In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-1169 

DEWAYNE A. DUNN, 

Petitioner-Appellee, 

v.

RON NEAL, Warden, Indiana State Prison, 

Respondent-Appellant. 

____________________ 

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:18-cv-178 — Philip P. Simon, Judge. 

____________________ 

ARGUED SEPTEMBER 27, 2021 — DECIDED AUGUST 12, 2022 

____________________ 

Before ROVNER, HAMILTON, and KIRSCH, Circuit Judges. 

ROVNER, Circuit Judge. Dewayne Dunn was convicted in 

Indiana state court for the murder of Angel Torres and sentenced to a term of imprisonment of 58 years. The state’s case 

against Dunn was based largely on the testimony of two 

pathologists. In a state court post-conviction proceeding, 

Dunn sought a new trial, arguing that his trial counsel was 

ineffective for failing to consult with any forensic pathologist. 

The court denied that relief, and the Indiana Court of Appeals 
2 No. 21-1169 

affirmed the post-conviction court’s decision. Dunn subsequently filed a petition for a writ of habeas corpus under 28 

U.S.C. § 2254 based on the ineffective assistance of trial counsel, and the district court granted a conditional writ of habeas 

corpus. The state now appeals that grant of the writ to this 

court. 

The district court, in assessing the merits of the pro se habeas petition, properly limited its consideration to only the 

facts as presented to the state court and did not conduct its 

own evidentiary hearing. See Shinn v. Martinez Ramirez, 142 

S. Ct. 1718, 1739–40 (2022). As did the district court, we recite 

the facts as set forth in the state court record and decision, 

which are not challenged by the parties. 

I.

The incident that formed the basis of the criminal conviction occurred in Elkhart, Indiana, outside the apartment 

building in which Dunn resided. At the time, Dunn lived in a 

second-floor apartment with his former girlfriend, Letha 

Sims, and two of her sons. That apartment had a balcony with 

an external staircase to the ground that was shared with the 

adjacent apartment in which Angel Torres, the victim, resided. Although Sims and Dunn were still living together, according to Letha by the date of the incident they were no 

longer on good terms and were no longer intimate. Sims and 

Torres had sex on one occasion, but Sims described her relationship with him as one of close friends. Dunn and Torres 

were friends, and would frequently sit on the porch socializing, smoking and drinking. 

On September 3, 2008, Damen Collins was riding his bike 

near the apartment building when he saw an altercation 
No. 21-1169 3

between persons later identified as Dunn and Sims taking 

place on a balcony, heard Sims screaming for help, and saw 

her being pushed halfway down the stairs. He saw another 

man, identified as Torres, come out of his apartment and 

Dunn pushed him back into his apartment. Collins was about 

100 feet away from the balcony when he saw the altercation, 

and nothing was blocking his view. Collins then called 911 

and left the area. Although Collins claimed that it was dusk 

at the time of the incident, that assertion is clearly wrong because the 911 call was received at 11:40 p.m. 

Officers arrived on the scene about eight minutes after receiving the dispatch and found Torres lying at the bottom of 

the staircase in a pool of blood, unresponsive and with labored breathing. A baseball bat was underneath his body.

Dunn was nearby along with Sims’s son Jamar “Willie” Sims. 

Dunn was very agitated and shouting that he “didn’t do anything.” 

Torres subsequently died as a result of his injuries, and 

Dunn was convicted of first degree murder. The evidence at 

trial consisted of expert testimony from the state by a forensic 

pathologist and a blood spatter expert, and, for the defense, 

eyewitness testimony from Sims and her son Willie, a high 

school junior. 

Willie testified that he witnessed the altercation between 

Dunn and Torres that night, and recounted it as follows. Earlier in the day, several people including Sims, Torres, Dunn 

and other friends were all on the balcony drinking. Willie 

went to take a nap and awakened to hear Dunn screaming 

and hollering. Willie followed Dunn upstairs and while Willie 

was getting a drink of water, Dunn walked outside and Willie 

heard an argument ensue between Dunn and Torres, and 
4 No. 21-1169 

heard Dunn say, “don’t hit me with that bat.” Willie then 

looked outside and observed Torres and Dunn fighting and 

saw Torres strike Dunn on the shoulder with a baseball bat. 

Willie saw the two wrestling over the bat after Torres struck 

Dunn with it. Both were perilously close to the stairs, with 

Dunn facing the stairs and Torres with his back to the stairs. 

As they struggled over the bat, Willie saw Torres fall backwards down the steps, landing on the banister first and then 

flipping over it and hitting the pavement below head first.

Willie ran down the stairs to help and saw Torres in a pool of 

blood. He then ran to flag down a police officer. He never saw 

Dunn strike Torres, either with the bat or anything else. 

Sims testified as well regarding the events of that day. She 

stated that earlier that day, she went next door to Torres’s 

apartment to have a beer while Dunn took the dog for a walk. 

One beer led to more and to some Bacardi Rum, and when he 

returned from the walk Dunn joined them. They were all 

laughing and having a good time until an argument between 

Torres and Dunn broke out. Sims could not recall what 

prompted the argument, but said that Torres and Dunn argued a lot, especially when they were drinking. The argument 

spilled out onto the porch, and Sims and her other son went 

outside to break it up. She then went back inside Torres’s 

apartment, and Torres and Dunn each went back into their 

apartments. At some time later, Dunn kicked the door to get 

back into Torres’s apartment. Torres then grabbed the baseball bat and Torres and Dunn went back outside. Sims could 

hear the commotion outside through the screen door, and 

heard Dunn tell Torres to “stop hitting me with the bat.” She 

went out onto the porch when she heard a thud, looked down, 

and saw Torres at the bottom of the stairs with the bat under 

him. When Sims came out of the apartment, she saw Dunn 
No. 21-1169 5

standing at the top of the stairs and observed him descend the 

stairs and begin tugging on Torres’s arm, imploring him to 

get up. 

The first officer arrived on the scene eight minutes after 

receiving the dispatch and observed Dunn standing next to 

Torres’s body exclaiming “I didn’t do anything!” Dunn told 

the officer that Torres had struck him with the bat and that a 

scuffle had ensued. The officer stated that Torres was lying on 

the baseball bat when he arrived, and that Dunn was upset 

but not acting aggressively. Another officer interviewed Sims, 

and her statements to him were consistent with her subsequent trial testimony, including telling the officer that she 

heard Dunn tell Torres to stop hitting him with the bat, and 

that she heard a thud, went outside, and saw Torres on the 

pavement below.

Other evidence corroborated at least some of that witness 

testimony. For instance, Dunn was taken to the hospital that 

evening, and photos of his back show abrasions on his shoulders consistent with being struck by a bat. In addition, when 

asked at the hospital how he got those injuries, Dunn told the 

evidence technician that he was struck by a baseball bat. He 

told the responding officer the same thing. The testimony as 

to the drinking that occurred that day was also corroborated 

by hospital records. According to the emergency room doctor 

who worked on Torres later that evening, Torres’s blood alcohol content was .294, establishing that he was significantly 

under the influence of alcohol. Finally, in addition to the evidence that the bat was under Torres’s body on the ground, 

forensic examination of the bat determined that Torres’s 

blood was found on the handle and middle portion of the bat 
6 No. 21-1169 

but not the barrel of the bat, which was consistent with the 

claims that the bat was used to strike Dunn but not Torres. 

