Anderson, Steven v. Cowan, Roger D.

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3485
STEVEN ANDERSON,
Petitioner-Appellant,
v.
ROGER D. COWAN, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 3352--Ruben Castillo, Judge.
Argued June 7, 2000--Decided September 15, 2000
Before POSNER, COFFEY and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Mr. Anderson was tried
before a jury in an Illinois trial court and
found guilty of first-degree murder, armed
robbery, and aggravated kidnaping. He was
sentenced to a life term, a 30-year term, and a
15-year term, respectively./1 He then appealed
his conviction to the Appellate Court of
Illinois; that court upheld his conviction.
Thereafter, he sought leave to appeal to the
Supreme Court of Illinois, but his petition was
denied. Mr. Anderson next filed a petition for
writ of habeas corpus in the district court. The
district court denied his habeas petition but
granted a certificate of appealability on the
issue of whether Mr. Anderson’s Confrontation
Clause rights had been violated under Bruton v.
United States, 391 U.S. 123 (1968). The district
court refused to issue a certificate with respect
to Mr. Anderson’s remaining two issues: whether
he received ineffective assistance of counsel and
whether he is entitled to a Batson hearing. For
the reasons set forth in the following opinion,
we affirm the judgment of the district court.
I
BACKGROUND
A confidential informant told the police that a
man named Lorne Gray was involved in the unsolved
murder of Alan Cypin. Over a year earlier,
Cypin’s body had been found in an alley. The
police then questioned Gray, and he confessed to
the murder, but also implicated Mr. Anderson. The
police then located Mr. Anderson and requested
that he appear at the police station.
Upon Mr. Anderson’s arrival at the police
station, the police placed him under arrest,
informed him of his Miranda rights, and then
questioned him about his involvement in Cypin’s
murder. While the police were administering a
polygraph test, Mr. Anderson confessed his role
in the crime to Officer Garrity. Mr. Anderson
then repeated the same confession to Officers
Garrity, Harrington, and Puttin. Later in the
evening, he repeated his confession to an
assistant state’s attorney, and, finally, he
confessed a fourth time during a court-reported
statement.
The State of Illinois ("the State") prosecuted
Mr. Anderson for the murder, robbery, and
kidnaping of Cypin. Gray was tried simultaneously
on the same charges before the same court but by
a separate jury. At the trial, Officer Garrity
testified about Mr. Anderson’s confession to him.
Then, Officer Harrington testified that Mr.
Anderson had repeated the same story when he had
confessed the second time. Only these first two
confessions of Mr. Anderson were admitted into
evidence. Officer Harrington also testified about
Gray’s confession, which implicated Mr. Anderson.
II
DISCUSSION
A. Standard of Review
The Antiterrorism and Effective Death Penalty
Act ("AEDPA"), 28 U.S.C. sec. 2254,/2 provides,
in pertinent part, that habeas relief may be
granted only if the adjudication of the claim by
the state court "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." 28 U.S.C. sec. 2254 (d)(1). The Supreme
Court, in Williams v. Taylor, 120 S. Ct. 1495
(2000), clarified the meaning of this standard.
In Williams, the Court explained that a state
court decision is "contrary to" Supreme Court
precedent "if the state court arrives at a
conclusion opposite to that reached by this Court
on a question of law" or "if the state court
confronts facts that are materially
indistinguishable from a relevant Supreme Court
precedent and arrives at a result opposite to
ours." Id. at 1519. The Court then stated that "a
run-of-the-mill state-court decision applying the
correct legal rule from our cases to the facts of
a prisoner’s case would not fit comfortably
within sec. 2254(d)(1)’s ’contrary to’ clause."
Id. at 1520. The Court therefore focused on the
second phrase of the same subsection:
"unreasonable application" of clearly established
Supreme Court precedent. It interpreted
"unreasonable application of" as either: "if the
state court identifies the correct governing
legal rule from this Court’s cases but
unreasonably applies it to the facts of the
particular state prisoner’s case" or "if the
state court either unreasonably extends a legal
principle from our precedent to a new context
where it should not apply or unreasonably refuses
to extend that principle to a new context where
it should apply." Id. at 1520.
