### In the



# United States Court of Appeals

For the Seventh Circuit

No. 15

‐ 2122

W ILLIAM H INESLEY

, III,

Petitioner

‐ Appellant

,

v.

W ENDY K NIGHT

, Superintendent,

Correctional Industrial Facility,

Respondent

‐ Appellee.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:14

‐ cv

‐ 1097

‐ JMS

‐ TAB

— Jane E. Magnus

‐ Stinson

, Judge.

A RGUED A PRIL 13, 2016

— D ECIDED S EPTEMBER 13, 2016

Before E ASTERBROOK

, M ANION

, and R OVNER

, Circuit Judges.

R OVNER

, Circuit Judge. Following a bench trial in Indiana

state court, William Hinesley, III, was convicted of molesting

his 13 year

‐ old former foster daughter, V.V. After exhausting

his state court remedies, Hinesley petitioned for a writ of

habeas corpus, contending that his trial counsel deprived him

of effective representation when he allowed the inculpatory2 No. 15

‐ 2122

out

‐ of

‐ court statements of the two principal witnesses against

him into evidence without objection and likewise posed no

objection to the admission of two statements in which wit

‐

nesses vouched for V.V.’s credibility. Hinesley also raised an

argument of cumulative ineffectiveness based on these and

other purported errors on the part of his lawyer. The district

court denied his petition. Hinesley v. Knight

, No. 1:14

‐ cv

‐ 1097

‐

JMS

‐ TAB, 2015 WL 1969643 (S.D. Ind. Apr. 29, 2015). We

affirm.

I.

Because there was no physical evidence of Hinesley’s guilt,

the State’s case rested almost entirely on the testimony of the

victim, V.V., and, to a lesser extent, her (former) foster brother,

William Hinesley, IV, who was known as Billy. Prior to trial,

both witnesses had made statements that conflicted with the

initial accounts they had given to the investigating detective.

It had also become known that V.V. and Billy were in a sexual

relationship with one another at the time of the charged offense

and, because that relationship was unlawful (given their

respective ages), they wanted to keep the relationship hidden.

When the case came to trial, it was defense counsel’s strategy

to allow all of the prior statements V.V. and Billy had made

into evidence without objection or limitation in order to lay

bare the inconsistencies in those statements and to argue that

neither witness was credible in view of the conflicts. The State

understood that this was the defense strategy and at trial

elicited the initial, inculpatory out

‐ of

‐ court statements of V.V.

and Billy at some length, with no objection by the defense.

Defense counsel also made no objection to the admission of

statements by the investigating detective and by Billy that theyNo. 15

‐ 2122 3

believed V.V.’s account. The defense took every opportunity to

highlight the ways in which V.V. and Billy subsequently had

changed their stories and to suggest that the investigation of

V.V.’s allegations was inadequate. The trial judge nonetheless

convicted Hinesley, finding that V.V.’s testimony was credible.

His counsel’s strategy having failed, Hinesley now contends

that his attorney was ineffective for permitting the State to

elicit the out

‐ of

‐ court statements of V.V. and Billy as substan

‐

tive evidence, rather than eliciting the statements himself on

cross

‐ examination as impeachment, and in allowing the two

instances of vouching by the State’s witnesses. These and

certain other omissions form the basis for a separate assertion

of cumulative ineffectiveness.

We begin with a summary of the facts relevant to

Hinesley’s conviction. V.V. had been taken into the Hinesley

family as a foster child. V.V. was happy in the Hinesley home,

but Hinesley’s wife Sharon eventually concluded that the

placement was not a good one, as there was some tension

between herself and V.V. In the autumn of 2008, V.V. was

removed from the Hinesley household and placed with

Hinesley’s parents. But V.V. continued to periodically visit

Hinesley and his family. (She is thus frequently described in

the record as Hinesley’s foster daughter notwithstanding the

change in placement.) V.V. was present for such a visit in the

Hinesley home on the evening of Friday, January 16, 2009,

when the assault underlying Hinesley’s conviction occurred.

The facts forming the basis for Hinesley’s conviction were

summarized by the Indiana Court of Appeals in affirming the

conviction on direct appeal:4 No. 15

‐ 2122

On the night of January 16, 2009, the Hinesley

family was at home in Paragon, Indiana.

Hinesley, his son, William J. Hinesley, IV

(“Billy”), who was twenty years old at the time,

a foster daughter, V.V., who was thirteen years

old at the time, and others were present.

Eventually, Hinesley and V.V. were the only

ones awake. They sat on a couch in the living

room and talked as they watched a movie. Next,

Hinesley got up and went into the kitchen.

When he returned, he approached V.V. and

pulled down her pants and underwear. Hinesley

got on top of V.V. and put his penis in her

vagina. After a short period of time, V.V. tried to

push Hinesley away, and he got up and left the

room. V.V. got up and pulled up her pants.

Meanwhile, Billy was going to the kitchen to get

a glass of water. He encountered V.V., who told

him that she had just had sex with Hinesley.

Billy sent V.V. to the master bedroom while he

woke his sister, S.H., and had her go into the

master bedroom with him and V.V. In the

morning, Billy contacted his uncle, who was a

police officer in Mooresville, Indiana, and the

local police were contacted.

