                           NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                     Fed. R. App. P. 32.1



              United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                      Argued March 3, 2009
                                      Decided July 28, 2009

                                              Before

                               WILLIAM J. BAUER, Circuit Judge

                               MICHAEL S. KANNE, Circuit Judge

                               DIANE P. WOOD, Circuit Judge



No. 07-3820

MICHAEL D. BURNS,                                      Appeal from the United States District
               Petitioner-Appellant,                   Court for the Eastern District of
                                                       Wisconsin.
       v.
                                                       No. 04-C-582
BRADLEY HOMPE,
                      Respondent-Appellee.             Aaron E. Goodstein,
                                                       Magistrate Judge.

                                             ORDER

    Michael Burns, a Wisconsin state inmate, was convicted after a bench trial of one count of
first-degree sexual assault of a child and sentenced to fifteen years in prison and ten years’
extended supervision. After exhausting his state remedies, Burns filed a petition for a writ of
habeas corpus. See 28 U.S.C. § 2254. The district court denied his petition, but this court certified
two issues for appeal: whether the state produced sufficient evidence that Michael Burns was
the assailant in light of his son’s confession and whether counsel rendered ineffective
assistance. Bearing in mind the standards that apply to habeas corpus cases, we conclude that
the evidence was sufficient and that counsel’s performance was adequate. We therefore affirm
No. 07-3820                                                                               Page 2

the district court’s judgment.

                                                I

    Sally, an eleven-year-old girl, was sexually assaulted in the early morning hours of
December 17, 2000. (“Sally” is a pseudonym we have chosen to preserve the victim’s privacy
for purposes of this order.) That evening, Sally had been invited to sleep over at Michael
Burns’s house to keep his fiancée’s six-year-old daughter company. Sally’s family and the
Burns family were long-time friends, and Sally regularly visited the house.

    While watching a movie, the girls fell asleep on the couch. Around 12:30 a.m., according
to Sally’s testimony, while she was sleeping, she felt someone kiss her first on the lips and then
on the forehead. This person had facial hair, and smelled like beer and cigarettes. Sally said
that she never opened her eyes because she was scared. The same person placed his hand
inside her underwear and inserted his finger into her vagina. Sally kept her eyes shut, but she
rolled over to face the back of the couch and her assailant walked away. She heard him walk
to the kitchen, open the refrigerator, and open a can. Within minutes, the other girl woke up
crying, and someone walked in from the kitchen to comfort her. Sally opened one eye and saw
that it was Burns.

    Two days later, Sally told her older sister that Burns assaulted her. The two girls told their
mother, who notified the police. Sally later made a detailed report to police investigators.
Burns was arrested and charged with the assault on December 19. When first questioned by
police about who was in his home on Saturday night, Burns said that only he, his fiancée, and
his fifteen-year-old son, Bryan, were there. It was only after prompting by police that he
admitted that the two girls were there, too.

    At the bench trial, Sally recounted her story, accusing Burns of assaulting her. During his
father’s defense, Bryan testified that he was the one who assaulted Sally and had inserted his
finger into her vagina. According to Bryan, after assaulting Sally, he went back upstairs to his
bedroom. Only then, he maintained, did his father emerge from his first-floor bedroom and
go to the kitchen. Bryan denied smoking or drinking beer the night of the assault. Bryan did
not publicly confess until the trial, but he explained that he had confessed to his father,
Michael, after Michael told Bryan that angels visited Michael while he was in jail, and these
angels told Michael that Bryan had assaulted Sally.

    Michael Burns also testified at trial, maintaining his innocence. In his version of events, he
awoke around 1:30 a.m. and went to the kitchen for a Pepsi and a cigarette. He testified that
he saw his son running back upstairs in the reflection of the kitchen window. He did not think
anything of it at the time, but after his arrest “everything just start[ed] coming together,” and
he realized that his son must have assaulted Sally. Burns did not mention to the police that he
No. 07-3820                                                                              Page 3

saw his son, but he too testified that angels visited him in jail and told him that Bryan had
assaulted Sally. Initially, Burns denied drinking any beer that day, but later he admitted that
he had a beer early in the evening and generally had been drinking one to three beers a day
since he stopped attending AA.

    The trial court credited Sally’s testimony and disbelieved Michael and Bryan’s accounts of
the assault. The court specifically stated that Sally’s testimony was sufficient and believable,
even though her identification was based on circumstantial evidence. The court appreciated
that Sally did not claim to have seen her assailant, but it noted that she offered consistent
testimony that she could smell beer and cigarettes on the assaulter’s breath and observed that
he had facial hair. The court also remarked that she did not “appear to have any axe to grind”
and testified calmly about the events. Bryan’s testimony, on the other hand, was tentative and
inconsistent with his report to police. He appeared to be looking to his father for approval, and
his description of the assault did not match the description given by Sally. Furthermore, he
responded to several questions about that evening simply by saying “I don’t know.” The court
believed that Bryan was pressured by his father to confess to a crime that he did not commit.
The court concluded that Michael Burns, the only person in the house who had consumed beer
and cigarettes—as well as the only person with facial hair—was the person who assaulted
Sally.

