In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3245

TYRONE L. JONES,

Petitioner-Appellant,

v.

RICHARD BROWN,

Respondent-Appellee.

Appeal from the United States District Court 

for the Southern District of Indiana, Terre Haute Division.

No. 2:11-cv-205-WTL-WGH — William T. Lawrence, Judge.

ARGUED FEBRUARY 19, 2014 — DECIDED JUNE 24, 2014

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. After a bench trial, Tyrone L. Jones

was convicted of felony murder in an Indiana trial court. His

conviction was affirmed on direct appeal. He then filed a

petition for postconviction relief in state court, alleging

ineffective assistance of trial counsel. Specifically, he contended

that his trial counsel had been ineffective for failing to seek the

suppression of clothing that Mr. Jones had given to the police

after his arrest. Mr. Jones contended that the clothing had been
2 No. 12-3245

obtained in violation of Pirtle v. State, 323 N.E.2d 634 (Ind.

1975), which, at least under some circumstances, requires that

a detainee be advised of his right to counsel prior to consenting

to a search of his property. The state trial court denied

postconviction relief; the Court of Appeals of Indiana affirmed

that judgment, and the Supreme Court of Indiana denied

transfer. 

Having exhausted his state remedies, Mr. Jones sought

federal habeas relief under 28 U.S.C. § 2254. He reiterated the

same claim of ineffectiveness of counsel that he had presented

to the state courts. The district court denied relief. We now

affirm that judgment because trial counsel was not constitutionally ineffective under Strickland v. Washington, 466 U.S. 668

(1984).

I

BACKGROUND

A.

The Court of Appeals of Indiana summarized the facts

underlying Mr. Jones’s conviction as follows:

In February 2002, Sam Alexander lived at the

Lamplighter Apartments in Indianapolis. Alexander was fifty-five years old and weighed

approximately 138 pounds. He walked with a

limp and suffered from emphysema. Alexander

and Jones used drugs together on occasion. In

February 2002, Jones was thirty-three years old

and weighed 230 pounds.
No. 12-3245 3

During the weekend of February 8, 2002, Jones

and Annissa Harris were getting high on crack

cocaine at Alexander’s apartment. At some point,

Alexander asked Jones and Harris to leave, and

Harris left. Harris later saw Jones carrying Alexander’s television, and when she inquired what

Jones was doing with it, he stated that Alexander

had “pawned it to him.” Jones sold the television

to a friend of Robert Crabtree. Crabtree and

Harris both lived across the street from Alexander’s apartment.

Harris went back to Alexander’s apartment

that night, and although she saw someone looking through the peephole of the door, no one

answered. When she returned the next day, the

door was locked and, again, no one answered.

On Sunday, February 17, 2002, after noticing that

Alexander’s apartment lights were on all the

time, Harris returned to Alexander’s apartment

with a friend. When she and her friend

approached Alexander’s door, they both smelled

“a foul odor.” Later that evening when she saw

a police officer, Harris asked the officer to check

on Alexander. At some point that weekend,

Jones called Crabtree and asked him if he had a

valid identification because Jones wanted to

pawn a microwave.

Indianapolis Police Officer Stephen Hart arrived at Alexander’s apartment and noticed a
4 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 firemen arrived, they gained entry into Alexander’s apartment through the

back door. They discovered Alexander’s body on

the floor. His hands had been tied behind his

back, his feet tied at the ankles, and a piece of

cloth had been tied over his mouth as a gag.

Alexander’s body was in an advanced stage of

decomposition.

... .

During a police investigation, Harris identified

Jones as the person who had been in Alexander’s

apartment when she had last seen Alexander

alive.[1]

Indianapolis Police Detective Charles Benner later discovered

that Mr. Jones was wanted on three outstanding warrants. The

police located Mr. Jones, arrested him and brought him to

police headquarters on April 10, 2002.

Jones signed a form dated April 10, 2002, that

contained an“ADVICE OF RIGHTS” and “WAIVER

OF RIGHTS.” Detective Benner interviewed Jones

and noticed that the soles of his shoes appeared to

be the same shoe print that he saw on a pillowcase.

Detective Benner asked if he could take Jones’s

 Jones v. State, No. 49A02-1006-PC-687, 2011 WL 684625, at *1-2 (Ind. Ct. 1

App. Feb. 28, 2011) (quoting Jones v. State, No. 49A02–0305–CR–416, slip op.

at 2-4 (Ind. Ct. App. Feb. 11, 2004)).
No. 12-3245 5

clothing and shoes, and Jones said yes. The police

also interviewed Jones twice on April 11, 2002, and

Jones gave two statements.

In his first statement, Jones admitted that he

had spent the weekend of February 8 at Alexander’s apartment. He denied that he had taken

any of Alexander’s things and claimed he did not

know what had happened to Alexander.

In his second statement, however, Jones stated

Alexander had agreed to give Jones his television

in exchange for drugs. According to Jones, at

some point, Alexander wanted more drugs,

became angry and came at him with a

pocketknife. Jones stated that he pushed Alexander, that Alexander’s head hit the wall, and that

Jones then hit him in the head with his fists a few

times. Alexander was unconscious, and Jones

stated that he gathered his things and left. He

then returned and took the television. He stated

that he returned a third time and decided to bind

Alexander’s hands and feet and gag his mouth.

