Shannon v. Pollard

Filing 48

ORDER signed by Judge J P Stadtmueller on 7/1/2020: DENYING 1 Petitioner's Petition for Writ of Habeas Corpus; DENYING Certificate of Appealability; and DISMISSING CASE with prejudice. See Order. (cc: all counsel, via mail to Terry S Shannon at Waupun Correctional Institution)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
TERRY S. SHANNON,
Petitioner,
v.
WILLIAM J. POLLARD,

Case No. 14-CV-980 -JPS-JPS

ORDER

Respondent.
On August 11, 2014, Petitioner filed a petition for a writ of habeas
corpus. (Docket #1). The case was stayed and held in abeyance for over
three and a half years while Petitioner exhausted his remedies in state court.
See (Docket #30). When the stay was finally lifted, Petitioner did not comply
with the Court’s deadlines, resulting in various delays, including a default
judgment that was ultimately vacated. See (Docket #36, #38, #43). Petitioner
finally filed a brief in support of his petition for habeas corpus on June 18,
2018. (Docket #41). Respondent timely opposed the petition, (Docket #45),
and Petitioner failed to reply. See (Docket #46) (letter from Petitioner stating
that he would miss his reply deadline because his jailhouse lawyer had been
transferred to another facility, taking with him Petitioner’s legal
documents). Since then, despite having ample time, there has been
absolutely no word from Petitioner. The Court will, therefore, address the
merits of the case.
Petitioner brings this petition for a writ of habeas corpus to challenge
a state court homicide conviction arising from Racine County Circuit Court
Case Number 2006CF594. He proceeds on the following grounds for relief:
First, that the jury should have been properly instructed on the issue of self-

defense; second, that his trial and appellate counsel were ineffective for
failing to request proper jury instructions and failing to raise that issue on
appeal. See (Docket #27 at 6–7).1 For the reasons explained below,
Petitioner’s habeas petition will be denied, and this action will be
dismissed.
1.

STANDARD OF REVIEW
State criminal convictions are generally considered final. Review

may be had in federal court only on limited grounds. To obtain habeas relief
from a state conviction, 28 U.S.C. § 2254(d)(1) (as amended by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”)) requires the
petitioner to show that the state court’s decision on the merits of his
constitutional claim was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the United
States Supreme Court. 28 U.S.C. § 2254(d)(1); Brown v. Payton, 544 U.S. 133,
141 (2005). The burden of proof rests with the petitioner. Cullen v. Pinholster,
563 U.S. 170, 181 (2011). The relevant decision for this Court to review is
that of the last state court to rule on the merits of the petitioner’s claim.
Charlton v. Davis, 439 F.3d 369, 374 (7th Cir. 2006).
A state-court decision runs contrary to clearly established Supreme
Court precedent “if it applies a rule that contradicts the governing law set
forth in [those] cases, or if it confronts a set of facts that is materially
indistinguishable from a decision of [the Supreme] Court but reaches a
different result.” Brown, 544 U.S. at 141. Similarly, a state court

The Court also identified claims regarding trial counsel’s failure to file a
Brady motion and the government’s failure to divulge Brady materials; however,
Plaintiff’s brief in support of his petition did not address these issues at all, so the
Court does not address them here.
1

Page 2 of 19

unreasonably applies clearly established Supreme Court precedent when it
applies that precedent to the facts in an objectively unreasonable manner.
Id.; Bailey v. Lemke, 735 F.3d 945, 949 (7th Cir. 2013).
The AEDPA undoubtedly mandates a deferential standard of
review. The Supreme Court has “emphasized with rather unexpected
vigor” the strict limits imposed by Congress on the authority of federal
habeas courts to overturn state criminal convictions. Price v. Thurmer, 637
F.3d 831, 839 (7th Cir. 2011). It is not enough for the petitioner to prove the
state courts were wrong; he must also prove they acted unreasonably.
Harrington v. Richter, 562 U.S. 86, 101 (2005); Campbell v. Smith, 770 F.3d 540,
546 (7th Cir. 2014) (“An ‘unreasonable application of’ federal law means
‘objectively unreasonable, not merely wrong; even ‘clear error’ will not
suffice.’”) (quoting White v. Woodall, 572 U.S. 415, 419 (2014)).
Indeed, the petitioner must demonstrate that the state court decision
is “so erroneous that ‘there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the Supreme] Court’s
precedents.’” Nevada v. Jackson, 569 U.S. 505, 508–09 (2013) (quoting
Harrington, 562 U.S. at 102). The state court decisions must “be given the
benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002); Hartjes v.
Endicott, 456 F.3d 786, 792 (7th Cir. 2006). Further, when a state court applies
general constitutional standards, it is afforded even more latitude under the
AEDPA in reaching decisions based on those standards. Knowles v.
Mirzayance, 556 U.S. 111, 123 (2009); Yarborough v. Alvarado, 541 U.S. 652, 664
(2004) (“[E]valuating whether a rule application was unreasonable requires
considering the rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.”).

