In the

United States Court of Appeals

For the Seventh Circuit

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No. 04-2115

LARRY W. MYARTT,

Petitioner-Appellant,

v.

MATTHEW J. FRANK, Secretary,

Respondent-Appellee.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 02 C 896—William C. Griesbach, Judge.

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ARGUED DECEMBER 7, 2004—DECIDED JANUARY 21, 2005

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Before BAUER, MANION, and WILLIAMS, Circuit Judges.

BAUER, Circuit Judge. This habeas corpus appeal arises

from Larry Myartt’s conviction in May 2000 for armed

robbery of a dry cleaning store in Milwaukee, Wisconsin.

Myartt claims that he was denied his Sixth Amendment

right to effective assistance of counsel on direct appeal

when his attorney failed to competently argue that the trial

court erred in denying his motion to suppress evidence seized

in the course of an investigatory stop. The district court

rejected Myartt’s argument and denied his petition. We

affirm.
2 No. 04-2115

I. Background

These are the facts that were presented at Myartt’s twoday jury trial in May 2000: At approximately 2:50 p.m. on

March 12, 1998, a man approached the counter at One Hour

Valet Cleaners on Wells Street in Milwaukee and asked coowners Mary Ann and Geraldine Bussey for change. When

Geraldine opened the cash register, the man demanded that

she relinquish the money in the register. Because the man

appeared to have a silver gun in his pocket, Geraldine gave

him the money, along with a security badge. Mary Ann

followed the man after he left the store, but eventually lost

sight of him.

Geraldine then went to nearby Mount Sinai Hospital to

look for the man. At Mount Sinai, she made eye contact

with a man walking out of an emergency room bathroom,

and thought it was the man who had just robbed her. The

man, however, was wearing a black-and-red leather coat,

which was different than the one the robber had worn.

Geraldine followed the man out of Mount Sinai, but stopped

following him at some point, and returned to the dry cleaning store.

The police had arrived by the time Geraldine returned to

the store. After Geraldine related her story to the police, an

officer went to Mount Sinai to follow up. In a garbage can

in the emergency room bathroom, the officer found a red

nylon jacket with black-and-white stripes, a black knit cap,

and a pair of green corduroy pants. The officer then announced over the police radio the description of the suspect

he had received from the Busseys: black male, forties, six

foot, 170 pounds, thin build, black knit cap, red nylon

winter jacket with black and white trim, grayish beard,

possibly intoxicated, armed with a silver handgun.

At 3:15 p.m., about five blocks from the dry cleaning store,

Officer Ross Reinke and his partner observed a man—

petitioner Larry Myartt—that matched the description. The
No. 04-2115 3

officers followed Myartt very slowly in their squad car, and

Myartt looked back at the police a few times. Myartt did not

run or pick up his pace when he saw the squad car. The

officers stopped Myartt, patted him down, and found a toy

cap pistol in his rear waistband. The officers then conducted

a full custodial search and discovered a large amount of

currency, coins, and the security badge from the dry

cleaning store in Myartt’s front pocket. Officer Reineke felt

that Myartt may have been intoxicated because he was

slurring his speech and would not stand still. At the time

the officers stopped him, Myartt was wearing a leather baseball hat, a leather Chicago Bulls jacket, and tinted sunglasses.

Myartt was arrested and charged with armed robbery. 

Prior to trial, Myartt filed a motion to suppress the evidence obtained during the investigative stop based on the

theory that the stop violated his Fourth Amendment rights.

At a hearing, the trial judge carefully compared the police

dispatch information about the suspect with Myartt’s appearance when arrested and concluded that the officers had

a reasonable basis to stop Myartt under Terry v. Ohio, 392

U.S. 1, 88 S.Ct. 1868, 20 L. Ed. 2d 889 (1968) and its progeny. The judge noted that Myartt matched the race, age,

and height of the suspect, and that he was at least a “partial fit” on the weight, hat, and jacket descriptions. Those

factors, coupled with Myartt’s presence five blocks away

from the store about twenty-five minutes after the robbery,

led the judge to conclude that the stop did not offend the

Fourth Amendment. A jury subsequently convicted Myartt

of armed robbery. 

Carl Chesshir represented Myartt on direct appeal.

