In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3613
JOSEPH J. JORDAN,
Petitioner‐Appellant,
v.
RANDALL R. HEPP, Warden, Fox Lake Correctional Institution,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:07‐cv‐00382‐RTR — Rudolph T. Randa, Judge.
____________________
ARGUED JANUARY 5, 2016 — DECIDED AUGUST 3, 2016
____________________
Before WOOD, Chief Judge, and KANNE and ROVNER, Circuit
Judges.
WOOD, Chief Judge. This case is, in spirit, a companion to
our recent decision in Imani v. Pollard, No. 14‐3407, 2016 WL
3434673 (7th Cir. June 22, 2016). It, too, raises the question
whether a criminal defendant’s right to self‐representation—
acknowledged by the Supreme Court in Faretta v. California,
422 U.S. 806 (1975)—was infringed. In our case, Joseph Jordan
was on trial for reckless homicide in Wisconsin. He moved to
2 No. 14‐3613
waive counsel and represent himself because he feared that
his court‐appointed attorney was not up to the job. The court
denied his motion. What happened at trial, in Jordan’s view,
vindicated his fears: his attorney failed to object to a series of
improper statements during the state’s closing argument
when the prosecutor vouched for the credibility of a witness.
Jordan now seeks habeas corpus relief, either on the basis of the
denial of his Faretta right or his failure to receive the assistance
of counsel to which the Sixth Amendment entitles him. We
conclude that he is entitled to proceed on the latter ground,
and thus we reverse and remand for a hearing under 28 U.S.C.
§ 2254(e)(2).
I
In 2003, a Wisconsin state trial court convicted Jordan of
one count of first‐degree reckless homicide, three counts of
first‐degree endangerment, and one count of being a felon in
possession of a firearm. The charges stemmed from the shoot‐
ing death of David Robinson. Robinson was sitting in a car
with three other people when he was killed by shots fired
from a passing car. The state contended that Jordan was the
shooter.
The prosecution’s theory was that as Jordan sat in the pas‐
senger seat of the passing car, he reached across the driver—
Michael Blake Jones (“Blake”)—and fired at Robinson. Eye‐
witnesses presented conflicting accounts. One passenger in
Robinson’s car identified Blake as the shooter. The driver of
Robinson’s car was unable to identify either Blake or Robin‐
son as the shooter, but he admitted that he might initially have
told the police that Blake was the shooter. Another passenger
in Robinson’s car, Tashanda Washington, identified Jordan as
the shooter. A defense witness testified that Washington had
No. 14‐3613 3
previously admitted to her that Blake was the shooter, but that
Washington and Blake had agreed to pin the crime on Jordan.
In some ways, this jumbled eyewitness testimony was just
a sideshow. That was so because Jordan (supposedly) signed
a confession that he was the shooter. The confession took cen‐
ter stage at the trial, where the parties hotly contested how it
came to be. As Jordan told the story, he was interrogated for
13 hours over a 27‐hour period, during which he steadfastly
maintained his innocence. At the end, he says, his interroga‐
tors presented him with a document and falsely told him it
“only sa[id] what we talked about” and that he could go home
if he signed it. In fact, it was a written confession, which Jor‐
dan signed without reading—because, as those two detectives
knew and as both parties now agree, Jordan is nearly illiterate.
The government’s witnesses had a different recollection. They
said that Jordan confessed during the interrogation, that the
detectives wrote up an accurate statement of his oral confes‐
sion, and that Jordan then signed it because, as the document
states, “he wanted to tell the truth about his involvement in
this incident.” Everyone expected that the trial would turn on
which story the jury believed.
Jordan’s dissatisfaction with his attorney, Russell Bohach,
long predated the trial. He repeatedly complained about Bo‐
hach, telling the court that Bohach was not meeting with him
or investigating leads properly. After the court postponed the
initial trial date, Jordan reiterated his concerns at an eviden‐
tiary hearing held the day before the new trial date. While the
hearing was underway, Jordan asked the court to do one of
three things: appoint new counsel, delay the trial to allow Bo‐
hach to conduct further research, or allow Jordan to represent
himself. The court immediately rejected the first two options,
4 No. 14‐3613
but it engaged in an extended colloquy with Jordan about the
third.
