Martin Woolley v. Dave Rednour ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3550
M ARTIN M. W OOLLEY,
Petitioner-Appellant,
v.
D AVE R EDNOUR,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 4:09-cv-04084— Michael M. Mihm, Judge.
A RGUED JUNE 3, 2011 — D ECIDED D ECEMBER 14, 2012
Before E VANSΠand W ILLIAMS, Circuit Judges, and C ONLEY,
District Judge.ŒŒ
Œ
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being resolved
by a quorum of the panel under 28 U.S.C. § 46(d).
ŒŒ
The Honorable William M. Conley, Chief Judge of the
United States District Court for the Western District of Wiscon-
sin, sitting by designation.
2 No. 10-3550
W ILLIAMS, Circuit Judge. Martin M. Woolley was
charged in Illinois state court with counts of murder,
armed violence, armed robbery, and unlawful possession
of a firearm by a felon, arising out the fatal shootings
of two victims in 1995. After initially confessing, Martin
later recanted, claiming he had falsely implicated
himself in order to protect his wife, Marcia Woolley,
who committed the murders out of jealousy toward one
of the victims. The jury convicted the defendant on all
counts. In state post-conviction procedures, Martin
produced an expert who pointed out flaws in
expert evidence introduced by the State at trial.
After obtaining no relief and exhausting review in
state court, Martin filed a federal habeas corpus petition
pursuant to 28 U.S.C. § 2254, claiming that he was
deprived of his constitutional right to effective assistance
of counsel. The district court denied Martin relief,
but granted a certificate of appealability with respect to
his claim that he was prejudiced by ineffective assistance
of counsel. Martin appealed. Although Martin’s
counsel was ineffective, we affirm because we find
that Martin was not prejudiced by the error.
I. BACKGROUND
Around 10:00 p.m. on February 20, 1995, the bodies
of Rane Baldwin and Dianna “Dee” Turley were found
in Phylly’s Cue and Brew tavern in Kewanee, Illinois.
Nine hours earlier, at 1:00 p.m. on February 20, 1995,
Martin Woolley (“Martin”) and his wife, Marcia Woolley
(“Marcia”), went to Phylly’s Cue to play pool and drink
No. 10-3550 3
beer with friends. The Woolleys left the tavern around
5:00 p.m. to go home and prepare dinner for Marcia’s
children. They returned to the tavern around 6:00 p.m.
and continued to drink beer and play pool. At approxi-
mately 7:00 p.m., Baldwin arrived and began
her bartending shift. Turley arrived around 8:00 p.m.
When Turley arrived, Marcia started to drink shots
of hard liquor as well as beer. Soon, Marcia and Turley
began arguing with each other while sitting at the bar.
By approximately 9:30 p.m., everyone had left the
tavern except for Turley, Baldwin, Marcia, and Martin.
At 9:45 p.m., Baldwin’s boyfriend, Peter Dolieslager,
called the tavern and spoke to Baldwin who told
Dolieslager that Marcia was getting drunk. According
to Dolieslager, Baldwin gave him the impression that
Marcia was being difficult.
A few minutes later, Dolieslager drove to the tavern to
pick Baldwin up. When he arrived around 10:00 p.m.,
he discovered the bodies of Turley and Baldwin. An
autopsy revealed that Turley had been shot once in
the forehead from a distance of three to four feet and
that the bullet entered her head at a slightly upward angle.
Baldwin had been shot three times in the head. The
pathologist concluded that the bullets that struck Baldwin
had not been fired at close range.
A. Martin’s Initial Confession
The next day, Martin and Marcia voluntarily went to the
Kewanee police station for questioning. Martin initially
4 No. 10-3550
denied any involvement in the murders, but eventually
confessed. He told the officers that Marcia and he
were both drinking beer and playing pool at the tav-
ern. Around 9:30 p.m., Turley, Marcia, and Martin, in that
order from east to west, were sitting on some bar stools
along the bar. Martin then decided to rob the tavern. He
pulled out a 9-millimeter hand gun he had been carrying in
the back of his pants and shot Baldwin, who was standing
behind the bar, two or three times in the head. He then
shot Turley, whom Martin claimed was standing, while
Marcia was still sitting on her barstool. Martin then walked
around behind the bar, took the cash from the register as
well as two money bags that were located underneath the
register. While Martin was taking the money, Baldwin
made a noise and Martin shot her again in the head from
behind the bar. Martin then grabbed Marcia and dragged
her out of the bar.
When the Woolleys got home, Martin burned the money
bags and hid the $300 in cash in a hole in the wall of
a closet. He put the gun in a freezer located in a
friend’s garage. The next day, Martin asked his friend
to throw the gun into the river, but his friend turned it
over to the police. Martin told the police that Marcia
did not handle the gun and that she had no knowledge of
what he was going to do.
B. Martin’s Trial Testimony Recanting His Confession
During trial, Martin testified in his own defense and
recanted his prior confession. He told the jury that around
9:30 p.m., Marcia and Turley were arguing as they
No. 10-3550 5
had been all evening. Martin decided to leave the
women and go to the men’s bathroom to smoke marijuana.
He stated that he had previously put the gun in his
jacket pocket when he had stopped at home to prepare
dinner for Marcia’s children. He left that jacket on
the barstool on his way to the bathroom. While he was
away from the bar, he heard raised voices followed by
gunshots. He ran out of the bathroom and saw
Marcia standing up with a foot propped up on her bar-
stool, leaning over the top of the bar. Martin testified that
he then saw Marcia shoot down towards the bartender’s
side of the bar. Turley was lying next to the barstool.
Not knowing what else to do, Martin attempted to make
the scene look like a robbery. He walked around the bar
and took the cash. He then drove home with Marcia.
Once home, Martin disposed of the gun. The couple
agreed that if the police pursued them, both would say
that Martin committed the murders. Marcia had three
children from a previous marriage, and Martin testified
that he thought that he needed to take the blame for
the shootings to protect them because the children would
“not miss a step-dad as much as a mother.”
