Cesar O. Garcia v. Dan Cromwell ( 2022 )

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 19-2771
CESAR O. GARCIA,
Petitioner-Appellant,
v.
DAN CROMWELL, Warden, *
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 17-C-693 — William C. Griesbach, Judge.
____________________
SUBMITTED SEPTEMBER 23, 2020 — DECIDED MARCH 11, 2022
____________________
Before SYKES, Chief Judge, and HAMILTON and ST. EVE,
Circuit Judges.
SYKES, Chief Judge. A Kenosha County jury convicted
Cesar Garcia of three counts of attempted homicide, three
counts of recklessly endangering safety, and one count of
aggravated battery for his conduct in a drive-by shooting
* We substituted Warden Dan Cromwell for Randall Hepp as the appel-
lee in this matter. FED. R. APP. P. 43(c).
2 No. 19-2771
that left one of his three victims seriously injured. Garcia’s
postconviction counsel moved for a new trial claiming that
trial counsel’s failure to request jury instructions on lesser-
included offenses amounted to ineffective assistance of
counsel. The trial judge denied the motion, and Garcia filed
a consolidated appeal of the judgment and the postconvic-
tion order as required by Wisconsin’s procedural rules. See
WIS. STAT. § 809.30(2).
In the meantime, the state moved to dismiss the reckless-
endangerment counts, acknowledging that they were lesser-
included offenses of the attempted-homicide counts. The
judge granted the motion and modified the judgment, and
the court of appeals affirmed the judgment as modified.
Garcia then returned to the trial court with a pro se post-
conviction motion under section 974.06 of the Wisconsin
Statutes raising two new claims of ineffective assistance of
trial counsel. That was procedurally problematic. Under
Wisconsin’s postconviction rules, Garcia had to raise all
available claims for relief in his first postconviction motion
or on direct appeal. State v. Escalona-Naranjo, 517 N.W.2d
157, 162–63 (Wis. 1994). Section 974.06(4) bars successive
postconviction motions unless the defendant can demon-
strate a “sufficient reason” for failing to raise the claim
earlier. Id.In an appropriate case, ineffective assistance of postcon-
viction counsel may qualify as a sufficient reason to excuse a
procedural default. State v. Romero-Georgana, 849 N.W.2d
668, 678 (Wis. 2014). But this gateway to merits review of a
defaulted claim carries a heightened pleading burden:
Garcia needed to allege specific facts that, if true, would
establish his postconviction counsel’s ineffectiveness. Id. One
No. 19-2771 3
element of this pleading burden requires factual allegations
showing that the defaulted claims were “clearly stronger”
than the issues postconviction counsel chose to present. Id. at
679. The trial judge denied Garcia’s section 974.06 motion,
and the court of appeals affirmed, citing Escalona-Naranjo
and Romero-Georgana.
Garcia then petitioned for federal habeas relief under
28 U.S.C. § 2254, raising the two defaulted claims of ineffec-
tive assistance of counsel. The state opposed the petition on
the merits but also lodged a procedural objection, arguing
that federal review is barred because the state court’s deci-
sion rested on an independent and adequate state-law
ground—namely, procedural default under Escalona-Naranjo
and Romero-Georgana. The district judge rejected that objec-
tion but credited the state’s alternative argument that even if
trial counsel’s performance was deficient as Garcia claimed,
the mistakes were not prejudicial. The judge dismissed the
petition on that basis.
We affirm on different grounds. The state appellate court
rejected Garcia’s second postconviction motion based on the
Escalona-Naranjo bar and Garcia’s failure to satisfy Romero-
Georgana’s pleading standard for overcoming procedural
default. Those are independent and adequate state proce-
dural grounds, so federal review is barred unless Garcia can
establish cause for and prejudice from his default. He has
not done so.
I. Background
A. The Shooting
The drive-by shooting at the center of Garcia’s case was
the culmination of his months-long effort to intimidate his
former girlfriend Hilda Garcia-Rojas. Before she broke up
4 No. 19-2771
with him, Garcia told Hilda that if she ever left him for
someone else, he would kill her and her new boyfriend.
