Marlo Morales v. Ana Boatwright ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1153
M ARLO U. M ORALES,
Petitioner-Appellant,
v.
A NA B OATWRIGHT,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 C 600—Lynn Adelman, Judge.
A RGUED JANUARY 8, 2009—D ECIDED S EPTEMBER 3, 2009
Before E ASTERBROOK , Chief Judge, and E VANS and
T INDER, Circuit Judges.
T INDER, Circuit Judge. Marlo Morales pleaded guilty in
Wisconsin to two counts of first degree sexual assault of
a child. After receiving an unexpectedly long sentence,
he sought multiple reviews of his conviction in the Wis-
consin state courts; after losing there, he sought a
federal writ of habeas corpus. The district court denied
his petition. We affirm.
2 No. 08-1153
I. Background
Marlo Morales was charged with two counts of first
degree sexual assault of a child. He gave a statement to
the police in which he admitted knowing the victim
was eleven years old when he had sex with her, but that
he could not control his urges because she was always
teasing him. According to his confession, he had sex with
the victim on at least five occasions beginning in the
fall of 1999. His account, and that of the victim, was
corroborated by a sexual assault nurse at a hospital. The
nurse determined that the victim had recently had inter-
course and was infected with a sexually transmitted
disease. The victim told police that she had not had
sexual intercourse with any other partners in her life.
She was not yet thirteen at the time. Later, prosecutors
informed the court that the victim had been assaulted
at another time by another man.
In June 2000, Morales entered an Alford plea to two
counts of first degree sexual assault of a child and was
sentenced to concurrent prison terms of forty and sixty
years (twenty of which were extended supervision). See
North Carolina v. Alford, 400 U.S. 25 (1970). Because the
sixty-year sentence was issued pursuant to Wisconsin’s
truth-in-sentencing law, Morales is not eligible for
parole or good behavior credits, a circumstance he
claims not to have known when entering into the plea
agreement. In July 2001, Morales sought postconviction
relief from the trial court and raised a variety of ineffec-
tive assistance claims, including two of the claims before
us: that his trial counsel improperly understood the
No. 08-1153 3
Wisconsin rape shield law (which would have allowed
him to impeach his victim’s testimony) and that the
trial court failed to ensure that he understood the conse-
quences of his guilty plea. He lost on August 2, 2001, and
appealed. The Wisconsin Court of Appeals affirmed
the trial court, adopting the “no-merit” report of his
appellate counsel. Morales had filed a pro se response
to the no-merit report, raising several new claims. The
state supreme court denied review of his conviction on
January 23, 2004.
Morales then attacked his conviction collaterally,
under W IS. S TAT. § 974.06, arguing that his appellate
counsel was ineffective for failing to attack the effective-
ness of his trial counsel. At this point, he raised the
second ineffectiveness claim we have here regarding his
trial counsel’s failure to inform him of the sentencing
consequences of his Alford plea. His collateral attack
failed in the Wisconsin circuit court and court of appeals
on the merits and because he failed to raise the claim in
his response to his appellate counsel’s no-merit brief.
His petition for review of his § 974.06 motion was
denied by the Wisconsin Supreme Court.
Proceeding onward, Morales filed a habeas petition in
the Wisconsin Court of Appeals, challenging the effective-
ness of his appellate counsel for his failure to raise
the claim that his trial counsel was ineffective for not
ensuring Morales understood all the elements of the
crime. His petition was dismissed for a number of
reasons discussed infra.
On May 16, 2006, Morales filed a petition for a writ of
habeas corpus with the United States District Court for
4 No. 08-1153
the Eastern District of Wisconsin, and presented the
issues we have before us in various forms. The state
moved to dismiss, arguing that the petition was
untimely and that Morales had procedurally defaulted
on all of his claims. The district court found the petition
timely and that Morales had not defaulted on the
claims that we have here. But the district court denied
the petition on the merits.
