David Minnick v. Dan Winkleski ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20‐3253
DAVID MINNICK,
Petitioner‐Appellant,
v.
DAN WINKLESKI, Warden,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 19‐CV‐33 — William E. Duffin, Magistrate Judge.
____________________
ARGUED MAY 12, 2021— DECIDED SEPTEMBER 21, 2021
____________________
Before FLAUM, HAMILTON, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. David Minnick pleaded no contest
in Wisconsin state court to several crimes that resulted from a
violent confrontation involving his then‐wife. He received
sentences totaling 27 years of initial confinement. Since then,
Minnick has brought a series of unsuccessful challenges to his
convictions in state and federal courts.
2 No. 20‐3253
The district court denied Minnick’s request for federal ha‐
beas relief under 28 U.S.C. § 2254. That court decided that
Minnick’s trial counsel was not ineffective for advising him
that a term of not more than ten years of initial confinement
was likely. The court also ruled that Minnick did not show
that any reasonable trial counsel would have advised him of
the possibility of withdrawing his no contest pleas before sen‐
tencing. So not offering that argument did not deny Minnick
the right to effective postconviction counsel.
Although Minnick’s claims could have been analyzed dif‐
ferently—including whether the state court’s decision on his
trial counsel’s sentencing advice warranted deference under
the Antiterrorism and Effective Death Penalty Act (AEDPA),
28 U.S.C. § 2254—the correct result was reached. We affirm
the denial of habeas relief.
I
When David Minnick’s wife told him she was leaving him
for another man, Minnick retrieved a rifle and struck her in
the head. She fled to her parents’ house across the street, and
Minnick followed, firing several shots. He tried to break down
the door of his in‐laws’ house, broke windows, and shot in‐
side the house, grazing his father‐in‐law. As a result, Minnick
was charged in Kenosha County Circuit Court with aggra‐
vated battery, attempted first‐degree murder, and several
counts of first‐degree reckless endangerment and attempted
burglary, all while using a dangerous weapon.
Minnick initially pleaded not guilty by reason of mental
disease or defect, arguing that his actions were rooted in the
post‐traumatic stress disorder from which he suffers. He later
No. 20‐3253 3
withdrew that plea and agreed to plead no contest to the
crimes (except for the attempted murder charge, which was
dismissed and read‐in) and leave sentencing up to the court.
This exposed Minnick to 73 years of initial confinement.1 The
presentence investigation report recommended Minnick re‐
ceive between 16 and 22½ years of initial confinement. At the
sentencing hearing, the state asked for 45 years of initial con‐
finement, and Minnick’s trial counsel, Laura Walker, asked
for 4 years. The trial court sentenced Minnick to 27 years of
initial confinement followed by 14 years of extended supervi‐
sion.
Minnick appealed that sentence, arguing (by his postcon‐
viction counsel Michael Zell) that he should be able to with‐
draw his no contest pleas because he received ineffective
assistance of counsel. An attorney is constitutionally ineffec‐
tive if she performs deficiently and this performance preju‐
dices her client. See Strickland v. Washington, 466 U.S. 668, 687
(1984). Minnick argued Walker met this standard because she
improperly guaranteed and unreasonably estimated that he
would receive a much shorter sentence.
The state trial court held a hearing at which Minnick and
Walker testified.2 The court found Walker credible that she
1 Under Wisconsin’s determinate criminal sentencing structure, a
bifurcated sentence consists of an initial term of confinement in prison fol‐
lowed by a term of extended supervision in the community. See Wis. Stat.
973.01(2); Thomas J. Hammer, The Long and Arduous Journey to Truth‐in‐
Sentencing in Wisconsin, 15 FED. SENT’G REP. 15 (2002).
2 In Wisconsin’s postconviction process, an offender’s initial step in
challenging a sentence is a postconviction motion filed under Wis. Stat.
§ 974.02, which allows the trial court the first opportunity to consider cer‐
tain challenges. See Page v. Frank, 343 F.3d 901, 905–06 (7th Cir. 2003).
