### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 3158

J OHN M YERS

,

Petitioner

‐ Appellee

,

v.

R ON N EAL

, Respondent

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:16

‐ cv

‐ 2023

— James R. Sweeney, II

, Judge

.

____________________

A RGUED M AY 26, 2020

— D ECIDED A UGUST 4, 2020

A MENDED S EPTEMBER 16, 2020

____________________

Before F LAUM

, S CUDDER

, and S T

. E VE

, Circuit Judges

.

S CUDDER

, Circuit Judge

. Indiana University student Jill

Behrman went for a bike ride one morning but never re

‐

turned. The police later found her bicycle less than a mile

from the home of John Myers II, on the north side of Bloom

‐ ington. Two years later a woman named Wendy Owings came

forward confessing to the murder, but the case was reopened

when a hunter came upon Behrman’s remains far from the2 No. 19

‐ 3158

location Owings described. A renewed investigation led the

authorities to Myers, who was eventually charged with the

murder. Six years after Behrman’s disappearance, a jury con

‐

victed him. Multiple Indiana courts a ffi rmed. Myers then

sought relief in federal court, and the district court granted

his application for a writ of habeas corpus, concluding that

Myers’s counsel performed so de fi ciently at trial as to under

‐

mine con fi dence in the jury’s guilty verdict. We reverse.

The district court was right about the performance of My

‐

ers’s trial counsel. It was de fi cient and plainly so in at least

two ways. What leads us to reinstate Myers’s conviction,

though, is the strength of the state’s case against him separate

and apart from those errors. Among the most convincing evi

‐

dence were the many self

‐ incriminating statements that My

‐

ers made to many di ff erent people, like telling his grand

‐

mother that, if the police ever learned what he did, he would

spend the rest of his life in jail. The weight of these statements,

when combined with other evidence, leads us to conclude

that his counsel’s de fi cient performance did not prejudice

him. The proper outcome is to respect the fi nality of Myers’s

conviction in the Indiana courts.

I

A. The Murder and Investigation

Jill Behrman disappeared during a morning bicycle ride

on May 31, 2000. Local authorities and the Bloomington com

‐ munity sprung to action with assistance from volunteer

search groups, neighboring police forces, state authorities,

and eventually the FBI. The police established the timeline of

that morning: Behrman, a skilled cyclist, planned to go for a

ride before starting work at noon at the University’s StudentNo. 19

‐ 3158 3

Recreational Sports Center. She logged o ff her computer at

9:32 a.m. at her parents’ house, which was close to the center

of town. Two people reported seeing Behrman’s bike lying by

the road near farmland northwest of Bloomington at some

point around noon that day. Nobody could locate her,

though.

Initial leads pointed quite literally in di ff erent directions.

Which way Behrman rode her bike that morning was one of

the unsolved questions in the investigation and became a fo

‐

cus of the eventual trial. Everyone agreed that she started her

ride from her parents’ house in Bloomington. Whether she

rode north or south was what ma tt ered. Behrman’s riding

north was important to the theory the state would present at

trial because it placed her near the home of John Myers. But

some early leads suggested that Behrman rode south that

morning. The Appendix contains a map with markings of the

locations pertinent to the case.

Myers lived about a mile from where Behrman’s bike was

found on North Maple Grove. Given this proximity, Bloom

‐ ington Detective Rick Crussen interviewed him on June 28,

2000. Myers stated that he had been on vacation the week of

Behrman’s disappearance. He added that he had been “here

and there” but mainly at home because his plans to take a trip

with his girlfriend Carly Goodman had fallen through. While

checking Myers’s explanations, the authorities learned that

his relationship with Goodman, a high school senior at the

time, ended a few weeks earlier than he had described. Good

‐

man also told the police that she had no plans to go anywhere

with Myers.

In 2002, a woman named Wendy Owings came forward

and confessed to Behrman’s murder. Owings, a Bloomington4 No. 19

‐ 3158

resident, was facing unrelated felony charges when authori

‐

ties interviewed her and asked her whether she knew about

the Behrman disappearance—which by then was widely

known around town. Owings faced up to 86 years’ imprison

‐

ment and believed she could bene fi t by cooperating and con

‐ fessing to the murder. Owings then decided to lie to the po

‐

lice, thinking that falsely admi tt ing to the murder would

mean less jail time. She did so by concocting the story that she

and two friends were driving and using drugs when they ac

‐ cidentally hit Behrman on her bicycle. Owings said that the

collision took place on Harrell Road on Bloomington’s south

side, roughly 20 miles from where Behrman’s bike was found.

To cover up the accident, Owings explained, they loaded Beh

‐

rman’s body into their car, wrapped her in a plastic sheet se

‐

cured with bungee cords, stabbed her, and dumped her body

in Salt Creek. Investigators were able to corroborate some of

Owings’s information: they drained the creek and found a

knife, plastic tarp, and bungee cords. Although Behrman’s

body was not recovered, the police closed the investigation

into her disappearance.

Nearly three years after Behrman’s disappearance, in

March 2003, a father and son hunting in the woods north of

Bloomington came across a human jawbone. The woods were

about 20 miles north of where Behrman’s bike was found. The

authorities and a forensic expert surveyed the scene and col

‐

lected other skeletal remains. They determined based on den

‐

tal records that the remains belonged to Jill Behrman. Recog

‐ nizing her story no longer added up, Owings recanted her

confession and admi tt ed to lying about the murder in hopes

for leniency on other charges.No. 19

‐ 3158 5

The authorities reopened the investigation after Owings’s

recantation, but no meaningful breakthrough occurred until

2004. It was then that Detective Rick Lang turned his focus to

Myers based on unexpected information provided by Myers’s

own family. His grandmother Be tt y Swa ff ard came forward

and told the authorities that Myers had made a series of sus

‐ picious and incriminating comments about Behrman’s disap

‐

pearance. Others also reported incriminating statements My

‐

ers made to them about the case. His former girlfriend, Carly

Goodman, likewise informed the police about a time Myers

took her to the approximate location in the woods where Beh

‐

rman’s remains were later found. These developments led the

state to conclude it had enough evidence to bring charges. In

April 2006 a grand jury indicted Myers for the murder of Jill

Behrman.