Torres died from his injuries, and an autopsy was 

conducted by Dr. Chrenka, who is board certified as an 

anatomical, clinical, and pediatric pathologist, but is not a 

board-certified forensic pathologist. Although he occasionally 

does autopsies, most of Dr. Chrenka’s work does not involve 

doing them. He identified the cause of death as massive blunt 

trauma to the head. The determination of the manner of 

death, such as whether it could be deemed a homicide, 

suicide, or accident, was deemed to be “uncertain.” 

Nearly two years after Torres’s death, the state charged 

Dunn with murder in his death. The state’s theory was that 

Torres’s death resulted from a beating that occurred after the 

fall, and that some object was used to beat him but not necessarily the bat. In fact, at closing argument, the state conceded 

that the evidence indicated the bat was not the weapon used 

in the beating. 

At trial, the state presented expert testimony from a blood 

spatter expert and a forensic pathologist. Dr. Scott Wagner 

was a board-certified forensic pathologist who had testified 

on cases hundreds of times, 98% of them for the state. He was 

retained by the state to review the autopsy of Dr. Chrenka. 

Dr. Wagner testified that Torres had multiple skull fractures, 

with part of his skull “crushed like gravel” and his ribs broken 

as well as his clavicle, and that he experienced severe trauma. 

On cross-examination, defense counsel merely confirmed that 

Dr. Wagner was being called for his second opinion on the 

cause and manner of death. On redirect examination, Dr. 

Wagner testified that Dunn’s injuries were not consistent with 

someone merely falling down the stairs. 
No. 21-1169 7

Dean Marks, a sergeant of the Indiana State Police, who 

had specialized training in blood spatter analysis, testified as 

to that evidence. He testified that the pattern of Torres’s blood 

that was found on the wall at the bottom of the staircase was 

caused by “impact spatter,” which means that some degree of 

force was applied to a blood source, causing the blood to disperse. He maintained that the blood spatter pattern was not 

consistent with someone walking or even stomping through 

the blood that was pooled on the pavement, or with Torres 

simply falling down the stairs. Torres’s blood was also spattered on a vehicle parked adjacent to the stairs and parallel to 

the bloodstained wall, and there was “cast-off blood staining” 

on the concrete between the staircase and the vehicle, indicating that a bloody instrument of some kind had been “swung” 

or flung.”

In addition to that testimony, evidence was presented that 

Dunn’s shoeprint was found on the outside of Torres’s apartment door and the doorjamb was freshly splintered, and that 

blood was cast onto the door after that shoeprint had been 

made. Dunn’s shoeprints in Torres’s blood were found on the 

second step of the staircase, and a pool of blood on the pavement at the bottom of the staircase contained Dunn’s shoeprint. In addition, Torres’s blood was found on the sole of 

Dunn’s shoe. Blood was found on Dunn’s shorts, and DNA 

testing revealed a mixture of a major and minor profile, with 

Dunn as the source of the major profile and no conclusion able 

to be drawn from the minor profile.

Finally, as to the blood spatter, there was substantial evidence of several people stomping around the crime scene. 

Dunn was seen standing next to Torres trying to forcibly pull 

him up by his arm. And both Dunn and Willie were seen 
8 No. 21-1169 

standing near Torres, walking next to Torres, and traversing 

up and down the stairs. At least three officers were seen walking around the crime scene near Torres, and photos also revealed medics walking through the blood. Moreover, while 

the crime scene was being processed, it began to rain.

II.

On post-conviction appeal in the state court, Dunn argued 

that he was denied effective assistance of counsel because his 

lawyer failed to consult a forensic pathologist to testify as to 

the cause of death, which was the pivotal issue in his criminal 

trial. An evidentiary hearing was held in that post-conviction 

proceeding, at which Dunn’s trial counsel and a forensic 

pathologist, Dr. Thomas Sozio, testified. 

At that evidentiary hearing, Dr. Sozio testified that he is a 

board-certified forensic pathologist, who has completed approximately 4500 autopsies in his career, and who has testified as an expert pathologist on the cause or manner of death 

throughout the State of Indiana, usually on behalf of the state. 

He testified that the autopsy conducted by Dr. Chrenka was 

substandard and missed a great deal. As to the critical issue 

at trial—the manner of death—he testified, contrary to the testimony presented by the state from Dr. Wagner, that Torres’s 

injuries were much more consistent with a fall than with being bludgeoned by a blunt object. He explained that he observed just one small laceration on Torres’s scalp, whereas if 

he were hit multiple times, one would expect multiple lacerations. He also noted an absence of defensive injuries. He testified that based on the area of the injury to Torres’s head, and 

the nature of the fracture as a linear fracture rather than a depressed fracture, the fracture was more indicative of a fall. He 

further concluded that:
No. 21-1169 9

To me, all the injuries are on the same side of the 

body in a line. All the ribs, the lungs, the—the 

liver, the clavicle, all of it’s the same line, significant force. That—that tells me all day everyday 

it’s a fall.

PCR Tr. at 52. 

He additionally pointed to Torres’s blood alcohol content 

of .294, and his fatty liver consistent with chronic alcoholism, 

which itself is associated with reduced clotting times and 

greater susceptibility to broken bones. He determined that the 

manner of death should properly be classified as “undetermined” because the cause of the fall was undetermined, stating that “whatever occurred at the top of the stairs ... [i]t 

could have been a push, it could have been a strike, but all the 

injuries that I’m observing are basically due to a fall from 

height.” Id. at 40. He therefore testified that he did not believe 

that Torres was struck at the bottom of the stairs. The state has 

denied reliance on the fall as the cause of the death in this case, 

and therefore his testimony directly refuted the state’s case.

Dunn’s trial counsel also testified at the evidentiary hearing. He conceded at the hearing that he was focused on the 

bat and evidence that the bat did not have Torres’s blood on 

the barrel, and that focus clouded his judgment. He acknowledged that he never consulted a pathologist or blood spatter

expert and did not depose Dr. Chrenka or Dr. Wagner even 

though the rules of the State of Indiana permitted such depositions in criminal cases. He testified that there was no strategic reason for not consulting an expert forensic pathologist in 

the case.
10 No. 21-1169 

The Indiana Court of Appeals affirmed Dunn’s conviction 

and sentence, and the Indiana Supreme Court denied his petition for transfer. The district court granted Dunn’s pro se habeas petition. In so doing, the district court first held that the 

Indiana Court of Appeals improperly applied an incorrect legal standard, and therefore its decision was not entitled to the 

usual deference mandated by the Antiterrorism and Effective 

Death Penalty Act of 1996 (AEDPA). Applying the Strickland

standard de novo, the district court then concluded that Dunn 

had established the deficient performance of trial counsel and 

prejudice.

III.

Our review begins, then, with the question as to whether 

AEDPA deference is proper when analyzing the decision of 

the Indiana Court of Appeals. The AEDPA revised the standards for evaluating the merits of a habeas petition, providing 

under 28 U.S.C. § 2254(d) that, for a claim adjudicated on the 

merits in state court, “a federal court cannot grant relief unless 

the state court (1) contradicted or unreasonably applied [the 

Supreme] Court’s precedents, or (2) handed down a decision 

‘based on an unreasonable determination of the facts in light 

of the evidence presented in the State court proceeding.’” 

Shoop v. Twyford, 142 S. Ct. 2037, 2043 (2022). The AEDPA restricts the consideration of new evidence by the federal habeas court, and expressly limits review of factual determinations to evidence presented in the state court proceeding. Id.; 

Shinn, 142 S. Ct. at 1739. Here, the district court limited its 

consideration to the facts determined in the state court, including those developed in the evidentiary hearing in the 
No. 21-1169 11

state post-conviction court, and we base our decision on that 

record as well.

