ROBERT D. LEE-KENDRICK, Petitioner-Appellant, v. SCOTT ECKSTEIN, Respondent-Appellee.
No. 21-1044
United States Court of Appeals For the Seventh Circuit
Argued March 31, 2022 — Decided June 28, 2022
Before MANION, HAMILTON, and BRENNAN, Circuit Judges.
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 15-CV-1117 — Nancy Joseph, Magistrate Judge.
I
Robert Lee-Kendrick, a recording artist and music producer, bought a mansion in the exclusive Milwaukee suburb of River Hills. Most weekends and in the summer, some of his children and many of their friends stayed at the seven-bedroom, seven-bathroom residence which featured a pool and a recording studio.
Two girls reported that while they spent time at his house, Lee-Kendrick repeatedly sexually assaulted them, and that he did so for years there and at other locations. A third girl also said he assaulted her during a 15th birthday party for one of the other victims.
Lee-Kendrick was charged in Milwaukee County Circuit Court with multiple counts of sexual assault of three girls under the age of sixteen: his biological daughter; his girlfriend’s daughter, A.W.; and a friend of A.W. Initially, he pleaded no contest to the charges, but he was later allowed to withdraw those pleas and the case went to jury trial in June 2011.
Each girl testified she was sexually assaulted by Lee-Kendrick, which he denied. He said he provided the children with things he never had growing up, but reflected that perhaps he had become too lenient. The girls were getting out of control, Lee-Kendrick said, and their accusations arose only after he started limiting activities and taking away their cell phones and allowances. There was no physical evidence linking Lee-Kendrick to the charges, so the trial outcome turned
By newly appointed postconviction counsel, Lee-Kendrick filed post-trial motions, including one for a new trial. He argued that his trial counsel provided ineffective assistance by not objecting to certain prejudicial cross-examination. The trial court denied the motions, the Wisconsin Court of Appeals affirmed, and a petition for review to the Wisconsin Supreme Court was denied.
Next, Lee-Kendrick, acting pro se, sought relief in state trial court under Wisconsin’s postconviction procedure.
The Wisconsin Court of Appeals affirmed. Like the state trial court, the state appeals court relied on Wisconsin law, which provides the defendant must show that the claims postconviction counsel should have raised were clearly stronger than those that were raised. State v. Romero-Georgana, 849 N.W.2d 668, 679 (Wis. 2014). Although Lee-Kendrick’s motion correctly identified the “clearly stronger” test, his request did not apply this measure by engaging in that comparison. The state appeals court also went beyond this omission and, like the state trial court, concluded that Lee-Kendrick’s claims failed on their merits.
Lee-Kendrick claimed he was prejudiced when his trial counsel failed to call Keeler as a witness. But the state appeals court reasoned that the attorney’s decision was not prejudicial because Keeler had no direct knowledge of the sexual assaults. Further, Keeler’s testimony would have been inconsistent with the defense theory that A.W. fabricated allegations in a dispute about Lee-Kendrick confiscating the victims’ possessions. The Wisconsin Supreme Court denied Lee-Kendrick’s petition to review that decision.
Lee-Kendrick then moved to federal court and petitioned for habeas relief under
II
“When reviewing a district court’s ruling on a habeas corpus petition, we review the district court’s factual findings for clear error and rulings on issues of law de novo.” Stern v. Meisner, 812 F.3d 606, 609 (7th Cir. 2016). “We review questions of procedural default de novo.” Garcia v. Cromwell, 28 F.4th 764, 771 (7th Cir. 2022).
When our court’s review of this case began, we expanded the certificate of appealability and asked the parties to address two procedural issues. The first is whether
A. 28 U.S.C. § 2254(i) and an ineffective assistance of counsel claim under WIS. STAT. § 974.02
The first question presents an interplay between the AEDPA and Wisconsin’s specific statutory procedure for postconviction review of ineffective assistance of counsel. We look to state law to determine which state postconviction proceedings are collateral and which are not. See Carey v. Saffold, 536 U.S. 214, 223 (2002) (“for purposes of applying a federal statute that interacts with state procedural rules, we look to how a state procedure functions“).
