In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1032
W ILLIAM R. K ERR,
Petitioner-Appellant,
v.
M ICHAEL T HURMER,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 04-C-1153—C. N. Clevert, Jr., Chief Judge.
A RGUED F EBRUARY 11, 2010—D ECIDED M ARCH 28, 2011
Before K ANNE, W OOD , and H AMILTON, Circuit Judges.
W OOD , Circuit Judge. William and Joan Kerr had been
married almost a decade when Joan struck up a romantic
relationship with Anthony Graff. (We will refer to
William Kerr by his last name and to Joan Kerr by her
first to keep the actors clear.) The affair between Joan
and Graff started in the summer of 1999, but it did not
last long. On August 8th of that year, the Kerrs spent
the day drinking with friends, first at the Wisconsin
2 No. 09-1032
State Fair and later at their home. During the day, Joan
met with Graff in secret at the fair. That evening, Graff
decided to call the Kerrs’ house to speak with Joan. Kerr
picked up the phone, however, and the conversation
was hostile. Ultimately, Graff decided to pay Kerr a visit.
Upon learning that Graff was on his way over, Kerr
loaded a 12-gauge shotgun and placed it within reach
in the kitchen. Less than an hour later, Graff appeared
at the Kerrs’ back door and told Kerr that they needed
to talk. Graff’s arrival was followed almost immediately
by the appearance of officers from the Wauwatosa (Wis-
consin) Police Department. A neighbor had summoned
the police after spotting Graff as he sneaked up to the
Kerrs’ house. When the officers arrived, Kerr told
them that Graff—who was by then sitting at the Kerrs’
kitchen table—was a friend and sent them on their
way. Kerr returned to the kitchen and, according to his
version of events, had the following brief exchange
with Graff:
Kerr: What’s the problem?
Graff: I’m your fucking problem. I’m going to take
your wife and you’re not going to stop me.
Kerr: Over my dead body.
Graff: That will be easy enough.
At that point, Graff started to stand up. Kerr picked up
his shotgun and shot Graff once in the abdomen, killing
him instantly. Kerr called the police back to the house
and turned himself in.
No. 09-1032 3
A Wisconsin jury convicted Kerr of first-degree inten-
tional homicide in December 1999, and the state court
sentenced him to life imprisonment with eligibility for
parole after 21 years. After losing his direct appeal, Kerr
filed a section 974.06 motion pro se in the state trial
court. (A section 974.06 motion is the statutory equivalent
of a petition for a writ of habeas corpus in Wisconsin.
See W IS. S TAT. § 974.06; Morales v. Boatwright, 580 F.3d 653,
656-57 (7th Cir. 2009) (discussing Wisconsin’s post-con-
viction procedures).) The trial court denied Kerr’s
motion, the Wisconsin Court of Appeals summarily
affirmed, and the Supreme Court of Wisconsin denied
review.
Kerr then turned to federal court to challenge his con-
viction. Again acting pro se, he filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254, in which he
asserted that constitutional errors in his state-court pro-
ceedings justified relief. The district court denied the
petition on the merits without an evidentiary hearing,
but it issued a certificate of appealability on a number
of Kerr’s claims. Kerr is now before this court, where he
is arguing that he is entitled to relief because his
defense attorneys provided ineffective assistance of
counsel. He advances two different theories in support
of that position.
Kerr first contends that his lawyers were ineffective
because they gave him incorrect information about
the sentence that he would have faced if he had
accepted a plea deal offered by the state before trial.
According to Kerr, the prosecutors were prepared to
4 No. 09-1032
allow him to plead guilty to first-degree reckless
homicide, but his lawyers convinced him not to accept
the deal when they incorrectly informed him that he
would face 13 years to life for that offense. In fact,
reckless homicide in Wisconsin is punishable by 0-40
years. Kerr asserts that he would readily have accepted
the state’s offer if he had known of the actual penalties
associated with the different crimes.
The second theory that Kerr asserts relates to his law-
yers’ failure to present the defense of adequate pro-
vocation at the trial. He points to the events in the
days and hours leading up to the shooting and argues
that Graff did more than enough to provoke the
attack that killed him. Had the jury been persuaded
that provocation existed, this would have reduced his
crime from first- to second-degree intentional homicide.
We review the district court’s decision to deny Kerr’s
petition for a writ of habeas corpus de novo and any of
its factual findings for clear error. Ebert v. Gaetz, 610 F.3d
404, 411 (7th Cir. 2010). Kerr would like us either to
reinstate the plea deal that he says was offered by the
state or to grant a new trial. In the alternative, Kerr asks
for an evidentiary hearing in the district court so that he
can develop his claims. We conclude that Kerr is not
entitled to relief on his adequate provocation theory,
but we find that a hearing is necessary before his plea
bargain claim can be resolved.
No. 09-1032 5
I
We begin with Kerr’s argument that his trial lawyers
were ineffective for failing to present an adequate provo-
cation defense at trial. We agree with both parties and
the district court that the state trial court—the Circuit
Court of Milwaukee County—ruled on the merits of this
argument. Accordingly, we evaluate the state court’s
decision under the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2254(d);
Harrington v. Richter, 131 S. Ct. 770, 780 (2011); Ylst
v. Nunnemaker, 501 U.S. 797, 802-04 (1991); George v.
Smith, 586 F.3d 479, 484-85 (7th Cir. 2009). The statute
provides that we may grant relief to Kerr only if the
state court’s decision was contrary to or an unrea-
sonable application of clearly established Supreme Court
precedent, or if it was based on an unreasonable determi-
nation of the facts in light of the evidence. 28 U.S.C.
§ 2254(d)(1) & (2); Williams v. Taylor, 529 U.S. 362, 404-06
(2000). In this case, the applicable Supreme Court prece-
dent is Strickland v. Washington, 466 U.S. 668 (1984). To
succeed on his claim that his lawyers provided constitu-
tionally ineffective assistance, Kerr had to show
deficient performance on the part of his attorneys and
prejudice from that deficiency, meaning a substantial
likelihood that the result would have been different. Id.
at 687; see also Richter, 131 S. Ct. at 791-92. Our responsi-
bility is not to decide ourselves whether Strickland’s
standards were met; it is instead to decide whether the
state courts were unreasonable when they concluded
that Kerr’s ineffective assistance claim could not prevail.