The district court in this case held that the state court decision was “contrary to” federal law, and therefore was not 

entitled to the usual AEDPA deference and should be reviewed de novo. As the Supreme Court explained in Williams 

v. Taylor, 529 U.S. 362, 405–06 (2000): 

A state-court decision will certainly be contrary 

to our clearly established precedent if the state 

court applies a rule that contradicts the governing law set forth in our cases. Take, for example, 

our decision in Strickland v. Washington, 466 U.S. 

668 (1984). If a state court were to reject a prisoner’s claim of ineffective assistance of counsel 

on the grounds that the prisoner had not established by a preponderance of the evidence that 

the result of his criminal proceeding would 

have been different, that decision would be “diametrically different,” “opposite in character or 

nature,” and “mutually opposed” to our clearly 

established precedent because we held in Strickland that the prisoner need only demonstrate a 

“reasonable probability that ... the result of the 

proceeding would have been different.” Id. at 

694. ... [In that scenario], a federal court will be 

unconstrained by § 2254(d)(1) because the statecourt decision falls within that provision's “contrary to” clause. 

The error of law identified by the Supreme Court in Williams is precisely the error present in the state court decision 

in this case, in that the Indiana appellate court repeatedly 
12 No. 21-1169 

identified the standard as requiring that the result of the proceeding would have been different. As detailed below, the Indiana appellate court in this case thus applied a rule that contradicts the governing Supreme Court law, and its decision is 

not entitled to AEDPA deference.

A.

There are two problems with the state court’s recitation of 

the standard in this case. First, the court repeatedly misrepresented the standard in the manner that the Court identified as 

unacceptable in Williams. At critical points in its opinion, the 

state court characterized the standard as whether the evidence establishes that consulting with another expert would 

have changed the outcome of the trial. The state court did not 

exclusively mischaracterize the standard, reciting at times the 

proper standard, as to whether the evidence demonstrated a 

“reasonable probability” that, but for the deficient conduct, 

the result of the proceeding would have been different. In a 

number of cases, we have held that where a state court 

properly identifies the standard, its later failure to include 

language such as the “reasonable probability” limitation will 

not be deemed to evidence the application of a wrong standard, but instead will be interpreted to constitute merely a 

shorthand reference to the correct standard. See, e.g., Olvera v. 

Gomez, 2 F.4th 659, 671 (7th Cir. 2021); Malone v. Walls, 538 

F.3d 744, 758 (7th Cir. 2008). That approach is consistent with 

our deference to state courts, and our presumption that a state 

court, having identified the proper standard, is then applying 

that proper standard in its further truncated recitation of the 

standard. Olvera, 2 F.4th at 671. That deferential, and practical, 

interpretation of a state court’s opinion is entirely appropriate 
No. 21-1169 13

absent evidence that the state court did, in fact, apply a wrong 

standard. Id. 

But as the district court found, the state court opinion in 

fact applied an improper standard. Its language employing 

the wrong standard cannot be read as a truncated version of 

the proper standard given the court’s explanation of its role 

on appeal and the analysis used by the court. First, the 

Indiana appellate court made clear its understanding of its 

role at the outset of the opinion. The court stated that the postconviction court’s order denying Dunn’s post-conviction 

petition held, in relevant part: 

[Dunn] has failed in his burden to develop evidence 

that establishes that consulting with another expert 

would have changed the outcome of the trial. The 

witness presented by [Dunn] simply provided 

another expert opinion as to the cause of death 

of the victim which lacks some credibility when 

considered in connection with the totality of the 

evidence presented at trial.

[emphasis added] Ind. App. Mem. Decision at 12–13. The 

Indiana appellate court then declared that “[t]o succeed in his 

appeal, Dunn must convince us that ‘the evidence as a whole 

leads unerringly and unmistakably to a decision opposite that 

reached by the post-conviction court. ... Put another way, 

Dunn ‘must convince this Court that there is no way within 

the law that the court below could have reached the decision 

it did.’” Id. at 13. In affirming the decision of the postconviction court, the Indiana appellate court never took issue 

with the post-conviction court’s recitation of the burden as 

providing “evidence [that] establishes that consulting with 

another expert would have changed the outcome.” That is 
14 No. 21-1169 

precisely the standard which the Williams Court identified as 

“’diametrically different,’ ‘opposite in character or nature,’ 

and ‘mutually opposed’ to our clearly established precedent 

because we held in Strickland that the prisoner need only 

demonstrate a ‘reasonable probability that ... the result of the 

proceeding would have been different,’” and which therefore 

falls within the “contrary to” clause of the AEDPA. Williams, 

529 U.S. at 406. Although the Indiana appellate court quoted 

the Strickland standard in subsequent boilerplate recitation of 

the requirements of the Sixth Amendment and Strickland, in 

its analysis portion in which it actually applied the standard, 

it again returned to that improper standard used by the postconviction court. In fact, its legal conclusion finishes where it 

started as to the wrong standard, holding “[b]ased on this 

record, we cannot say that the evidence as a whole leads 

unerringly and unmistakably to the conclusion that the 

evidence produced from consulting with a forensic 

pathologist would have changed the outcome of Dunn’s 

trial.” Ind. App. Mem. Decision at 19. The Indiana appellate 

court therefore not only anchored its review in the improper 

standard used by the post-conviction court, but it also 

articulated that same improper standard itself in its 

conclusion and reflected that burden in its analysis. We 

cannot therefore dismiss the improper standard as a mere 

shorthand reference to the proper standard.1

1 The dissent challenges this determination by arguing that the proper 

issue here is not whether the Indiana appellate court disavowed the incorrect lower court standard or mischaracterized the standard itself, but 

whether the court applied the right standard. We agree that the question is 

what standard was actually applied and repeatedly recognized as much.

See supra at 12–13 ( the “deferential, and practical, interpretation of a state 

court’s opinion is entirely appropriate absent evidence that the state court 
No. 21-1169 15

B.

Moreover, even if we were to determine that the failure to 

include the “reasonable probability” language at those critical 

junctures was merely a shorthand reference to the proper 

standard, the court’s opinion is “contrary to law” for an additional reason based on the burden it imposed to demonstrate 

whether the evidence “would have changed the outcome.” 

