense, such as a property or fi

‐

nancial crime, is alleged. However, in this ca se,

the nature of a “sperm fraction” or how

Thurston’s sperm fraction may have been ob

‐

tained by the State was not elaborated upon or

explained to the jury. There was no evidence be

‐

fore the jury as to the nature of case ‐ 889 or

Thurston’s role in th at case, let alone that he was

a suspect. As such, while the reference to case ‐

889 may have permitted an inference of prior

misconduct, it was too vague as to the nature of

any prior criminal activity to support th e forbid

‐

den inference that Thurston must have raped

T.K. because he had been accused of raping an

‐

other.

Thurston v. State ( Thurston II ), 110 N.E.3d 1185, 2018 WL

4003363, at *5 (Ind. Ct. App. 2018) (unpublished table deci

‐

sion). The Court of Appeals also found that the jury instruc

‐

tions “und ermined” Thurston’s claim of prejudice. Id. It

noted:12 No. 21

‐ 1761

Although the jury asked questions about the

reference to case ‐ 889 contained in Exhibit 16,

the trial court did not pose those questions to

Crispin, and the jury had been instructed that it

was not to speculate why any of its questions

had gone unasked or what the answers to its

questions might hav e been. The jury was re

‐

minded of these directives as part of the trial

court’s final instructions, and the trial court fur

‐

ther instructed the jury to base its verdict on the

facts and the law, not on sympathy or bias. A

jury is presumed to fol low a trial court’s instruc

‐

tions. Thurston’s speculation as to what the jury

could have concluded from the reference to case

‐ 889 and his attempts to draw conclusions from

the jury’s impasse question do not overcome the

presumption that the jury followed the trial

court’s instructions to base its verdict only on

the evidence presented at tria l and not upon

speculation about its unanswered questions.

Id. (citations omitted). The appellate court also found that

T.K.’s version of events was corroborated by her injuries con

‐

sistent with climbing a fence. Id. at *6. It also highlighted evi

‐

dence that undercut Thurston’s defense: He initially claimed

that he ha d never been to the park where his DNA was recov

‐

ered, and he initially claimed not to recognize T.K.’s photo. Id.

Overall, the appellate court concluded, “[g]iven the vague

‐

ness of the isolated reference at issue, the trial court’s instruc

‐

tions to the jury, and the other evidence presented at trial, our

confidence in th e jury’s verdict is not undermined.” Id. The

Indiana Supreme Court denied review.No. 21

‐ 1761 13

Thurston next filed a habeas petition in federal court pur

‐

suant to 28 U.S.C. § 2254, raising the same ineffective assis

‐

tance claim. The district court denied the petition, holding

that the Indiana Court of Appeals’ decision did not “involve[]

an unreasonable application of” Strickland

. See 28 U.S.C.

§ 2254(d). Nonetheles s, it acknowledged that “whether the

mention of case ‐ 889 prejudiced Thurston is a close call” and

issued a certificate of appealability. Thurston now appeals.

II. Discussion

We review a district court’s ruling on a petition for habeas

relief de novo. Brown v. Brown

, 847 F.3d 502, 506 (7t h Cir.

2017). If the federal district court made findings of fact, we

review those for clear error. Id.

When a habeas petition challenges a state court conviction,

“[o]ur review is governed (and greatly limited) by the Anti

‐

terrorism and Effective Death Penalty Act of 1996

(‘AEDPA’).” Hicks v. Hepp

, 871 F.3d 513, 524 (7th Cir. 2017).

“Under [AEDPA], a federal cour t is not authorized to issue a

writ of habeas corpus on a claim rejected by a state court on

the merits unless the state

‐ court decision was ‘contrary to, or

involved an unreasonable application of, clearly established

Federal la w, as determined by the Supreme Court,’ or was

‘based on an unreasonable determination of the facts.’” Cook

v. Foster

, 948 F.3d 896, 901 (7th Cir. 2020) (quoting 28 U.S.C.

§ 2254(d)). We “look to

... the ‘last reasoned state

‐ court deci

‐

sion’ to decide the merits of the case, even if the state’s su

‐

preme co urt then denied discretionary review.” Dassey v.