When she ended their relationship and moved in with Luis
Perez-Huitron, Garcia began stalking her. He followed her
home from work and parked down the street from the house
where she lived with Luis.
On the evening of April 16, 2008, Luis drove Hilda to her
third-shift factory job in Kenosha. After dropping her off at
about 10 p.m., Luis noticed Garcia’s car—a beige Mazda—
parked outside the factory. As Luis drove home, he saw that
Garcia was following him. Because of Garcia’s threats
against Hilda and previous stalking behavior, Luis called his
brother Arturo, explained the situation, and asked Arturo to
meet him at his house. Arturo agreed, arriving at Luis’s
house shortly after 10 p.m. with Luis’s brother-in-law Carlos
Bautista-Ibenez close behind him. The three men stood
outside the house next to Luis’s car.
Garcia parked his car down the block and gestured to-
ward Luis with his cell phone. He then called Luis at
10:24 p.m. Luis took the call and the two briefly argued.
Garcia ended the call at 10:27 p.m. and slowly drove toward
the trio. As he passed, he pulled out a gun and started
shooting at them. He missed Luis and Arturo, but one of his
shots struck Carlos in the upper chest.
Luis and Arturo rushed Carlos to the hospital. While on
the way, they called 911 to report the crime. Thanks to rapid
medical attention, Carlos survived. Doctors removed the
bullet from his chest.
Kenosha police officers responded to Luis’s house within
minutes. They secured the scene and quickly learned that
Garcia lived with his mother in nearby Racine. Officers from
No. 19-2771 5
the Racine Police Department drove by the home, but the
beige Mazda wasn’t there. They maintained surveillance and
shortly after midnight reported that the beige Mazda was
now parked outside the home. Some 25 officers from both
departments—including a full SWAT team—responded to
the home, and a lengthy standoff ensued. Officers surround-
ed the house and through a loudspeaker repeatedly ordered
the occupants to come outside.
Garcia’s mother held out for some time but eventually
complied. She initially denied that Garcia was there, but
within a few minutes she admitted that he was hiding in the
attic. Garcia continued to refuse the officers’ commands to
come out, even after they fired tear gas into the house.
About five hours into the standoff, officers entered the
house and took Garcia into custody. They then searched the
home inside and out and found a .22-caliber revolver hidden
under the back porch. In the basement they found a large
number of .22-caliber spent cartridges and a wooden board
riddled with bullet holes. A firearms examiner later deter-
mined that the bullet recovered from Carlos’s chest was fired
from the gun that was found under the porch, as were
several bullets recovered from Luis’s car at the scene. The
markings on the spent cartridges in the basement also
matched the gun. Finally, the police found Garcia’s cell
phone in the Mazda and confirmed that he had placed a call
to Luis’s phone number at 10:24 p.m.
Under further questioning by the police, Garcia’s mother
said that Garcia arrived home shortly before midnight that
evening, woke her up, and anxiously told her that he had
done something bad that night. She also stated that when the
officers ordered them to come out of the house, Garcia told
6 No. 19-2771
her to lie and say he was not home. She recanted these
statements at trial, but they were admitted into evidence
through an officer’s testimony.
B. Trial
Garcia was charged with three counts of attempted first-
degree homicide, three counts of first-degree recklessly
endangering safety, and one count of aggravated battery. The
case proceeded to trial in late July 2010. The state elicited the
evidence we’ve just described, and Carlos and Luis identi-
fied Garcia as the shooter. (Arturo corroborated their ac-
count of the shooting but did not make an in-court
identification.)
