Anthony Olvera v. David Gomez ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3435
ANTHONY C. OLVERA,
Petitioner-Appellant,
v.
DAVID GOMEZ, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:15-cv-04042-SLD — Sara Darrow, Chief Judge.
____________________
ARGUED JANUARY 14, 2021 — DECIDED JUNE 22, 2021
____________________
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Petitioner Anthony Olvera was the
driver in a gang-related, drive-by shooting that resulted in the
death of an innocent bystander. An Illinois jury found
Mr. Olvera guilty of first-degree murder on the theory that he
was accountable for the shooter’s conduct. Mr. Olvera now
seeks postconviction review, claiming that his trial counsel
provided ineffective assistance by conducting an inadequate
pretrial investigation. The state courts denied Mr. Olvera’s
2 No. 18-3435
petition. He then filed this petition for habeas corpus under
28 U.S.C. § 2254. The district court denied relief. We now af-
firm the district court’s judgment.
I
BACKGROUND
Mr. Olvera’s conviction stems from the January 8, 2000,
shooting death of Stephen Stropes, the victim of a gang-re-
lated drive-by shooting in East Moline, Illinois. It is undis-
puted that Mr. Olvera’s codefendant, Kristian Delgado, fired
the shot that killed Stropes. It is also undisputed that
Mr. Olvera was the driver of the vehicle and did not fire any
shots that evening. Delgado pleaded guilty to murder, and
the State prosecuted Mr. Olvera on the theory that he was ac-
countable for Delgado’s actions that killed Stropes.
The tragic events of January 8 started with a rather trivial
argument. Mr. Olvera’s girlfriend, Guadalupe Raya, was at a
party where she got into an argument with members of the
Latin Kings gang. She accused them of using her camera to
take photos of themselves flashing gang signs. The Latin
Kings are a rival of the Bishops gang of which Mr. Olvera and
Delgado were members. Upset over the camera incident,
Raya called Mr. Olvera and asked him to pick her up from the
party. Mr. Olvera drove over with Delgado in the passenger
seat. As they approached the house where Raya was waiting,
they passed the group of Latin Kings, who also had left the
party and were standing on a street corner. Delgado fired one
shot out of the car window on the first pass; then he and
Mr. Olvera picked up Raya, turned around, sped off in the di-
rection of the Latin Kings, and fired several more shots at the
Latin Kings on the second pass. It was during the second pass
No. 18-3435 3
that a bullet struck Stropes in the head; he was later pro-
nounced dead.
A.
The State’s theory at trial was that Mr. Olvera was ac-
countable for Delgado’s firing at the Latin Kings on the sec-
ond pass and killing Stropes. 1 The State called Raya as a wit-
ness. She testified that she was at a party, got into an argu-
ment with Latin King gang members, and called Mr. Olvera
at his friend Daniel Mendoza’s house to come and pick her
up. As she waited outside for Mr. Olvera, she saw the Latin
King members and then heard a loud noise. Immediately after
hearing the loud noise, Mr. Olvera and Delgado pulled up in
Mr. Olvera’s four-door Buick sedan. Raya testified that
Mr. Olvera told her to get in the car and duck. As she hid on
the floor of the Buick’s backseat, she heard several loud noises
and smelled smoke. Raya testified that shortly after the shoot-
ing, Mr. Olvera sold the Buick sedan to an out-of-town ac-
quaintance. She also testified that she never saw a gun and
that she never heard Mr. Olvera tell Delgado to shoot at the
Latin Kings.
Raya’s friend, Alma Mendoza, who had hosted the party
on the evening of the shooting, also testified. Her testimony
corroborated Raya’s story about her getting into an argument
with the Latin Kings. Alma Mendoza also identified the Latin
1 Under Illinois law, an individual can be accountable for the criminal acts
of another if “either before or during the commission of an offense, and
with the intent to promote or facilitate that commission, he or she solicits,
aids, abets, agrees, or attempts to aid that other person in the planning or
commission of the offense.” 720 ILCS 5/5-2(c).
4 No. 18-3435
King members at the party as Michael Olvera,2 Johnny
Rigsby, Gabino Gutierrez, Leo Reyes, and Jose Perez. Alma
Mendoza told the jury that she did not want gang-related
problems at her party, so she asked Raya and the Latin Kings
to leave. She also testified that she heard something that
sounded like “three fireworks” after Raya and the group of
Latin Kings left the party.3
Tara Ramos, another partygoer, testified that she saw
Raya get into a car after leaving the party. The driver of that
car, Ramos testified, bent over and appeared to grab some-
thing from under his seat. She said that the driver yelled for
Raya to get quickly into the car, which then sped down the
street. She then heard gunshots.
Four of the Latin King members at whom Delgado fired—
Reyes, Rigsby, Michael Olvera, and Gutierrez—also testified.
The fifth member, Perez, was out of the state at the time of
Mr. Olvera’s trial.
Gutierrez testified that he and the four other Latin Kings
left the party and were standing on the corner of 15th Avenue
and 12th Street. A car pulled around the corner and stopped
next to them. The passenger then stuck a gun out the window.
As the Latin King members fled, they heard a gunshot.
Gutierrez, Perez, and Reyes ended up on 18th Avenue. There,
Gutierrez saw the car speeding closer again. On this second
pass, he testified that he saw the front-seat passenger lean out
the window before firing two or three more shots. Reyes
2 Michael Olvera is Mr. Olvera’s cousin. We will include Michael Olvera’s
first name in all references to avoid confusion with the petitioner, who we
will continue to refer to as Mr. Olvera.
