                               In the

     United States Court of Appeals
                 For the Seventh Circuit
No. 12-3245

TYRONE L. JONES,
                                                Petitioner-Appellant,

                                  v.


RICHARD BROWN,
                                                Respondent-Appellee.

             Appeal from the United States District Court
      for the Southern District of Indiana, Terre Haute Division.
     No. 2:11-cv-205-WTL-WGH — William T. Lawrence, Judge.


    ARGUED FEBRUARY 19, 2014 — DECIDED JUNE 24, 2014


   Before POSNER, RIPPLE, and KANNE, Circuit Judges.
    RIPPLE, Circuit Judge. After a bench trial, Tyrone L. Jones
was convicted of felony murder in an Indiana trial court. His
conviction was affirmed on direct appeal. He then filed a
petition for postconviction relief in state court, alleging
ineffective assistance of trial counsel. Specifically, he contended
that his trial counsel had been ineffective for failing to seek the
suppression of clothing that Mr. Jones had given to the police
after his arrest. Mr. Jones contended that the clothing had been
2                                                   No. 12-3245

obtained in violation of Pirtle v. State, 323 N.E.2d 634 (Ind.
1975), which, at least under some circumstances, requires that
a detainee be advised of his right to counsel prior to consenting
to a search of his property. The state trial court denied
postconviction relief; the Court of Appeals of Indiana affirmed
that judgment, and the Supreme Court of Indiana denied
transfer.
     Having exhausted his state remedies, Mr. Jones sought
federal habeas relief under 28 U.S.C. § 2254. He reiterated the
same claim of ineffectiveness of counsel that he had presented
to the state courts. The district court denied relief. We now
affirm that judgment because trial counsel was not constitu-
tionally ineffective under Strickland v. Washington, 466 U.S. 668
(1984).


                               I
                       BACKGROUND
                               A.
   The Court of Appeals of Indiana summarized the facts
underlying Mr. Jones’s conviction as follows:
         In February 2002, Sam Alexander lived at the
       Lamplighter Apartments in Indianapolis. Alex-
       ander was fifty-five years old and weighed
       approximately 138 pounds. He walked with a
       limp and suffered from emphysema. Alexander
       and Jones used drugs together on occasion. In
       February 2002, Jones was thirty-three years old
       and weighed 230 pounds.
No. 12-3245                                                 3

        During the weekend of February 8, 2002, Jones
      and Annissa Harris were getting high on crack
      cocaine at Alexander’s apartment. At some point,
      Alexander asked Jones and Harris to leave, and
      Harris left. Harris later saw Jones carrying Alex-
      ander’s television, and when she inquired what
      Jones was doing with it, he stated that Alexander
      had “pawned it to him.” Jones sold the television
      to a friend of Robert Crabtree. Crabtree and
      Harris both lived across the street from Alexan-
      der’s apartment.
        Harris went back to Alexander’s apartment
      that night, and although she saw someone look-
      ing through the peephole of the door, no one
      answered. When she returned the next day, the
      door was locked and, again, no one answered.
      On Sunday, February 17, 2002, after noticing that
      Alexander’s apartment lights were on all the
      time, Harris returned to Alexander’s apartment
      with a friend. When she and her friend
      approached Alexander’s door, they both smelled
      “a foul odor.” Later that evening when she saw
      a police officer, Harris asked the officer to check
      on Alexander. At some point that weekend,
      Jones called Crabtree and asked him if he had a
      valid identification because Jones wanted to
      pawn a microwave.
        Indianapolis Police Officer Stephen Hart ar-
      rived at Alexander’s apartment and noticed a
4                                                            No. 12-3245

        foul odor. When he could not gain entry into the
        apartment, he called for the fire department to
        bring a ladder. Once firemen arrived, they gain-
        ed entry into Alexander’s apartment through the
        back door. They discovered Alexander’s body on
        the floor. His hands had been tied behind his
        back, his feet tied at the ankles, and a piece of
        cloth had been tied over his mouth as a gag.
        Alexander’s body was in an advanced stage of
        decomposition.
        ….
          During a police investigation, Harris identified
        Jones as the person who had been in Alexander’s
        apartment when she had last seen Alexander
        alive.[1]
Indianapolis Police Detective Charles Benner later discovered
that Mr. Jones was wanted on three outstanding warrants. The
police located Mr. Jones, arrested him and brought him to
police headquarters on April 10, 2002.
      Jones signed a form dated April 10, 2002, that
      contained an “ADVICE OF RIGHTS” and “WAIVER
      OF RIGHTS.” Detective Benner interviewed Jones
      and noticed that the soles of his shoes appeared to
      be the same shoe print that he saw on a pillowcase.
      Detective Benner asked if he could take Jones’s


