In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐2965
ROSS R. THILL,
Petitioner‐Appellant,
v.
REED A. RICHARDSON,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 18‐cv‐1005 — James D. Peterson, Chief Judge.
____________________
ARGUED APRIL 1, 2021 — DECIDED MAY 3, 2021
____________________
Before MANION, ROVNER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. A Wisconsin jury found Ross Thill
guilty of sexual contact with A.M.M., his ex‐girlfriend’s eight‐
year‐old daughter. At trial, A.M.M. testified that Thill had sex‐
ually assaulted her, and the prosecution presented forensic
evidence corroborating her testimony—Thill’s semen was
found on her underwear. Thill’s defense was that his jilted ex‐
girlfriend framed him by saving his semen for over a year,
planting it on her daughter’s underwear, and then coaching
2 No. 20‐2965
her to make false accusations. While cross‐examining Thill
and in closing arguments, the prosecutor referenced Thill’s
failure to tell the police during his initial interview that he be‐
lieved his ex‐girlfriend had the means or motivation to frame
him.
In state postconviction proceedings, Thill argued that the
prosecutor impermissibly used his silence after receiving Mi‐
randa1 warnings to impeach him—violating Doyle v. Ohio, 426
U.S. 610 (1976)—and that his trial counsel was ineffective for
failing to object. The Wisconsin Court of Appeals concluded
Thill had not demonstrated prejudice. Because this conclusion
was not contrary to nor an unreasonable application of clearly
established federal law, we affirm the district court’s denial of
habeas relief.
I. Background
A. Charges and Trial
In late 2011, Thill dated A.M.M.’s biological mother, April
Gray. After they broke up, A.M.M. would occasionally stay
the night at Thill’s house to spend time with his two daugh‐
ters. The sexual assaults allegedly occurred during these vis‐
its. The last of these visits occurred on March 8, 2013. A.M.M.
claimed that Thill sexually assaulted her in his car on the way
to his house. A.M.M. underwent a sexual assault exam and a
forensic interview with a social worker. Shortly afterward, the
state charged Thill with one count of repeated sexual assault
of A.M.M. In June 2014, a four‐day trial commenced.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
No. 20‐2965 3
1. The State’s Case
Gray testified that she and Thill had dated for a few
months near the end of 2011. When they were together, she
would sometimes bring A.M.M. with her to Thill’s house be‐
cause Thill had two daughters around A.M.M.’s age. Accord‐
ing to Gray, she cared more about Thill than he did about her,
and so they broke up. After their breakup, A.M.M. continued
to occasionally spend the night at Thill’s house.
Though A.M.M. is Gray’s biological daughter, her legal
guardian is Gray’s mother, Barbara Martin. Martin was out of
town with her husband during the weekend of March 8, 2013,
and Gray was taking care of A.M.M. She and Thill arranged
for A.M.M. to spend the night at his house on Friday, March
8. Gray testified that the morning of March 8, as A.M.M. was
getting ready to go to school, she told Gray that Thill had
touched her inappropriately in the past. Gray told A.M.M.
that if that were true, she would not be able to go back to
Thill’s house. A.M.M. began to cry and said she wanted to
spend time with her friends. According to Gray, she did not
believe A.M.M. at the time.
Gray testified that while A.M.M. was normally excited to
go to Thill’s, she seemed distressed when Thill arrived to pick
her up alone and without his daughters around 5 p.m.
A.M.M. packed a change of clothes and brought it with her,
even though Martin had told Gray not to allow A.M.M. to
pack any clothes. According to Martin, she stopped sending
clothes with A.M.M. when she went to Thill’s house because
she would come home without them. Specifically, Martin tes‐
tified that A.M.M.’s undergarments or pants would be miss‐
ing. Thill would sometimes return them later in the week, af‐
ter washing them.
4 No. 20‐2965
Around 6:45 p.m., Gray received a call from Thill. He told
her they were still on the road headed to his house but A.M.M.
was crying and wanted to go home because she missed her
grandmother. Thill put A.M.M. on the phone, and A.M.M.
told Gray she wanted to come home. Shortly afterward,
A.M.M. called back and said she wanted to go see Thill’s
daughters.
