Oscar Thomas v. Marc Clements , 789 F.3d 760 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2539
OSCAR C. THOMAS,
Petitioner-Appellant,
v.
MARC CLEMENTS,
Respondent-Appellee.
___________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 12-cv-1024 — William E. Callahan,Jr. Magistrate Judge.
____________________
ARGUED JANUARY 6, 2015 — DECIDED JUNE 16, 2015
____________________
Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.
WILLIAMS, Circuit Judge. Joyce Oliver-Thomas passed
away sometime in the early morning of December 27, 2006.
Her ex-husband and roommate Oscar Thomas was convict-
ed of intentionally committing her murder (as well as first-
degree sexual assault and false imprisonment). During the
2 No. 14-2539
trial, the state’s forensic pathologist testified that the autopsy
findings were consistent with the application of intentional
pressure to Oliver-Thomas’s neck, resulting in manual
strangulation and her death. Thomas argues that his trial
counsel was ineffective for failing to consider and consult
with an expert to review the pathologist’s report and per-
haps testify consistently with the defense’s theory of the
case, namely that Thomas unintentionally caused Oliver-
Thomas’s death by putting pressure on her neck for too long
during sex. To show he received ineffective assistance,
Thomas must demonstrate his counsel’s performance was
deficient and resulted in prejudice. Since the last reasoned
opinion from the state courts did not address the perfor-
mance analysis and applied the wrong standard to the prej-
udice analysis, we review Thomas’s claim de novo. We agree
with Thomas that a reasonable counsel would have consider
and/or consulted with a forensic expert, especially when the
state’s expert testified there was no evidence of external
bruising on Oliver-Thomas’s neck but that the expert was
still sure that this was intentional strangulation. Given the
weakness of the state’s case, especially as it relates to Thom-
as’s intent, had counsel reached out to a forensic pathologist,
or another expert similar to the habeas expert, and the expert
testified, there is a reasonable probability the outcome of the
trial would have turned out differently. Defendant’s expert
testimony would have highlighted the shortcomings in the
medical evidence—the lack of external bruises on Oliver-
Thomas’s neck and lack of any signs of a struggle on either
Thomas or Oliver-Thomas—and provided an expert, medi-
cal basis upon which the jury could have found reasonable
doubt. Therefore we reverse the district court’s denial of
No. 14-2539 3
Thomas’s petition and remand for proceedings consistent
with this opinion.
I. BACKGROUND
A. Facts Surrounding Oliver-Thomas’s Death
Thomas and Oliver-Thomas were married in 1990, had
two children together, and divorced in 1999. Even after the
divorce, Oliver-Thomas let Thomas live in her apartment,
lent him money and helped him in other ways. The two
would also occasionally have sex. They also fought, and
there was testimony Oliver-Thomas threatened to kick
Thomas out numerous times, including on December 26,
2006, but she never actually forced him out of the apartment.
Around 2 a.m. on December 27, 2006, Erica Cruz, the
neighbor who lived directly below Oliver-Thomas woke to
the sound of screaming. Cruz said she heard noises for about
an hour. She testified that the noises included a woman
screaming “Stop, stop, I love you. I love you” about three
times, someone choking, and kicks and thumps on the ceil-
ing. There was then ten minutes of silence, and then the
sound of moving furniture, which she told police officers
sounded like someone dragging a body a few feet. She then
saw two men, including Thomas, leave the building. Cruz
later heard someone go into Oliver-Thomas’s apartment,
walk around and say “oh my god move,” either once (as tes-
tified at trial) or several times (as Cruz told police in state-
ments).
Police received a call from Thomas at 3:24 a.m. saying Ol-
iver-Thomas was unconscious. An officer arrived on the sce-
ne within minutes and found Oliver-Thomas unresponsive
4 No. 14-2539
with her eyes open and without any pulse. She was pro-
nounced dead in the hospital at 4:19 a.m.
While officers were tending to Oliver-Thomas, Thomas
told two officers that he came back to the apartment and
found Oliver-Thomas grabbing her neck in a choking man-
ner before he called the police. Thomas then wrote a state-
ment in which his story differed somewhat, and he said he
discovered her unresponsive on the floor. A few hours later,
Thomas voluntarily went to the police station to give anoth-
er, more detailed written statement. He said around mid-
night he left the basement and went upstairs to Oliver-
Thomas’s apartment and began watching a pornographic
movie. He went into the bedroom and he and Oliver-
Thomas had sex, during which they fell off the bed and con-
tinued to have sex. Thomas left the apartment complex to get
a cigarette. When Thomas returned, he found Oliver-
Thomas on the floor.