1
   Jones v. State, No. 49A02-1006-PC-687, 2011 WL 684625, at *1-2 (Ind. Ct.
App. Feb. 28, 2011) (quoting Jones v. State, No. 49A02–0305–CR–416, slip op.
at 2-4 (Ind. Ct. App. Feb. 11, 2004)).
No. 12-3245                                                               5

       clothing and shoes, and Jones said yes. The police
       also interviewed Jones twice on April 11, 2002, and
       Jones gave two statements.
          In his first statement, Jones admitted that he
         had spent the weekend of February 8 at Alexan-
         der’s apartment. He denied that he had taken
         any of Alexander’s things and claimed he did not
         know what had happened to Alexander.
           In his second statement, however, Jones stated
         Alexander had agreed to give Jones his television
         in exchange for drugs. According to Jones, at
         some point, Alexander wanted more drugs,
         became angry and came at him with a
         pocketknife. Jones stated that he pushed Alexan-
         der, that Alexander’s head hit the wall, and that
         Jones then hit him in the head with his fists a few
         times. Alexander was unconscious, and Jones
         stated that he gathered his things and left. He
         then returned and took the television. He stated
         that he returned a third time and decided to bind
         Alexander’s hands and feet and gag his mouth.
         He stated that he sold the television to a man
         who lived across the street from Alexander but
         denied taking the microwave.[2]




2
    Id. at *2 (quoting Jones, No. 49A02-0305-CR-416, slip op. at 4-5) .
6                                                     No. 12-3245

                                B.
    A few days after the interview, the State charged Mr. Jones
with murder, felony murder, robbery and criminal confine-
ment. He waived his right to a jury trial and proceeded to a
bench trial. Mr. Jones’s counsel argued that Mr. Jones had
acted in self-defense, that he had not committed the robbery
and that Mr. Jones had bound Alexander because of the further
threat that Alexander posed. Counsel did not move to suppress
the admission of Mr. Jones’s clothing items, his admissions
regarding his presence at Alexander’s apartment or a labora-
tory report tying Mr. Jones’s clothing to the crime scene.
Indeed, Mr. Jones’s counsel and the State stipulated to the
laboratory report’s admissibility because, as Mr. Jones’s trial
counsel explained, there was no issue about Mr. Jones’s
presence in the apartment on the day that Alexander was
killed.
    The trial court found Mr. Jones guilty, merged all the
counts into the felony-murder count and entered a judgment
of conviction for felony murder. It sentenced Mr. Jones to sixty-
five years’ imprisonment.
    Mr. Jones appealed his conviction. On direct appeal, he
argued that the State had presented insufficient evidence for
his felony-murder conviction and that the trial court had erred
when it imposed sentence. The court of appeals affirmed the
conviction and sentence. Mr. Jones did not seek transfer to the
Supreme Court of Indiana.
   Mr. Jones then filed a petition for state postconviction relief.
The first petition was withdrawn and replaced with a second,
pro se petition. The state trial court conducted an evidentiary
No. 12-3245                                                        7

hearing on the petition, at which Mr. Jones’s trial attorneys
testified. At the hearing, Mr. Jones inquired whether the
attorneys had considered objecting to the admission of
evidence related to the seizure of his shoes on the basis of Pirtle
v. State, 323 N.E.2d 634 (Ind. 1975). One attorney testified that,
          if they arrested you on a warrant and they took your
          clothes in the ordinary course of taking your clothes,
          uh, as part of their procedures for that, uh, it’s a
          valid arrest under the warrant. And what they take
          from you as standard operating procedures incident
          to that arrest, uh, I don’t believe that would be
          something that would be a problem.[3]
    In questioning his other attorney, Mr. Jones asked: “Are
you familiar with the laws with this state pertaining to a search
for a person that’s in police custody, that he must be informed
of his right to consult with counsel before a valid consent can
be given?”4 The attorney responded: “That’s not the law.”5
When Mr. Jones explicitly referred to Pirtle v. State, the attor-
ney testified that “I think the issues … whether or not a person
has been advised of that is relevant to that decision, but it’s not
a requirement in our state.”6 He later said that, to his recollec-




3
    Postconviction Tr. 54.

4
    Id. at 143.

5
    Id.

6
    Id.
8                                                     No. 12-3245

tion, he did not object to the shoes because Mr. Jones “w[as]n’t
denying that [he]’d been there at the fellow’s apartment.”7
   At the hearing, Mr. Jones also questioned Detective Benner
about his initial encounter with Mr. Jones after he was arrested.
Detective Benner stated that, at that time, he requested
Mr. Jones’s shoes because he had observed that the print on the
bottom of the shoes appeared to match a print that he had seen
in photographs of the crime scene. According to
Detective Benner’s testimony, he asked “if [he] could have the
shoes, and [Mr. Jones] said, yeah, no problem.”8
   Mr. Jones also elicited testimony from Detective Benner
about his attempts to obtain a statement from Mr. Jones:
          Q: And the day that you recovered my shoes I
             didn’t want to make a taped statement, did I?
          A: You said you were tired. You asked me to come
             back and get you the next day.
          Q: On the day, on, on that day during our conversa-
             tion, didn’t I basically tell you I didn’t know
             what happened to Sam, never saw Sam again,
             and denied being at the, at the scene?
          A: You said that you were at the scene. You said
             you weren’t at the scene when he was killed … .
             ….




