Tony P. Rogers v. JASON WELLS , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2903
T ONY P. R OGERS,
Petitioner-Appellant,
v.
J ASON WELLS , Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:17-CV-00446 — William C. Griesbach, Judge.
____________________
A RGUED D ECEMBER 5, 2023 — D ECIDED MARCH 22, 2024
____________________
Before HAMILTON, BRENNAN, and ST . EVE , Circuit Judges.
BRENNAN, Circuit Judge. The State of Wisconsin prosecuted
Tony Rogers for repeatedly sexually assaulting his daughter,
DAR, relying primarily on evidence and testimony from her.
A jury found Rogers guilty, and he appealed his convictions.
He argued that his trial counsel was ineffective for failing to
move for in camera review of DAR’s medical records. The
Wisconsin Court of Appeals rejected Rogers’s claim, and the
Supreme Court of Wisconsin denied review.

-- 1 of 17 --

2 No. 17-2903
On federal habeas review, Rogers asked the district court
to find the state court decision contrary to, or an unreasonable
application of, clearly established federal law. The district
court declined. Given the record here and the applicable
standard of review, we affirm the district court.
I
Rogers is a state prisoner serving a lengthy sentence for
repeatedly sexually assaulting his biological daughter, DAR,
between 2005 and 2010. DAR lived mostly with her mother
but sometimes had overnight visits with Rogers. When DAR
visited Rogers, she stayed at a home he shared with his
mother and grandfather. DAR stopped visiting Rogers in
2010.
In 2012, DAR gave her mother a letter accusing Rogers of
molesting her during her prior visits and expressing how that
trauma was affecting her. In the letter, she says she:
• “need[s] mental health”;
• is “on the verge of committing suicide”;
• “hate[s] having too much responsibility”;
• feels “like a single parent, trying to juggle school,
little people, and other responsibilities”;
• “decided to tell [her mom] now, [because she] ha[s]
gone to school crying about all the stress almost
every day of the school year”;
• is “always hearing voices and thinking negative
thoughts and feel no one loves me”;
• thinks “about running away, committing suicide,
and first-degree murder … .”

-- 2 of 17 --

No. 17-2903 3
Response to Petition for Writ of Habeas Corpus, Ex. 14 at 34–
35, ECF 10-14.
DAR’s mother reported the accusations of sexual abuse to
the police. Later, Rogers was charged in Wisconsin state court
with four counts of first-degree sexual assault of a child and
one count of incest. Rogers pleaded not guilty and went to
trial.
The State moved in limine to prevent defense counsel
from offering evidence that DAR was diagnosed with and re-
ceived inpatient treatment for a mental illness. Rogers’s attor-
ney opposed the motion, contending his investigator learned
that DAR was diagnosed with schizophrenia. The State re-
sponded that this contention was unsupported and that
DAR’s mother said DAR was diagnosed with depression. The
prosecutor argued:
without medical records and without defense counsel
bringing forth some reason why they should be able to
cross-examine the victim about her actual mental
health history and diagnosis, [DAR’s hospitalization,
treatment, and diagnosis are not] relevant [and are]
overly prejudicial.
Response to Petition for Writ of Habeas Corpus, Ex. 10 at 7,
ECF 10-10.
The trial court granted the State’s motion. Because neither
party intended to call a psychologist or other expert witness
qualified to testify on DAR’s mental health and treatment,
there was no foundation for such testimony. But the court
ruled that evidence of DAR hearing voices and other infor-
mation in the letter was admissible.

-- 3 of 17 --

4 No. 17-2903
At the November 2013 trial, among the witnesses who tes-
tified were DAR, her mother, her friend, and a police officer.
DAR read her letter into the record, and it was admitted into
evidence. Rogers’s attorney posed questions about DAR’s
mental health and proclivity to lie. He focused on the details
in the letter, including how overwhelmed she was with
housework and other responsibilities. He asked DAR about
“hearing voices,” her “negative thoughts,” her acting out, her
lying, and her suicidal thoughts.
Following trial, Rogers was convicted on all counts. The
court sentenced him to 25 years in prison followed by 15 years
of extended supervision.
After sentencing, Rogers sought postconviction relief in
state trial court, arguing that his trial counsel was ineffective
for failing to obtain DAR’s medical records or for not at least
asking the court to review them. Such a motion, at the time
governed by State v. Green, 646 N.W.2d 298 (Wis. Ct. App.
1993), and State v. Shiffra, 499 N.W.2d 719 (Wis. Ct. App. 1993),
seeks in camera review of medical records. To prevail on that
motion, a defendant must set forth a “specific factual basis
demonstrating a reasonable likelihood that the records
[sought] contain relevant information necessary to a determi-
nation of guilt or innocence and is not merely cumulative to
other evidence available to the defendant.” Green, 646 N.W.2d
at 310. The state trial court denied relief, ruling that Rogers
failed, at trial and in post-conviction motions practice, to meet
his burden for in camera review of DAR’s medical records,
and thus that his trial counsel was not ineffective.
Rogers appealed to the Wisconsin Court of Appeals,
which rejected his claims and affirmed the judgment. That
court ruled Rogers had not shown that his trial counsel

