In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐2122
WILLIAM HINESLEY, III,
Petitioner‐Appellant,
v.
WENDY KNIGHT, Superintendent,
Correctional Industrial Facility,
Respondent‐Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:14‐cv‐1097‐JMS‐TAB — Jane E. Magnus‐Stinson, Judge.
ARGUED APRIL 13, 2016 — DECIDED SEPTEMBER 13, 2016
Before EASTERBROOK, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Following a bench trial in Indiana
state court, William Hinesley, III, was convicted of molesting
his 13 year‐old former foster daughter, V.V. After exhausting
his state court remedies, Hinesley petitioned for a writ of
habeas corpus, contending that his trial counsel deprived him
of effective representation when he allowed the inculpatory
2 No. 15‐2122
out‐of‐court statements of the two principal witnesses against
him into evidence without objection and likewise posed no
objection to the admission of two statements in which wit‐
nesses vouched for V.V.’s credibility. Hinesley also raised an
argument of cumulative ineffectiveness based on these and
other purported errors on the part of his lawyer. The district
court denied his petition. Hinesley v. Knight, No. 1:14‐cv‐1097‐
JMS‐TAB, 2015 WL 1969643 (S.D. Ind. Apr. 29, 2015). We
affirm.
I.
Because there was no physical evidence of Hinesley’s guilt,
the State’s case rested almost entirely on the testimony of the
victim, V.V., and, to a lesser extent, her (former) foster brother,
William Hinesley, IV, who was known as Billy. Prior to trial,
both witnesses had made statements that conflicted with the
initial accounts they had given to the investigating detective.
It had also become known that V.V. and Billy were in a sexual
relationship with one another at the time of the charged offense
and, because that relationship was unlawful (given their
respective ages), they wanted to keep the relationship hidden.
When the case came to trial, it was defense counsel’s strategy
to allow all of the prior statements V.V. and Billy had made
into evidence without objection or limitation in order to lay
bare the inconsistencies in those statements and to argue that
neither witness was credible in view of the conflicts. The State
understood that this was the defense strategy and at trial
elicited the initial, inculpatory out‐of‐court statements of V.V.
and Billy at some length, with no objection by the defense.
Defense counsel also made no objection to the admission of
statements by the investigating detective and by Billy that they
No. 15‐2122 3
believed V.V.’s account. The defense took every opportunity to
highlight the ways in which V.V. and Billy subsequently had
changed their stories and to suggest that the investigation of
V.V.’s allegations was inadequate. The trial judge nonetheless
convicted Hinesley, finding that V.V.’s testimony was credible.
His counsel’s strategy having failed, Hinesley now contends
that his attorney was ineffective for permitting the State to
elicit the out‐of‐court statements of V.V. and Billy as substan‐
tive evidence, rather than eliciting the statements himself on
cross‐examination as impeachment, and in allowing the two
instances of vouching by the State’s witnesses. These and
certain other omissions form the basis for a separate assertion
of cumulative ineffectiveness.
We begin with a summary of the facts relevant to
Hinesley’s conviction. V.V. had been taken into the Hinesley
family as a foster child. V.V. was happy in the Hinesley home,
but Hinesley’s wife Sharon eventually concluded that the
placement was not a good one, as there was some tension
between herself and V.V. In the autumn of 2008, V.V. was
removed from the Hinesley household and placed with
Hinesley’s parents. But V.V. continued to periodically visit
Hinesley and his family. (She is thus frequently described in
the record as Hinesley’s foster daughter notwithstanding the
change in placement.) V.V. was present for such a visit in the
Hinesley home on the evening of Friday, January 16, 2009,
when the assault underlying Hinesley’s conviction occurred.
The facts forming the basis for Hinesley’s conviction were
summarized by the Indiana Court of Appeals in affirming the
conviction on direct appeal:
4 No. 15‐2122
On the night of January 16, 2009, the Hinesley
family was at home in Paragon, Indiana.
Hinesley, his son, William J. Hinesley, IV
(“Billy”), who was twenty years old at the time,
a foster daughter, V.V., who was thirteen years
old at the time, and others were present.
Eventually, Hinesley and V.V. were the only
ones awake. They sat on a couch in the living
room and talked as they watched a movie. Next,
Hinesley got up and went into the kitchen.
When he returned, he approached V.V. and
pulled down her pants and underwear. Hinesley
got on top of V.V. and put his penis in her
vagina. After a short period of time, V.V. tried to
push Hinesley away, and he got up and left the
room. V.V. got up and pulled up her pants.
Meanwhile, Billy was going to the kitchen to get
a glass of water. He encountered V.V., who told
him that she had just had sex with Hinesley.
Billy sent V.V. to the master bedroom while he
woke his sister, S.H., and had her go into the
master bedroom with him and V.V. In the
morning, Billy contacted his uncle, who was a
police officer in Mooresville, Indiana, and the
local police were contacted.
Hinesley v. State, 957 N.E.2d 217 (table), 2011 WL 5117056, at *1
(Ind. Ct. App. Oct. 27, 2011) (unpublished).