After learning of the autopsy results—which we discuss
in more detail later—the police confronted Thomas later that
afternoon. He was interviewed for eight hours, towards the
end of which he wrote a two-page statement. He reiterated
his movie viewing and the ensuing sexual encounter, but
this time added that he “had [his] left arm up around her
neck, [his] right arm underneath her” while having sex. Af-
ter they had sex, Thomas went out to the living room and
watched more of the video. He then again went into Oliver-
Thomas’s room and:
went and jumped on her hip area and was
humping. I was just messing around. I told her
I had time for a quickie. … I rolled Joyce over
and we went back down on the floor. … I had
No. 14-2539 5
my left arm around Joyce’s neck. I didn’t think
I was squeezing hard but Joyce was struggling,
yelling to stop and [quit]. Joyce’s feet were
kicking the floor while telling me to stop. Joyce
was telling me she loved me and for me to quit
playing. I kept squeezing for a little while until
she said she would bite the shit out of me. I got
up and left.
Thomas did not say the two had a second sexual encounter.
Thomas went to the basement and came back to find Oliver-
Thomas “laying face down on the floor” making “gurgling
sounds.” The statement ends: “I do believe I was accidental-
ly responsible for the death of Joyce.”
B. The trial
In addition to presenting that evidence at trial, the state
proposed two possible motives for Thomas’s actions. First, it
painted Thomas as desperate for money. It presented the tes-
timony of two co-workers of Oliver-Thomas who said that
Thomas called just hours after she died to ask about her
paycheck. Oliver-Thomas’s daughter also testified that the
purse Oliver-Thomas used every day was missing. Second,
the state suggested Thomas was upset about a relationship
he perceived Oliver-Thomas as having with a co-worker.
One of Oliver-Thomas’s co-workers said Thomas was jealous
of Oliver-Thomas and a male co-worker and at one point
Thomas said “he was going to kill that mother fucker.” The
same witness admitted there was no evidence Oliver-
Thomas and the co-worker were actually involved.
The state also put on the testimony of Dr. Mary Main-
land, the coroner and the medical examiner for Kenosha
6 No. 14-2539
County. Dr. Mainland testified that Oliver-Thomas had
hemorrhages in her eyes and at least ten abrasions on her
face. Dr. Mainland also found multiple hemorrhages inside
Oliver-Thomas’s neck and bruises to her thyroid and larynx.
There were no marks around Joyce’s neck, but Dr. Mainland
stated, “It’s possible that another part of the body [other than
fingers] could have been used to inflict these injuries to her
neck, such as an arm or a forearm.” Dr. Mainland came to
the conclusion that Joyce died from “strangulation and the
strangulation was due to a physical assault.” She testified,
“This was not an accident,” and estimated it would have
taken roughly four minutes of continuous pressure to have
caused Oliver-Thomas’s death.
During its closing arguments, the state relied heavily on
Dr. Mainland’s testimony when arguing intent. It stated: “If
there is any doubt about his intent or that his conduct was
practically certain to cause her death,” the jury should con-
sider how long four minutes actually was. Defense counsel
did not address the medical findings in his closing argu-
ment. In its rebuttal, the state said, “Here, we have that four-
minute minimum where the Defendant was in fact choking
the breath, the life, out of Joyce Marie Thomas. So there is no
doubt about a long time in which he was reflecting, causing,
continuing to kill her.” Thomas was convicted and exhaust-
ed his direct appeals.
C. Post-conviction hearing
Thomas’s state habeas counsel argued that Thomas was
denied effective assistance by trial counsel, who did not
reach out to a medical expert to review Dr. Mainland’s find-
ings. During the post-conviction proceedings, Thomas pre-
sented the report and testimony of Dr. Shaku Teas, a special-
No. 14-2539 7
ist in pathology and forensic pathology. Dr. Teas wrote, “it is
my opinion that Joyce Oliver-Thomas died as a result of
pressure on the neck and the autopsy findings are not incon-
sistent with Oscar Thomas’ statement. There is no physical
evidence that ‘intentional’ pressure was applied to the neck.”
Dr. Teas testified during the post-conviction hearing that
some of the injuries indicative of strangulation were missing,
e.g., external bruises on Oliver-Thomas’s neck and the bone
in the back of her neck that is often broken during strangula-
tion was not in this case. “My issue,” she testified, “is with
the diagnosis of strangulation, whether it’s intentional or un-
intentional.” Dr. Teas testified that she could not “know a
definite cause of death,” but she was not saying she “cannot
rule out strangulation.” She also determined that there was
“actually no evidence of manual strangulation” and none of
the bruises or scratches on Oliver-Thomas’s face are con-
sistent with manual strangulation.