Morales requested a certificate of appealability, which
the district court denied. We granted a certificate of
appealability, finding that Morales “made a substantial
showing of the denial of a constitutional right as to
whether his trial counsel rendered constitutionally suffi-
cient assistance and whether his guilty plea was knowing
and voluntary.”
II. Analysis
A. Standard of Review
We review a district court’s decision to deny habeas
relief de novo. Daniels v. Knight, 476 F.3d 426, 433 (7th Cir.
2007). Our review of petitioner’s claims is constrained
by the rules of the Antiterrorism and Effective Death
Penalty Act, particularly 28 U.S.C. §§ 2244 & 2254, as
outlined below. Wisconsin contests Morales’s petition on
a number of procedural grounds, also discussed below,
as well as on the merits, which we find we must reach.
No. 08-1153 5
B. Timeliness
Morales had one year after his conviction became final
in Wisconsin state court to bring a federal habeas petition.
28 U.S.C. § 2244(d)(1)(A). This limitation period is tolled
while petitions for relief in state court are pending, as
long as such petitions were properly filed. Id. § 2244(d)(2).
A brief word about Wisconsin’s postconviction pro-
cedures is in order. It is obviously incumbent on a defen-
dant to raise all the issues necessary to his defense at
trial. If he does not do so, these are ordinarily waived.
However, after his trial, a defendant has an opportunity
to challenge the effectiveness of his trial counsel in a
postconviction motion. See W IS. S TAT. § 974.02. This
motion allows the defendant to preserve issues that
should have been raised at trial but were not, due to his
counsel’s alleged ineffectiveness. Failure to make this
motion results in a forfeiture of all of defendant’s
claims, except for any claims that his postconviction
counsel was ineffective for failing to raise. After a loss
at trial and the denial of the postconviction motion, the
defendant can then take his direct appeal to the
Wisconsin Court of Appeals; there, the court considers
any trial errors, including the ineffectiveness claims that
the defendant raised in his postconviction motion. On
direct appeal, defendant’s appellate counsel, instead of
pursuing the appeal, may file a no-merit report, which
details the defendant’s potential claims and the reasons
that each claim lacks merit. A defendant may elect to file
a pro se response to his counsel’s no-merit report. After
the disposition of his appeal, the defendant still may file
6 No. 08-1153
a § 974.06 motion, which is equivalent to a petition
for habeas corpus, if he is in custody “in violation of
the U.S. constitution or the constitution or laws of [Wis-
consin]. . . .” W IS. S TAT. § 974.06. The Wisconsin Supreme
Court has held that § 974.06 motions challenging the
effectiveness of appellate counsel should be filed
directly in the court of appeals. State v. Knight, 484
N.W.2d 540, 545 (Wis. 1992). But, § 974.06 motions chal-
lenging the effectiveness of appellate counsel on the
grounds that appellate counsel should have challenged
trial counsel’s effectiveness should be filed in the trial
court. State ex rel. Rothering v. McCaughtry, 556 N.W.2d 136,
139 (Wis. Ct. App. 1996). The argument over how
to properly characterize an ineffectiveness claim appar-
ently arises frequently in Wisconsin courts, particularly
when a defendant’s appellate counsel fails to raise an
ineffectiveness claim based on his trial counsel’s conduct.
The Wisconsin Court of Appeals has recently noted the
confusion and delay that results in habeas filings in
Wisconsin that are based on these dual-level ineffective-
ness of counsel claims. See State ex rel. Panama v. Hepp,
758 N.W.2d 806, 812-13 (Wis. Ct. App. 2008).
Morales’s conviction became final on April 22, 2004, at
the end of the ninety days after the Wisconsin Supreme
Court denial of his direct appeal during which he could
have sought a writ of certiorari from the U.S. Supreme
Court. Jones v. Hulick, 449 F.3d 784, 787 (7th Cir. 2006).
