Wilkerson v. Watson

Filing 38

MEMORANDUM OPINION AND ORDER Signed by the Honorable Martha M. Pacold on 8/25/2023: (rao, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TORRAY WILKERSON,
Petitioner,
v.

Case No. 17-cv-05275
Judge Martha M. Pacold

CHERRYLE HINTHORNE, Warden, 1
Respondent.
MEMORANDUM OPINION AND ORDER
Petitioner Torray Wilkerson, a prisoner in custody of the State of Illinois,
seeks a writ of habeas corpus under 28 U.S.C. § 2254. [1]. 2 His petition claims that
his state criminal trial suffered from three constitutional flaws: first, that the state
put on insufficient evidence to convict him of possession with intent to deliver
heroin, in violation of the Due Process Clause. Id. at 5–6, 10–11. Second, that his
trial counsel provided ineffective assistance by failing to pursue a strategy
challenging the weight of the heroin at issue in the case. Id. at 6, 11–12. And third,
that his trial counsel provided ineffective assistance by choosing not to pursue a
strategy that would have shifted responsibility for the heroin to Wilkerson’s
brother, who was Wilkerson’s codefendant. Id. at 6, 12. Wilkerson claims that trial
counsel avoided this strategy because counsel had a disabling conflict due to
counsel’s past representation of Wilkerson’s brother and because Wilkerson’s
brother was paying Wilkerson’s legal bills. Id. at 12.
Under Seventh Circuit caselaw, litigants must present developed arguments
and support those arguments with citations to pertinent authority. See, e.g., United
States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003); United States v. Berkowitz, 927
F.2d 1376, 1384 (7th Cir. 1991). None of the three claims in Wilkerson’s petition is
supported by pertinent authority, save two citations to United States Supreme
Court cases supporting generic legal standards. This form of presentation does not
advance the argument that Wilkerson needs to make for his petition to succeed—
that the Illinois Appellate Court decision denying these claims was contrary to or an
unreasonable application of clearly established federal law as determined by the
Cherryle Hinthorne, Warden of the Illinois River Correctional Center, is automatically
substituted as Respondent. See Fed. R. Civ. P. 25(d); Rules Governing § 2254 Cases 2(a).
2 Bracketed numbers refer to docket entries and are followed by page and/or paragraph
numbers. Page numbers refer to the CM/ECF page number.
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Supreme Court. 28 U.S.C. § 2254(d)(1). Thus, all three of Wilkerson’s claims are
forfeited. See United States v. Olano, 507 U.S. 725, 733 (1993) (“forfeiture is the
failure to make the timely assertion of a right”).
In the alternative, the court also concludes that each of the claims in
Wilkerson’s petition lacks merit. On the due process claim, the state court decision
was not an unreasonable application of Jackson v. Virginia, 443 U.S. 307 (1979).
The state court’s resolution of the first ineffective-assistance claim was not an
unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). And its
resolution of the second ineffective-assistance claim was not an unreasonable
application of Cuyler v. Sullivan, 446 U.S. 335 (1980). Wilkerson’s petition is
denied. No certificate of appealability will issue because jurists of reason could not
debate the court’s conclusion.
FACTUAL BACKGROUND
On May 1, 2014, Chicago police officers executed a search warrant at 2611 W.
Ogden Avenue, a “three-story building contain[ing] three apartments in the rear
and an empty storefront with two apartments above it.” People v. Wilkerson, 63
N.E.3d 929, 934 (Ill. App. Ct. 2016); see also [1] at 6. “The search warrant was
confined to the first-floor rear apartment.” Wilkerson, 63 N.E.3d at 934. The target
of the warrant was Todd Jones. Id.
One of the officers, Officer Mingari, knocked on a rear door to the storefront
after he heard the sounds of a television coming from inside. Id. at 934. A male
voice on the other side asked who it was; Mingari answered that he was a Chicago
police officer. Id. A second male voice then told Mingari to “hold on.” Id. At that
point, Mingari heard a handgun slide being pulled back and simultaneously heard
the front door of the storefront opening. Id. Immediately, another officer yelled
that someone was climbing a gate in front of the building and running. Id. A third
officer who pursued and eventually captured the running individual identified him
as Senica Wilkerson, petitioner’s brother. 3 Id. at 934, 937.
Mingari moved toward the front of the building, where he saw one of his
fellow officers pursuing Senica. Id. at 934–35. From outside the front of the
building, Mingari could see through the open front door into the storefront. Id. at
935. With that vantage point, Mingari saw a man, whom Mingari identified in
court as Torray Wilkerson, exit through the back door and run upstairs to the
second floor. Id. Mingari followed and went back into the building. Id. He heard a
door slam on the building’s second floor and waited for backup before proceeding
further. Id.

