In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 20-1168 

LARRY H. DUNN, JR., 

Petitioner-Appellee, 

v.

CATHY JESS, 

Respondent-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Eastern District of Wisconsin. 

No. 18-cv-700 — William C. Griesbach, Judge. 

____________________ 

ARGUED SEPTEMBER 23, 2020 — DECIDED NOVEMBER 24, 2020 

____________________ 

Before SYKES, Chief Judge, and HAMILTON and ST. EVE,

Circuit Judges. 

ST. EVE, Circuit Judge. Larry Dunn slapped Andrew 

Schuckman in a bar’s parking lot, causing him to fall to the 

ground. Witnesses reported seeing Schuckman upright and 

apparently unharmed afterward, but hours later, he was 

found dead on the bar’s back patio. The state charged Dunn 

and his friend Michael Crochet with felony murder, battery, 

and theft from a corpse for stealing Schuckman’s cell phone. 
2 No. 20-1168

A key issue in the case was whether Dunn’s slap caused 

Schuckman’s death. In preparation for trial, Dunn’s counsel 

consulted with a forensic pathologist. After viewing the medical examiner’s report, the pathologist believed that Schuckman died immediately from his head injuries—suggesting 

that Dunn’s slap could not have caused his death. In the 

months leading up to trial, defense counsel repeatedly—and 

erroneously—stated that he believed the medical examiner 

had concluded that Schuckman died immediately from a fatal 

blow to the back of his head and would testify to that at trial. 

Dunn’s counsel expressed this belief even though the medical 

examiner’s report did not contain these conclusions about the 

immediacy of death and he never confirmed them with her in 

advance of trial. Shortly before trial, the prosecutor informed 

Dunn’s counsel that Crochet, Dunn’s co-defendant, had disclosed that he had retained experts for his case. These experts 

were going to produce reports containing information that 

bolstered Dunn’s no-causation defense; the prosecution considered these reports to be exculpatory. Trial counsel did not 

ask for a continuance or attempt to view the reports’ contents, 

stating that the medical examiner would testify to the immediacy of death. At trial, defense counsel did not call his forensic pathologist as a witness. Furthermore, contrary to Dunn’s 

counsel’s expectations, the medical examiner testified that 

there was no reason to think that Schuckman would have died 

immediately from the fatal head injury, and it would have 

been possible for Schuckman to move after sustaining this injury. 

In state postconviction proceedings, Dunn asserted that 

his trial counsel had been ineffective for failing to investigate 

and present evidence that supported a no-causation defense 

to felony murder. The state appellate court concluded that 
No. 20-1168 3 

Dunn’s trial counsel did not perform deficiently. Dunn then 

filed a habeas petition in federal court, which the district court 

granted. It reasoned that Dunn’s trial counsel provided ineffective assistance by failing to investigate and offer evidence 

to support a no-causation defense. Federal courts “do not 

lightly grant petitions for a writ of habeas corpus brought by 

state prisoners,” and “if the ‘standard [for relief] is difficult to 

meet, that is because it was meant to be.’” Cook v. Foster, 948 

F.3d 896, 899 (7th Cir. 2020) (quoting Harrington v. Richter, 562 

U.S. 86, 102 (2011)). Here, we agree with the district court that 

Dunn has met this high bar—he is entitled to relief because he 

was prejudiced by his trial counsel’s deficient performance. 

We therefore affirm. 

I. Background 

A. Andrew Schuckman’s Death 

On May 9, 2011, Schuckman, Dunn, and Crochet were patrons of Peg & Lou’s Bar in Racine, Wisconsin. Dunn and Crochet were in town on business and they went to the bar with 

Crochet’s uncle, Fred Tennessen. Schuckman was intoxicated 

and had several unwelcome interactions in the bar with Crochet and other bar patrons. The bartender eventually asked 

Schuckman to leave and escorted him outside. Dunn and Crochet later encountered Schuckman in the bar’s parking lot. 

Dunn slapped Schuckman with his open left hand, which 

caused Schuckman to fall to the ground and hit his head. 

Dunn then went inside and told the bartender what had happened and asked him to go check on Schuckman. When the 

bartender did not immediately do so, Dunn returned outside 

to check on Schuckman. After about ten to fifteen minutes, the 

bartender arrived and told Dunn to go back inside. The 
4 No. 20-1168

bartender escorted Schuckman to the bar’s back patio and left 

him on the grass next to a chair. 

Hours later, in the early morning of May 10, a bar patron 

discovered Schuckman’s body about five to six feet from 

where the bartender had left him. He was lying face up, and 

there was blood underneath his head and coming from his 

mouth and nose. His shirt was pulled up, and his pants were 

pulled down slightly. Several personal items, including his 

credit cards and wallet, lay near his body. 

