In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1156
MC W INSTON,
Petitioner-Appellant,
v.
A NA B OATWRIGHT,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 07-C-0777—William E. Callahan, Jr., Magistrate Judge.
A RGUED O CTOBER 25, 2010—D ECIDED A UGUST 19, 2011
Before W OOD , W ILLIAMS, and T INDER, Circuit Judges.
W OOD , Circuit Judge. For more than 130 years, federal
courts have held that discrimination in jury selection
offends the Equal Protection Clause. See, e.g., Smith v.
Texas, 311 U.S. 128, 130-32 (1940); Norris v. Alabama, 294
U.S. 587, 599 (1935); Neal v. Delaware, 103 U.S. 370, 397-
98 (1881). Early cases focused on the systemic exclusion
of racial minorities from juries through state statutes,
e.g., Strauder v. West Virginia, 100 U.S. 303 (1880); later,
2 No. 10-1156
attention turned to the race-based use of peremptory
challenges by prosecutors. Batson v. Kentucky, 476 U.S. 79
(1986). More recently, the constitutional prohibition
on discrimination in jury selection has been extended
beyond race to gender. Moreover, the fact that society as
a whole has an interest in the integrity of the jury
system has been acknowledged. The anti-discrimina-
tion principle is thus not just a privilege of the criminal
defendant; it constrains prosecutors, criminal defense
lawyers, and civil litigants alike. Intentional discrimina-
tion by any participant in the justice system undermines
the rule of law and, by so doing, harms the parties,
the people called for jury duty, and the public as a
whole. See J.E.B. v. Alabama, 511 U.S. 127 (1994) (applying
Batson to gender-based peremptory strikes); Georgia v.
McCollum, 505 U.S. 42 (1992) (applying Batson to
criminal defense counsel); Edmonson v. Leesville Concrete
Co., 500 U.S. 614 (1991) (applying Batson to civil litigants);
Powers v. Ohio, 499 U.S. 400, 405-07 (1991) (describing
the harms of discrimination in juror selection); Batson,
476 U.S. at 86-88. As this case illustrates, however, dis-
crimination in the selection of jurors has not yet been
eradicated.
In a nutshell, this case presents the question whether
the constitutional rights of the petitioner, MC Winston,
were violated when his lawyer used peremptory chal-
lenges systematically to eliminate all men from the jury
in his trial for second-degree sexual assault. Winston
argued that this violated both his rights under the
Equal Protection Clause and his Sixth Amendment right
to effective assistance of counsel under Strickland v.
No. 10-1156 3
Washington, 466 U.S. 668 (1984). His efforts were unsuc-
cessful both in state post-conviction proceedings and
then in the federal district court. Winston has now turned
to us.
Although our role in federal habeas corpus proceedings
is limited, it has not vanished altogether. We conclude
here that a defense lawyer’s intentional violation of the
Equal Protection Clause falls below the performance
standard established by Strickland. The more difficult
issue is whether Winston can show prejudice. Resolution
of that part of the Strickland inquiry requires us to
choose between two competing lines of authority from
the U.S. Supreme Court. Because the Court itself did not
signal how it would make that choice until well after
the state courts acted in Winston’s case, we have no
basis for finding that the state courts disregarded any
“clearly established” precedents. We therefore affirm
the judgment of the district court denying Winston’s
petition.
I
On October 5, 2001, a fifteen-year-old girl, Candida,
skipped school and stopped by Kandy Konnecktion, a
convenience store in Milwaukee. Though primarily a
candy shop, the store also sold cigarettes, which Candida
meant to buy illegally. Winston, an employee whom
Candida knew, was working that day. Upon her arrival,
Candida told Winston that she wanted to “kick it” for
the day. Around lunchtime, Winston left with her to
get Chinese food; he also bought gin, lemonade, and beer.
4 No. 10-1156
From there, as Candida would later testify at trial,
things escalated. The two returned to the store and
began to drink the alcohol while sitting on a mattress in
a back storage room. After Candida had consumed a
few concoctions of gin and lemonade and Winston
drank some beer, Winston began to stroke her hair, but
she slapped his hand away. On Candida’s account,
Winston then removed her clothing, fondled and licked
her breasts and genitals, and briefly had sex with her.
Winston admits hanging out and drinking alcohol with
Candida, but he denies ever touching her in an inappro-
priate or sexual manner.
In light of these events, the state charged Winston
with one count of second-degree sexual assault of a
child by means of sexual intercourse. See W IS. S TAT.
§ 948.02(2). Before trial, the state reduced that charge to
sexual assault on the basis of sexual contact. The jury,
however, failed to reach a verdict, and so the trial court
ordered a mistrial. The state then amended the charge
to include two counts of second-degree sexual assault—
one for sexual contact and one for sexual intercourse.
At that point, the court appointed new counsel for
Winston; this was the lawyer whose conduct is at issue
here. Winston went to trial in September 2002. The
second jury, which was composed entirely of women,
acquitted Winston of sexual intercourse but found him
guilty of unlawful sexual contact. After his motion for
a new trial was denied and with his third appointed
attorney, Winston appealed his conviction, which the
Wisconsin Court of Appeals affirmed. State v. Winston,
No. 03-3412-CR, 2004 WL 1982229 (Wis. Ct. App.
