In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 18-3435 

ANTHONY C. OLVERA, 

Petitioner-Appellant, 

v.

DAVID GOMEZ, Warden, 

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the

Central District of Illinois. 

No. 4:15-cv-04042-SLD — Sara Darrow, Chief Judge. 

____________________ 

ARGUED JANUARY 14, 2021 — DECIDED JUNE 22, 2021 

____________________ 

Before RIPPLE, KANNE, and ROVNER, Circuit Judges. 

RIPPLE, Circuit Judge. Petitioner Anthony Olvera was the 

driver in a gang-related, drive-by shooting that resulted in the 

death of an innocent bystander. An Illinois jury found 

Mr. Olvera guilty of first-degree murder on the theory that he 

was accountable for the shooter’s conduct. Mr. Olvera now 

seeks postconviction review, claiming that his trial counsel 

provided ineffective assistance by conducting an inadequate 

pretrial investigation. The state courts denied Mr. Olvera’s 
2 No. 18-3435 

petition. He then filed this petition for habeas corpus under 

28 U.S.C. § 2254. The district court denied relief. We now affirm the district court’s judgment.

I 

BACKGROUND

Mr. Olvera’s conviction stems from the January 8, 2000, 

shooting death of Stephen Stropes, the victim of a gang-related drive-by shooting in East Moline, Illinois. It is undisputed that Mr. Olvera’s codefendant, Kristian Delgado, fired 

the shot that killed Stropes. It is also undisputed that 

Mr. Olvera was the driver of the vehicle and did not fire any 

shots that evening. Delgado pleaded guilty to murder, and 

the State prosecuted Mr. Olvera on the theory that he was accountable for Delgado’s actions that killed Stropes.

The tragic events of January 8 started with a rather trivial 

argument. Mr. Olvera’s girlfriend, Guadalupe Raya, was at a 

party where she got into an argument with members of the 

Latin Kings gang. She accused them of using her camera to 

take photos of themselves flashing gang signs. The Latin 

Kings are a rival of the Bishops gang of which Mr. Olvera and 

Delgado were members. Upset over the camera incident, 

Raya called Mr. Olvera and asked him to pick her up from the 

party. Mr. Olvera drove over with Delgado in the passenger 

seat. As they approached the house where Raya was waiting, 

they passed the group of Latin Kings, who also had left the 

party and were standing on a street corner. Delgado fired one 

shot out of the car window on the first pass; then he and 

Mr. Olvera picked up Raya, turned around, sped off in the direction of the Latin Kings, and fired several more shots at the 

Latin Kings on the second pass. It was during the second pass 
No. 18-3435 3

that a bullet struck Stropes in the head; he was later pronounced dead. 

A.

The State’s theory at trial was that Mr. Olvera was accountable for Delgado’s firing at the Latin Kings on the second pass and killing Stropes.1 The State called Raya as a witness. She testified that she was at a party, got into an argument with Latin King gang members, and called Mr. Olvera 

at his friend Daniel Mendoza’s house to come and pick her 

up. As she waited outside for Mr. Olvera, she saw the Latin 

King members and then heard a loud noise. Immediately after 

hearing the loud noise, Mr. Olvera and Delgado pulled up in 

Mr. Olvera’s four-door Buick sedan. Raya testified that 

Mr. Olvera told her to get in the car and duck. As she hid on 

the floor of the Buick’s backseat, she heard several loud noises 

and smelled smoke. Raya testified that shortly after the shooting, Mr. Olvera sold the Buick sedan to an out-of-town acquaintance. She also testified that she never saw a gun and 

that she never heard Mr. Olvera tell Delgado to shoot at the 

Latin Kings.

Raya’s friend, Alma Mendoza, who had hosted the party 

on the evening of the shooting, also testified. Her testimony 

corroborated Raya’s story about her getting into an argument 

with the Latin Kings. Alma Mendoza also identified the Latin 

1 Under Illinois law, an individual can be accountable for the criminal acts 

of another if “either before or during the commission of an offense, and 

with the intent to promote or facilitate that commission, he or she solicits, 

aids, abets, agrees, or attempts to aid that other person in the planning or 

commission of the offense.” 720 ILCS 5/5-2(c).
4 No. 18-3435 

King members at the party as Michael Olvera,2 Johnny 

Rigsby, Gabino Gutierrez, Leo Reyes, and Jose Perez. Alma 

Mendoza told the jury that she did not want gang-related 

problems at her party, so she asked Raya and the Latin Kings 

to leave. She also testified that she heard something that 

sounded like “three fireworks” after Raya and the group of 

Latin Kings left the party.3

Tara Ramos, another partygoer, testified that she saw 

Raya get into a car after leaving the party. The driver of that 

car, Ramos testified, bent over and appeared to grab something from under his seat. She said that the driver yelled for 

Raya to get quickly into the car, which then sped down the 

street. She then heard gunshots.

Four of the Latin King members at whom Delgado fired—

Reyes, Rigsby, Michael Olvera, and Gutierrez—also testified. 

The fifth member, Perez, was out of the state at the time of 

Mr. Olvera’s trial. 

Gutierrez testified that he and the four other Latin Kings 

left the party and were standing on the corner of 15th Avenue 

and 12th Street. A car pulled around the corner and stopped 

next to them. The passenger then stuck a gun out the window. 

As the Latin King members fled, they heard a gunshot. 

Gutierrez, Perez, and Reyes ended up on 18th Avenue. There, 

Gutierrez saw the car speeding closer again. On this second 

pass, he testified that he saw the front-seat passenger lean out 

the window before firing two or three more shots. Reyes 

2 Michael Olvera is Mr. Olvera’s cousin. We will include Michael Olvera’s 

first name in all references to avoid confusion with the petitioner, who we 

will continue to refer to as Mr. Olvera.

