                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0864n.06

                                                 No. 11-5516

                              UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                                                                                  FILED
CALVIN O. TANKESLY, JR.,
                                                                                            Aug 08, 2012
        Petitioner,                                                                  LEONARD GREEN, Clerk

v.                                                            ON APPEAL FROM THE UNITED
                                                              STATES DISTRICT COURT FOR THE
TOMMY MILLS, Warden,                                          MIDDLE DISTRICT OF TENNESSEE

        Respondent.

                                                      /




BEFORE:          GUY and CLAY, Circuit Judges; HOOD, District Judge.*

        CLAY, Circuit Judge. Petitioner Calvin Tankesly, a Tennessee state prisoner, appeals an

order denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he

challenges his convictions for rape of a child and attempted rape of a child. Petitioner contends that

trial counsel’s conduct in moving to suppress four hundred items of women’s undergarments found

in his home and car did not protect his Fourth Amendment rights. Because Petitioner has not proven

his entitlement to relief under Strickland v. Washington, 466 U.S. 668 (1984), we AFFIRM the

district court’s judgment.




        *
         The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting
by designation.
                                            No. 11-5516

                                  FACTUAL BACKGROUND

       Petitioner was accused of sexually assaulting a six-year-old girl in the laundry room of his

apartment complex on May 6, 1995. During their investigation, law enforcement officers executed

a warrant to search Petitioner’s home and car. The search warrant directed officers to seize, among

other things, cameras, photographs depicting juveniles engaged in sexual activity, magazines

depicting sexual activity, sex toys, and clothing described by the victim and witnesses as worn by

the assailant. During the search, officers found and seized over four hundred items of women’s

undergarments from Petitioner’s home and car. These undergarments were not listed in the warrant

as items subject to seizure.

       Petitioner was indicted for rape and attempted rape in October 1995. Prior to trial, the parties

litigated the admissibility of the four hundred undergarments. At a motions hearing on December

4, 1997, the prosecution sought to introduce the undergarments as evidence of “other acts” of sexual

misconduct by Petitioner demonstrating his identity as the assailant. See Tenn. R. Evid. 404(b)

(“Evidence of other crimes, wrongs, or acts [may] be admissible for [non-character] purposes.”).

Petitioner had recently pleaded no contest to a factually similar crime in a nearby county, where he

allegedly offered the victim a pair of women’s undergarments. Thus, the prosecution argued that the

undergarments helped prove Petitioner’s identity as the assailant in the instant case. Defense counsel

moved in limine to prohibit the prosecution from offering the undergarments for admission into

evidence. Counsel vigorously contended that the undergarments did not prove Petitioner’s identity

and would prejudice him before the jury. The trial court admitted the undergarments, reasoning that

they were probative of the assailant’s identity.


                                                   2
                                           No. 11-5516

       Defense counsel also moved to suppress the undergarments on the basis of a Fourth

Amendment violation. Petitioner’s ineffective assistance claim arises from counsel’s conduct in

pursuing this motion. During the December 4, 1997 motions hearing, defense counsel stated his

intent to move to suppress the undergarments as obtained beyond the scope of the search warrant.

Counsel first explained that he had not moved to suppress the evidence earlier because Petitioner had

entered into a plea bargain on a similar charge in a nearby jurisdiction in which he waived his right

to contest the search warrant’s execution. Counsel then stated the basis for the forthcoming motion

to suppress:

       Your honor, I will be candid with you, I have reviewed a lot of the . . . police files.
       At that time it was my understanding, my recollection, there is nothing in the search
       warrant that said that [officers] could seize women’s underwear. So, then, we’ve
       come in on the day—less than thirty days, on the eve of trial, they’re saying, “Hey,
       we’re going to introduce this stuff.” Well my client didn’t—waived all that right to
       contest that search when he entered a plea of guilty. So we’re back now that I
       probably need to file a motion to suppress, and suppress all that.

The trial judge stated that he would be available to hear oral argument on the motion to suppress in

court the next day.