Two hundred fifty-seven days later, on January 4, 2005,
Morales filed a petition for collateral relief under § 974.06
in state court. Review of this petition was ultimately
denied by the Wisconsin Supreme Court on January 23,
No. 08-1153 7
2006. The next day Morales filed another § 974.06
motion in the Wisconsin Court of Appeals attacking
the effectiveness of his appellate counsel. This petition
was denied on May 11, 2006. Five days later he filed the
instant habeas petition.
The crux of the timeliness issue is whether the second
§ 974.06 motion, filed in state appeals court, was
properly filed for purposes of tolling the federal statute
of limitations on habeas actions. If so, Morales filed this
petition 262 days (after the tolled time is subtracted)
from the date his conviction became final. If the second
§ 974.06 motion was not properly filed, Morales loses
the 108 days during which his petition in the Wisconsin
Court of Appeals was pending and thus, at 370 days,
misses the cutoff date by five days.
Morales relies on Knight to support his contention that
the petition was properly filed in the Wisconsin Court of
Appeals. In Knight, the Wisconsin Supreme Court estab-
lished the court of appeals as the proper forum for a
§ 974.06 motion alleging ineffective assistance of
appellate counsel. Knight, 484 N.W.2d at 541. In his
Knight petition (as it is known in Wisconsin), Morales
argued that his appellate counsel was ineffective for
failing to argue that his trial counsel was ineffective for
neglecting to ensure that the circuit court questioned
Morales sufficiently regarding his understanding of the
elements of the crime to which he was entering a plea.
The Wisconsin Court of Appeals denied the habeas
petition in an unpublished opinion “for a number of
reasons.” First, Morales did not submit sufficient informa-
8 No. 08-1153
tion to support the claim that the circuit court did not
properly ensure that he was aware of the elements of
the charges against him. Second, Morales did not claim
he did not understand the elements of the charges. Third,
Morales forfeited the issue. Finally, the court determined
that the challenge to the effectiveness of his appellate
counsel was actually an attack on the effectiveness of
his trial counsel, a claim that should have been raised in
the trial court. The question then is whether the Wis-
consin Court of Appeals dismissed Morales’s Knight
petition as an improperly filed claim.
Morales claims that under Knight, the petition was
properly filed and that the Wisconsin Court of Appeals
did not rely on the improper filing to dispense of his
claim. The district court found that Morales arguably
complied with a state rule despite the Wisconsin court’s
“remark” to the contrary and gave him the benefit of the
doubt, allowing him to proceed with his habeas claim.
Wisconsin argues that Morales’s petition ran afoul of
our decision in Johnson v. McCaughtry, 265 F.3d 559 (7th
Cir. 2001). There, two petitions by a Wisconsin prisoner
were dismissed because of some confusion about where
to file claims for ineffectiveness of counsel in the
prisoner’s initial postconviction hearing. We held that
because these claims were not properly filed they did not
toll the federal statute of limitations. Johnson, 265 F.3d
at 564 (“If a state court accepts and entertains the
petition on its merits, it has been ‘properly filed,’ but if the
state court rejects it as procedurally irregular, it has not
been ‘properly filed.’ ”).
No. 08-1153 9
Johnson is of little help to Wisconsin if, as Morales
argues, the Wisconsin Court of Appeals entertained his
petition on its merits, which would mean it was “properly
filed” under Johnson. Wisconsin argues that because
the court of appeals “clearly and expressly” relied on a
filing error, specifically that the petition was filed in the
wrong court, “as a basis for its ruling,” the claim was not
properly filed. A fair reading of the Wisconsin opinion,
however, reveals something less than clarity.