B. Dunn’s Trial 

At trial, Dunn’s defense counsel advanced two key reasons 

why the jury should find Dunn not guilty—self-defense and 

a lack of causation. Dunn testified that he slapped Schuckman 

in self-defense because Schuckman approached him and Crochet with his fist raised. Trial counsel also argued that the 

state had failed to show that Dunn’s slap caused Schuckman’s 

death. 

The state put on several witnesses, including bar patrons, 

the bartender, an investigator, a DNA analyst, and the medical examiner. The bartender testified that when he went outside to check on Schuckman, he was sitting on the ground and 

had no physical marks on him. Schuckman seemed a little 

dazed, but mostly seemed intoxicated. He helped Schuckman 

stand up and then used his arms to help Schuckman walk to 

the back patio. A bar patron corroborated this testimony, testifying that he saw the bartender talking to Schuckman in the 

parking lot and that Schuckman was breathing and seemed 

“fine as far as [the bar patron] could see.” The patron also saw 

the bartender help Schuckman stand up. 
No. 20-1168 5 

Another bar patron testified that he saw Dunn, Crochet, 

and Tennessen leave the bar about ten to fifteen minutes before him. When he exited the bar, Dunn was inside a pickup 

truck and another person—either Crochet or Tennessen—

walked to the truck from the direction of the bar’s back patio. 

The medical examiner, Dr. Linda Biedryzycki, testified 

that Schuckman’s cause of death was blunt head injury. He 

had at least five different points of impact on his head, the 

most severe of which was a skull fracture and laceration to the 

back of his head. According to Dr. Biedryzycki, all Schuckman’s head injuries contributed to his death. She testified that 

the injury to the back of the head was consistent with someone striking the pavement or the ground. While she had no 

way of knowing definitively if the skull fracture caused instantaneous death, she opined that there was no reason to 

think it would because it did not affect his vital center. In her 

opinion, it was possible for someone to be able to move himself after that type of injury. She also testified that Schuckman’s blood alcohol level was .298%, which would affect his 

motor skills. 

A police investigator testified that a football-sized pool of 

blood lay under Schuckman’s head, and based on debris on 

Schuckman, it appeared as though he had been dragged by 

his legs. He further testified that investigators found pieces of 

Schuckman’s cell phone at the hotel where Crochet and Dunn 

were staying. The cell phone had been used after Schuckman 

died to call Dunn’s girlfriend. A DNA analyst also testified; 

he reported that Crochet’s pants had blood on them that 

matched Schuckman’s DNA, but there was no similar positive 

DNA match in the stains on Dunn’s clothing. 
6 No. 20-1168

Dunn testified in his own defense. He explained that 

Schuckman had been intoxicated and acted aggressively toward him and his friends in the bar. At some point, he went 

outside to get cigarettes; Crochet followed soon after to get 

medicine out of the truck. When Crochet went into the truck, 

Schuckman approached in an agitated manner with his fist 

balled up over his head. Dunn then slapped Schuckman with 

his open left hand. After notifying the bartender about what 

had happened and checking on Schuckman, Dunn went back 

inside the bar and did not see Schuckman for the rest of the 

night. When the men got back to the hotel, Dunn’s cell phone 

was dead. He grabbed what he thought was Crochet’s phone 

off the dresser and called his girlfriend to say goodnight. 

The jury found Dunn guilty of all three counts. The state 

court sentenced him to 10 years of imprisonment followed by 

8 years of extended supervision. 

C. Postconviction Proceedings 

Dunn filed a motion for postconviction relief in the state 

trial court, contending that his counsel was ineffective for failing to investigate and present evidence of a no-causation defense.1 To succeed on this claim, under Strickland v. Washington, 466 U.S. 668 (1984), Dunn needed to show that his counsel’s performance was deficient and that he was prejudiced as 

a result. The court held an evidentiary hearing. Dunn called 

two witnesses: his trial counsel and a forensic pathologist, Dr. 

Peter Stephens. The state called the medical examiner who 

had testified at trial, Dr. Biedryzycki. 

1 Dunn also argued he was entitled to relief on other grounds that are 

no longer at issue. Accordingly, we will not discuss them further. 
No. 20-1168 7 

Dunn’s trial counsel testified that the cause of Schuckman’s death was an important issue in the case. He had consulted with a forensic pathologist, Dr. Robert Corliss, twice 

before trial in order understand the medical examiner’s report 

on the cause of death. At the initial consultation, Dr. Corliss 

believed Schuckman had died immediately after receiving the 

head trauma based on the information in the medical examiner’s report. Dunn’s counsel erroneously believed that the 

medical examiner’s report stated this conclusion. He memorialized this mistaken belief in two emails to the prosecutors, 

months apart, in which he stated that the medical examiner 

had concluded that Schuckman had died immediately from 

head trauma. He recognized, and pointed out to opposing 

counsel, that this fact undercut the state’s theory of the case. 

