                              In the

United States Court of Appeals
                 For the Seventh Circuit

Nos. 06-2768 & 06-3281

W ILLIE P OLE,
                                                Petitioner-Appellant,
                                  v.

A USTIN R ANDOLPH, Acting Warden
of Logan Correctional Center,
                                                Respondent-Appellee.


            Appeals from the United States District Court
        for the Northern District of Illinois, Eastern Division.
            No. 02 C 3393—Charles R. Norgle, Sr., Judge.



      A RGUED S EPTEMBER 21, 2007—D ECIDED JULY 7, 2009




  Before E ASTERBROOK, Chief Judge, and K ANNE and
R OVNER, Circuit Judges.
   R OVNER, Circuit Judge. Willie Pole was convicted of
first degree murder and attempted armed robbery in
the State of Illinois. He appeals the denial of his petition
for a writ of habeas corpus, arguing that his attorney pro-
vided ineffective assistance at his trial and on appeal.
We affirm the district court’s denial of his petition.
2                                  Nos. 06-2768 & 06-3281

                            I.
   We begin with the facts as presented at trial. Bernard
Jackson went to work on September 27, 1994, even though
it was his day off. Accompanied by his girlfriend,
Carmania Payton, and his seven-year-old son, Terrence,
he hoped to earn some extra money at the E & J Tire
Service shop where he worked with his brother, Larue.
Bernard arrived at the shop a few hours before its 7 p.m.
closing time, joining his brother and another worker,
Antoine Patillo. Patillo left work a little early that day
and shortly after he left, Willie Pole arrived at the shop
looking for him. Pole asked Larue where Patillo was, and
Larue told him Patillo had just left. As the two men
were talking, a red van pulled into the shop. Three men
in the van wanted to exchange the van’s tires with re-
placements they were carrying in the back of the vehicle.
Even though the shop’s owner was about to close for
the day, Bernard offered to stay and change the tires.
While Bernard waited on the men in the van, Pole
asked Larue whether the three men were members of the
Gangster Disciples street gang. Larue replied that he did
not know. Pole then used a payphone at the shop to
make a call, and Larue left work to go to a nearby store.
The shop’s owner went to a business next door to the
tire shop, leaving Bernard to work on the van.
  Pole was a member of the Blackstone gang, a rival of
the Gangster Disciples. After making a phone call, he
left the shop and met up with other members of the
Blackstones, including Ramon Hamilton. He told
Ramon about the Disciples at the tire shop, and they
Nos. 06-2768 & 06-3281                                  3

hatched a plan to rob the Disciples of their jewelry. They
drove past the shop to verify that the men were still
there, and made gang signs identifying themselves and
disparaging their rivals. They parked and began to ap-
proach the tire shop through the alley behind it. Pole
pulled up his hood to hide his face. Ramon carried a
handgun and wore a ski mask.
  Two of the men that Pole believed were Disciples were
standing near the van at the time. The third was inside
the shop. Carmania Payton and Terrence were also stand-
ing near the van, a few feet away from Bernard as he
worked to change the tires. The shop’s owner was just
returning because someone had come to tell him there
was going to be trouble at the shop. After asking
Bernard if everything was alright, the shop’s owner
turned to walk away. As he turned, he heard a gunshot.
Although Pole now denies that he pulled the trigger, he
later told the police that Ramon showed him how to
release the safety, and he pointed the gun at the
Disciples standing near the van and fired. He was
standing forty or fifty feet away from his target at the
time. The badly aimed bullet struck Bernard in the
back and exited through his chest. He fell to the ground
in front of his girlfriend and son, exclaiming, “I think
I’m hit.” The shop’s owner called for everyone to get
down. Willie Pole and Ramon Hamilton fled the scene.
When everything appeared to be clear, everyone stood
up except Bernard.
  Pole placed the gun in his car, but then abandoned the
car. He and Ramon fled in separate directions. Larue
4                                   Nos. 06-2768 & 06-3281

returned to a frantic scene. The police and an ambulance
were summoned, and Bernard was pronounced dead at
a nearby hospital less than an hour later. Larue and
other witnesses at the scene told the police about Pole’s
visit to the shop, his inquiry about the men in the van,
and the car that drove by flashing gang signs before
the shooting. The police began to look for the car. At
about this same time, Pole showed up at Ramon Hamil-
ton’s house. Ramon’s twelve-year-old sister, Andrea
Hamilton, answered the door. Pole asked her to walk
with him to retrieve his car because there were police in
the area. As Andrea and Pole walked to the car, they
met Karen Wills, a friend of Andrea’s, and she joined
them in the walk back to the car. When they got to the
car, Pole removed a gun and a glove from the car and
handed them to Andrea, asking her to hide them for
him. He told her he had shot a “Sipe,” i.e., a Disciple, and
he instructed her to place the gun in the front of her
pants. All three entered the car and Pole drove Andrea
home. Andrea hid the gun, still loaded except for the
single spent bullet, in a drawer and placed the glove on
her dresser. After dropping Andrea off, Pole told Karen
Wills that he had confronted some Disciples and fired
a shot at them.
  Two police officers spotted Pole and Wills shortly
thereafter, in a car matching the description given by
witnesses to the crime. They took the two into custody
and at approximately 8:30 p.m., witnesses from the tire
shop confirmed that Pole was the man who had asked
about the alleged Disciples and then flashed gang
signs shortly before the shooting. Wills told the police
Nos. 06-2768 & 06-3281                                 5

that she did not know what was going on, but that Pole
had given a package to Andrea Hamilton. Pole and
Wills then led the police to the Hamilton home. In the
meantime, Ramon Hamilton had arrived home and
learned that Pole had asked Andrea to hide the gun.
Ramon took the gun from Andrea’s drawer and hid it
outside his house. When the police arrived, Andrea told
them she had given the gun to Ramon, who subse-
quently handed over to the police officers both the gun
and the glove. Pole’s name was written on the glove. The
officers took Pole, Wills, Ramon and Andrea Hamilton
and the Hamiltons’ mother, Bonnie, to the police station
for questioning.
  Two officers questioned Pole at first. He told them he
had gone to the tire shop to see Patillo, who owed him
some money. After he saw the three men he believed
were Gangster Disciples, he went around the corner and
told some of his cohorts from the Blackstones that there
were “Sipes” at the tire shop. The Blackstones got into
two cars and drove past the tire shop. Pole told the
officers that, at Ramon’s suggestion, the Blackstones
decided to rob the Disciples. Ramon retrieved a gun
from his house, and Pole told the officers he went along
because he was considered a “pigeon” or a “white boy”
among the Blackstones and he wanted to prove himself.
In this first statement, Pole told the police that Ramon
was showing him how to work the safety on the gun
when it accidentally discharged in the direction of the
van. Pole told the officers that he panicked and ran.
  After questioning Ramon, the officers came back to Pole
and told him his story did not match Ramon’s version
6                                   Nos. 06-2768 & 06-3281

of events. Pole then told the officers a story similar to his
first account, but this time stated that Ramon was
wearing a ski mask, and that Ramon directed Pole to
put up his hood as they walked through the alley toward
the back of the tire shop. In this second version, Pole
admitted that he pointed the gun at the men near the
van and fired a single shot before fleeing.
  The police officers and an assistant state’s attorney
(“ASA”), Tom Biesty, then interviewed Andrea and
Ramon Hamilton, and Karen Wills as well, taking
written statements from each before returning to Pole to
record his statement. 1 ASA Biesty took Andrea Hamilton’s
statement at 1:30 a.m., and she confirmed that Pole had
asked her to walk to the car with him. She reported
that Pole told her he had shot someone at the tire shop,
and that they met up with Karen Wills on the way to
Pole’s car. She said that Pole asked her to hide the gun
and glove once they reached the car. She had given the
gun to her brother Ramon when he came home asking
about it. Both Andrea and Bonnie Hamilton signed each
page of Andrea’s statement.
  At 4:20 a.m., approximately nine hours after the
shooting, ASA Biesty recorded Ramon’s statement.
Ramon told Biesty that Pole came to his house after



1
  Karen Wills’ statement is not part of the record on appeal
but Pole seems to concede that her trial testimony was con-
sistent with her written statement. Bonnie Hamilton was
present for the questioning of both Ramon and Andrea because
they were minors.
Nos. 06-2768 & 06-3281                                7

spotting the Gangster Disciples at the tire shop. Pole
asked Ramon for a gun so that he could rob the
Blackstones of their jewelry. Ramon and Pole drove past
the shop in separate cars, Ramon with three other
Blackstones—Lontray, Thaddeus and Thomas—and Pole
driving behind them in his own car. The group flashed
gang signs and then parked in the alley behind the
shop. Ramon released the safety on the gun at Pole’s
request, and Pole then walked toward the shop and
fired a shot at the Disciples. The two fled in different
directions but met up again later. Pole told Ramon that
he had given the gun to Andrea. Ramon went home
and retrieved the gun from Andrea and hid it near the
side of his house. Both Ramon and his mother, Bonnie
Hamilton, signed each page of his statement.
   ASA Biesty then met with Pole to take his statement.
The shooting had occurred between 7 and 8 p.m., and it
was now 6:45 a.m., approximately eleven hours after
Pole had been taken into custody. As ASA Biesty later
testified, he sat next to Pole, read him his rights, and
wrote out Pole’s statement by hand. Biesty had Pole
read back to him the first paragraph of the statement to
make certain that Pole could read and understand it. In
the statement, Pole admitted he was a member of the
Blackstone gang. He told Biesty that after seeing the
three men at the tire shop, he went to Ramon’s house
and met with Ramon, Lontray, Thaddeus and Thomas,
fellow Blackstones that Pole identified only by their
first names. Ramon suggested that they rob the Disciples
of their jewelry. Ramon told the group that he had a
gun. Pole told ASA Biesty that he took the gun from
8                                  Nos. 06-2768 & 06-3281

