Renardo Carter v. Timothy Douma

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3312
RENARDO CARTER,
Petitioner-Appellant,
v.
TIMOTHY DOUMA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 11-cv-320-wmc — William M. Conley, Chief Judge.
____________________
ARGUED NOVEMBER 3, 2014 — DECIDED AUGUST 6, 2015
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Petitioner Renardo Carter chal-
lenges his Wisconsin conviction for possessing between five
and fifteen grams of cocaine with intent to deliver. At
Carter’s trial, a police officer testified about his work with an
informant who had said Carter was involved in distributing
drugs. The officer’s testimony relayed the substance of the
identification as well as the fact that he requested and heard
2 No. 13-3312
the informant call Carter to order cocaine. Carter’s lawyer
did not object to the testimony about the informant’s out-of-
court statements and actions. During closing argument, the
State referred to the informant’s statements and actions to
support its argument that Carter possessed cocaine with in-
tent to deliver, again without objection from Carter’s lawyer.
Carter sought post-conviction relief in state court. He ar-
gued that the officer’s testimony about his out-of-court con-
versation with the informant violated his Confrontation
Clause right to cross-examine an adverse witness and that
his trial counsel was ineffective under Strickland v. Washing-
ton, 466 U.S. 668 (1984), for failing to object to that testimony.
The Wisconsin Court of Appeals rejected both claims, find-
ing no plain error in admission of the evidence and conclud-
ing that Carter’s lawyer was not ineffective for failing to ob-
ject. The state court explained that admitting the testimony
posed no Confrontation Clause problem because it was of-
fered not to show the truth of what the informant said but to
explain why the police investigated Carter as they did.
Carter filed a federal habeas corpus petition under 28
U.S.C. § 2254 asserting the same Confrontation Clause and
ineffective assistance theories. The district court denied the
petition, and we affirm that denial. While there is a good ar-
gument that Carter’s trial lawyer should have objected to
some of the officer’s testimony about the informant and its
use during closing argument, we need not determine wheth-
er his lawyer rendered constitutionally deficient assistance
because Carter has not shown that the failure to object prej-
udiced him. The evidence shows that Carter possessed at
least twelve bags of the sort commonly used to redistribute
controlled substances and that each of those bags would
No. 13-3312 3
have held at least 1.75 grams of cocaine. Though Carter’s
dramatic efforts to flee the police and then to dispose of the
bags while standing in a river in view of officers prevented
the State from proving more definitively what those bags
contained, the state court’s finding of no prejudice was not
unreasonable.
I. Factual and Procedural Background
A. Events Leading to Arrest
On November 18, 2004, police narcotics investigator Mi-
chael Webster went to a motel parking lot to meet a confi-
dential informant with a lead on a person distributing con-
trolled substances. Officer Webster had hoped to get enough
information to justify a stop of the suspected man’s vehicle
or otherwise to secure his arrest. After hearing about this
suspicious man, Officer Webster asked the informant to
point out the vehicle the man was using. During their con-
versation, Officer Webster saw that man leave a motel room
and walk toward the vehicle. The man was Carter.
At that point, Officer Webster asked the informant to call
Carter and say that he wanted to buy cocaine “teeners,” one-
sixteenth ounce quantities of cocaine. The informant com-
plied, and Officer Webster made sure he could hear what the
informant was saying and could observe Carter’s actions in
response to the informant’s requests. He saw Carter pick up
his phone when the informant called, and when the inform-
ant hung up, so did Carter. Shortly after the conversation
ended, Carter drove away.
Officer Webster then enlisted an Officer Starks to follow
and stop Carter. Carter refused to stop. This prompted a car
chase—involving Officer Starks and later Officer Webster—
4 No. 13-3312
that ended only when Carter stopped his car and ran into
the Wisconsin River near a dam. Officers Webster and Starks
pursued Carter on foot. They saw from a distance that Carter
was holding a large plastic bag that they thought contained a
mixture of powder and crack cocaine. Officer Webster esti-
mated that the bag was about the size of a 14-inch softball
and could have contained in excess of two ounces of the
powdery substance.