V.V. and Billy both gave videotaped statements the
following morning to Morgan County Sheriff’s Detective Dan
No. 15‐2122 5
Downing. V.V. described the events as recounted above. Billy
indicated in his statement that he had approached the living
room just as V.V. was pulling her pants up. He asked V.V.,
“[D]id I see what I thought I saw?” and V.V. nodded and told
him that he had. State Ex. 2 at 12:04. It was then that V.V.
informed him that Hinesley had sexually assaulted her.
What neither V.V. nor Billy disclosed to Downing was that
they were engaged in a sexual relationship with one another.
In fact, although she did not yet know it, V.V. was pregnant
with Billy’s child (she gave birth in August 2009) at the time of
the assault by Hinesley. The relationship between V.V. and
Billy is described as consensual, but given their respective
ages, it constituted child molestation as a legal matter. Billy
would eventually plead guilty to that offense once the
relationship came to light.
Subsequently, both V.V. and Billy made statements that
were either wholly or partially inconsistent with what they had
told Downing. One week after the incident, V.V. told
Hinesley’s mother that she had made the whole thing up.
When later deposed by defense counsel in advance of trial,
V.V. acknowledged the recantation but then testified that
Hinesley had, in fact, assaulted her. But she also professed
uncertainty as to certain key details of the assault, including
whether Hinesley had actually placed his penis into her
vagina. Billy was also deposed prior to trial, and during his
deposition he said that he could no longer remember whether
he had seen V.V. pulling up her pants in the immediate
aftermath of the incident.
6 No. 15‐2122
As we have said, there was no physical evidence
confirming V.V.’s account of the assault. Both V.V. and
Hinesley were examined on the morning after the assault, but
in neither case was the presence of DNA from the other
individual detected.1 On the other hand, Hinesley had shaved
the pubic hair from his body at some point prior to his exami‐
nation (he would later testify that he and his wife both did this
as a matter of routine). Also, during a search of the Hinesley
home on the morning after the incident, police discovered a
pair of still‐wet pajama pants and underwear in the dryer by
themselves, despite there being dirty clothing piled in the
hallway nearby and throughout the house. Hinesley had been
wearing pajama pants and underwear the previous evening,
although police were unable to determine whether the pajamas
and underwear in the dryer were the ones Hinesley had been
wearing.
On the morning of trial, the State offered to drop the
multiple child molestation charges against Hinesley if he
agreed to plead guilty to a misdemeanor charge of battery,
with credit for the time Hinesley had already served in jail
prior to trial along with a period of probation, and with no
1
Oddly, the written summary of V.V.’s examination indicated that her
hymen was intact. That report was not introduced into evidence at trial,
possibly because Hinesley’s trial counsel never saw the report. (Neither the
prosecutor nor defense counsel could later recall whether the report had
been possessed by the State and produced in discovery.) In this appeal,
Hinesley has cited counsel’s apparent failure to obtain a copy of the
report—and in any event, his failure to introduce it at trial—not as a
freestanding instance of purported ineffectiveness but rather as one of the
grounds for his argument of cumulative ineffectiveness.
No. 15‐2122 7
requirement that he register as a sex offender. Hinesley
rejected the offer against his attorney’s advice.
The case proceeded to trial on three child molestation
charges: (1) that Hinesley had engaged in sexual intercourse
with a child less than 14 years of age, in violation of Indiana
Code § 35‐42‐4‐3(a)(1), then a Class A felony2; (2) that he had
engaged in deviate sexual conduct with a child under 14 years
of age, in violation of the same statute, again a Class A felony;
and (3) that he had touched or fondled a child under 14 years
of age with intent to arouse or satisfy the sexual desires of
either himself or the child, in violation of § 35‐42‐4‐3(b), a Class
C felony. The State previously had dismissed a fourth charge—
that Hinesley had touched or fondled his biological daughter,
S.H. The parties agreed that the case would be tried to the
bench.
As we have mentioned, it was defense counsel’s strategy to
elicit all of the various pre‐trial, out‐of‐court statements that
both V.V. and Billy had made so as to establish the changing
nature of their accounts and to suggest that they were not
credible as to the alleged assault by Hinesley. Defense counsel
thus posed no objection when, during the State’s case, the
prosecution asked both Downing and Billy to recount certain
out‐of‐court statements that both V.V. and Billy had made. We
shall return to these statements after we first summarize the
trial testimony of witnesses Downing, V.V., and Billy.
Downing was the first of these witnesses to testify for the
State. He described his interviews of both V.V. and Billy, and
2
The classification system for felonies in Indiana has since changed.
8 No. 15‐2122
recounted in full what they had told him about the assault.
During his testimony, the video recording of Billy’s 30‐minute
interview was played for the court in its entirety.
V.V. was the second of these witnesses to take the stand.