C. The State’s Expert Crime Scene Investigator
A central component of the prosecution’s case was
expert testimony to the effect that the shooter must
have fired the shots from the bathroom area near the
southwest corner of the bar and that Martin’s account
of the shootings was physically impossible. Martin was
represented by Eugene Stockton, a part-time public
6 No. 10-3550
defender and former State’s Attorney. Over two
months before trial, Stockton prepared a written statement
explaining what Martin had witnessed and his anticipated
trial testimony. So the prosecution had advance notice
that Martin would testify that he was in the men’s
restroom area when Marcia fired the first few shots,
that Marcia fired the final shot from her barstool, and
that Martin went behind the bar to steal the cash from the
register.
About a month before trial, the State gave Stockton a
crime scene report authored by Michael Ogryzek, the crime
scene investigator the State would later call as an ex-
pert. The report disclosed Ogryzek’s opinion that the
shooter was located in the southwest corner of the
tavern by the men’s restroom when at least one of the
shots was fired. This was about 18 feet from Marcia’s
location in the same area in which Martin would
testify that he was located at the time of the shootings.
Ogryzek’s conclusions were at odds with earlier investiga-
tions of the crime scene following the murders.
Initially, police investigators had determined that the
location of the shots was consistent with Martin’s confes-
sion that they had been fired from the barstools where
Martin and Marcia had been sitting.
At trial, Ogryzek testified that the physical evidence
showed that the person who fired the final shot at
Baldwin was standing above her on the bartender’s side
of the bar. Stockton did not learn of that opinion until
the day trial began, when the State supplemented its
answer to the pretrial order. Stockton knew that the
No. 10-3550 7
State’s disclosure was untimely, and knew the opinion
would directly refute Martin’s testimony, but he did
not request a continuance to address it or make any motion
to bar Ogryzek’s testimony.
Ogryzek also testified that it would have been physically
impossible for a person where Marcia was located to have
delivered the final shot to Baldwin from her position in the
third barstool in the manner Martin would testify:
[Prosecutor.] Based on your expertise, Officer Ogryzek,
could a person with a foot on the bar stool, the third
bar stool with their knee on the bar leaning over, have
made that shot?
[Ogryzek.] No. It is impossible.
[Prosecutor.] How long would that person’s arms have
to be, to be in that barstool, a foot on the barstool, a
knee up on the bar reaching over . . . [for a gun shot to]
come in at that angle that that gun shot above Rane
Baldwin’s ear came in?
[Ogryzek.] Oh, twelve feet.
Stockton cross-examined Ogryzek but did not get conces-
sions of any significance.
D. Other Trial Testimony
Several other witnesses testified for the prosecution.
One witness testified that while the group was playing
pool at the tavern, she saw the imprint of a gun under
Martin’s shirt stuck in the back of his pants and that
she never saw him move the gun from his pants to his
8 No. 10-3550
jacket pocket. Another witness testified that on the night
of the murders, Martin made a comment saying that he
was the type of person who “could walk into McDonald’s
and just open up on everybody.” A third witness testified
that two nights before Martin commented that it would
be easy to commit a robbery if you killed the witnesses.
The State also called Donald Tomsha. In March of 1995,
Tomsha was in jail and had been charged with burglarizing
three businesses. Tomsha later pleaded guilty and
received six months in jail and probation. Tomsha testified
that Martin confessed to him after the two had
begun discussing religion and morality. According
to Tomsha, Martin was unhappy that Marcia was not
charged for her role in the murders. Martin allegedly told
Tomsha that Marcia must have discovered “our pistol” in
his jacket as she reached for cigarettes. Tomsha testified
that he had questioned Martin’s credibility, at which
point Martin confessed that he shot Baldwin as she
was turning up the volume of the television at his re-
quest. Martin allegedly then handed the gun to his wife to
shoot Turley, but Marcia “froze” and Martin took the gun
back and shot Turley. Tomsha also testified that Martin
told him that he and Marcia planned to rob the tavern that
night because it was less busy on Mondays.
Tomsha claimed he convinced Martin to write out
and sign written confessions to take accountability for
his actions. Martin wrote the account down on a legal
pad and signed it in his presence. He later supplemented
the confession to include a version emphasizing Marcia’s
role as a co-conspirator in the shootings. Tomsha
then delivered the statements to authorities.
No. 10-3550 9
At trial, the prosecution produced an FBI handwriting
expert who confirmed that the signatures on the docu-
ments matched Martin’s and did not belong to
Tomsha. The expert could not establish that the informa-
tion contained inside the docum ents m atched
Martin’s handwriting. But the expert explained that Martin
refused to provide a natural handwriting exemplar
to permit an adequate comparison.
For the defense, Stockton called witnesses who testified
that Marcia had harbored a grudge against Turley for
over a year. Marcia had made many statements to the effect
that Turley would “get hers someday.” Additionally,
two nights before the murders, Martin and Baldwin
had discovered that they had attended school together
and had engaged in a lengthy conversation. Witnesses
testified for the defense that Marcia was “visibly upset”
that Martin and Baldwin were talking. Marcia’s ex-hus-
band also testified that Marcia had become violent with
him in the past. Further, it came out at trial that because
Marcia had worked at the tavern previously, the Woolleys
knew that very little money was kept at the tavern, that the
tavern had the most money on Thursdays, and was less
crowded on Mondays.
During closing arguments, Stockton made an attempt
to address Ogryzek’s testimony by drawing a picture on
his yellow legal pad and making the following presenta-
tion:
Then, —I don’t know, I am not a very good artist,—this
is her shoulder, the head is straight . . . based on their
testimony that I believe the bullet would have traveled
10 No. 10-3550
. . . if you tilt the head down to make contact with the
floor, that makes the bullet almost straight up and
down . . . . [Ogryzek’s testimony] was inconsistent with
what Dr. Jumbelic [the autopsy pathologist] said about
the angle of that bullet, and was even inconsistent with
what he was saying.
Stockton also told the jury that the crime scene did not fit
with Ogryzek’s testimony given the angles of the bullets.
