### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 13

‐ 2243

M ICHAEL C ARTER

,

Petitioner

‐ Appellant

,

v.

S TEPHEN D UNCAN

, Warden,

Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:10

‐ cv

‐ 03783

— Harry D. Leinenweber

, Judge

.

____________________

A RGUED A PRIL 21, 2015

— D ECIDED M ARCH 30, 2016

____________________

Before E ASTERBROOK and R IPPLE

, Circuit Judges

, and

R EAGAN

, District Judge

. 

R IPPLE

, Circuit Judge

. On September 12, 1999, Friday Gard

‐

ner was shot to death in front of an apartment building on the

south side of Chicago. The State of Illinois charged three men,

including Michael Carter, with Gardner’s murder. Mr. Carter

 The Honorable Michael J. Reagan, of the United States District Court for

the Southern District of Illinois, sitting by designation.2 No. 13

‐ 2243

was tried alongside his brother, Michael Stone, in a single

trial. Both were convicted of murder; Mr. Carter was sen

‐

tenced to thirty years’ imprisonment. Following an unsuc

‐

cessful state postconviction proceeding, Mr. Carter filed a pro

se petition for habeas corpus in the district court under 28

U.S.C. § 2254. The district court denied relief on each of the

eight grounds presented in his petition and also denied a cer

‐

tificate of appealability, see 28 U.S.C. § 2253(c). We granted a

certificate as to a single claim—whether Mr. Carter received

effective assistance of counsel. We also appointed appellate

counsel.

Mr. Carter brings to us an ineffective assistance claim. His

claim turns on the potential effect of the testimony of two wit

‐

nesses who were not called in his defense at trial. The Illinois

Appellate Court determined that the proffered testimony

would not have changed the outcome of the trial. Although

the state court’s analysis stumbles in some respects, we nev

‐

ertheless must conclude that its decision was not unreasona

‐

ble. Accordingly, given our deferential standard of review,

we affirm the district court’s judgment denying habeas relief

to Mr. Carter.

I

BACKGROUND

A.

Gardner was murdered in the course of a heated argument

about the robbery of an apartment occupied by Stone and

other of Mr. Carter’s relatives. Mr. Carter and Stone believed

Gardner to have been responsible.No. 13

‐ 2243 3

At the time of Gardner’s murder, Mr. Carter and Gardner

each had relatives living on the second floor of a building at

61st and May in Chicago. In one apartment, Gardner’s cousin,

Antonio Phillips, lived with his mother, Rena Phillips, and her

other children. Stone lived next door, in an apartment he

shared with his cousin (and Mr. Carter’s cousin) Felicia An

‐

derson, her fiancé, Corey Grant, and their children. Both

Gardner and Mr. Carter—neither of whom lived in the build

‐ ing—at times visited their relatives there.

On the afternoon of September 12, 1999, the events culmi

‐ nating in Gardner’s murder later that night began to unfold:

a robbery, a search for the robber, a larceny in retaliation, and,

eventually, a heated argument about the robbery that ended

in gunfire. First, two men broke into the apartment occupied

by Mr. Carter’s relatives and robbed Grant at gunpoint. The

robbers took money, jewelry, and marijuana packaged for

sale. Grant was not alone at the time of the robbery; another

of Mr. Carter and Stone’s cousins, Michella Anderson, was

present, as were others, although the apartment’s other occu

‐

pants, Felicia Anderson and Stone, were not. One of the rob

‐

bers had a gun, and, while no one was shot, Grant was struck

with a baseball bat on his head in the course of the robbery.

After the perpetrators fled, Grant ran next door and began

pounding on the door and shouting about the robbery. Anto

‐

nio Phillips emerged with Gardner, who was visiting at the

time, and, according to eyewitnesses, both joined the unsuc

‐

cessful effort by Grant and Michella Anderson to chase down

the robbers.

Later, Stone and Felicia Anderson returned home, accom

‐ panied by Felicia’s sister, LaTonya Cheeks. At some point af

‐

ter learning of the robbery, Stone called Mr. Carter for help in4 No. 13

‐ 2243

determining the identity of the robbers. Mr. Carter came to

the building with a friend, Cortez Jones. Jones stated that he

had heard from a friend that Gardner had been selling pack

‐ aged marijuana at another location and bragging about rob

‐ bing someone at 61st and May. Grant, the robbery victim, de

‐

nied Gardner’s involvement, stating that Gardner in fact had

tried to chase down the assailants with him. Grant was unable

to convince Stone, Cortez, and Mr. Carter. At some point dur

‐ ing the day, Stone acquired a gun and stashed it in a locked

basement storage area in the apartment building.

According to witnesses at Mr. Carter’s murder trial, later

that evening, Mr. Carter, Stone, and Jones broke into Gard

‐

ner’s van, which was parked outside the apartment building,

stole his radio, and left. Gardner saw them through a window

and yelled at them to stop and that he had nothing to do with

the earlier robbery. Gardner called his friend, Tommy Gaston,

who arrived sometime later. Gaston and Gardner met down

‐

stairs and went to the van, where they observed that the radio

had been stolen. Gardner’s relative, Rena Phillips, and her

boyfriend, Paul Calmese, arrived and began talking with

Gardner and Gaston outside.

While Gardner and the others were still outside,

Mr. Carter and Jones returned, and a heated argument en

‐

sued. Stone witnessed the beginning of the exchange from up

‐

stairs and went to retrieve the gun from the storage space.

Now armed, he emerged from the adjacent alley and headed

towards the argument on the street. In the ensuing minutes,

Gardner was shot fatally, struck by two bullets in the abdo

‐

men. Stone, Jones, and Mr. Carter all fled the scene.

Police officers patrolling the area were in close enough

proximity to view flashes and hear gunshots. OfficerNo. 13

‐ 2243 5

Cedric Taylor ran to the scene, arriving within seconds. He

attempted to chase the assailants but lost sight of them and

returned to the scene. Officers immediately began taking

statements from the numerous eyewitnesses.

B.

The State charged Mr. Carter, Stone, and Jones with the

murder of Gardner. In 2002, Mr. Carter and Stone proceeded

to trial together, represented by separate counsel. Jones was

tried in a separate proceeding.

In Mr. Carter and Stone’s trial, the State’s theory was that

two sets of shots were fired: an initial set by Stone and a sec

‐

ond set from either Jones or Mr. Carter. It argued that all of the

defendants were armed and that they fled after the fatal shots

were fired and discarded their weapons. The State told the

jury that, under an accountability theory, it was irrelevant

which individual actually had fired the fatal shots.

Stone admitted to shooting Gardner and presented both

self

‐ defense and defense of others as a justification. Stone con

‐

tended that he had seen Gardner point a gun, or attempt to

point a gun, at Mr. Carter, and that only then did Stone fire.

Mr. Carter argued that he was unarmed and was not respon

‐

sible for the actions of Stone or Jones.

