In the
United States Court of Appeals
For the Seventh Circuit

No. 98-1355

Timothy Cossel,

Petitioner-Appellant,

v.

Charles Miller,

Respondent-Appellee.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. EV 97-87-C-B/H--Sarah Evans Barker, Chief Judge.


Argued July 12, 2000--Decided October 12, 2000



      Before Ripple, Rovner, and Williams, Circuit Judges.

      Williams, Circuit Judge. Timothy Cossel filed
this habeas corpus petition challenging his 1989
state convictions for rape, criminal confinement,
criminal deviate conduct, battery, and burglary,
in part on the ground that his trial counsel
rendered constitutionally ineffective assistance
of counsel by failing to properly object to
testimony by the victim relating to her
identification of him as her attacker. In state
post-conviction proceedings, the state courts
rejected this claim, reasoning that the victim
had an independent basis for her in-court
identification of Cossel, which eliminates any
argument that trial counsel could have been
ineffective in failing to object to her
testimony. The federal district court dismissed
Cossel’s habeas corpus petition with prejudice on
the ground that the Indiana Court of Appeals did
not misapply federal law. Because we cannot
agree, we reverse.

I

      State court findings of fact are presumed
correct unless the petitioner rebuts the
presumption with "clear and convincing" evidence.
28 U.S.C. sec. 2254(e)(1). Cossel does not
challenge the state court findings regarding the
facts of the crime, so they control. The state
appellate court found as follows:
      On April 25, 1983, shortly after 10:15 p.m.,
K.D. put her child to bed and went to bed
herself. She was awakened shortly thereafter when
a man removed her covers, pulled up her nightgown
and jumped on her, putting a knife to her back.
The attacker then threatened to kill both her and
the child if she resisted.


      The attacker attempted to engage in anal sex,
which was extremely painful for K.D. The man then
warned her not to look at his face, turned her
over and covered her face with a pillow. He then
raped K.D. He then turned her back over, jabbed
her in the back with the knife and told her if
she reported the assault that he would kill her
and the child. The man then left.

Cossel v. State, 675 N.E.2d 355, 358 (Ind. Ct.
App. 1996) (quoting earlier unpublished order
affirming Cossel’s conviction).

      Although the police originally suspected another
man, they eventually turned their attention to
Cossel. In July 1984, police officer Joe Davis
arranged for K.D. to view a photographic array
that included a picture of Cossel./1 When K.D.
was unable to identify any of the people in the
photographs as the attacker, Officer Davis
singled out Cossel’s picture, identified the
photo as a picture of Tim Cossel, and showed it
to K.D. Again, K.D. did not recognize Cossel.
Cossel’s picture was the only one K.D. remembered
Officer Davis singling out to show her.

      Almost two years later, in May 1986, Officer
Davis had K.D. accompany him to Owensboro,
Kentucky, to view a lineup. K.D. testified that
Officer Davis told her the reason for this lineup
was that Cossel was in Owensboro. K.D. was under
the impression that Cossel would be in the lineup
and she was to see if she could recognize him.
K.D.’s husband had told her that he believed
Cossel was the attacker, and K.D. testified at
trial that she was under the impression that
Officer Davis believed that as well. K.D. did
identify Cossel in the lineup, but she did not
recognize his voice. Based on K.D.’s
identification, the state charged Cossel with
rape, criminal confinement, criminal deviate
conduct, battery, and burglary.

      Prior to trial, defense counsel did not move to
suppress or otherwise limit trial testimony
relating to K.D.’s identification of Cossel as
her attacker, despite having notice of the
circumstances surrounding that identification. At
trial, therefore, the state elicited testimony
from K.D. and Officer Davis regarding the photo
array, the one-photograph show-up, and the
Owensboro lineup. K.D. also identified Cossel in
court during the trial. Counsel failed to make a
contemporaneous objection to the admission of
either the out-of-court identification procedures
or K.D.’s in-court identification. Instead,
counsel waited to object until the close of
K.D.’s testimony and then later moved to dismiss
at the close of the state’s case-in-chief. The
trial court overruled the objection and denied
the motion. In denying the motion to dismiss, the
court explained:

This court was extremely careful in listening to
the identification evidence because the police
officer involved, Officer Davis, has repeatedly
and consistently ruined cases by impermissibley
[sic] suggestive conduct. I do think in this case
the evidence is sufficient for several reasons
that this case need not be thrown out because of
an impermissibley [sic] suggestive i.d., lineup.
Therefore, I’ll let the matter go and if there’s
a conviction I’m sure that matter will be
carefully looked at by the Court of Appeals.

