Mick, Daniel v. Tegels, Lizzie

              IN THE UNITED STATES DISTRICT COURT                        
             FOR THE WESTERN DISTRICT OF WISCONSIN                       


DANIEL J. MICK,                                                          

                   Petitioner,                                           
                                           OPINION and ORDER             
     v.                                                                  


                                               23-cv-24-jdp              
LIZZIE TEGELS,                                                           

                   Respondent.                                           


    Petitioner Daniel J. Mick, appearing by counsel, seeks a writ of habeas corpus under 
28 U.S.C. § 2254. Mick challenges his state court convictions for one count of first-degree 
sexual assault of a child and two counts of causing a child to view a sexually explicit conduct. 
Mick contends that the trial court’s exclusion of his proposed expert testimony violated his 
right to present a defense and that both his trial and his original postconviction/appellate 
counsel were ineffective. In particular, he contends that trial counsel was ineffective by failing 
to object to testimony by a forensic examiner about the credibility of the alleged victim, his 
6-year-old stepdaughter “Joan,” and by failing to properly impeach Joan’s mother, “Cindy.”1 
He contends that his postconviction/appellate counsel failed to investigate his claims and 
erroneously advised Mick that he could file either a postconviction motion or an appeal, but 
not both.                                                                 
    The trial was largely a credibility contest between Mick and Joan, who presented a 
compelling, credible account of the abuse through a recorded interview by a forensic examiner. 

1 I will use the same pseudonyms for these parties as the Wisconsin Court of Appeals did in its 
most recent decision denying Mick postconviction relief. State v. Mick, 2022 WI App 55, 
2022 WL 2176271.                                                          
I conclude that Mick fails to show that the Wisconsin Court of Appeals unreasonably applied 
clearly established federal law or made unreasonable determinations of the facts in concluding 
that it was appropriate for the trial court to exclude Mick’s proposed expert testimony. I also 
conclude that some of Mick’s ineffective-assistance-of-counsel claims are procedurally barred. 

And for various reasons, including the strength of Joan’s recorded interview, I conclude that 
Mick does not show that he is entitled to habeas relief on his remaining ineffective-assistance 
claims. Accordingly, I will deny his petition.                            

                         BACKGROUND                                      
    The following facts are taken from the petition and the state court records provided by 
Mick and the state.                                                       
    Mick was charged with two counts of first-degree sexual assault of a child and two 
counts of causing a child under 13 to view sexually explicit conduct. The alleged victim was 

Joan, Mick’s 6-year-old stepdaughter. Joan’s mother, Cindy, was married to Mick, but by 2015 
they were on the verge of a divorce and a custody battle over their son. Cindy first reported 
the allegations that Mick had sexually abused Joan on November 19, 2015, the same day that 
Cindy learned that Mick was seeking a harassment injunction against her and had filed for 
divorce. Soon after Cindy reported the allegations of sexual assault, Detective Cheryl Patty of 
the Dane County Sherriff’s Office conducted a videorecorded forensic interview with Joan.  
    Joan discussed two incidents in her recorded statement, both occurring in August 2015. 
The first incident occurred at the family’s home. Joan stated that Mick showed Joan a video 

on his phone about “how to make babies” and describing oral sex. Dkt. 15-1, at 11. Joan stated 
that Mick showed Joan his “private part,” “shaked [his penis] with his hand,” and described 
“stuff” that was “white” “coming out of his private part.” Id. at 12–13. Joan added, “He didn’t 
do anything to me.” Id. at 14.                                            
    The second incident occurred in the family’s van. Mick took Joan out for ice cream for 
a “daddy girls day.” Id. at 15. Joan said that as it got dark, Mick drove to a park but wasn’t 

driving safely because “he was looking at the bad stuff on the phone.” Id. at 16. Mick asked 
Joan if she “want[ed] to put [her] mouth on his private part.” Id. at 17. Mick convinced Joan 
to do that. Joan stated that then “[t]here was stuff coming out of it, in my mouth and then he 
let me have a drink of water.” Id. at 18. She discussed the color, taste, and temperature of 
Mick’s semen.                                                             
    Mick pleaded not guilty to all charges. Mick’s trial counsel retained David Thompson, 
Ph.D., a clinical and forensic psychologist, to review the forensic interview of Joan and records 
from the criminal case. Thompson provided a report and a supplement “describ[ing] a variety 

of factors present in this case that extensive research has shown affects the reliability of a child’s 
statements.” Thompson listed six factors that may “have either strengthened or weakened the 
reliability of the statements made by the victim.” Dkt. 15-2, at 5.       
    The state moved to exclude Dr. Thompson’s testimony, arguing that it would not assist 
the jury in understating the evidence or finding facts, and that it would cause confusion of the 
issues or mislead the jury. After a hearing on pretrial motions, the trial court excluded 
Thompson’s testimony, stating that the information in Thompson’s report wouldn’t help the 
jury understand the issues and that defense counsel could do as effective a job of critiquing the 

reliability of Joan’s interview using common-sense concepts. Mick moved to reconsider, but 
the trial court denied that motion.                                       
    The trial took place in March 2017. Mick’s trial counsel’s opening statement focused 
on the allegations of abuse coming from Cindy and that law enforcement didn’t challenge or 
question the allegations.                                                 
    The state called several witnesses, including Detective Patty and Cindy. At trial, the 

state presented testimony from Patty on her training in conducting forensic interviews, the 
importance of protocols in conducting such interviews, and how such interviews reduce a 
child’s suggestibility.                                                   
    During a break in Patty’s testimony, Joan’s video-recorded interview was played to the 
jury. After that, Patty continued to testify. On cross-examination, Mick’s trial counsel elicited 
from Patty testimony that the interviewer’s role wasn’t to challenge or question the answers 
given by the child, that Patty did not follow up on answers that Joan gave about Cindy telling 
her things to ascertain exactly what Cindy told her, and that Patty didn’t ask specific questions 

about what Cindy or Joan’s grandparents told Joan or what Joan overheard from other 
conversations.                                                            
    Mick’s counsel then asked Patty about the concepts of credibility and reliability, with 
Patty eventually saying that, “[t]o me, [Joan’s] testimony or her interview, the information she 
provided, I view that as credible,” and “[t]o me, credible and reliable are nearly interchangeable, 
in my opinion.” Dkt. 6-2, at 357, 358.2 Mick’s trial counsel did not object to those answers or 
move to strike them.                                                      



2 The trial transcript is broken into separate docket entries for each day of trial but is 
consecutively paginated. See Dkt. 6. I cite to the consecutive page numbering rather than the 
numbering for each separate day of trial.                                 
    After Patty’s testimony, the defense was allowed to call Joan as a follow up to her 
recorded interview. In her live testimony, Joan did not recall any of the events with Mick other 
than that she got ice cream with him, nor could she remember the video interview.  
    The state also called Cindy. On direct examination, Cindy stated that on November 19, 

2015, she spoke with a police officer about Mick seeking a restraining order against her; she 
discussed Mick having what she described as a pornography addiction. Cindy stated that after 
the phone call, Joan said that she overheard the conversation and said that she knew what 
“porn videos” were, and she then told Cindy about Mick having her watch pornography and 
about him sexually assaulting her. Cindy then called back the police.     
    On cross-examination, Mick’s counsel attempted to impeach Cindy’s credibility and 
suggest that her motive was to encourage Joan to make false allegations. He questioned her 
about her assertion that Joan first reported Mick’s abuse after Cindy’s first phone call with 

police; other testimony showed that Cindy reported at least some of this misconduct in the 
first phone call. Counsel pressed Cindy on a heated text exchange between Mick and Cindy 
the day before. Cindy acknowledged that they were headed toward divorce and fighting over 
child custody, that she used Mick’s password to break into his email and other online accounts, 
and that she told him she found things in his email that she would use against him in court. 
She admitted that she texted something along the lines of, “Have fun trying to win this [child 
custody] case.” Id. at 470. Cindy admitted that a restraining order was ultimately issued against 
her at least in part based on Cindy’s texts. Counsel also referred to a text message attached to 

the restraining order in which Cindy told Mick, “You haven’t seen me yet, Bitch. You want to 
play dirty, I’ll get FILTHY on you.” Id. at 466. Cindy testified that she did not remember 
making that statement, but also did not deny that she had.                
    Mick  testified  that  there  was  an  instance  in  which  Cindy  caught  him  viewing 
pornography on his phone while Joan was in the same room watching television (an incident 
that was not the basis for the criminal charges). He denied ever inviting Joan to watch 
pornography or having any kind of sexual contact with Joan.               