-- 4 of 17 --

No. 17-2903 5
performed deficiently or that he suffered any prejudice under
Strickland v. Washington, 466 U.S. 668 (1984). Because Rogers
could not make the preliminary showing of materiality under
Shiffra/Green to obtain DAR’s medical records, a motion for in
camera review would have been meritless, and Rogers’s
counsel was not ineffective for failing to file it. The appellate
court also noted that Rogers’s counsel asked to refer to DAR’s
mental health during trial, and that after a hearing, the trial
court permitted his counsel to question DAR about any mat-
ter in her letter. In addition, because Rogers’s claims were
without merit and they would not have affected the trial out-
come, the Wisconsin Court of Appeals held that he was not
prejudiced by the lack of a motion. The Supreme Court of
Wisconsin denied Rogers’s petition for review.
Rogers then petitioned for habeas relief under 28 U.S.C.
§ 2254, asserting that his state court conviction and sentence
were imposed in violation of the Constitution. Rogers argued
that his trial counsel was ineffective because he failed to
obtain DAR’s medical records or at least file a motion for in
camera review. The district court denied Rogers’s petition,
concluding that Wisconsin’s standard for Shiffra/Green mo-
tions did not contravene federal law (i.e., Pennsylvania v.
Ritchie, 480 U.S. 39 (1987)), and that the application by the
Wisconsin Court of Appeals of both Strickland and Ritchie to
Rogers’s case was not unreasonable. But the district court
granted Rogers a certificate of appealability, stating:
Reasonable jurists could debate whether counsel could
have met the initial burden under Ritchie to require the
trial court to perform such a review, and thus I con-
clude Rogers has made a substantial showing of the de-
nial of a constitutional right. 28 U.S.C. § 2253(c)(2).

-- 5 of 17 --

6 No. 17-2903
Decision and Order at 10–11, ECF 13. Rogers timely appealed.
II
At issue before us is whether the denial of relief in state
court “was contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by the
Supreme Court of the United States.” Antiterrorism and Ef-
fective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d)(1).
This standard is “difficult to meet.” Makiel v. Butler, 782 F.3d
882, 896 (7th Cir. 2015) (internal quotation marks omitted).
“Section 2254(d) reflects the view that habeas corpus is a
‘guard against extreme malfunctions in the state criminal jus-
tice systems,’ not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03
(2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)
(Stevens, J., concurring in judgment)). “AEDPA recognizes a
foundational principle of our federal system: State courts are
adequate forums for the vindication of federal rights.” Burt v.
Titlow, 571 U.S. 12, 15 (2013).
In habeas review, “[t]he pivotal question is whether the
state court’s application of [federal law] was unreasonable.”
Harrington, 562 U.S. at 101. Thus, “[f]or purposes of
§ 2254(d)(1), ‘an unreasonable application of federal law is dif-
ferent from an incorrect application of federal law.’” Id. (citing
Williams v. Taylor, 529 U.S. 362, 410 (2000)).
On a § 2254(d)(1) petition, we review the state court deci-
sion de novo to determine a legal question—whether the de-
cision is contrary to clearly established federal law. See Denny
v. Gudmanson, 252 F.3d 896, 900 (7th Cir. 2001); see also Morris
v. Bartow, 832 F.3d 705, 709 (7th Cir. 2016) (“We review de novo
the district court’s treatment of legal issues, and we review

