Kerr v. Thurmer
2011 U.S. App. LEXIS 6284
| 7th Cir. | 2011Background
- Kerr killed Graff after Graff threatened Kerr’s wife during an affair, and Kerr surrendered to police.
- Kerr was convicted of first-degree intentional homicide in Wisconsin; sentenced to life with parole eligibility after 21 years.
- Kerr filed a post-conviction motion (Wis. § 974.06) alleging ineffective assistance of counsel, including failure to present adequate provocation and bad plea advice.
- Wisconsin trial court rejected the provocation claim; Wisconsin Court of Appeals and Supreme Court denied review.
- Kerr then filed a federal habeas petition under 28 U.S.C. § 2254, raising two ineffective-assistance theories: inadequate provocation defense and erroneous plea-bargain advice.
- The Seventh Circuit vacated and remanded for a hearing on Kerr’s plea-bargain theory, while ultimately affirming the lower court’s denial of relief on the provocation theory.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the provocation defense reasonably applied under Strickland and AEDPA? | Kerr: defense counsel failed to present adequate provocation. | State: trial court reasonably concluded no adequate provocation existed. | State court decision was reasonable; no relief. |
| Did counsel's erroneous plea-advice prejudices Kerr? | Kerr: lawyers misinformed about plea penalties causing trial decision error. | State: no prejudice shown; decision based on trial merits and state-law limits. | Procedural default issues block merits; remand for evidentiary hearing on plea-bargain claim. |
| Should the plea-bargain claim be reviewed for merits or dismissed as default under AEDPA? | Kerr: the state court never addressed merits; review de novo. | State: default forecloses merits review unless properly preserved. | Default forfeited; but merits review is allowed; remand for evidentiary development. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (ineffective-assistance framework for deficient performance and prejudice)
- Harrington v. Richter, 131 S. Ct. 770 (2011) (AEDPA deference and 'unreasonable application' standard)
- Williams v. Taylor, 529 U.S. 362 (2000) (application of Strickland under AEDPA)
- Ylst v. Nunnemaker, 501 U.S. 797 (1991) (procedural-default/abandonment guidance for multiple state court rulings)
- Coleman v. Thompson, 501 U.S. 722 (1991) (adequate-and-independent state-ground doctrine)
- Hill v. Lockhart, 474 U.S. 52 (1985) (Strickland standard applied to guilty-plea decisions)
- Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (plea advice and lawful representation standards)
- Julian v. Bartley, 495 F.3d 487 (2007) (probative standard for prejudice in plea-bargain cases)
- Moore v. Bryant, N/A (2003) (plea-bargain prejudice considerations in Strickland context)