In the
United States Court of Appeals
For the Seventh Circuit

No. 97-1881

Sherman Howard,

Petitioner-Appellant,

v.

Richard Gramley,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 94 C 1246--Ruben Castillo, Judge.


Argued November 10, 1999--Decided August 23, 2000



      Before Posner, Rovner, and Diane P. Wood, Circuit
Judges.

      Diane P. Wood, Circuit Judge. Sherman Howard was
convicted in 1989 of sexually abusing his
daughter when she was a toddler. After appealing
through the Illinois state court system and
seeking post-conviction relief in Illinois’s
courts, he filed this habeas corpus petition. He
contends that his appellate counsel was
constitutionally defective in her selection of
issues to appeal, and he argues that the district
court abused its discretion by refusing to
appoint counsel to represent him in these
proceedings. The district court rejected Howard’s
arguments, concluding that his counsel’s
performance was inadequate, but that he suffered
no prejudice as a result. We agree that Howard
has not shown prejudice, so we affirm.
I

      Tamika Howard was born in 1981 into an
extraordinarily turbulent and traumatic home. Her
mother was addicted to drugs and frequently left
the home. During her mother’s absences, Tamika
was occasionally alone with her father, Sherman,
and sometimes stayed with her aunt, Linda
Fletcher. Between April 1982 and May 1983, Tamika
lived with her aunt, and Howard visited her on
weekends. During that period, Fletcher noticed
swelling and a discharge near Tamika’s genital
area. Concerned, Fletcher starting asking
questions. Tamika’s response left no doubt in her
aunt’s mind that her father had been sexually
abusing her. Tamika (using childish language)
described to Fletcher how Howard would come into
her room, expose himself, undress her, and
attempt to have intercourse with her. Moreover,
he had her perform oral sex on him and fondled
her genitals. Finally, Fletcher says that Tamika
told her that Howard would give her strange pink
and yellow pills and allow her to drink beer,
though Fletcher admitted that she never smelled
alcohol on Tamika’s breath during Howard’s
visits.

      Fletcher tried to take Tamika to a doctor, but
she was initially unsuccessful. Medical personnel
told her that because she was not the child’s
legal guardian, she could not use public
emergency services; private help was not
feasible, because she had no means of paying for
it. Finally, she took Tamika to Dr. Simon Rosen
and represented herself as Tamika’s mother. Dr.
Rosen examined Tamika and found that her hymen
was not intact. There was an inquiry by the
Illinois Department of Children and Family
Services (DCFS), but no criminal proceedings were
instituted at that point. Later, Howard and
Tamika’s mother reconciled, at which time Tamika
left Fletcher’s care and again spent the bulk of
her time with her parents.

