United States v. Mario Lomax ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1148
S HUN W ARREN,
Petitioner-Appellant,
v.
M ICHAEL B AENEN, W ARDEN,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-C-0919—Charles N. Clevert, Jr., Judge.
A RGUED O CTOBER 29, 2012—D ECIDED A PRIL 3, 2013
Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
K ANNE, Circuit Judge. Shun Warren shot and killed
Deshan Morrow on June 3, 2002, during a marijuana
sale that went tragically wrong. Although Warren
was originally charged in state court with first-
degree intentional homicide, he eventually pled no con-
test to first-degree reckless homicide, a reduced charge.
Soon after entering the plea, Warren began attempting
to withdraw it, a process that continues here. Warren
2 No. 12-1148
appears before us as a habeas corpus petitioner, having
fought his 40-year sentence through the Wisconsin
court system and in federal district court. He argues
that the state trial court’s refusal to allow him to
withdraw his plea deprived him of due process and that
he received unconstitutionally ineffective assistance of
counsel throughout his state court proceedings. Like
every other court to consider Warren’s arguments, we
find that they lack merit.
I. B ACKGROUND
The events of June 3, 2002, are, to this day, a bit
unclear. It suffices to say that at some point during the
day Shun Warren acquired a handgun from his friend,
Stormi Dixon, and arranged to buy marijuana from
Deshan Morrow, a source he had used before. Warren
met Morrow in Morrow’s car around 5 p.m. that day.
Before the sale could be completed, a scuffle broke out.
Morrow was shot multiple times. Warren fled the scene
with the marijuana and the gun; Morrow was discovered
and pronounced dead on the scene later that evening.
Warren was arrested in Chicago on June 24, 2002.
Prosecutors originally charged Warren with first-
degree intentional homicide, Wis. Stat. § 940.01, a charge
to which he pled not guilty on July 16, 2002. (R. 21-10.)
The criminal complaint included allegations that Warren
acquired the gun and arranged the marijuana sale with
the express intention of robbing Morrow and that Mor-
row’s death was the result of a heist gone wrong. The
court assigned a public defender, Cynthia Wynn, to
represent Warren.
No. 12-1148 3
From early in her representation, Wynn focused War-
ren’s attention on the possibility of a plea bargain. As
Warren now tells it, the only advice that Wynn gave
him prior to entering his plea was that if he went to
trial he would, in all likelihood, be found guilty and
sentenced to life in prison. Warren, with Wynn’s assis-
tance, ultimately came to an agreement on a plea deal
with the prosecutors. He agreed to plead no contest to
the reduced charge of first-degree reckless homicide
as party to a crime, while armed. Wis. Stat. §§ 939.05,
939.63, 940.02(1). According to the transcript of the plea
hearing, all parties understood that Warren pled “no
contest” rather than “guilty” because he was intoxicated
on the day in question and could not “recall all of the
facts surrounding the incident.” (R. 21-11 at 6); (id. at 13,
18.) He did agree (despite having been intoxicated) that
he brought the gun into Morrow’s car, that there was a
scuffle while in the car, and that the gun was fired
several times. (Id. at 13-15.) Warren additionally acknowl-
edged that Morrow was killed “as a result of [War-
ren’s] actions.” (Id. at 15.)
Soon after entering his plea, however, Warren began
attempting to withdraw it and expressing displeasure
with Wynn’s representation. The court granted Wynn’s
request to withdraw as counsel and appointed attorney
Theodore Nantz in her place. With Nantz as Warren’s
counsel, the court heard a motion to withdraw Warren’s
no contest plea and, on March 20, 2003, rejected the
motion as not meeting Wisconsin’s “fair and just rea-
son” standard. (R. 21-13.)
4 No. 12-1148
Warren appealed this decision to the Wisconsin Court
of Appeals with the help of Anne Bowe, yet another
appointed attorney. The Court of Appeals rejected War-
ren’s appeal in April 2005. (R. 21-6.) Warren next
petitioned the Wisconsin Supreme Court for review; the
court denied the petition in August 2005.
Warren continued his quest to withdraw the plea
through Wisconsin’s collateral review process. See Wis.
Stat. § 974.06. This time, Warren alleged ineffective assis-
tance of his various attorneys and that his sentence was
too harsh because his attempt to withdraw his plea
was held against him. The state trial and appellate
courts denied his petitions, and the Wisconsin Supreme
Court denied his request for review.
After exhausting his state court remedies, Warren
filed a pro se petition for a writ of habeas corpus in the
federal district court. Warren again alleged a mix of
ineffective assistance and due process claims. Like the
state courts, the district court denied relief. Warren v.
