225 F.3d 784 (7th Cir. 2000)
Sherman Howard, Petitioner-Appellant,v.Richard Gramley, Respondent-Appellee.
No. 97-1881
In the  United States Court of Appeals  For the Seventh Circuit
Argued November 10, 1999Decided August 23, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 94 C 1246--Ruben Castillo, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Posner, Rovner, and Diane P. Wood, Circuit  Judges.
Diane P. Wood, Circuit Judge.


1
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.


2
* 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.


3
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.


4
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).


5
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.


6
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.


7
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).


8
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.


9
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.

10
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


11
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.


12
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.


13
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.

14
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.


15
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).


16
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.


17
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.

18
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.


19
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.


20
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.


21
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 cannotsay appellate counsel's decision not to give it  a try was prejudicial.

D.

22
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.


23
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.


24
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

25
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.



Note:


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.


