                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 03-2228
ALFRED MARTIN,
                                             Petitioner-Appellant,
                                 v.

JOHN EVANS, Warden,
                                             Respondent-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 01 C 7657—Harry D. Leinenweber, Judge.
                          ____________
   ARGUED MARCH 31, 2004—DECIDED SEPTEMBER 27, 2004
                          ____________



  Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
  BAUER, Circuit Judge. On November 8, 1993, Alfred
Martin’s wife, Jacqueline, went to his apartment to ask
whether he had bought their daughter a coat and to ask for
money. Martin says that when he refused to give her
money, Jacqueline started swinging at him. Martin says he
grabbed her by her shoulders, turned her around and pulled
her towards him; he was holding her with his left arm
across her chest and right arm across her neck. They fell
onto the couch and Jacqueline continued to kick and swing
and Martin held her tight until she stopped moving.
   The medical examiner who performed the autopsy testi-
fied that Jacqueline died of strangulation due to compression
2                                                No. 03-2228

of the neck and chest, noting that it would take a minimum
of two minutes of pressure for someone to die from neck or
chest compression.
   In January of 1996, a jury found Alfred Martin guilty of
first-degree murder and sentenced him to 50 years in pris-
on. After failing on direct appeal, Martin filed a petition for
writ of habeas corpus in the district court raising the
following claims: 1) appellate counsel rendered ineffective
assistance by refusing to raise “issues of merit” on direct
appeal; 2) the trial court erred in allowing the State to call
Shannon Carr, Jacqueline’s daughter, as a witness on the
eve of trial without granting Martin’s request for a continu-
ance; 3) the trial court abused its discretion in allowing the
State to cross-examine the petitioner about other crimes that
it could not prove; 4) the trial court abused its discretion in
allowing a weapon from a prior bad act to go to the jury
during deliberations; 5) the State knowingly introduced and
argued perjured testimony to establish intent; 6) prosecuto-
rial misconduct during closing argument when the State
told the jury how it should weigh the evidence; 7) trial
counsel rendered ineffective assistance; and 8) the petitioner
received an excessive sentence. The district court denied
federal habeas relief in a memorandum and order entered
on January 8, 2003.
  Three issues have been certified for appeal to this court:
1) whether Martin was denied his Sixth Amendment right
to effective assistance of appellate counsel; 2) whether the
above-stated claims three through seven were procedurally
defaulted; and 3) whether Martin’s claim regarding the
denial of a continuance is non-cognizable.


                       DISCUSSION
  Martin filed his petition for habeas corpus after the ef-
fective date of the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), so its standard of review governs
No. 03-2228                                                3

his claims. Lindh v. Murphy, 521 U.S. 320, 322 (1997).
Under the AEDPA, habeas relief is available only if the
petitioner demonstrates that the state court’s adjudication
of his federal constitutional claims “resulted in a decision
that was contrary to, or involved an unreasonable applica-
tion of, clearly established federal law as determined by the
Supreme Court of the United States” or “was based on an
unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d); McFowler v.
Jaimet, 349 F.3d 436, 446 (7th Cir. 2003).
  We begin with Martin’s ineffective assistance of appellate
counsel claim. Martin argues that he was denied his Sixth
Amendment right to effective assistance of counsel when his
counsel on direct appeal failed to raise several claims of
merit and failed to present all of the relevant facts in the
issues that were raised. Ineffective assistance of counsel
claims require the petitioner to establish that his counsel’s
performance fell below an objective standard of reasonable-
ness, and this deficiency actually caused prejudice. Strick-
land v. Washington, 466 U.S. 668, 687-88 (1984).
  An appellate counsel’s performance is deficient if he or
she fails to argue an issue that is both obvious and clearly
stronger than the issues raised. Lee v. Davis, 328 F.3d 896,
900-01 (7th Cir. 2003). However, counsel is not required to
raise every non-frivolous issue on appeal. Mason v. Hanks, 97
F.3d 887, 893 (7th Cir. 1996). There is a strong presumption
that counsel’s performance is reasonable and this presumption
has particular force when the ineffective assistance claim is
based solely on the trial court record. Yarborough v. Gentry,
540 U.S. 1 (2003). Martin argues that his appellate counsel
rendered ineffective assistance in not alleging various
instances of trial counsel’s ineffectiveness.
  At the trial, Jacqueline’s 11-year-old daughter, Shannon
Carr, testified that on August 22, 1991, Martin climbed up
into her bedroom window and asked to be let into the house;
she refused. She then heard Martin say, “If I can’t have her,
4                                                   No. 03-2228

