In the

United States Court of Appeals
               For the Seventh Circuit

No. 07-3011

L ARRY G EORGE,
                                              Petitioner-Appellant,
                                 v.

JUDY P. S MITH, Warden,
                                             Respondent-Appellee.


           Appeal from the United States District Court
                for the Eastern District of Wisconsin.
         No. 04-C-941—Charles N. Clevert, Jr., Chief Judge.



    A RGUED JANUARY 8, 2009—D ECIDED O CTOBER 27, 2009




   Before E ASTERBROOK , Chief Judge, and E VANS and
T INDER, Circuit Judges.
  T INDER, Circuit Judge. In 2001, Larry George was con-
victed in Wisconsin of two counts of second degree
sexual assault by use of force, Wis. Stat. § 940.225(2)(a), and
one count of false imprisonment, Wis. Stat. § 940.30.
George wended his way through Wisconsin’s appeal and
postconviction procedures but was rebuffed at every
point. After running out of options in Wisconsin, he
2                                               No. 07-3011

filed a federal petition for habeas corpus in the Eastern
District of Wisconsin. The district court denied the
petition as well as George’s request for a certificate of
appealability.
  On appeal, we granted George a certificate of
appealability allowing him to present a Confrontation
Clause challenge based on his counsel’s inability to cross-
examine the complaining witness who accused him
of sexual assault. (The nature of the charges here causes
us to refer to this man anonymously as the victim through-
out the opinion). On appeal, George’s counsel finds
no merit in that claim and challenges instead the effec-
tiveness of George’s trial counsel.
  George argues that his trial counsel failed to under-
stand Wisconsin’s rape shield law and therefore mistak-
enly did not object when the prosecutor improperly
questioned the victim about the victim’s sexual orientation.
Furthermore, George argues, once the victim testified
that he was heterosexual, George’s trial counsel should
have impeached the witness’s claim with the testimony
of another man who George claims had a homosexual
encounter (or relationship) with the victim. George
argues that his trial counsel’s failure to pursue this line
of inquiry was an error that rendered his trial counsel’s
assistance constitutionally deficient. We disagree.


                      I. Background
 George’s convictions arose from an incident on New
Year’s Eve in 1995. George and an accomplice abducted
No. 07-3011                                               3

the victim (after a fight with the man and his friends) as
he walked home from a bar in Appleton, Wisconsin.
They took the man to the accomplice’s house, had a few
beers, and then George and the man took a cab to a
motel in Green Bay and George checked in under an
alias. At the motel, according to the jury’s verdict, George
assaulted the man twice, forcing him to perform oral sex
both times. The next morning, George drove the man
back to his job at a restaurant, where the man spoke to the
police (who were alerted to the abduction by the man’s
friends). After initially denying that he was assaulted,
the man eventually admitted to police, over a series of
interviews, that George had assaulted him in the motel
room.
  Problems in the case against George are readily ap-
parent after a glance at that sequence of events. For
instance, why did the evening begin with a fight and end
with the two combatants checking into a motel together?
Why did the victim ride back to work with George the
morning after being assaulted? Why did the victim’s
story change? At George’s trial, defense counsel attacked
these areas of inconsistency, focusing on the number of
differing stories the victim told the police and noting,
for the jury, the multiple chances the victim had to
escape George’s clutches. Notably, however, George’s
defense was not based on consent; instead, George’s
counsel argued that even though George and the
victim had stayed in the hotel together (a fact that was
impossible to dispute), no sexual assault occurred and
the victim had made the entire story up to avoid paying
4                                               No. 07-3011

