Isaiah Brady v. Randy Pfister

In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3365

ISAIAH B RADY,

Petitioner-Appellant,

v.

R ANDY P FISTER, Acting Warden,

Pontiac Correctional Center,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10 C 2098—Matthew F. Kennelly, Judge.

A RGUED S EPTEMBER 17, 2012—D ECIDED A PRIL 1, 2013

Before E ASTERBROOK, Chief Judge, and B AUER and

W OOD , Circuit Judges.

W OOD , Circuit Judge. Isaiah Brady was convicted in

Illinois state court of first-degree murder for the

shooting death of Andrea McDaniel, his girlfriend and

the mother of his eighteen-month-old daughter. Brady

no longer disputes that he shot McDaniel, though he

claims it was an accident and has proffered four wit-

2 No. 11-3365

nesses to corroborate his story. None of them testified

at trial, because Brady’s lawyer did not call them. This

amounted to constitutionally ineffective assistance of

counsel, in Brady’s view. The state courts were not per-

suaded that this omission was serious enough to under-

mine his conviction, and the district court held that

their decision was not so unreasonable that federal

relief was possible. Even assuming that the performance

of Brady’s lawyer fell below constitutional standards,

we conclude that Brady’s inability to show prejudice

dooms his petition under 28 U.S.C. § 2254. We there-

fore affirm.

I

A

McDaniel arrived at the emergency room of Provident

Hospital in Chicago in the early hours of May 10, 2001,

with a gunshot wound to the head. She died two days

later. Her death was ruled a homicide, and Brady

quickly became a suspect. After several weeks on the

run, Brady was arrested in Los Angeles, California, on

June 6, 2001, extradited to Illinois, and charged

with murder.

Brady was convicted in a bench trial in November 2002.

The prosecution’s theory was that Brady, who had a

history of abusing McDaniel, shot her in the course of

an argument that broke out when she attempted to

leave him. To prove its case, the state presented

witnesses to testify about: (1) Brady’s history of domestic

No. 11-3365 3

violence toward McDaniel; (2) Brady’s actions before

and after the shooting; (3) physical evidence found

in Brady and McDaniel’s apartment; and (4) Brady’s

flight to California.

To establish the first point, the state presented

several police officers who had responded to domestic

disturbance calls at Brady and McDaniel’s apartment in

the past. On some occasions, the officers had discovered

serious problems. For example, about 11 months before

the shooting, officers had to force their way into the

apartment as they heard McDaniel screaming for

help. Once inside, they observed McDaniel with bruises

on her arm and face; she told them that these were

the results of Brady’s having hit her with a broomstick.

After he was placed under arrest and informed of

his rights, Brady told the officers that he beat McDaniel

because she stayed out at night and did not take care

of their children.

Corey Hall, a close friend of McDaniel who lived

across the courtyard from Brady and McDaniel’s apart-

ment, also provided information about Brady’s actions

before the shooting. On the night of May 9, 2001, Hall

and some friends, including Brady and McDaniel, were

sitting on Hall’s back porch. Hall testified that Brady

had with him a .38-caliber revolver, which Hall saw

when it fell out of Brady’s pants. Later that evening,

Hall joined Brady and McDaniel for tacos in their apart-

ment; he left shortly after midnight. Approximately

one hour and 10 minutes later, Hall was on his way to

a nearby store when he saw Brady walking in the direc-

4 No. 11-3365

tion of Brady’s own apartment. Hall recalled that Brady

seemed nervous.

Three witnesses—Antoinette Dill, Gail Gray, and

Wanda Riley—testified about Brady’s actions in the wake

of the shooting. Dill, who lived on the floor below Brady

and McDaniel, watched as Brady removed McDaniel

from the apartment. At about 1:30 a.m., Dill heard

Brady and another man (who turned out to be Brady’s

stepfather) speaking near her window. According to

Dill, the other man said “she’s dead,” to which Brady

responded, “she’s not dead yet, help me carry her.” Dill

then heard a woman screaming for someone to call

an ambulance and saying “don’t move her.” As Dill left

her apartment to offer help, she saw Brady and another

man placing McDaniel in the back seat of a black car.

