No Federal Do‑Over: Postconviction Counsel’s Inaction Bars § 2254 Evidentiary Development; State “Missing‑Evidence” Inference Not Cognizable Under § 2254(d)(1)

Introduction

This Seventh Circuit decision in Birt Ford v. Dennis Reagle addresses the reach and rigor of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in two critical settings that frequently arise in federal habeas litigation:

Whether a federal court may hold an evidentiary hearing to develop a record that state postconviction counsel failed to build; and
Whether a state appellate court’s reliance on a state-law “missing-evidence” inference (presuming absent testimony would be unfavorable) can justify rejection of an ineffective-assistance claim without triggering relief under § 2254.

The case stems from a 2005 Allen County, Indiana prosecution in which Birt Ford was convicted of rape, burglary, and related offenses against his estranged wife and sentenced to 70 years. After direct appeal failed, Ford pursued state postconviction relief (PCR), alleging ineffective assistance of trial counsel under Strickland v. Washington. The focal claims pertinent here were: (1) counsel failed to pursue plea negotiations despite Ford’s instruction; and (2) counsel erred in witness strategy (promising Ford and his sister would testify and eliciting harmful testimony from Ford’s daughter).

Critically, Ford had appointed and then retained PCR counsel for 11 years, but neither secured any affidavit or testimony from trial counsel—the necessary predicate evidence for the plea-bargaining Strickland claim. After both lawyers withdrew, the state court ordered the case submitted on affidavits; Ford unsuccessfully sought court assistance to obtain trial counsel’s testimony and filed only his own affidavit. State courts denied relief. The federal district court also denied habeas relief, expressing concern about fairness but concluding AEDPA barred any new federal evidentiary hearing. The Seventh Circuit affirms.

Summary of the Opinion

The Seventh Circuit holds:

No federal evidentiary hearing under § 2254(e)(2): Failures by state postconviction counsel to develop the record are attributed to the petitioner. Under Shinn v. Ramirez and Williams v. Taylor, AEDPA precludes a federal evidentiary hearing absent narrow exceptions, which do not apply here.
Review is confined to the last reasoned state-court decision: The court corrects the district court’s “look-through” to the state trial court and instead evaluates the Indiana Court of Appeals’ rationale as the operative decision.
No relief under § 2254(d)(1) or (d)(2):
- The state appellate court relied on a state-law “missing-evidence” inference (Oberst v. State) to find a failure of proof because Ford presented no corroborating evidence from trial counsel. Even if debatable, that is a state-law evidentiary matter and not a basis for § 2254(d)(1) relief.
- Section 2254(d)(2) is inapplicable because the appellate court made no factual findings; it rejected the claim due to an underdeveloped record, not an unreasonable factual determination.
Ineffective-assistance subclaims fail:
- Cross-examination of Ford’s daughter: even assuming deficient performance, there was no Strickland prejudice.
- Failure to have Ford testify after suggesting he would: no prejudice—his story was already before the jury via a videotaped police interview, and testifying posed obvious risks.
- Not calling Ford’s sister to offer character/credibility testimony: not deficient because the proposed testimony was inadmissible under Indiana evidence law.

Result: The denial of habeas relief is affirmed.

