In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1470

ELIJAH JONES,

Petitioner-Appellant,

v.

PAMELA WALLACE,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 05-C-172—Aaron E. Goodstein, Magistrate Judge.

____________

ARGUED MARCH 4, 2008—DECIDED APRIL 29, 2008

____________

Before CUDAHY, KANNE, and EVANS, Circuit Judges.

PER CURIAM. Elijah Jones was convicted in Wisconsin

state court of first degree sexual assault of a child. After

exhausting state post-conviction remedies, Jones sought

federal habeas corpus relief under 28 U.S.C. § 2254. He

argues that his counsel was ineffective at trial for failing

to discover and introduce evidence that would have

impeached the testimony of the victim—the only evidence offered by the prosecution. The district court denied

Jones’s petition without holding an evidentiary hearing.

Jones now asks us to remand for a hearing so that he

might further develop his claims. But Jones does not
2 No. 07-1470

allege facts that, if proven, would warrant relief. Therefore we affirm.

Jones’s conviction was based exclusively on the testimony of his victim, “K.J.” According to K.J.’s trial testimony, she was 12 years old when Jones assaulted her.

At the time, Jones was dating her mother. K.J.’s family

did not have a clothes washer and dryer, so K.J. went to

Jones’s apartment to do the family’s laundry. Jones picked

her up at home and drove her to his apartment. During

the drive, Jones asked whether she had boyfriends or

was sexually active.

While at the apartment, K.J. watched television on the

couch. Jones sat down next to her and covered them both

with a blanket. Under the blanket, he began to rub her

thigh and then her vagina, over her clothes. She asked

him to stop, and he did. He then took a shower and

emerged naked. He asked her to look at his body and asked

if she had pubic hair like he did. After K.J. had been at

Jones’s apartment for about two hours, he took her

home. He told her not to tell anyone what had happened

or they would both get in trouble. Within two days,

however, she told her cousin, and her mother eventually

found out and questioned her, resulting in a report to

the police.

There were four discrepancies between K.J.’s testimony

at trial and her previous statements to officers and at a

preliminary hearing: (1) whether the security guard at

Jones’s apartment building momentarily came to the

door to talk to Jones around the time of the assault;

(2) whether K.J.’s mother had warned her to be careful

around Jones because he “might try something;” (3)

whether Jones was naked when he touched her; and,

most important for this appeal, (4) whether K.J.’s mother
No. 07-1470 3

called Jones’s apartment while K.J. was there and, if she

did, whether K.J. spoke to her. Counsel’s failure to fully

exploit the fourth discrepancy is the basis for Jones’s

collateral attack.

At trial, defense counsel emphasized three of these

discrepancies: whether the security guard came to the

door, whether Jones was naked during the assault, and

whether K.J. spoke with her mother when she called.

Counsel argued that the inconsistencies collectively

undermined K.J.’s credibility. What counsel failed to do,

however, was to investigate Jones’s cell phone and land

line records to determine if the call from K.J.’s mother

actually occurred. Jones now produces call records for

his cell phone that do not show an incoming call from

K.J’s mother, as well as a letter from one phone company

stating that its records show that Jones did not have a

land line at the time of the offense. Jones argues that

counsel could have used these records to impeach K.J.

more effectively, changing the question whether she

talked to her mother to whether her mother even called.

Jones claims this change would have more persuasively

undermined K.J.’s account and may even have suggested

she fabricated her testimony. Depending on its nature,

additional impeachment in this case could be of great

importance because Jones was convicted based only

on K.J.’s testimony.

Though the trial judge was without the benefit of the

phone records, she considered the other three discrepancies argued by counsel when determining Jones’s guilt.

She determined, however, that they did not impair K.J.’s

credibility as to the actual assault. Instead, the judge

focused on K.J.’s demeanor and the fact that her testimony regarding the assault itself was vivid and con-
4 No. 07-1470

sistent at all times. The judge noted that any discrepancies

between K.J.’s trial testimony and earlier statements

during her initial report to police were of little consequence because the officer who interviewed K.J. did not

have a clear recollection of his conversation with her

and because he merely conducted a brief screening interview before directing her to the appropriate officers

for a complete investigation. The judge also pointed to

numerous other specific details that K.J. testified to,

such as the layout of the room, that Jones had offered her

a Klondike bar, the timing of the event, where he was in

the room, what he wore, and other like details that

were undisputed and bespoke her powers of observation. The judge determined that K.J.’s testimony contained

far more consistencies than inconsistencies and that the

consistencies outweighed any discrepancies in minor

details that were extraneous to the assault. The judge

also found that K.J. was credible because she did not

embellish her story. After finding Jones guilty, the judge

sentenced him to 28 years in prison.

