Minnick v. Winkleski

• Decision Date: 21 September 2021
• Docket Number: No. 20-3253,20-3253
• Citation: 15 F.4th 460
• Parties: David MINNICK, Petitioner-Appellant, v. Dan WINKLESKI, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

15 F.4th 460

David MINNICK, Petitioner-Appellant,

v.Dan WINKLESKI, Warden, Respondent-Appellee.

No. 20-3253

United States Court of Appeals, Seventh Circuit.

Argued May 12, 2021

Decided September 21, 2021

Rehearing and Rehearing En Banc Denied October 26, 2021

Robert R. Henak, Attorney, Henak Law Office, Milwaukee, WI, for Petitioner-Appellant.

Aaron R. O'Neil, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before Flaum, Hamilton, and Brennan, Circuit Judges.

Brennan, Circuit Judge.

David Minnick pleaded no contest in Wisconsin state court to several crimes that resulted from a violent confrontation involving his then-wife. He received sentences totaling 27 years of initial confinement. Since then, Minnick has brought a series of unsuccessful challenges to his convictions in state and federal courts.

The district court denied Minnick's request for federal habeas relief under 28 U.S.C. § 2254. That court decided that Minnick's trial counsel was not ineffective for advising him that a term of not more than ten years of initial confinement was likely. The court also ruled that Minnick did not show that any reasonable trial counsel would have advised him of the possibility of withdrawing his no contest pleas before sentencing. So not offering that argument did not deny Minnick the right to effective postconviction counsel.

Although Minnick's claims could have been analyzed differently—including whether the state court's decision on his trial counsel's sentencing advice warranted deference under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254 —the correct result was reached. We affirm the denial of habeas relief.

I

When David Minnick's wife told him she was leaving him for another man, Minnick retrieved a rifle and struck her in the head. She fled to her parents’ house across the street, and Minnick followed, firing several shots. He tried to break down the door of his in-laws’ house, broke windows, and shot inside the house, grazing his father-in-law. As a result, Minnick was charged in Kenosha County Circuit Court with aggravated battery, attempted first-degree murder, and several counts of first-degree reckless endangerment and attempted burglary, all while using a dangerous weapon.

Minnick initially pleaded not guilty by reason of mental disease or defect, arguing that his actions were rooted in the post-traumatic stress disorder

from which he suffers. He later withdrew that plea and agreed to plead no contest to the crimes (except for the attempted murder charge, which was dismissed and read-in) and leave sentencing up to the court. This exposed Minnick to 73 years of initial confinement.¹ The presentence investigation report recommended Minnick receive between 16 and 22½ years of initial confinement. At the sentencing hearing, the state asked for 45 years of initial confinement, and Minnick's trial counsel, Laura Walker, asked for 4 years. The trial court sentenced Minnick to 27 years of initial confinement followed by 14 years of extended supervision.

Minnick appealed that sentence, arguing (by his postconviction counsel Michael Zell) that he should be able to withdraw his no contest pleas because he received ineffective assistance of counsel. An attorney is constitutionally ineffective if she performs deficiently and this performance prejudices her client. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Minnick argued Walker met this standard because she improperly guaranteed and unreasonably estimated that he would receive a much shorter sentence.

The state trial court held a hearing at which Minnick and Walker testified.² The court found Walker credible that she did not guarantee Minnick a certain sentence length, and that Minnick knew Walker provided only an estimate. At the hearing, a friend of Minnick's also testified he had spoken with Walker, who asked the friend to convince Minnick to take the plea. Walker responded in her testimony that Minnick knew his sentence was ultimately up to the judge and that she always qualified her statements to Minnick about the length of his sentence by emphasizing that her estimate was not a guarantee. The state court ruled against Minnick and declined to let him withdraw his no contest pleas.

The Wisconsin Court of Appeals affirmed this decision in 2015. That court ruled: "Minnick has shown no more than that counsel predicted an outcome that did not come to pass. Her misjudgment of the likely sentence is not a basis for an ineffective assistance of counsel claim, ... ." The Wisconsin Supreme Court and the Supreme Court of the United States denied review.