4 No. 20‐3253
did not guarantee Minnick a certain sentence length, and that
Minnick knew Walker provided only an estimate. At the hear‐
ing, a friend of Minnick’s also testified he had spoken with
Walker, who asked the friend to convince Minnick to take the
plea. Walker responded in her testimony that Minnick knew
his sentence was ultimately up to the judge and that she al‐
ways qualified her statements to Minnick about the length of
his sentence by emphasizing that her estimate was not a guar‐
antee. The state court ruled against Minnick and declined to
let him withdraw his no contest pleas.
The Wisconsin Court of Appeals affirmed this decision in
2015. That court ruled: “Minnick has shown no more than that
counsel predicted an outcome that did not come to pass. Her
misjudgment of the likely sentence is not a basis for an inef‐
fective assistance of counsel claim, … .” The Wisconsin
Supreme Court and the Supreme Court of the United States
denied review.
Minnick then filed a collateral attack in state court under
Wis. Stat. § 974.06, alleging that Walker was constitutionally
ineffective because she failed to advise him that he could
withdraw his no contest pleas before sentencing if he pro‐
vided a “fair and just reason.” Because Minnick had not raised
this claim in his first appeal, he argued the state court could
consider it because his postconviction counsel Zell was con‐
stitutionally ineffective for not raising it. When Walker
learned that the presentence investigation report recom‐
mended a sentencing range exceeding what she had advised,
No. 20‐3253 5
Minnick argued, she should have informed him that he could
have moved to withdraw his no contest pleas.3
For habeas petitioners who allege they received ineffective
assistance of postconviction counsel because an issue was not
raised, Wisconsin employs a “clearly stronger” standard to
evaluate counsel’s performance under Strickland. See State v.
Romero‐Georgana, 849 N.W.2d 668, 672, 679 (Wis. 2014) (citing
State v. Starks, 833 N.W.2d 146 (Wis. 2013)). Under that stand‐
ard, “the defendant must show that a particular nonfrivolous
issue was clearly stronger than issues that counsel did present.”
Starks, 833 N.W.2d at 163 (internal quotation marks omitted).
The state court held a hearing on Minnick’s motion. Zell
testified that the claim he raised about Walker’s sentence esti‐
mate was stronger than arguing Walker was ineffective for not
advising Minnick about presentence plea withdrawal. Zell ex‐
plained that witnesses could testify about Walker’s advice to
Minnick about the likely sentence. In contrast, given the rec‐
ord, Zell had concerns that a plea withdrawal motion was not
well‐founded. The state court agreed and denied this motion.
In 2018 Minnick appealed that denial to the Wisconsin
Court of Appeals. That court noted how Minnick’s appeal was
premised on the same scenario it had rejected three years ear‐
lier that Walker’s misjudgment of a likely sentence was a basis
for an ineffective assistance of counsel claim. The appeals
court concluded that Zell had not performed deficiently,
3 Under Wisconsin law, a presentencing plea withdrawal motion is
considered under a “fair and just reason” standard, State v. Jenkins, 736
N.W.2d 24, 33 (Wis. 2007), while such a motion made after sentencing plea
is evaluated under a “manifest injustice” standard. State v. Negrete, 819
N.W.2d 749, 755 (Wis. 2012).
6 No. 20‐3253
ruling that the plea withdrawal argument was not clearly
stronger than the argument Zell offered. Zell was aware of the
law underlying a plea withdrawal motion, and more factors
favored the claim Zell made that Walker had misled Minnick
concerning his possible sentence than supported an ineffec‐
tiveness claim that Walker failed to counsel Minnick to
withdraw his pleas before sentencing. Minnick also was not
prejudiced, the appeals court ruled, because sentencing was
at the discretion of the trial judge and the presentence inves‐
tigation report did not alter that. The Wisconsin Supreme
Court denied review of Minnick’s collateral attack.
Minnick then filed this federal habeas corpus petition un‐
der 28 U.S.C. § 2254. His petition alleged:
1. Walker was ineffective for saying that if Min‐
nick accepted the plea deal, he would re‐
ceive only ten years of initial confinement;
2. Walker was ineffective for not advising Min‐
nick that he could withdraw his plea before
sentencing; and
3. Zell was ineffective for not making the plea
withdrawal argument in Minnick’s first ap‐
peal.
