United States Court of Appeals 

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 14, 2015*

Decided April 15, 2015

Before

RICHARD A. POSNER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

No. 14‐3077

JON F. RAETHER,

Petitioner‐Appellee,

v.

MICHAEL MEISNER,

Respondent‐Appellant.

Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 13‐CV‐46

Nancy Joseph,

Magistrate Judge.

O R D E R

Following his conviction in Wisconsin state court for second‐degree sexual

assault of a child, Jon Raether sought a new trial on the ground that his counsel was

constitutionally ineffective. The state courts awarded him no relief, but in federal court

Raether’s arguments carried the day. A magistrate judge, presiding by consent, granted

his petition for a writ of habeas corpus, see 28 U.S.C. § 2254, and the State of Wisconsin

appeals. We affirm the decision in favor of Raether.  

                                                            

* After examining the briefs and record, we have concluded that oral argument is

unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP.

P. 34(a)(2)(C).

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 14‐3077    Page 2

Raether was charged after “Danielle N.,” then 14 years old, told a guidance

counselor that she had been raped several days earlier at a party. The counselor

contacted the police, and an officer interviewed Danielle as well as Emily Bragg, the

party’s 16‐year‐old host, and a 15‐year‐old guest, Emily Brown. Defense counsel’s

examination of these trial witnesses is the crux of Raether’s § 2254 petition.

The police officer’s report of his interview with Danielle documents her

admission that she remembered only “bits and pieces” of the alleged assault because

she had consumed several beers and a fair amount of hard alcohol. What Danielle

remembered, she said, was retreating with Raether (who was 18 years old at the time) to

the bedroom of Bragg’s absent mother. She had told Raether, she continued, that she

did not want to have sex because neither of them had protection, but he ignored her

protests and forced intercourse on her. According to the police officer, though, Danielle

could not provide any more detail about the incident. She had passed out afterward,

she said, later coming to first in Bragg’s garage, and then the next morning in a

bathroom, covered in vomit.

During Bragg’s interview, the police officer reported, she said that Danielle was

drunk, and so the others suggested that she lie down in the bedroom.  Raether then

went “back into the bedroom area,” Bragg continued, and a short time later Brown

yelled that Danielle was on the bed naked from the waist down. The group went to

investigate, and they saw Danielle on the bed, wearing only her shirt, vomiting. Raether

was in the room already when Bragg entered.

Brown told the officer that she had arrived at Bragg’s house early and later went

to get beer with a group that included Raether and Danielle. About two hours after

returning to Bragg’s house, around 1:00 a.m., she found Danielle in the bedroom

wearing only a shirt and an unhooked bra, with Raether standing next to the bed.

During the interview, the officer reported, Brown recalled that Raether immediately

denied having anything to do with Danielle’s state. He quickly left the room, Brown

had said, after which she and Bragg helped Danielle get dressed.  

Raether also agreed to talk to the police officer, and told him that he spent most

of the evening on the computer. Danielle, he said, was drunk and had made some

advances toward him, all of which he resisted.

Raether was charged with violating WIS. STAT. § 948.02(2), which proscribes

sexual contact with a person under 16, regardless of consent. See State v. Jadowski, 680
No. 14‐3077    Page 3

N.W.2d 810, 814–15 (Wis. 2004). The key issue at trial, therefore, was whether sex had

occurred, not whether Danielle had consented. At the time of the alleged assault,

Raether already was on bond for a charge of operating a vehicle without the owner’s

consent, so the state also charged him with “bail jumping” in violation of WIS. STAT.

§ 946.49. That statute defines “bail jumping” to include committing a crime while on

bond, so a conviction on the charge of sexual assault also would assure his conviction

for this offense.

The police obtained no physical evidence to corroborate Danielle’s accusation,

and the prosecutor candidly told the jury during his opening statement that he would

seek to satisfy the state’s burden of proof through the testimony of Danielle and Bragg.

Defense counsel retorted that the prosecution would fail to meet its burden of proof

because its witnesses were not believable.

