In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 18‐1954

JEREMIAH FELTON,

Petitioner‐Appellant,

v.

BRYAN BARTOW,

Respondent‐Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 14‐cv‐965 — Nancy Joseph, Magistrate Judge.

____________________

ARGUED FEBRUARY 22, 2019 — DECIDED JUNE 18, 2019

____________________

Before RIPPLE, MANION, and BRENNAN, Circuit Judges.

MANION, Circuit Judge. A jury convicted Jeremiah Felton of

first degree intentional homicide in Wisconsin state court for

the death of his three‐month‐old son, Jeremiah Felton Jr. (J.J.).

The jury heard testimony about the days leading up to J.J.’s

death, such as those who cared for and had contact with him,

including Felton. The jury also heard about Felton’s conver‐

sations with police, whom he told that J.J. had slipped and hit

his head in the bathtub, and with fellow jail inmate, Douglas
2 No. 18‐1954

House, who testified that Felton said he had swung J.J. into a

bathroom door. J.J.’s treating physicians and the medical ex‐

aminer also testified about J.J.’s injuries and cause of death,

which two of the physicians stated, in part, was due to shak‐

ing. The medical examiner concluded that blunt force trauma

was the cause of death. The jury found Felton guilty.   

Felton sought post‐conviction relief in the Wisconsin state

court based on ineffective assistance of counsel. In particular,

Felton cited his attorney’s failure to object to the prosecutor’s

statement during closing argument that House could not re‐

ceive a sentence modification for his testimony in Felton’s trial

and failure to secure medical expert testimony to rebut the

State’s witnesses. At the post‐conviction hearing, Felton’s

counsel testified as well as three medical experts who con‐

cluded J.J. had not been shaken and J.J.’s injuries were con‐

sistent with a fall of two to four feet. The state trial court de‐

nied Felton’s petition, and the Wisconsin Court of Appeals af‐

firmed the denial. The Wisconsin Supreme Court summarily

denied Felton’s petition for review. Felton sought a writ of ha‐

beas corpus under 28 U.S.C. § 2254 in the district court. The

district court denied Felton’s petition, and Felton now appeals

to this court. Because the decision of the Wisconsin Court of

Appeals was not unreasonable, Felton’s petition is denied.  

I.

A. Criminal Trial1

J.J. Felton was born on February 16, 2008. During his short

life, J.J. lived with his mother, Sasha Fulton, and his father,

                                                  1 Unless otherwise noted, the facts are drawn from the testimony and

other evidence at Felton’s criminal jury trial.  
No. 18‐1954 3

Jeremiah Felton, would sometimes stay with them. Sasha and

Felton were not married. They had renewed their relationship

in June 2008, and Felton moved with Sasha and J.J. to a new

apartment the weekend before J.J. died. On Sunday, June 1,

2008, J.J. spent the day at the park with various family mem‐

bers, including his parents. Sasha took J.J. home around sup‐

pertime while Felton stayed out until after midnight. That

night, Felton stayed with Sasha and J.J. at the new apartment.

Sasha’s cousin, Bryiana Fulton, and her baby also stayed there

that night.  

1. The Day at the Apartment

The next morning, while Felton slept, Sasha fed and

played with J.J. before going to work shortly before 9 a.m. Bry‐

iana sometimes cared for J.J., but that day, Sasha told her to

leave him with Felton. It was the first time Sasha left J.J. in

Felton’s care for the day while she was at work.  

While Felton was home with J.J., different family members

came in and out of the apartment throughout the day. Bryiana

left the apartment sometime after 9 a.m. When she returned

around noon, Felton and J.J. were there along with Byrian Ful‐

ton (Bryiana’s brother) and Casey Fulton (Sasha’s brother).

J.J. seemed to be acting normally at that time. Bryiana gave

him a bottle before leaving around 12:30 p.m. Casey and Byr‐

ian left at the same time, and Felton remained in the apart‐

ment with J.J. Sasha called Felton from work about 2:30 or

3 p.m., and he told her that J.J. had been sleeping all day.  

Sasha’s fifteen‐year‐old cousin, Anthony Hendrix, came

by the apartment sometime after his school let out for the day

at 2:30 p.m. There he found Felton alone in the apartment with

J.J., who was sleeping on the couch while Felton was getting
4 No. 18‐1954

out of the shower. Hendrix testified that J.J. cried multiple

times while he was there, and that both he and Felton picked

him up. Hendrix put J.J. down in his crib and patted his back.

J.J. stopped crying, and Hendrix left soon after.  

When Sasha returned home from work around 5:25 p.m.,

she checked on J.J., who was sleeping. She let him sleep; J.J.

was a fussy baby, and Sasha did not want to disturb him. Bry‐

iana came back around the same time. Felton asked Sasha to

drive him to his friend’s graduation. After eating a sandwich,

Sasha borrowed Bryiana’s car to drive Felton to the gradua‐

tion ceremony and returned about a half hour to forty

minutes later. While Sasha and Felton were gone, Bryiana

stayed at Sasha’s apartment with her son and J.J. When Sasha

returned, she did not check on J.J.right away, but let him sleep

and began cleaning the kitchen and bathroom. About fifteen

minutes later, she heard J.J. make a funny noise and went to

check on him. There she found J.J. with one eye open and one

eye shut. Sasha cried out that something was wrong. Bryiana

thought that Sasha was overreacting until she saw J.J. She then

told Sasha to call 911 while she attempted to revive J.J.  

2. At the Hospital

J.J. was taken by ambulance to St. Vincent Hospital in

Green Bay around 7:30 p.m. Dr. John Taylor, pediatric critical

care physician, first saw J.J. shortly after he arrived at the hos‐

pital. Dr. Taylor intubated J.J. and ordered x‐rays and a CT

scan. The CT scan revealed J.J. had a skull fracture just above

and slightly behind his right ear, specifically his right parietal

bone, bleeding under his skull and in his brain, and retinal

hemorrhages. Dr. Taylor told Sasha and Felton he was con‐

cerned someone had hurt J.J. because there was no record of

a car accident or someone falling or tripping down the stairs
No. 18‐1954 5

with their son, and J.J. was not yet rolling or moving by him‐

self. Sasha told Dr. Taylor that the day before while she had

been carrying J.J. in her left arm, J.J. bumped his head as she

walked through the door. Felton did not give any explanation

to Dr. Taylor.

