In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1573

JARRETT M. ADAMS,

Petitioner-Appellant,

v.

DANIEL BERTRAND,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 04 C 389—J. P. Stadtmueller, Judge.

____________

ARGUED FEBRUARY 21, 2006—DECIDED JUNE 30, 2006

____________

Before MANION, WOOD, and EVANS, Circuit Judges.

MANION, Circuit Judge. A Wisconsin jury convicted Jarrett

Adams, along with Dimitri Henley, of five counts of seconddegree sexual assault, and Adams was sentenced to twentyeight years in prison. Adams appealed his conviction to the

Wisconsin Court of Appeals and the Wisconsin Supreme

Court, neither of which granted him relief. Having exhausted his state court remedies, Adams filed a petition for

a writ of habeas corpus in the Eastern District of Wisconsin,

challenging both the sufficiency of the evidence and the

effectiveness of his trial counsel. The district court denied
2 No. 05-1573

1 The record does not make clear whether this was a legitimate

business nor whether the men were selling door-to-door in the

dorm. However, the propriety of their presence on the campus is

not an issue in this case.

2 Both parties refer to the victim of the sexual assault as S.E.S.,

which is consistent with the state and district court pleadings. We

adopt the same convention.

3 The “trial” refers to the trial of Jarrett Adams and Dimitri

Henley on February 8-9, 2000. All three men had been tried

together the previous year, which resulted in a mistrial because

of an improper attempt by the state to amend its charges at

the close of the evidence.

his petition. We reverse the district court’s decision based

on the constitutional deficiencies of his trial counsel.

I.

In September 1998, Jarrett Adams, Dimitri Henley, and

Rovaughn Hill, three men from Chicago, were selling

cologne at the University of Wisconsin at Whitewater

shortly before fall semester classes were to begin.1

 On the

evening of September 5, the men were playing video games

in the dorm room of Shawn Demain, a freshman whom they

had met during their sales rounds. Meanwhile, S.E.S.2

, a

female freshman who resided in the same dorm as Demain,

and S.E.S.’s roommate, Heidi Sheets, were attending a party

a few blocks away. While at the party, S.E.S. had approximately three or four beers. Upon returning to the dorm later

that evening, the women went to Demain’s dorm room,

where they first met the three men from Chicago.

At trial,3

 Sheets and S.E.S. offered different stories of what

happened next. Sheets claimed that both women invited the
No. 05-1573 3

men up to their room, which was located three floors above

Demain’s. While the men and S.E.S. proceeded to the room,

Sheets went down the hall for approximately twenty-five

minutes to speak with another friend. According to S.E.S.,

however, neither she nor Sheets invited the three men to

their room. Rather, she left Demain’s room by herself and

went to her room. When she opened the door to her room,

the three men suddenly appeared at the door and barged in,

telling S.E.S. to put on music so that they could dance. After

selecting a compact disc, the men took turns dancing

provocatively with S.E.S., groping her breasts and grabbing

her crotch. She claimed she did not resist because she was

scared. The situation deteriorated further. One of the men

pulled S.E.S. onto Sheets’s bed, and Adams, standing before

her, pulled down his pants, leaving him with only his

boxers on.

At this point, Sheets entered the room. Both Sheets and

S.E.S. testified that Sheets became upset and stormed out of

the room. S.E.S. followed Sheets out of the room, and none

of the men restrained her from doing so. Sheets entered

another room on the same floor, but refused to let S.E.S.

inside. Through the closed door, S.E.S. asked Sheets whether

she was mad at her and overheard Sheets calling her a slut.

During her time in the hall, S.E.S. never indicated that

anything was amiss or attempted to enter another room.

After waiting a few minutes, S.E.S. left the door and decided

to go downstairs instead of returning to her room. Upon

reaching the staircase, however, she came across Hill

waiting for her. He turned S.E.S. around, directing her back

to her room where the other men were waiting.

