### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 21-1402 J ERRY S. W ILSON , Petitioner-Appellant,

v.

D AN C ROMWELL , Respondent-Appellee

.

____________________ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:13-cv-01061 — Nancy Joseph

, Magistrate Judge

.

____________________ A RGUED S EPTEMBER 7, 2022

— D ECIDED J ANUARY 23, 2023 A MENDED J UNE 1, 2023

____________________

Before S YKES, Chief Judge , and H AMILTON and B RENNAN , Circuit Judges

. B RENNAN , Circuit Judge . Melvin Williams was shot and killed on May 23, 2009, and two other men—Robert Taylor and Romero Davis—were injured in the same shooting. A Wisconsin jury found beyond a reasonable doubt that Jerry Wilson was the gunman. He appe als from the district court’s denial of his habeas petitionunder 28 U.S.C. § 2254, claiming2 No. 21-1402

that he received constitutionally ine ff ective assistance from his trial and postconviction counsel.

We do not reach the merits of Wilson’s claims because both are procedurally defaulted. Wisconsin state courts disposed of Wilson’s ine ff ective assistance of tr ial counsel claim on adequate and independent state procedural grounds. And Wilson failed to present his ine ff ective assistance of postconviction counsel claim for one co mplete round of state court review. The default of these cl aims is not excused by a su ffi

cient showing of actual innocence, barring federal review of the merits. Accordingly, we a ffi rm the district court’s denial of habeas relief.

I The Shooting, Investigation, and Charges

. In the early morning hours of May 23, 2009, three pe ople were shot during an “after-set” party 1 at a two-story duplex unit on North 44th Street in Milwaukee. The part y was large enough that attendees were both inside the dupl ex and outside in the street. Just before gun fi re began, two vehicles passed through the crowded street in front of the duplex, and the cars’ occupants exchanged insults with party a tt endees in the roadway. The drivers parked nearby, and the passengers—who included the three eventual victims—wa lked back to the party to fi nd the people who had yelled at them. A fi st fi ght broke out in the street, and then the shooting started.

Melvin Williams su ff ered a fatal gunshot wound to the chest and died that day. The two other victims survived. A

1 According to witnesses at trial, an after-set party is like a house party or block party, where guests pay an admission fee and alcohol is served.No. 21-1402 3

bullet struck Robert Taylor in the foot, and Romero Davis received wounds to his stomach and right calf. Neither Taylor nor Davis could identify who shot them. Investigation of the crime sce ne yielded only a modest amount of physical evidence. Law enforcement recovered fi ve .40 caliber bullet casings, four .38 caliber casings, a .40 caliberbullet, and several bullet fragments at the scene but never located the murder weapon. In general, the .38 caliber casings were damaged and fl a tt ened while the .40 caliber casings were in be tt er condition. Police spoke with eyewitnesses early in the investigation. Shakira King a tt ended the after-set party and identi fi ed Wilson as the gunman to law enforcement. She also picked Wilson out of a photo lineup the day after the crime. Antwan Smith-Currin, who lived in the upstairs duplex unit at the time, also identi fi ed Wilson as the gunm an in a photo array. According to detective testimony, Samantha Coats and Sanntanna Ross identi fi ed Wilson as the shooter as well, although at trial the women either denied having made such identi fi cation or sharply quali fi ed their prior statements. Offi cers arrested Wilson in July 2009, and the State charged himwith one count of reckless homicide and two counts of reckless endangerment.