Ramon and that they then drove up to the alley behind
the tire shop. There, Pole put on a white work glove
marked with his name, the same glove later retrieved
from Ramon’s house. He pulled up the hood of his sweat-
shirt and Ramon put on a ski mask. They agreed that
Pole would hold the gun on the Disciples while Ramon
searched their pockets and took their jewelry. Pole
asked Ramon to take the safety off the gun, and Ramon
complied. Pole told ASA Biesty that he “popped a round
off” at the Disciples and that he and Ramon then fled.
Pole said that he returned to his car with Andrea, told
her he had “popped” some Disciples, and asked her to
hide the gun and glove. Pole signed each page of the
statement and also initialed a change in the spelling of
Ramon’s name.
  Ramon pled guilty to murder and attempted armed
robbery, but Pole went to trial. Pole’s attorney moved to
suppress any oral or written statements that Pole made
the night he was arrested, claiming that he was not read
his rights prior to interrogation, that his statements were
not made knowingly or voluntarily, that his lengthy
interrogation continued after he invoked his right to
remain silent and his right to an attorney, that his state-
ments were the result of physical and psychological
coercion, that his statements were provoked by con-
fronting him with evidence obtained in violation of the
Fourth Amendment, and that authorities lied to Pole in
violation of the Fifth and Fourteenth Amendments. Coun-
sel sought and obtained a hearing on the motion to sup-
press. At the hearing, the State presented testimony
from the police officers involved in Pole’s arrest and
Nos. 06-2768 & 06-3281                                  9

interrogation, and ASA Tom Biesty, all of whom refuted
Pole’s allegations. Pole’s attorney did not call Pole as a
witness and presented no evidence at the hearing,
relying entirely on cross-examinations of the state’s
witnesses to make his case. He argued that Pole was only
eighteen years of age at the time of the interrogation,
had limited education, had never been interrogated
before, was in custody for many hours before he signed
the confession and did not give the statement voluntarily.
The court found that the state’s witnesses were credible,
that Pole had been apprised of his rights prior to inter-
rogation and that there was no evidence of coercion. The
court denied the motion to suppress.
  At the trial, Andrea Hamilton testified consistently
with her signed statement. Karen Wills testified that she
had encountered Pole and Andrea when she was
walking home on the day of the murder. She went with
them to retrieve Pole’s car. When they arrived at the car,
she saw Pole give Andrea a black, metal object, and
heard him ask Andrea to “put it up” for him. After drop-
ping off Andrea at her home, Pole told Karen Wills he
had “gotten into it” with some Disciples and that he had
shot at them. Wills testified that shortly thereafter, she
and Pole were stopped by the police. After Wills told the
officers she had seen Pole give something to Andrea, the
police officers drove the pair to Andrea’s house. The
officers later emerged from the house with all three
Hamiltons.
  Pole’s written confession was entered into evidence,
and the officers and ASA Biesty testified about Pole’s
10                                 Nos. 06-2768 & 06-3281

oral and written admissions made within hours of the
murder. A forensic investigator for the police depart-
ment testified that no physical evidence was found at
the scene, a gunshot residue test of Pole’s hands was
taken but he did not know the result, and no bullet
had been recovered because it had passed through the
victim’s body, exiting his chest. One of the officers
testified that he found a shell casing matching the gun
in the grass near the scene. Pole’s attorney argued to the
jury that the shooting was accidental, that no robbery
was intended and no steps had been taken towards a
robbery, and that the gun had discharged unexpectedly
while the safety was being manipulated. The attorney
successfully argued over the prosecution’s objection
that the jury should be instructed on involuntary man-
slaughter as an alternative to murder. This was not a
small victory given that Pole was charged with murder
and attempted armed robbery, allowing the state to
argue that he either intentionally shot at the Disciples or
that Bernard Jackson was killed in the course of another
felony. Under the felony murder theory, Pole’s argument
that he did not intentionally shoot at Bernard Jackson
would not have entitled him to an involuntary mans-
laughter instruction unless there was some evidence
that he did not intend to commit robbery together
with evidence that the shooting was accidental. Except
for Pole’s initial statement to the police, there was no
evidence in the record supporting an involuntary man-
slaughter charge. The court called it a close issue, but
gave Pole the benefit of the doubt and issued the invol-
untary manslaughter instruction. Perhaps because Pole
Nos. 06-2768 & 06-3281                                 11

had confessed to at least five different people within
twelve hours of the murder and had signed a written
statement detailing his actions that night, the jury had
little trouble returning a verdict finding him guilty of
murder and attempted armed robbery.
  When the ink was barely dry on the verdict form, Pole
began complaining at his sentencing hearing that he did
not commit the crime, that his attorney failed to place
into evidence reports that no gunshot residue was
found on his hands or his glove, that he had wished to
testify but had deferred to his lawyer’s judgment out of
fear, and that he had been manipulated and coerced
into signing a confession. He claimed he had been led to
believe that the state’s attorney was there to help him,
and that he was young, inexperienced and exhausted
when he signed the confession. The court rejected Pole’s
claim of innocence and sentenced him to forty-four
years of imprisonment on the murder charge and fifteen
years on the attempted armed robbery conviction, to be
served concurrently.


                           II.
  In his direct appeal, Pole argued that the trial court
failed to adequately inquire into his post-trial complaint
that his lawyer had failed to call a witness with exculpa-
tory evidence. He also contended that the trial court
had erred in allowing the jury to hear evidence re-
garding Pole’s membership in a street gang. The exculpa-
tory evidence, Pole explained, consisted of two favorable
gunshot residue tests. Pole contended that the swabs of
12                                 Nos. 06-2768 & 06-3281

his hands and tests of the glove were negative for
gunshot residue, and that the trial court should have
conducted an inquiry into his charge at sentencing that
his attorney failed to put into evidence the negative
gunshot residue test reports. Pole did not submit those
reports with his appeal. The appellate court noted that
Pole had not adequately raised the issue of ineffective
assistance of counsel because he did not request new
counsel and filed no pro se post-trial motion. The court
nevertheless considered the merits of Pole’s claim, and
determined that counsel’s strategy was to inform the
jury that the gunshot residue test was conducted but
that the prosecutor had not presented the results, leaving
the jury to infer the reports would have been favorable
to Pole. The appellate court continued that even if the
attorney erred in not going farther with this evidence or
the trial court erred in not pursuing Pole’s allegation
about his lawyer, there was no reasonable probability
that the outcome of the trial would have been any differ-
ent had this evidence been admitted. The court noted
that the gunshot residue tests held little evidentiary
value in light of Pole’s signed confession and the other
ample evidence against him. Because the court did not
know the test results for Pole’s hands or the glove, and
because the other evidence of his guilt was over-
whelming, the court concluded that Pole had failed to
show prejudice from the alleged errors.
  Addressing Pole’s claim that the court erred in ad-
mitting evidence of his gang membership, the appellate
court found that this evidence was highly relevant to the
crime charged because the shooting was alleged to be
Nos. 06-2768 & 06-3281                                     13

motivated by gang rivalry. One of the three men in the
red van had been wearing the colors of the Gangster
Disciples, and Pole had asked Larue about the men’s
gang affiliation shortly before the shooting. Moreover,
Pole had confessed to a police officer that he went to
confront the Disciples because the Blackstones con-
sidered him a “pigeon” or a “white boy” and he wanted to
prove himself to his fellow gang members. Finally, the
court rejected Pole’s argument about the gang affiliation
evidence because the state had used the evidence only
for proper purposes throughout the trial. The appellate
court therefore affirmed Pole’s conviction. The Illinois
Supreme Court declined to hear Pole’s case on direct
appeal.
  Pole then filed a pro se petition for post-conviction
relief in the state court, citing three grounds for relief.
First, he contended that his trial attorney was ineffective
for failing to present witnesses at the hearing on the
motion to suppress and for not allowing Pole himself to
testify at the motion to suppress. Second, he argued that
his trial counsel was ineffective because he failed to
investigate exculpatory witnesses and eyewitnesses to
the crime, and did not allow Pole to testify in his own
defense. Third, he claimed that his appellate counsel
was also ineffective for failing to raise in his direct appeal
the issues he was now raising in his post-conviction
petition. He filed numerous statements in support of his
post-conviction petition including three affidavits of his
own (R. 13, at C51, C57 and C61), an affidavit from
Andrea Hamilton (R. 13, at C72), an affidavit from Ramon
14                                    Nos. 06-2768 & 06-3281

Hamilton (R. 13, at C63),2 an affidavit from Bonnie Hamil-
ton (R. 13, at C78), and statements from his mother (R. 13,
at C83), sister (R. 13, at C84 and C85), and a fellow inmate
(R. 13, at C81) supporting his requests for relief. The circuit
court dismissed the petition without an evidentiary
hearing and Pole appealed.
  The Illinois Appellate Court took up Pole’s case for a
second time. In response to the state’s argument that
Pole had waived the arguments he was now raising, the
court relaxed the rule for waiver because Pole claimed
ineffective assistance both at trial and on appeal. The
court therefore decided to address Pole’s arguments on
their merits. On the ineffective assistance claim based on
counsel’s performance at the suppression hearing, the
appellate court reviewed the hearing transcript and
determined that the claim was without merit. Specifically,
the court noted that defense counsel’s strategy was to
paint his client as so young, inexperienced and naive
about the justice system that his confession was invol-
untary. To that end, he cross-examined the state’s wit-
nesses and argued his position to the court. The court
found that counsel’s conduct was not substandard.
  In addressing Pole’s claim that his trial lawyer failed
to investigate the case by failing to locate and call two
eyewitnesses, Ramon Hamilton and Lontray, the court