We review the district court’s decision to deny
habeas de novo. See Washington v. Smith, 219 F.3d
620, 627 (7th Cir. 2000); Lieberman v.
Washington, 128 F.3d 1085, 1091 (7th Cir. 1997).
When the case falls under sec. 2254(d)(1)’s
"contrary to" clause, we review the state court
decision de novo to determine the legal question
of what is clearly established law as determined
by the Supreme Court and whether the state court
decision is "contrary to" that precedent. See
Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.
1999). When the case fits under the "unreasonable
application of" clause of sec. 2254(d)(1),
however, we defer to a reasonable state court
decision. See id. ("Whether the state court’s
holding involved an ’unreasonable application’ of
clearly established federal law, as determined by
the Supreme Court, is a mixed question of law and
fact that we traditionally also review de novo
but with a grant of deference to any reasonable
state court decision.").
B. Confrontation Clause Violation
Mr. Anderson argues that his Sixth Amendment
right to confront the witness against him was
violated in the trial court. The trial court
admitted into evidence Gray’s confession that
implicated Mr. Anderson; however, Gray did not
take the stand, and Mr. Anderson was unable to
cross-examine him. The Appellate Court of
Illinois held that the admission of Gray’s
confession violated Mr. Anderson’s rights under
the Confrontation Clause. It further held,
however, that overwhelming and incontrovertible
evidence of Mr. Anderson’s guilt existed. The
court found that the outcome of Mr. Anderson’s
trial was unaffected by the Confrontation Clause
violation and that the error therefore was
harmless beyond a reasonable doubt. Before us, as
he did in the district court, Mr. Anderson argues
that the admission of Gray’s confession
constituted a violation of the Sixth Amendment as
set forth by the Supreme Court in Bruton v.
United States, 391 U.S. 123 (1968).
In Bruton, two defendants, Evans and Bruton,
were tried jointly. At their trial, the trial
court admitted the pretrial confession of Evans,
which implicated Bruton. The Supreme Court held
that Evans’ confession was not admissible against
Bruton unless Evans waived his Fifth Amendment
right not to testify so that Bruton would be
permitted to cross-examine him. See id. at 127-
28. By admitting Evans’ confession against
Bruton, the Court determined, Bruton’s Sixth
Amendment rights under the Confrontation Clause
were violated. See id. Moreover, the Court
explained, a limiting instruction was not
sufficient to cure the error. See id. at 135-37.
The Supreme Court has explained that a violation
of the Bruton rule may be harmless error if there
is overwhelming evidence of the defendant’s
guilt. See Harrington v. California, 395 U.S.
250, 253 (1969) (explaining that the case against
the defendant "was so overwhelming that we
conclude this violation of Bruton was harmless
beyond a reasonable doubt"). "In some cases the
properly admitted evidence of guilt is so
overwhelming, and the prejudicial effect of the
codefendant’s admission is so insignificant by
comparison, that it is clear beyond a reasonable
doubt that the improper use of the admission was
harmless error." Schneble v. Florida, 405 U.S.
427, 430 (1972); see also United States v.
Martin, 897 F.2d 1368, 1372 (6th Cir. 1990) ("A
federal constitutional error can be held harmless
only if the Court is able ’to declare a belief
that it was harmless beyond a reasonable doubt.’"
(quoting Chapman v. California, 386 U.S. 18, 24
(1967))). Moreover, the Court explained, "unless
there is a reasonable possibility that the
improperly admitted evidence contributed to the
conviction, reversal is not required." Schneble,
405 U.S. at 432.
In Delaware v. Van Arsdall, 475 U.S. 673 (1986),
the Supreme Court set forth the factors for
determining whether a violation of the
Confrontation Clause was harmless error. See id.
at 684. The Court explained as follows:
Whether such an error is harmless in a particular
case depends upon a host of factors, all readily
accessible to reviewing courts. These factors
include the importance of the witness’ testimony
in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of
evidence corroborating or contradicting the
testimony of the witness on material points, the
extent of cross-examination otherwise permitted,
and, of course, the overall strength of the
prosecution’s case.
Id.; see also United States v. Eskridge, 164 F.3d
1042, 1044 (7th Cir. 1998) (citing Van Arsdall).
