### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 2214

T EREZ C OOK

,

Petitioner

‐ Appellant

,

v.

B RIAN F OSTER

, Warden,

Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 13

‐ CV

‐ 989

— Nancy Joseph

, Magistrate Judge

.

____________________

A RGUED O CTOBER 3, 2019

— D ECIDED J ANUARY 29, 2020

____________________

Before W OOD

, Chief Judge

, and B ARRETT and S CUDDER

,

Circuit Judges

.

W OOD

, Chief Judge

. Federal courts do not lightly grant pe

‐

titions for a writ of habeas corpus brought by state prisoners.

As the Supreme Court put it in Harrington v. Richter

, 562 U.S.

86 (2011), if the “standard [for relief] is di ffi cult to meet, that

is because it was meant to be.” Id. at 102. Nonetheless, “di ffi‐

cult” does not mean “impossible,” as the Court rea ffi rmed in

Richter : “The writ of habeas corpus stands as a safeguard2 No. 18

‐ 2214

against imprisonment of those held in violation of the law.”

Id. at 91. Our task in the present case is to decide whether

petitioner Terez Cook demonstrated that Wisconsin’s court

of appeals unreasonably assessed his contention that he did

not receive the e ff ective assistance of counsel guaranteed by

the Sixth Amendment. See Strickland v. Washington, 466 U.S.

668 (1984). The district court thought that Cook’s showing

fell short, but we conclude that he is entitled to relief. We

therefore reverse.

I

Cook’s criminal case arose out of a home invasion that

took place in Peshtigo, Wisconsin, in May 2005. The state

charged Cook and another man, John Egerson, with armed

robbery, armed burglary, false imprisonment, ba tt ery, theft,

and mistreatment of an animal causing death. The jury con

‐

victed Cook on all counts, as a party to the crimes and as a

repeat o ff ender. Throughout these proceedings Cook’s basic

contention has been that the state identi fi ed the wrong man

as Egerson’s accomplice.

We begin with an overview of the trial, to provide a

framework for the particular ways in which Cook contends

that he received constitutionally ine ff ective assistance of

counsel. We then address each error individually, and fi nally

we consider whether, taken as a whole, they add up to a

Sixth Amendment violation.

First, we provide the cast of key characters:

 Terez Cook: defendant accused of the home

‐

invasion crimes; possibly the same person as “BN”

or “Rex”No. 18

‐ 2214 3

 John Egerson: co

‐ defendant, tried separately and

convicted

 Ashley Sadowski: Egerson’s girlfriend and ac

‐ complice to the home

‐ invasion crimes

 Jessica Babic: Sadowski’s friend, and accomplice to

the home

‐ invasion crimes

 David Hall: long

‐ time friend of Egerson, and also

friends with Sadowski, Babic, and an ex

‐ boyfriend

of the victims’ daughter; Cook alleges that Hall,

not he, was Egerson’s accomplice.

 Stacy Thede: Cook’s girlfriend

 Jimmy and Margaret Harper: the victims

The events underlying this case unfolded as follows.

Egerson and Sadowski believed that there was marijuana in

the Harpers’ garage, and they wanted to steal it. Around

midnight on May 22, 2005, Sadowski and Babic met up with

Egerson and Cook. At 2:30 a.m. or so Sadowski, Babic, Eger

‐

son, and another man (Cook or “Rex,” according to the state;

Hall, according to Cook) went to Walmart; there, at Eger

‐

son’s urging, Sadowski and Babic bought gloves, bandanas,

and duct tape. So equipped, Sadowski drove Egerson’s car

past the Harpers’ home; she tapped the brakes when she

reached the front of the house in order to signal to the men,

who were following in Sadowski’s car, which house to tar

‐

get. The women then waited nearby for the men to do the

job.

Around 4:00 a.m., Egerson called Sadowski and told her

that he had crashed her car after stealing cash and speakers

from the Harpers’ home. The women picked up Egerson and4 No. 18

‐ 2214

his companion and drove to a hotel in Green Bay. About six

hours later, Egerson dropped Sadowski and Babic (but not

Cook, it seems, who disappears at that point from the state’s

story) at a gas station in Peshtigo. The women called Hall for

a ride to Babic’s house. There they were greeted by the po

‐

lice, who arrested Hall and took the women into custody for

questioning. After initially denying any involvement in the

crime, Sadowski and Babic admi tt ed their involvement and

named Egerson as one of the robbers.