A woman (Brady’s mother) was sitting in the car and

asked Dill to call 911, but Brady responded that there

was no time and that they needed to drive McDaniel to

the hospital.

Gray, an emergency room nurse at Provident

Hospital, was on duty when Brady drove up with

McDaniel around 1:35 a.m. Brady identified himself

as McDaniel’s boyfriend. After taking McDaniel to the

resuscitation room, Gray spoke briefly with Brady about

McDaniel’s medical history. About 10 to 15 minutes

after Gray returned to the resuscitation room, a police

officer came looking for Brady, but Gray was unable

to find him.

Riley, Brady’s grandmother, lived around the corner

from Provident Hospital. Some time after 1:30 a.m., Brady

No. 11-3365 5

showed up at her apartment and asked to borrow her

car. He told Riley that McDaniel had been shot and that

he needed to pick up his daughter, who was apparently

still back at the apartment. Riley needed her car for

work the following day, and so she refused Brady’s

request. Brady grabbed her car keys anyway and tried

to leave, taking along some clothes that belonged to

Riley’s son. Riley followed him and recovered the keys.

Brady then ran off in the direction of his apartment,

leaving the clothes behind. Five minutes later, Brady’s

mother and stepfather arrived at Riley’s home with

Brady’s daughter.

Several witnesses described the physical evidence.

Most importantly for our purposes, Officer Joseph

Dunigan testified about the chaotic condition of

McDaniel and Brady’s apartment immediately following

the shooting. There was blood on the rear stairs as well

as in the kitchen; bloody towels and clothing lay on

the kitchen floor. The master bedroom was a mess: the

door was marked and damaged near the handle; clothes

and a bloody mattress were strewn about; a television

was on the floor; and there was blood on the wall.

Dunigan recovered two .38-caliber cartridges from the

bedroom.

The final support for the state’s case came from

Brady’s flight to California. Makeeta Burke testified that

she met Brady in a Los Angeles bar. Brady told Burke

that his name was Rico Holt, that he was from New York,

and that he was in California to care for his grandfather.

He volunteered that he was on the run from the

6 No. 11-3365

FBI because some of his friends were drug dealers.

Shortly before his arrest, Brady told Burke that he had

accidentally killed his daughter’s mother when his gun

unexpectedly fired as he took it off a shelf. Brady said

that he fled to California because the police had come to

his home on other occasions when he and McDaniel

were arguing. He asserted that he was planning to

turn himself in as soon as his family was able to hire

a lawyer.

After he was arrested, Brady continued for a time to

maintain that his name was Rico Holt. The Chicago

police officer who handled Brady’s extradition from

California testified that Brady identified himself as Holt

when they first spoke in the Los Angeles County Jail.

Brady’s trial counsel presented only one defense

witness: Brady’s grandfather, Claude Sanders. Sanders

testified that he advised Brady to leave town after the

shooting because he had heard that Brady’s life was

in danger.

The court found Brady guilty of first-degree murder.

It credited the testimony of Burke and Hall and

concluded that their account supported the inference

that Brady (as opposed to someone else, such as an in-

truder) had shot McDaniel. The court rejected the idea

that the shooting was an accident. Believing that

Brady’s story to Burke was fabricated to maintain his

relationship with her, the court found it not to be credi-

ble. The court also found that Brady’s behavior after the

shooting was not consistent with an accident. It noted

that Brady did not call paramedics or seek help from

No. 11-3365 7

his neighbors; instead, he delayed McDaniel’s treatment

for a “significant time” when he decided to call his

m other first. Brady then attempted to obtain

fresh clothes and a car, suggesting an intent to flee.

He never returned to the hospital to check on McDaniel,

nor did he turn himself in or seek legal advice. Suspi-

ciously, he fled to California and assumed an alias. In

the court’s view, these were not the actions one

would expect of a person who accidentally had shot a

loved one. The court sentenced Brady to consecutive

sentences of 25 years each for murder and for per-

sonally discharging the firearm that killed McDaniel,

for a total of 50 years.