On the first claim, the district court concluded that Minnick
did not make this argument in the state court of appeals, so it
could be considered only because the state conceded that
Minnick met the exhaustion requirement for habeas petitions.
This led the district court to conclude that the Wisconsin
Court of Appeals had not adjudicated the first claim on the
merits, and that as a result, its decision was not entitled to def‐
erence under AEDPA. Even under de novo review, though,
No. 20‐3253 7
the district court denied the first claim because Walker had
not shown bad faith, her estimate was not inconsistent with
other cases, and there was no suggestion that her estimate was
a gross misjudgment.
The district court reviewed the second claim through the
lens of ineffective assistance of appellate counsel. But, inscru‐
tably, that court determined the government had waived any
argument that Minnick had procedurally defaulted this sec‐
ond claim. So the district court essentially analyzed Minnick’s
second and third claims together. On these claims, the district
court concluded that AEDPA deference applied because the
Wisconsin Court of Appeals adjudicated the ineffective
assistance of postconviction counsel claim on the merits. Ac‐
cording to the district court, Minnick could not have been
prejudiced by postconviction counsel’s failure because Min‐
nick could not show he would have moved to withdraw his
pleas, or that he would have succeeded in withdrawing his
plea if he had been advised to do so.
So the district court denied Minnick’s petition, but it is‐
sued a certificate of appealability on two issues: whether Min‐
nick was denied effective assistance of counsel based on
Walker’s sentence estimate, and by Zell’s failure to make the
plea withdrawal argument.
II
We first examine whether Minnick is entitled to habeas
relief for his claim that his trial counsel Walker was constitu‐
tionally ineffective when she told Minnick he was “likely” to
receive no more than ten years of initial confinement. The dis‐
trict court answered this question in the negative. We review
that determination, as we do all the district court’s decisions
8 No. 20‐3253
on Minnick’s petition, de novo. Maier v. Smith, 912 F.3d 1064,
1069 (7th Cir. 2019).
A
On this first claim, the district court concluded that the
deferential standard of AEDPA does not apply. A threshold
question is whether that decision is correct. AEDPA deference
applies only to claims in habeas petitions that were adjudi‐
cated on the merits in state court. Adorno v. Melvin, 876 F.3d
917, 921 (7th Cir. 2017). We presume a state court adjudicated
a claim on the merits unless the state court relied wholly on
state law grounds for its decision or expressly declined to con‐
sider the claim. Winfield v. Dorethy, 871 F.3d 555, 560 (7th Cir.
2017).
The district court construed Minnick’s claim in the state
court that he was “guaranteed” a certain sentence as different
from his first claim here that Walker’s advice as to the likely
sentence constituted ineffective assistance. If Minnick’s claim
was not presented to the state court—as the district court be‐
lieved—it could not have been adjudicated on the merits, as
required for AEDPA deference. Winfield, 871 F.3d at 560. Gen‐
erally, a claim not raised in the state appellate court would be
an unexhausted claim that a district court could not consider
on collateral review. See 28 U.S.C. § 2254. But according to the
district court, because the state conceded that there was no
exhaustion issue, the district court had to consider this claim
so it conducted de novo review.
We do not agree with the district court that the Wisconsin
Court of Appeals did not adjudicate Minnick’s first claim on
the merits. The state appeals court not only concluded that
Walker did not make a guarantee to Minnick about the length
No. 20‐3253 9
of his sentence, but it expressly ruled that Walker’s misjudg‐
ment of the likely sentence was not ineffective assistance of
counsel. For the purpose of habeas review, there is no func‐
tional distinction between Minnick complaining about a
“guarantee” and about “advice.” Walker offered her opinion
about what sentence Minnick would receive. However her
opinion is characterized—a “guarantee,” a “likely outcome,”
an “estimate,” or a “prediction”—it was her counsel to Min‐
nick, which the Wisconsin Court of Appeals ruled was not in‐
effective.