She testified, consistently with her original statement to
Downing, that after she and Hinesley were left alone in the
living room of the Hinesley residence on the evening of
January 16, 2009, the two of them watched a movie, with V.V.
resting her head in Hinesley’s lap. At some point, Hinesley had
gotten up and gone into the kitchen. When he returned to the
living room, he pulled down her pajama pants and underwear,
placed himself on top of her, pinned down her shoulders,
penetrated her vagina with his penis, and began to have
intercourse with her. Stunned and not knowing at first what to
do, V.V. after a moment “got a hold of [her]self,” told Hinesley
she wanted to go to bed, shoved him off of her, and then
pulled up her pants. Tr. 117. As V.V. prepared to leave the
room, she saw Billy in the nearby hallway, and he beckoned
her over to him with a gesture. V.V. testified that Billy was
“freaking out kind of, like he was upset and mad,” Tr. 118, and
he asked her if he had just seen what he thought he saw. She
told him yes. At that point, he directed her to the master
bedroom, where she informed Billy, using slang terminology,
that Hinesley had sexually assaulted her.
On cross‐examination, V.V. was confronted with the
multiple statements she had made prior to trial that were
inconsistent with her testimony (and her original interview
with Downing). She acknowledged the recantation she had
made to her foster grandmother one week after the incident;
that recantation, she said, was a lie. She acknowledged that at
No. 15‐2122 9
her deposition, she had expressed an inability to recall whether
Hinesley had placed his penis into her vagina. At first, she
confirmed that she was uncertain about this point at the time
of her deposition. Ultimately, however, she conceded that her
professed inability to recall was a lie. She acknowledged
having lied about various other points during her deposition.
She also admitted that she was engaged in a sexual relation‐
ship with Billy at the time of the assault and that she knew it
was wrong.
Billy reiterated at trial that V.V. told him his father had
sexually assaulted her, but he professed uncertainty as to
whether he had seen V.V. pulling up her pants as he had told
Downing he had on the day after the incident. Although he
recalled what he had told Downing, Billy testified that “[a]t
this point in time I do not remember what I saw.” Tr. 170.
When pressed on that point by defense counsel, he allowed
that he “could have” lied about that to Downing, Tr. 179, and
agreed with Hinesley’s attorney that “there’s a good chance
that [he] didn’t see anything at all,” Tr. 178. He acknowledged
that when he was interviewed by the police, he knew that he
himself could be charged criminally for his conduct with V.V.,
was afraid of being exposed, and that he had lied to the police
about his relationship with V.V. Billy was otherwise a hesitant
witness who repeatedly claimed a lack of recollection as to
various points and often gave inaudible answers to questions.
Hinesley himself testified in his own defense. He denied
that he had ever molested V.V. He further denied that he had
ever been alone with V.V. on the night in question.
10 No. 15‐2122
Having summarized the testimony of the principal wit‐
nesses at Hinesley’s trial, we now pause to focus on certain of
the out‐of‐court statements that came into evidence while
Downing and Billy were on the witness stand. These are the
inculpatory statements that form the basis for Hinesley’s first
(and principal) argument that his trial counsel was ineffective.
Downing’s summary of V.V.’s interview
As we have noted, Downing summarized the interviews he
conducted of both V.V. and Billy on the morning after the
assault. With respect to his interview of V.V., Downing
testified, “[V.V.] then stated that [Hinesley] made penetration
into her vaginal area[,]” and similarly, “At that point in time
she stated that Mr. Hinesley told her to pull her pants down, at
which point in time he inserted … his penis into her vagina.”
Tr. 25.
Downing also reiterated later in his testimony that V.V. had
advised him that the assault by Hinesley involved “actual
penetration.” Tr. 28. (We note that V.V.’s interview, like Billy’s,
was videotaped, but the videotape of her interview was not
played at trial.)
Downing’s summary of Billy’s interview
Summarizing Billy’s original statement, Downing testified
in relevant part that “[Billy] asked [V.V.] if he seen what he
thinks he … or if he seen what he thought he had saw, and
[V.V.] said, yes.” Tr. 18.
Billy’s videotaped statement
As we have noted, the videotape of Billy’s interview with
Downing was played during Downing’s testimony. Hinesley
No. 15‐2122 11
highlights two statements from that interview. First, Billy
recounted that upon entering the living room, “I asked [V.V.].
All I said was … did I see what I thought I saw? She nodded
and said yes.” State Ex. 2 at 12:04. Second, in describing his
follow‐up conversation with V.V., Billy said, “I guess I asked
her did he touch you in some spot. She said yes. And … she
told me that he entered her.” State Ex. 2 at 12:39.
Billy’s testimony as to what V.V. told him
Finally, at trial, Billy testified that “[V.V.] told me that they
had sexual intercourse.” Tr. 194.
These out‐of‐court statements (some of which constituted
hearsay within hearsay) were presumptively inadmissible for
the truth of the matters asserted therein. See Ind. R. Evid.
801(c), 802. The prosecutor testified at Hinesley’s post‐convic‐
tion hearing that she understood the statements to be admissi‐
ble, at least in part, in order to explain the course of Downing’s
investigation. But see Craig v. State, 630 N.E.2d 207, 210‐11 (Ind.
