Patricia Ouska v. Lynn Cahill-Masching,/1

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-2354
PATRICIA OUSKA,
Petitioner-Appellant,
v.
LYNN CAHILL-MASCHING,/1
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 C 3363--William T. Hart, Judge.
Argued September 26, 2000--Decided April 12, 2001
Before COFFEY, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Patricia Ouska was
charged with the armed robbery and murder of
Beeland Te on May 7, 1992, and was tried before
an Illinois jury. Ms. Ouska was found guilty of
those charges and was sentenced to life
imprisonment without parole by the trial court.
The Appellate Court of Illinois affirmed Ms.
Ouska’s conviction, and the Illinois Supreme
Court denied her leave to appeal. Ms. Ouska then
filed a petition for a writ of habeas corpus in
the district court; she asserted that, during her
trial, the prosecution (1) used her pre-arrest
silence as substantive evidence of her guilt in
violation of the Fifth Amendment and (2) used her
post-arrest silence against her in violation of
the Due Process Clause of the Fourteenth
Amendment. She also claimed that her trial
counsel’s failure to object to these violations
deprived her of the effective assistance of
counsel guaranteed by the Sixth Amendment. The
district court denied Ms. Ouska’s petition in its
entirety. For the reasons set forth in the
following opinion, we affirm the judgment of the
district court.
I
BACKGROUND
A. Facts
On May 7, 1992, between 9:00 and 10:00 a.m.,
Beeland "Rosa" Te was stabbed to death in the

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convenience store that she ran on West 18th
Street in Chicago. Te sold a number of different
items in the store, including toys, candy and
lottery tickets. In order to help her customers
more easily fill out their lottery slips, Te kept
a number of small pencils available in the store
for that purpose. She also kept a medal of Saint
Benedict in her cash register, a gift from her
sister that had been purchased in the
Philippines. Te had experienced health problems
in the past, and, due to a double mastectomy, she
wore silicone gel implants in her prosthesis.
Ms. Ouska and her twenty-two-month-old child
lived with Ms. Ouska’s former foster mother, Ruby
Fontenot, only a two or three minute walk from
Te’s store. Fontenot, who knew Te and often
stopped in her store, testified that she
discovered that Ms. Ouska had borrowed money from
Te and had not yet repaid that loan. Fontenot
prodded Ms. Ouska to find the money to repay this
debt, and on the morning of the murder Ms. Ouska
left Fontenot’s home between 9:15 and 9:20 a.m.
with her daughter in order to obtain those funds.
At some point before 10:00 a.m. that morning,
Ms. Ouska rang the doorbell of Erma Gonzalez, who
lives approximately two blocks away from the
Fontenot home. Ms. Ouska was bleeding from her
leg and told Gonzalez that a Mexican man had
tried to rob her on the street and had stabbed
her with a screwdriver. Gonzalez refused Ms.
Ouska’s request to allow her to clean her wound
in Gonzalez’s apartment, and so Ms. Ouska
returned to the Fontenot home. When she arrived
there, she encountered Patricia Rutledge, a
babysitter working for Fontenot that morning.
Rutledge noticed that Ms. Ouska kept her right
hand in her pocket and that her leg was cut.
While Ms. Ouska went to her room, Rutledge dialed
911, and paramedics soon arrived to take Ms.
Ouska to the hospital.
At about the same time that morning, Te’s body
was discovered at her store; she had been stabbed
forty-two times and had eight superficial cutting
wounds. The cash register was open and contained
no money. Additionally, there were no signs of
forced entry to the door separating the customer
area of the store from the store’s rear portion,
where Te’s body was found./2 Te normally kept
that door closed and locked. In that rear portion
of the store was a bathroom, where investigators
found a bloody rag in the sink.
Later that afternoon, Fontenot and her daughter
Vickie found two blood-stained one-dollar bills
on Ms. Ouska’s dresser, along with a printout of
winning lottery numbers from a previous date. The
next morning, on May 8, 1992, while Ms. Ouska was

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still at Illinois Masonic Medical Center
recovering from her stab wound, Rutledge was
again babysitting Fontenot’s grandchildren and
Ms. Ouska’s daughter at the Fontenot home.
Suspicious about the events of the previous day,
Rutledge entered Ms. Ouska’s room and looked
under her mattress, where she found a bloody
knife. Fontenot later testified that she
recognized that knife as one that Ms. Ouska had
shown her while the two were in Ms. Ouska’s room
only a few weeks before.
During that same morning, Ms. Ouska made
repeated phone calls from the hospital to a
neighbor, Lenoir Sanchez. Ms. Ouska ultimately
asked Sanchez to get something for her from under
Ms. Ouska’s mattress in the Fontenot home, which
was located next door to Sanchez’s apartment.
Sanchez testified that Ms. Ouska was not specific
as to the nature of the item that Sanchez was
supposed to retrieve from under the mattress.
Both Sanchez and Tommy Gonzalez, Sanchez’s
boyfriend and the brother of Ms. Ouska’s
boyfriend, each made separate attempts to
retrieve this unknown item from the Fontenot home
that morning. Each time, Rutledge, who had
already found the knife under Ms. Ouska’s
mattress, would not allow them entry into the
Fontenot home. Soon after, the knife was placed
in a plastic bag, and the police were called to
the scene.
When the police arrived and learned that the
knife had been found in Ms. Ouska’s room,
Detective Michael Shields was dispatched to speak
with her regarding the Te murder (Detective
Shields and a partner had spoken with Ms. Ouska
at the hospital on the previous morning about the
details of Ms. Ouska’s stabbing). When Detective
Shields arrived at the Illinois Masonic Medical
Center, Ms. Ouska was about to be released, and
she agreed to accompany the detective to the
police station. Ms. Ouska was told that she was
to look at possible mug shots of her assailant;
instead, once at the station, Detective Shields
began asking questions relating to Te’s murder.
At this point, Ms. Ouska immediately stated that
she did not wish to speak to the detective any
further, indicated that she wished to speak with
her attorney and later left the police station.
At no time during this questioning was Ms. Ouska
placed under arrest, nor was she given Miranda
warnings. Additionally, Ms. Ouska had a bag of
clothing with her as she left the hospital that
she brought with her to the police station. Upon
leaving the station, she did not take this bag
with her. Detective Shields, who had noticed
blood on some of the clothing in the bag,
inventoried the bag and its contents and sent it
to a crime laboratory./3 Inside that bag, the