3 R.8-16 at 53.
No. 18-3435 5

testified along the same lines as Gutierrez. Reyes added that 

he heard someone in the car yell “King blink,” which is a disrespectful term to members of the Latin Kings.4

Rigsby testified that although Perez, Reyes, and Gutierrez 

fled after seeing the gun on the car’s first pass, he and Michael 

Olvera remained. He also testified to hearing a single gunshot 

followed by three more a short time later. Michael Olvera testified along the same lines as Rigsby.

David Routien, a local pastor and disinterested witness, 

testified that he heard three gunshots as he was preparing his 

evening sermon. When he looked out his window, he saw 

three young Hispanic men running down 18th Avenue. 

Lucille Starkey, another disinterested witness, testified 

that as she was driving home from work, a four-door sedan 

pulled in front of her car. Both the sedan and her car turned 

onto 18th Avenue. She testified that she saw Stropes standing 

by a tree, saw someone else run by him, then heard gunshots 

and saw Stropes collapse. The sedan in front of her sped away 

right after the gunshots. Starkey later identified Mr. Olvera’s 

Buick as the car she saw.

Two witnesses testified that Mr. Olvera told Delgado to 

shoot at the Latin Kings. The first was Jolene Montalvo, who 

was dating Mr. Olvera’s friend, Robert Espinoza. Montalvo 

initially testified in the grand jury proceedings. During her 

trial testimony, Montalvo claimed not to remember events to 

which she had testified during the grand jury proceeding. The 

prosecutor therefore used Montalvo’s grand jury transcripts 

to refresh her recollection throughout her trial testimony. 

4 R.8-17 at 84.
6 No. 18-3435 

Ultimately, she testified that four days after the shooting, she 

overheard Mr. Olvera tell Espinoza that the Latin Kings 

rushed the car and that he told Delgado to shoot in the air to 

scare them away. She also testified that Mr. Olvera said the 

second shooting happened when he thought the Latin Kings 

were going to shoot at the car.

The other witness was Darrin Rhodes, an inmate housed 

on the same cellblock as Mr. Olvera during Mr. Olvera’s pretrial custody. Rhodes testified that he spoke with Mr. Olvera 

about his case several times and Mr. Olvera said he instructed 

Delgado to shoot at the Latin Kings. Mr. Olvera also told 

Rhodes that after the shooting, he and Delgado scratched the 

inside of the gun barrel to prevent forensic tracing.

Mr. Olvera’s friend, Daniel Mendoza, to whose house Delgado and Mr. Olvera went following the shooting, also testified at the trial. Police arrested Delgado at Mendoza’s house 

after the shooting and recovered evidence from the residence. 

While arresting Delgado, the police recovered a .45-caliber 

handgun that forensics later matched to shell casings found 

near both shooting scenes. Mendoza testified that he had been 

convicted for filing down the serial number on the gun and 

that he had been subpoenaed to appear at the trial. 

The jury also heard evidence that shortly after the shooting, Mr. Olvera sold his Buick. Police spotted the Buick ten 

days after the shooting. When they stopped the car, they identified the driver as John Teague. Upon searching the car, the 

police found Mr. Olvera’s license plates and registration, as 
No. 18-3435 7

well as paperwork purporting to transfer the title of the car 

from Mr. Olvera to “Boy Tiegue” a day earlier.5

Mr. Olvera called a hairdresser, Marisol Sandoval, as a defense witness. Sandoval testified that, according to her appointment logs, Mr. Olvera was in her salon at the time when 

Montalvo said she overheard Mr. Olvera speaking to Espinoza at Espinoza’s apartment. Sandoval’s testimony, 

Mr. Olvera contended, undercut Montalvo’s credibility.

After the parties rested, the jury deliberated for approximately one half-hour before returning a guilty verdict. The Illinois courts later upheld his murder conviction on direct appeal.6

B.

In May 2002, Mr. Olvera sought postconviction review of 

his conviction in the Illinois state courts. His primary allegation was that his trial counsel had failed to “contact or call” 

several witnesses “whose testimony would have been of significant benefit to him.”7 In support of his petition, he attached affidavits from multiple witnesses and potential witnesses, seven of whom are relevant to his appeal here.8

5 Id. at 2.

6 R.8-1 (unpublished order resolving direct appeal).

7 R.8-11 at 85.

8 There were two additional affidavits, one from partygoer Tara Ramos 

and another from Mr. Olvera’s friend Rose Garza. The state appellate 

court concluded that neither impacted the ineffective assistance inquiry, 

and Mr. Olvera does not challenge the decision with respect to those two 

affidavits.
8 No. 18-3435 

First, Robert Espinoza averred that his girlfriend, Montalvo, testified falsely to having overheard Mr. Olvera admit 

to Espinoza that he had told Delgado to fire at the Latin Kings. 

According to Espinoza, no such conversation occurred. Espinoza posited that Montalvo had lied to gain leniency in a federal racketeering case he faced at the time of Mr. Olvera’s trial. 

Espinoza also noted that Mr. Olvera’s attorney knew of his 

whereabouts during the trial but never contacted him.

Second, Damian Olvera, another cousin of Mr. Olvera, 

averred that he heard Espinoza tell Montalvo on multiple occasions to testify against Mr. Olvera. Damian Olvera did not 

come forward with this information until May 2002, after 

speaking with Mr. Olvera. 

Third, Daniel Mendoza averred that he was with 

Mr. Olvera and Delgado on the night of the shooting. He

claimed that Mr. Olvera received a call from Raya to pick her 

up from the party and that he did not hear Mr. Olvera ask 

Delgado to accompany him.

