RIPPLE, Circuit Judge.

Gordon E. Sussman was charged in Wisconsin state court with multiple counts of possession of child pornography, two counts of repeated sexual assault of the same minor and two counts of exhibiting harmful material to a minor. A jury convicted Mr. Sussman on the child pornography and sexual assault charges, but acquitted him of the harmful-material counts. After exhausting avenues of review in state court, Mr. Sussman filed an application for a writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Western District of Wisconsin, challenging his convictions for child sexual assault. The district court denied Mr. Sussman relief, but granted him a certificate of appealability with respect to his claim that he received ineffective assistance of counsel at trial. We conclude that, in assessing the prejudice suffered by Mr. Sussman through the exclusion of the disputed evidence, the Wisconsin appellate court unreasonably applied the Confrontation Clause of the Sixth Amendment, as made applicable to the states through the Fourteenth Amendment. Accordingly, we reverse the judgment of the district court and remand the case with instructions to issue a writ of habeas corpus unless the State elects to retry Mr. Sussman.

I

BACKGROUND

A. Facts

Mr. Sussman was convicted in Wisconsin state court of possession of child pornography and repeated sexual assault of the same minor, Scott. The testimony at trial established the following course of events.

1.

In 1998, Scott was in the third grade at West Middleton Elementary School, which Mr. Sussman's children also had attended. At the request of the principal, Mr. Sussman became a mentor to Scott. In this role, he would come to school and help Scott with his work. However, they also would spend time together outside of school; initially, these activities included biking, canoeing and kayaking. A few times per month, Mr. Sussman took Scott to Rutabaga, Mr. Sussman's business. Scott testified that, when he was at Mr. Sussman's office, they would view pornographic pictures. Scott also testified that, when viewing pornography, he or Mr. Sussman masturbated each other. These sexual activities took place in other places as well; in all, Scott estimated that they masturbated each other "[p]robably over 50 [times]." Tr. 230.1

In 1999, Mr. Sussman ceased to mentor Scott. The circumstances surrounding the termination of the formal mentoring relationship are unclear. It appears that Mr. Sussman had given Scott a book, which Scott took with him to school; at trial, Scott could not recall the name of the book. A teacher found the book and believed it was inappropriate for school. Although the school mentoring relationship ended, Mr. Sussman continued to see Scott outside of school.

In October 2000, Scott moved from Wisconsin to Indiana and lived there for about a year and a half. He saw Mr. Sussman only occasionally during this period. In April 2002, Scott moved back to Wisconsin to live with his sister. Shortly after arriving there, Mr. Sussman took Scott shopping and also brought him to Rutabaga to view pornography and to masturbate. Scott also related other incidents of sexual contact both before and after his return to Wisconsin.

In May 2002, Scott moved back to Indiana. Up until this point, Scott had not told anyone about the abuse because he "was embarrassed and . . . thought it [sexual contact] was right." Id. at 278. However, in July 2002, Scott told his mother, Joann McDonald, about the abuse. According to the testimony at trial, friends of McDonald, who had been abused themselves, advised McDonald that "Scott was acting like someone that had been sexually abused." Id. at 1097. McDonald related these discussions to Scott and instructed him: "[T]ell me honestly have you ever been, has anybody ever touched you or done anything to you that felt uncomfortable." Id. at 313. When Scott confirmed her suspicions, McDonald reported the abuse to the authorities. Mr. Sussman ultimately was charged in Wisconsin state court with sixteen counts of possession of child pornography, two counts of repeated sexual assault of the same minor and two counts of exhibiting harmful material to a minor.

2.

At trial, defense counsel's strategy was to cast doubt on Scott's credibility in two ways. Counsel first intended to expose the inconsistencies in the statements that Scott had made to the police and to others.2 Defense counsel also planned on introducing prior false allegations of sexual assault that Scott had made against his father.

a.

Mr. Sussman's counsel first confronted Scott with the inconsistent versions of events that he had related to investigating officers. Scott's first interview was with Mark Rochon of the Valparaiso, Indiana Police Department. After Scott recounted all of the incidents of abuse that he could remember, Officer Rochon advised Scott and his mother that none of these occurred within the jurisdiction of the Valparaiso Police Department. Defense counsel resumed his cross-examination of Scott by discussing that statement by Officer Rochon:

Id. at 316.

Defense counsel also brought to light how, only one hour after speaking with Officer Rochon, Scott spoke with Detective Horn and described the incident at Inman's Recreational Center differently than he had with Officer Rochon:

Id. at 321-24.

After questioning Scott about the interview with Detective Horn, defense counsel moved on to inconsistencies in statements that Scott had made on the following day to an officer in Madison, Wisconsin.

Id. at 324-25. Defense counsel then probed inconsistencies in Scott's recounting of events during an interview with Jennifer Sutton of Safe Harbor, which had occurred the day after his discussions with the Madison police. Scott informed Sutton that no "blow jobs" had occurred, but that anal sex had occurred. Id. at 330-31. Other information provided to Sutton was new as well:

Id. at 331-32. Scott also admitted that he told Officer Martin about four instances of sexual assault, but told Sutton that "it was 50 incidents" and "whenever I was with him." Id. at 333-34 (internal quotation marks omitted).

In addition to exposing inconsistencies in Scott's statements, counsel for Mr. Sussman called numerous witnesses to testify to Scott's general lack of regard for the truth. See id. at 743 (James Pippitt, former employee of Mr. Sussman, testifying that "Scott was truthful only insofar as it would help him along"); id. at 1836 (Kim Varian, Scott's cousin, testifying that she did not think Scott was a "truthful person"); id. at 1846 (Scott's uncle testifying that Scott was a "schemer"); id. at 1893 (Barbara O'Connor, an acquaintance of Scott's mother, testifying that Scott's quality for truthfulness was "very poor"); id. at 1905 (Edward Fox, Scott's former neighbor, testifying that Scott "wasn't very truthful"); id. at 1912-13 (Diane Boles, Scott's former teacher, testifying that Scott was "manipulative and precocious" and "not always truthful"); id. at 1931 (Patrick Kinney, Scott's former principal, "recall[ing] situations where [he] felt that Scott struggled between fact and fiction"); id. at 1953 (Darren Bush, former employee of Mr. Sussman, testifying that Scott "doesn't know what truth is").

b.

Defense counsel not only attempted to cast doubt on Scott's veracity generally, but he attempted to show that Scott previously had levied false allegations of sexual assault to get attention and in retaliation. Specifically, defense counsel inquired whether Mr. Sussman was the first person whom Scott had accused of sexual assault. Counsel's attempts to elicit testimony on this subject drew immediate objections from the state's attorney. The objection initially was overruled.

