FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 September 1, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 02-16059

________________________

D. C. Docket No. 98-00260-CV-2-WLS-1

EDDIE LEE JEFFERSON, 

Petitioner-Appellee, 

versus 

RONALD FOUNTAIN, 

Respondent-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(September 1, 2004)

Before ANDERSON, CARNES and MARCUS, Circuit Judges.

CARNES, Circuit Judge:

The State of Georgia, through Warden Ronald Fountain, appeals the district

court’s grant of habeas corpus relief under 28 U.S.C. § 2254 to Eddie Lee

Jefferson, a state prisoner convicted of rape and related crimes in Turner County,
2

Georgia. The district court granted that relief based on Jefferson’s claim that his

counsel in the state trial was ineffective for failing to file a motion to suppress

evidence arising out of an allegedly illegal stop and arrest. The procedural twists

and turns of this case and the legal issues it brings us are unusual.

Jefferson was convicted of charges stemming from three rapes in two

Georgia counties. He was first convicted in Turner County of two of the rapes and

related charges, and those convictions were upheld through the state court system. 

Then Jefferson was convicted of the third rape and related charges in Irwin County. 

Those convictions from that later trial, unlike the convictions from the earlier one

in Turner County, were set aside by the Georgia courts on grounds of ineffective

assistance of trial counsel. More specifically, counsel was held to have been

ineffective for failing to move to suppress crucial evidence resulting from a

vehicular stop by law enforcement officers. 

That stop gave rise to essentially the same evidence against Jefferson in both

trials, and that evidence was as important to one set of convictions as to the other. 

Nonetheless, even after Jefferson’s convictions on the Irwin County charges had

been set aside, the state habeas court denied relief in regard to Jefferson’s

convictions in Turner County. The district court concluded that the state court’s 

decision denying relief was unreasonable enough within the meaning of 28 U.S.C.
3

§ 2254(d) to justify federal habeas relief and granted it. In order to explain why we

disagree, we begin with the particulars of the factual and procedural history. 

I.

A.

Between December 21, 1989, and August 2, 1990, three rapes occurred in

Turner and Irwin Counties, Georgia: (1) the December 21, 1989 rape of Shannon

Tucker in Irwin County; (2) the December 29, 1989 rape of Christina Bacon in

Turner County; and (3) the August 2, 1990 rape of Candace Greer in Turner

County. Jefferson was prosecuted in each county for the rapes occurring there. 

The Turner County prosecution came first. 

The Turner County indictment charged Jefferson with two counts of rape

(one of Greer and the other of Bacon), two counts of burglary, one count of armed

robbery, and one count of aggravated assault. The state trial court appointed

Herbert Benson to represent Jefferson in relation to those charges. All three

victims testified at the Turner County trial, even though the charges covered only

the two rapes that occurred in that county. 

Candace Greer testified that at about 2 a.m. on August 2, 1990, a man broke

into her trailer in Sycamore, which is in Turner County, Georgia. She was asleep

on her sofa in the living room. Her children – daughters aged 4 and 5 – were asleep
4

in the bedroom right next to the living room. Ms. Greer was awakened when the

assailant put his hand over her eyes, told her not to open them, and put a knife to

her throat. The assailant took the pillowcase off the pillow she had been using and

blindfolded her with it. He then asked where her wallet was, and she told him it

was in the kitchen. He walked her to the kitchen and got her purse and took money

out of it. After confirming that was all the cash she had, he said “that he guessed

he was going to have to rape [her] now to get . . . something out of it[;] that he

couldn’t come without getting something.” 

The assailant then told Greer to take her clothes off. She begged him to just

take the money and not to do it, but he told her that he had to. He moved her to the

living room and raped her on the couch. Then he moved her to the floor and raped

her again. He held a knife to her throat the whole time, and also told her that he

would kill her and her two daughters if she did not comply. She never actually saw

the assailant, but said that she could tell by his voice he was black. 

Christina Bacon testified that on December 29, 1989, she was thirteen years

old. Sometime between 5:10 and 6:13 a.m. on that date she was awakened by the

sound of someone going through her things in the bathroom of the house where she

lived in Sycamore, Georgia. The light was on in the bathroom and the door was

ajar. Thinking it was her mother or sister in the bathroom, she went back to sleep. 
5

Bacon awoke when someone’s hand covered her mouth. She tried to

scream, but her assailant hit her over the head twice with something that appeared

to be a crowbar and told her that if she didn’t shut up he would hit her again. At

some point after saying that, he hit her again – she was hit with it a total of four

times during the course of the attack, but she never lost consciousness. After

hitting her, the assailant took off his clothes and raped her. At some point during

the rape, he told her that “before he could leave first he had to come” and then it

would be over and she could get a doctor. She told him she needed a doctor. She

asked if he had a gun, and he said yes. She asked him to shoot her. He replied

“shoot you?” and laughed. He asked “why would I want to do that?” and she told

him she was in so much pain she wanted him to either shoot her or get her a doctor.