The state appeals court did not rely wholly on state law
grounds for its decision or expressly decline to consider the
claim, so the presumption of adjudication on the merits con‐
trols. We conclude that AEDPA deference applies to the Wis‐
consin Court of Appeals’ resolution on Minnick’s first claim.
B
Resolving this threshold question leads us to recall what
AEDPA deference means. Minnick’s appeal comes to us as a
collateral attack on a state court judgment. Under AEDPA’s
strict standard of review, federal courts defer to state court
decisions. By its text, AEDPA precludes a federal court from
granting a state prisoner’s habeas petition unless the state
court’s merits adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1) (emphases
added). “Section 2254(d) reflects the view that habeas corpus
is a ‘guard against extreme malfunctions in the state criminal
justice 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)
10 No. 20‐3253
(Stevens, J., concurring in judgment)). This standard is “diffi‐
cult to meet and highly deferential.” Makiel v. Butler, 782 F.3d
882, 896 (7th Cir. 2015) (internal quotation marks omitted). Re‐
lief is precluded “so long as fairminded jurists could disagree
on the correctness of the state court’s decision.” Harrington,
562 U.S. at 101 (internal quotation marks omitted).
AEDPA’s strictness is grounded in comity. “AEDPA rec‐
ognizes 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, 19 (2013). “AEDPA’s re‐
quirements reflect a ‘presumption that state courts know and
follow the law.’” Woods v. Donald, 575 U.S. 312, 316 (2015)
(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per cu‐
riam)). “When reviewing state criminal convictions on collat‐
eral review, federal judges are required to afford state courts
due respect by overturning their decisions only when there
could be no reasonable dispute that they were wrong.” Woods,
575 U.S. at 316. This is particularly true when state courts ad‐
judicate ineffective assistance of counsel claims. Titlow, 571
U.S. at 19.
For an ineffective assistance of counsel claim such as this,
“[t]he federal courts as a whole engage in ‘doubly deferential’
review” under AEDPA. Wilborn v. Jones, 964 F.3d 618, 620 (7th
Cir. 2020) (quoting Knowles v. Mirzayance, 556 U.S. 111, 123
(2009)). Deference is layered upon deference in these cases be‐
cause federal courts must give “both the state court and the
defense attorney the benefit of the doubt.” Titlow, 571 U.S. at
15. Even without AEDPA, ineffective assistance of counsel
claims remain difficult to prove, as “counsel is strongly pre‐
sumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional
No. 20‐3253 11
judgment.” Strickland, 466 U.S. at 690. “That hill is even
steeper” for claims governed by AEDPA. Myers v. Neal, 975
F.3d 611, 620 (7th Cir. 2020).
A claim for constitutionally ineffective assistance of coun‐
sel during the plea process is governed by the Strickland
standard. See Lafler v. Cooper, 566 U.S. 156, 162–63 (2012). To
be deficient, counsel’s performance must be unreasonable
such that “counsel was not functioning as the counsel guar‐
anteed the defendant by the Sixth Amendment.” Strickland,
466 U.S. at 687 (internal quotation marks omitted). In the plea‐
bargaining context, the prejudice prong is satisfied if “there is
a reasonable probability that, but for counsel’s errors, the
[petitioner] would not have pleaded guilty and would have
insisted on going to trial.” Lafler 566 U.S. at 163 (internal quo‐
tation marks omitted). There is “a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland 466 U.S. at 689.
C
A petitioner’s habeas claim is considered against the last
reasoned state court decision on the merits. Wilson v. Sellers,
138 S. Ct. 1188, 1192 (2018); Makiel 782 F.3d at 896. For this first
claim, that is the 2015 decision of the Wisconsin Court of Ap‐
peals on direct appeal. That court rested its analysis on the
deficient performance prong of Strickland, so we confine our
analysis to that prong.
Minnick argues that by applying a categorical rule, the
reasoning of the Wisconsin Court of Appeals was contrary to
Strickland. According to Minnick, this rule was that an attor‐
ney’s sentence miscalculations could never result in constitu‐
tionally deficient performance. True, the Supreme Court has
12 No. 20‐3253
instructed that Strickland requires a “circumstance‐specific
reasonableness inquiry,” Roe v. Flores‐Ortega, 528 U.S. 470, 478
(2000). But the reasoning of the Wisconsin Court of Appeals
was very similar to the standard this court has applied in anal‐
ogous cases, and which we do not read as a categorical rule.