-- 6 of 17 --

No. 17-2903 7
findings of fact for clear error.”). We consider the “last rea-
soned opinion on the claim[;]” here, the postconviction deci-
sion of the Wisconsin Court of Appeals. See, e.g., Woolley v.
Rednour, 702 F.3d 411, 421 (7th Cir. 2012).
Rogers argues that the Wisconsin Court of Appeals erred
by (1) unreasonably applying Strickland, and (2) unreasonably
applying Ritchie. Both claims relate to the state court’s holding
that Rogers failed under Shiffra/Green to show that he was en-
titled to in camera review of DAR’s medical records.
A
For Rogers’s ineffective assistance of counsel claim, “[t]he
federal courts as a whole engage in ‘doubly deferential’ re-
view” under AEDPA. Wilborn v. Jones, 964 F.3d 618, 620 (7th
Cir. 2020) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)). Habeas review gives “both the state court and the de-
fense attorney the benefit of the doubt.” Titlow, 571 U.S. at 13.
Even without this doubly deferential review, ineffective assis-
tance claims remain difficult to prove, as “counsel is strongly
presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
judgment.” Strickland, 466 U.S. at 690. Accordingly, for inef-
fective assistance claims there is a steep hill to climb, and un-
der § 2254(d), “[t]hat hill is even steeper.” Myers v. Neal, 975
F.3d 611, 620 (7th Cir. 2020); see Strickland, 466 U.S. at 689–90.
A defendant must show that his counsel rendered defi-
cient performance and that the deficiency prejudiced him.
Strickland, 466 U.S. at 688, 694. In other words, a defendant
must show that his counsel rendered objectively unreasona-
ble performance and that, but for counsel’s errors, the out-
come would have been different. Id.

-- 7 of 17 --

8 No. 17-2903
1. Adequate and independent state law ground
The state appellate court concluded that Rogers’s counsel
was not ineffective for failing to file a motion for in camera
review of DAR’s medical records under the Wisconsin
Shiffra/Green standard. For this reason, Wisconsin argues he is
not entitled to habeas relief. Because Strickland requires Rog-
ers to show a reasonable probability that he would have ob-
tained relief if his counsel had filed such a motion, the
Shiffra/Green inquiry underlies the Strickland analysis.
A federal court may not review federal claims in habeas if
they rest on a state-law argument that a state court has re-
jected. See, e.g., Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“We
have repeatedly held that a state court’s interpretation of state
law ... binds a federal court sitting in habeas corpus.”); Estelle
v. McGuire, 502 U.S. 62, 67–68 (1991) (“Today, we reemphasize
that it is not the province of a federal habeas court to reex-
amine state-court determinations on state-law questions.”);
Miller v. Zatecky, 820 F.3d 275, 277 (7th Cir. 2016) (“A federal
court cannot disagree with a state court’s resolution of an is-
sue of state law.”). Where the state court has ruled that trial
counsel was not ineffective because a state law argument
would have failed, that state law ruling is unassailable on ha-
beas, even if it is couched as an ineffective assistance of coun-
sel claim. Kimbrough v. Neal, 941 F.3d 879, 882 (7th Cir. 2019).
Wisconsin cites United States v. Hach, 162 F.3d 937 (7th Cir.
1998), for the proposition that this court has already held that
Shiffra/Green questions are questions of state law and there-
fore barred from habeas review. Wisconsin is incorrect. Rog-
ers correctly notes, “Hach merely rejected the notion that the

-- 8 of 17 --

No. 17-2903 9
U.S. Constitution compels access to medical records that ‘the
state is not in possession of’ because Wisconsin’s cases saying
so were based ‘on state law’ and ‘not the federal constitu-
tion.’” Reply Brief at 3 (citing Hach, 162 F.3d at 947 n.5).
Because we cannot rely on Hach for the proposition that
state court decisions on the Shiffra/Green standard are based
on state law, we must look to other decisions. This case shares
some similarities with Whyte v. Winkelski, 34 F.4th 617 (7th Cir.
2022), and Dietrich v. Smith, 701 F.3d 1192 (7th Cir. 2012), so
we review those cases.
In Whyte, the defendant in his habeas petition brought
several claims, including a Strickland claim for his attorney’s
failure to raise certain claims below. 34 F.4th at 622–26. The
defendant had not previously raised any of these claims,
which were thus barred under state and federal law. Id. Wis-
consin state precedent says, “ineffective assistance of postcon-
viction counsel may be a sufficient reason for failing to raise
an available claim in an earlier motion or on direct appeal.”
State v. Romero-Georgana, 849 N.W.2d 668, 678 (Wis. 2014). But
in State v. Allen, 682 N.W.2d 433 (Wis. 2004), the Supreme
Court of Wisconsin emphasized that “a postconviction mo-
tion for relief requires more than conclusory allegations.” 682
N.W.2d at 439.
The Wisconsin Court of Appeals held that Whyte’s claim
of ineffective assistance of postconviction counsel did not
constitute a “sufficient reason” to excuse the procedural de-
fault under State v. Escalona-Naranjo, 517 N.W.2d 157 (Wis.
1994), because Whyte failed to comply with Allen’s pleading
standard. Whyte, 34 F.4th at 625. On appeal before this court,
we concluded that the state appellate court decision was
based on an adequate and independent state law procedural

