Jonathon Adeyanju v. Lance Wiersma ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐1876
JONATHON ADEYANJU,
Petitioner‐Appellant,
v.
LANCE WIERSMA, Administrator,
Division of Community Corrections,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 11‐cv‐81‐wmc — William M. Conley, Judge.
____________________
ARGUED MAY 12, 2021 — DECIDED AUGUST 31, 2021
____________________
Before FLAUM, HAMILTON, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. For his role in a gang shooting, a
jury convicted Jonathon Adeyanju of attempted homicide and
endangering safety by use of a firearm. His primary defense
at trial was that he was not involved, as no physical evidence
connected him to the crime, and he said the State’s witnesses
could not be trusted. Adeyanju’s counsel contended that the
shooters—whoever they were—intended to scare but not to
2 No. 20‐1876
kill their gang rivals, so they were guilty of the endangering
safety charges but not attempted homicide.
His counsel was ineffective, Adeyanju submits, because he
should have requested a jury instruction on a lesser‐included
offense to attempted homicide—first‐degree recklessly en‐
dangering safety. Then, the jury could have found that he was
among the shooters but did not intend to kill anyone. But the
jury already had that option with the endangering safety by
use of a firearm charges, which it chose not to take. Because
Adeyanju fails to show that he was prejudiced by counsel’s
purported error, we affirm the district court’s denial of his
28 U.S.C. § 2254 petition.
I
A
On the evening of August 9, 2005, a group of men fired a
hail of bullets into a crowd of rival gang members gathered
outside a garage in Oregon, Wisconsin. There were no fatali‐
ties, but three of the victims suffered gun‐shot wounds (one
to the hand and thigh, one to the thigh, and one to the groin).
The plot, it appears, was a preemptive strike: the shooters
wanted to prevent retaliation against members of their own
gang, including Adeyanju’s brother, who had robbed mem‐
bers of the rival gang.
Adeyanju was charged as one of the shooters with three
counts each of attempted first‐degree intentional homicide
and of endangering safety by use of a firearm. The mens rea
requirement differs for these two crimes: attempted homicide
requires “intent to kill” another person, WIS. STAT. § 940.01(1),
whereas endangering safety by use of a firearm requires
“[i]ntentionally discharg[ing] a firearm into a vehicle or
No. 20‐1876 3
building under circumstances in which he or she should real‐
ize there might be a human being present,” WIS. STAT.
§ 941.20(2)(a). Further, Adeyanju was charged as a “party to”
these crimes, meaning that he could be found guilty for di‐
rectly committing the crimes, aiding and abetting the commis‐
sion of the crimes, or acting in a conspiracy to commit the
crimes. WIS. STAT. § 939.05(2).
At trial, defense counsel argued principally that Adeyanju
was not among the shooters. He did not offer a specific alibi,
and Adeyanju exercised his right not to testify. Instead, coun‐
sel highlighted that no physical evidence tied Adeyanju to the
shooting. In addition, he attempted to cast doubt on the
State’s witnesses who placed Adeyanju on the scene, noting
confusion about the number of shooters and the witnesses’
purported motivations to lie.
Adeyanju’s counsel also presented an alternative defense:
the shooters did not intend to kill their rivals, but rather
simply to scare them. In support of this theory, counsel elic‐
ited testimony on cross‐examination that some of the partici‐
pants did not intend to kill anyone. Counsel argued to the jury
in closing that because the shooters did not intend to kill, the
shooting was “cover[ed]” by the endangering safety by use of
a firearm charges, but not the attempted homicide charges.
Counsel drafted a jury instruction on a lesser‐included of‐
fense for attempted first‐degree homicide—first‐degree reck‐
lessly endangering safety, WIS. STAT. § 941.30(1). But he did
not request this charge at the jury instruction conference, and
the jury was never instructed on it. Ultimately, Adeyanju was
convicted of all six counts.
