Michael Gilbreath v. Dan Winkleski

In the
United States Court of Appeals
For the Seventh Circuit
No. 20-2638
MICHAEL GILBREATH,
Petitioner-Appellee,
v.
DAN WINKLESKI, Warden,
Respondent-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:19-cv-00728-jdp — James D. Peterson, Chief Judge.
ARGUED APRIL 15, 2021 — DECIDED DECEMBER 30, 2021
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
ROVNER, Circuit Judge. Michael Gilbreath was convicted by
a Wisconsin jury of first degree sexual assault of a child for
repeatedly molesting his step-granddaughter, S.L., beginning
in approximately 2002 or 2003 when she was nine years old,
and ending in 2006 when she was twelve. The district court
2 No. 20-2638
granted his petition for a writ of habeas corpus on the basis of
ineffective assistance of counsel. We reverse.
I.
We presume that the factual findings of the state court are
correct for the purposes of habeas review unless the petitioner
rebuts the presumption of correctness by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Gilbreath has not provided
clear and convincing evidence rebutting the state court
findings and so we defer to the state court’s version of events.
Goodloe v. Brannon, 4 F.4th 445, 447 (7th Cir. 2021); Weaver v.
Nicholson, 892 F.3d 878, 886 (7th Cir. 2018). We will supplement
the state court’s recitation of the facts with undisputed facts
that provide background.
A.
From infancy, S.L. was raised by her grandmother, Patricia
Gilbreath, and Patricia’s husband, Michael Gilbreath, the
petitioner here.1 In addition to S.L., Gilbreath and Patricia had
two children of their own, Haiden, who is the same age as S.L.;
and Aaron, who is four years older than S.L. They also raised
S.L.’s half-brother, Giovanni, who is two years younger than
S.L., from the age of five. Although Gilbreath and Patricia were
her grandparents, S.L. referred to them as her parents. This
family of six lived in a small house that had two bedrooms at
the time that the assaults began. When S.L. was nine, she
shared a bedroom with all of the children in the home. She and
Haiden slept together on a futon, where they arranged them-
1
For clarity, we will refer to the petitioner as Gilbreath and will refer to
other family members by their first names.
No. 20-2638 3
selves so that S.L.’s head was even with Haiden’s feet.
Giovanni and Aaron slept in a bunk bed directly above the
girls for a year or two of the relevant time period, but later
moved to the second bedroom after a third bedroom was
created by a garage conversion. Patricia slept on a couch in the
living room, and had a direct view into the girls’ bedroom,
which was just steps away.
During the relevant time period, Gilbreath would regularly
come home drunk in the early morning hours and sometimes
go into the children’s room. Gilbreath’s nighttime visits ended
in 2006 when he was convicted of driving under the influence
and was sentenced to a term of imprisonment. In 2008, shortly
before Gilbreath was due to be released from prison, S.L., then
fourteen years old and in eighth grade, disclosed for the first
time that Gilbreath had sexually assaulted her during these
nighttime visits. S.L. first told a friend and then told a school
guidance counselor at that friend’s urging. That first disclosure
led to an investigation by social services and law enforcement.
Social worker Kelly Oleson interviewed S.L., accompanied
by Deputy Cheryl Thompson. Oleson and Thompson both
generated reports of the interview.2 Oleson wrote that S.L. told
her that Gilbreath would come into her room at 2:00 or 3:00
a.m. after a night of drinking, that he would get into the bed
and rub her stomach, and touch and rub her breast and vaginal
2
When we describe the reports of social services and law enforcement as
undisputed, we mean only that there is no dispute as to what the reports
say. We do not mean to imply that Gilbreath does not dispute the truth of
some of the statements that social services and law enforcement recorded
in those reports.
4 No. 20-2638
areas (which she indicated by gesturing). S.L. reported that this
had happened five or six times, and that the touching occurred
over her clothing. She also said that Gilbreath “used to do it
when she was younger.” S.L. said that Haiden was generally
asleep while this was happening but that Haiden had told her
that this had happened to her once too. Gilbreath would also
sometimes kiss both girls on the lips. S.L. would often pretend
to be asleep when these things were happening. At the end of
each incident, Gilbreath would leave the room and go to his
own bedroom. S.L. blushed and became embarrassed when she
told Oleson that she had not told Gilbreath to stop. She told
Oleson that Gilbreath once apologized for what he had done to
her the previous night, and that he was a different person
when he was drinking. She said that she had not told Patricia
about what had happened, that she feared her parents would
get divorced if Patricia found out, and that she did not want
Gilbreath to go to jail or have to participate in programs
because this had happened. S.L. did not think Gilbreath would
do this again unless he began drinking again. When asked if
anyone else knew what had happened, S.L. reported that she
once told Aaron and that he had replied that she should tell
him if it happened again and he would do something about it.
She had also told the friend who encouraged her to go to the
guidance counselor, Aaron’s best friend Dustin, and her cousin
Kayla. Deputy Thompson’s report largely tracked that of
Oleson in all of the relevant details, including a note that S.L.
didn’t want “anything big” to happen to Gilbreath such as
additional jail time, that she just wanted him to not do this
again. After concluding the interview with S.L., Oleson
interviewed Haiden. According to Oleson’s report of that
No. 20-2638 5
interview, Haiden reported that Gilbreath had kissed her “like
a boyfriend.” As a result of the 2008 investigation, Patricia was
asked to put a lock on the door of the girls’ bedroom and to
keep Gilbreath away from S.L.
In 2010, S.L., then sixteen years of age, again raised
allegations of the pre-2008 abuse with a school counselor, and
she was again interviewed by social services and law
enforcement. Oleson conducted the social services interview
for this second disclosure, accompanied this time by
Investigator Mark Bitsky of the county sheriff’s office.
According to Oleson’s report, S.L. said she was getting into
trouble with her parents, and that Gilbreath was calling her
abusive and degrading names and threatening to hit her. He
compared her unfavorably to her biological mother (Patricia’s
daughter) and threatened to punch her in the face. She had a
boyfriend named Robert whom Gilbreath did not like.
Although Gilbreath would not allow her to date, she was
sometimes allowed to visit Robert at his home. S.L. told Oleson
that she often hid out in her bedroom because of Gilbreath’s
poor treatment of her. S.L. reported that Gilbreath used very
vulgar and inappropriate language with her and sometimes
with Haiden regarding his sex life and his past sexual
encounters; he also told S.L. that he no longer had sex with
Patricia. Oleson’s report described Gilbreath’s remarks to S.L.
as “graphic and inappropriate for a parent to be having with
their child.” R. 7-4, at 2. S.L. was concerned that Gilbreath
might have started drinking again. She was also concerned
because he had begun to come into her bedroom again at night,
and she feared he would act as he had before going to prison
in 2006. Oleson noted that S.L. had engaged in self-harm by
6 No. 20-2638
cutting her skin and also by burning her skin with chemicals.
S.L. reported that Gilbreath was angry about the cutting
behavior. Her boyfriend, Robert, also engaged in cutting, and
her parents blamed Robert for S.L.’s self-harm.
S.L.’s second disclosure, like her first, addressed conduct
that occurred when she was between nine and twelve years of
age. She denied that Gilbreath committed any new offenses
after his 2008 release from prison. But during the second
disclosure, Oleson reported that S.L. described more frequent
instances of abuse in the original time period of 2002 or 2003 to
2006. For example, she described certain abuse as occurring
more times than she could count, and then estimated that it
occurred twenty times. S.L. also gave graphic accounts of
particular incidents, telling Oleson that Gilbreath had regularly
touched her genital area beneath her clothing (hereafter “the
nighttime abuse”), including a specific incident that occurred
in his bedroom; that he had caused her to touch his genitals
directly (hereafter “the masturbation incident”); and that he
had engaged in other abuse that occurred while he was bathing
her at a young age (hereafter “the bathtub incident”). These
allegations were more detailed than those that she had made
two years earlier, at the age of fourteen. Oleson characterized
the second disclosure as “more descriptive” than the interview
in 2008, but noted that “many [sic] of the surrounding detailed
information was identical.” R. 7-4, at 4. S.L. told Oleson and
Bitsky that she did not want them to talk to Gilbreath or
Patricia because she feared her mother would be angry with
her. She reported that the entire family was angry with her
after her 2008 disclosure. Oleson also interviewed Haiden
again who this time told Oleson that she was “the lucky one.”
No. 20-2638 7
Oleson halted Haiden’s interview when she became very
upset.
Bitsky requested that Oleson arrange a forensic interview
at Safe Harbor, a child advocacy center in Madison, Wisconsin.