In Smith v. Battaglia, 415 F.3d 649 (7th Cir. 2005), we
undertook a similar inquiry to the one here. “If the appel-
late court’s decision rested on at least two separate
grounds” to reject the petition, one of which is improper
filing, the petitioner cannot prevail. Id. at 653. For an
improperly filed petition to be a separate and adequate
ground for the state court disposition of the case, the
court must have, as noted, clearly and expressly relied
on the filing error to rule against the petitioner. In
Smith, we found three factors that indicated that the
untimeliness of the petition (the filing error at issue in
Smith) was not a separate ground, clearly and expressly
relied upon, for the state decision. First, “the court struc-
tured its comments so that it addressed the merits of
[petitioner’s] claims first and only at the end, added its
ambiguous comment about timeliness.” Second, the
court used the term “may” to modify “be considered”, and
may is a word that could have two meanings in that
context. Finally, the petitioner in Smith had an excuse
for delay in filing that the court did not address. We
reasoned that if the delay was an independent and ade-
quate state ground for finding the petition untimely, the
10 No. 08-1153
state court would have considered Smith’s argument
that the delay was excusable. Id. at 653.
What Smith teaches is that it is incumbent on this court
to parse the state court’s language to determine whether
that court believed dismissal was appropriate based on
a filing error. If so, the instant petition is time-barred. It
is at best difficult to discern the Wisconsin court’s
intent here. After delineating the “number of reasons”
the court denied the habeas corpus petition, none of
which included a finding that the instant petition is
“improperly filed,” the court addressed whether
Morales filed his petition in the correct court. The key
sentences read: “Finally, the court notes that Morales
frames the issue as one of appellate counsel’s ineffective-
ness for failing to challenge trial counsel’s effectiveness
regarding the validity of the plea colloquy. This is the
sort of issue that, if viable, must first be raised in the
circuit court.” State ex rel. Morales v. Farrey, No. 2006AP214-
W at 3 (Wis. Ct. App. Mar. 2, 2006).
Given that the proper court to file an attack on appellate
counsel is apparently an issue of some confusion
in Wisconsin, Panama, 758 N.W.2d at 813 (tracing the
development of Wisconsin’s § 974.06 rules and finding
that “the cases collectively create much confusion and
delay”), we think that, like in Smith, the court’s “note” at
the end of its opinion does not lay out an independent
and adequate state ground for the denial of Morales’s
Knight petition, particularly since the court more fully
explicated its reasoning for denying the case on the
merits earlier in its opinion. Had the fact that the
No. 08-1153 11
petition was filed in the appellate rather than the circuit
court been a wholly independent ground for the court’s
ruling, we think the court would have expressly held
that such a claim cannot be brought at the appellate
level, with citation to relevant case law bolstering its
position. (It instead cited to Rothering, 556 N.W.2d at 138,
which turned on the distinction between a defendant’s
postconviction and appellate counsel, an issue not
present here). So, the second § 974.06 motion by Morales
did toll the time for filing his federal habeas petition.
Accordingly, we find that Morales’s petition is timely
and we may turn to the two issues he raises: his
counsel’s ineffectiveness due to a misunderstanding of
Wisconsin’s rape shield law and the voluntariness of
Morales’s guilty plea in light of the actual potential sen-
tencing consequences of such a plea.
C. Wisconsin’s Rape Shield Law
Morales alleges that his counsel was ineffective for
failing to correctly understand Wisconsin’s rape shield
law. Morales argues that, contrary to his counsel’s advice,
Wisconsin law would have allowed him to impeach the
victim’s testimony that she had not had any sexual
contact other than with Morales. Furthermore, contrary
to his counsel’s advice, Morales believes the law would
have allowed him to argue that because the victim was
infected with a sexually transmitted disease and he was
not, he was not guilty of the sexual assault. Morales
claims he would have proceeded to trial armed with
these tools of impeachment.
12 No. 08-1153
Our review here is constrained by the Antiterrorism
and Effective Death Penalty Act of 1996, 28 U.S.C.
