In the

United States Court of Appeals

For the Seventh Circuit

No. 06-3271

RONALD D. WILLIAMS,

Petitioner-Appellant,

v.

BRUCE LEMMON, Superintendent of the Wabash Valley

Correctional Facility,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:05-CV-624-LJM-WTL—Larry J. McKinney, Judge.

ARGUED OCTOBER 2, 2007—DECIDED MARCH 4, 2009

Before EASTERBROOK, Chief Judge, and MANION and

WILLIAMS, Circuit Judges.

PER CURIAM. An Indiana jury found Ronald Williams

guilty of murder, and the state trial court sentenced him to

75 years’ imprisonment. Williams’s conviction and sentence were upheld on direct appeal and on collateral

review in the Indiana courts. Williams then petitioned for

a writ of habeas corpus. The district court denied that
2 No. 06-3271

petition. We issued a certificate of appealability on the

question whether his trial counsel rendered constitutionally deficient assistance. On appeal Williams faults trial

counsel for failing to interview one of two other people

who arrived at the scene where the murder was committed.

I.

In May 1998 Matthew McGarvey traveled by car with

friends to a neighborhood in Indianapolis, Indiana, to buy

crack cocaine. When they arrived at approximately

11:00 PM, McGarvey left the car and went alone to make

his purchase. Within minutes he suffered a head injury

that caused his death. McGarvey’s friends were parked

roughly 200 feet from where he was beaten and did not

see or hear what happened. But Adair Smith and

Howard Deford, also looking to buy drugs that night, had

a better view.

Deford and Smith drove away after seeing McGarvey

on the ground; they did not call the police. Authorities

first learned about them several weeks later when a

detective went to Smith’s residence to question her livein boyfriend about an unrelated homicide. Smith wanted

to cooperate, hoping that it would help her boyfriend.

Knowing that the officer would be interested in information about the McGarvey murder, she volunteered that

she and Deford had happened upon the scene and witnessed McGarvey on the pavement surrounded by attackers. Williams, she said, struck McGarvey on the head with

a black metal pole while others punched and kicked him.
No. 06-3271 3

Police promptly asked Deford for his version of the

incident. Deford, who had been driving, said that the

attack had ended before he saw anything. All that he

could say of his own knowledge was that McGarvey was

prone on the street, while other men (the same people

who Smith had named) were laughing as they left. Despite

this denial of personal knowledge, he also narrated

details of the attack; according to Deford, Smith had

told him these details. Some of the details that Deford

furnished did not match those in Smith’s statement, but

Deford said that Smith had told him that “she’d seen a

bunch of guys kicking this guy on the street . . . [and] a

guy named Blackie [Williams] hit him with a pipe.”

Williams and five codefendants were charged with

murder. Smith was deposed about three weeks before

trial. Contradicting what she had told the detective, Smith

testified that McGarvey was still standing when she and

Deford turned a corner and saw him for the first time. All

of the defendants, she said, were kicking and punching

him, and he fell to the ground after Williams hit him on

the head with a black pole. Smith repeated several times

during her deposition that Deford had “seen it all,” but she

also maintained that “by law, he’s blind.” Although

Williams’s appointed counsel, Mark Inman, participated

in Smith’s deposition and had read Deford’s statement,

he did not interview or subpoena Deford.

The defendants were tried jointly, with Smith as the

state’s primary witness. At the February 1999 trial, Smith

repeated her assertions that she saw McGarvey “getting

beat up” by the defendants. Smith insisted that while
4 No. 06-3271

seated in Deford’s car she saw Williams hit McGarvey on

the head with a black pole. She also identified several other

attackers and specifically described how each punched,

kicked, or otherwise assaulted him. Smith conceded,

though, that she had been smoking crack and marijuana

on the night of the incident, and that she told the

detective initially that she saw seven men beating

McGarvey, not six as she said at trial. She conceded

that when first interviewed she told the detective that

McGarvey was on the ground, not standing, when she

and Deford arrived. Smith also admitted that she agreed

to speak with the detective in an effort to get her boyfriend “out of trouble.” Deford was not called by any

party. The jury found Williams guilty of murder. Four

of Williams’s codefendants were convicted of

involuntary manslaughter, and the other was acquitted.

