Adeyanju v. Wiersma

12 F.4th 669

Jonathon ADEYANJU, Petitioner-Appellant,

v.Lance WIERSMA, Administrator, Division of Community Corrections, Respondent-Appellee.

No. 20-1876

United States Court of Appeals, Seventh Circuit.

Argued May 12, 2021

Decided August 31, 2021

Brittney Lane Kubisch, Attorney, Jones Day, Los Angeles, CA, David T. Raimer, Attorney, Jones Day, Washington, DC, for Petitioner-Appellant.

Jonathon Adeyanju, pro se.

Abigail C.S. Potts, Attorney, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Respondent-Appellee.

Before Flaum, Hamilton, and Brennan, Circuit Judges.

Brennan, Circuit Judge.

For his role in a gang shooting, a jury convicted Jonathon Adeyanju of attempted homicide and endangering safety by use of a firearm. His primary defense at trial was that he was not involved, as no physical evidence connected him to the crime, and he said the State's witnesses could not be trusted. Adeyanju's counsel contended that the shooters—whoever they were—intended to scare but not to kill their gang rivals, so they were guilty of the endangering safety charges but not attempted homicide.

His counsel was ineffective, Adeyanju submits, because he should have requested a jury instruction on a lesser-included offense to attempted homicide—first-degree recklessly endangering safety. Then, the jury could have found that he was among the shooters but did not intend to kill anyone. But the jury already had that option with the endangering safety by use of a firearm charges, which it chose not to take. Because Adeyanju fails to show that he was prejudiced by counsel's purported error, we affirm the district court's denial of his 28 U.S.C. § 2254 petition.

I

A

On the evening of August 9, 2005, a group of men fired a hail of bullets into a crowd of rival gang members gathered outside a garage in Oregon, Wisconsin. There were no fatalities, but three of the victims suffered gun-shot wounds (one to the hand and thigh, one to the thigh, and one to the groin). The plot, it appears, was a preemptive strike: the shooters wanted to prevent retaliation against members of their own gang, including Adeyanju's brother, who had robbed members of the rival gang.

Adeyanju was charged as one of the shooters with three counts each of attempted first-degree intentional homicide and of endangering safety by use of a firearm. The mens rea requirement differs for these two crimes: attempted homicide requires "intent to kill" another person, WIS. STAT. § 940.01(1), whereas endangering safety by use of a firearm requires "[i]ntentionally discharg[ing] a firearm into a vehicle or building under circumstances in which he or she should realize there might be a human being present," WIS. STAT. § 941.20(2)(a). Further, Adeyanju was charged as a "party to" these crimes, meaning that he could be found guilty for directly committing the crimes, aiding and abetting the commission of the crimes, or acting in a conspiracy to commit the crimes. WIS. STAT. § 939.05(2).

At trial, defense counsel argued principally that Adeyanju was not among the shooters. He did not offer a specific alibi, and Adeyanju exercised his right not to testify. Instead, counsel highlighted that no physical evidence tied Adeyanju to the shooting. In addition, he attempted to cast doubt on the State's witnesses who placed Adeyanju on the scene, noting confusion about the number of shooters and the witnesses’ purported motivations to lie.

Adeyanju's counsel also presented an alternative defense: the shooters did not intend to kill their rivals, but rather simply to scare them. In support of this theory, counsel elicited testimony on cross-examination that some of the participants did not intend to kill anyone. Counsel argued to the jury in closing that because the shooters did not intend to kill, the shooting was "cover[ed]" by the endangering safety by use of a firearm charges, but not the attempted homicide charges.

Counsel drafted a jury instruction on a lesser-included offense for attempted first-degree homicide—first-degree recklessly endangering safety, WIS. STAT. § 941.30(1). But he did not request this charge at the jury instruction conference, and the jury was never instructed on it. Ultimately, Adeyanju was convicted of all six counts.

B

Adeyanju moved for state postconviction relief, arguing his trial counsel was ineffective for failing to request the first-degree recklessly endangering safety jury instruction. At an evidentiary hearing, his counsel testified he felt the defense's strategies were limited by his client's decisions not to accept a plea offer and not to testify. Heading into trial, counsel thought Adeyanju was likely to be convicted on all counts. Counsel said his client never insisted on an "all-or-nothing" defense. He did not recall discussing the possibility of a lesser-included offense instruction with his client, but said if he had, he would have remembered. The lesser-included offense instruction would have been consistent with his alternative lack-of-intent defense theory. Counsel suggested he had no strategic reason for not requesting the instruction; rather, he said he "didn't think of it" during trial.