This court has stated that “a mistaken prediction is not
enough in itself to show deficient performance” because “the
sentencing consequences of guilty pleas (or, for that matter,
guilty verdicts) are extraordinarily difficult to predict.” United
States v. Barnes, 83 F.3d 934, 940 (7th Cir. 1996); see also
Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000)
(“[C]ounsel’s alleged miscalculation, standing alone, could
never suffice to demonstrate deficient performance unless the
inaccurate advice resulted from the attorney’s failure to un‐
dertake a good‐faith analysis of all of the relevant facts and
applicable legal principles.”). Still, a miscalculation might
constitute deficient performance if it is a gross miscalculation
and there is evidence of the attorney’s bad faith. Id.; see also
United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999).
In its 2015 opinion, the Wisconsin appeals court did not
include the phrases “in itself” or “standing alone.” Even so,
its decision can reasonably be interpreted as describing a sim‐
ilar standard. Nothing in Minnick’s case required the state ap‐
peals court to explain that a miscalculation might be grounds
for deficient performance if there was evidence of bad faith.
Further, Minnick did not present any evidence—besides the
incorrectly estimated sentence—to suggest that Walker per‐
formed deficiently.
The Wisconsin Court of Appeals determined that Minnick
knew at sentencing that the state court could impose the max‐
imum sentences, as well as that the term of initial confinement
No. 20‐3253 13
which Walker opined Minnick would receive was not a guar‐
antee. Minnick cites Walker’s newness to legal practice (two
years of experience when she represented Minnick) and the
difference between the initial confinement term she estimated
and the range in the presentence investigation report (10 years
versus 16–22½ years) and contends Walker acted unreasona‐
bly in her prediction. But Walker had worked on hundreds of
criminal cases before Minnick’s, including shooting cases,
and the federal district court provided examples of cases in
which defendants facing similar charges to Minnick’s re‐
ceived sentences that were within the range that Walker pre‐
dicted. And the state court did not conclude or suggest facts
that showed bad faith on Walker’s part in making her predic‐
tion. Even more, Walker gave reasons for her prediction in the
state court. She believed that because Minnick had no crimi‐
nal record, was 45 years of age, and was a military veteran
that he would receive a sentence far less severe than the max‐
imum.
Although Supreme Court decisions provide the relevant
lodestar for cases under AEDPA review, if a state court’s rea‐
soning largely follows circuit precedent, that is persuasive ev‐
idence the state court did not improperly apply the Supreme
Court caselaw. See Thill v. Richardson, 996 F.3d 469, 477 (7th
Cir. 2021) (“This ambiguity is not enough to demonstrate that
the court applied a standard contrary to clearly established
federal law.”) (internal quotation marks omitted). Because the
Wisconsin Court of Appeals’ resolution of this case was con‐
sistent with this court’s precedent, its decision was not con‐
trary to, or an unreasonable application of Strickland. What is
more, that a sentence miscalculation is not enough by itself to
demonstrate deficient performance is consistent with Strick‐
land’s presumption of deference to attorneys.
14 No. 20‐3253
The state appeals court did not unreasonably apply
Strickland when it concluded that Walker’s misjudgment of
Minnick’s likely sentence length, without more, could not es‐
tablish deficient performance. Under AEDPA, that decision is
due deference. So relief is not available to Minnick on his first
claim.
III
A
The district court handled Minnick’s second and third
claims in tandem. Because the Wisconsin Court of Appeals
viewed Minnick’s second claim against Walker through the
prism of his third claim for ineffective assistance of postcon‐
viction counsel, the district court reasoned that it must do so
as well. Yet, incongruously, the district court also rejected the
argument that Minnick’s second claim against Walker was
procedurally defaulted, concluding that the government had
waived that argument by failing to mention it in its opening
brief. That reasoning is contradictory. If Minnick’s second
claim was not procedurally defaulted, the question is whether
the Wisconsin Court Appeals adjudicated that claim on the
merits. If, however, this second claim was procedurally de‐
faulted, then only Minnick’s third claim for ineffective assis‐
tance of postconviction counsel would remain. What cannot
be true is that Minnick both did not procedurally default his
second claim and that we view it only in the context of his
third claim.
