Cornell Reynolds v. Randall Hepp

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 16‐3430 CORNELL D. REYNOLDS, Petitioner‐Appellant, v. RANDALL HEPP, Respondent‐Appellee. ____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 16‐CV‐508 — William C. Griesbach, Chief Judge. ____________________ ARGUED JANUARY 4, 2018 — DECIDED AUGUST 30, 2018 ____________________ Before WOOD, Chief Judge, and HAMILTON and BARRETT, Circuit Judges. HAMILTON, Circuit Judge. Petitioner‐appellant Cornell Reynolds seeks a writ of habeas corpus under 28 U.S.C. § 2254. In 2002, a Wisconsin jury convicted Reynolds in a fatal carjacking. He seeks habeas relief based on two alleged viola‐ tions of his Sixth and Fourteenth Amendment right to coun‐ sel. First, he argues that Wisconsin violated his right to coun‐ sel when it stopped paying his state‐appointed lawyer during 2 No. 16‐3430 his direct appeal. In the alternative, he argues that he received ineﬀective assistance from his counsel during his direct ap‐ peal and trial. The district court denied relief. We aﬃrm. I. Factual & Procedural Background In May 2001, two young men approached a group of teen‐ agers in a parking lot in Milwaukee. One of the men shot two of the teenagers, killing one of them. The two men drove away in the car the two teenage victims had been driving. Reynolds was arrested two days later after he was identified as the shooter. Wisconsin indicted him for carjacking resulting in death, carjacking resulting in bodily harm, and possessing a firearm as a felon. A jury convicted Reynolds on all three charges. Reynolds sought relief through a direct appeal, a state post‐conviction proceeding, and a state habeas corpus petition. Finding no relief in the state courts, he filed his fed‐ eral habeas corpus petition. We start by summarizing the rel‐ evant facts at each stage of Reynolds’s case. A. Trial & Direct Appeal Before trial, Reynolds raised an equal protection challenge to Wisconsin’s felony carjacking statute. The trial court re‐ jected the challenge, and the case proceeded to trial. The main issue at trial was identification. The prosecution called four eyewitnesses, including the surviving gunshot victim. Each identified Reynolds as one of the two carjackers and as the shooter of at least one victim. Reynolds did not testify and did not call any witnesses. The jury convicted Reynolds of car‐ jacking resulting in death, carjacking resulting in bodily harm, and possession of a firearm by a felon. The Wisconsin State Public Defender’s Oﬃce appointed attorney Terry Williams as Reynolds’s post‐conviction and No. 16‐3430 3 appellate counsel. With his counsel’s help, Reynolds moved for a new trial on the basis that his trial counsel provided in‐ eﬀective assistance and should have raised an alibi defense.1 Reynolds submitted two aﬃdavits describing his wherea‐ bouts on the night of the shooting. The trial court found that the aﬃdavits did not help Reynolds since they placed him just a few minutes from the crime scene around the time of the shooting. The court denied Reynolds’s motion without an ev‐ identiary hearing, concluding that he had failed to raise facts showing ineﬀective assistance or prejudice to his defense. On direct appeal, Reynolds argued that he was entitled to an evidentiary hearing on his ineﬀective assistance claim and added an argument that his trial counsel failed to cross‐ examine the eyewitnesses adequately. The Wisconsin Court of Appeals reversed and remanded with instructions to hold what Wisconsin courts call a Machner hearing. See State v. Machner, 285 N.W.2d 905 (Wis. App. 1979). On remand, the trial court held an evidentiary hearing, considered both arguments, and denied Reynolds’s motion for a new trial. Reynolds appealed again. At some point after the eviden‐ tiary hearing—and while Reynolds’s appeal was pending— staﬀ at the Wisconsin State Public Defender’s Oﬃce told at‐ torney Williams that he had spent too much time on his cases. The State Public Defender’s Oﬃce informed Williams that they would not pay him for some of the work he had com‐ pleted on Reynolds’s appeal and that they would not pay him for any more work on the case. They also told Williams that they would no longer assign cases to him. Handling such a 1 In Wisconsin, defendants generally begin their direct appeals by moving for a new trial in the trial court. See Wis. Stat. § 809.30(2)(h). 4 No. 16‐3430 management issue by cutting oﬀ attorney Williams without taking concrete steps to ensure that his clients would continue to be represented would seem highly unusual and troubling. The record before us simply does not show what eﬀorts the staﬀ might have made to protect Reynolds’s interests. Reynolds did not immediately learn that the State Public Defenders had stopped paying his attorney. But when he asked Williams to pursue in the second appeal the equal pro‐ tection challenge to the carjacking statute—which trial coun‐ sel had unsuccessfully raised before trial—Williams told him that the State was not paying him anymore and that he could not aﬀord to investigate that additional question. Reynolds could not aﬀord to pay for additional work, even assuming that Williams could have accepted private payments on top of the earlier public defender payments. The result was that Wil‐ liams did not investigate the equal protection challenge as a possible argument on appeal. Nevertheless, Williams com‐ pleted briefing in the Wisconsin Court of Appeals on the inef‐ fective‐assistance claims and later filed a petition for review with the Wisconsin Supreme Court. The Court of Appeals af‐ firmed the denial of a new trial, and the Wisconsin Supreme Court denied review. B. Collateral Post‐Conviction Relief In October 2010, Reynolds filed a pro se collateral post‐ conviction motion in the trial court under Wis. Stat. § 974.06. As relevant here, Reynolds argued that he received ineﬀective assistance of appellate counsel because attorney Williams failed to argue that his trial counsel should have challenged the jury instructions on carjacking. The formal charging in‐ strument had said that Reynolds took the vehicle “by use of” a dangerous weapon, but the jury was instructed to convict No. 16‐3430 5 even if it found that he took the car by only “threat of the use of a dangerous weapon.” Reynolds argued that the jury should have been instructed using the language in the formal charges and that Williams was ineﬀective for not raising this argument on