      According to Fletcher and Tamika, there was
substantial drug use and ongoing sexual abuse in
Tamika’s home until December 1986, when Tamika’s
mother gave birth to Tamika’s little sister. At
this point, the details of Tamika’s life become
sketchy, but it appears that Fletcher lost track
of both Tamika and Howard until February 1987,
when she found Tamika living with a friend of her
mother. Fletcher took Tamika back to her home in
Hammond, Indiana. At this point, Fletcher began
seeking legal guardianship of Tamika. After
attempting to enlist the aid of the Indiana child
protection authorities, Fletcher moved Tamika
back to Illinois in June 1987, contacted a child
abuse hotline, and took her to Cook County
Hospital, where another examining physician, Dr.
Shetty, examined her on June 10, 1987, and again
found that the hymen was not intact. Five months
later, Fletcher once more took Tamika to Cook
County Hospital (her efforts to obtain the
guardianship having stalled as a result of
procedural missteps). This time, the examining
physician, Dr. Constance Blade-Schlessinger,
found no hymen damage, nor any neovascularization
(which, if present, would have signaled
irritation or inflammation that could have
occurred from sexual contact or other disruptive
causes such as an infection).
      Despite her observation of the intact hymen,
Dr. Blade-Schlessinger concluded that Tamika had
been sexually abused. (She explained that in
incestuous situations, the abuser often refrains
from actions that would be forceful or painful,
and so the injuries normally associated with
forcible rape are often not present.) In 1989,
Howard was charged with two counts of aggravated
criminal sexual assault in conjunction with his
abuse of Tamika. At trial, Tamika and Fletcher
testified to the course of events described
earlier, while Dr. Blade-Schlessinger offered her
expert opinion regarding Howard’s abuse of
Tamika. She based her conclusion that Tamika had
suffered abuse on the observations of three other
doctors--the two who had previously found hymen
damage, as well as a psychiatrist who had been
working with Tamika during 1987. When asked to
reconcile that conclusion with her own
examination that indicated no hymen damage, Dr.
Blade-Schlessinger said that she believed that
Tamika’s hymen may have regenerated itself. She
asserted that "when children are removed from
situations where they have been sexually abused,
they do heal, that there is a constriction
process whereby the hymen begins to close down to
the normal size associated with that aged child."
When questioned, she said that this phenomenon
was "well documented in the literature," but that
studies had not yet adequately shown how long the
healing process took. Her own estimate was that
two or three months was typical. Finally, she
cited to an article that had appeared in
Pediatrics magazine shortly before the trial (but
well after her examination of Tamika). That
article detailed a study of sexually abused
children whose hymenal injuries had repaired
themselves. See M.A. Finkel, "Anogenital Trauma
in Sexually Abused Children," 84 Pediatrics 317
(1989). Howard objected to the "accuracy and
reliability" of this testimony. The Illinois
trial judge initially sustained an objection to
the foundation for her reference to the article
(which had apparently been furnished to Howard’s
lawyer three days before Dr. Blade-Schlessinger’s
testimony), but after the prosecutor discussed it
further with the doctor, Howard’s lawyer never
reiterated an objection to either the article or
the way that Dr. Blade-Schlessinger referred to
it. Both the prosecutor and Howard’s lawyer
examined her on the substance of the article.

      During the course of proceedings, the prosecutor
made a variety of inappropriate remarks. Several
times, the prosecutor suggested that Howard had
been charged with sexual abuse in 1983 when in
fact all that had occurred was the DCFS inquiry.
Additionally, the prosecutor made a series of
references to the involvement of the DCFS itself
in Tamika’s case. Principally, the questions
suggested that Howard’s access to Tamika had been
restricted; in fact, there was no such
limitation. Howard objected to each of these and,
in all cases, the trial judge sustained the
objection and ordered the testimony disregarded.
But most troubling is a question put to Fletcher:
"Drawing your attention to 1985, who kidnapped
Tamika?" Howard again objected and again the
objection was sustained.

      Finally, during closing statements, the
prosecutor told the jury that "Tamika’s testimony
alone would convict this man of this crime." Her
co-counsel later added that "[t]he testimony of
one witness who is clear and convincing and
credible is enough right there to convict."
Howard objected, claiming that this misstated the
burden of proof. The trial judge overruled the
objection, ruling that the remark was not
designed to state the burden of proof but rather
merely that one witness’s testimony (if believed
by the jury) can suffice in appropriate
circumstances to establish guilt beyond a
reasonable doubt. See People v. D’Angelo, 333
N.E.2d 525, 530-31 (Ill. App. Ct. 1975).

      Howard claimed that all of the testimony
against him was false and just a result of
Fletcher’s jealousy and desire to obtain custody
over Tamika, but the jury obviously did not buy
that story. After his conviction, Howard appealed
in the Illinois courts. While awaiting appeal, he
received a letter from his court-appointed
appellate counsel, Julie Campbell, indicating
that she planned only to challenge the lack of a
mental state requirement in the statute under
which Howard was convicted and (possibly) a
defect in the indictment. Campbell also noted
that if Howard so chose, he could file a
supplemental brief with the Illinois Appellate
Division. He does not appear to have done so. In
any event, the appeals court dismissed his appeal
and the Illinois Supreme Court declined review.

      Howard then sought collateral relief in the
Illinois courts. This, too, was unsuccessful. In
February 1994, he petitioned the federal district
court under 28 U.S.C. sec. 2254. He also asked
for the appointment of counsel, but the district
court ruled on the merits of the petition without
mentioning this motion. Initially, the district
court denied relief because it believed that
adequate state grounds existed for the
conviction, but we reversed and remanded, Howard
v. DeTella, No. 95-3123, 1996 WL 405212 (7th Cir.
July 16, 1996) (unpublished order), for further
consideration because the Illinois Appellate
Division had said that his case presented "no
issues of arguable merit," not that Howard had
procedurally defaulted. The district court then
considered the merits of Howard’s claim, but
concluded that even if his appellate counsel’s
performance was unreasonably deficient, Howard
was not prejudiced and therefore not entitled to
habeas relief.

