                        NONPRECEDENTIAL DISPOSITION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 July 8, 2020
                                  Decided July 13, 2020

                                          Before

                             DIANE P. WOOD, Circuit Judge

                             AMY C. BARRETT, Circuit Judge

                             AMY J. ST. EVE, Circuit Judge



No. 20‐1249

LUIS VIRAMONTES,                               Appeal from the United States District
      Petitioner‐Appellee,                     Court for the Northern District of Illinois,
                                               Eastern Division.

       v.                                      No. 1:18‐cv‐04929

CHRISTINE BRANNON,                             Mary M. Rowland,
     Respondent‐Appellant.                     Judge.

                                        ORDER

       An Illinois jury found Luis Viramontes guilty of the first‐degree murder of his
wife, Sandra. In a state postconviction petition, Viramontes asserted that his trial
counsel was ineffective for failing to call a medical expert to testify that Viramontes did
not use “substantial force” when he beat Sandra shortly before her death and that
something else (such as cocaine toxicity) caused her death. The state appellate court
concluded that counsel’s decision to confront the medical evidence by cross‐examining
the State’s witnesses was not unreasonable or prejudicial. The district court denied
Viramontes’s petition for a writ of habeas corpus, and we affirm.
No. 20‐1249                                                                          Page 2

                                      I. Background

       A.     Criminal Trial and Direct Appeal

       Viramontes testified that on January 9, 2010, he and Sandra celebrated his
birthday with family and friends while Sandra’s mother watched their two children. On
the drive home, Viramontes noticed that Sandra received a text message, which he
thought was odd, given the late hour. So, after he carried Sandra inside (she had fallen
asleep), he returned to the car and checked her phone. There, he discovered sexually
explicit text messages that Sandra had exchanged with “Denise.” Sandra had asked to
meet with “Denise,” and, after “Denise” requested pictures, Sandra replied with images
of herself naked, to which “Denise” replied, “You’re making me hard.”

      Viramontes testified that seeing the messages made him feel “like [his] whole life
was turned upside down.” He attempted to call “Denise” but received no answer, so he
went inside to confront Sandra. He found her in the bathroom, snorting cocaine. While
arguing about the drugs and the texts, Sandra revealed she was having an affair with
“Denise,” a male former coworker.

       Viramontes testified that he was “angry” and “devastated,” so he hit Sandra’s
face with his open hand. After Sandra locked herself in the bedroom, Viramontes
retrieved spray paint and scrawled explicit messages about the affair on the living room
walls. He then sat at the kitchen table and cried.

       When Sandra saw the spray‐painted walls, she ran at Viramontes, screaming and
swinging. She hit his chest, so he grabbed her by the shoulders, threw her against a
door, and then tossed her over the table. Viramontes told Sandra that he was leaving,
but she ran at him again, so he threw her against the refrigerator and onto the floor. As
he walked toward the door, Sandra threw her wedding ring at him and said that she
did not want to be married. She also revealed that when Viramontes had driven her to a
“cancer‐screening” appointment months earlier, she actually had obtained an abortion.

       At that point, Viramontes testified, he “lost it” and “couldn’t control” himself.
He threw Sandra against the refrigerator again, causing her to hit her head “hard.” He
then threw her onto the floor, where she hit her head again. While she was lying in the
fetal position, trying to cover herself, Viramontes hit her face with his hands four to five
times. Viramontes maintained that, throughout this, he was not trying to kill Sandra. So
even though he was close to potential weapons, like knives, pots, and pans, he did not
use them.
No. 20‐1249                                                                       Page 3

       Eventually, Viramontes went outside, called his brother, Fernando, and asked
him to come over. Back inside, Viramontes testified, he found Sandra in bed. He asked
if she was all right, and she responded, “Babe, I’m sorry.” He replied that he was sorry
too. She asked him to lie next her, which he did, and she hugged him and told him that
she loved him before falling asleep.