7
    Id. at 159.

8
    Id.
No. 12-3245                                                       9

         Q: Okay. The next day after testing my shoes for
            blood didn’t you come back to, to tell me the
            things you knew?
         A: The tests for your shoes didn’t come back for
            quite a bit longer, but, no, I did tell you some of
            the things I knew in order to get you to tell me
            the truth, yes.[9]
   As the hearing was concluding, Mr. Jones offered testimony
on his own behalf. He stated:
         [T]he day that I was arrested, two months had
         already elapsed between my arrest and
         Mr. Alexander’s death. And when I was taken to
         downtown headquarters, though I was Mirandized,
         I was not informed of my right to confer with
         counsel about the possibility of consenting to, you
         know, before consenting to a search, you know, and
         my shoes being, and clothing being tested, you
         know, for blood. I also believed that because my …
         shoes were taken in violation of my right, Fourth
         Amendment right, or possible Sixth Amendment
         right, that all the evidence learned or gained from
         that illegal conduct is tainted and should have been
         excluded.[10]
   Following the hearing, the state trial court denied relief.
Ruling on Mr. Jones’s claim of ineffective assistance with


9
     Id. at 236-37.

10
     Id. at 261-62.
10                                                    No. 12-3245

respect to counsel’s failure to move to suppress Mr. Jones’s
items of clothing, the trial court concluded:
       37. During his interrogation of Jones, Detective
       Charles Benner sought to obtain Jones’ clothing and
       shoes for comparison with evidence found at the
       crime scene. Jones voluntarily provided his shoes to
       the detective. He was not coerced or compelled in
       any fashion to surrender his shoes and clothing to
       Benner.
       ….
       39. Jones has not demonstrated that Benner seized
       these items in violation of either the U.S. or Indiana
       Constitutions.
       ….
       87. Moreover, as Jones willingly gave the shoes to
       the officer, Jones has not demonstrated that his
       counsel would have been successful in seeking a
       motion to suppress.[11]
    Mr. Jones appealed to the Court of Appeals of Indiana and
reiterated his claim that “his trial attorneys were ineffective for
failing to file a motion to suppress evidence and for failing to
object to the admission of this evidence at trial.”12 He con-
tended that “his trial attorneys should have challenged the


11
    R.23-6 (Findings of Fact and Conclusions of Law Denying Post-
Conviction Relief) at 48, 57 (citations omitted).

12
     Id. (Mr. Jones’s postconviction brief) at 24.
No. 12-3245                                                     11

admissibility of evidence based upon the legal doctrines
enunciated in Pirtle and Sims [v. State, 413 N.E.2d 556 (Ind.
1980)].”13 Mr. Jones pointed out that there was no question that
he was in custody at the time Detective Benner requested his
shoes and that he was not advised of his right to consult with
counsel before surrendering his shoes. He also maintained that
the search was “unlimited,” and, therefore, clearly fell within
the rule of Pirtle.14 Finally, he urged the court to reject the
State’s argument that the admission of the shoes was harmless
because he had not contested his presence at the scene of the
crime: “[T]he theory of self-defense resulted from Jones’s
statements to the police. Those incriminating statements were
the poisonous fruits of the illegal, warrantless seizure of Jones’s
clothes and shoes. Challenging the warrantless seizure of the
clothes and shoes would also preclude the admissibility of the
statements.”15
    In response, the State first argued that Pirtle did not apply
because, “[w]hen a search is less invasive than an unlimited
search, an officer is not required to advise a suspect of his right
to consult with an attorney before consenting to the search.”16
Additionally, the State maintained that “Jones conceded that
he was at Alexander’s home that evening, and, thus, his



13
     Id. at 25 (footnote omitted).

14
     Id. at 27.

15
     Id. at 29.

16
     R.23-7 (State’s postconviction appellate brief) at 22.
12                                                        No. 12-3245

defense was not negatively impacted by any evidence related
to his shoes.”17
    The Court of Appeals of Indiana affirmed the denial of state
postconviction relief. It held that Mr. Jones was not prejudiced
by his counsel’s failure to object to the laboratory report. It
stated:
             Jones appears to argue that his trial counsel was
           ineffective for failing to file a motion to suppress or
           object to the admission of his shoes and clothes.
           Jones argues that his trial attorneys “should have
           challenged the admissibility of evidence based upon
           the legal doctrines enunciated in” Pirtle v. State, 323
           N.E.2d 634 (1975), and Sims v. State, 413 N.E.2d 556
           (1980). Appellant’s Brief at 18. Jones argues that “the
           theory of self-defense resulted from [his] statements
           to the police,” and that “[t]hose incriminating
           statements were the poisonous fruits of the illegal,
           warrantless seizure of Jones’s clothes and shoes.” Id.
           at 22.
           ….
             Jones does not develop a cogent argument that the
           mere admission of his shoes or clothing prejudiced
           him. As the State points out, Jones admitted to being
           present in Alexander’s apartment and striking him.
           To the extent that Jones suggests that his statements
           to the police claiming self-defense were the poison-


17
     Id.
No. 12-3245                                                          13

        ous fruits of the seizure of his clothes and shoes,
        Jones does not argue that these statements were
        obtained as a direct result of the search of his shoes
        and clothing. Further, we note that the Laboratory
        Examination Report indicating that the DNA profile
        from Jones’s shoe matched Alexander’s DNA profile
        was dated February 27, 2003, well after Jones’s
        statements to the police in April 2002. We cannot say
        that Jones has demonstrated that he was prejudiced
        by the admission of his shoes or clothing. Accord-
        ingly, his claim of ineffective assistance on this basis
        fails.[18]
The Supreme Court of Indiana denied transfer.