      In reaching this conclusion, the trial court
was presumably relying on the strength of K.D.’s
testimony regarding what she was able to see the
night of the attack and why, apart from the out-
of-court identifications, she believed Cossel was
her attacker. Her testimony in this regard was
later summarized by the Indiana Court of Appeals:

K.D. testified that although the house was
"shadowy," she could clearly see because there
was light from the moon and a street light
shining into the house. K.D. observed Cossel’s
face for approximately ten seconds when she was
being turned from her stomach to her back. While
K.D. was lying on her back, she was able to view

Cossel’s chin and mouth area. Because Cossel was
on top of K.D., the distance between the two
parties was not great. After seeing Cossel’s
face, K.D. "felt like [she] knew this person" and
that he knew K.D. K.D. testified that she had
seen Cossel three months earlier when she and her
husband had purchased a vacuum cleaner.
Cossel, 675 N.E.2d at 361 (citations omitted).

      The only other evidence linking Cossel to
K.D.’s rape were the results of a serological
analysis, which concluded that K.D.’s attacker
was in a class of at least 32% of the population
who are "non-secreters," and possibly an even
larger segment of the population that includes
"secreters" whose serological samples have been
"diluted out." Cossel is a non-secreter. But the
DNA tests were inconclusive, there were no
fingerprint matches, and none of the hair strands
taken from K.D.’s rape kit could have come from
Cossel. There was, however, one strand of pubic
hair that matched neither K.D. nor Cossel.
Finally, a footprint outside of K.D.’s window was
identified as that of the attacker. The print was
from a lug-soled work boot and measured 13 inches
in length. Cossel did not own any shoes or boots
matching the footprint, and when the sole of his
shoe was measured in court, it was only 12 inches
long./2 On the basis of the evidence against
him, Cossel was found guilty by a jury and
sentenced by the court to 148 years’
imprisonment.

      On direct appeal, Cossel was represented by
trial counsel. Counsel appealed the district
court’s admission of K.D.’s identification
testimony, and the state conceded that the out-
of-court identification was impermissibly
suggestive. The state argued, however, that an
independent basis for K.D.’s in-court
identification existed because she saw her
attacker for ten seconds during the rape. The
Indiana Court of Appeals declined to address the
merits of this dispute because Cossel’s counsel
had waived the issue by not making a
contemporaneous objection.

       Cossel then filed a petition for state post-
conviction relief, based in part on his claim
that counsel was constitutionally ineffective for
not objecting contemporaneously to K.D.’s
identification of Cossel. The state post-
conviction judge, who also had presided over
Cossel’s trial, ordered an evidentiary hearing at
which Cossel’s trial counsel testified. Counsel,
who by that time had been suspended from the
practice of law for reasons unrelated to Cossel’s
case, testified that he knew before trial that
there were problems with the pretrial
identifications being unduly suggestive. Counsel
also stated that he thought the objection he made
at the close of K.D.’s testimony would preserve
the issue for appeal. Finally, when asked whether
it was part of his strategy to withhold his
objection to the identification testimony,
counsel responded, "No, it was not a strategy
move." Following the hearing, the state court
denied Cossel’s petition. Cossel appealed, and
the Indiana Court of Appeals found that any error
in admitting evidence of the impermissibly
suggestive lineup identification was harmless
because the in-court identification had
sufficient independent support, and thus Cossel’s
counsel was not ineffective. It is unclear from
the present record whether Cossel filed a
petition for transfer to the Indiana Supreme
Court.
      Cossel next filed a petition for a writ of
habeas corpus in the United States District Court
for the Southern District of Indiana. The
district court dismissed the petition with
prejudice, holding, in relevant part, that the
Indiana Court of Appeals’s application of
Strickland v. Washington, 466 U.S. 668 (1984), to
Cossel’s ineffective assistance of counsel claims
was a reasonable application of federal law.
Cossel appealed and this court issued a
certificate of appealability for Cossel’s claim
of ineffective assistance of counsel as it
pertained to trial counsel’s failure to properly
object to the victim’s identification of Cossel.


