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

No. 03-1706
MICHAEL FLOYD,
                                             Petitioner-Appellant,
                                 v.


CRAIG A. HANKS, Superintendent,
                                            Respondent-Appellee.

                          ____________
            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
            No. 01 C 303—Sarah Evans Barker, Judge.
                          ____________
    ARGUED OCTOBER 28, 2003—DECIDED APRIL 1, 2004
                   ____________



  Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
  BAUER , Circuit Judge. This habeas corpus appeal comes
to us following Michael Floyd’s conviction for criminal con-
finement, rape and conspiracy to commit rape. He was sen-
tenced to serve 110 years in prison. Floyd appeals on the
basis of ineffective assistance of counsel and a violation of
his due process rights. We affirm the ruling of the district
court.
2                                                 No. 03-1706

                       I. Background
  On July 13, 1983 Lori Quackenbush was abducted at
gunpoint when she left her place of work. Ron Deckard, her
abductor, blindfolded, handcuffed and gagged Quackenbush,
and drove her to a remote location where Deckard met with
a second man who raped her. During the rape, Deckard
continued to threaten her with the gun. After the rape,
Deckard gave Quackenbush her car keys and allowed her to
leave. She drove home, called the sheriff and underwent a
medical exam to facilitate the collection of evidence.
   Floyd was indicted for the rape of Quackenbush. At
Floyd’s trial, Deckard testified as to the details of the crime,
stating that Floyd had committed the actual rape.
Quackenbush also identified Floyd at trial, explaining that
she had heard his voice during the assault, and recognized
it from other conversations she had had with Floyd prior to
July 13. Additional testimony against Floyd was presented
by a polygraph examiner, the doctor who examined
Quackenbush following the rape, the investigating officers,
and a witness who could place Floyd with Deckard on the
night in question.
  In defense, Floyd testified that he did not participate in
the crime, and that Deckard was lying. Floyd was convicted
and sentenced to 110 years in prison.
  Floyd now complains that he was denied effective assist-
ance of counsel during trial. Specifically, he believes his
attorney erred by failing to introduce a serology report,
failing to introduce the examining doctor’s notes concerning
Quackenbush, not using Floyd’s mother as an alibi witness,
and not cross-examining witnesses who appeared for the
sentencing portion of Floyd’s trial. Floyd also complains
that the prosecution violated his due process rights by
failing to list a rebuttal witness who would contradict
Floyd’s alibi defense.
No. 03-1706                                                    3

                         II. Analysis
  We review this habeas appeal under the guidelines in the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). The writ will not issue unless Floyd can show
that the state court adjudication “(1) resulted in a decision
that was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law . . . or (2) resulted in
a decision that was based on an unreasonable determina-
tion of the facts in light of the evidence . . . .” 28 U.S.C. §
2254(d).
  This is a difficult standard to meet; the Supreme Court
has noted that “unreasonable” means more than merely an
incorrect or erroneous application of law. Wiggins v. Smith,
123 S. Ct. 2527, 2529 (2003).


A. Ineffective Assistance of Counsel
  Floyd asserts that he was denied his Sixth Amendment
Right to effective assistance of counsel during his trial.
Under the Strickland test, Floyd must show: first, that
his attorney’s performance was “deficient” and, second, that
the deficient performance resulted in “prejudice.” Strickland
v. Washington, 466 U.S. 668, 688-91 (1984). Generally, to
demonstrate prejudice, an appellant must show a “reason-
able probability” that, absent the errors, the result of the
trial would have been different. Id. at 694. The attorney’s
errors are considered both individually and collectively for
prejudice. Id. at 696. On a habeas appeal, we look at this
test not directly, but rather ask whether the lower court
made a reasonable application of this law to the facts of the
case.


  1. Serology Lab Report
  Floyd complained of several attorney errors. The first
concerns FBI lab results on serology samples taken from
4                                                      No. 03-1706

the victim following the attack. Five of the six samples
taken were inconclusive, but one sample matched that of
a person with blood type A. Floyd is of blood type O.
Although Floyd’s attorney was in possession of the lab re-
sults at the time of trial, he did not use them in Floyd’s
defense. The Indiana Court of Appeals noted that in light of
the overwhelming evidence presented against Floyd, the lab
reports would not have had a reasonable probability of
changing the outcome of the trial.1 Such analysis is not
unreasonable, given that five of the six samples did not rule
out Floyd, and the one type A result could be explained by
the fact that Quackenbush had intercourse with her
boyfriend (who is blood type A) two days before the attack.
  Floyd counters this, citing to a case where we found a
defense attorney’s performance deficient when he failed to
investigate similar evidence. See Miller v. Anderson, 255
F.3d 455 (7th Cir. 2001) (discussing counsel’s failure to in-
vestigate expert testimony regarding pubic hair). In Miller
we applied both prongs of the Strickland test and found
counsel to have given deficient performance that resulted in
prejudice. While this case may present a similar case in a
search for deficient performance, it does not compare for