No. 10-1156 5
Sept. 8, 2004) (unpublished) (Winston I). The Wisconsin
Supreme Court summarily denied Winston’s petition for
review. State v. Winston, 693 N.W.2d 76 (Wis. 2005).
Proceeding without an attorney, Winston then filed a
motion for a new trial. He asserted that he had received
ineffective assistance of both trial and appellate counsel
in a number of respects, including failure to raise the
issue of prosecutorial misconduct, purposeful discrim-
ination in jury selection, and failure to request new
DNA testing. One new item of evidence obtained in
these post-conviction proceedings was a June 9, 2003,
letter from the appellate lawyer that explained why no
Batson claim had been raised in either the trial court or
on appeal. Although that letter failed initially to make
its way into the record in this court, Winston’s new
counsel have managed to find page one of the letter for
us. (We understand that the entire letter was before
the state courts.) The state post-conviction court stated
that the prosecutor’s peremptory challenges were used
to strike women from the panel. Page one of the letter
reports that the prosecutor used his seven peremptory
challenges to strike six women and one man, and the
defense lawyer used his to strike six men and one
woman. This information “supports [the defense law-
yer’s] statement that the all-woman jury resulted from
his actions.” Tellingly, post-conviction counsel opined
that this was not enough to support a claim of ineffec-
tive assistance, because it proved that the lawyer had a
strategic reason for his actions. Winston’s state appel-
late lawyer similarly explained that she refrained from
raising a Batson claim against the original trial lawyer
6 No. 10-1156
because “she learned from trial counsel that the reason
he struck the male jurors is because he thought that the
female jurors would be more critical of the victim.” The
state post-conviction court denied relief because it
found that striking the female jurors was “trial counsel’s
strategy” and “reasonable under the circumstances.”
On appeal during the post-conviction stage, the Wis-
consin Court of Appeals granted that “trial counsel’s
strategic reason for favoring female jurors was his
belief that they would be more critical of the victim
than male jurors would be.” State v. Winston, 2007 WL
586394, at ¶ 13 (Wis. Ct. App. Feb. 27, 2007) (unpublished)
(Winston II). It rejected Winston’s Strickland claim (and
the underlying Batson theory), however, because the
court found that the lawyer was following a reasonable
defense strategy and therefore, his actions were “ ‘virtually
unchallengable.’ ” Id. (quoting Strickland, 466 U.S. at 690-
91). In addition, the court noted that the result of
Winston’s second trial—acquittal of the sexual intercourse
offense—“blunts Winston’s contention” that he was
“harshly judged by the jury in part because it consisted
entirely of women.” Id. at ¶ 12-13. On July 17, 2007, the
Wisconsin Supreme Court again summarily denied
Winston’s petition for review. State v. Winston, 741 N.W.2d
239 (Wis. 2007).
Still representing himself, Winston filed a petition
for habeas corpus in federal court. The district court
denied the petition, but it granted Winston a certificate
of appealability limited to “whether trial counsel was
ineffective in his exercise of peremptory challenges, and
No. 10-1156 7
if so, whether a new trial should be ordered.” See 28
U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-41
(2003) (describing standards for granting a certificate
of appealability in Batson case). The district court ap-
pointed counsel, and this appeal followed.
II
A
Our review of Winston’s petition is governed by the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 28 U.S.C. § 2254, which “tightly constrains
the availability of the writ.” Stock v. Rednour, 621 F.3d
644, 649 (7th Cir. 2010). We may grant relief to Winston
“only if the state court’s decision was contrary to or an
unreasonable application of clearly established Supreme
Court precedent.” Kerr v. Thurmer, 639 F.3d 315, 318 (7th
Cir. 2011); see 28 U.S.C. § 2254(d)(1). Winston focuses
on the unreasonable application provision, which
demands more than “just” an incorrect application of
federal law. See Harrington v. Richter, 131 S. Ct. 770, 785-86
(2011). A state court unreasonably applies controlling
Supreme Court precedent when it “identifies the
correct governing legal rule” from the Court’s cases, “but
unreasonably applies it to the facts of the particular
state prisoner’s case.” Williams v. Taylor, 529 U.S. 362,
407 (2000). An unreasonable application also occurs
when a state court unreasonably refuses to extend a
governing legal principle to a context in which it should
have controlled, or “unreasonably extends a principle to
a situation in which it should not have controlled.” Jones
8 No. 10-1156
v. Basinger, 635 F.3d 1030, 1044 (7th Cir. 2011); see
Williams, 529 U.S. at 407.
The “unreasonable application” inquiry is an objec-
tive one. Williams, 529 U.S. at 409. That is, we consider
“whether it is possible fairminded jurists could dis-
agree” that the state court’s arguments or theories are
inconsistent with the holdings of prior decisions of the
Supreme Court. Richter, 131 S. Ct. at 786. The writ may
issue only when “the state court’s ruling on the claim
being presented in federal court was so lacking in justi-
fication that there was an error well understood and
comprehended in existing law beyond any possibility
for fairminded disagreement.” Id. at 786-87. As the Court
has made clear, section 2254(d)(1) “would be under-
mined if habeas courts introduced rules not clearly estab-
lished under the guise of extensions to existing law.”