When A.M.M. arrived home the next morning, Gray testi‐
fied she was acting unusual and so Gray became concerned
something had happened. Martin arrived home later that
night. Martin testified that she spoke with A.M.M. the next
morning and A.M.M. told her that Thill had touched her. Mar‐
tin then brought A.M.M. to the hospital, where she was exam‐
ined by a sexual assault nurse examiner (“SANE”). At the hos‐
pital, when Gray spoke to the police, she told them that she
did not believe A.M.M. because A.M.M. lies a lot.
The SANE nurse did not find any physical injuries on
A.M.M. At trial, a state forensic scientist testified that semen
was detected on A.M.M.’s underwear and the DNA from the
semen stain matched Thill’s DNA. No DNA or semen was de‐
tected on a swab of A.M.M.’s vaginal opening. Male DNA was
found on a wipe of A.M.M.’s external genitalia area, but there
was not enough to tell if Thill was the source.
About a week later, a social worker conducted a forensic
interview with A.M.M. A videotape of the interview was
played at trial in lieu of A.M.M.’s direct examination. During
the interview, A.M.M. read portions of her journal to the so‐
cial worker. She stated that, when they were in his car, Thill
had put both his finger and his “peter” in her crotch. She told
the social worker it happened in the car’s front seat and Thill
had taken her pants and shirt off. She further stated that the
No. 20‐2965 5
incident in the car was not the first time it had happened, and
that Thill had touched her previously in various locations in
his house and car.
On cross‐examination, A.M.M.’s testimony conflicted
somewhat with the details she told the social worker over a
year earlier. She testified, for example, the assault on March 8
took place in the car’s back seat. She also stated that her shirt
was on and her pants were pulled down. Defense counsel
asked her about some “stories” she had told, including that
her grandmother had died and that Thill’s neighbor found her
wandering in the woods near his house.
2. The Defense
Thill’s defense at trial was that Gray had framed him by
planting semen on A.M.M.’s underwear and coaching her to
make false accusations. On Gray’s cross‐examination, she ad‐
mitted that she had been untruthful to law enforcement offic‐
ers in the past.
Thill testified in his own defense. According to Thill, when
he and Gray had sex and did not use a condom, she would
have him ejaculate into Tupperware‐like containers near the
bed. He stated that after he and Gray broke up, her behavior
began to concern him. Gray would call his work and ask
about him. She would also hang out in the parking lot outside
his workplace and show up to his house. Thill’s former boss
testified that the restaurant where Thill worked from October
2011 until February 2012 would occasionally receive several
calls in one night from the same number. The female caller
would ask whether Thill was working. When she asked Thill
about the calls, he told her it was his “crazy ex.”
6 No. 20‐2965
According to Thill, when he picked A.M.M. up on March
8, Gray tried to hug and kiss him. He then ran some errands
with A.M.M. in tow. On the drive back to his house, A.M.M.
began to ask him some “unusual” questions that he thought
were inappropriate. He thought Gray had put her up to it.
Shortly afterward, he noticed that A.M.M. was crying. He
called Gray and put A.M.M. on the phone with her. He began
to turn around to bring A.M.M. home, but she then changed
her mind and decided to go to his house. Thill testified that
the rest of the night was uneventful. A.M.M. seemed to not be
getting along with his daughters. When he dropped her off
the next morning, he told Gray that he no longer wanted
A.M.M. to come to his house.
The defense also called an expert witness, Dr. David
Thompson. He is a specialist in child clinical psychology. He
testified that false memories can be planted in children. Chil‐
dren’s memories can be shaped by external influences, like
their parents. Repeated interviews can also influence what a
child remembers. Dr. Thompson identified several “red flags”
in the social worker’s interview with A.M.M. These included
that A.M.M. was relying on her journal and had difficulty
reading some of the words in her journal.
3. The Prosecutor’s Comments
After Thill was arrested, he was taken in for an interview
and read his Miranda rights. He then made some statements
to the police about his whereabouts on March 8, 2013, and
what he was doing. He told the police he had contact with
A.M.M. that day and had made a phone call to Gray. Thill
then invoked his right to remain silent. He did not tell the
No. 20‐2965 7
police during that initial interview that he thought Gray was
framing him for sexually assaulting A.M.M.2
During trial, the prosecutor referenced Thill’s failure to tell
the police his theory that Gray had framed him. Specifically,
during his cross‐examination, the following exchange oc‐
curred:
Q: Isn’t it true that the first time you’ve told this ac‐
count is today?
