Perry, Alonzo R. v. McCaughtry, Gary ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3867
ALONZO R. PERRY,
Petitioner-Appellant,
v.
GARY R. MCCAUGHTRY, WARDEN,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 1495—Lynn Adelman, Judge.
____________
ARGUED APRIL 2, 2002—DECIDED SEPTEMBER 23, 2002
____________
Before POSNER, MANION, and KANNE, Circuit Judges.
MANION, Circuit Judge. Alonzo Perry was convicted in
a Wisconsin state court as a “party to a crime” on several
counts, including first degree intentional homicide, and
was sentenced to life imprisonment. After pursuing di-
rect appeals and post-conviction proceedings in the state
court system, Perry filed a petition for habeas corpus re-
lief in federal district court, arguing that the Wisconsin
Court of Appeals had unreasonably applied federal law
in violation of his Sixth Amendment right to effective
assistance of counsel and his Fourteenth Amendment
right to due process. The district court denied his petition,
and Perry appeals. We affirm.
2 No. 01-3867
I. Factual & Procedural Background
In the early morning hours of August 13, 1995, Harry
Roberts was killed and two other men, Michael Moore
and Walter Parker, were injured in an armed robbery
and shooting incident outside of C.C. Havana’s tavern
in Milwaukee, Wisconsin. Three persons, Alonzo Perry,
Joenathon Burnley and Leugene Hampton, were arrested
and tried for their involvement in the crime. All three of
the accused were clearly involved in the crime. There is
some dispute as to the degree of involvement and who
actually pulled the trigger during the assault.
At the trial of Alonzo Perry, the State presented testimony
by the two wounded men, by a witness, Howard Thomas,
and by police officers Walsh and July, who had arrived
at the scene as the incident was occurring. Immediately
following the incident, Parker told detectives that he
had seen three men with masks come out of a field and
then run back into it after the shooting. Thomas testified
that he saw three men running from the scene. Moore
testified that he was at the bar with Roberts and Parker
that evening, that the three of them left the bar at clos-
ing and went to Roberts’ car, and that Moore got into the
passenger side while Roberts got into the driver’s side.
Moore explained that he then heard multiple gun-
shots coming from the sidewalk, saw the barrel of a gun
sticking through the window and closed his eyes. He felt
that he had been shot in the arm and heard the person
with the gun say, “This is a jack.” Moore testified that a
second person with a gun was standing behind the per-
son talking to him, and that the second person’s gun was
not pointed at the car. Moore further testified that the
first person asked for money and reached into his front
shirt pocket and took twenty dollars. He stated that the
second person said, “This isn’t enough money, shoot him
No. 01-3867 3
anyway.” Moore testified that he told the first person he
had more money in his shoe, and that the first person
then removed his (Moore’s) sock and the two men then
left. Moore testified that the weapon the first man pointed
at him looked like a nine millimeter weapon. Moore
further testified that he had heard two guns going off in
rapid sequence, that he wasn’t sure if both guns were
fired into Roberts’ car, and that he did not know whether
the shots from the second gun came from the second
person standing outside his door or from somewhere
else. All of the bullet casings found near the scene of the
shooting, and all of the bullets found in Roberts’ car and
in the victims, came from a nine millimeter gun. A single
.45 caliber bullet was lodged inside the radio of a car
parked in front of Roberts’ car. The evidence indicated
that the bullet had entered that car through the rear win-
dow.
Perry and Hampton were apprehended and arrested
close to the scene, and Burnley was apprehended and
arrested later. When Perry was found, he was carrying
a fully-loaded magazine for a .45 caliber handgun and
he was missing a shoe. Police recovered his shoe in a
nearby yard and they found a .45 caliber handgun near
the shoe. The .45 handgun had the capacity to hold eight
rounds, seven in the magazine and one in the chamber.
When the gun was found, the magazine contained six
rounds and there was one unfired cartridge in the cham-
ber. The nine millimeter weapon itself was never found.
The next morning, however, a nine millimeter magazine
was found near the spot where Perry and Hampton had
been apprehended.
In the days following his arrest, Perry made two separate
statements to detectives which were also admitted at his
trial. In the first statement, he asserted that Burnley was
4 No. 01-3867
the primary actor in the shooting, that Burnley had the
nine millimeter weapon, that he had fired all the shots
into the car and into the victims and that his brother,
Hampton, who was present at the scene, was not in-
volved in the incident. In his second statement, he stated
that he and Burnley arrived at the bar around 1:45 a.m.
and that Burnley had Hampton’s nine millimeter handgun
and was taking it to Hampton, who was already at the
club. Perry also admitted that he was carrying his own .45
weapon. Perry further stated that, before going into the
bar, Burnley left the nine millimeter under the seat of the
car, as the tavern had a metal detector, but that Perry
kept his gun with him since he knew he could not get
into the bar since he was only nineteen. Perry explained
that he waited outside for Burnley and Hampton and
they came out around 2:08 a.m. He further stated that
the three of them walked to Burnley’s car and “got ready
to rob anyone that was walking down the street with
some gold on.” They got into the car, and all put on
masks or skull caps. Hampton then got the gun from un-
derneath the seat. While watching for victims, Hampton
pointed to three men walking toward a car parked be-
hind them and stated “Man, let’s get them. Let’s get them.”