Richter, 131 S. Ct. at 785. Here, since the state courts
6 No. 09-1032
correctly identified Strickland as the governing law, we
have only to decide “whether the state court’s applica-
tion of clearly established federal law was objectively
unreasonable.” Williams, 529 U.S. at 409; see also Raygoza
v. Hulick, 474 F.3d 958, 963 (7th Cir. 2007).
A few additional legal principles inform our resolu-
tion of that question. First, we do not as a rule second-
guess counsel’s strategy. Instead, judicial scrutiny of a
lawyer’s performance must be highly deferential, and
courts assessing counsel’s performance generally pre-
sume that decisions at trial fall within “the ‘wide range’
of reasonable professional assistance.” Richter, 131 S. Ct. at
787 (quoting Strickland, 466 U.S. at 689). “The law does not
require counsel to raise every available nonfrivolous
defense.” Knowles v. Mirzayance, 129 S. Ct. 1411, 1422
(2009). Moreover, even if a lawyer’s decision to omit a
defense falls below this forgiving performance standard,
Strickland’s requirement that prejudice be shown means
that the defendant must make a case that there is a rea-
sonable probability—one sufficient to undermine our
confidence in the outcome—that the result of the pro-
ceeding would have been different if the defense had
been presented. 466 U.S. at 694; see also Long v. Krenke,
138 F.3d 1160, 1164 (7th Cir. 1998) (“[T]he mere possi-
bility of success based on a defense for which there
existed little or no evidentiary support is not enough
to establish constitutionally inadequate counsel.”).
Whether Kerr’s lawyers should have put on the
defense and whether it might have succeeded also
depend in part on Wisconsin law. As we have mentioned,
No. 09-1032 7
a first-degree intentional homicide in Wisconsin is miti-
gated to second-degree intentional homicide when
death is caused under the influence of adequate provoca-
tion. W IS. S TAT. §§ 940.01(2)(a) and 939.44. “Provocation” is
defined as “something which the defendant reasonably
believes the intended victim has done which causes
the defendant to lack self-control completely at the time
of causing death,” id. § 939.44(1)(b); and provocation is
“adequate” when it is “sufficient to cause complete lack
of self-control in an ordinarily constituted person,” id.
§ 939.44(1)(a). The adequacy requirement is the objec-
tive component of the defense; it requires proof of “such
mental disturbance, caused by a reasonable, adequate
provocation as would ordinarily so overcome and domi-
nate or suspend the exercise of the judgment of an
ordinary man, as to render his mind for the time being
deaf to the voice of reason: make him incapable of
forming and executing that distinct intent to take human
life . . . .” Johnson v. State, 108 N.W. 55, 60-61 (Wis. 1906).
Provocation, on the other hand, is the subjective part of
the defense. A defendant must show that the events in
question did in fact produce the required mental distur-
bance at the time of the homicide. State v. Williford,
307 N.W.2d 277, 284 (Wis. 1981).
The state trial court addressed the question of adequate
provocation when it ruled on Kerr’s section 974.06 mo-
tion. In that motion, Kerr explained that he shot Graff
because of the turmoil caused by Graff’s ongoing affair
with Joan, the threats of violence Graff conveyed in the
phone calls leading up to the killing, and Graff’s threat
physically to remove Joan from the Kerrs’ house once
8 No. 09-1032
he had arrived there. Kerr wrote, “Certainly, one would
expect a man to defend himself, family, and home by
any means necessary.” The state court was unimpressed.
It concluded that there was no evidence that would
have justified a jury instruction on the adequate provoca-
tion defense, and it implied that this was the reason
why Kerr’s assertion that his lawyers were ineffective
had little force. The court wrote:
No reasonable interpretation of the evidence would
lead to the conclusion that Mr. Kerr completely lost
self-control. To the contrary, he loaded and placed
his weapon in a convenient place before the victim
entered his home, he permitted the victim to enter
and he dealt calmly with the police only minutes
before the shooting. And it appears that all of
these actions came after potentially provocative reve-
lations that his wife and the victim were having
an affair.
The court thought that nothing in the brief exchange
we have described between Kerr and Graff after the
police had left the house amounted to objectively ade-
quate provocation. The district court agreed with this
view of the evidence, concluding that there was nothing
to “show a high degree of exasperation, rage, or anger”
and that “Kerr was calm just moments before shooting
Graff, and their verbal exchange was not such that it
could reasonably have been considered adequate pro-
vocation for Kerr’s action.”
We agree with the district court that the state court’s
resolution of this issue represents a reasonable applica-
No. 09-1032 9
tion of Strickland. A fairminded jurist could readily con-
clude that Kerr satisfied neither the objective nor the
subjective component of the adequate provocation
defense, and that as a result counsel’s decision not to
put on the defense fell within the wide range of profession-
ally competent assistance. The state court’s decision is
thus consistent with the Supreme Court’s decisions in
this area and Kerr is not entitled to relief. Richter, 131 S. Ct.
at 786. In particular, Kerr’s decision to inform the
police that Graff was his friend and to send them away
when they came to help severely undermines any argu-
ment that he was laboring under a mental disturbance
that interfered with rational thought. Kerr now argues
that he had no time to “cool down” between the time
that he began to argue with Graff on the telephone and
the time that he killed Graff in his kitchen. But the visit
by police provided an ideal opportunity to defuse the
situation. Moreover, it is a stretch to say that Graff, who
was unarmed, adequately provoked Kerr during the
brief exchange after the police had left. The state suggests
that Kerr’s lawyers made a strategic decision to omit the
adequate provocation defense so that they would not
undermine other defenses that they presented at trial.
Perhaps so. Or perhaps they merely came to the conclu-
sion that the state judge reached later: the facts simply
did not support the defense.
