Kendrick Lee v. Lisa Avila

Filing

Filed opinion of the court by Judge Sykes. AFFIRMED. Richard A. Posner, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Diane S. Sykes, Circuit Judge. [6868737-1] [6868737] [15-1976]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1976
KENDRICK LEE,
Petitioner-Appellant,
v.
LISA AVILA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 14-CV-373-JPS — J.P. Stadtmueller, Judge.

____________________
ARGUED SEPTEMBER 14, 2016 — DECIDED SEPTEMBER 13, 2017
____________________
Before POSNER, * EASTERBROOK, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Kendrick Lee, a Wisconsin prisoner,
applied for a writ of habeas corpus under 28 U.S.C. § 2254
alleging that his trial counsel was constitutionally ineffective
for failing to preserve objections, adequately cross-examine
*

Circuit Judge Posner retired on September 2, 2017, and did not participate in the decision of this case, which is being resolved by a quorum of
the panel under 28 U.S.C. § 46(d).

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witnesses, and develop various factual points at his trial on
drug charges. Applying the Strickland standard, the
Wisconsin Court of Appeals rejected Lee’s claim for lack of
prejudice. In doing so the state court explicitly addressed all
but one of Lee’s specific complaints about his trial counsel’s
performance.
When a state court rejects a prisoner’s federal claim without discussion, a federal habeas court must presume that the
court adjudicated it on the merits unless some state-law
procedural principle indicates otherwise. Harrington v.
Richter, 562 U.S. 86, 98 (2011). The Richter presumption
applies when the state court’s decision expressly addresses
some but not all of a prisoner’s claims. Johnson v. Williams,
133 S. Ct. 1088, 1094 (2013). Lee has not rebutted the presumption, so the state court’s entire decision is subject to
deferential review under § 2254(d). The district court denied
relief, holding that the state appellate court reasonably
applied Strickland. We agree and affirm.
I. Background
Milwaukee police received a confidential tip that a residence located at 3748 North 17th Street on the city’s north
side was being used as a drug house. Officers secured a noknock warrant to search the residence. When they entered
the home, they immediately came upon Lee, who was in the
living room next to a coffee table laden with the tools of the
drug trade: a digital scale, a razor blade, a latex glove, a box
of sandwich baggies, a cell phone, and $157 in cash. An open
pair of scissors was on the floor next to the coffee table. A
corner-cut plastic baggie containing 5.7 grams of cocaine lay
on the table.

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Officers searched Lee and found $582 in cash and the
keys to the house in his pocket. At trial Officer Brian Burch
testified that the keys were hooked on a single master key
ring along with Lee’s personal house keys. Officers recovered two larger bags of cocaine from the basement. In the
kitchen they found a loaded handgun and a box of latex
gloves on top of a pantry.
Lee was charged with three state crimes: keeping a drug
house, possession of cocaine with intent to deliver, and
possession of a firearm by a felon. His defense at trial was
that he was just an innocent bystander. He testified that the
only reason he was at the house was to help his brother
Tommie move some of his belongings into the basement for
storage. Tommie testified that he had been evicted from his
nearby home on the morning of the search and did not have
the time or space to move everything into his new house
located just a few blocks away. He further testified that a
friend known to him only as “Rowe” gave him permission to
store some of his things in the basement of the drug house,
and he enlisted Kendrick and their brother Jimmie to help
him move the heavier items. The three Lee brothers gave
differing accounts of the move, but altogether they testified
that they moved many large items into the basement of the
drug house that morning, including box springs, beds,
dressers, a glass table, a recliner, end tables, and some boxes
of belongings. This testimony was directly contradicted by
Officer Mark Harms, who told the jury that he was in the
basement during the execution of the warrant and did not
see any of these items.
Lee also offered an explanation for why he just happened
to be standing right next to the table with the bag of cocaine