In recounting the shooting this time, however, Perry now
stated that Hampton was the primary actor and that Hamp-
ton had the nine millimeter weapon and fired all of the
shots into the car. He also stated that Burnley was in-
volved as a searcher, but was unarmed. In both state-
ments, Perry admitted that he was present, was armed with
a .45 handgun, that he fired the gun once, into the air,
but not toward any car or person and that he did not
know that any actual shooting of persons was going to
take place.
On August 17, 1994, Perry was charged with one count
of first degree intentional homicide as a party to the
No. 01-3867 5
crime, under Wis. Stat. §§ 940.01(1) and 939.05; two
counts of attempt to commit first degree intentional homi-
cide as a party to the crime, under Wis. Stat. §§ 940.01(1),
939.32 and 939.05; and one count of armed robbery as a
party to the crime, under Wis. Stat. §§ 943.32(1)(a) and
939.05. The State’s theory at trial was that Perry agreed
to participate in an armed robbery and was therefore
guilty of each count as a “party to the crime,” because
under Wisconsin law a “party to a crime” is liable for the
“natural and probable consequences” of a crime, here
armed robbery. See Wis. Stat. §939.05(2)(c). Thus, the
State argued that the intentional murder of Roberts and
the attempted intentional murders of Moore and Parker
were the natural and probable consequences of an armed
robbery.
Perry’s defense theory was that intentional murder was
not the natural and probable consequence of armed rob-
bery, and thus at most he was guilty as a “party to a crime”
of felony murder, which in Wisconsin occurs where a
person causes the death of another during the commis-
sion of a felony, see Wis. Stat. 940.03. To support this
theory, Perry’s counsel argued that Perry did not have the
requisite intent to kill and had no advance knowledge
that anyone would be shot during the robbery. Based
on this theory, at the jury instruction conference, de-
fense counsel requested the court to instruct the jury on
felony murder, as well as on first and second degree
reckless homicide. The State objected to the latter instruc-
tions but did not object to a felony murder instruction,
and the court agreed to give the jury that instruction,
although it refused to give instructions on first or
second degree reckless homicide. It is at this point we
encounter the pivotal issue in this appeal. In requesting the
felony murder instruction, Perry’s counsel did not spe-
cifically discuss the need for the “party to a crime” in-
6 No. 01-3867
struction to reference the felony murder instruction, and,
as a result, the “party to a crime” instruction was only
given with reference to the intentional homicide charge,
and did not refer to the alternative, lesser included of-
fense of felony murder.
The end result was that the trial court instructed the
jury in the following manner: first, the instruction for the
substantive offense of first degree intentional homicide
and the lesser included offense of felony murder; second,
the instruction for attempted first degree intentional homi-
cide; third, the instruction for armed robbery; and last,
the “party to a crime” instruction, specifically referencing
1
the first degree intentional homicide charge.
On February 3, 1995, the jury convicted Perry of first
degree intentional homicide as a party to the crime, two
counts of attempt to commit first degree intentional homi-
cide as a party to the crime, and one count of armed rob-
bery as a party to the crime. On March 25, 1995, the
state court judge sentenced him to life imprisonment on
Count One, with eligibility for parole to occur in not
less than 45 years, to 20 years on Count Two, to be served
consecutively, and 20 years on Count Three to be served
concurrently. On Count IV, Perry was sentenced to 40
years to be served consecutively to the other counts, but
that sentence was stayed. Additionally, Perry received 15
years of probation consecutive to Counts One, Two and
Three.
Perry appealed his conviction in state court, raising
issues which are not part of this appeal. On September 10,
1996, the Wisconsin Court of Appeals affirmed his con-
1
The relevant parts of the jury instructions are attached as an
appendix to the opinion.
No. 01-3867 7
victions. The Wisconsin Supreme Court denied his peti-
tion for review on November 20, 1996. Perry then filed
for post-conviction relief in Wisconsin state circuit court,
raising several post-conviction claims, including (1) wheth-
er his trial counsel was ineffective for failing to ensure
that a jury instruction on “party to a crime” liability refer-
enced the felony murder charge; and (2) whether the
Wisconsin jury instruction on the “natural and probable
consequences” theory of “party to a crime” liability im-
permissibly removed the burden from the State of proving
the defendant’s intent to kill. As to his first argument,
Perry contended that, since the evidence was undis-
puted that he did not shoot Roberts, the jury could not
have found him guilty of felony murder according to
the jury instructions provided. The only choice left to the
jury, Perry argued, was to convict him of intentional homi-
cide as a “party to a crime.” However, if the jury had
been given a “party to a crime” instruction in relation to
the felony murder instruction, Perry believes that the
jury might have convicted him on that lesser charge in-
stead. As to his second argument, Perry argued that an
intentional murder was not a “natural and probable con-
sequence” of armed robbery, and that the “party to a
crime” jury instruction incorporating that theory relieved
the State of its burden to prove his intent.
The state court denied all of Perry’s claims, holding
that under State v. Escalona-Naranjo, 517 N.W.2d 157
(Wis. 1994), he could not raise constitutional issues for the
first time in post-conviction relief without demonstrat-
ing sufficient cause for not having raised the issues on
direct appeal. Id. at 164. Concluding that he had not dem-
onstrated such cause, the court held that he had proce-
durally defaulted those issues. Perry appealed, and the
Court of Appeals also denied his claims for relief. Perry
filed a timely petition for review to the Wisconsin Su-
8 No. 01-3867
preme Court, which denied his request on December 20,
1999.
Perry filed a petition for habeas relief under Section
2254(d) in federal district court, raising the same issues.