He stated that he sold the television to a man

who lived across the street from Alexander but

denied taking the microwave.[2]

 Id. at *2 (quoting Jones, No. 49A02-0305-CR-416, slip op. at 4-5) .

2
6 No. 12-3245

B.

A few days after the interview, the State charged Mr. Jones

with murder, felony murder, robbery and criminal confinement. He waived his right to a jury trial and proceeded to a

bench trial. Mr. Jones’s counsel argued that Mr. Jones had

acted in self-defense, that he had not committed the robbery

and that Mr. Jones had bound Alexander because of the further

threatthat Alexander posed. Counsel did notmove to suppress

the admission of Mr. Jones’s clothing items, his admissions

regarding his presence at Alexander’s apartment or a laboratory report tying Mr. Jones’s clothing to the crime scene.

Indeed, Mr. Jones’s counsel and the State stipulated to the

laboratory report’s admissibility because, as Mr. Jones’s trial

counsel explained, there was no issue about Mr. Jones’s

presence in the apartment on the day that Alexander was

killed. 

The trial court found Mr. Jones guilty, merged all the

counts into the felony-murder count and entered a judgment

of conviction for felony murder. It sentenced Mr. Jones to sixtyfive years’ imprisonment.

Mr. Jones appealed his conviction. On direct appeal, he

argued that the State had presented insufficient evidence for

his felony-murder conviction and that the trial court had erred

when it imposed sentence. The court of appeals affirmed the

conviction and sentence. Mr. Jones did not seek transfer to the

Supreme Court of Indiana. 

Mr. Jones then filed a petition for state postconviction relief.

The first petition was withdrawn and replaced with a second,

pro se petition. The state trial court conducted an evidentiary
No. 12-3245 7

hearing on the petition, at which Mr. Jones’s trial attorneys

testified. At the hearing, Mr. Jones inquired whether the

attorneys had considered objecting to the admission of

evidence related to the seizure of his shoes on the basis of Pirtle

v. State, 323 N.E.2d 634 (Ind. 1975). One attorney testified that, 

if they arrested you on a warrant and they took your

clothes in the ordinary course of taking your clothes,

uh, as part of their procedures for that, uh, it’s a

valid arrest under the warrant. And what they take

from you as standard operating procedures incident

to that arrest, uh, I don’t believe that would be

something that would be a problem.[3]

In questioning his other attorney, Mr. Jones asked: “Are

you familiar with the laws with this state pertaining to a search

for a person that’s in police custody, that he must be informed

of his right to consult with counsel before a valid consent can

be given?” The attorney responded: “That’s not the law.” 4 5

When Mr. Jones explicitly referred to Pirtle v. State, the attorney testified that “I think the issues ... whether or not a person

has been advised of that is relevant to that decision, but it’s not

a requirement in our state.” He later said that, to his recollec- 6

 Postconviction Tr. 54. 3

 Id. at 143. 4

 Id.

5

 Id.

6
8 No. 12-3245

tion, he did not object to the shoes because Mr. Jones “w[as]n’t

denying that [he]’d been there at the fellow’s apartment.”7

At the hearing, Mr. Jones also questioned Detective Benner

about his initial encounter with Mr. Jones after he was arrested.

Detective Benner stated that, at that time, he requested

Mr. Jones’s shoes because he had observed that the print on the

bottom of the shoes appeared to match a print that he had seen

in photographs of the crime scene. According to

Detective Benner’s testimony, he asked “if [he] could have the

shoes, and [Mr. Jones] said, yeah, no problem.”8

Mr. Jones also elicited testimony from Detective Benner

about his attempts to obtain a statement from Mr. Jones:

Q: And the day that you recovered my shoes I

didn’t want to make a taped statement, did I?

A: You said you were tired. You asked me to come

back and get you the next day.

Q: On the day, on, on that day during our conversation, didn’t I basically tell you I didn’t know

what happened to Sam, never saw Sam again,

and denied being at the, at the scene?

A: You said that you were at the scene. You said

you weren’t at the scene when he was killed ... .

... .

 Id. at 159. 7

 Id.

8
No. 12-3245 9

Q: Okay. The next day after testing my shoes for

blood didn’t you come back to, to tell me the

things you knew?

A: The tests for your shoes didn’t come back for

quite a bit longer, but, no, I did tell you some of

the things I knew in order to get you to tell me

the truth, yes.[9]

As the hearing was concluding, Mr. Jones offered testimony

on his own behalf. He stated:

[T]he day that I was arrested, two months had

already elapsed between my arrest and

Mr. Alexander’s death. And when I was taken to

downtown headquarters, though I was Mirandized,

I was not informed of my right to confer with

counsel about the possibility of consenting to, you

know, before consenting to a search, you know, and

my shoes being, and clothing being tested, you

know, for blood. I also believed that because my ...

shoes were taken in violation of my right, Fourth

Amendment right, or possible Sixth Amendment

right, that all the evidence learned or gained from

that illegal conduct is tainted and should have been

excluded.[10]

Following the hearing, the state trial court denied relief.

