George Brown v. Cheryl Eplett

In the
United States Court of Appeals
For the Seventh Circuit
No. 21-1515
GEORGE L. BROWN,
Petitioner-Appellant,
v.
CHERYL EPLETT,
Respondent-Appellee.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:19-cv-01010-bbc — Barbara B. Crabb, Judge.
ARGUED NOVEMBER 10, 2021 — DECIDED SEPTEMBER 7, 2022
Before MANION, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. A Wisconsin jury convicted George
Brown of first-degree reckless injury by use of a dangerous
weapon after he stabbed his cousin K.M.1 in the head during a
1
Consistent with Wisconsin law, the parties have identified the victim
(continued...)
2 No. 21-1515
drunken brawl at Brown’s home. See Wis. Stat. § 940.23(1)(a).
Brown now seeks relief in habeas corpus, arguing that he was
deprived of due process when the trial court erroneously
refused to instruct the jury on the castle doctrine as part of his
self-defense theory. We affirm the district court’s decision
denying his habeas petition.
I.
Brown had agreed to host a barbeque at his Madison,
Wisconsin home in July 2014 to celebrate the new job for which
K.M.’s wife had been hired. K.M. and Brown both became
inebriated as they drank throughout the afternoon and
evening. As the hour grew late, Brown and K.M. got into an
argument that escalated into a physical altercation in the
garage. Friends tried to break up the fight, urging K.M. to
leave. K.M. struck a friend in the mouth in the process, causing
that individual to wash his hands of the matter and go home.
K.M.’s wife Rebecca managed to escort K.M. to his car, which
was parked on the cul-de-sac in front of Brown’s house. But the
fight continued: K.M. doffed his undershirt and threw his
shoes at Brown and Brown responded in kind, removing his
own shirt and throwing pieces of scrap trim lumber at K.M.2
According to K.M.’s wife Rebecca, K.M. was standing in the
street when Brown said “I’ve got something for you” (R. 5-5 at
1
(...continued)
solely by his initials. See Wis. Stat. § 809.86(4). We shall do the same.
2
Brown had the scrap lumber on hand for use in a smoker that he used to
ward off mosquitoes. He threw some 21 pieces of the wood at K.M.
No. 21-1515 3
2), went into his house, came back outside, at which point
Rebecca saw a knife in his hand, and walked down the
driveway toward K.M. By her account, K.M. backed away and
picked up two pieces of wood that Brown had thrown at him.
The men continued to argue. Brown took a swing at K.M. with
the knife, K.M. swung back with the wood, and ultimately
Rebecca heard a crack and saw her husband spin around and
drop to the ground with the knife buried in his head.
Brown gave a different account of events when he took the
witness stand at trial. He said that while he was standing at the
top of his driveway, K.M. picked up the two pieces of wood
(which Brown described as “sticks”) and came up the driveway
toward him. Fearing what K.M. might do, he picked up a knife
from the grill outside of his garage. K.M. approached and
raised his hands as if he were about to strike Brown. K.M.
stood 6 feet tall, weighed 220 pounds, and at age 39 was nearly
20 years younger than Brown. Brown went into “combat
mode” (R. 5-13 at 73) and swung his knife at K.M. He did not
realize he had actually stabbed K.M. until K.M. walked back
down the driveway to his car and collapsed in the street.
In the moments immediately after he stabbed K.M., Brown
did not call 911 to summon aid for K.M., did not voice concern
for him, and did not express remorse for what had occurred.
Instead, according to multiple witnesses, he made statements
to the effect of “that will teach him” (R. 5-11 at 67), “I should
have killed your ass” (R. 5-10 at 94, 98), “He ain’t dead yet but
I’ll kill him” (R. 5-11 at 49), and, to the victim’s wife, Rebecca,
“I got one for you too, bitch” (R. 5-11 at 61; see also R. 5-11 at 31;
R. 5-13 at 33). Indeed, according to Rebecca, after making the
latter remark, Brown walked down the driveway toward her
4 No. 21-1515
with what looked like another knife in his hand. Brown would
later acknowledge having made such remarks, attributing
them to the heat of the moment, when he was still feeling the
effects of adrenaline from the confrontation. But in the ensuing
days, in multiple recorded telephone calls from jail to Jill
Phillips, whom he was then dating, Brown made a series of
statements seemingly attributing the stabbing to anger and
exasperation with K.M. as opposed to fear for his own safety.
For example, he said that on the night of the barbeque, K.M.
had “pissed me off” and “ask[ed] for it,” despite “know[ing]
better.” R. 5-13 at 113–15. “Why push my buttons[?]” he asked
Phillips. “Why push them when you know I’m going to go.
Why take me there when you already know I’m going to go.
Shit.” R. 5-13 at 115. He also acknowledged to Phillips that he
had “fucked up” and “put myself in this position.” R. 5-13 at
113, 115.
The knife wounds on K.M.’s body indicated that he was
struck a total of three times: once in the upper left shoulder,
where he had a wound 3.5 centimeters long, once on the back
of his left arm, where he had a 2.5-centimeter wound, and once
in the head, in front of his left ear. Brown stabbed K.M. in the
head forcefully enough that the knife’s 8-inch blade penetrated
the skull at his left temple, passed through the brain, and
lodged in the skull on the right rear side of his head. K.M.
survived the stabbing but was left with numerous cognitive
and physical impairments and will require care for the remain-
der of his life.
Brown was charged with both first-degree attempted
homicide and first-degree reckless injury. He pleaded not
No. 21-1515 5
guilty to the charges and the State’s case against him was tried
before a jury over the course of four days.
Brown’s theory of the case was that he stabbed K.M. in self-
defense. The standard Wisconsin jury instruction on self-
defense advises the jury that a defendant who invokes the
privilege of self-defense must have reasonably believed that
the amount of force he used was necessary to terminate an
actual or imminent unlawful interference with his person.3 And
3
Thus, the instruction given to the jury in this case provided, in relevant
part, as follows:
The law of self-defense allows a defendant to threaten or
intentionally use force against another only if the defen-
dant believed there was an actual or imminent unlawful
interference with the defendant’s person and the defen-
dant believed that the amount of force the defendant used
or threatened to use was necessary to prevent or terminate
the interference and that the defendant’s beliefs were
reasonable.
