In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1610
JAMES L. LUMPKIN,
Petitioner-Appellant,
v.
TROY HERMANS, 1 Superintendent,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 19-cv-01008 — James D. Peterson, Chief Judge.
____________________
ARGUED DECEMBER 2, 2021 — DECIDED MAY 2, 2022
____________________
Before FLAUM, EASTERBROOK, and KIRSCH, Circuit Judges.
FLAUM, Circuit Judge. James Lumpkin was arrested and
charged with various drug crimes, including two counts of
possession with intent to deliver. In his petition for writ of
1 Lumpkin is presently confined at the Oregon Correctional Facility in
Oregon, Wisconsin where Troy Hermans is the superintendent. Pursuant
to Fed. R. App. P. 43(c), the caption has been updated to reflect the correct
superintendent.
2 No. 21-1610
habeas corpus and now on appeal, Lumpkin argues that he is
entitled to relief because he was denied effective assistance of
counsel at trial and that the state court’s conclusion to the con-
trary was unreasonable. In particular, he argues that the state
court’s determination that he suffered no prejudice as a result
of his trial counsel’s deficient performance in cross-examining
a key witness was an unreasonable application of Strickland v.
Washington, 446 U.S. 668 (1984). Without deciding whether
trial counsel’s performance was constitutionally deficient, we
conclude that Lumpkin suffered no prejudice as a result of
counsel’s performance. Therefore, the Wisconsin Court of Ap-
peals’ decision to this effect was reasonable, and we affirm the
district court’s denial of Lumpkin’s petition for writ of habeas
corpus.
I. Background
A. Lumpkin’s Arrest and Trial
The events leading to Lumpkin’s arrest and eventual con-
viction began on July 16, 2014, when the Tomah Police De-
partment arrested Stacey Suiter as she attempted to purchase
heroin from a police informant. Following her arrest, Suiter
eventually told an investigating officer that in addition to at-
tempting to purchase drugs from the informant, she had pur-
chased heroin from someone she knew as “Snoop” earlier that
day in Sparta, Wisconsin. She told the detective that she had
purchased three “points,” or 0.3 grams, of heroin for $50 each.
Suiter explained that her friend, Kelly Scott Larkin, had
wanted the heroin but did not have a connection to a dealer,
so Suiter and Larkin traveled to Sparta to meet up with
Suiter’s connection, Snoop.
No. 21-1610 3
Suiter then brought a detective to Sparta and showed him
where she had met with Snoop to complete the transaction.
Upon returning to the police station, Suiter identified peti-
tioner, James L. Lumpkin, as Snoop from a photograph lineup
but changed her story regarding the amount of heroin she had
purchased from him. Instead of three, she stated that she had
actually purchased six points of heroin, which, she explained,
she and Larkin divided equally. Suiter consented to a search
of her residence, where she told police they would find six
points of heroin if Larkin had not yet picked up his half.
A detective then began a video-recorded interview with
Suiter, starting the questioning by stating, “[T]here’s a lot of
inconsistencies here that you’re leaving out.” Suiter re-
sponded, “What can I possibly do to get out tonight?” and
then shortly thereafter reiterated, “I will do anything to get
out tonight…. Did you hear me?” Suiter then explained the
deal she had worked out with Larkin: For a total of $200 pro-
vided by Larkin, the pair would get six points of heroin from
Lumpkin, and Suiter would keep three as her fee for arrang-
ing the transaction. Suiter assured the interviewing detective
that there would be three points in the motel room where she
was staying, as she had not used any heroin since the pur-
chase. She also volunteered that the $300 to $400 of cash in her
motel room was her rent money—not proceeds from drug
sales.
After a short break, the detective returned to the interview
room and told Suiter that officers had only uncovered two
points of heroin from her motel room. Suiter expressed some
confusion but after a long pause admitted that she had, in fact,
used one of the points of heroin earlier that day.
4 No. 21-1610
Officers then executed a search warrant on Lumpkin’s
trailer and, during a pat-down of Lumpkin outside, found in
his pants pockets 3.1 grams (equivalent to thirty-one points)
of heroin, 2.1 grams of cocaine, 1.6 grams of marijuana, and
$1104 in small bills. The heroin was divided into twenty-two
knotted plastic bags (one with a full gram and twenty-one
with 0.1 grams), the cocaine was divided into four such bags,
and the marijuana into two. Lumpkin was charged with five
counts: (1) possession with intent to deliver cocaine, (2) pos-
session with intent to deliver heroin, (3) delivery of heroin,
(4) possession of cocaine, and (5) possession of THC. Lump-
kin pleaded not guilty and proceeded to trial on all five
counts.
