Michael Gilbreath v. Dan Winkleski

In the

United States Court of Appeals

For the Seventh Circuit

No. 20-2638

MICHAEL GILBREATH,

Petitioner-Appellee,

v.

DAN WINKLESKI, Warden,

Respondent-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 3:19-cv-00728-jdp — James D. Peterson, Chief Judge.

ARGUED APRIL 15, 2021 — DECIDED DECEMBER 30, 2021

Before KANNE, ROVNER, and HAMILTON, Circuit Judges.

ROVNER, Circuit Judge. Michael Gilbreath was convicted by

a Wisconsin jury of first degree sexual assault of a child for

repeatedly molesting his step-granddaughter, S.L., beginning

in approximately 2002 or 2003 when she was nine years old,

and ending in 2006 when she was twelve. The district court

2 No. 20-2638

granted his petition for a writ of habeas corpus on the basis of

ineffective assistance of counsel. We reverse.

I.

We presume that the factual findings of the state court are

correct for the purposes of habeas review unless the petitioner

rebuts the presumption of correctness by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1). Gilbreath has not provided

clear and convincing evidence rebutting the state court

findings and so we defer to the state court’s version of events.

Goodloe v. Brannon, 4 F.4th 445, 447 (7th Cir. 2021); Weaver v.

Nicholson, 892 F.3d 878, 886 (7th Cir. 2018). We will supplement

the state court’s recitation of the facts with undisputed facts

that provide background.

A.

From infancy, S.L. was raised by her grandmother, Patricia

Gilbreath, and Patricia’s husband, Michael Gilbreath, the

petitioner here.1 In addition to S.L., Gilbreath and Patricia had

two children of their own, Haiden, who is the same age as S.L.;

and Aaron, who is four years older than S.L. They also raised

S.L.’s half-brother, Giovanni, who is two years younger than

S.L., from the age of five. Although Gilbreath and Patricia were

her grandparents, S.L. referred to them as her parents. This

family of six lived in a small house that had two bedrooms at

the time that the assaults began. When S.L. was nine, she

shared a bedroom with all of the children in the home. She and

Haiden slept together on a futon, where they arranged them-

1

For clarity, we will refer to the petitioner as Gilbreath and will refer to

other family members by their first names.

No. 20-2638 3

selves so that S.L.’s head was even with Haiden’s feet.

Giovanni and Aaron slept in a bunk bed directly above the

girls for a year or two of the relevant time period, but later

moved to the second bedroom after a third bedroom was

created by a garage conversion. Patricia slept on a couch in the

living room, and had a direct view into the girls’ bedroom,

which was just steps away.

During the relevant time period, Gilbreath would regularly

come home drunk in the early morning hours and sometimes

go into the children’s room. Gilbreath’s nighttime visits ended

in 2006 when he was convicted of driving under the influence

and was sentenced to a term of imprisonment. In 2008, shortly

before Gilbreath was due to be released from prison, S.L., then

fourteen years old and in eighth grade, disclosed for the first

time that Gilbreath had sexually assaulted her during these

nighttime visits. S.L. first told a friend and then told a school

guidance counselor at that friend’s urging. That first disclosure

led to an investigation by social services and law enforcement.

Social worker Kelly Oleson interviewed S.L., accompanied

by Deputy Cheryl Thompson. Oleson and Thompson both

generated reports of the interview.2 Oleson wrote that S.L. told

her that Gilbreath would come into her room at 2:00 or 3:00

a.m. after a night of drinking, that he would get into the bed

and rub her stomach, and touch and rub her breast and vaginal

2

When we describe the reports of social services and law enforcement as

undisputed, we mean only that there is no dispute as to what the reports

say. We do not mean to imply that Gilbreath does not dispute the truth of

some of the statements that social services and law enforcement recorded

in those reports.

4 No. 20-2638

areas (which she indicated by gesturing). S.L. reported that this

had happened five or six times, and that the touching occurred

over her clothing. She also said that Gilbreath “used to do it

when she was younger.” S.L. said that Haiden was generally

asleep while this was happening but that Haiden had told her

that this had happened to her once too. Gilbreath would also

sometimes kiss both girls on the lips. S.L. would often pretend

to be asleep when these things were happening. At the end of

each incident, Gilbreath would leave the room and go to his

own bedroom. S.L. blushed and became embarrassed when she

told Oleson that she had not told Gilbreath to stop. She told

Oleson that Gilbreath once apologized for what he had done to

her the previous night, and that he was a different person

when he was drinking. She said that she had not told Patricia

about what had happened, that she feared her parents would

get divorced if Patricia found out, and that she did not want

Gilbreath to go to jail or have to participate in programs

because this had happened. S.L. did not think Gilbreath would

do this again unless he began drinking again. When asked if

anyone else knew what had happened, S.L. reported that she

once told Aaron and that he had replied that she should tell

him if it happened again and he would do something about it.

She had also told the friend who encouraged her to go to the

guidance counselor, Aaron’s best friend Dustin, and her cousin

Kayla. Deputy Thompson’s report largely tracked that of

Oleson in all of the relevant details, including a note that S.L.

didn’t want “anything big” to happen to Gilbreath such as

additional jail time, that she just wanted him to not do this

again. After concluding the interview with S.L., Oleson

interviewed Haiden. According to Oleson’s report of that

No. 20-2638 5

interview, Haiden reported that Gilbreath had kissed her “like

a boyfriend.” As a result of the 2008 investigation, Patricia was

asked to put a lock on the door of the girls’ bedroom and to

keep Gilbreath away from S.L.

In 2010, S.L., then sixteen years of age, again raised

allegations of the pre-2008 abuse with a school counselor, and

she was again interviewed by social services and law

enforcement. Oleson conducted the social services interview

for this second disclosure, accompanied this time by

Investigator Mark Bitsky of the county sheriff’s office.

According to Oleson’s report, S.L. said she was getting into

trouble with her parents, and that Gilbreath was calling her

abusive and degrading names and threatening to hit her. He

compared her unfavorably to her biological mother (Patricia’s

daughter) and threatened to punch her in the face. She had a

boyfriend named Robert whom Gilbreath did not like.

Although Gilbreath would not allow her to date, she was

sometimes allowed to visit Robert at his home. S.L. told Oleson

that she often hid out in her bedroom because of Gilbreath’s

poor treatment of her. S.L. reported that Gilbreath used very

vulgar and inappropriate language with her and sometimes

with Haiden regarding his sex life and his past sexual

encounters; he also told S.L. that he no longer had sex with

Patricia. Oleson’s report described Gilbreath’s remarks to S.L.

as “graphic and inappropriate for a parent to be having with

their child.” R. 7-4, at 2. S.L. was concerned that Gilbreath

might have started drinking again. She was also concerned

because he had begun to come into her bedroom again at night,

and she feared he would act as he had before going to prison

in 2006. Oleson noted that S.L. had engaged in self-harm by

6 No. 20-2638

cutting her skin and also by burning her skin with chemicals.

S.L. reported that Gilbreath was angry about the cutting

behavior. Her boyfriend, Robert, also engaged in cutting, and

her parents blamed Robert for S.L.’s self-harm.

S.L.’s second disclosure, like her first, addressed conduct

that occurred when she was between nine and twelve years of

age. She denied that Gilbreath committed any new offenses

after his 2008 release from prison. But during the second

disclosure, Oleson reported that S.L. described more frequent

instances of abuse in the original time period of 2002 or 2003 to

2006. For example, she described certain abuse as occurring

more times than she could count, and then estimated that it

occurred twenty times. S.L. also gave graphic accounts of

particular incidents, telling Oleson that Gilbreath had regularly

touched her genital area beneath her clothing (hereafter “the

nighttime abuse”), including a specific incident that occurred

in his bedroom; that he had caused her to touch his genitals

directly (hereafter “the masturbation incident”); and that he

had engaged in other abuse that occurred while he was bathing

her at a young age (hereafter “the bathtub incident”). These

allegations were more detailed than those that she had made

two years earlier, at the age of fourteen. Oleson characterized

the second disclosure as “more descriptive” than the interview

in 2008, but noted that “many [sic] of the surrounding detailed

information was identical.” R. 7-4, at 4. S.L. told Oleson and

Bitsky that she did not want them to talk to Gilbreath or

Patricia because she feared her mother would be angry with

her. She reported that the entire family was angry with her

after her 2008 disclosure. Oleson also interviewed Haiden

again who this time told Oleson that she was “the lucky one.”

No. 20-2638 7

Oleson halted Haiden’s interview when she became very

upset.

Bitsky requested that Oleson arrange a forensic interview

at Safe Harbor, a child advocacy center in Madison, Wisconsin.