    There were no third-party witnesses to the incidents, no physical evidence was recovered 
from Mick’s vehicle, and no evidence was recovered from Mick’s telephone. 
    In its closing argument, the state discussed reasons for believing Joan’s video testimony 
and argued the implausibility of Cindy fabricating a story of abuse and coaching Joan to repeat 
it. The state noted that Mick initially denied to police that there was a “daddy-daughter date” 
(the basis for the second charged incident) and then gave a timeline of that evening with Joan 
that the state argued was inconsistent with other testimony.              
    For his closing argument, Mick’s trial counsel focused on the suspicious timing of Cindy 

reporting sexual abuse allegations immediately after she was called by police about harassing 
Mick, and on law enforcement gathering information to build a case against Mick rather than 
investigating whether the allegations were true. In particular, in discussing Detective Patty’s 
interview of Joan, counsel stated law enforcement’s attitude as, “You are not to question any 
of the stories. They just write them down and pass them on.” Dkt. 6-3, at 665. Counsel also 
suggested that Joan’s story was coached by Cindy.                         
    The jury found Mick guilty of one count of first-degree sexual assault of a child under 
13 and two counts of intentionally causing a child under 13 to listen to and view sexually 

explicit conduct. The one acquittal was on the count of first-degree sexual assault for the first 
incident—the incident regarding which Joan testified, “He didn’t do anything to me.” 
    Through postconviction/appellate counsel, Mick directly appealed his judgment of 
conviction without first filing a postconviction motion. Mick argued that the trial court erred 
by granting the state’s motion in limine to exclude proposed expert Thompson from testifying 
at trial and that the exclusion of that testimony violated his constitutional right to present a 

defense. The Wisconsin Court of Appeals affirmed the decision of the trial court, concluding 
that Thompson’s testimony was appropriately excluded because “the probative value of the 
testimony of Mick’s expert is outweighed by its prejudicial effect.” State v. Mick (Mick I), 
2018 WI App 45, ¶ 34, 2018 WL 3004636. The Wisconsin Supreme Court denied Mick’s 
petition for review.                                                      
    In  September  2019,  Mick  filed  a  pro  se  motion  for  postconviction  relief  under 
Wis. Stat. § 974.06. Among other things, Mick argued that trial counsel was ineffective by 
failing to properly impeach Cindy, including with a text message from Cindy to Mick stating 

that Joan was “admitting lots of stuff” to a counselor, Dkt. 15-11, at 9, and by failing to object 
to Detective Patty describing Joan’s testimony as credible. The state moved to summarily 
dismiss the motion because Mick hadn’t raised his ineffective assistance of counsel claims in a 
postconviction motion before his direct appeal and because the motion didn’t allege sufficient 
facts to entitle him to relief. In April 2020, the trial court granted the state’s motion to dismiss 
Mick’s § 974.06 motion without holding a Machner hearing to obtain testimony from Mick’s 
trial counsel, stating that Mick failed to raise his ineffective assistance claims at the proper 
time,  before  his  direct  appeal.3  The  court  stated  that  Mick  discussed  this  claim  with 

postconviction/appellate counsel but that counsel didn’t consider it wise to raise too many 

3 State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).       
issues on appeal, and that counsel believed that an ineffective-assistance-of-counsel argument 
would likely be rejected. The court went on to consider the substance of Mick’s claims regarding 
the  failure  to  attack  Cindy’s  credibility  or  object  to  Detective  Patty  opining  on  Joan’s 
credibility. The court concluded that counsel wasn’t deficient because he had “vigorously” 

attacked Cindy’s credibility in multiple ways at trial, Dkt. 15-9, at 3, and because trial counsel’s 
questioning of Patty was a strategic decision to emphasize Patty’s failure to explore Joan’s 
potential suggestiveness by asking Joan about what Cindy told her.        
    In July 2020, through newly retained postconviction counsel (who are also representing 
Mick in this habeas action), Mick filed what he called a “supplemental” § 974.06 motion 
raining new claims for relief and seeking reconsideration of the trial court’s previous decision.4 
The  state  again  moved  for  summary  dismissal.  After  briefing  the  motions  and  hearing 
argument, the trial court denied Mick’s supplemental motion without a Machner hearing, 

stating that Mick didn’t have a sufficient reason to bring new claims for postconviction relief, 
and that in any event none of his claims were meritorious.                
    Mick appealed the trial court’s rulings on his § 974.06 motions. In June 2022, the state 
court of appeals affirmed the trial court, rejecting on the merits Mick’s ineffective-assistance 
claims from his original pro se § 974.06 motion, and concluding that the new postconviction 
arguments that Mick raised in his supplemental motion were procedurally barred. State v. Mick 



4 Throughout the proceedings, the parties have disputed whether this motion was a supplement 
to Mick’s pro se § 974.06 motion or a second § 974.06 motion altogether. The state court of 
appeals stated that “[t]he State’s point about nomenclature is well taken” but nonetheless 
referred to Mick’s motion as “supplemental” because that’s how it was titled. State v. Mick, 
2022 WI App 55, ¶ 6 n.5, 2022 WL 2176271. I will do the same.             
(Mick II), 2022 WI App 55, 2022 WL 2176271. The state supreme court denied Mick’s 
petition for review.                                                      
    I will discuss additional facts as they become relevant to the analysis. 

                           ANALYSIS                                      

    Federal courts may grant habeas relief only if the state court’s denial of relief “was 
contrary to, or involved an unreasonable application of, clearly established Federal law, as 
determined by the Supreme Court of the United States” or “was based on an unreasonable 
determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)–(2). 
A state court’s adjudication is “contrary to” clearly established Supreme Court precedent if the 
court either: (1) reaches a conclusion on a question of law opposite to that reached by the 
Supreme Court; or (2) decides a case differently than the Supreme Court has on materially 
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412–13 (2000). Under § 2254(d)(1)’s 

“unreasonable application” clause, courts may grant the writ if the state court identifies the 
correct governing legal principle from the Supreme Court’s decisions but unreasonably applies 
that principle to the facts of the case. Id. at 413. For the application to be unreasonable, a state 
prisoner “must show that the state court’s decision is so obviously wrong that its error lies 
beyond any possibility for fairminded disagreement.” Shinn v. Kayer, 592 U.S. 111, 118 (2020) 
(per curiam). Similarly, for a state court’s factual finding to be unreasonable, there must be no 
possibility of reasonable agreement with the finding. See Brumfield v. Cain, 576 U.S. 305, 
313–14 (2015); Wood v. Allen, 558 U.S. 290, 301–02 (2010). When applying § 2254(d), courts 