       Later in the day on December 4, counsel filed a one-page motion to suppress. The motion

briefly stated that a search was conducted on Petitioner’s home on May 30, 1995, that “the search

warrant was . . . in violation of the Fourth Amendment,” and that the court should suppress “the

items or information found as a result of [the] search.” On December 5, counsel filed an amended

motion, further explaining that “items seized [during the search] were not specifically includ[ed] in

the search warrant, to-wit: women’s undergarments.”




                                                 3
                                            No. 11-5516

        It appears that this motion was argued orally before the trial court, but the record leaves some

doubt on this point. A minute entry from the first morning of trial states briefly that Petitioner’s

motion to suppress was denied. In a trial colloquy with the prosecution prior to the undergarments’

admission, the trial judge explained that he had “overruled the motion to suppress.” However,

absent from the record is the transcript of any oral argument setting out the factual and legal grounds

for the ruling on the suppression motion.

        Petitioner’s trial commenced on December 8, 1997. According to the evidence presented at

trial, the victim was at her aunt’s apartment on the date of the attack and visited the apartment

complex’s laundry room to buy her aunt a soft drink. As the victim walked into the laundry room,

Petitioner was walking out. Petitioner asked the victim, “Do you want any panties?” Petitioner then

forced the victim to the ground, put his hand over her mouth, pulled down the victim’s shorts and

underwear, digitally penetrated the victim’s vagina, and attempted to force the victim to perform oral

sex on him. Seeing people approach the laundry room, Petitioner placed the victim back on her feet

and told her to pull up her pants and underwear. Petitioner then left the laundry room. At trial, the

victim proved unable to point out Petitioner in court as her assailant, but she did pick his picture out

of a photo array.

        Kimberly and Jimmy Gilkeson, a married couple that resided in the same apartment complex,

both testified that they drove up to the laundry room and parked outside. Kimberly parked their car

beside Petitioner’s car as Petitioner walked out of the laundry room. As Petitioner exited the laundry

room and entered his car, Kimberly made eye contact with him and observed him for roughly fifteen

seconds. Both Kimberly and Jimmy noticed a male, blond-haired child buckled in the seat of


                                                   4
                                             No. 11-5516

Petitioner’s car. Kimberly and Jimmy then entered the laundry room to find the victim sobbing

hysterically and accusing Petitioner of trying to kill her. The victim’s hair was tousled, change was

scattered on the floor, and the girl was standing in a puddle of urine. Kimberly wiped up the urine

with a pair of women’s undergarments she found on the floor.

        Both Kimberly and Jimmy identified Petitioner as the man leaving the laundry room in pre-

trial photograph arrays and at trial. The Gilkesons’ description of Petitioner’s car matched the car

Petitioner owned. The boy Kimberly saw in Petitioner’s car was the same gender and roughly the

same age as Petitioner’s son at the time. Petitioner’s wife testified that their son was with Petitioner

at the time of the attack.

        Based on the foregoing evidence, the jury convicted Petitioner of rape and attempted rape,

and the Tennessee Court of Criminal Appeals affirmed the conviction. See State v. Tankesly, No.

M1998-00683-CCA-R3-CD, 2000 WL 1521475, *11 (Tenn. Crim. App. Oct. 4, 2000). The court

concluded that the trial court’s admission of the undergarments was erroneous, because the

undergarments were irrelevant. See id. at *7. However, the court also concluded that the error was

harmless in light of the evidence of guilt offered against Petitioner, which it considered

overwhelming. See id.

        In his petition for state post-conviction relief, Petitioner raised several claims of ineffective

assistance of trial counsel. One of these claims alleged that trial counsel did not move to suppress

the undergarments. During the hearing on Petitioner’s post-conviction motion, defense counsel

testified regarding his trial preparation. Counsel explained that he initially planned to pursue an alibi

defense in which Petitioner’s friend would testify that Petitioner was fixing her computer at the time


                                                   5
                                            No. 11-5516

of the rape. But counsel declined to pursue that defense when it became clear that pursuing it would

open the door to testimony regarding a factually similar crime for which Petitioner was convicted.