-- 9 of 17 --

10 No. 17-2903
ground—the standard in Allen—and thus not reviewable on
habeas. See id. at 627.
Rogers’s case is like Whyte because the Wisconsin Court of
Appeals decision at issue rested on a state law standard—
there Allen, and here Shiffra/Green. Rogers’s case is different
than Whyte, however, because in Whyte the failure to follow a
state procedural rule underpinned the state appellate court’s
decision. Here, the federal law of Ritchie, not a state law, un-
derlies the Shiffra/Green standard.
Rogers’s case is more like Dietrich, in which the defendant
sought in camera review of medical records. 701 F.3d at 1193.
There, the Wisconsin Court of Appeals relied on State v. Rob-
ertson, 661 N.W.2d 105 (Wis. Ct. App. 2003), to show that the
defendant had not met the showing for in camera review. Id.
at 1195. The court in Robertson held that a “defendant request-
ing confidential records during postconviction discovery
should be required to meet the preliminary Shiffra–Green bur-
den.” Robertson, 661 N.W.2d at 111. Although the court in Rob-
ertson did not cite Ritchie directly, this court held in Dietrich
that Robertson did apply Ritchie’s constitutional standards.
Dietrich, 701 F.3d at 1195. And in Dietrich this court reviewed
the Wisconsin Court of Appeals determination that the de-
fendant had not met the Wisconsin in camera review standard
because Ritchie was the basis for that standard. Id. at 1195–98.
Similarly, in Dietrich, this court reviewed a Wisconsin de-
cision on whether a defendant had met the Shiffra/Green
standard for in camera review. Granted, in Dietrich there was
no Strickland claim and the double deference of Strickland in
the habeas context was not present. Yet, the Shiffra/Green
standard for in camera review of privileged records does

-- 10 of 17 --

No. 17-2903 11
“apply [Ritchie’s] constitutional standards” and is thus subject
to habeas review. Dietrich, 701 F.3d at 1195.
Moreover, as Rogers points out, this court has reviewed
Wisconsin’s application of Shiffra/Green several times. See, e.g.,
Moseley v. Kemper, 860 F.3d 1020, 1025 (7th Cir. 2017); Dietrich,
701 F.3d at 1195–96; Davis v. Litscher, 290 F.3d 943, 946–48 (7th
Cir. 2002). Because we can review a Wisconsin state court de-
cision on Shiffra/Green questions, we address the merits of
Rogers’s claims.
2. Failure to investigate
Rogers argues that his counsel failed to investigate DAR’s
mental health history, a claim he raises for the first time in this
appeal.
To preserve a claim for federal habeas review, a state pris-
oner must fairly present the operative facts and legal princi-
ples controlling the claim through a full round of state court
review. Mulero v. Thompson, 668 F.3d 529, 536 (7th Cir. 2012);
Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010). This rule re-
quires that the factual and legal substance of the claim remain
essentially the same when the petitioner has exhausted his
state court remedies and moved on to federal court. Anderson
v. Benik, 471 F.3d 811, 814–15 (7th Cir. 2006). With ineffective-
assistance claims, we have held that a petitioner procedurally
defaults individual claimed deficiencies when he does not
fairly present them to the state courts, even if he presented an
ineffective assistance claim alleging other errors. See Mulero,
668 F.3d at 536.
Rogers did not raise his failure to investigate claim in any
state court or in the district court. Now, in his reply brief, Rog-
ers argues “that the [state] court[s’] analysis ‘fails to address