Yarborough v. Alvarado, 541 U.S. 652, 666 (2004).
That said, AEDPA does not preclude all relief. “Certain
principles are fundamental enough that when new
factual permutations arise, the necessity to apply the
earlier rule will be beyond doubt.” Id. For that reason,
courts are not prohibited from finding an application of
a legal principle unreasonable when it involves different
facts from those of the case that announced the principle.
See Panetti v. Quarterman, 551 U.S. 930, 953 (2007);
Lockyer v. Andrade, 538 U.S. 63, 76 (2003).
B
To assess Winston’s claim, we begin by “determining
the relevant clearly established law,” as set forth by the
No. 10-1156 9
Supreme Court at the time the state court acted.
Yarborough, 541 U.S. at 660. This requires us to review
both the Strickland line of cases, which govern assertions
of ineffective assistance of counsel in violation of his
Sixth Amendment rights, and the Batson line of cases,
which underlie Winston’s arguments about his lawyer’s
unsatisfactory performance. In order to prevail on his
Strickland claim, Winston “had to show both that his
counsel provided deficient assistance and that there
was prejudice as a result.” Richter, 131 S. Ct. at 787. To
establish deficient performance, he had to show that
his “counsel’s representation fell below an objective
standard of reasonableness,” evaluated under “prevailing
professional norms,” Strickland, 466 U.S. at 687-88,
not “best practices or most common custom.” Richter, 131
S. Ct. at 788. Among other things, this means that
we do not second-guess the wide range of reasonable
professional assistance available to an attorney; our
scrutiny of a lawyer’s performance is “highly deferential.”
Strickland, 466 U.S. at 689. When a case reaches us
through section 2254(d)(1), we defer not only to counsel’s
reasonable choices, but also to the state court’s evalua-
tion of that issue. See Richter, 131 S. Ct. at 788. To
establish prejudice, “a challenger must demonstrate a
‘reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” Id.
at 787 (quoting Strickland, 466 U.S. at 694). Once again,
we must defer to the state court’s assessment of the
existence of such a reasonable probability.
10 No. 10-1156
Before this court, Winston relies exclusively on the
Supreme Court’s Batson cases to demonstrate that his
lawyer’s performance was constitutionally inadequate.
Batson applied the Equal Protection Clause to a prosecu-
tor’s use of peremptory challenges exercised on the
basis of race, 476 U.S. at 89-90, establishing a three-part
inquiry “designed to ensure that a State does not use
peremptory challenges to strike any . . . juror because of
his race.” Id. at 99 n.22. The upshot of Batson is that the
exclusion of even a single prospective juror for racial (or
comparable) reasons violates the Constitution. See J.E.B.,
511 U.S. at 142 n.13; see also, e.g., Snyder v. Louisiana,
552 U.S. 472, 478 (2008). Typically, to prove an equal
protection violation under Batson, “once the opponent of
a peremptory challenge has made out a prima facie case
of racial discrimination (step one), the burden of produc-
tion shifts to the proponent of the strike to come
forward with a race-neutral explanation (step two). If a
race-neutral explanation is tendered, the trial court
must then decide (step three) whether the opponent of
the strike has proved purposeful discrimination.” Purkett
v. Elem, 514 U.S. 765, 767 (1995) (per curiam).
Though Batson dealt with race discrimination by pros-
ecutors, its legal principle has been extended to pro-
hibit certain other forms of intentional discrimination
in jury selection. In Powers v. Ohio, the Supreme Court
rejected the premise that persons of the same race
cannot discriminate on the basis of their shared race
and held that “a criminal defendant may object to race-
based exclusions of jurors effected through peremptory
challenges whether or not the defendant and the
No. 10-1156 11
excluded juror share the same races.” 499 U.S. 400, 402
(1991). To hold otherwise and permit such a race-based
inference, it said, would “accept as a defense to racial
discrimination the very stereotype the law condemns.” Id.
at 410. Powers also emphasized that the constitutional
prohibition on discriminatory jury selection serves not
only the rights of the criminal defendant but also the
rights of the prospective juror “not to be excluded from
[a petit jury] on account of race.” Id. at 409. In addition,
because the “purpose of the jury system is to impress
upon the criminal defendant and the community as a
whole that a verdict of conviction or acquittal is given
in accordance with the law by persons who are fair,” id.
at 413, prohibiting discrimination in jury selection
also preserves the integrity of the criminal justice sys-
tem. See id. (“The verdict will not be accepted or under-
stood in these terms [of fairness] if the jury is chosen
by unlawful means at the outset.”).
The teaching of Batson and Powers is simple: equal
protection goes both ways. This is why Georgia v.
McCollum held that “the Constitution prohibits a crim-
inal defendant from engaging in purposeful discrimina-
tion on the ground of race in the exercise of peremptory
challenges”; “the exercise of a peremptory challenge
must not be based on either the race of the juror or the
racial stereotypes held by the party.” 505 U.S. 42, 59 (1992).
