Birt Ford v. Dennis Reagle

In the

United States Court of Appeals

for the Seventh Circuit

____________________

No. 21-3061

BIRT FORD,

Petitioner-Appellant,

v.

DENNIS REAGLE,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division

No. 1:20-cv-01639 — Richard L. Young, Judge.

____________________

ARGUED APRIL 5, 2023 — DECIDED SEPTEMBER 22, 2025

____________________

Before SYKES, Chief Judge, and HAMILTON and BRENNAN,

Circuit Judges.

SYKES, Chief Judge. In June 2005 Birt Ford forced his way

into his estranged wife’s home, threatened her with a knife,

and repeatedly sexually assaulted her. A jury in Allen

County, Indiana, found him guilty of rape, burglary, and

other crimes, and he was sentenced to 70 years in prison.

The Indiana Court of Appeals affirmed, and the Indiana

Supreme Court denied further review.

2 No. 21-3061

Ford petitioned for state postconviction relief in August

2007. Through his appointed postconviction counsel, he

raised claims of ineffective assistance of counsel under Strick-

land v. Washington, 466 U.S. 668 (1984). As relevant here, he

alleged that his trial attorney failed to pursue plea negotia-

tions and made poor decisions about witness strategy at trial.

Three years after filing the petition, Ford retained private

counsel, and his appointed counsel withdrew. Eight years

later, the private attorney also withdrew. As far as the record

shows, neither attorney took any action on the petition.

At that point Ford proceeded pro se, and in November

2018 the state trial judge issued an order requiring that the

postconviction petition be submitted on affidavits, as permit-

ted by Indiana law. The judge gave Ford several months to

submit affidavits and later denied his motion for court assis-

tance when his effort to obtain an affidavit from his trial

counsel failed. Ford submitted his own affidavit attesting that

shortly before trial, his attorney told him that the prosecution

was “willing to negotiate” and that he had instructed counsel

to “see what kind of deal they would offer” but his attorney

did not follow up. Ford did not say, however, that he would

have pleaded guilty if the prosecution had offered a favorable

plea deal. The trial court denied relief and the Indiana Court

of Appeals affirmed. The Indiana Supreme Court again

denied review.

Ford then sought federal habeas review under 28 U.S.C.

§ 2254. He requested an evidentiary hearing, but the district

judge denied that request and ultimately denied the petition.

The judge was concerned, however, about Ford’s opportunity

to fairly litigate the plea-negotiation claim given the state

court’s refusal to help him with evidence collection. So he

No. 21-3061 3

granted a certificate of appealability on that issue. We ap-

pointed pro bono counsel to assist Ford on appeal.1 At coun-

sel’s request, we enlarged the certificate of appealability to

include certain issues related to counsel’s witness strategy at

trial.

Having reviewed the record, we understand the district

judge’s concern about the lack of evidentiary development on

the plea-negotiation claim. But the responsibility to develop

the record rested with Ford’s postconviction attorneys. They

represented him for a combined period of 11 years without

securing evidence from Ford’s trial counsel, a necessary

predicate for his Strickland claim. Under Supreme Court

precedent, their failure to do so is attributed to Ford and does

not permit us to override the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), which generally bars a

federal evidentiary hearing on a state prisoner’s habeas claim,

with only narrow and inapplicable exceptions. See 28 U.S.C.

§ 2254(e)(2); Shinn v. Ramirez, 596 U.S. 366, 382 (2022); Wil-

liams v. Taylor, 529 U.S. 420, 432 (2000). The judge therefore

properly denied Ford’s request for an evidentiary hearing.

And because the state appellate court’s decision was not

unreasonable under § 2254(d)(1) or (2), the district judge also

properly denied habeas relief. We affirm.

I. Background

Our account of the facts comes from the trial evidence as

described in the opinions of the Indiana Court of Appeals on

1 Xiao Wang and the Bluhm Legal Clinic at Northwestern University’s

Pritzker School of Law accepted the appointment. Mr. Wang was assisted

by law students Elaine Cleary and Samantha Reilly. They have ably

discharged their duties. We thank them for their service.

4 No. 21-3061

direct appeal and postconviction review. See Ford v. State

(Ford I), 856 N.E.2d 795 (Ind. Ct. App. 2006) (unpublished

table decision); Ford v. State (Ford II), 145 N.E.3d 140 (Ind. Ct.