Officers Webster and Starks caught up with Carter in the
river and arrested him there. Before they reached him, other
officers on top of a nearby dam saw Carter pull small pack-
ets of a white, powdery substance out of his pockets, tear the
packets open with his teeth, and dump the bags and their
contents into the water. When the officers reached Carter, the
bag they had seen previously was now empty, and Carter
had a white, powdery substance around his mouth. At one
point, Carter indicated he had ingested all of the substance,
but he later said he had not swallowed any of it. Officer
Webster also observed a fair amount of white residue float-
ing on the water. Officer Starks testified that his narcotics-
detection dog indicated for the presence of an odor of an il-
legal substance in the water near Carter.
Beyond seeing traces of the powder, Officer Webster also
recovered from the river twelve “baggie corners,” a type of
bag smaller than the larger bag they previously saw Carter
holding. In the officer’s experience, people packaging con-
trolled substances often make little bags like these by placing
the substance in the corner of a sandwich bag, tying it off,
and cutting away the excess bag material. Officer Webster
testified that all of these smaller baggies would have fit easi-
ly within the larger bag he had seen earlier.
No. 13-3312 5
After Carter disposed of the substance in the river, the
police were unable to recover much of it for testing. They
were not able to test the baggies or powdery residue in the
river, but they did test one rock found in the river and other
rocks found in Carter’s car. Both samples contained cocaine.
The total weight of recovered cocaine was just 0.2 grams.
B. Trial
The State charged Carter with possessing between fifteen
and forty grams of cocaine with intent to deliver. Carter’s
actions in the river ensured that the State had little physical
evidence at trial, so the State relied primarily on the testimo-
ny of Officers Starks and Webster. Then other officers testi-
fied about the arrest, including seeing Carter in possession
of bags containing a white, powdery substance and trying to
dispose of the bags in the river. Officer Webster estimated
that Carter had possessed at least 21 grams of cocaine before
he disposed of it in the river. Officer Webster also testified
that carrying that many baggie corners is strong evidence of
intent to distribute the cocaine to others.
The State had planned to call the informant at trial but
had waited until right before trial to disclose the informant’s
identity. This left Carter little time to investigate the inform-
ant’s background. At Carter’s request, the trial court barred
the State from calling the informant as a witness. The trial
court said it would permit the State to ask witnesses about
their interactions with the informant so long as their testi-
mony complied with hearsay rules.
Officer Webster testified about the informant’s role in the
investigation. He explained the circumstances of the meeting
and said the reason they met was so that the informant could
6 No. 13-3312
“direct [him] to an individual that was involved in distrib-
uting controlled substances.” It later came out that the per-
son the informant referred to was Carter. Officer Webster al-
so described what the informant said on the call with Carter
and made clear that he heard the informant order “teeners”
of cocaine from Carter. At no point did Carter’s lawyer object
to Officer Webster’s discussion of the informant.
Though the State had said it would not use any of the in-
formant’s statements for their truth, the State relied on those
statements in closing argument:
Why do I feel that possession with intent has
been shown here? It has been shown because
you heard the testimony by Investigator Web-
ster of a confidential informant, someone that
the officer uses in drug investigations as part of
a tactic that they use. I mean they have people
out there who are aware of drug activity going
on. They don’t want to necessarily come here
and divulge their name or get involved, be-
cause they might be used in continuing inves-
tigation, more than one person.
But with that CI, he was directed to a place
where that CI was. The CI came in the vehicle
with him, pointed out Mr. Carter; that they
went over to Econo Lodge. And as he is point-
ing him out, the officer said, okay, if what you
are saying is true here, order some up for me.
So the CI gets on the line, makes the phone call.
Mr. Carter is out there answering the phone all
observed by the officer. He hears him order
four teeners, which he has testified is 1/16
No. 13-3312 7
ounce of cocaine. The CI hangs up, the defend-
ant hangs up. He then keeps surveillance the
officer does on the defendant until he becomes
mobile after the deal had been set up.
Later the State asked the jury to look at the facts and find
that possession with intent to deliver had been shown be-
cause:
You had the officer indicating that the CI said,
get me at least four teeners, 16th ounce. You
have 12 packages, not that we know that this is
all he had, but we have 12 packages that we
were able to find. And the officer said, those
could have been packages teeners, eight balls,
they could have been higher amounts of co-
caine, but I know he ordered teeners. CI or-
dered teeners, I heard him.
