### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 19

‐ 2002

P ATRICK J. G AGE

,

Petitioner

‐ Appellant

,

v.

R EED A. R ICHARDSON

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 16

‐ cv

‐ 849

— James D. Peterson

, Chief Judge

.

____________________

A RGUED S EPTEMBER 18, 2020

— D ECIDED O CTOBER 21, 2020

____________________

Before S YKES

, Chief Judge

, and H AMILTON and S T

. E VE

, Cir

‐

cuit Judges

.

S T

. E VE

, Circuit Judge

. A Wisconsin jury found Patrick Gage

guilty of repeatedly sexually assaulting his daughter, H.R.G.,

when she was a child. In state postconviction proceedings,

Gage asserted that his trial counsel was ine ff ective for failing

to interview and present testimony from his son and mother,

Josh and Nancy Gage. The state appellate court concluded

that Gage was not prejudiced by his trial counsel’s failure to2 No. 19

‐ 2002

call these witnesses because their testimony in postconviction

proceedings was consistent with H.R.G.’s trial testimony. The

state court’s decision was not an unreasonable application of

clearly established federal law, so we a ffi rm the district

court’s denial of habeas relief.

I. Background

A. Charges and Trial

The state charged Gage with four counts of sexual assault

of H.R.G. 1 These assaults occurred in various locations over

several years, including: (1) at Nancy’s house—where Gage

was living at the time—when H.R.G. was between nine and

twelve years old (counts one and two); (2) in a cabin behind

Nancy’s house when she was twelve (count three); and (3) at

Gage’s residence when she was younger than sixteen (count

four).

At trial, H.R.G. testi fi ed that she and her older brother,

Josh, primarily lived with their mother after their parents di

‐

vorced. They would visit Gage one day per week, every other

weekend, and sometimes for the entire summer. H.R.G. testi

‐

fi ed that her father sexually assaulted her almost every time

she visited, though not every time. She described two speci fi c

assaults that occurred in the basement of Nancy’s house

where she, Josh, and Gage slept. The fi rst incident happened

when she was nine or ten. She and Gage were sleeping in the

basement bedroom, and Josh was in the living room. When

everyone was asleep, Gage touched her over her clothes and

1 The state also charged Gage with two additional counts that alleged

that he repeatedly sexually assaulted a former girlfriend’s daughter. The

jury found Gage not guilty of those counts.No. 19

‐ 2002 3

tried to put his penis in her mouth. The second assault oc

‐

curred when she and Gage were sleeping on the pullout

couch in the basement living room and Josh was in the bed

‐

room.

When H.R.G. was 12, she and Josh stayed with Gage for

the summer in a cabin on Nancy’s property. The cabin had a

bedroom, where Josh slept, and a loft above that bedroom,

where H.R.G. slept. H.R.G. testi fi ed that Gage climbed the

ladder to the loft and assaulted her. Later, Gage moved to a

new residence. At one point, when H.R.G. was asleep on the

couch and Josh was asleep in the bedroom, Gage came home

and began to sexually assault H.R.G. over her clothes. She

kicked him, he stopped, and that was the last time he as

‐

saulted her.

On cross

‐ examination, H.R.G. testi fi ed that based on the

layout of Nancy’s house, Nancy or Josh could have observed

the sexual assaults if they had entered the room. Nancy could

go up and down stairs without a problem. H.R.G. acknowl

‐ edged that she was o ff ered the upstairs bedroom to sleep in

but declined. She also stated that sound traveled in the cabin.

In Gage’s residence, if Josh had walked out of the bedroom,

he would have been able to see the couch. H.R.G. further tes

‐

ti fi ed that she had not told the details of the fi rst assault to law

enforcement or social workers because she had previously

blocked out the incident.

Gage’s counsel did not call Josh or Nancy to testify at trial.