II
A.

      As with all claims of ineffective assistance of
counsel, we evaluate Howard’s argument that his
appellate lawyer was incompetent according to the
two-part test of Strickland v. Washington, 466
U.S. 668 (1984). That means that he must show
both that his lawyer’s performance was
unreasonably deficient and that this inadequacy
prejudiced him in the sense that there is a
reasonable probability that his case would have
been remanded for a new trial or that the
decision of the state trial court would have been
otherwise modified on appeal. Id. at 687, 694;
Blacharski v. United States, 215 F.3d 792, 794
(7th Cir. 2000). Also, since Howard filed his
habeas petition before the effective date of the
Antiterrorism and Effective Death Penalty Act
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
(1996), we conduct a de novo inquiry into these
questions. Jenkins v. Nelson, 157 F.3d 485, 491
(7th Cir. 1998); Lieberman v. Washington, 128
F.3d 1085, 1091 (7th Cir. 1997)./1
      Howard’s theory of ineffective assistance is
simple--he believes that his appellate lawyer
chose the wrong issues for appeal. The district
court identified four issues that Howard believes
his lawyer should have raised on direct appeal:
(1) Dr. Blade-Schlessinger’s expert testimony
(and especially the "hymen regeneration" theory)
was not generally accepted in the medical
community, (2) the accumulation of prosecutorial
misconduct we outlined above led to an unfair
trial, (3) the jury instructions failed to remedy
the prosecutor’s erroneous statements about the
"reasonable doubt" standard, and (4) Fletcher’s
report of Tamika’s conversations with her should
have been excluded as inadmissible hearsay.
Instead, the only issue counsel actually raised
was that the indictment was defective for failing
to allege a mental state. This court’s opinion in
Mason v. Hanks, 97 F.3d 887 (7th Cir. 1996),
demonstrates the method by which we apply the
Strickland test to a claim that counsel failed to
raise the correct issues on appeal. We deem
performance insufficient when counsel omits a
"significant and obvious issue" without a
legitimate strategic reason for doing so. Mason,
id. at 893, quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986), and Hollenback v. United
States, 987 F.2d 1272, 1275 (7th Cir. 1993). We
find prejudice "when that omitted issue ’may have
resulted in a reversal of the conviction, or an
order for a new trial.’" Mason, 97 F.3d at 893,
quoting Gray, 800 F.2d at 646.

      Since the choice of issues on appeal naturally
turns on the relative likelihood of success of
each one, there is obviously some overlap between
the performance and prejudice inquiries. For
example, because reversal is much more likely
when the appellate court’s review is de novo
rather than deferential, the standard of review
for a particular issue is a factor in determining
the adequacy of appellate counsel’s performance.
See, e.g., Maples v. Coyle, 171 F.3d 408, 427
(6th Cir. 1999), cert. denied, 120 S. Ct. 369
(1999); Bethea v. Artuz, 126 F.3d 124, 127 (2d
Cir. 1997). The performance half of the
Strickland test, in this context, requires us to
decide whether it was within the realm of
competent appellate representation to decline to
raise a particular point on appeal, considering
both the arguments that might be made and the
governing standard of review. Assuming that a
competent lawyer would have taken an appeal at
all (a question we need not consider here, since
there was no threat of a sentence-enhancing
remand that might make the risks of an appeal
outweigh its potential benefits), we evaluate
counsel’s performance by looking at the issues
that the defendant had available and determining
whether counsel’s choice of the best of them
represented the same kind of strategic choice we
permit for trial decisions. See Mason, 97 F.3d at
893; Gray, 800 F.2d at 646. The prejudice inquiry
is, in a sense, a more absolute one. There we ask
only whether there is a reasonable probability
that raising the issue would have made a
difference in the outcome of the appeal. In other
words, performance is about picking the battles;
prejudice looks at whether winning the battle
would have made a difference in the outcome of
the war.