The court first canvassed Jordan’s background and experi‐
ence. Jordan stated that he had an eighth‐grade education, but
only a fourth‐grade reading ability. He had experience with
being charged, but not with a trial. He confirmed that he un‐
derstood the elements of the charges against him and cor‐
rectly recited the potential sentence if convicted. He also said
that he understood his constitutional right to counsel and the
role of counsel—including the fact that if he were to represent
himself, his stand‐by counsel could not make his case for him.
He acknowledged that without counsel, he would not know
to make certain legal arguments, including objections to evi‐
dence or jury instructions. The court then ruled that he was
competent to waive counsel and allowed him to do so. It com‐
mented that Jordan “certainly appears to me to be of average
capability generally” and that he “seems alert and reasonably
bright and [to] have some general understanding of what’s
going on here.” While the court expressed concern about Jor‐
dan’s limited literacy, it stated “that at least under the circum‐
stances of this case, which is ultimately a factual case and not
a document’s [sic] case, that that limitation should not prevent
him from representing himself.”
We would not be here if matters had rested there. But they
did not: later that day, the court reconsidered. It returned to
the interrupted evidentiary hearing, this time with Jordan
representing himself. During the hearing, the court reviewed
a police report. This prompted it to worry that Jordan’s lim‐
ited literacy would prevent him from using documents pro‐
vided in discovery, including police reports, “in any meaning‐
ful way at trial.” After discussing the documents and taking a
No. 14‐3613 5
recess to allow Jordan to read some documents on his own,
the court asked Jordan to read a document aloud and explain
whether he understood it. Jordan responded that he only
“somewhat” understood it, but that he was not concerned by
this because his theory of defense did not depend on any doc‐
uments. In fact, he told the court, he had already written
down the questions that he wanted to ask of various wit‐
nesses. The court was not reassured and decided that it had
to reverse its earlier ruling. It explained that given Jordan’s
limited literacy and education, he would “not [be] able to ef‐
fectively represent [himself] and present a meaningful de‐
fense in this case.” While Jordan was “competent to proceed
to trial,” he was “not competent to represent [himself] in a
case of this nature” and so it ordered Bohach to represent Jor‐
dan at trial.
At trial, Bohach gave Jordan reason to be displeased. The
key issue, recall, was whose account of the supposed confes‐
sion the jury would believe. In its closing argument, the pros‐
ecution made a series of statements vouching for the detec‐
tives’ credibility and urged the jury to bear in mind who had
the most to lose—Jordan or the prosecutor. The jury got the
message and convicted Jordan on all counts.
Jordan represented himself in a post‐trial motion to the
trial court, where he raised the two arguments now before us.
The trial court denied his motion in a written order dated Sep‐
tember 17, 2004. He continued to represent himself on direct
appeal, where he raised the same points (among others). He
was unsuccessful in the Wisconsin Court of Appeals, which
adopted the trial court’s post‐trial order, and the Wisconsin
Supreme Court denied review. Jordan then wended his way
6 No. 14‐3613
through the state post‐conviction review process, where he
raised other points, again to no avail.
Jordan then filed a petition seeking federal habeas corpus
relief pursuant to 28 U.S.C. § 2254. He alleged that his Sixth
Amendment rights were violated by the Wisconsin court’s re‐
fusal to allow him to represent himself at trial, and later by
Bohach’s ineffective assistance of counsel. The district court
denied his petition and denied a certificate of appealability.
We granted a certificate of appealability on both contentions.
II
A
Jordan first argues that Wisconsin denied him his right un‐
der the Sixth and Fourteenth Amendments to represent him‐
self. See Faretta, 422 U.S. 806. We review the district court’s
denial of his habeas corpus petition de novo. Campbell v. Smith,
770 F.3d 540, 546 (7th Cir. 2014). Under the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), however, the
applicable legal standard is one that calls for great deference
to the state court. Where the state court has made a decision
on the merits, we may grant relief only if that decision was
“contrary to, or involved an unreasonable application of
clearly established Federal law” as determined by the Su‐
preme Court. 28 U.S.C. § 2254(d)(1).