After the rape, the assailant told Bacon not to move for ten minutes, and put

a pillow over her face. He was in her home a total of 25 to 45 minutes, and she had

the opportunity to observe his face, face-to-face, for about three to four minutes. 

She identified Jefferson in court as the man who had assaulted her. 

Shannon Tucker lived in Irwin County. She testified that on December 21,

1989, when she was 15 years old, she was babysitting her cousin, Sarah McCranie,

who was 7 or 8 years old. At about 9:30 or 10 a.m. that day a black man whom she

did not know entered the bedroom where she was. He was wearing underwear on
6

his head. Tucker and McCranie began screaming. The man told them to shut up or

he would kill both of them. They became quiet and begged him not to hurt them. 

The man came over to Tucker and put his hand over her mouth and dragged her off

the bed. He told McCranie to stay in the bedroom, and forced Tucker down the

hall, holding her around the neck under his arm. Around this time the underwear

came off his head. Tucker told him he could take anything he wanted and asked

that he not hurt her or McCranie. 

The man dragged Tucker into the kitchen where he grabbed a butcher knife.

While holding the butcher knife to her neck, he told Tucker not to look at him or

he would kill her. He then took Tucker to the living room and placed her standing

in front of the couch. He began undressing her and again told her not to look at

him or he would kill her. Tucker was crying and trying to get away. He took her

clothes off, held her down, and raped her. During the attack Tucker had the

opportunity to look at his face for 3 to 5 minutes or so. At the Turner County trial,

Tucker identified Jefferson as her assailant. Her young cousin, McCranie, also

testified that Jefferson was the man who broke into their house that morning. 

B.

The facts involving the investigation of the Greer rape in the early morning

hours of August 2, 1990, are of particular importance to the legal issues arising
 Tommy Williams, who lived in the area, testified at trial that he had seen a truck 1

similar to Jefferson’s in a ditch at 2:30 a.m. that morning, with a black man standing by the

truck. Williams’ testimony, when combined with that of the Mayos, places Jefferson a half mile

from the scene of the early morning rape just minutes after it took place. However, there is

nothing in the record to indicate whether any law enforcement agents knew about what Williams

had seen before they stopped Jefferson at approximately 10:00 p.m., which was some 19 hours

after Williams had spotted him standing beside his stuck truck. 

7

from the stop of Jefferson later that day, and thus to the ineffective assistance claim

against his trial counsel for failing to move to suppress the fruits of the stop.

Although unsure of the time, Candace Greer’s best estimate is that she was

raped around 2:00 a.m. that morning. The same day it had happened, Georgia

Bureau of Investigations Agent J.B. Rickenson, the chief investigator in the case,

canvassed the neighborhood surrounding the Greer house to see if anyone had

heard or seen anything during the night. He learned from the Mayos that sometime

between 5:15 and 5:25 a.m. Eddie Jefferson, a black man, had come to their house

seeking help. His truck was stuck in a ditch beside a cornfield, approximately

four-tenths of a mile from the Greer house. They helped him get it out.1

That same day Agent Rickenson examined both the ditch where the truck

had been stuck, and Greer’s house and its surroundings. He photographed tire

tracks and shoe prints around the ditch as well as shoe prints around Greer’s house. 

The record is silent about whether any comparative analysis of the shoe prints was

done that day. 
 The district court stated that the police officers guns were drawn. The state habeas 2

court made no such finding. Testimony at the Turner County trial is ambiguous. We need not

be concerned with this factual issue, however, because later in this opinion we will assume for

purposes of deciding the case that the stop itself was an arrest. 

8

Based on the information from the Mayos that Jefferson had been in the area

of the rape early that morning and had gotten his truck stuck in a ditch,

investigators wanted very much to question him. Around 10 p.m. the day of the

rape, Jefferson was driving his truck on a public street with his children when he

was pulled over by two police cars flashing their blue lights. After Jefferson pulled

over, the blue lights were turned off. Jefferson got out of his car, and three officers

approached him while one remained in one of the police cars. The officers

identified themselves and spoke with Jefferson for a few minutes. It is unclear

whether weapons were drawn or only showing because some of the officers were

in uniform. One of the officers asked Jefferson if he would be willing to come 2

down to the sheriff’s office to discuss an investigation that was underway in Turner

County. Jefferson replied very positively, saying “Sure.” 