-- 11 of 17 --

12 No. 17-2903
the main issue’ because the ‘deficient performance’ in his case
‘lies not in the failure to obtain in camera review, but the fail-
ure to try.’” The “failure to try” that Rogers mentions, how-
ever, is a failure to try to file a Shiffra/Green motion, which was
raised previously, not to try to further investigate the claim,
which is the basis of his new, unexhausted failure to investi-
gate claim. So, Rogers waived this claim.
3. Core Strickland claim
Rogers argues his counsel was ineffective for failing to
make a Shiffra/Green motion. The Shiffra/Green standard, ap-
plicable throughout Rogers’s state court litigation, required:
a defendant to set forth, in good faith, a specific factual
basis demonstrating a reasonable likelihood that the
records contain relevant information necessary to a de-
termination of guilt or innocence … . [T]he infor-
mation will be “necessary to a determination of guilt
or innocence” if it “tends to create a reasonable doubt
that might not otherwise exist.”
Green, 646 N.W.2d at 310 (internal citation omitted).1 The
court in Green based that standard on Shiffra, which in turn
1 Last year in State v. Johnson, 990 N.W.2d 174, 198 (Wis. 2023), the
parties in that case asked the Wisconsin Supreme Court to overrule the
Shiffra/Green standard, which it did for three reasons:
First, Shiffra [wa]s unsound in principle because it incorrectly con-
cluded that Ritchie applied to privileged (not just confidential) rec-
ords not in the State’s possession and because it undermine[d] the
therapist-patient relationship. Second, the standard for obtaining
in camera review articulated in Shiffra and Green [wa]s unworka-
ble in practice. And third, Shiffra ha[d] been undermined by the
adoption of new statutory and constitutional provisions

-- 12 of 17 --

No. 17-2903 13
based that standard on Pennsylvania v. Ritchie, 480 U.S. 39
(1987). Green, 646 N.W.2d at 310.
In Ritchie, the Supreme Court held that for a defendant to
obtain in camera review of confidential records, “‘[h]e must
at least make some plausible showing of how [the records]
would have been both material and favorable to his defense.’”
Id. at 58 n.15 (quoting United States v. Valenzuela–Bernal, 458
U.S. 858, 867 (1982)). That standard addresses the due process
requirement that the government “turn over evidence in its
possession that is both favorable to the accused and material
to guilt or punishment.” Ritchie, 480 U.S. at 57; see California v.
Trombetta, 467 U.S. 479, 485 (1984); Brady v. Maryland, 373 U.S.
83, 87 (1963).2
protecting the rights of victims, and is now detrimental to coher-
ence in the law.
Id. at 182.
None of these reasons deviate from the standard for a defendant to
access confidential records set in Ritchie. Nor did Shiffra fail to comply with
federal constitutional protections. The only topic the Supreme Court of
Wisconsin said strayed from Ritchie was that Shiffra “incorrectly con-
cluded that Ritchie applied to privately held and statutorily privileged
health records.” Id.
In Johnson, the Supreme Court of Wisconsin did not pronounce a new
standard. Rather, it seemed to revert to the standard in Ritchie, which re-
quires that a defendant make a plausible showing that the privileged rec-
ord at issue contained material evidence. See Ritchie, 480 U.S. at 58.
2 For the first time on appeal, Wisconsin argues DAR’s medical rec-
ords were not in the state’s possession. The role of “a federal habeas court”
is to “simply review[] the specific reasons given by the state court and de-
fer[] to those reasons if they are reasonable.” Wilson v. Seller, 138 S. Ct.
1188, 1192 (2018). The state courts and the district court did not discuss
whether DAR’s medical records were held by the state, and there were no

-- 13 of 17 --

14 No. 17-2903
Rogers’s counsel was not ineffective for failing to make a
Shiffra/Green motion. That motion would have been meritless
because Rogers could not make the preliminary showing of
the records’ materiality required under Shiffra/Green. The
Wisconsin Court of Appeals concluded that Rogers fell far
short of the Shiffra/Green threshold requirements:
At the outset, he fails to set forth “a specific factual ba-
sis” that demonstrates that the Victim’s mental health
records will contain “relevant information necessary to
a determination of guilt or innocence.” … Instead, he
just speculates. He jumps from the fact that the victim
was hospitalized to his speculation that she must have
mental health records and that they will show that she
suffered “from a mental illness” and that it would be
the type of mental illness that would somehow make it
“more likely that she had fabricated or misremem-
bered the events” at issue, which would have had a
great impact on the jury. However, he offers no “fact-
specific evidentiary showing” of relevance…. He fails
to point to anything in the victim’s medical records
that would indicate a propensity to lie. He simply links
a series of guesses.
Response to Petition for Writ of Habeas Corpus Ex. 6 at 9–10,
ECF 10-6 (internal citations omitted). This application of
Strickland was not unreasonable because it does not lie “well
findings of fact on that matter. In his requests for DAR’s medical records,
Rogers asks for documents from the hospital, not the state. There is no
information whether the hospital was run by the state, whether the state
had copies of the records, or if there was any other fact finding at a previ-
ous stage in this case. Wisconsin failed to address this waiver in its briefs
or at oral argument. So, Wisconsin waived this argument.