The defendant may intentionally use force which is
intended or likely to cause death or great bodily harm only
if the defendant reasonably believed that the force used
was necessary to prevent imminent death or great bodily
harm to himself.
A belief may be reasonable even though mistaken. In
determining whether the defendant’s beliefs were reason-
able, the standard is what a person of ordinary intelligence
and prudence would have believed in the defendant’s
position under the circumstances that existed at the time of
the alleged offense.
The reasonableness of the defendant’s beliefs must be
determined from the standpoint of the defendant at the
time of the defendant’s acts and not from the viewpoint of
(continued...)
6 No. 21-1515
although the jury is further advised that an individual protect-
ing himself from another has no duty to retreat, the instruction
nonetheless allows the jury to consider the availability and
feasibility of retreat when evaluating the reasonableness of the
defendant’s use of force.4 But Brown asked the court to modify
the instruction to reflect the castle doctrine, which grants an
individual greater latitude in using force to defend himself on
the premises of his home and gives a defendant claiming self-
defense in that setting a substantial leg up in the jury’s assess-
ment of the defense. See State v. Johnson, 961 N.W.2d 18, 26
(Wis. 2021). Here, a self-defense instruction reflecting the castle
doctrine would have directed the jury to presume that the
defendant reasonably believed his use of force was necessary
to protect himself from imminent death or great bodily harm
3
(...continued)
the jury now.
R. 5-14 at 21–22.
4
The jury was specifically advised as follows on the matter of retreat:
There is no duty to retreat. However, in determining
whether the defendant reasonably believed the amount of
force used was necessary to prevent or terminate the
interference, you may consider whether the defendant had
the opportunity to retreat with safety, whether such retreat
was feasible, and whether the defendant knew of the
opportunity to retreat.
R. 5-14 at 22.
No. 21-1515 7
and would have expressly barred the jury from considering
whether the defendant had an opportunity to retreat.5
For the castle doctrine to apply, the defendant must employ
force against someone who is in the process of unlawfully and
forcibly entering—or has so entered—the defendant’s dwell-
ing, which the legislature has defined to include the home’s
driveway. Wis. Stat. § 938.48(1m); State v. Chew, 856 N.W.2d
541, 543–44 (Wis. Ct. App. 2014). Consequently, it was material
whether the final physical altercation between Brown and K.M.
that culminated in the stabbing took place in the street or on
Brown’s driveway. Cf. id. at 545–46 (castle doctrine did not
apply where intruders who attacked defendant had already
left his apartment and were fleeing across the building’s
common parking lot, which did not constitute part of his
dwelling, by the time he employed deadly force).
As our summary thus far indicates, there was a conflict in
the testimony as to precisely where K.M. was located during
5
The castle-doctrine version of the instruction would have advised the
jury:
There is no duty to retreat. You must not consider evi-
dence relating to whether the defendant had an opportu-
nity to flee or retreat in deciding whether the state has
proved that the defendant did not act lawfully in self-
defense.
Wis. Crim. Jury Instr. 810 n.1; R. 5-5 at 5. Additionally, consistent with
statutory provision on the castle doctrine, the jury would have been
instructed to “presume that the [defendant] reasonably believed that the
force was necessary to prevent imminent death or great bodily harm to
himself … .” Wis. Stat. § 939.48(1m)(ar).
8 No. 21-1515
the final altercation when Brown struck him with the knife:
Brown testified that K.M. had charged up the driveway to
where Brown was standing next to the grill at the top of the
driveway, whereas K.M.’s wife Rebecca testified that Brown
had come down the driveway and confronted K.M. in the
street. Apart from these two accounts, there was additional
witness testimony addressing this point.
Kelan Phillips (“Kelan”), a 13-year-old boy who lived across
the cul-de-sac from Brown’s home, told police officers in the
immediate aftermath of the incident that he witnessed the
altercation from his upstairs bedroom window. According to
the officers, Kelan said that he saw K.M. standing in the street,
heard Brown yelling at K.M., saw Brown walk toward K.M.
and, when Brown reached the street, saw Brown strike K.M. in
the head. K.M. had something in his hand and raised his hand
as if to strike Brown, but he collapsed before he was able to do
so. When he was called to testify at trial, Kelan (then age 14) for
the most part professed not to recall what he saw on the night
of the incident or what he had told the police. The trial court
permitted the officers who had spoken with Kelan to recount
what Kelan had told them. Kelan’s mother Jill was Brown’s
girlfriend at the time of the incident. At one point in his
testimony, Kelan interjected without prompting that “George
is a nice dude, he is nice, he just made a wrong mistake that
day.” R. 5-12 at 107.
Cynthia Harms, another neighbor who lived across the cul-
de-sac from Brown, also testified. On the night of the alterca-
tion, she had been asleep but was awakened by the sound of
yelling. When she looked out her upstairs bedroom window,
she saw shadows and heard scuffling near the driveway,
No. 21-1515 9
where Brown’s red Ford Mustang was parked. (She could not
see who was involved in the scuffle.) She went downstairs
briefly to retrieve her phone and called the police. When she
returned to the window, she saw a man (presumably K.M.) at
the foot of the driveway and heard a woman (presumably
K.M.’s wife Rebecca) telling him to get into the car. K.M.
walked toward his car, which was parked at the curb immedi-
ately next to (and partially blocking) the mouth of the drive-
way, and then fell down in front of the vehicle.6 Harms was
asked directly at trial whether she had seen an altercation in
the driveway, and she said that she had not: she said she had
not seen anything that took place between the scuffle she
initially heard and subsequently observing K.M. at the bottom
of the driveway. She also testified that at no time during the
period she was observing events across the street had she seen
Brown, whom she knew. She did tell a police officer that at
some point during the incident she heard a voice that she
recognized as Brown’s say, “I’ve got one for you too, bitch.” R.
5-13 at 33.