Instead, after the rape victim proved unable to make a verbal identification of Petitioner during her

testimony, defense counsel chose to focus on that fact. Counsel also explained that “the case took

a completely different turn” when the undergarments were admitted, because the introduction of the

undergarments “had a chilling [e]ffect on the jury.” Because he believed that the undergarments

were such a significant piece of evidence against Petitioner, counsel made challenging their

introduction under Rule 404(b) one of the “critical issues” in Petitioner’s direct appeal. With respect

to the motion to suppress, defense counsel stated that he argued the motion “either the morning of

the trial or Friday before.” However, defense counsel’s testimony also vacillates about whether the

motion was in fact argued in court.

       The state trial court denied Petitioner’s request for post-conviction relief. The court reasoned

that counsel moved to suppress the undergarments with the paper motion he filed. The court also

noted that the Tennessee Court of Criminal Appeals concluded that the introduction of the

undergarments was harmless error, thus implying that Petitioner could not show that counsel’s more

thorough pursuit of the issue would have aided his defense. As the state post-conviction court

explained:

       from the transcripts of the proceedings, it appears as though trial counsel did in fact
       argue to have the undergarments suppressed at a hearing on December 4, 1997.
       [Defense counsel] actually filed a motion to suppress this particular evidence based
       on the grounds that the search warrant was defective, but as aforementioned, it was
       denied. This issue is without merit.




                                                  6
                                             No. 11-5516

The Tennessee Court of Criminal Appeals affirmed for the same reasons. See Tankesly v. State, No.

M2005-02008-CCA-R3-PC, 2007 WL 1890208, at *10 (Tenn. Crim. App. June 28, 2007).

        Petitioner sought federal habeas corpus relief while his petition for state post-conviction

relief was still pending. The petition argued that counsel’s conduct in challenging the officers’

seizure of the women’s undergarments denied him the right to effective assistance of counsel.

According to Petitioner, the undergarments were outside the scope of the agents’ search warrant and

therefore not subject to seizure. Since the warrant did not permit the seizure of the undergarments,

Petitioner argued that counsel should have challenged the seizure. While admitting that counsel filed

a paper motion to suppress the undergarments, Petitioner contended that counsel’s one-page

suppression motion insufficiently vindicated his Fourth Amendment rights. According to Petitioner,

defense counsel should have developed the motion more fully with some legal analysis and argued

the motion orally in front of the trial court.

        The district court appointed Petitioner counsel and held the case in abeyance until Petitioner

exhausted his claims in state court, after which the district court reopened the case. Respondent

sought dismissal, arguing that Petitioner failed to exhaust his claim in state court and, alternatively,

that Petitioner’s claim lacked merit. The district court denied Petitioner’s ineffective assistance

claim on the merits, granted Respondent summary judgment, dismissed the petition, and certified

Petitioner’s ineffective assistance claim for appeal. Petitioner timely appealed.




                                                   7
                                            No. 11-5516

                                           DISCUSSION

I.     Standard of Review

       On appeal of a denial of a petition for a writ of habeas corpus, we review the district court’s

conclusions of law de novo and its factual findings for clear error. Lovell v. Duffey, 629 F.3d 587,

593-94 (6th Cir. 2011). We accept the state court’s determination of a factual issue unless the

petitioner upsets the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Moss

v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002).

II.    Exhaustion of State Remedies

       Respondent contends that Petitioner failed to exhaust his ineffective assistance claim in state

court. A petitioner must exhaust all remedies available to him in state court before a federal court

can grant habeas relief. 28 U.S.C. § 2254(b)(1)(A). To exhaust a claim, the petitioner must “fairly

present[]” it in state court accompanied by some measure of factual and legal development. Hooks

v. Sheets, 603 F.3d 316, 320 (6th Cir. 2010) (internal quotation and citation omitted); see also

Slaughter v. Parker, 450 F.3d 224, 236 (6th Cir. 2006) (internal quotation and citation omitted)

(explaining that a petitioner “need not cite ‘chapter and verse’ constitutional law” in raising a claim

in state court but must be more specific than generally alleging constitutional violations). The

claim’s presentation must proceed through “one complete round of the State’s established appellate

review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). If the petitioner fails to exhaust

a claim in state court, and the claim would be time-barred if raised in state court at the time of his

federal habeas petition, that federal claim is procedurally defaulted. Awkal v. Mitchell, 613 F.3d 629,

646 (6th Cir. 2010) (en banc).


