In the
United States Court of Appeals
For the Seventh Circuit
No. 18-2507
LONDON TRIPLETT,
Plaintiff-Appellant,
v.
JENNIFER MCDERMOTT, WARDEN,
Respondent-Appellee.
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:17-cv-00660-WCG — William C. Griesbach, Judge.
ARGUED NOVEMBER 4, 2020 — DECIDED APRIL 12, 2021
Before EASTERBROOK, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. London Triplett seeks relief pursuant
to 28 U.S.C. § 2254, for the alleged ineffectiveness of his
counsel in a state criminal proceeding. Triplett contends that he
would not have pleaded guilty to certain charges had he
understood that other, dismissed charges could be considered
by the sentencing judge when they were “read in” at sentenc-
2 No. 18-2507
ing. Because the decision of the Wisconsin Court of Appeals
rejecting Triplett’s ineffectiveness claim rests on an adequate
and independent state ground—Triplett’s failure to allege
objective facts in support of his claim of prejudice from his
attorney’s erroneous advice—we conclude that habeas relief is
foreclosed to him. We therefore affirm the district court’s
judgment, but on a different ground.
I.
Triplett pleaded guilty in Wisconsin state court to three
charges of human trafficking, pimping and pandering, and
possession of a firearm by a felon. These three charges were
among a series of 20 charges (including charges of attempted
first-degree homicide and kidnapping) in an amended infor-
mation that arose out of Triplett’s trafficking of three women
as prostitutes. The case against Triplett was resolved three
days prior to the scheduled trial by way of a plea agreement.
Triplett agreed to plead guilty to the three charges we have just
mentioned, the State agreed to have the remaining 17 charges
dismissed and “read-in” at sentencing (which essentially
allowed the sentencing judge to consider them as relevant
conduct), Triplett’s total sentencing exposure was reduced
from 354 years in prison to a maximum of 47.5 years, and the
State agreed to recommend that the sentences on each of the
three counts of conviction should run concurrently, but not to
recommend a sentence of any particular length. Triplett was
represented by attorney Patrick Earle.
At the change of plea hearing, the judge confirmed with
counsel that, pursuant to the parties’ agreement, the dismissed
charges would be read-in at sentencing. Earle acknowledged
No. 18-2507 3
this but added that Triplett did not admit the truth of the
charges. The judge asked Triplett whether he had reviewed
with his attorney and signed a written plea questionnaire and
waiver of rights in connection with the plea agreement and
Triplett said that he had. In signing that document, Triplett
acknowledged that: “I understand that if any charges are read-
in as part of a plea agreement, they have the following effects:
Sentencing — although the judge may consider read-in charges
when imposing sentence, the maximum penalty will not be
increased. …” Triplett’s signature also constituted confirma-
tion that he had read and understood the form and had
reviewed it with his attorney. Earle likewise signed the form,
confirming that he had reviewed it with his client and believed
that Triplett understood its contents. At the conclusion of the
change of plea hearing, the court accepted Triplett’s plea and
adjudged him guilty.
At sentencing, the State asked the court to sentence Triplett
to an unspecified term in prison and that it order his sentences
on the three counts of conviction to run concurrently. The State
referred to the read-in charges in its presentation, and in
particular to the attempted homicide charge. On Triplett’s
behalf, Earle emphasized again that his client was not admit-
ting the dismissed read-in charges, adding that “there are
different types of read-ins.” Earle admitted that Triplett had
trafficked “these women,” had used heroin with them, and had
lived in a household with them that was sustained by the
proceeds of their prostitution. Earle recommended a sentence
of seven years. Triplett, for his part, admitted to having a
“hand” in the relevant events but indicated that some of the
4 No. 18-2507
things said about him in the criminal complaint that initiated
the prosecution were not true.
The judge ordered Triplett to serve concurrent terms of
eight years on the felon-in-possession count, 11 years on the
pimping or pandering count, and 20 years on the human
trafficking count. The latter sentence is the controlling one, and
it requires Triplett to serve 11 years in prison followed by nine
years of extended supervision (for a total sentence of 20 years).