That phrase has consistently been defined as requiring only a 

showing of a reasonable probability that at least one juror 

would possess a reasonable doubt. See, e.g., Buck v. Davis, 137 

S. Ct. 759, 776 (2017) (Strickland requires a showing of “a reasonable probability that ... at least one juror would have harbored a reasonable doubt.”); Strickland, 466 U.S. at 695 

(“When a defendant challenges a conviction, the question is 

whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”); Thomas v. Clements, 789 F.3d 760, 773 (7th Cir. 

did, in fact, apply a wrong standard”); at 14 (“in its analysis portion in 

which it actually applied the standard, [the court] again returned to that 

improper standard used by the post-conviction court”); at 14 (“[t]he Indiana appellate court therefore not only anchored its review in the improper 

standard used by the post-conviction court, but it also articulated that 

same improper standard itself in its conclusion and reflected that burden 

in its analysis”); and infra at 18 (“[t]he analysis that followed that recitation of the improper standard by the state court reflected that the court in 

fact imposed that elevated burden, as illustrated by each of the state 

court’s points that followed”). In making that determination, the standard 

actually articulated – particularly in the analysis portion of the state 

court’s opinion – is, of course, instructive and therefore properly examined. Our problem with the state court’s decision is that the analysis reflected the improper standard articulated by the state court. 
16 No. 21-1169 

2015) (The question under Strickland is whether the omitted 

testimony would have been “sufficient to raise a reasonable 

doubt and therefore show prejudice.”). Thus, a defendant 

need not prove his actual innocence, but need only establish 

reasonable doubt in the mind of at least one juror in order to 

change the outcome of the trial. The Indiana appellate court 

in its opinion never set forth that proper understanding of the 

requirement, however, and imposed a much more severe burden. As to that issue, the court held that:

[a]lthough Dr. Sozio’s testimony may have been 

helpful to the defense’s theory of the case, when 

viewed in conjunction with the totality of the 

evidence at trial, his testimony is not so compelling that there is a reasonable probability that 

had it been offered the jury would have concluded 

that Torres’s injuries were solely the result of a fall. 

[emphasis added] Ind. App. Mem. Decision at 17. 

Therefore, in order to meet the requirement of showing a 

reasonable probability that “the outcome would have been 

different,” the court required Dunn to establish that a jury 

would have concluded that the fall was the sole cause of the 

injuries—and thus that Dunn was innocent. In order to 

demonstrate a reasonable probability that evidence would 

have changed the outcome, however, a defendant need not 

convince jurors of his version of events; the defendant must 

merely create a reasonable doubt as to whether the government has established its version. That is not a mere semantic 

difference. It is fundamental that the defendant does not bear 

the burden of proof to demonstrate his innocence. Here, Dunn

needed only to create doubt as to how the injuries were sustained. If the evidence was sufficient to raise a reasonable 
No. 21-1169 17

doubt in the mind of one juror as to how the injuries could 

have been sustained, that is sufficient to change the outcome. 

The state court, however, required Dunn to demonstrate a 

reasonable probability that “the jury” presented with that evidence would have concluded the injuries were “solely the result of a fall.” That burden is more analogous to the stricter 

one applied in cases requiring a showing of actual innocence, 

in which, in contrast to the Strickland prejudice inquiry, the 

petitioner “must show that it is more likely than not that no 

reasonable juror would have convicted him in light of the new 

evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995). That shifting of the burden is incompatible with the proper Strickland

standard of establishing prejudice, and with the countless 

cases recognizing that the defendant need only demonstrate 

a reasonable probability that at least one juror will have reasonable doubt as to the state’s case.

To be clear, the problem here is not that the language referred to “the jury” rather than “one juror.” The dissent focuses on that, arguing that we are unreasonably demanding 

specific language of courts when we ourselves fail to meet 

that standard. That, however, misses the point. The problem 

here is the burden imposed by the court in the determination 

as to whether the outcome would be different. The court required Dunn to demonstrate a reasonable probability that the 

jury would conclude the injuries were solely the result of the fall.

That is much more than inquiring as to whether Dunn has 

created a “reasonable doubt;” it requires Dunn to establish a 

reasonable probability that the jury would have concluded 

that his version of the facts is true, not that the state failed to 

make its case or that the jury would be unable to discern 

which version was true. The state court’s reference to “the 

jury” rather than “one juror” is reflective of that misplaced 
18 No. 21-1169 

burden. Dunn was essentially required to show actual innocence, a standard inapplicable to this context, but one that 

would focus on the impact on the jury rather than one juror 

(and therefore that improper language is merely reflective of 

the improper burden). 

The analysis that followed that recitation of the improper 

standard by the state court reflected that the court in fact imposed that elevated burden, as illustrated by each of the state 

court’s points that followed: 

First, Dr. Sozio’s testimony is not as definitive 

as Dunn suggests. Notably, Dr. Sozio did not 

conclusively identify the manner of Torres’s 

death as an accident. ... In addition, while Dr. 

Sozio’s testimony would have provided some 

support for Sim’s and Willie’s testimony, his 

testimony was not definitive and their 

testimony suffered credibility issues. ... Finally, 

there were facts that supported the State’s 

common-sense argument that Torres’s injuries 

could not have been caused merely from the 

fall. ... Based on this record, we cannot say that 

the evidence as a whole leads unerringly and 

unmistakably to the conclusion that the 

evidence produced from consulting with a 

forensic pathologist would have changed the 

outcome of Dunn’s trial.

Ind. App. Mem. Decision at 17–19. 

The language used in applying the standard reflects the 

improper burden imposed by the state court. The court did 

not determine that the omitted expert testimony would not 
No. 21-1169 19

have been relevant, or was cumulative, or even that the state’s 

evidence was overwhelming regardless of that potential expert testimony. Those would have been proper considerations 

in assessing Strickland prejudice. The court instead discussed 

whether Dunn’s evidence was “definitive” or ”conclusive” 

and rejected it because although it provided “some support” 

it is not “conclusive” and there were facts “supporting the 

State’s common-sense argument.” That would be the proper 

analysis if Dunn had the burden of establishing that a jury 

would have found the injuries were caused solely by a fall. 

That was not his burden in establishing prejudice under 

Strickland. Reasonable doubt can be established with less than

“definitive” or “conclusive” evidence; it requires only evidence that could create reasonable doubt—here doubt as to 

the actual cause of the injury. 

The dissent agrees that it was “not Dunn’s burden to 

prove his actual innocence through an alternative theory for 

Torres’s death” such that the injuries were solely the result of 

a fall. Dissent at 9. But it dismisses that problem by arguing 

that “there were really only two possible causes of Torres’s 

death,” that Torres died from the fall or Dunn killed him, and 

that “[i]f there was no reasonable probability that Dr. Sozio’s 

testimony could convince a juror that Torres’s injuries ‘were 

solely the result of a fall,’ then it had no likelihood of affecting 

the trial’s outcome.” Id. That argument fails to recognize the 

obvious third option—which frankly given the evidence in 

this case is the most likely one—that the jury could conclude 

that the evidence as to the cause of death is inconclusive and 

is not convincing enough to establish beyond a reasonable 

doubt that Torres’s death was the result of a beating as opposed to the fall. Equipoise is sufficient. In fact, a reasonable 

probability of doubt in the mind of just one juror is sufficient. 
20 No. 21-1169 

The state court’s opinion reflects an improper understanding 

of the prejudice inquiry under Strickland, and the imposition 

of a burden more onerous than that required by Strickland. Because the state court imposed a burden contrary to law, its 

decision is not entitled to deference under the AEDPA, and 

we consider the Strickland challenge de novo. 

For completeness, we note that even absent this holding, 

AEDPA deference would have applied only as to the issue of 

prejudice under Strickland. Because the state court limited its 

holding to the prejudice prong and did not address deficient 

performance, AEDPA deference would have been inapplicable as to that issue even absent the above analysis. See e.g.,

Dunn v. Jess, 981 F.3d 582, 591 (7th Cir. 2020) (“AEDPA deference only applies to issues that the last reasoned state court 

decision reached on the merits.”). 

IV.

