In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2354

PATRICIA OUSKA,

Petitioner-Appellant,

v.

LYNN CAHILL-MASCHING,/1

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 C 3363--William T. Hart, Judge.

Argued September 26, 2000--Decided April 12, 2001

 Before COFFEY, RIPPLE and ROVNER, Circuit Judges.

 RIPPLE, Circuit Judge. Patricia Ouska was

charged with the armed robbery and murder of

Beeland Te on May 7, 1992, and was tried before

an Illinois jury. Ms. Ouska was found guilty of

those charges and was sentenced to life

imprisonment without parole by the trial court.

The Appellate Court of Illinois affirmed Ms.

Ouska’s conviction, and the Illinois Supreme

Court denied her leave to appeal. Ms. Ouska then

filed a petition for a writ of habeas corpus in

the district court; she asserted that, during her

trial, the prosecution (1) used her pre-arrest

silence as substantive evidence of her guilt in

violation of the Fifth Amendment and (2) used her

post-arrest silence against her in violation of

the Due Process Clause of the Fourteenth

Amendment. She also claimed that her trial

counsel’s failure to object to these violations

deprived her of the effective assistance of

counsel guaranteed by the Sixth Amendment. The

district court denied Ms. Ouska’s petition in its

entirety. For the reasons set forth in the

following opinion, we affirm the judgment of the

district court.

I

BACKGROUND

A. Facts

 On May 7, 1992, between 9:00 and 10:00 a.m.,

Beeland "Rosa" Te was stabbed to death in the
convenience store that she ran on West 18th

Street in Chicago. Te sold a number of different

items in the store, including toys, candy and

lottery tickets. In order to help her customers

more easily fill out their lottery slips, Te kept

a number of small pencils available in the store

for that purpose. She also kept a medal of Saint

Benedict in her cash register, a gift from her

sister that had been purchased in the

Philippines. Te had experienced health problems

in the past, and, due to a double mastectomy, she

wore silicone gel implants in her prosthesis.

 Ms. Ouska and her twenty-two-month-old child

lived with Ms. Ouska’s former foster mother, Ruby

Fontenot, only a two or three minute walk from

Te’s store. Fontenot, who knew Te and often

stopped in her store, testified that she

discovered that Ms. Ouska had borrowed money from

Te and had not yet repaid that loan. Fontenot

prodded Ms. Ouska to find the money to repay this

debt, and on the morning of the murder Ms. Ouska

left Fontenot’s home between 9:15 and 9:20 a.m.

with her daughter in order to obtain those funds.

 At some point before 10:00 a.m. that morning,

Ms. Ouska rang the doorbell of Erma Gonzalez, who

lives approximately two blocks away from the

Fontenot home. Ms. Ouska was bleeding from her

leg and told Gonzalez that a Mexican man had

tried to rob her on the street and had stabbed

her with a screwdriver. Gonzalez refused Ms.

Ouska’s request to allow her to clean her wound

in Gonzalez’s apartment, and so Ms. Ouska

returned to the Fontenot home. When she arrived

there, she encountered Patricia Rutledge, a

babysitter working for Fontenot that morning.

Rutledge noticed that Ms. Ouska kept her right

hand in her pocket and that her leg was cut.

While Ms. Ouska went to her room, Rutledge dialed

911, and paramedics soon arrived to take Ms.

Ouska to the hospital.

 At about the same time that morning, Te’s body

was discovered at her store; she had been stabbed

forty-two times and had eight superficial cutting

wounds. The cash register was open and contained

no money. Additionally, there were no signs of

forced entry to the door separating the customer

area of the store from the store’s rear portion,

where Te’s body was found./2 Te normally kept

that door closed and locked. In that rear portion

of the store was a bathroom, where investigators

found a bloody rag in the sink.

 Later that afternoon, Fontenot and her daughter

Vickie found two blood-stained one-dollar bills

on Ms. Ouska’s dresser, along with a printout of

winning lottery numbers from a previous date. The

next morning, on May 8, 1992, while Ms. Ouska was
still at Illinois Masonic Medical Center

recovering from her stab wound, Rutledge was

again babysitting Fontenot’s grandchildren and

Ms. Ouska’s daughter at the Fontenot home.

Suspicious about the events of the previous day,

Rutledge entered Ms. Ouska’s room and looked

under her mattress, where she found a bloody

knife. Fontenot later testified that she

recognized that knife as one that Ms. Ouska had

shown her while the two were in Ms. Ouska’s room

only a few weeks before. 

 During that same morning, Ms. Ouska made

repeated phone calls from the hospital to a

neighbor, Lenoir Sanchez. Ms. Ouska ultimately

asked Sanchez to get something for her from under

Ms. Ouska’s mattress in the Fontenot home, which

was located next door to Sanchez’s apartment.

Sanchez testified that Ms. Ouska was not specific

as to the nature of the item that Sanchez was

supposed to retrieve from under the mattress.

Both Sanchez and Tommy Gonzalez, Sanchez’s

boyfriend and the brother of Ms. Ouska’s

boyfriend, each made separate attempts to

retrieve this unknown item from the Fontenot home

that morning. Each time, Rutledge, who had

already found the knife under Ms. Ouska’s

mattress, would not allow them entry into the

Fontenot home. Soon after, the knife was placed

in a plastic bag, and the police were called to

the scene.

 When the police arrived and learned that the

knife had been found in Ms. Ouska’s room,

Detective Michael Shields was dispatched to speak

with her regarding the Te murder (Detective

Shields and a partner had spoken with Ms. Ouska

at the hospital on the previous morning about the

details of Ms. Ouska’s stabbing). When Detective

Shields arrived at the Illinois Masonic Medical

Center, Ms. Ouska was about to be released, and

she agreed to accompany the detective to the

police station. Ms. Ouska was told that she was

to look at possible mug shots of her assailant;

instead, once at the station, Detective Shields

began asking questions relating to Te’s murder.

At this point, Ms. Ouska immediately stated that

she did not wish to speak to the detective any

further, indicated that she wished to speak with

her attorney and later left the police station.

At no time during this questioning was Ms. Ouska

placed under arrest, nor was she given Miranda

warnings. Additionally, Ms. Ouska had a bag of

clothing with her as she left the hospital that

she brought with her to the police station. Upon

leaving the station, she did not take this bag

with her. Detective Shields, who had noticed

blood on some of the clothing in the bag,

inventoried the bag and its contents and sent it

to a crime laboratory./3 Inside that bag, the
police later found a blood-stained jacket and in

its pockets found $87 in one- and five-dollar

bills, a St. Benedict medal and a small green

pencil. 

 Analysis later revealed that the blood on the

knife was consistent with Te’s blood and that the

knife contained silicon and fibers matching that

of Te’s prosthesis and clothing, respectively.