The eyewitness statements, both to the police and at trial,

varied widely, and several witnesses testified inconsistently

with their prior statements to law enforcement in the days fol

‐ lowing Gardner’s murder. Based on those initial statements

given to police and testimony before the grand jury, the State

assembled a witness list to support its case, consisting of law6 No. 13

‐ 2243

enforcement officers, Lenisha Pearson (Gardner’s then

‐ girl

‐ friend), Grant, Felicia Anderson, Rena and Antonio Phillips,

and Cheeks. 1

Except for the officers, each of the witnesses who testified

at trial had some preexisting relationship either to Gardner or

to the alleged perpetrators. The first group had a relationship

to the victim, Gardner. At trial, Gardner’s relatives, Rena and

Antonio Phillips, testified that the shots fired at Gardner came

from the direction of Mr. Carter and Jones, not Stone. Both

testified that they saw Jones fire shots first, and both testified

that they saw Mr. Carter with a gun. Rena Phillips testified

that she saw Mr. Carter shoot as well. Antonio Phillips testi

‐

fied that by the time the second set of shots were fired, he was

running toward the scene from his prior vantage point. Both

testified that they saw Mr. Carter and Jones flee. Neither wit

‐

ness said anything about Stone. Pearson, Gardner’s then

‐ girl

‐

friend, testified that she had heard two sets of shots, the first

of which came from Stone, and the second of which came

from either Mr. Carter or Jones. She also testified that she saw

Gardner throughout the exchange and that he did not have a

gun. Gaston, a friend of Gardner’s, testified that he heard, but

did not see, an initial shot. He then saw Jones pull a gun from

his pocket and shoot at Gardner four times, these shots being

louder than the initial single shot. He testified that he then

saw Mr. Carter and Jones flee. He did not see Gardner with a

gun that night.

1 Mr. Carter’s former girlfriend, Sharon Triplett, also testified, but was

called only for the purpose of identifying his vehicle.No. 13

‐ 2243 7

The second set of State’s witnesses were Mr. Carter’s rela

‐

tives and friends—Felicia Anderson, Grant and Cheeks. Alt

‐ hough their testimony was part of the State’s case

‐ in

‐ chief, it

was more problematic for the prosecution. Felicia Anderson,

Mr. Carter’s cousin, testified that she did not see the shooting,

but that she did see Gardner with a gun and also saw Gaston

remove it from the scene. She was impeached, however, with

her prior signed statement to police and her grand jury testi

‐

mony. In those earlier statements, she had said that she was

standing near the shooting, heard shots, turned to face the

scene, and witnessed Mr. Carter pointing a gun at Gardner.

She left the scene shouting that Mr. Carter had “shot him.” 2

At trial, she attempted to explain these discrepancies by

claiming that her earlier statements were based on what oth

‐

ers had told her rather than what she personally had ob

‐

served.

Grant, Felicia’s fiancé, claimed to have been inside the

apartment during the shooting. Grant testified only that he

saw people running from the scene after hearing shots. He

stated on cross

‐ examination that he had seen Gardner with a

gun earlier in the day when he had tried to chase down the

people who had robbed Grant.

Cheeks, Felicia’s sister, also testified at trial that she saw

Gardner pull a gun and point it at Mr. Carter and that Stone

shot in defense. She later contradicted that testimony and

stated that she had seen Gardner point his gun in the air ra

‐

ther than at Mr. Carter. Also, Cheeks initially claimed that

only Stone shot at Gardner, but on cross she stated that she

heard shots from the area where Jones and Mr. Carter were

2 R.14

‐ 7 at 91.8 No. 13

‐ 2243

standing. Her prior signed statement and grand jury testi

‐

mony were published to the jury. In them, Cheeks stated that

she did not see anything in Gardner’s hands, that Stone had

shot first and fired three times, and that a fourth shot was

fired by either Jones or Mr. Carter.

The physical evidence presented at trial showed that

Gardner was shot twice with .380 caliber bullets, and the par

‐

ties stipulated that they had been fired from the same gun.

Three .380 cartridge casings were also recovered from the

scene within a few feet of the blood stain from Gardner’s

body, but it could not be determined if they were from the

same weapon that killed Gardner. No other evidence linked

the bullets or the casings to any particular defendant. More

than one witness, including a police officer stationed nearby

who heard the shots, testified that there was an initial set of

shots and a second set, and the two sounded somewhat dif

‐

ferent. Gardner’s autopsy report showed no evidence of

close

‐ range firing, although multiple witnesses had stated

that Jones and Mr. Carter were within a few feet of Gardner

at the time of his murder.

The attorneys representing Stone and Mr. Carter, respec

‐ tively, called only two defense witnesses: Michella Anderson,

a cousin of Stone and Mr. Carter, and Stone himself.

Michella Anderson testified that she saw Gardner pull a gun

and point it in the air. A shooter, whom she could not identify,

entered from the alley and fired. She also testified that, after

Gardner was shot, Gaston retrieved Gardner’s gun, put it in

his car, and drove away. Unlike Felicia Anderson and Cheeks,

Michella Anderson had not made a statement to the police

immediately after the incident and was not called to appear

before the grand jury. She did testify that she had met withNo. 13

‐ 2243 9

attorneys for the State and for the defendants at various

points during the investigation and had informed each of

them that she had seen Gardner with a gun.

Stone testified that he alone shot Gardner and that he did

so only after Gardner pointed a gun at Mr. Carter. He claimed

that he was the only shooter and that he never saw Mr. Carter

with a gun that evening. Mr. Carter did not testify.

In closing arguments, Stone’s attorney focused on his

self

‐ defense theory and relied in significant measure on

Michella’s testimony that Gardner, the victim, was visibly

armed. Mr. Carter’s attorney focused on the lack of evidence

of any close

‐ range firing and the evidence that Mr. Carter was

within a few feet of Gardner at the time of the shooting. He

contended that the evidence could support that Jones and

Stone had fired their weapons, but that there had been no ev

‐

idence that Mr. Carter knew that Jones was armed or that

Stone was there at all. The State’s attorney countered that it

did not matter who did the shooting because the evidence

demonstrated that all three men were armed. Further, the

State noted that Mr. Carter was responsible for bringing Jones

to the scene, and, following the shooting, Mr. Carter, Stone,

and Jones fled the scene while the other witnesses remained.

The jury found both Stone and Mr. Carter guilty of

first

‐ degree murder. Jones also was convicted of first

‐ degree

murder in a separate proceeding. Each was sentenced to

thirty years’ imprisonment.

Mr. Carter and Stone filed a joint direct appeal alleging

multiple points of error, including that trial counsel was inef

‐

fective for failing to preserve objections to evidence about the10 No. 13

‐ 2243

marijuana stolen from the home or to otherwise request a lim

‐ iting instruction, as well as other claims not relevant to the

present petition. No other ineffective assistance claims were

raised. In the course of affirming the trial court’s judgment,

the Appellate Court of Illinois noted “that the evidence in this

case was not closely balanced.” 3 The Illinois Supreme Court

denied leave to appeal.

C.

In 2005, Mr. Carter and Stone filed a joint pro se petition

for postconviction relief in the Circuit Court of Cook County.

In the petition, they asserted that trial and appellate counsel

had been ineffective. They contended specifically that trial

counsel had been ineffective for failing to call two additional

witnesses, Jeremiah McReynolds and Paul Calmese, failing to

impeach certain witnesses, and emphasizing Stone’s self

‐ de

‐

fense theory over Mr. Carter’s mere presence theory. They

further contended that counsel had failed to present available

evidence to support the claim of self

‐ defense. Finally, they

claimed that appellate counsel was ineffective for failing to

raise the ineffective assistance claims based on trial counsel’s

performance.