Turning to the claim on its merits, we agree with the district court that Dunn has sufficiently demonstrated ineffective 

assistance of counsel. A petitioner claiming ineffective assistance of trial counsel under Strickland must demonstrate: 

(1) that trial counsel provided constitutionally-deficient performance, “meaning counsel made errors so serious he ‘was 

not functioning as the “counsel” guaranteed the defendant by 

the Sixth Amendment;’” and (2) that the deficient performance prejudiced his defense, “meaning there is a ‘reasonable 

probability that, but for counsel’s unprofessional errors, the 

result of the proceeding would have been different.’” Winfield 
No. 21-1169 21

v. Dorethy, 956 F.3d 442, 451–52 (7th Cir. 2020), quoting Strickland, 466 U.S. at 687, 694. 

In order to succeed on a claim of deficient performance, 

Dunn must demonstrate that his counsel’s representation fell 

below an objective standard of reasonableness. Strickland, 466 

U.S. at 688. In making that assessment, “the court should keep 

in mind that counsel’s function, as elaborated in prevailing 

professional norms, is to make the adversarial testing process 

work in the particular case.” Strickland, 466 U.S. at 690. In determining whether a counsel’s challenged conduct is the result of reasonable professional judgment, our scrutiny is 

highly deferential, cognizant of the distorting effects of hindsight. Id. at 689. We therefore employ a presumption that the 

challenged conduct might be considered sound trial strategy. 

Id. A decision not to investigate and present expert testimony 

as a matter of trial tactics can fall within the range of reasonable performance. Rogers v. Israel, 746 F.2d 1288, 1294 (7th Cir. 

1984). “But for this deference to apply, the decision must be—

in fact—strategic,” and “’consequences of inattention rather 

than reasoned strategic decisions are not entitled to the presumption of reasonableness.’” Dunn, 981 F.3d at 591, quoting 

Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012). As the 

Court recognized in Strickland, “counsel has a duty to make 

reasonable investigations or to make a reasonable decision 

that makes particular investigations unnecessary,” and accordingly, “[i]n any ineffectiveness case, a particular decision 

not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of 

deference to counsel’s judgments.” Strickland, 466 U.S. at 691. 

As in Dunn (a case only coincidentally bearing the same 

name as the petitioner), the failure to investigate here was 
22 No. 21-1169 

attributable to inattention rather than a reasoned strategic 

judgment. In fact, Dunn’s defense counsel in this case 

acknowledged that his failure to investigate by consulting a 

forensic pathologist was an oversight and not a strategic decision. According to his defense counsel, the failure to pursue 

that avenue was a product of his narrow focus on the bat as 

the putative weapon in the case. The critical issue in this case 

was whether Torres’s death was caused by the fall or whether 

it was caused by being bludgeoned. The evidence regarding 

the bat—which was the focus of the defense here—is relevant 

to the criminal case, because the elimination of the bat as a 

weapon used to beat Torres made the prosecutor’s case more 

difficult given that no other weapon had been found. But the 

pivotal issue in the criminal case was the cause of death, not 

what weapon was used—specifically, whether Torres died 

from being bludgeoned after the fall as the state contends or 

whether his injuries could be attributed to the fall itself as the 

defense argues. The entire case turns on proving there was no 

post-fall beating. Evidence that the bat was not used to beat 

Torres would further the defense claim if the jury had reason 

to believe that the fall alone could have caused the injuries, 

because the absence of Torres’s blood on the barrel of the bat 

would support that argument. But absent evidence that the 

injuries were consistent with a fall, and with the state introducing evidence that a fall could not have caused the injuries 

and that the injuries were attributable to a beating, the evidence regarding the bat is less significant and certainly insufficient to refute the core issue as to the cause of death. Dunn’s 

defense counsel did not consult with any forensic pathologist 

to establish the manner of death, nor did he even investigate 

that critical issue such as by deposing the state’s expert witnesses.
No. 21-1169 23

In both Dunn and Rogers, we faced analogous facts in 

which the pivotal issue was the timing of the fatal injuries, for 

which the testimony of a forensic pathologist would be critical. Dunn, 981 F.3d at 595; Rogers, 746 F.2d at 1293. In those 

cases, we held that the failure to pursue the expert testimony 

constituted deficient performance. For instance, in Dunn, the 

defendant had slapped the victim causing him to fall, but the 

victim was able to walk away following the incident and was 

found dead only later with evidence of a skull fracture and 

significant bleeding. The critical issue for the defense was 

whether the injuries apparent in the autopsy would have 

caused immediate death, therefore negating the incident with 

the defendant as the cause of death. Dunn, 981 F.3d at 595. His 

counsel failed to explore evidence from experts that would 

have countered the opinion of the medical examiner. That expert testimony from a forensic pathologist would have established that the victim was never upright—and thus could not 

have walked away—after sustaining the injuries that proved 

fatal, and therefore would have established that the incident 

with the defendant was not the cause of the death. Id. at 591. 

In Dunn, the defense counsel’s performance was deemed deficient because the failure to investigate resulted from inattention rather than strategic judgment, and the defense approach 

to focus on the nature of the injuries lent some support to the 

argument that the defendant did not cause the death, but was 

not nearly as strong as evidence that could have been supplied by an expert as to the timing of the death. See also Rogers, 

746 F.2d at 1293–94 (holding that where the critical issue at 

trial was whether the injury to the victim would have caused 

his immediate incapacitation, there was a reasonable probability that even expert testimony not phrased in unconditional 
24 No. 21-1169 

terms, if presented by defense counsel, could have caused the 

jury to have reasonable doubt respecting guilt). 

The same reasoning that controlled in Dunn and Rogers applies here. Dunn’s defense counsel conceded that the decision 

not to consult with a forensic pathologist was not a strategic 

decision, and that he was focused on whether the bat was 

used to beat Torres and that impaired his judgment. As in 

Dunn and Rogers, defense counsel here failed to focus on the 

critical argument, in that counsel failed to investigate and present evidence as to the cause of death. Only forensic evidence 

would have tended to rule out bludgeoning (whether by the 

bat or some other object) as a cause of death. And that, more 

critical, argument was not made because Dunn’s defense 

counsel did not investigate to obtain evidence related to the 

cause of death, including consulting with a forensic 

pathologist, even after becoming aware that the state was producing its own expert on the issue. See Dunn, 981 F.3d at 594 

(“’Even if defense counsel could have initially believed expert 

testimony unnecessary,’ finding out the medical examiner 

was going to testify that [the victim] did not die immediately 

should ‘have alerted any reasonable attorney to the need to 

rebut with a defense expert.’”), quoting Woolley v. Rednour, 

702 F.3d 411, 423 (7th Cir. 2012). Because defense counsel, due 

to inattention rather than any strategic purpose, failed to investigate the defense as to the dispositive issue at trial regarding the cause of death, Dunn has demonstrated deficient performance under Strickland. 

That brings us to the second prong of Strickland, that of 

demonstrating prejudice. In order to demonstrate prejudice, 

Dunn must show that “there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the 
No. 21-1169 25

proceeding would have been different.” Strickland, 466 U.S. at 

693–94. As we have stated, a reasonable probability is probability sufficient to undermine confidence in the outcome—

that is, a reasonable probability that, absent the errors, at least 

one factfinder would have had a reasonable doubt respecting 

guilt. Buck, 137 S. Ct. at 776; Strickland, 466 U.S. at 695; Thomas, 

789 F.3d at 773. 

Here, no one testified that they observed Dunn hit Torres 

after the fall. The only evidence of a beating post-fall is the 

expert testimony. The state’s argument from the outset was 

that the testimony of the eyewitnesses was not believable and 

that the jury should believe the scientific evidence. For instance, pursuant to Indiana rules the parties were allowed to 

make opening arguments of three minutes or less to the entire 

jury venire before jury selection. The state argued:

You will hear medical evidence that suggests 

that Angel Torres was severely beaten and that 

this was not the result of a simple fall down the 

stairs as the defendant reported to the police. 