Testing of the blood found on the two one-dollar

bills that Fontenot and her daughter discovered

on Ms. Ouska’s dresser showed that it was

consistent with the protein and enzyme

classifications of Te’s blood. Additionally,

tests on the blood from Ms. Ouska’s jacket and

from the money located in the jacket were

consistent with the protein and enzyme

classifications of Te’s blood. Blood that had

been found in the front room of Te’s store was

determined to be consistent with Ms. Ouska’s

blood type, and blood consistent with Ms. Ouska’s

blood enzyme and protein type was found on the

rag recovered from the bathroom sink in the rear

of the store. A warrant was then issued for Ms.

Ouska’s arrest. Six days later, on May 28, 1992,

she appeared at a police station and was

arrested.

B. Earlier Proceedings

1.

 During her jury trial, Ms. Ouska testified that

she had entered Te’s store on the morning of the

murder and saw Fontenot’s son-in-law, Salvador

Martinez, repeatedly stabbing the victim. Ms.

Ouska had, to this point, never told this story

to the police or any judicial officer. She

maintained that when she told Martinez to stop,

he knocked her to the ground, stabbed her in the

leg with the knife and threatened that if she

told anyone about his crime, he would hurt Ms.

Ouska and her child. Ms. Ouska also testified

that the knife belonged to Martinez and not to

her. After Martinez ran from the store, Ms. Ouska

claimed that she quickly pulled the knife out of

her leg and put it in the pocket of a sweatshirt

that she was wearing. She also maintained that

she never entered the rear portion of the store,

the area where Te was killed.

 Ms. Ouska also provided her version of a number

of key points in the sequence of events after the

murder. She testified that when she had arrived

at Erma Gonzalez’s house just after the stabbing,

she told Gonzalez that she had been stabbed with

a screwdriver because, until she returned to her

home, she was unsure of the nature of the object

that she had been stabbed with and believed that

it could have been a screwdriver. She also

explained that she had stated falsely that a
Hispanic man had stabbed her on the street

because she was afraid that, if she told the

truth, Martinez would endanger her and her child.

Lastly, Ms. Ouska maintained that when she called

Lenoir Sanchez’s apartment on the morning after

the murder, she asked Sanchez to retrieve health

insurance information from under her mattress,

not the knife involved in the murder. 

 Prior to Ms. Ouska’s testimony, the prosecution

called Detective Shields to the stand in its

case-in-chief. It elicited from him the fact that

Ms. Ouska had remained silent when the detective

had asked her questions regarding the murder at

the police station. He characterized Ms. Ouska’s

behavior at that time as "uncooperative." R.7-8

at 16C. 

 Later, on cross-examination of Ms. Ouska, the

prosecution again engaged in the following line

of questioning regarding Ms. Ouska’s pre-arrest,

pre-Miranda silence:

 [State] And you didn’t tell Det. Shields on the

[ ]8th at Illinois Masonic Medical Center that

Salvador Martinez committed the crime? 

A: [Ms. Ouska] No. 

Q: You didn’t ask for witness protection because

you had just seen this woman brutally murdered? 

A: No. 

Q: When you went to the police station . . . at

Area 4 Violent Crimes . . . [y]ou didn’t tell

Det. Shields or Pavon at that time that Salvador

Martinez had committed the crime? 

A: No. 

R.7-3 at D-233-234. Additionally, the prosecution

also referenced Ms. Ouska’s actions after her

arrest:

Q: [State] You went to bond court; right? 

A: [Ms. Ouska] Correct. 

Q: And you appeared before a judge? 

A: Correct. 

Q: Did you tell the judge at that time that you

were innocent and Salvador Martinez had committed

the murder? 

A: No, I did not.

Q: Did you tell the Assistant State’s Attorney who
was there that you were innocent and Salvador

Martinez committed murder? 

A: No, I did not.

* * *

Q: So then you come into Judge Reyna’s courtroom;

right?

A: Yes. 

Q: And the case has been pending within this

courtroom for approximately two-and-a-half years?

A: Correct.

* * *

Q: As a matter of fact you decided you would wait

until your day of trial? 

A: No. I did tell a couple of people. 

Q: Well I am just telling you you decided you

would wait until your day of trial and reveal in

a public courtroom where Salvador Martinez could

walk right in here, you decide you would wait

until then and tell the ladies and gentlemen of

the jury that you were innocent and Salvador

Martinez committed murder? 

A: Yes.

Id. at D-235-237. Later, in closing argument, the

prosecution again made reference to Ms. Ouska’s

silence regarding her claim that it was Martinez

who had murdered Te./4 Ms. Ouska’s trial counsel

did not object to any of this questioning by the

prosecution, with the exception of the remarks in

closing argument; even there, counsel only

objected on the ground that the assertion was not

supported by the evidence. That objection was

overruled by the trial court. Ultimately, Ms.

Ouska was found guilty of first-degree murder and

armed robbery and sentenced to life imprisonment.

2.

 In its review of Ms. Ouska’s conviction, the

Appellate Court of Illinois first determined that

the prosecution’s comments during crossexamination regarding Ms. Ouska’s pre-arrest

silence did not run afoul of the Constitution. It

explained only that it found "no error" because

those comments addressed events occurring before

Ms. Ouska was in custody and during a time when

she understood that her participation was

voluntary. R.1, Ex.A at 8. The court did not

mention the prosecution’s reference to Ms.
Ouska’s pre-arrest silence during its case-inchief as part of its questioning of Detective

Shields. 

 The court next addressed the prosecution’s

references to Ms. Ouska’s post-arrest silence

during cross-examination and in closing argument.

The court noted that Ms. Ouska did not object to

these comments during trial and that this

"generally constitutes a waiver of any

improprieties." Id. at 9. The court then examined

the issue for plain error and ruled that the use

of the post-arrest silence did not adversely

affect Ms. Ouska’s right to a fair trial because

a substantial amount of evidence existed to

connect her to the commission of the crime. 

 The court also ruled that Ms. Ouska could not

make out a claim of ineffective assistance of

counsel on the ground that her trial counsel

failed to object to the improper use of her

silence. It held that Ms. Ouska could not show

that, under the second part of the test

articulated in Strickland v. Washington, 466 U.S.

668 (1984), but for her counsel’s failure there

was a reasonable probability that the result of

the trial would have been different.

 After finding no other defects with Ms. Ouska’s

trial, the Appellate Court affirmed her

convictions and her sentence. The Illinois

Supreme Court later denied leave to appeal that

decision.

3.