The court will refer to petitioner as “Wilkerson,” or “Torray” where necessary for clarity,
and to his brother as “Senica.”

3

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Once backup arrived, Mingari knocked on the second-floor rear apartment
door to no response. Id. Over the radio, Mingari heard that an individual in the
second-floor rear apartment had thrown a handgun onto an adjacent roof. Id.
Wilkerson eventually opened the door and allowed Mingari and the backup officer
to enter. Id. The officers temporarily detained Wilkerson. Id. The officer who had
seen the man in the second-floor apartment throw the handgun identified
Wilkerson as the individual he had seen discard the firearm. Id.
With the Wilkerson brothers in custody, Officer Mingari returned to the
building’s first floor. Id. From the building’s rear hallway, he observed several
packages of drugs and two dogs in a cage in plain view through the open rear door
of the storefront. Id. Mingari and fellow officers conducted a security sweep of the
storefront and after a search, seized 85 packages of heroin, a large quantity of
heroin on a mirror on a toilet in the bathroom, a large case of the prescription
sleeping aid Dormin, and several other packages of drugs. Id. A more thorough
search revealed a trash bag containing ammunition and a clear, knotted bag
containing more heroin, as well as four digital scales, three mixers, and a sifter. Id.
PROCEDURAL HISTORY
The State of Illinois charged Wilkerson with six felony counts in the Circuit
Court of Cook County; the state dismissed two of the counts before trial. Id. at 934.
After a bench trial, the judge found Wilkerson guilty of being an armed habitual
criminal, possession with the intent to deliver more than 900 grams of heroin, and
unlawful use of a weapon by a felon. Id. at 933. The judge found him not guilty of
armed violence. Id. Wilkerson was sentenced to the minimum fifteen years on the
possession-with-intent-to-deliver count and seven years on the armed-habitualcriminal count, to be served concurrently. Id. The unlawful-use-of-a-weapon count
merged into the latter count. Id.
After the trial and sentencing, Wilkerson moved for reconsideration of the
findings of guilt. Id. at 939. He contended that the state put on insufficient
evidence to show constructive possession, that the search warrant the officers had
been executing was flawed, and that he received ineffective assistance of counsel at
trial. Id. The trial court held an evidentiary hearing on the ineffective-assistance
claim. Id. Trial counsel stated that he had entered an appearance on behalf of
petitioner’s brother, Senica, at Senica’s bond hearing. Id. In addition, Senica had
been paying trial counsel to represent Torray in the case, Torray was aware of these
payments, and Torray and trial counsel had discussed the arrangement. Id. Under
questioning as to why he did not pursue a strategy wherein he would argue that
Senica was the person in possession of the drugs as opposed to Torray, trial counsel
responded that he thought the brothers had very similar defenses, and that he and
Torray had agreed on a strategy of questioning Officer Mingari’s vantage point
based on their view that Mingari could not have seen what he claimed to have seen.
Id.
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The trial court denied Wilkerson’s motion for reconsideration, reasoning that
trial counsel had no conflict and that he had not provided ineffective assistance. Id.
Wilkerson timely appealed. Id.
The Illinois Appellate Court affirmed. Id. at 945. As relevant here, its
decision had three key holdings.
First, taking the facts in the light most favorable to the prosecution, the court
held that the prosecution had put on sufficient evidence to sustain the conviction for
possession with intent to deliver heroin. Id. at 943–44. Wilkerson argued that the
evidence did not establish that he constructively possessed the heroin with intent to
deliver it. [7-2] at 13–22. But the Appellate Court pointed to five facts that, taken
together, were enough to establish constructive possession. (1) The storefront was
vacant. (2) Wilkerson had no reason to be present in the storefront unless he was in
possession of the heroin. (3) Officers heard both Torray and Senica inside the
storefront from where the heroin was recovered. (4) Both fled the scene. And (5)
they were the only individuals in the area. Wilkerson, 63 N.E.3d at 944.
On the intent to deliver, the Appellate Court pointed to the significant