Fourth, John Teague averred that he purchased 

Mr. Olvera’s Buick following the shooting. He also claimed

that he was already in discussions with Mr. Olvera about buying the car prior to the shooting. He added that Mr. Olvera’s 

counsel never contacted him about testifying. Teague has 

since died. 

Fifth, Jose Perez, the Latin Kings member who was unavailable during Mr. Olvera’s trial, averred that after 

Mr. Olvera’s car turned onto 18th Avenue, he saw Reyes run 

at the car, then heard shots fired.

Sixth, Michael Olvera averred that he overheard a conversation between Perez, Reyes, and Gutierrez discussing 
No. 18-3435 9

Reyes’s running at the Buick before the shots were fired. Michael Olvera did not claim in his affidavit that Mr. Olvera’s 

counsel never contacted him. He did, however, state that he 

would testify to hearing the conversation if called at a future 

trial. 

Seventh, Kristian Delgado averred that he decided to join 

Mr. Olvera on the trip to pick up Raya on the night of January 

8, 2000, on his own volition, not because Mr. Olvera extended 

an invitation. Nor, according to Delgado’s affidavit, did 

Mr. Olvera know that Delgado was carrying a firearm. Delgado also averred that he fired the shot in the air on the first 

pass of the Latin King members without Mr. Olvera’s direction. He claimed that Mr. Olvera became upset at his decision 

to fire during the first pass. On the second pass, he claimed

that one of the Latin Kings ran toward the car and he fired at 

the charging person out of fear that the Latin King was going 

to shoot at the Buick.

Delgado added to this account in a second affidavit. There, 

he claimed that Mr. Olvera told him to get out of the car after 

the first shooting but that he pointed his gun at Mr. Olvera 

and said he would harm Mr. Olvera if he told anyone about 

the shooting. He also added that he thought he saw a gun in 

the hand of the charging Latin King. He added that his statements from his own sentencing hearing, in which he said 

Mr. Olvera told him to fire, were false. He now claims to have 

made those statements in the hope of receiving a lesser sentence. Finally, Delgado claimed that Mr. Olvera’s counsel did 

not contact him about testifying on Mr. Olvera’s behalf. 

The Illinois Circuit Court denied Mr. Olvera’s postconviction petition. Mr. Olvera then appealed, claiming that the affidavits showed that trial defense counsel was ineffective for 
10 No. 18-3435 

failing to investigate the self-defense argument raised in Delgado’s affidavit. The Illinois Appellate Court reviewed his petition de novo and affirmed the trial court’s decision. It concluded that none of the affidavits that Mr. Olvera had submitted were sufficient on their own, or in combination, to establish ineffective assistance of counsel. For six of the seven affidavits, the appellate court held that they failed to show deficient performance by Mr. Olvera’s counsel: (1) Delgado’s affidavit “relate[d] to appropriate trial strategy”; (2) Daniel 

Mendoza’s affidavit was both “speculative” and only stated 

that Mr. Olvera did not tell Delgado to join him on the trip to 

pick up Raya; (3) Teague’s affidavit was about events that 

happened after the shooting, thus irrelevant to whether 

Mr. Olvera was culpable under Illinois law for Delgado’s

shooting Stropes; (4) Damian Olvera’s affidavit was about information that Mr. Olvera’s counsel would not have reasonably uncovered ahead of the trial; (5) Michael Olvera’s affidavit 

was inadmissible hearsay; and (6) Perez was out of the state

at the time of Mr. Olvera’s trial, so he could not have been 

called to testify.9 For the seventh affidavit, that from Espinoza, the appellate court went straight to the prejudice prong 

and held that, even with Espinoza’s proposed testimony, 

there was still substantial evidence to convict Mr. Olvera.

C.

After exhausting his state review, Mr. Olvera filed this petition under 28 U.S.C. § 2254, submitting that the state appellate court’s decision was both contrary to and an unreasonable application of the Supreme Court’s holding in Strickland v. 

9 R.8-5 at ¶ 17.
No. 18-3435 11

Washington, 466 U.S. 668 (1984).10 On the “contrary to” argument, Mr. Olvera alleged that the state court required him to 

prove that he would have been acquitted in order to demonstrate prejudice. The district court rejected this argument, noting that even though the state appellate court misarticulated 

the Strickland prejudice definition at one point in its opinion, 

it had earlier articulated the correct definition.

On the “unreasonable application” argument, the district 

court found no basis to upset the state appellate court’s decision. The district court held that the state appellate court did 

not unreasonably apply Strickland when it disposed of Espinoza’s affidavit on the prejudice prong. Even if the jury had 

heard Espinoza’s proposed testimony, they still would have 

heard Rhodes’s testimony about Mr. Olvera’s jailhouse confession and Raya’s testimony about Mr. Olvera telling her to 

duck in the Buick and then hearing the shots. The district 

court also held that the state appellate court did not act unreasonably in resolving the other six affidavits on Strickland’s 

deficient performance prong.

The district court then granted Mr. Olvera a certificate of 

appealability because it believed that reasonable jurists could 

disagree with its decision. See 28 U.S.C. § 2253(c). 

10 The parties agree that the district court correctly identified the state appellate court’s opinion as the last reasoned state court opinion, and thus 

the opinion we should look to on review. See Carrion v. Butler, 835 F.3d 

764, 772 (7th Cir. 2016).
12 No. 18-3435 

II

DISCUSSION

We review a district court’s denial of habeas relief de 

novo.11 Felton v. Bartow, 926 F.3d 451, 464 (7th Cir. 2019). 