Hinesley v. State

, 957 N.E.2d 217 (table), 2011 WL 5117056, at *1

(Ind. Ct. App. Oct. 27, 2011) (unpublished).

V.V. and Billy both gave videotaped statements the

following morning to Morgan County Sheriff’s Detective DanNo. 15

‐ 2122 5

Downing. V.V. described the events as recounted above. Billy

indicated in his statement that he had approached the living

room just as V.V. was pulling her pants up. He asked V.V.,

“[D]id I see what I thought I saw?” and V.V. nodded and told

him that he had. State Ex. 2 at 12:04. It was then that V.V.

informed him that Hinesley had sexually assaulted her.

What neither V.V. nor Billy disclosed to Downing was that

they were engaged in a sexual relationship with one another.

In fact, although she did not yet know it, V.V. was pregnant

with Billy’s child (she gave birth in August 2009) at the time of

the assault by Hinesley. The relationship between V.V. and

Billy is described as consensual, but given their respective

ages, it constituted child molestation as a legal matter. Billy

would eventually plead guilty to that offense once the

relationship came to light.

Subsequently, both V.V. and Billy made statements that

were either wholly or partially inconsistent with what they had

told Downing. One week after the incident, V.V. told

Hinesley’s mother that she had made the whole thing up.

When later deposed by defense counsel in advance of trial,

V.V. acknowledged the recantation but then testified that

Hinesley had, in fact, assaulted her. But she also professed

uncertainty as to certain key details of the assault, including

whether Hinesley had actually placed his penis into her

vagina. Billy was also deposed prior to trial, and during his

deposition he said that he could no longer remember whether

he had seen V.V. pulling up her pants in the immediate

aftermath of the incident.6 No. 15

‐ 2122

As we have said, there was no physical evidence

confirming V.V.’s account of the assault. Both V.V. and

Hinesley were examined on the morning after the assault, but

in neither case was the presence of DNA from the other

individual detected. 1 On the other hand, Hinesley had shaved

the pubic hair from his body at some point prior to his exami

‐

nation (he would later testify that he and his wife both did this

as a matter of routine). Also, during a search of the Hinesley

home on the morning after the incident, police discovered a

pair of still

‐ wet pajama pants and underwear in the dryer by

themselves, despite there being dirty clothing piled in the

hallway nearby and throughout the house. Hinesley had been

wearing pajama pants and underwear the previous evening,

although police were unable to determine whether the pajamas

and underwear in the dryer were the ones Hinesley had been

wearing.

On the morning of trial, the State offered to drop the

multiple child molestation charges against Hinesley if he

agreed to plead guilty to a misdemeanor charge of battery,

with credit for the time Hinesley had already served in jail

prior to trial along with a period of probation, and with no

1 Oddly, the written summary of V.V.’s examination indicated that her

hymen was intact. That report was not introduced into evidence at trial,

possibly because Hinesley’s trial counsel never saw the report. (Neither the

prosecutor nor defense counsel could later recall whether the report had

been possessed by the State and produced in discovery.) In this appeal,

Hinesley has cited counsel’s apparent failure to obtain a copy of the

report—and in any event, his failure to introduce it at trial—not as a

freestanding instance of purported ineffectiveness but rather as one of the

grounds for his argument of cumulative ineffectiveness.No. 15

‐ 2122 7

requirement that he register as a sex offender. Hinesley

rejected the offer against his attorney’s advice.

The case proceeded to trial on three child molestation

charges: (1) that Hinesley had engaged in sexual intercourse

with a child less than 14 years of age, in violation of Indiana

Code § 35

‐ 42

‐ 4

‐ 3(a)(1), then a Class A felony 2 ; (2) that he had

engaged in deviate sexual conduct with a child under 14 years

of age, in violation of the same statute, again a Class A felony;

and (3) that he had touched or fondled a child under 14 years

of age with intent to arouse or satisfy the sexual desires of

either himself or the child, in violation of § 35

‐ 42

‐ 4

‐ 3(b), a Class

C felony. The State previously had dismissed a fourth charge—

that Hinesley had touched or fondled his biological daughter,

S.H. The parties agreed that the case would be tried to the

bench.

As we have mentioned, it was defense counsel’s strategy to

elicit all of the various pre

‐ trial, out

‐ of

‐ court statements that

both V.V. and Billy had made so as to establish the changing

nature of their accounts and to suggest that they were not

credible as to the alleged assault by Hinesley. Defense counsel

thus posed no objection when, during the State’s case, the

prosecution asked both Downing and Billy to recount certain

out

‐ of

‐ court statements that both V.V. and Billy had made. We

shall return to these statements after we first summarize the

trial testimony of witnesses Downing, V.V., and Billy.

Downing was the first of these witnesses to testify for the

State. He described his interviews of both V.V. and Billy, and

2 The classification system for felonies in Indiana has since changed.8 No. 15

‐ 2122

recounted in full what they had told him about the assault.

During his testimony, the video recording of Billy’s 30

‐ minute

interview was played for the court in its entirety.

V.V. was the second of these witnesses to take the stand.