He argued that it would not have made sense for Martin
to go to the bathroom area and shoot the victims from
a distance when he was free to fire at them from
close range. He emphasized that the bullet that hit Baldwin
was going up, and that the prosecution could not
explain the upward angle of that bullet if Martin, who
was over six feet tall, had been the shooter, but that the
angle could have easily been accomplished by Marcia,
who was five feet and five inches tall, sitting on the
barstool. He also called into question Tomsha’s statement
by noting that it would not have made sense for Turley to
have stayed seated on the barstool while Martin
and Marcia argued about who was going to shoot her.
In rebuttal, the prosecution stated:
You were told by Mr. Stockton that Martin Woolley
couldn’t have made the third shot because he was
standing by the cash register. . . . [B]ut the shot still
came . . . from the bar area. . . . Now you heard experts
testify as to angles, and I submit to you that you
can’t rely on a rough drawing made on a legal pad as
to angles here, because I submit to you that this is not
the evidence.
No. 10-3550 11
Martin was convicted and sentenced to death.
His sentence was commuted to life in prison when Illinois’s
governor commuted the sentences of all inmates on
death row. Martin’s conviction was upheld on appeal
before he sought post-conviction relief.
E. Post-Conviction Proceedings
During state post-conviction proceedings, Martin’s
current counsel retained Alva Busch, a crime scene recon-
struction expert with 20 years of experience who
would have been available to testify at Martin’s trial.
According to Busch’s analysis, the physical evidence
shows that neither the State’s theory nor Martin’s initial
confession could be true. Busch opined that the shooter
must have been located around the area of the barstools.
Using the police’s crime scene measurements, Busch
built a true-to-scale mockup of the bar and reconstructed
the crime scene, reflected in the picture below.
Busch conducted an experiment by giving a woman
of Marcia’s build and height a model gun. A rod
was attached to the gun to show the trajectory of the bullet
where the gun was to be fired. Busch found that the wound
trajectory, the abrasion ring around the wound, and the
angle and damage around the hole in the floorboards
underneath Baldwin’s head all confirmed that the shot
came from the patrons’ side of the bar.
12 No. 10-3550
The shot would have been even easier had the person
had a foot on a barstool. Moreover, Busch concluded
that Ogryzek’s testimony that the final shot came
from someone on the bartender’s side of the bar near
Baldwin’s feet was wrong because, had the shooter been
at Baldwin’s feet as Ogryzek claimed, the wound trajectory
would have pointed in nearly the opposite direction.
This testimony would have contradicted and undermined
both Ogryzek’s testimony and Martin’s confession to
the police that he was behind the bar when he fired the last
shot at Baldwin.
Busch also concluded that the trajectory of the bullet
holes caused by the initial shots to both Baldwin
and Turley were consistent with a shooter being located
by the barstools and that the shots could not have
been made by someone coming out of the men’s restroom.
First, the bullet that caused Turley’s wound was found
in the tavern’s east door. Had the bullet been fired
No. 10-3550 13
by someone by the men’s restroom or walking along the
south wall (as Ogryzek testified), the bullet would
have had to change its course almost 90 degrees after
striking Turley to end up in the east door. The diagram
below reflects the tavern’s layout and locations of Marcia
Woolley, Turley, and Baldwin at the time of the shootings.
In contrast, Marcia had been seen sitting directly to
the west side of Turley, meaning that she would have
been in an ideal position for a bullet to pass through
Turley and hit the east door. Second, Turley’s autopsy
report and photographs showed gunpowder residue
called “stippling” around Turley’s wound. Stippling
is only caused by gunshots fired at a distance of four feet
or less. Ogryzek testified that Martin was about 18
feet from Turley when he shot her from the bathroom.
14 No. 10-3550
In contrast, Marcia’s barstool was less than four feet
from Turley. Third, Turley was shot in the forehead
and the bullet exited the back of her head at an
upward angle. Had the shooter been standing or walking,
the gun would have been level or above the wound; but
if the gun had been held by someone sitting on Marcia’s
barstool, the gun would have been lower than Turley’s
forehead and the wound angle would have been upward.
This testimony was presented during an evidentiary
hearing held before the circuit court of Henry County,
Illinois. Stockton also testified that obtaining an expert
to rebut Ogryzek’s testimony would have been “ideal,”
and although court funds were available for the purpose
of procuring experts, Stockton took no steps to find
an expert or apply for available funds. He testified that
the idea of seeking expert assistance “never crossed
[his] mind,” and that he did not know whether such
experts were available to the defense in 1995. Busch
later testified that there were a number of such experts
available in 1995.
Based on this new testimony, Martin argued
that Stockton’s failure to procure an expert to rebut
Ogryzek’s testimony constituted ineffective assistance
of counsel. Applying Strickland v. Washington, 466 U.S. 668(1984), the court concluded that while Martin’s
attorney did cross-examine Ogryzek in an attempt to
discredit his opinions, counsel was ineffective because
“more should have been done.” It then found that “Peti-
tioner’s counsel’s failure to retain an expert witness, ask
No. 10-3550 15
for a continuance, or move to bar Ogryzek’s testimony, fell
below an objective standard of reasonableness.”
However, the court also found that Martin was
not prejudiced by his counsel’s ineffectiveness. The court
concluded that “there was no reasonable probability
that ha[d] an expert such as Busch been called and testi-
fied, the outcome of the trial would have been different.”
The court explained that petitioner “admitted that he
had been at [the tavern] at the time of the murder, that
he had taken money from the cash register . . . that he
put the weapon [in the friend’s garage] . . . and that he
lied to the police.” Thus, the court concluded, “the
sole decision for the jury was to determine whether
petitioner was lying when he testified, or when he con-
fessed in an oral and written statements [sic] to the police,
and to David Tomsha.” The court stated that Martin’s
“credibility was illogical, inconsistent, and impeached
in numerous ways.”
The court also concluded that Busch agreed with
Ogryzek on “several matters.” The court further found:
[M]uch of the basis for Busch’s disagreement is uncon-
vincing. For instance, Busch discounted Ogryzek’s
reliance on the location of the shell casing against the
south wall because casings can roll. However the
photograph of [Turley’s] body show[s] that the floor is
slanted toward the bar, the direction in which the
blood flowed, not toward the south wall.