Attached to the petition were several affidavits, including

one from McReynolds. McReynolds stated that he also lived

at 61st and May and that, on the night of the murder, had

heard a commotion, looked outside, and observed the argu

‐

ment across the street. During the argument, McReynolds

3 R.14

‐ 1 at 9.No. 13

‐ 2243 11

“observed Friday Gardner pull an object out from behind his

back and then...heard several shots ring out from the alley

‐

way.” 4 He identified the shooter as “Man,” a nickname trial

witnesses had indicated belonged to Stone. 5 McReynolds

stated that he “did not personally observe anyone else doing

any shooting,” and that he observed Mr. Carter and Jones

“scatter in an effort to avoid being shot.” 6 He indicated that

he had shared his account with Cheeks and offered to testify

and that he eventually learned that he had been placed on

Mr. Carter’s witness list. McReynolds’s affidavit concluded:

“Although I was available and in Chicago, Illinois at all times

in which the trial was going on, no lawyer or anyone else from

the court contacted me or called me as a witness about the

facts that happened on September 12, 1999.” 7

In support of the assertion regarding Calmese’s probable

testimony, Mr. Carter attached a police report to his petition.

Following the shooting, Calmese told police that he had been

talking with Gardner when Mr. Carter and Jones arrived and

the argument began. He saw that Jones had a gun during the

argument. He also saw that someone came from the alley and

shot at Gardner, and Jones subsequently also shot at Gardner.

The Illinois circuit court denied the petition and a subse

‐

quent motion to reconsider. Mr. Carter appealed to the Illinois

Appellate Court and was represented by the Office of the

4 R.14

‐ 2 at 22.

5 Id.

6 Id.

7 Id.12 No. 13

‐ 2243

State Appellate Defender. The State appellate court affirmed. 8

It reached the merits of Mr. Carter’s ineffective assistance ar

‐

guments and rejected them. It first set forth the familiar two

‐

prong deficiency

‐ and

‐ prejudice standard under Strickland v.

Washington

, 466 U.S. 668 (1984), citing both Strickland and a

state case, People v. Coulter

, 815 N.E.2d 899, 905 (Ill. App. Ct.

2004). The court then continued, again citing Coulter : “To

show prejudice, defendant must show that counsel’s deficient

performance rendered the result of the proceeding unreliable

or fundamentally unfair.” 9

In its analysis, the court skipped the deficiency prong and

stated that “even if trial counsel’s failure to call McReynolds

and Calmese to testify fell below an objective standard of rea

‐

sonableness, defendant’s claim fails because he is unable to

show resulting prejudice.” 10 The court noted that the evidence

in the case was “not close,” and the testimony of McReynolds

and Calmese “would not have been exculpatory and would

have merely been cumulative of the testimony presented by

Felicia Anderson, LaTonya Cheeks, Michell[a] Anderson, and

co

‐ defendant Stone. Defendant’s theory of defense,” it con

‐

cluded, “was presented at trial and corroborated where these

witnesses testified that the victim had a gun and defendant

did not.” 11 The court further noted that McReynolds’s affida

‐

8 Id. at 157.

9 Id. at 168–69.

10 Id. at 169.

11 Id.No. 13

‐ 2243 13

vit was “insufficient and unsupportive of defendant’s de

‐

fense” because it did not establish that he was unarmed or

uninvolved, only that McReynolds had not seen a gun. 12 Fi

‐ nally, the court concluded that “the result of defendant’s trial

would have been the same even if Calmese and McReynolds

had testified that defendant was unarmed where the jury was

given” an accountability instruction that focused on whether

a defendant “solicits, aids, abets, agrees to aid, or attempts to

aid the other person in the planning or commission of the of

‐

fense.” 13 Accordingly, “[a]ny possible testimony from

McReynolds and Calmese that defendant was unarmed

would not have illuminated whether defendant was legally

accountable for the actions of his co

‐ defendants.” 14 The court

closed by noting that, on direct appeal, it had concluded “that

the evidence here was not closely balanced,” and that

Mr. Carter “is unable to show resulting prejudice where the

alleged deficient performance of counsel did not render the

proceeding unreliable or fundamentally unfair.” 15

D.

Mr. Carter next filed a pro se petition for a writ of habeas

corpus in federal district court, seeking relief on eight sepa

‐

rate grounds. Included among those claims were a free

‐ stand

‐ ing actual innocence claim, claims related to a denial of a fair

12 Id. at 169–70.

13 Id. at 170 (internal quotation marks omitted).

14 Id.

15 Id. at 171.14 No. 13

‐ 2243

trial, claims related to excessiveness of sentence, and the claim

regarding ineffectiveness of trial counsel for failure to call

McReynolds and Calmese. The district court determined that

all of the claims, save for ineffective assistance, were either

procedurally defaulted or not cognizable on federal habeas

review and rejected them. Turning to the only non

‐ defaulted,

cognizable claim, the court held that Mr. Carter had failed to

“overcome the presumption that counsel’s decision not to call

these witnesses was reasonable.” 16 The record made clear that

counsel was aware of McReynolds and may have decided not

to call him because of his significant criminal record. Counsel

may also have decided that the testimony of either witness

was duplicative of other testimony, or was “unavailing be

‐

cause Carter was charged under an accountability theory,

meaning that he could be found legally accountable for his

co

‐ defendant’s actions even if he did not fire at Gardner.” 17

The court then determined that, even if performance was de

‐

ficient, Mr. Carter could not demonstrate prejudice because a

self

‐ defense theory had been presented to the jury and re

‐ jected, and because at least six witnesses had testified that

Mr. Carter, Jones, or Stone fired at Gardner, which would

support the State’s accountability theory. The district court

denied relief and denied a certificate of appealability.

We issued a certificate of appealability, limited to the inef

‐

fective assistance of counsel claim. We also recruited counsel

and specifically directed briefing on trial counsel’s failure to

call McReynolds and Calmese.

16 R.26 at 21.

17 Id.No. 13

‐ 2243 15

II

DISCUSSION

Mr. Carter contends that he was denied his Sixth Amend

‐

ment right to counsel. Specifically, he argues that his trial

counsel rendered ineffective assistance by failing to investi

‐

gate and to call McReynolds and Calmese. He also contends

that the Illinois Appellate Court applied an incorrect legal

framework to this claim by requiring him to demonstrate that

counsel’s alleged errors rendered his trial “unreliable or fun

‐ damentally unfair.” The State counters that the state courts

reasonably and appropriately applied the Strickland standard.

In any event, the State adds, Mr. Carter’s claims fail on de

novo review. It argues that Mr. Carter waived the portion of

his claim relating to a failure to investigate McReynolds and

Calmese, rather than a failure to call. Finally, it contends that

there is no reasonable probability that the outcome of

Mr. Carter’s trial would have been different with their testi

‐

mony. We address these issues in turn.

A.

Our standards of review in this context are complex but

familiar. We review the district court’s decision denying ha

‐

beas relief de novo. Smith v. Gaetz

, 565 F.3d 346, 351 (7th Cir.

2009). Under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), if a claim “was adjudicated on the

merits in State court proceedings,” federal review of the con

‐

viction is highly circumscribed. 28 U.S.C. § 2254(d). Focusing

on the decision of the last state court to address a given claim

on the merits, Ylst v. Nunnemaker

, 501 U.S. 797, 803 (1991), we

ask only whether the state adjudication “resulted in a decision16 No. 13

‐ 2243

that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Su

‐

preme Court of the United States” or “resulted in a decision

that was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceed

‐ ing,” 28 U.S.C. § 2254(d)(1)–(2).

“Under the ‘contrary to’ clause, a federal habeas court may

grant the writ if the state court 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 Su

‐ preme] Court has on a set of materially indistinguishable

facts.” Williams v. Taylor

, 529 U.S. 362, 412–13 (2000); see also

Bell v. Cone

, 535 U.S. 685, 694 (2002) (“A federal habeas court

may issue the writ under the ‘contrary to’ clause if the state

court applies a rule different from the governing law set forth

in [Supreme Court] cases... .”).

