506 S.W.2d 887 (1974)
Dennis McBRIDE and Verle Byars, Appellants,
v.
The STATE of Texas, Appellee.
No. 47674.
Court of Criminal Appeals of Texas.
March 20, 1974.
Rehearing Denied April 3, 1974.
*888 Robinson & Wilson, Abilene, for appellants.
Ed Paynter, Dist. Atty., Patricia A. Elliott, Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION
DAVIS, Commissioner.
The appeals are from convictions for the offenses of conspiracy to commit theft. After the jury returned a verdict of guilty, punishment was assessed by the court at two years, probated. Appellants contend that the trial court erred in admitting into evidence, over objections, conversations between the arresting officers and one of the appellants. After reviewing the record, we agree.
The record reflects that appellants McBride and Byars worked for the Unitab Company in Abilene for a number of years. Both appellants submitted their resignations to Jack Williams (the President of Unitab) on May 30, 1972.
The State's theory throughout the entire case was that the appellants entered into a positive agreement between themselves to form a new company in Wichita, Kansas, whose operations were identical to Unitab. Byars is an accountant whose clients used Unitab for purposes of doing their data processing work.
Shortly after appellants' resignations, Byars' clients decided to take their business elsewhere. This was done on the advice of Byars. Thereafter, McBride's newly formed company in Wichita, Air Capital Computing, acquired these clients' business.
On July 15, 1972, McBride telephoned one Arnold Wagner, who was employed by Unitab as a computer operator. Wagner testified that during the phone call McBride asked him if he would do him a favor by reproducing the program decks in question; that McBride stated that he would pay him to do it; and that he should deliver them to Byars around noon on July 17th in the parking lot of Horne's Restaurant. On the following Monday (July 17), Wagner told Williams and Gafford, the Vice-President of Unitab, about McBride's call, after which they all went to the District Attorney's Office. From there, Gafford went back to Unitab and made copies of the programs in question. After Gafford had come back, Wagner went to Horne's parking lot, whereupon he found Byars waiting for him. Wagner then got into Byars' car, at which time Byars asked him if "he had brought the things with him." Wagner replied, "yes," went back to his car, and gave them to him. Byars then gave him $40.00 and stated that if he wanted more he could write a check. Wagner then gave a "prearranged secret signal" to police officers, who promptly arrested Byars.
*889 Sergeant Harold Emerson of the Abilene Police Department testified that he went to the District Attorney's Office with Texas Ranger Sid Merchant at approximately 11:40 a. m. on the day in question; that Gafford came to the officer with a box of IBM cards, which he gave to Wagner; that Wagner took the cards and went to Horne's Restaurant to meet Byars; that he and Merchant also went to the parking lot of Horne's Restaurant, whereupon they saw Byars sitting in his automobile; that they saw Wagner take the box of cards to Byars' car; and that after Wagner had given him the prearranged signal they both walked up to his car. Merchant then read appellant Byars his "rights."[1] Emerson then asked Byars what he was doing, to which he replied that he was "buying some IBM cards from this boy' and that he had given him $40.00 for the cards.[2] Byars was then taken to the police station.
Byars, testifying in his own behalf, stated that McBride asked him to pick up an Easy-Code AAACLM deck from Wagner at Horne's Restaurant on July 17; that he had no intention to steal the cards; and that there was never any conspiracy or positive agreement between him and McBride to steal anything from Williams. Upon cross-examination of Byars, the following was brought out in reference to his conversations with Merchant while under arrest and at the police station:
"Q. Okay, Do you recall telling him (Ranger Merchant) also that you had also obtained some accounts from Abilene Printing and Stationery?
"A. I don't know that I told him about that; no, sir.
"MR. WILSON: Your Honor, at this time, for the purpose of the record, we object to any questioning, or testimony along this line for the purposes of impeachment, or for any other purposes, for the reason that Mr. Byars was under arrest at the time and any statements made by Mr. Byars after that time while he was under arrest are required by law to be in writing and sworn to before they can become admissible into evidence, must adhere to the law that the statute requires. These have not met them, and for that reason, and that reason alone, we object to any testimony or questioning regarding this matter.
"THE COURT: All right. On that basis alone, I will overrule your objection.
"MR. WILSON: Note our exception.
"Q. Now, Mr. Byars, going back and just for purposes of refreshing us as to where we were, I believe you are now talking to Mr. Sid Merchant, a Texas ranger at the Abilene Police Department. We went over your stay of your previous employment with Unitab and your statement that you quit for personal reasons.
"Then, you were last being questioned with regard to whose cards were in that box. Do you recall that being brought up?
"A. No, sir, I do not.
"Q. Now, do you recall telling Mr. Merchant, at that time, that you, meaning Verle Byars, were entitled to the contents of that box and subject Williams, or Mr. Jack Williams *890 had refused to turn them over to you, and this is the reason that you had done this?
"A. NotI don't recall making that statement; no sir.
"Q. Well, do you deny making that statement to Mr. Sid Merchant?
"MR. ROBINSON: Now, Your Honor, again, we would like to impose objections here to this line of testimony and questioning on the basis that none of this is in writing. It is inadmissible for any purpose whatsoever.
"THE COURT: I overrule your objection.
"MR. ROBINSON: We further object on the basis that it is an attempt of impeachment, and no statements to the contrary are in evidence as to whether he admits or denies a statement. These statements are an improper attempt to impeach him.
"THE COURT: I overrule your objection."
After Byars had testified, the State then called Merchant to the stand. Merchant testified:
"A. Yes, sir, we went to an office of the Detective Division in the Police Department.
"Q. All right. Did you have a conversation with him at that time?
"A. Yes, sir.
"Q. Did you have any conversations with him relative to his employment?
"A. Yes, sir, he stated that he had
"MR. ROBINSON: Your Honor, we againexcuse me, Mr. Merchant. We object to any statement made by the Defendant. It certainly shows that he was under arrest at the time at the Police Station and same is not being in writing.
"MR. PAYNTER: Well, Your Honor, we offer them for purposes of showing the inconsistencies with the testimony here at trial and the statements made to Mr. Merchant at the time there at the Police Department.
"THE COURT: All right. I will overrule your objection.
". . .
"Q. Did he make any comments with regard to the cards that had been placed in this brown box and the Abilene Printing and Stationery Company account?
"A. He stated that those cards that some of them belonged to his customers and some of them belonged to Abilene Printing and Stationery Company and they needed those cards in their business.
"Q. Did he make any reference with regard to trying to recover those cards?
"MR. ROBINSON: Your Honor, again, we object to the question as to relating to a conversation had with this Defendant. The same is not on the basis of any impeachment of this Defendant; that the same purports to be a conversation had with an officer after he was under arrest. The same is not admissible for any purposes whatsoever as not being in writing after he is duly warned.
"THE COURT: I will overrule your objection.
"MR. ROBINSON: Note our exception.
"Q. Now, did he make any reference with regard to his attempting to recover these cards?
"A. Are you talking about previous to this?
"Q. Yes.
"A. Yes, sir. He said that he had contacted Mr. Williams on numerous *891 occasions trying to get these cards and other paroperty of their customers. He turned over some of and other property of their custurn these cards over to them.
"Q. Now, did you have any conversation with regard to Arnold Wagner with the Defendant, Byars?
"MR. ROBINSON: We object to any conversation had with this Defendant after he is under arrest on the basis that the same is not in writing.
"THE COURT: I will overrule your objection."
Merchant's testimony was used to contradict and impeach appellant and, in a sense, corroborate the State's theory of the case. All of appellant's objections to statements that he made under arrest, with the exception of one, were overruled. The testimony was a direct attack upon his testimony and was criminative, especially in light of the State's heavy reliance on circumstantial evidence to prove a conspiracy in this extremely complex case.
The statements in question, although not a confession in the strict sense, were nevertheless not in compliance with the requirements of Article 38.22, Vernon's Ann.C.C.P. The statements were oral, inculpatory, and were made in response to questions of the arresting officers. They did not lead to the fruits of the crime because the police had previously recovered the cards at the scene of arrest. Therefore, the statements were neither admissible as original evidence nor for impeachment purposes. See Hugley v. State, Tex. Cr.App., 505 S.W.2d 914 (1974); Martinez v. State, Tex.Cr.App., 498 S.W.2d 938; Butler v. State, Tex.Cr.App., 493 S.W.2d 190; Whiddon v. State, Tex.Cr.App., 492 S.W.2d 566; Harrison v. State, Tex.Cr. App., 491 S.W.2d 920.
While the error in question was in the admission of the statements against Byars, we cannot say beyond a reasonable doubt that the error was harmless as to McBride.
For the reasons stated, the judgments are reversed and the cause remanded.
Opinion approved by the court.
ROBERTS, Judge (dissenting).
I respectully dissent from the majority's holding. As the majority recognize, these statements did not amount to a confession, and, on that basis, I reassert my position as stated in the dissenting opinion in Butler v. State, 493 S.W.2d 190 (Tex.Cr.App. 1973).
ODOM, J., joins in this dissent.
NOTES
[1]  Exactly what rights were read to Byards do not appear from a reading of the record. However, Byars testified that Sergeant Emerson read warnings off of a card which he would, from watching television, say were his legal rights.
[2]  After Sergeant Emerson had testified that Byars had said "he had given him $40.00 for the cards" and that "he didn't know if he (Wagner) had authority to sell the cards," appellant's counsel objected on the basis that appellant was under arrest. However, no ruling on his objection was secured, as the witness was immediately passed to the defense.