                                  C.
    Having exhausted his available state remedies, Mr. Jones
then filed a petition for federal habeas relief. See 28 U.S.C.
§ 2254.19 He asserted, again, that his trial counsel was ineffec-
tive for “fail[ing] to try to suppress inculpatory evidence and
fail[ing] to object to its admission at trial.”20 The district court
concluded that the state appellate court correctly had identified
Strickland v. Washington, 466 U.S. 668 (1984), as articulating the

18
    Jones, 2011 WL 684625, at *9 (footnote omitted) (parallel citations
omitted).

19
    The district court had jurisdiction over Mr. Jones’s habeas petition
pursuant to 28 U.S.C. § 2254(a).

20
     R.1 at 4.
14                                                      No. 12-3245

governing federal constitutional principle and that it had taken
“the constitutional standard seriously and produced an answer
within the range of defensible positions.”21 Consequently, the
court denied habeas relief and denied Mr. Jones a certificate of
appealability.
   Mr. Jones filed a notice of appeal and sought a certificate of
appealability from this court.22 The certificate was granted, and
the case was set for argument.


                                 II
                          DISCUSSION
                                 A.
    We first set forth the legal principles that must govern our
inquiry. We review the district court’s denial of habeas relief de
novo. Arredondo v. Huibregtse, 542 F.3d 1155, 1167 (7th Cir.
2008). Our review of the underlying state court adjudication,
however, is deferential. Under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), when a state court adjudicates
a petitioner’s claim on the merits, a federal court may grant
habeas relief only when the state court’s adjudication of the
claim
        (1) resulted in a decision that was contrary to, or
        involved an unreasonable application of, clearly


21
     R.35 at 3, 5.

22
    We have jurisdiction over Mr. Jones’s appeal pursuant to 28 U.S.C.
§§ 1291 and 2253(a).
No. 12-3245                                                      15

     established Federal law, as determined by the
     Supreme Court of the United States; or (2) resulted
     in a decision that 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).
   Here, the Court of Appeals of Indiana correctly concluded
that Mr. Jones’s ineffective assistance of counsel claim is
governed by Strickland v. Washington, 466 U.S. 668 (1984).
Under Strickland, a defendant must show that (1) counsel’s
performance fell “outside the wide range of professionally
competent assistance” and (2) “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 690, 694.
     A court considering a claim of ineffective assistance
     must apply a “strong presumption” that counsel’s
     representation was within the “wide range” of
     reasonable professional assistance. The challenger’s
     burden is to show “that counsel made errors so
     serious that counsel was not functioning as the
     ‘counsel’ guaranteed the defendant by the Sixth
     Amendment.”
Harrington v. Richter, 131 S. Ct. 770, 787 (2011) (citation omitted)
(quoting Strickland, 466 U.S. at 689, 687). In assessing prejudice
under Strickland, the defendant must demonstrate that, in the
absence of counsel’s misstep, there is a reasonable likelihood
that the result would have been different. See Strickland, 466
U.S. at 694. “This does not require a showing that counsel’s
actions ‘more likely than not altered the outcome’”; neverthe-
16                                                   No. 12-3245

less, “[t]he likelihood of a different result must be substantial,
not just conceivable.” Harrington, 131 S. Ct. at 792 (quoting
Strickland, 466 U.S. at 693).
   Under AEDPA, however, Mr. Jones must not simply satisfy
the Strickland standard; he also must establish that the state
court’s application of Strickland was unreasonable. As the
Supreme Court has noted, this is not an easy task:
     As a condition for obtaining habeas corpus from a
     federal court, a state prisoner must show that the
     state court’s ruling on the claim being presented in
     federal court was so lacking in justification that there
     was an error well understood and comprehended in
     existing law beyond any possibility for fairminded
     disagreement.
Id. at 786-87. Similarly, we have observed that the bar for
establishing the unreasonableness of a state court’s application
of Strickland “is a high one, and only a clear error in applying
Strickland will support a writ of habeas corpus.” Allen v.
Chandler, 555 F.3d 596, 600 (7th Cir. 2009).


                               B.
    With these standards in mind, we turn to Mr. Jones’s
submissions. He maintains that his trial counsel was ineffective
for failing to seek the suppression of his shoes and related
evidence on the basis of Pirtle v. State, 323 N.E.2d 634 (Ind.
1975). In Pirtle, the Supreme Court of Indiana
     recognized the right of those in custody to have the
     advice of counsel at the point where a consent to
No. 12-3245                                                                17

       search is requested, and expressly and clearly
       imposed upon the State the burden in court of
       demonstrating an explicit waiver of such right as a
       condition to introducing the fruits of such searches.
Sims v. State, 413 N.E.2d 556, 559 (Ind. 1980), overruled on other
grounds by Wright v. State, 658 N.E.2d 563, 570 (Ind. 1995).
Mr. Jones submits that, had his counsel objected to this
evidence, then his clothing, his statements to the police and the
laboratory report all would have been suppressed. Further-
more, in his view, had “the clothing, shoes, and derivative
evidence” been suppressed, “there is a reasonable probability
that the fact finder would have had a reasonable doubt about
guilt.”23
    In reply, the State first argues that Pirtle applies only to
requests for unlimited searches of a dwelling or automobile,
not to a specific request for items of clothing. It invites our
attention to a number of cases decided subsequent to Pirtle that
appear to have narrowed considerably Pirtle’s application.24 It