When, by contrast, the state court has articulated properly

the governing legal standard, a petitioner still may succeed by

showing that the State’s application of that standard was “un

‐

reasonable.” Williams

, 529 U.S. at 411. Under this standard,

We may not issue a writ “simply because [we]

conclude[]...that the relevant state

‐ court deci

‐

sion applied clearly established federal law er

‐ roneously or incorrectly. Rather, that applica

‐

tion must also be unreasonable.” Williams v.

Taylor

, 529 U.S. 362, 411 (2000); Rastafari v. An

‐

derson

, 278 F.3d 673, 688 (7th Cir. 2002). This de

‐ manding standard allows us to issue a writ only

in cases “where there is no possibility fair

‐

minded jurists could disagree that the state

court’s decision conflicts with [Supreme Court]No. 13

‐ 2243 17

precedents. It goes no farther.” Harrington [ v.

Richter

, 562 U.S. 86, 102 (2011)].

Carter v. Butts

, 760 F.3d 631, 635 (7th Cir. 2014) (alterations in

original) (parallel citations omitted).

With these rules in mind, we now turn to Mr. Carter’s ar

‐

guments on the merits.

B.

Mr. Carter now raises a single claim of ineffective assis

‐

tance based on his attorney’s failure to investigate and call

McReynolds and Calmese to testify at his trial. In his view,

both possible witnesses offered testimony in his favor that

was unique in substance, quality, or source, i.e., because it

came from a witness without a previous tie to Mr. Carter or

his associates. In the case of McReynolds, the proffered testi

‐

mony both came from a totally disinterested witness and un

‐

dermined the State’s case. And unlike the other witnesses

who gave testimony favorable to Mr. Carter, McReynolds was

not vulnerable to impeachment with prior inconsistent state

‐

ments to law enforcement. In the case of Calmese, he was con

‐

nected to Gardner

, and would have been the only witness so

situated who could have corroborated unequivocally

Mr. Carter’s claims that he was not a shooter. 18

18 Rena’s testimony was equivocal on the shooter issue. She identified

Mr. Carter as one of the shooters, but said that she often “mixed up”

Mr. Carter and Stone. R.14

‐ 6 at 178. Antonio identified Jones as a shooter,

but claimed to have seen Mr. Carter with a weapon as well, and stated that

additional shots were fired.18 No. 13

‐ 2243

The framework of our analysis of Mr. Carter’s Sixth

Amendment claim is Strickland v. Washington

, 466 U.S. 668

(1984). Under Strickland ’s familiar two

‐ prong test, we begin

with the issue of deficiency, i.e., whether “counsel’s represen

‐

tation fell below an objective standard of reasonableness,” id.

at 688, and then consider the issue of prejudice, i.e., whether

“there is a reasonable probability that, but for counsel’s un

‐ professional errors, the result of the proceeding would have

been different,” id. at 694.

1.

As we already have noted, the state court did not address

the deficiency prong of the Strickland analysis. Accordingly,

“we must ‘dispose of the matter as law and justice require,’ 28

U.S.C. § 2243, which is essentially de novo review.” Eichwedel

v. Chandler

, 696 F.3d 660, 671 (7th Cir. 2012). 19

We begin with a preliminary issue concerning Mr. Carter’s

precise contentions on deficient performance. In the current

briefing, Mr. Carter repeatedly frames his claim as a claim

that his trial counsel’s deficiency was a failure to investigate

and call the proffered witnesses. In his petition in the district

court, however, Mr. Carter principally argued that the failure

to call the witnesses was counsel’s deficient performance. The

19 See also Thomas v. Clements

, 789 F.3d 760, 766–67 (7th Cir. 2015) (evalu

‐ ating separately the standards of review applicable to the different prongs

of the Strickland analysis given the last state court’s failure to address de

‐ ficiency); Toliver v. McCaughtry

, 539 F.3d 766, 775 (7th Cir. 2008) (applying

de novo review to deficiency prong only where applicable state court en

‐ gaged in no analysis of it).No. 13

‐ 2243 19

State seizes on the discrepancy and contends that Mr. Carter

has waived any claims relating to counsel’s failure to investi

‐

gate these witnesses. 20

We are not persuaded that Mr. Carter’s marginally differ

‐

ent characterizations of his claim are consequential. In the first

place, Mr. Carter’s pro se petition in the district court must be

construed liberally. Bennett v. Gaetz

, 592 F.3d 786, 790 (7th Cir.

2010); cf. Ward v. Jenkins

, 613 F.3d 692, 696–97 (7th Cir. 2010)

(employing a liberal construction to a pro se state petition to

determine if claims were fairly presented to state courts).

More importantly, however, a review of our substantive

standards for evaluating Mr. Carter’s failure

‐ to

‐ call claims

demonstrates that we have regarded such claims as closely

tied to what the record tells us about the nature of counsel’s

investigation. Specifically, in applying Strickland ’s first prong

generally, we have stated that

we presume that counsel’s actions fall within

the wide range of reasonable professional assis

‐

tance, and defer to strategic decision

‐ making by a

trial attorney. Despite this weighty deference,

we nonetheless must carefully consider

whether the attorney brought to bear the skill

and knowledge that allows for a proper adver

‐

sarial testing process, considering all the cir

‐

cumstances.

20 We note that the State does not argue that Mr. Carter defaulted a failure

‐

to

‐ investigate claim in the state courts, only that he waived it by failing to

present it in the district court. See Appellee’s Br. 44–45.20 No. 13

‐ 2243

Adams v. Bertrand

, 453 F.3d 428, 434–35 (7th Cir. 2006) (empha

‐

sis added) (citations omitted) (internal quotation marks omit

‐ ted). In elucidating this standard in the context of a claim of

failure to present certain potentially favorable testimony, we

have stated:

“[A] lawyer’s decision to call or not to call a wit

‐

ness is a strategic decision generally not subject

to review. The Constitution does not oblige

counsel to present each and every witness that

is suggested to him.” United States v. Williams

,

106 F.3d 1362, 1367 (7th Cir. 1997) (internal cita

‐

tion and quotation marks omitted). If counsel

has investigated witnesses and consciously de

‐

cided not to call them, the decision is probably

strategic. An outright failure to investigate wit

‐

nesses, however, is more likely to be a sign of

deficient performance.

...

... .

... . Few decisions not to present testimony

can be considered “strategic” before some in

‐ vestigation has taken place. As we explained in

United States ex rel. Hampton v. Leibach

, 347 F.3d

219 (7th Cir. 2003), “strategic choices made after

less than complete investigation are reasonable

precisely to the extent that reasonable profes

‐

sional judgments support the limitations on in

‐ vestigation.”

United States v. Best

, 426 F.3d 937, 945–46 (7th Cir. 2005) (em

‐ phasis in original); see also Mosley v. Atchison

, 689 F.3d 838, 848No. 13

‐ 2243 21

(7th Cir. 2012) (“To avoid the inevitable temptation to evalu

‐

ate a lawyer’s performance through the distorting lens of

hindsight, Strickland establishes a deferential presumption

that strategic judgments made by defense counsel are reason

‐

able. But the presumption applies only if the lawyer actually

exercised judgment.” (citation omitted)). That is, although we

defer to strategic decisions, we first assure ourselves that a

strategic decision was made, because “[t]he consequences of

inattention rather than reasoned strategic decisions are not

entitled to the presumption of reasonableness.” Mosley

, 689

F.3d at 848. In sum, although “[i]t would be a rare case where

counsel’s conscious decision not to call a witness would

amount to constitutionally ineffective assistance,” United

States v. Weaver

, 882 F.2d 1128, 1139 (7th Cir. 1989) (emphasis

added), “strategic choices made after less than complete in

‐ vestigation are reasonable only to the extent that reasonable

professional judgments support the limitations on investiga

‐

tion.” Wiggins v. Smith

, 539 U.S. 510, 533 (2003) (internal quo

‐

tation marks omitted); see also Strickland

, 466 U.S. at 691 (“In

other words, counsel has a duty to make reasonable investi

‐ gations or to make a reasonable decision that makes particular

investigations unnecessary.”).

