In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐3006
WILLIAM R. KERR,
Petitioner‐Appellant,
v.
MICHAEL A. DITTMANN,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 04‐C‐1153 — Charles N. Clevert, Jr., Judge.
____________________
ARGUED OCTOBER 29, 2013 — DECIDED MARCH 5, 2014
____________________
Before WOOD, Chief Judge, and KANNE and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. The last time William Kerr was before
this court on appeal from the denial of his petition under 28
U.S.C. § 2254 for relief from his conviction for murdering his
wife’s lover, we found that he was entitled to an evidentiary
hearing on issues surrounding an alleged plea offer from the
state. See Kerr v. Thurmer, 639 F.3d 315 (7th Cir. 2011). Before
that hearing could take place, the Supreme Court vacated
2 No. 12‐3006
our judgment and remanded for reconsideration in light of
Lafler v. Cooper, 132 S. Ct. 1376 (2012). See Thurmer v. Kerr, 132
S. Ct. 1791 (2012); see also Kerr v. Dittmann, 468 F. App’x 636
(7th Cir. 2012). After conducting the necessary proceedings,
the district court found that the state never offered a plea
bargain to Kerr, and so it again denied Kerr’s petition. He
has now appealed, but we find no error (clear or otherwise)
in the district court’s finding. We therefore affirm.
I
Readers of our first opinion will recall that Kerr shot his
victim at point‐blank range after the lover came to Kerr’s
house for a showdown over the wife’s affections. Afterwards
Kerr turned himself in, and a jury ultimately convicted him
of first degree intentional homicide; the judge sentenced him
to life in prison, with eligibility for parole after 21 years. His
petition for a writ of habeas corpus, however, concerns what
happened (or did not) before the trial began. Kerr alleges
that the prosecutor, assistant district attorney Mark Wil‐
liams, offered a plea agreement under which Kerr would
plead guilty to first degree reckless homicide, a Class B felo‐
ny. According to Kerr, while his attorney Gerald Boyle cor‐
rectly told him what the offer was for, Boyle failed to advise
him correctly about the penalties he would face if he accept‐
ed it. Specifically, Kerr alleges that Boyle told him that first
degree reckless homicide in Wisconsin carries with it a sen‐
tence of life imprisonment with parole eligibility beginning
at 13 years (the same range as first degree intentional homi‐
cide). Kerr says that he rejected this alleged offer because the
sentencing range was the same as the one for intentional
homicide (which he was about to be tried on), and thus it
was not much of a deal. When this case was before us previ‐
No. 12‐3006 3
ously, we held that Kerr was entitled to an evidentiary hear‐
ing on the issue of the alleged offer of a plea bargain, and we
remanded for that purpose.
II
At the evidentiary hearing, the district court heard from
four witnesses: Kerr, Williams, Boyle, and Boyle’s co‐counsel,
his daughter Bridget Boyle (Bridget). The evidence was
mixed. On the one hand, both Boyle and Williams testified
that there was no offer at all. On the other hand, supporting
Kerr, was his own testimony, some of Bridget’s statements,
and letters between Bridget and Kerr since his incarceration.
The most contested piece of evidence came from a sealed
transcript that was created after Kerr’s sentencing. We begin
with a summary of what that transcript recounted.
A few nights before Kerr’s sentencing, Bridget visited
him in prison. During that meeting, Kerr made several accu‐
sations against the Boyles. Upon hearing about them, Boyle
asked to discuss the conflict in the judge’s chambers; it is this
discussion that was part of the sealed transcript.
One of Kerr’s accusations was that Boyle never brought
to his attention an alleged offer of a plea bargain from Wil‐
liams. Boyle responded with both a letter and personal visit,
at which point (according to Boyle) Kerr apologized. In re‐
counting this to the judge, Boyle speculated that Kerr’s com‐
plaints stemmed from the influence of a jailhouse lawyer.
Hearing this, the judge asked Boyle if he would like Kerr to
be brought back into chambers to state on the record that he
recanted his prior charges. The judge said that he asked be‐
cause once Kerr was back in prison, the chance that another
4 No. 12‐3006
jailhouse lawyer might make a similar suggestion was good.
Boyle agreed to have Kerr returned to chambers.
It was then that the disputed statement was made. Boyle
began by summarizing his recollection of the pretrial discus‐
sions for Kerr. He remembered that Kerr had told Boyle to
forget his accusations and to continue helping him with his
case. With regard to the alleged offer, Boyle said to Kerr
“you now understand that we really had no offer other than
the possibility of your pleading to life imprisonment with a
13—with a statutory minimum. And when I brought that to
you, I told you if there was any possibility at all, that was it.
And you told me you would not do that.” The judge then
asked Kerr if he agreed with what Boyle said and Kerr re‐
sponded that he did. To reconfirm, the judge asked Kerr,
“And [Boyle] didn’t fail to convey any potential negotiations
to resolve the case short of trial?” to which Kerr responded
“No.” Williams was in the room throughout this conversa‐
tion and said nothing.