      In Howard’s case, the district court found that
his appellate counsel performed inadequately
because it believed that there was "no reason why
Howard’s attorney could not simply have added the
issues Howard wanted raised to the single issue
she already planned to present." The court
indicated that this was a function not only of
the mechanical ease of adding on more issues, but
also, more importantly, "the dictates of legal
strategy" and the fact that "at least some of
Howard’s issues had a better factual and legal
basis than the issue that his counsel presented."
Appellate lawyers are clearly not incompetent
when they refuse to follow a "kitchen sink"
approach to the issues on appeals. To the
contrary, one of the most important parts of
appellate advocacy is the selection of the proper
claims to urge on appeal. Schaff v. Snyder, 190
F.3d 513, 526-27 (7th Cir. 1999). Throwing in
every conceivable point is distracting to
appellate judges, consumes space that should be
devoted to developing the arguments with some
promise, inevitably clutters the brief with
issues that have no chance because of doctrines
like harmless error or the standard of review of
jury verdicts, and is overall bad appellate
advocacy. On the other hand, counsel can’t throw
the baby out with the bath water. That is what
concerned the district court, and it concerns us
as well. Howard’s attorney chose to appeal only
one issue, in spite of the fact that Howard
himself had called counsel’s attention to the
other points, the record supported an appeal on
those points, and Howard was not asking for an
inordinate number of issues. We therefore have no
cause to disagree with the district court’s
conclusion that Howard has shown defective
performance on the part of appellate counsel, for
Strickland purposes, and we turn to the prejudice
question.

B.

      Turning to the specifics of Howard’s case, his
first and most substantial argument is that his
appellate lawyer was constitutionally ineffective
for failing to contest on appeal the district
court’s decision to allow Dr. Blade-Schlessinger
to testify that she believed that Tamika’s hymen
had repaired itself. His basic argument is that
the "hymen regeneration" testimony lacked
foundation, was not believable, and was therefore
highly prejudicial because it explained away an
otherwise highly exculpatory fact--Dr. Blade-
Schlessinger’s observation that Tamika’s hymen
was normal.

      The principal reason the district court gave
for rejecting this point concerned the
performance of Howard’s trial counsel. Because
trial counsel did not object to the admission of
this particular expert opinion (and the trial
court had qualified Dr. Blade-Schlessinger as an
expert both in child abuse and as a doctor),
Illinois courts would find the issue waived on
appeal. See People v. Mahaffey, 651 N.E.2d 1055,
1067 (Ill. 1995). Nor did defense counsel ever
perfect an objection to Dr. Blade-Schlessinger’s
reference to the then-recent August 1989 article
in Pediatrics--an article that buttressed her
1987 conclusions, but which obviously did not
play a role in her contemporaneous diagnosis. To
the contrary, counsel cross-examined her about
the substance of the article in some detail,
bringing out for the jury both the paucity of
evidence it revealed for regeneration of damaged
hymens (only one case involved this situation)
and the fact that scar tissue was evident after
healing (at least in early examinations).

      Under the circumstances, appellate counsel would
have had a serious uphill battle to convince an
Illinois appellate court to overturn the
admission of this testimony. As is generally
true, evidentiary decisions are left to the
discretion of the trial courts in Illinois, so
appellate review is deferential. People v. Jones,
715 N.E.2d 256, 261 (Ill. App. Ct. 1999). Second,
using the distinction between waiver and
forfeiture articulated by the United States
Supreme Court in United States v. Olano, 507 U.S.
725, 733 (1993), an Illinois court may well have
found that Howard waived his right to challenge
Dr. Blade-Schlessinger’s theory and that it was
not simply forfeited and fair ground for
something like our plain error review. Even if it
could have reached the merits of the point--which
is at best unclear--the court would not have
found reversible error unless it considered the
admission of Dr. Blade-Schlessinger’s opinion and
her references to the Pediatrics article so
beyond the pale of acceptable conduct as to
constitute an abuse of discretion. In determining
the admissibility of expert testimony, Illinois
continues to apply the "general acceptance" test,
meaning that the article on which Dr. Blade-
Schlessinger relied could serve as a proper
foundation for Dr. Blade-Schlessinger’s testimony
if it is "generally accepted by the relevant
scientific community." People v. Oliver, 713
N.E.2d 727, 734 (Ill. App. Ct. 1999), citing Frye
v. United States, 293 F. 1013 (D.C. Cir. 1923).
Howard does not present any reason to believe
that an article in Pediatrics, which is the
official journal of the American Academy of
Pediatrics, would not meet Illinois’s evidentiary
standards for foundation for expert testimony.

