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# United States Court of Appeals For the Seventh Circuit

No. 12-3245

TYR ON E L. J ON E S

, Petitioner-Appellant,

v.

R I C HAR D B R OWN , Responden t-Appellee.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the S outhern Di stric t o f Indi ana, Te rre Haute Divisi on. No. 2: 11 -cv-20 5- WTL-WGH — Will ia m T. Lawre nce , Judg e.
A RGU E D F E B R

UAR Y 19, 2014

— D E C I D E D J UN E 24, 2014

Before P O S N E R

, R I P PL E, and K ANN E, Circ uit Judges. R I P PL E, Ci r c u it Judge. After a bench tr i al, T yr one L. Jones
w as convic ted of felony murder in an Indi ana tr i al court. His
co nv i cti on w as affi rmed on di rect appeal. He then fi le d a petiti on for postconvic tion relief in sta t e court, allegin g ineffec tiv e assi stance of tr i a l c oun s e l

. Sp e c i fi cally , he contended that hi s tr i al couns el had been ineffec tive for fai ling to seek the supp ressi on of clothing that Mr . Jones had gi v en to t he poli ce after hi s arr est. Mr

. Jones contended that the clothing had been2 No. 12-3245
obtained in violati on of Pirtle v
. State, 323 N.E. 2d 634 (Ind. 1975), whi ch, at least under some ci rcums tances, requires that
a detain ee be advis ed of hi s right to couns el prior to consenting to a search of hi s proper ty

. The st a t e t r ial court deni ed postconvic tion relief; the Court of Appeals of Indi ana affi rmed that judgment, and the Suprem e Court of Indi ana deni ed tr ansfer

. Havin g exhausted hi s state r e me di es, Mr

. Jones sought federal habeas reli ef under 28 U.S.C. § 2254. He reiterat ed the
same clai m of ineffec tiv eness of couns el that he had presented to the state cour t s. Th e di stric t court deni ed relief. W e now affi rm that judgment becau se tr i al co un sel w as not consti tutionally ineffec tiv e under Strickland v
. W ashington , 466 U.S. 668 (1984).

I

BACKGRO UND A. The Cour t of Appeals of Indi ana sum mari zed the facts underlyin g Mr . Jones’s c onvicti on as follows: In Februar y 2002, Sam Alexande r li v ed at the Lamp l i ghter Apart ments in Indi anapoli s. Alexa nder w as fi fty-fi v e y ears old and wei ghed approx i mat e l y 138 pounds. He w alked wi th a li mp and suffered from emphysema. Alexander and Jo nes used drugs tog ether on occasi on. In Februar y 2002, Jones w as thi rt y-thre e y ears old and wei ghed 230 pounds.No. 12-3245 3
During the weekend of Februar y 8, 2002, Jones and Anni ssa Harris were ge t t ing hi gh on crack cocaine a t Al e xan d e r’ s a p a rtm ent. At some point, Alexander asked Jones and Harris to leav e, and Harris left. Harris later saw Jones carry ing Alexander’s telev i si on, and when she inqu i red what Jones w as doin g wi th i t, he stated that Alexander had “pawned i t to hi m.” Jones sold the telev i si on to a fri end of Rober t Crabt ree. Crabtr ee and Harris b oth liv ed across the streetfrom Alex ander’s apart ment. Harris went back to Alexander ’s apartment that ni ght, and although she saw someone look

ing thro ugh the peephole of the door , no one answered. When she ret urned the next day , the door w as l o ck e d and, again , no one answered. On Sunday

, Februar y 17, 2002, after notic ing that Alexander ’s apar tment li ghts were on all the tim e, Harr i s returned t o Alex ander’s apart ment wi th a fri end. When she and her fri end
a p p ro ached Alexander ’s door , they both smel l e d “a foul odor .” Later that ev ening when she saw a poli ce offi cer

, Harris asked the offi cer to chec k
on Alexander

. At some point that weeke nd , Jones called Crabtr ee and asked hi m if he had a

v ali d i denti fi cati on becau se Jones w ante d to pawn a m i crow av e. Indi anapoli s Polic e Offi cer St ephe n Hart ar
riv ed at Al e x a nder ’s apartment and notic ed a4 No. 12-3245
foul odor

. When he could not gain entry into the apartment, he called for the fire department to bring a ladder

. Once fi remen arri v ed, they gained entry into Alexander’s apartment thro ugh the back door

. They di scov ered Alexander ’s bo d y on the floor

. Hi s hands had be e n tied behind hi s back, hi s feet tied at the ankles, and a pi ece of cloth had been tied ov er his mouth as a gag. Alexander ’s body w as in an a d v a nced stage of decomposi tion.

... . During a poli ce inv esti gation, Harris i denti fi ed Jones as the person who had been in Alexander ’s apartment when she ha d last seen Alexander ali v e. [1 ] Indi anapoli s Polic e Detecti v e Charles Benner later di scov ered that Mr

. Jones w as w anted on three outstanding w arr ants. The poli ce located Mr

. Jo ne s, a r rested hi m and brought hi m to poli ce headquarters on Apr i l 10, 2002. Jones si gned a form dated April 10, 2002, t hat contained an “ AD V ICE OF RIGHTS” and “W AIVER OF RIGHTS.” Detective Benner interv i ew ed Jones and notic ed that the sol e s o f hi s shoes appeared to be the same s hoe print that he s aw on a p i llowcas e. Detecti v e Benner asked i f he could take Jones’s

Jones v. State, No . 4 9A 02 -1 00 6- PC-6 87, 2 01 1 WL 68 46 25 , at *1-2 (Ind. Ct. 1 App. Feb. 28 , 20 11 ) (quoti ng Jones v. State, No. 49 A0 2– 03 05 –CR–4 16 , sli p op. at 2-4 (Ind. Ct. App. Feb. 11 , 2 00 4) )

.No. 12-3245 5
clothing and shoes, and Jones sai d y es. The poli ce also interv i ew ed Jones t wi ce o n A pril 11, 2002, and Jones gav e tw o state ments. In hi s fi rst statement, Jones admi tt ed that he had spent the weekend of Februar y 8 at Alexander’s apartment. He denied that he had take n any of Alexander ’s things and claimed he di d not know what had happened to Alexander

. In hi s second statement, how ev er , Jones stated Alex an d e r had agr eed to giv e Jones hi s telev i si on in exchange for drugs. According to Jo ne s, at
some point, Alex a nd er w anted more drugs, becam e angry and ca me at hi m wi th a pocketk ni fe. Jones stated that he push ed Alexander , that Alexander’s h ead hi t the wall, and that Jones then hi t hi m in the head wi th hi s fi sts a few tim es. A l e x ander w as unc onsci ous, and Jones stated that he gather ed hi s things and left. He then returned and too k the telev i si on. He stated that he ret urned a thi rd tim e and deci ded to bind Alexander ’s hands and feet and g ag his mo uth. He stated that he sold the telev i si on to a ma n who li v ed across the street from Alexande r but deni ed taking the mi crow av e. [2 ]