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and the drug paraphernalia when the officers entered and
why he had the keys to the drug house in his pocket. He
testified that when he and his brothers finished moving the
furniture and other items into the basement, Tommie gave
him the keys so he could reenter the house to use the bathroom located on the main floor. Lee explained that he put
the keys in his pocket only temporarily while using the
bathroom. As he was washing his hands, he heard a loud
crashing noise coming from the living room as the police
entered the house. At that point he entered the living room
and encountered the officers there.
Tommie took responsibility for the handgun found in the
kitchen. He testified that the gun was his and he bought it
off the streets. The prosecutor tried to poke holes in this
testimony on cross-examination. The prosecutor first established that Tommie had a cousin named Donald McCaleb,
and then asked him if he would be “surprise[d] … to know
that Donald McCaleb is the registered owner of that gun?”
Tommie responded, “Yes, it would” surprise him to learn
that. The prosecutor returned to this line of questions during
closing argument, calling Tommie’s response “interesting.”
The prosecutor impeached the Lee brothers with their
extensive criminal records and also drew out inconsistencies
in their accounts of what happened on the day of the search.
To cast further doubt on their moving-day story, during
Tommie’s cross-examination the prosecutor implied that the
eviction could not have occurred until six weeks after the
date of the search. That was incorrect; the prosecutor apparently misunderstood the civil process for an eviction. Lee’s
counsel did not object.

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The jury returned a guilty verdict on each of the two
drug crimes but found Lee not guilty on the firearm charge.
Lee moved for postconviction relief claiming ineffective
assistance of counsel. His motion raised many complaints
about his trial lawyer’s performance. Four are relevant here.
First, Lee claimed that his attorney failed to develop an
adequate record to support his moving-day defense. Specifically, Lee pointed to the failure to obtain documents from the
sheriff’s office that would have confirmed that Tommie was
evicted on the morning in question. In addition, Lee argued
that his attorney should have called Tommie’s wife, Jaclyn,
as a witness. Jaclyn was present during the eviction, and
unlike her husband, she has no criminal record.
Second, Lee claimed that his attorney should have been
more aggressive in her cross-examination of Officer Burch
regarding the keys to the drug house. Lee argued that the
officer’s testimony was weak because it was based solely on
his memory (rather than a police report) and was not corroborated by any other officer. Moreover, the keys were not
included in the inventory log of Lee’s personal possessions
when he was booked into the jail.
Third, Lee claimed that his attorney should have developed a better record disassociating him from the drug house.
He argued that counsel could have called the landlady as a
witness or introduced a copy of the lease to show that he
was not a tenant. The lease identifies the tenants as Ramon
Lavon Towns and Israel Lee. Israel is Lee’s cousin. Ramon is
Tommie’s friend “Rowe.” Or so Lee contended.
Finally, Lee claimed that his attorney should have objected to several aspects of the prosecutor’s cross-examination of

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defense witnesses and remarks during closing argument.
Specifically, Lee pointed to his counsel’s failure to correct the
prosecutor’s inadvertent mischaracterization of eviction law
during Tommie’s cross-examination. In addition, counsel did
not object when the prosecutor implied that the gun Tommie
claimed to have bought off the streets was actually registered to his cousin. When the prosecutor mentioned this line
of questions in closing argument, Lee’s counsel likewise did
not object. Finally, the prosecutor tried to impeach Jimmie’s
testimony with a prior inconsistent statement in which he
supposedly said that two other men joined the Lee brothers
to help with Tommie’s move. Jimmie denied having said
that, but the prosecutor never followed up by introducing
the prior statement. Nevertheless, when the prosecutor
referred to the inconsistent statement during closing argument, Lee’s attorney did not object.
The state trial judge analyzed each of Lee’s claims under
the Strickland standard and denied relief. Regarding the first
three sets of claims, the judge concluded that even if trial
counsel’s performance was deficient, Lee suffered no prejudice because additional evidence or cross-examination on
these subjects “wouldn’t have made a difference” given the
weakness of Lee’s defense and the strength of the state’s
evidence. Regarding the fourth set of claims, the judge
concluded that Lee’s counsel made a reasonable choice to let
the prosecutor’s cross-examination of Tommie and Jimmie
go without objection. The judge also observed that it’s not
uncommon as a matter of trial strategy for attorneys to
refrain from objecting during an opponent’s closing argument, especially if the opposing lawyer’s remarks are not
materially damaging. Finally, the judge held that the failure