Williams appealed, arguing that (1) the state’s evidence

was insufficient to support his conviction, (2) the trial

court abused its discretion in excluding evidence that

Smith had “previously worked for the State as a confidential informant while using drugs”; and (3) the trial

court should have dismissed the indictment because the

prosecutor waited until trial to disclose the notes of

police witnesses. The Court of Appeals of Indiana upheld

Williams’s conviction, as did the state supreme court. See

Williams v. State, 749 N.E.2d 1139 (Ind. 2001). The state

appellate court also upheld the convictions of his

codefendants. See Gardner v. State, 724 N.E.2d 624 (Ind.

App. 2000).

Williams petitioned the state judiciary for post-conviction relief, arguing that his trial counsel had furnished
No. 06-3271 5

ineffective assistance. Williams submitted an affidavit

from Deford averring that he would have testified favorably to Williams if he had been called at trial. The trial

court conducted a two-part evidentiary hearing on Williams’s petition. At the first part in March 2004, Inman

testified that he had not interviewed Deford because

Smith had said that Deford is legally blind. Nothing in the

record suggests that Inman independently verified this

allegation. At the hearing Inman stated that he typically

would not interview a potential witness whose testimony would be “inculpatory or . . . neutral.” But Inman

admitted that Deford’s statement to the police that his

knowledge of the murder was limited to what Smith had

told him contradicted her testimony that Deford had

witnessed the entire incident. Inman also conceded that

it would have made sense to interview Deford. When

asked whether he had any explanation for not contacting Deford, Inman replied that he did not.

Deford was subpoenaed but became ill, so at the second

part of the hearing in June 2004 Williams entered into

evidence the discovery deposition given by Deford on

April 20, 2004, during the post-conviction proceedings.

Deford had said in 1999 that he was working as a towtruck driver. Had he been called at Williams’s trial, he

said, he would have testified that neither he nor Smith

saw McGarvey being attacked. According to Deford,

Smith could not have seen the assault because McGarvey

was lying on the ground by himself when he and Smith

arrived at the scene; Deford said that he had assumed

that McGarvey was intoxicated. Deford acknowledged

that he saw a group of men, including one of Williams’s
6 No. 06-3271

codefendants, standing in the street that night, but he

said that the closest man “was about 10, 15 feet away” from

McGarvey. Deford wore thick eyeglasses during the

videotaped deposition, but he was not asked whether

his vision impaired his perception of the crime scene.

The trial court denied Williams’s petition for postconviction relief. The court reasoned that Deford’s testimony would not have changed the trial’s outcome

because his statement to the police in July 1998 that he “did

not actually see anything” conflicted with his deposition

testimony that Smith could not have seen the defendants

attack McGarvey. See Williams v. State, No. 49G03-9807-PC123641 (Marion Superior Ct. Aug. 9, 2004) (unpublished

decision). The court also declared that Deford’s deposition

testimony was “not credible, especially considering the

visual impairment he faces.” And, the court continued,

Deford’s absence had not prejudiced Williams because at

trial Smith was “impeached with her prior inconsistent

statements.” The Court of Appeals of Indiana agreed with

these conclusions. That court asserted that Inman “chose

not to investigate Deford because his testimony would

have been incriminating or neutral,” and concluded

that Inman’s decision was “a matter of trial strategy” it

would not second-guess. See Williams v. State, No. 49A04-

0409-PC-482 (Ind. App. Feb. 3, 2005) (unpublished decision). It follows, the court said, that Williams “failed to

establish prejudice because he did not demonstrate that,

but for counsel’s error, the result of the proceeding

would have been different.”

