In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1403

DARRYL ALLEN,

Petitioner-Appellant,

v.

NEDRA CHANDLER,

Respondent-Appellee.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 02 C 7631—Marvin E. Aspen, Judge.

ARGUED JULY 8, 2008—DECIDED FEBRUARY 11, 2009

Before BAUER, COFFEY, and ROVNER, Circuit Judges.

COFFEY, Circuit Judge. The General Store in Joliet,

Illinois, was the scene of an armed robbery on the night

of October 26, 1990, and the store clerk on duty Cheryl

Smithson identified Darryl Allen as the perpetrator—first

from a photographic array and also during his two

state trials. The first of the two trials ended in a deadlocked jury, but the second trial resulted with Allen

being convicted of armed robbery, which was upheld on

appeal. In the petitioner’s initial appeal of his conviction
2 No. 07-1403

he alleged that his trial counsel was ineffective for

eliciting testimony from Detective Farmer referring to the

defendant’s post-arrest silence, and also the petitioner

argued that his appellate counsel was ineffective for

failing to raise the issue of trial counsel’s ineffectiveness

on direct appeal. The state appellate court rejected each of

these arguments, holding that, even if counsel’s performance was deficient, he was not prejudiced by the trial

counsel’s question because the evidence of guilt was

overwhelming. We affirm.

I.

Allen’s second jury trial lasted less than a day. As

previously pointed out the store clerk identified the armed

robber and during her testimony referred to him as a

frequent customer and went on to explain that he had

visited the store on two different occasions on the night

of the robbery. Smithson’s testimony also revealed that

the robber was unmasked, which afforded her ample

time to observe and recognize him. She also mentioned

that he had been a frequent patron of the store. She

further stated that the unmasked robber displayed a

gun while standing within a foot of her and directed her

to give him the money in the cash register. Shortly after

the crime, the witness Smithson immediately identified

Allen as the armed robber during a photo lineup and again

at trial. In addition to Smithson’s eyewitness account, a

videotape of the robbery was displayed to the jury. Even

though the pictures on the videotape film were not of

perfect quality, they were of sufficient quality to assist
No. 07-1403 3

the jury in substantiating Smithson’s testimony as well

as her identification of Allen as the robber.

Finally, the State as proof of consciousness of guilt

offered the evidence that Allen fled to Georgia about two

months after the crime. It is well established that evidence

of flight is admissible as a circumstance tending to show

a consciousness of guilt. See Illinois v. Pursley, 672

N.E.2d 1249, 1255 (1996).

It is also interesting to note that during his cross-examination of the investigator, defense counsel, as distinguished from appellate counsel, elicited the following

testimony concerning the post-arrest questioning of Allen:

Counsel: Okay. Now, you said that you read Mr.

Allen the rights off the Miranda form, correct?

Farmer: That is correct.

Counsel: But you filled the answers out?

Farmer: That is correct.

Counsel: Okay. Isn’t it a fact that Mr. Allen refused

to answer any questions?

Farmer: He refused to answer questions in reference to the case in which I asked him

about.

Counsel: Okay. So, he wasn’t cooperating with you,

correct?

Farmer: That is correct.

The jury returned a verdict of guilty, and the judge sentenced Allen to forty-eight years’ imprisonment.
4 No. 07-1403

On appeal, Allen challenged the trial court’s refusal to

instruct the jury on robbery, a lesser-included offense.

He also argued that the presentence investigation

report was limited because the probation officer should

have interviewed more people. Allen undermined this

contention by refusing to be interviewed or cooperate

in the preparation of the presentence report. Finally,

the defendant complained that the trial judge abused

his discretion when sentencing him to forty-eight years

in prison. The appellate court rejected this argument as

Allen had been convicted of a number of crimes (at least

twenty other armed robberies)—including a prior armed

robbery at the same store. The latest robbery was committed while he was on parole status. Allen’s conviction

and sentence of forty-eight years were affirmed on appeal.

See Allen, 619 N.E.2d at 827. Allen next brought a motion

for leave to appeal, which the state supreme court

denied. People v. Allen, 624 N.E.2d 809 (Ill. 1993).