Like a prosecutor, the criminal defense lawyer upsets
the fairness of, and public confidence in, the criminal
justice system by discriminating in the selection of the
jury. See id. at 48-50 & n.6.
12 No. 10-1156
J.E.B. v. Alabama applied Batson to the use of peremp-
tory challenges on the basis of gender; it held that
“gender, like race, is an unconstitutional proxy for juror
competence and impartiality.” 511 U.S. at 129. Following
up on Powers and McCollum, J.E.B. reiterated the harm
caused by stereotypes in jury selection: “Discrimination
in jury selection, whether based on race or gender,
causes harm to the litigants, the community, and the
individual jurors who are wrongfully excluded from
participation in the judicial process. The litigants are
harmed by the risk that the prejudice that motivated
the discriminatory selection of the jury will infect the
entire proceedings,” and the “community is harmed by
the State’s participation in the perpetuation of invidious
group stereotypes and the inevitable loss of confidence
in our judicial system that state-sanctioned discrimina-
tion in the courtroom engenders.” Id. at 140. Where
“gender-related issues are prominent,” the dangers of
stereotypes and their attendant potential to create
cynicism about the jury’s neutrality are “particularly
acute.” Id.
C
Once a Batson violation is proved, the question of
remedy arises. We look at this in some detail, because
in the end it is pertinent to Winston’s ability to satisfy
the standards prescribed by 28 U.S.C. § 2254(d)(1). To
keep matters clear, we look first at the straightforward
case, in which the Batson issue comes up directly (either
from federal court or state court), and we then explore
No. 10-1156 13
the complications that arise when it must be filtered
through the lens of collateral review for ineffective assis-
tance of counsel. In the former context, Batson is clear: “if
the trial court decides that the facts establish, prima
facie, purposeful discrimination and the prosecutor does
not come forward with a neutral explanation for his
action, our precedents require that petitioner’s conviction
be reversed.” Batson, 476 U.S. at 100 (emphasis added).
Notably, the Court made no mention of any kind of
harmless error inquiry.
Batson itself as well as the cases that follow it confirm
that when a violation of equal protection in jury
selection has been proven, the remedy is a new trial,
without the need for any inquiry into harmless error
or examination of the empaneled jury. (We set to one
side the post-Batson decisions that raise only the
question whether the proper procedures were fol-
lowed, see, e.g., Purkett, 514 U.S. at 767-70, or whether
additional evidence is necessary to determine the basis
for a juror strike, e.g., McCollum, 505 U.S. at 59. Neither
of those problems exists here.) In fact, since a time well
before Batson was decided, the Court has followed
an automatic reversal rule once a violation of equal pro-
tection in the selection of jurors has been proven. See,
e.g., Smith, 311 U.S. at 132; Pierre v. Louisiana, 306 U.S.
354, 362 (1939); Neal, 103 U.S. at 397-98; Strauder, 100
U.S. at 312. That rule is simple: “If there has been dis-
crimination, whether accomplished ingeniously or ingenu-
ously, the conviction cannot stand.” Smith, 311 U.S. at 132.
Batson relied on three cases that employed this
remedial approach. 476 U.S. at 100. First, Whitus v.
14 No. 10-1156
Georgia held that “a conviction cannot stand if it is based
on an indictment of a grand jury or the verdict of a
petit jury from which Negroes were excluded by reason
of their race.” 385 U.S. 545, 549-50 (1967). Likewise,
Hernandez v. Texas held that where “[t]he result be-
speaks discrimination, whether or not it was a con-
scious decision on the part of any individual jury com-
missioner,” the “judgment of conviction must be re-
versed.” 347 U.S. 475, 482 (1954). Finally, Patton v. Missis-
sippi held that “[w]hen a jury selection plan, whatever it
is, operates in such way as always to result in
the complete and long-continued exclusion of any . . .
racial group, indictments and verdicts returned against
them by juries thus selected cannot stand.” 332 U.S. 463,
469 (1947). Patton further explained that while a con-
viction must be reversed in the first instance, this “does
not mean that a guilty defendant must go free. For in-
dictments can be returned and convictions can be
obtained by juries selected as the Constitution com-
mands.” Id. (citing Hill v. Texas, 316 U.S. 400, 406 (1942)).
Put in the Court’s current terminology, these cases
indicate that intentional discrimination on the basis of
race in jury selection is a structural error. See Arizona
v. Fulminante, 499 U.S. 279, 308-10 (1991). Structural
errors are “defects in the constitution of the trial mecha-
nism, which defy analysis by ‘harmless-error’ standards,”
because the “entire conduct of the trial from beginning
to end is . . . affected” by the error. Id. at 309-10; see also
Neder v. United States, 527 U.S. 1, 8 (1999) (“Such errors
infect the entire trial process and necessarily render a
trial fundamentally unfair.” (internal quotation marks
No. 10-1156 15
and citation omitted)). In addition, structural errors
“require automatic reversal” because they affect the
“framework in which the trial proceeds, as opposed to
errors in the trial process itself.” United States v. Harbin,
250 F.3d 532, 542 (7th Cir. 2001); see also Washington v.
Recuenco, 548 U.S. 212, 218 (2006) (explaining that when
an “error is structural” it “thus requires automatic re-
versal”).
