Peter Whyte v. Dan Winkleski ( 2022 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1268
PETER WHYTE,
Petitioner-Appellant,
v.
DAN WINKLESKI, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12-cv-00486 — Nancy Joseph, Magistrate Judge.
____________________
ARGUED NOVEMBER 9, 2021 — DECIDED MAY 19, 2022
____________________
Before EASTERBROOK, KANNE, and BRENNAN, Circuit
Judges.
BRENNAN, Circuit Judge. A jury convicted Peter Whyte of
second-degree intentional homicide for killing his girlfriend.
In this appeal from the denial of his habeas corpus petition
under 28 U.S.C. § 2254, Whyte argues his constitutional rights
were violated when, at trial, he was required to wear a stun
belt in front of the jury. He also presses related ineffective as-
sistance of counsel allegations. Because Whyte’s claims are
2 No. 21-1268
procedurally defaulted under adequate and independent
state grounds, federal review is foreclosed, and we affirm the
district court.
I
A
In August 2006, Whyte and his girlfriend, Suzanne
Weiland, returned to their cabin in St. Croix County, Wiscon-
sin after a night of drinking. Whyte declined Weiland’s sexual
advances and the couple began to quarrel. Enraged, Weiland
lunged at Whyte with a knife, stabbing him in the chest.
Whyte fell to the floor but was able to pull himself back up.
Then Weiland attacked again, stabbing Whyte in his stomach.
Whyte knocked Weiland back and pulled out the knife.
Armed with a second knife, Weiland again charged at Whyte.
This time, Whyte grabbed Weiland by the hand and stabbed
her twice in the back with the knife he had removed from his
stomach. The couple fell to the floor while attacking each
other. Whyte continued to stab Weiland until she stopped
struggling. Whyte passed out, and when he woke up,
Weiland was dead beside him.
Weiland received nineteen total stab wounds, including
three to her neck severe enough to have caused her death
within minutes. Whyte was stabbed eight to ten times. The
physician who performed Weiland’s autopsy testified that she
died with a 0.31 blood alcohol concentration. 1 Weiland, five
feet, seven inches in height and weighing 150 pounds, was
1That is, .31 grams of alcohol per 100 milliliters of blood. In compari-
son, Wisconsin’s legal limit for driving a motor vehicle is a blood alcohol
concentration of .08. The record is unclear as to Whyte’s blood alcohol con-
centration at the time.
No. 21-1268 3
notably smaller than Whyte, who measured six feet, four
inches and weighed 283 pounds.
Whyte was charged with first-degree intentional homi-
cide. At trial, Whyte did not dispute that he killed Weiland,
but raised self-defense—that he reasonably believed he was
using the force necessary to prevent imminent death or great
bodily harm to himself.
During trial Whyte was required to wear a stun belt, “used
to restrain prisoners, often in courtrooms where a prisoner
who acts up can frighten and even injure jurors, the judge, the
lawyers, and spectators.” Stephenson v. Neal, 865 F.3d 956, 958
(7th Cir. 2017). When used in court, “an officer is authorized
to send an electric shock to a box on the stun belt that contains
electrical wires, should the prisoner become violent or other-
wise disrupt the proceeding; the shock disables the prisoner
from acting up.” Id. The judge preapproved a request from
the sheriff’s office for Whyte to wear the stun belt at trial. The
sheriff’s office requested the device “out of an abundance of
caution,” and while the judge admitted that Whyte had “been
fine,” he nevertheless ordered Whyte to wear the belt because
Whyte was “a large man” who “may be an emotional person.”