The Safe Harbor interview, which was recorded and

transcribed, largely tracked the second interview with Oleson,

but in greater detail. Because the second interview with Oleson

was largely consistent with the forensic interview, we will refer

to these jointly as the second disclosure. According to Bitsky’s

report of the forensic interview, S.L. described certain

recurring nighttime abuse as taking place two to three times a

week, but she had difficulty “singling out each event.” R. 7-7,

at 2. In describing the regular incidents of nighttime abuse, S.L.

reported that Gilbreath would remove her bottom clothing and

directly touch her genitals. She also described three particular

incidents that differed from the usual nighttime abuse. In

addition to an incident of nighttime abuse that occurred in

Gilbreath’s bedroom rather than her own, she described two

incidents of particular conduct that were different from the

regularly occurring abuse. The first incident, the bathtub

incident, involved Gilbreath getting into the bathtub with her

while they were both naked, and having him place her, in a

seated position, on top of his penis. She did not recall anything

more specific from that incident. She believed this was the

beginning of the abuse, and said that she was very young

when it happened, too young to bathe herself. She also

described the masturbation incident in detail, but could not

recall how the masturbation incident ended. She believed it

was the last incident of abuse prior to Gilbreath’s arrest for

drunk driving in 2006. S.L. repeated to the forensic interviewer

8 No. 20-2638

that Gilbreath called her vulgar names, that he had not abused

her since being released from prison, that Gilbreath had

inappropriate and graphic conversations with her about his sex

life, that she believed he had abused Haiden on one occasion,

and that Gilbreath had twice apologized to her for the abuse,

once before he went to prison and once after he came home

from prison.

The record does not reveal why S.L.’s first disclosure did

not lead to criminal charges against Gilbreath, but the second

disclosure resulted in Gilbreath being charged with first degree

sexual assault of a child. After S.L. made the second disclosure

to Oleson and Bitsky and before the forensic interview,

Gilbreath was arrested3 and Patricia placed S.L. in foster care.

B.

With this background in place, we turn to the evidence

produced at trial. The State’s primary witness at Gilbreath’s

three-day jury trial was S.L., who was then twenty years old,

married and the mother of a child. The State also presented

testimony from Ann McKinley (an expert on child sexual

abuse), Patricia and Haiden. Gilbreath testified on his own

behalf and was the only witness presented in the defense case.

At trial, S.L. testified that, when she was a child, Gilbreath

came into her room drunk late at night and touched her breast

and genital areas under and over her clothing. Consistent with

her second disclosure, she said that it happened many times

3

It appears that Gilbreath was taken into custody on a probation violation

involving the use of alcohol. He was later charged with abuse of S.L., but

faced consequences for the probation violation in the interim.

No. 20-2638 9

but could not give a definitive number. She also testified

regarding three specific incidents, namely, the instance of

nighttime abuse that occurred in Gilbreath’s room, the

masturbation incident and the bathtub incident consistent with

the second disclosure. She said that, during the time period

when the abuse was occurring, she told her cousin Kayla, and

Aaron what was happening. In the case of Kayla, she tried to

spell the word “molest” on a piece of paper, and Kayla replied

that it was “gross,” that she would not go near Gilbreath again.

She testified that when she told Aaron that Gilbreath was

touching her inappropriately, he replied that if it happened

again, she should tell him and he would do something about

it. She also described telling the friend who encouraged her to

report it, and the guidance counselor whom she told as a

result. She testified that she did not go into detail about the

abuse during the first disclosure because she was

uncomfortable and did not understand some of terms. She

described Gilbreath’s verbal abuse after he returned from

prison, and testified that when she was 15 or 16, Gilbreath cut

up her temporary driver’s license. She denied delinquent

behavior or being suspended at school. She admitted that she

cut and burned herself during that time period, explaining that

she did so in part to make herself unattractive to Gilbreath.

Asked what caused her to disclose the abuse for a second

time in 2010, she replied that she “was scared [of] what was

going to happen,” that “everything started kind of going south

where, you know, my license got tore up, and I was getting

yelled at all of the time.” R. 6-10, at 137. She implied that she

was getting bad grades at that time and said that she was

getting yelled at for things she had not done. After the second

10 No. 20-2638

disclosure, Patricia was angry with her and accused her of

lying, and Haiden would not speak to her. Shortly after the

second disclosure, social services removed her from the home

and she was placed in foster care. Asked if she had ever made

a written account of what happened to her, S.L. testified that

she wrote a letter to her counselor, who thought that the

writing exercise might help her cope with what had happened.

On cross-examination, defense counsel established that S.L.

saw Gilbreath as the disciplinarian in the home, that he was the

one to ground the children or take away privileges. S.L. also

agreed that Gilbreath had “more to say” about the girls’

relationships with boys. Counsel then turned his attention to

the letter that S.L. said she had written to her counselor. In

response to defense counsel’s questions, S.L. confirmed that

she wrote the letter on her own in response to her counselor

telling her to write down everything she remembered; that she

typed it on a computer, chose the font and formatting, and

printed it out; and that she wrote it when she was still in high

school. Defense counsel then asked:

And when you were doing that, were you trying to

write out as best you could what you remembered

happening so that you could address that with your

counselor, correct?

R. 6-10, at 156. S.L. replied, “Correct.” In response to

questioning, she indicated that she wrote the letter in

approximately an hour. Her foster mother later provided it to

the prosecution.

After going through the layout of the small house and

having S.L. identify various locations, defense counsel then

No. 20-2638 11

brought forth a number of letters and asked S.L. if she had

written the letters to Gilbreath while he was in prison. After

saying that she did not recognize any of the letters, she

eventually conceded that, although she did not remember

writing any of the letters, she may have forgotten and so could

not say for certain that she did not write a particular letter.4

Counsel then attempted to impeach S.L. with Oleson’s initial

report from the first disclosure. Counsel pointed out that S.L.

reported to Oleson that the touching occurred over her

clothing and that it had happened five or six times. S.L.

testified that she did not remember being asked about the

number of times the incidents occurred, and also did not

remember being asked for details at that first interview. Nor

did she recall saying that the incidents occurred five or six

times, or that the touching occurred only over her clothing.

Counsel then attempted to further impeach her with a

statement she had made under oath at a preliminary hearing

two years before the trial. At the preliminary hearing, she was

also asked about whether she had told Oleson at the initial

disclosure that Gilbreath touched her only over her clothing.

At the preliminary hearing, S.L. denied telling Oleson that the

touching occurred only over her clothing. At the trial, she

confirmed that this would still be her answer, despite what

4

Defense counsel attempted to establish that S.L. sent Gilbreath letters

when he was in prison where she expressed a strong desire to have him

home again. He argued that the letters demonstrated that S.L. did not fear

Gilbreath’s return from prison, as she claimed. The prosecution sought to

show that the letters were forgeries. Although there is no way to know what

the jury made of the letters, the trial court determined during sentencing

proceedings that the letters were forged. R. 6-16, at 31.

12 No. 20-2638

was written in Oleson’s report. In response to the direct

question, “So if [the interviewers] wrote that, they were

mistaken?”, S.L. replied, “Yes.” R. 6-11, at 186–87.5

Counsel then returned to the letter S.L. wrote to her

counselor, and on this subject, he had even more success, so

much so that he was later stunned by the jury’s verdict. We

will describe this impeachment in detail because it was critical

to counsel’s decisions at trial. S.L. first confirmed that she had

not seen the letter for years. Counsel then pointed out that the

letter said that Gilbreath would barge into her room between

midnight and three in the morning with no clothes on

(contrary to her trial testimony that he would enter the room

wearing a robe and underwear). S.L. did not remember writing

that he came in naked, she denied that it had ever happened

that way, and she confirmed that she recalled him wearing a

robe.

Counsel than brought up a number of statements in the

letter to the counselor that S.L. confirmed were not true and

denied writing in the letter that she had just admitted writing.

5

Defense counsel’s attempt to impeach S.L. was somewhat confusing until

he handed her a transcript of her prior testimony. Until that point, neither

S.L. nor the presiding judge understood what he was asking. The confusion

cleared once the transcript was provided. S.L. then gave the answer that

defense counsel sought, namely that she disagreed with Oleson’s report.

She denied that she had said at the initial disclosure interview that the

touching incidents all occurred over her clothing. She said that Oleson was

mistaken if that was what she wrote. That meant that, although her trial

testimony was consistent with her testimony at the preliminary hearing, it

conflicted with the contemporaneous report generated by Oleson, a

disinterested third party who interviewed her close in time to the incidents.

No. 20-2638 13

For example, the letter stated that, during the masturbation

incident, Gilbreath ejaculated on her bed. She did not

remember writing that to the counselor, and confirmed that

she did not recall how the masturbation incident ended. She

also did not remember writing more details regarding the

bathtub incident, and agreed that the bathtub incident did not

happen the way it was described in the letter to her counselor.

She confirmed that she remembered nothing about the bathtub

incident other than Gilbreath sitting her on his lap in the tub

when they were both naked. She also denied writing that she

said nothing to Gilbreath while this was happening because he

would beat her, testifying that she had not written this and that

it was untrue. She denied writing that the abuse went on every

night for four to five years, and also denied that the abuse went

on for that long, explaining that Gilbreath was in prison for

some part of that time period. She insisted that she would not

have put something in the letter that was not true. Asked how

all of this incorrect content got into the letter, she said she did

not know, that she gave the letter to her foster mother and did

not know what happened to it after that. She also said that her

foster mother would not have altered the letter.

She denied writing that, after her secret was out (after the

first disclosure), she became a “wild child” for two years,

doing what she wanted and that no one could tell her what to

do. She denied writing that she was cutting and burning

herself, but agreed that it was true that she was cutting and

burning herself in that time period. She denied writing other,

less material statements in the letter, some of which she agreed

were true and some of which she testified were not true.

Defense counsel asked if she lied to her counselor in these

14 No. 20-2638

statements, and she replied, “I did not lie to my counselor.” R.

6-11, at 202. She also denied typing most of the letter that she

had just testified that she typed, saying, “No. Most of the stuff

in here, I did not type, because it’s not true.” R. 6-11, at 202.