Mr. Sussman's counsel then continued with his questioning:

Id. at 354-56. At this point, the prosecutor objected on grounds of physician-patient privilege. The jury was sent out of the room, and the court overruled the objection.

While the jury was out of the room, however, the prosecutor returned to the issue of prior untruthful allegations. For the first time, the prosecutor argued that, according to sections 971.31 and 972.11(2) of the Wisconsin Statutes, any testimony concerning prior false accusations of sexual assault was improper absent a pretrial determination of admissibility.4 The court agreed that the issue had "not been determined prior to trial, and so the Court is wrong. The Court will sustain his objection." Id. at 365. After further exchanges, the court stated, "I'm not sure how . . . we can hold a pretrial hearing during the middle of trial," and granted the motion to strike any reference to Scott's statements to Mitchell. Id. at 367. In light of the court's ruling, Mr. Sussman's counsel made the following offer of proof:

Id. at 370. In a Supplemental Offer of Proof filed with the trial court, Mr. Sussman provided the following information in support of his efforts to introduce prior false allegations of sexual assault: (1) that an investigation of possible abuse took place in 1998 based on Scott's reporting of inappropriate touching by his father; specifically, his father had "touch[ed] his private parts," commented that "it's growing and it'll be as big as mine," patted Scott's buttocks and "told him not to tell anyone," St. R.151 at 2 (internal quotation marks omitted);5 (2) that, if called to testify, Scott's father would state that, in 1998, "Scott had told a therapist that [his father] had molested him," that a restraining order was subsequently entered against Scott's father, that (after authorities determined the allegations were unsubstantiated) Scott went to live with his father, and that Scott later apologized to his father in 2001, stating that "he was only trying to get attention," id. (emphasis added); (3) that, if called to testify, Scott's cousin would state that, "[w]hile Scott was living with me[,] I confronted him about the accusations and threats he had made against his dad" and that "Scott admitted to me that he had made the accusation against his dad because he was angry with him" and because "[h]e felt abandoned by his dad," id. at 3 (emphasis added); and (4) that a report from Detective Bruce Frey recounted that Joann McDonald, Scott's mom, had stated that any earlier allegations that Scott had made were "merely. . . to get his father's attention and that he wanted his father more in his life," id. at 5 (emphasis added).

When the jury returned to the room, the court instructed: "You are to disregard and strike from the record any reference that was made with respect to a false claim of sexual assault repeated to a Bryce Mitchell. . . . You are not to use it in your deliberations." Tr. 374. Although counsel was precluded from asking about prior false allegations of sexual assault, counsel did cross-examine Scott about threats he had directed at his uncle. Scott admitted that, while staying with his uncle, Scott had threatened to call 911 to report abuse; however, Scott claimed that he made this threat because his uncle slapped him.

Counsel next explored Scott's discussions with his counselor, Bryce Mitchell:

Id. at 377-79.6

In between witnesses on the fourth day of trial and outside the presence of the jury, Mr. Sussman's counsel noted for the record that he had given the court a memorandum addressing the court's "prior ruling on whether we can go into a . . . prior false allegation. If Ms. McDonald [Scott's mom] testifies, that will be an issue during her testimony." Id. at 871-72. In that memorandum, Mr. Sussman responded to the State's objection that the false-accusation testimony was barred because counsel had failed to seek pretrial determination of admissibility. Mr. Sussman explained that the objection should be overruled because (1) "the accused's right to confrontation and to present evidence overrides the procedural requirement for a pretrial determination of the admissibility of the evidence [under the Wisconsin statute]"; (2) the testimony "is not properly subject to Wis. Stat. §§ 971.31(11) and 972.11(2)(b), as the evidence demonstrates a lack of prior sexual conduct"; (3) "failure on the part of defense counsel to seek a pretrial ruling on this issue does not prejudice the State by reason of surprise," but exclusion could prejudice the defendant and provide a ground for reversal of the conviction; and (4) "the evidence is probative and relevant and satisfies the prerequisites for admission." St. R.180 at 1-2. With respect to the first argument, Mr. Sussman's counsel cited State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325 (1990), and Davis v. Alaska, 415 U.S. 308, 320, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), for the proposition that "the State's interest in protecting a witness cannot require yielding of so vital a constitutional right as the effective cross-examination of an adverse witness." St. R.180 at 7-8 (internal quotation marks omitted). The supporting papers also anticipated, and responded to, arguments that there were no prior false accusations, see id. at 14-15 ("Scott has admitted the falsity of his claims to his father and to child protective services."), and that the false accusations were not relevant, see id. at 16 ("Evidence demonstrating the complainant's bias, credibility and truthfulness is basic to the prosecution and defense of criminal charges.").

Immediately prior to McDonald's testimony, Mr. Sussman's counsel stated his intent to ask about Scott's admission of a prior false allegation of sexual assault against his father, as well as Scott's failure to dispute his mother's statement to that effect. The prosecutor again noted that a pretrial motion was required. Furthermore, the prosecutor did not believe that the evidence was admissible under Wisconsin's rape shield law.7 In the prosecutor's view, "that's why we needed the hearing for you to have all of those facts, because it's at the time of hearing all those facts that you decide whether its going to be even probative at all on anything in this case." Tr. 978. The court then scheduled time the following morning to hear each side.

At the hearing, Mr. Sussman's counsel argued that, although the evidence was relevant on its face, its probative value had increased as a result of testimony Scott had given at trial. Specifically, it rebutted Scott's statement that he did not reveal the abuse by Mr. Sussman prior to 2002 because he thought it was "right." Counsel stated:

Id. at 1010-12. The court agreed that the evidence was relevant, but stated that it "ha[d] a problem with the method by which you may be able to go about doing it." Id. at 1018.

In response, the prosecutor argued that

Id. at 1023 (emphasis added). The prosecutor also believed that the State was prejudiced by Mr. Sussman's attempt to introduce these prior statements. The prosecutor contended that counsel's failure to bring the pretrial motion was a "deliberate and willful tactical decision, not withstanding [sic] their denial[,] to ambush the State with this evidence at trial." Id. at 1025. In the prosecutor's view, counsel's "mere invocation" of the defendant's right "to confront his accusers . . . d[id] not overcome the countervailing public interest of the integrity of the adversary system." Id. at 1026. The prosecution also maintained that, in fact, Scott had not levied a false accusation of sexual assault against his father, that the prior false allegation was too remote in time to be relevant, and, finally, that even if the evidence of false accusations were admissible, Mr. Sussman should not be allowed to use extrinsic evidence to prove those allegations.