A: No. I’ve had discussions with [my attorney] before.
Q: Aagh. But when you had the opportunity to tell law
enforcement these facts that you hoped would exoner‐
ate you, you did not do that?
A: No, I did not.
During closing argument, the prosecutor made the following
argument:
Now, folks that are under investigation are absolutely
entitled to remain silent. I must have said that to 150
clients when I was a defense attorney, you shut your
mouth, I’ll tell you when you can speak, and God help
the ones who didn’t listen to me. But if what he told
you is true, wouldn’t we want to know that over a year
ago and not put ourselves through this process? As a
result of this case, apparently the mother of [Thill’s
daughters] has gotten an order or some other thing that
2 These facts surrounding Thill’s interview with police are gleaned
from the testimony at the postconviction evidentiary hearing. The tran‐
script from the interview was entered into evidence at the hearing. It is not
contained in the record here.
8 No. 20‐2965
he can’t see those two daughters. Wouldn’t you have
an interest in getting your exoneration out there, but
instead we hear it for the first time from the witness
stand. Now, there are a lot of very good reasons why
that might be, but it is something that you are allowed
to consider in deciding what weight to give the defend‐
ant’s testimony, what weight, and that’s what this is
really all about.
Thill’s counsel did not object to this aspect of the state’s cross‐
examination or closing argument.
4. Conviction and Sentencing
At the close of evidence, the state requested that the charge
be amended from repeated sexual assault of a child to re‐
peated sexual contact with a child. The state also requested
that the jury be instructed on the lesser included offense of a
single count of sexual contact with A.M.M. on March 8, 2013.
The court granted both requests.
The jury acquitted Thill of repeated sexual contact with
A.M.M. It found him guilty of the lesser included offense of
one count of sexual contact occurring on March 8, 2013. The
judge sentenced him to 16 years of imprisonment followed by
9 years of extended supervision.
B. Postconviction Proceedings
Thill filed a motion for postconviction relief, contending
that his trial counsel was ineffective for failing to object to the
No. 20‐2965 9
prosecutor’s comments on his silence.3 The circuit court held
an evidentiary hearing, at which his trial counsel testified.
Thill’s trial counsel was read the relevant section of Thill’s
cross‐examination and asked if he had considered objecting.
He testified he did not recall, but that he thought the ques‐
tions were “pretty close to the line” but not “over” it. He
stated that “sometimes when you object and make a big deal
out of a prosecutor pushing the envelope on things like that,
you just draw the jury’s attention to the point that the prose‐
cutor is trying to make.” He stated “that would have been a
consideration that would have been in [his] head.” He testi‐
fied similarly about the prosecutor’s closing argument, noting
that it was “pushing the envelope” and “potentially im‐
proper” but he had “seen worse.”
The circuit court denied Thill’s postconviction motion in
an oral ruling. The Wisconsin Court of Appeals affirmed. State
v. Thill (“Thill I”), 900 N.W.2d 343 (Wis. Ct. App. 2017) (per
curiam). It noted that, for Thill to succeed on his ineffective
assistance of counsel claim, he had to show that his “counsel’s
performance was deficient and that the deficiency preju‐
diced” him. Id. ¶ 8 (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). The court “assume[d], without deciding, that
the prosecutor’s comments [on Thill’s pretrial silence] were
improper and that the failure to object to the comments was
deficient performance.” Id. ¶ 19.
The Wisconsin Court of Appeals determined, however,
that Thill’s Strickland claim failed because he failed “to show
3 Thill also attacked other aspects of his trial counsel’s performance
and the trial, but those issues are not relevant to this appeal and so we will
not discuss them further.
10 No. 20‐2965
that he was prejudiced by his trial counsel’s failure to object.”