appeal. The trial court denied the motion without a hearing, and the Wisconsin Court of Appeals aﬃrmed. The appellate court first found that Reynolds’s claim for ineﬀective appellate counsel was conclusory and, therefore, procedurally barred under State v. Escalona‐Naranjo, 517 N.W.2d 157 (Wis. 1994). In the alternative, the court found that the jury instructions were suﬃcient to support a conviction under Wisconsin law be‐ cause the carjacking statute establishes a single oﬀense that can be committed by using or threatening to use a weapon. See Wis. Stat. § 943.23(1g) (defining carjacking as intentionally taking “any vehicle without the consent of the owner” by “the use of, or the threat of the use of, force” or a dangerous weapon). The court also found that even if the jury instruc‐ tions were improper, Reynolds could not prove prejudice. The central issue at trial was identification, not the diﬀerence between using a gun and threatening to use a gun—after all, the carjacker shot two victims, and one died. The Wisconsin Supreme Court again denied review. C. State Habeas Corpus Proceedings Reynolds next filed a state habeas corpus petition in the Wisconsin Court of Appeals under State v. Knight, 484 N.W.2d 540 (Wis. 1992). In it, he alleged that Wisconsin violated his Sixth and Fourteenth Amendment right to counsel when the State Public Defender’s Oﬃce stopped paying his appellate attorney. Reynolds claimed that the State interfered with his representation, created a conflict of interest between him and 6 No. 16‐3430 his lawyer, and caused his lawyer to forgo investigating the equal protection challenge. The Court of Appeals once again denied relief. The court relied on two cases that applied the conflict‐of‐interest standard in Cuyler v. Sullivan, 446 U.S. 335 (1980)—Freeman v. Chandler, 645 F.3d 863, 869 (7th Cir. 2011), and State v. Love, 594 N.W.2d 806, 810–11 (Wis. 1999)—and found that Reynolds had not shown that the alleged conflict adversely aﬀected his lawyer’s representation of him. The court found as a matter of state law that Reynolds had for‐ feited the equal protection challenge by failing to raise it be‐ fore the Machner evidentiary hearing. That means the forfei‐ ture occurred before the State stopped paying his lawyer. Any eﬀort to bring the equal protection claim after that point would have been frivolous, the Wisconsin Court of Appeals found, so the conflict of financial interest could not have ad‐ versely aﬀected Williams’s representation of Reynolds. D. Federal Habeas Corpus Proceedings Reynolds then filed his federal habeas corpus petition un‐ der 28 U.S.C. § 2254. He argued that the State deprived him of counsel when it created a conflict of interest during his direct appeal, and that his appellate counsel was constitutionally in‐ eﬀective for failing to object to the jury instructions.2 The dis‐ trict court denied relief. The court found that there was suﬃ‐ cient evidence to convict Reynolds of either using force or threatening to use force, and thus any mistake in the jury in‐ structions could not have prejudiced him. The court also found that Reynolds had not shown that a conflict adversely 2 Reynolds raised several additional arguments about how his trial and appellate attorneys were ineffective, but he does not pursue those ar‐ guments in this appeal. No. 16‐3430 7 aﬀected his appellate representation because Reynolds ar‐ gued only that the conflict prevented his lawyer from pursu‐ ing a procedurally barred claim. The district court declined to grant a certificate of appealability, but we granted a certificate to review Reynolds’s claims surrounding his representation after the State Public Defender’s Oﬃce stopped paying his lawyer. II. Denial of Eﬀective Counsel The Sixth and Fourteenth Amendments guarantee crimi‐ nal defendants the eﬀective assistance of counsel during their first appeals as of right. Evitts v. Lucey, 469 U.S. 387, 393–94, 396–97 (1985); Douglas v. California, 372 U.S. 353, 356–57 (1963). The two‐prong analysis in Strickland v. Washington, 466 U.S. 668 (1984), governs most ineﬀective assistance claims. Strickland requires a petitioner to show: (1) that the attorney provided constitutionally deficient performance; and (2) that the deficient performance prejudiced the defense. Id. at 687. Prejudice under Strickland means “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been diﬀerent.” Id. at 694. Although Strickland states the general rule, the Supreme Court has recognized some exceptions for situations in which prejudice is either presumed or easier to show. Bell v. Cone, 535 U.S. 685, 695–96 (2002) (explaining three circumstances when prejudice is presumed). Reynolds argues that two of these exceptions apply here: a complete denial of counsel and an actual conflict of interest. A. Complete Denial of Counsel Reynolds first argues that the State caused Williams to abandon his role as an advocate when it stopped paying him, 8 No. 16‐3430 causing a complete denial of counsel under United States v. Cronic, 466 U.S. 648 (1984). Cronic recognized three “circum‐ stances that are so likely to prejudice the accused” that they amount to a complete denial of counsel and prejudice is pre‐ sumed. The first is when a defendant is denied the presence of counsel at a critical stage of the proceedings. The other two involve performance along those lines: counsel “entirely” fail‐ ing “to subject the prosecution’s case to meaningful adversar‐ ial testing,” and circumstances that are likely to prevent any lawyer, “even a fully competent one,” from providing eﬀec‐ tive assistance. Id. at 658–60; see also Bell, 535 U.S. at 695–97 (summarizing the three Cronic scenarios in which prejudice is presumed and emphasizing that counsel’s failure “must be complete” to trigger presumption). Reynolds refers to the lat‐ ter two situations as “constructive” denial of counsel and ar‐ gues that one occurred here. He also likens his case to Penson v. Ohio, 488 U.S. 75 (1988), in which the Court found a com‐ plete denial of counsel when appellate counsel withdrew after submitting only a bare assertion that the appeal was meritless. Id. at 88–89. The Wisconsin Court of Appeals did not reach this denial‐ of‐counsel question, which leads Reynolds to argue that de novo review applies. But the Wisconsin court failed to reach this issue for a reason: Reynolds did not raise it in state court. He procedurally defaulted this claim, and we cannot consider it on the merits. Before pursuing habeas relief in federal court, a state pris‐ oner must exhaust available state‐court remedies. 