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William Kerr v. Thurmer, 7th Cir No. 09-1032, 3/28/11 – Part II

7th circuit decisionon habeas review of summary orders in 2001AP168 (§ 809.30 appeal) and 2003AP2332 (§ 974.06 appeal)

Due to the nature of the issues and length of discussion, this case will be canvassed in multiple posts. Part I (IAC – adequate provocation defense) is here; Part III (evidentiary hearing, GP advice), here.

Habeas – Procedural Fault

Kerr’s pro se § 974.06 motion asserted ineffective assistance of counsel as a ground for relief. The trial court denied the motion, citing State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) for the idea that a court may decline to rule on undeveloped arguments. The state court of appeals summarily affirmed, and the 7th Circuit now says that this represents a determination that Kerr procedurally defaulted the claim.

We conclude that the brief comment on which the state is now relying does not reflect an alternative ruling on the merits. Instead, the state court’s decision to reject Kerr’s claim because he failed to develop it in a manner that complied with state procedural rules “ ‘fairly appears’ to rest primarily on state law.” Coleman, 501 U.S. at 740. This conclusion is buttressed by the fact that the only legal authority mentioned by the state court was State v. Pettit, 492 N.W.2d 633 (Wis. Ct. App. 1992). Pettit describes Wisconsin statutes that permit state courts to ignore a claim that has not properly been developed. Id. at 646-47. We recently observed that “Wisconsin waiver law . . . constitutes an adequate and independent state law ground” barring federal habeas corpus, Promotor v. Pollard, 628 F.3d 878, 886-87 (7th Cir. 2010); see also Gray v. Hardy, 598 F.3d 324, 329 (7th Cir. 2010) (discussing Illinois waiver rules and federal habeas corpus review), and we see no reason to treat Wisconsin’s rules about proper development of legal claims differently. Just as in federal court, a party’s failure adequately to develop an argument has consistently been a reason to reject claims advanced by litigants in the Wisconsin state courts. That the state court might have reached the merits of Kerr’s claim and chose not to do so makes no difference in the adequate-and-independent ground analysis. Walker v. Martin, 131 S. Ct. 1120, 1125 (2011) (citing   v. Kindler, 130 S. Ct. 612 (2009)). The record leaves no doubt that the state court’s decision rested on this independent and adequate procedural ground.

Let’s pause for a moment and take stock of this development. Pettit may not be the most-cited case, but neither are our appellate courts exactly shy about tossing it in your face. An “undeveloped” argument – which might be one insufficiently bolstered by legal authorities or record references; one that is, in a word, perceived as too conclusory in nature – will incur a waiver bar to review not just in state court but federal court as well. Nor is there reason to think that perceived defects in argumentation are limited to “undeveloped” issues. Just something to keep in mind as you navigate that minefield on the way to federal court.

One more important detail to cover: the state appellate court issued a summary affirmance which didn’t discuss the Pettit-based default. Does this silent treatment indicate rejection of the claim on the merits or ratification of the trial court’s conclusion of default? The latter, the 7th says:

… The important question after Richter is whether the state appellate court’s summary decision signals that Kerr’s claim was “adjudicated on the merits” by the state court. See 131 S. Ct. at 783- 85. In our view, it does not. Richter did not say that all summary affirmances in the course of state-court proceedings are rulings on the merits. To the contrary, the Richter Court wrote, “When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary.” Id. at 784-85 (emphasis added). …

Under “established rules,” the “unexplained” affirmance of a “reasoned state judgment” presumptively adopts the latter. In other words, if the judgment reached the merits, then summary affirmance was presumptively on the merits; same re: default. (Slip op., pp. 15-18.) Kerr’s claim, then, was defaulted … except that in the strange world of habeas review this works to his advantage. How so? Read on.

Procedural Default – State’s Waiver

Procedural default is normally a defense that, in order to preserve, the state must assert in its answer to the federal petition, Kaczmarek v. Rednour, 627 F.3d 586, 591-92 (7th Cir.2010) (citing Trest v. Cain, 522 U.S. 87, 89 (1997)), subject to limited circumstances “in which the state’s own forfeiture should be overlooked.” Here, the state waited until the case was on appeal before raising the defense.

… Even then, the  state hardly touched on the point. It devoted a scant half page to the issue in its responsive brief and referred to no legal authority in support of its argument. Federal courts, just like  their Wisconsin counterparts, consider such poorly developed arguments forfeited on appeal, see, e.g., Judge v. Quinn, 612 F.3d 537, 557 (2010), and there is no exception that applies to the state’s argument here. The state trial court flagged Kerr’s plea bargain theory as underdeveloped, and so it would have been easy for the state to have argued procedural default. It did not do so in the district court, and its argument in this court was skeletal. Under the circumstances, we conclude that the default was forfeited. Whether because this is the result that the state wanted at some point during this litigation or because of the normal operation of the rules of forfeiture, the state’s forfeiture means that we may move on to the merits of Kerr’s plea bargain theory.

(Slip op., pp. 18-20.) And so the state is hoist by its own petard. Or by the feds’ own version of the Pettit rule.

Standard of Review: Non-Deferential

Deferential review under 28 U.S.C. § 2254(d) applies only when the state court has adjudicated the claim on the merits. As just seen, the Wisconsin court failed to do that, resolving the claim on the procedural ground of default instead. And because the otherwise resultant bar to federal review was forfeited by the state, the deferential review regime isn’t applicable.

As Kerr’s plea bargain claim reaches us—by means of a confusing presentation in the state court that was deemed a procedural default, followed by the state’s forfeiture of whatever default occurred—the one thing that is clear is that no state court has squarely addressed the merits. In these circumstances, we review Kerr’s plea bargain claim under the pre-AEDPA standard of review set out in 28 U.S.C. § 2243. See, e.g., Chaker v.Crogan, 428 F.3d 1215, 1220-21 (9th Cir. 2005); cf. Johnson v. Thurmer, 624 F.3d 786, 789-91 (7th Cir. 2010); George, 586 F.3d at 484-85; Braun v. Powell, 227 F.3d 908, 916-17 (7th Cir. 2000). Under that standard, we are to “dispose of the matter as law and justice require,” 28 U.S.C. § 2243, which we have interpreted to mean that we review the petitioner’s constitutional claim with deference to the state court, but ultimately de novo. Richter, 131 S. Ct. at 788 (“Even under de novo review, the standard for judging counsel’s representation is a most deferential one.”); McGee v. Bartow, 593 F.3d 556, 572 n.10 (7th Cir.2010).

On, then, to the merits, in Part III. Alas, the outcome will seem anti-climactic.

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