2
  Like Pole, Ramon signed a confession in the early morning
hours of September 28, 1994, fewer than twelve hours after the
murder. Ramon executed his affidavit more than four years
later, in November 1998.
Nos. 06-2768 & 06-3281                                  15

opined that there was no factual basis to support the
claim. The court concluded (erroneously, as it turns out)
that Ramon’s affidavit indicated that Ramon was not
present when the fatal shot was fired. Pole had not sub-
mitted an affidavit from Lontray. Because Ramon and
Lontray could not have provided testimony that would
have changed the outcome of the trial, the court found
the argument without merit. The court therefore
affirmed the dismissal of the post-conviction petition,
and the Illinois Supreme Court again declined to hear
the appeal.
  Pole then brought his case to federal court, seeking
habeas corpus relief based on ineffective assistance of
counsel. Pole listed two specific instances of ineffective
assistance of trial counsel: (1) counsel’s refusal to allow
Pole to testify at the hearing on the motion to suppress;
and (2) counsel’s failure to adequately investigate his
case. Pole contended that the motion to suppress was
critical to his case because a signed, written statement
implicating him in the shooting was the state’s best
evidence. Indeed, Pole argued, the prosecution had no
physical evidence linking him to the crime and presented
no eyewitnesses who could identify the shooter. More-
over, there was no real down side to Pole testifying, and
no chance of winning the motion without Pole’s testi-
mony. Only he could have provided evidence that he was
tricked into signing the confession because he was ex-
tremely tired and high on marijuana, according to Pole.
He also argued that there was no strategic reason for
the failure to call him as a witness at the suppression
hearing. In explaining counsel’s inadequate investiga-
16                                   Nos. 06-2768 & 06-3281

tion, Pole noted that the affidavits he supplied constituted
new evidence that corroborated his account of the
shooting and undercut the state’s theory. The new evi-
dence, according to Pole, consisted of recantations of
testimony of two of the state’s witnesses. Finally, Pole
argued that his appellate lawyer should have raised
the ineffective assistance of counsel issue in his direct
appeal.
   The district court denied Pole’s habeas petition without
a hearing. The court adopted the factual findings of the
Illinois appellate court in its unpublished order deciding
the direct appeal. The court began by considering
whether Pole had adequately presented his federal
claims to the state courts because any claim not presented
to the state’s highest court is deemed procedurally de-
faulted. The court also noted that a federal court on
habeas review could not consider claims that a state
court had decided on state law grounds that were inde-
pendent of the federal question and adequate to
support the judgment. The court noted as an example of
this rule the issue of waiver, which is considered an
independent and adequate state law ground that bars
habeas relief. The court also noted, however, that waiver
bars federal review only when the last state court to
consider the question actually relied on procedural
default as the basis for its decision. Turning to Pole’s claim
of ineffective assistance of counsel, the court found
that Pole raised these issues in his direct appeal, that the
Illinois Appellate Court’s decision was based on independ-
ent state grounds adequate to support the judgment, and
Nos. 06-2768 & 06-3281                                          17

that the issues were therefore procedurally barred under
28 U.S.C. § 2254.3
  The court nonetheless considered the issues on their
merits. The court rejected Pole’s claim that his attorney
was deficient for failing to call him as a witness at the
critical suppression hearing, instead relying on the
state’s witnesses. According to Pole, it was unreasonable
to expect the state’s witnesses to support Pole’s version
of events. But the court declined to second-guess
counsel’s strategic decision to rely on cross-examination
and not present Pole as a witness. As for Pole’s complaint
that trial counsel failed to investigate his case, the
district court found the supporting affidavits insuffi-
cient. Repeating the error that the Illinois Appellate
Court made in deciding the post-conviction appeal, the
district court found that Ramon’s affidavit indicated he
was not present at the time of the shooting, and that
information supplied by Ramon would not have
changed the outcome of the trial, negating any claim of



3
   This finding is puzzling because the only issues Pole raised in
his direct appeal were related to the failure of his attorney to
bring in evidence of the favorable gunshot residue tests and the
trial court’s decision to allow evidence of his gang affiliation.
Perhaps the district court meant to refer to the Illinois Appellate
Court’s decision on the appeal of the dismissal of Pole’s post-
conviction petition, where Pole did raise many of the issues
he raises here. However, the Illinois Appellate Court expressly
declined in that decision to apply waiver to Pole’s claims, and
therefore the decision was not based on independent state
grounds adequate to support the conviction.
18                                  Nos. 06-2768 & 06-3281

ineffective assistance. Finally, because the district court
had already concluded that trial counsel was not ineffec-
tive, the court also rejected Pole’s claim that his appellate
counsel was ineffective for failing to raise the issue of
trial counsel’s ineffectiveness. The court therefore denied
Pole’s petition.
   Within ten days, Pole filed a pro se motion for recon-
sideration, again claiming ineffective assistance of counsel.
While that motion was pending, Pole filed a notice of
appeal from the court’s order denying his petition. He
also requested a certificate of appealability from the
district court. The court granted the certificate of appeal-
ability and then dismissed the motion to reconsider. The
court found that it lacked jurisdiction over the motion
to reconsider because it was an unauthorized attempt to
litigate a successive collateral attack on his sentence
without the permission of the court of appeals. Pole then
filed an amended notice of appeal that added the denial
of the motion to reconsider, and requested that this court
grant a certificate of appealability with respect to that
claim. In an Order issued on January 18, 2007, we found
that the district court erred in characterizing the motion
to reconsider as a successive habeas petition. We held that
the district court should have treated the motion as a
timely filed motion for reconsideration and decided it on
the merits. We therefore amended the certificate of
appealability granted by the district court to include
the denial of the motion for reconsideration and consoli-
dated his appeal of the denial of the motion to recon-
sider with his original appeal of the denial of his petition.
Nos. 06-2768 & 06-3281                                    19

See generally Pole v. Firkus, Case Nos. 06-2768 & 06-3281,
Order (7th Cir. Jan. 18, 2007). We now consider Pole’s
appeals.


                            III.
  On appeal, Pole contends that he is entitled to habeas
relief because his lawyer’s assistance did not satisfy
constitutional minimums. Pole now cites five instances
of counsel’s errors: (1) the failure to introduce the results
of the gunshot residue tests; (2) the failure to interview or
call Ramon Hamilton, an eyewitness whose testimony
would have exonerated Pole; (3) the failure to interview
key prosecution witnesses; (4) the failure to interview or
call other identified eyewitnesses; and (5) the failure to
call Pole to testify at the suppression hearing. Pole also
maintains that the district court erred in concluding
that his entitlement to habeas relief is procedurally barred.
The state counters that Pole forfeited any argument that
the state court unreasonably interpreted Ramon Hamil-
ton’s affidavit. Moreover, the state adds, Pole’s habeas
petition argued only two operative facts in support of his
ineffective assistance claim, forfeiting or procedurally
defaulting all others including his contention about coun-
sel’s failure to present the gunshot residue evidence.
Addressing Pole’s remaining claims for ineffective assis-
tance individually and as a whole, the state posits that
Pole has not met his burden of demonstrating that coun-
sel’s performance fell below constitutional minimums.
20                                    Nos. 06-2768 & 06-3281

                              A.
  We must begin by sorting out the appropriate
standards of review and whether certain claims have
been waived or procedurally defaulted. Our review of the
district court’s decision to deny Pole’s habeas petition is
de novo, and is governed by the terms of the Antiterrorism
and Effective Death Penalty Act (“AEDPA”). Mack v.
McCann, 530 F.3d 523, 533 (7th Cir. 2008); Julian v. Bartley,
495 F.3d 487, 491-92 (7th Cir. 2007). See also Jackson v.
Frank, 348 F.3d 658, 661 (7th Cir. 2003); 28 U.S.C. § 2254.
“Habeas relief must not be granted unless the state
court’s adjudication of the claim (1) resulted in a decision
that was contrary to, or involved an unreasonable ap-
plication of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreason-
able determination of the facts in light of the evidence
presented in the State court proceeding.” Julian, 495 F.3d
at 492. See also Jackson, 348 F.3d at 662; 28 U.S.C. § 2254(d).
“In assessing the reasonableness of the state court’s
decision, the federal court assumes that the state court’s
factual determinations are correct unless the defendant
rebuts them with clear and convincing evidence.” Julian,
495 F.3d at 492. See also 28 U.S.C. § 2254(e)(1).
  The Supreme Court set forth the legal principles that
govern claims of ineffective assistance of counsel in
Strickland v. Washington, 466 U.S. 668 (1984). See also
Wiggins v. Smith, 539 U.S. 510 (2003). “An ineffective
assistance claim has two components: A petitioner must
show that counsel’s performance was deficient, and that
Nos. 06-2768 & 06-3281                                       21

the deficiency prejudiced the defense.” Wiggins, 539 U.S.
at 521 (citing Strickland, 466 U.S. at 687). To demonstrate
that counsel’s performance was deficient, a “defendant
must show that counsel’s representation fell below an
objective standard of reasonableness.” Strickland, 466
U.S. at 688; Wiggins, 539 U.S. at 521. That objective stan-
dard of reasonableness, in turn, is determined by prevail-
ing professional norms. Strickland, 466 U.S. at 688;
Wiggins, 539 U.S. at 521.
  To demonstrate prejudice from counsel’s deficient
performance, a “defendant must show that there is a
reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. If a defendant is unable to
make a sufficient showing on either component of the
Strickland standard, we need not consider the other compo-
nent. Strickland, 466 U.S. at 697. See also Pearson v. Callahan,
129 S. Ct. 808, 821 (2009) (reaffirming the holding of
Strickland that leaves to the sound discretion of the
lower courts to determine the order of deciding the
two components).
  “[I]neffective assistance of counsel is a single ground
for relief no matter how many failings the lawyer may
have displayed.” Peoples v. United States, 403 F.3d 844, 848
(7th Cir. 2005). We assess counsel’s work as a whole, and
“it is the overall deficient performance, rather than a
specific failing, that constitutes the ground of relief.” Id.
Under Section 2254’s exhaustion requirement, the peti-
22                                    Nos. 06-2768 & 06-3281

tioner must assert his federal claim through one com-
plete round of state-court review, either on direct appeal or
in post-conviction proceedings. See § 2254(b)(1)(A); Stevens
v. McBride, 489 F.3d 883, 894 (7th Cir. 2007), cert. denied,
128 S. Ct. 2429 (2008); Lewis v. Sternes, 390 F.3d 1019, 1025
(7th Cir. 2004). Adequate presentation of a claim to the
state courts requires the petitioner to present both the
operative facts and the legal principles that control each
claim. Stevens, 489 F.3d at 894. See also Thompson v. Battaglia,
458 F.3d 614, 616 (7th Cir. 2006) (noting that the Rules
Governing Section 2254 Cases in the United States District
Courts require a petitioner to specify all grounds of relief
available to him and the facts supporting each ground).
Thus, if a petitioner fails to assert in the state courts a
particular factual basis for the claim of ineffective assis-
tance, that particular factual basis may be considered
defaulted. Stevens, 489 F.3d at 894 (“the failure to alert
the state court to a complaint about one aspect of
counsel’s assistance will lead to procedural default”).


