Gish v. Hepp
| Decision Date | 03 April 2020 |
| Docket Number | No. 19-1476,19-1476 |
| Citation | 955 F.3d 597 |
| Parties | Christopher R. GISH, Petitioner-Appellant, v. Randall HEPP, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Shelley M. Fite, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Petitioner-Appellant.
Kara L. Mele, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.
Before Hamilton, Scudder, and St. Eve, Circuit Judges.
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 appreciate the wrongfulness of his conduct. After the Wisconsin Court of Appeals rejected the claim and affirmed his conviction, Gish turned to federal court and wound
his way through a thicket of habeas proceedings. The district court held an evidentiary hearing but denied relief because Gish failed to show that his counsel’s deficient performance resulted in prejudice: even if counsel had investigated involuntary intoxication, that defense was so unlikely to succeed that Gish still would have pleaded guilty. We affirm.
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 that she was having an affair and believed she might take his kids from him.
Wisconsin authorities charged Gish with first-degree intentional homicide, which carries a mandatory sentence of life imprisonment. See WIS. STAT. §§ 939.50(3)(a), 940.01(1)(a). Nathan Opland-Dobs served as Gish’s court-appointed counsel. Gish told Opland-Dobs that he had taken prescription Lamictal
and Xanax before the homicide and thought those medications may have induced his erratic behavior in a way that would afford some legal defense to the charge.
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 WIS. STAT. §§ 939.50(3)(b), 940.02(1), Opland-Dobs advised Gish to take it. Gish agreed, pleaded guilty, and received a sentence of 40 years’ imprisonment and 20 years’ extended supervision.
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 WIS. STAT. § 809.32 (); accord Anders v. California , 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) ().
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 WIS. STAT. § 939.42(1). He supported this contention with police reports describing his delirium
shortly after the homicide, medical records showing he had been prescribed Xanax, and information about Xanax’s side effects that he had found online and in textbooks. Gish then went a step further: he insisted that, had he known an involuntary intoxication was viable, he would have rejected the government’s plea and instead gone to trial.
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, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Gish had to show that Opland-Dobs’s performance "fell below an objective standard of reasonableness," id. at 688, 104 S.Ct. 2052, and resulted in prejudice, meaning that there was "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different," id. at 694, 104 S.Ct. 2052.
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.
Invoking 28 U.S.C. § 2254, Gish petitioned the district court for federal habeas relief, renewing his claim that Opland-Dobs provided ineffective assistance of counsel by failing to investigate a Xanax-based involuntary intoxication defense. To secure relief, Gish had to establish that the Wisconsin Court of Appeals’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." 28 U.S.C. § 2254(d)(1)–(2).
Although ultimately denying relief, the district court did so only after holding an evidentiary hearing, taking testimony, and receiving other evidence on the merits of Gish’s contention that Opland-Dobs should have pursued an involuntary intoxication defense. The district court determined the evidentiary hearing was warranted, and indeed necessary, because Gish, despite offering his prescription records, the police reports, and information about the side effects of Xanax, never had a reasonable opportunity to develop the factual basis for his claim on direct appeal in the state court. Even more, the district court found that Gish’s allegations, if true, supported his claim that Opland-Dobs performed deficiently. The state court’s back-of-the-hand rejection of Gish’s ineffective assistance claim, the district court concluded, reflected an unreasonable application of Strickland , for Gish had brought forth enough evidence on direct appeal to reasonably question the adequacy of Opland-Dobs’s representation in the trial court.
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, would suggest that its effects had worn off by the time of the killing. In much the same vein, a nurse who treated Gish at the hospital wrote in his patient visit records that Gish reported having sold his Xanax and Lamictal pills—suggesting that perhaps he had never taken them at all in the days before the homicide. And the district judge heard testimony that the police found no Xanax in a search of Gish’s home.
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...
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