Pu tt ing together evidence from these interviews, along

with cell tower evidence, the state obtained an information

charging Cook and Egerson with the crimes. They were tried

separately, though by the same judge. In a trial that the pre

‐ siding judge later characterized as unworthy of con fi dence,

the jury convicted Cook and the judge sentenced him to 40

years in prison and 18 years of extended supervision. His

conviction was a ffi rmed on direct appeal in the Wisconsin

courts. At that point Cook (acting pro se ) fi led a petition for

postconviction relief pursuant to Wis. Stat. § 974.06; in it, he

alleged ine ff ective assistance of his trial counsel, Alf Langan,

and his appellate counsel, Milton Childs. The court appoint

‐

ed postconviction counsel for Cook and ultimately held evi

‐ dentiary hearings over the course of three days. It concluded

that Cook’s motion had to be granted because of the cumula

‐

tive e ff ect of trial counsel’s many missteps. In so ruling, the

court stressed the exceptional nature of the case:

You know, I’ve been on the bench 20 years, and I

can’t remember ever granting a new trial because of

ine ff ective assistance of counsel. It may have hap

‐ pened, but I can’t as I sit here today recall. It’s a heavy

decision. I understand that.No. 18

‐ 2214 5

***

I’ve given it a lot of thought. And the bo tt om line

is that the de fi ciencies are so big that I would have to

conclude if it had been tried correctly, that there’s a

probability of a di ff erent result and that con fi dence of

the Court has been shaken as to the results because of

the de fi cient performance.

Doc. 62

‐ 10 at 153–54.

The state appealed from the trial court’s decision, and the

Wisconsin Court of Appeals reversed. Cook then fi led a peti

‐

tion for a writ of habeas corpus under 28 U.S.C. § 2254,

which a magistrate judge, proceeding by consent of the par

‐

ties under 28 U.S.C. § 636(c), denied. Despite its conclusion

that the state appellate court, in resolving some of Cook’s

claims, had unreasonably applied Strickland or unreasonably

determined the facts, the district court thought that there

was enough to squeak by under the deferential standard that

applies to these cases. Because of the disagreement between

the state trial and appellate courts, however, it granted Cook

a certi fi cate of appealability. See 28 U.S.C. § 2253(c).

II

Under the Antiterrorism and E ff ective 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 estab

‐

lished Federal law, as determined by the Supreme Court,” or

was “based on an unreasonable determination of the facts.”

28 U.S.C. § 2254(d). A state court unreasonably applies fed

‐

eral law if it correctly identi fi es the governing Supreme6 No. 18

‐ 2214

Court precedent but unreasonably applies its holding to the

facts of the case. See Lockyer v. Andrade

, 538 U.S. 63, 75 (2003).

A state

‐ court decision involves an unreasonable determina

‐

tion of the facts if the court fi nds that “the factual premise

was incorrect by clear and convincing evidence.” Miller

‐ El v.

Cockrell

, 537 U.S. 322, 340 (2003); see also Brum fi eld v. Cain

,

135 S. Ct. 2269, 2277 (2015) (facts may not be set aside if “rea

‐

sonable minds reviewing the record might disagree about

the fi nding in question”).

With these principles in mind, we turn to the speci fi cs of

Cook’s case. At this stage of the proceedings, with the assis

‐

tance of able recruited counsel, Cook has identi fi ed six re

‐

spects in which Langan rendered ine ff ective assistance of

counsel. He has not raised any argument about the lawyer

who represented him in his direct appeal, and so we have

nothing to say about that. We address each speci fi c conten

‐

tion of defective performance separately. We then turn to the

question of prejudice, which we assess by evaluating the trial

as a whole, not one slip at a time.

III

A

1. Failure to locate and produce Hall at trial

Hall, as we noted, is the person who Cook insists was

Egerson’s accomplice for the robbery. Cook’s theory of de

‐

fense was that he backed out of the robbery at the last mi

‐

nute. He did not contest the fact that he was with Egerson,

Sadowski, and Babic on the morning of the crime. He main

‐

tained, however, that he “decline[d] to go along” with the

break

‐ in, and Hall took his place. Calling Hall the “biggest

hole” in the state’s case, Langan argued that the police failedNo. 18

‐ 2214 7

adequately to investigate his involvement. Despite arresting

Hall with the women the morning after the robbery, o ffi cers

did not test for his DNA on a headwrap and glove found in

Sadowski’s car. They did test for Cook’s DNA but did not get

a match on these items. Cook’s DNA was, however, found

on a cigare tt e in Sadowski’s car. Langan was also able to put

before the jury the following facts: Egerson and Hall had

known each other since childhood; Hall was friends with

Sadowski, Babic, and an ex

‐ boyfriend of the Harpers’ daugh

‐

ter; Hall had stopped by Babic’s house twice on the night of

the robbery; and neither Sadowski nor Babic had told the

police about Hall’s visits. Babic and Sadowski both denied

that Hall was involved in the robbery.