The bartender had witnessed Schuckman seemingly unharmed after Dunn’s slap, suggesting it could not have been 

the cause of Schuckman’s death. 

In the month leading up to trial, Dunn’s counsel consulted 

with Dr. Corliss again. In that conversation, they focused on 

the fact that Schuckman sustained multiple head injuries, beyond what would be explained by Dunn’s slap and Schuckman’s fall. He planned to cross-examine the medical examiner 

on this point. At that time, Dunn’s counsel was still operating 

under the erroneous belief that the medical examiner was going to testify that Schuckman’s death was immediate from the 

fatal blow to the back of his head. He expressed this belief just 

ten days before trial in response to an email from the prosecutor. The prosecutor emailed him and stated that Crochet’s 

attorney had retained a blood spatter expert and a 

pathologist, who were going to produce reports purportedly 

establishing that Schuckman had stood up in the area where 

he was found and then fell and hit his head. Dunn’s trial 
8 No. 20-1168

counsel did not follow up with the prosecutor or contact Crochet’s attorney to inquire about reports’ contents. Rather, he 

wrote back to the prosecutor an hour later, stating that: 

Our theory of defense has always been that Mr. Dunn 

slapped Mr. Schuckman in self-defense; that he didn’t 

die immediately because people heard him talking, 

mumbling, grumbling after hitting the parking lot, and 

that the medical examiner will say he died immediately. Therefore, there had to be a second time that his 

head hit the ground after Mr. Dunn’s slap that caused 

death. I believe that the testimony of the medical examiner, combined with the testimony of [the bartender], supports that there has to be another hit irrespective of what [Crochet’s attorney’s] pathologist 

says. 

Trial counsel did not speak with Dunn before sending this 

email, though he testified that Dunn had been clear about not 

wanting a continuance. He testified that he told Dunn about 

the prosecutor’s email sometime prior to trial. 

The expert reports referenced in the email were completed 

a week after Dunn’s trial concluded. There were three expert 

reports. First, a forensic pathologist wrote a report concluding 

that Schuckman suffered non-fatal injuries in the parking lot 

and he died due to injuries he received after falling backwards 

on the bar’s back patio. Second, a blood analyst concluded 

that Schuckman was not bleeding in the parking lot and he 

was never upright after sustaining the injury to the back of his 

head. Third, a neurologist and mechanical engineer calculated that Schuckman could have generated enough velocity 
No. 20-1168 9 

falling backwards on the back patio to fracture his skull, and 

extreme intoxication can result in such an “unbroken” fall.2 

Trial counsel stated that by the time Dunn’s trial started, 

he understood that the medical examiner would not testify 

that death was immediate. Given his email to the prosecutor, 

this understanding must have occurred sometime in the ten 

days before trial. Dunn’s counsel testified that he had no regret over not calling Dr. Corliss as a witness; he planned to 

draw out the fact that there were multiple injuries when crossexamining the medical examiner. He believed eliciting that 

testimony from a state’s witness was more advantageous for 

his client than calling his own witness. He further testified 

that Dr. Corliss told him that the medical examiner’s conclusions in the autopsy report were well-reasoned. 

During the postconviction hearing, Dunn also presented 

the testimony of Dr. Stephens, a forensic pathologist. Dr. Stephens opined that the laceration and skull fracture in the back 

of Schuckman’s head were the substantial cause of his death 

because he likely would have survived the other head injuries. He further opined that Schuckman sustained the skull 

fracture on the bar’s back patio—not the parking lot where 

Dunn had slapped him. In reaching this conclusion, he relied 

on the nature of the injury and the lack of blood in the parking 

lot and on Schuckman’s shirt. He testified that the nature of 

the impact causing the skull fracture would cause an immediate loss of consciousness, Schuckman would have been unlikely to be able to sit up and talk afterward, and he would 

2 The state later dismissed Crochet’s felony murder charge and allowed him to plead guilty to aiding a felon and misdemeanor battery. He 

received a sentence of time served. 
10 No. 20-1168

have died within a matter of minutes. Additionally, the 

amount of blood found underneath Schuckman’s head and 

the lack of blood in the parking lot supported his conclusion 

that Schuckman received the skull fracture and laceration on 

the back patio. If Schuckman had lived longer than a few 

minutes, the pool of blood would have been bigger. Further, 

the laceration’s size on the back of Schuckman’s head indicates it had the potential to bleed significantly and profusely 

because the scalp is highly vascular. The wound would have 

bled immediately. So if Schuckman had sustained it in the 

parking lot, one would expect to find blood both there and on 

Schuckman’s shirt because the bartender and bar patron saw 

Schuckman upright in the parking lot several minutes after 

Dunn slapped him. Thus, Dr. Stephens opined that Schuckman was never upright after sustaining the laceration and 

skull fracture, and so these injuries must have occurred on the 

back patio. 

