Robert Lee-Kendrick v. Scott Eckstein ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21‐1044
ROBERT D. LEE‐KENDRICK,
Petitioner‐Appellant,
v.
SCOTT ECKSTEIN,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 15‐CV‐1117 — Nancy Joseph, Magistrate Judge.
____________________
ARGUED MARCH 31, 2022 — DECIDED JUNE 28, 2022
____________________
Before MANION, HAMILTON, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. A jury convicted Robert Lee‐
Kendrick of sexually assaulting three girls. In this appeal from
a denial of his habeas petition under 28 U.S.C. § 2254, he chal‐
lenges those convictions, arguing his trial and postconviction
counsel provided ineffective assistance. But his claim con‐
cerning failure to call an impeachment witness was denied on
an adequate and independent state‐law ground, and thus is
procedurally defaulted. That default is not excused by cause
2 No. 21‐1044
and prejudice. So, federal review is foreclosed, and we affirm
the district court.
I
Robert Lee‐Kendrick, a recording artist and music pro‐
ducer, bought a mansion in the exclusive Milwaukee suburb
of River Hills. Most weekends and in the summer, some of his
children and many of their friends stayed at the seven‐bed‐
room, seven‐bathroom residence which featured a pool and a
recording studio.
Two girls reported that while they spent time at his house,
Lee‐Kendrick repeatedly sexually assaulted them, and that he
did so for years there and at other locations. A third girl also
said he assaulted her during a 15th birthday party for one of
the other victims.
Lee‐Kendrick was charged in Milwaukee County Circuit
Court with multiple counts of sexual assault of three girls un‐
der the age of sixteen: his biological daughter; his girlfriend’s
daughter, A.W.; and a friend of A.W. Initially, he pleaded no
contest to the charges, but he was later allowed to withdraw
those pleas and the case went to jury trial in June 2011.
Each girl testified she was sexually assaulted by Lee‐
Kendrick, which he denied. He said he provided the children
with things he never had growing up, but reflected that per‐
haps he had become too lenient. The girls were getting out of
control, Lee‐Kendrick said, and their accusations arose only
after he started limiting activities and taking away their cell
phones and allowances. There was no physical evidence link‐
ing Lee‐Kendrick to the charges, so the trial outcome turned
No. 21‐1044 3
on the jury’s assessment of the witnesses’ credibility.1 The jury
found Lee‐Kendrick guilty of the sexual assaults, although it
acquitted him of other charges. He was sentenced to 45 years
of initial confinement, followed by 30 years of extended su‐
pervision. He is currently a prisoner in Wisconsin’s custody.
By newly appointed postconviction counsel, Lee‐
Kendrick filed post‐trial motions, including one for a new
trial. He argued that his trial counsel provided ineffective as‐
sistance by not objecting to certain prejudicial cross‐examina‐
tion. The trial court denied the motions, the Wisconsin Court
of Appeals affirmed, and a petition for review to the Wiscon‐
sin Supreme Court was denied.
Next, Lee‐Kendrick, acting pro se, sought relief in state
trial court under Wisconsin’s postconviction procedure. WIS.
STAT. § 974.06. He argued his postconviction counsel pro‐
vided ineffective assistance by failing to raise his trial coun‐
sel’s ineffectiveness in numerous ways. Among these failures
was a claim that trial counsel should have called as a witness
Kendrella Keeler, a friend of accuser A.W. Lee‐Kendrick
points to a memorandum from an investigator for the Wis‐
consin State Public Defender which recounted an interview
with Keeler. She said—the day before A.W. reported being as‐
saulted by Lee‐Kendrick—that A.W. told Keeler of her plan to
get Lee‐Kendrick in trouble for coming between A.W. and her
mother. According to Lee‐Kendrick, the failure to call Keeler
prevented A.W.’s sexual assault allegations from being fully
tried because the jury could not properly evaluate A.W.’s
credibility without Keeler’s testimony.
1 See Wisconsin Criminal Jury Instruction 300, Credibility of Wit‐
nesses.