       Fernando testified that when he arrived at the house, he saw the spray‐painted
walls and Sandra lying in bed. She did not look hurt, he said. When Fernando asked
what had happened, Viramontes replied, “I trusted her,” and confessed that he had hit
Sandra. Fernando suggested that Viramontes lie down with Sandra and comfort her.

       Early the next morning, Viramontes woke Fernando and told him that Sandra
was not breathing properly. Fernando ran to the bedroom and discovered Sandra
breathing heavily while mumbling and moaning. He now noticed redness on her face,
shoulders, and chest, and he saw blood on a nearby mirror and the bed sheet.
Viramontes instructed Fernando to call an ambulance, which he did. According to
Fernando, Viramontes was “very nervous, shocked, [and] confused,” so Fernando
instructed him to leave.

       At the hospital, Sandra was placed on life support, and she remained in a coma
until she died three weeks later. Viramontes turned himself in to the police a few days
after Sandra was admitted to the hospital.

        At trial, the State presented two medical witnesses, Dr. David McElmeel, who
treated Sandra in the hospital, and Dr. Michel Humilier, who performed Sandra’s
autopsy. Dr. McElmeel testified that when Sandra was admitted, she had extensive
bruising on her body and face, decreased consciousness, and severe edema (swelling) in
her brain. He found bilateral subdural hematomas (bleeding on the surface of both sides
of her brain), which he concluded were caused by blunt force trauma to her head. She
also had lacerations on the bridge of her nose, forehead, and right ankle. Dr. McElmeel
concluded that the use of “severe force” had caused Sandra’s injuries. Dr. Humilier
agreed, concluding that Sandra’s cause of death was bronchopneumonia due to blunt
force trauma and ruling her death a homicide.

       During cross‐examination, Dr. McElmeel and Dr. Humilier each acknowledged
that Sandra’s toxicology screen was positive for a high level of cocaine, but both opined
that cocaine did not cause her death. Nonetheless, Dr. McElmeel noted that Sandra had
high blood pressure when she was admitted, which could have been related to cocaine
toxicity or her head injury. And Dr. Humilier confirmed that cocaine could cause brain
No. 20‐1249                                                                          Page 4

swelling (like Sandra’s). Defense counsel further obtained concessions from both
doctors that Sandra had no trauma to her neck, no internal injuries to any organ other
than her brain, and no broken bones or fractures. And Dr. Humilier conceded that he
could not determine whether bruising on Sandra’s body (unlike the bruising on her face
and head) resulted from trauma or merely hospital staff turning her while she was in a
coma. Neither doctor testified that Sandra had any history of cancer.

        At the end of the trial, defense counsel requested jury instructions for four lesser‐
included offenses: second‐degree murder (based on three theories of provocation),
involuntary manslaughter, domestic battery, and aggravated battery. The court refused
them all and instructed the jury on first‐degree murder only, i.e., that it should find
Viramontes guilty if he performed acts that caused Sandra’s death and he intended to
kill her or cause her great bodily harm, or he knew that his acts would cause her death
or would have a “strong possibility” of causing her death or great bodily harm.

       While deliberating, the jurors stated that they were evenly split. The court told
them to continue deliberating, and the jury eventually returned a unanimous verdict
finding Viramontes guilty.

       After the trial judge sentenced him to 25 years in prison, Viramontes (still
represented by trial counsel) appealed on multiple grounds. He argued that the jury
should have been instructed on involuntary manslaughter because he did not intend to
cause Sandra’s death, as shown by the fact that he did not use any weapons or strangle
her. The appellate court rejected Viramontes’s arguments, affirming the conviction and
sentence. People v. Viramontes, 20 N.E.3d 25, 30 (Ill. App. Ct. 2014). It determined that an
involuntary manslaughter instruction was not warranted because “the nature and
extent of Sandra’s injuries” and her relative defenselessness (Viramontes weighed 30
pounds more than Sandra’s 104 and admitted that he was “stronger”) showed that
Viramontes’s actions were not merely reckless. Id. at 37–38. The Illinois Supreme Court
denied Viramontes’s petition for review.

