229 F.3d 649 (7th Cir. 2000)
Timothy Cossel, Petitioner-Appellant,v.Charles Miller, Respondent-Appellee.
No. 98-1355
In the  United States Court of Appeals  For the Seventh Circuit
Argued July 12, 2000Decided October 12, 2000

Appeal from the United States District Court  for the Southern District of Indiana, Indianapolis Division.  No. EV 97-87-C-B/H--Sarah Evans Barker, Chief Judge.
Before Ripple, Rovner, and Williams, Circuit Judges.
Williams, Circuit Judge.


1
Timothy Cossel filed  this habeas corpus petition challenging his 1989  state convictions for rape, criminal confinement,  criminal deviate conduct, battery, and burglary,  in part on the ground that his trial counsel  rendered constitutionally ineffective assistance  of counsel by failing to properly object to  testimony by the victim relating to her  identification of him as her attacker. In state  post-conviction proceedings, the state courts  rejected this claim, reasoning that the victim  had an independent basis for her in-court  identification of Cossel, which eliminates any  argument that trial counsel could have been  ineffective in failing to object to her  testimony. The federal district court dismissed  Cossel's habeas corpus petition with prejudice on  the ground that the Indiana Court of Appeals did  not misapply federal law. Because we cannot  agree, we reverse.


2
* State court findings of fact are presumed  correct unless the petitioner rebuts the  presumption with "clear and convincing" evidence.  28 U.S.C. sec. 2254(e)(1). Cossel does not  challenge the state court findings regarding the  facts of the crime, so they control. The state  appellate court found as follows


3
On April 25, 1983, shortly after 10:15 p.m.,  K.D. put her child to bed and went to bed  herself. She was awakened shortly thereafter when  a man removed her covers, pulled up her nightgown  and jumped on her, putting a knife to her back.  The attacker then threatened to kill both her and  the child if she resisted.


4
The attacker attempted to engage in anal sex,  which was extremely painful for K.D. The man then  warned her not to look at his face, turned her  over and covered her face with a pillow. He then  raped K.D. He then turned her back over, jabbed  her in the back with the knife and told her if  she reported the assault that he would kill her  and the child. The man then left.


5
Cossel v. State, 675 N.E.2d 355, 358 (Ind. Ct.  App. 1996) (quoting earlier unpublished order  affirming Cossel's conviction).


6
Although the police originally suspected another  man, they eventually turned their attention to  Cossel. In July 1984, police officer Joe Davis  arranged for K.D. to view a photographic array  that included a picture of Cossel.1 When K.D.  was unable to identify any of the people in the  photographs as the attacker, Officer Davis  singled out Cossel's picture, identified the  photo as a picture of Tim Cossel, and showed it  to K.D. Again, K.D. did not recognize Cossel.  Cossel's picture was the only one K.D. remembered  Officer Davis singling out to show her.


7
Almost two years later, in May 1986, Officer  Davis had K.D. accompany him to Owensboro,  Kentucky, to view a lineup. K.D. testified that  Officer Davis told her the reason for this lineup  was that Cossel was in Owensboro. K.D. was under  the impression that Cossel would be in the lineup  and she was to see if she could recognize him.  K.D.'s husband had told her that he believed  Cossel was the attacker, and K.D. testified at  trial that she was under the impression that  Officer Davis believed that as well. K.D. did  identify Cossel in the lineup, but she did not  recognize his voice. Based on K.D.'s  identification, the state charged Cossel with  rape, criminal confinement, criminal deviate  conduct, battery, and burglary.


8
Prior to trial, defense counsel did not move to  suppress or otherwise limit trial testimony  relating to K.D.'s identification of Cossel as  her attacker, despite having notice of the  circumstances surrounding that identification. At  trial, therefore, the state elicited testimony  from K.D. and Officer Davis regarding the photo  array, the one-photograph show-up, and the  Owensboro lineup. K.D. also identified Cossel in  court during the trial. Counsel failed to make a  contemporaneous objection to the admission of  either the out-of-court identification procedures  or K.D.'s in-court identification. Instead,  counsel waited to object until the close of  K.D.'s testimony and then later moved to dismiss  at the close of the state's case-in-chief. The  trial court overruled the objection and denied  the motion. In denying the motion to dismiss, the  court explained


9
This court was extremely careful in listening to  the identification evidence because the police  officer involved, Officer Davis, has repeatedly  and consistently ruined cases by impermissibley  [sic] suggestive conduct. I do think in this case the evidence is sufficient for several reasons  that this case need not be thrown out because of  an impermissibley [sic] suggestive i.d., lineup.  Therefore, I'll let the matter go and if there's  a conviction I'm sure that matter will be  carefully looked at by the Court of Appeals.


