Antonio McAfee v. Michael Thurmer ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1230
A NTONIO M C A FEE,
Petitioner-Appellant,
v.
M ICHAEL T HURMER,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 C 1200—Rudolph T. Randa, Judge.
A RGUED S EPTEMBER 17, 2009—D ECIDED D ECEMBER 8, 2009
Before P OSNER, M ANION, and E VANS, Circuit Judges.
E VANS, Circuit Judge. The paths of two young people
crossed in a Milwaukee alley on a September night in
1996. One was Wendolyn Tanner, the other was Antonio
McAfee. Later, a state court judge would observe that the
two shared a number of similarities: both were in their late
twenties; both were African-American males; both grew
up in Milwaukee; both graduated from high school; both
served in the military. But that night in 1996, the two men
were on different life trajectories: Tanner, 29, was in his
2 No. 09-1230
fourth year as a city of Milwaukee police officer, while
McAfee, 28, recently finished serving the in-custody
portion of a sentence he received for armed robbery.
Tanner was shot and killed in the alley that night. McAfee,
who a state court jury found responsible for killing
Tanner, was convicted of first-degree intentional
homicide while armed with a dangerous weapon. He
received a sentence of life imprisonment. Today, 13 years
after Tanner was put to rest, McAfee is before us
appealing the denial of a petition for habeas corpus
which asked the federal district court to return his case
to state court for a new trial.
McAfee’s federal habeas petition rests on a claim that
his trial counsel was constitutionally ineffective. That
claim was aired and rejected by the state trial judge
during postconviction proceedings, and that determina-
tion was affirmed by the Wisconsin Court of Appeals in
a 2005 opinion marked “Not recommended for publica-
tion in the official reports.” The Wisconsin Supreme
Court declined to review the case. As we mentioned, the
federal district court denied McAfee’s petition.
Our review is under the Antiterrorism and Effective
Death Penalty Act (AEDPA). As directed by AEDPA, we
review the decision of the last state court to adjudicate a
habeas petitioner’s claim. Starkweather v. Smith, 574 F.3d
399 (7th Cir. 2009). We may grant relief to a petitioner
only if the state court’s adjudication of a petitioner’s
constitutional claim was based on an unreasonable view
of the facts or was contrary to, or involved an unrea-
sonable application of, clearly established federal law as
No. 09-1230 3
determined by the Supreme Court of the United States.
Williams v. Taylor, 529 U.S. 362, 376-77 (2000).
Because McAfee argues that he was denied his Sixth
Amendment right to the effective assistance of counsel,
the relevant standard is a very familiar one: Strickland v.
Washington, 466 U.S. 668, 688 (1984), requires a habeas
petitioner to show that his state trial counsel’s per-
formance was objectively unreasonable and that coun-
sel’s errors affected the outcome of the proceeding. In
other words, McAfee must, under Strickland, meet both
a performance and a prejudice standard. More on this
a little later, as we start our review with the facts.
In federal habeas proceedings, all factual deter-
minations made in state court are presumed to be correct.
A petitioner, like McAfee here, can only rebut the pre-
sumption of reasonableness by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). McAfee has not over-
come the presumption, so here are the facts we accept
as true.
On the night of September 17, 1996, two Milwaukee
police officers, Tanner and Brian Ketterhagen, were on
patrol in a squad car on Milwaukee’s north side. While
investigating drug activity, they tried to detain McAfee
in an alley just east of 21st Street, but McAfee fled north.
Tanner chased McAfee on foot while Ketterhagen re-
mained in the squad car. As soon as Tanner exited the
vehicle, Ketterhagen drove out of the alley and spotted
McAfee running across 21st Street with Tanner in pur-
suit. To keep up with the chase, Ketterhagen drove
into another alley on the west side of the street. As he
4 No. 09-1230
drove north, he saw McAfee emerge from an opening in
a backyard fence and position himself south of the
opening to lie in wait for Tanner. As Tanner entered the
alley through the opening in the fence, McAfee extended
his arms and fired several shots at Tanner, who fell back-
wards to the ground. Ketterhagen jumped out of the
squad car and started shooting at McAfee as he took off
running north. Ketterhagen continued firing until he
lost sight of McAfee, at which point he ran to his fallen
partner and shouted into his radio, “Officer down! Officer
down!” Tanner was pronounced dead at the scene.
Soon more police arrived until as many as 90 officers
were at the scene. Ketterhagen didn’t know if any of the
bullets he fired hit McAfee, but police soon discovered a
trail of blood, which led them to a house on 22nd Street,
the home of McAfee’s aunt. Upon searching the house,
police found McAfee with his gun, hiding in a closet.
Later it was determined that Tanner suffered three
gunshot wounds. The fatal shot entered Tanner’s right
side, passed through his heart and lungs, and exited the
left side of his body, severing his aorta. However, the
source of the bullet was not identified. Another “poten-
tially fatal” shot severed Tanner’s spinal cord, and the
bullet lodged behind his right clavicle. It was recovered
from Tanner’s body and traced to the gun McAfee had
with him in the closet when he was apprehended. The
third shot passed through Tanner’s left arm and was
deemed to be a flesh wound.