Upon returning to her room, the men ordered her to sit on

the floor, and S.E.S. complied, sitting on the floor with her

legs crossed “Indian style.” Shortly thereafter Adams told
4 No. 05-1573

her to lie down, which S.E.S. did. Adams tried to remove

her pants, while S.E.S. kept her knees close together in an

attempt to stop him. Eventually, however, in the face of

Adams’s continued tugging, she relaxed her legs. He

removed S.E.S.’s pants and underwear, and then proceeded

to have sex with her. After Adams stopped, the other men

took turns having sex with S.E.S. During this time, one of

the men also rubbed his penis against her face, telling her to

“suck this,” as S.E.S. turned her face to avoid it.

The three men left, and S.E.S. called her boyfriend, Joshua

Lodwick. Although S.E.S. did not want to go to the hospital

or talk to the police, Lodwick and others convinced her to

do both. Adams, Hill, and Henley were eventually charged

with second-degree sexual assault. They were first tried

together in 1999, but that trial resulted in a mistrial after the

state attempted to amend its charges after the close of

evidence. Subsequently, Adams and Henley were tried

together. Later, Hill was tried separately.

At the second trial, both John Fiske, Adams’s lawyer, and

Steve Luchsinger, Henley’s lawyer, cross-examined S.E.S.

about earlier statements to her treating doctor and at the

first trial, pointing out inconsistencies among various

accounts she had given. Adams and Henley offered no

defense witnesses, choosing instead to rely on their perception that the state failed to prove all the elements of seconddegree sexual assault. The jury, however, found Adams and

Henley guilty on all five counts. Hill, on the other hand,

called defense witnesses at his subsequent trial, including

Demain, who testified that he saw S.E.S. smoking cigarettes

with the three men after the alleged assault occurred. This

trial ended in a hung jury. While the state renewed its

prosecution of Hill later, the court eventually dismissed the

case against Hill because the state had failed to turn over

certain police investigation notes to the defense.
No. 05-1573 5

On appeal, Adams mounted a challenge to the sufficiency

of the evidence, as well as various decisions made by his

trial counsel. The Wisconsin Court of Appeals affirmed the

conviction, and the Wisconsin Supreme Court denied

review. Adams then proceeded to the Eastern District of

Wisconsin, where he filed a petition for a writ of habeas

corpus, again challenging the sufficiency of the evidence

and his attorney’s performance. The district court denied the

petition, finding the evidence sufficient to support Adams’s

convictions and that his attorney made reasonable strategic

trial choices.

II.

Before this court, Adams again challenges the sufficiency

of the evidence and his counsel’s effectiveness. Adams first

claims that the state failed to establish that his sexual contact

with S.E.S. involved either the use or threat of force or lack

of consent, each of which is a required element to prove

second-degree sexual assault in Wisconsin. Adams also

argues that his trial attorney was constitutionally ineffective

based on several events at trial. Specifically, Adams challenges his counsel’s failure to request a jury instruction for

a lesser included offense, his decision not to vigorously

cross-examine S.E.S., and his failure to properly investigate

Demain.

On appeal from a denial of habeas corpus relief, we

review issues of law de novo and issues of fact for clear

error. See Perry v. McCaughtry, 308 F.3d 682, 688 (7th Cir.

2002). To qualify for habeas relief, Adams must show that

the state court proceedings adjudicating his claim “resulted

in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as
6 No. 05-1573

4 As this court has repeatedly stated on habeas review, a

(continued...)

determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). See also Van Patten v. Deppisch, 434 F.3d

1038, 1042 (7th Cir. 2006); Bintz v. Bertrand, 403 F.3d 859, 865

(7th Cir. 2005). A state court decision constitutes an unreasonable application of clearly established federal law if the

state court correctly identifies the governing legal principle

from Supreme Court jurisprudence but unreasonably

applies that principle to the facts of the present case. See

Dunlap v. Hepp, 436 F.3d 739, 741 (7th Cir. 2006). We have

previously explained that an unreasonable decision, in this

context, is one “well outside the boundaries of permissible

differences of opinion.” McFowler v. Jaimet, 349 F.3d 436, 455

(7th Cir. 2003).