4 No. 21‐1044
The state trial court did not find Lee‐Kendrick’s claims
procedurally barred by State v. Escalona‐Naranjo, 517 N.W.2d
157 (Wis. 1994), which requires litigants to first raise claims
for postconviction relief on direct appeal. Although no hear‐
ing was held, the state trial court applied the standard of
Strickland v. Washington, 466 U.S. 668, 687–88 (1984), and ad‐
dressed the substance of Lee‐Kendrick’s arguments. Finding
them without merit, the state trial court denied his state post‐
conviction motion in a written decision.
The Wisconsin Court of Appeals affirmed. Like the state
trial court, the state appeals court relied on Wisconsin law,
which provides the defendant must show that the claims
postconviction counsel should have raised were clearly
stronger than those that were raised. State v. Romero‐Georgana,
849 N.W.2d 668, 679 (Wis. 2014). Although Lee‐Kendrick’s
motion correctly identified the “clearly stronger” test, his re‐
quest did not apply this measure by engaging in that compar‐
ison. The state appeals court also went beyond this omission
and, like the state trial court, concluded that Lee‐Kendrick’s
claims failed on their merits.
Lee‐Kendrick claimed he was prejudiced when his trial
counsel failed to call Keeler as a witness. But the state appeals
court reasoned that the attorney’s decision was not prejudicial
because Keeler had no direct knowledge of the sexual
assaults. Further, Keeler’s testimony would have been incon‐
sistent with the defense theory that A.W. fabricated allega‐
tions in a dispute about Lee‐Kendrick confiscating the
victims’ possessions. The Wisconsin Supreme Court denied
Lee‐Kendrick’s petition to review that decision.
Lee‐Kendrick then moved to federal court and petitioned
for habeas relief under 28 U.S.C. § 2254, as amended by the
No. 21‐1044 5
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Before the district court, Lee‐Kendrick argued
that his trial and postconviction counsel provided ineffective
assistance in various ways. He raised the issues from his di‐
rect appeal as well as from his state postconviction motion
under WIS. STAT. § 974.06. The court denied all of the claims,
although it issued a certificate of appealability on his conten‐
tion that postconviction counsel was ineffective by not chal‐
lenging his trial counsel’s failure to call Keeler as a witness.
Lee‐Kendrick appeals, and we granted his request for coun‐
sel.2
II
“When reviewing a district court’s ruling on a habeas cor‐
pus petition, we review the district court’s factual findings for
clear error and rulings on issues of law de novo.” Stern v. Meis‐
ner, 812 F.3d 606, 609 (7th Cir. 2016). “We review questions of
procedural default de novo.” Garcia v. Cromwell, 28 F.4th 764,
771 (7th Cir. 2022).
When our court’s review of this case began, we expanded
the certificate of appealability and asked the parties to ad‐
dress two procedural issues. The first is whether § 2254(i)—
which states “[t]he ineffectiveness or incompetence of counsel
during Federal or State collateral post‐conviction proceedings
shall not be a ground for relief”—forecloses a claim under
WIS. STAT. § 974.02, like Lee‐Kendrick’s claim that his post‐
conviction counsel was ineffective. The second is whether, in
any event, Lee‐Kendrick has shown that his postconviction
2 We thank Brian J. Paul, Esq. and Blake A. Angelino, Esq. of Faegre
Drinker Biddle & Reath LLP for accepting this appointment and for their
fine representation of Lee‐Kendrick in this appeal.
6 No. 21‐1044
counsel’s performance constitutes cause to excuse any proce‐
dural default of his claim that trial counsel was ineffective.
A. 28 U.S.C. § 2254(i) and an ineffective assistance of
counsel claim under WIS. STAT. § 974.02
The first question presents an interplay between the
AEDPA and Wisconsin’s specific statutory procedure for
postconviction review of ineffective assistance of counsel. We
look to state law to determine which state postconviction pro‐
ceedings are collateral and which are not. See Carey v. Saffold,
536 U.S. 214, 223 (2002) (“for purposes of applying a federal
statute that interacts with state procedural rules, we look to
how a state procedure functions”).
