Kerr v. Thurmer

• Decision Date: 28 March 2011
• Docket Number: No. 09–1032.,09–1032.
• Citation: 639 F.3d 315
• Parties: William R. KERR, Petitioner–Appellant,v.Michael THURMER, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

639 F.3d 315

William R. KERR, Petitioner–Appellant,

v.Michael THURMER, Respondent–Appellee.

No. 09–1032.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 11, 2010.Decided March 28, 2011.

Douglas J. Marsch (argued), Attorney, Julian C. Wierenga, Attorney, Chicago, IL, for Petitioner–Appellant.Katherine D. Lloyd, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent–Appellee.Before KANNE, WOOD, and HAMILTON, Circuit Judges.WOOD, Circuit Judge.

William and Joan Kerr had been married almost a decade when Joan struck up a romantic relationship with Anthony Graff. (We will refer to William Kerr by his last name and to Joan Kerr by her first to keep the actors clear.) The affair between Joan and Graff started in the summer of 1999, but it did not last long. On August 8th of that year, the Kerrs spent the day drinking with friends, first at the Wisconsin State Fair and later at their home. During the day, Joan met with Graff in secret at the fair. That evening, Graff decided to call the Kerrs' house to speak with Joan. Kerr picked up the phone, however, and the conversation was hostile. Ultimately, Graff decided to pay Kerr a visit.

Upon learning that Graff was on his way over, Kerr loaded a 12–gauge shotgun and placed it within reach in the kitchen. Less than an hour later, Graff appeared at the Kerrs' back door and told Kerr that they needed to talk. Graff's arrival was followed almost immediately by the appearance of officers from the Wauwatosa (Wisconsin) Police Department. A neighbor had summoned the police after spotting Graff as he sneaked up to the Kerrs' house. When the officers arrived, Kerr told them that Graff—who was by then sitting at the Kerrs' kitchen table—was a friend and sent them on their way. Kerr returned to the kitchen and, according to his version of events, had the following brief exchange with Graff:

Kerr: What's the problem?

Graff: I'm your fucking problem. I'm going to take your wife and you're not going to stop me.

Kerr: Over my dead body.

Graff: That will be easy enough.

At that point, Graff started to stand up. Kerr picked up his shotgun and shot Graff once in the abdomen, killing him instantly. Kerr called the police back to the house and turned himself in.

A Wisconsin jury convicted Kerr of first-degree intentional homicide in December 1999, and the state court sentenced him to life imprisonment with eligibility for parole after 21 years. After losing his direct appeal, Kerr filed a section 974.06 motion pro se in the state trial court. (A section 974.06 motion is the statutory equivalent of a petition for a writ of habeas corpus in Wisconsin. See Wis. Stat. § 974.06; Morales v. Boatwright, 580 F.3d 653, 656–57 (7th Cir.2009) (discussing Wisconsin's post-conviction procedures).) The trial court denied Kerr's motion, the Wisconsin Court of Appeals summarily affirmed, and the Supreme Court of Wisconsin denied review.

Kerr then turned to federal court to challenge his conviction. Again acting pro se, he filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254, in which he asserted that constitutional errors in his state-court proceedings justified relief. The district court denied the petition on the merits without an evidentiary hearing, but it issued a certificate of appealability on a number of Kerr's claims. Kerr is now before this court, where he is arguing that he is entitled to relief because his defense attorneys provided ineffective assistance of counsel. He advances two different theories in support of that position.

Kerr first contends that his lawyers were ineffective because they gave him incorrect information about the sentence that he would have faced if he had accepted a plea deal offered by the state before trial. According to Kerr, the prosecutors were prepared to allow him to plead guilty to first-degree reckless homicide, but his lawyers convinced him not to accept the deal when they incorrectly informed him that he would face 13 years to life for that offense. In fact, reckless homicide in Wisconsin is punishable by 0–40 years. Kerr asserts that he would readily have accepted the state's offer if he had known of the actual penalties associated with the different crimes.

The second theory that Kerr asserts relates to his lawyers' failure to present the defense of adequate provocation at the trial. He points to the events in the days and hours leading up to the shooting and argues that Graff did more than enough to provoke the attack that killed him. Had the jury been persuaded that provocation existed, this would have reduced his crime from first- to second-degree intentional homicide.

