Alonso Corral v. Brian Foster ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1665
ALONSO CORRAL,
Petitioner-Appellant,
v.
BRIAN FOSTER,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 19-C-1809 — William C. Griesbach, Judge.
____________________
ARGUED MARCH 2, 2021 — DECIDED JULY 16, 2021
____________________
Before RIPPLE, HAMILTON, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. A jury convicted Alonso Corral of at-
tempted homicide after two men who knew him swore that
he shot at them. At trial, Corral presented a mistaken-identity
defense, urging that the real shooter was a 15-year-old named
“Kenny.” 1 Because Corral’s trial counsel believed that Corral
1 Because “Kenny” was a juvenile at the time of trial, the state court used
a pseudonym, as do we.
2 No. 20-1665
and Kenny did not look alike, he did not present evidence of
Kenny’s appearance. Corral argues that this decision was con-
stitutionally deficient. After failing to persuade state courts of
this view, Corral petitioned for federal habeas relief under
28 U.S.C. § 2254, which the district court denied. Because the
last state court to adjudicate the merits of Corral’s ineffective-
ness claim considered his claim in light of the relevant circum-
stances and reasonably concluded that his counsel made a
sound strategic decision not to present the appearance evi-
dence, we affirm under the doubly deferential standard that
governs our review.
I
A
In the afternoon on February 5, 2014, shots were fired in
the parking lot of an apartment complex in Waukesha, Wis-
consin. John Brautigam, Damian Jimenez, and two children
were parked in a van when a man approached and shot at
Brautigam through his open window. Brautigam ducked, the
shooter fired again, and Jimenez sped them away.
At trial, Brautigam and Jimenez both identified Corral as
the shooter. Brautigam testified that he saw Corral in the
parking lot a few minutes before the shooting; Brautigam then
looked down at his phone, and upon looking back up, he saw
Corral pointing a gun at him from five to ten feet away.
Brautigam had known Corral for fifteen years; they were
friends, and both were members of the Latin Kings gang.
Brautigam saw Corral regularly before the shooting incident.
He noted that Corral was wearing a hat that he had seen him
wear “plenty of times” before. Jimenez testified that he saw
two men nearby before the shooting; one ran behind another
No. 20-1665 3
vehicle, and the second, whom Jimenez recognized as Corral,
walked toward his van. Jimenez did not know Corral well, but
he said, “What’s up, Alonso?” before Corral pulled out a gun
and started shooting.
Corral’s counsel argued that Jimenez and Brautigam’s
identifications—which were the only evidence tying Corral to
the crime—were unreliable for several reasons. First, he insin-
uated that both men were drug addicts trying to buy heroin
at the time of the shooting. Second, both men had made in-
consistent statements about the shooting. Brautigam initially
told police that he had not seen the shooter; he changed his
story only after a detective said that Jimenez had already
identified Corral. Then, a few months before trial, Brautigam
told Corral’s private investigator that he was not “100% sure”
that Corral was the shooter. Meanwhile, Jimenez initially told
the police that the shooting happened “really fast,” and he
could not remember all of it. Third, both men’s views of the
shooter’s face were partially obscured by the shooter’s hat and
hoodie. Finally, although Corral does not have a right arm,
neither man said that the shooter was missing his right arm.
(Brautigam swore that the shooter used his left hand, but he
said he was sure of this only because he knew Corral had no
right arm.)
Corral’s counsel further argued that the real shooter was a
juvenile named Kenny. Kenny and Corral were together at the
apartment complex during the shooting, and both were wear-
ing the same color clothing and the same hat. Five days after
the shooting during a police interview, Kenny alternated be-
tween implicating himself and Corral. At one point, Kenny
admitted that he shot at Brautigam because Brautigam had
recently burglarized local homes and he “wanted to kill
4 No. 20-1665
[Brautigam] to protect kids.” He explained that when Jimenez
parked the van, he ran outside with a gun, which Corral did
not know he had, and Corral followed him. He added that if
Corral took responsibility for the shooting, he was “taking the
blame for me.” But after the interviewing detective expressed
skepticism, Kenny changed his story and identified Corral as
the real shooter. Kenny said Corral took the gun from him be-
fore they went outside to confront Brautigam. Kenny later
asked the detective to erase that statement because he did not
want “Corral to see that he had ratted him out.”
Kenny did not appear before the jury at trial; he invoked
his Fifth Amendment privilege outside the jury’s presence
pursuant to Wisconsin law. See WIS. STAT. § 905.13(2). During
deliberations, the jury asked the court, “Do we know the
height, weight[,] and race of [Kenny]?” Because the parties
had not submitted any evidence of Kenny’s appearance into
the trial record, the court answered (after discussion with and
upon agreement of the parties) that “the jury is required to
rely on their collective recollections” regarding Kenny’s ap-
pearance.