A.

Adams first mounts challenges to the sufficiency of the

evidence that established two of the elements of seconddegree sexual assault. On direct appeal, the Wisconsin Court

of Appeals reviewed Adams’s sufficiency claims under the

standard annunciated in State v. Poellinger, 451 N.W.2d 752,

755 (Wis. 1990): “an appellate court may not reverse a

conviction unless the evidence, viewed most favorably to

the state and the conviction, is so insufficient in probative

value and force that no trier of fact, acting reasonably, could

have found guilt beyond a reasonable doubt.” Wisconsin

effectively duplicates the Supreme Court standard for

sufficiency challenges, see Jackson v. Virginia, 443 U.S. 307,

324 (1979), and Adams does not claim that the Wisconsin

Court of Appeals applied the wrong standard.4

 Rather,
No. 05-1573 7

4 (...continued)

state court need not cite to the applicable Supreme Court case

annunciating the standard, as long as the state court precedent

cited agrees with it. See, e.g., Charlton v. Davis, 439 F.3d 369,

374 (7th Cir. 2006) (“A state court need not even be aware of

Supreme Court precedent so long as neither the reasoning nor the

result of the state-court decision contradicts them.”) (internal

citations omitted).

Adams suggests that the Court of Appeals applied the

proper standard unreasonably.

Wisconsin defines the crime of second-degree sexual

assault as “sexual contact or sexual intercourse with another

person without consent of that person by use or threat of

force or violence.” Wis. Stat. § 940.225(2)(a). Turning to

Adams’s initial challenge, he contends that the state failed

to prove the “use or threat of force or violence” element. A

Wisconsin court has previously explained:

The “use or threat of force or violence element of

violence” element of second-degree sexual assault

under Wis. Stat. § 940.225(2)(a) is satisfied if the use or

threat of force or violence is directed to compelling

the victim’s submission. The element is satisfied

whether the force is used or threatened as part of the

sexual contact or whether it is used or threatened as part

of the sexual contact to compel the victim’s submission.

State v. Hayes, 681 N.W.2d 203, 215 (Wis. 2004). The Wisconsin Supreme Court has clearly stated that “use of force”

would include both forcible contact or the force used as the

means of making contact. See State v. Bonds, 477 N.W.2d 265,

267 (Wis. 1991). To put it another way, force used during the

sexual act or contact to compel submission can satisfy the

statute, not just force prior to the actual sexual act. In Bonds,
8 No. 05-1573

for example, the Wisconsin Supreme Court found that

“forcibly grabbing her nipple and then squeezing and

pulling it” sufficed for the force element of second- degree

sexual assault, though it also was the extent of the sexual

contact. Id. at 265. In addition to the use of actual force, a

threat of force that compels submission also satisfies this

requirement. “The message conveyed by a threat is determined by the context in which it occurs.” State v. Jaworski,

400 N.W.2d 29, 30-31 (Wis. Ct. App. 1986). This determination requires an examination of such factors as the place

where the event occurred, the victim’s understanding of the

threat, and physical disparities between victim and assailant. See id.

The Wisconsin Court of Appeals did not dwell very long

on Adams’s sufficiency challenge, simply concluding that

“[t]he victim’s testimony, if believed, was sufficient to

support the charges the jury was instructed on.” Wisconsin

v. Adams, No. 02-0039-CR, 2002 Wisc. App. LEXIS 1214, at

*9-10 (Nov. 7, 2002). Viewing the evidence in the light most

favorable to the conviction, we agree that sufficient evidence

established both use of force and threats of force. Specifically, S.E.S. testified that the men groped her breasts and

crotch while dancing with her in her room. After she

followed Sheets out of the room, she stated that she attempted to go downstairs, only to have one of the men

physically turn her around and lead her back into the room.