We apply this standard to the decision of the last state
court to rule on the merits of the petitioner’s claim. Ylst v.
Nunnemaker, 501 U.S. 797 (1991). This may be a summary de‐
cision. See Harrington v. Richter, 562 U.S. 86, 99 (2011). Here,
the last decision on the merits was the one handed down by
the Wisconsin Court of Appeals in August 2005. Because that
No. 14‐3613 7
court explicitly adopted the trial court’s September 2004 or‐
der, we also consider the trial court’s order as part of the “last
reasoned opinion” of the Wisconsin courts. See Sitts v. Wilson,
713 F.3d 887, 891 (7th Cir. 2013).
Although the Wisconsin court came close to making an
unreasonable application of the Faretta line of cases, these de‐
cisions depend heavily on the facts before the court, and on
this record we cannot say that the state court crossed the line.
The question on which this case turns relates to the distinction
between competence to make decisions, and ability to handle
a trial. The Faretta rule has been around since 1975. See 422
U.S. at 834–36. In recognizing the right of self‐representation,
the Supreme Court said there that while a defendant’s waiver
of the right to counsel must be made “knowingly and intelli‐
gently,” that defendant’s “technical legal knowledge” is “not
relevant.” Id. at 835–36.
Wisconsin established its standard for waiving counsel in
Pickens v. State, 292 N.W.2d 601 (Wis. 1980). In State v. Klessig,
564 N.W.2d 716 (Wis. 1997), it confirmed that intervening U.S.
Supreme Court precedent had not required any change in
Wisconsin law. The Wisconsin Supreme Court took the posi‐
tion in Klessig, in some tension with Faretta, that “competency
to stand trial is not the same as competency to proceed pro se.”
Klessig, 564 N.W.2d at 726 (internal quotation marks omitted).
When determining whether to permit a defendant to repre‐
sent herself, the trial court must “consider factors such as ‘the
defendant’s education, literacy, fluency in English, and any
physical or psychological disability’ which may significantly
affect his ability to communicate a possible defense to the
jury.’” Id. at 724 (quoting Pickens, 292 N.W.2d at 611).
8 No. 14‐3613
The state trial court faithfully applied the Klessig standard.
Although it found Jordan was “alert and reasonably bright”
and of “average capability,” it determined that he could not
proceed pro se because “he lacked the capacity to present a
meaningful defense” or “effective[ly] represent[] himself.”
The first question is whether, as Jordan contends, this inquiry
is actually “contrary to” Faretta, as 28 U.S.C. § 2254(d)(1) uses
the term. Put differently, does Faretta flatly forbid an inquiry
into the defendant’s ability to represent himself once the court
has determined that the defendant is competent to waive his
right to counsel?
We would be inclined to agree with Jordan if Faretta were
the Supreme Court’s last word on the subject, but it is not. De‐
spite the statement in Faretta that a defendant’s technical legal
ability to represent herself is not relevant to the decision
whether to permit waiver of counsel, the Supreme Court has
not banned all inquiry into this subject. It has delineated some
ways in which states may limit the right to self‐representa‐
tion. For example, in Faretta itself the Court recognized that a
trial court may forbid a defendant from representing herself
if she is disruptive in the courtroom or engages in miscon‐
duct. 422 U.S. at 835 n.46. Later it held that a state court may
forbid a defendant from representing herself on direct appeal.
Martinez v. Ct. of Appeals of Cal., Fourth Appellate Dist., 528 U.S.
152, 163 (2000).