923 F.2d 840
U.S.v.One Parcel of Real Property with Buildings, Appurtenances,and Improvements, known as 77 Walnut Street,Located in Brookline, Massachusetts,Rodriguez (Donna M.)
NO. 90-1729
United States Court of Appeals,First Circuit.
DEC 10, 1990

1
Appeal From:  D.Mass.

2
AFFIRMED.


             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                     AT JACKSON

                                 OCTOBER 1998 SESSION
                                                           FILED
                                                           December 3, 1998

                                                           Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
STATE OF TENNESSEE,                      )
                                         )   C.C.A. NO. 02C01-9802-CC-00046
             Appellee,                   )
                                         )   FAYETTE COUNTY
VS.                                      )
                                         )   HON. JON KERRY BLACKWOOD,
JAMES H. WALKER,                         )   JUDGE
                                         )
             Appellee.                   )   (Forgery Less Than Five-Hundred
                                             Hundred Dollars)

FOR THE APPELLANT:                           FOR THE APPELLEE:

C. MICHAEL ROBBINS                           JOHN KNOX WALKUP
46 North Third St., Suite 719                Attorney General & Reporter
Memphis, TN 38103
      (On Appeal)                            CLINTON J. MORGAN
                                             Counsel for the State
GARY ANTRICAN                                425 Fifth Ave. North
Public Defender                              Nashville, TN 37243-0493

RICKEY GRIGGS                                ELIZABETH RICE
Asst. District Public Defender               District Attorney General
P.O. Box 700
Somerville, TN 38068                         MARK DAVIDSON
       (At Trial)                                   and
                                             TRACEY BREWER
                                             Asst. District Attorney General
                                             302 Market St.
                                             Somerville, TN 38068

OPINION FILED:

AFFIRMED

JOHN H. PEAY,
Judge
                                      OPINION

              On December 2, 1997, the defendant was found guilty, by a jury, of forgery

in an amount less than five-hundred dollars ($500). The defendant was subsequently

sentenced to four years in the Tennessee Department of Correction as a Range II

multiple offender. In this appeal as of right, the defendant argues that the trial court erred

in overruling his motion for a new trial. The motion alleged that the trial court erred by

allowing certain exhibits into evidence and that the evidence at trial was insufficient to

establish his guilt beyond a reasonable doubt.

              After a review of the record and applicable law, we find no merit to the

defendant’s contentions. As such, we affirm the judgment of the court below.

              The defendant’s conviction stemmed from his involvement in an attempt to

cash a check belonging to Ambrose Mosby. Mr. Mosby noticed his checks were missing

in November of 1996 when he returned home after helping a woman pull her truck out

of a ditch. Mr. Mosby had not given anyone permission to use his checks and he was the

only authorized name on the account. On May 12, 1997, the defendant went into a bank

and later a grocery store in an attempt to cash a check belonging to Mr. Mosby. The

check was a personal check written in the amount of three-hundred dollars ($300) and

signed in the name of Ambrose Mosby. When a clerk at the grocery store became

suspicious of the defendant, she called the police and the defendant and his partner were

apprehended as they drove away from the store.

              The defendant first contends that the trial court erred in allowing into

evidence a check belonging to Mr. Mosby that was found in the wallet of the defendant’s

partner. In his appellate brief, the defendant argues that the State failed to lay a

foundation upon which this exhibit could be admitted into evidence because the

                                              2
authenticity of the physical evidence, i.e., the check, was not established. However, at

trial the defendant objected to the admissibility of this check on the grounds of unfair

prejudice and relevance.

              It is a well-established rule that “a defendant may not object to the

introduction of evidence on one ground, abandon this ground, and assert a new basis or

ground for the objection in this Court.” State v. Aucoin, 756 S.W.2d 705, 715 (Tenn.

Crim. App. 1988); see also State v. Banes, 874 S.W.2d 73, 82 (Tenn. Crim. App. 1993);

State v. Dobbins, 754 S.W.2d 637, 641 (Tenn. Crim. App. 1988). As such, this issue is

waived. See State v. Gregory, 862 S.W.2d 574, 578 (Tenn. Crim. App. 1993); Aucoin,

756 S.W.2d at 641.

              Absent waiver, this issue is still without merit. As a condition precedent to

the introduction of tangible evidence, a witness must be able to identify the evidence or

establish an unbroken chain of custody. State v. Goodman, 643 S.W.2d 375, 381 (Tenn.

Crim. App. 1982). While the State is not required to establish facts which exclude every

possibility of tampering, the circumstances established must reasonably assure the

identity of the evidence and its integrity. State v. Ferguson, 741 S.W.2d 125, 127 (Tenn.

Crim. App. 1987). This issue addresses itself to the sound discretion of the trial court,

and the court’s determination will not be disturbed in the absence of a clearly mistaken

exercise of such discretion. State v. Beech, 744 S.W.2d 585, 587 (Tenn. Crim. App.

1987).

              Tennessee Rule of Evidence 901(a) states that the “authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient

to the court to support a finding by the trier of fact that the matter in question is what its

proponent claims.” Proper authentication can be established by the testimony of a

witness with knowledge that a matter is what it is claimed to be. Tenn. R. Evid. 901(b)(1).

                                              3
In light of the foregoing, it is clear the check was properly authenticated before it was

admitted into evidence. Officer Maddox testified that he believed the check to be the

same check he found in the wallet of the defendant’s partner and then gave to Deputy

Wilson. Deputy Wilson then testified that the check was the same check taken from the

car and given to him by Officer Maddox. Deputy Wilson then testified that the check had

been in his possession from the moment Officer Maddox had given it to him until the

morning of trial when he initialed the back of the check and gave it to the State’s attorney.

Deputy Wilson then identified the initials on the back of the check as his own.

               In light of the foregoing, a chain of custody was clearly established and the

authentication of the check was sufficient to support a finding by the trier of fact that the

check introduced into evidence was the check found in the wallet of the defendant’s

partner on the day they were apprehended. As such, this issue is without merit.

               The defendant’s second contention is that the evidence is insufficient to

establish the defendant’s guilt beyond a reasonable doubt.

               A defendant challenging the sufficiency of the proof has the burden of

illustrating to this Court why the evidence is insufficient to support the verdict returned by

the trier of fact in his or her case. This Court will not disturb a verdict of guilt for lack of

sufficient evidence unless the facts contained in the record and any inferences which

may be drawn from the facts are insufficient, as a matter of law, for a rational trier of fact

to find the defendant guilty beyond a reasonable doubt. State v. Tuggle, 639 S.W.2d

913, 914 (Tenn. 1982).

               When an accused challenges the sufficiency of the convicting evidence, we

must review the evidence in the light most favorable to the prosecution in determining

whether “any rational trier of fact could have found the essential elements of the crime

                                               4
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). We do not

reweigh or re-evaluate the evidence and are required to afford the State the strongest

legitimate view of the proof contained in the record as well as all reasonable and

legitimate inferences which may be drawn therefrom. State v. Cabbage, 571 S.W.2d

832, 835 (Tenn. 1978).

                  In the case at bar, the defendant was positively identified by several

witnesses as the man who came into the bank and later the grocery store to cash a check

belonging to Ambrose Mosby. In addition, pictures taken by the bank’s security camera

showed the defendant inside the bank speaking with one of the bank tellers.

Furthermore, Officer Wilson testified that the defendant, after being arrested and given

his Miranda warnings, admitted that although he did not forge the check he did attempt

to pass it.1 In light of the foregoing, it is clear the defendant has not met his burden of

illustrating to this Court why the evidence is insufficient to support the jury’s verdict. In

viewing the evidence in the light most favorable to the prosecution, we find that a rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. As such, this issue is without merit.

                  In sum, we find that the trial court did not err by overruling the defendant’s

motion for a new trial. Accordingly, we affirm the judgment of the trial court.

                                                               ______________________________
                                                               JOHN H. PEAY, Judge

         1
            W e note tha t the defen dant wa s charg ed with for gery by pos sessin g a forge d instrum ent with
the intent to p ass su ch instrum ent rathe r than for th e actua l alterations o f such ins trume nt. See T.C.A . §
39-14-114(b)(1)(D).

                                                         5
CONCUR:

______________________________
DAVID G. HAYES, Judge

______________________________
L. T. LAFFERTY, Special Judge

                                 6


                             In the

United States Court of Appeals
              For the Seventh Circuit

No. 10-3524

D EBORAH S CHORSCH,
                                                 Plaintiff-Appellant,
                                 v.

R ELIANCE S TANDARD L IFE INSURANCE C O .,
an Illinois Corporation,
                                      Defendant-Appellee.

            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
         No. 1:09-cv-03740—Robert W. Gettleman, Judge.

   A RGUED S EPTEMBER 8, 2011—D ECIDED A UGUST 28, 2012

 Before M ANION, R OVNER, and T INDER, Circuit Judges.
  T INDER, Circuit Judge.   The Employee Retirement
Income Security Act of 1974 (ERISA) allows beneficiaries
of plans governed by the statute to bring civil actions
to recover benefits that are due to them. 29 U.S.C.
§ 1132(a)(1)(B). But in enacting ERISA, Congress also
mandated internal claim review procedures. 29 U.S.C.
§ 1133(2). Recognizing that Congress gave the primary
2                                             No. 10-3524

responsibility for processing claims to ERISA plans as
opposed to federal courts, we have held that district
courts have discretion to require the exhaustion of ad-
ministrative remedies as a precondition to such suits.
See Powell v. A.T. & T. Commc’ns, Inc., 938 F.2d 823, 826
(7th Cir. 1991). Yet there are exceptions that may excuse
a failure to exhaust. We consider here whether the
content of a termination notice, specifically the absence
of particular information, caused the beneficiary’s
failure to exhaust and whether the defendant is estopped
from taking advantage of that failure. The district court
found that the beneficiary offered no evidence of rea-
sonable reliance on the absent information and that
even if the notice was deficient, the alleged deficiencies
were not material. Finding no abuse of discretion,
we affirm.