The legal principle that a substantive Batson violation
requires reversal without further ado finds support in
other cases examining the effects of equal protection
violations in the selection of juries. Batson affirmed
that “the basic principles prohibiting exclusion of
persons from participation in jury service on account
of their race ‘are essentially the same for grand juries
and for petit juries.’ ” Batson, 476 U.S. at 84 n.3 (quoting
Alexander v. Louisiana, 405 U.S. 625, 626 n.3 (1972)); see
also Whitus, 385 U.S. at 549-50; Patton, 332 U.S. at 469;
cf. Pierre, 306 U.S. at 362 (“Principles which forbid dis-
crimination in the selection of Petit Juries also govern
the selection of Grand Juries.”). Bearing in mind this
equivalence between discrimination in the grand and
petit juries, we find Vasquez v. Hillery instructive for the
problem before us. 474 U.S. 254 (1986). In Hillery, the
Court held “that discrimination on the basis of race in
the selection of grand jurors ‘strikes at the fundamental
values of our judicial system and our society as a
whole.’ ” It refused to extend the harmless-error standard
to this context because such discrimination is a form of
structural error. Id. at 261 (quoting Rose v. Mitchell, 443
U.S. 545, 556 (1979)); see also Recuenco, 548 U.S. at 218
16 No. 10-1156
n.2 (classifying Hillery as involving structural error);
Neder, 527 U.S. at 8 (same); Fulminate, 499 U.S. at 310
(same).
The hallmark of a structural error is that the error
persists throughout the proceeding and relates to the
framework in which a trial proceeds. A Batson error
meets that description: “The overt wrong, often ap-
parent to the entire jury panel, casts doubt over the ob-
ligation of the parties, the jury, and indeed the court
to adhere to the law throughout the trial of the cause. . . .
The composition of the trier of fact itself is called in
question, and the irregularity may pervade all the pro-
ceedings that follow.” Powers, 499 U.S. at 412-13. It
is therefore not surprising that in a case decided
several years after Winston’s state-court proceedings,
the Supreme Court unanimously affirmed that Batson is
an “automatic reversal precedent[].” Rivera v. Illinois,
129 S. Ct. 1446, 1455 (2009). Rivera distinguishes be-
tween the remedy required for an ordinary error in
the denial of a peremptory challenge and the kind of
constitutional error that occurs when a juror is excluded
on racial grounds. In the former case, harmless error
analysis is proper, and the court must decide whether
the jurors who actually sat were qualified and unbiased.
If they were, then the erroneous use of the peremptory
challenge is harmless. The Court addressed Batson, in
contrast, in a section of the opinion discussing the auto-
matic reversal precedents. Id. at 1455-56.
It was Rivera that clarified the boundary between these
two lines of authority relating to peremptory challenges—
No. 10-1156 17
those that do and do not qualify for automatic reversal.
When the defendant’s complaint is that he was forced
to use a peremptory challenge as a result of the trial
court’s erroneous denial of a challenge for cause, the
Court has required a showing of prejudice. See United
States v. Martinez-Salazar, 528 U.S. 304 (2000). In Martinez-
Salazar the Court explained that “if the defendant elects
to cure such an error by exercising a peremptory chal-
lenge, and is subsequently convicted by a jury on which
no biased juror sat, he has not been deprived of any rule-
based or constitutional right.” Id. at 307. On the surface,
Rivera was a case close to the boundary of these two
lines. There the defendant challenged the trial court’s
rejection of his peremptory challenge to an Hispanic
juror, who wound up sitting on his trial jury. The
Supreme Court of Illinois held that the court should have
allowed the challenge, but it found that the error was
harmless. Upholding that decision, the Supreme Court
recognized that Batson concerns lay behind the trial
court’s ruling. Importantly, however, the Supreme Court
of Illinois had found that “the record fails to support
a prima facie case of discrimination of any kind.” Rivera,
129 S. Ct. at 1452. Under those circumstances, the Court
followed Martinez-Salazar and held that “the erroneous
denial of a peremptory challenge” does not “require[]
automatic reversal of a defendant’s conviction as a
matter of federal law.” Id. at 1452. Instead, errors
are to be assessed by inquiring whether the jury
eventually empaneled was impartial, qualified, and not
challengeable for cause. See id. at 1454; Martinez-
Salazar, 528 U.S. at 316-17; Ross v. Oklahoma, 487 U.S. 81, 91
18 No. 10-1156
(1988); United States v. Polichemi, 219 F.3d 698, 705-06 (7th
Cir. 2000).
If a Batson error has been proven, however, Rivera
confirmed that a different rule applies—one of automatic
reversal. Before we can apply these rules to Winston’s
case, we must address two additional complications:
first, the fact that it was his own lawyer who engaged
in intentional discrimination in his jury strikes, and
second, the fact that this case does not come to us on
direct appeal. Normally, a defendant is bound by his
lawyer’s choices, because the lawyer acts as his agent.
See United States v. Boyd, 86 F.3d 719, 722 (7th Cir. 1996).