Id

. at *2 (quo ting Jones , No . 4 9A 02 -0 30 5- CR-41 6, sli p o p. at 4- 5)

. 26 No. 12-3245
B. A few days after the interv i ew , the St ate charged Mr

. Jones wi th mu r d er

, felony murder

, ro bbery and cri minal confinement. He w ai v ed hi s right to a jury tr i al and p r o ce e d ed to a bench tr i al. Mr

. Jones’s couns el arg ued that Mr

. Jones had acted in self -d e fe nse, that he had not commi tte d the ro bbery and that Mr

. Jones had bound Alexander becau se of the further threat that Alexander posed. Counsel di d n ot m ove to s u p p ress the admi ssi on of Mr

. Jones’s clothing i tems, hi s admi ssi o ns reg arding his presence at Alexander ’s apar tment or a laborator y repo rt tying Mr

. Jones’s clothing t o t he cri me scen e. Indeed, Mr

. Jones’s couns el and the St ate sti p ul a ted to the laborat or y repo rt ’s admi ssibi li ty becau se, as Mr

. Jones’s tr i al
couns el explain ed, there w as no i ssu e about M r
. Jones’s presence in t he apartment on the day that Alexander w as kill ed. The tr i al court found Mr

. Jones gui lty , merged all the counts into the felony-murder count and en t e r e d a judgment of convic tion for felony murder

. It sentenced Mr

. Jones to si xty

fi v e y ears’ im pris onment. Mr

. Jones appealed hi s convic tion. On di rect appeal, he arg ue d that the St ate had presented insu ffi ci ent evidenc e for hi s felony-murder convic tion and that the tr i al court had err ed when i t i mposed sentence. The court of appe a l s a ff i rmed the convic tion and sentence. Mr

. Jones di d not seek tr ansfer to the Supreme Co urt o f Indi ana. Mr

. Jones then fi led a petiti on for state postconvic tion relief. The fi rst peti tion was wi thdrawn and replaced wi th a second, pro se pet i tion. Th e state t rial c ourt conduc ted an evi denti aryNo. 12-3245 7
hearin g on the petiti on, at whi ch Mr

. Jones’s tr i al atto rneys testifi ed. At the hearin g, Mr

. Jones inqui red whether the att or neys had consi dered objecting to the admi ssi on of evidenc e relat ed to the sei zure of hi s shoes on the basi s of Pirtle
v
. State, 323 N.E.2d 634 (Ind. 1975). One atto rney testifi ed that, i f they arr ested y ou on a w arr ant and they too k y our clothes in the or dinary course of taking y our clothes, uh, as part of their p r o ce d ur es for that, uh, i t’s a
v ali d arr est under the warr ant. And what they take from y ou as standard oper atin g procedures inci dent to that arr e st, uh, I don’t beli ev e that w ould be something that w ould be a problem. [3 ] In questi oning hi s other atto rney , Mr

. Jo nes asked: “Are y ou fami li ar wi th the laws wi th thi s state pert aining to a search for a person that’s in poli ce cus tody , that he mus t be informed of hi s r i ght t o consult wi th counsel b efore a v ali d consent can be giv en?” The atto rney responde d : “ That’s not the law .” 4 5 When Mr

. Jones explic i tly refer red t o P i rtle v
. State, the atto r ney testifi ed that “I think the i ssu es
... whether or not a person has been advis ed of that i s relev ant to that deci si on, but i t’s not
a requirement in our state.” He later sai d that, to hi s recollec- 6

Po stconvicti on Tr . 5 4. 3

Id

. at 14 3. 4

Id

. 5

Id

. 68 No. 12-3245 tion, he di d not object to the shoes becau se Mr

. Jones “w[as ]n’t denying that [he]’d been there atthe fellow’s apartment.” 7 At the hearin g, Mr

. Jones also questi oned Detecti v e Benner about hi s ini tial encounter wi th Mr

. Jones after he w as arr ested. Detecti v e Benner stated that, at that tim e, he r e quested Mr

. Jones’s shoes becau se he had observ ed that the print on the bott om of the shoes appeared to match a print that he had seen in p ho t o g r a p hs o f t h e c r i m e sc e ne

. A cc o r d ing t o Detecti v e Benner’s testim ony , he asked “i f [he] could hav e the shoes, and [ Mr . Jones] s ai d, y eah, no pro blem.” 8
Mr

. Jo nes also eli ci ted testim ony from Detecti v e Benner about hi s attempts to obtain a s tate ment from Mr . Jones: Q: And the day that y ou recov ered my shoes I di dn’t w ant to make a taped stat ement, di d I? A: Y ou sai d y ou were tired. Y ou asked me t o come back and get y ou the nextday

. Q: On the day

, on, on that day during our conv ersation, di dn’t I basi cally tell y ou I di dn’t know what happened to S a m, nev er saw Sam again , and deni ed being at the, at the scene? A: Y ou sai d that y ou wer e at the scen e. Y ou sai d y ou weren’t at the scen e when he w as kill ed

... .

... .

Id

. at 15 9. 7

Id

. 8No. 12-3245 9 Q: Okay

. The ne x t day after testing my shoes for blood di dn’ t y ou come back to, to tell me the things y ou knew? A: The tests for your shoes di dn’t come back for qui te a bi t long er

, but, no , I di d tell y ou some of th e things I knew in or der to get y ou to tell me the tr uth, y es. [9 ] As the heari

n g wa s conclu ding, Mr

. Jones offered testim ony on hi s own b ehalf. He s tate d: [T] he day that I w a s arr ested, tw o months had
a l r e a d y e l a p s e d b e t w e e n m y a r r e s t a n d Mr

. Alexander ’s death. And when I w as take n to downtown headquarter s, though I w as Mirandi zed, I w as not informed of my right to confer with
couns e l abo ut the possi bi li ty of consenting to, y ou know , before consenting to a search, y ou know , and my shoes being, and clothing being tested, y ou know , for blood. I also beli ev ed that becau se my
... shoe s were take n in violati on of my right, Four t h Amendment right, or possi ble Sixth Amendment right, that all the evidenc e learned or gain e d from that i llegal conduc t i s tainted and should hav e been excluded. [1 0 ] Follo win g t he hearin g, the state tr i al court deni ed relief. Ruling on Mr

. Jones’s clai m of ineff e ct ive assi stance wi th

Id

. at 23 6- 37

. 9

Id

. at 26 1- 62

. 1 010 No. 12-3245 respect to co uns el’s fai lure to mov e to supp ress Mr

. Jones’s i tems of clothing, the t rial c ourtconclu ded: 37. During hi s interr ogat i on of Jo nes, Detecti v e Charles Benner sought to obtain Jones’ clothing and shoes for compari son wi th evidence found at the cri me scen e. Jones v oluntarily prov i ded hi s shoes to the detectiv e. He w as not coerced or compelled in any fashi on to su r r ender hi s shoes and clothing to Benner.