23
     Appellant’s Br. 27.

24
     See, e.g., Garcia-Torres v. State, 949 N.E.2d 1229, 1238-39 (Ind. 2011)
(noting that “Pirtle and the ensuing cases have applied this rule only to the
weightiest intrusions,” observing that it “has suppressed evidence based on
Pirtle when the police searched either a home or a vehicle” and refusing to
apply the rule of Pirtle to requests for cheek swabs); Datzek v. State, 838
N.E.2d 1149, 1160 (Ind. Ct. App. 2005) (holding that Pirtle is not applicable
to chemical blood tests); Schmidt v. State, 816 N.E.2d 925, 944 (Ind. Ct. App.
2004) (holding that Pirtle is not applicable to chemical breath tests);
Ackerman v. State, 774 N.E.2d 970, 981-82 (Ind. Ct. App. 2002) (identifying
                                                                (continued...)
18                                                            No. 12-3245

also notes that, even if there had been a misstep by counsel, the
state appellate court reasonably concluded that Mr. Jones was
not prejudiced by counsel’s failure to move to suppress the
shoes because he “admitted to being present in Alexander’s
apartment.” Jones v. State, No. 49A02–1006–PC–687, 2011 WL
684625, at *9 (Ind. Ct. App. Feb. 28, 2011). Similarly, the State
submits, the Court of Appeals of Indiana reasonably concluded
that, “[t]o the extent that Jones suggests that his statements to
the police claiming self-defense were the poisonous fruits of
the seizure of his clothes and shoes, Jones does not argue that
these statements were obtained as a direct result of the search
of his shoes and clothing.” Id.
    Finally, the State asserts that, even without the clothing,
laboratory report and statements, there was sufficient evidence
to support Mr. Jones’s conviction, including Detective Benner’s
testimony that the shoes Mr. Jones was wearing matched those
at the scene, the discovery of Mr. Jones’s blood inside Alexan-
der’s apartment, and the possession by Mr. Jones of Alexan-
der’s television and microwave.


                                     1.
   We begin by considering whether Mr. Jones’s trial counsel’s
performance fell “outside the wide range of professionally


24
   (...continued)
“the purpose of the Pirtle doctrine” as “ensur[ing] that no person in custody
consents to an unlimited search unless she is fully informed of the constitu-
tional rights she is waiving” and refusing to apply the rule with respect to
requests for field sobriety tests (emphasis added)).
No. 12-3245                                                     19

competent assistance.” Strickland, 466 U.S. at 690. Because the
Court of Appeals of Indiana did not reach this issue, there is no
state-court determination to which we must defer under
AEDPA, and we therefore consider the question of counsel’s
performance de novo. Sussman v. Jenkins, 636 F.3d 329, 350 (7th
Cir. 2011) (stating that if the state court does not reach the
merits of one prong of the Strickland analysis, then federal
review of that prong “is not circumscribed by a state court
conclusion, and our review is de novo” (internal quotation
marks omitted)).
    “There is no federal constitutional right to counsel before
consenting to a search even if the suspect is in custody.
However, Pirtle v. State, 323 N.E.2d 634 (1975), established that
Article I, section 11 of the Indiana Constitution requires that a
person in custody explicitly waive the right to counsel before
giving a valid consent to a search.” Clarke v. State, 868 N.E.2d
1114, 1119 (Ind. 2007) (citation and parallel citation omitted).
“[T]he purpose of the Pirtle doctrine is to ensure that no person
in custody consents to an unlimited search unless she is fully
informed of the constitutional rights she is waiving.” Ackerman
v. State, 774 N.E.2d 970, 981 (Ind. Ct. App. 2002) (emphasis
added). Later cases have made it clear that Pirtle applies “only
to the weightiest intrusions”; when police have asked to
conduct “minimally intrusive” searches, Indiana courts have
held that Pirtle does not apply. Garcia-Torres v. State, 949 N.E.2d
1229, 1238 (Ind. 2011). Thus, the Supreme Court of Indiana has
suppressed evidence based on Pirtle when the police have
searched a home or a vehicle, but has refused “to extend that
rule” to police requests for cheek swabs for the purposes of
DNA testing. See id. at 1238-39 (citing Pirtle, 323 N.E.2d 634
20                                                   No. 12-3245

(home search), and Sellmer v. State, 842 N.E.2d 358 (Ind. 2006)
(vehicle search)). Similarly, the state courts of appeals have not
applied Pirtle to custodial requests for chemical blood tests, see
Datzek v. State, 838 N.E.2d 1149, 1158–60 (Ind. Ct. App. 2005);
to chemical breath tests, see Schmidt v. State, 816 N.E.2d 925,
942–44 (Ind. Ct. App. 2004); or to field sobriety tests, Ackerman,
774 N.E.2d at 979–82. The courts have explained that these
types of searches are “qualitatively different from the general,
unlimited searches that concerned the Pirtle court”; they do not
allow police to troll for evidence of any type of criminal
activity, but are limited in scope and “take little time to
administer.” Datzek, 838 N.E.2d at 1159-60 (internal quotation
marks omitted).
    Here, Detective Benner’s request for Mr. Jones’s shoes fits
comfortably within the category of searches to which Pirtle
does not apply. It was limited in scope and was minimally
intrusive—certainly less so than a blood sample or even a
cheek swab. Mr. Jones has not come forward with any exam-
ples of Indiana cases that have required Pirtle warnings in
circumstances similar to his, nor is there any indication that
Indiana courts are inclined to extend the rule of Pirtle to apply
in such circumstances.
    We have explained that a claim of ineffective assistance
based on counsel’s failure to object is “tied to the admissibility
of the underlying evidence.” Hough v. Anderson, 272 F.3d 878,
898 (7th Cir. 2001). If evidence admitted without objection is,
in fact, admissible, then “failing to object to [that] evidence
cannot be a professionally ‘unreasonable’ action.” Id. The same
rationale applies to counsel’s failure to move to suppress; if the
No. 12-3245                                                    21