Smith-Currin testi fi ed at Wilson’s preliminary hearing and identi fi ed him as the gunman. When asked whether he saw other gunmen besides Wilson, Smith-Currin answered, “No, sir,” but acknowledged that “People w[ere] trying to say4 No. 21-1402

that I was shooting because I was on the porch.” 2 At the hearing, the trial court found probable cause to believe that Wilson commi tt ed a felony and ordered him bound over for trial. Jury Trial

. In August 2010, Wilson went to trial with a tt orney Glen Kulkoski as his counsel. Given the minimal physicalevidence, the case centered on the testimony of four eyewitnesses. Smith-Currin took the stand and identi fi ed Wilson as the gunman, consistent with his previous statements to law enforcement. He testi fi ed to seeing Wilson walk between two houses, approach the crowd in the street, and open fi re witha handgun. Yet Smith-Currin’s testimony contained discrepancies. For instance, he testi fi ed to standing on the porch when he saw Wilson open fi re, but he was cross-examined with his prior sworn statement that he had been in the street when he saw the shooting. King also testi fi ed at trial and identi fi ed Wilson as the shooter. King’s account largel y mirrored Smith-Currin’s: Wilson emerged from between two ho uses on the same side as the duplex and opened fi re. But King also provided certain discrepant details. For example, she was neither consistent in describing her position relative to the gunman, nor certain of the distance between them. At trial, she fi rst suggested that she was two feet from the gunman. But following a courtroom distance demonstration, she changed that estimate to fi fteenfeet. She also said that the shooter had a ponytail but had previously told police that he wore his hair in braids. Finally, King testi fi ed she was not involved in the street fi ght, but previously told o ffi cers that she had participated.

2 The two-story duplex has an uppe r and a lower porch. Smith-Currin testified at trial that he was on the lower porch at the time of the shooting.No. 21-1402 5

The State also called two other eyewitnesses to testify. Sanntanna Ross said she did not see who shot because she was fi ghting in the street during the shooting. That prompted the State to try to impeach her withher prior statements to lawenforcement inculpating Wilson. Per testimony from investigating detectives, Ross identi fi ed Wilson as the shooter andrecognized his face in a photograph. In response to the impeachment evidence, Ross claimed she felt pressure from police to “get [her] to say things th at [she] didn’t want to say.”

Samantha Coats testi fi ed that, in the seconds before theshooting, she was looking out of a nearby second-story window with a view of the street. She described seeing an individual come into the street ne ar the duplex and start shooting. When asked at trial, she agreed that the gunman’s silhoue tt e fi t Wilson’s description, but she did not make an a ffi rmative identi fi cation. As with Ross, the State tried to impeach Coats with prior statements. According to police documents and testimony, Coats selected Wilson’s photograph during a photo lineup, indicated he wa s the shooter, and wrote “I’m sure is the shooter” on the ph oto lineup paper near her signature. In response, Coats explained she was “under a lot of pressure” from law enforcement and believed that she “was going to be taken into custody.” Coats likewise agreed with defense counsel that her statements to police were made to please the detectives and to avoid ge tt ing herself in trouble.

The State called other witnesses to talk about the physical evidence. Detectives describ ed where they found the di ff erent bullet casings and explained that the location of the .40 caliber casings was generally consistent with a gunman fi ring from an alleyway near the duplex. A fi rearm examiner opined that6 No. 21-1402

the .38 caliber casings were all fi red out of one gun while the .40 casings were all fi red from a second weapon. After the State rested, Wilson called three witnesses in his defense. Kawana Robinson, Aaron Lee, and Shantell Johnson all testi fi ed that they did not see Wilson at the after-set party the night of the shooting.All in, the accounts of the trial witnesses varied. For instance, the shooter’s height was described as five-foot-three by one witness, and five-foot-e leven by another. One witness said the shooter was wearing a fleece-style top with no hood, while others testified he was ei ther wearing a baseball hat or had a hood up. There was also disagreement about whether the shooter wore his hair in a po nytail or in braids. Finally, at least two witnesses claimed it wa s too dark to discern any details about the gunman. The jury found Wilson guilty on all three counts, and the court sentenced him to 28 years’ imprisonment. Wilson’s § 974.02 Proceedings and Possible New Evidence

. Post-judgment, two events unfo lded simultaneously. In the fall of 2010, Wilson obtained postconviction counsel (Thomas Simon) 3 and challenged his conviction. Wilson began by pursuing a claim for ine ff ective assistance of trial counsel which, in Wisconsin, is brought as a § 974.02 motion in the trial court. See W IS