                                                  8
                                            No. 11-5516

        Respondent is correct that Petitioner’s claim has evolved in the course of state proceedings.

In his petition for state post-conviction relief, Petitioner claimed that trial counsel did not move to

suppress the undergarments. On appeal of the denial of his petition, Petitioner developed this

argument into the more specific claim that trial counsel failed to argue that the warrant did not permit

the seizure of the undergarments. While the latter claim is an outgrowth of the former claim, the

claims are not identical.

        However, in opposing Petitioner’s appeal in front of the Tennessee Court of Criminal

Appeals, the state did not argue that Petitioner failed to raise his claim before the state post-

conviction court. Therefore, the state waived the defense. An exhaustion defense is waived if it is

not asserted. Baze v. Parker, 371 F.3d 310, 320 (6th Cir. 2004). And if the failure to assert the

procedural bar leads the state court to address the claim on the merits, we may do the same.

Caldwell v. Mississippi, 472 U.S. 320, 327 (1985); see Baze, 371 F.3d at 320. The state’s appellate

brief opposes Petitioner’s claim on the merits, repeating the conclusion of the state post-conviction

court that counsel moved to suppress the undergarments. Thus, Petitioner asserted a claim before

the Tennessee Court of Criminal Appeals identical to the one he asserts here, and the state did not

invoke the procedural bar in defense of the claim. The Tennessee Court of Criminal Appeals then

addressed the claim on the merits. Tankesly, 2007 WL 1890208, at *10. Therefore, Respondent

waived his exhaustion defense.




                                                   9
                                             No. 11-5516

III.    Ineffective Assistance of Counsel Claim

        A.      Antiterrorism and Effective Death Penalty Act (“AEDPA”)

        The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this petition.

Under AEDPA, an application for a writ of habeas corpus will not be granted with respect to claims

adjudicated on the merits in state court proceedings unless the adjudication:

        (1)     resulted in a decision that was contrary to, or involved an unreasonable
                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 unreasonable determination of the
                facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

        A decision is “contrary to clearly established federal law if the state court arrives at a

conclusion opposite to that reached by the Supreme Court on a question of law or if the state court

decided a case differently than the Supreme Court on a set of materially indistinguishable facts.”

Jackson v. Bradshaw, 681 F.3d 753, 759 (6th Cir. 2012) (internal quotations and citations omitted).

A state court decision is based on an “unreasonable application” of clearly established federal law

if “the state court identifies the correct governing legal principle but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. (internal quotations and citations omitted). “Clearly

established federal law” means “the holdings, as opposed to the dicta, of the Supreme Court’s

decisions as of the time of the relevant state-court decision.” Lundgren v. Mitchell, 440 F.3d 754,

762 (6th Cir. 2006) (internal quotation and citation omitted). We review the state court’s

determination of mixed questions of law and fact under the “unreasonable application” element of

AEDPA. Jackson, 681 F.3d at 760.

                                                   10
                                            No. 11-5516

       We examine the last state-court decision on the merits, which in this case is the Tennessee

Court of Criminal Appeals’ denial of Petitioner’s request for post-conviction relief. Garcia v.

Andrews, 488 F.3d 370, 374 (6th Cir. 2007). AEDPA allows us to award a petitioner relief only if

the state court’s application of federal law is “objectively unreasonable” instead of simply incorrect.

Jackson, 681 F.3d at 759 (internal quotation and citation omitted). To conclude that a state court’s

application of federal law was unreasonable, we must decide that “there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts” with Supreme Court precedents.

Harrington v. Richter, 131 S. Ct. 770, 786 (2011). Under this inquiry, we must decide “what

arguments or theories supported or . . . could have supported, the state court’s decision.” Id. Then,

we must consider whether “fairminded jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision” of the Supreme Court. Id. We award relief only

if there is no basis for disagreement among fairminded jurists. Id.