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As the Supreme Court has explained, “[i]f this standard is difficult
to meet, that is because it was meant to be.” Harrington, 562 U.S. at 102.
Indeed, Section 2254(d) stops just short of “imposing a complete bar on
federal-court relitigation of claims already rejected in state proceedings.”
See id. This is so because “habeas corpus is a ‘guard against extreme
malfunctions in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Id. at 102–03 (quoting Jackson v.
Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring)).
A federal court may also grant habeas relief on the alternative
ground that the state court’s adjudication of a constitutional claim was
based upon an unreasonable determination of the facts in light of the
evidence presented. 28 U.S.C. § 2254(d)(2). The underlying state court
findings of fact and credibility determinations are, however, presumed
correct. Newman v. Harrington, 726 F.3d 921, 928 (7th Cir. 2013). The
petitioner overcomes that presumption only if he proves by clear and
convincing evidence that those findings are wrong. 28 U.S.C. § 2254(e)(1);
Campbell, 770 F.3d at 546. “A decision ‘involves an unreasonable
determination of the facts if it rests upon factfinding that ignores the clear
and convincing weight of the evidence.’” Bailey, 735 F.3d at 949–50 (quoting
Goudy v. Basinger, 604 F.3d 394, 399–400 (7th Cir. 2010)). “‘[A] state-court
factual determination is not unreasonable merely because the federal
habeas court would have reached a different conclusion in the first
instance.’” Burt v. Titlow, 571 U.S. 12, 18 (2013) (quoting Wood v. Allen, 558
U.S. 290, 301 (2010)). If shown, an unreasonable factual determination by
the state court means that this Court must review the claim in question de
novo. Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008).

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2.

RELEVANT BACKGROUND
2.1

Factual Background

On May 7, 2006, Benny Smith (“Smith”) and three of his friends
(collectively, “the Group”) were on their way home from a nightclub in
Racine, Wisconsin. The Group had just exchanged numbers with two
women, Tamara Miller (“Miller”) and Shenita Whitnell (“Whitnell”), with
whom they intended to meet up later in the night. First, however, the Group
stopped in the parking lot of an International House of Pancakes (“IHOP”).
During this detour to the IHOP parking lot, Smith saw Shannon, the
petitioner in this case. Smith and Shannon knew each other and exchanged
heated words.
Shortly thereafter, the Group left the IHOP parking lot in order to
meet up with Miller and Whitnell on College Avenue. The Group waited
for the women in a vehicle, which was driven by Smith. Miller and Whitnell
arrived at the meeting point on College Avenue, and Miller approached the
Group’s vehicle. As she did, another car, driven by Shannon and his brother
Antonio, pulled up next to the Group’s vehicle. Shots were immediately
fired. Forensic evidence later revealed that three guns were involved, and
shots were fired from both vehicles. Smith was shot in the head and died.
Shannon and Antonio were charged with Smith’s murder.
2.2