Garcia’s defense was that that Luis, Arturo, and Carlos
staged the shooting in order to frame him. As support for
this theory, he relied largely on his own testimony. He told
the jury that he sold illegal (i.e., stolen) firearms and that
Carlos was one of his better customers. He said that some-
time before the shooting, Carlos purchased the .22-caliber
revolver from him—the very gun the police found hidden at
Garcia’s home, which matched the bullet that was removed
from Carlos’s chest. To explain the matching bullet cartridges
in his basement, Garcia testified that he test-fired the gun to
show Carlos how it worked before selling it to him. In
closing argument Garcia’s attorney summed up the defense
theory this way: Carlos “somehow got himself shot” with his
own gun, and then while Luis and Arturo were driving him
to the hospital, he instructed Luis to plant the gun at Garcia’s
house so he wouldn’t get caught with a stolen firearm.
To explain the hours-long standoff with police, Garcia
testified that he hid in the attic to avoid being arrested on an
outstanding warrant for a missed court date a month before
No. 19-2771 7
the shooting on a charge of unlawfully possessing a different
.22-caliber handgun. This testimony opened the door to
cross-examination about the circumstances of that arrest.
Under questioning from the prosecutor, Garcia was forced to
admit that he had been arrested in his car while parked
outside a woman’s house in possession of binoculars, a ski
mask, rubber gloves, a loaded .22-caliber handgun, and
ammunition—incriminating items suggestive of stalking and
premeditated assault. He also acknowledged that when the
police questioned him about the gun, he told them—
falsely—that he had “just found” it. When the prosecutor
pressed him about that falsehood, Garcia confessed “I guess
I lied.”
In an effort to cast doubt on the identification testimony
from Luis and Carlos, Garcia’s attorney presented an expert
witness who testified that their accounts of the shooting
were inconsistent with some of the physical evidence at the
scene. But the expert’s analysis relied on questionable sup-
positions about the positions of the shooter, the three vic-
tims, and their vehicles. Finally, in closing argument Garcia’s
counsel insisted that Hilda was lying about Garcia’s threat-
ening behavior and also suggested that the police manufac-
tured the evidence of Garcia’s phone call to Luis at
10:24 p.m. on the night of the shooting.
The jury convicted Garcia on all counts. The judge im-
posed a sentence of 40 years in prison on the attempted
homicide counts, concurrent prison terms on the other
counts, and 20 years of extended supervision. 1
1 The judge structured the 40-year prison term as follows: 25 years on the
first count of attempted homicide; 15 years consecutive on the second;
8 No. 19-2771
C. State Postconviction Proceedings
Represented by new appointed counsel for postconvic-
tion proceedings and appeal, see § 809.30(2)(e), Garcia
moved for a new trial raising a claim under Strickland v.
Washington, 466 U.S. 668 (1984), that his trial attorney was
constitutionally ineffective for failing to request a jury
instruction on lesser-included offenses. The judge denied the
motion. As required by Wisconsin’s procedural rules, direct
appeal was delayed until the judge ruled on the postconvic-
tion motion, and then Garcia filed a single consolidated
appeal from the judgment and the postconviction order. See
§ 809.30(2)(h), (j).
While his appeal was pending, Garcia obtained leave to
reopen his postconviction motion, and the state conceded
that the reckless-endangerment counts were indeed lesser-
included offenses of the attempted-homicide counts. The
parties stipulated to the dismissal of those counts, and the
judge modified the judgment accordingly. In October 2014
the Wisconsin Court of Appeals affirmed the modified
judgment and rejected Garcia’s claim that his trial counsel
was ineffective. The Wisconsin Supreme Court denied
review.
In December 2015 Garcia returned to the trial court with
a pro se postconviction motion under section 974.06 raising
two new claims of ineffective assistance of trial counsel. He
claimed that his attorney should not have elicited the testi-
mony about his missed court date and arrest the month
before the shooting because it opened the door to damaging
and 15 years on the third, consecutive to the 25-year term on the first but
concurrent to the 15-year term on the second.
No. 19-2771 9
cross-examination about the details of that arrest. He also
claimed that his attorney should have objected to statements
during the prosecutor’s closing argument emphasizing those
details and other statements vouching for the credibility of
the state’s witnesses. To explain why he did not bring these
claims in his first postconviction motion, Garcia blamed it on
ineffective assistance by his postconviction counsel.