The district court concluded that Perry had proce-
durally defaulted the claim that the “natural and prob-
able consequences” jury instruction violated his right to
due process, and therefore denied him habeas relief on
that basis. Regarding Perry’s ineffective assistance of
counsel claim, the district court concluded that the State
had waived its argument that Perry procedurally defaulted
this claim by failing to address it in its brief, and there-
fore proceeded to address the merits. In doing so, the
district court concluded that the Court of Appeals had
not unreasonably applied Strickland v. Washington in
denying Perry relief, and therefore denied his claim
for habeas relief on this ground as well. The district court
noted that it would have been preferable for the “party
to a crime” instruction to specifically refer to felony mur-
der by stating that Perry could be guilty of felony murder
if he or another fired the fatal shot, but concluded that,
“in the context of the entire trial, including the evi-
dence presented, the arguments of both sides, and the
totality of the jury instructions, . . . counsel’s failure to
request a more precisely tailored instruction [did not
cause] prejudice to [Perry] as required by Strickland.”
Accordingly, the district court denied Perry habeas relief
2
on all grounds. Perry filed a motion for a certificate of
appealability, which the district court granted. Perry now
appeals.
2
Perry had also argued that his trial counsel was ineffective
for failing to object to allegedly prejudicial statements by the
prosecutor during closing argument. That argument is not part
of this appeal, and we need not address it.
No. 01-3867 9
II. Analysis
A. Applicable Standards
Perry argues that he is in custody in violation of the
Sixth and Fourteenth Amendments to the United States
Constitution. Specifically, he argues that he was denied
ineffective assistance of counsel under the Sixth Amend-
ment and Strickland v. Washington, 466 U.S. 668 (1984),
because his trial counsel failed to ensure that a jury in-
struction on “party to a crime” liability was integrated
with the jury instruction on the lesser included offense
of felony murder. Further, he argues that he was denied
due process under the Fourteenth Amendment, Sandstrom
v. Montana, 442 U.S. 510 (1979) and In re Winship, 397
U.S. 358 (1972) because the trial court used a jury instruc-
tion on the “natural and probable consequences” theory
of “party to a crime” liability, which he claims imper-
missibly shifted the burden of proof on intent to him.
In reviewing the district court’s decision to deny habeas
corpus relief, we review issues of law de novo and issues
of fact for clear error. See, e.g., Todd v. Schomig, 283 F.3d
842, 848 (7th Cir. 2002). A defendant may only obtain
habeas relief from a state court conviction where he estab-
lishes that the state court’s adjudication “(1) resulted in
a decision that was contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based upon an un-
reasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” See 28
U.S.C. §§ 2254(d).
Under the “unreasonable application” clause of Section
2254(d)(1), “a federal habeas court may not issue the writ
simply because that court concludes in its independent
10 No. 01-3867
judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.”
Williams v. Taylor, ___ U.S. ___, 120 S. Ct. 1495, 1522 (2000)
(O’Connor, J. concurring, but writing for the court). Thus,
we will “defer to a reasonable state court decision.” Ander-
son v. Cowan, 227 F.3d 893, 897 (7th Cir. 2000).
Moreover, federal habeas relief is only available to a
person in custody in violation of the United States Consti-
tution or laws or treaties of the United States, see 28 U.S.C.
§§ 2254(a), and is unavailable to remedy errors of state
law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (“it
is not the province of a federal habeas court to reexa-
mine state-court determinations on state-law questions”).
A federal court will also not review a question of federal
law decided by a state court if the decision of the state
court rests on a state procedural ground that is indepen-
dent of the federal question and adequate to support the
judgment. Stewart v. Smith, ___ U.S. ___, 122 S. Ct. 2578,
2580-81 (2002); Coleman v. Thompson, 501 U.S. 722, 729
(1991). Against this backdrop, we consider Perry’s claims.
B. Alleged Constitutional Violations
1) Sixth Amendment & Strickland
First, Perry argues that the Wisconsin Court of Appeals’
determination that he was not deprived of effective as-
sistance of counsel was unreasonable in light of Strickland
v. Washington, 466 U.S. 668 (1984). The rule set forth in
Strickland is “clearly established Federal law,” see 28 U.S.C.
§§ 2254(d)(1), and provides that Perry must establish that
(1) his attorney’s performance fell below an objective stan-
dard of reasonableness, and (2) the deficient performance
caused him prejudice. 466 U.S. at 687. Specifically, Perry
No. 01-3867 11
argues that his trial counsel was ineffective for failing
to ensure that the jury instruction on “party to a crime”
liability included a reference to the lesser included of-
fense of felony murder. As noted, the jury instruction
on “party to a crime” liability was only integrated with
the first degree intentional homicide charge, and not
with any of the others, including felony murder. This omis-
sion, Perry contends, was fatal because his defense
theory was that, at most, he was guilty of felony murder,
as a party to the crime, not of first degree intentional
homicide. However, since the “party to a crime” instruc-
tion did not reference the lesser included offense of fel-
ony murder, Perry argues that his theory was wasted on
the jury because, by not being properly instructed, it was
unable to find him guilty of the lesser offense, even
though they may not have been convinced beyond a
reasonable doubt that he was guilty of first degree inten-
tional homicide.