Ultimately, the jury accepted that Corral was the shooter
and convicted him on all counts: one count of attempted hom-
icide; three counts of recklessly endangering the safety of oth-
ers; one count of recklessly using a firearm; and one count of
bail jumping, since Corral was under state supervision at the
time of the shooting. The court sentenced Corral to 30 years’
imprisonment, followed by 20 years of supervised release.
B
Corral moved for state post-conviction relief arguing, as
relevant here, that his trial counsel was ineffective because he
No. 20-1665 5
failed to present evidence of Corral and Kenny’s likeness. He
contended their likeness was evident from booking photos
and police reports, which reflect their similar heights,
weights, and races. The police reports had been produced in
discovery; the photos were not.
At a post-conviction hearing, Corral’s trial counsel testi-
fied that he did not present evidence of Kenny’s appearance
because, after seeing them both, he thought that Kenny did
not look like Corral, who was ten years older than Kenny. He
watched a video of Kenny’s interrogation and saw no “strik-
ing resemblance.” This opinion was reaffirmed after he saw
Kenny outside the jury’s presence during the trial. Counsel
also reviewed all discovery in Corral’s case, including the po-
lice reports. He did not recall whether those reports specified
that Kenny and Corral had the same height or weight, but he
accepted they had “a similar physical build.” Counsel also
knew that the police reports stated that the two were the same
race, but from his own observation, he concluded otherwise.
Counsel explained at the hearing why he did not seek dis-
covery of Kenny and Corral’s booking photos to support the
mistaken-identity defense: “If I had introduced the photo and
it’s a White guy versus a Mexican guy and there is a huge age
difference and the jury rejects it, then I have got a problem.”
When presented with the photos at the hearing, counsel ad-
mitted that there was a “striking similarity between the two”
and that there was “no question” that he would have intro-
duced the photos had he seen them before trial. But, he said,
because he had watched the interrogation video which
showed their different appearances, he saw no reason to seek
out the booking photos.
6 No. 20-1665
Corral’s state-court appeals were unsuccessful. After the
state post-conviction trial court held that Corral’s counsel’s
performance was not deficient, the Wisconsin Court of Ap-
peals agreed. It ruled that Corral’s counsel’s testimony
“makes clear that the failure to present evidence of Kenny’s
physical appearance was the product of a strategic decision
based upon [counsel’s] personal observations.” It added that
it “will not second-guess a trial attorney’s ‘considered selec-
tion of trial tactics or the exercise of a professional judgment
in the face of alternatives that have been weighed by trial
counsel.’” See State v. Elm, 549 N.W.2d 471, 476 (Wis. Ct. App.
1996) (quoting State v. Felton, 329 N.W.2d 161, 169 (Wis. 1983)).
The court concluded that because Corral failed to show that
counsel’s tactics were unreasonable, his claim of ineffective-
ness failed. The Wisconsin Supreme Court denied review, and
Corral did not seek certiorari in the Supreme Court of the
United States. Instead, he petitioned for federal habeas relief
under 28 U.S.C. § 2254, which the district court denied.
II
A
On federal habeas appeal, Corral repeats the argument he
presented to the Wisconsin Court of Appeals: that he received
ineffective assistance of counsel because his trial counsel
should have introduced evidence of his and Kenny’s similar
appearance. To prevail on that claim in state court, Corral had
to demonstrate his counsel provided ineffective assistance un-
der Strickland v. Washington, 466 U.S. 668 (1984). Strickland re-
quires a showing of both (1) deficient performance and
(2) prejudice resulting from it. Id. at 687. Strickland’s first
No. 20-1665 7
prong (deficient performance) 2 is satisfied if “counsel’s repre-
sentation fell below an objective standard of reasonableness,”
and the second prong (prejudice) is satisfied if “there is a rea-
sonable probability that, but for counsel’s unprofessional er-
rors, the result of the proceeding would have been different.”
Id. at 688, 694. Applied here, under the two-prong Strickland
standard, Corral had to establish that (1) his counsel’s deci-
sion not to introduce appearance evidence was objectively un-
reasonable, and (2) but for his counsel’s unreasonable error,
there is a reasonable probability that the result of his trial
would have been different. See also Harrington v. Richter, 562
U.S. 86, 112 (2011) (“The likelihood of a different result must
be substantial, not just conceivable.”). Judicial scrutiny of
counsel’s performance under Strickland is “highly deferen-
tial” because “[i]t is all too tempting for a defendant to sec-
ond-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s
defense after it has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable.”