Kerr’s efforts to avoid this conclusion focus on what he
sees as the broader context of the killing. Under Wisconsin
law, the question whether provocation is adequate—
whether the objectively reasonable person would have
lost control—is typically limited to those events that
10 No. 09-1032
immediately precede the killing. Kerr urges us not to be
too literal about the concept of immediacy. Instead, he
wants us to look beyond the “final provocatory incident”
to the days and months leading up to the crime. Graff’s
affair with Joan tormented him over a period of a few
months, he says, and then Graff made several violent
threats during the phone calls earlier in the evening. He
points to a series of Wisconsin cases that stand for the
proposition that “actions over a long period of time can
have . . . cumulative effect upon any ordinary person so
that the provocation just before the shooting would be
greatly magnified.” State v. Lucynski, 179 N.W.2d 889, 890
(Wis. 1970) (internal quotation marks omitted); see also
State v. Felton, 329 N.W.2d 161, 172-73 (Wis. 1983); State
v. Hoyt, 128 N.W.2d 645, 649 (Wis. 1964). These cases
represent a well-defined exception to the normal rules of
heat-of-passion defenses: a court may consider a pattern
of prior conduct in circumstances where the defendant
is a battered spouse who suffers persistent abuse
that culminates in a killing. Kerr, however, wants an ex-
tension of that principle—one that the state court was
unwilling to adopt. (Kerr did not even know Graff’s
name until after Graff was dead.) Federal law did not
compel the state court to take that step.
Before turning to Kerr’s other argument, it is worth
mentioning that Kerr’s trial lawyers argued to the jury
that Kerr acted in self-defense and that his actions were
reckless rather than intentional. The trial court in-
structed the jury not only on first-degree intentional
homicide, but also on second-degree intentional homicide,
first-degree reckless homicide, second-degree reckless
No. 09-1032 11
homicide, and self-defense. The jury’s decision to convict
Kerr of first-degree intentional homicide rather than
any of these other offenses reinforces the state court’s
conclusion that Kerr could not have benefitted from
the adequate provocation defense. We conclude that
Kerr’s argument based on the lawyers’ decision not to
raise the adequate provocation defense falls far short of
clearing the hurdle imposed by § 2254(d)(1).
II
A
That leaves Kerr’s claim that his lawyers provided
ineffective assistance of counsel when they gave him bad
advice that caused him to forego a favorable plea deal
offered by the state and instead proceed with a trial.
Before we consider whether Kerr’s claim warrants relief,
we must decide whether he may now present the argu-
ment, given the litigation that has occurred thus far in
both state and federal court.
The state advances two alternative arguments to
respond to Kerr’s claim. First, it says that Kerr has proce-
durally defaulted this point. See, e.g., Ward v. Jenkins, 613
F.3d 692, 696-97 (7th Cir. 2010). Federal habeas corpus
relief from a state conviction is not available when the
decision rests on a state procedural ground independent
of any federal issue and adequate to support the judg-
ment. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). As
the state sees it, the state trial court rejected Kerr’s argu-
ment because it was fatally underdeveloped, and this, the
12 No. 09-1032
state argues, constitutes an adequate and independent
state ground. In the alternative, the state continues, one
could conclude that the state trial court denied Kerr’s plea
bargain claim on the merits. If so, then our review of this
claim, like the adequate provocation claim discussed
above, is governed by AEDPA. This alternative argu-
ment concludes that Kerr has not shown that the state
court’s rejection of his argument was an unreasonable
application of Strickland. The state’s two arguments are
mutually exclusive: either the state court refused to
decide Kerr’s claim because of his failure properly to
present it to the court, or it did decide the claim ad-
versely to Kerr on the merits. See Ylst, 501 U.S. at 802-04.
We must decide which characterization better describes
the court’s rationale.
It is helpful to begin by examining in more detail the
motion for post-conviction relief that Kerr filed in the
state trial court. Kerr’s motion says that his lawyers
were ineffective because they gave him “inappropriate
advise [sic] on not excepting [sic] the prosecutions [sic]
plea bargain just before trial . . . .” The nature of the
inappropriate advice is unclear from Kerr’s pro se
pleading; as far as we can tell, he suggests that his
lawyers were incorrect in their belief that they could
defend the case, and so they encouraged Kerr not to
plead guilty because of their faulty evaluation of feasible
defenses. Kerr’s papers leave no doubt, however, that
he asserted in his state post-conviction motion that he
would have negotiated a plea rather than going to trial
if his lawyers had given him accurate information and
that his lawyers’ mistake led to a violation of his Sixth
Amendment right to effective assistance of counsel. (We
No. 09-1032 13
note that we see no problem here, in light of the
developed argument in Kerr’s state post-conviction
motion, with fair presentment to the state court, Baldwin
v. Reese, 541 U.S. 27, 30-31 (2004); the record satisfies us
that Kerr is essentially presenting to us the same
“factual and legal bases” that he advanced in the state
courts, Curtis v. Montgomery, 552 F.3d 578, 583 (7th
Cir. 2009). As we observed recently, “a petitioner may
reformulate his claims somewhat, so long as the sub-
stance of his argument remains the same.” Ward, 613
F.3d at 697 (internal quotation marks omitted).)
At the conclusion of its opinion denying Kerr relief, the
state court called his argument “a mish-mash of allega-
tions” and rejected it, saying:
Mr. Kerr’s allegations are just too underdeveloped
for me to rule on. His allegations beg a number of
questions that I cannot answer on the record before
me, and which must be answered before I could
determine whether there is a reasonable probability
that Mr. Kerr would have decided to plead guilty
had he been advised differently. [After listing exam-
ples of such questions, the court continued:] Even if the
State offered to resolve the case on a lesser charge, such as
first degree reckless homicide, Mr. Kerr might still be
serving a sentence which would make him ineligible for
parole until 2021, in which case Mr. Kerr would not be able
to demonstrate that he was prejudiced by going to trial.
When, in order to decide issues, a court must first
develop them, the court may decline to rule on them.
