In the
United States Court of Appeals
For the Seventh Circuit
No. 07-2628
H ERBERT JOHNSON, S R.,
Petitioner-Appellant,
v.
M ICHAEL T HURMER,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 1:04-cv-00795—Patricia J. Gorence, Magistrate Judge.
A RGUED JANUARY 14, 2009—D ECIDED O CTOBER 18, 2010
Before C UDAHY, K ANNE, and T INDER, Circuit Judges.
K ANNE, Circuit Judge. Herbert Johnson was charged
with five counts of armed robbery in Wisconsin state
court, convicted by a jury, and sentenced to sixty-eight
years in prison. After Johnson’s no-merit appeal con-
cluded, he attempted to traverse the murky waters of
state collateral attack, bringing new claims of ineffective
assistance of trial and appellate counsel. The state courts
held that Johnson’s new claims were procedurally de-
2 No. 07-2628
faulted because he had not raised them in response to
the initial no-merit report. Johnson then filed a writ of
habeas corpus in the United States District Court for the
Eastern District of Wisconsin, again asserting ineffective
assistance of trial and appellate counsel. The district
court denied the writ on the merits, but only after
holding that the Wisconsin court ruling of procedural
default was not an adequate and independent state
ground barring federal review. Johnson now appeals
the denial of the writ. We agree with the district court’s
ruling that habeas review was not precluded by state
procedural default. Because Johnson’s ineffective assis-
tance of counsel claims lack merit, we affirm the denial
of the writ.
I. B ACKGROUND
In the muggy July and August of 1999, five similar
robberies occurred throughout greater Milwaukee, four
at various Payless Shoes stores and one at an area
Family Dollar. During each robbery, two men entered the
store, ostensibly as shoppers, and one eventually ap-
proached an employee with a gun and demanded
money. Police came to suspect Johnson as the gunman
of this pair when he reentered a store he had already
robbed and was recognized by one of the employees,
who recorded his license number and advised the au-
thorities. Based on that tip, police located and arrested
Johnson. They then searched the common areas of his
residence with his girlfriend’s consent, finding clothing
and other items used in the robberies. Police also con-
No. 07-2628 3
ducted an in-person lineup, where Johnson was identi-
fied as the gunman by witnesses to each crime.
Counsel was appointed for Johnson, an event that
marked the beginning of a rocky relationship between
Johnson and his counsel in general. Trial preparation
proceeded uneventfully, at least until the week before
trial. At that point, Johnson’s counsel reported to the
judge’s clerk that he had an appointment to see a psychia-
trist on the day of trial and, in doing so, made a state-
ment that led the clerk to believe that he may have
been suicidal. On the morning scheduled for trial, an
in-chambers conference was held concerning counsel’s
remarks. Johnson was not present at that conference.
During that meeting, counsel reported that the clerk had
misunderstood him and that he was not suicidal. He
admitted to being on medication for depression, but
said he felt fine and was able to proceed. The following
day, the state trial judge provided a verbal summary of
the in-chambers conference to Johnson, confirmed that
counsel had discussed the matter with him, and verified
that Johnson wished to continue.
Trial commenced that same day, with the bulk of the
State’s case consisting of witnesses who identified
Johnson as the gunman at each of the robberies. One
witness, Jessica Zaccone, identified Johnson as the man
who robbed her store and provided a description of
Johnson from the day of the robbery. In her testimony,
Zaccone included one detail about Johnson’s appear-
ance that she had not reported to police in reference to
the charged robbery. That detail was actually from a
4 No. 07-2628
description of Johnson regarding a second, uncharged
robbery at the same store. Defense counsel failed to
object or have the testimony stricken, even though testi-
mony relating to uncharged crimes was prohibited by
court order. Defense counsel did file a motion for a
mistrial based on Zaccone’s testimony at the conclusion
of the State’s case. That motion was denied.
Johnson was found guilty by a jury on all counts, sen-
tenced, and counsel was appointed to represent him on
appeal. Appellate counsel filed a no-merit report with
the Wisconsin Court of Appeals pursuant to Wis. Stat.
§ 809.32. In his report, counsel identified four issues of
arguable merit; notably, counsel did not identify any
ineffective assistance of trial counsel. After Johnson
failed to respond to the report, the Court of Appeals
examined the issues identified in the report and con-
ducted an independent review of the record. The court
found no issues of merit and affirmed Johnson’s con-
viction. The Wisconsin Supreme Court later denied John-
son’s petition for review.
Johnson then began state collateral attack, filing a
motion for post-conviction relief pursuant to Wis. Stat.