                     I. Background
  Deborah Schorsch enrolled in September 1991 in a long-
term group disability insurance plan provided through
her employer United Conveyor Corporation. Reliance
Standard Life Insurance Company (“Reliance”) provided
coverage for the plan. According to the summary plan
description, United Conveyor was the plan sponsor and
administrator. Yet the terms of the policy issued by
Reliance governed the plan’s administration, and United
Conveyor delegated authority to determine eligibility
for benefits to Reliance as the claims administrator. The
policy did not give Reliance discretionary authority
to determine benefit eligibility or construe plan terms.
No. 10-3524                                               3

For unknown reasons, United Conveyor apparently
never provided Schorsch with the summary plan descrip-
tion or any document explaining that ERISA governed
the plan.
  On August 1, 1992, a car struck the passenger side of
the vehicle in which Schorsch was a passenger. Schorsch
suffered a contusion and spinal cord damage, which
caused her disability. Her symptoms include chronic
pain syndrome, restricted movement, incontinence, an
inability to concentrate, and fatigue. Schorsch also
suffers from the side effects of her pain medicine. United
Conveyor submitted a claim to Reliance for long-term
disability benefits on Schorsch’s behalf. Reliance ap-
proved the claim and Schorsch began receiving long-
term disability benefits on January 29, 1993. The plan
provides that for the first 60 months, “total disability”
meant that Schorsch could not perform the material
duties of her regular occupation. After 60 months, “total
disability” meant that Schorsch could not perform the
material duties of any occupation as reasonably allowed
by her education, training, or experience. On May 16,
1998, Reliance notified Schorsch that her condition
satisfied the more stringent definition of total disability.
Reliance told her she was eligible to receive disability
benefits until she reached the age of 65 on January 27,
2018, or until her condition no longer satisfied the defini-
tion of total disability.
 On May 19, 2006, at Reliance’s request, Schorsch under-
went an independent medical exam with Dr. Richard S.
Tuttle, who produced a five-page report finding her
4                                              No. 10-3524

capable of performing a full-time medium duty job. The
report listed as sources of information (1) Schorsch’s
account of her primary history, (2) various medical
records, and (3) “some surveillance transcripts from
March 2006.” The surveillance source appears to
reference a report from an investigation firm that
observed Schorsch’s home for three days in March 2006.
Based on the exam, Dr. Tuttle found “little objective
findings to support any significant restrictions or limita-
tions or any significant impairment.” But Dr. Tuttle also
mentioned in the next sentence that “surveillance” re-
vealed that Schorsch “appears to be working out of
her house, doing her childcare operation, and appears to
be actively employed at this point, regardless.” He
then stated that based on the exam, he saw “no
functional impairment” and “no significant limitations
or restrictions” and opined that Schorsch could resume
regular employment. Dr. Tuttle did not mention that
in March 2006 Reliance sent vocational rehabilitation
specialist Daniel Rauch to Schorsch’s home to inter-
view her. Rauch did not report observing a babysitting
service but recommended in his report that Reliance
should update Schorsch’s medical records and ask her
treating physician to comment on her ability to work.
  Reliance notified Schorsch by letter dated June 13,
2006, that it would terminate her disability benefits on
June 29, 2006, because based on her file’s medical infor-
mation, namely Dr. Tuttle’s exam, it determined she
could work full-time and thus was no longer totally
disabled. The letter stated that Reliance’s vocational
staff reviewed her “complete claim file” and determined
No. 10-3524                                               5

based on her medical condition and past training, educa-
tion, and experience that she qualified for a variety of
jobs. The notice repeated that the decision was made
“based on the information contained in your file and
the policy provisions applicable to your claim” and went
on to explain that:
   Our determination regarding whether you meet
   your group policy’s definition of disability is, and
   must be, based on the medical documentation
   in your claim file. We have no basis on which
   to measure subjective complaints or medical
   opinions that are not substantiated by the med-
   ical findings. We must determine if the medical
   information documents the presence of a physical
   or mental condition limiting your ability to per-
   form your own or regular occupation.
The notice did not mention the surveillance report, but
stated that Schorsch could “request a review of this
denial by writing to” Reliance’s address and that:
   The written request for review must be sent
   within 60 days of receipt of this letter and state
   the reasons why you feel the claim should not
   have been denied. Include any additional docu-
   mentation which you feel will support your
   claim. We will treat the submission of any addi-
   tional documentation as a request for review
   unless specifically otherwise instructed. You or
   your duly authorized representative is also
   entitled to review the pertinent documents upon
   which our determination was predicated.
6                                               No. 10-3524

  On August 3, 2006, only nine days before the 60-day
deadline expired on August 12, Schorsch’s counsel sent
Reliance a letter indicating that he represented:
    your insured, Deborah Schorsch, in connection
    with your revocation of disability payments to
    her under the captioned policy. We will ask that
    you review the revocation decision. However I
    am still waiting for certain documents and
    medical records for review before I can provide
    you with a detailed analysis of my client’s position
    at this time.
Counsel wrote that he hoped to have the materials he
needed “in the next few weeks and I should have a
more detailed analysis presented to you for your con-
sideration before the end of August.” He asked Reliance
to “please consider this notice of an intent to ask for
your reconsideration, which is an option indicated in
your June 13, 2006 letter.” But neither Schorsch nor her
attorney ever submitted a request for review.
  Reliance responded in a letter dated February 13,
2007, stating that although “Ms. Schorsch may have
intended to ask for a reconsideration, no such letter
of appeal was ever received by” Reliance “and the dead-
line for asking for an appeal has long since passed. As
such, our decision to terminate Ms. Schorsch’s claim is
final and she has no further avenues of administrative
appeal available to her under the terms of her Policy.”
Counsel responded on April 5, 2007, advising Reliance
that Illinois law, not ERISA, governed the policy, and
that Schorsch never received an ERISA plan. He said
No. 10-3524                                               7

that “[t]he delay in following up on my August 3, 2006
[letter] was due mostly to my trial schedule.” Counsel
wrote that the decision to terminate Schorsch’s benefits
breached the policy and that Schorsch would pursue
her remedies under Illinois law by suing unless “you
wish to reconsider receiving a different analysis,
please advise.”
   On May 22, 2009, Schorsch’s complaint for breach of
contract and vexatious and unreasonable denial of
benefits under Illinois insurance law was filed in Illinois
state court. Reliance removed the action to federal district
court and Schorsch filed an amended complaint seeking
to recover the same long-term disability benefits under
ERISA. See 29 U.S.C. § 1132(a)(1)(B). During discovery,
Reliance admitted that it had lost the administrative
record relating to Schorsch’s claim. Eventually Reliance
produced some “computer screens” but it never
found the documents it used in deciding to terminate
Schorsch’s benefits. In response to Schorsch’s interrogato-
ries, Reliance stated, “Dave Lembach, Vocational Rehab-
ilitation Specialist . . . conducted the vocational evalua-
tion referenced in” the June 13 letter. Yet in Lembach’s
deposition, he first testified that he did not make “any
decision as to whether she could perform a particular
occupation,” and later said he did not recall making the
evaluation referenced in Reliance’s interrogatory an-
swer. After discovery, the district court granted Reliance’s
motion for summary judgment on the ground
that Schorsch failed to exhaust her administrative reme-
dies. Schorsch v. Reliance Standard Life Ins. Co., No. 09 C
8                                                 No. 10-3524

3740, 2010 WL 3893914 (N.D. Ill. Sept. 29, 2010) (unpub-
lished opinion and order). Schorsch appealed.

                        II. Analysis
   We review the district court’s grant of summary judg-
ment de novo, viewing the evidence in the light most
favorable to Schorsch. See Fleming v. Livingston County,
Ill., 674 F.3d 874, 878 (7th Cir. 2012). We will affirm
if there is “no genuine dispute as to any material fact”
and Reliance is “entitled to judgment as a matter of
law.” See id.
  The parties dispute the district court’s exercise of discre-
tion in dismissing Schorsch’s claim for failure to exhaust
her administrative remedies. As the district court recog-
nized, Schorsch does not seriously contest the fact that
she failed to timely request a review. In fact, she never
requested a review. Instead, she argues that a series of
irregularities in Reliance’s process for terminating her
benefits denied her meaningful access to review and
that as a result, Reliance is estopped from benefitting
from her failure to exhaust. Accordingly, we consider
whether the district court abused its discretion in
requiring “exhaustion as a prerequisite to bringing suit.”
Edwards v. Briggs & Stratton Ret. Plan, 639 F.3d 355, 361 (7th
Cir. 2011) (quoting Salus v. GTE Directories Serv. Corp., 104
F.3d 131, 138 (7th Cir. 1997)). We will reverse only if the
district court’s decision is “obviously in error.” Id. (quoting
Salus, 104 F.3d at 138).
  Congress established the administrative claims resolu-
tion process to “reduce the number of frivolous law-
No. 10-3524                                                 9

suits under ERISA; to promote the consistent treatment
of claims for benefits; to provide a nonadversarial
method of claims settlement; and to minimize the cost of
claims settlement for all concerned.” Kross v. W. Elec. Co.,
701 F.2d 1238, 1244-45 (7th Cir. 1983) (quoting Amato v.
Bernard, 618 F.2d 559, 567 (9th Cir. 1980)). Although
ERISA does not require administrative exhaustion as
a prerequisite to suit, “we have interpreted ERISA as
requiring exhaustion of administrative remedies as a
prerequisite to bringing suit under the statute.” Edwards,
639 F.3d at 360. The exhaustion requirement gives force
to Congress’s intent in establishing the administrative
claims resolution process by serving the objectives
noted above. Id. at 360-61. That said, courts may excuse
a failure to exhaust administrative remedies “where
there is a lack of meaningful access to review proce-
dures, or where pursuing internal plan remedies would
be futile.” Id. at 361.
  Schorsch argues that Reliance should be estopped from
asserting her failure to exhaust as a defense. To invoke
estoppel, Schorsch must show, inter alia, that Reliance
knowingly misrepresented or concealed a material fact,
that she did not know the truth, and that she reasonably
relied on the misrepresentation or concealment to her
detriment. See, e.g., Loyola Univ. of Chi. v. Humana Ins. Co.,
996 F.2d 895, 902 (7th Cir. 1993). Schorsch cannot cir-
cumvent ERISA’s administrative remedies by simply
pointing to errors in Reliance’s claims termination pro-
cess. Flaws in Reliance’s termination notice and other
errors become relevant only if Schorsch reasonably
relied on them in failing to request a review of its decision
10                                                No. 10-3524