B

In 2006, Brady filed a pro se post-conviction petition

in state court arguing, among other things, that his trial

counsel was ineffective for failing to present several

witnesses. Attached to the petition were affidavits from

four people—Marshawn Brady, Sondra Burke, Elliott

Moore, and Flora Small—stating what testimony they

would have provided had they been called.

Marshawn Brady is Brady’s stepfather. In his affidavit,

he swore that he and Brady’s mother went to the apart-

ment after the shooting to get Brady’s daughter. While

Brady’s mother tended to the daughter, Marshawn

forced his way into Brady and McDaniel’s bedroom

and ransacked the room looking for valuables. Marshawn

said that the bedroom was neat when he entered and

8 No. 11-3365

that he alone was responsible for the disarray Officer

Dunigan encountered later that morning.

Sondra Burke, a friend, stated in her affidavit that

she saw McDaniel alive at 12:20 a.m., when she picked

up Brady from the couple’s apartment. She drove Brady

to her house, stopping at a payphone along the way so

that Brady could call his mother. Brady and Burke

spent about 35 minutes at Burke’s apartment, and then

Burke drove Brady home because his mother was

coming to pick him up. Burke dropped Brady off at his

apartment at 1:10 a.m. Burke’s testimony thus would

have established that McDaniel could not have been

shot before 1:10 a.m., and also that Brady’s mother was

on her way to the apartment when the shooting occurred.

Elliott Moore, also a friend, was prepared to testify

that he saw Brady running down Wabash Street around

2:00 a.m. Brady told Moore that McDaniel had been

shot and that he needed to pick up his daughter, who

was back at the apartment. Moore drove Brady to the

apartment, and Brady went inside. He came back out

several minutes later, crying and screaming that his

apartment had been ransacked and his daughter kid-

napped. Brady used Moore’s cell phone to call Provident

Hospital. He told Moore that McDaniel had been trans-

ferred to Cook County Hospital. Moore’s testimony

would have corroborated Marshawn’s story, and

would have shown that Brady checked on McDaniel

after leaving the hospital.

Finally, Brady’s aunt, Flora Small, stated in her

affidavit that Brady called her around 2:30 a.m. on the

No. 11-3365 9

day of the shooting. Brady asked Small if she had taken

his daughter from the apartment. He was crying and

told her that McDaniel had been shot and that his apart-

ment had been ransacked. Small told Brady to come

over. When Brady arrived, he made a phone call and

then told Small that his daughter was with his grand-

mother. Brady told Small that he accidentally had shot

McDaniel while she was folding clothes. He carried her

into the kitchen, and when his mother arrived shortly

thereafter, he carried her down to his mother’s car and

asked his mother to drive them to the hospital. After

realizing that his daughter was still in the apartment,

he tried to borrow Riley’s car. When she refused to let

him use it, he made his way toward his apartment on

foot until a friend picked him up and drove him the rest

of the way. Small’s testimony would have shown that

Brady described the shooting as an accident at least

once before meeting Makeeta Burke.

The state trial court dismissed Brady’s petition as

“frivolous and patently without merit.” The Illinois

appellate court affirmed, holding that Brady’s petition

failed to present a colorable claim of ineffective

assistance under Strickland v. Washington, 466 U.S. 668

(1984). The appellate court first found that counsel’s

performance was reasonable, both because Brady had

not alleged that any of his proposed witnesses had

ever shared the information in their affidavits with trial

counsel, and because “none of the witnesses appear to

have any direct knowledge of the shooting.” The court

further concluded that even if Brady could show that

counsel’s performance was deficient, he could not show

10 No. 11-3365

that this deficient performance prejudiced his case,

because the witnesses’ “close relationship” to Brady

made it “unlikely” that their testimony would have

altered the outcome of the trial. The Illinois Supreme

Court denied Brady’s petition for leave to appeal.

Brady next filed a timely petition for habeas corpus

in the Northern District of Illinois. Again, he contended

that his lawyer had rendered ineffective assistance by

failing to call his proposed witnesses. After reviewing

this claim in considerable depth, the district court con-

cluded that although the state appellate court applied

federal law unreasonably in finding that trial counsel’s

performance was constitutionally adequate, see 28

U.S.C. § 2254(d)(1), its conclusion that Brady could not

show prejudice was entitled to deference. The district

court thus denied Brady’s petition, but it issued a certifi-

cate of appealability on his ineffective assistance claim.