The court did not refer to any of the other disagreements
between Busch and Ogryzek and did not otherwise explain
16 No. 10-3550
why “much” of the basis for Busch’s disagreement was
unconvincing.
The court of appeals affirmed, focusing only on
the second prong of Strickland. As to prejudice, the
court found that Martin’s guilt or innocence depended
on his credibility. It also found that the “key to the
case was not where the gunman stood. The jury was
called upon to decide if the defendant was honest when
he stated he was not the gunman and that he confessed to
the details of the crime to protect his wife.”
Without opinion, the Supreme Court of Illinois denied
Martin’s petition for leave to appeal. Martin then filed
a habeas petition, which the district court denied.
This appeal followed.
II. ANALYSIS
A district court’s judgment regarding habeas relief
is reviewed de novo. Northern v. Boatwright, 594 F.3d 555,
559 (7th Cir. 2010). The Antiterrorism and Effective
Death Penalty Act (“AEDPA”) sets the parameters for
our review. Under AEDPA, we may grant habeas relief
only if a state-court decision was (1) “contrary to,
or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States” or (2) “based on an unreasonable
determination of the facts in the light of the
evidence presented in the state court proceeding.”
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 386
(2000); Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006).
No. 10-3550 17
In order for a federal court to find a state court’s applica-
tion of federal law unreasonable, the court’s application
must have been more than incorrect; it must have been
objectively unreasonable. Wiggins v. Smith, 539 U.S. 510,
520 (2003).
To establish a claim of ineffective assistance of counsel,
a petitioner must show that counsel was deficient in
his performance and that the deficiency prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687
(1984); Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009).
First, Martin Woolley must demonstrate that his counsel’s
performance fell below an objective standard of reason-
ableness. See Strickland, 466 U.S. at 688. Second, he must
demonstrate that he was prejudiced by the deficient
performance. Id. at 694. On habeas review, a federal court
evaluates “the totality of the evidence—both that ad-
duced at trial, and the evidence adduced in the habeas
proceeding.” Wiggins, 539 U.S. at 536 (citation, emphasis,
and internal quotations omitted).
A. The Performance of Martin’s Counsel Was Ineffec-
tive.
Before discussing the merits, we will consider
the appropriate standard of review for Strickland’s perfor-
mance prong, which the parties contest. The state
trial court first determined that Stockton’s representation
of Martin was ineffective, while the state appellate
court explicitly declined to reach the ineffectiveness
prong of the Strickland test. The State’s highest court
then denied leave to appeal the opinion below. Federal
18 No. 10-3550
courts typically apply de novo review to a Strickland prong
left unaddressed by a state court. See Wiggins, 539 U.S.
at 534.
Even though no prior decision found Martin’s counsel
effective, the State argues that we must nevertheless
apply AEDPA deference in its favor on the performance
prong because the State ultimately prevailed on
Martin’s Strickland claim. Relying on Thompson v.
Battaglia, the State contends that we must treat the
entire Strickland claim as an indivisible constitutional
ground for relief. 458 F.3d 614, 616 (7th Cir. 2006). Because
the Illinois Appellate Court found no Strickland violation
overall, the State maintains that we should apply AEDPA
deference to both prongs of the test and presume that the
appellate court found defense counsel’s representation
adequate even though it remained silent on attorney
performance. This novel approach plainly conflicts with
Wiggins. But the State argues that the Supreme Court
overruled Wiggins in Harrington v. Richter, which held that
Ҥ 2254(d) does not require a state court to give reasons
before its decision can be deemed to have been ‘adjudi-
cated on the merits.’ ” ___ U.S. ___, 131 S. Ct. 770, 785
(2011).
On the other hand, Martin argues that under AEDPA
we must defer to the state trial court’s determination
that defense counsel was ineffective. Martin contends
that since the state trial court considered the ineffective-
ness prong and adjudicated it on the merits in his
favor, AEDPA operates to preserve this presumption
on federal review. He notes that Wiggins applied de
No. 10-3550 19
novo federal review when “neither of the state courts
below reached [the pertinent] prong of the Strickland
analysis.” 539 U.S. at 534 (emphasis added). Since one
of the state courts ruled in his favor on the performance
prong and the other did not address it, Martin believes
we must defer to the state trial court determination on this
measure.
Both parties’ arguments miss the mark. First, Martin
misconstrues the scope of federal review under AEDPA.
When a state collateral review system issues multiple
decisions, we typically consider “the last reasoned opinion
on the claim”—here the opinion of the Illinois Appellate
Court. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991);
see also Gonzales v. Mize, 565 F.3d 373, 379 (7th Cir. 2009)
(“We review the decision of the last state court that sub-
stantively adjudicated each claim.”). Unless a state-
court opinion adopts or incorporates the reasoning of
a prior opinion, “AEDPA generally requires federal courts
to review one state decision.” Barker v. Fleming, 423
F.3d 1085, 1093 (9th Cir. 2005).3 When Martin appealed the
3
See also Barker, 423 F.3d at 1093 (“[T]he Supreme Court
describes AEDPA review as applying to a single state court
decision, not to some amalgamation of multiple state
court decisions. . . . In Williams [v. Taylor, 529 U.S. 362 (2000)],
the Virginia Supreme Court applied a standard that was
contrary to federal law while the trial court applied the
correct standard. The Supreme Court did not aggregate the
two state court decisions or engage in ‘collective review.’
Instead, it reviewed only the Virginia Supreme Court
(continued...)
20 No. 10-3550
state trial court judgment denying collateral relief, the
State reiterated its contention that Stockton’s counsel
had been adequate. The state appellate court declined
to adopt the trial court’s reasoning and instead
remained silent on defense counsel’s performance. This
ruling is the “last reasoned opinion” we review
under AEDPA. Because the Illinois Appellate Court did
not reach Strickland’s ineffectiveness prong, we apply
Wiggins to review the issue de novo.
Next, the State’s theory that Wiggins has been overruled
would stretch Harrington’s holding well beyond the
scope of the decision. Harrington addressed a scenario
where a conviction was upheld by a summary affirmance
of the California Supreme Court. There was no “reasoned
opinion” by any lower court on collateral review. By
its terms, Harrington applies “[w]here a state court’s
decision is unaccompanied by an explanation . . . .” 131 S.