Pollard, No. 09-C-919, 2011 WL 6016630, at *1 (E.D. Wis.
Nov. 30, 2011). The district court did, however, grant
Warren a certificate of appealability on five of the
eight claims he raised: (1) whether trial counsel Wynn
provided effective assistance; (2) whether Warren
was denied due process when he was not allowed to
withdraw his plea; (3) whether sentencing counsel
Nantz provided effective assistance; (4) whether Warren
was denied due process at his sentencing hearing; and
(5) whether appellate counsel Bowe provided effective
assistance. (R. 34.) Warren timely appealed the denial of
No. 12-1148 5
his petition to this court. Accordingly, we review each
of the five issues raised in rough chronological order.
II. A NALYSIS
Although we review all questions of law from a dis-
trict court’s denial of a habeas corpus petition de novo,
Emerson v. Shaw, 575 F.3d 680, 685 (7th Cir. 2009), our
consideration of Warren’s petition is tightly circum-
scribed. The Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) provides that we may grant a
writ of habeas corpus to a petitioner whose claim has
been adjudicated on the merits in state court if the
state court decision “was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States,” 28 U.S.C. § 2254(d)(1), or if the relevant
state court decision “was based on an unreasonable
determination of the facts,” 28 U.S.C. § 2254(d)(2). Warren
roots his challenges in § 2254(d)(1). A state court deci-
sion is “contrary to . . . clearly established Federal law”
if the court did not apply the proper legal rule, or, in
applying the proper rule, reached the opposite result as
the Supreme Court on “materially indistinguishable”
facts. Brown v. Payton, 544 U.S. 133, 141 (2005). A state
court decision is an “unreasonable application of . . .
clearly established Federal law” when the court applied
Supreme Court precedent in “an objectively unrea-
sonable manner.” Id.
This standard is particularly exacting. “[A] state
prisoner must show that the state court’s ruling on the
6 No. 12-1148
claim being presented in federal court was so lacking
in justification that there was an error well understood
and comprehended in existing law beyond any pos-
sibility for fairminded disagreement.” Harrington v.
Richter, 131 S. Ct. 770, 786-87 (2011). “[A] federal habeas
court may not issue the writ simply because that court
concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that ap-
plication must be objectively unreasonable.” Lockyer v.
Andrade, 538 U.S. 63, 75-76 (2003) (internal citation and
quotation marks omitted). “If this standard is difficult
to meet, that is because it was meant to be.” Richter, 131
S. Ct. at 786.
However, AEDPA’s deferential standard only applies
to claims that were actually “adjudicated on the merits
in State court proceedings.” 28 U.S.C. § 2254(d). In that
case, the decision we review “is that of the last state
court to address a given claim on the merits.” Harris
v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012). “When a
federal claim has been presented to a state court and
the state court has denied relief, it may be presumed
that the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural
principles to the contrary.” Richter, 131 S. Ct. at 784-85.
But that “presumption may be overcome when there
is reason to think some other explanation for the state
court’s decision is more likely.” Id. at 785. When no
state court has addressed the merits of the federal con-
stitutional issue, “the claim is reviewed de novo.” Cone
v. Bell, 556 U.S. 449, 472 (2009).
No. 12-1148 7
A. Ineffective Assistance of Trial Counsel
Whether trial counsel Wynn provided Warren with
effective assistance is a question that echoes through
each of the other issues in this case. Accordingly we take
it up first. In brief, we agree with the district court that
we cannot grant Warren’s petition on this ground.
The standard governing Warren’s ineffective assist-
ance of counsel claim is the familiar two-prong Strickland
v. Washington test. 466 U.S. 668 (1984). To demonstrate
that Wynn violated Warren’s Sixth Amendment right
to effective assistance of counsel, he must show first
that her performance fell below “an objective standard
of reasonableness,” id. at 688, and that she committed
“errors so serious that [she] was not functioning as the
‘counsel’ guaranteed [Warren] by the Sixth Amendment,”
id. at 687. In evaluating Warren’s argument, we “must
indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.” Id. at 689. And to satisfy the second
prong, Warren must prove that Wynn’s constitutionally
deficient performance (if any) prejudiced him, i.e., that
her “errors were so serious as to deprive [Warren] of a
fair trial, a trial whose result is reliable.” Id. at 687. This
means that Warren “must show that there is a rea-
sonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694.
With that backdrop in mind, we proceed to the specifics
of Warren’s case. He alleges two broad categories of
error on Wynn’s part: a failure to investigate and a
8 No. 12-1148
failure to communicate. We address those alleged failures
in turn.