1994) (out‐of‐court statements made to police offered to
explain course of investigation lack relevance when the defense
does not dispute what investigating authorities were told or
the propriety of the steps they took); see also Maxey v. State,
730 N.E.2d 158, 161‐62 (Ind. 2000). However, the prosecutor
also testified that based on her pre‐trial discussions with
defense counsel, she understood it would be the defense
strategy to elicit and/or allow the admission of these same out‐
of‐court statements in order to highlight the inconsistencies
and to challenge the credibility of V.V. and Billy. In any case,
Hinesley’s position is that once the statements were elicited
without objection, the trial judge as the factfinder was free to
12 No. 15‐2122
consider them as substantive evidence for any purpose. See
Marcum v. State, 725 N.E.2d 852, 863 (Ind. 2000) (in examining
trial record for sufficiency of evidence supporting defendant’s
conviction, reviewing court may consider otherwise inadmissi‐
ble evidence admitted without objection as substantive
evidence) (quoting Humphrey v. State, 680 N.E.2d 836, 840 (Ind.
1997)).
In addition to the various out‐of‐court statements, there
were two instances in which the State’s witnesses expressed
their opinion as to the credibility of V.V. Downing was the
source of one of these opinions and Billy, in his videotaped
statement to Downing, was the source of the other. In neither
instance did defense counsel raise an objection to the relevant
statement, and as we discuss below, Hinesley asserts that the
failure to object allowed these two witnesses to improperly
vouch for V.V.’s credibility. Here are the two statements in
question:
Downing. In the course of Downing’s testimony, the State
at one point asked Downing to describe V.V.’s demeanor
during the interview on the morning after the assault.
Downing responded:
Relatively childlike. She was very
protected, very guarded. She acted
much younger than … than her
physical age. But she seemed very
believable. I didn’t see any reason
not to believe her statements, espe‐
cially due to the fact they were
corroborated by … by Billy.
No. 15‐2122 13
Tr. 23.
Billy. Billy’s statement as to V.V.’s credibility was uttered
in the course of his videotaped interview rather than during
his trial testimony. Near the end of that interview, Billy had
remarked to Downing: “I don’t believe she made this up.”
State’s Ex. 2 at 28:52.
At the conclusion of the State’s case, the court dismissed
two of the three charges against Hinesley—the deviate sexual
conduct charge and the touching or fondling charge. The State
had conceded that there was no evidence to support the former
and that the latter was based solely on V.V.’s testimony that
intercourse had occurred.
At the conclusion of the defense case (there was no rebuttal
by the State), and after hearing closing arguments, the judge
convicted Hinesley on the Class A felony charge that he had
molested V.V. The judge remarked that defense counsel had
done “an excellent job” in pointing out the inconsistencies in
the various statements of the State’s witnesses. Tr. 277. How‐
ever, the judge went on to note that in opting for a bench trial,
the parties had “left it in [her] bailiwick” to make credibility
determinations, Tr. 278, and she expressly found V.V.’s
testimony to be credible. She later sentenced Hinesley to a
prison term of 30 years, 5 of which are to be served as proba‐
tion.
After his conviction was affirmed on direct appeal,
Hinesley sought post‐conviction relief, alleging principally that
his trial counsel had been ineffective in various respects. As
relevant here, he contended that counsel erred in allowing the
prior out‐of‐court statements of both V.V. and Billy into
14 No. 15‐2122
evidence without objection or limitation and in allowing both
Downing and Billy to vouch for V.V.’s credibility. Hinesley’s
petition was assigned to the same judge who had presided
over the trial and convicted him. She convened an evidentiary
hearing on the petition, at which Hinesley’s trial counsel,
Daniel Vandivier, testified. Vandivier explained that it was the
defense theory that V.V. and Billy, for ulterior reasons (includ‐
ing the effort to hide their own relationship), had fabricated the
alleged assault. In pursuit of that theory, it was Vandivier’s
goal to highlight all of the inconsistencies in the various
statements that V.V. and Billy had given about the assault.
Toward that end, Vandivier opted to forego any hearsay
objections when the State’s witnesses were asked to repeat
certain of these out‐of‐court statements. As to the vouching,
when specifically confronted at the hearing with Downing’s
testimony regarding V.V.’s credibility, Vandivier did not have
a specific recollection as to why he did not object to that
testimony; but he indicated that he may have withheld
objection in order to argue that Downing gave unquestioning
acceptance to V.V.’s account from the start and consequently
never conducted an adequate investigation into what did or
did not occur. He also believed that Downing’s observation
that V.V.’s statements were corroborated by Billy rendered
Downing’s credibility assessment vulnerable, given that Billy
no longer stood behind his initial statement that he saw V.V.
pulling her pants up after the assault.
The trial judge denied Hinesley’s request for post‐convic‐
tion relief. The trial court found that “Mr. Vandivier’s failure
to object to hearsay evidence from the various witnesses
during the trial was a trial strategy and was reasonable under
No. 15‐2122 15
the unique circumstances of this case[.]” R. 14‐4 at 60 ¶ 11. The
court added that regardless of any hearsay admitted into
evidence, its own determination that V.V. was a credible
witness and that she testified truthfully regarding the assault
was sufficient to uphold Hinesley’s conviction regardless of
any hearsay admitted into evidence without objection. R. 14‐4
at 60 ¶ 12. (The court did not expressly address the vouching
statements in her findings.)
