JONATHON ADEYANJU, Petitioner-Appellant, v. LANCE WIERSMA, Administrator, Division of Community Corrections, Respondent-Appellee.
No. 20-1876
United States Court of Appeals For the Seventh Circuit
ARGUED MAY 12, 2021 — DECIDED AUGUST 31, 2021
Before FLAUM, HAMILTON, and BRENNAN, Circuit Judges.
Appeal from the United States District Court for the Western District of Wisconsin. No. 11-cv-81-wmc — William M. Conley, Judge.
His counsel was ineffective, Adeyanju submits, because he should have requested a jury instruction on a lesser-included offense to attempted homicide—first-degree recklessly endangering safety. Then, the jury could have found that he was among the shooters but did not intend to kill anyone. But the jury already had that option with the endangering safety by use of a firearm charges, which it chose not to take. Because Adeyanju fails to show that he was prejudiced by counsel’s purported error, we affirm the district court’s denial of his
I
A
On the evening of August 9, 2005, a group of men fired a hail of bullets into a crowd of rival gang members gathered outside a garage in Oregon, Wisconsin. There were no fatalities, but three of the victims suffered gun-shot wounds (one to the hand and thigh, one to the thigh, and one to the groin). The plot, it appears, was a preemptive strike: the shooters wanted to prevent retaliation against members of their own gang, including Adeyanju’s brother, who had robbed members of the rival gang.
Adeyanju was charged as one of the shooters with three counts each of attempted first-degree intentional homicide and of endangering safety by use of a firearm. The mens rea requirement differs for these two crimes: attempted homicide requires
At trial, defense counsel argued principally that Adeyanju was not among the shooters. He did not offer a specific alibi, and Adeyanju exercised his right not to testify. Instead, counsel highlighted that no physical evidence tied Adeyanju to the shooting. In addition, he attempted to cast doubt on the State’s witnesses who placed Adeyanju on the scene, noting confusion about the number of shooters and the witnesses’ purported motivations to lie.
Adeyanju’s counsel also presented an alternative defense: the shooters did not intend to kill their rivals, but rather simply to scare them. In support of this theory, counsel elicited testimony on cross-examination that some of the participants did not intend to kill anyone. Counsel argued to the jury in closing that because the shooters did not intend to kill, the shooting was “cover[ed]” by the endangering safety by use of a firearm charges, but not the attempted homicide charges.
Counsel drafted a jury instruction on a lesser-included offense for attempted first-degree homicide—first-degree recklessly endangering safety,
Adeyanju moved for state postconviction relief, arguing his trial counsel was ineffective for failing to request the first-degree recklessly endangering safety jury instruction. At an evidentiary hearing, his counsel testified he felt the defense’s strategies were limited by his client’s decisions not to accept a plea offer and not to testify. Heading into trial, counsel thought Adeyanju was likely to be convicted on all counts. Counsel said his client never insisted on an “all-or-nothing” defense. He did not recall discussing the possibility of a lesser-included offense instruction with his client, but said if he had, he would have remembered. The lesser-included offense instruction would have been consistent with his alternative lack-of-intent defense theory. Counsel suggested he had no strategic reason for not requesting the instruction; rather, he said he “didn’t think of it” during trial.