The question for you will become: What do you 

believe? Do you believe the medical, scientific, 

and forensic evidence; or do you believe people 

who perhaps have reasons not to be forthcoming with you as they should be?

Trial Tr. 27. That strategy remained unchanged throughout 

the trial, and at closing argument the state denied reliance on 

the bat as the instrument used, but again argued:

If Jamar, Willie Sims, is really and truly telling 

you the truth, then every bit of science, every bit 

of gravity, every bit of physics you have to 
26 No. 21-1169 

disbelieve. ... People lie. It happens. And, you 

know, we can use terms like you don’t find 

swans in a sewer. This are where they’re living, 

the lifestyle they’re living, we can’t pick our witnesses. ... But you have to compare what you 

learned from Letha and Jamar with what you 

learned from Sergeant Dean Marks and Dr. 

Wagner, and then you have to determine what 

makes more sense.

Trial Tr. 1013, 1018. 

If defense counsel had presented the testimony of Dr. 

Sozio, then the jury would have been presented with conflicting expert testimony regarding whether the fall alone caused 

the injuries. The blood evidence already effectively ruled out 

any argument that the bat was used to beat Torres, and the 

state conceded as much by arguing at closing that a different, 

unidentified weapon was probably used. But the timeline 

makes that a difficult argument, because the police arrived 

within eight minutes of the 911 call, and that call appears to 

have been made during the initial argument between Sims 

and Dunn, which was followed by the argument with Torres, 

the retreat back into the apartments, the return by Dunn to 

Torres’s apartment, and the argument on the balcony in 

which Torres was hitting Dunn with the bat and then fell 

down the stairs and over the railing to the ground. Under the 

state’s theory, in that time Dunn would have had to also hide 

the weapon, and no such weapon was ever found. And the 

two eyewitnesses testified consistently at the scene and at trial 

that Torres was not beaten after the fall. 

When that evidence is then combined with the expert testimony confirming that the injuries were consistent with a 
No. 21-1169 27

fall, there is certainly a reasonable probability that the jury 

would have some doubt as to whether Torres was in fact 

beaten after the fall by Dunn. The state argues that the blood 

spatter evidence was uncontradicted and that Dr. Sozio’s 

opinion, which refuted those blood spatter conclusions, 

would not be admissible. But even setting aside Dr. Sozio’s 

contrary opinion regarding that evidence, the state’s blood 

spatter argument would be heard in the context of the blood 

evidence tied to Dunn. Blood from Torres was found on 

Dunn’s shoe, as would be expected given the testimony that 

he ran down to Torres after the fall and pulled on him imploring him to get up. But as the district court noted, the evidence 

did not reveal any blood on Dunn’s shorts that could be identified as Torres’s blood. If, as the state argues, the weapon was 

so saturated by blood that it caused the blood spatter when 

swung, the absence of evidence of blood spatter tied to Torres 

on Dunn’s clothes diminishes the argument that he wielded 

such a weapon. The testimony by Dr. Sozio was critical in this 

case to creating reasonable doubt, because it countered the 

scientific evidence by the state and gave the jury reason to 

doubt that Torres was beaten and to believe the testimony of 

the defense witnesses that Torres’s injuries resulted from a 

fall. With that evidence, there is a reasonable probability that 

the jury would have reasonable doubt as to Dunn’s guilt, and 

therefore Dunn has demonstrated prejudice under Strickland. 

See Strickland, 466 U.S. at 695–96 (“a verdict or conclusion only 

weakly supported by the record is more likely to have been 

affected by errors than one with overwhelming record support”); Thomas v. Clements, 789 F.3d 760, 772 (7th Cir. 2015) 

(holding that the failure to present affirmative expert testimony that the autopsy results were not inconsistent with the 

defendant’s statement constituted prejudice). 
28 No. 21-1169 

V.

Accordingly, the decision of the district court granting the 

petition for a writ of habeas corpus is AFFIRMED.
No. 21-1169 29 

KIRSCH, Circuit Judge, dissenting. A federal court may disturb a final state-court conviction in only a few, narrow circumstances. In the majority’s view, one such circumstance applies because the Indiana Court of Appeals’ decision was 

“contrary to” the Supreme Court’s decision in Strickland v. 

Washington, 466 U.S. 668 (1984). Because the Indiana Court of 

Appeals reasonably applied Strickland’s prejudice prong, I 

disagree with that conclusion and respectfully dissent.

“[T]he writ of habeas corpus is an extraordinary remedy 

that guards only against extreme malfunctions in the state 

criminal justice systems.” Shinn v. Ramirez, 142 S. Ct. 1718, 

1731 (2022) (citation omitted). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “imposes several 

limits on habeas relief” to ensure that the writ retains this circumscribed role. Id. The relevant AEDPA limit here reads:

An application for a writ of habeas corpus on 

behalf of a person in custody pursuant to the 

judgment of a State court shall not be granted 

with respect to any claim that was adjudicated 

on the merits in State court proceedings unless 

the adjudication of the claim ... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme 

Court of the United States[.] 

28 U.S.C. § 2254(d)(1). “A state court’s decision is ‘contrary to’ 

clearly established federal law where it is ‘substantially different from the relevant precedent’ of the Supreme Court.” 

Mosley v. Atchison, 689 F.3d 838, 844 (7th Cir. 2012) (quoting 

Williams v. Taylor, 529 U.S. 362, 405 (2000)). Put another way,

a state-court decision contradicts Supreme Court precedent 
30 No. 21-1169 

“if the state court arrives at a conclusion opposite to” that of 

the Supreme Court on a question of law or “if the state court 

confronts facts that are materially indistinguishable from a 

relevant Supreme Court precedent and arrives at a result opposite to [the Court’s].” Williams, 529 U.S. at 405. “AEDPA’s 

requirements reflect a presumption that state courts know 

and follow the law.” Woods v. Donald, 575 U.S. 312, 316 (2015) 

(per curiam) (citation omitted). And “[a] state court’s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court’s decision.” Harrington v. Richter, 562 

U.S. 86, 101 (2011) (citation omitted). 

The majority thinks this demanding standard has been 

met because the Indiana Court of Appeals “mischaracterize[d] the standard” set out in Strickland v. Washington, which 

protects a criminal defendant’s Sixth Amendment right to 

competent representation. Yet the majority’s focus is misplaced. Because a “state court need not cite or even be aware 

of [Supreme Court] cases under § 2254(d),” the properinquiry

focuses not on how the state court characterizes a relevant Supreme Court precedent but on how it actually applies the governing law. Harrington, 562 U.S. at 98; Olvera v. Gomez, 2 F.4th 

659, 671 (7th Cir. 2021) (“Absent circumstances that would 

raise a grave concern that the state court actually applied a contrary standard,” we will not “override the benefit of the doubt 

that § 2254 provides to the state court’s decision.”) (emphasis 

added).

But even on the majority’s own terms, the Indiana Court 

of Appeals correctly characterized Strickland. To establish a 

violation under Strickland, a prisoner must show “a reasonable probability” that, “but for counsel’s unprofessional errors, 
No. 21-1169 31 

the result of the proceeding would have been different.” 466 

U.S. at 694. Strickland has been the law for nearly 40 years, and 

it’s evident that the Indiana appellate judges deciding Dunn’s 

petition in October 2017 (who had a combined seven decades 

of judicial experience, Judge Crone (since 2004), Judge Vaidik 

(since 1992), and Judge Mathias (since 1989)) correctly understood and recited Strickland’s prejudice prong. See Sussman v. 