3 R.8-16 at 53.
No. 18-3435 5
testified along the same lines as Gutierrez. Reyes added that
he heard someone in the car yell “King blink,” which is a dis-
respectful term to members of the Latin Kings. 4
Rigsby testified that although Perez, Reyes, and Gutierrez
fled after seeing the gun on the car’s first pass, he and Michael
Olvera remained. He also testified to hearing a single gunshot
followed by three more a short time later. Michael Olvera tes-
tified along the same lines as Rigsby.
David Routien, a local pastor and disinterested witness,
testified that he heard three gunshots as he was preparing his
evening sermon. When he looked out his window, he saw
three young Hispanic men running down 18th Avenue.
Lucille Starkey, another disinterested witness, testified
that as she was driving home from work, a four-door sedan
pulled in front of her car. Both the sedan and her car turned
onto 18th Avenue. She testified that she saw Stropes standing
by a tree, saw someone else run by him, then heard gunshots
and saw Stropes collapse. The sedan in front of her sped away
right after the gunshots. Starkey later identified Mr. Olvera’s
Buick as the car she saw.
Two witnesses testified that Mr. Olvera told Delgado to
shoot at the Latin Kings. The first was Jolene Montalvo, who
was dating Mr. Olvera’s friend, Robert Espinoza. Montalvo
initially testified in the grand jury proceedings. During her
trial testimony, Montalvo claimed not to remember events to
which she had testified during the grand jury proceeding. The
prosecutor therefore used Montalvo’s grand jury transcripts
to refresh her recollection throughout her trial testimony.
4 R.8-17 at 84.
6 No. 18-3435
Ultimately, she testified that four days after the shooting, she
overheard Mr. Olvera tell Espinoza that the Latin Kings
rushed the car and that he told Delgado to shoot in the air to
scare them away. She also testified that Mr. Olvera said the
second shooting happened when he thought the Latin Kings
were going to shoot at the car.
The other witness was Darrin Rhodes, an inmate housed
on the same cellblock as Mr. Olvera during Mr. Olvera’s pre-
trial custody. Rhodes testified that he spoke with Mr. Olvera
about his case several times and Mr. Olvera said he instructed
Delgado to shoot at the Latin Kings. Mr. Olvera also told
Rhodes that after the shooting, he and Delgado scratched the
inside of the gun barrel to prevent forensic tracing.
Mr. Olvera’s friend, Daniel Mendoza, to whose house Del-
gado and Mr. Olvera went following the shooting, also testi-
fied at the trial. Police arrested Delgado at Mendoza’s house
after the shooting and recovered evidence from the residence.
While arresting Delgado, the police recovered a .45-caliber
handgun that forensics later matched to shell casings found
near both shooting scenes. Mendoza testified that he had been
convicted for filing down the serial number on the gun and
that he had been subpoenaed to appear at the trial.
The jury also heard evidence that shortly after the shoot-
ing, Mr. Olvera sold his Buick. Police spotted the Buick ten
days after the shooting. When they stopped the car, they iden-
tified the driver as John Teague. Upon searching the car, the
police found Mr. Olvera’s license plates and registration, as
No. 18-3435 7
well as paperwork purporting to transfer the title of the car
from Mr. Olvera to “Boy Tiegue” a day earlier. 5
Mr. Olvera called a hairdresser, Marisol Sandoval, as a de-
fense witness. Sandoval testified that, according to her ap-
pointment logs, Mr. Olvera was in her salon at the time when
Montalvo said she overheard Mr. Olvera speaking to Espi-
noza at Espinoza’s apartment. Sandoval’s testimony,
Mr. Olvera contended, undercut Montalvo’s credibility.
After the parties rested, the jury deliberated for approxi-
mately one half-hour before returning a guilty verdict. The Il-
linois courts later upheld his murder conviction on direct ap-
peal. 6
B.
In May 2002, Mr. Olvera sought postconviction review of
his conviction in the Illinois state courts. His primary allega-
tion was that his trial counsel had failed to “contact or call”
several witnesses “whose testimony would have been of sig-
nificant benefit to him.” 7 In support of his petition, he at-
tached affidavits from multiple witnesses and potential wit-
nesses, seven of whom are relevant to his appeal here. 8
5 Id. at 2.
6 R.8-1 (unpublished order resolving direct appeal).
7 R.8-11 at 85.
8 There were two additional affidavits, one from partygoer Tara Ramos
and another from Mr. Olvera’s friend Rose Garza. The state appellate
court concluded that neither impacted the ineffective assistance inquiry,
and Mr. Olvera does not challenge the decision with respect to those two
affidavits.
8 No. 18-3435
First, Robert Espinoza averred that his girlfriend, Mon-
talvo, testified falsely to having overheard Mr. Olvera admit
to Espinoza that he had told Delgado to fire at the Latin Kings.
According to Espinoza, no such conversation occurred. Espi-
noza posited that Montalvo had lied to gain leniency in a fed-
eral racketeering case he faced at the time of Mr. Olvera’s trial.
Espinoza also noted that Mr. Olvera’s attorney knew of his
whereabouts during the trial but never contacted him.
Second, Damian Olvera, another cousin of Mr. Olvera,
averred that he heard Espinoza tell Montalvo on multiple oc-
casions to testify against Mr. Olvera. Damian Olvera did not
come forward with this information until May 2002, after
speaking with Mr. Olvera.
Third, Daniel Mendoza averred that he was with
Mr. Olvera and Delgado on the night of the shooting. He
claimed that Mr. Olvera received a call from Raya to pick her
up from the party and that he did not hear Mr. Olvera ask
Delgado to accompany him.
Fourth, John Teague averred that he purchased
Mr. Olvera’s Buick following the shooting. He also claimed
that he was already in discussions with Mr. Olvera about buy-
ing the car prior to the shooting. He added that Mr. Olvera’s
counsel never contacted him about testifying. Teague has
since died.
