In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2539

OSCAR C. THOMAS,

Petitioner-Appellant,

v.

MARC CLEMENTS,

Respondent-Appellee.

___________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 12-cv-1024 — William E. Callahan,Jr. Magistrate Judge.

____________________

ARGUED JANUARY 6, 2015 — DECIDED JUNE 16, 2015

____________________

Before FLAUM, WILLIAMS, and TINDER, Circuit Judges.

WILLIAMS, Circuit Judge. Joyce Oliver-Thomas passed 

away sometime in the early morning of December 27, 2006. 

Her ex-husband and roommate Oscar Thomas was convicted of intentionally committing her murder (as well as firstdegree sexual assault and false imprisonment). During the 
2 No. 14-2539

trial, the state’s forensic pathologist testified that the autopsy 

findings were consistent with the application of intentional 

pressure to Oliver-Thomas’s neck, resulting in manual 

strangulation and her death. Thomas argues that his trial 

counsel was ineffective for failing to consider and consult 

with an expert to review the pathologist’s report and perhaps testify consistently with the defense’s theory of the 

case, namely that Thomas unintentionally caused OliverThomas’s death by putting pressure on her neck for too long 

during sex. To show he received ineffective assistance, 

Thomas must demonstrate his counsel’s performance was 

deficient and resulted in prejudice. Since the last reasoned 

opinion from the state courts did not address the performance analysis and applied the wrong standard to the prejudice analysis, we review Thomas’s claim de novo. We agree 

with Thomas that a reasonable counsel would have consider 

and/or consulted with a forensic expert, especially when the 

state’s expert testified there was no evidence of external 

bruising on Oliver-Thomas’s neck but that the expert was 

still sure that this was intentional strangulation. Given the 

weakness of the state’s case, especially as it relates to Thomas’s intent, had counsel reached out to a forensic pathologist, 

or another expert similar to the habeas expert, and the expert

testified, there is a reasonable probability the outcome of the 

trial would have turned out differently. Defendant’s expert

testimony would have highlighted the shortcomings in the 

medical evidence—the lack of external bruises on OliverThomas’s neck and lack of any signs of a struggle on either 

Thomas or Oliver-Thomas—and provided an expert, medical basis upon which the jury could have found reasonable 

doubt. Therefore we reverse the district court’s denial of 
No. 14-2539 3

Thomas’s petition and remand for proceedings consistent 

with this opinion.

I. BACKGROUND 

A. Facts Surrounding Oliver-Thomas’s Death 

Thomas and Oliver-Thomas were married in 1990, had 

two children together, and divorced in 1999. Even after the 

divorce, Oliver-Thomas let Thomas live in her apartment, 

lent him money and helped him in other ways. The two 

would also occasionally have sex. They also fought, and 

there was testimony Oliver-Thomas threatened to kick 

Thomas out numerous times, including on December 26, 

2006, but she never actually forced him out of the apartment.

Around 2 a.m. on December 27, 2006, Erica Cruz, the 

neighbor who lived directly below Oliver-Thomas woke to 

the sound of screaming. Cruz said she heard noises for about 

an hour. She testified that the noises included a woman 

screaming “Stop, stop, I love you. I love you” about three 

times, someone choking, and kicks and thumps on the ceiling. There was then ten minutes of silence, and then the 

sound of moving furniture, which she told police officers 

sounded like someone dragging a body a few feet. She then 

saw two men, including Thomas, leave the building. Cruz 

later heard someone go into Oliver-Thomas’s apartment, 

walk around and say “oh my god move,” either once (as testified at trial) or several times (as Cruz told police in statements).

Police received a call from Thomas at 3:24 a.m. saying Oliver-Thomas was unconscious. An officer arrived on the scene within minutes and found Oliver-Thomas unresponsive 
4 No. 14-2539

with her eyes open and without any pulse. She was pronounced dead in the hospital at 4:19 a.m.

While officers were tending to Oliver-Thomas, Thomas 

told two officers that he came back to the apartment and 

found Oliver-Thomas grabbing her neck in a choking manner before he called the police. Thomas then wrote a statement in which his story differed somewhat, and he said he 

discovered her unresponsive on the floor. A few hours later, 

Thomas voluntarily went to the police station to give another, more detailed written statement. He said around midnight he left the basement and went upstairs to OliverThomas’s apartment and began watching a pornographic 

movie. He went into the bedroom and he and OliverThomas had sex, during which they fell off the bed and continued to have sex. Thomas left the apartment complex to get 

a cigarette. When Thomas returned, he found OliverThomas on the floor.