Jones pursued a direct appeal as well as collateral relief

in the Wisconsin courts, arguing the ineffectiveness of

his trial counsel. See State of Wisconsin v. Jones, No. 02-0554-

CR (Wis. Ct. App. Sept. 30, 2003). At his post-conviction

proceeding, Jones first produced his cell phone records

showing that no call was placed to his phone during

the time that K.J. was at his apartment on the day of the

incident (though he did not yet produce the land line

records he now contends counsel should have investigated). Jones argued that his attorney should have investigated his cell phone records and used them to impeach

K.J. regarding her testimony that her mother had called

the apartment.
No. 07-1470 5

The Wisconsin Court of Appeals rejected Jones’s claims

without an evidentiary hearing. It found that the evidence would not have sufficiently undermined K.J.’s

credibility to change the outcome of Jones’s trial and

thus counsel’s failure to discover it was not prejudicial.

The court noted that counsel had already mounted an

unsuccessful attack on K.J’s credibility based on similar

discrepancies, and that even if counsel had discovered

and admitted Jones’s cell phone records, the records did

not preclude the possibility that the call from K.J’s mother

was placed on a land line.

Jones next sought relief in the district court under

§ 2254. He again produced the cell phone records, but

added a letter from a telephone company stating that he

did not have a land line at the time of the incident. He

reiterated his argument that, had counsel investigated

and examined K.J. on this discrepancy, especially when

combined with other inconsistencies in her testimony,

there is a reasonable probability that the outcome of trial

would have been different. The district court determined

that the evidence did not show that counsel’s failure to

procure the phone records was prejudicial. It also denied

an evidentiary hearing because Jones did not allege facts

that would entitle him to relief, and thus he was not

entitled to a hearing.

On appeal, Jones argues that he was entitled to an

evidentiary hearing in the district court to prove counsel’s

ineffectiveness, and he asks us to remand for a hearing. The

state courts refused Jones’s request for a hearing. Accordingly, he is not at fault for failing to develop the factual

record, and we look only to whether, if proven, his proposed facts would entitle him to relief. See Richardson v.

Briley, 401 F.3d 794, 800 (7th Cir. 2006); Davis v. Lambert,
6 No. 07-1470

388 F.3d 1052, 1059-62 (7th Cir. 2004); Matheney v. Anderson,

253 F.3d 1025, 1038-39 (7th Cir. 2001).

To obtain relief, Jones must demonstrate that the Wisconsin Court of Appeals’ decision was either contrary to,

or an unreasonable application of, Supreme Court precedent. See Davis, 388 F.3d at 1058-59; Harris v. Cotton, 365

F.3d 552, 555 (7th Cir. 2004). Jones proceeds under the

theory that the state court’s conclusion was an unreasonable application of the correct precedent. To be unreasonable, the decision must not only be incorrect, but so

incorrect that it lies outside of the range of reasonable

conclusions. Dixon v. Snyder, 266 F.3d 693, 700, 703 (7th

Cir. 2001); Matheney, 253 F.3d at 1041; Washington v. Smith,

219 F.3d 620, 628 (7th Cir. 2000).

Because Jones must show facts that would warrant

relief if proven, the reasonableness inquiry folds into his

request for a hearing, leaving us to ask: if Jones successfully proved all he claims he would prove at a hearing,

would his evidence establish that the Wisconsin Court

of Appeals’ decision that counsel performed effectively

was unreasonable? If so, then we must remand for a

hearing.

Jones’s telephone records do not undermine the reasonableness of the Wisconsin Court of Appeals’ decision.

Though counsel’s failure to investigate impeaching evidence can constitute deficient performance, see Harris,

365 F.3d at 556; Washington, 219 F.3d at 628, Jones cannot

show that he was prejudiced, that is, he cannot show

that the existence of his phone records undermines confidence in his conviction, see Davis, 388 F.3d at 1064; Harris,

365 F.3d at 555. The question of the phone call is too far

afield from the central facts of the assault. Moreover,

the evidence he presents is not actually impeaching.
No. 07-1470 7

First, Jones’s proposed impeachment evidence is peripheral to the central facts of the crime and does not rise to

the level of other cases in which this court found ineffective assistance for failure to investigate and impeach. For

instance, in Davis, the defendant’s attorney failed to

investigate or present any eyewitnesses to support the

defendant’s theory of self-defense, including the only

sober eyewitness to the altercation in question. Davis,

388 F.3d at 1056, 1062-64. Similarly, in Harris, the defendant’s attorney did not investigate a toxicology report

which showed that the victim was under the influence

of cocaine and alcohol, evidence that would have significantly strengthened the defendant’s claim of self-defense.