Upon her return to the room, she attempted to keep her legs

together, but Adams persisted in taking off her pants and

underwear. While S.E.S. did not want him to do this, she

eventually could no longer keep her legs together in light of

his repeated attempts. All of these actions were uses of force

to compel her submission to sexual contact or intercourse.

While this is not a case of a beating or extreme violence

against S.E.S., the statute does not require that type of force.
No. 05-1573 9

It only requires force to compel submission—precisely what

happened here according to S.E.S.’s testimony.

Moreover, even if there were insufficient evidence of

actual force, sufficient evidence supported a finding of a

threat of force. As stated above, threats of force are evaluated based on the context in which they accrue. See Jaworski,

400 N.W.2d at 30-31. Viewing the evidence in the light most

favorable to the conviction, the context in this case establishes a threat directed to obtaining S.E.S.’s submission.

S.E.S. testified that as she entered her room, she was

surprised by three men that she barely knew, who followed

her into her room uninvited. The men then ordered her to

put on music and groped her while dancing. One of the men

pulled her onto a bed, while Adams dropped his pants. She

was able to leave the situation temporarily when she

unsuccessfully tried to enter another room where her

roommate had relocated. When she attempted to go downstairs, she was met at the stairwell by one of the men and

returned to her room. At that time, the room was dark, and

she was surrounded by three men who ordered to sit down,

then lie down, with Adams proceeding to take off her pants

and underwear despite her attempts to prevent him. While

this case does not feature an explicit threat, given the

number of men, their orders to S.E.S., and their aggressive,

sexually-charged actions despite her unwillingness, the

context described by S.E.S. was one of intimidation geared

to making her submit to sexual intercourse. The Wisconsin

Court of Appeals, therefore, applied Jackson reasonably to

the force element.

Adams also argues that the evidence of lack of consent

was insufficient. Wisconsin defines consent as “words or

overt actions by a person who is competent to give informed

consent indicating a freely given agreement to have sexual

intercourse or sexual contact.” Wis. Stat. § 940.225(4).
10 No. 05-1573

Adams relies on the fact that S.E.S. eventually took part in

the sexual intercourse as an overt act indicating consent.

However, such a reading would hollow out the consent

requirement, basically removing from the realm of sexual

assault any instance when the victim did not overtly resist.

“A victim of sexual assault is not required to resist the

assault to establish that the act was nonconsensual.” State v.

O’Brien, 588 N.W.2d 8, 18 (Wis. 1999); see also State v. Clark,

275 N.W.2d 715, 721 (Wis. 1979). At trial, S.E.S. expressly

testified that the men engaged in intercourse with her

without her giving any verbal consent. Moreover, S.E.S.

stated that she committed no overt acts that would suggest

consent to the men, instead testifying that she complied

with their orders out of fear. A reasonable juror could have

concluded that she merely followed directions rather than

gave consent. See Clark, 275 N.W.2d at 721. The state,

therefore, introduced sufficient evidence that would allow

a jury to conclude neither words nor overt actions supplied

the necessary consent element. Again, the conclusion of the

Wisconsin Court of Appeals was not unreasonable.

B.

Turning to Adams’s second group of claims, he brands his

trial counsel constitutionally deficient because of a number

of questionable trial decisions. The Wisconsin Court of

Appeals properly referenced Strickland v. Washington, 466

U.S. 668 (1984), in its evaluation of Adams’s ineffective

assistance challenges. The well-known Strickland analysis

requires Adams to demonstrate that: (1) his counsel’s

performance fell below an objective standard of reasonableness, and (2) the deficient performance caused him prejudice. See, e.g., Harris v. Cotton, 365 F.3d 552, 555 (7th Cir.
No. 05-1573 11