Id. ¶ 23. It explained:
The prosecutor’s questions and comments were iso‐
lated, made at the start of a lengthy and wide‐ranging
cross‐examination of Thill and in the midst of a lengthy
closing argument, at a trial that lasted three days, dur‐
ing which the parties called nineteen witnesses and
presented forty‐five exhibits. The State’s evidence in‐
cluded [A.M.M.’s] forensic interview statements, her
statements during her physical examination, her trial
testimony, and testimony by her mother and grand‐
mother. Thill presented evidence challenging
[A.M.M.’s] credibility, supporting his defense that
[A.M.M.’s] mother was motivated to frame him after
he ended their relationship, and showing his good
character. The jury acquitted Thill of repeated acts of
sexual assault and found him guilty of one act of sexual
contact committed on the date of the incident de‐
scribed earlier in this opinion. In reaching that verdict,
the jury would have been focused on the credibility of
[A.M.M.], her mother, and her grandmother; on the
physical evidence related to the other incidents
charged; and also on Thill’s credibility as to all the in‐
cidents charged. Thill fails to show that there is a rea‐
sonable probability that, but for his trial counsel’s fail‐
ure to object to the prosecutor’s brief and isolated ques‐
tions about Thill’s failure to tell the detective his full
account of one of the incidents, the verdict would have
been different.
This case is not like Odell v. State, 90 Wis. 2d 149, 151–
54, 279 N.W.2d 706 (1979), on reconsideration of Odell v.
No. 20‐2965 11
State, 87 Wis. 2d 294, 274 N.W.2d 670 (1979), which in‐
volved one incident of theft and where the questioning
was persistent, emphatic, and expressly accusatory as
to that one incident. We are confident that the brief and
isolated questions and comments here did not affect
the jury’s verdict, and, therefore, that Thill suffered no
prejudice from his counsel’s failure to object.
Id. ¶¶ 24–25.
Thill appealed, and the Wisconsin Supreme Court denied
his petition for review. Thill then filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 in the United States Dis‐
trict Court for the Western District of Wisconsin. The district
court agreed with Thill that “the prosecutor violated Doyle v.
Ohio, 426 U.S. 610 (1976), which holds that silence following
Miranda warnings may not be used to impeach a defendant’s
testimony at trial.” Thill v. Richardson (“Thill II”), 485 F. Supp.
3d 1018, 1021 (W.D. Wis. 2020).
Nonetheless, the district court denied Thill’s habeas peti‐
tion because it reasoned that he had failed to show that “the
state court acted contrary to or unreasonably applied the fed‐
eral standard for ineffective assistance.” Id. Specifically, the
court acknowledged that “[t]he court of appeals’ decision was
terse” but concluded that it “applied the correct standard and
provided plausible reasons for concluding that Thill hadn’t
been prejudiced.” Id. at 1022. Thill now appeals.
II. Discussion
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), a federal court may grant a habeas petition
“if a state court’s ruling on a federal constitutional question
‘was contrary to, or involved an unreasonable application of,
12 No. 20‐2965
clearly established Federal law, as determined by the Su‐
preme Court.’” Makiel v. Butler, 782 F.3d 882, 896 (7th Cir.
2015) (citing 28 U.S.C. § 2254(d)(1)). “A federal habeas court
may issue the writ under the ‘contrary to’ clause if the state
court applies a rule different from the law set forth in [the Su‐
preme Court’s] cases.” Rhodes v. Dittmann, 903 F.3d 646, 655
(7th Cir. 2018) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)).
The “unreasonable application” clause is met “‘if the state
court identifies the correct governing legal principle’ but ‘un‐
reasonably applies that principle to the facts of the petitioner’s
case.’” Id. (quoting Wiggins v. Smith, 539 U.S. 510, 520 (2003)).
Strickland provides the clearly established federal law for
Thill’s ineffective assistance of counsel claim. “Under Strick‐
land’s familiar two‐pronged standard,” Thill “must show both
that his counsel’s performance was deficient and that he was
prejudiced as a result.” Carter v. Douma, 796 F.3d 726, 735 (7th
Cir. 2015). For the reasons explained below, we affirm the dis‐
trict court’s denial of Thill’s habeas petition. The state appel‐
late court’s conclusion that Thill was not prejudiced by his
counsel’s failure to object was neither contrary to nor an un‐
reasonable application of Strickland.