In Cruz v. New York, 481 U.S. 186, 189-90 (1987),
the Court gave further guidance on Bruton-type
errors and, significantly, gave additional
instruction on the methodology for determining
whether such an error may be considered harmless.
Specifically, the Court held that, when a
nontestifying co-defendant’s confession is not
admissible directly against the defendant, the
Confrontation Clause bars its admission at their
joint trial even if the jury is instructed to not
consider it against the defendant and even if the
defendant’s own confession is admitted against
him. See id. at 193. The Court further explained
that "the defendant’s confession . . . may be
considered on appeal in assessing whether any
Confrontation Clause violation was harmless." Id.
at 193-94 (citations omitted) (emphasis added).
Cruz holds that the interlocking nature of the
confessions does not prevent a Confrontation
Clause violation; however, the interlocking
nature of the confessions may render the
violation harmless. See id. at 191.
The district court agreed with the Appellate
Court of Illinois that the admission of Gray’s
confession violated Mr. Anderson’s rights under
the Confrontation Clause. However, the district
court relied upon Cruz to hold that the Bruton
error was harmless. Even if Gray’s confession was
excluded from the evidence, reasoned the district
court, Mr. Anderson’s confession was sufficient
to sustain his conviction because a reasonable
jury would have found Mr. Anderson guilty. The
district court concluded that the state appellate
court’s decision--that this error was harmless
beyond a reasonable doubt--was not contrary to,
or an unreasonable application of, clearly
established Supreme Court precedent.
As the district court cogently noted, in
considering whether the admission of Gray’s
confession against Mr. Anderson was prejudicial,
we may take into consideration Mr. Anderson’s two
confessions. During those confessions, he
provided detailed accounts of the crimes. Many of
the specific details provided in Mr. Anderson’s
confessions were also present in Gray’s
confession. Following the Supreme Court in Cruz,
the corroboration between the two confessions
suggests that the admission of Gray’s confession
may be harmless error.
The state court concluded that the admission of
Gray’s confession in violation of Bruton was
harmless error, and it reached this conclusion by
recognizing that there was "overwhelming and
incontrovertible evidence of defendant Anderson’s
guilt." R.29, Ex.A at 12. The state court pointed
out that witness testimony and physical evidence
linked Mr. Anderson to the crime. Moreover, Mr.
Anderson twice confessed to the crime. In light
of all the evidence against Mr. Anderson, we
cannot conclude that the state court’s
determination that the admission of Gray’s
confession against Mr. Anderson was harmless
error is "contrary to or an unreasonable
application of" the clearly established Supreme
Court precedent of Bruton and its progeny./3
C. Ineffective Assistance of Counsel
Mr. Anderson also submits that he was denied
effective assistance of counsel in the Appellate
Court of Illinois because counsel failed to
pursue the trial court’s denial of Mr. Anderson’s
motion to suppress his confessions. The district
court determined that Mr. Anderson procedurally
defaulted this claim.
1.
The district court did not grant a certificate
of appealability on this claim. When a district
court does not certify an issue for appeal, the
petitioner must make "a substantial showing of
the denial of a constitutional right." 28 U.S.C.
sec. 2253(c)(2). As the Supreme Court recently
held, for a petitioner to make a substantial
showing of the denial of a constitutional right,
the petitioner must show "that reasonable jurists
could debate whether . . . the petition should
have been resolved in a different manner or that
the issues presented were adequate to deserve
encouragement to proceed further." Slack v.
McDaniel, 120 S. Ct. 1595, 1603-04 (2000)
(citations and quotation marks omitted). "The
petitioner must demonstrate that reasonable
jurists would find the district court’s
assessment of the constitutional claims debatable
or wrong." Id. at 1604./4 Mr. Anderson therefore
must make a substantial showing of the denial of
his Sixth Amendment right to effective assistance
of counsel before we may consider the merits of
this claim. See Schaff, 190 F.3d at 528.
2.
If a petitioner failed to raise his claim to the
state courts, and therefore failed to give the
state courts "the first opportunity to review
this claim and provide any necessary relief," he
has procedurally defaulted the claim. See
O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999);
Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir.