look to “the last reasoned state-court decision to decide the merits of the case, even if the state’s 
supreme court then denied discretionary review.” See Dassey v. Dittmann, 877 F.3d 297, 302 
(7th Cir. 2017) (en banc); see also Wilson v. Sellers, 584 U.S. 122, 125 (2018). In this case, that 
means that I must review the 2018 and 2022 decisions by the Wisconsin Court of Appeals. 
    Mick brings the following claims for relief:                         
      •  The trial court violated his right to present evidence by excluding proposed 
         expert testimony by Dr. David Thompson.                         
      •  Trial counsel was ineffective by failing to object to statements from forensic 
         interviewer Patty vouching for Joan’s credibility.              
      •  Trial counsel was ineffective by failing to impeach Cindy with additional text 
         messages from Cindy and investigate evidence supporting that impeachment. 
      •  His original postconviction/appellate counsel was ineffective by failing to raise 
         his ineffective assistance of trial counsel claims, failing to review the audio 
         recording of Cindy admitting that Joan hadn’t received counseling, and by 
         advising him that he couldn’t pursue both a postconviction motion and an 
         appeal.                                                         
A.  Exclusion of Dr. Thompson’s testimony                                 
    Mick contends that the trial court violated his right to present evidence by excluding 
proposed expert testimony by Dr. David Thompson. Thompson’s proposed expert report 
discussed six factors that can strengthen or weaken the reliability of a child’s statements in a 
forensic interview:                                                       
      •  “Repeated  interviewing,”  which  either  “can  result  in  additional  accurate 
         information” or can result in inaccurate information if the interviewer is biased 
         or uses “inappropriate interviewing techniques.” Dkt. 15-2, at 6. Thompson 
         considered Joan’s discussions with Cindy to be interviews, along with the formal 
         video  interview  by  Detective  Patty.  Thompson  stated  that  “the  multiple 
         interviews of [Joan] by her mother raise significant concerns about the reliability 
         of [Joan]’s statements. It will be important for the jury in this matter to be aware 
         of the potential impact of these multiple interviews on [Joan]’s recollection and 
         statements.” Id. at 7.                                          
      •  “External  influences,”  such  as  “simply  over-hearing  other  people  talk  in  a 
         negative manner about an individual can lead to the child making reports 
         consistent with the negative characteristics attributed to the person in question.” 
         Id. Thompson noted that Cindy held suspicions about Mick’s behavior as early 
         as July 2015 and may have discussed them with Joan’s grandparents, but 
         acknowledged that “no information is available concerning the specifics of those 
         interactions including the extent to which [Joan]’s mother used leading or 
         suggestive questions with her daughter or the extent to which the overheard 
         conversations  between  [Joan]’s  mother  and  grandparents  included  negative 
         comments  concerning  Mr.  Mick.”  Id.  Thompson  stated  that  “[i]t  will  be 
         important for the jury in this matter to understand the ease with which children 
         of  [Joan]’s  age  can  be  influenced  by  negative  stereotypes,  overheard 
         conversations, and comments made by parents.”                   
      •  “Inappropriate interviewing techniques” such as leading or yes/no questions, and 
         “social reinforcement . . . or disapproval for specific statements” can result in 
         inaccurate reports. Id. Thompson stated that Patty’s showing her badge to Joan 
         at the outset was the type of “display of . . . authority” that can “negatively 
         impact the reliability of children’s reports.” Id. at 8. But he otherwise stated that 
         Patty “generally followed acceptable child interview guidelines” and “did a 
         reasonable job of avoiding leading, suggestive, or other inappropriate questions.” 
         Id.                                                             
      •  “Interviewer  bias”  or  “confirmatory  bias  . . . .  occurs  when  an  interviewer 
         approaches an interview with a preconceived notion of what may have occurred.” 
         Id. Thompson believed that this bias may have been revealed by instances when 
         Joan gave answers to questions suggesting an “alternative hypothesis” that she 
         was influenced by discussions with her mother but Patty didn’t follow up to 
         probe that possibility. Id. However, Thompson noted that Party did follow up 
         appropriately when Joan said “‘My daddy [ejaculated] too’” and Patty asked 
         “‘How do you know.’” Id.                                        
      •  “Therapy effects” regarding psychotherapeutic techniques that “help[] the child 
         review  and  process  the  traumatic  events  and  to  cope  effectively  with 
         communication problems.” Id. at 9. Thompson stated that he “was not privy to 
         any specific psychotherapy records” but noted that Cindy had texted Mick to 
         say that Joan was in counseling. Id. (Other evidence—perhaps unavailable to 
         Thompson—shows  that  Cindy’s  statement  about  Joan  being  in  counseling 
         appears to have been a lie.)                                    
      •  “Source  misattribution  errors”  occur  when  an  interviewee  “identifies  the 
         incorrect source of a memory.” Id. These errors can be fueled by many influences, 
         including overhearing rumors, being asked leading questions or being subjected 
         to other inappropriate interview techniques, or mistakes of memory. Thompson 
         stated that Joan could have faulty memories from discussions with Cindy or 
         overhearing other negative comments about Mick.                 
    The trial court excluded Thompson’s testimony, stating that the information in the 
report didn’t show that Thompson’s “technical knowledge will assist the trier of fact,” and that 
instead the report presented “very common sense sort of things . . . that the attorney in the 
matter can cross examine the witness on, and . . . the jury doesn’t need the assistance of the 
professor to understand the testimony.” Dkt. 15-4, at 16. The court also stated that “[t]he 
professor himself indicates that the overall questioning was the interviewer did a reasonable 

job of avoiding leading, suggestive, or otherwise inappropriate questions,” and thus [a] “critique 
by the professor would simply confuse the issues about whether some questions are better than 
others, but it does not help the trier of fact in determining whether to believe the memory or 
credibility of the witness other than what just as effectively can be done by cross.” Id. at 16–17.  
    The state court of appeals affirmed the decision of the trial court, applying the test for 
defense expert testimony set forth in State v. St. George, 2002 WI 50, ¶ 54, 252 Wis. 2d 499, 
643 N.W.2d 777, and concluding that Thompson’s testimony was appropriately excluded 
because “the probative value of Thompson’s testimony was substantially outweighed by the 

dangers of confusion of the issues and misleading the jury. It necessarily follows that the 
probative value of the testimony of Mick’s expert is outweighed by its prejudicial effect.” Mick I, 
2018 WL 3004636, ¶ 34. In doing so, the court compared this case to another case in which 
Thompson’s expert testimony was excluded, State v. Schmidt, 2016 WI App 45, 370 Wis. 2d 
139, 884 N.W.2d 510. The court stated:                                    
         The proffered testimony by Thompson here is remarkably similar  
         to that which we held was properly excluded in Schmidt, 370 Wis. 
         2d 139, ¶86. In Schmidt, Schmidt sought to offer testimony by   
         Thompson  regarding  the  reliability  of  statements  by  a  child 
         witness. Thompson submitted a report that detailed many of the  
         same factors described above which the jury should consider when 
         evaluating  the  accuracy  of  the  child  witness’s  statements. 
         However,  “Thompson  acknowledged  he  could  not  offer  an    
         opinion that [the child witness’s] testimony or memory was in   
         fact  tainted  by  any  of  the  suggestive  interview  techniques 
         generally expounded upon in his report.” Although we affirmed   
         the exclusion of Thompson’s testimony on relevancy grounds, we  
         concluded that “[e]ven if Dr. Thompson’s testimony had a razor- 
         thin degree of relevancy,” “the evidence would have been properly 
         excluded under WIS. STAT. § 904.03” because “[w]hat minimal     
         probative value Thompson’s testimony may have had regarding     
         [the child’s] credibility was easily outweighed by the very real 
         potential that Thompson’s testimony would mislead or confuse    
         the jury.”                                                      
         As in Schmidt, so here Thompson offered only broad speculative  
         statements  about  how,  “it  will  be  important  for  the  jury  to 
         understand” that each of the factors he described, in theory,   
         “could,”  “may,”  or  have  “the  potential”  to  affect  [Joan]’s 
         statements.  As  in  Schmidt,  so  here  Thompson  offered  no  
         testimony that [Joan]’s forensic interview was in fact conducted 
         improperly, that [Joan]’s interview statements were in fact the 
         product of the phenomena Thompson discussed in his report, or   
         that any suggestive interview techniques had in fact occurred.  
Id., ¶ 31 (all alterations except the first are from Mick I) (citations omitted). The court also 
emphasized Thompson’s finding that “‘[o]verall, the interviewer did a reasonable job of 
avoiding leading, suggestive, or other inappropriate questions.’” Id., ¶ 32 (quoting Dkt. 15-2, 
at 8) (alteration in the state court of appeals’ opinion). It concluded that, as it stated in Schmidt, 
“if Thompson’s testimony were admitted into evidence, it is entirely probable the jury would 
conclude, based solely on the fact he was testifying, that suggestive interview techniques had 
been used with [the child] despite the absence of any evidence to that effect.” Id. (alteration in 
original) (internal quotation omitted).                                   
    In his habeas petition, Mick renews his contention that the trial court denied him of 
his right to present a defense by excluding Thompson’s proposed expert testimony. “Whether 
rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory 
Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees 
criminal defendants a meaningful opportunity to present a complete defense.” Holmes v. South 
Carolina, 547 U.S. 319, 324 (2006) (internal quotation omitted).          
    1.  Whether the court of appeals’ decision rested on state law       
    The state raises a preliminary argument that I should reject this ground for relief because  
the state court of appeals’ decision regarding the exclusion of Thompson’s testimony relied on 