The jury found Carter not guilty of possessing between fif-
teen and forty grams of cocaine with intent to deliver but
convicted him of the lesser offense of possessing between
five and fifteen grams of cocaine with intent to deliver.1
C. Post-Conviction Proceedings
Carter sought post-conviction relief in state court. He ar-
gued that Webster’s testimony about his conversation with
the informant denied him a fair trial. Recognizing that he
did not object at trial, he argued the testimony violated his
1 Carter was also charged with three other offenses. He was convict-
ed of two (eluding an officer and resisting or obstructing an officer) and
acquitted of the third (recklessly endangering safety). Those charges are
not at issue in this appeal.
8 No. 13-3312
right of confrontation because it was offered for its truth and
its admission amounted to plain error. Alternatively, Carter
argued that his lawyer’s failure to object to the testimony
denied him effective assistance of counsel.
To determine whether Carter’s trial counsel was ineffec-
tive in failing to object, the state trial court held a hearing
pursuant to State v. Machner, 285 N.W.2d 905 (Wis. App.
1979). Carter’s trial counsel testified that he did not think Of-
ficer Webster’s testimony that the informant had directed
him to a person involved in distributing controlled sub-
stances was offered for its truth. He thought this statement
served to explain why the officers were interested in investi-
gating Carter. Similarly, the testimony regarding what the
informant said on the call to Carter was offered not to prove
it was true but to show the effect those statements had on the
other party to the drug transaction—Carter—as viewed by
Officer Webster. The trial court denied relief, agreeing that
the testimony about the informant was not offered for its
truth.
Carter appealed to the Wisconsin Court of Appeals. Turn-
ing first to whether Carter’s counsel was ineffective, the
court concluded that “the officer’s testimony about what he
actually observed and overheard while with the informant
was not offered to establish that Carter was selling drugs
but, rather, provided background information for the jury to
understand why the police tried to stop Carter’s vehicle and
chased him when he sped away.” On this view, admitting
the testimony did not violate the Confrontation Clause and
the failure to object was not deficient performance by coun-
sel. The court also found that any claimed deficiency would
not have resulted in prejudice, finding “no reasonable prob-
No. 13-3312 9
ability that absent this testimony, the result would have been
different.” The state appellate court also concluded that ad-
mitting the testimony had been neither a plain error nor a
reason for a new trial in the interest of justice. In fact, the
court was “not convinced that admission of the challenged
testimony constituted error, much less plain error.” The Wis-
consin Supreme Court denied further review.
Carter then filed a federal habeas corpus petition under
28 U.S.C. § 2254 challenging the validity of his state court
conviction. The district court denied the petition, concluding
that the state court had not unreasonably applied Strickland
in finding that counsel was not deficient and that Carter was
not prejudiced by any possible deficiency. The district de-
clined to issue a certificate of appealability.
Carter appealed. We granted his request for a certificate
of appealability as to: (1) whether Officer Webster’s testimo-
ny concerning the informant violated the Confrontation
Clause; and (2) whether trial counsel was ineffective for fail-
ing to object to that testimony. Carter raises both of these
grounds on appeal.
II. Habeas Corpus Review Under 28 U.S.C. § 2254
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), Carter must satisfy two statutory re-
quirements to prevail on his federal habeas petition. First, he
must establish that “he is in custody in violation of the Con-
stitution or laws or treaties of the United States.” 28 U.S.C. §
2254(a). Second, since the state appellate court ruled on the
merits of his claims, he must also go further and show that
his detention is the result of a state court decision that was
(1) “contrary to, or involved an unreasonable application of,
10 No. 13-3312
clearly established Federal law, as determined by the Su-
preme Court of the United States;” or (2) “based on an un-
reasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
To prevail in federal court, Carter must show that the
state appellate court’s ruling on either claim was “objectively
unreasonable, not merely wrong; even clear error will not
suffice.” Campbell v. Smith, 770 F.3d 540, 546 (7th Cir. 2014),
quoting White v. Woodall, 572 U.S.—, 134 S. Ct. 1697, 1702
(2014) (internal quotation marks omitted). That is, the ruling
must have been “so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Har-
rington v. Richter, 562 U.S. 86, 103 (2011). The district court
reviewed these claims under that standard and concluded
that the state court’s rejection of Carter’s claims was not ob-
jectively unreasonable. We review that conclusion de novo.
Jones v. Basinger, 635 F.3d 1030, 1040 (7th Cir. 2011).