The trial court then framed the issue in terms of Mr. Sussman's right to cross-examine Scott on his statement that the sexual contact between him and Mr. Sussman "was right." The court stated:

Id. at 1047-48. At this point, the prosecutor interrupted to get further clarification of the court's ruling:

Id. at 1048-55.

In sum, the court did not revisit its initial ruling barring the prior false allegation evidence based on counsel's failure to raise the issue in a pretrial motion. Nevertheless, the court did allow Mr. Sussman's counsel, through cross-examination, to inquire whether Scott "previously [had] reported what he thought was an unlawful touching," id. at 1052, in order to rebut Scott's testimony that he did not report his sexual interaction with Mr. Sussman because Scott thought it "was right."

Mr. Sussman's counsel interpreted this ruling as not only precluding him from calling other witnesses, such as Scott's father or counselor, to establish prior false accusations of sexual abuse, but also as precluding him from calling Scott's counselor for any other purpose. As a result, defense counsel never sought to admit, and the jury never read, any of Mitchell's treatment notes. One treatment note from November 1999 contained the following statement: "I reported that cl [Scott] firmly denies any inappropriate contact w[ith] Mary or Gordy [Sussman]." R.206, Ex. 1.11

Near the end of trial, counsel for Mr. Sussman offered the testimony of Suzette Cyr, a friend of McDonald's with whom McDonald also had had a romantic relationship. Cyr testified that she and Scott were friends and that Scott had visited her at her home in Dallas during his Christmas vacation of 2003 and during summer vacation of 2004. Cyr testified that Scott had told her that "[i]t never happened. . . . This thing with Gordy. He never did it." Tr. 1861. Cyr admitted that, subsequent to this conversation, she had written McDonald threatening to expose Scott's statement unless McDonald repaid a loan that Cyr had made to her. On cross-examination, she also admitted to writing other threatening letters to individuals with whom she had been romantically involved.

An acquaintance of McDonald, Barbara O'Connor, echoed the possibility that both Scott and McDonald may have had a financial motive in pursuing criminal action against Mr. Sussman. O'Connor testified that McDonald had anticipated filing a civil suit against Mr. Sussman and "get some money out of it." Id. at 1892. McDonald said she would use the money to "send[] Scott to college and some other things." Id. According to O'Connor, when Scott heard this, "[his] eyes light up, and he kind of had a smile . . . on his face" and said that "he could probably get a pool like Suzette had." Id. at 1892-93.

After a ten-day trial, a jury convicted Mr. Sussman on the child pornography and child sexual assault charges. He was acquitted on the charges of exposing Scott to harmful material.

B. State and District Court Post-trial Proceedings

1.

On July 14, 2006, Mr. Sussman filed a petition for state postconviction relief pursuant to section 974.02 of the Wisconsin Statutes. See St. R.206. He alleged that his trial counsel had been constitutionally ineffective. Although the petition identified several grounds of ineffectiveness, only two are pertinent to the issues presently before us: First, Mr. Sussman's counsel had failed to file a pretrial motion under section 971.31(11) of the Wisconsin Statutes that would have allowed Mr. Sussman to introduce evidence of Scott's prior false reports of sexual abuse. Specifically, Mr. Sussman argued that, "[i]f filed, that motion would have opened the door for Mr. Sussman to inform the jury that, on at least three prior occasions, [Scott] had falsely reported sexual abuse." Id. at 4. Second, counsel had failed to introduce the note made on November 24, 1999, by Mitchell that indicated that Scott had denied any inappropriate conduct by Mr. Sussman.

On November 30, 2006, the Circuit Court held a hearing to consider Mr. Sussman's petition. During the hearing, Mr. Sussman's counsel testified to his understanding of the evidence that Scott had made false allegations of sexual abuse against his father. Counsel explained that it was his "belief prior to trial . . . that [Scott] had made the allegation against his father in the context of the custody dispute, had subsequently recanted that allegation, and then subsequent to that, revived it when meeting with Bryce Mitchell." Tr. of Hr'g on Postconviction Motion at 29. Specifically, Mr. Sussman's trial counsel testified that he had a signed statement from Scott's father, in which Scott's father attested: "In December of 1998, Scott threatened to call the police if I did not let him ride his bike in the street. He said he would tell them that I had sexually assaulted him. In October of 1998, there was a civil restraining order against me; Scott had told the therapist that I had molested him." Id. at 76 (quotation marks omitted). After child protective authorities determined that the claim was unsubstantiated, see St. R.151 at 15, Scott repeated this claim of inappropriate touching to Mitchell in October 1999, see St. R.206, Ex. 2 at 25, and again to Mitchell in March 2000, see St. R.206, Ex. 4. Mr. Sussman's trial counsel also testified that other evidence of a false allegation included an interview with Detective Frey. According to trial counsel, "Scott['s] [last name deleted] mother . . . told Detective Frey that on one occasion her son had made an allegation against his father for some type of sexual abuse, but had later indicated that he had lied to get his dad's attention and nothing really happened." Tr. of Hr'g on Postconviction Motion at 77.

Trial counsel explained that he would have used the false accusations both to impeach Scott's credibility and to rebut Scott's stated reason for not reporting the abuse by Mr. Sussman, namely that Scott thought the sexual contact was "right." See id. at 31. Trial counsel explained that his strategy was thwarted when the trial court sustained the prosecutor's objection to the evidence on the ground that trial counsel had failed to bring a pretrial motion. He further testified that the failure to do so was not a part of his strategy, but that "[i]t was an omission. I forgot." Id. at 32.

In his testimony, Mr. Sussman's trial counsel also addressed the potential impact of Mitchell's note. He explained that his strategy would have been to use the therapist's note to impeach Scott's credibility. However, because he misunderstood the breadth of the trial court's ruling with respect to Scott's psychiatric records, he failed to offer this evidence.