Dr. Biedryzycki testified for the state at the hearing. She 

opined that the laceration was relatively small and not gaping, so it may or may not have bled a lot. The nature of 

Schuckman’s head injury did not lead her to assume that 

blood had to be present immediately after being injured. Further, she opined that the amount of blood under Schuckman’s 

head could not be used to determine how long he lived after 

receiving the injuries because blood could have continued to 

pool around his head even after death due to hydrostatic pressure. She acknowledged that there was nothing in her autopsy 

report that was inconsistent with Schuckman sustaining the 

skull fracture and laceration on the back patio. 

The trial court held that Dunn’s ineffective assistance of 

counsel claim failed Strickland’s prejudice prong. The 
No. 20-1168 11 

Wisconsin Court of Appeals affirmed the denial of Dunn’s 

postconviction motion. State v. Dunn, 372 Wis. 2d 458 (Wis. Ct. 

App. 2016) (per curiam). It “was not persuaded that trial 

counsel performed deficiently in his investigation of 

Schuckman’s death and presentation of a no-causation 

defense.” Id. ¶ 13. The state appellate court noted that Dunn’s 

trial counsel consulted with a forensic pathologist. Id. It 

further determined that “trial counsel’s testimony provides a 

reasonable explanation for his approach,” because he had 

strategic and practical reasons for not calling Dr. Corliss as a 

witness. Id. ¶¶ 15–16. Strategically, he believed he could get 

the medical examiner to testify about the presence of multiple 

injuries on cross-examination, and practically, Dr. Corliss told 

counsel that he thought the medical examiner’s report was 

well-reasoned. Id. ¶ 16. The state appellate court concluded 

that “[w]hile another lawyer may have handled the matter 

differently, that is not the standard for judging whether 

counsel’s representation was incompetent.” Id. The Wisconsin 

Court of Appeals did not reach Strickland’s prejudice prong. 

Dunn then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the 

Eastern District of Wisconsin. The district court granted 

Dunn’s habeas petition, concluding that he had received ineffective assistance of counsel. Dunn v. Jess, 430 F. Supp. 3d 568 

(E.D. Wis. 2019). It reasoned that Dunn’s counsel’s investigation of Schuckman’s death and of a no-cause defense was insufficient under any reasonable application of Strickland, because he failed to interview the medical examiner before trial, 

call a forensic pathologist, or investigate the exculpatory reports. Thus, the district court concluded that the state appellate court unreasonably applied Strickland’s performance 

prong. 
12 No. 20-1168

Because the state appellate court did not address 

Strickland’s prejudice prong, the district court reviewed the 

prong de novo. The court concluded that “Dunn has 

demonstrated a reasonable probability that the result would 

have been different had Dunn’s counsel adequately presented 

the no-causation defense and the jury heard expert testimony 

of the sort presented by Dr. Stephens.” Id. at 579. Because Dr. 

Stephens’s testimony “substantially undermines one’s 

confidence in the result” of the trial, while “the jury may have 

reached the same conclusion even with such evidence,” Dunn 

had provided sufficient evidence “to establish prejudice 

under Strickland.” Id. at 580. The district court thus granted 

Dunn’s habeas petition, and the state now asks us to reverse. 

II. Discussion 

“Under the Antiterrorism and Effective Death Penalty Act 

of 1996 (AEDPA), a federal court is not authorized to issue a 

writ of habeas corpus on a claim rejected by a state court on 

the merits unless the state-court decision ‘was contrary to, or 

involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court’ or ‘was 

based on an unreasonable determination of the facts.’” Cook, 

948 F.3d at 901 (quoting 28 U.S.C. § 2254(d)). A state-court decision “unreasonably applies federal law if it correctly identifies the governing Supreme Court precedent but unreasonably applies its holding to the facts of the case.” Id. 

This standard “sets a high bar for state prisoners seeking 

federal habeas review.” Jones v. Calloway, 842 F.3d 454, 460 

(7th Cir. 2016). When a state court has reached an issue on the 

merits, the inquiry is not whether we “agree with the state 

court decision or even whether the state court decision was 

correct,” it is “whether the decision was unreasonably wrong 
No. 20-1168 13 

under an objective standard.” Dassey v. Dittmann, 877 F.3d 

297, 302 (7th Cir. 2017) (en banc). If the standard “is difficult 

to meet, that is because it was meant to be.” Richter, 562 U.S. 

at 102. “Nonetheless, ‘difficult’ does not mean ‘impossible’ ... 