A number of family members came to the hospital that

night. Some of them played in the halls, including Felton, who

pushed Casey around in a wheelchair. Hospital staff  asked

them to leave because they were too noisy and disruptive. Fel‐

ton and Sasha were allowed to stay, and they fell asleep in the

family waiting room.  

That same night, the hospital or Brown County Human

Services contacted the police about J.J.’s serious injuries and

the lack of explanation for them. Detective Robert Haglund

and Detective Walter Wickman of the Green Bay Police De‐

partment arrived at the hospital around 3 a.m. on Tuesday,

June 3. Haglund woke Felton and Sasha. He interviewed

Sasha with a human services representative present, and

Wickman interviewed Felton in a separate room. There Felton

told Wickman that he did not know what could have hap‐

pened because J.J. was with him or people they knew. He told

Wickman about Sasha bumping J.J.’s head into the door, but

provided no other explanation about how J.J. might have sus‐

tained his injuries. After interviewing Sasha, Haglund joined

Wickman and Felton and asked Felton what had happened.

After confirming Felton told him the same thing he had just

told Wickman, Haglund and Wickman left the hospital.

Haglund returned to the hospital the next day and spoke

with various family members, including Bryiana and Hen‐

drix, asking them what might have happened to J.J. He

learned about the move to the new apartment on Friday and
6 No. 18‐1954

Saturday and the day at the park on Sunday. At the end of his

interviews, Haglund asked the family, including Felton,

Sasha, and Bryiana, to be quiet because they were being noisy

playing up and down the halls. Haglund also told them he

believed one of the family members was responsible for J.J.’s

injuries and his prime suspects were Felton, Bryiana, and

Sasha because they had been alone with J.J. on Monday. Hag‐

lund also advised Felton to check in with his probation officer

as he was required to do if he spoke with law enforcement.  

While at the hospital, Felton stated more than once, “I just

don’t want to go to jail.” In one instance, Bryiana testified Fel‐

ton expressed frustration over what he thought was a lack of

information from doctors, and he did not want to hit the doc‐

tor and go to jail.   

3. J.J.’s Death and Felton’s Conversation with Police and

    Fellow Inmate

J.J.’s condition worsened, and he died from his injuries on

June 5th. Shortly after his son’s death, Felton went to the

Brown County Jail on a probation hold. On June 9, 2008, Fel‐

ton asked to talk with police and spoke with Haglund. Felton

gave Haglund a statement, which Haglund typed and Felton

read and signed. In that statement, Felton recounted that

around 2 p.m. on the day J.J. was rushed to the hospital, “I got

in the bathtub with my baby and started giving him a bath.

There was only two inches of water. He was sitting between

my legs and his butt slipped forward and his head came back‐

wards and his head hit the bottom of the tub between my legs.

His right ear went in the water, but his face didn’t go under

the water. He started crying. I wiped him off, got him dressed,

and gave him a bottle, patted him to sleep while he was lying

on the couch.” Felton told Haglund he felt it in his legs when
No. 18‐1954 7

J.J. hit the bottom of the tub and J.J. hit the tub “kind of hard.”

Felton said he was going to tell Haglund about this in the hos‐

pital, but Haglund made him nervous.  

Haglund spoke again with Felton on June 12th telling him

the doctors said that the slip in the tub could not have caused

J.J.’s injuries. When Haglund left the interview room, Felton

stood by the door trying to listen to what was being said out‐

side the room, which Haglund stated witnesses typically do

not do. After speaking with Felton on June 12th, Haglund sent

the case file over to the District Attorney’s Office recommend‐

ing Felton be charged with first degree intentional homicide

for J.J.’s death. On June 13, 2008, the Green Bay Police Depart‐

ment issued a press release about its request and stated J.J.

had suffered a skull fracture from blunt force trauma. The

press release did not say where the fracture was located on

the skull.  

Meanwhile, Douglas House, one of Felton’s fellow in‐

mates at the Brown County Jail, sent police a request form,

otherwise known as a “kite,” dated June 13, 2008. House had

nine to ten prior convictions and had a reputation as both a

jailhouse lawyer and a snitch. House’s kite stated, “I have con‐

clusive evidence to convict Jeremiah Felton, Sr. in the death of

his infant son, Junior. That was caused by right side trauma

to head behind right ear. Will only come out if called out as

an attorney visit.”  

Haglund spoke with House on June 16th. (It was the not

the first time Haglund and House spoke with one another;

they had previously talked about other cases.) House told

Haglund that when Felton approached him, Felton had not

yet been charged with J.J.’s death, and they discussed the time

constraints for Felton’s probation hold. After that, Felton told
8 No. 18‐1954

him about J.J. House told Haglund that Felton had told him

that J.J. was getting on his nerves, so he swung J.J. into the

bathroom door hitting the right side of J.J.’s head behind his

ear. House also asked Haglund to look into whetherthe police

were harassing his children.  

House spoke again with Haglund on June 23rd. Haglund

told House that the police were watching another house near

his children. House, in turn, told Haglund that Felton told

him that the police questioned him about J.J. and he planned

to blame it on his girlfriend’s sister. In addition to telling Hag‐

lund about Felton, House asked Haglund if he could look into

police harassing his son and daughter. Haglund checked into

this and later told House that the police were not watching his

kids, but were watching a nearby house.

4. Other Criminal Trial Testimony  

Felton was charged with first degree intentional homicide

in J.J.’s death, and the case proceeded to trial. Several wit‐

nesses, including Sasha and Felton’s mother, testified that J.J.

was a fussy baby. On one occasion, Bryiana “popped” J.J. and

her son on their diapers when they were “both a little crabby.”

Sasha testified that she did not like that Bryiana spanked J.J.,

but she was very close with her cousin and trusted her to care

for J.J. As for Felton, Sasha and others testified that he was

good with his children and nieces and nephews, and they also

testified that if J.J. got fussy, Felton would pass J.J. to someone

else or put him in his car seat until he stopped crying.  

