1

 After examining the briefs and the record, we have concluded that oral argument is

unnecessary. Thus, the appeal is submitted on the briefs and the record. See Fed. R. App. P.

34(a)(2).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois  60604

                Submitted September 12, 2008

Decided September 24, 20081

Before

FRANK H. EASTERBROOK, Chief Judge

WILLIAM J. BAUER, Circuit Judge

TERENCE T. EVANS, Circuit Judge

No. 08‐1293

ANTOINE TOLIVER, Appeal from the United States District

                                Petitioner‐Appellant, Court for the Northern District of Illinois,

Eastern Division.

                     v.

No. 00 C 7534

DONALD HULICK,

       Respondent‐Appellee, Joan B. Gottschall, Judge.

O R D E R

Antoine Toliver is making a return visit to our court.  In 1997, he was convicted

of first degree murder and attempted first degree murder by a jury in Cook County,

Illinois, and sentenced to 46 years in prison.  After exhausting his state court remedies,

he filed a habeas petition in federal district court.  The district court granted relief,

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 08-1293 2

2

 As strange as it may sound, we do not know--even now--Younes’s immigration status.

concluding that Toliver was denied his constitutional right of confrontation when the

state court prohibited him from asking a key witness (actually the only eyewitness to

the murder) about that witness’s immigration status.  We disagreed.  Toliver v. Hulick,

470 F.3d 1204 (7th Cir. 2006).  Because the district court had found it unnecessary to

examine all of Toliver’s claims, we reversed and remanded with instructions to evaluate

the balance of the petition.  On remand, the district court found that the remaining

claims lacked merit.  Toliver is here again appealing that decision.

We set out the facts in our first opinion, and we will not repeat them here.

Suffice it to say that the eyewitness, Samir Younes, testified that he saw Toliver leave a

liquor store and shoot two men with a gun.  There was nothing particularly

unbelievable about Younes’s testimony‐‐he worked at the store and had a good chance

to witness the incident‐‐so defense counsel sought to impeach him based on the fact that

he may have been in the country illegally.  The trial judge barred defense counsel from

questioning Younes about his immigration status, partly because counsel did not have

the evidence to prove whether Younes actually had a right to be here.2  The state

appellate court upheld this determination, but the district court, as we noted, agreed

with Toliver that the state trial court infringed his confrontation rights.  Although we

found it a “close question,” id. at 1208, we reversed because the decision to exclude,

however unwise, did not amount to constitutional error.  And assuming the error did

rise to that level, we found it harmless.

On remand, the district court decided that Toliver had procedurally defaulted a

number of the claims that it did not review on the first go‐round.  Toliver does not

challenge that determi‐nation, but he questions the court’s treatment of the issues it did

reach.

This brings us back to the evidence at trial.  Although Younes’s testimony was

important, it wasn’t the only proof against Toliver.  Toliver confessed to the crime

following police interro‐gation, which we deemed “strong evidence of guilt.”  Id. at

1209.  But Toliver recanted when he took the stand at trial.  He testified that he was

smoking marijuana with friends at the time of the incident, and one of his friends,

Gabriel Garcia, confirmed this story.  Garcia testified he was certain he had been with

Toliver at the time of the murder.
No. 08-1293 3

A questionable alibi to begin with‐‐juries aren’t typically impressed with drug

use‐‐ the explanation became all the shakier when two jurors overheard Garcia tell

someone in the audience that testifying was “the least [he] c[ould] do for Antoine.”

After deliberating for a few hours, the jurors sent a note to the judge telling her what

they had overheard and asking her how they should “handle” it.  When the judge told

the attorneys about the note, defense counsel did not ask the judge to question the

jurors individually to ascertain whether this improper communication affected their

ability to decide the case based on the evidence, nor did he request a mistrial.

Accordingly, the trial judge simply told the jury:

     Ladies and gentlemen, it is your duty to determine the

facts and to determine them only from the evidence

introduced during the trial.  You are not to concern

yourselves with comments or conduct that was not

introduced as evidence during the trial.

Toliver says this was insufficient to ensure a fair trial, and he contends counsel

was constitutionally ineffective in failing to request individual questioning or a mistrial.

The Illinois Appellate Court rejected these contentions, and the district court, following

our remand, held that they did not justify the issuance of a writ of habeas corpus.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner

is entitled to habeas relief when the decision of the state court is either “contrary to” or

“an unreasonable application of” clearly established federal law as determined by the

United States Supreme Court.  28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362

(2000).  Although Toliver presents his issues as distinct claims‐‐he says his rights under

the Due Process Clause and the Sixth Amendment were violated‐‐they collapse into one

analysis.  If there was no due process violation, it is unlikely that counsel performed

ineffectively in failing to object or request a different manner of proceeding.

Because we start with a presumption of effectiveness, a petitioner asserting

ineffective assistance of counsel faces an uphill battle.  See United States v. Hatten‐Lubick,

525 F.3d 575, 579 (7th Cir. 2008).  To achieve victory, Toliver must satisfy the two‐prong

test set forth in Strickland v. Washington, 466 U.S. 668 (1984).  First, he must show that

counsel’s performance “fell below an objective standard of reasonableness.”  Id. at 688.