Although the judge and the parties’ counsel believed
Whyte would wear the stun belt under his clothes so the jury
would not see it, Whyte ultimately had to wear the belt over
his dress shirt. Throughout the trial, Whyte’s counsel tried to
conceal the belt by standing in front of the jury whenever
Whyte entered the courtroom. The parties dispute whether
the jury ever saw the stun belt or understood the nature of the
device, and the record is silent on both points. But they do not
disagree that the belt interfered with Whyte’s ability to ex-
plain the events surrounding Weiland’s death. When Whyte
4 No. 21-1268
took the stand to testify, he declined to reenact the altercation
with Weiland for fear the jury would see the device and draw
negative inferences. Whyte also claims the belt had a chilling
effect on his testimony, rendering his account of the incident
“stilted” and “emotionless,” a point the State underscored in
its closing argument. Despite these limitations, Whyte’s trial
counsel did not object to the stun belt’s use.
The jury was instructed on the elements of both first- and
second-degree intentional homicide. For the latter charge, the
jury was informed that Whyte would be guilty “if [he] caused
the death of Suzanne Weiland with the intent to kill, and ac-
tually believed the force used was necessary to prevent immi-
nent death or great bodily harm to himself, but his belief was
unreasonable.” The jury found Whyte guilty of second-degree
intentional homicide, and he was sentenced to forty years of
incarceration followed by twenty years of extended supervi-
sion.
Whyte appealed his conviction and his counsel raised a
single issue—that the admission into evidence of Weiland’s
statements about her relationship with Whyte violated the
Sixth Amendment’s Confrontation Clause. The Wisconsin
Court of Appeals disagreed, holding that “the error, if any, in
admitting the challenged testimony was harmless” and that
“[n]one of the challenged statements bear on the jury’s deter-
mination whether the amount of force used was reasonable.”
Whyte’s petition to the Wisconsin Supreme Court to review
that decision was denied.
B
Following his losses on direct appeal, Whyte, representing
himself, petitioned the district court for relief under 28 U.S.C.
No. 21-1268 5
§ 2254. Because Whyte had not exhausted his available state
remedies, the court held his petition in abeyance and stayed
the proceedings.
Postconviction Proceedings. Whyte turned back to the state
trial court and, still acting pro se, moved for postconviction
relief under WIS. STAT. § 974.06 as well as to modify his sen-
tence. In his motions, Whyte raised several new claims he had
not pursued on direct appeal or in a § 974.02 motion 2, includ-
ing a due process claim premised on the stun belt, ineffective
assistance of trial counsel for failing to object to the stun belt,
and ineffective assistance of postconviction counsel for ne-
glecting to raise those claims. 3 The state trial court denied
2 “In Wisconsin’s postconviction process, an offender’s initial step in
challenging a sentence is a postconviction motion filed under WIS. STAT.
§ 974.02, which allows the trial court the first opportunity to consider cer-
tain challenges.” Minnick v. Winkleski, 15 F.4th 460, 465 n.3 (7th Cir. 2021).
3 Whyte’s counsel after trial is variously referred to as “postconviction
counsel,” “appellate counsel,” or a combination of both. But there is a dif-
ference between these two functions. Under Wisconsin law, a claim for
ineffective assistance of postconviction counsel alleges deficient represen-
tation in the state trial court, and such claims are to be raised in that court.
State ex rel. Warren v. Meisner, 944 N.W.2d 588, 593, 595 (Wis. 2020). In con-
trast, a claim for ineffective assistance of appellate counsel concerns that
attorney’s performance in the state appellate court, and those claims
should be brought in a habeas petition in that court. Id. at 592, 595.
Here, Whyte’s pro se § 974.06 motion alleged that “post-conviction
counsel unreasonably failed … to identify and raise the substantive and
trial ineffectiveness claims identified in this motion.” Because the Wiscon-
sin Supreme Court has treated similar pleadings as claims for ineffective
assistance of postconviction counsel, and because the Wisconsin Court of
Appeals addressed Whyte’s claim without requiring him to first raise it in
a state habeas proceeding, we refer to Whyte’s argument as a claim for
ineffective assistance of postconviction counsel. Id. at 596–97 (construing
6 No. 21-1268
Whyte’s motions without a hearing, finding that his claims ei-
ther lacked merit or were procedurally barred by State v. Es-
calona-Naranjo, 517 N.W.2d 157 (Wis. 1994), because Whyte
did “not rais[e] the majority of his issues in his direct appeal.”
