### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 3482

K ENNETH M ORRIS

,

Petitioner

‐ Appellant

,

v.

B RYAN B ARTOW

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 03

‐ C

‐ 1078

— William C. Griesbach

, Chief Judge

.

____________________

A RGUED S EPTEMBER 22, 2015

— D ECIDED A UGUST 10, 2016

____________________

Before F LAUM

, W ILLIAMS

, and H AMILTON

, Circuit Judges

.

H AMILTON

, Circuit Judge

. In 2000, petitioner Kenneth Mor

‐

ris shot and killed his friend Billy Smith. The substantive issue

in this appeal is whether Morris was coerced to plead guilty

in state court to first

‐ degree reckless homicide. That issue lies

behind unusually complex layers of procedural issues that

have accreted over more than fifteen years. In the end, we

agree with the district court that Morris is not entitled to a

writ of habeas corpus on any theory. Morris was under strong2 No. 14

‐ 3482

pressures when he decided to plead guilty, but the evidence

does not show that his guilty plea was involuntary. Even

though he was represented by new counsel immediately after

pleading guilty, Morris and his new lawyer did not challenge

his guilty plea as involuntary in the state trial court. Nor did

Morris raise the issue with his appellate lawyer, who did not

deny Morris his right to effective assistance of counsel.

I. Factual and Procedural Background

A. The Shooting of Billy Smith and the Guilty Plea

On October 16, 2000, Kenneth Morris and his friend Billy

Smith were sitting in Morris’s car. Morris fired a handgun

once, hitting Smith in the head and killing him. Later that day,

Smith’s body was found in a Milwaukee alley where Morris

had left him. The State quickly charged Morris with one count

of second

‐ degree reckless homicide while using a deadly

weapon. After a preliminary hearing, the State raised the

charge to first

‐ degree reckless homicide while using a danger

‐

ous weapon. Morris retained attorney Michael Backes to rep

‐

resent him.

The case was set for trial on Monday, January 29, 2001.

That morning, attorney Backes explained to the court that

Morris suddenly wanted a new lawyer. Backes also said he

was not prepared for trial because he had understood until

just two days earlier that Morris planned to plead guilty to

first

‐ degree reckless homicide. When the court asked Morris

why he wanted another attorney, Morris responded that he

would “just feel better with a different attorney.”

The State objected to any delay, and the trial court denied

Backes’s motion to withdraw. Backes argued that he was not

prepared for trial and had not interviewed witnesses, and thatNo. 14

‐ 3482 3

the case was not old, although the State contended that it was.

The trial court then offered to postpone the trial for two days

to give Backes time to prepare. The court recessed the case

until that afternoon when it would conduct a hearing to de

‐

termine whether Morris still wanted a jury trial. Before the re

‐

cess, the prosecutor told the judge and the defense, contrary

to the State’s position some weeks earlier, that if the case went

to trial the State would seek leave of the court to increase the

charge to first

‐ degree intentional homicide. The judge did not

signal a view on that tactic but said he would address it in the

afternoon. The judge never acted on the prosecution request,

and the charge remained first

‐ degree reckless homicide.

During the recess, Morris and the State reached a plea

agreement. Morris agreed to plead guilty to first

‐ degree reck

‐

less homicide, but without the enhancement for being armed.

In exchange for his plea, the prosecution also agreed to leave

sentencing to the trial court, without offering a specific rec

‐

ommendation. The judge then conducted a thorough plea col

‐ loquy with Morris under oath. Among other points covered

in the plea colloquy, Morris told the judge that no one had

made any threats or in any way forced him to plead guilty,

and that he was satisfied with attorney Backes and his repre

‐

sentation. The judge then questioned attorney Backes, who

was also satisfied that the guilty plea was knowing and vol

‐

untary. The judge concluded by finding that Morris’s guilty

plea was knowing and voluntary and adjudging him guilty.