1
    Specifically, the appeals court stated,
      The lengthy record reveals that at trial the victim identified
      Floyd as the perpetrator of this crime; Floyd’s co-defendant
      identified him and testified against him; a polygraph exami-
      ner testified that Floyed failed a polygraph examination; and
      a witness testified that she saw Floyd driving in downtown
      Bedford when he claims he was returning home from driving
      Deckard home. Moreover, in his brief, Floyd acknowledges
      that the same report he claims counsel failed to use at trial as
      exculpatory evidence also contained evidence that the State
      could have claimed was inculpatory had defense counsel
      attempted to admit the report.
Floyd v. State of Indiana, No. 47A04-9507-PC-267, slip op. at 5
(Ind. Ct. App. Sept. 30, 1999).
No. 03-1706                                                       5

prejudice. Here, the Indiana Court of Appeals started and
ended its analysis of this issue by finding there was no
prejudice; it did not rule that counsel’s failure to present
the serology report constituted deficient performance.
In Miller, the prosecution used the evidence at trial to
implicate the defendant; the evidence was critical to the
defendant’s conviction.2 Here, neither side presented the
serology lab reports at trial, and even if Floyd’s attorney
had relied on them, the results were, at best, inconclu-
sive—they did not exonerate the defendant.


    2. Victim’s Inconsistent Statements
  The second error that Floyd complains of is that his at-
torney did not introduce evidence of statements that the
victim made to her medical examiner. Floyd believes that
these statements were inconsistent with Quackenbush’s
testimony at trial when she said that she identified Floyd
by his voice during her abduction. The statements, recorded
in Dr. Gareth Morgan’s notes say, among other things, “She
was raped by the man from the accompanying car[;] he
didn’t speak but prior to and during the intercourse she was
told what to do by the first man with the gun.” The notes
also say, “[s]he could see the headlights of a car stopped
behind them and heard a muffled conversation.” (Br. for
Appellee at 17) (emphasis added to reflect Floyd’s argu-
ment). The appellate court found that Quackenbush’s
testimony at trial was thorough and extensive enough that


2
    We noted that,
      Wood’s testimony was the centerpiece of the state’s case, but
      it . . . contained some contradictions. . . . The state wanted
      corroboration and found it in the testimony of its expert wit-
      ness that a pubic hair found on the victim’s thigh almost cer-
      tainly was Miller’s. The prosecution harped on this evidence
      in closing argument.
Miller v. Anderson, 255 F.3d 455, 457 (7th Cir. 2001).
6                                               No. 03-1706

the doctor’s notes would have made little difference to the
jury. Additionally, the appellate court noted the testimony
of other witnesses at trial indicating Floyd was the per-
petrator. We believe that the appellate court was not
unreasonable in finding that the use of the doctor’s notes
would not have created a reasonable probability of a dif-
ferent outcome; there was no prejudice.


    3. Testimony of Floyd’s Mother
  Third, Floyd believes that it was error not to have his
mother testify in support of his alibi. During trial a separ-
ation of witness order was in effect. Floyd’s mother was
present in the courtroom; later Floyd’s attorney made a
motion to have her removed from the courtroom so that she
could testify, the prosecution objected and the court denied
the motion. Had she been able to testify, she would have
told the court that she had seen her son asleep in his bed at
the time of the crime. The appellate court found that having
Floyd’s mother sit in the courtroom using her as a show of
family support rather than as a witness, was a permissible
tactical decision and hence, was not deficient performance
regardless of the attorney’s later wish to call her as a
witness. See Strickland, 466 U.S. at 689 (noting that
attorneys have “wide latitude . . . in making tactical deci-
sions” and “the defendant must overcome the presumption
that, under the circumstances, the challenged action ‘might
be considered sound trial strategy.’ ” (quoting Michel v.
Louisiana, 350 U.S. 91, 101 (1955)). Floyd counters that his
attorney did not make a tactical decision because he had
originally listed Floyd’s mother as an alibi witness, so the
attorney could not later change his mind. We find that the
appellate court did not unreasonably apply Strickland in
this part of its analysis and the attorney’s actions were not
deficient. Additionally, when considered with the other
attorney’s errors that Floyd complains of, the appellate
court found that there was no prejudice.
No. 03-1706                                                7

  4. Sentencing
  Lastly, Floyd complains that his attorney did not cross-
examine two witnesses during sentencing. These wit-
nesses testified that Floyd had subjected them to a similar
crime involving abduction and rape. In response to this
testimony, Floyd’s attorney introduced into evidence a
newspaper account of the witnesses’ attack that described
the attacker to be unlike Floyd. The appellate court also
concluded that this too was a strategic decision on the
part of counsel. In coming to that conclusion, the court
considered the testimony of Floyd’s attorney where he
stated that he did not object to or cross-examine these
witnesses because he wanted to prevent “a second rape
trial” without “constitutional protections.” Floyd’s attorney
was concerned that Floyd would later be formally charged
with this second rape, and did not want Floyd making
statements at this sentencing proceeding that could be later
used against him. Applying the same standards as above,
we find that the appellate court did not make an unreason-
able application of Strickland or an unreasonable interpre-
tation of the facts.