B. The Trial

1. Opening Statements

Trial began on October 16, 2006. In its opening statements,

the prosecution highlighted Myers’s many incriminating

statements, focusing especially on his grandmother who felt

compelled to alert the authorities despite strong feelings of

family loyalty. The state’s theory hinged on Behrman riding

her bike along a northern route on North Maple Grove near

Myers’s home, which the state said they would prove by pre

‐ senting bloodhound scent evidence.

Defense counsel opened by suggesting Myers had an alibi:

the morning that Behrman disappeared, Myers made phone

calls from the landline in his northside home at 9:15, 9:17, 9:18,

10:35, and 10:47 a.m. That timing, defense counsel suggested,

rendered Myers’s involvement impossible if Behrman rode6 No. 19

‐ 3158

her bike not north (in the direction of Myers’s home) but in

‐

stead to the south along Harrell Road. The o ffi cers involved

in the fi rst investigation considered that route possible after

speaking to one of Behrman’s classmates and to Wendy Ow

‐ ings, both of whom said they saw Behrman on that road on

the day she disappeared.

Myers’s counsel also used his opening statement to o ff er

the jury two alternative suspects for the murder. The fi rst was

Wendy Owings, the person who confessed to the murder but

later recanted her story after the police recovered Behrman’s

remains in a di ff erent place than she had identi fi ed. Defense

counsel alternatively sought to place blame on Brian Hollars,

a Bloomington resident who worked with Behrman at the Stu

‐

dent Recreational Sports Center. But in contending that Hol

‐

lars was responsible for Behrman’s murder, defense counsel

made certain misrepresentations. He promised the jury evi

‐

dence that Hollars and Behrman were romantically involved

and were seen fi ghting the day before she disappeared. Coun

‐

sel also represented that a bloodhound followed Behrman’s

scent in the direction of Hollars’s house but that an o ffi cer

stopped the dog before it could reach the front door. All of

those promises rang hollow, as defense counsel never pre

‐

sented any such evidence.

2. The State’s Case Against Myers

The evidence presented during the fi rst few days of trial

focused on how Behrman’s remains were uncovered, identi

‐

fi ed, and analyzed. Then the state presented evidence about

her cycling habits and movements the day she disappeared.

Brian Hollars testi fi ed for the prosecution, described Beh

‐

rman’s work at the recreational center, and o ff ered an alibi byNo. 19

‐ 3158 7

informing the jury that he was at work the day of the disap

‐

pearance. His testimony was not meaningfully challenged.

As the state promised, it presented evidence supporting

its theory that Behrman rode north on North Maple Grove,

near Myers’s home. Foremost, the state presented evidence

showing the location at which Behrman’s bike was found.

Deputy Charles Douthe tt

, who conducted a search with his

bloodhound several days after the disappearance, likewise

testi fi ed that the dog tracked Behrman’s scent along parts of

the northern route. The dog alerted to Behrman’s scent not

only in the general direction of Brian Hollars’s home but also

near the location of her bike and indeed even a touch north in

the direction of Myers’s home. The jury heard no evidence

that the bloodhound tracked Behrman to Hollars’s doorstep

as defense counsel told the jury in his opening statement.

The state’s witnesses also included members of Myers’s

own family. His mother recounted for the jury a time in 2001

when Myers returned from fi shing in the woods and reported

fi nding a “bone” and “panties.” Myers’s aunt Debbie Bell tes

‐

ti fi ed that two months before Behrman’s disappearance, My

‐

ers called asking for help watching his daughter because he

needed time alone. Bell told the jury she remembered Myers

pointing to problems with his girlfriend Carly Goodman and

saying that he “felt like he was a balloon full of hot air ready

to burst.” She also described Myers’s demeanor on the day

Behrman disappeared, recalling that he showed up at his par

‐

ents’ home crying and saying he was leaving town.

Myers’s grandmother Be tt y Swa ff ard testi fi ed despite

what she described as con fl icting feelings of family loyalty.

She told the jury that early on Myers said he was a suspect in

Behrman’s disappearance and was afraid to drive past the8 No. 19

‐ 3158

police roadblocks near his home. She further recounted My

‐

ers’s statements four years later in 2004, when he called and

asked her to take care of his daughter. He explained that he

needed time to himself because he had “a lot of things” to

think about. When Swa ff ard asked what was wrong, Myers

said that “if the authorities knew” what he had done he

would “be in prison for the rest of [his] life.” As he dropped

o ff his daughter, Myers was crying and told his grandmother

that he wished he “wasn’t a bad person” and that he hadn’t

“done these bad things.” Defense counsel did not meaning

‐ fully cross

‐ examine these family members.

The state also presented evidence about Myers’s unusual

behavior around the time of Behrman’s disappearance. The

jury heard, for example, a neighbor explain that Myers had

covered the windows of his trailer and moved his car on the

day Behrman went missing. Myers said he parked elsewhere

so nobody could see he was home.

Nine additional witnesses testi fi ed that Myers brought up

Behrman’s disappearance—sometimes in highly inculpatory

terms—between 2000 and 2006. One of those witnesses was

the husband of Myers’s cousin, who recalled him saying at a

family gathering in late 2001 that he bet Behrman’s body

would be found in the woods.

Another witness, Myers’s former coworker Dean Alexan

‐

der, told the jury that while out on a furniture delivery, Myers

asked him if he had heard about the Behrman case. Myers

proceeded to point out where Behrman’s bike was found and

said that he had been questioned by police a couple of times

because he lived close by. Alexander also told the jury that

Myers then went further and, while driving north, gestured

out the window and said, “if he was ever going to hide a body,No. 19

‐ 3158 9

he would hide it up this way in a wooded area.” The state also

called Kanya Bailey, a former girlfriend of Myers, who said

that in 2000 or 2001, he pointed to the spot where Behrman’s

bike was found and told her that he was the one who found it.

