NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 14, 2015*
Decided April 15, 2015
Before
RICHARD A. POSNER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 14‐3077
JON F. RAETHER, Appeal from the United States District
Petitioner‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 13‐CV‐46
MICHAEL MEISNER, Nancy Joseph,
Respondent‐Appellant. Magistrate Judge.
O R D E R
Following his conviction in Wisconsin state court for second‐degree sexual
assault of a child, Jon Raether sought a new trial on the ground that his counsel was
constitutionally ineffective. The state courts awarded him no relief, but in federal court
Raether’s arguments carried the day. A magistrate judge, presiding by consent, granted
his petition for a writ of habeas corpus, see 28 U.S.C. § 2254, and the State of Wisconsin
appeals. We affirm the decision in favor of Raether.
After examining the briefs and record, we have concluded that oral argument is
*
unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(C).
No. 14‐3077 Page 2
Raether was charged after “Danielle N.,” then 14 years old, told a guidance
counselor that she had been raped several days earlier at a party. The counselor
contacted the police, and an officer interviewed Danielle as well as Emily Bragg, the
party’s 16‐year‐old host, and a 15‐year‐old guest, Emily Brown. Defense counsel’s
examination of these trial witnesses is the crux of Raether’s § 2254 petition.
The police officer’s report of his interview with Danielle documents her
admission that she remembered only “bits and pieces” of the alleged assault because
she had consumed several beers and a fair amount of hard alcohol. What Danielle
remembered, she said, was retreating with Raether (who was 18 years old at the time) to
the bedroom of Bragg’s absent mother. She had told Raether, she continued, that she
did not want to have sex because neither of them had protection, but he ignored her
protests and forced intercourse on her. According to the police officer, though, Danielle
could not provide any more detail about the incident. She had passed out afterward,
she said, later coming to first in Bragg’s garage, and then the next morning in a
bathroom, covered in vomit.
During Bragg’s interview, the police officer reported, she said that Danielle was
drunk, and so the others suggested that she lie down in the bedroom. Raether then
went “back into the bedroom area,” Bragg continued, and a short time later Brown
yelled that Danielle was on the bed naked from the waist down. The group went to
investigate, and they saw Danielle on the bed, wearing only her shirt, vomiting. Raether
was in the room already when Bragg entered.
Brown told the officer that she had arrived at Bragg’s house early and later went
to get beer with a group that included Raether and Danielle. About two hours after
returning to Bragg’s house, around 1:00 a.m., she found Danielle in the bedroom
wearing only a shirt and an unhooked bra, with Raether standing next to the bed.
During the interview, the officer reported, Brown recalled that Raether immediately
denied having anything to do with Danielle’s state. He quickly left the room, Brown
had said, after which she and Bragg helped Danielle get dressed.
Raether also agreed to talk to the police officer, and told him that he spent most
of the evening on the computer. Danielle, he said, was drunk and had made some
advances toward him, all of which he resisted.
Raether was charged with violating WIS. STAT. § 948.02(2), which proscribes
sexual contact with a person under 16, regardless of consent. See State v. Jadowski, 680
No. 14‐3077 Page 3
N.W.2d 810, 814–15 (Wis. 2004). The key issue at trial, therefore, was whether sex had
occurred, not whether Danielle had consented. At the time of the alleged assault,
Raether already was on bond for a charge of operating a vehicle without the owner’s
consent, so the state also charged him with “bail jumping” in violation of WIS. STAT.
§ 946.49. That statute defines “bail jumping” to include committing a crime while on
bond, so a conviction on the charge of sexual assault also would assure his conviction
for this offense.
The police obtained no physical evidence to corroborate Danielle’s accusation,
and the prosecutor candidly told the jury during his opening statement that he would
seek to satisfy the state’s burden of proof through the testimony of Danielle and Bragg.
Defense counsel retorted that the prosecution would fail to meet its burden of proof
because its witnesses were not believable.