The state court denied post-conviction relief, concluding that counsel had been effective because there was “no basis” to request a lesser-included offense. First, the court explained that under Wisconsin law, “[i]f a ‘reasonable view’ of the evidence is sufficient to support a guilty verdict beyond a reasonable doubt for the greater and lesser-included offenses, then no lesser-included instruction need be given.” State v. Weeks, 477 N.W.2d 642, 645–46 (Wis. Ct. App. 1991) (quoting State v. Bergenthal, 178 N.W.2d 16, 21 (1970), cert. denied, 402 U.S. 972 (1971)). Further referencing Weeks, the state court noted that “intent to kill” within the definition of first-degree homicide “means either that the actor ‘has a purpose’” to take the life of another human being “or is aware that his or her conduct is practically certain to cause that result.” Id. at 647 (Fine, J., concurring) (emphasis removed) (quoting
The court then highlighted that, as part of a “concerted effort” in which Adeyanju was a “willing participant,” “five or six people, all facing in the same direction, all firing their guns at once” shot a “[m]inimum of 33 rounds” toward the rival gang’s garage. The shooters also made extensive efforts to avoid getting caught, including rubbing the ammunition with alcohol prior to loading each weapon to make sure that no fingerprints could be found, selecting some firearms that would not leave casings, and wearing “virtually identical … black T-shirts.” Thus, the court concluded, the record did not reveal evidence that would cast a reasonable doubt on any element of attempted first-degree homicide, including doubt on the element of intent.
The Wisconsin Court of Appeals affirmed on different grounds. State v. Adeyanju, 773 N.W. 2d 225, 2009 WL 2047271 (Wis. Ct. App. July 16, 2009) (per curiam). Also evaluating Adeyanju’s claim under the Strickland framework, the appeals court concluded it was reasonable for counsel not to request a lesser-included offense instruction because the instruction may have harmed Adeyanju. Id. at *3–4. If the jury found that Adeyanju did not have the requisite intent for attempted homicide, it would have had to acquit him of that crime. Id. at *3. But if the lesser-included instruction were introduced, the jury could have reached a guilty verdict on it. Id. Therefore, the court concluded, it was objectively reasonable “for
The Wisconsin Supreme Court denied review, and Adeyanju did not seek certiorari in the Supreme Court of the United States. Instead, he petitioned for federal habeas relief under
II
We review de novo the district court’s denial of Adeyanju’s petition for a writ of habeas corpus. See Schmidt v. Foster, 911 F.3d 469, 476 (7th Cir. 2018) (en banc). “Federal habeas review … exists as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.’” Woods v. Donald, 575 U.S. 312, 316–17 (2015) (quoting Harrington v. Richter, 562 U.S. 86, 102–03 (2011)). Relief is rarely available. We may grant it only to a state prisoner who is “in custody in violation of the Constitution or laws or treaties of the United States.”
Before us, Adeyanju continues to press, as he did in state court, that he received ineffective assistance because his trial counsel did not propose a jury instruction on the lesser-included offense of recklessly endangering safety. To prevail, Adeyanju must show under Strickland v. Washington, 466 U.S. 668 (1984), and subsequent authority, that his trial counsel provided ineffective assistance. Strickland requires a showing of both deficient performance and prejudice resulting from it. Id. at 687. Counsel performance fails to meet constitutional standards only when it falls “below an objective standard of reasonableness” and it prejudices a petitioner only if “there is
We turn first to whether Adeyanju was prejudiced by his trial counsel’s performance. The parties do not debate the standard of review on this prong—they agree that the Wisconsin Court of Appeals addressed only Adeyanju’s counsel’s performance, so they ask us to review de novo the issue of prejudice. “In these circumstances, the Supreme Court has instructed, we treat the two prongs of Strickland as divisible and review the prejudice prong by taking our own fresh look at the evidentiary record.” Gish v. Hepp, 955 F.3d 597, 605 (7th Cir. 2020); see also Rompilla v. Beard, 545 U.S. 374, 390 (2005) (applying de novo review to the issue of prejudice where the state court addressed only counsel’s performance under Strickland). We therefore presume without deciding that the Antiterrorism and Effective Death Penalty Act of 1996’s deferential standard of review under § 2254(d) does not apply.