The Safe Harbor interview, which was recorded and
transcribed, largely tracked the second interview with Oleson,
but in greater detail. Because the second interview with Oleson
was largely consistent with the forensic interview, we will refer
to these jointly as the second disclosure. According to Bitsky’s
report of the forensic interview, S.L. described certain
recurring nighttime abuse as taking place two to three times a
week, but she had difficulty “singling out each event.” R. 7-7,
at 2. In describing the regular incidents of nighttime abuse, S.L.
reported that Gilbreath would remove her bottom clothing and
directly touch her genitals. She also described three particular
incidents that differed from the usual nighttime abuse. In
addition to an incident of nighttime abuse that occurred in
Gilbreath’s bedroom rather than her own, she described two
incidents of particular conduct that were different from the
regularly occurring abuse. The first incident, the bathtub
incident, involved Gilbreath getting into the bathtub with her
while they were both naked, and having him place her, in a
seated position, on top of his penis. She did not recall anything
more specific from that incident. She believed this was the
beginning of the abuse, and said that she was very young
when it happened, too young to bathe herself. She also
described the masturbation incident in detail, but could not
recall how the masturbation incident ended. She believed it
was the last incident of abuse prior to Gilbreath’s arrest for
drunk driving in 2006. S.L. repeated to the forensic interviewer
8 No. 20-2638
that Gilbreath called her vulgar names, that he had not abused
her since being released from prison, that Gilbreath had
inappropriate and graphic conversations with her about his sex
life, that she believed he had abused Haiden on one occasion,
and that Gilbreath had twice apologized to her for the abuse,
once before he went to prison and once after he came home
from prison.
The record does not reveal why S.L.’s first disclosure did
not lead to criminal charges against Gilbreath, but the second
disclosure resulted in Gilbreath being charged with first degree
sexual assault of a child. After S.L. made the second disclosure
to Oleson and Bitsky and before the forensic interview,
Gilbreath was arrested3 and Patricia placed S.L. in foster care.
B.
With this background in place, we turn to the evidence
produced at trial. The State’s primary witness at Gilbreath’s
three-day jury trial was S.L., who was then twenty years old,
married and the mother of a child. The State also presented
testimony from Ann McKinley (an expert on child sexual
abuse), Patricia and Haiden. Gilbreath testified on his own
behalf and was the only witness presented in the defense case.
At trial, S.L. testified that, when she was a child, Gilbreath
came into her room drunk late at night and touched her breast
and genital areas under and over her clothing. Consistent with
her second disclosure, she said that it happened many times
3
It appears that Gilbreath was taken into custody on a probation violation
involving the use of alcohol. He was later charged with abuse of S.L., but
faced consequences for the probation violation in the interim.
No. 20-2638 9
but could not give a definitive number. She also testified
regarding three specific incidents, namely, the instance of
nighttime abuse that occurred in Gilbreath’s room, the
masturbation incident and the bathtub incident consistent with
the second disclosure. She said that, during the time period
when the abuse was occurring, she told her cousin Kayla, and
Aaron what was happening. In the case of Kayla, she tried to
spell the word “molest” on a piece of paper, and Kayla replied
that it was “gross,” that she would not go near Gilbreath again.
She testified that when she told Aaron that Gilbreath was
touching her inappropriately, he replied that if it happened
again, she should tell him and he would do something about
it. She also described telling the friend who encouraged her to
report it, and the guidance counselor whom she told as a
result. She testified that she did not go into detail about the
abuse during the first disclosure because she was
uncomfortable and did not understand some of terms. She
described Gilbreath’s verbal abuse after he returned from
prison, and testified that when she was 15 or 16, Gilbreath cut
up her temporary driver’s license. She denied delinquent
behavior or being suspended at school. She admitted that she
cut and burned herself during that time period, explaining that
she did so in part to make herself unattractive to Gilbreath.
Asked what caused her to disclose the abuse for a second
time in 2010, she replied that she “was scared [of] what was
going to happen,” that “everything started kind of going south
where, you know, my license got tore up, and I was getting
yelled at all of the time.” R. 6-10, at 137. She implied that she
was getting bad grades at that time and said that she was
getting yelled at for things she had not done. After the second
10 No. 20-2638
disclosure, Patricia was angry with her and accused her of
lying, and Haiden would not speak to her. Shortly after the
second disclosure, social services removed her from the home
and she was placed in foster care. Asked if she had ever made
a written account of what happened to her, S.L. testified that
she wrote a letter to her counselor, who thought that the
writing exercise might help her cope with what had happened.
On cross-examination, defense counsel established that S.L.
saw Gilbreath as the disciplinarian in the home, that he was the
one to ground the children or take away privileges. S.L. also
agreed that Gilbreath had “more to say” about the girls’
relationships with boys. Counsel then turned his attention to
the letter that S.L. said she had written to her counselor. In
response to defense counsel’s questions, S.L. confirmed that
she wrote the letter on her own in response to her counselor
telling her to write down everything she remembered; that she
typed it on a computer, chose the font and formatting, and
printed it out; and that she wrote it when she was still in high
school. Defense counsel then asked:
And when you were doing that, were you trying to
write out as best you could what you remembered
happening so that you could address that with your
counselor, correct?
R. 6-10, at 156. S.L. replied, “Correct.” In response to
questioning, she indicated that she wrote the letter in
approximately an hour. Her foster mother later provided it to
the prosecution.
After going through the layout of the small house and
having S.L. identify various locations, defense counsel then
No. 20-2638 11
brought forth a number of letters and asked S.L. if she had
written the letters to Gilbreath while he was in prison. After
saying that she did not recognize any of the letters, she
eventually conceded that, although she did not remember
writing any of the letters, she may have forgotten and so could
not say for certain that she did not write a particular letter.4
Counsel then attempted to impeach S.L. with Oleson’s initial
report from the first disclosure. Counsel pointed out that S.L.
reported to Oleson that the touching occurred over her
clothing and that it had happened five or six times. S.L.
testified that she did not remember being asked about the
number of times the incidents occurred, and also did not
remember being asked for details at that first interview. Nor
did she recall saying that the incidents occurred five or six
times, or that the touching occurred only over her clothing.
Counsel then attempted to further impeach her with a
statement she had made under oath at a preliminary hearing
two years before the trial. At the preliminary hearing, she was
also asked about whether she had told Oleson at the initial
disclosure that Gilbreath touched her only over her clothing.
At the preliminary hearing, S.L. denied telling Oleson that the
touching occurred only over her clothing. At the trial, she
confirmed that this would still be her answer, despite what
4
Defense counsel attempted to establish that S.L. sent Gilbreath letters
when he was in prison where she expressed a strong desire to have him
home again. He argued that the letters demonstrated that S.L. did not fear
Gilbreath’s return from prison, as she claimed. The prosecution sought to
show that the letters were forgeries. Although there is no way to know what
the jury made of the letters, the trial court determined during sentencing
proceedings that the letters were forged. R. 6-16, at 31.
12 No. 20-2638
was written in Oleson’s report. In response to the direct
question, “So if [the interviewers] wrote that, they were
mistaken?”, S.L. replied, “Yes.” R. 6-11, at 186–87.5
Counsel then returned to the letter S.L. wrote to her
counselor, and on this subject, he had even more success, so
much so that he was later stunned by the jury’s verdict. We
will describe this impeachment in detail because it was critical
to counsel’s decisions at trial. S.L. first confirmed that she had
not seen the letter for years. Counsel then pointed out that the
letter said that Gilbreath would barge into her room between
midnight and three in the morning with no clothes on
(contrary to her trial testimony that he would enter the room
wearing a robe and underwear). S.L. did not remember writing
that he came in naked, she denied that it had ever happened
that way, and she confirmed that she recalled him wearing a
robe.
Counsel than brought up a number of statements in the
letter to the counselor that S.L. confirmed were not true and
denied writing in the letter that she had just admitted writing.
5
Defense counsel’s attempt to impeach S.L. was somewhat confusing until
he handed her a transcript of her prior testimony. Until that point, neither
S.L. nor the presiding judge understood what he was asking. The confusion
cleared once the transcript was provided. S.L. then gave the answer that
defense counsel sought, namely that she disagreed with Oleson’s report.
She denied that she had said at the initial disclosure interview that the
touching incidents all occurred over her clothing. She said that Oleson was
mistaken if that was what she wrote. That meant that, although her trial
testimony was consistent with her testimony at the preliminary hearing, it
conflicted with the contemporaneous report generated by Oleson, a
disinterested third party who interviewed her close in time to the incidents.
No. 20-2638 13
For example, the letter stated that, during the masturbation
incident, Gilbreath ejaculated on her bed. She did not
remember writing that to the counselor, and confirmed that
she did not recall how the masturbation incident ended. She
also did not remember writing more details regarding the
bathtub incident, and agreed that the bathtub incident did not
happen the way it was described in the letter to her counselor.
She confirmed that she remembered nothing about the bathtub
incident other than Gilbreath sitting her on his lap in the tub
when they were both naked. She also denied writing that she
said nothing to Gilbreath while this was happening because he
would beat her, testifying that she had not written this and that
it was untrue. She denied writing that the abuse went on every
night for four to five years, and also denied that the abuse went
on for that long, explaining that Gilbreath was in prison for
some part of that time period. She insisted that she would not
have put something in the letter that was not true. Asked how
all of this incorrect content got into the letter, she said she did
not know, that she gave the letter to her foster mother and did
not know what happened to it after that. She also said that her
foster mother would not have altered the letter.
She denied writing that, after her secret was out (after the
first disclosure), she became a “wild child” for two years,
doing what she wanted and that no one could tell her what to
do. She denied writing that she was cutting and burning
herself, but agreed that it was true that she was cutting and
burning herself in that time period. She denied writing other,
less material statements in the letter, some of which she agreed
were true and some of which she testified were not true.
Defense counsel asked if she lied to her counselor in these
14 No. 20-2638
statements, and she replied, “I did not lie to my counselor.” R.
