Reynolds v. Hepp, 16-3430

• Citation: 902 F.3d 699
• Decision Date: 30 August 2018
• Docket Number: No. 16-3430,16-3430
• Parties: Cornell D. REYNOLDS, Petitioner-Appellant, v. Randall HEPP, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

902 F.3d 699

Cornell D. REYNOLDS, Petitioner-Appellant,

v.Randall HEPP, Respondent-Appellee.

No. 16-3430

United States Court of Appeals, Seventh Circuit.

Argued January 4, 2018

Decided August 30, 2018

Samuel S. Park, Attorney, Winston & Strawn LLP, Chicago, IL, for Petitioner-Appellant.

Scott Rosenow, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before Wood, Chief Judge, and Hamilton and Barrett, Circuit Judges.

Hamilton, Circuit Judge.

Petitioner-appellant Cornell Reynolds seeks a writ of habeas corpus under 28 U.S.C. § 2254. In 2002, a Wisconsin jury convicted Reynolds in a fatal carjacking. He seeks habeas relief based on two alleged violations of his Sixth and Fourteenth Amendment right to counsel. First, he argues that Wisconsin violated his right to counsel when it stopped paying his state-appointed lawyer during his direct appeal. In the alternative, he argues that he received ineffective assistance from his counsel during his direct appeal and trial. The district court denied relief. We affirm.

I. Factual & Procedural Background

In May 2001, two young men approached a group of teenagers in a parking lot in Milwaukee. One of the men shot two of the teenagers, killing one of them. The two men drove away in the car the two teenage victims had been driving. Reynolds was arrested two days later after he was identified as the shooter. Wisconsin indicted him for carjacking resulting in death, carjacking resulting in bodily harm, and possessing a firearm as a felon. A jury convicted Reynolds on all three charges. Reynolds sought relief through a direct appeal, a state post-conviction proceeding, and a state habeas corpus petition. Finding no relief in the state courts, he filed his federal habeas corpus petition. We start by summarizing the relevant facts at each stage of Reynolds’s case.

A. Trial & Direct Appeal

Before trial, Reynolds raised an equal protection challenge to Wisconsin’s felony carjacking statute. The trial court rejected the challenge, and the case proceeded to trial. The main issue at trial was identification. The prosecution called four eyewitnesses, including the surviving gunshot victim. Each identified Reynolds as one of the two carjackers and as the shooter of at least one victim. Reynolds did not testify and did not call any witnesses. The jury convicted Reynolds of carjacking resulting in death, carjacking resulting in bodily harm, and possession of a firearm by a felon.

The Wisconsin State Public Defender’s Office appointed attorney Terry Williams as Reynolds’s post-conviction and appellate counsel. With his counsel’s help, Reynolds moved for a new trial on the basis that his trial counsel provided ineffective assistance and should have raised an alibi defense.¹ Reynolds submitted two affidavits describing his whereabouts on the night of the shooting. The trial court found that the affidavits did not help Reynolds since they placed him just a few minutes from the crime scene around the time of the shooting. The court denied Reynolds’s motion without an evidentiary hearing, concluding that he had failed to raise facts showing ineffective assistance or prejudice to his defense.

On direct appeal, Reynolds argued that he was entitled to an evidentiary hearing on his ineffective assistance claim and added an argument that his trial counsel failed to cross-examine the eyewitnesses adequately. The Wisconsin Court of Appeals reversed and remanded with instructions to hold what Wisconsin courts call a Machner hearing. See State v. Machner , 92 Wis.2d 797, 285 N.W.2d 905 (Wis. App. 1979). On remand, the trial court held an evidentiary hearing, considered both arguments, and denied Reynolds’s motion for a new trial.

Reynolds appealed again. At some point after the evidentiary hearing—and while Reynolds’s appeal was pending—staff at the Wisconsin State Public Defender’s Office told attorney Williams that he had spent too much time on his cases. The State Public Defender’s Office informed Williams that they would not pay him for some of the work he had completed on Reynolds’s appeal and that they would not pay him for any more work on the case. They also told Williams that they would no longer assign cases to him. Handling such a management issue by cutting off attorney Williams without taking concrete steps to ensure that his clients would continue to be represented would seem highly unusual and troubling. The record before us simply does not show what efforts the staff might have made to protect Reynolds’s interests.