Allen then proceeded with a second round of

postconviction litigation in the Illinois courts, arguing

that his trial counsel rendered ineffective assistance by

eliciting testimony concerning his post-arrest silence, and

that prior appellate counsel was ineffective in not raising

this issue on direct appeal. The state appellate court did

not reach the question of whether trial counsel’s elicitation of the testimony fell outside the range of professionally competent assistance, and rather focused on the

prejudice prong. Over a dissent, the court upheld the

denial of relief on this issue, reasoning that Allen could

not have been prejudiced because the totality of the

evidence of his guilt was “overwhelming.” People v.
No. 07-1403 5

Allen, No. 3-99-9761 (Ill. App. Ct. June 11, 2001) (unpublished). The state appellate court’s majority explained that

Smithson’s identification of Allen was both prompt and

strong because she had more than ample opportunity to

observe the unmasked perpetrator at close range, and

also remembered him as a frequent customer of the

store, and furthermore she had opportunities to observe

him on two separate occasions in close proximity (as little

as one foot) on the evening of the robbery. Id. at 5. The

majority added that the surveillance video “tended to

corroborate” Smithson’s testimony and that Allen’s

flight and arrest in the State of Georgia some two

months after the robbery “tend[ed] to show consciousness

of guilt.” Id. The state supreme court again denied leave

to appeal. People v. Allen, 763 N.E.2d 320 (Ill. 2001).

Subsequently, Allen filed a petition for writ of habeas

corpus in federal court. The district court concluded

that the state appellate court’s application of Strickland

was not unreasonable, and thus controlling. Allen challenges that conclusion here.

II.

We agree that Strickland has reasonably been applied

to Allen’s claim of ineffective assistance of counsel. A

federal court may not grant a habeas corpus petition

unless the state court’s adjudication of the claim

“resulted in a decision that was contrary to, or involved

an unreasonable application of clearly established Federal

law.” 28 U.S.C. § 2254(d)(1). Under the Antiterrorism and

Effective Death Penalty Act (AEDPA), ineffective assis-
6 No. 07-1403

tance of counsel is a mixed question of law and fact

reviewed de novo with a strong presumption that the

attorney performed effectively. See United States v.

Fudge, 325 F.3d 910, 923 (7th Cir. 2003). The law governing ineffective assistance claims, announced in Strickland, requires that Allen must demonstrate that (1) counsel’s performance fell “outside the wide range of professionally competent assistance” and (2) “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 690, 694. The bar for

establishing that a state court’s application of the

Strickland standard was “unreasonable” is a high one,

and only a clear error in applying Strickland will support

a writ of habeas corpus. To demonstrate prejudice

under Strickland, the petitioner must establish “that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the

outcome.” Id. at 694. The state appellate court rejected

this claim on the merits, holding that petitioner could not

satisfy Strickland’s prejudice prong because overwhelming evidence supported his conviction.

The petitioner advances three other challenges to the

state appellate court’s adjudication of his claims. Initially,

he argues that the court failed to apply the correct legal

standard for prejudice, resulting in a decision contrary

to Strickland. Second, he contends that, to the extent the

court applied the correct standard for prejudice under

Strickland, it was an unreasonable application of the law
No. 07-1403 7

to the facts of the case. Finally, he argues that the court

did not properly consider his claim that his appellate

attorney was ineffective.

A. A decision “contrary to” Strickland’s prejudice

prong.

Allen argues that the state court’s decision was “contrary to” the prejudice prong of Strickland because, in

assessing whether counsel’s performance prejudiced him,

the court wrote that counsel’s alleged error “did not tip

the scales of justice unfairly in favor of the state.” Although

the court repeatedly referred to Strickland, Allen contends that the state appellate court’s use of its “scales of

justice” language raised his burden of proof, essentially

requiring him to show that it is “more likely than not” that

his attorney’s deficient performance altered the outcome

of the case—a standard the Supreme Court explicitly

rejected in Strickland, 466 U.S. at 693.

Allen concedes in his reply brief that he waived this

argument by failing to raise it in the district court. See

Obriecht v. Raemisch, 517 F.3d 489, 493 (7th Cir. 2008). The

argument, even if properly raised, is meritless. As

relevant here, a state court’s decision is “contrary to”

federal law if it is “substantially different” from or “opposite to” relevant Supreme Court precedent. Williams v.