Thill “is only entitled to habeas relief if he satisfies both of
Strickland’s prongs.” Gage v. Richardson, 978 F.3d 522, 527 (7th
Cir. 2020). Given that Thill’s arguments concerning the preju‐
dice prong fail, we decline to address whether his counsel’s
failure to object to the prosecutor’s comments on Thill’s si‐
lence constituted deficient performance. See id. (declining to
analyze deficient performance because the state appellate
court “did not unreasonably apply Strickland’s prejudice
prong”); see also Taylor v. Bradley, 448 F.3d 942, 949 (7th Cir.
2006) (noting that “it is unnecessary and undesirable for [a
No. 20‐2965 13
habeas court] to consider the attorney performance facet of
the analysis” when “an ineffectiveness claim may be disposed
of on the basis of a lack of prejudice”).
A. Whether the Decision Was Contrary to Strickland
The state appellate court determined that Thill’s ineffec‐
tive assistance of counsel claim could not succeed because he
failed to show that he was prejudiced by his counsel’s failure
to object. “Ordinarily, this state court determination would
require us to apply AEDPA deference to the state court’s de‐
cision.” Carter v. Duncan, 819 F.3d 931, 944 (7th Cir. 2016).
When a state court has reached an issue on the merits, as it
did here, the question is normally not whether we “agree with
the state court decision or even whether the state court deci‐
sion was correct,” but rather “whether the decision was un‐
reasonably wrong under an objective standard.” Dassey v.
Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en banc). Thill con‐
tends that we do not owe deference here because the state ap‐
pellate court’s decision applied the wrong standard and thus
was contrary to Strickland. To succeed, Thill must show that
the state court’s decision was “‘substantially different’ from
or ‘opposite to’” the prejudice standard articulated in Strick‐
land. Allen v. Chandler, 555 F.3d 596, 601 (7th Cir. 2009).
“In Strickland, the Supreme Court identified the now fa‐
miliar prejudice standard as whether ‘there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’” Duncan,
819 F.3d at 944 (quoting Strickland, 466 U.S. at 694). The Court
explicitly rejected an “outcome‐determinative standard,” and
held that a defendant need not show that “counsel’s deficient
conduct more likely than not altered the outcome in the case.”
Strickland, 466 U.S. at 693.
14 No. 20‐2965
Thill argues that the Wisconsin Court of Appeals’ decision
was contrary to Strickland because it applied an outcome‐de‐
terminative standard that required him to show that the ver‐
dict would have been different had his counsel objected. This
argument has no merit. The state appellate court correctly
paraphrased Strickland’s prejudice standard when it stated
that Thill had failed to show “that there is a reasonable prob‐
ability that, but for his trial counsel’s failure to object to the
prosecutor’s brief and isolated questions … the verdict would
have been different.” Thill I, 900 N.W.2d 343, ¶ 24. Two sen‐
tences later, the state appellate court noted that it was “confi‐
dent that the brief and isolated questions and comments here
did not affect the jury’s verdict.” Id. ¶ 25.
Even though the state appellate court correctly para‐
phrased Strickland, Thill maintains its analysis was contrary
to it for two reasons. First, he argues that the court’s statement
that it was “confident” that the remarks “did not affect the
jury’s verdict” means it was applying an outcome‐determina‐
tive test. But there is no indication that the state appellate
court abandoned the reasonable probability standard that it
articulated just two sentences earlier. Rather, the state court’s
phrasing suggests that it recognized that confidence in the
outcome is the touchstone of the reasonable probability anal‐
ysis. See Strickland, 466 U.S. at 694 (“A reasonable probability
is a probability sufficient to undermine confidence in the out‐
come.”). Moreover, even if it is ambiguous whether the state
court’s reference to “affect[ing] the jury’s verdict” was cor‐
rectly applying Strickland’s reasonable probability standard,
this ambiguity is not enough to “demonstrate that the court
applied a standard contrary to clearly established federal
law.” See Allen, 555 F.3d at 601 (finding that where a state
court correctly referenced Strickland and later used a single
No. 20‐2965 15
ambiguous metaphor, there was “no reason to think the
standard [articulated was] substantially different from the
Strickland test, nor that it is the equivalent of a ‘more likely
than not’ standard”).