The trial court denied Brown’s request for an instruction on
the castle doctrine, reasoning that K.M. was an invitee and thus
was not in any way attempting to forcibly enter any part of
Brown’s dwelling.7 Instead, the court gave the standard self-
defense instruction. Among other points, the prosecutor
6
Harms told the 911 dispatcher that K.M. fell in the grass next to the
driveway.
7
There was testimony, however, that prior to the stabbing, Brown had
repeatedly told K.M. to leave.
10 No. 21-1515
argued in closing that even if Brown’s version of events were
believed, he had a feasible way of avoiding the near-fatal
encounter with K.M. by retreating into his garage or house.
The jury acquitted Brown of the attempted homicide charge
but convicted him on the reckless-injury charge. The trial court
sentenced him to a period of 12 years in prison followed by 10
years of extended supervision. The court denied Brown’s post-
conviction motion asserting that it was error not to instruct the
jury on the castle doctrine. The court reasoned in part, “In the
instant action, the Castle Doctrine does not apply because
[K.M.] was initially an invitee to a family barbeque. Addition-
ally, there is not any credible evidence that [K.M.] was ‘unlaw-
fully or forcibly entering’ any portion of Brown’s ‘dwelling’ at
the time of the stabbing.” R. 5-2 at 53.
Brown appealed, arguing as relevant here that the refusal
to instruct the jury on the castle doctrine was error. The State
conceded that the instruction should have been given, as there
was “some evidence” to support it, given Brown’s testimony
that K.M. had confronted him on the driveway of his home.8
But the State argued that the error was harmless.
The Wisconsin Court of Appeals affirmed. It accepted the
State’s concession that the castle-doctrine instruction should
have been given, but it agreed with the State that the error was
8
“Wisconsin law establishes a low bar that the accused must surmount to
be entitled to a jury instruction on the privilege of self-defense. The accused
need produce only some evidence in support of the privilege of self-
defense. Evidence satisfies the some evidence quantum of evidence even if
it is weak, insufficient, inconsistent, or of doubtful credibility or slight.”
State v. Stietz, 895 N.W.2d 796, 802 (Wis. 2017) (cleaned up).
No. 21-1515 11
harmless. After canvassing the testimony, the appellate court
found that the jury would have convicted Brown even if it had
been instructed on the castle doctrine. In particular, the court
found that no reasonable jury would have believed Brown’s
version of events as to where the stabbing took place. R. 5-5.
The Wisconsin Supreme Court denied review. R. 5-8.
Brown then petitioned for a writ of habeas corpus in the
district court. Judge Crabb denied the petition. She found in
the first instance that Brown had fairly presented his due
process claim to the state appellate court. But she went on to
reason that Brown’s claim of instructional error did not rise to
the level of a constitutional violation, in that the error did not
implicate the elements of the charged offense, but rather bore
only on Brown’s defense. Even if a due process violation had
occurred, she added, the error was harmless. Brown v. Jess, 521
F. Supp. 3d 792 (W.D. Wis. 2021).
II.
In this court, Brown renews his argument that the trial
judge’s refusal to modify the self-defense instruction to
incorporate the material aspects of the castle doctrine rose to
the level of a due process violation. As we discuss in greater
detail below, Brown contends that the error in instructing the
jury as to self-defense effectively modified a key element of the
reckless-injury charge, thus violating his due process right that
the jury be properly instructed as to each element of the
charged offense. We can assume that Brown is correct in this
regard. Nonetheless, we conclude that Brown is not entitled to
a writ of habeas corpus because any such error was harmless.
12 No. 21-1515
The Antiterrorism and Effective Death Penalty Act autho-
rizes relief under 28 U.S.C. § 2254 only when the state court’s
decision on the merits of the petitioner’s claim is “contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” § 2254(d)(1). A state court decision is “contrary
to” Supreme Court precedent if it either did not apply the
proper legal rule or if the decision did apply the correct rule
but reached the opposite result from the Supreme Court on
materially indistinguishable facts. E.g., Warren v. Baenen, 712
F.3d 1090, 1096 (7th Cir. 2013). A state court decision amounts
to an unreasonable application of Supreme Court precedent
when it applies that precedent in a manner that is “objectively
unreasonable, not merely wrong.” Woods v. Donald, 575 U.S.
312, 316, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting
White v. Woodall, 572 U.S. 415, 419, 134 S. Ct. 1697, 1702 (2014));
Renico v. Lett, 559 U.S. 766, 773, 130 S. Ct. 1855, 1862 (2010). By
design, this is a difficult standard to meet. Donald, 575 U.S. at
316, 135 S. Ct. at 1376. A state court’s application of Supreme
Court precedent is not objectively unreasonable simply
because we might disagree with that application, but rather
only when no reasonable jurist could agree with it. Davis v.
Ayala, 576 U.S. 257, 269–70, 135 S. Ct. 2187, 2199 (2015); Donald,
575 U.S. at 316, 135 S. Ct. at 1376; Williams v. Taylor, 529 U.S.
362, 409–11, 120 S. Ct. 1495, 1521–22 (2000).
We must first consider whether Brown fairly presented his
due process claim to the Wisconsin appellate court. Before
seeking relief in federal court, a habeas petitioner must first
give the State the opportunity to address and correct any
alleged violation of his federal rights, which means that he
No. 21-1515 13
must fairly present his federal claim through one complete
round of review in state court, “thereby alerting that court to
the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27,
29, 124 S. Ct. 1347, 1349 (2004); see also Duncan v. Walker, 533
U.S. 167, 178–79, 121 S. Ct. 2120, 2127–28 (2001); O’Sullivan v.
Boerckel, 526 U.S. 838, 844–45, 119 S. Ct. 1728, 1732–33 (1999);
Whatley v. Zatecky, 833 F.3d 762, 770–71 (7th Cir. 2016). The
following factors are relevant to the determination of whether
the petitioner has fairly presented his federal claim to the state
court: (1) whether the petitioner relied on federal cases that
engage in a constitutional analysis; (2) whether the petitioner
relied on state cases which apply a constitutional analysis to
similar facts; (3) whether the petitioner framed the claim in
terms so particular as to call to mind a specific constitutional
right; and (4) whether the petitioner alleged a pattern of facts
that is well within the mainstream of constitutional litigation.