There is no dispute that the letter to the counselor contained all

of the statements that S.L. first affirmed that she wrote and

then moments later denied that she wrote. And there is no

dispute that this version of events was a significant departure

from the versions she reported at the first and second

disclosures.

Counsel concluded his cross-examination of S.L. with

questions about whether she reported at the second disclosure

having “tension and disputes” with Gilbreath. S.L. did not

recall saying those things to the interviewers at the second

disclosure. Nor did she recall telling the interviewers that

Gilbreath and Patricia did not like her boyfriend Robert and

tried to cut her off from him. She also did not remember saying

at the second disclosure that Gilbreath was yelling at her

almost every day. She did remember Gilbreath tearing up her

driving permit, and admitted she was angry because she had

paid for driver’s education and the permit by herself with

money she earned from work, and because it delayed her

ability to drive. She agreed that she was “pretty unhappy,

angry even,” when Gilbreath did this. She could not recall

when this occurred in relation to the second disclosure.

The prosecutor attempted to rehabilitate S.L. on re-direct,

trying to recast the letter to the counselor as representing

emotional truth rather than factual truth. S.L. eventually

agreed that the letter was meant to express emotional truth.

She explained that she had significant mental health issues

No. 20-2638 15

after she was removed from the Gilbreath home following the

second disclosure, suffering from depression to the point of

suicidal thoughts. It was during that time frame that she was

in counseling and would have written this letter, and agreed

that her memory of writing parts of the letter could have been

impaired by the emotional distress she was suffering at that

time. On re-direct, S.L. also explained that in her first

disclosure interview, it was difficult to tell Oleson and

Thompson that the abuse occurred both under and over her

clothing. She confirmed that the interviewers showed her a

diagram of an unclothed human body in order for her to

identify where she had been touched. By pointing to areas of

the unclothed body in the diagram, she believed she had

conveyed in the first disclosure that she was touched under

and over her clothing. On re-cross, she continued to deny

having written anything that was factually untrue, and could

not explain the erroneous contents of the letter to her

counselor.

The prosecution next presented Haiden and Patricia.

Haiden did not recall telling Oleson that Gilbreath kissed her

like a boyfriend but agreed that, because the interview

occurred a long time ago, it was “maybe” possible that she said

it. Haiden testified that Gilbreath called S.L. a “bitch,” and said

he also called the other children names when he was angry.

Haiden confirmed that Gilbreath sometimes came into the

girls’ bedroom at night. Although she was usually sleeping

when he came in, she recalled that he would say goodnight

and hug them. She would not fall asleep again until he left. She

denied telling Oleson in 2010 that she did not know what

happened when Gilbreath would come into the room at night

16 No. 20-2638

because she would roll over. Shown Oleson’s report of her

2010 interview, Haiden said that her memory was not

refreshed. She did recall crying at the interview, agreeing that

the interview was difficult for her and that it ended because

she was upset. She did not recall telling Oleson that she was

“the lucky one.” R. 6-12, at 257. She conceded that it was

possible that she told Oleson that she was the lucky one

because she was “really confused then.” R. 6-12, at 258. Haiden

also confirmed that Gilbreath had inappropriate conversations

with his children about his sex life, including discussions about

receiving oral sex. She recalled being fifteen or sixteen during

the conversation about oral sex.

On cross-examination, Haiden recalled Gilbreath visiting

the room but not getting between the girls on the futon bed;

instead he “either sat on our bed or laid on our bed

somewhere.” R. 6-12, at 265. Haiden also testified that

Gilbreath talked about his sexual escapades in front of S.L.,

Giovanni and herself, and that they would laugh when he said

these things.

Patricia testified that she found out about S.L.’s second

disclosure only after calling Bitsky to find out why Gilbreath

had been arrested. Patricia met the next day with Oleson and

asked her to remove S.L. from the home because she did not

want her around and was “done with her.” R. 6-12, at 293. As

for S.L.’s boyfriend Robert, Patricia testified that S.L. was

allowed to visit him at his home when his parents were present

but was not allowed to stay overnight. Patricia denied that S.L.

was a “problem child,” but said that, beginning at the ages of

fourteen or fifteen, she did not want to be told what to do

anymore, that she “wanted to come and go,” and wanted to

No. 20-2638 17

date. R. 6-12, at 300. But they did not allow her to stay out late

and required her to let them know where she was. Patricia

confirmed that S.L. was never suspended or expelled from

school; nor was she ever in juvenile court. Asked if it was her

belief that S.L. disclosed the sexual assault because there were

restrictions and she did not want to follow the rules, Patricia

replied, “Well, her license was cut up and stuff like that. She

wanted to go and do what she wanted to do, and she couldn’t

do that.” R. 6-12, at 302. The prosecutor then asked what the

problem was when S.L. was fourteen that Patricia believed

caused her to retaliate by alleging sexual assault (at the time of

the first disclosure), and Patricia responded, “I don’t know.”

R. 6-12, at 302.

Patricia conceded that Gilbreath was harder to deal with

when he was drunk and became “cocky.” R. 6-12, at 306. At

those times, she would not talk to him. She testified that he

went out drinking once or twice a week. She confirmed that,

when he came home drunk, he would sometimes go into the

girls’ rooms, where she could see him from the couch where

she slept. He sometimes lingered there long enough for her to

ask him what he was doing. She said that he sat on the floor in

the girls’ room, and that although she was a light sleeper, it

was possible that she fell back asleep on occasion when he was

in the girls’ room.

Rather than calling Oleson as a witness, the parties agreed

to two stipulations regarding Oleson’s reports. The prosecution

read the following stipulation to the jury:

If called to testify, Social Worker Kelly Oleson

would testify that, at one point in the interview of

18 No. 20-2638

Haiden Gilbreath on June 2, 2010, Haiden stated,

quote, “I was the lucky one.”

R. 6-13, at 6. Defense counsel told the jury:

[T]he defense notes that it’s the agreement of the

parties that were Kelly Oleson called to testify,

that—about the interview of [S.L.], January 26 of

2008, that [S.L.] was asked how many times the

touching had occurred. And she stated, “Five or six

times.”

R. 6-13, at 6. That concluded the prosecution’s case-in-chief.

Gilbreath then testified in his own defense. He conceded

that he had eight convictions for driving under the influence,

and asserted that May 11, 2006, the day of his last arrest for

drunk driving, marked the last time he consumed alcohol. He

also admitted that on certain occasions prior to that May 2006

arrest, when he was on probation after serving time in jail for

driving under the influence, he violated the conditions of his

probation by continuing to drink alcohol.6 He testified that

during his last period of custody (from 2006 to 2008), he

decided to stop drinking and entered an alcohol treatment

program at an inpatient facility.

Shortly before his release from prison in 2008, he learned

from his wife that S.L. had accused him of sexual abuse. He

6

On cross-examination, he admitted that he drank in violation of his

probation conditions when on release after a drunk driving offense in 2004.

He testified that although he was going to bars once or twice a week during

that time, he was not caught, and he agreed that Patricia, Haiden and S.L.

covered for him during that time. R. 6-13, at 114–16.

No. 20-2638 19

testified, “I swallowed my heart,” when he heard this, and

could not believe that S.L. “would lie about me sexually

assaulting her.” R. 6-13, at 71. He admitted that he came home

drunk late at night four or five times a month,7 and that he

infrequently8 went into the girls’ room in that condition. He

testified that he also went into his sons’ room when he came

home drunk, because he missed his children. He explained that

when he went into the children’s rooms, he would smoke a

cigarette, drink a glass of water, say goodnight, tell the

children he loved them, and say prayers with them. He

testified that he stayed in the rooms for five minutes or less.

Counsel led Gilbreath through the small layout of the house,

the sleeping arrangements, the lighting at night, and the

improbability that a grown man could get into a small futon

with two children without Patricia or Haiden noticing that he

was there. Gilbreath denied climbing on the futon with the

girls during nighttime visits.9

He described himself as the principal disciplinarian of the

family, imposing punishments that included grounding,

7

On cross-examination, he said he went to bars once or twice a week,

sometimes more and sometimes less. R. 6-13, at 108.

8

On cross-examination, he called his visits to the girls’ room “rare,”

claiming that although it was important to him to say good night to his

children and although he came home drunk once or twice a week, he went

into the girls’ room at night only a “couple times” throughout their entire

childhood. R. 6-13, at 109–10.

9

He conceded on cross-examination that he did lay on the futon with his

children during the day, but claimed he was never on the futon with both

S.L. and Haiden at the same time. R. 6-14, at 134–35.

20 No. 20-2638

chores, spanking, and writing out the alphabet. Asked if the

girls had behavioral problems that required discipline before

he went to prison in 2006, Gilbreath replied, “Not so much the

girls.” R. 6-13, at 90. Asked about behavioral problems among

the children after he was released from prison in 2008,

Gilbreath testified that S.L. was constantly lying, going places

other than where she said, not coming home on time, and not

calling. He imposed discipline but she continued to break his

rules. At one point, as a result of her lying, he decided to cut

her driver’s permit in half because he did not trust her driving

on his insurance. S.L. cried when he cut the permit in half. He

also was “a little bit” concerned about her relationship with

Robert, and had placed restrictions on the times and places that

she could be with him. R. 6-13, at 102. S.L. argued with him

over the restrictions. Asked about his relationship with S.L.

during that time, Gilbreath responded, “In that time frame, me

and [S.L.] were fine. Me and [S.L.] got along just fine.” R. 6-13,

at 103. In clarifying the time frame, Gilbreath explained that he

and S.L. were “fine until I cut her license in half. And then she

began to somewhat isolate. We got along.” R. 6-13, at 103. As

for the timing of cutting up the permit, Gilbreath believed it

No. 20-2638 21

was a week or two before he was taken into custody in 2010.10

R. 6-13, at 104.

Gilbreath testified that he was interviewed by law

enforcement after each of S.L.’s disclosures. When he was

released from prison in 2008, he voluntarily spoke to detectives

about S.L.’s allegations. He told them that it did not happen

and he did not know why she would make such accusations.