 Ms. Ouska then filed a petition for a writ of

habeas corpus in the district court under 28

U.S.C. sec. 2254. The district court first

addressed the use of Ms. Ouska’s pre-arrest

silence. It noted that a defendant’s Fifth

Amendment rights are not violated by the use of

pre-arrest silence to impeach a defendant’s

credibility, and that, because Ms. Ouska

ultimately took the stand and testified in her

own behalf, the prosecution had used her prearrest silence to impeach her credibility and not

to establish her guilt./5

 The district court, however, also found that the

prosecution had made reference to Ms. Ouska’s

post-arrest silence in violation of her due

process rights. See Doyle v. Ohio, 426 U.S. 610

(1976). Nevertheless, it noted that, even if that

issue had been preserved for appeal, any error

was harmless under the standard of review

applicable to habeas corpus petitions set forth

in Brecht v. Abrahamson, 507 U.S. 619 (1992). In

light of the large amount of evidence suggesting

that Ms. Ouska had committed the crimes in
question, and her shifting stories regarding her

version of events, the use of her post-arrest

silence did not have a substantial and injurious

effect or influence on the jury’s verdict. 

 Lastly, the district court found meritless Ms.

Ouska’s claim that her trial counsel’s failure to

object to the use of her silence constituted

ineffective assistance of counsel under the Sixth

Amendment. Like the Illinois Appellate Court, the

district court held that Ms. Ouska could not meet

the second prong of the Strickland test; she

could not demonstrate that the outcome of her

trial would have been different if trial counsel

had objected to the references to her silence.

 As a result, the district court denied Ms.

Ouska’s petition for a writ of habeas corpus. Ms.

Ouska then applied to the district court for a

certificate of appealability, but the court

declined to grant one. Subsequently, a judge of

this court granted a certificate limited to two

issues: (1) whether the prosecution’s use of Ms.

Ouska’s post-arrest silence violated her due

process rights and (2) whether her trial counsel

rendered constitutionally ineffective assistance

of counsel by failing to object to the

prosecution’s use of her post-arrest silence.

II

DISCUSSION

 Ms. Ouska now seeks review of the three claimed

errors that she presented to the district court.

First, she asks that we amend her certificate of

appealability and review the district court’s

holding that the prosecution did not infringe on

her Fifth Amendment privilege against selfincrimination by commenting on her pre-arrest,

pre-Miranda silence. Ms. Ouska claims that the

reference to her pre-arrest silence in the

prosecution’s case-in-chief, during the testimony

of Detective Shields in advance of her own

testimony, was an unconstitutional attempt to

draw an inference of guilt. Next, she maintains

that the use of her post-arrest silence was not

only constitutional error, but that the error

significantly prejudiced her case and therefore

cannot be considered harmless. Lastly, Ms. Ouska

contends that her trial attorney’s failure to

object to these prosecutorial references

constituted ineffective assistance of counsel and

excuses any procedural default that may have

occurred.

A. Applicable Standards of Review 

 In an appeal from a ruling on a petition for

habeas relief, we review a district court’s

findings of fact for clear error and its rulings
on issues of law de novo. See Foster v. Schomig,

223 F.3d 626, 634 (7th Cir. 2000), cert. denied,

Foster v. Neal, ___ S. Ct. ___, 2001 WL 285839

(U.S. Mar. 26, 2001); Gardner v. Barnett, 199

F.3d 915, 918 (7th Cir. 1999) (en banc), cert.

denied, Gardner v. Neal, 529 U.S. 1079 (2000).

Additionally, because the habeas petition in this

case was filed after the effective date of the

Antiterrorism and Effective Death Penalty Act of

1996 ("AEDPA"), the standard of review contained

in that Act governs Ms. Ouska’s claims. See Lindh

v. Murphy, 521 U.S. 320, 322-23 (1997); Braun v.

Powell, 227 F.3d 908, 916 (7th Cir. 2000), cert.

denied, 121 S. Ct. 1164 (2001). After AEDPA, the

federal habeas statute allows us to grant habeas

relief only if the state court’s denial of relief

"was contrary to, or involved an unreasonable

application of, clearly established Federal law,

as determined by the Supreme Court of the United

States" or "was based on an unreasonable

determination of the facts in light of the

evidence presented." 28 U.S.C. sec. 2254(d); see

also Braun, 227 F.3d at 916. "This standard only

applies, however, to a ’claim that was

adjudicated on the merits in State court proceedings.’"

Braun, 227 F.3d at 916 (quoting 28 U.S.C. sec.

2254(d)). We have noted that the Supreme Court

has "explained that a state court decision is

’contrary to’ Supreme Court precedent ’if the

state court arrives at a conclusion opposite to

that reached by this Court on a question of law’

or ’if the state court confronts facts that are

materially indistinguishable from a relevant

Supreme Court precedent and arrives at a result

opposite to ours.’" Anderson v. Cowan, 227 F.3d

893, 896 (7th Cir. 2000) (quoting Williams v.

Taylor, 529 U.S. 362, 405-06 (2000)).

Additionally, an "unreasonable application" of

clearly established Supreme Court precedent

occurs "’if the state court identifies the

correct governing legal rule from this Court’s

cases but unreasonably applies it to the facts of

the particular state prisoner’s case’ or ’if the

state court either unreasonably extends a legal

principle from our precedent to a new context

where it should not apply or unreasonably refuses

to extend that principle to a new context where

it should apply.’" Id. at 896 (quoting Williams,

529 U.S. at 407-08). We review whether a state

ruling was "contrary to" clearly established law

de novo; however, in determining whether a state

court decision was an "unreasonable application

of" clearly established law, we defer to any

reasonable state court decision. See id. at 896-

97; Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.

1999). With that standard of review in mind, we

now address Ms. Ouska’s claims. 

B. Enlargement of the Certificate of

Appealability 
 Before proceeding further, we shall determine

whether, as Ms. Ouska requests, we ought to

enlarge the certificate of appealability to

include her contention that the prosecution’s use

of her pre-arrest silence violated her rights

under the Due Process Clause. 

1.

 In issuing a certificate of appealability

("certificate"), the circuit judge limited the

issues on appeal to "[w]hether the prosecution’s

use of Ouska’s post-arrest silence violated her

due process rights and whether Ouska’s trial

counsel was ineffective in failing to object to

the prosecution’s use of Ouska’s post-arrest

silence." Order of Dec. 21, 1999./6 In her

appellate briefs, Ms. Ouska asks us to amend that

certificate to include her claim that the

prosecution infringed her privilege against selfincrimination by introducing testimony of her

pre-arrest, pre-Miranda silence in its case-inchief.

 Pursuant to 28 U.S.C. sec. 2253(c), a petitioner

in habeas corpus may only appeal those issues for

which a certificate of appealability has been

granted. See Porter v. Gramley, 112 F.3d 1308,

1312 (7th Cir. 1997). A certificate may issue

only as to those claims for which the applicant

has made a substantial showing of the denial of a

constitutional right. See 28 U.S.C. sec.