House testified at trial:

A. Well, he [Felton] said that he had been home, I be‐

lieve he said he was home with his girlfriend’s sister,

or wife’s sister, one or the other, and that he was giving
No. 18‐1954 9

the baby a bath, and the baby slipped. That the baby

had either gotten water in his eyes or mouth and

started crying, and he tried for a long period of time to

quiet the baby down, but that didn’t happen.  

Q. What else did he continue to tell you what hap‐

pened?

A. He had gotten frustrated and was holding the baby,

and then swung the baby into the bathroom door. The

baby, Jeremiah, hit his head on the right side, and he

pointed to the left ‐ ‐ or the right side behind his ear of

where the baby hit his head.

Q. I was going to ask, how do you know it was the right

side?

A. Well, as he was telling me, he made the motion, and

he said he was holding the baby, swung the baby, and

the baby hit his head, and I said where, and he said

right here, and he pointed right behind his head.

...  

Q. Did he say anything else to you after ‐ ‐  

A. He did.  You know, he made it sound like he was

going to put the blame on the ‐ ‐ the girlfriend’s sister,

and he said he ‐ ‐ he also said you know, for a substan‐

tial amount of time that baby shut up so he knew some‐

thing was wrong.

House found Felton’s demeanor odd because “it was like

there was no concern whatsoever for the baby.” House also

told the jury about Felton’s confession and identified Felton

in the courtroom. He testified that after Felton was charged,
10 No. 18‐1954

Felton approached House about the kite and asked why

House snitched on him.  

On cross‐examination, House denied ever talking with his

attorney about getting anything in return for information he

had about Felton. Felton’s counsel impeached House by play‐

ing two recorded telephone conversations that House had

while in the Brown County Jail. The first call was between

House and his attorney. During that call, House’s attorney

told him she had spoken with Haglund who said he was un‐

sure he could do anything for House unless House testified in

Felton’s case. House’s attorney also discussed information

House had about another homicide. The second call was be‐

tween House and one of his daughters. House’s daughter told

him that Haglund had said House needed to testify “against

[sic] for the baby or something.” On redirect, House testified

his case was over and he did not receive any consideration in

his case for his testimony in Felton’s trial.  

Felton called his Brown County Jail cellmate, Ishtayopi

Jones, to testify. Jones came to the jail on June 14th. He was

familiar with House because they had met previously, though

he tried to stay away from House because his family warned

him that House was a “con artist.” Jones stated House ex‐

pressed concern to him when he learned that Jones was room‐

ing with Felton, though House did not tell Jones why. Jones

said he learned about Felton’s case from the television. Jones

stated he did talk with Felton about House and what a “big

troublemaker” and “scam artist” he was.  

On cross‐examination, the prosecutor asked Jones about a

kite he signed and dated October 8, 2008. The kite stated, in

part, “I did not and will not try and tell on Jeremiah Felton.”

When asked at trial, “What’s there to tell on Jeremiah Felton,”
No. 18‐1954 11

Jones responded, “Nothing, I guess.” The prosecutor further

questioned Jones about the kite, and Jones’s testimony made

it clear that he knew nothing about Felton’s case from Felton

or House and that Felton, not Jones, wrote the kite. When

asked why he signed the request form, Jones responded,

“‘Cause [Felton] looked pretty mad at me, then I just told him

I’d sign it and that if he needs me to testify, I’ll do that for

him.” Jones also testified he told Haglund that Felton had

nevertalked with Felton about his case and that House “is just

lying and making stuff up to get himself out of what situation

he’s in right now.”  

5. Medical Testimony

Also at trial, the State called three physicians, two of J.J.’s

treating physicians and the medical examiner, to present tes‐

timony about J.J.’s injuries and cause of death. Dr. John Tay‐

lor, who first treated J.J. upon his arrival at the hospital, testi‐

fied that both J.J.’s fracture and retinal hemorrhaging were the

result of a significant amount of force, such as a car accident.

In J.J.’s case, Dr. Taylor suspected “most likely that this was a

result of significant shaking.” Dr. Taylor stated that a bump

like Sasha bumping J.J.’s head in the doorway would not ac‐

count for J.J.’s injuries because the bump was on J.J.’s left side,

the force would have been insufficient, and J.J. was eating,

sleeping, awakening, and playing in an age‐appropriate way

after that. He also testified that it is difficult to establish a time

frame for when the injuries were sustained. According to

Dr. Taylor, it could be at the longest a day, but he believed it

was within an hour or two of the injuries presenting them‐

selves.  

A couple hypotheticals were posed to Dr. Taylor while he

was testifying. The prosecutor asked him about a child J.J.’s
12 No. 18‐1954

size slipping in the bathtub between someone else’s legs and

hitting his head. Dr. Taylor responded that the distance of the

fall would not have caused the skull fracture, hemorrhages,

and bruising in the back of the eye. He stated that J.J.’s injuries

were more consistent with his head being swung into a door

than falling in a bathtub. Felton’s counsel asked whether, hy‐

pothetically, those injuries could have resulted from someone

falling with J.J. at the playground. Dr. Taylor responded that

it was “[e]xtraordinarily unlikely, but ... there was a

miniscule possibility.”  

Another of J.J.’s treating physicians, Dr. Ralph Vardis, also

testified. He concluded that J.J.’s injuries were consistent with

being violently shaken and slammed into a hard surface. On

cross‐examination, Dr. Vardis stated that the injuries could

have been caused by a fifteen‐year‐old so long as it was vio‐

lent and intentional. Dr. Vardis testified about the progression

of J.J.’s symptoms, namely the brain swelling, and concluded

that J.J. was so severely shaken that his brain completely died.

He said J.J.’s brain bleeding and skull fracture were not likely

caused by a short fall, but rather “[t]he only way you can get

the kind of findings that we saw is if the height was one to

two stories from the top of a building.” According to Dr. Var‐

dis, some of J.J.’s bleeding was due to the skull fracture and

some of the bleeding was due to the shaking. He acknowl‐

edged on cross‐examination that there was a disagreement

between his opinion regarding J.J.’s cause of death, i.e. shaken

baby syndrome, and the medical examiner’s conclusion in the

autopsy report, i.e. head injuries due to blunt force trauma.