evidence would not have been suppressed, then the failure to
move for suppression of that evidence is not professionally
unreasonable. In the present case, had Mr. Jones’s counsel
moved to suppress the shoes, or any evidence that resulted
from the testing of the shoes, on the basis of Pirtle, we believe
that the state court would have denied that motion. Conse-
quently, trial counsel’s failure to press an unavailing argument
based on Pirtle was not “outside the wide range of profession-
ally competent assistance” that Strickland allows, Blake v. United
States, 723 F.3d 870, 879 (7th Cir. 2013), and trial counsel was
not constitutionally ineffective.


                                2.
   The determinative issue for the Court of Appeals of
Indiana, however, was not counsel’s performance, but, instead,
the resulting prejudice. The state appellate court held:
       Jones does not develop a cogent argument that the
     mere admission of his shoes or clothing prejudiced
     him. As the State points out, Jones admitted to being
     present in Alexander’s apartment and striking him.
     To the extent that Jones suggests that his statements
     to the police claiming self-defense were the poison-
     ous fruits of the seizure of his clothes and shoes,
     Jones does not argue that these statements were
     obtained as a direct result of the search of his shoes
     and clothing. Further, we note that the Laboratory
     Examination Report indicating that the DNA profile
     from Jones’s shoe matched Alexander’s DNA profile
     was dated February 27, 2003, well after Jones’s
22                                                                   No. 12-3245

       statements to the police in April 2002. We cannot say
       that Jones has demonstrated that he was prejudiced
       by the admission of his shoes or clothing. Accord-
       ingly, his claim of ineffective assistance on this basis
       fails.
Jones, 2011 WL 684625, at *9.25 Because the Court of Appeals of
Indiana resolved the prejudice prong against Mr. Jones on the
merits, we apply AEDPA deference to this determination. See
Toliver v. McCaughtry, 539 F.3d 766, 774-76 (7th Cir. 2008)
(applying AEDPA standard to prejudice prong of Strickland
analysis where state court reached that issue on the merits).



25
     Earlier in its discussion, the court noted:

          Jones appears to focus his arguments on the admission of
          his clothes and shoes. Jones also states that “all of the
          inculpatory evidence was admissible” and that “the
          statements were inadmissible.” Appellant’s Brief at 22. To
          the extent that Jones challenges evidence other than his shoes and
          clothes, we conclude that Jones fails to put forth a cogent
          argument. Consequently, this issue is waived.

Jones, 2011 WL 684625, at *9 n.6 (emphasis added). Mr. Jones’s statements
to Detective Benner fall into the category of inculpatory evidence “other
than his shoes and clothes.” The appellate court’s opinion, therefore, could
be viewed as a determination that Mr. Jones had waived any argument
concerning his statements for failing to develop adequately that argument.
Because the court, in the body of its opinion, directly addresses Mr. Jones’s
statements to the police, we believe that the state court’s decision is best
read as determining that Mr. Jones did not meet his substantive burden of
establishing a connection between the allegedly illegal seizure and the later
statements.
No. 12-3245                                                                   23

    We cannot say that this conclusion by the state court of
appeals is in any way unreasonable. First, the court correctly
discerned that Mr. Jones had the burden of establishing that
the uncounseled seizure of his clothing resulted in the prejudi-
cial admission of evidence against him. In Pirtle, 323 N.E.2d at
642, the Supreme Court of Indiana set forth the allocation of
burdens of proof with respect to the fruit of the poisonous tree
doctrine. It held that the defendant has the initial burden of
proving that an illegal search took place and that the evidence
at issue was a “fruit” of that search. Id.26 At that point, the
burden shifts to the State to establish that the evidence falls
within some exception to the exclusionary rule. Id.; see also
Herald v. State, 511 N.E.2d 5, 8 (Ind. Ct. App. 1987). Here,


26
    As noted previously, it is clear that the application of Pirtle is a question
of state law. See Clarke v. State, 868 N.E.2d 1114, 1119 (Ind. 2007) (explaining
that Pirtle does not have its roots in the federal Constitution but in Article
I, section 11 of the Indiana Constitution). Nevertheless, we note that the
approach of Indiana courts with respect to establishing a nexus parallels
that taken by the federal courts. See Gardner v. United States, 680 F.3d 1006,
1011 (7th Cir. 2012) (“A defendant seeking to have evidence suppressed as
the fruit of an illegal search need only establish a factual nexus between the
illegality and the challenged evidence.” (internal quotation marks omitted));
United States v. Ienco, 182 F.3d 517, 528 (7th Cir. 1999) (citing United States
v. Kandik, 633 F.2d 1334, 1335 (9th Cir. 1980), for the proposition that the
“defendant has the initial burden of establishing a factual nexus between
the illegality and the challenged evidence”); see also United States v.
Riesselman, 646 F.3d 1072, 1079 (8th Cir. 2011) (“In order to determine
whether challenged evidence is the fruit of an illegal search or seizure, the
defendant bears the initial burden of establishing the factual nexus between
the constitutional violation and the challenged evidence.” (internal
quotation marks omitted)); United States v. Nava-Ramirez, 210 F.3d 1128,
1131 (10th Cir. 2000) (same).
24                                                                No. 12-3245