Id. at 771. “All four factors need not be present to avoid default
[of the federal claim], and conversely, a single factor alone does
not automatically avoid default. We must consider the specific
circumstances of each case.” Id. (citations omitted).
The instructional error that occurred in this case was, in the
first instance, one of state law. Wisconsin has adopted certain
principles that govern a standard claim of self-defense, and
more recently it has also adopted the castle doctrine, which
modifies those principles in cases where an individual is in his
dwelling confronting an intruder. Errors of state law in and of
themselves are not redressable in habeas corpus, Estelle v.
McGuire, 502 U.S. 62, 67–68, 112 S. Ct. 475, 480 (1991); Perruquet
v. Briley, 390 F.3d 505, 511 (7th Cir. 2004), and this includes
state-law instructional errors in non-capital cases, Gilmore v.
14 No. 21-1515
Taylor, 508 U.S. 333, 342, 113 S. Ct. 2112, 2117–18 (1993); Estelle,
502 U.S. at 71–72, 112 S. Ct. at 481–82; Czech v. Melvin, 904 F.3d
570, 574 (7th Cir. 2018); Burris v. Smith, 819 F.3d 1037, 1042 (7th
Cir. 2016).9
However, “the Due Process Clause [of the Fourteenth
Amendment] protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime of which he is charged.” In re Winship,
397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970). Thus, instructions
that reduce or shift the State’s burden of proof or wholly omit
an essential element of the charged offense could give rise to a
due process violation. See Waddington v. Sarausad, 555 U.S. 179,
190–91, 129 S. Ct. 823, 831–32 (2009); Cupp v. Naughten, 414 U.S.
141, 146–48, 94 S. Ct. 396, 400–01 (1973); Sanders v. Cotton, 398
F.3d 572, 581–82 (7th Cir. 2005); Cole v. Young, 817 F.2d 412, 423
(7th Cir. 1987).
Brown was convicted of reckless injury. See Wis. Stat.
§ 940.23(1)(a). The offense of first-degree reckless injury
requires the State to prove that: (1) the defendant caused great
bodily harm to a human being; (2) by criminally reckless
conduct; and (3) under circumstances which show utter
disregard for human life. United States v. McDonald, 592 F.3d
9“All 50 States … recognize self-defense as a defense to criminal prosecu-
tion, … [but] the States have always diverged on how exactly to implement
this interest, so there is wide variety across the Nation in the types and
amounts of force that may be used, the necessity of retreat, the rights of
aggressors, the availability of the ‘castle doctrine,’ and so forth.” McDonald
v. City of Chicago, Ill., 561 U.S. 742, 888 n.32, 130 S. Ct. 3020, 3106 n.32 (2010)
(Stevens, J., dissenting) (citations omitted).
No. 21-1515 15
808, 811 (7th Cir. 2010) (citing State v. Jensen, 613 N.W.2d 170,
173 n.2 (Wis. 2000)); State v. Kloss, 925 N.W.2d 563, 567 (Wis. Ct.
App. 2019), review dismissed as improvidently granted, 939
N.W.2d 564 (Wis. 2020). Conduct is defined as “criminally
reckless” when “the actor creates an unreasonable and substan-
tial risk of death or great bodily harm to another human being
and the actor is aware of that risk.” Wis. Stat § 939.24(1).
Wisconsin’s self-defense privilege permits “[a] person … to
threaten or intentionally use force against another for the
purpose of preventing what the person reasonably believes to
be an unlawful interference with his person or her person by
such other person.” Wis. Stat. § 939.48(4)(1). But he may only
use such force (or threaten to use such force) as he reasonably
believes is necessary to prevent or end the interference with his
person. Id. “The actor may not intentionally use force which is
intended or likely to cause death or great bodily harm unless
the actor reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to himself or
herself.” Id.As a general matter, self-defense is regarded as an affirma-
tive defense in Wisconsin law, in that it supplies a defense to
the charged crime even where the State has otherwise suc-
ceeded in establishing each of the elements of that crime
beyond a reasonable doubt. See State v. Austin, 836 N.W.2d 833,
837 (Wis. Ct. App. 2013). With an intentional crime such as
murder, for an example, a jury might find that the defendant
meant to cause the death of another person but at the same
time find that he reasonably used lethal force against that
person in defense of his own life. See State v. Watkins, 647
16 No. 21-1515
N.W.2d 244, 253 (Wis. 2002); Wis. Crim. Jury Instr. 801 n.1
(2021) (“in cases involving the intentional causing of harm …
intent to cause harm and self-defense can exist at the same
time”). In this way, self-defense does not negate any element
of the charged offense but rather justifies or excuses the
defendant’s conduct as a legal matter. See Smith v. United States,
568 U.S. 106, 110, 133 S. Ct. 714, 719 (2013).
However, with respect to an offense like first-degree
reckless injury, which is premised on a mens rea of reckless-
ness, a successful assertion of self-defense does serve to negate
an element of the crime, rendering self-defense a negative
defense rather than an affirmative defense. Austin, 836 N.W.2d
at 837–38 & n.6. Because the “criminally reckless conduct”
element of reckless injury requires proof that the defendant has
created an “unreasonable and substantial risk of death or great
bodily harm to another person,” § 939.24(1) (emphasis ours),
proof that the defendant reasonably believed that the other
person posed a risk of death or great bodily harm to himself
and that the use of force was necessary to eliminate that risk
will necessarily preclude a finding that the defendant’s use of
force was unreasonable and criminally reckless. See id.; Wis.
Crim. Jury Instr. 801 n.1 (“A risk is not unreasonable if the
conduct undertaken is a reasonable exercise of the privilege of
self-defense.”).
