In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 22-3059 

KARL W. NICHOLS, 

Petitioner-Appellant, 

v.

LANCE WIERSMA, 

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the

Western District of Wisconsin. 

No. 3:18-cv-00829-wmc — William M. Conley, Judge. 

____________________ 

ARGUED DECEMBER 5, 2023 — DECIDED JULY 16, 2024

____________________ 

Before HAMILTON, BRENNAN, and ST. EVE, Circuit Judges. 

HAMILTON, Circuit Judge. Petitioner-appellant Karl Nichols 

was convicted in a Wisconsin state court of first-degree sexual 

assault and sentenced to five years of probation. He appeals 

the denial of his federal petition for a writ of habeas corpus 

challenging that conviction. Nichols contends the prosecution 

failed to preserve exculpatory evidence. The child-victim had 

prepared notes between her first and second forensic interviews identifying some corrections and clarifications she 
2 No. 22-3059 

wanted to make about what she had said in the first interview. 

Those notes disappeared, without explanation, from the prosecution’s control. Nichols also contends that his trial counsel 

was ineffective for failing to raise the issue of the notes ahead 

of trial.

Nichols originally won relief after a post-trial hearing in 

the state trial court, but the Wisconsin Court of Appeals 

reversed and upheld the conviction. When Nichols then 

turned to the federal courts under 28 U.S.C. § 2254, the district 

court denied relief, relying on the deferential standard of 

review in section 2254(d) to deny relief on the due process 

theory and on procedural default on the ineffective assistance 

claim. We affirm. 

I. Factual and Procedural Background

The facts of Nichols’ case are drawn from the state-court 

record. Nichols’ family was part of a childcare cooperative 

with other families in Madison, Wisconsin, including the 

family of the child in question (“M.R.W.”). Nichols’ son and 

M.R.W. had play dates at Nichols’ house from the time the 

children were approximately three years old until M.R.W.’s 

family moved to Kansas in 2010. In September 2011, when 

M.R.W. was ten years old, she told her mother that Nichols 

had touched her vagina during one sleepover at Nichols’ 

house years earlier when they had lived in Madison.

M.R.W. participated in two videotaped interviews in 

Kansas, in September and December 2011. In the first 

interview, conducted by Jane Holzrichter, the director of a 

child advocacy center in Kansas, M.R.W. reported that she 

would have sleepovers at Nichols’ house and that she and 

Nichols’ son would wrestle with Nichols while they were 
No. 22-3059 3

wearing little or no clothing. She said she would take her 

clothes off because she was hot and that Nichols encouraged 

her to do so. M.R.W. recounted one time when she was four 

or five years old when Nichols felt around the inside and 

outside of her vagina with his hands. During a sleepover, she 

could not sleep, went upstairs where she saw Nichols, and sat 

with him on a chair. She reported that Nichols told her that 

he “wonder[ed] what it was like having a vagina because he 

didn’t have a vagina” and asked her if he could touch her. She 

let him do so because, being so young, she did not think there 

was anything wrong with it. M.R.W. told Holzrichter that was 

the only time that Nichols intentionally touched her vagina, 

but there was one other occasion when he incidentally 

touched her unclothed vagina during a sponge bath. She 

admitted that it was hard for her to remember everything 

clearly after so long, and that many of her memories blended 

together.

After reviewing the video of the first interview, a 

prosecutor in Madison, Wisconsin, asked Holzrichter to 

conduct a second interview in which a Madison police 

detective could participate. Holzrichter agreed, and Detective 

Justine Harris participated in the second interview by 

telephone. During the second interview, M.R.W. told 

Holzrichter that she had watched a recording of her first 

interview. In the second interview, M.R.W. went into more 

detail about what happened during the touching incident.

After providing more details, M.R.W. said again that Nichols 

touched her vagina inside and out with his hands. She also 

said again that she could not recall the incidents perfectly, but 

she assured Holzrichter that everything she said in the second 

interview was true to the best of her recollection.
4 No. 22-3059 

Nichols’ constitutional claims in this habeas case focus on 

the end of the second interview. Holzrichter asked M.R.W. 

about a pad of paper that she had been holding throughout 

the interview: “Q: [D]id you write some things down that you 

were wondering about or did you write it down for someone? 

A: I wrote down some things that I think I, I changed from the 

last interview.” One correction listed on M.R.W.’s pad of paper was discussed briefly. She told Holzrichter that Nichols 

did not suggest that she should take off her clothes when they 

were wrestling, just that Nichols did not object when she 

would do so. Holzrichter indicated her belief that M.R.W. had 

in fact already said the same thing in the first interview. 

Holzrichter then asked M.R.W. if she felt that it was her fault 

that she “didn’t object to any of this.” M.R.W. said she did, 

but that she felt better after she had talked to her therapist 

about it.