§ 2254(d)(1), because the Wisconsin Court of Appeals
rejected Morales’s rape-shield-based claim on direct
review of Morales’s conviction. Because the ineffective-
ness claim regarding the rape shield law is a matter of
law that was litigated on the merits in both Morales’s
direct appeal and state postconviction proceedings, we
can only disturb the state court’s adjudication if it “was
contrary to, or involved an unreasonable application
of, clearly established Federal law . . . .” Id.
Here, the applicable federal law governing ineffective
assistance of counsel claims is found in Strickland v.
Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474
U.S. 52 (1985). A defendant challenging a guilty plea
based on ineffective assistance of counsel must show that
his “representation fell below an objective standard of
reasonableness” and “that there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”
Strickland, 466 U.S. at 688, 694. In the context of a
guilty plea, the prejudice requirement is satisfied if the
defendant shows “that there is a reasonable probability
that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”
Hill, 474 U.S. at 59. This determination depends on
whether absent the error, defendant’s counsel would
have changed his “recommendation as to the plea”
which in turn depends on whether “the evidence likely
would have changed the outcome of a trial.” Id.
No. 08-1153 13
Wisconsin’s rape shield law excludes the admission of
“any evidence concerning the complaining witness’s
prior sexual conduct” with certain relevant exceptions.
W IS. S TAT. § 972.11(2)(b). Exceptions exist for “[e]vidence
of the complaining witness’s past conduct with the defen-
dant,” “[e]vidence of specific instances of sexual conduct
showing the source or origin of semen, pregnancy or
disease, for use in determining the degree of sexual
assault or the extent of injury suffered,” and “[e]vidence
of prior untruthful allegations of sexual assault made by
the complaining witness.” Id. The Wisconsin Supreme
Court has found a constitutional exception to the
statute, making evidence of a prior sexual assault ad-
missible to rebut an inference that a child victim’s sexual
knowledge came from her experience with the defendant.
State v. Pulizzano, 456 N.W.2d 325, 334-35 (Wis. 1990).1
Morales argues that his counsel was constitutionally
deficient in two respects. First, he should have investigated
1
A close reading of the rape shield law and Pulizzano indicates
that Morales’s trial counsel was very likely correct that testi-
mony about the victim’s prior sexual assault and disease are
inadmissible. Such evidence is only admissible to prove the
existence of sexual knowledge (not at issue here), the extent
of injury from sexual assault (also not at issue), and prior
untruthful allegation of sexual assault (not at issue, because
while the victim denied being assaulted by another man, she
made no false allegation). Morales cites no Wisconsin law to
say that a child victim can somehow be impeached by this
type of testimony or that it would exonerate the defendant. In
fact, the law seems designed exactly to forbid this evidence.
14 No. 08-1153
the source of the victim’s sexually transmitted disease as
a potential defense to the rape and investigated her
prior false accusations of sexual assaults. Second,
Morales’s counsel failed to investigate whether Morales
had the same sexually transmitted disease that the
victim had. Morales’s postconviction motion offered
evidence that he did not have a sexually transmitted
disease. Had counsel investigated these leads, Morales
believes he would not have advised Morales to plead
guilty.
The Wisconsin Court of Appeals, on direct appeal,
denied the ineffective assistance claim (essentially pre-
sented on the same basis as it is here) based on the “over-
whelming evidence” of Morales’s guilt. Similarly, the
district court found that evidence of the source of the
victim’s sexually transmitted disease was irrelevant
because the only issue in the case was whether
Morales had intercourse with the victim and Morales
had admitted repeated instances of sexual intercourse
with the victim.
While neither court analyzes the case exactly under
the guidelines established by Strickland and Hill, their
message is clear: Morales suffered no prejudice because
the potential outcome at trial would have been the same.
See Hill, 474 U.S. at 59. Morales admitted both to the
police and in open court (during an earlier aborted plea
hearing) to sexual intercourse with the eleven-year-old.
Consent of the victim would be no defense to the crime.
