Garcia v. Cromwell, No. 19-2771 (7th Cir. 2022)
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Garcia was convicted of attempted homicide, recklessly endangering safety, and aggravated battery based on a drive-by shooting that left one victim seriously injured. Garcia’s post-conviction counsel unsuccessfully sought a new trial claiming that trial counsel’s failure to request jury instructions on lesser-included offenses amounted to ineffective assistance. Garcia filed a consolidated appeal and post-conviction order. In the meantime, the state acknowledged that the reckless endangerment counts were lesser-included offenses; the judge modified the judgment, which was affirmed as modified.
Garcia filed another post-conviction motion, raising new claims of ineffective assistance. Wisconsin rules require a defendant to raise all available claims for relief in his first post-conviction motion or on direct appeal unless the defendant can demonstrate a “sufficient reason.” Garcia needed to allege specific facts that would establish his post-conviction counsel’s ineffectiveness, including allegations showing that the defaulted claims were “clearly stronger” than the issues post-conviction counsel chose to present.
After Wisconsin courts rejected his petition, Garcia sought federal habeas relief. The district judge rejected the state’s procedural objection but agreed that even if counsel’s performance was deficient, the mistakes were not prejudicial. The Seventh Circuit affirmed the dismissal of the petition. The state appellate court rejected Garcia’s second post-conviction motion based on failure to satisfy the pleading standard for overcoming procedural default. That independent and adequate state procedural basis barred federal review unless Garcia can establish cause for and prejudice from his default. He has not done so.
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