6-11, at 202. She also denied typing most of the letter that she
had just testified that she typed, saying, “No. Most of the stuff
in here, I did not type, because it’s not true.” R. 6-11, at 202.
There is no dispute that the letter to the counselor contained all
of the statements that S.L. first affirmed that she wrote and
then moments later denied that she wrote. And there is no
dispute that this version of events was a significant departure
from the versions she reported at the first and second
disclosures.
Counsel concluded his cross-examination of S.L. with
questions about whether she reported at the second disclosure
having “tension and disputes” with Gilbreath. S.L. did not
recall saying those things to the interviewers at the second
disclosure. Nor did she recall telling the interviewers that
Gilbreath and Patricia did not like her boyfriend Robert and
tried to cut her off from him. She also did not remember saying
at the second disclosure that Gilbreath was yelling at her
almost every day. She did remember Gilbreath tearing up her
driving permit, and admitted she was angry because she had
paid for driver’s education and the permit by herself with
money she earned from work, and because it delayed her
ability to drive. She agreed that she was “pretty unhappy,
angry even,” when Gilbreath did this. She could not recall
when this occurred in relation to the second disclosure.
The prosecutor attempted to rehabilitate S.L. on re-direct,
trying to recast the letter to the counselor as representing
emotional truth rather than factual truth. S.L. eventually
agreed that the letter was meant to express emotional truth.
She explained that she had significant mental health issues
No. 20-2638 15
after she was removed from the Gilbreath home following the
second disclosure, suffering from depression to the point of
suicidal thoughts. It was during that time frame that she was
in counseling and would have written this letter, and agreed
that her memory of writing parts of the letter could have been
impaired by the emotional distress she was suffering at that
time. On re-direct, S.L. also explained that in her first
disclosure interview, it was difficult to tell Oleson and
Thompson that the abuse occurred both under and over her
clothing. She confirmed that the interviewers showed her a
diagram of an unclothed human body in order for her to
identify where she had been touched. By pointing to areas of
the unclothed body in the diagram, she believed she had
conveyed in the first disclosure that she was touched under
and over her clothing. On re-cross, she continued to deny
having written anything that was factually untrue, and could
not explain the erroneous contents of the letter to her
counselor.
The prosecution next presented Haiden and Patricia.
Haiden did not recall telling Oleson that Gilbreath kissed her
like a boyfriend but agreed that, because the interview
occurred a long time ago, it was “maybe” possible that she said
it. Haiden testified that Gilbreath called S.L. a “bitch,” and said
he also called the other children names when he was angry.
Haiden confirmed that Gilbreath sometimes came into the
girls’ bedroom at night. Although she was usually sleeping
when he came in, she recalled that he would say goodnight
and hug them. She would not fall asleep again until he left. She
denied telling Oleson in 2010 that she did not know what
happened when Gilbreath would come into the room at night
16 No. 20-2638
because she would roll over. Shown Oleson’s report of her
2010 interview, Haiden said that her memory was not
refreshed. She did recall crying at the interview, agreeing that
the interview was difficult for her and that it ended because
she was upset. She did not recall telling Oleson that she was
“the lucky one.” R. 6-12, at 257. She conceded that it was
possible that she told Oleson that she was the lucky one
because she was “really confused then.” R. 6-12, at 258. Haiden
also confirmed that Gilbreath had inappropriate conversations
with his children about his sex life, including discussions about
receiving oral sex. She recalled being fifteen or sixteen during
the conversation about oral sex.
On cross-examination, Haiden recalled Gilbreath visiting
the room but not getting between the girls on the futon bed;
instead he “either sat on our bed or laid on our bed
somewhere.” R. 6-12, at 265. Haiden also testified that
Gilbreath talked about his sexual escapades in front of S.L.,
Giovanni and herself, and that they would laugh when he said
these things.
Patricia testified that she found out about S.L.’s second
disclosure only after calling Bitsky to find out why Gilbreath
had been arrested. Patricia met the next day with Oleson and
asked her to remove S.L. from the home because she did not
want her around and was “done with her.” R. 6-12, at 293. As
for S.L.’s boyfriend Robert, Patricia testified that S.L. was
allowed to visit him at his home when his parents were present
but was not allowed to stay overnight. Patricia denied that S.L.
was a “problem child,” but said that, beginning at the ages of
fourteen or fifteen, she did not want to be told what to do
anymore, that she “wanted to come and go,” and wanted to
No. 20-2638 17
date. R. 6-12, at 300. But they did not allow her to stay out late
and required her to let them know where she was. Patricia
confirmed that S.L. was never suspended or expelled from
school; nor was she ever in juvenile court. Asked if it was her
belief that S.L. disclosed the sexual assault because there were
restrictions and she did not want to follow the rules, Patricia
replied, “Well, her license was cut up and stuff like that. She
wanted to go and do what she wanted to do, and she couldn’t
do that.” R. 6-12, at 302. The prosecutor then asked what the
problem was when S.L. was fourteen that Patricia believed
caused her to retaliate by alleging sexual assault (at the time of
the first disclosure), and Patricia responded, “I don’t know.”
R. 6-12, at 302.
Patricia conceded that Gilbreath was harder to deal with
when he was drunk and became “cocky.” R. 6-12, at 306. At
those times, she would not talk to him. She testified that he
went out drinking once or twice a week. She confirmed that,
when he came home drunk, he would sometimes go into the
girls’ rooms, where she could see him from the couch where
she slept. He sometimes lingered there long enough for her to
ask him what he was doing. She said that he sat on the floor in
the girls’ room, and that although she was a light sleeper, it
was possible that she fell back asleep on occasion when he was
in the girls’ room.
Rather than calling Oleson as a witness, the parties agreed
to two stipulations regarding Oleson’s reports. The prosecution
read the following stipulation to the jury:
If called to testify, Social Worker Kelly Oleson
would testify that, at one point in the interview of
18 No. 20-2638
Haiden Gilbreath on June 2, 2010, Haiden stated,
quote, “I was the lucky one.”
R. 6-13, at 6. Defense counsel told the jury:
[T]he defense notes that it’s the agreement of the
parties that were Kelly Oleson called to testify,
that—about the interview of [S.L.], January 26 of
2008, that [S.L.] was asked how many times the
touching had occurred. And she stated, “Five or six
times.”
R. 6-13, at 6. That concluded the prosecution’s case-in-chief.
Gilbreath then testified in his own defense. He conceded
that he had eight convictions for driving under the influence,
and asserted that May 11, 2006, the day of his last arrest for
drunk driving, marked the last time he consumed alcohol. He
also admitted that on certain occasions prior to that May 2006
arrest, when he was on probation after serving time in jail for
driving under the influence, he violated the conditions of his
probation by continuing to drink alcohol.6 He testified that
during his last period of custody (from 2006 to 2008), he
decided to stop drinking and entered an alcohol treatment
program at an inpatient facility.
Shortly before his release from prison in 2008, he learned
from his wife that S.L. had accused him of sexual abuse. He
6
On cross-examination, he admitted that he drank in violation of his
probation conditions when on release after a drunk driving offense in 2004.
He testified that although he was going to bars once or twice a week during
that time, he was not caught, and he agreed that Patricia, Haiden and S.L.
covered for him during that time. R. 6-13, at 114–16.
No. 20-2638 19
testified, “I swallowed my heart,” when he heard this, and
could not believe that S.L. “would lie about me sexually
assaulting her.” R. 6-13, at 71. He admitted that he came home
drunk late at night four or five times a month,7 and that he
infrequently8 went into the girls’ room in that condition. He
testified that he also went into his sons’ room when he came
home drunk, because he missed his children. He explained that
when he went into the children’s rooms, he would smoke a
cigarette, drink a glass of water, say goodnight, tell the
children he loved them, and say prayers with them. He
testified that he stayed in the rooms for five minutes or less.
Counsel led Gilbreath through the small layout of the house,
the sleeping arrangements, the lighting at night, and the
improbability that a grown man could get into a small futon
with two children without Patricia or Haiden noticing that he
was there. Gilbreath denied climbing on the futon with the
girls during nighttime visits.9
He described himself as the principal disciplinarian of the
family, imposing punishments that included grounding,
7
On cross-examination, he said he went to bars once or twice a week,
sometimes more and sometimes less. R. 6-13, at 108.
8
On cross-examination, he called his visits to the girls’ room “rare,”
claiming that although it was important to him to say good night to his
children and although he came home drunk once or twice a week, he went
into the girls’ room at night only a “couple times” throughout their entire
childhood. R. 6-13, at 109–10.
9
He conceded on cross-examination that he did lay on the futon with his
children during the day, but claimed he was never on the futon with both
S.L. and Haiden at the same time. R. 6-14, at 134–35.