Taylor, 529 U.S. 362, 405 (2000). No doubt there is a semantic difference between the “tipping the scales of justice”

standard and the actual Strickland test. But there is no

reason to think that the standard is substantially different
8 No. 07-1403

from the Strickland test, nor that it is the equivalent of a

“more likely than not” standard. “Tipping the scales

of justice unfairly” is a vague metaphor that lacks

any obvious connection to any legal standard. The

parties have not identified a source for the language, but

we note that it is currently used in Illinois cases to

describe the showing of prejudice required under the

state’s “plain error” test. See, e.g., People v. Piatkowski, 870

N.E.2d 403, 411 (Ill. 2007) (allowing review of unpreserved

error, regardless of its seriousness, if it is “clear or obvious” and “the evidence is so closely balanced that the

error alone threatened to tip the scales of justice against

the defendant.”). That might suggest that the language

is more akin to a “clear probability” standard, but it’s

impossible to know—not only because the Illinois courts

to date have not said so, but because the language had not

been used at the time of the state appellate court’s

decision in 2001. Given this ambiguity, along with the

fact that earlier in its opinion the Illinois appellate court

cited Strickland, a single reference to “tipping the scales”

does not demonstrate that the court applied a standard

contrary to clearly established federal law. Rather, “it is

more likely that the court stated its conclusion

imprecisely than that it applied a different standard.”

Stanley v. Bartley, 465 F.3d 810, 813 (7th Cir. 2006); see

Eckstein v. Kingston, 460 F.3d 844, 850-51 (7th Cir. 2006).

B. An “unreasonable application” of Strickland’s

prejudice prong.

Allen also contends that the state appellate court unreasonably applied Strickland in concluding that the evi-
No. 07-1403 9

dence supporting his conviction was “overwhelming.”

He alleges that the state’s single-eyewitness case

coupled with the prior mistrial show that the judge’s

verdict was a close call. And he argues that, because

the case hinged on Smithson’s identification, Detective

Farmer’s testimony that he was silent and uncooperative

when asked about the crime might have eliminated

any reasonable doubt in the jurors’ minds.

A state court’s decision is “an unreasonable application” of federal law if the court “identifies the correct

governing legal principle” from the Supreme Court’s

decisions but “unreasonably applies that principle to

the facts of the prisoner’s case.” Williams, 529 U.S. at 413.

An “unreasonable application” is one that is “not only

erroneous, but objectively unreasonable,” Yarborough v.

Gentry, 540 U.S. 1, 5 (2003), which in turn means “something like lying well outside the boundaries of permissible

differences of opinion,” Jackson v. Frank, 348 F.3d 658,

662 (7th Cir. 2003) (citation and quotation marks omitted). In other words, “a habeas petitioner must show that

the state court’s decision unreasonably applied clearly

established Supreme Court precedent by unreasonably

extending a rule to a context where it should not have

applied or by unreasonably refusing to extend a rule to a

context where it should have applied.” Virsnieks v.

Smith, 521 F.3d 707, 713 (7th Cir. 2008).

We are of the opinion that the state appellate court

reasonably applied Strickland when it concluded that

the evidence presented against Allen was compelling

enough to hold that he was not prejudiced by his
10 No. 07-1403

attorney’s elicitation of Farmer’s testimony. Although

the case against Allen relied primarily on Smithson’s

eyewitness identification, that identification was not

only reliable but very strong. She had an opportunity to

observe the unmasked robber at close range, fingered

Allen without hesitation in a photographic array as well

as during her testimony at two trials, and identified him

as a frequent customer. The surveillance video, meanwhile, corroborated her account of the robbery. True,

the video of itself was not of sufficient clarity to allow

the jury to independently identify the unmasked robber

as Allen, but the video’s technical limitations did not

undermine Smithson’s account; they simply could not

fully corroborate it. Meanwhile, Detective Farmer’s testimony that Allen did not respond and was uncooperative

when questioned about the crime, while unhelpful for

Allen’s defense, was both short and brief. Neither side

referenced the testimony during closing arguments. See

Bieghler v. McBride, 389 F.3d 701, 705-07 (7th Cir. 2004);

Splunge v. Parke, 160 F.3d 369, 372-73 (7th Cir. 1998). In

light of the totality of the wealth of evidence concerning

the petitioner’s guilt, it is evident from the record that

the attorney’s questions to Detective Farmer disclosing

Allen’s post-arrest silence did not tip the scales of justice

unfairly in favor of the State. Furthermore, even if we

were to hold that the attorney’s cross-examination was

objectively unreasonable, her representation was not

ineffective because the defendant was not prejudiced by

the testimony.