Two years later, he was taken into custody for two months on

a report that he had been drinking and driving in violation of

his probation conditions. He denied that he had been drinking,

and admitted only that, although he was not permitted by the

conditions of his probation to go to bars, he had done so in

order to pick up his children from work.11 During this two-

10

There was some confusion in the record on the timing of the driver’s

permit incident. On cross-examination, Gilbreath agreed that he cut up

S.L.’s permit in the spring of 2008, approximately two years before the

second disclosure. R. 6-14, at 129. In closing arguments, the prosecutor

corrected what she characterized as a math error in her claim that two years

transpired between the permit incident and the second disclosure; she

asserted instead that one year and one month passed between the permit

incident and the second disclosure. R. 6-14, at 164. The jury was

admonished that the attorneys’ statements were not evidence. R. 6-14, at

148.

11

Cutting an exceedingly fine distinction, Gilbreath testified that he was

prohibited from entering bars or taverns, which he understood to mean

businesses that earned income mainly through selling alcohol. His children

worked at a resort which he thought he was allowed to enter. He admitted

to “hang[ing] out” at the resort “[a] little bit,” but denied drinking while he

was there. R. 6-13, at 97. Nevertheless, when released after the two-month

incarceration, he was required to report in to probation by phone at certain

(continued...)

22 No. 20-2638

month incarceration, Bitsky interviewed him regarding S.L.’s

second disclosure. He told Bitsky that he was innocent, and

that he had nothing to say about something that did not

happen. The defense rested at the close of Gilbreath’s cross-

examination.

C.

The jury made short work of the case, retiring to the jury

room at 4:35 p.m. on a Friday afternoon, and returning with

the verdict of guilty at 6:05 p.m. The court sentenced Gilbreath

to ten years in prison, to be followed by fifteen years of

extended supervision. In a post-conviction motion, Gilbreath

sought a new trial on two grounds: in the interest of justice

because the real controversy of S.L.’s credibility was not fully

tried; and due to ineffective assistance of counsel.12 There was

considerable factual overlap between the two issues raised.

The same judge who presided over the trial held a hearing on

Gilbreath’s motion at which defense counsel testified

extensively regarding his representation of Gilbreath at trial.

We will discuss counsel’s testimony below. The court also

heard testimony from Aaron, Haiden, Giovanni, Kayla, Kayla’s

mother Dawn (who is Gilbreath’s sister), Gilbreath and

Patricia. The court denied the motion for a new trial, rejecting

11

(...continued)

times and submit to Breathalyzer tests. A jury could infer from this that

probation suspected that he was in fact drinking again.

12

Gilbreath raised additional issues on the post-conviction motion that are

not relevant to the issues on appeal. The court denied relief on those claims

as well.

No. 20-2638 23

both grounds. In rejecting the statutory claim that the real

controversy of S.L.’s credibility was not fully tried, the court

noted that the defendant bore the burden of demonstrating a

substantial probability that a new trial would produce a

different result. See Wis. Stat. § 752.35. The court found that the

jury did in fact hear evidence on every one of the topics raised

by Gilbreath. The court dismissed the need for “new witnesses

or more witnesses saying the same thing,” characterizing the

proposed evidence as “just old wine and new bottles.” R. 6-16,

at 18. The court characterized the omitted evidence as

repetitive and cumulative, and concluded that Gilbreath did

not demonstrate a substantial probability that a new trial

would produce a different result.

The court also rejected the motion for a new trial based on

ineffective assistance of counsel. Gilbreath asserted that

counsel was ineffective because: (1) he did not object on

hearsay and confrontation grounds when S.L. testified that she

reported the assaults to family members and they responded

with supportive statements; (2) he failed to impeach S.L. with

prior inconsistent statements regarding the nature of the

assaults and her motive to lie; (3) he did not present family

witnesses who could have contradicted S.L.’s testimony and

corroborated a motive to lie; (4) he did not present numerous

witnesses regarding S.L.’s character for truthfulness; (5) he

failed to present evidence on the authenticity of letters

purportedly written by S.L. to Gilbreath when he was in

prison;13 and (6) he failed to investigate the existence of an

13

This issue was raised in relation to a request to vacate the sentence and

(continued...)

24 No. 20-2638

audio recording of S.L.’s 2010 second disclosure interview with

Oleson and Bitsky.

In assessing defense counsel’s testimony regarding his

strategy and trial decisions, the court remarked that the

transcript “should be required reading in every law school trial

practice class.” R. 6-16, at 25. Although some of counsel’s

tactics did not work out the way he thought they would, his

decisions were rational and based on the law and the facts, the

court found, noting that counsel had “sound reason[s]” for the

trial strategy decisions that he made. Id. In particular, he used

third party witnesses to impeach S.L.’s testimony and also

impeached her with prior inconsistent statements. He

presented evidence regarding the crowded physical layout of

the house and the close proximity of witnesses who saw and

heard nothing amiss. He made clear that once he impeached

S.L. regarding the letter to her counselor, he made a conscious

decision that more impeachment, more evidence regarding her

mental health, and more testimony about her character for

untruthfulness was not only unnecessary but would have

blunted the effect of what he accomplished in that cross-

examination. Counsel testified that his cross-examination of

S.L. was better than he could have ever hoped it would be, and

13

(...continued)

re-sentence Gilbreath because the court purportedly relied on incorrect

information when it concluded that the prison letters from S.L. were forged.

The court rejected the claim that additional witnesses on the origin of the

letters would have changed his conclusion that the letters were forged.

During the post-conviction hearing, the court reiterated its finding that the

letters purportedly written by S.L. to Gilbreath while he was in prison were

forged. R. 6-16, at 31–34.

No. 20-2638 25

the court agreed with that assessment. Indeed, the judge

remarked, “I thought [S.L.] had been cut to pieces.” R. 6-16, at

26. According to the judge (recall, this was the same judge who

presided over the trial), counsel “got [S.L.] to, in my

view—obviously not in the jury’s view—but in my view, kind

of self-destruct.” R. 6-16, at 27. The cross-examination on the

letter to the counselor was effective enough to cause the court

to characterize the case as “enough … to go to the jury, but it

certainly wasn’t a real strong case.” R. 6-16, at 26. With regard

to the witnesses called and the testimony given at trial, the

court could not conclude that counsel’s performance fell

outside the wide range of competent professional services

taken as a whole.14 The court’s only area for concern was

counsel’s failure to realize that Oleson’s 2010 report indicated

that Bitsky had recorded the interview. Because he did not

notice that note in Oleson’s report, he did not seek the

recording for possible use at trial. The court had already

concluded in analyzing the “real controversy” motion that,

despite that notation, such a recording did not exist at the time

of trial and did not exist at the time of the post-conviction

hearing, so counsel’s error had no effect on the outcome. R. 6-

16, at 14, 29. In the end, the court concluded that counsel’s

performance was not deficient and that Gilbreath had not been

prejudiced by any of counsel’s claimed errors or omissions.

14

In considering Gilbreath’s claim that defense counsel should have

presented additional witnesses, the court found as a factual matter that

Aaron was unavailable to testify at Gilbreath’s trial because he was on

probation in Colorado and was prohibited from leaving the state at that

time. R. 6-16, at 15. Gilbreath makes no effort in this appeal to demonstrate

that the court’s factual finding was erroneous in any way.

26 No. 20-2638

The Wisconsin Court of Appeals affirmed the trial court’s

ruling. The court noted that, at the post-conviction hearing,

various members of the Gilbreath family testified that they

believed that S.L. had a character for untruthfulness, and that

none of them had ever witnessed the alleged assaults despite

being in close proximity in the small house. In rejecting the

statutory claim that the real controversy of S.L.’s credibility

had not been fully tried without this additional evidence, the

court cited State v. McAlister, 911 N.W.2d 77 (Wis. 2018), and

concluded that the evidence Gilbreath sought to introduce was

simply new impeachment material of the same general

character as impeachment evidence produced at trial, and was

therefore cumulative. That evidence included testimony from

Aaron and Kayla denying that S.L. ever disclosed the assaults

to them; evidence that S.L. had behavioral problems and that

Gilbreath interfered with her dating life; evidence that S.L. said

in her 2008 first disclosure interview that the touching

occurred only over her clothing and that she said nothing at

that time about the three specific assaults that she described at

trial; testimony by Aaron, Giovanni, Kayla and Haiden

challenging S.L.’s credibility; testimony from family members

regarding S.L.’s motive to lie in 2008 and regarding her

behavioral problems and motives in 2010 at the time of the

second disclosure; and evidence that undermined S.L.’s claim

at trial that she did not recall sending certain letters to

Gilbreath when he was in prison. The court of appeals held

that none of this omitted evidence warranted a new trial on the

statutory claim.