Procedural Background

The Shannon brothers were each offered, and accepted, a plea to
second-degree reckless homicide. However, shortly before they were to be
sentenced, they each withdrew their pleas, claiming ineffective assistance
of counsel. The state court permitted the withdrawal, and the parties
proceeded to trial on first-degree intentional homicide charges under Wis.
Stat. § 940.01.
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At trial, Shannon’s theory of the case was that he did not shoot Smith
and was not guilty of first-degree homicide; he contended that one of the
people in Smith’s own vehicle shot him. In the alternative, Shannon claimed
that if he did shoot Smith, it was because Shannon reasonably believed that
he was in danger of imminent death or great bodily harm and also
reasonably believed that deadly force was necessary to prevent the
imminent death or great bodily harm. This is known as an assertion of
“complete self-defense”—if the jury found that Shannon’s beliefs were
reasonable, then his first-degree homicide charge would be completely
excused. Wis. Jury Instructions – Crim. 805; Wis. Stat. § 939.48(1).
The Court pauses here to provide some context regarding
Wisconsin’s statutory scheme for homicide and self-defense, as it is the
source of considerable confusion in the petitioner’s briefing. First-degree
intentional homicide, which Shannon was charged with, occurs where an
accused “causes the death of another human being with intent to kill that
person or another.” Wis. Stat. § 940.01(1)(a). Second-degree intentional
homicide carries the same requirement, but is available where, “the state
fails to prove beyond a reasonable doubt [or otherwise concedes] that the
mitigating circumstances specified in s[ection] 940.01(2) did not exist.” Wis.
Stat. § 940.05(1). Second-degree intentional homicide is not to be confused
with second-degree reckless homicide, which Shannon was originally
offered as a plea, and which occurs if an individual “recklessly causes the
death of another human being.” Wis. Stat. § 940.06(1).
The circumstances under which a first-degree intentional homicide
offense would be decreased to a second-degree intentional homicide
offense are as follows: (1) adequate provocation; (2) unnecessary defensive
force; (3) the prevention of a felony; and (4) coercion or necessity. Wis. Stat.
Page 6 of 19

§ 940.01(2). In other words, if a defendant “cause[d] the death of another
human being with intent to kill that person,” but one of the four
enumerated mitigating circumstances existed, then that person should be
convicted of second-degree intentional homicide, rather than first-degree
intentional homicide. Wis. Stat. §§ 940.01(1)(a), (2); 940.05. “The difference
between the two degrees of [intentional] homicide is the presence or
absence of mitigating circumstances.” State v. Head, 648 N.W.2d 413, 429
(Wis. 2002).
Although the statute provides for four different mitigating
circumstances, in this case, only the “unnecessary defense force” mitigation
comes into play. This can be characterized as a “partial self-defense.” As
discussed above, complete self-defense to first-degree intentional homicide
exists if the defendant reasonably believed that his life or limb were in
danger and reasonably believed that deadly force was necessary to avoid
that risk. Wis. Stat. § 939.48(1); Head, 648 N.W.2d at 429. By contrast, partial
self-defense to first-degree intentional homicide—one that would decrease
first-degree intentional homicide to second-degree intentional homicide—
exists if the defendant actually believed that he was in imminent danger and
actually believed that deadly force was necessary, even if that belief was
objectively unreasonable. Wis. Stat. § 940.01(2)(b). In other words, if a jury
determined that either of defendant’s beliefs were ridiculous but honestly
held, then his culpability would be deemed mitigated and he should be
convicted of second-degree intentional homicide.
As the discussion above demonstrates, a second-degree intentional
homicide conviction directly follows from a mitigating circumstance, and
in this case, the potential mitigating circumstance would have been
unnecessary defense force—which the Court has described as “partial selfPage 7 of 19

defense.” Wis. Stat. § 940.05(1). Thus, in order for the jury to have properly
considered a partial self-defense instruction, it must have been able to
convict on second-degree intentional homicide. In this case, however,
Shannon did not request that second-degree intentional homicide be
included on the verdict form (a practice known as requesting the jury to
consider the “lesser included offense”). This meant that the jury was not
instructed on second-degree intentional homicide, and therefore had no
occasion to consider any mitigating circumstances.
At the jury instruction conference, Shannon’s attorney told the trial
court that he had discussed with his client the ramifications of failing to
request the “lesser included offense” on the verdict form, and that they
were firm on their conviction to “go for broke” on the first-degree homicide
charge. See State v. Shannon, 2015AP922, 2016 WL 7177463, at *2 (Wis. Ct.
App. Dec. 7, 2016). At trial, the jury found Shannon guilty of first-degree
murder. The jury found that the complete defense did not apply.
After a few procedural detours, Shannon filed a post-conviction
motion regarding the jury instructions in his case. Shannon’s primary
argument demonstrates much confusion: he repeatedly contends that a
partial self-defense instruction should have been given, without regard for
the fact that this would only have been proper if he had also requested a
second-degree intentional homicide charge. This argument led the state
courts to consider the issue as part of his ineffective assistance of counsel
claims for failing to request a second-degree intentional homicide charge,
and for failing to raise the issue on appeal. However, folded into this claim
was an argument that the jury was not properly instructed on how to
consider the State’s burden with regard to the self-defense argument, in
violation of Shannon’s due process rights.
Page 8 of 19