As for timing, Dr. Vardis noted that there is no way to tell

when the injuries occurred. He stated that the injury could not

have happened on Sunday, but it could have happened be‐

tween five minutes to twelve hours from when the symptoms
No. 18‐1954 13

were evident. He also expected the same physical findings if

it had taken place at 1 p.m. or 5 p.m. the day J.J. came to the

hospital.  

The third doctor to testify at trial was Dr. Mark Witeck. Dr.

Witeck, a forensic pathologist, served as the medical examiner

for Brown County. He performed the autopsy on J.J. Based on

his examination, Dr. Witeck concluded that J.J. died of “cra‐

nial cerebral trauma, in other words, head injuries due to

blunt force trauma.” Dr. Witeck testified that J.J. was just un‐

der 15 pounds and was 24.5 inches long, had no external inju‐

ries, including bruises, and his anterior fontanel, commonly

referred to as the soft spot in the front of the head, was bulg‐

ing outward. This was consistent with brain swelling, and the

severity and global nature of the swelling was consistent with

a head injury. J.J. had fractures on the right side and front base

of his skull in “what’s called the orbital plate, that’s the little

bone plate that’s just above the eye.” There was also a blood

clot and bleeding on the surface of the right side of the brain.

Dr. Witeck stated “that requires a lot of trauma to the head to

get that kind of bleeding.” Dr. Witeck testified J.J.’s brain

bleeding was consistent with the fracture. While he stated eye

hemorrhages are often seen in children who are shaken, he

did not opine whether J.J. had been shaken.  

According to Dr. Witeck, the fracture was consistent with

having been caused by blunt force trauma. This means J.J.’s

head was hit with something or against something, though

there was no way to know whether it was a single blow or

multiple blows. He also said J.J.’s injuries were consistent

with being swung into an object with significant force.

Dr. Witeck testified J.J.’s fractures were not consistent with a

baby standing and falling to the floor, but were consistent
14 No. 18‐1954

with a fall only from a large height, like off of a one‐ or two‐

story building. When asked whether a child of 24.5 inches tall

sitting in a bathtub, slipping, and hitting his head on the bath‐

tub could cause the injuries that he saw, Dr. Witeck re‐

sponded, “Not at all.” On cross‐examination, Dr. Witeck tes‐

tified a premature birth could play a part in a child’s suscep‐

tibility to fracture.

Felton did not call any medical experts to testify on his be‐

half. (As discussed below, his attorney consulted with her

physician husband and a medical student, but did not call ei‐

ther as witnesses at trial.) Other than the testimony elicited

from the State’s medical experts on cross‐examination, Felton

did not present any medical evidence at trial.  

6. Jury Instructions, Closing Arguments, and Verdict

After the close of evidence, the trial judge instructed the

jury. In part, the judge instructed, “Consider only the evi‐

dence received during this trial as given to you by these in‐

structions, and from these alone, guided by your soundest

reason and best judgment, reach your verdict.” The judge also

instructed, “Remarks of the attorneys are not evidence. If the

remarks suggested certain facts not in evidence, disregard the

suggestion. In a few moments, you will hear the closing argu‐

ments of the attorneys. Consider carefully the closing argu‐

ments of the attorneys, but their arguments and conclusions

and opinions are not evidence. Draw your own conclusions

from the evidence and decide upon your verdict according to

the evidence and the instructions given you by the court.” Af‐

ter instructions, the prosecutor and Felton’s counsel pre‐

sented their closing arguments to the jury.

  
No. 18‐1954 15

During closing arguments, the prosecutor argued in part:

What House is testifying has to be the truth ... what

did he get for testifying on October 21st or 22nd, 2009?

The answer is nothing. Absolutely nothing. Is there a

case pending against him? No. Long gone. Over. Done

with. There’s nothing that House was going to gain by

testifying. Because his case was over. It was done. Per‐

haps, just maybe, perhaps, he testifies because he was

subpoenaed by the state and maybe, even somebody,

even a criminal like Doug House, can do the right thing

once in a while.

In response, Felton’s counsel stated:

And by the way, I am going to set the record straight.

State said, well, his case is settled. He didn’t get any

concessions. Cooperation with law enforcement, that

matter can be reopened any time for a sentence modi‐

fication. So the fact that he hasn’t received any benefit

yet, it might be ‘cause we had to wait for this case to go

forward. Doesn’t mean he’s not getting it. It means he

hasn’t gotten it yet.  

And the prosecutor responded in the State’s rebuttal:

Mr. House has absolutely nothing to gain here. He was

honest with you. His case is closed. He can’t receive

anything for his testimony at this point. ... [H]e won’t

gain anything, no advantages from the state. Just a

lightening of his conscience. ... And he’s received no

consideration for this. His case is closed. Once again,

it’s done.

Felton’s counsel did not object to this latter statement.

(Several months later, House received a sentence reduction
16 No. 18‐1954

for his testimony at Felton’s trial, though the State remained

silent on that motion.) After deliberating for about four hours,

the jury found Felton guilty of first degree intentional homi‐

cide. Felton was sentenced to life imprisonment.  