The record does not reveal anything about the scope of

counsel’s investigation of Calmese and McReynolds. Counsel

was aware of both witnesses and initially placed McReynolds

on the witness list and took steps to secure his testimony. 21 For

reasons that are not disclosed by the record, counsel did not

21 Specifically, the record shows that counsel sought a court order for his

testimony when McReynolds was incarcerated in the months before the

trial.22 No. 13

‐ 2243

actually contact or call either potential witness. On the record

before us, therefore, we cannot determine that counsel con

‐

ducted the investigation necessary to conclude that pursuing

McReynolds’s or Calmese’s testimony would be fruitless. 22

Potential reasons not to call either witness are, of course,

conceivable. McReynolds was incarcerated during the

lead

‐ up to Mr. Carter’s trial, and counsel may have concluded

that his criminal history (the details of which are not part of

the present record) were sufficiently problematic that his tes

‐ timony would have been of little value. Counsel may have be

‐

lieved that the testimony of either witness would have been

cumulative and unhelpful, a point we shall examine in our

prejudice analysis. On the other hand, we have found defi

‐ ciency in situations where counsel has failed to call witnesses

even when testimony is cumulative, if the missing witness is

disinterested in a case in which other witnesses have a rela

‐ tionship to the defendant. See Montgomery v. Petersen

, 846 F.2d

22 The Government cites United States v. Ashimi

, 932 F.2d 643 (7th Cir.

1991), for the proposition that “a blank record [concerning an attorney’s

investigation] cuts in favor of, not against, effective assistance.” Id. at 649.

Ashimi

, however, was a direct appeal, and therefore the defendant had

elected to raise an ineffective assistance claim on the trial record itself, a

decision that is discouraged in the main of cases because of the limitations

on available facts. See, e.g.

, United States v. Taglia

, 922 F.2d 413, 417–19 (7th

Cir. 1991) (discussing the options for raising an ineffective assistance claim

and reminding defendant that “if he wants to support the claim with facts

that require evidence to establish he will be well advised to wait till the

postconviction stage and will be safe in doing so”). Furthermore, the rec

‐

ord as it stands does not resolve the matter for Mr. Carter, but neither is it

“blank.” We know, for instance, that counsel was aware of McReynolds

and his probable testimony, that he initially placed McReynolds on the

witness list, but that he did not contact McReynolds and did not call him.No. 13

‐ 2243 23

407, 414 (7th Cir. 1988) (“The jury was presented with a

straightforward credibility choice. Every one of these wit

‐

nesses had a reason to be biased. Given the standoff between

two factions in this family, one group supporting

Wayne Montgomery and the other group supporting the pe

‐

titioner, independent corroboration by a neutral, disinter

‐

ested witness would perforce be extremely significant.”).

Under these circumstances and considering the potential

value of the testimony of Calmese and McReynolds—the mer

‐

its of which we shortly shall examine—it may well have been

that “counsel could not have made a reasonable strategic de

‐

cision not to call [either witness] without interviewing [them]

in order to evaluate [their] proposed testimony, [their] credi

‐ bility or [their] demeanor.” Toliver

, 539 F.3d at 775. Based on

the allegations contained in the affidavit of McReynolds,

which we must take as true at this stage of the proceeding,

such an investigation did not occur. Remand therefore might

well be appropriate to address the first Strickland prong, un

‐

less the claim was properly denied on the prejudice prong. Cf.

id. at 782 (“The state courts never resolved, under the first

prong of the Strickland analysis, whether Mr. Toliver’s counsel

was ineffective in not interviewing Harvey and in not calling

Angeal. Therefore, issues of fact concerning counsel’s compe

‐

tence were never resolved.”). 23 We therefore proceed to the

prejudice prong of Strickland

.

23 One additional point deserves mention: whether a statutory bar stands

in the way of Mr. Carter’s request for an evidentiary hearing. Specifically,

under 28 U.S.C. § 2254(e)(2), “[i]f the applicant has failed to develop the

factual basis of a claim in State court proceedings, the [federal] court shall

not hold an evidentiary hearing,” except in limited circumstances. At oral24 No. 13

‐ 2243

2.

a.

The parties dispute the appropriate standard of review on

the issue of prejudice. The Illinois Appellate Court discussed

and resolved this issue on the merits against Mr. Carter. Or

‐ dinarily, this state court determination would require us to

apply AEDPA deference to the state court’s decision. See 28

U.S.C. § 2254(d)(2); supra section II.A. Mr. Carter, neverthe

‐

less, contends that our review of the prejudice prong is also

argument, we questioned the parties about whether such a request had

been presented to the state court, and, if not, whether the lack of such a

request barred federal courts from the consideration of extra

‐ record mate

‐

rial and prevented us from remanding the case for an evidentiary hearing.

We requested supplemental briefing on the topic.

Both parties responded that, under the Illinois Post

‐ Conviction Hear

‐ ing Act, 725 ILCS 5/122

‐ 1 et seq.

, Mr. Carter’s filing of the petition itself

effectively requested a hearing, and one would have been granted as a

matter of course had the petition advanced beyond the early screening

stages. See App. R.54; App. R.53 at 1 (“[A]n evidentiary hearing is required

whenever petitioner satisfies the second

‐ stage standard.” (citing People v.

Coleman

, 701 N.E.2d 1063, 1072 (Ill. 1998)). We are somewhat skeptical of

the breadth of this legal conclusion—the state court surely would not

grant an evidentiary hearing if the parties agreed on the factual basis of

the claim. Nevertheless, the Supreme Court has interpreted the bar in

§ 2254(e)(2) as requiring a showing of “some lack of diligence” on the part

of the petitioner. Williams v. Taylor

, 529 U.S. 420, 430 (2000). Here, the State

essentially concedes that Mr. Carter acted in the manner envisioned by the

state postconviction procedure with respect to this issue. See id. at 437

(“Diligence will require in the usual case that the prisoner, at a minimum,

seek an evidentiary hearing in state court in the manner prescribed by state

law .” (emphasis added)). We therefore do not believe that § 2254(e)(2)

stands as a bar to our consideration of his request for a hearing in federal

court.No. 13

‐ 2243 25

de novo, because the state court analyzed the case under Peo

‐ ple v. Coulter

, 815 N.E.2d 899 (Ill. App. Ct. 2004), a case which

stated that outcome

‐ determinative prejudice is insufficient

unless counsel’s performance resulted in a trial that was un

‐

reliable or fundamentally unfair.