§ 974.06. Johnson raised two new claims: one for inef-
fective assistance of trial counsel, for various trial errors,
and one for ineffective assistance of appellate counsel, for
not addressing trial counsel’s errors in the no-merit
report. The Wisconsin circuit court denied the petition,
holding both claims were defaulted because they related
to errors by trial counsel and, thus, should have been
raised in response to the no-merit report. Johnson ap-
No. 07-2628 5
pealed, now claiming there was sufficient cause for his
failure to respond to the no-merit report, as his appellate
counsel did not provide record documents in a timely
fashion. The Wisconsin Court of Appeals affirmed,
holding that the claims were defaulted and that the
failure to provide documents was not a sufficient reason
to set aside that default. The Wisconsin Supreme Court
again denied review.
Johnson then filed a writ of habeas corpus in the
United States District Court for the Eastern District of
Wisconsin pursuant to 28 § U.S.C. 2254, claiming inef-
fective assistance of appellate and trial counsel. The
district court found Johnson’s claims were not defaulted
because the state court ruling was not an adequate and
independent procedural ground barring federal review.
The court then held that Johnson’s claims lacked merit
and denied the writ, but granted Johnson a certificate
of appealability for both of his ineffective assistance of
counsel claims. Johnson timely appealed.
II. A NALYSIS
A. Procedural Default
We must first determine whether Johnson’s ineffective
assistance of counsel claims were procedurally defaulted.
The district court held they were not, and we review a
determination of procedural default de novo. Holmes v.
Hardy, 608 F.3d 963, 967 (7th Cir. 2010). If a claim was
held to be defaulted by a state court on the basis of an
adequate and independent procedural ground, federal
6 No. 07-2628
habeas review is at an end unless a petitioner can show
cause for the default and prejudice attributable thereto.
Harris v. Reed, 489 U.S. 255, 262 (1989). A state procedural
ground is independent if it was expressly relied on by
the state court in rejecting the claim, and it is adequate
if it is a clearly established and consistently followed
state practice at the time it is applied. Ford v. Georgia,
498 U.S. 411, 423-24 (1991); Smith v. McKee, 598 F.3d
374, 382 (7th Cir. 2010). Procedure applied in an unprin-
cipled, inconsistent, or freakish manner is inadequate
and will not preclude federal habeas review. Barksdale v.
Lane, 957 F.2d 379, 382 (7th Cir. 1992); Prihoda v.
McCaughtry, 910 F.2d 1379, 1383 (7th Cir. 1990).
In finding that Johnson’s ineffective assistance of
counsel claims were not defaulted, the district court
relied on our holding in Page v. Frank, 343 F.3d 901 (7th
Cir. 2003). In Page, a similarly situated Wisconsin
prisoner attempted to raise a claim of ineffective assist-
ance of counsel on state collateral attack. The Wisconsin
courts held that the claim was defaulted because it
was capable of being raised in response to the earlier
no-merit report but was not raised at that time. We
held that the default was not based on an adequate
state ground because of various inconsistencies in Wis-
consin’s appellate procedure. On one hand, Wisconsin
courts held that ineffective assistance of counsel claims
were defaulted if they related to trial conduct and were
not brought in response to the no-merit report. On the
other, the state courts required ineffective assistance
claims that dealt with trial errors to be raised in a
separate post-conviction motion in the trial court prior
No. 07-2628 7
to the no-merit appeal or they were waived. In essence,
Wisconsin rulings of default were not based on an ade-
quate state ground barring federal habeas review be-
cause Wisconsin procedure required the petitioner to
travel an inconsistent and confusing path by asserting
“a claim before the court of appeals that, under estab-
lished Wisconsin case law, he could not bring initially
in that forum because it had not been brought to the
attention of the trial court.” Id. at 909.
Those inconsistencies relevant in Page were also
present when Johnson sought Wisconsin state review.
To determine whether a state procedural ground is ade-
quate, we assess the ground as it existed when it was
applied by the state courts. Ford, 498 U.S. at 424; McKee,
598 F.3d at 382; Franklin v. Gilmore, 188 F.3d 877, 882 (7th
Cir. 1999). Tellingly, if Johnson had responded to the no-
merit report claiming that his appellate counsel was
deficient for not addressing trial counsel’s errors, he would
have been subject to the same Catch-22 that we found
dispositive in Page, among other problems.1
1
In Page, we relied on another reason, also applicable here,
why a criminal defendant could not waive a claim in the
manner suggested by the Wisconsin courts. A criminal defen-
dant possesses a Sixth Amendment right to effective assist-
ance of counsel throughout his first appeal as of right. Evitts
v. Lucey, 469 U.S. 387, 396 (1985). The Supreme Court has
made clear that there is a presumption against finding a
waiver of the right to counsel and that ordinarily waivers
must reflect “an intentional relinquishment or abandonment of
(continued...)