In a post-conviction proceeding, Triplett filed a motion
seeking to withdraw his guilty plea. A public defender,
Marcella De Peters, was appointed to represent him. De Peters
submitted an affidavit in support of Triplett’s motion indicat-
ing that (a) Triplett represented to her that Earle had assured
him the sentencing judge could not consider the read-in
charges at sentencing because Triplett was not admitting to the
conduct underlying those charges and there were different
types of read-ins; (b) based on that assurance, Triplett did not
believe that his sentence could be affected by the dismissed
read-in charges; (c) had he known that the court could consider
the read-in charges, he would have gone to trial rather than
pleading guilty; (d) De Peters had spoken with Earle, who
confirmed that he told Triplett that the court could not con-
sider the read-in charges because there were different types of
read-in charges and Triplett was not admitting the truth of
those charges; and (e) based on her discussion with Earle, De
Peters believed that he had an incorrect understanding of
Wisconsin law on the matter of read-in charges.
Without conducting an evidentiary hearing, the trial court
denied Triplett’s motion to withdraw his guilty plea. The court
No. 18-2507 5
determined that even if Earle had given Triplett incorrect
advice as to the read-charges, Triplett was not prejudiced by
the advice. The plea questionnaire and waiver of rights warned
Triplett that the court could, in fact, consider the read-in
charges, and Triplett had acknowledged that warning by
signing the form. The court also represented that it had not
considered the read-in charges at sentencing.
The Wisconsin Court of Appeals affirmed Triplett’s
conviction and sentence along with the denial of his motion to
withdraw his guilty plea. The court found that an evidentiary
hearing was not warranted on the merits of his withdrawal
motion, because even assuming that Triplett had alleged
sufficient facts to show that Earle’s advice to him was mis-
taken, Triplett had not adequately alleged that he was preju-
diced by his counsel’s ineffectiveness: Although Triplett
averred generally that he would not have pleaded guilty had
he known that the plea permitted the court to consider the
read-in charges at sentencing, he did not allege any specific,
objective facts which supported that assertion, as Wisconsin
law required him to do. The Wisconsin Supreme Court denied
his petition for review.
Triplett then filed his petition for a writ of habeas corpus in
the district court. As relevant here, Triplett pursued multiple
claims of attorney ineffectiveness. Because all of these claims
were based on attorney Earle’s mistaken advice as to the read-
in charges, we will treat them as a single ineffectiveness claim
for ease of discussion.
Judge Griesbach denied the petition on the merits. He
rejected the State’s threshold argument that Triplett had
6 No. 18-2507
procedurally defaulted his ineffectiveness claim. Although the
Wisconsin court of appeals had indicated that Triplett failed to
support his claim with objective facts showing that he was
prejudiced by Earle’s alleged ineffectiveness, Judge Griesbach
construed that holding as one that was interwoven with the
state court’s assessment of the merits of the ineffectiveness
claim. But he concluded nonetheless that the claim did not
warrant relief under section 2254. Triplett had signed the plea
questionnaire and waiver of rights acknowledging that the
read-in charges could be considered at sentencing regardless
of what his attorney might have told him. Moreover, the
discussion of those charges at the change of plea hearing
would have confirmed to Triplett that these charges could be
taken into account: “Triplett must have been aware that the
sentencing judge could consider the read-in offenses even if he
did not admit the underlying conduct.” Additionally, the
sentencing judge on post-conviction review indicated that he
had not considered the read-in charges at sentencing. And,
finally, the state court of appeals had reasonably deemed
incredible Triplett’s allegation that he would have rejected a
guilty plea and gone to trial had he understood that the read-in
charges could be considered at sentencing.
Judge Griesbach issued a certificate of appealability as to
Triplett’s claim that Earle was ineffective in failing to properly
advise him concerning the read-in charges, paving the way for
this appeal.
II.
Merits review of a habeas claim is foreclosed if the relevant
state court’s disposition of the claim rests on a state law
No. 18-2507 7
ground that is adequate and independent of the merits of the
federal claim. E.g., Johnson v. Lee, 136 S. Ct. 1802, 1803–04 (2016)
(per curiam); Crockett v. Butler, 807 F.3d 160, 167 (7th Cir. 2015).
The ground is adequate if it is “firmly established and regu-
larly followed as of the time when the procedural default
occurred.” Richardson v. Lemke, 745 F.3d 258, 271 (7th Cir. 2014);
see also Lee, 136 S. Ct. at 1804. It is independent of federal law
if it does not depend on the merits of the petitioner’s claim.
Stewart v. Smith, 536 U.S. 856, 860, 122 S. Ct. 2578, 2581 (2002)
(per curiam). By contrast, “if it ‘fairly appears’ that the state
court rested its decision primarily on federal law or is interwo-
ven therewith, a federal court may review the federal question
unless the state court’s opinion contains a ‘plain statement’ that
its decision rests on state grounds.” Richardson, 745 F.3d at 269
(quoting Harris v. Reed, 489 U.S. 255, 261, 109 S. Ct. 1038, 1042
(1989)). To bar federal review, the state law ground must also
have been invoked and actually relied upon by the last state
court to consider the petitioner’s claim, here the Wisconsin
Court of Appeals. Harris, 489 U.S. at 261–62, 109 S. Ct. at
1042–43.