to terminate her disability benefits, see id., or if Reliance’s
missteps denied her meaningful access to a review, see
Edwards, 639 F.3d at 361. (She doesn’t allege that pursuing
a review would have been futile.)
  Schorsch’s first argument for reasonable and detri-
mental reliance is that Reliance’s June 13 letter misrepre-
sented that her “complete claim file” was “reviewed by
our vocational staff” and that it failed to disclose that
the “real basis” for terminating benefits was the surveil-
lance report claiming she ran a babysitting service. She
also suggests that the notice was deficient in failing to
disclose Rauch’s written report, which didn’t recom-
mend terminating benefits. But Reliance had a good
basis for its decision to terminate benefits, even if it
didn’t disclose every piece of information it relied on
to Schorsch.
  Reliance based its decision in part on Dr. Tuttle’s May 19,
2006, examination of Schorsch. Dr. Tuttle conducted a
thorough physical examination and documented his
observations and findings, including that Schorsch did
“not appear to be in any significant pain or distress.” He
wrote that she had “no significant objective findings,
really the only finding is related to subjective complaints
of pain” and “there are no significant pain behaviors
or sitting intolerance or any significant findings to any
significant pain condition or any significant spinal cord
injury.” Based on his exam, Dr. Tuttle found “little ob-
jective findings to support any significant restrictions
or limitations or any significant impairment.” He saw
“no functional impairment” and opined “with a rea-
No. 10-3524                                               11

sonable degree of medical certainty that Ms. Schorsch
can resume regular employment at a medium duty level
for an 9-hour day or 40 hour work-week.” To be sure,
Dr. Tuttle referred to the surveillance of March 2006,
but his report reveals that this was done to corroborate
his findings that she had no significant limitations or
restrictions. His opinion was based on his examination
of Schorsch. Thus, Schorsch’s suggestion that the sur-
veillance report was the only basis for Reliance’s ter-
mination decision is unsupported by the record.
  Schorsch points to several cases, e.g., Schneider v. Sentry
Group Long Term Disability Plan, 422 F.3d 621, 628 (7th
Cir. 2005), where we found that denial notices failed to
substantially comply with ERISA’s statutory and regula-
tory requirements. But they are of little assistance here
because the claimants in those cases exhausted their
administrative remedies. See id. at 625-26. These cases
suggest that Reliance’s termination notice may have
been less than perfect, but deficiencies in the notice
would not necessarily excuse Schorsch’s failure to
exhaust her administrative remedies. Nor does Robyns
v. Reliance Standard Life Ins. Co., 130 F.3d 1231 (7th Cir.
1997), assist Schorsch. There, the claimant alleged that
she was excused from the exhaustion requirement
because she was never informed of the internal admin-
istrative appeals process. Id. at 1236, 1238. Schorsch was
informed of her right to seek review.
  And Reliance provided Schorsch with adequate notice
of the reasons for its decision and the process for review.
Its letter informed Schorsch that it would terminate
12                                             No. 10-3524

her disability benefits based on the medical information
in her file, namely Dr. Tuttle’s exam, applicable policy
provisions, Reliance’s review of her complete claim
file, and its determination that she could work full-time
and was no longer totally disabled. The letter told her
that she could submit a “written request for review,”
stating “the reasons why you feel the claim should not
have been denied. Include any additional documenta-
tion which you feel will support your claim.” It also
notified her that she or her representative was “entitled
to review the pertinent documents upon which our de-
termination was predicated.” Thus, Reliance’s termina-
tion letter gave Schorsch a “reasonable opportunity” to
provide additional documentation to support her claim
and seek a review of its decision. See Aschermann v.
Aetna Life Ins. Co., No. 12-1230, 2012 WL 3090291, at *4-*6
(7th Cir. July 31, 2012). Nothing in Reliance’s notice
prevented Schorsch from requesting a review.
   Yet even assuming the worst about Reliance’s pro-
cess—as Schorsch claims, the company “basically lied in
its June 13, 2006 letter” that it performed a vocational
assessment and that Reliance actually based its decision
on the surveillance report as opposed to her medical
information — Schorsch fails to show how she reasonably
relied on those alleged misrepresentations. She claims
she would have immediately contested the decision
had she known the circumstances behind the vocational
assessment or that Dr. Tuttle thought she ran a baby-
sitting business from her home. But this after-the-fact
claim does not show that had she known these alleged
defects in Reliance’s review process, she would have
No. 10-3524                                             13

acted differently. Schorsch could have raised these
alleged defects in the administrative review process.
Indeed, the statutorily mandated administrative review
process best addresses such claims, which is one of the
reasons exhaustion is required. See Edwards, 639 F.3d
at 360. Schorsch obviously could not contest what she
did not know, but the termination notice gave her and
her counsel an opportunity to “review the pertinent
documents upon which” Reliance made its decision.
Because Schorsch failed to exercise that option, she
cannot now claim that had she known certain details,
material or otherwise, she would have requested review
of Reliance’s decision to terminate her benefits.
  Schorsch’s second argument is that Reliance’s stated 60-
day deadline to appeal was incorrect because the
2002 amendments to the regulations provide for 180 days
to appeal an adverse determination. See 29 C.F.R.
§ 2560.503-1(h)(3)(i). Reliance maintains that it relied on
the older regulations providing for 60 days because the
2002 regulations only apply to “claims filed under a
plan on or after January 1, 2002,” 29 C.F.R. § 2560.503-
1(o)(1), and Schorsch filed her original claim well
before then. We need not decide if the new regulations
apply to appeals made after 2002 regarding adverse
decisions of pre-2002 claims. Even if they do apply and
Reliance’s letter should have given Schorsch 180 days to
appeal, she has not shown how that would have made
any difference in her failure to file a request for a re-
view. Simply stated, Schorsch never requested review. The
same goes for her rather skeletal argument regarding
the inadequate notice of ERISA rights. Schorsch wholly
14                                                No. 10-3524

fails to explain how she could have reasonably relied on
the absence of information regarding her right to sue
under ERISA in failing to seek an administrative review.
  Schorsch also argues that Reliance’s loss or destruc-
tion of the administrative record was a misstep that
excuses her failure to seek review. But she has not
shown how Reliance benefitted from the loss or destruc-
tion of the administrative record. Nor has she shown
that she could have relied on that future occurrence
in failing to seek review years earlier. Reliance’s loss of
the administrative record is regrettable, but we cannot
see how it had any effect on Schorsch’s failure to seek
review years earlier.
  Similarly, the suggestion that Reliance’s failure to tell
Schorsch or her counsel that ERISA governed the policy
is also a non-starter. The plan administrator under
29 U.S.C. § 1002(16)(A) is the person designated by
the terms of the plan or the plan sponsor if the plan does
not designate an administrator. Here, the summary
plan description identifies United Conveyor as the plan
administrator. We have long refused to attribute an em-
ployer’s behavior to an insurer because the employer is
not the insurer’s agent. Sur v. Glidden-Durkee, a div. of S. C.
M. Corp., 681 F.2d 490, 493 (7th Cir. 1982) (refusing to
impute employer’s misrepresentations to insurer be-
cause an employer is not the insurer’s agent); Metro. Life
Ins. Co. v. Quilty, 92 F.2d 829, 832 (7th Cir. 1937) (noting
that “the employer does not act as agent for the in-
surer”). United Conveyor as the plan administrator had
the responsibility of providing Schorsch with a summary
No. 10-3524                                           15

plan description, 29 U.S.C. §§ 1021(a), 1022; see also
CIGNA Corp. v. Amara, ___ U.S. ___, 131 S. Ct. 1866, 1877
(2011) (“ERISA § 102(a) . . . obliges plan administrators
to furnish summary plan descriptions”), and we will not
impute its apparent and unfortunate failing to Reliance.
  Schorsch maintains that Reliance failed to establish
or follow reasonable claims procedures under 29 C.F.R.
§ 2560.503–1(l) and therefore she should “be deemed to
have exhausted the administrative remedies available
under the plan.” Id. Section 2560.503–1(l) applies “on
the basis that the plan has failed to provide a
reasonable claims procedure that would yield a decision
on the merits of the claim.” The Labor Department
has explained that the provision was intended to strip
judicial deference from decisions made in the absence
of minimal procedural protections. 65 Fed. Reg. 70246–01,
70255 (Nov. 21, 2000). “At a minimum, claimants denied
access to the statutory administrative review process
should be entitled to take that claim to a court” because
“[c]laimants should not be required to continue to
pursue claims through an administrative process that
does not comply with the law.” Id. at 70256. Section
2560.503–1(l) assumes claimants attempted to exhaust
their administrative remedies but the lack of a rea-
sonable claims procedure blocked “a decision on the
merits of the claim.” Schorsch, who never attempted to
exercise her opportunity to seek review, fails to show
how Reliance denied her access to its administrative
review process. Reliance’s termination notice told her
how and where she could request a review of its decision
and the allotted period in which she could “state the
16                                           No. 10-3524

reasons why you feel the claim should not have been
denied.” And Schorsch could have requested the docu-
mentation underlying Reliance’s decision.
  Finally, Schorsch argues that Reliance should not
be permitted to take advantage of the exhaustion
doctrine because it was intended to benefit a fiduciary
that conducts itself in full compliance with ERISA. We
do not condone Reliance’s missteps—particularly the
loss of the administrative record, the confusion over
who performed her vocational assessment, and the im-
pression it gave Schorsch that its decision was based
only on her medical records when in fact the surveil-
lance report suggesting she ran a babysitting service
influenced the decision by some measure. But Schorsch
cannot show how these problems caused her failure to
seek review of Reliance’s termination decision. The con-
gressionally mandated internal claims resolution process
is the first stop in ERISA’s scheme for addressing such
disputes. Schorsch never followed Reliance’s instruc-
tions for seeking review, and she does not show how she
reasonably relied on any misrepresentation or lack of
information in failing to exhaust her administrative
remedies. Thus, the district court did not abuse its dis-
cretion in requiring exhaustion.