... . 39. Jones has not demonstrate d that Benne r sei zed these i tems in violati on of ei ther the U.S. or Indi ana Constituti ons.

... . 87. Mor eov er

, as Jones wi lling l y gav e the shoes to the offi cer

, Jones has not demonstrate d that hi s couns e l w o uld hav e been suc cess ful in seeking a motion to suppress. [1 1 ]
Mr

. Jones appealed to the Court of Appeals of Indi ana and reiterat ed hi s clai m that “hi s tr i al atto rneys were ineffec tiv e for fai ling to fi le a motion t o supp ress e videnc e and for fai ling to object to the admi ssi on of thi s evidenc e at tr i al.” He con- 1 2 t e nded that “hi s tr i al atto rneys should hav e challen ged th e

R.23- 6 (Fi ndings of Fact and Co nclusi ons of Law Denying P o st

1 1 Co nv i cti on Rel i ef) at 48 , 5 7 ( ci tatio ns omi tted).
Id

. (M r. J ones’s po stconvicti on brie f) at 24. 1 2No. 12-3245 11
admi ssi bi li ty of ev ide nce based upon the legal doctrines
enunc i ated in Pirtle and Sims [ v
. State, 413 N.E.2d 556 (Ind. 1980)].” Mr

. Jones pointed out that there w as no questi on that

1 3 he w as in cus tody at the tim e Detecti v e Benner requeste d his shoes and that he w as not advis ed of hi s right to consult wi th
couns el before surrendering hi s shoes. He also maintained that the search w as “unli mi ted,” and, therefor e, clearly fell wi thin th e r ul e of Pirtle

. Fin ally , he urged the court to rej ect the 1 4 St ate’s arg ument that the admi ssi on of the shoes w as harmless becau se he had not co nt e st ed hi s presence at the scen e of the cri me: “[T] he theor y of self- defense resulted from Jo nes’s statements to the poli ce. Those incri minating statements were the pois onous frui ts of the i llegal, w arr antl e s s s ei zure of Jones’s cloth es and shoes. Challenging the w arr antless sei zure of the clothes and shoes w ould also preclude the admi ssi bi li ty of the statements.” 1 5 In response, the State fi rst argued that Pirtle di d not apply because, “[w] hen a search i s less inv asiv e than an unli mi ted search, an offi cer i s not required to advis e a sus pect of hi s right to consu lt wi th an atto rney before consenting to the search.” 1 6 Addi tionally

, the St ate maintained that “Jones co nc e ded that he w as at Alexander ’s ho me that ev ening, and, thus, hi s

Id

. at 25 (f oo tnote o mitted ). 1 3

Id

. at 27. 1 4

Id

. at 29

. 1 5

R.2 3- 7 ( State’s po stconvicti on appel l ate b ri ef) at 22

. 1 612 No. 12-3245
defense was not n egat i v ely i mpacted by any evi dence related to hisshoes.” 1 7 The Court of Appeals of Indi ana affi rmed the deni al of state postconvic tion relief. It held that Mr

. Jones w as not prej udi ced by hi s couns el’s fai lure to object to the laborat or y repo rt

. It stated: Jones appears to arg ue that his tr i al couns el w as ineffec tiv e for fai ling to fi le a motion to su ppress or object to the admi ssi on of hi s sh o e s and clothes. Jones arg ues that hi s tr i al atto rne y s “should hav e challen ged the admi ssi

bi li ty of evidenc e based upon the legal doctrines enunc i ated in” Pirtle v

. State, 323 N.E.2d 634 (1975) , and Sims v
. State, 413 N.E.2d 556 (1980). Appellant’s Brief at 18. Jones arg ues that “the theor y of self- defense resulted from [hi s] statements to the poli ce,” a nd that “[t]hose incri minating statements were the pois onous frui ts o f t he i llegal,

w arr antless sei zure of Jones’s clothes and shoes.” Id. at 22.

... . Jones does not dev elop a cogent arg ument that the
mere admi ssi on of hi s shoes or clothing prej udi ced hi m. As the St ate points out, Jones admi tte d to being present in Alexander ’s apartment and striking hi m. T o the ext ent that Jones suggests that hi s statements to the poli ce clai ming s elf-defense were the pois on-

Id

. 1 7No. 12-3245 13

ous frui ts of the seiz ur e o f hi s clothes and shoes, Jon e s d oes not arg ue that these statements were obtained as a di rect r esult of the s earch of hi s shoes and clothing. Further

, we note tha t the Laborat or y Examinati on Repor t indi cating that the DNA profile from Jones’s shoe matche d Al e xan d e r’s DNA profile

w as dated Februar y 2 7, 2003, well after Jones’s statements to the poli ce in April 2002. W e cannot say that Jones has demonstrate d that he w as prej udi ced by the admi ssi on of hi s shoes or clothing
. Accordingly , hi s clai m of ineffec tiv e assi stance on thi s basi s fai ls. [1 8 ] The Supreme Courtof Indi ana deni ed tr ansfer

.

C. Havin g exhausted hi s av ai lable state rem e d ies, Mr

. Jones then fi led a petiti on for federal habeas relief. S e e 2 8 U

. S.C. § 2254. He asserted, again , that hi s t rial counsel w as ineffec- 1 9 tiv e for “fai l[ing] to tr y to supp ress inculpator y evidenc e and fai l[ing] to object to i ts admi ssi on at tr i al.” The di stric t court 2 0 conclu ded that the st a te a p p e l l a te c ou rt c or rectly had i denti fi ed Strickland v
. W

ashington , 466 U.S. 668 (1984), as art i culating the

Jones , 20 11 WL 68 46 25 , at *9 ( f o o t no t e omi tted) (parall el ci tatio ns 1 8 omi tted).

The di stric t cour t had juri sdi cti on over Mr. Jo ne s’ s ha be as peti tio n 1 9 pursuant to 28 U. S.C. § 22 54 (a).