III

The standard for evaluating a claim of ineffective assis-

tance of counsel is a familiar one: the court must assess

both whether counsel’s performance was deficient and

whether the defendant suffered prejudice as a result. In

Strickland, the Supreme Court explained that deficient

performance “requires [a] showing that counsel made

errors so serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” 466 U.S. at 687. In evaluating performance,

“a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of rea-

No. 11-3365 11

sonable professional assistance.” Id. at 689. As for preju-

dice, Strickland instructs that a defendant must do

more than show that his attorney’s conduct had “some

conceivable effect on the outcome,” though the “defendant

need not show that counsel’s deficient conduct more

likely than not altered the outcome in the case.” Id. at

693 (emphasis added). Instead, the “defendant must

show that there is 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 con-

fidence in the outcome.” Id. at 694. The petitioner

must show both deficient performance and prejudice

in order to prevail.

Because Brady seeks relief from a state convic-

tion, we review his Strickland claim through the lens of

28 U.S.C. § 2254(d)(1), which permits a federal court

to issue a writ of habeas corpus only if the state court

reached a decision that was “contrary to, or involved

an unreasonable application of, clearly established

Federal law as determined by the Supreme Court.” This

standard is not met if the state-court decision is merely

incorrect; as the Supreme Court put it recently, an unrea-

sonable decision is one “so lacking in justification that

there was an error well understood and comprehended

in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 131 S. Ct. 770,

786-87 (2011). With this in mind, we turn to the specifics

of Brady’s claim.

12 No. 11-3365

A

As we noted earlier, the district court was satisfied

that the Illinois appellate court had addressed both the

performance aspect of the Strickland inquiry and the

prejudice question. Although the state court’s opinion is

somewhat vague in this respect—it speaks of presenting

the “gist” of a constitutional claim—we agree with our

colleague that a generous reading of the state-court

opinion supports this result. In the district court’s view,

the state court’s conclusion that the performance

of Brady’s lawyers was constitutionally effective was

unreasonable, even under the deferential standard re-

quired by Section 2254(d)(1). But because the district

court found that the state court’s ruling that Brady was

not prejudiced by this deficient performance lay within

the bounds of reason, it denied relief.

The Illinois appellate court offered a single justifica-

tion for its conclusion that Brady could not demonstrate

prejudice: “Finally, we note that each of the affiants

was either a friend or relative of defendant. Accordingly,

based on their close relationship to defendant, it is

unlikely that even if the witnesses had been called,

that their testimony would have altered the trial result.”

This reasoning is deeply problematic. Witnesses with

ties of family or friendship to a defendant are a

common feature in criminal cases, and those witnesses

are often privy to details that influence the outcome of

a case. The state court pointed to nothing in the record

that would support the assumption that the trial court

would not have credited the witnesses’ testimony solely

No. 11-3365 13

because of their association with Brady. Indeed, the

law does not demand, or even permit, the disregarding

of their testimony just because they are close to the ac-

cused. Cf. Raygoza v. Hulick, 474 F.3d 958, 965 (7th Cir.

2007) (counsel was deficient for failing to call family

and family friends of defendant as alibi witnesses). While

the trier of fact would have been entitled to take the

relationships into account in assessing the witnesses’

credibility, the appellate court was wrong, to the point

of being unreasonable, to conclude that this fact meant

that the absence of their testimony could not possibly

have made any difference.

Perhaps recognizing this, the state makes little effort

to defend the appellate court’s rationale for its prejudice

ruling. Instead, it encourages us to apply Section

2254(d)(1)’s deferential standard to the bottom-line con-

clusion, asserting that the Supreme Court’s recent

decision in Richter supports this approach. It argues

that we should actively disregard the explanation the

appellate court gave and instead either invent a chain

of reasoning under which the state court’s conclusion

can be reconciled with established federal law as deter-

mined by the Supreme Court or at least look back to the

record before the trial court and see if the result can be

supported that way. Although the district court did

not spell out this line of thought, it may have agreed. In

the final analysis, the district court set aside the state

appellate court’s stated reason for finding lack of

prejudice and weighed the evidence for itself, just as a

court would do if it were reviewing a Strickland claim

in the first instance. See 466 U.S. at 695-96. Using that

14 No. 11-3365

methodology, the district court concluded that because

the proffered testimony would not have rebutted those

aspects of the case that figured most prominently in

the trial court’s finding of guilt, the appellate court’s

finding of no prejudice was not unreasonable.