‘[t]he writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law.’” Cook, 948 

F.3d at 899 (quoting Richter, 562 U.S. at 91). 

Strickland provides the clearly established federal law for 

Dunn’s ineffective assistance of counsel claim. “A petitioner 

raising a Strickland claim is required to demonstrate two 

things.” Winfield v. Dorethy, 956 F.3d 442, 451 (7th Cir. 2020). 

“First, he must show that counsel provided constitutionally 

deficient performance” and second, he must “show that this 

deficient performance prejudiced his defense.” Id. at 451–52. 

“Failing to prove either element defeats a petitioner’s claim.” 

Id. at 452. 

AEDPA deference only applies to issues that the last reasoned state court decision reached on the merits. Here, the 

Wisconsin Court of Appeals reached the question of whether 

Dunn satisfied Strickland’s performance prong. When the 

state court “‘explains its decision on the merits in a reasoned 

opinion,’ this presents a ‘straightforward inquiry’ for the federal habeas court.” Lentz v. Kennedy, 967 F.3d 675, 688 (7th Cir. 

2020) (quoting Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018)). 

“[W]e focus on that decision and ‘simply review[] the specific 

reasons given by the state court and defer[] to those reasons if 

they are reasonable.’” Id. (quoting Wilson, 138 S. Ct. at 1192). 

Habeas relief is only warranted here if Dunn shows that the 

state appellate court’s determination that his counsel did not 

perform deficiently “was so lacking in justification that there 

was an error well understood and comprehended in existing 
14 No. 20-1168

law beyond any possibility for fairminded disagreement.” 

Richter, 562 U.S. at 103. The Wisconsin Court of Appeals did 

not reach Strickland’s prejudice prong, and so the parties agree 

that AEDPA deference does not apply and we review that 

prong de novo. 

A. Deficient Performance 

“To establish deficient performance, a person challenging 

a conviction must show that ‘counsel’s representation fell below an objective standard of reasonableness.’” Richter, 562 

U.S. at 104 (quoting Strickland, 466 U.S. at 688). This means a 

petitioner must identify errors “so serious that counsel was 

not functioning as the ‘counsel’ guaranteed the defendant by 

the Sixth Amendment.” Id. (quoting Strickland, 466 U.S. at 

687). “To avoid the inevitable temptation to evaluate a lawyer’s performance through the distorting lens of hindsight, 

Strickland establishes a deferential presumption that strategic 

judgments made by defense counsel are reasonable.” Mosley 

v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012). But for this deference to apply, the decision must be—in fact—strategic. “The 

consequences of inattention rather than reasoned strategic decisions are not entitled to the presumption of reasonableness.” 

Id. (citing Rompilla v. Beard, 545 U.S. 374, 395–96 (2005)). We 

“judge the reasonableness of counsel’s challenged conduct on 

the facts of the particular case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 690. Our review of the 

state court’s decision is “‘doubly deferential,’ ... [and] gives 

both the state court and the defense attorney the benefit of the 

doubt.” Burt v. Titles, 571 U.S. 12, 15 (2013) (quoting Cullen v. 

Pinholster, 563 U.S. 170, 190 (2011)). 

The Wisconsin Court of Appeals concluded that Dunn’s 

trial counsel did not perform deficiently in failing to 
No. 20-1168 15 

investigate and present a no-causation defense because he (1) 

consulted with a pathologist and (2) provided strategic and 

practical explanations for his approach. Upon closely 

examining the facts of this case, we find that the Wisconsin 

Court of Appeals unreasonably applied Strickland because 

Dunn’s counsel was poorly informed and based his strategic 

decisions on a complete misunderstanding of a key piece of 

evidence—namely, the medical examiner’s opinion on the 

immediacy of death. 