20 No. 20-2638
chores, spanking, and writing out the alphabet. Asked if the
girls had behavioral problems that required discipline before
he went to prison in 2006, Gilbreath replied, “Not so much the
girls.” R. 6-13, at 90. Asked about behavioral problems among
the children after he was released from prison in 2008,
Gilbreath testified that S.L. was constantly lying, going places
other than where she said, not coming home on time, and not
calling. He imposed discipline but she continued to break his
rules. At one point, as a result of her lying, he decided to cut
her driver’s permit in half because he did not trust her driving
on his insurance. S.L. cried when he cut the permit in half. He
also was “a little bit” concerned about her relationship with
Robert, and had placed restrictions on the times and places that
she could be with him. R. 6-13, at 102. S.L. argued with him
over the restrictions. Asked about his relationship with S.L.
during that time, Gilbreath responded, “In that time frame, me
and [S.L.] were fine. Me and [S.L.] got along just fine.” R. 6-13,
at 103. In clarifying the time frame, Gilbreath explained that he
and S.L. were “fine until I cut her license in half. And then she
began to somewhat isolate. We got along.” R. 6-13, at 103. As
for the timing of cutting up the permit, Gilbreath believed it
No. 20-2638 21
was a week or two before he was taken into custody in 2010.10
R. 6-13, at 104.
Gilbreath testified that he was interviewed by law
enforcement after each of S.L.’s disclosures. When he was
released from prison in 2008, he voluntarily spoke to detectives
about S.L.’s allegations. He told them that it did not happen
and he did not know why she would make such accusations.
Two years later, he was taken into custody for two months on
a report that he had been drinking and driving in violation of
his probation conditions. He denied that he had been drinking,
and admitted only that, although he was not permitted by the
conditions of his probation to go to bars, he had done so in
order to pick up his children from work.11 During this two-
10
There was some confusion in the record on the timing of the driver’s
permit incident. On cross-examination, Gilbreath agreed that he cut up
S.L.’s permit in the spring of 2008, approximately two years before the
second disclosure. R. 6-14, at 129. In closing arguments, the prosecutor
corrected what she characterized as a math error in her claim that two years
transpired between the permit incident and the second disclosure; she
asserted instead that one year and one month passed between the permit
incident and the second disclosure. R. 6-14, at 164. The jury was
admonished that the attorneys’ statements were not evidence. R. 6-14, at
148.
11
Cutting an exceedingly fine distinction, Gilbreath testified that he was
prohibited from entering bars or taverns, which he understood to mean
businesses that earned income mainly through selling alcohol. His children
worked at a resort which he thought he was allowed to enter. He admitted
to “hang[ing] out” at the resort “[a] little bit,” but denied drinking while he
was there. R. 6-13, at 97. Nevertheless, when released after the two-month
incarceration, he was required to report in to probation by phone at certain
(continued...)
22 No. 20-2638
month incarceration, Bitsky interviewed him regarding S.L.’s
second disclosure. He told Bitsky that he was innocent, and
that he had nothing to say about something that did not
happen. The defense rested at the close of Gilbreath’s cross-
examination.
C.
The jury made short work of the case, retiring to the jury
room at 4:35 p.m. on a Friday afternoon, and returning with
the verdict of guilty at 6:05 p.m. The court sentenced Gilbreath
to ten years in prison, to be followed by fifteen years of
extended supervision. In a post-conviction motion, Gilbreath
sought a new trial on two grounds: in the interest of justice
because the real controversy of S.L.’s credibility was not fully
tried; and due to ineffective assistance of counsel.12 There was
considerable factual overlap between the two issues raised.
The same judge who presided over the trial held a hearing on
Gilbreath’s motion at which defense counsel testified
extensively regarding his representation of Gilbreath at trial.
We will discuss counsel’s testimony below. The court also
heard testimony from Aaron, Haiden, Giovanni, Kayla, Kayla’s
mother Dawn (who is Gilbreath’s sister), Gilbreath and
Patricia. The court denied the motion for a new trial, rejecting
11
(...continued)
times and submit to Breathalyzer tests. A jury could infer from this that
probation suspected that he was in fact drinking again.
12
Gilbreath raised additional issues on the post-conviction motion that are
not relevant to the issues on appeal. The court denied relief on those claims
as well.
No. 20-2638 23
both grounds. In rejecting the statutory claim that the real
controversy of S.L.’s credibility was not fully tried, the court
noted that the defendant bore the burden of demonstrating a
substantial probability that a new trial would produce a
different result. See Wis. Stat. § 752.35. The court found that the
jury did in fact hear evidence on every one of the topics raised
by Gilbreath. The court dismissed the need for “new witnesses
or more witnesses saying the same thing,” characterizing the
proposed evidence as “just old wine and new bottles.” R. 6-16,
at 18. The court characterized the omitted evidence as
repetitive and cumulative, and concluded that Gilbreath did
not demonstrate a substantial probability that a new trial
would produce a different result.
The court also rejected the motion for a new trial based on
ineffective assistance of counsel. Gilbreath asserted that
counsel was ineffective because: (1) he did not object on
hearsay and confrontation grounds when S.L. testified that she
reported the assaults to family members and they responded
with supportive statements; (2) he failed to impeach S.L. with
prior inconsistent statements regarding the nature of the
assaults and her motive to lie; (3) he did not present family
witnesses who could have contradicted S.L.’s testimony and
corroborated a motive to lie; (4) he did not present numerous
witnesses regarding S.L.’s character for truthfulness; (5) he
failed to present evidence on the authenticity of letters
purportedly written by S.L. to Gilbreath when he was in
prison;13 and (6) he failed to investigate the existence of an
13
This issue was raised in relation to a request to vacate the sentence and
(continued...)
24 No. 20-2638
audio recording of S.L.’s 2010 second disclosure interview with
Oleson and Bitsky.
In assessing defense counsel’s testimony regarding his
strategy and trial decisions, the court remarked that the
transcript “should be required reading in every law school trial
practice class.” R. 6-16, at 25. Although some of counsel’s
tactics did not work out the way he thought they would, his
decisions were rational and based on the law and the facts, the
court found, noting that counsel had “sound reason[s]” for the
trial strategy decisions that he made. Id. In particular, he used
third party witnesses to impeach S.L.’s testimony and also
impeached her with prior inconsistent statements. He
presented evidence regarding the crowded physical layout of
the house and the close proximity of witnesses who saw and
heard nothing amiss. He made clear that once he impeached
S.L. regarding the letter to her counselor, he made a conscious
decision that more impeachment, more evidence regarding her
mental health, and more testimony about her character for
untruthfulness was not only unnecessary but would have
blunted the effect of what he accomplished in that cross-
examination. Counsel testified that his cross-examination of
S.L. was better than he could have ever hoped it would be, and
13
(...continued)
re-sentence Gilbreath because the court purportedly relied on incorrect
information when it concluded that the prison letters from S.L. were forged.
The court rejected the claim that additional witnesses on the origin of the
letters would have changed his conclusion that the letters were forged.
During the post-conviction hearing, the court reiterated its finding that the
letters purportedly written by S.L. to Gilbreath while he was in prison were
forged. R. 6-16, at 31–34.
No. 20-2638 25
the court agreed with that assessment. Indeed, the judge
remarked, “I thought [S.L.] had been cut to pieces.” R. 6-16, at
26. According to the judge (recall, this was the same judge who
presided over the trial), counsel “got [S.L.] to, in my
view—obviously not in the jury’s view—but in my view, kind
of self-destruct.” R. 6-16, at 27. The cross-examination on the
letter to the counselor was effective enough to cause the court
to characterize the case as “enough … to go to the jury, but it
certainly wasn’t a real strong case.” R. 6-16, at 26. With regard
to the witnesses called and the testimony given at trial, the
court could not conclude that counsel’s performance fell
outside the wide range of competent professional services
taken as a whole.14 The court’s only area for concern was
counsel’s failure to realize that Oleson’s 2010 report indicated
that Bitsky had recorded the interview. Because he did not
notice that note in Oleson’s report, he did not seek the
recording for possible use at trial. The court had already
concluded in analyzing the “real controversy” motion that,
despite that notation, such a recording did not exist at the time
of trial and did not exist at the time of the post-conviction
hearing, so counsel’s error had no effect on the outcome. R. 6-
16, at 14, 29. In the end, the court concluded that counsel’s
performance was not deficient and that Gilbreath had not been
prejudiced by any of counsel’s claimed errors or omissions.
14
In considering Gilbreath’s claim that defense counsel should have
presented additional witnesses, the court found as a factual matter that
Aaron was unavailable to testify at Gilbreath’s trial because he was on
probation in Colorado and was prohibited from leaving the state at that
time. R. 6-16, at 15. Gilbreath makes no effort in this appeal to demonstrate
that the court’s factual finding was erroneous in any way.
26 No. 20-2638
The Wisconsin Court of Appeals affirmed the trial court’s
ruling. The court noted that, at the post-conviction hearing,
various members of the Gilbreath family testified that they
believed that S.L. had a character for untruthfulness, and that
none of them had ever witnessed the alleged assaults despite
being in close proximity in the small house. In rejecting the
statutory claim that the real controversy of S.L.’s credibility
had not been fully tried without this additional evidence, the
court cited State v. McAlister, 911 N.W.2d 77 (Wis. 2018), and
concluded that the evidence Gilbreath sought to introduce was
simply new impeachment material of the same general
character as impeachment evidence produced at trial, and was
therefore cumulative. That evidence included testimony from
Aaron and Kayla denying that S.L. ever disclosed the assaults
to them; evidence that S.L. had behavioral problems and that
Gilbreath interfered with her dating life; evidence that S.L. said
in her 2008 first disclosure interview that the touching
occurred only over her clothing and that she said nothing at
that time about the three specific assaults that she described at
trial; testimony by Aaron, Giovanni, Kayla and Haiden
challenging S.L.’s credibility; testimony from family members
regarding S.L.’s motive to lie in 2008 and regarding her
behavioral problems and motives in 2010 at the time of the
second disclosure; and evidence that undermined S.L.’s claim
at trial that she did not recall sending certain letters to
Gilbreath when he was in prison. The court of appeals held
that none of this omitted evidence warranted a new trial on the
statutory claim.