The Indiana Court of Appeals affirmed. Hinesley v. State,
999 N.E.2d 975 (Ind. Ct. App. 2013). With respect to the out‐of‐
court statements that were not objected to, the court pointed
out that “Hinesley concedes that the hearsay evidence was
admissible for impeachment purposes, and therefore the
evidence was going to be admitted in one form or another.” Id.
at 984. The court found no error in the trial court’s conclusion
that defense counsel’s decision to allow the statements into
evidence without limitation as part of a broader strategy to lay
out all of the inconsistencies in the statements made by V.V.
and Billy was a reasonable trial strategy. Id. It pointed out that
counsel’s strategy may have been partially successful to the
extent that the trial judge had dismissed the other two child
molesting counts. Id. As to the vouching, the court noted that
although Vandivier was not able to specifically explain his
reasons for not objecting, courts typically do not insist that
counsel confirm each aspect of their trial decisions. Id. at 985.
The court found that Vandivier’s decision not to object to the
vouching was consistent with his overall trial strategy “and
was not unreasonable under the circumstances.” Id. It added
that because the case had been tried to the bench, the usual
concern regarding the influencing that vouching might have
16 No. 15‐2122
upon on the jury was not present. Id. In any event, the court
was not convinced that the vouching prejudiced Hinesley.
“[T]he record reveals that the two statements were isolated and
not pervasive and did not affect the outcome of the trial. We
are unpersuaded that but for counsel’s failure to object to the
alleged improper vouching statements, there is a reasonable
probability that the verdict would have been different.” Id. at
985‐86.
Finally, the court disposed of Hinesley’s additional allega‐
tion of cumulative ineffectiveness—based on the foregoing and
other omissions—on the ground that he had not established
prejudice. The court noted that Indiana’s judicial temperance
doctrine presumes that a trial judge sitting as the factfinder
knows the law and relies solely on relevant and probative
evidence that is properly before the court in rendering his
decision. Id. at 987 (citing Konopasek v. State, 946 N.E.2d 23, 28
(Ind. 2011), and Conley v. State, 972 N.E.2d 864, 873 (Ind. 2012)).
In the court’s view, Hinesley had not rebutted that presump‐
tion. The trial judge, in denying Hinesley’s post‐conviction
petition, indicated that she had found V.V. credible in her
account of the offense regardless of any hearsay that Vandivier
had allowed into evidence without objection. Id. The fact that
she dismissed two of the three counts against Hinesley bore
her out, given that the only evidence supporting those charges
was found in Downing’s testimony as to what V.V. had told
him. Id. at 987‐88. And although the judge did not similarly
disclaim any reliance on the vouching statements, the appellate
court found no reason to believe that she had. Id. at 988. In this
case, there was no person better situated to assess whether
Hinesley had been harmed by his trial counsel’s strategy than
No. 15‐2122 17
the trial judge herself. The fact that she found no reasonable
probability that the trial might have turned out differently had
counsel pursued a different strategy was entitled to a greater
than usual degree of deference, in the appellate court’s view.
Id.
Hinesley sought review in the Indiana Supreme Court, but
that court denied his petition for transfer. Hinesley v. State,
7 N.E.3d 933 (Ind. May 1, 2014).
Hinesley then petitioned for relief in the district court
pursuant to 28 U.S.C. § 2254. The district court denied his
petition. 2015 WL 1969643. In relevant part, the court deter‐
mined that the state courts had not unreasonably applied
Supreme Court precedent in rejecting Hinesley’s ineffective‐
ness claim as to the uncontested admission of hearsay and as
to the vouching remarks by Downing and Billy. Id. at *3‐*4.
“[T]he Indiana Court of Appeals ‘took the constitutional
standard seriously and produced an answer within the range
of defensible positions.’” Id. at *4 (quoting Mendiola v. Schomig,
224 F.3d 589, 591 (7th Cir. 2000)). The court found that it was
precluded from considering the resolution of Hinesley’s
allegation of cumulative ineffectiveness, as that claim was
procedurally defaulted. Id. at *3.
II.
Hinesley’s appeal pursues each of the three iterations of
ineffectiveness that we have mentioned: that his counsel, by
voicing no objection to the out‐of‐court statements of V.V. and
Billy, improperly allowed those statements into evidence
without limitation; that his counsel likewise allowed Downing
and Billy to vouch for V.V.’s credibility without objection; and
18 No. 15‐2122
finally that these and certain other omissions cumulatively
deprived Hinesley of his right to the effective assistance of
counsel. We review the district court’s decision to deny relief
on Hinesley’s claim of ineffective assistance de novo. E.g., Ruhl
v. Hardy, 743 F.3d 1083, 1090 (7th Cir. 2014).