The state presented further testimony from John Roell,

who was in jail for a pe tt y o ff ense and shared a cell with My

‐

ers for two days in May 2005. Roell recounted for the jury cer

‐

tain statements Myers made about Behrman. More speci fi

‐ cally, Roell came forward to authorities to report that Myers

brought up the Behrman case and mentioned her bicycle three

or four times. Roell described how Myers paced nervously

about the cell, appeared to be angry, once referred to a

woman—who Roell believed was Behrman—as a “bitch,” and

said that “if she wouldn’t have said anything, this probably

. . . none of this would have happened.”

Myers’s former girlfriend Carly Goodman also testi fi ed

for the prosecution and told the jury about the time in March

2000 when Myers drove her to a clearing in the woods north

of Bloomington. Six years later, Detective Lang drove her back

to the same general area and, without prompting, Goodman

stated that she recognized the area as the location where My

‐

ers had taken her before. That area was less than one mile

from where the Morgan County hunter found Behrman’s re

‐

mains. On cross

‐ examination Goodman acknowledged that

she had li tt le explanation for how she recognized that clearing

compared to any other.

Additional evidence supporting the prosecution’s theory

came from pathologist Stephen Raden tz

. He testi fi ed that Beh

‐

rman had been killed by a shotgun wound to the back of the

head. He also opined that the physical evidence surrounding

the scene, including the failure to locate any clothing, led him10 No. 19

‐ 3158

to conclude that Behrman was raped before she was mur

‐

dered.

A fi rearms expert also testi fi ed and explained that the

murder weapon, which was never recovered, likely was a 12

‐

gauge shotgun. The state presented testimony from Myers’s

brother, who explained that he kept a 12

‐ gauge shotgun at his

parents’ house but noticed the gun was missing when he

moved home for a month in June 2000.

3. The Defense Case

The defense called only two witnesses. The fi rst was Gary

Dunn, the FBI investigator who led the initial inquiry into

Behrman’s death and considered seriously the possibility that

she had biked along a southern route away from Myers’s

home. After Dunn stepped down, defense counsel admi tt ed

being unprepared to call their next witness because they

“didn’t anticipate having to put on [their] case this early”—

the state had rested its case earlier than the trial schedule an

‐ ticipated.

Jason Fajt, an o ffi cer responsible for processing physical

evidence in the case, also testi fi ed. Fajt presented books about

pregnancy and reproductive health found in Behrman’s bed

‐

room, presumably to bolster the defense’s theory that Beh

‐

rman had a relationship with Brian Hollars and became preg

‐

nant with his child. Fajt also showed the jury the tarp, knife,

and bungee cords found in Salt Creek that were consistent

with the confession that Wendy Owings later recanted.

4. Closing Arguments

The state used its summation to argue that the trial evi

‐

dence exposed two of Myers’s obsessions: his ex

‐ girlfriend

Carly Goodman and Behrman’s bicycle. The prosecutorNo. 19

‐ 3158 11

reminded the jury of the many witnesses who described My

‐

ers’s statements about Behrman’s bike. The state likewise em

‐ phasized Myers’s statements to his grandmother and aunt,

urging the jury to see them as confessions to the murder.

The state also described Myers’s activities the morning of

the murder, painting his calls to various parks and drive

‐ in

movies as a “last

‐ ditch e ff ort to get [his girlfriend] Carly back”

and explaining that he was “trying to get control back” over

her. The state connected the two apparent obsessions by es

‐ tablishing a motive: Myers wanted to control Goodman but

could not, so instead he took Behrman, who was merely in the

wrong place at the wrong time, to the same clearing in the

woods where he had driven Goodman. Based on the evi

‐

dence, the state argued, Myers’s need to control women mo

‐

tivated what Dr. Raden tz called a “classic rape homicide.”

On the defense side, Myers’s counsel followed up with a

watered

‐ down version of his original theory, since much of it

had been discredited during trial. Defense counsel reempha

‐

sized Myers’s alibi and that the evidence about which way

Behrman rode was a wash. He touched on the Wendy Owings

theory and posited that the physical evidence did not rule out

a stabbing.

When it came to Brian Hollars, counsel shied away from

his original theory. He still suggested that Behrman might

have been murdered because she was pregnant, a theory he

gleaned from books about the topic and contraception found

in her bedroom. But counsel said that the person responsible

for the murder could have been Hollars “or maybe it was an

‐

other man entirely.” The defense also noted that Myers had

no clear motive for the murder and stressed the lack of phys

‐

ical evidence connecting him to it.12 No. 19

‐ 3158

The jury deliberated for less than two hours and returned

a guilty verdict. The trial court later sentenced Myers to 65

years’ imprisonment. The Indiana Court of Appeals a ffi rmed

Myers’s conviction and sentence on direct review. See Myers

v. State

, 887 N.E.2d 170 (Ind. Ct. App. 2008). The Indiana Su

‐

preme Court then declined review. See Myers v. State

, 898

N.E.2d 1228 (Ind. 2008) (unpublished table decision).

C. Requests for Postconviction Relief in State Court

Myers began his quest for postconviction relief by fi ling a

petition in the trial court alleging that his counsel had per

‐

formed so ine ff ectively at trial as to violate the Sixth Amend

‐

ment. To support his petition, Myers pointed to an order of

the Indiana Supreme Court fi nding that defense counsel, Pat

‐

rick Baker, had engaged in professional misconduct during

the trial, and suspending his license to practice for six months.

See In re Baker

, 955 N.E.2d 729 (Ind. 2011). The Indiana Su

‐

preme Court found that Baker breached his ethical duties not

only by making false promises to the jury during his opening

statement, but also by improperly soliciting Myers as a client

and then falsely promising to represent him free of charge.

While Myers alleged multiple instances of ine ff ective as

‐

sistance in his state postconviction petition, three speci fi c er

‐

rors came to form the focus of his request for relief:

1. False promises : Counsel’s broken promises to

the jury in his opening statement destroyed

his credibility and left jurors confused about

his theory of defense.

