712 F.3d 1090 (7th Cir. 2013), 12-1148, Warren v. Baenen

Docket Nº:12-1148.
Citation:712 F.3d 1090
Opinion Judge:KANNE, Circuit Judge.
Party Name:Shun WARREN, Petitioner-Appellant, v. Michael BAENEN, Warden, Respondent-Appellee.
Attorney:Maureen L. Rurka (argued), Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner-Appellant. Daniel J. O'Brien (argued), Assistant Attorney General, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.
Judge Panel:Before POSNER, KANNE, and ROVNER, Circuit Judges.
Case Date:April 03, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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712 F.3d 1090 (7th Cir. 2013)

Shun WARREN, Petitioner-Appellant,


Michael BAENEN, Warden, Respondent-Appellee.

No. 12-1148.

United States Court of Appeals, Seventh Circuit.

April 3, 2013

Argued Oct. 29, 2012.

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Maureen L. Rurka (argued), Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner-Appellant.

Daniel J. O'Brien (argued), Assistant Attorney General, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before POSNER, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Shun Warren shot and killed Deshan Morrow on June 3, 2002, during a marijuana sale that went tragically wrong. Although Warren was originally charged in state court with first-degree intentional homicide, he eventually pled no contest to first-degree reckless homicide, a reduced charge. Soon after entering the plea, Warren began attempting to withdraw it, a process that continues here. Warren appears before us as a habeas corpus petitioner, having fought his 40-year sentence through the Wisconsin court system and in federal district court. He argues that the state trial court's refusal to allow him to withdraw his plea deprived him of due process and that he received unconstitutionally ineffective assistance of counsel throughout his state court proceedings. Like every other court to consider Warren's arguments, we find that they lack merit.


The events of June 3, 2002, are, to this day, a bit unclear. It suffices to say that at some point during the day Shun Warren acquired a handgun from his friend, Stormi Dixon, and arranged to buy marijuana from Deshan Morrow, a source he had used before. Warren met Morrow in

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Morrow's car around 5 p.m. that day. Before the sale could be completed, a scuffle broke out. Morrow was shot multiple times. Warren fled the scene with the marijuana and the gun; Morrow was discovered and pronounced dead on the scene later that evening. Warren was arrested in Chicago on June 24, 2002.

Prosecutors originally charged Warren with first-degree intentional homicide, Wis. Stat. § 940.01, a charge to which he pled not guilty on July 16, 2002. (R. 21-10.) The criminal complaint included allegations that Warren acquired the gun and arranged the marijuana sale with the express intention of robbing Morrow and that Morrow's death was the result of a heist gone wrong. The court assigned a public defender, Cynthia Wynn, to represent Warren.

From early in her representation, Wynn focused Warren's attention on the possibility of a plea bargain. As Warren now tells it, the only advice that Wynn gave him prior to entering his plea was that if he went to trial he would, in all likelihood, be found guilty and sentenced to life in prison. Warren, with Wynn's assistance, ultimately came to an agreement on a plea deal with the prosecutors. He agreed to plead no contest to the reduced charge of first-degree reckless homicide as party to a crime, while armed. Wis. Stat. §§ 939.05, 939.63, 940.02(1). According to the transcript of the plea hearing, all parties understood that Warren pled " no contest" rather than " guilty" because he was intoxicated on the day in question and could not " recall all of the facts surrounding the incident." (R. 21-11 at 6); ( id. at 13, 18.) He did agree (despite having been intoxicated) that he brought the gun into Morrow's car, that there was a scuffle while in the car, and that the gun was fired several times. ( Id. at 13-15.) Warren additionally acknowledged that Morrow was killed " as a result of [Warren's] actions." ( Id. at 15.)

Soon after entering his plea, however, Warren began attempting to withdraw it and expressing displeasure with Wynn's representation. The court granted Wynn's request to withdraw as counsel and appointed attorney Theodore Nantz in her place. With Nantz as Warren's counsel, the court heard a motion to withdraw Warren's no contest plea and, on March 20, 2003, rejected the motion as not meeting Wisconsin's " fair and just reason" standard. (R. 21-13.)

Warren appealed this decision to the Wisconsin Court of Appeals with the help of Anne Bowe, yet another appointed attorney. The Court of Appeals rejected Warren's appeal in April 2005. (R. 21-6.) Warren next petitioned the Wisconsin Supreme Court for review; the court denied the petition in August 2005.

Warren continued his quest to withdraw the plea through Wisconsin's collateral review process. See Wis. Stat. § 974.06. This time, Warren alleged ineffective assistance of his various attorneys and that his sentence was too harsh because his attempt to withdraw his plea was held against him. The state trial and appellate courts denied his petitions, and the Wisconsin Supreme Court denied his request for review.

After exhausting his state court remedies, Warren filed a pro se petition for a writ of habeas corpus in the federal district court. Warren again alleged a mix of ineffective assistance and due process claims. Like the state courts, the district court denied relief. Warren v. Pollard, No. 09-C-919, 2011 WL 6016630, at *1 (E.D.Wis. Nov. 30, 2011). The district court did, however, grant Warren a certificate of appealability on five of the eight claims he raised: (1) whether trial counsel Wynn provided effective assistance; (2)

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whether Warren was denied due process when he was not allowed to withdraw his plea; (3) whether sentencing counsel Nantz provided effective assistance; (4) whether Warren was denied due process at his sentencing hearing; and (5) whether appellate counsel Bowe provided effective assistance. (R. 34.) Warren timely appealed the denial of his petition to this court. Accordingly, we review each of the five issues raised in rough chronological order.


Although we review all questions of law from a district court's denial of a habeas corpus petition de novo, Emerson v. Shaw, 575 F.3d 680, 685 (7th Cir.2009), our consideration of Warren's petition is tightly circumscribed. The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ) provides that we may grant a writ of habeas corpus to a petitioner whose claim has been adjudicated on the merits in state court if the state court decision " was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if the relevant state court decision " was based on an unreasonable determination of the facts," 28 U.S.C. § 2254(d)(2). Warren roots his challenges in § 2254(d)(1). A state court decision is " contrary to ... clearly established Federal law" if the court did not apply the proper legal rule, or, in applying the proper rule, reached the opposite result as the Supreme Court on " materially indistinguishable" facts. Brown v. Payton, 544 U.S. 133, 141, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). A state court decision is an " unreasonable application of ... clearly established Federal law" when the court applied Supreme Court precedent in " an objectively unreasonable manner." Id.

This standard is particularly exacting. " [A] state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, __ U.S. __, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). " [A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (internal citation and quotation marks omitted). " If this standard is difficult to meet, that is because it was meant to be." Richter, 131 S.Ct. at 786.

However, AEDPA's deferential standard only applies to claims that were actually " adjudicated on the merits in State court proceedings." 28 U.S.C. § 2254(d). In that case, the decision we review " is that of the last state court to address a given claim on the merits." Harris v. Thompson, 698 F.3d 609, 623 (7th Cir.2012). " When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Richter, 131 S.Ct. at 784-85. But that " presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785. When no state court has addressed the merits of the federal constitutional issue, " the claim is reviewed de novo. "

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Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009).

A. Ineffective Assistance of Trial Counsel

Whether trial counsel Wynn provided Warren with effective assistance is a question that echoes through each of the other issues in this case. Accordingly we take it up first. In brief, we agree with the district court that we cannot grant Warren's petition on this ground.

The standard governing Warren's ineffective assistance of counsel claim is the familiar two-prong Strickland v. Washington test. 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate that Wynn violated Warren's Sixth Amendment right to effective assistance of counsel, he must show first that her performance...

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