Lying behind the state’s argument are two questions

that bear on the administration of Section 2254(d)(1):

first, whether Richter (a) applies only to cases in which

the state court offers no reasoning, or instead (b) holds

in effect that federal courts should always entirely disre-

gard the state court’s rationale and decide independently

if the bottom line is justifiable; and second, if Richter

applies only to summary dispositions, how a federal

court should evaluate a case in which the state court

offers a reason, but that reason is either wrong

as a matter of law or patently irrational. Since the oral

argument in this case, the Supreme Court has addressed

these points, in Johnson v. Williams, 133 S. Ct. 1088 (2013).

The focus of the Court’s opinion in Williams was

the meaning of the “adjudication-on-the-merits require-

ment” in 28 U.S.C. § 2254(d). In that sense, Williams

followed up on the Court’s earlier decision in Richter,

where it had considered how to approach cases in

which “state-court relief is denied without an accom-

panying statement of reasons.” 131 S. Ct. at 780.

Richter held that the deferential standard set out in

Section 2254(d) applies even in such a case. Id. at 784.

The Court there was not concerned that such a

holding would induce state courts to withhold explana-

tions for their decisions. Id. Nor did it credit the argu-

No. 11-3365 15

ment that it is impossible to know if a summary disposi-

tion was on the merits or not. Instead, it endorsed a

presumption that such a resolution was on the merits

unless “there is reason to think some other explanation

for the state court’s decision is more likely.” Id. at 785.

Having established that Section 2254(d) applies to sum-

mary dispositions, the Richter Court concluded by re-

viewing the merits of the case and ruling that the

state court’s conclusion—that Richter had received con-

stitutionally adequate assistance of counsel—should

not be disturbed. Id. at 792.

Williams took the next step: it addressed the issue

that arises “when a defendant convicted in state court

attempts to raise a federal claim, either on direct appeal

or in a collateral state proceeding, and a state court

rules against the defendant and issues an opinion that

addresses some issues but does not expressly address

the federal claim in question.” 133 S. Ct. at 1091. Richter,

it held, pointed the way to the proper resolution of

that issue. Under these circumstances, “the federal

habeas court must presume (subject to rebuttal) that

the federal claim was adjudicated on the merits.” Id.

The Court suggested several ways in which a petitioner

might rebut the presumption: if the state court relies

exclusively on state law, and the state standard is less

protective than the federal one, rebuttal could occur; or

the governing federal standard might simply have

been “mentioned in passing in a footnote or [been]

buried in a string cite.” Id. at 1096. In instances like

those, either the petitioner might rebut the presump-

tion and show that the federal court should review

16 No. 11-3365

the claim de novo, or the state might rebut the presump-

tion and show that the federal claim was procedurally

defaulted. Id. Furthermore, the Court held, “[i]f a

federal claim is rejected as a result of sheer

inadvertence, it has not been evaluated based on the

intrinsic right and wrong of the matter.” Id. at 1097.

Such a claim has not been evaluated on the merits, and

thus does not satisfy the requirements of Section 2254(d).

Id. Concurring in the judgment, Justice Scalia also

rejected “the proposition that a judgment denying a

federal claim is irrebuttably presumed to have been ‘ad-

judicated on the merits’ within the meaning of 28 U.S.C.

§ 2254(d),” but he did not share the majority’s view

that one permissible way to rebut the presumption is

to show that the federal claim was inadvertently over-

looked. Id. at 1099.

Williams therefore confirms the fact that the state

court’s reasoning continues to be relevant wherever it

has given an explanation, notwithstanding the holding

in Richter. The presumption the Williams Court adopted,

however, means that state courts must be given the

benefit of the doubt when their opinions do not cover

every topic raised by the habeas corpus petitioner.