Turning to the claim that counsel was ineffective for failing
to investigate and present certain impeachment evidence, the
No. 20-2638 27
court of appeals concluded that Gilbreath suffered no prejudice
from counsel’s decisions because all of the evidence that he
wanted counsel to present was merely cumulative and would
not have changed the outcome of the trial. In a footnote, the
appellate court also concluded that counsel’s performance was
not deficient, summarily affirming the decision of the post-
conviction court as being consistent with the record and the
law. In addition, the court found that after causing S.L. to
“kind of self-destruct” on the stand, “counsel’s decision to stop
impeachment when he did, and not to call additional witnesses
to further impeach S.L. ‘on the same topic,’ was a reasonable
trial strategy under the circumstances, because trial counsel
could reasonably have determined that doing otherwise would
have weakened Gilbreath’s case.” State v. Gilbreath, 2018 WL
2347126, *4 n.5 (Wis. Ct. App. May 24, 2018).
After the Wisconsin Supreme Court denied Gilbreath’s
petition for review, he brought his federal habeas petition,
which the district court granted. Gilbreath v. Winkleski, 476
F. Supp. 3d 804 (W.D. Wis. 2020). Because our review of that
decision is de novo, we will only briefly sketch the district
court’s ruling. The court found that counsel was ineffective
and that the state appellate court’s decision affirming the
conviction was unreasonable. The court focused on counsel’s
alleged failures to investigate and present evidence that could
have corroborated Gilbreath’s testimony, further undermined
S.L.’s credibility, and provided a motive for S.L. to lie at the
time of her first disclosure in 2008. The court found that the
failure to present certain evidence was due not to strategic
decisions during trial but to a failure to investigate before trial.
The court found counsel’s explanations for why he made
28 No. 20-2638
certain decisions “not plausible” and concluded that many of
counsel’s decisions not to impeach S.L. with prior inconsistent
statements were based on inadvertence or neglect rather than
strategy. The court found that these various failures prejudiced
Gilbreath because the proposed evidence would have been
corroborative, not merely cumulative, and could have changed
the outcome in this credibility contest. The court also found
that the state court engaged in an unreasonable application of
Strickland when it applied state rather than federal law in
determining that the evidence was merely cumulative instead
of corroborative. Under federal law, the evidence would be
considered corroborative, according to the district court, and
because the case was close, the errors had a “reasonable
chance” of affecting the outcome. The district court therefore
granted the writ, and the State of Wisconsin now appeals.
II.
On appeal, the State contends that the Wisconsin Court of
Appeals neither unreasonably applied the law as set forth in
Strickland nor relied on an unreasonable determination of the
facts when it concluded that counsel was not deficient and that
Gilbreath suffered no prejudice from the failure to present
evidence that it determined was cumulative. We review the
district court’s grant of Gilbreath’s habeas petition de novo.
Goodloe, 4 F.4th at 448; Mosley v. Butler, 762 F.3d 579, 587 (7th
Cir. 2014).
Because this appeal is governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), we give great
deference to the state court. Goodloe, 4 F.4th at 448–49. Where
the state court has made a decision on the merits, we may
No. 20-2638 29
grant relief only if that decision was “contrary to, or involved
an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,” or
“was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97–98
(2011); Goodloe, 4 F.4th at 449. In making out a claim for
ineffective assistance of counsel:
First, the defendant must show that counsel’s
performance was deficient. This requires showing
that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel’s errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). When a claim
of ineffective assistance is assessed in the context of a habeas
proceeding, the “pivotal question is whether the state court’s
application of the Strickland standard was unreasonable. This
is different from asking whether defense counsel’s
performance fell below Strickland's standard.” Richter, 562 U.S.
at 101. Section 2254:
preserves authority to issue the writ in cases where
there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with
[the Supreme] Court’s precedents. It goes no further.
30 No. 20-2638
Section 2254(d) reflects the view that habeas corpus
is a “guard against extreme malfunctions in the state
criminal justice systems,” not a substitute for
ordinary error correction through appeal. As a
condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state
court’s ruling on the claim being presented in
federal court was so lacking in justification that
there was an error well understood and
comprehended in existing law beyond any
possibility for fairminded disagreement.
Richter, 562 U.S. at 102–03. Because the standards created by
Strickland and section 2254(d) are both highly deferential,
“when the two apply in tandem, review is ‘doubly’ so.” Richter,
562 U.S. at 105.
A.
Gilbreath argues that he was denied the effective assistance
of counsel when his trial lawyer failed to: (1) investigate S.L.’s
claims that she disclosed the assaults to Aaron and Kayla,
neglecting to interview them or present their testimony;
(2) impeach S.L.’s testimony denying her motive to lie with her
prior statements discussing her behavioral problems and
Gilbreath’s interference with her dating life; (3) impeach S.L.
with inconsistencies between the statements she made in the
first disclosure and her testimony at trial, and with her failure
to mention at the initial disclosure any of the three specific
instances of abuse she testified to at trial; (4) investigate
witnesses and present testimony from family members
corroborating Gilbreath’s version of events and establishing
No. 20-2638 31
S.L.’s character for dishonesty; and (5) present evidence
regarding S.L.’s motive to lie at the time of the first disclosure
or regarding S.L.’s behavioral problems leading up to the
second disclosure.15 To establish deficient performance, a
person challenging a conviction must show that counsel’s
representation fell below an objective standard of
reasonableness, applying a strong presumption that counsel’s
representation was within the wide range of reasonable
professional assistance. Richter, 562 U.S. at 104; United States v.
Best, 426 F.3d 937, 945 (7th Cir. 2005) (review of the attorney’s
performance is highly deferential and reflects a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy).
We begin with the question of whether counsel was
deficient, and more specifically with the question of whether
the state court’s application of the Strickland standard on
15
As the State of Wisconsin noted in its reply brief, Gilbreath’s habeas
claims have changed over time. At the time of the post-conviction hearing,
Gilbreath withdrew multiple claims of deficiency including several that he
brings on appeal now. Some of these issues overlapped factually with
Gilbreath’s statutory “real controversy” claim and so the factual record was
developed in the Wisconsin courts. In the interests of simplifying the case,
the State elected on appeal to withdraw its claims of procedural default for
those issues. However, as the State notes, Gilbreath’s withdrawal of those
claims in the post-conviction court led the court to not make findings or
legal conclusions on those claims in the context of ineffective assistance
under Strickland. Because the State has essentially waived waiver, we will
address these claims on the merits.
32 No. 20-2638
deficiency was unreasonable. Gilbreath’s trial lawyer,
Christopher Van Wagner, testified extensively regarding his
trial strategy, and how it affected his decisions throughout the
trial. “[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than
complete investigation are reasonable precisely to the extent
that reasonable professional judgments support the limitations
on investigation.” Strickland, 466 U.S. at 690–91. Gilbreath
contends that the state court unreasonably applied Strickland
by deferring to some of Van Wagner’s decisions as strategic
when in fact they were based on an incomplete investigation.
We disagree. Van Wagner’s explanation of his pre-trial
decisions and the application of his strategy as the case
unfolded before the jury was, as the trial court remarked in the
post-conviction oral ruling, worthy of being “required reading
in every law school trial practice class.” R. 6-16, at 25. Van
Wagner’s theory of the defense was that S.L. fabricated the
allegations. Fully aware that a young accuser in a sexual abuse
case can be perceived sympathetically by the jury, he sought to
demonstrate not that she was a liar but rather that she was not
a reliable witness:
[T]he core of the defense was that she’s not reliable.
Not that she’s lying. … [M]y general approach is not
to treat a young witness who claims to have been as-
saulted … with attack mode but rather with, we
need to feel sorry for her but we can’t rely on her.
That’s where I really wanted to be. And sometimes
… I’ll even say she believes it happened but that
No. 20-2638 33
doesn’t mean it did, which is to give her emotional
credibility but not factual credibility.
R. 6-15, at 113. As part of this approach, he sought to show
“both the incredulity of or … the unbelievability of her
accusations given the physical layout [of the house] and the
witnesses who were present. And also to show that she had a
number of reasons why she may well have wanted to be out of
the house and be … away from [Gilbreath].” R. 6-15, at 57–58.
As for those latter reasons, he sought to show that she rebelled
against Gilbreath as the disciplinarian and the person who was
blocking her access to boyfriends. He explained that in
attacking the credibility of a witness, he chose which avenues
to use both before trial and as the case unfolded at trial. He
was thus prepared with documentation of S.L.’s prior
statements in case he decided to impeach her on that basis, and
also sought to use the layout of the house combined with “the
incredibly intimate proximity of various witnesses” to the site
of alleged molestation to show that it was highly improbable
that her version of events could have occurred and yet gone
unnoticed by Patricia and Haiden. R. 6-15, at 58.
He did in fact attempt to impeach S.L. with the different
versions that she had given of Gilbreath’s conduct, beginning
with the number of times that she alleged that he assaulted her.