But the jury never saw Hall, because Langan did not

subpoena him to testify at Cook’s trial. Worse, he made no

e ff ort to locate Hall. When the judge asked about this out

‐

side the presence of the jury, Langan reported that Hall was

“in prison.” The judge then stated, “at least you know where

to fi nd him, and you could get a writ to produce him,” but

Langan said that he had been unable to fi gure out which

prison Hall was in. (Wisconsin has a readily available inmate

locator system. See h tt ps://o ff ender.doc.state.wi.us › lop.

Moreover, it turned out that Hall was not in prison, nor was

he in hiding; he was working in the open and reporting to a

probation o ffi cer.) The judge worried that “if a fair trial to

Mr. Cook hangs in the balance,” Hall’s presence may be nec

‐

essary to allow the jury to “eyeball him and give some con

‐

sideration to this notion, that maybe it was Egerson and Hall

and not Cook and Egerson.” Langan did introduce a photo

of Hall to the jury. Both Cook and Hall are African

‐ American

men of roughly the same age and build.8 No. 18

‐ 2214

Notwithstanding Hall’s centrality to Cook’s theory of de

‐

fense and Langan’s lassitude in a tt empting to explore his

role in the events, the state appellate court found neither de

‐

fi cient performance nor prejudice in this respect. This is hard

to understand, as reasonable professional performance in

‐

cludes the duty to investigate. Wiggins v. Smith

, 539 U.S. 510,

522–23 (2003); Strickland

, 466 U.S. at 691. The district court, in

contrast, concluded that the state appellate court’s “ fi nding

that Cook failed to establish de fi cient performance as to

Langan’s failure to fi nd Hall before trial is an unreasonable

application of Strickland. ” We agree with the la tt er assess

‐

ment. We add that counsel’s failure to investigate cannot be

cured by later discovered facts—in this instance, that Hall

for a time had absconded while on parole. See Wiggins

, 539

U.S. at 526–27 (rejecting “strategic decision” for a tt orney’s

performance relied on by state court as a “ post hoc rationali

‐

zation”).

Had the jury seen Hall, it is reasonable to conclude that

there would have been strong corroboration of some damn

‐ ing evidence: both Sadowski and Babic were friends with

Hall; Hall had known Egerson since childhood; Hall stopped

by Babic’s home twice on the night of the robbery; neither

woman told the police about Hall’s visit; and Hall was ar

‐

rested at Babic’s house the next day. It is true that Hall did

not blurt out a confession at the postconviction hearing, but

that does not mean that his presence before the jury would

have had no impact. The content of his testimony is relevant

instead to the question of prejudice.

The state appellate court also opined that Hall’s presence

at trial would not have lessened the impact of the women’s

testimony identifying Cook as the second robber, particular

‐No. 18

‐ 2214 9

ly since Cook admi tt ed that he was with them shortly before

the robbery. (Note that the jury never learned of the lenience

both women expected from the state, either—here as else

‐

where, the errors Cook asserts are intertwined.) The stand

‐

ard, however, is not whether Hall would have exonerated

Cook; it is whether the absence of Hall’s testimony under

‐

mines our con fi dence in the jury’s verdict that Cook was the

one involved in the crime. This is troublesome, even though

the court elsewhere phrased the test properly. We conclude

that counsel’s failure even to try to obtain Hall for the trial

represented de fi cient performance.

2. Failure to object to hearsay testimony, unsupported

by a proper foundation, about cell phone records

The jury heard that the police learned that around 4:00

a.m. on the day of the robbery, Egerson’s cellphone had re

‐

ceived calls from a phone that they tracked fi rst to Stacy

Thede, Cook’s girlfriend, and ultimately to Cook. This in

‐

formation came in through the testimony of Detective Bald

‐

win, who said that the records revealed that the calls hit cell

towers near the Harpers’ home. Thede told detectives that

she had bought the phone for Cook, but that a few days be

‐

fore the robbery, he told her that he had lost it. The o ffi cers

took Cook into custody for questioning.