                               1.
  Acknowledging these familiar standards, the state
asserts there is a “wrinkle” in determining the correct
standard of review here. The state notes Pole’s argument
that both the state appellate court and the district court
described Ramon Hamilton’s affidavit inaccurately, and
that, according to Pole, this was an unreasonable deter-
mination of the facts in light of the evidence presented
in the state court proceeding under § 2254(d)(2). Although
conceding that both courts did, in fact, read the affidavit
Nos. 06-2768 & 06-3281                                     23

incorrectly, the state argues that Pole forfeited any claim
under § 2254(d)(2) regarding Ramon’s affidavit by failing
to preserve it in the district court. The state further main-
tains that, even if Pole adequately preserved the issue
in the district court, we should nevertheless apply
§ 2254(d)(1) deference to the portions of the state court
analysis that were unaffected by the state appellate
court’s factual findings regarding Ramon Hamilton’s
affidavit.
  We consider the claim of forfeiture first. Looking to
Pole’s pleadings in the district court, we note first that, in
his habeas petition, Pole correctly described Ramon’s
affidavit in detail and attached it to his petition. R. 1-1.
In his brief on the habeas petition, he argued that the
state court “erroneously concluded that Ramon’s
affidavit did not place him at the scene.” R. 31, at 14.
After quoting Ramon’s affidavit to illustrate the state
court’s error, Pole’s counsel argued that this “gross mis-
representation of the contents” of Ramon’s affidavit, in
combination with the other affidavits submitted, proved
that the state court unreasonably applied the facts. Later,
when it became apparent that the district court had
nonetheless made the same mistake as the state appellate
court, Pole again pointed out the error in his motion
for reconsideration. We find that Pole adequately pre-
served for review his claim under § 2254(d)(2) that the
state appellate court misread Ramon’s affidavit, and its
decision was thus based, at least in part, on “an unreason-
able determination of the facts in light of the evidence
presented in the State court proceeding.”
24                                  Nos. 06-2768 & 06-3281

  As we noted, both the state and district courts con-
cluded from the affidavit that Ramon was not present at
the shooting. That conclusion was inexplicable. Ramon
stated in the affidavit that he brought the gun to the
confrontation and that it discharged as he and Lontray
both tried to take the gun from Thaddeus in order to set
the safety. R. 13, at C63, ¶¶ 11-15. By every account of the
crime, including the state’s version, Ramon was present
at the shooting. Indeed, Ramon pled guilty to the same
murder and attempted armed robbery charges that Pole
faced. Pole has thus clearly and convincingly rebutted
the determination that Ramon was not present at the
shooting. The question now is what effect that error has
on our review of Pole’s claims in general. The state posits
that, even if Pole preserved that claim, and we find that
he did, § 2254(d)(1) deference should still apply to any
part of the state court’s analysis that was not affected
by that error. Pole does not argue otherwise.
  In Wiggins, the Supreme Court analyzed a habeas claim
based on ineffective assistance of counsel where the
state court made a similar factual error in its analysis of
Wiggins’ claim. 539 U.S. at 528. Wiggins’ lawyer claimed
to have been aware of severe sexual abuse his client
suffered as a child, citing two documents the lawyer
possessed. The lawyer claimed that, based on the infor-
mation contained in these documents, he made an in-
formed and reasoned decision not to pursue the history
of abuse further or present it to the jury in mitigation at
sentencing. As the state conceded on appeal, however,
neither document contained any information about the
sexual abuse Wiggins suffered as a child. The Supreme
Court stated:
Nos. 06-2768 & 06-3281                                 25

   The state court’s assumption that the records docu-
   mented instances of this abuse has been shown to
   be incorrect by “clear and convincing evidence,” 28
   U.S.C. § 2254(e)(1), and reflects “an unreasonable
   determination of the facts in light of the evidence
   presented in the State court proceeding,” § 2254(d)(2).
   This partial reliance on an erroneous factual finding
   further highlights the unreasonableness of the state
   court’s decision.
Wiggins, 539 U.S. at 528. The Wiggins Court had other
grounds for finding counsel’s performance deficient
but clearly used this single factual error to support its
conclusion that the state court’s decision was unrea-
sonable under the standards of § 2254. We will therefore
consider the factual error regarding Ramon’s affidavit
in combination with his other claims in determining
whether the state court unreasonably applied Strickland
to the facts here. See Wiggins, 539 U.S. at 520 (“We have
made clear that the ‘unreasonable application’ prong of
§ 2254(d)(1) permits a federal habeas court to ‘grant the
writ if the state court identifies the correct governing
legal principle from this Court’s decisions but unreason-
ably applies that principle to the facts’ of petitioner’s
case.”).


                           2.
  Oddly, the state concedes in one part of its brief that
the gunshot residue claim was fairly presented to and
adjudicated by the state appellate court (Brief of
Respondent-Appellee, at 24, (7th Cir. Apr. 25, 2007)
26                                   Nos. 06-2768 & 06-3281

(hereafter “State’s Brief”)), but then later argues that Pole
procedurally defaulted the gunshot residue claim in the
state court (State’s Brief at 32-33). Fair presentment of an
issue requires a petitioner to put forward both the opera-
tive facts and the controlling legal principles. Sanders v.
Cotton, 398 F.3d 572, 580 (7th Cir. 2005). See also Baldwin v.
Reese, 541 U.S. 27, 32 (2004) (“ordinarily a state
prisoner does not ‘fairly present’ a claim to a state court
if that court must read beyond a petition or a brief (or a
similar document) that does not alert it to the presence
of a federal claim in order to find material, such as a
lower court opinion in the case, that does so.”). According
to the state, the state court held that Pole did not ade-
quately raise the issue of trial counsel’s ineffectiveness
for failing to present the gunshot residue results. R. 1-1,
Appx. 1, at A-9. On direct appeal, the state court indeed
said that Pole had not adequately raised the issue of
ineffective assistance related to the gunshot residue
evidence, but the court then nonetheless addressed
that claim on the merits. The court found that counsel
was not ineffective because he placed before the jury
the fact that the residue test had been taken and that
the prosecution had not put the results into evidence.
The state court found it was a reasonable strategy to
imply to the jury that the results favored Pole. Because
counsel on appeal also did not submit the results of the
gunshot residue test to the state appellate court, that
court also found that Pole failed to show prejudice from
counsel’s failure to place the actual test results before
the jury.
  Similarly, in post-conviction proceedings, the state
appellate court refused to treat the claim of ineffective
Nos. 06-2768 & 06-3281                                      27

assistance of trial counsel as waived because Pole had
also alleged ineffective assistance of appellate counsel.
The state post-conviction court thus addressed Pole’s
claim of ineffective assistance on the merits, expressly
finding that, under these circumstances, “strict applica-
tion of waiver should be relaxed to give defendant a
fair opportunity to present his argument.” People v. Pole,
No. 1-99-0858, at 4 (Ill. App. 1 Dist. April 13, 2001). That
Pole may have failed to abide by a state procedural
rule does not necessarily preclude this court from
hearing his claim. See Harris v. Reed, 489 U.S. 255, 262 (1989)
(“a federal claimant’s procedural default precludes
federal habeas review, like direct review, only if the last
state court rendering a judgment in the case rests its
judgment on the procedural default.”). “[T]he state court
must actually have relied on the procedural bar as an
independent basis for its disposition of the case.” Caldwell
v. Mississippi, 472 U.S. 320, 327 (1985). See also Harris,
489 U.S. at 261-62. The Supreme Court also set a “plain
statement” rule to govern the analysis of whether the
state court rested its judgment on a procedural default:
“[A] procedural default does not bar consideration of a
federal claim on either direct or habeas review unless
the last state court rendering a judgment in the case
‘clearly and expressly’ states that its judgment rests on a
state procedural bar.” Harris, 489 U.S. at 263 (quoting
Caldwell, 472 U.S. at 327). See also Smith v. Battaglia, 415
F.3d 649, 653 (7th Cir. 2005) (same); Sanders v. Cotton, 398
F.3d 572, 580 (7th Cir. 2005) (where the state appellate
court’s discussion of waiver is intertwined with its
merits analysis, the state court’s decision does not rest
28                                   Nos. 06-2768 & 06-3281

on an independent and adequate state law ground). The
state can point to no such statement here, and indeed
the last state court to consider the gunshot residue
issue expressly declined to rest on a procedural bar and
instead decided the issue on the merits. We therefore
decline to find that the claim was procedurally
defaulted in the state court.
   But the state is correct that Pole did not argue, in
either his habeas petition or his brief in the district court,
the issue of his lawyer’s failure to present the gunshot
residue test, and therefore forfeited it in federal proceed-
ings. See Martin v. Evans, 384 F.3d 848, 853 (7th Cir. 2004)
(a defendant who fails to present a specific ground of
trial counsel’s ineffectiveness in the district court has
waived the issue). See also Stevens, 489 F.3d at 894 (the
failure to alert a state court to a complaint about one
aspect of counsel’s assistance will lead to a procedural
default), Peoples, 403 F.3d at 848 (“one who makes and
loses a contention that counsel was ineffective for four
reasons cannot start over by choosing four different (or
four additional) failings to emphasize”). A party may not
raise an issue for the first time on appeal. Domka v.
Portage County, Wisconsin, 523 F.3d 776, 783 (7th Cir.
2008) (where a party raises a specific argument for the
first time on appeal, it is waived even though the “general
issue” was before the district court). Pole claims that
his filings in the district court were replete with
references to his lawyer’s failure to raise the results of
the gunshot residue tests. Simply referring to the
gunshot residue test, of course, is not enough to preserve
the ineffectiveness issue for review in this court. Kunz v.
Nos. 06-2768 & 06-3281                                     29