At trial, McAfee’s attorney argued that Ketterhagen—
not McAfee—fired the fatal bullet and that the police
No. 09-1230 5
falsified testimony to cover up the truth. But the state
court jury didn’t believe this “friendly fire/police cover-
up” theory and found McAfee guilty of first-degree
intentional homicide. McAfee claims that his lawyer
was constitutionally ineffective because she relied on a
“doomed” defense of “friendly fire” and failed to strenu-
ously argue for conviction only on the lesser-included
offense of first-degree reckless homicide. 1 However,
counsel “need not be perfect, indeed not even very good,
to be constitutionally adequate.” Dean v. Young, 777
F.2d 1239, 1245 (7th Cir. 1985). As we noted, Strickland
has two prongs, both of which must be satisfied to
succeed on an ineffectiveness claim. A defendant must
show that his attorney performed below minimal profes-
sional standards and that the substandard performance
prejudiced him. Strickland, 466 U.S. at 687. Under AEDPA,
establishing that a state court’s application of the
Strickland standard was “unreasonable” is a tall task,
and “only a clear error in applying Strickland will sup-
port a writ of habeas corpus.” Allen v. Chandler, 555
1
Under Wisconsin law whoever causes the death of another
human being with intent to kill that person or another is
guilty of first-degree intentional homicide. Wis. Stat. Ann.
§ 940.01(1). Whoever recklessly causes the death of another
human being under circumstances which show utter
disregard for human life is guilty of first-degree reckless homi-
cide. Wis. Stat. Ann. § 940.02(1). First-degree reckless homicide
is a lesser-included offense of first-degree intentional homicide.
The parties stipulated to submitting the lesser-included
offense option to the jury.
6 No. 09-1230
F.3d 596, 600 (7th Cir. 2009). McAfee argues that the
Wisconsin Court of Appeals unreasonably applied the
Strickland standard in rejecting his claim of ineffective
assistance of counsel. We disagree.
With respect to Strickland’s performance prong, McAfee
must overcome the strong presumption that counsel’s
conduct was reasonable and that the “challenged action
‘might be considered sound trial strategy.’ ” 466 U.S. at
689, 104 S. Ct. 2052, quoting Michel v. Louisiana, 350 U.S. 91,
101, 76 S. Ct. 158 (1955). Strategic choices are “virtually
unchallengeable.” Id. at 690. The record in this case sup-
ports but one conclusion: the decision to go with the
“friendly fire” defense was strategic. McAfee’s counsel
was a seasoned defense attorney with experience in
trying first-degree intentional homicide cases, including
ones where a lesser-included charge of reckless
homicide was submitted to the jury. She spent many
hours developing her trial strategy, and McAfee was on
board with it.
In hindsight, it might well have been better to urge
the jury to convict on the lesser-included offense, rather
than go for broke by seeking an acquittal on the more
serious charge. But we do not second-guess an
attorney’s performance with the benefit of hindsight.
Instead, as Strickland dictates, we make “every effort . . . to
evaluate the conduct from counsel’s perspective at the
time.” Id. at 689. When we put ourselves in the shoes
of McAfee’s trial counsel, going for broke was not an
unreasonable strategy. As the Wisconsin Court of Appeals
noted, Ketterhagen was the sole eyewitness; McAfee
No. 09-1230 7
admitted to firing his gun but not to actually shooting
Tanner; and the source of the fatal bullet was not identi-
fied. Therefore, seeking acquittal fell well within the
“wide range of professionally competent assistance.” Id. at
690. Plus, the “friendly fire” defense might well have
swayed a few jurors and forced a compromise verdict—not
guilty of intentional homicide but guilty on the lesser-
included offense.
At the postconviction hearing on McAfee’s Sixth Amend-
ment claim, his attorney testified that upon reflection,
she should have used a “more general approach” and
addressed both “friendly fire” and reckless homicide.
But again, this kind of reflection after the fact is
irrelevant to the question of ineffective assistance of
counsel. Moreover, the State argued that McAfee’s
lawyer appeared to be falling on her sword for the sake
of her client. The Wisconsin trial judge agreed. He
found her testimony of “limited usefulness to the Court” as
she testified “in a manner which appeared to be cal-
culated to aid the defendant.” The judge thought the
attorney conceded error in hopes of securing a new trial
for her former client. As a result, her testimony that
she was “rattled” and had made an “overzealous
probably inappropriate indictment of a police officer” did
not seem all that believable. The state judge found that
trial counsel’s performance was not constitutionally
ineffective.
Even if we could find deficient performance, we could
not find prejudice. To establish prejudice, McAfee must
show that there is a reasonable probability that the
8 No. 09-1230
result of the trial would have been different but for coun-
sel’s shortcomings. A reasonable probability is a prob-
ability sufficient to undermine confidence in the out-
come. McAfee’s claim fails this prong, too. The State’s
case against McAfee was overwhelming. He ran from
the police. He fired his gun at the officers numerous
times. At least one of his bullets hit Tanner. And after
the shootout, police found him hiding in a closet with
the gun. Given the facts established at trial, we can’t see
how a jury would have given McAfee a pass. Perhaps
this was the kind of case—yes, there are some—where
there simply is no viable defense. While we respect
McAfee’s right to remain silent at trial, without hearing
his side of the story about what happened in that Mil-
waukee alley 13 years ago, the jury probably had little
choice but to convict him of first-degree intentional
homicide for killing officer Tanner.
Accordingly, we A FFIRM the denial of McAfee’s habeas
petition.
12-8-09