After this exchange, Holzrichter stood up, walked toward 

the door, and indicated that M.R.W. should say goodbye to 

Detective Harris on the telephone. M.R.W. stood up with her 

pad of paper, followed Holzrichter, and raising her pad of paper, said, “First can I tell you, um, the rest of this?” Continuing to walk out of the room, Holzrichter responded, “Sure. We 

can do that and then I’m going to take a copy of it so that they 

can have it, too.” At that point, the recording of the interview 

ended.

In March 2012, the State of Wisconsin charged Nichols 

with first-degree sexual assault of a child based on the touching incident that occurred in 2005 when M.R.W. was four 

years old. A jury trial was held in November 2013. M.R.W. 

testified. Important for our analysis here, the jury also 

watched recordings of both interviews and received 
No. 22-3059 5

transcripts of both. Nichols was convicted of the charged offense and was sentenced to five years of probation.

In May 2015, Nichols filed a postconviction motion 

arguing that the prosecution had failed to preserve 

exculpatory evidence—the handwritten list of changes 

between interviews—in violation of his right to due process 

of law, and that his counsel was ineffective for failing to raise 

that issue before trial. The state trial court held an evidentiary 

hearing on Nichols’ postconviction motion. Before the 

hearing, the prosecution determined that the notes could not 

be located. 

The state trial court granted Nichols’ motion. The court 

found that the list was not preserved by the prosecution and 

that it contained additional exculpatory evidence. The court 

also found that the prosecution acted in bad faith because it 

did not seek out and turn over the list to the defense. The trial 

court reasoned that Holzrichter concealed the list by ending 

the interview without discussing it and by not providing it to 

the authorities, and that Detective Harris acted in bad faith 

when she produced a police report regarding the interview 

saying that M.R.W. had only one correction. The court 

concluded that the list could not be reliably re-created, and it 

determined that the appropriate remedy was to vacate the 

conviction and dismiss the case with prejudice. The court also 

concluded that trial counsel was ineffective for failing to seek 

out the list or to move for dismissal if it could not be found, 

but because the court had ordered dismissal with prejudice 

on due process grounds, the ineffective assistance claim was 

moot.

The State appealed to the Wisconsin Court of Appeals, 

which reversed and remanded. The appellate court 
6 No. 22-3059 

concluded that the trial court should have rejected Nichols’ 

ineffective assistance and due process claims because he 

failed to show that M.R.W.’s missing list had any exculpatory 

value. Nichols sought review in the Wisconsin Supreme 

Court, but that court denied his petition.

Nichols then filed this habeas corpus petition in the Western District of Wisconsin in October 2018.1 The district court 

denied Nichols’ petition. Nichols v. Wiersma, No. 3:18-cv-829-

WMC, 2022 WL 9979743, at *1 (W.D. Wisc. Oct. 17, 2022). It 

first found that his ineffective assistance of counsel claim was 

procedurally defaulted because he failed to include that issue 

in his petition for review by the Wisconsin Supreme Court. 

On the underlying due process claim, the district court found 

that the state appellate court’s decision was a reasonable application of case law from the Supreme Court of the United 

States on the prosecution’s duty to preserve exculpatory evidence, “which is as far as a federal court can inquire as part of 

a habeas review.” Id. at *5. Nichols has appealed.

II. Analysis

A. Standards of Review

Under the Antiterrorism and Effective Death Penalty Act 

of 1996, a federal court may not issue a writ of habeas corpus 

on a claim rejected on the merits in state court unless the petitioner surmounts high obstacles. To obtain federal relief on 

a claim that state courts rejected on the merits, the state court 

decision must have been “contrary to, or involved an 

1 Nichols completed his five-year probation sentence while his federal 

habeas petition was pending. He still satisfies the “in custody” requirement of 28 U.S.C. § 2254 because he was in custody when the petition was 

filed. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). 
No. 22-3059 7

unreasonable application of, clearly established Federal law, 

as determined by the Supreme Court,” or “based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). A 

federal court considering a habeas petition “reviews the specific reasons given by the state court and defers to those reasons if they are reasonable.” Wilson v. Sellers, 584 U.S. 122, 125 

(2018). Federal courts consider only “the decision of the last 

state court to rule on the merits” of the claim. Stern v. Meisner, 

812 F.3d 606, 609 (7th Cir. 2016) (internal quotation omitted); 

accord, Wilson, 584 U.S. at 129–32. That decision here is the 

decision of the Wisconsin Court of Appeals. “When reviewing 

a district court’s ruling on a habeas corpus petition,” this 

court reviews “the district court’s factual findings for clear error and rulings on issues of law de novo.” Id. 