With Jefferson’s consent, a deputy drove Jefferson’s vehicle and his two

children to Jefferson’s mother’s house, which was nearby. Jefferson was driven to

the sheriff’s office in the sheriff’s patrol vehicle – a marked vehicle – with three

officers present. Jefferson sat in the back with the sheriff. The inside door handles
9

were in place in the backseat and there was no cage. An occupant of the back seat

could have gotten out. Agent Jack White testified that Jefferson was not placed

under arrest at that time, and that nothing was done to limit his ability to come or

go. 

Jefferson testified in the state court habeas hearing that at the time he went

with the officers he didn’t feel he had any choice. His testimony, however, was

impeached by that of his trial counsel, Herbert Benson. In explaining why he had

not moved to suppress the evidence resulting from the stop, Benson testified: “I

talked to [Jefferson] at length about whether or not he was ever coerced, whether

or not they forced him to go, or whether he went freely or voluntarily. And every

time I talked about that, his statements were, you know, he went freely and

voluntarily with the officers.” 

The state habeas court credited the testimony of attorney Benson and Agent

White over that of Jefferson. It found truthful Benson’s habeas hearing testimony

that Jefferson had told him repeatedly that he had gone with the officers freely and

voluntarily, and White’s trial testimony that Jefferson was free to go at any time

prior to his actual arrest. That arrest, Rickenson explained, did not occur until after

Greer identified Jefferson by his voice. The district court, in sharp contrast, found

that Jefferson “did not willingly accompany police after the traffic stop, he went
10

with police because he was in fact under arrest.” We need not resolve this conflict,

because it ultimately does not matter to our disposition of the case. See n.2, above.

Upon arrival at the sheriff’s office, Jefferson was taken into a room to be

interviewed by Agent Rickenson. The reason Jefferson was not read his Miranda

warnings, according to Rickenson, is that the questioning was merely exploratory

in nature and the officers had no information that would have enabled them to

detain Jefferson if he had sought to leave the office. Rickenson explicitly told

Jefferson that he was not in custody. 

At some point during Agent Rickenson’s interview of Jefferson, Candace

Greer was brought to the sheriff’s office to listen to Jefferson’s voice. Upon

hearing his voice, Greer immediately began sobbing, gesturing, and shaking, and

identified Jefferson as the man who had raped her. When Rickenson was told that

Greer had identified Jefferson’s voice as that of her assailant, he arrested Jefferson

and read him his rights. Jefferson’s clothes and shoes were taken as evidence, and

he was photographed. His photograph became part of an array, from which

Christina Bacon, Shannon Tucker, and Sarah McCranie later identified Jefferson as

the assailant in the other two rapes. 

 A few days after the arrest, search warrants were issued for samples of

Jefferson’s hair and blood. The crime lab later reported that the shoes he had on
11

when arrested were similar to those that had left prints outside Greer’s residence. 

Jefferson’s hairs were found to be consistent with two hairs recovered from Greer’s

residence. 

C.

During Jefferson’s Turner County trial on charges resulting from the Greer

and Bacon rapes, a Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774 (1964), hearing

was held to determine the admissibility of statements Jefferson had made at the

sheriff’s office prior to his formal arrest and before he had been Mirandized. The

issue, as the trial court phrased it, was whether Jefferson was in custody at the time

the statements were made. This is how the trial court decided that issue:

There is no question in the court’s mind but that he was in custody from the

time that he was stopped with the blue lights. And I think the law backs that

up whole heartedly. Now, the next part though, I don’t see anything in his

statement that was inculpatory and I don’t see anything–I don’t think that it

is–and he was not the target of the investigation as I understand it until the

probable cause arose from the reaction of the victim. So I don’t think

Miranda applies. I think it was an in-custody interrogation. 

Georgia v. Jefferson, No. 7410, Transcript 321-22 (Superior Court of Turner

County 1991). 

With that explanation, the trial court ruled that Jefferson’s statements were

admissible. The court went on to say, however, that “if he goes any further and

does make anything in remarks for inculpatory [sic], the court is on the motion of
12

this defendant I’ll just tell you, I’ll have to grant a mistrial. I think you’d be

wasting money not to.” Id. at 324. No inculpatory statements were ever offered,

but Jefferson argues that by saying that it would suppress any that were, the court

“practically invited” trial counsel to move to suppress the non-statement fruits of

the stop. Counsel did not do so.