App. 2020) (unpublished table decision). The key trial wit-

nesses were Ford’s estranged wife Yolanda, the victim of

these offenses, and their teenaged daughter Laressa, who was

present in the house where the offenses occurred.

At the time of the crimes, Birt and Yolanda had been to-

gether for about 20 years and married for ten. They have four

children. Laressa is the oldest; she was 17 years old at the

time of trial. Ford had a history of domestic abuse against his

wife. In January 2005 he made a threat against Yolanda in the

presence of a police officer who was helping her retrieve

some personal items from the family home after she and the

children moved out.

In the months that followed, Yolanda and her children

lived in a women’s shelter for periods of time; she eventually

rented a home from the local housing authority. On May 27

Yolanda obtained a protective order prohibiting Ford from

contacting her or visiting her residence. Undeterred, three

days later Ford called her several times. When he learned that

she was at her cousin’s house, he went to that residence and

forcibly tried to get her to leave with him; she sustained

injuries to her arms and stomach in the scuffle.

On the evening of June 11, Yolanda put her younger chil-

dren to bed and fell asleep while watching television with

Laressa. She woke up to the sound of Ford kicking in her

back door. She tried to call 911, but Ford snatched her phone

and threw it to the floor, breaking it. Ford then grabbed a

butcher’s knife from the kitchen, barricaded the back door

with the kitchen table, and led Yolanda to a back bedroom

No. 21-3061 5

and locked the door. While threatening to kill her, he ordered

her to perform oral sex. At some point Ford heard sirens, so

he stepped outside the bedroom to remind Laressa that “both

her parents [would] be dead” if police entered the home. Ford

I, 856 N.E.2d 795, at *1 (alteration in original). Ford then

returned to the bedroom and had sex with Yolanda against

her will.

The next morning Ford again had sex with Yolanda. Then,

while he was showering, Yolanda and the children escaped

from the home with her mother’s help. Yolanda went to a

sexual-assault treatment center, and an examining nurse

noted that she had sustained injuries “consistent with forced

penetration.” Id.

Police interviewed Ford the same day. He admitted to

many of these facts but characterized them differently. For

example, although he acknowledged entering Yolanda’s

residence without consent, he denied kicking in the door. He

admitted to grabbing the knife, but he claimed that he want-

ed Yolanda to stab him with it and said he had suggested that

she do so. Finally, he admitted to twice having sex with

Yolanda, but insisted that it was consensual. Ford II,

145 N.E.3d 140, at *2. More generally, Ford maintained that

he had visited Yolanda with innocent intentions—to talk,

make up, and reunite as a family.

Ford was charged with rape, burglary, criminal deviate

conduct, and several other crimes. Public defender Mitchell

Hicks was appointed to represent him. While most of the trial

details are irrelevant for our purposes, a few deserve our

attention. At the beginning of jury selection, the judge asked

the lawyers to introduce themselves and their intended

witnesses, thus giving the prospective jurors the opportunity

6 No. 21-3061

to identify potential conflicts. After Hicks introduced himself,

he informed the jury that the defense intended to call Ford’s

sister Barbara (among other witnesses). During his opening

statement, Hicks told the jury several times that Ford would

testify in his own defense.

Yolanda Ford was the prosecution’s first witness; she tes-

tified to the factual account we’ve just summarized. She was

followed by her daughter Laressa, who largely corroborated

her mother’s account with minor variations. But Laressa

lacked personal knowledge of the events in the back bed-

room. Hicks’s cross-examination of Laressa lasted only a few

minutes. Focusing mostly on impeachment, Hicks reminded

her of contradictory statements she had given to police and

highlighted the differences between her testimony and her

mother’s. But his cross-examination also included a question

about Ford’s temper. Hicks asked Laressa, “You’ve seen your

dad mad before, haven’t you? He gets pretty vocal when he

gets upset, doesn’t he?” Laressa answered “yes.”

In addition to Yolanda and Laressa, the prosecution called

seven more witnesses and played a redacted portion of

Ford’s videotaped interview. The defense case was brief:

Hicks recalled Yolanda, and his short direct examination

primarily emphasized her lack of resistance against Ford’s

attack.

The jury found Ford guilty of five of the seven charged

crimes: rape, criminal deviate conduct, burglary, criminal

confinement, and invasion of privacy. The jury acquitted him

of a second rape charge and a charge of interfering with a

report of a crime. The judge imposed a total sentence of 70

years in prison. The Indiana Court of Appeals affirmed the

No. 21-3061 7

judgment on direct appeal, and the Indiana Supreme Court

denied further review.