                    III. Conclusion
 We A FFIRM the district court’s judgment.

                         8-28-12


Electronically Filed
Intermediate Court of Appeals
CAAP-13-0001558
13-NOV-2013
09:22 AM


  Regarding my case #02-15-00041-cv, I have been uable to find an attorney to file

  a motion to re-hear in this short notice. Since I did pay the $195, but just through

  the wrong place, would you please give me more time to have an attorney file

  this motion with the court? Thank you. Gail Sanders

       RECEIVED
   COURT OF APPEALS
SECOND DISTRICT OF TEXAS

    April 14, 2015
  DEBRA SPISAK, CLERK
                            ACCEPTED
                      02-15-000041-cv
            SECOND COURT OF APPEALS
                 FORT WORTH, TEXAS
                 4/14/2015 11:57:29 AM
                        DEBRA SPISAK
                                CLERK

      RECEIVED IN
 2nd COURT OF APPEALS
  FORT WORTH, TEXAS
04/14/2015 11:57:29 AM
      DEBRA SPISAK
         Clerk


723 N.E.2d 1206 (2000)
311 Ill. App.3d 624
243 Ill.Dec. 605
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Adolpho LEON, Defendant-Appellant.
No. 1-98-0376.
Appellate Court of Illinois, First District, Sixth Division.
January 14, 2000.
*1208 Cook County Public Defender, Chicago (James N. Perlman, of counsel), for Appellant.
Cook County State's Attorney, Chicago (Renee Goldfarb, William Toffenetti, Kathryn M. Morrissey, of counsel), for Appellee.
Justice SHEILA M. O'BRIEN delivered the opinion of the court:
A jury found defendant, Adolpho Leon, guilty of one count of possession of a controlled substance, one count of possession of a controlled substance with intent to deliver, and one count of possession of cannabis with intent to deliver. The trial court sentenced defendant to 15 years in prison. Defendant appeals, contending: (1) the trial court erred by denying his motion to suppress; and (2) his posttrial counsel provided ineffective assistance. We affirm.
At the hearing on the motion to suppress, Officer Manuel Godinez testified that on the morning of July 27, 1994, he and six or seven other police officers went to defendant's first-floor apartment to execute a search warrant. Officer Godinez knocked on the apartment door. A person inside the apartment responded, "Who is it?" Officer Godinez announced his office and told the person inside to open the door. The officers received no response, so they forced open the door and entered the apartment.
*1209 Officer Godinez testified that, upon entering the apartment, he saw defendant standing in a hallway and shortly thereafter he saw a young child seated on a sofa in the living room. Officer Godinez explained to defendant that they were executing a search warrant, and the officer asked defendant whether he had any narcotics or weapons in the apartment. Defendant then led Officer Godinez to the bathroom, where the officer recovered a quantity of cocaine. Officer Godinez next asked defendant, "Where is the gun at?" Defendant responded, "It's in the bedroom." Officer Godinez walked to the bedroom, where he saw defendant's wife, Marisol. Marisol was subsequently "taken" into the living room and seated with her child on the couch. Officer Godinez searched the bedroom closet and found a loaded, semi-automatic pistol. Officer Godinez placed defendant under arrest and read him his Miranda rights.
Officer Godinez testified that he searched defendant and discovered a set of keys in defendant's pants pocket. The smallest key was about half the size of the other keys and appeared to be for some sort of locked container. Officer Godinez was unable to find anything in the apartment that the key fit, so he approached Marisol in the living room, "fanned" the key ring, and asked her what the small key was for. Marisol responded that the key fit their storage locker downstairs. Marisol further told the officer that the storage locker contained clothes and she gave him permission to "go look" in the storage locker.
Officer Godinez testified that he went downstairs to the basement, where he saw a row of storage lockers. Officer Godinez eventually used the key to open locker number 10. Inside the locker was a yellow pail containing six brown, taped packages that Officer Godinez believed to be kilograms of cocaine. Officer Godinez also recovered four large plastic bags from the locker, all containing a "crushed green plant."
During Officer Godinez's testimony, the State showed him some photographs of the storage lockers taken by a fellow police officer about 10 minutes after the narcotics were recovered. In those photographs, the storage lockers appear undamaged. Officer Godinez testified that the photographs accurately depicted the condition of the storage lockers on July 27, 1994. Officer Godinez was also shown defense photographs of the storage lockers. In those photographs, the hinges on some of the lockers, including locker number 10, appeared to be damaged. Officer Godinez testified that those defense photographs did not accurately reflect the condition of the storage lockers on July 27, 1994.
Marisol Leon testified that at approximately 9 a.m. on July 27, 1994, she and her husband were awakened by the sound of a loud "bang" on the front door of their apartment. Defendant got up from bed and walked to the doorway of their bedroom. Suddenly, four or five police officers entered their bedroom, pushed defendant against a wall, and pointed guns at his head. The officers then took defendant out of the room.
Marisol testified that, a few moments later, she joined defendant and their son in the living room. While Marisol was sitting in the living room, she heard the officers searching their bedroom. After the police left, Marisol went downstairs and saw that the storage lockers there had been damaged. Marisol testified that at no time did a police officer show her a key or ask her if they could search the basement or storage locker.
At the end of the testimony on the motion to suppress, the trial court denied the motion, ruling that Marisol had voluntarily consented to the search of the storage locker.
At trial, Officer Godinez reiterated his testimony at the suppression hearing concerning his discovery of narcotics in defendant's apartment and in the storage locker. Officer Godinez also testified that after *1210 recovering the narcotics and cannabis from the storage locker, he returned upstairs. As the officer approached his sergeant, defendant told him, "She didn't even know that was down there."
Defendant testified at trial that at approximately 10 a.m. on July 27, 1994, he was in bed with his wife when he heard a loud noise. Defendant got out of bed and encountered police officers, who grabbed him and sat him in the living room. Shortly thereafter, his wife was brought into the living room with him.
Defendant testified that he remained in the living room the entire two-hour time period that the officers searched the apartment; he denied leading any police officer to find evidence. Several times during the search, Officer Godinez came into the living room and showed him things including money from the kitchen cabinet and cocaine he had found in the bathroom.
Defendant testified that Officer Godinez also showed him a yellow bucket. Defendant told the officer that he didn't know to whom it belonged. Defendant denied having any narcotics or contraband in his storage locker.
Richard Stopka, defendant's original defense attorney, testified that on July 27, 1994, he was asked to represent defendant. Stopka went to defendant's apartment building and inspected his first-floor apartment and the basement storage area. Stopka testified that several of the storage lockers appeared to have been broken into.
Both parties stipulated that the contraband recovered from defendant's apartment contained .55 grams of cocaine. The contraband recovered from the storage locker contained 1,425.9 grams of cannabis and 6,032.6 grams of cocaine.
The jury found defendant guilty of one count of possession of a controlled substance, one count of possession of a controlled substance with intent to deliver, and one count of possession of cannabis with intent to deliver. The trial court sentenced defendant to 15 years in prison. Defendant filed this timely appeal following the denial of his posttrial motion.
First, defendant argues the trial court erred in denying his motion to suppress because Officer Godinez failed to tell Marisol that she was under no obligation to answer his question about the key he had found in defendant's pocket. In support, defendant notes that Officer Godinez first searched the apartment and determined that the key did not fit any lock therein. Therefore, defendant contends that by the time Officer Godinez questioned Marisol about the key, the search of the apartment was completed and the officer's questioning of Marisol represented an intent to extend his search beyond the apartment, that is, beyond the scope of the search warrant. Defendant argues that in order to so extend the scope of the search, Officer Godinez was required to inform Marisol that the initial search was completed and that she was under no obligation to answer his question about the key or otherwise consent to another search.
Defendant cites no Illinois case law which supports his argument. However, defendant does cite a case that was pending in the Illinois Supreme Court at the time he filed his brief in this court, People v. Brownlee, No. 84739. Defendant anticipated that Brownlee would hold that the Illinois Constitution requires police officers to provide notification of the termination of the initial police action before seeking consent for a further search. Defendant argued that should the supreme court so hold, then Officer Godinez's failure to inform Marisol about the termination of his initial search necessitates that the drugs seized as a result of Marisol's uninformed consent must be suppressed.
On June 17, 1999, the supreme court issued its opinion in Brownlee. See People v. Brownlee, 186 Ill.2d 501, 239 Ill.Dec. 25, 713 N.E.2d 556 (1999). The supreme court did not address whether the Illinois Constitution requires notification of the termination of an initial police action before *1211 seeking consent for a further search. Accordingly, defendant's argument necessarily fails, as it is premised solely on an anticipated holding in Brownlee that never materialized and defendant cites no other additional Illinois authority.
Next, defendant argues that the trial court erred in denying his motion to suppress because Officer Godinez's questioning of Marisol constituted a "search [of her] mind for evidence of a crime without probable cause [and] without reasonable suspicion" and thus constituted an unreasonable search and seizure under the United States Constitution and Illinois Constitution. Since neither the facts nor the credibility of the witnesses is questioned, the issue of the constitutional reasonableness of the search is a legal one, which we consider de novo. People v. Foskey, 136 Ill.2d 66, 76, 143 Ill.Dec. 257, 554 N.E.2d 192 (1990).
First, we address defendant's argument under the United States Constitution. In support of his argument, defendant cites Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987). In Hicks, the police entered defendant's apartment to investigate a shooting. Hicks, 480 U.S. at 323, 107 S.Ct. at 1152, 94 L.Ed.2d at 353. One of the officers noted expensive stereo equipment that seemed out of place in the "squalid" apartment. Hicks, 480 U.S. at 323, 107 S.Ct. at 1152, 94 L.Ed.2d at 353. The officer moved the stereo equipment in order to record the serial numbers for further investigation. Hicks, 480 U.S. at 323, 107 S.Ct. at 1152, 94 L.Ed.2d at 353. That investigation revealed that some of the serial numbers matched those on stereo equipment taken in an armed robbery. Hicks, 480 U.S. at 323, 107 S.Ct. at 1152, 94 L.Ed.2d at 353. Officers then obtained a warrant to reenter defendant's apartment and seize the stolen property. Hicks, 480 U.S. at 323-24, 107 S.Ct. at 1152, 94 L.Ed.2d at 353. Defendant was subsequently indicted for the robbery. Hicks, 480 U.S. at 324, 107 S.Ct. at 1152, 94 L.Ed.2d at 353.
The trial court granted defendant's motion to suppress the evidence that had been seized. Hicks, 480 U.S. at 324, 107 S.Ct. at 1152, 94 L.Ed.2d at 353. On appeal, the United States Supreme Court held that the act of moving the stereo equipment constituted a search unrelated to the search for the shooter, victims, and weapons that was the lawful objective of the entry into the apartment. Hicks, 480 U.S. at 324-25, 107 S.Ct. at 1152, 94 L.Ed.2d at 353-54. The court further held that defendant's fourth amendment rights were violated because no probable cause or exigent circumstances existed to justify the search. Hicks, 480 U.S. at 325-29, 107 S.Ct. at 1153-55, 94 L.Ed.2d at 354-57.
In the present case, defendant contends that since the officers had completed their search of the apartment prior to questioning Marisol about the key, the State was required, pursuant to Hicks, to show probable cause to search for criminality connected to the key.
We reject defendant's arguments that the State was required to show that the officer had probable cause or an individualized suspicion prior to questioning Marisol about the key. In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), Justice Stewart stated in a section of the opinion which was joined by Justice Rehnquist:
"We adhere to the view that a person is `seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but `to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.' [Citation.] As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been *1212 no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification.
* * *
We conclude that a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 553-54, 100 S.Ct. at 1877, 64 L.Ed.2d at 509 (opinion of Stewart, J., joined by Rehnquist, J.).
Illinois courts have adopted the Mendenhall analysis. See People v. Murray, 137 Ill.2d 382, 388-90, 148 Ill.Dec. 7, 560 N.E.2d 309 (1990). Applying Mendenhall to the present case, we find, for the reasons that follow, that Officer Godinez's questioning of Marisol was not a seizure under the fourth amendment and thus did not require any particular or objective justification.
Factors to consider when determining whether a person was seized are: the threatening presence of several police officers; the display of weapons by an officer; physical touching; tone of voice indicating compliance with arrest might be compelled; and formal declaration of arrest or routine practices associated with arrest such as searching, booking, handcuffing, fingerprinting and photographing. See Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877, 64 L.Ed.2d at 509; People v. Myrick, 274 Ill.App.3d 983, 988, 209 Ill.Dec. 459, 651 N.E.2d 637 (1995). The test does not focus on any one action taken by the police but instead focuses on the totality of the circumstances that led to a coercive effect by the police. Myrick, 274 Ill.App.3d at 988, 209 Ill.Dec. 459, 651 N.E.2d 637.
Applying the foregoing factors to the case at bar, we note that although there were multiple officers searching the apartment, Officer Godinez was the only officer in the living room with Marisol at the time he questioned her. Officer Godinez did not display any weapons when talking with Marisol, nor did he touch her or make any formal declaration of arrest or routine practices associated with arrest. There was no testimony that his tone of voice when questioning her indicated compliance with arrest might be compelled.
During oral argument on this case, there was discussion about the officers' mode of entry into the apartment, i.e., their use of a sledgehammer to force open the door. Forced entry into a dwelling is a factor to consider when determining whether a seizure has occurred. However, it is not dispositive, especially where, as here, the officer clearly announces that his purpose in entering the apartment is pursuant to a search warrant (as opposed to an arrest warrant), and where other indicia of a seizure, such as the presence of weapons, touching, coercive tone of voice, or routine practices associated with arrest are missing.
Accordingly, the totality of the circumstances indicates that Officer Godinez's questioning of Marisol did not constitute a seizure; therefore, no particular or objective justifications were required under the fourth amendment prior to talking with her.
Next, we address defendant's argument that Officer Godinez's questioning of Marisol was a violation of article I, section 6, of the Illinois Constitution (hereinafter referred to as section 6). Section 6 provides:
"The people shall have the right to be secure in their persons, houses, papers, and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." Ill. Const. 1970, art. I, § 6.