We review the district court's decision to deny Kerr's petition for a writ of habeas corpus de novo and any of its factual findings for clear error. Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir.2010). Kerr would like us either to reinstate the plea deal that he says was offered by the state or to grant a new trial. In the alternative, Kerr asks for an evidentiary hearing in the district court so that he can develop his claims. We conclude that Kerr is not entitled to relief on his adequate provocation theory, but we find that a hearing is necessary before his plea bargain claim can be resolved.

I

We begin with Kerr's argument that his trial lawyers were ineffective for failing to present an adequate provocation defense at trial. We agree with both parties and the district court that the state trial court—the Circuit Court of Milwaukee County—ruled on the merits of this argument. Accordingly, we evaluate the state court's decision under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2254(d); Harrington v. Richter, ––– U.S. ––––, 131 S.Ct. 770, 780, 178 L.Ed.2d 624 (2011); Ylst v. Nunnemaker, 501 U.S. 797, 802–04, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991); George v. Smith, 586 F.3d 479, 484–85 (7th Cir.2009). The statute provides that we may grant relief to Kerr only if the state court's decision was contrary to or an unreasonable application of clearly established Supreme Court precedent, or if it was based on an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d)(1) & (2); Williams v. Taylor, 529 U.S. 362, 404–06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In this case, the applicable Supreme Court precedent is Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To succeed on his claim that his lawyers provided constitutionally ineffective assistance, Kerr had to show deficient performance on the part of his attorneys and prejudice from that deficiency, meaning a substantial likelihood that the result would have been different. Id. at 687, 104 S.Ct. 2052; see also Richter, 131 S.Ct. at 791–92. Our responsibility is not to decide ourselves whether Strickland's standards were met; it is instead to decide whether the state courts were unreasonable when they concluded that Kerr's ineffective assistance claim could not prevail. Richter, 131 S.Ct. at 785. Here, since the state courts correctly identified Strickland as the governing law, we have only to decide “whether the state court's application of clearly established federal law was objectively unreasonable.” Williams, 529 U.S. at 409, 120 S.Ct. 1495; see also Raygoza v. Hulick, 474 F.3d 958, 963 (7th Cir.2007).

A few additional legal principles inform our resolution of that question. First, we do not as a rule second-guess counsel's strategy. Instead, judicial scrutiny of a lawyer's performance must be highly deferential, and courts assessing counsel's performance generally presume that decisions at trial fall within “the ‘wide range’ of reasonable professional assistance.” Richter, 131 S.Ct. at 787 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “The law does not require counsel to raise every available nonfrivolous defense.” Knowles v. Mirzayance, ––– U.S. ––––, 129 S.Ct. 1411, 1422, 173 L.Ed.2d 251 (2009). Moreover, even if a lawyer's decision to omit a defense falls below this forgiving performance standard, Strickland's requirement that prejudice be shown means that the defendant must make a case that there is a reasonable probability—one sufficient to undermine our confidence in the outcome—that the result of the proceeding would have been different if the defense had been presented. 466 U.S. at 694, 104 S.Ct. 2052; see also Long v. Krenke, 138 F.3d 1160, 1164 (7th Cir.1998) (“[T]he mere possibility of success based on a defense for which there existed little or no evidentiary support is not enough to establish constitutionally inadequate counsel.”).

Whether Kerr's lawyers should have put on the defense and whether it might have succeeded also depend in part on Wisconsin law. As we have mentioned, a first-degree intentional homicide in Wisconsin is mitigated to second-degree intentional homicide when death is caused under the influence of adequate provocation. WIS. STAT. §§ 940.01(2)(a) and 939.44. “Provocation” is defined as “something which the defendant reasonably believes the intended victim has done which causes the defendant to lack self-control completely at the time of causing death,” id. § 939.44(1)(b); and provocation is “adequate” when it is “sufficient to cause complete lack of self-control in an ordinarily constituted person,” id. § 939.44(1)(a). The adequacy requirement is the objective component of the defense; it requires proof of “such mental disturbance, caused by a reasonable, adequate provocation as would ordinarily so overcome and dominate or suspend the exercise of the judgment of an ordinary man, as to render his mind for the time being deaf to the voice of reason: make him incapable of forming and executing that distinct intent to take human life....” Johnson v. State, 129 Wis. 146, 108 N.W. 55, 60–61 (1906). Provocation, on the other hand, is the subjective part of the defense. A defendant must show that the...