At first blush, Mr. Carter’s point is well taken, and one that

we have noted before. In Strickland

, the Supreme Court iden

‐

tified the now familiar prejudice standard as whether “there

is a reasonable probability that, but for counsel’s unprofes

‐

sional errors, the result of the proceeding would have been

different.” 466 U.S. at 694. Mr. Carter is correct that the State

court recited a standard that placed an additional burden on

him, specifically, one that required him to demonstrate not

only a reasonable probability of a different outcome, but that

the result of counsel’s errors rendered his trial unreliable or

fundamentally unfair. The state court’s actual decision rested,

however, on his failure to satisfy even the lower outcome bur

‐

den under Strickland

. Put simply, although the state court’s

decision is bookended by an articulation of the fundamen

‐ tally

‐ unfair

‐ or

‐ unreliable standard, its analysis is focused on

whether the proffered testimony could have affected the out

‐

come, which is the correct inquiry under Strickland

. See R.14

‐ 2

at 169–70 (noting that the testimony “would not have been

exculpatory” and was “cumulative,” that McReynolds’ testi

‐

mony did not accomplish what Mr. Carter alleged that it did,

and that, because of the State’s accountability theory, “the re

‐

sult of defendant’s trial would have been the same”).

We faced a similar situation in Floyd v. Hanks

, 364 F.3d 847

(7th Cir. 2004). There, the Court of Appeals of Indiana exam

‐

ined prejudice under Strickland but recited that “when errors26 No. 13

‐ 2243

do not make the result of the trial unreliable, they do not cause

prejudice.” Id. at 852. Nevertheless, we noted that

a fuller view of the appellate court’s discussion

reveals that while the term “reliability” was em

‐ ployed, the actual analysis of Floyd’s counsel’s

conduct properly considered whether the coun

‐

sel’s actions affected the outcome of the trial. As

noted above, the Indiana Appellate Court con

‐

sidered the potential effect of the [favorable ev

‐ idence] against the weight of the other evidence

heard by the jury. In reaching its decision that

there was no prejudice, the court found that the

inculpating evidence was overwhelming and

had Floyd’s counsel taken the steps that Floyd

now demands, the result would have been the

same; this is the very analysis that is required by

Strickland and Williams

.

Id. at 852–53 (footnote omitted); cf. Goodman v. Bertrand

, 467

F.3d 1022, 1028 (7th Cir. 2006) (finding state court applied an

incorrect prejudice analysis where “it repeatedly reasoned

that Goodman failed to show that his second trial was ‘funda

‐ mentally unfair’ or ‘unreliable’”).

The analysis in Floyd applies here. Even though the Illinois

court noted that counsel’s performance “did not render the

proceeding unreliable or fundamentally unfair,” 24 its analysis

focused on the probable impact of the proffered testimony on

the outcome. The court evaluated the evidence piece by piece

and concluded explicitly that, because the jury was instructed

24 R.14

‐ 2 at 171.No. 13

‐ 2243 27

on an accountability theory, “the result of defendant’s trial

would have been the same even if Calmese and McReynolds

had testified that defendant was unarmed.” 25 “Any possible

testimony from McReynolds and Calmese that defendant was

unarmed would not have illuminated whether defendant was

legally accountable for the actions of his co

‐ defendants.” 26

This is precisely the analysis demanded by Strickland

. Accord

‐ ingly, the Illinois court’s analysis is not “contrary to” settled

law, and we therefore apply AEDPA deference to the state

court’s resolution of the issue.

We next turn to the question whether the State unreason

‐ ably applied Strickland on the facts before it. See Cullen v. Pin

‐

holster

, 563 U.S. 170, 181 (2011) (“[R]eview under § 2254(d)(1)

is limited to the record that was before the state court that ad

‐ judicated the claim on the merits.”). Specifically, we must de

‐

termine whether the state court’s assessment of the probable

value of the proffered testimony was unreasonable. 27

25 Id. at 170.

26 Id.

27 In evaluating the prejudice prong, both parties invite our attention to

the results of an entirely separate state court conviction and federal habeas

proceeding: those involving Cortez Jones. Jones, like Mr. Carter, was con

‐

victed of the murder of Gardner, although in a separate trial. Mr. Carter

emphasizes that Jones was granted habeas relief on an ineffective assis

‐

tance of counsel claim by the district court, which also focused on the fail

‐

ure to present exculpatory testimony. See United States ex rel. Jones v. Jack

‐

son

, No. 08 C 4429, 2014 WL 4783810 (N.D. Ill. Sept. 25, 2014). The State

emphasizes that the testimony actually presented at Jones’s hearing un

‐

dermines Mr. Carter’s claims. In evaluating these arguments, we note first

that the grant of relief by a district court to Jones, which has now been28 No. 13

‐ 2243

We begin with Calmese. If he had testified consistently

with his statement to police, Calmese would have stated that

Stone fired first, and then Jones fired. 28 He made no statement

appealed and is pending before another panel of this court, is not factually

similar. Specifically, it has nothing to do with the testimony of McReyn

‐

olds and Calmese on which Mr. Carter bases his claim, but was instead

focused on Jones’s trial attorney’s failure to call Stone

, who claimed to be

the sole shooter and who disavowed cooperation with Jones and

Mr. Carter. Second, and most importantly, as we already have noted, our

review is limited to the record as it existed in state court. See Cullen v. Pin

‐

holster

, 563 U.S. 170, 181 (2011). We therefore do not consider the material

from Jones’s hearing or the court’s disposition of his case in our evaluation

of Mr. Carter’s claim.

28 The relevant description of Calmese’s probable testimony contained in

the police report states, in full:

Paul CALMESE

.............................. stated that he was

on the street standing next to the victim. CALMESE stated

that he had been called by the victim because someone

had stolen his car radio. CALMESE stated that as they

were talking the Cav[alier] pulled up, and two guys got

out. CALMESE stated that the driver went and started

talking to Friday. CALMESE stated that they began to ar

‐

gue, and Friday is asking for his radio back. CALMESE

stated that he observed that the passenger of the Cav[al

‐

ier] had a gun in his pocket. CALMESE stated that the

driver then accused Friday of burglarizing his relatives[’]

apartment. CALMESE stated that he stepped behind the

passenger. CALMESE stated that someone came out of

the building, (6102 S. May), and was standing by the alley.

CALMESE stated that the subject came from the alley,

stepped between him and the driver of the vehicle, and

fired three times. CALMESE stated that the passenger

then fired twice at the victim. CALMESE stated that afterNo. 13

‐ 2243 29

about Mr. Carter’s possession or use of a weapon. It is true

that, unlike the testimony of Rena and Antonio Phillips,

Calmese’s testimony would not have inculpated directly

Mr. Carter. And unlike Pearson (who indicated that Stone

shot and either Jones or Mr. Carter followed) and Gaston (who

identified Jones as a shooter and was unclear if anyone else

shot), Calmese’s two

‐ shooter scenario involves only Stone

and Jones. It is perhaps most consistent with Cheeks’s testi

‐

mony that Stone shot and then additional shots came from the

direction of Mr. Carter and Jones.

According to his affidavit, McReynolds would have testi

‐

fied that he heard the argument, “observed Friday Gardner

the shooting the two subject[s] from the vehicle fled east

on foot, and the other subject fled west.

R.14

‐ 2 at 24.30 No. 13

‐ 2243

pull an object out from behind his back and then...heard sev

‐

eral shots ring out.” 29 He continues that “[t]he individual fir

‐

ing the shots” was Stone. 30 Further, McReynolds states: “I did

29 Id. at 22. McReynolds’s affidavit states, in full:

I, Jeremiah McReynolds[,] being first deposed

upon his sworn oath under penalty of perjury, do freely

and willfully attest to the following facts as being true and

accurate to the best of his personal knowledge and belief,

to wit:

1. On the 12th of September, 1999 at ap

‐ proximately 11:00 p.m.; I personally observed from my

first floor window at 61st and May, three individuals

across the street hollering and gesturing at one another

in a agitating manner;

2. Such individuals were Junior (Michael

Carter), a guy named Cortez Jones, and Friday Gardner.