The trial judge denied the pro se motion without an evi-
dentiary hearing. Garcia appealed, and in January 2017 the
Wisconsin Court of Appeals summarily affirmed in a brief
order. The appellate court explained that the new claims
were procedurally barred under Escalona-Naranjo because
Garcia failed to raise them in his first postconviction motion
and failed to adequately plead a sufficient reason for the
default. In particular, the court observed that Garcia “fail[ed]
to demonstrate how and why these [new] claims are ‘clearly
stronger’ than the issues postconviction counsel … pre-
sent[ed]” in the first motion. State v. Garcia, No. 2016AP381,
2017 WL 218298, at *2 (quoting Romero-Georgana, 849 N.W.2d
at 679). The Wisconsin Supreme Court denied review in
April 2017.
D. Federal Habeas Petition
A few months later, Garcia filed a pro se petition for ha-
beas relief under § 2254 raising the same Strickland claims
that the state courts had dismissed as barred under Escalona-
Naranjo and Romero-Georgana. 2 Garcia later retained an
2 Garcia also brought a Strickland claim based on the double-jeopardy
defect he raised in his first postconviction motion stemming from trial
counsel’s failure to request jury instructions on lesser-included offenses.
The district judge dismissed that claim at screening and rejected Garcia’s
10 No. 19-2771
attorney, and counsel filed an amended petition but did not
materially alter the nature of the claims.
The state responded with a procedural objection, noting
that Escalona-Naranjo and Romero-Georgana—the cases on
which the state appellate court rested its decision—are
independent and adequate state rules of procedural default,
so Garcia had to demonstrate cause for and prejudice from
the default and could not do so. Alternatively, the state
urged the court to reject Garcia’s claims on the merits.
The district judge agreed that the Escalona-Naranjo bar
was an independent and adequate state rule, but he nonethe-
less held that Garcia had not procedurally defaulted his
federal claims. The judge reasoned that the pleading re-
quirement announced in Romero-Georgana was not clearly
established under Wisconsin law and, in any event, was too
enmeshed with the merits of the Strickland ineffectiveness
inquiry to be considered an independent state procedural
rule.
Moving to plenary review of the merits of Garcia’s
claims, the judge ruled that trial counsel “arguably” had
strategic reasons to elicit Garcia’s testimony about his missed
court date and prior arrest and to refrain from objecting to at
least some of the prosecutor’s statements in closing argu-
ment. But he found deficiencies of a constitutional dimen-
sion in other aspects of trial counsel’s performance—
specifically, counsel’s failure to object to the prosecutor’s
inquiry into the specific details of the prior arrest and the
prosecutor’s closing argument “portray[ing] Garcia as a
later attempt to revive it. Garcia does not challenge that decision on
appeal.
No. 19-2771 11
predatory criminal stalking a woman and planning an
unrelated crime.” The judge held, however, that counsel’s
failure to object was not prejudicial given the overwhelming
evidence of Garcia’s guilt and his implausible defense strate-
gy, which was premised on a “concocted” story that “made
no sense.” The judge accordingly denied the petition and
declined to grant a certificate of appealability.
Garcia then asked this court for a certificate of appeala-
bility on his two Strickland claims. See 28 U.S.C. § 2253(c). A
motions judge granted that request and also ordered the
parties to address the issue of procedural default.
II. Discussion
We begin as we must with procedural default. “Merits
review of a habeas claim is foreclosed if the relevant state
court’s disposition 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).
When a state court rejects a prisoner’s challenge to his
conviction on an independent and adequate state-law
ground, “principles of comity and federalism dictate against
upending the state-court conviction” and the federal claim is
deemed procedurally defaulted. Thomas v. Williams, 822 F.3d
378, 384 (7th Cir. 2016). Unless the petitioner can establish
“cause” for and “prejudice” from the default, “federal
habeas review is at an end.” Johnson v. Thurmer, 624 F.3d 786,
789 (7th Cir. 2010). We review questions of procedural
default de novo. Id.The analysis here requires some unpacking of the state
procedural regime for criminal appeals and postconviction
proceedings. As we’ve noted in prior cases, “the criminal
appeal process in Wisconsin is unusual” and characterized
12 No. 19-2771
by some “counterintuitive” complexity. Carter v. Buesgen,
10 F.4th 715, 717–18 (7th Cir. 2021); see also Morales v.
Boatwright, 580 F.3d 653, 656–57 (7th Cir. 2009); Huusko v.