Fifth, Jose Perez, the Latin Kings member who was una-
vailable during Mr. Olvera’s trial, averred that after
Mr. Olvera’s car turned onto 18th Avenue, he saw Reyes run
at the car, then heard shots fired.
Sixth, Michael Olvera averred that he overheard a conver-
sation between Perez, Reyes, and Gutierrez discussing
No. 18-3435 9
Reyes’s running at the Buick before the shots were fired. Mi-
chael Olvera did not claim in his affidavit that Mr. Olvera’s
counsel never contacted him. He did, however, state that he
would testify to hearing the conversation if called at a future
trial.
Seventh, Kristian Delgado averred that he decided to join
Mr. Olvera on the trip to pick up Raya on the night of January
8, 2000, on his own volition, not because Mr. Olvera extended
an invitation. Nor, according to Delgado’s affidavit, did
Mr. Olvera know that Delgado was carrying a firearm. Del-
gado also averred that he fired the shot in the air on the first
pass of the Latin King members without Mr. Olvera’s direc-
tion. He claimed that Mr. Olvera became upset at his decision
to fire during the first pass. On the second pass, he claimed
that one of the Latin Kings ran toward the car and he fired at
the charging person out of fear that the Latin King was going
to shoot at the Buick.
Delgado added to this account in a second affidavit. There,
he claimed that Mr. Olvera told him to get out of the car after
the first shooting but that he pointed his gun at Mr. Olvera
and said he would harm Mr. Olvera if he told anyone about
the shooting. He also added that he thought he saw a gun in
the hand of the charging Latin King. He added that his state-
ments from his own sentencing hearing, in which he said
Mr. Olvera told him to fire, were false. He now claims to have
made those statements in the hope of receiving a lesser sen-
tence. Finally, Delgado claimed that Mr. Olvera’s counsel did
not contact him about testifying on Mr. Olvera’s behalf.
The Illinois Circuit Court denied Mr. Olvera’s postconvic-
tion petition. Mr. Olvera then appealed, claiming that the af-
fidavits showed that trial defense counsel was ineffective for
10 No. 18-3435
failing to investigate the self-defense argument raised in Del-
gado’s affidavit. The Illinois Appellate Court reviewed his pe-
tition de novo and affirmed the trial court’s decision. It con-
cluded that none of the affidavits that Mr. Olvera had submit-
ted were sufficient on their own, or in combination, to estab-
lish ineffective assistance of counsel. For six of the seven affi-
davits, the appellate court held that they failed to show defi-
cient performance by Mr. Olvera’s counsel: (1) Delgado’s af-
fidavit “relate[d] to appropriate trial strategy”; (2) Daniel
Mendoza’s affidavit was both “speculative” and only stated
that Mr. Olvera did not tell Delgado to join him on the trip to
pick up Raya; (3) Teague’s affidavit was about events that
happened after the shooting, thus irrelevant to whether
Mr. Olvera was culpable under Illinois law for Delgado’s
shooting Stropes; (4) Damian Olvera’s affidavit was about in-
formation that Mr. Olvera’s counsel would not have reasona-
bly uncovered ahead of the trial; (5) Michael Olvera’s affidavit
was inadmissible hearsay; and (6) Perez was out of the state
at the time of Mr. Olvera’s trial, so he could not have been
called to testify.9 For the seventh affidavit, that from Espi-
noza, the appellate court went straight to the prejudice prong
and held that, even with Espinoza’s proposed testimony,
there was still substantial evidence to convict Mr. Olvera.
C.
After exhausting his state review, Mr. Olvera filed this pe-
tition under 28 U.S.C. § 2254, submitting that the state appel-
late court’s decision was both contrary to and an unreasona-
ble application of the Supreme Court’s holding in Strickland v.
9 R.8-5 at ¶ 17.
No. 18-3435 11
Washington, 466 U.S. 668 (1984). 10 On the “contrary to” argu-
ment, Mr. Olvera alleged that the state court required him to
prove that he would have been acquitted in order to demon-
strate prejudice. The district court rejected this argument, not-
ing that even though the state appellate court misarticulated
the Strickland prejudice definition at one point in its opinion,
it had earlier articulated the correct definition.
On the “unreasonable application” argument, the district
court found no basis to upset the state appellate court’s deci-
sion. The district court held that the state appellate court did
not unreasonably apply Strickland when it disposed of Espi-
noza’s affidavit on the prejudice prong. Even if the jury had
heard Espinoza’s proposed testimony, they still would have
heard Rhodes’s testimony about Mr. Olvera’s jailhouse con-
fession and Raya’s testimony about Mr. Olvera telling her to
duck in the Buick and then hearing the shots. The district
court also held that the state appellate court did not act un-
reasonably in resolving the other six affidavits on Strickland’s
deficient performance prong.
The district court then granted Mr. Olvera a certificate of
appealability because it believed that reasonable jurists could
disagree with its decision. See 28 U.S.C. § 2253(c).
10The parties agree that the district court correctly identified the state ap-
pellate court’s opinion as the last reasoned state court opinion, and thus
the opinion we should look to on review. See Carrion v. Butler, 835 F.3d
764, 772 (7th Cir. 2016).
12 No. 18-3435
II
DISCUSSION
We review a district court’s denial of habeas relief de
novo. 11 Felton v. Bartow, 926 F.3d 451, 464 (7th Cir. 2019).
When a person in custody pursuant to a judgment of a state
court asks the district court to grant habeas relief from a crim-
inal judgment imposed by a state court, the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) governs, and greatly
curtails, its review. See Hicks v. Hepp, 871 F.3d 513, 524 (7th
Cir. 2017). A federal court may set aside a state court’s legal
determinations only when the state court’s adjudication of the
petitioner’s claim “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1).