He was successful in showing that she disclaimed the
statement recorded in Oleson’s first report that the abuse
occurred only five or six times, and proved up that
34 No. 20-2638
inconsistency with the stipulation regarding Oleson’s report.16
But after the difficulty of questioning S.L. on that point, he
stayed away from attempting to impeach her with prior
inconsistent statements followed by a prove-up for fear that he
would be perceived by the jury as “attacking” S.L. by
“lock[ing] her in” with “lawyers questions” and saying, “didn’t
you say this, and didn’t you say that.” R. 6-15, at 79.
Primarily, though, he did not wish to detract from the
extraordinary success he had in impeaching S.L. with the letter
she wrote to her counselor:
By the time she had finished giving her answers
about the type written statement for the psycholo
gist I didn’t feel that there was anything else I
should do to give the chance to the State to
rehabilitate her credibility because she basically said
I didn’t write what I wrote. And that was something
I could never have expected in trial and this is what
I mean about focusing on what the witness is doing
and saying. … I thought that by the time she had
essentially and unbelievably denied typing the four
page statement that she typed and saying the things
she had put in there that at that point if there was
ever going to be a jury that was going to have a
problem with her credibility that was the moment.
And then to go into other areas while certainly
16
Van Wagner also explained that he did not wish to have Oleson testify
and did not wish to risk admitting her full reports because substantial parts
of the reports and Oleson’s likely testimony would have been very harmful
to Gilbreath’s case.
No. 20-2638 35
scorched earth in nature, exhaustive in nature would
… not discredit but would undercut … the visceral
impact to the jury.
R. 6-15, at 67. He felt that S.L. had “made herself out to be
virtually delirious on the stand or incredible,” and that he did
not wish to risk detracting from what he felt was Gilbreath’s
“optimal position in front of the jury” by trying to prove up
statements through witnesses who might be hostile to the
defense. He had a file marked with S.L.’s prior statements, had
them at the ready for cross-examination, and decided as a
strategic matter not to prove up certain prior inconsistent
statements. R. 6-15, at 63. He described his thought process:
I knew in my opinion at that time my strategic view
of the four page type written letter to the therapist
was it was manna from heaven. It was a piece of
gold. And … if we were ever going to get an
acquittal it was going to be a, a fulcrum point. And
so if you recall in my cross-examination I spent the
first five to seven minutes … locking into the truth
and the extent and the detail and the completeness
and the absolute reliability of that statement without
asking her about a single piece of its content. My
intent was to finish my cross with that[.]
R. 6-15, at 72. He then sought to have S.L. affirm the layout of
the room and house and the location of the witnesses to show
the improbability of her claim that the masturbation incident
(among others) had occurred steps away from Patricia and in
the same bed as Haiden without them noticing, before
returning to the content of the letter. When he began
36 No. 20-2638
questioning her about the content, he had not expected that she
would begin to deny writing something that minutes earlier
she had “been locked into committing that she had written the
whole thing.” R. 6-15, at 73. This made her appear “delusional”
in his view, and at that point, he moved away from individual
impeachments so that he could focus on “getting as much of
this deluded response out of her.” R. 6-15, at 73–74.
In response to questions about various decisions he made
during the trial, Van Wagner indicated that, although with the
hindsight of knowing that his strategy did not carry the day
with the jury he would prefer to have done things differently,
he believed at the time that he had made the best possible
decisions for Gilbreath’s defense. R. 6-15, at 66, 68–69.
Counsel’s explanation of his trial decisions and strategy at the
post-conviction hearing covered approximately seventy pages
of transcript, and so far we have sketched out his strategy in
only the broadest terms. Although we assess counsel’s
performance as a whole, we must turn to Gilbreath’s particular
claims of ineffective assistance and Van Wagner’s explanation
in each instance before considering the whole.
1.
Gilbreath asserts that counsel was ineffective for failing to
investigate S.L.’s claims that she contemporaneously disclosed
the assaults to Aaron and Kayla, neglecting to interview them
or present their testimony. Both Aaron and Kayla would have
testified that S.L. never mentioned the assaults to them,
impeaching S.L.’s claim that she reported the assaults to them
and that they responded supportively. Van Wagner testified
that he was aware that S.L. claimed she had disclosed the
No. 20-2638 37
assaults to Aaron and Kayla. Van Wagner did not believe that
Aaron had anything useful to add to the trial, noting that he
preferred to present the two closest eyewitnesses: Haiden, who
shared a bed with S.L., and Patricia, who slept a few steps
away. Van Wagner thought that a teenaged boy asleep in a
bunk bed above S.L.’s futon would not have anything useful to
offer. But more importantly, he testified that Aaron was living
in Colorado at the time of the trial and was having legal
problems of his own. Gilbreath did not want Aaron to return
for the trial, and together Van Wagner and Gilbreath decided
not to bring Aaron to Wisconsin for the trial. In fact, Aaron was
on probation in Colorado and was not allowed to leave the
state. As a result of Gilbreath’s wishes, counsel’s judgment and
Aaron’s own legal difficulties, Van Wagner spoke to Aaron
mostly about whether he could be forced by the State of
Wisconsin to return to testify and did not go into detail with
him regarding his knowledge of S.L.’s claims. See Strickland,
466 U.S. at 691 (“[W]hen a defendant has given counsel reason
to believe that pursuing certain investigations would be
fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.”).
The post-conviction court concluded as a factual matter that
Aaron was not available for trial and so gave no weight to any
claims that counsel was ineffective for failing to call Aaron for
any purpose.17 Gilbreath offers nothing to counter this factual
finding, and we therefore cannot conclude that the state court
17
At most, Aaron would have testified that he did not witness any abuse,
that he believed S.L. to have a character for untruthfulness, and that S.L. did
not tell him about the assaults at the time they occurred.
38 No. 20-2638
unreasonably applied Strickland in declining to find counsel
ineffective in relation to Aaron’s possible testimony.
As for Kayla, counsel believed that he spoke to all family
members who attended the trial, some before and some during
the trial. He could not specifically recall talking to Kayla about
S.L.’s disclosure claim and he did not consider calling her to
impeach S.L. about whether she disclosed the assaults at the
time they were occurring. Although he could not recall making
a decision specifically about objecting on hearsay grounds to
S.L.’s testimony about her purported conversation with Kayla,
he explained that his general practice was not to object unless
he felt the testimony would hurt the case; he did not wish to
give the jury the impression that he was seeking to prevent
them from knowing the truth. He assumed from his failure to
object that he did not believe at the time that he should. He
also explained that he does not cross-examine on every topic,
instead limiting himself to things that highlighted the areas
most fertile in the case. And as we noted above, he sought not
to show that S.L. was a liar but that she was unreliable, a
reasonable strategy with a young accuser.
Kayla would have testified that S.L. did not disclose the
assaults to her and that she believed S.L. was not a truthful
person. In denying the post-conviction motion, the state court
credited Van Wagner’s testimony that he did not believe that
third-party impeachment of S.L. was an effective tactic, and
believed at the time of trial that it would have harmed
Gilbreath’s case for several reasons, including by detracting
from what defense counsel had already accomplished. Under
Strickland, “a particular decision not to investigate must be
directly assessed for reasonableness in all the circumstances,
No. 20-2638 39
applying a heavy measure of deference to counsel’s
judgments.” 466 U.S. at 691. Even if a decision not to further
investigate Kayla was a mistake, that is not enough to
characterize a lawyer’s judgment as ineffective assistance. See
Makiel v. Butler, 782 F.3d 882, 901–02 (7th Cir. 2015) (a
miscalculation constitutes deficient performance only where
the miscalculation was objectively unreasonable). See also
Strickland, 466 U.S. at 690–91 (“[S]trategic choices made after
less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation.”). We cannot say that Van
Wagner’s decision not to investigate Kayla further in light of
what he already knew and in the context of his general strategy
was objectively unreasonable. Nor can we say that the state
court unreasonably applied Strickland in refusing to fault Van
Wagner for this choice. See Yarborough v. Gentry, 540 U.S. 1, 8
(2003) (even if an omission by counsel is inadvertent, relief is
not automatic; the Sixth Amendment guarantees reasonable
competence, not perfect advocacy judged with the benefit of
hindsight). And as we note below, any failure to investigate
Kayla further and present her testimony was not prejudicial.
2.
Gilbreath next contends that counsel was ineffective for
failing to impeach S.L.’s testimony denying her motive to lie
with her prior statements discussing her behavioral problems
and Gilbreath’s interference with her dating. Specifically, he
contends that counsel should have impeached S.L. regarding
the inconsistency between her claim during the 2008 disclosure
that the touching occurred only over her clothes, and her 2010
disclosure where she reported touching under her clothing. But
40 No. 20-2638
of course, counsel did ask S.L. about her claim in 2008 that the
touching occurred only over her clothing, although he
admittedly did not prove up this assertion by presenting
Oleson’s written report on this point.18 Nevertheless, counsel
explained that the decision not to prove up prior inconsistent
statements was a strategic decision he made at the time of the
trial. R. 6-15, at 63–64. He did not wish to detract from what he
accomplished in showing her to be “virtually delirious” in her
testimony about the letter to her therapist, and he generally did
not like to impeach with and prove up prior inconsistent
statements because such evidence “causes jurors eyes to glaze
over and they don’t follow it.” R. 6-15, at 63. He had difficulty
impeaching S.L. regarding the number of times the assaults
occurred and decided against pushing the point again. He also
held the view that “in general that kind of prove up is a
wonderful law school or deposition technique but jurors just
don’t want to follow it very well. They just tend to lose
interest.” R. 6-15, at 64–65. Although in hindsight he regretted
not proving up the inconsistent statement regarding touching
under versus over the clothing, he made a decision at the time
not to pursue it and detract from what he believed to be the
zenith of the case. That decision was not an objectively
unreasonable strategy, and as such, it cannot be characterized
as ineffective assistance.