Ruling on Mr. Jones’s claim of ineffective assistance with

 Id. at 236-37. 

9

 Id. at 261-62.

10
10 No. 12-3245

respect to counsel’s failure to move to suppress Mr. Jones’s

items of clothing, the trial court concluded:

37. During his interrogation of Jones, Detective

Charles Benner sought to obtain Jones’ clothing and

shoes for comparison with evidence found at the

crime scene. Jones voluntarily provided his shoes to

the detective. He was not coerced or compelled in

any fashion to surrender his shoes and clothing to

Benner.

... .

39. Jones has not demonstrated that Benner seized

these items in violation of either the U.S. or Indiana

Constitutions.

... .

87. Moreover, as Jones willingly gave the shoes to

the officer, Jones has not demonstrated that his

counsel would have been successful in seeking a

motion to suppress.[11]

Mr. Jones appealed to the Court of Appeals of Indiana and

reiterated his claim that “his trial attorneys were ineffective for

failing to file a motion to suppress evidence and for failing to

object to the admission of this evidence at trial.” He con- 12

tended that “his trial attorneys should have challenged the

R.23-6 (Findings of Fact and Conclusions of Law Denying Post11

Conviction Relief) at 48, 57 (citations omitted).

 Id. (Mr. Jones’s postconviction brief) at 24. 12
No. 12-3245 11

admissibility of evidence based upon the legal doctrines

enunciated in Pirtle and Sims [v. State, 413 N.E.2d 556 (Ind.

1980)].” Mr. Jones pointed out that there was no question that 13

he was in custody at the time Detective Benner requested his

shoes and that he was not advised of his right to consult with

counsel before surrendering his shoes. He also maintained that

the search was “unlimited,” and, therefore, clearly fell within

the rule of Pirtle. Finally, he urged the court to reject the 14

State’s argument that the admission of the shoes was harmless

because he had not contested his presence at the scene of the

crime: “[T]he theory of self-defense resulted from Jones’s

statements to the police. Those incriminating statements were

the poisonous fruits of the illegal, warrantless seizure of Jones’s

clothes and shoes. Challenging the warrantless seizure of the

clothes and shoes would also preclude the admissibility of the

statements.”15

In response, the State first argued that Pirtle did not apply

because, “[w]hen a search is less invasive than an unlimited

search, an officer is not required to advise a suspect of his right

to consult with an attorney before consenting to the search.”16

Additionally, the State maintained that “Jones conceded that

he was at Alexander’s home that evening, and, thus, his

 Id. at 25 (footnote omitted). 13

 Id. at 27. 14

 Id. at 29.

15

 R.23-7 (State’s postconviction appellate brief) at 22. 

16
12 No. 12-3245

defense was not negatively impacted by any evidence related

to his shoes.”17

The Court of Appeals of Indiana affirmed the denial of state

postconviction relief. It held that Mr. Jones was not prejudiced

by his counsel’s failure to object to the laboratory report. It

stated:

Jones appears to argue that his trial counsel was

ineffective for failing to file a motion to suppress or

object to the admission of his shoes and clothes.

Jones argues that his trial attorneys “should have

challenged the admissibility of evidence based upon

the legal doctrines enunciated 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 argues that “the

theory of self-defense resulted from [his] statements

to the police,” and that “[t]hose incriminating

statements were the poisonous fruits of the illegal,

warrantless seizure of Jones’s clothes and shoes.” Id.

at 22.

... .

Jones does not develop a cogent argument that the

mere admission of his shoes or clothing prejudiced

him. As the State points out, Jones admitted to being

present in Alexander’s apartment and striking him.

To the extent that Jones suggests that his statements

to the police claiming self-defense were the poison-

 Id.

17
No. 12-3245 13

ous fruits of the seizure of his clothes and shoes,

Jones does not argue that these statements were

obtained as a direct result of the search of his shoes

and clothing. Further, we note that the Laboratory

Examination Report indicating that the DNA profile

from Jones’s shoe matchedAlexander’s DNA profile

was dated February 27, 2003, well after Jones’s

statements to the police in April 2002. We cannot say

that Jones has demonstrated that he was prejudiced

by the admission of his shoes or clothing. Accordingly, his claim of ineffective assistance on this basis

fails.[18]

The Supreme Court of Indiana denied transfer.

C.

Having exhausted his available state remedies, Mr. Jones

then filed a petition for federal habeas relief. See 28 U.S.C.

§ 2254. He asserted, again, that his trial counsel was ineffec- 19

tive for “fail[ing] to try to suppress inculpatory evidence and

fail[ing] to object to its admission at trial.” The district court 20

concluded that the state appellate court correctly had identified

Strickland v. Washington, 466 U.S. 668 (1984), as articulating the

Jones, 2011 WL 684625, at *9 (footnote omitted) (parallel citations

18

omitted).