Five months before she testified at Lumpkin’s trial, Suiter
pleaded no contest to three crimes. The court entered convic-
tions on two but withheld conviction on the third pursuant to
a deferred entry of judgment.
At trial, the state first introduced testimony recounting the
physical evidence discovered from Lumpkin’s person and
trailer at the time of his arrest. One officer present during the
search testified that, based on his experience and training, the
drugs’ packaging was consistent with how drugs are typically
packaged for sale on the street. That officer also testified about
text messages and call records between Suiter and Lumpkin
found on Suiter’s phone. On the day that Suiter and Larkin
had traveled to Sparta to meet up with Lumpkin, Suiter and
Lumpkin had exchanged calls shortly after 11:00 AM. About
an hour later, Suiter then texted Lumpkin, “300 so full,” to
which Lumpkin responded, “Cool.” Five minutes later, Suiter
texted Lumpkin again, “Almost to Sugarberry,” the road on
which Lumpkin’s trailer was located.
No. 21-1610 5
Then Stacey Suiter took the stand. She testified that she
had purchased a full gram (equivalent to ten points) of heroin
from Lumpkin on the day in question, contradicting her ear-
lier statements to police that she had only purchased three or
six points. She explained that the text, “300 so full,” which she
had sent to Lumpkin, meant that Larkin had given her $300
and that, in exchange for that amount, she wanted to purchase
a full gram from Lumpkin. Suiter explained that Larkin kept
seven points of heroin from the purchase and Suiter received
three, one of which she immediately used.
On cross-examination, Suiter admitted that the police
promised her she wouldn’t be charged if she let them search
her motel room. Lumpkin’s attorney then attempted to ask
whether there was anyone else present in the motel room at
the time of the search, to which Suiter responded, “My two
kids.” After an objection and sidebar, Lumpkin’s attorney
withdrew the question. He did, however, get Suiter to admit
that she had “turned … a profit” on the purchase she made
on behalf of Larkin. Defense counsel’s cross-examination of
Suiter lasted less than five minutes, including the short side-
bar. On re-direct, Suiter described herself as a “runner” for
purchasers without connections to a dealer and stated that she
worked with two or three dealers at any given time.
Larkin then testified that he had driven Suiter to Sparta on
July 16, 2014, so that the two of them could purchase heroin.
He testified that he did not know Lumpkin and denied that
he drove Suiter to a trailer park. He could not remember how
much heroin they purchased that day, and when asked
whether he received seven points, he responded, “I don’t
think I have ever seen that much.” He admitted, however,
6 No. 21-1610
that he was taking “[p]robably two or three” doses of heroin
a day at that time, which affected his memory.
A friend of Lumpkin, Jamie West, then testified that she
had been around Lumpkin frequently (more than 100 times)
in the year before his arrest. She stated that she was aware
that he frequently carried large amounts of cash, though she
was not aware of his having a job during the time she knew
him.
Finally, a detective testified about recorded phone calls
Lumpkin had made from jail after his arrest. In one such call,
Lumpkin and a male on the other end of the line speculated
that it must have been Suiter that had set him up, because she
had come to see him the day he was arrested. In another call,
Lumpkin described the amount of drugs he had been caught
with, saying, “I ain’t had shit.” The male on the other end re-
sponded, “That was still too much though to get caught in
your pocket.”
Lumpkin elected not to testify, and the defense called no
witnesses. In his closing argument, Lumpkin’s attorney at-
tacked Suiter’s credibility, saying:
Who’s the biggest witness, the star of the show?
Stacey Suiter. She is the one who says she
bought…. I can tell you this much. The term for
a person who takes money and delivers drugs
in exchange for that money is a dealer. Straight
out. It can’t be denied. It can’t be argued. She
took [Larkin’s] money. She came back with the
goods. And to say that she is a user, but it is
okay. I just kept some of it, that’s my reward.
No. 21-1610 7
She is a dealer. That’s how she gets her drugs.
You give me money, I show up with the goods.
What I am not sure of is why she was going to
see Mr. Lumpkin? Based on the facts, it is just as
probable she went there to make a sale as she
went there to make a buy. And finally, as far as
my opinion of Ms. Suiter, she is storing drugs in
her residence, which was a motel room, while
her kids were there. I have very little faith in an-
ything Stacey Suiter says. She clearly would be
self-serving, she clearly would say anything she
believes other people want to hear so she can cut
a better deal herself.