Once a defendant establishes the existence of a statutory
affirmative defense (including self-defense), see n.8, supra,
Wisconsin law, independent of federal due process require-
ments, imposes on the State the burden of disproving the
defense beyond a reasonable doubt. Moes v. State, 284 N.W.2d
No. 21-1515 17
66, 69–71 (Wis. 1979); State v. Schleusner, 454 N.W.2d 51, 54
(Wis. Ct. App. 1990); see also State v. Kizer, 976 N.W.2d 356, 360
(Wis. 2022); State v. Stoehr, 396 N.W.2d 177, 188 (Wis. 1986). In
cases where the defense operates as a negative defense, as it
does here, the State of course retains that burden of proof. See
Austin, 836 N.W.2d at 837–38; see also State v. Pettit, 492 N.W.2d
633, 640 (Wis. Ct. App. 1992) (where defendant successfully
asserts negative defense, “the burden is upon the state to prove
beyond a reasonable doubt that defendant’s evidence did not
negate an element necessary to convict”). But because the
defense in such cases serves to negate one or more elements of
the charged crime, an error in describing the State’s burden of
proof with respect to a negative defense or in articulating the
elements of the defense may well implicate the defendant’s due
process rights. See State v. Schultz, 307 N.W.2d 151, 156 (Wis.
1981) (if asserted defense challenges an element of the charged
crime, “the state bears the burden of proving this element
beyond a reasonable doubt” and in the face of negative
defense, “the burden of persuasion cannot be placed upon the
defendant without violating his right to due process of law”);
State v. McGee, 698 N.W.2d 850, 856 (Wis. Ct. App. 2005) (“It
would be a violation of due process to place the burden of
persuasion on a defendant who would be asserting a negative
defense, that is, a defense that negates a fact that the State must
prove.”); Engle v. Isaac, 456 U.S. 107, 121–22, 102 S. Ct. 1558,
1568–69 (1982) (acknowledging that, to the extent self-defense
negates one or more elements of the charged offense, such that
State must disprove the defense as part of establishing defen-
dant’s guilt on those offense elements, jury instructions that
18 No. 21-1515
improperly assign burden of proving self-defense to the
defendant would present “a colorable constitutional claim”).
As we have noted, Brown’s theory is that the trial court’s
refusal to give a self-defense instruction incorporating the
castle doctrine improperly modified the criminally reckless
conduct element of the offense. Recall that the standard self-
defense instruction, which the trial court in this case adopted,
permits the jury, in assessing the reasonableness of the defen-
dant’s use of force, to consider whether he could have pro-
tected himself by retreating. By contrast, the castle doctrine
removes the possibility of retreat from the jury’s consideration.
The castle doctrine also grants the defendant the benefit of a
(rebuttable) presumption that he reasonably believed that his
use of force in defending himself was reasonable. And as we
have just explained, the jury’s assessment of self-defense will
inform its finding as to the second element of the reckless-
injury offense—whether the defendant engaged in criminally
reckless conduct. See Austin, 836 N.W.2d at 837–38. Brown thus
reasons that the failure to instruct the jury consistently with the
castle doctrine tainted not only the jury’s consideration of self-
defense but also its consideration of a key element of the
charged offense. We shall elaborate on this point in a moment;
first, we must address the question of fair presentment.
We agree with the district court that Brown fairly presented
this due process claim to the Wisconsin courts. Although his
principal brief to the Wisconsin Court of Appeals largely
argued that the jury instruction on self-defense was erroneous
as a matter of state law, the brief also noted that “[a] failure to
properly instruct the jury in such circumstances [when the
evidence supports the instruction] … violates the federal due
No. 21-1515 19
process right not to be convicted ‘except on proof beyond a
reasonable doubt of every fact necessary to constitute the
[charged] crime.’” R. 5-2 at 19. In support of that principle, the
brief not only quoted from the Supreme Court’s decision in
Winship but cited this court’s decision in Sanders v. Cotton,
supra, 398 F.3d at 582–83, which granted habeas relief in an
Indiana murder prosecution for a due process violation, based
on the trial court’s failure to instruct the jury that once the
defendant asserted that he had acted in sudden heat, the State
bore the burden of proving beyond a reasonable doubt that the
defendant did not kill the victim in sudden heat, which as a
matter of Indiana law distinguished voluntary manslaughter
from murder. It would therefore have been clear to the
Wisconsin court that, in Brown’s view, the instructional error
rose to the level of due process violation. It is true, as the State
points out, that Brown did not specifically explain how the
omission of the castle doctrine language from the self-defense
instruction effectively modified the “criminally reckless
conduct” element of the reckless-injury offense. But the brief
certainly did make the point that the self-defense instruction as
given improperly allowed the jury to consider the opportunity
to retreat in assessing the reasonableness of his actions, and
having expressly raised his due process right to have the jury
properly instructed on each element of the offense, the state
court would have been on notice that the flaw in the self-
defense instruction might have influenced the jury’s assess-
ment of the “criminally reckless conduct” element of the
offense. Brown did enough to alert the state court to the basis
for his constitutional claim.
20 No. 21-1515
We can also assume, without deciding, that the instruc-
tional error rose to the level of a due process violation. As the
State points out, the Supreme Court has drawn a distinction
between instructional errors regarding the elements of the
charged offense and errors that concern only an affirmative
defense, and it has been reticent to characterize the latter
category of errors as presenting a due process problem. See
Gilmore, 508 U.S. at 343, 113 S. Ct. at 2118 (Winship’s due
process guarantee does not apply to instructions that merely
present risk jury will not consider evidence bearing on affirma-
tive defense); Engle, 456 U.S. at 120–21, 102 S. Ct. at 1567–68
(State may assume burden of disproving affirmative defense
without also making disproof or absence of the defense an
element of the crime; and unless state law otherwise treats
absence of affirmative defense as an element of the charged
offense, error in instructing jury as to the defense may only
establish violation of state law rather than a violation of
Constitution); Patterson v. N.Y., 432 U.S. 197, 210, 97 S. Ct. 2319,
2327 (1977) (where affirmative defense does not negate any
element of charged crime, Due Process Clause does not compel
State to disprove its existence beyond reasonable doubt, and
jury instruction placing burden on defendant to establish
defense by preponderance of evidence does not pose constitu-
tional problem: “Proof of the non-existence of all affirmative
defenses has never been constitutionally required; and we
perceive no reason to fashion such a rule in this case and apply
it to the statutory defense at issue here.”). It also warrants
mention that the jury in this case was properly advised,
consistent with Wisconsin law, that the burden was on the
State to establish beyond a reasonable doubt not only the
No. 21-1515 21
elements of the charged reckless-injury offense, but also that
Brown did not act in self-defense when he injured K.M. See
Engle, 456 U.S. at 121–22, 102 S. Ct. at 1568–69.