1. Failure to investigate
Warren alleges that Wynn failed to investigate wit-
nesses that potentially could have showed that Warren
had a valid self-defense claim, and additionally that
Wynn failed to investigate Warren’s mental competence
to enter his plea. In a failure to investigate case, a defen-
dant must prove that evidence uncovered during that
investigation would have led the attorney to change
her recommendation to accept the plea offer. Hill
v. Lockhart, 474 U.S. 52, 59 (1985). “This is an objective
analysis that requires us to examine what a reasonable
person would do.” Richardson v. United States, 379 F.3d
485, 488 (7th Cir. 2004) (per curiam) (citing Hill, 474 U.S.
at 60).
a. Witness statements
Warren first argues that Wynn was ineffective be-
cause she failed to investigate a statement included in
the police report on Morrow’s killing. The statement at
issue was a third-hand description of some of the events
that led to Morrow’s death. Mary Washington, a local
resident, apparently observed two people struggling in
the front seat of Morrow’s car as she arrived home
after work. Mary relayed this story to her sister, Linda
Washington, the next day when she discovered that a
killing had taken place. Linda, in turn, gave a statement
No. 12-1148 9
to the police. Warren characterizes Mary Washington
(and perhaps Linda) as a “potential witness who could
corroborate a self defense claim.” (Appellant’s Br. at 10.)
Warren argued to the Wisconsin state court on post-
conviction review, and argues to us here, that Wynn’s
failure to further investigate this statement in the police
report constituted ineffective assistance of counsel.
We begin by looking for “the last state court [opinion]
to address a given claim on the merits.” Harris, 698
F.3d at 623. The Wisconsin Court of Appeals rejected
Warren’s motion for post-conviction relief on res judicata
grounds, describing his ineffective assistance claims as
a mere “re-characterization” of the arguments he had
made (and that were rejected) on direct appeal. (R. 21-1
at 6) (citing State v. Witkowski, 473 N.W.2d 512, 514 (Wis.
Ct. App. 1991)). Following the court’s implicit instruc-
tion, then, to look to the Court of Appeals’s decision on
direct appeal for a decision on the merits, we find that
this court decided a related, but distinct, issue. Specif-
ically, it held that Warren’s knowledge of the availability
of self-defense as an affirmative defense to first-degree
intentional homicide did not provide a “fair and just
reason” to withdraw his plea to first-degree reckless
homicide. Because there is no such defense to reckless
homicide, Warren’s intent at the time of the crime was,
according to the court, irrelevant. As a determination
of Wisconsin state law, we must presume that is correct.
See, e.g., Wainwright v. Sykes, 433 U.S. 72, 81 (1977) (“in the
context of a federal habeas proceeding [courts are] ex-
cluded from consider[ing] any questions of state sub-
stantive law”). But it does not fully address the ineffec-
10 No. 12-1148
tive assistance issue. Recall that the relevant ineffective
assistance question is whether evidence that an attorney
failed to investigate would have led the attorney to
change her plea recommendation. Hill, 474 U.S. at 59.
Knowing about a potential self-defense claim might not
be directly relevant to reckless homicide; indeed the
state court definitively held that it was not. But self-
defense evidence would be relevant to the decision on
whether to plead to reckless homicide to avoid prosecu-
tion for intentional homicide. The self-defense evidence
might make an intentional homicide conviction much
less likely. And without the threat of an intentional homi-
cide conviction hanging over her client’s head, an
attorney might be much less likely to recommend that
the client plead to a lesser charge.
Thus, the state court’s opinions did not actually
address the constitutional issue at stake here. Cone v. Bell
is an apt guide for this circumstance. 556 U.S. 449. There,
the state post-conviction court bypassed a Brady claim
because it erroneously believed that the issue had been
addressed on direct appeal. Id. at 460. Because the state
courts did not reach the merits, AEDPA deference did
not apply and de novo review was proper. Id. at 472.
Similarly, we review this aspect of Warren’s ineffec-
tive assistance of counsel claim de novo.1 Even with
1
The additional wrinkle in this case is that the state trial
court did address Warren’s Strickland claim on post-conviction
review. We are loathe to defer to that decision, however,
(continued...)
No. 12-1148 11
de novo review, however, Warren’s arguments are
not convincing.
Warren essentially makes the argument we have laid
out above. It matters, says Warren, that the initial charge
he was facing, first-degree intentional homicide, has a
mens rea requirement. Therefore, the availability of
a witness who could testify that Warren was defending
himself would have changed Wynn’s advice, and conse-
quently Warren’s decision to plead. As we have dis-
cussed already, this argument is not without force.
One could imagine evidence that might have changed,
perhaps dramatically, Warren’s bargaining position vis-à-
vis the prosecution in pre-trial negotiations. Such evi-
dence might have led a reasonable attorney to change
her recommendation to plead.