Under the first prong of section 2254(d), a decision is contrary to clearly established federal law “if it applies a rule that 

contradicts the governing law set forth” in Supreme Court decisions or “confronts a set of facts that is materially indistinguishable from” a Supreme Court decision but comes out differently. Brown v. Payton, 544 U.S. 133, 141 (2005). An “unreasonable” application of clearly established federal law must 

be “objectively unreasonable, not merely wrong; even clear 

error will not suffice.” White v. Woodall, 572 U.S. 415, 419 

(2014) (internal quotation omitted). The petitioner must show 

that the state court’s decision involved an error “well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 

U.S. 86, 103 (2011). 

Another obstacle to federal relief concerns the state court’s 

factual findings. A state court’s factual findings receive 

deference if “[r]easonable minds reviewing the record might 
8 No. 22-3059 

disagree about the finding in question.” Brumfield v. Cain, 576 

U.S. 305, 314 (2015) (internal quotation omitted); accord, e.g., 

Dassey v. Dittmann, 877 F.3d 297, 302–03 (7th Cir. 2017) 

(en banc). To succeed under the factual prong of section 

2254(d), the petitioner must show by clear and convincing 

evidence that the factual findings were unreasonable. See 28 

U.S.C. § 2254(e)(1). 

B. The Duty to Preserve Exculpatory Evidence

The general principles regarding the prosecution’s duty to 

preserve exculpatory evidence are well-established. “The 

Supreme Court’s decisions in Trombetta and Youngblood

govern a state’s duty under the Due Process Clause of the 

Fourteenth Amendment to preserve evidence on behalf of a 

defendant.” McCarthy v. Pollard, 656 F.3d 478, 484 (7th Cir. 

2011), citing California v. Trombetta, 467 U.S. 479, 488–89 (1984), 

and Arizona v. Youngblood, 488 U.S. 51, 58 (1988). The 

prosecution’s duty is to “preserve potentially exculpatory 

evidence on behalf of defendants.” Trombetta, 467 U.S. at 481. 

This duty extends to impeachment evidence as well. Trombetta

itself analyzed whether the state had a duty to preserve 

Intoxilyzer breath samples that defendants would use to 

“impeach the machine’s reliability.” 467 U.S. at 490. The 

Supreme Court’s reasoning extending Brady’s duty of 

disclosure to material impeachment evidence applies to 

Youngblood’s duty to preserve. As the Court explained in 

United States v. Bagley, 473 U.S. 667 (1985), “[i]mpeachment

evidence ... as well as exculpatory evidence, falls within the 

Brady rule,” id. at 676, citing Giglio v. United States, 405 U.S. 

150, 154 (1972), because “[s]uch evidence is ‘evidence 

favorable to an accused’ so that, if disclosed and used 

effectively, it may make the difference between conviction 
No. 22-3059 9

and acquittal.” Id., quoting Brady v. Maryland, 373 U.S. 83, 87 

(1963). An alternative rule excluding impeachment evidence 

from the scope of Youngblood’s duty to preserve would make 

little sense—prosecutors could then effectively throw away 

impeachment evidence that they would otherwise have a 

Brady duty to disclose. 

In light of this well-established duty to preserve material 

exculpatory evidence, including impeachment evidence, it is 

difficult to fathom the loss of the child’s notes in this case. It 

is also difficult to fathom the interviewer’s response after the 

child’s question, “First, can I tell you the rest of this?” The interviewer said “Sure,” and then apparently turned off the recording of the interview.

The loss of the notes does not necessarily lead to habeas 

relief, however, particularly given the deference that state 

courts receive on federal habeas review. “The state’s duty to 

preserve exculpatory evidence is limited to evidence that 

‘might be expected to play a significant role in the suspect’s 

defense.’” State v. Hahn, 132 Wis. 2d 351, 358, 392 N.W.2d 464, 

467 (Wis. App. 1986), quoting State v. Oinas, 125 Wis. 2d 487, 

490, 373 N.W.2d 463, 465 (Wis. App. 1985), citing in turn 

Trombetta, 467 U.S. at 488–89. In other words, the prosecution 

must preserve only “material” exculpatory evidence, and 

evidence is material if there is a “reasonable probability” that, 

if it had been preserved and disclosed to the defendant, “the 

result of the proceeding would have been different.” United 

States v. Salem, 578 F.3d 682, 686 (7th Cir. 2009), quoting 

Youngblood, 547 U.S. at 870. 