After pleading guilty, Morris fired attorney Backes and

hired attorney Thomas Awen. Sentencing was set for April 11,

2001. At no point before or during sentencing did Morris or

his new lawyer move to withdraw his guilty plea or otherwise4 No. 14

‐ 3482

question the voluntariness of the guilty plea. The court lis

‐

tened to extensive presentations by attorneys and witnesses,

including family members of both Billy Smith and Morris, as

well as a statement in allocution by Morris. After giving a

careful and thoughtful explanation of the tragedy in the case

and the reasons for the sentence, the trial judge sentenced

Morris to 30 years in prison and 20 years of extended super

‐

vision.

B. Direct Appeal

The state public defender appointed attorney David J.

Lang to handle Morris’s appeal. Lang filed a no

‐ merit brief

pursuant to Wis. Stat. § (Rule) 809.32, which is Wisconsin’s

procedure for implementing Anders v. California

, 386 U.S. 738

(1967). In the no

‐ merit report, Lang identified two potential

issues: (1) whether Morris might be able to challenge the va

‐ lidity of his guilty plea, and (2) whether the trial court abused

its discretion in sentencing Morris. Lang reviewed the record,

including the thorough plea colloquy, and concluded there

would be no merit to any challenge to the validity of the guilty

plea. He also found there would be no merit to a challenge to

the sentence.

As required by Wisconsin law, attorney Lang sent Morris

a copy of the no

‐ merit report and an explanation of his right

to file his own brief disagreeing with the lawyer. Morris re

‐ sponded by requesting from Lang copies of all transcripts and

court records. Lang replied that Morris would either need to

pay him for copies or could order them directly from the court

reporter.

On December 27, 2002, the Wisconsin Court of Appeals af

‐

firmed Morris’s conviction and released Lang from futureNo. 14

‐ 3482 5

representation of Morris. The court said that Morris elected

not to respond to the no

‐ merit report, which was correct, but

Morris blamed his failure to respond on Lang’s failure to pro

‐

vide transcripts and other records. The court explained that it

had conducted an independent review of the record as man

‐

dated by Anders and Wis. Stat. § (Rule) 809.32(3), and it agreed

with Lang’s analysis, including that there was no basis for set

‐ ting aside the guilty plea. Morris did not seek review of that

decision by the Wisconsin Supreme Court.

C. Federal Habeas Proceedings and Later State Proceedings

On November 4, 2003, Morris filed a pro se petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the dis

‐

trict court challenging his guilty plea and the effectiveness of

his trial and appellate counsel. The district court denied Mor

‐

ris’s petition for a writ of habeas corpus on March 14, 2007 on

grounds of procedural default. On September 18, 2007, we re

‐

versed and remanded for further consideration, including

whether Morris had exhausted his state remedies. Federal

proceedings were stayed on remand while Morris pursued

additional remedies in state courts, during which he claimed

that he received ineffective assistance of appellate counsel

and that his guilty plea had been involuntary because it had

been coerced.

To pursue state remedies, Morris filed a state petition seek

‐ ing to reinstate his direct appeal rights. The Wisconsin Court

of Appeals then directed the state trial court to conduct an ev

‐ identiary hearing on Morris’s claim for ineffective assistance

of appellate counsel. During the evidentiary hearing in 2008,

both Morris and attorney Lang testified about their commu

‐

nications with each other. The state trial court entered find

‐ ings of fact. App. 150–54. Those factual findings are presumed6 No. 14

‐ 3482

correct under 28 U.S.C. § 2254(e)(1). The trial court found that

before Lang filed his no

‐ merit report, he had communicated

with Morris about the issues he wanted to raise and that Mor

‐

ris wanted Lang to seek a reduced sentence. The trial court

also found that Morris never complained to Lang about any

coercion to plead guilty, and that if Morris had complained of

coercion, Lang would not have failed to respond.

The state appellate court eventually determined that Lang

had provided deficient performance by refusing to provide

the transcripts and records to Morris, but also that Morris had

not shown any resulting prejudice. See Wis. Stat. § (Rule)

809.32(1)(b)(2) (2007–08). Morris had been present for all hear

‐ ings for which there were transcripts, and those transcripts

did not show a basis for setting aside his guilty plea, particu

‐ larly in view of the thorough guilty plea colloquy leading to

the trial court’s finding that the plea was knowing and volun

‐

tary. And if Morris had felt coerced into pleading guilty, he

could have said so and explained why.