The jury convicted Lumpkin on four of the five counts,
finding him not guilty only on the possession of cocaine
count.
B. Appeals
In June 2016, Lumpkin filed a motion for postconviction
relief, arguing that he had received ineffective assistance of
counsel at trial. In particular, he asserted that his trial counsel
was deficient for failing to impeach Suiter with her incon-
sistent statements, statements evincing a motive to lie, alleged
drug dealing, and prior criminal convictions/deferred judg-
ment. At the evidentiary hearing on this motion, Lumpkin’s
trial counsel, Adrian Longacre, testified in defense of his
cross-examination strategy. Describing his general approach,
he stated, “I wanted to let the jury see that she was a user, not
the world’s most reliable person.” He explained that he
“didn’t want to push too much beyond that” because he did
not want to “make [Suiter] look like a victim.” When asked
8 No. 21-1610
why he didn’t impeach Suiter with her inconsistent state-
ments, Longacre explained that he did not see much value in
doing so, given that the inconsistencies related only to the
amount she had purchased from Lumpkin. Heading down
this line of questioning, he explained, might open the door for
Suiter to explain that she confused the transaction of the day
in question with other transactions she had with Lumpkin in
the past. He gave a similar explanation when asked why he
did not question Suiter about her motive to lie to the police.
And in response to why he did not bring up Suiter’s own con-
victions and her deferred judgment, Longacre simply ex-
plained that he did not see any benefit in doing so.
The trial court denied Lumpkin’s motion for postconvic-
tion relief. Although it found that there had been “at least
some deficient performance” by Lumpkin’s trial counsel—re-
ferring to the decision not to raise Suiter’s convictions and de-
ferred judgment as well as the general approach of not want-
ing to “go too hard on” Suiter—the court determined that
Lumpkin had not been prejudiced by the deficient perfor-
mance. In support of this conclusion, the court pointed to the
overwhelming physical evidence of drugs and cash found on
Lumpkin as well as the text messages exchanged between
Suiter and Lumpkin. According to the court, given this evi-
dence, there was no reasonable possibility that the jury would
have issued a not guilty verdict even if the evidence attacking
Suiter’s credibility had been presented. For this reason, the
court denied Lumpkin’s motion.
Lumpkin appealed this decision to the Wisconsin Court of
Appeals, which affirmed in part and reversed in part the trial
court’s decision. The court agreed that Longacre’s decision
not to raise Suiter’s statements evincing a willingness to lie to
No. 21-1610 9
police (“What can I possibly do to get out tonight?” and “I
will do anything to get out tonight.”) constituted deficient
performance. Additionally, the court agreed that Longacre’s
failure to present evidence of Suiter’s convictions and de-
ferred judgment constituted deficient performance. On the
other hand, the court stated that the decision to raise Suiter’s
inconsistent statements to police was “not objectively unrea-
sonable,” since “[t]rial counsel could reasonably believe that
attempting to delve into these areas would be time consum-
ing and difficult to explain, and could run the risk of bringing
out additional information that would not be favorable to
Lumpkin, such as testimony by the informant about previous
transactions with Lumpkin.”
The appeals court determined that Longacre’s deficiencies
were prejudicial with regard to the delivery of heroin convic-
tion. That conviction, the court reasoned, depended almost
entirely on Suiter’s testimony. The failure to effectively im-
peach her was therefore a critical error and may have changed
the ultimate outcome on that count. As to the possession with
intent to deliver counts, the court determined that Lumpkin
suffered no prejudice from his trial counsel’s deficiencies. The
court’s opinion stated:
We conclude that there is no prejudice on these
counts. Even if the jury were to disbelieve the
informant’s testimony entirely, we are suffi-
ciently confident that the jury would still have
convicted on these counts. Although it is true
that certain common physical indicia of intent
to deliver were not found in this case, an infer-
ence of that intent could still reasonably be
drawn from the way the substances were
10 No. 21-1610
packaged and the significant amount of cash
Lumpkin was carrying.
When Lumpkin filed a petition for review with the Wis-
consin Supreme Court alleging that the Court of Appeals had
applied the wrong standard under Strickland, the appeals
court withdrew its opinion and reissued another one, chang-
ing only the underlined portion of the following passage:
We conclude that there is no prejudice on these
counts. Even if the jury were to disbelieve the
informant’s testimony entirely, we are suffi-
ciently confident that the jury would still have
convicted on these counts. Although it is true
that certain common physical indicia of intent
to deliver were not found in this case, we con-
clude that the jury would most likely still have
inferred that intent from the way the substances
were packaged and the significant amount of
cash Lumpkin was carrying.