Jenkins, 556 F.3d 633, 634–35 (7th Cir. 2009). The complexity
is largely attributable to the state’s decision to “combine[]
some aspects of direct and collateral review by allowing
post-judgment, but pre-appeal, motions to raise matters
outside the trial record.” Huusko, 556 F.3d at 634–35.
A. Postconviction Procedure in Wisconsin
After a conviction and sentencing in a Wisconsin criminal
case, “a defendant’s first avenue of relief is a postconviction
motion under § 974.02” of the Wisconsin Statutes. Page v.
Frank, 343 F.3d 901, 905 (7th Cir. 2003). In contrast to the
practice in many other jurisdictions, claims of ineffective
assistance of counsel may—and, as we shall see, usually
must—be raised at this postjudgment, preappeal stage of the
proceedings. Id.; see also Romero-Georgana, 849 N.W.2d at 677–
68; State v. Lo, 665 N.W.2d 756, 766 (Wis. 2003); Escalona-
Naranjo, 517 N.W.2d at 158–59.
We recently sketched the steps that precede a section
974.02 motion. Carter, 10 F.4th at 717–18. In brief, the defend-
ant must file a notice of intent to pursue postconviction relief
within 20 days of judgment; the clerk of court then notifies
the public defender’s office and forwards a copy of the
judgment and certain other records; and the public defend-
er’s office then orders transcripts and appoints counsel to
represent the defendant in postconviction proceedings and
on appeal. § 809.30(2)(b), (c), (e). Within 60 days, the clerk of
court sends a copy of the court record to postconviction
counsel, and the court reporter has the same 60-day window
to file and serve the transcripts (unless the deadline is ex-
No. 19-2771 13
tended). § 809.30(2)(g). A postconviction motion or notice of
appeal ordinarily must be filed within 60 days of receipt of
the court record or transcripts, whichever is later.
§ 809.30(2)(h). This deadline, too, can be extended. See Carter,
10 F.4th at 717–18 (discussing the systemic delays in
Wisconsin’s unique postconviction process).
Importantly, the defendant “shall file a motion for post-
conviction … relief before a notice of appeal is filed unless the
grounds for seeking relief are sufficiency of the evidence or
issues previously raised.” § 809.30(2)(h) (emphasis added);
see also WIS. STAT. § 974.02(2). The point of this requirement is
to give the trial court the opportunity to address all claims of
error and then to consolidate all claims for relief in a single
appeal. Accordingly, as a general matter, “the § 974.02
postconviction motion operates as a prerequisite to accessing
the state’s direct appeal process.” Carter, 10 F.4th at 718; see
also Page, 343 F.3d at 906.
Later on in the process, “[a]fter the time for appeal or
postconviction remedy provided in [section] 974.02 has
expired,” the defendant may proceed under section 974.06,
which permits a prisoner to move the sentencing court to
“vacate, set aside or correct the sentence” on “the ground
that the sentence was imposed in violation of the
U.S. [C]onstitution.” WIS. STAT. § 974.06(1). This is
Wisconsin’s equivalent to a motion for collateral relief under
28 U.S.C. § 2255. Lo, 665 N.W.2d at 760; Escalona-Naranjo,
517 N.W.2d at 160.
At first glance section 974.06 seems quite permissive. It
states that the motion “is a part of the original criminal
action” and “may be made at any time.” § 974.06(2). But
subsection (4) contains a critical restriction:
14 No. 19-2771
All grounds for relief available to a person un-
der this section must be raised in his or her
original, supplemental or amended motion.