R.1 at 4. 2 014 No. 12-3245 governing federal consti tuti onal prin ci ple and that i t had take n

“ the consti tutional standard seri ously an d p ro d u c e d an an s we r wi thin t he range of defensi ble posi tions .” Consequently , the 2 1 court deni ed habeas relief and deni ed Mr

. Jones a certifi cate of appealabi li ty. Mr

. Jones fi led a notic e of appeal and sought a certifi cate of appealabi li ty from thi s court. The certifi cate w as gr anted, and 2 2 the case w as set for arg ument.

II DISCUSSION A. W e fi rst set forth the legal prin ci ples that mu st govern our inqui ry

. W e rev i ew the di stric t court’s deni al of habeas relief de
nov o. Arredondo v
. Huibregtse, 5 4 2 F .3d 1155, 1167 (7th Ci r
. 2008). Our rev i ew of the un d e r l yin g state court adjudi cati on, how ev er , i s deferential. Under the Antiterro ris m and Effec tiv e Death Penalty Act (“AEDP A”), when a state court adjudi cates
a petiti oner’ s clai m on the merits, a federal court may gr ant habeas relief only when the state court’s adjudi cati on of the clai m (1) resulted in a deci si on that w as contrar y to, or inv olv ed an unreasonable appli cati o n of, clearly

R.3 5 at 3 , 5

. 2 1

We ha ve j u r i sdi cti on over Mr. Jo nes’s appeal pursuant to 28 U.S .C. 2 2 §§ 12 91 and 22 53 (a).No. 12-3245 15
establi shed Feder al law , as deter mined by the Supreme Co urt of the Uni ted St ates; or (2) resulted in a deci si on that w as based on an unreaso na bl e deter minati on o f the facts in li ght of the evidenc e presented inthe St ate courtproceeding. 28 U.S.C. § 2254(d). Here, the Court of Appeals of Indi ana corr ectly conclu ded that Mr

. Jones’s ineffec tiv e assi stance of couns el clai m i s g o ver ned by Strickland v
. W ashington , 466 U.S. 668 (1984 ). Under Strickland, a defendant mus t show that (1) couns el’s perfor manc e fell “outsi de the wi de r ange of professi onally compe tent a s s i s tan c e ” an d ( 2) “there i s a reasonable probabi li ty that, but fo r couns el’s unprofessi onal err or s, the result of the proceeding w ould hav e been di fferent.” Id. at 690, 694. A court consi dering a clai m of ineffec tiv e assi stance
mus t apply a “stro ng presumpti on” that couns el’s

r e presentation w as wi thin the “wi de range” of reasonable professi onal assi stance. The challen ger ’s burden i s to show “that couns el made err or s so seri ous that couns el w as not functi oning as the ‘counsel’ guarante ed the d e fendant by the Sixth Amendment.” Harrington v
. Richter, 131 S. Ct. 770, 787 (2011) (ci tation omi tte d) (quoting Strickland, 466 U.S. at 689, 687). In asses sing prej udi ce under Strickland, the defendant mus t demonstrat e that, in the absenc e of co unsel’s mi sstep, there i s a reasonable li kelih ood that the result w ould have be e n di fferent. See Strickland, 466 U.S. at 694. “Thi s does not require a showing that couns el’s acti ons ‘more li kely than not alter ed the outcome’”; nev erthe-16 No. 12-3245 less, “[t]he li kelih ood of a di fferent result mus t be sub stanti al, not just conceiv able.” Harrington , 131 S. C t

. at 792 (quoting Strickland, 466 U.S. at693). Under AEDP

A, how ev er

, Mr

. Jones mus t not si mply sati sfy the Strickland stand a r d ; he also mus t establi sh that the state court’s appli cat io n of Strickland w as unreasonable. As the Supreme Co urt has noted, thi s i s not an easy task: As a condi tion for obtaining habeas corpus from a federa l court, a state pris oner mus t show that the state court’s ruling on the cla im bein g presented in federal court wa s so lacking in justifi cati on that there

w as an err or well understood and comprehended in exis tin g law bey ond any possi bi li ty for fairminded di sagreement. Id. at 786-87. Sim i larly , w e ha v e observ ed that the bar for establi shing the unreasonablenes s of a state court’s appli cati on of Strickland “i s a high one, and only a clear err or in applying Strickland wi ll supp or t a wri t of habeas corpus.” Allen v
. Chandler, 555 F .3d 596, 600 (7th Ci r . 2009).

B. Wi th t hese standards in mind, we turn to Mr

. Jones’s sub mi ssi ons. He maintains that hi s tr i al couns el w as ineffec tiv e for fai ling to seek the supp ressi on of hi s shoes a nd r elated evidenc e on the basi s of Pirtle v
. State, 323 N. E.2d 634 (Ind. 1975). In Pirtle, the Supr eme Courtof Indi ana recog ni zed the right of those in cus tody to hav e the advice o f couns el at the point where a consent toNo. 12-3245 17
search i s requested, and expr essly and clearly i mposed upon the St ate the burden in cour t of demonstrating an explic i t w ai v er o f such right as a condi tion to intro ducing the frui ts of such searches. Sims v
. State, 413 N.E.2d 556, 559 (Ind. 1980), overruled on other grounds by W

rig h t v
. State, 658 N.E.2d 563, 570 (Ind. 1995). Mr

. Jones sub mi ts that, had hi s couns el objecte d to thi s evidenc e, then hi s clothing, hi s statements to the poli ce and the laborat or y repo rt all w ould hav e been supp ressed. Further

more, in hi s view

, had “the clothing, shoes, and deriv ativ e evidenc e” been supp ressed, “there i s a reasonable probabi li ty that the fact finder w ould hav e had a reasonable doubt about gui lt.” 2 3 In reply , the St ate fi rst arg ue s t ha t Pirtle appli es only to requests for unli mi ted searches of a dwelling or automobil e, not to a speci fi c request for i tems of clo t hin g
. I t invites our atte nti on to a numb er of cases deci ded sub sequent to Pirtle that appear to hav e narro wed consi derably Pirtle ’s appli cati on. It 2 4

A ppel l ant’s Br. 27

. 2 3

See, e.g. , Garcia-T

orres v
. S t a t e, 94 9 N.E.2 d 12 29 , 12 38 -3 9 (Ind. 20 11 ) 2 4 (noti ng tha t “ Pirtle and the ensuing cases hav e appli ed this rul e onl y to the wei ghtiest i ntrusio ns,” ob serving tha t i t “has suppressed evidence b ased on Pirtle when the pol i ce searched ei ther a home or a v ehic l e” and refusi ng to apply the rul e of Pirt l e t o r e quests fo r cheek swab s); Dat zek v. State, 83 8 N.E.2 d 11 49 , 11 60 (Ind. Ct. App. 20 05 ) (hol di ng tha t Pirtle i s not appli cab l e to chemical b l oo d tests); Schm idt v. State, 81 6 N.E.2 d 92 5, 94 4 (Ind. Ct. App. 20 04 ) (hol di ng tha t Pirtle i s not appli c abl e t o chemical b reath tests); Ackerman v . Sta te, 7 74 N.E. 2d 97 0, 98 1- 82 (Ind. Ct. App. 20 02 ) ( i denti fyi ng (co ntinued. ..)18 No. 12-3245
also notes that, ev en i f there had been a mi sstep by couns el, the state appellate court reasonably conclu ded that Mr