Like the district court, we must observe the constraints of
section 2254 in evaluating the claim of ineffective assistance of
counsel. As relevant here, the statute precludes a federal court
from granting relief in habeas unless the state court’s resolu‐
tion of the claim “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[.]” § 2254(d)(1). There can be no contention that
the Indiana appellate court—the last state court to address
Hinesley’s claim on its merits—resolved his ineffectiveness
claim in a manner “contrary” to clearly established federal law:
the court recognized Strickland v. Washington, 466 U.S. 668,
104 S. Ct. 2052 (1984), as the controlling precedent and applied
its familiar two‐pronged framework. See Bell v. Cone, 543 U.S.
447, 452‐53, 125 S. Ct. 847, 851 (2005) (per curiam) (citing
Williams v. Taylor, 529 U.S. 362, 405, 120 S. Ct. 1495, 1519 (2000))
(state court’s decision is “contrary to” federal law if, inter alia,
court applies rule that contradicts governing law set forth in
Supreme Court cases). Hinesley’s habeas petition is instead
premised on the contention that the Indiana appellate court
unreasonably applied Strickland.
Strickland itself requires that a convicted individual make
two showings in order to prove that he was deprived of his
right to effective assistance of counsel. First, he must show that
his counsel’s performance was deficient, that is, that his
No. 15‐2122 19
attorney made errors so serious that he was not functioning as
the counsel guaranteed to him by the Sixth Amendment.
466 U.S. at 687, 104 S. Ct. at 2064. In deciding whether the
petitioner has made this showing, we must avoid “the distort‐
ing effects of hindsight” and instead assess his counsel’s
performance against the circumstances that confronted counsel
at the relevant time—here, the trial. Id. at 689, 104 S. Ct. at 2065.
Recognizing that “[t]here are countless ways to provide
effective assistance in any given case,” we must indulge a
strong presumption that counsel’s representation falls within
a wide range of reasonable representation; and it is, of course,
the petitioner’s burden to overcome that presumption. Id. at
689‐90, 104 S. Ct. at 2065‐66. Second, the petitioner must show
that he was prejudiced by his counsel’s ineffective representa‐
tion, i.e., that he was deprived of a fair trial whose result is
reliable. Id. at 687, 104 S. Ct. at 2064. Specifically, he must
demonstrate that there is a reasonable probability that but for
his counsel’s unprofessional errors, the result of the trial would
have been different. Id. at 694, 104 S. Ct. at 2068. “A reasonable
probability is a probability sufficient to undermine confidence
in the outcome.” Id., 104 S. Ct. at 2068.
In order for us to conclude that the Indiana appellate
court’s application of Strickland was unreasonable for purposes
of section 2254, it is not enough that we might disagree with
that court’s rationale. “Over and over, the [Supreme] Court has
stressed that ‘an unreasonable application of federal law is
different from an incorrect application of federal law.’” Ward v.
Neal, No. 16‐1001, 2016 WL 4492479, at *3 (7th Cir. Aug. 26,
2016) (quoting Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct.
770, 785 (2011)) (emphasis in Richter). “The Richter court
20 No. 15‐2122
elaborated that “a state prisoner must show that the state
court’s ruling on the claim being presented in federal court was
so lacking in justification that there was an error well under‐
stood and comprehended in existing law beyond any possibil‐
ity for fairminded disagreement.’” Id. (quoting Richter, 562 U.S.
at 103, 131 S. Ct. at 786‐87).
Our review is therefore “doubly deferential,” Knowles v.
Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411, 1420 (2009), in the
sense that Strickland’s inquiry is “highly deferential” to a
lawyer’s plausible strategic choices, 466 U.S. at 689, 104 S. Ct.
at 2065, and our review under section 2254(d) is likewise
“highly deferential” to the state courts that resolved Hinesley’s
ineffectiveness claim in the first instance, Burt v. Titlow,
134 S. Ct. 10, 15 (2013).
With these standards in mind, we turn to the first respect in
which Hinesley contends his trial counsel was ineffective.
Hinesley maintains that it was unreasonable for Vandivier not
to object on hearsay grounds to the admission of the out‐of‐
court statements made by V.V. and Billy to Downing at the
outset of his investigation. Vandivier testified that he made the
decision not to object because his strategy was to lay out the
multiple inconsistencies in the various statements V.V. and
Billy had made and thus to convince the trial judge that neither
of them should be credited. The Indiana Court of Appeals, of
course, found that this was a reasonable if unsuccessful
strategy, and that Hinesley was not, in any event, prejudiced
by the admission of these statements into evidence. For
multiple reasons, the Indiana court’s resolution of this point
was not an unreasonable application of Strickland.
No. 15‐2122 21
First, it bears noting that it has been undisputed throughout
this litigation that these out‐of‐court statements would have
been admissible—and, pursuant to defense counsel’s strategy,
would have been elicited—along with the other statements that
V.V. and Billy made in order to show how their accounts
changed over time and thus to impeach their credibility. So it
is not Hinesley’s position that the defense should have fought
to exclude these statements altogether. Rather, Hinesley’s
objection is that by remaining silent as the State introduced
these statements through Downing and later Billy, defense
counsel allowed the statements into evidence with no limita‐
tion, so that the trial judge as the factfinder could consider
them for their truth. Secondarily, Hinesley posits that allowing
the State to elicit these statements in the first instance enabled
the prosecution to present the strongest version of its case at
the outset of the trial: Downing was able to recount what V.V.
and Billy told him about the assault (and indeed Billy’s
interview was played in full) without their accounts being
subject to cross‐examination until they each took the witness
stand later in the case. But, again, Hinesley is not suggesting
that the factfinder should never have been exposed to these
statements (although he does say that the video recording of
Billy’s interview should never have been played); he is arguing
that his counsel should not have permitted the statements to
have been elicited by the prosecutor and without limitation on
the purposes for which they could be considered.