28 U.S.C. § 2254(b)(1). In addition, the federal claims “must be fairly presented to the state courts” so that the state has a “fair op‐ portunity to consider” the issues “and to correct that asserted No. 16‐3430 9 constitutional defect.” Picard v. Connor, 404 U.S. 270, 275–76 (1971). Fair presentation generally requires the petitioner to raise both the operative facts and controlling legal principles in the state courts. Ellsworth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001). If the petitioner fails to present a claim to the state courts, that claim is procedurally defaulted, and a fed‐ eral habeas court cannot review it absent “cause and preju‐ dice” or a miscarriage of justice (meaning conviction of an in‐ nocent person). E.g., Thomas v. Williams, 822 F.3d 378, 384, 386 (7th Cir. 2016), citing Coleman v. Thompson, 501 U.S. 722, 750 (1991). Even liberally construed, Reynolds’s pro se petition to the Wisconsin Court of Appeals did not fairly present this claim for denial of counsel. He argued only that Wisconsin denied him the “eﬀective assistance of counsel” by creating “an ac‐ tual conflict of interest” between him and his counsel. The ar‐ gument that he was denied counsel altogether is a diﬀerent legal theory governed by a diﬀerent legal rule—one that the Wisconsin courts did not have the chance to apply. By refor‐ mulating his claim in this appeal, Reynolds seeks to benefit from a less stringent standard for deciding prejudice: Cronic’s presumption of prejudice rather than Sullivan’s adverse‐eﬀect standard. This tactic does not work. See Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001) (reformulation “should not place the claim in a significantly diﬀerent legal posture by making the claim stronger or more substantial”). A petitioner is not bound to his state court presentation word‐for‐word, and he may provide further support for his claim. But he still must have presented the governing legal principles and “the sub‐ stance of a federal habeas corpus claim” to the state court. Pi‐ card, 404 U.S. at 278; see also Duncan v. Henry, 513 U.S. 364, 10 No. 16‐3430 366 (1995) (per curiam) (“mere similarity of claims is insuﬃ‐ cient to exhaust”). Even though Reynolds did not describe the issue in so many words as a complete denial of counsel, he might have fairly presented this claim if he had cited relevant cases and alleged facts that were “well within the mainstream of consti‐ tutional litigation” of that right. Ellsworth, 248 F.3d at 639. Reynolds did not do so. He did not rely on cases addressing complete denials of counsel. Instead, he cited Strickland, Sulli‐ van, and Walberg v. Israel, 766 F.2d 1071 (7th Cir. 1985), a case applying the Sullivan conflict‐of‐interest standard. Reynolds also cited Douglas v. California, 372 U.S. 353 (1963), and Evitts v. Lucey, 469 U.S. 387 (1985)—two cases that established the right to eﬀective assistance of counsel on direct appeal. But a single reference to these cases was insuﬃcient, especially in light of the facts Reynolds described. Nowhere did Reynolds assert that his lawyer abandoned his case. Although he said that his lawyer “had in essence been fired,” he also wrote that “Williams felt that it was his professional responsibility to complete the current briefing process” and that he petitioned the Wisconsin Supreme Court for further review as well. When describing his lawyer’s deficient performance, Rey‐ nolds argued only that his lawyer declined to investigate one argument: the equal protection claim. Asserting that his law‐ yer failed to make that single argument did not fairly notify the state court that Reynolds claimed a complete denial of counsel. See Penson, 488 U.S. at 88–89 (distinguishing between failing “to press a particular argument” and being “entirely without the assistance of counsel on appeal”). The fair presentment rule is not so rigid that a pro se peti‐ tioner needed to cite Cronic or any other denial‐of‐counsel No. 16‐3430 11 case by name. For example, a petitioner could exhaust a de‐ nial of counsel claim by describing facts that amount to a com‐ plete denial of counsel and citing Strickland, which summa‐ rized: “Actual or constructive denial of the assistance of coun‐ sel altogether is legally presumed to result in prejudice.” 466 U.S. at 692. Still, the petitioner must describe facts and legal principles that fairly notify the court of what it should decide. Because Reynolds (1) did not rely on cases addressing the complete denial of counsel, (2) framed the violation as a con‐ flict of interest under Sullivan, and (3) did not allege that he lacked an attorney, this abandonment claim was not fairly presented to the state courts. Moreover, even if the denial‐of‐ counsel claim were not procedurally barred or if we were in‐ clined to consider it as suﬃciently related to the claims Rey‐ nolds did raise, the record makes clear that attorney Williams simply did not abandon Reynolds. Even after being told by the State Public Defender that he would not be paid any more for working on Reynolds’s case, Williams continued to repre‐ sent Reynolds for free in the state court of appeals, completing the briefing there, and then filing a petition for review with the Wisconsin Supreme Court. That fact does not immunize his work from scrutiny, but this was not an abandonment that could lead to the presumption of prejudice. B. Conflict of Interest In the alternative, Reynolds argues that he was denied the eﬀective assistance of counsel when the State Public De‐ fender’s Oﬃce created a conflict of interest by ceasing to pay his lawyer for work on Reynolds’s case while also informing him that he would no longer receive new case assignments. Reynolds properly exhausted this claim, and the Wisconsin Court of Appeals decided it on the merits. We cannot issue a 12 No. 16‐3430 writ of habeas corpus on this basis unless the decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Su‐ preme Court of the United States.” 