In this case, the Wisconsin Court of Appeals held that
Triplett was not entitled to an evidentiary hearing on the
merits of his ineffectiveness claim (described as a Machner
hearing in Wisconsin case law1) because he had failed to
support his claim of prejudice with objective facts, as Wiscon-
sin law requires. See State v. Bentley, 548 N.W.2d 50, 55 (Wis.
1996) (“A defendant must do more than merely allege that he
would have pled differently; such an allegation must be
1
State v. Machner, 285 N.W.2d 905 (Wis. Ct. App. 1979).
8 No. 18-2507
supported by objective factual assertions.”); State v. Allen, 682
N.W.2d 433, 438–39 (Wis. 2004). Instead, Triplett, via De Peters’
affidavit, had only conclusorily alleged that he would have
gone to trial had he realized that the sentencing judge was free
to consider the read-in charges.
This was an adequate and independent ground for the state
court’s decision. The court cited a pleading rule articulated by
the Wisconsin Supreme Court and held that Triplett had not
complied with the rule so as to warrant an evidentiary hearing
on the merits of his claim. The court specifically cited
De Peters’ allegation that Triplett would have gone to trial but
for Earle’s mistaken advice as to the read-in charges as
conclusory and insufficient to show prejudice, absent any
additional objective factual allegations to support it.
It is true that the court, in reaching this conclusion, noted
that Triplett had substantially reduced his sentencing exposure
by pleading guilty, and that even without the read-in charges,
it would have been apparent to the sentencing judge that
Triplett was engaged in the business of pimping women. But
we understand these observations as merely illustrating why
it was not obvious that Triplett would have gone to trial rather
than plead guilty and why additional, objective factual
allegations were necessary to make a preliminary showing of
prejudice sufficient to warrant an evidentiary hearing on the
merits of his ineffectiveness claim. Indeed, immediately after
making the remarks that the district court interpreted as
merits-related, the appeals court went on to reiterate that
“Triplett does not assert any facts that support his conclusory
allegation that he would have foregone the substantial benefits
No. 18-2507 9
of the plea agreement and have gone to trial had counsel
correctly informed Triplett about the read-ins.”
In short, the state court of appeals’ decision was focused
entirely on the adequacy of Triplett’s pleading; nowhere is
there a finding as to the merits of his ineffectiveness claim. For
these reasons, the district court was mistaken to say the
appellate court’s holding was interwoven with the merits of
that claim. The appellate court’s decision makes clear that its
holding was independent of the merits of the ineffectiveness
claim and rested instead on Triplett’s failure to comply with an
independent state procedural rule as to the manner in which
such a claim must be pleaded.
In his reply brief, Triplett argues that it was the State’s
burden to show that the pleading rule the Wisconsin court of
appeals relied on is “adequate,” in the sense that it is regularly
and consistently applied by Wisconsin courts. But this court
has already held that the rule in question “is a well-rooted
procedural requirement in Wisconsin and is therefore ade-
quate.” Lee v. Foster, 750 F.3d 687, 694 (7th Cir. 2014). So there
can be little doubt as to the adequacy of this as a ground for the
state court’s decision.
Triplett also contends that the State waived reliance on the
procedural bar by not raising it in the state court proceedings.
Even if the State can be faulted in this regard, the Wisconsin
appellate court nonetheless recognized and relied on Triplett’s
procedural default; any waiver of the default by the State was
for the state court to recognize or ignore as it chose. It is not
our business to police the application of state rules and
practices. See Barksdale v. Lane, 957 F.2d 379, 383–84 (7th Cir.
10 No. 18-2507
1992) (“A federal court sitting in habeas corpus is required to
respect a state court’s finding of waiver or procedural default
under state law. Federal courts do not sit to correct errors
made by state courts in the interpretation and application of
state law.”) (quoting Williams v. Lane, 826 F.2d 654, 659 (7th Cir.
1987)); see also Lee, 750 F.3d at 694; Bobo v. Kolb, 969 F.2d 391,
399 (7th Cir. 1992). And whatever may have occurred in state
court, there is no question that the State preserved and relied
upon Triplett’s default in the district court and in this court.