After learning of the autopsy results—which we discuss 

in more detail later—the police confronted Thomas later that 

afternoon. He was interviewed for eight hours, towards the 

end of which he wrote a two-page statement. He reiterated 

his movie viewing and the ensuing sexual encounter, but 

this time added that he “had [his] left arm up around her 

neck, [his] right arm underneath her” while having sex. After they had sex, Thomas went out to the living room and 

watched more of the video. He then again went into OliverThomas’s room and:

went and jumped on her hip area and was 

humping. I was just messing around. I told her 

I had time for a quickie. ... I rolled Joyce over 

and we went back down on the floor. ... I had 
No. 14-2539 5

my left arm around Joyce’s neck. I didn’t think 

I was squeezing hard but Joyce was struggling, 

yelling to stop and [quit]. Joyce’s feet were 

kicking the floor while telling me to stop. Joyce 

was telling me she loved me and for me to quit 

playing. I kept squeezing for a little while until 

she said she would bite the shit out of me. I got 

up and left.

Thomas did not say the two had a second sexual encounter. 

Thomas went to the basement and came back to find OliverThomas “laying face down on the floor” making “gurgling 

sounds.” The statement ends: “I do believe I was accidentally responsible for the death of Joyce.”

B. The trial 

In addition to presenting that evidence at trial, the state 

proposed two possible motives for Thomas’s actions. First, it 

painted Thomas as desperate for money. It presented the testimony of two co-workers of Oliver-Thomas who said that 

Thomas called just hours after she died to ask about her 

paycheck. Oliver-Thomas’s daughter also testified that the 

purse Oliver-Thomas used every day was missing. Second, 

the state suggested Thomas was upset about a relationship 

he perceived Oliver-Thomas as having with a co-worker. 

One of Oliver-Thomas’s co-workers said Thomas was jealous 

of Oliver-Thomas and a male co-worker and at one point 

Thomas said “he was going to kill that mother fucker.” The 

same witness admitted there was no evidence OliverThomas and the co-worker were actually involved. 

The state also put on the testimony of Dr. Mary Mainland, the coroner and the medical examiner for Kenosha 
6 No. 14-2539

County. Dr. Mainland testified that Oliver-Thomas had 

hemorrhages in her eyes and at least ten abrasions on her 

face. Dr. Mainland also found multiple hemorrhages inside 

Oliver-Thomas’s neck and bruises to her thyroid and larynx. 

There were no marks around Joyce’s neck, but Dr. Mainland 

stated, “It’s possible that another part of the body [other than 

fingers] could have been used to inflict these injuries to her 

neck, such as an arm or a forearm.” Dr. Mainland came to 

the conclusion that Joyce died from “strangulation and the 

strangulation was due to a physical assault.” She testified, 

“This was not an accident,” and estimated it would have 

taken roughly four minutes of continuous pressure to have 

caused Oliver-Thomas’s death.

During its closing arguments, the state relied heavily on 

Dr. Mainland’s testimony when arguing intent. It stated: “If 

there is any doubt about his intent or that his conduct was 

practically certain to cause her death,” the jury should consider how long four minutes actually was. Defense counsel 

did not address the medical findings in his closing argument. In its rebuttal, the state said, “Here, we have that fourminute minimum where the Defendant was in fact choking 

the breath, the life, out of Joyce Marie Thomas. So there is no 

doubt about a long time in which he was reflecting, causing, 

continuing to kill her.” Thomas was convicted and exhausted his direct appeals.

C. Post-conviction hearing 

Thomas’s state habeas counsel argued that Thomas was 

denied effective assistance by trial counsel, who did not 

reach out to a medical expert to review Dr. Mainland’s findings. During the post-conviction proceedings, Thomas presented the report and testimony of Dr. Shaku Teas, a special-
No. 14-2539 7

ist in pathology and forensic pathology. Dr. Teas wrote, “it is 

my opinion that Joyce Oliver-Thomas died as a result of 

pressure on the neck and the autopsy findings are not inconsistent with Oscar Thomas’ statement. There is no physical 

evidence that ‘intentional’ pressure was applied to the neck.”

Dr. Teas testified during the post-conviction hearing that 

some of the injuries indicative of strangulation were missing, 

e.g., external bruises on Oliver-Thomas’s neck and the bone 

in the back of her neck that is often broken during strangulation was not in this case. “My issue,” she testified, “is with 

the diagnosis of strangulation, whether it’s intentional or unintentional.” Dr. Teas testified that she could not “know a 

definite cause of death,” but she was not saying she “cannot 

rule out strangulation.” She also determined that there was 

“actually no evidence of manual strangulation” and none of 

the bruises or scratches on Oliver-Thomas’s face are consistent with manual strangulation.