. S TAT

. §§ 809.30, 974.02; Lee-Kendrick v. Eckstein , 38 F.4th 581, 586 (7th Cir. 2022). Wilson fi led that motion in April

3 Throughout we refer to Thomas Si mon, who assisted Wilson duringhis § 974.02 proceeding, as Wilson’s “postconviction counsel.” “Postconviction counsel” refers exclusively to Simon and should not be confusedwith Christopher August, who assisted Wilson with his § 974.06 state collateral attack, or with Wilson’s current federal habeas counsel.No. 21-1402 7

2011, arguing that trial counsel had failed to properly investigate the case, raise a key defense, and thoroughly cross-examine a State witness. Also during the fall of 2010, W ilson had been investigating new evidence. He alleges that three to four months after the trial concluded, he became aware of a new eyewitness through a fellow inmate named Deangelo Harvey. In late 2010, Harvey purportedly told Wils on that a woman living in the duplex was home on the night of the shooting, but he did not provide a name or any other speci fi cs. Nonetheless, Wilson claims he eventually received a le tt er from that woman— Lakisha Wallace—sometime between March and June of 2011. Per Wilson, Wallace explained in her le tt er that she had “information about what happened that night” but provided no other details. Wilson said he wrote back asking if she would testify on his behalf and requesting her contact information. In a third le tt er, Wallace allegedly agreed and provided Wilson a post o ffi ce box number. 4 Thereafter, Wilson claims that his mother got in touch with Wallace and that Wallace spokewith his postconviction counsel. Nonetheless, there is no evidence that Wilson’s postconvicti on counsel ever obtained an

a ffi davit from Wallace or involved her in the direct appeal. The Wisconsin trial court denied Wilson’s § 974.02 motionon April 18, 2011, and Wilson appealed. In 2012, the Wisconsin Court of Appeals denied relief, and the Wisconsin Supreme Court declined to grant re view, ending Wilson’s direct appeal. Wilson’s § 974.06 Proceedings. Almost a year after Wilson lost his direct appeal, he acquired a notarized statement from

4 Wilson did not keep any of the letters nor did he make copies.8 No. 21-1402

Wallace—the same individual with whom he had allegedly exchanged le tt ers in 2011. In her July 1, 2013, statement, Wallace accused Smith-Currin of be ing the shooter and said that Wilson was innocent. Wilson then fi led a pro se postconviction motion under § 974.06 in Wisconsin state court, alleging ine ff ective assistance of both tria l and postconviction counsel. He also sought a hearing on the “newly discovered” Wallace testimonial evidence. The state trial court denied relief, and the appellate court a ffi rmed. Two years later, though, Wilson’s state collateral challenge gained new life. In September 2016, he renewed his claims by petitioning the Wisconsin Supr eme Court for review. That court ordered the State to submit a response, in which theState acknowledged that Wilson was entitled to an evidentiary hearing on the newly discovered evidence. As the Wisconsin Supreme Court summarized, the State conceded in its response that “if the allegation at issue is accepted as true, there is a reasonable probability that a jury, looking at the old evidence and the new evidence, would have a reasonable doubt as to Mr. Wilson’s guilt.” So, the Wisconsin Supreme Court granted the petition for review and remanded on the newly discovered evidence claim. It held in abeyance the other claims, including Wilson’s ine ff ective assistance of postconviction counsel claim. In August 2017, an evidentiary hearing was held at which Wallace testi fi ed to the information in her July 2013 statement.She explained that, on the night of the shooting, she was living on the fi rst fl oor of the duplex, and there was a big party going on in the upstairs unit where Smith-Currin lived. In thehours leading up to the shooting, Wallace witnessed SmithCurrin drinking, smoking, and ingesting pills on the porch.No. 21-1402 9