Gage was the only defense witness. The jury found Gage not

guilty of the fi rst count, and guilty of the second, third, and

fourth counts. The state court sentenced him to 33 years of

imprisonment followed by 21 years of extended supervision.4 No. 19

‐ 2002

B. Postconviction Proceedings

Gage fi led a motion for postconviction relief in the state

trial court, contending that his trial counsel was ine ff ective for

failing to interview Josh and Nancy before trial and present

their testimony. 2 The court held an evidentiary hearing, at

which Josh, Nancy, and Gage’s trial counsel testi fi ed.

Josh testi fi ed that when he and H.R.G. stayed at Nancy’s

house, he would usually sleep on the pullout couch or in the

bedroom. Gage would typically sleep in a recliner or in the

bedroom, and H.R.G. would usually sleep on the couch. Josh

did not remember H.R.G. sleeping in the bedroom, but stated

it was possible that she slept there a few times. Gage usually

fell asleep fi rst, followed by H.R.G., and Josh would stay up

the latest—usually falling asleep between one and three in the

morning. Josh also testi fi ed that sound traveled in the cabin,

and the ladder leading to the loft was creaky. He never saw

Gage touch his sister in a sexual way.

Nancy testi fi ed that she believed H.R.G. and Gage had a

normal father

‐ daughter relationship, and she did not witness

any changes in their relationship. She had a sewing room in

the basement, which she accessed by walking through the

basement living room. She sometimes used her sewing ma

‐

chine in the evenings, as late as 11 at night. She had o ff ered

H.R.G. the upstairs bedroom at her house, but H.R.G. had de

‐

clined because she wanted to stay by Josh.

2 Gage also a tt acked several other aspects of his trial and sentencing,

but those issues are not relevant to this appeal and so we will not discuss

them further.No. 19

‐ 2002 5

Gage’s trial counsel testi fi ed that he did not interview Josh

or Nancy. He ultimately did not think that their testimony

would bolster Gage’s defense.

The trial court determined that defense counsel’s perfor

‐

mance was not de fi cient, and so Gage could not satisfy the

demanding standard of Strickland v. Washington

, 466 U.S. 668

(1984). The Wisconsin Court of Appeals a ffi rmed the denial of

Gage’s postconviction motion. State v. Gage

, 365 Wis. 2d 606

(Wis. Ct. App. 2015) (per curiam). It noted that a “claim of in

‐

e ff ective assistance of counsel has two parts: (1) de fi cient per

‐

formance by counsel and (2) prejudice resulting from that de

‐

fi cient performance.” Id. ¶ 10. To prove prejudice, the defend

‐

ant must show “that the a tt orney’s errors rendered the result

‐ ing conviction unreliable in light of the other evidence pre

‐

sented.” Id.

Without reaching the performance prong, the Wisconsin

Court of Appeals concluded that Gage had not shown that his

trial counsel’s failure to call Josh or Nancy as witnesses prej

‐

udiced him. The court noted that Josh’s and Nancy’s testi

‐

mony was consistent with H.R.G.’s “about the layout of the

basement and general sleeping arrangements.” Id. ¶ 11. For

example, Josh’s “testimony that he ‘usually’ slept on the

couch and sometimes slept in the bedroom [did] not contra

‐

dict the victim’s testimony that each of the siblings sometimes

slept in the bedroom and sometimes slept on the sectional

couch with the pullout bed in the living room area.” Id. Simi

‐ larly, Josh’s testimony the he “was generally the last person to

go to bed and that he never witnessed any sexual conduct”

between Gage and H.R.G. “does not undermine the victim’s

account that the incidents would occur after everyone had

gone to sleep.” Id. As for Nancy, her testimony “that she did6 No. 19

‐ 2002

not generally go into the basement at night was consistent

with the victim’s testimony” and did not show that she

“would have been in position to witness any of the alleged

incidents.” Id. Ultimately, the court concluded that it did “not

view the additional testimony that the victim’s brother or

Gage’s mother could have provided as undermining the vic

‐

tim’s account in any signi fi cant way.” Id. ¶ 13. Gage appealed,

and the Wisconsin Supreme Court denied his petition for re

‐

view.