Trial counsel testified during the hearing that he considered retaining a pathologist to look into a sleep apnea defense, but Thomas stated that Oliver-Thomas had never been 

treated for the suspected illness and there was not any medical documentation, and so counsel did not pursue that defense. Counsel stated he did not “consider retaining a forensic pathologist to at least review Dr. Mainland’s reports and 

findings to see if a forensic pathologist would have any disagreement with her findings.”

The post-conviction court denied relief, finding no deficient performance or prejudice. The state appellate court affirmed, finding no prejudice, but did not address whether 

counsel’s performance was deficient. The district court applied deference to the state post-conviction court’s determi-
8 No. 14-2539

nation regarding trial counsel’s performance and held that

the state post-conviction court did not unreasonably apply 

United States Supreme Court precedent since “counsel had 

no reason to question Dr. Mainland’s conclusion as to the 

cause of death” The court also found, under a de novo review, 

that Thomas was not prejudiced by counsel’s performance 

since Dr. Teas “was unable to render an opinion on the cause 

of death” and “could not rule out strangulation.” Thomas 

appeals.

II. ANALYSIS

Thomas argues he was denied effective assistance when 

trial counsel did not consult with an expert to review Dr. 

Mainland’s findings or determine if his account was consistent with the medical evidence. To prevail on that claim, 

Thomas must show that (1) his counsel’s performance was 

deficient, meaning it fell below the objective standard of reasonableness (the “performance prong”), and (2) that he was 

prejudiced by the deficient performance (the “prejudice 

prong”). Woolley v. Rednour, 702 F.3d 411, 420–21 (7th Cir. 

2012); see also Strickland v. Washington, 466 U.S. 668, 687, 688, 

694 (1984). 

We review a district court’s habeas decision de novo. Woolley, 702 F.3d at 420. We evaluate “the totality of the evidence—both that adduced at trial, and the evidence adduced 

in the habeas proceeding.” Id. at 421. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we 

are required to give deference to the “judgment of a State 

court” and will not grant habeas relief to “any claim that was 

adjudicated on the merits in State court proceedings unless 

the adjudication of the claim—(1) resulted in a decision that 

was contrary to, or involved an unreasonable application of” 
No. 14-2539 9

clearly established Supreme Court precedent or “(2) resulted 

in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State 

court proceeding.” 28 U.S.C. § 2254(d); see also Williams v. 

Taylor, 529 U.S. 362, 376, 385–86 (2000). 

The parties first disagree on the deference owed on the 

performance prong. The post-conviction court addressed 

this prong but the appellate court, which issued the last reasoned opinion from the state system, did not. Clements argues that we nonetheless owe AEDPA deference to that 

prong and cites our decision in Atkins v. Zenk in which the 

trial court analyzed both prongs but the appellate court only 

analyzed one prong. 667 F.3d 939 (7th Cir. 2012). We stated: 

”Because both prongs have been addressed by Indiana state 

courts, in one form or another, the deferential standard of 

review set out in § 2254(d) applies to both.” 667 F.3d at 944. 

Clements argues this means we should apply AEDPA deference to the performance prong even though the appellate 

court did not reach the issue. But, in Atkins, the standard of 

review was not subject to debate between the parties. Atkins 

conceded that his “habeas petition is subject to review under 

the new standards of 28 U.S.C. § 2254 as added by 

[AEDPA]” and said the question is “whether the Indiana 

Court of Appeals [sic] adjudication of those claims were [sic] 

contrary to or unreasonable application of Strickland.” See 

Brief of Petitioner-Appellant at 5, Atkins v. Brown, No. 11-

1891 (7th Cir. Aug. 8, 2011). The government agreed AEDPA 

deference applied to both prongs. Brief of RespondentAppellee at 9–11, Atkins v. Brown, No. 11-1891 (7th Cir. Oct. 

7, 2011). Without any adversarial challenge, there was no 

need for us to render a holding on the deference owed. See, 

e.g., McBride v. Houtzdale, 687 F.3d 92, 100 n.10 (3d Cir. 2012) 
10 No. 14-2539

(applying §2254(d) deference to both prongs even though 

appellate court only ruled on prejudice prong because 

“McBride ha[d] affirmatively taken the position that AEDPA 

deference applies”). 