Harris, 365 F.3d at 554, 556-57. In Washington, counsel did

not investigate or present several eyewitnesses who

corroborated the defendant’s alibi as well as his argument

that the murder weapon did not belong to him. Washington,

219 F.3d at 629-31. Lastly, in Dixon, the defendant was

charged with murder, but the only eyewitness recanted

his statement to police that incriminated the defendant.

Dixon, 266 F.3d at 696, 704. Counsel did not impeach the

earlier statement by cross-examining the witness with the

later recantations. Id. at 704. The unifying theme in these

cases is that the overlooked evidence or impeachment

involved facts central to the actual crime.

Unlike these cases, Jones’s counsel failed to investigate

phone records that did not dispute the central facts of

Jones’s assault on K.J. Their use to impeach K.J. could

undermine only her recollection of the phone call, which

itself is only loosely related by temporal proximity to the

assault. It is the type of peripheral fact about which a

witness could understandably be mistaken without

undermining the credibility of her testimony about the
8 No. 07-1470

assault. Next to her clear and consistent accounts of the

assault, any mistaken recollection about the phone call is

of minor importance.

Instead, this case more closely resembles Murrell, in

which the defendant argued that his counsel was ineffective for failing to impeach a night club security guard

with prior testimony. Murrell v. Frank, 332 F.3d 1102,

1107-08, 1112-13, 1115. But the inconsistency was slight

(whether the guard saw the defendant before he dropped

a gun or saw him next to the gun immediately after he

dropped it) such that it would not have undermined

the guard’s credibility on the central issue of whether

the defendant was the shooter. Id. Similarly, in Lowery,

counsel’s failure to impeach a prosecution witness was

inconsequential because the witness’s credibility had

already been damaged by his admission that he was

receiving prosecutorial leniency in exchange for his

testimony. Lowery v. Anderson, 225 F.3d 833, 843-44 (7th

Cir. 2000). Moreover, his testimony on the critical points

was consistent and was corroborated by the defendant’s

own admissions to police and to his cell mate. Id.

Like these cases, the details of the phone call and even

the question of its existence are of little importance to the

central facts of the case. Moreover, the Judge did consider impeachment already in the record regarding K.J.’s

recollection of the call, and found her arguable inconsistency overshadowed by her confident demeanor and

consistent recollection about the specific details of how,

when, and where Jones actually touched her. While we

are mindful that K.J.’s testimony was uncorroborated, a

fact that adds appreciable weight and urgency to Jones’s

arguments, we require a more effective attack on her

credibility before we will deem the Wisconsin Court of

Appeals’ decision unreasonable.
No. 07-1470 9

Second, the evidence on which Jones relies would not

show prejudice because it is not in fact impeaching. The

evidence does not show conclusively that K.J. lied or

was mistaken because the phone records do not preclude

the existence of another phone in the apartment—either

another cell phone that Jones possessed or borrowed

for which he did not produce call records, or a land line

from a company other than the one whose letter he submits. Jones could have deposed K.J.’s mother and asked

if she called, or presented additional evidence that no

other phones were present, but he did not. At argument,

Jones opined that such additional supporting evidence

could possibly be produced if we granted a hearing. But

this argument puts the cart before the horse. It is Jones’s

burden to show that the facts he alleges would warrant

relief before we can remand for a hearing. Now, not later,

is the time to produce the evidence that the Wisconsin

Court of Appeals’ decision was unreasonable. At best,

Jones’s records rule out some ways that the call may

have occurred, but they do not disprove, or even necessarily oppose, K.J.’s testimony that her mother called.

Jones’s phone record evidence, even if true, does not

sufficiently undermine the reliability of his trial and, thus,

the Wisconsin Court of Appeals’ ruling on counsel’s

adequacy was reasonable. Therefore, Jones is not entitled to a hearing, and the judgment of the district court

is AFFIRMED.

USCA-02-C-0072—4-29-08