But, as Boyd recognized, the general rule is that when
the lawyer’s performance falls below the Sixth Amend-
ment bar and the defendant is prejudiced by that weak
performance, then the defendant is entitled to relief.
Our task is to see how that rule of agency, the Batson
rule, and the Sixth Amendment right to the effective
assistance of counsel intersect.
III
The governing state court opinion in this case was the
one issued by the Wisconsin Court of Appeals in Winston
II, see McFowler v. Jaimet, 349 F.3d 436, 446 (7th Cir. 2003),
since the Wisconsin Supreme Court chose not to ex-
amine the intermediate court’s decision. We limit our-
selves to the record that was before the state court, and
presume the findings of fact therein are correct. 28 U.S.C.
§ 2254(e)(1); Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
No. 10-1156 19
A
As relevant here, Winston II disposed of Winston’s
claim in the following parts of the court’s opinion:
¶ 12. Winston’s third ineffective assistance claim
involves trial counsel’s alleged elimination of men
from the jury. Winston contends that he was harshly
judged by the jury in part because it consisted
entirely of women. We reject that contention.
¶ 13. First, this same all female jury acquitted
Winston of the sexual assault involving inter-
course and convicted him only of the sexual assault
involving contact. This result blunts Winston’s con-
tention. Second, appellate counsel declined to raise
this claim on direct appeal because the trial counsel’s
strategic reason for favoring female jurors was his
belief that they would be more critical of the victim
than male jurors would be. That defense strategy
was reasonable, and thus, “virtually unchallengable.”
Strickland, 466 U.S. at 690-91. Consequently, an inef-
fective assistance claim cannot be maintained on
this basis.
Winston II, 2007 WL 586394 (citations and footnote omit-
ted).
As we read this, the court offered two reasons for
rejecting Winston’s Strickland claim: first, it thought
that the fact that the jury acquitted him on one count
demonstrated that he was not prejudiced by his lawyer’s
conduct; and second, it assumed that the fact that the
lawyer had a strategic reason for what he did was
20 No. 10-1156
enough to establish that his performance was not con-
stitutionally inadequate. The latter point was both a
finding of fact and a ratification of the lawyer’s
conduct: Winston’s counsel struck male jurors on the
basis of their gender because he believed that all men,
because they are men, would be unsympathetic to his
client’s case. And indeed, the record bears out the fact
that this was the attorney’s reasoning. He conceded
frankly that the “all-women jury resulted from his ac-
tions.” At the time we heard oral argument in this case,
the parties debated whether an evidentiary hearing
would be appropriate for further factual development
on this issue. But since then, the Supreme Court
has spoken in a way that rules out that possibility for
a petitioner like Winston who is relying on 28 U.S.C.
§ 2254(d)(1). See Pinholster, 131 S. Ct. at 1398-1400.
Neither party suggests anything to rebut the presump-
tion that these facts are correct. 28 U.S.C. § 2254(e). Thus,
the sufficiency of the evidence used to discover coun-
sel’s reasons for the strikes—whether it be in a letter or
a hearing before the state trial court—is not before us.
B
This brings us to the question whether Winston’s
lawyer performed inadequately, as Strickland defines
that concept. In light of Batson, Powers, McCollum, and
J.E.B., we conclude that the answer is yes. Deliberately
choosing to engage in conduct that the Supreme
Court has unequivocally banned is both professionally
irresponsible and well below the standard expected of
No. 10-1156 21
competent counsel. Whether the state court’s conclu-
sion to the contrary represented an unreasonable applica-
tion of clearly established Supreme Court precedent is a
more difficult question, as we explain below. Eight years
before Winston’s trial began, the Supreme Court had
squarely held that intentional discrimination on the
basis of gender was forbidden in peremptory challenges.
J.E.B., supra. Indeed, even earlier, in 1992 McCollum ex-
plicitly removed “discrimination” from a long list of
permissible reasons defense counsel might have for
striking a prospective juror. See 505 U.S. at 58 (“[N]either
the Sixth Amendment right [to effective assistance of
counsel] nor the attorney-client privilege gives a crim-
inal defendant the right to carry out through counsel
an unlawful course of conduct.”). Calling the lawyer’s
actions “strategic” does not help: as the Court has repeat-
edly stated, the Batson rule exists not only to protect the
criminal defendant, but also to protect the prosecutor’s
interests, the interests of the prospective jurors, and
society’s interest in an unbiased system of justice. We
may assume that defense counsel can waive the rights
of his client, but he has no authority to waive the
other rights implicated by Batson.