B. Post‐conviction Proceedings

Felton filed a post‐conviction motion asserting ineffective

assistance of counsel based on two alleged errors. First, he ar‐

gued that his attorney erred by not securing medical experts

to rebut the State’s medical testimony at trial. Second, Felton

argued his attorney erred by not objecting to the prosecutor’s

closing argument rebuttal statement that House would re‐

ceive no benefit from his testimony. 2

1. Felton’s Counsel

The state trial court conducted a hearing on Felton’s mo‐

tion. There Felton’s trial counsel testified. Felton was first rep‐

resented by a public defender, and counsel began to represent

Felton after he and his family privately retained her. While

the original agreement was that she would receive $15,000 to

take the case through trial, she essentially represented Felton

pro‐bono receiving only $750 in payments. Despite a lack of

compensation, counsel continued to represent Felton because

she felt strongly about his case. Financial constraints, though,

impacted her decision about medical experts. Counsel testi‐

fied that she did not hire medical experts because of the ex‐

pense (the two out‐of‐state experts she contacted both wanted

a minimum $2,500 retainer, and she never sought funding

                                                  2 Felton also invoked the state trial court’s discretionary power to

grant him post‐conviction relief in the interest of justice asserting the jury

did not have the opportunity to hear the medical testimony and was mis‐

led by the prosecutor’s closing argument statements about House.
No. 18‐1954 17

through the state public defender’s office). Counsel also

stated that she did not think that “hired guns” would play

well to a Green Bay jury. Instead, she researched medical lit‐

erature and consulted her husband, a general internist who

specialized in endocrinology, and a medical student, who was

working for her husband, about the case. The medical student

had relationships with physicians at Milwaukee Children’s

Hospital and presented J.J.’s file to one of the doctors there.

That doctor said that the race of the family was the first thing

at which he would look. This raised red flags for counsel, and

she did not pursue an evaluation of the case from that doctor.

Finally, when asked, counsel testified she was aware of State

v. Edmunds, 746 N.W.2d 590 (Wis. 2008), in which the Wiscon‐

sin Supreme Court granted a new trial to a defendant based

on newly discovered evidence rebutting the shaken baby syn‐

drome theory. Counsel stated she did not contact any of the

Edmunds experts.

Regarding House, counsel said she repeatedly argued to

the jury why it should not believe House. She also noted she

worked hard to discredit Detective Haglund, including ques‐

tioning him about any concessions for House, such as check‐

ing on the surveillance of his daughter. She also explored al‐

ternate avenues from which House could have learned about

the case, such as the Green Bay Police Department press re‐

lease. She stated she made the strategic decision not to object

to the prosecutor’s closing argument rebuttal statement about

House because she concluded it was better in the face of the

jury not to object. Moreover, counsel noted that she “objected

by giving a narration of my objection, rather than saying, ob‐

jection.” In other words, she described to the jury House

could be entitled to a sentence modification even if he had not

received one yet.  
18 No. 18‐1954

2. Post‐Trial Medical Experts

Felton also called three medical experts to testify at his

post‐conviction hearing. These physicians were critical of the

State’s medical experts in two key respects: they concluded

J.J.’s injuries were not from shaking and his injuries could

have been the result of a short fall.  

The first doctor to testify was Dr. Patrick Barnes, a pediat‐

ric radiologist and neuroradiologist from Stanford University

School of Medicine. Dr. Barnes disagreed with the State’s ex‐

perts that J.J. had been shaken. He noted that J.J. would have

suffered a neck injury if he had been shaken. Moreover,

Dr. Barnes stated that even if J.J. had been shaken, his injuries

would have resulted from some sort of impact and not shak‐

ing alone. He also strongly disagreed with the State’s experts

about J.J.’s injuries being equivalent to those of a multi‐story

fall. Rather, Dr. Barnes testified that J.J.’s fracture was a classic

example of a fall between two and three feet, such as a child

falling while being held by a standing adult. He stated,

though, J.J.’s fracture and other injuries were less likely a re‐

sult of a short fall, estimating a five percent chance. Dr. Barnes

also testified that J.J.’s skull fracture “is what we call a linear

skull fracture. It’s actually a very common type of traumatic

injury to an infant’s skull due to accidental injury scenarios,

like dropping the baby to the floor or hitting the baby’s head

against something, but it still doesn’t tell us if it was inten‐

tional or accidental.” Dr. Barnes stated it is uncommon for a

child to die from a three or four foot fall. While a bump could

cause a simple skull fracture, because of J.J.’s other injuries,

namely the brain swelling and bleeding, something other

than a bump to the head or banging his head against the wall

happened according to Dr. Barnes. Regarding the bleeding
No. 18‐1954 19

between J.J.’s brain and skull, Dr. Barnes testified that it has

been reported to be connected with either a lack of oxygen or

blood flow to the baby’s brain or where there is malignant

brain swelling from either accidental or non‐accidental

causes. Dr. Barnes went on to testify that J.J. had lung abnor‐

malities suggestive of an improper intubation that could have

interfered with the oxygen to his brain.  

The second physician, Dr. Joseph Scheller, staff child neu‐

rologist at Children’s National Medical Centerin Washington,

D.C., also disagreed with the State’s experts that J.J. had been

shaken and noted the absence of a neck injury. He said J.J. had

a skull fracture, and “[i]t’s physically impossible to create a

skull fracture without force against the outside of the head, so

we are sure that something happened to the outside of this

child’s head that was a force directed against it.” Like Dr.

Barnes, he was critical of the State’s medical experts’ testi‐

mony analogizing the force to that of a car accident or a multi‐

story fall. He testified that a short fall of two or three feet

would less commonly cause a skull fracture, and it was less

likely to have a skull fracture from a short fall than from being

swung or slammed into a hard object. Though Dr. Scheller

thought that J.J.’s injuries were more in line with a fall because

of the absence of bruising, he later stated it was possible to

have a skull fracture without any bruising. Dr. Scheller testi‐

fied, “I believe that the baby did develop the skull fracture,

the brain swelling, and the retinal hemorrhages from a short

fall rather than having been maliciously slammed into some‐

thing” because “from witnessed short falls, that when babies

get a skull fracture, it is in the parietal area ... and that’s where

baby Felton’s skull fracture was. And we really didn’t see any

evidence of bruising. Again, if a baby’s being held violently

and being slammed, then you’re going to look for bruising or
20 No. 18‐1954

bone injuries somewhere else, and we really didn’t see that.”

He noted a parietal fracture was a common injury in infants

and, in his experience, if the injury is not witnessed and there

is no other abnormality, the conclusion is that the injury was

accidental. As for when J.J. sustained his injuries, Dr. Scheller

testified it could have been three to six hours, maybe twelve

hours, but not twenty‐four hours.  