Trial counsel testified during the hearing that he consid-
ered retaining a pathologist to look into a sleep apnea de-
fense, but Thomas stated that Oliver-Thomas had never been
treated for the suspected illness and there was not any medi-
cal documentation, and so counsel did not pursue that de-
fense. Counsel stated he did not “consider retaining a foren-
sic pathologist to at least review Dr. Mainland’s reports and
findings to see if a forensic pathologist would have any dis-
agreement with her findings.”
The post-conviction court denied relief, finding no defi-
cient performance or prejudice. The state appellate court af-
firmed, finding no prejudice, but did not address whether
counsel’s performance was deficient. The district court ap-
plied deference to the state post-conviction court’s determi-
8 No. 14-2539
nation regarding trial counsel’s performance and held that
the state post-conviction court did not unreasonably apply
United States Supreme Court precedent since “counsel had
no reason to question Dr. Mainland’s conclusion as to the
cause of death” The court also found, under a de novo review,
that Thomas was not prejudiced by counsel’s performance
since Dr. Teas “was unable to render an opinion on the cause
of death” and “could not rule out strangulation.” Thomas
appeals.
II. ANALYSIS
Thomas argues he was denied effective assistance when
trial counsel did not consult with an expert to review Dr.
Mainland’s findings or determine if his account was con-
sistent with the medical evidence. To prevail on that claim,
Thomas must show that (1) his counsel’s performance was
deficient, meaning it fell below the objective standard of rea-
sonableness (the “performance prong”), and (2) that he was
prejudiced by the deficient performance (the “prejudice
prong”). Woolley v. Rednour, 702 F.3d 411, 420–21 (7th Cir.
2012); see also Strickland v. Washington, 466 U.S. 668, 687, 688,
694 (1984).
We review a district court’s habeas decision de novo. Wool-
ley, 702 F.3d at 420. We evaluate “the totality of the evi-
dence—both that adduced at trial, and the evidence adduced
in the habeas proceeding.” Id. at 421. Under the Antiterror-
ism and Effective Death Penalty Act of 1996 (“AEDPA”), we
are required to give deference to the “judgment of a State
court” and will not grant habeas relief to “any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim—(1) resulted in a decision that
was contrary to, or involved an unreasonable application of”
No. 14-2539 9
clearly established Supreme Court precedent or “(2) resulted
in a decision that was based on an unreasonable determina-
tion of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d); see also Williams v.
Taylor, 529 U.S. 362, 376, 385–86 (2000).
The parties first disagree on the deference owed on the
performance prong. The post-conviction court addressed
this prong but the appellate court, which issued the last rea-
soned opinion from the state system, did not. Clements ar-
gues that we nonetheless owe AEDPA deference to that
prong and cites our decision in Atkins v. Zenk in which the
trial court analyzed both prongs but the appellate court only
analyzed one prong. 667 F.3d 939 (7th Cir. 2012). We stated:
”Because both prongs have been addressed by Indiana state
courts, in one form or another, the deferential standard of
review set out in § 2254(d) applies to both.” 667 F.3d at 944.
Clements argues this means we should apply AEDPA defer-
ence to the performance prong even though the appellate
court did not reach the issue. But, in Atkins, the standard of
review was not subject to debate between the parties. Atkins
conceded that his “habeas petition is subject to review under
the new standards of 28 U.S.C. § 2254 as added by
[AEDPA]” and said the question is “whether the Indiana
Court of Appeals [sic] adjudication of those claims were [sic]
contrary to or unreasonable application of Strickland.” See
Brief of Petitioner-Appellant at 5, Atkins v. Brown, No. 11-
1891 (7th Cir. Aug. 8, 2011). The government agreed AEDPA
deference applied to both prongs. Brief of Respondent-
Appellee at 9–11, Atkins v. Brown, No. 11-1891 (7th Cir. Oct.
7, 2011). Without any adversarial challenge, there was no
need for us to render a holding on the deference owed. See,
e.g., McBride v. Houtzdale, 687 F.3d 92, 100 n.10 (3d Cir. 2012)
10 No. 14-2539
(applying §2254(d) deference to both prongs even though
appellate court only ruled on prejudice prong because
“McBride ha[d] affirmatively taken the position that AEDPA
deference applies”).