She testified, consistently with her original statement to

Downing, that after she and Hinesley were left alone in the

living room of the Hinesley residence on the evening of

January 16, 2009, the two of them watched a movie, with V.V.

resting her head in Hinesley’s lap. At some point, Hinesley had

gotten up and gone into the kitchen. When he returned to the

living room, he pulled down her pajama pants and underwear,

placed himself on top of her, pinned down her shoulders,

penetrated her vagina with his penis, and began to have

intercourse with her. Stunned and not knowing at first what to

do, V.V. after a moment “got a hold of [her]self,” told Hinesley

she wanted to go to bed, shoved him off of her, and then

pulled up her pants. Tr. 117. As V.V. prepared to leave the

room, she saw Billy in the nearby hallway, and he beckoned

her over to him with a gesture. V.V. testified that Billy was

“freaking out kind of, like he was upset and mad,” Tr. 118, and

he asked her if he had just seen what he thought he saw. She

told him yes. At that point, he directed her to the master

bedroom, where she informed Billy, using slang terminology,

that Hinesley had sexually assaulted her.

On cross

‐ examination, V.V. was confronted with the

multiple statements she had made prior to trial that were

inconsistent with her testimony (and her original interview

with Downing). She acknowledged the recantation she had

made to her foster grandmother one week after the incident;

that recantation, she said, was a lie. She acknowledged that atNo. 15

‐ 2122 9

her deposition, she had expressed an inability to recall whether

Hinesley had placed his penis into her vagina. At first, she

confirmed that she was uncertain about this point at the time

of her deposition. Ultimately, however, she conceded that her

professed inability to recall was a lie. She acknowledged

having lied about various other points during her deposition.

She also admitted that she was engaged in a sexual relation

‐ ship with Billy at the time of the assault and that she knew it

was wrong.

Billy reiterated at trial that V.V. told him his father had

sexually assaulted her, but he professed uncertainty as to

whether he had seen V.V. pulling up her pants as he had told

Downing he had on the day after the incident. Although he

recalled what he had told Downing, Billy testified that “[a]t

this point in time I do not remember what I saw.” Tr. 170.

When pressed on that point by defense counsel, he allowed

that he “could have” lied about that to Downing, Tr. 179, and

agreed with Hinesley’s attorney that “there’s a good chance

that [he] didn’t see anything at all,” Tr. 178. He acknowledged

that when he was interviewed by the police, he knew that he

himself could be charged criminally for his conduct with V.V.,

was afraid of being exposed, and that he had lied to the police

about his relationship with V.V. Billy was otherwise a hesitant

witness who repeatedly claimed a lack of recollection as to

various points and often gave inaudible answers to questions.

Hinesley himself testified in his own defense. He denied

that he had ever molested V.V. He further denied that he had

ever been alone with V.V. on the night in question.10 No. 15

‐ 2122

Having summarized the testimony of the principal wit

‐

nesses at Hinesley’s trial, we now pause to focus on certain of

the out

‐ of

‐ court statements that came into evidence while

Downing and Billy were on the witness stand. These are the

inculpatory statements that form the basis for Hinesley’s first

(and principal) argument that his trial counsel was ineffective.

Downing’s summary of V.V.’s interview

As we have noted, Downing summarized the interviews he

conducted of both V.V. and Billy on the morning after the

assault. With respect to his interview of V.V., Downing

testified, “[V.V.] then stated that [Hinesley] made penetration

into her vaginal area[,]” and similarly, “At that point in time

she stated that Mr. Hinesley told her to pull her pants down, at

which point in time he inserted

... his penis into her vagina.”

Tr. 25.

Downing also reiterated later in his testimony that V.V. had

advised him that the assault by Hinesley involved “actual

penetration.” Tr. 28. (We note that V.V.’s interview, like Billy’s,

was videotaped, but the videotape of her interview was not

played at trial.)

Downing’s summary of Billy’s interview

Summarizing Billy’s original statement, Downing testified

in relevant part that “[Billy] asked [V.V.] if he seen what he

thinks he

... or if he seen what he thought he had saw, and

[V.V.] said, yes.” Tr. 18.

Billy’s videotaped statement

As we have noted, the videotape of Billy’s interview with

Downing was played during Downing’s testimony. HinesleyNo. 15

‐ 2122 11

highlights two statements from that interview. First, Billy

recounted that upon entering the living room, “I asked [V.V.].

All I said was

... did I see what I thought I saw? She nodded

and said yes.” State Ex. 2 at 12:04. Second, in describing his

follow

‐ up conversation with V.V., Billy said, “I guess I asked

her did he touch you in some spot. She said yes. And

... she

told me that he entered her.” State Ex. 2 at 12:39.

Billy’s testimony as to what V.V. told him

Finally, at trial, Billy testified that “[V.V.] told me that they

had sexual intercourse.” Tr. 194.

These out

‐ of

‐ court statements (some of which constituted

hearsay within hearsay) were presumptively inadmissible for

the truth of the matters asserted therein. See Ind. R. Evid.

801(c), 802. The prosecutor testified at Hinesley’s post

‐ convic

‐

tion hearing that she understood the statements to be admissi

‐

ble, at least in part, in order to explain the course of Downing’s

investigation. But see Craig v. State

, 630 N.E.2d 207, 210

‐ 11 (Ind.