can nobody have her.” Then she heard her mother screaming
and saw that her face had been cut and she called the police.
Officer Stan Mullins testified that on August 22, 1991, he
responded to a battery in progress at 4957 W. Erie. Upon
his arrival to the scene, he saw Jacqueline bleeding from
her left arm and face. He arrested Martin and placed him
in the squad car where he heard Martin say he, “should’ve
killed the bitch.”
  Martin faults trial counsel for failing to “prevent, impeach,
or dilute” the testimony of the victim’s daughter, Shannon
Carr, with regard to the August of 1991 prior bad act. Br. of
Petitioner at 17. Martin contends that his trial counsel was
inadequately prepared to defend against the State’s motion
to use the other crime evidence. Br. of Petitioner at 18. The
government argues that Martin waived this claim when he
failed to raise the issue to the district court. Martin did attack
appellate counsel for refusing to “present issues of merit on
direct appeal,” but he failed to specify any particular issues
and the district court interpreted “issues of merit” as “those
that the post-conviction court found to be waived,” which
included Martin’s ineffective assistance of trial counsel
claim. The post-conviction petition, however, reveals that the
petitioner did not challenge trial counsel’s representation on
the specific bases now asserted.
  Moreover, Martin concluded in error that his trial counsel’s
“complete lack of preparation” resulted in the grant of the
state’s motion. Rather, the court granted the motion be-
cause Illinois law expressly provides for the admissibility of
other crimes evidence to prove intent. People v. Illgen, 583
N.E.2d 515, 519 (Ill. 1991). The record establishes that
counsel vigorously represented Martin’s interests and set
forth the best possible argument in light of the clear state of
the law. His appellate counsel’s decision to refrain from at-
tacking trial counsel’s representation on this basis was not
objectively unreasonable. Lee, 328 F.3d 900-01. Moreover, be-
cause the underlying trial counsel claim is meritless, there is
No. 03-2228                                                   5

not reasonable probability that the outcome of the appeal
would have been different had counsel raised the issue. Id.
at 901.
   Martin argues next that his trial counsel failed to develop a
strategy to rebut Shannon Carr’s testimony. Martin finds
significance in the fact that Ms. Carr testified that she
heard Martin tell the victim “if he can’t have her, can no-
body have her” while the police report from the August of
1991 bad act stated that the victim informed the arresting
officer, Officer Mullins, that Martin said, “[i]f I can’t have
you, nobody’s gonna want you.” According to Martin, “[o]ne
statement suggests an intent to kill, the other suggests an
intent to make Jacqueline unattractive by cutting her face.”
Br. of Petitioner at 19. Martin contends that his counsel
should have cross-examined Officer Mullins or called his
partner to testify about the victim’s statement in an effort
to impeach the credibility of Ms. Carr. This argument offers a
distinction without a difference. The requisite intent for
first-degree murder is the intent to kill or cause great bodily
harm, or the knowledge that such acts will cause death, or
the knowledge that such acts will cause great bodily harm.
725 ILCS 5/9-1. Even if the police report supported Martin’s
argument that he intended only to slash the victim’s face,
the act certainly demonstrates an intent to cause great bod-
ily harm which is sufficient to sustain a conviction for first-
degree murder.
  Moreover, the same police report contains Martin’s state-
ment to the police that he “should’ve killed the bitch.” The
jury heard this evidence when Officer Mullins testified that
Martin “made a statement to me and my partner that he
should have killed the bitch.” Br. of Respondent at 17. The
trial counsel made an informed and strategic decision to not
cross-examine Officer Mullins with the police report as it
would have allowed the State to reiterate on redirect
examination Martin’s statement that he “should’ve killed
the bitch.” His counsel’s decision here was not objectively
6                                                   No. 03-2228

