21-1402
7th Cir.Jun 1, 2023Background
- May 23, 2009: a shooting at a Milwaukee after‑set party killed Melvin Williams and injured two others; prosecution relied primarily on eyewitness identifications and limited physical evidence (multiple caliber casings, no murder weapon).
- At trial two witnesses (Shakira King and Antwan Smith‑Currin) identified Jerry Wilson as the shooter; two other witnesses (Coats and Ross) gave inculpatory statements to police but were equivocal or recanted at trial; trial testimony contained multiple inconsistencies about the shooter’s appearance and positioning.
- Wilson was convicted on one count of reckless homicide and two counts of reckless endangerment and sentenced to 28 years.
- Postconviction: Wilson first pursued a § 974.02 ineffective‑assistance‑of‑trial‑counsel motion (denied under Wisconsin’s Allen pleading standard), then later obtained a 2013 statement and live testimony (Wallace) identifying Antwan Smith‑Currin as the shooter; the Wisconsin Supreme Court ordered an evidentiary hearing on that newly discovered evidence.
- Wallace testified at the state evidentiary hearing that Smith‑Currin retrieved a gun, ran onto the porch and opened fire, then admitted he "just offed" someone and discussed blaming Wilson; the state trial court found Wallace generally credible but denied a new trial; Wilson voluntarily dismissed other claims pending in state supreme court and then sought federal habeas relief.
- The district court held Wilson’s ineffective‑trial‑counsel claim procedurally defaulted under Wisconsin’s Allen rule, his ineffective‑postconviction‑counsel claim unexhausted (no complete round of review), and that Wallace’s new evidence did not satisfy Schlup’s actual‑innocence gateway; the Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were Wilson’s ineffective‑assistance‑of‑trial‑counsel claims reviewable in federal habeas? | Wilson contends trial counsel was constitutionally ineffective and federal review should proceed. | State contends the claim was denied by Wisconsin courts on adequate and independent state procedural ground (Allen pleading rule). | Court: Claim is procedurally defaulted—Wisconsin’s Allen standard is an adequate and independent state bar. |
| Are Wilson’s ineffective‑assistance‑of‑postconviction‑counsel claims exhausted? | Wilson argues the claim merits federal review and that § 974.02 proceedings implicate federal rights. | State argues Wilson failed to present the claim through one complete round of state review (voluntary dismissal prevented Wisconsin Supreme Court review). | Court: Claim is procedurally defaulted for failing to exhaust one complete round of state review. |
| Can actual innocence excuse the procedural defaults? (Schlup gateway) | Wilson: Wallace’s new, credible eyewitness testimony naming Smith‑Currin as shooter, plus corroboration, makes it more likely than not no reasonable juror would convict. | State: Wallace’s testimony is uncorroborated or conflicts with other evidence; even if credible it does not overcome credible inculpatory IDs and physical evidence; multiple shooters remain possible. | Court: Wallace’s testimony, when judged with the full trial record, does not meet the demanding Schlup standard; petitioner fails to show it is more likely than not that no reasonable juror would convict. |
| Does the federal habeas court reach the merits of Wilson’s counsel‑ineffectiveness claims? | Wilson asks merits review if procedural default excused. | State opposes merits review absent excusing cause or actual innocence. | Court: Because defaults are not excused, the court did not reach the merits and affirmed denial of habeas relief. |
Key Cases Cited
- Schlup v. Delo, 513 U.S. 298 (actual‑innocence gateway standard for excusing procedural default)
- House v. Bell, 547 U.S. 518 (consider all old and new evidence when assessing actual innocence)
- McQuiggin v. Perkins, 569 U.S. 383 (Schlup standard is demanding; actual‑innocence gateway narrow)
- Coleman v. Thompson, 501 U.S. 722 (cause‑and‑prejudice or miscarriage of justice exceptions to procedural default)
- Davila v. Davis, 137 S. Ct. 2058 (federal review barred where state court denied claim on adequate and independent state grounds)
- State v. Allen, 682 N.W.2d 433 (Wisconsin pleading standard for ineffective‑assistance postconviction motions)
- Lee‑Kendrick v. Eckstein, 38 F.4th 581 (§ 974.02 ineffective‑counsel claims treated as direct‑appeal type proceedings)
- Blackmon v. Williams, 823 F.3d 1088 (new eyewitness testimony did not satisfy Schlup where credible inculpatory testimony remained)
- Walker v. Martin, 562 U.S. 307 (requirements for an adequate state procedural ground)