1999). If a petitioner procedurally defaulted on
his claim in the state court, a federal court may
not grant habeas relief unless the petitioner
"can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to
consider the claims will result in a fundamental
miscarriage of justice." Coleman v. Thompson, 501
U.S. 722, 750 (1991); see also Thomas v.
McCaughtry, 201 F.3d 995, 999 (7th Cir. 2000);
Rodriguez, 193 F.3d at 917; Crivens v. Roth, 172
F.3d 991, 995 (7th Cir. 1999).
The district court pointed out that Mr. Anderson
did not raise his ineffective assistance of
counsel claim in his petition for appeal to the
Supreme Court of Illinois. This failure, the
district court held, denied that court the
opportunity to decide the claim. Moreover, the
district court noted that state post-conviction
relief was no longer available for Mr. Anderson.
Therefore, the district court concluded, Mr.
Anderson procedurally defaulted on his
ineffective assistance of counsel claim. To allow
him to proceed in federal court on his habeas
claim despite the procedural default, Mr.
Anderson must show, the district court stated,
cause for the default and actual prejudice due to
the default, or he must show that a failure to
consider the claim would result in a fundamental
miscarriage of justice. Because Mr. Anderson
failed to argue cause and prejudice, the district
court held that it could not consider the merits
of Mr. Anderson’s claim./5
Mr. Anderson asserts that he has a
constitutional right to effective assistance of
counsel and that, in his appeal to the Appellate
Court of Illinois, his counsel was ineffective
under Strickland v. Washington, 466 U.S. 668
(1984), because counsel did not raise the denial
of Mr. Anderson’s motion to suppress his
confessions./6 Mr. Anderson also claims that the
same counsel was ineffective before the Supreme
Court of Illinois when he failed to raise his own
failure to bring the suppression issue before the
Appellate Court of Illinois. This second lapse by
counsel, he claims, constituted "cause" for his
failure to raise his ineffective assistance of
counsel claim before the state courts.
Mr. Anderson has procedurally defaulted his
ineffective assistance of counsel claim. To
preserve this claim for habeas review, Mr.
Anderson needed to present it to the Supreme
Court of Illinois in his petition for
discretionary review. See Boerckel, 526 U.S. at
848. In failing to present this claim to the
Illinois courts, Mr. Anderson deprived the state
courts of the first opportunity to review it. See
id. at 844. This failure resulted in a procedural
default of his claim. See id. at 848.
Mr. Anderson argues that, because he had
ineffective assistance of counsel in his petition
to the Supreme Court of Illinois, there is
"cause" for his failure to present his
ineffective assistance of counsel claim in his
petition for discretionary review to the Supreme
Court of Illinois. The Supreme Court of the
United States has held that "[a]ttorney error
that constitutes ineffective assistance of
counsel is cause." Coleman, 501 U.S. at 753-54.
However, "a criminal defendant does not have a
constitutional right to counsel to pursue
discretionary state appeals," Wainwright v.
Torna, 455 U.S. 586, 587 (1982), and "the right
to appointed counsel extends to the first appeal
of right, and no further." Pennsylvania v.
Finley, 481 U.S. 551, 555 (1987). In proceedings
in which a petitioner does not have a
constitutional right to counsel, "a petitioner
cannot claim constitutionally ineffective
assistance of counsel in such proceedings." See
Coleman, 501 U.S. at 752-53. Mr. Anderson
therefore had no constitutional right to counsel
for his discretionary petition to the Supreme
Court of Illinois, and he could not have received
ineffective assistance of counsel for the failure
of counsel to raise his ineffective assistance of
counsel claim in his petition to the Supreme
Court of Illinois. See id. Mr. Anderson thus has
procedurally defaulted his ineffective assistance
of counsel claim, and he has not made a
substantial showing of the denial of a
constitutional right.
D. Batson Claim
To make out a prima facie case of purposeful
discrimination under Batson v. Kentucky, 476 U.S.
79 (1986), Mr. Anderson needs to show that the
State struck a member of a constitutionally
protected class during jury selection and that
all the relevant circumstances raise an inference
of intentional discrimination by the State. See
United States v. Brisk, 171 F.3d 514, 523 (7th
Cir.), cert. denied, 120 S. Ct. 150 (1999).