It was unreasonable for the state appellate court to find 

that trial counsel did not perform deficiently because he consulted with a forensic pathologist. Indeed, at the initial consultation, Dr. Corliss provided trial counsel with a crucial 

piece of evidence supporting Dunn’s no-causation defense: he 

thought Schuckman died immediately. Whether Dunn 

caused Schuckman’s death was a critical issue in the case. The 

state’s main theory of the case depended on connecting two 

events: Dunn slapping Schuckman in the bar’s parking lot, 

and Schuckman being found dead hours later on the bar’s 

back patio. Evidence that Schuckman would have died immediately after receiving his fatal head injuries would have lent 

strong support that these two events were not causally connected because multiple witnesses saw Schuckman alive, apparently unharmed, and upright after Dunn slapped him. Yet 

Dunn’s counsel seemingly misattributed Dr. Corliss’s opinion 

that death was immediate to the medical examiner, and erroneously believed that the medical examiner’s report meant 

she would testify to that at trial. He failed to confirm that the 

medical examiner would introduce this key piece of evidence 

at trial or otherwise investigate the immediacy of death. His 

mistaken belief infected his trial strategy to such an extent that 

his approach to investigating and presenting a no-causation 
16 No. 20-1168

defense cannot be reasonably viewed as strategic, even with 

the “heavy measure of deference” afforded him under Strickland. 466 U.S. at 691. His “failure to investigate thoroughly resulted from inattention, not reasoned strategic judgment.” 

Wiggins v. Smith, 539 U.S. 510, 526 (2003). It is thus unreasonable to view trial counsel’s decision to consult with a forensic 

pathologist as satisfactory performance, considering trial 

counsel did not use the crucial information gleaned from that 

consultation. 

It was also unreasonable for the state appellate court to 

find that trial counsel’s explanation for his approach contained reasonable strategic and practical reasons. Dunn’s 

counsel explained he did not call Dr. Corliss as a witness because he thought the evidence would be more persuasive if 

elicited from the medical examiner on cross-examination. The 

state appellate court found this explanation demonstrated 

that trial counsel was acting strategically. This overlooks the 

fact that trial counsel was not able to elicit a crucial piece of 

evidence from the medical examiner on cross-examination: 

that Schuckman died immediately. “A court adjudicating a 

Strickland claim can’t just label a decision ‘strategic’ and 

thereby immunize it from constitutional scrutiny,” and the 

state court’s determination that trial counsel was acting strategically here is not reasonable. Jones, 842 F.3d at 464. In fact, 

his causation strategy was primarily based on the improbable 

assumption that the state’s medical examiner would testify 

that the state’s causation theory was medically impossible. 

And when that unlikely strategy blew up, counsel had no 

Plan B. 

Trial counsel and the state appellate court seemingly view 

the evidence about multiple injuries—which trial counsel was 
No. 20-1168 17 

able to elicit on cross-examination—as substitute evidence in 

support of a no-causation defense. But while evidence that 

Schuckman had more injuries than could be explained by the 

slap and fall lends some support to the theory that Dunn did 

not cause his death, it is not nearly as strong as evidence that 

Schuckman died immediately after the blunt force trauma to 

the back of his head. The medical examiner testified that all 

Schuckman’s injuries contributed to his death. In order to 

convict for felony murder, the jury only needed to find that 

Dunn’s conduct was a substantial factor in bringing about 

Schuckman’s death. See State v. Oimen, 184 Wis. 2d 423, 404–

05 (1994). So while the presence of multiple injuries suggests 

that Schuckman may also have been injured by someone or 

something other than Dunn, given the medical examiner’s testimony that all the injuries contributed to his death, the jury 

could still reasonably find that the Dunn’s slap was a substantial factor in his death. Evidence that Schuckman died immediately from one fatal blow, conversely, is much stronger evidence that Dunn did not cause his death. Multiple witnesses 

saw Schuckman alive, apparently unharmed, and standing 

several minutes after Dunn slapped him. Given this, trial 

counsel’s explanation for not calling his forensic 

pathologist—that he could elicit the relevant information 

from the medical examiner on cross-examination—cannot be 

reasonably viewed as strategic. See Washington v. Smith, 219 

F.3d 620, 630–34 (7th Cir. 2000) (finding ineffective assistance 

where counsel failed to investigate and call additional alibi 

witnesses because the defendant’s location “was the issue in 

the case,” and the one alibi witness counsel called had questionable credibility because he had a prior conviction). 

Trial counsel’s “practical” explanation for why he did not 

call Dr. Corliss as a witness also fails. Trial counsel testified 
18 No. 20-1168

that he did not call Dr. Corliss because the pathologist told 

him the medical examiner’s conclusions in the report were 

well-reasoned. But the medical examiner’s conclusion that 

there was an interval of survival was not contained in her report. And when trial counsel spoke with Dr. Corliss in April, 

trial counsel still had the mistaken belief—memorialized by 

his email a mere ten days before trial—that the medical examiner would testify that death was immediate. So while it follows that at the time trial counsel spoke with Dr. Corliss there 

was no contradiction between Dr. Corliss’s opinion and the 

medical examiner’s perceived opinion, when trial counsel realized that the medical examiner disagreed on the immediacy 

of death, his decision to not call his pathologist cannot reasonably be called “practical.” For these reasons, the state appellate court unreasonably applied Strickland when it determined that counsel did not perform deficiently because he 

had strategic and practical reasons for his approach to Dunn’s 

no-causation defense. 