At the evidentiary hearing, which obviously occurred
years after the sealed transcript had been created, Boyle stat‐
ed that while he could not remember the specifics of his dis‐
cussions with Williams, he did recall that the state did not
extend a formal offer that he could take back to Kerr. Boyle
also testified that he talked to Kerr about the possibility of
pleading guilty to the first degree intentional homicide
charge and then trying to convince the state to agree to a 13‐
year parole eligibility date. But, Boyle recounted, Kerr would
not agree to such a deal.
Like Boyle, Williams testified that there was never an of‐
fer. While he had a vague memory of Boyle’s asking him
what could happen in the case, he testified that he did not
No. 12‐3006 5
recall anything specific. Williams also testified that in 95 per‐
cent of his cases where he offers a plea bargain, the offer is in
writing. In this instance, everyone agreed that there was no
written agreement, nor were there any notes in his file indi‐
cating that he spoke to Boyle about a plea deal. While Wil‐
liams had difficulty remembering all of the specifics, he stat‐
ed that at the time of trial he was adamant about trying the
case, and that the victim’s family had been particularly in‐
sistent on its going forward as a first‐degree intentional case.
And, while he had overridden victim‐family wishes in the
past, he saw no reason to amend the first‐degree intentional
charge here. He commented that he had never offered a plea
bargain in a case like this, where an unarmed man was sit‐
ting at a table and then was blasted with a shotgun.
Williams was also asked whether he remembered the
conversation that was recounted in the sealed transcript.
While he said that he could not recall the conversation, he
thought after reading it that perhaps he told Boyle to see
whether Kerr would simply plead guilty to first‐degree in‐
tentional homicide. He reiterated, however, that he did not
have a clear recollection either way.
In contrast to Boyle’s and Williams’s testimony, which
supported the conclusion that there was no offer, the judge
was also presented with a number of letters written by Brid‐
get to Kerr while the latter was in prison. Those letters con‐
tain several references to a possible offer.
Before Kerr filed his post‐conviction state petition, he
wrote to the Boyles about his case and the purported offer
for first‐degree reckless homicide. In a June 21, 2002, re‐
sponse, Bridget wrote, “I recall that there was an offer made
to us on the day of trial. … It is my further recollection that
6 No. 12‐3006
you declined to accept the offer.” In response to a 2005 letter
from Kerr to Boyle, Bridget again responded on her father’s
behalf, stating that she “ha[d] the knowledge to answer the
questions” Kerr had about the alleged offer. She again recon‐
firmed that Williams made an offer on the morning of trial
but stated to Kerr, “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.”
Bridget also gave oral testimony at the evidentiary hear‐
ing—testimony that contradicted some of the points she had
made in the letters. She testified that instead of there being a
formal offer, she recalled only that Williams was talking
about the possibility of a guilty plea to second‐degree inten‐
tional homicide. That said, she also stated that while the of‐
fer was only informal, she believed that if Kerr had been in‐
terested, the offer would have been formalized. Not only did
Bridget not mention reckless homicide (the charge Kerr said
he was offered), but she also backtracked from the position
that there was ever a formal offer at all. Bridget conceded
that while she recalled the discussions centering on second‐
degree intentional homicide, once she saw her father’s
statements in the sealed transcript, she was confused. Her
confusion arose because in the sealed transcript her father
stated that if there was any offer it would have been life with
13 years parole eligibility, which was not the sentencing
range for second‐degree intentional homicide.
Kerr’s testimony was in stark contradiction to that of
Boyle and Williams. According to Kerr, right before the ju‐
rors came up, he, Boyle, and Bridget went into a small hold‐
ing cell where the Boyles told him that Williams had made
No. 12‐3006 7
him an offer that involved his pleading guilty to first‐degree
reckless homicide. That charge, Boyle supposedly told him,
carried with it a minimum of 13 years, 4 months, and a max‐
imum of life without parole. Kerr testified that he turned
down the deal because he figured the sentence he faced was
not materially different from the one he was already facing
on the charge of first‐degree intentional homicide.
After hearing all of this testimony and reviewing the
documentary record, the district court found that Williams
never made an offer to Kerr. While there were discussions
about a possible guilty plea, the court found nothing to indi‐
cate that Williams was prepared to accept a plea to a Class B
felony—the arrangement that Kerr believed he heard Boyle
communicate. Instead, the court thought it possible that
Boyle went to Williams and tried to suggest some kind of
pre‐trial resolution, and Williams then told Boyle to get back
to him after he figured out what Kerr was willing to do.
Thus, even though there was some communication between
Kerr and Boyle about a plea, no firm offer was ever extend‐
ed.
In reaching this conclusion, the district court began by
stating that in its view none of the statements made by the
Boyles supported Kerr’s assertion that the state offered to
allow him to plead guilty to first‐degree reckless homicide.