Proceeding pro se

, Gage then fi led a petition for a writ of

habeas corpus under 28 U.S.C. § 2254 in the United States Dis

‐

trict Court for the Western District of Wisconsin, contending

that his trial counsel was ine ff ective for failing to call Josh and

Nancy as witnesses. To succeed on this claim, under Strick

‐

land

, Gage needed to show both that his counsel’s perfor

‐

mance was de fi cient and that he was prejudiced as a result.

466 U.S. at 687. The district court agreed with Gage that his

trial counsel performed de fi ciently by failing to interview

Josh and Nancy. Gage v. Richardson (“ Gage II ”), No. 16

‐ cv

‐ 849,

2019 WL 1900338, at *7–8 (W.D. Wis. Apr. 29, 2019).

The district court, however, denied habeas relief on the

prejudice prong. Applying the deferential standard of review

required by the Antiterrorism and E ff ective Death Penalty Act

of 1996 (AEDPA), it determined that the state appellate court

did not apply Strickland “unreasonably in concluding that

Gage had not shown prejudice.” Id. at *8. It noted that “the

court of appeals failed to discuss some noteworthy statements

in Josh’s and Nancy’s pro ff ered testimony,” such as the fact

that “they never witnessed any sexual touching or unusual

behavior between Gage and H.R.G.” Id. Nonetheless, the dis

‐

trict court determined that “the remainder of the state court’sNo. 19

‐ 2002 7

analysis is su ffi cient to assure [the district court] that the

court’s prejudice analysis is not ‘unreasonable’ and is at least

a ‘plausible outcome.’” Id. (quoting Carter v. Duncan

, 819 F.3d

931, 948 (7th Cir. 2016)). Speci fi cally, the state appellate

court’s conclusion that Josh’s and Nancy’s testimony was gen

‐ erally consistent with H.R.G.’s testimony and did not under

‐

mine her account was reasonable because they “con fi rmed

H.R.G.’s description of the various residences and of the gen

‐

eral sleeping arrangements.” Id. Further, H.R.G. had already

admi tt ed to many aspects of their testimony during cross

‐ ex

‐

amination, like the fact that “Josh could have heard the as

‐

saults or walked in the room at any time during the assaults”

and “she had declined her grandmother’s o ff er of a bedroom

upstairs because she wanted to be near Josh.” Id. at *8. Given

that “the most signi fi cant import of Josh’s and Nancy’s testi

‐ mony—that neither witness saw or heard anything that

would have indicated to them that Gage was sexually assault

‐ ing H.R.G.—had minimal evidentiary value in light of the

state’s theory that Gage was calculating, manipulative, and

assaulted H.R.G. only after Josh and Nancy were asleep in

separate rooms,” the district court concluded that “it was rea

‐

sonable for the court of appeals to conclude that the likelihood

of a di ff erent result was not substantial.” Id. at *9.

II. Discussion

On appeal, Gage maintains that he received ine ff ective as

‐

sistance of counsel. Under Strickland

, he must show both that

his counsel’s performance was de fi cient and that he was prej

‐

udiced as a result. 466 U.S. at 687. Typically, “[i]n considering

habeas corpus petitions challenging state court convictions,

our review is governed (and greatly limited) by AEDPA.”

Dassey v. Di tt mann

, 877 F.3d 297, 301 (7th Cir. 2017) (en banc)8 No. 19

‐ 2002

(internal quotation marks and citation omi tt ed). Gage con

‐

tends that we do not owe AEDPA deference here. Even if it

applies, Gage argues the state appellate court unreasonably

applied Strickland ’s prejudice prong, entitling him to habeas

relief.