None of the state appellate court’s stated reasons for finding trial counsel’s performance satisfactory are reasonable. 

Further, the Wisconsin Court of Appeals failed to adequately 

consider or address counsel’s decision to disregard the exculpatory expert reports he was informed about shortly before 

trial. Dunn’s counsel did not seek out further information on 

the reports or ask for a continuance. While “reasonably diligent counsel may draw a line when they have good reason to 

think further investigation would be a waste,” Rompilla, 545 

U.S. at 383 (emphasis added), here trial counsel only had a 

bad reason not to follow up: his inaccurate belief that he already had a witness who would provide similar testimony. A 
No. 20-1168 19 

tactical decision based on a complete misunderstanding of an 

essential piece of evidence does not equate to strategy.3

Sometime in the days before trial, trial counsel figured out 

that the medical examiner would not testify as he thought she 

would. Thus, “[e]ven if defense counsel could have initially 

believed expert testimony unnecessary,” finding out the medical examiner was going to testify that Schuckman did not die 

immediately should “have alerted any reasonable attorney to 

the need to rebut with a defense expert.” Woolley v. Rednour, 

702 F.3d 411, 423 (7th Cir. 2012) (finding counsel performed 

deficiently where he “remained nearly passive in the face of 

damning” testimony that “effectively hollowed out the core 

of his client’s defense” because he “fail[ed] to retain an expert 

witness” or “ask for a continuance”). Given that he knew that 

he no longer could elicit this crucial piece of information on 

cross-examination, his planned approach to the no-causation 

defense at trial cannot reasonably be viewed as strategic. Rather than calling Dr. Corliss to testify or requesting a continuance to obtain the exculpatory reports, he decided to rely on 

his cross-examination of the medical examiner to advance the 

no-causation defense. But the information he could elicit from 

her—that Schuckman sustained multiple injuries—only provided weak support that Dunn’s slap was not a substantial 

factor in Schuckman’s death. He failed to offer any evidence 

to rebut the medical examiner’s conclusions that there was an 

3 Trial counsel’s testimony that Dunn would not have wanted a continuance to wait for the completed expert reports does not render his decision to not investigate further strategic. Counsel had a fundamental misunderstanding about how a key witness would testify, which prevented 

him from being able to accurately advise his client on the state of the evidence and the potential necessity of a continuance. 
20 No. 20-1168

interval of survival and all Schuckman’s injuries contributed 

to his death. He did not present any evidence whatsoever that 

Schuckman died immediately—despite having both a forensic pathologist who had expressed this belief and the information about exculpatory expert reports that suggested that 

Schuckman died on the back patio and did not stand upright 

after the fatal injury. 

Trial counsel’s approach to presenting a no-causation defense was thus, “in light of all the circumstances ... outside 

the wide range of professionally competent assistance.” 

Strickland, 466 U.S. at 690. This finding does not mean that 

counsel must always interview a medical examiner or retain 

an expert witness to be considered effective. “[I]t may be reasonable,” in some cases, “to rely on cross-examination to cast 

general doubt on the government’s version of events.” Woolley, 702 F.3d at 424. It also may be reasonable to rely on the 

medical examiner’s report, or to not seek out additional exculpatory information if it were cumulative. But here, trial counsel’s investigation and presentation of a no-causation defense 

rested on an erroneous belief, until days before trial, that he 

would be able to elicit a crucial piece of information from the 

medical examiner. He then remained “nearly passive in the 

face of damning” testimony from the medical examiner that 

Dunn caused Schuckman’s death. Woolley, 702 F.3d at 423. We 

thus conclude that Dunn’s trial counsel’s performance was 

deficient under Strickland. 

B. Prejudice 

We next turn to Strickland’s prejudice prong, which we review de novo in light of the state appellate court’s silence on 

this point. To prevail, Dunn must “affirmatively prove prejudice,” meaning that “there is a reasonable probability that, but 
No. 20-1168 21 

for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 693–94. 

“A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. This does not require Dunn to prove that his “counsel’s deficient conduct 

more likely than not altered the outcome in the case,” id. at 

693, but the “likelihood of a different result must be substantial, not just conceivable.” Richter, 562 U.S. at 112. 