On March 8, 2007, the Circuit Court denied the petition. With respect to counsel's failure to file a pretrial motion to determine the admissibility of Scott's prior false accusations against his father, the court stated, "[w]hether properly phrased as a failure to show deficient performance or failure to show prejudice, it appears quite clear that trial counsel's failure to file a motion under Wis. Stat. § 971.31(11) can only constitute ineffective assistance if the motion itself would have had merit." St. R.224 at 6 (citing State v. Swinson, 261 Wis.2d 633, 660 N.W.2d 12, 26 (Wis.Ct. App.2003)). The court further explained that to have merit, the motion would have had to satisfy three requirements: (1) the proffered evidence fits within section 972.11(2)(b)3 of the Wisconsin Statutes;12 (2) the evidence is material to a fact at issue in the case; and (3) the evidence is of sufficient probative value to outweigh its inflammatory and prejudicial nature (the "DeSantis factors"). Id. at 6-7 (citing State v. DeSantis, 155 Wis.2d 774, 456 N.W.2d 600, 605 (1990)).13

The court concluded that the motion would not have had merit because the false-accusation evidence failed to satisfy the first and third requirements. The evidence failed the first requirement because it did not describe a sexual assault: It described merely how Scott's father had touched Scott's intimate parts, but not that his father had touched Scott for purposes of sexual gratification or sexual degradation. The evidence failed the third requirement because its probative value was significantly outweighed by its prejudicial effect; the false accusations were "of a rather ambiguous nature, [were] temporally remote from the allegations against the defendant, especially considering the youth of the complaining witness, and contained vastly different surrounding circumstances." Id. at 8. On the other hand, the court continued, "[t]he potential for improper use and confusion by the jury, however, would have been unacceptably high. Extensive testimony regarding this alleged report of sexual abuse would likely have focused undue attention on the complaining witness' behavior in a situation quite unlike the one actually being tried." Id. Moreover, concluded the court, "even were this evidence admissible, . . . the Court is convinced that trial counsel's failure to present this evidence was not prejudicial. Significant evidence was actually presented regarding the complaining witness' propensity to lie. A temporally remote addition to this evidence would not create a reasonable probability of a different outcome." Id.

Turning to counsel's failure to offer the therapist's note, the court assumed that counsel's assistance had been deficient, but the court concluded that it was not constitutionally prejudicial for two reasons. First, trial counsel questioned Scott about his denial to the therapist, and Scott responded that, if he had made such a denial, he was lying. Thus, according to the court, the note would have added little else to Mr. Sussman's defense. Second, Scott's credibility was thoroughly examined in other ways, and the therapist's note would have been a minor addition to the impeachment of Scott.

Mr. Sussman appealed to the Court of Appeals of Wisconsin. He asserted that his Sixth Amendment right to effective assistance of counsel had been violated by his trial counsel's two deficiencies. See R.5, Ex. D at 20 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). With respect to the first deficiency—the failure to file the pretrial motion to determine the admissibility of the prior false claims evidence—Mr. Sussman disputed the circuit court's rationale that the motion would have been meritless. Id. at 23 (stating that "[i]f, at trial, the court had denied the timely motion, that ruling would have been grounds for reversal in this appeal" because "the law permitted Mr. Sussman to introduce Scott's prior false accusation against his father"). Mr. Sussman contended that the evidence met the three DeSantis requirements because (1) Scott admitted at trial that he had previously accused his father of "sexual assault," which could have been confirmed by several witnesses, (2) the evidence was material because the court and prosecutor admitted that it was "important" and "crucial" and (3) the evidence had probative value. Id. at 24-28 (internal quotation marks omitted). To support his claim that the evidence had probative value, Mr. Sussman invited the court's attention to Redmond v. Kingston, 240 F.3d 590 (7th Cir.2001). In Redmond, the Wisconsin courts had concluded that evidence of a prior false accusation was "inadmissible because the false charge did not have sufficient probative value to outweigh its inflammatory and prejudicial nature." R.5, Ex. D at 26. Mr. Sussman explained:

Id. (emphasis added).14

Mr. Sussman argued that the Strickland prejudice prong was satisfied with respect to both of counsel's deficiencies because "the missing [evidence] exposed Scott's willingness and motivation to lie about the ultimate fact" on which "the jury was being asked to pass judgment" and because the evidence "would [have] influence[d] the fact finder's assessment of the credibility of an important witness." Id. at 29-30. He argued that because Scott's credibility was crucial to the prosecution's case—the State lacked physical evidence or eyewitness testimony—"[t]here is a reasonable probability [that] had the missing [evidence] been presented the result would have been different." Id. at 31.15

For its part, the State maintained that Mr. Sussman's counsel had brought out "ample proof" that Scott had accused his father of sexual assault and that these accusations were false. R.5, Ex. E at 19. Furthermore, the State argued that, "had the motion been filed, it would have failed." Id. The State submitted that the trial court had not erred in its ruling on the postconviction motion that

Id. at 22 (emphasis in original) (internal citation omitted).

The State also argued that defense counsel's failure to introduce the note from Bryce Mitchell was not deficient performance: "Whether or not [defense counsel] should have, or even could have, gotten the cryptic note written by Bryce Mitchell in November of 1999 into evidence . . ., [defense counsel]'s overall performance on this point remained competent." Id. at 13. Turning to prejudice, the State argued that the evidence only would have been cumulative "to that introduced by [defense counsel] which established almost conclusively that Scott was seeing therapists and teachers for the duration of his relationship with Sussman but complained to no one about sexual abuse." Id. at 14-15.

The Court of Appeals of Wisconsin affirmed. On both alleged errors by trial defense counsel, the court bypassed the deficiency prong of the ineffective assistance of counsel claim and held that there was no prejudice. With respect to Mr. Sussman's claim of ineffective assistance of counsel based on the prior false allegation of sexual assault, the court stated

R.5, Ex. B at 4 (emphasis in original). With respect to Mr. Sussman's claim of ineffective assistance based on his attorney's failure to introduce Mitchell's note, the court stated:

Id. at 2-3.

Mr. Sussman petitioned for review to the Supreme Court of Wisconsin. He contended that the state court of appeals had analyzed unreasonably the importance of counsel's deficiencies. With respect to the prior false-accusation evidence, Mr. Sussman argued that the appellate court's ruling was "an unreasonable application of Wisconsin law (State v. DeSantis, 155 Wis.2d 774, 456 N.W.2d 600 (1990)), an unreasonable application of the Supreme Court's confrontation doctrine, and an unreasonable determination of the facts to arrive at a decision contrary to established state and federal ineffective assistance of counsel and confrontation clause jurisprudence." R.5, Ex. G at 11. Mr. Sussman emphasized that Scott admitted to falsely accusing his father of "sexual assault" and "inappropriately touched him while taking a shower." Id. at 11-12 (internal quotation marks omitted). He analogized his case again to Redmond and also to White v. Coplan, 399 F.3d 18, 25 (1st Cir.2005).16 He believed that the evidence would have been probative of Scott's motive to falsely accuse his father figures when they withdrew from him. With respect to the therapist's note, he submitted that it was necessary because Scott had testified that he could not remember ever having made the denial to the therapist and because Cyr's testimony required corroboration. Mr. Sussman's brief concluded by suggesting that the court of appeals's "unfounded judgments result in a decision that is contrary to established state and federal ineffective assistance of counsel jurisprudence and also at odds with the Supreme Court's confrontation doctrine." Id. at 15.