A. Confrontation Clause
Carter challenges directly the State’s use of the inform-
ant’s statements on Confrontation Clause grounds. He ar-
gues that the state court unreasonably applied Crawford v.
Washington, 541 U.S. 36 (2004). The State argues that Carter’s
procedural default, in the form of the failing to object at trial,
provides an independent and adequate state law ground for
denying relief on this claim. We agree with the State.
If a state court denies relief “by relying on a state law
ground that is both independent of the federal question and
adequate to support the judgment, federal habeas review of
the claim is foreclosed.” Kaczmarek v. Rednour, 627 F.3d 586,
No. 13-3312 11
591 (7th Cir. 2010), citing Coleman v. Thompson, 501 U.S. 722,
729 (1991). A procedural failure to raise the federal claim as
required by state procedural rules, often called a procedural
default, is a common example of such an independent and
adequate state ground. Id. at 591–92.
When the state presents this as an affirmative defense in
federal court and the defense is found to apply to a petition-
er’s claim, the federal court cannot entertain the claim unless
the petitioner persuades the federal habeas court to excuse
the default. Petitioner can do so by establishing cause for
failing to follow the state procedural rules and a resulting
prejudice from his failure to do so. See id. at 591; Wrinkles v.
Buss, 537 F.3d 804, 812 (7th Cir. 2008), citing Wainwright v.
Sykes, 433 U.S. 72, 87, 90 (1977). A procedural default may
also be excused if a failure to consider the claim would result
in a “fundamental miscarriage[] of justice” because “a consti-
tutional violation has probably resulted in the conviction of
one who is actually innocent.” Wrinkles, 537 F.3d at 812 n.3
(alteration in original), quoting Murray v. Carrier, 477 U.S.
478, 496 (1986).
The state court declined to give full review to Carter’s
Confrontation Clause claim because he failed to comply with
Wisconsin’s contemporaneous objection requirement at trial.
See Kaczmarek, 627 F.3d at 592 (“A state law ground is inde-
pendent when the court actually relied on the procedural bar
as an independent basis for its disposition of the case.”). Un-
der Wisconsin law, a defendant waives an objection—
whether based on state law or an alleged violation of a con-
stitutional right—when it is not made at the time the alleged
error takes place. See Wis. Stat. § 901.03(1)(a); State v. Erick-
son, 596 N.W.2d 749, 754–55 (Wis. 1999) (declining to excuse
12 No. 13-3312
waiver and instead reviewing unobjected-to claim as claim
for ineffective assistance of counsel); State v. Hansbrough, 799
N.W.2d 887, 896 (Wis. App. 2011).
Here the state court recognized this failure to object and
said that it considered the merits of the Confrontation
Clause claim only as a basis for Carter’s ineffective assistance
claim or under plain-error or interest-of-justice review. That
more limited review is not a decision on the merits that al-
lows us to consider the claim on federal habeas review. See
Kaczmarek, 627 F.3d at 592; Gray v. Hardy, 598 F.3d 324, 329
(7th Cir. 2010); cf. Malone v. Walls, 538 F.3d 744, 756–57 (7th
Cir. 2008) (when state court makes clear that it is resolving a
federal issue despite procedural problems, federal courts can
consider merits). The state court concluded that Carter was
not entitled to relief under any of these more limited forms
of relief.
In Wisconsin, it is common for state courts to analyze a
failure to object as a claim for ineffective assistance of coun-
sel. Doing so does not mean that the state court resolved the
merits of the underlying waived claim. See Erickson, 596
N.W.2d at 754 (“[T]he normal procedure in criminal cases is
to address waiver within the rubric of the ineffective assis-
tance of counsel.”); State v. Hayes, 681 N.W.2d 203, 223–24
(Wis. 2004) (Sykes, J., concurring); State v. Benson, 822
N.W.2d 484, 489 (Wis. App. 2012). In Wisconsin, then, there
is strong support for what we already presume under feder-
al habeas practice: a state court’s rejection of the ineffective
assistance of counsel claim does not constitute a decision on
the merits of the underlying claim. See Lewis v. Sternes, 390
F.3d 1019, 1026 (7th Cir. 2004) (“A meritorious claim of attor-
ney ineffectiveness might amount to cause for the failure to
No. 13-3312 13
present an issue to a state court, but the fact that the ineffec-
tiveness claim was raised at some point in state court does
not mean that the state court was given the opportunity to
address the underlying issue that the attorney in question
neglected to raise.”).