distribution paraphernalia recovered from the scene. Id. This included the
prescription sleeping aid Dormin—which Officer Mingari testified was often used to
cut drugs—the digital scales, and the significant quantity of heroin, which was
much too large for personal use. Id.; see also id. at 935 (describing Officer Mingari’s
testimony that Dormin is often used “as a cutting substance in the mixing of
drugs”).
Second, the Appellate Court held that Wilkerson’s trial counsel did not
provide ineffective assistance by choosing not to challenge the weight of the heroin
recovered. Id. at 941–42. Trial counsel stipulated that if called, the state’s forensic
chemist would testify that the mixture she tested had heroin in it and weighed
900.5 grams, over the 900-gram threshold weight that results in a 15-year
minimum sentence. Id. at 938, 941. Wilkerson’s argument had two bases. One was
that the heroin recovered from the mirror in the storefront bathroom had three
distinct piles that Officer Mingari commingled by placing all three together in a
single Rubbermaid bin. [7-2] at 11, 28–32. According to Wilkerson, one of these
piles could have contained no heroin and the state would have been unable to prove
the existence of an essential element of the crime: that the mixture containing
heroin weighed over 900 grams. Id. at 29, 31. Wilkerson claimed that his attorney
provided constitutionally deficient performance that prejudiced him by stipulating
to the chemist’s findings and failing to cross-examine the officers on this alleged
commingling. Id. Wilkerson also argued that stipulating to the weight of the
heroin prohibited trial counsel from cross-examining the chemist on the deviation of
the scales, and that the net weight of the narcotics in this case was particularly
vital, as the stipulated heroin weight was only .5 grams above the statutory
threshold. Id. at 29.
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The Appellate Court rejected both parts of this claim. Wilkerson, 63 N.E.3d
at 941–42. Examining a picture of the heroin on the mirror in the appellate record,
the court concluded that the picture depicted one large pile of heroin, not the three
distinct piles that Wilkerson claimed. Id. at 942 (discussing [7-9] at 8 (picture)).
Further, the court noted that “[t]here is a pile of powder in the sifter resting on top
of the mass, but a sifter contains holes and would not prevent the substances from
commingling.” Id. As to the total weight of the heroin, the Appellate Court rejected
the argument because the chemist stipulated that the scales had been calibrated
prior to testing. Id.
Third, the Appellate Court held that trial counsel had no actual conflict of
interest that adversely affected his performance. Id. at 941. The court noted that
trial counsel stopped representing Senica long before the trial began, that Torray
was aware that Senica was paying his legal bills, and that this arrangement had no
adverse impact on counsel’s performance. Id. Further, the court concluded that
trial counsel reasonably chose to pursue a strategy of discrediting Mingari’s
testimony rather than pinning responsibility for the narcotics on Senica. Id. The
court also noted that Torray agreed to this strategy in advance. Id.
After his unsuccessful appeal, Wilkerson filed a petition for leave to appeal
(PLA) to the Illinois Supreme Court. [7-5]. The Illinois Supreme Court denied the
PLA without opinion. People v. Wilkerson, 65 N.E.3d 846 (Ill. 2016) (table).
With the assistance of counsel, Wilkerson timely filed the current petition for
a writ of habeas corpus, [1], and sought oral argument on it, [19]. The court has
reviewed the petition and relevant briefing. After considering Wilkerson’s request
for oral argument, the court finds the papers sufficient to decide the petition.
LEGAL STANDARD
State prisoners seeking a writ of habeas corpus must show that the last state
court decision addressing their claims on the merits was contrary to or an
unreasonable application of clearly established federal law as determined by the
United States Supreme Court, or that the state court decision was based on an
unreasonable determination of the facts. 28 U.S.C. § 2254(d)(1)–(2); Kimbrough v.
Neal, 941 F.3d 879, 881 (7th Cir. 2019). Here, the Illinois Appellate Court decision
is the last reasoned opinion because the Illinois Supreme Court summarily denied
the PLA. See Johnson v. Williams, 568 U.S. 289, 297 n.1 (2013).
ANALYSIS
I.