Danielle testified first and gave a detailed account of the party and assault. She

had led Raether to the bedroom to make another boy jealous, she explained, and once

there he locked the door and started making advances. He would not let her leave,

Danielle said, not even to use the bathroom, so she urinated on the floor. She told the

jury that Raether then pushed her down on the bed and raped her. Later, Danielle

continued, after she and Raether had left the bedroom, he and his friends locked her in

the garage. She quickly backpedaled, though, and conceded that she did not remember

being in the garage and was relying on what her friends said the next morning. In fact,

she admitted, she had passed out in the mother’s bedroom and woke the next morning

in Bragg’s sister’s bedroom. Danielle conceded that she told no one at the party about

the alleged assault, revealing it to a different friend later the next day.

Defense counsel did not confront Danielle about the details included in her trial

testimony but omitted from the police officer’s report, such as Raether locking the

bedroom door. Neither did counsel question Danielle about inconsistencies in the

details she did provide, for instance whether she woke up in a bathroom or a bedroom.

Counsel did not even pursue Danielle’s admission on direct examination that she had

feigned personal knowledge of being in the garage, nor did the lawyer challenge

Danielle’s assertion during cross‐examination that her memory of the event had

remained constant over time. Counsel simply asked Danielle to repeat her story in an

ultimately futile attempt to poke holes in it.

Bragg, the host, testified that she had discovered the door to her mother’s

bedroom locked. She picked the lock, she told the jury, and Raether exited, fully
No. 14‐3077    Page 4

clothed. Danielle was on the bed wearing only a bra. Bragg helped her get dressed and

walk to the bathroom, where she vomited. After that, according to Bragg, Danielle had

slept in her sister’s bedroom, and a short time later Bragg watched as some of the guests

drew on Danielle’s body with a marker. The next morning, Bragg said, Danielle told her

about the rape.

Defense counsel did not confront Bragg with conflicts between her trial

testimony and the police officer’s report, in particular her new revelations that she, not

Brown, was the first to arrive at her mother’s bedroom, and that the door was locked.

Nor did counsel probe Bragg’s assertion that Danielle had told her about the rape the

next morning, which contradicted Danielle’s testimony. Likewise, counsel passed up

the chance to question Bragg about the disconnect between her testimony that she and

others had rescued Danielle and allowed others to draw with markers on Danielle.

Counsel, though, did elicit some additional details about the evening: Bragg had

ordered everyone out of the house around 12:30 in order to clean up after Danielle, who

had vomited “all over everything” and urinated on the floor of her mother’s bedroom.

Brown was called as a defense witness. Working from notes provided by his

investigator, counsel walked her through the party at Bragg’s house. She had arrived

early, she said, and then gone with Bragg and Danielle to a McDonald’s where they met

up with Raether. He accompanied them to Bragg’s house, she testified, and once there

concerned himself with the music being played in the background, brushing off

advances from Danielle. No one had gotten sick or gone into any bedroom, Brown

averred, and the three girls were awake together at around 3:00 a.m. that morning.

The prosecutor immediately impeached Brown with her prior statement to the

police. Brown conceded that the police report accurately portrays what she had told the

officer. At first she explained that her testimony on direct examination must have

concerned a different party, but then, after a reminder that she was under oath, Brown

admitted lying to protect Raether. She told the prosecutor that, in fact, she had seen

Danielle on a bed wearing no pants. After leaving the courtroom, Brown was arrested

for perjuring herself.

Raether testified that he had gone looking for a friend, Cesar, about an hour into

the party, and instead found Danielle urinating on the floor of the mother’s bedroom.

He immediately called for “Emily,” and Brown came first, followed quickly by the rest

of the group. Bragg and Brown then tried unsuccessfully, he said, to get Danielle to lie
No. 14‐3077    Page 5

down. Later he and Bragg again helped Danielle back to the mother’s bedroom to lie

down. He did not see Danielle again until Bragg found her covered in vomit much later.  