Danielle testified first and gave a detailed account of the party and assault. She
had led Raether to the bedroom to make another boy jealous, she explained, and once
there he locked the door and started making advances. He would not let her leave,
Danielle said, not even to use the bathroom, so she urinated on the floor. She told the
jury that Raether then pushed her down on the bed and raped her. Later, Danielle
continued, after she and Raether had left the bedroom, he and his friends locked her in
the garage. She quickly backpedaled, though, and conceded that she did not remember
being in the garage and was relying on what her friends said the next morning. In fact,
she admitted, she had passed out in the mother’s bedroom and woke the next morning
in Bragg’s sister’s bedroom. Danielle conceded that she told no one at the party about
the alleged assault, revealing it to a different friend later the next day.
Defense counsel did not confront Danielle about the details included in her trial
testimony but omitted from the police officer’s report, such as Raether locking the
bedroom door. Neither did counsel question Danielle about inconsistencies in the
details she did provide, for instance whether she woke up in a bathroom or a bedroom.
Counsel did not even pursue Danielle’s admission on direct examination that she had
feigned personal knowledge of being in the garage, nor did the lawyer challenge
Danielle’s assertion during cross‐examination that her memory of the event had
remained constant over time. Counsel simply asked Danielle to repeat her story in an
ultimately futile attempt to poke holes in it.
Bragg, the host, testified that she had discovered the door to her mother’s
bedroom locked. She picked the lock, she told the jury, and Raether exited, fully
No. 14‐3077 Page 4
clothed. Danielle was on the bed wearing only a bra. Bragg helped her get dressed and
walk to the bathroom, where she vomited. After that, according to Bragg, Danielle had
slept in her sister’s bedroom, and a short time later Bragg watched as some of the guests
drew on Danielle’s body with a marker. The next morning, Bragg said, Danielle told her
about the rape.
Defense counsel did not confront Bragg with conflicts between her trial
testimony and the police officer’s report, in particular her new revelations that she, not
Brown, was the first to arrive at her mother’s bedroom, and that the door was locked.
Nor did counsel probe Bragg’s assertion that Danielle had told her about the rape the
next morning, which contradicted Danielle’s testimony. Likewise, counsel passed up
the chance to question Bragg about the disconnect between her testimony that she and
others had rescued Danielle and allowed others to draw with markers on Danielle.
Counsel, though, did elicit some additional details about the evening: Bragg had
ordered everyone out of the house around 12:30 in order to clean up after Danielle, who
had vomited “all over everything” and urinated on the floor of her mother’s bedroom.
Brown was called as a defense witness. Working from notes provided by his
investigator, counsel walked her through the party at Bragg’s house. She had arrived
early, she said, and then gone with Bragg and Danielle to a McDonald’s where they met
up with Raether. He accompanied them to Bragg’s house, she testified, and once there
concerned himself with the music being played in the background, brushing off
advances from Danielle. No one had gotten sick or gone into any bedroom, Brown
averred, and the three girls were awake together at around 3:00 a.m. that morning.
The prosecutor immediately impeached Brown with her prior statement to the
police. Brown conceded that the police report accurately portrays what she had told the
officer. At first she explained that her testimony on direct examination must have
concerned a different party, but then, after a reminder that she was under oath, Brown
admitted lying to protect Raether. She told the prosecutor that, in fact, she had seen
Danielle on a bed wearing no pants. After leaving the courtroom, Brown was arrested
for perjuring herself.
Raether testified that he had gone looking for a friend, Cesar, about an hour into
the party, and instead found Danielle urinating on the floor of the mother’s bedroom.
He immediately called for “Emily,” and Brown came first, followed quickly by the rest
of the group. Bragg and Brown then tried unsuccessfully, he said, to get Danielle to lie
No. 14‐3077 Page 5
down. Later he and Bragg again helped Danielle back to the mother’s bedroom to lie
down. He did not see Danielle again until Bragg found her covered in vomit much later.