We do not read Atkins to alter our decisions before or after that have held that AEDPA deference is entitled to the 

“last reasoned opinion on the claim.” Woolley, 702 F.3d at 421 

(quoting Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). In 

Woolley, we held that “Unless a state-court opinion adopts or 

incorporates the reasoning of a prior opinion, ‘AEDPA generally requires federal courts to review one state decision.’” 

Id. (citing Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 

2005)). Since the “state appellate court declined to adopt the 

trial court’s reasoning and instead remained silent on defense counsel’s performance,” and the appellate court’s decision was the “last reasoned opinion,” we gave deference only to the prong the appellate court did reach and reviewed 

the other de novo. Id. at 422. This is consistent with our precedent both before Atkins and since. See Ruhl v. Hardy, 743 

F.3d 1083, 1091 (7th Cir. 2014) (“In conducting federal habeas 

review under AEDPA, we look to the last reasoned state 

court opinion addressing each claim.”); Quintana v. Chandler, 

723 F.3d 849, 853 (7th Cir. 2013) (noting the Woolley court 

“declined the state’s request to apply 2254(d) deference to 

the state court on the ineffectiveness prong, holding that 

Strickland claims are divisible” and reviewing performance 

prong de novo); Earls v. McCaughtry, 379 F.3d 489, 492 (7th 

Cir. 2004) (reviewing performance prong de novo when circuit court found deficient performance, but appellate court, 

in State v. Earls, 635 N.W.2d 905 (Wis. Ct. App. 2001), decided 

case only on prejudice prong). 
No. 14-2539 11

This conclusion about what deference must be given is 

supported by Supreme Court precedent. See Woolley, 702 

F.3d at 421 (citing Ylst, 501 U.S. at 803; Wiggins, 539 U.S. at 

534). It is also supported by AEDPA’s plain language. The 

statute tells us to give deference to “any claim that was adjudicated on the merits in State court proceedings unless the 

adjudication of the claim” falls under an exception in subpart (1) or (2).1 28 U.S.C. § 2254(d). AEDPA explicitly tells us 

deference is afforded to “the adjudication”—note the singular, rather than plural. Had Congress intended us to give 

deference to an amalgamation of adjudications, “it could 

have used different language.” Cf. Grandberry v. Keever, 735 

F.3d 616, 618 (7th Cir. 2013) (interpreting statutory text). The 

exceptions also note that deference is not required when the 

state court’s adjudication “resulted in a decision” either contrary to clearly established law or based on an unreasonable 

factual determination. 28 U.S.C. §§ 2254(d)(1) and (d)(2) 

(emphasis added). Again, the statute refers to a single decision, rather than multiple decisions. Based on Supreme 

Court precedent and the plain language of the statute, we 

reaffirm that we will give AEDPA deference to the “last reasoned opinion on the claim.” Woolley, 702 F.3d at 421. Since 

the Wisconsin Court of Appeals did not adjudicate the deficiency prong, we review that prong de novo.

1 The United States Supreme Court heard oral argument on March 3, 

2015, in the case of Davis v. Ayala (No. 13-1428). The first issue in that 

case is, “Whether a state court's rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless 

beyond a reasonable doubt is an ‘adjudicat[ion] on the merits’ within the 

meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the 

resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision.”

 
12 No. 14-2539

There is also disagreement over the deference we should 

give the appellate court’s analysis of the prejudice prong. It 

said, “Thomas did not demonstrate that his trial counsel’s 

failure to present Teas’ testimony would have led to a different result at trial. [Citations omitted].” Clements concedes 

that the appellate court stated the wrong standard of review—Thomas has to show a “reasonable probability” that, 

but for counsel’s unprofessional errors, the result would 

have been different. Strickland, 466 U.S. at 694. He does not, 

as the appellate court said, have to show that counsel’s performance would have led to a different result. Clements argues this prong is still entitled to AEDPA deference because 

the court “knew and applied the correct formulation of 

Strickland prejudice.” But there is no evidence in the decision 

that it applied the proper standard. Cf. Sussman v. Jenkins, 

636 F.3d 329, 360 (7th Cir. 2011) (reviewing under 2254(d) 

deference even though court failed to cite “reasonable probability” language because “it is clear from the court’s analysis that it did not believe that the note had a reasonable 

probability of altering the jury's verdict”); Charles v. Stephens, 

736 F.3d 380, 392–93 (5th Cir. 2013) (same). The state appellate court only used two sentences to address the prejudice 

prong and did not actually analyze why there was no prejudice, instead setting forth a matter-of-fact statement that 

there was no prejudice, all while applying the incorrect 

standard. The two sentences in the appellate court decision 

here cannot support Clements’s argument. Thus, we find the 

appellate court’s decision “involved an unreasonable application of” Strickland, and we review the prejudice prong de 

novo, making this completely de novo review. See Mosley v. 

