Oscar Thomas v. Marc Clements

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.