DeFelice, 538 F.3d 667, 681 (7th Cir. 2008) (failure ade-
quately to present an issue to the district court waives
the issue on appeal).
  Pole details his references to the gunshot residue test
in the district court in his reply brief on appeal. We
recount them here to demonstrate why we find the issue
forfeited. First, Pole states that the issue was raised in
the state appellate court’s decision on direct appeal and
that the state court’s decision, in turn, was “discussed” in
his federal habeas petition. In the habeas petition, Pole
complained that the state appellate court, in ruling on his
direct appeal, faulted him for failing to file a post-trial
motion claiming ineffective assistance, failing to request
appointment of new counsel, and making only a general
statement regarding the evidence he believed should
have been presented at trial. Pole then noted, “However,
the evidence Petitioner referred to was a ballistics report
that conclusively shows that no gunshot residue was
found on the gloves he allegedly was wearing when the
fatal shot allegedly was fired.” R. 1-1, at ¶ 72. This passage
in the habeas petition merely recounted the state court’s
ruling on direct appeal. But simply rehashing another
court’s ruling on the subject, without supplying sup-
porting facts and legal argument, is not enough to alert
the district court that he was raising this issue as a basis
for his claim of ineffective assistance. See Winsett v. Wash-
ington, 130 F.3d 269, 273-74 (7th Cir. 1997) (where the
only reference to the voluntariness of a confession in a
habeas petition is a recapitulation of the state trial court’s
ruling on the subject without facts or legal arguments
in support of a claim of involuntariness, the claim is
30                                  Nos. 06-2768 & 06-3281

waived). Second, in his habeas brief, Pole notes that he
filed affidavits in support of his post-conviction petition,
detailing what happened on the night of the shooting. He
recounts information from one of those affidavits: “Peti-
tioner was arrested later that night and taken to a police
station, where the police checked his hands for gun-shot
residue. The test proved negative.” R. 31, at 7. But Pole
utterly failed in the habeas brief to develop any legal
argument that his lawyer’s failure to put those results into
evidence constituted ineffective assistance. These two
mentions of the gunshot residue test were the only refer-
ences Pole made in the district court before the court
denied his petition.
  After the district court ruled against him, Pole alluded
to the gunshot residue test a third time, in his pro se
motion for reconsideration. R. 41. There, for the first time
in federal proceedings, he argued that if his attorney had
presented the scientist who conducted the test and the
results of the test, he would have been able to prove he
was not the shooter. In the motion for reconsideration,
Pole posited that the gunshot residue test would also
have shown that his signed confession was untrue and
coerced. He also argued that Ramon’s affidavit would
have explained why the gunshot residue tests were
negative, namely because Pole was not touching the gun
when it accidentally discharged. Pole attached the gun-
shot residue report to his motion for reconsideration
before the district court. This third reference to the
gunshot residue tests came too late, however, to preserve
the issue for appeal. Arguments raised or developed for
the first time in a motion to reconsider are generally
Nos. 06-2768 & 06-3281                                        31

deemed forfeited. Mungo v. Taylor, 355 F.3d 969, 978 (7th
Cir. 2004). In a fourth reference, Pole argued in his
reply brief on the motion to reconsider that the gunshot
residue evidence would have shown that it was
impossible for him to have fired the fatal shot.4 R. 56.
Again, arguments raised in a motion to reconsider are
generally deemed forfeited. Mungo, 355 F.3d at 978. In a
fifth reference, Pole repeated the argument from his pro se
reply brief in his pro se notice of appeal, again too late.
R. 42. And sixth (and finally), in his pro se briefing on
his request for a certificate of appealability, Pole stated,
“it is further highlighted that Petitioner did not fire a
gun that night because short [sic] after the shooting
his hands and alleged glove were tested for gunshot
residue. Both test [sic] yielded negative.” R. 74, at 5.
This reference also is too late to raise the issue, and in
any case, in this final instance, Pole mentions the


4
  Based on our review of the record, Pole has never presented
any evidence that the absence of gunshot residue demonstrates
with any certainty that he was not holding the gun when the
fatal shot was fired. He has presented no evidence, expert or
otherwise, interpreting the results of the gunshot residue tests.
We therefore cannot say whether the test was conclusive on
the issue of whether he was holding the gun when it discharged,
or whether, for example, he could have washed off any residue
in the time between the crime and his arrest. On this record, we
simply do not know the value of this evidence. Indeed, on
direct appeal, the Illinois Court of Appeals commented, “The
absence of gunshot residue does not mean that the person
tested did not handle or fire the weapon.” People v. Pole, Case
No. 1-96-1030, at 11 (Ill. App. 1 Dist. Dec. 22, 1997).
32                                    Nos. 06-2768 & 06-3281

gunshot residue test only in the context of bolstering the
importance of Ramon Hamilton’s affidavit and potential
testimony.
   Only the first two references came before the district
court ruled on the petition for habeas relief. Neither of those
references contained anything resembling an argument
that counsel was ineffective for failing to present the
gunshot residue evidence at trial. In the habeas petition
itself, Pole listed only three bases for his claim of inef-
fective assistance: (1) the failure to call Pole as a witness
at the motion to suppress; (2) the failure to adequately
investigate the case which led to the failure to secure
the recantations and other affidavits corroborating
Pole’s account of the incident; and (3) the failure of ap-
pellate counsel to raise ineffective assistance by trial
counsel. Nowhere in his habeas petition or brief did he
develop a legal argument that his lawyer was ineffective
for failing to introduce the results of the gunshot residue
test. All other references came too late in motions to
reconsider and subsequent pleadings when Pole could
have raised the arguments earlier. Pole offers no justifica-
tion for failing to develop the argument earlier in the
federal proceedings. The issue is thus forfeited. Winsett,
130 F.3d at 274 (appellate court may not consider a
habeas argument that was not presented to the district
court).


                              3.
  The state agrees that two of Pole’s ineffective assistance
claims were fairly presented to and adjudicated on the
Nos. 06-2768 & 06-3281                                   33

merits by the state appellate court, and that those claims
were not procedurally defaulted. According to the
state, Pole properly preserved claims that counsel was
ineffective (1) for failing to call Pole as a witness at his
suppression hearing; and (2) for failing to investigate
Ramon Hamilton and Lontray. State’s Brief at 24, 50. The
state concedes that the district court erred in finding a
“complete procedural default.” We therefore will
address those claims on the merits below. The state
contends that Pole forfeited the other claims he now
raises on appeal because he failed to raise those claims
in the district court. In particular, the state maintains
that Pole did not argue in the district court that counsel
was ineffective when he failed to interview key prosecu-
tion witnesses (Andrea and Bonnie Hamilton and Karen
Wills) and failed to interview or call other identified
eyewitnesses (Thaddeus and Thomas, Jr.). Having re-
viewed Pole’s pleadings in the state courts and district
court, we find that Pole adequately raised both the legal
and factual bases for the claims related to the
prosecution witnesses. In both the state courts and the
district court, he attached the affidavits that formed the
basis of these claims. Pole did not, however, argue in
his habeas brief in the district court that counsel was
ineffective for failing to investigate Thaddeus and
Thomas Jr., the putative additional eyewitnesses to the
crime, and therefore that claim is forfeited because it is
presented for the first time on appeal. Winsett, 130 F.3d
at 274. In sum, we will address on the merits Pole’s
claims that trial counsel was ineffective in (1) failing to
call Pole as a witness at the suppression hearing;
34                                  Nos. 06-2768 & 06-3281

(2) failing to investigate Ramon Hamilton; and (3) failing
to interview the prosecution witnesses (Andrea and
Bonnie Hamilton and Karen Wills), who, in part, later
recanted their testimony.


                            B.
  As we noted above, in order to make out a claim for
ineffective assistance, a petitioner must show both that
his lawyer’s performance fell below an objective standard
of reasonableness as measured by prevailing professional
norms, and also that the petitioner suffered prejudice as
a result of counsel’s errors. Strickland, 466 U.S. at 688;
Wiggins, 539 U.S. at 521. When we are reviewing a Strick-
land claim through the lens of the AEDPA, in order to
prevail, the petitioner must demonstrate that the state
court’s adjudication of the claim (1) resulted in a
decision that was contrary to, or involved an unrea-
sonable application of, clearly established federal law, as
determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the
evidence presented in the state court proceeding.


                             1.
  We turn first to trial counsel’s failure to call Pole as a
witness at the suppression hearing. Counsel failed to
call any witnesses at the suppression hearing, instead
relying on his cross-examination of prosecution witnesses
to make his case. The state called two police officers
Nos. 06-2768 & 06-3281                                  35

and the state’s attorney, each of whom interviewed Pole
in the hours following his arrest. They testified that Pole
was advised of his rights and not mistreated in any man-
ner, that he read and understood the confession written
out by the state’s attorney, and that he appeared capable
of understanding what was happening. Pole’s lawyer
argued to the state trial court that, at the time of the
interrogation, Pole was eighteen and had a limited educa-
tion. This was the first time he had been interrogated,
and he lacked experience with the criminal justice sys-
tem. Pole’s counsel also argued that he was held for
a lengthy time before he confessed, and that under
the totality of the circumstances, his statement was not
voluntary.
   In his affidavits, Pole claims that, had he been called
to testify at the suppression hearing, he would have told
the court that the officers chained him to the wall of the
interrogation room. R. 13, at C51, C57 and C61. Two
officers gave him a snack and a drink and asked him if
he knew about the shooting at the gas station. When
Pole told the officers that the shooting was accidental,
one of the officers took back the snack and drink and
called him a liar. The other officer took him to another
room and handcuffed him to the wall again. Pole was
tired and had difficulty getting into a position where he
could sleep because he was handcuffed to the wall. On
two or three occasions, when he started to fall asleep,
officers came back into the room, woke him up, and
asked more questions. According to his affidavits, at
the time of his interrogation, Pole had been awake for
twenty-four to thirty hours, and had been selling
36                                    Nos. 06-2768 & 06-3281

narcotics, smoking marijuana, and drinking rum in the
hours before his arrest. Pole would have testified that
he was not in a “normal frame of mind,” and that he
told the officers he was tired and needed sleep. R. 13, at
C59. Eventually, according to Pole, the state’s attorney
told him that, in order to save himself, he should sign a
paper saying that Ramon was the shooter. Pole signed
the paper without reading it in the hopes of “getting it
over.” R. 13, at C55.
  We begin with the presumption that counsel rendered
adequate assistance and made all significant decisions
in the exercise of reasonable professional judgment.
Thompson v. Battaglia, 458 F.3d 614, 620 (7th Cir. 2006). To
determine whether a confession is voluntary, the court
looks at the characteristics of the defendant and the
conduct of the interrogators to determine if the
defendant’s will was overcome by coercion. Gilbert v.
Merchant, 488 F.3d 780, 791 (7th Cir. 2007) (whether a
confession was voluntary depends on the totality of the
circumstances surrounding that confession, including
both the characteristics of the accused and the details of
the interrogation that resulted in the confession). A confes-
sion is voluntary if, considering the totality of the cir-
cumstances, it is the product of a rational intellect and
free will, and not the result of physical abuse, psychologi-
cal intimidation, or deceptive interrogation tactics that
have overcome the defendant’s free will. United States v.
Gillaum, 372 F.3d 848, 856 (7th Cir. 2004). See also Johnson v.
Pollard, 559 F.3d 746, 753 (7th Cir. 2009) (a confession
is involuntary when it was given in circumstances that
were sufficient to overbear the confessor’s free will).
Nos. 06-2768 & 06-3281                                         37