Relevant circumstances include the pattern of
strikes and the prosecutor’s questions and
statements. See Batson, 476 U.S. at 96-97; cf.
United States v. Cooke, 110 F.3d 1288, 1301 (7th
Cir. 1997) (stating that the mere fact that the
prosecutor used his peremptory challenges to
exclude two African-Americans, without more, is
insufficient to raise an inference of
discrimination); Brisk, 171 F.3d at 523 (same).
The Appellate Court of Illinois held that Mr.
Anderson failed to make out a prima facie case of
race discrimination under Batson. The state court
said that it was unable to discern the race of
the jury or of the other excluded venire members
because Mr. Anderson failed to preserve the
record of the racial composition of the venire
pool. The prosecutor’s use of two of its
peremptory challenges to exclude African-American
women from the jury, according to the court,
failed to establish an inference of
discrimination under Batson. Thus, the state
court held that Mr. Anderson failed to establish
his prima facie case for a Batson hearing.
The district court also held that Mr. Anderson
was not entitled to a Batson hearing because he
could not establish a prima facie case of
purposeful discrimination by the prosecutor in
the use of his peremptory challenges. Mr.
Anderson could not establish a prima facie case,
explained the district court, because to do so he
needed to do more than simply point to the fact
that the State excluded an African-American
venire person when using a peremptory challenge.
Instead, the district court stated, the defendant
must have shown that, when considering all the
relevant circumstances, such as a pattern of
strikes or the questions of the prosecutor, there
was an inference of intentional discrimination.
The district court therefore refused to hold that
Mr. Anderson was entitled to a Batson hearing.
Mr. Anderson asserts that his request for a
Batson hearing was incorrectly denied. He argues
that he made out a prima facie case of purposeful
discrimination by the State based solely on the
prosecutor’s exercise of peremptory challenges at
his trial. He states that he needs to show only
that he is a member of a cognizable racial group
and that the prosecutor removed venire members of
his race; the race of the jury or the other
excluded venire members, he claims, does not
indicate whether the prosecutor used the two
peremptory challenges in a discriminatory
fashion. "To establish a prima facie case of
purposeful discrimination under Batson," however,
Mr. Anderson "must do more than merely point to
the fact that the government excluded an African-
American venireperson by using a peremptory
challenge." Cooke, 110 F.3d at 1301. Instead, he
also must show that the facts and "any other
relevant circumstances" raise an inference of
discriminatory practice by the prosecutor.
Batson, 476 U.S. at 96. According to the Supreme
Court in Batson:
In deciding whether the defendant has made the
requisite showing [for a prima facie case], the
trial court should consider all relevant
circumstances. For example, a "pattern" of
strikes against black jurors included in the
particular venire might give rise to an inference
of discrimination. Similarly, the prosecutor’s
questions and statements during voir dire
examination and in exercising his challenges may
support or refute an inference of discriminatory
purpose. These examples are merely illustrative.
Id. at 96-97. Mr. Anderson does not provide any
other "relevant circumstances" to inform us
whether the prosecutor used the peremptory
challenges in a discriminatory manner, and the
Appellate Court of Illinois’ denial of a Batson
hearing is therefore not contrary to or an
unreasonable application of clearly established
Supreme Court precedent. Mr. Anderson has not
made a substantial showing of the denial of a
constitutional right.
Conclusion
For the foregoing reasons, the judgment of the
district court is affirmed.
AFFIRMED
/1 The armed robbery term was to run consecutively
with the murder sentence and the aggravated
kidnaping term was to run concurrently with the
armed robbery sentence.
/2 AEDPA applies to Mr. Anderson’s case because he
filed his federal habeas petition after the
effective date of AEDPA, April 25, 1996. See
Lindh v. Murphy, 521 U.S. 320, 336 (1997).
/3 Before AEDPA, federal courts assessed, on habeas
review, whether a constitutional error was
harmless by applying the rule articulated by the
Supreme Court in Brecht v. Abrahamson, 507 U.S.