  5. General Prejudice Analysis
  In addition to his arguments that the Indiana Appellate
Court made “unreasonable” applications of the law, Floyd
also argues that the court’s decision was “contrary to” ex-
isting law. In hearing Floyd’s appeal, the Indiana Court of
Appeals identified and applied the Strickland test. Floyd
objects to the fact that in discussing the prejudice prong of
the test, the court referenced a “reliable” standard that is
no longer part of the test. Specifically, at the beginning of
its opinion, the court discusses that when errors do not
make the result of the trial unreliable, they do not cause
8                                                     No. 03-1706

prejudice.3 While we agree with Floyd that Williams v.
Taylor, 529 U.S. 362 (2000) removed the discussion of
reliability from determining whether there was prejudice,
a fuller view of the appellate court’s discussion reveals that
while the term “reliability” was employed, the actual
analysis of Floyd’s counsel’s conduct properly considered
whether the counsel’s actions affected the outcome of the
trial. As noted above, the Indiana Appellate Court consid-
ered the potential effect of the lab results, the victim’s
statements to her doctor, Floyd’s mother’s testimony, and a
cross-examination of the witnesses at sentencing against
the weight of the other evidence heard by the jury.4 In
reaching its decision that there was no prejudice, the court
found that the inculpating evidence was overwhelming and
had Floyd’s counsel taken the steps that Floyd now de-
mands, the result would have been the same; this is the
very analysis that is required by Strickland and Williams.5
The Supreme Court has explained that a decision is
“contrary to” precedent when “the state court applies a rule
that contradicts the governing law.” Williams, 529 U.S. at
405. Floyd fails in this argument precisely because when it


3
  In discussing the application of the prejudice part of the test, at
one point the Indiana Appellate Court noted, “To establish the
second element, the defendant must show that counsel’s errors so
undermined the proper functioning of the adversarial process that
the trial cannot be said to have produced a just and reliable result.
Thus, a different outcome but for counsel’s errors will not
constitute prejudice if the ultimate result reached was fair and
reliable.” Floyd v. State, No. 47A04-9507-PC-267, slip op. at *23
(Ind. App. Ct. Sept. 30, 1999) (internal citations omitted).
4
    Br. for Appellant at app. 24, 26.
5
  Strickland v. Washington, 466 U.S. 668 (1984) (“With regard to
the required showing of prejudice, the proper standard requires
the defendant to show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceed-
ing would have been different.”); Williams v. Taylor, 529 U.S. 362
(2000) (same).
No. 03-1706                                                 9

applied the Strickland test, the Indiana Court of Appeals
did it in conformance with the proper Strickland standard.


B. Due Process/Rebuttal Witness
  At trial, the prosecution produced Cheryl Hardin to testify
that she had seen Floyd with Deckard on the night
in question to rebut Floyd’s alibi. Prior to trial the prose-
cution had failed to disclose this witness; we have held that
when the defendant must disclose a list of its witnesses
during discovery, the prosecution must do the same.
Mauricio v. Duckworth, 840 F.2d 454, 457 (7th Cir. 1988).
The rationale behind this rule is to have discovery pro-
cedures applied “evenhandedly” to both the defense and
prosecution. When faced with this problem, we apply a two-
part test: first, did the state knowingly fail to divulge the
identity of a potential alibi rebuttal witness, and second, if
so, was the constitutional violation harmless? Id. at 456-57.
  From the facts, it appears that the state did indeed know
of this potential witness and did not disclose her identity to
the defense prior to trial. The Indiana Supreme Court found
that Hardin’s testimony was cumulative, however, and did
not amount to harmful error. Floyd v. State, 503 N.E.2d
390, 394 (Ind. 1987). We agree with this finding. The
purpose of Hardin’s testimony was to place Floyd
with Deckard on the night in question, the prosecution had
already done so with the testimony of Deckard and
Quackenbush. Hardin’s testimony was merely cumulative.
  For the aforementioned reasons, we AFFIRM.
10                                             No. 03-1706

  WILLIAMS, Circuit Judge, concurring. While I agree
that the law compels this result, I note how unfortu-
nately stringent the habeas standards of review are, often
producing affirmance of even draconian results. Here for in-
stance, Floyd was sentenced to 110 years, and his co-con-
spirator received 30 years and has since been released from
prison. Accordingly, I reluctantly concur.


A true Copy:
      Teste:

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




                   USCA-02-C-0072—4-1-04
