United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued January 23, 2007

Decided February 8, 2007

Before

Hon. JOEL M. FLAUM, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

Hon. ANN CLAIRE WILLIAMS, Circuit Judge

No. 05-4528

DARRYL PINKINS,

Petitioner-Appellant,

v.

EDWARD BUSS,

Respondent-Appellee.

Appeal from the United States District

Court for the Northern District of

Indiana, South Bend Division.

No. 3:05-CV-134 AS

Allen Sharp,

Judge.

O R D E R

Indiana inmate Darryl Pinkins is serving a 65-year sentence for his role in

the gang rape of M.W. After unsuccessfully pursuing a direct appeal and state

postconviction petition, he petitioned the district court for a writ of habeas corpus. 

The district court denied relief, but this court granted a certificate of appealability

after concluding that Pinkins had “made a substantial showing of the denial of a

constitutional right to effective trial counsel.” Pinkins, though, procedurally

defaulted most of his theories of ineffective assistance, and he has failed to

demonstrate that the Indiana courts unreasonably applied clearly established

federal law in disposing of those he did not default. Thus we affirm the district

court’s denial of Pinkins’s petition.

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 05-4528 Page 2

For our purposes, we accept as true the factual findings of the Indiana courts. 

See 28 U.S.C. § 2254(e)(1). On December 7, 1989, at approximately 1:30 a.m., M.W.

was driving home from a friend’s house when her car was rear-ended at an

intersection in Hammond, Indiana. She exited her vehicle, as did the driver of the

other car, who approached M.W. and asked if she was all right. Before she could

answer, however, the other driver grabbed her arm. Two more men then grabbed

her from behind, dragged her to their car, and shoved her into the back seat. Before

being told, “Don’t look at us, bitch, or we’ll kill you,” she observed a total of five men

at the scene, and at some point she was given a pair of green coveralls and ordered

to cover her face. The vehicle then began moving while a man in the backseat

stripped her naked and raped her. The other four men also took turns raping her. 

The assault continued for about two hours before her assailants stole the rings off

her fingers and returned her to her car.

It was five months after the attack that M.W. first identified Pinkins as the

driver of the vehicle that rear-ended her. During an interview shortly after the

assault, M.W. had told investigators that she knew by his voice that the fourth man

who raped her was the driver of the other car, but she could give only vague

physical descriptions of her attackers and refused to look at a photograph array. 

On May 4, 1990, however, M.W. attended, on her own initiative, a pretrial hearing

in the case where Pinkins and at least one other man charged in connection with

the assault were present. M.W. saw Pinkins, who had been released pending trial,

enter the courtroom and immediately recognized him as the driver of the car that

struck her the night she was raped. After the hearing, she told a detective and the

deputy prosecutor that Pinkins was one of her attackers. She did not identify

anyone else at the pretrial hearing as an assailant.

Pinkins was tried in the Superior Court of Lake County, Indiana, on charges

of rape, criminal deviate conduct, and robbery. During the three-week jury trial the

state presented two pieces of direct evidence against Pinkins. First, M.W. testified

concerning the events of December 7, 1989, and identified Pinkins in court as the

driver of the vehicle that rear-ended her as well as the fourth man to rape her. 

M.W. also testified that she previously had recognized Pinkins when she voluntarily

attended a pretrial hearing and that prior to that time she had not viewed a

physical lineup or photographs of any suspects in her case. Second, an inmate who

had been incarcerated with Pinkins testified that Pinkins told him that he and two

friends had raped a woman while covering her head with green coveralls and that

he was not concerned about DNA tests because he did not ejaculate inside of her.

The state also presented circumstantial evidence connecting Pinkins to the

attack. Of particular significance, evidence showed that the police had traced the

coveralls given to M.W. to cover her face to Pinkins’s employer and established that

Pinkins and two of his co-workers were issued new coveralls four days after the
No. 05-4528 Page 3

assault. Evidence also established that Pinkins had approached co-defendant Barry

Jackson and his attorney during a pretrial hearing and told the lawyer that he did

not understand why Jackson had been arrested because Jackson was not with

Pinkins and the other men on the night of the assault. In addition, employees of

two adult entertainment venues testified as to Pinkins’s physical description and

typical attire, explaining that they were familiar with Pinkins because he was a

frequent customer.

The state also presented forensic evidence derived from two types of

testing—DNA and serology. The state’s expert described the difference between

DNA and serology testing, explaining that DNA testing is more “specific,” meaning

that the number of potential contributors to the sample could be narrowed to a very

few people, but that serology testing is more “sensitive,” meaning that testing could

be performed on a smaller sample of genetic material. She also explained that DNA

testing will yield a result only if the sample contains a nucleated cell, such as

sperm, but serology testing will yield a result from samples that do not contain a

nucleated cell, such as samples containing seminal fluid or saliva. According to the

expert, DNA testing performed on bodily fluid samples collected from M.W’s

clothing and vagina immediately following the attack disclosed three separate

genetic codes. One code matched M.W.’s genetic code; the other two codes were not

a match for any of the five suspects. Serology testing of the same samples, however,

revealed that blood serums with properties matching those of Pinkins’s blood type

were present in some of the samples.

