Milton v. Boughton, 902 F.3d 721

In August 2008 Timothy Cotton was beaten and shot; Geometry Milton was later charged as a party to first-degree reckless homicide and tried separately.
Four eyewitnesses at trial: Cotton’s sister Kimberly, her son James, Kimberly’s boyfriend Robert Howard, and neighbor Cedric Jones; James and Howard identified Milton in a post‑indictment live lineup (uncounseled).
Milton invoked his right to counsel during a police interview two days after arrest; the record is silent whether he waived counsel before the live lineup the same day.
Physical evidence: .45 caliber casing at Milton’s home matching a casing at the scene and a black‑and‑white bandana found in Milton’s bedroom matching witness descriptions.
Milton’s trial counsel did not move to suppress the uncounseled lineup or related in‑court identifications; Milton was convicted and sentenced to lengthy prison and supervision terms.
On direct appeal and in state postconviction proceedings, the Wisconsin courts assumed counsel might have been deficient but held Milton failed to show Strickland prejudice given other admissible ID and physical evidence; the Wisconsin Supreme Court denied review. Milton’s §2254 habeas petition was denied and that denial is here affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for failing to move to suppress identifications from an uncounseled post‑indictment lineup and related in‑court IDs	Milton: Gilbert bars use of uncounseled lineup evidence absent a valid waiver, so counsel was deficient for not moving to suppress (Strickland deficiency)	State: Milton bore the burden to prove he did not waive counsel at the lineup; even if counsel erred, the state court correctly found no prejudice given other evidence	Court assumed possible deficiency but, under AEDPA, upheld the state court’s conclusion that Milton did not show a reasonable probability of a different outcome (no Strickland prejudice)

Gilbert v. California, 388 U.S. 263 (prohibits use of uncounseled post‑indictment identification absent waiver)
Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficiency + prejudice)
United States v. Wade, 388 U.S. 218 (analysis of admissibility of identifications and independent source doctrine)
Harrington v. Richter, 562 U.S. 86 (AEDPA deference standard)
Wiggins v. Smith, 539 U.S. 510 (state court merits review subject to AEDPA deference)
Blackmon v. Williams, 823 F.3d 1088 (defines "reasonable likelihood" of acquittal standard for Strickland prejudice)
Morales v. Johnson, 659 F.3d 588 (upholding state court Strickland prejudice ruling where other eyewitness IDs were strong)