In Godinez v. United States, the Supreme Court elaborated
on what states may require of a defendant who wishes to rep‐
resent herself. 509 U.S. 389 (1993). There the Court held that
when a defendant wishes to enter a guilty plea pro se, due pro‐
cess does not require that she meet any higher level of com‐
petency beyond the competency to stand trial and to waive
No. 14‐3613 9
her right to a trial knowingly and intelligently. Id. at 402. But
the Court also noted, perhaps trimming Faretta a bit, that
“States are free to adopt competency standards that are more
elaborate” than the minimum standard the Constitution re‐
quires. Id. It did so, however, as part of a holding rejecting the
proposition that “the competency standard for pleading
guilty or waiving the right to counsel is higher than the com‐
petency standard for standing trial.” Id. at 391. It held that
there is only one competency standard. Thus, its comment
that states might wish to adopt more elaborate standards
must be understood as a comment about evidence, not a com‐
ment about the governing legal question. Whatever the stand‐
ard is, Godinez held that it applies across the board.
The Supreme Court then qualified Godinez in Indiana v. Ed‐
wards, in which it upheld Indiana’s requirement that a defend‐
ant who wishes to represent himself must have the “mental
capacity” to “conduct his trial,” which is a higher standard
than competency to stand trial. 554 U.S. 164, 174 (2008). In Ed‐
wards, the defendant (whose motion to represent himself was
denied) “suffered from schizophrenia,” which caused “delu‐
sions and … marked difficulties in thinking.” Id. at 168–69.
The Court held that the Constitution permits a state to limit
the self‐representation right for a defendant who “lacks the
mental capacity to conduct his trial defense unless repre‐
sented.” Id. at 174. This holding seems to have broken the
Godinez rule eschewing multiple competence standards for
multiple purposes. Although Edwards was decided two years
after Jordan’s criminal case became final on direct appeal in
2006, we may consider it here because Warden Hepp has
raised it. See Moore v. Anderson, 222 F.3d 280, 285 (7th Cir.
2000) (nonretroactivity only “favors the state’s interest in fi‐
nality” and thus the state may waive it).
10 No. 14‐3613
In Imani, we characterized Edwards as identifying “a nar‐
row class of cases in which a defendant may not be competent
to represent himself[.]” 2016 WL 3434673 at *5. There was no
evidence of such circumstances in Imani, where the trial judge
paid little heed to Imani’s level of education and placed heavy
weight on the rationality of Imani’s decision. Id. at *1–2. It is
permissible, for instance, to deny self‐representation to a de‐
fendant who “suffer[s] from mental illness or mental impair‐
ment.” Id. at *5. Imani also recognized, however, that there
would be “gray‐area” defendants. States may not resolve
doubts against self‐representation and remain faithful to
Faretta. In Imani, the defendant’s “abilities were close enough
to Faretta’s as to be indistinguishable.” Id. In that situation, we
found that the Wisconsin courts unreasonably applied Faretta
when they denied Imani his right to represent himself.
If it were up to us, we would find that Jordan’s Faretta
rights were violated. Unfortunately, a great many adults in
the United States are illiterate. The National Center for Edu‐
cation Statistics, which is in the Office of Educational Re‐
search and Improvement of the U.S. Department of Educa‐
tion, reported in 2002 that 21 to 23% of adults “demonstrated
skills in the lowest level of prose, document, and quantitative
proficiencies.” See U.S. DEP’T OF EDUC., Adult Literacy in Amer‐
ica, Executive Summary at xvi (2002), https://nces.
ed.gov/pubs93/93275.pdf. The numbers do not seem to be
much better now. See The U.S. Illiteracy Rate Hasn’t Changed in
10 Years, HUFFINGTON POST (Sept. 6, 2013), http://www.huff‐
ingtonpost.com/2013/09/06/illiteracy‐rate_n_3880355.html
[https://perma.cc/LK5S‐JDA6] (estimating that 14% of the
population, or 32 million adults, cannot read at all, and 21%
read below a fifth‐grade level) (referencing U.S. DEP’T OF
EDUC., 2012/2014 First Look National Supplement, 5–6 (2016),
No. 14‐3613 11
http://nces.ed.gov/pubs2016/2016039.pdf). It is hard to imag‐
ine a person with limited literacy navigating his or her way
through the court system without the assistance of a lawyer,
even though it is likely that the person would be able to help
his or her lawyer put on their defense. We see no hint that the
Supreme Court was talking about this vast population in Ed‐
wards; instead, it was addressing the more serious problem of
the mentally ill or mentally impaired person, who cannot han‐
dle matters himself and who needs a lawyer almost in the ca‐
pacity of a guardian.