28 U.S.C. § 2254(d)(1). The first question under § 2254(d)(1) is the scope of clearly established federal law on a defendant’s Sixth Amendment right to conflict‐free counsel. The Supreme Court has held that concurrent multiple representation—for example, repre‐ senting co‐defendants in a single trial—violates the Sixth Amendment if it “gives rise to a conflict of interest.” Sullivan, 446 U.S. at 348, citing Holloway v. Arkansas, 435 U.S. 475, 482 (1978). Reynolds argues that his lawyer’s financial interest kept the lawyer from zealously representing him. We reject this ar‐ gument for two independent reasons. First, the Supreme Court has not yet extended its multiple‐representation deci‐ sions to financial conflicts of interest between attorney and cli‐ ent, let alone provided clear guidance as to whether or under what circumstances a financial conflict of interest between at‐ torney and client violates a defendant’s right to counsel. That silence presents a nearly insurmountable obstacle to this claim on a federal petition for a writ of habeas corpus. Second, the Supreme Court has not given lower courts much guidance as to what counts as an “adverse eﬀect” under Sullivan, as dis‐ tinct from a reasonable probability of a diﬀerent outcome un‐ der Strickland. Without clearer guidance from the Supreme Court, the state court decision here was not contrary to or an unreasonable application of clearly established Supreme Court law. In cases where defense counsel represents multiple clients with conflicting interests, the Supreme Court holds that the No. 16‐3430 13 standard for reversal depends on whether anyone objected to the conflict during the representation: “absent objection, a de‐ fendant must demonstrate that ‘a conflict of interest actually aﬀected the adequacy of his representation.’” Mickens v. Tay‐ lor, 535 U.S. 162, 168 (2002), quoting Sullivan, 446 U.S. at 349. If no party raises a timely objection to a conflict of interest arising from multiple representation, the accused must show that “an actual conflict of interest adversely aﬀected his law‐ yer’s performance.” Sullivan, 446 U.S. at 348. If the defendant shows a conflict and a lapse in representation, prejudice is presumed. Id. at 349–50. Reynolds argues that the logic of Sul‐ livan should apply to the financial pressure on his appellate lawyer, which caused the lawyer to decline to investigate the equal protection challenge and adversely aﬀected his perfor‐ mance. The Wisconsin Court of Appeals accepted Sullivan as stat‐ ing the controlling federal rule. That court found that even if the State interfered with the lawyer’s representation, that po‐ tential interference came after the lawyer had forfeited the equal protection claim. After the Machner evidentiary hearing, the scope of the appeal was limited by the lawyer’s earlier fil‐ ings, and the equal protection claim was no longer available.3 The Wisconsin court then concluded that the financial conflict 3 Reynolds argues that Wisconsin law did not actually limit the scope of the appeal at this point. The state courts treated the failure to raise the issue properly as a waiver. In habeas corpus litigation, federal courts or‐ dinarily defer to state courts’ applications of state procedural rules and doctrine to proceedings in state courts, at least as long as the relevant rules or doctrines are firmly established and consistently followed. E.g., Mar‐ tinez v. Ryan, 566 U.S. 1, 9–10 (2012). We see no reason to question the state courts’ routine conclusion that Reynolds failed to raise the equal protec‐ tion claim in a timely way. 14 No. 16‐3430 had no adverse eﬀect on Williams’s representation. See Sulli‐ van, 446 U.S. at 349–50. The state court reasoned that even if attorney Williams had investigated the equal protection the‐ ory, he should have concluded that the theory could not properly be presented to the court of appeals. It had been for‐ feited because it had not been raised in Reynolds’s first ap‐ peal. Sep. App. 71–72. The Wisconsin court’s conclusion may or may not be cor‐ rect in the end, but it did not unreasonably apply Sullivan. The Supreme Court itself simply has not extended Sullivan, or any constitutional analysis of conflicts of interest, to financial con‐ flicts between attorney and client. Sullivan dealt with one team of lawyers who represented three men who were accused of the same murders but were tried in three separate trials. The Court vacated habeas relief for Sullivan, the one client who had been convicted. The Court held that, in the absence of a timely objection, the accused was required to show that the potential conflict of interest (a) had ripened into an actual con‐ flict of interest that (b) adversely aﬀected the adequacy of his lawyers’ representation of him. 446 U.S. at 348. The Supreme Court has not yet held that Sullivan extends even from multiple, conflicted concurrent representations to multiple, conflicted successive representations, Mickens, 535 U.S. at 174–76, let alone to financial conflicts of interest. Mick‐ ens aﬃrmed the denial of habeas relief where the lawyer rep‐ resenting the accused in a murder case had been representing the murder victim on unrelated, undisclosed (and confiden‐ tial) juvenile charges at the time he was murdered. The Mick‐ ens opinion noted that the case had been argued on the as‐ sumption that the Sullivan would extend to conflicted succes‐ No. 16‐3430 15 sive representations, but that the Court was not actually en‐ dorsing that assumption. Id. at 175. Mickens expressly left that successive representation question open. Id. at 176. Under 28 U.S.C. § 2254(d)(1), the scope of the Sullivan rule is a critical issue here. Mickens acknowledged that the federal courts of appeals had applied Sullivan to “all kinds of alleged attorney ethical conflicts,” including financial conflicts, as well as attorney’s interests in getting a job with the prosecutor or romance with the prosecutor. 535 U.S. at 174. But Mickens pointedly did not endorse those extensions of Sullivan. Id. Cautioning the lower courts more broadly, the Court wrote that “Not all attorney conflicts present comparable diﬃcul‐ ties.” 535 U.S. at 175.4 This circuit has said that the “precise scope of claims to which the Cuyler [v. Sullivan] standard applies has not been definitively stated by the Supreme Court.” Spreitzer v. Peters, 114 F.3d 1435, 1451 n.7 (7th Cir. 1997) (denying habeas relief). Since before Mickens, we have at least assumed that Sullivan extends to financial conflicts of interests. United States v. Mar‐ rera, 768 F.2d 201, 206–07 (7th Cir. 1985) (attorney and defend‐ ant agreed to share movie rights to story of crime). Mickens makes it very diﬃcult, though, to take that step in a habeas corpus challenge to a state conviction governed by 4 The cited financial conflict of interest case was United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir. 1980) (remanding for hearing on whether at‐ torney F. Lee Bailey’s book contract regarding the defense of Patty Hearst adversely affected his representation of her). But Mickens also noted the Fifth Circuit decision in Beets v. Scott, 65 F.3d 1258, 1269–72 (5th Cir. 1995) (en banc), which declined to extend Sullivan to a financial conflict of inter‐ est (also involving media contracts) and instead applied the Strickland v. Washington standard to the claim of ineffective assistance of counsel. 