Nor will we draw any inference from Allen’s initial

mistrial, which could have been the result of a variety of
No. 07-1403 11

circumstances that are irrelevant to our consideration of

prejudice. Although the fact of a prior mistrial might

conceivably give some support to the defendant’s claim

that the case against him was weak, it does not, on its

own, show that an error was outcome-determinative.

Compare Adams v. Bertrand, 453 F.3d 428, 438 (7th Cir. 2006)

(attorney’s failure to pursue witness with exculpatory

testimony was prejudicial error where evidence was

“relatively thin” and codefendant who called witness

received mistrial), with Toliver v. Hulick, 470 F.3d 1204,

1208 (7th Cir. 2006) (prior mistrial irrelevant to show

prejudice from trial court’s refusal to let defendant crossexamine principal witness about immigration status,

where defendant confessed and witness’s testimony was

strong). Each trial is a distinct event with many nuances

that transcripts can never fully capture; we refuse to

draw any conclusions based on the mere fact that two

different events produced two different results. Because

the evidence of Allen’s guilt is more than substantial,

there is no reason to dwell on his prior mistrial.

C. Ineffective assistance of appellate counsel.

Finally, Allen claims that his appellate attorney was

ineffective in failing to argue his Strickland claim. When

an appellate counsel omits “a significant and obvious

issue . . . [the court] will deem his performance deficient.”

Mason v. Hanks, 97 F.3d 887, 892-93 (7th Cir. 1996). And

if raising the issue “may have resulted in reversal of the

conviction, or an order for a new trial, [the court] will

deem the lack of effective assistance prejudicial.” Id.

(internal citations and quotations omitted).
12 No. 07-1403

In both the Illinois appellate court as well as the

district court, Allen’s claim was rejected on the

grounds that Allen was not prejudiced by his trial attorney’s error, and thus appellate counsel could not have

been ineffective in failing to raise the argument. Allen

challenges this conclusion, noting that his ineffectiveassistance claim should or would have been judged

under a de novo standard of review had it been raised on

direct appeal. See People v. Bailey, 874 N.E.2d 940, 945 (Ill.

App. Ct. 2007). But on postconviction review the state

appellate court explicitly rejected the state’s waiver

argument and evaluated the Strickland claim “on its

merits,” applying de novo review.

AFFIRMED.

ROVNER, Circuit Judge, dissenting. The right to counsel—to effective counsel—ensures a fair trial by requiring

that counsel vigorously advance a defendant’s claim of

innocence. See Gideon v. Wainwright, 372 U.S. 335, 344

(1963); Strickland, 466 U.S. at 684-86. But here counsel not

only failed to defend Darryl Allen at all stages of his trial,

counsel actually harmed him by eliciting testimony from

the arresting officer, Joseph Farmer, that Allen said

nothing to defend himself after his arrest. The state ap-
No. 07-1403 13

pellate court held that Allen was not prejudiced by this

error, and the majority agrees. Because I believe that the

state appellate court unreasonably applied Strickland in

what was essentially a one-witness case, I am compelled

to dissent.

I join with the majority’s holdings in section II(A) and

II(C) regarding Allen’s argument that the state court

applied the wrong standard to his claims of ineffective

assistance of trial and appellate counsel. But I part ways

with the majority in section II(B), which holds that the

state appellate court did not unreasonably apply

Strickland in concluding that the evidence against Allen

was “overwhelming.” I conclude that the state court did

unreasonably apply Strickland in this regard. I reach this

conclusion even though I agree that the testimony of an

eyewitness like Cheryl Smithson can be sufficient to

affirm a conviction. See United States ex rel. Hampton v.