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police later found a blood-stained jacket and in
its pockets found $87 in one- and five-dollar
bills, a St. Benedict medal and a small green
pencil.
Analysis later revealed that the blood on the
knife was consistent with Te’s blood and that the
knife contained silicon and fibers matching that
of Te’s prosthesis and clothing, respectively.
Testing of the blood found on the two one-dollar
bills that Fontenot and her daughter discovered
on Ms. Ouska’s dresser showed that it was
consistent with the protein and enzyme
classifications of Te’s blood. Additionally,
tests on the blood from Ms. Ouska’s jacket and
from the money located in the jacket were
consistent with the protein and enzyme
classifications of Te’s blood. Blood that had
been found in the front room of Te’s store was
determined to be consistent with Ms. Ouska’s
blood type, and blood consistent with Ms. Ouska’s
blood enzyme and protein type was found on the
rag recovered from the bathroom sink in the rear
of the store. A warrant was then issued for Ms.
Ouska’s arrest. Six days later, on May 28, 1992,
she appeared at a police station and was
arrested.
B. Earlier Proceedings
1.
During her jury trial, Ms. Ouska testified that
she had entered Te’s store on the morning of the
murder and saw Fontenot’s son-in-law, Salvador
Martinez, repeatedly stabbing the victim. Ms.
Ouska had, to this point, never told this story
to the police or any judicial officer. She
maintained that when she told Martinez to stop,
he knocked her to the ground, stabbed her in the
leg with the knife and threatened that if she
told anyone about his crime, he would hurt Ms.
Ouska and her child. Ms. Ouska also testified
that the knife belonged to Martinez and not to
her. After Martinez ran from the store, Ms. Ouska
claimed that she quickly pulled the knife out of
her leg and put it in the pocket of a sweatshirt
that she was wearing. She also maintained that
she never entered the rear portion of the store,
the area where Te was killed.
Ms. Ouska also provided her version of a number
of key points in the sequence of events after the
murder. She testified that when she had arrived
at Erma Gonzalez’s house just after the stabbing,
she told Gonzalez that she had been stabbed with
a screwdriver because, until she returned to her
home, she was unsure of the nature of the object
that she had been stabbed with and believed that
it could have been a screwdriver. She also
explained that she had stated falsely that a

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Hispanic man had stabbed her on the street
because she was afraid that, if she told the
truth, Martinez would endanger her and her child.
Lastly, Ms. Ouska maintained that when she called
Lenoir Sanchez’s apartment on the morning after
the murder, she asked Sanchez to retrieve health
insurance information from under her mattress,
not the knife involved in the murder.
Prior to Ms. Ouska’s testimony, the prosecution
called Detective Shields to the stand in its
case-in-chief. It elicited from him the fact that
Ms. Ouska had remained silent when the detective
had asked her questions regarding the murder at
the police station. He characterized Ms. Ouska’s
behavior at that time as "uncooperative." R.7-8
at 16C.
Later, on cross-examination of Ms. Ouska, the
prosecution again engaged in the following line
of questioning regarding Ms. Ouska’s pre-arrest,
pre-Miranda silence:
[State] And you didn’t tell Det. Shields on the
[ ]8th at Illinois Masonic Medical Center that
Salvador Martinez committed the crime?
A: [Ms. Ouska] No.
Q: You didn’t ask for witness protection because
you had just seen this woman brutally murdered?
A: No.
Q: When you went to the police station . . . at
Area 4 Violent Crimes . . . [y]ou didn’t tell
Det. Shields or Pavon at that time that Salvador
Martinez had committed the crime?
A: No.
R.7-3 at D-233-234. Additionally, the prosecution
also referenced Ms. Ouska’s actions after her
arrest:
Q: [State] You went to bond court; right?
A: [Ms. Ouska] Correct.
Q: And you appeared before a judge?
A: Correct.
Q: Did you tell the judge at that time that you
were innocent and Salvador Martinez had committed
the murder?
A: No, I did not.
Q: Did you tell the Assistant State’s Attorney who

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was there that you were innocent and Salvador
Martinez committed murder?
A: No, I did not.
* * *
Q: So then you come into Judge Reyna’s courtroom;
right?
A: Yes.
Q: And the case has been pending within this
courtroom for approximately two-and-a-half years?
A: Correct.
* * *
Q: As a matter of fact you decided you would wait
until your day of trial?
A: No. I did tell a couple of people.
Q: Well I am just telling you you decided you
would wait until your day of trial and reveal in
a public courtroom where Salvador Martinez could
walk right in here, you decide you would wait
until then and tell the ladies and gentlemen of
the jury that you were innocent and Salvador
Martinez committed murder?
A: Yes.
Id. at D-235-237. Later, in closing argument, the
prosecution again made reference to Ms. Ouska’s
silence regarding her claim that it was Martinez
who had murdered Te./4 Ms. Ouska’s trial counsel
did not object to any of this questioning by the
prosecution, with the exception of the remarks in
closing argument; even there, counsel only
objected on the ground that the assertion was not
supported by the evidence. That objection was
overruled by the trial court. Ultimately, Ms.
Ouska was found guilty of first-degree murder and
armed robbery and sentenced to life imprisonment.
2.
In its review of Ms. Ouska’s conviction, the
Appellate Court of Illinois first determined that
the prosecution’s comments during cross-
examination regarding Ms. Ouska’s pre-arrest
silence did not run afoul of the Constitution. It
explained only that it found "no error" because
those comments addressed events occurring before
Ms. Ouska was in custody and during a time when
she understood that her participation was
voluntary. R.1, Ex.A at 8. The court did not
mention the prosecution’s reference to Ms.

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Ouska’s pre-arrest silence during its case-in-
chief as part of its questioning of Detective
Shields.
The court next addressed the prosecution’s
references to Ms. Ouska’s post-arrest silence
during cross-examination and in closing argument.
The court noted that Ms. Ouska did not object to
these comments during trial and that this
"generally constitutes a waiver of any
improprieties." Id. at 9. The court then examined
the issue for plain error and ruled that the use
of the post-arrest silence did not adversely
affect Ms. Ouska’s right to a fair trial because
a substantial amount of evidence existed to
connect her to the commission of the crime.
The court also ruled that Ms. Ouska could not
make out a claim of ineffective assistance of
counsel on the ground that her trial counsel
failed to object to the improper use of her
silence. It held that Ms. Ouska could not show
that, under the second part of the test
articulated in Strickland v. Washington, 466 U.S.
668 (1984), but for her counsel’s failure there
was a reasonable probability that the result of
the trial would have been different.
After finding no other defects with Ms. Ouska’s
trial, the Appellate Court affirmed her
convictions and her sentence. The Illinois
Supreme Court later denied leave to appeal that
decision.
3.
Ms. Ouska then filed a petition for a writ of
habeas corpus in the district court under 28
U.S.C. sec. 2254. The district court first
addressed the use of Ms. Ouska’s pre-arrest
silence. It noted that a defendant’s Fifth
Amendment rights are not violated by the use of
pre-arrest silence to impeach a defendant’s
credibility, and that, because Ms. Ouska
ultimately took the stand and testified in her
own behalf, the prosecution had used her pre-
arrest silence to impeach her credibility and not
to establish her guilt./5
The district court, however, also found that the
prosecution had made reference to Ms. Ouska’s
post-arrest silence in violation of her due
process rights. See Doyle v. Ohio, 426 U.S. 610
(1976). Nevertheless, it noted that, even if that
issue had been preserved for appeal, any error
was harmless under the standard of review
applicable to habeas corpus petitions set forth
in Brecht v. Abrahamson, 507 U.S. 619 (1992). In
light of the large amount of evidence suggesting
that Ms. Ouska had committed the crimes in