We do not read Atkins to alter our decisions before or af-
ter that have held that AEDPA deference is entitled to the
“last reasoned opinion on the claim.” Woolley, 702 F.3d at 421
(quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). In
Woolley, we held that “Unless a state-court opinion adopts or
incorporates the reasoning of a prior opinion, ‘AEDPA gen-
erally requires federal courts to review one state decision.’”
Id. (citing Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir.
2005)). Since the “state appellate court declined to adopt the
trial court’s reasoning and instead remained silent on de-
fense counsel’s performance,” and the appellate court’s deci-
sion was the “last reasoned opinion,” we gave deference on-
ly to the prong the appellate court did reach and reviewed
the other de novo. Id. at 422. This is consistent with our prec-
edent both before Atkins and since. See Ruhl v. Hardy, 743
F.3d 1083, 1091 (7th Cir. 2014) (“In conducting federal habeas
review under AEDPA, we look to the last reasoned state
court opinion addressing each claim.”); Quintana v. Chandler,
723 F.3d 849, 853 (7th Cir. 2013) (noting the Woolley court
“declined the state’s request to apply 2254(d) deference to
the state court on the ineffectiveness prong, holding that
Strickland claims are divisible” and reviewing performance
prong de novo); Earls v. McCaughtry, 379 F.3d 489, 492 (7th
Cir. 2004) (reviewing performance prong de novo when cir-
cuit court found deficient performance, but appellate court,
in State v. Earls, 635 N.W.2d 905 (Wis. Ct. App. 2001), decided
case only on prejudice prong).
No. 14-2539 11
This conclusion about what deference must be given is
supported by Supreme Court precedent. See Woolley, 702
F.3d at 421 (citing Ylst, 501 U.S. at 803; Wiggins, 539 U.S. at
534). It is also supported by AEDPA’s plain language. The
statute tells us to give deference to “any claim that was ad-
judicated on the merits in State court proceedings unless the
adjudication of the claim” falls under an exception in sub-
part (1) or (2). 1 28 U.S.C. § 2254(d). AEDPA explicitly tells us
deference is afforded to “the adjudication”—note the singu-
lar, rather than plural. Had Congress intended us to give
deference to an amalgamation of adjudications, “it could
have used different language.” Cf. Grandberry v. Keever, 735
F.3d 616, 618 (7th Cir. 2013) (interpreting statutory text). The
exceptions also note that deference is not required when the
state court’s adjudication “resulted in a decision” either con-
trary to clearly established law or based on an unreasonable
factual determination. 28 U.S.C. §§ 2254(d)(1) and (d)(2)
(emphasis added). Again, the statute refers to a single deci-
sion, rather than multiple decisions. Based on Supreme
Court precedent and the plain language of the statute, we
reaffirm that we will give AEDPA deference to the “last rea-
soned opinion on the claim.” Woolley, 702 F.3d at 421. Since
the Wisconsin Court of Appeals did not adjudicate the defi-
ciency prong, we review that prong de novo.
1 The United States Supreme Court heard oral argument on March 3,
2015, in the case of Davis v. Ayala (No. 13-1428). The first issue in that
case is, “Whether a state court's rejection of a claim of federal constitu-
tional error on the ground that any error, if one occurred, was harmless
beyond a reasonable doubt is an ‘adjudicat[ion] on the merits’ within the
meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the
resulting final state conviction only if the defendant can satisfy the re-
strictive standards imposed by that provision.”
12 No. 14-2539
There is also disagreement over the deference we should
give the appellate court’s analysis of the prejudice prong. It
said, “Thomas did not demonstrate that his trial counsel’s
failure to present Teas’ testimony would have led to a differ-
ent result at trial. [Citations omitted].” Clements concedes
that the appellate court stated the wrong standard of re-
view—Thomas has to show a “reasonable probability” that,
but for counsel’s unprofessional errors, the result would
have been different. Strickland, 466 U.S. at 694. He does not,
as the appellate court said, have to show that counsel’s per-
formance would have led to a different result. Clements ar-
gues this prong is still entitled to AEDPA deference because
the court “knew and applied the correct formulation of
Strickland prejudice.” But there is no evidence in the decision
that it applied the proper standard. Cf. Sussman v. Jenkins,
636 F.3d 329, 360 (7th Cir. 2011) (reviewing under 2254(d)
deference even though court failed to cite “reasonable prob-
ability” language because “it is clear from the court’s analy-
sis that it did not believe that the note had a reasonable
probability of altering the jury's verdict”); Charles v. Stephens,
736 F.3d 380, 392–93 (5th Cir. 2013) (same). The state appel-
late court only used two sentences to address the prejudice
prong and did not actually analyze why there was no preju-
dice, instead setting forth a matter-of-fact statement that
there was no prejudice, all while applying the incorrect
standard. The two sentences in the appellate court decision
here cannot support Clements’s argument. Thus, we find the
appellate court’s decision “involved an unreasonable appli-
cation of” Strickland, and we review the prejudice prong de
novo, making this completely de novo review. See Mosley v.