Moreover, coercive police activity is a necessary predicate
to finding that a confession is not voluntary. Colorado v.
Connelly, 479 U.S. 157, 163-64 (1986); Gillaum, 372 F.3d at
856. Courts may consider, among other things, the
age, experience, education, background and intelligence
of the accused, the length of the questioning, and other
circumstances surrounding the interrogation when evaluat-
ing whether a confession was voluntarily given. Johnson,
559 F.3d at 755. See also Gillaum, 372 F.3d at 856-57 (same).
  The basis of Pole’s claim of coercion is that his inter-
rogators deprived him of sleep and lied to him at a time
when he was mentally impaired by his consumption of
marijuana and rum in the hours leading up to his arrest.5
He signed the papers, he contends, because he was told
they implicated Ramon as the shooter. He did not tell
the officers that he was under the influence of rum
and marijuana but only that he was tired and needed to




5
  We note that Pole’s affidavit generally denies he made any
oral statements incriminating himself, and the alleged coercive
activity surrounds only his signed statement. The police officers
and assistant state’s attorney testified (and the trial court
found their testimony credible) that Pole’s first oral confession
came within a few hours of his arrival at the police station. Pole
does not allege that the police officers lied to him during
the earlier part of the evening, only that the assistant state’s
attorney misrepresented the contents of the signed statement
much later. The signed statement was written at approxi-
mately 6:45 a.m. on September 28, 1994, nearly twelve hours
after the murder.
38                                   Nos. 06-2768 & 06-3281

sleep.6 He also does not claim that the officers
threatened him or physically abused him in any other
way. Pole’s lawyer did not call any witnesses, but
instead relied on cross-examination of the state’s wit-
nesses to support the motion to suppress. The state trial
court found that the state’s witnesses were credible, that
Pole had been read his rights and that there was no
evidence supporting his allegations of coercion. As we
noted above, the state appellate court, in post-conviction
proceedings, found that counsel’s performance at the
suppression hearing was not deficient. Specifically, the
state appellate court found that counsel’s strategy of cross-
examining the state’s witnesses and arguing Pole’s youth
and inexperience to the trial court was adequate.
  We recently had the occasion to consider whether
relying solely on a cross-examination of the state’s wit-
nesses to prove coercion fell within the range of
competent legal representation. See Bynum v. Lemmon, 560
F.3d 678 (7th Cir. 2009). Bynum told his lawyer that,
during his interrogation, the police threatened him
with violence when he asked for a lawyer, handcuffed
him to a chair for nine hours, deprived him of food and
water and refused to let him go to the bathroom, among
other things. Bynum’s lawyer moved to suppress his
confession but did not ask Bynum to testify at the hear-
ing. Instead, counsel questioned the officers who



6
  In Pole’s signed confession, he claimed not to be under the
influence of drugs or alcohol at the time of making his state-
ment.
Nos. 06-2768 & 06-3281                                   39

took Bynum’s statement. The officers contradicted every
part of Bynum’s claim of coercion, and the trial court
found the officers credible. Counsel later explained that
he did not call Bynum to the stand because he did not
think Bynum would hold up under cross-examination.
We noted that Bynum’s account of the interrogation
was the only available evidence of coercion. We found
that an expectation that the interrogating officers would
admit on the stand that they used coercion to force
Bynum’s confession was more “television fantasy” than
trial strategy. Any competent lawyer would have
expected the interrogators to deny that they coerced a
suspect. Without an admission to wrongdoing by the
interrogators, Bynum was left with no evidence that his
confession was coerced. Because a “motion to suppress
allegedly involuntary confessions cannot succeed
without at least some evidence that the confessions were
coerced,” and because counsel’s reason for keeping
Bynum off the stand was legally baseless, we concluded
that counsel’s actions fell well outside the range of compe-
tence demanded by attorneys in criminal cases. Bynum,
560 F.3d at 684. We held that the state court’s conclusion
to the contrary was an unreasonable application of the
Strickland standard. Bynum, 560 F.3d at 685.
  Pole’s case presents a similar situation. Counsel had
only Pole’s testimony that, at the time of his interroga-
tion, he was obviously under the influence of drugs
and alcohol, he had been awake for twenty-four to thirty
hours, and the officers chained him to the wall in a
manner that made it difficult to sleep and then woke
him up every time he tried to fall asleep, even though
40                                    Nos. 06-2768 & 06-3281

he told the officers that he needed to sleep.7 More-
over, only Pole could testify that when he signed the
confession, he did so because the interrogators told him
the confession implicated Ramon as the shooter and not
himself. We do not know why Pole’s counsel declined to
call him to the stand because there has been no hearing
on Pole’s claim of ineffective assistance and Pole has
submitted no affidavit from his trial counsel. Perhaps
Pole’s lawyer wished to avoid the possibility that Pole
would be impeached at trial with any testimony he gave
at a suppression hearing. See People v. Sturgis, 317
N.E.2d 545, 548 (Ill. 1974) (“We therefore hold that the
testimony of a defendant or documents voluntarily
attested to by him in conjunction with his motion to
suppress evidence may not be introduced by the State
directly in its case in chief but may be used for purposes
of impeachment should the defendant choose to testify
at trial.”). Pole’s lawyer may also have been concerned
that the trial court would enhance Pole’s sentence for
obstruction of justice if Pole testified and the court dis-
believed him. In Bynum’s case, we had the benefit of a
fully developed record, including testimony from
Bynum’s lawyer explaining why he attempted to prove
coercion using only the prosecution witnesses. We


7
  A defendant’s mental state is not enough alone to render his
confession involuntary for suppression purposes. See Connelly,
479 U.S. at 164-65. Although mental condition is relevant to a
defendant’s susceptibility to coercion, the police interrogator
must have committed wrongful acts in order for a confession
to be suppressed as the product of coercion.
Nos. 06-2768 & 06-3281                                    41

found that counsel’s performance was deficient because
an attempt to prove coercion on the basis of the inter-
rogators’ testimony alone without a valid reason to do
so was “outside the wide range of professionally compe-
tent assistance.” Strickland, 466 U.S. at 690; Bynum, 560
F.3d at 685. Without knowing counsel’s reasoning in this
case, we will assume that counsel’s performance was
deficient and move on to the second part of the analysis.
   Pole must still demonstrate, of course, that any error
prejudiced him. Strickland, 466 U.S. at 693; Bynum, 560
F.3d at 685. To succeed on the prejudice prong of
Strickland, Pole must demonstrate that, had he testified,
there was both a reasonable probability that he would
have prevailed on the motion to suppress and a reason-
able probability that he would have been acquitted.
Strickland, 466 U.S. at 694; Bynum, 560 F.3d at 684. See also
Thompson, 458 F.3d at 620 (a habeas petitioner claiming
that a lawyer’s failure to make a motion to suppress
was ineffective must prove that the motion would have
been meritorious). Unlike Bynum, where the primary
evidence against the defendant was the confession
itself, we cannot assume that Pole would have been
acquitted had the motion to suppress been granted; there
was considerably more evidence against Pole than the
signed confession. In addition to oral and written confes-
sions to the police officers and state’s attorney, Pole had
confessed to Andrea Hamilton and Karen Wills, and was
implicated by Ramon Hamilton as the shooter. Persons
on the scene identified him as the individual who
asked about three men in the van and who later drove
by flashing gang signals. The police had also recovered
42                                 Nos. 06-2768 & 06-3281

the murder weapon along with a glove bearing Pole’s
name. In Pole’s own version of events on the night of
the murder (which we glean from the affidavits he has
filed with his habeas petition), Pole concedes he called
his fellow gang members to the scene, that the group had
gone back to the tire shop to confront a member of a
competing gang, and that he was present when the fatal
shot was fired during the struggle to set the safety on
the gun. Indeed, the only salient points on which Pole’s
story differs from the state’s version are (1) whether the
shot was fired accidentally by his compatriots at a time
when he was not touching the gun, or whether Pole fired
the shot deliberately; and (2) whether Pole and his fellow
gang members were there to beat a gang rival or to rob
him. The difference between Pole’s version and the
state’s version of the shooting would be the difference
between first degree murder and involuntary manslaugh-
ter if Pole had not also been convicted of attempted
armed robbery, another felony arising out of the same
event. That is, if Bernard Jackson’s death was the result
of the attempted armed robbery, for the purposes of the
Illinois felony murder statute, it would not matter
whether Pole aimed deliberately or whether the gun
accidentally discharged; in either case, Pole would be
guilty of first degree murder. See People v. Figueroa, 886
N.E.2d 455, 463 (Ill. App. 1 Dist. 2008) (under the felony
murder doctrine, a felon is responsible for the direct and
foreseeable consequences of his actions, regardless of
whether the defendant intended to kill the victim or
whether the death was accidental); People v. Pugh,
634 N.E.2d 34, 35-36 (Ill. App. 5 Dist. 1994) (felons are
Nos. 06-2768 & 06-3281                                   43

responsible for those deaths which occur during a
felony and which are foreseeable consequences of their
initial criminal acts; it is immaterial whether the killing
was intentional or accidental or was committed by a
confederate without the connivance of the defendant or
even by a third party trying to prevent the commission
of or resist the felony). Pole’s confession implicated him
in both the armed robbery and the murder, and so the
suppression motion could have affected both convic-
tions. Because Pole also alleges that the other evidence
of his participation in the crime is suspect (in particular,
the evidence from Andrea Hamilton, Karen Wills and
Ramon Hamilton), we will defer the final analysis of
whether the confession would have been suppressed
or whether Pole would have been acquitted until we
consider his other claims of ineffective assistance.