As explained below, Gage’s arguments fail. AEDPA defer

‐

ence applies, and the Wisconsin Court of Appeals did not un

‐ reasonably apply Strickland ’s prejudice prong to the facts of

this case. Given that Gage is only entitled to habeas relief if he

satis fi es both of Strickland ’s prongs, we decline to analyze

whether his trial counsel’s performance was de fi cient and in

‐

stead focus solely on the prejudice prong. Morales v. Johnson

,

659 F.3d 588, 600 (7th Cir. 2011) (“We need not address both

prongs of the Strickland analysis.”).

A. Deference Under AEDPA

Generally, habeas claims arising from state courts are gov

‐

erned by AEDPA, under which “a federal court may grant ha

‐

beas relief after a state

‐ court adjudication on the merits only

when that decision (1) ‘was contrary to, or involved an unrea

‐

sonable application of, clearly established Federal law, as de

‐

termined by the Supreme Court of the United States;’ or (2)

‘was based on an unreasonable determination of the facts in

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

Schmidt v. Foster

, 911 F.3d 469, 476–77 (7th Cir. 2018) (en banc)

(quoting 28 U.S.C. §§ 2254(d)(1), (2)).

Gage argues that we should not apply AEDPA deference

for two reasons: fi rst, because the state appellate court mis

‐

stated and misapplied Strickland ’s prejudice standard, and

second, because it based its decision on an unreasonable de

‐

termination of the facts.No. 19

‐ 2002 9

As an initial ma tt er, the state contends that Gage forfeited

these challenges because he did not raise these issues before

the district court. “A party generally forfeits issues and argu

‐

ments raised for the fi rst time on appeal.” Scheidler v. Indiana

,

914 F.3d 535, 540 (7th Cir. 2019). While “we have discretion to

decide issues of law not argued in the district court

... that

discretion should be used sparingly.” In re Sw. Airlines

Voucher Litig.

, 799 F.3d 701, 714 (7th Cir. 2015). Gage contends

that we should exercise this discretion because he was pro se

, the issues are fully briefed, and it is in the interests of justice.

Nonetheless, even if we considered the merits of Gage’s chal

‐ lenges to AEDPA deference, they fail.

First, Gage takes issue with the Wisconsin Court of Ap

‐ peals’ formulation of Strickland ’s prejudice standard. Under

Strickland

, the prejudice prong requires the petitioner to “af

‐

fi rmatively prove prejudice,” such that “there is a reasonable

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

result of the proceeding would have been di ff erent.” 466 U.S.

at 694. “A reasonable probability is a probability su ffi cient to

undermine con fi dence in the outcome.” Id. The Wisconsin

Court of Appeals stated that to prove prejudice, a defendant

must “show that the a tt orney’s errors rendered the resulting

conviction unreliable in light of the other evidence presented. ”

Gage I

, 365 Wis. 2d at ¶ 10 (emphasis added). The parties agree

that this misstates Strickland but disagree about whether the

state appellate court’s analysis nonetheless re fl ects a correct

application of the prejudice standard.

When a state court misstates Strickland ’s prejudice prong,

AEDPA deference may still apply if its analysis “focused on

whether the pro ff ered testimony could have a ff ected the out

‐

come, which is the correct inquiry under Strickland .” Carter

,10 No. 19

‐ 2002

819 F.3d at 944; Sussman v. Jenkins

, 636 F.3d 329, 360 (7th Cir.

2011). This is true even when the incorrect recitation seem

‐ ingly places an additional burden on the petitioner. Carter

, 819

F.3d at 944. In Carter

, for example, the state court incorrectly

recited the prejudice standard as requiring the defendant to

show the result of the proceeding was unreliable or funda

‐ mentally unfair. Id. We nonetheless applied AEDPA deference

to the state court’s determination that prejudice was lacking

because “its analysis focused on the probable impact of the

pro ff ered testimony on the outcome.” Id. at 945; see also Floyd

v. Hanks

, 364 F.3d 847, 852–53 (7th Cir. 2004) (state court’s rec

‐

itation that “when errors do not make the result of the trial

unreliable, they do not cause prejudice” did not render the

decision of the state court contrary to Strickland where the “ac

‐

tual analysis of Floyd’s counsel’s conduct properly consid

‐

ered whether the counsel’s actions a ff ected the outcome of the

trial”).