The Wisconsin Court of Appeals recited the appropri-
ate Strickland test and, in concluding that Perry’s counsel
had not been ineffective, reasoned that the jury instruc-
tions in their entirety properly set forth the law on “party
to a crime” liability. Perry, however, argues that this
is unreasonable because the mere fact that the “party to
a crime” liability instructions were given for the first de-
gree intentional murder charge cannot cure the defect
with respect to the felony murder charge. Because we
have concerns about the propriety of these instructions
(at a minimum, they were not clearly drafted), we will as-
sume for purposes of this decision that Perry’s counsel
was deficient in failing to object to them. However, that
does not end the inquiry. Rather, we must also deter-
mine whether the Court of Appeals was unreasonable
in concluding that the jury could have independently
determined that Perry was guilty of first degree inten-
12 No. 01-3867
tional homicide, and therefore that Perry was not prej-
udiced by the instructions.
Initially, Perry argues that the Court of Appeals, by
considering whether the jury could have independently
determined that Perry was guilty of first degree inten-
tional homicide, improperly applied a “sufficiency of the
evidence” standard, as opposed to the Strickland stan-
dard. We disagree. Under Strickland’s prejudice prong,
Perry must establish “that there is a reasonable probabil-
ity that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” 466 U.S. at
694. By considering whether the jury could have indepen-
dently reached the verdict it did, the Court of Appeals
was merely reaching the conclusion that any error by
Perry’s counsel was not prejudicial. Therefore, it applied
the proper standard. We now consider whether its ap-
plication was unreasonable.
As noted above, under Strickland, to establish prejudice,
Perry must prove there is a reasonable probability that,
but for the counsel’s failure to object to the improper in-
struction, the result of the proceeding would have been
different. Perry argues that there is a reasonable probabil-
ity that the jury believed it could not impose felony mur-
der because of the improper instruction, but not wanting
to let him completely off the hook, found him guilty of
first degree intentional homicide. Given the instructions
in their entirety, the testimony presented to the jury,
the arguments of both the State and Perry’s counsel and
the overwhelming evidence of Perry’s guilt, we con-
clude that it is not reasonable to conclude that the instruc-
tion led the jury to believe that it could convict Perry of
felony murder only if he directly caused the death of the
victim. See Cupp v. Naughten, 414 U.S. 141, 146-47 (1973)
(courts must review instructions in the “context of the
No. 01-3867 13
overall charge” which includes “testimony of witnesses,
argument of counsel, receipt of exhibits in evidence, and
instruction of the jury by the judge”). The charges, the
attorneys’ arguments, Perry’s own statements offered into
evidence and the jury instructions as a whole all spoke in
terms of Perry’s culpability on each count as a party to the
crime. Thus, it was absolutely clear at trial that Perry was
3
being charged, on all counts, as a party to the crime.
Furthermore, the jury was specifically instructed not to
reach the felony murder charge if it found Perry guilty of
first degree intentional homicide. We presume that juries
follow instructions. See United States v. Miller, 276 F.3d 370,
375 (7th Cir. 2002). Thus, even assuming that the party to
a crime instruction should have referenced the felony mur-
der instruction, once the jury concluded that Perry was
guilty of first degree intentional homicide, as a party to
the crime, the jury never needed to reach the felony mur-
der instruction. Under these circumstances, there is no
reasonable probability that, but for counsel’s error in fail-
ing to object to the jury instruction, the result of the pro-
ceeding would have been different. See Strickland, 466 U.S.
at 694 (a “reasonable probability” is a “probability suffi-
cient to undermine confidence in the outcome”). For
these reasons, we conclude that the Court of Appeals
reasonably concluded that Perry did not suffer prejudice
because of the jury instructions.
3
We note that the jury also found Perry guilty of two counts
of attempt to commit intentional homicide even though there
were no “party to a crime” liability instructions given with re-
spect to those charges. However, interestingly, Perry has never
challenged his trial counsel’s failure to object to incorporat-
ing “party to a crime” instructions with the substantive charges
of attempt to commit intentional homicide.
14 No. 01-3867
2. Due Process Rights
Next, Perry argues that the Wisconsin Court of Appeals
erred because the trial court’s use of Wisconsin’s pattern
jury instruction on the “natural and probable consequences”
theory of “party to a crime” liability impermissibly shifted
the burden of proof to him in violation of his Fourteenth
Amendment due process rights as set forth in Sandstrom
v. Montana, 442 U.S. 510 (1979), and In re Winship, 397 U.S.
358 (1972).
As previously noted, we may not review a federal claim,
such as Perry’s due process claim, if the state court rests
its decision on a state procedural ground that is indepen-
dent of the federal question and adequate to support
the judgment. Stewart, 122 S. Ct. at 2581. Wisconsin has a
procedural rule that bars a criminal defendant from rais-
ing, in a postconviction motion, a constitutional issue
that could have been, but was not, raised on direct ap-
peal from his conviction, unless the defendant can offer a
sufficient reason for not asserting the issue on his direct
appeal. See Escalona-Naranjo, 517 N.W.2d at 184-85. Al-
though this court has recognized the Escalona-Naranjo rule
as an adequate state ground, that question is not at issue
here. See Liegakos v. Cooke, 106 F.3d 1381 (7th Cir. 1997). Per-
ry’s argument is that the Court of Appeals’ reliance on
this ground was not independent of the federal question.
In support of this position, Perry cites Harris v. Reed, 489
U.S. 255 (1989), wherein the Supreme Court held that
the “adequate and independent state ground” doctrine
does not bar habeas review of the federal claim unless
the state court actually relied on the procedural default as
an independent basis for its decision. 489 U.S. at 261-62.