The district court had jurisdiction over Mr. Jones’s habeas petition

19

pursuant to 28 U.S.C. § 2254(a).

 R.1 at 4. 20
14 No. 12-3245

governing federal constitutional principle and that it had taken

“the constitutional standard seriously andproducedananswer

within the range of defensible positions.” Consequently, the 21

court denied habeas relief and denied Mr. Jones a certificate of

appealability. 

Mr. Jones filed a notice of appeal and sought a certificate of

appealability from this court. The certificate was granted, and 22

the case was set for argument.

II 

DISCUSSION 

A.

We first set forth the legal principles that must govern our

inquiry. We review the district court’s denial of habeas relief de

novo. Arredondo v. Huibregtse, 542 F.3d 1155, 1167 (7th Cir.

2008). Our review of the underlying state court adjudication,

however, is deferential. Under the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), when a state court adjudicates

a petitioner’s claim on the merits, a federal court may grant

habeas relief only when the state court’s adjudication of the

claim 

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

 R.35 at 3, 5. 

21

We have jurisdiction over Mr. Jones’s appeal pursuant to 28 U.S.C. 22

§§ 1291 and 2253(a).
No. 12-3245 15

established Federal law, as determined by the

Supreme Court of the United States; or (2) resulted

in a decision that was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d).

Here, the Court of Appeals of Indiana correctly concluded

that Mr. Jones’s ineffective assistance of counsel claim is

governed by Strickland v. Washington, 466 U.S. 668 (1984).

Under Strickland, a defendant must show 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.” Id. at 690, 694. 

A court considering a claim of ineffective assistance

must apply a “strong presumption” that counsel’s

representation was within the “wide range” of

reasonable professional assistance. The challenger’s

burden is to show “that counsel made errors so

serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth

Amendment.”

Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (citation omitted)

(quoting Strickland, 466 U.S. at 689, 687). In assessing prejudice

under Strickland, the defendant must demonstrate that, in the

absence of counsel’s misstep, there is a reasonable likelihood

that the result would have been different. See Strickland, 466

U.S. at 694. “This does not require a showing that counsel’s

actions ‘more likely than not altered the outcome’”; neverthe-
16 No. 12-3245

less, “[t]he likelihood of a different result must be substantial,

not just conceivable.” Harrington, 131 S. Ct. at 792 (quoting

Strickland, 466 U.S. at 693). 

Under AEDPA, however, Mr. Jones must not simply satisfy

the Strickland standard; he also must establish that the state

court’s application of Strickland was unreasonable. As the

Supreme Court has noted, this is not an easy task: 

As a condition for obtaining habeas corpus from a

federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in

federal courtwas so lacking in justification that there

was an error well understood and comprehended in

existing law beyond any possibility for fairminded

disagreement.

Id. at 786-87. Similarly, we have observed that the bar for

establishing the unreasonableness of a state court’s application

of Strickland “is a high one, and only a clear error in applying

Strickland will support a writ of habeas corpus.” Allen v.

Chandler, 555 F.3d 596, 600 (7th Cir. 2009). 

B.

With these standards in mind, we turn to Mr. Jones’s

submissions. He maintains that his trial counsel was ineffective

for failing to seek the suppression of his shoes and related

evidence on the basis of Pirtle v. State, 323 N.E.2d 634 (Ind.

1975). In Pirtle, the Supreme Court of Indiana 

recognized the right of those in custody to have the

advice of counsel at the point where a consent to
No. 12-3245 17

search is requested, and expressly and clearly

imposed upon the State the burden in court of

demonstrating an explicit waiver of such right as a

condition to introducing the fruits of such searches.

Sims v. State, 413 N.E.2d 556, 559 (Ind. 1980), overruled on other

grounds by Wright v. State, 658 N.E.2d 563, 570 (Ind. 1995).

Mr. Jones submits that, had his counsel objected to this

evidence, then his clothing, his statements to the police and the

laboratory report all would have been suppressed. Furthermore, in his view, had “the clothing, shoes, and derivative

evidence” been suppressed, “there is a reasonable probability

that the fact finder would have had a reasonable doubt about

guilt.”23

In reply, the State first argues that Pirtle applies only to

requests for unlimited searches of a dwelling or automobile,

not to a specific request for items of clothing. It invites our

attention to a number of casesdecided subsequent to Pirtlethat

appear to have narrowed considerably Pirtle’s application. It 24

 Appellant’s Br. 27.

23

See, e.g., Garcia-Torres v. State, 949 N.E.2d 1229, 1238-39 (Ind. 2011)

24

(noting that “Pirtle and the ensuing cases have applied this rule only to the

weightiest intrusions,” observing that it “has suppressed evidence based on

Pirtle when the police searched either a home or a vehicle” and refusing to

apply the rule of Pirtle to requests for cheek swabs); Datzek v. State, 838

N.E.2d 1149, 1160 (Ind. Ct. App. 2005) (holding that Pirtle is not applicable

to chemical blood tests); Schmidt v. State, 816 N.E.2d 925, 944 (Ind. Ct. App.