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question, and her shifting stories regarding her
version of events, the use of her post-arrest
silence did not have a substantial and injurious
effect or influence on the jury’s verdict.
Lastly, the district court found meritless Ms.
Ouska’s claim that her trial counsel’s failure to
object to the use of her silence constituted
ineffective assistance of counsel under the Sixth
Amendment. Like the Illinois Appellate Court, the
district court held that Ms. Ouska could not meet
the second prong of the Strickland test; she
could not demonstrate that the outcome of her
trial would have been different if trial counsel
had objected to the references to her silence.
As a result, the district court denied Ms.
Ouska’s petition for a writ of habeas corpus. Ms.
Ouska then applied to the district court for a
certificate of appealability, but the court
declined to grant one. Subsequently, a judge of
this court granted a certificate limited to two
issues: (1) whether the prosecution’s use of Ms.
Ouska’s post-arrest silence violated her due
process rights and (2) whether her trial counsel
rendered constitutionally ineffective assistance
of counsel by failing to object to the
prosecution’s use of her post-arrest silence.
II
DISCUSSION
Ms. Ouska now seeks review of the three claimed
errors that she presented to the district court.
First, she asks that we amend her certificate of
appealability and review the district court’s
holding that the prosecution did not infringe on
her Fifth Amendment privilege against self-
incrimination by commenting on her pre-arrest,
pre-Miranda silence. Ms. Ouska claims that the
reference to her pre-arrest silence in the
prosecution’s case-in-chief, during the testimony
of Detective Shields in advance of her own
testimony, was an unconstitutional attempt to
draw an inference of guilt. Next, she maintains
that the use of her post-arrest silence was not
only constitutional error, but that the error
significantly prejudiced her case and therefore
cannot be considered harmless. Lastly, Ms. Ouska
contends that her trial attorney’s failure to
object to these prosecutorial references
constituted ineffective assistance of counsel and
excuses any procedural default that may have
occurred.
A. Applicable Standards of Review
In an appeal from a ruling on a petition for
habeas relief, we review a district court’s
findings of fact for clear error and its rulings

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on issues of law de novo. See Foster v. Schomig,
223 F.3d 626, 634 (7th Cir. 2000), cert. denied,
Foster v. Neal, ___ S. Ct. ___, 2001 WL 285839
(U.S. Mar. 26, 2001); Gardner v. Barnett, 199
F.3d 915, 918 (7th Cir. 1999) (en banc), cert.
denied, Gardner v. Neal, 529 U.S. 1079 (2000).
Additionally, because the habeas petition in this
case was filed after the effective date of the
Antiterrorism and Effective Death Penalty Act of
1996 ("AEDPA"), the standard of review contained
in that Act governs Ms. Ouska’s claims. See Lindh
v. Murphy, 521 U.S. 320, 322-23 (1997); Braun v.
Powell, 227 F.3d 908, 916 (7th Cir. 2000), cert.
denied, 121 S. Ct. 1164 (2001). After AEDPA, the
federal habeas statute allows us to grant habeas
relief only if the state court’s denial of relief
"was contrary to, or involved an unreasonable
application 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. sec. 2254(d); see
also Braun, 227 F.3d at 916. "This standard only
applies, however, to a ’claim that was
adjudicated on the merits in State court proceedings.’"
Braun, 227 F.3d at 916 (quoting 28 U.S.C. sec.
2254(d)). We have noted that the Supreme Court
has "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.’" Anderson v. Cowan, 227 F.3d
893, 896 (7th Cir. 2000) (quoting Williams v.
Taylor, 529 U.S. 362, 405-06 (2000)).
Additionally, an "unreasonable application" of
clearly established Supreme Court precedent
occurs "’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 896 (quoting Williams,
529 U.S. at 407-08). We review whether a state
ruling was "contrary to" clearly established law
de novo; however, in determining whether a state
court decision was an "unreasonable application
of" clearly established law, we defer to any
reasonable state court decision. See id. at 896-
97; Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir.
1999). With that standard of review in mind, we
now address Ms. Ouska’s claims.
B. Enlargement of the Certificate of
Appealability

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Before proceeding further, we shall determine
whether, as Ms. Ouska requests, we ought to
enlarge the certificate of appealability to
include her contention that the prosecution’s use
of her pre-arrest silence violated her rights
under the Due Process Clause.
1.
In issuing a certificate of appealability
("certificate"), the circuit judge limited the
issues on appeal to "[w]hether the prosecution’s
use of Ouska’s post-arrest silence violated her
due process rights and whether Ouska’s trial
counsel was ineffective in failing to object to
the prosecution’s use of Ouska’s post-arrest
silence." Order of Dec. 21, 1999./6 In her
appellate briefs, Ms. Ouska asks us to amend that
certificate to include her claim that the
prosecution infringed her privilege against self-
incrimination by introducing testimony of her
pre-arrest, pre-Miranda silence in its case-in-
chief.
Pursuant to 28 U.S.C. sec. 2253(c), a petitioner
in habeas corpus may only appeal those issues for
which a certificate of appealability has been
granted. See Porter v. Gramley, 112 F.3d 1308,
1312 (7th Cir. 1997). A certificate may issue
only as to those claims for which the applicant
has made a substantial showing of the denial of a
constitutional right. See 28 U.S.C. sec.
2253(c)(2). We have noted that, if a certificate
is granted as to certain issues, but the
petitioner is later able to make a substantial
showing of the denial of a constitutional right
as to a different issue, we shall amend the
certificate to include such a claim. See
Rodriguez v. Scillia, 193 F.3d 913, 920 (7th Cir.
1999); Williams v. Parke, 133 F.3d 971, 975 (7th
Cir. 1997).
The State asks us to refuse to consider Ms.
Ouska’s request to amend the certificate. It
submits that, because Ms. Ouska waited until the
filing of her appellate briefs to request that we
do so, and because this court has already issued
a certificate as to specific issues, we should
refuse to amend it now. Consideration of such a
request, argues the State, "wastes time and
resources and distracts the parties and the
court." Appellee’s Br. at 10. However, we have
often considered requests to amend a certificate
to include additional issues, not only when a
party specifically asks that we do so in its
briefs, see e.g., Schaff, 190 F.3d at 528; Hugi
v. United States, 164 F.3d 378, 380 (7th Cir.
1999), but also when a party implicitly makes
such a request by simply including issues in its
briefs that were not specified in the