Ford then sought postconviction relief in state court, filing

his petition through appointed postconviction counsel in

August 2007. He raised claims under Strickland for ineffective

assistance of counsel, alleging that his trial and appellate

attorneys made numerous mistakes. As relevant here, he

argued that Hicks failed to pursue plea negotiations and

made several errors in witness strategy at trial.

From that point on, the record of what happened in the

state trial court is almost totally silent. We know that Ford’s

appointed postconviction counsel withdrew in October 2010

and that retained counsel entered an appearance. The record

picks up eight years later, in November 2018, when Ford’s

private counsel also moved to withdraw. The judge granted

that motion. The State then moved to require Ford to submit

his postconviction claims by affidavit, as permitted by Indi-

ana law in this situation.2 The judge granted that motion too.

Ford moved for reconsideration. He also moved to compel

the Allen County Clerk of Courts to mail him case documents

and asked the court for assistance to compel Hicks to file an

affidavit responding to his interrogatories. This last motion

deserves some additional explanation. Ford explained that he

had mailed interrogatories to Hicks but had not received a

response; he attached a copy of a certified mail card as sup-

port. Several weeks later Ford also moved for a court order to

depose Hicks.

The trial judge noted but took no action on Ford’s recon-

sideration motion, took the deposition motion under advise-

2 See IND. R. POST-CONVICTION REMEDIES 1, § 9(b).

8 No. 21-3061

ment, and denied the other two. Apparently unpersuaded by

Ford’s representations and the certified mail card (or perhaps

overlooking these submissions), the judge explained that

“nothing in the record” indicated that Ford had “actually

requested” an affidavit from counsel. Still, the judge reserved

decision on whether to hold an evidentiary hearing until after

the case was submitted by affidavit.

Ford submitted his own affidavit in support of his post-

conviction claims. As relevant here, he stated that Hicks had

informed him shortly before trial that the prosecution was

“willing to negotiate” and that he had instructed counsel to

“see what kind of deal they would offer” but Hicks “never

did what I requested.” Ford did not say, however, that he

would have acknowledged his guilt and pleaded guilty if the

prosecutor had offered a favorable plea deal. Ford also stated

that Hicks had not called his sister Barbara to testify even

though he had told the jury that she would be a witness. Ford

asserted that Barbara would have testified about Yolanda’s

“habit of lying to me.” Ford also claimed that Hicks was

ineffective for not calling him as a witness in his own defense

after telling the jury that he would testify. Finally, Ford

complained that Hicks’s cross-examination of Laressa had

“opened the door” for the prosecution to “paint a negative

picture of me.”

The trial judge dismissed Ford’s postconviction petition.

On the plea-negotiation issue, the judge concluded that

because Ford had not confirmed that he would have admit-

ted his guilt—a prerequisite for a guilty plea in Indiana, see

Norris v. State, 896 N.E.2d 1149, 1152 (Ind. 2008)—he had not

shown that “plea negotiations would have affected the

outcome” of the case, as required by Lafler v. Cooper, 566 U.S.

No. 21-3061 9

156 (2012). The judge also concluded that Hicks was not

ineffective for failing to call Ford’s sister as a witness because

her proposed character testimony would have been inadmis-

sible. Nor could Hicks be faulted for not putting his client on

the stand in his own defense because Ford had not explained

how his testimony at trial would have differed from what he

said in the videotaped interview. The judge did not discuss

Hicks’s cross-examination of Laressa.

Ford appealed, raising the same issues. Applying the

Strickland standard, the Indiana Court of Appeals affirmed.

On the issue of Hicks’s failure to pursue plea negotiations,

the appellate court’s analysis did not track the trial judge’s.

Rather than resting its decision on Ford’s unwillingness to

admit his guilt—making it unlikely that either he or the trial

court would have accepted a plea deal—the appellate court

focused instead on the lack of evidence to support this claim.

The court noted that no evidence beyond Ford’s own “self-

serving affidavit” supported his version of events, and the

trial court was “no[t] oblig[ed] to credit” that version. Ford II,

145 N.E.3d 140, at *5. In addition, because the record lacked

any evidence from Hicks, the court presumed that he “would

not have corroborated Ford’s account.” Id. (citing Oberst v.