2004); Perry, 308 F.3d at 688. Regarding the performance

inquiry, we presume that counsel’s actions “fall within the

wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, and defer to strategic decision-making

by a trial attorney, see Brown v. Sternes, 304 F.3d 677, 691 (7th

Cir. 2002). See also Hough v. Anderson, 272 F.3d 878, 891 (7th

Cir. 2002) (“Our review of the performance of counsel must

be highly deferential.”) (internal citations omitted). Despite

this weighty deference, we nonetheless must carefully

consider whether the attorney brought to bear the skill and

knowledge that allows for a proper adversarial testing

process, considering all the circumstances. See Hough, 272

F.3d at 890-91. To succeed in meeting the prejudice prong of

Strickland, Adams must further show a reasonable probability that, but for counsel’s errors, the result of the proceeding

would be different. See id.; see also Brown, 304 F.3d at 691. A

reasonable probability is defined as one that is sufficient

to undermine confidence in an outcome. See Strickland,

466 U.S. at 694. “On a habeas appeal, we look at [the

Strickland] test not directly, but rather ask whether the lower

court made a reasonable application of this law to the facts

of this case.” Floyd v. Hanks, 364 F.3d 847, 850 (7th Cir. 2004).

In this case, Adams points to three main instances of

substandard performance by trial counsel. First, he argues

that Fiske unreasonably failed to request a jury instruction regarding third-degree sexual assault. Second, he

contends that Fiske erred by not vigorously cross-examining

S.E.S. or clearly presenting various inconsistencies among

her descriptions of events. Finally, and most substantially,

Adams claims that his trial counsel failed in his duty to

conduct a reasonable investigation by not locating and

talking to Demain, who could have conceivably served as a

witness on Adams’s behalf.
12 No. 05-1573

1. Jury Instructions

Adams claims that Fiske failed in his professional duties

by not seeking a jury instruction for the lesser included

offense of third-degree sexual assault. In Wisconsin, thirddegree sexual assault is “sexual intercourse with a person

without consent of that person.” Wis. Stat. § 940.225(3).

Basically, this offense has the same requirements as seconddegree sexual assault, except it does not necessitate any

showing of force. Adams believes that, given the paucity of

evidence relating to force at his trial, Fiske should have

requested this additional instruction rather than rely upon

an all-or-nothing gamble.

Fiske did not overstep the bounds of professional competence in this respect. According to Fiske’s testimony during

a post-conviction proceeding, he was aware of the lesser

included offense of third-degree sexual assault, and he

understood its constituent elements, including the lack of a

force requirement. Fiske, however, decided that allowing

the main offense to stand on its own would make it more

difficult for the government to prove, given the case’s

weaknesses. He chose to bring the lack of evidence of force

into clear view, which he believed would compel the jury to

acquit on the second-degree charges. Fiske discussed this

strategy with his client, and it comported with Adams’s

claims and overall defense— complete innocence of anything other than consensual sex. Fiske believed that the

inclusion of a lesser count instruction would look like

grasping at straws given this theory of innocence.

We cannot conclude that this choice was professionally

unreasonable. The strategy Adams now advocates has some

initial appeal in hindsight, as the jury obviously found that

the evidence of force was sufficient. That tactic, however,
No. 05-1573 13

while it might ensure a smaller prison sentence, would also

increase the chance of conviction on some charge. Fiske’s

strategy, on the other hand, while somewhat risky, could

have led to a complete acquittal had the jury agreed that

proof of force was lacking. Counsel’s decision here dwells

in the region of tactics and strategy, and the Wisconsin

Court of Appeals did not act unreasonably when concluding

that Fiske had not committed a Strickland error.