See W IS. S TAT. § 948.02. Morales argues on appeal that he
could have renounced his confession (and statements in
No. 08-1153 15
court, apparently) on appeal and gone to trial with evi-
dence that showed that he did not cause the girl’s disease.
However, given the existence of his confession, it’s at the
very least not an unreasonable application of Strickland
to find that his counsel’s choice to refuse to pursue the
impeachment of his victim (who was not going to tes-
tify) was proper and that Morales suffered no prejudice
from failure to pursue this lead.2
D. Morales’s Guilty Plea
1. Procedural Default
The state contends that Morales defaulted his claim that
his counsel did not ensure that he knowingly and volun-
tarily waived his rights when pleading guilty because
Morales did not raise the issue on direct appeal in his
2
Furthermore, because the victim’s mother was not cooperating
before trial, the state was going to proceed with simply the
evidence of the victim’s visit to the hospital and Morales’s
confessions. It’s unclear at what point in a hypothetical trial
the fact that the victim had been previously assaulted and had
a disease would be admissible, particularly if the prosecution
never alleged that the disease came from Morales, a tactic
that would have been appropriate in light of the other over-
whelming evidence against him. In other words, the prosecu-
tion’s case was tight enough to be presented without any
evidence that Morales could have rebutted using the infor-
mation he contends his counsel was ineffective for failing to
investigate.
16 No. 08-1153
response to his counsel’s no-merit brief.3 The Wisconsin
courts subsequently treated the issue as defaulted in
their rulings on Morales’s § 974.06 motions, relying on
State v. Escalona-Naranjo, 517 N.W.2d 157 (Wis. 1994), in
which the Wisconsin Supreme Court held that a
defendant cannot seek collateral review of a constitutional
claim that could have been raised as part of his direct
appeal. Because of this alleged default, Wisconsin argues
that Morales did not fairly present his constitutional
challenges in state court and should thus be barred from
federal habeas relief. See Baldwin v. Reese, 541 U.S. 27, 29
(2004).
The district court relied on our holding in Page v. Frank,
343 F.3d 901 (7th Cir. 2003) to find that Morales did not
default. In Page, a similarly situated Wisconsin prisoner
attempted in the context of a § 974.06 motion to
collaterally attack the effectiveness of his appellate
counsel for failing to raise an ineffective assistance
claim against his trial counsel. As they did here, the
Wisconsin courts treated the claim as defaulted because
the petitioner did not raise it as a response to his
appellate counsel’s no-merit brief.4 We found that he had
3
The state does not contend that our review of the trial court’s
role in Morales’s plea is precluded. This issue was raised in
his direct appeal.
4
The state argues that a defendant whose counsel submitted an
Anders brief is not allowed habeas review of any claim submit-
ted in the Anders process unless he proves that the court of
(continued...)
No. 08-1153 17
not defaulted the issue, because he was barred under
Wisconsin law from raising on appeal issues he had not
brought in his previous postconviction motion in the
trial court. If he had brought the issue in response to the
no-merit brief, it would have been fruitless because
his postconviction counsel had failed to bring it in the
trial court. Page, 343 F.3d at 909. Thus, a § 974.06 motion
was his only opportunity to litigate his ineffectiveness
claim.
Wisconsin distinguishes Page from Morales’s case by
pointing out that Morales raised several ineffective assis-
tance claims in his first postconviction motion in the
trial court (including the rape shield one discussed
above) and a few new ones in response to his counsel’s no-
merit report. In sum, because Morales was able to
raise these claims, and the Wisconsin court entertained
them, the state argues that Morales was not barred
from raising the instant sentencing claim in state court,
an issue that Page turned on.
4
(...continued)
appeals acted contrary to or unreasonably applied Anders. See
Anders v. California, 386 U.S. 738 (1967). This cannot be the case.