Intentionally violating the Constitution by discrim-
inating against jurors on account of their sex is not con-
sistent with, or reasonable under, “prevailing profes-
sional norms.” Strickland, 466 U.S. at 688. To the con-
trary, Wisconsin forbids lawyers from engaging in un-
lawful representation. See W IS. R ULES OF P ROF’L C ONDUCT,
at Preamble (“A lawyer’s conduct should conform to the
requirements of the law.”); id. at R. 3.1(a) (“In representing
22 No. 10-1156
a client, a lawyer shall not . . . knowingly advance a
claim or defense that is unwarranted under existing
law.”). Professional rules typically prohibit lawyers
from engaging in conduct prejudicial to the administra-
tion of justice. See, e.g., M ODEL R ULES OF P ROF’ L C ONDUCT
R. 8.4(d) cmt.; ILL. R ULES OF P ROF’L C ONDUCT R. 8.4(a)(5);
M INN. R ULES OF P ROF ’ L C ONDUCT R. 8.4(d); W ASH . R ULES
OF P ROF’ L C ONDUCT R. 8.4(d). Some states’ provisions ex-
plicitly forbid lawyers from engaging in discrimination
on the basis of race, sex, national origin, age, sexual
orientation or socioeconomic status, and they specify
that this prohibition applies to jurors. See, e.g., FLA. R ULES
OF P ROF’ L C ONDUCT R. 4-8.4(d); ILL. R ULES OF P ROF ’ L
C ONDUCT R. 8.4(a)(5); M INN. OF R ULES OF P ROF’L C ONDUCT
R. 8.4(g); N.J. R ULES OF P ROF’L C ONDUCT R. 8.4(g); W ASH .
R ULES OF P ROF’ L C ONDUCT R. 8.4(g). Racist or sexist con-
duct can be the basis for professional sanction, censure, or
even disbarment. See S TEPHEN G ILLERS, R EGULATION OF
L AWYERS: P ROBLEMS OF L AW AND E THICS 792-799 (8th ed.
2009). In light of these well-established professional
norms, we have no trouble concluding that trial counsel’s
decision to strike jurors based solely upon their gender
constituted deficient performance.
Troublingly, before this court Wisconsin has taken the
position that “[d]efense lawyers often ignore, or even
perpetrate, violations of their clients’ constitutional
rights in the hopes of gaining a strategic advantage.” It
insists that no Supreme Court precedent establishes
that deficient performance occurs just because an
“attorney exercises his professional judgment based on
No. 10-1156 23
the belief that gender differences may influence a
jury’s verdict in his client’s favor.” But that is not true.
Quoting its earlier decision in Nix v. Whiteside, 475 U.S.
157, 166 (1986), the Supreme Court in McCollum held in
a Batson case that “[d]efense counsel is limited to ‘legiti-
mate, lawful conduct.’ ” 505 U.S. at 57. We do not know
where the state is getting its data from, but we hope
that it is mistaken about the frequency of deliberate
constitutional violations on the part of the defense bar.
To the extent that such misconduct exists, we are
certainly not going to give it our imprimatur. Cf. J.E.B., 511
U.S. at 154 (Kennedy, J., concurring in the judgment)
(“Nothing would be more pernicious to the jury system
than for society to presume that persons of different
backgrounds go to the jury room to voice prejudice.”).
(For the record, we would say the same thing about a
defense lawyer who tried to gain an advantage for her
client by bribing the judge, or by suborning perjury, or in
any other plainly unlawful way.) We conclude, in sum-
mary, that Winston’s lawyer’s performance was constitu-
tionally inadequate. Ordinarily we would need to move
on to the question whether the Supreme Court of the
United States had clearly established this proposition
by the time the state courts acted. In this case, however,
we have no need to undertake that inquiry, because of
our conclusion on the prejudice branch of the Strickland
inquiry, to which we now turn.
C
Winston cannot prevail unless he can also show that
he was prejudiced by his lawyer’s ineffective perfor-
24 No. 10-1156
mance. And here we encounter a problem: while a direct
Batson claim would be viewed as a structural error and
thus not subject to a harmless-error rule, a Strickland
argument requires an examination of prejudice. But the
Supreme Court has said that structural errors fall within
“a limited class of fundamental constitutional errors
that defy analysis by harmless error standards.” Neder,
527 U.S. at 7 (internal quotation marks deleted). If, there-
fore, analysis is impossible for harmless-error purposes,
then it is hard to see how it would be possible for pur-
poses of Strickland prejudice—after all, prejudice is the
central inquiry in a harmless error inquiry. But a closer
look at Neder reveals that the Court was not so much
dispensing with harmless error as it was finding that
structural errors “are so intrinsically harmful as to re-
quire automatic reversal.” Id. Translated into Strickland’s
terms, it was saying that such errors inevitably “under-
mine[] confidence in the outcome” of a proceeding. 466
U.S. at 694.
The state’s argument that Winston II adequately ad-
dressed prejudice under Strickland when it concluded
that the result of the trial “blunts Winston’s contention”
that he was “harshly judged” by the all-female jury,
2007 WL 586394, at ¶ 12-13, does not come to grips with
the consequences of Hillery, Neder, and Strickland. Hillery
held that “when a petit jury has been selected upon
improper criteria . . . we have required reversal of the
conviction because the effect of the violation cannot be
ascertained. . . . Like these fundamental flaws, which
never have been thought harmless, discrimination in the
grand jury undermines the structural integrity of the
No. 10-1156 25
criminal tribunal itself, and is not amenable to harmless-
error review.” 474 U.S. at 263-64. Prejudice, in other
words, is automatically present when the selection of a
petit jury has been infected with a violation of Batson
or J.E.B.