Sufficiency of the Evidence

Wilkerson first contends that the state put on insufficient evidence to sustain
his conviction for possession with intent to deliver. [1] at 5–6, 10–11. In Jackson v.
Virginia, 443 U.S. 307 (1979), the Supreme Court held that it violates the
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Fourteenth Amendment’s Due Process Clause if “it is found that upon the record
evidence adduced at the trial no rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” Id. at 324. Habeas courts assessing a due process
sufficiency-of-the-evidence claim must view the evidence “in the light most favorable
to the prosecution.” Id. at 319. And § 2254(e)(1) dictates that state court
factfinding is presumed correct unless the petitioner rebuts the presumption “by
clear and convincing evidence.”
Wilkerson forfeited this claim by not adequately presenting it. The Seventh
Circuit requires litigants to sustain their arguments by developing them and citing
pertinent authority in support. United States v. Holm, 326 F.3d 872, 877 (7th Cir.
2003) (citing Beard v. Whitley Cnty. REMC, 840 F.2d 405, 408–09 (7th Cir. 1988)).
Most of the cases Wilkerson cites for his sufficiency-of-the-evidence claim are from
Illinois state courts. See [1] at 10–11 (citing his state court briefs [7-2] & [7-5],
which themselves only cite state cases for the relevant claims); [9] at 1–4 (arguing
the facts and citing almost exclusively state cases). But federal habeas relief is not
available for errors of state law. E.g., Crockett v. Butler, 807 F.3d 160, 168 (7th Cir.
2015). Thus, Wilkerson’s sufficiency-of-the-evidence claim is undeveloped and
unsupported by pertinent authority. Under the Seventh Circuit’s standard, the
claim is forfeited.
Wilkerson does cite Jackson, the relevant U.S. Supreme Court case on this
claim, in his reply brief. [9] at 4. He cites it for the proposition that “no rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Id. As noted above, Jackson does indeed set out the legal
principle that it violates the Fourteenth Amendment’s Due Process Clause if “it is
found that upon the record evidence adduced at the trial no rational trier of fact
could have found proof of guilt beyond a reasonable doubt.” 443 U.S. at 324. But
the citation of Jackson does not advance the argument that Wilkerson needs to
make to succeed on his claim—that the Illinois Appellate Court decision was
contrary to or unreasonably applied Jackson. Wilkerson does not engage with the
relevant legal standards or cases or explain why the Appellate Court decision
unreasonably applied Jackson, and thus has forfeited the argument.
Even if Wilkerson had properly presented the claim for this court’s review,
the claim cannot succeed on the merits because the state court decision was not
contrary to Jackson and did not unreasonably apply it. Jackson holds that the
constitutional minimum of due process requires that, when taking the evidence in
the light most favorable to the prosecution, there must be enough evidence for a
rational trier of fact to conclude that the petitioner was guilty beyond a reasonable
doubt. 443 U.S. at 324.
Though the state court did not cite Jackson (and it did not need to, see Early
v. Packer, 537 U.S. 3, 8 (2002) (per curiam)), the court applied the correct standard
and its decision is entitled to AEDPA deference. See Wilkerson, 63 N.E.3d at 943
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(applying the Jackson standard); Mosley v. Atchison, 689 F.3d 838, 844 (7th Cir.
2012) (state court decision entitled to deference because it applied the correct legal
standard).
The Appellate Court’s decision was not contrary to Jackson and was not an
unreasonable application of Jackson. The court pointed to evidence in the record
that a reasonable trier of fact could have determined established constructive
possession under Illinois law. Wilkerson, 63 N.E.3d at 943–44. Wilkerson was in a
storefront with a firearm and only moments later, the police found almost a
kilogram of heroin, a cutting agent, and drug-dealing paraphernalia there. Id.
Wilkerson and his brother were the only two people in the area and Wilkerson fled
from the place where the officers found the heroin. Id. The state court did not
unreasonably apply Jackson in concluding that a reasonable trier of fact could have
concluded that Wilkerson constructively possessed the heroin.
To the extent that Wilkerson is challenging the state court’s factfinding
underlying its resolution of the sufficiency-of-the-evidence claim, see [9] at 1–2, he
has not shown by “clear and convincing evidence” that the state court’s relevant
factual conclusions were incorrect, 28 U.S.C. § 2254(e)(1). To conclude that
Wilkerson constructively possessed the heroin, the state court pointed to five facts.
(1) The storefront was vacant. (2) Wilkerson had no reason to be present in the
storefront unless he was in possession of the heroin. (3) Officers heard both Torray
and Senica inside the storefront from where the heroin was recovered. (4) Both fled
the scene. And (5) they were the only individuals in the area. Wilkerson, 63 N.E.3d
at 944. Wilkerson’s briefing, [1], [9], does not explain how any of those conclusions
was wrong based on clear and convincing evidence in the record. Thus, those
findings bind this court. See Mendiola v. Schomig, 224 F.3d 589, 592–93 (7th Cir.
2000).
Wilkerson’s due process claim does not warrant habeas relief.
II.