Accordingly, Carter has procedurally defaulted his Con-
frontation Clause claim. He has not tried to show either
“cause and prejudice” or that a failure to consider his Con-
frontation Clause claim would result in a fundamental mis-
carriage of justice. Carter is not entitled to relief on that
claim.
B. Ineffective Assistance of Counsel
In Carter’s view, his lawyer’s failure to object to use of the
informant’s out-of-court statements for their truth means
that his lawyer rendered ineffective assistance of counsel
within the meaning of Strickland v. Washington, 466 U.S. 668
(1984). He argues the State’s use of those statements was
clearly barred by the rule announced in Crawford v. Washing-
ton, 541 U.S. 36, 68 (2004), that out-of-court testimonial
statements cannot be admitted against a criminal defendant
unless the declarant is unavailable and the defendant had a
prior chance to cross-examine the declarant. Although this
claim is framed in terms of whether Carter’s lawyer was in-
effective rather than the Confrontation Clause itself, the
Crawford issue is nonetheless integral to the Strickland analy-
sis here. See Campbell v. Smith, 770 F.3d 540, 547 (7th Cir.
2014) (addressing ineffective assistance of counsel claim
based on an embedded constitutional issue). Carter argues
that the state court unreasonably applied both Crawford and
Strickland in denying him post-conviction relief.
14 No. 13-3312
Under Strickland’s familiar two-pronged standard, Carter
must show both that his counsel’s performance was deficient
and that he was prejudiced as a result. Harrington v. Richter,
562 U.S. 86, 104 (2011). Here, the state court decided that
counsel’s performance was not deficient and that even if it
had been, Carter was not prejudiced. Our review of each
prong of the Strickland analysis is subject to AEDPA’s defer-
ential standard of review under § 2254(d)(1). Sussman v. Jen-
kins, 636 F.3d 329, 350–51 (7th Cir. 2011). Once AEDPA ap-
plies, “[t]he bar for establishing that a state court’s applica-
tion of the Strickland standard was ‘unreasonable’ is a high
one, and only a clear error in applying Strickland will sup-
port a writ of habeas corpus.” Id. (alteration in original) (cita-
tion omitted).
To argue his trial lawyer’s performance was deficient,
Carter relies on his counsel’s failure to object to two portions
of Officer Webster’s testimony and the prosecution’s use of
them in closing argument. First, he asserts that Officer Web-
ster should not have been able to testify that he instructed
the informant to call Carter to request “teeners” and that the
informant did so. This theory has no merit. The officer’s in-
struction and the informant’s request for “teeners” were not
hearsay because they were not “statements” making any fac-
tual assertions. See, e.g., Schindler v. Seiler, 474 F.3d 1008,
1010 (7th Cir. 2007) (“Statements that constitute verbal acts
(e.g., words of contract or slander) are not hearsay because
they are not offered for their truth.”); United States v. Moreno,
233 F.3d 937, 940 (7th Cir. 2000). Nor were they testimonial
for purposes of the Confrontation Clause. Crawford, 541 U.S.
at 59 n.9. That portion of Officer Webster’s testimony merely
described verbal acts, his own instruction, and the inform-
ant’s offer to buy, all of which Webster made and/or saw and
No. 13-3312 15
heard himself. Such verbal acts are not statements offered to
prove the truth of their contents.
If Carter’s counsel had objected to this testimony on
hearsay or Confrontation Clause grounds, his objection
should have been overruled. His performance was not defi-
cient by failing to make a futile objection. See Lambert v.
McBridge, 365 F.3d 557, 564 (7th Cir. 2004); United States v.
Neeley, 189 F.3d 670, 684 (7th Cir. 1999) (“Obviously, counsel
can not be considered ineffective for failing to make an ob-
jection to the introduction of evidence that was properly
admitted.”).
Carter’s second challenge has more substance. He argues
that his lawyer should have objected to Officer Webster’s tes-
timony that he was investigating Carter because the inform-
ant had identified Carter as someone involved in distrib-
uting controlled substances. Carter maintains that the State
also impermissibly relied on this testimony during closing
argument to establish that he was guilty of possession with
intent to distribute cocaine. The prosecutor reminded the ju-
ry, albeit obliquely, that the informant had identified Carter
as someone involved in drug dealing. The prosecutor asked
the jury to infer from the evidence that a deal had been set
up and that Carter had teeners on him as the police closed in
to arrest him as he stood in the river.