“Over the years, courts have fashioned different 

interpretations of the collective meaning” of Trombetta and 

Youngblood, and this court’s interpretation of those two cases 
10 No. 22-3059 

“differs from that of Wisconsin courts.” McCarthy, 656 F.3d at 

484. In particular, we have differed as to how obvious the 

exculpatory value of the evidence in question must be to 

trigger the prosecution’s duty to preserve it:

According to Wisconsin courts, these cases 

stand for the proposition that a defendant’s due 

process rights are violated if the police (1) failed 

to preserve “apparently” exculpatory evidence, 

leaving the defendant with no ability to obtain 

comparable evidence by any other reasonable 

means (with this portion of rule deriving from 

Trombetta); or (2) failed to preserve “potentially” 

exculpatory evidence in bad faith (with this portion of the rule deriving from Youngblood). See,

e.g., State v. Greenwold, 525 N.W.2d 294, 296–98 

(Wis. Ct. App. 1994). However, according to our 

precedent, Trombetta and Youngblood do not create two separate rules, with the former governing “apparently” exculpatory evidence and the 

latter governing “potentially” exculpatory evidence. We instead read both cases to stand for 

the same proposition: the destruction of potentially exculpatory evidence violates the defendant’s right to due process if (1) the State acted in 

bad faith; (2) the exculpatory value of the evidence was apparent before it was destroyed; 

and (3) the evidence was of such a nature that 

the petitioner was unable to obtain comparable 

evidence by other reasonably available means.

See, e.g., Henry v. Page, 223 F.3d 477, 481 (7th Cir. 

2000) (explaining that Youngblood used the word 

“potentially” to illustrate that the defendant 
No. 22-3059 11

failed the second prong—which requires the evidence’s exculpatory value to be apparent—of 

Trombetta’s test).

Id. at 484–85 (footnote omitted).

In his brief, Nichols sets out the standards of Trombetta and 

Youngblood as elaborated by Wisconsin courts, rather than by 

this circuit. We have written before that it is a “dubious” proposition that the “‘unreasonable application’ prong of the 

AEDPA requires us to accept as correct Wisconsin’s interpretation of Trombetta and Youngblood.” McCarthy, 656 F.3d at 485. 

In this case, the district court applied this circuit’s standards 

to determine whether the Wisconsin Court of Appeals reasonably applied Trombetta and Youngblood. 

To the extent state courts and lower federal courts 

interpret the Supreme Court’s constitutional precedents 

differently, the differences should not affect decisions under 

section 2254(d). The statute makes the decisions of the 

Supreme Court of the United States the ultimate touchstone. 

Lower federal courts may not grant habeas relief simply 

because they read those decisions differently than state courts 

do. Regardless of which rule applies, the Wisconsin Court of 

Appeals reasonably concluded (1) that the list had no 

apparent exculpatory value and (2) that the prosecution’s 

failure to produce the list was not the result of actions taken 

in bad faith. The first finding bars any due process claim 

under this court’s interpretation of the Trombetta/Youngblood

framework. The second bars the alternate path to a due 

process claim under Wisconsin courts’ interpretation and is 

another independent ground for barring the claim under this 

court’s interpretation. We consider each of these two 

conclusions in turn.
12 No. 22-3059 

C. Apparent Exculpatory Value?

1. Reasonable Application of Supreme Court Precedents

Under both this court’s and Wisconsin’s interpretations of 

Youngblood and Trombetta, the prosecution’s duty to preserve 

evidence depends in part on whether the exculpatory value of 

the evidence is apparent. “To be considered ‘apparently’ exculpatory, the exculpatory nature of the evidence must be apparent before it is destroyed. Accordingly, ‘the possibility that 

the evidence could have exculpated the petitioner if preserved 

or tested is not enough to satisfy the standard of constitutional 

materiality in Trombetta.’” McCarthy, 656 F.3d at 485–86, quoting Youngblood, 488 U.S. at 57 n.* (brackets omitted). Here, the 

Wisconsin Court of Appeals held that M.R.W.’s list had no

value, let alone apparent value, to Nichols as either exculpatory evidence or impeachment evidence. We review that conclusion for reasonable application of clearly established Supreme Court precedent. 

Nichols argues that the Wisconsin Court of Appeals 

unreasonably applied governing Supreme Court precedent, 

which he claims contemplates only two categories of 

evidence: “potentially exculpatory” and “apparently 

exculpatory.” In holding that M.R.W.’s list lacked any 

exculpatory value, Nichols argues, the state appellate court 

avoided applying the federally required framework it had 

just laid out and created a new characterization of evidence. 

He calls this a failure to apply the correct legal standard, 

which is “necessarily an unreasonable application” of federal 

law.