2. Bloodhound evidence : Counsel’s failure to ob

‐ ject to unreliable bloodhound evidence al

‐

lowed the jury to conclude that BehrmanNo. 19

‐ 3158 13

traveled near Myers’s home, providing him

the opportunity to commit the murder.

3. Rape testimony : Counsel failed to object to Dr.

Raden tz ’s testimony that the circumstances

around Behrman’s murder suggested she

was raped. And that testimony allowed the

jury to fi nd a sexual assault motive, which

was unfounded and resulted in severe prej

‐

udice.

The Indiana trial court denied relief. It noted that defense

counsel did make misrepresentations during his opening

statement but said that they did not a ff ect the trial’s outcome

because the judge instructed the jurors not to base their deci

‐

sion on the statements and arguments of counsel. The trial

court also rejected all of Myers’s other contentions that his

counsel performed de fi ciently at trial.

The Indiana Court of Appeals a ffi rmed the denial of post

‐

conviction relief. See Myers v. State

, 33 N.E.3d 1077 (Ind. Ct.

App. 2015). The court evaluated Myers’s three primary con

‐

tentions of ine ff ective assistance of counsel this way:

1. False promises : The court found de fi cient per

‐

formance because defense counsel knew or

should have known that no evidence sup

‐ ported his contentions that a bloodhound

detected Behrman’s scent at Hollars’s home.

(The court did not address counsel’s false

promise about evidence showing that Hol

‐

lars and Behrman were seen fi ghting the day

before her disappearance.) The false promise

about the bloodhound evidence did not14 No. 19

‐ 3158

result in prejudice, however, as defense

counsel was able to present some evidence

suggesting the possibility that Hollars had a

romantic interest in Behrman. That evi

‐

dence, the court reasoned, came from Beh

‐

rman’s cousin, who testi fi ed that some uni

‐

denti fi ed “older man” had asked Behrman

out on a date.

2. Bloodhound evidence : Though defense counsel

testi fi ed at the postconviction hearing that

he did not remember ever researching the

admissibility of bloodhound evidence, the

court concluded that Myers failed to over

‐

come the presumption that counsel’s choice

not to object to the evidence was strategic.

Finding no de fi cient performance on this

score, the court never reached the prejudice

question.

3. Rape testimony: The court forwent a de fi cient

performance analysis and concluded that

Baker’s failure to object to the testimony

from Dr. Raden tz did not prejudice Myers at

trial. The court determined that counsel suc

‐ cessfully cross

‐ examined Dr. Raden tz and

elicited the acknowledgment that his conclu

‐

sion about rape was not based on any phys

‐

ical evidence from Behrman’s remains.

Before denying relief, the state appellate court paused to

address Myers’s contention that counsel’s errors, when aggre

‐ gated, a ff ected the jury’s decision and thereby amounted to

ine ff ective assistance of counsel. The court underscored itsNo. 19

‐ 3158 15

fi nding that Myers had failed to show even one instance of his

counsel performing de fi ciently in a way that resulted in prej

‐

udice. Without even one error to point to, the court reasoned,

there was nothing to aggregate as part of any cumulative prej

‐

udice analysis.

The Indiana Supreme Court again declined review. See

Myers v. State

, 40 N.E.3d 858 (Ind. 2015) (unpublished table

decision). It was then that Myers sought postconviction relief

in federal court.

D. District Court’s Award of Federal Habeas Relief

In a 146

‐ page opinion, the district court focused much of

its analysis on what it found were three serious errors com

‐

mi tt ed by Myers’s trial counsel: making false promises re

‐ garding the Brian Hollars evidence during opening state

‐

ments, not objecting to the bloodhound evidence, and failing

to preclude Dr. Raden tz ’s testimony about Behrman likely be

‐ ing raped. Myers v. Superintendent, Indiana State Prison

, 410 F.

Supp. 3d 958, 981, 991, 1016 (S.D. Ind. 2019).

Turning to prejudice, the district court determined that the

Indiana Court of Appeals, as the last court to have considered

the merits of Myers’s ine ff ective assistance claim, considered

each allegation of ine ff ective assistance in isolation, rather

than focusing on their cumulative e ff ect. See id

. at 1021–23.

The failure to consider the combined e ff ect of the errors, the

district court concluded, amounted to an unreasonable appli

‐

cation of the clearly established direction the Supreme Court

provided in Strickland v. Washington, 466 U.S. 668 (1984). See

id

.

From there the district court found that “no fairminded ju

‐

rist could conclude that trial counsel’s cumulative errors did16 No. 19

‐ 3158

not meet Strickland ’s prejudice standard.” Myers

, 410

F. Supp. 3d at 1054. The court underscored that, while the

state’s evidence was su ffi cient to convict Myers, “it is far from

a strong case of guilt” and, as a result, “the prejudice caused

by trial counsel’s errors more likely impacted the verdict.” Id

.

at 1034. Indeed, the district court found that the “cumulative

impact of trial counsel’s errors was devastating to Mr. Myers’s

defense.” Id

. at 1050. The court granted habeas relief on that

basis.

II

While this appeal owes some of its complexity to the fed

‐

eral habeas corpus framework, the proper starting point is fa

‐

miliar. To evaluate a claim of ine ff ective assistance of counsel,

we apply the standard the Supreme Court announced in

Strickland v. Washington and ask whether defense counsel’s

performance was de fi cient and resulted in prejudice. 466 U.S.

at 687. The de fi cient performance prong requires that the de

‐

fendant show that his counsel’s errors were so far below the

level of competent representation that it was as though he had

no counsel at all. See id

. On the prejudice prong, the defendant

must show “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would

have been di ff erent.” Id. at 694.

That hill is even steeper for issues that the state court de

‐

cided on the merits. Through its enactment of the Antiterror

‐

ism and E ff ective Death Penalty Act of 1996, Congress has al

‐

lowed a federal court to award habeas relief to those like John

Myers convicted of crimes under state law only if the state

court’s ruling “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court,” or “was based on an unreasonableNo. 19

‐ 3158 17

determination of the facts in light of the evidence presented

in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). This

is no easy task. See Cullen v. Pinholster

, 563 U.S. 170, 181 (2011)

(describing the federal habeas standard as “di ffi cult to meet”

and “highly deferential”). The deferential standard re fl ects

Congress’s decision to require federal courts to a ff ord sub

‐

stantial respect to the interests of comity and fi nality embod

‐

ied in state court judgments of conviction.