2. Cross-Examination

Adams also asserts that his counsel failed to vigorously

confront S.E.S. with various prior inconsistent statements about the assault. At the post-conviction hearing,

Fiske testified that he reviewed S.E.S.’s statements to

doctors, as well as testimony from prior hearings and the

initial trial. As mentioned before, Adams was tried jointly

with Henley. Fiske, along with Henley’s counsel,

Luchsinger, decided on a common trial strategy. Specifically, the attorneys agreed that, rather than both attacking

perceived inconsistencies, Luchsinger would be the more

aggressive in the cross-examination of S.E.S. This strategy

was born out of concern that if both lawyers aggressively

confronted the assault victim, it might alienate members

of the jury sympathetic to her. Nonetheless, Fiske felt

confident that either Luchsinger or himself would (and did)

address all inconsistencies at trial. Fiske articulated plausible strategic reasons for his actions, and the Wisconsin

Court of Appeals again reached a reasonable conclusion.

3. Investigation into Demain

Finally, Adams alleges that Fiske acted unreasonably

when he failed to locate and call Demain as a witness. As we
14 No. 05-1573

5 As stated previously (and which will be discussed below), the

trial that resulted in Adams’s conviction was actually the second trial in this matter. In the first trial, the state presented all of

its evidence, but the district court granted a mistrial based on

an improper amendment of the charges after the close of the

evidence.

have noted repeatedly, a lawyer owes his client “ ‘a duty to

make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary,’ and a failure to investigate can certainly constitute ineffective assistance.” Washington v. Smith, 219 F.3d

620, 631 (7th Cir. 2000) (quoting Strickland, 466 U.S. at 691);

See also Harris, 365 F.3d at 555-56; Brown, 304 F.3d at 691.

The Wisconsin Court of Appeals concluded that Fiske

reasonably chose to limit investigations into Demain

because he had decided not to call any defense witnesses as

part of his strategy. Adams, 2002 Wisc. App. LEXIS 1214, at

*5-6.

We disagree. The “failure to investigate a particular lead

may be excused if a lawyer has made a ‘reasonable decision

that makes particular investigations unnecessary.’ ” Washington, 219 F.3d at 631 (quoting Strickland, 466 U.S. at 691).

“In our assessment of counsel’s actions, we evaluate counsel’s conduct from the perspective at the time the decision

was made to forgo the investigation.” Brown, 304 F.3d at

692. Here, Fiske made an unreasonable decision not to

investigate Demain because Fiske possessed knowledge,

before the trial, that Demain could have swung the case in

his client’s favor.5

Fiske knew that Demain, like Sheets, appeared throughout

all accounts of the events, both before the assault and after,

and thus was a witness to several key moments in the
No. 05-1573 15

chronology. Unlike any other witness, Demain had no prior

relationship with either the men or S.E.S., thus rendering

him impartial and independent. Demain could explain what

occurred in his room prior to the sexual encounter, including whether he heard the women invite the men to visit

their room and what happened when S.E.S. left his room.

Further, the police report, which Adams’s attorney reviewed

as part of his preparations, contained a statement from

Demain that he witnessed S.E.S. downstairs with the three

men after the time of the sexual encounter. Demain, therefore, appeared to be a witness who could shed considerable,

perhaps conclusive, light on the events of that night.

Demain gained added importance given Fiske’s unique,

and enviable, position of having seen the state’s entire

case against his client. As mentioned, the initial trial of

Adams, Henley, and Hill ended in a mistrial after the

presentation of the state’s case because of the state’s improper attempt to amend a pleading. Fiske and the other

attorneys witnessed a dress rehearsal of the state’s case and

could prepare accordingly before the second trial. Fiske

knew that Sheets and S.E.S. did not agree on whether the

women invited the men up to their room before the sexual encounter. Demain, who was in the room at the time,

could have resolved this dispute in Sheets’s favor, and

thus completely undercut S.E.S.’s version of uninvited

strangers bursting into her room. Moreover, Fiske reviewed

the police report that indicated that Demain saw S.E.S. with

the men later that night. This would seem to strongly

contradict S.E.S.’s story of a sexual assault, the men quickly

leaving the scene, and S.E.S. calling her boyfriend immediately following the alleged rape. Instead, this would