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certificate, see, e.g., Rodriguez, 193 F.3d at
920-21; Sylvester v. Hanks, 140 F.3d 713, 715
(7th Cir. 1998); Williams, 133 F.3d at 975. Of
course, when we have determined that the
expansion of a certificate was not warranted, we
have noted that "we are not required to and will
not" address arguments outside of those issues
certified for appeal. Fountain v. United States,
211 F.3d 429, 433 (7th Cir. 2000).
In Porter v. Gramley, 112 F.3d 1308 (7th Cir.
1997), we addressed a similar request by a state.
In that case, a district court granted a
certificate with respect to only one claim; on
appeal the petitioner asked that we expand the
certificate to include a separate claim. See
Porter, 112 F.3d at 1312. The State of Illinois
objected, arguing that the petitioner should
first have to make an explicit request for an
expansion of the certificate before raising the
issue on appeal. See id. We noted that Federal
Rule of Appellate Procedure 22(b), which states
that when a petitioner makes "no express request
for a certificate . . . the notice of appeal
constitutes a request [for a certificate],"
indicates that, when a district court granted a
certificate only as to certain issues, this court
should consider a notice of appeal addressing
other issues as an implicit request to expand
that certificate. See id. As a result, we
declined to implement a requirement similar to
that which the State asks for here. Moreover,
after Porter, we have considered implicit
requests to amend a certificate made in a
petitioner’s briefs, not only when the
certificate was issued by the district court, but
also when it was issued by our own court. See
Rodriguez, 193 F.3d at 920 (noting that this
court "may add issues to [a] certificate" that it
issued, "if it is deemed necessary"); Sylvester,
140 F.3d at 715 (same)./7
Therefore, as our past precedent dictates, we
shall continue to consider requests to amend a
certificate of appealability even when they are
presented in a petitioner’s briefs to this court.
We are mindful that the certificate does play an
important role as "a screening device, helping to
conserve judicial (and prosecutorial) resources."
Young v. United States, 124 F.3d 794, 799 (7th
Cir. 1997). However, in those rare instances
where the importance of an issue does not become
clear until later in an appellate proceeding,
this court has the authority to consider that
issue, even though it is not included in the
initial certificate./8
2.
To amend her certificate of appealability, Ms.

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Ouska must make a substantial showing that the
State’s use of her pre-arrest silence at trial
violated her constitutional rights. To do so, she
must demonstrate that reasonable jurists could
debate whether this challenge in her habeas
petition should have been resolved in a different
manner or that the issue presented was adequate
to deserve encouragement to proceed further. See
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);
Rutledge v. United States, 230 F.3d 1041, 1047
(7th Cir. 2000), cert. denied, 121 S. Ct. 1207
(2001).
The Illinois Appellate Court limited its review
of the prosecution’s use of Ms. Ouska’s silence
to instances of impeachment and did not address
the use of that silence in the prosecutor’s case-
in-chief. We therefore review this issue under
pre-AEDPA standards.
In Jenkins v. Anderson, 447 U.S. 231, 238
(1980), the Supreme Court ruled that the Fifth
Amendment’s privilege against self-incrimination
is not violated when the prosecution uses a
defendant’s pre-arrest silence to impeach that
defendant’s credibility. The Court reasoned that,
although it "can be argued that a person facing
arrest will not remain silent if his failure to
speak later can be used to impeach him," once a
defendant voluntarily decides to take the stand,
that individual has an obligation to testify
truthfully. Id. at 236-38. At that point, the
"’interests of the other party and regard for the
function of courts of justice to ascertain the
truth become relevant, and prevail in the balance
of considerations determining the scope and
limits of the privilege against self-incrimination.’"
Id. (quoting Brown v. United States, 356 U.S.
148, 156 (1958)).
Jenkins, however, left open the question of
whether pre-arrest silence could be used against
a defendant, not for impeachment purposes, but as
substantive evidence of guilt. See id. at 236
n.2. We addressed that issue in United States ex
rel. Savory v. Lane, 832 F.2d 1011 (1987). Savory
involved a defendant who, in a non-custodial
setting and without being provided with Miranda
warnings, refused to answer any questions from
police officers regarding a murder investigation.
See id. at 1015. In that case, we concluded that
the Supreme Court’s opinion in Griffin v.
California, 380 U.S. 609 (1965), which had
forbidden the prosecution from using a
defendant’s silence at trial as an inference of
his guilt, "applies equally to a defendant’s
silence before trial, and indeed, even before
arrest." Savory, 832 F.2d at 1017. We reasoned
that the right to remain silent attached before
the institution of adversarial proceedings, and

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although "the presence of Miranda warnings might
provide an additional reason for disallowing use
of the defendant’s silence as evidence of guilt,
they are not a necessary condition to such a
prohibition." Id. at 1018./9 Lastly, we noted
that, because the defendant in Savory did not
take the stand, the prosecution’s motive in
referring to his pre-arrest, pre-Miranda silence
was to suggest that he was guilty, not to impeach
his testimony, as was the case in Jenkins. See
id. at 1017.
In this case, the prosecution made reference to
Ms. Ouska’s pre-arrest, pre-Miranda silence
regarding Te’s murder, not only during its cross-
examination of Ms. Ouska, but also during its
case-in-chief. This reference occurred when the
State questioned Detective Shields regarding his
discussion with Ms. Ouska about Te’s death on the
day after the murder. In response to the
prosecution’s questions, Detective Shields noted
that Ms. Ouska repeatedly declined to discuss the
murder, and he referred to her attitude as
"uncooperative." R.7-8 at 16C. The district court
ruled that, because Ms. Ouska later testified in
the case and provided her own explanation for her
silence, the prosecution was free to comment on
her pre-arrest silence as a method of impeaching
her testimony. See R.18 at 4-11 (distinguishing
Savory as a case where the defendant did not take
the stand, such that any reference to his silence
must have been to suggest his guilt).
Ms. Ouska argues that the prosecution’s
reference to her silence in its case-in-chief,
before she had ever taken the stand, shows that
its purpose in using that silence was to
demonstrate substantive evidence of her guilt,
not to impeach her credibility. Our opinion in
United States v. Hernandez, 948 F.2d 316 (7th
Cir. 1992), supports this claim. In Hernandez, we
held that, when the prosecution makes reference
to a defendant’s pre-Miranda silence in its case-
in-chief,/10 that reference demonstrates that
those comments were intended as an inference of
the defendant’s guilt, even when that defendant
later takes the stand. See 948 F.2d at 323.
Moreover, we also noted that there was no
evidence that the improper references in the
prosecution’s case-in-chief were made
inadvertently. See id. The prosecutor in
Hernandez had returned to questions regarding the
pre-Miranda silence after an objection by the
defense--a fact that we found to demonstrate a
deliberate attempt to imply guilt and to show
that "the prosecutor here asked his question
expecting the answer he got." Id. In Ms. Ouska’s
case, as in Hernandez, the State made reference
to her pre-arrest, pre-Miranda silence in its
case-in-chief, before Ms. Ouska ever took the