   The state courts denied relief on Burns’s claims of ineffective assistance of counsel and
insufficient evidence. The district court, finding the state courts’ decisions reasonable, denied
Burns’s federal petition for a writ of habeas corpus.

                                               II

   Burns’s petition is premised on two claims: ineffective assistance of counsel and insufficient
evidence. Burns argues that the state court’s application of Strickland v. Washington, 466 U.S.
668 (1984), was unreasonable and that the verdict “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
given Sally’s failure to make a positive identification of Burns and Bryan’s confession. See 28
U.S.C. § 2254(d)(1), (2).

                                Ineffective Assistance of Counsel

    Burns acknowledges that the Wisconsin courts correctly identified Strickland as the
appropriate legal test, but he argues that the courts unreasonably applied it to his case. To
prevail on this claim, Burns must show that the state court’s application of Strickland was not
merely erroneous, but was objectively unreasonable. See Malone v. Walls, 538 F.3d 744, 758 (7th
Cir. 2008). An unreasonable application means “something like lying well outside the
boundaries of permissible differences of opinion.” Sturgeon v. Chandler, 552 F.3d 604, 612 (7th
No. 07-3820                                                                             Page 4

Cir. 2009) (quoting Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002)).

    Under Strickland, a defendant must show that counsel’s performance fell below an objective
standard of reasonableness and that the deficient performance prejudiced his defense. Harris
v. Cotton, 365 F.3d 552, 555 (7th Cir. 2004). Burns argues that counsel committed three errors.
According to Burns, counsel did not investigate an alleged romantic relationship between Sally
and Bryan, did not adequately cross-examine Sally, and did not properly advise Burns about
the risks of waiving his right to a jury trial.

    Burns first attacked counsel’s investigation in his motion for a new trial, which was based,
among other things, on the discovery of new evidence: a letter written by Sally to Bryan after
the trial that Burns believes shows a romantic relationship between Sally and Bryan. Burns
contended that if his counsel had investigated the relationship between Sally and Bryan, then
counsel could more effectively have explained why Bryan made sexual contact with Sally,
making his in-court confession believable.

    The trial court considered Burns’s argument, but concluded that Burns had presented no
evidence that a romantic relationship actually existed between Sally and Bryan. The court held
that Burns’s only proffered evidence – the letter – did not even imply a romantic relationship;
rather it suggested a long-term friendship. The Wisconsin Court of Appeals adopted this
conclusion, and the federal district court concluded that the decision of the state courts was
reasonable.

    We agree with the district court’s assessment. The state courts reasonably concluded that
counsel cannot be faulted for failing to investigate this alleged romantic relationship. First,
counsel interviewed Bryan, who despite confessing that he assaulted Sally, did not suggest
that there was a romantic relationship. Second, Burns himself never suggested to counsel that
there was a romantic relationship between Bryan and Sally. See Strickland, 466 U.S. at 691 (“The
reasonableness of counsel’s actions may be determined or substantially influenced by the
defendant’s own statements or actions.”). Since counsel’s performance is evaluated based on
the information known at the time of the decision not to investigate, Brown v. Sternes, 304 F.3d
677, 692 (7th Cir. 2002), counsel cannot be faulted if he was never told there was a romantic
relationship. Moreover, any supposed failure to investigate could not have prejudiced Burns
because even now there is no evidence apart from the inadequate letter that such a relationship
actually existed. See Strickland, 466 U.S. at 691.

    Burns next argues that counsel failed effectively to cross-examine the state’s only witness,
Sally. At trial, Sally testified about the assault, and Burns’s counsel did cross-examine her.
Burns suggests, however, that there were several inconsistencies between Sally’s testimony at
trial and her report to police two days after the assault. Counsel’s failure to highlight these
discrepancies, in Burns’s view, amounts to ineffective assistance.
No. 07-3820                                                                                 Page 5

     Failure to cross-examine a crucial government witness can be a ground for finding
ineffective assistance. See Higgins v. Renico, 470 F.3d 624, 633 (6th Cir. 2006). But deciding
which questions to ask a witness is a matter of trial strategy. United States v. Jackson, 546 F.3d
801, 814 (7th Cir. 2008). Burns faults his trial counsel for failing to exploit Sally’s uncertainty
at trial about whether she told police where her attacker was positioned during the assault (she
did) or whether he had chapped lips. But Sally’s testimony overall closely tracked her initial
report to police: she consistently maintained that her assailant kissed her on the mouth, had
facial hair, and smelled of beer and cigarettes. The state courts reasonably concluded that
clarification of these minor points would not have undermined the basic consistency of her
testimony, especially because it was strategically sound not to badger a sympathetic victim.
See Bergmann v. McCaughtry, 65 F.3d 1372, 1379-80 (7th Cir. 1995).