Atchison, 689 F.3d 838, 850–51 (7th Cir. 2012) (reviewing 

prejudice prong de novo when state appellate court “did not 
No. 14-2539 13

merely recite the wrong standard or use an inapt shorthand 

expression of the standard. It applied an incorrect and more 

onerous standard, and the difference may well have been 

decisive”).

A. Thomas’s Counsel Provided Deficient Performance

Thomas does not assert that trial counsel should have 

found an expert who would testify that Thomas did not 

cause Oliver-Thomas’s death. Rather, Thomas argues that 

defense counsel was deficient in failing to consider and consult with a pathologist who would have reviewed the autopsy report and possibly testified. We agree with Thomas. 

Time and again, the Supreme Court has highlighted how 

deferential we should be to the strategic and tactical decisions made by attorneys in performing their jobs. “[C]ounsel

should be ‘strongly presumed to have rendered adequate 

assistance and made all significant decisions in the exercise 

of reasonable professional judgment.’ To overcome that presumption, a defendant must show that counsel failed to act 

‘reasonabl[y] considering all the circumstances.’” Cullen v. 

Pinholster, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland, 466 

U.S. at 690, 688). There are “countless ways to provide effective assistance in any given case” and that is why counsel’s 

decisions are afforded a “heavy measure of deference.” Id. at

1407–08 (internal quotations omitted). To limit secondguessing, we must “judge the reasonableness of counsel's 

challenged conduct on the facts of the particular case, 

viewed as of the time of counsel’s conduct." Strickland, 466 

U.S. at 690. 

Were the state court’s determination reviewed under the 

AEDPA deference, we might come out a different way. How-
14 No. 14-2539

ever, reviewing this case de novo, we find that counsel’s performance in relation to a pathologist expert was deficient. 

It is undisputed that counsel did not reach out to or even 

consider talking to a pathology expert to review Dr. Mainland’s conclusion. In many cases, we would chalk such a decision up as strategic or tactical. See Hinton v. Alabama, 134 S. 

Ct. 1081, 1089 (2014) (per curiam) (“The selection of an expert witness is a paradigmatic example of the type of strategic choic[e] that, when made after thorough investigation of 

[the] law and facts, is virtually unchallengeable” (internal 

citations and quotation marks omitted)). But we cannot 

reach such a conclusion because counsel admitted his failure 

to reach out to an expert was not a conscious decision—he 

just did not think to do so. See Woolley, 702 F.3d at 423 (affording no deference to counsel’s strategy choice because 

“[t]hough we often defer to an attorney’s calculated decision 

to forgo a certain trial strategy, it is undisputed that there 

was no strategic rationale underlying these errors”); Cater v. 

Bowersox, 265 F.3d 705, 716 (8th Cir. 2001) (“The presumption 

that counsel's failure to raise the due process claim was a tactical decision, however, is undermined by counsel's affidavit 

that the instructional error was simply overlooked.”). This 

inaction fell below the standard or professional norm since 

“counsel has a duty to make reasonable investigations or to 

make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Here, counsel 

admits to doing neither. While we appreciate counsel’s candor in assessing his own performance and recognize that he 

was presented with a difficult case, that does not excuse his 

failure to even reach out to an expert under these circumstances, and thus, we give no deference to counsel’s uncalculated actions. See Woolley, 702 F.3d at 423; Earls v. McCaught-
No. 14-2539 15

ry, 379 F.3d 489, 494 (7th Cir. 2004) (affording no deference to 

counsel’s decisions when, “We can think of no strategic reason why Earls’ counsel would not have objected to the pieces 

of questionable testimony going to this issue; indeed, counsel admits such failures to object and redact were unintentional ‘oversights’”).

The state had to prove that Thomas “cause[d] the death 

of another human being with intent to kill that person.” Wis. 

Stat. 940.01(1)(a). To show cause, the state had to show that 

his act was a “substantial factor” in producing death. State v. 