Whyte appealed the state trial court’s denial of his post-
conviction motions. The Wisconsin Court of Appeals af-
firmed, concluding that WIS. STAT. § 974.06(4) and Escalona-
Naranjo—which require litigants to initially raise claims for
postconviction relief in a § 974.02 motion or on direct ap-
peal—precluded Whyte’s motions. Whyte argued he fell
within an exception to this rule, which allows defendants to
raise new constitutional challenges if they can show “suffi-
cient reason” for not asserting the issue earlier. His ineffective
assistance of trial counsel and stun belt claims fell within this
exception, Whyte reasoned, because his postconviction coun-
sel was ineffective by not raising these issues, thus constitut-
ing a “sufficient reason” for his tardiness.
But the state appellate court decided that Whyte’s claim
for ineffective assistance of postconviction counsel was itself
procedurally defaulted because Whyte’s pleadings on that is-
sue were inadequate. Under State v. Allen, a defendant’s mo-
tion must “raise facts sufficient to entitle the movant to relief”
rather than “conclusory allegations.” 682 N.W.2d 433, 437
(Wis. 2004). In his postconviction motion, Whyte stated that,
“[a]t a hearing, the defendant will establish that post-convic-
tion counsel’s deficient performance prejudiced him.”
petitioner’s claim “that his counsel after conviction ‘was ineffective for not
raising a claim for the ineffective assistance of trial counsel’” as a “claim
that postconviction counsel was ineffective”).
No. 21-1268 7
Because Whyte’s pleading contained “only conclusory and le-
gally insufficient allegations that postconviction counsel was
ineffective,” the court determined that Whyte’s postconvic-
tion counsel claim was barred by Allen’s pleading standards.
And since that claim failed, Whyte was left without a “suffi-
cient reason” to evade Escalona-Naranjo’s procedural bar on
his claims for the stun belt and ineffective assistance of trial
counsel.
In addition to its procedural holding, the state appellate
court addressed the merits of Whyte’s claims. Whyte argued
his trial counsel was ineffective for, among other things,
“fail[ing] to object to the visibility of the stun belt,” but the
court disagreed, concluding that Whyte failed to show preju-
dice under Strickland v. Washington, 466 U.S. 668 (1984).
“[T]here was overwhelming evidence of Whyte’s guilt,” the
court reasoned, “including the size disparity between Whyte
and the victim; the victim’s intoxication; and the sheer num-
ber of stab wounds the victim suffered, many of which could
have been independently fatal.” The court continued: “In
light of the overwhelming evidence of Whyte’s guilt, trial
counsel’s alleged deficiencies—either individually or collec-
tively—do not undermine our confidence in the outcome at
trial.” Because Whyte’s challenge to the effectiveness of trial
counsel lacked merit, the court further concluded that
“Whyte’s derivative challenge to the effectiveness of his post-
conviction counsel likewise fails.” Whyte appealed the state
appeals court’s decision, but the Wisconsin Supreme Court
denied his petition for review.
Habeas Proceedings. Back in federal court, Whyte amended
his § 2254 petition and the district court lifted the stay on the
8 No. 21-1268
proceedings. 4 Whyte raised three issues—the visibility of the
stun belt and its effect on the trial proceedings, his trial coun-
sel’s failure to object to the device, and his postconviction
counsel’s failure to raise those claims.
The district court rejected each of Whyte’s claims and de-
nied his habeas petition. Citing Estelle v. McGuire, 502 U.S. 62,
67–68 (1991), the court highlighted that “[h]abeas relief is
available only for state court decisions that are contrary to fed-
eral law,” and that federal courts “may not review whether a
state court properly applied its own state laws.” Applying
this rule, the district court held that Whyte was not entitled to
federal habeas relief for his stun belt claim because the state
court dismissed it under WIS. STAT. § 974.06(4) and Escalona-
Naranjo, which constitute adequate and independent state
procedural grounds foreclosing federal review. Whyte’s
claim of ineffective assistance of trial counsel fared no better.