      The bulk of Howard’s attack on Dr. Blade-
Schlessinger’s testimony questions the
sensibleness of her regeneration theory. He makes
a variety of arguments that all revolve around
the same theme--it is simply not believable that
a girl as young as Tamika could be subjected to
intercourse with an adult male and show no signs
of hymenal damage or scarring. He further
maintains that the Finkel article and even Dr.
Blade-Schlessinger’s testimony itself actually
support his position. But that does not reflect
the entirety of Dr. Blade-Schlessinger’s
testimony. She also told the jury, as we have
already noted, that incestuous situations are
different from ordinary sexual violence and tend
to show less in the way of physical injury. Taken
as a whole, the jury could have inferred that
Howard’s physical contact with Tamika was enough
to make her hymen "not intact"--that is,
lacerated or torn somehow--and more than enough
to irritate the genital area, but not enough to
destroy it beyond repair. That would have
explained both the earlier medical findings of
injury, and Dr. Blade-Schlessinger’s later
finding of a normal body. Howard offers a strong
critique of Dr. Blade-Schlessinger’s testimony,
but all of his arguments were for the jury, not
the appellate judges, to consider. Howard’s trial
counsel vigorously contested the logic of Dr.
Blade-Schlessinger’s conclusions, but the jury
put the totality of the evidence together in a
different way. Since Illinois’s higher courts do
not second-guess jury conclusions regarding
questionable testimony, People v. Kirwan, 421
N.E.2d 317, 320 (Ill. App. Ct. 1981); People v.
Dunn, 365 N.E.2d 164, 170 (Ill. App. Ct. 1977),
there is no reason to think that presenting these
arguments to the Illinois appellate courts would
have increased the likelihood of reversal.
Consequently, Howard cannot show prejudice from
his appellate counsel’s failure to contest Dr.
Blade-Schlessinger’s testimony on appeal.

C.

      The statements from the prosecutor set forth
above were indeed troublesome, and once again, we
do not disagree either with the district court’s
assessment that they were "clearly deliberate and
improper prosecutorial comments," nor its
implicit conclusion that appellate counsel should
have presented this ground to the Illinois
appellate courts. Once again, the critical part
of the Strickland inquiry for Howard is the
prejudice question. The district court concluded
that these remarks, inappropriate though they
were, did not deprive Howard of his right to a
fair trial.

      The leading Supreme Court decision on the
question whether prosecutorial misconduct is so
egregious that a new trial is required, as a
matter of constitutional law, is Darden v.
Wainwright, 477 U.S. 168 (1986). In Darden, the
Court set forth six factors that should be
considered in deciding this question: (1) whether
the prosecutor misstated the evidence, (2)
whether the remarks implicate specific rights of
the accused, (3) whether the defense invited the
response, (4) the trial court’s instructions, (5)
the weight of the evidence against the defendant,
and (6) the defendant’s opportunity to rebut. 477
U.S. at 181-82; see also United States v.
Pirovolos, 844 F.2d 415, 426 (7th Cir. 1988)
(reciting the factors outlined in Darden). Here,
we must filter that inquiry through the question
whether appellate counsel’s failure to raise this
argument prejudiced Howard. Once again, we
conclude that the answer is no.
      First, Illinois courts do not reverse a jury’s
verdict because of this kind of prosecutorial
misconduct "absent a showing that the
prosecution’s improper remarks resulted in
substantial prejudice to the defendant and that,
without those remarks, the verdict would have
been different." People v. Modrowski, 696 N.E.2d
28, 39 (Ill. App. Ct. 1998) (citation omitted).
Second, as the district court here observed, the
most important of the Darden factors is the
weight of the evidence against the defendant.
United States ex rel. Howard v. DeTella, 959 F.
Supp. 859, 867 (N.D. Ill. 1997). That evidence
included Tamika’s own testimony, which the
district court found to be a "clear and
straightforward description of repeated sexual
abuse." Added to that was the testimony of Linda
Fletcher, who reported both her own observations
of Tamika’s body and Tamika’s reports of abuse.
Dr. Blade-Schlessinger testified that she
concluded Tamika had been abused, both in
reliance on the earlier medical reports and the
report of the treating psychiatrist Tamika was
seeing, and on her own examination.