By its terms, however, so

‐ called AEDPA deference does

not apply to federal claims that the state court did not address

on the merits. See 28 U.S.C. § 2254(d) (providing that the def

‐

erential standard of review applies to “any claim that was ad

‐ judicated on the merits in [s]tate court proceedings”). When a

state court reaches only one part of Strickland ’s two

‐ pronged

analysis, we review the unaddressed prong de novo

. See Wig

‐ gins v. Smith

, 539 U.S. 510, 534 (2003) (reviewing de novo

whether the defendant was prejudiced for purposes of the

Strickland analysis because the state court did not reach the

issue).

A. De fi cient Performance

We agree with the district court that defense counsel’s per

‐

formance fell short of “the legal profession’s objective stand

‐

ards for reasonably e ff ective representation.” See Anderson v.

Sternes

, 243 F.3d 1049, 1057 (7th Cir. 2001) (citing Strickland

,

466 U.S. at 687–88). We reach that conclusion whether we

evaluate counsel’s performance de novo or by a ff ording the In

‐

diana Court of Appeals’s assessment the deference prescribed

by § 2254(d)(1).

False promises. Defense lawyers often argue for acqui tt als

on the basis that the authorities charged the wrong person.18 No. 19

‐ 3158

Myers’s counsel sought to do just that but went too far. Coun

‐

sel promised to present evidence that Brian Hollars killed

Behrman, even though he had to know he could not follow

through on that promise at trial. No evidence supported the

promises to prove that a bloodhound tracked Behrman’s scent

to Hollars’s home or that Hollars was seen arguing with Beh

‐

rman a day or two before she disappeared. Without such evi

‐

dence, counsel’s promises went unful fi lled. Making false

promises about evidence in an opening statement is a sure fi re

way for defense counsel to harm his credibility with the jury.

See United States ex rel. Hampton v. Leibach

, 347 F.3d 219, 257

(7th Cir. 2003). The state wisely concedes that Myers’s coun

‐

sel’s false promises are indefensible—a clear instance of de fi

‐

cient performance.

Bloodhound evidence. The analysis is not as straightforward

with Myers’s contention that his counsel should have objected

to the testimony that a bloodhound tracked Behrman’s scent

along a northern route and ultimately to the location of where

her bike was found. The prosecution used this evidence to put

Behrman—not just her bike—in north Bloomington, near My

‐

ers’s home. Myers’s counsel may have thought that it was

more di ffi cult to assign blame to Hollars without evidence

pu tt ing Behrman in north Bloomington the morning of her

disappearance.

But the district court was right in its observation that coun

‐

sel so passively allowing the bloodhound evidence all but

guaranteed the jury would not credit Myers’s alibi that he was

at home making telephone calls on a landline for a good part

of the morning when Behrman disappeared. And the district

court was equally correct that, at the very least, defense coun

‐

sel should have investigated the admissibility of bloodhoundNo. 19

‐ 3158 19

evidence and made an informed decision about whether to

seek its exclusion. We, too, are troubled by counsel’s acknowl

‐ edgment at the postconviction hearing that he did not recall

doing anything to assess the admissibility of the bloodhound

evidence. Plain and simple, counsel missed the issue.

In these circumstances, we are inclined to agree with the

district court that counsel’s failure to object amounted to de

‐

fi cient performance and that the Indiana Court of Appeals’s

conclusion to the contrary was unreasonable, as it assumed

without any evidentiary foundation in the record that coun

‐

sel’s failure to object re fl ected a considered and reasonable

strategic decision. See Strickland

, 466 U.S. at 690–91 (“[S]trate

‐ gic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable;

and strategic choices made after less than complete investiga

‐

tion are reasonable precisely to the extent that reasonable pro

‐

fessional judgments support the limitations on investiga

‐

tion.”); Wiggins

, 539 U.S. at 521 (emphasizing the same point).

Rape testimony. Perhaps the starkest example of de fi cient

performance came from counsel’s failure to object to testi

‐

mony stating that the circumstances around the murder were

consistent with Behrman being raped before she was killed.

Dr. Raden tz

, a forensic pathologist, investigated Behrman’s

remains and the scene surrounding their recovery and con

‐

cluded that the cause of death was a “shotgun wound to the

back of the head.” That conclusion alone presented an obsta

‐

cle for Myers’s theory that Wendy Owings’s recanted confes

‐

sion (that she ran over Behrman with her car, stabbed her to

death, and then dumped her body in Salt Creek) was in fact

true. But Dr. Raden tz also testi fi ed that Behrman’s remains20 No. 19

‐ 3158

being found in a remote place without any clothing suggested

that she was raped.

In state postconviction review, the Indiana Court of Ap

‐ peals did not consider whether the failure to object to Dr. Ra

‐

den tz ’s testimony re fl ected de fi cient performance, preferring

instead to take the permissible course of going straight to

Strickland ’s prejudice prong. See Strickland

, 466 U.S. at 697

(“[A] court need not determine whether counsel’s perfor

‐

mance was de fi cient before examining the prejudice su ff ered

by the defendant as a result of the alleged de fi ciencies.”). That

analytical route has a consequence for our review of Myers’s

request for federal habeas relief: we lack any state court de

‐

termination on the de fi cient performance prong to which to

review or defer under § 2254(d)(1). See Quintana v. Chandler

,

723 F.3d 849, 853 (7th Cir. 2013) (“[W]hen a state court makes

the basis for its decision clear, [§] 2254(d) deference applies

only to those issues the state court explicitly addressed.”) (cit

‐ ing Wiggins

, 539 U.S. at 534). Our review therefore proceeds

de novo

.

