Isaiah Brady v. RANDY PFISTER, Acting Warden, Pontiac Correctional Center

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3365
ISAIAH BRADY,
Petitioner-Appellant,
v.
RANDY PFISTER, Acting Warden,
Pontiac Correctional Center,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 C 2098—Matthew F. Kennelly, Judge.
ARGUED SEPTEMBER 17, 2012—DECIDED APRIL 1, 2013
Before EASTERBROOK, Chief Judge, and BAUER and
WOOD, Circuit Judges.
WOOD, Circuit Judge. Isaiah Brady was convicted in
Illinois state court of first-degree murder for the
shooting death of Andrea McDaniel, his girlfriend and
the mother of his eighteen-month-old daughter. Brady
no longer disputes that he shot McDaniel, though he
claims it was an accident and has proffered four wit-

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2 No. 11-3365
nesses to corroborate his story. None of them testified
at trial, because Brady’s lawyer did not call them. This
amounted to constitutionally ineffective assistance of
counsel, in Brady’s view. The state courts were not per-
suaded that this omission was serious enough to under-
mine his conviction, and the district court held that
their decision was not so unreasonable that federal
relief was possible. Even assuming that the performance
of Brady’s lawyer fell below constitutional standards,
we conclude that Brady’s inability to show prejudice
dooms his petition under 28 U.S.C. § 2254. We there-
fore affirm.
I
A
McDaniel arrived at the emergency room of Provident
Hospital in Chicago in the early hours of May 10, 2001,
with a gunshot wound to the head. She died two days
later. Her death was ruled a homicide, and Brady
quickly became a suspect. After several weeks on the
run, Brady was arrested in Los Angeles, California, on
June 6, 2001, extradited to Illinois, and charged
with murder.
Brady was convicted in a bench trial in November 2002.
The prosecution’s theory was that Brady, who had a
history of abusing McDaniel, shot her in the course of
an argument that broke out when she attempted to
leave him. To prove its case, the state presented
witnesses to testify about: (1) Brady’s history of domestic

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No. 11-3365 3
violence toward McDaniel; (2) Brady’s actions before
and after the shooting; (3) physical evidence found
in Brady and McDaniel’s apartment; and (4) Brady’s
flight to California.
To establish the first point, the state presented
several police officers who had responded to domestic
disturbance calls at Brady and McDaniel’s apartment in
the past. On some occasions, the officers had discovered
serious problems. For example, about 11 months before
the shooting, officers had to force their way into the
apartment as they heard McDaniel screaming for
help. Once inside, they observed McDaniel with bruises
on her arm and face; she told them that these were
the results of Brady’s having hit her with a broomstick.
After he was placed under arrest and informed of
his rights, Brady told the officers that he beat McDaniel
because she stayed out at night and did not take care
of their children.
Corey Hall, a close friend of McDaniel who lived
across the courtyard from Brady and McDaniel’s apart-
ment, also provided information about Brady’s actions
before the shooting. On the night of May 9, 2001, Hall
and some friends, including Brady and McDaniel, were
sitting on Hall’s back porch. Hall testified that Brady
had with him a .38-caliber revolver, which Hall saw
when it fell out of Brady’s pants. Later that evening,
Hall joined Brady and McDaniel for tacos in their apart-
ment; he left shortly after midnight. Approximately
one hour and 10 minutes later, Hall was on his way to
a nearby store when he saw Brady walking in the direc-

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4 No. 11-3365
tion of Brady’s own apartment. Hall recalled that Brady
seemed nervous.
Three witnesses—Antoinette Dill, Gail Gray, and
Wanda Riley—testified about Brady’s actions in the wake
of the shooting. Dill, who lived on the floor below Brady
and McDaniel, watched as Brady removed McDaniel
from the apartment. At about 1:30 a.m., Dill heard
Brady and another man (who turned out to be Brady’s
stepfather) speaking near her window. According to
Dill, the other man said “she’s dead,” to which Brady
responded, “she’s not dead yet, help me carry her.” Dill
then heard a woman screaming for someone to call
an ambulance and saying “don’t move her.” As Dill left
her apartment to offer help, she saw Brady and another
man placing McDaniel in the back seat of a black car.
A woman (Brady’s mother) was sitting in the car and
asked Dill to call 911, but Brady responded that there
was no time and that they needed to drive McDaniel to
the hospital.
Gray, an emergency room nurse at Provident
Hospital, was on duty when Brady drove up with
McDaniel around 1:35 a.m. Brady identified himself
as McDaniel’s boyfriend. After taking McDaniel to the
resuscitation room, Gray spoke briefly with Brady about
McDaniel’s medical history. About 10 to 15 minutes
after Gray returned to the resuscitation room, a police
officer came looking for Brady, but Gray was unable
to find him.
Riley, Brady’s grandmother, lived around the corner
from Provident Hospital. Some time after 1:30 a.m., Brady