unreasonable, nor would the presentment of this issue on
direct appeal have changed the outcome. The Illinois
Appellate Court stated:
    Our careful review of the record reveals sufficient evi-
    dence from which the jury could have concluded that
    defendant intentionally or knowingly choked his wife to
    death. Evidence was introduced that defendant had
    previously attacked his wife and after one attack had
    stated that he should have killed her. Defendant was
    clearly aware that he had choked his wife, as evidence
    [sic] by the fact that he informed police officers of such
    when they arrived at the scene. Furthermore, according
    to the medical examiner introduced by the State,
    defendant must have squeezed his wife’s neck for at
    least two minutes in order to kill her. These facts are
    sufficient to uphold the jury’s finding that defendant
    committed first degree murder.
Br. of Respondent at 18.
  Martin also argues that his trial counsel was ineffective
in failing to argue that the weapon from the August of 1991
bad act should not have gone back with the jury during
deliberations because the prejudicial nature of the weapon
outweighed its probative value. Martin waived this argu-
ment by failing to present this specific ground of trial counsel’s
ineffectiveness in the district court. Winsett v. Washington,
130 F.3d 269, 273 (7th Cir. 1997). In any event, Martin is
unable to demonstrate that appellate counsel was objectively
unreasonable in not raising the issue or that there is a rea-
sonable probability that the result of his direct appeal
would have been different had this issue been argued.
  Martin further argues that his trial counsel’s failure to
“prevent, impeach, or dilute” Ms. Carr’s testimony allowed
the State to misrepresent the facts during closing argument
on the issue of intent. Br. of Petitioner at 20-21. Although
Martin expressly frames his issues in terms of trial coun-
No. 03-2228                                                 7

sel’s ineffectiveness, the argument ultimately challenges the
prosecution’s statements regarding Ms. Carr’s testimony. To
the extent that Martin is attempting to argue that appellate
counsel was ineffective for failing to raise the perjured
testimony issue, this claim lacks merit. Martin fails to offer
any support for the proposition that the State knowingly
used false testimony and because the perjured testimony
claim fails, so too does the corresponding ineffective as-
sistance argument.
  Martin’s final attack on his trial counsel’s representation
concerns the failure to file a post-trial motion to reduce his
sentence. Although he correctly notes that his counsel’s in-
action resulted in a waiver of his sentencing claim on direct
appeal, Martin fails to acknowledge that the Illinois
Appellate Court alternatively considered and rejected the
argument on the merits. Br. of Petitioner App. at 39.
   Finally, Martin argues that his appellate counsel was
ineffective in not raising the argument that the trial court
erred in allowing the State to cross-examine Martin about
events that it could not prove. Br. of Petitioner at 25. Spe-
cifically, Martin challenges the State’s questions concerning
the victim’s filing of divorce papers and instances where he
was escorted from Walgreens, the victim’s place of employ-
ment. The State asked Martin how many times he made an
appearance while the victim was working. He responded,
“[m]aybe two or three times. I don’t know.” Id. His defense
counsel objected and the court overruled the objection. The
State then asked, “[h]ow many of those times did you have
to be escorted out?” and Martin answered, “[n]ever. Never
that I can remember, not one time.” Id. His trial counsel
objected and requested a sidebar. During the sidebar, the
State conceded that it could not “prove it up” and the court
subsequently instructed the jury to disregard the question
and answer and by instructing the jury to disregard ques-
tions to which objections were sustained. People v. Hall, 743
N.E.2d 521, 544 (Ill. App. Ct. 2000).
8                                                No. 03-2228

  Martin’s attack on the State’s question regarding the
divorce papers is similarly baseless. The prosecution asked
Martin, “[w]hen did you find out she had filed for divorce?”and
Martin responded, “[s]he never said that she did.” Br. of
Respondent at 24. His trial counsel objected and the court
overruled the objections. His counsel requested a sidebar,
and during the sidebar, the court asked the State if it had
any evidence of the filing of divorce papers. The prosecutor
informed the court, “I only know the mother told me yes-
terday that the divorce papers arrived the day she died, and
that what the mother told me.” Id. The court again over-
ruled the objection and instructed the State to tender the
divorce papers if it had them. Id. Martin’s argument is
premised on the assertion that the State could not prove
that the victim filed for divorce. This theory, however, fails
to acknowledge that the prosecution had reason to believe
the divorce had been filed based on the mother’s representa-
tions. There was no ineffective assistance of counsel to
discuss.
  And so we move to the issue of procedural default. The
district court’s ruling on procedural default is reviewed de
novo. Page v. Frank, 343 F.3d 901, 905 (7th Cir. 2003). Pro-
cedural default occurs when a petitioner fails to follow the
state procedural requirements on presenting federal claims
and therefore deprives the state court of the opportunity to
address those claims. Id. at 732. Such claims are defaulted
as:
    [a] federal court will not review a question of federal
    law decided by a state court if the decision of the state
    court rests on as state procedural ground that is inde-
    pendent of the federal question and adequate to support
    the judgment.
Moore v. Bryant, 295 F.3d 771, 774 (7th Cir. 2003).
  The district court properly found the following claims pro-
cedurally defaulted in accordance with the independent and
No. 03-2228                                                 9

