Joseph Wilborn v. Alex Jones ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1507
JOSEPH WILBORN,
Petitioner-Appellant,
v.
ALEX JONES, Acting Warden,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 14 C 05469 — John Robert Blakey, Judge.
ARGUED DECEMBER 2, 2019 — DECIDED JULY 6, 2020
Before SYKES, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
BAUER, Circuit Judge. An Illinois jury convicted Joseph
Wilborn for the murder of a rival gang member in Chicago. In
opening statements, Wilborn’s defense attorney told the jury
it would hear from his codefendant, Cedrick Jenkins, identify-
ing him as the actual shooter. During the trial, Jenkins indi-
2 No. 18-1507
cated his testimony would no longer be favorable to Wilborn.
Defense counsel, with Wilborn’s approval, did not call Jenkins
to the stand. Wilborn filed for habeas corpus relief, alleging
ineffective assistance of counsel. The district court denied his
petition and he appealed. We consider whether trial counsel
performed deficiently and caused cognizable prejudice when
he told the jury in opening statements that Wilborn’s co-
defendant would testify but then declined to call Jenkins as a
witness. For the following reasons, we affirm.
I. BACKGROUND
On July 28, 2004, Emmit Hill (“the victim”) followed rival
gang members Wilborn and Jenkins into a gangway near 63rd
Street between Wabash and Michigan Avenues, in Chicago,
Illinois. Witnesses heard multiple gunshots and found the
victim murdered.
Police located and arrested Wilborn and Jenkins. A jury
found Wilborn guilty of first-degree murder and he was
sentenced to 30 years, plus 25 years for personally discharging
a firearm. Wilborn appealed and the Illinois Appellate Court
affirmed the conviction. The Illinois Supreme Court granted
and then ultimately denied Wilborn’s petition for leave to
appeal.
Wilborn then filed a petition with the United States District
Court for the Northern District of Illinois. He claimed that trial
counsel’s promises during opening arguments amounted to
ineffective assistance of counsel. Trial counsel indicated
multiple times that Jenkins would testify to shooting the
victim. However, as the trial progressed, Jenkins changed his
proposed testimony and defense counsel determined Jenkins
No. 18-1507 3
would no longer be credible. Wilborn agreed with this recom-
mendation on the record.
II. DISCUSSION
We review the district court’s decision to deny a habeas
corpus petition for ineffective assistance of counsel under the
de novo standard. Taylor v. Bradley, 448 F.3d 942, 948 (7th
Cir. 2006). The federal courts as a whole engage in “doubly
deferential” review of ineffective assistance claims when
§ 2254(d) applies, as it does here. See Knowles v. Mirzayance,
556 U.S. 111, 123 (2009). “By its terms § 2254(d) bars relitigation
of any claim ‘adjudicated on the merits’ in state court,
subject only to the exceptions in §§ 2254(d)(1) and (2).”
Harrington v. Richter, 562 U.S. 86, 98 (2011).
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was adjudi-
cated on the merits in State court proceedings unless the
adjudication of the claim (1) resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). In other words, Wilborn must show either clearly
established Supreme Court precedent or an unreasonable
application in the State court proceeding.
“The Sixth Amendment recognizes the right to the assis-
tance of counsel because it envisions counsel’s playing a role
that is critical to the ability of the adversarial system to
4 No. 18-1507
produce just results.” Strickland v. Washington, 466 U.S. 668,
685 (1984). In order to prevail in an ineffective assistance of
counsel claim, “defendant must show that counsel’s perfor-
mance was deficient” and “that the deficient performance
prejudiced the defense.” Id. at 687.
Wilborn is relying on § 2254(d)(1) as well as (d)(2). The only
Supreme Court decision Wilborn relies on is Strickland, arguing
that when counsel refers to someone during opening state-
ments, that person must then be called. Yet this has not
stopped Wilborn from making a “contrary to” argument under
§ 2254(d)(1). The problem is that this relies only on our Court,
particularly Hampton v. Leibach, 347 F.3d 219, 257 (7th Cir.
2003). Although we think highly of our own decisions, we are
not the Supreme Court. See also Kernan v. Cuera, 138 S. Ct. 4(2017) (summarily reversing a court of appeals for relying on
circuit precedent).
Wilborn’s representation did not contain serious errors
amounting to deprivation of a fair trial. Indeed, unforeseen
situations may arise during trial. During opening statements,
counsel reasonably believed that Jenkins would testify to
shooting the victim, exculpating Wilborn. While Jenkins
originally indicated his testimony would be favorable to
Wilborn, Jenkins later changed his story multiple times.
Counsel determined Jenkins’ testimony to be unreliable and
consulted with Wilborn. Wilborn agreed on the record that it
was best not to call Jenkins.
Counsel’s failure to present Jenkins to the jury or present
testimonial evidence does not rise to the level of prejudice
under Strickland. Promising the jury it will hear testimony that
No. 18-1507 5
Wilborn did not participate in the crime does not necessarily
create prejudice. The record reflects that Jenkins’ testimony
wavered multiple times and could have been more of a
hindrance to Wilborn. Furthermore, counsel discussed
the issue with Wilborn and made a record of the issue in open
court, where Wilborn agreed with the decision. Therefore,
according to Strickland, Wilborn failed to show counsel’s
performance was deficient or how it deprived him of a fair
trial.
We next consider whether the State court’s decision
resulted from reasonably applied facts in light of the evidence
presented. Here, Wilborn fails the Strickland requirements for
demonstrating prejudice. He fails to “present both the opera-
tive facts and the legal principles that control the claim in a
manner that would sufficiently alert the state court to the
issue.” McGhee v. Watson, 900 F.3d 849, 854 (7th Cir. 2018).
The state appellate court concluded that Wilborn could not
demonstrate ineffective assistance of counsel on the merits.
Wilborn has not presented sufficient facts or legal principles to
show his counsel’s performance fell below the objective
standard of reasonableness. We find the Illinois state court’s
application was reasonable.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the denial of
Wilborn’s habeas corpus relief.