       B.      Legal Framework

       A criminal defendant has the right to professional representation under the Sixth

Amendment. See Strickland, 466 U.S. at 687. If “counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result,” then the defendant has not been accorded his right to professional representation. Id. at 686.

Representation is deficient under Strickland when counsel acts so poorly that he “was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. In

order to prevail on an ineffective assistance of counsel claim, a petitioner “must demonstrate that

counsel’s representation fell below an objective standard of reasonableness and that the defendant


                                                  11
                                             No. 11-5516

was prejudiced by the ineffective assistance of counsel.” Carter v. Bell, 218 F.3d 581, 591 (6th Cir.

2000).

         To satisfy the prejudice element of Strickland, a petitioner must prove that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694. A reasonable probability is defined as “a

probability sufficient to undermine confidence in the outcome.” Id. We take into account “the

totality of the evidence before the . . . jury,” on the assumption that “a verdict or conclusion only

weakly supported by the record is more likely to have been affected by errors than one with

overwhelming record support.” Id. at 695.

         Petitioner faults counsel for his conduct in seeking the suppression of certain evidence seized

during a police search. A defense attorney’s failure to move to suppress evidence may form the basis

of a Sixth Amendment ineffective assistance claim. See Kimmelman v. Morrison, 477 U.S. 365, 375

(1986). In order to make out such a claim, the petitioner must “prove that his Fourth Amendment

claim is meritorious and that there is a reasonable probability that the verdict would have been

different absent the excludable evidence.” Id. at 375; see Joshua v. DeWitt, 341 F.3d 430, 437 (6th

Cir. 2003).

         C.     Analysis

         We face two unique challenges in deciding this appeal, owing first to the posture of

Petitioner’s ineffective assistance claim and second to a lacuna in the state court records before us.

On the first issue, Petitioner does not, and cannot, argue that trial counsel entirely failed to protect

his Fourth Amendment rights. In other cases in which we have found an attorney’s performance


                                                   12
                                             No. 11-5516

deficient for failing to raise a particular Fourth Amendment issue, trial counsel entirely failed to

lodge a Fourth Amendment challenge to the admission of evidence, and the merit of the defendant’s

underlying Fourth Amendment argument was obvious. See Joshua, 341 F.3d at 347; Northrop v.

Trippett, 265 F.3d 372, 382 (6th Cir. 2001). For example, in Joshua v. DeWitt, we concluded that

counsel performed deficiently when he moved to suppress evidence obtained from a Terry stop but

failed to cite a particular Supreme Court case with “clear precedential authority” and “unique factual

similarities” to the defendant’s case. Joshua, 341 F.3d at 441; see United States v. Hensley, 469 U.S.

221 (1985). In Northrop v. Trippett, the defendant was detained by officers based on an unverified

anonymous tip, and officers had no other basis for stopping the defendant. Northrop, 265 F.3d at

382. We found trial counsel’s performance deficient, because counsel “should have recognized” that

the stop was illegal and “did not file any motion challenging the seizure” of the defendant. Id. at

383.

        No such oversight occurred in this case. By filing his motion to suppress, counsel objected

to a potential Fourth Amendment violation and raised the issue and factual ground for the state

court’s decision. Thus, Petitioner’s claim amounts to the assertion that counsel filed the suppression

motion but abandoned it. Petitioner faults counsel for filing a motion with no case citations and little

factual development, but the issue counsel raised—whether the undergarments were outside the

scope of the search warrant—was straightforward and uncomplicated. Whether or not counsel could

have better served his client by arguing the motion to suppress more vigorously and providing more

case support, counsel nevertheless raised the issue and factual ground for the district court’s decision.




                                                   13
                                           No. 11-5516

Counsel’s act of raising the issue distinguishes this case from Joshua and Northrop and seriously

weakens Petitioner’s claim.

       Moreover, counsel’s one-page suppression motion was likely aimed reserving the issue in

order to argue it in court. That likelihood leads us to the second challenge presented by this case:

absent from the record before us is a transcript of a hearing on trial counsel’s motion to suppress.