10
In reaching this conclusion, the trial court  was presumably relying on the strength of K.D.'s  testimony regarding what she was able to see the  night of the attack and why, apart from the out-  of-court identifications, she believed Cossel was  her attacker. Her testimony in this regard was  later summarized by the Indiana Court of Appeals


11
K.D. testified that although the house was  "shadowy," she could clearly see because there  was light from the moon and a street light  shining into the house. K.D. observed Cossel's  face for approximately ten seconds when she was  being turned from her stomach to her back. While  K.D. was lying on her back, she was able to view: Cossel's chin and mouth area. Because Cossel was  on top of K.D., the distance between the two  parties was not great. After seeing Cossel's  face, K.D. "felt like [she] knew this person" and  that he knew K.D. K.D. testified that she had  seen Cossel three months earlier when she and her  husband had purchased a vacuum cleaner.


12
Cossel, 675 N.E.2d at 361 (citations omitted).


13
The only other evidence linking Cossel to  K.D.'s rape were the results of a serological  analysis, which concluded that K.D.'s attacker  was in a class of at least 32% of the population  who are "non-secreters," and possibly an even  larger segment of the population that includes  "secreters" whose serological samples have been  "diluted out." Cossel is a non-secreter. But the  DNA tests were inconclusive, there were no  fingerprint matches, and none of the hair strands  taken from K.D.'s rape kit could have come from  Cossel. There was, however, one strand of pubic  hair that matched neither K.D. nor Cossel.  Finally, a footprint outside of K.D.'s window was  identified as that of the attacker. The print was  from a lug-soled work boot and measured 13 inches  in length. Cossel did not own any shoes or boots  matching the footprint, and when the sole of his  shoe was measured in court, it was only 12 inches  long.2 On the basis of the evidence against  him, Cossel was found guilty by a jury and  sentenced by the court to 148 years'  imprisonment.


14
On direct appeal, Cossel was represented by  trial counsel. Counsel appealed the district  court's admission of K.D.'s identification  testimony, and the state conceded that the out-  of-court identification was impermissibly  suggestive. The state argued, however, that an  independent basis for K.D.'s in-court  identification existed because she saw her  attacker for ten seconds during the rape. The  Indiana Court of Appeals declined to address the  merits of this dispute because Cossel's counsel  had waived the issue by not making a  contemporaneous objection.


15
Cossel then filed a petition for state post-  conviction relief, based in part on his claim  that counsel was constitutionally ineffective for  not objecting contemporaneously to K.D.'s  identification of Cossel. The state post-  conviction judge, who also had presided over  Cossel's trial, ordered an evidentiary hearing at  which Cossel's trial counsel testified. Counsel,  who by that time had been suspended from the  practice of law for reasons unrelated to Cossel's  case, testified that he knew before trial that  there were problems with the pretrial  identifications being unduly suggestive. Counsel  also stated that he thought the objection he made  at the close of K.D.'s testimony would preserve  the issue for appeal. Finally, when asked whether  it was part of his strategy to withhold his  objection to the identification testimony,  counsel responded, "No, it was not a strategy  move." Following the hearing, the state court  denied Cossel's petition. Cossel appealed, and  the Indiana Court of Appeals found that any error  in admitting evidence of the impermissibly  suggestive lineup identification was harmless  because the in-court identification had  sufficient independent support, and thus Cossel's  counsel was not ineffective. It is unclear from  the present record whether Cossel filed a  petition for transfer to the Indiana Supreme  Court.


16
Cossel next filed a petition for a writ of  habeas corpus in the United States District Court  for the Southern District of Indiana. The  district court dismissed the petition with  prejudice, holding, in relevant part, that the  Indiana Court of Appeals's application of  Strickland v. Washington, 466 U.S. 668 (1984), to  Cossel's ineffective assistance of counsel claims  was a reasonable application of federal law.  Cossel appealed and this court issued a  certificate of appealability for Cossel's claim  of ineffective assistance of counsel as it  pertained to trial counsel's failure to properly  object to the victim's identification of Cossel.