1994) (out

‐ of

‐ court statements made to police offered to

explain course of investigation lack relevance when the defense

does not dispute what investigating authorities were told or

the propriety of the steps they took); see also Maxey v. State

,

730 N.E.2d 158, 161

‐ 62 (Ind. 2000). However, the prosecutor

also testified that based on her pre

‐ trial discussions with

defense counsel, she understood it would be the defense

strategy to elicit and/or allow the admission of these same out

‐

of

‐ court statements in order to highlight the inconsistencies

and to challenge the credibility of V.V. and Billy. In any case,

Hinesley’s position is that once the statements were elicited

without objection, the trial judge as the factfinder was free to12 No. 15

‐ 2122

consider them as substantive evidence for any purpose. See

Marcum v. State

, 725 N.E.2d 852, 863 (Ind. 2000) (in examining

trial record for sufficiency of evidence supporting defendant’s

conviction, reviewing court may consider otherwise inadmissi

‐

ble evidence admitted without objection as substantive

evidence) (quoting Humphrey v. State

, 680 N.E.2d 836, 840 (Ind.

1997)).

In addition to the various out

‐ of

‐ court statements, there

were two instances in which the State’s witnesses expressed

their opinion as to the credibility of V.V. Downing was the

source of one of these opinions and Billy, in his videotaped

statement to Downing, was the source of the other. In neither

instance did defense counsel raise an objection to the relevant

statement, and as we discuss below, Hinesley asserts that the

failure to object allowed these two witnesses to improperly

vouch for V.V.’s credibility. Here are the two statements in

question:

Downing

. In the course of Downing’s testimony, the State

at one point asked Downing to describe V.V.’s demeanor

during the interview on the morning after the assault.

Downing responded:

Relatively childlike. She was very

protected, very guarded. She acted

much younger than

... than her

physical age. But she seemed very

believable. I didn’t see any reason

not to believe her statements, espe

‐ cially due to the fact they were

corroborated by

... by Billy.No. 15

‐ 2122 13

Tr. 23.

Billy

. Billy’s statement as to V.V.’s credibility was uttered

in the course of his videotaped interview rather than during

his trial testimony. Near the end of that interview, Billy had

remarked to Downing: “I don’t believe she made this up.”

State’s Ex. 2 at 28:52.

At the conclusion of the State’s case, the court dismissed

two of the three charges against Hinesley—the deviate sexual

conduct charge and the touching or fondling charge. The State

had conceded that there was no evidence to support the former

and that the latter was based solely on V.V.’s testimony that

intercourse had occurred.

At the conclusion of the defense case (there was no rebuttal

by the State), and after hearing closing arguments, the judge

convicted Hinesley on the Class A felony charge that he had

molested V.V. The judge remarked that defense counsel had

done “an excellent job” in pointing out the inconsistencies in

the various statements of the State’s witnesses. Tr. 277. How

‐

ever, the judge went on to note that in opting for a bench trial,

the parties had “left it in [her] bailiwick” to make credibility

determinations, Tr. 278, and she expressly found V.V.’s

testimony to be credible. She later sentenced Hinesley to a

prison term of 30 years, 5 of which are to be served as proba

‐

tion.

After his conviction was affirmed on direct appeal,

Hinesley sought post

‐ conviction relief, alleging principally that

his trial counsel had been ineffective in various respects. As

relevant here, he contended that counsel erred in allowing the

prior out

‐ of

‐ court statements of both V.V. and Billy into14 No. 15

‐ 2122

evidence without objection or limitation and in allowing both

Downing and Billy to vouch for V.V.’s credibility. Hinesley’s

petition was assigned to the same judge who had presided

over the trial and convicted him. She convened an evidentiary

hearing on the petition, at which Hinesley’s trial counsel,

Daniel Vandivier, testified. Vandivier explained that it was the

defense theory that V.V. and Billy, for ulterior reasons (includ

‐ ing the effort to hide their own relationship), had fabricated the

alleged assault. In pursuit of that theory, it was Vandivier’s

goal to highlight all of the inconsistencies in the various

statements that V.V. and Billy had given about the assault.

Toward that end, Vandivier opted to forego any hearsay

objections when the State’s witnesses were asked to repeat

certain of these out

‐ of

‐ court statements. As to the vouching,

when specifically confronted at the hearing with Downing’s

testimony regarding V.V.’s credibility, Vandivier did not have

a specific recollection as to why he did not object to that

testimony; but he indicated that he may have withheld

objection in order to argue that Downing gave unquestioning

acceptance to V.V.’s account from the start and consequently

never conducted an adequate investigation into what did or

did not occur. He also believed that Downing’s observation

that V.V.’s statements were corroborated by Billy rendered

Downing’s credibility assessment vulnerable, given that Billy

no longer stood behind his initial statement that he saw V.V.

pulling her pants up after the assault.

The trial judge denied Hinesley’s request for post

‐ convic

‐

tion relief. The trial court found that “Mr. Vandivier’s failure

to object to hearsay evidence from the various witnesses

during the trial was a trial strategy and was reasonable underNo. 15

‐ 2122 15

the unique circumstances of this case[.]” R. 14

‐ 4 at 60 ¶ 11. The

court added that regardless of any hearsay admitted into

evidence, its own determination that V.V. was a credible

witness and that she testified truthfully regarding the assault

was sufficient to uphold Hinesley’s conviction regardless of

any hearsay admitted into evidence without objection. R. 14

‐ 4

at 60 ¶ 12. (The court did not expressly address the vouching

statements in her findings.)