Turning to the claim that counsel was ineffective for failing

to investigate and present certain impeachment evidence, the

No. 20-2638 27

court of appeals concluded that Gilbreath suffered no prejudice

from counsel’s decisions because all of the evidence that he

wanted counsel to present was merely cumulative and would

not have changed the outcome of the trial. In a footnote, the

appellate court also concluded that counsel’s performance was

not deficient, summarily affirming the decision of the post-

conviction court as being consistent with the record and the

law. In addition, the court found that after causing S.L. to

“kind of self-destruct” on the stand, “counsel’s decision to stop

impeachment when he did, and not to call additional witnesses

to further impeach S.L. ‘on the same topic,’ was a reasonable

trial strategy under the circumstances, because trial counsel

could reasonably have determined that doing otherwise would

have weakened Gilbreath’s case.” State v. Gilbreath, 2018 WL

2347126, *4 n.5 (Wis. Ct. App. May 24, 2018).

After the Wisconsin Supreme Court denied Gilbreath’s

petition for review, he brought his federal habeas petition,

which the district court granted. Gilbreath v. Winkleski, 476

F. Supp. 3d 804 (W.D. Wis. 2020). Because our review of that

decision is de novo, we will only briefly sketch the district

court’s ruling. The court found that counsel was ineffective

and that the state appellate court’s decision affirming the

conviction was unreasonable. The court focused on counsel’s

alleged failures to investigate and present evidence that could

have corroborated Gilbreath’s testimony, further undermined

S.L.’s credibility, and provided a motive for S.L. to lie at the

time of her first disclosure in 2008. The court found that the

failure to present certain evidence was due not to strategic

decisions during trial but to a failure to investigate before trial.

The court found counsel’s explanations for why he made

28 No. 20-2638

certain decisions “not plausible” and concluded that many of

counsel’s decisions not to impeach S.L. with prior inconsistent

statements were based on inadvertence or neglect rather than

strategy. The court found that these various failures prejudiced

Gilbreath because the proposed evidence would have been

corroborative, not merely cumulative, and could have changed

the outcome in this credibility contest. The court also found

that the state court engaged in an unreasonable application of

Strickland when it applied state rather than federal law in

determining that the evidence was merely cumulative instead

of corroborative. Under federal law, the evidence would be

considered corroborative, according to the district court, and

because the case was close, the errors had a “reasonable

chance” of affecting the outcome. The district court therefore

granted the writ, and the State of Wisconsin now appeals.

II.

On appeal, the State contends that the Wisconsin Court of

Appeals neither unreasonably applied the law as set forth in

Strickland nor relied on an unreasonable determination of the

facts when it concluded that counsel was not deficient and that

Gilbreath suffered no prejudice from the failure to present

evidence that it determined was cumulative. We review the

district court’s grant of Gilbreath’s habeas petition de novo.

Goodloe, 4 F.4th at 448; Mosley v. Butler, 762 F.3d 579, 587 (7th

Cir. 2014).

Because this appeal is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), we give great

deference to the state court. Goodloe, 4 F.4th at 448–49. Where

the state court has made a decision on the merits, we may

No. 20-2638 29

grant relief only if that decision was “contrary to, or involved

an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,” or

“was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97–98

(2011); Goodloe, 4 F.4th at 449. In making out a claim for

ineffective assistance of counsel:

First, the defendant must show that counsel’s

performance was deficient. This requires showing

that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the

defendant by the Sixth Amendment. Second, the

defendant must show that the deficient performance

prejudiced the defense. This requires showing that

counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is

reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). When a claim

of ineffective assistance is assessed in the context of a habeas

proceeding, the “pivotal question is whether the state court’s

application of the Strickland standard was unreasonable. This

is different from asking whether defense counsel’s

performance fell below Strickland's standard.” Richter, 562 U.S.

at 101. Section 2254:

preserves authority to issue the writ in cases where

there is no possibility fairminded jurists could

disagree that the state court’s decision conflicts with

[the Supreme] Court’s precedents. It goes no further.

30 No. 20-2638

Section 2254(d) reflects the view that habeas corpus

is a “guard against extreme malfunctions in the state

criminal justice systems,” not a substitute for

ordinary error correction through appeal. As a

condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state

court’s ruling on the claim being presented in

federal court was so lacking in justification that

there was an error well understood and

comprehended in existing law beyond any

possibility for fairminded disagreement.

Richter, 562 U.S. at 102–03. Because the standards created by

Strickland and section 2254(d) are both highly deferential,

“when the two apply in tandem, review is ‘doubly’ so.” Richter,

562 U.S. at 105.

A.

Gilbreath argues that he was denied the effective assistance

of counsel when his trial lawyer failed to: (1) investigate S.L.’s

claims that she disclosed the assaults to Aaron and Kayla,

neglecting to interview them or present their testimony;

(2) impeach S.L.’s testimony denying her motive to lie with her

prior statements discussing her behavioral problems and

Gilbreath’s interference with her dating life; (3) impeach S.L.

with inconsistencies between the statements she made in the

first disclosure and her testimony at trial, and with her failure

to mention at the initial disclosure any of the three specific

instances of abuse she testified to at trial; (4) investigate

witnesses and present testimony from family members

corroborating Gilbreath’s version of events and establishing

No. 20-2638 31

S.L.’s character for dishonesty; and (5) present evidence

regarding S.L.’s motive to lie at the time of the first disclosure

or regarding S.L.’s behavioral problems leading up to the

second disclosure.15 To establish deficient performance, a

person challenging a conviction must show that counsel’s

representation fell below an objective standard of

reasonableness, applying a strong presumption that counsel’s

representation was within the wide range of reasonable

professional assistance. Richter, 562 U.S. at 104; United States v.

Best, 426 F.3d 937, 945 (7th Cir. 2005) (review of the attorney’s

performance is highly deferential and reflects a strong

presumption that counsel’s conduct falls within the wide range

of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances,

the challenged action might be considered sound trial

strategy).

We begin with the question of whether counsel was

deficient, and more specifically with the question of whether

the state court’s application of the Strickland standard on

15

As the State of Wisconsin noted in its reply brief, Gilbreath’s habeas

claims have changed over time. At the time of the post-conviction hearing,

Gilbreath withdrew multiple claims of deficiency including several that he

brings on appeal now. Some of these issues overlapped factually with

Gilbreath’s statutory “real controversy” claim and so the factual record was

developed in the Wisconsin courts. In the interests of simplifying the case,

the State elected on appeal to withdraw its claims of procedural default for

those issues. However, as the State notes, Gilbreath’s withdrawal of those

claims in the post-conviction court led the court to not make findings or

legal conclusions on those claims in the context of ineffective assistance

under Strickland. Because the State has essentially waived waiver, we will

address these claims on the merits.

32 No. 20-2638

deficiency was unreasonable. Gilbreath’s trial lawyer,

Christopher Van Wagner, testified extensively regarding his

trial strategy, and how it affected his decisions throughout the

trial. “[S]trategic choices made after thorough investigation of

law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than

complete investigation are reasonable precisely to the extent

that reasonable professional judgments support the limitations

on investigation.” Strickland, 466 U.S. at 690–91. Gilbreath

contends that the state court unreasonably applied Strickland

by deferring to some of Van Wagner’s decisions as strategic

when in fact they were based on an incomplete investigation.

We disagree. Van Wagner’s explanation of his pre-trial

decisions and the application of his strategy as the case

unfolded before the jury was, as the trial court remarked in the

post-conviction oral ruling, worthy of being “required reading

in every law school trial practice class.” R. 6-16, at 25. Van

Wagner’s theory of the defense was that S.L. fabricated the

allegations. Fully aware that a young accuser in a sexual abuse

case can be perceived sympathetically by the jury, he sought to

demonstrate not that she was a liar but rather that she was not

a reliable witness:

[T]he core of the defense was that she’s not reliable.

Not that she’s lying. … [M]y general approach is not

to treat a young witness who claims to have been as-

saulted … with attack mode but rather with, we

need to feel sorry for her but we can’t rely on her.

That’s where I really wanted to be. And sometimes

… I’ll even say she believes it happened but that

No. 20-2638 33

doesn’t mean it did, which is to give her emotional

credibility but not factual credibility.

R. 6-15, at 113. As part of this approach, he sought to show

“both the incredulity of or … the unbelievability of her

accusations given the physical layout [of the house] and the

witnesses who were present. And also to show that she had a

number of reasons why she may well have wanted to be out of

the house and be … away from [Gilbreath].” R. 6-15, at 57–58.

As for those latter reasons, he sought to show that she rebelled

against Gilbreath as the disciplinarian and the person who was

blocking her access to boyfriends. He explained that in

attacking the credibility of a witness, he chose which avenues

to use both before trial and as the case unfolded at trial. He

was thus prepared with documentation of S.L.’s prior

statements in case he decided to impeach her on that basis, and

also sought to use the layout of the house combined with “the

incredibly intimate proximity of various witnesses” to the site

of alleged molestation to show that it was highly improbable

that her version of events could have occurred and yet gone

unnoticed by Patricia and Haiden. R. 6-15, at 58.

He did in fact attempt to impeach S.L. with the different

versions that she had given of Gilbreath’s conduct, beginning

with the number of times that she alleged that he assaulted her.