The answer to this first question turns on whether a claim is made on collateral or direct review. If on collateral review, then the plain text of
“In Wisconsin’s postconviction process, an offender’s initial step in challenging a sentence is a postconviction motion filed under
We have yet to decide this first question in a published decision. But in an unpublished order, this court understood that a
Under Wisconsin’s postconviction statutory protocol, a claim of ineffective assistance of counsel under
B. Procedural Default
The second question on which this court issued a certificate of appealability concerns Lee-Kendrick’s claim that his postconviction counsel should have challenged the effectiveness of trial counsel for failing to call Keeler to impeach A.W. The State contends this claim is procedurally defaulted because the denial of Lee-Kendrick’s postconviction motion by the Wisconsin Court of Appeals rested on an adequate and independent state-law ground—specifically, the procedural bar recognized in Escalona-Naranjo.
“[A] federal court may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2064 (2017); Triplett v. McDermott, 996 F.3d 825, 829 (7th Cir. 2021). For a procedural default, a state appeals court must have “clearly and expressly” relied on that state procedural bar. Lee v. Foster, 750 F.3d 687, 693 (7th Cir. 2014).
Adequacy 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.” Garcia, 28 F.4th at 775 (quoting Clemons v. Pfister, 845 F.3d 816, 820 (7th Cir. 2017)). “A state law ground is independent when the court actually relied on the procedural bar as an independent basis for its
“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.” Id. at 771 (quoting 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.‘” Id. (quoting Johnson v. Thurmer, 624 F.3d 786, 789 (7th Cir. 2010)).
Here, the district court concluded that Lee-Kendrick’s ineffective assistance of postconviction counsel claims were not procedurally defaulted. Escalona-Naranjo’s bar has been recognized as an adequate and independent state-law ground for procedural default, that court acknowledged. But the district court read Page, 343 F.3d at 909, as ruling that Escalona-Naranjo does not preclude federal review of a defendant’s claim that postconviction counsel was ineffective for failing to raise deficiencies in trial counsel’s representation. The parties dispute the scope of this court’s rulings in Page, and thus whether the district court could correctly rely on that decision to conclude that procedural default does not bar Lee-Kendrick’s claims of ineffective assistance of postconviction counsel.
But that debate falls to the side after Garcia. There, we recently considered this exact question of whether the Escalona-Naranjo requirement—that claims for postconviction relief must first be raised on direct appeal—can be an adequate and independent state-law ground for procedural default. In Garcia, this court reasoned:
[U]nder section 974.06(4) and Escalona-Naranjo, all available claims for postconviction relief must be raised in a first postconviction motion under section 974.02 or on direct appeal. The statute preserves a narrow gateway to merits review of a defaulted federal claim. To pass through it, a prisoner must establish a “sufficient reason” for not bringing the claim earlier. Ineffective assistance of postconviction counsel may be a sufficient reason, but [State v.] Allen [786 N.W.2d 124 (2010)] and [State v.] Romero-Georgana establish an additional procedural requirement—in the form of a special pleading burden—when a prisoner’s section 974.06 motion raises ineffective assistance of postconviction counsel as a reason to excuse his procedural default.
The state appeals court had 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 were adequate and independent state procedural grounds, this court ruled, so federal review was barred unless Garcia could establish cause for and prejudice from his default, which he did not. Id. at 767. Garcia thus stands for the proposition that the procedural bar of Escalona-Naranjo is an adequate and independent state-law ground that bars federal review.
The Wisconsin Court of Appeals decided that Lee-Kendrick’s claims were barred under the Escalona-Naranjo rule. The state appeals court “clearly and expressly” relied on
The state appeals court’s decision relying on Escalona-Naranjo rests on adequate and independent state-law grounds. We have previously recognized the adequacy of that case’s rule. Garcia, 28 F.4th at 775 (concluding Escalona-Naranjo is “firmly established and regularly followed” rule of Wisconsin postconviction procedure); see Whyte v. Winkleski, 34 F.4th 617, 624 (7th Cir. 2022); Perry v. McCaughtry, 308 F.3d 682, 690 (7th Cir. 2002) (this court “has recognized the Escalona-Naranjo rule as an adequate state ground“).