In our case, Jordan demonstrated a good understanding of
his case, and he had devised a defense strategy that he wanted
to use—one that did not depend on written documents. That
may have been foolish, but it was no more foolish than the
approach taken by many who choose the self‐representation
route. With the same concern courts always feel when an un‐
sophisticated defendant insists on his Faretta rights, we would
say that he had such a right, and it was denied when the trial
court re‐visited its initial ruling.
But AEDPA does not permit us to apply our independent
assessment of this case. Instead, we must decide whether the
state court’s decision was so far beyond the pale that it was
“unreasonable.” See Richter, 562 U.S. at 103. The fact that the
Supreme Court itself recognized that certain forms of mental
disability deserved special consideration suggests that the ap‐
proach of the Wisconsin courts was not so utterly without
support that it cannot stand. Jordan’s problem went well be‐
yond the lack of knowledge of court procedure or an ability
to make strategic judgments. Despite his bravado, Jordan was
unlikely to be able to avoid confronting the written evidence
in his case—evidence that was functionally unavailable to
12 No. 14‐3613
him because of his near‐illiteracy. The state court thought that
Jordan could not put on a defense without another person’s
assistance, and that other person had to be a member of the
bar. We feel compelled by AEDPA to hold that this was not an
unreasonable interpretation of Faretta and Godinez, and thus
neither contrary to those decisions nor an unreasonable appli‐
cation of their holdings.
B
Jordan may also prevail on his Faretta theory if the Wis‐
consin court’s decision “was based on an unreasonable deter‐
mination of the facts in light of the evidence.” 28 U.S.C.
§ 2254(d)(2). He has attempted to meet that standard, but all
he has shown is that another court might have viewed the
facts differently, and that is not enough.
The trial court reached its factual conclusions based on Jor‐
dan’s own statements and the court’s observations of Jordan’s
reading ability. Jordan admitted that he read at a fourth‐grade
level. He read the police report aloud to the court with dismal
results, and acknowledged that he only “somewhat” under‐
stood it. He did not deny that he would be unable to use most
of the documents produced for trial; he said instead that the
practical absence of the documents would not hinder his abil‐
ity to present a defense. It was reasonable for the court to infer
that Jordan would not be able to use the documents, and that
this would prevent him from effectively representing himself.
This determination did not “lie[] against the clear weight of
the evidence.” See Ward v. Sternes, 334 F.3d 696, 704 (7th Cir.
2003) (explaining the § 2254(d)(2) standard) (citing Hall v.
Washington, 106 F.3d 742, 749 (7th Cir. 1997)).
No. 14‐3613 13
III
We now turn to Jordan’s ineffective‐assistance‐of‐counsel
claim. Once the court imposed Bohach on Jordan, Jordan had
the right to a performance that was sufficiently competent to
“function[] as the ‘counsel’ guaranteed … by the Sixth
Amendment.” See Strickland v. Washington, 466 U.S. 668, 687
(1984). Counsel is constitutionally deficient if her assistance
falls below “an objective standard of reasonableness” and
these errors “prejudice[] the defendant.” Id. at 687–88. This is
not an easy standard to satisfy. “Counsel is strongly pre‐
sumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment.” Id. at 690. Sufficient “prejudice” requires that
“there [be] a reasonable probability that, but for counsel’s un‐
professional errors, the result of the proceeding would have
been different.” Id. at 694. Section 2254(d)(1)’s deferential
standard of review of the state court’s decision, combined
with Strickland’s presumption that counsel acted reasonably,
leads our review to be “doubly” deferential toward the state
court’s decision on this claim. Richter, 562 U.S. at 105.
A
The Supreme Court has long held that due process, appli‐
cable to the states through the Fourteenth Amendment, re‐
quires fair legal procedure, and that “[a]mong these ‘legal
procedures’ is the requirement that the jury’s verdict be based
on evidence received in open court, not from outside
sources.” Sheppard v. Maxwell, 384 U.S. 333, 351 (1966); see also
Marshall v. United States, 360 U.S. 310, 313 (1959); Skilling v.