Dittmann

, 877 F.3d 297, 302 (7th Cir. 2017) (en banc) (quoting

Johnson v. Williams

, 568 U.S. 289, 297 n.1 (2013)).14 No. 21

‐ 1761

The applicable federal law in this instance is the Supreme

Court’s 1984 decision, Strickland v. Washington

, 466 U.S. 668,

which laid out the standard for obtaining relief for ineffective

assistance of counsel. To prevail on an ineffective assistance

of counsel claim, a defendant must show that (1) counsel’s

performance was deficient, and (2) the deficient performance

was prejudicial such tha t it deprived the defendant of a fair

trial. Id. at 687. To establish the requisite prejudice, Thurston

must demonstrate “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding

would have been different.” Buck v. Davis

, 137 S. Ct. 759, 776

(2017) (quo ting Strickland

, 466 U.S. at 694). In other words,

there must have been “a reasonable probability that, without

[the reference to case ‐ 889], at least one juror would have har

‐

bored a reasonable doubt” about whether Thurston raped

T.K. Id. Notably, “[t]he likelihoo d of a different result must be

substantial, not just conceivable.” Harrington v. Richter

, 562

U.S. 86, 112 (2011).

If a petitioner “makes an insufficient showing on one”

prong of the Strickland analysis, “there is no reason for a court

... to address both components of the inquiry.” Strickland

, 466

U.S. at 697. Following this guidance, the India na Court of Ap

‐ peals did not evaluate Thurston’s attorney’s performance; it

began and ended its analysis by concluding that Thurston

was unable to show prejudice. Accordingly, we ask whether

that conclusion was a reasonable application of Strickland

. We

will find that a state cou rt unreasonably applied federal law

only if its decision “was so lacking in justification that there

was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.”

Richter

, 562 U.S. at 103.No. 21

‐ 1761 15

We start with the court’s determination that the reference

to case ‐ 889 was “too vague

... to support the forbidden [pro

‐ pensity] inference.” Thurston II

, 2018 WL 4003363, at *5. On

Thurston’s view, whether the reference to case ‐ 889 was

“vague” is a determination of fact, which, in this Circuit, we

will find unreasonable only if “the factual premise was incor

‐

rect by clear and convincing evidence.” Cook

, 948 F.3d at 901. 2

On the other hand, the State contends that a conclusion about

the import of a fact under Strickland is more properly framed

as a legal conclusion. See Lopez v. Smith

, 574 U.S. 1, 8 (2014)

(holding that a court’s determination that a set of facts “failed

to measure up to th e [applicable legal] standard

.... ranked as

2 There are two provisions of AEDPA that govern review of a state

court’s factual findings, § 2254(d)(2) and § 2254(e)(1), but the Supreme

Court has “not defined the precise relationship between [them.]” See Burt

v. Titlow

, 571 U.S. 12, 18 (2013). Section 2254(d)(2) provides that a review

‐ ing court should con sider whether the factfinding “was based on an un

‐

reasonable determination of the facts in light of the evidence presented in

the State court proceeding,” whereas § 2254(e)(1) says that “a determina

‐

tion of a factual issue made by a State court shall be presumed to be correct

[unless] [t]he applicant

... re but[s] the presumption of correctness by clear

and convincing evidence.” In our Circuit, we have decided that

“§ 2254(e)(1) provides the mechanism for proving unreasonableness [un

‐

der § 2254(d)(2)],” see Ben

‐ Yisrayl v. Buss

, 540 F.3d 542, 549 (7th Cir. 2008),

although other circuits have taken different approaches, see Ha yes v. Sec’y,

Fla. Dep’t of Corr.

, 10 F.4th 1203, 1223 (11th Cir. 2021) (Newsom, J., concur

‐ ring) (describing the circuit split on how to synthesize § 2254(d)(2) and

§ 2254(e)(1)). The reasonableness standard for reviewing legal challenges

set forth in § 2254(d)(1) is arguably a “more petitioner

‐ friendly standard”

than the one we have ado pted for reviewing factual challenges. See Smith

v. Dickhaut

, 836 F.3d 97, 101 (1st Cir. 2016) (comparing the “unreasonable

determination” language in § 2254(d)(2) with “the more deferential stand

‐

ard in [§] 2254(e)(1)”). Under either standard, however, the result in this

case is the same.16 No. 21

‐ 1761

a legal determination governed by § 2254(d)(1), not one of fact

governed by § 2254(d)(2)”). Cf. Curia v. Nelson

, 587 F.3d 824,

829 (7th Cir. 2009) (noting that “whether a contract is ambig

‐

uous is a question of law”). Nonetheless, “regardless if we

classify [Thurston’s] challenge as raising an issue of pure fact,

pure law, or a mixed question of law and fact, we are req uired

under the AEDPA to review the state court’s adjudication on

the merits of his claim deferentially and set the decision aside

only if the court committed unreasonable error.” Ward v.