At the conclusion of the Turner County trial, Jefferson was convicted of two

counts of rape, two counts of burglary, and one count of aggravated assault. He

was sentenced to consecutive life sentences plus 20 years. Jefferson, still

represented by Benson, filed a direct appeal to the Georgia Court of Appeals. He

raised eight issues, none of which involved suppression of evidence. The Georgia

Court of Appeals affirmed the Turner County convictions. Jefferson v. State, 425

S.E.2d 915 (Ga. Ct. App. 1992) (Jefferson I).

D.

After his unsuccessful appeal in the Turner County case, Jefferson, again

represented by Benson, was tried and convicted in Irwin County for the rape of

Shannon Tucker, for burglary, and for possession of a knife during commission of

a felony. That trial utilized much of the same evidence arising from the stop of

Jefferson on August 2, 1990, as had the Turner County trial. Following his Irwin

County convictions, Jefferson obtained new counsel and directly appealed. This
13

time he raised a claim of ineffective assistance concerning the failure of trial

counsel to move to suppress the evidence flowing from the August 2, 1990 stop. 

On the basis of that claim, the Georgia Court of Appeals reversed the Irwin County

convictions. Jefferson v. State, 459 S.E.2d 173 (Ga. Ct. App. 1995) (Jefferson II). 

The Georgia appellate court concluded that Jefferson had been illegally

seized before he consented to accompany the police to the sheriff’s office, and that

the interview and evidence acquired as a result of that seizure were tainted by the

“patently illegal” arrest. Id. at 174-78. The court then reasoned that trial counsel

Benson had erred by failing to move to suppress that tainted evidence, which

included Greer’s voice identification, Jefferson’s hair, his shoes, and his

photograph which had led to the visual identifications by Bacon, Tucker and

McCranie. 

Because of the weight of the tainted evidence, the appellate court concluded

that, but for Benson’s error, the result might have been different. Accordingly, it

held that Jefferson had been deprived of the effective assistance of counsel,

reversed his conviction, and remanded for a new trial. Id. at 178. In doing so, the

appellate court noted that “the issues presented in this case would have applied

with equal force had they been presented for review in Jefferson I.” Id. at 175 n.2. 
14

On remand, Jefferson was retried on the Irwin County charges without the

evidence resulting from the stop, and he was acquitted. 

After that turn of events, Jefferson was left in prison serving his sentences

on the Turner County convictions. Unhappy about that, he filed a pro se habeas

petition in state court challenging his Turner County convictions on a number of

grounds, one of which was his trial counsel’s failure to move to suppress the

evidence arising from the August 2, 1990 stop. The state habeas court held an

evidentiary hearing during which Jefferson was represented by new counsel. At

that hearing, the court heard testimony from Jefferson and Benson.

The state habeas court was in an unusual position when it decided whether

Benson’s failure to move to suppress the fruits of Jefferson’s allegedly illegal stop

and arrest in the Turner County trial constituted ineffective assistance. When the

court had that issue before it, the Georgia Court of Appeals in the Irwin County

case, Jefferson II, had already found Benson ineffective for failing to move to

suppress the fruits of the very same stop, which the appellate court had

characterized as “patently illegal.” 459 S.E.2d at 177. Nonetheless, the state

habeas trial court concluded that Jefferson had failed to satisfy either the

performance or the prejudice prong necessary to demonstrate ineffective assistance

of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). 
15

The state habeas court did not feel constrained by the appellate court’s

decision in Jefferson II. Although it acknowledged that much of the evidence

suppressed at the Irwin County retrial was used in the Turner County trial, the

court stated that under Strickland ineffective assistance claims must be decided on

a case by case basis. The court concluded that despite the similarities between the

Irwin County and Turner County trials, Jefferson II did not control its decision

because it was a different case with different victims, juries, witnesses, and

evidence. It failed to explain how the evidence differed in any material way

between the two trials.