Atchison, 689 F.3d 838, 850–51 (7th Cir. 2012) (reviewing
prejudice prong de novo when state appellate court “did not
No. 14-2539 13
merely recite the wrong standard or use an inapt shorthand
expression of the standard. It applied an incorrect and more
onerous standard, and the difference may well have been
decisive”).
A. Thomas’s Counsel Provided Deficient Performance
Thomas does not assert that trial counsel should have
found an expert who would testify that Thomas did not
cause Oliver-Thomas’s death. Rather, Thomas argues that
defense counsel was deficient in failing to consider and con-
sult with a pathologist who would have reviewed the autop-
sy report and possibly testified. We agree with Thomas.
Time and again, the Supreme Court has highlighted how
deferential we should be to the strategic and tactical deci-
sions made by attorneys in performing their jobs. “[C]ounsel
should be ‘strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise
of reasonable professional judgment.’ To overcome that pre-
sumption, a defendant must show that counsel failed to act
‘reasonabl[y] considering all the circumstances.’” Cullen v.
Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland, 466
U.S. at 690, 688). There are “countless ways to provide effec-
tive assistance in any given case” and that is why counsel’s
decisions are afforded a “heavy measure of deference.” Id. at
1407–08 (internal quotations omitted). To limit second-
guessing, we must “judge the reasonableness of counsel's
challenged conduct on the facts of the particular case,
viewed as of the time of counsel’s conduct." Strickland, 466
U.S. at 690.
Were the state court’s determination reviewed under the
AEDPA deference, we might come out a different way. How-
14 No. 14-2539
ever, reviewing this case de novo, we find that counsel’s per-
formance in relation to a pathologist expert was deficient.
It is undisputed that counsel did not reach out to or even
consider talking to a pathology expert to review Dr. Main-
land’s conclusion. In many cases, we would chalk such a de-
cision up as strategic or tactical. See Hinton v. Alabama, 134 S.
Ct. 1081, 1089 (2014) (per curiam) (“The selection of an ex-
pert witness is a paradigmatic example of the type of strate-
gic choic[e] that, when made after thorough investigation of
[the] law and facts, is virtually unchallengeable” (internal
citations and quotation marks omitted)). But we cannot
reach such a conclusion because counsel admitted his failure
to reach out to an expert was not a conscious decision—he
just did not think to do so. See Woolley, 702 F.3d at 423 (af-
fording no deference to counsel’s strategy choice because
“[t]hough we often defer to an attorney’s calculated decision
to forgo a certain trial strategy, it is undisputed that there
was no strategic rationale underlying these errors”); Cater v.
Bowersox, 265 F.3d 705, 716 (8th Cir. 2001) (“The presumption
that counsel's failure to raise the due process claim was a tac-
tical decision, however, is undermined by counsel's affidavit
that the instructional error was simply overlooked.”). This
inaction fell below the standard or professional norm since
“counsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular investiga-
tions unnecessary.” Strickland, 466 U.S. at 691. Here, counsel
admits to doing neither. While we appreciate counsel’s can-
dor in assessing his own performance and recognize that he
was presented with a difficult case, that does not excuse his
failure to even reach out to an expert under these circum-
stances, and thus, we give no deference to counsel’s uncalcu-
lated actions. See Woolley, 702 F.3d at 423; Earls v. McCaught-
No. 14-2539 15
ry, 379 F.3d 489, 494 (7th Cir. 2004) (affording no deference to
counsel’s decisions when, “We can think of no strategic rea-
son why Earls’ counsel would not have objected to the pieces
of questionable testimony going to this issue; indeed, coun-
sel admits such failures to object and redact were uninten-
tional ‘oversights’”).
The state had to prove that Thomas “cause[d] the death
of another human being with intent to kill that person.” Wis.
Stat. 940.01(1)(a). To show cause, the state had to show that
his act was a “substantial factor” in producing death. State v.