The jury found Pinkins guilty on all counts. He was sentenced to 40 years in

prison for rape and to a consecutive 25 years for criminal deviate conduct. In

addition, he was sentenced to 10 years for robbery to be served concurrently with

his other sentences. Pinkins filed a notice of appeal, but his direct appeal was

stayed for twelve years while he pursued a postconviction petition.

Pinkins’s postconviction petition was denied by the trial court after several

evidentiary hearings. He appealed that ruling to the state appellate court. In a

proceeding that consolidated his direct appeal and his appeal of the trial court’s

denial of postconviction relief, Pinkins set forth five issues for review, but only the

two issues arising from his postconviction petition are relevant here. First, he

argued that the trial court erred when it declined to vacate his conviction or grant

him a new trial based upon a new round of DNA testing performed in 2001. That

testing was performed using a more advanced testing procedure than was available

at the time of Pinkins’s trial but yielded results that were basically the same as the

1991 results. Second, he argued that his trial counsel was ineffective because

counsel allegedly slept through portions of the trial, failed to object to the evidence

that Pinkins frequented strip clubs, and failed to suppress M.W.’s in-court
No. 05-4528 Page 4

identification of Pinkins. The appellate court affirmed, concluding that no

reversible error occurred. 

Pinkins petitioned the Indiana Supreme Court for transfer. In his supporting

brief he proposed five questions for review: whether the appellate court erred when

it concluded that Pinkins’s trial counsel was not ineffective for failing to object to

evidence that Pinkins frequented strip clubs; whether the appellate court erred

under state and federal law when it concluded that Pinkins’s trial counsel was not

ineffective for failing to object to M.W.’s identification of Pinkins as her assailant;

whether the appellate court’s determination that the 2001 DNA test results were

not favorable to Pinkins within the meaning of Indiana Code § 35-38-7-19 decided

an important question of law that should be decided by the state supreme court;

whether the appellate court erred when it held that the trial court did not commit

fundamental error under state law by admitting evidence that Pinkins frequented

strip clubs; and whether the appellate court erred when it held that prosecutors did

not commit misconduct by introducing the strip-club evidence. The Indiana

Supreme Court denied transfer.

Pinkins then filed his federal petition under 28 U.S.C. § 2254, raising three

claims for consideration by the district court. First, he claimed that he was denied

due process of law because the state presented false or misleading serology

evidence. Second, he claimed that he received ineffective assistance of appellate

counsel. Third, he claimed that he received ineffective assistance of trial counsel, in

that counsel allegedly slept during portions of the trial, failed to object to the

evidence that Pinkins frequented strip clubs, failed to object to M.W.’s identification

of Pinkins, failed to meaningfully challenge the state’s serology evidence, failed to

object to evidence concerning a dispute between a witness and Pinkins that

escalated into a threatening gesture, and failed to object to testimony from

Pinkins’s employer concerning his reputation for honesty and truthfulness. In a

very brief order, the district court denied Pinkins’s petition.

On appeal Pinkins has recast the content of his ineffective assistance of

counsel claim for a fourth time. He now contends that his trial counsel’s

performance was constitutionally deficient because he allegedly slept through

portions of the trial, failed to object to the evidence that Pinkins frequented strip

clubs, failed to challenge M.W.’s in-court identification of Pinkins, and failed to

meaningfully challenge the state’s serology evidence.

Federal-court review of Pinkins’s convictions is governed by the

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

federal court cannot grant relief under § 2254 to a state prisoner whose federal

claims have been adjudicated on the merits by the state courts unless the decision

“was contrary to, or involved an unreasonable application of, clearly established
No. 05-4528 Page 5

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 in the State court proceeding.” 28 U.S.C. § 2254(d); see Brown v. Payton,

544 U.S. 133, 141 (2005); Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006). We

look to the decision of the last state court to rule on the merits of the petitioner’s

claim: here, the opinion of the Court of Appeals of Indiana affirming the denial of

postconviction relief. See Garth v. Davis, 470 F.3d 702, 710 (7th Cir. 2006). The

district court’s order denying Pinkins’s petition under § 2254 is subject to de novo

review. See Charlton, 439 F.3d at 372.

Pinkins’s ineffective-assistance claim is governed by the principles

established in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a

defendant must show that his counsel’s performance fell below an objective

standard of reasonableness and that he was prejudiced as a result. Id. at 687-88. 