state-law grounds rather than constitutional grounds. The state argues that “by agreeing that 
St. George controlled the issue in state court, [Mick] was essentially agreeing that the issue was 
one of state law, or at least forfeiting any argument directly under Chambers v. Mississippi, 
410 U.S. 284 (1973) or other federal cases.” Dkt. 10, at 12.              
    I  will  reject  this  argument.  The  state  court  of  appeals  recognized  the  federal 
constitutional dimensions to Mick’s claim, stating, “We have recognized that the confrontation 
and compulsory process clauses of the Sixth Amendment of the U.S. Constitution and Article 
I, Section 7 of the Wisconsin Constitution grant defendants a constitutional right to present 

evidence.” Mick I, 2018 WL 3004636, ¶ 33 (internal quotations omitted). The Wisconsin 
Supreme Court’s St. George’s analysis was explicitly created to apply the standards articulated 
in the relevant United States Supreme Court cases. See State v. St. George, 2002 WI 50, ¶ 52 
(citing Chambers and other Supreme Court decisions). The Wisconsin Court of Appeals’ 
application of St. George shows that it meant to apply constitutional standards even if it didn’t 
directly cite Supreme Court case law. See Early v. Packer, 537 U.S. 3, 8 (2002) (Section 2254(d) 
“does not require citation of our cases—indeed, it does not even require awareness of our cases, 
so long as neither the reasoning nor the result of the state-court decision contradicts them.” 

(emphasis in original)).                                                  
    2.  Merits                                                           
    I turn to the merits of Mick’s right-to-present-a-defense claim. Although the exclusion 
of evidence can violate a defendant’s right to present a defense, the defendant’s right is not 
absolute. Taylor v. Illinois, 484 U.S. 400, 410–11 (1988). “[T]he exclusion of even relevant 
evidence does not automatically create a due process violation,” because “states retain the right, 
also not absolute, to establish procedures for running their criminal trials.” Morgan v. Krenke, 
232 F.3d 562, 569 (7th Cir. 2000). A state’s evidentiary rules do not violate an accused’s right 

to present a defense unless they are “arbitrary or disproportionate to the purposes they are 
designed to serve.” Holmes, 547 U.S. at 324–25 (internal quotations omitted). Even when there 
is an error of state law, it is not this court’s role to correct it unless the error rises to the level 
of a constitutional violation. Morgan, 232 F.3d at 567. Rather, the only questions on habeas 
review in this court are whether the Wisconsin Court of Appeals unreasonably concluded that 
the exclusion of Thompson’s testimony did not violate Mick’s constitutional right to present a 
defense, or whether the court of appeals based its ruling on an unreasonable determination of 
the facts.                                                                

    Mick contends that the state court of appeals made multiple related errors of fact and 
of law in assessing this claim: (1) the court unreasonably compared this case to its previous 
decision in Schmidt because the two cases are too dissimilar to make valid comparisons: unlike 
here, in Schmidt Thompson did not have access to a recording or transcript of the child’s 
interview;  (2)  the  court’s  focus  on  Thompson’s  statement  that  Detective  Patty  “did  a 
reasonable job of avoiding leading, suggestive, or other inappropriate questions” improperly 
suggests that Thompson didn’t find any faults in the interview process; (3) the court made an 
error of fact by calling Thompson’s concerns “broad speculative statements” because in her 

interview Joan indeed repeated statements from Cindy such as “my mom told me that when, 
that [Mick] got his private part out and looking at the bad stuff and, and momma saw what’s 
on his phone and he told momma that he promise that he never do it again but he lied” and 
“my mom told me that [Mick] should not do that and he is going to get very in trouble,” 
Dkt. 15-1, at 7, 15; (4) the court unreasonably criticized Thompson for failing to say that 
“[Joan’s] interview statements were in fact the product of the phenomena Thompson discussed 
in his report” because had Thompson done so, that testimony would be excluded as improper 

commentary on Joan’s credibility.                                         
      a.  Determination of facts                                         
    I’ll start with Mick’s arguments about the facts as determined by the court of appeals. 
I take Mick’s argument about Schmidt to be that the court erred in considering his case to be 
close enough on the facts to Schmidt to adopt the reasoning from Schmidt in his case. But courts 
routinely use other cases to illustrate their reasoning; the court of appeals’ invocation of Schmidt 
doesn’t mean that it failed to consider the specific facts of Mick’s case. And counter to Mick’s 

argument, the court of appeals did not ignore the most notable difference between Mick’s case 
and Schmidt—that Thompson was indeed able to evaluate Joan’s forensic interview in Mick’s 
case after being unable to do so in Schmidt. The court of appeals’ discussion of Schmidt in Mick’s 
case doesn’t convince me that the court rested its decision on an unreasonable determination 
of the facts.                                                             
    Mick’s other asserted unreasonable applications of fact fare no better. The court of 
appeals didn’t ignore Thompson’s critiques of the interview process; it explicitly noted in its 
detailed  recounting  of  Thompson’s  report  that  Thompson  was  concerned  about  Joan’s 

“interviews” with Cindy, Joan potentially overhearing negative conversations about Mick, 
Patty’s failure to follow up some of (but not all of) Joan’s answers to probe alternative 
hypotheses,  and  potential  causes  for  source  misattribution  errors.  Nor  did  the  court 
unreasonably state that Thompson “offered only broad speculative statements” about his 
concerns. Mick states that Joan made specific comments in her forensic interview—apparently 
parroting things Cindy had told her—that supported Thompson’s concerns about improper 
influence and source misattribution errors. But Mick challenges the court of appeals’ discussion 
of the vagueness of Thompson’s analysis, not of Joan’s underlying statements. Given Thompson’s 

relatively abstract conclusions about how his various reliability factors applied to the facts of 
this case, it wasn’t unreasonable for the court of appeals to characterize Thompson’s analysis 
as broad or speculative. I conclude that the court of appeals didn’t base its rejection of Mick’s 
right-to-present-a-defense claim on an unreasonable determination of the facts.  
      b.  Application of law                                             
    That leaves Mick’s arguments about the reasonableness of the court of appeals’ legal 
reasoning rejecting his right-to-present-a-defense claim. To establish a violation of his right to 

present his defense, Mick must demonstrate that “(1) the testimony would have been ‘both 
material and favorable’ to his defense,” Harris v. Thompson, 698 F.3d 609, 626 (7th Cir. 2012) 
(quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982)), and “(2) the exclusion 
was ‘arbitrary’ or ‘disproportionate’ to the evidentiary purposes advanced by the exclusion,” id. 
(quoting United States v. Scheffer, 523 U.S. 303, 308 (1998) (citations omitted)). The exclusion 
of evidence is “material only if there is a reasonable likelihood that the testimony could have 
affected the judgment of the trier of fact.” Id. at 627 (internal quotation omitted). A garden-
variety evidentiary error that leads to the exclusion of evidence is not enough to warrant habeas 

relief. Fry v. Pliler, 551 U.S. 112, 126 (2007) (Breyer, J., concurring in part and dissenting in 
part).                                                                    
    The seminal case for the right to present a complete defense was Chambers. Chambers, 
charged with the shooting death of a police officer, sought to present evidence that another 
individual had repeatedly confessed to the crime, including in a sworn statement to Chambers’ 
counsel, but which he later repudiated. Chambers was not allowed to present that evidence at 
his trial because of two of Mississippi’s evidentiary rules: its voucher rule, which prohibited a 
party from impeaching his own witness, and its rule against hearsay. Id. at 294. The Supreme 

