CHRISTOPHER R. GISH, Petitioner-Appellant, v. RANDALL HEPP, Warden, Respondent-Appellee.
No. 19-1476
United States Court of Appeals For the Seventh Circuit
ARGUED NOVEMBER 7, 2019 — DECIDED APRIL 3, 2020
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:15-cv-730 — James D. Peterson, Chief Judge.
SCUDDER, Circuit Judge. Christopher Gish pleaded guilty to first-degree reckless homicide in Wisconsin state court for killing his longtime girlfriend and the mother of his children. He appealed, claiming that his trial counsel provided ineffective assistance by failing to investigate an involuntary intoxication defense. Police found Gish disoriented and delirious on the night of the killing, and he claimed that rare side effects from taking prescription Xanax affected his ability to
I
A
Early in the morning on July 14, 2012, Wisconsin police found Christopher Gish soaking wet, unable to answer questions, and wandering in an unsteady manner on railroad tracks near the Milwaukee airport. The officers took Gish to the hospital, where he told paramedics that he had blacked out. He then proceeded to make a series of nonsensical statements suggesting that he did not understand his whereabouts. At one point, for instance, Gish stated that “all I saw was red” and “you are in my bedroom, why are you in my room?” Upon ascertaining Gish‘s home address, the police entered and found his longtime girlfriend and the mother of his children, Margaret Litwicki, stabbed to death in a bedroom.
Once Gish‘s condition stabilized, he agreed to an interview with the police. A videotape showed that Gish gained lucidity over the course of the questioning. Initially Gish denied any memory of the previous night, but later in the interview he confessed to stabbing Litwicki multiple times in his bedroom. He said he attacked Litwicki because he suspected
Wisconsin authorities charged Gish with first-degree intentional homicide, which carries a mandatory sentence of life imprisonment. See
Opland-Dobs researched the effects of Lamictal, but not Xanax—a choice he later said he could not explain. He ultimately determined that any Lamictal-based defense would be futile and so advised Gish. When prosecutors later offered to accept a plea to first-degree reckless homicide, which carries a maximum sentence of 60 years, see
B
With the assistance of new counsel, Gish filed a direct appeal in Wisconsin state court. Counsel then filed what Wisconsin law calls a “no-merit report“—the functional equivalent of an Anders brief in federal criminal practice—representing that any appeal would be meritless and requesting permission to withdraw as Gish‘s appointed lawyer. See
Gish responded to the no-merit report by insisting that he had a non-frivolous basis for appeal. He claimed that his trial counsel, Opland-Dobs, provided ineffective assistance by failing to pursue the affirmative defense of involuntary intoxication, a complete defense to homicide under Wisconsin law. Gish emphasized that he told Opland-Dobs all about the Xanax he had taken before the homicide and suggested that the medication may have affected his ability to discern right from wrong. See
Appellate counsel responded by emphasizing that Gish never once suggested to his trial counsel, Opland-Dobs, that either the Xanax or Lamictal so affected his mental state as to prevent him from understanding the wrongfulness of his conduct. So, appellate counsel put it, “there wasn‘t anything to investigate.”
The Wisconsin Court of Appeals evaluated Gish‘s ineffective assistance claim under the familiar standards of Strickland v. Washington, 466 U.S. 668 (1984). Gish had to show that Opland-Dobs‘s performance “fell below an objective standard of reasonableness,” id. at 688, and resulted in prejudice, meaning that there was “a reasonable probability that, but for counsel‘s
The Wisconsin court denied relief, concluding that any contention of ineffective assistance was so lacking—having no “arguable merit“—that Gish could not even clear Strickland‘s first hurdle of showing that Opland-Dobs‘s performance was deficient. Indeed, the court wholesale adopted Gish‘s appellate counsel‘s version of events, disregarding Gish‘s allegations in their entirety and even refusing to consider the police reports and other documents Gish submitted in support of his ineffective assistance claim. In effect, then, the Wisconsin court affirmed Gish‘s conviction for the same reason suggested by his appellate counsel—“there wasn‘t anything to investigate.”
The Wisconsin Supreme Court denied review, and Gish then turned his attention to securing relief in federal court.
II
A
Invoking
Although ultimately denying relief, the district court did so only after holding an evidentiary hearing, taking
B
Several witnesses testified at the evidentiary hearing. Gish testified on his own behalf and called pharmacology consultant James T. O‘Donnell and his trial counsel Nathan Opland-Dobs. For its part, the state called Kayla Neuman, a chemist in the toxicology section of the Wisconsin State Laboratory of Hygiene, and Detective Brent Hart, who had interviewed Gish the morning he was apprehended.