State v. Pettit, 171 Wis. 2d 627, 646-47 ([Wis.] Ct. App.
14 No. 09-1032
1992). Accordingly, I reject the final claim Mr. Kerr
makes in his motion.
(Emphasis added.) At oral argument in this court, the
state took the position that the language we have empha-
sized shows that the state court resolved the merits of
Kerr’s plea bargain theory.
We would be doing state courts in general a disservice
if we began picking individual sentences or phrases out
of a longer explanation and assuming that these
isolated phrases represent the court’s view. And even if
that tactic were available here, we do not read the
language the state has singled out as a ruling on the merits.
The statement is perfunctory and uses the conditional
mood. It reads as if it were another example of a
question (How much time might Kerr have actually
gotten?) that the state court thought had to be answered
before it could decide the merits. In addition, as we
discuss in a moment, taken literally the state court’s
remark incorrectly describes state law. That indicates to
us that it was nothing but a casual comment, rather than
a considered ruling on the merits of Kerr’s argument.
“[W]e hesitate to apply a stricter standard of review [that
of § 2254(d)] without a clearer indication that Wisconsin
fully considered [the petitioner’s] claim on the merits.”
George, 586 F.3d at 485.
We conclude that the brief comment on which the
state is now relying does not reflect an alternative ruling
on the merits. Instead, the state court’s decision to
reject Kerr’s claim because he failed to develop it in a
manner that complied with state procedural rules “ ‘fairly
No. 09-1032 15
appears’ to rest primarily on state law.” Coleman, 501 U.S.
at 740. This conclusion is buttressed by the fact that the
only legal authority mentioned by the state court was
State v. Pettit, 492 N.W.2d 633 (Wis. Ct. App. 1992).
Pettit describes Wisconsin statutes that permit state
courts to ignore a claim that has not properly been devel-
oped. Id. at 646-47. We recently observed that “Wisconsin
waiver law . . . constitutes an adequate and independent
state law ground” barring federal habeas corpus, Promotor
v. Pollard, 628 F.3d 878, 886-87 (7th Cir. 2010); see also
Gray v. Hardy, 598 F.3d 324, 329 (7th Cir. 2010) (discussing
Illinois waiver rules and federal habeas corpus re-
view), and we see no reason to treat Wisconsin’s rules
about proper development of legal claims differently.
Just as in federal court, a party’s failure adequately to
develop an argument has consistently been a reason to
reject claims advanced by litigants in the Wisconsin
state courts. That the state court might have reached the
merits of Kerr’s claim and chose not to do so makes no
difference in the adequate-and-independent ground
analysis. Walker v. Martin, 131 S. Ct. 1120, 1125 (2011)
(citing Beard v. Kindler, 130 S. Ct. 612 (2009)). The record
leaves no doubt that the state court’s decision rested on
this independent and adequate procedural ground.
Nothing in the Supreme Court’s decision in Richter
changes this aspect of habeas corpus law. As we have
mentioned, the Wisconsin Court of Appeals summarily
affirmed the trial court’s decision without further dis-
cussion of Kerr’s claim that his lawyers caused him to
forego a plea in favor of trial (and the Supreme Court of
Wisconsin later denied review). The important question
16 No. 09-1032
after Richter is whether the state appellate court’s
summary decision signals that Kerr’s claim was “adjudi-
cated on the merits” by the state court. See 131 S. Ct. at 783-
85. In our view, it does not. Richter did not say that all
summary affirmances in the course of state-court pro-
ceedings are rulings on the merits. To the contrary, the
Richter Court wrote, “When a federal claim has been
presented to a state court and the state court has
denied relief, it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”
Id. at 784-85 (emphasis added). That presumption leaves
intact the Court’s prior instructions in Ylst, which estab-
lished rules for cases in which a federal court is con-
fronted with a series of state-court judgments issued over
the course of a prisoner’s collateral proceedings in more
than one tribunal:
Where there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders
upholding that judgment or rejecting the same claim
rest upon the same ground. If an earlier opinion
“fairly appear[s] to rest primarily upon federal law,”
Coleman, 501 U.S., at 740, we will presume that no
procedural default has been invoked by a subsequent
unexplained order that leaves the judgment or its
consequences in place. Similarly where, as here, the
last reasoned opinion on the claim explicitly imposes
a procedural default, we will presume that a later
decision rejecting the claim did not silently disregard
that bar and consider the merits.
No. 09-1032 17
501 U.S. at 803 (alteration in original); see also Richter,
131 S. Ct. at 785 (citing Ylst, 501 U.S. at 803).
The Court in Richter had before it a summary order of
the California Supreme Court denying without com-
ment a state prisoner’s request for a writ of habeas cor-
pus. 131 S. Ct. at 783. California’s system of collateral
review is unique among the states in that all California
courts have original jurisdiction in habeas corpus pro-
ceedings. See Martin, 131 S. Ct. at 1125-26. A prisoner
petitioning for a writ of habeas corpus in a particular
California court—whether trial, appellate, or the
California Supreme Court—deals only with the court in
which the petition is filed; in California, “ ‘no appeal
lies from the denial of a petition for writ of habeas cor-
pus.’ ” Id. at 1125 (quoting In re Clark, 855 P.2d 729, 740
n.7 (1993)). Thus, the order issued by the California
Supreme Court and considered in Richter did not affirm
(or decline to review) a lower court’s judgment; it
denied a petition filed by Richter directly with the
state supreme court. The summary affirmance entered
by the Wisconsin Court of Appeals in Kerr’s case is dif-
ferent. It affirmed a lower court’s decision denying
Kerr relief on procedural grounds. In Kerr’s situation,
unlike Richter’s, the state court’s decision plainly
states that state-law procedural principles are at play,
and Ylst instructs that we should read the appellate
court’s summary decision as an affirmation of the trial
court’s procedural disposition. That is not to say that
Richter’s rule is reserved for California. Of course not. If,
for example, a Wisconsin trial court summarily rejects
a prisoner’s claim without explanation, after which the
18 No. 09-1032
state appeals court similarly denies relief in a summary
order, a situation comparable to the one in Richter
would exist. There, in the absence of any other clue,
Richter and Ylst indicate that the default rule is to treat
it as a decision on the merits. That is not our case, how-
ever. We can and must proceed in light of our conclu-
sion that the Wisconsin courts rejected Kerr’s claim
on procedural grounds.