The answer to this first question turns on whether a claim
is made on collateral or direct review. If on collateral review,
then the plain text of § 2254(i) would expressly preclude relief.
In Huusko v. Jenkins, 556 F.3d 633, 635–36 (7th Cir. 2009), this
court considered whether a challenge to counsel’s perfor‐
mance under § 974.02 was properly within the scope of fed‐
eral habeas review. The concern, albeit expressed in dicta, was
that in the event a § 974.02 proceeding was part of a defend‐
ant’s direct appeal, prisoners across this circuit would enjoy
different federal rights based on the state in which they are
incarcerated. Id. at 636. On the other hand, if the ineffective
assistance of counsel claim under § 974.02 is part of the direct
appeal, § 2254(i) would not preclude review.
“In Wisconsin’s postconviction process, an offender’s ini‐
tial step in challenging a sentence is a postconviction motion
filed under Wis. Stat. § 974.02, which allows the trial court the
first opportunity to consider certain challenges.” Minnick v.
Winkleski, 15 F.4th 460, 465 n.2 (7th Cir. 2021) (citing Page v.
No. 21‐1044 7
Frank, 343 F.3d 901, 905–06 (7th Cir. 2003)). This step includes
a claim for ineffective assistance of counsel. After a conviction
in Wisconsin state trial court, a defendant is to initially seek
postconviction relief under § 974.02 in the trial court in which
the conviction was adjudicated. WIS. STAT. § 809.30. While all
arguments need not be raised in this motion to preserve them
for appeal, a claim of ineffective assistance of counsel must
first be brought in a § 974.02 motion. Page, 343 F.3d at 905–06
(citing to various Wisconsin state appellate authorities). If the
trial court denies the relief sought in the § 974.02 motion, the
defendant may appeal. After the deadlines for filing postcon‐
viction motions under § 974.02 and for taking a direct appeal
have expired, then the defendant can make a collateral attack
on the judgment under § 974.06. Such a collateral challenge
follows the same path as the direct appeal. Id. at 906. So, alt‐
hough an ineffective assistance of counsel motion under
§ 974.02 is part of the postconviction process, it is not a collat‐
eral proceeding. Rather, it is part of a direct appeal.
We have yet to decide this first question in a published
decision. But in an unpublished order, this court understood
that a § 974.02 motion was a step toward a defendant’s direct
appeal, rather than a collateral attack.3 The district court here
discussed this history and correctly assumed, without decid‐
ing, that § 2254(i) did not bar Lee‐Kendrick’s claim of ineffec‐
tive assistance of postconviction counsel. The parties also
agree that § 2254(i) does not bar Lee‐Kendrick’s claim.
Under Wisconsin’s postconviction statutory protocol, a
claim of ineffective assistance of counsel under WIS. STAT.
3 London v. Clements, 600 F. App’x 462 (7th Cir. 2015) (citing Nash v.
Hepp, 740 F.3d 1075, 1079 (7th Cir. 2014)).
8 No. 21‐1044
§ 974.02 is part of a direct appeal rather than a request for col‐
lateral review. We hold therefore that 28 U.S.C. § 2254(i) does
not foreclose an ineffective assistance of counsel claim under
WIS. STAT. § 974.02, such as Lee‐Kendrick’s.
B. Procedural Default
The second question on which this court issued a certifi‐
cate of appealability concerns Lee‐Kendrick’s claim that his
postconviction counsel should have challenged the effective‐
ness of trial counsel for failing to call Keeler to impeach A.W.
The State contends this claim is procedurally defaulted be‐
cause the denial of Lee‐Kendrick’s postconviction motion by
the Wisconsin Court of Appeals rested on an adequate and
independent state‐law ground—specifically, the procedural
bar recognized in Escalona‐Naranjo.
“[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the
state court denied based on an adequate and independent
state procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2064
(2017); Triplett v. McDermott, 996 F.3d 825, 829 (7th Cir. 2021).
For a procedural default, a state appeals court must have
“clearly and expressly” relied on that state procedural bar. Lee
v. Foster, 750 F.3d 687, 693 (7th Cir. 2014).