Any ground finally adjudicated or not so
raised, or knowingly, voluntarily and intelli-
gently waived in the proceeding that resulted
in the conviction or sentence or in any other
proceeding the person has taken to secure re-
lief may not be the basis for a subsequent mo-
tion, unless the court finds a ground for relief
asserted which for sufficient reason was not as-
serted or was inadequately raised in the origi-
nal, supplemental or amended motion.
§ 974.06(4).
This bar on successive motions isn’t limited to successive
section 974.06 motions. The Wisconsin Supreme Court has
interpreted subsection (4) more broadly: a prisoner may not
raise in a section 974.06 motion a federal constitutional issue
that was raised or could have been raised in a postconviction
motion under section 974.02 or on direct appeal. Escalona-
Naranjo, 517 N.W.2d at 162. The upshot is that a defendant
must raise all available claims for relief, including Strickland
claims, at the earliest opportunity—that is, in a section
974.02 motion or on direct appeal. Id. at 162. Failure to do so
bars relief under section 974.06 unless the defendant can
establish a “sufficient reason” to excuse the default. Id. at
162–63.
Ineffective assistance of postconviction counsel can be a
“sufficient reason” to excuse a prisoner’s failure to bring a
claim earlier. State v. Allen, 786 N.W.2d 124, 139 (Wis. 2010).
But the mere suggestion that postconviction counsel was
No. 19-2771 15
ineffective does not by itself open the door to merits review
of a defaulted claim. Instead, a prisoner must provide specif-
ic, nonconclusory factual allegations explaining why his
postconviction counsel was ineffective. Id. at 139–40. If
ineffective assistance of postconviction counsel is adequately
pleaded, the trial court must then provide an evidentiary
hearing and “perform the necessary factfinding function and
directly rule on the sufficiency of the reason.” Id. at 139
(quotation marks omitted). In contrast, if a petitioner fails to
allege “specific facts that, if proved, would constitute a
sufficient reason,” the trial court will “summarily deny” the
section 974.06 motion without an evidentiary hearing. Id. at
140. That was the case in Allen, where the prisoner’s motion
was insufficient to overcome the Escalona-Naranjo bar be-
cause it failed to “allege any facts that, if proved, would
constitute deficient performance” by postconviction counsel
or “any facts that, if proved, would constitute prejudice.” Id.
at 139.
The Wisconsin Supreme Court’s decision in Romero-
Georgana builds on Allen and Escalona-Naranjo by elaborating
the pleading threshold necessary to justify holding an evi-
dentiary hearing on a prisoner’s claim that ineffective assis-
tance of postconviction counsel is a sufficient reason to
excuse his procedural default. The court held that “[t]o move
beyond the initial prerequisites of Wis. Stat. § 974.06(4) and
Escalona-Naranjo, and to adequately raise a claim for relief, a
defendant must allege sufficient material facts—e.g., who,
what, where, when, why, and how—that, if true, would
entitle [him] to the relief he seeks.” Romero-Georgana,
849 N.W.2d at 678 (quotation marks omitted). Echoing what
it said in Allen, the court explained that if a prisoner satisfies
this pleading standard, the trial court may hold an eviden-
16 No. 19-2771
tiary hearing and “directly rule on the sufficiency of the
reason.” Id. (quotation marks omitted). If, on the other hand,
the prisoner’s motion fails to satisfy this pleading threshold,
it must be denied. Id.
The “why” requirement is particularly relevant here. To
adequately allege that ineffective assistance of postconvic-
tion counsel qualifies as a “sufficient reason” to excuse a
procedural default, a prisoner must allege why the claims he
now wants to raise are “clearly stronger than the claims
actually raised.” Id. at 683. Then the trial court can compare
the new theories of trial counsel’s ineffectiveness relative to
those theories that postconviction counsel already pursued.
Id. at 679. Much like it did in Allen, the Wisconsin Supreme
Court concluded in Romero-Georgana that the trial court
correctly denied an evidentiary hearing because the prisoner
failed to allege how and why the claim that he wanted to
raise was clearly stronger than the claim that his postconvic-
tion counsel actually raised. Id. at 685–86.