The district court heard conflicting evidence about whether Gish took Xanax on the day he killed Litwicki. On the one hand, Gish testified that he told Opland-Dobs he had taken both Xanax and Lamictal on the day of the homicide. But Gish plainly stated in the interview with Detective Hart the morning of the homicide that he had last taken Xanax “[a] couple days” before, which, given the half-life of Xanax,
The district court also heard expert testimony about the possible effects of Xanax. Both parties’ experts agreed that Xanax can trigger hallucinations, agitation, rage, and hostile behavior. The state‘s expert, Neuman, added that mixing Xanax with Lamictal can amplify these effects. Gish‘s expert, O‘Donnell, testified that the police finding Gish in a temporary delusional state was more consistent with Xanax intoxication than with the effects of mental illness. O‘Donnell added that Gish could not appreciate the criminality of his conduct, but the district court found that conclusion speculative, backed by no medical evidence, and therefore not credible.
Finally, the district court heard from Gish and Opland-Dobs regarding their plea discussions. For the most part, their accounts aligned: Gish testified that he had asked Opland-Dobs to consider defenses based on Xanax and Lamictal. Opland-Dobs did not dispute that aspect of Gish‘s testimony, admitted that he failed to investigate Xanax, and expressed regret for that failure. He conceded that, given the evidence he had available to him in representing Gish, investigating Xanax would have been “appropriate” and he “didn‘t give it enough consideration.” Opland-Dobs offered no justification for this failure, saying, “[w]hy I didn‘t follow up on the Xanax, I can‘t explain,” because ignoring that path “doesn‘t seem like what I should have done.”
C
Aided by the evidentiary hearing, the district court proceeded to the merits of Gish‘s ineffective assistance claim. The court made quick work of Strickland‘s deficient performance prong by assuming that Opland-Dobs‘s complete and admitted failure to evaluate a Xanax-based intoxication defense was unreasonable. Moving to Strickland‘s prejudice prong, the court concluded that Gish fell short of showing he would have forgone the plea deal and gone to trial had Opland-Dobs pursued the defense. While Gish so testified, the district court was not willing to credit that testimony over other evidence pointing in the opposite direction.
The district court placed particular emphasis on Gish‘s statements to Detective Hart not only that he had last taken Xanax “[a] couple days” before the homicide, but also that he did not regret killing Litwicki in light of her alleged infidelity. The district judge likewise highlighted Gish‘s statement to the nurse that he had sold his prescriptions—a fact corroborated by the police‘s failure to find any trace of Xanax in Gish‘s
Gish now appeals.
III
A
We begin with the decision of the Wisconsin Court of Appeals, the last state court to consider (at least a portion of) Gish‘s ineffective assistance claim on the merits in a reasoned opinion. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). Gish needs to show, as the district court recognized, that the Wisconsin court‘s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
The Wisconsin Court of Appeals rejected Gish‘s ineffective assistance claim on the ground that “there wasn‘t anything [for his trial counsel, Nathan Opland-Dobs] to investigate.” With nothing to investigate, the reasoning ran, Opland-Dobs
The district court was right to call the Wisconsin court‘s decision an unreasonable application of Strickland‘s deficient performance prong. Return to the state court‘s insistence that Gish‘s claim lacked merit because (and only because) he never put his evidence before the trial court. That reasoning fails to meet the claim Gish raised on direct appeal—ineffective assistance of his trial counsel, Nathan Opland-Dobs. As the Wisconsin court would have it, Gish—while being advised by Opland-Dobs—somehow and some way (and apparently on his own) had to put before the trial court evidence to support a claim that Opland-Dobs had violated the Sixth Amendment by not pursuing an involuntary intoxication defense. Yet the trial record lacked evidence of Gish‘s ineffective assistance claim precisely because, by the very terms of the claim, Opland-Dobs‘s deficient performance occurred during the trial court proceedings. Gish, in short, necessarily needed to support his claim with evidence outside the trial record, for there was no other way he could have demonstrated his ineffective assistance claim or rebutted his appellate counsel‘s view (as reflected in the no-merit report) that the claim was frivolous.
This is not the first time we have found fault with the exact reasoning the Wisconsin Court of Appeals employed in rejecting Gish‘s ineffective assistance claim. In Davis v. Lambert, we explained that “it would defy logic to deny [a state habeas
We chart the same course here and have little difficulty concluding that the Wisconsin Court of Appeals‘s denial of Gish‘s ineffective assistance claim rooted itself in an “unreasonable application” of Strickland‘s deficient performance prong as well as an “unreasonable determination of the facts in light of the evidence [Gish] presented in the State court proceeding.”
B
In considering Gish‘s claim, we need say very little on Strickland‘s first prong. Opland-Dobs testified in the district court and admitted in no uncertain terms that he never assessed a Xanax-based involuntary intoxication defense. We can assume this admitted failure is enough for Gish to show deficient performance. See Pole v. Randolph, 570 F.3d 922, 943 (7th Cir. 2009) (opting to “assume that counsel‘s performance was deficient and move on to the second part of the analysis” because the petitioner could not show prejudice).