Ultimately, the state courts rejected the ineffective assis

‐

tance of appellate counsel claim on the merits and rejected the

stand

‐ alone coercion claim as barred by Morris’s failure to

raise it earlier. Morris then reactivated the federal case and

filed an amended federal petition on July 31, 2012. The district

court issued a thorough opinion denying relief.

II. Analysis

Morris appealed, and we issued a certificate of appealabil

‐ ity on four questions: (1) whether Morris’s guilty plea was co

‐

erced, (2) whether his appellate counsel was ineffective for

failing to raise the coercion issue in the direct appeal, (3)

whether either claim is procedurally defaulted, and (4) if soNo. 14

‐ 3482 7

whether any exception to the rule of procedural default ap

‐ plies here.

As the case comes to us on appeal, Morris asserts two in

‐

tertwined violations of his constitutional rights: first, a claim

that his appellate attorney provided ineffective assistance of

counsel by failing to argue in the direct appeal that his guilty

plea was coerced, and second, a stand

‐ alone claim that his

guilty plea was coerced. We address first the claim of ineffec

‐

tive appellate counsel, where the state courts decided the

claim on the merits and our review is deferential. We then

turn to the stand

‐ alone claim of a coerced guilty plea, which

the State asserts is subject to a procedural default. We review

de novo the district court’s treatment of legal issues, and we

review findings of fact for clear error. Denny v. Gudmanson

,

252 F.3d 896, 900 (7th Cir. 2001); Ellsworth v. Levenhagen

, 248

F.3d 634, 638 (7th Cir. 2001).

A. Effective Assistance of Appellate Counsel

Morris asserts that his lawyer who filed the no

‐ merit re

‐

port in his direct appeal provided ineffective assistance of

counsel. We focus first on the scope of this claim that is before

us and the applicable standard of review. Morris asserts that

attorney Lang provided ineffective assistance in two ways.

First, he says that Lang failed to comply with his procedural

obligations under Wisconsin law by refusing his request for

the relevant transcripts and court records for use in preparing

a response to the lawyer’s no

‐ merit report. That particular

claim is beyond the scope of the certificate of appealability

that we issued. 1 Second, Morris asserts that Lang’s assistance

1 As noted, the state courts held that Lang’s performance was deficient in

this respect but that his failure to provide the transcripts and records did8 No. 14

‐ 3482

was ineffective because he did not identify and raise in the

direct appeal the claim that Morris was coerced to plead

guilty. That claim is within the scope of our certificate of ap

‐ pealability and is properly before us.

The state courts considered this claim of ineffective assis

‐

tance. The Wisconsin Court of Appeals applied the correct

federal constitutional standard from Strickland v. Washington

,

466 U.S. 668 (1984). Wisconsin ex rel. Morris v. Pollard

, No.

2008AP1844

‐ W, *4–5 (Wis. App. June 19, 2009), available at

App. 147–48. We can grant relief on this claim only if the state

court decision was contrary to or an unreasonable application

of Supreme Court decisions or based on an unreasonable de

‐

termination of the facts. 28 U.S.C. § 2254(d). Strickland re

‐ quires proof of both deficient performance and resulting prej

‐

udice. 466 U.S. at 687. The Court also cautioned: “Judicial

scrutiny of counsel’s performance must be highly deferen

‐

tial,” avoiding the temptation to use hindsight to second

‐

guess decisions that counsel made at the time. Id

. at 689.

Applying the Strickland standard, the state court found no

deficient performance in Lang’s failure to argue in the direct

appeal that Morris’s guilty plea was coerced. The appellate

court’s decision on this claim was driven by the findings of

fact the state trial court made after hearing testimony from

both Morris and Lang. Morris’s guilty plea colloquy with the

not cause prejudice to Morris, as required for a successful claim for inef

‐

fective assistance of counsel under Strickland v. Washington

, 466 U.S. 668

(1984). If we were to reach that issue, it would be difficult to find that the

state court’s decision on the lack of prejudice was an unreasonable appli

‐

cation of Supreme Court precedent or based on an unreasonable determi

‐

nation of the facts, as needed to obtain federal habeas relief. 28 U.S.C.