a $900 debt. It was this debt, incidentally, that initially
led George and his accomplice to track the victim down.
  For his part, the prosecutor offered an explanation
for the victim’s continued travels with George over the
course of the evening by pointing out that the two had
an incentive to collaborate to some extent after the
fight because they both had outstanding warrants and
therefore sought to avoid the police, who had been
alerted by the victim’s roommates. The prosecutor then
attempted to rehabilitate the victim’s credibility, which
had been damaged by his shifting versions of events
that night, by asking the victim whether he was heter-
osexual. The victim said he was and that he was embar-
rassed about reporting a homosexual assault, which
accounted for his initial less-than-forthcoming inter-
views with the police and the resulting inconsistencies
in his account of what happened that evening. The prose-
cutor emphasized this rationale during his closing argu-
ment.
  George was convicted. He unsuccessfully sought
postconviction review in the Wisconsin trial court,
arguing, among other things, that his trial counsel was
ineffective. On appeal from the denial of his postcon-
viction motion and his conviction, he maintained his
ineffectiveness claims and asserted that the prosecutor
violated Wisconsin’s rape shield statute when he
elicited testimony from the victim about his sexual orienta-
tion. The Wisconsin appeals court rejected the rape
shield claim holding that “[s]exual orientation is not
conduct or reputation” as defined in the rape shield
No. 07-3011                                                5

statute, Wis. Stat. § 972.11 (2)(b). State v. George, No. 03-
0299-CR, 

, at *2,¶7 (Wis. Ct. App. 2004).
His other claim, that the failure to cross-examine the
victim rendered his counsel ineffective, was not so neatly
addressed. The Wisconsin Court of Appeals threw out a
number of his ineffectiveness claims as abandoned or
waived, but did not specify which claims fell into this
category. The court rejected several others because
George did not call appropriate witnesses at the
postconviction hearing. (As we will discuss, we believe
that this group of claims includes the failure to cross-
examine issue George raises before us). The court
rejected another set of ineffectiveness claims because
George could not establish prejudice resulting from his
counsel’s decisions. The Wisconsin Supreme Court denied
George’s petition for review.
  George then sought review in the Eastern District of
Wisconsin. There, he raised a number of issues,
including the two before us, but in a different form. He
argued that he was entitled to a writ because the state
violated its own rape shield law in prosecuting him. He
also argued that his inability to cross-examine the victim
about his sexual orientation violated the Confrontation
Clause. The district court rejected the rape shield claim,
noted that the Confrontation Clause argument did not
make sense because George had an opportunity to fully
cross-examine the victim, and then construed the cross-
examination issue as an ineffectiveness issue, which the
district court also rejected. The court denied the writ and
refused to issue a certificate of appealability.
6                                                  No. 07-3011

  On appeal, we issued a certificate of appealability,
finding that “George has made a substantial showing of
the denial of a constitutional right as to whether the
state trial court violated his rights under the con-
frontation clause when it did not permit him to cross-
examine the victim about a prior homosexual relationship.”


                         II. Analysis
    A. Amendment of Certificate of Appealability
  As a threshold matter, we grant George’s request to
amend the certificate of appealability so that he may
address the Sixth Amendment issues he raises in his
briefs. As we have noted in the past, amendment of the
certificate is appropriate even if the petitioner makes
the request in his brief on appeal in the “rare instances
where the importance of an issue does not become
clear until later in an appellate proceeding.” Ouska v.
Cahill-Masching, 

, 1046 (7th Cir. 2001). George
was not represented by counsel in the district court, cf. 

n.8, but he did raise the issues before us here: the
rape shield and failure to cross-examine claims. Both
issues, as his counsel notes, are more properly framed as
a challenge to his counsel’s effectiveness (rather than as
Confrontation Clause issues), and we thus are inclined
to amend the certificate of appealability to squarely
address the issues that George’s counsel seeks to raise.
  Wisconsin argues that George has not made “a sub-
stantial showing of the denial of a constitutional right as
to a different issue,” justifying the amendment of the
No. 07-3011                                                   7

certificate. See 

The question is whether George
has demonstrated “that reasonable jurists could debate
whether this challenge in [his] habeas petition could
have been resolved in a different manner or that the
issue presented was adequate to deserve encouragement
to proceed further.” 

Given that we have
already granted a certificate of appealability wherein
we asked George to address any Confrontation Clause
issues stemming from his inability to cross-examine
the victim about a prior homosexual relationship, we
believe the consequence of the issue justifies consider-
ation. The constitutional import of the issue survives
when we examine the issue through the prism of an
ineffective assistance claim because the credibility of the
victim was the key issue in the case; failings in this area
could have affected the trial’s outcome. Therefore, we
believe that George has made a sufficient showing to
allow expansion of the certificate of appealability, and
proceed to an analysis of the case.