Here, however, we are not persuaded that Warren
overcomes the initial hurdle of proving that, “but for
[Wynn]’s unprofessional errors, the result of the proceed-
ing would have been different.” Strickland, 466 U.S. at 694.
There was nothing in the Washingtons’ statements that
would support Warren’s self-defense claim. The descrip-
tion of a “struggle” in the car could have just as easily
described the version of events presented by the prosecu-
1
(...continued)
because it was superceded, albeit, we think, erroneously, by
the subsequent Wisconsin Court of Appeals opinion. We
think addressing the issue de novo strikes the proper note of
respect for the Wisconsin courts, while still ensuring that
we fulfill our appropriate function on habeas corpus review.
12 No. 12-1148
tion. Indeed, all parties already agreed that some sort of
struggle occurred in Morrow’s car; the Washingtons’
statements did not add anything new to Warren’s hypo-
thetical defense. While one could imagine evidence
that would have changed the plea calculus, the
Washingtons’ statements are not that evidence. On the
basis of the Washingtons’ statements it is profoundly
unlikely that Wynn would have changed her advice
that Warren plead to first-degree reckless homicide—and
that is the rub. See Hill, 474 U.S. at 59 (stating that
the prejudice inquiry in a failure to investigate/plea
scenario “will depend on the likelihood that discovery
of the evidence would have led counsel to change his
recommendation as to the plea. This assessment, in turn,
will depend in large part on a prediction whether the
evidence likely would have changed the outcome of a
trial.”). Thus, we do not think that Warren is able
to show prejudice from Wynn’s alleged failure to inves-
tigate the Washingtons’ statements. Accordingly, we
cannot grant Warren’s petition on this basis.
b. Investigation into Warren’s competence
Warren also alleges that Wynn’s failure to investigate
his mental competence amounted to unconstitutionally
ineffective assistance of counsel. Warren bases this argu-
ment primarily on a pre-sentencing psychiatric evalua-
tion that Wynn commissioned. The evaluating doctor,
Dr. Robert Rawski, diagnosed Warren with “Major De-
pression with Psychotic Features” and “Polysubstance
Dependence”; he also said that Warren was possibly “suf-
No. 12-1148 13
fering from the early stages of Schizophrenia.” (R. 21-3
at 58.) Warren argues that Wynn should have requested
an evaluation prior to the plea hearing for the purpose
of determining whether Warren was competent to enter
his plea and that Wynn’s failure to do so was uncon-
stitutionally deficient. Requesting a competence evalua-
tion and hearing, Warren contends, would have led to
a “reasonable probability that . . . the court would have
found that Warren was not competent to stand trial.”
(Appellant’s Br. at 31.) We disagree.
As an initial matter, it is not clear that Warren raised
this issue in the state courts. Rather, Warren made the
related, though distinct, argument that Wynn was inef-
fective for failing to further investigate his mental health
at the time of the offense as a potential defense at trial.
Normally, on habeas appeals, we do not consider claims
that have not been fairly presented to state courts and
would now be procedurally barred by those courts. Ward
v. Jenkins, 613 F.3d 692, 696 (7th Cir. 2010). That said,
we also construe pro se petitions, such as Warren’s
during state post-conviction review, liberally when de-
termining whether a claim has been fairly presented. Id.
at 697. Furthermore, the state does not argue default
here, and, as such, has forfeited the argument. See
Perruquet v. Briley, 390 F.3d 505, 519 (7th Cir. 2004) (“failure
to raise the defense [of procedural default] in a timely
manner will result in a forfeiture”). Because the Wisconsin
state courts have not addressed the merits of this claim,
our review is de novo. Cone, 556 U.S. at 472.
Again, we turn to the two-pronged Strickland test, and
note that “[c]ounsel has an obligation either to investi-
14 No. 12-1148
gate possible defenses or make reasonable decisions
that particular investigations are unnecessary.” Burt v.
Uchtman, 422 F.3d 557, 566 (7th Cir. 2005) (citing Kimmel-
man v. Morrison, 477 U.S. 365, 385 (1986)). In cases where
a defendant contends that he received ineffective
assistance because his attorney failed to request a com-
petency hearing, “we have interpreted the [Strickland]
prejudice inquiry as asking whether there is a rea-
sonable probability the defendant would have been
found unfit had a hearing been held.” Id. at 567. To de-
termine whether a defendant is competent, we ask
“whether he has sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well
as factual understanding of the proceedings against him.”