Here, the state court’s analysis focused on the consistency

between Josh’s and Nancy’s testimony at the postconviction

hearing and H.R.G.’s testimony at trial, which can reasonably

be interpreted as “whether the pro ff ered testimony could

have a ff ected the outcome,” or its likely impact on the verdict.

See Carter

, 819 F.3d at 944. The state court noted that Josh’s

and Nancy’s testimony did not undermine H.R.G.’s testi

‐

mony in any signi fi cant way. Thus, despite the incorrect reci

‐

tation of the prejudice standard, the state court’s decision is

not “contrary to” Strickland.

Second, Gage contends that the Wisconsin Court of Ap

‐ peals based its decision on an unreasonable determination of

the facts. See § 2254(d)(2). A state court’s decision involves an

unreasonable determination of the facts if it “rests upon fact

‐No. 19

‐ 2002 11

fi nding that ignores the clear and convincing weight of the

evidence.” Corcoran v. Neal

, 783 F.3d 676, 683 (7th Cir. 2015)

(quoting McManus v. Neal

, 779 F.3d 634, 649 (7th Cir. 2015)).

In particular, Gage criticizes how the state appellate court

characterized Josh’s testimony about the sleeping arrange

‐

ments in the basement when it stated that “the brother’s testi

‐

mony that he ‘usually’ slept on the couch and sometimes slept

in the bedroom does not contradict the victim’s testimony that

each of the siblings sometimes slept in the bedroom and

sometimes slept on the sectional couch with the pullout bed

in the living room area.” Gage I

, 365 Wis. 2d at ¶ 11. Gage

claims this summary misstates Josh’s testimony because he

testi fi ed that H.R.G. usually slept on the couch—and while it

was possible she slept in the bedroom a few times, he did not

speci fi cally remember her doing so.

While the state court’s fi nding that Josh and H.R.G. both

testi fi ed that they “usually slept on the couch and sometimes

in the bedroom” may not have been correct, it was not an un

‐

reasonable interpretation of the testimony. See Collins v. Gae tz

,

612 F.3d 574, 586 (7th Cir. 2010) (under the “unreasonable de

‐

termination of the facts” standard, “a state court’s factual

fi nding is never unreasonable ‘merely because the federal ha

‐

beas court would have reached a di ff erent conclusion in the

fi rst instance’”). Gage disagrees with the state court’s charac

‐

terization of how consistent Josh’s testimony about the sleep

‐ ing arrangements was with H.R.G.’s. But the state court’s de

‐ scription of the testimony was not unreasonable because both

Josh and H.R.G. testi fi ed that they slept either on the bed or

on the couch, and Josh acknowledged it was possible that

H.R.G. slept in the bedroom a few times. Thus, the state

court’s determination that Josh’s testimony did not contradict12 No. 19

‐ 2002

H.R.G.’s does not ignore the clear and convincing weight of

the evidence.

Because Gage’s challenges fail, we analyze the state appel

‐

late court’s decision under the deferential standard set forth

in AEDPA.

B. Strickland ’s Prejudice Standard

“The standard for legal errors under § 2254(d)(1) was

meant to be di ffi cult to satisfy.” Dassey

, 877 F.3d at 302. The

issue is not whether we “agree with the state court decision or

even whether the state court decision was correct,” it is

“whether the decision was unreasonably wrong under an ob

‐ jective standard.” Id. When the state court “‘explains its deci

‐

sion on the merits in a reasoned opinion,’ this presents a

‘straightforward inquiry’ for the federal habeas court.” Len tz

v. Kennedy

, 967 F.3d 675, 688 (7th Cir. 2020) (quoting Wilson v.