State, 935 N.E.2d 1250, 1254 (Ind. Ct. App. 2010)). In all other

relevant respects, the appellate court’s reasoning aligned with

the trial judge’s: the panel agreed that Barbara’s testimony

would have been inadmissible character evidence and that

Ford’s testimony would have been cumulative or contradic-

tory—and in either case, unhelpful. Id. at *5, *7. Like the trial

judge, the Indiana Court of Appeals did not address the issue

of Hicks’s cross-examination of Laressa.

10 No. 21-3061

Ford sought review in the Indiana Supreme Court, reiter-

ating most of his arguments with one notable exception: he

did not renew his claim that Hicks’s cross-examination of

Laressa was constitutionally ineffective. Once again, the state

supreme court declined review.

Ford then turned to federal court with a pro se petition for

habeas corpus under § 2254. He raised the same issues (and

many others since abandoned). The district judge denied

relief. Starting with the plea-negotiation issue, the judge was

skeptical of the state appellate court’s “failure of proof”

rationale, noting that Ford had “tried to obtain trial counsel’s

testimony.” So the judge looked through the appellate court’s

opinion to the trial judge’s decision, reasoning that the appel-

late court had “essentially accepted” the trial court’s analysis.

The judge then held that the state trial judge had not unrea-

sonably applied the Supreme Court’s decisions in Lafler and

the companion case of Missouri v. Frye, 566 U.S. 134 (2012).

Not only was there “no evidence of an uncommunicated

formal plea,” but Ford’s unwavering commitment to his

innocence would have precluded an Indiana court from

accepting a hypothetical guilty plea.

Turning to the cluster of issues concerning Hicks’s trial

performance, the judge noted some missteps in the appellate

court’s reasoning but nothing that provided grounds for

habeas relief under § 2254(d). Relevant here, the judge held

that the state appellate court had reasonably concluded that

Hicks was not ineffective for failing to call Barbara Ford as a

witness and likewise reasonably held that Ford was not

prejudiced by his attorney’s decision not to call him to testify.

Finally, the judge noted that the state trial and appellate

courts had overlooked the issue of Hicks’s cross-examination

No. 21-3061 11

of Laressa. Analyzing it himself, the judge assumed without

deciding that the challenged cross-examination amounted to

deficient performance but concluded that it was not prejudi-

cial based on the abundant corroborated evidence of Ford’s

guilt.

Still, the judge expressed concern about Ford’s opportuni-

ty to “fairly litigate” the plea-negotiation issue based on the

state court’s “refusal to hold an evidentiary hearing or oth-

erwise assist” him in collecting evidence. The judge conclud-

ed, however, that AEDPA barred him from holding an

evidentiary hearing to develop a record for the first time on

federal habeas review. But his lingering concern led him to

issue a certificate of appealability limited to the plea-

negotiation issue.

Ford appealed, and we appointed pro bono counsel to as-

sist him. We later granted counsel’s request to expand the

certificate of appealability to include the claimed errors in

witness strategy noted above.

II. Discussion

An order granting habeas relief from a state criminal

judgment “is an ‘extraordinary remedy,’ reserved for only

‘extreme malfunctions in the state criminal justice system.’”

Brown v. Davenport, 596 U.S. 118, 133 (2022) (quoting Brecht v.

Abrahamson, 507 U.S. 619, 633–34 (1993)). In deference to the

federalism interests of the states, and to ensure that federal

habeas review does not become a “substitute for ordinary

error correction through appeal,” Harrington v. Richter, 562

U.S. 86, 102–03 (2011), AEDPA imposes a steep standard of

review when a state court has ruled on the merits of a state

prisoner’s federal claim, Brown, 596 U.S. at 125. A federal

12 No. 21-3061

court “shall not” grant a writ of habeas corpus unless the

state court’s decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court” or (2) “based on an

unreasonable determination of the facts” as “presented in the

State court proceeding.” § 2254(d).

“Unreasonable” in this context means more than simply

“wrong.” The state court’s decision must be “so lacking in

justification that there was an error well understood and

comprehended in existing law.” Harrington, 562 U.S. at 103.

Not just that—the error must be so obvious that it is “beyond

any possibility for fairminded disagreement.” Id. “By design,

this is a difficult standard to meet.” Meyers v. Gomez, 50 F.4th

628, 641 (7th Cir. 2022).