4 No. 20‐1876
B
Adeyanju moved for state postconviction relief, arguing
his trial counsel was ineffective for failing to request the first‐
degree recklessly endangering safety jury instruction. At an
evidentiary hearing, his counsel testified he felt the defense’s
strategies were limited by his client’s decisions not to accept
a plea offer and not to testify. Heading into trial, counsel
thought Adeyanju was likely to be convicted on all counts.
Counsel said his client never insisted on an “all‐or‐nothing”
defense. He did not recall discussing the possibility of a
lesser‐included offense instruction with his client, but said if
he had, he would have remembered. The lesser‐included of‐
fense instruction would have been consistent with his alterna‐
tive lack‐of‐intent defense theory. Counsel suggested he had
no strategic reason for not requesting the instruction; rather,
he said he “didn’t think of it” during trial.
The state court denied post‐conviction relief, concluding
that counsel had been effective because there was “no basis”
to request a lesser‐included offense. First, the court explained
that under Wisconsin law, “[i]f a ‘reasonable view’ of the evi‐
dence is sufficient to support a guilty verdict beyond a rea‐
sonable doubt for the greater and lesser‐included offenses,
then no lesser‐included instruction need be given.” State v.
Weeks, 477 N.W.2d 642, 645–46 (Wis. Ct. App. 1991) (quoting
State v. Bergenthal, 178 N.W.2d 16, 21 (1970), cert. denied, 402
U.S. 972 (1971)). Further referencing Weeks, the state court
noted that “intent to kill” within the definition of first‐degree
homicide “means either that the actor ‘has a purpose’” to take
the life of another human being “or is aware that his or her
conduct is practically certain to cause that result.” Id. at 647(Fine, J., concurring) (emphasis removed) (quoting WIS. STAT.
No. 20‐1876 5
§ 939.23(4)). And, the court emphasized, Adeyanju was
charged under WIS. STAT. § 939.05(2) as a party to the crime of
attempted homicide, meaning the jury could have found him
guilty of that crime if any of the other shooters had “intent to
kill” any of the gang rivals or if any “was aware that his con‐
duct was practically certain to kill” one of them.
The court then highlighted that, as part of a “concerted ef‐
fort” in which Adeyanju was a “willing participant,” “five or
six people, all facing in the same direction, all firing their guns
at once” shot a “[m]inimum of 33 rounds” toward the rival
gang’s garage. The shooters also made extensive efforts to
avoid getting caught, including rubbing the ammunition with
alcohol prior to loading each weapon to make sure that no
fingerprints could be found, selecting firearms that would not
leave casings, and wearing “virtually identical … black T‐
shirts.” Thus, the court concluded, the record did not reveal
evidence that would cast a reasonable doubt on any element
of attempted first‐degree homicide, including doubt on the el‐
ement of intent.
The Wisconsin Court of Appeals affirmed on different
grounds. State v. Adeyanju, 773 N.W. 2d 225, 2009 WL 2047271(Wis. Ct. App. July 16, 2009) (per curiam). Also evaluating
Adeyanju’s claim under the Strickland framework, the appeals
court concluded it was reasonable for counsel not to request a
lesser‐included offense instruction because the instruction
may have harmed Adeyanju. Id. at *3–4. If the jury found that
Adeyanju did not have the requisite intent for attempted
homicide, it would have had to acquit him of that crime. Id. at
*3. But if the lesser‐included instruction were introduced, the
jury could have reached a guilty verdict on it. Id. Therefore,
the court concluded, it was objectively reasonable “for
6 No. 20‐1876
counsel to forego [sic] a lesser‐included offense instruction in
the hope of forcing the jury into complete acquittal, rather
than giving it a second option for conviction.” Id. at *3.
The Wisconsin Supreme Court denied review, and
Adeyanju did not seek certiorari in the Supreme Court of the
United States. Instead, he petitioned for federal habeas relief
under 28 U.S.C. § 2254, which the district court denied.
II
We review de novo the district court’s denial of
Adeyanju’s petition for a writ of habeas corpus. See Schmidt v.