The state appellate court resolved that issue under the same
state procedural rules, although the district court chose to af-
firm the state appellate court’s decision under a traditional
Strickland analysis, concluding that Whyte had not shown
prejudice stemming from his trial counsel’s performance. On
Whyte’s claim that his postconviction counsel was constitu-
tionally deficient, the district court reasoned that this issue
was also barred from federal review because the state court
4 Following the failed postconviction motion, and before he amended
his federal habeas petition, Whyte filed a pro se petition for a writ of ha-
beas corpus in state court. Whyte’s state habeas petition did not raise the
stun belt or related challenges to his trial and postconviction counsel’s per-
formances, focusing instead on unrelated ineffective assistance of postcon-
viction counsel issues that are not before us. The Wisconsin Court of Ap-
peals denied Whyte’s petition, and the Wisconsin Supreme Court again
denied review.
No. 21-1268 9
had ruled that this claim was insufficiently pleaded under Al-
len—another adequate and independent state procedural
rule.
Whyte now appeals the district court’s denial of his § 2254
petition. He challenges the constitutionality of the stun belt’s
use and raises related claims of ineffective assistance of coun-
sel.
II
We begin with procedural default. “[A] federal court may
not review federal claims that were procedurally defaulted in
state court—that is, claims that the state court denied based
on an adequate and independent state procedural rule.”
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). “Merits review of
a habeas claim is foreclosed if the relevant state court’s dispo-
sition of the claim rests on a state law ground that is adequate
and independent of the merits of the federal claim.” Triplett v.
McDermott, 996 F.3d 825, 829 (7th Cir. 2021). “Unless the peti-
tioner can establish ‘cause’ for and ‘prejudice’ from the de-
fault, ‘federal habeas review is at an end.’” Garcia, 28 F.4th 764,
771 (7th Cir. 2022) (quoting Johnson v. Thurmer, 624 F.3d 786,
789 (7th Cir. 2010)). “We review questions of procedural de-
fault de novo.” Id.In Escalona-Naranjo, the Supreme Court of Wisconsin held
that a defendant forfeits the right to raise a constitutional is-
sue in a WIS. STAT. § 974.06 postconviction motion “that could
have been raised on direct appeal or in a sec. 974.02 motion.”
517 N.W.2d at 164 (emphasis omitted); see Matthew M. Fern-
holz, Collateral Damage: A Guide to Criminal Appellate, Postcon-
viction, and Habeas Corpus Litigation in Wisconsin, 98 MARQ. L.
REV. 1351, 1355–57 (2015) (discussing Escalona-Naranjo’s
10 No. 21-1268
analysis of § 974.06). In other words, “a defendant must raise
all available claims for relief, including Strickland claims, at
the earliest opportunity,” or else such claims are procedurally
defaulted. Garcia, 28 F.4th at 772 (citing Escalona-Naranjo, 517
N.W.2d at 162). But procedural default may be excused if the
defendant can show a “sufficient reason” for not raising the
issue earlier. Escalona-Naranjo, 517 N.W.2d at 162 (quoting
WIS. STAT. § 974.06(4)). This court has held that Escalona-Na-
ranjo’s bar constitutes an adequate and independent state pro-
cedural ground, which forecloses federal review. Garcia, 28
F.4th at 767; Perry v. McCaughtry, 308 F.3d 682, 690, 692 (7th
Cir. 2002).
With this framework in mind, we ask whether Whyte’s
present claims were barred by the Wisconsin Court of Ap-
peals on adequate and independent procedural grounds. If
so, we must assess whether Whyte has shown “cause” for and
“prejudice” from the default. Without such a showing, federal
habeas review is precluded.