Defense counsel argued, with minimal elaboration, to the jury in closing that the
“scripted” stories of the prosecution’s witnesses did not add up, but the jury
nevertheless found Raether guilty of both the sexual assault and bail jumping, and the
trial judge sentenced him to a total of 10 years in prison, followed by 8 years’ extended
supervision. After changing lawyers Raether moved for a new trial, claiming that he
was prejudiced by his trial counsel’s deficient cross‐examination of Danielle and Bragg,
the lawyer’s decision to call Brown as a defense witness, and his choice of defense
theory—that Raether had insufficient time to commit the assault. At an evidentiary
hearing on Raether’s motion, trial counsel admitted receiving and reading the police
officer’s reports before trial. But when asked about his cross‐examination of Danielle
and Bragg, counsel could not say why he had not explored the discrepancies between
what they had told the police and the jury. All he said is that his strategy, consistent
with his chosen theory, was to minimize the number of times these witnesses
mentioned Raether and Danielle together in the bedroom. And when asked about his
direct examination of Brown, trial counsel acknowledged that he based his questions on
his investigator’s report, not the police report, even though he knew that the two
accounts differed. Counsel also acknowledged letting his investigator prepare Brown to
testify, even though he was uncertain if the investigator knew about Brown’s statement
to the police. “I can’t say if there’s a strategic reason,” counsel conceded, “for, um,
making the choices I made.”
The trial court refused to grant a new trial, and the state appellate court, the last
state court to address Raether’s claim of ineffective assistance, upheld that ruling. The
appellate court agreed with Raether that his lawyer’s handling of the three witnesses
was deficient, but, the court concluded, not prejudicial. The state’s evidence placed
Raether “in the bedroom with a nearly naked” Danielle, the court reasoned, and
Raether’s own checkered past (he had 13 prior convictions, mostly for joyriding or
property crimes) had undermined his credibility. Thus, the court concluded, it could
not say that “but for counsel’s unprofessional errors the result of the proceeding would
have been different.”
In his § 2254 petition Raether argued that the state appellate court had
unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984). That benchmark
decision for claims of ineffectiveness provides that the Sixth Amendment’s guarantee of
the assistance of counsel is violated if an attorney’s actions are objectively unreasonable
No. 14‐3077 Page 6
and prejudice the defendant. Id. at 687–88, 693. The magistrate judge agreed with
Raether that the state court’s application of Strickland is unreasonable and
independently determined that Raether’s counsel was ineffective.
On appeal the state fails to engage the particular facts of this case, instead
proceeding as if stating the standard of review is enough to defeat the claim. The state
reminds us of the deferential review ordinarily mandated by the Antiterrorism and
Effective Death Penalty Act, and the exceedingly high burden faced by petitioners who
complain about the quality of their representation at trial. With these points no one can
quibble, but they are no substitute for a defense of the state court’s reasoning in this
case, which we conclude is indefensible.
Although the magistrate judge concluded that the state appellate court had
unreasonably applied Strickland, a more immediate problem is that the state court’s
analysis is contrary to Strickland. A state court’s decision is “contrary to . . . clearly
established federal law” if it does not apply the proper legal rule to a petitioner’s claim.
See Warren v. Baenen, 712 F.3d 1090, 1096 (7th Cir. 2013); Mosley v. Atchison, 689 F.3d 838,
850 (7th Cir. 2012). That is what happened here. Although the court identified Strickland
as the controlling legal authority, it did not apply Strickland’s framework. Rather, in
assessing whether Raether was prejudiced by counsel’s errors, the court required a
showing of but‐for causation. That is not the standard. Instead a petitioner must
demonstrate a “reasonability probability”—defined as one “sufficient to undermine
confidence in the outcome”—that counsel’s errors materially affected the outcome of
the proceeding. Strickland, 466 U.S. at 694.
It is true that in Sussman v. Jenkins, 636 F.3d 329, 359–60 (7th Cir. 2011), we
concluded that the omission of Strickland’s “reasonable probability” language did not
result in a state‐court decision that was contrary to Strickland. But we reached the
opposite conclusion about nearly identical missteps in Mosley, 689 F.3d at 850–51, and
Martin v. Grosshans, 424 F.3d 588, 592 (7th Cir. 2005). This case is more like Mosley. There
we noted that the state’s case “was far from unassailable,” and the state court’s opinion
did not assure us that, despite the use of “shorthand,” the court truly applied the correct
standard. Mosley, 689 F.3d at 850. Here the prosecutor was candid about the assailability
of his case, and, as we will explain, the state appellate court’s analysis reflects the
application of a more onerous standard than that called for by Strickland. Moreover,
unlike Sussman, the state court never correctly articulated Strickland’s prejudice
standard, or cited to a decision of the state courts that does. Cf. Sussman, 636 F.3d at 360.