B
Whether Kerr’s procedural default bars federal review
is complicated by the fact that the state first presented
its procedural default argument in this court, and then
only in a single paragraph of its brief. The application
of the independent and adequate state grounds
doctrine does not affect federal jurisdiction; it exists
instead to promote federalism and judicial economy.
Kaczmarek v. Rednour, 627 F.3d 586, 591-92 (7th Cir.
2010) (citing Trest v. Cain, 522 U.S. 87, 89 (1997)). It is thus
possible that procedural default may be equitably
excused, if the petitioner demonstrates cause for the
default and resulting prejudice, or shows that the merits
of the case must be discussed in order to avoid a mis-
carriage of justice. Perruquet v. Briley, 390 F.3d 505, 514
(7th Cir. 2004). Kerr argues that any procedural default
he has committed should be forgiven under the excep-
tion for cause and prejudice, but we do not think it is
necessary to reach that argument. What is important
for the purposes of this case is that Trest holds that
“procedural default is normally a defense that the State
is obligated to raise and preserve if it is not to lose the
No. 09-1032 19
right to assert the defense thereafter.” 522 U.S. at 89
(citations, alterations, and internal quotation marks
omitted).
As a general matter, a state must assert the defense in
its answer to the federal petition. Kaczmarek, 627 F.3d at
591-92. We have recognized, however, that a state
might successfully preserve a procedural default argu-
ment even if it does not raise the issue in its first
response in the district court, see id. at 594 (entertaining
the argument after it was raised and fully briefed for
the first time in a motion for reconsideration in the
district court); and there are limited circumstances
where we may consider procedural default even though
the state presents the defense for the first time in this
court, see Perruquet, 390 F.3d at 516-19 (reaching the
state’s argument because the petitioner had failed to
present his constitutional claim to any state court and
because the state had not engaged the merits of that
argument in the district court); see also Day v.
McDonough, 547 U.S. 198, 206-07 (2006). We must there-
fore decide whether the normal rule requiring the state
to raise the defense prevails here, or if this is one of
the unusual cases in which the state’s own forfeiture
should be overlooked.
Here, the state ignored Kerr’s default until past the
eleventh hour. It addressed Kerr’s plea bargaining argu-
ment on the merits in both its answer to Kerr’s federal
petition and in a brief later filed in the district court.
Although the state asserted that the district court
should reject some of Kerr’s arguments as procedurally
20 No. 09-1032
defaulted, Kerr’s plea bargain theory was not on the list.
Only after the district court said in its opinion that it
had decided to reach the merits of Kerr’s plea bar-
gaining issue because the state failed to raise its
defense, and the case was before this court, did the
state consider procedural default. Even then, the state
hardly touched on the point. It devoted a scant half-
page to the issue in its responsive brief and referred to
no legal authority in support of its argument. Federal
courts, just like their Wisconsin counterparts, consider
such poorly developed arguments forfeited on appeal,
see, e.g., Judge v. Quinn, 612 F.3d 537, 557 (2010), and there
is no exception that applies to the state’s argument
here. The state trial court flagged Kerr’s plea bargain
theory as underdeveloped, and so it would have been
easy for the state to have argued procedural default. It
did not do so in the district court, and its argument in
this court was skeletal. Under the circumstances, we
conclude that the default was forfeited. Whether
because this is the result that the state wanted at some
point during this litigation or because of the normal
operation of the rules of forfeiture, the state’s for-
feiture means that we may move on to the merits of
Kerr’s plea bargain theory.
III
A
Our conclusion that the state courts never spoke to
the merits of Kerr’s plea bargaining claim has conse-
quences for the standard of review we apply. As Richter
No. 09-1032 21
reiterated, section 2254(d) bars re-litigation of any “claim”
that the state court “adjudicated on the merits,” subject
to the exceptions found in § 2254(d)(1) and § 2254(d)(2).
131 S. Ct. at 784. That is the reason that we reviewed
under the terms of 28 U.S.C. § 2254(d)(1) the state trial
court’s conclusion that Kerr’s trial attorneys provided
constitutionally acceptable representation even though
they did not raise an adequate provocation defense. The
state trial court found meritless Kerr’s claim that the
adequate provocation defense should have been pre-
sented, and we asked whether that decision was an
unreasonable application of Supreme Court precedent.
But the deferential standard of section 2254(d) applies
only when a state court has adjudicated the federal
claim “on the merits.” Canaan v. McBride, 395 F.3d 376, 382-
83 (7th Cir. 2005). As we have already noted, Richter
recognizes a default rule that a state court decision re-
jecting a federal claim without comment is a decision
on the merits. 131 S. Ct. at 783-85. But if the state court
issues a summary order that denies a petition for post-
conviction relief and in the order it furnishes a
procedural reason for its decision (whether in a
lengthy discussion or through a brief reference to the
governing law), then we must take the state court at its
word and treat the decision as procedural, not merits-
based. See Martin, 131 S. Ct. at 1124. We have said
that “[a]n adjudication on the merits is perhaps best
understood by stating what it is not: it is not the resolu-
tion of a claim on procedural grounds.” Muth v. Frank,
412 F.3d 808, 815 (7th Cir. 2005); see also Sellan v.
Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (“ ‘Adjudicated
22 No. 09-1032
on the merits’ has a well settled meaning: a decision
finally resolving the parties’ claims, with res judicata
effect, that is based on the substance of the claim ad-
vanced, rather than on a procedural, or other, ground.”).
Richter leaves this dichotomy in place, while at the same
time it elaborates on the proper treatment of silence
from the state court.