When a person in custody pursuant to a judgment of a state 

court asks the district court to grant habeas relief from a criminal judgment imposed by a state court, the Antiterrorism and 

Effective Death Penalty Act (“AEDPA”) governs, and greatly 

curtails, its review. See Hicks v. Hepp, 871 F.3d 513, 524 (7th 

Cir. 2017). A federal court may set aside a state court’s legal 

determinations only when the state court’s adjudication of the 

petitioner’s 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.” 28 U.S.C. § 2254(d)(1). 

This standard is purposefully difficult to satisfy. See Dassey v. Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc) (citing Harrington v. Richter, 562 U.S. 86, 102 (2011)). Legal error 

by the state court only warrants relief when the state court’s 

decision is “unreasonably wrong under an objective standard.” Id. (citing Williams v. Taylor, 529 U.S. 362, 410–11 (2000)).

A state court acts contrary to Supreme Court precedent when 

it “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides 

a case differently than [the Supreme] Court has on a set of 

materially indistinguishable facts.” Williams, 529 U.S. at 413. 

A state court’s legal decision may also be objectively unreasonable if it “identifies the correct governing legal principle 

11 The district court exercised its jurisdiction under 28 U.S.C. §§ 1331, 2241, 

and 2254. We exercise ours under 28 U.S.C. §§ 1291 and 2253.
No. 18-3435 13

from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.

Mr. Olvera’s petition asserts that the state appellate court’s 

decision was both contrary to and an unreasonable application 

of the Supreme Court’s clearly established law in Strickland v. 

Washington, 466 U.S. at 668, which sets out the framework for 

evaluating ineffective assistance of counsel claims. 

When a habeas petitioner challenges his conviction based 

on ineffective assistance of counsel, the Supreme Court’s case 

law imposes a “‘doubly deferential’ standard of review that 

gives both the state court and the defense attorney the benefit 

of the doubt.” Burt v. Titlow, 571 U.S. 12, 15 (2013) (quoting

Cullen v. Pinholster, 563 U.S. 170, 190 (2011)). AEDPA provides 

the first layer of deference to the state court, and substantive 

Sixth Amendment law provides the second layer of deference 

to defense counsel. See id. 

It is well established that the Sixth Amendment requires 

effective assistance of counsel. To determine whether a petitioner has been deprived of this guarantee, we employ the familiar two-pronged test from Strickland, 466 U.S. at 688. First, 

we determine whether an attorney’s “representation fell below an objective standard of reasonableness.” Id. When counsel makes a “thorough [pretrial] investigation of [the] law and 

facts,” counsel’s trial strategy is “virtually unchallengeable.” 

Id. at 690. In contrast, when counsel’s pretrial investigation is 

less than complete, counsel’s strategic choices are “reasonable 

precisely to the extent that reasonable professional judgments 

support the limitations on investigation.” Id. at 691. In short, 

“counsel has a duty to make reasonable investigations or to 

make a reasonable decision that makes particular investigations unnecessary.” Id.
14 No. 18-3435 

The Supreme Court has elaborated on the Strickland standard in ways that are pertinent to the task at hand. In Wiggins 

v. Smith, 539 U.S. 510, 527–28 (2003), the Court emphasized 

that in applying Strickland’s first prong, we may not assume 

that counsel’s decision to limit an investigation was reasonable without actually inquiring into why counsel stopped investigating.12 For example, if counsel never bothers to find 

out what a potential witness may say on the stand, counsel’s 

decision not to call that witness to testify cannot be passed off 

as a matter of strategy. See Mosley v. Atchison, 689 F.3d 838, 848 

(7th Cir. 2012) (“According to [two potential witnesses’] affidavits, which were treated as true for purposes of the state 

courts’ summary disposition, [the petitioner’s] lawyer never 

even interviewed them to learn what they might say. On that 

limited record before the state courts, the courts had to assume the lawyer was not aware of the specifics of their potential testimony.”). In short, assigning strategic value to counsel’s decision requires addressing “the adequacy of the pretrial investigation, which was clearly established under Strickland as the critical threshold question.” Campbell v. Reardon, 

780 F.3d 752, 766 (7th Cir. 2015). 

Strickland’s second prong asks whether the defendant suffered any prejudice as a result of counsel’s deficient performance. See Strickland, 466 U.S. at 693. As the Supreme Court 

put it in Strickland, “[w]hen a defendant challenges a conviction, the question is whether there is a reasonable probability 

12 See also Campbell v. Reardon, 780 F.3d 752, 764 (7th Cir. 2015) (“If counsel’s decision not to investigate [two potential witnesses] was itself unreasonable, then his decision not to present their testimony—and to rely on 

[an alternative] theory instead—was too ill-informed to be considered reasonable.”).
No. 18-3435 15

that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 695. A reasonable probability, the Court said, “is a probability sufficient to undermine confidence in the outcome.” Id. at 694. 

With this doubly deferential framework in mind, we first 

will address Mr. Olvera’s claim that the state court acted contrary to Strickland, then turn to his claim that the state court 

unreasonably applied Strickland. 

A.

Mr. Olvera’s first argument relies on § 2254(d)(1)’s “contrary to” clause. He focuses on the state appellate court’s 

statement that even if Espinoza’s affidavit were true, the other 

evidence against Mr. Olvera “was so substantial that we cannot find this new evidence would have resulted in an acquittal. 