. Jones w as not prej udi ced by couns el’s fa ilur e to mov e to supp ress the shoes becau se he “admi tte d to being p r e sent in Alexander ’s apartment.” Jones v
. State, No. 49A02–1006–PC–687, 2011 W L 684625, a t * 9 (Ind. Ct. App. Feb. 28, 2011). Sim i larly , the St ate sub mi ts, the Court of Appeals of Indi ana re a s on ab ly c on c lu ded that, “[t]o the ext ent that Jones suggests that hi s statements to the p olic e clai ming self- defense were the pois onous frui ts of the s ei zure of hi s clothes and shoes, Jones does not argue that these statements were obtained as a di rect result of the s earch of hi s sh oes and clothing.” Id. Fin ally , the St ate asserts that, ev en wit ho ut the clothing, laborat or y repo rt and statements, ther e wa s su ffi ci ent evidenc e to supp or t Mr

. Jones’s convic tion, inclu ding D e te c tiv e Benner’s testim ony that the shoes Mr

. Jones w as wearing matched those at the scen e, the di scovery of Mr

. Jones’s blood insi de Alexander’s apartment, and the possess i on by Mr

. Jones of Alexander’s telev i si on and mi crow av e.

1. W e begin by consi dering whether Mr

. Jones’s tr i al couns el’s perf o rmance fell “outsi de the wi de range of professi onally

( ...c onti nued) 2 4 “the purpo se of the Pirtle do ctri ne” as “ensur[i ng] tha t no perso n i n custody consents to an unlimited search unless she i s ful l y i nfor med of the consti tutio nal rights she i s waiving” and refusi ng to apply the rul e with respect to requests fo r fi el d so b ri ety tests (e mpha sis adde d))

.No. 12-3245 19 competent assi stance.” Strickland, 466 U.S. at 690. Becaus e the Court of Appeals of Indi ana di d not reach thi s i ssu e, there i s no state -court deter minati on to whi ch we mus t defer under AEDP A, and we there fore consi der the que st io n of couns el’s perfor manc e de nov o. Sus sman v
. Jenkins , 636 F .3d 329, 350 (7th Ci r
. 2011) (stating that i f the state co ur t does not reach the merits of one prong of the Strickland anal ysi s, then federal

r e v iew of that prong “i s not ci rcums cribed by a state co ur t conclu si on, and o ur r eview i s de nov o” (internal quotat i on marks omitted)). “There is no federal consti tutional right to couns el before consenting to a sear ch ev en i f the sus pect i s in cus tody

. How ev er

, Pirtle v
. State, 323 N.E.2d 634 (1975), establi shed that Art i cle I, secti on 11 of the Indi ana Constituti on requires that a person in custody explic i tly w ai v e the right to couns el befo re giving a v ali d consent to a search.” Clarke v
. State, 868 N.E.2d 1114, 1119 (Ind. 2007) (ci tation and parallel ci tation omi tte d). “[T] he purpose of the Pirtle doctrine i s to ensure that no person in cus tody consents to an unl imited search un l e ss she i s fully informed of the consti tutional rights she i s w aiving.” Ackerman
v
. S tate, 774 N.E.2d 970, 981 (Ind. Ct. App. 2002) (emphas is added). Later cases hav e made i t clear that Pirtle appli es “only to the wei ghtiest intrusi ons”; when poli ce hav e asked to conduc t “mini mally int r usive” searches, Indi ana courts hav e held that Pirtle does not apply

. Garcia-T orres v
. State, 949 N.E.2d 1229, 1238 (Ind. 2011). Thus, the Supreme Court of Indi ana has supp ressed evidenc e based on Pirtle when the police hav e sear ched a home or a v ehi cle, but has r efus ed “to ext end t hat

r ul e ” to poli ce requests for cheek sw abs for the purposes o f DNA testing. See id

. at 1238-39 (ci tin g P i r tl e, 323 N.E.2d 63420 No. 12-3245 (home search) , and Sell mer v
. State, 842 N.E.2d 358 (Ind. 2006) (v ehi cle search))

. Sim i larly , the state courts of appeals hav e not appli ed Pirtle to cus todial requests for chemi cal blood tests, see Datz ek v

. State, 838 N.E.2d 1149, 1 1 5 8

– 6 0 (Ind. Ct

. App. 2005); to chemi cal breath tests, see Schm idt v
. State , 816 N.E.2d 925, 942–44 (Ind. Ct. App. 2004); or to fi eld sobri ety tests, Ackerman , 774 N.E.2d at 979–82. The courts hav e expla ine d that these types of searches are “quali tativ ely di fferent from the gener al, unli mi ted searches that concerned the Pirtle court”; they do not allow poli ce to tr oll for evidenc e of any t y pe of cri minal acti vity , but are li mi ted in scope and “take li ttle tim e to admini ster .” Datz ek

, 838 N.E.2d at 1159-60 (internal quot ation marks omitted). Here, De t ecti v e Benner’s request for Mr

. Jones’s shoes fi ts comfortably wi thin the catego ry of searches to which Pirtle d oes not apply

. It w as li mi ted in scope and w as mini ma l l y intrusi v e—certain ly less so than a blood sampl e or ev en a cheek sw ab. Mr

. Jones has not come fo r w a r d wi th any examp l e s of Indi ana cases that hav e required Pirtle w arnin gs in ci rcums tances si mi lar to hi s, nor i s there any indi cati on t ha t Indi ana courts are inclined to ext end the rule of Pirtle to apply in su ch c i rcums tances. W e hav e explained that a clai m of ineffec tiv e assi stance based on couns el’s fai lure to object i s “tied to the admi ssi bi li ty of the under lyin g evidenc e.” Hough v
. Anderson , 272 F .3d 878, 898 (7th Ci r
. 2001). If evidenc e admi tte d wi thout objection i s, in fact, admi ssi

ble, t he n “fai ling to object to [that] evidenc e cannot be a professi onally ‘unreasonable’ acti on.” Id. The same rat i onale appli es to couns el’s fai lure to mov e to supp ress; i f theNo. 12-3245 21
evidenc e w ould not hav e been supp ressed, then the f ai lure to
mov e for supp ressi on of that evidenc e i s not professi onally unreasonable. In th e p resent case, had Mr

. Jones’s couns el
mov ed to supp ress the shoes, or any e videnc e that resulted from the t esting of the shoes, on the basi s of Pirtle, we beli ev e that the state co urt w ould hav e deni ed that motion. Consequently , tr i al couns el’s fai lure to press an unav ai ling arg ument based on Pirtle w as not “outsi de the wi de range of professi onally competent assi stance” that Str ickla nd a l l ows, Blake v
. United States , 723 F .3d 870, 879 (7 t h Ci r
. 2013), and tr i al couns el w as not constituti onally in effecti v e.