2253(c)(2). We have noted that, if a certificate

is granted as to certain issues, but the

petitioner is later able to make a substantial

showing of the denial of a constitutional right

as to a different issue, we shall amend the

certificate to include such a claim. See

Rodriguez v. Scillia, 193 F.3d 913, 920 (7th Cir.

1999); Williams v. Parke, 133 F.3d 971, 975 (7th

Cir. 1997).

 The State asks us to refuse to consider Ms.

Ouska’s request to amend the certificate. It

submits that, because Ms. Ouska waited until the

filing of her appellate briefs to request that we

do so, and because this court has already issued

a certificate as to specific issues, we should

refuse to amend it now. Consideration of such a

request, argues the State, "wastes time and

resources and distracts the parties and the

court." Appellee’s Br. at 10. However, we have

often considered requests to amend a certificate

to include additional issues, not only when a

party specifically asks that we do so in its

briefs, see e.g., Schaff, 190 F.3d at 528; Hugi

v. United States, 164 F.3d 378, 380 (7th Cir.

1999), but also when a party implicitly makes

such a request by simply including issues in its

briefs that were not specified in the
certificate, see, e.g., Rodriguez, 193 F.3d at

920-21; Sylvester v. Hanks, 140 F.3d 713, 715

(7th Cir. 1998); Williams, 133 F.3d at 975. Of

course, when we have determined that the

expansion of a certificate was not warranted, we

have noted that "we are not required to and will

not" address arguments outside of those issues

certified for appeal. Fountain v. United States,

211 F.3d 429, 433 (7th Cir. 2000). 

 In Porter v. Gramley, 112 F.3d 1308 (7th Cir.

1997), we addressed a similar request by a state.

In that case, a district court granted a

certificate with respect to only one claim; on

appeal the petitioner asked that we expand the

certificate to include a separate claim. See

Porter, 112 F.3d at 1312. The State of Illinois

objected, arguing that the petitioner should

first have to make an explicit request for an

expansion of the certificate before raising the

issue on appeal. See id. We noted that Federal

Rule of Appellate Procedure 22(b), which states

that when a petitioner makes "no express request

for a certificate . . . the notice of appeal

constitutes a request [for a certificate],"

indicates that, when a district court granted a

certificate only as to certain issues, this court

should consider a notice of appeal addressing

other issues as an implicit request to expand

that certificate. See id. As a result, we

declined to implement a requirement similar to

that which the State asks for here. Moreover,

after Porter, we have considered implicit

requests to amend a certificate made in a

petitioner’s briefs, not only when the

certificate was issued by the district court, but

also when it was issued by our own court. See

Rodriguez, 193 F.3d at 920 (noting that this

court "may add issues to [a] certificate" that it

issued, "if it is deemed necessary"); Sylvester,

140 F.3d at 715 (same)./7 

 Therefore, as our past precedent dictates, we

shall continue to consider requests to amend a

certificate of appealability even when they are

presented in a petitioner’s briefs to this court.

We are mindful that the certificate does play an

important role as "a screening device, helping to

conserve judicial (and prosecutorial) resources."

Young v. United States, 124 F.3d 794, 799 (7th

Cir. 1997). However, in those rare instances

where the importance of an issue does not become

clear until later in an appellate proceeding,

this court has the authority to consider that

issue, even though it is not included in the

initial certificate./8 

2.

 To amend her certificate of appealability, Ms.
Ouska must make a substantial showing that the

State’s use of her pre-arrest silence at trial

violated her constitutional rights. To do so, she

must demonstrate that reasonable jurists could

debate whether this challenge in her habeas

petition should have been resolved in a different

manner or that the issue presented was adequate

to deserve encouragement to proceed further. See

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);

Rutledge v. United States, 230 F.3d 1041, 1047

(7th Cir. 2000), cert. denied, 121 S. Ct. 1207

(2001).

 The Illinois Appellate Court limited its review

of the prosecution’s use of Ms. Ouska’s silence

to instances of impeachment and did not address

the use of that silence in the prosecutor’s casein-chief. We therefore review this issue under

pre-AEDPA standards. 

 In Jenkins v. Anderson, 447 U.S. 231, 238

(1980), the Supreme Court ruled that the Fifth

Amendment’s privilege against self-incrimination

is not violated when the prosecution uses a

defendant’s pre-arrest silence to impeach that

defendant’s credibility. The Court reasoned that,

although it "can be argued that a person facing

arrest will not remain silent if his failure to

speak later can be used to impeach him," once a

defendant voluntarily decides to take the stand,

that individual has an obligation to testify

truthfully. Id. at 236-38. At that point, the

"’interests of the other party and regard for the

function of courts of justice to ascertain the

truth become relevant, and prevail in the balance

of considerations determining the scope and

limits of the privilege against self-incrimination.’"

Id. (quoting Brown v. United States, 356 U.S.

148, 156 (1958)). 

 Jenkins, however, left open the question of

whether pre-arrest silence could be used against

a defendant, not for impeachment purposes, but as

substantive evidence of guilt. See id. at 236

n.2. We addressed that issue in United States ex

rel. Savory v. Lane, 832 F.2d 1011 (1987). Savory

involved a defendant who, in a non-custodial

setting and without being provided with Miranda

warnings, refused to answer any questions from

police officers regarding a murder investigation.

See id. at 1015. In that case, we concluded that

the Supreme Court’s opinion in Griffin v.

California, 380 U.S. 609 (1965), which had

forbidden the prosecution from using a

defendant’s silence at trial as an inference of

his guilt, "applies equally to a defendant’s

silence before trial, and indeed, even before

arrest." Savory, 832 F.2d at 1017. We reasoned

that the right to remain silent attached before

the institution of adversarial proceedings, and
although "the presence of Miranda warnings might

provide an additional reason for disallowing use

of the defendant’s silence as evidence of guilt,

they are not a necessary condition to such a

prohibition." Id. at 1018./9 Lastly, we noted

that, because the defendant in Savory did not

take the stand, the prosecution’s motive in

referring to his pre-arrest, pre-Miranda silence

was to suggest that he was guilty, not to impeach

his testimony, as was the case in Jenkins. See

id. at 1017.

 In this case, the prosecution made reference to

Ms. Ouska’s pre-arrest, pre-Miranda silence

regarding Te’s murder, not only during its crossexamination of Ms. Ouska, but also during its

case-in-chief. This reference occurred when the

State questioned Detective Shields regarding his

discussion with Ms. Ouska about Te’s death on the

day after the murder. In response to the

prosecution’s questions, Detective Shields noted

that Ms. Ouska repeatedly declined to discuss the

murder, and he referred to her attitude as

"uncooperative." R.7-8 at 16C. The district court

ruled that, because Ms. Ouska later testified in

the case and provided her own explanation for her

silence, the prosecution was free to comment on

her pre-arrest silence as a method of impeaching

her testimony. See R.18 at 4-11 (distinguishing

Savory as a case where the defendant did not take

the stand, such that any reference to his silence

must have been to suggest his guilt).