We disagree. Nichols has not shown that the state appellate court plainly contradicted the Supreme Court’s 
No. 22-3059 13

governing rule or came to a result different than the Supreme 

Court did on substantially identical facts. Avila v. Richardson, 

751 F.3d 534, 536 (7th Cir. 2014), citing Williams v. Taylor, 529 

U.S. 362, 405–06 (2000). After setting out the correct legal 

standard, and in addition to its statement that the list “lacked 

any exculpatory value,” the state appellate court wrote that 

“Nichols has failed to demonstrate that the list had potentially 

exculpatory value” and that “the exculpatory nature of the list 

was not apparent to the interviewer” or to Detective Harris. 

The state appellate court applied the correct governing federal standards as articulated by Wisconsin courts, making explicit findings with respect to each of Nichols’ two categories. 

As required under this court’s articulation of the standard, 

one of those two express findings by the state appellate court 

was that the exculpatory value of the evidence was not apparent at the time it was lost. See McCarthy, 656 F.3d at 485.

Nichols argues from Supreme Court dicta that even evidence that seems more probably inculpatory than exculpatory must still be categorized and treated as “potentially useful.” See Illinois v. Fisher, 540 U.S. 544, 548 (2004). He thus contends that the state appellate court’s determination that the 

list of corrections was not even “potentially exculpatory” was 

an unreasonable application of governing Supreme Court 

precedent. Again, we disagree. First, under our cases interpreting Trombetta and Youngblood, “apparent” exculpatory 

value is a required element of every due process claim for failure to preserve evidence. McCarthy, 656 F.3d at 485. An erroneous failure to label evidence correctly as “potentially” exculpatory, versus not exculpatory, is harmless. In neither case 

does the evidence have the “apparent” exculpatory value we 

require. 
14 No. 22-3059 

Wisconsin courts, by contrast, interpret Trombetta and 

Youngblood to allow claims for the destruction of “potentially” 

exculpatory evidence if the destruction was the result of actions in bad faith, even if the evidence lacks “apparent” exculpatory value. But “potentially” has its limits. The Constitution 

does not impose on the prosecution “an undifferentiated and 

absolute duty to retain and to preserve all material that might 

be of conceivable evidentiary significance in a particular prosecution.” Youngblood, 488 U.S. at 58. Trombetta makes clear that 

the prosecution has no duty to preserve potentially exculpatory evidence where that evidence has only a tiny chance of 

turning out to be exculpatory once produced. 467 U.S. at 489 

(implying no duty to preserve evidence that is “much more 

likely” to be “inculpatory than exculpatory”). 

Giving the state appellate court’s decision “the benefit of 

the doubt” as we must on habeas review, Woodford v. Visciotti, 

537 U.S. 19, 24 (2002), the statement that the evidence “lacked 

any exculpatory value” means no more than that the court 

thought the chances were “extremely low” that the contents 

of the list would have made a jury more likely to find Nichols 

not guilty, either as exculpatory or impeachment evidence. 

See Trombetta, 467 U.S. at 489. Evidence that is much more 

likely to be inculpatory than exculpatory could reasonably be 

described as “lacking any exculpatory value.” We have used 

similar language in our own cases. See, e.g., United States v. 

Bender, 95 F.4th 507, 512 (7th Cir. 2024), petition for cert. filed, 

No. 23-1878 (June 7, 2024) (“[B]oth Brady and Youngblood require evidence of exculpatory value. [Defendant] cannot meet 

that showing ....”). The state appellate court’s language does 

not, as Nichols argues, imply the erroneous creation of a “new 

category” of exculpatory evidence. 
No. 22-3059 15

In any event, the state appellate court went on to address 

bad faith, a requirement for due process claims involving 

potentially exculpatory evidence under both Wisconsin 

courts’ and this court’s interpretations of Youngblood and

Trombetta. The state appellate court’s finding that the list 

“lacked any exculpatory value” did not change the legal 

standard it applied, rendering harmless any arguably 

incorrect categorization. The Wisconsin Court of Appeals did 

not act unreasonably in applying the Supreme Court’s 

framework in determining that M.R.W.’s list lacked any 

exculpatory value.

2. Reasonable as Findings of Fact

We next consider the reasonableness, as a factual finding, 

of the state appellate court’s conclusion that the list lacked 

apparent exculpatory value.2 Federal habeas courts presume 

that state courts reasonably found the facts, and this rule 

“applies equally to findings of trial courts and appellate 

courts.” Wainwright v. Goode, 464 U.S. 78, 85 (1983). “That 

presumption applies not only to the state court’s express 

factual findings, but also to the implicit resolution of a factual 

2 As noted, this court’s interpretation of Trombetta and Youngblood requires that for any due process claim to succeed, the evidence must have 

had apparent exculpatory value at the time it was lost or destroyed. McCarthy, 656 F.3d at 485. Under Wisconsin’s interpretation, defendants may instead prove that potentially exculpatory evidence was destroyed in bad 

faith, an alternate route we discuss below. Here we address only whether 

the Wisconsin Court of Appeals’ finding of no apparent exculpatory value 

was reasonable. A reasonable finding of no apparent exculpatory value 

means that Nichols’ underlying due process claim fails under this court’s 

precedent and under the “apparently exculpatory” prong of Wisconsin 

precedent. 
16 No. 22-3059 

dispute that can be fairly inferred from the state court record.” 

