4 F.4th 541
7th Cir.2021Background:
- Powell was charged with attempted first-degree intentional homicide, armed robbery, and first-degree reckless injury after an altercation in which Rabe suffered severe throat and other injuries and was run over by Powell’s truck.
- At trial the jury acquitted Powell of the two more serious counts but convicted him of first-degree reckless injury; the court had given Wisconsin’s pattern instruction on the "utter disregard for human life" element.
- During deliberations the jury asked whether a time element (before/during/after) applied to "utter disregard," and the court, with counsel’s agreement, supplemented the instruction to say the reckless-injury crime covered conduct while Powell was operating the vehicle and not conduct after Rabe had been run over, and otherwise referred back to the original instruction.
- Powell later argued in state postconviction proceedings that the supplemental instruction misstated the law (should allow consideration of the totality/timeframe) and that counsel was ineffective for agreeing to it; counsel testified he approved it because it limited the jury to conduct while driving and thus helped Powell.
- The Wisconsin courts denied relief; the federal district court denied §2254 habeas relief, finding the state appellate court reasonably applied Strickland and that counsel’s choice was strategic; the Seventh Circuit affirmed, applying AEDPA deference and rejecting Powell’s challenges.
Issues:
| Issue | Powell's Argument | State's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for agreeing to the supplemental jury instruction | Counsel was objectively deficient for approving an instruction that misstated the law and limited the jury’s consideration of the totality/timeframe | Counsel had reasonable, strategic reasons to accept a limiting clarification and the instruction accurately answered the jury’s question | Counsel was not objectively deficient; decision was a reasonable strategic choice and state court reasonably applied Strickland |
| Whether the supplemental instruction erroneously narrowed the law (standalone instructional error) | The instruction impermissibly excluded pre- and post-driving conduct and conflicted with the original totality instruction | The supplemental answer accurately responded to the jury’s question about what injury-causing conduct was at issue and referred jurors back to the correct pattern instruction; separate claim was procedurally defaulted | The state appellate court’s conclusion that the supplemental instruction was an accurate response was not shown unreasonable; federal relief denied |
| Whether federal habeas relief is warranted despite Cates precedent | Cates warrants relief when an instruction expands the offense and relaxes the government’s burden; Powell says Cates controls | Cates is distinguishable; AEDPA and Strickland require doubly deferential review of state-court adjudication | AEDPA/Strickland deferential framework applies; Cates is distinguishable and does not entitle Powell to relief |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two-part ineffective assistance standard: deficient performance and prejudice)
- Cates v. United States, 882 F.3d 731 (7th Cir. 2018) (counsel ineffective where defective instruction expanded offense and eased government’s burden)
- Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA requires state-court decisions to be reasonable, not merely incorrect)
- Cullen v. Pinholster, 563 U.S. 170 (2011) (explains doubly deferential Strickland + AEDPA review)
- Waddington v. Sarausad, 555 U.S. 179 (2009) (jury instructions must be judged in the context of the whole charge and record)
- Brumfield v. Cain, 576 U.S. 305 (2015) (state-court factual findings stand unless unreasonable; reasonable minds standard)
- Wood v. Allen, 558 U.S. 290 (2010) (state-court factual determinations not unreasonable merely because a federal court would reach a different conclusion)