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Seventh Circuit holds that habeas petitioner is not entitled to relief due to conflict of interest

Keith C. Henyard v. Cheryl Eplett, No. 22-3086, 4/26/24

Although Henyard argues that his conviction must be reversed because the lawyer who represented him was also the judicial official who bound him over for trial, the Seventh Circuit denies relief and holds that the Wisconsin Court of Appeals did not erroneously apply governing federal law.

(Note that our prior post about COA’s decision can be found here).

This bizarre fact pattern, while generating a fiery dissent in COA, leads to a relatively rote application of habeas principles. In a nutshell, the lawyer that represented Henyard through his plea and sentencing was also, for a brief moment, a part-time court commissioner in Kenosha County. (p.2). In connection with that role, he presided over Henyard’s prelim waiver and bound him over for trial. (Id.) Five months later, Henyard hired him as adversary counsel and the case resolved with a plea and without anyone mentioning the obvious conflict. (Id.). Henyard pursued postconviction relief and, at an evidentiary hearing, his lawyer explained that he simply did not remember presiding over Henyard’s hearing but conceded that his conflict check had been inadequate. (p.4). However, the circuit court concluded Henyard was aware of the conflict and had therefore “manufactured his own distress.” (Id.). A divided COA affirmed. (Id.).

Henyard pursued habeas relief and lost in district court. (p.5). The Seventh affirms that order. (Id.). It holds that clearly established case law does not contradict COA’s discussion of the governing law, even though it focused on Wisconsin precedents:

In short, the Supreme Court has clearly established that where a conflict arises from multiple representation, a defendant must show that his attorney actively represented conflicting interests in a way that had an adverse effect on the attorney’s performance to establish a claim for ineffective assistance of counsel. If the defendant can show an adverse effect, prejudice is presumed.

What the Court has not clearly established is whether this rule presuming prejudice extends to conflicts beyond multiple representation. Nor has the Court ever said that a defendant need not show an adverse effect on performance to prevail on a conflicts theory of ineffective assistance.

Nothing in that body of law conflicts with the rule the Wisconsin Court of Appeals applied when considering Henyard’s petition for postconviction relief: that Henyard must show Parise labored under an active conflict of interest that adversely affected his representation.


Here, Henyard fails to prove the existence of an “actual conflict”–and a mere ethical violation, under controlling law, is insufficient to establish that criterion. (p.10). Moreover, he also cannot identify an adverse effect and instead is left to make novel arguments about broader harms to the integrity of the overall legal system which are obviously unavailing in this forum. (Id.).

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