Jenkins, 636 F.3d 329, 359–60 (7th Cir. 2011) (looking to 

whether it was “clear from the [state] court’s analysis that it 

did not believe that the [proffered evidence] had a reasonable 

probability of altering the jury’s verdict”). Indeed, the court

stated the standard correctly at least four times in its decision 

denying Dunn post-conviction relief. See Indiana App. Mem. 

Decision at 14 (“To establish prejudice, the petitioner must 

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would 

have been different.”); id. at 15 (framing issue as “whether, 

but for counsel’s unprofessional conduct, there was a reasonable probability that a different verdict would have been 

reached”); id. at 16 (“[S]uccess on the prejudice prong of an 

ineffectiveness claim requires a showing of a reasonable probability of affecting the result.”) (citation omitted); id. (describing issue as “whether the evidence produced from consultation with a forensic pathologist would have had a reasonable 

probability of affecting the outcome of Dunn’s trial”). 

Dismissing these four accurate statements of the standard

as “boilerplate,” the majority concludes that the Indiana 

Court of Appeals improperly characterized Strickland’s prejudice prong. It starts by inferring that the Indiana Court of Appeals adopted the lower court’s reasoning by quoting the 

court’s order in the “Case Summary” section of its opinion 

(the Court of Appeals’ “Discussion and Decision” came later). 
32 No. 21-1169 

But we do not ordinarily treat a court’s recitation of a case’s 

background and procedural history as illuminating. In the 

majority’s view, the Indiana Court of Appeals needed to affirmatively “t[ake] issue” with the quoted language of the order under its review. Yet we often refine the legal analysis of 

orders we affirm without correcting all potentially problematic reasoning contained within those orders. I hesitate to 

think how many of our own opinions would fail to pass muster if the Supreme Court required us to expressly disavow all 

improper lower court reasoning before affirming a judgment. 

In any event, the majority’s inference contradicts our duties 

to “‘presum[e] that state courts know and follow the law’ and 

[to] give their articulation of that standard ‘the benefit of the 

doubt.’” Olvera, 2 F.4th at 670 (quoting Woodford v. Visciotti, 

537 U.S. 19, 24 (2002) (per curiam)).

The majority next implies that the Indiana Court of Appeals erred by reciting the applicable standard of review for 

post-conviction appeals in Indiana in its Strickland analysis. 

As described by the Indiana Supreme Court, post-conviction 

petitions on appeal “must convince the court that the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” 

Wesley v. State, 788 N.E.2d 1247, 1250 (Ind. 2003). Contrary to 

the majority’s implicit suggestion, then, this “unerring and 

unmistaken” appellate standard had nothing to do with the 

Indiana Court of Appeals’ understanding of Strickland. Instead, it involved Indiana’s procedural division between appellate and trial court functions, a division we are bound to 

respect on habeas review. See Trevino v. Thaler, 569 U.S. 413, 

421 (2013) (noting “the importance of federal habeas corpus 

principles designed to prevent federal courts from interfering 
No. 21-1169 33 

with a State’s application of its own firmly established, consistently followed, constitutionally proper procedural rules”).

After the smoke from these irrelevant explanations dissipates, the majority’s issue with the Indiana Court of Appeals’ 

framing of the Strickland standard largely comes down to one 

sentence in the Court of Appeals’ concluding paragraph: 

Based on this record, we cannot say that the evidence as a whole leads unerringly and unmistakably to the conclusion that the evidence produced from consulting with a forensic 

pathologist would have changed the outcome of 

Dunn’s trial. 

Of course, I agree with the majority that, standing alone, this 

sentence does not accurately state the Strickland standard. But 

when viewed as a whole and in context, this single misstatement does not make the decision “contrary to” Strickland. The 

Indiana Court of Appeals’ opening paragraph is nearly identical to its conclusion, with the six-word difference underlined 

as follows: 

Based on the record before us, we cannot say 

that the evidence as a whole leads unerringly 

and unmistakably to the conclusion that there is 

a reasonable probability that the evidence produced from consulting with a forensic 

pathologist would have changed the outcome of 

Dunn’s trial.

If the Indiana Court of Appeals had repeated these six 

words in its conclusion, we would not be here. And as the 

majority recognizes, we have repeatedly held that a state 

court’s use of incomplete or incorrect shorthand of the 
34 No. 21-1169 

Strickland standard in a conclusion does not make its decision 

“contrary to” Strickland, so long as the rest of the analysis applies the correct standard. See, e.g., Olvera, 2 F.4th at 670

(holding that state appellate court’s statement that “we cannot find this new evidence would have resulted in an acquittal” was not contrary to Strickland); Gage v. Richardson, 978 

F.3d 522, 528 (7th Cir. 2020) (“When a state court misstates 

Strickland’s prejudice prong, AEDPA deference may still apply if its analysis focused on whether the proffered testimony 

could have affected the outcome,” “even when the incorrect 

recitation seemingly places an additional burden on the petitioner.”) (citation omitted); Fayemi v. Ruskin, 966 F.3d 591, 594 

(7th Cir. 2020) (state court’s use of the phrase “would likely 

have been different” twice was not contrary to Strickland); 

Sussman, 636 F.3d at 359–60 (holding that a state court’s omission of the “reasonable probability” language when defining 

prejudice was not contrary to Strickland); Woods v. Schwartz, 

589 F.3d 368, 378 n.3 (7th Cir. 2009) (“We have noted numerous times that there is no error when a court has correctly 

noted the Strickland standard and then used an incorrect 

shorthand version when stating its conclusion.”); Malone v. 

Walls, 538 F.3d 744, 758 (7th Cir. 2008) (state court’s statement 

of prejudice standard as “the outcome of the trial would have 

been different” was not contrary to Strickland); Stanley v. Bartley, 465 F.3d 810, 813 (7th Cir. 2006) (omission of “reasonable 

probability” language was not contrary to Strickland). As in 

these on-point precedents, the Indiana Court of Appeals’ misstated sentence is merely that: a misstatement.

Even if I’m correct on this point, the majority still thinks 

the Indiana Court of Appeals mischaracterized Strickland’s 

prejudice prong. In the majority’s view, the decision needed 

to “set forth th[e] proper understanding” that prejudice 
No. 21-1169 35 

requires only that there be a reasonable probability that at 

least one juror—and not “the jury,” as in the entire jury—

would possess a reasonable doubt had counsel performed effectively. Although this articulation is no doubt correct, appellate courts don’t need to include that language in every 

Strickland case to avoid contradicting the Supreme Court’s decision (after all, Strickland itself did not employ that language). 

Indeed, the Supreme Court is often not that explicit, see, e.g., 

Andrus v. Texas, 140 S. Ct. 1875, 1885–86 (2020) (per curiam) 

(“Here, prejudice exists if there is a reasonable probability 

that, but for his counsel’s ineffectiveness, the jury would have 

made a different judgment about whether Andrus deserved 

the death penalty as opposed to a lesser sentence.”) (emphasis 

added), and neither are we, see, e.g., Shannon v. United States, 

--- F.4th ----, 2022 WL 2681410, at *9 (7th Cir. July 12, 2022) 

(Hamilton, J.) (“Considering all the other evidence against 

Shannon, however, we find it highly unlikely that removing 

A.W.’s testimony from the equation—assuming that had been 

a reasonable probability—would have given the jury reasonable doubt about Shannon’s guilt.”) (emphasis added). We 

shouldn’t hold the Indiana Court of Appeals to a higher 

standard on habeas review than we hold ourselves.