This brings us to the primary issue on appeal: whether Opland-Dobs‘s failure to pursue an involuntary intoxication defense prejudiced Gish. Our review proceeds de novo (and not under the deferential standard of
The controlling substantive standard comes from Hill v. Lockhart, 474 U.S. 52 (1985). The Court decided Hill one year
The standards announced in Hill map directly onto Gish‘s claim and put him under an obligation to make a twofold showing. First, Gish had to show that Opland-Dobs performed deficiently in failing to investigate the Xanax-based defense. Second, Gish had to demonstrate that there existed a reasonable probability that, had his counsel investigated the defense, he would have rejected the plea offer and proceeded to trial with a likelihood of succeeding on the defense. See id. at 59.
Gish urges a slightly different standard—one informed not only by Hill but even more by the Supreme Court‘s decision in Lee v. United States, 137 S. Ct. 1958 (2017). Like Gish, Jae Lee pleaded guilty after his trial counsel advised him that going to trial would be risky, and following a conviction, result in more jail time. See id. at 1963. But Lee had a consideration other than prison top of mind. He told his attorney he
The Supreme Court agreed. Usually a defendant “without any viable defense will be highly likely to lose at trial,” and when “facing such long odds will rarely be able to show prejudice from accepting a guilty plea that offers him a better resolution than would be likely after trial.” id. at 1966. For Lee, however, “avoiding deportation was the determinative factor“—the variable of “paramount importance“—in deciding whether to plead guilty or go to trial, while the time he spent in prison was relatively inconsequential to his litigation strategy. id. at 1967–69. Lee‘s counsel eliminated any doubt on the point, testifying that Lee would have gone to trial had he been properly informed that deportation would follow as automatic consequence of pleading guilty. See id. at 1967–68.
All of this led the Court to conclude that Lee “would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a ‘Hail Mary’ at trial.” id. at 1967. Lee‘s laser focus on averting deportation, the Court underscored, showed that his counsel‘s errors prejudiced him. id. at 1967–68.
We disagree and see Lee as reinforcing, not transforming, Hill. In Lee the Court took care to observe that defendants without a viable defense would “rarely” be able to show prejudice from a guilty plea that reduces their sentencing exposure. See id. at 1966. Put most simply, the certainty of less jail time creates an incentive to avoid the longer shot of an acquittal at trial. See id. Lee was a rare exception: from Jae Lee‘s perspective, the consequences of pleading guilty and going to trial were “similarly dire“—he would be deported either way—so he was willing to bet on “even the smallest chance of success at trial.” id. at 1966–67. Properly informed, Lee would have found nothing attractive about a plea offer that reduced his prison time (a relatively minor concern for him) but guaranteed his deportation—the outcome he most wanted to avoid.
Gish‘s case is much different. The district court found that, unlike Jae Lee, Christopher Gish decided to plead guilty “based primarily on the prospects of success at trial.” Gish all but said so himself, testifying in the district court that he pleaded guilty because Opland-Dobs informed him that he had no chance of winning at trial. The district court further found that, in contrast with Lee‘s persistent concern about deportation, nothing in Gish‘s communications with Opland-Dobs indicated that some factor other than the prospect of success would have motivated Gish to go to trial.
On the record before us, then, we decline Gish‘s invitation to deviate from the prejudice inquiry the Supreme Court articulated in Hill. The proper question therefore is whether there was a reasonable probability that Gish would have gone to trial on his affirmative defense, with the answer “depend[ing] largely on whether the affirmative defense likely would have succeeded at trial.” Hill, 474 U.S. at 59.
C
In the end, we agree with the district court that Gish‘s Xanax-based involuntary intoxication defense had no reasonable prospect of success at trial. Even assuming he could marshal the evidence required to get a jury instruction on the defense, we see no likelihood the defense would have persuaded a jury that Xanax rendered him unable to appreciate the difference between right and wrong at the time he stabbed Litwicki to death. Our confidence in this conclusion emerges from the detailed facts the jury would have learned:
Gish told a hospital nurse that he sold his pills and no longer had any. - Gish told Detective Hart that he last took Xanax “[a] couple days” before the homicide.
- The police who searched Gish‘s home found no trace of Xanax.
- Even if Gish had taken Xanax the day of the homicide, it was unlikely that he was the rare patient who would have experienced effects so extreme as to prevent him from appreciating the wrongfulness of his conduct. The district court found that the little evidence Gish offered on that front (from his expert witness, James O‘Donnell) lacked credibility.
- In his interview with Detective Hart, Gish confessed to how he went about killing and abusing Litwicki—statements revealing an awareness of his own conduct.
- Gish also offered a clear motive for the crime—that he suspected Litwicki was cheating on him and would take his kids away.
The combined weight of these facts would have left Gish with no likely prospect of prevailing on an involuntary intoxication defense and defeating the state‘s robust case against him. By extension, then, and especially given Gish‘s focus on offering a defense with a chance of succeeding, we have difficulty believing that Gish would have proceeded to trial and run the substantial risk of being convicted and receiving a mandatory sentence of life in prison. See Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (emphasizing that a petitioner
Because Gish cannot show prejudice from his trial counsel‘s errors, we agree with the district court that he is not entitled to habeas relief on his ineffective assistance claim. We therefore AFFIRM.