-- 14 of 17 --

No. 17-2903 15
outside the boundaries of permissible differences of opinion.”
Badelle v. Correll, 452 F.3d 648, 655 (7th Cir. 2006) (internal ci-
tation omitted). The objection would have failed for the rea-
sons explained below, and the decision of the state court as
well as the decisions of Rogers’s counsel are subject to double
deference as a Strickland claim on habeas review. This court
has recognized that “[o]bviously, an attorney is not constitu-
tionally deficient for failing to lodge a meritless objection.”
Northern v. Boatwright, 594 F.3d 555, 561 (7th Cir. 2010).
Applying the same logic, the Wisconsin Court of Appeals
concluded that the failure to file a meritless motion could not
constitute deficient performance.
Further, “Rogers was permitted to cross examine [DAR]
on hearing voices and any of the matters she reveals in the
letter to her mother.” Response to Petition for Writ of Habeas
Corpus, Ex. 6 at 8, ECF 10-6. Thus, DAR’s mental state was
before the jury.
B
As for Rogers’s Ritchie claim, recall, that case requires a
defendant to make a plausible showing that the confidential
record at issue contained material evidence. See 480 U.S. at 58;
see also Dietrich, 701 F.3d at 1196. Rogers argues he made a
plausible showing before the state court for in camera review
of DAR’s medical records. He pointed to evidence in state
court that DAR suffers from schizophrenia. Rogers listed facts
that he said indicated DAR suffered from a mental illness, in-
cluding:
• DAR’s admission that she was “hearing voices”;
• DAR’s “disturbing letter that is not reflective of
someone in sound mind”;

-- 15 of 17 --

16 No. 17-2903
• DAR’s accusations against her father “alongside
complaints about ‘trying to juggle … little peo-
ple”;
• DAR’s admission that she was “thinking
about … first-degree murder”;
• DAR’s hospitalization at a psychiatric facility
called Rogers Memorial Hospital; and
• Rogers’s counsel’s representation to the court
that DAR told his investigators “that she was
suffering from schizophrenia.”
But these “facts” are speculation and devoid of context. Many
of these are from DAR’s letter to her mother explaining her
sexual abuse and how it was affecting her. Reading the whole
letter—not just disconnected lines with words omitted—
shows that DAR was dealing with emotional trauma.
At a pretrial conference, Rogers’s trial counsel referred to
a conversation among his investigator, DAR, and her mother
that DAR had been diagnosed with schizophrenia. But at no
time was any evidence offered that DAR had been so diag-
nosed. In contrast, the prosecutor reported at the same pre-
trial conference that she understood from DAR’s mother that,
not surprisingly, DAR suffered from depression caused by
Rogers’s sexual abuse. And at sentencing, Rogers’s trial coun-
sel walked back his contention that DAR had schizophrenia,
stating that DAR and her mother told his investigator that
DAR suffered from post-traumatic stress.
A rebutted and withdrawn allegation is not a plausible
showing. As this court has noted:

-- 16 of 17 --

No. 17-2903 17
The Supreme Court did not intend to require the trial
court to undertake a blind fishing expedition through
a victim’s mental health records for the sole purpose of
possibly uncovering additional evidence that may aid
in cross-examination, which the defendant has inde-
pendently and speculatively determined would prob-
ably be most effective.
Dietrich, 701 F.3d at 1197. Instead of a plausible showing, all
Rogers offered, as the state appellate court observed, was
speculation.3
III
Under the highly deferential standard we apply in this ha-
beas case, the Wisconsin Court of Appeals decision was not
an unreasonable application of federal law. So, we A FFIRM the
district court.
3 Rogers offers a cursory argument that the state court ruling was
“contrary to” Ritchie. But we reject that argument for the reasons this court
has explained before: the Shiffra/Green and Ritchie “standards do not di-
verge in any meaningful way and are not ‘contrary to’ one another in the
way that the Supreme Court has defined the phrase.” See, e.g., Moseley, 860
F.3d at 1024.

-- 17 of 17 --