A post-conviction hearing was held pursuant to State v. Machner, 285
N.W.2d 905, 908–09 (Wis. Ct. App. 1979), which is a prerequisite in
Wisconsin for a defendant to proceed on an ineffective assistance of counsel
claim on appeal. At the hearing, trial counsel testified that he had acted
strategically in deciding not to request the lesser-included offense in the
jury instruction, because it would have entailed including evidence of prior
shootings between the parties, which could have been prejudicial. See State
v. Shannon, 2016 WL 7177463, at *2. Moreover, trial counsel articulated a “go
for broke” approach with regard to the singular first-degree intentional
homicide charge, particularly in light of the fact that Shannon had
withdrawn his plea as to a second-degree reckless homicide charge. Id.
In light of the Machner hearing, the trial court determined that trial
counsel was not deficient for failing to request the second-degree
intentional homicide offense (and the subsequent mitigating instruction)
because there was a sound legal strategy undergirding the decision to only
request first-degree intentional homicide. Accordingly, post-conviction
counsel was not inadequate for failing to raise the issue on appeal. Shannon
appealed the decision, and the Wisconsin Court of Appeals affirmed the
trial court’s decision. Id. The Wisconsin Supreme Court denied review.
3.

ANALYSIS
3.1

Due Process Issue Regarding Jury Instructions

At the outset, the Court must determine whether Shannon
procedurally defaulted on his claim that his due process rights were
violated by the jury instructions presented at trial. (Docket #45 at 10–12).
This Court cannot consider Shannon’s habeas claim unless it has first been
“fully and fairly presented. . .to the state appellate courts,” thereby giving
the courts a “meaningful opportunity to consider the substance of the
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claim[] that he later presents in his federal challenge.” Bintz v. Bertrand, 403
F.3d 859, 863 (7th Cir. 2005); 28 U.S.C. § 2254(b)(1)(A). Fair presentment
requires that the petitioner apprise the state courts of the constitutional
nature of the claim, but it “does not require hypertechnical congruence
between the claims made in the federal and state courts; it merely requires
that the factual and legal substance remain the same.” Anderson v. Benik, 471
F.3d 811, 814–15 (7th Cir. 2006) (citation omitted). The Seventh Circuit
considers the following factors to determine whether the issue was
adequately presented to the state judiciary:
1) whether the petitioner relied on federal cases that engage
in a constitutional analysis; 2) whether the petitioner relied on
state cases which apply a constitutional analysis to similar
facts; 3) whether the petitioner framed the claim in terms so
particular as to call to mind a specific constitutional right; and
4) whether the petitioner alleged a pattern of facts that is well
within the mainstream of constitutional litigation.
Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001).
The Court finds that Shannon has not procedurally defaulted on the
issue of whether the state court failed to properly give self-defense
instructions in violation of his due process rights. Shannon devoted a
substantial portion of his state court submission to arguing that the jury
instructions did not require the State to meet its burden in disproving that
he acted in self-defense. See (Docket #34-8 at 6, 13, 15–16). Before this Court,
Shannon again raised the deficiency, contending that the jury instructions
were written in such a way that jurors were “at liberty to stop deliberating
and find Shannon guilty, notwithstanding the generic self-defense
instruction.” (Docket #41 at 7).