On the first question, it is undisputed that Whyte failed to
challenge the stun belt or the effectiveness of his trial counsel,
either on direct appeal or in a § 974.02 motion. His only argu-
ment on direct appeal alleged that admitting Weiland’s state-
ments violated the Confrontation Clause, a claim Whyte
abandoned in the district court. Not until Whyte’s motion for
postconviction relief under § 974.06(4) did he dispute the re-
quirement that he wear a stun belt at trial and raise the related
claim of ineffective assistance of counsel. For this reason, the
Wisconsin Court of Appeals ruled that “the claims raised in
Whyte’s WIS. STAT. § 974.06 motion, and repeated in his mo-
tion for sentence modification, are barred by WIS. STAT.
§ 974.06(4) and State v. Escalona-Naranjo.”
No. 21-1268 11
Nevertheless, Whyte attempts to show “cause” for and
“prejudice” from this procedural default by arguing his post-
conviction counsel was constitutionally defective for failing to
raise the stun belt and ineffective assistance claims. As the
Supreme Court has held, “ineffective assistance adequate to
establish cause for the procedural default of some other con-
stitutional claim is itself an independent constitutional claim,”
which “require[s] that constitutional claim, like others, to be
first raised in state court.” Edwards v. Carpenter, 529 U.S. 446,
451–52 (2000). “In other words, the claim of ineffective assis-
tance must be raised in state court before it can suffice on fed-
eral habeas relief as ‘cause’ to excuse the default of another
claim (even if that other claim is also ineffective assistance of
counsel).” Dellinger v. Bowen, 301 F.3d 758, 766 (7th Cir. 2002).
“If the second claim of ineffective assistance of counsel is itself
defaulted, the petitioner will be fully defaulted.” Id.; see Gar-
cia, 28 F.4th at 775 n.3. Thus, deficient performance by
Whyte’s postconviction counsel can serve as a basis to avoid
procedural default only if that claim is itself not defaulted.
Whyte did raise the ineffective assistance of postconvic-
tion counsel issue in his § 974.06 motion. He argued that his
postconviction counsel’s failure to assert claims as to the stun
belt and the ineffectiveness of trial counsel were a “sufficient
reason” under Escalona-Naranjo to excuse defaulting on those
claims. But the state appellate court held that state procedural
rules barred Whyte’s claim of ineffective assistance of post-
conviction counsel. To understand the state court’s reasoning,
an explanation of Wisconsin’s pleading standards is useful.
The Supreme Court of Wisconsin has ruled that “ineffec-
tiveness of postconviction counsel may be a sufficient reason
for failing to raise an available claim in an earlier motion or
12 No. 21-1268
on direct appeal.” State v. Romero-Georgana, 849 N.W.2d 668,
678 (Wis. 2014). But in State v. Allen, the Court emphasized
that “a postconviction motion for relief requires more than
conclusory allegations.” 682 N.W.2d at 439. Rather, it must
provide “sufficient material facts—e.g., who, what, where,
when, why, and how—that, if true, would entitle [the defend-
ant] to the relief he seeks.” Id. at 446. This procedural require-
ment allows reviewing courts to “meaningfully assess [the
defendant’s] claim.” Id. at 441 (quoting State v. Bentley, 548
N.W.2d 50, 55 (Wis. 1996)). In contrast, “[t]he mere assertion
of a claim of manifest injustice, in this case the ineffective as-
sistance of counsel, does not entitle a defendant to the grant-
ing of relief.” Id. at 439 (quoting State v. Washington, 500
N.W.2d 331, 335 (Wis. Ct. App. 1993)). When a postconviction
motion lacks such material facts, the trial court may deny the
motion without an evidentiary hearing. Id. at 446. As a result,
“if the defendant fails to allege why and how his postconvic-
tion counsel was constitutionally ineffective—that is, if the de-
fendant asserts a mere conclusory allegation that his counsel
was ineffective—his ‘reason’ is not sufficient” to avoid Esca-
lona–Naranjo’s procedural default. Romero-Georgana, 849
N.W.2d at 678; see Garcia, 28 F.4th at 773. Allen’s pleading
standard is an adequate and independent state procedural
rule. Triplett, 996 F.3d at 830; Lee v. Foster, 750 F.3d 687, 693–94
(7th Cir. 2014); see also Garcia, 28 F.4th at 767 (stating “Romero-
Georgana’s pleading standard” is an “independent and ade-
quate state procedural ground[]”).