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to object caused no prejudice because Tommie and Jimmie
had been discredited in many ways throughout the trial.
The Wisconsin Court of Appeals affirmed the judgment.
The appellate court skipped directly to the second step of the
Strickland framework, holding that even if trial counsel’s
performance was deficient, Lee failed to establish a reasonable possibility that the outcome of the trial would have been
different. The court relied on the overall strength of the
state’s case but specifically emphasized Officer Harms’s
testimony that he saw no furniture, box springs, or boxes in
the basement of the drug house. This testimony, which was
never discredited, fatally undermined Lee’s moving-day
defense. The Wisconsin Supreme Court denied review.
Lee applied for habeas relief in federal court, reprising
his Strickland claims. The district judge noted that the state
appellate court explicitly addressed all of Lee’s arguments
except his attack on his attorney’s failure to lodge objections
during the prosecutor’s closing argument. Applying the
Richter presumption, the judge reviewed the court’s entire
decision under § 2254(d)’s deferential standard of review
and concluded that the state court did not unreasonably
apply Strickland. The judge accordingly denied relief and this
appeal followed.
II. Discussion
“Federal habeas relief from a state-court criminal judgment ‘is not easy to come by.’” Thompkins v. Pfister, 698 F.3d
976, 983 (7th Cir. 2012) (quoting Woods v. McBride, 430 F.3d
813, 816 (7th Cir. 2005)). When a state court has adjudicated a
federal claim on the merits, a federal habeas court may not
grant relief unless the state court’s decision “was contrary to,

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or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of
the United States,” or was based on “an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” § 2254(d)(1), (d)(2). To prevail
under this standard, the “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.” Ward v. Neal,
835 F.3d 698, 703 (7th Cir. 2016) (quoting Richter, 562 U.S. at
103).
We review de novo a district court’s decision denying a
§ 2254 application. Thompkins, 698 F.3d at 983. We focus our
attention on the work of the last state court to consider the
merits of the federal claim—here, the Wisconsin Court of
Appeals. See Gonzales v. Mize, 565 F.3d 373, 379 (7th Cir.
2010). Lee does not contend that the appellate court’s judgment was contrary to federal law. Rather, he argues that the
state court unreasonably applied Strickland.
Under the familiar Strickland formula, Lee had the burden to show that his defense attorney’s performance was
deficient and that the deficient performance prejudiced his
defense. 466 U.S. at 694. Counsel’s performance is entitled to
substantial deference: The Strickland analysis begins with “a
strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance” and “an
objective standard of reasonableness” applies. Id. at 688–89.
Prejudice means “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Because the Strickland

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standard is “highly deferential” and the treatment of statecourt judgments under § 2254(d) is “likewise highly deferential,” our review is “doubly deferential.” Hinesley v. Knight,
837 F.3d 721, 732 (7th Cir. 2016) (quotation marks omitted).
The state appellate court resolved Lee’s claims on
Strickland’s second step. The court assumed for the sake of
argument that trial counsel’s handling of the eviction, the
keys, and the lease fell below constitutional requirements in
the ways Lee had identified. But the court concluded that a
different outcome was not reasonably probable: the state’s
case was very strong, and the court noted in particular that
Lee’s moving-day defense was eviscerated by Officer Harms,
who testified that he saw no box springs, furniture, or boxes
in the basement of the drug house. Because Officer Harms’s
testimony had not been discredited, the court concluded that
a more robust treatment of the eviction, the keys, and the
lease would not have changed the outcome. That was a
reasonable way of resolving these claims. The state court’s
no-prejudice determination was well within the bounds of
reasonable judicial opinion.
Lee urges us to apply de novo review to his remaining
claim regarding counsel’s failure to object to aspects of the
prosecutor’s closing argument. No path to de novo review is
available here. The Richter presumption applies and Lee has
failed to rebut it.
Richter holds that “[w]hen 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.” 562 U.S. at 99. At
issue in Richter was a state-court decision summarily reject-