Armstrong v. Young, 34 F.3d 421, 426 (7th Cir. 1994). 

The state appellate court’s finding was not unreasonable. 

Again, for evidence to be “apparently” exculpatory, “the possibility that the evidence could have exculpated the petitioner 

if preserved or tested is not enough.” McCarthy, 656 F.3d at 

485 (brackets omitted), quoting Youngblood, 488 U.S. at 57 n.*. 

When the “exculpatory character” of missing evidence “is 

only potential,” such that the parties and the court “can only 

guess” about what it might have shown, the evidence is not 

apparently exculpatory. Bender, 95 F.4th at 511. Here, the state 

appellate court reversed the state trial court’s finding of apparent exculpatory value as clearly erroneous, having “no basis in the record.” The appellate court reasoned: “It is not possible for the [state trial] court to know whether the list was 

apparently exculpatory without knowing the contents of the 

list.” We agree. M.R.W.’s corrections could have just as easily 

provided additional inculpatory details regarding Nichols’ 

behavior surrounding the sexual assault. The state appellate 

court’s factual conclusion on this point was not beyond the 

bounds of reason.

We are less persuaded by the state appellate court’s conclusion that the list would have no apparent exculpatory 

value as impeachment evidence. The whole case turned on 

M.R.W.’s credibility. The state trial court explained: “If the 

jury believed M.R.W., [Nichols] would be found guilty. If the 

jury had a reasonable doubt as to whether they should believe 

M.R.W., [Nichols] would be found not guilty.” App. 143. But 

the Wisconsin Court of Appeals overruled as clearly erroneous the state trial court’s factual finding that the list had apparent exculpatory value as impeachment evidence. Instead, 
No. 22-3059 17

the state appellate court concluded, “any corrections in 

M.R.W.’s list would not have risen to the level of being exculpatory evidence.” The list, in other words, could not have 

been used effectively to attack M.R.W.’s credibility. The state 

appellate court wrote: “The only reasonable inference from 

the facts—that M.R.W. had reviewed the first interview before 

participating in the second interview, and that she had a list 

of changes to make of some things she said in that first interview—is that she spoke accurately, truthfully, and consistently with her corrections, in the second interview.” (Emphasis 

added.)

A state court’s “factual determination is not unreasonable 

merely because the federal habeas court would have reached 

a different conclusion in the first instance.” Burt v. Titlow, 571 

U.S. 12, 18 (2013), quoting Wood v. Allen, 558 U.S. 290, 301 

(2010). The state appellate court’s findings of fact and credibility determinations against the petitioner are presumed correct, and the petitioner overcomes that presumption only if he 

proves by clear and convincing evidence that those factual 

findings are wrong. 28 U.S.C. § 2254(e)(1). Here, the state appellate court’s determination of the facts was not so far “outside the boundaries of permissible differences of opinion” as 

to render it objectively unreasonable. See Morgan v. Hardy, 662 

F.3d 790, 800 (7th Cir. 2011) (affirming denial of habeas petition where state court rejected “more plausible” factual account in favor of less plausible but still reasonable account), 

quoting Starkweather v. Smith, 574 F.3d 399, 402 (7th Cir. 2009). 

The state appellate court explained how it reached its conclusions. Neither Nichols nor the state trial court had suggested that the list could have “corrected some fact in 

M.R.W.’s initial interview in a manner supporting the view 
18 No. 22-3059 

that sexual touching did not happen. Indeed, M.R.W.’s consistent, detailed recitation of the facts surrounding that incident in the two interviews and at trial would defeat such a 

proposition.” App. 110. “More specifically, if she was telling 

the truth about the corrections, and through the corrections 

was making sure that what she had said in the first interview 

was accurate, then there is no basis to suspect that her detailed 

description of the touching incident in the second interview 

was not congruent with whatever corrections were on her 

list.” Id. at 111. As the state appellate court reasoned, “if the 

jury believed her statement that she got some things wrong in 

the first interview, they would have believed her more detailed description of the touching incident in the second interview.” Id. 

The court further reasoned that the only example of a correction provided by M.R.W. did not concern the touching incident that formed the basis of the charge against Nichols. 

“[J]urors understand that a witness like M.R.W., years later, 

may have a faulty memory as to some related facts, but would 

clearly recall the dramatic event of an adult male putting his 

fingers into her vagina. And, as to this core event, M.R.W. described it consistently and in detail in both interviews.” App. 

at 112. Nichols did not explain how it could “reasonably be 

inferred that whatever else was on the list would tend to, or 

lead to evidence that would tend to, establish Nichols’[ ] innocence.” Id. 