Strickland, 466 U.S. at 689.
We review de novo the district court’s denial of Corral’s
petition for a writ of habeas corpus based on ineffective assis-
tance of counsel, but the inquiry is narrow. See Schmidt v. Fos-
ter, 911 F.3d 469, 476 (7th Cir. 2018) (en banc). Under the An-
titerrorism and Effective Death Penalty Act of 1996 (AEDPA),
we review the last reasoned state-court decision to address
the petitioner’s claim on the merits, see id. at 477—here, the
Wisconsin Court of Appeals’ decision. As relevant here, we
cannot issue federal habeas relief on a claim the state court
2Our case law sometimes refers to this as the “deficiency” or “perfor-
mance” prong.
8 No. 20-1665
adjudicated on the merits unless that court’s decision was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Su-
preme Court of the United States.” Id. at 476 (quoting
§ 2254(d)(1)). A state-court decision is “contrary to” clearly es-
tablished federal law if the state court “applie[d] a rule differ-
ent from the governing law set forth” in Supreme Court deci-
sions or decided a case differently than the Supreme Court
has “on a set of materially indistinguishable facts.” Bell v.
Cone, 535 U.S. 685, 694 (2002) (citation omitted). And it in-
volves an “unreasonable application of” clearly established
federal law when the state court correctly identified the gov-
erning rule from Supreme Court precedent but “unreasona-
bly applie[d] it to the facts of the particular case.” Id. (citation
omitted). To satisfy the high “unreasonable application of”
bar, “a habeas petitioner is required to ‘show that the state
court’s ruling … was so lacking in justification that there was
an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.’” Woods
v. Donald, 575 U.S. 312, 316 (2015) (quoting Richter, 562 U.S. at
103). “This standard is … difficult to meet,” meaning a federal
court may grant habeas relief “solely in those relatively un-
common cases in which state courts veer well outside the
channels of reasonable decision-making about federal consti-
tutional claims.” Schmidt, 911 F.3d at 477 (internal quotation
marks and citations omitted). Thus, in answering whether the
Wisconsin Court of Appeals violated clearly established fed-
eral law when it rejected Corral’s claim that his counsel per-
formed ineffectively, “we owe deference to both [Corral’s]
counsel and the state court.” See Dunn v. Reeves, 141 S. Ct.
2405, 2410 (2021) (per curiam) (emphasis in original) (“This
analysis is ‘doubly deferential’ when, as here, a state court has
No. 20-1665 9
decided that counsel performed adequately.”) (citation omit-
ted).
The parties do not dispute that AEDPA deference applies
to our review of Strickland’s deficient performance prong
since both agree that the Wisconsin Court of Appeals adjudi-
cated that prong in denying Corral’s ineffectiveness claim.
Corral nonetheless argues that he can clear AEDPA’s restric-
tive provisions on this prong. But, for the reasons that follow,
we hold that Corral has failed to show that the Wisconsin
Court of Appeals’ determination that Corral’s counsel per-
formed adequately was “contrary to” or “an unreasonable ap-
plication of” clearly established federal law. Given that Corral
is entitled to habeas relief only if he satisfies both of Strick-
land’s prongs, we need not analyze whether Corral was prej-
udiced by the lack of evidence his counsel presented regard-
ing Kenny’s appearance. See Thompson v. Vanihel, 998 F.3d 762,
767 (7th Cir. 2021); Dunn v. Jess, 981 F.3d 582, 591 (7th Cir.
2020) (“Failing to prove either [prong] defeats a petitioner’s
claim.”) (quoting Winfield v. Dorethy, 956 F.3d 442, 452 (7th Cir.
2020)). 3
B
Corral argues he is entitled to federal habeas relief under
AEDPA because the Wisconsin Court of Appeals’ decision
was “contrary to” clearly established federal law, specifically
Strickland’s standard for evaluating deficient performance.
See Dunn, 981 F.3d at 591 (explaining the federal law set forth
3 Because we do not reach the prejudice prong, we likewise need not re-
solve the parties’ debate about whether the Wisconsin Court of Appeals
decided the prejudice prong and whether AEDPA deference would apply
to our review of that prong.
10 No. 20-1665
by the Supreme Court in Strickland is clearly established). To
support this argument, Corral contends that when analyzing
whether his counsel’s representation fell below an objective
standard of reasonableness, the Wisconsin Court of Appeals
did not evaluate his counsel’s performance “in light of all the
circumstances,” as required by Strickland. See Kimmelman v.