Indeed, crediting Williams’s testimony, the court found that
there was no offer at all. It noted Williams’s estimate that in
about 95 percent of his cases where there is an offer, he re‐
duces the offer to writing, yet here there was no written
agreement. There were no notes in his file concerning an of‐
fer. Williams’s explanation for why he would not accept a
guilty plea to second‐degree intentional homicide in a case
8 No. 12‐3006
like this was persuasive. In fact, Williams was adamant
about trying this case, which he considered cold‐blooded
murder. The court dismissed Bridget’s letters to Kerr as hav‐
ing been written without properly familiarizing herself with
the case. (The evidence indicated that she wrote them with‐
out even opening his file.) If anything, the court thought, she
was compounding any misunderstandings that previously
existed.
III
When a district court denies habeas corpus relief, we re‐
view that court’s findings of fact for clear error. Rittenhouse v.
Battles, 263 F.3d 689, 695 (7th Cir. 2001). The question wheth‐
er there was or was not an offer of a plea bargain is a quin‐
tessential question of fact: what happened? Given the con‐
flicting evidence before the district court, we see no clear er‐
ror in the determination that the assistant district attorney
never made an offer.
First, while Kerr argues that Boyle’s statement in the
sealed transcript definitively shows that there was an offer,
that is not the case. Even if that evidence strongly pointed to
an offer, there was conflicting evidence on the other side,
and the court chose to credit the latter evidence. In addition,
all Boyle said was, “you now understand that we really had
no offer other than of your pleading to life imprisonment
with a 13—with a statutory minimum. And when I brought
that to you, I told you if there was any possibility at all, that
was it. And you told me you would not do that.” One could
reasonably understand Boyle to be stating that there never
was an offer, but only the possibility of Kerr’s pleading
guilty to the charge of first‐degree intentional and hoping for
a favorable recommendation on parole eligibility. Kerr’s
No. 12‐3006 9
counsel’s inquiry about Kerr’s interest in pleading guilty to
the first‐degree intentional‐homicide charge is not itself an
offer.
Second, while Bridget’s letters could support a finding
that there was some kind of offer, it was within the district
court’s discretion to discount those letters and her testimony
more generally. The district court thought that Bridget was
careless when she responded to Kerr without first taking the
time to open his file. Whether she would have uncovered
helpful information in his file is beside the point—the dis‐
trict court was entitled to find that a person who responds to
a client about such serious topics without first consulting
that client’s file is not a particularly credible witness. Rea‐
sonable minds could differ about whether that is the best
conclusion to come to regarding Bridget, but we cannot say
the district court’s conclusion was erroneous.
Even though Bridget testified that she believed Kerr
could have pleaded guilty to second‐degree intentional hom‐
icide, that is a different deal from the one Kerr remembers
and the one Bridget originally seemed to endorse in her let‐
ters to Kerr. A reasonable person could interpret this dis‐
crepancy two ways: either it meant that there was an offer
but Bridget was confused about the specifics, or it meant (as
the district court found) that she was not well‐informed and
thus her testimony was unhelpful.
Relying on Rule 602 of the Federal Rules of Evidence,
Kerr also argues that because Boyle and Williams could not
remember all the specifics of the events in question, the dis‐
trict court erred in relying on their testimony at all. Kerr did
not, however, make this argument in the district court, and
so we will review it only for plain error. See United States v.
10 No. 12‐3006
Ali, 619 F.3d 713, 720 (7th Cir. 2010). Even under a more gen‐
erous standard of review, the argument goes nowhere. A
reasonable trier of fact could believe that Williams and Boyle
had personal knowledge of the facts about which they testi‐
fied. See United States v. Joy, 192 F.3d 761, 767 (7th Cir. 1999).
Boyle testified that it was clear to him that he was not going
to get a plea deal for Kerr. When asked why he held that be‐
lief, Boyle responded that Williams did not offer him any‐
thing and he knew that no offer was forthcoming. Pushed
again to explain whether he specifically recalled conversing
with Williams, he responded, “No, I know what happened.
When it happened? What words he used? I don’t know.”
Boyle was testifying about events that happened more than
12 years earlier; the district court was probably unsurprised
that he did not remember all the specifics. But what he testi‐
fied to was a fact that he did remember clearly: there was no
offer.
Finally there was Williams’s testimony, on which the dis‐
trict court relied most heavily. As we have already noted,
Williams recalled the critical details about his trial strategy.
The fact that he could not remember either the exact words
that he spoke to Boyle or the conversation recorded in the
sealed transcript does not matter. Williams unequivocally
testified that there was no offer. He remembered a variety of
reasons why this was the case, and he informed the court
about his usual practice. That was all relevant information,
and Williams was in a position to testify about it.
We do not mean to suggest that the district court came to
the only possible conclusion on these facts. There is enough
evidence in the record that a fact‐finder could have come out
either way. But whether we agree with the district court’s
No. 12‐3006 11
factual conclusion is not the question. There was conflicting
evidence and the district court had to make a finding; it did
so, and its finding is not clearly erroneous.
**********
Sufficient evidence supports the district court’s finding
that Kerr never received an offer for a plea bargain. We
therefore AFFIRM the judgment of the district court denying
Kerr’s petition for a writ of habeas corpus.