II

17
Before coming to the merits of Cossel's appeal,  we must address the state's argument, made for  the first time on appeal, that Cossel has  procedurally defaulted the ineffective assistance  of counsel claim he advances in this court by  failing to present the claim to the Indiana  Supreme Court. See O'Sullivan v. Boerckel, 526  U.S. 838, 844-45 (1999) (holding that petitioners  must invoke one complete round of a state's  established appellate review process). This is a  somewhat remarkable argument, given that, before  the district court, the state specifically noted  that, in contrast to many of Cossel's ineffective  assistance of counsel claims, the one under  consideration in this appeal was adequately  presented to the state courts and had been  preserved for federal review.3 A litigant that  fails to present an argument to the district  court cannot rely on that argument in the court  of appeals, and this rule certainly encompasses  a litigant that adopts a position on appeal that  is contrary to its position in the district  court. Thus, by failing to make its procedural  default argument to the district court, the state  has waived the argument. See Hernandez v. Cowan,  200 F.3d 995, 997 (7th Cir. 2000); Henderson v.  Thieret, 859 F.2d 492, 497-98 (7th Cir. 1988).


18
In any event, the state has provided no support  for its position that Cossel failed to present  the claim now on appeal to the Indiana Supreme  Court. The state simply asserts that "Cossel's  failure to present the ineffectiveness claim in  his petition to transfer to the Indiana Supreme  Court preclude[s] this [c]ourt from addressing  those claims on federal collateral review," and  then cites to two docket sheets reprinted in the  appendix to its brief. We cannot tell what courts  these docket sheets are from, or where they make  any reference to the claims raised in or omitted  from Cossel's petition for transfer to the  Indiana Supreme Court. Indeed, we can find no  copy of Cossel's petition for transfer in the  record, thus we have no way of verifying the  state's assertion.

III

19
Because Cossel disputes only the Indiana Court  of Appeals's legal conclusion that K.D.'s in-  court identification was independently supported  by her ten-second viewing of her assailant during  the attack, 28 U.S.C. sec. 2254(d)(1) governs our  review of Cossel's ineffective assistance of  counsel claim. Under sec. 2254(d)(1), a  petitioner cannot obtain habeas corpus relief on  a claim that the state courts have addressed on  the merits unless the decision handed down by the  last state court to consider the claim is  "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); see Williams  v. Taylor, 120 S. Ct. 1495, 1523 (2000). A state  court decision is "contrary to" clearly  established law "if the state court arrives at a  conclusion opposite to that reached by [the  Supreme] Court on a question of law or if the  state court decides a case differently than [the  Supreme] Court has on a set of materially  indistinguishable facts." Williams, 120 S. Ct. at  1523. A state court decision is an "unreasonable  application of" clearly established law "if the  state court identifies the correct governing  legal principle from [the Supreme] Court's  decisions but unreasonably applies that principle  to the facts of the prisoner's case." Id.


20
In order to establish a constitutional basis  for habeas corpus relief, Cossel must first show  that his counsel's performance fell below an  objective standard of reasonableness. See  Strickland v. Washington, supra, 466 U.S. at 687-  88. There was no physical evidence linking Cossel  to the attack on K.D.; thus, K.D.'s  identification of Cossel was the pivotal evidence  in the case. Nevertheless, Cossel's counsel did  not move to suppress any evidence regarding the  out-of-court identification procedures, nor did  he argue that any in-court identification that  K.D. might make would necessarily be tainted by  the suggestive out-of-court procedures. Once the  trial was underway, counsel did not object to  either the evidence about the out-of-court  identification procedures or K.D.'s in-court  identification until after K.D. had finished her  testimony. As a result, Cossel was denied both a  pre-trial ruling and a contemporaneous ruling on  the admissibility of the identification  testimony. Counsel's inaction also led the  Indiana courts to deem the issue waived.


21
This court confronted similar conduct in  Rodriguez v. Young, 906 F.2d 1153, 1161 (7th Cir.  1990), in which counsel did not move to suppress  a witness's in-court and out-of-court  identification testimony, although police had  presented her with an apparently unduly  suggestive show-up. In Rodriguez, this court  concluded that counsel's failure to file a  suppression motion "was not a decision that might  be considered sound trial strategy, or the result  of reasonable professional judgment. It was  objectively unreasonable and outside the wide  range of professionally competent assistance."  Id. (internal quotation marks and citations  omitted). Similarly, counsel's actions in not  moving to suppress or object to K.D.'s  identification testimony fell below Strickland's  objective reasonableness standard.