This standard is purposefully difficult to satisfy. See Das-
sey v. Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc) (cit-
ing Harrington v. Richter, 562 U.S. 86, 102 (2011)). Legal error
by the state court only warrants relief when the state court’s
decision is “unreasonably wrong under an objective stand-
ard.” Id. (citing Williams v. Taylor, 529 U.S. 362, 410–11 (2000)).
A state court acts contrary to Supreme Court precedent when
it “arrives at a conclusion opposite to that reached by [the Su-
preme] Court on a question of law or if the state court decides
a case differently than [the Supreme] Court has on a set of
materially indistinguishable facts.” Williams, 529 U.S. at 413.
A state court’s legal decision may also be objectively unrea-
sonable if it “identifies the correct governing legal principle
11 The district court exercised its jurisdiction under 28 U.S.C. §§ 1331, 2241,
and 2254. We exercise ours under 28 U.S.C. §§ 1291 and 2253.
No. 18-3435 13
from [the Supreme] Court’s decisions but unreasonably ap-
plies that principle to the facts of the prisoner’s case.” Id.
Mr. Olvera’s petition asserts that the state appellate court’s
decision was both contrary to and an unreasonable application
of the Supreme Court’s clearly established law in Strickland v.
Washington, 466 U.S. at 668, which sets out the framework for
evaluating ineffective assistance of counsel claims.
When a habeas petitioner challenges his conviction based
on ineffective assistance of counsel, the Supreme Court’s case
law imposes a “‘doubly deferential’ standard of review that
gives both the state court and the defense attorney the benefit
of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (quoting
Cullen v. Pinholster, 563 U.S. 170, 190 (2011)). AEDPA provides
the first layer of deference to the state court, and substantive
Sixth Amendment law provides the second layer of deference
to defense counsel. See id.It is well established that the Sixth Amendment requires
effective assistance of counsel. To determine whether a peti-
tioner has been deprived of this guarantee, we employ the fa-
miliar two-pronged test from Strickland, 466 U.S. at 688. First,
we determine whether an attorney’s “representation fell be-
low an objective standard of reasonableness.” Id. When coun-
sel makes a “thorough [pretrial] investigation of [the] law and
facts,” counsel’s trial strategy is “virtually unchallengeable.”
Id. at 690. In contrast, when counsel’s pretrial investigation is
less than complete, counsel’s strategic choices are “reasonable
precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Id. at 691. In short,
“counsel has a duty to make reasonable investigations or to
make a reasonable decision that makes particular investiga-
tions unnecessary.” Id.
14 No. 18-3435
The Supreme Court has elaborated on the Strickland stand-
ard in ways that are pertinent to the task at hand. In Wiggins
v. Smith, 539 U.S. 510, 527–28 (2003), the Court emphasized
that in applying Strickland’s first prong, we may not assume
that counsel’s decision to limit an investigation was reasona-
ble without actually inquiring into why counsel stopped in-
vestigating. 12 For example, if counsel never bothers to find
out what a potential witness may say on the stand, counsel’s
decision not to call that witness to testify cannot be passed off
as a matter of strategy. See Mosley v. Atchison, 689 F.3d 838, 848
(7th Cir. 2012) (“According to [two potential witnesses’] affi-
davits, which were treated as true for purposes of the state
courts’ summary disposition, [the petitioner’s] lawyer never
even interviewed them to learn what they might say. On that
limited record before the state courts, the courts had to as-
sume the lawyer was not aware of the specifics of their poten-
tial testimony.”). In short, assigning strategic value to coun-
sel’s decision requires addressing “the adequacy of the pre-
trial investigation, which was clearly established under Strick-
land as the critical threshold question.” Campbell v. Reardon,
780 F.3d 752, 766 (7th Cir. 2015).
Strickland’s second prong asks whether the defendant suf-
fered any prejudice as a result of counsel’s deficient perfor-
mance. See Strickland, 466 U.S. at 693. As the Supreme Court
put it in Strickland, “[w]hen a defendant challenges a convic-
tion, the question is whether there is a reasonable probability
12 See also Campbell v. Reardon, 780 F.3d 752, 764 (7th Cir. 2015) (“If coun-
sel’s decision not to investigate [two potential witnesses] was itself unrea-
sonable, then his decision not to present their testimony—and to rely on
[an alternative] theory instead—was too ill-informed to be considered rea-
sonable.”).
No. 18-3435 15
that, absent the errors, the factfinder would have had a rea-
sonable doubt respecting guilt.” Id. at 695. A reasonable prob-
ability, the Court said, “is a probability sufficient to under-
mine confidence in the outcome.” Id. at 694.
With this doubly deferential framework in mind, we first
will address Mr. Olvera’s claim that the state court acted con-
trary to Strickland, then turn to his claim that the state court
unreasonably applied Strickland.
A.
Mr. Olvera’s first argument relies on § 2254(d)(1)’s “con-
trary to” clause. He focuses on the state appellate court’s
statement that even if Espinoza’s affidavit were true, the other
evidence against Mr. Olvera “was so substantial that we can-
not find this new evidence would have resulted in an acquittal.
Therefore, we find that defendant was not prejudiced and
counsel was not ineffective.” 13 Mr. Olvera points out correctly
that Strickland, 466 U.S. at 694, only requires “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” He sub-
mits that, by misstating the burden for establishing prejudice,
the state appellate court acted contrary to Strickland. 14
13 R.8-5 at ¶ 18 (emphasis added).
14 Mr. Olvera also likens his case to Andrus v. Texas, 140 S. Ct. 1875, 1886
(2020), in which the Supreme Court found lacking the Strickland inquiry
conducted by the Texas Court of Criminal Appeals. But there, the Texas
court denied the petitioner’s Strickland claim in a single sentence, leaving
the Supreme Court to wonder whether it “considered Strickland prejudice
at all.” Id. Here, there is no doubt the Illinois Appellate Court considered
prejudice; Mr. Olvera simply contends that the court applied the wrong
definition of prejudice.