The day after this decision issued, Lumpkin filed a motion
for reconsideration, alleging once again that the court had ap-
plied an improper standard. And again, the court withdrew
its opinion. About a month later, the court issued another
opinion, this time with only the following underlined
changes:
We conclude that there is no prejudice on these
counts. Even if the jury were to disbelieve the
informant’s testimony entirely, we are suffi-
ciently confident that the jury would still have
convicted on these counts. Although it is true
that certain common physical indicia of intent
No. 21-1610 11
to deliver were not found in this case, we con-
clude that it is highly likely that the jury would
still have inferred that from the way the sub-
stances were packaged and the significant
amount of cash Lumpkin was carrying. Accord-
ingly, there is no reasonable probability that the
jury would have had a reasonable doubt as to
Lumpkin’s guilt.
Lumpkin filed a second petition for review at the Wiscon-
sin Supreme Court, but the court denied this petition in De-
cember 2018.
Lumpkin then filed a petition for writ of habeas corpus in
the Western District of Wisconsin, raising the same argu-
ments for ineffective assistance of counsel and requesting a
vacatur of his convictions for possession with intent to deliver
heroin and cocaine. 2 The district court denied the petition,
stating that the state appeals court’s decision was not an un-
reasonable application of Strickland, but issued a certificate of
appealability. This appeal followed.
II. Discussion
A. Standard of Review and Applicable Law
“On appeal we review de novo district court rulings on
petitions for habeas relief and review any findings of fact for
2 Lumpkin’s conviction for delivery of heroin had already been va-
cated by the state appeals court, and he had already completed his sen-
tence for the possession of THC conviction. As such, only his convictions
for possession with intent to deliver heroin and possession with intent to
deliver cocaine were at issue at the district court. These same convictions
remain the only ones at issue now.
12 No. 21-1610
clear error.” Brown v. Brown, 847 F.3d 502, 506 (7th Cir. 2017).
“Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), a federal court is not authorized to issue a writ
of habeas corpus on a claim rejected by a state court on the
merits unless the state-court decision was ‘contrary to, or in-
volved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court,’ or was
‘based on an unreasonable determination of the facts.’” Cook
v. Foster, 948 F.3d 896, 901 (7th Cir. 2020) (quoting 28 U.S.C.
§ 2254(d)).
The applicable federal law in this instance is the Supreme
Court’s 1984 decision, Strickland v. Washington, 466 U.S. 668.
In that case, the Court laid out the standard for obtaining re-
lief for ineffective assistance of counsel. The Court ruled that
a defendant must show that (1) counsel’s performance was
deficient and (2) the deficient performance was so serious that
it deprived the defendant of a fair trial. Id. at 687. With regard
to the performance prong, “[j]udicial scrutiny of counsel's
performance must be highly deferential.… Because of the dif-
ficulties inherent in making the evaluation [of counsel’s per-
formance], a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. With regard to the preju-
dice prong, the defendant must show that there is a reasona-
ble probability that a more favorable result would have oc-
curred absent counsel’s errors. Id. at 696. The effect of the al-
leged errors must be of a magnitude that calls into question
the reliability of the trial: “In every case the court should be
concerned with whether, despite the strong presumption of
reliability, the result of the particular proceeding is unreliable
because of a breakdown in the adversarial process that our
No. 21-1610 13
system counts on to produce just results.” Id. The Court fur-
ther instructed:
[A] court need not determine whether counsel's
performance was deficient before examining
the prejudice suffered by the defendant as a re-
sult of the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel's
performance. If it is easier to dispose of an inef-
fectiveness claim on the ground of lack of suffi-
cient prejudice, which we expect will often be
so, that course should be followed. Courts
should strive to ensure that ineffectiveness
claims not become so burdensome to defense
counsel that the entire criminal justice system
suffers as a result.
Id. at 697.
This is true even when a federal court is reviewing the fi-
nal decision of a state court. See Shinn v. Kayer, 141 S. Ct. 517,
524 (2020) (noting that “[f]ederal courts may not disturb the
judgments of state courts unless each ground supporting the
state court decision is examined and found to be unreasona-
ble.” (citation and internal quotation marks omitted)). If the
state court’s decision that a defendant “suffered no prejudice
… was reasonable,” then “[t]his is enough to require us to af-
firm the district court's judgment denying the petition for a
writ of habeas corpus.” Ward v. Neal, 835 F.3d 698, 700 (7th
Cir. 2016).
