CESAR O. GARCIA, Petitioner-Appellant, v. DAN CROMWELL, Warden, Respondent-Appellee.
No. 19-2771
United States Court of Appeals for the Seventh Circuit
Decided March 11, 2022
Submitted September 23, 2020
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 17-C-693 — William C. Griesbach, Judge.
Before SYKES, Chief Judge, and HAMILTON and ST. EVE, Circuit Judges.
In the meantime, the state moved to dismiss the reckless-endangerment counts, acknowledging that they were lesser-included
Garcia then returned to the trial court with a pro se postconviction motion under
In an appropriate case, ineffective assistance of postconviction counsel may qualify as a sufficient reason to excuse a procedural default. State v. Romero-Georgana, 849 N.W.2d 668, 678 (Wis. 2014). But this gateway to merits review of a defaulted claim carries a heightened pleading burden: Garcia needed to allege specific facts that, if true, would establish his postconviction counsel’s ineffectiveness. Id. One element of this pleading burden requires factual allegations showing that the defaulted claims were “clearly stronger” than the issues postconviction counsel chose to present. Id. at 679. The trial judge denied Garcia’s section 974.06 motion, and the court of appeals affirmed, citing Escalona-Naranjo and Romero-Georgana.
Garcia then petitioned for federal habeas relief under
We affirm on different grounds. The state appellate court rejected Garcia’s second postconviction motion based on the Escalona-Naranjo bar and Garcia’s failure to satisfy Romero-Georgana’s pleading standard for overcoming procedural default. Those are independent and adequate state procedural grounds, so federal review is barred unless Garcia can establish cause for and prejudice from his default. He has not done so.
I. Background
A. The Shooting
The drive-by shooting at the center of Garcia’s case was the culmination of his months-long effort to intimidate his former girlfriend Hilda Garcia-Rojas. Before she broke up with him, Garcia told Hilda that if she ever left him for someone else, he would kill her and her new boyfriend. When she ended their relationship and moved in with Luis Perez-Huitron, Garcia began stalking her. He followed her home from work and parked down the street from the house where she lived with Luis.
On the evening of April 16, 2008, Luis drove Hilda to her third-shift factory job in Kenosha. After dropping her off at about 10 p.m., Luis noticed Garcia’s car—a beige Mazda—parked outside the factory. As Luis drove home, he saw that Garcia was following him. Because of Garcia’s threats against Hilda and previous stalking behavior, Luis called his brother Arturo,
Garcia parked his car down the block and gestured toward Luis with his cell phone. He then called Luis at 10:24 p.m. Luis took the call and the two briefly argued. Garcia ended the call at 10:27 p.m. and slowly drove toward the trio. As he passed, he pulled out a gun and started shooting at them. He missed Luis and Arturo, but one of his shots struck Carlos in the upper chest.
Luis and Arturo rushed Carlos to the hospital. While on the way, they called 911 to report the crime. Thanks to rapid medical attention, Carlos survived. Doctors removed the bullet from his chest.
Kenosha police officers responded to Luis’s house within minutes. They secured the scene and quickly learned that Garcia lived with his mother in nearby Racine. Officers from the Racine Police Department drove by the home, but the beige Mazda wasn’t there. They maintained surveillance and shortly after midnight reported that the beige Mazda was now parked outside the home. Some 25 officers from both departments—including a full SWAT team—responded to the home, and a lengthy standoff ensued. Officers surrounded the house and through a loudspeaker repeatedly ordered the occupants to come outside.
Garcia’s mother held out for some time but eventually complied. She initially denied that Garcia was there, but within a few minutes she admitted that he was hiding in the attic. Garcia continued to refuse the officers’ commands to come out, even after they fired tear gas into the house.
About five hours into the standoff, officers entered the house and took Garcia into custody. They then searched the home inside and out and found a .22-caliber revolver hidden under the back porch. In the basement they found a large number of .22-caliber spent cartridges and a wooden board riddled with bullet holes. A firearms examiner later determined that the bullet recovered from Carlos’s chest was fired from the gun that was found under the porch, as were several bullets recovered from Luis’s car at the scene. The markings on the spent cartridges in the basement also matched the gun. Finally, the police found Garcia’s cell phone in the Mazda and confirmed that he had placed a call to Luis’s phone number at 10:24 p.m.
Under further questioning by the police, Garcia’s mother said that Garcia arrived home shortly before midnight that evening, woke her up, and anxiously told her that he had done something bad that night. She also stated that when the officers ordered them to come out of the house, Garcia told her to lie and say he was not home. She recanted these statements at trial, but they were admitted into evidence through an officer’s testimony.