Ineffective Assistance of Counsel—Heroin Weight

Wilkerson contends that his trial counsel provided ineffective assistance by
not challenging the weight of the heroin recovered from the scene. [1] at 6, 11–12.
The basis for this claim is twofold. First, Wilkerson makes a factual argument that
the heroin recovered from the mirror in the store’s bathroom had three distinct piles
and that Officer Mingari commingled the three piles by throwing all three into one
Rubbermaid bin. Id. at 11–12. Trial counsel chose to stipulate to the weight of the
heroin, which prevented him from cross-examining Officer Mingari as to this
alleged commingling. Id. Had counsel instead opted to cross-examine Mingari,
Wilkerson argues, the state could not have proven beyond a reasonable doubt that
the heroin mixture weighed more than 900 grams. Id. Second, Wilkerson argues
that trial counsel should have challenged the state’s chemist about variance in the
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accuracy of the scales used to weigh the heroin, because the stipulated weight was
only half a gram above the 900-gram statutory threshold. Id. at 11.
To show ineffective assistance of counsel, a habeas petitioner must
demonstrate that counsel’s performance fell below the constitutional minimum and
a reasonable probability that but for the deficient performance, the result would
have been different. Strickland, 466 U.S. at 687. Where a federal habeas court is
reviewing a state court’s denial of an ineffective-assistance claim under AEDPA, the
court’s review is “doubly deferential.” Cullen v. Pinholster, 563 U.S. 170, 190
(2011). In this posture, a wide range of trial counsel’s strategic decisions about how
to present the evidence at trial constitute constitutionally sufficient performance.
E.g., Dunn v. Reeves, 141 S. Ct. 2405, 2410–13 (2021); Florida v. Nixon, 543 U.S.
175, 192 (2004); Bell v. Cone, 535 U.S. 685, 701–02 (2002). The court may not
disturb the state court’s verdict unless “every fairminded jurist would agree that
every reasonable lawyer would have made a different decision.” Dunn, 141 S. Ct. at
2411 (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)) (internal quotation
marks omitted).
Like Wilkerson’s first claim, this claim is also forfeited. Wilkerson cites one
relevant Supreme Court case, Knowles v. Mirzayance, 556 U.S. 111 (2009). [9] at 3
(citing Mirzayance, 556 U.S. at 121). Mirzayance quotes § 2254(d)(1), but Wilkerson
does not explain why the Illinois Appellate Court decision was an unreasonable
application of Mirzayance or any other clearly established federal law as
determined by the Supreme Court. See § 2254(d)(1). Without citation to pertinent
authority, this argument is undeveloped and thus forfeited. See, e.g., Mahaffety v.
Ramos, 588 F.3d 1142, 1146 (7th Cir. 2009).
On the merits, both aspects of the ineffective-assistance claim are
unpersuasive.
Challenging the Alleged Commingling. Both the trial court and the Appellate
Court concluded that trial counsel’s strategic choice not to pursue the commingling
strategy was not deficient performance under Strickland. Wilkerson, 63 N.E.3d at
939, 942. Strategic choices by trial counsel are “virtually unchallengeable” if
counsel makes them after a thorough investigation. Raygoza v. Hulick, 474 F.3d
958, 962 (7th Cir. 2007) (quoting Strickland, 466 U.S. at 690–91). Wilkerson put
forward no facts in his habeas petition or reply brief in this court—or in the state
courts—indicating that trial counsel made a less-than-thorough investigation into
commingling the piles. As the Appellate Court pointed out, the heroin on the mirror
in the bathroom does not appear to be in three distinct piles as Wilkerson contends.
Wilkerson, 63 N.E.3d at 942. Rather, a photograph in the state court record depicts
what is more accurately described as one large pile with a sifter in the middle,
which has holes and would have permitted any “distinct” pile in the sifter to mix
prior to Officer Mingari placing all the powder in a bin together. Id. (discussing
[7-9] at 8). The state court’s factual conclusion that the heroin was all in one pile is
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conclusive unless Wilkerson can show by clear and convincing evidence that the
conclusion was erroneous. 28 U.S.C. § 2254(e)(1). But this court’s own review of the
photograph leads it to the same conclusion as the state court; it is far from “clear
and convincing” that there were three distinct piles in any meaningful sense.