Below, 799 N.W.2d 95, 101–02 (Wis. Ct. App. 2011). “‘With
intent to’ or ‘with intent that’ means that the actor either has
a purpose to do the thing or cause the result specified, or is
aware that his or her conduct is practically certain to cause
that result.” Wis. Stat. 939.23(4); see also State v. Weeks, 477
N.W.2d 642, 644–45 (Wis. Ct. App. 1991) (defining intent el-
ement). Here, counsel had a client who admitted to having
his arm around the neck of the victim before she died and to
causing her death. He also had a state pathologist’s report
finding the cause of death to be manual strangulation. Based
on those facts, counsel made the wise decision to forgo argu-
ing causation and instead argued that his client lacked the
specific intent to cause Joyce’s death. As counsel put it, “I
didn’t really see an issue in terms of cause of death. My issue
was probably going to be manner of death, whether it was
homicide—intentional homicide—or some other lesser
form.”
But that is what makes counsel’s inaction deficient. By
not reaching out to an expert to review or challenge Dr.
Mainland’s findings, counsel acquiesced to the state’s strong-
est evidence of intent despite its perceivable flaws. Counsel
16 No. 14-2539
knew or should have known that the state was going to use
Dr. Mainland’s testimony to show Thomas acted intentional-
ly based on Dr. Mainland’s pretrial testimony. She stated
that, “The internal injuries were too severe and the pattern
just simply doesn’t fit” the possibility that this was anything
but strangulation. She ended her testimony by saying that “I
always keep an open mind while I’m doing an autopsy. But
once I got to the neck organs, I was pretty certain as to what
had happened.” (App. R. 22-4, 44). In other words, counsel
should have known Dr. Mainland was going to testify this
was an intentional death.
Counsel also knew his client had said the death was un-
intentional and the result of what counsel later referred to as
horseplay. Counsel knew there were no external marks on
Oliver-Thomas’s neck and no signs of any fight or struggle
between Thomas and Oliver-Thomas. Counsel should have
known there was reason to question a finding of intentional
homicide. Based on those facts, a reasonable counsel would
have at least reached out to a pathologist to see if the medi-
cal findings could be reconciled with Thomas’s versions of
the events. To not even contact an expert, however, was to
accept Dr. Mainland’s finding of intentional death without
challenge and basically doom defense’s theory of the case.
Nor was this a case where counsel’s cross-examination of
Dr. Mainland made up for the lack of expert. See Harrington
v. Richter, 562 U.S. 86, 111 (2011) (finding no deficient per-
formance where defense counsel’s cross examination of the
state’s experts “elicited concessions” from the experts and
drew “attention to weaknesses in their conclusions”). In fact,
it turned out to be the exact opposite. The state brought out
during Dr. Mainland’s direct examination the lack of finger-
No. 14-2539 17
print marks around Oliver-Thomas’s neck, and it came out
during Dr. Mainland’s testimony that there was no evidence
of a physical struggle between Oliver-Thomas and Thomas.
Yet, without any medical testimony to tie those facts to an
unintentional death, the best defense counsel could do was
ask the state’s expert whether she disagreed with her own
diagnosis and thought the death could be an accident. This
line of questioning fell flat:
Q: So, you haven’t determined whether some-
body intentionally took the life of Joyce Thom-
as, is that correct?
A: Well, I am saying it was not an accident or
that I don’t believe it was an accident.
It also prompted the state to follow up with:
Q: Based on your examination and findings
this was not caused by an accident?
A: No. This was not an accident.
If anything Dr. Mainland “repeatedly denied any alterna-
tive explanations,” and “[w]ithout a countering defense wit-
ness, [the expert’s] denials in the face of cross-examination
only reconfirmed the one-sidedness of the expert opinion
before the jury.” Woolley, 702 F.3d at 424.
That is not to say reasonable performance requires retain-
ing an expert every time the state does or every time the
state presents the testimony of a forensic expert. Recently,
the Supreme Court stated “[c]riminal cases will arise where
the only reasonable and available defense strategy requires
consultation with experts or introduction of expert evidence,
whether pretrial, at trial, or both.” Harrington, 562 U.S. at
18 No. 14-2539
106. However, “[t]here are … countless ways to provide ef-
fective assistance in any given case,” and “[r]are are the situ-
ations in which the ‘wide latitude counsel must have in mak-
ing tactical decisions’ will be limited to any one technique or
approach.” Id., at 788–89 (quoting Strickland, 466 U.S. at 689);
Woolley, 702 F.3d at 424 (“[D]efendants [do not] enjoy an au-
tomatic entitlement to expert rebuttal witnesses whenever
the government offers expert testimony in a trial,” but there
are times where the government’s expert’s conclusion require
“expert illustration by the defense in order for the jury to
weigh the evidence fairly.); Rogers v. Israel, 746 F.2d 1288,
1294 (7th Cir. 1984) (collecting cases and noting that “[i]n
several cases, the failure to investigate and present expert
testimony has been found to be a matter of trial tactics with-
in the range of reasonable performance”; “[y]et, under cer-
tain circumstances, ‘it may be vital in affording effective rep-
resentation to a defendant in a criminal case for counsel to
elicit expert testimony rebutting the state’s expert testimo-
ny’”).