Langan did not object to Baldwin’s testimony about the

phone records, even though the state did not introduce them

into evidence. His failure to object was serious, because this

testimony provided the critical link between Cook’s phone

and the robbery and thus enabled the police to locate Cook.

And it was worse than inadvertent: outside the presence of

the jury, the trial judge expressed concern that “so much”

hearsay about the phone records and tower hits was coming10 No. 18

‐ 2214

in through the detective’s testimony. Langan responded that

he thought the state was going to introduce the telephone

records, which he had reviewed during discovery. The state

never did so.

Langan’s disregard of the cellphone evidence does not

stand in isolation from other moving pieces. The state appel

‐

late court saw the use of Cook’s phone during the crime as

evidence of his involvement. Yet, it concluded, other evi

‐

dence proved a similar point and thus diluted the impact of

the missing records. The state court observed that a DNA

swab found on a cigare tt e from Sadowski’s car matched

Cook’s DNA, and it stated that “Cook eventually admi tt ed

that he was in Peshtigo and was with Egerson, Sadowski, and

Babic at the Walmart and after the home invasion

... .” But the

la tt er statement does not appear in the record.

In its brief, the state asserted in several places (consistent

‐ ly with the state appellate court) that Cook told the police

not only that he was with Babic, Sadowski, and Egerson be

‐

fore the robbery, but also—and this is important—that Cook

“admitted that he was in the Walmart parking lot with the

others when Egerson directed the two women to purchase

gloves, bandanas and duct tape after 3 a.m. shortly before

the home invasion.” We found no record support for this

statement, and at oral argument we invited counsel to direct

our attention to whatever he could find. That supplemental

letter has not assuaged our concerns. The closest the state

was able to come was a statement from Baldwin reporting

that he believed that Cook said that he had been in the

Walmart parking lot, with no reference to time and no refer

‐

ence to Egerson’s alleged instructions to the women. And

Baldwin admitted that Cook never said he went into theNo. 18

‐ 2214 11

Walmart. Thus, we find the state’s brief overstated perhaps

the most material facts in the case. This is concerning, for, if

true, the state’s characterization would mean that Cook ad

‐

mitted to being with Egerson, Babic, and Sadowski at the

very location, at the very time, and for the very purpose of

purchasing the very supplies used to commit the robbery.

But the state’s characterization is inaccurate: the trial testi

‐

mony supports no more than Cook perhaps admitting he

was at the Walmart at some unspecified time before the rob

‐ bery. Nowhere did he admit the broader storyline the state

pressed in its brief. 1

This is a serious misapprehension of the facts: without

the Walmart parking lot evidence, the error with the cell

‐ phone records becomes critical. Because of its mistake, the

state appellate court found adequate performance and said

nothing about prejudice. We, however, cannot agree with

respect to performance. Once again, Cook’s a tt orney failed to

undertake the necessary background work and thereby left a

glaring gap in the evidence. Langan knew that the state had

no witness from the phone company and would not be able

to establish a foundation if the court sustained an objection.

The records directly linked Cook (or, more accurately, his

cellphone) to the 4:00 a.m. getaway call. And, as the district

court noted, the argument Langan actually made—that the

phone had been stolen—pales in comparison to the evidence

the jury heard about the cell phone tower hits in the vicinity

of the robbery near the time of the robbery. The cellphone

evidence also corroborated Sadowski and Babic’s testimony

1 The state shoulders a weighty obligation to play entirely straight

with facts that affect a person’s liberty. Too much is at stake for all in

‐

volved to see what we did here from the state.12 No. 18

‐ 2214

that they received Egerson’s call from Cook’s phone after the

robbery. Nothing explains Langan’s lack of e ff ort to keep it

out. In this respect as well, his performance was de fi cient.

3. Failure to bring out the de facto immunity the state

had given to Sadowski and Babic in exchange for

their testimony

Everyone recognized that the credibility of Sadowski and

Babic was pivotal to the prosecution’s case. Once again,

Langan left essential work undone. And once again, it can

‐

not be because it slipped his notice. The judge held a sidebar

and expressly asked whether law enforcement had promised

immunity or other concessions to Sadowski or Babic or both;

he described Langan’s failure to explore this issue as

“strange.” At the judge’s prompting, but without the jury

present, Langan fi nally questioned both women about a po

‐

tential deal. Babic testi fi ed that she gave her statements to

law enforcement with the understanding that she would not

be charged, and that she thought she had immunity. None

‐

theless, Langan dropped the ma tt er there; he did not elicit

this testimony from Babic in front of the jury. He did brie fl y

question Sadowski about a possible immunity deal in front

of the jury but did not press the point. And when the time

came for jury instructions, Langan did not request anything

about accomplice witnesses or concessions granted to wit

‐

nesses. He did, however, a tt empt to undermine Babic and

Sadowski’s credibility throughout the trial by pointing out

the inconsistencies in their testimony, their lies to police, and

their overall lack of credibility.