[7-9] at 8.
With these facts settled, trial counsel’s decision to pursue a strategy focused
on questioning Officer Mingari’s vantage point fell within the nearly limitless
discretion that Strickland allows for strategic decisions. “Vigorous representation
of a criminal defendant often entails difficult choices that competent (indeed, firstrate) defense attorneys might make differently.” Clay v. United States, 311
F. Supp. 3d 911, 926 (N.D. Ill. 2018) (quoting Killingsworth v. Bensko, 386
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F. Supp. 2d 949, 960 (N.D. Ill. 2005)). Wilkerson’s briefing does not show that the
state court’s application of this core Sixth Amendment principle was unreasonable.
Challenging the Chemist. Wilkerson also argues that trial counsel provided
ineffective assistance because, by stipulating to the weight of the heroin, he was
precluded from cross-examining the forensic chemist about deviations in the scales
used to weigh it. [1] at 11–12. The Appellate Court dismissed this claim
summarily, noting that the forensic chemist’s stipulation included that the scales
were calibrated prior to testing. Wilkerson, 63 N.E.3d at 942. The Appellate Court
also cited Illinois law favoring stipulated testimony of forensic experts on the
presence of controlled substances. Id. (citing People v. Stewart, 851 N.E.2d 162 (Ill.
App. Ct. 2006)).
Though not perfectly connected to the law of ineffective assistance of counsel,
the court’s resolution of this claim was nonetheless a reasonable application of
Strickland and was not contrary to Strickland. Like the previous aspect of this
claim, trial counsel made a strategic decision to focus on an argument that Officer
Mingari could not have seen or identified Wilkerson from Mingari’s vantage point.
See id. at 939 (discussing trial counsel’s evidentiary-hearing testimony). Though
the stipulated weight of the heroin was quite close to the statutory threshold, trial
counsel reasonably could have concluded that challenging the weight, especially in
light of the chemist’s stipulated testimony that she had calibrated the scales, was
an unwise strategy and use of trial time, particularly because Illinois law favors
stipulations on these matters. See id. at 938, 942.
Wilkerson does not explain how the Appellate Court’s resolution of this issue
was an unreasonable application of any Supreme Court case on ineffective
assistance. The state court gave the wide deference that the Supreme Court affords
to trial counsel performance and explained why counsel’s choice to stipulate to the
drug weight was not unreasonable in light of the facts of the case and the prevailing
law in the state. See id. Thus, Wilkerson’s second claim is not a sufficient basis to
grant habeas relief.
III.