United States, 561 U.S. 358, 378–81 (2010) (out‐of‐court evi‐
dence in the form of press coverage can interfere with a de‐
fendant’s due process right to a fair trial). In Parker v. Gladden,
14 No. 14‐3613
385 U.S. 363 (1966) (per curiam), the Court granted habeas cor‐
pus relief to an Oregon prisoner because the bailiff who was
escorting the jury expressed his own opinions about the de‐
fendants’ guilt in separate statements to at least two jurors.
One aspect of the need to confine the jury to the evidence
that was properly admitted to trial is the rule providing that
a prosecutor may not urge a jury to base its decision on infor‐
mation known to the prosecutor but not presented at trial. See
Berger v. United States, 295 U.S. 78, 88 (1935). Although Berger
itself involved a federal prosecution, there is no meaningful
distinction between the Fifth Amendment’s due process
clause and that of the Fourteenth for this purpose. The Court
was concerned that the prosecutor there had invited the jury
to rely on evidence within the personal knowledge of the
prosecutor—evidence that went beyond the record. After re‐
producing excerpts from the improper argument, the Court
said “[i]n these circumstances prejudice to the cause of the ac‐
cused is so highly probable that we are not justified in assum‐
ing its nonexistence.” Id. at 89. This is the language of due pro‐
cess, not mere supervision.
The constitutional basis of this concern is not diminished
by the fact that vouching, like almost all trial error, is subject
to the plain error rule. See United States v. Young, 470 U.S. 1,
18 (1985). The Court expresses its concerns about vouching in
constitutional terms: “Due process requires that the accused
receive a trial by an impartial jury free from outside influ‐
ences.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 553 (1976).
The jury may not decide the case based on evidence that never
made it into the record, either real or imagined. The right to a
trial by jury includes the right to the jury’s own decision, not
No. 14‐3613 15
a decision dictated or unduly influenced by the prosecutor.
Young, 470 U.S. at 18–19 (citing Berger, 295 U.S. at 88–89).
In Jordan’s case, the prosecutor had this to say during his
closing argument:
Now, the big question here is the credibility.
Who do you believe? … Somebody’s lying. Who
is it? [The detective’s] going to put her whole ca‐
reer and her future on the line for this case? She
does this everyday. She’s investigating homi‐
cide cases everyday for years. Who has the most
to lose based on your verdict in this case? Her
or him? … It boils down to credibility.
The prosecutor then repeated, “[w]ho has the most to lose
here? Her or him? Keep that in mind when you evaluate his
testimony.”
This is a textbook case of improper vouching. The prose‐
cutor engaged in one of the forms of argumentation that the
Supreme Court repeatedly has identified as improper: imply‐
ing that the jury should believe a witness based on evidence
that was not presented to the jury. See Berger, 295 U.S. at 88;
Young, 470 U.S. at 18. By arguing that the detective would lose
her job by giving false testimony, the prosecutor “convey[ed]
the impression that evidence not known to the jury”—
namely, that the detective would face career repercussions for
false testimony—“supports the charges against the defend‐
ant.” See Young, 470 U.S. at 18. The prosecutor left no room
for doubt about his message: he stated three times that she has
more to lose than the defendant, and is therefore more likely
to be telling the truth.
16 No. 14‐3613
As Young recognizes, this is the type of misconduct that
the Supreme Court forbade in Berger. There, a prosecutor
stated his personal opinion that a witness was lying about
whether she knew the defendant. The prosecutor implied that
he knew the witness was lying; that evidentiary rules did not
permit the jury to hear that evidence; and that the jury should
instead just trust him. Berger, 295 U.S. at 86–88. The Supreme
Court pinpointed the troubling aspect of this argument: “The
jury was thus invited to conclude that the witness … knew
[the defendant] well but pretended otherwise; and that this
was within the personal knowledge of the prosecuting attor‐
ney.” Id. at 88. The same concern arises in Jordan’s case. The
prosecutor relied on evidence not in the record but that ap‐
peared to be within his personal knowledge: that the detective
would lose her job if she wasn’t telling the truth.