As for the performance prong, the state habeas court correctly set out the

Strickland standard. It pointed out that in Jefferson II the Georgia Court of

Appeals’ conclusion that Benson’s performance was deficient was based in part on

two decisions, Vansant v. State, 443 S.E.2d 474 (Ga. 1994), and Burnham v. State,

453 S.E.2d 449 (Ga. 1995), that had come out after Benson’s performance at the

Turner County trial. Declining to rely on those two decisions, because they were

unavailable to Benson at the time of the trial, the state habeas court concluded:

Considering all of the circumstances at the time of trial, including the

precedent upon which trial counsel relied, this court finds that counsel’s 

decision to forego filing a motion to suppress based on an illegal arrest did

not fall below an objective standard of reasonable[ness]. Thus, this Court

finds that [Jefferson] has failed to demonstrate the first prong of the test
 To establish that counsel’s performance was constitutionally ineffective, a defendant 3

must show both that (1) counsel’s performance was so deficient that it fell “below an objective

standard of reasonableness”; and (2) the defendant suffered “actual prejudice,” in “that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

16

enunciated in Strickland v. Washington for establishing a claim of

ineffective assistance of counsel. 

Jefferson v. Hicks, No. 97V-0141, at 12-13 (Superior Ct. of Ware County 1997).

As an alternative basis for its denial of relief, the state habeas court held that

Jefferson also had failed to establish the Strickland prejudice prong. In the 3

beginning of that part of its discussion, the court misstated the requirement as

putting the burden on the petitioner to prove that the outcome of his trial was

“actually prejudiced” by counsel’s errors. Later in its discussion, the court

correctly referred to and quoted the “reasonable probability”of a different result

standard from Strickland. 

Applying the correct standard, the state habeas court concluded that, even in

the absence of the evidence that would have been suppressed, the weight of the

non-tainted evidence at trial was such that Jefferson could not demonstrate that a

reasonable probability the result at trial would have been different absent the

alleged error. In reaching that conclusion, the court counted as “non-tainted” the

following evidence: Christina Bacon’s in court identification of Jefferson as her

assailant; Candace Greer’s testimony as to the modus operandi of her attacker, and
 The court also may have had in mind the jury’s comparison of these descriptions with 4

Jefferson’s actual voice, because he did testify at the Turner County trial. 

17

its similarity to that described in Bacon’s testimony; Greer’s description of her

attacker’s voice as “gruffy . . . real definite . . . real distinctive,” and its similarity

to Bacon’s description of her assailant’s voice as “kind of husky–I mean, not real

husky but distinctive;” the evidence of Jefferson’s adventure in the cornfield ditch 4

the morning of the Greer rape; Tucker’s testimony describing her similar attack–a

home invasion with a weapon followed by rape–in Irwin County eight days before

Bacon was attacked; and Tucker’s and McCranie’s identifications of Jefferson at

trial. Given the availability of all that non-tainted evidence, the court believed that

Jefferson had failed to demonstrate that his counsel’s failure to file a motion to

suppress had prejudiced him, as required by Strickland’s second prong, “such that

he was deprived of a fair trial or that the result of his trial is not reliable.” 

Jefferson next petitioned the Georgia Supreme Court for a certificate of

probable cause to appeal from the denial of his state habeas petition. That petition

was denied without explanation. 

E. 

Following the denial of relief from his Turner County convictions in his

state habeas proceeding, Jefferson filed a petition in federal district court for relief

from them pursuant to 28 U.S.C. § 2254. The district court granted the petition,
18

effectively setting aside Jefferson’s convictions, after measuring the state court

decision against the standards of § 2254(d)(1) and concluding that the decision was

both contrary to and an unreasonable application of the clearly established federal

law governing both the performance and prejudice prongs of the Supreme Court’s 

Strickland decision. 

As to the performance prong, the district court thought the state habeas court

had failed to recognize that Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), and

Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248 (1979), governed whether the

evidence flowing from Jefferson’s arrest should have been suppressed on grounds

that the stop violated the Fourth Amendment. Those two decisions, the court

thought, were “clearly established federal law” that a detention without probable

cause under the circumstances of this case is unconstitutional. In reaching that

conclusion the district court found as fact, contrary to the state habeas court’s

findings, that Jefferson did not willingly accompany police after the traffic stop,

but instead was under arrest. Given the illegality of Jefferson’s detention, the court

reasoned that under Strickland it was unreasonable for trial counsel not to have

filed a suppression motion. 

The district court also concluded that the state habeas court’s analysis of the

prejudice prong was contrary to and an unreasonable application of the Strickland
 Our approach to the case is based upon the understanding that if a state habeas court 5

denies relief where we would have done so if we were conducting de novo review, federal

19

decision. The district court thought the state habeas court had applied a standard

that required Jefferson to prove the result of his trial actually would have been

different instead of demonstrating a reasonable probability of a different result. 