Federal courts will still need to evaluate whether the

state court’s conclusion was “contrary to” authority

from the Supreme Court in light of the state court’s ex-

planation for its holding. The same is true of the “unrea-

sonable application” branch of the statute; the Supreme

Court speaks of looking at the state-court opinion to see

if it “identifies” the correct principle but unreasonably

applies it to the case at hand. Williams v. Taylor, 529 U.S.

No. 11-3365 17

at 413. This is precisely what the Court did in cases such

as Rompilla v. Beard, 545 U.S. 374 (2005), and Wiggins v.

Smith, 539 U.S. 510 (2003), when it had a reasoned decision

before it. Nothing in Johnson v. Williams indicates that

these decisions have been undermined.

Brady’s case presents a variant on the pattern

described by Johnson v. Williams. Reading the state-court

opinion generously, we have already decided to treat it

as addressing both parts of the Strickland in-

quiry—performance and prejudice. The problem is

thus not silence; it is what to do if the last state court

to render a decision offers a bad reason for its decision.

And more particularly, the question is what should

happen when a person argues ineffective assistance

of counsel, which requires application of a two-part

test: inadequate performance and prejudice. Is this a

single “claim” for purposes of Section 2254(d), or should

the performance and prejudice elements be assessed

separately? In earlier cases, the Supreme Court has as-

sessed each element independently for Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA) pur-

poses. In Wiggins, for example, the Court applied AEDPA

deference to the performance branch of Strickland, and it

reviewed the prejudice question de novo. 539 U.S. at 534.

But it did so without any discussion of the one-claim/two-

claim question. If this aspect of Wiggins is still good law,

then the standard of review can change for individual

elements of a claim. This is so despite the fact that, for

purposes of ultimate relief, we have understood Sixth

Amendment challenges to the effectiveness of counsel as

a single “claim.” See, e.g., Pole v. Randolph, 570 F.3d 922,

18 No. 11-3365

934-35 (7th Cir. 2009); Peoples v. United States, 403 F.3d 844,

848 (7th Cir. 2005). On the other hand, if it is the claim

as a whole that qualifies (or not) for treatment under

Section 2254(d)(1), then the standard of review would

remain consistent for both elements. The Supreme

Court recently denied certiorari in two cases raising

this very question, see Wolfenbarger v. Foster, No. 12-420

(Mar. 18, 2013), and Bland v. Lemke, No. 12-594 (Mar. 18,

2013), and so, for the time being, the courts of appeal

will continue to confront this question without guidance

from the Court. As we now explain, however, the

choice between these standards makes no difference to

the outcome here.

In Brady’s case, the Illinois appellate court was the

only state tribunal to address Brady’s Strickland claim,

and it found neither deficient performance nor preju-

dice. The district court explained why it thought the

former finding was unreasonable, and we have

indicated why the reason expressed for the finding on

prejudice was wrong. (Brady additionally argues

that the Illinois appellate court’s decision should be

rejected under the “contrary to” part of Section 2254(d)(1),

but like the district court, we see no merit in this point.

The state court may have paraphrased Strickland a bit,

but there is no substantive difference between the

standard it used and the one required by the Supreme

Court.) Under Johnson v. Williams and Richter, it is clear

that a bad reason does not necessarily mean that the

ultimate result was an unreasonable application of estab-

lished doctrine. A state court could write that it re-

jected a defendant’s claim because Tarot cards dictated

No. 11-3365 19

that result, but its decision might nonetheless be a

sound one. If a state court’s rationale does not pass

muster under the Williams v. Taylor standard for Sec-

tion 2254(d)(1) cases, the only consequence is that

further inquiry is necessary.

At that point, it is no longer appropriate to attach

any special weight to the last state court’s expressed

reasons. The court’s judgment, however, is another

matter. With the last state court’s reasoning set aside, the

federal court should turn to the remainder of the state

record, including explanations offered by lower courts.