       B.     Postconviction Proceedings

       In a state postconviction petition, Viramontes argued, in relevant part, that he
was denied the effective assistance of counsel because his trial attorney failed to
investigate or call an expert witness to rebut the State’s medical evidence. Viramontes
attached an affidavit from Dr. Larry Blum, a board‐certified forensic pathologist, who
concluded that Sandra’s injuries did not support an inference that Viramontes intended
to cause her death. As to Sandra’s brain injuries, Dr. Blum averred that, contrary to
No. 20‐1249                                                                         Page 5

Dr. Humilier’s testimony, it was “not necessarily true” that they were caused by
“relatively significant force.” First, he asserted, brain swelling “can be associated with
even mild brain injury.” And “a relatively minor insult to the brain” can cause swelling,
as can cocaine use. Second, subdural hematomas like Sandra’s “can occur as the result
of a major or minor insult to the head and can be inflicted either intentionally or
accidentally.” Finally, two facts—that Sandra “was not immediately unresponsive”
(according to Viramontes) and that she did not suffer “any fractures, including facial
and skull fractures, scalp lacerations, or cerebral cortical contusions”—ʺstrongly
suggest[ed]” that Sandra’s brain injury, “although clinically significant, could have been
caused by something less than ‘significant’ blunt force.” As to Sandra’s bruises,
Dr. Blum opined that they “did not contribute to her death in any significant way.”
And, he stated, it is “difficult to assess the amount of force used” to inflict bruises
because bruising varies based on multiple factors. For instance, according to
Viramontes’s testimony, Sandra had cancer, and that disease may have increased her
bruising.

        Applying the two‐prong test of Strickland v. Washington, 466 U.S. 668 (1984), the
postconviction trial court concluded that Viramontes’s petition was without merit and,
on appeal, the Illinois Appellate Court, First District, affirmed. People v. Viramontes, 87
N.E.3d 364, 368 (Ill. App. Ct. 2017). The appellate court concluded that trial counsel’s
performance was not objectively deficient because counsel elicited valuable evidence
from the State’s witnesses on cross‐examination. Id. at 376–77. Further, Viramontes was
not prejudiced by trial counsel’s failure to call an expert; Dr. Blum could not
“unequivocally” testify that Viramontes “did not commit the crime” nor overcome the
“overwhelming evidence against [Viramontes], including his own admissions.” Id.
at 377. And the trial court’s refusal of an involuntary manslaughter instruction was not
based solely on a lack of medical evidence; rather, the court also relied on the size
disparity between Sandra and Viramontes, which Dr. Blum could not negate, so his
opinion would not have “changed the trial court’s mind.” Id. The Illinois Supreme
Court denied Viramontes’s request to review his claims. People v. Viramontes, No. 122856
(Ill. 2018).

        Viramontes then filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254, claiming only that trial counsel was ineffective for failing to call an expert to
testify about the degree of force Viramontes used. The district court ruled that the state
court’s decision on this claim “was neither contrary to nor an unreasonable application
of Supreme Court precedent.” Although the district court disagreed that the evidence
against Viramontes was “overwhelming,” it nonetheless found the state court’s
No. 20‐1249                                                                           Page 6

determination “defensible.” But it granted a certificate of appealability on “the question
of the state court’s reasonable application of Strickland.”

                                        II. Analysis

       We review de novo a district court’s denial of a petition for a writ of habeas
corpus, but our inquiry is narrow. Schmidt v. Foster, 911 F.3d 469, 476 (7th Cir. 2018) (en
banc), cert. denied, 140 S. Ct. 96 (2019). Under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), a federal court, reviewing the last state court decision to
address the petitioner’s claims on the merits, cannot issue a writ on a claim that the
state court rejected unless that decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law” or “based on an unreasonable
determination of the facts.” 28 U.S.C. § 2254(d)(1)‐(2); Hoglund v. Neal, 959 F.3d 819, 832
(7th Cir. 2020).