The final doctor to testify at the hearing was Dr. John Plun‐

kett, a forensic pathologist from Minnesota. Dr. Plunkett 

stated that J.J. was pretty immobile, so “we’re not talking

about him rolling or falling off of some structure. We’re talk‐

ing about an adult either intentionally or accidentally drop‐

ping him or throwing him. Those are your possibilities, at

least from the history that I have, so you can’t draw an anal‐

ogy and just say fall.” Put another way, Dr. Plunkett testified

that J.J.’s fracture was “consistent with an aggressive, mali‐

cious act against the baby’s head and it’s also consistent with

a short fall,” but there was no way to tell absolutely. Similarly,

there was no way to tell just by looking at the injuries whether

they were the result of an accidental or intentional cause ac‐

cording to Dr. Plunkett. He stated that he would expect to see

other injuries if a child had been swung into a wall like a base‐

ball bat. On cross‐examination, Dr. Plunkett testified it was

possible, though, for a child to be propelled or struck against

an object with the same velocity and acceleration that would

result from a three‐and‐a‐half‐foot fall.

The state trial court denied Felton’s post‐conviction mo‐

tion for relief, analyzing both the performance and prejudice

prongs of the ineffective assistance of counsel claim. The Wis‐

consin Court of Appeals similarly denied Felton’s petition,
No. 18‐1954 21

concluding that neither counsel’s failure to object to the pros‐

ecutor’s closing argument statement nor her failure to call

medical experts was prejudicial. The Wisconsin Supreme

Court summarily denied Felton’ petition for review. Felton

filed a petition for federal habeas relief in federal court. The

district court denied his petition, but it issued a certificate of

appealability. Felton now appeals.

II.

To succeed on his claim of ineffective assistance of coun‐

sel, Felton must show his counsel’s performance was deficient

and he was prejudiced as a result. Strickland v. Washington, 466

U.S. 668, 687 (1984). We are not required to consider perfor‐

mance or prejudice in a particular order or even address “both

components of the inquiry if [Felton] makes an insufficient

showing on one.” Id. at 697.  

We review a district court’s denial of a petition for habeas

corpus de novo and findings of fact for clear error. Barrow v.

Uchtman, 398 F.3d 597, 602 (7th Cir. 2005). The Antiterrorism

and Effective Death Penalty Act (“AEDPA”) authorizes us to

grant habeas relief only if the state court decision was “con‐

trary to, or involved an unreasonable application of clearly

established Federal law, as determined by the Supreme Court

of the United States” or “based on an unreasonable determi‐

nation of the facts in the light of the evidence presented in the

state court proceeding.” 28 U.S.C. § 2254(d). We will consider

“the last reasoned opinion on the claim,” which in this case is

from the Wisconsin Court of Appeals. Woolley v. Rednour, 702

F.3d 411, 421 (7th Cir. 2012) (quoting Ylst v. Nunnemaker, 501

U.S. 797, 803 (1991)). A state court’s application of federal law

is unreasonable if it is “more than incorrect; it must have been

objectively unreasonable.” Id. at 420 (citing Wiggins v. Smith,
22 No. 18‐1954

539 U.S. 510, 520 (2003)); accord Williams v. Taylor, 529 U.S. 362,

411 (2000). “‘Unreasonable’ in [the AEDPA] context means

more than just incorrect; it means something ... lying well

outside the boundaries of permissible differences of opinion.”

McGhee v. Dittmann, 794 F.3d 761, 769 (7th Cir. 2015) (quoting

Corcoran v. Neal, 783 F.3d 676, 683 (7th Cir. 2015)). “The bar for

establishing that the state court’s application of the Strickland

[ineffective assistance of counsel] standard was ‘unreasona‐

ble,’ is a high one.” Taylor v. Bradley, 448 F.3d 942, 948 (7th Cir.

2006). “[A]s long as we are satisfied that the Wisconsin Court

of Appeals took the constitutional standard seriously and pro‐

duce[d] an answer within the range of defensible positions,

we will affirm the district court’s decision to deny the writ.”

Id. (citation and internal quotation omitted).

Before turning to the merits of Felton’s claim, we must de‐

termine the appropriate standard ofreview in this case. Felton

argues the Wisconsin Court of Appeals is not entitled to

AEDPA deference on either the performance or prejudice

prongs of Strickland. As for the performance prong, we agree.

Because the Wisconsin Court of Appeals did not address the

performance prong, we are to review counsel’s performance

de novo. Woolley, 702 F.3d at 422.  

Regarding the prejudice prong, Felton argues that our re‐

view also should be de novo because the Wisconsin Court of

Appeals unreasonably applied Strickland. See Thomas v. Clem‐

ents, 789 F.3d 760, 767 (7th Cir. 2015) (reviewing state court’s

prejudice prong analysis de novo where the court “only used

two sentences to address the prejudice prong and did not ac‐

tually analyze why there was no prejudice”). First, Felton as‐

serts the state appellate court unreasonably applied the Strick‐
No. 18‐1954 23

land prejudice standard to the facts by not “independently un‐

dertaking a complete review and analysis of the trial and

postconviction expert testimony.” Felton, however, did not

present this argument to the district court. “[A]rguments in a

federal habeas petition which were not raised in the district

court are not properly raised for the first time on appeal.”

Mertz v. Williams, 771 F.3d 1035, 1043 (7th Cir. 2014). “Regard‐

less of whether a habeas claim was fairly presented or de‐

faulted in the state courts, if an argument was not presented

to the federal district court, it is forfeited in this court.” Frazier

v. Varga, 843 F.3d 258, 262 (7th Cir. 2016). By not presenting it

to the district court, Felton similarly forfeited his contention

that the Wisconsin Court of Appeals unreasonably applied

Strickland by failing to review counsel’s errors cumulatively.

Id.3

As he did argue before the district court, Felton contends

that he is entitled to de novo review because the state court im‐

properly used an outcome‐determinative test in applying

Strickland. Concluding counsel’s failure to object to the prose‐

cutor’s closing argument “was not prejudicial,” the Wisconsin

Court of Appeals stated, “[W]e do not believe there is a rea‐

sonable probability that it affected the outcome of the trial.”