therefore, the burden was on Mr. Jones to prove that the
seizure of his shoes was unlawful and “that the challenged
evidence”—here his statements—“was available to the State as
a factual result of the police officers’ illegal activity.” Herald,
511 N.E.2d at 8. In his brief to the Court of Appeals of Indiana,
however, Mr. Jones made no attempt to meet his burden by
establishing this connection. His argument that his statements
were fruits of the illegal search consisted of the following
conclusory statement:
       [T]he theory of self-defense resulted from Jones’s
       statements to the police. Those incriminating state-
       ments were the poisonous fruits of the illegal,
       warrantless seizure of Jones’s clothes and shoes.
       Challenging the warrantless seizure of the clothes
       and shoes would also preclude the admissibility of
       the statements. Wong Sun v. United States, 371 U.S.
       471, 487, 488 (1963); see also, Jackson v. State, 669
       N.E.2d 744 (Ind. Ct. App. 1996).[27]
In the absence of further argument by Mr. Jones, the Court of
Appeals of Indiana was justified in concluding that Mr. Jones
had not met his burden of establishing a connection between
the seizure of his clothes and his statements.


                                      3.
   Nevertheless, Mr. Jones maintains that, despite this facially
apparent reasonableness, the Court of Appeals of Indiana’s


27
     R.23-6 (Mr. Jones’s postconviction appellate brief) at 29.
No. 12-3245                                                       25

decision actually was “patently unreasonable” because, in the
earlier postconviction hearing in the state trial court, the judge
had “denied him the opportunity to develop evidence that the
statements were indeed obtained as a direct result of the search
of his clothes and shoes during Jones’s post-conviction exami-
nation of Benner.”28 Specifically, Mr. Jones points to the
following excerpt from Detective Benner’s testimony at the
state postconviction hearing before the trial court:
       Q. Okay. The next day after testing my shoes for
          blood didn’t you come back to, to tell me the
          things you knew?
       A. The tests for your shoes didn’t come back for
          quite a bit longer, but, no, I did tell you some of
          the things I knew in order to get you to tell me
          the truth, yes.
       Q. But in your—I’m, I’m making reference to
          Mr. Benner’s—
           MR. CAMPBELL: Your Honor, I object to this
         whole line of questioning. It is irrelevant to a post-
         conviction relief proceeding.
          THE COURT: Response? What are you trying to
         prove?
           MR. JONES: That my, my rights were violated.
         Not only was my, my, my shoes taken without
         consent under the Fourth Amendment,—



28
     Appellant’s Br. 24.
26                                                      No. 12-3245

            THE COURT: Well, that, that’s your argument.
           He said, he says you have consent.
            MR. JONES: Right.
            THE COURT: And what are you trying to show?
             MR. JONES: To show that all the evidence after
           the initial misconduct by the police is tainted.
             THE COURT: Well, the Court will assume that,
           because the law says that if there was a violation of
           your rights, at that point any evidence derived
           from that would be inadmissible. You don’t have
           to establish what other evidence he had after that.
            MR. JONES: Okay.[29]
In light of the trial judge’s statements, Mr. Jones argues that it
was unreasonable for the state appellate court “to determine
that [he] failed to make a cogent argument when, in fact, he
had made (and won) the argument below.”30
    We believe that a close examination of the entire record
requires the conclusion that there is no merit to this argument.
First, as a preliminary matter, it is incorrect to say that
Mr. Jones “made (and won) [his] argument” before the Indiana
trial court.31 True enough, the transcript shows that the State
objected to Mr. Jones’s line of questioning and that the trial


29
     Postconviction Tr. 237-38.

30
     Appellant’s Br. 25.

31
     Id.
No. 12-3245                                                    27

court implicitly sustained that objection on the ground that the
court would assume that any evidence derived from a viola-
tion of Mr. Jones’s rights was inadmissible. It is also true that
the trial court’s ruling was problematic. Although “[g]enerally
speaking, evidence obtained pursuant to an unlawful seizure
must be excluded under the fruit of the poisonous tree doc-
trine,” the burden is initially on the defendant to show “that
the evidence was a ‘fruit’ of that search,” that is, that the
evidence was derived from the constitutional violation. Clark
v. State, 994 N.E.2d 252, 266 (Ind. 2013). Therefore, the burden
was on Mr. Jones to establish that the evidence he sought to
suppress, namely his incriminating statements to the police,
was “derivatively gained as a result of information learned or
leads obtained” from the seizure of the clothing. Id. The state
trial court, therefore, should not have pretermitted
Detective Benner’s testimony, which had the potential to tie the
allegedly illegal seizure of the clothing and shoes to Mr. Jones’s
statements the following day.
    At the trial court level, however, this misstep did not play
a part in the court’s decision. In denying postconviction relief,
the state trial court did not reach the question of whether there
was a relationship between the seizure of the shoes and
Mr. Jones’s statements because it concluded that Mr. Jones
voluntarily had surrendered the clothing.32 Therefore, contrary
to his assertion, Mr. Jones did not prevail on his claim before
the trial court: He did not persuade the trial court that the
seizure of his shoes was illegal and that the seizure tainted the
trial process. The trial court disagreed with Mr. Jones with