As Kerr’s plea bargain claim reaches us—by means of
a confusing presentation in the state court that was
deemed a procedural default, followed by the state’s
forfeiture of whatever default occurred—the one thing
that is clear is that no state court has squarely addressed
the merits. In these circumstances, we review Kerr’s
plea bargain claim under the pre-AEDPA standard of
review set out in 28 U.S.C. § 2243. See, e.g., Chaker v.
Crogan, 428 F.3d 1215, 1220-21 (9th Cir. 2005); cf. Johnson
v. Thurmer, 624 F.3d 786, 789-91 (7th Cir. 2010); George,
586 F.3d at 484-85; Braun v. Powell, 227 F.3d 908, 916-17
(7th Cir. 2000). Under that standard, we are to “dispose
of the matter as law and justice require,” 28 U.S.C. § 2243,
which we have interpreted to mean that we review the
petitioner’s constitutional claim with deference to the
state court, but ultimately de novo. Richter, 131 S. Ct. at
788 (“Even under de novo review, the standard for
judging counsel’s representation is a most deferential
one.”); McGee v. Bartow, 593 F.3d 556, 572 n.10 (7th Cir.
2010).
As we assess Kerr’s claim, we first consider his argu-
ment as if there were no dispute about the factual allega-
tions he makes; later we return to the evidentiary prob-
No. 09-1032 23
lems. According to Kerr, the district attorney offered
him a deal before jury selection began that would have
allowed him to plead guilty to the lesser crime of first-
degree reckless homicide. Kerr’s lawyers, he asserts, told
him that reckless homicide carried a maximum sentence
of life imprisonment and a 13-year minimum term. This
was wrong. In fact, the law in effect at the time made
reckless homicide a Class B felony, punishable by a
prison term between zero and 40 years. W IS. S TAT.
§§ 940.02(1) and 939.50(3)(b) (1997-1998). A person con-
victed of that crime would have been eligible for parole
after serving six months or 25% of a sentence, whichever
was greater, id. § 304.06(1)(b), and for “presumptive
mandatory release”—release that the state parole commis-
sion can deny only in enumerated circumstances—after
two-thirds of the sentence, id. § 302.11(1) and (1g). First-
degree intentional homicide, on the other hand, carried
a mandatory term of life imprisonment, id. §§ 940.01(1)
and 939.50(3)(a), with eligibility for parole after a mini-
mum of 20 years, id. § 304.06(1)(b), and no presumptive
mandatory release at all, id. § 302.11(1m). Kerr says that
if he had known the truth about how much time he
would have to serve after pleading guilty, he would
have entered a plea on the spot rather than facing a jury
trial on charges of intentional homicide.
As things unfolded, Kerr did go to trial, and he
received a life sentence in January 2000, with eligibility
for parole after 21 years. The state court assumed that
Kerr was not prejudiced by a trial, because he “might
still be serving a sentence which would make him in-
eligible for parole until 2021” even if he had pleaded
24 No. 09-1032
guilty to first-degree reckless homicide. But the statutes
we have just described demonstrate that this assump-
tion was based on a faulty premise. If Kerr had pleaded
guilty to first-degree reckless homicide and been sen-
tenced to the statutory maximum of 40 years, he would
have been eligible for parole after 10 years—in 2010, not
2021. The district court made a related mistake. It
thought that Kerr had not suffered the prejudice
required by Strickland, even if his lawyers had performed
deficiently. The court reasoned that because Kerr was
eligible for parole after 21 years and because a guilty
plea would have resulted in a term of 27 years, it
was not clear that “the difference in penalty would
have been the determinative factor in accepting or
rejecting the plea offer.” This was a comparison of apples
and oranges: the district court contrasted Kerr’s actual
parole eligibility date pursuant to the conviction for in-
tentional homicide (the year 2021) with an estimate of
what his presumptive release date would have been after
a guilty plea for reckless homicide (2026, if Kerr had
pleaded guilty and received the maximum term of im-
prisonment). After his trial, Kerr received a life sentence
as required by statute, and he was eligible for parole
after 21 years; under his conviction for intentional homi-
cide, he was not eligible for presumptive mandatory
release under any circumstance. Had he pleaded guilty,
the worst-case scenario was a 40-year term, eligible for
parole after 10 years, with presumptive release in just
under 27 years. The state court’s error of state law, of
course, is not grounds for granting federal relief.
Swarthout v. Cooke, 131 S. Ct. 859, 861 (2011). We describe
No. 09-1032 25
the miscalculations in detail only to point out that Kerr
has identified how his alleged loss of an opportunity
to plead guilty (if it occurred) almost certainly prejudiced
him.
B
Hill v. Lockhart holds that Strickland’s two-step frame-
work applies “to challenges to guilty pleas based on
ineffective assistance of counsel.” 474 U.S. 52, 58 (1985); see
also Premo v. Moore, 131 S. Ct. 733, 743 (2011); Padilla v.
Kentucky, 130 S. Ct. 1473, 1480-81 (2010) (“Before deciding
whether to plead guilty, a defendant is entitled to ‘the
effective assistance of competent counsel.’ ”) (quoting
McMann v. Richardson, 397 U.S. 759, 771 (1970)). In
Hill, the Court considered a Strickland claim based on
allegations that the petitioner’s lawyer had given bad
advice that caused him to plead guilty instead of pro-
ceeding to trial. While we have encountered many cases
analogous to Hill, we have also understood that decision
to establish a rule applicable to other circumstances
where lawyers advise their clients at the plea-bargaining
stage of the case. Cf. Padilla, 130 S. Ct. at 1485 n.12. For
instance, we have applied Hill to a case where a
lawyer provides ineffective assistance of counsel when
the defendant rejects a plea deal and proceeds to trial in
the face of overwhelming evidence of guilt and lacking
any viable defense. Toro v. Fairman, 940 F.2d 1065, 1068
(7th Cir. 1991). In addition, we have suggested (without
deciding) that a defendant might demonstrate ineffective
assistance in a case where bad advice caused him to take
26 No. 09-1032
a plea agreement less favorable than a different deal he
otherwise might have made. United States v. Parker, 609
F.3d 891, 894-95 (7th Cir. 2010). We have also decided
a number of cases involving allegations that an at-
torney performed deficiently by giving erroneous
advice that caused a defendant to reject a favorable plea
deal and proceed instead with a trial. See, e.g., Paters
v. United States, 159 F.3d 1043 (7th Cir. 1998); United
States v. Golden, 102 F.3d 936 (7th Cir. 1996); Johnson v.