The Wisconsin Supreme Court denied the petition for review.

2.

Having exhausted his remedies in the state courts, Mr. Sussman brought this habeas petition in the district court. He asserted that his trial counsel had been ineffective for the two reasons identified in the state-court proceedings. According to Mr. Sussman, the decision of the Court of Appeals of Wisconsin was an unreasonable application of Strickland's ineffective assistance of counsel principles because the court applied an overly strict prejudice standard and reached unreasonable factual conclusions. Mr. Sussman contended that the therapist's note was essential to impeach effectively Scott and to corroborate other witnesses' testimony about Scott's denial. Turning to the prior false-accusation evidence, Mr. Sussman argued that, based on DeSantis, Redmond and White, see R.12 at 16-17, this was important impeachment evidence because it showed Scott's "motive . . . to vent his anger and to get his father's attention," because the false accusation was repeated "during the same time period covered by the charging instrument," and because "the admitted lie and the accusations against Mr. Sussman similarly accused the only two father figures in Scott's life of inappropriately touching his genitals," R.1 at 16. Again, much of Mr. Sussman's legal argument focused on Redmond:

R.12 at 16-17 (emphasis added).

A magistrate judge recommended denying relief, and the district court agreed. Addressing the prior false accusations, the district court held that it had "no authority to review the correctness of the appellate court's decision that the trial court had interpreted Wis. Stat. § 972.11(2) properly"; however, it did have authority to determine "whether the exclusion of the evidence of the prior allegation of sexual abuse prejudiced petitioner." R.19 at 4. The court concluded that Mr. Sussman had not been prejudiced because he was not "prevented entirely from bringing the victim's prior false accusation to the jury's attention. Counsel was allowed to question Scott's mother about the matter and to put in extensive evidence from other witnesses about Scott's propensity to lie." Id. at 5. Concerning the failure to offer Mitchell's note, the district court held that, contrary to Mr. Sussman's assertions, the state appellate court's conclusion that there was no reasonable probability of a different outcome was not an unreasonable one.

The district court nevertheless granted Mr. Sussman a certificate of appealability with respect to these ineffective assistance of counsel issues.

II

DISCUSSION

A. Applicable Standards

A state prisoner's habeas claims are governed by the deferential standards set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254:

Williams v. Bartow, 481 F.3d 492, 498 (7th Cir.2007).

We evaluate the substance of Mr. Sussman's ineffective assistance of counsel claims according to the familiar standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Allen v. Chandler, 555 F.3d 596, 600 (7th Cir.2009) (parallel citations omitted). Because "[a]n ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial," the Strickland standard "must be applied with scrupulous care, lest `intrusive post-trial inquiry' threaten the integrity of the very adversary process the right to counsel is meant to serve." Harrington, v. Richter, ___ U.S. ___, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011) (quoting Strickland, 466 U.S. at 689-90, 104 S.Ct. 2052). "To satisfy Strickland's deficiency component, the convicted defendant must show that counsel's performance fell below an objective standard of reasonableness. This means identifying acts or omissions of counsel that could not be the result of professional judgment." United States ex rel. Thomas v. O'Leary, 856 F.2d 1011, 1015 (7th Cir.1988) (internal citations omitted). "The question is whether an attorney's representation amounted to incompetence under `prevailing professional norms,' not whether it deviated from best practices or most common custom." Harrington, 131 S.Ct. at 788 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Our review of counsel's performance is "highly deferential," and the defendant is required to "overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (internal quotation marks and citations omitted).

As the Supreme Court recently emphasized in Harrington, 131 S.Ct. at 788, when a habeas petitioner raises an ineffective assistance claim, "[t]he bar for establishing that a state court's application of the Strickland standard was `unreasonable' is a high one, and only a clear error in applying Strickland will support a writ of habeas corpus." Allen, 555 F.3d at 600. "This principle applies because `Strickland builds in an element of deference to counsel's choices in conducting the litigation [and] § 2254(d)(1) adds a layer of respect for a state court's application of the legal standard.'" Ouska v. Cahill-Masching, 246 F.3d 1036, 1053 (7th Cir.2001) (alteration in original) (quoting Holman v. Gilmore, 126 F.3d 876, 881 (7th Cir.1997)). "When § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington, 131 S.Ct. at 788.

However, if a state court does not reach either the issue of performance or prejudice on the merits, then "federal review of this issue `is not circumscribed by a state court conclusion,' and our review is de novo." Toliver v. McCaughtry, 539 F.3d 766, 775 (7th Cir.2008) (quoting Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)).

B. Deficient Performance

Mr. Sussman claims that his trial counsel's failures fell below an objective standard of reasonableness. As noted previously, the state appellate court did not address the merits of Mr. Sussman's allegations of deficient performance, but proceeded directly to the prejudice inquiry.17 Consequently, we review de novo Mr. Sussman's claim of deficient performance. See Toliver, 539 F.3d at 775.

Mr. Sussman argues that his counsel's failure to bring a pretrial motion concerning the prior false allegations of sexual assault and to introduce Mitchell's note were not the result of a reasoned approach to trial. Instead, counsel stated that he simply forgot that Wisconsin law requires that there be a pretrial determination of the admissibility of prior false allegations of sexual abuse. Additionally, Mr. Sussman's counsel testified that his failure to introduce Mitchell's note was the result of confusion over the trial court's evidentiary ruling. Because these actions cannot be considered a part of any sound trial strategy, Mr. Sussman maintains, his counsel's performance was constitutionally ineffective.

The State does not argue that counsel's actions reflect a sound trial strategy. Instead, it merely reiterates that counsel's actions are entitled to a presumption that they were made in the exercise of reasonable professional judgment. This statement is true as a general proposition of law; nevertheless, it has little bearing on this case. The testimony of Mr. Sussman's counsel at the hearing on the postconviction motion establishes that his counsel's actions were the result of oversight and confusion.

The State further emphasizes that Mr. Sussman is not "constitutionally entitled to error-free representation." Respondent's Br. 18. We agree. We often have stated that "[i]t is essential to evaluate the entire course of the defense, because the question is not whether the lawyer's work was error-free, or the best possible approach, or even an average one, but whether the defendant had the `counsel' of which the sixth amendment speaks." Williams v. Lemmon, 557 F.3d 534, 538 (7th Cir.2009). Nevertheless, we must keep in mind that the Supreme Court "has allowed for the possibility that a single error may suffice `if that error is sufficiently egregious and prejudicial.'" Id. (quoting Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). Consideration of this issue necessarily overlaps with our consideration of the prejudice prong of the Strickland analysis, and, therefore, we now turn to the question of whether Mr. Sussman was prejudiced by counsel's errors.