Ct. at 784. The Harrington Court held that such unexplained
determinations may still qualify as adjudications on
the merits for purposes of § 2254(d) and should not be
presumed to be procedural dismissals absent some oppos-
ing indication. But Harrington did not purport to
disturb Wiggins or Ylst. To the contrary, the Court
cited Ylst’s pass-through rule as a reason why a summary
affirmance might not represent a judgment on the merits.
See Harrington, 131 S. Ct. at 785 (citing Ylst, 501 U.S. at 803
3
(...continued)
decision and held that it was contrary to federal law.” (citations
omitted)).
No. 10-3550 21
(“Where there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders uphold-
ing that judgment or rejecting the same claim rest upon
the same ground.”)).
In this case, there is little need for uncertainty regarding
the reasoning of the Illinois courts. The state court
made the grounds for its ruling abundantly clear.
The Illinois Appellate Court explicitly considered Strick-
land’s prejudice prong in isolation, deeming it “unneces-
sary to address any other issues raised by the State regard-
ing the [trial] court’s findings on ineffectiveness.”
The Supreme Court of Illinois then denied leave to appeal
without opinion, presumptively adopting the reasoning
of the state appellate court under Ylst. Under such circum-
stances, Wiggins controls and we review attorney perfor-
mance de novo. It would be perverse, to say the least,
if AEDPA deference required this court to disregard a
state court’s expressed rationale for a decision and pre-
sume instead that Illinois’s courts affirmatively
found defense representation adequate. See Sussman
v. Jenkins, 642 F.3d 532, 534 (7th Cir. 2011) (Ripple, J., in
chambers) (denying motion to stay mandate) (“We cer-
tainly cannot assume that the [Harrington] Court overruled
sub silentio its holding in Wiggins—a precedent so impor-
tant to the daily work of the lower federal courts.”).
Now to the merits. Under Strickland, our review
of defense counsel’s performance is “highly deferential”;
Martin must “overcome the presumption that, under
the circumstances, the challenged action might be consid-
ered sound trial strategy.” Strickland, 466 U.S. at22 No. 10-3550
689 (internal quotation marks omitted). The choice not
to investigate a particular defense does not constitute
deficient performance “if a lawyer has made a reasonable
decision that makes particular investigations unneces-
sary.” Adams v. Bertrand, 453 F.3d 428, 436 (7th Cir. 2006)
(internal quotation marks omitted).
We have little difficulty reaching the same conclusion
as the state trial court on Strickland’s performance prong:
Martin did not receive the effective representation guaran-
teed by the Sixth Amendment. This case does not
present a total failure to provide any meaningful opposi-
tion to the State, though defense counsel made more
than one mistake in representing his client. Martin’s
attorney did engage in substantive cross-examination
of government witnesses. But “even an isolated error of
counsel” can deny a defendant his right to effective
assistance “if that error is sufficiently egregious and
prejudicial.” Murray v. Carrier, 477 U.S. 478, 496 (1986);
see also Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir.
2009) (“a single error may suffice” for a finding of ineffec-
tiveness).
Here, Martin’s attorney remained nearly passive in the
face of damning, impeachable testimony from Ogryzek
that effectively hollowed out the core of his client’s defense
in this capital case. Stockton had advance notice that
the government planned to introduce testimony from
an expert crime scene investigator. Although defense
counsel knew Martin’s testimony would turn on
the location of the final gunshot, he made no effort to retain
a defense expert. More than two months before trial,
No. 10-3550 23
in accordance with pretrial discovery requirements, the
defense disclosed that Martin would testify that he had
been in the bathroom when the shootings occurred.
The following month, the State indicated that it would
reverse its initial conclusion that the gunshots were
fired from across the bar; Ogryzek would testify instead
that the shots came from the area around Phylly’s bath-
room—precisely where Martin now said he had been
located during the shootings. Even though he knew that
the State would directly inculpate Martin’s trial testimony,
Stockton took no steps to secure an expert opinion to
rebut the State’s evidence. On the morning of the trial
itself, the State made an untimely supplement to its
pretrial report: Ogryzek would now testify that it was
physically impossible for Marcia to have fired the final
shot at Baldwin from across the bar as Martin maintained.
Defense counsel made no objection to the state’s request.
Defense counsel’s failure to retain an expert witness, ask
for a continuance, or move to bar Ogryzek’s testimony
due to untimely disclosure fell below the “objective
standard of reasonableness” required by Strickland.
466 U.S. at 688. Even if defense counsel could have initially
believed expert testimony unnecessary, the State’s indica-
tion that it was shifting its position on the location of
the gunshots would have alerted any reasonable attorney
to the need to rebut with a defense expert. Though
we often defer to an attorney’s calculated decision to forgo
a certain trial strategy, it is undisputed that there was
no strategic rationale underlying these errors. Stockton
testified that the idea of securing an expert witness
“never crossed my mind.”
24 No. 10-3550
Further, it was objectively unreasonable for defense
counsel to concede to the late disclosure of Ogryzek’s
new theory that the shots could not have been fired
by Marcia leaning across the bar. This newly disclosed
theory did not simply involve a minor or collateral detail;
it went to the heart of whether Martin’s version of
the shootings was physically possible. We have no doubt
that as a trial approaches, many attorneys feel a
strong incentive to proceed with the case, having prepared
witnesses, evidence, and argument for the scheduled
date. But it was inappropriate here for defense counsel to
simply submit to an untimely disclosure of expert opinion
when it blew a gaping hole in the defendant’s theory of
the case. The Illinois courts have noted that “[t]he goal of
discovery, of course, is to eliminate surprise and unfairness
and afford opportunity to investigate; and sanctions in
aid of that purpose are to compel compliance with discov-
ery orders.” People v. Nelson, 92 Ill. App. 3d 35, 44,
415 N.E.2d 688, 696 (1980). Though attorneys can some-
times respond to certain late disclosures up to the day
of trial, this was not a scenario where Martin’s attorney
could simply wing it as Ogryzek’s planned testimony
became increasingly damaging. See Stanley v. Bartley,
465 F.3d 810, 812 (7th Cir. 2006).
This does not mean that defendants enjoy an automatic
entitlement to expert rebuttal witnesses whenever
the government offers expert testimony in a trial.