Defendant contends Officer Godinez's questioning of Marisol violated section 6's privacy clause. In support, he cites In re May 1991 Will County Grand Jury, 152 Ill.2d 381, 178 Ill.Dec. 406, 604 N.E.2d 929 (1992). In In re May 1991 Will County *1213 Grand Jury, the issue before the supreme court was whether a grand jury could subpoena defendants to appear in a lineup and submit to fingerprinting and the taking of hair samples. Will County, 152 Ill.2d at 385-86, 178 Ill.Dec. 406, 604 N.E.2d 929. The court held that section 6 recognizes a "zone of personal privacy" that is stated broadly and without restrictions. Will County, 152 Ill.2d at 391, 178 Ill.Dec. 406, 604 N.E.2d 929. The court held that once a right to privacy is established, the court must determine whether a search and seizure is reasonable. Will County, 152 Ill.2d at 392, 178 Ill.Dec. 406, 604 N.E.2d 929. In establishing the reasonableness of a grand jury subpoena for physical evidence of a nonintrusive nature, the State must establish relevance and make a showing of "individualized suspicion." Will County, 152 Ill.2d at 393, 178 Ill.Dec. 406, 604 N.E.2d 929.
In the present case, defendant argues that section 6 provides a broad "zone of privacy" surrounding Marisol's thoughts concerning the key. Defendant contends that section 6 provides more expansive protections than its fourth amendment counterpart and, therefore, as in In re May 1991 Will County Grand Jury, the State was required to make a showing of relevance and individualized suspicion in order to justify the officer's questioning of her.
We disagree. In People v. Mitchell, 165 Ill.2d 211, 209 Ill.Dec. 41, 650 N.E.2d 1014 (1995), defendant filed a motion to quash and suppress, arguing that the officer's seizure of cocaine from his person went beyond the scope of a Terry patdown. Mitchell, 165 Ill.2d at 214, 209 Ill.Dec. 41, 650 N.E.2d 1014. On appeal to the supreme court, defendant argued that the officer's touching of his body fell within the personal privacy clause of section 6. Mitchell, 165 Ill.2d at 219, 209 Ill.Dec. 41, 650 N.E.2d 1014. Relying on Will County, defendant asserted that section 6 goes beyond federal constitutional guarantees with respect to the right of privacy. Mitchell, 165 Ill.2d at 219, 209 Ill.Dec. 41, 650 N.E.2d 1014.
Our supreme court held that an officer's conduct of a Terry stop had traditionally been tested against the bounds of section 6's search and seizure clause. Mitchell, 165 Ill.2d at 220, 209 Ill.Dec. 41, 650 N.E.2d 1014. Thus, the court held that, although the officer's conduct triggered right to privacy concerns generally, such conduct was more particularly a search and seizure issue. Mitchell, 165 Ill.2d at 220, 209 Ill.Dec. 41, 650 N.E.2d 1014. The court further held that there was "nothing * * * to support a divergence in [the] interpretation of our section 6 search and seizure clause from the federal fourth amendment interpretation." Mitchell, 165 Ill.2d at 219, 209 Ill.Dec. 41, 650 N.E.2d 1014.
Similar to Mitchell, Officer Godinez's questioning of Marisol falls within the traditional bounds of section 6's search and seizure clause as opposed to the right of privacy clause (see, e.g., People v. Lenius, 293 Ill.App.3d 519, 228 Ill.Dec. 7, 688 N.E.2d 705 (1997); People v. Carter, 288 Ill.App.3d 658, 224 Ill.Dec. 226, 681 N.E.2d 541 (1997)) and therefore we look to the United States Supreme Court's fourth amendment jurisprudence in determining the constitutionality of Officer Godinez's conduct. Accordingly, pursuant to the Supreme Court's Mendenhall analysis cited above, we hold that Officer Godinez's questioning of Marisol was not a seizure under section 6 such that particular or objective justifications were required prior to speaking with her.
Next, defendant argues that, taking as true Officer Godinez's testimony that Marisol consented to the search of the storage locker, such consent was not voluntarily given. Therefore, defendant contends the trial court erred in denying his motion to suppress.
The State bears the burden of showing by a preponderance of the evidence that a consent to search was voluntarily *1214 given. People v. Hernandez, 278 Ill.App.3d 545, 551, 215 Ill.Dec. 336, 663 N.E.2d 86 (1996). The determination of whether a consent is voluntary is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854, 862-63 (1973); Hernandez, 278 Ill.App.3d at 551, 215 Ill.Dec. 336, 663 N.E.2d 86. The reviewing court will not reverse the trial court's determination of the voluntariness of a consent unless it is clearly unreasonable. Hernandez, 278 Ill.App.3d at 551, 215 Ill.Dec. 336, 663 N.E.2d 86.
Defendant argues that Marisol's consent was not voluntary, citing the presence of several officers in the apartment who restricted her freedom of movement by placing her on the couch in the living room. However, we have held that the presence of several armed, uniformed officers, in and of itself, does not give rise to such intimidation as to override a person's free will or render her incapable of giving valid consent to search. See People v. Spriegel, 233 Ill.App.3d 490, 174 Ill.Dec. 645, 599 N.E.2d 191 (1992); People v. Denwiddie, 50 Ill.App.3d 184, 8 Ill.Dec. 592, 365 N.E.2d 978 (1977).
Defendant argues that Officer Godinez never told Marisol that defendant had withheld his consent to search the storage locker. However, there is no evidence that Officer Godinez ever asked defendant about the key and thus there is no evidence that defendant withheld consent. Further, Marisol had common authority over the storage locker, and therefore her consent was valid even against defendant's nonconsent. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).
Defendant argues that Officer Godinez never informed Marisol of her Miranda rights, nor did he inform her that she had the right to withhold consent. However, Miranda warnings need not be given to obtain a valid consent. Spriegel, 233 Ill.App.3d at 493, 174 Ill.Dec. 645, 599 N.E.2d 191. Further, ignorance of the right to refuse consent does not vitiate the voluntariness of the consent, but is merely one factor to consider when examining the totality of the circumstances. Spriegel, 233 Ill.App.3d at 493, 174 Ill.Dec. 645, 599 N.E.2d 191
Applying the totality of the circumstances test to the case at bar, we note that Officer Godinez testified that he first knocked on defendant's door and announced his office. When he received no response, the officers forced open the door and informed defendant that they were there to execute a search warrant. During the search, Officers escorted Marisol from the bedroom to the living room, where she sat on a couch with her son. The officers searched for about an hour and a half, finding drugs, a gun, and a quantity of money. Officer Godinez also found a key to some kind of container. He researched the apartment for another hour but was unable to find the container that the key fit. Officer Godinez then questioned Marisol alone in the living room; the other officers were away in the bedrooms. As discussed above, Officer Godinez did not display a weapon, touch her, handcuff her, or speak in a tone of voice indicating that her compliance was mandatory. Instead, he "fanned" the key and simply asked her where the key fit. The trial court determined that Officer Godinez's actions did not override Marisol's will so as to render her answer to his question involuntary. We cannot say the trial court's finding was clearly unreasonable, especially in light of Marisol's testimony that the cocaine found in the storage locker was not hers and defendant's statement to Officer Godinez that Marisol was unaware the storage locker contained cocaine. Such testimony indicates that she voluntarily consented to the search of the locker because she thought it merely contained everyday items and was unaware that it contained drugs.
*1215 People v. Casazza, 144 Ill.2d 414, 163 Ill.Dec. 497, 581 N.E.2d 651 (1991), People v. Haskell, 41 Ill.2d 25, 241 N.E.2d 430 (1968), People v. Kelly, 76 Ill.App.3d 80, 31 Ill.Dec. 537, 394 N.E.2d 739 (1979), and People v. Clark Memorial Home, 114 Ill. App.2d 249, 252 N.E.2d 546 (1969), cited by defendant, are inapposite and do not compel a different result. In Casazza, Kelly, and Clark, the courts held that consent to search was vitiated where it followed illegal conduct by the police officers. By contrast, in the present case, the officers committed no illegal conduct prior to Marisol's consent to search. In Haskell, defendant's wife consented to the seizure of defendant's gun. The court held that her consent was not voluntary, partly because the officers told her in no uncertain terms that she must turn over the gun to them. Haskell, 41 Ill.2d at 31-32, 241 N.E.2d 430. By contrast, in the present case, Officer Godinez did not use similarly coercive language when requesting Marisol's consent to search the storage locker. Accordingly, the trial court did not err in determining that Marisol's consent to search was voluntarily given.
Next, defendant argues that Marisol never gave her consent to search the storage locker, citing Marisol's testimony that no officer showed her a key or asked her for permission to search the basement or the locker. Defendant concedes that Officer Godinez's testimony is to the contrary, but he argues that Officer Godinez was not a credible witness. In support, defendant cites the conflict between Officer Godinez's testimony before the grand jury, where he stated that he searched storage locker number five, and his testimony at the suppression hearing and at trial, where he stated he searched storage locker number 10. Defendant also refers to a variance between two sets of photographs showing the condition of the basement storage lockers after the execution of the search warrant. The defense photographs showed that a number of the storage bins had been damaged and forcibly opened. The State's photographs showed the lockers to be intact. Defendant claims the variance in the photographs renders unbelievable Officer Godinez's testimony that the officers entered only the one storage locker belonging to defendant; defendant contends that the officers instead forced their way into multiple storage lockers.
The trial court is in the best position to judge the witnesses' credibility and resolve any conflicts in the evidence. People v. Kozlowski, 278 Ill.App.3d 40, 44-45, 215 Ill.Dec. 4, 662 N.E.2d 630 (1996). The reviewing court will not substitute its judgment on these matters for that of the trial court unless it finds the court's ruling to be manifestly erroneous. Kozlowski, 278 Ill.App.3d at 45, 215 Ill.Dec. 4, 662 N.E.2d 630.
In the present case, the trial court was not manifestly erroneous in resolving the issues of credibility in favor of the State. Officer Godinez explained during his testimony at the hearing on the motion to suppress that he had inadvertently stated before the grand jury that he searched storage locker number five; he corrected himself at the hearing on the motion to suppress and stated unequivocally that he searched storage locker number 10.
As for the dissimilar photographs, the State photographs were taken immediately after the search, whereas the defense photographs were taken a few hours after the search. Thus, the defense photographs do not necessarily contradict Officer Godinez's testimony that he searched only defendant's locker and did not force entry into the other lockers; the defense photographs plausibly show damage to the lockers caused by persons other than the officers.
Defendant points to testimony from one of the residents of defendant's apartment building, Brett Searles, who testified that on the day of defendant's arrest, he heard noises coming from the basement that sounded like the lockers were being broken into. However, there was an approximate one-hour lapse between the time the *1216 officers left and the time Searles went downstairs and discovered that several of the lockers had been damaged. Thus, there was time for someone other than the officers to have damaged the lockers prior to Searles' discovery of them.
Defendant also points to the testimony of Officer Thomas Bobal, who testified he responded to a report of a break-in at the basement of defendant's apartment building at approximately 11:30 a.m. on July 28, 1994, the day after the execution of the search warrant on defendant's apartment. Officer Bobal testified he observed damage to multiple storage lockers. Again, Officer Bobal's testimony is not necessarily at odds with Officer Godinez's testimony that he entered only one locker; the damaged lockers viewed by Officer Bobal could have been broken into by persons other than Officer Godinez.
Defendant contends Officer Godinez's testimony that Marisol consented to the search of the storage locker is "absurd" and inherently unbelievable. We disagree. As discussed above, Marisol testified that the drugs in the storage locker did not belong to her; Officer Godinez testified defendant told him that Marisol knew nothing about the drugs in the storage locker. The trial court could conclude from such testimony that Marisol consented to the search of the storage locker because she thought that there was nothing incriminating to be found therein.
Defendant also argues that there are other reasons to doubt Officer Godinez's credibility. In particular, defendant points out that none of the police reports written by Officer Godinez indicated the number of the storage locker from which the drugs were recovered. Defendant also contends defendant's key to the storage locker was never inventoried; the implication in defendant's argument is that Officer Godinez never showed Marisol any key, but instead broke into all the storage lockers until he found the drugs. However, according to our review of the record, Officer Godinez testified that he did in fact inventory the key. Further, Officer Godinez was shown People's exhibit number 8, which he identified as the key in question. Thus, contrary to defendant's argument, Officer Godinez's testimony was not called into doubt by the absence of the key to the storage locker; rather, the key was inventoried and exhibited at trial.
In conclusion, the trial court heard the testimony, saw the witnesses, and judged Officer Godinez to be a credible witness. The trial court's finding is not manifestly erroneous, and therefore we will not substitute our judgment for its credibility determination. See Kozlowski, 278 Ill. App.3d at 45, 215 Ill.Dec. 4, 662 N.E.2d 630. Accordingly, we affirm the trial court's denial of defendant's motion to suppress.
Next, defendant argues his posttrial counsel was ineffective. To establish a claim of ineffective assistance, defendant must show that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance prejudiced defendant. People v. Albanese, 104 Ill.2d 504, 525, 85 Ill.Dec. 441, 473 N.E.2d 1246 (1984).
Defendant's posttrial counsel argued that defendant was unfit for trial because at the time of trial he was taking psychotropic medication. The trial court ordered a fitness evaluation of defendant and ultimately concluded that defendant had been fit at trial. Defendant argues that his posttrial counsel was ineffective for not also arguing that defendant was taking psychotropic drugs during the motion to suppress evidence and therefore that defendant was not fit during the hearing on the motion.
We disagree. The due process requirement that a defendant be fit before being made to stand trial properly focuses on the date on which his trial commences, not the period or proceedings prior to it. People v. Murphy, 160 Ill.App.3d 781, 794, 112 Ill.Dec. 295, 513 N.E.2d 904 (1987). Further, the legislature has stated that, even after a finding of unfitness, "the court *1217 may hear and rule on any pretrial motion or motions if the defendant's presence is not essential to a fair determination of the issues." 725 ILCS 5/104-11(d) (West 1996).
The suppression motion concerned whether the police obtained Marisol's consent prior to searching the storage locker. Defendant did not testify at the hearing, relying instead on the testimony of his wife to support the motion. There was no evidence presented that defendant's presence was necessary for the proper determination of the consent issue; therefore, his fitness or lack thereof was not relevant to the trial court's ruling on the motion to suppress. Accordingly, posttrial counsel was not ineffective for failing to raise the issue of defendant's fitness during the motion to suppress, as that issue had no bearing on the ultimate resolution of the motion.
Finally, defendant argues his posttrial counsel was ineffective for failing to argue that defendant's general mental state established a bona fide doubt of fitness during the suppression hearing and trial, independent of whether he was using psychotropic drugs at the time. We disagree. Posttrial counsel made the decision to pursue what he thought was the strongest issue for defendant, that defendant was unfit for trial based on his ingestion of psychotropic medication. We cannot say that counsel's decision was objectively unreasonable or that defendant was prejudiced thereby. Accordingly, we reject defendant's argument that posttrial counsel rendered ineffective assistance.
For the foregoing reasons, we affirm the trial court. As part of our judgment, we grant the State's request and assess defendant $150 for the costs of this appeal.
Affirmed.
ZWICK, P.J., and BUCKLEY, J., concur.