Due process therefore forbids a prosecutor to urge a jury
to rely on evidence that is not in the record, whether that evi‐
dence is from newspaper accounts, the Internet, or the prose‐
cutor’s own mouth. It requires the jury to be left alone to do
its own job, evaluating the evidence the trial judge admitted,
and coming to its own independent conclusion (as opposed
to one dictated by the prosecutor).
In Jordan’s trial, Bohach failed to object to any of the pros‐
ecutor’s improper statements. Our first question is whether
that failure rendered his performance ineffective under Strick‐
land. The Supreme Court held in Wiggins v. Smith, 539 U.S. 510
(2003), that “the deference owed to … strategic judgments”
depends on “the adequacy of the investigations supporting
those judgments.” Id. at 521. If counsel made a choice after
“thorough investigation of law and facts relevant to plausible
No. 14‐3613 17
options,” that choice is “virtually unchallengeable,” id. (cita‐
tion omitted), but a decision made for no strategic reason at
all does not command any deference.
The Warden suggests one possible legitimate explanation
for Bohach’s failure to object to the improper vouching: per‐
haps, he argues, Bohach remained silent in order to avoid
drawing the jury’s attention to the prosecutor’s statements. If
that were so, then Bohach’s performance might not have been
objectively unreasonable conduct. The problem is that there is
no evidence in the record to support the Warden’s specula‐
tion. Apparently no one asked Bohach why he did not object.
And the Warden’s counsel conceded at oral argument that the
state court never held a hearing or made a factual finding on
this issue. (In Wisconsin this is known as a Machner hearing,
after State v. Machner, 285 N.W.2d 905 (Wis. Ct. App. 1979).
The post‐conviction court held a Machner hearing on a differ‐
ent issue in 2009, but did not touch this one). Indeed, the war‐
den’s counsel admitted that were this issue before a state
court, a Machner hearing would be necessary.
B
Despite these indicia of deficient performance, we cannot
say on this record that Jordan has (or has not) satisfied this
part of the Strickland inquiry. Moreover, even if he can show
deficient performance, he must also demonstrate prejudice.
Before returning to the performance question, we therefore
turn to the prejudice issue. (If Jordan cannot show prejudice,
there would be no need to resolve the performance question,
as both must be shown in order to prevail under Strickland.
466 U.S. at 687.)
18 No. 14‐3613
A defendant is prejudiced when there is “a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strick‐
land, 466 U.S. at 694. Because the state court addressed the
question of prejudice (albeit briefly), we apply AEDPA’s def‐
erential standard to this question.
The Supreme Court has stated that when a prosecutor im‐
properly vouches for a witness’s credibility, and the case is
not otherwise a strong one, “prejudice to the cause of the ac‐
cused is so highly probable that we are not justified in assum‐
ing its nonexistence.” Berger, 295 U.S. at 89. This is such a case.
On this record, the prosecutor’s improper vouching for the
credibility of one of the detectives went to the heart of the
matter. Had defense counsel taken steps to cure that error,
there is at least a “reasonable probability”—that is, “a proba‐
bility sufficient to undermine confidence in the outcome,” see
Richter, 562 U.S. at 104—that the result of the proceeding
would have been different.
We recognize that the trial court instructed the jury that
“the words of the attorneys are not the evidence in this case
and their arguments and conclusions that they’re entitled to
express at this stage are not evidence and must not be consid‐
ered by you as evidence.” But this instruction did not identify
the prosecutor’s remarks as improper statements that should
be disregarded, for the obvious reason that those remarks had
not yet been made. Nor was this or any other instruction
given contemporaneously with, or immediately after, the
prosecutor’s inappropriate comments. We cannot assume
that a prompt objection, followed by a curative instruction,
would have been ineffective; indeed, a prompt objection
would have cut off a good part of the vouching. When the
No. 14‐3613 19
whole case turns on witness credibility, standing silent while
the state vouches for its witnesses cannot be justified by reli‐
ance on a generic, non‐contemporaneous instruction. See
Donnelly v. DeChristoforo, 416 U.S. 637, 644 (1974) (“some oc‐
currences at trial may be too clearly prejudicial for such a cu‐
rative instruction to mitigate their effect”); see also Goodman
v. Bertrand, 467 F.3d 1022, 1030–31 (7th Cir. 2006); Earls v.