See United States v. Anderson, 61 F.3d 1290, 1298-99 (7th
Cir. 1995). Particularly when the State’s theory would
be very difficult to controvert with a defense expert, it
may be reasonable to rely on cross-examination to
No. 10-3550 25
cast general doubt on the government’s version of events.
See Harrington, 131 S. Ct. 770 at 791.
But here, unlike in Harrington, the State made clear
from the start that it would present forensic evidence
on the shooter’s location at the crime scene. And there
were significant holes in Ogryzek’s conclusions
that required expert illustration by the defense in order
for the jury to weigh the evidence fairly. Cf. Showers v.
Beard, 635 F.3d 625, 630 (3d Cir. 2011) (distinguishing
Harrington). Ogryzek testified that Martin’s account
was impossible because the final shot could not have
been fired from over the bar. But Busch’s expert analysis
later showed that it was demonstrably possible for
Marcia to have fired the final shot. At trial, defense counsel
vainly sought to extract concessions from Ogryzek through
cross-examination that Baldwin’s head may have
moved such that the source of the final gunshot would be
consistent with Martin’s account. Ogryzek repeatedly
denied any alternative explanations. Busch’s post-convic-
tion testimony demonstrates that these alternatives
were indeed feasible and, in Busch’s view, more consistent
with the evidence at the crime scene. Without a countering
defense witness, Ogryzek’s denials in the face of cross-
examination only reconfirmed the one-sidedness of
the expert opinion before the jury.
We take pains not to rely on the “harsh light of hind-
sight” in judging counsel’s performance in a particular
case. Bell v. Cone, 535 U.S. 685, 702 (2002). The “failure
to investigate a particular lead may be excused if a lawyer
has made a ‘reasonable decision that makes particular
26 No. 10-3550
investigations unnecessary.’ ” Washington v. Smith,
219 F.3d 620, 631 (7th Cir. 2000) (quoting Strickland, 466
U.S. at 691). But we can perceive no strategic reason why
the importance of expert testimony would not have
been apparent at the time of trial. See Earls v. McCaughtry,
379 F.3d 489, 494 (7th Cir. 2004). Indeed, defense counsel
admitted that his failure to obtain an expert was
an oversight. Though an inadvertent omission will
not always result in constitutionally deficient performance,
the failure to conduct a reasonable investigation
may. Harris v. Cotton, 365 F.3d 552, 555-56 (7th Cir.
2004). Here, defense counsel could not adequately repre-
sent his client simply by cross-examining the State’s
expert. See Miller v. Anderson, 255 F.3d 455, 457 (7th Cir.
2001) (“[C]ross-examination alone could weaken the
prosecution’s expert evidence, but not to the point of
denying it the essential corroborative value for which
the prosecutor was using it.”), judgment modified, 268 F.3d
485 (7th Cir. 2001); cf. Stevens v. McBride, 489 F.3d 883, 896
(7th Cir. 2007) (finding ineffectiveness due to failure
to investigate expert “[w]here an expert witness’s
opinion is crucial to the defense theory” (internal quota-
tion marks and citation omitted)).
In an effort to rebut Ogryzek’s testimony, defense
counsel showed the jury during closing arguments an
impromptu diagram he had scrawled on a legal pad. But
this was not a case where such ad hoc efforts could ade-
quately discharge counsel’s duty to the defendant
under the Sixth Amendment. Counsel’s failures were
particularly glaring because this was a capital case.
ABA Standard 4-1.2(c) states that “[s]ince the death penalty
No. 10-3550 27
differs from other criminal penalties in its finality, defense
counsel in a capital case should respond to this difference
by making extraordinary efforts on behalf of the accused.”
ABA Standards for Criminal Justice Prosecution Function
and Defense Function 120 (3d ed. 1993).
B. The State Court Reasonably Determined that
Martin Suffered No Prejudice From Defense Coun-
sel’s Errors.
Though it declined to reach the performance prong,
the state court affirmatively held that Martin had not
established prejudice under Strickland. Therefore, we
must evaluate this prong under AEDPA’s deferential
standard. See Harrington, 131 S. Ct. at 787-88. Under
AEDPA, we “allow[] the state court’s conclusion to
stand if it is one of several equally plausible outcomes.”
Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997).
Strickland requires Martin to demonstrate “a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”
466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.As a preliminary matter, we agree with Martin
that Ogryzek’s opinion was highly damaging. Of the
witnesses introduced during the State’s case-in-chief,
prosecutors spent the greatest amount of time examining
Ogryzek. Ogryzek testified at trial that Martin’s account
was physically “impossible,” a refrain that the
State repeated in closing arguments.
28 No. 10-3550
This unrebutted expert opinion was unjustly inculpatory
because it resulted from ineffectiveness. Busch’s analysis
suggests possible critical flaws in Ogryzek’s opinion
that were left untested at trial. First, it was demonstrably
possible for the final shot to have been fired at Baldwin
from over the bar. Second, the bullet found in the bar’s
east door powerfully refutes Ogryzek’s theory that the
shots originated from the bar’s south wall. If the
shooter had been to the south of the victims and
firing north, one of the bullets would have had to
turn sharply to the right in order to end up in the east
door. In addition, Turley’s gunshot wound had stippling
which is consistent with a close-range shot from the
area around the barstools. And the absence of stippling
on Baldwin’s body supports a final shot from across the bar
rather than from a person standing over the body.4
Beyond physical evidence, the circumstances of the
State’s changed opinion are frankly suspicious. Investiga-
tors originally determined that the shots came from the
area of the bar stools, consistent with Martin’s initial
confession. When defense counsel disclosed Martin’s
planned defense—that he was in the bathroom at the
time of the murders—the State changed its theory to
follow him to this part of the bar. In light of the convenient
timing and contradictory physical evidence, Ogryzek’s
opinion seems tailored to eliminate Martin’s proposed
4
The only evidence supporting Ogryzek’s version is the fact
that the gunshot casings were found near the bar’s south wall.