2004) (holding that Pirtle is not applicable to chemical breath tests);

Ackerman v. State, 774 N.E.2d 970, 981-82 (Ind. Ct. App. 2002) (identifying

(continued...)
18 No. 12-3245

also notes that, even if there had been a misstep by counsel, the

state appellate court reasonably concluded that Mr. Jones was

not prejudiced by counsel’s failure to move to suppress the

shoes because he “admitted to being present in Alexander’s

apartment.” Jones v. State, No. 49A02–1006–PC–687, 2011 WL

684625, at *9 (Ind. Ct. App. Feb. 28, 2011). Similarly, the State

submits, the Court of Appeals of Indiana reasonably concluded

that, “[t]o the extent that Jones suggests that his statements to

the police claiming self-defense were the poisonous fruits of

the seizure of his clothes and shoes, Jones does not argue that

these statements were obtained as a direct result of the search

of his shoes and clothing.” Id.

Finally, the State asserts that, even without the clothing,

laboratory report and statements, there was sufficient evidence

to support Mr. Jones’s conviction, including Detective Benner’s

testimony that the shoes Mr. Jones was wearing matched those

at the scene, the discovery of Mr. Jones’s blood inside Alexander’s apartment, and the possession by Mr. Jones of Alexander’s television and microwave.

1.

We begin by considering whether Mr. Jones’s trial counsel’s

performance fell “outside the wide range of professionally

 (...continued) 24

“the purpose of the Pirtle doctrine” as “ensur[ing] that no person in custody

consents to an unlimited search unless she is fully informed of the constitutional rights she is waiving” and refusing to apply the rule with respect to

requests for field sobriety tests (emphasis added)).
No. 12-3245 19

competent assistance.” Strickland, 466 U.S. at 690. Because the

Court of Appeals of Indiana did not reach this issue, there is no

state-court determination to which we must defer under

AEDPA, and we therefore consider the question of counsel’s

performance de novo. Sussman v. Jenkins, 636 F.3d 329, 350 (7th

Cir. 2011) (stating that if the state court does not reach the

merits of one prong of the Strickland analysis, then federal

review of that prong “is not circumscribed by a state court

conclusion, and our review is de novo” (internal quotation

marks omitted)).

“There is no federal constitutional right to counsel before

consenting to a search even if the suspect is in custody.

However, Pirtle v. State, 323 N.E.2d 634 (1975), established that

Article I, section 11 of the Indiana Constitution requires that a

person in custody explicitly waive the right to counsel before

giving a valid consent to a search.” Clarke v. State, 868 N.E.2d

1114, 1119 (Ind. 2007) (citation and parallel citation omitted).

“[T]he purpose of the Pirtle doctrine is to ensure that no person

in custody consents to an unlimited search unless she is fully

informed of the constitutional rights she is waiving.” Ackerman

v. State, 774 N.E.2d 970, 981 (Ind. Ct. App. 2002) (emphasis

added). Later cases have made it clear that Pirtle applies “only

to the weightiest intrusions”; when police have asked to

conduct “minimally intrusive” searches, Indiana courts have

held that Pirtle does not apply. Garcia-Torres v. State, 949 N.E.2d

1229, 1238 (Ind. 2011). Thus, the Supreme Court of Indiana has

suppressed evidence based on Pirtle when the police have

searched a home or a vehicle, but has refused “to extend that

rule” to police requests for cheek swabs for the purposes of

DNA testing. See id. at 1238-39 (citing Pirtle, 323 N.E.2d 634
20 No. 12-3245

(home search), and Sellmer v. State, 842 N.E.2d 358 (Ind. 2006)

(vehicle search)). Similarly, the state courts of appeals have not

applied Pirtleto custodial requests for chemical blood tests, see

Datzek v. State, 838 N.E.2d 1149, 1158–60 (Ind. Ct. App. 2005);

to chemical breath tests, see Schmidt v. State, 816 N.E.2d 925,

942–44 (Ind. Ct. App. 2004); orto field sobriety tests, Ackerman,

774 N.E.2d at 979–82. The courts have explained that these

types of searches are “qualitatively different from the general,

unlimited searches that concerned the Pirtle court”; they do not

allow police to troll for evidence of any type of criminal

activity, but are limited in scope and “take little time to

administer.” Datzek, 838 N.E.2d at 1159-60 (internal quotation

marks omitted).

Here, Detective Benner’s request for Mr. Jones’s shoes fits

comfortably within the category of searches to which Pirtle

does not apply. It was limited in scope and was minimally

intrusive—certainly less so than a blood sample or even a

cheek swab. Mr. Jones has not come forward with any examples of Indiana cases that have required Pirtle warnings in

circumstances similar to his, nor is there any indication that

Indiana courts are inclined to extend the rule of Pirtle to apply

in such circumstances. 