II

      Before coming to the merits of Cossel’s appeal,
we must address the state’s argument, made for
the first time on appeal, that Cossel has
procedurally defaulted the ineffective assistance
of counsel claim he advances in this court by
failing to present the claim to the Indiana
Supreme Court. See O’Sullivan v. Boerckel, 526
U.S. 838, 844-45 (1999) (holding that petitioners
must invoke one complete round of a state’s
established appellate review process). This is a
somewhat remarkable argument, given that, before
the district court, the state specifically noted
that, in contrast to many of Cossel’s ineffective
assistance of counsel claims, the one under
consideration in this appeal was adequately
presented to the state courts and had been
preserved for federal review./3 A litigant that
fails to present an argument to the district
court cannot rely on that argument in the court
of appeals, and this rule certainly encompasses
a litigant that adopts a position on appeal that
is contrary to its position in the district
court. Thus, by failing to make its procedural
default argument to the district court, the state
has waived the argument. See Hernandez v. Cowan,
200 F.3d 995, 997 (7th Cir. 2000); Henderson v.
Thieret, 859 F.2d 492, 497-98 (7th Cir. 1988).

      In any event, the state has provided no support
for its position that Cossel failed to present
the claim now on appeal to the Indiana Supreme
Court. The state simply asserts that "Cossel’s
failure to present the ineffectiveness claim in
his petition to transfer to the Indiana Supreme
Court preclude[s] this [c]ourt from addressing
those claims on federal collateral review," and
then cites to two docket sheets reprinted in the
appendix to its brief. We cannot tell what courts
these docket sheets are from, or where they make
any reference to the claims raised in or omitted
from Cossel’s petition for transfer to the
Indiana Supreme Court. Indeed, we can find no
copy of Cossel’s petition for transfer in the
record, thus we have no way of verifying the
state’s assertion.

III

      Because Cossel disputes only the Indiana Court
of Appeals’s legal conclusion that K.D.’s in-
court identification was independently supported
by her ten-second viewing of her assailant during
the attack, 28 U.S.C. sec. 2254(d)(1) governs our
review of Cossel’s ineffective assistance of
counsel claim. Under sec. 2254(d)(1), a
petitioner cannot obtain habeas corpus relief on
a claim that the state courts have addressed on
the merits unless the decision handed down by the
last state court to consider the claim is
"contrary to, or involved an unreasonable
application of, clearly established federal law,
as determined by the Supreme Court of the United
States." 28 U.S.C. sec. 2254(d)(1); see Williams
v. Taylor, 120 S. Ct. 1495, 1523 (2000). A state
court decision is "contrary to" clearly
established 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 decides a case differently than [the
Supreme] Court has on a set of materially
indistinguishable facts." Williams, 120 S. Ct. at
1523. A state court decision is an "unreasonable
application of" clearly established law "if the
state court identifies the correct governing
legal principle from [the Supreme] Court’s
decisions but unreasonably applies that principle
to the facts of the prisoner’s case." Id.

      In order to establish a constitutional basis
for habeas corpus relief, Cossel must first show
that his counsel’s performance fell below an
objective standard of reasonableness. See
Strickland v. Washington, supra, 466 U.S. at 687-
88. There was no physical evidence linking Cossel
to the attack on K.D.; thus, K.D.’s
identification of Cossel was the pivotal evidence
in the case. Nevertheless, Cossel’s counsel did
not move to suppress any evidence regarding the
out-of-court identification procedures, nor did
he argue that any in-court identification that
K.D. might make would necessarily be tainted by
the suggestive out-of-court procedures. Once the
trial was underway, counsel did not object to
either the evidence about the out-of-court
identification procedures or K.D.’s in-court
identification until after K.D. had finished her
testimony. As a result, Cossel was denied both a
pre-trial ruling and a contemporaneous ruling on
the admissibility of the identification
testimony. Counsel’s inaction also led the
Indiana courts to deem the issue waived.
      This court confronted similar conduct in
Rodriguez v. Young, 906 F.2d 1153, 1161 (7th Cir.
1990), in which counsel did not move to suppress
a witness’s in-court and out-of-court
identification testimony, although police had
presented her with an apparently unduly
suggestive show-up. In Rodriguez, this court
concluded that counsel’s failure to file a
suppression motion "was not a decision that might
be considered sound trial strategy, or the result
of reasonable professional judgment. It was
objectively unreasonable and outside the wide
range of professionally competent assistance."
Id. (internal quotation marks and citations
omitted). Similarly, counsel’s actions in not
moving to suppress or object to K.D.’s
identification testimony fell below Strickland’s
objective reasonableness standard.
      Cossel must next show that there is a
reasonable probability that, but for his trial
counsel’s errors, the result of his trial would
have been different. Strickland, 466 U.S. at 694.
Such a probability exists if counsel’s errors
undermine confidence in the jury’s verdict. Id.
Because K.D.’s identification testimony was the
primary and most compelling evidence introduced
against Cossel at trial, whether his trial
counsel’s failure to object to K.D.’s
identification testimony was prejudicial turns on
whether properly made objections to this
testimony should have been sustained.