Still, there are reasons to believe the failure to instruct the
jury in accord with Wisconsin’s castle doctrine did implicate
his due process rights.10 As we have discussed, with respect to
the charged reckless-injury offense, self-defense operates to
negate an element of that offense: if the defendant’s use of
force to defend himself was reasonable, then his conduct could
not have been criminally reckless. To this extent, the absence or
disproof of self-defense could be equated with an element of
the reckless-injury offense. See Wis. Crim. Jury Instr. 801 n.1 (in
recklessness cases, “the absence of the privilege [of self-
defense] is identified as a fact the state must prove in addition
to the statutorily defined elements of the intentional crime”);
Austin, 836 N.W.2d at 838 (where pattern self-defense instruc-
tion advised jury that it should consider evidence related to
self-defense in deciding whether defendant’s conduct created
an unreasonable risk to another but also implied that defen-
dant must satisfy jury that he was acting in self-defense,
instruction improperly removed burden of proof from State to
show that defendant was engaged in criminally reckless
conduct). As Brown sees it, the trial court, by refusing to
modify the self-defense instruction in accordance with the
castle doctrine, expressly and erroneously allowed the jury to
10
As noted, the Wisconsin Court of Appeals itself did not consider
whether the instructional error constituted a violation of Brown’s due
process rights. Rather, it accepted the State’s confession that the instruction
was contrary to Wisconsin law but concluded that the error was harmless.
22 No. 21-1515
consider whether Brown could have retreated, and in so doing
modified not only what the jury could consider reasonable in
assessing his use of force in self-defense, but also what it could
consider unreasonable in assessing whether Brown’s conduct
was criminally reckless as charged. In the latter regard, Brown
argues that the jury instruction re-defined an element of the
charged offense in a way that lightened the State’s burden of
proof and hampered his own claim of self-defense. Put
concretely, the instruction as given permitted the jury to
convict Brown on a ground that the castle doctrine fore-
closed—that he could have retreated from the confrontation
with K.M. but did not—and thus that his use of force in self-
defense was not reasonable but rather amounted to criminally
reckless conduct.11
But we are nonetheless satisfied that any such due process
violation was harmless. The Wisconsin Court of Appeals
reached the same conclusion on direct review of Brown’s
conviction, concluding “beyond a reasonable doubt that a
rational jury would have come to the same conclusion absent
the [instructional] error.” R. 5-5 at 12 (quoting Seitz, 895
N.W.2d at 808). The state court in so holding applied the
prejudice inquiry for constitutional errors articulated by
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824 (1967), for cases
11
Brown’s focus in making this argument is on the aspect of the castle
doctrine that precludes consideration of retreat rather than the presumption
that he reasonably believed his use of force was necessary to protect
himself. That presumption assists a defendant, to be sure, but it arguably
does not impact the definition of an element of the charged offense in the
way that foreclosing the factfinder’s consideration of a particular circum-
stance (here, the possibility of retreat) does.
No. 21-1515 23
on direct review. See Seitz, 895 N.W.2d at 808 n.21. It thus falls
to us under the AEDPA to consider whether the state court’s
application of Chapman was reasonable. § 2254(d)(1); see Brown
v. Davenport, 142 S. Ct. 1510, 1525 (2022); Fry v. Pliler, 551 U.S.
112, 119, 127 S. Ct. 2321, 2326 (2007) (citing Mitchell v. Esparza,
540 U.S. 12, 124 S. Ct. 7 (2004) (per curiam)). But in order to
prevail on his habeas petition, it is not enough for Brown to
show the Wisconsin Court of Appeals unreasonably applied
Chapman in assessing whether the instructional error preju-
diced him; separately, he must also show that the instructional
error had a “substantial and injurious effect or influence” on
the jury’s verdict under Brecht v. Abrahamson, 507 U.S. 619,
637–38, 113 S. Ct. 1710, 1722 (1993), which specifies the stan-
dard that a federal habeas court must apply in assessing the
prejudicial impact of a constitutional error in a state-court
criminal proceeding. See Brown, 142 S. Ct. at 1524. As the
Supreme Court’s recent decision in Brown makes clear, these
are analytically distinct inquiries, and if the petitioner fails to
make either showing, then his request for relief must be
denied. Id. Thus, if Brown does not succeed in convincing us
that he was prejudiced by the flaw in the self-defense jury
instruction in accord with Brecht, that conclusion obviates the
need to separately consider whether the state court’s applica-
tion of Chapman was unreasonable under the AEDPA. Id. at
1528.
Brecht directs us to consider whether the error “had
substantial or injurious effect or influence in determining the
jury’s verdict.” Brecht, 507 U.S. at 637, 113 S. Ct. at 1722
(quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct.
1239, 1253 (1946)); see also Ayala, 576 U.S. at 267–68, 135 S. Ct.
24 No. 21-1515
at 2197–98; Fry, 551 U.S. at 121–22, 127 S. Ct. at 2328. And in
contrast to Chapman’s prejudice inquiry, as to which the State
bears the burden of persuasion, see Brown, 142 S. Ct. at 1523, it
is the habeas petitioner who bears the burden of demonstrating
that the error had such an effect or influence, see Brecht, 507
U.S. at 637, 113 S Ct. at 1722; Brown, 142 S. Ct. at 1523.
There must be more than a reasonable probability
that the error was harmful. The Brecht standard
reflects the view that a State is not to be put to the
arduous task of retrying a defendant based on
mere speculation that the defendant was preju-
diced by trial error; the court must find that the
defendant was actually prejudiced by the error.