Defense counsel argued, with minimal elaboration, to the jury in closing that the

“scripted” stories of the prosecution’s witnesses did not add up, but the jury

nevertheless found Raether guilty of both the sexual assault and bail jumping, and the

trial judge sentenced him to a total of 10 years in prison, followed by 8 years’ extended

supervision. After changing lawyers Raether moved for a new trial, claiming that he

was prejudiced by his trial counsel’s deficient cross‐examination of Danielle and Bragg,

the lawyer’s decision to call Brown as a defense witness, and his choice of defense

theory—that Raether had insufficient time to commit the assault. At an evidentiary

hearing on Raether’s motion, trial counsel admitted receiving and reading the police

officer’s reports before trial. But when asked about his cross‐examination of Danielle

and Bragg, counsel could not say why he had not explored the discrepancies between

what they had told the police and the jury. All he said is that his strategy, consistent

with his chosen theory, was to minimize the number of times these witnesses

mentioned Raether and Danielle together in the bedroom. And when asked about his

direct examination of Brown, trial counsel acknowledged that he based his questions on

his investigator’s report, not the police report, even though he knew that the two

accounts differed. Counsel also acknowledged letting his investigator prepare Brown to

testify, even though he was uncertain if the investigator knew about Brown’s statement

to the police. “I can’t say if there’s a strategic reason,” counsel conceded, “for, um,

making the choices I made.”  

The trial court refused to grant a new trial, and the state appellate court, the last

state court to address Raether’s claim of ineffective assistance, upheld that ruling. The

appellate court agreed with Raether that his lawyer’s handling of the three witnesses

was deficient, but, the court concluded, not prejudicial. The state’s evidence placed

Raether “in the bedroom with a nearly naked” Danielle, the court reasoned, and

Raether’s own checkered past (he had 13 prior convictions, mostly for joyriding or

property crimes) had undermined his credibility. Thus, the court concluded, it could

not say that “but for counsel’s unprofessional errors the result of the proceeding would

have been different.”

In his § 2254 petition Raether argued that the state appellate court had

unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984). That benchmark

decision for claims of ineffectiveness provides that the Sixth Amendment’s guarantee of

the assistance of counsel is violated if an attorney’s actions are objectively unreasonable
No. 14‐3077    Page 6

and prejudice the defendant. Id. at 687–88, 693. The magistrate judge agreed with

Raether that the state court’s application of Strickland is unreasonable and

independently determined that Raether’s counsel was ineffective.  

On appeal the state fails to engage the particular facts of this case, instead

proceeding as if stating the standard of review is enough to defeat the claim. The state

reminds us of the deferential review ordinarily mandated by the Antiterrorism and

Effective Death Penalty Act, and the exceedingly high burden faced by petitioners who

complain about the quality of their representation at trial. With these points no one can

quibble, but they are no substitute for a defense of the state court’s reasoning in this

case, which we conclude is indefensible.

Although the magistrate judge concluded that the state appellate court had

unreasonably applied Strickland, a more immediate problem is that the state court’s

analysis is contrary to Strickland. A state court’s decision is “contrary to . . . clearly

established federal law” if it does not apply the proper legal rule to a petitioner’s claim.

See Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013); Mosley v. Atchison, 689 F.3d 838,

850 (7th Cir. 2012). That is what happened here. Although the court identified Strickland

as the controlling legal authority, it did not apply Strickland’s framework. Rather, in

assessing whether Raether was prejudiced by counsel’s errors, the court required a

showing of but‐for causation. That is not the standard. Instead a petitioner must

demonstrate a “reasonability probability”—defined as one “sufficient to undermine

confidence in the outcome”—that counsel’s errors materially affected the outcome of

the proceeding. Strickland, 466 U.S. at 694.  

It is true that in Sussman v. Jenkins, 636 F.3d 329, 359–60 (7th Cir. 2011), we

concluded that the omission of Strickland’s “reasonable probability” language did not

result in a state‐court decision that was contrary to Strickland. But we reached the

opposite conclusion about nearly identical missteps in Mosley, 689 F.3d at 850–51, and

Martin v. Grosshans, 424 F.3d 588, 592 (7th Cir. 2005). This case is more like Mosley. There

we noted that the state’s case “was far from unassailable,” and the state court’s opinion

did not assure us that, despite the use of “shorthand,” the court truly applied the correct

standard. Mosley, 689 F.3d at 850. Here the prosecutor was candid about the assailability

of his case, and, as we will explain, the state appellate court’s analysis reflects the

application of a more onerous standard than that called for by Strickland. Moreover,

unlike Sussman, the state court never correctly articulated Strickland’s prejudice

standard, or cited to a decision of the state courts that does. Cf. Sussman, 636 F.3d at 360.