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No. 11-3365 5
showed up at her apartment and asked to borrow her
car. He told Riley that McDaniel had been shot and that
he needed to pick up his daughter, who was apparently
still back at the apartment. Riley needed her car for
work the following day, and so she refused Brady’s
request. Brady grabbed her car keys anyway and tried
to leave, taking along some clothes that belonged to
Riley’s son. Riley followed him and recovered the keys.
Brady then ran off in the direction of his apartment,
leaving the clothes behind. Five minutes later, Brady’s
mother and stepfather arrived at Riley’s home with
Brady’s daughter.
Several witnesses described the physical evidence.
Most importantly for our purposes, Officer Joseph
Dunigan testified about the chaotic condition of
McDaniel and Brady’s apartment immediately following
the shooting. There was blood on the rear stairs as well
as in the kitchen; bloody towels and clothing lay on
the kitchen floor. The master bedroom was a mess: the
door was marked and damaged near the handle; clothes
and a bloody mattress were strewn about; a television
was on the floor; and there was blood on the wall.
Dunigan recovered two .38-caliber cartridges from the
bedroom.
The final support for the state’s case came from
Brady’s flight to California. Makeeta Burke testified that
she met Brady in a Los Angeles bar. Brady told Burke
that his name was Rico Holt, that he was from New York,
and that he was in California to care for his grandfather.
He volunteered that he was on the run from the

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6 No. 11-3365
FBI because some of his friends were drug dealers.
Shortly before his arrest, Brady told Burke that he had
accidentally killed his daughter’s mother when his gun
unexpectedly fired as he took it off a shelf. Brady said
that he fled to California because the police had come to
his home on other occasions when he and McDaniel
were arguing. He asserted that he was planning to
turn himself in as soon as his family was able to hire
a lawyer.
After he was arrested, Brady continued for a time to
maintain that his name was Rico Holt. The Chicago
police officer who handled Brady’s extradition from
California testified that Brady identified himself as Holt
when they first spoke in the Los Angeles County Jail.
Brady’s trial counsel presented only one defense
witness: Brady’s grandfather, Claude Sanders. Sanders
testified that he advised Brady to leave town after the
shooting because he had heard that Brady’s life was
in danger.
The court found Brady guilty of first-degree murder.
It credited the testimony of Burke and Hall and
concluded that their account supported the inference
that Brady (as opposed to someone else, such as an in-
truder) had shot McDaniel. The court rejected the idea
that the shooting was an accident. Believing that
Brady’s story to Burke was fabricated to maintain his
relationship with her, the court found it not to be credi-
ble. The court also found that Brady’s behavior after the
shooting was not consistent with an accident. It noted
that Brady did not call paramedics or seek help from

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No. 11-3365 7
his neighbors; instead, he delayed McDaniel’s treatment
for a “significant time” when he decided to call his
mother first. Brady then attempted to obtain
fresh clothes and a car, suggesting an intent to flee.
He never returned to the hospital to check on McDaniel,
nor did he turn himself in or seek legal advice. Suspi-
ciously, he fled to California and assumed an alias. In
the court’s view, these were not the actions one
would expect of a person who accidentally had shot a
loved one. The court sentenced Brady to consecutive
sentences of 25 years each for murder and for per-
sonally discharging the firearm that killed McDaniel,
for a total of 50 years.
B
In 2006, Brady filed a pro se post-conviction petition
in state court arguing, among other things, that his trial
counsel was ineffective for failing to present several
witnesses. Attached to the petition were affidavits from
four people—Marshawn Brady, Sondra Burke, Elliott
Moore, and Flora Small—stating what testimony they
would have provided had they been called.
Marshawn Brady is Brady’s stepfather. In his affidavit,
he swore that he and Brady’s mother went to the apart-
ment after the shooting to get Brady’s daughter. While
Brady’s mother tended to the daughter, Marshawn
forced his way into Brady and McDaniel’s bedroom
and ransacked the room looking for valuables. Marshawn
said that the bedroom was neat when he entered and