We faced a somewhat analogous situation in Rogers v. Is-
rael, when the petitioner fired one bullet in response to a
feud with a fellow bar patron. 746 F.2d at 1289. The patron
then charged at the petitioner and another shot was fired
during the ensuing struggle. Id. The patron ultimately died
from a gunshot wound. Id. The state’s theory was that the
petitioner intentionally shot the patron with the first bullet
and the second shot went into the ceiling. Id. at 1290. The de-
fense theory was that the first bullet went into the ceiling
and the second, unintentionally fired bullet was the fatal
one. Id. The prosecution called a pathologist who testified
that, even if the patron were shot in the heart with the first
bullet, he would have been able to engage in the ensuing
No. 14-2539 19
struggle. Id. The defense presented no counter evidence to
rebut this testimony. Id. After the petitioner was found guilty
of first-degree murder, he alleged ineffective assistance of
counsel on habeas review and presented the testimony of a
pathologist who said that, in his experience, individuals who
suffered heart wounds comparable to those of the patron
were “immediately incapacitated upon receiving the
wounds.” Id. There was “no question” that petitioner caused
the patron’s death—the petitioner fired the bullet. Id. at 1292.
Nonetheless, counsel’s performance was deficient because he
failed to “ask a qualified expert whether [the patron] would
have been immediately incapacitated by his wound.” Id. at
1295.
In other words, it was clear that the petitioner had caused
the death, and the only issue was whether the death was in-
tentional. The state presented an expert whose testimony
was used to strongly support its theory of intentional death,
and defense counsel never pursued any rebuttal expert. We
found that performance deficient, and such is the case here.
See also Dugas v. Coplan, 428 F.3d 317, 329–30 (1st Cir. 2005)
(finding counsel ineffective in arson case for not consulting
expert when “much of Dugas’s defense … depended on
[counsel’s] ability to convince the jurors that the State’s ex-
perts might be wrong,” “the arson evidence was the corner-
stone of the state’s case,” and counsel did not have technical
proficiency to present defense without expert). As in Rogers,
counsel’s failure to even reach out to an expert was deficient.
B. Thomas Was Prejudiced By His Counsel’s Deficient
Performance
We next turn to the prejudice prong. To prevail, Thomas
must show “there is a reasonable probability that, but for
20 No. 14-2539
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Cullen, 131 S. Ct. at 1403 (citing
Strickland, 466 U.S. at 694). It is not enough to show that
counsel’s performance had an effect on the outcome or that
“it is possible a reasonable doubt might have been estab-
lished if counsel acted differently.” Harrington, 562 U.S. at
111. “‘A reasonable probability is a probability sufficient to
undermine confidence in the outcome.’ That requires a ‘sub-
stantial,’ not just ‘conceivable,’ likelihood of a different re-
sult.” Cullen, 131 S. Ct. at 1403 (quoting Richter, 131 S. Ct. at
792). Our conclusion must keep in mind that “a verdict or
conclusion only weakly supported by the record is more
likely to have been affected by errors than one with over-
whelming record support.” Strickland, 466 U.S. at 696.
Again, were the facts reviewed under the AEDPA defer-
ence, we might come out differently. However, reviewing
this case de novo, we find that Oliver was prejudiced by
counsel’s deficient performance.
The state’s case was not ironclad by any stretch of the im-
agination. Its theories of motive—that Thomas wanted mon-
ey, that he was concerned that Oliver-Thomas would finally
kick him out after all the previous threats, or that Thomas
was jealous of Oliver-Thomas’s relationship with a cowork-
er—were all weak. Its case also suffers from a very serious
flaw in terms of timing. The state’s theory was that there was
an altercation between Thomas and Oliver-Thomas. Cruz,
the neighbor, testified that she heard noises (including
screaming) above her for an hour. Yet Dr. Mainland said
strangulation would likely result after four minutes of pres-
sure, meaning there were roughly fifty-five minutes in
which Oliver-Thomas was not being choked to death. Had
No. 14-2539 21
there been an altercation, one may expect to find signs of a
struggle after fifty-five minutes of conflict, but all parties
admit there is no evidence of external marks on either
Thomas or Oliver-Thomas. The state presents no explanation
for this. Nor does the state explain how a woman being
choked to death can scream “Stop, stop, I love you, I love
you” loud enough to be heard one floor below her.