      Howard is certainly right that the jury was not
compelled to believe this evidence, and that some
of the Darden factors cut in his favor. The
prosecutor misstated the evidence and nothing
Howard did invited the comments. On the other
hand, Howard’s attorney objected to four of the
remarks in question, his objections were
sustained, and the jury was instructed to
disregard the remarks. Howard’s attorney also had
the opportunity to rebut, even though for
understandable strategic reasons (we assume) he
chose not to do so. In the end, we think that the
Illinois appellate court, following Darden, would
have concluded that the remarks were improper,
but that they did not go to the heart of the
prosecution’s case--whether Howard abused Tamika.
We do not believe that this point would have
struck it as reversible error, and thus we cannot
say appellate counsel’s decision not to give it
a try was prejudicial.

D.

      Last, we come to Howard’s point concerning the
district court’s failure to rule on his motion
for appointment of counsel, and the related point
that he should have received counsel for the
presentation of his habeas corpus petition. We
are concerned about the "fall-between-the-cracks"
sense we get about the way this motion was
handled. Ordinarily, we would review a decision
not to appoint counsel for abuse of discretion,
Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir.
1995), but in this instance we think it
preferable to give the question de novo review,
since it is quite possible that there is no
underlying decision to review.

      In general, a refusal to appoint counsel calls
for reversal "only ’if, given the difficulty of
the case and the litigant’s ability, [he] could
not obtain justice without an attorney, [he]
could not obtain a lawyer on his own, and [he]
would have had a reasonable chance of winning
with a lawyer at [his] side.’" Winsett v.
Washington, 130 F.3d 269, 281 (7th Cir. 1997),
quoting Forbes v. Edgar, 112 F.3d 262, 264 (7th
Cir. 1997) (alterations in Winsett). We apply
liberal standards to this inquiry, because there
is a certain circularity to the argument. An
unskilled lay defendant may have trouble showing
the court which of his arguments has serious
legal merit, whereas a lawyer may be able to see
right away which parts of the case have
possibilities.

      In this case, Howard was able to present his
Strickland arguments to the district court, and
from that point, the district court’s task was to
review the state proceedings in light of both
Illinois law and the Sixth Amendment standard for
effective counsel. Counsel could not have changed
the strong evidence against Howard; he made no
claim that other newly discovered evidence would
have exonerated him; and we are not convinced
that further exploration into the medical
testimony would have made a difference given the
applicable standards of review. Howard’s able
counsel on appeal, to whom we give thanks, has
done the best she could to show prejudice from
the performance of his state appellate counsel
and to indicate how the federal proceedings might
have gone better for Howard if he had received
counsel right away in the district court, but we
do not find that Howard’s rights were
substantially affected by his lack of counsel at
the district court, and thus we decline the
request to send this case back for further
proceedings.

III

      We have considered the other arguments Howard
has raised and find no ground for reversal in
them. We therefore Affirm the judgment of the
district court.




/1 We note that Howard filed his petition for habeas
before the passage of the AEDPA. At the time this
case was briefed and argued, this court had a
rule that certificates of probable cause (CPC)
were to continue to be used for pre-AEDPA cases.
See Pisciotti v. Washington, 143 F.3d 296, 299-
300 (7th Cir. 1998). We therefore treated
Howard’s appeal under the pre-AEDPA version of
sec. 2253; as a CPC case, every issue raised by
Howard was properly before us. Since oral
argument, however, the Supreme Court has decided
that a certificate of appealability (CA) is
required for all habeas corpus petitions,
regardless of the time when the initial petition
was filed. See Slack v. McDaniel, 120 S. Ct.
1595, 1602 (2000). After Slack, only those issues
certified by the district judges would normally
be properly before us. In this case, however, the
parties have briefed all of the issues raised by
Howard. This court has the power to expand the
scope of a CA, which is what we have done here to
avoid prejudice to either side from the change in
rules.