16 No. 18-3435
The State acknowledges that the appellate court was
wrong to reference acquittal in its analysis but nevertheless
contends that the court’s error was simply an inartful articu-
lation of Strickland’s prejudice inquiry. It invites our attention
to two other aspects of the state appellate court’s opinion as
evidence that the state court applied the correct Strickland
prejudice standard. First, the State notes that on the same
page that the appellate court misstated the standard, it also
quoted the correct Strickland prejudice standard. Second, the
State notes that immediately following the erroneous articu-
lation of prejudice, the state appellate court cited People v.
Thompson, 835 N.E.2d 933, 937 (Ill. App. Ct. 2005), which con-
tains the correct articulation of Strickland’s prejudice prong.
Reading the state appellate court’s opinion in its totality, the
State submits that the appellate court applied the correct
standard, even if in one part of its opinion it mistakenly artic-
ulated that standard.
The State is correct. The Supreme Court has said, explic-
itly, that “use of the unadorned word ‘probably’ is permissi-
ble shorthand when the complete Strickland standard is else-
where recited.” Holland v. Jackson, 542 U.S. 649, 655 (2004) (per
curiam). When examining a state court’s articulation of the
Strickland standard, we must keep in mind “the presumption
that state courts know and follow the law” and give their ar-
ticulation of that standard “the benefit of the doubt.” Woodford
v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). A pair of our
decisions illustrate how this deference operates in circum-
stances like those presented here. In Stanley v. Bartley, 465 F.3d
810, 813 (7th Cir. 2006), we encountered a state court opinion
that correctly stated the Strickland prejudice standard in one
section, but later stated the standard as requiring a showing
that absent counsel’s error the outcome of the trial would have
No. 18-3435 17
been different—thus appearing to raise the standard beyond
the “reasonable probability” that Strickland imposes. We gave
the state court the “benefit of the doubt,” holding that it had
not acted contrary to Strickland. Id. Instead, we observed that
because the state court “expounded the well-known standard
correctly on the previous page of its opinion, it is more likely
that the court stated its conclusion imprecisely than that it ap-
plied a different standard.” Id. (citing Visciotti, 537 U.S. at 19).
More recently, in Fayemi v. Ruskin, 966 F.3d 591, 594 (7th
Cir. 2020), we reviewed a state court decision that correctly
stated Strickland’s prejudice definition but later twice mistak-
enly asked whether the result of the case “would likely have
been different.” We rejected the petitioner’s argument that the
state court acted contrary to Strickland, instead reiterating that
“we do not attribute to the state’s judiciary an unexplained
replacement of the correct standard with an incorrect one.” Id.The more respectful approach, we said, was to treat the later
mistaken statements as shorthand for the correct definition
that the state court noted earlier in its opinion. 15 See id.
15 To be sure, these are not the only two cases that illustrate the “benefit
of the doubt” principle. Similar cases from our court include: Sussman v.
Jenkins, 636 F.3d 329, 359–60 (7th Cir. 2011) (state court opinion omitting
“reasonable probability” language in conclusion did not demonstrate that
the state court employed incorrect standard); Woods v. Schwartz, 589 F.3d
368, 378 n.3 (7th Cir. 2009) (“We have noted numerous times that there is
no error when a court has correctly noted the Strickland standard and then
used an incorrect shorthand version when stating its conclusion.”). Our
case law is also consistent with that from our sister circuits. See, e.g., Charles
v. Stephens, 736 F.3d 380, 393 (5th Cir. 2013) (explaining that, viewed as a
whole, the state court’s opinion “indicates that the state habeas court omit-
ted the ‘reasonable probability’ modifier not due to its incorrect under-
standing of the prejudice standard, but as a shorthand method to refer to
18 No. 18-3435
Mr. Olvera attempts to distinguish his case from the others
we have decided by noting the exact wording of the mistaken
prejudice definition here. He correctly notes that our past
cases involved different incorrect formulations of Strickland’s
prejudice prong. Yet those slight differences do not make for
a genuine distinction. We still give the state court the benefit
of the doubt. See Visciotti, 537 U.S. at 24. And our past deci-
sions encountered mistaken definitions of roughly equal sig-
nificance. See, e.g., Sussman v. Jenkins, 636 F.3d 329, 359–60 (7th
Cir. 2011) (state court opinion omitted “reasonable probabil-
ity” when defining prejudice but was not contrary to Strick-
land).
Mr. Olvera admits that the state appellate court included
the correct Strickland framework on the same page that it
stated the mistaken definition of prejudice. As we said in
Fayemi, the approach that most respects the state appellate
court is to treat the second, mistaken statement as a shorthand
for the earlier correct definition. Treating the mistaken defini-
tion as shorthand makes even more sense in Mr. Olvera’s case
because the state court followed the statement with a citation
to a decision that included the correct definition of preju-
dice. 16 Absent circumstances that would raise a grave concern
that the state court actually applied a contrary standard, we
see no basis to override the benefit of the doubt that § 2254
provides to the state court’s decision.
the correct standard”); Williams v. Roper, 695 F.3d 825, 832 (8th Cir. 2012)
(similar); Bledsoe v. Bruce, 569 F.3d 1223, 1231–33 (10th Cir. 2009) (similar).