To be an independent basis for the state court’s ruling,
“the state court therefore must have ‘clearly and expressly’
relied on procedural default as the basis of its ruling.” Braun
No. 01-3867 15
v. Powell, 227 F.3d 908, 912 (7th Cir. 2000). Perry claims
that the state Court of Appeals did not clearly and ex-
pressly deny his due process claim on procedural default
grounds, and therefore that basis cannot serve as an inde-
pendent and adequate state ground.
To understand his argument a little additional detail is
necessary. It is undisputed that Perry failed to raise his
due process claim on direct appeal; the first time he
raised it was in his motion for post-conviction relief in
Wisconsin state court. As previously noted, on Perry’s
petition for post-conviction relief, the Wisconsin state
court denied all of Perry’s claims, holding that he had
procedurally defaulted them under the Escalona-Naranjo
rule and that he had not demonstrated sufficient reason
for his failure to raise the issues on direct appeal. Nev-
ertheless, the state court went on to consider the merits
of Perry’s Sixth Amendment claim, reviewed the record,
and concluded that the claim lacked merit and that his
counsel’s performance was not deficient or prejudicial.
The state court did not reach the merits of Perry’s due
process claim. Perry appealed, and the Court of Appeals
also denied his claims for relief. The Court of Appeals
agreed with the state court that Perry had procedurally
defaulted his claims and that Perry offered only conclu-
sory allegations for his failure to raise the issues on
direct appeal. Reciting the Supreme Court’s test in Strick-
land v. Washington, 466 U.S. 668 (1984), the Court of Appeals
further held that Perry’s trial counsel was not ineffective
because the jury instructions, in their entirety, properly
set forth the law on “party to a crime” liability as it relates
to felony murder. Next, the Court of Appeals concluded
that, based on the evidence presented at trial, the jury
could have independently determined that Perry commit-
ted first degree intentional homicide as a party to a crime,
and therefore Perry had not been prejudiced. While af-
16 No. 01-3867
firming the trial court’s order in its entirety, the Court of
Appeals did not specifically address Perry’s argument
regarding a violation of his due process rights. In its
analysis, the district court reasoned that the Court of
Appeals had merely overlooked the due process claim,
and thus concluded that it was clear that Perry had pro-
cedurally defaulted the argument. Perry argues, however,
that the Court of Appeals did not actually rely, through
a clear and express statement, on the Escalona-Naranjo
procedural rule and that its silence on the due process
claim indicates that it did not rest its decision on an “in-
dependent and adequate” state procedural ground.
However, a close review of the Court of Appeals’ deci-
sion reveals that it did clearly and expressly rest its deci-
sion regarding Perry’s due process claim on procedural
default. After restating all of Perry’s arguments, includ-
ing his due process argument, the Court of Appeals stated
that the “circuit court denied [Perry’s postconviction]
motion without a hearing, finding that the claims were
barred by Escalona-Naranjo, and that the allegations in the
motion did not state a sufficient reason to overcome that
bar.” The court then recited the Escalona-Naranjo standard
and concluded “[w]e agree with the State that since Perry
has already had a direct appeal in this case, in order to
succeed here, he must show that postconviction counsel
was ineffective for failing to challenge the effectiveness
of trial counsel in either a postconviction motion on or di-
rect appeal.” The Court of Appeals then addressed the
merits of Perry’s ineffective assistance of counsel claim,
and in concluding that trial counsel did not err in failing
to object to the jury instructions, necessarily concluded
that Perry had not established that his postconviction coun-
sel was ineffective for failing to challenge the trial counsel’s
conduct. The Court of Appeals then held that, under the
Escalona-Naranjo rule, Perry had not established “suffi-
No. 01-3867 17
cient reason” for his procedural default. Thus, while the
Court of Appeals did not address Escalona-Naranjo’s im-
pact with specific reference to Perry’s due process argu-
ment, it is still clear from its decision that the court con-
sidered the argument to have been procedurally defaulted.
Therefore, while it is possible that the Wisconsin Court
of Appeals could have been more precise, we find that
its statements, when considered in context, are suffi-
ciently plain to constitute reliance on the independent
and adequate state law ground of procedural default.
III. Conclusion
For the reasons stated herein, we conclude that Perry did
not establish that the Wisconsin Court of Appeals unrea-
sonably applied the Strickland v. Washington test in deter-
mining that Perry’s Sixth Amendment right to counsel had
not been violated, and that Perry’s argument that the jury
instructions violated his due process rights under the
Fourteenth Amendment is barred by an independent and
adequate state ground, procedural default. Therefore, we
affirm the decision of the district court to deny Perry’s
petition for habeas corpus relief under 28 U.S.C. § 2254.
18 No. 01-3867
Appendix
The jury instructions provided, in relevant part:
The defendant in this case is charged with first degree
intentional homicide. You must first consider whether
the defendant is guilty of that offense. If you are not
satisfied that the defendant is guilty of first degree
intentional homicide, you must consider whether or
not the defendant is guilty of felony murder, which
is a less serious degree of criminal homicide.
***
Intentional homicide and felony murder require that
the defendant caused the death of the victim. First
degree intentional homicide requires the State to prove
the additional fact that the defendant acted with the
intent to kill. Felony murder requires the State to prove
that the defendant caused the death of Harry Roberts
while committing or attempting to commit the crime
of armed robbery.
The elements necessary to constitute each crime will
now be defined for you in greater detail.