 Ms. Ouska argues that the prosecution’s

reference to her silence in its case-in-chief,

before she had ever taken the stand, shows that

its purpose in using that silence was to

demonstrate substantive evidence of her guilt,

not to impeach her credibility. Our opinion in

United States v. Hernandez, 948 F.2d 316 (7th

Cir. 1992), supports this claim. In Hernandez, we

held that, when the prosecution makes reference

to a defendant’s pre-Miranda silence in its casein-chief,/10 that reference demonstrates that

those comments were intended as an inference of

the defendant’s guilt, even when that defendant

later takes the stand. See 948 F.2d at 323.

Moreover, we also noted that there was no

evidence that the improper references in the

prosecution’s case-in-chief were made

inadvertently. See id. The prosecutor in

Hernandez had returned to questions regarding the

pre-Miranda silence after an objection by the

defense--a fact that we found to demonstrate a

deliberate attempt to imply guilt and to show

that "the prosecutor here asked his question

expecting the answer he got." Id. In Ms. Ouska’s

case, as in Hernandez, the State made reference

to her pre-arrest, pre-Miranda silence in its

case-in-chief, before Ms. Ouska ever took the
stand. Moreover, there was no indication that the

State’s questioning of Detective Shields

regarding Ms. Ouska’s silence was inadvertent or

was otherwise not meant to suggest guilt. The

State not only asked Detective Shields a number

of follow-up questions regarding Ms. Ouska’s

silence at the hospital, but also continued to

refer to the exchange between the two during its

cross-examination of Ms. Ouska. 

 The State, relying on United States v.

Davenport, 929 F.2d 1169 (7th Cir. 1991), argues

that Savory’s rule against the use of pre-arrest

silence does not apply when a defendant agrees to

speak with authorities, but then later chooses to

stop doing so. Davenport involved two defendants

who, aware that they were under investigation by

the I.R.S. regarding unusually large deposits

they had made, decided to answer an I.R.S.

agent’s questions regarding the transaction in an

attempt to ward off future prosecution./11 See

929 F.2d at 1171-74. After "start[ing] down this

path of self-exculpation," the defendants refused

to answer other, related questions of the agents;

at trial, they invoked their right against

compulsory self-incrimination to prevent the

admission of any of the comments they made to the

investigators. Id. at 1174. We explained that:

The privilege against self-incrimination is not a

privilege to attempt to gain an advantage in the

criminal process, whether in its investigatory or

its trial stage, by selective disclosure followed

by a clamming up. Having voluntarily given the

agent their version of the events, the

[defendants] forfeited their privilege not to

answer questions concerning that version.

Id. at 1174-75; see also Williams v. Chrans, 945

F.2d 926, 953 (7th Cir. 1991). However, Ms.

Ouska’s actions are different than those of the

defendants in Davenport in some important

respects. Ms. Ouska did not consent to accompany

Detective Shields to the police station knowing

that she would be questioned regarding Te’s

murder--instead, she was told that she would be

looking at mug shots of her assailant. Moreover,

the record demonstrates that once at the station,

as soon as the police began to inquire about Te’s

death, Ms. Ouska immediately ceased the

interview, requested her lawyer and later left

the station./12 These facts do not suggest a

suspect who, as was the case in Davenport, aware

that she was being questioned regarding an

investigation, attempted to exculpate herself

with some answers and then later refused to

answer additional questions related to those

comments. It is true that at the time of her

conversation at the station with Detective

Shields, Ms. Ouska previously had told police a
story that attempted to shield herself from

inquiry regarding Te’s murder; she falsely

claimed that she had been stabbed on the street

by a Mexican man. However, in light of the fact

that, when aware that she was under investigation

for Te’s murder, Ms. Ouska immediately declined

to answer any and all questions, we are doubtful

that her previous comments regarding her initial

explanation of the stabbing would be sufficient

to start her down the "path of self-exculpation"

under the meaning of Davenport, 929 F.2d at 1174.

 As a result, we believe that Ms. Ouska has made

a substantial showing, adequate to deserve

encouragement to proceed further, that the State

used her pre-arrest, pre-Miranda silence as an

improper inference of her guilt, in violation of

her constitutional rights. The State, as it had

the right to do regarding issues not included in

a certificate of appealability, declined to

address Ms. Ouska’s argument fully in its brief

regarding the pre-arrest silence claim. See

Schaff, 190 F.3d at 528 n.16; Sylvester, 140 F.3d

at 715. Typically at this stage, we would amend

the certificate to add this issue and "extend the

appellee an opportunity to file a supplemental

brief." Sylvester, 140 F.3d at 715. However, for

the reasons set forth in Section II.C of this

opinion, this step will not be necessary, as any

constitutional error in the use of Ms. Ouska’s

pre-arrest, pre-Miranda silence was harmless. See

Brecht, 507 U.S. at 637. Accordingly, we shall

not enlarge the certificate of appealability.

C. The Prosecutor’s Use of Post-Arrest

Silence

 In addition to its references to Ms. Ouska’s

pre-arrest silence, the State also made reference

to Ms. Ouska’s post-arrest, post-Miranda silence

by noting her failure to claim that it was

Martinez, and not her, who had murdered Te. In

its consideration of this issue, the Illinois

Appellate Court relied upon the doctrine of

waiver because there had been no objection to

these prosecutorial statements at trial. Ms.

Ouska must therefore show cause and prejudice

before we can consider the merits of this

contention. See Jenkins v. Nelson, 157 F.3d 485,

491 (7th Cir. 1998) ("If a state court does not

reach a federal issue because of a state

procedural bar, that issue cannot be raised in a

writ of habeas corpus to a federal court without

a showing of cause and prejudice.") (citing

Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977)).

Ms. Ouska maintains that the ineffective

assistance of her trial counsel in failing to

object to the use of the post-arrest silence

satisfies the standard for "cause and prejudice."

See Murray v. Carrier, 477 U.S. 478, 488 (1986). 
 The Supreme Court has explained that to

demonstrate "prejudice" under the cause and

prejudice standard, a defendant must "shoulder

the burden of showing, not merely that the errors

at his trial created a possibility of prejudice,

but that they worked to his actual and

substantial disadvantage, infecting his entire

trial with error of constitutional dimensions."