Foster, 911 F.3d 469, 476 (7th Cir. 2018) (en banc). “Federal ha‐
beas review … exists as ‘a guard against extreme malfunc‐
tions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.’” Woods v. Donald,
575 U.S. 312, 316–17 (2015) (quoting Harrington v. Richter, 562
U.S. 86, 102–03 (2011)). Relief is rarely available. We may grant
it only to a state prisoner who is “in custody in violation of
the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a).
Before us, Adeyanju continues to press, as he did in state
court, that he received ineffective assistance because his trial
counsel did not propose a jury instruction on the lesser‐in‐
cluded offense of recklessly endangering safety. To prevail,
Adeyanju must show under Strickland v. Washington, 466 U.S.
668 (1984), and subsequent authority, that his trial counsel
provided ineffective assistance. Strickland requires a showing
of both deficient performance and prejudice resulting from it.
Id. at 687. Counsel performance fails to meet constitutional
standards only when it falls “below an objective standard of
reasonableness” and it prejudices a petitioner only if “there is
No. 20‐1876 7
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been differ‐
ent.” Id. at 687–88, 694. A petitioner is entitled to habeas relief
only if he satisfies both of Strickland’s prongs. See Thill v. Rich‐
ardson, 996 F.3d 469, 476 (7th Cir. 2021).
We turn first to whether Adeyanju was prejudiced by his
trial counsel’s performance. The parties do not debate the
standard of review on this prong—they agree that the Wis‐
consin Court of Appeals addressed only Adeyanju’s counsel’s
performance, so they ask us to review de novo the issue of
prejudice. “In these circumstances, the Supreme Court has in‐
structed, we treat the two prongs of Strickland as divisible and
review the prejudice prong by taking our own fresh look at
the evidentiary record.” Gish v. Hepp, 955 F.3d 597, 605
(7th Cir. 2020); see also Rompilla v. Beard, 545 U.S. 374, 390
(2005) (applying de novo review to the issue of prejudice
where the state court addressed only counsel’s performance
under Strickland). We therefore presume without deciding
that the Antiterrorism and Effective Death Penalty Act of
1996’s deferential standard of review under § 2254(d) does
not apply.
Adeyanju argues there was a reasonable probability that
at least one juror would find that he and the other shooters
acted recklessly, rather than with intent to kill the occupants
of the garage. Citing Keeble v. United States, 412 U.S. 205, 212
(1973), Adeyanju maintains that when a defendant is “plainly
guilty of some offense” but “one of the elements of the offense
charged remains in doubt,” and the jury is given the stark
choice to acquit or convict on that offense, “the jury is likely
to resolve its doubts in favor of conviction.” He compares this
case to United States ex rel. Barnard v. Lane, 819 F.2d 798, 803‐04
8 No. 20‐1876
(7th Cir. 1987), in which the defendant’s counsel provided in‐
effective assistance because he failed to ask for justification or
manslaughter jury instructions in addition to instructions on
first‐degree homicide. That omission left the jury with no way
to reach a finding of reduced culpability—Lane’s only viable
defense after he admitted to shooting the victim but explained
he had been carrying a firearm due to fear of the victim. Id.This case is like Lane, Adeyanju insists, as without the lesser‐
included offense instruction, the jury likely convicted him of
attempted homicide—even if it had doubts about whether the
shooters intended to kill their gang rivals—because the jury
knew that shooting toward an occupied garage was some sort
of crime.
This case differs from Lane, though, in important ways.
Here, the jury could have reached a verdict consistent with
the reduced‐culpability theory while still finding Adeyanju
guilty of some crime by acquitting him of the attempted hom‐
icide charges but convicting him of endangering safety by use
of a firearm. Like recklessly endangering safety, endangering
safety by use of a firearm does not require proof that the de‐
fendant intended to kill anyone. The former involves “reck‐
lessly endanger[ing] another’s safety under circumstances
which show utter disregard for human life,” WIS. STAT.