[The court then gave the jury substantive instructions
on first degree intentional homicide, felony murder and
attempt to commit first degree intentional homicide. Each
instruction was phrased in terms of the defendant’s ac-
tions or intent.]
***
[The court then proceeded to give the “party to a crime”
instruction, as follows:]
The criminal code of Wisconsin provides that whoever
is concerned in the commission of a crime may be
charged with and convicted of the commission of a
crime although he did not directly commit it.
No. 01-3867 19
The State contends that the defendant was concerned
in the commission of the crime of armed robbery as a
member of [a] conspiracy or as an aider and abetter.
***
Before you may find the defendant guilty, you must
be satisfied beyond a reasonable doubt that the defen-
dant was a member of a conspiracy or aided and
abetted to commit the crime of armed robbery, that
first degree intentional homicide was committed in
pursuance of armed robbery, and that under the cir-
cumstances, first degree intentional homicide was a
natural and probable consequence of armed robbery.
First, consider whether the defendant was a member of
a conspiracy or aided and abetted to commit the crime
of armed robbery. . . .
Next consider whether the crime of first degree inten-
tional homicide was committed.
First degree intentional homicide, as defined in the
Criminal Code of Wisconsin, is committed by one who
causes the death of another human being with intent
to kill that person or another. The State must prove
by evidence which satisfies you beyond a reasonable
doubt that the following two elements were present.
First, that the defendant or someone he was working with
caused the death of Harry Roberts.
Second, that the defendant or someone he was working
with intended to kill Harry Roberts.
Mere presence at the scene of the crime and knowledge
that a crime is being committed are not sufficient to
establish that the defendant aided and abetted the
crime, unless you find a reasonable doubt that the
20 No. 01-3867
defendant was a participant and not merely a knowing
spectator.
***
If you are satisfied beyond a reasonable doubt that the
defendant is a member of a conspiracy or aided and
abetted the commission of armed robbery, that the
crime of first degree intentional homicide was commit-
ted, and that under the circumstances first degree
intentional homicide was a natural and probable
consequence of armed robbery, you should find the
defendant guilty.
(Emphasis added.)
No. 01-3867 21
POSNER, Circuit Judge, dissenting. Perry’s lawyer com-
mitted a fearful mistake at the trial, though not because
he told the jury in his closing argument that they should
convict his client of felony murder, which is second de-
gree in Wisconsin, rather than of first-degree murder. He
said this because the felony-murder charge was pat and
because if convicted only of felony murder and armed
robbery Perry would have been eligible for parole after 10
years, while if convicted of first-degree murder, as he was,
he would be sentenced to life in prison without possibil-
ity of parole; and so he was. But, fatally, his lawyer failed
to object to an instruction that, if taken seriously—and
we have no reason to doubt that it was—precluded the
jury from convicting Perry of felony murder and, in the
circumstances, foredoomed him to be convicted of first-
degree murder. For the felony-murder instruction re-
quired the jury to find, in order to convict Perry of felony
murder, that he had caused the murder victim’s death.
The evidence was uncontradicted that the victim was
killed by another of the robbers, not Perry. The entire
point of felony murder is that the felon who did not “cause”
a death, in the ordinary meaning of the word, neverthe-
less is guilty of (a form of) murder. Perry was charged
with and convicted of first-degree murder under Wis-
consin’s “party to a crime” statute, which makes an aider
and abettor or a conspirator liable not only for the
crimes that he agreed to assist with or participate in
but also for any other crime that was the “natural and
probable” consequence of the crime that he aided an
accomplice to commit or that he conspired to commit. Wis.
Stat. § 939.05(2)(c). The party-to-a-crime and felony-mur-
der instructions should have been integrated in the
sense of being presented to the jury with a clear indica-
tion of the difference between the two crimes: the differ-
ence is not, as the instruction stated, that only felony
22 No. 01-3867
murder requires proof that the defendant “caused” the
death of the victim. The causation requirements of the
two statutes are in fact the same. The difference is that
the party-to-a-crime statute requires that the death
have been a “natural and probable” consequence of the
crime that the defendant conspired to commit or aided
and abetted the commission of.
It is highly probable that the jury was confused by the
wording of Wisconsin’s felony-murder statute, the gist
of which was repeated in the instructions: “Whoever
causes the death of another human being while commit-
ting or attempting to commit a crime specified in [var-
ious statutes, including the statute criminalizing armed
robbery] may be imprisoned for not more than 20 years
in excess of the maximum period of imprisonment pro-
vided by law for that crime or attempt.” Wis. Stat. § 940.03
(emphasis added). A layperson would not without in-
struction understand that “causes” in the statute and in-
structions is a technical term, meaning only that the de-
fendant’s conduct “was a substantial factor in bringing
about the death,” so that, for example, a defendant can be
found guilty of felony murder even if the victim of the
felony fired the fatal shot, e.g., State v. Oimen, 516
N.W.2d 399, 404 (Wis. 1994); see also State v. Rivera, 516
N.W.2d 391, 392 (Wis. 1994), because, had it not been for the
felony, the occasion for the victim to defend himself would
not have arisen. This should have been but was not ex-
plained to the jury. The jury was left to assume that
“causes” was being used in its ordinary sense, the sense
in which Perry—who neither intended the victim’s death
nor did anything to bring it about—did not cause it.