Moreover, where—as here—a state prisoner alleges a vio-

lation of his Sixth Amendment right to the effective assistance

of counsel in his defense, our review is “doubly deferential”

because the underlying substantive legal standard—

established in the Supreme Court’s decision in Strickland—is

itself highly deferential. Cullen v. Pinholster, 563 U.S. 170, 190

(2011). “It is all too tempting for a defendant to second-guess

counsel’s assistance after conviction or adverse sentence, and

it is all too easy for a court, examining counsel’s defense after

it has proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable.” Strickland, 466 U.S.

at 689. To guard against “the distorting effects of hindsight,”

the Supreme Court has instructed courts to “indulge a strong

presumption that counsel’s conduct falls within the wide

range of professional assistance”; the defendant bears the

burden to overcome the presumption. Id.

No. 21-3061 13

Accordingly, on § 2254 habeas review, federal courts must

indulge two presumptions: under AEDPA, we presume that

the state courts “know and follow the law,” Dunn v. Reeves,

594 U.S. 731, 739 (2021) (per curiam) (quotation marks omit-

ted); and under Strickland, we presume that defense counsel

“rendered adequate assistance” and “exercise[d] … reasona-

ble professional judgment,” Burt v. Titlow, 571 U.S. 12, 18

(2013) (quotation marks omitted). In simpler terms, we give

“both the state court and the defense attorney the benefit of

the doubt.” Id. at 15.

To overcome the presumption of adequate representation,

the defendant must prove that his attorney’s performance

was deficient—that is, that it “fell below an objective stand-

ard of reasonableness” under all the circumstances, Strickland,

466 U.S. at 687–88; and that counsel’s deficient performance

prejudiced his defense, id. at 692. To prove prejudice, the

defendant must establish “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceed-

ing would have been different.” Id. at 694.

One last point: a state prisoner’s federal habeas claim “is

considered against the last reasoned state court decision on

the merits.” Minnick v. Winkleski, 15 F.4th 460, 469 (7th Cir.

2021). We will return to this subject in a moment.

A. Plea-Negotiation Issue

The main issue on appeal concerns the failed plea negotia-

tions—or more precisely, the nonexistent plea negotiations.

Ford contends that Hicks was ineffective because he disre-

garded an explicit instruction from him to pursue the possi-

bility of a plea deal.

14 No. 21-3061

The Sixth Amendment right to the effective assistance of

counsel extends to plea negotiations, so under Strickland the

defendant must shoulder the burden of proving that his

counsel’s performance with respect to plea bargaining was

both objectively unreasonable and prejudicial. Lafler, 566 U.S.

at 162–63; see also Frye, 566 U.S. at 140. To establish prejudice

in this context, the defendant must show that but for coun-

sel’s ineffectiveness, there is a reasonable probability that (1)

a favorable plea bargain would have been offered, accepted,

and not later withdrawn based on intervening events; (2) the

plea deal would have been accepted by the court; and (3) the

resulting conviction or sentence (or both) “would have been

less severe than under the judgment and sentence that in fact

were imposed.” Lafler, 566 U.S. at 164.

We pause here to address a threshold procedural point.

Ford criticizes the district judge for “looking through” the

Indiana appellate court’s opinion to the trial court’s decision.

The Supreme Court has endorsed a “look-through” approach

when the last state court decision “does not come accompa-

nied with … reasons”—typically, when a reviewing court’s

decision simply says “affirmed” or “denied.” Wilson v. Sellers,

584 U.S. 122, 125 (2018). The Indiana Supreme Court’s sum-

mary denial of review certainly qualifies for this treatment,

but the intermediate appellate court’s decision contained a

detailed, issue-by-issue analysis. So Ford’s procedural point

is well taken.

The district judge saw things differently. He found fault

with the appellate court’s rationale for rejecting Ford’s claim

about plea negotiations. But he determined that the appellate

court had also (or perhaps alternatively) “essentially accept-

ed” the trial judge’s decision on this issue, so he shifted his

No. 21-3061 15

focus and considered the trial court’s reasoning. Recall that

the state trial judge’s decision rested on the conspicuous

absence of any statement from Ford that he would have

pleaded guilty if a favorable plea deal had been offered.

When considered against the backdrop of Ford’s persistent

claims of innocence—claims that under Indiana law would

have foreclosed a guilty plea—this glaring omission meant

that he had not shown a reasonable probability of a different

result. And that, in turn, meant that Ford had failed to estab-

lish Strickland prejudice in the sense required by Lafler.