§ 941.30(1), with recklessness in this context meaning creating
“an unreasonable and substantial risk of death or great bodily
harm to another human being and the actor is aware of that
risk,” id. § 939.24(1). Similarly, endangering safety by use of a
firearm criminalizes “[i]ntentionally discharg[ing] a firearm
into a vehicle or building under circumstances in which he or
she should realize there might be a human being present.” Id.
§ 941.20(2)(a).
No. 20‐1876 9
The jury had the option of finding that Adeyanju and the
other shooters had a lesser degree of culpability, but did not
choose it. In his closing argument, Adeyanju’s counsel con‐
tended that if the jury doubted the shooters intended to kill
their gang rivals, it should find Adeyanju guilty of only the
three endangering safety by use of a firearm charges. “[I]t’s
just not true,” his counsel argued, that when “[y]ou fire shots
at people [it is] because you intend to kill them.” Rather, he
told the jury, “when you take a look at the jury instructions,
on counts four, five, and six … that pretty much covers the
situation that actually occurred … that night, which is shoot‐
ing into an occupied dwelling.” It is unconvincing, as
Adeyanju suggests, that offering the recklessly endangering
safety instruction—a crime with a similar mens rea require‐
ment to endangering safety by use of a firearm—would have
convinced the jury to find that Adeyanju and the shooters
lacked an intent to kill.
Our conclusion on this point is strengthened by the state
court’s finding that overwhelming evidence supported the
shooters’ intent to kill their rivals. See McAfee v. Thurmer,
589 F.3d 353, 357 (7th Cir. 2009) (defendant not prejudiced by
failure to request lesser‐included offense instruction where
evidence was “overwhelming”).1 As that court detailed, the
1 We have previously held that when a state appellate court does not
expressly adopt the trial court’s reasoning and instead remains silent on
one of the Strickland prongs, we give “deference only to the prong the ap‐
pellate court did reach.” Thomas v. Clements, 789 F.3d 760, 766 (7th Cir.
2015). More recently, however, the Supreme Court held in Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018), that when the final state court adjudication on
the merits summarily affirms an earlier state court decision, federal habeas
courts “should ‘look through’ the unexplained decision to the last related
state‐court decision that does provide a relevant rationale.” Here, the
10 No. 20‐1876
shooters’ plan was intentional: five or six men pulled up and
shot their guns into the crowded garage, firing at least 33
rounds. Further, the shooters took elaborate steps to avoid
getting caught: they covered their faces with bandanas, they
wore all black, and they wiped down every bullet they loaded
into their guns, to leave no fingerprints. Finally, one of the
bullets fired was found lodged in a car parked in front of the
garage, four‐and‐one‐half feet off the ground—evincing in‐
tent to shoot chest high and thus to kill, rather than just to
frighten.
Adeyanju also argues that the unsubmitted jury instruc‐
tion might have changed the result of his trial because some of
the other shooters who testified at his trial said they did not
intend to kill anyone. He highlights that under cross‐exami‐
nation two of the shooters stated they did not intend to kill
anyone. Lucas Rodriguez said he did not “intend to kill some‐
body,” but rather just wanted “[t]o get [the gang rivals]
scared” so that “they would leave [Rodriguez] alone.” And
Wisconsin Court of Appeals did not explicitly adopt the trial court’s rea‐
soning, but it also did not explicitly decline to do so or in any way disagree
with the trial court’s reasoning. Without deciding whether Wilson conflicts
with Thomas, we give the trial court’s reasoning great weight under com‐
ity. Federal habeas review is confined by “a foundational principle of our
federal system: State courts are adequate forums for the vindication of fed‐
eral rights.” Burt v. Titlow, 571 U.S. 12, 19 (2013). For one, it is well recog‐
nized that “state courts know and follow the law,” Donald, 575 U.S. at 316
(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam))—espe‐
cially in cases “involv[ing] such a common claim as ineffective assistance
of counsel under Strickland,” Titlow, 571 U.S. at 19. Further, the same state
court judge presided over Adeyanju’s criminal trial and his post‐convic‐
tion proceedings. His decision therefore sheds helpful light on the trial
record and, in turn, on Adeyanju’s prospects for acquittal on the at‐
tempted homicide charges.