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Although Shannon did not identify any federal cases at the state
level discussing due process, he did refer to the issue of due process as it
related to the improper jury instructions before the state court. See (Docket
#34-8 at 3–4) (Shannon’s table of authorities, citing the Sixth Amendment
“due process” right regarding jury instructions). Moreover, Shannon’s
arguments before the state court clearly describe an issue with the
adequacy of the jury instructions, which is familiar enough to hearken a
due process violation. See e.g., Ross v. State, 211 N.2.2d 827, 833 (Wis. 1970)
(evaluating whether “the standard used for determining whether a lesser
included offense be submitted to the jury is. . .a denial of due process.”).
This sufficiently raises the specter of a due process violation, both before
the state court and this Court. (Docket #34-8 at 6–16); Perruquet v. Briley, 390
F.3d 505, 512 (7th Cir. 2004) (holding that a petitioner drew “enough of a
connection

between

his

right

to

due

process

and

the

trial

court’s. . .instructional errors” to state cognizable habeas claim). The Court
will therefore proceed with evaluating Shannon’s due process claim that
the jury was not properly instructed on his claim of self-defense.
Due process requires the state to “prove every element of the offense,
and a jury instruction violates due process if it fails to give effect to that
requirement.” Middleton v. McNeil, 541 U.S. 433, 437 (2004). However, “not
every ambiguity, inconsistency, or deficiency in a jury instruction rises to
the level of a due process violation.” Id. Rather, the instruction must have
been so woefully inadequate that it tainted the entire trial. Id. (citing Estelle
v. McGuire, 502 U.S. 62, 72 (1991)). Accordingly, courts must view the
deficiency “in the context of the overall charge.” Id. (citations and
quotations omitted). The burden on the petitioner is heavy—he must show
a “‘reasonable likelihood’ that the jury applied the instruction in a way that
Page 11 of 19

relieved the State of its burden of proving every element of the crime
beyond a reasonable doubt.” Waddington v. Sarausad, 555 U.S. 179, 191
(2009) (quoting Estelle, 502 U.S. at 72).
Here, much of Shannon’s argument is based on his mistaken
understanding of the law. He believes that a partial self-defense
instruction—without a second-degree intentional homicide instruction—
should have been given. However, as the Court’s discussion in Section 2.2
makes clear, this is simply not possible. The lack of instruction on partial
self-defense (which would have concerned what Shannon actually
believed) was in keeping with the fact that Shannon elected not to request
the lesser-included offense of second-degree intentional homicide. The
constitutionality of that legal tactic will be evaluated as an ineffective
assistance of counsel claim in Section 3.2, below. Suffice it to say, as far as
the fairness of the trial was concerned, the jury instructions were not an
issue.
To the extent that Shannon alleges that the jury members were not
properly instructed on the State’s burden regarding complete self-defense,
and were instructed in such a way as to preclude findings on the issue of
self-defense, (Docket #41 at 7–8), this argument is procedurally defaulted,
as it appears nowhere in Shannon’s state submissions. But this is no great
loss, as the argument is wholly without merit. The transcripts reflect that
the trial court appropriately and thoroughly advised the jury on the issue
of self-defense—including stating that a reasonable mistake still qualifies
as self-defense, and that the burden lies with the State to disprove selfdefense. (Docket #34-26 at 137:12–138:15). After explaining what complete
self-defense entailed and where the burden fell, the trial court instructed
that:
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If you are satisfied beyond a reasonable doubt that all the
elements of party to the crime of first degree intentional
homicide and discharging a firearm from a vehicle—and I
will read that instruction to you next—if those have been
proved and the defendant did not act lawfully in selfdefense, you should find the defendant guilty. If you are not
so satisfied, you must find the defendant not guilty.
Id. at 138:16–23. It is clear, from the trial transcript, the that jury was made
aware of the existence and details of the self-defense argument, the effect
that it would have on the first-degree homicide offense, and the fact that
the burden fell to the State to disprove it. The fact that the jury found
Shannon guilty means that they found that the State adequately disproved
the self-defense argument. While it may be true that the instructions could
have been clearer—perhaps with another, more explicit statement that the
self-defense argument completely excused the first-degree homicide
offense—the totality of the instructions are not so inadequate that they
relieved the State of the burden of proving its case beyond a reasonable
doubt. Waddington, 555 U.S. at 191.
Shannon also takes issue with the jury instructions regarding
whether he acted “lawfully in self-defense.” Shannon suggests that this
wording could prompt the jury to conclude that he could act “unlawfully”
in self-defense. This is an unnecessarily tortured reading of the jury
instructions, particularly because, prior to instructing the jury to determine
whether Shannon acted “lawfully in self-defense,” the trial court described
exactly what lawful self-defense entailed. In short, there was no due process
violation with the jury instructions.