But even if the majority is right that the Indiana Court of 

Appeals could have described Strickland’s prejudice prong

more sharply, we would still need to find that it actually “applied a different standard” to avoid AEDPA deference. Stanley, 465 F.3d at 813. Given the general nature of the Strickland 

standard, “the range of reasonable applications is substantial,” Harrington, 562 U.S. at 105, and state courts have considerable “leeway ... in reaching outcomes in case-by-case determinations,” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citation omitted). And here the Indiana Court of Appeals
36 No. 21-1169 

reasonably applied Strickland by carefully assessing Dr. 

Sozio’s testimony against the trial evidence before explaining 

that Dunn had not shown a reasonable probability of a different outcome based on the new testimony. First, the court did 

not see Dr. Sozio’s testimony as persuasive because he: (1) did 

not “identify the manner of Torres’s death as an accident” 

since he testified that the manner of death was “best” viewed 

as “undetermined”; (2) agreed that Torres (as a chronic alcoholic) could have functioned quite well at a high blood alcohol level, which undercut his suggestion that Torres’s alcohol 

influence caused him to fall; (3) only opined that it was 

“highly unlikely” that Torres’s rib injuries—and not all of his 

injuries (including those to the head)—were caused by a 

blunt-object strike; (4) admitted he was not a blood spatter expert; and (5) admitted that Torres’s scalp laceration was on an 

area of the head more indicative of an assault. The Indiana 

Court of Appeals also explained the strength of the State’s 

trial evidence, including: (1) the State’s forensic pathologist’s 

detailed testimony and conclusive opinion that the manner of 

death was homicide and that the injuries could not have been 

caused by a fall; (2) the State’s blood spatter expert’s “compelling” testimony that the blood spatter was not from a fall and 

that a swung or thrown object likely caused the cast-off blood 

spatter; and (3) the relatively low height of the balcony from 

which Torres allegedly fell weighed against the severity of his 

injuries. Last, the court considered the weaknesses in Dunn’s 

defense, finding that his two witnesses, Sims and Willie, both 

suffered from credibility issues because: (1) part of their testimony differed from other witnesses near the time of Torres’s 

injuries; (2) Sims’ testimony about doing cocaine with Torres 

did not match Torres’s toxicology report; and (3) Sims 
No. 21-1169 37 

admitted that she had lied to a detective about whether Dunn 

had kicked Torres at the bottom of the stairs.

Despite these detailed factual explanations, the majority 

thinks the Indiana Court of Appeals improperly applied 

Strickland in the following sentence:

Although Dr. Sozio’s testimony may have been 

helpful to the defense’s theory of the case, when 

viewed in conjunction with the totality of the 

evidence at trial, his testimony is not so compelling that there is a reasonable probability that 

had it been offered the jury would have concluded that Torres’s injuries were solely the result of a fall.

The majority points out that it was not Dunn’s burden to 

prove his actual innocence through an alternative theory for 

Torres’s death (that his injuries were solely caused by a fall 

down the stairs). That’s true as far as it goes, but Dunn still 

had the burden to show a reasonable probability of a different 

trial outcome absent his counsel’s allegedly ineffective performance. See Strickland, 466 U.S. at 694. Dunn sought to use Dr. 

Sozio’s testimony to undermine the prosecution’s theory that 

Dunn savagely beat Torres with an unidentified object. Given 

the record here, there were really only two possible causes of 

Torres’s death: either he died from a fall down the stairs or 

Dunn killed him. If there was no reasonable probability that 

Dr. Sozio’s testimony could convince a juror that Torres’s injuries “were solely the result of a fall,” then it had no likelihood of affecting the trial’s outcome.

And the Indiana Court of Appeals offered multiple reasons for why Dr. Sozio’s testimony could not have persuaded
38 No. 21-1169 

a reasonable juror of that possibility. Consider the blood spatter expert’s testimony. Even if Dr. Sozio had testified at trial, 

the jury still would have heard uncontradicted expert testimony about multiple areas of blood spatter found on the 

building’s walls, on Torres’s shoulder, on the pavement, on 

the stair steps, on the stair railings, and on a nearby car’s 

doors. In particular, the jury would have still heard that the 

“impact” blood spatter found at the wall near the bottom of 

the stairs took a “good amount of energy ... applied to the 

blood source” to create and did not result from a fall or someone walking or stomping through the pooled blood on the 

pavement. The jury also would have still heard that the “castoff blood staining” found on the concrete between the stairs 

and the car was likely caused by a swung or thrown bloody 

instrument. And the jury would have still heard the blood 

spatter expert’s testimony that an “event” occurred at the bottom of the stairs that led to the spatter. This uncontradicted 

evidence matches the jury’s finding that Dunn killed Torres 

with a blunt object and critically undermines Dunn’s theory 

that a fall caused Torres’s death. Indeed, even Dunn’s trial 

counsel admitted that a reasonable person would be “impressed” by this blood spatter testimony. Yet Dr. Sozio’s testimony failed to counter this evidence. Indeed, Dr. Sozio admitted that he was not a blood spatter or bloodstain expert, 

and Dunn offered nothing else in his post-conviction evidentiary hearing to rebut the State’s blood spatter expert. So we 

must presume that no such evidence exists. Cf. Shinn, 142 S. 

Ct. at 1739. The Indiana Court of Appeals had overwhelming 

support for its conclusion that Dr. Sozio’s testimony had no 

reasonable probability of changing the outcome of Dunn’s 

trial. See Harrington, 562 U.S. at 112 (“The likelihood of a different result must be substantial, not just conceivable.”). The
No. 21-1169 39 

Indiana Court of Appeals thus did not stray from Strickland’s 

requirements. As a result, we lack power to disturb its holding.

Although this may have been a close case for the Indiana 

Court of Appeals, deciding whether the court came out on the 

“right” side is not our call to make so long as its explanations 

were reasonable. See Schriro v. Landrigan, 550 U.S. 465, 473 

(2007) (“The question under AEDPA is not whether a federal 

court believes the state court’s determination was incorrect 

but whether that determination was unreasonable—a substantially higher threshold.”). Congress has set a high hurdle 

in requiring us to find a state court’s decision “contrary to” a 

clearly established Supreme Court precedent before we may 

grant habeas relief. And we can’t clear that hurdle here. In 

holding that the decision reached by the Indiana Court of Appeals was “contrary to” Strickland, the majority fixates on one 

shorthand statement and misconstrues several others all 

while ignoring the court’s detailed application of Strickland to 

the facts. Only by doing so can the majority review the Strickland issue de novo to reach a different result from the Indiana 

Court of Appeals. Yet this path flouts the “unwavering respect” we must afford to state court adjudications of guilt. See 

Shinn, 142 S. Ct. at 1739. And it shirks our duty to give effect 

to AEDPA’s statutory commands. See id. at 1736 (“Where 

Congress has erected a constitutionally valid barrier to habeas 

relief, a court cannot decline to give it effect.”) (citation omitted). Because the Indiana Court of Appeals’ proper application of Strickland leaves us no room to bypass AEDPA’s required deference, I respectfully dissent.