United States v. Frady, 456 U.S. 152, 170 (1982)

(emphasis in original)./13 

 We believe that Ms. Ouska has not demonstrated

prejudice from any improper use of her postarrest silence in light of the very substantial

other evidence of her guilt. As an initial

matter, the evidence demonstrated that Ms. Ouska

had the opportunity to commit the murder on the

morning of May 7, 1992, and that she was at the

murder scene at the time of Te’s death. Fontenot,

Ms. Ouska’s former foster mother, testified that,

on the night before and the morning of the

murder, she had been arguing with Ms. Ouska about

money that Ms. Ouska had borrowed from Te.

Fontenot maintained that, on the morning of the

murder, Ms. Ouska left home in order to obtain

money so that this debt could be repaid. Ms.

Ouska left that morning at approximately 9:20

a.m. and returned, bloodied from a wound to her

leg, at 10:00 a.m.; testimony established that Te

was killed between 9:00 a.m. and 10:00 a.m. Ms.

Ouska herself also admits that she was at Te’s

store, located only two or three minutes from the

Fontenot home where Ms. Ouska lived, at the time

of the murder. She contends, however, that, when

she arrived at the scene, she saw Martinez

repeatedly stabbing the victim.

 Additionally, significant physical evidence

linked Ms. Ouska to the crime scene and the

murder. A knife was found under Ms. Ouska’s

mattress on the day after the murder; the knife

contained blood later found to be consistent with

Te’s blood type and silicon later determined to

be consistent with the silicon gel implants that

Te wore in her prosthesis. Fontenot testified

that only three weeks before, she had seen the

same knife in Ms. Ouska’s room and that Ms. Ouska

explained to Fontenot at that time that she had

found the knife in the basement of the house.

Fontenot also said that, on the afternoon of the

murder, she and her daughter found blood-stained

money and a printout of winning lottery numbers

from a previous date on Ms. Ouska’s dresser./14

The blood on those two one-dollar bills was later

found to be consistent with Te’s blood enzyme and

protein type. Additionally, blood consistent with

Ms. Ouska’s blood type was found in the front

room of Te’s store, and blood consistent with Ms.

Ouska’s blood enzyme and protein type was found
on a rag recovered from the bathroom sink in the

rear of the store.

 Other evidence found in Ms. Ouska’s possession

casts doubt on the credibility of her version of

events. When the police arrived at the store

after Te’s murder, the store’s cash register was

found open and emptied of money. Among Ms.

Ouska’s personal items, which the police had

inventoried after she accompanied Detective

Shields to the station on the day after the

murder, the police found a blood-stained jacket.

The blood on the jacket was later found to be

consistent with Te’s blood. In the pocket of that

jacket was a medal depicting Saint Benedict./15

Teodora Kwong, Te’s sister, testified that the

medal was the same one that she had purchased in

the Phillippines and given as a gift to Te and

that Te kept the medal in her cash register at

the store. The police also found a small green

pencil in the jacket, later identified by Arthur

Kwong, Te’s brother-in-law, as one similar to the

pencils that Te kept in her store for customers

to use in filling out lottery slips./16 Lastly,

the police discovered $87 in one-and five-dollar

bills in the jacket, despite the fact that

Fontenot had testified that Ms. Ouska left the

house on the morning of the murder to look for

money. 

 Additional evidence also provided reason for the

jury to doubt the credibility of Ms. Ouska’s

testimony. On the morning of the murder, Ms.

Ouska was ultimately taken to Illinois Masonic

Medical Center to receive treatment for her

wounds, and she stayed there until the next day,

May 8, 1992. While there, she made repeated phone

calls to the apartment of a friend, Lenoir

Sanchez, who lived in the building next to the

Fontenot home. Sanchez testified that Ms. Ouska

asked her to go next door and to obtain

"something from under [Ms. Ouska’s] mattress,"

but when Sanchez asked what the item was, Ms.

Ouska would not tell her. R.7-4 at 255C. Both

Sanchez and her boyfriend Tommy Gonzalez each

made separate attempts to get this unknown item

from the Fontenot home. However, earlier that

morning, under the same mattress, Rutledge had

found the blood-stained knife used in the murder.

As a result, Rutledge would not let Sanchez or

Gonzalez in, and the police were called soon

thereafter. Ms. Ouska subsequently testified that

she kept her HMO card and paperwork under the

mattress, materials that she needed due to her

hospital stay, and that she asked Sanchez to

retrieve that information. Ms. Ouska also claimed

that she did not place the knife under the

mattress; she explained that she had left the

knife on top of the bed, in the pocket of the

sweatshirt she had been wearing that morning,
before she left for the hospital. Despite this

alternate explanation, Ms. Ouska’s phone calls to

Sanchez and her request that Sanchez retrieve

"something" from under Ms. Ouska’s mattress, the

same mattress under which the knife had been

found earlier that morning, could have given the

jury additional license to question Ms. Ouska’s

credibility.

 Moreover, Ms. Ouska testified that at no point

did she enter the rear portion of the convenience

store, where Te was stabbed and where Te’s body

was found. Blood consistent with Te’s blood,

however, was later found on Ms. Ouska’s jacket.

Additionally, blood consistent with Ms. Ouska’s

blood enzyme and protein type was found on a rag

recovered from the store’s bathroom. The bathroom

is located in the rear portion of the store.

 Lastly, a number of other aspects of Ms. Ouska’s

testimony were inconsistent with her previous

rendition of events. Between 9:00 a.m. and 10:00

a.m. on the morning of the murder, Ms. Ouska went

to the home of her neighbor, Erma Gonzalez, and

told Gonzalez that a Mexican man had tried to rob

her and had stabbed her with a screwdriver,

causing the wound in her leg. Yet, Ms. Ouska

later told Fontenot, Rutledge and the police

officers who first spoke with her about her

injuries that she had been stabbed with a knife,

not a screwdriver. Then, at trial, Ms. Ouska

claimed that it was Martinez who had stabbed her,

not the Mexican man that she had earlier

described. Additionally, when Ms. Ouska related

her story of the stabbing by the Mexican man to

Fontenot and Rutledge, she claimed that, at one

point, she had possession of the knife used in

the stabbing but had dropped it on the street;

Ms. Ouska later testified that she was concealing

the knife at that time in her jacket, and that

same knife was later found under her mattress.

 Ultimately, the evidence supporting Ms. Ouska’s

guilt in this case was substantial and multifaceted. That evidence demonstrated that she had

the opportunity to kill Te on the morning of May

7, 1992, and that she was at the crime scene when

the murder occurred. A number of items that

appear to have come from the store, and more

particularly its cash register, were found later

in Ms. Ouska’s clothing, and Ms. Ouska cannot

explain how they came to be there. Blood

consistent with Te’s blood was found on Ms.

Ouska’s jacket, on money found in Ms. Ouska’s

room and, most importantly, on the knife found

under Ms. Ouska’s mattress. Testimony linked Ms.