The state court held that counsel’s failure to object could
not have been deficient performance because introducing
this testimony did not violate the Confrontation Clause.2 See
2 Carter argues in his reply brief that the state court failed to address
the testimony regarding the informant’s identification of him as a drug
16 No. 13-3312
Lambert, 365 F.3d at 564; Neeley, 189 F.3d at 684. Invoking the
“course of investigation” gambit to avoid hearsay rules, it
held this testimony was offered only to explain why the po-
lice stopped Carter and pursued him.
When the reasons for the police’s actions are relevant, a
witness can testify about what information prompted those
actions. That is, when such a statement is offered only to
show the effect it had on the police, it is used for a purpose
other than the truth of its contents. E.g., United States v. Eber-
hart, 434 F.3d 935, 939 (7th Cir. 2006) (testimony is not for its
truth where it is offered “only as an explanation of why the
investigation proceeded as it did”). We have applied this
“course of investigation” rationale in several cases to permit
the government to introduce brief out-of-court statements
designed to “bridge gaps in the trial testimony that would
otherwise substantially confuse or mislead the jury.” See
Jones v. Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011) (collecting
cases). This approach is consistent with the Confrontation
Clause, which “does not bar the use of testimonial state-
ments for purposes other than establishing the truth of the
matter asserted.” See Crawford, 541 U.S. at 59 n.9; United
States v. Gaytan, 649 F.3d 573, 579 (7th Cir. 2011) (testimonial
statements of a witness did not violate the Confrontation
Clause, because they “were not offered for their truth”).
The problem, as we have explained time and again, is
that the “course of investigation” gambit is so often abused
and/or misunderstood that it is an evidentiary and constitu-
tional minefield. See, e.g., Jones, 635 F.3d at 1046; United
dealer, but this is not correct. The state court recognized that this was
part of Carter’s argument.
No. 13-3312 17
States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (“Allowing
agents to narrate the course of their investigations, and thus
spread before juries damning information that is not subject
to cross-examination, would go far toward abrogating the
defendant’s rights under the sixth amendment and the hear-
say rule.”). To convict a defendant, after all, the prosecution
does not need to prove its reasons for investigating him.
United States v. Mancillas, 580 F.2d 1301, 1310 (7th Cir. 1978).
When the prosecution offers out-of-court statements of non-
witnesses on the theory they are being offered to explain
“the course of the investigation,” it runs a substantial risk of
violating both the hearsay rules of evidence and the Con-
frontation Clause rights of the defendant under the Sixth
Amendment. Both defense counsel and trial judges need to
be on high alert when the prosecution offers what sounds
like hearsay to explain “the course of the investigation.”
Under circumstances like these, where the only reason
counsel failed to object was his understanding that such tes-
timony was not objectionable—and not some strategic
judgment—counsel runs the risk of rendering performance
that falls below the objective standard of reasonableness. See
Barrow v. Uchtman, 398 F.3d 597, 605 (7th Cir. 2005) (noting
that a lawyer’s failure to act based on his “erroneous under-
standing of state law” can render his performance deficient);
Gardner v. United States, 680 F.3d 1006, 1011–12 (7th Cir.
2012). Under AEDPA, however, the ultimate question is
“whether there is any reasonable argument that counsel sat-
isfied Strickland’s deferential standard,” and we must deny
the writ if the state court offered a reasonable argument that
counsel behaved competently. Richter, 562 U.S. at 105.
18 No. 13-3312
We recently addressed the scope of the “course of inves-
tigation” theory in Jones v. Basinger, 635 F.3d 1030 (7th Cir.
2011), when we determined that the state court unreasonably
applied Crawford in determining that the government’s use
of out-of-court informant statements fell within the “course
of investigation” theory. But that finding does not dictate
whether the state court’s use of the theory here was reason-
able. First, the use of the informant testimony here was
much narrower and more limited than in Jones, where the
government misused the gambit to give the jury a detailed
hearsay account that linked the defendant to four murders,
explained how the murders were committed, and described
what happened to the weapons afterwards. Id. at 1036–37.
Second, in Jones, unlike here, we addressed the Confronta-
tion Clause claim directly and were not encumbered by the
need to give deference to counsel under Strickland.