McCaughty, 379 F.3d 489, 495–96 (7th Cir. 2004); Cossel v. Mil‐
ler, 229 F.3d 649, 655–56 (7th Cir. 2000); Hodge v. Hurley, 426
F.3d 368, 385 (6th Cir. 2005). The state trial court’s finding
(adopted by the Court of Appeals) that counsel’s failure to ob‐
ject was not prejudicial is an unreasonable finding in the con‐
text of this case.
C
Because we have found prejudice, we must return to the
performance question. As we have indicated, this record does
not reveal whether Bohach had any strategic reason for his
silence. The answer to this question may dictate the result for
Jordan’s petition, and so we must remand for an evidentiary
hearing under 28 U.S.C. § 2254(e)(2)(A)(ii). Section
2254(e)(2)(A)(ii) permits the district court to conduct an evi‐
dentiary hearing in limited circumstances: namely, when the
state court record does not contain sufficient factual infor‐
mation to adjudicate a claim, and “the factual predicate could
not have been previously discovered through the exercise of
due diligence.” Here, the state court record does not contain
this information, nor could the factual predicate have been
discovered previously because the state court never held a
Machner hearing. Jordan therefore satisfies the requirements
of section 2254(e)(2)(A)(ii).
20 No. 14‐3613
This procedure does not run afoul of Cullen v. Pinholster,
563 U.S. 170 (2011). In Cullen, the Supreme Court held that
“review under § 2254(d)(1) is limited to the record that was
before the state court that adjudicated the claim on the mer‐
its.” Id. at 181. We already have gone through the (d)(1) pro‐
cess, which led us to conclude that in the absence of evidence
to support Warden Hepp’s counterargument, the Wisconsin
Court of Appeals unreasonably applied Strickland when it
held that Bohach’s performance did not fall below an objec‐
tive standard of performance. That alone, however, does not
entitle Jordan to relief. The Warden gets one more chance, un‐
der (e)(2), to demonstrate that Bohach had a strategic reason
for his failure to object to the vouching.
Holding a hearing under section 2254(e)(2) in this situa‐
tion is what Cullen envisioned. As Justice Breyer explained in
his separate opinion, “if the state‐court rejection assumed the
habeas petitioner’s facts (deciding that, even if those facts were
true, federal law was not violated), then (after finding the
state court wrong on a [§ 2254(d)] ground), a[] [§ 2254(e)]
hearing might be needed to determine whether the facts al‐
leged were indeed true.” Cullen, 563 U.S. at 205 (Breyer, J.,
concurring in part in dissenting in part); see also Campbell v.
Reardon, 780 F.3d 752, 772 (7th Cir. 2015) (explaining when a
§ 2254(e) hearing is appropriate after Cullen); Taylor v.
Grounds, 721 F.3d 809, 824–25 (7th Cir. 2013) (same). As War‐
den Hepp’s counsel acknowledged at oral argument, the state
court never made any factual finding on this question to
which we could defer. Because the petitioner has alleged facts
that would make Bohach’s conduct objectively unreasonable
under Strickland and the state’s contrary ruling unreasonable
under section 2254(d)(1), the district court must conduct a
No. 14‐3613 21
hearing under section 2254(e) to determine if these facts are
true.
IV
Jordan was caught between the horns of a dilemma: he
was denied the right to represent himself, and then the court‐
appointed counsel he was forced to accept was (he says) sub‐
par. We AFFIRM the district court’s denial of Jordan’s petition
for habeas corpus on his self‐representation claim. We REVERSE
and REMAND on Jordan’s ineffective‐assistance‐of‐counsel
claim. We instruct the district court to hold a hearing under
28 U.S.C. § 2254(e)(2) to allow the parties to present evidence
about whether Bohach had a strategic reason for failing to ob‐
ject to the prosecution’s improper vouching for the witness’s
credibility.