Minnick then filed a collateral attack in state court under Wis. Stat. § 974.06, alleging that Walker was constitutionally ineffective because she failed to advise him that he could withdraw his no contest pleas before sentencing if he provided a "fair and just reason." Because Minnick had not raised this claim in his first appeal, he argued the state court could consider it because his postconviction counsel Zell was constitutionally ineffective for not raising it. When Walker learned that the presentence investigation report recommended a sentencing range exceeding what she had advised, Minnick argued, she should have informed him that he could have moved to withdraw his no contest pleas.³

For habeas petitioners who allege they received ineffective assistance of postconviction counsel because an issue was not raised, Wisconsin employs a "clearly stronger" standard to evaluate counsel's performance under Strickland . See State v. Romero-Georgana , 360 Wis.2d 522, 849 N.W.2d 668, 672, 679 (2014) (citing State v. Starks , 349 Wis.2d 274, 833 N.W.2d 146 (2013) ). Under that standard, "the defendant must show that a particular nonfrivolous issue was clearly stronger than issues that counsel did present." Starks , 833 N.W.2d at 163 (internal quotation marks omitted).

The state court held a hearing on Minnick's motion. Zell testified that the claim he raised about Walker's sentence estimate was stronger than arguing Walker was ineffective for not advising Minnick about presentence plea withdrawal. Zell explained that witnesses could testify about Walker's advice to Minnick about the likely sentence. In contrast, given the record, Zell had concerns that a plea withdrawal motion was not well-founded. The state court agreed and denied this motion.

In 2018 Minnick appealed that denial to the Wisconsin Court of Appeals. That court noted how Minnick's appeal was premised on the same scenario it had rejected three years earlier that Walker's misjudgment of a likely sentence was a basis for an ineffective assistance of counsel claim. The appeals court concluded that Zell had not performed deficiently, ruling that the plea withdrawal argument was not clearly stronger than the argument Zell offered. Zell was aware of the law underlying a plea withdrawal motion, and more factors favored the claim Zell made that Walker had misled Minnick concerning his possible sentence than supported an ineffectiveness claim that Walker failed to counsel Minnick to withdraw his pleas before sentencing. Minnick also was not prejudiced, the appeals court ruled, because sentencing was at the discretion of the trial judge and the presentence investigation report did not alter that. The Wisconsin Supreme Court denied review of Minnick's collateral attack.

Minnick then filed this federal habeas corpus petition under 28 U.S.C. § 2254. His petition alleged:

1. Walker was ineffective for saying that if Minnick accepted the plea deal, he would receive only ten years of initial confinement;

2. Walker was ineffective for not advising Minnick that he could withdraw his plea before sentencing; and

3. Zell was ineffective for not making the plea withdrawal argument in Minnick's first appeal.

On the first claim, the district court concluded that Minnick did not make this argument in the state court of appeals, so it could be considered only because the state conceded that Minnick met the exhaustion requirement for habeas petitions. This led the district court to conclude that the Wisconsin Court of Appeals had not adjudicated the first claim on the merits, and that as a result, its decision was not entitled to deference under AEDPA. Even under de novo review, though, the district court denied the first claim because Walker had not shown bad faith, her estimate was not inconsistent with other cases, and there was no suggestion that her estimate was a gross misjudgment.

The district court reviewed the second claim through the lens of ineffective assistance of appellate counsel. But, inscrutably, that court determined the government had waived any argument that Minnick had procedurally defaulted this second claim. So the district court essentially analyzed Minnick's second and third claims together. On these claims, the district court concluded that AEDPA deference applied because the Wisconsin Court of Appeals adjudicated the ineffective assistance of postconviction counsel claim on the merits. According to the district court, Minnick could not have been prejudiced by postconviction counsel's failure because Minnick could not show he would have moved to withdraw his pleas, or that he would have succeeded in withdrawing his plea if he had been advised to do so.

So the district court denied Minnick's petition, but it issued a certificate of appealability on two issues: whether Minnick was denied effective assistance of counsel based on Walker's sentence estimate, and by Zell's failure to make the plea withdrawal argument.

II

We first examine whether Minnick is entitled to habeas relief for his claim that his trial counsel Walker was constitutionally ineffective when she told Minnick he was "likely" to receive no more than ten years of initial confinement. The district court answered this question in the negative. We review that determination, as we...