16 No. 16‐3430 § 2254(d)(1). To prevail here, Reynolds needs to show that it would be unreasonable for the state court to fail to extend Sul‐ livan to financial conflicts between attorney and client and that the state court applied Sullivan unreasonably. That extension would be a significant new development, with eﬀects far more sweeping than its extension from concurrent to succes‐ sive representations. Extension to financial conflicts of inter‐ ests would pose a range of challenging problems. It would not be unreasonable within the meaning of § 2254(d)(1) for lower courts to refrain from making that extension themselves. A wide range of fee arrangements can create at least some tension between attorneys and clients. For example, it is not unusual in criminal defense for a lawyer to insist on a sizable up‐front retainer against which the lawyer can bill, often with little hope of replenishing the retainer if the case takes more work than the lawyer initially expected. Nor is it unusual for clients to fall behind in paying their lawyers. In those and many other circumstances, lawyers may face more or less se‐ rious financial conflicts of interest as the client and case may call for additional work that will be essentially unpaid. View‐ ing the lawyer’s incentives through a narrow and short‐term economic lens, these situations give a lawyer a financial in‐ centive to minimize non‐essential work, much like attorney Williams’s incentives here. Nor is it unusual for underpaid and overworked public defenders to have to allocate a finite number of hours in a month or year among diﬀerent clients. If such routine incentives, combined with an admission by a lawyer that his or her judgments about which additional work to carry out were aﬀected at the margin by those incen‐ tives, were enough to find an actual conflict and “adverse ef‐ fect” that demonstrated ineﬀective assistance of counsel, No. 16‐3430 17 many convictions would become vulnerable to collateral at‐ tack. Yet we know that lawyers facing such incentives and choices are also motivated by their sense of professional duty and pride, and an interest in their professional reputations, to continue to do good work for a client even if no more money will be paid in the particular case. Those realities underlie Rule of Professional Conduct 1.16. A client’s failure to pay as agreed can provide good cause for a lawyer to terminate a representation. But Rule 1.16 provides that a lawyer in that situation must continue the representation if ordered to do so by a court. When that happens, there is a financial conflict of interest not unlike what has happened here. We have not been directed to any cases treating such conflicts as showing a de‐ nial of eﬀective counsel, let alone to a controlling Supreme Court case holding as much. These considerations help to show that how to apply conflict‐of‐interest doctrine, which so far has developed in the Supreme Court to address loyalties to multiple clients, to financial conflicts raises challenging questions that the Supreme Court simply has not addressed. Under § 2254(d)(1), we may not use a federal habeas proceeding to extend Supreme Court precedents into new fields where there is room for fair‐minded disagreement, as there is here. See generally Harrington v. Richter, 562 U.S. 86, 101 (2011). Still, Reynolds argues that a conflict of interest is a conflict of interest. From his point of view, the fact that the attorney’s loyalties or interests ran in his personal favor rather than in favor of another client should not matter. After all, attorney Williams acknowledged that it was finances that led him to refuse Reynolds’s request that he look into the equal protec‐ tion challenge to the carjacking statute, and perhaps also to a 18 No. 16‐3430 challenge to the jury instructions on carjacking. Reynolds re‐ lies on the language in Sullivan teaching, in the context of mul‐ tiple, concurrent representations, that an actual conflict of in‐ terest that adversely aﬀected the lawyer’s performance vio‐ lates the Sixth Amendment right to counsel. 446 U.S. at 348– 49. Assuming that the Sullivan standard applies to this finan‐ cial conflict of interest, which would be consistent with both the state appellate court’s approach here and our opinion in Marrera, Reynolds has shown some eﬀect on Williams’s repre‐ sentation: a failure to investigate at least the additional equal protection claim. An adverse eﬀect seems to be a lower stand‐ ard than the Strickland reasonable probability of a diﬀerent re‐ sult. But what does it take to show an adverse eﬀect? The Wis‐ consin court concluded there was no adverse eﬀect from the conflict of interest because any new claims or theories that Reynolds asked Williams to pursue, including the equal pro‐ tection claim, were already forfeited by the time the conflict arose. Yet eﬀective lawyers can sometimes overcome proce‐ dural hurdles in criminal appeals and habeas cases. And by asking whether Williams could have raised the equal protec‐ tion claim after Reynolds asked him to, the Sullivan “adverse eﬀect” standard begins to slide toward the Strickland standard of prejudice, gauged in terms of the outcome of the case. The Sullivan analysis seems to focus more on the conflict’s eﬀect on the attorney’s actions than on the outcome of the case. Yet Sullivan still requires not just an eﬀect but an adverse eﬀect on attorney performance. 