The state appellate court concluded that this omission

did not re fl ect de fi cient performance. Counsel knew, from

the sidebar we described earlier, that Babic believed that sheNo. 18

‐ 2214 13

had an immunity deal with the state in exchange for her tes

‐ timony. Yet Langan left this unexplored in open court. He

never established that Babic had not been charged but could

be. Whether or not there was a formal immunity agreement,

that would have been powerful impeachment evidence. See

Youngblood v. West Virginia

, 547 U.S. 867, 869 (2006), citing

United States v. Bagley

, 473 U.S. 667, 676 (1985). Given the

centrality of Babic’s role in the state’s case, the failure to

bring out Babic’s motives for testifying fell below an objec

‐ tively reasonable level of performance.

Langan asked Sadowski only four questions on this

point, and her testimony was equivocal. Nonetheless, he

brought out the fact that she was at risk of being charged but

had not been. He had no explanation for the di ff erence in his

questioning of the two. Indeed, he testi fi ed at the postconvic

‐

tion hearing that he could not remember why he did not

question Babic in front of the jury and that perhaps he “for

‐ got” to do so. See, e.g.

, Woolley v. Rednour

, 702 F.3d 411, 423–

24 (7th Cir. 2012) ( fi nding “no strategic rationale” underly

‐ ing counsel’s failure to secure expert testimony where coun

‐

sel admi tt ed his failure was an oversight).

Both the state appellate court and the district court found

that Langan’s performance was not so fl awed as to be consti

‐ tutionally de fi cient in these respects. We consider this a close

call. Cook argues that walking the jury through Babic’s un

‐ derstanding of her immunity would have be tt er exposed her

motivations to protect herself by testifying the way the state

wanted. Perhaps so. On the other hand, the fact that Babic

was an accomplice to the crimes and thus was motivated to

cooperate with the state was developed through other testi

‐

mony. Finally, Langan did point out inconsistencies within14 No. 18

‐ 2214

Babic’s testimony and between Sadowski’s testimony and

hers and discussed their motives to lie in his closing argu

‐

ment. Perhaps standing alone, this episode would not justify

a fi nding of constitutionally de fi cient performance. But it is

another negative factor when we assess counsel’s perfor

‐

mance as a whole.

Related to the de facto immunity point is Langan’s deci

‐

sion not to request a jury instruction advising caution with

the reliability of the testimony of accomplices. At the post

‐

conviction hearing, he explained that he did not do so be

‐

cause he was satis fi ed with the general instruction on wit

‐

ness credibility. The la tt er instruction tells the jury to consid

‐

er bias, motives for falsifying testimony, and the witnesses’

interest in the result of the trial. Although the more speci fi c

accomplice instruction contained a stronger admonition, the

state court reasonably concluded that Langan’s choice lay

within the broad bounds of acceptable performance. We thus

place no weight on that aspect of his work. The same is true

of the state appellate court’s assessment of the lack of a spe

‐

cial instruction on immunity.

4. Failure to object to Margaret Harper’s unanticipated

in

‐ court identi fi cation of Cook

Throughout the period leading up to the trial, neither

Jimmy nor Margaret Harper was able to describe the intrud

‐

ers to police. Their daughter recalled only that both were Af

‐

rican

‐ Americans. The police showed Margaret photo arrays

(all of which included Cook’s picture), but she did not iden

‐ tify anyone as her a tt acker.

At trial, however—and to Langan’s astonishment (but not

that of the prosecutor, who knew what was coming)—No. 18

‐ 2214 15

Margaret took the witness stand and identi fi ed Cook, the on

‐ ly black man in the courtroom, as her assailant. After elicit

‐ ing testimony that Margaret saw her assailant’s eyes during

a physical struggle, the prosecutor asked if “anything [had]

happened since this incident that would help [her] identify

this person.” Margaret replied that she had seen Cook’s eyes

in court and told her family, “I will never forget those eyes if

I ever saw them again, and I just had a fl ashback when Mr.