The Wisconsin Court of Appeals’s use of the word “outcome”

                                                 

3 The State argues Felton did not fairly present to the state court this

claim of the cumulative prejudicial effects of counsel’s errors, citing Black‐

mon v. Williams, 823 F.3d 1088, 1100 (7th Cir. 2016), in which a claim was

procedurally defaulted because petitioner did not raise it before the state

courts. While Felton’s only mention of cumulative review before the Wis‐

consin Court of Appeals was in a subheading of his brief stating, “Indi‐

vidually or cumulatively, these deficiencies prejudice Felton,” we need

not undertake a procedural default analysis because Felton also did not

assert this argument before the district court.
24 No. 18‐1954

does not mean it applied the outcome‐determinative standard

that the Supreme Court declined to adopt in Strickland, par‐

ticularly because it is modified by no “reasonable probabil‐

ity.” 466 U.S. at 693 (declining to adopt an outcome‐determi‐

native standard, “that counsel’s deficient conduct more likely

than not altered the outcome in the case.”) (emphasis added);

see Ruhl v. Hardy, 743 F.3d 1083, 1092 (7th Cir. 2014) (summa‐

rizing that to establish ineffective assistance of counsel, a de‐

fendant must show, in part, that “there is a reasonable proba‐

bility that counsel’s errors affected the outcome of the proceed‐

ing.”) (emphasis added). We are also unpersuaded by Felton’s

argument that the state appellate court’s conclusion that “the

State’s case did not hinge on House’s testimony” is proof it

applied an outcome‐determinative approach. In so stating,

the Wisconsin Court of Appeals was describing House’s testi‐

mony in relation to the other evidence presented at trial, in‐

cluding the trial evidence undermining House’s credibility. In

other words, the Wisconsin Court of Appeals was stating why

counsel’s failure to object did not “undermine confidence in

the outcome” of the trial. Strickland, 466 U.S. at 694. This is

exactly what the Wisconsin Court of Appeals was required to

do to determine whether there was a “reasonable probability

that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. Therefore, our re‐

view of the Wisconsin Court of Appeals’s denial of Felton’s

ineffective assistance of counsel claim based on prejudice is

“highly deferential.” Hinesley v. Knight, 837 F.3d 721, 732 (7th

Cir. 2016) (quoting Burt v. Titlow, 571 U.S. 12, 18 (2013)).  

Because we will review the prejudice determination of the

Wisconsin Court of Appeals for whether it was unreasonable

in light of the evidence presented, 28 U.S.C. § 2254(d)(2), and

Strickland’s performance prong de novo, we will first consider
No. 18‐1954 25

the prejudice prong. Only if Felton prevails on the prejudice

prong will we need to consider the performance prong. See

Strickland, 466 U.S. at 697 (noting “there is no reason for a

court deciding an ineffective assistance claim ... to address

both components of the inquiry if the defendant makes an in‐

sufficient showing on one.”).  

With the standard of review decided, we turn to the prej‐

udice prong of Felton’s ineffective assistance claim. To estab‐

lish prejudice, Felton must show “that there is a reasonable

probability that, but for counselʹs unprofessional errors, the

result of the proceeding would have been different. A reason‐

able probability is a probability sufficient to undermine confi‐

dence in the outcome.” Strickland, 466 U.S. at 694. Felton must

do more than show that “it is possible a reasonable doubt

might have been established if counsel acted differently.”

Harrington v. Richter, 562 U.S. 86, 111 (2011). “Instead, Strick‐

land asks whether it is ‘reasonably likely’ the result would

have been different.” Id. (quoting Strickland, 466 U.S. at 696).

“The likelihood of a different result must be substantial, not

just conceivable.” Id. at 112.

Felton argues his trial counsel erred in two ways: by fail‐

ing to object to the prosecutor’s closing argument statement

regarding the availability of a sentence modification for

House and by failing to call medical experts at trial. We first

address counsel’s failure to object to the prosecutor’s closing

argument. The Wisconsin Court of Appeals held counsel’s

failure to object to the prosecutor’s statement was not preju‐

dicial. The state appellate court noted House had credibility

issues, citing his criminal history, and counsel diminished the

impact of the State’s statement by noting the availability of a
26 No. 18‐1954

sentence modification in the future. We conclude that this is

not an unreasonable conclusion in light of the facts.  

House had a host of credibility problems, and the jury was

aware of these problems. At the time of trial, House was in jail

and had nine or ten prior convictions. He was known as a jail‐

house lawyer, snitch, and scam artist. Moreover, as trial coun‐

sel demonstrated through the jailhouse phone calls, House

was willing to reveal information he obtained while in prison

to law enforcement for his own benefit and then later lie un‐

der oath about doing just that. Whether House received a ben‐

efit for his testimony at Felton’s trial did not diminish House’s

significant credibility problems. Any objection to the prosecu‐

tor’s non‐evidentiary statement in closing argument rebuttal

would not have altered House’s testimony about Felton’s con‐

fession. The jury also heard Felton’s counsel’s closing argu‐

ment where she asserted that House did not receive any ben‐

efit yet. Therefore, even if counsel erred by not objecting to the

prosecutor’s closing argument rebuttal statement, there was

not a substantial likelihood of a different result had counsel

objected, Strickland, 466 U.S. at 696, and we conclude the Wis‐

consin Court of Appeals was not unreasonable in concluding

that Felton was not prejudiced by counsel’s failure to object,

cf. Baer v. Neal, 879 F.3d 769, 788 (7th Cir. 2018) (When review‐

ing a claim of prosecutorial misconduct, “we are to consider

the prosecutorʹs conduct not in isolation, but in the context of

the trial as a whole, to determine if such conduct was so in‐

flammatory and prejudicial to the defendant ... as to deprive

him of a fair trial.”) (internal quotations and citations omit‐

ted).  