        As a threshold issue, one of the arguments Viramontes raises is not properly
before us. Viramontes claims that the postconviction appellate court made “an
unreasonable determination of fact” when it stated, erroneously, that defense counsel
cross‐examined the State’s witnesses about the effects that cancer may have had on
Sandra’s injuries. But we will decide the merits of “only those issues included in the
certificate of appealability.” Peterson v. Douma, 751 F.3d 524, 529 (7th Cir. 2014) (listing
cases). The district court did not grant a certificate of appealability on the state court’s
determination of fact, and Viramontes has not asked us to expand the certificate, see id.
at 530 (usually counsel must ask for an expanded certificate before briefing additional
issues).1 Although some “special circumstances” justify departing from this practice—
such as when the issue was not earlier apparent, the petitioner is proceeding pro se, or
consideration now will prevent successive appeals—none exist here. Id.

       Turning to the issue on which this appeal was certified, Viramontes claims that
the state postconviction court unreasonably applied federal law when it rejected his

       1 Further, Sandra’s “cancer” appears to be a red herring. The only evidence that
Sandra had cancer is Viramontes’s testimony; he testified that Sandra had suffered from
Hodgkin’s lymphoma since high school and she went to approximately three cancer‐
related doctor’s appointments each year of their sixteen‐year relationship. Dr. Blum’s
opinion is based on that testimony, not medical records. Thus, even if this issue were
properly before us, we would conclude that counsel’s failure to pursue the subject was
not deficient or prejudicial because counsel may have reasonably forgone probing the
issue for lack of proper foundation.
No. 20‐1249                                                                          Page 7

claim that his trial counsel was constitutionally defective. To prevail on that claim,
Viramontes had to show (1) that counsel’s decision not to call an expert was so deficient
that it fell below the objective standard of reasonableness and (2) that he was prejudiced
by it. See Strickland, 466 U.S. at 687. This is a high bar, made higher in this court because
of the deference required by AEDPA. See Ellison v. Acevedo, 593 F.3d 625, 633 (7th Cir.
2010). It is not enough for Viramontes to show that the state court’s application of
Strickland was incorrect; he must show that the decision “was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fair‐minded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).

        Viramontes argues that trial counsel was ineffective for two reasons. First,
counsel failed to call a medical expert to rebut the State’s evidence about the degree of
force he used to cause Sandra’s injuries and her cause of death. Second, based on a
misapprehension of the law, counsel elicited harmful testimony from Viramontes in the
futile pursuit of a second‐degree‐murder instruction based on the premise that
Viramontes was provoked by Sandra’s alleged extramarital affair and abortion.

        Our discussion of the latter argument can be brief. It is unsurprising that, as
Viramontes asserts, the state postconviction court overlooked it: at no level of state
postconviction review did Viramontes argue that trial counsel’s pursuit of the
provocation theory was unreasonable. In most cases, a petitioner for a federal writ must
first give state courts a fair opportunity to correct the alleged problem by presenting
them with the operative facts and the controlling legal principles for each claim.
See 28 U.S.C. § 2254(b)(1)(A); Baldwin v. Reese, 541 U.S. 27, 33 (2004). Here, however, the
State does not argue that Viramontes is barred from pursuing this theory, and
procedural default is an affirmative defense. See Perruquet v. Briley, 390 F.3d 505, 515
(7th Cir. 2004). We can raise that bar ourselves, even when it is forfeited, under certain
circumstances, see id. at 518–19, but we do not need to decide whether it would be
appropriate to do so in this case. Even under de novo review (we have no state decision
to defer to), Viramontes’s argument fails.