Analysis

Precedents Cited and How They Shaped the Decision

Strickland v. Washington, 466 U.S. 668 (1984): Defines the two-pronged ineffective assistance test—deficient performance and prejudice—filtered here through AEDPA’s “double deference.”
Lafler v. Cooper, 566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S. 134 (2012): Extend the Sixth Amendment right to effective counsel to plea negotiations and establish prejudice standards for lost-plea claims. The district court relied on Lafler/Frye and Indiana’s requirement of an admission of guilt to note Ford could not show prejudice; the Seventh Circuit ultimately resolved on other grounds (record insufficiency and AEDPA limits).
Harrington v. Richter, 562 U.S. 86 (2011); Brown v. Davenport, 596 U.S. 118 (2022): Emphasize AEDPA’s stringent deference—relief is available only for extreme malfunctions, and a state court’s reasonable application of federal law must stand even if a federal court disagrees.
Cullen v. Pinholster, 563 U.S. 170 (2011): Confirms that § 2254(d) review is limited to the state-court record; complements the holding that evidentiary development is tightly restricted in federal court.
Williams v. Taylor, 529 U.S. 420 (2000) and Shinn v. Ramirez, 596 U.S. 366 (2022): Pivotal. They establish that a petitioner “fails to develop” the record under § 2254(e)(2) when PCR counsel is negligent or worse, and that such failures are attributed to the petitioner. These cases foreclose Ford’s request for a federal evidentiary hearing.
Wilson v. Sellers, 584 U.S. 122 (2018): Authorizes “look-through” when the last state decision is unexplained. The Seventh Circuit clarifies that where, as here, the intermediate appellate court issues a reasoned opinion, that is the controlling decision for § 2254(d) review.
Dunn v. Reeves, 594 U.S. 731 (2021) (per curiam); Burt v. Titlow, 571 U.S. 12 (2013): Reinforce AEDPA’s presumption that state courts know and follow the law and Strickland’s presumption that counsel acted reasonably—“double deference.”
Clifton v. United States, 45 U.S. 242 (1846) and Mammoth Oil Co. v. United States, 275 U.S. 13 (1927): Address the “missing evidence” inference at common law. The Seventh Circuit explains that, on habeas, the operative question is not whether federal courts use it, but whether a state court’s use of a state-law evidentiary inference violates clearly established Supreme Court federal law—it does not.
O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Hicks v. Hepp, 871 F.3d 513 (7th Cir. 2017): Exhaustion and procedural default principles, invoked regarding Ford’s failure to raise the cross-examination claim to the Indiana Supreme Court. The panel resolves the issue on the merits, finding no prejudice.
Pierce v. Vanihel, 93 F.4th 1036 (7th Cir. 2024): Emphasizes that errors of state law are not cognizable on federal habeas and reiterates the strict standards for overcoming state factual findings—points the panel leverages to reject Ford’s § 2254(d)(1) and (d)(2) theories.
Lee v. Kink, 922 F.3d 772 (7th Cir. 2019): Distinguished. Lee earned a federal hearing after diligently but unsuccessfully seeking one in state court. By contrast, Ford’s PCR counsel did not diligently develop the record over many years; that omission is attributed to Ford under Shinn and Williams.
Indiana authorities:
- Oberst v. State, 935 N.E.2d 1250 (Ind. Ct. App. 2010): Allows inference that missing counsel testimony would not support the petitioner’s allegations.
- Norris v. State, 896 N.E.2d 1149 (Ind. 2008): Indiana requires an admission of guilt and an adequate factual basis for a guilty plea—relevant to Lafler/Frye prejudice but not the basis of the Seventh Circuit’s ultimate ruling.
- Miller v. Zatecky, 820 F.3d 275 (7th Cir. 2016): Federal habeas courts accept state courts’ interpretations of state evidence rules; ties into the conclusion that failing to present inadmissible evidence is not deficient performance (see also Kavanagh v. Berge, 73 F.3d 733 (7th Cir. 1996)).

Legal Reasoning

1) The AEDPA Framework and “Double Deference”

Under § 2254(d), a federal court cannot grant habeas relief unless the state court’s decision is contrary to or an unreasonable application of clearly established Supreme Court precedent, or rests on an unreasonable determination of facts. Because ineffective-assistance claims already defer to counsel’s strategic choices (Strickland), AEDPA overlays an additional layer of deference—courts give “both the state court and the defense attorney the benefit of the doubt.”

2) The “Last Reasoned Decision” Controls

The district court “looked through” the Indiana Court of Appeals’ opinion to the trial court’s different rationale on the plea-bargaining claim. The Seventh Circuit corrects this: Wilson v. Sellers applies where the last state decision is unexplained. Here, the Indiana Court of Appeals issued the last reasoned decision, so its reasoning—not the trial court’s—governs § 2254(d) review. This matters because the appellate court denied relief based on a failure-of-proof analysis relying on a state-law evidentiary inference, not on the guilty-plea/admission ground the trial court emphasized.

3) State “Missing‑Evidence” Inference Is Not a § 2254(d)(1) Problem

The Indiana Court of Appeals applied Oberst’s state-law inference: when a petitioner challenging counsel’s performance produces no testimony from that counsel, the court may infer the testimony would not help the petitioner. Ford argued this was an unreasonable application of federal law, invoking federal cases discussing missing-evidence concepts. The Seventh Circuit rejects that argument. The question under § 2254(d)(1) is whether the state court’s decision contradicts or unreasonably applies clearly established Supreme Court federal law. A state court’s use of a state-law evidentiary presumption to weigh a record’s sufficiency is not the stuff of § 2254(d)(1) unless it transgresses controlling federal constitutional commands—which it did not here.

4) No § 2254(d)(2) Gateway—There Were No Factual Findings to Attack

Ford tried to re-cast the issue as a § 2254(d)(2) challenge, claiming the state court unreasonably determined facts against him given his efforts (once pro se) to secure trial counsel’s affidavit. The Seventh Circuit explains that the Indiana Court of Appeals did not make adverse factual findings; it denied relief because the record was inadequately developed. Without factual determinations, § 2254(d)(2) is not a viable route. That point is subtle but important: a failure-of-proof disposition is not the same as a flawed finding of fact.

5) § 2254(e)(2) Bars a Federal Evidentiary Hearing

This is the decision’s core holding. If an applicant “failed to develop the factual basis” of a claim in state court, § 2254(e)(2) prohibits a federal evidentiary hearing unless very narrow exceptions apply (new retroactive constitutional rule or newly discovered factual predicate, plus a high innocence showing). “Failure” includes lack of diligence by PCR counsel; that neglect is imputed to the petitioner (Williams; Shinn). Ford’s PCR lawyers, over 11 years, did not obtain trial counsel’s testimony. That failure is Ford’s under AEDPA. His later pro se attempts after the affidavit-only order cannot cure that lack of diligence. Accordingly, the district court correctly declined to hold a federal hearing.