The higher standard would have been contrary to the clearly established federal

law set out in Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. The state habeas

court’s rationale that there was sufficient non-tainted evidence to support the

convictions was also an unreasonable application of the Strickland prejudice prong,

the district court believed. According to it, the question the state court should have

answered but did not is whether there was a reasonable probability that admission

of the tainted evidence had affected the outcome of the trial. Besides, the district

court said, much of the “non-tainted” evidence the state habeas court relied upon

for its result probably was subject to suppression as fruit of the initial illegal voice

identification of Jefferson by Greer. Because that voice identification would have

been suppressed upon a proper motion, the reasoning goes, so would most of the

other evidence against Jefferson. 

II.

Under our view of this case, there are a number of issues we need not

decide. We need not decide if the stop of Jefferson by the officers with their 5
habeas relief is due to be denied regardless of the reasoning the state court used to reach that

result. This is the way things were before the enactment of AEDPA, during the Brown v. Allen,

344 U.S. 443, 73 S. Ct. 397 (1953), de novo review regime. The AEDPA, of course, 

substantially limited the circumstances in which federal habeas relief can be granted. Miller-El

v. Cockrell, 537 U.S. 322, 337, 123 S. Ct. 1029, 1039-40 (2003) (“Statutes such as AEDPA have

placed more, rather than fewer, restrictions on the power of federal courts to grant writs of

habeas corpus to state prisoners.”); Gonzalez v. Sec’y for Dept. of Corr., 366 F.3d 1253, 1269

(11th Cir. 2004) (en banc) (“The central purpose behind the AEDPA was to ensure greater

finality of state and federal court judgments in criminal cases.”); Johnson v. United States, 340

F.3d 1219, 1224 (11th Cir. 2003) (“It is generally accepted that one of the principal functions of

AEDPA was to ensure a greater degree of finality for convictions.”). It necessarily follows that

where we would deny relief under a de novo review standard, relief must also be denied under

the much narrower AEDPA review standards. See Crawford v. Head, 311 F.3d 1288, 1324 (11th

Cir. 2002). 

20

flashing blue lights, which led to his going to the sheriff’s office, was an illegal

detention. We will assume it was. We need not decide if the failure of trial

counsel to file a motion to suppress the evidence that resulted from Jefferson going

to the sheriff’s office was deficient performance under the Strickland standard. We

will assume it was. We need not decide if much of the evidence the state habeas

court described as non-tainted by any illegality of the stop was in fact tainted, as

the district court thought. We will assume it was. 

Making all of these assumptions in favor of Jefferson’s position, he still was

not entitled to have a motion to suppress the evidence resulting from the stop and

ensuing interview granted; he was not, because of the inevitable discovery

exception to the exclusionary rule. That exception was adopted by the Supreme

Court in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501 (1984), and under it

evidence that results from an illegal search or seizure is nonetheless admissible if
21

“the information ultimately or inevitably would have been discovered by lawful

means.” Id. at 444, 104 S. Ct. at 2509. In Nix, for example, the Court held that

evidence of the location and condition of the deceased victim’s body was

admissible, even though its discovery resulted from an illegal interrogation of the

defendant, because extensive searches were underway in the area at the time and

the body inevitably would have been discovered in substantially similar condition

even without the interrogation of the defendant. Id. at 449-50, 104 S. Ct. at 2512.

The Supreme Court in Nix based the inevitable discovery exception on the

policies underlying the exclusionary rule. As the Court explained, the “core

rationale” of the exclusionary rule is to deter police misconduct by ensuring that

the prosecution is not put in a better position than it would have been in if no

illegality had transpired. Id. at 442-43, 104 S. Ct. at 2508-09. At the same time,

the high social cost of allowing obviously guilty persons to go unpunished

counsels against putting the prosecution in a worse position than it would have

been in if the constitutional violation had not occurred. Id. at 443, 104 S. Ct. at

2508. When the evidence inevitably would have been discovered, the “public

interest in having juries receive all probative evidence of a crime” outweighs the

need to discourage police misconduct. Id. at 443-44, 104 S. Ct. at 2508-09. There

is no additional deterrence value in suppressing the evidence in these
 Decisions of the Fifth Circuit rendered on or before September 30, 1981, are binding 6

precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc).

22

circumstances. Id. at 444, 104 S. Ct. at 2509. The exclusion of evidence would

not restore the parties to their previous positions and would upset the careful

weighing of competing interests underlying the exclusionary rule. Id.