There are elements of inference bordering on speculation 

in the appellate court’s analysis, as well as in the trial court’s. 

That uncertainty is inherent when potential evidence of unknown content has disappeared. We understand the appellate 

court’s explanation for its decision, and we see how 
No. 22-3059 19

reasonable jurists could arrive at that conclusion in light of 

M.R.W.’s consistent testimony on the core events, and especially in light of the jury’s ability to watch both video interviews and her in-person testimony to the jury. To the extent 

there were conflicts among those three accounts of the relevant events, they were disclosed to the defense and to the jury. 

The defense had an opportunity to use any such conflicts to 

attempt impeachment. The Wisconsin Court of Appeals was 

not unreasonable in finding as a matter of fact that M.R.W.’s 

list was not apparently exculpatory as impeachment evidence. 

D. Bad Faith

Under Wisconsin’s formulation of the Trombetta/Youngblood standard, even where evidence is not apparently exculpatory, a criminal defendant’s due process rights 

can still be violated if the prosecution acts in bad faith to destroy or fails to produce merely “potentially exculpatory” evidence. See McCarthy, 656 F.3d at 484. The Wisconsin trial 

court found bad faith, but the appellate court reversed that 

finding as clearly erroneous. The state appellate court’s factual finding on this point also was not unreasonable.

Bad faith “requires proof of animus or a conscious effort 

to suppress exculpatory evidence and turns on an official’s 

subjective knowledge that the evidence had exculpatory 

value.” Bender, 95 F.4th at 511 (internal quotation omitted). 

Here, the state trial court inferred bad faith on the part of interviewer Holzrichter and Detective Harris. With respect to 

Holzrichter, it held that she must have recognized the exculpatory nature of the list because of the manner in which she 

“hurried to change the subject, leave the room and stop the 

taping” after M.R.W. explained the first item on her list. That 
20 No. 22-3059 

court found it significant that “Holzrichter, acting as an agent 

of the State, cut off the interview before M.R.W. could describe more than one of her corrections,” and that “[t]hrough 

her evasive postconviction testimony, Holzrichter conveniently claimed no memory of anything on the list or anything 

she did with the list.” The state trial court found that these 

“obvious attempts to conceal M.R.W.’s written corrections 

constitute[d] bad faith.” 

As for Detective Harris, the state trial court reasoned that 

she knew “that M.R.W. was allowed to divulge only one of 

her multiple corrections,” but said erroneously in her police 

report about the second interview that M.R.W.’s account was 

“true with one correction.” To the state trial court, it was 

“simply unbelievable” that “Detective Harris’ police report 

coincidentally erred in describing the coincidentally unpreserved evidence.” The state trial court found that Detective 

Harris’ police report also demonstrated bad faith on her part.

The state appellate court reversed both findings of bad 

faith as clearly erroneous. App. 112–13. In holding that the 

trial court’s contrary conclusions lacked any basis in the record, the state appellate court reasoned from two grounds: 

first, its de novo review of the second video interview showing Holzrichter’s behavior after M.R.W. offered the list, and 

second, its assessment that the trial court had not actually 

made a finding as to Detective Harris’ bad faith. We consider 

these in turn. 

As for Holzrichter, the Wisconsin Court of Appeals reviewed the second video interview de novo, concluding “that 

the exculpatory nature of the list was not apparent to the interviewer.” App. at 113. Because “bad faith” requires “an official’s subjective knowledge that the evidence had 
No. 22-3059 21

exculpatory value,” this conclusion effectively reversed the 

state trial court’s factual finding that Holzrichter acted in bad 

faith as clearly erroneous. See Bender, 95 F.4th at 511, quoting 

United States v. Holly, 940 F.3d 995, 1001–02 (7th Cir. 2019). The 

state appellate court based this conclusion on parts of the 

video showing that, “as the interview drew to a close, the interviewer gave M.R.W. several opportunities to ask the interviewer questions and to relate what was on her list, and the 

interviewer continued to be patient with M.R.W. as she related her first correction.” App. at 113. “[I]n response to the 

first correction that M.R.W. related, rather than rush M.R.W. 

out the door, the interviewer further spoke with M.R.W.” Id.

The state appellate court thus concluded that “[t]he video 

simply does not support a reasonable view that the interviewer hurried to change the subject.” Id. The state trial 

court’s “finding that the exculpatory nature of the list was ‘apparent’” to Holzrichter had “no basis in the record.” Id. at 112.