446 U.S. at 348. The Supreme Court has not clarified what counts as an adverse eﬀect. See Beets v. Scott, 65 F.3d 1258, 1265 (5th Cir. 1995) (en banc) (“The No. 16‐3430 19 precise nature of [Cuyler v. Sullivan’s] ‘actual conflict’ and ‘ad‐ verse eﬀect’ elements is rather vague … .”). Nor has the Court clarified where this standard lies between any eﬀect on attor‐ ney performance and an eﬀect that rises to Strickland preju‐ dice. We have written broadly that a defendant shows an ad‐ verse eﬀect “if, but for the attorney’s actual conflict of interest, there is ‘a [reasonable] likelihood that counsel’s performance somehow would have been diﬀerent.’” Stoia v. United States, 22 F.3d 766, 771 (7th Cir. 1994), quoting Frazer v. United States, 18 F.3d 778, 787 (9th Cir. 1994) (Beezer, J., concurring). We used that language in a most unusual case, and one that did not involve the forfeiture problem that the state court found decisive here. The lawyer in Stoia who had directed the de‐ fense strategy had entered his own plea agreement with the federal government. The lawyer was probably violating his plea agreement by directing the defense strategy in Stoia’s case, and at the same time the lawyer was under investigation for soliciting perjury and obstructing justice in his represen‐ tation of one of Stoia’s co‐defendants. 22 F.3d at 771–72. In Stoia, the defendant’s other lawyers identified a number of specific ways in which the strategist made decisions that hurt Stoia’s defense. Id. at 773. That situation in Stoia is not readily comparable to a cli‐ ent’s (or state public defender agency’s) more quotidian re‐ fusal or inability to pay. And in any event, the broad Stoia lan‐ guage is not binding on state courts. Under § 2254(d)(1), we cannot grant habeas relief based on only our own precedent when a state court has ruled on the merits of a claim. Even if our language in Stoia were binding precedent in this case, state courts interpreting it would still need to decide 20 No. 16‐3430 what it means for counsel’s performance to be “diﬀerent,” let alone “adverse.” “Adverse” can be read fairly to require a showing of at least some sort of negative consequence for the client. It would not be unreasonable for a state court consid‐ ering this question to peek at the merits of the claim that the attorney did not investigate and raise. Why would failure to raise a sure loser of an issue necessarily amount to an “ad‐ verse eﬀect” requiring a new trial? The Wisconsin carjacking statute does not rely on any dis‐ tinctions that implicate suspect classes or fundamental rights. An equal protection challenge would have to show the legis‐ lature drew a line that bore no rational relationship to a legit‐ imate governmental purpose, e.g., Armour v. City of Indianap‐ olis, 566 U.S. 673, 681 (2012), a standard that is very diﬃcult to satisfy. This is not the sort of argument that moves courts to overlook procedural failures to free wrongly convicted de‐ fendants. The state court did not unreasonably apply Su‐ preme Court precedent in holding that a missed opportunity to raise such an argument in an already untimely fashion was not an “adverse eﬀect” within the meaning of Sullivan. Rey‐ nolds’s claim cannot meet the stringent standard of § 2254(d)(1).5 5 Our dissenting colleague proposes as a remedy that Reynolds’s con‐ victions be set aside. That remedy would not fit the argued violation of his right to counsel on appeal. If the financial conflict produced an “adverse effect” within the meaning of Sullivan, that effect was counsel’s refusal to investigate an already‐forfeited equal protection challenge to Wisconsin’s carjacking statute. That potential challenge still has not been shown to have any arguable merit. If there were a constitutional violation here in the appellate representation, the remedy would seem to be a fresh appeal, not a new trial based on the assumption that the equal protection theory not only was not forfeited but would have produced a victory on appeal. No. 16‐3430 21 III. Ineﬀective Assistance of Appellate Counsel Finally, Reynolds claims that he received ineﬀective assis‐ tance of appellate and trial counsel because both attorneys failed to challenge the jury instructions on his carjacking counts. This issue is outside the scope of the certificate of ap‐ pealability. We certified Reynolds’s claim that the State vio‐ lated his right to the eﬀective assistance of counsel “when the state public defender’s oﬃce allegedly informed Reynolds’s appointed counsel that he would not be paid for future work on Reynolds’s case and when counsel, citing this reason, de‐ clined to conduct additional investigation that Reynolds re‐ quested.” We did not certify any questions related to the jury instructions, and Reynolds did not request permission to ar‐ gue any non‐certified claims. See Welch v. Hepp, 793 F.3d 734, 737 (7th Cir. 2015). Also, since we know (a) that the state stat‐ ute authorizes conviction for either use or threatened use of a weapon, see Wis. Stat. § 943.23(1g), and (b) that a deadly weapon was certainly used in this case, we see no reason to consider expanding the scope of our certificate of appealabil‐ ity. We therefore decline to review this issue. Welch, 793 F.3d at 737–38. See, e.g., Shaw v. Wilson, 721 F.3d 908, 919 (7th Cir. 2013) (ordering new appeal where appellate counsel had been ineffective); see generally Roe v. Flores‐Ortega, 528 U.S. 470, 484 (2000) (where appellate counsel abandoned defendant by failing to file notice of appeal, and defendant otherwise would have taken appeal, defendant is entitled to new appeal); Penson v. Ohio, 488 U.S. 75, 87 (1988) (where state appellate court found several ar‐ guable issues in record, remedy for denial of counsel on appeal was new appeal); Dodd v. Knight, 533 F. Supp. 2d 844, 854 (N.D. Ind. 2008) (ordering new appeal where appellate counsel was ineffective). 22 No. 16‐3430 The district court’s judgment denying a writ of habeas corpus is AFFIRMED. No. 16-3430 23 WOOD, Chief Judge, dissenting. Few would doubt that ﬁ- nancial conﬂicts of interest can destroy the integrity of a rela- tionship. That is why, in Tumey v. Ohio, 273 U.S. 510 (1927), the Supreme Court found that due process was violated when a local judge’s salary depended on the ﬁnes that resulted from convictions in cases before him. See also Connally v. Georgia, 429 U.S. 245 (1977) (due process violated by local law provid- ing that judge was compensated only when he issued search warrants, not when he denied them). It is why judges must give extra scrutiny to the performance of counsel in class ac- tions, lest the lawyer sell out the class and walk away with an enormous fee. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 803–04 (9th ed. 2014); Jack B. Weinstein, Ethical Dilem- mas in Mass Tort Litigation, 88 NW. U. L. REV. 469, 502–03 (1994). And it is why the Rules of Professional Conduct for Attorneys in Wisconsin, which are based on the American Bar Association’s Model Rules with some additions not material here, state that “a lawyer shall not represent a client if the rep- resentation involves a concurrent conﬂict of interest.” SCR 20:1.7(a). One way in which a forbidden conﬂict can arise is if “there is a signiﬁcant risk that the representation of one or more clients will be materially limited by … a personal in- terest of the lawyer.” Id. at 20:1.7(a)(2). The lawyer is relieved of this responsibility only if, among other things, the “aﬀected client gives informed consent, conﬁrmed in a writing signed by the client.” Id. at 20:1.7(b)(4). In addition, lawyers may not limit the scope of their representation of a client unless “the client gives informed consent,” again in writing. Id. at 20:1.2(c). The obvious concern is that, faced with a conﬂict between one’s own ﬁnancial interest and the interests of another per- son, the former will win out. If the lawyer puts his or her own 24 No. 16-3430 interest ﬁrst, the client is the loser. This is precisely what Cor- nell Reynolds says happened to him in the course of the crim- inal prosecution the State of Wisconsin brought against him in the early 2000s. The key events in the case can be summarized quickly. In May 2001, Reynolds was charged with carjacking resulting in death. The primary issue at the trial was identiﬁcation. A jury convicted him, and he was sentenced in early 2002. As Wis- consin law permits, Reynolds then ﬁled a direct appeal and a post-conviction motion simultaneously. At that point, the Wisconsin State Public Defender’s Oﬃce appointed attorney Terry Williams to serve as Reynolds’s post-conviction and ap- pellate counsel. Williams ﬁled a motion for a new trial on the ground that Reynolds’s trial counsel had been ineﬀective in failing to raise an alibi defense. The state trial court denied the post-conviction motion without holding an evidentiary hear- ing. Still with Williams’s help, Reynolds appealed to the Wis- consin Court of Appeals, which reversed and remanded the ruling on the post-conviction motion so that the trial court could hold an evidentiary hearing on the ineﬀectiveness point. The trial court obliged, but it again concluded that Reynolds was not entitled to a new trial. So far, so good. The problem now before us arose when Williams ﬁled a new appeal on Reynolds’s behalf. While that appeal was pending, someone on the staﬀ of the Wisconsin State Public Defender’s Oﬃce told Williams that he had spent too much time on the case. The consequences were serious for Williams: (1) he would not be paid for some of the work he already had done; (2) he would not be paid for any more work on Reynolds’s case; and (3) he would no longer receive case No. 16-3430 25 assignments from the Public Defender. At that point, Williams halted all further work on the case. Reynolds asked him to pursue an equal protection challenge to the car-jacking stat- ute, but Williams refused to do so. Importantly, his stated rea- son had nothing to do with the potential merit of such an ar- gument. Williams frankly said that he was shutting down his work because the state was not paying him. He told Reynolds that he would do additional work if Reynolds paid him for it, but Reynolds was unable to do so. Williams simply ﬁled the brief he already had prepared, and after the court of appeals aﬃrmed the trial court’s order, he later ﬁled a petition for re- view on Reynolds’s behalf in the Wisconsin Supreme Court. After some additional state proceedings, Reynolds ﬁled a petition for habeas corpus under 28 U.S.C. § 2254 in the fed- eral court. He presented several arguments: ﬁrst, that he was constructively denied counsel after the Public Defender’s Of- ﬁce cut oﬀ Williams’s pay, in violation of United States v. Cronic, 466 U.S. 648 (1984); second, that Williams had an ac- tual ﬁnancial conﬂict of interest, which resulted in the denial of eﬀective assistance of counsel under the standards of Cuyler v. Sullivan, 446 U.S. 335 (1980); and third, that his appellate counsel was ineﬀective pursuant to Strickland v. Washington, 466 U.S. 668 (1984), for failing to object to trial counsel’s own failure to object to certain jury instructions. While I am per- suaded that the state courts’ decisions fell within the generous boundaries provided by section 2254 with respect to the ﬁrst and third of these arguments, I conclude that the state courts, as well as the majority here, have failed to apply Cuyler properly and that Reynolds is entitled to issuance of the writ on this ground. 26 No. 16-3430 In Cuyler, the Supreme Court addressed the question “whether a state prisoner may obtain a federal writ of habeas corpus by showing that his retained defense counsel repre- sented potentially conﬂicting interests.” 446 U.S. at 337. In the case before the Court, two lawyers had represented three co- defendants in a murder prosecution. The Court accepted that this amounted to multiple representation. Id. at 342. But it clariﬁed that “multiple representation does not violate the Sixth Amendment unless it gives rise to a conﬂict of interest.” Id. at 348. The burden on a defendant who seeks to establish a viola- tion of the Sixth Amendment in such cases, the Court held, is to “demonstrate that an actual conﬂict of interest adversely af- fected his lawyer’s performance.” Id. (emphasis added). Such a showing might rest on a failure to cross-examine a witness, or a failure to object to the introduction of certain evidence. Id. at 348–49. Critically, it is the lawyer’s performance that is the focus of the inquiry, not the ultimate outcome of the trial. The Court expressly declared that once unconstitutional multiple representation has been demonstrated—that is, once the de- fendant has shown an actual conﬂict and an adverse eﬀect on the lawyer’s performance—there “is never harmless error.” Id. at 349 (emphasis added). Underscoring that fact, the Court continued as follows: Thus, a defendant who shows that a conﬂict of interest actually aﬀected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. Id. at 349–50. Because the court of appeals had used a diﬀerent standard, the Court remanded the case for further proceed- ings. No. 16-3430 27 As my colleagues note, some conﬂicts and ethical viola- tions do not present diﬃculties akin to multiple representa- tion. Ante at 17. But we must not lose sight of the fact that Cuyler created a standard to be applied not just when one at- torney represents clients with competing interests, but “in