Cook looked at me this morning.” Langan neither objected,

moved to exclude this testimony as unduly prejudicial under

Wis. Stat. § 904.03, nor moved for a mistrial. He did, howev

‐

er, address her “ fl ashback” in his closing argument. He

pointed out that it was dark that night; that events were un

‐ folding quickly; that the a tt acker, with “bugged out” eyes,

was screaming at her; and that she had consistently failed to

recognize Cook’s picture in the photo arrays. Addressing the

obvious, he also commented that “given the racial makeup

of this area there’s a decent possibility that this trial is the

closest that she’s ever been to a black man since the night of

the robbery.” In light of all that, he urged the jury to fi nd

that the state had not shown Cook’s guilt beyond a reasona

‐

ble doubt.

The state appellate court determined that counsel’s per

‐

formance was not de fi cient, because the in

‐ court identi fi ca

‐

tion was admissible under the then

‐ controlling case of State

v. Marshall

, 284 N.W.2d 592 (Wis. 1979). In Marshall

, the Su

‐

preme Court of Wisconsin held that the state exclusionary

rule applicable to unnecessarily suggestive identi fi cation

procedures did not apply to spontaneous identi fi cations. Id.

at 599. Cook argued that Marshall did not apply because this

identi fi cation was worse than suggestive—it was unreliable.

The state appellate court thought that the state supreme16 No. 18

‐ 2214

court embraced that distinction in May 2006, four months

after the conclusion of Cook’s trial (January 2006). State v.

Hibl

, 714 N.W.2d 194, 201–05 (Wis. 2006) (clarifying that even

for spontaneous identi fi cations, courts should exclude undu

‐ ly prejudicial identi fi cations). (Whether Hibl simply clari fi ed

state law or introduced a new limitation is an interesting

question, but not one that we need to resolve.)

Langan’s performance in these respects was far from ide

‐

al. Had this been the only fl aw, we would have a di ff erent

case, but as is clear by now, it was not. In one respect, how

‐

ever, we fi nd nothing to criticize: although the trial court

could have, and probably would have, ordered the jury to

disregard Harper’s identi fi cation as unduly prejudicial if

Langan had made a proper motion, it is unclear whether his

failure to do so made any di ff erence under then

‐ prevailing

state law. See Marshall

, 284 N.W.2d at 599. More importantly,

as we noted earlier, Langan did a tt empt to impeach Harper

in other ways.

Cook also argues that the identi fi cation was so unreliable

that any competent a tt orney would have argued that it vio

‐

lated due process. Courts have addressed due

‐ process con

‐

cerns with in

‐ court identi fi cations, particularly where, as

here, the defendant is the only person of his race in the

courtroom and is seated at the defense table. See, e.g.

, Lee v.

Foster

, 750 F.3d 687, 691 (7th Cir. 2014). But at the time of tri

‐

al, only a handful of cases would have supported a due

‐

process objection. This is not enough. See Richter

, 562 U.S. at

110 (counsel not de fi cient for lack of foresight or failing to

prepare for remote possibilities).

5. Withdrawal of question to Sadowski about Hall’s

possession of a gun immediately before the crimesNo. 18

‐ 2214 17

At one point, Langan was a tt empting to establish the fact

that Hall was carrying a gun on the night of the home inva

‐

sion. When Sadowski was on the stand, he asked her wheth

‐

er she saw Hall with a gun that night. While his words were

still hanging in the air, the prosecutor objected to the ques

‐

tion. Without missing a beat, and without giving the court a

chance to rule on the objection, Langan withdrew the ques

‐

tion. The judge later indicated (at the post

‐ conviction hear

‐ ing) that he would have overruled the state’s objection and

allowed Langan to proceed. Post

‐ conviction counsel was

able to get Sadowski to admit that Hall frequently carried a

gun similar to the one used in the crimes. We can think of no

strategic reason why Langan would have wanted to fold so

quickly, and so we regard this as another instance of de fi

‐

cient performance.

6. Failure to object to testimony that Cook temporarily

discontinued his interrogation by police

Detective Baldwin testi fi ed that after Cook initially

waived his Miranda rights, he identi fi ed Egerson from a pho

‐

to while saying that he had not been in town that day. Bald

‐

win then stated that the o ffi cers then asked Cook if he want

‐

ed to give a wri tt en statement but Cook declined and “indi

‐

cated that he didn’t want to talk anymore.” Langan did not

object to the la tt er testimony nor to the introduction of a

signed statement form with “refused” wri tt en on it. Alt

‐ hough the form was introduced as an exhibit, the jury never

saw it.