Despite his procedural default, Triplett might secure review
on the merits of his claim if he were to establish cause for the
default and resulting prejudice, Davila v. Davis, 137 S. Ct. 2058,
2064–65 (2017), but he has not made that showing. We may
take it as a given that Triplett can show cause for the default.
He was represented by counsel as of right when he filed the
post-conviction motion to withdraw his guilty plea, which laid
the groundwork for the claim on direct appeal of his conviction
that Earle gave him incorrect advice as to the consequences of
the plea agreement vis-à-vis the read-in charges and that the
trial court erred in refusing him a hearing on the merits of his
ineffectiveness claim. See Nash v. Hepp, 740 F.3d 1075, 1079 (7th
Cir. 2014) (noting that Wisconsin law expressly allows and in
most cases requires criminal defendants to raise claims of
ineffective assistance of trial counsel as part of a consolidated
and counseled direct appeal, and provides an opportunity to
develop an expanded record in post-conviction proceedings for
that purpose) (citing State v. Evans, 682 N.W.2d 784, 793–94
(Wis. 2004), abrogated on other grounds by State ex rel. Coleman v.
McCaughtry, 714 N.W.2d 900 (Wis. 2006)). We may assume
without deciding that the claim of Earle’s ineffective assistance
No. 18-2507 11
was a substantial one and that De Peters’ failure to preserve
the claim by alleging objective facts supporting an inference
that Triplett was prejudiced by Earle’s mistaken counsel itself
constituted ineffective assistance by De Peters and thus cause
for the default. But as to prejudice, the record exhibits multiple
deficiencies. It is Triplett’s burden to show that there is a
reasonable probability that he would have prevailed on the
motion to withdraw his guilty plea had he been granted an
evidentiary hearing on the merits of the motion. And this of
course merges with the underlying question of whether he was
prejudiced by attorney Earle’s advice as to the read-in charges.
Ultimately, then, Triplett must convince us that there is a
reasonable probability that the outcome of the plea process
would have been different but for Earle’s ineffectiveness. Hill
v. Lockhart, 474 U.S. 52, 59–60, 106 S. Ct. 366, 370–71 (1985);
Brock-Miller v. United States, 887 F.3d 298, 311–13 (7th Cir.
2018). Triplett has not made such a showing. We may set aside
in the first instance the hearsay nature of De Peters’ affidavit:
she submitted that affidavit in order to demonstrate why the
state court should conduct a hearing on Triplett’s request to
withdraw his guilty plea, and we may assume that the form
and content of the affidavit were sufficient for that purpose.
But we are nonetheless left with the same problem that the
state appellate court emphasized: the record as to Triplett’s
decisionmaking is conclusory. Triplett has not demonstrated
why the sentencing judge’s ability to consider the read-in
charges was critical to his decision to plead guilty.2 Nor, as the
2
The State has conceded before this court that the sentencing judge in fact
(continued...)
12 No. 18-2507
district court pointed out, has Triplett explained why the terms
of the plea questionnaire and waiver of rights themselves or
the discussion of the plea agreement at sentencing did not
disabuse him of the mistaken notion that the sentencing judge
could not consider the read-in charges when imposing a
sentence. Moreover, given the substantial reduction in the
sentencing exposure resulting from the plea agreement, it is
not apparent, as the state appeals court noted, why Triplett
would have rejected the plea deal but for the erroneous advice
from Earle. We take Triplett’s point that it is the actual sentence
rather than the sentencing range that matters in this respect.
But, again, Triplett has not elaborated on why he would have
rejected the plea deal even had he anticipated that consider-
ation of the read-in charges might result in a prison term as
long as eleven years, given the possibility that he might have
faced an even longer term had the other charges not been
dismissed. In sum, Triplett has not shown that there is a
substantial probability that the outcome of the plea process
would have been different had Earle advised him differently.
III.
Because the state court’s decision rejecting Triplett’s claim
of ineffectiveness rests on an adequate and independent state
law ground—his failure to plead objective facts supporting his
assertion that he was prejudiced by his attorney’s incorrect
2
(...continued)
did consider the read-in charges in arriving at the sentence it imposed on
Triplett. It is, however, a separate question whether Triplett would have
rejected the plea agreement had Earle made clear to him that the agreement
authorized the sentencing judge to do so.
No. 18-2507 13
advice—we cannot reach the merits of his claim. Even assum-
ing that Triplett can establish cause for his procedural default
in the form of attorney ineffectiveness, he has not demon-
strated actual prejudice resulting from that ineffectiveness that
would permit us to reach the merits of his claim despite the
default. On this basis, we AFFIRM the district court’s judg-
ment.