22
Cossel must next show that there is a  reasonable probability that, but for his trial  counsel's errors, the result of his trial would  have been different. Strickland, 466 U.S. at 694.  Such a probability exists if counsel's errors  undermine confidence in the jury's verdict. Id.  Because K.D.'s identification testimony was the  primary and most compelling evidence introduced  against Cossel at trial, whether his trial  counsel's failure to object to K.D.'s  identification testimony was prejudicial turns on  whether properly made objections to this  testimony should have been sustained.


23
A defendant has a due process right not to be  identified prior to trial in a manner that is  "unnecessarily suggestive and conducive to  irreparable mistaken identification." Stovall v.  Denno, 388 U.S. 293, 301-02 (1967). As early as  Cossel's direct appeal, the state conceded that  the single-photograph show-up and Owensboro  lineup were indeed "unnecessarily suggestive" and  conducive to misidentification. Therefore, K.D.'s  testimony regarding these out-of-court  identifications should have been suppressed. This  conclusion does not resolve whether all of K.D.'s  identification testimony should have been  suppressed, however, as K.D. also identified  Cossel in court, and in-court identifications are  sometimes admissible despite a flawed pre-trial  identification.


24
An in-court identification that follows an  impermissibly suggestive pre-trial identification  is admissible if under the "totality of the  circumstances" the in-court identification was  reliable. United States v. Duprey, 895 F.2d 303,  307 (7th Cir. 1989); see also Simmons v. United  States, 390 U.S. 377, 384 (1968). In determining  whether an identification is reliable despite  suggestive pre-trial identification procedures,  courts look to the "Biggers factors": (1) the  opportunity of the witness to view the criminal  at the time of the crime, (2) the witness's  degree of attention at the time of the crime, (3)  the accuracy of the witness's pre-identification  description of the criminal, (4) the level of  certainty demonstrated by the witness at the time  of the identification, and (5) the length of time  between the crime and the identification. United  States v. Newman, 144 F.3d 531, 536 (7th Cir.  1998); see also Manson v. Brathwaite, 432 U.S.  98, 114 (1977); Neil v. Biggers, 409 U.S. 188,  199-200 (1972). When the suggestiveness of the  out-of-court identification has been conceded,  the government bears the burden of proving by  clear and convincing evidence that the in-court  identification was based upon observations of the  suspect other than at the prior, illegal  identification, or, alternatively, of proving  that the error complained of was harmless beyond  a reasonable doubt. United States v. Wisniewski,  741 F.2d 138, 143 (7th Cir. 1984) (citing United  States v. Wade, 388 U.S. 218, 240 (1967), and  Chapman v. California, 386 U.S. 18, 24 (1967)).  The state has consistently argued, and the  Indiana and federal courts have consistently  agreed, that, using the totality of the  circumstances analysis set forth in Biggers and  its progeny, K.D.'s in-court identification of  Cossel was independently reliable.


25
But this conclusion is unsound. True, there is  a plausible argument that the circumstances  surrounding K.D.'s identification satisfy the  first two of the five Biggers factors. Cossel  concedes that K.D. had a ten-second window in  which to view her assailant by the light of the  moon and street light. K.D. was also able to view  her assailant from a very close distance and,  although Cossel disputes this, one can presume  she viewed him with the level of attention likely  from the victim of such a crime. See Biggers, 409  U.S. at 201 (rape victim giving identification  testimony "was no casual observer, but rather the  victim of one of the most personally humiliating  of all crimes").


26
However significant these two factors may be on  their own, they are completely undermined by two  of the remaining three factors.4 First and  perhaps foremost, Cossel does not fit the pre-  identification description K.D. provided of her  attacker. In testimony before a grand jury in  March 1984, K.D. described a man slightly smaller  than her husband and definitely smaller than  Cossel. She stated that the attacker was no  taller than six feet and weighed between 140 and  150 pounds. In fact, K.D. stated that she  initially mistook the assailant for her husband,  who is six feet tall and weighed 160 pounds. K.D.  also stated that the attacker could not possibly  have been as large as a man she knew who was 6'3"  tall and weighed between 220 and 230 pounds.  Cossel is 6'3" tall and weighed between 215 and  220 pounds at the time of the attack. Moreover,  when first presented with a picture of Cossel in  the photo array over a year after the attack,  K.D. did not recognize him. Even after he was  singled out and presented to her as the police's  favored suspect, K.D. still did not recognize  him. K.D. did eventually single out Cossel, in  the lineup in Owensboro three years after the  attack, but even then, she did not recognize his  voice.