§ 2254(d).No. 14

‐ 3482 9

trial judge was thorough. It offers no support for a claim of

coercion. The claim of coercion requires Morris to overcome

the strong “presumption of verity” that courts give to a de

‐

fendant’s sworn answers in the colloquy. See United States v.

Ellison

, 835 F.2d 687, 693 (7th Cir. 1987). The state trial court

found that Morris never told Lang that he felt coerced or pres

‐

sured into pleading guilty. The state appellate court also

found that the appellate record did not support a claim of co

‐

ercion. The state appellate court also found no deficient per

‐

formance, taking into account the facts that Morris did not

complain to Lang about feeling coerced beyond the record

and that Morris did not indicate any coercion during the plea

colloquy.

When a lawyer files an Anders brief or no

‐ merit report in a

criminal appeal, the standard under the Sixth Amendment for

deficient performance is whether “a reasonably competent at

‐

torney would have found one nonfrivolous issue warranting

a merits brief.” Smith v. Robbins

, 528 U.S. 259, 288 (2000); see

also Shaw v. Wilson

, 721 F.3d 908, 915–16 (7th Cir. 2013). In this

case, the appellate record on the direct appeal included the

plea colloquy and written documents. All indicated that Mor

‐

ris’s guilty plea was voluntary. The record also included ref

‐

erences to the circumstances that Morris has been arguing

show coercion: the lawyer who was not prepared for trial and

whose motion to withdraw was denied, the denial of a delay

of more than two days in the trial, and the prosecutor’s pro

‐ posal to try Morris for first

‐ degree intentional homicide.

Those circumstances tend to support a claim of coercion.

What was missing at the time, though, was any suggestion by

Morris that he had actually been coerced, so that his sworn10 No. 14

‐ 3482

answers in the plea colloquy should be disregarded and he

should face trial instead. 2

In the absence of any claim by Morris that he had been co

‐

erced into pleading guilty, the state courts did not apply

Strickland unreasonably in finding that attorney Lang’s per

‐

formance was not deficient by reason of his failure to argue

that Morris’s guilty plea had been coerced. We are not sug

‐ gesting that Morris had to use the word “coerce” or had to

recognize as a layperson that his guilty plea was legally inva

‐

lid. The problem is that nobody knew Morris’s state of mind

better than Morris. The state courts’ factual findings amount

to a finding that there is no credible evidence that Morris had

given attorney Lang any information about his own state of

mind when pleading guilty that would have called the valid

‐ ity of the guilty plea into question. The state courts’ rejection

of the claim for ineffective assistance of appellate counsel does

not justify federal habeas relief.

2 We agree with the state courts that the prosecutor’s proposal to increase

the charge to first

‐ degree intentional homicide did not amount to prose

‐

cutorial misconduct. The prosecutor stated his clear intention at the pre

‐ liminary hearing to try Morris only on first

‐ degree reckless homicide, but

that was not part of a bargain with the defense, nor could the defense show

any detrimental reliance or any legally binding commitment not to change

positions. Also, based on the prosecutor’s statement in the preliminary

hearing, it would not have been at all surprising for the trial judge to have

rejected out of hand the prosecutor’s attempt to raise the charge on the

day of the trial. Because Morris decided to plead guilty before the court

addressed that attempt, we cannot know what would have happened.No. 14

‐ 3482 11

B. The Stand

‐ Alone Claim of a Coerced Guilty Plea

1. The State’s Procedural Default Argument

The procedural issues over the fifteen

‐ year course of Mor

‐

ris’s attacks on his guilty plea have seemed kaleidoscopic,

shifting at every stage of the many state and federal proceed

‐ ings. In this appeal, the State has abandoned several of the

procedural default findings of the state courts and the district

court. See Appellee’s Br. at 19 n.3. The State argues instead

that Morris’s stand

‐ alone claim, that his guilty plea was not

voluntary because it was coerced, is procedurally defaulted

because the Wisconsin Court of Appeals implicitly rejected

that claim on the merits in the direct appeal (where attorney

Lang filed the no

‐ merit report), and Morris did not seek re

‐

view by the Wisconsin Supreme Court, as required by O’Sul

‐

livan v. Boerckel

, 526 U.S. 838 (1999). We disagree with the

premise of this procedural default argument, whether the

state appellate court implicitly decided on the merits a claim

that was not even raised in the Anders brief or no

‐ merit report.