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8 No. 11-3365
that he alone was responsible for the disarray Officer
Dunigan encountered later that morning.
Sondra Burke, a friend, stated in her affidavit that
she saw McDaniel alive at 12:20 a.m., when she picked
up Brady from the couple’s apartment. She drove Brady
to her house, stopping at a payphone along the way so
that Brady could call his mother. Brady and Burke
spent about 35 minutes at Burke’s apartment, and then
Burke drove Brady home because his mother was
coming to pick him up. Burke dropped Brady off at his
apartment at 1:10 a.m. Burke’s testimony thus would
have established that McDaniel could not have been
shot before 1:10 a.m., and also that Brady’s mother was
on her way to the apartment when the shooting occurred.
Elliott Moore, also a friend, was prepared to testify
that he saw Brady running down Wabash Street around
2:00 a.m. Brady told Moore that McDaniel had been
shot and that he needed to pick up his daughter, who
was back at the apartment. Moore drove Brady to the
apartment, and Brady went inside. He came back out
several minutes later, crying and screaming that his
apartment had been ransacked and his daughter kid-
napped. Brady used Moore’s cell phone to call Provident
Hospital. He told Moore that McDaniel had been trans-
ferred to Cook County Hospital. Moore’s testimony
would have corroborated Marshawn’s story, and
would have shown that Brady checked on McDaniel
after leaving the hospital.
Finally, Brady’s aunt, Flora Small, stated in her
affidavit that Brady called her around 2:30 a.m. on the

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No. 11-3365 9
day of the shooting. Brady asked Small if she had taken
his daughter from the apartment. He was crying and
told her that McDaniel had been shot and that his apart-
ment had been ransacked. Small told Brady to come
over. When Brady arrived, he made a phone call and
then told Small that his daughter was with his grand-
mother. Brady told Small that he accidentally had shot
McDaniel while she was folding clothes. He carried her
into the kitchen, and when his mother arrived shortly
thereafter, he carried her down to his mother’s car and
asked his mother to drive them to the hospital. After
realizing that his daughter was still in the apartment,
he tried to borrow Riley’s car. When she refused to let
him use it, he made his way toward his apartment on
foot until a friend picked him up and drove him the rest
of the way. Small’s testimony would have shown that
Brady described the shooting as an accident at least
once before meeting Makeeta Burke.
The state trial court dismissed Brady’s petition as
“frivolous and patently without merit.” The Illinois
appellate court affirmed, holding that Brady’s petition
failed to present a colorable claim of ineffective
assistance under Strickland v. Washington, 466 U.S. 668
(1984). The appellate court first found that counsel’s
performance was reasonable, both because Brady had
not alleged that any of his proposed witnesses had
ever shared the information in their affidavits with trial
counsel, and because “none of the witnesses appear to
have any direct knowledge of the shooting.” The court
further concluded that even if Brady could show that
counsel’s performance was deficient, he could not show

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10 No. 11-3365
that this deficient performance prejudiced his case,
because the witnesses’ “close relationship” to Brady
made it “unlikely” that their testimony would have
altered the outcome of the trial. The Illinois Supreme
Court denied Brady’s petition for leave to appeal.
Brady next filed a timely petition for habeas corpus
in the Northern District of Illinois. Again, he contended
that his lawyer had rendered ineffective assistance by
failing to call his proposed witnesses. After reviewing
this claim in considerable depth, the district court con-
cluded that although the state appellate court applied
federal law unreasonably in finding that trial counsel’s
performance was constitutionally adequate, see 28
U.S.C. § 2254(d)(1), its conclusion that Brady could not
show prejudice was entitled to deference. The district
court thus denied Brady’s petition, but it issued a certifi-
cate of appealability on his ineffective assistance claim.
III
The standard for evaluating a claim of ineffective assis-
tance of counsel is a familiar one: the court must assess
both whether counsel’s performance was deficient and
whether the defendant suffered prejudice as a result. In
Strickland, the Supreme Court explained that deficient
performance “requires [a] showing that counsel made
errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” 466 U.S. at 687. In evaluating performance,
“a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of rea-