D
Even this, however, is not enough to allow Winston to
prevail. All we have shown thus far is that the state
court erred in its evaluation of Winston’s Strickland
claim. But as we acknowledged at the outset, more than
error must be shown in order to obtain relief under
section 2254. The state court’s resolution must be so far
out of bounds that it is objectively unreasonable. The
question is therefore whether the state court trans-
gressed that outer perimeter when it failed to see the
link between the analysis of prejudice in the structural
error cases and the analysis of prejudice in the Strickland
line of cases. That link would have been apparent,
we believe, if the state court had not made the error
of assuming that lawyers are permitted intentionally to
violate the Constitution when they represent criminal
defendants. The Supreme Court, as we have explained
above, has emphatically rejected that proposition.
Nevertheless, as the state points out, the Supreme
Court has never spoken to exactly this set of facts. That
alone is not enough to doom Winston’s petition; Williams
v. Taylor holds that an unreasonable application of law
exists “if the state court either unreasonably extends a
legal principle from our precedent to a new context
26 No. 10-1156
where it should not apply or unreasonably refuses to
extend that principle to a new context where it should
apply.” 529 U.S. at 407 (emphasis added). In other words,
where the legal principle compels a certain outcome,
AEDPA does not require the facts to conform to “some
nearly identical” pattern before relief is possible. Panetti,
551 U.S. at 953. We must therefore decide if the state
courts here acted unreasonably, as Williams requires.
As we have already explained, the legal principle at
stake here is the one calling for automatic reversal in
response to proven Batson violations. It is true that
Winston has not raised a direct Batson complaint (be-
cause the failing was that of his own lawyer); instead
he complains of ineffective assistance of counsel. But
rules of automatic reversal are not unknown in the
Sixth Amendment context. Strickland itself teaches
that there are times when prejudice is so likely that “case-
by-case inquiry into prejudice is not worth the
cost”—“prejudice is presumed.” 466 U.S. at 692. Granted,
instances of presumed prejudice are rare, but several
are well established: when counsel is not present at a
“critical stage” of a hearing, see United States v. Cronic, 466
U.S. 648 (1984), including situations where “counsel
has entirely failed to function as the client’s advocate,”
Florida v. Nixon, 543 U.S. 175, 190 (2004); when a defense
lawyer has an actual conflict of interest, see Cuyler v.
Sullivan, 446 U.S. 335 (1980); when a criminal defendant
does not receive appointed counsel on direct appeal, see
Penson v. Ohio, 488 U.S. 75 (1988), or when a non-pro se
defendant is denied counsel of her choice, see United
States v. Gonzalez-Lopez, 548 U.S. 140 (2006). The same
No. 10-1156 27
result, in our view, must hold for Batson errors, in light of
the Supreme Court’s teachings in Hillery and the other
cases we discussed earlier. Unconstitutional juror
strikes, like other structural errors, create the kind of
problem that “def[ies] analysis by harmless error stan-
dards.” Neder, 527 U.S. at 7; see Hillery, 474 U.S. at 262.
If this is a strong message from the Supreme Court,
however, it must yield to an even stronger command:
when federal courts are applying section 2254, they must
respect the line between applications of existing
principles to new situations and extensions of the law.
While we are persuaded that prejudice automatically
flows from a deliberate Batson violation, we recognize
that the Supreme Court of the United States had not yet
taken this step at any point while Winston’s case was
before the Wisconsin courts. Indeed, our own decision
in Boyd contains dicta that suggests that something like
the Martinez-Salazar inquiry should apply here, 86 F.3d
at 722. A division of authority in the lower courts
provides some evidence that the matter has not yet
been clearly established by the Supreme Court. And the
lower courts were indeed divided on this point. See, e.g.,
Henderson v. La Marque, 2002 WL 1034047, at *11 n.3 (N.D.
Cal. May 15, 2002); compare Boyd, 86 F.3d 719 (requiring
a defendant to demonstrate ineffective assistance for a
Batson-McCollum violation), with United States v. Huey,
76 F.3d 638 (5th Cir. 1996) (granting a new trial, with-
out any showing of ineffective assistance, for a proven
Batson-McCollum violation). It was not until Rivera,
decided over a decade after Boyd and Huey and two
years after Winston II, that the Supreme Court explained
28 No. 10-1156
that a Martinez-Salazar problem is fundamentally dif-
ferent from a proven Batson violation. The former is
amenable to harmless-error analysis, but the latter calls
for automatic reversal. The Martinez-Salazar rule concerns
peremptory challenges, which are merely “ ‘a creature of
statute’ ” and address a procedure to which a defendant
has “no freestanding constitutional right.” Rivera, 129 S. Ct.
at 1454 (quoting Ross v. Oklahoma, 487 U.S. 81, 89 (1988)).
By contrast, Batson cases are “automatic reversal prece-
dents” because they “involve[] constitutional errors con-
cerning the qualification of the jury.” Id. at 1455.
But Rivera lay in the future at the time the Wisconsin
courts acted. It was not outside the boundaries of reason-
able differences of opinion, given the state of the law at
the time, for those courts to predict that the Supreme
Court would apply a harmless-error standard even to
intentional Batson violations like the one committed by
Winston’s lawyer. We therefore A FFIRM the judgment
of the district court denying Winston’s section 2254
petition.
8-19-11