To establish prejudice, a defendant must show that but for counsel’s errors there is

a reasonable probability that the result of the trial would have been different. Id.

at 694. Federal courts do not apply the principles of Strickland directly to a claim

of ineffective assistance that has been adjudicated by the state courts; instead, the

role of the federal courts is limited to analyzing whether the state courts reasonably

applied federal law in concluding that trial counsel was not constitutionally

ineffective. Conner v. McBride, 375 F.3d 643, 657 (7th Cir. 2004).

As an initial matter we must consider whether Pinkins procedurally

defaulted two of the theories underlying his claim of ineffective assistance of trial

counsel. The state argues that when Pinkins petitioned the Indiana Supreme Court

to accept transfer of the appellate court’s decision, he failed to present his theory

that counsel was ineffective because he slept during portions of the trial. The state

also contends that Pinkins never presented at all to the Indiana courts his theory

that counsel was ineffective for failing to challenge the serology evidence. We agree.

To preserve a federal claim for collateral review, a state prisoner must take

the claim through one complete round of review in the state courts, including a

petition for discretionary review in the state supreme court if available, and must

fairly present the federal nature of his claim to the state courts. O’Sullivan v.

Boerckel, 526 U.S. 838, 845-48 (1999). Fair presentation requires that “both the

operative facts and the controlling legal principles” be submitted to the state courts,

Hough v. Anderson, 272 F.3d 878, 892 (7th Cir. 2001); see Wilson v. Briley, 243 F.3d

325, 327 (7th Cir. 2001), so that the state courts have “a meaningful opportunity to

pass upon the substance of the claims,” Chambers v. McCaughtry, 264 F.3d 732,

737-38 (7th Cir. 2001). A state defendant who “fails to present his claims in a

petition for discretionary review to a state court of last resort” has not properly

presented his claims to the state courts. O’Sullivan, 526 U.S. at 848; see Hough,
No. 05-4528 Page 6

272 F.3d at 892. This failure results in a procedural default that precludes federal

review. Hough, 272 F.3d at 892; Wilson, 243 F.3d at 327.

In this case Pinkins did not present through one entire round of state review

his theories that counsel was ineffective for allegedly sleeping during trial and for

failing to meaningfully challenge the state’s serology evidence. The theory that

counsel slept through portions of the trial was never presented in his petition for

transfer, and the theory that trial counsel should have done a better job of

challenging the serology evidence was never presented at all. Pinkins maintains

that he alerted the Indiana Supreme Court to the facts of these two theories

because he included citations in his petition to transfer that referenced his brief to

the state appellate court and the response brief filed by the state in that court, but

those references concerned only his arguments that counsel was ineffective for

failing to object to the pre-trial identification procedure and for failing to object to

evidence concerning his frequenting strip clubs. Consequently, he did not fairly

present these theories to the Indiana courts. Pinkins also argues that a procedural

default may be set aside if caused by “attorney error that constitutes ineffective

assistance of counsel.” But Pinkins had no federal constitutional right to counsel in

pursuing his state postconviction petition and subsequent appeals, so any error by

counsel that led to a default of Pinkins’s theories in state court cannot constitute

cause to excuse default in the federal collateral proceedings. See Coleman v.

Thompson, 501 U.S. 722, 756-57 (1991). Accordingly, Pinkins failed to exhaust his

state-court remedies, resulting in procedural default of these theories.

As to the two theories that we may review, Pinkins first contends that trial

counsel was ineffective because he failed to object to what Pinkins characterizes as

“bad character” evidence. Pinkins identifies testimony from four state witnesses

that, he says, concerned his “proclivity to spend time at topless bars,” as well as

testimony that counsel elicited from him which, he says, portrayed him as a racist

and liar. According to Pinkins, this evidence prejudiced him by “painting him as

some sort of mad sex-fiend.”

A claim of ineffective assistance based on counsel’s failure to object is “tied to

the admissibility of the underlying evidence.” Hough, 272 F.3d at 898. Questions

concerning the admissibility of evidence are generally governed by state law. 

Milone v. Camp, 22 F.3d 693, 702 (7th Cir. 1994). If evidence admitted without

objection was admissible, then a defendant’s argument fails both prongs of the

Strickland test. Hough, 272 F.3d at 898. A federal court will rarely find ineffective

assistance of counsel “based upon a trial attorney’s failure to make an objection that

would have been overruled under the then-prevailing law.” Lucas v. O’Dea, 179

F.3d 412, 420 (6th Cir. 1999).
No. 05-4528 Page 7

With respect to this theory, the Court of Appeals of Indiana determined that

any objection to the “bad character” evidence would have been overruled. The court

explained that the evidence would have been admitted over counsel’s objection

because it “did not amount to uncharged crimes or prior bad acts” that might have

rendered the evidence inadmissible. Pinkins v. Indiana, 799 N.E.2d 1079, 1095

(Ind. Ct. App. 2003). Pinkins does not challenge this determination.