So, as in Mosley, the state court’s decision is contrary to Strickland, meaning that we
No. 14‐3077    Page 7

must independently determine whether Raether’s counsel was constitutionally

ineffective. See Mosley, 689 F.3d at 853.

Viewed as a whole, see Raygoza v. Hulick, 474 F.3d 958, 963 (7th Cir. 2007), we

think counsel’s performance fell well short of the mark. We can see no reasonable

justification for failing to make use of the crucial witnesses’ prior inconsistent

statements. See Dixon v. Snyder, 266 F.3d 693, 703 (7th Cir. 2002); Driscoll v. Delo, 71 F.3d

701, 710 (8th Cir. 1995). Counsel’s explanation that he sought to minimize the amount of

testimony placing Raether in the bedroom is nonsensical. Raether’s own testimony

placed him in the bedroom, so counsel’s choice to abandon certain lines of questioning

in pursuit of this goal was pointless, particularly when those lines of questioning would

have impeached otherwise damning testimony. See Rivas v. Fischer, 780 F.3d 529, 549–50

(2d Cir. 2015); Davis v. Lambert, 388 F.3d 1052, 1063–64 (7th Cir. 2004).

The state appellate court concluded on the basis of counsel’s testimony that his

choice was “strategic,” and so accorded that choice substantial deference. This

reasoning is flawed, since it could not have been permissible strategy to cross‐examine

Danielle and Bragg in a manner that, as the court conceded, was deficient. What’s more,

labeling a choice “strategic” does not ipso facto shield it from collateral attack. Instead,

under Strickland the question is the extent to which a strategic choice is supported by

counsel’s preparation. See Campbell v. Reardon, 780 F.3d 752, 763–64 (7th Cir. 2015). Here

counsel’s preparation rendered this “strategic” choice patently unreasonable, and the

case law does not mandate deference to unreasonable defense tactics. See Richards v.

Quarterman, 566 F.3d 553, 564, 567 (5th Cir. 2009); United States ex rel. Hampton v. Leibach,

347 F.3d 219, 249 (7th Cir. 2003).  

The state court examined the prejudice flowing from each alleged error

individually, but the correct question is whether Raether was prejudiced by counsel’s

errors in the aggregate. See Toliver v. McCaughtry, 539 F.3d 766, 778 (7th Cir. 2008);

Martin, 424 F.3d at 592. We conclude that he was: In this battle of credibility, counsel’s

failure to make use of the witness’s prior statements doomed Raether’s prospects from

the beginning. Had counsel cross‐examined the witnesses adequately, he could have

cast significant doubt on Danielle’s and Bragg’s testimony, which was ripe for

impeaching. His failure to do so is all the more striking because counsel told the jury he

would undermine the witnesses’ credibility “but never followed through on this

suggestion.” Wiggins v. Smith, 539 U.S. 510, 536 (2003); see Hampton, 347 F.3d at 257. And

counsel compounded his error during his closing argument. See Hall v. Washington, 106

F.3d 742, 750 (7th Cir. 1997). Having failed to place into evidence the various
No. 14‐3077    Page 8

inconsistencies between the witnesses’ testimony and prior statements, counsel

neglected to make use of the inconsistencies that did appear in the record. Instead, he

characterized the testimony of Danielle and Bragg as “scripted,” a description that

served to highlight the ways in which their testimonies aligned. And counsel must have

known better than to call a witness who was about to perjure herself. As the district

court recognized, all counsel needed to do was undermine the credibility of the state’s

two witnesses. No other evidence existed on which to convict Raether. “Counsel’s

failure to use available tools to undermine this credibility resulted in prejudice.”

Williams v. Washington, 59 F.3d 673, 684 (7th Cir. 1995). Because of counsel’s

substandard performance, Raether’s trial did not reliably test whether he did as he was

accused.

The grant of habeas corpus relief is AFFIRMED. The stay issued by the

magistrate judge on December 23, 2014, is DISSOLVED. The State of Wisconsin shall

have 120 days in which to release or retry Raether.