B. Trial
Garcia was charged with three counts of attempted first-degree homicide, three counts of first-degree recklessly endangering safety, and one count of aggravated battery. The case proceeded to trial in late July 2010. The state elicited the evidence we’ve just described, and Carlos and Luis identified Garcia as the shooter. (Arturo corroborated their account of the shooting but did not make an in-court identification.)
Garcia’s defense was that that Luis, Arturo, and Carlos staged the shooting in order to frame him. As support for this
To explain the hours-long standoff with police, Garcia testified that he hid in the attic to avoid being arrested on an outstanding warrant for a missed court date a month before the shooting on a charge of unlawfully possessing a different .22-caliber handgun. This testimony opened the door to cross-examination about the circumstances of that arrest. Under questioning from the prosecutor, Garcia was forced to admit that he had been arrested in his car while parked outside a woman’s house in possession of binoculars, a ski mask, rubber gloves, a loaded .22-caliber handgun, and ammunition—incriminating items suggestive of stalking and premeditated assault. He also acknowledged that when the police questioned him about the gun, he told them—falsely—that he had “just found” it. When the prosecutor pressed him about that falsehood, Garcia confessed “I guess I lied.”
In an effort to cast doubt on the identification testimony from Luis and Carlos, Garcia’s attorney presented an expert witness who testified that their accounts of the shooting were inconsistent with some of the physical evidence at the scene. But the expert’s analysis relied on questionable suppositions about the positions of the shooter, the three victims, and their vehicles. Finally, in closing argument Garcia’s counsel insisted that Hilda was lying about Garcia’s threatening behavior and also suggested that the police manufactured the evidence of Garcia’s phone call to Luis at 10:24 p.m. on the night of the shooting.
The jury convicted Garcia on all counts. The judge imposed a sentence of 40 years in prison on the attempted homicide counts, concurrent prison terms on the other counts, and 20 years of extended supervision.1
C. State Postconviction Proceedings
Represented by new appointed counsel for postconviction proceedings and appeal, see
While his appeal was pending, Garcia obtained leave to reopen his postconviction motion, and the state conceded that the reckless-endangerment counts were indeed lesser-included offenses of the attempted-homicide
In December 2015 Garcia returned to the trial court with a pro se postconviction motion under
The trial judge denied the pro se motion without an evidentiary hearing. Garcia appealed, and in January 2017 the Wisconsin Court of Appeals summarily affirmed in a brief order. The appellate court explained that the new claims were procedurally barred under Escalona-Naranjo because Garcia failed to raise them in his first postconviction motion and failed to adequately plead a sufficient reason for the default. In particular, the court observed that Garcia “fail[ed] to demonstrate how and why these [new] claims are ‘clearly stronger’ than the issues postconviction counsel … present[ed]” in the first motion. State v. Garcia, No. 2016AP381, 2017 WL 218298, at *2 (Wis. Ct. App. Jan. 18, 2017) (quoting Romero-Georgana, 849 N.W.2d at 679). The Wisconsin Supreme Court denied review in April 2017.
D. Federal Habeas Petition
A few months later, Garcia filed a pro se petition for habeas relief under
The state responded with a procedural objection, noting that Escalona-Naranjo and Romero-Georgana—the cases on which the state appellate court rested its decision—are independent and adequate state rules of procedural default, so Garcia had to demonstrate cause for and prejudice from the default and could not do so. Alternatively, the state urged the court to reject Garcia’s claims on the merits.
The district judge agreed that the Escalona-Naranjo bar was an independent and adequate state rule, but he nonetheless held that Garcia had not procedurally defaulted his federal claims. The judge reasoned that the pleading requirement announced in Romero-Georgana was not clearly established under Wisconsin law and, in any event, was too enmeshed with the merits of the Strickland ineffectiveness inquiry to be considered an independent state procedural rule.
Moving to plenary review of the merits of Garcia’s claims, the judge ruled that
Garcia then asked this court for a certificate of appealability on his two Strickland claims. See
II. Discussion
We begin as we must with procedural default. “Merits review of a habeas claim is foreclosed if the relevant state court’s disposition of the claim rests on a state law ground that is adequate and independent of the merits of the federal claim.” Triplett v. McDermott, 996 F.3d 825, 829 (7th Cir. 2021). When a state court rejects a prisoner’s challenge to his conviction on an independent and adequate state-law ground, “principles of comity and federalism dictate against upending the state-court conviction” and the federal claim is deemed procedurally defaulted. Thomas v. Williams, 822 F.3d 378, 384 (7th Cir. 2016). Unless the petitioner can establish “cause” for and “prejudice” from the default, “federal habeas review is at an end.” Johnson v. Thurmer, 624 F.3d 786, 789 (7th Cir. 2010). We review questions of procedural default de novo. Id.