Dr. Teas’s testimony, 2 combined with Thomas’s statement
to the police, does explain what happened. Dr. Teas stated
that the lack of external bruising on Oliver-Thomas’s neck
and lack of signs of struggle are not inconsistent with Thom-
as’s story that he had his arm around her neck during sex
and the rough housing, and that could have caused her
death. This theory of the case could also explain the noises
for an hour—the sex and then the rough housing, albeit with
a break in between—rather than for just five minutes. Dr.
Teas’s testimony, therefore, provides a reconciliation of these
facts and a medical foundation for the defense’s argument
that even if Thomas physically caused her death with a part
of his body (which no one contests on appeal), he did not do
so intentionally. As Dr. Teas admitted and the law requires,
2 The state argues that there is no evidence that Dr. Teas and her tes-
timony were “reasonably available” to defense counsel at the time of
trial, as they must be for habeas purposes. See Ellison v. Acevedo, 593 F.3d
625, 634 (7th Cir. 2010) (“For counsel's performance to be found deficient,
the defendant must demonstrate that an expert capable of supporting the
defense was reasonably available at the time of trial.”). However, based
on “its face,” it is clear Dr. Teas was available and able to testify. Id. Her
curriculum vitae shows that she held the same position in 2007, at the
time of Thomas’s trial, as when she testified in the post-conviction pro-
ceedings. Also, post-conviction counsel was able to find her, and her tes-
timony demonstrates that she was reasonably available at the time.
22 No. 14-2539
she could not testify as to Thomas’s state of mind, but her
testimony reconciles Thomas’s statement and the evidence,
which leads to the logical conclusion that he did not commit
the act intentionally. See Steele v. State, 294 N.W.2d 2, 13–14
(Wis. 1980) (“What we bar from introduction at the guilt
phase of the trial is expert opinion testimony tending to
prove or disprove the defendant's capacity to form the req-
uisite criminal intent.”).
Thomas’s intent was one of the linchpins of the case, if
not the key point, and yet defense counsel presented no af-
firmative evidence that Thomas did not have the requisite
intent to commit the crime. It is true that defense counsel did
draw out some evidence that Thomas did not commit the act
intentionally, but that effort was not effective. For example,
the lack of external bruises was discussed during Dr. Main-
land’s testimony; however she quickly rejected that absence
as inconclusive and stated twice that this could not have
been an accident. Conversely, Dr. Teas noted in her report
that there is “no anatomical evidence to classify this death as
‘manual strangulation’” and stated affirmatively that “Oli-
ver-Thomas died as a result of pressure on the neck and the
autopsy findings are not inconsistent with Oscar Thomas’s
statement. There is no physical evidence that ‘intentional’
pressure was applied to the neck.” Her conclusion, therefore,
undermines the state’s already weak case on Thomas’s in-
tent. Had the jury been presented with this testimony, in-
stead of just an argument unsupported by expert testimony
as it was, it is substantially likely that Thomas could have
raised at least a reasonable doubt and had a different out-
come at trial. Therefore, Thomas has shown that there is a
reasonable probability the outcome of the trial would have
been different had counsel provided adequate representa-
No. 14-2539 23
tion. See, e.g, Rogers, 746 F.2d at 1295 (finding prejudice since
post-conviction expert would have rebutted testimony of
state expert that physical evidence supported conclusion of
intent); Showers v. Beard, 635 F.3d 625, 631-34 (3d Cir. 2011)
(finding counsel’s performance deficient and prejudice when
defense failed to hire expert to determine if the taste of the
drug could be masked and therefore whether death was a
result of suicide or intentional homicide).
There is a shortcoming that weakens Dr. Teas’s report.
Namely, she equates Dr. Mainland’s testimony of manual
strangulation as only strangulation by the hands, but Dr.
Mainland clearly testified at trial she used the phrase “man-
ual strangulation” to also include strangulation by other
parts of the body, e.g., the forearm. Nonetheless, the de novo
review of the record leads to the conclusion that Dr. Teas’s
ultimate determination that the facts are consistent with an
accidental death is sufficient to raise a reasonable doubt and
therefore show prejudice for ineffective assistance of counsel
purposes. See, e.g., Strickland, 466 U.S. at 695 (“[T]he question
is whether there is a reasonable probability that, absent the
errors, the factfinder would have had a reasonable doubt re-
specting guilt.”).
III. CONCLUSION
For these reasons, we REVERSE the district court’s denial
of Thomas’s petition and REMAND for proceedings consistent
with this opinion.