       The record demonstrates that counsel understood the law of provocation and
made a strategic decision to argue for an extension of it. In his petition for leave to
appeal to the Illinois Supreme Court, counsel argued that “with constant proliferation
of technological devices being used to maintain relationships,” the court should expand
provocation to include “witnessing” of adultery via discovery of explicit electronic
messages. This theory was not legally foreclosed, as Viramontes claims; the state
appellate court refused to extend the doctrine based on a scholarly critique of it, not
No. 20‐1249                                                                          Page 8

precedent. Viramontes, 20 N.E.3d at 36 (citing Carolyn B. Ramsey, Provoking Change:
Comparative Insights on Feminist Homicide Law Reform, 100 J. CRIM. L. & CRIMINOLOGY 33
(2010), for the proposition that “treating sexual jealousy” as a justification for reduced
murder charges “is a throwback to an earlier era when courts condoned violence in the
name of infidelity and ... reflects both gender and marriage bias”). Even though he was
unsuccessful, our review of counsel’s plausible strategic choices is “highly deferential.”
Strickland, 466 U.S. at 689. We will not second‐guess counsel’s decision to pursue this
novel theory among the other theories of mitigation that he raised.

        Turning to Viramontes’s theory that trial counsel was ineffective for failing to
call a medical expert, on the first Strickland factor the state appellate court determined
that counsel’s performance was not deficient because he obtained testimony from the
State’s witnesses on most of the issues that Dr. Blum raised and used those concessions
to argue that Sandra was not severely beaten, that Viramontes did not intend to cause
her death, and that cocaine toxicity actually caused her death. Viramontes contends that
the state court unreasonably applied the deficiency prong because counsel had a duty to
present expert testimony to counter the State’s witnesses, not merely his own questions
and arguments. See Hinton v. Alabama, 571 U.S. 263, 273 (2014).

       Viramontes’s argument that only one strategy was reasonable is untenable. “Rare
are the situations” in which counsel is “limited to any one technique or approach.”
Richter, 562 U.S. at 106. Failing to consult or rely on experts can be deficient
performance, but often cross‐examination will be “sufficient to expose defects in an
expert’s presentation.” Id. at 111. Thus, in Richter, the Supreme Court agreed that it was
reasonable to find that counsel was not deficient for failing to call a rebuttal expert
when he “conducted a skillful cross‐examination” during which he “elicited
concessions” from the State’s witnesses and drew “attention to weaknesses in their
conclusions.” Id. Similarly, here, the state court determined that counsel’s cross‐
examination was sufficient because he obtained numerous concessions from the State’s
witnesses and highlighted that they had failed to consider the influence of Sandra’s
extreme cocaine toxicity on her death. Thus, the state court’s determination that
counsel’s performance was not deficient was reasonable. See id. at 106 (state courts have
“wide latitude” in this determination).

       Viramontes presses that the state court’s decision is contrary to Thomas
v. Clements, 789 F.3d 760, 763 (7th Cir. 2015), in which we found counsel’s failure to call
a rebuttal medical expert to testify about the amount of force necessary to cause a
victim’s death was deficient performance. Of course, “clearly established Federal law”
No. 20‐1249                                                                          Page 9

for the purposes of habeas review includes only the holdings of the United States
Supreme Court, so whether the state court’s decision was contrary to Thomas
specifically is of no moment. See 28 U.S.C. § 2254(d); White v. Woodall, 542 U.S. 415, 419
(2014). Thomas is still helpful here, but not in the way Viramontes suggests. As the State
points out, the review in Thomas was de novo because the last reasoned state court
decision did not address counsel’s performance. 789 F.3d at 768. So, although we
determined that counsel’s cross‐examination did not make up for the lack of a rebuttal
expert, we noted that, “[w]ere the state court’s determination reviewed under AEDPA
deference, we might come out a different way.” Id. In this way, we acknowledged that a
state court, looking at a similar set of facts, could reasonably come to a different
conclusion. And that is what happened here.