Having taken our own fresh and thorough look at the trial

record, we conclude without hesitation that defense counsel’s

failure to object to Dr. Raden tz ’s testimony was “outside the

wide range of professionally competent assistance.” Strick

‐

land

, 466 U.S. at 690. Counsel provided no explanation for this

failure, and our role is not to search for one to excuse his de

‐

fi cient performance. See Wiggins

, 539 U.S. at 526–27; Brown v.

Sternes

, 304 F.3d 677, 691 (7th Cir. 2002).

While the Indiana Court of Appeals was right to note that

defense counsel did manage to elicit acknowledgment from

Dr. Raden tz that he could not prove Behrman was raped, the

observation only goes so far. Defense counsel himself wasNo. 19

‐ 3158 21

responsible for provoking the testimony most harmful to My

‐

ers. On direct examination, Dr. Raden tz raised only the possi

‐ bility of a rape

‐ homicide and even then only in passing. But it

was defense counsel’s imprecise and prolonged questioning

on cross

‐ examination that allowed Dr. Raden tz to underscore

his certainty that a rape occurred. Indeed, in response to de

‐

fense counsel’s questions, Dr. Raden tz testi fi ed that he consid

‐

ered the case “a rape homicide and dumping until proven

otherwise.”

Preventing the jury from hearing a word about a rape mo

‐

tive should have been a priority for counsel. Everyone should

agree that the introduction of evidence of sexual violence, es

‐ pecially in a case where a young college student went missing

and later turned up dead, can be prejudicial. See House v. Bell

,

547 U.S. 518, 541 (2006). And in prosecuting Myers, the state

did not use Dr. Raden tz ’s testimony solely to explain where

and how Behrman was murdered. It instead relied on the tes

‐ timony to support its theory of motive: that Myers raped Beh

‐

rman before shooting her as a display of his desire to control

women. Defense counsel should have sought to prevent My

‐

ers from being portrayed as a rapist.

In the end, we agree with the district court that counsel

performed de fi ciently. We turn now to whether any of coun

‐

sel’s errors resulted in substantial prejudice to Myers.

B. Prejudice

Errors are prejudicial when there is a “reasonable proba

‐ bility” that the trial would have come out di ff erently without

them. Strickland

, 466 U.S. at 694; see also Cook v. Foster

, 948

F.3d 896, 908 (7th Cir. 2020) (explaining and applying the

same standard). “A reasonable probability,” the Supreme22 No. 19

‐ 3158

Court has explained, “is a probability su ffi cient to undermine

con fi dence in the outcome.” Strickland

, 466 U.S. at 694. While

the Supreme Court has avoided assigning a numerical proba

‐ bility to the inquiry, it has explained that the likelihood of a

di ff erent result need not be “more likely than not” but none

‐

theless “must be substantial.” Harrington v. Richter

, 562 U.S.

86, 111–12 (2011).

Where, as here, the record shows more than one instance

of de fi cient performance, the Sixth Amendment requires that

we approach the prejudice inquiry by focusing on the cumu

‐

lative e ff ect of trial counsel’s shortcomings. This direction

comes from Strickland itself, where the Supreme Court in

‐

structed courts to “consider the totality of the evidence before

the judge or jury.” 466 U.S. at 695. “Taking the una ff ected

fi ndings as a given, and taking due account of the e ff ect of the

errors on the remaining fi ndings, a court making the preju

‐

dice inquiry must ask if the defendant has met the burden of

showing that the decision reached would reasonably likely

have been di ff erent absent the errors.” Id

. at 696.

We have read Strickland just this way—as mandating a cu

‐

mulative assessment of prejudice—on at least fi ve prior occa

‐

sions. See, e.g.

, Harris v. Thompson

, 698 F.3d 609, 648 (7th Cir.

2012) (“The question is whether counsel’s entire performance

at the hearing prejudiced Harris. By analyzing each de fi ciency

in isolation, the [state] appellate court clearly misapplied the

Strickland prejudice prong.”); Sussman v. Jenkins

, 636 F.3d 329,

360 (7th Cir. 2011) (assessing the “cumulative impact” of

counsel’s two errors); Goodman v. Bertrand

, 467 F.3d 1022, 1030

(7th Cir. 2006) (reversing the district court’s denial of a § 2254

application because the state appellate court unreasonably

applied federal law by “evaluating each error in isolation”No. 19

‐ 3158 23

and not in their totality); Washington v. Smith

, 219 F.3d 620,

634–35 (7th Cir. 2000) (explaining that the Strickland prejudice

inquiry required an assessment of “the totality of the omi tt ed

evidence” and the other evidence presented to the jury); Alva

‐

rez v. Boyd

, 225 F.3d 820, 824 (7th Cir. 2000) (explaining that

the need to analyze errors together because their “synergistic”

e ff ects can make the “whole

. . . greater than the sum of its

parts”).

The Indiana Court of Appeals did not undertake a cumu

‐

lative prejudice inquiry. It instead relied on its assessment of

each individual error in isolation and then reasoned that be

‐

cause no one error met each of Strickland ’s two prongs, a cu

‐

mulative analysis was unnecessary. The court defended its

approach with sparse reasoning: “We have reviewed each of

Myers’ claims of error in detail and concluded that none of

them amount to ine ff ective assistance of counsel.” Myers

, 33

N.E.3d at 1114. It then o ff ered the view that “trial irregulari

‐

ties” cannot be combined to “gain the stature of reversible er

‐

ror.” Id

. (citing Kubsch v. State

, 934 N.E.2d 1138, 1154 (Ind.

2010)). That legal observation is at odds with Strickland itself

and our prior conclusions.

In these circumstances, where the state habeas court has

not conducted a cumulative prejudice analysis, we must un

‐

dertake the inquiry on our own in the fi rst instance. See Good

‐

man

, 467 F.3d at 1030–31 (considering the impact of counsel’s

errors in light of the strength of the other evidence presented

to the jury de novo and therefore without deference to the state

court’s fi ndings).