He was successful in showing that she disclaimed the

statement recorded in Oleson’s first report that the abuse

occurred only five or six times, and proved up that

34 No. 20-2638

inconsistency with the stipulation regarding Oleson’s report.16

But after the difficulty of questioning S.L. on that point, he

stayed away from attempting to impeach her with prior

inconsistent statements followed by a prove-up for fear that he

would be perceived by the jury as “attacking” S.L. by

“lock[ing] her in” with “lawyers questions” and saying, “didn’t

you say this, and didn’t you say that.” R. 6-15, at 79.

Primarily, though, he did not wish to detract from the

extraordinary success he had in impeaching S.L. with the letter

she wrote to her counselor:

By the time she had finished giving her answers

about the type written statement for the psycholo

gist I didn’t feel that there was anything else I

should do to give the chance to the State to

rehabilitate her credibility because she basically said

I didn’t write what I wrote. And that was something

I could never have expected in trial and this is what

I mean about focusing on what the witness is doing

and saying. … I thought that by the time she had

essentially and unbelievably denied typing the four

page statement that she typed and saying the things

she had put in there that at that point if there was

ever going to be a jury that was going to have a

problem with her credibility that was the moment.

And then to go into other areas while certainly

16

Van Wagner also explained that he did not wish to have Oleson testify

and did not wish to risk admitting her full reports because substantial parts

of the reports and Oleson’s likely testimony would have been very harmful

to Gilbreath’s case.

No. 20-2638 35

scorched earth in nature, exhaustive in nature would

… not discredit but would undercut … the visceral

impact to the jury.

R. 6-15, at 67. He felt that S.L. had “made herself out to be

virtually delirious on the stand or incredible,” and that he did

not wish to risk detracting from what he felt was Gilbreath’s

“optimal position in front of the jury” by trying to prove up

statements through witnesses who might be hostile to the

defense. He had a file marked with S.L.’s prior statements, had

them at the ready for cross-examination, and decided as a

strategic matter not to prove up certain prior inconsistent

statements. R. 6-15, at 63. He described his thought process:

I knew in my opinion at that time my strategic view

of the four page type written letter to the therapist

was it was manna from heaven. It was a piece of

gold. And … if we were ever going to get an

acquittal it was going to be a, a fulcrum point. And

so if you recall in my cross-examination I spent the

first five to seven minutes … locking into the truth

and the extent and the detail and the completeness

and the absolute reliability of that statement without

asking her about a single piece of its content. My

intent was to finish my cross with that[.]

R. 6-15, at 72. He then sought to have S.L. affirm the layout of

the room and house and the location of the witnesses to show

the improbability of her claim that the masturbation incident

(among others) had occurred steps away from Patricia and in

the same bed as Haiden without them noticing, before

returning to the content of the letter. When he began

36 No. 20-2638

questioning her about the content, he had not expected that she

would begin to deny writing something that minutes earlier

she had “been locked into committing that she had written the

whole thing.” R. 6-15, at 73. This made her appear “delusional”

in his view, and at that point, he moved away from individual

impeachments so that he could focus on “getting as much of

this deluded response out of her.” R. 6-15, at 73–74.

In response to questions about various decisions he made

during the trial, Van Wagner indicated that, although with the

hindsight of knowing that his strategy did not carry the day

with the jury he would prefer to have done things differently,

he believed at the time that he had made the best possible

decisions for Gilbreath’s defense. R. 6-15, at 66, 68–69.

Counsel’s explanation of his trial decisions and strategy at the

post-conviction hearing covered approximately seventy pages

of transcript, and so far we have sketched out his strategy in

only the broadest terms. Although we assess counsel’s

performance as a whole, we must turn to Gilbreath’s particular

claims of ineffective assistance and Van Wagner’s explanation

in each instance before considering the whole.

1.

Gilbreath asserts that counsel was ineffective for failing to

investigate S.L.’s claims that she contemporaneously disclosed

the assaults to Aaron and Kayla, neglecting to interview them

or present their testimony. Both Aaron and Kayla would have

testified that S.L. never mentioned the assaults to them,

impeaching S.L.’s claim that she reported the assaults to them

and that they responded supportively. Van Wagner testified

that he was aware that S.L. claimed she had disclosed the

No. 20-2638 37

assaults to Aaron and Kayla. Van Wagner did not believe that

Aaron had anything useful to add to the trial, noting that he

preferred to present the two closest eyewitnesses: Haiden, who

shared a bed with S.L., and Patricia, who slept a few steps

away. Van Wagner thought that a teenaged boy asleep in a

bunk bed above S.L.’s futon would not have anything useful to

offer. But more importantly, he testified that Aaron was living

in Colorado at the time of the trial and was having legal

problems of his own. Gilbreath did not want Aaron to return

for the trial, and together Van Wagner and Gilbreath decided

not to bring Aaron to Wisconsin for the trial. In fact, Aaron was

on probation in Colorado and was not allowed to leave the

state. As a result of Gilbreath’s wishes, counsel’s judgment and

Aaron’s own legal difficulties, Van Wagner spoke to Aaron

mostly about whether he could be forced by the State of

Wisconsin to return to testify and did not go into detail with

him regarding his knowledge of S.L.’s claims. See Strickland,

466 U.S. at 691 (“[W]hen a defendant has given counsel reason

to believe that pursuing certain investigations would be

fruitless or even harmful, counsel’s failure to pursue those

investigations may not later be challenged as unreasonable.”).

The post-conviction court concluded as a factual matter that

Aaron was not available for trial and so gave no weight to any

claims that counsel was ineffective for failing to call Aaron for

any purpose.17 Gilbreath offers nothing to counter this factual

finding, and we therefore cannot conclude that the state court

17

At most, Aaron would have testified that he did not witness any abuse,

that he believed S.L. to have a character for untruthfulness, and that S.L. did

not tell him about the assaults at the time they occurred.

38 No. 20-2638

unreasonably applied Strickland in declining to find counsel

ineffective in relation to Aaron’s possible testimony.

As for Kayla, counsel believed that he spoke to all family

members who attended the trial, some before and some during

the trial. He could not specifically recall talking to Kayla about

S.L.’s disclosure claim and he did not consider calling her to

impeach S.L. about whether she disclosed the assaults at the

time they were occurring. Although he could not recall making

a decision specifically about objecting on hearsay grounds to

S.L.’s testimony about her purported conversation with Kayla,

he explained that his general practice was not to object unless

he felt the testimony would hurt the case; he did not wish to

give the jury the impression that he was seeking to prevent

them from knowing the truth. He assumed from his failure to

object that he did not believe at the time that he should. He

also explained that he does not cross-examine on every topic,

instead limiting himself to things that highlighted the areas

most fertile in the case. And as we noted above, he sought not

to show that S.L. was a liar but that she was unreliable, a

reasonable strategy with a young accuser.

Kayla would have testified that S.L. did not disclose the

assaults to her and that she believed S.L. was not a truthful

person. In denying the post-conviction motion, the state court

credited Van Wagner’s testimony that he did not believe that

third-party impeachment of S.L. was an effective tactic, and

believed at the time of trial that it would have harmed

Gilbreath’s case for several reasons, including by detracting

from what defense counsel had already accomplished. Under

Strickland, “a particular decision not to investigate must be

directly assessed for reasonableness in all the circumstances,

No. 20-2638 39

applying a heavy measure of deference to counsel’s

judgments.” 466 U.S. at 691. Even if a decision not to further

investigate Kayla was a mistake, that is not enough to

characterize a lawyer’s judgment as ineffective assistance. See

Makiel v. Butler, 782 F.3d 882, 901–02 (7th Cir. 2015) (a

miscalculation constitutes deficient performance only where

the miscalculation was objectively unreasonable). See also

Strickland, 466 U.S. at 690–91 (“[S]trategic choices made after

less than complete investigation are reasonable precisely to the

extent that reasonable professional judgments support the

limitations on investigation.”). We cannot say that Van

Wagner’s decision not to investigate Kayla further in light of

what he already knew and in the context of his general strategy

was objectively unreasonable. Nor can we say that the state

court unreasonably applied Strickland in refusing to fault Van

Wagner for this choice. See Yarborough v. Gentry, 540 U.S. 1, 8

(2003) (even if an omission by counsel is inadvertent, relief is

not automatic; the Sixth Amendment guarantees reasonable

competence, not perfect advocacy judged with the benefit of

hindsight). And as we note below, any failure to investigate

Kayla further and present her testimony was not prejudicial.

2.

Gilbreath next contends that counsel was ineffective for

failing to impeach S.L.’s testimony denying her motive to lie

with her prior statements discussing her behavioral problems

and Gilbreath’s interference with her dating. Specifically, he

contends that counsel should have impeached S.L. regarding

the inconsistency between her claim during the 2008 disclosure

that the touching occurred only over her clothes, and her 2010

disclosure where she reported touching under her clothing. But

40 No. 20-2638

of course, counsel did ask S.L. about her claim in 2008 that the

touching occurred only over her clothing, although he

admittedly did not prove up this assertion by presenting

Oleson’s written report on this point.18 Nevertheless, counsel

explained that the decision not to prove up prior inconsistent

statements was a strategic decision he made at the time of the

trial. R. 6-15, at 63–64. He did not wish to detract from what he

accomplished in showing her to be “virtually delirious” in her

testimony about the letter to her therapist, and he generally did

not like to impeach with and prove up prior inconsistent

statements because such evidence “causes jurors eyes to glaze

over and they don’t follow it.” R. 6-15, at 63. He had difficulty

impeaching S.L. regarding the number of times the assaults

occurred and decided against pushing the point again. He also

held the view that “in general that kind of prove up is a

wonderful law school or deposition technique but jurors just

don’t want to follow it very well. They just tend to lose

interest.” R. 6-15, at 64–65. Although in hindsight he regretted

not proving up the inconsistent statement regarding touching

under versus over the clothing, he made a decision at the time

not to pursue it and detract from what he believed to be the

zenith of the case. That decision was not an objectively

unreasonable strategy, and as such, it cannot be characterized

as ineffective assistance.