Adequacy requires that the state‐law ground be “firmly
established and regularly followed” and not applied in a way
that imposes “novel and unforeseeable requirements without
fair or substantial support in prior state law” or “discrimi‐
nate[s] against claims of federal rights.” Garcia, 28 F.4th at 775
(quoting Clemons v. Pfister, 845 F.3d 816, 820 (7th Cir. 2017)).
“A state law ground is independent when the court actually
relied on the procedural bar as an independent basis for its
No. 21‐1044 9
disposition of the case.” Id. at 774 (quoting Thompkins v.
Pfister, 698 F.3d 976, 986 (7th Cir. 2012)).
“When a state court rejects a prisoner’s challenge to his
conviction on an independent and adequate state‐law
ground, ‘principles of comity and federalism dictate against
upending the state‐court conviction’ and the federal claim is
deemed procedurally defaulted.” Id. at 771 (quoting Thomas v.
Williams, 822 F.3d 378, 384 (7th Cir. 2016)). “Unless the peti‐
tioner can establish ‘cause’ for and ‘prejudice’ from the
default, ‘federal habeas review is at an end.’” Id. (quoting
Johnson v. Thurmer, 624 F.3d 786, 789 (7th Cir. 2010)).
Here, the district court concluded that Lee‐Kendrick’s in‐
effective assistance of postconviction counsel claims were not
procedurally defaulted. Escalona‐Naranjo’s bar has been rec‐
ognized as an adequate and independent state‐law ground
for procedural default, that court acknowledged. But the dis‐
trict court read Page, 343 F.3d at 909, as ruling that Escalona‐
Naranjo does not preclude federal review of a defendant’s
claim that postconviction counsel was ineffective for failing to
raise deficiencies in trial counsel’s representation. The parties
dispute the scope of this court’s rulings in Page, and thus
whether the district court could correctly rely on that decision
to conclude that procedural default does not bar Lee‐
Kendrick’s claims of ineffective assistance of postconviction
counsel.
But that debate falls to the side after Garcia. There, we re‐
cently considered this exact question of whether the Escalona‐
Naranjo requirement—that claims for postconviction relief
must first be raised on direct appeal—can be an adequate and
independent state‐law ground for procedural default. In Gar‐
cia, this court reasoned:
10 No. 21‐1044
[U]nder section 974.06(4) and Escalona‐Naranjo,
all available claims for postconviction relief
must be raised in a first postconviction motion
under section 974.02 or on direct appeal. The
statute preserves a narrow gateway to merits re‐
view of a defaulted federal claim. To pass
through it, a prisoner must establish a “suffi‐
cient reason” for not bringing the claim earlier.
Ineffective assistance of postconviction counsel
may be a sufficient reason, but [State v.] Allen
[786 N.W.2d 124 (2010)] and [State v.] Romero‐
Georgana establish an additional procedural re‐
quirement—in the form of a special pleading
burden—when a prisoner’s section 974.06 mo‐
tion raises ineffective assistance of postconvic‐
tion counsel as a reason to excuse his procedural
default.
28 F.4th at 773–74.
The state appeals court had rejected Garcia’s second post‐
conviction motion based on the Escalona‐Naranjo bar and Gar‐
cia’s failure to satisfy Romero‐Georgana’s pleading standard
for overcoming procedural default. Those were adequate and
independent state procedural grounds, this court ruled, so
federal review was barred unless Garcia could establish cause
for and prejudice from his default, which he did not. Id. at 767.
Garcia thus stands for the proposition that the procedural bar
of Escalona‐Naranjo is an adequate and independent state‐law
ground that bars federal review.
The Wisconsin Court of Appeals decided that Lee‐
Kendrick’s claims were barred under the Escalona‐Naranjo
rule. The state appeals court “clearly and expressly” relied on
No. 21‐1044 11
that state procedural rule when it concluded that Lee‐
Kendrick had not sufficiently alleged that his unraised issues
were clearly stronger than those he raised on direct appeal.