We address this contradiction by examining only Min‐
nick’s third claim for ineffective assistance of postconviction
counsel. Although this is what the district court did as well,
we do so for different reasons. The third claim is included in
No. 20‐3253 15
the certificate of appealability, our charge for this appeal. In
addition, although the district court concluded that the gov‐
ernment waived the procedural default argument, that court
essentially treated Minnick’s second claim—that Walker was
ineffective for not advising Minnick that he could withdraw
his plea before sentencing—as procedurally defaulted by not
viewing the claim on its own terms and by granting the cer‐
tificate of appealability on the third claim. The parties also ap‐
pear to treat the second claim as procedurally defaulted, and
they focus their arguments on the third claim. So we turn to
the merits of that third claim.
B
Minnick’s claim of ineffective assistance of postconviction
counsel is also subject to the double deference of Strickland
and AEDPA. See Shaw v. Wilson, 721 F.3d 908, 914 (7th Cir.
2013) (Strickland standard governs ineffective assistance of ap‐
pellate counsel). Initially, Minnick argues that the Wisconsin
Court of Appeals applied the wrong standard when it limited
its deficiency inquiry to whether the claim Zell failed to press
was clearly stronger than the argument he raised. Per Min‐
nick, that standard applies only to postconviction counsel’s
intentional decisions, not oversight, which Minnick submits
was the case here based on Zell’s testimony.
Nevertheless, the Supreme Court and this court employ
that same standard. See Davila v. Davis, 137 S. Ct. 2058, 2067
(2017) (“Declining to raise a claim on appeal, therefore, is not
deficient performance unless that claim was plainly stronger
than those actually presented to the appellate court.”);
Ramirez v. Tegels, 963 F.3d 604, 613 (7th Cir. 2020) (noting that
if an attorney “abandoned a nonfrivolous claim that was both
‘obvious’ and ‘clearly stronger’ than the claim[s] that [s]he
16 No. 20‐3253
actually presented, [her] performance was deficient, unless
[her] choice had a strategic justification”); Makiel, 782 F.3d at
898. These authorities do not admit of the distinction Minnick
advances between intent and negligence in postconviction
counsel’s decision making. See id. (at evidentiary hearing
appellate counsel “testified that she could not remember spe‐
cifically considering and rejecting these issues.”) (internal
quotation marks omitted). As the district court recognized,
the clearly stronger standard does not impermissibly add to
the Strickland test, but instead applies the deficiency prong in
the appellate context where counsel is encouraged to winnow
the issues selected for appeal. By applying the clearly stronger
standard, the Wisconsin Court of Appeals did not apply a test
that was contrary to clearly established law. Because the state
appeals court properly applied this standard, we limit our
analysis to the deficient performance prong of the Strickland
evaluation.
“[P]roving that an unraised claim is clearly stronger than
a claim that was raised is generally difficult ‘because the com‐
parative strength of two claims is usually debatable.’” Makiel,
782 F.3d at 898. The Wisconsin Court of Appeals concluded
that the unraised plea withdrawal claim was not clearly
stronger than the challenge to Walker’s advice on Minnick’s
likely sentence, giving two reasons. The first was its evalua‐
tion of the underlying claim on Walker’s sentencing advice.
The second was Zell’s understanding that Minnick would
have difficulty showing he had a “fair and just reason” for
withdrawing his plea before sentencing. See State v. Jenkins,
736 N.W.2d 24, 33 (Wis. 2007) (applying “fair and just reason”
standard to plea withdrawals before sentencing). Under Zell’s
reasoning, Walker did not perform deficiently in failing to ad‐
vise Minnick to file such a motion. To the contrary, Minnick
No. 20‐3253 17
would simply be expressing a desire to go to trial, which Wis‐
consin precedent says does not qualify as such a fair and just
reason. See State v. Garcia, 532 N.W.2d 111, 117 (Wis. 1995) (“A
fair and just reason is some adequate reason for defendantʹs
change of heart … other than the desire to have a trial.”) (in‐
ternal quotation marks omitted).