Page 13 of 19

3.2

Ineffective Assistance of Counsel Claims

The Court of Appeal’s Blake opinion neatly summarizes the
standards applicable to Shannon’s claims of ineffective assistance:
A party asserting ineffective assistance of counsel
bears the burden of establishing two elements: (1) that his trial
counsel's performance fell below objective standards for
reasonably effective representation, and (2) that counsel's
deficiency prejudiced the defense. Strickland v. Washington,
466 U.S. 668, 687–88 . . . (1984)[.]
To satisfy the first element of the Strickland test,
appellant must direct the Court to specific acts or omissions
by his counsel. In that context, the Court considers whether in
light of all the circumstances counsel’s performance was
outside the wide range of professionally competent
assistance. The Court’s assessment of counsel’s performance
is “highly deferential[,] . . . indulg[ing] a strong presumption
that counsel’s conduct falls within the wide range of
reasonable professional assistance[.]” [Id. at 689.]
...
To satisfy the second Strickland element, appellant
must show that there is a reasonable probability that, but for
counsel’s errors, the result of the proceedings would have
been different, such that the proceedings were fundamentally
unfair or unreliable. A reasonable probability is defined as
one that is sufficient to undermine confidence in an outcome.
Blake v. United States, 723 F.3d 870, 879 (7th Cir. 2013) (citations and
quotations omitted).
The Strickland test, layered underneath the above-described
standard of review, produces the following question for the Court to
answer: whether the Wisconsin Court of Appeals’ ruling on Shannon’s
claims represents an unreasonable application of the already extremely
deferential Strickland standard. Harrington, 562 U.S. at 101. As Blake
explains, claims of ineffective assistance are already assessed with

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deference to the defendant’s counsel. Presenting such claims in the context
of a habeas proceeding means that Shannon must not only prove that the
Wisconsin Court of Appeals’ analysis was wrong, but additionally that it
was “so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fair-minded
disagreement.” Id. at 103; id. at 105 (“The standards created by Strickland
and § 2254(d) are both highly deferential, and when the two apply in
tandem, review is doubly so[.]”) (citations and quotations omitted). To the
extent Shannon seeks to show that the Wisconsin Court of Appeals’
decision was based on an “unreasonable determination of the fact” under
28 U.S.C. 2254(d)(2), he must do more than merely show that the evidence
is debatable. Wood v. Allen, 558 U.S. 290, 303 (2010). He most show that “the
state court determined an underlying factual issue against the clear and
convincing weight of the evidence.” Ben-Yisrayl v. Buss, 540 F.3d 542, 549
(7th Cir. 2008). Additionally, in the context of a Strickland analysis, he must
show that this unreasonable evidentiary finding resulted in prejudice. Id. at
550.
Shannon’s arguments do not carry the burden on this issue. He asks
the Court to find that it was an error for his trial counsel to fail to include
the partial self-defense jury instruction but, as the preceding discussion of
Wisconsin law in Section 2.2 makes clear, the partial self-defense instruction
is only available if the parties request a finding on the lesser-included
offense. The Wisconsin Court of Appeals reviewed the record from the trial
court, which included transcripts of the trial and post-conviction hearings,
and determined that it was sound trial strategy not to request the lesserincluded offense. Specifically, it provided the following analysis:

Page 15 of 19

While evidence did exist to support the assertion of imperfect
self-defense, Shannon purposely and strategically decided,
with advice of counsel, not to assert the affirmative defense of
imperfect self-defense. . . Where a defendant, as a matter of
strategy, does not request a lesser-included offense, the
defendant cannot later claim error in the instructions. . . An
“all-or-nothing” approach has been recognized in Wisconsin
courts as a reasonable strategic decision whereby defense
counsel excludes a lesser-included offense to force the jury
into an acquittal by denying them a second option to
convict. . . A defendant has a right to “go-for-broke” or
employ an “all-or-nothing” defense, but if that strategic
decision fails, it is not deficient performance. . .
Shannon's primary strategy to the State's charge of firstdegree intentional homicide was to show that someone in
Smith's car caused Smith's death; his secondary strategy was
that even if he caused Smith's death, it occurred under the
privilege of perfect self-defense, i.e., that he reasonably
believed his life was in imminent danger and he reasonably
believed that it was necessary to use force which was
intended or likely to cause death. If Shannon had been
successful on either strategy, he would have walked out of the
courtroom a free man.
Shannon was aware of and considered his right to have
second-degree intentional homicide on the verdict. Shannon
agreed with the advice of his counsel and chose an “all-ornothing” strategy of going to trial solely on first-degree
intentional homicide. Shannon's strategy was to beat the
charge of first-degree intentional homicide by convincing the
jury that the State did not meet its burden to prove that
Shannon caused the death of Smith. Shannon's secondary
strategy, that he acted in perfect self-defense, was also
reasonable given the amount of gunfire coming out of the
Smith vehicle.
2016 WL 7177463, at *3–*4 (citations and quotations omitted).
On review of the Wisconsin Court of Appeals’ analysis of the case,
the Court cannot say that it erred in concluding that trial and appellate
Page 16 of 19