The Wisconsin Court of Appeals held that Whyte’s claim
of ineffective assistance of postconviction counsel did not con-
stitute a “sufficient reason” to excuse the procedural default
under Escalona-Naranjo because Whyte failed to comply with
Allen’s pleading standard. For that court, “Whyte … was
No. 21-1268 13
required to show both deficient performance and prejudice
within his WIS. STAT. § 974.06 motion.” But in his pleadings
before the state trial court on postconviction under § 974.06,
Whyte merely declared: “At a hearing, the defendant will es-
tablish that post-conviction counsel’s deficient performance
prejudiced him.” The state appellate court decided that
Whyte in his pleading “fail[ed] to establish prejudice,” citing
Allen for the proposition that “[m]otions containing only con-
clusory and legally insufficient allegations that postconvic-
tion counsel was ineffective are insufficient to circumvent Es-
calona-Naranjo’s procedural bar.”
Before us, Whyte raises several arguments to avoid proce-
dural default under Allen. First, he contends the State waived
any argument that his claim of ineffective assistance of post-
conviction counsel was procedurally defaulted when the State
failed to raise the issue in its answer opposing Whyte’s federal
habeas petition. Whyte cites Lewis v. Sternes, which states, “a
petitioner’s procedural default … is an affirmative defense …
that the State can waive.” 390 F.3d 1019, 1029 (7th Cir. 2004).
Lewis continues: “One might infer that the State has implicitly
waived a procedural default defense when it has asserted that
defense as to some of the petitioner’s claims but not as to the
particular claim in question.” Id. While the State in its answer
raised this defense as to Whyte’s stun belt and ineffective as-
sistance of trial counsel claims, it did not raise that defense for
the ineffective assistance of postconviction counsel claim.
As an initial matter, Whyte does not argue the district
court erred in addressing procedural default under Allen.
Had Whyte done so, he might have attempted to show preju-
dice arising from the State belatedly raising the issue. Instead,
14 No. 21-1268
Whyte asserts only that the State waived any defense of pro-
cedural default under Allen.
Yet Whyte has not shown waiver. “Some of our opinions
use the terms waiver and forfeiture interchangeably, but …
we need to pay attention to the difference.” Reed v. Columbia
St. Mary's Hosp., 915 F.3d 473, 478 (7th Cir. 2019). “A defend-
ant’s failure to plead an affirmative defense may result in a
waiver of the defense if the defendant has relinquished it
knowingly and intelligently, or forfeiture if the defendant
merely failed to preserve the defense by pleading it.” Id.Whyte does not show, and the record does not reveal, that the
State knowingly and intelligently relinquished the right to as-
sert procedural default with respect to Whyte’s claim of inef-
fective assistance of postconviction counsel. At most, Whyte’s
argument suggests the State forfeited this defense.
But even forfeiture did not occur here. “We will generally
find that the failure to plead an affirmative defense in the an-
swer works a forfeiture ‘only if the plaintiff is harmed by the
defendant’s delay in asserting it.’” Id. (quoting Garofalo v. Vil-
lage of Hazel Crest, 754 F.3d 428, 436 (7th Cir. 2014)); see Curtis
v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005) (“[W]e have held
that a delay in asserting an affirmative defense waives the de-
fense only if the plaintiff was harmed as a result.”). As ex-
plained in Reed, the purpose of requiring parties to plead af-
firmative defenses “is to avoid surprise and undue prejudice
to the plaintiff by providing her notice and the opportunity to
demonstrate why the defense should not prevail.” 915 F.3d at
478 (quoting Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir.