Reynolds did not immediately learn that the State Public Defenders had stopped paying his attorney. But when he asked Williams to pursue in the second appeal the equal protection challenge to the carjacking statute—which trial counsel had unsuccessfully raised before trial—Williams told him that the State was not paying him anymore and that he could not afford to investigate that additional question. Reynolds could not afford to pay for additional work, even assuming that Williams could have accepted private payments on top of the earlier public defender payments. The result was that Williams did not investigate the equal protection challenge as a possible argument on appeal. Nevertheless, Williams completed briefing in the Wisconsin Court of Appeals on the ineffective-assistance claims and later filed a petition for review with the Wisconsin Supreme Court. The Court of Appeals affirmed the denial of a new trial, and the Wisconsin Supreme Court denied review.

B. Collateral Post-Conviction Relief

In October 2010, Reynolds filed a pro se collateral post-conviction motion in the trial court under Wis. Stat. § 974.06. As relevant here, Reynolds argued that he received ineffective assistance of appellate counsel because attorney Williams failed to argue that his trial counsel should have challenged the jury instructions on carjacking. The formal charging instrument had said that Reynolds took the vehicle "by use of" a dangerous weapon, but the jury was instructed to convict even if it found that he took the car by only "threat of the use of a dangerous weapon." Reynolds argued that the jury should have been instructed using the language in the formal charges and that Williams was ineffective for not raising this argument on appeal.

The trial court denied the motion without a hearing, and the Wisconsin Court of Appeals affirmed. The appellate court first found that Reynolds’s claim for ineffective appellate counsel was conclusory and, therefore, procedurally barred under State v. Escalona-Naranjo , 185 Wis.2d 168, 517 N.W.2d 157 (1994). In the alternative, the court found that the jury instructions were sufficient to support a conviction under Wisconsin law because the carjacking statute establishes a single offense that can be committed by using or threatening to use a weapon. See Wis. Stat. § 943.23(1g) (defining carjacking as intentionally taking "any vehicle without the consent of the owner" by "the use of, or the threat of the use of, force" or a dangerous weapon). The court also found that even if the jury instructions were improper, Reynolds could not prove prejudice. The central issue at trial was identification, not the difference between using a gun and threatening to use a gun—after all, the carjacker shot two victims, and one died. The Wisconsin Supreme Court again denied review.

C. State Habeas Corpus Proceedings

Reynolds next filed a state habeas corpus petition in the Wisconsin Court of Appeals under State v. Knight , 168 Wis.2d 509, 484 N.W.2d 540 (1992). In it, he alleged that Wisconsin violated his Sixth and Fourteenth Amendment right to counsel when the State Public Defender’s Office stopped paying his appellate attorney. Reynolds claimed that the State interfered with his representation, created a conflict of interest between him and his lawyer, and caused his lawyer to forgo investigating the equal protection challenge. The Court of Appeals once again denied relief. The court relied on two cases that applied the conflict-of-interest standard in Cuyler v. Sullivan , 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) — Freeman v. Chandler , 645 F.3d 863, 869 (7th Cir. 2011), and State v. Love , 227 Wis.2d 60, 594 N.W.2d 806, 810–11 (1999) —and found that Reynolds had not shown that the alleged conflict adversely affected his lawyer’s representation of him. The court found as a matter of state law that Reynolds had forfeited the equal protection challenge by failing to raise it before the Machner evidentiary hearing. That means the forfeiture occurred before the State stopped paying his lawyer. Any effort to bring the equal protection claim after that point would have been frivolous, the Wisconsin Court of Appeals found, so the conflict of financial interest could not have adversely affected Williams’s representation of Reynolds.

D. Federal Habeas Corpus Proceedings

Reynolds then filed his federal habeas corpus petition under 28 U.S.C. § 2254. He argued that the State deprived him of counsel when it created a conflict of interest during his direct appeal, and that his appellate counsel was constitutionally ineffective for failing to object to the jury instructions.² The district court denied relief. The court found that there was sufficient evidence to convict Reynolds of either using force or threatening to use force, and thus any mistake in the jury instructions could not have prejudiced him. The court also found that Reynolds had not shown that a conflict adversely affected his appellate representation because Reynolds argued only that the conflict prevented his lawyer from pursuing a procedurally barred claim. The district court declined to grant a certificate of appealability, but we granted a certificate to review Reynolds’s claims surrounding his representation after the State Public Defender’s Office stopped paying his lawyer.

II. Denial of Effective Counsel

The Sixth and Fourteenth Amendments guarantee criminal ...