counsel acted reasonably under Strickland. Certainly, in his briefing before
this Court, Shannon is demonstrably confused about when partial selfdefense can be requested. But the record supports a conclusion that
Shannon agreed to the decision not to request the lesser-included offense as
part of the trial strategy. (Docket #34-28 at 61:7–14). And—crucially—
Wisconsin state courts hold that this is type of strategy is legitimate and
reasonable. State v. Kimbrough, 630 N.W.2d 752, 760 (Wis. Ct. App. 2001).
Therefore, the decision not to request the partial self-defense was
appropriate, because it was part of the larger strategy to “go for broke.” The
record does not reveal unreasonable conduct on the part of the trial attorney
that would give rise to a Sixth Amendment violation—consequentially,
there is no basis for liability on the part of post-conviction counsel for failing
to raise the issue of ineffective assistance of counsel.
4.

CONCLUSION
For the reasons explained above, the Court finds that Petitioner’s

asserted grounds for relief are without merit. The Wisconsin state courts
did not err in their conclusions of law and fact regarding trial counsel’s
failure to raise the partial self-defense instruction, and appellate counsel’s
failure to raise that issue on appeal. Nor is there any evidence in the record
to support a claim that Petitioner’s due process rights were violated by the
jury instructions.
Under Rule 11(a) of the Rules Governing Section 2254 Cases, “the
district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.” To obtain a certificate of
appealability under 28 U.S.C. § 2253(c)(2), Petitioner must make a
“substantial showing of the denial of a constitutional right” by establishing
that “reasonable jurists could debate whether (or, for that matter, agree
Page 17 of 19

that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). As the Court discussed above, no reasonable jurists could debate
whether the petition has merit. The Court must, therefore, deny Petitioner
a certificate of appealability.
Finally, the Court closes with some information about the actions
that Petitioner may take if he wishes to challenge the Court’s resolution of
this case. This order and the judgment to follow are final. A dissatisfied
party may appeal this Court’s decision to the Court of Appeals for the
Seventh Circuit by filing in this Court a notice of appeal within 30 days of
the entry of judgment. See Fed. R. App. P. 3, 4. This Court may extend this
deadline if a party timely requests an extension and shows good cause or
excusable neglect for not being able to meet the 30-day deadline. See Fed. R.
App. P. 4(a)(5)(A). Moreover, under certain circumstances, a party may ask
this Court to alter or amend its judgment under Federal Rule of Civil
Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil
Procedure 60(b). Any motion under Federal Rule of Civil Procedure 59(e)
must be filed within 28 days of the entry of judgment. The Court cannot
extend this deadline. See Fed. R. Civ. P. 6(b)(2). Any motion under Federal
Rule of Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the judgment. The Court
cannot extend this deadline, either. See id. A party is expected to closely
review all applicable rules and determine what, if any, further action is
appropriate in a case.

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Accordingly,
IT IS ORDERED that Petitioner’s petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (Docket #1) be and the same is hereby
DENIED;
IT IS FURTHER ORDERED that a certificate of appealability as to
Petitioner’s petition be and the same is hereby DENIED; and
IT IS FURTHER ORDERED that this action be and the same is
hereby DISMISSED with prejudice.
The Clerk of the Court is directed to enter judgment accordingly.
Dated at Milwaukee, Wisconsin, this 1st day of July, 2020.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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