Williams then sought collateral review in federal court.

The district court observed that “Smith’s trial testimony
No. 06-3271 7

of Williams’ attack on McGarvey was devastating to

Williams. Any information casting doubt on Smith’s

account could have been useful to Williams’s defense.” But

the district court concluded that the Indiana court had

correctly applied Strickland v. Washington, 466 U.S. 688

(1984), and that it was not unreasonable for that court to

find that Inman’s decision not to call Deford did not

constitute deficient performance because his testimony

“would have been incriminating or neutral.” Quoting

the court of appeals’s conclusion, the district court determined that Williams failed to establish prejudice “because

he did not demonstrate that there was a reasonable probability that, but for trial counsel’s error, the result of the

proceeding would have been different.” The district

court therefore denied Williams’s petition.

II.

Williams maintains that he received ineffective

assistance because his lawyer did not interview Deford,

who, five years after the trial, said that he had not seen

Williams beat the victim and that Smith, the passenger

in his car who had identified Williams as an assailant,

could not have seen Williams do it. Although Williams

chastises his lawyer for this omission, he does not tell us

what his lawyer did do in his defense, and this is a big

omission.

When a prisoner seeks a writ of habeas corpus from a

federal court, the question is whether the state court

applied the Supreme Court’s precedents reasonably, not

whether it did so correctly. 28 U.S.C. §2254(d); Holland v.
8 No. 06-3271

Jackson, 542 U.S. 649 (2004) (discussing the statute and

the Court’s earlier decisions on the scope of review). Our

first question is whether single oversights by counsel

violate the sixth amendment. The answer is no. The

Supreme Court insists that judges must not examine a

lawyer’s error (of omission or commission) in isolation.

See, e.g., Strickland, 466 U.S. at 690–96. It is essential to

evaluate the entire course of the defense, because the

question is not whether the lawyer’s work was error-free,

or the best possible approach, or even an average one, but

whether the defendant had the “counsel” of which the

sixth amendment speaks. The Court has allowed for the

possibility that a single error may suffice “if that error is

sufficiently egregious and prejudicial.” Murray v. Carrier,

477 U.S. 478, 496 (1986). Lest this exception swallow the

rule, however, we must take the Justices at their word

and search for an “egregious” error—an omission of

something obviously better (in light of what was known

at the time) than the line of defense that counsel pursued.

But Williams does not contend that the state court acted

unreasonably in evaluating whether the error was “egregious” when compared with what Inman did for his client.

The state’s appellate court analyzed counsel’s entire

performance and observed that it included “consulting

with [Williams], formulating a theory of defense, conducting an investigation to support that theory, deposing

witnesses, objecting to jury instructions, cross-examining

the [State’s] witnesses, objecting to the admission of the

State’s evidence, moving for dismissal of the charge,

moving for a judgment on the evidence, and arguing

his theory of defense to the jury.” Counsel did enough to

give Williams a reasonable shot at an acquittal.
No. 06-3271 9

Would interviewing Deford obviously have been a

better use of time than the steps Inman actually took? The

state court did not act unreasonably in concluding that

interviewing Deford would not have seemed at the time

an obviously superior thing to do, because Deford had

been interviewed, by the police. What Deford said then

(in 1998) is that his entire description had come from

Smith—in other words, that Smith had seen the attack, and

he had not. Given the hearsay rule, this meant that Deford

had nothing useful to contribute. Lawyers preparing for

trial act sensibly in deciding not to re-interview witnesses who have already revealed that everything they

could say would be inadmissible.

There are two potential responses to this.