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No. 11-3365 11
sonable professional assistance.” Id. at 689. As for preju-
dice, Strickland instructs that a defendant must do
more than show that his attorney’s conduct had “some
conceivable effect on the outcome,” though the “defendant
need not show that counsel’s deficient conduct more
likely than not altered the outcome in the case.” Id. at
693 (emphasis added). Instead, the “defendant must
show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable
probability is a probability sufficient to undermine con-
fidence in the outcome.” Id. at 694. The petitioner
must show both deficient performance and prejudice
in order to prevail.
Because Brady seeks relief from a state convic-
tion, we review his Strickland claim through the lens of
28 U.S.C. § 2254(d)(1), which permits a federal court
to issue a writ of habeas corpus only if the state court
reached a decision that was “contrary to, or involved
an unreasonable application of, clearly established
Federal law as determined by the Supreme Court.” This
standard is not met if the state-court decision is merely
incorrect; as the Supreme Court put it recently, an unrea-
sonable decision is one “so lacking in justification that
there was an error well understood and comprehended
in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 131 S. Ct. 770,
786-87 (2011). With this in mind, we turn to the specifics
of Brady’s claim.

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12 No. 11-3365
A
As we noted earlier, the district court was satisfied
that the Illinois appellate court had addressed both the
performance aspect of the Strickland inquiry and the
prejudice question. Although the state court’s opinion is
somewhat vague in this respect—it speaks of presenting
the “gist” of a constitutional claim—we agree with our
colleague that a generous reading of the state-court
opinion supports this result. In the district court’s view,
the state court’s conclusion that the performance
of Brady’s lawyers was constitutionally effective was
unreasonable, even under the deferential standard re-
quired by Section 2254(d)(1). But because the district
court found that the state court’s ruling that Brady was
not prejudiced by this deficient performance lay within
the bounds of reason, it denied relief.
The Illinois appellate court offered a single justifica-
tion for its conclusion that Brady could not demonstrate
prejudice: “Finally, we note that each of the affiants
was either a friend or relative of defendant. Accordingly,
based on their close relationship to defendant, it is
unlikely that even if the witnesses had been called,
that their testimony would have altered the trial result.”
This reasoning is deeply problematic. Witnesses with
ties of family or friendship to a defendant are a
common feature in criminal cases, and those witnesses
are often privy to details that influence the outcome of
a case. The state court pointed to nothing in the record
that would support the assumption that the trial court
would not have credited the witnesses’ testimony solely

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No. 11-3365 13
because of their association with Brady. Indeed, the
law does not demand, or even permit, the disregarding
of their testimony just because they are close to the ac-
cused. Cf. Raygoza v. Hulick, 474 F.3d 958, 965 (7th Cir.
2007) (counsel was deficient for failing to call family
and family friends of defendant as alibi witnesses). While
the trier of fact would have been entitled to take the
relationships into account in assessing the witnesses’
credibility, the appellate court was wrong, to the point
of being unreasonable, to conclude that this fact meant
that the absence of their testimony could not possibly
have made any difference.
Perhaps recognizing this, the state makes little effort
to defend the appellate court’s rationale for its prejudice
ruling. Instead, it encourages us to apply Section
2254(d)(1)’s deferential standard to the bottom-line con-
clusion, asserting that the Supreme Court’s recent
decision in Richter supports this approach. It argues
that we should actively disregard the explanation the
appellate court gave and instead either invent a chain
of reasoning under which the state court’s conclusion
can be reconciled with established federal law as deter-
mined by the Supreme Court or at least look back to the
record before the trial court and see if the result can be
supported that way. Although the district court did
not spell out this line of thought, it may have agreed. In
the final analysis, the district court set aside the state
appellate court’s stated reason for finding lack of
prejudice and weighed the evidence for itself, just as a
court would do if it were reviewing a Strickland claim
in the first instance. See 466 U.S. at 695-96. Using that