It’s no surprise that the district judge found this analysis

eminently reasonable. Indeed it was. Alas, nothing in the

appellate court’s decision suggests that the appellate panel

adopted the trial judge’s rationale; in fact, the court never

mentioned it. Instead, the appellate court rested its decision

on the lack of evidence corroborating Ford’s factual narrative

on the plea-negotiation claim—and most significantly, the

absence of any testimony from Hicks. Because the record

lacked evidence from Hicks, the appellate court presumed

that the attorney would not have corroborated Ford’s ac-

count. As the last reasoned state-court decision on the merits,

we focus our review on the appellate court’s reasons rather

than the trial judge’s.

Though Ford is right about this procedural point, he is

wrong about its effect on the bottom line. We note for starters

that the state appellate court correctly cited and applied the

Strickland standard. Ford does not argue otherwise. Instead,

he maintains that the appellate court unreasonably applied

the ”missing evidence” rule, a century-old common-law

evidentiary presumption reflecting the common-sense infer-

ence that when a litigant fails “to bring to the support of his

16 No. 21-3061

defence the very best evidence … in his possession,” the trier

of fact may reasonably conclude that the evidence “would

not be favorable to the defence.” Clifton v. United States, 45

U.S. 242, 247 (1846). As applied to witnesses, the missing-

evidence rule “permits an inference of unfavorable testimony

from [a] missing witness.” Littlefield v. McGuffey, 954 F.2d

1337, 1346 (7th Cir. 1992). But it applies only if the witness

was “within the opposing party’s power to produce.” Id.

Ford contends that because the state trial court denied his

pro se request for assistance in procuring Hicks’s testimony,

it was not just wrong for the appellate court to apply the

“missing evidence” rule—it was objectively unreasonable.

This argument overlooks the limits on federal habeas review

of state criminal judgments. Under § 2254(d)(1), a federal

court cannot set aside a state criminal judgment unless the

state court’s decision unreasonably applied clearly estab-

lished federal law, as determined by the Supreme Court. In an

effort to fit his case within subsection (d)(1), Ford cites the

Supreme Court’s decision in Mammoth Oil Co. v. United States,

275 U.S. 13 (1927). We’re not sure why. The Mammoth Oil

decision is simply an application of the “missing evidence”

common-law presumption in a Supreme Court case; it did

not establish a principle of federal law binding on the states

under the Supremacy Clause.

To the contrary, the evidentiary rules used in state court

are the province of state law; the state courts need not follow

the same rules of evidence in use in the federal courts. Rather,

the states have “broad latitude” to establish, interpret, and

apply their own rules of evidence. Caffey v. Butler, 802 F.3d

884, 895 (7th Cir. 2015) (quoting United States v. Scheffer, 523

U.S. 303, 308 (1998)). And that’s precisely what the Indiana

No. 21-3061 17

Court of Appeals did in Ford’s case. The court relied on a

state-law evidentiary inference in its failure-of-proof analysis,

citing Oberst v. State, 935 N.E.2d 1250, 1254 (Ind. Ct. App.

2010) (“When counsel is not called as a witness to testify in

support of a petitioner’s arguments, the post-conviction court

may infer that counsel would not have corroborated the

petitioner’s allegations.”). If that was an error—an issue we

do not decide—it was one of state law, not federal law. Errors

of state law are not cognizable in federal habeas. Pierce v.

Vanihel, 93 F.4th 1036, 1046 (7th Cir. 2024).

Ford’s fallback position is that we should set aside the ap-

pellate court’s failure-of-proof rationale as an unreasonable

determination of the facts under § 2254(d)(2). This recharac-

terization of the claim rests on Ford’s contention that the state

trial judge wrongly denied his requests for assistance in

procuring Hicks’s testimony after his retained counsel with-

drew, thus leaving a gap in the state-court record. Recast in

this way, the argument overlaps with Ford’s argument that

the district judge should have granted his motion for an

evidentiary hearing to address the gap in the state-court

record. Whichever way it is characterized, the argument fails

to grapple with the strict limits in § 2254(d) and (e).

On federal habeas review, a state court’s factual findings

are “presumed to be correct,” and this presumption can be

overcome only by “clear and convincing evidence.”

§ 2254(e)(1); see also Pierce, 93 F.4th at 1045. “This is a stringent

standard”; “even if reasonable minds … might disagree”

about a factual finding, “that does not suffice to supersede

the [state court’s] determination.” Pierce, 93 F.4th at 1045

(internal quotation marks omitted).