Below, 799 N.W.2d 95, 101–02 (Wis. Ct. App. 2011). “‘With 

intent to’ or ‘with intent that’ means that the actor either has 

a purpose to do the thing or cause the result specified, or is 

aware that his or her conduct is practically certain to cause 

that result.” Wis. Stat. 939.23(4); see also State v. Weeks, 477 

N.W.2d 642, 644–45 (Wis. Ct. App. 1991) (defining intent element). Here, counsel had a client who admitted to having 

his arm around the neck of the victim before she died and to 

causing her death. He also had a state pathologist’s report 

finding the cause of death to be manual strangulation. Based 

on those facts, counsel made the wise decision to forgo arguing causation and instead argued that his client lacked the 

specific intent to cause Joyce’s death. As counsel put it, “I 

didn’t really see an issue in terms of cause of death. My issue 

was probably going to be manner of death, whether it was 

homicide—intentional homicide—or some other lesser 

form.”

But that is what makes counsel’s inaction deficient. By 

not reaching out to an expert to review or challenge Dr. 

Mainland’s findings, counsel acquiesced to the state’s strongest evidence of intent despite its perceivable flaws. Counsel 
16 No. 14-2539

knew or should have known that the state was going to use 

Dr. Mainland’s testimony to show Thomas acted intentionally based on Dr. Mainland’s pretrial testimony. She stated 

that, “The internal injuries were too severe and the pattern 

just simply doesn’t fit” the possibility that this was anything 

but strangulation. She ended her testimony by saying that “I 

always keep an open mind while I’m doing an autopsy. But 

once I got to the neck organs, I was pretty certain as to what 

had happened.” (App. R. 22-4, 44). In other words, counsel 

should have known Dr. Mainland was going to testify this 

was an intentional death. 

Counsel also knew his client had said the death was unintentional and the result of what counsel later referred to as 

horseplay. Counsel knew there were no external marks on 

Oliver-Thomas’s neck and no signs of any fight or struggle 

between Thomas and Oliver-Thomas. Counsel should have 

known there was reason to question a finding of intentional 

homicide. Based on those facts, a reasonable counsel would 

have at least reached out to a pathologist to see if the medical findings could be reconciled with Thomas’s versions of 

the events. To not even contact an expert, however, was to 

accept Dr. Mainland’s finding of intentional death without 

challenge and basically doom defense’s theory of the case.

Nor was this a case where counsel’s cross-examination of 

Dr. Mainland made up for the lack of expert. See Harrington 

v. Richter, 562 U.S. 86, 111 (2011) (finding no deficient performance where defense counsel’s cross examination of the 

state’s experts “elicited concessions” from the experts and 

drew “attention to weaknesses in their conclusions”). In fact, 

it turned out to be the exact opposite. The state brought out 

during Dr. Mainland’s direct examination the lack of finger-
No. 14-2539 17

print marks around Oliver-Thomas’s neck, and it came out 

during Dr. Mainland’s testimony that there was no evidence 

of a physical struggle between Oliver-Thomas and Thomas. 

Yet, without any medical testimony to tie those facts to an 

unintentional death, the best defense counsel could do was 

ask the state’s expert whether she disagreed with her own 

diagnosis and thought the death could be an accident. This

line of questioning fell flat:

Q: So, you haven’t determined whether somebody intentionally took the life of Joyce Thomas, is that correct?

A: Well, I am saying it was not an accident or 

that I don’t believe it was an accident.

It also prompted the state to follow up with:

Q: Based on your examination and findings 

this was not caused by an accident?

A: No. This was not an accident.

If anything Dr. Mainland “repeatedly denied any alternative explanations,” and “[w]ithout a countering defense witness, [the expert’s] denials in the face of cross-examination 

only reconfirmed the one-sidedness of the expert opinion 

before the jury.” Woolley, 702 F.3d at 424. 

That is not to say reasonable performance requires retaining an expert every time the state does or every time the 

state presents the testimony of a forensic expert. Recently, 

the Supreme Court stated “[c]riminal cases will arise where 

the only reasonable and available defense strategy requires 

consultation with experts or introduction of expert evidence, 

whether pretrial, at trial, or both.” Harrington, 562 U.S. at 
18 No. 14-2539

106. However, “[t]here are ... countless ways to provide effective assistance in any given case,” and “[r]are are the situations in which the ‘wide latitude counsel must have in making tactical decisions’ will be limited to any one technique or 

approach.” Id., at 788–89 (quoting Strickland, 466 U.S. at 689); 

Woolley, 702 F.3d at 424 (“[D]efendants [do not] enjoy an automatic entitlement to expert rebuttal witnesses whenever 

the government offers expert testimony in a trial,” but there 

are times where the government’s expert’s conclusion require 

“expert illustration by the defense in order for the jury to 

weigh the evidence fairly.); Rogers v. Israel, 746 F.2d 1288, 

1294 (7th Cir. 1984) (collecting cases and noting that “[i]n 

several cases, the failure to investigate and present expert 

testimony has been found to be a matter of trial tactics within the range of reasonable performance”; “[y]et, under certain circumstances, ‘it may be vital in affording effective representation to a defendant in a criminal case for counsel to 

elicit expert testimony rebutting the state’s expert testimony’”). 