Leibach, 347 F.3d 219, 255 (7th Cir. 2003) (holding that

even vulnerable eyewitness testimony can be “more than

sufficient to convict”). As the majority rightly points out,

Smithson observed the robber at close range, she

fingered Allen without hesitation in a photographic

array and at trial, and she said she had seen him before.

But the relevant issue here is not the sufficiency of

evidence, but whether Smithson’s testimony overwhelmingly supports a conviction. It does not. See Krist v.

Eli Lilly & Co., 897 F.2d 293, 297 (7th Cir. 1990) (noting

that confidence in a memory does not necessarily

support its accuracy); Elizabeth F. Loftus et al., Eyewitness

Testimony: Civil and Criminal § 4-14 (4th ed. 2007) (noting
14 No. 07-1403

that a victim can confuse recent acquaintances with the

perpetrator of a crime). The evidence against Allen was

particularly weak: The surveillance video—the state’s

only physical evidence—does not corroborate Smithson’s

testimony that the perpetrator had entered and left the

store shortly before the robbery, and the video was not

clear enough to support her identification. The state’s

only other evidence—testimony intended to show that

Allen fled the state after he committed the crime—was

meager: unremarkably, Allen was found in Atlanta,

where his sister lives, during the Christmas holidays.

We have repeatedly held that one eyewitness’s testimony such as Smithson’s was not “so overwhelming that

the outcome of the trial was a foregone conclusion,”

Hampton, 347 F.3d at 255; see Wright v. Gramley, 125

F.3d 1038, 1043 (7th Cir. 1997) (describing as “weak” state’s

case relying almost exclusively on testimony of two

eyewitnesses); United States ex rel. Freeman v. Lane, No. 89

C 4642, 1990 WL 70558 at *6 (N.D. Ill. May 14, 1990)

(evidence of guilt not overwhelming where conviction

was based on testimony of lone eyewitness and no

physical evidence corroborated witness’s testimony), aff’d,

Freeman v. Lane, 962 F.2d 1252 (7th Cir. 1992); see also

Anderson v. Johnson, 338 F.3d 382, 393-94 (5th Cir. 2003)

(describing as “relatively weak” case relying on two

eyewitnesses’ testimony); Towns v. Smith, 395 F.3d 251, 260-

61 (6th Cir. 2005) (describing single eyewitness’s shaky

identification as “scant” evidence of defendant’s guilt).

With no other evidence linking Allen to the crime,

and with the video surveillance not corroborating
No. 07-1403 15

Smithson’s identification, Detective Farmer’s testimony

that Allen was uncooperative and did not respond to postarrest questioning acquired undeserved importance. As

the Supreme Court explained in United States v. Hale,

422 U.S. 171, 180 (1975), “the jury is likely to assign

much more weight to the defendant’s previous silence

than is warranted.” Allen’s counsel was incompetent for

eliciting this testimony because its only probable effect

was to sway the jurors to find guilt. Without evidence

of Allen’s post-arrest silence, the jury would have had to

decide whether Smithson’s identification was accurate

and strong enough to convict—an arduous task. But

Farmer’s testimony of Allen’s uncooperative behavior,

and his refusal to answer questions related to the case,

communicated to the jury that he was conscious of his

guilt—a criminal with something to hide.

Under these circumstances, it is not reasonable to

describe the case against Allen as so overwhelming

that there is not a reasonable probability that, but for

counsel’s unexplained decision to probe the arresting

officer about Allen’s post-arrest silence, the outcome

would have been different. Indeed, on analogous facts

we have concluded that two eyewitness identifications—one by a witness who previously knew the defendant—did not constitute evidence of such an overwhelming character that it could sustain a conviction

where the prosecution had commented on the defendant’s

post-arrest silence. See United States ex rel. Ross v. Fike,

534 F.2d 731, 734 (7th Cir. 1976).

In fact, in the earlier trial in which the same evidence

was presented absent the evidence of post-arrest silence
16 No. 07-1403

no guilty verdict was reached and the trial ended in a

mistrial. Given the limited evidence of guilt in this case,

it was an unreasonable application of Strickland to hold

that the evidence was overwhelming and, therefore, that

prejudice was not shown. Accordingly, I respectfully

dissent.

2-11-09