Lee‐Kendrick did not apply the correct analysis, and instead
of comparing the new issues to those originally raised, he of‐
fered only a conclusory assertion.
The state appeals court’s decision relying on Escalona‐Na‐
ranjo rests on adequate and independent state‐law grounds.
We have previously recognized the adequacy of that case’s
rule. Garcia, 28 F.4th at 775 (concluding Escalona‐Naranjo is
“firmly established and regularly followed” rule of Wisconsin
postconviction procedure); see Whyte v. Winkelski, 34 F.4th 617,
624 (7th Cir. 2022); Perry v. McCaughtry, 308 F.3d 682, 690 (7th
Cir. 2002) (this court “has recognized the Escalona‐Naranjo
rule as an adequate state ground”).
The rule is also an independent state‐law ground. The
state appeals court’s actual reliance on the rule did not de‐
pend entirely on the merits of any federal issue. See Rodriguez
v. McAdory, 318 F.3d 733, 736 (7th Cir. 2003) (concluding state
law procedural ruling is independent for federal habeas pur‐
poses unless it was “entirely dependent on the merits”). Ra‐
ther, that reliance depended on Lee‐Kendrick’s failure to suf‐
ficiently develop his claim of ineffective assistance of counsel
on direct appeal. The state appeals court invoked the Escalona‐
Naranjo rule as an independent conclusion, although that
court also ruled that Lee‐Kendrick’s claims failed on the mer‐
its.
On this specific issue, then, we disagree with the district
court’s conclusion. The claims not raised in Lee‐Kendrick’s di‐
rect appeal were ultimately procedurally barred by Escalona‐
Naranjo, which rests on adequate and independent state‐law
12 No. 21‐1044
grounds. That procedural default thus bars Lee‐Kendrick’s
claims from habeas review.
An exception exists to this bar, though, if the defendant
“can demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law.” Coleman v.
Thompson, 501 U.S. 722, 750 (1991); Davila, 137 S. Ct. at 2064–
65. “’Cause’ is an objective factor external to the defense that
impeded the presentation of the claim to the state courts.”
Crutchfield v. Dennison, 910 F.3d 968, 973 (7th Cir. 2018) (quot‐
ing Davila, 137 S. Ct. at 2065). “A factor is ‘external to the de‐
fense’ only if it ‘cannot fairly be attributed to’ the prisoner.”
Id. (quoting Coleman, 501 U.S. at 753); see Garcia, 28 F.4th at
775.
We note first that Lee‐Kendrick brought his § 974.06 peti‐
tion pro se, which is when the procedural default occurred for
his claim of ineffective assistance of counsel in the § 974.02
proceeding. Yet, he cannot claim cause and prejudice based
on his own failure to comply with Wisconsin’s pleading rule.
Garcia, 28 F.4th at 775 (“errors by counsel in the first round of
postconviction proceedings cannot serve as cause to excuse
Garcia’s own default in the second”) (footnote omitted). Still,
we address the merits of Lee‐Kendrick’s claims under § 974.06
of ineffective assistance of his trial counsel and his postcon‐
viction counsel because the Wisconsin Court of Appeals did
so.
“An error amounting to constitutionally ineffective assis‐
tance is ‘imputed to the State’ and is therefore external to the
prisoner.” Davila, 137 S. Ct. at 2065 (quoting Murray v. Carrier,
477 U.S. 478, 488 (1986)). Lee‐Kendrick argues his trial counsel
was ineffective for failing to call witness Keeler, and that his
postconviction counsel’s failure to raise that claim in the state
No. 21‐1044 13
trial court’s § 974.02 proceeding constitutes the cause to ex‐
cuse any procedural default of that claim.
Whether an attorney’s ineffective assistance is sufficient to
overcome a procedural default is evaluated under the familiar
test of deficient performance and prejudice from Strickland.
Coleman, 501 U.S. at 752. For a claim of ineffective assistance
of appellate counsel, the deficient performance requirement
is not satisfied unless the unraised claim “was plainly
stronger than those actually presented to the appellate court.”