18
Counsel’s questioning on the under-versus-over-the-clothing issue was
successful enough that the State sought to rehabilitate S.L. on this topic on
re-direct examination. R. 6-11, at 218. The jury was instructed that sexual
contact either directly or through the clothing qualifies as sexual abuse. R.
6-14, at 154-55.
No. 20-2638 41
Gilbreath also argued that counsel should have impeached
S.L. regarding her motive to lie in 2010 when she denied that
she was getting into trouble at home and denied that her
parents objected to her relationship with Robert. Gilbreath lists
a number of prior inconsistent statements that counsel could
have used to impeach S.L. on these topics. We will not repeat
our analysis regarding counsel’s strategic decisions generally
not to impeach with prior inconsistent statements. We will add
only that counsel was of the view that he thoroughly
addressed these very topics when he questioned S.L. about the
statements she wrote to her therapist, where she referred to
herself as a “wild child,” and in the testimony of Gilbreath,
Patricia and Haiden that S.L. was getting into serious trouble
with Gilbreath frequently. He had also addressed the driver’s
license issue, which he characterized as a “huge deal” to a
teenager. But he did not wish to attack her further and risk the
jury thinking, “[L]eave her alone for crying out loud. … [T]he
poor girl is doing the best she can.” R. 6-15, at 78–79.19 See
Bergmann v. McCaughtry, 65 F.3d 1372, 1380 (7th Cir. 1995)
(deciding not to cross-examine a sympathetic victim/witness
was well within the realm of sound trial strategy, and we will
not, in hindsight, second-guess that decision). When asked
about failing to impeach S.L. with her prior statements about
her father’s dislike of Robert, counsel replied, “My answer is
19
Counsel also explained that he was very careful to avoid using
impeachment materials from the interviews with Oleson and Safe Harbor
for fear that the trial court would allow the entire documents be entered
into evidence at the State’s request for completeness and context. He wished
to avoid the entry into evidence of significant amounts of information that
would have been adverse to Gilbreath’s case.
42 No. 20-2638
the same. … I did what I did because I thought it was the best
at the time,” explaining that he abandoned the idea of paper
impeachments or collateral witness impeachments because S.L.
had “self-impeached quite well.” R. 6-15, at 83. These were not
objectively unreasonable decisions.
3.
Gilbreath next asserts counsel should have impeached S.L.
with her failure to mention in her first disclosure the three
specific, more graphic incidents that she described at trial.
Asked about his failure to do so during the post-conviction
hearing, Van Wagner explained his entire impeachment
strategy and his decision to forgo this type of impeachment
after he cross-examined S.L. regarding her letter to the
therapist. R. 6-15, at 71–77. His explanation, some of which we
quoted above, occupied five or six pages of the transcript, and
was based on reasonable strategic decisions grounded in the
facts of the case and the law, as the state court found, and
requires no further analysis.
4.
This conclusion applies equally to counsel’s decisions not
to call Aaron, Giovanni, Kayla, and Kayla’s mother Dawn to
testify that they observed no sexual touching or suspicious
conduct when in the presence of S.L. and Gilbreath, and in the
case of the latter three witnesses, that they believed that S.L.
had a reputation for untruthfulness. We have already
addressed Aaron’s unavailability for trial, and need not
address this claim further as it relates to him. In the case of
Giovanni, counsel testified that no one had suggested to him
prior to trial that Giovanni would have something helpful to
No. 20-2638 43
say. See Strickland, 466 U.S. at 691 (whether investigation
decisions are reasonable depends critically on information
provided by the defendant). As with Aaron, Giovanni was in
a bunk bed above S.L. and was not as direct a witness as
Haiden or Patricia. Van Wagner did not believe that having
Giovanni testify that he saw nothing would add anything to
the testimony of Haiden and Patricia, characterizing his
potential contributions as “negligible,” especially in
comparison to Haiden who shared a bed with S.L. and said she
saw nothing. R. 6-15, at 97. Although in hindsight, counsel
thought it might have been better to call Aaron and Giovanni,
at the time, he decided not to because “teenage boys sleep like
rocks. They sleep through anything,” and because the jury
knew that the children shared the room and yet nobody came
forward and told investigators they witnessed anything. R. 6-
15, at 98. Giovanni was two years younger than S.L., and so
would have been seven years old when the abuse began. It is
difficult to say that counsel made an objectively unreasonable
decision in deciding not to interview a witness who would
have been seven or eight years old and without a direct line of
sight to the relevant events. In the end, Giovanni would have
said only that he did not see anything amiss and that he
believed S.L. to be untruthful. As the state court post-
conviction court noted, it was “not particularly surprising” that
after the jury believed S.L. and convicted Gilbreath, “family
members who sided with the defendant came out of the
woodwork to claim” that S.L. was a liar, but this was simply
the same evidence the jury had already heard from different
voices. R. 6-16, at 19. Counsel’s decisions not to have family
members pile on with claims that S.L. had a character for
44 No. 20-2638
untruthfulness or that they saw nothing amiss was a
reasonable strategy at the time of the trial. See Bergmann, 65
F.3d at 1380 (as a matter of trial strategy, counsel could well
decide not to call family members as witnesses because family
members can be easily impeached for bias).
5.
Finally, Gilbreath argues that counsel was ineffective
because he failed to provide evidence of a motive for S.L. to
fabricate the first disclosure in 2008, focusing instead on her
motives at the time of the second disclosure in 2010. This gap
was exploited by the prosecutor in questioning Patricia and in
closing argument, according to Gilbreath. In particular, Van
Wagner should have presented evidence that, in 2008, S.L. was
involved with a friend of Aaron’s named Dustin, who was four
years older than she, and that Gilbreath interfered with that
relationship in the same way he interfered with her
relationship with Robert in 2010.
Van Wagner testified that he sought to present a motive
that was the same throughout, namely that Gilbreath was a
strict disciplinarian against whom S.L. rebelled. He testified
that this motive was present “on a lesser scale in 2008 by all
accounts that came in,” and he did not have much more to
present as a motive for the first disclosure in 2008. R. 6-15, at
86. He therefore presented S.L. as having the same motives to
lie in 2008 as she had in 2010. He did not bring out evidence
regarding Dustin specifically, but he did present evidence that
Gilbreath was a strict disciplinarian both before he went to
prison and when he came home from prison. Counsel was also
wary of the dynamics in the courtroom during the presentation
No. 20-2638 45
of motive evidence because the defense side of the room was
full of Gilbreath’s relatives, and the other side held just a row
and a half of members of S.L.’s foster family and someone from
a support agency. He did not wish to get into an “internecin[e]
family battle,” and did not have more evidence to add beyond
the discipline evidence for a 2008 motive to lie. R. 6-15, at 85.
Van Wagner’s explanation of his handling of the 2008
motive to lie evidence is consistent with the testimony of both
Gilbreath and Patricia at trial and at the post-conviction
hearing. Both Patricia and Gilbreath professed not to know
why S.L. would lie in 2008, R. 6-12, at 52 and R. 6-13 at 92, and
Gilbreath testified that he did not understand that there was an
issue with Dustin until after he was released from prison.
R. 6-15, at 185. Gilbreath thus did not seek to limit S.L.’s
relationship with Dustin until some time after his release, and
in fact testified at trial that he did not really have problems
with S.L.’s behavior before he went to prison. R. 6-15, at
185–87; R. 6-13, at 90. Moreover, S.L.’s first disclosure came
before Gilbreath’s release, and so the timeline did not support
using her relationship with Dustin as a motive for lying about
Gilbreath.
Gilbreath also faults Van Wagner for failing to present
specific instances of S.L.’s behavioral issues in the 2010 time
frame in order to show her motive to lie. This evidence
included S.L. writing a note at school critical of Gilbreath for
telling her what to do when he was not her father; lying to
Gilbreath about her self-inflicted wounds; lying about staying
late at school for a school project when she was in fact meeting
up with a boyfriend; and arguing with Gilbreath about her
desire to take a two-week trip with Robert. But Van Wagner
46 No. 20-2638
explained several times why he decided not to impeach S.L.
with this type of evidence, and although he may have felt in
hindsight that it would have been better or more prudent to
employ this type of evidence, he repeatedly reaffirmed that he
made the best decisions he could for Gilbreath at the time
based on his judgment of how the trial was unfolding. Most
importantly, he had placed before the jury S.L.’s own
descriptions of her behavioral issues in the letter to her
therapist. Once again, Van Wagner’s reasons for declining to
present his type of evidence were the result of objectively
reasonable strategic decisions supported by the facts and the
law, and Gilbreath cannot show that the state court misapplied
Strickland on this point. Yarborough, 540 U.S. at 9 (“The issues
counsel omitted were not so clearly more persuasive than
those he discussed that their omission can only be attributed to
a professional error of constitutional magnitude.”); Dunn v.