        Further, Thomas was a closer case. There, it was “undisputed that counsel did not
reach out to or even consider talking to” an expert. Id. But here, the last reasoned state
court decision rejected Viramontes’s claim that defense counsel failed to investigate
whether to call an expert witness, determining that counsel’s cross‐examination of the
State’s witnesses was born from pretrial investigation. Viramontes does not challenge
that determination, and “strategic choices made after thorough investigation” are
“virtually unchallengeable.” Hinton, 571 U.S. at 274 (quoting Strickland, 466 U.S. at 690–
91). Thus, the state court did not unreasonably determine that, after investigation,
counsel made a reasonable, strategic choice to refute the State’s medical evidence via
cross‐examination instead of through an expert.

        It was also reasonable for the state court to conclude that the absence of an expert
was not prejudicial. Prejudice in this context means “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. The state postconviction court concluded
that, even if trial counsel had produced a rebuttal medical expert, there was not a
reasonable probability of a different result because of the “overwhelming” evidence
against Viramontes.

       Viramontes protests that the evidence was not “overwhelming” as a matter of
law because the jury was initially split, and so the state court’s determination that he
was not prejudiced was unreasonable. But a lack of overwhelming evidence does not
mean that any error was prejudicial; it must be “reasonably likely that the result of the
trial would have been different.” Richter, 562 U.S. at 111, 113 (emphasis added). This
proper standard governed the state court’s analysis.
No. 20‐1249                                                                       Page 10

        And the state court’s determination under that standard was reasonable.
Although Dr. Blum averred that Sandra’s injuries may have been exacerbated by her
cocaine use and (purported) cancer and could have been “the result of a major or minor
insult” and “inflicted either intentionally or accidentally,” this establishes nothing more
than a “theoretical possibility” that Viramontes did not intend to cause Sandra’s death.
See id. at 112. The jury was presented with that same possibility and rejected it. Counsel
elicited testimony that Sandra had no broken bones or injuries to any internal organ
other than her brain. And Viramontes testified that, because he did not intend to kill
Sandra, he did not strangle her or use available weapons. But there was substantial
contrary evidence, including the disparity between Viramontes’s and Sandra’s sizes and
Viramontes’s testimony “that he threw Sandra against a door, over the table, and into
the refrigerator, causing her to hit head ... ‘really hard.’” And there was strong evidence
that Viramontes was enraged when he assaulted Sandra: he had spray‐painted the walls
of their home with explicit messages about her affair. Viramontes provides no reason to
believe that a medical expert could have bolstered his defense enough to create a
reasonable possibility of an acquittal in spite of the other evidence against him. Thus, it
was not unreasonable for the state court to conclude that the evidence pointing to guilt
eclipsed any potentially beneficial effect of a rebuttal medical expert. See id. at 113.

       Viramontes insists that Dr. Blum’s testimony would have supplied at least “some
evidence”—all that is needed under state law—to support an involuntary manslaughter
instruction. See People v. McDonald, 77 N.E.3d 26, 34 (Ill. 2016). And because the jury was
given only a first‐degree‐murder instruction, it “resolve[d] its doubts in favor of
conviction” because Viramontes was “plainly guilty of some offense.” See Keeble
v. United States, 412 U.S. 205, 212–13 (1973). The postconviction court reasonably
concluded that Dr. Blum would not have convinced the trial court to grant an
involuntary manslaughter instruction, however. The trial court’s determination that
there was no factual basis for that instruction was not due solely to the lack of medical
evidence; the trial court reasoned that Viramontes did not act recklessly because Sandra
was defenseless given her relative size and strength. So, the postconviction court
reasonably concluded, Viramontes was not prejudiced by his counsel’s failure to
produce more medical evidence because it would not have negated the evidence that
made an involuntary manslaughter instruction untenable.

      Because, on the claim properly before this court, the state court reasonably
concluded that the performance of Viramontes’s counsel was not deficient or
prejudicial, we AFFIRM.