Therefore, we find that defendant was not prejudiced and 

counsel was not ineffective.”13 Mr. Olvera points out correctly 

that Strickland, 466 U.S. at 694, only requires “a reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.” He submits that, by misstating the burden for establishing prejudice, 

the state appellate court acted contrary to Strickland.14

13 R.8-5 at ¶ 18 (emphasis added).

14 Mr. Olvera also likens his case to Andrus v. Texas, 140 S. Ct. 1875, 1886 

(2020), in which the Supreme Court found lacking the Strickland inquiry 

conducted by the Texas Court of Criminal Appeals. But there, the Texas 

court denied the petitioner’s Strickland claim in a single sentence, leaving 

the Supreme Court to wonder whether it “considered Strickland prejudice 

at all.” Id. Here, there is no doubt the Illinois Appellate Court considered 

prejudice; Mr. Olvera simply contends that the court applied the wrong 

definition of prejudice.
16 No. 18-3435 

The State acknowledges that the appellate court was 

wrong to reference acquittal in its analysis but nevertheless 

contends that the court’s error was simply an inartful articulation of Strickland’s prejudice inquiry. It invites our attention 

to two other aspects of the state appellate court’s opinion as 

evidence that the state court applied the correct Strickland 

prejudice standard. First, the State notes that on the same 

page that the appellate court misstated the standard, it also 

quoted the correct Strickland prejudice standard. Second, the 

State notes that immediately following the erroneous articulation of prejudice, the state appellate court cited People v. 

Thompson, 835 N.E.2d 933, 937 (Ill. App. Ct. 2005), which contains the correct articulation of Strickland’s prejudice prong. 

Reading the state appellate court’s opinion in its totality, the 

State submits that the appellate court applied the correct 

standard, even if in one part of its opinion it mistakenly articulated that standard.

The State is correct. The Supreme Court has said, explicitly, that “use of the unadorned word ‘probably’ is permissible shorthand when the complete Strickland standard is elsewhere recited.” Holland v. Jackson, 542 U.S. 649, 655 (2004) (per 

curiam). When examining a state court’s articulation of the 

Strickland standard, we must keep in mind “the presumption 

that state courts know and follow the law” and give their articulation of that standard “the benefit of the doubt.” Woodford 

v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). A pair of our 

decisions illustrate how this deference operates in circumstances like those presented here. In Stanley v. Bartley, 465 F.3d 

810, 813 (7th Cir. 2006), we encountered a state court opinion 

that correctly stated the Strickland prejudice standard in one 

section, but later stated the standard as requiring a showing 

that absent counsel’s error the outcome of the trial would have 
No. 18-3435 17

been different—thus appearing to raise the standard beyond 

the “reasonable probability” that Strickland imposes. We gave 

the state court the “benefit of the doubt,” holding that it had 

not acted contrary to Strickland. Id. Instead, we observed that 

because the state court “expounded the well-known standard 

correctly on the previous page of its opinion, it is more likely 

that the court stated its conclusion imprecisely than that it applied a different standard.” Id. (citing Visciotti, 537 U.S. at 19). 

More recently, in Fayemi v. Ruskin, 966 F.3d 591, 594 (7th 

Cir. 2020), we reviewed a state court decision that correctly 

stated Strickland’s prejudice definition but later twice mistakenly asked whether the result of the case “would likely have 

been different.” We rejected the petitioner’s argument that the 

state court acted contrary to Strickland, instead reiterating that 

“we do not attribute to the state’s judiciary an unexplained 

replacement of the correct standard with an incorrect one.” Id.

The more respectful approach, we said, was to treat the later 

mistaken statements as shorthand for the correct definition 

that the state court noted earlier in its opinion.15 See id.

15 To be sure, these are not the only two cases that illustrate the “benefit 

of the doubt” principle. Similar cases from our court include: Sussman v. 

Jenkins, 636 F.3d 329, 359–60 (7th Cir. 2011) (state court opinion omitting 

“reasonable probability” language in conclusion did not demonstrate that 

the state court employed incorrect standard); Woods v. Schwartz, 589 F.3d 

368, 378 n.3 (7th Cir. 2009) (“We have noted numerous times that there is 

no error when a court has correctly noted the Strickland standard and then 

used an incorrect shorthand version when stating its conclusion.”). Our 

case law is also consistent with that from our sister circuits. See, e.g., Charles 

v. Stephens, 736 F.3d 380, 393 (5th Cir. 2013) (explaining that, viewed as a 

whole, the state court’s opinion “indicates that the state habeas court omitted the ‘reasonable probability’ modifier not due to its incorrect understanding of the prejudice standard, but as a shorthand method to refer to 
18 No. 18-3435 

Mr. Olvera attempts to distinguish his case from the others 

we have decided by noting the exact wording of the mistaken 

prejudice definition here. He correctly notes that our past 

cases involved different incorrect formulations of Strickland’s 

prejudice prong. Yet those slight differences do not make for 

a genuine distinction. We still give the state court the benefit 

of the doubt. See Visciotti, 537 U.S. at 24. And our past decisions encountered mistaken definitions of roughly equal significance. See, e.g., Sussman v. Jenkins, 636 F.3d 329, 359–60 (7th 

Cir. 2011) (state court opinion omitted “reasonable probability” when defining prejudice but was not contrary to Strickland).

Mr. Olvera admits that the state appellate court included 

the correct Strickland framework on the same page that it 

stated the mistaken definition of prejudice. As we said in 

Fayemi, the approach that most respects the state appellate 

court is to treat the second, mistaken statement as a shorthand 

for the earlier correct definition. Treating the mistaken definition as shorthand makes even more sense in Mr. Olvera’s case 

because the state court followed the statement with a citation 

to a decision that included the correct definition of prejudice.16 Absent circumstances that would raise a grave concern 

that the state court actually applied a contrary standard, we 

see no basis to override the benefit of the doubt that § 2254 

provides to the state court’s decision.

the correct standard”); Williams v. Roper, 695 F.3d 825, 832 (8th Cir. 2012) 

(similar); Bledsoe v. Bruce, 569 F.3d 1223, 1231–33 (10th Cir. 2009) (similar).