The analysis here requires some unpacking of the state procedural regime for criminal appeals and postconviction proceedings. As we’ve noted in prior cases, “the criminal appeal process in Wisconsin is unusual” and characterized by some “counterintuitive” complexity. Carter v. Buesgen, 10 F.4th 715, 717–18 (7th Cir. 2021); see also Morales v. Boatwright, 580 F.3d 653, 656–57 (7th Cir. 2009); Huusko v. Jenkins, 556 F.3d 633, 634–35 (7th Cir. 2009). The complexity is largely attributable to the state’s decision to “combine[] some aspects of direct and collateral review by allowing post-judgment, but pre-appeal, motions to raise matters outside the trial record.” Huusko, 556 F.3d at 634–35.
A. Postconviction Procedure in Wisconsin
After a conviction and sentencing in a Wisconsin criminal case, “a defendant’s first avenue of relief is a postconviction motion under § 974.02” of the Wisconsin Statutes. Page v. Frank, 343 F.3d 901, 905 (7th Cir. 2003). In contrast to the practice in many other jurisdictions, claims of ineffective assistance of counsel may—and, as we shall see, usually must—be raised at this postjudgment, preappeal stage of the proceedings. Id.; see also Romero-Georgana, 849 N.W.2d at 677–78; State v. Lo, 665 N.W.2d 756, 766 (Wis. 2003); Escalona-Naranjo, 517 N.W.2d at 158–59.
We recently sketched the steps that precede a section 974.02 motion. Carter, 10 F.4th at 717–18. In brief, the defendant must file a notice of intent to pursue postconviction relief within 20 days of judgment;
Importantly, the defendant “shall file a motion for postconviction … relief before a notice of appeal is filed unless the grounds for seeking relief are sufficiency of the evidence or issues previously raised.”
Later on in the process, “[a]fter the time for appeal or postconviction remedy provided in [section] 974.02 has expired,” the defendant may proceed under section 974.06, which permits a prisoner to move the sentencing court to “vacate, set aside or correct the sentence” on “the ground that the sentence was imposed in violation of the U.S. [C]onstitution.”
At first glance section 974.06 seems quite permissive. It states that the motion “is a part of the original criminal action” and “may be made at any time.”
All grounds for relief available to a person under this section must be raised in his or her original, supplemental or amended motion. Any ground finally adjudicated or not so raised, or knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence or in any other proceeding the person has taken to secure relief may not be the basis for a subsequent motion, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental or amended motion.
This bar on successive motions isn’t limited to successive section 974.06 motions. The Wisconsin Supreme Court has interpreted subsection (4) more broadly: a prisoner may not raise in a section 974.06 motion a federal constitutional issue that was raised or could have been raised in a postconviction motion under section 974.02 or on direct appeal. Escalona-Naranjo, 517 N.W.2d at 162. The upshot is that a defendant must raise all available claims for relief, including Strickland claims, at the earliest opportunity—that is, in a section 974.02 motion or on direct appeal. Id. at 162. Failure to do so bars relief under section 974.06 unless the defendant can establish a “sufficient reason” to excuse the default. Id. at 162–63.
The Wisconsin Supreme Court’s decision in Romero-Georgana builds on Allen and Escalona-Naranjo by elaborating the pleading threshold necessary to justify holding an evidentiary hearing on a prisoner’s claim that ineffective assistance of postconviction counsel is a sufficient reason to excuse his procedural default. The court held that “[t]o move beyond the initial prerequisites of
The “why” requirement is particularly relevant here. To adequately allege that ineffective assistance of postconviction counsel qualifies as a “sufficient reason” to excuse a procedural default, a prisoner must allege why the claims he now wants to raise are “clearly stronger than the claims actually raised.” Id. at 683. Then the trial court can compare the new theories of trial counsel’s ineffectiveness relative to those theories that postconviction counsel already pursued. Id. at 679. Much like it did in Allen, the Wisconsin Supreme Court concluded in Romero-Georgana that the trial court correctly denied an evidentiary hearing because the prisoner failed to allege how and why the claim that he wanted to raise was clearly stronger than the claim that his postconviction counsel actually raised. Id. at 685–86.
To summarize, under
B. Independent and Adequate State Ground
With the legal background in place, we can return to the question whether the Wisconsin Court of Appeals “clearly and expressly” relied on a state procedural bar that is both “independent of the federal question and adequate to support the judgment.” Lee v. Foster, 750 F.3d 687, 693 (7th Cir. 2014) (quotation marks omitted). We conclude that it did.