Adeyanju argues there was a reasonable probability that at least one juror would find that he and the other shooters acted recklessly, rather than with intent to kill the occupants of the garage. Citing Keeble v. United States, 412 U.S. 205, 212 (1973), Adeyanju maintains that when a defendant is “plainly guilty of some offense” but “one of the elements of the offense charged remains in doubt,” and the jury is given the stark choice to acquit or convict on that offense, “the jury is likely to resolve its doubts in favor of conviction.” He compares this case to United States ex rel. Barnard v. Lane, 819 F.2d 798, 803-04 (7th Cir. 1987), in which the defendant’s counsel provided ineffective assistance because he failed to ask for justification or manslaughter jury instructions in addition to instructions on first-degree homicide. That omission left the jury with no way to reach a finding of reduced culpability—Lane’s only viable defense after he admitted to shooting the victim but explained he had been carrying a firearm due to fear of the victim. Id. This case is like Lane, Adeyanju insists, as without the lesser-included offense instruction, the jury likely convicted him of attempted homicide—even if it had doubts about whether the shooters intended to kill their gang rivals—because the jury knew that shooting toward an occupied garage was some sort of crime.
This case differs from Lane, though, in important ways. Here, the jury could have reached a verdict consistent with the reduced-culpability theory while still finding Adeyanju guilty of some crime by acquitting him of the attempted homicide charges but convicting him of endangering safety by use of a firearm. Like recklessly endangering safety, endangering safety by use of a firearm does not require proof that the defendant intended to kill anyone. The former involves “recklessly endanger[ing] another’s safety under circumstances which show utter disregard for human life,”
Our conclusion on this point is strengthened by the state court’s finding that overwhelming evidence supported the shooters’ intent to kill their rivals. See McAfee v. Thurmer, 589 F.3d 353, 357 (7th Cir. 2009) (defendant not prejudiced by failure to request lesser-included offense instruction where evidence was “overwhelming”).1 As that court detailed, the
Adeyanju also argues that the unsubmitted jury instruction might have changed the result of his trial because some of the other shooters who testified at his trial said they did not intend to kill anyone. He highlights that under cross-examination two of the shooters stated they did not intend to kill anyone. Lucas Rodriguez said he did not “intend to kill somebody,” but rather just wanted “[t]o get [the gang rivals] scared” so that “they would leave [Rodriguez] alone.” And
But that contention is not persuasive because Adeyanju was charged and found guilty as a party to a crime under
The State also elicited plenty of testimony contradicting that which Adeyanju highlights. When questioned by the State, Rodriguez testified that the overall plan for the shooting was “to get” the gang rivals “before they get us,” explaining that “get them” meant to “[t]ry to kill them.” Rodriguez contradicted his earlier testimony by saying that killing someone had “passed [his] mind” and that it was “[s]ort of” his intention to kill the people in the garage. He further admitted that he and the others were shooting “[i]n the garage towards the people” and he said he did not really care if he hit someone. He also testified that when he asked Adeyanju what he had
So under de novo review, Adeyanju has failed to show a reasonable probability that, but for counsel’s failure to propose a lesser-included offense instruction, his trial would have come out differently. As the state court said, no one died during this shooting “but for the grace of God.” The jury was presented with the evidence described above, and Adeyanju’s counsel expressly requested that the jury find that the shooters lacked intent to kill and therefore were guilty of only the lesser offense of endangering safety by use of a firearm. Instead, the jury found Adeyanju and the other participants guilty of all charges, including attempted homicide—meaning the jury concluded that an intent to kill was present. Not only was a compromise available for the jury on the endangering safety by use of a firearm counts, but there is only a small difference between the crime on which the jury was instructed and the instruction Adeyanju points to for recklessly endangering safety. That difference is highly unlikely to have had a “reasonable probability” of changing the trial’s outcome to benefit Adeyanju, as Strickland requires.
∗ ∗ ∗
When the petitioner’s arguments concerning the prejudice prong fail, as here, we need not address whether counsel’s performance was deficient. Thill, 996 F.3d at 476–77 (“noting that ‘it is unnecessary and undesirable for [a habeas court] to consider the attorney performance facet of the analysis’ when
For these reasons, we AFFIRM the denial of Adeyanju’s § 2254 petition.