We have explained that a claim of ineffective assistance

based on counsel’s failure to object is “tied to the admissibility

of the underlying evidence.” Hough v. Anderson, 272 F.3d 878,

898 (7th Cir. 2001). If evidence admitted without objection is,

in fact, admissible, then “failing to object to [that] evidence

cannot be a professionally ‘unreasonable’ action.” Id. The same

rationale applies to counsel’s failure to move to suppress; if the
No. 12-3245 21

evidence would not have been suppressed, then the failure to

move for suppression of that evidence is not professionally

unreasonable. In the present case, had Mr. Jones’s counsel

moved to suppress the shoes, or any evidence that resulted

from the testing of the shoes, on the basis of Pirtle, we believe

that the state court would have denied that motion. Consequently, trial counsel’s failure to press an unavailing argument

based on Pirtle was not “outside the wide range of professionally competent assistance” that Strickland allows, Blake v. United

States, 723 F.3d 870, 879 (7th Cir. 2013), and trial counsel was

not constitutionally ineffective.

2.

The determinative issue for the Court of Appeals of

Indiana, however, was not counsel’s performance, but, instead,

the resulting prejudice. The state appellate court held: 

Jones does not develop a cogent argument that the

mere admission of his shoes or clothing prejudiced

him. As the State points out, Jones admitted to being

present in Alexander’s apartment and striking him.

To the extent that Jones suggests that his statements

to the police claiming self-defense were the poisonous fruits of the seizure of his clothes and shoes,

Jones does not argue that these statements were

obtained as a direct result of the search of his shoes

and clothing. Further, we note that the Laboratory

Examination Report indicating that the DNA profile

from Jones’s shoe matched Alexander’s DNA profile

was dated February 27, 2003, well after Jones’s
22 No. 12-3245

statements to the police in April 2002. We cannot say

that Jones has demonstrated that he was prejudiced

by the admission of his shoes or clothing. Accordingly, his claim of ineffective assistance on this basis

fails.

Jones, 2011 WL 684625, at *9. Because the Court of Appeals of 25

Indiana resolved the prejudice prong against Mr. Jones on the

merits, we apply AEDPA deference to this determination. See

Toliver v. McCaughtry, 539 F.3d 766, 774-76 (7th Cir. 2008)

(applying AEDPA standard to prejudice prong of Strickland

analysis where state court reached that issue on the merits).

 Earlier in its discussion, the court noted: 25

Jones appears to focus his arguments on the admission of

his clothes and shoes. Jones also states that “all of the

inculpatory evidence was admissible” and that “the

statements were inadmissible.” Appellant’s Brief at 22. To

the extent that Jones challenges evidence other than his shoes and

clothes, we conclude that Jones fails to put forth a cogent

argument. Consequently, this issue is waived.

Jones, 2011 WL 684625, at *9 n.6 (emphasis added). Mr. Jones’s statements

to Detective Benner fall into the category of inculpatory evidence “other

than his shoes and clothes.” The appellate court’s opinion, therefore, could

be viewed as a determination that Mr. Jones had waived any argument

concerning his statements for failing to develop adequately that argument.

Because the court, in the body of its opinion, directly addresses Mr. Jones’s

statements to the police, we believe that the state court’s decision is best

read as determining that Mr. Jones did not meet his substantive burden of

establishing a connection between the allegedly illegal seizure and the later

statements.
No. 12-3245 23

We cannot say that this conclusion by the state court of

appeals is in any way unreasonable. First, the court correctly

discerned that Mr. Jones had the burden of establishing that

the uncounseled seizure of his clothing resulted in the prejudicial admission of evidence against him. In Pirtle, 323 N.E.2d at

642, the Supreme Court of Indiana set forth the allocation of

burdens of proof with respect to the fruit of the poisonous tree

doctrine. It held that the defendant has the initial burden of

proving that an illegal search took place and that the evidence

at issue was a “fruit” of that search. Id. At that point, the 26

burden shifts to the State to establish that the evidence falls

within some exception to the exclusionary rule. Id.; see also

Herald v. State, 511 N.E.2d 5, 8 (Ind. Ct. App. 1987). Here,

As noted previously, it is clear that the application of Pirtleis a question

26

of state law. See Clarke v. State, 868 N.E.2d 1114, 1119 (Ind. 2007) (explaining

that Pirtle does not have its roots in the federal Constitution but in Article

I, section 11 of the Indiana Constitution). Nevertheless, we note that the

approach of Indiana courts with respect to establishing a nexus parallels

that taken by the federal courts. See Gardner v. United States, 680 F.3d 1006,

1011 (7th Cir. 2012) (“A defendant seeking to have evidence suppressed as

the fruit of an illegal search need only establish a factual nexus between the

illegalityand the challengedevidence.” (internal quotation marksomitted));

United States v. Ienco, 182 F.3d 517, 528 (7th Cir. 1999) (citing United States

v. Kandik, 633 F.2d 1334, 1335 (9th Cir. 1980), for the proposition that the

“defendant has the initial burden of establishing a factual nexus between

the illegality and the challenged evidence”); see also United States v.