16R.8-5 at ¶ 18 (citing People v. Thompson, 835 N.E.2d 933 (Ill. App. Ct.
2005)).
No. 18-3435 19
B.
We now examine Mr. Olvera’s contention that the state ap-
pellate court unreasonably applied Strickland when it held
that the affidavits that he submitted in support of his state pe-
tition did not, individually or collectively, demonstrate inef-
fective assistance of counsel. The state appellate court con-
cluded that Mr. Olvera’s counsel was not ineffective. Yet the
state court’s opinion left some aspects of Mr. Olvera’s fail-
ure-to-investigate claim largely unaddressed. As Mr. Olvera,
the State, and the district court note, the state appellate court’s
analysis is rather succinct and this factor complicates our
presentation. 17 For ease of reading, we therefore summarize
at the outset our conclusions with respect to the merits of
Mr. Olvera’s specific unreasonable application arguments:
The state court did not unreasonably apply Strickland when it
concluded that Espinoza’s affidavit failed to demonstrate
prejudice and when it concluded that Daniel Mendoza’s,
Damian Olvera’s, and Michael Olvera’s affidavits failed to
demonstrate deficient performance; as for Teague’s, Del-
gado’s, and Perez’s affidavits, even if we assume the state
court unreasonably applied the deficient performance prong,
we conclude that those affidavits do not establish prejudice
(an issue we review de novo because the state court never
reached the question).
17 The district court’s opinion is far more thorough, but our task is to re-
view the state appellate court’s reasoning, not the district court’s. See Wil-
son v. Sellers, 138 S. Ct. 1188, 1192 (2018) (“[W]hen the last state court to
decide a prisoner’s federal claim explains its decision on the merits in a
reasoned opinion[,] … a federal habeas court simply reviews the specific
reasons given by the state court and defers to those reasons if they are
reasonable.”).
20 No. 18-3435
1.
a.
Because our inquiry depends, in part, on an understand-
ing of accountability and self-defense under Illinois law, we
begin by examining the relevant provisions.
On the fateful evening, Mr. Olvera never fired a shot. Un-
der Illinois law, however, an individual can be accountable
for the criminal acts of another if “either before or during the
commission of an offense, and with the intent to promote or
facilitate that commission, he or she solicits, aids, abets,
agrees, or attempts to aid that other person in the planning or
commission of the offense.” 720 ILCS 5/5-2(c). To prove the
defendant’s accountability, “the State may present evidence
that either (1) the defendant shared the criminal intent of the
principal, or (2) there was a common criminal design.” People
v. Fernandez, 6 N.E.3d 145, 149 (Ill. 2014). In Mr. Olvera’s case,
the State argued that the facts demonstrated both a shared in-
tent and common design.
As for Illinois law of self-defense, an individual “is justi-
fied in the use of force which is intended or likely to cause
death or great bodily harm only if he reasonably believes that
such force is necessary to prevent imminent death or great
bodily harm to himself or another, or the commission of a for-
cible felony.” 720 ILCS 5/7-1(a). Relying on a self-defense ar-
gument is much more difficult for an initial aggressor. Under
Illinois law, someone who “initially provokes the use of force
against himself” cannot argue self-defense unless, among
other things, he “exhausted every reasonable means to es-
cape” the dangerous situation he started. 720 ILCS 5/7-4(c)(1).
No. 18-3435 21
b.
As we turn to an examination of the state appellate court’s
evaluation of Mr. Olvera’s petition, it is important to keep
Mr. Olvera’s contentions in proper focus. He bases his appeal
on the seven affidavits that we recounted earlier. But,
throughout our consideration of his contentions, we must not
lose sight of the evidence from Mr. Olvera’s trial that remains
untouched by his arguments. Raya testified that when
Mr. Olvera picked her up at the party, he hurried her into the
Buick, told her to duck down in the back seat, then sped off
shortly before she heard loud bangs and smelled smoke.
Rhodes, Mr. Olvera’s cellblock confidant, testified that
Mr. Olvera confessed to ordering Delgado to shoot at the
Latin Kings. These two witnesses were important pieces in the
State’s case, and the core of their testimony remains intact.
2.
With these threshold matters in mind, we now address
those aspects of Mr. Olvera’s petition where our analysis
tracks the state appellate court’s, then move on to the affida-
vits where our discussion diverges.
a.
In his affidavit, Espinoza claims that Montalvo lied when
she testified that she had overheard Mr. Olvera admit to Es-
pinoza that he ordered Delgado to shoot at the Latin Kings.
Mr. Olvera now apparently faults his counsel for not investi-
gating this line of impeachment.
We agree with the state appellate court that Espinoza’s as-
sertion does not establish prejudice. Mr. Olvera overstates the
importance of Montalvo’s testimony. By the time she testified
at Mr. Olvera’s trial, Montalvo had become a largely
22 No. 18-3435
uncooperative witness. Her trial testimony consisted mostly
of her stating that she did not remember the events in ques-
tion, which required the prosecutor to rely on her earlier
grand jury testimony. And as we noted, the jury still would
have heard Raya’s testimony about the moments before the
shooting and Rhodes’s testimony about Mr. Olvera’s prison
confession. The state appellate court did not unreasonably ap-
ply Strickland when it concluded that Espinoza’s information
did not demonstrate prejudice. 18
b.
We next consider the state appellate court’s determination
that Damian Olvera’s, Daniel Mendoza’s, and Michael
Olvera’s affidavits failed to demonstrate deficient perfor-
mance. Even though there was no evidentiary hearing on
Mr. Olvera’s petition, it is clear from the face of these three
affidavits that they fail to demonstrate ineffective assistance
on the part of Mr. Olvera’s trial counsel.