Sternes

, 334 F.3d 696, 704 (7th Cir. 2003).

Returning to the substance of the opinion under review,

the India na Court of Appeals was entitled to presume that the

jury would not disobey its instructions and speculate about

the reference to case ‐ 889. See Weeks v. Angelone

, 528 U.S. 225,

234 (2000) (“A jury is presumed to follow its instructions.”);

Bruton v. United States

, 391 U.S. 123, 135 (1968) (recognizing

that “[i]t is not unreasonable to conclude that

... the jury can

and will fo llow the trial judge’s instructions to disregard [in

‐

admissible evidence]”). Furthermore, it was not unreasonable

for the Indiana Court of Appeals to decide that it would re

‐ quire forbi dden speculation—not permissible inference—to

make the jump from the reference to a “sperm fraction” in

case ‐ 889 to the prejudicial conclusion that Thurston was the

suspect in another rape case. Thurston emphasizes that Cris

‐ pin testified that she worked in the “crime la b,” and he points

out that the format of the IP06051889 case number matched

the format of the IP06109685 number assigned to evidence

collected to investigate T.K.’s case. But Juror 12 asked, “How

does a person get into the state database?” and that question

was never answered. Nor was there any additiona l mention

of case ‐ 889 in any witness testimony or closing argument. WeNo. 21

‐ 1761 17

therefore defer to the Indiana appellate court’s ruling that the

case ‐ 889 reference was “too vague.”

Thurston goes on to argue that the Indiana Court of Ap

‐ peals unreasonably applied federal law because it did not

“consider all the evidence—the good and the bad—when

evaluating prejudice.” See Wong v. Belmont es

, 558 U.S. 15, 26

(2009). On Thurston’s view, the Indiana Court of Appeals did

not appreciate that his conviction “depended entirely on the

credibility of T.K.” Thurston points to the jury’s impasse note

as evidence that it was a close case, and he reads the appellate

court opinion as considering “ only the evidence corroborating

[T.K.’s] account.” Not so.

First, as the Indiana Court of Appeals highlig hted, the case

did not boil down to a pure credibility contest because there

was corroborating evidence that “T.K. sustained documented

injuries climbing over a fence fleeing from Thurston, which

was inconsistent with Thurston’s theory of th e case that T.K.

consented to having sex with him.” Thurston II

, 2018 WL

4003363, at *6. If anything, the Indiana Court of Appeals omit

‐

ted mention of additional evidence substantiating T.K.’s ac

‐

count. The opinion did not discuss, for example, the soiled

tampon, corroborating that the tw o had intercourse; the quan

‐ tity of menstrual blood found during the forensic examina

‐

tion, corroborating T.K.’s medical condition that made sex

painful and undesirable; or the distribution of beer cans in the

park, five on one side, one on the other, corroborating how

much T.K. said each person drank.

Moreover, the Indiana Court of Appeals expressly

acknowledged the weakness of the State’s cas e. It reasoned

that, “[a]lthough [the State’s] evidence [wa]s not overwhelm

‐ ing, neither was the reference [to case ‐ 889] at issue here.” Id.18 No. 21

‐ 1761

And after acknowledging the “not overwhelming” nature of

the prosecution’s evidence, the Court of Appeals explicitly

weighed “the vagueness of the isolated reference at issue, the

trial court’s instructions to the jury, and the other evidence

presented at trial,” before concluding that its “confidence in

the jury’s verdict [wa]s not un dermined.” Id. Contrary to

Thurston’s position, the opinion shows that the Indiana Court

of Appeals engaged in the holistic review envisioned in Wong

,

558 U.S. at 26.

In summary, we conclude that the decision of the Indiana

Court of Appeals holding that Thurston did not meet the de

‐ manding standard for establishing “prejudice” under Strick

‐

land was no t unreasonable.

III. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the

district court denying Thurston’s petition for habeas relief un

‐

der 28 U.S.C. § 2254.