William Kerr v. Michael Thurmer, No. 09-1032 (7th Cir. 2011)
Annotate this CaseAfter arguing by phone, Graff, who was having an affair with Kerr's wife, went to Kerr's house. Neighbors called the police, but Kerr sent them away, claiming that Graff was a friend. Kerr subsequently shot and killed Graff. After Kerr exhausted Wisconsin state court appeals with respect to his conviction for first-degree intentional homicide, a federal trial court denied habeas corpus. The Seventh Circuit vacated and remanded after rejecting a claim that Kerr's attorneys provided ineffective assistance by not presenting a defense of adequate provocation. The state court had already rejected the argument, stating that there was no reasonable interpretation of the evidence that would lead to a conclusion that Kerr completely lost self-control. The attorneys did argue self-defense and reckless, rather than intentional, actions, and failure to present the provocation defense fell within the range of competent assistance. The court remanded for an evidentiary hearing on claims based on the attorneys' advice to forego a plea and go to trial. The state court's rejection of the claim was procedural, not on the merits, and Kerr presented some evidence that he had inaccurate information about sentencing.
The court issued a subsequent related opinion or order on May 30, 2012.
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