Id. at 564 (quoting Dusky v. United States, 362 U.S. 402, 402
(1960)).2
We find nothing in the evidence that Warren
marshaled to suggest that there was reasonable prob-
ability that he would have been found unfit. Though
Dr. Rawski’s report indeed diagnosed Warren with
mental illnesses and prescribed medication, it did not
describe him as not competent to understand the legal
proceedings. Rather, Dr. Rawski described Warren as
“articulate” and “goal-directed.” (R. 21-3 at 58.) Dr. Rawski
also reported that Warren’s “[c]ognition was intact”
2
We note too that the constitutional standard for competence
to enter a plea is the same as the standard to go to trial.
Godinez v. Moran, 509 U.S. 389, 398-99 (1993).
No. 12-1148 15
and that his “[i]ntelligence is average.” (Id.) Warren
offers us no other evidence—such as affidavits from
those who interacted with him or previous medical
records—that would show that he was incapable of
understanding the legal proceedings or assisting his
lawyer at the time he made his plea. The plea colloquy
evidences that Warren had rationally considered his
options with his attorney, (R. 21-11), as does the tran-
script of the pre-plea scheduling conference, (R. 21-10).
Indeed, Warren has also presented us with letters he
wrote soon after his plea, in which he requested new
counsel and that he be allowed to change his plea. All
this evidence suggests a rather advanced understanding
of the legal process and that Warren had a “rational as
well as factual understanding of the proceedings.” Burt,
422 F.3d at 564. Lacking any basis for the proposition
that Warren was unfit to enter his plea, we cannot
find that there was any prejudice to Warren in Wynn’s
failure to request a pre-plea competency hearing.
Warren offers us Burt to support his argument that
Wynn was ineffective. Rather than providing support,
however, Burt illuminates what we find lacking in War-
ren’s petition. In Burt, an Illinois statute mandated that
any defendant taking psychotropic medication at the
time of trial (a population that included Burt) receive
a fitness hearing. Burt’s lawyers were unaware of this
mandate. Id. at 567. Further, Burt’s attorneys had many
first-hand experiences with their client that should
have led them to question his competence, even absent
Illinois’s requirement, including: they found it necessary
to meet with him every day prior to court to “evaluate
16 No. 12-1148
his mental state”; they were concerned that the county
jail was administering his psychotropic medications
irregularly; Burt “demonstrated belligerent or explosive
behavior,” both in and out of the courtroom; and his
attorneys were “continually afraid that Burt would
commit violent acts in court.” Id. at 568. One attorney
even stated in an affidavit that he believed “Burt did not
fully comprehend legal advice and that his behavior
throughout the trial, particularly his decision to change
his plea to guilty, was not rational.” Id. All of these
facts, and several others in the same vein, led us to con-
clude that Burt’s attorneys were deficient for failing
to request a competency hearing and “establish[ed] a
reasonable probability that Burt would have been found
incompetent at the time he pleaded guilty.” Id. at 569.
Warren has not offered any such evidence here.
Unlike Illinois, paragraph (2) of the Wisconsin statute
specifically provides that “[a] defendant shall not be
determined incompetent to proceed solely because med-
ication has been or is being administered to restore
or maintain competency.” Wis. Stat. § 971.13(2). And
indeed the record, rather than establishing a rea-
sonable probability that Warren would have been found
incompetent, shows that Warren met the constitutional
standard for competence to enter a plea. Dr. Rawski’s
report described Warren’s cognition as “intact,” (R. 21-3
at 58), and Warren evinced a thorough understanding
of the proceedings against him throughout. We therefore
cannot find Wynn ineffective for failing to request a pre-
plea competency hearing and cannot grant Warren’s
petition on this ground.
No. 12-1148 17
2. Failure to communicate
Warren next alleges a variety of communication-
based errors. He says that Wynn did not adequately
explain the original intentional homicide charge. Warren
also alleges that Wynn neither provided him with
a copy of the police report containing the Washing-
tons’ statements nor explained the possibility of
mounting a self-defense affirmative defense with him.
As with the initial failure to investigate claim, the state
court bypassed Warren’s claim, so our review is de novo.
Cone, 556 U.S. at 472. Strickland itself provides that
an attorney can fall below the objectively reasonable
level of performance by failing to “keep the defendant
informed of important developments in the course of
the prosecution.” 466 U.S. at 688. But, even assuming
that Wynn’s performance failed to meet the standard
in this case (and we need not opine on that), to find
a constitutional violation, we must find prejudice to the
defendant. Id. at 687. “[I]n order to satisfy the ‘prejudice’
requirement, the defendant must show that there is a
reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have in-
sisted on going to trial.” Hill, 474 U.S. at 59. The crux of
Warren’s argument is that, had he been aware of the
information he alleges Wynn withheld, he would have
gone to trial and claimed self-defense. When a petitioner
makes that claim, our prejudice analysis “will depend
largely on whether the affirmative defense likely would
have succeeded at trial.” Id. Moreover, this analysis
“should be made objectively, without regard for the idio-
syncrasies of the particular decisionmaker.” Id. at 60
18 No. 12-1148
(internal quotation marks omitted). As we described
above, there is simply nothing that would lead us to
conclude that it is reasonably probable that the self-
defense argument would have succeeded or that it
would have been objectively reasonable to reject the
plea deal. Accordingly, Warren cannot prove preju-
dice, and therefore cannot prevail on this ineffective
assistance claim.