Jess, 981 F.3d 582, 591 (7th Cir. 2020) (Strickland establishes a
deferential presumption that strategic judgments made by
defense counsel are reasonable); Yu Tian Li v. United States, 648
F.3d 524, 528 (7th Cir. 2011) (so long as an attorney articulates
a strategic reason for a decision that was sound at the time it
was made, the decision generally cannot support a claim of
ineffective assistance of counsel).
In sum, a petitioner’s burden in making a claim of
ineffective assistance is to show “that counsel made errors so
serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.”
Strickland, 466 U.S. at 687. The state court did not unreasonably
apply this standard in concluding that Gilbreath fell short of
that mark.
No. 20-2638 47
B.
Gilbreath failed to demonstrate that the state court’s
rejection of a claim of deficient performance was contrary to,
or involved an unreasonable application of, clearly established
federal law, or was based on an unreasonable determination of
the facts in light of the evidence presented in the state court
proceeding. That conclusion is sufficient to end this appeal, but
for the sake of completeness, we turn to the question of
prejudice, the second major prong of the Strickland analysis:
With respect to prejudice, a challenger must
demonstrate a reasonable probability that, but for
counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine
confidence in the outcome. It is not enough to show
that the errors had some conceivable effect on the
outcome of the proceeding. Counsel’s errors must be
so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.
Richter, 562 U.S. at 104 (internal citations and quotation marks
omitted). Again, because we consider Gilbreath’s Strickland
challenge in the context of a petition for a writ of habeas corpus,
our review of the state court’s decision on prejudice is highly
deferential. Gilbreath again falls short of the mark.
The post-conviction court found that counsel’s decisions
were the result of objectively reasonable strategic decisions
except in a single instance related to counsel’s failure to notice
that an interview with Oleson had been recorded. Gilbreath
does not complain of this error on appeal, and in any case, the
48 No. 20-2638
court found that it had no basis for concluding that Gilbreath
was denied a fair trial with a reliable result as a result of that
or any other error. The court of appeals also concluded there
were no prejudicial errors in trial counsel’s performance:
The matters that Gilbreath argues trial counsel
should have investigated and used to impeach S.L.
are the same matters we have discussed above [in
rejecting Gilbreath’s claim under Wis. Stat. § 752.35that the real controversy was not fully tried]. We
have explained, however, that S.L.’s credibility was
thoroughly impeached at trial and the new
impeachment material would be merely cumulative.
Therefore, there could be no prejudice to Gilbreath
as a result of counsel’s alleged deficient
performance, because the result of a new trial would
be the same.
State v. Gilbreath, 2018 WL 2347126, *4 (Wis. Ct. App. May 24,
2018).
Gilbreath takes issue with the court’s characterization of the
additional impeachment material and other evidence as
“cumulative,” contending that the evidence was actually
corroborative, and maintaining that the court wrongly applied
state rather than federal law in making that judgment. See State
v. Gilbreath, 2018 WL 2347126, *3 (citing State v. McAlister, 911
N.W.2d 77 (Wis. 2018)). Gilbreath objects to this application of
McAlister because that case involved a claim of newly
discovered evidence in the context of a motion for a new trial,
rather than a claim for ineffective assistance of counsel. But the
language he objects to in the court’s opinion is contained in the
No. 20-2638 49
analysis of his state law claim for a new trial in the interest of
justice where the real controversy was not tried. True, the court
of appeals referred back to that analysis when it assessed the
prejudice prong of the Strickland claim, but the court’s point
was subtly different: in the Strickland analysis, the court found
that S.L. had been so thoroughly impeached that additional
impeachment evidence would not likely have affected the
outcome of the trial.
It does not matter whether the additional impeachment
evidence is characterized as cumulative or corroborative;
neither of the state courts found that there was a reasonable
probability that, but for the omission of this evidence, the
result of the proceeding would have been different. Indeed,
counsel managed to place before the jury at least three
different versions of the abuse that S.L. reported to authorities,
social workers and her counselor, using her own words to
demonstrate the inconsistencies. As the post-conviction court
noted, counsel thoroughly succeeded in discrediting S.L.’s
reliability as a witness with the cross-examination on the letter
to her counselor; and counsel reasonably decided that
additional evidence demonstrating unreliability or
untruthfulness would have hurt rather than helped his case.
The court agreed with counsel’s assessment. Gilbreath does not
explain how the conclusion of the state court that there is not
a reasonable probability that the result would have been
altered by this additional evidence results from an
unreasonable application of federal law.
Gilbreath contends, nevertheless, that counsel’s failure to
impeach S.L. on the same points we have already covered
would have caused the jury to reassess her credibility.
50 No. 20-2638
According to Gilbreath, the case was close, and the Wisconsin
court failed to assess the missing evidence in light of the
strengths and weaknesses of the State’s case. Evidence of his
guilt was weak, Gilbreath asserts, and in a close case, the
additional evidence would have made a difference to the
outcome. As we noted above, the post-conviction court also
presided over the original trial, and that judge concluded that
there was no reasonable probability that, but for any error by
counsel, the result would have been different. In our
assessment of prejudice when the same judge presided over
both the trial and the post-conviction hearing, “we cannot
accept as conclusive the judge’s statement that the new
evidence would not have made any difference to the outcome
of the case.” Raygoza v. Hulick 474 F.3d 958, 964 (7th Cir. 2007).
Nevertheless, “we naturally give great weight to the judge’s
assessments, particularly on matters relating to the credibility
of the witnesses who appeared.” Id.At base, Gilbreath’s argument is that, in a credibility
contest, counsel must employ scorched-earth tactics in
attacking the credibility of the primary witness. But this
argument gives no consideration to the risks of such a strategy.
As trial counsel was well aware, there are significant down-
sides to attacking a sympathetic young accuser or even being
perceived as attacking her. In this instance, the accuser had
been abandoned by her entire family after disclosing the abuse,
and the courtroom was full of the defendant’s supporters.
Counsel was fully aware of the tensions in the courtroom when
he decided not to call additional witnesses or further impeach
S.L. after he successfully impeached her with her own words
in front of the jury, where she first took ownership of the letter
No. 20-2638 51
to her therapist and then denied that she wrote the most
significant parts of it, including substantial material that
contradicted her testimony at trial on the very issues Gilbreath
asserts were insufficiently challenged. In addition to the
potential upside of the additional evidence, counsel and the
Wisconsin courts noted that there were also significant risks
and downsides, and Gilbreath’s arguments acknowledge none
of those downsides. The judgments of the Wisconsin courts on
prejudice are due deference.
Finally, although Gilbreath faults the Wisconsin court for
failing to consider the additional evidence in the context of the
totality of the evidence before the jury, he fails to consider the
effect of his own testimony as the only witness presented in the
defense case. Gilbreath’s counsel, in attempting to make sense
of the jury’s verdict, remarked that he was stunned by the
verdict:
[W]hat I did in this case didn’t work and it
should’ve. It should’ve based on my eighty to ninety
trials including twenty sexual assault trials on both
sides.
R. 6-15, at 115–16. In the end, counsel concluded, “if you ask
me I’d say I think the jury just said we don’t believe Michael.”
R. 6-15, at 117. Gilbreath fails to take into account that his
testimony was the other half of the credibility contest, and his
own lawyer believed that the jury simply did not believe his
client even though the trial strategy he employed should have
worked based on his extensive trial experience in sexual
assault cases.
52 No. 20-2638
Even if we ourselves were persuaded that Gilbreath had
been prejudiced by his lawyer’s lapses (and again, there were
no significant lapses), “a state court’s determination that a
defendant was not prejudiced by his lawyer’s ineffectiveness
is entitled to great weight in a federal habeas corpus
proceeding.” Price v. Thurmer, 637 F.3d 831, 839 (7th Cir. 2011).
We cannot conclude in the end that the state court’s ruling on
prejudice was the result of an unreasonable application of
clearly established federal law, or was based on an
unreasonable determination of the facts.
III.
In granting the writ, the district court did not defer
sufficiently to counsel and the state courts:
[T]he Strickland standard must be applied with
scrupulous care, lest “intrusive post-trial inquiry”
threaten the integrity of the very adversary process
the right to counsel is meant to serve. Strickland, 466
U.S., at 689–690, 104 S.Ct. 2052. Even under de novo
review, the standard for judging counsel’s
representation is a most deferential one. Unlike a
later reviewing court, the attorney observed the
relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing
counsel, and with the judge. It is “all too tempting”
to “second-guess counsel’s assistance after
conviction or adverse sentence.” Id., at 689, 104 S.Ct.
2052[.]
Richter, 562 U.S. at 105. In this case, experienced counsel
carefully decided when to press forward and when to hold
No. 20-2638 53
back in light of a carefully constructed strategy that took into
consideration everything from the sympathetic nature of the
accuser to the mood in the courtroom. As Van Wagner
perceived the case unfold and reached what he believed was
the “zenith of … the strength of our case,” a “fulcrum point”
that gave his client the best chance for an acquittal, he
consciously resolved not to present the very evidence that
Gilbreath argues he should have presented. We cannot say that
the Wisconsin Court of Appeals unreasonably applied
Strickland when it determined that counsel’s performance was
neither constitutionally deficient nor prejudicial. We therefore
reverse the judgment granting the writ.
REVERSED.