Respondent complied with his duty of filing the records of Petitioner’s criminal proceedings with

the court below, but those records do not include a transcript of a suppression hearing. Petitioner

argues that the absence of such a transcript leads to the conclusion that no hearing occurred. On the

basis of this conclusion, Petitioner argues that counsel made no effort to argue the motion and

thereby abandoned it. For his part, Respondent contends that the motion was argued but that the

transcript was simply lost. The Tennessee Court of Criminal Appeals adopted the state post-

conviction court’s finding that the motion was argued at the hearing on December 4, 1997. This

finding is clearly erroneous, however, because our review of that hearing’s transcript clearly

demonstrates that counsel raised the prospect of filing a suppression motion but did not put forward

anything more than a passing argument about the scope of the warrant.

       Nevertheless, on balance, the record still supports a finding that a hearing occurred. At the

hearing on Petitioner’s motion for state post-conviction relief, defense counsel testified that he

argued his motion to suppress on the Friday before trial (December 5, 1997) or on the morning of

trial (December 8, 1997). A minute entry from the first day of trial notes, albeit briefly, that the

motion to suppress was overruled. The same minute entry states that the jury was impaneled and

heard the state’s opening statement, which supports defense counsel’s testimony that the motion was


                                                 14
                                            No. 11-5516

argued on the first morning of trial. And when the government sought to admit the undergarments

at trial and defense counsel objected, the judge explained that he had denied Petitioner’s motion to

suppress.

       In the face of this evidence, Petitioner contends that the record’s references to a suppression

hearing are actually misstated references to the December 4, 1997 motions hearing. Petitioner’s

argument is plausible, but, in light of the evidence available from the record, his

interpretation—supported only by the absence of a hearing transcript—is not sufficiently clear or

convincing to warrant the conclusion that no suppression hearing occurred. 28 U.S.C. § 2254(e)(1);

see Rice v. White, 660 F.3d 242, 254–57 (6th Cir. 2011) (finding that the record evidence

contradicted a state court’s finding regarding a prosecutor’s motive in using peremptory strikes in

a petitioner’s Batson challenge). And on a record that leads us to find that counsel orally argued his

suppression motion before the trial court, we are compelled to conclude that Petitioner’s ineffective

assistance claim is factually unfounded.

       To the extent that any doubt remains about whether trial counsel sought an oral hearing on

the motion, we find two other deficiencies in Petitioner’s claim. First, counsel made a valid strategic

choice in his method of challenging the introduction of the undergarments. In the course of deciding

whether counsel performed deficiently, we take care not to “second-guess” defensible strategic

decisions that ultimately fail. Strickland, 466 U.S. at 688. A defensible strategic choice “made after

thorough investigation of law and facts relevant to plausible options” is rarely a basis for habeas

relief. Id. at 690. Without derogating the importance of Petitioner’s Fourth Amendment rights, the

practical harm resulting from the collection of the undergarments was not their seizure outside the


                                                  15
                                           No. 11-5516

scope of the warrant but their admission into evidence during his trial. Counsel made the decision

to challenge the state’s attempt to introduce the undergarments under Tennessee Rule of Evidence

404(b). He did so by vigorously arguing that the undergarments were unduly prejudicial. See Tenn.

R. Evid. 403. The fact that the Tennessee Court of Criminal Appeals agreed with defense counsel’s

argument demonstrates its strength. See Tankesly, 2000 WL 1521475, at *7. We have explained

that a defense attorney may have “several possible arguments available” and may be forced to pursue

the one “most likely to succeed or [that] offers the greatest possible return” for the defendant. See

Cowans v. Bagley, 639 F.3d 241, 250 (6th Cir. 2011). The record demonstrates that counsel

surveyed the options available for excluding the undergarments and decided that the Rule 403

challenge was the strongest line of argument.         A valid decision of this sort is “virtually

unchallengeable.” Strickland, 466 U.S. at 690. Had the Fourth Amendment argument been the only

avenue available to counsel, and had counsel failed to explore that avenue for suppressing the

evidence, our analysis would be different. But even if Petitioner’s Fourth Amendment argument was

strong, counsel’s decision to pursue another strong argument was a decision “within the wide range

of reasonable professional” competence. Id. at 689.