To summarize, under section 974.06(4) and Escalona-
Naranjo, all available claims for postconviction relief must be
raised in a first postconviction motion under section 974.02
or on direct appeal. The statute preserves a narrow gateway
to merits review of a defaulted federal claim. To pass
through it, a prisoner must establish a “sufficient reason” for
not bringing the claim earlier. Ineffective assistance of
postconviction counsel may be a sufficient reason, but Allen
and Romero-Georgana establish an additional procedural
requirement—in the form of a special pleading burden—
when a prisoner’s section 974.06 motion raises ineffective
assistance of postconviction counsel as a reason to excuse his
procedural default.
No. 19-2771 17
B. Independent and Adequate State Ground
With the legal background in place, we can return to the
question whether the Wisconsin Court of Appeals “clearly
and expressly” relied on a state procedural bar that is both
“independent of the federal question and adequate to sup-
port the judgment.” Lee v. Foster, 750 F.3d 687, 693 (7th Cir.
2014) (quotation marks omitted). We conclude that it did.
“A state law ground is independent when the court actu-
ally relied on the procedural bar as an independent basis for
its disposition of the case.” Thompkins v. Pfister, 698 F.3d 976,
986 (7th Cir. 2012) (quoting Kaczmarek v. Rednour, 627 F.3d
586, 592 (7th Cir. 2010)). There’s no ambiguity here about the
basis of the state court’s decision: the Wisconsin Court of
Appeals unequivocally relied on the Escalona-Naranjo proce-
dural bar and Garcia’s failure to satisfy the Romero-Georgana
pleading requirement. Garcia does not argue otherwise. The
dispute centers on whether the rules announced in these two
decisions are truly independent of the merits.
The district judge acknowledged that the Escalona-
Naranjo bar is an independent procedural rule, but he sug-
gested that Romero-Georgana—and in particular, the “clearly
stronger” requirement—is really just a gloss on the Strickland
framework for claims of ineffective assistance of counsel.
This reflects a misunderstanding of Wisconsin’s postconvic-
tion procedures. The Romero-Georgana pleading requirement
implements the Escalona-Naranjo procedural regime.
Garcia proceeds under the same basic misunderstanding,
claiming that the Wisconsin Court of Appeals thought that
Romero-Georgana “somehow triggered” the Escalona-Naranjo
bar. That has it backward. The baseline under section
974.06(4) is that Garcia’s new claims for ineffective assistance
18 No. 19-2771
of trial counsel were procedurally barred under Escalona-
Naranjo because he did not raise them previously in his
section 974.02 motion. It was up to him, under Allen and
Romero-Georgana, to trigger the exception to the bar by first
satisfying the pleading burden to invoke ineffective assis-
tance of postconviction counsel as a sufficient reason to
excuse his default.
Garcia also argues that Romero-Georgana’s pleading
standard is too entangled with the merits of his federal
claims to be an independent basis for the state court’s deci-
sion. We rejected a similar argument in Triplett, an analogous
case that addressed Wisconsin’s procedural regime for
postconviction motions seeking to withdraw a guilty plea
based on ineffective assistance of counsel. 996 F.3d at 829–30.
In Triplett the Wisconsin Court of Appeals had affirmed the
denial of the defendant’s ineffectiveness claim because he
failed to satisfy the pleading requirement established in State
v. Bentley, 548 N.W.2d 50, 55 (Wis. 1996), for postconviction
plea-withdrawal motions based on ineffective assistance of
counsel. Triplett, 996 F.3d at 829–30. We concluded that the
federal claim was procedurally defaulted because the state
court of appeals “focused entirely on the adequacy of
Triplett’s pleading; nowhere is there a finding as to the
merits of his ineffectiveness claim.” Id. at 830.
The same is true here. Indeed, the Romero-Georgana
pleading rule rests in part on the pleading requirement
announced in Bentley. See Romero-Georgana, 849 N.W.2d at
678. Here, as in Triplett, the state court of appeals focused
entirely on Garcia’s failure to carry his pleading burden
under Romero-Georgana: the court summarily affirmed
Garcia’s claims as “procedurally barred,” citing Escalona-
No. 19-2771 19
Naranjo and Romero-Georgana, and never engaged in a merits
analysis of the defaulted Strickland claims.
