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7th Circuit denies habeas relief to Wisconsin prisoner despite being “deeply troubled by the performance of defense counsel;” addresses impact of no-merit petition for review as to alleged procedural default

Tyler A. Gonzales v. Cheryl Eplett, No. 22-2393, 8/9/23 (Available on Westlaw as 2023 WL 5086451)

In a case demonstrating the full power of AEDPA’s stringent standard of review, the 7th Circuit is powerless to grant a new trial despite its palpable discomfort when evaluating the performance of defense counsel.

In 2015, Gonzales got in an argument at a local tavern with two other men. (p.2). Although he had the good sense to leave rather than letting things escalate further, Gonzales undermined those efforts when he opened fire on the two men while being driven away. (Id.). One of the men was wounded in the leg. (Id.). As a result, Gonzales was charged in Walworth County with attempted first-degree intentional homicide and possession of a firearm by a felon. (Id.). Pretrial, he was offered the chance to plead guilty to a lesser-included offense of first-degree recklessly endangering safety as well as the FIPOF. (Id.). The State agreed to recommend 10 years of initial confinement. (Id.).

Defense counsel advised Gonzales to reject the plea and to instead take his case to trial. (p.3). She believed they should seek a full acquittal, as it was her understanding that key witnesses would be unavailable for trial, especially if they moved quickly. (Id.). In her view, the defense would be able to “capitalize on witness unavailability and the impeachment fodder to create reasonable doubt about whether Gonzales was the shooter.” (Id.). Gonzales listened to his attorney, rejected the State’s offer, and demanded a speedy trial. (Id.). At trial, however, things did not go according to plan. Not only did the “unavailable” witnesses show up to court, but the man who was driving Gonzales during the shooting was also offered immunity and testified against him. (p.4). As a result, the State had an “impressive” case against Gonzales. (Id.).

Gonzales therefore admitted he was the shooter to trial counsel and offered to take the stand and testify that, while he fired the gun, he was just trying to “scare” the two men, thus conceding his guilt on the lesser-included while undermining the “intent” element for the attempted first-degree intentional homicide charge. (Id.). Trial counsel rejected that strategy, however, and instead doggedly pursued her original strategy seeking a full acquittal. (Id.). Even though she had reserved her opening statement, she never “pivoted” her strategy to adjust for the serious change in circumstances. (Id.). Gonzales was then convicted of attempted first-degree intentional homicide (and the FIPOF) and ultimately sentenced to 25 years of initial confinement. (Id.).

In reviewing counsel’s conduct, the Seventh Circuit is clear “there is a great deal to criticize in her performance.” (p.5). Even more troublingly, multiple jurors later stated they did not understand the applicability of the lesser-included in this case (the State requested that instruction) and only voted to convict on the attempted homicide charge because they believed proof that Gonzales had pulled the trigger satisfied those elements. (Id.).

To trial counsel’s credit, she appeared to accept responsibility for not pursuing the lesser-included defense at sentencing and later fell on her sword at an eventual hearing when postconviction counsel filed a motion alleging ineffectiveness. (Id.). She claimed that it “never even crossed her mind” to argue for a lesser-included offense and admitted to having tunnel vision about the case. (Id.). The trial court, unmoved by these admissions, held that counsel’s performance was not objectively unreasonable and, because there was sufficient evidence to convict Gonzales of attempted first-degree intentional homicide, there could be no prejudice. (p.6).

The court of appeals, in a per curiam decision, affirmed after only one paragraph of substantive analysis holding that counsel did not perform deficiently. Appellate counsel then filed a no-merit petition for review, to which Gonzales did not file a supplement. (Id.). After the no-merit petition for review was denied, Gonzales ultimately sought habeas relief and the district court denied his petition. (p.7).