The presumption of correctness that federal habeas courts 

must give to state-court factual findings “applies not only to 

the state court’s express factual findings, but also to the implicit resolution of a factual dispute that can be fairly inferred 

from the state court record.” Armstrong, 34 F.3d at 426. Bad 

faith was a disputed factual issue in the state court record, so 

the Wisconsin Court of Appeals’ review of Holzrichter’s behavior in the second interview is entitled to this presumption 

of correctness. Because Holzrichter stated her intent at the end 

of the second interview to take a copy of the list so that Detective Harris could have it, too, it is at least as plausible to construe Holzrichter’s behavior as innocent rather than as a “conscious effort to suppress exculpatory evidence.” See Bender, 

95 F.4th at 511, quoting Holly, 940 F.3d at 1001. The video is 

subject to different inferences and interpretations, and the 
22 No. 22-3059 

Wisconsin Court of Appeals’ conclusions based on the video 

are not unreasonable. Nichols has not offered contrary evidence or argument sufficient to meet his burden of showing 

their clear error. The state appellate court’s reversal of the 

state trial court’s factual finding of Holzrichter’s bad faith was 

not unreasonable as a finding of fact.

With respect to Detective Harris, the state appellate court 

reasoned that Nichols was wrong to assert that the state trial 

court had “inferred that the exculpatory nature of the list was 

apparent to Detective Harris.” App. at 113. “Rather, the [state 

trial] court found incredible the detective’s postconviction 

testimony as to her perception of the significance of the list 

and accorded it no weight.” Id. We read the state trial court’s 

opinion as finding expressly that “Detective Harris’ erroneous police report misled the defense and demonstrates bad 

faith.” Id. at 147. Regardless of these different readings of the 

state trial court’s conclusion about the bad faith of Detective 

Harris, however, the appellate reversal of the state trial court’s 

finding of bad faith was not unreasonable in light of the appellate court’s broader finding that the list lacked any exculpatory value. Again, bad faith “turns on an official’s subjective knowledge that the evidence had exculpatory value,” so 

evidence that lacks any exculpatory value cannot be disposed 

of in bad faith. See Bender, 95 F.4th at 511, quoting Holly, 940 

F.3d at 1001–02. We have already explained why the state appellate court’s factual finding that M.R.W.’s list lacked any exculpatory value was not unreasonable in light of the consistency of M.R.W.’s testimony across the two video interviews and at trial. That reasoning extends to the state appellate court’s reversal of the district court’s factual finding that 

Detective Harris demonstrated bad faith. The appellate 
No. 22-3059 23

court’s finding was not unreasonable given its not-unreasonable conclusion that the list also lacked any exculpatory value. 

E. Ineffective Assistance

Finally, we affirm the district court’s finding that Nichols’ 

claim for ineffective assistance of counsel was procedurally 

defaulted by his failing to raise the issue in his petition to the 

Wisconsin Supreme Court. O’Sullivan v. Boerckel, 526 U.S. 838, 

848 (1999) (failure to present federal habeas claims to state 

supreme court results in procedural default of those claims); 

accord, Moore v. Casperson, 345 F.3d 474, 484–86 (7th Cir. 2003). 

Nichols argues on appeal that when the Wisconsin Supreme 

Court accepts review of a case, it brings all subsidiary issues 

with it. That may be true in a case where review is granted, 

but it does not avoid procedural default here. “Fair 

presentment requires a petitioner to put forward operative 

facts and controlling legal principles” at each level of state 

court review, Sweeney v. Carter, 361 F.3d 327, 332 (7th Cir. 

2004), which the petitioner must do by “fram[ing] the claim in 

terms so particular as to call to mind a specific constitutional 

right” and citing the relevant state and federal cases analyzing 

that right, id. (petitioner’s reliance on Strickland v. Washington, 

466 U.S. 668 (1984), made clear he was trying to assert 

ineffective assistance of counsel), quoting Wilson v. Briley, 243 

F.3d 325, 327 (7th Cir. 2001). Even if we considered the 

substance of Nichols’ ineffective assistance claim, it would fail 

because it is premised on a due process claim that fails on the 

merits for the reasons explained above.

In sum, the disappearance of the child-victim’s list of corrections to her first statement was a troubling lapse in police 

and prosecution procedures. It should not have happened. 

But the trial jury had the opportunity to see both the first and 
24 No. 22-3059 

second interviews and to see the child testify. To the extent 

there were any conflicts between those three accounts from 

the child-victim, the jury could see them and the defense had 

the opportunity to raise them. Accordingly, we conclude that 

the Wisconsin Court of Appeals’ decision was not contrary to 

or an unreasonable application of clearly established federal 

law, nor was it based on any unreasonable factual finding. 

The district court’s judgment denying Nichols’ section 2254 

petition is 

AFFIRMED.