27
Furthermore, an extraordinarily long period of  time elapsed between the attack and K.D.'s  identification of Cossel. The attack occurred in  April 1983. K.D. did not recognize Cossel until  three years later, in the Owensboro lineup. The  in-court identification did not occur until six  years after the attack. Yet, in Biggers the  Supreme Court observed that a lapse of seven  months between the rape and the confrontation  "would be a seriously negative factor in most  cases." 409 U.S. at 201. The Court felt that the  seven-month time lapse nevertheless was  outweighed by the fact that the defendant was not  included in any of the previous photo arrays or  show-ups, and the victim had not previously  identified anyone else from the photo arrays or  at the show-ups. Id. The same is not true here.  A delay over ten times longer than that the  Supreme Court called "problematic" in Biggers  preceded K.D.'s in-court identification of  Cossel. Moreover, during that delay K.D. twice  failed to identify Cossel as the assailant, even  when he was presented to her as the police's  favored suspect.


28
In light of the totality of the circumstances  surrounding K.D.'s in-court identification of  Cossel as her attacker, we are of the opinion  that K.D.'s in-court identification lacks  sufficient independent reliability to be  admissible. The unduly suggestive pre-trial  identification procedures used by the police  irreparably tainted that and all other  identifications made by K.D. Moreover, the  circumstances surrounding K.D.'s in-court  identification so clearly compel our conclusion  in this regard that the Indiana Court of  Appeals's decision to the contrary must be  considered an unreasonable application of Biggers  and the other Supreme Court precedents bearing on  this issue. As such, and because the  reasonableness of the Indiana Court of Appeals's  decision on Cossel's ineffective assistance of  counsel claim depends on its Biggers analysis, we  conclude that the decision by the Indiana Court  of Appeals to reject Cossel's ineffective  assistance of counsel claim was an unreasonable  application of clearly established federal law.  Accordingly, Cossel has satisfied the  requirements for habeas corpus relief under 28  U.S.C. sec. 2254(d)(1).

IV

29
For the foregoing reasons, the judgment of the  district court is Reversed and the case is Remanded  to the district court with instructions to grant  Cossel a writ of habeas corpus unless the state  retries him within 120 days.



Notes:


1
 The state post-conviction trial court and the  Indiana Appellate Court assert that this photo  array took place in July 1984. Cossel states that  it took place in July 1985, and K.D., in her  testimony at trial, also stated that it took  place in July 1985. When questioned at trial,  Officer Davis testified that he had no  recollection of the photo array or when it might  have taken place.


2
 The state also elicited testimony from two other  sexual assault victims who claimed that Cossel  was the person who had attacked them (charges in  both cases had been dropped). Both were allowed  to testify, over counsel's objection, to the  details of their sexual assaults. An Indiana rule  allowed their testimony to be admitted against  Cossel on the theory that it showed Cossel had a  "depraved sexual instinct." In 1992, the Indiana  Supreme Court rejected this rule on the ground  that it allowed overly-prejudicial evidence to be  admitted, and in its stead adopted Fed. R. Evid.  404(b). Lannan v. State, 600 N.E.2d 1334, 1338-39  (Ind. 1992).


3
 Moreover, when the state initially briefed this  appeal, in response to Cossel's pro se brief, the  state argued only that his claim failed on the  merits; it made no mention of procedural default.  The state (represented by the same lawyer who  wrote the initial appellate brief) did not assert  that Cossel had procedurally defaulted his claim  until this court appointed counsel for Cossel,  ordered the parties to rebrief the appeal, and  set the case for oral argument.


4
 The fourth Biggers factor--the level of certainty  demonstrated by the witness at the time of the  identification--has little relevance here, where  the level of certainty a witness demonstrates is  just as likely to be a product of a prior unduly  suggestive identification as it is to be a  product of an independent recollection of the  crime. See Rodriguez, 906 F.2d at 1163  (expressing skepticism about the significance of  witness certainty in such a situation). Thus,  although K.D. demonstrated no uncertainty at  trial in identifying Cossel as her attacker, that  fact must be considered in light of the  suggestive identifications she participated in  prior to trial, as well as the level of  uncertainty she expressed at those  identifications. For these reasons, the fourth  Biggers factor does not lend support to any  particular conclusion regarding the independence  of K.D.'s in-court identification.