16 R.8-5 at ¶ 18 (citing People v. Thompson, 835 N.E.2d 933 (Ill. App. Ct. 

2005)).
No. 18-3435 19

B.

We now examine Mr. Olvera’s contention that the state appellate court unreasonably applied Strickland when it held 

that the affidavits that he submitted in support of his state petition did not, individually or collectively, demonstrate ineffective assistance of counsel. The state appellate court concluded that Mr. Olvera’s counsel was not ineffective. Yet the 

state court’s opinion left some aspects of Mr. Olvera’s failure-to-investigate claim largely unaddressed. As Mr. Olvera, 

the State, and the district court note, the state appellate court’s 

analysis is rather succinct and this factor complicates our 

presentation.17 For ease of reading, we therefore summarize 

at the outset our conclusions with respect to the merits of 

Mr. Olvera’s specific unreasonable application arguments: 

The state court did not unreasonably apply Strickland when it 

concluded that Espinoza’s affidavit failed to demonstrate 

prejudice and when it concluded that Daniel Mendoza’s, 

Damian Olvera’s, and Michael Olvera’s affidavits failed to 

demonstrate deficient performance; as for Teague’s, Delgado’s, and Perez’s affidavits, even if we assume the state 

court unreasonably applied the deficient performance prong, 

we conclude that those affidavits do not establish prejudice 

(an issue we review de novo because the state court never 

reached the question).

17 The district court’s opinion is far more thorough, but our task is to review the state appellate court’s reasoning, not the district court’s. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018) (“[W]hen the last state court to 

decide a prisoner’s federal claim explains its decision on the merits in a 

reasoned opinion[,] ... a federal habeas court simply reviews the specific 

reasons given by the state court and defers to those reasons if they are 

reasonable.”).
20 No. 18-3435 

1. 

a. 

Because our inquiry depends, in part, on an understanding of accountability and self-defense under Illinois law, we 

begin by examining the relevant provisions. 

On the fateful evening, Mr. Olvera never fired a shot. Under Illinois law, however, an individual can be accountable 

for the criminal acts of another if “either before or during the 

commission of an offense, and with the intent to promote or 

facilitate that commission, he or she solicits, aids, abets, 

agrees, or attempts to aid that other person in the planning or 

commission of the offense.” 720 ILCS 5/5-2(c). To prove the 

defendant’s accountability, “the State may present evidence 

that either (1) the defendant shared the criminal intent of the 

principal, or (2) there was a common criminal design.” People 

v. Fernandez, 6 N.E.3d 145, 149 (Ill. 2014). In Mr. Olvera’s case, 

the State argued that the facts demonstrated both a shared intent and common design.

As for Illinois law of self-defense, an individual “is justified in the use of force which is intended or likely to cause 

death or great bodily harm only if he reasonably believes that 

such force is necessary to prevent imminent death or great 

bodily harm to himself or another, or the commission of a forcible felony.” 720 ILCS 5/7-1(a). Relying on a self-defense argument is much more difficult for an initial aggressor. Under 

Illinois law, someone who “initially provokes the use of force 

against himself” cannot argue self-defense unless, among 

other things, he “exhausted every reasonable means to escape” the dangerous situation he started. 720 ILCS 5/7-4(c)(1).
No. 18-3435 21

b. 

As we turn to an examination of the state appellate court’s 

evaluation of Mr. Olvera’s petition, it is important to keep 

Mr. Olvera’s contentions in proper focus. He bases his appeal 

on the seven affidavits that we recounted earlier. But, 

throughout our consideration of his contentions, we must not 

lose sight of the evidence from Mr. Olvera’s trial that remains 

untouched by his arguments. Raya testified that when 

Mr. Olvera picked her up at the party, he hurried her into the 

Buick, told her to duck down in the back seat, then sped off 

shortly before she heard loud bangs and smelled smoke. 

Rhodes, Mr. Olvera’s cellblock confidant, testified that 

Mr. Olvera confessed to ordering Delgado to shoot at the 

Latin Kings. These two witnesses were important pieces in the 

State’s case, and the core of their testimony remains intact.

2.

With these threshold matters in mind, we now address 

those aspects of Mr. Olvera’s petition where our analysis 

tracks the state appellate court’s, then move on to the affidavits where our discussion diverges.

a. 

In his affidavit, Espinoza claims that Montalvo lied when 

she testified that she had overheard Mr. Olvera admit to Espinoza that he ordered Delgado to shoot at the Latin Kings. 

Mr. Olvera now apparently faults his counsel for not investigating this line of impeachment. 

We agree with the state appellate court that Espinoza’s assertion does not establish prejudice. Mr. Olvera overstates the 

importance of Montalvo’s testimony. By the time she testified 

at Mr. Olvera’s trial, Montalvo had become a largely 
22 No. 18-3435 

uncooperative witness. Her trial testimony consisted mostly 

of her stating that she did not remember the events in question, which required the prosecutor to rely on her earlier 

grand jury testimony. And as we noted, the jury still would 

have heard Raya’s testimony about the moments before the 

shooting and Rhodes’s testimony about Mr. Olvera’s prison 

confession. The state appellate court did not unreasonably apply Strickland when it concluded that Espinoza’s information 

did not demonstrate prejudice.18

b.

We next consider the state appellate court’s determination 

that Damian Olvera’s, Daniel Mendoza’s, and Michael 

Olvera’s affidavits failed to demonstrate deficient performance. Even though there was no evidentiary hearing on 

Mr. Olvera’s petition, it is clear from the face of these three 

affidavits that they fail to demonstrate ineffective assistance 

on the part of Mr. Olvera’s trial counsel.