Regarding counsel’s other error, Felton argues having ex‐

perts to challenge the State’s medical evidence “was essential
No. 18‐1954 27

to the defense because Felton said J.J. accidentally slipped and

fell in the bathtub. If experts could show the accident as a

plausible cause of death, the jury could harbor reasonable

doubt.” In support of his claim of prejudice, Felton also as‐

serts that his experts made two key points: first, there was no

medical evidence to support a diagnosis of shaking, and sec‐

ond, his experts supported his claim that J.J.’s injuries were

the result of a relatively minor fall.4

Taking the second point first, Felton’s medical expert tes‐

timony does not support the theory that J.J.’s bathtub slip and

fall caused his death. Those experts testified that J.J.’s injuries

were consistent with a fall from two to four feet or striking

something with the force of a fall from two to four feet. J.J.

was 24.5 inches tall. Even if J.J. slid from the seated position

and hit his head in the tub, such a fall would only have been

from about one foot and would not have been a free fall, but,

rather, a slide from the seated position. Therefore, there is not

a reasonable probability that Felton would not have been con‐

victed because the habeas medical testimony would not have

supported the claim that J.J.’s death was caused by his bath‐

tub fall.  

Furthermore, both the trial and habeas medical experts

agreed that J.J. was not mobile at the time of his death, and

there was no evidence at trial that someone fell while holding

J.J. To the extent that Felton’s theory was that someone else

                                                 

4 While he argued before the district court that his post‐trial experts

rebutted the State’s medical expert testimony regarding when J.J.’s inju‐

ries were incurred, Felton concedes on appeal that neither sides’ experts

could narrow the timing of the injuries to one particular suspect.  
28 No. 18‐1954

hurt J.J. at the playground, trial counsel elicited testimony

from Dr. Vardis that, hypothetically, J.J.’s injuries could have

been the result of a playground fall. And the jury heard testi‐

mony about Sasha bumping J.J.’s head on the door frame and

medical testimony from Dr. Taylor that such a bump on the

left side of the head would not have caused J.J.’s injuries. Sim‐

ilarly, Dr. Barnes testified at the habeas hearing that J.J.’s in‐

juries were not the result of an accidental bump to his head.  

Regarding shaking, it is true that two of the State’s experts

testified at trial that J.J. had been shaken, and according to

Dr. Vardis, shaken severely, and that Felton’s habeas experts

rebutted that testimony citing the absence of a neck injury.

Shaking, however, was not the only evidence the jury heard

about the cause of death. Dr. Witeck testified that the cause of

J.J.’s death was “head injuries due to blunt force trauma.” And

even Dr. Vardis testified that J.J. had been slammed into a

hard object, which is consistent with the testimony of Dr.

Barnes that even if J.J. had been shaken, his injuries were from

some sort of impact and would not have been from shaking

alone. In light of this evidence, the Wisconsin Court of Ap‐

peals was not unreasonable in its conclusion that “we are not

convinced that the differences in expert medical testimony

were significant enough to undermine our confidence in the

outcome or prevent the real controversy from being tried”.5

                                                  5 To the extent that Felton’s argument that the state appellate court

unreasonably applied Strickland’s prejudice standard to the facts is also an

argument that the state appellate court’s decision is “based on an unrea‐

sonable determination of the facts in light of the evidence presented in the

state court proceeding,” 28 U.S.C. § 2254(d), that argument is unavailing.

The Wisconsin Court of Appeals was critical that Felton’s citations did not

support particular assertions, were only partially true, or were completely

absent in support of certain claims. Because Felton’s brief was required to
No. 18‐1954 29

In support of his claim of prejudice, Felton further argues

that House’s testimony corroborated the State’s medical testi‐

mony and, in turn, the State’s medical testimony corroborated

House’s testimony. House’s testimony, however, did not cor‐

roborate the medical evidence in the way Felton asserts in his

brief. Without citation to the record, Felton repeatedly states

that House testified that Felton confessed to shaking and

slamming J.J. At trial, though, House never testified about

shaking, but rather testified that Felton “swung [the baby]

into the bathroom door.” Further, the habeas medical testi‐

mony did not undermine House’s testimony, and, in fact, was

supported in part by Dr. Plunkett’s testimony that J.J. could

have been struck with the same force as a three to four foot

fall. Even if the habeas medical experts had testified at trial

and Felton’s counsel had objected to the prosecutor’s closing

argument, it was not reasonably likely the jury’s decision

would have been different. Strickland, 466 U.S. at 696.  

Finally, as the Wisconsin Court of Appeals noted, counsel

presented evidence that others had “custody of [J.J.] on the

day he was admitted to the hospital,” and these alleged errors

did not affect that evidence. Similarly, the unfavorable trial

testimony about Felton was unaffected by these alleged er‐

rors. Id. (noting that some errors will not affect some of the

factual findings). Felton’s failure to tell anyone about J.J.’s slip

                                                 

contain “a statement of facts relevant to the issues presented for review,

with appropriate references to the record,” Wis. Stat. 809.19(1)(d) and

“[j]udges are not like pigs, hunting for truffles buried in the record,” Gross

v. Town of Cicero, 619 F.3d 697, 702 (7th Cir. 2010), the Wisconsin Court of

Appeals’s conclusion about a lack of prejudice was not unreasonable. See

generally United States v. Lewis, 594 F.3d 1270, 1275 (10th Cir. 2010) (“[I]t is

not this court’s duty to scour without guidance a voluminous record for

evidence supporting the government’s theory.”).  
30 No. 18‐1954

in the bathtub, including Sasha when she phoned from work

or the hospital physicians, his delay in telling the police J.J.

fell in the tub, testimony that he was goofing around while his

son was in the NICU suffering severe brain trauma, testimony

that Felton stated at the hospital that he did not want to go to

jail, testimony that he had limited experience caring for J.J. by

himself, and testimony he compelled his cellmate to sign a re‐

quest form he had written in an attempt presumably to un‐

dermine House were all unaffected by the errors that Felton

now alleges. And as we discussed above, the habeas medical

testimony would not have supported Felton’s claim about the

cause of J.J.’s injury. Accordingly, the Wisconsin Court of Ap‐

peals did not unreasonably conclude that Felton was not prej‐

udiced by counsel’s failure to object to the prosecutor’s state‐

ment and failure to call medical experts.  

III.

We AFFIRM the denial of Felton’s petition for a writ of

habeas corpus.