Davila, 137 S. Ct. at 2067. The same “clearly stronger” stand‐
ard applies for the claim that postconviction counsel was in‐
effective in selecting the issues for appeal. Romero‐Georgana,
849 N.W.2d at 679.
Lee‐Kendrick submits he meets this standard because wit‐
ness Keeler was not called, even though all agree the case
turned on the believability of the witnesses. To Lee‐Kendrick,
that makes his claim “clearly stronger” than the claims his
postconviction counsel raised on direct appeal that his trial
counsel was constitutionally ineffective for:
 failing to object to the State questioning Lee‐
Kendrick’s ability to pay for his house and
his affiliation with a known drug dealer; and
 failing to adequately impeach the testimony
of two of the victims.
But Lee‐Kendrick’s contention does not persuade. Keeler’s
statement to an investigator for the public defender about two
years before trial shows Keeler believed accuser A.W. was
lying about accusing Lee‐Kendrick of sexual assault. Yet, the
investigator’s memo says Keeler “thought [A.W.] was just
saying something,” and Keeler “thought nothing of it when
14 No. 21‐1044
[A.W.] said she was going to call the police on” Lee‐Kendrick.
Keeler told the investigator she was not an eyewitness to any
of the accusations, she was not familiar with one of the accus‐
ers, and she said “the situation had nothing to do with her.”
Keeler also had no knowledge of other girls asking A.W. to
accuse Lee‐Kendrick of sexual assault. Even more, Keeler’s
putative testimony—that A.W. wanted to get Lee‐Kendrick in
trouble for coming between A.W. and her mother—was in‐
consistent with the principal theory of defense at trial, which
was that the girls’ accusations were responses to Lee‐
Kendrick’s discipline of limiting their activities and taking
away their allowances and cell phones.
Further, as argued by Lee‐Kendrick’s postconviction
counsel before the Wisconsin Court of Appeals, how the de‐
fendant financed his River Hills mansion was significant to
the jurors. They asked for a copy of Lee‐Kendrick’s trial testi‐
mony and specifically wanted to know where he got the
money to purchase the house. And reference to Lee‐
Kendrick’s connection to a major criminal, Michael Lock, was
prejudicial because it portrayed him as part of a dangerous
crime organization. Failure to object to questions posed to
Lee‐Kendrick on these topics formed the basis of a substantial
(albeit unsuccessful) claim of ineffective assistance of trial
counsel.
The Keeler witness claim Lee‐Kendrick wanted his post‐
conviction counsel to raise about his trial counsel is at best
equivalent to—and not clearly stronger than—those argu‐
ments raised on direct appeal. So, he has not satisfied Strick‐
land’s deficient performance prong, and he has not shown
cause, or the “external impediment” that prevented him from
presenting this claim. Garcia, 28 F.4th at 775. Lee‐Kendrick
No. 21‐1044 15
also has not attempted to show prejudice, so we need not
reach that question. See Whyte, 34 F.4th at 628. Absent cause
and prejudice, his claim remains procedurally defaulted, and
federal habeas review ends.
Given this reasoning, we do not review the district court’s
merits conclusion that the state court correctly denied Lee‐
Kendrick relief on the Keeler witness claim, and we need not
reach Lee‐Kendrick’s request for an evidentiary hearing.
III
Lee‐Kendrick claims ineffective assistance of counsel for
an impeachment witness not being called at his 2011 jury trial
for sexual assaults. Such a claim under WIS. STAT. § 974.02 is
part of a direct appeal and not foreclosed by 28 U.S.C.
§ 2254(i). But his claim is procedurally defaulted because the
Wisconsin Court of Appeals denied his postconviction mo‐
tion on an adequate and independent state‐law ground—the
rule under Wisconsin law from State v. Escalona‐Naranjo, 517
N.W.2d 157 (Wis. 1994), that litigants must first raise claims
for postconviction relief on direct appeal. Lee‐Kendrick has
not established cause for and prejudice from this procedural
default. So, federal review is foreclosed of Lee‐Kendrick’s pe‐
tition for habeas relief. For these reasons, we AFFIRM the dis‐
trict court’s decision and order.