Even before the Nix decision, the elements of the inevitable discovery rule 

were set forth in a former Fifth Circuit case, United States v. Brookins, 614 F.2d

1037 (5th Cir. 1980). In order for evidence to qualify for admission under this 6

exception to the exclusionary rule, there must be a reasonable probability that the

evidence in question would have been discovered by lawful means, and the

prosecution must demonstrate that the lawful means which made discovery

inevitable were being actively pursued prior to the occurrence of the illegal

conduct. Id. at 1042 n.2. Since the Nix decision, we have continued to follow the

Brookins decision, which is entirely consistent with it. See United States v.

Terzado-Madruga, 897 F.2d 1099, 1114 (11th Cir. 1990); United States v.

Satterfield, 743 F.2d 827, 846 (11th Cir. 1984). 

In Brookins itself the police obtained the identity of a key prosecution

witness through an unconstitutional interrogation of the defendant. The Court

found “[m]ore than a reasonable probability existed that normal police
23

investigation, if the interrogation had never occurred, would have disclosed the

identity of [the witness].” 614 F.2d at 1048. The testimony of the witness was

admissible because lawful police inquiries that were already “set in motion”

probably would have disclosed his identity. Id.

Similarly, in Terzado-Madruga, the police obtained the identity of a

prosecution witness by illegally taping a phone conversation between the

defendant and another person. We held that the witness’s identity was admissible,

because even if it were unknown to the police at the time of the illegal taping,

another conspiracy member who was capable of identifying the witness had

voluntarily agreed to cooperate with police. 897 F.2d at 1114-15.

In this case, the evidence Jefferson speculates would have been suppressed

by the trial court if his attorney had objected all flows from Greer’s unequivocal

identification of Jefferson’s voice as that of the rapist. Because she heard his voice

at the police station while he was being interviewed, Jefferson argues that the voice

identification and all that followed was a product of his illegal stop. Before the

stop, however, the police had information that had caused them to focus their

attention on Jefferson. 

The officers knew from the Mayos that Jefferson, who did not live in the

area, had gotten his truck stuck four-tenths of a mile from the Greer residence
24

sometime before 5:25 a.m., which was within about three hours of Greer’s rape. 

Jefferson’s unexplained proximity to the scene of the crime in the early morning

hours made him the prime suspect, or “person of interest” in the case. The

officers wanted to talk with Jefferson, and they wanted to have Greer listen to his

voice. They also had tire tracks from the ditch by the Mayos, and shoe prints

from there and the Greer house where the rape had taken place, which they

wanted to check out. The diligence with which the police were looking for

Jefferson is shown by the fact that his car was pulled over at 10:00 p.m. that night

by two police cars containing four officers. 

In the absence of that allegedly improper stop, it is unfathomable that the

investigators would not have availed themselves of the various ways in which

they could have arranged for Greer to listen to Jefferson’s voice. He was at the

time a Staff Sergeant in the Army, hardly a position in which he could have

remained mute throughout his work day. The officers could have had someone

tape record him while he was talking. The tape could then have been played back

for Greer. Or they could have called Jefferson on the telephone, either openly or

through a ruse, and had Greer listen in to the conversation. Or they could have

simply had Greer call Jefferson and listen to him talk. She would not have had to

hear him say much in order to make the identification. We know that because
25

when Greer did hear Jefferson’s voice at the police station, she immediately

recognized it as that of her rapist, and she broke down emotionally, sobbing,

gesturing, and shaking. 

All the other evidence Jefferson contends should have been suppressed

flowed from Greer’s positive identification of him which, along with Jefferson’s

location near the scene of the rape in the early morning hours, supplied probable

cause for his arrest. After Jefferson was arrested, he was photographed, and his

photograph became part of an array, from which Christina Bacon, Shannon

Tucker, and Sarah McCranie later identified him as the assailant in the other two

rapes. 

There is not simply a probability, but a virtual certainty, that if the officers

had not stopped Jefferson that night, they inevitably would have discovered all

the evidence that resulted from that stop. The efforts to locate Jefferson so that,

among other things, Greer could hear him speak, were already under way and

inevitably would have resulted in Greer identifying his voice as that of the rapist.

Subtract the stop from the factual picture in this case and the most that would

have changed is the timing of Greer’s identification of Jefferson; it would have

been delayed, which would have changed nothing of substance. Under these

circumstances the inevitable discovery exception to the exclusionary rule applies,
26

and any suppression motion should have been denied. That means Jefferson

suffered no prejudice from his trial counsel’s failure to file a motion to suppress,

and the ineffective assistance claim fails. 

III.