It is here that we part ways with the district court. In eval

‐ uating the state’s evidence against Myers, assessing defense

counsel’s errors, and projecting how the trial may have24 No. 19

‐ 3158

proceeded di ff erently absent those errors, the district court

found itself lacking con fi dence in the jury’s guilty verdict. The

court emphasized the absence of physical evidence linking

Myers to the murder and, even more generally, any proof of

a prior connection between him and Behrman. And, as the

district court saw it, the absence of such proof is what made

Dr. Raden tz ’s rape testimony so prejudicial to Myers, for it al

‐

lowed the jury to assign a motive to what otherwise appeared

an implausible crime. So, too, did the district court fi nd that

Myers su ff ered substantial prejudice when his counsel made

no meaningful e ff ort to show that Behrman rode her bike

south (not north toward Myers’s home) the morning she dis

‐ appeared. That evidence would have been di ffi cult for the

prosecution to overcome, given the landline telephone rec

‐

ords showing that Myers was home making calls that morn

‐ ing. And that point is why, in the district court’s view, the

bloodhound scent evidence ma tt ered: it put Behrman close to

Myers’s home and doomed his alibi.

We see the evidence di ff erently. Far from weak, the prose

‐

cution presented substantial evidence of Myers’s guilt. The

district court failed to appreciate that, when taken together,

the evidence of Myers’s guilt overwhelmed any prejudicial ef

‐

fect of defense counsel’s failings. The weight of the state’s case

against Myers prevents him from showing that he su ff ered

substantial prejudice from his trial counsel’s errors. See Strick

‐

land

, 466 U.S. at 696 (“[A] verdict or conclusion only weakly

supported by the record is more likely to have been a ff ected

by errors than one with overwhelming record support.”);

Cook

, 948 F.3d at 909 (emphasizing the same point).

To be sure, counsel’s de fi cient performance undoubtedly

had some impact on the trial. The most troubling aspect ofNo. 19

‐ 3158 25

counsel’s de fi cient performance—failing to object to Dr. Ra

‐

den tz ’s testimony that Behrman was raped before she was

murdered—allowed the state to supply the jury with a theory

of motive. The state made the point as plain as day in its clos

‐ ing argument: “You know the motive in this crime is clear

. . . when Doctor Raden tz told you that this was a classic rape

murder. Rape is a crime of control. Rape is not a sex crime. It

is pure and simple control over another human being and

dominating them.” The state used Dr. Raden tz ’s opinion to

underscore the narrative that Myers, while reeling from his

breakup with Carly Goodman, had a need to control people,

especially women.

But even without the testimony about rape, the state

painted that picture about Myers through other means. The

jury heard testimony showing that Myers lost his girlfriend,

Carly Goodman, and had no luck trying to restore the rela

‐ tionship, including by unexpectedly showing up at her senior

class trip and trying to join her at an amusement park in Lou

‐

isville before being turned away. The jury also heard from

John Roell, who shared a cell with Myers in May 2005, that

Myers spoke about Behrman using degrading language and

saying that nothing had to happen to her if she would not

have said anything—statements evincing Myers’s a tt empt to

exert control over her. With all of this evidence, the state por

‐ trayed a defendant who lost control of one relationship and

commi tt ed a horri fi c crime as part of trying to exercise control

over a young woman of a similar age.

As for counsel’s false promises during his opening state

‐

ment, we do not doubt that those damaged the theory of de

‐

fense that Brian Hollars commi tt ed the murder. The jury

never heard any testimony about a bloodhound alerting to26 No. 19

‐ 3158

Behrman’s scent near Hollars’s home or any argument be

‐

tween Hollars and Behrman in the days before her disappear

‐

ance.

Counsel’s errors also weakened Myers’s alternate theory

that Wendy Owings commi tt ed the murder. Recall that when

she confessed, Owings said that she hit Behrman on Harrell

Road on the south side of Bloomington. But by not objecting

to the bloodhound evidence, counsel let the state provide sup

‐

port for its theory that Behrman rode her bike in the opposite

direction the morning she went missing, making Owings’s in

‐

volvement seem implausible, especially given the recanted

and admi tt edly false confession.

In evaluating the whole trial picture, however, it becomes

clear that the viability of the Hollars and Owings theories was

signi fi cantly undermined for reasons other than counsel’s

mistakes. The Owings theory depended on Behrman riding

south, but apart from the bloodhound scent testimony, the

jury heard evidence that she rode in the opposite direction.

Remember that Behrman’s bike was found along North Ma

‐ ple Grove, less than a mile from Myers’s home. Nothing about

the bloodhound scent testimony changed that evidentiary ob

‐

stacle for Myers. And from the outset, Hollars was not a seri

‐

ous suspect in the case. Indeed, the jury learned that the au

‐

thorities initially considered Hollars due only to the admoni

‐

tions from a psychic in Michigan.

Much more signi fi cant, the state called both Hollars and

Owings to testify at trial. Owings explained in detail the pres

‐

sure she felt from investigators and her own defense a tt orney

to cooperate and confess to murdering Behrman since she was

facing signi fi cant time on other charges. She also described

how she formulated the fake story, in part by relying on herNo. 19

‐ 3158 27

childhood experiences swimming and fi shing in Salt Creek.

For his part, Hollars denied any involvement in Behrman’s

disappearance, described the very limited interactions he had

with Behrman during her work at the Indiana University rec

‐

reation center, and explained that he was at work on the cam

‐

pus the morning she disappeared.

Simply put, Myers could not compete with the testimony

the prosecution presented from Owings and Hollars—evi

‐

dence presented almost certainly to prove to the jury that the

state had charged the right person with Behrman’s murder.

The testimony from Owings and Hollars diminished the

strength of Myers’s defense to a much greater extent than any

prejudice that independently followed from counsel’s failure

to object to the bloodhound scent evidence or misleading

opening statement.