The only question in that situation is whether AEDPA

deference applies to those lower state-court decisions, or

if review is de novo. In close cases, it is conceivable that

the choice of standard might make a difference: if the

lower courts’ reasoning was incorrect, then the result

might be set aside on de novo review but not (as

Richter explained) under AEPDA. But it is unlikely that

the standard would affect very many cases. It is worth

recalling that the pre-AEDPA standard was also quite

deferential to the state courts. See Richter, 131 S. Ct. at

788 (“Even under de novo review, the standard for

judging counsel’s representation is a most deferential

one.”); Morales v. Johnson, 659 F.3d 588, 599 (7th Cir.

2011) (“[W]e review the petitioner’s constitutional claim

with deference to the state court, but ultimately

de novo.”) (internal quotation marks omitted). If the

record as a whole supports the state court’s outcome,

then even under de novo review the correct result

would be to deny the petition for a writ of habeas corpus.

20 No. 11-3365

B

The kind of independent review we have described is

the best that Brady can hope for, and so we now

consider whether he can prevail under that approach.

Prejudice, for purposes of Strickland, exists if there is “a

reasonable probability that, but for counsel’s unprofes-

sional errors, the result of the proceeding would have

been different.” 466 U.S. at 694. The state trial court

offered several reasons for its conclusion that the

shooting was not accidental: (1) its evaluation of Brady’s

statement to Makeeta Burke that the shooting was an

accident as a fabrication intended to maintain his rela-

tionship with her; (2) its adverse inference from

Brady’s behavior after the shooting, including (a) the

fact that Brady called his mother, rather than 911 or his

neighbors, for assistance following the shooting, (b) the

fact that Brady sought to borrow a car and fresh

clothes from his grandmother rather than returning

with his parents to his apartment to retrieve his

daughter, (c) Brady’s failure to return to the hospital

or otherwise check on McDaniel, and (d) Brady’s flight

to California and assumption of an alias.

Even setting aside the (likely) possibility that much of

the witnesses’ proposed testimony is inadmissible

hearsay, we conclude that this testimony does not under-

mine the guilty verdict. Elliott Moore’s and Flora

Small’s testimony would have shown that Brady

was crying and emotionally distressed the night of the

shooting, but this is not especially probative. Brady

might just as well have been crying in remorse for

No. 11-3365 21

having murdered McDaniel or in fear of being caught as

for having shot her accidentally. Marshawn Brady’s

testimony that he was responsible for the chaotic state

of Brady and McDaniel’s bedroom would have under-

mined the prosecution’s theory that McDaniel and

Brady fought before the shooting. On the other hand,

Marshawn’s story fails to account for the blood all over

the room; it is highly implausible; and it is largely irrele-

vant given that the trial court offered no indication that

it relied on the disarray in the bedroom in any way.

Sondra Burke’s testimony would have established that

McDaniel was taken to the hospital very shortly after

being shot, and thus that she did not go untreated for

very long. It also suggested that Brady relied on his

mother to take him and McDaniel to the hospital

because she was on her way to their apartment prior to

the shooting. Once again, this is of peripheral im-

portance at best; the trial court mentioned delay only

briefly, and Burke’s testimony says nothing about most

of the damning information.

None of the proffered witnesses offers a plausible

alternative explanation for Brady’s decision to flee. Al-

though Small’s testimony (if admissible) would have

established that Brady claimed to have shot McDaniel

accidentally on at least one occasion before he met

Makeeta Burke—a fact that would tend to undermine

the inference that his statement to Burke was

false—other features of Brady’s flight to and time spent

hiding in California remain unexplained. Importantly,

none of the witnesses suggests why Brady fled rather

than cooperate with the police, nor do they explain his

22 No. 11-3365

use of an alias. As Brady’s flight was one of the most

important considerations behind the trial court’s ver-

dict, this gap in the witnesses’ testimony is significant.

Given that so much of the proposed testimony

was only marginally exculpatory, we do not find a rea-

sonable probability that but for counsel’s deficient per-

formance, the result of the proceedings would have

been different. Having failed to establish prejudice

even under the more generous standard of review,

Brady cannot show ineffective assistance of counsel and

is thus not entitled to a writ of habeas corpus. We

would reach the same result if we were reviewing the

entire state court record using the standards set out

in Section 2254(d). Either way, we A FFIRM the judgment

of the district court.

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