Ineffective Assistance of Counsel—Conflict

Wilkerson’s final argument is that his trial counsel provided ineffective
assistance by choosing not to assign responsibility for the drugs found at the scene
to Senica, Wilkerson’s brother and codefendant. [1] at 6, 12. Wilkerson contends
that this choice was due to a conflict of interest and bases the conclusion on two
facts. First, Senica previously engaged Torray’s trial counsel at the bond hearing
stage of the case. Id. And second, Senica paid Torray’s trial counsel for Torray’s
representation at trial. Id.
As with Wilkerson’s first two claims, the third is likewise forfeited.
Wilkerson neither cites nor engages with the Supreme Court’s cases on conflicted
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counsel. Wilkerson’s argument rests on claims about conflicted counsel without
legal support. This argument is not properly presented for the court’s review and is
thus forfeited. See Mahaffety, 588 F.3d at 1146.
This claim is also unpersuasive on the merits. The Illinois Appellate Court
did not unreasonably apply Cuyler v. Sullivan, 446 U.S. 335 (1980), and its decision
was not contrary to Sullivan. The court rejected Wilkerson’s claim as to trial
counsel’s past representation of Senica because it found that any joint
representation conflict was cured when trial counsel began to represent Torray only.
Wilkerson, 63 N.E.3d at 941. And the court rejected the claim as to Senica’s
payment of Torray’s trial counsel because (1) Torray was aware of and consented to
the payment and (2) the payment arrangement had no adverse impact on trial
counsel’s performance. Id.
The Appellate Court cited Illinois law on conflicts of interest in addressing
Wilkerson’s claim. Id. at 940–41. Illinois law divides conflict-of-interest claims into
two categories: per se conflict and actual conflict. Id. (citing People v. Austin M.,
975 N.E.2d 22, 41 (Ill. 2012)). Per se conflicts merit automatic reversal under
Illinois law. Id. But Wilkerson’s state appellate briefing did not argue that trial
counsel had a per se conflict. See [7-2] at 32–34. Actual conflict claims, by contrast,
require a showing that (1) an actual conflict existed and (2) the conflict adversely
affected the lawyer’s performance. Wilkerson, 63 N.E.3d at 941; see also Sullivan,
446 U.S. at 348 (same). The Appellate Court concluded that Senica’s paying
Torray’s legal bills had no adverse impact on trial counsel’s performance.
Wilkerson, 63 N.E.3d at 941. It reasoned that the strategic choice to attack Officer
Mingari’s vantage point rather than shift responsibility for the drugs to Senica was
a sound trial strategy. Id. The court further noted that Torray was aware of this
strategy and agreed to pursue it. Id.
The Appellate Court decision was not an unreasonable application of
Sullivan. In Sullivan, the Supreme Court held that to establish a violation of the
Sixth Amendment, “a defendant who raised no objection at trial must demonstrate
that an actual conflict of interest adversely affected his lawyer’s performance.” Id.
at 348. 4 Though the Illinois Appellate Court did not cite Sullivan, it applied the
correct standard, so its decision is still entitled to AEDPA deference. See Packer,
537 U.S. at 8; Mosley, 689 F.3d at 844.
Conflict due to past representation. The Supreme Court’s cases have left open
the question whether past representation can cause a disabling conflict in certain
circumstances. See Mickens v. Taylor, 535 U.S. 162, 174–76 (2002). In fact, the
Wilkerson did not object to counsel’s past representation of Senica or the fact that Senica
was paying his legal bills (in fact, he directed trial counsel to collect the fees from Senica),
so Sullivan applies, not Holloway v. Arkansas, 435 U.S. 475 (1978). See Reynolds v. Hepp,
902 F.3d 699, 707 (7th Cir. 2018).