We faced a somewhat analogous situation in Rogers v. Israel, when the petitioner fired one bullet in response to a 

feud with a fellow bar patron. 746 F.2d at 1289. The patron 

then charged at the petitioner and another shot was fired 

during the ensuing struggle. Id. The patron ultimately died 

from a gunshot wound. Id. The state’s theory was that the 

petitioner intentionally shot the patron with the first bullet 

and the second shot went into the ceiling. Id. at 1290. The defense theory was that the first bullet went into the ceiling 

and the second, unintentionally fired bullet was the fatal 

one. Id. The prosecution called a pathologist who testified 

that, even if the patron were shot in the heart with the first 

bullet, he would have been able to engage in the ensuing 
No. 14-2539 19

struggle. Id. The defense presented no counter evidence to 

rebut this testimony. Id. After the petitioner was found guilty 

of first-degree murder, he alleged ineffective assistance of 

counsel on habeas review and presented the testimony of a 

pathologist who said that, in his experience, individuals who 

suffered heart wounds comparable to those of the patron 

were “immediately incapacitated upon receiving the 

wounds.” Id. There was “no question” that petitioner caused 

the patron’s death—the petitioner fired the bullet. Id. at 1292. 

Nonetheless, counsel’s performance was deficient because he 

failed to “ask a qualified expert whether [the patron] would 

have been immediately incapacitated by his wound.” Id. at 

1295. 

In other words, it was clear that the petitioner had caused 

the death, and the only issue was whether the death was intentional. The state presented an expert whose testimony 

was used to strongly support its theory of intentional death, 

and defense counsel never pursued any rebuttal expert. We 

found that performance deficient, and such is the case here. 

See also Dugas v. Coplan, 428 F.3d 317, 329–30 (1st Cir. 2005) 

(finding counsel ineffective in arson case for not consulting 

expert when “much of Dugas’s defense ... depended on 

[counsel’s] ability to convince the jurors that the State’s experts might be wrong,” “the arson evidence was the cornerstone of the state’s case,” and counsel did not have technical 

proficiency to present defense without expert). As in Rogers, 

counsel’s failure to even reach out to an expert was deficient. 

B. Thomas Was Prejudiced By His Counsel’s Deficient 

Performance

We next turn to the prejudice prong. To prevail, Thomas 

must show “there is a reasonable probability that, but for 
20 No. 14-2539

counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Cullen, 131 S. Ct. at 1403 (citing 

Strickland, 466 U.S. at 694). It is not enough to show that 

counsel’s performance had an effect on the outcome or that

“it is possible a reasonable doubt might have been established if counsel acted differently.” Harrington, 562 U.S. at 

111. “‘A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.’ That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Cullen, 131 S. Ct. at 1403 (quoting Richter, 131 S. Ct. at 

792). Our conclusion must keep in mind that “a verdict or 

conclusion only weakly supported by the record is more 

likely to have been affected by errors than one with overwhelming record support.” Strickland, 466 U.S. at 696.

Again, were the facts reviewed under the AEDPA deference, we might come out differently. However, reviewing 

this case de novo, we find that Oliver was prejudiced by 

counsel’s deficient performance.

The state’s case was not ironclad by any stretch of the imagination. Its theories of motive—that Thomas wanted money, that he was concerned that Oliver-Thomas would finally 

kick him out after all the previous threats, or that Thomas 

was jealous of Oliver-Thomas’s relationship with a coworker—were all weak. Its case also suffers from a very serious 

flaw in terms of timing. The state’s theory was that there was 

an altercation between Thomas and Oliver-Thomas. Cruz, 

the neighbor, testified that she heard noises (including 

screaming) above her for an hour. Yet Dr. Mainland said 

strangulation would likely result after four minutes of pressure, meaning there were roughly fifty-five minutes in 

which Oliver-Thomas was not being choked to death. Had 
No. 14-2539 21

there been an altercation, one may expect to find signs of a 

struggle after fifty-five minutes of conflict, but all parties 

admit there is no evidence of external marks on either 

Thomas or Oliver-Thomas. The state presents no explanation 

for this. Nor does the state explain how a woman being 

choked to death can scream “Stop, stop, I love you, I love 

you” loud enough to be heard one floor below her. 