adequate state ground doctrine: 1) the trial court abused its
discretion in allowing the State to cross-examine the
petitioner about other crimes that it could not prove; 2) the
trial court abused its discretion in allowing the weapon
from the August of 1991 bad act to go back with the jury
during deliberations; 3) prosecutorial misconduct occurred
during closing arguments when the State told the jury how
it should weigh the evidence; and 4) the petitioner was
denied the effective assistance of counsel at trial. The post-
conviction court concluded that each of the above-stated
claims were waived as the issues involved matters of record
which could have been raised on direct appeal. Br. of
Petitioner App. at 129. The court’s express reliance on the
established rule of waiver renders the claims procedurally
defaulted for the purpose of federal habeas review. Moore,
295 F.3d at 774.
  Martin contends that his procedurally defaulted claims
should be reviewed on the merits because appellate counsel’s
ineffectiveness provides “cause” for the default. Br. of
Petitioner at 27. Because Martin’s underlying ineffective
assistance claims lack merit, the argument similarly fails
as an assertion of cause.
  Now the penultimate claim of error: the state court’s
adjudication of Martin’s perjured testimony complaint. The
Supreme Court precedent governing perjured testimony re-
quires a new trial if a criminal defendant establishes: 1) the
State presented perjured testimony; 2) the State knew or
should have known of the perjury; and 3) there is some
likelihood that the testimony could have affected the ver-
dict. United States v. Agurs, 427 U.S. 97, 103 (1976).
  The post-conviction court properly identified and applied
the Agurs standard and concluded that the prosecution did
not use perjured testimony, stating:
    defendant has failed to substantiate his allegations that
    Shannon Carr gave perjured testimony. Defendant has
10                                               No. 03-2228

     provided no supporting documentation whatsoever.
     Defendant’s claim of perjury is, thus, nothing more than
     a bald conclusion. As such, it does not warrant relief.
Br. of Petitioner App. at 129. The court further determined
that Martin had not demonstrated that the prosecutors
knew or should have known of any falsity in Carr’s testimony,
and that the evidence against Martin was substantial and
that there was no likelihood that even if it was perjured
testimony, that the outcome would have been different. Id.
  And finally, Martin argues that the trial court abused its
discretion when it denied his request for a continuance to
interview Shannon Carr. The district court, however, prop-
erly determined that this claim is non-cognizable for the
purpose of federal habeas review. Martin has the burden of
demonstrating that he is “in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C § 2254(a). The trial court’s denial of a continuance,
however, is a matter of state evidentiary law that does not
provide a basis for federal habeas relief. United States ex
rel. Searcy v. Greer, 768 F.2d 906, 913 (7th Cir. 1999). Never-
theless we note that, on the day before trial, the prosecution
interviewed the victim’s family and discovered that Shannon
Carr was at home during the events on the 22nd of August,
1991. The State contacted defense counsel and left a voice
mail message indicating that it intended to call Ms. Carr as
a witness to testify about the incident. The following
morning, defense counsel moved for a continuance to
interview the witness in a neutral setting and the prosecu-
tion informed the court that it had no knowledge that Ms.
Carr was home until it interviewed the family and further
stated, “I was planning on proceeding with just the police
officer who arrived on the scene and pulled the defendant
off, but the daughter, in fact was part of the incident.” Br.
of Respondent at 35. The prosecution further stated that it
would provide defense counsel with Ms. Carr’s address and
that it would make the witness available the following
No. 03-2228                                                11

morning if the defense counsel wished an interview. After
instructing the State to tender the address and to make the
witness available, the court denied the motion for a continu-
ance and subsequently denied defense counsel’s request to
interview Ms. Carr in a neutral setting.
  Martin fails to demonstrate that the trial court’s denial of
a continuance denied him due process; the court clearly
conditioned its ruling on Ms. Carr’s availability to be inter-
viewed the following morning, thereby rendering the need
for a continuance unnecessary.
  Based on the foregoing analysis, Alfred Martin is not
entitled to federal habeas relief on any of his claims.
                                                  AFFIRMED.
A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—9-27-04
