38 F.4th 581
7th Cir.2022Background
- Robert Lee-Kendrick was convicted by a jury in 2011 of repeatedly sexually assaulting three girls; convictions turned on witness credibility (no physical evidence).
- Trial defense argued accusations were retaliatory after Lee-Kendrick disciplined the girls; he denied the assaults. Jury convicted; sentenced to lengthy confinement and supervision.
- Post-trial and appellate proceedings raised ineffective-assistance-of-counsel claims about trial counsel’s conduct; Lee-Kendrick later, pro se, argued postconviction counsel was ineffective for not raising additional trial-counsel errors, including failure to call Kendrella Keeler as an impeachment witness for accuser A.W.
- Keeler told a public defender investigator she thought A.W. said she would call police and wanted to get Lee-Kendrick in trouble; Keeler had no firsthand knowledge of assaults and was not an eyewitness.
- Wisconsin courts applied the Romero-Georgana “clearly stronger” standard and the Escalona-Naranjo rule requiring claims be raised on direct appeal; the Wisconsin Court of Appeals denied relief. Lee-Kendrick sought federal habeas relief.
- The Seventh Circuit held §2254(i) does not bar §974.02 ineffective-assistance claims but found the Keeler-related claim procedurally defaulted under Escalona-Naranjo and that Lee-Kendrick failed to show cause and prejudice to excuse the default.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 28 U.S.C. §2254(i) bars an ineffective-assistance claim brought under Wis. Stat. §974.02 | §2254(i) should not preclude review because §974.02 is part of direct-review procedures | §2254(i) could bar collateral postconviction ineffectiveness claims | Court: §974.02 motions are part of Wisconsin’s direct-review process, so §2254(i) does not bar such claims |
| Whether the Escalona-Naranjo procedural bar is an adequate and independent state ground that defaults the Keeler claim | Lee-Kendrick argued district court erred in applying Escalona-Naranjo to bar federal review | State: Wisconsin Court of Appeals clearly relied on Escalona-Naranjo; it is an adequate and independent ground | Court: Escalona-Naranjo is firmly established and independent; the Keeler claim is procedurally defaulted |
| Whether postconviction counsel’s failure to raise trial counsel’s omission (not calling Keeler) constitutes cause to excuse the default (Strickland/"clearly stronger" test) | Keeler’s potential impeachment of A.W. made this claim plainly/clearly stronger than issues raised on direct appeal | State: Keeler had no direct knowledge; testimony would be limited and not "clearly stronger" than issues actually raised | Court: Petitioner failed to show the unraised Keeler claim was "clearly stronger"; no cause established |
| Whether petitioner demonstrated prejudice from the alleged omission (to overcome default) | Keeler’s testimony would have undermined A.W.’s credibility and affected the verdict | State: Keeler’s statements were minimal, inconsistent with defense theory, and unlikely to change outcome | Court: Petitioner did not show prejudice; because default stands federal habeas review is barred (merits not reached) |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)
- Coleman v. Thompson, 501 U.S. 722 (1991) (cause-and-prejudice framework for excusing procedural default)
- Davila v. Davis, 137 S. Ct. 2058 (2017) (ineffective-assistance-of-appellate-counsel "clearly stronger" standard and cause analysis)
- Carey v. Saffold, 536 U.S. 214 (2002) (look to state procedure to determine whether a state process is collateral)
- State v. Escalona-Naranjo, 517 N.W.2d 157 (Wis. 1994) (Wisconsin rule requiring postconviction claims be raised on direct appeal)
- State v. Romero-Georgana, 849 N.W.2d 668 (Wis. 2014) (requires showing unraised issues are "clearly stronger")
- Page v. Frank, 343 F.3d 901 (7th Cir. 2003) (describing Wisconsin’s §974.02 step as part of direct appeal)
- Garcia v. Cromwell, 28 F.4th 764 (7th Cir. 2022) (holding Escalona-Naranjo is an adequate and independent state ground barring federal review)