Buried deep in the instructions was the statement that
“before the relation of cause and effect can be found to
exist, it must appear that the defendant’s act was a sub-
No. 01-3867 23
stantial factor in producing the death.” But “substantial
factor” was not explained; and, anyway, so deep was
the burial that neither the lawyers nor the judges involved
in this case have ever suggested that its inclusion would
have disabused the jury of the misconception that to find
Perry guilty of felony murder they would have had to find
that he pulled the trigger.
The decision by the Wisconsin court of appeals affirm-
ing Perry’s conviction discussed the adequacy of the in-
structions in only the most perfunctory manner. The dis-
trict judge did a little better, saying that the fact that the
defense lawyer argued in his closing argument without
objection that his client should be found guilty only of
felony murder, coupled with the fact that the judge did
instruct the jury on felony murder, showed that the jury
must have realized that it could acquit Perry of the party-to-
a-crime charge and convict him of felony murder. But
then the district judge contradicted himself, for after not-
ing that the trial judge had instructed the jury not to
consider the felony-murder charge unless it could not
unanimously agree that Perry was guilty of the more ser-
ious charge, he said that “there is a strong presumption
that juries follow the instructions they are given.” Had
the jury followed the instructions as they could be ex-
pected to be understood by laypersons, and so as they
undoubtedly were understood by the members of the jury,
it would not have thought itself free to convict Perry
of felony murder, because he was not the triggerman.
We should be realistic about the jurors. They knew from
the closing arguments that Perry’s lawyer wanted them
to convict Perry of felony murder. And it is entirely pos-
sible that in their initial discussion of the party-to-a-crime
charge they were not unanimously of the opinion that he
was guilty of it. But when they then in accordance with
24 No. 01-3867
the judge’s instruction on the sequence of their consider-
ation turned to the felony-murder charge and read the
instructions, they would have thought they could not
convict him of felony murder because he had not been
the “cause” of the victim’s death as they would have
understood “cause” to mean in the absence of explanation.
At that point their choice would have been between acquit-
ting Perry of all murder charges or convicting him of party-
to-a-crime first-degree murder, and faced with that choice
any initial doubters may well have swung around to
agreeing to convict him of that charge after all.
Had Perry’s lawyer not told the jury that they should
convict his client of felony murder, it would be arguable
that his failure to object to the felony-murder instruction
was tactical—that he was going for broke, hoping that the
jury, if forced to choose between convicting Perry of first-
degree murder and of armed robbery, would convict him
only of the latter. That is not always a reasonable strategy.
“The spectrum of counsel’s legitimate tactical choices
does not include abandoning a client’s only defense in
the hope that a jury’s sympathy will cause them to misap-
ply or ignore the law they have sworn to follow. By fail-
ing to tender instructions that would allow the jury to
consider Barnard’s justification and denying them the op-
tion of finding him guilty of a lesser offense, trial counsel
defaulted in his obligation to Barnard.” United States ex
rel. Barnard v. Lane, 819 F.2d 798, 805 (7th Cir. 1987). But
it might have been reasonable here. Perry didn’t pull
the trigger, or agree that anyone would be shot, and
so he was guilty of first-degree murder, we recall, only
if the jury found that the killing was the “natural and
probable” consequence of the armed robbery. Wis. Stat.
§ 939.05(2)(c); State v. Glenn, 545 N.W.2d 230, 235-36 (Wis.
1996); State v. Ivy, 350 N.W.2d 622, 626 (Wis. 1984) (“proof
of intent is not required for conviction of the differ-
No. 01-3867 25
ent offense if the offense was the natural and probable
consequence of the intended crime to which the defen-
dant was a party”); Piaskowski v. Bett, 256 F.3d 687, 694
(7th Cir. 2001) (“under Wisconsin law, a conspirator is
responsible for any crime committed as a natural and
probable consequence of the intended crime”). The jury
might not have found that the murder was a natural
and probable consequence of the armed robbery, and then
it would have had to acquit Perry if it also though errone-
ously believed that he could not be guilty of felony mur-
der because he had not “caused” the victim’s death. But
the lawyer did not adopt the go-for-broke strategy. He
must have believed that the jury wanted to assign some
responsibility to Perry for the death. That must have
been why he told the jury to convict Perry of felony mur-
der—but in doing this without objecting to the instruction
he was telling them to do the impossible.
The lawyer’s mistake in failing to object to an instruc-
tion that nullified the lesser-included instruction that he
himself thought might spare his client the maximum sen-
tence possible in Wisconsin (a state that does not have
capital punishment) was gross, palpable, and, once the
alternative characterization as a tactic is rejected, as it must
be—for all the lawyer did was shoot his client in the
foot—brought his representation of his client below the
minimum standard of competence required of a criminal
defendant’s lawyer. There is no argument that he re-
deemed himself by above-average advocacy in some other
part of the trial.
That leaves only the question whether the mistake was
prejudicial to Perry in the sense that it may well have
changed the outcome of the trial. The answer is yes. A jury
given a choice between finding Perry guilty of first-
degree murder and finding him guilty of felony murder
26 No. 01-3867
might well have chosen the latter course. Indeed, that
possibility is inherent in the judge’s decision to instruct
the jury on felony murder, since a defendant is not en-
titled to an instruction for which there is no support in
the evidence.