                             2.
  As we have already noted, both the state appellate
court and the district court misread Ramon Hamilton’s
affidavit. Each court assumed that Ramon was not
present at the shooting and that his testimony therefore
could not have influenced the outcome of the trial. In his
affidavit and even in the state’s version of the facts,
Ramon was present at the shooting, and was the
individual who brought the gun to the encounter. Indeed,
Ramon was charged with and pled guilty to murder and
attempted armed robbery, the same charges on which
Pole was convicted at trial. In the course of pleading
guilty, Ramon admitted to the prosecutor’s proffered
44                                      Nos. 06-2768 & 06-3281

factual basis for his plea. According to that proffer, after
Ramon was arrested on the night of the murder, he re-
ceived Miranda warnings and, with his mother present
(because Ramon was fifteen years old at the time), gave a
statement implicating himself and Pole. According to
that statement, Pole came to Ramon the evening of the
murder to ask for a gun so that Pole could go to the tire
shop and rob the Gangster Disciples of their jewelry.
Ramon provided Pole with a loaded handgun, and drove
in a separate car when the Blackstones passed in front of
the tire shop to verify that Gangster Disciples were present.
After parking their cars near the tire shop, Pole asked
Ramon to release the safety on the gun and Ramon
obliged. They approached the shop and Pole fired one
shot before the two fled the scene. After being told that
Pole gave the gun to Ramon’s sister, Ramon retrieved the
gun and hid it until the police arrived and demanded the
weapon. Ramon conceded all of this at his change of plea
hearing.
  In his affidavit, Ramon told a different story of the
night of the murder. R. 13, at C63.8 According to the
affidavit, Ramon was at his home with Thomas Jr.,
Lontray, Rob and Thaddeus “smoking weed” when Pole




8
  As previously noted, this affidavit was signed in 1998, more
than four years after the murder. Pole submitted Ramon’s
affidavit to the Illinois appellate court with his pro se petition
for post-conviction relief in November 1998, and also sub-
mitted it in his federal habeas proceedings.
Nos. 06-2768 & 06-3281                                     45

drove up.9 R. 13, at C63, ¶3. Pole told the group that a rival
gang member, Corey Lamb, was at the tire shop. Thaddeus
suggested that the group proceed to the tire shop to beat
Lamb for a past wrong. After Rob balked, Thaddeus
suggested that the group drive past the tire shop to
make sure that Pole was correct about the identity of the
man he saw there. They drove past the shop, confirmed
Pole’s claim, and then parked in the alley behind the
shop. As they walked toward the tire shop, Thaddeus
asked if everyone had his back, and Ramon offered that
he had a gun. Thaddeus then took the gun from Ramon
and said he was going to hit Lamb with the gun. Ramon
and Lontray told him to put the safety on or to take the
clip out to prevent an accidental shooting. While
Thaddeus was trying to put the safety on, Ramon and
Lontray reached for the gun and it discharged toward the
van at the tire shop. Everyone ran, and Ramon returned
home and “fired up [his] blunt.” 1 0 Thaddeus and Pole
came to Ramon’s house and Ramon asked where the
gun was. When Pole told him it was in his car, Ramon
told him to retrieve the weapon.
  Pole left to get the gun, and Ramon proceeded to a “game
room” with Lontray, where he played a few games and
smoked more marijuana. When Ramon returned home,
his sister Andrea gave him the gun and he hid it on the



9
  No last names have been offered by Pole or by any of his
affiants for any of these individuals.
10
  According to www.urbandictionary.com, a blunt is a cigar
that has been hollowed out and refilled with marijuana.
46                                 Nos. 06-2768 & 06-3281

side of his house. When the police arrived and asked
for the gun, Ramon (by his own account) “played crazy”
and told the officers he did not know what they were
talking about. After the officers starting “pulling and
shaking” him, he turned over the gun. The officers then
took Ramon, his sister and his mother to the police
station for questioning. The police questioned Ramon
with his mother present, telling him that Pole had
named him as the shooter. When Ramon denied being
the shooter, the officers told him that the only way for
him to go home was to sign a statement implicating Pole
as the shooter. Ramon refused to sign the statement
until his mother directed him to do so. Contrary to the
officer’s promise, Ramon was not released, but was placed
in custody at a juvenile facility. Ramon’s lawyer later
recommended that he accept a plea deal and testify against
Pole. Ramon’s mother told him to take the deal, and
Ramon pled guilty. Ramon was never asked to testify
against Pole. R. 13, at C63-66.
   According to Pole, Ramon’s testimony, as portrayed
in his affidavit, would have exonerated him. Pole claims
that his lawyer’s failure to investigate Ramon and call
him to the stand constituted ineffective assistance of
counsel. Ramon, Pole contends, was an eyewitness
whose testimony could have shown that Pole was not
the shooter. Similarly, Lontray was an eyewitness whose
testimony could have exonerated Pole of the charge of
first degree murder. Because the district court and the
state court misconstrued the affidavit, we will review
this claim without the usual deference. We first consider
whether counsel’s failure to investigate Ramon and
Nos. 06-2768 & 06-3281                                   47

Lontray was “outside the wide range of professionally
competent assistance.” Strickland, 466 U.S. at 690. Ramon
had signed a confession on the same night that Pole
implicated himself, and Ramon’s confession substan-
tially matched the statements given by his sister Andrea
and by her friend Karen Wills. Ramon also pled guilty
to the murder and conceded the state’s version of the
facts at his plea allocution. That version, of course,
named Pole as the shooter.
  Pole’s argument on this point presumes first that his
trial counsel did not investigate Ramon Hamilton or
Lontray. The record, however, does not tell us whether
counsel in fact had investigated these two eyewitnesses
to the crime prior to the time of the trial.1 1 Pole did not
obtain an affidavit from his trial counsel, and neither
the state courts nor the district court held a hearing at
which the fact-finder could have discerned whether
there was a factual basis for Pole’s claim that counsel
failed to investigate these witnesses. Moreover, Pole has
submitted no affidavit from Lontray supporting his
claim that Lontray’s testimony would exonerate Pole.
On appeal, Pole does not ask us to remand for a hearing
but rather requests that we simply reverse the district
court’s order and remand with instructions to issue the
writ. Given that it was Pole’s burden to produce evidence
on this point, and given that Pole has neither produced
that evidence nor requested a hearing where he would



11
  Ramon’s affidavit does not mention Pole’s attorney. R. 13,
at C63-C66.
48                                       Nos. 06-2768 & 06-3281

have an opportunity to provide that evidence, we
decline to assume the truth of assertions that lack
record support.
  Pole’s argument also presumes that, had counsel investi-
gated Ramon Hamilton, counsel would have been able to
convince Ramon to recant his confession, withdraw his
guilty plea (or at least recant his plea hearing allocution),
and reverse his intention to cooperate with the state
in Pole’s prosecution. As for Lontray, Pole’s argument
presumes that counsel would have been able to locate
the elusive Lontray (whose last name has yet to be pro-
vided), and would have been able to get Lontray to
confess that it was he who was holding the gun and
struggling with his cohorts when the weapon discharged.
In other words, counsel would have had to persuade
Lontray to confess to his part in the shooting death of
Bernard Jackson. In the case of both Ramon and Lontray,
nothing in the record supports the wild speculation that
counsel would have been able to convince Ramon to
admit to perjury and Lontray to testify to the version of
the facts now promoted by Pole and Ramon. Nor may
we ignore the bizarre nature of the story Pole now pro-
motes through Ramon, that gang members who concede
they were on their way to confront and beat a rival
gang member, stopped to argue about how best to
protect the target of their wrath from an accidental shoot-
ing.12 Reasonably competent counsel had every reason



12
  In the affidavits filed with the habeas petition, both Ramon and
Pole concede that they went to the tire shop to “beat Corey’s
                                                       (continued...)
Nos. 06-2768 & 06-3281                                           49

not to call Ramon to the stand. Ramon’s guilty plea, his
confession and his allocution all provided strong evidence
against Pole. Ramon’s earlier versions of events pointed
to Pole as the instigator for the entire confrontation and
as the ultimate trigger man. In light of the gaps in the
record, Ramon’s confession and guilty plea, and the
utter lack of information regarding Lontray, we cannot
say that counsel’s possible failure to investigate or call
these witnesses fell outside the wide range of profession-
ally competent assistance. Strickland, 466 U.S. at 690.


                                 3.
  Pole’s primary evidence that his lawyer failed to investi-
gate Andrea and Bonnie Hamilton and Karen Wills
comes in his third affidavit. R. 13, at C61. There he states
that, after talking to Andrea and Karen before the trial, he
asked his lawyer to investigate the two. His lawyer
replied that a private investigator would cost about $250,
a price Pole agreed to pay. According to the affidavit,
Andrea told Pole before the trial that she and her mother
signed statements implicating him only because the


12
  (...continued)
ass,” in Ramon’s words, and to “whip Corey’s ass,” in Pole’s
words. They also both conceded that after Ramon produced
the gun, Thaddeus announced he was going to use the gun to
pistol whip Corey, their gang rival. R. 13, at C51, ¶¶ 8, 14; R. 13,
at C63, ¶¶ 5, 12. Only then did these unusually conscientious
gang members begin to argue about how best to pistol whip
Corey without actually shooting him.
50                                    Nos. 06-2768 & 06-3281

police told them they could go home if they did so. Andrea
offered that if Pole sent his lawyer to meet them, Andrea
and her mother would sign affidavits explaining why
they signed the original statements. Andrea later refused
to talk further to Pole, telling him she was going to testify
for the state. According to Pole, his lawyer also told
him that if Andrea and Karen were willing to sign affida-
vits changing their original stories, they would likely
testify “to the exact same thing at trial on the stand.” R. 13,
at C61, ¶ 4. Pole believed that Andrea was trying to
protect her brother Ramon when she withdrew her sup-
port from Pole.
  Pole has not provided any affidavit from Karen Wills,
stating only in his own affidavit that he spoke to Wills in
May 1995, and that Wills related to him that “she did not
want to sign the paper but she just wanted to go home
that night, especially since the police knew she had stolen
some hair care products. She further related that she
meant me no harm she just signed the paper that she
thinks the State’s Attorney had written up.” R. 13, at C61,
¶¶ 1-2. Yet Pole has presented no evidence that Karen
Wills ever recanted her statements from the night of the
murder or her testimony at trial, both of which
implicated Pole as the shooter. She states (through Pole)
that she did not want to sign the statement and meant
no harm to Pole but does not assert that she lied in her
initial statements and testimony. Notably, neither the
affiants (Pole, Bonnie and Andrea Hamilton) nor Karen
Wills state that Pole’s lawyer did not contact them or
investigate their stories. Nor do any of them claim that
Nos. 06-2768 & 06-3281                                       51

the statements they signed on the night of the murder
were untrue.13 Rather, they now assert that they signed
the statements because they wanted to go home, or
because they wanted to protect themselves or Ramon.
Each testified at trial consistently with their original
statements. Bonnie Hamilton’s affidavit does not add
much to the mix. She averred that the prosecutor told her
the only way for her and her children to go home was
for Ramon to sign a statement saying that Pole shot at
someone and for Andrea to sign a statement saying
that Pole gave her the gun. Again, Pole himself concedes
(as does Ramon Hamilton) that Pole gave the gun to