Duckworth, 793 F.2d 898 (7th Cir. 1986).
But the question in the final analysis is not how we
think Hill applies to differing factual settings; the con-
stitutional standard in all of the separate phases of a
criminal trial where the Sixth Amendment applies, in-
cluding the point at which a defendant decides whether
to plead guilty to a crime, requires only “reasonable
competence in representing the accused.” Moore, 131 S. Ct.
at 742. The Supreme Court has recently granted certiorari
to consider two cases that will provide additional
guidance in this area. Missouri v. Frye, 131 S. Ct. 856 (U.S.
Jan. 7, 2011) (10-444), presents the question whether a
defendant who enters a valid plea may later claim that
but for an error made by his lawyer he would have
pleaded guilty on more favorable terms (the issue we
touched upon in Parker, supra). In Lafler v. Cooper, 131 S.
Ct. 856 (U.S. Jan. 7, 2011) (10-209), the Court will
consider an issue that appears to affect Kerr’s case
directly: whether a person seeking habeas corpus relief
from a state conviction may prevail when his lawyer
deficiently advises him to reject a favorable plea
bargain but the defendant is later convicted and sen-
No. 09-1032 27
tenced pursuant to a fair trial. In both cases, the Court
has instructed the parties to address what remedy, if
any, a court should provide when a lawyer is constitu-
tionally ineffective at the plea-bargaining phase but the
defendant is later convicted and sentenced pursuant
to constitutionally adequate procedures. See id. We
have considered whether to hold this case pending the
decision in Lafler, but in the interest of efficiency, we
have decided not to do so. The record is not sufficiently
developed to permit a decision in Kerr’s case, if the
Court rules such a case may proceed at all. We think it
best to move forward now, recognizing that if the
Court rules that the later trial erases any possible claim
relating to potential plea bargains, then it is likely that
Kerr’s case will have to be dismissed at that time.
To show that his lawyers provided ineffective
assistance at the plea-bargaining phase in violation of
the Sixth Amendment, we turn again to Strickland’s dual
requirements of deficient performance and prejudice.
In the plea-bargain context, Strickland requires us to
assess whether counsel performed effectively, based
strictly on what was known at the time. Moore, 131 S. Ct.
at 741-42. When a plea bargain is involved, the prejudice
inquiry turns not on the effect of the counsel’s per-
formance on the trial, but instead on the question
“whether the deficient information was the decisive
factor in a defendant’s decision to plead guilty or to
proceed to trial.” Julian v. Bartley, 495 F.3d 487, 498 (7th
Cir. 2007); see also Moore, 131 S. Ct. at 743-45 (describing
the inquiry when the petitioner did plead guilty and
is arguing that he would have insisted on a trial). The
28 No. 09-1032
certainty brought to the criminal justice system by the
plea bargain “make[s] strict adherence to the Strickland
standard all the more essential when reviewing the
choices an attorney made at the plea bargain stage.”
Moore, 131 S. Ct. at 741; id. at 745-46.
The district court thought that Kerr’s lawyers had not
performed deficiently, even if they had provided Kerr
with incorrect information, because there was evidence
that Kerr discussed the plea deal with his lawyers, con-
sidered the strength of his defense, and participated in
the decision to plead guilty. But this version of events
takes account of only part of the story. The content of
those discussions is critical. If Kerr’s lawyers told him
(as he alleges) that he would face 13 years to life in
prison as a result of pleading guilty to reckless
homicide, they overstated the minimum sentence by
13 years and the maximum sentence by much more
than that (depending on how long Kerr lives). This is a
basic legal error that easily falls “ ‘below an objective
standard of reasonableness.’ ” Richter, 131 S. Ct. at 787
(quoting Strickland, 466 U.S. at 688). If Kerr’s allegations
are correct—a big “if,” to which we return shortly—we
would have little trouble concluding that the deficient-
performance part of Strickland’s test has been established.
That brings us to the evidence that Kerr has presented
in support of his plea bargain theory. There is no
dispute that Kerr was offered a plea deal; nor is there
any question that right before sentencing Kerr’s attorneys
said decisively that if he pleaded guilty he would face
life imprisonment with a 13-year statutory minimum. All
No. 09-1032 29
of that is reflected in a discussion among Kerr, the state
trial judge, the district attorney, and Kerr’s lawyers,
in the judge’s chambers right before sentencing in Jan-
uary 2000. The decisive nature of the attorney’s predic-
tion of a petitioner’s sentence is relevant to our assess-
ment of how influential that advice was in the peti-
tioner’s decision whether to plead guilty. See Julian, 495
F.3d at 498 (“The strength of an attorney’s prediction . . .
goes toward determining whether the attorney’s state-
ments were the decisive factor in the defendant’s deci-
sion . . . .”).
In his affidavit, Kerr asserts that he would have
accepted the state’s plea offer rather than going to trial
if his attorneys had accurately conveyed the correct
sentencing range carried by first-degree reckless homi-
cide. Kerr acknowledges that his own sworn statement
is not enough to show prejudice without some objec-
tive corroborating information. See, e.g., Bethel v. United
States, 458 F.3d 711, 718 (7th Cir. 2006). But he has
pointed to corroborating evidence. The district court
found that one of the lawyers (Gerald Boyle) told
Kerr that he would have to plead to life imprisonment
with a 13-year statutory minimum. This is at least some
evidence that Kerr’s accusation that he was given errone-
ous advice is well founded. We have already described
how Kerr’s evaluation of the plea would have been dis-
torted by an error of such proportions. Such advice
easily could have removed any incentive to take the
plea, because it would have made it seem as if he had
little to lose by going to trial. See Julian, 495 F.3d at 498-
99 (petitioner rejected a plea because his lawyer told him
30 No. 09-1032
he would face a maximum 30 years after trial and 23 if
he pleaded guilty, when in fact he faced 60 years if con-
victed); Moore v. Bryant, 348 F.3d 238, 240 (7th Cir. 2003)
(petitioner accepted a plea after his lawyer said petitioner
would face 22-27 years if convicted and 10 if he pleaded
guilty, when actually he only risked 12-15 years at trial).
