Wayerski, Gary v. Cooper, Sarah, 3:20-cv-00088

Background

Petitioner Gary L. Wayerski, a former police officer, was convicted in 2012 of 16 felony child-sex offenses based on testimony from two teenage victims, corroborating family testimony, pornography and search history from his devices, and a DNA match linking semen found in his residence to one victim.
At trial a jail inmate, John Clark, testified on rebuttal that Wayerski had confessed to masturbating the victims, watching pornography with them, and asking Clark for defense advice; Clark admitted multiple prior convictions but no pending charges were disclosed at trial.
Defense counsel recalled Wayerski after Clark’s testimony but did not ask Wayerski whether he had confessed to Clark; defense otherwise presented witnesses who claimed one victim had recanted and argued fabrication tied to a drug investigation.
After trial petitioner learned Clark had been charged shortly before trial with several crimes (including alleged sexual offenses); the prosecutor had discovered this via an online court database but did not disclose the pending charges to defense.
Petitioner raised (1) ineffective assistance of counsel for failing to question him about the alleged jailhouse confession, and (2) a Brady claim for nondisclosure of Clark’s pending charges; the Wisconsin Supreme Court rejected both claims and affirmed the conviction.
The federal district court denied Wayerski’s §2254 habeas petition, concluding the Wisconsin Supreme Court reasonably applied Supreme Court precedent (Strickland and Brady) and that the withheld/impeachment evidence was not material in light of overwhelming evidence of guilt; a certificate of appealability was denied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ineffective assistance — failure to ask Wayerski about alleged jailhouse confession	Counsel performed deficiently by not asking Wayerski to deny Clark’s testimony; that omission amounted to a de facto admission and prejudiced the defense	Even if performance was deficient, there was no prejudice because Wayerski consistently denied guilt at trial, Clark’s credibility was undermined by his criminal history, and the remaining evidence of guilt was overwhelming	Denied — Wisconsin Supreme Court reasonably applied Strickland; no Strickland prejudice shown
Brady — nondisclosure of Clark’s pending child-sex charges	Prosecutor suppressed impeachment evidence (Clark’s pending charges) that would have undermined Clark’s motive and credibility, so the evidence was material under Brady	Although nondisclosure occurred, the withheld impeachment evidence was not material because Clark was not a critical witness and the prosecution’s case was strong	Denied — Wisconsin Supreme Court reasonably applied Brady; nondisclosed evidence not material
Certificate of appealability	Wayerski seeks COA to appeal habeas denial	State opposes COA	Denied — petitioner failed to make a substantial showing that reasonable jurists would debate the district court’s assessment

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance: deficient performance and prejudice)
Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor must disclose favorable, material evidence)
Harrington v. Richter, 562 U.S. 86 (2011) (prejudice under Strickland requires a substantial—not merely conceivable—likelihood of a different result)
Kyles v. Whitley, 514 U.S. 419 (1995) (materiality standard for Brady: reasonable probability that result would have been different)
Wearry v. Cain, 136 S. Ct. 1002 (2016) (withholding impeachment of the prosecution’s key witness can violate Brady)
Turner v. United States, 137 S. Ct. 1885 (2017) (Brady materiality analysis where witness was minor to prosecution’s case)
Sims v. Hyatte, 914 F.3d 1078 (7th Cir. 2019) (framework for Brady review on federal habeas)
Carter v. Duncan, 819 F.3d 931 (7th Cir. 2016) (deference to state-court Strickland prejudice analysis under AEDPA)
Tennard v. Dretke, 542 U.S. 274 (2004) (standard for a certificate of appealability and substantial showing of constitutional violation)
Slack v. McDaniel, 529 U.S. 473 (2000) (standard for evaluating COA requests)