We realize, of course, the possibility that a suppression motion would have

been successful in the state courts. One might have been granted even though the

Constitution does not require that it be. The state trial judge who presided at the

Turner County trial made statements indicating he would have viewed a motion

to suppress favorably. And the Georgia Court of Appeals did reverse the Irwin

County convictions after deeming trial counsel ineffective for failing to file a

suppression motion. On the other hand, the state habeas court denied Jefferson’s

identical claim in this case, and the Georgia Supreme Court denied review of its

decision.

In any event, it changes nothing if we assume that the Georgia courts

would have suppressed all the evidence flowing from the allegedly illegal stop if

trial counsel had filed a motion to do so. We can go even further and assume that

they would have done so and the result would have been an acquittal of Jefferson

on these Turner County charges, just as he was acquitted when retried on the

Irwin County charges. Even with these assumptions federal habeas relief is still
27

due to be denied, because as we have explained the inevitable discovery doctrine

means that the granting of a motion to suppress would not have been warranted;

granting the motion would have been the wrong result. 

It might seem that if the state courts would have mistakenly granted the

motion to suppress and changed the result of the trial, as we are assuming they

would have, counsel’s failure to file the motion prejudiced Jefferson. That

reasoning, however, is directly contrary to the Supreme Court’s decision in

Lockhart v. Fretwell, 506 U.S. 364, 113 S. Ct. 838 (1993). 

In Fretwell, as in the present case, if counsel had made an objection that

the petitioner claims he should have, the state court would have taken an action

favorable to the defendant, which would have actually changed the result of the

trial. Fretwell, 506 U.S. at 366, 113 S. Ct. at 841. (There the objection would

have resulted in the petitioner being ineligible for a death sentence, id. at 368,

113 S. Ct. at 842; here we are assuming the objection would have resulted in the

suppression of enough of the damaging evidence against Jefferson that he would

have been acquitted on retrial.) In Fretwell, as in the present case, if counsel had

objected the state court would have taken the result-changing action favorable to

the petitioner based on the erroneous belief that the federal Constitution required

it to do so. Id. at 371-72, 113 S. Ct. at 843-44. In Fretwell, as in the present case,
28

the petitioner argued that the fact a different result would have occurred had

counsel objected in state court means that the Strickland prejudice requirement is

satisfied. Id. at 367, 113 S. Ct. at 841. That argument has a lot of surface appeal,

but the Supreme Court went beyond the surface of it in Fretwell and in obedience

to that decision so must we. 

As the Supreme Court explained in its Fretwell opinion, the critical focus

of the Strickland prejudice inquiry is not results per se, but the fairness and

reliability of the adversary proceeding in question. 506 U.S. at 369-71, 113 S. Ct.

at 842-43. If the proceeding was fair and the result is reliable, it is immaterial for

purposes of the prejudice inquiry whether counsel could have done something

that would have brought about a different result. Or, as the Court explained it:

“[A]n analysis focusing solely on mere outcome determination, without attention

to whether the result of the proceeding was fundamentally unfair or unreliable, is

defective. To set aside a conviction or sentence solely because the outcome

would have been different but for counsel’s error may grant the defendant a

windfall to which the law does not entitle him.” Id. at 369-70, 113 S. Ct. at 842-

43 (internal marks and citations omitted); see also, Brady v. Maryland, 373 U.S.

83, 90, 83 S. Ct. 1194, 1198 (1963) (rejecting a “sporting theory of justice” in

regard to the prejudice component of Brady claims). 
29

When a federal habeas court is deciding whether to grant a state prisoner

relief on ineffective assistance of counsel claims, fairness and reliability are

defined in terms of what the Constitution requires, not in terms of what the

petitioner might have gained from the state courts under an erroneous view of

federal constitutional law. The Supreme Court put it nicely when it said that in

evaluating prejudice a court should not consider an error by counsel that merely

“deprived [the defendant] of the chance to have the state court make an error in

his favor.” Fretwell, 506 U.S. at 371, 113 S. Ct. at 843. 

Jefferson, like Fretwell, was not entitled to have his counsel present the

state courts with an opportunity to make an error in his favor. The objection

Jefferson insists his counsel ought to have made, like the one Fretwell insisted his

counsel ought to have made, should have been denied. Jefferson, like Fretwell, is

not entitled to a windfall. Jefferson was not prejudiced in the sense required by

Strickland, just as Fretwell was not. We must reject Jefferson’s ineffective

assistance of counsel claim just as the Supreme Court rejected Fretwell’s. 

The decision of the district court is REVERSED.