They were all arguing and from time to time they were

all seen in the neighborhood;

3. During what appeared to be a very

heated argument, I observed Friday Gardner pull an ob

‐ ject out from behind his back and then I heard several

shots ring out from the alleyway;

4. The individual firing the shots was

known to me as “Man” and he lived in the neighbor

‐

hood;

5. I did not personally observe anyone else

doing any shooting, and when the shooting was occur

‐ ring the reaction of Junior (Michael Carter) and Cortez

Jones was to scatter in an effort to avoid being shot;

6. Friday Gardner was shot and he fell to

the pavement as everyone around him fled from the

scene;No. 13

‐ 2243 31

not personally observe anyone else doing any shooting, and

when the shooting was occurring the reaction of Junior (Mi

‐

chael Carter) and Cortez Jones was to scatter in an effort to

avoid being shot.” 31 If he had been called to testify, therefore,

McReynolds would have echoed the testimony of Felicia and

7. I later informed LaTonya Cheeks that I

had observed everything that had happened and that I

would testify as a witness if called to go to court;

8. Prior to the trial in regards to the shoot

‐ ing death of Friday Gardner I got into legal trouble and

went to prison but I was released before the trial took

place and notified Michael Carter’s family that I was still

available to give testimony about what I observed on the

12th of September, 1999;

9. Sometimes during June of 2002; I was

informed that Junior’s (Michael Carter) Mother had con

‐

tacted my family members and left word that I was on

Junior’s (Michael Carter’s witness list), and that I would

be called into court;

10. Although I was available and in Chi

‐

cago, Illinois at all times in which the trial was going on,

no lawyer or anyone else from the court contacted me or

called me as a witness about the facts that happened on

September 12, 1999;

11. If called into court to testify to the facts

stated herein, I will appear and attest to such facts as be

‐ ing true and correct to the best of my personal

knowledge and belief.

Id. at 22–23.

30 Id. at 22.

31 Id.32 No. 13

‐ 2243

Michella Anderson, Cheeks, and Stone with respect to Gard

‐

ner’s drawing a weapon, and with Felicia and Michella An

‐

derson, and Stone, in identifying Stone as the only shooter.

In assessing the testimony of Calmese and McReynolds,

the state court concluded that it would have had little proba

‐

ble impact on the outcome of Mr. Carter’s trial. Specifically, it

said that the testimony

would not have been exculpatory and would

have merely been cumulative of the testimony

presented by Felicia Anderson, LaTonya

Cheeks, Michell[a] Anderson, and co

‐ defendant

Stone. Defendant’s theory of defense was pre

‐

sented at trial and corroborated where these

witnesses testified that the victim had a gun and

defendant did not. The jury rejected this de

‐

fense.

Moreover, McReynolds’ affidavit is insuffi

‐

cient and unsupportive of defendant’s defense.

Specifically, defendant incorrectly relies on the

affidavit to establish that he was unarmed and

did not participate in shooting the victim.

McReynold[s’] affidavit merely states that he

only saw co

‐ defendant Stone shoot a gun, and

that defendant “scattered” to avoid being shot.

He does not specify that defendant was un

‐

armed or somehow uninvolved in the shooting.

The same holds true for the police report re

‐ garding Calmese, which merely documents that

the police interviewed Calmese, who saw co

‐ de

‐

fendants Stone and Jones shoot the victim. ItNo. 13

‐ 2243 33

does not state that defendant was unarmed or

somehow uninvolved in the shooting.

Furthermore, the result of defendant’s trial

would have been the same even if Calmese and

McReynolds had testified that defendant was

unarmed where the jury was given the follow

‐ ing accountability instruction:

“A person is legally responsible

for the conduct of another person

when either before or during the

commission of an offense with the

intent to promote or facilitate the

commission of an offense he

knowingly solicits, aids, abets,

agrees to aid, or attempts to aid

the other person in the planning

or commission of the offense. [] A

person who is legally responsible

for the conduct of another may be

convicted for the offense commit

‐

ted by the other person even

though the other person, who it is

claimed committed the offense,

has not been convicted.”

The jury heard the evidence, received the in

‐

structions, and found defendant guilty. Any

possible testimony from McReynolds and

Calmese that defendant was unarmed would34 No. 13

‐ 2243

not have illuminated whether defendant was le

‐ gally accountable for the actions of his co

‐ de

‐

fendants. [ 32 ]

It concluded its analysis with a final reference to its determi

‐

nation on direct appeal “that the evidence here was not

closely balanced.” 33

The court’s analysis, while flawed, is ultimately not so far

off the mark as to be unreasonable. See 28 U.S.C. § 2254(d)(1);

Hardaway v. Young

, 302 F.3d 757, 762 (7th Cir. 2002) (“A state

court decision must be more than incorrect from the point of

view of the federal court; AEDPA requires that it be ‘unrea

‐

sonable,’ which means something like lying well outside the

boundaries of permissible differences of opinion.”). We are

uncomfortable with the state court’s conclusion that the testi

‐

mony is “cumulative” and that the theory of defense was ad

‐ equately presented at trial and rejected by the jury. In reach

‐ ing this conclusion and noting specifically whose testimony

McReynolds and Calmese would echo, the state court makes

no mention of the fact that all of the witnesses it is referencing

are witnesses with a preexisting relationship to Mr. Carter

and therefore have a potential bias that would have been clear

to the jury. By contrast, Calmese was a witness with a rela

‐ tionship to Gardner

, and McReynolds appears to be totally dis

‐

interested. This is a significant and noteworthy difference that

32 Id. at 169–70 (third alteration in original) (citation omitted).

33 Id. at 171. It also closed with a citation to the erroneous “unreliable or

fundamentally unfair” standard. Id. For the reasons set forth above, we do

not find this error consequential given the appropriate course of the anal

‐ ysis.No. 13

‐ 2243 35

deserved to factor in to the state court’s analysis. Cf. Montgom

‐

ery

, 846 F.2d at 414 (“Every one of these witnesses had a rea

‐

son to be biased. Given the standoff between two fac

‐ tions...independent corroboration by a neutral, disinterested

witness would perforce be extremely significant.”).

Nevertheless, the remainder of the state court’s analysis is

sufficient to assure us that, despite this significant oversight,

the conclusion that the new testimony did not create a sub

‐

stantial probability of acquittal is not unreasonable. In reach

‐ ing this conclusion, the most significant factors are the com

‐ peting theories of the case presented at trial: Stone argued

self

‐ defense, Mr. Carter argued mere presence, and the State

argued accountability. Calmese’s testimony is not valuable

under these circumstances, because it identifies not just Stone

but also Jones as shooters, undermining the sole

‐ shooter sce

‐

nario Stone had presented to the jury. Moreover, anything

that confirms Jones’s involvement is factually even more

problematic for Mr. Carter under the accountability theory,

because Mr. Carter’s ties to Jones that day and at the moment

of the shooting make a claim that Jones acted independently

significantly less credible: Mr. Carter had gotten Jones in

‐

volved in the dispute over the robbery; they spent the after

‐

noon together; they drove to the building to begin the con

‐

frontation together; they fled together; and, outside of back

‐ ing up Mr. Carter, Jones did not have a proverbial “dog in the

fight” stemming from the original burglary or the people in

‐

volved. Accordingly, to truly undercut the State’s case,

Mr. Carter’s defense needed to distance him from the shoot

‐

ers, whether that be Stone alone or Jones and Stone. Calmese’s

testimony does not accomplish that result.36 No. 13

‐ 2243

McReynolds’s proffered testimony, for the reasons noted

by the state court, also ultimately fails to furnish the linchpin

of Mr. Carter’s claim. Had the proffer included an unequivocal

statement from McReynolds that he had watched the entire

scene, that Stone was the only shooter, and that Mr. Carter

and Jones were unarmed, we might well conclude, given

McReynolds’s disinterested status, that the state court’s con

‐

clusion on prejudice was unreasonable. But as the State notes,

McReynolds says nothing about Mr. Carter’s activities prior to

“scatter[ing].” 34 He does not say that he watched Mr. Carter

and saw no gun and no shooting; he says only that he “ heard

several shots ring out from the alleyway,” Stone’s location,

and “did not personally observe” any other shooting. 35

McReynolds does not specifically say that he saw Stone shoot.