The no

‐ merit report filed by Lang did not assert that Mor

‐

ris’s plea was coerced. The report raised in general terms the

validity of the guilty plea as a potential issue and found no

basis for a challenge to it, based on the appellate record. The

Wisconsin Court of Appeals reviewed the guilty plea ques

‐

tionnaire, the waiver

‐ of

‐ rights form, and the transcript of the

plea colloquy and concluded that the trial court had complied

with the requirements for a valid plea and that “challenging

the validity of Morris’s guilty plea would lack arguable

merit.” Neither the no

‐ merit report nor the appellate opinion

addressed whether the combination of the denial of Morris’s

request to remove attorney Backes, the attorney’s lack of prep

‐

aration, the denial of a delay of more than two days, and the12 No. 14

‐ 3482

prosecution’s proposal to raise the charge to intentional hom

‐

icide coerced Morris to plead guilty.

The State’s theory is that because the record included signs

of all four of those arguably coercive circumstances, and be

‐

cause the appellate court was obliged to search the record for

any arguable legal issues, its decision to accept the no

‐ merit

report amounted to an implicit rejection of Morris’s current

stand

‐ alone coercion claim on the merits. If that were correct,

the argument continues, Morris then defaulted that claim by

failing to seek review by the Wisconsin Supreme Court. See

Boerckel

, 526 U.S. at 839–40 (to satisfy requirement to exhaust

state remedies, prisoner must present his claims to state su

‐

preme court in petition for discretionary review).

We do not believe we should read the state appellate deci

‐

sion as a decision on the merits of a claim that was never pre

‐

sented to that court. The United States Supreme Court ex

‐ plained in interpreting 28 U.S.C. § 2254(d): “A judgment is

normally said to have been rendered ‘on the merits’ only if it

was ‘delivered after the court

Y heard and evaluated the evi

‐

dence and the parties’ substantive arguments,’” Johnson v. Wil

‐

liams

, 568 U.S.

—, —, 133 S. Ct. 1088, 1097 (2013), quoting

Black’s Law Dictionary 1199 (9th ed. 2009) (emphasis added

in Williams ), and that a decision on the merits requires a deci

‐

sion on “[ t ] he intrinsic rights and wrongs of a case as determined

by matters of substance

, in distinction from matters of form.’”

Id

., quoting Webster’s New Int’l Dictionary 1540 (2d ed. 1954)

(emphasis added in Williams ). The state appellate court’s si

‐

lence concerning a claim not actually presented to it does notNo. 14

‐ 3482 13

amount to a decision on the merits, for purposes of § 2254(d)

or Boerckel

. 3

This approach is consistent with the state courts’ decisions

themselves. The state appellate court did not believe it had

decided the merits of the stand

‐ alone coercion claim. When

Morris later presented his coercion claim to the state courts,

the appellate court found in 2011 that the claim had not been

presented, let alone decided, in the direct appeal. App. 134–

42 (finding that Morris had not justified his earlier failure to

raise the issue, so “we do not address the merits of Morris’s

claim that his guilty plea was not knowing, intelligent, and

voluntary”). Accordingly, we consider the stand

‐ alone coer

‐

cion claim under 28 U.S.C. § 2254(a), without deference to the

state court’s rejection of the claim on procedural grounds. 4

3 This case does not present the different sort of problem that arises when

a state prisoner argues that he implicitly presented his federal

‐ law claim

to the state courts by raising a closely related state

‐ law claim. We have

recognized that such a state

‐ law claim can amount to fair presentment of

federal

‐ law claims in some circumstances. See, e.g., Ellsworth v. Levenha

‐

gen

, 248 F.3d 634, 639 (7th Cir. 2001); Kurzawa v. Jordan

, 146 F.3d 435, 441–

42 (7th Cir. 1998). When a habeas petitioner relies on such implicit pre

‐

sentment of a federal

‐ law claim, it may well be appropriate to treat the

state courts’ rejection of the explicit state

‐ law claim as an implicit decision

on the merits of the implicit federal

‐ law claim. See Schmidt v. McCulloch

,

823 F.3d 1135, 1143 (7th Cir. 2016) (Hamilton, J., concurring in judgment).

These considerations do not apply when the State argues there has been

an implicit decision on the merits of a claim that was not actually pre

‐

sented.