Damian Olvera states in his affidavit that he overheard Espinoza tell Montalvo to lie on the stand. He admits in his affidavit, however, that he did not come forward with this information until 2002, well after the trial. Even a thorough 

18 We would be remiss if we did not also mention that Mr. Olvera’s trial 

counsel submitted an affidavit stating that Mr. Olvera “specifically instructed” him “not to interview Mr. Espinoza.” R.8-12 at 8. When a competent defendant specifically instructs counsel not to interview a potential 

witness, that instruction significantly limits counsel’s investigative obligations as to that witness. See Strickland v. Washington, 466 U.S. 668, 691 

(1984) (a client’s information and instructions define counsel’s responsibility to investigate). Though the state appellate court did not reach the 

deficient performance question with respect to Espinoza’s affidavit, we 

are hard-pressed to see how Mr. Olvera could make that showing.
No. 18-3435 23

investigation would be unlikely to reach Damian Olvera, who 

played no role in the evening of the shooting. Counsel’s investigation, therefore, was not deficient for failing to uncover 

Damian Olvera. 

As for Daniel Mendoza, the record shows that 

Mr. Olvera’s counsel did speak with Daniel Mendoza ahead 

of the trial and Mendoza refused to testify on Mr. Olvera’s 

behalf. Moreover, Daniel Mendoza ultimately did testify at 

the trial under a subpoena but overall was reluctant to say 

much of anything during his testimony. Counsel’s investigation with respect to Daniel Mendoza was therefore reasonable; it is only well after the fact that Daniel Mendoza decided 

he has something meaningful to say.

We reach the same conclusion regarding the state appellate court’s treatment of Michael Olvera’s affidavit. There, Michael Olvera claimed that he overheard a conversation between Perez, Reyes, and Gutierrez, in which they stated that 

Reyes ran toward Mr. Olvera’s car and that Delgado’s shots 

appeared to have been in response to Reyes’s action. The state 

appellate court concluded that Mr. Olvera’s counsel was not 

ineffective for allegedly failing to uncover this information. 

We agree that, even without holding an evidentiary hearing, 

the state appellate court’s conclusion was reasonable. Unlike 

the other affidavits, Michael Olvera’s affidavit does not claim 

that Mr. Olvera’s counsel failed to contact him before the trial. 

As the state appellate court noted, Michael Olvera’s offer to 

testify about a conversation he allegedly overheard was rank 

hearsay not subject to any identifiable exception. Mr. Olvera 

has offered no case law suggesting counsel has an obligation 

to uncover and then use inadmissible hearsay. Moreover, Michael Olvera, Reyes, and Gutierrez all testified at Mr. Olvera’s 
24 No. 18-3435 

trial and were cross examined by Mr. Olvera’s counsel about 

the night of the shooting.19 None offered the description of 

events that Michael Olvera now claims he overheard.

3.

We now turn to those situations where we believe that the 

state appellate court’s assessment of the submitted affidavits 

is problematic and where our own discussion necessarily 

must diverge from that of the state court. 

The state appellate court concluded that Delgado’s affidavit failed to demonstrate deficient performance because counsel’s decision not to interview Delgado or call him as a witness 

“relate[d] to appropriate trial strategy.”20 For Teague’s affidavit, the state appellate court concluded it was not deficient 

performance to fail to investigate whether Teague’s plans to 

buy Mr. Olvera’s car predated the shooting because that information “had no relevance to the commission of the 

crime.”21 For Perez’s affidavit, in which he says he saw Reyes 

run at Mr. Olvera’s car before the shooting, the state appellate 

court concluded counsel’s failure to interview Perez or call 

him as a witness was not deficient because Perez “was out of 

the state during the trial, and therefore counsel could not have 

called him to testify.”22

The issue, as we see it, is not that the state appellate court 

was necessarily wrong in concluding that Mr. Olvera failed to 

19 Perez did not testify at Mr. Olvera’s trial. We address his information 

below.

20 R.8-5 at ¶ 17.

21 Id.

22 Id.
No. 18-3435 25

demonstrate deficient performance when he alleged counsel’s 

failure to investigate Teague’s, Delgado’s, and Perez’s information. Rather, the issue is that the state appellate court decided that counsel’s investigation of these three potential witnesses was reasonable without nearly enough information 

about the scope of counsel’s investigation. The affidavit supplied by Mr. Olvera’s trial counsel in the state court proceedings offered no insight into these three witnesses, and the 

state court held no hearing into counsel’s alleged decision not 

to investigate what information these witnesses had to offer.

The key principle at stake here is that Strickland’s presumption that counsel’s decisions were reasonable “applies 

only if the lawyer actually exercised judgment.” Mosley, 689 

F.3d at 848. When it comes to failure-to-investigate claims, 

Strickland does not permit courts to simply assume counsel 

acted strategically in not calling a witness when the allegation 

is that counsel never investigated what that witness would 

have to say. See id. Without knowing the scope of counsel’s 

pretrial investigation, the state court cannot answer the “critical threshold question” of whether that investigation was adequate. Campbell, 780 F.3d at 766. That is why we have so often 

emphasized—and emphasize again today—that if a state 

court is going to conclude that trial counsel conducted a reasonable investigation, the state court must actually understand the scope of counsel’s investigation. See Gish v. Hepp, 

955 F.3d 597, 604 (7th Cir.), cert. denied, 141 S. Ct. 681 (2020); 

Mosley, 689 F.3d at 848; Davis v. Lambert, 388 F.3d 1052, 1061 

(7th Cir. 2004).