The Seventh Circuit distinguishes Lee v. Kink, where the petitioner repeatedly but unsuccessfully sought a state hearing and thus showed diligence. Here, the fault lies with PCR counsel, not the state courts.

6) The Witness‑Strategy Claims Fail Under Strickland

Cross-examination of daughter: Even assuming a misstep in soliciting testimony about Ford’s temper, the brief exchange was non-prejudicial given the robust corroborated evidence of guilt.
Not calling Ford after suggesting he would testify: No prejudice; his account was already in evidence via his recorded statement. Putting him on the stand risked contradictions and damaging cross-examination. The state court’s prejudice assessment was reasonable.
Not calling Ford’s sister to attack the victim’s character: Indiana law rendered the proffered character testimony inadmissible. Counsel is not ineffective for omitting inadmissible evidence; the state court’s determination of state evidence law binds federal habeas courts.

Impact

This opinion fortifies several practical and doctrinal points that will reverberate in habeas and postconviction practice across the Seventh Circuit:

Record development is paramount—and must happen in state court: Petitioners and PCR counsel must proactively obtain affidavits and testimony from trial counsel when raising Strickland claims, especially plea-bargaining allegations. After Shinn, federal court is not a backstop for record-building.
Failure-of-proof vs. factual determinations matters: When a state appellate court denies relief for lack of evidence, § 2254(d)(2) (unreasonable factual determination) generally cannot serve as a portal to de novo review or a federal hearing.
State evidentiary rules will stand absent a federal constitutional conflict: A state court’s reliance on a state-law inference about missing witnesses is not, without more, a § 2254(d)(1) problem.
“Look through” has limits: On habeas, focus on the last reasoned state-court opinion. Practitioners should brief and target the operative rationale, not alternative or superseded rationales below.
Plea-bargaining claims need concrete proof and prejudice: Defendants must marshal evidence of an offer, a reasonable probability of acceptance, court approval, and a more favorable outcome. In jurisdictions like Indiana that require an admission of guilt for a plea, continued claims of innocence complicate the Lafler/Frye prejudice showing.
Trial strategy claims must show real prejudice: Brief missteps in cross-examination and unmet opening promises will not warrant relief without a substantial likelihood of a different outcome.

Practically, defense teams should contemporaneously document plea discussions; PCR counsel should promptly subpoena or depose trial counsel; and habeas counsel should align arguments with the last reasoned state decision and the tight confines of AEDPA.

Complex Concepts Simplified

AEDPA deference (§ 2254(d)): Federal courts must defer to reasonable state-court decisions; relief is reserved for extreme errors that no fairminded jurist could endorse.
Double deference (Strickland + AEDPA): Courts presume counsel acted reasonably and also defer to the state court’s adjudication of that question.
Last reasoned decision: The federal court evaluates the reasons given in the final state opinion that actually explains its decision, not earlier or unexplained orders.
Missing-evidence inference: If a party could have produced a crucial witness (like trial counsel) and didn’t, a court may infer the testimony would not have helped.
§ 2254(e)(2) evidentiary hearing bar: If the petitioner (through PCR counsel) didn’t diligently develop the facts in state court, the federal court generally cannot hold a new evidentiary hearing.
Lafler/Frye prejudice: To win on a lost-plea claim, a petitioner must show a reasonable probability that a favorable plea would have been offered, accepted by both defendant and court, and produced a less severe outcome.
Procedural default: If you don’t present a federal claim through one complete round of state appellate review, federal courts usually won’t entertain it absent cause and prejudice or a miscarriage of justice.

Conclusion

Birt Ford v. Reagle is a forceful application of AEDPA’s constraints on federal habeas review. The Seventh Circuit reaffirms that petitioners cannot use federal court to cure state-level record-development failures by postconviction counsel; those omissions are attributed to the petitioner under § 2254(e)(2), closing the door to federal evidentiary hearings except in narrow, inapplicable circumstances. The court also underscores that when the last reasoned state court decision denies a Strickland claim based on a state-law evidentiary inference and a barren record, that is not a cognizable basis for relief under § 2254(d)(1), nor does it implicate § 2254(d)(2) in the absence of factual findings.

On the merits of the remaining ineffective-assistance claims, the court’s message is familiar but critical: strategy missteps must translate into a reasonable probability of a different outcome to warrant relief. Here, they did not. Taken together, this opinion tightens the already exacting standards for habeas petitioners and offers clear guidance to practitioners: develop the record in state court, align federal arguments with the last reasoned state decision, and be prepared to prove not only deficiency but outcome-changing prejudice.