      A defendant has a due process right not to be
identified prior to trial in a manner that is
"unnecessarily suggestive and conducive to
irreparable mistaken identification." Stovall v.
Denno, 388 U.S. 293, 301-02 (1967). As early as
Cossel’s direct appeal, the state conceded that
the single-photograph show-up and Owensboro
lineup were indeed "unnecessarily suggestive" and
conducive to misidentification. Therefore, K.D.’s
testimony regarding these out-of-court
identifications should have been suppressed. This
conclusion does not resolve whether all of K.D.’s
identification testimony should have been
suppressed, however, as K.D. also identified
Cossel in court, and in-court identifications are
sometimes admissible despite a flawed pre-trial
identification.

      An in-court identification that follows an
impermissibly suggestive pre-trial identification
is admissible if under the "totality of the
circumstances" the in-court identification was
reliable. United States v. Duprey, 895 F.2d 303,
307 (7th Cir. 1989); see also Simmons v. United
States, 390 U.S. 377, 384 (1968). In determining
whether an identification is reliable despite
suggestive pre-trial identification procedures,
courts look to the "Biggers factors": (1) the
opportunity of the witness to view the criminal
at the time of the crime, (2) the witness’s
degree of attention at the time of the crime, (3)
the accuracy of the witness’s pre-identification
description of the criminal, (4) the level of
certainty demonstrated by the witness at the time
of the identification, and (5) the length of time
between the crime and the identification. United
States v. Newman, 144 F.3d 531, 536 (7th Cir.
1998); see also Manson v. Brathwaite, 432 U.S.
98, 114 (1977); Neil v. Biggers, 409 U.S. 188,
199-200 (1972). When the suggestiveness of the
out-of-court identification has been conceded,
the government bears the burden of proving by
clear and convincing evidence that the in-court
identification was based upon observations of the
suspect other than at the prior, illegal
identification, or, alternatively, of proving
that the error complained of was harmless beyond
a reasonable doubt. United States v. Wisniewski,
741 F.2d 138, 143 (7th Cir. 1984) (citing United
States v. Wade, 388 U.S. 218, 240 (1967), and
Chapman v. California, 386 U.S. 18, 24 (1967)).
The state has consistently argued, and the
Indiana and federal courts have consistently
agreed, that, using the totality of the
circumstances analysis set forth in Biggers and
its progeny, K.D.’s in-court identification of
Cossel was independently reliable.

      But this conclusion is unsound. True, there is
a plausible argument that the circumstances
surrounding K.D.’s identification satisfy the
first two of the five Biggers factors. Cossel
concedes that K.D. had a ten-second window in
which to view her assailant by the light of the
moon and street light. K.D. was also able to view
her assailant from a very close distance and,
although Cossel disputes this, one can presume
she viewed him with the level of attention likely
from the victim of such a crime. See Biggers, 409
U.S. at 201 (rape victim giving identification
testimony "was no casual observer, but rather the
victim of one of the most personally humiliating
of all crimes").

      However significant these two factors may be on
their own, they are completely undermined by two
of the remaining three factors./4 First and
perhaps foremost, Cossel does not fit the pre-
identification description K.D. provided of her
attacker. In testimony before a grand jury in
March 1984, K.D. described a man slightly smaller
than her husband and definitely smaller than
Cossel. She stated that the attacker was no
taller than six feet and weighed between 140 and
150 pounds. In fact, K.D. stated that she
initially mistook the assailant for her husband,
who is six feet tall and weighed 160 pounds. K.D.
also stated that the attacker could not possibly
have been as large as a man she knew who was 6’3"
tall and weighed between 220 and 230 pounds.
Cossel is 6’3" tall and weighed between 215 and
220 pounds at the time of the attack. Moreover,
when first presented with a picture of Cossel in
the photo array over a year after the attack,
K.D. did not recognize him. Even after he was
singled out and presented to her as the police’s
favored suspect, K.D. still did not recognize
him. K.D. did eventually single out Cossel, in
the lineup in Owensboro three years after the
attack, but even then, she did not recognize his
voice.

