955 F.3d 597
7th Cir.2020Background
- Early morning after the killing, police found Christopher Gish disoriented and later recorded him confessing to stabbing his longtime girlfriend; he was charged with first-degree intentional homicide (mandatory life).
- Gish told his court-appointed lawyer he had taken Xanax and Lamictal; counsel investigated Lamictal but did not investigate Xanax and advised accepting a plea to first-degree reckless homicide (max 60 years); Gish pleaded guilty and received 40 years plus 20 years extended supervision.
- On direct appeal Gish claimed trial counsel was ineffective for not investigating an involuntary-intoxication (Xanax) defense; the Wisconsin Court of Appeals rejected the claim as having no arguable merit and declined to consider out-of-record evidence.
- Gish sought federal habeas relief; the district court held an evidentiary hearing, found counsel’s failure was deficient but denied relief for lack of prejudice—concluding the Xanax defense was unlikely to succeed and the plea was a reasonable, attractive option.
- The Seventh Circuit reviewed de novo the prejudice question (state court hadn’t reached it), found the Wisconsin court unreasonably applied Strickland on performance, but affirmed denial of habeas because Gish could not show a reasonable probability he would have gone to trial and prevailed on the Xanax-based defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel performed deficiently by failing to investigate a Xanax-based involuntary-intoxication defense | Gish: He told counsel about Xanax; counsel failed to investigate a potentially complete defense | State: There was "nothing to investigate" in the trial record; appellate counsel said claim was frivolous | Court assumed counsel’s omission was deficient (counsel admitted failing to assess Xanax) but treated performance and moved to prejudice analysis |
| Whether counsel’s error prejudiced Gish under Hill (i.e., would he have rejected the plea and likely prevailed at trial) | Gish: He would have rejected the plea and gone to trial even if the defense had a small chance of success | State: The Xanax defense was unlikely to succeed given medical, testimonial, and forensic evidence; plea substantially reduced exposure (life → 60 yrs) | No prejudice: the involuntary-intoxication defense lacked a reasonable prospect of success, so Hill prejudice not shown |
| Whether the Wisconsin Court of Appeals unreasonably applied Strickland by refusing to consider out-of-record evidence and denying an evidentiary hearing | Gish: Appellate court unreasonably ignored evidence required to show counsel’s failure | State: Issue belonged to trial record; nothing was before trial court to trigger relief | Seventh Circuit: Wisconsin court unreasonably applied Strickland’s performance prong and district court properly held an evidentiary hearing, but relief still denied for lack of prejudice |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two-part ineffective-assistance standard)
- Hill v. Lockhart, 474 U.S. 52 (prejudice standard for counsel errors influencing guilty pleas)
- Lee v. United States, 137 S. Ct. 1958 (prejudice can be shown where collateral consequence is the determinative factor)
- Wilson v. Sellers, 138 S. Ct. 1188 (review of state-court reasoned opinions on habeas review)
- Rompilla v. Beard, 545 U.S. 374 (de novo review of prejudice when state court did not reach the issue)
- Padilla v. Kentucky, 559 U.S. 356 (rationality of rejecting a plea under Hill/Padilla framework)
- Davis v. Lambert, 388 F.3d 1052 (7th Cir. — evidentiary hearing warranted when counsel’s failure to investigate is at issue)
- Mosley v. Atchison, 689 F.3d 838 (7th Cir. — state court unreasonably applied Strickland when it disregarded evidence that counsel failed to pursue witnesses)