In the
United States Court of Appeals
For the Seventh Circuit
No. 12‐2357
RONALD A. MCELVANEY,
Petitioner‐Appellant,
v.
WILLIAM POLLARD,
Respondent‐Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:11‐cv‐00198‐WEC — William E. Callahan, Jr., Magistrate Judge.
ARGUED MAY 29, 2013 — DECIDED AUGUST 20, 2013
Before BAUER, WOOD, and TINDER, Circuit Judges.
BAUER, Circuit Judge. Petitioner Ronald McElvaney was
convicted in Wisconsin state court of sexually assaulting a
child. After unsuccessfully seeking postconviction relief in the
state courts, McElvaney filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254, asserting that his trial counsel
was ineffective under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L.Ed.2d 674 (1984), by failing to challenge the
2 No. 12‐2357
time period for the assault set forth in the charging documents
as overly broad, and that his appellate counsel was ineffective
by failing to raise trial counsel’s ineffectiveness on appeal.
Because the Wisconsin state court’s determination that
McElvaney’s attorneys were not ineffective was not an unrea‐
sonable application of or contrary to Strickland, we affirm the
district court’s denial of the writ.
I. Background
In 2005, a ten‐year‐old known in court documents as
“Jessica O.” reported to her family that she had been sexually
assaulted by a man named “Ron” several years earlier. Based
on Jessica’s description of the man, where she lived at the time,
and the sleeping arrangements of the home, Jessica’s mother
identified McElvaney, who had been her live‐in boyfriend, as
the man, and estimated that the time frame for the assault was
between August 2001 and February 2002. Over the course of
interviews with investigators, Jessica narrowed the time frame
to the fall, and probation records show that McElvaney was
incarcerated from September 11, 2001, to September 26, 2001,
and again from December 19, 2001, to February 11, 2002.
Accordingly, on April 28, 2005, a complaint was issued
charging McElvaney with one count of sexually assaulting
Jessica between September 26, 2001, and December 19, 2001,
when she was seven years old. An information was subse‐
quently filed with the same time frame for the assault.
On January 14, 2006, McElvaney’s trial counsel, David
Celebre, moved for an order requiring the district attorney to
indicate with greater particularity the time of the alleged
assault and to prohibit the modification of the time period at
No. 12‐2357 3
trial. In his affidavit in support of the motion, Celebre asserted
that McElvaney “is unable to formulate an alibi and identify
any potentially supporting witnesses to the time frame alleged
for the offense due to its wide span and his inability to identify
his whereabouts through the course of such period[.]” A
hearing on this motion was held on January 24, 2006. At the
hearing, Celebre only presented arguments in support of his
request for an order preventing the state from modifying the
time period charged at trial. He did not address his request for
a more particular time frame for the charged offense; instead,
he conceded that the state “has the providence to allege” the
three‐month date range found in the complaint and informa‐
tion. The trial court judge said that he would not allow the
state to amend the time at trial, but noted that “they can
narrow it, of course, but under the case law, [] they’re saying
this is the best they can do, and that’s what is required.”
On March 28, 2006, a jury convicted McElvaney of one
count of first‐degree sexual assault of a minor, in violation of
Wis. Stat. § 948.02(1). He was sentenced to thirty years—fifteen
years of imprisonment and fifteen years of supervised release.
Following his conviction, McElvaney’s appellate counsel,
Glen Kulkoski, filed a motion alleging ineffective assistance of
trial counsel based on Celebre’s failure to object to the way in
which Jessica’s videotaped testimony was presented at trial.
See Wis. Stat. § 974.02; Morales v. Boatwright, 580 F.3d 653, 656
(7th Cir. 2009) (discussing Wisconsin’s postconviction proce‐
dures). Kulkoski did not allege ineffective assistance of trial
counsel based on Celebre’s failure to challenge the charge for
lack of specificity regarding the date range for the assault in
the charging documents. On June 13, 2007, the trial court judge
4 No. 12‐2357
found that Celebre’s performance was deficient for failing to
make an objection regarding the videotaped testimony, but
concluded that this had not prejudiced McElvaney.
McElvaney’s conviction and the trial court’s order denying
relief were affirmed by the Wisconsin Court of Appeals on
May 28, 2008, and the Wisconsin Supreme Court denied his
petition for review on August 15, 2008.