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ing a federal claim without an explanation. The Supreme
Court has since clarified that the Richter presumption applies
when a state court explicitly resolves some but not all of a
prisoner’s federal claims. Williams, 133 S. Ct. at 1094 (“[W]e
see no reason why the Richter presumption should not also
apply when a state-court opinion addresses some but not all
of a defendant’s claims.”). We’ve explained that under
Richter and Williams, the “state courts must be given the
benefit of the doubt when their opinions do not cover every
topic raised by the habeas corpus petitioner.” Brady v. Pfister,
711 F.3d 818, 826 (7th Cir. 2013). 1
The Richter presumption is “a strong one that may be rebutted only in unusual circumstances.” Williams, 133 S. Ct. at
1096. Lee has not rebutted the presumption. His argument
about counsel’s failure to object to the prosecutor’s closing
was not raised as an independent Strickland claim in the state
appellate court. Rather, it was embedded in an argument
about counsel’s failure to correct the prosecutor’s mischaracterization of eviction law during Tommie’s crossexamination. The point about the improper statements in
closing argument was mentioned as part of the factual basis
for Lee’s broader claim that his counsel was deficient in
failing to “limit improper impeachment of defense witnesses.”
In Williams the Supreme Court observed that “it is by no
means uncommon for a state court to fail to address sepa1

In support of his argument for de novo review, Lee cites Harris v.
Thompson, 698 F.3d 609, 623–26 (7th Cir. 2012), but the Supreme Court’s
later decision in Williams has unsettled Harris and other circuit precedent
on this point, see, e.g., id. at 625; Sussman v. Jenkins, 642 F.3d 532, 533–34
(7th Cir. 2011) (Ripple, J., in chambers).

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rately a federal claim that the court has not simply overlooked.” Id. Given the organization of Lee’s brief, it’s safe to
conclude that the state appellate court considered Lee’s
argument about trial counsel’s failure to object during the
prosecutor’s closing but ultimately did not regard it as
“sufficient to raise a separate federal claim” requiring additional comment. Id. at 1095. Accordingly, we presume the
matter was adjudicated on the merits and review it under
§ 2254(d)’s deferential standard.
When applying § 2254(d) to an argument not explicitly
addressed in the state court’s opinion, “a habeas court must
determine what arguments or theories … could have supported[] the state court’s decision; and then it must ask
whether it is possible fairminded jurists could disagree that
those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Richter,
562 U.S. at 102.
Lee has not given us any good reason to think that counsel’s failure to object during closing argument was either
deficient or prejudicial, let alone that the state court’s implicit contrary conclusion was unreasonable. Indeed, the state
trial judge specifically noted that it’s not uncommon for
lawyers to refrain from objecting during closing argument
and to depart from that practice only when confronted with
a serious misstep by opposing counsel. The trial judge
expressly held that the failure to object during the prosecutor’s closing argument did not fall below the constitutional
standard. We presume that by affirming the judgment, the
appellate court agreed. See Ylst v. Nunnemaker, 501 U.S. 792,
805 (1991). On this record that can hardly be characterized as
an error, much less an error so well understood as to be

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beyond any possibility for fair-minded disagreement. The
decision was justified under either step of the Strickland
formula: There was neither deficient performance nor prejudice.
Because the state court’s decision was well within the
bounds of reasonable judicial opinion, we AFFIRM the judgment denying habeas relief.