Perhaps there is a per se rule that lawyers always must

interview persons who were near the crime in order to

learn whether they are in fact eyewitnesses, whether or not

they have talked to the police. But the Supreme Court has

never announced such a rule, and under 28 U.S.C. §2254(d)

only the decisions of the Supreme Court are enforceable

on collateral review. What is more, this court has held

that no constitutional rule forbids lawyers from relying

on interviews conducted by the police when deciding

what additional inquiries are in order. Bieghler v. McBride,

389 F.3d 701, 708 (7th Cir. 2004).

The second potential reply is that what Deford told the

police in 1998 was inconsistent with what Smith said in

1998 (and with Smith’s testimony at trial in 1999). Yet the

conflict, if there was one, was in detail rather than substance. Deford told the police that he was just relaying
10 No. 06-3271

what Smith had told him she had seen. Deford may have

remembered Smith’s statements poorly, but the hearsay

rule forecloses this as a ground of examination. (Deford

may have seen a few things, such as the prone body,

independently; the point is that according to Deford’s

1998 version all details about who did what to whom

came from Smith.)

Only if Deford had told the police in 1998 that Smith

could not have seen what she claims to have seen would

there be a strong conflict, and thus a pressing need to

interview Deford. This is what Deford did say in 2004. But

in 1998 he said otherwise. The police inquired in 1998

whether Deford had any reason to doubt Smith’s ability

to see what had happened:

Officer: Did you ask [Smith] how she could see this?

Deford: No I did not.

Officer: Where did you assume that she saw this?

Deford: While we were sitting on 21st Street, making

a turn.

Officer: During that 2 minute time?

Deford: Yes.

Williams’s lawyer had this transcript, which gave him

every reason to think that an interview of Deford

would have been pointless. And the state court concurred.

Indiana’s judiciary concluded that counsel exercised

reasonable tactical judgment, and indeed that Deford’s

statement in 2004 was a recent fabrication: the trial judge

expressly found Deford not credible. This latter finding
No. 06-3271 11

means that, had Deford been called in 1999, a hearsay

objection would have prevented him from testifying. He

had no information useful to the defense—or so counsel

reasonably could have concluded. Whatever one may

say in retrospect, the state court did not exceed the

bounds of reasonableness in concluding that Inman

did not commit an “egregious” omission from 1999’s

perspective.

This is not to deny that Inman may have had reasons to

doubt whether Deford really was just passing along

Smith’s observations. How could she have seen the mêlée

and Deford not? But to pose such a question is not to

show that the state court’s disposition was unreasonable.

Deford was the driver and was looking where he was

going, at the road ahead of him, while Smith, a passenger,

could swivel her head to watch a fracas on the sidewalk.

Passengers often see things that drivers do not. And

Deford does not see very well. The record does not

disclose details about his peripheral vision at night.

Williams contends that Deford must have had at least 20/40

vision with the aid of glasses or contact lenses, because

that’s necessary for a commercial driver’s license (which

Deford would have needed to drive a tow truck, the

occupation he claimed to pursue), but (a) the record does

not show that Deford actually had such a license, (b) it

does not show that Deford was wearing his glasses at the

time in question, and (c) it does not even show that Deford

drove a tow truck. Deford said that he drove a tow truck,

but the state judiciary disbelieved him. If the record

contained some evidence corroborating Deford’s assertions, such as a commercial license or even a pay stub from
12 No. 06-3271

a tow-truck operator, then we might get an indirect

estimate of his visual acuity. But all we have is Smith’s

statement that Deford was legally blind, the observation

that he wore thick glasses at his deposition in 2004, and

Deford’s self-serving assertion that he could see well

enough. A federal court can’t assume the truth of

Deford’s testimony and use that assumption to override

the state court’s conclusion that he is not credible.

The state court made two vital findings of fact. One

is that Deford was lying in 2004. The other is that Inman

made a reasoned tactical decision not to interview Deford,

given what Deford already had said to the police. A state

court’s resolution of a factual dispute stands unless it

failed to develop the record fully and “clear and convincing evidence” demonstrates that an error occurred.