sit- uations where Strickland itself is evidently inadequate to as- sure vindication of the defendant’s Sixth Amendment right to counsel.” Mickens v. Taylor, 535 U.S. 162, 176 (2002). The exist- ence of an actual conﬂict of interest between attorney and cli- ent is one of those instances. Cf. United States v. Gonzalez-Lopez, 548 U.S. 140, 146 (2006) (ﬁnding structural error in the depri- vation of the right to counsel of choice, rejecting harmless er- ror, and holding that “no additional showing of prejudice is required to make the violation ‘complete’”). Reynolds has established the two elements required by Cuyler: he has shown that there was an actual conﬂict of inter- est between him and his lawyer, and he has shown that the conﬂict had an adverse eﬀect on his lawyer’s performance, in- sofar as the lawyer limited the scope of his representation to the matters he already had researched and ﬂatly refused to look into anything else. The Supreme Court has not distin- guished between an actual conﬂict of interest arising out of multiple representation, as was present in Cuyler, and a more direct conﬂict of interest between attorney and client based on ﬁnancial considerations. (Indeed, the latter situation involves a form of multiple representation: Williams was trying to rep- resent both himself and Reynolds.) Nor can there be any doubt that the conﬂict between Reynolds and Williams af- fected Williams’s performance. Without obtaining Reynolds’s permission, as contemplated by professional ethics norms and over Reynolds’s direct objection, Williams froze his work for Reynolds and did nothing but ﬁle what he already had 28 No. 16-3430 completed, following up on the same limited points with the state supreme court. At the state post-conviction stage, Reynolds presented this conﬂict-of-interest claim to the state courts. The Wisconsin court of appeals agreed that “a conﬂict of interest may also arise when an attorney and his client have divergent inter- ests.” Sep. App. at 70 (quotation marks omitted). The court then correctly noted that the claimant had to show an actual conﬂict and an adverse eﬀect on the lawyer’s performance. Id. It then discussed Williams’s performance for a bit, but it piv- oted over to the ultimate result in the case, when it said that had Williams not had the conﬂict, he would have determined that the issue Reynolds wanted to raise was not properly be- fore the court in any event. That is the language of harmless error, not a reference to Williams’s own performance. It says, in essence, that the conﬂict aﬀected Williams’s performance insofar as he failed to raise the issues that Reynolds wanted to see explored, but that Williams’s failure could not have af- fected the outcome. That reasoning is contrary to the holding of Cuyler, which cannot have been more clear in rejecting a harmless-error ap- proach. At the very least, it is an unreasonable application of Cuyler, since it shifts from a focus on Williams’s performance to one on the ultimate impact of Williams’s decisions in a manner that Cuyler forbids. See also Mickens, 535 U.S. at 170 (2002) (stressing that the conﬂict must aﬀect counsel’s perfor- mance, rather than be merely a theoretical division of loyal- ties). Tempting as it may be to engage in harmless-error anal- ysis in every case, the Supreme Court has decided that there are some situations in which it is oﬀ the table. No. 16-3430 29 The only remaining question is what the appropriate rem- edy is in this case. A common remedy for a failure of counsel at the appellate stage would be, as my colleagues have noted, a fresh appeal with unconﬂicted counsel. See Shaw v. Wilson, 721 F.3d 908, 919 (7th Cir. 2013). But nothing in the statute re- stricts the district court’s options to only that remedy. To the contrary, the law provides that “[t]he court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.” 28 U.S.C. § 2243, ¶ 8. The Supreme Court has recognized that “a court has broad discretion in condi- tioning a judgment granting habeas relief.” Hilton v. Braun- skill, 481 U.S. 770, 775 (1987). The question here is thus what remedy would suﬃce to redress the serious miscarriage of justice suﬀered by Reynolds. In my view, this is a situation that demands more than a fresh appeal. The state courts have already decided—in the absence of a proper adversary presentation on Reynolds’s be- half—that any additional points that may have been raised on appeal were forfeited or meritless. I have no reason to believe that they would not simply reiterate that point, if we were to limit the remedy to a new appeal. (Principles of law-of-the- case might even require them to do so.) Because a new appeal would not redress the constitutional violation in Reynolds’s case, I would issue a conditional writ granting him a new trial (if the state chooses to take that step). This is well within the scope of the statute, as our sister circuits have recognized. See, e.g., Ramchair v. Conway, 601 F.3d 66, 78 (2d Cir. 2010) (peti- tioner deprived of eﬀective appellate counsel entitled to new trial as remedy); Turner v. Bagley, 401 F.3d 718, 727 (6th Cir. 2005) (granting unconditional writ requiring new trial for deprivation of access to appellate process because of undue delay); Eagle v. Linahan, 279 F.3d 926, 943–44 (11th Cir. 2001) 30 No. 16-3430 (appellate counsel’s failure to raise Batson claim remedied by grant of new trial). In this respect, I agree with the observations of the Tenth Circuit in Clayton v. Jones, 700 F.3d 435 (10th Cir. 2012), a case in which the defendant was denied his right to appeal because of ineﬀective assistance of counsel. As that opinion put it, “[c]ertainly a district court is not conﬁned to only granting an appeal out of time when a petitioner has been denied his right to a direct appeal. It is not unprecedented for a district court to fashion a remedy for ineﬀective assistance of counsel on appeal that goes beyond an appeal out of time.” Id. at 443–44. The only problem in Clayton was that the district court had not suﬃciently explained why a new appeal would not suf- ﬁce. I have indicated why I believe this case is a proper candi- date for a broader remedy. Reynolds has tried hard to navi- gate the habeas corpus process—no mean feat for even an ex- perienced lawyer—and in my view he has shown that he should receive a new trial. I therefore respectfully dissent.

Cornell Reynolds v. Randall Hepp

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