13
  Andrea Hamilton comes closest to saying that her original
statement was untrue. In her affidavit, she alleges that the
prosecutor told her to testify that Pole brought a gun to her
house and that Pole told her he shot somebody. The prosecutor
told her that she had to choose between her brother and Pole
and “It’s only natural I would chose Ramon.” She also averred
that she now felt “responsible for my brother Ramon and Willie
[Pole] being locked up for something that they had nothing
to do with.” R. 13, at C72-C73. That Pole and Ramon had
“nothing to do with” the shooting is a characterization of
events belied by the affidavits of Pole and Ramon. Each now
concedes that they went to the tire shop with a gun to attack
a rival gang member, an action that led to the shooting death
of an innocent bystander. They also both stated in their affida-
vits that Ramon directed Pole to bring the gun to Ramon’s
house, and that Pole did so by giving the gun to Andrea
with directions to bring it home for Ramon. Her assertion that
the prosecutor manufactured her statement is curious in light
of her brother’s concessions.
52                                  Nos. 06-2768 & 06-3281

Andrea after the shooting. Bonnie Hamilton does not
aver that the prosecutor was asking Ramon to falsely
claim that Pole shot at someone, only that the prosecutor
asked Ramon to sign a statement to that effect. Bonnie
Hamilton, like her daughter, now complains that Ramon
is “locked up for a murder he did not commit,” even
though Ramon pled guilty to murder charges and agreed
to the truth of the prosecutor’s proffer at his plea
allocution. R. 13, at C78-C80.
   If in fact Pole’s lawyer failed to investigate Andrea and
Bonnie Hamilton and Karen Wills, we cannot say on this
record that failure caused Pole any prejudice at trial. See
Strickland, 466 U.S. at 688; Wiggins, 539 U.S. at 521. Andrea
and Bonnie Hamilton have both conceded that, at the
time of the arrests and trial, their primary concern was
to protect Ramon Hamilton. Pole’s counsel was able to
show Andrea’s bias on cross-examination at trial, getting
her to concede that she loved Ramon and would not do
anything to hurt him. Karen Wills has not recanted to
this day, and testified at trial consistently with her
original statement to the police on the night of the mur-
der. Pole assumes that his lawyer could have convinced
Andrea to testify in a manner contrary to her original
statement and contrary to what she believed was in her
brother Ramon’s best interest. He also speculates that
Karen Wills would have changed her testimony had she
been approached by Pole’s lawyer. Even if Pole’s lawyer
had managed either of these highly speculative
and unlikely feats, Pole would also have to show a rea-
sonable probability that he would have been acquitted
if the jury had been presented with this additional evi-
Nos. 06-2768 & 06-3281                                     53

dence. Strickland, 466 U.S. at 694; Bynum, 560 F.3d at 685;
Richardson, 401 F.3d at 803. In light of the substantial other
evidence against him, Pole has failed to make such a
showing.


                              4.
  Before addressing the possible prejudice of counsel’s
performance as a whole, we must address the district
court’s handling of Pole’s pro se motion to reconsider. We
previously held that the district court erroneously
treated the timely motion to reconsider as an
unauthorized attempt to litigate a successive collateral
attack on his sentence. See Pole v. Firkus, Case Nos. 06-2768
& 06-3281, Order, at 2 (7th Cir. Jan. 18, 2007). We
concluded that the court should have treated the filing as
a timely motion for reconsideration and should have
decided it on the merits. Fed. R. Civ. P. 59(e). In his
motion to reconsider, Pole pointed out that both the
state appellate court and the district court misread
Ramon Hamilton’s affidavit. Pole’s observation was
correct, and the district court should have declined to
defer to the state court’s findings on Ramon’s affidavit.
We have not deferred to the state court’s findings regard-
ing Ramon’s affidavit, and instead have resolved Pole’s
claims using the assumption that Ramon would have
testified that he was present at the shooting. Pole also
noted for the first time in the motion to reconsider that
the gunshot residue test results would have supported
his motion to suppress his confession and would have
corroborated Ramon’s new account of the crime. As we
54                                  Nos. 06-2768 & 06-3281

explained above, however, arguments made for the first
time in a motion to reconsider come too late for the
court’s consideration. Mungo, 355 F.3d at 978. Although
the district court should have decided Pole’s motion to
reconsider on the merits, we conclude that the error
does not affect the outcome of the appeal.


                             C.
  Finally, we consider whether Pole was prejudiced by
any deficiencies in his counsel’s performance, an inquiry
we make by considering counsel’s performance as a
whole. Thompson, 458 F.3d at 616 (counsel’s performance
must be addressed as a whole; it is overall deficient
performance rather than a specific failing, that constitutes
the ground of relief); Peoples, 403 F.3d at 848 (same).
We assumed above that counsel’s decision to rely
entirely on the state’s witnesses to establish that Pole’s
confession had been coerced constituted deficient perfor-
mance. In Bynum, the defendant’s confessions provided
the primary evidence against him. Bynum, 560 F.3d at 685.
Because the only other evidence supporting Bynum’s
conviction consisted of a voice identification by a thirteen-
year-old boy who had heard the defendant speak on one
other occasion, we reasoned that Bynum would have been
acquitted had the two confessions been suppressed. In
Pole’s case, in addition to his signed confession, Pole
sought to exclude oral statements he made to two police
officers and an assistant state’s attorney on the night of
the murder. These statements were all consistent with
statements Pole made that same evening to Andrea
Nos. 06-2768 & 06-3281                                  55

Hamilton and Karen Wills, who also testified at trial. Pole
was also identified by other persons present at the tire
shop that evening as the person who had inquired about
the gang affiliation of the other men at the shop, and as
the person who later drove past the shop flashing gang
symbols. His car was identified by witnesses, and the
murder weapon was recovered from Ramon Hamilton’s
house, along with a glove marked with Pole’s name. Unlike
Bynum, there was considerable evidence of Pole’s guilt
beyond the allegedly coerced confessions to law enforce-
ment officers and the prosecutor. We conclude that Pole
has failed to demonstrate a reasonable probability that
he would have been acquitted had the oral and written
confessions been suppressed.
   Although we earlier assumed that the failure to put
Pole on the stand was outside the wide range of profes-
sionally competent assistance, we ultimately find that
Pole has failed to demonstrate a reasonable probability
that he would have prevailed at the suppression hearing
if he had testified on his own behalf. As with Bynum, the
court found the officers and assistant state’s attorney
testifying against Pole were credible. Bynum, 560 F.3d at
685. And as with Bynum, we defer to this conclusion
because it was reached after a hearing on the merits and
is supported by the record. Id. Had Pole testified at the
suppression hearing, he would have had only his own
uncorroborated testimony of coercion, with no physical
evidence and no other witnesses. In his signed
confession, Pole stated that he was treated well by the
police officers and the assistant state’s attorney, that he
was given water and soda to drink, that he was allowed
56                                 Nos. 06-2768 & 06-3281

bathroom breaks, that he was not promised anything
in exchange for his statement and that he was not threat-
ened in any way. He also stated that he was not under
the influence of drugs or alcohol at the time he signed
the confession. Weighed against his signed statement
and the credible testimony of two police officers and an
assistant state’s attorney, Pole offers only his uncorrobo-
rated testimony that he was kept awake for approxi-
mately ten hours before he confessed. We conclude Pole
has failed to demonstrate a reasonable probability that
he would have prevailed at the suppression hearing if
he had testified on his own behalf.
   Viewing counsel’s performance as a whole, we note
first that Pole’s lawyer was faced with a client who con-
fessed to no fewer than five people within hours of the
murder, including two acquaintances, two police
officers and an assistant state’s attorney. By his own
admission, Pole instigated the entire incident and then
personally tried to hide the murder weapon after the
shooting. The gun was found with a glove marked with
Pole’s name. Although Pole claims not to have been
touching the gun, he was the person who was in
possession of the gun after the shooting. The basis for
Pole’s claim that the shooting was accidental is a highly
suspect story: a group of drug-addled gang members
who were on their way to beat a rival gang member
stopped to argue about how to engage the safety on the
gun so that they would not accidentally shoot their
rival. And while trying to protect their target, they
tussled over the gun and accidentally shot an innocent
bystander.
Nos. 06-2768 & 06-3281                                   57

  Despite these facts, Pole’s lawyer successfully argued
for the court to instruct the jury on the lesser offense of
involuntary manslaughter, and also successfully argued
that there were sufficient mitigating factors to preclude
imposition of the death penalty. Given the evidence
against Pole, these were significant victories. There are
certainly things that Pole’s lawyer could have done differ-
ently and perhaps more effectively. That is not the stan-
dard, however, for habeas review under the AEDPA.
“Habeas relief must not be granted unless the state
court’s adjudication of the claim (1) resulted in a decision
that was contrary to, or involved an unreasonable ap-
plication of, clearly 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 deter-
mination of the facts in light of the evidence presented
in the State court proceeding.” Julian, 495 F.3d at 492.
See also Jackson, 348 F.3d at 662; 28 U.S.C. § 2254(d). The
state court’s adjudication of Pole’s claim of ineffective
assistance of counsel does not meet this standard. To
demonstrate prejudice from counsel’s deficient perfor-
mance, a “defendant must show that there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694. Any lawyer would have had difficulty
persuading a jury to buy the story that Pole wanted to
tell, given his multiple confessions and his farfetched
explanation for the “accident.” Pole has not shown a
reasonable probability that the result of the proceeding
58                                  Nos. 06-2768 & 06-3281

would have been different even if his lawyer had done
everything Pole now argues he should have done. We
therefore affirm the district court’s denial of his petition
for a writ of habeas corpus.
                                                 A FFIRMED.




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