Ouska to the murder weapon and suggested that she

attempted to hide that weapon before others could

discover it. Moreover, Ms. Ouska’s explanation of

the events surrounding Te’s death were
inconsistent, casting further doubt on her

credibility. Lastly, as the district court noted,

"there is no evidence that corroborates [Ms.

Ouska’s] story about Martinez being the one who

attacked the victim." R.18 at 13. 

 Given this evidence, we do not believe that Ms.

Ouska can establish that she suffered prejudice

by the prosecutor’s remarks about her post-arrest

silence.

D. Ineffective Assistance of Counsel

 Ms. Ouska also asserts, as an independent ground

for relief, that she was deprived of the

effective assistance of counsel, guaranteed by

the Sixth Amendment, because her trial counsel

failed to object to the State’s references to her

post-arrest silence./17 For the sake of

completeness, we now shall address the claim in

this context. In order to prevail on a claim of

ineffective assistance of counsel, Ms. Ouska must

satisfy the familiar test set forth in Strickland

v. Washington, 466 U.S. 668 (1984). Under

Strickland, Ms. Ouska must demonstrate (1) that

her counsel’s performance was deficient, such

that under the circumstances, it was unreasonable

under prevailing professional norms and (2) that

she was prejudiced by her counsel’s deficient

performance. See Kitchen v. United States, 227

F.3d 1014, 1019-20 (7th Cir. 2000) (citing

Strickland, 466 U.S. at 687-88). This claim is

one that was decided on the merits by the

Appellate Court of Illinois, which determined

that Ms. Ouska could not satisfy the test’s

second prong, as "the evidence was not closely

balanced," and, therefore, "counsel’s failure to

object [to the use of Ms. Ouska’s silence] did

not affect the result of the proceeding." R.1,

Ex.A at 10. The district court agreed with this

determination.

 As we have noted earlier, Ms. Ouska filed her

petition for habeas corpus on June 1, 1998, after

the effective date of AEDPA; therefore, AEDPA

applies to her case. See Williams v. Taylor, 529

U.S. 420, 429 (2000); Foster, 223 F.3d at 631

n.2. Under that statute, Ms. Ouska cannot obtain

habeas corpus relief on a claim that the

Appellate Court of Illinois addressed on the

merits, unless that court’s determination

"resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States." 28 U.S.C.

sec. 2254(d)(1). We have noted that when

addressing a claim of ineffective assistance of

counsel under the AEDPA’s deferential standard of

review, "’only a clear error in applying

Strickland’s standard would support a writ of
habeas corpus.’" Franklin v. Gilmore, 188 F.3d

877, 885 (7th Cir. 1999) (quoting Holman v.

Gilmore, 126 F.3d 876, 882 (7th Cir. 1997)),

cert. denied, 529 U.S. 1039 (2000). This

principle applies because "Strickland builds in

an element of deference to counsel’s choices in

conducting the litigation [and] sec. 2254(d)(1)

adds a layer of respect for a state court’s

application of the legal standard." Id. (quoting

Holman, 126 F.3d at 881). 

 Under this standard of review, even assuming

arguendo that Ms. Ouska’s trial counsel was

deficient for failing to object to the use of her

silence, any such error would not have prejudiced

her. There is no reasonable probability that, but

for that error, the result of the proceeding

would have been different. See Strickland, 466

U.S. at 694. As we have previously discussed in

detail, the evidence in the record supporting Ms.

Ouska’s conviction is considerable. In light of

that evidence, we believe that any harm caused by

the failure of Ms. Ouska’s trial attorney to

object to the State’s references to her silence

would not have changed the result of her trial.

Thus, Ms. Ouska cannot satisfy the second prong

of the Strickland test, and her claim must fail.

The decision of the Appellate Court of Illinois

is not "an unreasonable application" of federal

law. 28 U.S.C. sec. 2254(d)(1).

Conclusion

 Therefore, for the reasons set forth in this

opinion, the judgment of the district court is

affirmed.

AFFIRMED

/1 In her petition for a writ of habeas corpus, Ms.

Ouska named Odie Washington, then the director of

the Illinois Department of Corrections, as the

Respondent in this action. Subsequently, pursuant

to Federal Rule of Appellate Procedure 43(c),

Gwendolyn Thornton replaced Washington as the

Respondent; Thornton was later replaced by the

present Respondent, Lynn Cahill-Masching. For

ease of reference, we shall refer to the

Respondent in this opinion as "the State."

/2 The structure of the convenience store where Te

worked was described in detail by John Redmond, a

forensic investigator and evidence technician for

the Chicago Police Department, who arrived at the

store soon after the murder to investigate the

scene. See R.7-4 at 102C-103C. The store

contained a customer area that patrons entered

when they passed through the front entrance. A

dividing wall separated this customer area from
the rear portion of the store, and there was a

small window in the dividing wall where customers

received service from store workers, such as Te.

The wall included a door that led to the rear of

the store; when police arrived after the murder,

this door was open, but there was no sign of

forced entry. Te’s body was found in the rear

portion of the store, approximately 25 feet from

the door located in the dividing wall.

/3 Ms. Ouska’s trial counsel did not file a motion

to suppress evidence obtained during the police’s

search of this bag of clothing. The Appellate

Court of Illinois noted that Ms. Ouska

voluntarily gave this bag to the police and ruled

that the failure of her counsel to file a

suppression motion did not rise to the level of

ineffective assistance of counsel. See R.1, Ex.A

at 11-12. The validity of this search is not

disputed by the parties on appeal.

/4 For example, the prosecution noted that "the

first time that [Martinez’s] name ever pops up to

. . . any type of law enforcement personnel, is

when she opens her mouth on the stand two and a

half years after the murder." R.7-2 at E-70.

/5 The district court presumed that Ms. Ouska was

not given Miranda warnings during her visit to

the police station and observed that there was

"no contention" that this visit, occurring after

her release from the hospital, was a custodial

interrogation. R.18 at 11 n.1. The court also

assumed that Ms. Ouska was given Miranda warnings

when she surrendered to police on May 28, 1992.

See id. at n.2. The parties do not challenge

those assumptions on appeal.

/6 The district court denied Ms. Ouska’s request for

a certificate of appealability as to each of the

issues she raised. See R.22. If a district court

declines to issue a certificate, this court may

issue one. See 28 U.S.C. sec. 2253(c); Fed. R.

App. Pro. 22(b)(2).