619 (1993). Under that formula, the federal
habeas courts were to inquire, in the case of
trial error, whether that error "’had substantial
and injurious effect or influence in determining
the jury’s verdict.’" Id. at 637 (quoting
Kotteakos v. United States, 328 U.S. 750, 776
(1946)). This standard was refined by the Court
in O’Neal v. McAninch, 513 U.S. 432 (1995), which
held that "where the record is so evenly balanced
that a conscientious judge is in grave doubt as
to the harmlessness of the error," id. at 437,
the petitioner must prevail, see id. at 436.
It is unclear whether the holdings in Brecht and
O’Neal have survived the passage of AEDPA. In
Nevers v. Killigan, 169 F.3d 352 (6th Cir. 1999),
our colleagues in the Sixth Circuit held that
"the test set out by the Supreme Court in
Kotteakos and explicitly reiterated in Brecht
quite precisely captures Congress’s intent as
expressed in AEDPA and, therefore, continues to
be applicable." Id. at 371. The court reasoned
that, under Brecht, "it is the habeas
petitioner’s burden to demonstrate that the trial
error resulted in ’actual prejudice’ . . . . If
the petitioner is able to make that showing, he
will surely have demonstrated that the state
court’s finding that the error was harmless
beyond a reasonable doubt--the Chapman standard--
was outside the realm of plausible credible
outcomes, and therefore resulted from an
unreasonable application of Chapman." Id. at 370
(quoting Brecht, 507 U.S. at 637). Nevers has
been followed in the Sixth Circuit, although with
a marked lack of enthusiasm. See Maurino v.
Johnson, 210 F.3d 638, 644 (6th Cir. 2000)
(following Nevers "because there has been no
intervening Supreme Court decision invalidating
that panel’s decision"), abrogation on other
grounds recognized by Harris v. Stovall, 212 F.3d
940 (6th Cir. 2000). The Eighth Circuit, by
contrast, has indicated, in dicta, skepticism
about the continued vitality of Brecht. See
Whitmore v. Kenna, 213 F.3d 431, 433 (8th Cir.
2000). We need not take sides on this
disagreement. Even if we assume that Brecht
articulates a more generous standard than AEDPA,
we must conclude that, under that more generous
standard, the error was harmless. See Thomas v.
Gibson, 218 F.3d 1213, 1226 n.12 (10th Cir.
2000).
/4 See also Porter v. Gramley, 112 F.3d 1308, 1312
(7th Cir. 1997) (stating that a petitioner must
demonstrate that an issue is debatable among
jurists or that "the questions ’deserve
encouragement to proceed further’" (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 n.4
(1983))).
/5 The district court further explained that, even
if it reached the merits, Mr. Anderson’s
ineffective assistance of counsel claim would
fail. Under Strickland v. Washington, 466 U.S.
668 (1984), Mr. Anderson is required to show that
his counsel’s performance was so deficient that
it fell below an objective standard of
reasonableness and that he was prejudiced by this
deficient performance and that there was a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different.
According to the district court, Mr. Anderson
claims that his court-reported statement violated
Miranda and, thus, that his counsel’s failure to
object to that confession constituted
constitutionally deficient performance. As the
district court pointed out, this statement by Mr.
Anderson was not even introduced into evidence at
trial. His first two confessions, for which there
is uncontested evidence that prior to his
statements Mr. Anderson was read his Miranda
rights, were introduced at trial. The potential
Miranda violation for his fourth (as well as his
third) confession does not nullify the validity
of his first two confessions. Thus, the district
court held that Mr. Anderson’s counsel was not
acting deficiently in failing to object to the
admission of his confessions at trial.
/6 Mr. Anderson filed a motion to suppress his
confessions. The State admitted that his court-
reported statement violated Miranda and agreed
not to use it at trial. He claims that he
produced enough evidence of Miranda violations
for his other confessions in his motion to
suppress that those confessions should not have
been admitted into evidence.
The failure of his counsel to pursue the denial
of his motion to suppress his confessions,
according to Mr. Anderson, is a violation of his
Sixth Amendment right to effective assistance of
counsel. Mr. Anderson contends that there is no
strategic reason for appellate counsel’s failure
to raise the denial of the motion to suppress his
statements in the state court. Failure of counsel
to raise this claim, Mr. Anderson argues,
prejudiced him because, without these
confessions, no evidence existed against him
(except for the constitutionally questionable
confession of his co-defendant).