  B. Constitutional Effectiveness of George’s Trial Counsel
  George asks for a writ of habeas corpus under 28 U.S.C.
§ 2254 on the grounds that he was convicted without the
effective assistance of counsel in violation of the Sixth
Amendment. “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having pro-
duced a just result.” Strickland v. Washington, 

,
686 (1984). To establish that his counsel’s performance
8                                               No. 07-3011

was constitutionally ineffective, George must show that
his counsel’s performance was below an objective
standard of reasonableness and that the deficient perfor-
mance actually prejudiced him. 

1. Rape Shield Claim
  We can quickly dispense with George’s claim that his
lawyer should have objected when the prosecutor
elicited testimony from the victim about his sexual orienta-
tion. George raised this claim below (and in Wisconsin)
on the grounds that his conviction was secured through
a violation of state law. This, of course, does not make
out a claim for habeas relief under 28 U.S.C. § 2254,
which covers only prisoners in custody “in violation of
the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a); see Lambert v. Davis, 

, 778-
79 (7th Cir. 2006) (citing Estelle v. McGuire, 

,
68 (1991)). Converting the claim to an ineffective
assistance claim would not get him anywhere either. The
Wisconsin Court of Appeals agreed with his lawyer’s
interpretation of the statute and found that the evidence
was properly admitted. We are obviously not going to
displace Wisconsin’s interpretation of its own law with
our own, much less find George’s counsel ineffective
for adopting a view of Wisconsin law that has been
ratified by the state’s appeals court. See Mullaney v.
Wilbur, 

, 691 (1975) (“[S]tate courts are the
ultimate expositors of state law and . . . we are bound by
their constructions except in extreme circumstances not
present here.” (citation omitted)). This claim must there-
fore fail.
No. 07-3011                                                9

2. Failure to Cross-Examine Claim
  The parties dispute whether George’s failure to cross-
examine claim was reached on the merits in Wisconsin
court, although the state does not dispute that the issue
has been properly preserved. Whether the state courts
reached the issue matters only for the purpose of the
standard of review we should apply.
  George raised this ineffectiveness issue in an identical
form in the Wisconsin courts in his postconviction
motion for a new trial, his brief on his direct appeal to
the Wisconsin court of appeals, his reply brief on direct
appeal, and his petition to the Wisconsin Supreme
Court. If any of the Wisconsin courts ruled on the merits
of the issue, our review is constrained by the Anti-Terror-
ism and Effective Death Penalty Act (AEDPA), 28 U.S.C.
§ 2254(d)(1). See Canaan v. McBride, 

, 382 (7th
Cir. 2005) (“[The AEDPA] standard only applies . . . to a
claim that was adjudicated on the merits in State court
proceedings.” (quotation omitted)). If AEDPA does not
apply, we review the state court decisions “as law and
justice require,” a more generous standard. 

(quoting 28 U.S.C. § 2243).
  The district court found that the ineffectiveness issues
had been ruled on by the Wisconsin Court of Appeals
and that the court held that the decision not to impeach
the complaining witness was one of strategy. Such an
application of Strickland v. Washington, 

(1984),
the district court found, was not unreasonable or
contrary to Supreme Court precedent. We are not sure
10                                               No. 07-3011

that the state court was so clear about this issue. The
Wisconsin court divided George’s claims into five classes,
ranging from general claims of ineffectiveness to more
specific allegations of failure. It appears that the specific
claim before us—the failure to cross-examine claim—was
treated in the former class of general claims of ineffec-
tiveness. The court wrote:
     Several of George’s claims of ineffective assistance
     failed because he did not call appropriate wit-
     nesses at the postconviction hearing. The only
     witnesses called at the postconviction hearing were
     George, his trial attorney and an Appleton police
     officer who investigated the [George’s] uncharged
     earlier incidents of sexual assault and intimidation
     by weapons. None of these witnesses’ testimony
     established trial counsel’s deficient performance
     or prejudice. George alleges ineffective assistance
     because his counsel failed to investigate some
     defenses, did not call witnesses to support those
     defenses and did not effectively cross-examine [the
     victim] about drinking and drug use. He faults
     his counsel for not producing jail inmates to im-
     peach [the victim’s] testimony and for not
     locating other motel guests to learn whether they
     heard anything during the assaults. To prevail on
     these issues, George was required to call these
     witnesses at the Machner hearing to establish that
     they were willing to testify and that they would
     have provided exculpatory information. Without
     the testimony from these witnesses, it would be
     pure speculation to conclude that his defense was
No. 07-3011                                                11