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14 No. 11-3365
methodology, the district court concluded that because
the proffered testimony would not have rebutted those
aspects of the case that figured most prominently in
the trial court’s finding of guilt, the appellate court’s
finding of no prejudice was not unreasonable.
Lying behind the state’s argument are two questions
that bear on the administration of Section 2254(d)(1):
first, whether Richter (a) applies only to cases in which
the state court offers no reasoning, or instead (b) holds
in effect that federal courts should always entirely disre-
gard the state court’s rationale and decide independently
if the bottom line is justifiable; and second, if Richter
applies only to summary dispositions, how a federal
court should evaluate a case in which the state court
offers a reason, but that reason is either wrong
as a matter of law or patently irrational. Since the oral
argument in this case, the Supreme Court has addressed
these points, in Johnson v. Williams, 133 S. Ct. 1088 (2013).
The focus of the Court’s opinion in Williams was
the meaning of the “adjudication-on-the-merits require-
ment” in 28 U.S.C. § 2254(d). In that sense, Williams
followed up on the Court’s earlier decision in Richter,
where it had considered how to approach cases in
which “state-court relief is denied without an accom-
panying statement of reasons.” 131 S. Ct. at 780.
Richter held that the deferential standard set out in
Section 2254(d) applies even in such a case. Id. at 784.
The Court there was not concerned that such a
holding would induce state courts to withhold explana-
tions for their decisions. Id. Nor did it credit the argu-

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No. 11-3365 15
ment that it is impossible to know if a summary disposi-
tion was on the merits or not. Instead, it endorsed a
presumption that such a resolution was on the merits
unless “there is reason to think some other explanation
for the state court’s decision is more likely.” Id. at 785.
Having established that Section 2254(d) applies to sum-
mary dispositions, the Richter Court concluded by re-
viewing the merits of the case and ruling that the
state court’s conclusion—that Richter had received con-
stitutionally adequate assistance of counsel—should
not be disturbed. Id. at 792.
Williams took the next step: it addressed the issue
that arises “when a defendant convicted in state court
attempts to raise a federal claim, either on direct appeal
or in a collateral state proceeding, and a state court
rules against the defendant and issues an opinion that
addresses some issues but does not expressly address
the federal claim in question.” 133 S. Ct. at 1091. Richter,
it held, pointed the way to the proper resolution of
that issue. Under these circumstances, “the federal
habeas court must presume (subject to rebuttal) that
the federal claim was adjudicated on the merits.” Id.
The Court suggested several ways in which a petitioner
might rebut the presumption: if the state court relies
exclusively on state law, and the state standard is less
protective than the federal one, rebuttal could occur; or
the governing federal standard might simply have
been “mentioned in passing in a footnote or [been]
buried in a string cite.” Id. at 1096. In instances like
those, either the petitioner might rebut the presump-
tion and show that the federal court should review

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16 No. 11-3365
the claim de novo, or the state might rebut the presump-
tion and show that the federal claim was procedurally
defaulted. Id. Furthermore, the Court held, “[i]f a
federal claim is rejected as a result of sheer
inadvertence, it has not been evaluated based on the
intrinsic right and wrong of the matter.” Id. at 1097.
Such a claim has not been evaluated on the merits, and
thus does not satisfy the requirements of Section 2254(d).
Id. Concurring in the judgment, Justice Scalia also
rejected “the proposition that a judgment denying a
federal claim is irrebuttably presumed to have been ‘ad-
judicated on the merits’ within the meaning of 28 U.S.C.
§ 2254(d),” but he did not share the majority’s view
that one permissible way to rebut the presumption is
to show that the federal claim was inadvertently over-
looked. Id. at 1099.
Williams therefore confirms the fact that the state
court’s reasoning continues to be relevant wherever it
has given an explanation, notwithstanding the holding
in Richter. The presumption the Williams Court adopted,
however, means that state courts must be given the
benefit of the doubt when their opinions do not cover
every topic raised by the habeas corpus petitioner.
Federal courts will still need to evaluate whether the
state court’s conclusion was “contrary to” authority
from the Supreme Court in light of the state court’s ex-
planation for its holding. The same is true of the “unrea-
sonable application” branch of the statute; the Supreme
Court speaks of looking at the state-court opinion to see
if it “identifies” the correct principle but unreasonably
applies it to the case at hand. Williams v. Taylor, 529 U.S.