Riesselman, 646 F.3d 1072, 1079 (8th Cir. 2011) (“In order to determine

whether challenged evidence is the fruit of an illegal search or seizure, the

defendant bears the initial burden of establishing the factual nexus between

the constitutional violation and the challenged evidence.” (internal

quotation marks omitted)); United States v. Nava-Ramirez, 210 F.3d 1128,

1131 (10th Cir. 2000) (same). 
24 No. 12-3245

therefore, the burden was on Mr. Jones to prove that the

seizure of his shoes was unlawful and “that the challenged

evidence”—here his statements—“was available to the State as

a factual result of the police officers’ illegal activity.” Herald,

511 N.E.2d at 8. In his brief to the Court of Appeals of Indiana,

however, Mr. Jones made no attempt to meet his burden by

establishing this connection. His argument that his statements

were fruits of the illegal search consisted of the following

conclusory statement: 

[T]he theory of self-defense resulted from Jones’s

statements to the police. Those incriminating statements were the poisonous fruits of the illegal,

warrantless seizure of Jones’s clothes and shoes.

Challenging the warrantless seizure of the clothes

and shoes would also preclude the admissibility of

the statements. Wong Sun v. United States, 371 U.S.

471, 487, 488 (1963); see also, Jackson v. State, 669

N.E.2d 744 (Ind. Ct. App. 1996).[27]

In the absence of further argument by Mr. Jones, the Court of

Appeals of Indiana was justified in concluding that Mr. Jones

had not met his burden of establishing a connection between

the seizure of his clothes and his statements. 

3.

Nevertheless, Mr. Jones maintains that, despite this facially

apparent reasonableness, the Court of Appeals of Indiana’s

 R.23-6 (Mr. Jones’s postconviction appellate brief) at 29.

27
No. 12-3245 25

decision actually was “patently unreasonable” because, in the

earlier postconviction hearing in the state trial court, the judge

had “denied him the opportunity to develop evidence that the

statements were indeed obtained as a direct result of the search

of his clothes and shoes during Jones’s post-conviction examination of Benner.” Specifically, Mr. Jones points to the 28

following excerpt from Detective Benner’s testimony at the

state postconviction hearing before the trial court:

Q. Okay. The next day after testing my shoes for

blood didn’t you come back to, to tell me the

things you knew?

A. The tests for your shoes didn’t come back for

quite a bit longer, but, no, I did tell you some of

the things I knew in order to get you to tell me

the truth, yes.

Q. But in your—I’m, I’m making reference to

Mr. Benner’s—

MR. CAMPBELL: Your Honor, I object to this

whole line of questioning. It is irrelevant to a postconviction relief proceeding.

THE COURT: Response? What are you trying to

prove?

MR. JONES: That my, my rights were violated.

Not only was my, my, my shoes taken without

consent under the Fourth Amendment,—

 Appellant’s Br. 24. 

28
26 No. 12-3245

THE COURT: Well, that, that’s your argument.

He said, he says you have consent.

MR. JONES: Right.

THE COURT: And what are you trying to show?

MR. JONES: To show that all the evidence after

the initial misconduct by the police is tainted.

THE COURT: Well, the Court will assume that,

because the law says that if there was a violation of

your rights, at that point any evidence derived

from that would be inadmissible. You don’t have

to establish what other evidence he had after that.

MR. JONES: Okay.

[29]

In light of the trial judge’s statements, Mr. Jones argues that it

was unreasonable for the state appellate court “to determine

that [he] failed to make a cogent argument when, in fact, he

had made (and won) the argument below.”30

We believe that a close examination of the entire record

requires the conclusion that there is no merit to this argument. 

First, as a preliminary matter, it is incorrect to say that

Mr. Jones “made (and won) [his] argument” before the Indiana

trial court. True enough, the transcript shows that the State 31

objected to Mr. Jones’s line of questioning and that the trial

 Postconviction Tr. 237-38. 29

 Appellant’s Br. 25.

30

 Id.

31
No. 12-3245 27

court implicitly sustained that objection on the ground that the

court would assume that any evidence derived from a violation of Mr. Jones’s rights was inadmissible. It is also true that

the trial court’s ruling was problematic. Although “[g]enerally

speaking, evidence obtained pursuant to an unlawful seizure

must be excluded under the fruit of the poisonous tree doctrine,” the burden is initially on the defendant to show “that

the evidence was a ‘fruit’ of that search,” that is, that the

evidence was derived from the constitutional violation. Clark

v. State, 994 N.E.2d 252, 266 (Ind. 2013). Therefore, the burden

was on Mr. Jones to establish that the evidence he sought to

suppress, namely his incriminating statements to the police,

was “derivatively gained as a result of information learned or

leads obtained” from the seizure of the clothing. Id. The state

trial court, therefore, should not have pretermitted

Detective Benner’s testimony, which had the potential to tie the

allegedly illegal seizure of the clothing and shoes to Mr. Jones’s

statements the following day. 

At the trial court level, however, this misstep did not play

a part in the court’s decision. In denying postconviction relief,

the state trial court did not reach the question of whether there

was a relationship between the seizure of the shoes and

Mr. Jones’s statements because it concluded that Mr. Jones

voluntarily had surrendered the clothing. Therefore, contrary 32

to his assertion, Mr. Jones did not prevail on his claim before

the trial court: He did not persuade the trial court that the

seizure of his shoes was illegal and that the seizure tainted the

trial process. The trial court disagreed with Mr. Jones with

 See supra at 10.