B. Due Process Violation for Plea Withdrawal
Warren next complains that his due process rights
were violated when the state trial court refused to let
him withdraw his no contest plea. This claim is closely
related to Warren’s complaints about the representation
he received from Wynn. Specifically, he argues that
his plea was not knowing or voluntary due to Wynn’s
ineffective assistance, and additionally that he may
not have been competent to even enter the plea. We
cannot find merit in either argument.
As with his claim that Wynn was ineffective for failing
to request a competency hearing prior to the plea, it is
not clear to us that Warren presented a due process
argument to the state courts with regard to his plea.
While Warren repeatedly petitioned the Wisconsin
courts to withdraw his plea, his pro se arguments were
couched in state law rather than federal constitutional
protections. To be sure, the Wisconsin standard that a
plea must be knowingly, intelligently, and voluntarily
entered is the same as the constitutional due process
No. 12-1148 19
standard. See Wis. Stat. § 971.08; see also Parke v. Raley,
506 U.S. 20, 28-29 (1992). But here again, the state does
not argue default and so any default argument has
been forfeited. Perruquet, 390 F.3d at 519. Regardless,
even under the more permissive de novo standard
of review, Warren’s arguments fail.
To survive a due process challenge, a plea must be
knowing, voluntary, and intelligently entered. Id. The
defendant bears the burden of proving that a plea did
not meet those requirements. Virsnieks v. Smith, 521
F.3d 707, 714-15 (7th Cir. 2008). Generally, “pleas are
accorded a great measure of finality because they are
important components of this country’s criminal justice
system.” Id. at 714 (internal quotation marks omitted).
To determine whether a plea was knowing and
voluntary, a court must look at “all of the relevant cir-
cumstances surrounding it.” Id. “To enter a voluntary
and intelligent plea, a defendant must have full
awareness of the plea’s direct consequences, real notice
of the true nature of the charge against him, and under-
stand the law in relation to the facts.” Id. (in-
ternal quotation marks and citations omitted). “How-
ever, lawyers need not inform their clients of every pos-
sible defense, argument, or tactic, especially one not
suggested by any evidence at the time.” St. Pierre
v. Walls, 297 F.3d 617, 635 (7th Cir. 2002) (emphasis omit-
ted).
20 No. 12-1148
1. Trial counsel’s assistance and the plea
Warren presents three potential reasons that his plea
could have been unknowing based on Wynn’s assistance:
he claims that he was unaware that he had the ability
to pursue a self-defense claim at an intentional homicide
trial; he says that he was unaware that there were wit-
nesses who could support a self-defense claim; and
he says that he did not know that the basis for the in-
tentional homicide charge was wrong. The record does
not support Warren on any of these points. Instead, it
shows a defendant who understood the bargain he
was making and who was informed of his rights.
Warren agreed during the plea colloquy that he under-
stood the defenses he was relinquishing. (R. 21-11 at 10.)
He now contends, without additional support, that his
statement was incorrect, or at least incomplete as it
related to self-defense and the original intentional homi-
cide charge. It strains our credulity to believe that
Warren did not know that self-defense could be pre-
sented as a defense to intentional homicide. We need
not rely on our instincts, however. During the plea
hearing (and before the plea was finalized), Wynn, the
trial judge, and the prosecutor had a discussion re-
garding self-defense considerations, noting that Wynn
had discussed the defense with Warren, and even citing
a recent Wisconsin case as a motivating factor for the
charge being reduced and the acceptance of the plea
deal. (R. 21-11 at 18-19.) Therefore, Warren asks us to
ignore not only his statements to the court and common
sense, but also a discussion that occurred in open court,
No. 12-1148 21
in his presence. That we will not do. We refuse to find
that Warren’s plea was unknowing because he lacked
knowledge of a potential defense that had been dis-
cussed in his presence immediately before his plea
was accepted.
As for the claim of the supposed supporting wit-
nesses, we have already addressed the issue. There is
nothing in the police report, and Warren has presented
nothing since, that indicates that the Washingtons ac-
tually could have supported any claim of self-defense.