No. 20‐1876 11
Andrew Pirsch testified he did not “intend to kill” the gang
rivals when he fired his gun.
But that contention is not persuasive because Adeyanju
was charged and found guilty as a party to a crime under WIS.
STAT. § 939.05(2). Under Wisconsin law, a party to a crime is
guilty of that crime whether or not that party intended the
crime or had the intent of its perpetrator. State v. Stanton, 316
N.W.2d 134, 138 (Wis. Ct. App. 1982). As the Wisconsin Court
of Appeals ruled, because Adeyanju was convicted as a party
to a crime, “if any one of the shooters … had intent to kill, that
intent would be sufficient to convict all defendants.”
Adeyanju, 773 N.W.2d 225, at *2. We cannot overrule this con‐
clusion about state law. See Bradshaw v. Richey, 546 U.S. 74, 76
(2005) (“[A] state court’s interpretation of state law … binds a
federal court sitting in habeas corpus.”); Miller v. Zatecky, 820
F.3d 275, 277 (7th Cir. 2016) (“A federal court cannot disagree
with a state court’s resolution of an issue of state law.”). To
acquit Adeyanju of attempted homicide, the jury would have
had to find that none of the other shooters had the requisite
intent to kill.
The State also elicited plenty of testimony contradicting
that which Adeyanju highlights. When questioned by the
State, Rodriguez testified that the overall plan for the shooting
was “to get” the gang rivals “before they get us,” explaining
that “get them” meant to “[t]ry to kill them.” Rodriguez con‐
tradicted his earlier testimony by saying that killing someone
had “passed [his] mind” and that it was “[s]ort of” his inten‐
tion to kill the people in the garage. He further admitted that
he and the others were shooting “[i]n the garage towards the
people” and he said he did not really care if he hit someone.
He also testified that when he asked Adeyanju what he had
12 No. 20‐1876
done at the time of the shooting, Adeyanju replied “[h]e shot
all six” bullets from his gun’s cartridge. When Pirsch was
questioned by the State, he testified he was indeed shooting
at the “[p]eople” as well as a house. Even on cross‐examina‐
tion, when asked whether he intended to kill anyone, Pirsch
first answered, “I don’t know. I shot at them.”
So under de novo review, Adeyanju has failed to show a
reasonable probability that, but for counsel’s failure to pro‐
pose a lesser‐included offense instruction, his trial would
have come out differently. As the state court said, no one died
during this shooting “but for the grace of God.” The jury was
presented with the evidence described above, and Adeyanju’s
counsel expressly requested that the jury find that the shoot‐
ers lacked intent to kill and therefore were guilty of only the
lesser offense of endangering safety by use of a firearm. In‐
stead, the jury found Adeyanju and the other participants
guilty of all charges, including attempted homicide—mean‐
ing the jury concluded that an intent to kill was present. Not
only was a compromise available for the jury on the endan‐
gering safety by use of a firearm counts, but there is only a
small difference between the crime on which the jury was in‐
structed and the instruction Adeyanju points to for recklessly
endangering safety. That difference is highly unlikely to have
had a “reasonable probability” of changing the trial’s out‐
come to benefit Adeyanju, as Strickland requires.
  
When the petitioner’s arguments concerning the prejudice
prong fail, as here, we need not address whether counsel’s
performance was deficient. Thill, 996 F.3d at 476–77 (“noting
that ‘it is unnecessary and undesirable for [a habeas court] to
consider the attorney performance facet of the analysis’ when
No. 20‐1876 13
‘an ineffectiveness claim may be disposed of on the basis of a
lack of prejudice‘” (alteration in original) (quoting Taylor v.
Bradley, 448 F.3d 942, 949 (7th Cir. 2006))).
For these reasons, we AFFIRM the denial of Adeyanju’s
§ 2254 petition.