Pinkins next contends that trial counsel was ineffective because he failed to

object to M.W.’s in-court identification. He says that M.W.’s encounter with him at

the pretrial hearing five months after she was attacked constituted an overly

suggestive out-of-court identification that “irreparably tainted” her in-court

identification. Given that “M.W.’s identification of Pinkins as one of her attackers

was crucial for the state’s case,” Pinkins insists, “the trial judge should have been

asked to rule on its admissibility.”

Unlike Pinkins’s theory that counsel was ineffective for failing to object to the

“bad character” evidence, Pinkins’s theory that the trial court wrongfully allowed

into evidence M.W.’s in-court identification presents a federal question because it

implicates due process. A state prisoner is entitled to collateral relief if, in

answering the federal question, the state court unreasonably applied clearly

established federal law. Williams v. Taylor, 529 U.S. 362, 367 (2000); Badelle v.

Correll, 452 F.3d 648, 654 (7th Cir. 2006). An unreasonable application of federal

law “occurs when the state court correctly identifies the governing legal rule but

applies it unreasonably to the facts” of a petitioner’s case. Badelle, 452 F.3d at 654. 

An unreasonable application of governing federal law is not merely an erroneous

decision, but must be so erroneous as to be objectively unreasonable. Id.

A petitioner claiming that an in-court identification violated due process

must demonstrate that an unduly suggestive out-of-court procedure tainted the

in-court identification. Gregory-Bey v. Hanks, 332 F.3d 1036, 1045 (7th Cir. 2003). 

Once that burden is met, “the court must then determine, under the ‘totality of the

circumstances,’ whether the identification was sufficiently reliable to prevent

misidentification.” Id. Reliability is based on factors that include the opportunity

of the witness to view the criminal at the time of the crime, the witness’s degree of

attention, the accuracy of her prior description of the criminal, the level of certainty

demonstrated at the confrontation, and the time between the crime and the

confrontation. Neil v. Biggers, 409 U.S. 188, 199-200 (1972); Gregory-Bey, 332 F.3d

at 1045.

In this case, the Indiana appellate court held that M.W.’s in-court

identification of Pinkins was not tainted because M.W.’s identification of Pinkins at

the pretrial hearing provided an adequate, independent basis for her in-court

identification that was not unduly suggestive or conducive to irreparable mistaken
No. 05-4528 Page 8

identification. Citing Logan v. State, 729 N.E.2d 125, 131 (Ind. 2000), the court

explained:

When determining the existence of an independent basis, the following

circumstances should be considered:

The amount of time the witness was in the presence of the

perpetrator and the amount of attention the witness had focused on

him, the distance between the two and the lighting conditions at the

time, the witness’s capacity for observation and opportunity to perceive

particular characteristics of the perpetrator, the lapse of time between

the crime and the subsequent identification.

The court then determined that:

Here, the evidence revealed, and the post-conviction court found that:

At the time she was abducted, M.W. saw [Pinkins] for

approximately five seconds at close range during their struggle. She

then watched [Pinkins] get into the passenger side of her car as she

was being dragged back to her assailant’s car. Moreover, M.W.

observed [Pinkins] under the light of the bright beam headlights of the

car he had been driving, in an area illuminated by streetlights, and a

nearby traffic light.

M.W. had also identified Pinkins as one of the perpetrators five

months after the attack in a situation that was not unduly suggestive

or conducive to irreparable mistaken identification. Therefore, this

prior identification demonstrates that M.W. had an independent basis

to recognize Pinkins as one of her attackers . . . . As a result, an

objection to the in-court identification would not have been sustained,

and Pinkins’s trial counsel was not ineffective for failing to object.

Pinkins, 799 N.E.2d at 1095. This analysis correctly identifies the governing legal

rule even though no federal case is mentioned directly. See Early v. Packer, 537

U.S. 3, 8 (2002). Moreover, it is not objectively unreasonable.

Pinkins’s argument only briefly addresses the state appellate court’s

analysis. He contends that in reaching its decision the appellate court failed to

consider evidence that shortly after the attack, but before the pretrial hearing,

M.W. had been asked to view photographs of the suspects. This argument is

without merit, however, because M.W. refused to look at the photographs,

rendering them wholly irrelevant to her later in-court identification. The
No. 05-4528 Page 9

remainder of Pinkins’s brief merely rehashes arguments he presented to the

Indiana courts; he makes no effort to explain how the state appellate court’s

analysis might be objectively unreasonable.

For the foregoing reasons, we AFFIRM the district court’s judgment denying

Pinkins’s petition for habeas corpus.