2. The deter min a tiv e i ssu e for the Court of Appeals of Indi ana, how ev er

, w as not couns el’s p e rfor manc e, but, instead, the re sulting prej udi ce. The s tate appellate court held: Jones does not dev elop a cogent arg ument that the
mere admi ssi o n o f his shoes o r clothing prej udi ced hi m. As the St ate points out, Jones admi tte d to being present in Alexander ’s apartment and striking hi m. T o the ext ent that Jones suggests that hi s statements to the poli ce clai ming s elf-defense were the pois onous frui ts of t he se iz ure of hi s clothes and shoes, Jones does no t arg ue that these statements were obtained as a di rect result of the search of hi s sh oes and clothing. Further

, we note that t he Laborat or y Examinati on Repor t indi cating that the DNA profile fro m Jones’s shoe matched Alexander ’s D N A p ro fi l e
w as dated Februar y 27, 2003, well after Jones’s22 No. 12-3245

statements to the poli ce in April 2002. W e cannot say that Jones has demonstrate d that he w as prej udi ced by the admi ssi on of hi s shoes or clothing. A cc or dingly , hi s clai m of ineffec tiv e assi stance on thi s basi s fai ls. Jones , 2011 WL 684625, at *9. Becaus e the Court of Appeals of 2 5 Indi ana resolv ed the prej udi ce prong again st Mr

. Jones on the merits, we apply AEDP A deference to thi s determin ation. See T oli v e r v
. McCaughtry, 539 F .3d 766, 774-76 (7th Ci r
. 2008) (applying AEDP

A standard to prej udi ce p r o ng of Strickland analysi s wh ere stat e court r eached that i ssu e on the mer i ts).

E arli er i n its d i scussio n, the co urt note d: 2 5

Jo nes appears to fo cus his a rguments on the admissio n of his cl othes and shoes. Jo nes also states tha t “ al l of the i nculpato ry evidence was admissible ” an d tha t “the statem ents were i nadmissible. ” Appe l l ant’s Bri ef at 22

. To th e extent th at Jones cha llenges evidence oth er th an his shoes and cloth es , we con c l u d e tha t Jo nes fail s to put fo rth a coge nt argument. Co nsequently, this i ssue i s waived.
Jones , 20 11 WL 68 46 25 , at *9 n.6 (emphasis added ). Mr. Jo nes’s statements to Detecti v e Benner fall i nto the category of i nculpato ry evidence “o ther than his shoes and cl othes.” The appell ate cour t’s opi nio n, therefo re, coul d b e v i ewed as a deter min at i o n tha t Mr. Jo nes had waived any argument
conce rning his statem ents fo r fail i ng to develo p adequa tel y tha t argument. Because the cour t, i n the b od y of i ts opi nio n, di rectl y addresses Mr. Jo nes’s statem ents to the pol i ce, we b el i eve tha t the state cour t’s deci sio n i s b est read as deter mini ng tha t Mr. Jones did n ot meet hi s sub stantive b urden of estab l i shing a connecti on b etween the all egedl y i l l egal sei zure and the l ater statem ents.No. 12-3245 23
W e ca nn o t say that thi s conclu si on by the state court of appeals i s in any w ay unreasonable. First, the court corr ectly di scerned that Mr

. Jones had the burden o f e st abli shing that the unc ounseled seizure of hi s clothing resulted in the prej udi

ci al admi ssi on of evidenc e again st hi m. In Pirtle, 323 N.E.2d at 642, the Supreme Court of Ind ia na set forth the allocati on of burdens of proo f wi th respect to the frui t of the pois onous tr ee d o ct rine. It held that the defendant has the ini tial burde n o f prov ing that an i llegal search too k place and that the evidenc e at i ssu e w as a “fr uit ” of that search. Id. At that point, the 2 6 burden shi fts to the St ate t o e st abli sh that the evidenc e falls wi thin some exception to the exclusi onary ru l e

. Id. ; see also Herald v
. S tate, 511 N.E.2d 5, 8 (Ind. Ct. App. 1987). Here,

As noted previo usly, i t i s cl ear tha t the appli catio n of Pirtle i s a questio n 2 6 of state l aw. See Clarke v. State, 86 8 N.E.2 d 11 14 , 11 19 (Ind. 20 07 ) (explai ning tha t Pirtledoes not have i ts ro ots i n the fed eral Co nstituti on but in A rti cl e I, secti on 11 of the Indi ana C onsti tutio n). Nevertheless, we note tha t the approach of Indi ana cour ts with respect to estab l i shing a nexu s p arall el s tha t taken b y the fed eral co urts. See Gardner v. United States , 68 0 F.3d 10 06 , 10 11 (7 th Ci r. 20 12 ) (“ A def endant seeki ng to hav e evidence suppressed as the frui t of an i l l egal search need onl y estab l i sh a factual nexus b etween the ille g a lit y an d the ch alle n g ed evid ence.” (i nternal quotatio n marks omi tted)) ; United States v. Ienco , 18 2 F.3d 51 7, 52 8 (7 th Ci r. 19 99 ) (ci ting United States
v. Kandik , 63 3 F.2d 13 34 , 13 35 (9 th Ci r. 19 80 ), fo r the pro posi t i o n t ha t the “de fendant has the i niti al b urden o f e stab l i shing a factual nexus b etween the i l l egali ty and the c ha l l e nged evidence” ); see also United States v. Ries selman , 64 6 F.3d 10 72 , 10 79 (8 th Ci r. 20 11 ) (“ In or der to d e t e r mi ne whether chall enged evidence i s the frui t of an i l l egal search or sei zure, the def endant b ears the i niti al b urden of estab l i shing the factual nexus b etween the consti tutio nal v i ol atio n and the c ha l l enged evidence. ” (i nternal quotatio n marks omi tted)) ; United States v. Nav a-Ramirez , 21 0 F.3d 11 28 , 11 31 (1 0th Ci r. 2 00 0) (same).24 No. 12-3245
there fore, the burde n w a s on Mr