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No. 11-3365 17
at 413. This is precisely what the Court did in cases such
as Rompilla v. Beard, 545 U.S. 374 (2005), and Wiggins v.
Smith, 539 U.S. 510 (2003), when it had a reasoned decision
before it. Nothing in Johnson v. Williams indicates that
these decisions have been undermined.
Brady’s case presents a variant on the pattern
described by Johnson v. Williams. Reading the state-court
opinion generously, we have already decided to treat it
as addressing both parts of the Strickland in-
quiry—performance and prejudice. The problem is
thus not silence; it is what to do if the last state court
to render a decision offers a bad reason for its decision.
And more particularly, the question is what should
happen when a person argues ineffective assistance
of counsel, which requires application of a two-part
test: inadequate performance and prejudice. Is this a
single “claim” for purposes of Section 2254(d), or should
the performance and prejudice elements be assessed
separately? In earlier cases, the Supreme Court has as-
sessed each element independently for Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA) pur-
poses. In Wiggins, for example, the Court applied AEDPA
deference to the performance branch of Strickland, and it
reviewed the prejudice question de novo. 539 U.S. at 534.
But it did so without any discussion of the one-claim/two-
claim question. If this aspect of Wiggins is still good law,
then the standard of review can change for individual
elements of a claim. This is so despite the fact that, for
purposes of ultimate relief, we have understood Sixth
Amendment challenges to the effectiveness of counsel as
a single “claim.” See, e.g., Pole v. Randolph, 570 F.3d 922,

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18 No. 11-3365
934-35 (7th Cir. 2009); Peoples v. United States, 403 F.3d 844,
848 (7th Cir. 2005). On the other hand, if it is the claim
as a whole that qualifies (or not) for treatment under
Section 2254(d)(1), then the standard of review would
remain consistent for both elements. The Supreme
Court recently denied certiorari in two cases raising
this very question, see Wolfenbarger v. Foster, No. 12-420
(Mar. 18, 2013), and Bland v. Lemke, No. 12-594 (Mar. 18,
2013), and so, for the time being, the courts of appeal
will continue to confront this question without guidance
from the Court. As we now explain, however, the
choice between these standards makes no difference to
the outcome here.
In Brady’s case, the Illinois appellate court was the
only state tribunal to address Brady’s Strickland claim,
and it found neither deficient performance nor preju-
dice. The district court explained why it thought the
former finding was unreasonable, and we have
indicated why the reason expressed for the finding on
prejudice was wrong. (Brady additionally argues
that the Illinois appellate court’s decision should be
rejected under the “contrary to” part of Section 2254(d)(1),
but like the district court, we see no merit in this point.
The state court may have paraphrased Strickland a bit,
but there is no substantive difference between the
standard it used and the one required by the Supreme
Court.) Under Johnson v. Williams and Richter, it is clear
that a bad reason does not necessarily mean that the
ultimate result was an unreasonable application of estab-
lished doctrine. A state court could write that it re-
jected a defendant’s claim because Tarot cards dictated