The Indiana Court of Appeals affirmed. Hinesley v. State

,

999 N.E.2d 975 (Ind. Ct. App. 2013). With respect to the out

‐ of

‐

court statements that were not objected to, the court pointed

out that “Hinesley concedes that the hearsay evidence was

admissible for impeachment purposes, and therefore the

evidence was going to be admitted in one form or another.” Id.

at 984. The court found no error in the trial court’s conclusion

that defense counsel’s decision to allow the statements into

evidence without limitation as part of a broader strategy to lay

out all of the inconsistencies in the statements made by V.V.

and Billy was a reasonable trial strategy. Id. It pointed out that

counsel’s strategy may have been partially successful to the

extent that the trial judge had dismissed the other two child

molesting counts. Id. As to the vouching, the court noted that

although Vandivier was not able to specifically explain his

reasons for not objecting, courts typically do not insist that

counsel confirm each aspect of their trial decisions. Id. at 985.

The court found that Vandivier’s decision not to object to the

vouching was consistent with his overall trial strategy “and

was not unreasonable under the circumstances.” Id. It added

that because the case had been tried to the bench, the usual

concern regarding the influencing that vouching might have16 No. 15

‐ 2122

upon on the jury was not present. Id. In any event, the court

was not convinced that the vouching prejudiced Hinesley.

“[T]he record reveals that the two statements were isolated and

not pervasive and did not affect the outcome of the trial. We

are unpersuaded that but for counsel’s failure to object to the

alleged improper vouching statements, there is a reasonable

probability that the verdict would have been different.” Id. at

985

‐ 86.

Finally, the court disposed of Hinesley’s additional allega

‐

tion of cumulative ineffectiveness—based on the foregoing and

other omissions—on the ground that he had not established

prejudice. The court noted that Indiana’s judicial temperance

doctrine presumes that a trial judge sitting as the factfinder

knows the law and relies solely on relevant and probative

evidence that is properly before the court in rendering his

decision. Id. at 987 (citing Konopasek v. State

, 946 N.E.2d 23, 28

(Ind. 2011), and Conley v. State

, 972 N.E.2d 864, 873 (Ind. 2012)).

In the court’s view, Hinesley had not rebutted that presump

‐

tion. The trial judge, in denying Hinesley’s post

‐ conviction

petition, indicated that she had found V.V. credible in her

account of the offense regardless of any hearsay that Vandivier

had allowed into evidence without objection. Id. The fact that

she dismissed two of the three counts against Hinesley bore

her out, given that the only evidence supporting those charges

was found in Downing’s testimony as to what V.V. had told

him. Id. at 987

‐ 88. And although the judge did not similarly

disclaim any reliance on the vouching statements, the appellate

court found no reason to believe that she had. Id. at 988. In this

case, there was no person better situated to assess whether

Hinesley had been harmed by his trial counsel’s strategy thanNo. 15

‐ 2122 17

the trial judge herself. The fact that she found no reasonable

probability that the trial might have turned out differently had

counsel pursued a different strategy was entitled to a greater

than usual degree of deference, in the appellate court’s view.

Id.

Hinesley sought review in the Indiana Supreme Court, but

that court denied his petition for transfer. Hinesley v. State

,

7 N.E.3d 933 (Ind. May 1, 2014).

Hinesley then petitioned for relief in the district court

pursuant to 28 U.S.C. § 2254. The district court denied his

petition. 2015 WL 1969643. In relevant part, the court deter

‐

mined that the state courts had not unreasonably applied

Supreme Court precedent in rejecting Hinesley’s ineffective

‐

ness claim as to the uncontested admission of hearsay and as

to the vouching remarks by Downing and Billy. Id. at *3

‐ *4.

“[T]he Indiana Court of Appeals ‘took the constitutional

standard seriously and produced an answer within the range

of defensible positions.’” Id. at *4 (quoting Mendiola v. Schomig

,

224 F.3d 589, 591 (7th Cir. 2000)). The court found that it was

precluded from considering the resolution of Hinesley’s

allegation of cumulative ineffectiveness, as that claim was

procedurally defaulted. Id. at *3.

II.

Hinesley’s appeal pursues each of the three iterations of

ineffectiveness that we have mentioned: that his counsel, by

voicing no objection to the out

‐ of

‐ court statements of V.V. and

Billy, improperly allowed those statements into evidence

without limitation; that his counsel likewise allowed Downing

and Billy to vouch for V.V.’s credibility without objection; and18 No. 15

‐ 2122

finally that these and certain other omissions cumulatively

deprived Hinesley of his right to the effective assistance of

counsel. We review the district court’s decision to deny relief

on Hinesley’s claim of ineffective assistance de novo. E.g.

, Ruhl

v. Hardy

, 743 F.3d 1083, 1090 (7th Cir. 2014).