Second, as the two percipient witnesses, it was a given that
both V.V. and Billy would testify in the State’s case and that
they would give accounts similar to, if not precisely the same
as, the accounts they had given to Downing in their original
22 No. 15‐2122
statements.3 To be sure, both had wavered in their accounts in
advance of trial, with V.V. having recanted her accusation
entirely at one point and Billy having disclaimed any memory
of what he might have seen. But at their pre‐trial depositions,
V.V. had repeated her core accusation that Hinesley raped her,
and Billy had confirmed what V.V. had told him about that
assault. It was a reasonable assumption that they would do so
again at trial. So from the defense perspective, there was little
to be lost by allowing the State to elicit their original state‐
ments. The statements, at worst, would preview (and dupli‐
cate) their trial testimony.
Of course, as trial witnesses, both V.V. and Billy would be
subject to cross‐examination as to the content of their out‐of‐
court statements. Indeed, that was the point of the defense
strategy—to open the door to these and all of the other
statements the two had made about events and to showcase all
of the inconsistencies among them for the judge during cross‐
examination and argument. Given that their prior statements
would be elicited in one way or another, it was not unreason‐
able for defense counsel to allow the State to elicit them in the
first instance.
And with one material exception, V.V. and Billy did not
deviate in their trial testimony from the pre‐trial statements
that are at issue here. To that extent, these statements were
3
There were certain minor inconsistencies between their original state‐
ments to Downing and their trial testimony. For example, at trial, V.V.
testified that Hinesley had pulled her pajama pants down during the
assault, whereas she had told Downing that Hinesley had directed her to
pull them down.
No. 15‐2122 23
simply cumulative of what these two witnesses recounted at
trial. The one exception was Billy’s statement (or rather
question) to V.V.: “Did I see what I think I saw?” That state‐
ment, of course, suggested that Billy had seen V.V. pulling up
her pants in the immediate aftermath of the assault (as, indeed,
Billy had told Downing he had), and lent an important degree
of corroboration to V.V.’s account—assuming it withstood
scrutiny. But although Billy made that statement in his
videotaped interview with Downing, he thereafter backed
away from it. At trial, Billy not only reiterated that he had no
recollection of what he may have seen, but admitted that
“there’s a good chance that [he] didn’t see anything at all,”
Tr. 178, and that he “could have” lied when he told Downing
that he had seen something, Tr. 179. If anything, the admission
of this statement/question served to highlight the degree to
which Billy had backtracked from his initial interview and was
unwilling to stand by the veracity of what he had told
Downing.
Consistent with his declared strategy, counsel did drive
home each and every one of the inconsistencies among the
statements that V.V. and Billy had made over time. Vandivier
advised the judge in his opening statement that she was “going
to hear inconsistent statement after inconsis[tent] statement,”
Tr. 6, and he made good on that promise. His cross‐examina‐
tion of both witnesses was thorough, and in fact, both V.V. and
Billy freely acknowledged the differences in the statements
they had made over time.
Under these circumstances, we can by no means say that
the Indiana Court of Appeals was unreasonable in concluding
that counsel’s strategy was not ineffective. Counsel had the
24 No. 15‐2122
benefit of a pre‐trial run‐through with both V.V. and Billy at
their depositions and knew what the inconsistencies in their
statements were and, also, that they would acknowledge them.
The risks of allowing the prosecution to elicit their original
statements, and without limitation as to the purpose for which
those statements could be considered, were low. With the
judge serving as the trier of fact, it was unlikely that undue
weight would be given to the witnesses’ out‐of‐court state‐
ments as opposed to their in‐court testimony. The judge would
understand that a witness’s testimony given under oath, in the
judge’s presence, and subject to cross‐examination is the most
relevant substantive evidence and manifestation of his candor,
and that his out‐of‐court statements are principally relevant to
the extent they show consistency or inconsistency in the
accounts he has given over time. There is no disagreement that
the defense had to elicit each of the witnesses’ out‐of‐court
statements in order to expose the significant inconsistencies
among those statements; how the statements were elicited
ultimately would not have mattered much, if at all, to the
factfinder.