       Second, while we are not bound by the Tennessee Court of Criminal Appeals’ harmlessness

conclusion, we agree with that court that Petitioner was not prejudiced by the undergarments because

the other evidence against him was strong.        Petitioner contends that the admission of the

undergarments prejudiced his defense, because, in the words of trial counsel, the undergarments “had

a chilling [e]ffect on the jury” and undercut the strategic benefit he gained when the victim did not

verbally identify Petitioner as her assailant in court. We conclude differently.


                                                 16
                                            No. 11-5516

        Petitioner’s trial was not reasonably likely to turn out better for him if counsel had argued

his motion to suppress at a separate hearing and if the undergarments had been suppressed. See

Strickland, 466 U.S. at 694. The testimony from Kimberly and Jimmy Gilkeson was strong evidence

against Petitioner. The Gilkesons parked outside the apartment complex laundry room and saw the

assailant leave while they were parking. Kimberly saw a blond-haired male child in the passenger

seat of the assailant’s car. At trial, Petitioner’s wife testified that she had left their children with

Petitioner on the day of the attack, and she described her son’s appearance consistently with

Kimberly’s description of the car. The Gilkesons parked next to the assailant’s car and had to wait

for him to enter his car before Kimberly could leave hers. The description of the car parked outside

the laundry room and driven by the assailant matched the description of the car Petitioner owned.

While waiting roughly fifteen seconds for the assailant to enter his car, Kimberly saw the assailant

and made eye contact with him. The Gilkesons then entered the laundry room to find the victim

wailing and claiming that the man who just left the laundry room had tried to kill her. Both

Kimberly and Jimmy Gilkeson later identified Petitioner as the assailant when they picked his picture

from a photo array outside each others’ presence and in court during each of their testimonies. The

jury’s verdict suggests that the jury found the Gilkesons’ testimony credible, making their testimony

strong independent evidence of Petitioner’s identity. While circumstantial, this evidence was strong

and it was reasonably likely to lead a jury to conclude Petitioner was the assailant even without the

aid of the undergarments.

        Petitioner overstates certain weaknesses in the prosecution’s case. Petitioner emphasizes the

fact that the victim, who was eight years old at the time of trial, was unable to make an in-person


                                                  17
                                             No. 11-5516

identification of Petitioner during her testimony. But Petitioner shaved his beard and cut off his

ponytail between the time of the rape and the time of trial, likely making it more difficult for the

child to recognize him. Moreover, the victim identified a picture of Petitioner taken roughly at the

time of the rape from a photo array put before her during her testimony.

        Petitioner also argues that the state relied heavily on the undergarments as evidence against

him during the prosecutors’ closing statements, but this argument incorrectly characterizes the

weight of the undergarments in the state’s case. The prosecutors referred to the undergarments

roughly four times in their closing statements, including one extended treatment of that evidence in

the state’s rebuttal. However, the lead prosecutor barely mentioned the undergarments in his initial

closing statement. And taken as a whole, the undergarments were given no greater weight in the

closing argument than other factual issues raised in the trial, including the Gilkesons’ identifications,

the victim’s photo identification, the changes Petitioner made to his appearance prior to trial, the

victim’s inability to make an in-court identification, the length of time Kimberly Gilkeson saw the

assailant as he walked out of the laundry room, and Petitioner’s claim that he walked with a limp at

the time of the rape.

        Any adverse effect to Petitioner’s case caused by the prosecutor’s comments was unlikely

to change the outcome of the trial. To be sure, to the extent that the introduction of the

undergarments was prejudicial, these references were naturally prejudicial as well. But the fact that

the comments about the undergarments helped the state’s case does not mean that Petitioner was

likely to be acquitted in their absence. We have recounted the evidence offered against Petitioner

excluding the undergarments, which was quite incriminating. In light of the Gilkesons’ testimony


                                                   18
                                            No. 11-5516

and the other evidence against Petitioner, any shortcomings in trial counsel’s performance likely did

not affect the outcome of Petitioner’s trial.

                                          CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s judgment.




                                                 19