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stand. Moreover, there was no indication that the
State’s questioning of Detective Shields
regarding Ms. Ouska’s silence was inadvertent or
was otherwise not meant to suggest guilt. The
State not only asked Detective Shields a number
of follow-up questions regarding Ms. Ouska’s
silence at the hospital, but also continued to
refer to the exchange between the two during its
cross-examination of Ms. Ouska.
The State, relying on United States v.
Davenport, 929 F.2d 1169 (7th Cir. 1991), argues
that Savory’s rule against the use of pre-arrest
silence does not apply when a defendant agrees to
speak with authorities, but then later chooses to
stop doing so. Davenport involved two defendants
who, aware that they were under investigation by
the I.R.S. regarding unusually large deposits
they had made, decided to answer an I.R.S.
agent’s questions regarding the transaction in an
attempt to ward off future prosecution./11 See
929 F.2d at 1171-74. After "start[ing] down this
path of self-exculpation," the defendants refused
to answer other, related questions of the agents;
at trial, they invoked their right against
compulsory self-incrimination to prevent the
admission of any of the comments they made to the
investigators. Id. at 1174. We explained that:
The privilege against self-incrimination is not a
privilege to attempt to gain an advantage in the
criminal process, whether in its investigatory or
its trial stage, by selective disclosure followed
by a clamming up. Having voluntarily given the
agent their version of the events, the
[defendants] forfeited their privilege not to
answer questions concerning that version.
Id. at 1174-75; see also Williams v. Chrans, 945
F.2d 926, 953 (7th Cir. 1991). However, Ms.
Ouska’s actions are different than those of the
defendants in Davenport in some important
respects. Ms. Ouska did not consent to accompany
Detective Shields to the police station knowing
that she would be questioned regarding Te’s
murder--instead, she was told that she would be
looking at mug shots of her assailant. Moreover,
the record demonstrates that once at the station,
as soon as the police began to inquire about Te’s
death, Ms. Ouska immediately ceased the
interview, requested her lawyer and later left
the station./12 These facts do not suggest a
suspect who, as was the case in Davenport, aware
that she was being questioned regarding an
investigation, attempted to exculpate herself
with some answers and then later refused to
answer additional questions related to those
comments. It is true that at the time of her
conversation at the station with Detective
Shields, Ms. Ouska previously had told police a

-- 14 of 24 --

story that attempted to shield herself from
inquiry regarding Te’s murder; she falsely
claimed that she had been stabbed on the street
by a Mexican man. However, in light of the fact
that, when aware that she was under investigation
for Te’s murder, Ms. Ouska immediately declined
to answer any and all questions, we are doubtful
that her previous comments regarding her initial
explanation of the stabbing would be sufficient
to start her down the "path of self-exculpation"
under the meaning of Davenport, 929 F.2d at 1174.
As a result, we believe that Ms. Ouska has made
a substantial showing, adequate to deserve
encouragement to proceed further, that the State
used her pre-arrest, pre-Miranda silence as an
improper inference of her guilt, in violation of
her constitutional rights. The State, as it had
the right to do regarding issues not included in
a certificate of appealability, declined to
address Ms. Ouska’s argument fully in its brief
regarding the pre-arrest silence claim. See
Schaff, 190 F.3d at 528 n.16; Sylvester, 140 F.3d
at 715. Typically at this stage, we would amend
the certificate to add this issue and "extend the
appellee an opportunity to file a supplemental
brief." Sylvester, 140 F.3d at 715. However, for
the reasons set forth in Section II.C of this
opinion, this step will not be necessary, as any
constitutional error in the use of Ms. Ouska’s
pre-arrest, pre-Miranda silence was harmless. See
Brecht, 507 U.S. at 637. Accordingly, we shall
not enlarge the certificate of appealability.
C. The Prosecutor’s Use of Post-Arrest
Silence
In addition to its references to Ms. Ouska’s
pre-arrest silence, the State also made reference
to Ms. Ouska’s post-arrest, post-Miranda silence
by noting her failure to claim that it was
Martinez, and not her, who had murdered Te. In
its consideration of this issue, the Illinois
Appellate Court relied upon the doctrine of
waiver because there had been no objection to
these prosecutorial statements at trial. Ms.
Ouska must therefore show cause and prejudice
before we can consider the merits of this
contention. See Jenkins v. Nelson, 157 F.3d 485,
491 (7th Cir. 1998) ("If a state court does not
reach a federal issue because of a state
procedural bar, that issue cannot be raised in a
writ of habeas corpus to a federal court without
a showing of cause and prejudice.") (citing
Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977)).
Ms. Ouska maintains that the ineffective
assistance of her trial counsel in failing to
object to the use of the post-arrest silence
satisfies the standard for "cause and prejudice."
See Murray v. Carrier, 477 U.S. 478, 488 (1986).