18

Counsel’s questioning on the under-versus-over-the-clothing issue was

successful enough that the State sought to rehabilitate S.L. on this topic on

re-direct examination. R. 6-11, at 218. The jury was instructed that sexual

contact either directly or through the clothing qualifies as sexual abuse. R.

6-14, at 154-55.

No. 20-2638 41

Gilbreath also argued that counsel should have impeached

S.L. regarding her motive to lie in 2010 when she denied that

she was getting into trouble at home and denied that her

parents objected to her relationship with Robert. Gilbreath lists

a number of prior inconsistent statements that counsel could

have used to impeach S.L. on these topics. We will not repeat

our analysis regarding counsel’s strategic decisions generally

not to impeach with prior inconsistent statements. We will add

only that counsel was of the view that he thoroughly

addressed these very topics when he questioned S.L. about the

statements she wrote to her therapist, where she referred to

herself as a “wild child,” and in the testimony of Gilbreath,

Patricia and Haiden that S.L. was getting into serious trouble

with Gilbreath frequently. He had also addressed the driver’s

license issue, which he characterized as a “huge deal” to a

teenager. But he did not wish to attack her further and risk the

jury thinking, “[L]eave her alone for crying out loud. … [T]he

poor girl is doing the best she can.” R. 6-15, at 78–79.19 See

Bergmann v. McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995)

(deciding not to cross-examine a sympathetic victim/witness

was well within the realm of sound trial strategy, and we will

not, in hindsight, second-guess that decision). When asked

about failing to impeach S.L. with her prior statements about

her father’s dislike of Robert, counsel replied, “My answer is

19

Counsel also explained that he was very careful to avoid using

impeachment materials from the interviews with Oleson and Safe Harbor

for fear that the trial court would allow the entire documents be entered

into evidence at the State’s request for completeness and context. He wished

to avoid the entry into evidence of significant amounts of information that

would have been adverse to Gilbreath’s case.

42 No. 20-2638

the same. … I did what I did because I thought it was the best

at the time,” explaining that he abandoned the idea of paper

impeachments or collateral witness impeachments because S.L.

had “self-impeached quite well.” R. 6-15, at 83. These were not

objectively unreasonable decisions.

3.

Gilbreath next asserts counsel should have impeached S.L.

with her failure to mention in her first disclosure the three

specific, more graphic incidents that she described at trial.

Asked about his failure to do so during the post-conviction

hearing, Van Wagner explained his entire impeachment

strategy and his decision to forgo this type of impeachment

after he cross-examined S.L. regarding her letter to the

therapist. R. 6-15, at 71–77. His explanation, some of which we

quoted above, occupied five or six pages of the transcript, and

was based on reasonable strategic decisions grounded in the

facts of the case and the law, as the state court found, and

requires no further analysis.

4.

This conclusion applies equally to counsel’s decisions not

to call Aaron, Giovanni, Kayla, and Kayla’s mother Dawn to

testify that they observed no sexual touching or suspicious

conduct when in the presence of S.L. and Gilbreath, and in the

case of the latter three witnesses, that they believed that S.L.

had a reputation for untruthfulness. We have already

addressed Aaron’s unavailability for trial, and need not

address this claim further as it relates to him. In the case of

Giovanni, counsel testified that no one had suggested to him

prior to trial that Giovanni would have something helpful to

No. 20-2638 43

say. See Strickland, 466 U.S. at 691 (whether investigation

decisions are reasonable depends critically on information

provided by the defendant). As with Aaron, Giovanni was in

a bunk bed above S.L. and was not as direct a witness as

Haiden or Patricia. Van Wagner did not believe that having

Giovanni testify that he saw nothing would add anything to

the testimony of Haiden and Patricia, characterizing his

potential contributions as “negligible,” especially in

comparison to Haiden who shared a bed with S.L. and said she

saw nothing. R. 6-15, at 97. Although in hindsight, counsel

thought it might have been better to call Aaron and Giovanni,

at the time, he decided not to because “teenage boys sleep like

rocks. They sleep through anything,” and because the jury

knew that the children shared the room and yet nobody came

forward and told investigators they witnessed anything. R. 6-

15, at 98. Giovanni was two years younger than S.L., and so

would have been seven years old when the abuse began. It is

difficult to say that counsel made an objectively unreasonable

decision in deciding not to interview a witness who would

have been seven or eight years old and without a direct line of

sight to the relevant events. In the end, Giovanni would have

said only that he did not see anything amiss and that he

believed S.L. to be untruthful. As the state court post-

conviction court noted, it was “not particularly surprising” that

after the jury believed S.L. and convicted Gilbreath, “family

members who sided with the defendant came out of the

woodwork to claim” that S.L. was a liar, but this was simply

the same evidence the jury had already heard from different

voices. R. 6-16, at 19. Counsel’s decisions not to have family

members pile on with claims that S.L. had a character for

44 No. 20-2638

untruthfulness or that they saw nothing amiss was a

reasonable strategy at the time of the trial. See Bergmann, 65

F.3d at 1380 (as a matter of trial strategy, counsel could well

decide not to call family members as witnesses because family

members can be easily impeached for bias).

5.

Finally, Gilbreath argues that counsel was ineffective

because he failed to provide evidence of a motive for S.L. to

fabricate the first disclosure in 2008, focusing instead on her

motives at the time of the second disclosure in 2010. This gap

was exploited by the prosecutor in questioning Patricia and in

closing argument, according to Gilbreath. In particular, Van

Wagner should have presented evidence that, in 2008, S.L. was

involved with a friend of Aaron’s named Dustin, who was four

years older than she, and that Gilbreath interfered with that

relationship in the same way he interfered with her

relationship with Robert in 2010.

Van Wagner testified that he sought to present a motive

that was the same throughout, namely that Gilbreath was a

strict disciplinarian against whom S.L. rebelled. He testified

that this motive was present “on a lesser scale in 2008 by all

accounts that came in,” and he did not have much more to

present as a motive for the first disclosure in 2008. R. 6-15, at

86. He therefore presented S.L. as having the same motives to

lie in 2008 as she had in 2010. He did not bring out evidence

regarding Dustin specifically, but he did present evidence that

Gilbreath was a strict disciplinarian both before he went to

prison and when he came home from prison. Counsel was also

wary of the dynamics in the courtroom during the presentation

No. 20-2638 45

of motive evidence because the defense side of the room was

full of Gilbreath’s relatives, and the other side held just a row

and a half of members of S.L.’s foster family and someone from

a support agency. He did not wish to get into an “internecin[e]

family battle,” and did not have more evidence to add beyond

the discipline evidence for a 2008 motive to lie. R. 6-15, at 85.

Van Wagner’s explanation of his handling of the 2008

motive to lie evidence is consistent with the testimony of both

Gilbreath and Patricia at trial and at the post-conviction

hearing. Both Patricia and Gilbreath professed not to know

why S.L. would lie in 2008, R. 6-12, at 52 and R. 6-13 at 92, and

Gilbreath testified that he did not understand that there was an

issue with Dustin until after he was released from prison.

R. 6-15, at 185. Gilbreath thus did not seek to limit S.L.’s

relationship with Dustin until some time after his release, and

in fact testified at trial that he did not really have problems

with S.L.’s behavior before he went to prison. R. 6-15, at

185–87; R. 6-13, at 90. Moreover, S.L.’s first disclosure came

before Gilbreath’s release, and so the timeline did not support

using her relationship with Dustin as a motive for lying about

Gilbreath.

Gilbreath also faults Van Wagner for failing to present

specific instances of S.L.’s behavioral issues in the 2010 time

frame in order to show her motive to lie. This evidence

included S.L. writing a note at school critical of Gilbreath for

telling her what to do when he was not her father; lying to

Gilbreath about her self-inflicted wounds; lying about staying

late at school for a school project when she was in fact meeting

up with a boyfriend; and arguing with Gilbreath about her

desire to take a two-week trip with Robert. But Van Wagner

46 No. 20-2638

explained several times why he decided not to impeach S.L.

with this type of evidence, and although he may have felt in

hindsight that it would have been better or more prudent to

employ this type of evidence, he repeatedly reaffirmed that he

made the best decisions he could for Gilbreath at the time

based on his judgment of how the trial was unfolding. Most

importantly, he had placed before the jury S.L.’s own

descriptions of her behavioral issues in the letter to her

therapist. Once again, Van Wagner’s reasons for declining to

present his type of evidence were the result of objectively

reasonable strategic decisions supported by the facts and the

law, and Gilbreath cannot show that the state court misapplied

Strickland on this point. Yarborough, 540 U.S. at 9 (“The issues

counsel omitted were not so clearly more persuasive than

those he discussed that their omission can only be attributed to

a professional error of constitutional magnitude.”); Dunn v.