           Case: 11-14609   Date Filed: 07/10/2013   Page: 1 of 10

                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 11-14609
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 5:08-cv-00299-RS-GRJ

WILLIAM FLOYD GAY,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                              (July 10, 2013)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
                Case: 11-14609     Date Filed: 07/10/2013   Page: 2 of 10

         We grant the state’s motion for clarification, vacate our prior opinion

reported at Gay v. Sec’y, Fla. Dep’t of Corr., 11th Cir. 2013, __ F.3d __, (No. 11-

14609, May 29, 2013) (per curiam), and substitute the following opinion in its

place:

         William Gay, a Florida state prisoner serving a total sentence of 30 years’

imprisonment for aggravated battery, appeals the district court’s denial of his

petition for habeas corpus, pursuant to 28 U.S.C. § 2254. Gay argued during

closing arguments that he did not batter Sheila Finch, but that she had instead

sustained her injuries after she tripped and fell over an oak tree’s roots. In

response to Gay’s argument, the prosecutor argued that nobody testified that Finch

tripped and fell on the oak tree’s roots, and that “not one scintilla” of evidence

supported Gay’s version of events.

         Gay first challenged the prosecutor’s closing arguments as improperly

shifting the burden of proof to Gay in a “motion for rehearing and/or in the

alternative petition for a writ of habeas corpus” with the Florida District Court of

Appeal, after it summarily affirmed the trial court’s denial of his second motion to

vacate under Florida Rule of Criminal Procedure 3.850. The Florida District Court

of Appeal summarily denied Gay’s motion. Gay also raised this same claim in his

subsequent third Rule 3.850 motion, which the trial court summarily denied. The

Florida District Court of Appeal thereafter summarily affirmed on appeal. Gay

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then filed the instant habeas petition with the district court, arguing that the

prosecutor’s closing arguments improperly shifted the burden of proof to Gay. The

district court denied Gay’s claim as procedurally defaulted.