If Morales is in custody unlawfully, and therefore has a
meritorious habeas petition, it is not because the appeals court
unlawfully applied the procedural rules of Anders, but because
his Sixth Amendment rights were violated. Subject to the
procedural requirements discussed above, once we assure
ourselves that he attempted, at every opportunity, to raise
his Sixth Amendment claims in Wisconsin courts, we are
obligated to reach these claims, even if his counsel and the
court of appeals found them without merit.
18 No. 08-1153
But, it appears that under Wisconsin law, Morales
could not have raised the ineffectiveness issue in his no-
merit response. The Wisconsin Court of Appeals, ruling
on his direct appeal, plainly stated that “[a]ny claim of
ineffective assistance must first be raised in the trial
court,” citing State v. Machner, 285 N.W.2d 905 (Wis. Ct.
App. 1979), and found that it was “inappropriate for
this court to determine competency of trial counsel
based on unsupported allegations.” So, while Wisconsin
argues that the court considered Morales’s new ineffec-
tiveness claims on appeal, the court’s opinion makes
clear that waiver was an independent and adequate
ground for the state court’s decision. Thus, Morales faced
the same dilemma that we found dispositive in Page.5
Page’s application therefore seems appropriate here; a
defendant should be able to collaterally attack the perfor-
mance of his counsel if he had no real opportunity to
raise this issue on direct appeal.6 See also Cone v. Bell, 129
5
Recently, the Wisconsin Supreme Court granted review of a
case that deals with the same interplay between the Escalona-
Naranjo bar and no-merit procedures. State v. Allen, 765 N.W.2d
578 (Wis. 2009); State v. Allen, 750 N.W.2d 518 (Wis. Ct. App.
2008). The Wisconsin Supreme Court’s ultimate determina-
tion may affect the future application of Page, but we see no
reason to delay our review of Mr. Morales’s appeal, particularly
since we do not rely on Wisconsin’s procedural bars to
avoid consideration of its merits.
6
Furthermore, in Page we relied on “an even more fundamental
reason” than the intricacies of Wisconsin habeas law. “It
(continued...)
No. 08-1153 19
S. Ct. 1769, 1780 (2009) (“[T]he adequacy of state proce-
dural bars to the assertion of federal questions . . . is not
within the State’s prerogative finally to decide; rather,
adequacy is itself a federal question.” (quotations omit-
ted)).
2. Merits
At last, we reach the merits of Morales’s challenge to the
voluntariness of his plea. This claim is presented to us
in two ways. First, Morales challenges the Wisconsin
Court of Appeals’ determination that his plea was
knowing and voluntary, a determination that rested on
an examination of the procedures of the trial court. This
is subject to AEDPA’s “contrary to” or “unreasonable
application of” requirements because the Wisconsin state
court ruled against Morales on the merits. Second, Morales
challenges the effectiveness of his trial counsel, arguing
that he failed to ensure that he understood the effect
of Wisconsin’s truth-in-sentencing law.
a. Alleged Trial Court Errors
When a defendant pleads guilty, he waives constitu-
tional rights. “Waivers of constitutional rights not only
6
(...continued)
would be incongruous to maintain that [petitioner] has a Sixth
Amendment right to counsel on direct appeal, but then to
accept the proposition that he can waive such right by simply
failing to assert it in his pro se response challenging his coun-
sel’s Anders motion.” Page, 343 F.3d at 909.
20 No. 08-1153
must be voluntary but must be knowing, intelligent acts
done with sufficient awareness of the relevant circum-
stances and likely consequences.” Brady v. United States,
397 U.S. 742, 748 (1970). Morales argues that we squarely
addressed whether a defendant needed to be informed
about all the sentencing consequences of his plea in
United States v. Smith, 440 F.2d 521, 522 (7th Cir. 1971).
There, we found that the defendant, according to Federal
Rule of Criminal Procedure 11, had to be informed that
parole was not available to him on the charge and ordered
an evidentiary hearing to determine whether he was
without understanding of the consequence of his plea.