. Jones to prove that the
se izure of hi s shoes w as unlaw ful and “that the challen ged evidenc e”—here hi s statements—“w as av ai lable to the St ate as a factual result of the poli ce offi cers’ illeg al acti vity .” Herald, 511 N.E.2d at 8. In hi s bri ef to the Court of Appeals of Indi ana, how ev er , Mr

. Jones ma de no atte mpt to meet hi s burden by establi shing thi s connecti on. Hi s arg ument that hi s statements
were frui ts of the i llegal search consi sted of the following conclu sory statement: [T] he the o r y of self- defense resulted from Jones’s stat e ment s t o the poli ce. Those incri minating statements were the pois onous frui ts of the i llegal,

w arr antless sei zure of Jones’ s clothes and shoes. Challenging the w arr a ntless sei zure of the clothes and shoes w ould also preclude the admi ssi bi li ty of the statements. W

ong Sun v
. United States , 371 U.S. 471, 487, 488 (1963); see also, Jackso n v
. S ta te, 669 N.E.2d 744 (Ind. Ct. App. 1996). [2 7 ] In the absenc e of further arg ument by Mr . Jones, the Court of Appeals o f I ndi ana w as j usti fi ed in concluding that Mr

. Jones had not me t his burden of establi shing a connecti on betw een the sei zure of hi s cl othes and hi s statements.

3. Nev ertheless, Mr

. Jones maintains that, despi te thi s faci ally apparent reasonableness, the Court of Appeals of Ind iana’s

R.2 3- 6 ( Mr. Jo nes’s postco nv i cti on appel l ate b ri ef) at 29

. 2 7No. 12-3245 25
deci si on actually w as “patently unreasonable” becau se, in the earlier postconvic tion hearin g in the state tr i al court, the judge had “deni ed hi m the oppor tuni ty to dev elop evidenc e that the statements were indeed obtained as a di rect result of the search of hi s clothes and shoes during Jones’s post-convic tion exami

nati on of Benner .” Speci fi cally , Mr

. Jones points to the 2 8 following excerpt from Detecti v e Benner’s testim ony at the state postconv i cti on hearing before the t rial c ourt : Q. Okay

. The ne xt day after testing my shoes for blood d i dn’t y ou come back to, to tell me the things y ou knew? A. The tests fo r y our shoes di dn’t come back for qui te a bi t long er

, but, no , I di d tell y ou some of the things I knew in or der to get y ou to tell me the tr uth, y es. Q. B ut in y our—I ’m, I’m making refer ence to Mr . Benner’s— MR. CAMPBELL: Y

our Honor

, I o bj e ct to thi s whole line of questi oning. It i s i rr elev ant to a postconvic tion reli ef proceedin g. THE COUR T : Response? What are y ou tr yin g to prove? MR. JONES: That my

, my r ights were violated. Not only was my

, my , my shoes take n wi thout consent und er the Four th Amendment,—

A ppel l ant’s Br. 24

. 2 826 No. 12-3245
THE COUR T : W

ell, that, that’s your arg ument. He sai d, he says y ou hav e consent. MR. JONES : Ri ght. THE COUR T : And what are y ou tr yin g to show? MR. JONES: T

o show that all t he eviden ce a ft er the ini tial m i scondu ct by the polic e i s tainted. THE COUR T : W

ell, the C ourt wi ll assu me that, becau se the law says that i f there w as a violati on of y our rights, at that point any evidenc e d eriv ed from that w ould be inadmi ssi ble. Y o u don’t hav e to establi sh what other evidenc e he had after that. MR. JONES : Okay

. [2 9 ] In li ght of the tri al judge’ s statements, Mr

. Jones arg ues that i t
w as unreasona ble for the state appellate court “to deter mine that [he] fai led to make a co g e nt arg ument when, in fact, he had made ( and w on) the arg ument below .” 3 0
W e beli ev e that a close examinat io n of the entire recor d requires the conclu si on that there i s no merit to thi s arg ument. First, as a prelim inary matter , i t i s incorr e ct to say that Mr

. Jones “made (and w on) [hi s] arg ument” before the Indi ana tr i al court

. T

rue enough, the tr ansc ript shows that the St ate 3 1 objecte d to Mr

. Jones’s line of questi oning and tha t t he tr i al

Po stconvicti on Tr . 2 37 -3 8. 2 9

A ppel l ant’s Br. 25

. 3 0

Id

. 3 1No. 12-3245 27

court i mpli ci tly sus tained that objection on the gr ound that the
co urt w ould assu me that any evidenc e derived from a violation of Mr

. Jones’s rights w as inadmi ssi ble. It i s also tr ue that the tr i al court’s ruling w as problematic

. Although “[g]enerally speaking, evidenc e obtained pursuant t o an unlawfulsei zure mus t be excluded un d e r the frui t of the pois onous tr ee doctr ine,” the burden i s ini tially on the defenda nt t o show “that the evidenc e w as a ‘frui t’ of that search,” that i s, that the evide nc e w as deriv ed from the consti tutional violati on. Clark
v
. State, 994 N.E.2d 252, 266 (Ind. 2013). Therefore , the b urden

w as on Mr

. Jones to establi sh that t he e v idence he sought to supp ress, namely hi s incri minating statements to t he poli ce,
w as “deriv ativ ely gain ed as a result of information learned or leads o btained” fr om the sei zure of the clothing. Id. Th e state tr i al cour t, t he r e fo r e, should not hav e pret ermitted Detecti v e Benner’s testim ony , whi ch had the potent i al to tie the allegedly i llegal sei zure of the clothing and shoes to Mr

. Jones’s statements the followin g day

. At the tr i al court lev el, how ev er , thi s mi sstep di d not play
a part in the court’s deci si on. In denying postconvic tion relief, the state tr i al court di d not reach the questi on of whether there

w as a relat i onshi p bet w e e n the sei zure of the shoes and Mr

. Jones’s statements becau se it conclu ded that Mr

. Jones

v olunta ri ly had surrendered the clothing. Therefore , c ontr a ry 3 2 to his asserti on, Mr

. Jones di d not prev ai l on hi s claim before the tr i al court: He d id no t persuade the tr i al court that the sei zure of hi s shoes w as i llegal and that the seizure tainted the tr i al process. The tr i al co ur t d i sagreed wi th Mr

. Jones wi th

See supra at 10

. 3 228 No. 12-3245 respect to the i llegali ty and, consequently , did no t reach the questi on of nexus. When Mr