Minnick does not directly confront either of these reasons.
Rather, he contends his case is akin to those in which counsel
fail to consult their criminal defense client about the possibil‐
ity of taking an appeal. But in those decisions, the strength of
the underlying claim is not the main consideration; instead
“counsel has a constitutionally imposed duty to consult with
the defendant about an appeal when there is reason to think
either (1) that a rational defendant would want to appeal (for
example, because there are nonfrivolous grounds for appeal),
or (2) that this particular defendant reasonably demonstrated
to counsel that he was interested in appealing.” Flores‐Ortega,
528 U.S. at 480.
We are not persuaded by Minnick’s analogy to an attorney
failing to enter a notice of appeal. There, the proceedings end
if the defendant does not take an appeal; nothing is left for the
trial court to do. Here, the only change in circumstances Min‐
nick suggests should have triggered Walker’s duty to advise
him to withdraw his pleas was the distribution of the presen‐
tence investigation report. But such a report does not bind the
sentencing court. Everyone knew the latitude at sentencing
afforded to the prosecution—and, more importantly, to the
court—and Minnick confirmed this when he entered his no
contest pleas. Moreover, in instances too numerous to count,
a presentence investigation report recommends a sentence
longer than the term the sentencing court imposes. Under
18 No. 20‐3253
Minnick’s argument, if a presentence investigation report or
the possibility of a lengthy sentence is sufficient basis to with‐
draw a plea, that would invite substantial gamesmanship.
Minnick also argues that the unraised plea withdrawal
claim was clearly stronger than Zell’s challenge to Walker’s
advice on Minnick’s likely sentence because a presentencing
plea withdrawal motion is reviewed under a more deferential
standard than if made after sentencing. But just because the
standards differ based on the timing of the motion does not
suggest which ineffective assistance of counsel claim is
stronger. What matters is whether Walker, when the motion
had to be made, acted reasonably in not advising Minnick to
make it. As noted above, there are reasons to conclude Walker
acted within the scope of competent counsel in not advising
Minnick to so move.
It is not clear that any presentence plea withdrawal motion
that Minnick made would have succeeded. At most, it is de‐
batable whether such a motion is clearly stronger than the
sentencing advice argument Zell advanced. This case is not
like Shaw, in which an essentially frivolous sufficiency‐of‐the‐
evidence claim was raised, rather than counsel pressing a po‐
tentially meritorious statutory claim. Shaw, 721 F.3d at 915.
The state appeals court could reasonably conclude that
Walker would not think there was a fair and just reason for
Minnick to withdraw his no contest pleas at that stage of the
proceedings. No Wisconsin authority expressly holds that
this circumstance constitutes a fair and just reason to with‐
draw a plea. That renders weaker the unmade claim. Because
it is debatable whether the unraised claim was clearly
stronger, the state appeals court’s conclusion cannot be un‐
reasonable.
No. 20‐3253 19
Whether he would have succeeded in withdrawing his
pleas is beside the point, Minnick maintains, because he was
denied legal process. But at sentencing, the state court was not
bound by any previous recommendations, and Minnick could
argue that his sentence should be lower than the state or
presentence investigation report recommended. Minnick ad‐
mits he was fully aware that the state court had full sentencing
discretion and that the ultimate disposition was up to the
court. These facts all suggest that the claim attorney Zell
raised on the sentencing advice was arguably stronger than
an unraised plea withdrawal request.
The Wisconsin Court of Appeals did not unreasonably ap‐
ply the Strickland deficient‐performance prong when it con‐
cluded that a plea withdrawal claim was not clearly stronger
than the argument that his postconviction counsel advanced.
That decision is due the further deference of AEDPA. For
these reasons, Minnick was not incorrectly denied relief on
this claim.
* * *
Minnick’s postconviction claims fall short, even more so
given the deferential AEDPA standard. Accordingly, we AF‐
FIRM the judgment of the district court denying his request for
habeas relief.