Damian Olvera states in his affidavit that he overheard Es-
pinoza tell Montalvo to lie on the stand. He admits in his affi-
davit, however, that he did not come forward with this infor-
mation until 2002, well after the trial. Even a thorough
18 We would be remiss if we did not also mention that Mr. Olvera’s trial
counsel submitted an affidavit stating that Mr. Olvera “specifically in-
structed” him “not to interview Mr. Espinoza.” R.8-12 at 8. When a com-
petent defendant specifically instructs counsel not to interview a potential
witness, that instruction significantly limits counsel’s investigative obliga-
tions as to that witness. See Strickland v. Washington, 466 U.S. 668, 691
(1984) (a client’s information and instructions define counsel’s responsi-
bility to investigate). Though the state appellate court did not reach the
deficient performance question with respect to Espinoza’s affidavit, we
are hard-pressed to see how Mr. Olvera could make that showing.
No. 18-3435 23
investigation would be unlikely to reach Damian Olvera, who
played no role in the evening of the shooting. Counsel’s in-
vestigation, therefore, was not deficient for failing to uncover
Damian Olvera.
As for Daniel Mendoza, the record shows that
Mr. Olvera’s counsel did speak with Daniel Mendoza ahead
of the trial and Mendoza refused to testify on Mr. Olvera’s
behalf. Moreover, Daniel Mendoza ultimately did testify at
the trial under a subpoena but overall was reluctant to say
much of anything during his testimony. Counsel’s investiga-
tion with respect to Daniel Mendoza was therefore reasona-
ble; it is only well after the fact that Daniel Mendoza decided
he has something meaningful to say.
We reach the same conclusion regarding the state appel-
late court’s treatment of Michael Olvera’s affidavit. There, Mi-
chael Olvera claimed that he overheard a conversation be-
tween Perez, Reyes, and Gutierrez, in which they stated that
Reyes ran toward Mr. Olvera’s car and that Delgado’s shots
appeared to have been in response to Reyes’s action. The state
appellate court concluded that Mr. Olvera’s counsel was not
ineffective for allegedly failing to uncover this information.
We agree that, even without holding an evidentiary hearing,
the state appellate court’s conclusion was reasonable. Unlike
the other affidavits, Michael Olvera’s affidavit does not claim
that Mr. Olvera’s counsel failed to contact him before the trial.
As the state appellate court noted, Michael Olvera’s offer to
testify about a conversation he allegedly overheard was rank
hearsay not subject to any identifiable exception. Mr. Olvera
has offered no case law suggesting counsel has an obligation
to uncover and then use inadmissible hearsay. Moreover, Mi-
chael Olvera, Reyes, and Gutierrez all testified at Mr. Olvera’s
24 No. 18-3435
trial and were cross examined by Mr. Olvera’s counsel about
the night of the shooting. 19 None offered the description of
events that Michael Olvera now claims he overheard.
3.
We now turn to those situations where we believe that the
state appellate court’s assessment of the submitted affidavits
is problematic and where our own discussion necessarily
must diverge from that of the state court.
The state appellate court concluded that Delgado’s affida-
vit failed to demonstrate deficient performance because coun-
sel’s decision not to interview Delgado or call him as a witness
“relate[d] to appropriate trial strategy.”20 For Teague’s affida-
vit, the state appellate court concluded it was not deficient
performance to fail to investigate whether Teague’s plans to
buy Mr. Olvera’s car predated the shooting because that in-
formation “had no relevance to the commission of the
crime.” 21 For Perez’s affidavit, in which he says he saw Reyes
run at Mr. Olvera’s car before the shooting, the state appellate
court concluded counsel’s failure to interview Perez or call
him as a witness was not deficient because Perez “was out of
the state during the trial, and therefore counsel could not have
called him to testify.” 22
The issue, as we see it, is not that the state appellate court
was necessarily wrong in concluding that Mr. Olvera failed to
19Perez did not testify at Mr. Olvera’s trial. We address his information
below.
20 R.8-5 at ¶ 17.
21 Id.
22 Id.No. 18-3435 25
demonstrate deficient performance when he alleged counsel’s
failure to investigate Teague’s, Delgado’s, and Perez’s infor-
mation. Rather, the issue is that the state appellate court de-
cided that counsel’s investigation of these three potential wit-
nesses was reasonable without nearly enough information
about the scope of counsel’s investigation. The affidavit sup-
plied by Mr. Olvera’s trial counsel in the state court proceed-
ings offered no insight into these three witnesses, and the
state court held no hearing into counsel’s alleged decision not
to investigate what information these witnesses had to offer.
The key principle at stake here is that Strickland’s pre-
sumption that counsel’s decisions were reasonable “applies
only if the lawyer actually exercised judgment.” Mosley, 689
F.3d at 848. When it comes to failure-to-investigate claims,
Strickland does not permit courts to simply assume counsel
acted strategically in not calling a witness when the allegation
is that counsel never investigated what that witness would
have to say. See id. Without knowing the scope of counsel’s
pretrial investigation, the state court cannot answer the “crit-
ical threshold question” of whether that investigation was ad-
equate. Campbell, 780 F.3d at 766. That is why we have so often
emphasized—and emphasize again today—that if a state
court is going to conclude that trial counsel conducted a rea-
sonable investigation, the state court must actually under-
stand the scope of counsel’s investigation. See Gish v. Hepp,
955 F.3d 597, 604 (7th Cir.), cert. denied, 141 S. Ct. 681 (2020);
Mosley, 689 F.3d at 848; Davis v. Lambert, 388 F.3d 1052, 1061
(7th Cir. 2004).