Chesshir filed an eighteen-page brief on his behalf, with

seven pages devoted to attacking the trial judge’s ruling on

the motion to suppress. The Wisconsin Court of Appeals rejected the Fourth Amendment challenge, concluding that

the officers had reasonable suspicion that Myartt had robbed

the dry cleaning store. The Wisconsin Supreme Court denied a petition for review. 
4 No. 04-2115

Myartt filed a pro se habeas petition in the Wisconsin

Court of Appeals. Although Myartt styled the claim as one

of ineffective assistance of counsel in his brief, he only argued the case under the Fourth Amendment and did not

discuss relevant Sixth Amendment principles. The Wisconsin

Court of Appeals summarily denied the petition, and the

Wisconsin Supreme Court denied review. Myartt then filed

a habeas petition pursuant to 28 U.S.C. § 2254. In the

district court, Myartt claimed that he was denied his Sixth

Amendment right to effective assistance of counsel on direct

appeal because Chesshir failed to competently argue that

the trial court erred when it: (1) denied his motion to

suppress and (2) failed to declare a mistrial when one of the

jurors did not agree with the verdict during polling. The

district court, applying a de novo standard of review,

concluded that Chesshir adequately challenged the denial

of the motion to suppress on appeal, and that Myartt had

procedurally defaulted on his argument about the juror disagreement. The district court granted a certificate of appealability with regard to Myartt’s challenge of Chesshir’s handling of the denial of the motion to suppress. 

II. Discussion

A. Standard of Review

Ordinarily, in a case where the habeas petition was filed

after the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, the

provisions of the AEDPA would govern our review, and we

would consider whether the Wisconsin Court of Appeals’

decision resulted from an “unreasonable application” of

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L. Ed. 2d 674 (1984) or an “unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” See, e.g., Roche v. Davis, 291 F.3d 473, 481 (7th

Cir. 2002). However, the AEDPA standards apply only to
No. 04-2115 5

claims that were “adjudicated on the merits in State court

proceedings.” 28 U.S.C. § 2254(d). In the instant case, the

Wisconsin Court of Appeals did not address Myartt’s

ineffective assistance claim, which is unsurprising because

Myartt’s pro se filing failed to develop the claim or discuss

relevant Sixth Amendment principles. In these circumstances, it is impossible to determine whether the state

court’s decision involved an unreasonable application of

Strickland. We agree with the district court that Myartt’s

ineffective assistance of counsel claim was not adjudicated

on the merits in any meaningful sense; consequently, we

apply the pre-AEDPA standard of review, which requires us

to “dispose of the matter as law and justice require.” Braun

v. Powell, 227 F.3d 908, 917 (7th Cir. 2000). 

B. Ineffective Assistance of Counsel

The sole issue is whether Chesshir’s arguments on direct

appeal regarding the trial court’s denial of Myartt’s motion

to suppress were so inadequate that Myartt’s Sixth Amendment right to effective assistance of counsel was violated. To

establish his ineffective assistance of counsel claim, Myartt

bears the heavy burden of showing that his attorney’s

performance fell below an objective standard of reasonableness and that he was prejudiced by the deficient performance. Strickland, 466 U.S. at 687-88. A failure to establish

either prong is fatal to an ineffective assistance of counsel

claim. Hough v. Anderson, 272 F.3d 878, 890 (7th Cir.

2001).

Our review of the state appellate brief that Chesshir filed

on Myartt’s behalf reveals that Chesshir made well-organized, cogent arguments on the Terry stop issue that easily

meet prevailing professional norms of appellate representation. As acknowledged by Myartt, Chesshir correctly identified the issue and accurately described the law governing

investigative stops by citing to Terry and relevant Wiscon-
6 No. 04-2115

sin Supreme Court precedent. Chesshir’s brief also displays

a strong command of the case’s factual background and an

appropriate emphasis on the portions of the description

from the police dispatch that did not exactly fit the description of Myartt at the time he was arrested. After reciting the

relevant law and facts, Chesshir made credible legal

arguments that fall within the wide range of competent

professional assistance. 

Myartt argues that Chesshir’s representation was deficient in that he did not adequately convey the striking discrepancies between the description of the robbery suspect

and Myartt’s appearance on the day he was arrested. This

argument is without merit for two reasons. First, Chesshir

actually did highlight the relevant discrepancies between

the victims’ description of the police suspect and Myartt’s

appearance when he was arrested. Specifically, Chesshir

noted that Myartt was wearing a leather Chicago Bulls

jacket and a black leather baseball hat, not a red nylon jacket

and a black knit cap. Chesshir also pointed out that the

police did not see a silver gun on Myartt as they approached

him and that the arresting officers did not mention that

Myartt had a grayish beard. Second, Myartt’s criticisms of

Chesshir’s brief are precisely the type of second-guessing

that Strickland prohibits. On this point, the following

passage from Strickland warrants repeating:

Judicial scrutiny of counsel’s performance must be highly

deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful,

to conclude that a particular act or omission of counsel

was unreasonable.

Strickland, 466 U.S. at 689. Although Chesshir’s attack on

the trial court’s denial of Myartt’s motion to suppress was

ultimately unavailing, we think that Chesshir did a fine job
No. 04-2115 7

in light of the facts and law that governed the issue, and we

decline Myartt’s invitation to second-guess his performance.

Because Myartt has failed to identify any deficiency in

Chesshir’s appellate advocacy, his claim fails to clear the

first hurdle of the Strickland test, and we have no occasion

to address the prejudice prong. 

III. Conclusion

For the reasons stated herein, we AFFIRM the decision of

the district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-21-05