Dr. Teas’s testimony,2 combined with Thomas’s statement 

to the police, does explain what happened. Dr. Teas stated 

that the lack of external bruising on Oliver-Thomas’s neck 

and lack of signs of struggle are not inconsistent with Thomas’s story that he had his arm around her neck during sex 

and the rough housing, and that could have caused her 

death. This theory of the case could also explain the noises 

for an hour—the sex and then the rough housing, albeit with 

a break in between—rather than for just five minutes. Dr. 

Teas’s testimony, therefore, provides a reconciliation of these 

facts and a medical foundation for the defense’s argument 

that even if Thomas physically caused her death with a part 

of his body (which no one contests on appeal), he did not do 

so intentionally. As Dr. Teas admitted and the law requires, 

2 The state argues that there is no evidence that Dr. Teas and her testimony were “reasonably available” to defense counsel at the time of 

trial, as they must be for habeas purposes. See Ellison v. Acevedo, 593 F.3d 

625, 634 (7th Cir. 2010) (“For counsel's performance to be found deficient, 

the defendant must demonstrate that an expert capable of supporting the 

defense was reasonably available at the time of trial.”). However, based 

on “its face,” it is clear Dr. Teas was available and able to testify. Id. Her 

curriculum vitae shows that she held the same position in 2007, at the 

time of Thomas’s trial, as when she testified in the post-conviction proceedings. Also, post-conviction counsel was able to find her, and her testimony demonstrates that she was reasonably available at the time.

 
22 No. 14-2539

she could not testify as to Thomas’s state of mind, but her 

testimony reconciles Thomas’s statement and the evidence, 

which leads to the logical conclusion that he did not commit 

the act intentionally. See Steele v. State, 294 N.W.2d 2, 13–14 

(Wis. 1980) (“What we bar from introduction at the guilt 

phase of the trial is expert opinion testimony tending to 

prove or disprove the defendant's capacity to form the requisite criminal intent.”). 

Thomas’s intent was one of the linchpins of the case, if 

not the key point, and yet defense counsel presented no affirmative evidence that Thomas did not have the requisite 

intent to commit the crime. It is true that defense counsel did 

draw out some evidence that Thomas did not commit the act 

intentionally, but that effort was not effective. For example, 

the lack of external bruises was discussed during Dr. Mainland’s testimony; however she quickly rejected that absence 

as inconclusive and stated twice that this could not have 

been an accident. Conversely, Dr. Teas noted in her report 

that there is “no anatomical evidence to classify this death as 

‘manual strangulation’” and stated affirmatively that “Oliver-Thomas died as a result of pressure on the neck and the 

autopsy findings are not inconsistent with Oscar Thomas’s 

statement. There is no physical evidence that ‘intentional’ 

pressure was applied to the neck.” Her conclusion, therefore, 

undermines the state’s already weak case on Thomas’s intent. Had the jury been presented with this testimony, instead of just an argument unsupported by expert testimony 

as it was, it is substantially likely that Thomas could have 

raised at least a reasonable doubt and had a different outcome at trial. Therefore, Thomas has shown that there is a 

reasonable probability the outcome of the trial would have 

been different had counsel provided adequate representa-
No. 14-2539 23

tion. See, e.g, Rogers, 746 F.2d at 1295 (finding prejudice since 

post-conviction expert would have rebutted testimony of 

state expert that physical evidence supported conclusion of 

intent); Showers v. Beard, 635 F.3d 625, 631-34 (3d Cir. 2011) 

(finding counsel’s performance deficient and prejudice when 

defense failed to hire expert to determine if the taste of the 

drug could be masked and therefore whether death was a 

result of suicide or intentional homicide). 

There is a shortcoming that weakens Dr. Teas’s report. 

Namely, she equates Dr. Mainland’s testimony of manual 

strangulation as only strangulation by the hands, but Dr. 

Mainland clearly testified at trial she used the phrase “manual strangulation” to also include strangulation by other 

parts of the body, e.g., the forearm. Nonetheless, the de novo

review of the record leads to the conclusion that Dr. Teas’s

ultimate determination that the facts are consistent with an 

accidental death is sufficient to raise a reasonable doubt and 

therefore show prejudice for ineffective assistance of counsel 

purposes. See, e.g., Strickland, 466 U.S. at 695 (“[T]he question 

is whether there is a reasonable probability that, absent the 

errors, the factfinder would have had a reasonable doubt respecting guilt.”).

III. CONCLUSION

For these reasons, we REVERSE the district court’s denial 

of Thomas’s petition and REMAND for proceedings consistent 

with this opinion.