Typically, a state court can gain an understanding of trial
counsel’s investigative decisionmaking by reviewing a de-
tailed affidavit from counsel or holding an evidentiary
26 No. 18-3435
hearing. Cf. Lambert, 388 F.3d at 1061 (discussing the role of
witness affidavits and state court evidentiary hearings in de-
veloping the factual record for a failure-to-investigate claim).
As the Supreme Court noted in Strickland, 466 U.S. at 691,“when the facts that support a certain potential line of defense
are generally known to counsel because of what the defend-
ant has said, the need for further investigation may be consid-
erably diminished or eliminated altogether.” As Strickland
also observed, the “inquiry into counsel’s conversations with
the defendant may be critical to a proper assessment of coun-
sel’s investigation decisions.” Id. The facts in Delgado’s and
Teague’s affidavits are all facts Mr. Olvera would have known
and could have told his attorney. But, here, the state court
lacked insight into Mr. Olvera’s conversations with his trial
counsel. Without that insight, it could not determine whether
counsel’s alleged failure to investigate constitutes substand-
ard performance.
Given these circumstances, we assume, for present pur-
poses, that the three affidavits at issue demonstrated deficient
performance and therefore turn our attention to prejudice. Be-
cause the state appellate court did not address Strickland’s
prejudice prong when examining Teague’s, Delgado’s, and
Perez’s affidavits, our inquiry proceeds de novo. See Gish, 955
F.3d at 604–05 (assuming the state appellate court unreasona-
bly applied the deficient performance prong and then moving
to review de novo the previously unaddressed prejudice
prong).
Mr. Olvera submits that the evidence in Teague’s, Del-
gado’s, and Perez’s affidavits undercuts the State’s accounta-
bility theory and presents a viable self-defense argument.
Starting with the affidavits’ impact on the accountability
No. 18-3435 27
theory, we conclude that the information in those affidavits
does not undermine confidence in the jury’s verdict. Teague’s
claim that he planned to buy Mr. Olvera’s Buick before the
shooting is hardly significant. Although Mr. Olvera contends
that the affidavit shows he was not trying to quickly dispose
of evidence of his criminal activity, Teague’s affidavit easily
cuts the other way. There is no dispute that Teague obtained
possession of the car right after the shooting. That Teague
showed interest in the car ahead of the shooting may just
mean that Mr. Olvera knew he had a ready buyer and could
rid himself of evidence that could tie him to the shooting.
With respect to the claims in Delgado’s affidavit, these con-
tradict the statements Delgado made during his own sentenc-
ing that implicated Mr. Olvera in the shooting. It is notable,
too, that Delgado’s first affidavit filed alongside this petition
lacked any mention of the more dramatic allegations included
in his second affidavit. 23
Even when we consider Teague’s, Perez’s, and Delgado’s
affidavits, there simply is no reasonable probability that the
outcome of the case would have been different. The jury still
would have heard Rhodes testify that Mr. Olvera admitted to
ordering Delgado to fire at the Latin King members during
the second shooting. Moreover, the fatal shooting happened
on the second pass of the Latin King members, and Raya tes-
tified that Mr. Olvera instructed her to duck down before that
shooting occurred. That is strong evidence that Mr. Olvera
was accountable for Delgado’s shooting Stropes.
Mr. Olvera’s self-defense argument is even less persua-
sive. Illinois law makes clear that an initial aggressor cannot
23 See supra, at 9.
28 No. 18-3435
claim self-defense unless he “exhausted every reasonable
means to escape” the dangerous situation he started. 720
ILCS 5/7-4(c)(1). The evidence at trial showed that Mr. Olvera
and Delgado fired one shot on their first pass of the Latin King
members, then additional shots on their second pass. It was
during the second pass that Delgado shot and killed Stropes.
None of the affidavits undercut this basic timeline. As Ramos,
one of the partygoers, testified at trial, Mr. Olvera pulled up,
yelled for Raya to hurry into the car, then “took off real fast”
shortly before Ramos heard the second set of gunshots. 24 And
the jury could reasonably interpret Raya’s testimony about
Mr. Olvera’s telling her to duck in the backseat to mean that
Mr. Olvera knew more violence was about to occur.
The shooting on the first pass made Mr. Olvera and Del-
gado the initial aggressors. Self-defense, therefore, is unavail-
able to them unless they exhausted every reasonable means
of escape. It is clear that they did not. Instead, they drove back
in the direction of the Latin Kings and fired more shots. Even
if Reyes did run at the car, that does not change the fact that
Mr. Olvera and Delgado were the initial aggressors. As a re-
sult, Mr. Olvera’s new self-defense claim does not undermine
confidence in the verdict.
Even if we assume that Mr. Olvera’s trial counsel con-
ducted an inadequate investigation into Delgado’s, Teague’s,
and Perez’s information, there was no prejudice to
Mr. Olvera. Looking at all of the information available, the
overwhelming evidence supports the State’s accountability
theory and precludes Mr. Olvera’s claim of self-defense.
24 R.8-16 at 82.
No. 18-3435 29
Conclusion
In sum, we reject Mr. Olvera’s contention that the state
court’s articulation of the Strickland standard was contrary to
the Supreme Court’s clearly established law. We also hold
that the state court did not unreasonably apply Strickland
when it concluded that Espinoza’s affidavit failed to demon-
strate prejudice and when it concluded that Daniel Men-
doza’s, Damian Olvera’s, and Michael Olvera’s affidavits
failed to demonstrate deficient performance. As for Teague’s,
Delgado’s, and Perez’s affidavits, even if we assume the state
court unreasonably applied the deficient performance prong,
those affidavits do not establish prejudice.
Consequently, Mr. Olvera has failed to demonstrate inef-
fective assistance by his trial counsel. We therefore affirm the
district court’s denial of his petition under 28 U.S.C. § 2254.
AFFIRMED