18 No. 21-3061

More fundamentally, however, the state appellate court’s

analysis of the plea-negotiation claim did not turn on factual

findings. The appellate court rejected Ford’s claim based on

the lack of an evidentiary record—most notably, the absence

of any evidence from Hicks. In other words, the appellate

court’s decision was rooted in factual deficiencies, not factual

determinations. In the absence of any factual findings, Ford

cannot establish what § 2254(d)(2) requires: that the state-

court decision “was based on an unreasonable determination

of the facts.” So § 2254(d)(2) cannot serve as a gateway to de

novo review of this claim.

Equally important, § 2254(e)(2) precludes an evidentiary

hearing on a state prisoner’s habeas claim to address the

deficiencies in the state-court record. More specifically, the

statute provides that “[i]f the applicant has failed to develop

the factual basis of a claim in State court proceedings,” the

federal court “shall not hold an evidentiary hearing.”

§ 2254(e)(2) (emphasis added.) There are exceptions, but they

are quite limited. When a state prisoner fails to develop the

state-court record, a federal court may hold an evidentiary

hearing on his habeas claim in only two narrow circumstanc-

es: when the claim relies on either a new and retroactive rule

of constitutional law from the Supreme Court, § 2254(e)(2)(i),

or “a factual predicate that could not have been previously

discovered through the exercise of due diligence,”

§ 2254(e)(2)(ii). There is an additional requirement even if one

of these exceptions applies: the facts underlying the new

claim must be sufficient to establish by clear and convincing

evidence that “no reasonable factfinder would have found

the applicant guilty,” § 2254(e)(2)(B).

No. 21-3061 19

“Failure” in this context means a “lack of diligence, or

some greater fault, attributable to the prisoner or the prisoner’s

counsel.” Williams, 529 U.S. at 432 (emphasis added). So Ford

cannot fault the state trial court for the lack of an evidentiary

record on his claims. He was represented by counsel in 2007

when he filed his postconviction motion and for 11 years

thereafter. His attorneys were responsible for developing a

factual basis for his Strickland claim, but as far as the record

shows, neither his appointed attorney nor retained attorney

did so.3 Their failures are imputed to Ford. Williams, 529 U.S.

at 432.

The Supreme Court has been explicit and unequivocal on

this point. “[U]nder AEDPA and [the Court’s] precedents,

state postconviction counsel’s ineffective assistance in devel-

oping the state-court record is attributed to the prisoner.”

Shinn, 596 U.S. at 382. Accordingly, “under § 2254(e)(2), a

prisoner is ‘at fault’ even when state postconviction counsel is

negligent.” Id. at 384. And in that situation, “a federal court

may order an evidentiary hearing or otherwise expand the

state-court record only if the prisoner can satisfy [one of]

§ 2254(e)(2)’s stringent” exceptions. Id.

That’s what distinguishes Ford’s case from Lee v. Kink, 922

F.3d 772 (7th Cir. 2019), which he cites as support for his

argument that the district judge wrongly rejected his request

3 In postargument filings, Ford identified deficiencies in his postconvic-

tion counsel’s performance that likely contributed to the stagnant state-

court record. His description of his retained postconviction counsel’s

performance is especially concerning. He explained that the Indiana

Supreme Court later suspended counsel’s license for misconduct in an

unrelated case. In re Welke, 131 N.E.3d 161, 165 (Ind. 2019).

20 No. 21-3061

for an evidentiary hearing. In Lee we remanded for an eviden-

tiary hearing on a § 2254 habeas petition because the petition-

er had made “more than a dozen express requests” for an

evidentiary hearing in state court, all of them ignored. Id. at

774. The state prisoner’s repeated efforts to obtain a hearing

in state court were enough to demonstrate his diligence in

trying to develop a factual basis for his claims. Under these

circumstances, we held that the petitioner was not at fault for

the failure to develop the state-court record; the fault, we

said, “must be attributed to the state judiciary’s failure to

afford him a hearing.” Id.

This case is different. Here the responsibility to develop

the factual record rested with Ford’s postconviction counsel.