support a plausible theory of a consensual encounter

between the men and S.E.S., thus damaging the state’s

theory of the case.
16 No. 05-1573

Demain was not an irrelevant bystander. Rather, he

was present at two crucial events where the evidence is

sharply conflicting. Given the testimony at the first trial, it

was essential that Demain be found in order to determine

what he saw and heard before informed decisions about

strategy (no defense witnesses) could be made. Although

Fiske made minimal attempts to locate Demain, when the

initial attempts failed, he let the matter drop. Fiske did not

hire an investigator, and his total efforts were comprised of

asking witnesses and the University Demain’s location. As

Luchsinger, the co-defendant’s counsel, admitted during

a postconviction proceeding, he and Fiske had no real

strategic reason for their decision not to call Demain besides

“that we were not going to present a defense and ride that

horse, hoping that no defense would carry, would outweigh

the advantages of a favorable witness.” Despite the fact that

Fiske had the benefit of hearing the prosecution’s case

before a mistrial, knew the relevant inconsistencies in the

stories, and was aware that Demain had information about

these crucial facts and could resolve these key points in his

client’s favor, he chose not to track down Demain because

he had already decided not to call witnesses in the second

trial. This knowing disregard was unreasonable. See Washington at 631.

Fiske committed to a predetermined strategy without a

reasonable investigation that could have produced a pivotal

witness. Therefore we find that the conclusion of the

Wisconsin Supreme Court (that Fiske’s decision not to call

defense witnesses without first locating and interviewing

Demain was reasonable trial strategy) was not a reasonable

application of the first prong of Strickland.
No. 05-1573 17

6 As the Wisconsin Court of Appeals concluded that counsel’s

actions regarding Demain were reasonable, it did not, nor was

required to, inquire into prejudice.

Turning to the second prong of the Strickland analysis,6 we

ask whether there is a reasonable probability that, but for

Fiske’s error, the trial result would be different. See Strickland, 466 U.S. at 691. As mentioned previously, a reasonable

probability is one undermining our confidence in an

outcome. See id. at 694. In this case, Adams has established

prejudice from the failure to investigate and call Demain.

This was a very close case, and its outcome was highly

contingent on the credibility of S.E.S. Looking at Demain’s

testimony in Hill’s trial (and in the police report), he was

able to place S.E.S. with the men smoking cigarettes after the

alleged assault. He also testified that the women left with

two of the men and that they were going to the women’s

dorm room. In addition, he testified that the third man, Hill,

stayed behind for about thirty minutes playing a video

game. This could have helped explain why S.E.S. encountered Hill on the stairs after her closed-door conversation

with Sheets. Such testimony completely contradicts S.E.S.’s

description of the events of that night. Nor can we blind

ourselves to the results of Hill’s trials. Hill, who was

charged with precisely the same offenses as Henley and

Adams, was tried in February 2001 and presented Demain’s

testimony. This trial resulted in a hung jury. Eventually, the

charges against Hill were dismissed at a later trial because

of the prosecution’s failure to turn over police notes regarding their investigation. We do not contend that the result

from Hill’s trial would necessarily dictate the same result

had Fiske investigated Demain. But the outcome of that

trial, together with Demain’s testimony and the relatively

thin evidence presented at Adams’s trial, does undermine
18 No. 05-1573

our confidence in the outcome, such that there is a reasonable probability that the outcome of Adams’s trial would be

different.

III.

Adams failed to show that the Wisconsin Court of Appeals acted unreasonably when it found sufficient evidence

to support his convictions. His trial counsel’s failure to

investigate properly a crucial witness, stemming from an

intransigence regarding his trial strategy, however, constituted ineffective assistance of counsel. The Wisconsin Court

of Appeals acted unreasonably in its application of Strickland to the facts on this point. We, therefore, REVERSE the

decision of the district court and REMAND with instructions

to grant the writ, unless the state gives Adams a new trial

within 120 days.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-30-06