-- 15 of 24 --

The Supreme Court has explained that to
demonstrate "prejudice" under the cause and
prejudice standard, a defendant must "shoulder
the burden of showing, not merely that the errors
at his trial created a possibility of prejudice,
but that they worked to his actual and
substantial disadvantage, infecting his entire
trial with error of constitutional dimensions."
United States v. Frady, 456 U.S. 152, 170 (1982)
(emphasis in original)./13
We believe that Ms. Ouska has not demonstrated
prejudice from any improper use of her post-
arrest silence in light of the very substantial
other evidence of her guilt. As an initial
matter, the evidence demonstrated that Ms. Ouska
had the opportunity to commit the murder on the
morning of May 7, 1992, and that she was at the
murder scene at the time of Te’s death. Fontenot,
Ms. Ouska’s former foster mother, testified that,
on the night before and the morning of the
murder, she had been arguing with Ms. Ouska about
money that Ms. Ouska had borrowed from Te.
Fontenot maintained that, on the morning of the
murder, Ms. Ouska left home in order to obtain
money so that this debt could be repaid. Ms.
Ouska left that morning at approximately 9:20
a.m. and returned, bloodied from a wound to her
leg, at 10:00 a.m.; testimony established that Te
was killed between 9:00 a.m. and 10:00 a.m. Ms.
Ouska herself also admits that she was at Te’s
store, located only two or three minutes from the
Fontenot home where Ms. Ouska lived, at the time
of the murder. She contends, however, that, when
she arrived at the scene, she saw Martinez
repeatedly stabbing the victim.
Additionally, significant physical evidence
linked Ms. Ouska to the crime scene and the
murder. A knife was found under Ms. Ouska’s
mattress on the day after the murder; the knife
contained blood later found to be consistent with
Te’s blood type and silicon later determined to
be consistent with the silicon gel implants that
Te wore in her prosthesis. Fontenot testified
that only three weeks before, she had seen the
same knife in Ms. Ouska’s room and that Ms. Ouska
explained to Fontenot at that time that she had
found the knife in the basement of the house.
Fontenot also said that, on the afternoon of the
murder, she and her daughter found blood-stained
money and a printout of winning lottery numbers
from a previous date on Ms. Ouska’s dresser./14
The blood on those two one-dollar bills was later
found to be consistent with Te’s blood enzyme and
protein type. Additionally, blood consistent with
Ms. Ouska’s blood type was found in the front
room of Te’s store, and blood consistent with Ms.
Ouska’s blood enzyme and protein type was found

-- 16 of 24 --

on a rag recovered from the bathroom sink in the
rear of the store.
Other evidence found in Ms. Ouska’s possession
casts doubt on the credibility of her version of
events. When the police arrived at the store
after Te’s murder, the store’s cash register was
found open and emptied of money. Among Ms.
Ouska’s personal items, which the police had
inventoried after she accompanied Detective
Shields to the station on the day after the
murder, the police found a blood-stained jacket.
The blood on the jacket was later found to be
consistent with Te’s blood. In the pocket of that
jacket was a medal depicting Saint Benedict./15
Teodora Kwong, Te’s sister, testified that the
medal was the same one that she had purchased in
the Phillippines and given as a gift to Te and
that Te kept the medal in her cash register at
the store. The police also found a small green
pencil in the jacket, later identified by Arthur
Kwong, Te’s brother-in-law, as one similar to the
pencils that Te kept in her store for customers
to use in filling out lottery slips./16 Lastly,
the police discovered $87 in one-and five-dollar
bills in the jacket, despite the fact that
Fontenot had testified that Ms. Ouska left the
house on the morning of the murder to look for
money.
Additional evidence also provided reason for the
jury to doubt the credibility of Ms. Ouska’s
testimony. On the morning of the murder, Ms.
Ouska was ultimately taken to Illinois Masonic
Medical Center to receive treatment for her
wounds, and she stayed there until the next day,
May 8, 1992. While there, she made repeated phone
calls to the apartment of a friend, Lenoir
Sanchez, who lived in the building next to the
Fontenot home. Sanchez testified that Ms. Ouska
asked her to go next door and to obtain
"something from under [Ms. Ouska’s] mattress,"
but when Sanchez asked what the item was, Ms.
Ouska would not tell her. R.7-4 at 255C. Both
Sanchez and her boyfriend Tommy Gonzalez each
made separate attempts to get this unknown item
from the Fontenot home. However, earlier that
morning, under the same mattress, Rutledge had
found the blood-stained knife used in the murder.
As a result, Rutledge would not let Sanchez or
Gonzalez in, and the police were called soon
thereafter. Ms. Ouska subsequently testified that
she kept her HMO card and paperwork under the
mattress, materials that she needed due to her
hospital stay, and that she asked Sanchez to
retrieve that information. Ms. Ouska also claimed
that she did not place the knife under the
mattress; she explained that she had left the
knife on top of the bed, in the pocket of the
sweatshirt she had been wearing that morning,

-- 17 of 24 --

before she left for the hospital. Despite this
alternate explanation, Ms. Ouska’s phone calls to
Sanchez and her request that Sanchez retrieve
"something" from under Ms. Ouska’s mattress, the
same mattress under which the knife had been
found earlier that morning, could have given the
jury additional license to question Ms. Ouska’s
credibility.
Moreover, Ms. Ouska testified that at no point
did she enter the rear portion of the convenience
store, where Te was stabbed and where Te’s body
was found. Blood consistent with Te’s blood,
however, was later found on Ms. Ouska’s jacket.
Additionally, blood consistent with Ms. Ouska’s
blood enzyme and protein type was found on a rag
recovered from the store’s bathroom. The bathroom
is located in the rear portion of the store.
Lastly, a number of other aspects of Ms. Ouska’s
testimony were inconsistent with her previous
rendition of events. Between 9:00 a.m. and 10:00
a.m. on the morning of the murder, Ms. Ouska went
to the home of her neighbor, Erma Gonzalez, and
told Gonzalez that a Mexican man had tried to rob
her and had stabbed her with a screwdriver,
causing the wound in her leg. Yet, Ms. Ouska
later told Fontenot, Rutledge and the police
officers who first spoke with her about her
injuries that she had been stabbed with a knife,
not a screwdriver. Then, at trial, Ms. Ouska
claimed that it was Martinez who had stabbed her,
not the Mexican man that she had earlier
described. Additionally, when Ms. Ouska related
her story of the stabbing by the Mexican man to
Fontenot and Rutledge, she claimed that, at one
point, she had possession of the knife used in
the stabbing but had dropped it on the street;
Ms. Ouska later testified that she was concealing
the knife at that time in her jacket, and that
same knife was later found under her mattress.
Ultimately, the evidence supporting Ms. Ouska’s
guilt in this case was substantial and multi-
faceted. That evidence demonstrated that she had
the opportunity to kill Te on the morning of May
7, 1992, and that she was at the crime scene when
the murder occurred. A number of items that
appear to have come from the store, and more
particularly its cash register, were found later
in Ms. Ouska’s clothing, and Ms. Ouska cannot
explain how they came to be there. Blood
consistent with Te’s blood was found on Ms.
Ouska’s jacket, on money found in Ms. Ouska’s
room and, most importantly, on the knife found
under Ms. Ouska’s mattress. Testimony linked Ms.
Ouska to the murder weapon and suggested that she
attempted to hide that weapon before others could
discover it. Moreover, Ms. Ouska’s explanation of
the events surrounding Te’s death were