/7 Some courts of appeals require that, in order to

expand the issues in a certificate, a party must

present explicitly the request by motion to the

court of appeals; others, as we have done, treat

a notice of appeal as an implicit request to

amend the certificate. See Jones v. United

States, 224 F.3d 1251, 1255 (11th Cir. 2000)

(collecting cases). These courts also seem not to

distinguish, as we have not, between cases where

a court of appeals considers expanding a district

court’s grant of a certificate and cases such as

this, where a court of appeals is asked to expand

a certificate that the circuit court itself has

granted. See, e.g., Valverde v. Stinson, 224 F.3d

129, 136 (2d Cir. 2000); Hiivala v. Wood, 195
F.3d 1098, 1104 (9th Cir. 1999), cert. denied,

Hiivala v. Lambert, 529 U.S. 1009 (2000); Murray

v. United States, 145 F.3d 1249, 1250 (11th Cir.

1998).

/8 We also note that when Ms. Ouska made her initial

request to this court for a certificate, she did

so as a pro se plaintiff.

/9 The circuits are divided regarding the proper

answer to this issue. See, e.g., Combs v. Coyle,

205 F.3d 269, 282-83 (6th Cir.) (explaining the

circuit split), cert. denied, Bagley v. Combs,

121 S. Ct. 623 (2000). Most recently, the Sixth

Circuit joined this court, and the First and

Tenth Circuits, in holding that the use of a

defendant’s pre-arrest silence as substantive

evidence of guilt violates that defendant’s Fifth

Amendment rights. See id. at 283 (explaining that

"[i]n a prearrest setting as well as in a postarrest setting, it is clear that a potential

defendant’s comments . . . might be used in a

criminal prosecution; the privilege [against

self-incrimination] should thus apply").

/10 In Hernandez, the silence that was used against

the defendant involved his refusal to say

anything to police after being placed under

arrest, but before the Miranda warnings were read

to him. See 948 F.2d at 322. Therefore, unlike

Ms. Ouska’s situation here and the situation in

Savory, the alleged Fifth Amendment violation in

Hernandez did not involve pre-arrest silence.

However, we explained in Hernandez that the Fifth

Amendment violation at issue there was distinct

from the type of violation that Ms. Ouska now

claims with respect to the use of her post-arrest

silence. See 948 F.2d at 323 n.4. We noted that

the latter claim was addressed by the Supreme

Court’s decision in Doyle v. Ohio, 426 U.S. 610,

618 (1976), which barred the use of a defendant’s

silence after Miranda warnings were given,

explaining that it constituted a violation of the

Due Process Clause of the Fourteenth Amendment.

Because Ms. Ouska’s pre-arrest silence claim

involves the use of her silence before Miranda

warnings were given, it implicates our decision

in Savory regarding the privilege against selfincrimination, not the rule of Doyle. 

/11 In Davenport, the defendants were not placed

under arrest and were not in custody, but were

read their Miranda rights. See 929 F.2d at 1171.

/12 The opinion of the Appellate Court of Illinois

states that when first asked at the station about

the knife found under her bed, Ms. Ouska "said

she did not want to talk and left the station."

R.1, Ex.A at 5. The district court opinion

reiterates this fact. See R.18 at 3. Detective
Shields, in his testimony, similarly confirms

that, when first asked a question about Te’s

murder, Ms. Ouska refused to answer any questions

about it and then left the police station. See

R.7-8 at 16C. For her part, Ms. Ouska also

testified that immediately upon being confronted

with the knife and asked about the murder, she

refused to answer any further inquiries and

requested her lawyer. See R.7-3 at D-170. She

then went on to state that Detective Shields

continued to question her for "[s]ix to seven

hours" more, before she was able to get a ride

home from the station. Id. at D-171. She was

asked no follow-up questions during her testimony

as to what, if anything, she said to the

detective during this additional questioning.

 Ms. Ouska’s description of events appears to

conflict with the detective’s claim that Ms.

Ouska left the station right away after being

confronted with questions about Te’s death. Yet

regardless of this discrepancy as to how long Ms.

Ouska was questioned, neither she nor the

detective asserted that after being first

interrogated about the murder, Ms. Ouska did

anything but decline to answer any and all

questions related to it. Her reply brief clearly

states that "Ouska did not continue her

conversation with the detective after invoking

her Fifth Amendment right" and that she "did not

pick and cho[o]se questions she wished to answer

or attempt to convince the detective to terminate

the investigation." Appellant’s Reply Br. at 10.

As there is nothing in the record to contradict

this explanation, we accept it as true for

purposes of this opinion.

/13 Here, Ms. Ouska relies on the alleged ineffective

assistance of counsel as "cause" for her failure

to object. As we discuss in Section II.D of this

opinion, an allegation of ineffective assistance

of counsel is governed by the test set forth by

the Supreme Court in Strickland v. Washington,

466 U.S. 668 (1984). Under that test, an

individual must show: (1) that her counsel’s

performance was deficient, such that under the

circumstances, it was unreasonable under

prevailing professional norms; and (2) that she

was prejudiced by her counsel’s deficient

performance. See Strickland, 466 U.S. at 687-88.

We are aware of the continuing ambiguity as to

whether a finding of prejudice under Strickland

would be sufficient to establish prejudice for

the purposes of Wainwright v. Sykes’s cause and

prejudice analysis. See Fern v. Gramley, 99 F.3d

255, 259 n.4 (7th Cir. 1996); Freeman v. Lane,

962 F.2d 1252, 1259 n.5 (7th Cir. 1992). We need

not resolve this issue today because it is clear

that under any formulation of prejudice, Ms.

Ouska cannot prevail.
/14 Ms. Ouska later testified that the lottery

printout did not belong to her.

/15 The Appellate Court of Illinois described this

medal of Saint Benedict as "uncommon." R.1, Ex.A

at 10. This conclusion appears to have been drawn

from the testimony of Rev. Charles Dahm, the

pastor of a nearby Catholic church where Te

attended Mass on most mornings. Father Dahm

described the medal as "not a common medal." R.7-

5 at A-190. Ms. Ouska disagrees with the

characterization of the medal as unique.

/16 In her testimony, Ms. Ouska claimed that she had

never seen the Saint Benedict medal or the green

pencil and that they were never in her possession

at any time.

/17 Our certificate of appealability limited Ms.

Ouska’s Strickland claim to the issue of whether

her trial counsel "was ineffective in failing to

object to the prosecution’s use of Ouska’s postarrest silence." Order of Dec. 21, 1999 (emphasis

added). However, even if Ms. Ouska’s request to

expand the certificate to include a claim

regarding the use of her pre-arrest silence, see

supra Section II.B, also constitutes an implicit

request that her ineffective assistance claim be

similarly broadened to account for the failure of

her trial counsel to object to the use of that

silence, we would not find reason to do so. Due

to the weight of the evidence supporting her

guilt, we do not think that Ms. Ouska can make a

substantial showing that her Sixth Amendment

rights were violated under Strickland’s standard,

even taking into account the failure to object to

the use of her pre-arrest silence. See 28 U.S.C.

sec. 2253(c)(2).