4

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Court has never held that Sullivan (as opposed to Strickland) applies where the
alleged conflict is due to past representation. See Mickens, 535 U.S. at 175 (quoting
Sullivan, 446 U.S. at 350). Assuming Sullivan applies, Wilkerson must show that
counsel “actively represented” conflicting interests. Id. (quoting Sullivan, 446 U.S.
at 350) (emphasis in Mickens). The Appellate Court held that no actual conflict
existed because it was cured by Senica obtaining his own lawyer and the brothers
having separate representation during the trial. Wilkerson, 63 N.E.3d at 941. That
conclusion was a reasonable application of Sullivan, especially in light of the
Supreme Court’s decision in Mickens leaving open the question of Sullivan’s reach
in successive-representation cases. See Mickens, 535 U.S. at 174–76.
Conflict due to source of payment. As to the claim that trial counsel had a
conflict because Senica paid trial counsel for Torray’s representation, Torray points
to no Supreme Court case holding that payment of a lawyer by a codefendant
constitutes a disabling conflict. Cf. Reynolds v. Hepp, 902 F.3d 699, 707 (7th Cir.
2018) (“the Supreme Court has not yet extended its multiple-representation
decisions to financial conflicts of interest between attorney and client, let alone
provided clear guidance as to whether or under what circumstances [such a conflict]
violates a defendant’s right to counsel”). The dearth of Supreme Court precedent on
this point means that no clearly established federal law existed that the state court
could have unreasonably applied. Id.; see Carey v. Musladin, 549 U.S. 70, 77 (2006).
Even framing the Sullivan “actual conflict” inquiry at a higher level of
generality and assuming Senica’s payment constituted a conflict, the Appellate
Court reasonably held that the conflict did not adversely affect trial counsel’s
performance. Wilkerson, 63 N.E.3d at 941. At the outset, the scope of the phrase
“adverse effect” is not clear in the Supreme Court’s cases, thus making it nearly
impossible for a state court to unreasonably apply a “clearly established” rule.
See Reynolds, 902 F.3d at 710 (quoting Beets v. Scott, 65 F.3d 1258, 1265 (5th Cir.
1995) (en banc)); see also Musladin, 549 U.S. at 77. The Seventh Circuit’s test for
an adverse effect from Stoia v. United States, 22 F.3d 766 (7th Cir. 1994), is
whether “but for the attorney’s actual conflict of interest there is a reasonable
likelihood that counsel’s performance somehow would have been different.” Id. at
771 (citation and internal quotation marks omitted); see also Burkhart v. United
States, 27 F.4th 1289, 1295 (7th Cir. 2022). But as the Seventh Circuit explained in
Reynolds, Stoia’s broad test is not binding on state courts due to AEDPA, which
only requires state courts to reasonably apply clearly established federal law as
determined by the United States Supreme Court. Reynolds, 902 F.3d at 710. As far
as the court can discern, the Seventh Circuit has never applied Stoia in a § 2254
case. Wilkerson does not cite one. [1] at 6, 12; [9] at 1–4.
The Illinois Appellate Court reasonably took a narrower approach than Stoia
when assessing the adverse effect here, focusing on whether the alleged conflict’s
effect was truly “adverse” and highlighting Wilkerson’s acquiescence in trial
counsel’s strategic choices. Wilkerson, 63 N.E.3d at 941. The record lacks evidence
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of any connection between trial counsel’s strategic choices and Senica’s paying
Torray’s legal bills. Torray was aware of trial counsel’s planned defense strategy
and agreed to it. See [7-8] at 163–65. And it was a reasonable strategy within the
wide latitude the Sixth Amendment affords to counsel’s strategic decisions. See,
e.g., Dunn, 141 S. Ct. at 2411; Part II, supra.
Nothing in the record, including the examination of trial counsel in the state
evidentiary hearing, indicates that trial counsel chose the vantage-point strategy
over one that would shift responsibility to Senica because Senica was paying trial
counsel. See [7-8] at 163–65, 169–72, 179, 183–84, 186, 191–94; cf. Blake v. United
States, 723 F.3d 870, 882 (7th Cir. 2013) (examining record to determine whether
defense counsel’s actions were motivated by an alleged conflict). Trial counsel
testified that he chose the vantage-point strategy because he thought it was the best
chance for his client to be found not guilty; even after trial, he thought that
Wilkerson should have been found not guilty. [7-8] at 164. On questioning by the
state’s attorney, trial counsel testified that Torray not only consented to Senica’s
paying for Torray’s representation, but directed trial counsel to obtain the fees from
Senica. Id. at 194. The Appellate Court reasonably applied Sullivan when holding
that Senica’s paying Torray’s trial counsel’s fees did not adversely affect trial
counsel’s performance.
Wilkerson’s third claim thus does not warrant habeas relief.
IV.

Certificate of Appealability

In federal habeas cases, petitioners may not appeal unless a judge issues a
certificate of appealability. 28 U.S.C. § 2253(c)(1); see Buck v. Davis, 580 U.S. 100,
115 (2017). To obtain a certificate, a petitioner must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner
satisfies this standard by demonstrating that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Wilkerson has not made
the requisite showing.
Wilkerson’s claims are undeveloped and thus forfeited. See Holm, 326 F.3d
at 877. On the merits, no reasonable jurist could conclude that the Illinois
Appellate Court’s resolution of any of the claims was contrary to or an unreasonable
application of clearly established federal law as determined by the Supreme Court
of the United States. Therefore, the court declines to issue a certificate of
appealability.

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CONCLUSION
The petition for a writ of habeas corpus [1] is denied. Enter final judgment.
Civil case terminated.
Dated: August 25, 2023

/s/ Martha M. Pacold

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