28 U.S.C. §2254(e).

We do not think that clear and convincing evidence

contradicts the finding that Deford was lying in 2004

about what he had seen, about whether Smith could have

seen what she said she had, and about how he would

have testified if called in 1999. Such a finding, if made by

a federal district judge on the existing record, would have

to be sustained on appeal. See Anderson v. Bessemer City,

470 U.S. 564 (1985) (discussing the standard under Fed. R.

Civ. P. 52). On review under Rule 52, a court of appeals

respects a credibility finding unless the judge has taken

a view inconsistent with the laws of physics or with

uncontradicted documentary evidence. Nothing of that

sort undermines the state judge’s conclusion that Deford

told the truth to the police in 1998 and lied at his deposi-
No. 06-3271 13

tion in 2004. The contradiction is itself all that’s needed to

support a credibility decision. That Deford has some kind

of visual impairment also is undisputed; there may be

doubt about how severe the impairment is, but its existence is real, and this too supports the credibility decision.

The standard under 28 U.S.C. §2254(e) is even more

favorable to the findings under review, but since these

findings would survive an appeal under Rule 52 they

must stand under §2254(e) as well.

As for the question whether Williams’s lawyer made a

tactical decision: at the post-conviction hearing, Inman

said that he did not remember the case well, or Deford’s

statement at all. Because he didn’t remember Deford’s

role, he could not give a specific reason for not interviewing him. But Inman added that he routinely interviewed anyone who appeared to have any evidence, but

that just as routinely he did not interview people who

did not seem to have exculpatory evidence. That’s the

basis of the state court’s inference that Inman made a

tactical decision not to interview Deford. A lawyer’s

description of his normal practice allows a state court to

conclude that he acted in accord with that practice. (This

is a routine inference, in tort law as well as post-conviction

review.) Williams’s current rendition of this as equivalent

to “counsel didn’t have a reason” is incorrect; that

Inman could not remember a reason is well short of the

proposition that he did not have one; we can not fault

the state court for concluding that counsel acted in

accord with his regular practice and thus had tactical

reasons for his decisions.
14 No. 06-3271

Williams argues as if this appeal were a replay of Stanley

v. Bartley, 465 F.3d 810 (7th Cir. 2006). He thinks

that Stanley establishes a rule that failure to interview any

potential witness leads to collateral relief automatically.

Stanley did not announce any such rule—and, if it had, it

could not be reconciled with §2254(d), which says that

only decisions of the Supreme Court may be enforced

against the states on collateral review. New rules, such

as “interview all potential eyewitnesses”, must be established on direct appeal; they can’t be devised by federal

courts of appeals and applied retroactively to set aside

the judgments of state courts. See, e.g., Carey v. Musladin,

549 U.S. 70 (2006); Wright v. Van Patten, 128 S. Ct. 743

(2008).

At all events, Williams misreads Stanley. That decision

relied heavily on the context of counsel’s omission. Stanley’s lawyer did nothing for him. The biggest omission

was to disdain an interview of a witness who counsel

knew (or should have known) to have exculpatory information. Counsel was not saving time on interviews in

order to do something better. To the contrary. Stanley’s

lawyer did not prepare for trial; he just showed up and

winged it. That’s ineffective assistance, when information in counsel’s possession suggested that some potential witnesses had exculpatory information. Here, by

contrast, (a) Inman did considerable preparation

before trial; and (b) Inman had in his hands an interview

of Deford implying that Deford did not possess exculpatory evidence. Our situation is a considerable distance

from Stanley on the dimensions that matter.
No. 06-3271 15

Unless counsel never can rely on statements taken by

the police, a state court does not act unreasonably when

holding that choices such as Inman’s fall short of ineffective assistance. Because the Supreme Court has not established such a per se rule we do not have a single “egregious” omission that spoils what was otherwise a competent defense. Given the state court’s findings of fact,

and the context of the complete work Inman did for his

client, the state judiciary’s decisions cannot be set aside

under the standard of §2254(d).

AFFIRMED

3-4-09