C. Prejudice

1. False Allegation Claims

a. Application of AEDPA Deference

Turning first to the prior false allegations of sexual assault, Mr. Sussman takes the view that we should not apply the deferential standard set forth in 28 U.S.C. § 2254(d) because the state court did not resolve on the merits the question of whether Mr. Sussman was prejudiced by his counsel's actions. Mr. Sussman's own submission, however, belies his assertion. He states in his brief that, "[a]s to the false accusation, the state court held Sussman did not meet the prejudice test because no prejudice could accrue from defense counsel's failure to file a pre-trial motion that would have been denied." Petitioner's Br. 16. At bottom, Mr. Sussman's argument is not that the state court failed to resolve the issue of prejudice, but that, because the state appellate court incorrectly concluded that the motion would have been unsuccessful, the court never weighed the potential impact of the omitted evidence on the jury. Resolving a claim on an improper or faulty basis is not the same as failing to adjudicate the claim on the merits. See Malinowski v. Smith, 509 F.3d 328, 332-34 (7th Cir.2007). Here, there is no question that, as Mr. Sussman tacitly acknowledges, the state court held that Mr. Sussman had not been prejudiced by his counsel's error. Therefore, we must evaluate this determination of the state appellate court under the deferential AEDPA standard. See Harrington, 131 S.Ct. at 787-88.

b. Reviewability of Claims

The state appellate court determined that Mr. Sussman was not prejudiced by his counsel's failure because, based on its balancing of the DeSantis factors,18 it would have sustained the denial of a timely motion to introduce the prior false allegations of sexual assault. Mr. Sussman maintains that the state court both misunderstood the nature of the prior false accusations as well as underestimated their probative value.

DeSantis makes it clear that Wisconsin's rape shield law is an effort by the Wisconsin legislature to balance the need to protect complainants' dignity with the "defendant's constitutional rights to a fair opportunity to defend and to a jury trial." 456 N.W.2d at 607. Indeed, considerations critical to a Wisconsin state court's determination of admissibility under Wisconsin Statutes sections 972.11(2)(b)3 and 971.31(11) are also important to a federal court's Confrontation Clause analysis. See infra pp. 352-55. To the extent that the state court weighed the factors embodied in the state statute, it engaged in a purely state-based process mandated by its legislature. "[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Consequently, we cannot engage in the "reweighing" of the DeSantis factors urged by Mr. Sussman.

However, as Mr. Sussman argues and as DeSantis requires, the state court also must take into consideration the principles animating the federal Confrontation Clause in its final determination whether to admit evidence.19 According to Mr. Sussman, the state court's ruling independently violated his rights to confront witnesses against him. When placed within the overarching context of his ineffective assistance claim, therefore, Mr. Sussman maintains that he did suffer prejudice as a result of his counsel's failures because, although not meritorious on state evidentiary grounds, the motion ultimately would have been granted because of the importance of the federal rights involved. As we shall explain in greater detail in the paragraphs that follow, this inquiry is a proper subject for habeas review.

c. Federal Claims

"Regardless of how a state court applies state evidence rules, a federal habeas court has an independent duty to determine whether that application violates the Constitution." Jones v. Cain, 600 F.3d 527, 536 (5th Cir.2010). Mr. Sussman relies heavily on our decision in Redmond, to support his claim that the state court's evidentiary rulings adversely impacted his rights under the Confrontation Clause. In Redmond, we considered whether the defendant's rights under the Confrontation Clause were implicated by the Wisconsin state court's exclusion of evidence related to prior false allegations of sexual assault.20 We found it unnecessary in Redmond to elaborate in great detail on the nature of those rights. However, as our references in Redmond suggest, Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), provides an appropriate starting point for such a discussion.

(1)

In Davis, the Court reiterated that "[c]onfrontation means more than being allowed to confront the witness physically. `Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.'" Davis, 415 U.S. at 315, 94 S.Ct. 1105 (alteration in original) (quoting Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965)). The Court observed that "[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Id. at 316, 94 S.Ct. 1105. The Court noted that a witness's credibility could be called into question in two ways. First, the defendant could launch a "general attack on the credibility of the witness," for instance, by "introduc[ing] evidence of a prior criminal conviction of that witness." Id. "By so doing," the Court explained, "the cross-examiner intends to afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony." Id. The Court contrasted a "general attack" with

Id. at 316-17, 94 S.Ct. 1105 (emphasis added) (parallel citations omitted). Thus, exposing a witness's reasons for fabrication in a specific case is at the heart of the Confrontation Clause.

Despite this weighty interest, a defendant's right to cross-examine is not unlimited. "[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on. . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). "In a criminal case, restrictions on the defendant's rights `to confront adverse witnesses and to present evidence may not be arbitrary or disproportionate to the purposes they are designed to serve.'" White, 399 F.3d at 24 (quoting Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (internal quotation marks omitted)).

White, 399 F.3d at 24 (parallel citations omitted). Thus, we have upheld a court's limitation of cross-examination when "the questions were designed not to elicit information regarding the witnesses' possible bias, but rather to mine for further details concerning [a witness], whose importance to the case already had been deemed minimal." United States v. Valles, 41 F.3d 355, 359 (7th Cir.1994). Similarly, we determined that there had been no Confrontation Clause violation when a court limited cross-examination that "possibly could have impacted on [the witness's] general credibility but would not have exposed a bias in favor of the government." United States v. Saunders, 166 F.3d 907, 919 (7th Cir.1999). More closely related to the present situation, we have upheld a court's decision not to allow cross-examination of a child witness about prior, allegedly false, accusations of sexual assault when the state trial court explicitly found that the complainant "was not clever enough to concoct false allegations of sexual abuse." Cookson v. Schwartz, 556 F.3d 647, 655 (7th Cir.2009). That is, on habeas review, we would not disturb a state trial court's factual finding that a witness was incapable of giving effect to the type of motivation that the defense wished to expose.