The rule is also an independent state-law ground. The state appeals court’s actual reliance on the rule did not depend entirely on the merits of any federal issue. See Rodriguez v. McAdory, 318 F.3d 733, 736 (7th Cir. 2003) (concluding state law procedural ruling is independent for federal habeas purposes unless it was “entirely dependent on the merits“). Rather, that reliance depended on Lee-Kendrick’s failure to sufficiently develop his claim of ineffective assistance of counsel on direct appeal. The state appeals court invoked the Escalona-Naranjo rule as an independent conclusion, although that court also ruled that Lee-Kendrick’s claims failed on the merits.
On this specific issue, then, we disagree with the district court’s conclusion. The claims not raised in Lee-Kendrick’s direct appeal were ultimately procedurally barred by Escalona-Naranjo, which rests on adequate and independent state-law
An exception exists to this bar, though, if the defendant “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991); Davila, 137 S. Ct. at 2064–65. “‘Cause’ is an objective factor external to the defense that impeded the presentation of the claim to the state courts.” Crutchfield v. Dennison, 910 F.3d 968, 973 (7th Cir. 2018) (quoting Davila, 137 S. Ct. at 2065). “A factor is ‘external to the defense’ only if it ‘cannot fairly be attributed to’ the prisoner.” Id. (quoting Coleman, 501 U.S. at 753); see Garcia, 28 F.4th at 775.
We note first that Lee-Kendrick brought his
“An error amounting to constitutionally ineffective assistance is ‘imputed to the State’ and is therefore external to the prisoner.” Davila, 137 S. Ct. at 2065 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Lee-Kendrick argues his trial counsel was ineffective for failing to call witness Keeler, and that his postconviction counsel’s failure to raise that claim in the state
Whether an attorney’s ineffective assistance is sufficient to overcome a procedural default is evaluated under the familiar test of deficient performance and prejudice from Strickland. Coleman, 501 U.S. at 752. For a claim of ineffective assistance of appellate counsel, the deficient performance requirement is not satisfied unless the unraised claim “was plainly stronger than those actually presented to the appellate court.” Davila, 137 S. Ct. at 2067. The same “clearly stronger” standard applies for the claim that postconviction counsel was ineffective in selecting the issues for appeal. Romero-Georgana, 849 N.W.2d at 679.
Lee-Kendrick submits he meets this standard because witness Keeler was not called, even though all agree the case turned on the believability of the witnesses. To Lee-Kendrick, that makes his claim “clearly stronger” than the claims his postconviction counsel raised on direct appeal that his trial counsel was constitutionally ineffective for:
- failing to object to the State questioning Lee-Kendrick’s ability to pay for his house and his affiliation with a known drug dealer; and
- failing to adequately impeach the testimony of two of the victims.
But Lee-Kendrick’s contention does not persuade. Keeler’s statement to an investigator for the public defender about two years before trial shows Keeler believed accuser A.W. was lying about accusing Lee-Kendrick of sexual assault. Yet, the investigator’s memo says Keeler “thought [A.W.] was just saying something,” and Keeler “thought nothing of it when
Further, as argued by Lee-Kendrick’s postconviction counsel before the Wisconsin Court of Appeals, how the defendant financed his River Hills mansion was significant to the jurors. They asked for a copy of Lee-Kendrick’s trial testimony and specifically wanted to know where he got the money to purchase the house. And reference to Lee-Kendrick’s connection to a major criminal, Michael Lock, was prejudicial because it portrayed him as part of a dangerous crime organization. Failure to object to questions posed to Lee-Kendrick on these topics formed the basis of a substantial (albeit unsuccessful) claim of ineffective assistance of trial counsel.
The Keeler witness claim Lee-Kendrick wanted his postconviction counsel to raise about his trial counsel is at best equivalent to—and not clearly stronger than—those arguments raised on direct appeal. So, he has not satisfied Strickland’s deficient performance prong, and he has not shown cause, or the “external impediment” that prevented him from presenting this claim. Garcia, 28 F.4th at 775. Lee-Kendrick
Given this reasoning, we do not review the district court’s merits conclusion that the state court correctly denied Lee-Kendrick relief on the Keeler witness claim, and we need not reach Lee-Kendrick’s request for an evidentiary hearing.
III
Lee-Kendrick claims ineffective assistance of counsel for an impeachment witness not being called at his 2011 jury trial for sexual assaults. Such a claim under