Like the district court, we must observe the constraints of

section 2254 in evaluating the claim of ineffective assistance of

counsel. As relevant here, the statute precludes a federal court

from granting relief in habeas unless the state court’s resolu

‐

tion of the claim “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States[.]” § 2254(d)(1). There can be no contention that

the Indiana appellate court—the last state court to address

Hinesley’s claim on its merits—resolved his ineffectiveness

claim in a manner “contrary” to clearly established federal law:

the court recognized Strickland v. Washington

, 466 U.S. 668,

104 S. Ct. 2052 (1984), as the controlling precedent and applied

its familiar two

‐ pronged framework. See Bell v. Cone

, 543 U.S.

447, 452

‐ 53, 125 S. Ct. 847, 851 (2005) (per curiam) (citing

Williams v. Taylor

, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519 (2000))

(state court’s decision is “contrary to” federal law if, inter alia,

court applies rule that contradicts governing law set forth in

Supreme Court cases). Hinesley’s habeas petition is instead

premised on the contention that the Indiana appellate court

unreasonably applied Strickland

.

Strickland itself requires that a convicted individual make

two showings in order to prove that he was deprived of his

right to effective assistance of counsel. First, he must show that

his counsel’s performance was deficient, that is, that hisNo. 15

‐ 2122 19

attorney made errors so serious that he was not functioning as

the counsel guaranteed to him by the Sixth Amendment.

466 U.S. at 687, 104 S. Ct. at 2064. In deciding whether the

petitioner has made this showing, we must avoid “the distort

‐ ing effects of hindsight” and instead assess his counsel’s

performance against the circumstances that confronted counsel

at the relevant time—here, the trial. Id. at 689, 104 S. Ct. at 2065.

Recognizing that “[t]here are countless ways to provide

effective assistance in any given case,” we must indulge a

strong presumption that counsel’s representation falls within

a wide range of reasonable representation; and it is, of course,

the petitioner’s burden to overcome that presumption. Id. at

689

‐ 90, 104 S. Ct. at 2065

‐ 66. Second, the petitioner must show

that he was prejudiced by his counsel’s ineffective representa

‐

tion, i.e., that he was deprived of a fair trial whose result is

reliable. Id. at 687, 104 S. Ct. at 2064. Specifically, he must

demonstrate that there is a reasonable probability that but for

his counsel’s unprofessional errors, the result of the trial would

have been different. Id. at 694, 104 S. Ct. at 2068. “A reasonable

probability is a probability sufficient to undermine confidence

in the outcome.” Id.

, 104 S. Ct. at 2068.

In order for us to conclude that the Indiana appellate

court’s application of Strickland was unreasonable for purposes

of section 2254, it is not enough that we might disagree with

that court’s rationale. “Over and over, the [Supreme] Court has

stressed that ‘an unreasonable application of federal law is

different from an incorrect application of federal law.’” Ward v.

Neal

, No. 16

‐ 1001, 2016 WL 4492479, at *3 (7th Cir. Aug. 26,

2016) (quoting Harrington v. Richter

, 562 U.S. 86, 101, 131 S. Ct.

770, 785 (2011)) (emphasis in Richter ). “The Richter court20 No. 15

‐ 2122

elaborated that “a state prisoner must show that the state

court’s ruling on the claim being presented in federal court was

so lacking in justification that there was an error well under

‐

stood and comprehended in existing law beyond any possibil

‐ ity for fairminded disagreement.’” Id. (quoting Richter

, 562 U.S.

at 103, 131 S. Ct. at 786

‐ 87).

Our review is therefore “doubly deferential,” Knowles v.

Mirzayance

, 556 U.S. 111, 123, 129 S. Ct. 1411, 1420 (2009), in the

sense that Strickland ’s inquiry is “highly deferential” to a

lawyer’s plausible strategic choices, 466 U.S. at 689, 104 S. Ct.

at 2065, and our review under section 2254(d) is likewise

“highly deferential” to the state courts that resolved Hinesley’s

ineffectiveness claim in the first instance, Burt v. Titlow

,

134 S. Ct. 10, 15 (2013).

With these standards in mind, we turn to the first respect in

which Hinesley contends his trial counsel was ineffective.

Hinesley maintains that it was unreasonable for Vandivier not

to object on hearsay grounds to the admission of the out

‐ of

‐

court statements made by V.V. and Billy to Downing at the

outset of his investigation. Vandivier testified that he made the

decision not to object because his strategy was to lay out the

multiple inconsistencies in the various statements V.V. and

Billy had made and thus to convince the trial judge that neither

of them should be credited. The Indiana Court of Appeals, of

course, found that this was a reasonable if unsuccessful

strategy, and that Hinesley was not, in any event, prejudiced

by the admission of these statements into evidence. For

multiple reasons, the Indiana court’s resolution of this point

was not an unreasonable application of Strickland

.No. 15

‐ 2122 21

First, it bears noting that it has been undisputed throughout

this litigation that these out

‐ of

‐ court statements would have

been admissible—and, pursuant to defense counsel’s strategy,

would have been elicited—along with the other statements that

V.V. and Billy made in order to show how their accounts

changed over time and thus to impeach their credibility. So it

is not Hinesley’s position that the defense should have fought

to exclude these statements altogether. Rather, Hinesley’s

objection is that by remaining silent as the State introduced

these statements through Downing and later Billy, defense

counsel allowed the statements into evidence with no limita

‐

tion, so that the trial judge as the factfinder could consider

them for their truth. Secondarily, Hinesley posits that allowing

the State to elicit these statements in the first instance enabled

the prosecution to present the strongest version of its case at

the outset of the trial: Downing was able to recount what V.V.

and Billy told him about the assault (and indeed Billy’s

interview was played in full) without their accounts being

subject to cross

‐ examination until they each took the witness

stand later in the case. But, again, Hinesley is not suggesting

that the factfinder should never have been exposed to these

statements (although he does say that the video recording of

Billy’s interview should never have been played); he is arguing

that his counsel should not have permitted the statements to

have been elicited by the prosecutor and without limitation on

the purposes for which they could be considered.