1997)). “A defendant should not be permitted to ‘lie behind a
log’ and ambush a plaintiff with an unexpected defense.” Id.(quoting Venters, 123 F.3d at 968).
No. 21-1268 15
Here, there was no ambush. Since the Wisconsin Court of
Appeals ruled on Whyte’s postconviction motion, he was
aware that his claim for ineffective assistance of postconvic-
tion counsel was subject to default under Allen’s procedural
bar. The district court also cited the State’s brief opposing
Whyte’s habeas petition, finding that the State had raised pro-
cedural default as a response to Whyte’s claim of ineffective
assistance of postconviction counsel. Whyte fails to address
this point before us. See Garofalo, 754 F.3d at 436–37 (7th Cir.
2014) (holding that district court did not abuse its discretion
by allowing the defendant to raise an affirmative defense in
briefing). Whyte was thus on notice of Allen’s procedural bar
and its effect on his claims before the district court, where he
had an opportunity to address the issue. Whyte has not
shown that he is harmed by the State’s failure to plead the
affirmative defense in its answer, and his ability to raise nu-
merous responses to the forfeiture issue on appeal indicates
he is not. See Reed, 915 F.3d at 479.
Second, Whyte argues the state appellate court resolved
his ineffective assistance of postconviction counsel claim on
the merits, not on an adequate and independent state proce-
dural ground. He points to a footnote in that court’s decision
in which the court stated it would “address Whyte’s claims
on their merits.” After the court concluded that “Whyte’s
challenge to the effectiveness of his trial counsel fails” under
Strickland, it also reasoned that “Whyte’s derivative challenge
to the effectiveness of his postconviction counsel likewise
fails,” which Whyte characterizes as a ruling on the merits.
Notwithstanding any footnoted comments or Strickland
analysis, the state appellate court disposed of Whyte’s claim
of ineffective assistance of postconviction counsel on
16 No. 21-1268
procedural grounds. The first sentence of the court’s discus-
sion states: “We conclude that the claims raised in Whyte’s
WIS. STAT. § 974.06 motion, and repeated in his motion for sen-
tence modification, are barred by WIS. STAT. § 974.06(4) and
State v. Escalona-Naranjo.” The court then acknowledged
Whyte’s assertion that his “ineffective assistance of his post-
conviction/appellate counsel” was “a sufficient reason for fail-
ing to properly raise his claims on direct appeal.” When the
state appellate court discussed the merits of this argument, it
stated Whyte’s postconviction motion “was required to show
both deficient performance and prejudice,” but Whyte
“fail[ed] to establish prejudice” because his pleadings were
“conclusory and legally insufficient” under Allen. Even if the
court also rejected Whyte’s claim as meritless, our review is
foreclosed when adequate and independent state law
grounds are sufficient to resolve the dispute. Harris v. Reed,
489 U.S. 255, 264 n.10 (1989) (“Moreover, a state court need
not fear reaching the merits of a federal claim in an alternative
holding. By its very definition, the adequate and independent
state ground doctrine requires the federal court to honor a
state holding that is a sufficient basis for the state court’s judg-
ment, even when the state court also relies on federal law.”).
Whyte responds that the state appellate court’s invocation
of Allen does not demonstrate that it actually relied on the
pleading standard as a ground for its decision. He notes cor-
rectly that the court’s second citation to Allen mistakenly in-
cludes paragraph numbers that do not exist. 5 Whyte also ar-
gues the court’s recitation of Allen’s pleading requirements
does not show the court applied Allen to the facts at hand.
5 The state appellate court cites “Allen, 274 Wis. 2d 568, ¶¶ 84-87,” but
Allen contains only thirty-six paragraphs.
No. 21-1268 17
Whyte compares this case to Sanders v. Cotton, 398 F.3d 572(7th Cir. 2005), in which this court held that a state court’s rec-
itation of a procedural rule was insufficient to show that the
court relied on that rule in reaching its decision because the
court “immediately proceeded to address and decide the mer-
its” without adding “a conclusion such as ‘and Sanders’
claims are waived under that standard.’” Id. at 579.