Jess, 981 F.3d 582, 591 (7th Cir. 2020) (Strickland establishes a

deferential presumption that strategic judgments made by

defense counsel are reasonable); Yu Tian Li v. United States, 648

F.3d 524, 528 (7th Cir. 2011) (so long as an attorney articulates

a strategic reason for a decision that was sound at the time it

was made, the decision generally cannot support a claim of

ineffective assistance of counsel).

In sum, a petitioner’s burden in making a claim of

ineffective assistance is to show “that counsel made errors so

serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.”

Strickland, 466 U.S. at 687. The state court did not unreasonably

apply this standard in concluding that Gilbreath fell short of

that mark.

No. 20-2638 47

B.

Gilbreath failed to demonstrate that the state court’s

rejection of a claim of deficient performance was contrary to,

or involved an unreasonable application of, clearly established

federal law, or was based on an unreasonable determination of

the facts in light of the evidence presented in the state court

proceeding. That conclusion is sufficient to end this appeal, but

for the sake of completeness, we turn to the question of

prejudice, the second major prong of the Strickland analysis:

With respect to prejudice, a challenger must

demonstrate a reasonable probability that, but for

counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable

probability is a probability sufficient to undermine

confidence in the outcome. It is not enough to show

that the errors had some conceivable effect on the

outcome of the proceeding. Counsel’s errors must be

so serious as to deprive the defendant of a fair trial,

a trial whose result is reliable.

Richter, 562 U.S. at 104 (internal citations and quotation marks

omitted). Again, because we consider Gilbreath’s Strickland

challenge in the context of a petition for a writ of habeas corpus,

our review of the state court’s decision on prejudice is highly

deferential. Gilbreath again falls short of the mark.

The post-conviction court found that counsel’s decisions

were the result of objectively reasonable strategic decisions

except in a single instance related to counsel’s failure to notice

that an interview with Oleson had been recorded. Gilbreath

does not complain of this error on appeal, and in any case, the

48 No. 20-2638

court found that it had no basis for concluding that Gilbreath

was denied a fair trial with a reliable result as a result of that

or any other error. The court of appeals also concluded there

were no prejudicial errors in trial counsel’s performance:

The matters that Gilbreath argues trial counsel

should have investigated and used to impeach S.L.

are the same matters we have discussed above [in

rejecting Gilbreath’s claim under Wis. Stat. § 752.35

that the real controversy was not fully tried]. We

have explained, however, that S.L.’s credibility was

thoroughly impeached at trial and the new

impeachment material would be merely cumulative.

Therefore, there could be no prejudice to Gilbreath

as a result of counsel’s alleged deficient

performance, because the result of a new trial would

be the same.

State v. Gilbreath, 2018 WL 2347126, *4 (Wis. Ct. App. May 24,

2018).

Gilbreath takes issue with the court’s characterization of the

additional impeachment material and other evidence as

“cumulative,” contending that the evidence was actually

corroborative, and maintaining that the court wrongly applied

state rather than federal law in making that judgment. See State

v. Gilbreath, 2018 WL 2347126, *3 (citing State v. McAlister, 911

N.W.2d 77 (Wis. 2018)). Gilbreath objects to this application of

McAlister because that case involved a claim of newly

discovered evidence in the context of a motion for a new trial,

rather than a claim for ineffective assistance of counsel. But the

language he objects to in the court’s opinion is contained in the

No. 20-2638 49

analysis of his state law claim for a new trial in the interest of

justice where the real controversy was not tried. True, the court

of appeals referred back to that analysis when it assessed the

prejudice prong of the Strickland claim, but the court’s point

was subtly different: in the Strickland analysis, the court found

that S.L. had been so thoroughly impeached that additional

impeachment evidence would not likely have affected the

outcome of the trial.

It does not matter whether the additional impeachment

evidence is characterized as cumulative or corroborative;

neither of the state courts found that there was a reasonable

probability that, but for the omission of this evidence, the

result of the proceeding would have been different. Indeed,

counsel managed to place before the jury at least three

different versions of the abuse that S.L. reported to authorities,

social workers and her counselor, using her own words to

demonstrate the inconsistencies. As the post-conviction court

noted, counsel thoroughly succeeded in discrediting S.L.’s

reliability as a witness with the cross-examination on the letter

to her counselor; and counsel reasonably decided that

additional evidence demonstrating unreliability or

untruthfulness would have hurt rather than helped his case.

The court agreed with counsel’s assessment. Gilbreath does not

explain how the conclusion of the state court that there is not

a reasonable probability that the result would have been

altered by this additional evidence results from an

unreasonable application of federal law.

Gilbreath contends, nevertheless, that counsel’s failure to

impeach S.L. on the same points we have already covered

would have caused the jury to reassess her credibility.

50 No. 20-2638

According to Gilbreath, the case was close, and the Wisconsin

court failed to assess the missing evidence in light of the

strengths and weaknesses of the State’s case. Evidence of his

guilt was weak, Gilbreath asserts, and in a close case, the

additional evidence would have made a difference to the

outcome. As we noted above, the post-conviction court also

presided over the original trial, and that judge concluded that

there was no reasonable probability that, but for any error by

counsel, the result would have been different. In our

assessment of prejudice when the same judge presided over

both the trial and the post-conviction hearing, “we cannot

accept as conclusive the judge’s statement that the new

evidence would not have made any difference to the outcome

of the case.” Raygoza v. Hulick 474 F.3d 958, 964 (7th Cir. 2007).

Nevertheless, “we naturally give great weight to the judge’s

assessments, particularly on matters relating to the credibility

of the witnesses who appeared.” Id.

At base, Gilbreath’s argument is that, in a credibility

contest, counsel must employ scorched-earth tactics in

attacking the credibility of the primary witness. But this

argument gives no consideration to the risks of such a strategy.

As trial counsel was well aware, there are significant down-

sides to attacking a sympathetic young accuser or even being

perceived as attacking her. In this instance, the accuser had

been abandoned by her entire family after disclosing the abuse,

and the courtroom was full of the defendant’s supporters.

Counsel was fully aware of the tensions in the courtroom when

he decided not to call additional witnesses or further impeach

S.L. after he successfully impeached her with her own words

in front of the jury, where she first took ownership of the letter

No. 20-2638 51

to her therapist and then denied that she wrote the most

significant parts of it, including substantial material that

contradicted her testimony at trial on the very issues Gilbreath

asserts were insufficiently challenged. In addition to the

potential upside of the additional evidence, counsel and the

Wisconsin courts noted that there were also significant risks

and downsides, and Gilbreath’s arguments acknowledge none

of those downsides. The judgments of the Wisconsin courts on

prejudice are due deference.

Finally, although Gilbreath faults the Wisconsin court for

failing to consider the additional evidence in the context of the

totality of the evidence before the jury, he fails to consider the

effect of his own testimony as the only witness presented in the

defense case. Gilbreath’s counsel, in attempting to make sense

of the jury’s verdict, remarked that he was stunned by the

verdict:

[W]hat I did in this case didn’t work and it

should’ve. It should’ve based on my eighty to ninety

trials including twenty sexual assault trials on both

sides.

R. 6-15, at 115–16. In the end, counsel concluded, “if you ask

me I’d say I think the jury just said we don’t believe Michael.”

R. 6-15, at 117. Gilbreath fails to take into account that his

testimony was the other half of the credibility contest, and his

own lawyer believed that the jury simply did not believe his

client even though the trial strategy he employed should have

worked based on his extensive trial experience in sexual

assault cases.

52 No. 20-2638

Even if we ourselves were persuaded that Gilbreath had

been prejudiced by his lawyer’s lapses (and again, there were

no significant lapses), “a state court’s determination that a

defendant was not prejudiced by his lawyer’s ineffectiveness

is entitled to great weight in a federal habeas corpus

proceeding.” Price v. Thurmer, 637 F.3d 831, 839 (7th Cir. 2011).

We cannot conclude in the end that the state court’s ruling on

prejudice was the result of an unreasonable application of

clearly established federal law, or was based on an

unreasonable determination of the facts.

III.

In granting the writ, the district court did not defer

sufficiently to counsel and the state courts:

[T]he Strickland standard must be applied with

scrupulous care, lest “intrusive post-trial inquiry”

threaten the integrity of the very adversary process

the right to counsel is meant to serve. Strickland, 466

U.S., at 689–690, 104 S.Ct. 2052. Even under de novo

review, the standard for judging counsel’s

representation is a most deferential one. Unlike a

later reviewing court, the attorney observed the

relevant proceedings, knew of materials outside the

record, and interacted with the client, with opposing

counsel, and with the judge. It is “all too tempting”

to “second-guess counsel’s assistance after

conviction or adverse sentence.” Id., at 689, 104 S.Ct.

2052[.]

Richter, 562 U.S. at 105. In this case, experienced counsel

carefully decided when to press forward and when to hold

No. 20-2638 53

back in light of a carefully constructed strategy that took into

consideration everything from the sympathetic nature of the

accuser to the mood in the courtroom. As Van Wagner

perceived the case unfold and reached what he believed was

the “zenith of … the strength of our case,” a “fulcrum point”

that gave his client the best chance for an acquittal, he

consciously resolved not to present the very evidence that

Gilbreath argues he should have presented. We cannot say that

the Wisconsin Court of Appeals unreasonably applied

Strickland when it determined that counsel’s performance was

neither constitutionally deficient nor prejudicial. We therefore

reverse the judgment granting the writ.

REVERSED.