We conclude that there is a reasonable probability that the 

result would have been different if Dunn’s trial counsel had 

adequately investigated and presented evidence that Dunn 

did not cause Schuckman’s death. Given the evidence that 

Schuckman was seen alive and apparently unharmed after 

the slap meant that the medical examiner’s testimony at trial 

was key in linking Dunn’s slap to Schuckman’s death. Her 

testimony that all Schuckman’s injuries contributed to his 

death and there was no reason to think he died quickly went 

unrebutted at trial. Dr. Stephens’s testimony cast significant 

doubt on these conclusions and is sufficient to undermine our 

confidence in the outcome. See Mosley, 689 F.3d at 851 (holding that where important testimony was not offered and the 

evidence against the defendant was not overwhelming, Strickland’s prejudice prong was satisfied). 

Dr. Stephens’s testimony contradicted the medical examiner’s in two key ways. First, while the medical examiner testified that all Schuckman’s injuries contributed to his death, 

Dr. Stephens opined the skull fracture and laceration to the 

back of Schuckman’s head were the substantial cause of his 

death and he likely would have survived his other injuries. 

Second, Dr. Stephens disagreed with the medical examiner 

about how long Schuckman likely survived after sustaining 
22 No. 20-1168

the skull fracture. The medical examiner testified she had no 

reason to think that Schuckman would have died immediately from his injuries because they did not affect his vital center; Dr. Stephens testified that Schuckman would have been 

rendered immediately unconscious, would be unlikely to be 

able to sit up afterward, and would have died within minutes. 

An analogous set of facts arose in Rogers v. Israel, 746 F.2d 

1288, 1293–94 (7th Cir. 1984). There, like here, a crucial question in the case was whether the victim in a bar fight was immediately incapacitated by his injuries. Trial counsel in both 

cases failed to rebut the state’s pathologist’s testimony that 

incapacitation would not occur immediately, though the 

counsel could have presented such expert testimony. In Rogers, we found that expert testimony regarding the immediacy 

of incapacitation “was critical to the presentation of the defense,” and so there was a reasonable probability that the jury 

would have had a reasonable doubt about the defendant’s 

guilt if it had been presented. Id. at 1293. We find the same 

here. 

In addition to rebutting some of the medical examiner’s 

testimony, Dr. Stephens’s testimony undermined the state’s 

theory of the case in other ways. He testified that the laceration on the back of Schuckman’s head would bleed immediately and profusely. Yet there was no blood found in the parking lot, and Schuckman did not have blood dripping down 

the back of his head. Dr. Stephens’s opinion based on these 

facts—that Schuckman was injured on the back patio rather 

than in the parking lot—thus contradicted the state’s theory 

of the case. The medical examiner conceded at the postconviction hearing that nothing in her testimony was inconsistent 

with Schuckman receiving his injuries on the back patio. 
No. 20-1168 23 

We recognize that the medical examiner’s testimony was 

not the only incriminating evidence in this case. Even at a hypothetical trial where counsel presented testimony like that of 

Dr. Stephens’s, the jury would have learned that Schuckman’s 

cell phone was found at Dunn and Crochet’s hotel, Schuckman’s DNA was found on Crochet’s pants, and Crochet was 

spotted walking from the direction where Schuckman was 

found later that night. “Logically, a verdict weakly supported 

by the record is more likely to have been affected by errors 

than one with overwhelming record support.” Cook, 948 F.3d 

at 909. But we do not find this other evidence constitutes overwhelming support that Dunn is guilty of felony murder. Rather, much of this evidence potentially incriminates Crochet. 

It was Crochet who had Schuckman’s blood on his pants, and 

Crochet who was witnessed leaving the bar, and ten to fifteen 

minutes later, walking away from the direction where 

Schuckman was later found. But Dunn’s guilt is not necessarily tied with Crochet’s—the same witness who testified he 

saw Crochet walking away from the area where Schuckman 

was found also testified that he saw Dunn seated in the 

pickup truck at that time. And notably, despite the forensic 

and eyewitness testimony implicating Crochet in Schuckman’s death, Crochet was able to leverage the exculpatory expert reports to negotiate a plea bargain for a time-served sentence. 

There is of course a chance that even if the jury had heard 

testimony like that offered by Dr. Stephens, it would have 

nonetheless convicted Dunn for felony murder. It may have 

still found that Dunn’s slap caused the skull fracture, or that 

Dunn was liable as a party to a crime based on the evidence 

against Crochet. But the fact that no evidence was offered 

about the timing and location of Schuckman’s death 
24 No. 20-1168

substantially undermines our confidence in this result. This is 

sufficient to establish prejudice under Strickland. 

III. Conclusion 

The Wisconsin Court of Appeals unreasonably applied 

Strickland when it determined that Dunn’s trial counsel did 

not perform deficiently. Dunn was prejudiced as a result of 

his trial counsel’s errors, and so the district court’s grant of 

habeas relief is 

AFFIRMED.