Morrison, 477 U.S. 365, 384 (1986) (showing the Supreme
Court has made clear that “[t]he reasonableness of counsel’s
performance is to be evaluated from counsel’s perspective at
the time of the alleged error and in light of all the circum-
stances”) (emphasis added) (citing Strickland, 466 U.S. at 689).
He claims that the state court’s analysis ignored certain facts
that were relevant to the reasonableness of his counsel’s per-
formance, like the fact that counsel chose not to introduce, de-
spite its availability, favorable evidence of Kenny and Corral’s
similar appearance—namely, the police reports and booking
photos—since the state court did not specifically refer to that
evidence in its decision.
We disagree. The state court’s decision reflects that the
court was aware of, and considered, the contested evidence.
The court accurately summarized Corral’s position about
counsel’s deficient performance—that “counsel failed to pre-
sent evidence regarding the similarity in physical appearance
between himself and Kenny.” To be sure, in his briefing be-
fore that court, Corral made clear his position that his coun-
sel’s deficiency resulted from his failure to introduce the
available police report and booking photo evidence. We have
no reason to doubt that the state court read the parties’ briefs.
Cf. United States v. Dote, 328 F.3d 919, 924 n.3 (7th Cir. 2003)
(“[W]e … presume the district court read the briefs submit-
ted.”) (quoting Ross Bros. Const. Co. v. Int’l Steel Servs., Inc., 283
F.3d 867, 872 (7th Cir. 2002)). We are therefore confident from
No. 20-1665 11
context that the state court based its analysis of counsel’s per-
formance on the very circumstances Corral argued were rele-
vant to his claim. Corral does not cite, nor have we found, a
Supreme Court decision requiring that courts reference each
exhibit or piece of evidence a petitioner thinks counsel should
have introduced at trial (in this case, the police reports and
booking photos) to comply with Strickland’s mandate that
courts consider counsel’s performance in light of all the cir-
cumstances. On the other hand, the Supreme Court has gen-
erally cautioned that “federal courts have no authority to im-
pose mandatory opinion-writing standards on state courts”
and must read state court opinions with the understanding
that “[t]he caseloads shouldered by many state appellate
courts are very heavy.” Johnson v. Williams, 568 U.S. 289, 300
(2013) (citations omitted).
Corral points out that the Wisconsin Court of Appeals did
not cite Strickland or otherwise summarize that the Supreme
Court’s test for deficient performance requires consideration
of the totality of circumstances. Again, we are not convinced
that this shows that the state court’s decision was contrary to
Strickland. A state court decision need not cite relevant Su-
preme Court precedent to avoid being found contrary to
clearly established federal law; Ҥ 2254(d) will bar federal re-
lief even if [the] state court does not cite, or even know about,
controlling Supreme Court precedents so long as neither the
reasoning nor the result of the state-court decision contradicts
them.” Riley v. Calloway, 882 F.3d 738, 744 (7th Cir. 2018) (in-
ternal quotation marks omitted) (quoting Early v. Packer, 537
U.S. 3, 8 (2002)). Here, we see nothing wrong with the Wis-
consin Court of Appeals citing a state case rather than federal
decisions when the state case articulates a rule that mirrors
the general federal standard for evaluating ineffective
12 No. 20-1665
assistance claims. Compare State v. Elm, 549 N.W.2d 471, 476
(Wis. Ct. App. 1996) (“A strategic trial decision rationally
based on the facts and the law will not support a claim of in-
effective assistance of counsel.”), with Strickland, 466 U.S. at
690 (“[S]trategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually un-
challengeable.”). And even if we accept Corral’s contention
that the state case does not discuss a totality of circumstances
test, as we explained above, the Wisconsin Court of Appeals
evaluated Corral’s counsel’s performance in light of the rele-
vant circumstances, as federal law requires. The Wisconsin
Court of Appeals did not apply a rule that contradicts Strick-
land so its evaluation of counsel’s performance under Strick-
land’s first prong was not contrary to clearly established fed-
eral law.
Nor was the state court’s decision “an unreasonable appli-
cation of” clearly established federal law. The Wisconsin
Court of Appeals reasonably applied the principles of Strick-
land to reject Corral’s claim that his counsel was deficient for
failing to introduce evidence of his and Kenny’s similar ap-
pearance. “‘To avoid the inevitable temptation to evaluate a
lawyer’s performance through the distorting lens of hind-
sight, Strickland establishes a deferential presumption that
strategic judgments made by defense counsel are reasona-
ble.’” Dunn, 981 F.3d at 591 (quoting Mosley v. Atchison, 689
F.3d 838, 848 (7th Cir. 2012)). The state court recognized this
presumption and, in line with Strickland, permissibly deferred
to counsel’s strategic decision not to introduce the appearance
evidence that he determined, after reviewing the video of
Kenny’s interrogation, might harm Corral’s case. When coun-
sel reasonably decides that evidence “might on balance harm
rather than help the defendant,” counsel’s strategic decision
No. 20-1665 13
not to offer the evidence is beyond constitutional reproach.