Court held that, by applying those rules “mechanistically,” Mississippi had substantially 
burdened Chambers’ rights to present witnesses in his own defense and confront the witnesses 
against him, which deprived him of a fair trial. Id. at 302.              
    Mick’s case isn’t like Chambers, in which strict enforcement of state evidentiary rules 
barred critically relevant evidence. Here, the state court of appeals correctly concluded that 
Thompson’s testimony simply didn’t add much to the case trial counsel otherwise presented. 
Even accepting Mick’s argument that the court of appeals incorrectly criticized Thompson’s 
report for failing to state that Joan’s interview statements were “in fact the product of the 

phenomena Thompson discussed in his report” because an opinion to that effect would have 
been excluded under Wisconsin law, the court of appeals still reasonably concluded that 
Thompson’s analysis had limited value because of his relatively abstract conclusions about how 
his various factors applied to the facts of this case. This was at least in part because Thompson 
didn’t know the contents of any conversations between Joan and Cindy, or between Cindy and 
other family members, so he wasn’t able to opine more specifically about how his factors 
applied to those conversations or Joan overhearing them. And Thompson’s factors tended to 
focus on “accidental” false memories that a child might misattribute from other conversations; 

they are less relevant to defense’s theory here of outright fabrication and coaching. It’s 
implausible  to  think  that  Joan  would  have  adopted  a  story  of  graphic  sexual  abuse  by 
overhearing a conversation. The report’s utility to Mick’s defense was also tempered by 
Thompson’s evaluation mostly approving of Detective Patty’s interview performance. And the 
court reasonably recognized that having Thompson testify about the dangers of suggestive 
interview techniques risked the jury concluding that such techniques had indeed been used 
without any underlying evidence for that conclusion.                      

    As for the individual statements of Joan’s repeating Cindy that Mick says refutes the 
court’s characterization of Thompson’s concerns as “broad speculative statements,” Mick 
doesn’t explain how those statements—mostly Cindy’s statements disapproving of Mick’s 
misconduct—help his defense. Mick notes that Joan did indeed make some comments he 
describes as “parroting” Cindy’s own statements. But that doesn’t follow that Joan’s direct 
testimony about the sexual abuse also parroted an earlier comment of Cindy. As the trial court 
pointed out in excluding Thompson’s testimony, Thompson’s factors were mostly common-
sense concepts about the ways a young child’s memory could be affected. In particular, the idea 

that a young child’s account of a story may be influenced by other conversations that the child 
has had or overheard isn’t a concept outside the knowledge of a jury. And even without 
Thompson’s testimony, trial counsel was able to present Mick’s defense theory about the 
impressionability of young children and law enforcement’s failure to challenge Cindy’s and 
Joan’s accounts.                                                          
    Mick also argues that the trial court’s exclusion of Thompson’s expert testimony was 
arbitrary because it allowed the state’s expert testimony by Detective Patty bolstering the 
reliability of Joan’s forensic interview. See Kubsch v. Neal, 800 F.3d 783, 798 (“One way a state 

rule of evidence may be arbitrary is where it restricts the defense but not the prosecution. 
Several cases in the Chambers line have emphasized this ‘parity’ principle . . . .” (internal 
quotation omitted)), vacated on other grounds after rehearing en banc granted, 838 F.3d 845 (7th 
Cir. 2016). Mick doesn’t meaningfully develop this argument, which would be reason enough 
to reject it. In any event, the facts here do not support a “parity” argument. This wasn’t a case 
in which particular evidence was admissible for the state but not for the defendant. The trial 
court simply made separate assessments about the admissibility of two experts, applying 

standard evidentiary principles. This is the type of “garden-variety” evidentiary ruling that does 
not deprive a defendant of his constitutional right to present a defense. Holmes, 547 U.S. at 
330 (right to present a defense is not violated by evidentiary rules that “focus the trial on the 
central issues by excluding evidence that has only a very weak logical connection to the central 
issues”).                                                                 
    Therefore, I conclude that the Wisconsin Court of Appeals did not unreasonably apply 
Supreme Court principles in rejecting Mick’s right-to-present-a-defense argument. So Mick is 
not entitled to habeas relief on this ground.                             

B.  Ineffective assistance of counsel                                     
    Claims of ineffective assistance of counsel are governed by Strickland v. Washington, 
466 U.S. 668 (1984). The state court of appeals properly identified Strickland’s two-part test 
for reviewing these claims. Mick II, 2022 WL 2176271, ¶ 21. To establish that counsel provided 
ineffective assistance, Mick must show that counsel’s performance was deficient and that the 
deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. To prove deficient 
performance, Mick must show that counsel’s performance “fell below an objective standard of 

reasonableness” as measured by prevailing professional norms. Id. at 688. Courts must “indulge 
a  strong  presumption  that  counsel’s  conduct  falls  within  the  wide  range  of  reasonable 
professional  assistance.”  Id.  at  689.  To  prove  prejudice,  Mick  must  show  “a  reasonable 
probability that, but for counsel’s unprofessional errors, the result of the proceeding would 
have been different.” Id. at 694.                                         
    It is “all the more difficult” to prevail on a Strickland claim under § 2254(d). Harrington 
v. Richter, 562 U.S. 86, 105 (2011). Because the standards that Strickland and § 2254(d) create 

are both “highly deferential,” review is “doubly” so when the two apply in tandem. Id. The 
question is not whether counsel’s actions were reasonable, but rather, “whether there is any 
reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. 
    1.  Procedural default                                               
    The state contends that all of Mick’s ineffective assistance of counsel claims are 
procedurally defaulted. A claim is procedurally defaulted, and thus barred from federal review, 
if “the last state court that rendered judgment ‘clearly and expressly states that its judgment 

rests on a state procedural bar.’” Lee v. Foster, 750 F.3d 687, 693 (7th Cir. 2014) (quoting 
Harris v. Reed, 489 U.S. 255, 263 (1989)) (additional internal quotation omitted). To bar 
federal habeas review, the state procedural ground must be “‘independent of the federal 
question and adequate to support the judgment.’” Id. (quoting Coleman v. Thompson, 501 U.S. 
722, 729 (1991)). A state law ground is independent “when the court actually relied on the 
procedural bar as an independent basis for its disposition of the case.” Id. (internal quotation 
omitted). “A state law ground is adequate when it is a firmly established and regularly followed 
state practice at the time it is applied.” Id. (internal quotation omitted). 

    Mick litigated his ineffective assistance of counsel claims in two different filings: his 
original pro se Wis. Stat. § 974.06 motion and his later counseled “supplemental” § 974.06 
motion.                                                                   
      a.  Mick’s pro se § 974.06 motion                                  
    The state contends that the state court of appeals held that the ineffective-assistance 
claims raised in Mick’s pro se motion were barred under State v. Allen, 2004 WI 106, ¶ 12, 274 

Wis. 2d 568, 682 N.W.2d 433, which allows a state circuit court to deny a postconviction 
motion without a hearing if the facts alleged in the motion do not entitle the movant to relief, 
if  key  factual  allegations  in  the  motion  are  conclusory,  or  if  the  record  conclusively 
demonstrates that the movant is not entitled to relief. “Allen’s pleading standard is an adequate 
and independent state procedural rule.” Whyte v. Winkleski, 34 F.4th 617, 625 (7th Cir. 2022). 
But the Allen rule applies as a procedural bar only when state courts have deemed the 
allegations in petitioners’ pleadings too conclusory to satisfy Strickland. See Stinson v. Fuchs, 
No. 20-cv-1101-jdp, 2023 WL 172481, at *3 (W.D. Wis. Jan. 12, 2023).      