Nor did the state court conclude unreasonably that
Hinesley suffered no prejudice from his counsel’s decision not
to object or attempt to limit the use of the statements, even
assuming the strategy was faulty. As we have already made
clear, there was only one instance in which the out‐of‐court
statements were not cumulative of the trial testimony of V.V.
and Billy, and that was in Billy’s purported question to V.V.:
“Did I see what I think I saw?” But as we have already dis‐
cussed, that question hardly hurt the defense, given Billy’s
dual admissions on the witness stand that he no longer recalled
No. 15‐2122 25
what, if anything, he had seen and, more importantly, that he
may have lied when he told Downing that he saw V.V. pulling
up her pants. Yes, allowing the State to elicit such statements
on direct examination of its witnesses (Downing, principally)
enabled it to put on a somewhat more straightforward and
stronger case at the start of the trial, in the sense that it was
able to lay out the case as it was presented to Downing. But
any advantage that may have given the State was short‐lived,
given defense counsel’s relentless cross‐examination of both
V.V. and Billy as to the significant retractions and inconsisten‐
cies in their accounts. In the end, the judge chose to believe
V.V. and the account she gave. It strains credulity to think that
she might have rendered a different credibility assessment had
the defense elicited each of the out‐of‐court statements as
impeachment, on cross‐examination, rather than allowing the
State to elicit some of these statements in the first instance and
without limitation. One may quibble, as Hinesley does, with
the particular words the judge used when she rejected
Hinesley’s argument on this point at the post‐conviction stage
(she said her credibility finding as to V.V. “[wa]s sufficient” to
uphold Hinesley’s conviction “regardless of any hearsay
admitted without objection,” R. 14‐4 at 60 ¶ 12, rather than
saying explicitly that the hearsay did not materially affect her
decision), but the clear import of her finding was that V.V.’s
credible testimony in court was what was essential to her
decision to convict Hinesley. That is what the Indiana Court of
Appeals understood the judge to mean, 999 N.E.2d at 987‐88,
and that is an entirely reasonable interpretation of her finding.
Our discussion of the vouching question may be brief. Even
if we were to agree with Hinesley that there was no plausible
26 No. 15‐2122
strategic reason to allow the vouching statements into evi‐
dence, Hinesley’s ineffectiveness argument would nonetheless
fail for want of prejudice. See Strickland, 466 U.S. at 697,
104 S. Ct. at 2069 (court need not decide whether counsel was
ineffective before turning to whether defendant was preju‐
diced). The two statements—one in court, one out of court–
were isolated, were not belabored, were not cited by the State
in its closing argument, and were highly unlikely to have
influenced the judge’s assessment of guilt. It was no surprise
that Downing believed V.V.—the course of his investigation
demonstrated that belief just as clearly as his statement did. If
anything, his statement lent itself to the point the defense was
making at trial—that Downing too soon accepted V.V.’s
account at face value, not realizing that V.V. and Billy were
engaged in an illicit relationship and shared an incentive to
keep that relationship hidden from the authorities. It was
likewise unremarkable that Billy would say he believed V.V.,
given that the two of them were intimately involved with one
another. What would have mattered to the judge in deciding
whether to believe V.V. was not the impressions of Downing
and Billy but rather the credibility of V.V.’s testimony at trial
in the presence of the judge, which is what the prosecutor
herself focused on in closing.
Hinesley last contends that the state courts improperly
rejected his contention that his counsel was cumulatively
ineffective; but we agree with the district court that Hinesley
did not give the state courts a full and fair opportunity to
address the claim. See Duncan v. Walker, 533 U.S. 167, 178‐79,
121 S. Ct. 2120, 2127‐28 (2001); Johnson v. Loftus, 518 F.3d 453,
455‐56 (7th Cir. 2008). There is no doubt that the claim was
No. 15‐2122 27
presented to the Indiana Court of Appeals, which rejected the
claim on its merits. But the relevant question is whether
Hinesley fully and fairly presented it to the Indiana Supreme
Court in the petition for transfer to that court. See O’Sullivan v.
Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732‐33 (1999).
Hinesley’s transfer petition in relevant part focused on the
judicial temperance doctrine, which the appellate court had
cited as a central reason for rejecting his cumulative ineffective‐
ness claim. Hinesley argued that the appellate court was
wrong as a matter of fact when it invoked the presumption
notwithstanding what he perceived as signals from the trial
judge, in her opinion denying postconviction relief, that she
had relied on unobjected‐to hearsay in convicting Hinesley. The
problem, for Hinesley, is that although his petition mentioned
Strickland in passing, the argument as presented was that the
state appellate court wrongly applied a state rule, which is
ordinarily not a matter of concern for a federal habeas court.
See Swarthout v. Cooke, 562 U.S. 216, 219, 131 S. Ct. 859, 861
(2011) (per curiam). Compounding the problem is that the
transfer petition not only never used the word “cumulative” to
distinguish his argument of cumulative prejudice from his
arguments of individual ineffectiveness, but in the pertinent
section focused solely on the subject of hearsay and said
nothing about the multiple other bases for his cumulative
argument.4 In short, Hinesley never presented a discernible
argument of cumulative ineffectiveness to the Indiana Su‐
4
For example, the transfer petition noted the rejection of Hinesley’s
argument as to vouching in its procedural summary, but did not mention
vouching again in the relevant argument portion of the petition.
28 No. 15‐2122
preme Court. The district correctly found that this amounted
to a procedural default that precluded federal review of the
claim.
III.
We AFFIRM the denial of Hinesley’s petition for a writ of
habeas corpus.