Second, as the two percipient witnesses, it was a given that

both V.V. and Billy would testify in the State’s case and that

they would give accounts similar to, if not precisely the same

as, the accounts they had given to Downing in their original22 No. 15

‐ 2122

statements. 3 To be sure, both had wavered in their accounts in

advance of trial, with V.V. having recanted her accusation

entirely at one point and Billy having disclaimed any memory

of what he might have seen. But at their pre

‐ trial depositions,

V.V. had repeated her core accusation that Hinesley raped her,

and Billy had confirmed what V.V. had told him about that

assault. It was a reasonable assumption that they would do so

again at trial. So from the defense perspective, there was little

to be lost by allowing the State to elicit their original state

‐

ments. The statements, at worst, would preview (and dupli

‐ cate) their trial testimony.

Of course, as trial witnesses, both V.V. and Billy would be

subject to cross

‐ examination as to the content of their out

‐ of

‐

court statements. Indeed, that was the point of the defense

strategy—to open the door to these and all of the other

statements the two had made about events and to showcase all

of the inconsistencies among them for the judge during cross

‐

examination and argument. Given that their prior statements

would be elicited in one way or another, it was not unreason

‐

able for defense counsel to allow the State to elicit them in the

first instance.

And with one material exception, V.V. and Billy did not

deviate in their trial testimony from the pre

‐ trial statements

that are at issue here. To that extent, these statements were

3 There were certain minor inconsistencies between their original state

‐

ments to Downing and their trial testimony. For example, at trial, V.V.

testified that Hinesley had pulled her pajama pants down during the

assault, whereas she had told Downing that Hinesley had directed her to

pull them down.No. 15

‐ 2122 23

simply cumulative of what these two witnesses recounted at

trial. The one exception was Billy’s statement (or rather

question) to V.V.: “Did I see what I think I saw?” That state

‐

ment, of course, suggested that Billy had seen V.V. pulling up

her pants in the immediate aftermath of the assault (as, indeed,

Billy had told Downing he had), and lent an important degree

of corroboration to V.V.’s account—assuming it withstood

scrutiny. But although Billy made that statement in his

videotaped interview with Downing, he thereafter backed

away from it. At trial, Billy not only reiterated that he had no

recollection of what he may have seen, but admitted that

“there’s a good chance that [he] didn’t see anything at all,”

Tr. 178, and that he “could have” lied when he told Downing

that he had seen something, Tr. 179. If anything, the admission

of this statement/question served to highlight the degree to

which Billy had backtracked from his initial interview and was

unwilling to stand by the veracity of what he had told

Downing.

Consistent with his declared strategy, counsel did drive

home each and every one of the inconsistencies among the

statements that V.V. and Billy had made over time. Vandivier

advised the judge in his opening statement that she was “going

to hear inconsistent statement after inconsis[tent] statement,”

Tr. 6, and he made good on that promise. His cross

‐ examina

‐

tion of both witnesses was thorough, and in fact, both V.V. and

Billy freely acknowledged the differences in the statements

they had made over time.

Under these circumstances, we can by no means say that

the Indiana Court of Appeals was unreasonable in concluding

that counsel’s strategy was not ineffective. Counsel had the24 No. 15

‐ 2122

benefit of a pre

‐ trial run

‐ through with both V.V. and Billy at

their depositions and knew what the inconsistencies in their

statements were and, also, that they would acknowledge them.

The risks of allowing the prosecution to elicit their original

statements, and without limitation as to the purpose for which

those statements could be considered, were low. With the

judge serving as the trier of fact, it was unlikely that undue

weight would be given to the witnesses’ out

‐ of

‐ court state

‐

ments as opposed to their in

‐ court testimony. The judge would

understand that a witness’s testimony given under oath, in the

judge’s presence, and subject to cross

‐ examination is the most

relevant substantive evidence and manifestation of his candor,

and that his out

‐ of

‐ court statements are principally relevant to

the extent they show consistency or inconsistency in the

accounts he has given over time. There is no disagreement that

the defense had to elicit each of the witnesses’ out

‐ of

‐ court

statements in order to expose the significant inconsistencies

among those statements; how the statements were elicited

ultimately would not have mattered much, if at all, to the

factfinder.