    The state court of appeals did not rely on this part of Allen to rule on the Strickland 
claims  in  Mick’s  pro  se  motion.  Instead,  the  court  assumed  without  deciding  that 
postconviction/appellate  counsel’s  erroneous  advice  that  Mick  couldn’t  file  both  a 
postconviction motion and a direct appeal was a sufficient reason for not earlier raising his 
ineffective assistance of counsel claims. The court stated, “It follows that the issues raised in 
[Mick’s] pro se motion are not procedurally barred, and we address them on the merits in this 
following section of this opinion.” Mick II, 2022 WL 2176271, ¶ 18. I conclude that Mick’s 
ineffective assistance of trial counsel claims raised in his pro se § 974.06 motion are not 

procedurally barred.                                                      
      b.  Mick’s counseled supplemental § 974.06 motion                  
    The state also contends that any argument Mick made in his counseled supplement to 
his § 974.06 motion is procedurally barred. The only issue from the supplemental motion that 
appears in his habeas petition is a portion of his claim about trial counsel failing to properly 
impeach Cindy. Mick alleged in the supplemental motion that counsel didn’t review an audio 
recording of Cindy telling police that Joan hadn’t received counseling, arguing that counsel 
should have used the recording to impeach Cindy’s inconsistent statement that Joan was 

“admitting lots of stuff” in counseling.                                  
    The state court of appeals concluded that the supplemental motion’s arguments were 
barred by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994) (petitioner 
procedurally barred from raising claim in postconviction motion that could have been raised in 
a § 974.02 postconviction motion or appeal, unless defendant provides “sufficient reason” for 
not raising the issues in that earlier proceeding); see also State v. Lo, 2003 WI 107, ¶ 44, 264 
Wis. 2d 1, 665 N.W.2d 756 (“all claims of error that a criminal defendant can bring should be 
consolidated into one motion or appeal, and claims that could have been raised on direct appeal 

or in a previous § 974.06 motion are barred from being raised in a subsequent § 974.06 
postconviction motion absent a showing of a sufficient reason for why the claims were not 
raised on direct appeal or in a previous § 974.06 motion.” (citing Escalona-Naranjo)). The court 
reasoned that Mick didn’t give a good reason for failing to raise those arguments in his earlier 
pro se § 974.06 motion. Mick II, 2022 WL 2176271, ¶ 19. The court took Mick to argue that 
“he did not raise these issues in his pro se motion because he is not a trained lawyer and ‘lacked 
knowledge regarding the factual or legal basis for some of the claims.’” Id. ¶ 20. The court 
concluded, “To the extent that Mick is relying on an asserted lack of knowledge of ‘the factual 

or legal basis’ for ‘some’ of the new claims, this assertion is conclusory and undeveloped” and 
that his pro se status alone wasn’t a sufficient reason for failing to raise a claim earlier. Id. 
(citing Allen, 2004 WI 106, ¶ 9). Ordinarily, this would mean that these arguments are 
procedurally defaulted in this court as well.                             
    Mick contends that the state court of appeals erred in concluding that his reasons for 
not raising his arguments in his original pro se motion were conclusory and undeveloped. Mick 

argues that his trial and appellate court filings properly explained the basis for him raising new 
arguments for the first time in his supplemental motion. In particular, regarding his ineffective-
assistance claim about the audio recording of Cindy telling police that Joan hadn’t received 
counseling, Mick argues that the court of appeals’ ruling was not an “adequate” application of 
Allen’s pleading standard because the court of appeals ruling was “based on a completely 
unreasonable finding of fact” that Mick sought another chance to bring that claim merely 
because of his status as a pro se litigant. Instead, he explicitly argued in the state court of 
appeals that he deserved another chance to raise that claim because he was previously unaware 

of the existence of the audio recording. Dkt. 19, at 34. This doubles as his argument to 
overcome procedural default by “establish[ing] cause for and prejudice from the default.” 
Whyte, F.4th at 624.                                                      
    I disagree with Mick’s argument that the court of appeals misconstrued his briefing, so 
I won’t disregard the court’s application of Escalona-Naranjo and Allen. By referring to Mick’s 
pro se status, the court apparently took Mick to argue that he was unaware of the audio 
recording when he filed his pro se § 974.06 motion and that he needed counsel to discover that 
evidence. In any event, the court didn’t rely solely on Mick’s pro se status: it explicitly stated 

that Mick’s asserted lack of knowledge was “conclusory and undeveloped.” I agree that Mick’s 
counseled supplemental § 974.06 motion contained very little explanation for Mick’s inability 
to discover the audio recording or legal authority supporting an exception from Escalona-
Naranjo. The court of appeals adequately applied state case law in concluding that Mick’s 
claims were defaulted.                                                    
    The same reasoning precludes Mick from showing cause for and prejudice from the 
default. “Cause requires a showing of some type of external impediment that prevented [the 

petitioner] from presenting his claims.” Garcia v. Cromwell, 28 F.4th 764, 775 (7th Cir. 2022) 
(internal quotation omitted). As the state points out, Mick had no right to counsel in his post-
appeal § 974.06 proceedings and no pressing deadline to file his original pro se motion 
(§ 974.06(2) states that a motion “may be made at any time”). So Mick’s ignorance of the 
audio recording because of ineffective assistance of previous counsel isn’t sufficient cause to 
give him a second chance at a § 974.06 motion. Cf. Garcia, 28 F.4th at 775 (“But errors by 
counsel in the first round of postconviction proceedings cannot serve as cause to excuse Garcia’s 
own default in the second.”). Moreover, Mick doesn’t show cause for his counsel’s failure to 

meet the Allen pleading standard in his supplemental motion.              
    Another exception to procedural default “applies only in the rare case where the 
petitioner can prove that he is actually innocent of the crime of which he has been convicted.” 
Wilson v. Cromwell, 69 F.4th 410, 421 (7th Cir. 2023) (internal quotations omitted). To 
establish an actual innocence claim, Mick “must show that it is more likely than not that no 
reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo, 
513 U.S. 298, 327 (1995). To qualify for this narrow exception, Mick must provide “new 
reliable  evidence—whether  it  be  exculpatory  scientific  evidence,  trustworthy  eyewitness 

accounts, or critical physical evidence—that was not presented at trial.” Id. at 324. But Mick 
doesn’t make an actual innocence argument, nor is the audio recording here the type of striking 
new evidence contemplated in Schlup that would be necessary to show that Mick was actually 
innocent of the offense.                                                  
    To summarize, Mick’s ineffective-assistance claims raised in his pro se § 974.06 motion 
are not procedurally barred, but the portions of his claims related to counsel’s failure to 

properly review or use an audio recording of Cindy are procedurally barred. 
    2.  Trial counsel’s failure to object to Detective Patty’s testimony on Joan’s 
      credibility                                                        
    I turn to the substance of Mick’s Strickland claims. Mick contends that trial counsel was 
ineffective by failing to object to or move to strike non-responsive testimony given by Joan’s 
forensic interviewer, Detective Patty, on cross-examination. Mick says that these statements 
vouched for Joan’s credibility, in violation of State v. Haseltine, 120 Wis. 2d 92, 96, 352 
N.W.2d 673, 676 (Ct. App. 1984) (“No witness, expert or otherwise, should be permitted to 
give an opinion that another mentally and physically competent witness is telling the truth.”). 
    The testimony at issue is Patty’s responses to Mick’s trial counsel asking her about the 
concepts of credibility and reliability:                                  