Second, Thill contends that the state appellate court’s per‐
functory analysis of Strickland’s prejudice prong means that it
must have been applying an outcome‐determinative test. This
argument conflates AEDPA’s “contrary to” and “unreasona‐
ble application” clauses. The state appellate court correctly
paraphrased Strickland’s prejudice standard and analyzed
whether he adequately demonstrated that his counsel’s fail‐
ure to object prejudiced him. That the state court’s analysis
was relatively terse does not mean its decision was “contrary
to” Strickland. See Harrington v. Richter, 562 U.S. 86, 98 (2011)
(noting that even “[w]here a state court’s determination is un‐
accompanied by an explanation, the habeas petitioner’s bur‐
den still must be met by showing there was no reasonable ba‐
sis for the state court to deny relief”). Thill’s argument to the
contrary attempts to subvert the deference due to the state
court’s conclusion that he was not prejudiced.
The state court correctly paraphrased Strickland’s preju‐
dice standard and nothing in its analysis suggests it used a
standard “‘substantially different’ from or ‘opposite to’” the
prejudice standard articulated in Strickland. Allen, 555 F.3d at
601. Thill has failed to show that the court’s decision was con‐
trary to Strickland. He is therefore entitled to relief only if he
can demonstrate that the state appellate court’s determination
that he was not prejudiced by his counsel’s failure to object
was unreasonable. As described below, he cannot do so.
16 No. 20‐2965
B. Whether the Decision Was an Unreasonable Application
of Strickland
Thill next argues that the state appellate court’s determi‐
nation that he was not prejudiced by his trial counsel’s failure
to object was an unreasonable application of Strickland. “The
bar for establishing that a state court’s application of the
Strickland standard was ‘unreasonable’ is a high one, and only
a clear error in applying Strickland will support a writ of ha‐
beas corpus.” Allen, 555 F.3d at 600. “A petitioner cannot pre‐
vail by showing simply that the state court’s decision was
wrong.” Makiel, 782 F.3d at 896. Rather, “we ask whether the
state court decision ‘was so lacking in justification that there
was an error well understood and comprehended in existing
law beyond any possibility for fairminded disagreement.’”
Dassey, 877 F.3d at 302 (quoting Richter, 562 U.S. at 103). This
standard is both “difficult to meet” and “highly deferential.”
Makiel, 782 F.3d at 896 (quoting Cullen v. Pinholster, 563 U.S.
170, 181 (2011)). “[F]ederal habeas relief from state convic‐
tions is rare” and “reserved for those relatively uncommon
cases in which state courts veer well outside the channels of
reasonable decision‐making about federal constitutional
claims.” Dassey, 877 F.3d at 302. Given this high bar, we con‐
clude that the state appellate court did not unreasonably ap‐
ply Strickland’s prejudice prong.
The Wisconsin Court of Appeals offered four reasons to
support its conclusion that counsel’s failure to object did not
prejudice Thill. First, “[t]he prosecutor’s questions and com‐
ments were isolated” and “made at the start of a lengthy and
wide‐ranging cross‐examination” and “in the midst of a
lengthy closing argument.” Thill I, 900 N.W.2d 343, ¶ 24. Sec‐
ond, the state offered ample evidence of Thill’s guilt,
No. 20‐2965 17
including the testimony of A.M.M., Gray, and Martin. Id.
Third, Thill had the opportunity to challenge the state’s the‐
ory of the case, including “challenging [A.M.M.]’s credibility,
supporting his defense that [A.M.M.]’s mother was motivated
to frame him after he ended their relationship, and showing
his good character.” Id. Fourth, the jury acquitted Thill of re‐
peated acts of sexual contact, suggesting that the jury care‐
fully considered the credibility of the witnesses and the other
evidence, including the physical evidence. Id. Ultimately, the
state court concluded that it was “confident that the brief and
isolated questions and comments here did not affect the jury’s
verdict.” Id. ¶ 25.
We cannot say that this conclusion is so “lacking in justifi‐
cation” that fair‐minded jurists could only conclude that trial
counsel’s failure to object prejudiced Thill. Richter, 562 U.S. at
103. We recognize that Thill’s credibility was central to his de‐
fense, and the prosecutor’s comments and questions about his
silence had the potential to “plant[] in the mind of the jury the
dark suspicion that [Thill] had something to hide,” and that
any theory of defense he “subsequently proffered [was] pure
fabrication.” Alston v. Garrison, 720 F.2d 812, 816 (4th Cir.