Nor did the state court conclude unreasonably that

Hinesley suffered no prejudice from his counsel’s decision not

to object or attempt to limit the use of the statements, even

assuming the strategy was faulty. As we have already made

clear, there was only one instance in which the out

‐ of

‐ court

statements were not cumulative of the trial testimony of V.V.

and Billy, and that was in Billy’s purported question to V.V.:

“Did I see what I think I saw?” But as we have already dis

‐

cussed, that question hardly hurt the defense, given Billy’s

dual admissions on the witness stand that he no longer recalledNo. 15

‐ 2122 25

what, if anything, he had seen and, more importantly, that he

may have lied when he told Downing that he saw V.V. pulling

up her pants. Yes, allowing the State to elicit such statements

on direct examination of its witnesses (Downing, principally)

enabled it to put on a somewhat more straightforward and

stronger case at the start of the trial, in the sense that it was

able to lay out the case as it was presented to Downing. But

any advantage that may have given the State was short

‐ lived,

given defense counsel’s relentless cross

‐ examination of both

V.V. and Billy as to the significant retractions and inconsisten

‐

cies in their accounts. In the end, the judge chose to believe

V.V. and the account she gave. It strains credulity to think that

she might have rendered a different credibility assessment had

the defense elicited each of the out

‐ of

‐ court statements as

impeachment, on cross

‐ examination, rather than allowing the

State to elicit some of these statements in the first instance and

without limitation. One may quibble, as Hinesley does, with

the particular words the judge used when she rejected

Hinesley’s argument on this point at the post

‐ conviction stage

(she said her credibility finding as to V.V. “[wa]s sufficient” to

uphold Hinesley’s conviction “regardless of any hearsay

admitted without objection,” R. 14

‐ 4 at 60 ¶ 12, rather than

saying explicitly that the hearsay did not materially affect her

decision), but the clear import of her finding was that V.V.’s

credible testimony in court was what was essential to her

decision to convict Hinesley. That is what the Indiana Court of

Appeals understood the judge to mean, 999 N.E.2d at 987

‐ 88,

and that is an entirely reasonable interpretation of her finding.

Our discussion of the vouching question may be brief. Even

if we were to agree with Hinesley that there was no plausible26 No. 15

‐ 2122

strategic reason to allow the vouching statements into evi

‐

dence, Hinesley’s ineffectiveness argument would nonetheless

fail for want of prejudice. See Strickland

, 466 U.S. at 697,

104 S. Ct. at 2069 (court need not decide whether counsel was

ineffective before turning to whether defendant was preju

‐ diced). The two statements—one in court, one out of court–

were isolated, were not belabored, were not cited by the State

in its closing argument, and were highly unlikely to have

influenced the judge’s assessment of guilt. It was no surprise

that Downing believed V.V.—the course of his investigation

demonstrated that belief just as clearly as his statement did. If

anything, his statement lent itself to the point the defense was

making at trial—that Downing too soon accepted V.V.’s

account at face value, not realizing that V.V. and Billy were

engaged in an illicit relationship and shared an incentive to

keep that relationship hidden from the authorities. It was

likewise unremarkable that Billy would say he believed V.V.,

given that the two of them were intimately involved with one

another. What would have mattered to the judge in deciding

whether to believe V.V. was not the impressions of Downing

and Billy but rather the credibility of V.V.’s testimony at trial

in the presence of the judge, which is what the prosecutor

herself focused on in closing.

Hinesley last contends that the state courts improperly

rejected his contention that his counsel was cumulatively

ineffective; but we agree with the district court that Hinesley

did not give the state courts a full and fair opportunity to

address the claim. See Duncan v. Walker

, 533 U.S. 167, 178

‐ 79,

121 S. Ct. 2120, 2127

‐ 28 (2001); Johnson v. Loftus

, 518 F.3d 453,

455

‐ 56 (7th Cir. 2008). There is no doubt that the claim wasNo. 15

‐ 2122 27

presented to the Indiana Court of Appeals, which rejected the

claim on its merits. But the relevant question is whether

Hinesley fully and fairly presented it to the Indiana Supreme

Court in the petition for transfer to that court. See O’Sullivan v.

Boerckel

, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732

‐ 33 (1999).

Hinesley’s transfer petition in relevant part focused on the

judicial temperance doctrine, which the appellate court had

cited as a central reason for rejecting his cumulative ineffective

‐

ness claim. Hinesley argued that the appellate court was

wrong as a matter of fact when it invoked the presumption

notwithstanding what he perceived as signals from the trial

judge, in her opinion denying postconviction relief, that she

had relied on unobjected

‐ to hearsay in convicting Hinesley. The

problem, for Hinesley, is that although his petition mentioned

Strickland in passing, the argument as presented was that the

state appellate court wrongly applied a state rule, which is

ordinarily not a matter of concern for a federal habeas court.

See Swarthout v. Cooke

, 562 U.S. 216, 219, 131 S. Ct. 859, 861

(2011) (per curiam). Compounding the problem is that the

transfer petition not only never used the word “cumulative” to

distinguish his argument of cumulative prejudice from his

arguments of individual ineffectiveness, but in the pertinent

section focused solely on the subject of hearsay and said

nothing about the multiple other bases for his cumulative

argument. 4 In short, Hinesley never presented a discernible

argument of cumulative ineffectiveness to the Indiana Su

‐

4 For example, the transfer petition noted the rejection of Hinesley’s

argument as to vouching in its procedural summary, but did not mention

vouching again in the relevant argument portion of the petition.28 No. 15

‐ 2122

preme Court. The district correctly found that this amounted

to a procedural default that precluded federal review of the

claim.

III.

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

habeas corpus.