On appeal from that decision, the Seventh Circuit first deals with the thorny issue of procedural default, as the State argues that Gonzales’ failure to file a supplement to counsel’s no-merit petition for review means he has failed to exhaust his remedies in state court. (Id.). Under Rule 809.32(4)(a), once appointed counsel files the no-merit petition, it is incumbent on the defendant to file a supplement to explain why SCOW should accept review. Although the Seventh Circuit concedes that Gonzales did not follow that procedure, the Court rejects the State’s procedural arguments and concludes that counsel’s no-merit petition, under these facts, was sufficient to “fairly present” his federal constitutional claim to the state court. (p.8).

The Seventh Circuit’s resolution of this first issue, while favorable to the defense, is debatable. While counsel in this case may have filed a more robust no-merit petition than is commonplace, the statute itself permits appointed counsel to file a relatively thin document and still comply with the applicable rules. In any case, the plain text of our statute makes clear that it is the defendant’s responsibility to make legal argument in their supplement, which Gonzales did not do here. What’s clear is that Gonzales could have entirely avoided this procedural default fight if counsel had filed a petition that would preserve her client’s claim for future federal review. Given the conclusory review by COA in this case, it is difficult to imagine there wasn’t something to say in a petition.

As to the merits of Gonzales’s ineffectiveness claim, Gonzales has to make it past two layers of deferential review: (1) the “presumption” that counsel’s performance was not deficient applicable to all ineffectiveness claims and (2) the imposing AEDPA standard of review, which allows a federal court to reverse only “unreasonable,” and not simply incorrect, state court decisions. (p.9-10). Gonzales is unable to evade those barriers to relief, notwithstanding the Seventh Circuit’s obvious dissatisfaction with counsel’s performance.

The Court divides the case into three stages. First, the Court concludes that counsel’s decision to advise her client to go to trial rather than accept a plea, while wrong in hindsight, was not objectively unreasonable given the information then-available. (p.11). Second, the Court examines her failure to “pivot” to a new defense strategy midway through the disastrous trial. (Id.). While her choices are “less defensible” here, the Court is reluctant to “speculate” and labors hard to avoid the “lure of hindsight.”  (p.12). Under the deference accorded to strategic decisions, counsel’s conduct was not unreasonable. (Id.). At the third stage–closing argument–the Court comes close to finding counsel’s performance unreasonable, holding that if counsel had argued effectively for a lesser-included offense at this stage, her conduct may “have had an effect” on the jury’s verdict. (p.13.). Given counsel’s postconviction testimony evincing a lack of strategic reasoning (shifting focus never “crossed her mind”), the Court concludes this might be a close case if it was applying de novo review, as it is clearly “troubled” by what happened here. (p.14).

This is where the AEDPA standard comes into play and dooms Gonzales’ habeas claim. Even if the Seventh Circuit believes this case might present a valid claim of ineffective assistance of counsel, it “cannot say that there is no possibility for fairminded disagreement on that point.” (Id). COA’s deficient performance holding is not unreasonable for the purposes of AEDPA. (Id.).

As SCOW’s recent decision in State v. Mull (failure to present evidence that the State’s key witness was actually seen committing the crime), ineffectiveness claims are exceedingly difficult to win under current Wisconsin law. While many litigants now look to habeas review as a means of getting out from under decades of unfavorable state precedent, this case proves that relief is still hard to come by in that forum due to the prosecution-friendly standard of review imposed by Congress on federal courts. Gonzales, however, came close, and the overall tone of the Court’s decision evinces more sympathy to such claims than is customarily accorded to state court litigators.

One other point should be made here. In presenting his ineffectiveness claims, Gonzales never cited to SCOTUS’ favorable decision in Wiggins v. Smith, holding that for the deferential Strickland “presumption” to apply, the challenged “strategic decision” has to be just that–strategic, and not merely the result of inattention or oversight. Here, counsel’s postconviction testimony–that a change in strategy never crossed her mind–seems to invite a more rigorous discussion of that case’s applicability to these facts. Perhaps if counsel had filed a petition for review, that issue would have given SCOW an opportunity to compare the language of Wiggins against its otherwise reflexive tendency to sanction alleged trial strategy in all but the most egregious of circumstances. (See State v. Breitzman, holding that only those decisions which are “irrational or based on caprice” are reversible under Strickland).

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