“A state law ground is independent when the court actually relied on the procedural bar as an independent basis for its disposition of the case.” Thompkins v. Pfister, 698 F.3d 976, 986 (7th Cir. 2012) (quoting Kaczmarek v. Rednour, 627 F.3d 586, 592 (7th Cir. 2010)). There’s no ambiguity here about the basis of the state court’s decision: the Wisconsin Court of Appeals unequivocally relied on the Escalona-Naranjo procedural bar and Garcia’s failure to satisfy the Romero-Georgana pleading requirement. Garcia does not argue otherwise. The dispute centers on whether the rules announced in these two decisions are truly independent of the merits.
The district judge acknowledged that the Escalona-Naranjo bar is an independent procedural rule, but he suggested that Romero-Georgana—and in particular, the “clearly stronger” requirement—is really just a gloss on the Strickland framework for claims of ineffective assistance of counsel. This reflects a misunderstanding of Wisconsin’s postconviction procedures. The Romero-Georgana pleading requirement implements the Escalona-Naranjo procedural regime.
Garcia proceeds under the same basic misunderstanding, claiming that the Wisconsin Court of Appeals thought that Romero-Georgana “somehow triggered” the Escalona-Naranjo bar. That has it backward. The baseline under
Garcia also argues that Romero-Georgana’s pleading standard is too entangled with the merits of his federal claims to be an independent basis for the state court’s decision. We rejected a similar argument in Triplett, an analogous case that addressed Wisconsin’s procedural regime for postconviction motions seeking to withdraw a guilty plea based on ineffective assistance of counsel. Triplett, 996 F.3d at 829–30. In Triplett the Wisconsin Court of Appeals had affirmed the denial of the defendant’s ineffectiveness claim because he failed to satisfy the pleading requirement established in State v. Bentley, 548 N.W.2d 50, 55 (Wis. 1996), for postconviction plea-withdrawal motions based on ineffective assistance of counsel. Triplett, 996 F.3d at 829–30. We concluded that the federal claim was procedurally defaulted because the state court of appeals “focused entirely on the adequacy of Triplett’s pleading; nowhere is there a finding as to the merits of his ineffectiveness claim.” Id. at 830.
The same is true here. Indeed, the Romero-Georgana pleading rule rests in part on the pleading requirement announced in Bentley. See Romero-Georgana, 849 N.W.2d at 678. Here, as in Triplett, the state court of appeals focused
The court’s reliance on Escalona-Naranjo and Romero-Georgana was also “adequate” to support its judgment. Adequacy in this context requires that the state-law ground be “firmly established and regularly followed” and not applied in a way that imposes “novel and unforeseeable requirements without fair or substantial support in prior state law” or “discriminate[s] against claims of federal rights.” Clemons v. Pfister, 845 F.3d 816, 820 (7th Cir. 2017) (quotation marks omitted) (alteration in original). We have little difficulty concluding that Escalona-Naranjo and Romero-Georgana are “firmly established and regularly followed” rules of Wisconsin postconviction procedure. The bar on successive postconviction motions is embedded in
C. Cause and Prejudice
Garcia’s default precludes federal habeas review of his new Strickland claims unless he can establish cause for and prejudice from the default. Thompkins, 698 F.3d at 986. Cause requires a showing of “some type of external impediment” that prevented him from presenting his claims. Id. at 987 (quotation marks omitted). Garcia has not identified any external impediment that prevented him from satisfying the Romero-Georgana pleading threshold necessary to obtain relief from the Escalona-Naranjo bar. He simply repeats his complaints about his postconviction counsel. But errors by counsel in the first round of postconviction proceedings cannot serve as cause to excuse Garcia’s own default in the second.3
Even if we assume for the sake of argument that Garcia had identified a cause external to him to excuse his default, he has not established prejudice. Looking through postconviction counsel’s performance to the alleged errors of trial counsel, we do not see any reasonable probability of a different result had trial counsel avoided the subject of Garcia’s prior arrest or objected to the parts of the prosecutor’s closing argument that he now identifies as problematic.
On this point we agree with the district judge: the evidence of Garcia’s guilt was overwhelming. Carlos and Luis identified him as the shooter. Hilda testified about his jealousy, stalking, and threats, which established a compelling motive for the crimes. Uncontradicted physical evidence corroborated the eyewitness identifications—most notably, the forensic examiner’s testimony about the match between the handgun found under Garcia’s porch, the bullet recovered from Carlos’s chest, the bullets recovered from Luis’s car at the scene, and the empty casings in Garcia’s
Garcia offers no meaningful response to this mountain of evidence against him. He focuses on the prejudicial effect of the prior-arrest evidence and the prosecutor’s remarks in the abstract and makes little effort to examine whether the alleged errors by trial counsel were prejudicial on the specific facts of this case.
Because the state appellate court’s decision rests on an independent and adequate state-law ground, Garcia’s Strickland claims regarding his trial counsel’s performance are defaulted. He has not established cause for and prejudice from the default, so federal merits review of the claims is foreclosed.
AFFIRMED