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No. 11-3365 19
that result, but its decision might nonetheless be a
sound one. If a state court’s rationale does not pass
muster under the Williams v. Taylor standard for Sec-
tion 2254(d)(1) cases, the only consequence is that
further inquiry is necessary.
At that point, it is no longer appropriate to attach
any special weight to the last state court’s expressed
reasons. The court’s judgment, however, is another
matter. With the last state court’s reasoning set aside, the
federal court should turn to the remainder of the state
record, including explanations offered by lower courts.
The only question in that situation is whether AEDPA
deference applies to those lower state-court decisions, or
if review is de novo. In close cases, it is conceivable that
the choice of standard might make a difference: if the
lower courts’ reasoning was incorrect, then the result
might be set aside on de novo review but not (as
Richter explained) under AEPDA. But it is unlikely that
the standard would affect very many cases. It is worth
recalling that the pre-AEDPA standard was also quite
deferential to the state courts. See Richter, 131 S. Ct. at
788 (“Even under de novo review, the standard for
judging counsel’s representation is a most deferential
one.”); Morales v. Johnson, 659 F.3d 588, 599 (7th Cir.
2011) (“[W]e review the petitioner’s constitutional claim
with deference to the state court, but ultimately
de novo.”) (internal quotation marks omitted). If the
record as a whole supports the state court’s outcome,
then even under de novo review the correct result
would be to deny the petition for a writ of habeas corpus.

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20 No. 11-3365
B
The kind of independent review we have described is
the best that Brady can hope for, and so we now
consider whether he can prevail under that approach.
Prejudice, for purposes of Strickland, exists if there is “a
reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different.” 466 U.S. at 694. The state trial court
offered several reasons for its conclusion that the
shooting was not accidental: (1) its evaluation of Brady’s
statement to Makeeta Burke that the shooting was an
accident as a fabrication intended to maintain his rela-
tionship with her; (2) its adverse inference from
Brady’s behavior after the shooting, including (a) the
fact that Brady called his mother, rather than 911 or his
neighbors, for assistance following the shooting, (b) the
fact that Brady sought to borrow a car and fresh
clothes from his grandmother rather than returning
with his parents to his apartment to retrieve his
daughter, (c) Brady’s failure to return to the hospital
or otherwise check on McDaniel, and (d) Brady’s flight
to California and assumption of an alias.
Even setting aside the (likely) possibility that much of
the witnesses’ proposed testimony is inadmissible
hearsay, we conclude that this testimony does not under-
mine the guilty verdict. Elliott Moore’s and Flora
Small’s testimony would have shown that Brady
was crying and emotionally distressed the night of the
shooting, but this is not especially probative. Brady
might just as well have been crying in remorse for

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No. 11-3365 21
having murdered McDaniel or in fear of being caught as
for having shot her accidentally. Marshawn Brady’s
testimony that he was responsible for the chaotic state
of Brady and McDaniel’s bedroom would have under-
mined the prosecution’s theory that McDaniel and
Brady fought before the shooting. On the other hand,
Marshawn’s story fails to account for the blood all over
the room; it is highly implausible; and it is largely irrele-
vant given that the trial court offered no indication that
it relied on the disarray in the bedroom in any way.
Sondra Burke’s testimony would have established that
McDaniel was taken to the hospital very shortly after
being shot, and thus that she did not go untreated for
very long. It also suggested that Brady relied on his
mother to take him and McDaniel to the hospital
because she was on her way to their apartment prior to
the shooting. Once again, this is of peripheral im-
portance at best; the trial court mentioned delay only
briefly, and Burke’s testimony says nothing about most
of the damning information.
None of the proffered witnesses offers a plausible
alternative explanation for Brady’s decision to flee. Al-
though Small’s testimony (if admissible) would have
established that Brady claimed to have shot McDaniel
accidentally on at least one occasion before he met
Makeeta Burke—a fact that would tend to undermine
the inference that his statement to Burke was
false—other features of Brady’s flight to and time spent
hiding in California remain unexplained. Importantly,
none of the witnesses suggests why Brady fled rather
than cooperate with the police, nor do they explain his

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22 No. 11-3365
use of an alias. As Brady’s flight was one of the most
important considerations behind the trial court’s ver-
dict, this gap in the witnesses’ testimony is significant.
Given that so much of the proposed testimony
was only marginally exculpatory, we do not find a rea-
sonable probability that but for counsel’s deficient per-
formance, the result of the proceedings would have
been different. Having failed to establish prejudice
even under the more generous standard of review,
Brady cannot show ineffective assistance of counsel and
is thus not entitled to a writ of habeas corpus. We
would reach the same result if we were reviewing the
entire state court record using the standards set out
in Section 2254(d). Either way, we AFFIRM the judgment
of the district court.
4-1-13

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