By contrast, a trial court's limitation on cross-examination aimed at exposing a witness's motive or bias reaches the core of Confrontation Clause concerns. To justify limiting a defendant's right to confront his accusers on issues of motive and bias, the countervailing policy interest must be concrete and articulable, not based on surmise or speculation. See Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988).21 Furthermore a defendant has the right to explore fully each potential motive or source of bias. In United States v. Martin, 618 F.3d 705, 728 (7th Cir.2010), for example, the defendant alleged that his Confrontation Clause rights had been violated when he was not permitted to cross-examine a witness concerning any link "between [the witness's] involvement in [a] pending state murder investigation and his testimony in the federal action." We agreed that "[t]he timing, nature and status of the [state] murder investigation was probative of bias[,] and the defense had the right to explore it fully and allow the jury to draw its own conclusions." Id. at 730. Additionally, we determined that the fact

Id. (internal citations omitted).22

(2)

With this background in mind, we return to our evaluation of the Confrontation Clause claims set forth in Redmond. In that case, the petitioner, Redmond, had been a counselor at an institution for minors suffering from drug and alcohol addiction. He was convicted of statutory rape of a fifteen-year-old resident, Heather; it was alleged that he had given her cocaine in return for sexual favors. At trial, the principal evidence was the testimony of Heather and of another resident, who "merely repeated what Heather had told her had happened." Redmond, 240 F.3d at 591. The evidence that the defense wished to introduce was based on the following facts:

Id. The state court had held that the evidence was inadmissible because, under section 972.11(2)(b)3, "Heather's false charge did not have `sufficient probative value to outweigh its inflammatory and prejudicial nature.'" Id. We, however, determined that Redmond had made out a prima facie case of a constitutional violation for several reasons. First, the state court had treated the prior false allegation of sexual assault as a general attack on Heather's credibility. This was incorrect; we explained:

Id. at 591-92 (internal citations omitted). Additionally, we believed that the state court had given excessive weight to the possibility of jury confusion:

Id. at 592.

(3)

We have the same concerns here as we did in Redmond. In seeking to examine Scott on the false allegations against his father, Mr. Sussman's counsel was not attempting simply to expose another incident of Scott's lack of truthfulness; instead, he was attempting to "reveal[] possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand." Davis, 415 U.S. at 316, 94 S.Ct. 1105. The offer of proof established that Scott made false allegations of sexual abuse against his father at a time when he had no contact with his father and in an attempt to get his father's attention. See St. R.151 at 18, 22. Similarly, Scott's allegations against Mr. Sussman came shortly after Scott moved back to Indiana and was seeing less of Mr. Sussman. The jury reasonably could have concluded that Scott was prone to use allegations of sexual abuse against father figures as a means either of gaining their attention or as a means of punishing them for abandoning him. See Redmond, 240 F.3d at 591-92 ("[T]he fact that the girl had led her mother, a nurse[] and the police on a wild goose chase for a rapist merely to get her mother's attention supplied a powerful reason for disbelieving her testimony eleven months later about having sex with another man, by showing that she had a motive for what would otherwise be an unusual fabrication."). In short, "[w]e are dealing here with something far more potent than `general credibility' evidence which, under confrontation clause standards, may have a lower status." White, 399 F.3d at 26. We are addressing evidence that exposes a motive to fabricate a specific kind of lie under a specific set of circumstances and, therefore, directly implicates Mr. Sussman's rights under the Confrontation Clause.

Furthermore, the State's interest in limiting the testimony appears exaggerated. As explained by the Supreme Court of Wisconsin in DeSantis, the State's rape shield law was designed "to respond to claims that rules of evidence served to humiliate and degrade complainants by allowing the defendant to put the complainant on trial and served to deter complainants from pressing charges." 456 N.W.2d at 607. However, these worthy concerns cannot be the only factors for judicial consideration when there is a false allegation of sexual assault.

The State maintains that the trial court's refusal to admit evidence of false allegations also was justified because the evidence could have confused the jury. The State maintains that there was insufficient evidence that Scott's allegations were false. It argues that it is important that Scott did not take the initiative in making allegations against his father, but merely responded to questions about inappropriate touching by child protective services. Scott, the State claims, never accused his father of any actual wrongdoing. Consequently, the State believes that, had Mr. Sussman been allowed to question Scott about his false allegations, the jury's attention would have been diverted to a peripheral matter.

We believe the State's attempt to trivialize the importance of Scott's allegations against his father evinces a fundamental misunderstanding of the importance of the guarantees of the Confrontation Clause in the truth-finding process of a criminal trial. In any event, the State's argument overlooks the fact that Scott did not make the false allegation only once to the representative from child protective services. Scott repeated the allegation to his therapist on two occasions after child protective services had determined that the allegations were unsubstantiated. See St. R.206, Ex. 2 at 25; id., Ex. 4.

The State also insists that, if the evidence concerning the prior false accusations had been admitted, the focus of the trial would have shifted to the interaction between Scott and his father as opposed to the interaction between Scott and Mr. Sussman. As in Redmond, we believe that these fears largely are unfounded. It is Scott's motive in bringing and repeating the allegations against his father that makes those allegations relevant, not the specific underlying actions that prompted the allegations. Allowing Mr. Sussman to probe Scott's motive would not necessitate lengthy discussion of what actually had occurred between Scott and his father.

Based on our analysis in Redmond23 and the cases on which Redmond relies—Davis, Van Arsdall and Olden—we believe that, if Mr. Sussman's counsel had filed a timely pretrial motion with respect to the accusations, and, furthermore, if the court had prohibited Mr. Sussman from introducing that evidence, the state court's ruling would have run afoul of Mr. Sussman's rights under the Confrontation Clause. Therefore, we must conclude that, by construing the task of evaluating the admissibility of Scott's accusation against his father without any reference, much less a plenary reference, to the principles of the Confrontation Clause, the state courts applied unreasonably the applicable federal constitutional guarantees as construed by the Supreme Court of the United States.24

Nevertheless, even if the state court committed this error, we still are faced with the question, for purposes of ineffective assistance of counsel, whether counsel's failure to introduce this evidence prejudiced Mr. Sussman. In assessing whether there is a reasonable probability that the result of the proceeding would have been different, we "must consider the evidence in its totality." Wright v. Gramley, 125 F.3d 1038, 1042 (7th Cir.1997). "Whether such a reasonable probability exists depends, of course, on the nature and strength of the government's case against" the defendant, and "the nature of his attorney's failures." United States v. Morrison, 946 F.2d 484, 500 (7th Cir.1991); see also Wright, 125 F.3d at 1042 (stating that a verdict supported weakly by the record "is more likely to have been affected by errors than one with overwhelming record support" (quotation marks and citations omitted)).