We need not resolve whether the failure to object here to
the arguably hearsay identification was deficient perfor-
mance, however. Even if Carter’s counsel might have been
deficient in failing to object to Officer Webster’s testimony
about the informant’s identification and its use during clos-
ing argument, Carter cannot show that the state court unrea-
sonably determined that the problematic testimony did not
prejudice him. See Taylor v. Bradley, 448 F.3d 942, 948–49 (7th
Cir. 2006) (declining to resolve whether deficient perfor-
mance when clear that no prejudice).
For a petitioner to have been prejudiced by his counsel’s
deficient performance, he must establish a reasonable prob-
ability that the result of the proceeding would have been dif-
ferent had counsel objected to the inadmissible testimony.
See Richter, 562 U.S. at 104. A reasonable probability is one
No. 13-3312 19
that undermines confidence in the outcome of the trial.
Strickland, 466 U.S. at 694. The likelihood of a different out-
come “must be substantial, not just conceivable.” Richter, 562
U.S. at 112. A guilty verdict that is “overwhelmingly sup-
ported by the record is less likely to have been affected by
errors than one that is only weakly supported by the rec-
ord.” Eckstein v. Kingston, 460 F.3d 844, 848 (7th Cir. 2006),
quoting Hough v. Anderson, 272 F.3d 878, 891 (7th Cir. 2001).
A state court’s application of the prejudice prong of Strick-
land is reviewed under the deferential standard of 28 U.S.C.
§ 2254(d).
In reviewing Carter’s conviction, the state court applied
the appropriate standard and pointed to all the evidence of
Carter’s guilt that made the court confident that the verdict
was not affected by the use of hearsay. In light of that evi-
dence, the state court reasonably determined that Carter was
not prejudiced by the admission or later use of Officer Web-
ster’s testimony about the informant.
The evidence shows that Carter possessed at least some
cocaine even if his efforts to dispose of the evidence ensured
that only 0.2 grams of cocaine were recovered. On the dis-
puted points—whether Carter possessed at least five grams
of cocaine and whether he actually intended to deliver the
cocaine he had—the State offered ample evidence of Carter’s
guilt. As the state court explained, the police observed Carter
holding a large bag containing a substance that looked like a
mixture of cocaine and crack cocaine. The officer estimated
that the large bag alone might have held a couple of ounces,
20 No. 13-3312
or over fifty grams.3 Beyond that, the officers recovered
twelve smaller baggies (or bag corners) in the river. Officer
Webster testified that the recovered baggies were prepared
in such a way that they could be expected to hold either one-
sixteenth or one-eighth of an ounce. Even if each contained
only the smaller quantity, one “teener,” Carter was in pos-
session of well over five grams.
Carter resists using the baggies to infer that he was in
possession of well over five grams, emphasizing that none of
those baggies contained cocaine at the time of the arrest. But
there was ample evidence that they did just before Carter
was arrested. After Carter’s dangerous and desperate flight
from police ended with him standing in the river, Officers
Webster and Starks saw him holding a larger bag that con-
tained a substance that looked like cocaine, and also saw that
he had a white, powdery substance on his mouth. The little
baggies that were recovered are often used to hold con-
trolled substances and are specifically prepared for that pur-
pose. Police officers actually saw him pulling those bags out
of his pocket and dumping the bags, along with their white,
powdery contents, into the water. He was seen churning the
water to disperse the substance. He was not completely suc-
cessful. A white, powdery residue remained on the water,
and a police dog alerted to the presence of narcotics in the
water. Carter also argues that absent the informant’s testi-
mony there was no evidence that he intended to deliver co-
caine. That is not correct. Officer Webster testified that the
packaging and quantities indicated intent to distribute.
3An ounce is equivalent to 28.35 grams. A “teener,” which is one-
sixteenth of an ounce, contains about 1.77 grams. Possession of just three
“teeners” would have been sufficient to support the conviction.
No. 13-3312 21
Given all of the evidence that Carter possessed at least
five grams of cocaine and intended to deliver it, the state
court did not apply federal law unreasonably in determining
there would not have been a reasonable probability of a dif-
ferent result if Carter’s attorney had objected to the use of
the informant’s hearsay identification of him as a person in-
volved in distributing drugs.
The district court’s judgment denying Carter’s petition
for a writ of habeas corpus is AFFIRMED.