His attorneys are at fault for not doing so, not the state judici-

ary. Under Shinn and Williams, postconviction counsel’s

neglect is attributed to Ford. Because their 11-year failure to

act is imputed to Ford, his eleventh-hour request for court

assistance after the judge ordered the case submitted on

affidavits does not establish diligence under § 2254(e)(2). The

district court therefore was statutorily precluded from hold-

ing an evidentiary hearing unless Ford’s case qualified under

one of § 2254(e)(2)’s “stringent” exceptions. Shinn, 596 U.S. at

384. Because neither exception in § 2254(e)(2) applies, the

district judge correctly declined to hold an evidentiary hear-

ing and properly denied relief on this claim under § 2254(d).

B. Witness-Strategy Arguments

At Ford’s request, we expanded the certificate of appeala-

bility to permit him to raise three additional Strickland argu-

ments on appeal. All relate to Hicks’s witness strategy at trial.

We turn to those arguments now, but we can be brief.

No. 21-3061 21

We start with Hicks’s cross-examination of Laressa, which

elicited some negative information about Ford’s temper. As

an initial matter, the State argues that Ford procedurally

defaulted this issue. State prisoners must exhaust state reme-

dies as a prerequisite to a federal habeas petition.

§ 2254(b)(1)(A). To satisfy the exhaustion requirement, a

habeas applicant must “fairly present his constitutional

claims through at least one complete round of the state’s

established appellate review process.” Hicks v. Hepp, 871 F.3d

513, 530 (7th Cir. 2017) (quotation marks omitted) (citing

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). “This includes

presenting the claims to the state’s highest court in a petition

for discretionary review.” Id. The failure to do so is a proce-

dural default, which ordinarily precludes a federal court from

considering the claim. Id. at 531.

As we’ve noted, Ford did not raise Hicks’s cross-

examination of Laressa in his petition to the state supreme

court, so he indeed defaulted the issue. But procedural

default is an affirmative defense that can be lost if not proper-

ly raised. Williams v. United States, 879 F.3d 244, 248 (7th Cir.

2018). Ford argues that the State waived the defense by not

raising it in the district court. There is a potentially plausible

reason for the State’s failure to do so: Ford’s lengthy habeas

petition only briefly mentioned Laressa’s cross-examination,

and the issue was nested within a broader argument about

Hicks’s lack of preparation for trial. This framing arguably

left the State without notice that the cross-examination was a

discrete issue Ford intended to press.

But it’s not necessary to decide the waiver question; the

district judge properly rejected this claim on the merits, as the

State argues in the alternative. The judge assumed for the

22 No. 21-3061

sake of argument that it was objectively unreasonable for

Hicks to ask Laressa if Ford is “pretty vocal when he gets

upset.” Still, it’s clear based on all the evidence that her “yes”

answer was not so damaging that it affected the outcome. On

this reasoning, the district judge held that this brief, if inad-

visable, question on cross-examination was not prejudicial.

We see no flaw in this analysis.

Ford next argues that Hicks was ineffective because he

failed to put him on the stand to testify in his own defense

after telling the jury that he would. The state appellate court

rejected this claim, finding “no reason to believe that testify-

ing would have helped Ford” because his side of the story

was already before the jury in his videotaped police state-

ment. The court also noted that putting Ford on the witness

stand risked contradictory or impeaching testimony, as well

as a potentially damaging cross-examination. The court did

not specifically address the effect of Hicks’s unmet promises

that the jury would hear from Ford directly.

The district judge noted this oversight but nonetheless

held that the state court reasonably rejected the claim based

on lack of prejudice. Ford has never explained how his trial

testimony would have added to, differed from, or contextual-

ized his videotaped statement to police. Absent that explana-

tion, and accounting for the obvious risks of subjecting

himself to cross-examination, the state court’s “no prejudice”

ruling was not unreasonable.

Ford’s final contention—that Hicks was ineffective for

failing to call his sister Barbara to testify about Yolanda’s

character—is similarly meritless. First, Hicks never promised

that Barbara would testify; he merely identified her to the

jury as a potential witness. More importantly, the state appel-

No. 21-3061 23

late court determined that Barbara’s proposed character

testimony would have been inadmissible, so Hicks’s decision

not to call her as a defense witness was not objectively unrea-

sonable. Accepting as we must the state court’s interpretation

of state evidence law, see Miller v. Zatecky, 820 F.3d 275, 277

(7th Cir. 2016), the court reasonably concluded that Hicks

was not ineffective for failing to present inadmissible testi-

mony. See also Kavanagh v. Berge, 73 F.3d 733, 736 (7th Cir.

1996) (explaining that counsel’s “failure to offer inadmissible

evidence is not ineffective assistance”).

AFFIRMED