So, as in Mosley, the state court’s decision is contrary to Strickland, meaning that we
No. 14‐3077 Page 7
must independently determine whether Raether’s counsel was constitutionally
ineffective. See Mosley, 689 F.3d at 853.
Viewed as a whole, see Raygoza v. Hulick, 474 F.3d 958, 963 (7th Cir. 2007), we
think counsel’s performance fell well short of the mark. We can see no reasonable
justification for failing to make use of the crucial witnesses’ prior inconsistent
statements. See Dixon v. Snyder, 266 F.3d 693, 703 (7th Cir. 2002); Driscoll v. Delo, 71 F.3d
701, 710 (8th Cir. 1995). Counsel’s explanation that he sought to minimize the amount of
testimony placing Raether in the bedroom is nonsensical. Raether’s own testimony
placed him in the bedroom, so counsel’s choice to abandon certain lines of questioning
in pursuit of this goal was pointless, particularly when those lines of questioning would
have impeached otherwise damning testimony. See Rivas v. Fischer, 780 F.3d 529, 549–50
(2d Cir. 2015); Davis v. Lambert, 388 F.3d 1052, 1063–64 (7th Cir. 2004).
The state appellate court concluded on the basis of counsel’s testimony that his
choice was “strategic,” and so accorded that choice substantial deference. This
reasoning is flawed, since it could not have been permissible strategy to cross‐examine
Danielle and Bragg in a manner that, as the court conceded, was deficient. What’s more,
labeling a choice “strategic” does not ipso facto shield it from collateral attack. Instead,
under Strickland the question is the extent to which a strategic choice is supported by
counsel’s preparation. See Campbell v. Reardon, 780 F.3d 752, 763–64 (7th Cir. 2015). Here
counsel’s preparation rendered this “strategic” choice patently unreasonable, and the
case law does not mandate deference to unreasonable defense tactics. See Richards v.
Quarterman, 566 F.3d 553, 564, 567 (5th Cir. 2009); United States ex rel. Hampton v. Leibach,
347 F.3d 219, 249 (7th Cir. 2003).
The state court examined the prejudice flowing from each alleged error
individually, but the correct question is whether Raether was prejudiced by counsel’s
errors in the aggregate. See Toliver v. McCaughtry, 539 F.3d 766, 778 (7th Cir. 2008);
Martin, 424 F.3d at 592. We conclude that he was: In this battle of credibility, counsel’s
failure to make use of the witness’s prior statements doomed Raether’s prospects from
the beginning. Had counsel cross‐examined the witnesses adequately, he could have
cast significant doubt on Danielle’s and Bragg’s testimony, which was ripe for
impeaching. His failure to do so is all the more striking because counsel told the jury he
would undermine the witnesses’ credibility “but never followed through on this
suggestion.” Wiggins v. Smith, 539 U.S. 510, 536 (2003); see Hampton, 347 F.3d at 257. And
counsel compounded his error during his closing argument. See Hall v. Washington, 106
F.3d 742, 750 (7th Cir. 1997). Having failed to place into evidence the various
No. 14‐3077 Page 8
inconsistencies between the witnesses’ testimony and prior statements, counsel
neglected to make use of the inconsistencies that did appear in the record. Instead, he
characterized the testimony of Danielle and Bragg as “scripted,” a description that
served to highlight the ways in which their testimonies aligned. And counsel must have
known better than to call a witness who was about to perjure herself. As the district
court recognized, all counsel needed to do was undermine the credibility of the state’s
two witnesses. No other evidence existed on which to convict Raether. “Counsel’s
failure to use available tools to undermine this credibility resulted in prejudice.”
Williams v. Washington, 59 F.3d 673, 684 (7th Cir. 1995). Because of counsel’s
substandard performance, Raether’s trial did not reliably test whether he did as he was
accused.
The grant of habeas corpus relief is AFFIRMED. The stay issued by the
magistrate judge on December 23, 2014, is DISSOLVED. The State of Wisconsin shall
have 120 days in which to release or retry Raether.