Ayala, 576 U.S. at 268, 135 S. Ct. at 2198 (cleaned up). Ulti-
mately, a court may grant habeas relief only if it is in “grave
doubt” as to whether the federal error had a substantial or
injurious effect in determining the jury’s verdict. Id. at 267–68,
135 S. Ct. at 2197–98.
Initially, Brown suggests that we should apply Chapman
here, such that the burden is on the State to show beyond a
reasonable doubt that the instructional error did not influence
the verdict; but he is wrong in this assertion. He relies on Neder
v. United States, 527 U.S. 1, 119 S. Ct. 1827 (1999), which applied
Chapman in determining whether, in a federal criminal prose-
cution, a jury instruction that erroneously omitted an element
of the offense was harmless. Thus, the Court asked, “Is it clear
beyond a reasonable doubt that a rational jury would have
found the defendant guilty absent the error?” Id. at 18, 119
S. Ct. at 1838. But the Chapman standard for harmlessness
No. 21-1515 25
governs cases, like Neder, that are on direct review. In a habeas
case, it is Brecht rather than Chapman that governs. Brown, 142
S. Ct. at 1523–24; Wilber v. Hepp, 16 F.4th 1232, 1247 (7th Cir.
2021), cert. denied, 142 S. Ct. 1443 (2022).
Brown has placed a great deal of emphasis on the notion
that the instructional error permitted the jury to consider
whether he had the opportunity to retreat into his home. But
as Judge Crabb pointed out below, even if the jury had been
properly instructed in accordance with the castle doctrine, the
jury would still have been free to consider the possibility of
retreat unless it accepted Brown’s account that K.M. charged up
the driveway at him. 521 F. Supp. 3d at 801–02. Yet, the jury
could readily have rejected his version of events and credited
the testimony of other witnesses that Brown confronted K.M.
in the street. Id. Brown’s counsel has done a respectable job of
marshaling every possible argument in favor of his factual case
and against the State’s case on this point. But like the district
judge, we are not persuaded that a properly instructed jury
would have accepted his factual account of the key events
culminating in the stabbing.
Multiple witnesses, including Brown himself, agreed that
K.M. had been walked to his car on the street after the initial
scuffle between the two men. At that point in time, there was
no real threat to Brown.
Only Brown testified that K.M. subsequently charged up
the driveway. K.M.’s wife, Rebecca, directly contradicted
Brown on this point, testifying that Brown walked down the
driveway and confronted K.M. in the street. Kelan Phillips
likewise told police that Brown walked to where K.M. was
26 No. 21-1515
standing in the street and it was there that he struck K.M.
down.12
It is true that Cynthia Harms testified she witnessed (heard
more than saw) a scuffle next to the Mustang parked in the
driveway, at which point she left her upstairs window to
retrieve her phone and call 911, and upon returning to the
window saw K.M. at the bottom of driveway, where he
stepped toward, and then fell in front of, his nearby car.
Harms’ testimony was, as the state appellate court character-
ized it, “ambiguous.” R. 5-5 at 10. Harms testified that at no
point in her observations from the window did she see Brown.
Brown appears to infer from the fact that Harms saw K.M.
standing at the bottom of the driveway and collapsing as he
moved toward his car, but did not see Brown himself, that her
account supports the notion that the stabbing must have taken
place on the driveway and that K.M. walked back to the street
after being stabbed. But Harms also denied seeing any fighting
12
Brown notes that Phillips’ statements to the police were out-of-court
statements that would ordinarily be regarded as hearsay. The trial court
allowed the State to elicit these statements after Phillips professed an
inability to recall what he had observed on the night when Brown stabbed
K.M. and what he had told the officers who interviewed him. In such
circumstances, Wisconsin law allows a witness’s out-of-court statements to
the police to be admitted as substantive evidence as well as for impeach-
ment. Wis. Stat. § 908.01(4)(a)(1); Vogel v. State, 291 N.W.2d 838, 844–45
(Wis. 1980). Brown argues that out-of-court statements are unreliable and
should be discounted as a general matter, but he identifies no reason why
Phillips’ statements to the police should be discounted. Phillips was an
eyewitness to the stabbing, and he made consistent statements to two
different officers who interviewed him in the hours immediately after the
incident.
No. 21-1515 27
take place in Brown’s driveway, adding that she did not
observe anything that had occurred between the initial scuffle
she heard next to the Mustang parked in the driveway and the
point at which she returned to the window and saw K.M. at the
foot of the driveway.13 Harms’ testimony at best lends only
minimal and indirect support to Brown’s version of events.14
Importantly, the physical evidence at the scene also did not
lend support to Brown’s account that K.M. had stormed up the
driveway and confronted him there. K.M. was stabbed not
once but three times, which one would think would have
caused immediate bleeding. (Brown’s own arm wound,
sustained in the initial scuffle, resulted in blood droplets and
stains found in multiple locations: on the garage floor, on the
Cadillac sedan parked in the driveway, and on a bottle of
13
Harms told the 911 dispatcher that her view of Brown’s driveway was
blocked by trees.
14
To be frank, it is not entirely clear from Harms’ testimony which specific
points in the chain of events leading up to the stabbing that she observed.
When Harms first looked out her window, because she could not see who
was involved in the scuffle next to the Mustang (she only saw shadows), she
could have been witnessing the effort of Rebecca and other guests to
separate K.M. from Brown and get him out to the car, as opposed to the
initial tussle between Brown and K.M. in the garage. When Harms
subsequently returned to the window after calling the 911 dispatcher and
saw K.M. at the foot of the driveway, where he fell to the ground as he
moved toward his car, she was presumably observing K.M. after Brown
stabbed him in the head, but if so it is puzzling why, at the same time, she
saw Rebecca standing in the driveway and heard her yelling at K.M. to get
into the car, which by all accounts is what she was urging K.M. to do prior
to the stabbing rather than after.
28 No. 21-1515
lighter fluid that Brown threw at K.M.) Yet, not so much as a
drop of K.M.’s blood was found on the driveway; instead,
there was a large pool of blood in the street in front of the
driveway, with a streamlet of blood running from that pool
along the gutter. (Rebecca testified that she had wrapped an
undershirt around the knife in an effort to stanch the bleeding
from K.M.’s head wound.) The prosecution reasonably argued
to the jury that there would have been blood on the driveway
if Brown’s account were true.