The court’s reliance on Escalona-Naranjo and Romero-
Georgana was also “adequate” to support its judgment.
Adequacy in this context requires that the state-law ground
be “firmly established and regularly followed” and not
applied in a way that imposes “novel and unforeseeable
requirements without fair or substantial support in prior
state law” or “discriminate[s] against claims of federal
rights.” Clemons v. Pfister, 845 F.3d 816, 820 (7th Cir. 2017)
(quotation marks omitted) (alteration in original). We have
little difficulty concluding that Escalona-Naranjo and Romero-
Georgana are “firmly established and regularly followed”
rules of Wisconsin postconviction procedure. The bar on
successive postconviction motions is embedded in section
974.06(4) and is regularly followed by Wisconsin courts. See,
e.g., Perry v. McCaughtry, 308 F.3d 682, 690 (7th Cir. 2002).
And Allen and Romero-Georgana firmly establish what a
prisoner must do at the pleading stage to invoke ineffective
assistance of postconviction counsel as a reason to excuse a
procedural default.
C. Cause and Prejudice
Garcia’s default precludes federal habeas review of his
new Strickland claims unless he can establish cause for and
prejudice from the default. Thompkins, 698 F.3d at 986. Cause
requires a showing of “some type of external impediment”
that prevented him from presenting his claims. Id. at 987
(quotation marks omitted). Garcia has not identified any
external impediment that prevented him from satisfying the
Romero-Georgana pleading threshold necessary to obtain
relief from the Escalona-Naranjo bar. He simply repeats his
20 No. 19-2771
complaints about his postconviction counsel. But errors by
counsel in the first round of postconviction proceedings
cannot serve as cause to excuse Garcia’s own default in the
second. 3
Even if we assume for the sake of argument that Garcia
had identified a cause external to him to excuse his default,
he has not established prejudice. Looking through postcon-
viction counsel’s performance to the alleged errors of trial
counsel, we do not see any reasonable probability of a
different result had trial counsel avoided the subject of
Garcia’s prior arrest or objected to the parts of the prosecu-
tor’s closing argument that he now identifies as problematic.
On this point we agree with the district judge: the evi-
dence of Garcia’s guilt was overwhelming. Carlos and Luis
identified him as the shooter. Hilda testified about his
jealousy, stalking, and threats, which established a compel-
ling motive for the crimes. Uncontradicted physical evidence
corroborated the eyewitness identifications—most notably,
the forensic examiner’s testimony about the match between
the handgun found under Garcia’s porch, the bullet recov-
ered from Carlos’s chest, the bullets recovered from Luis’s
car at the scene, and the empty casings in Garcia’s basement.
Garcia’s cell phone confirmed that he made a call to Luis’s
phone moments before the shooting began. Finally, Garcia’s
3 A claim of ineffective assistance must be properly raised in state court
“before it can suffice on federal 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) (citing Edwards v. Carpenter, 529 U.S. 446, 452–54 (2000)). “If the
second claim of ineffective assistance of counsel is itself defaulted, the
petitioner will be fully defaulted.” Id.No. 19-2771 21
defense theory—that Carlos “somehow got himself shot”
with his own gun and then told Luis and Arturo to plant the
gun at Garcia’s house—was not remotely plausible.
Garcia offers no meaningful response to this mountain of
evidence against him. He focuses on the prejudicial effect of
the prior-arrest evidence and the prosecutor’s remarks in the
abstract and makes little effort to examine whether the
alleged errors by trial counsel were prejudicial on the specif-
ic facts of this case.
Because the state appellate court’s decision rests on an
independent and adequate state-law ground, Garcia’s
Strickland claims regarding his trial counsel’s performance
are defaulted. He has not established cause for and prejudice
from the default, so federal merits review of the claims is
foreclosed.
AFFIRMED