So, while we are quick to acknowledge counsel’s errors,

we are con fi dent that the defense theories that they impacted

were su ffi ciently undermined, if not overwhelmed, by evi

‐

dence presented at trial. Any impact from those errors on the

jury’s verdict pales in comparison to the strength of the evi

‐

dence the state presented against Myers:

 Behrman’s bike was found less than a mile

from Myers’s home;

 The very day Behrman went missing, Myers

was seen crying and took steps to cover his

windows with blankets and move his car to

prevent anyone from knowing he was home;

 Myers took his girlfriend to the approximate

location in the Morgan County woods where28 No. 19

‐ 3158

a hunter later came upon Behrman’s re

‐

mains;

 Myers had access to a 12

‐ gauge shotgun like

the one that the experts opined was used in

Behrman’s murder; and

 Myers made multiple self

‐ incriminating

statements to many di ff erent people, with at

least one of those statements being tanta

‐

mount to confessing to commi tt ing the mur

‐

der.

The last point bears especially signi fi cant weight. The in

‐ criminating statements Myers made to so many di ff erent peo

‐ ple following Behrman’s disappearance make all the di ff er

‐

ence in determining whether defense counsel’s errors sub

‐ stantially a ff ected the outcome of the trial. During an inter

‐

view with the investigators in 2005, he insisted that had not

discussed the Behrman case with anyone except law enforce

‐

ment—a position at extreme odds with much of the other tes

‐ timony that the jury heard. See United States v. Rajewski

, 526

F.2d 149, 158 (7th Cir. 1975) (“It is well se tt led that untrue ex

‐ culpatory statements may be considered as circumstantial ev

‐

idence of the defendant’s consciousness of guilt.”). Myers put

himself front and center in the murder, conveying to many

people an obsession with Behrman’s disappearance and

death and thereby thwarting a meaningful chance of a suc

‐

cessful defense at trial.

The list is long, so we will recap just a few of the most re

‐ vealing and inculpatory statements that Myers made. Just af

‐

ter Behrman went missing, Myers called his grandmother

Be tt y Swa ff ard and asked for $200, telling her that he was aNo. 19

‐ 3158 29

suspect in the case. Around the same time, he showed up at

his parents’ home crying and said he was leaving town and

never coming back.

Swa ff ard’s full testimony was devastating for Myers. She

told the jury that in 2004 her grandson called her and said that

he had “a lot of things [he] need[ed] to think about.” He then

went further and told her that if the authorities knew about

the things on his mind he would “be in prison for the rest of

[his] life.” Later that night when he dropped his daughter o ff

at Swa ff ard’s house, he cried and told her that he wished he

“hadn’t done these bad things.” Swa ff ard heard these state

‐

ments as relating exclusively to Behrman, and, despite feel

‐ ings of deep

‐ seated family loyalty, felt compelled to come for

‐

ward and share the information with the authorities.

Remember too that after Behrman’s disappearance, Myers

told his mother that he had been fi shing in a creek in the

woods and came upon a “bone” and “panties.” He likewise

told his cousin’s husband (before the authorities recovered

Behrman’s remains) that he bet the police would fi nd Beh

‐

rman’s body in the woods.

Aside from these statements to family members, the jury

heard from an array of friends, acquaintances, and commu

‐ nity members recalling similar comments. For example, My

‐

ers spoke frequently of the Behrman case and even aggran

‐

dized his role in it, like falsely telling his ex

‐ girlfriend that he

was the one who found Behrman’s bike. Even more, he told

his former coworker Dean Alexander during a discussion

about Behrman that if he was going to hide a body, he would

hide it up north in a wooded area. Myers’s comment fore

‐

shadowed what happened over a year later—Behrman’s re

‐

mains were found in the woods just north of Bloomington.30 No. 19

‐ 3158

And then there was John Roell, Myers’s former cellmate who

told the jurors that Myers brought up Behrman and her bicy

‐

cle repeatedly, called her a “bitch,” and said “if she wouldn’t

have said anything, this probably

. . . none of this would have

happened.”

All of this testimony regarding the unsolicited statements

that Myers made to those around him about Behrman’s dis

‐

appearance and murder went untainted by any of his trial

counsel’s errors and by any measure defeated his defense.

Our examination of the record leaves us of the fi rm con

‐

viction that even without counsel’s errors, the jury would

have reached the same conclusion and found John Myers

guilty of murdering Jill Behrman. Because of the strength of

the evidence presented at trial, our con fi dence in the jury’s

decision is not undermined. See Lee v. Avila

, 871 F.3d 565, 571

(7th Cir. 2017) ( fi nding no prejudice despite de fi cient perfor

‐

mance when “the state’s case was very strong” and made a

di ff erent outcome “not reasonably probable”). Myers has

fallen short of demonstrating what the Supreme Court has

told us is essential to relief rooted in a claim of ine ff ective as

‐

sistance of counsel—that the “likelihood of a di ff erent result

must be substantial.” Richter

, 562 U.S. at 111–12.

We close by noting that the district court, while granting

Myers relief based on the three instances of ineffective assis

‐

tance of counsel analyzed in this opinion, acknowledged but

did not definitively resolve other, lesser alleged instances of

ineffective assistance. Our analysis of the strength of the

state’s evidence forecloses relief based on these other allega

‐

tions of ineffective assistance. But we do remand for the sole

purpose of allowing the district court to address the two

claims Myers advanced under Brady v. Maryland

, 373 U.S. 83No. 19

‐ 3158 31

(1963), in his § 2254 application. The district court reserved

judgment on these claims. Our conclusions regarding the

strength of the state’s evidence may well foreclose relief on

those claims too, but the district court should assess the ques

‐

tion in the first instance as neither party briefed the claims in

this appeal.

We REVERSE the order granting Myers’s petition for a

writ of habeas corpus and REMAND for the sole and limited

purpose of allowing the district court to consider the unre

‐

solved Brady claims identi fi ed above.32 No. 19

‐ 3158

Appendix

1. John Myers’s home

2. Location where Jill Behrman’s bike was found

3. Brian Hollars’s home and location where one resident thought he

saw Behrman cycling

4. Jill Behrman’s home

5. Location where another resident thought she saw Behrman cycling

and where Wendy Owings said she was driving

Not pictured: Jill Behrman’s remains were found about 20 miles north

of Point 2. M a p Source: Indiana State Librar y

, Indiana p olis, IN