    prejudiced by his counsel’s failure to present their
    testimony.
George, 

, at *2, ¶10 (footnote omitted).
  There’s a lot there—but notably missing is an analysis
of the specific claim we are considering here. We could
infer, as the district court did, that the Wisconsin court
found that the absence of witnesses doomed the claim,
but we hesitate to apply a stricter standard of review
without a clearer indication that Wisconsin fully con-
sidered George’s claim on the merits. See 

(“As a practical matter, a federal court cannot
apply the deferential standard provided by § 2254(d) in
the absence of any state court decision on the issue.”); see
also Wiggins v. Smith, 

, 534 (2003) (“In this
case, our review is not circumscribed by a state court
conclusion with respect to prejudice, as neither of
the state courts below reached this prong of the
Strickland analysis.”).
  Unfortunately for George, our standard of review
matters little because even under the more generous
standard, the claim must fail. At the outset, we note
that we can conceive of a case in which a failure to
impeach a testifying victim who lied about his sexual
orientation would satisfy the Strickland test for deficient
performance causing prejudice to the defendant. The
problem for the defendant here is that he has given us
no reason to think that this is that case.
  From the petitioner’s brief, here is the entire factual
basis of George’s ineffectiveness claim:
12                                                   No. 07-3011

     During the postconviction hearing, Mr. George
     testified that he told counsel, prior to trial, that [the
     victim] had had a homosexual relationship with
     someone at the restaurant where he worked:
       Question: Did you tell [trial counsel] that [the
     victim] had had a homosexual relationship with
     someone at Apollon Restaurant?
       Mr. George: Yes, I did.
Pet’r Br. 31.
  This is not enough. “To be entitled to federal habeas
relief from a state court judgment, a petitioner must show
that he is being held in violation of the Constitution or
laws of the United States.” Gross v. Knight, 

,
671 (7th Cir. 2009) (emphasis added). To prevail on an
ineffective assistance of counsel claim, George “must show
that (1) his counsel’s performance was deficient; and
(2) this deficient performance prejudiced him.” 

added). The responsibility is on the petitioner to
“overcome the presumption that, under the circumstances,
the challenged action might be considered sound trial
strategy.” 

(quotation omitted). It
is incumbent on the petitioner to “identify the acts or
omissions of counsel that are alleged not to have been
the result of reasonable professional judgment.” 

Similarly, the petitioner must “affirmatively prove”
the prejudice prong of his Strickland claim and “show
that [the errors] actually had an adverse effect on the
defense.” 

(emphasis added). “To demonstrate
prejudice from counsel’s deficient performance, ‘a defen-
No. 07-3011                                                13

dant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’ ” Pole v.
Randolph, 

, 934 (7th Cir. 2009) (quoting Strick-

) (emphasis added). “If a defendant
is unable to make a sufficient showing on either component
of the Strickland standard, we need not consider the
other component.” 

   In other words, in Strickland, the Supreme Court
made clear that a habeas petitioner has an obligation to
show us why his counsel was ineffective. George just
hasn’t done so. Keep in mind that we are the fifth court
to consider this claim. Petitioner has to give us some
specific reason to believe that the other four courts got
it wrong and that he is being detained in violation of the
Constitution. Speculation based on hindsight is insuf-
ficient to make this showing. See 

. Here, in order for us to grant the writ George seeks,
he needs to offer some basis for us to believe that a wit-
ness was available to testify to the victim’s sexual orienta-
tion and that there was a reasonable probability that
this witness’s testimony would have made a difference
in the outcome of the trial. We have no idea who
would testify about the victim’s sexual orientation, the
nature of the witness’s relationship with the victim, or
any hint as to the credibility of the testimony.1 All of these



1
 Perhaps sensing the fundamental problem with his claim,
George sought to supplement the record on appeal (ostensibly
                                              (continued...)
14                                                      No. 07-3011

factors would be important to both prongs of the
Strickland analysis.
  Perhaps George would argue that the problem is not his
counsel’s failure to interrogate a particular witness but
rather that his counsel should have pursued the leads
that George offered him. For such a claim, he would
need to prove that there was a witness who could have
testified credibly about the victim’s sexuality, that his
counsel knew or should have known about the witness,
and that there was a reasonable probability that such a