The State urges that, even if this evidence had been admitted, it would have been cumulative to Scott's admission on cross-examination that he had accused his father of sexual assault. However, there is an obvious difference between an accusation and a false accusation. Mr. Sussman never was allowed to establish that Scott's prior accusation was, in fact, false; nor was he allowed to explore Scott's motives for falsely accusing his father and to draw parallels between Scott's allegations against his father and Scott's allegations against Mr. Sussman.

Additionally, the State maintains that, even if Mr. Sussman was prohibited from introducing false-accusation evidence, he

Respondent's Br. 45. The State, we believe, overestimates the value of some of this evidence. For instance, when Mr. Sussman's counsel attempted to explore the fact that Scott had repeated the allegations against his father to Bryce Mitchell, the court sustained the State attorney's objection and later instructed the jury: "You are to disregard and strike from the record any reference that was made with respect to a false claim of sexual assault repeated to a Bryce Mitchell." Tr. 374.25

We agree that this evidence is probative of Scott's truthfulness and, indeed, that Mr. Sussman's counsel was successful in generally discrediting Scott as a witness. However, this evidence does not take the place of the false-accusation evidence that Mr. Sussman sought to introduce. None of the above evidence demonstrates that Scott lies specifically about sexual abuse when he feels abandoned by father figures. See Redmond, 240 F.3d at 593 (distinguishing evidence of motive from general attacks on credibility).

Also of significant importance to our conclusion is the centrality of Scott's testimony to the State's case. See Olden, 488 U.S. at 233, 109 S.Ct. 480 (considering strength of State's case in evaluating whether Confrontation Clause violation was harmless). Scott's testimony was the only evidence that Mr. Sussman committed the heinous acts of which he was accused. Even without the false-accusation testimony, the jury acquitted Mr. Sussman on the charges related to exhibiting dangerous materials; it appears, therefore, that the jury harbored doubts as to some aspects of Scott's testimony. See id. (noting that the jury's verdict could not be "squared with the State's theory of the alleged crime"). We believe that this crucial evidence, which would have given the jury a motive for Scott's allegations against Mr. Sussman, very well may have tipped the balance in favor of Mr. Sussman.

2. Bryce Mitchell's Note

a.

Mr. Sussman also claims that he suffered prejudice as a result of his attorney's failure to offer into evidence Mitchell's note. Mr. Sussman first argues that we should not defer to the state court's determination on the issue of prejudice because it applied the incorrect substantive standard. Mr. Sussman maintains that he was required only to establish a "reasonable probability" that, but for counsel's errors, the result would have been different, Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The state appellate court, however, required him to meet a higher standard and to establish that the actual "result of the proceeding would have been different." R.5, Ex. B at 3.

Mr. Sussman correctly cites the Strickland standard and correctly notes that the state appellate court omitted the "reasonable probability" language from its concluding sentence. However, we do not believe that the omission of this language renders the decision "contrary to" Strickland. The state appellate court previously had cited State v. Johnson, 153 Wis.2d 121, 449 N.W.2d 845 (1990), as providing the operative ineffective assistance standard, and Johnson incorporates the ineffective assistance standard set forth in Strickland. See Johnson, 449 N.W.2d at 847-48. Furthermore, it is clear from the court's analysis that it did not believe that the note had a reasonable probability of altering the jury's verdict. The court perceived that the "therapist's note would have added little to the information received by the jury" and that "the note would have been insignificant in impeaching the victim's credibility." R.5, Ex. B at 3. Consequently, we do not believe the court's use of a "short-hand" recitation of the Strickland test suggests that it employed the incorrect standard. See Woods v. Schwartz, 589 F.3d 368, 378 n. 3 (7th Cir.2009). We therefore evaluate the state appellate court decision under the deferential standard set forth in AEDPA.

b.

The state appellate court concluded that Mitchell's note

R.5, Ex. B at 3. With all due respect, we cannot conclude that Mitchell's note would have been merely cumulative of Cyr's testimony. Cyr did testify that Scott had stated that his allegations against Mr. Sussman were untrue; however, Cyr was thoroughly discredited by the State. The State established that Cyr had become angry with McDonald because McDonald allegedly had refused to pay on a loan from Cyr. As a result, Cyr threatened McDonald with legal action; more importantly, she also threatened McDonald that, if McDonald did not pay, Cyr "would come forward and tell what had happened that day with Scotty, what he had said." Tr. 1870. By contrast, Mitchell was an objective third party, whom Scott had grown to trust with the most personal aspects of his life. Unlike Cyr, Mitchell had no motive at all to record falsely what Scott had told her. We believe that the jury would have given far more credence to Mitchell's note than it did to Cyr's testimony.

Moreover, in assessing the prejudice resulting from counsel's failure, we must consider the overall strength or weakness of the State's case against Mr. Sussman. As we have discussed previously, there were no witnesses to, and no physical evidence substantiating, the assaults. The State's case rose or fell on the testimony of Scott. Given that the jury acquitted Mr. Sussman on the harmful-material charges, there were aspects of Scott's testimony that the jury members must have doubted. It is difficult to say that Mitchell's note would not have had an impact on the jury's deliberations.

Despite our estimation of the impact of this error, our obligation to defer to "reasonable" state-court determinations may well have required us to refrain from granting the writ. In order to grant relief based on this error alone, we would have to conclude that the appellate court's contrary determination was "unreasonable," i.e., "lying well outside the boundaries of permissible differences of opinion." Hardaway v. Young, 302 F.3d 757, 762 (7th Cir.2002). Here, however, we are not faced with a single error by counsel and, therefore, must consider the cumulative impact of this error when combined with counsel's failure to secure a pretrial ruling on the evidence related to the prior false accusations of sexual abuse. See Goodman v. Bertrand, 467 F.3d 1022, 1030 (7th Cir.2006) (stating that "we must assess the totality of the omitted evidence under Strickland rather than the individual errors" (internal quotation marks and citation omitted)). If the jury had considered the false-accusation evidence in conjunction with Mitchell's note, there is more than a reasonable probability that the result would have been different. Indeed, we do not believe that the state court, had it considered the force of the evidence, reasonably could have reached a different result.

Conclusion

In sum, we believe that the state appellate court unreasonably concluded that Mr. Sussman had not been prejudiced by his counsel's errors. Unlike the Supreme Court of Wisconsin in DeSantis and unlike this court in Redmond, its approach to the admission of the evidence failed to consider the possible impact on the defendant's rights under the Confrontation Clause. We therefore reverse the judgment of the district court and remand the case with instructions to grant the writ with respect to Mr. Sussman's child sexual assault convictions unless the State elects to retry Mr. Sussman.

REVERSED and REMANDED with INSTRUCTIONS