But this evidence has weak probative value because Ogryzek
and Busch both agreed that casings ejected from a firearm do not
travel in a predictable manner.
No. 10-3550 29
alibi, rather than deriving from an objective analysis of
the crime scene. Due to ineffectiveness of counsel, Martin
did not have an adequate opportunity to impeach Ogryzek
in this regard.
In many cases, this would be sufficient to support
a finding of prejudice under Strickland. But we cannot
view even a serious error in isolation. The materiality
of omitted evidence helpful to a defendant “must be
evaluated in the context of the entire record.” United
States v. Agurs, 427 U.S. 97, 112 (1976); see also Strickland,
466 U.S. at 694 (citing Agurs). Looking at the context of
the full record here, we observe that there were multiple,
independent sources of evidence inculpating Martin
that have nothing to do with Ogryzek’s damaging testi-
mony.
Martin contends that his counsel’s ineffectiveness
prejudiced him because a defense expert would
have corroborated his trial testimony that he was not
the shooter. This argument misapprehends the character
of the expert evidence. A crime scene investigator testify-
ing for the defense could only have helped establish
the location of the shooter, not his or her identity. Because
Marcia invoked her right not to testify and there were no
other witnesses, either spouse could have been in any part
of the bar during the murders.5 And if he were guilty,
5
Busch testified that Turley’s gunshot wound was at an
upward angle, indicating that she was likely shot from a
position beneath her head. Martin contends that this demon-
strates Marcia was the shooter since, at 5 foot, 3 inches, she was
(continued...)
30 No. 10-3550
Martin would have had an obvious motive to put his wife
in precisely the same location he was in when the
gunshots were fired. The Illinois Appellate Court correctly
recognized this fact and concluded, “[t]he key to the
case was not where the gunman stood.”
Woolley’s initial problem is that the state court found
(1) the proposed expert testimony that is the basis for his
collateral attack “unconvincing”; and (2) the possibility
of a “so called ‘battle of the experts’ ” to have had no
reasonable probability of changing the outcome of the trial
given that “petitioner’s credibility was illogical, inconsis-
tent, and impeached in numerous ways,” including
by “the testimony of at least eight other witnesses.”
State court findings, including credibility determinations,
are presumed correct on federal habeas review, unless
the petitioner rebuts those findings with “clear and
convincing evidence.” 28 U.S.C. § 2254(e)(1). Deference
is due to “observe the verbal and non-verbal behavior of
5
(...continued)
shorter than Turley and would have fired upward at her head.
At over 6 feet, Martin was taller than both women. This evidence
does indeed assist the defense by undercutting Ogryzek’s theory
that Martin fired at Turley while standing from a distance. But
the bullet trajectory cannot prove quite as much as Martin
desires. First, there is no way to know whether the shooter fired
from a seated or standing position. In his initial confession to
police, Martin said he shot Turley while he was sitting, which
would likely be consistent with the upward angle. Furthermore,
Martin’s attorney was conscious of this discrepancy and
highlighted it to the jury in closing arguments.
No. 10-3550 31
the witnesses focusing on the subject’s reactions and
responses to the interrogatories, their facial expressions,
attitudes, tone of voice, eye contact, posture and
body movements, as well as confused or nervous speech
patterns in contrast with merely looking at the cold
pages of an appellate record.” Murrell v. Frank, 332 F.3d
1102, 1112 (7th Cir. 2003) (citation, emphasis, and internal
quotation marks omitted). Since the Supreme Court has
discouraged federal courts from relitigating cases on
habeas review, Woolley’s prejudice claim—based on
his counsel’s failure to present expert testimony found
unconvincing by the state court—appears barred from
federal review, especially when it would require that
this court second guess the judge’s weighing of evidence
and credibility determinations of both side’s experts and
the other witnesses, particularly the defendant.
Assuming this court were free to consider proposed
testimony from a defense expert credible and due
equal weight, the question of prejudice may be a closer
one, but the outcome is no different. Certainly, Ogryzek’s
unrebutted opinion was damaging because it suggested
that Martin must be lying when he said the final shot
came from over the bar. A defense expert would
have assisted Martin by impeaching Ogryzek and poten-
tially neutralizing his damaging testimony. But the omitted
evidence is not exculpatory in the manner Martin
wishes it were. It would only have leveled the playing field
by making Martin’s account of the murders possible
rather than “impossible.” Jurors would have had to find
Martin credible independent of any expert testimony.
32 No. 10-3550
But viewing this trial record as a whole, we find numer-
ous reasons to question Martin’s credibility.6 First,
a disinterested witness contradicted Martin’s testimony
that the murder weapon was not on his person. It
is undisputed that Martin’s gun was used to kill the
victims. But Martin said he had moved the gun from the
small of his back to his coat pocket when he left the bar
between 4:00 and 5:00 p.m. to feed Marcia’s children at
home. Later that night, according to Martin, Marcia
took the weapon from the pocket after he left his coat on
the bar stool to go to the bathroom. The timing of
this account conflicts with Deborah Brose’s testimony.
Brose said she saw the imprint of the gun in the back of
Martin’s pants while the two played pool and Martin
leaned over the table. The pool game occurred between
8:00 and 8:30 p.m., a little over an hour before the murders.
Perhaps Brose was mistaken, but she mentioned this fact
to police unprompted when questioned the following
afternoon. And what reason would Brose have had
to testify falsely? Potentially Martin could have moved the
6
The Illinois Appellate Court focused on the fact that Martin
had confessed then recanted, which permitted the jury to believe
either his trial testimony or the prior admission. Of course it
is true that jurors were free to credit the initial confession over
the later recantation. But this is not the strongest basis for a
finding of no prejudice since a false confession would have been
consistent with the defense theory that Martin acted to protect
his wife. And contrary to the State’s intimations, there is no rule
barring a finding of Strickland prejudice where a defendant has
recanted a confession. See Soffar v. Dretke, 368 F.3d 441, 478 (5th
Cir. 2004); Baylor v. Estelle, 94 F.3d 1321, 1324–25 (9th Cir. 1996).