Sellers

, 138 S. Ct. 1188, 1192 (2018)). Here, the Wisconsin Court

of Appeals was the last reasoned decision on the merits, and

“thus we focus on that decision and ‘simply review[] the spe

‐

ci fi c reasons given by the state court and defer[] to those rea

‐

sons if they are reasonable.” Id. (quoting Wilson

, 138 S. Ct. at

1192). Habeas relief is only warranted if the petitioner shows

that the state court’s determination “was so lacking in justi fi

‐

cation that there was an error well understood and compre

‐

hended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter

, 562 U.S. 86, 103 (2011).

Given this narrow and exacting standard of review, we con

‐

clude that the Wisconsin Court of Appeals did not unreason

‐ ably apply Strickland ’s prejudice prong.

The state appellate court determined that Gage had not

shown prejudice from his trial counsel’s failure to call JoshNo. 19

‐ 2002 13

and Nancy as witnesses because their testimony was largely

consistent with H.R.G.’s—meaning it did not signi fi cantly un

‐

dermine her account of the sexual assaults. Thus, there was

not a reasonable probability of a di ff erent outcome had they

testi fi ed. As the district court noted, the state appellate court’s

analysis of the issue was brief and failed to discuss some of

Josh’s and Nancy’s statements in their pro ff ered testimony.

Their testimony that “they never witnessed any sexual touch

‐ ing or unusual behavior between Gage and H.R.G.,” for ex

‐ ample, “would have made H.R.G.’s testimony at trial that

Gage sexually assaulted her ‘almost every time [she] visited’

at least somewhat doubtful,” given Josh’s proximity to her in

all three locations. Gage II

, 2019 WL 1900338, at *8.

Nonetheless, the state appellate court “provided a terse

but su ffi cient explanation” for why Josh’s and Nancy’s testi

‐

mony did not signi fi cantly undermine H.R.G.’s. See Dassey

,

877 F.3d at 312–14 (noting that the “relative brevity” of the

state appellate court opinion was “not a reason for granting

habeas relief”). Much of their testimony corroborated

H.R.G.’s version of events: nearly all the points Nancy and

Josh conveyed in the postconviction hearing came out during

H.R.G.’s cross

‐ examination. H.R.G., for example, testi fi ed that

Josh was always nearby when the assaults occurred, Nancy

could easily access the basement sewing room, she had de

‐

clined Nancy’s o ff er to sleep in the upstairs bedroom, and

sound traveled in the cabin. And while Josh and Nancy testi

‐

fi ed that they did not witness any of the assaults, this fact

alone does not suggest a reasonable probability that the jury

would have disbelieved H.R.G. given that she testi fi ed the as

‐

saults occurred after everyone went to sleep. Thus, Josh’s and

Nancy’s testimony not only failed to undermine much of

H.R.G.’s testimony, it—in many cases—corroborated it.14 No. 19

‐ 2002

Further, while Josh’s testimony that he could not remember

H.R.G. sleeping in the basement bedroom potentially under

‐

mined her account of the fi rst assault—which she testi fi ed

happened when she was sleeping in the bedroom—Gage was

ultimately acqui tt ed of that charge.

There is of course a chance the additional testimony could

have changed the jury’s mind. Given this case rested on the

jury’s determination of the credibility of the witnesses, fair

‐

minded jurists may well disagree over the extent to which

Josh’s and Nancy’s testimony was consistent with H.R.G.’s.

But without any directly contradictory testimony, it was rea

‐

sonable for the Wisconsin appellate court to conclude there

was not a reasonable probability of a di ff erent outcome had

they testi fi ed.

III. Conclusion

The Wisconsin Court of Appeals did not unreasonably ap

‐ ply Strickland when it concluded there was not a reasonable

probability of a di ff erent outcome had Josh and Nancy testi

‐

fi ed, so the district court’s denial of habeas relief is

AFFIRMED

.