                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-2115
LARRY W. MYARTT,
                                         Petitioner-Appellant,
                              v.

MATTHEW J. FRANK, Secretary,
                                         Respondent-Appellee.

                        ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
          No. 02 C 896—William C. Griesbach, Judge.
                        ____________
  ARGUED DECEMBER 7, 2004—DECIDED JANUARY 21, 2005
                   ____________



  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 two-
day 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 co-
owners 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 clean-
ing 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 an-
nounced 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 base-
ball 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 evi-
dence 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 ap-
pearance 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 pro-
geny. The judge noted that Myartt matched the race, age,
and height of the suspect, and that he was at least a “par-
tial 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 re-
jected the Fourth Amendment challenge, concluding that
the officers had reasonable suspicion that Myartt had robbed
the dry cleaning store. The Wisconsin Supreme Court de-
nied 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 ar-
gued 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 dis-
agreement. The district court granted a certificate of appeal-
ability with regard to Myartt’s challenge of Chesshir’s han-
dling 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 circum-
stances, 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 Amend-
ment 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 reasonable-
ness and that he was prejudiced by the deficient perfor-
mance. 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-orga-
nized, cogent arguments on the Terry stop issue that easily
meet prevailing professional norms of appellate representa-
tion. As acknowledged by Myartt, Chesshir correctly identi-
fied 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 descrip-
tion 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 defi-
cient in that he did not adequately convey the striking dis-
crepancies 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 sec-
    ond-guess counsel’s assistance after conviction or ad-
    verse sentence, and it is all too easy for a court, examin-
    ing 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