         Q. Now, in your training and experience, are you familiar with the 
         difference between credibility and reliability?                 
         [Objection overruled]                                           
         WITNESS PATTY: I’ve heard both of those terms, yes.             
         Q. In your training and experience you’ve not—are you able to   
         describe the difference between the two from your training and  
         experience in this field?                                       
         [Objection overruled]                                           
         WITNESS PATTY: I use the term credible when, if—in this case,   
         when this child was providing her statement, she was providing  
         her information in a free, narrative form. When asked to tell me 
         about that and then what happened, she was able to give a free  
         flowing description of what happened. There were no questions   
         to her of, Your dad did this, didn’t he, or things like that that she 
         was then prompted to answer yes or no to in that kind of context. 
         To  me,  her  testimony  or  her  interview,  the  information  she 
         provided, I view that as credible.                              
         In regards to reliable, I use the word reliable frequently in search 
         warrants, subpoenas when I am citing information that’s been    
         provided to me in an investigation and I’m trying to obtain     
         through legal means documents, or search a home, or any other   
         item that I might be trying to obtain evidence from, and I am   
         relying on information that’s been provided to me as part of the 
         information.                                                    
         Q. Would you say that credibility means that the person making  
         that statement believes it is true?                             
         [Objection overruled]                                           
         WITNESS PATTY: In general, I would agree with that.             
         Q. And then reliably, something being reliable means that it’s  
         actually true?                                                  
         [Objection overruled]                                           
         WITNESS  PATTY:  To  me,  credible  and  reliable  are  nearly  
         interchangeable, in my opinion.                                 
         Q. Nearly?                                                      
         A. I would use them -- I would use them fairly interchangeably. 
Dkt. 6-2, at 356–58.                                                      
    Mick doesn’t challenge counsel’s effectiveness in eliciting this testimony; the court of 
appeals characterized this line of questioning as trial counsel’s “attempt[] to show that the 
purpose of the forensic interview was to collect information from Joan, not to test the veracity 
of her statement.” Mick II, 2022 WL 2176271, ¶ 47. It noted that counsel’s performance in 
asking those questions wasn’t deficient just because he “may not have gotten all of the answers 
he hoped for,” but it assumed without deciding that counsel’s failure to object or move to strike 
Patty’s answers was deficient. Id.                                        
    Despite its assumption that counsel’s failure to object was deficient, the court concluded 
that Mick was not prejudiced by that failure. Id., ¶ 48. The court noted that counsel argued at 

closing that the truth of Joan’s statements was uncertain because Patty assumed that Cindy’s 
report was true and didn’t probe into whether Joan was coached. The court concluded that it 
did “not see any reasonable probability that the jury would have credited this defense theory 
had  the  court  stricken  the  testimony  in  question.”  Id.  Mick  argues  that  this  reasoning 
“improperly inverts the reasonable probability analysis,” because the question under Strickland 
isn’t whether there was a reasonable probability that the jury would have credited a particular 
defense theory, but rather where there is a reasonable probability that the jury would have 
come to a different verdict without the error. Dkt. 19, at 30.            

    I am not inclined to conclude that the court of appeals’ analysis unreasonably applied 
Strickland. I take the court to have meant that Patty’s responses were helpful to Mick’s theory 
at trial that law enforcement believed in Mick’s guilt and didn’t challenge Joan’s testimony, 
and thus counsel successfully striking that testimony wouldn’t have changed the outcome.  
    But  even  if  the  state  court  of  appeals  did  misapply  Strickland,  Mick  would  not 
automatically be entitled to habeas relief; instead, de novo review would apply to the prejudice 
prong of his Strickland claim. See, e.g., Thomas v. Clements, 789 F.3d 760, 768 (7th Cir. 2015) 
(if state court’s adjudication of a claim was unreasonable under § 2254(d)(1), federal habeas 

review of that claim is de novo). Even if I reviewed this issue de novo, Mick has not shown that 
counsel’s failure to object to and move to strike Patty’s statements was prejudicial. 
    Mick argues that Patty’s statements were crucial because “[t]his was a credibility case, 
dependently entirely upon the credibility of Joan’s forensic interview accusations, and the error 
involved an expert witness vouching for the credibility of those accusations.” Dkt. 19, at 30. I 
agree that the trial was largely a credibility contest, but the lack of direct corroborating evidence 

doesn’t mean that the state’s case was weak. Joan’s testimony was powerful, providing graphic 
accounts of pornography, masturbation, and sexual abuse, including the characteristics of 
semen, that a 6-year-old wouldn’t be expected to provide on her own, or to have learned by 
simply overhearing a conversation. The state pointed out inconsistencies in Mick’s accounts of 
events in court and to police. And state argued the implausibility that Joan was coached into a 
fabricated account of sexual abuse by Cindy.                              
    It’s also unlikely that the jury’s takeaway from the exchange was that Patty clearly 
endorsed Joan’s testimony as truthful. Her remarks were made as part of an awkward attempt 

by  counsel  to  distinguish  “credibility”  and  “reliability.”  Patty’s  initial  answer  was  that 
“credible” had to do with the flow of Joan’s testimony (“providing her information in a free, 
narrative form”), as contrasted with her initial definition of “reliable” having more to do with 
the accuracy of the information. She then agreed with the notion that “credible” means that 
the person saying something believes that it’s true, before blending the concepts of credibility 
and reliability together. Additionally, this exchange came shortly after Patty testified that child 
interviews would be scheduled at all only if there was “credible information that a child has 
been put at risk,” Dkt. 6-2, at 310, giving the jury another different use of the term. It’s far 

more likely that the jury was left confused  by the whole exchange and Patty’s shifting 
explanations.                                                             
    Besides being part of a confusing exchange, the negative impact of Patty’s remarks was 
minimal; it was not referred to in later testimony or argument to bolster the state’s case. An 
objection or request to strike from Mick’s trial counsel could have led the jury to focus on the 
remarks more. And, as the state court of appeals noted, trial counsel gave the jury reasons to 

doubt Patty’s statements; her remarks to some degree played into Mick’s defense theory that 
law enforcement thought the abuse had happened and focused more on building a case against 
Mick than pushing to get at the truth of what actually happened, and that Patty avoided 
challenging Joan in spots where she could have probed into the idea that Cindy had coached 
her.                                                                      
    For all these reasons, I conclude that Mick hasn’t shown a reasonable probability that 
the jury would have come to a different verdict without this error. I will not grant Mick’s habeas 
petition on this ground.                                                  

    3.  Trial counsel’s failure to impeach Cindy with additional text messages  
    Mick contends that trial counsel was ineffective by failing to impeach Cindy with 
additional text messages between her and Mick exchanged on November 18, 2015 (the day 
before Cindy shared Joan’s allegations with police). Mick says that the texts bolstered his 
theory that Cindy manipulated Joan into fabricating her allegations against Mick. Those texts 
included:                                                                 
      •  Trust me. With a porn addiction, jerking off with [Joan] on the same couch, 
         your control issues, your felony and anger issues and working with [G]race and 
         my detective, you won’t win. At all                             
      •  Cause I whack off INFRONT of my 6 year old? Okay                
      •  BTW. [Joan] is in counseling. She’s admitting lots of stuff. The therapist will 
         use it in court. The detective will also be in court as well as my attorney. 
      •  [Our son]’s best with me where he is safe from a potential pedophile and a felon.  
      •  Well no, a legit pedophile..just not legally named one.         
      •  I’ve been in counseling and so has [Joan].                      
Dkt. 15-11, at 7–10.                                                      
    Mick argues that trial counsel lacked a strategic purpose to fail to cross-examine Cindy 
about these messages given counsel’s defense theory that Cindy manipulated Joan into making 

false allegations. Mick states that the messages would have established Cindy’s motive to lie 
regarding the child custody case, and contradicted her trial testimony denying that she made 
threats about a child custody case or claimed to be gathering evidence against Mick.  
    Both Mick and the state court of appeals focused on the message stating that Joan was 
in counseling and “admitting lots of stuff” that could be used against Mick in court. The court 
of appeals concluded that counsel                                         
         could have had an objectively reasonable strategic reason for not 
         addressing this topic in cross-examination. It is apparent that 
         counsel’s strategy was to persuade the jury that Cindy made up  
         the allegation on November 19, in response to learning about the 
         harassment injunction. Any assertion that Joan said something to 
         a therapist before November 19 that could be used against Mick  
         in court might have undermined that strategy.                   
Mick II, 2022 WL 2176271, ¶ 38.                                           
    Mick notes that the trial court didn’t hold a Machner hearing giving trial counsel a 
chance to explain the reasoning for his various decisions, and he argues that the court of appeals 
“may not invent strategic explanations on counsel’s behalf.” Dkt. 19, at 32 (citing Harris v. 
Reed, 894 F.2d 871, 787 (7th Cir. 1990) (“Just as a reviewing court should not second guess 
the strategic decisions of counsel with the benefit of hindsight, it should also not construct 
strategic defenses which counsel does not offer”)). But subsequent decisions have made clear 
that because the Strickland standard is an objective one, it is not improper for courts to 
hypothesize a lawyer’s strategic rationale when one is apparent from the record. Richter, 
562 U.S. at 109 (“Although courts may not indulge post hoc rationalization for counsel’s 
decisionmaking that contradicts the available evidence of counsel’s actions, neither may they 
insist counsel confirm every aspect of the strategic basis for his or her actions.” (citation and 