8 No. 07-2628
In his brief, respondent urges us to reconsider Page,
stating that we have misapprehended Wisconsin appel-
late procedure, yet he cites no authority to resolve the
tensions we have identified. Counsel went on to admit
at oral argument that Wisconsin’s appellate procedures
were inconsistent at the time Johnson’s appeal was de-
cided. Putting the proverbial nail in the coffin, a Wiscon-
sin state court decision issued shortly after we heard
oral argument confirmed that the relevant cases “create
inconsistencies,” along with “much confusion and de-
lay.” State ex rel. Panama v. Hepp, 758 N.W.2d 806, 812-13
(Wis. Ct. App. 2008). Those inconsistencies rendered the
state procedural ground inadequate in Page, and because
they applied to Johnson during his state court appeal,
they have the same effect today.2
1
(...continued)
a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464
(1938). There is clear tension between the requirement that
a waiver of counsel be clear and intentional and the notion
that a petitioner can waive that right simply by failing to
respond to a no-merit report. See Page, 343 F.3d at 909.
2
A recent Wisconsin Supreme Court case, State v. Allen, 786
N.W.2d 124 (Wis. 2010), briefly addressed Page and the incon-
sistencies bound up in Wisconsin’s appellate procedures.
Whether Allen will resolve the confusion discussed above
and permit a Wisconsin procedural default holding to serve
as an adequate and independent state ground is a question
for another day, as we must assess the consistency of Wiscon-
sin’s procedures at the time of Johnson’s appeal. See, e.g.,
(continued...)
No. 07-2628 9
B. Ineffective Assistance of Counsel
We now turn to the merits of Johnson’s appeal. Johnson
argues that his appellate counsel was ineffective for
failing to raise trial counsel’s errors in the initial no-merit
report. He also claims that his trial counsel was inef-
fective for failing to object to testimony related to an
uncharged crime, for failing to object to the introduc-
tion of evidence stemming from a search of Johnson’s
home, and for failing to inform Johnson of his mental
health problems before trial. The district court held that
both ineffective assistance claims lacked merit and
denied the writ.
We note at the outset that the applicable standard of
review depends upon whether those claims were dealt
with on the merits by the state courts. If they were, the
circumscribed standard of the Antiterrorism and Effec-
tive Death Penalty Act (AEDPA) applies; if not, our
review is significantly less constrained. George v. Smith,
586 F.3d 479, 484 (7th Cir. 2009). In this case, neither one
of Johnson’s ineffective assistance claims was decided on
the merits in the state courts. In the final state ruling,
the Wisconsin Court of Appeals decided just one of John-
2
(...continued)
Timberlake v. Davis, 409 F.3d 819, 821 (7th Cir. 2005) (“[A] state
rule that materially changed after the time of the supposed
default cannot be used to show that a federal claim had been
forfeited.”).
10 No. 07-2628
son’s contentions on the merits: the court held that his
appellate counsel’s failure to provide records was not a
sufficient reason to set aside the circuit court’s ruling of
procedural default. That ruling did not dispose of any
ineffective assistance of counsel claims on their merits,
but addressed the separate and distinct question of
whether there was sufficient cause under Wisconsin case
law to set aside the default. Because none of his claims
were decided on the merits, we apply the pre-AEDPA
standard of 28 U.S.C. § 2243, instructing us to “dispose of
the matter as law and justice requires.” We interpret this
to require de novo review. McGee v. Bartow, 593 F.3d 556,
572 n.10 (7th Cir. 2010).
To establish ineffective assistance of trial counsel, a
petitioner must show that counsel’s performance was
deficient and that the deficient performance prejudiced
his defense. Strickland v. Washington, 466 U.S. 668, 689-92
(1984); United States v. Banks, 405 F.3d 559, 568-69 (7th
Cir. 2005). We begin with the assumption that Johnson’s
counsel “rendered adequate assistance and made all
significant decisions in the exercise of reasonable profes-
sional judgment.” Strickland, 466 U.S. at 690. To establish
deficient performance in spite of that assumption, Johnson
must show that counsel’s representation “fell below
an objective standard of reasonableness” based on pre-
vailing norms of professional conduct. Id. at 688. Even
if Johnson can establish deficient performance, his task
is not at an end—he must also demonstrate “that there is
a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would
have been different.” Id. at 694.
No. 07-2628 11
Johnson claims that trial counsel was ineffective for
failing to disclose counsel’s mental health problems
prior to trial and that those problems had a generally
detrimental impact on counsel’s trial performance. We
can dispense with the disclosure aspect of this claim
fairly quickly, as the record reflects that Johnson was
made aware of the concerns regarding his counsel’s
mental health. While Johnson was not present at the
in-chambers conference on the matter, the trial judge
informed him shortly thereafter that there were con-
cerns raised regarding counsel’s depression, that counsel
was confronted about those concerns, and that counsel
reported he felt fine and able to handle the case. The
trial judge asked Johnson if counsel had briefed him on
the matter, and Johnson reported that counsel had and
that he wanted to proceed. As such, Johnson’s counsel
did not fail in any duty of candor to his client and was not
deficient on this point. As for Johnson’s general claim
that his counsel’s depression tainted his guidance at
trial, Johnson has pointed to no specific acts to establish
that counsel’s problems led to deficient performance,
and we can find none. So far as we can tell, Johnson’s
only claim is that, had he been aware of counsel’s depres-
sion, he would have fired him. While perhaps true, this
does not meet the burdens imposed by Strickland to
point to specific instances demonstrating deficient per-
formance and prejudice flowing therefrom. See Berkey
v. United States, 318 F.3d 768, 772-73 (7th Cir. 2003).