Given that, Warren’s alleged lack of knowledge cannot
be the basis for overturning his plea.
Warren’s next argument—that he did not know the
basis for the intentional homicide charge was wrong—is
also unsupported by the record. Warren argues that
the original charge was based on the incorrect allega-
tion that he planned to rob Morrow. He says that, had
he been aware of the allegation, he would not have
agreed to plead to a lesser charge. The argument that
he was unaware of the robbery allegation is simply not
true. The police report reflects the fact that officers ex-
plicitly presented Warren with the allegation after his
arrest and that he denied it. (R. 21-8 at 47.) Warren does
not challenge the report’s veracity (nor did he at any
other time). Furthermore, the transcript of the plea
hearing indicates that Wynn discussed the robbery
theory with Warren. (R. 21-11 at 12-15, 18-19.) Indeed,
nothing that Warren asserts leads us to the conclusion
that the plea was unknowing, involuntary, or unintel-
ligent on account of Wynn’s assistance.
22 No. 12-1148
2. Competence to enter the plea
Similarly, we cannot find a due process violation in
the plea based on Warren’s alleged lack of mental capac-
ity. Again, we look at “all of the relevant circumstances
surrounding” the plea. See Brady v. United States, 397 U.S.
742, 749 (1970). Here, Warren does not allege that
he actually lacked the capacity to enter a knowing
and voluntary plea, however, and offers no evidence
other than Dr. Rawski’s report on the issue. Instead, he
argues that he was denied due process because his
capacity was not determined and the report raises
“serious questions.” (Appellant’s Br. at 35.) Warren “might
not” have been competent to enter his plea as he
argues, (id. at 36), but given all of the available evidence
(including Dr. Rawski’s report), that possibility appears
very unlikely. To recap: Dr. Rawski described Warren
as “articulate” and “goal-directed” and stated that War-
ren’s “[c]ognition was intact.” (R. 21-3 at 58.) Warren
ably participated throughout the legal proceedings. As
Warren correctly notes, due process requires a court
to order a competency hearing when there is “bona fide
doubt as to the defendant’s competency.” Burt, 422 F.3d
at 564. We cannot find any such doubt in the evidence
Warren presents. Some theoretical uncertainty is not
enough to form the basis of a due process violation.
C. Ineffective Assistance of Sentencing Counsel
Warren next alleges that Theodore Nantz, the court-
appointed attorney who succeeded Wynn, was also
unconstitutionally ineffective. Warren argues that Nantz
No. 12-1148 23
was ineffective for failing to raise the same issues he
claims Wynn should have raised: that the court could
not be certain Warren was competent to enter the plea,
and that Warren’s alleged lack of knowledge of the
Washingtons’ statements led to his plea being unknow-
ing. Again, the state court bypassed this argument, and
we review it de novo. Cone, 556 U.S. at 472. Setting aside
the fact that a defendant is not entitled to have coun-
sel raise every non-frivolous claim, Jones v. Barnes, 463
U.S. 745, 754 (1983), we have found that these argu-
ments lack merit. Counsel is not ineffective for failing to
raise meritless claims. United States v. Stewart, 388 F.3d
1079, 1085 (7th Cir. 2004); Steward v. Gilmore, 80 F.3d 1205,
1212 (7th Cir. 1996).
D. Due Process Violation for Sentencing
Warren next argues that the state trial court violated
his due process rights by considering his attempted plea
withdrawal against him. Specifically, the court character-
ized Warren as attempting to “weasel out of” his plea
bargain. (Appellant’s Br. at 43.) The government urges
us to refrain from considering this claim because the
Wisconsin state courts held that it was procedurally
defaulted. (Appellee’s Br. at 59); (R. 21-2 at 7). Warren
counters by arguing that, if the claim has merit, Bowe’s
ineffective assistance, for failing to raise the claim on
direct appeal, could potentially excuse his procedural
default. (Appellant’s Reply Br. at 18) (citing Martinez
v. Ryan, 132 S. Ct. 1309, 1316 (2012)).
24 No. 12-1148
We note first that Warren has certainly defaulted
this argument by failing to comply with proper
Wisconsin procedure. See Farmer v. Litscher, 303 F.3d
840, 846 (7th Cir. 2002) (“A federal court will not review
a question of federal law decided by a state court if
the state-court decision rests on a state procedural
ground that is independent of the federal question and
adequate to support the judgment”); State v. Escalona-
Naranjo, 517 N.W.2d 157, 162 (Wis. 1994) (claims that the
defendant failed to raise may not be the basis for post-
conviction relief, unless the court determines that there
was a “sufficient reason” for the failure). Because we
must consider the possibility of excuse, though, we take
up the merits of Warren’s due process argument here
and find that the claim lacks merit. Again, no state
court considered the merits of Warren’s argument, so
we review the issue de novo. Cone, 556 U.S. at 472.