After losing his direct appeal, McElvaney sought state
postconviction relief through Wisconsin’s collateral review
process. See Wis. Stat. § 974.06. This time, McElvaney, pro se,
alleged ineffective assistance of trial counsel based on Celebre’s
failure to pursue the motion seeking a more specific date‐range
for the time of the alleged assault or to move to dismiss the
charges due to the lack of particularity of the time frame in the
charging documents. McElvaney claimed that the lack of
specificity as to the date of the assault prevented him from
preparing a defense. The trial court denied the motion on
January 16, 2009, without a hearing because McElvaney’s
assertions were “conclusory and not factual.”
The Wisconsin Court of Appeals affirmed on September 30,
2009. In its summary disposition, the Court of Appeals set
forth the two‐part performance and prejudice standard for
ineffective assistance of counsel claims outlined in State v.
Maloney, 698 N.W.2d 583 (Wis. 2005) (citing Strickland, 466 U.S.
at 687), and concluded that McElvaney failed to make the
required showing under either prong because he “allege[d] no
facts to show that he would have been able to provide an alibi
defense.” The Court of Appeals recognized that “[a] criminal
charge must be sufficiently stated to allow the defendant to
plead and prepare a defense.” Nevertheless, the Court of
No. 12‐2357 5
Appeals, citing State v. Fawcett, 426 N.W.2d 91 (Wis. Ct. App.
1988), also noted that “[a] complaint alleging an offense over
a span of time need not be dismissed for lack of specificity
simply because a defendant indicates a desire to assert an alibi
defense.” McElvaney, however, simply asserted that he was
prevented from preparing an alibi defense and “offer[ed]
nothing to suggest what his alibi might have been nor demon‐
strated that a motion to dismiss would have been successful.”
Thus, the Court of Appeals concluded, McElvaney failed to
show that Celebre’s failure to pursue the motion for a more
particular date range and to bring a motion to dismiss was
“deficient or prejudicial[,]” and as a result, appellate counsel
was not ineffective for failing to raise trial counsel’s perfor‐
mance on appeal. The Wisconsin Supreme Court denied
McElvaney’s petition for review on March 9, 2010.
McElvaney next sought relief in federal court under 28
U.S.C. § 2254. In his federal habeas petition, McElvaney alleged
ineffectiveness of both trial and appellate counsel regarding
the lack of particularity of the charging period in the criminal
complaint charging him with sexual assault.1 The district court
denied the motion but granted McElvaney a certificate of
appealability.
II. Discussion
We review a district court’s judgment regarding habeas
relief de novo. Woolley v. Rednour, 702 F.3d 411, 420 (7th Cir.
1
McElvaney also alleged ineffectiveness of counsel based on his trial
counsel’s failure to object to the manner in which Jessica’s videotaped
testimony was used at trial, but he has since abandoned that claim.
6 No. 12‐2357
2012). The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254, governs our assessment of
McElvaney’s claims. Where, as here, a state court decides a
constitutional claim on the merits, AEDPA provides that a writ
of habeas corpus shall not be granted unless the state‐court
adjudication “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” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evi‐
dence” before the state court. 28 U.S.C. § 2254(d)(1)–(2). “When
a state collateral review system issues multiple decisions, we
typically consider the last reasoned opinion on the
claim”—here the opinion of the Wisconsin Court of Appeals.
Woolley, 702 F.3d at 421 (internal quotation marks and citation
omitted). In applying AEDPA’s “difficult to meet … and highly
deferential standard,” we must give the Wisconsin Court of
Appeals’ decision “the benefit of the doubt.” Cullen v.
Pinholster, 131 S. Ct. 1388, 1398, 179 L.Ed.2d 557 (2011) (internal
quotation marks and citations omitted).
McElvaney contends that his right to counsel was violated
by ineffective assistance of both his trial and appellate counsel.
Specifically, McElvaney claims his trial counsel was ineffective
by failing to pursue the pre‐trial motion for a more particular
statement and failing to move to dismiss the charge at trial due
to the lack of specificity of the date‐range in the charging
documents. He also contends his appellate counsel was
ineffective by failing to raise his trial counsel’s deficiencies
regarding the charging period on appeal.
No. 12‐2357 7
To demonstrate that the right to counsel was violated by
ineffective assistance, a person challenging a conviction must
meet the familiar two‐part standard set forth in Strickland. 466
U.S. at 688, 694. He must show that (1) his counsel’s perfor‐
mance was deficient, meaning it fell below an “objective
standard of reasonableness” informed by “prevailing profes‐
sional norms” and (2) his counsel’s deficient performance
prejudiced him, meaning that there is a “reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. In evaluating an
attorney’s performance, “courts must defer to any strategic
decision the lawyer made that falls within the ‘wide range of
reasonable professional assistance,’ even if that strategy was
ultimately unsuccessful.” Shaw v. Wilson, —F.3d—, No.