1
   (...continued)
to correct his counsel’s statements at oral argument) by intro-
ducing affidavits from witnesses who swore that they would
testify to the victim’s homosexuality. But George originally
produced the affidavits in connection with a state court
motion for a new trial that was filed after the district court
had already denied his petition for the writ. They were not
presented to us until after argument. We have allowed a
habeas petitioner to supplement the record on rare occasions,
but only when the information included was important to
an understanding of the prior proceedings in a plaintiff’s case.
See, e.g., Crockett v. Hulick, 

, 1188 n.3 (7th Cir. 2008);
Ruvalcaba v. Chandler, 

, 562 n.2 (7th Cir. 2005). Here,
the evidence George seeks to admit is essentially brand new;
it was only offered to the Wisconsin trial court after the begin-
ning of George’s federal habeas proceeding. Accordingly, it is
not evidence “omitted from or misstated in the record by error
or accident”, Fed. R. App. P. 10(e)(2), and we denied the
motion to supplement the record on appeal. Our decision, of
course, does not preclude George from continuing to seek a new
trial based on procedures, if any, provided to him by Wisconsin.
No. 07-3011                                               15

witness’s testimony would have made a difference in
the outcome of his case. See 

Once again,
George’s hint that there was a coworker of the victim
who had a homosexual encounter or relationship with
the victim is not enough.
  Faced with this need to affirmatively prove the inef-
fectiveness of his counsel, George has only offered us a
reed that is far too thin to support his “failure to investi-
gate” claim. See 

(“[A] particular decision not to
investigate must be directly assessed for reasonableness
in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.”). Given the sparsity
of details, we are unprepared to make a blanket assump-
tion that a victim of a homosexual assault would neces-
sarily be effectively impeached by revelations of a prior
homosexual relationship. The relevance of the prior
sexual relationship to the homosexual assault and the
shame associated in reporting it is not obvious and
should have been developed by the petitioner. It seems to
us that, for instance, a homosexual man may be just as
embarrassed about reporting sexual assault as a heter-
osexual man who suffered the same assault. As such,
without more facts, George cannot show that counsel’s
failure to impeach the victim’s testimony regarding his
sexual orientation was unreasonable or prejudicial.
  Finally, we should mention that George’s case did not
turn in any sense on the sexual orientation of the victim.
The defense George offered was not a consent defense.
He denied that the assault ever happened and that the
victim made it up to avoid paying a debt of $900 (the
16                                               No. 07-3011

debt led to the initial confrontation on the streets of
Appleton). But, George could not overcome the
undisputed evidence at trial that showed that he was
involved in an altercation at the victim’s house, that the
victim’s abduction was serious enough for his friends to
call the police, and that George took the victim to a hotel
room in Green Bay. A consent defense may have made
sense in clearing up the details within the evening’s
undisputed time frame (for example, it could have
been argued that the evidence tended to show that the
evening turned from a hostile one to a more companion-
able one). But the trial strategy was instead a direct
attack on the victim’s entire story. The choice to pursue
this defense is not challenged and such a decision falls
squarely within the realm of trial strategy and is thus
subject to a strong presumption that the decision consti-
tuted effective advocacy. See 

Smith v. Gaetz, 

, 354 (7th Cir. 2009) (“It is not this court’s role to
play Monday-morning quarterback concerning which
was the better of two viable trial strategies.”). At no point,
not even in this court, does George assert that he had a
consensual sexual encounter with the victim; perhaps
because that is not true or perhaps because he would
find such an assertion embarrassing or compromising
of some other relationship. But there is no point in specu-
lating about a defense that was not pursued. In the context
of the defense George did present, the complaining wit-
ness’s sexual orientation was at best a side issue. Failure
to pursue this line of inquiry was not unreasonable and
George’s conviction was therefore not a result of a break-
down in the adversary process. 

No. 07-3011                                        17

                   III. Conclusion
  Accordingly, the district court’s denial of George’s
petition is A FFIRMED.




                        10-27-09