-- 18 of 24 --

inconsistent, casting further doubt on her
credibility. Lastly, as the district court noted,
"there is no evidence that corroborates [Ms.
Ouska’s] story about Martinez being the one who
attacked the victim." R.18 at 13.
Given this evidence, we do not believe that Ms.
Ouska can establish that she suffered prejudice
by the prosecutor’s remarks about her post-arrest
silence.
D. Ineffective Assistance of Counsel
Ms. Ouska also asserts, as an independent ground
for relief, that she was deprived of the
effective assistance of counsel, guaranteed by
the Sixth Amendment, because her trial counsel
failed to object to the State’s references to her
post-arrest silence./17 For the sake of
completeness, we now shall address the claim in
this context. In order to prevail on a claim of
ineffective assistance of counsel, Ms. Ouska must
satisfy the familiar test set forth in Strickland
v. Washington, 466 U.S. 668 (1984). Under
Strickland, Ms. Ouska must demonstrate (1) that
her counsel’s performance was deficient, such
that under the circumstances, it was unreasonable
under prevailing professional norms and (2) that
she was prejudiced by her counsel’s deficient
performance. See Kitchen v. United States, 227
F.3d 1014, 1019-20 (7th Cir. 2000) (citing
Strickland, 466 U.S. at 687-88). This claim is
one that was decided on the merits by the
Appellate Court of Illinois, which determined
that Ms. Ouska could not satisfy the test’s
second prong, as "the evidence was not closely
balanced," and, therefore, "counsel’s failure to
object [to the use of Ms. Ouska’s silence] did
not affect the result of the proceeding." R.1,
Ex.A at 10. The district court agreed with this
determination.
As we have noted earlier, Ms. Ouska filed her
petition for habeas corpus on June 1, 1998, after
the effective date of AEDPA; therefore, AEDPA
applies to her case. See Williams v. Taylor, 529
U.S. 420, 429 (2000); Foster, 223 F.3d at 631
n.2. Under that statute, Ms. Ouska cannot obtain
habeas corpus relief on a claim that the
Appellate Court of Illinois addressed on the
merits, unless that court’s determination
"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). We have noted that when
addressing a claim of ineffective assistance of
counsel under the AEDPA’s deferential standard of
review, "’only a clear error in applying
Strickland’s standard would support a writ of

-- 19 of 24 --

habeas corpus.’" Franklin v. Gilmore, 188 F.3d
877, 885 (7th Cir. 1999) (quoting Holman v.
Gilmore, 126 F.3d 876, 882 (7th Cir. 1997)),
cert. denied, 529 U.S. 1039 (2000). This
principle applies because "Strickland builds in
an element of deference to counsel’s choices in
conducting the litigation [and] sec. 2254(d)(1)
adds a layer of respect for a state court’s
application of the legal standard." Id. (quoting
Holman, 126 F.3d at 881).
Under this standard of review, even assuming
arguendo that Ms. Ouska’s trial counsel was
deficient for failing to object to the use of her
silence, any such error would not have prejudiced
her. There is no reasonable probability that, but
for that error, the result of the proceeding
would have been different. See Strickland, 466
U.S. at 694. As we have previously discussed in
detail, the evidence in the record supporting Ms.
Ouska’s conviction is considerable. In light of
that evidence, we believe that any harm caused by
the failure of Ms. Ouska’s trial attorney to
object to the State’s references to her silence
would not have changed the result of her trial.
Thus, Ms. Ouska cannot satisfy the second prong
of the Strickland test, and her claim must fail.
The decision of the Appellate Court of Illinois
is not "an unreasonable application" of federal
law. 28 U.S.C. sec. 2254(d)(1).
Conclusion
Therefore, for the reasons set forth in this
opinion, the judgment of the district court is
affirmed.
AFFIRMED
/1 In her petition for a writ of habeas corpus, Ms.
Ouska named Odie Washington, then the director of
the Illinois Department of Corrections, as the
Respondent in this action. Subsequently, pursuant
to Federal Rule of Appellate Procedure 43(c),
Gwendolyn Thornton replaced Washington as the
Respondent; Thornton was later replaced by the
present Respondent, Lynn Cahill-Masching. For
ease of reference, we shall refer to the
Respondent in this opinion as "the State."
/2 The structure of the convenience store where Te
worked was described in detail by John Redmond, a
forensic investigator and evidence technician for
the Chicago Police Department, who arrived at the
store soon after the murder to investigate the
scene. See R.7-4 at 102C-103C. The store
contained a customer area that patrons entered
when they passed through the front entrance. A
dividing wall separated this customer area from

-- 20 of 24 --

the rear portion of the store, and there was a
small window in the dividing wall where customers
received service from store workers, such as Te.
The wall included a door that led to the rear of
the store; when police arrived after the murder,
this door was open, but there was no sign of
forced entry. Te’s body was found in the rear
portion of the store, approximately 25 feet from
the door located in the dividing wall.
/3 Ms. Ouska’s trial counsel did not file a motion
to suppress evidence obtained during the police’s
search of this bag of clothing. The Appellate
Court of Illinois noted that Ms. Ouska
voluntarily gave this bag to the police and ruled
that the failure of her counsel to file a
suppression motion did not rise to the level of
ineffective assistance of counsel. See R.1, Ex.A
at 11-12. The validity of this search is not
disputed by the parties on appeal.
/4 For example, the prosecution noted that "the
first time that [Martinez’s] name ever pops up to
. . . any type of law enforcement personnel, is
when she opens her mouth on the stand two and a
half years after the murder." R.7-2 at E-70.
/5 The district court presumed that Ms. Ouska was
not given Miranda warnings during her visit to
the police station and observed that there was
"no contention" that this visit, occurring after
her release from the hospital, was a custodial
interrogation. R.18 at 11 n.1. The court also
assumed that Ms. Ouska was given Miranda warnings
when she surrendered to police on May 28, 1992.
See id. at n.2. The parties do not challenge
those assumptions on appeal.
/6 The district court denied Ms. Ouska’s request for
a certificate of appealability as to each of the
issues she raised. See R.22. If a district court
declines to issue a certificate, this court may
issue one. See 28 U.S.C. sec. 2253(c); Fed. R.
App. Pro. 22(b)(2).
/7 Some courts of appeals require that, in order to
expand the issues in a certificate, a party must
present explicitly the request by motion to the
court of appeals; others, as we have done, treat
a notice of appeal as an implicit request to
amend the certificate. See Jones v. United
States, 224 F.3d 1251, 1255 (11th Cir. 2000)
(collecting cases). These courts also seem not to
distinguish, as we have not, between cases where
a court of appeals considers expanding a district
court’s grant of a certificate and cases such as
this, where a court of appeals is asked to expand
a certificate that the circuit court itself has
granted. See, e.g., Valverde v. Stinson, 224 F.3d
129, 136 (2d Cir. 2000); Hiivala v. Wood, 195