4 The State has not argued on appeal that the procedural bar found in the

state appellate court’s 2011 decision amounted to an adequate and inde

‐ pendent state

‐ law ground for rejecting Morris’s coercion claim. See Ap

‐ pellee’s Br. at 19 n.3.14 No. 14

‐ 3482

2. The Merits of the Coerced Guilty Plea Claim

There is no doubt that Morris was under tremendous pres

‐

sure on January 29, 2001. The combination of his lawyer’s lack

of preparation for trial and the trial court’s refusal to delay the

trial by more than two days could present a claim of coercion

in other circumstances. Two days to prepare would ordinarily

seem inadequate, of course. As the state courts and district

court have recognized, though, this would have been an unu

‐ sually simple homicide trial. There was no doubt that Morris

had pulled the trigger to shoot and kill Smith. Morris himself

was the only witness to the shooting. Morris has not identified

additional witnesses or lines of inquiry that his lawyer would

have needed to pursue to prepare adequately for trial. Nor

did his lawyer object to the trial judge that two days would

not be enough.

Most compelling is Morris’s failure, even when repre

‐

sented by a newly retained lawyer, to seek to withdraw his

guilty plea in the months before sentencing. Morris’s claim of

coercion resulting from attorney Backes’s lack of trial prepa

‐

ration and the trial court’s refusal to delay for more than two

days would have more force if, shortly after the guilty plea

but before sentencing, Morris and his new lawyer had moved

to withdraw his plea based on coercion, pointing to the pow

‐

erful pressures on him to plead guilty on January 29th. Per

‐ haps such a motion would have offered an explanation suffi

‐

cient to overcome the presumption of truth that applies to a

defendant’s sworn answers to a judge during a plea colloquy.

See, e.g., United States v. Collins

, 796 F.3d 829, 834 (7th Cir.

2015); Ellison

, 835 F.2d at 693.

But if Morris actually felt coerced, despite his satisfactory

answers during the plea colloquy, only he could say so. As weNo. 14

‐ 3482 15

have said, no one else knew his state of mind better than he

did. With his new attorney, Awen, whose effectiveness has

never been questioned, Morris went forward under the plea

and argued for a modest sentence. To the extent that the orig

‐

inal attorney, Backes, might have failed to investigate the case

sufficiently, the second attorney, Awen, was given as much

time as he needed to investigate the case before sentencing,

where Morris’s state of mind at the time of the shooting was a

key issue.

Even with his new attorney, Morris never moved to set

aside the guilty plea and never called it into question. Not un

‐

til after the trial judge imposed a relatively severe sentence

and the no

‐ merit appeal had concluded did Morris begin

claiming that his guilty plea had been coerced. Then we also

have the findings of the state courts regarding Morris’s deal

‐ ings with his appellate attorney Lang. Those findings bind us

as long as they are reasonable, and they are. They tell us that

Morris never communicated to his appellate lawyer Lang that

he thought he had been pressured unfairly into pleading

guilty. In light of all these circumstances, we conclude that

Morris has not shown that acceptance of his guilty plea vio

‐

lated his federal constitutional rights. See 28 U.S.C. § 2254(a).

* * *

The state courts’ rejection of Morris’s claim that his appel

‐

late lawyer provided ineffective assistance in his direct appeal

was not contrary to or an unreasonable application of Su

‐

preme Court decisions or based on an unreasonable view of

the facts. Morris’s stand

‐ alone claim that his guilty plea was

coerced is subject to de novo review, but we find no violation16 No. 14

‐ 3482

of his federal constitutional rights. The judgment of the dis

‐

trict court denying Morris’s petition for a writ of habeas cor

‐

pus is AFFIRMED.