1983). But Thill must show more than the mere possibility
that, had his trial counsel objected, the result of the proceed‐
ing would have been different. Rather, he must demonstrate
that there was a reasonable probability of a different outcome,
and that the state court’s determination to the contrary was
unreasonable. See Gage, 978 F.3d at 530. He has not done so.
Our decision in Taylor demonstrates that a state court can
reasonably conclude that a defendant was not prejudiced by
his trial counsel’s failure to object to a Doyle violation, even
when the credibility of the defendant is a central issue in the
18 No. 20‐2965
case. 448 F.3d at 950–51. There, the petitioner was arrested for
armed robbery after two eyewitnesses placed him at the
scene. Id. at 943. His defense at trial was that he had an alibi—
he was with his child’s mother the night the robbery occurred.
Id. During his cross‐examination, the prosecutor questioned
him about why he did not provide this alibi to the police. As
here, Taylor alleged his counsel was ineffective because he
failed to object to the prosecutor’s Doyle violation. We found
that the state court’s determination that he had failed to show
prejudice was reasonable. Specifically, we noted that even
though the eyewitness testimony had “some minor inconsist‐
encies,” the evidence against Taylor was “overwhelming.” Id.
at 950. Further, he “failed to present any concrete evidence in
his defense” except for “his own self‐serving testimony,” and
so his alibi defense was “extremely weak and unpersuasive.”
Id.
Here, as in Taylor, the state court’s conclusion that Thill
was not prejudiced is not beyond fair‐minded disagreement.
The state presented significant direct evidence of the March 8
sexual assault, including A.M.M.’s account and physical evi‐
dence of Thill’s semen on her underwear. Like in Taylor, the
“minor inconsistencies” in eight‐year‐old A.M.M.’s forensic
interview and her testimony at trial (over a year later) do not
significantly undercut the weight of that evidence. 448 F.3d at
950. Further, Thill’s defense that Gray planted his semen and
framed him for the sexual assault had significant holes that
extended far beyond his failure to raise this defense to the po‐
lice. This defense was “weak and unpersuasive” and largely
rested on Thill’s “self‐serving testimony.” Id. It required the
jury to reconcile Thill’s narrative that Gray was unstable and
borderline stalking him after the break‐up with the fact that
Thill stayed in contact with her and allowed A.M.M. to spend
No. 20‐2965 19
the night at his house multiple times. It also required the jury
to believe that Gray would have been so upset by a break‐up
that occurred over a year earlier that she had saved his semen
and planted it in response to his decision to not have A.M.M.
over to his house anymore. Lastly, Thill’s defense required the
jury to believe that Gray planted Thill’s semen on A.M.M.’s
underwear in the hopes that the sexual assault exam would
uncover it while at the same time discrediting the very story
that she supposedly coached her daughter to tell. (Gray testi‐
fied that she told police at the hospital that she did not believe
her daughter because she lies a lot.)
Thill complains that the state appellate court’s reasoning
was terse, but that is not enough to entitle Thill to relief. See
Dassey, 877 F.3d at 314 (stating that the “relative brevity” of a
state court’s opinion “is not a reason for granting habeas re‐
lief”). In fact, state court decisions receive “significant defer‐
ence even if they provide no reasons at all.” Id. (citing Richter,
562 U.S. at 98–99). And here, though the state court’s reason‐
ing was terse, it focused on several key issues—including that
the evidence against Thill included both eyewitness testi‐
mony and forensic evidence and that the prosecutor’s state‐
ments were relatively brief. Given these points and the weak‐
nesses in Thill’s defense, the appellate court’s conclusion that
there was not a reasonable probability of a different outcome
had his counsel objected was not “so lacking in justification
that there was an error … beyond any possibility for fair‐
minded disagreement.” Richter, 562 U.S. at 103.
III. Conclusion
The Wisconsin Court of Appeals did not act contrary to or
unreasonably apply Strickland when it concluded there was
not a reasonable probability of a different outcome had Thill’s
20 No. 20‐2965
trial counsel objected, so the district court’s denial of habeas
relief is
AFFIRMED.