No. 10-3550 33
gun to his coat pocket after Brose left the bar. But then
why would Martin have lied about when he did it? Martin
offers no explanation for these inconsistencies.
Brose was not the only disinterested witness
Martin contradicted. The State offered evidence of Martin’s
m o t iv e f r o m v io le n t , in c u l p a t o r y s t a t e m e n t s
Martin allegedly made. Peter Dolieslager, Jeff Ince, and
David Aldred testified of separate occasions on which
Martin told them he could gun down patrons in
public restaurants without compunction, that police in
Kewanee were an incompetent “circus,” and that it would
be easy for a person to commit a crime if he killed all of
the witnesses. Additionally, Aldred said that two months
before the murders Martin told him of financial problems
he was having and money he needed to pay off large tax
debts on his tattoo shop. These statements do not prove
that Martin committed the murders, though they are
obviously damaging. Martin might have argued that
he was blowing off very badly timed steam. But he did not
take this tack at trial. He testified instead that he
never made any of the statements and that all three were
lying. Martin has offered no explanation as to why these
three apparently disinterested witnesses, including a self-
described friend of the defendant, would combine to frame
him.
Tomsha provided the most directly incriminating
evidence. He said Martin made an additional, sincere
confession to him while the two were in pretrial detention.
Martin contends that this testimony cannot be
trusted because it comes from a jailhouse informant.
34 No. 10-3550
Tomsha was indeed an interested witness, having received
a light sentence on pending burglary charges after cooper-
ating with the State. But Martin ignores the key corroborat-
ing element in Tomsha’s account. According to
Tomsha, Martin said that before he killed the victims, he
asked Baldwin to turn the television volume to its
highest level. The purpose? To mask the sound of Martin’s
impending gunshots. Dolieslager was the first person
at the scene of the crime and said he immediately noticed
the television playing at “full blast.” This evidence inde-
pendently supports Tomsha’s testimony even if it might
otherwise be suspect. Conceivably, Tomsha could have
learned of this crime scene detail from another source and
fabricated his story. But Martin has never accounted for the
television volume witnessed by Dolieslager. He has
never argued, for instance, that Marcia asked for the
volume to be raised.
Tomsha also provided written copies of confessions
(and amendments to the confessions) purportedly made by
Martin. When Martin testified, he denied communicating
with Tomsha about the murders or composing the docu-
ments. He claimed that Tomsha must have forged
the confessions from the case files Martin kept in his cell.
These confession “drafts” are certainly unusual and
potentially suspect coming from a jailhouse informant.
But here again there is independent evidence corroborating
M a rt in ’s a ut horship. Th e St at e’s h an d w r it in g
expert testified that Martin’s signature matched each of
No. 10-3550 35
the documents.7 Martin has never proposed or offered
a potential defense expert to rebut the FBI agent’s conclu-
sions regarding his handwriting.
Furthermore, a spelling mistake in the written confes-
sions supports Tomsha’s testimony. Martin prepared
a letter for his lawyer to release to the press claiming
that Marcia had committed the murders while he was in
the bathroom. The press release contained an error: Martin
had misspelled Baldwin’s first name as “Renee”
rather than “Rane.” The documents Tomsha delivered to
police contained detailed information about the
crime scene likely obtained only from either personal
observation or from police reports. And each of the con-
tested confessions also contained the same spelling error as
Martin’s press release, even though the police records
used the correct spelling of Baldwin’s name. Finally,
Tomsha delivered the documents to authorities before
Martin’s press release was dated or published. If Tomsha
had forged these confessions using the police reports, how
would he have known to mirror the spelling Martin would
use in the later press release?
7
The expert could not definitively conclude whether Martin
authored the body of the documents. But even this fact does
little to help Martin under the circumstances. The expert
testified that Martin intentionally refused to provide a natural
handwriting exemplar. A jury could reasonably infer from this
testimony alone that Martin sought to defeat the expert’s
handwriting identification because he knew it would inculpate
him. Again, Martin has proposed no defense on this point.
36 No. 10-3550
The ineffectiveness of Martin’s defense counsel resulted
in a significant trial error. But it is difficult to conceive of
a defense that would have overcome the State’s remaining
evidence. Martin has proposed none. Instead, he
relies entirely on the potential effect of Busch’s testimony.
As explained above, the omitted defense theory
cannot carry the burden Martin desires. If the State
had withdrawn Ogryzek’s testimony completely and
stipulated to Busch’s account of the crime scene, a
jury would still have had to contend with the overwhelm-
ing remainder of the State’s evidence. Under such circum-
stances, we cannot conclude that the state appellate
court acted irrationally in finding “no reasonable probabil-
ity that the omitted evidence would have changed
the” outcome. Strickland, 466 U.S. at 700; see also id. at
696 (“[A] verdict or conclusion only weakly supported
by the record is more likely to have been affected by errors
than one with overwhelming record support.”).
We observe that even defendants with weak cases
deserve vigorous, effective assistance of counsel. The
error in this case is troubling. It highlights the
difficulty of evaluating inadequate performance when
a defendant’s case is tenuous. Cf. Strickland, 466 U.S.
at 710–11 (Marshall, J., dissenting) (“Seemingly impregna-
ble cases can sometimes be dismantled by good defense
counsel. . . . A proceeding in which the defendant does not
receive meaningful assistance in meeting the forces of the
State does not, in my opinion, constitute due process.”).
Nevertheless, a writ of habeas corpus is not a remedy
the federal courts have authority to provide in circum-
stances such as these. See Knowles v. Mirzayance, 556
No. 10-3550 37
U.S. 111, 123 (2009) (“The question ‘is not whether a federal
court believes the state court’s determination’ under
Strickland ‘was incorrect but whether [it] was unreason-
able—a substantially higher threshold.’ ”) (quoting Schiro
v. Landrigan, 550 U.S. 465, 473 (2007)).
III. CONCLUSION
The determination that Martin Woolley was not preju-
diced by his counsel’s performance at trial was not
an unreasonable application of Strickland. We therefore
A FFIRM the district court’s judgment.
12-14-12