    A marginally closer call is counsel’s failure to question Sally about why the police report
does not mention that her assailant kissed her on the forehead. The trial judge found the
forehead kiss significant – he remarked that a forehead kiss is natural for a parent toward a
child. The fact that Sally remembered the forehead kiss “vividly,” and Bryan omitted it from
his account, helped the judge to conclude that it was Michael – not Bryan – who was the
assailant. But, while that fact was significant, it was not controlling. The judge ultimately
concluded that “[t]he beer breath, cigarette breath, mustache, kiss on the lips, and the kiss on
the forehead was the signature of one person in that house and one person alone and that was
the defendant.” Even had counsel challenged Sally’s failure to reveal the forehead kiss to
police, it was reasonable for the state courts to conclude that the outcome of the trial would not
have been different, considering the other credited testimony of Sally.

   Finally, Burns challenges counsel’s failure to apprise him fully of the consequences of
waiving a jury trial, especially in light of his successful motion in limine to exclude evidence
that his daughters previously had made similar accusations against Burns. Burns contends that
had he known that the judge who knew about the excluded evidence would also decide his
case, he would have opted for a jury trial.

   But Burns did know that the judge who decided the motion to exclude would decide his
case. Burns was present when the judge ruled on the motion in limine, and so he knew which
judge had heard the evidence regarding his daughter’s accusations. When waiving a jury, the
same judge asked Burns (among other things) if he understood that “I would listen to all the
witnesses, I would evaluate their testimony and all the evidence, I would apply the law to the
evidence, and I would decide whether the state has met its burden of proof beyond a
reasonable doubt or not.” Burns answered that he understood.

   Moreover, the decision to opt for a bench trial rather than a jury trial can be a reasonable
choice of strategy, Milone v. Camp, 22 F.3d 693, 705 (7th Cir. 1994), especially in a case like this
where a judge may be better able to evaluate the facts objectively than a jury unaccustomed
No. 07-3820                                                                                 Page 6

to hearing about the sexual assault of a child. Strickland requires great judicial deference to
strategic decisions such as whether to waive trial by jury. Green v. Lynaugh, 868 F.2d 176, 178
(5th Cir. 1989). Even if the decision was ill-advised, it was not so unreasonable that Burns was
denied the benefit of competent counsel. In any case, Burns cannot show that the judge’s
knowledge of the previous accusations against him prejudiced the outcome. The trial court
specifically stated that it “did not base its decision on the possibility that the defendant had
previously assaulted his daughters; it did not need to.” Consequently, neither part of the
Strickland test was satisfied.

                                    Sufficiency of the Evidence

    Burns also argues that the trial judge made an unreasonable determination of the facts. He
emphasizes the lack of a positive identification from the victim and Bryan’s confession. The
trial court rejected this argument, finding that Sally’s identification was sufficient and that
Bryan’s testimony was unbelievable. When announcing the judgment, the trial judge
acknowledged that Sally’s identification was based on circumstantial evidence and that
ultimately the case would be decided on whether the court believed Sally or Bryan and Burns.
The court credited Sally’s testimony because it was consistent with earlier statements. The
court made that decision despite the lack of visual identification, but it was impressed that
Sally was composed and not vindictive while testifying. The court discounted Bryan’s account
because it lacked detail, was tentative, and because Bryan repeatedly looked to his father for
approval. Additionally, the court found that Bryan did not smoke, drink beer, or have a
mustache, while the assailant did. Someone petitioning for habeas corpus relief is entitled to
prevail “if it is found that upon the record evidence adduced at the trial no rational trier of fact
could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307,
324 (1979); Trejo v. Hulick, 380 F.3d 1031, 1031-32 (7th Cir. 2004).

   When evaluating a habeas corpus petition, this court generally is required to accept
credibility determinations by the initial factfinder, who is in the best position to make those
determinations. Murrell v. Frank, 332 F.3d 1102, 1112 (7th Cir. 2003). This case, as the trial judge
correctly concluded, was ultimately a credibility contest between two witnesses. There is no
dispute that a sexual assault occurred at the time and place the victim described. The only
question for the factfinder was whether the victim’s testimony that Burns committed the
assault should be credited or whether Bryan’s confession should be accepted. Given the strong
deference accorded the factfinder, and the consistent testimony of Sally, it is impossible to
conclude that the trial court’s acceptance of Sally’s story was unreasonable.
No. 07-3820                                                                         Page 7

                                            III

   We conclude that Burns has not met his stringent burden of showing either that the state
courts applied Strickland unreasonably or that their factual determinations were without
support. We therefore A FFIRM the judgment of the district court denying Burns’s petition
under 28 U.S.C. § 2254.