Moreover, by the account of multiple witnesses, including
Harms, Brown made threatening statements even after K.M.
had collapsed in the street with the knife in his head, including
“He’s not dead yet, but I’ll kill him,” and, to Rebecca, “I’ve got
one for you too, bitch.” Brown acknowledged having made
such statements in his testimony. These are statements that are
inconsistent with the notion that Brown had been in fear for his
safety and had struck K.M. in self-defense.
Brown suggests it is implausible that the jury credited the
State’s version of the events leading up to the stab-
bing—Rebecca’s account in particular—given its decision to
acquit him on the attempted homicide charge. The Wisconsin
Court of Appeals addressed this point and rejected his inter-
pretation of the acquittal: “[T]he more likely explanation is that
the jury did not find beyond [a] reasonable doubt that Brown
acted with the necessary intent to kill the victim.” R. 5-5 at 11.
Brown faults the court’s reasoning in this regard. As he sees it,
had the jury credited Rebecca’s account that he was the
aggressor, that he went into his house to retrieve a knife, and
that he then traversed the length of the driveway and physi-
cally accosted K.M. with the knife in the street, then the jury
No. 21-1515 29
surely would have found that he intended to kill K.M. The jury
instead must have concluded that K.M. was the aggressor, that
K.M. confronted Brown in the driveway, and that Brown
struck K.M. with the knife in self-defense. The jury would have
acquitted him on the reckless-injury charge also, Brown
reasons, but for the instructional error that permitted the jury
to consider the possibility of retreat in assessing the reasonable-
ness of the actions he took to defend himself.
But we discern nothing irrational about the Wisconsin
appellate court’s observation as to the acquittal on the at-
tempted homicide charge. Any attempt to explain why a jury
acquitted the defendant on one charge but convicted him on
another is a necessarily speculative enterprise. See United States
v. Powell, 469 U.S. 57, 66–67, 105 S. Ct. 471, 477–78 (1984);
United States v. Askew, 403 F.3d 496, 501 (7th Cir. 2005); United
States v. McGee, 189 F.3d 626, 630 (7th Cir. 1999); United States
v. Nobles, 69 F.3d 172, 188–89 (7th Cir. 1995). We certainly can
assume that the jury, on a favorable view of the State’s wit-
nesses, could have convicted Brown on the attempted homicide
charge, but we do not agree with Brown that the decision to
acquit him on that charge necessarily or even likely means that
the jury credited his own account of events and determined
that K.M. was the aggressor and that he charged up at Brown
in the driveway, thus compelling Brown to defend himself. As
the state court noted, the attempted homicide charge required
a significantly more culpable mens rea than the reckless-injury
charge: an intent to kill versus an awareness that one’s acts
posed a risk of death or grave bodily harm to the victim. When
presented with the not altogether uncommon scenario of a late-
night, drunken brawl between aggrieved family members, the
30 No. 21-1515
jury might well have concluded that reckless injury was a
better fit for the facts in this case than attempted first degree
intentional homicide. Brown’s decision to introduce a knife
into his dispute with K.M. without question increased the odds
that he might mortally wound his cousin, but the jurors were
instructed that a conviction on the attempted homicide charge
required them to find that Brown’s acts “demonstrate[d]
unequivocally” that he had formed an intent to kill K.M. R. 5-
14 at 13–14. Brown, by his own admission to Jill Phillips,
screwed up. Or as Kelan Phillips put it, Brown was a nice man
who “just made a … mistake that day.” R. 5-12 at 107. It is not
difficult to imagine the jury deciding that Brown’s words and
actions reflected an awareness that he might grievously injure
his cousin but did not “demonstrate unequivocally” that he
intended to kill K.M. Like the state court, we are not convinced
that the acquittal on the attempted homicide charge means that
the jury adopted Brown’s version of events and signals that he
might well have been acquitted on the reckless-injury charge
but for the instructional error.
Brown has also faulted the state trial judge and appellate
court for finding, in light of the evidence we have described,
that his account of events was incredible as they assessed
whether or not the omission of the castle doctrine was harm-
less under Chapman. Given that we have engaged in a de novo
review of harmlessness under Brecht, any purported faults in
the state courts’ own review for harmlessness are really beside
the point. That said, Brown is correct that credibility assess-
ments and the weighing of evidence are the province of the
factfinder, and insofar as possible, we as a habeas court must
avoid supplanting the role of a jury. See Tyson v. Trigg, 50 F.3d
No. 21-1515 31
436, 453 n.2 (7th Cir. 1995) (Flaum, J., concurring) (collecting
cases).
Nonetheless, Brecht requires that we make a probabilistic
assessment in determining whether the instructional error had
a substantial and injurious effect or influence in determining
the jury’s verdict: we must ask ourselves “whether a properly
instructed jury would have arrived at the same verdict, absent
the error.” Armfield v. Nicklaus, 985 F.3d 536, 543–44 (7th Cir.)
(quoting Czech, 904 F.3d at 577), cert. denied, 142 S. Ct. 190(2021). And as the district court pointed out, that requires us to
consider, inter alia, the overall strength of the State’s case
against the totality of the evidence. 521 F. Supp. 3d at 801
(citing Czech, 904 F.3d at 577). In doing so, we may necessarily
touch upon questions of witness credibility and the plausibility
of the parties’ respective theories of the case. See Toney v. Peters,
48 F.3d 993, 998 (7th Cir. 1995) (collecting cases).
For all of the reasons we have set out, we harbor no grave
doubt as to whether a properly instructed jury still would have
convicted Brown. The State had a strong case against Brown
which established not only that the final physical confrontation
between him and K.M. took place in the street, off of Brown’s
property, but also, as the district court noted, that Brown was
the aggressor. 521 F. Supp. 3d at 802. No testimony other than
Brown’s supported his version of events, the physical evidence
did not corroborate his averment that the stabbing took place
in his driveway, and, as the district court emphasized, Brown’s
own words in the aftermath of the stabbing suggested that he
had stabbed K.M. in anger rather than in fear for his life. Id. at
32 No. 21-1515
803. In short, Brown has not shown that he was actually
prejudiced by the trial court’s error in instructing the jury.
III.
For the foregoing reasons, we AFFIRM the judgment.