Second, he must establish “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”  Id. at

694.  Toliver fails to meet either of these requirements.
No. 08-1293 4

Toliver does not argue that his lawyer’s performance was deficient overall, but

just that he erred in not moving for individual questioning of the jurors or for a mistrial.

Although a single mistake can support habeas relief if it undermines confidence in the

outcome, id., counsel’s conduct in this case does not match that description.  The state

appellate court rejected Toliver’s argument, reasoning that even if counsel erred, the

mistake yielded no prejudice because the court’s instruction to the jury cured any taint

from the stray remark.  We agree with the district court‐‐that decision was not an

unreasonable application of the Strickland standard or the underlying due process

principles.

The Due Process Clause promises an accused the right to an impartial jury, one

that determines guilt based on the evidence and the judge’s instructions rather than

preconceived notions or extraneous information.  Morgan v. Illinois, 504 U.S. 719, 726‐27

(1992); Patton v. Yount, 467 U.S. 1025, 1037 n.12 (1984).  “In addition‐‐and this is critical‐‐

due process requires the trial judge, if he becomes aware of a possible source of bias, to

‘determine the circumstances, the impact thereof upon the juror, and whether or not it

was prejudicial.’” Oswald v. Bertrand, 374 F.3d 475, 477‐78 (7th Cir. 2004) (quoting

Remmer v. United States, 347 U.S. 227, 230 (1954)).  A judge should normally undertake

this assessment by questioning jurors directly, along with the participation and input of

counsel.  See Smith v. Phillips, 455 U.S. 209, 217 (1982); Porter v. Gramley, 112 F.3d 1308,

1317 (7th Cir. 1997).  However, that is not always required.  The adequacy of a judge’s

response “is a function of the probability of bias; the greater that probability, the more

searching the inquiry” should be.  Oswald, 374 F.3d at 480.  In many cases, improper

communication or contact with jurors is deemed “presumptively prejudicial.”  Remmer,

347 U.S. at 229.  But that presumption is not omnipresent,  and we have suggested that

“no Remmer hearing is necessary” where a “comment heard by a juror was ambiguous

and innocuous.” Whitehead v. Cowan, 263 F.3d 708, 724‐25 (7th Cir. 2001); see also Sims v.

Rowland, 414 F.3d 1148, 1155 (9th Cir. 2005) (“Remmer and Smith do not stand for the

proposition that any time evidence of juror bias comes to light, due process requires the

trial court to question the jurors alleged to have bias.”).

Due process did not require the trial judge in this case to question the jurors to

determine whether they could remain impartial.  Garcia’s statement‐‐that testifying on

behalf of Toliver was the least he could do‐‐could easily be construed as nothing more

than a confirmation of friendship.  Making the trip to court, in other words, was the

bare minimum Garcia could do for a friend.  Granted, a juror could interpret it more

cynically, i.e., lying was the least Garcia could do.  If not innocuous, then, the overheard
No. 08-1293 5

comment was still ambiguous.  Nonetheless, it might be fair to presume prejudice had

that been the end of things.  But it wasn’t.  The trial judge instructed the jury to

disregard the comment and focus only on the evidence introduced at trial.  In the

circumstances of this case, that was adequate to ensure Toliver was tried by an

impartial jury.

And since there was no constitutional error on the part of the trial judge, counsel

did not perform ineffectively by holding his tongue.  An attorney has no duty to make a

losing argument, see United States v. Edwards, 777 F.2d 364, 365 (7th Cir.1985) (per

curiam), and lawyers often avoid colorable objections for strategic reasons.  A lawyer’s

choices in conducting the litigation, as we recently stated in a case involving a different

Toliver, are owed a measure of deference under the Strickland analysis.  Toliver v.

McCaughtry, ___ F.3d ___, ___, 2008 WL 3917124, *7 (7th Cir. Aug. 27, 2008).  Whatever

counsel’s thinking in this case was, his conduct did not fall “below an objective

standard of reasonableness.”  Strickland, 466 U.S. at 688.  On the other hand, even if

counsel should have moved for individual questioning or a mistrial (assuming also that

the trial court erred in responding to the jury’s note), there has been no showing of

prejudice.  Again, the comment in this case was ambiguous, and the judge’s instruction

was reasonably crafted to cure any taint it may have imparted.  What’s more, the

evidence against Toliver was far from marginal‐‐an eyewitness placed him at the crime

scene and the police secured a confession.  The alibi which the overheard comment

would tend to undermine was not convincing, so it is unlikely the remark had much

effect on the jury’s deliberations.  In light of the judge’s instruction to focus on the

evidence introduced at trial, we perceive no reasonable probability that the result of the

proceeding would have been different had counsel requested individual questioning or

a mistral.

In sum, we agree with the district court that Toliver is not in custody in violation

of the Constitution.  The state appellate court’s decision to that effect was neither

contrary to nor an unreasonable application of clearly established federal law as

determined by the United States Supreme Court.

The judgment of the district court is AFFIRMED.