The judge might have been mistaken, however; and if
only a lawless jury would have acquitted Perry of first-
degree murder the mistake in the instruction on felony-
murder was not prejudicial in the relevant sense. Strickland
v. Washington, 466 U.S. 668, 694-95 (1984); Jones v. Jones, 163
F.3d 285, 306-07 (5th Cir. 1998); Flamer v. Delaware, 68 F.3d
710, 728 (3d Cir. 1995). But a finding that the death of the
victim was a natural and probable consequence of the
armed robbery, the finding required to condemn Perry of
first-degree murder, while likely, see State v. Balistreri,
317 N.W.2d 493, 501-03 (Wis. 1982); State v. Asfoor, 249
N.W.2d 529, 537-38 (Wis. 1977); State v. Cydzik, 211 N.W.2d
421, 429-30 (Wis. 1973), was not inevitable. It was for the
jury to decide what is “natural and probable.” State v. Ivy,
supra, 350 N.W.2d at 628. Only .26 of 1 percent of all rob-
beries result in a death (Enmund v. Florida, 458 U.S. 782, 799-
800 and nn. 23-24 (1982), says .43 of 1 percent, but was
based on the 1980 Uniform Crime Reports, and my figure
is based on the 2000 UCR), and since 60.6 percent of all
robberies are armed robberies (same source), even if all
deaths in robberies occur in armed robberies only .42 of 1
percent of such robberies (that is, 4 out of every 1,000)
result in the victim’s death. The percentage would rise to
.63 (6 per thousand) if all victim deaths occurred in armed
robberies in which a gun was used, which are 40.9 percent
of all robberies. But clearly that would be an exaggera-
tion, since armed robberies are defined as robberies com-
mitted with a dangerous weapon. Whether .525 of 1 per-
cent (the result of averaging .42 percent and .63 percent)—
No. 01-3867 27
5 in 1,000—is high enough to make death a natural and
probable consequence of armed robbery is a question
on which different juries might give different answers
without being thought lawless. “In order to determine
whether the death was a natural and probable conse-
quence of the robbery and whether it occurred during the
robbery, it was necessary to hear evidence concerning
the circumstances of the robbery.” Briggs v. State, 251
N.W.2d 12, 20 (Wis. 1977); cf. State v. Pierson, 530 N.W.2d
784, 789-90 and n. 3 (Minn. 1995).
One finds intimations in Wisconsin cases, and in cases
in our court interpreting the party-to-a-crime statute, that
the victim’s death is a natural and probable consequence
of armed robbery as a matter of law. State v. Oimen, supra,
516 N.W.2d at 406-07; Wilson v. State, 208 N.W.2d 134,
143 (Wis. 1973); Solles v. Israel, 868 F.2d 242, 251 (7th
Cir. 1989); Feela v. Israel, 727 F.2d 151, 158 (7th Cir. 1984).
But in Wilson the defendant was the triggerman and in
Solles the triggerman had said to the defendant “Should
I shoot him?” and the defendant had responded, “Only if
you have to.” 868 F.2d at 244. Oimen explains that the “nat-
ural and probable” formula was adopted as a substitute
for limiting felony murder to felonies that are “inherently
dangerous” (see also State v. Noren, 371 N.W.2d 381, 383-84
(Wis. App. 1985)), of which armed robbery is one. But
the court was just explaining why the Wisconsin legislature
had dropped from the felony-murder statute the “natural
and probable” formula in favor of an enumeration of
specific felonies, such as armed robbery, to which the stat-
ute would henceforth be limited. The court was not con-
sidering the party-to-a-crime statute. Only Feela among the
cases that might be cited against Perry’s appeal is really
on point, for it was a case much like this and we held
that the failure to give a “natural and probable” instruction
was harmless error. But Feela did not cite Briggs, which
28 No. 01-3867
stands as the governing statement of Wisconsin law. In-
stead it cited cases such as Balistreri and Asfoor which hold
merely that a jury is permitted—not required—to infer
that the murder of a robbery victim is a natural and proba-
ble consequence of an armed robbery.
A properly instructed jury might have so found here. But
as Perry had no foreknowledge that the robbery victim
would be killed, and did not contribute to the death in
any very obvious sense, the jury, consistent with Wis-
consin law as stated in Briggs, might have acquitted him
had it been given a real alternative of convicting him
of felony murder. Perry’s was in fact a classic case of
felony murder. The murder occurred in the course of his
felony but he did not intend or perpetrate the murder.
See State v. Rivera, supra; State v. Chambers, 515 N.W.2d
531, 534 and n. 4 (Wis. App. 1994); State v. Back, 341 N.W.2d
273, 276-77 (Minn. 1983); State v. Utley, 928 S.W.2d 448, 451-
52 (Tenn. Crim. App. 1995); Commonwealth v. DeVaughn,
292 A.2d 444, 447 (Pa. App. 1972). Felony murder and party-
to-a-crime liability overlap and jurors familiar with the
term “felony murder” from television or newspapers
may have thought that Wisconsin law defines it very
narrowly and that what they thought was felony murder
was intended to be covered by the mysterious reference
to “natural and probable” consequences in the party-to-a-
crime statute. The first-degree murder instruction in-
vited such a misunderstanding because it allowed the
jury to convict Perry if he “or someone else” intended the
death—while the instruction on felony murder contained
no such allowance.
We must in evaluating a state prisoner’s application for
federal habeas corpus defer to the state courts’ judgment
if reasonable. 28 U.S.C. § 2254(d)(1); Williams v. Taylor,
529 U.S. 362, 411 (2000); Dixon v. Snyder, 266 F.3d 693,
No. 01-3867 29
700 (7th Cir. 2001). The judgment that Perry received ef-
fective assistance of counsel was not reasonable, and so
Perry is entitled to a new trial.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—9-23-02