32
     See supra at 10.
28                                                               No. 12-3245

respect to the illegality and, consequently, did not reach the
question of nexus.
    When Mr. Jones appealed, he had to convince the Court of
Appeals of Indiana that he was entitled to relief. Specifically,
he had to establish that the seizure of his shoes was in violation
of Pirtle and that his subsequent inculpatory statements were
the result of Detective Benner’s failure to observe the strictures
of Pirtle. Therefore, in making his arguments to the appellate
court, it was incumbent upon Mr. Jones to address both the
trial court’s ruling on the scope of Pirtle as well the trial court’s
error that impeded him from developing a record that he was
prejudiced by the Pirtle violation.
    Mr. Jones failed with respect to this second burden. He did
not attempt to explain how his statements—made the day after
he had surrendered his clothing to Detective Benner, after
additional Miranda warnings had been given, and long before
the laboratory tests on his shoes were completed—were
“fruits” of the “poisonous” seizure of his shoes. Notably, he
never invited the appellate court’s attention to the specific
error by the trial court that, in his view, prevented him from
establishing this point.33 Instead, he merely asserted, without

33
   Before this court, Mr. Jones has invited our attention to that portion of
the state postconviction proceedings in which he attempted to establish the
connection between the Pirtle violation and his inculpatory statements
through the testimony of Detective Benner. See supra at 25-26. We note,
however, that Mr. Jones also testified during the postconviction proceed-
ings. See supra at 9. In that testimony, Mr. Jones stated that he “believed that
because my … shoes were taken in violation of my right, Fourth Amend-
ment right, or possible Sixth Amendment right, that all the evidence learned
                                                                   (continued...)
No. 12-3245                                                                  29

argument or elaboration, that the statements were inadmissible
as fruits of the poisonous tree: “Those incriminating statements
were the poisonous fruits of the illegal, warrantless seizure of
Jones’s clothes and shoes. Challenging the warrantless seizure
of the clothes and shoes would also preclude the admissibility
of the statements.”34 In light of this omission, we cannot fault


33
    (...continued)
or gained from that illegal conduct is tainted and should have been
excluded.” Postconviction Tr. 262. Mr. Jones, however, did not offer any
additional testimony explaining how the two were related, i.e., why
Detective Benner’s seizure of his shoes prompted him to make inculpatory
statements. Thus, even if Mr. Jones had argued to the state appellate court
that the trial court erred in curtailing his examination of Detective Benner,
it is not clear that the trial court’s action prevented him from establishing
a connection between the allegedly illegal seizure and his later statements.

34
     R.23-6 (Mr. Jones’s postconviction appellate brief) at 29. There are two
other references to the fruit of the poisonous tree doctrine in Mr. Jones’s
brief to the Court of Appeals of Indiana. Neither helps to establish the
connection between the seizure of Mr. Jones’s shoes and his subsequent
statements to police. First, in the facts section of his brief, Mr. Jones states
that, the day following his arrest, “Detective Benner returned to question
Jones again. Jones was confronted with evidence obtained from the shoes,
to wit; matched shoeprints and invisible traces of blood, which Jones was
compelled to explain (R.162-165). Jones then made incriminating statements
and was arrested and charged for Alexander’s murder.” Id. at 12. Mr. Jones-
’s citation to the relevant portions of the postconviction transcript, however,
references testimony by one of his attorneys, and that testimony concerns
the reasons why he did not object to the shoes and laboratory report. That
testimony does not establish, indeed even mention, what may have
prompted Mr. Jones to give statements to the police on April 11, 2002.
   The second mention of the connection between the shoes and the
statement is set forth in Mr. Jones’s “Summary of the Argument,” in which
                                                                  (continued...)
30                                                             No. 12-3245

the Court of Appeals of Indiana for determining that the
cursory argument presented to it failed to meet Mr. Jones’s
burden.
    By determining that Mr. Jones had not established that the
admission of inculpatory evidence was the result of any Pirtle
error, the Court of Appeals of Indiana reasonably concluded
that the second, so-called prejudice prong of Strickland had not
been satisfied. Consequently, on habeas review, we cannot
conclude that Mr. Jones was prejudiced by any failure of his
trial counsel.
    Accordingly, the district court correctly determined that
Mr. Jones has not met his burden of establishing his statutory
eligibility for federal habeas relief.



34
   (...continued)
he states:

        Trial counsel[] failed to try to suppress inculpatory
        evidence and failed to object to its admission at trial. While
        in custody, Jones was subjected to an unlimited search
        without being told that he had the right to confer with
        counsel before allowing his clothes and shoes to be seized.
        After scientific testing of Jones’s shoes implicated him in
        the murder, the police confronted him with that evidence
        during a second custodial interrogation and Jones made
        incriminating statements.

Id. at 14. As a factual matter, however, Mr. Jones is incorrect. The scientific
testing of his shoes was not completed until long after his statements to the
police: He gave his statements on April 11, 2002, and the laboratory report
is dated February 27, 2003.
No. 12-3245                                          31

                        Conclusion
   For these reasons, the judgment of the district court
denying the petition for habeas relief is affirmed.
                                             AFFIRMED