Typically, a state court can gain an understanding of trial 

counsel’s investigative decisionmaking by reviewing a detailed affidavit from counsel or holding an evidentiary 
26 No. 18-3435 

hearing. Cf. Lambert, 388 F.3d at 1061 (discussing the role of 

witness affidavits and state court evidentiary hearings in developing the factual record for a failure-to-investigate claim). 

As the Supreme Court noted in Strickland, 466 U.S. at 691, 

“when the facts that support a certain potential line of defense 

are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.” As Strickland 

also observed, the “inquiry into counsel’s conversations with 

the defendant may be critical to a proper assessment of counsel’s investigation decisions.” Id. The facts in Delgado’s and 

Teague’s affidavits are all facts Mr. Olvera would have known 

and could have told his attorney. But, here, the state court 

lacked insight into Mr. Olvera’s conversations with his trial 

counsel. Without that insight, it could not determine whether 

counsel’s alleged failure to investigate constitutes substandard performance. 

Given these circumstances, we assume, for present purposes, that the three affidavits at issue demonstrated deficient 

performance and therefore turn our attention to prejudice. Because the state appellate court did not address Strickland’s 

prejudice prong when examining Teague’s, Delgado’s, and 

Perez’s affidavits, our inquiry proceeds de novo. See Gish, 955 

F.3d at 604–05 (assuming the state appellate court unreasonably applied the deficient performance prong and then moving 

to review de novo the previously unaddressed prejudice 

prong). 

Mr. Olvera submits that the evidence in Teague’s, Delgado’s, and Perez’s affidavits undercuts the State’s accountability theory and presents a viable self-defense argument. 

Starting with the affidavits’ impact on the accountability 
No. 18-3435 27

theory, we conclude that the information in those affidavits 

does not undermine confidence in the jury’s verdict. Teague’s 

claim that he planned to buy Mr. Olvera’s Buick before the 

shooting is hardly significant. Although Mr. Olvera contends 

that the affidavit shows he was not trying to quickly dispose 

of evidence of his criminal activity, Teague’s affidavit easily 

cuts the other way. There is no dispute that Teague obtained 

possession of the car right after the shooting. That Teague 

showed interest in the car ahead of the shooting may just 

mean that Mr. Olvera knew he had a ready buyer and could 

rid himself of evidence that could tie him to the shooting. 

With respect to the claims in Delgado’s affidavit, these contradict the statements Delgado made during his own sentencing that implicated Mr. Olvera in the shooting. It is notable, 

too, that Delgado’s first affidavit filed alongside this petition 

lacked any mention of the more dramatic allegations included 

in his second affidavit.23 

Even when we consider Teague’s, Perez’s, and Delgado’s 

affidavits, there simply is no reasonable probability that the 

outcome of the case would have been different. The jury still 

would have heard Rhodes testify that Mr. Olvera admitted to 

ordering Delgado to fire at the Latin King members during 

the second shooting. Moreover, the fatal shooting happened 

on the second pass of the Latin King members, and Raya testified that Mr. Olvera instructed her to duck down before that 

shooting occurred. That is strong evidence that Mr. Olvera 

was accountable for Delgado’s shooting Stropes.

Mr. Olvera’s self-defense argument is even less persuasive. Illinois law makes clear that an initial aggressor cannot 

23 See supra, at 9.
28 No. 18-3435 

claim self-defense unless he “exhausted every reasonable 

means to escape” the dangerous situation he started. 720 

ILCS 5/7-4(c)(1). The evidence at trial showed that Mr. Olvera 

and Delgado fired one shot on their first pass of the Latin King 

members, then additional shots on their second pass. It was 

during the second pass that Delgado shot and killed Stropes. 

None of the affidavits undercut this basic timeline. As Ramos, 

one of the partygoers, testified at trial, Mr. Olvera pulled up, 

yelled for Raya to hurry into the car, then “took off real fast” 

shortly before Ramos heard the second set of gunshots.24 And 

the jury could reasonably interpret Raya’s testimony about 

Mr. Olvera’s telling her to duck in the backseat to mean that 

Mr. Olvera knew more violence was about to occur.

The shooting on the first pass made Mr. Olvera and Delgado the initial aggressors. Self-defense, therefore, is unavailable to them unless they exhausted every reasonable means 

of escape. It is clear that they did not. Instead, they drove back 

in the direction of the Latin Kings and fired more shots. Even 

if Reyes did run at the car, that does not change the fact that 

Mr. Olvera and Delgado were the initial aggressors. As a result, Mr. Olvera’s new self-defense claim does not undermine 

confidence in the verdict.

Even if we assume that Mr. Olvera’s trial counsel conducted an inadequate investigation into Delgado’s, Teague’s, 

and Perez’s information, there was no prejudice to 

Mr. Olvera. Looking at all of the information available, the 

overwhelming evidence supports the State’s accountability 

theory and precludes Mr. Olvera’s claim of self-defense.

24 R.8-16 at 82.
No. 18-3435 29

Conclusion

In sum, we reject Mr. Olvera’s contention that the state 

court’s articulation of the Strickland standard was contrary to 

the Supreme Court’s clearly established law. We also hold 

that the state court did not unreasonably apply Strickland

when it concluded that Espinoza’s affidavit failed to demonstrate prejudice and when it concluded that Daniel Mendoza’s, Damian Olvera’s, and Michael Olvera’s affidavits 

failed to demonstrate deficient performance. As for Teague’s, 

Delgado’s, and Perez’s affidavits, even if we assume the state 

court unreasonably applied the deficient performance prong, 

those affidavits do not establish prejudice. 

Consequently, Mr. Olvera has failed to demonstrate ineffective assistance by his trial counsel. We therefore affirm the 

district court’s denial of his petition under 28 U.S.C. § 2254. 

AFFIRMED