. Jones appealed, he had to convin ce the Court of Appeals of Indi ana that he w as entitled to relief. Speci fi cally , he had to establi sh that the seizure of hi s shoes w as in violati on of Pirtle and that hi s subsequ ent incu lpator y statements were the result of Detecti v e Benner’s fai lure to observ e the stric tures of Pirtle

. Therefore , in making hi s arg uments t o the appellate court, it w as incu mbent upon Mr

. Jones to address both the tr i al court’s ruling on the scope of Pirtle as well the tr i al court’s
err or that i mpeded hi m from dev elopin g a recor d that he w as prej udi ced by the Pirtleviolati on. Mr

. Jones fai led wi th respect to thi s second burden. He di d not atte mpt to explain how hi s statements—made the day after he had surrendered hi s clothing to Detecti v e Benner, a fter addi tional Miranda w arnin gs had been giv en, and long before the laborat or y tests on hi s shoe s were completed—were “frui ts” of the “pois onous” sei zure o f hi s shoes. Notably , he
nev er invited the appellate court’s atte nti on to t he speci fi c err or by the tr i al court that, in hi s v ie w , p r ev ented hi m from establi shing thi s point. I nste ad, he merely asserted, without 3 3

B efo re this co urt, M r. J ones has invited o ur attentio n to that po rti on o f 3 3 the state postco nv i cti on pro ceed i ngs i n which he attempted to estab l i sh the connecti on b etween the Pirtle v i ol ati o n an d his i nculpato ry statem ents through the testimo ny of Detecti v e Benner. See supra at 25 -2 6. We note, how e ve r , tha t Mr. Jo nes also testif i ed duri ng the postco nv i cti on pro ceed

i ngs. See supra at 9. In tha t testimo ny, Mr. Jo nes stated tha t he “beli eved tha t b ecause my ... sh o e s we re taken i n v i ol atio n of my r i ght, Fourth Amendment ri ght

, or possi b l e Si xth Amendment ri ght, tha t all the evidence l earned (co ntinued. ..)No. 12-3245 29

ar gumen t or elabora tion , that the statements were inadmi ssi ble
as frui ts of the pois onous tr ee: “Th os e in c riminating statements
were the pois onous frui ts of the i llegal, warr antless sei zure of Jones’s clothes and shoes. Challenging the w arr antless sei zure of the clothes and shoes w ould also preclude the admi ssi bi li ty of the statements.” In li ght of thi s o mi ssi on, we cannot fa ul t 3 4

( ...c onti nued) 3 3

or gained fro m tha t i l l egal conduc t i s tainted and shoul d hav e b een e xc l uded. ” Postco nv i cti on Tr. 26 2. Mr. Jo nes, however, di d not of fer any addi tio nal testimo ny explaini ng how the two we r e r el ated, i .e., why Detecti v e Benner’s sei zure of his shoes pro mpted him to mak e i nculpato ry statem ents. Thus, even i f Mr. Jo nes had argued to the state appell ate cour t tha t the tri al cour t erre d i n curtail i ng his exa minatio n of Detecti v e Benner, i t i s not cl ear tha t the tri al cour t’s actio n prevented him fro m estab l i shing
a connecti on b etween the all egedl y i l l egal sei zure and his l ater statem ents.

R.2 3- 6 ( Mr. Jo nes’s postco nv i cti on a ppel l ate b ri ef) at 29 . There are two 3 4

o t he r refe rences to the frui t of the poi sono us tree do ctri ne i n Mr. Jo nes’s b ri ef to the Co urt o f A p p e als of Indi ana

. Nei ther help s to estab l i sh the connecti on b etween the sei zure of Mr. Jo nes’s shoes and his sub sequent statem ents to pol i ce. Fir st, i n the facts secti on o f his b ri ef, Mr. Jo nes states tha t, the day fo l l owi ng hi s arrest, “Detec tive Benner returned to qu e st i on Jo nes aga i n. Jo nes was conf ro nted with evidence obtained fro m the shoes, to wit; mat ched shoepri nts an d i nv i sible traces o f blo od , which Jo nes was compe l l ed to explain (R.16 2- 16 5)

. Jo nes then m a de incrimi nati ng statem ents and was arrested and charged fo r Al exander’s murder. ” Id

. at 12

. Mr. Jo nes- ’s ci tatio n to the rel evant p or ti ons of the postco nv i cti on trans cri pt, however, refe rences testi mony byo ne o f hi s attorneys, and that testimo ny concer ns the reasons why he did not object to the sh oe s and l ab or atory re por t. Tha t t e st i mo ny do es not estab l i sh, i ndeed even mentio n, wha t may hav e pro mpted M r. J ones to gi v e statements to the po l i ce o n Apri l 11 , 2 00 2. The seco nd mentio n of the co nn e c t i on b etween the shoes and the statem ent i s set fo rth i n Mr. Jo nes’s “S umma ry of the Argument,” i n which (co ntinued. ..)30 No. 12-3245
the Court of Appeal s of Indi ana for deter mining that the cursory arg um e nt presented to i t fai led to meet Mr

. Jones’s burden. By deter mining that Mr

. Jones had not establi shed that the admi ssi on of incu lpator y evi dence w as the resul t of any Pirtle
err or , the Court of Appeals of Indi ana reasonably conclu ded that the second, so-call ed prej udi ce prong of Strickland had not been sati sfi ed. Consequently , on habeas rev i ew

, we ca nnot conclu de that Mr

. Jones w as prej udi ced by any fai lure of his tr i al couns el. Accordingly

, the di stric t co ur t corr ectly deter mined that Mr . Jones hasnot met hisburden of establi shing hi s statutor y eli gib i li ty fo r federal habeas relief

.

( ...c onti nued) 3 4 he states:

Tri al counsel [] f ai l ed to try to suppress i nculpato ry evidence and fail ed to object to i ts admissio n at tri al. Whil e i n cust o d y, Jo nes was sub jec ted to an unli mited search witho ut b ei ng t o l d tha t he had the ri ght to conf er with counsel b efo re all owi ng his cl othes and shoes to b e sei zed. Afte r scie ntif i c testing of Jo nes’s shoes i mpl i cated him i n the murder, the pol i ce confro nted hi m with tha t evidence duri ng a seco nd custod i al i nterro gation and Jo nes made i ncri minating statements.

Id

. at 14

. As a factual matter, however, Mr. Jo nes i s i ncorr ect. The scie ntif i c testing of his shoes was not compl eted until l ong after his statem ents to the pol i ce: He gav e his statem ents on Apri l 11 , 20 02 , and the l ab or atory repo rt i s dated February 27, 20 03

.No. 12-3245 31
Conclus ion For these reasons, t he judgment of the di stric t court denying the pet i tion for habeas reli ef i s affi rmed. AFF IRM ED