A defendant is entitled to have sentencing determina-
tions made based on reliable evidence rather than specu-
lation or unfounded allegations. See, e.g., United States
v. England, 555 F.3d 616, 622 (7th Cir. 2009). Because the
judge is the factfinder at sentencing, however, he may
draw reasonable conclusions about the testimony and
evidence presented. United States v. Hankton, 432 F.3d
779, 786 n.14 (7th Cir. 2005). The “key inquiry” posed by
a due process challenge to a sentencing determination
is whether the court’s findings “were sufficiently based
on reliable evidence to satisfy due process, or if they
amount to speculation.” England, 555 F.3d at 622
(internal quotation marks omitted). “Evidence will
satisfy the reliability requirement if it bears sufficient
No. 12-1148 25
indicia of reliability to support its probable accuracy.”
Id. (internal brackets and quotation marks omitted).3
During sentencing, while discussing whether Warren
accepted responsibility for his crimes, the state trial
court judge made the following remark:
So far as taking responsibility is concerned, it
seems to be whatever suits you and whatever is
in your best interest at the time. And it appeared
a week or two ago it was in your best interest to
try to weasel out of this plea, so-to-speak, and not
take responsibility because you didn’t really
like the recommendation of the presentence writer.
(R. 21-14 at 12.) Warren characterizes this as an instance
where the court relied on an incorrect assumption to
determine the sentence, an error that might warrant
overturning the sentence. We think this misconstrues
the record, and as such, is not a basis for granting
Warren’s petition.
The court’s comment that Warren was trying to
“weasel out of” his no contest plea came during
the court’s appraisal of Warren’s acceptance of responsi-
3
The district court interpreted Warren’s pro se petition to
implicate judicial bias. Warren, 2011 WL 6016630, at *3 (dis-
cussing Franklin v. McCaughtry, 398 F.3d 955 (7th Cir. 2005)).
Warren has clarified on appeal that his due process con-
cern relates to reliability, and, accordingly, we address
that argument.
26 No. 12-1148
bility. Read in that context, we think the court was at-
tempting to explain, if perhaps inartfully, why it did not
credit the reliability of Warren’s expressions of remorse.
Warren’s statements of acceptance flatly contradicted
the arguments he made to the court in attempting to
withdraw his plea. This, understandably, caused the
court to be skeptical of both Warren’s purported accep-
tance of responsibility as well as his motives for at-
tempting to withdraw the plea.
When we are called upon to review a federal district
court’s appraisal of a defendant’s acceptance of responsi-
bility, we give great deference to the trial court. See
United States v. Gilbertson, 435 F.3d 790, 798-99 (7th Cir.
2006). We do so because the trial judge is uniquely posi-
tioned to assess the credibility of the defendant before
her. See United States v. Cunningham, 103 F.3d 596, 598
(7th Cir. 1996). Such deference is also appropriate here.
The state trial judge was in a much better position to
gauge whether Warren was “motivated by genuine ac-
ceptance of responsibility or by a self-serving desire to
minimize his own punishment,” a task that appellate
judges are “ill-equipped” to carry out. Id. The incon-
sistency between Warren’s argument to withdraw his
plea and his ostensible acceptance of responsibility is
a sufficient indicium of reliability to satisfy due process.
Because this claim lacks merit, Bowe could not have
been ineffective for failing to raise it, and Warren’s pro-
cedural default in the state court is not excused.
No. 12-1148 27
E. Ineffective Assistance of Appellate Counsel
Finally, Warren argues that his counsel on direct
appeal—Bowe—was also unconstitutionally ineffective
for failing to raise the ineffective assistance claims re-
garding Wynn and Nantz. This is yet another claim that
the state court bypassed, and our review is again de novo.
Cone, 556 U.S. at 472. The framework for assessing the
constitutional effectiveness of appellate counsel is the
same two-pronged Strickland test as for effectiveness
of trial counsel. Smith v. Robbins, 528 U.S. 259, 285
(2000); Howard v. Gramley, 225 F.3d 784, 789-90 (7th Cir.
2000). Because we did not find merit in the previous
two ineffective assistance claims (or in the due pro-
cess claim), we cannot find Bowe unconstitutionally
deficient for failing to raise them. It is axiomatic that
Warren was not prejudiced by this failure. See Johnson
v. Thurmer, 624 F.3d 786, 793 (7th Cir. 2010). Accord-
ingly, we cannot grant Warren’s petition on this ground
either.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the district
court’s denial of the petition for a writ of habeas corpus.
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