The detectives interviewed Cook again the next day. Af

‐

ter again waiving his Miranda rights, Cook admi tt ed that he

was in the area with Egerson on the night of the robbery. Ac

‐ cording to Cook, the two went to Babic’s house for a few18 No. 18

‐ 2214

hours before returning to Milwaukee. Langan himself elicit

‐

ed the testimony that Cook again invoked his right to silence

at the end of the second interview.

We see nothing worth pursuing in these events. Cook

contends that the state appellate court unreasonably deter

‐

mined that he did not invoke his Fifth Amendment right

against self

‐ incrimination and unreasonably applied Strick

‐

land when it ruled that he was not prejudiced by Langan’s

failure to object to this part of Baldwin’s testimony. But Lan

‐ gan’s failure to object to the detective’s testimony was not

de fi cient. Even though Doyle v. Ohio

, 426 U.S. 610, 619 (1976),

holds that silence following Miranda warnings may not be

used to impeach a defendant’s testimony at trial, it does not

bar all testimony about a defendant’s silence. See Anderson v.

Charles

, 447 U.S. 404, 408–09 (1980) (questions about post

‐

Miranda silence permissible to “elicit an explanation for a

prior inconsistent statement”). Whether questions about a

defendant’s post

‐ Miranda silence violate due process de

‐ pends on “the particular use to which the post

‐ arrest silence

is being put.” Lindgren v. Lane

, 925 F.2d 198, 202 (7th Cir.

1991).

The state appellate court reasonably found that the pros

‐

ecution here did not improperly use Cook’s silence as evi

‐

dence of his guilt or to impeach him. See Bieghler v. McBride

,

389 F.3d 701, 705, 707 (7th Cir. 2004). The state did not focus

on this aspect of Baldwin’s testimony. Cook’s termination of

questioning during his fi rst interview came up only as part

of his summary of the sequence of events in the investigation

leading up to Cook’s admissions. See Splunge v. Parke

, 160

F.3d 369, 371–73 (7th Cir. 1998) (testimony on defendant’s

silence did not violate due process where prosecutor men

‐No. 18

‐ 2214 19

tioned silence in sequence of events as a “prologue” to the

introduction of statements defendant did make). Counsel

was not de fi cient for failing to object to this testimony.

B

Before turning to the question of prejudice, we add a few

facts that came out at the postconviction evidentiary hearing.

They shed additional light on Langan’s performance.

Sadowski testi fi ed that she and Hall had heard a rumor

that the Harpers had a large amount of marijuana in their

garage. Based on that rumor, she and Hall had scoped out

the garage a few times with an ex

‐ boyfriend of the Harpers’

daughter. Although she claimed not to have seen Hall with a

gun on the night of the robbery, Sadowski admi tt ed that

Hall had his gun on him “a lot” and it “[c]ould have been”

the same type of gun as the one used in the robbery.

The court also heard evidence from the state and Hall

himself about Hall’s whereabouts at the time of Cook’s trial.

The state established that Hall was then on parole but in

“absconder status” after failing to show up for an appoint

‐

ment with his parole o ffi cer; a warrant was also out for his

arrest. Hall’s parole o ffi cer had tried to conduct a home visit,

but Hall’s roommates reported that he had been kicked out.

Hall (who was brought in from prison for the hearing) testi

‐

fi ed that he had been living and working at his usual loca

‐

tions and that he would have complied with a subpoena to

testify at Cook’s trial. He also admi tt ed to stopping by

Babic’s the night of the robbery but denied any involvement

in the crime; he further denied having a gun that night or

previously casing the Harpers’ garage.20 No. 18

‐ 2214

Finally, Langan testi fi ed. He could not remember why he

did not question Babic on immunity or concessions in front

of the jury, saying only that perhaps he “forgot” to do so. He

explained that he did not request an accomplice jury instruc

‐

tion—which would have told the jury to consider the wom

‐

en’s testimony with “caution and great care”—because he

was satis fi ed with the general instruction about witness

credibility. He also testi fi ed that he knew that the state did

not disclose a witness who could authenticate Cook’s cell

‐ phone records. But he did not object to the detective’s testi

‐

mony about Cook’s cellphone being used the night of the

robbery because he had reviewed the records and believed

they were authentic and because he did not want to bog

down the jury with cumulative evidence. The court stated

that it thought it would have sustained an objection, had

Langan made one, and that the state could not have “go tt en

that testimony in front of the jury if [counsel] had been do

‐ ing his job.”