12–1628, 2013 WL 3814671, at *5 (7th Cir. Jul. 24, 2013) (quoting
Strickland, 466 U.S. at 689).
Our task here, however, is not de novo review of
McElvaney’s ineffective assistance of counsel claims under
Strickland. Rather, given the confines of AEDPA we have
discussed, our inquiry is limited to whether the Wisconsin
Court of Appeals’ determination that McElvaney was not
denied effective assistance of counsel “was contrary to, or
involved an unreasonable application of” Strickland. This
means that “the question is not whether [McElvaney’s] coun‐
sel’s actions were reasonable. The question is whether there is
any reasonable argument that [McElvaney’s] counsel satisfied
Strickland’s deferential standard.” Harrington v. Richter, 131 S.
Ct. 770, 788, 178 L.Ed.2d 624 (2011).
This “doubly” deferential standard of review, id., dooms
McElvaney’s appeal. It is telling that McElvaney devotes the
8 No. 12‐2357
majority of his brief to describing how his attorneys were
ineffective and spends far fewer pages discussing the Wiscon‐
sin Court of Appeals’ decision. While McElvaney may have a
colorable argument that his trial counsel was ineffective for
failing to challenge the charging period for lack of specificity
under Wisconsin state precedent, he cannot persuade us that
the Wisconsin Court of Appeals’ adverse determination was
“contrary to, or involved an unreasonable application of”
Strickland.
McElvaney first argues that the cursory treatment the
Wisconsin Court of Appeals gave his claim was “unreason‐
able” under Strickland. According to McElvaney, the Wisconsin
Court of Appeals was “unreasonable” in “requiring him to
prove his ability to present an alibi defense” and in denying
him an evidentiary hearing, which prevented the court from
“fully considering his claim under Strickland.” But the Court of
Appeals did not require McElvaney to “prove” an alibi
defense; rather, it affirmed the denial of postconviction relief
without an evidentiary hearing because McElvaney failed to
allege any facts regarding a possible alibi defense. The Court of
Appeals noted that the same Wisconsin case McElvaney relied
upon in support of his ineffectiveness argument—State v.
Fawcett—states that a complaint need not be dismissed for lack
of specificity whenever “a defendant indicates a desire to assert
an alibi defense[.]” 426 N.W.2d at 96 n.3. Thus, the Court of
Appeals concluded that given Fawcett and his conclusory
allegations, McElvaney had not established that a motion to
dismiss the complaint would have had a reasonable probability
of success. Similarly, trial counsel’s failure to seek a more
specific date‐range may have been reasonable and, in any
No. 12‐2357 9
event, was not prejudicial because McElvaney had not alleged
facts showing that the alibi defense he was “prevented from
preparing” was anything more than a hypothetical. The Court
of Appeals therefore concluded that McElvaney’s ineffective
assistance of counsel claims failed because he had not estab‐
lished that his trial counsel’s (as well as his appellate counsel’s)
performance was deficient or prejudicial. We do not think this
determination was “so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Harring‐
ton, 131 S.Ct. at 786–87.
McElvaney next argues that the Wisconsin Court of Ap‐
peals’ decision was “contrary to” federal law because it held
McElvaney to a higher standard for establishing prejudice than
Strickland requires. In support, McElvaney points us to the
Court of Appeals’ statement that McElvaney failed to demon‐
strate “that a motion to dismiss would have been successful.”
As McElvaney correctly argues, to establish the required
prejudice, a person challenging a conviction must show only
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. This does not
require a showing that “counsel’s deficient conduct more likely
than not altered the outcome in the case.” Id. Instead, a
“reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. But we decline to seize upon a
single word in the Court of Appeals’ decision to find an error
of law. A more complete reading of the Court of Appeals’
decision indicates that, despite this statement, it correctly
recognized the appropriate standard for prejudice under
10 No. 12‐2357
Strickland and did not require McElvaney to make a heightened
showing under that prong. Accordingly, the Court of Appeals’
decision was not “contrary” to Strickland.
In reaching this conclusion, we acknowledge that the Court
of Appeals’ analysis was cursory and that McElvaney puts
forth compelling arguments in support of his ineffective
assistance of counsel claims. Nevertheless, under the exacting
standards of AEDPA, we are “limited to a deferential review
of the reasonableness, rather than the absolute correctness,” of
the Wisconsin Court of Appeals’ decision, Mosley v. Atchinson,
689 F.3d 838, 844 (7th Cir. 2012) (citation omitted), and the
Court of Appeals’ decision was a reasonable application of
Strickland.
III. Conclusion
We AFFIRM the judgment of the district court.