      Furthermore, an extraordinarily long period of
time elapsed between the attack and K.D.’s
identification of Cossel. The attack occurred in
April 1983. K.D. did not recognize Cossel until
three years later, in the Owensboro lineup. The
in-court identification did not occur until six
years after the attack. Yet, in Biggers the
Supreme Court observed that a lapse of seven
months between the rape and the confrontation
"would be a seriously negative factor in most
cases." 409 U.S. at 201. The Court felt that the
seven-month time lapse nevertheless was
outweighed by the fact that the defendant was not
included in any of the previous photo arrays or
show-ups, and the victim had not previously
identified anyone else from the photo arrays or
at the show-ups. Id. The same is not true here.
A delay over ten times longer than that the
Supreme Court called "problematic" in Biggers
preceded K.D.’s in-court identification of
Cossel. Moreover, during that delay K.D. twice
failed to identify Cossel as the assailant, even
when he was presented to her as the police’s
favored suspect.

      In light of the totality of the circumstances
surrounding K.D.’s in-court identification of
Cossel as her attacker, we are of the opinion
that K.D.’s in-court identification lacks
sufficient independent reliability to be
admissible. The unduly suggestive pre-trial
identification procedures used by the police
irreparably tainted that and all other
identifications made by K.D. Moreover, the
circumstances surrounding K.D.’s in-court
identification so clearly compel our conclusion
in this regard that the Indiana Court of
Appeals’s decision to the contrary must be
considered an unreasonable application of Biggers
and the other Supreme Court precedents bearing on
this issue. As such, and because the
reasonableness of the Indiana Court of Appeals’s
decision on Cossel’s ineffective assistance of
counsel claim depends on its Biggers analysis, we
conclude that the decision by the Indiana Court
of Appeals to reject Cossel’s ineffective
assistance of counsel claim was an unreasonable
application of clearly established federal law.
Accordingly, Cossel has satisfied the
requirements for habeas corpus relief under 28
U.S.C. sec. 2254(d)(1).

IV

      For the foregoing reasons, the judgment of the
district court is Reversed and the case is Remanded
to the district court with instructions to grant
Cossel a writ of habeas corpus unless the state
retries him within 120 days.

/1 The state post-conviction trial court and the
Indiana Appellate Court assert that this photo
array took place in July 1984. Cossel states that
it took place in July 1985, and K.D., in her
testimony at trial, also stated that it took
place in July 1985. When questioned at trial,
Officer Davis testified that he had no
recollection of the photo array or when it might
have taken place.

/2 The state also elicited testimony from two other
sexual assault victims who claimed that Cossel
was the person who had attacked them (charges in
both cases had been dropped). Both were allowed
to testify, over counsel’s objection, to the
details of their sexual assaults. An Indiana rule
allowed their testimony to be admitted against
Cossel on the theory that it showed Cossel had a
"depraved sexual instinct." In 1992, the Indiana
Supreme Court rejected this rule on the ground
that it allowed overly-prejudicial evidence to be
admitted, and in its stead adopted Fed. R. Evid.
404(b). Lannan v. State, 600 N.E.2d 1334, 1338-39
(Ind. 1992).

/3 Moreover, when the state initially briefed this
appeal, in response to Cossel’s pro se brief, the
state argued only that his claim failed on the
merits; it made no mention of procedural default.
The state (represented by the same lawyer who
wrote the initial appellate brief) did not assert
that Cossel had procedurally defaulted his claim
until this court appointed counsel for Cossel,
ordered the parties to rebrief the appeal, and
set the case for oral argument.

/4 The fourth Biggers factor--the level of certainty
demonstrated by the witness at the time of the
identification--has little relevance here, where
the level of certainty a witness demonstrates is
just as likely to be a product of a prior unduly
suggestive identification as it is to be a
product of an independent recollection of the
crime. See Rodriguez, 906 F.2d at 1163
(expressing skepticism about the significance of
witness certainty in such a situation). Thus,
although K.D. demonstrated no uncertainty at
trial in identifying Cossel as her attacker, that
fact must be considered in light of the
suggestive identifications she participated in
prior to trial, as well as the level of
uncertainty she expressed at those
identifications. For these reasons, the fourth
Biggers factor does not lend support to any
particular conclusion regarding the independence
of K.D.’s in-court identification.