The state court denied post-conviction relief, concluding that counsel had been effective because there was "no basis" to request a lesser-included offense. First, the court explained that under Wisconsin law, "[i]f a ‘reasonable view’ of the evidence is sufficient to support a guilty verdict beyond a reasonable doubt for the greater and lesser-included offenses, then no lesser-included instruction need be given." State v. Weeks , 165 Wis.2d 200, 477 N.W.2d 642, 645–46 (Wis. Ct. App. 1991) (quoting State v. Bergenthal , 47 Wis.2d 668, 178 N.W.2d 16, 21 (1970), cert. denied , 402 U.S. 972, 91 S.Ct. 1657, 29 L.Ed.2d 136 (1971) ). Further referencing Weeks , the state court noted that "intent to kill" within the definition of first-degree homicide "means either that the actor ‘has a purpose’ " to take the life of another human being "or is aware that his or her conduct is practically certain to cause that result." Id. at 647 (Fine, J., concurring) (emphasis removed) (quoting WIS. STAT. § 939.23(4) ). And, the court emphasized, Adeyanju was charged under WIS. STAT. § 939.05(2) as a party to the crime of attempted homicide, meaning the jury could have found him guilty of that crime if any of the other shooters had "intent to kill" any of the gang rivals or if any "was aware that his conduct was practically certain to kill" one of them.

The court then highlighted that, as part of a "concerted effort" in which Adeyanju was a "willing participant," "five or six people, all facing in the same direction, all firing their guns at once" shot a "[m]inimum of 33 rounds" toward the rival gang's garage. The shooters also made extensive efforts to avoid getting caught, including rubbing the ammunition with alcohol prior to loading each weapon to make sure that no fingerprints could be found, selecting firearms that would not leave casings, and wearing "virtually identical ... black T-shirts." Thus, the court concluded, the record did not reveal evidence that would cast a reasonable doubt on any element of attempted first-degree homicide, including doubt on the element of intent.

The Wisconsin Court of Appeals affirmed on different grounds. State v. Adeyanju , 773 N.W. 2d 225, 2009 WL 2047271 (Wis. Ct. App. July 16, 2009) (per curiam). Also evaluating Adeyanju's claim under the Strickland framework, the appeals court concluded it was reasonable for counsel not to request a lesser-included offense instruction because the instruction may have harmed Adeyanju. Id. at *3–4. If the jury found that Adeyanju did not have the requisite intent for attempted homicide, it would have had to acquit him of that crime. Id. at *3. But if the lesser-included instruction were introduced, the jury could have reached a guilty verdict on it. Id. Therefore, the court concluded, it was objectively reasonable "for counsel to forego [sic] a lesser-included offense instruction in the hope of forcing the jury into complete acquittal, rather than giving it a second option for conviction." Id. at *3.

The Wisconsin Supreme Court denied review, and Adeyanju did not seek certiorari in the Supreme Court of the United States. Instead, he petitioned for federal habeas relief under 28 U.S.C. § 2254, which the district court denied.

II

We review de novo the district court's denial of Adeyanju's petition for a writ of habeas corpus. See Schmidt v. Foster , 911 F.3d 469, 476 (7th Cir. 2018) (en banc). "Federal habeas review ... exists as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.’ " Woods v. Donald , 575 U.S. 312, 316–17, 135 S.Ct. 1372, 191 L.Ed.2d 464 (2015) (quoting Harrington v. Richter , 562 U.S. 86, 102–03, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ). Relief is rarely available. We may grant it only to a state prisoner who is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

Before us, Adeyanju continues to press, as he did in state court, that he received ineffective assistance because his trial counsel did not propose a jury instruction on the lesser-included offense of recklessly endangering safety. To prevail, Adeyanju must show under Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and subsequent authority, that his trial counsel provided ineffective assistance. Strickland requires a showing of both deficient performance and prejudice resulting from it. Id. at 687, 104 S.Ct. 2052. Counsel performance fails to meet constitutional standards only when it falls "below an objective standard of reasonableness" and it prejudices a petitioner only if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687–88, 694, 104 S.Ct....