We think that the combination of Kerr’s affidavit, the
district court’s finding that apparently incorrect advice
was actually given, and the large disparity between
the sentence his lawyers thought would be required
under the plea and the true sentence is enough to demon-
strate a serious question on the issue of prejudice. We
are not prepared, however, to say that this is enough
to carry the day for Kerr. Apart from the parties’ allega-
tions, the only information that we have about the plea
deliberations in this case comes from letters between
Kerr and his attorneys. Kerr wrote to his former defense
lawyers and asked three questions about what he
referred to as the district attorney’s offer of a first-degree
reckless homicide plea. He asked whether he could have
a copy of the offer in writing; he asked whether the
district attorney had planned to recommend a particular
sentence to the jury if he had accepted the plea; and he
asked why he had not been offered the plea further
in advance of trial, so that he might have had the oppor-
tunity to discuss it with his family. Kerr’s lawyers re-
sponded without mentioning exactly what plea the
state had offered:
At no time did Mr. Williams [the district attorney]
offer any type of deal that was sufficient until the
No. 09-1032 31
morning of trial. That was not in writing and he does
not have to put the offer in writing. Because your
matter is complete, he will not put a letter in writing
to memorialize an offer that was given on the day of
trial.
* * *
You are well aware that both my father and I had a
lengthy conversation with you after receiving that
offer. You determined that you did not want that
offer and proceeded to trial. At no time did you ask
for time to discuss it with you [sic] family in order to
assist you in making a decision.
In his affidavit, Kerr says that he had no idea that he
could confer with his family before making a decision
about the plea offer. An evidentiary hearing is necessary
so that both Kerr and the state can have an opportunity
to develop evidence about how the plea negotiations
proceeded.
An evidentiary hearing will also give the state an op-
portunity to present its evidence on exactly what crime
(if any) it was prepared to permit Kerr to plead guilty
to. Kerr alleges that it was first-degree reckless homicide.
We know that during the judge’s in-chambers conference
one of Kerr’s lawyers said to him, “[Y]ou now under-
stand that we really had no offer other than the possi-
bility of your pleading guilty to life imprisonment with a
13—with a statutory minimum.” But the discussion
ends there, without any hint about what charge was the
basis of the plea. In this court, the state denies that Kerr
was ever offered the chance to plead guilty to reckless
32 No. 09-1032
homicide, but the state court’s handling of the issue
meant that the prosecutor never had the chance to
support that position with affidavits or otherwise to
present any evidence of what the state did offer to Kerr.
Without more, we cannot tell whether Kerr’s allegation
is true. For all we know, the district attorney offered
Kerr a plea agreement for some other crime that would
have resulted in a sentence between 13 years and life
(which would mean that Kerr’s attorneys provided
correct advice). Without evidence of the crime that was
the basis of the plea agreement, we cannot assess whether
Kerr’s lawyers performed deficiently or whether Kerr
suffered prejudice.
When a petitioner fails to develop the factual basis of a
claim in state court, AEDPA normally prevents federal
courts from holding an evidentiary hearing to supple-
ment the record. See 28 U.S.C. § 2254(e)(2); Williams,
529 U.S. at 430; Boyke v. Parke, 259 F.3d 781, 789-92 (7th Cir.
2001). But this bar is lifted if the applicant can show
“a factual predicate that could not have been previously
discovered through the exercise of due diligence.”
28 U.S.C. § 2254(e)(2)(A)(ii). In his motion for state post-
conviction relief, Kerr asserted that his lawyers gave
him incorrect advice about the plea offered by the
state, and he requested a Machner hearing—a hearing
provided by Wisconsin state courts so that prisoners
can preserve the testimony of their trial lawyers for
ineffective assistance of counsel claims. See generally
Ward, 613 F.3d at 695-96. But the state trial court denied
his request for a hearing, in part because Kerr’s “claims
against his attorneys are merely conclusory or under-
No. 09-1032 33
developed . . . .” In fact, no state or federal court has ever
held an evidentiary hearing, and so the factual basis of
Kerr’s allegation that the district attorney offered to let
him plead guilty to first-degree reckless homicide is
entirely undeveloped. It is difficult in these circum-
stances to say that Kerr was not diligent enough in devel-
oping his claim. See Ward, 613 F.3d at 697-99; Davis v.
Lambert, 388 F.3d 1052, 1060-62 (7th Cir. 2004). Kerr simi-
larly cannot be accused of being less than diligent when
the missing factual information critical to this case—the
basis of the plea agreement—is missing because Kerr’s
lawyers failed to record it in any way and failed even to
inform Kerr what deal was offered in their later letter,
which has made it into the record.
Even if AEDPA does not bar an evidentiary hearing,
Kerr must still show (1) that he has alleged facts that, if
proved, would entitle him to relief, and (2) that the
state courts, for reasons beyond his control, never con-
sidered the claim in a full and fair hearing. Matheney
v. Anderson, 253 F.3d 1025, 1039 (7th Cir. 2001); Townsend
v. Sain, 372 U.S. 293, 312 (1963), overruled on other
grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1, 5-6 (1992). For
all of the reasons we discussed above, subject to our
earlier caution about the pending Lafler case in the Su-
preme Court, we are satisfied that Kerr meets both re-
quirements. He is thus entitled to a hearing in the
district court on his plea bargain theory, which will give
both parties the opportunity to present evidence to
address the factually undeveloped aspects of the case
that we have identified.
34 No. 09-1032
We V ACATE the decision of the district court and
R EMAND for further consideration consistent with this
opinion.
3-28-11