These arguments are unconvincing. An error in number-
ing paragraphs does not expunge the Wisconsin Court of Ap-
peals’ reliance on Allen or its analysis of this procedural rule.
Sanders is also distinguishable from this case, as here the state
appellate court concluded that, in his pleading, Whyte
“fail[ed] to establish prejudice.” This was followed by an ex-
planation of Allen’s procedural requirement that a petitioner
plead cause and prejudice in a legally sufficient and noncon-
clusory manner. That the conclusion of procedural default
preceded rather than proceeded from an explanation of Allen
is of no consequence.
Third, Whyte argues that even if the state appellate court
relied on Allen, the pleading requirement does not constitute
an independent state ground in this case. In his words, “[b]y
holding that Mr. Whyte had failed to show prejudice within
the four corners of his 974.06 motion, the Wisconsin Court of
Appeals necessarily considered the substantive standards
governing the prejudice prong of Strickland.” Put another
way, because that court had to examine the substance of a
Strickland claim to know if it was sufficiently pleaded, Whyte
maintains the court’s Allen analysis is not independent from
federal law.
Whyte misunderstands what constitutes an independent
state ground. A state ground “is independent of federal law if
18 No. 21-1268
it does not depend on the merits of the petitioner’s claim.” Tri-
plett, 996 F.3d at 829 (emphasis added). Whyte effectively
transforms this test, asking us to find that a state ground is
independent only if it does not depend on the substance of a
petitioner’s claim. That is not the test. Indeed, under Whyte’s
theory, it is difficult to imagine any scenario in which Allen
would constitute an independent state ground because a Wis-
consin court must always examine the substance of the under-
lying claim to determine whether it is sufficiently pleaded.
Our court has consistently held that Allen constitutes an ade-
quate and independent state law ground, even when it is ap-
plied to federal claims regarding ineffective assistance of
counsel. See, e.g., Triplett, 996 F.3d at 830; Lee, 750 F.3d at 693–
94; see also Garcia, 28 F.4th at 767. 6
Whyte did not raise his stun belt and related ineffective
assistance of trial counsel claims on direct appeal in state
court. So, the Wisconsin Court of Appeals ruled that Escalona-
Naranjo barred those claims, as well as that Whyte failed to
show a “sufficient reason” to avoid procedural default be-
cause his § 974.06 motion claiming ineffective assistance of
postconviction counsel was inadequate under Allen’s plead-
ing standard.
Unless Whyte can show “cause” and “prejudice” for his
default under Allen, our review is at an end. “Cause requires
a showing of ‘some type of external impediment’ that
6 Whyte cites two district court opinions to support his argument: Sin-
gleton v. Mahoney, No. 17-CV-898-WMC, 2021 WL 848760, at *10 (W.D.
Wis. Mar. 5, 2021), and Walker v. Pollard, No. 18-C-0147, 2019 WL 136694,
at *6 (E.D. Wis. Jan. 8, 2019). But Walker and Mahoney predate our decision
in Triplett, where we determined that Allen is an adequate and independ-
ent state procedural rule. 996 F.3d at 830.
No. 21-1268 19
prevented [Whyte] from presenting his claims.” Garcia, 28
F.4th at 775 (quoting Thompkins v. Pfister, 698 F.3d 976, 987 (7th
Cir. 2012)). Whyte offers no external impediment that pre-
vented him from complying with Allen. Nor can he blame
counsel for his default, as Whyte filed his pro se postconvic-
tion motion, and “errors by counsel … cannot serve as cause
to excuse [Whyte’s] own default.” Id. Whyte has failed to es-
tablish cause for his procedural default, and he has not at-
tempted to show prejudice, so we need not reach that ques-
tion.
Under this reasoning, we AFFIRM the judgment of the dis-
trict court.