32
28 No. 12-3245

respect to the illegality and, consequently, did not reach the

question of nexus.

When Mr. Jones appealed, he had to convince the Court of

Appeals of Indiana that he was entitled to relief. Specifically,

he had to establish that the seizure of his shoes was in violation

of Pirtle and that his subsequent inculpatory statements were

the result of Detective Benner’s failure to observe the strictures

of Pirtle. Therefore, in making his arguments to the appellate

court, it was incumbent upon Mr. Jones to address both the

trial court’s ruling on the scope of Pirtle as well the trial court’s

error that impeded him from developing a record that he was

prejudiced by the Pirtle violation. 

Mr. Jones failed with respect to this second burden. He did

not attempt to explainhow his statements—made the day after

he had surrendered his clothing to Detective Benner, after

additional Miranda warnings had been given, and long before

the laboratory tests on his shoes were completed—were

“fruits” of the “poisonous” seizure of his shoes. Notably, he

never invited the appellate court’s attention to the specific

error by the trial court that, in his view, prevented him from

establishing this point. Instead, he merely asserted, without 33

 Before this court, Mr. Jones has invited our attention to that portion of

33

the state postconviction proceedings in which he attempted to establish the

connection between the Pirtle violation and his inculpatory statements

through the testimony of Detective Benner. See supra at 25-26. We note,

however, that Mr. Jones also testified during the postconviction proceedings. See supra at 9. In that testimony, Mr. Jones stated that he “believed that

because my ... shoes were taken in violation of my right, Fourth Amendment right, or possible Sixth Amendment right, that allthe evidence learned

(continued...)
No. 12-3245 29

argument or elaboration, that the statements were inadmissible

as fruits of the poisonous tree: “Those incriminating statements

were the poisonous fruits of the illegal, warrantless seizure of

Jones’s clothes and shoes. Challenging the warrantless seizure

of the clothes and shoes would also preclude the admissibility

of the statements.” In light of this omission, we cannot fault

34

 (...continued) 33

or gained from that illegal conduct is tainted and should have been

excluded.” Postconviction Tr. 262. Mr. Jones, however, did not offer any

additional testimony explaining how the two were related, i.e., why

Detective Benner’s seizure of his shoes prompted him to make inculpatory

statements. Thus, even if Mr. Jones had argued to the state appellate court

that the trial court erred in curtailing his examination of Detective Benner,

it is not clear that the trial court’s action prevented him from establishing

a connection between the allegedly illegal seizure and his later statements.

 R.23-6 (Mr. Jones’s postconviction appellate brief) at 29. There are two 34

other references to the fruit of the poisonous tree doctrine in Mr. Jones’s

brief to the Court of Appeals of Indiana. Neither helps to establish the

connection between the seizure of Mr. Jones’s shoes and his subsequent

statements to police. First, in the facts section of his brief, Mr. Jones states

that, the day following his arrest, “Detective Benner returned to question

Jones again. Jones was confronted with evidence obtained from the shoes,

to wit; matched shoeprints and invisible traces of blood, which Jones was

compelled to explain (R.162-165). Jones thenmade incriminating statements

and was arrested and charged for Alexander’s murder.” Id. at 12. Mr. Jones-

’s citation to the relevant portions ofthe postconviction transcript, however,

references testimony by one of his attorneys, and that testimony concerns

the reasons why he did not object to the shoes and laboratory report. That

testimony does not establish, indeed even mention, what may have

prompted Mr. Jones to give statements to the police on April 11, 2002.

The second mention of the connection between the shoes and the

statement is set forth in Mr. Jones’s “Summary of the Argument,” in which

(continued...)
30 No. 12-3245

the Court of Appeals of Indiana for determining that the

cursory argument presented to it failed to meet Mr. Jones’s

burden.

By determining that Mr. Jones had not established that the

admission of inculpatory evidence was the result of any Pirtle

error, the Court of Appeals of Indiana reasonably concluded

that the second, so-called prejudice prong of Strickland had not

been satisfied. Consequently, on habeas review, we cannot

conclude that Mr. Jones was prejudiced by any failure of his

trial counsel. 

Accordingly, the district court correctly determined that

Mr. Jones has not met his burden of establishing his statutory

eligibility for federal habeas relief.

 (...continued) 34

he states:

Trial counsel[] failed to try to suppress inculpatory

evidence and failed to object to its admission at trial. While

in custody, Jones was subjected to an unlimited search

without being told that he had the right to confer with

counsel before allowing his clothes and shoes to be seized.

After scientific testing of Jones’s shoes implicated him in

the murder, the police confronted him with that evidence

during a second custodial interrogation and Jones made

incriminating statements.

Id. at 14. As a factual matter, however, Mr. Jones is incorrect. The scientific

testing of his shoes was not completed until long after his statements to the

police: He gave his statements on April 11, 2002, and the laboratory report

is dated February 27, 2003.
No. 12-3245 31

Conclusion

For these reasons, the judgment of the district court

denying the petition for habeas relief is affirmed.

AFFIRMED