14 No. 21-1610
B. Analysis
Because counsel’s performance has been adequately as-
sessed by the state courts in Wisconsin and the district court
below and because a lack of prejudice is decisive, we heed the
Supreme Court’s instruction to “dispose of [Lumpkin’s] inef-
fectiveness claim on the ground of lack of sufficient preju-
dice,” Strickland, 466 U.S. at 697, without reviewing the Wis-
consin appellate court’s analysis concerning Lumpkin’s coun-
sel’s performance. Even assuming arguendo that his counsel
performed deficiently, our examination of the record reveals
that Lumpkin suffered no prejudice as a result (with respect
to the possession with intent to deliver counts), and we thus
hold that the Wisconsin Court of Appeals’ decision to this ef-
fect was a reasonable application of Strickland.
In arguing for reversal, Lumpkin first claims that the Wis-
consin Court of Appeals employed a prejudice standard that
was contrary to that handed down by the Court in Strickland.
Repeatedly, Lumpkin points out that the appeals court wrote,
“we conclude that it is highly likely that the jury would still
have” convicted him even but for counsel’s errors, which does
not answer the relevant inquiry from Strickland, see 466 U.S. at
694. He conveniently ignores, however, the very next sen-
tence in the court’s opinion: “[T]here is no reasonable proba-
bility that the jury would have had a reasonable doubt as to
Lumpkin’s guilt.” This holding echoes Strickland’s standard
for prejudice almost exactly. See Strickland, 466 U.S. at 694
(“The defendant must show that there is a reasonable proba-
bility that, but for counsel's unprofessional errors, the result
of the proceeding would have been different.”). It matters not
that this language appeared only in the third opinion issued
by the court, for we review the last reasoned state court
No. 21-1610 15
decision on the issue. See Ylst v. Nunnemaker, 501 U.S. 797,
804–05 (1991). We therefore reject Lumpkin’s argument that
the Wisconsin Court of Appeals applied an incorrect standard
in evaluating whether he suffered any prejudice.
Having concluded that the court applied the correct prej-
udice standard, we must now determine whether the state
court’s determination that Lumpkin suffered no prejudice un-
der that standard was reasonable. The record shows that this
conclusion was indeed reasonable. Even if Lumpkin’s trial
counsel had impeached Suiter so thoroughly that she could
be deemed completely unreliable and her testimony could be
set aside entirely, there existed overwhelming other evidence
incriminating Lumpkin on the possession with intent to de-
liver counts.
At the time of his arrest, officers uncovered from Lump-
kin’s pockets three different types of drugs, separated into
nearly thirty individual plastic bags. It strains credulity to im-
agine that Lumpkin was storing this amount of drugs in this
manner for personal use. At trial, an officer so testified, stat-
ing that this type of packaging was consistent with street sale.
Furthermore, in a recorded call from jail, Lumpkin described
the amount of drugs he had on him at the time of his arrest—
an amount that far surpasses the one to three tenths of a gram
Suiter and Larkin testified was the typical amount of heroin
purchased at one time for personal use—as being inconse-
quential (“I ain’t had shit.”). Also on his person at the time of
his arrest was more than $1100 in cash, all in small bills,
which, an officer testified, is another fact suggesting that
Lumpkin was in the business of dealing drugs. Larkin also
testified that he drove Suiter to Sparta, where Lumpkin lived,
so the pair could purchase drugs. Text messages uncovered
16 No. 21-1610
from Suiter’s phone confirm that she and Larkin had planned
on purchasing the drugs from Lumpkin and that Suiter had
communicated with Lumpkin to confirm those plans. All of
this amounts to overwhelming evidence proving that Lump-
kin possessed drugs with an intent to deliver them.
Thus, even if the jury had completely set aside Suiter’s tes-
timony as a result of a devastating cross-examination by
Lumpkin’s defense counsel, there is no reasonable probability
that the jury would have acquitted him on the possession with
intent to deliver charges. Accordingly, we conclude that the
state court’s decision to this effect was reasonable, apart from
his counsel’s performance. Even if his counsel’s performance
was deficient—an issue we do not reach—Lumpkin suffered
no resulting prejudice. We therefore deny Lumpkin’s petition
for a writ of habeas corpus.
III. Conclusion
The district court’s order is AFFIRMED.