Id. at 526.
Smith does not control the outcome of Morales’s case.
First, Smith concerned the application of Fed. Rule Crim.
P. 11 and thus established no constitutional standard
applicable to state sentencing. Second, Rule 11 has sub-
sequently been amended to specify the exact consequences
of the plea of which a defendant must be advised;
these consequences do not include parole eligibility. See
Hill, 474 U.S. at 56 (citing Advisory Committee’s Notes
on 1974 Amendment to Fed. Rule. Crim. P. 11). Third,
Smith was issued fourteen years before Hill v. Lockhart,
where the Supreme Court declared that “[w]e have
never held that the United States Constitution requires
the State to furnish a defendant with information
about parole eligibility in order for the defendant’s plea
of guilty to be voluntary . . . .” Id. Finally, Smith is a case
from this court, and not the clearly established Supreme
Court law to which a state court decision must be
contrary in order for habeas to be appropriate under
AEDPA. 28 U.S.C. § 2254(d)(1).
No. 08-1153 21
Morales does not contend that he had no idea of the
maximum sentence or that he did not understand that the
prosecution’s recommendation was not binding on the
court. He only argues that he did not understand the
actual, practical consequences of his plea. But, in Hill, the
Supreme Court made clear that there is no constitutional
requirement that a trial court ensure this understanding.
The Wisconsin Court of Appeals’ finding that “Morales’s
pleas were knowingly, voluntarily and intelligently
entered” therefore comports with Hill and was thus a
reasonable application of Supreme Court precedent.7
b. Alleged Counsel Errors 8
Under Hill, to make out a claim for ineffective
assistance of counsel in this context, Morales must
show that counsel performed below a minimum level
of competency and that, but for counsel’s errors, it was
reasonably probable that he would not have pleaded
guilty. Id. at 58-59. There is absolutely no reason,
beyond Morales’s contention, to think that he would
not have pleaded guilty even if we accept his con-
7
Morales’s subsidiary claim that Wisconsin law required the
trial court to ensure that he knew about the parole consequences
of his plea is not cognizable in a federal habeas action. See
Lambert v. Davis, 449 F.3d 774, 778-79 (7th Cir. 2006) (citing
Estelle v. McGuire, 502 U.S. 62, 67 (1991)).
8
We are not constrained by AEDPA regarding this second
issue because this issue was not decided on the merits in the
Wisconsin courts (see above).
22 No. 08-1153
tention that he did not fully understand the sentencing
consequences of his plea. “[A] mere allegation by the
defendant that he would have insisted on going to trial
is insufficient to establish prejudice.” United States v.
Cieslowski, 410 F.3d 353, 359 (7th Cir. 2005). “The defendant
must go further and present objective evidence that a
reasonable probability exists that he would have taken
that step.” Id.
The objective evidence here reveals that Morales
would have accepted the deal even if he were aware of
the truth-in-sentencing consequences of his crime. First,
as part of his plea deal, his prosecutors recommended
fifteen years in prison. After this agreement, the sen-
tencing judge’s imposition of the maximum sentence
must have been shocking, even though the defendant
acknowledged in court and his plea agreement that he
was aware that the judge could impose such a sentence.
We believe that the recommendation the prosecutors
offered would have been even more enticing had
Morales known the extent of time he could have faced
under Wisconsin’s truth-in-sentencing regime. Second,
as the Wisconsin courts noted, the evidence of Morales’s
guilt was overwhelming. Choosing to hope that the
state’s fifteen-year recommendation would be followed
in order to avoid the possibility that he would be sen-
tenced to a much longer term after being convicted at trial
would have been the most reasonable decision that Mo-
rales and his counsel could make. He therefore cannot
establish the requisite prejudice for an ineffective assis-
tance claim. See id. at 360.
No. 08-1153 23
III. Conclusion
Accordingly, we A FFIRM the district court’s denial of
the writ.
9-3-09