internal quotation omitted)); Meyers v. Gomez, 50 F.4th 628, 645 (7th Cir. 2022) (“For us to 
presuppose, when counsel is unavailable to explain his decision-making, that he had no 
strategic rationale for the particular choice at issue—when a choice clearly was made—would 
turn [Strickland’s presumptions of defense counsel’s effectiveness] on their head.”). 
    The record supports the state court of appeals’ assessment of counsel’s performance. 
Impeaching Cindy with the messages could have undermined the defense theory that Cindy 
fabricated the allegations that Joan told her about Mick’s abuse after Cindy learned about the 
restraining order. In his opening statement, counsel stated that “[t]he timing of this is crucial, 

that when they call [Cindy] about her harassing behavior, [Mick] is now accused for the first 
time ever of child molestation, of sexually assaulting her” and that the jury should “listen to 
where these stories sprang from. They also started with [Cindy] in the middle of a divorce.” 
Dkt. 6-1, at 166, 168. Counsel impeached Cindy’s credibility by eliciting testimony from her 
about the timing of her first reporting the assaults that contradicted a police officer’s testimony 
and contemporaneous report stating that Cindy reported an assault during their first phone 
call, directly after learning of Mick’s push for a restraining order. And in his closing argument, 
counsel  emphasized  that  discrepancy  and  the  suspicious  timing  of  Cindy  making  this 

accusation  right  after  learning  that  Mick  sought  a  restraining  order  in  the  middle  of  a 
contentious child custody dispute. Evidence that Joan was earlier making accusations of sexual 
abuse in counseling wouldn’t fit that theory. The court of appeals’ ruling that counsel’s 
performance met Strickland’s deferential standard was reasonable.         
    The state court of appeals also reasonably applied Strickland in finding no prejudice from 
this decision. As the court stated, counsel “vigorously” cross-examined Cindy, Mick II, 2022 

WL 2176271, ¶ 29, damaging her credibility by revealing that she had broken into Mick’s 
email and other online accounts and threatened to get “filthy” in the child custody dispute, 
and by catching her in a falsehood about the timing of her first reporting sexual abuse of Joan. 
Yet the jury still ultimately believed Joan’s account. Mick’s argument that further cross-
examination about additional texts would have tipped the scales is unpersuasive. The court of 
appeals reasonably concluded that “it is far more likely that the jury may have believed that 
Cindy had a motive to hurt Mick and had not been honest about the timing and circumstances 
of Joan’s disclosure, but that the jury also believed that Joan’s underlying statements about 

Mick’s conduct were true.” Id., ¶ 39.                                     
    Mick makes a related argument that trial counsel was ineffective by failing to introduce 
a copy of Mick and Cindy’s heated text exchange as an exhibit, leaving “the jury with the false 
impression that Cindy’s denials were trustworthy.” Dkt. 19, at 32. But the state court of 
appeals reasonably concluded that even if the complete exchange were allowed into evidence 
by the trial court, it “contained unfiltered and salacious allegations about Mick and demeaning 
language and insults from Mick that could have been very damaging in the eyes of the jury,” 
Mick II, 2022 WL 2176271, ¶ 40. It was reasonable for counsel to confront Cindy with specific 

texts on cross-examination instead. And in any event, it’s implausible that the jury believed 
Cindy’s attempts at avoiding responsibility for the texts: the trial court noted in denying Mick’s 
supplemental § 974.06 motion that “[Cindy’s] demeanor at trial indicated that she had said 
something along those lines. As I indicated, her head went down and her voice quieted.” 
Dkt. 6-6, at 41. The court of appeals reasonably concluded that there was no prejudice in 
counsel failing to introduce the text exchange as an exhibit.             
    Mick also attempts to bolster this ground for relief with the argument that trial counsel 

failed to completely review discovery, which would have revealed the audio recording proving 
that Cindy was lying about Joan having previously received counseling. But I’ve already 
concluded that this line of argument is procedurally defaulted. Mick isn’t entitled to habeas 
relief on this ground.                                                    
    4.  Postconviction/appellate counsel                                 
    Mick contends that his original postconviction/appellate counsel was ineffective by 
failing to raise Mick’s ineffective assistance of trial counsel claims, failing to review the audio 

recording of Cindy admitting that Joan hadn’t received counseling, and by advising Mick that 
he couldn’t pursue both a postconviction motion and an appeal. The state court of appeals 
assumed without deciding that the issues that Mick raised in his pro se § 974.06 motion 
weren’t procedurally barred because of postconviction/appellate counsel’s advice that Mick 
couldn’t pursue both a postconviction motion and an appeal.               
    It’s clear that it would be deficient performance to erroneously tell a client that he had 
to choose between a postconviction motion and an appeal. But Mick’s asserted prejudice from 
this deficiency is the failure to earlier raise his ineffective assistance of trial counsel claims that 

the state court of appeals ultimately rejected in Mick II and that I conclude are not the basis 
for habeas relief. So postconviction/appellate counsel’s ineffectiveness isn’t the basis for habeas 
relief either. And any claim of postconviction/appellate counsel’s ineffectiveness regarding 
issues raised in Mick’s supplemental petition are procedurally barred.    
    5.  Aggregate error                                                  
    Mick also makes an “aggregate error” argument under Alvarez v. Boyd, 225 F.3d 820, 
824 (7th Cir. 2000) (“Trial errors which in isolation are harmless might, when aggregated, alter 

the course of a trial so as to violate a petitioner’s right to due process of law.”). The state court 
of appeals rejected a similar argument, stating that “there is nothing to cumulate in this case” 
because trial counsel’s failure to object to Detective Patty’s testimony on Joan’s credibility was 
the only potential deficiency. Mick II, 2022 WL 2176271, ¶ 48 n.18. Because I also conclude 
that counsel’s failure to object to Patty’s testimony was the only error regarding the issues 
raised in Mick’s habeas petition, there is no aggregate error. Alvarez, 225 F.3d at 825 (“[I]f 
there was no error, or just a single error, there are no ill effects to accumulate.”). 
    Because none of Mick’s claims succeed, I will deny his petition for habeas relief.  
C. Certificate of appealability                                           

    The remaining question is whether to grant Mick a certificate of appealability. Under 
Rule 11 of the Rules Governing Section 2254 Cases, I must issue or deny a certificate of 
appealability when entering a final order adverse to a petitioner. To obtain a certificate of 
appealability, the applicant must make a “substantial showing of the denial of a constitutional 
right.” 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S. 274, 282 (2004). This means that 
“reasonable jurists could debate whether (or, for that matter, agree that) the petition should 
have been resolved in a different manner or that the issues presented were adequate to deserve 

encouragement to proceed further.” Miller El v. Cockrell, 537 U.S. 322, 336 (2003) (internal 
quotations and citations omitted). Although I am not persuaded by Mick’s arguments, I will 
grant him a certificate of appealability.                                 
                       ORDER                                        
IT IS ORDERED that:                                                  
1.  Petitioner’s Daniel Mick’s petition for a writ of habeas corpus under 28 U.S.C. 
 § 2254, Dkt. 1, is DENIED.                                         
2.  Petitioner is GRANTED a certificate of appealability.            
3.  The clerk of court is directed to enter judgment and close the case. 
Entered July 22, 2025.                                               
                        BY THE COURT:                               

                        /s/                                         
                        ________________________________________    
                        JAMES D. PETERSON                           
                        District Judge