Johnson next claims that trial counsel was ineffective
for failing to object to witness testimony that linked him
to an uncharged crime and for failing to have that testi-
12 No. 07-2628
mony stricken from the record. At trial, a witness to one
robbery identified Johnson as the man who robbed her
store and testified about the description she gave to
police after the robbery. During that testimony, the
witness inadvertently disclosed one detail from a dif-
ferent description she gave regarding another similar
robbery that Johnson was suspected of committing. John-
son’s claim that his counsel was deficient for not
objecting to this testimony fails, as it is clear from the
record that the witness’s response was unexpected and
sudden, likely the product of nervousness during testi-
mony, and counsel could not have objected prior to her
response. His claim that counsel was deficient for not
having the testimony stricken fails as well. Even
though the testimony could have been stricken, as it
violated the trial judge’s order, the decision not to have
it stricken was likely a sound tactical decision, designed
to not draw attention to the very issue Johnson’s counsel
rightfully wished to bury. It is well established that our
scrutiny of counsel’s trial strategy is to be deferential
and that we do not second guess the reasonable tactical
decisions of counsel in assessing whether his performance
was deficient. United States v. Recendiz, 557 F.3d 511, 531
(7th Cir. 2009); Rodriguez v. United States, 286 F.3d 972,
986 (7th Cir. 2002). With that deferential eye, we con-
clude that counsel’s performance was not deficient on
this point.
Johnson’s final claim regarding trial counsel, brought
in his supplemental pro se brief, is that counsel was inef-
fective for failing to move to suppress evidence from a
search of his residence and for failing to investigate
No. 07-2628 13
that matter prior to trial. When an ineffective assistance
claim is based on introduction of evidence obtained
in alleged violation of the Fourth Amendment, the de-
fendant must also prove, over and above his Strickland
showing, “that his Fourth Amendment claim is
meritorious and that there is a reasonable probability
that the verdict would have been different absent the
excludable evidence.” Kimmelman v. Morrison, 477 U.S.
365, 375 (1986); Ebert v. Gaetz, 610 F.3d 404, 411 (7th Cir.
2010). Johnson’s ineffective assistance of counsel claim
fails for the simple reason that his Fourth Amendment
claim lacks merit. While Johnson documents inconsis-
tencies in the detective’s report regarding the precise
time Johnson’s girlfriend gave consent to search their
residence, the record nonetheless shows that valid
consent was provided. Consent to search common areas
of a shared residence is generally valid if given by a
person with actual or apparent authority, United States
v. Aghedo, 159 F.3d 308, 310 (7th Cir.1998), and Johnson’s
girlfriend clearly had actual authority here. We note
out of an abundance of caution that even if Johnson’s
Fourth Amendment claim had merit, there is no appre-
ciable probability that the verdict would have changed
if the evidence had been excluded—the State produced
numerous witnesses to each robbery, each of whom
readily identified Johnson as the gunman for these crimes.
Johnson last claims that his appellate counsel was
ineffective for failing to raise trial counsel’s errors in
the no-merit report. To prevail on this claim, Johnson
must show that appellate counsel failed to raise an
obvious issue that is stronger than the other claims
14 No. 07-2628
raised and that prejudice flowed from that failure. Martin
v. Evans, 384 F.3d 848, 851 (7th Cir. 2004). Prejudice
exists if “there is a reasonable probability that the issue
his appellate attorney failed to raise would have altered
the outcome of the appeal, had it been raised.” Brown
v. Finnan, 598 F.3d 416, 425 (7th Cir. 2010). Because John-
son’s appellate counsel claim is predicated on trial coun-
sel’s errors, the two claims rise and fall together. See
Robertson v. Hanks, 140 F.3d 707, 712 (7th Cir. 1998). We
have already concluded that Johnson’s trial counsel
was not deficient and, as such, any ineffective assistance
of trial counsel claim was comparably weaker than the
other issues raised by appellate counsel in the no-merit
report. For similar reasons, those issues would not
have had any appreciable impact on the denial of his ap-
peal. As such, his ineffective assistance claim lacks merit.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM the denial of
Johnson’s writ of habeas corpus.
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