      On appeal, Gay argues that his claim is not procedurally defaulted because

an adequate state procedural basis did not support the state court’s denial of his

claim. Alternatively, he argues that either cause and prejudice or a fundamental

miscarriage of justice excused his procedural default. Gay further argues that the

prosecutor violated Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 1233

(1965), by improperly commenting on his failure to testify in support of his theory

of defense.

      We review de novo a district court’s denial of a habeas petition. McNair v.

Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). Whether a claim is subject to

procedural default is a mixed question of fact and law that we also review de novo.

Doorbal v. Dep’t of Corr., 572 F.3d 1222, 1227 (11th Cir. 2009).

      Where a state adjudicates a habeas petitioner’s claims on the merits, our

review is “highly deferential.” Williams v. Allen, 598 F.3d 778, 787 (11th Cir.

2010) (internal quotation marks omitted). Under such circumstances, a federal

court may only grant habeas relief if the state court’s merits adjudication:

“(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

                                           3
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Court of the United States; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). The petitioner bears the burden of

establishing his right to habeas relief and proving all of the facts necessary to

demonstrate a constitutional violation. Romine v. Head, 253 F.3d 1349, 1357 (11th

Cir. 2001).

      A state-court decision is contrary to federal law if the court arrives at a

conclusion opposite to that reached by the United States Supreme Court on a

question of law, or if the state court decides a case differently than the Supreme

Court has on a materially indistinguishable set of facts. Dingle v. Sec’y for Dep’t

of Corr., 480 F.3d 1092, 1098 (11th Cir. 2007). Likewise, a state-court decision is

an unreasonable application of federal law where the state court identifies the

correct governing legal principle, but unreasonably applies that principle to the

facts of the case before it. See Ventura v. Att’y Gen., Fla., 419 F.3d 1269, 1286

(11th Cir. 2005). Ultimately, a state court’s merits determination precludes federal

habeas relief where fairminded jurists could disagree on whether the state court

correctly decided the claim. See Lawrence v. Sec’y, Fla. Dep’t of Corr., 700 F.3d

464, 476 (11th Cir. 2012), cert. denied, 133 S. Ct. 1807 (2013).

      An “adjudication on the merits” is any state-court decision that does not rest

solely upon a state procedural bar, including summary dispositions. See Loggins v.

                                           4
              Case: 11-14609     Date Filed: 07/10/2013    Page: 5 of 10

Thomas, 654 F.3d 1204, 1217 (11th Cir. 2011). The Supreme Court has held that

when a federal claim is presented to a state court, federal courts may presume that

the state court adjudicated the petitioner’s claim on the merits absent any

indication or state-law procedural principles to the contrary. See Harrington v.

Richter, 131 S. Ct. 770, 784–85 (2011). This “presumption may be overcome

when there is reason to think some other explanation for the state court’s decision

is more likely.” Id. at 785. We have subsequently held that we will presume that

the state court adjudicated the petitioner’s claim on the merits unless the state court

clearly stated that its decision was based solely upon a state procedural rule. See

Loggins, 654 F.3d at 1217.

      A federal court, however, will not review questions of federal law that are

presented in a habeas petition where the state court rested its decision upon a

state-law ground that is both independent of the federal question and adequate to

support the judgment. Doorbal, 572 F.3d at 1227. We apply a three-part test to

determine whether a state-court judgment rested upon an independent and adequate

state-law ground: (1) the last state court rendering judgment must have clearly and

expressly stated that it was relying upon state procedural rules to resolve the

federal claim without reaching the merits; (2) “the state court’s decision must rest

solidly on state law grounds, and may not be intertwined with an interpretation of

federal law”; and (3) “the state procedural rule must be adequate.” Id. (internal

                                           5
              Case: 11-14609    Date Filed: 07/10/2013    Page: 6 of 10

quotation marks omitted). In order to constitute an adequate state-law ground, the

state procedural rule must be “firmly established and regularly followed.” Payne

v. Allen, 539 F.3d 1297, 1313 (11th Cir. 2008) (internal quotation marks omitted).

Nonetheless, a petitioner’s procedural default may be excused if he demonstrates

cause for his default and “actual prejudice from the alleged constitutional

violation.” Ward v. Hall, 592 F.3d 1144, 1157 (11th Cir. 2010). His procedural

default may also be excused if he demonstrates a fundamental miscarriage of

justice. See Schlup v. Delo, 513 U.S. 298, 314–15, 326–27, 115 S. Ct. 851, 860–

61, 867 (1995).

      The Fifth Amendment guards a criminal defendant’s right against

self-incrimination, and to this end, a prosecutor may not comment on the

defendant’s failure to testify. Griffin, 380 U.S. at 615, 85 S. Ct. at 1233. A

defendant’s rights are violated where the prosecutor’s statement was either

“manifestly intended to be a comment on the defendant’s failure to testify,” or “of

such a character that a jury would naturally and necessarily take it to be a comment

on” the defendant’s silence. Isaacs v. Head, 300 F.3d 1232, 1270 (11th Cir. 2002)

(internal quotation marks omitted). We have strictly enforced the defendant’s

burden to make such a showing, and the inquiry is not simply whether a jury

possibly or even probably would view the statement in such a manner. Id. Rather,

we must determine only “whether the jury necessarily would have done so.” See

                                          6
              Case: 11-14609    Date Filed: 07/10/2013    Page: 7 of 10

id. (internal quotation marks omitted). In applying this test, we look to the context

in which the prosecutor made the challenged statement in order to determine the

manifest intention that prompted it, as well as the natural and necessary impact that

it might have upon the jury. Solomon v. Kemp, 735 F.2d 395, 401 (11th Cir. 1984).

A comment on the failure of the defense, as opposed to the defendant’s failure to

testify, to counter or explain the testimony presented or evidence introduced does

not impinge upon a defendant’s privilege against self-incrimination. Duncan v.

Stynchcombe, 704 F.2d 1213, 1215–16 (11th Cir. 1983) (per curiam).

      Griffin errors are subject to harmless error review. See Chapman v.

California, 386 U.S. 18, 24–26, 87 S. Ct. 824, 828–29 (1967) (applying harmless

error review to the defendants’ Griffin claim). While a federal constitutional error

may be considered harmless on direct review if the reviewing court can determine

that it was harmless beyond a reasonable doubt, see Mansfield v. Sec’y, Dep’t of

Corr., 679 F.3d 1301, 1307 (11th Cir. 2012), cert. denied, 133 S. Ct. 861 (2013), a

federal constitutional error is considered harmless on collateral review unless there

is “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710,

1722 (1993) (internal quotation marks omitted). “Actual prejudice” requires that

the error have had a “substantial and injurious effect or influence” upon the

verdict. Id. (internal quotation marks omitted). Under this standard, an error is not

harmless where one is left in grave doubt as to whether the error substantially and

                                          7
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injuriously affected or influenced the verdict. See O’Neal v. McAninch, 513 U.S.

432, 437–38, 115 S. Ct. 992, 995 (1995).

      Here, as an initial matter, although the state argues that Gay’s federal habeas

petition was untimely, we need not decide that issue, which the district court did

not reach. Next, because no state court clearly and expressly stated that it decided

Gay’s Griffin claims solely upon a state procedural rule, it is not clear whether

Gay’s claims are procedurally defaulted. Even assuming arguendo, however, that

Gay’s Griffin claims are not procedurally defaulted, we conclude that they are

meritless. Gay argues that the state improperly commented upon his failure to

testify by arguing that: (1) the jury should base its verdict upon the credible

evidence that it heard from the witness stand; (2) nobody testified that Finch

tripped on the oak tree roots; (3) “not one scintilla” of evidence supported the

theory that Finch tripped on the oak tree roots; and (4) the jury should base its

verdict on the witness testimony and evidentiary exhibits. Gay claims that these

comments are fairly susceptible to being taken as comments on his failure to

testify, inasmuch as only Gay could provide testimony contradicting Finch’s

factual account. He further argues that a jury would naturally understand the

state’s closing arguments as a comment on his failure to testify. Finally, Gay

contends that the state’s closing arguments prejudiced him because any statement

                                           8
              Case: 11-14609      Date Filed: 07/10/2013   Page: 9 of 10

that is reasonably susceptible to being interpreted as a comment on the defendant’s

silence creates a high risk of error.

      In this case, the prosecutor’s challenged statements were more likely

comments on the failure of Gay’s defense to explain or counter evidence of his

guilt, rather than statements that were manifestly intended to comment on his

failure to testify or that were naturally and necessarily interpreted as such.

Accordingly, a jury would not have necessarily interpreted the state’s arguments as

improper comments on Gay’s failure to testify, but could have plausibly taken

them as comments on the quality of the evidence that Gay in fact presented. The

prosecutor’s closing arguments did not violate Griffin. See Isaacs, 300 F.3d at

1270–71; Duncan, 704 F.2d at 1215–16.

      Even assuming Griffin errors, the trial court’s jury instructions rendered

them harmless. The trial court instructed the jury regarding the state’s burden of

proof on multiple occasions, advising the jury that the state had to prove Gay’s

guilt beyond a reasonable doubt. Conversely, it instructed the jury that Gay

enjoyed a presumption of innocence that remained with him unless the state bore

its burden to prove his guilt, and that Gay held no burden to prove his innocence,

present evidence, or otherwise prove or disprove anything. Finally, the trial court

instructed the jury that Gay had the fundamental right not to testify, and that the

jury could not hold Gay’s decision not to testify against him in any manner. These

                                           9
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instructions cured any prejudice that may have resulted from the prosecutor’s

closing arguments. As a result, Gay cannot demonstrate that any Griffin error

substantially and injuriously affected or influenced the jury’s verdict. See O’Neal,

513 U.S. at 437–38, 115 S. Ct. at 995; Brecht, 507 U.S. at 637–38, 113 S. Ct. at

1721–22.

      For the foregoing reasons, the state court’s denials of Gay’s Griffin claims

were not contrary to, and did not constitute an unreasonable application of Griffin.

Accordingly, we affirm.

      AFFIRMED.

                                         10