The phraseology is notably weak, and all of the potentially

relevant factual assertions about the shooting comprise only

three sentences, woefully lacking in detail. His further testi

‐

mony that Mr. Carter and Jones scattered after Stone’s shots

to avoid being shot themselves is fairly characterized as add

‐ ing somewhat of a gloss on the testimony of essentially every

other witness that day, all of whom agree that all three of the

defendants fled the scene. The most striking factual claim

McReynolds makes in the affidavit is that he saw Gardner

draw “an object out from behind his back,” but this fact, while

34 See R.14

‐ 2 at 22.

35 Id. (emphasis added). If our review were de novo, we also would take

notice of the fact that two witnesses who conceivably would have a pro

‐

Gardner bias (Pearson, his girlfriend, and Gardner’s friend Gaston, with

whom he was speaking when Mr. Carter and Jones approached) gave

equivalent testimony that they did not see Mr. Carter have a gun.No. 13

‐ 2243 37

potentially significant to Stone ’s self

‐ defense claims, is irrele

‐

vant to Mr. Carter’s mere presence defense. 36

The state court indicated that this case was not a close one.

That characterization may be a matter of some legitimate de

‐

bate. The issue before us today is, however, a narrow one con

‐ cerning only two pieces of additional evidence. Considering

the limited potential value of that evidence, we conclude that

the state court’s assessment of the prejudice prong of Strick

‐

land cannot be characterized as unreasonable. 37

36 Id. We note that, although the accountability instruction was given to

the jury, the State’s closing argument claims that all three defendants were

armed and ready to shoot. The jury convicted Mr. Carter following this

argument and the instruction. The evidence before us now likewise does

not undercut, in any significant way, the evidence presented that

Mr. Carter himself was armed, insofar as neither witness definitively

states that Mr. Carter was unarmed.

37 We note that, on appeal, Mr. Carter concludes his brief by contending

that the cumulative errors of his trial counsel rise to the level of constitu

‐ tionally deficient performance. In addition to the principal claim regard

‐ ing Calmese and McReynolds, he points to trial counsel’s failure to ade

‐ quately present a mere presence defense, instead deferring to Stone’s

counsel and a theory of self

‐ defense, and a failure to argue for a limiting

instruction on other crimes evidence. The parties dispute whether these

arguments are procedurally problematic at this stage of the litigation,

given the nature of the arguments presented in state court and in the dis

‐

trict court. We need not resolve these procedural issues, however. The core

of Mr. Carter’s ineffective assistance argument is the witness testimony,

and we have found the state court’s assessment of the prejudicial effect of

not presenting that testimony to be reasonable. Viewing the evidence pre

‐

sented at trial in its totality, Strickland v. Washington

, 466 U.S. 668, 695

‐ 96

(1984), even if we could consider the additional claimed errors and agreed

that they amounted to deficient performance, they are not so substantial38 No. 13

‐ 2243

Conclusion

The district court’s resolution of the sole claim presented

in Mr. Carter’s federal habeas petition was correct. Although

trial counsel’s performance may have been deficient in failing

to investigate potential witnesses, the state court’s resolution

of the prejudice analysis was not unreasonable within the

meaning of 28 U.S.C. § 2254(d)(1). Accordingly, we affirm the

judgment of the district court.

AFFIRMED

as to alter our assessment and demonstrate a reasonable probability of a

different outcome to Mr. Carter’s trial.No. 13

‐ 2243 39

E ASTERBROOK

, Circuit Judge

, concurring. We resolve this

case as the parties have presented it. Whether they have pre

‐

sented it correctly is doubtful.

For example, at page 18 the court applies the circuit’s doc

‐

trine that, because the state judiciary bypassed the “perfor

‐

mance” component of Strickland v. Washington

, 466 U.S. 668

(1984), the federal judiciary’s assessment is unaffected by 28

U.S.C. §2254(d), even though the state judiciary rejected the

ineffective

‐ assistance claim on the merits by concluding that

the contested aspects of counsel’s performance did not preju

‐

dice Carter. I think that §2254(d) governs both elements of

Strickland once the state judiciary decides an ineffective

‐ assis

‐

tance claim. Section 2254(d) applies when a state court re

‐

solves a “claim” on the merits. Performance and prejudice are

distinct issues, to be sure, but there is only one “claim.” See

Thomas v. Clements

, 797 F.3d 445 (7th Cir. 2015) (opinion re

‐ specting the denial of rehearing en banc). But Illinois has not

asked us to revisit the cases cited at page 18 & n.19.

When analyzing the performance element of Strickland

,

the court asks only whether counsel may have erred by not

interviewing and calling two potential witnesses. That’s the

way Carter framed the issue. It is the wrong question to ask.

Strickland directs a court to examine the totality of counsel’s

performance, not to concentrate on a supposed error while

losing sight of what the lawyer did for his client. See Strickland

,

466 U.S. at 690–96; Williams v. Lemon

, 557 F.3d 534 (7th Cir.

2009) (applying this aspect of Strickland to another proceeding

in which a prisoner contended that counsel had not inter

‐

viewed and called witnesses). As happens too often, however,

lawyers for the state have gone along with the petitioner’sNo. 13

‐ 2243 40

(understandable) desire to focus attention on what trial coun

‐

sel arguably omitted, rather than the full course of represen

‐

tation. But this does not imply that it is right to ignore what

Carter’s lawyers did and focus only on what arguably did not

occur.

I said “arguably” in the last two sentences because we do

not know whether counsel interviewed McReynolds or Calm

‐

ese, or what considerations influenced the decision not to call

them. We have only Carter’s views. That’s because counsel

have never been called on to say what they did and explain

why they did (or didn’t) do any particular thing, and no judge

has decided whether Carter’s allegations are true. The state

might well have invoked 28 U.S.C. §2254(e)(2), which pro

‐

vides that a petitioner who bypassed an opportunity to build

a record in state court can’t complain in federal court about

the deficiencies of the record. As the court’s opinion explains

(pages 23–24 & n.23), Illinois has waived any opportunity to

rely on this statute. It may be, as the prosecutor has told us,

that in Illinois a petitioner need not invariably make a sepa

‐

rate request for a hearing. But Carter not only never requested

an evidentiary hearing but also did not complain on appeal in

the state system about the absence of one. He evidently wants

both state and federal judges to assume that his view of what

occurred is all that matters. That can’t be right. It is not sensi

‐

ble—indeed, usually it is not possible—to decide that defense

counsel furnished ineffective assistance without hearing from

the lawyer what happened and why.

For reasons the court’s opinion gives, however, none of

these issues affects the outcome. I therefore join the court’s

opinion, but I also hope for better performance from appellate

counsel in future ineffective

‐ assistance litigation.