Toliver v. McCaughtry, 539 F.3d 766, 775 (7th Cir. 2008). Corral
does not allege counsel’s assessment of the interrogation
video was unreasonable. Nor does he provide any basis to
question the reasonableness of counsel’s assessment. Indeed,
he has not introduced the video into this court’s record. Recall
also that unlike Corral, Kenny was a juvenile and white, and
he was not missing an arm. We therefore see no basis to disa-
gree with the state court that counsel’s strategic decision not
to offer evidence of Kenny’s appearance was sound. See
Dunn, 141 S. Ct. at 2412 (state court entitled to reject peti-
tioner’s ineffectiveness claim “if trial counsel had any ‘possi-
ble reaso[n] … for proceeding as they did’”) (quoting Cullen
v. Pinholster, 563 U.S. 170, 196 (2011)).
Corral offers three replies, but none is persuasive. First, he
observes that at the post-conviction hearing, counsel admitted
that Corral and Kenny’s booking photos were “strikingly sim-
ilar.” But “[s]o long as an attorney articulates a strategic rea-
son for a decision that was sound at the time it was made, the
decision generally cannot support a claim of ineffective assis-
tance of counsel.” Yu Tian Li v. United States, 648 F.3d 524, 528
(7th Cir. 2011). This is true even when, in hindsight, another
decision may have led to a better result. See Atkins v. Zenk,
667 F.3d 939, 945 (7th Cir. 2012) (when counsel makes a rea-
sonable strategic decision, it is “not subject to Monday-morn-
ing quarterbacking”). So, although counsel later expressed
some post-trial regret for not presenting Kenny and Corral’s
booking photos into evidence, that does not change the
soundness of counsel’s earlier decision to omit appearance ev-
idence in light of his pre-trial assessment of Kenny’s interro-
gation video.
14 No. 20-1665
Corral next appears to suggest his counsel should have at
least requested and seen the booking photos before deciding
not to offer them into evidence. But “strategic choices made
after less than complete investigation are reasonable precisely
to the extent that reasonable professional judgments support
the limitations on investigation.” Strickland, 466 U.S. at 690–
91; see also Dunn, 141 S. Ct. at 2410 (“Defense lawyers have
limited time and resources, and so must choose from among
countless strategic options.”) (internal quotation marks and
citation omitted). Because counsel determined, based on his
review of the interrogation video, that Kenny did not look like
Corral—again, an assessment that Corral does not chal-
lenge—it was reasonable for him not to seek more appearance
evidence. The reasonableness of counsel’s decision is under-
scored by the fact that there is no evidence that, before or dur-
ing trial, Corral pressed counsel to seek or introduce evidence
of Kenny’s appearance. Indeed during oral argument we
asked whether Corral ever vocalized disagreement with his
trial counsel’s approach. Corral’s federal appellate counsel
denied any such disagreement, stating: “To the direct ques-
tion you asked, do I have any evidence of a disagreement be-
tween Corral and his counsel, no I don’t.”
Finally, Corral contends that even if counsel reasonably
determined that Kenny and Corral did not look alike, counsel
still could have presented the non-visual evidence of their
similarities: the police reports listing their height, weight, and
race. But if counsel had offered this evidence, he would have
invited the State to introduce, as counterevidence, the very
visual evidence that he reasonably feared would undermine
his defense theory—Kenny’s interrogation video. It was thus
not unreasonable for counsel to decline to pursue a tactic that
could have undermined Corral’s chosen defense.
No. 20-1665 15
Accordingly, Corral has failed to demonstrate that the state
court unreasonably applied federal law in determining that
his counsel made a sound strategic decision not to present the
contested appearance evidence. We defer to the state court’s
reasonable decision that the circumstances of Corral’s case do
not merit relief. See Dunn, 141 S. Ct. at 2407 (“Federal habeas
courts must defer to reasonable state-court decisions.”) (citing
§ 2254(d)).
* * *
The Wisconsin Court of Appeals did not violate clearly es-
tablished federal law when evaluating the effectiveness of
Corral’s counsel’s performance under Strickland’s first prong.
The district court’s decision denying Corral’s habeas petition
is AFFIRMED.