-- 21 of 24 --

F.3d 1098, 1104 (9th Cir. 1999), cert. denied,
Hiivala v. Lambert, 529 U.S. 1009 (2000); Murray
v. United States, 145 F.3d 1249, 1250 (11th Cir.
1998).
/8 We also note that when Ms. Ouska made her initial
request to this court for a certificate, she did
so as a pro se plaintiff.
/9 The circuits are divided regarding the proper
answer to this issue. See, e.g., Combs v. Coyle,
205 F.3d 269, 282-83 (6th Cir.) (explaining the
circuit split), cert. denied, Bagley v. Combs,
121 S. Ct. 623 (2000). Most recently, the Sixth
Circuit joined this court, and the First and
Tenth Circuits, in holding that the use of a
defendant’s pre-arrest silence as substantive
evidence of guilt violates that defendant’s Fifth
Amendment rights. See id. at 283 (explaining that
"[i]n a prearrest setting as well as in a post-
arrest setting, it is clear that a potential
defendant’s comments . . . might be used in a
criminal prosecution; the privilege [against
self-incrimination] should thus apply").
/10 In Hernandez, the silence that was used against
the defendant involved his refusal to say
anything to police after being placed under
arrest, but before the Miranda warnings were read
to him. See 948 F.2d at 322. Therefore, unlike
Ms. Ouska’s situation here and the situation in
Savory, the alleged Fifth Amendment violation in
Hernandez did not involve pre-arrest silence.
However, we explained in Hernandez that the Fifth
Amendment violation at issue there was distinct
from the type of violation that Ms. Ouska now
claims with respect to the use of her post-arrest
silence. See 948 F.2d at 323 n.4. We noted that
the latter claim was addressed by the Supreme
Court’s decision in Doyle v. Ohio, 426 U.S. 610,
618 (1976), which barred the use of a defendant’s
silence after Miranda warnings were given,
explaining that it constituted a violation of the
Due Process Clause of the Fourteenth Amendment.
Because Ms. Ouska’s pre-arrest silence claim
involves the use of her silence before Miranda
warnings were given, it implicates our decision
in Savory regarding the privilege against self-
incrimination, not the rule of Doyle.
/11 In Davenport, the defendants were not placed
under arrest and were not in custody, but were
read their Miranda rights. See 929 F.2d at 1171.
/12 The opinion of the Appellate Court of Illinois
states that when first asked at the station about
the knife found under her bed, Ms. Ouska "said
she did not want to talk and left the station."
R.1, Ex.A at 5. The district court opinion
reiterates this fact. See R.18 at 3. Detective

-- 22 of 24 --

Shields, in his testimony, similarly confirms
that, when first asked a question about Te’s
murder, Ms. Ouska refused to answer any questions
about it and then left the police station. See
R.7-8 at 16C. For her part, Ms. Ouska also
testified that immediately upon being confronted
with the knife and asked about the murder, she
refused to answer any further inquiries and
requested her lawyer. See R.7-3 at D-170. She
then went on to state that Detective Shields
continued to question her for "[s]ix to seven
hours" more, before she was able to get a ride
home from the station. Id. at D-171. She was
asked no follow-up questions during her testimony
as to what, if anything, she said to the
detective during this additional questioning.
Ms. Ouska’s description of events appears to
conflict with the detective’s claim that Ms.
Ouska left the station right away after being
confronted with questions about Te’s death. Yet
regardless of this discrepancy as to how long Ms.
Ouska was questioned, neither she nor the
detective asserted that after being first
interrogated about the murder, Ms. Ouska did
anything but decline to answer any and all
questions related to it. Her reply brief clearly
states that "Ouska did not continue her
conversation with the detective after invoking
her Fifth Amendment right" and that she "did not
pick and cho[o]se questions she wished to answer
or attempt to convince the detective to terminate
the investigation." Appellant’s Reply Br. at 10.
As there is nothing in the record to contradict
this explanation, we accept it as true for
purposes of this opinion.
/13 Here, Ms. Ouska relies on the alleged ineffective
assistance of counsel as "cause" for her failure
to object. As we discuss in Section II.D of this
opinion, an allegation of ineffective assistance
of counsel is governed by the test set forth by
the Supreme Court in Strickland v. Washington,
466 U.S. 668 (1984). Under that test, an
individual must show: (1) that her counsel’s
performance was deficient, such that under the
circumstances, it was unreasonable under
prevailing professional norms; and (2) that she
was prejudiced by her counsel’s deficient
performance. See Strickland, 466 U.S. at 687-88.
We are aware of the continuing ambiguity as to
whether a finding of prejudice under Strickland
would be sufficient to establish prejudice for
the purposes of Wainwright v. Sykes’s cause and
prejudice analysis. See Fern v. Gramley, 99 F.3d
255, 259 n.4 (7th Cir. 1996); Freeman v. Lane,
962 F.2d 1252, 1259 n.5 (7th Cir. 1992). We need
not resolve this issue today because it is clear
that under any formulation of prejudice, Ms.
Ouska cannot prevail.

-- 23 of 24 --

/14 Ms. Ouska later testified that the lottery
printout did not belong to her.
/15 The Appellate Court of Illinois described this
medal of Saint Benedict as "uncommon." R.1, Ex.A
at 10. This conclusion appears to have been drawn
from the testimony of Rev. Charles Dahm, the
pastor of a nearby Catholic church where Te
attended Mass on most mornings. Father Dahm
described the medal as "not a common medal." R.7-
5 at A-190. Ms. Ouska disagrees with the
characterization of the medal as unique.
/16 In her testimony, Ms. Ouska claimed that she had
never seen the Saint Benedict medal or the green
pencil and that they were never in her possession
at any time.
/17 Our certificate of appealability limited Ms.
Ouska’s Strickland claim to the issue of whether
her trial counsel "was ineffective in failing to
object to the prosecution’s use of Ouska’s post-
arrest silence." Order of Dec. 21, 1999 (emphasis
added). However, even if Ms. Ouska’s request to
expand the certificate to include a claim
regarding the use of her pre-arrest silence, see
supra Section II.B, also constitutes an implicit
request that her ineffective assistance claim be
similarly broadened to account for the failure of
her trial counsel to object to the use of that
silence, we would not find reason to do so. Due
to the weight of the evidence supporting her
guilt, we do not think that Ms. Ouska can make a
substantial showing that her Sixth Amendment
rights were violated under Strickland’s standard,
even taking into account the failure to object to
the use of her pre-arrest silence. See 28 U.S.C.
sec. 2253(c)(2).

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