IV

Although we (along with the state appellate court) have

found a number of examples of de fi cient performance, that

is not enough to win the day for Cook. He can prevail only if

he shows both substandard performance and prejudice. We

must now ascertain whether the state court unreasonably

concluded that Cook was not prejudiced by his lawyer’s fail

‐ ings. In conducting that inquiry, we bear in mind that feder

‐

al review of a state court’s application of Strickland is “dou

‐ bly deferential”: the federal court must give fi rst the defense

a tt orney and then the last state court to rule on the ma tt er

“the bene fi t of the doubt.” Burt v. Titlow

, 571 U.S. 12, 15

(2013).No. 18

‐ 2214 21

Rather than ask how prejudicial each individual error

was, we evaluate Langan’s performance as a whole, or as

Cook has put it, we consider the cumulative e ff ect of coun

‐

sel’s errors. See Goodman v. Bertrand

, 467 F.3d 1022, 1030 (7th

Cir. 2006). For this purpose, we set aside any alleged error

for which Langan’s performance did not fall below the con

‐

stitutional minimum; we look only at the question whether

areas in which his performance was de fi cient, taken as a

whole, led to a reasonable probability of a di ff erent result.

Particularly bearing in mind some of the critical factual

misapprehensions (perhaps triggered by the state’s over

‐

statements in its briefs) that the state appellate court had, we

fi nd (as did the experienced state trial judge) that counsel’s

performance, taken as a whole, undermines our con fi dence

in the outcome of Cook’s trial.

We rely in particular on three signi fi cant errors: (1) Lan

‐ gan’s failure to investigate Hall’s location; (2) his failure to

question Babic about immunity; and (3) his failure to object

to or otherwise seek to exclude the hearsay testimony about

the location and use of Cook’s cellphone. Taken together,

these instances of de fi cient performance undermined the tri

‐

al judge’s con fi dence in the result of the trial, and as an ob

‐ jective ma tt er we come to the same conclusion. See

, e.g.

, Goodman

, 467 F.3d at 1030 (counsel’s failure to subpoena im

‐

portant defense witness because he thought the state would,

was prejudicial when combined with “catalog” of other er

‐

rors).

In deciding whether there is a reasonable probability that

the errors changed the outcome of the trial, the court must

consider all of the evidence. Logically, a verdict weakly sup

‐ ported by the record is more likely to have been a ff ected by22 No. 18

‐ 2214

errors than one with overwhelming record support. See

Blackmon v. Williams

, 823 F.3d 1088, 1105 (7th Cir. 2016). We

recognize that even at a hypothetical trial where counsel did

not make these errors, the jury would have learned of Cook’s

limited admissions and would have heard Babic and Sa

‐

dowski implicate him in the robbery. But the jury would not

have learned that Cook’s phone was used to call Egerson’s

immediately after the robbery from a location near the

Harpers’ home. That evidence not only independently

linked Cook to the robbery; it also corroborated the women’s

identi fi cation of him as a participant. Further, the state’s case

relied almost entirely on Babic and Sadowski’s testimony,

yet counsel failed to pursue an important opportunity to im

‐ peach Babic with her de facto immunity. He compounded

that error by failing to ask for instructions speci fi cally un

‐ dermining the value of both women’s testimony. If the jury

found the women not credible and the cellphone testimony

were excluded, the state’s evidence would have been re

‐

duced to Cook’s admission that he was with the women and

Egerson that night. But so was Hall. And had counsel taken

reasonable steps to fi nd Hall, the testimony at the post

‐

conviction hearing indicates he would have succeeded, and

Hall would have complied with a trial subpoena. The jury—

and Margaret Harper, for that ma tt er—would have seen

Hall, assessed his credibility, and heard his testimony, which

con fl icted in some respects with Sadowski’s. Most im

‐ portantly, the possibility that a di ff erent man was Egerson’s

accomplice would have been a concrete reality for the jury,

not just talk.

To establish prejudice, Cook did not need to prove “that

counsel’s de fi cient conduct more likely than not altered the

outcome in the case.” Strickland

, 466 U.S. at 693. Instead, heNo. 18

‐ 2214 23

had to “show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceed

‐ ing would have been di ff erent. A reasonable probability is a

probability su ffi cient to undermine con fi dence in the out

‐

come.” Id. at 694. We conclude that the state appellate court

unreasonably applied that standard when it concluded that

the result in Cook’s case could stand, despite counsel’s sub

‐

par performance.

We therefore REVERSE the judgment of the district court

and order that Cook’s petition for a writ of habeas corpus be

granted, subject to the state’s right to decide, within 120

days, whether to proceed with a new trial.