As a result, Wallace believed that Smith-Currin was under the in fl uence at the time of the shootin g: “Yeah, he was very much so under the in fl uence. Like you could tell he was high, you know.”As the party ramped up, Wallace said she noticed commotion outside her unit and ob served Smith-Currin ask his brother for a fi rearm. She next saw Sm ith-Currin go outside with the handgun and yell that the partygoers should move away from the house. According to Wallace, Smith-Currin then ran down the front steps and opened fi re on the people in the street. During the shooting, Wallace claims to have heard multiple weapons fi ring: “It wasn’t like it was just one gun. Like you could hear di ff erent guns going o ff . It wasn’t like just one person shooting outside.” Wallace testi fi ed further that, once the shooting stopped, Smith-Currin tried to come inside her unit. She refused him entry but overheard Smith-Currin tell his brother that he had just shot someone. Wallace also reported hearing Smith-Currin discuss pinning the crime on Wilson. Wilson took the stand next. He explained how Wallacereached out to him after his conviction in 2011, and he described their alleged exchange of le tt ers. Wilson also testi fi edthat, in the hours before the party, he had helped set up a music system for Wallace at the duplex. Yet despite having been to Wallace’s residence just hours before the shooting, Wilson said it never occurred to him that she might have information ab out the incident. Indeed, Wilson never brought Wallace to trial counsel’s a tt ention or otherwise reached out to her pretrial. Per Wilson, it was not until Wallace wrote to him that he realized she might have helpful information. And while Wilson claimed he noti fi ed10 No. 21-1402

postconviction counsel about Wallace during his direct appeal, he could not explain why his counsel failed to act on the Wallace lead.After the hearing, the state trial court denied Wilson’s request for a new trial. In its oral ruling, the trial court found that, “[g]enerally, Miss Wallace’s testimony was credible and worthy of belief.” 5 But the judge assessed Wilson’s statements di ff erently, explaining, “Mr. Wils on’s testimony is not credible. It is not worthy of belie f. I give his testimony zeroweight.” The court observed that Wilson had recounted receiving le tt ers from Wallace, yet Wallace testi fi ed she was illiterate. As the court explained, “Miss Wallace doesn’t have the ability to correspond with the defendant. She can’t read. She can’t write.” At bo tt om, the trial court held that Wilsonwas negligent in failing to present the newly discovered evidence to the jury and thus not entitled to a new trial. Wilson then made a strategic decision to streamline his case. He voluntarily dismissed his petition for review (with his ine ff ective assistance of postconviction counsel claim), which the Wisconsin Supreme Court had held in abeyance, so that he could appeal the denial of his request for a new trial based on new evidence. Nonetheless, Wilson’s appeal of his newly discovered evidence claim failed. The Wisconsin Court of Appeals agreed with the tria l court that Wilson was negligent in not presenting the Walla ce evidence earlier and denied relief. Soon after, the Wisconsin Supreme Court declined

5 The trial court qualified this credibility finding somewhat, explaining, “Miss Wallace does have some limitations that undermine her credibility, not enormously, but there are areas where her testimony could be more credible.” One such issue was th at Wallace “ha[d] some difficulties in sequence of events.”No. 21-1402 11

review. Having lost on the newly discovered evidence claim and having voluntarily dismissed his other claims pending in the Wisconsin Supreme Court, the doors to state court relief closed for Wilson. Habeas Corpus Petition . Wilson then turned to federal court. He had timely fi led an original federal habeas petition on September 20, 2013, which the district court stayed pending exhaustion of state proceedings. After his state court path was foreclosed, he amended his ha beas petition on July 30, 2019, alleging three grounds for relief: (1) ine ff ective assistance of trial counsel; (2) ine ff ective assistance of postconviction counsel; and (3) newly discovered evidence.The district court ruled that Wilson procedurally defaulted his claim for ine ff ective assistance of trial counsel. Likewise, the court decided that the default was not excused because Wilson failed to make a su ffi ciently strong showing of actual innocence. On the ine ff ective assistance of postconviction counsel claim, the distri ct court did not explicitly engage with procedural default. Instead, the court found that Wilson could not show constitutionally ine ff ective assistance on the merits. Finally, the distri ct court disposed of the newly discovered evidence claim, fi nding that the discovery of new evidence alone does not qualify as grounds for federal habeasrelief absent an independent constitutional violation. The district court also denied Wilson a certi fi cate of appealability. At Wilson’s request, we granted a certi fi cate of appealability under 28 U.S.C. § 2253(c )(2) for the following issues:

 Whether Wilson has established ine ff ective assistance of trial counsel;12 No. 21-1402

 Whether Wilson has made a strong enough showing of actual innocence to excuse any procedural defaults;

 Whether the federal constitutional right to counsel applies to Wisconsin postconviction counsel ʹ s performance; and

 Whether, if the federal constitutional right tocounsel applies to Wisconsin post-conviction counsel, the standard for ine ff ective assistance is met here. After reviewing the petition and record, we a ffi rm the district court’s denial of Wilson’s petition for federal habeas relief for the reasons that follow. 6

IIAs noted, the district court dismissed Wilson’s habeas petition. “When reviewing a distri ct court’s ruling on a habeas corpus petition, we review the district court’s factual fi ndings for clear error and rulings on issues of law de novo .” Sanders v. Radtke, 48 F.4th 502, 508 (7th Cir. 2022) (quoting Lee-Kendrick ,38 F.4th at 585–86). As to whether a claim is procedurally defaulted, our review is de novo. Garcia v. Cromwell , 28 F.4th 764, 771 (7th Cir. 2022) (citing Johnson v. Thurmer, 624 F.3d 786, 789 (7th Cir. 2010)).

6 The court thanks Vladimir J. Seme ndyai, Esq., Andrew P. LeGrand, Esq., Pooja Patel, Esq., and Zachary T. Reynolds, Esq. of Gibson, Dunn &Crutcher LLP for accepting this appointment and for their fine representation of Wilson throughout this appeal.No. 21-1402 13

A

We fi rst consider whether Wilson’s claim for ine ff ective assistance of trial counsel is procedurally defaulted. The State contends it is because the stat e court disposed of Wilson’sclaim on an adequate and independent state law ground. Wilson seems to acknowledge this but focuses instead on overcoming default through the actual innocence gateway. We hold that Wilson’s claim for ine ff ective assistance of trial counsel is indeed procedurally defaulted. “[A] state prisoner must exha ust available state remedies before presenting his claim to a federal habeas court.” Davila v. Davis , 137 S. Ct. 2058, 2064 (2017) (citing 28 U.S.C. § 2254(b)(1)(A)). A “corollary” to that rule is that federalcourts may not review federal claims that the state court denied on an adequate and independent state procedural ground. Id. So, we begin by examining the state court’s treatment of Wilson’s claim for ine ff ective assistance of trial counsel. The Wisconsin Court of Appeals was the fi nal state court to evaluate Wilson’s ine ff ective assistance of trial counsel claim, and it denied that clai m as inadequately pleaded under State v. Allen , 682 N.W.2d 433 (Wis. 2004). 7Per Wisconsin law, a defendant claiming ine ff ective assistance of counsel must plead “su ffi cient material facts— e.g. , who, what, where, when, why, and how—that, if tr ue, would entitle him to the

7The Wisconsin Supreme Court denied Wilson’s ensuing petition for review without comment. Therefore, we look to the Wisconsin Court of Appeals’ decision. See Wilson v. Sellers , 138 S. Ct. 1188, 1192 (2018) (holding that federal courts on habeas review look to the “last related state-court decision that [ ] provide[s] a relevant rationale”).14 No. 21-1402

relief he seeks.” Id. at 436; see also id. at 441–42; State v. Bentley, 548 N.W.2d 50, 53–54 (Wis. 1996). State trial courts may deny such a claim without a hearing based on a defendant’s recitation of “conclusory allegations” or failure to “raise facts su ffi

cient to entitle the movant to relief.” Allen , 682 N.W.2d at 437; see also Whyte v. Winkleski, 34 F.4th 617, 622 (7th Cir. 2022) (describing the Allen pleading standard). Applying that standard, the Wisconsin Court of Appeals determined that Wilson’s ine ff ective assistance of counsel claim was insu ffi ciently pleaded under Allen : “Despite a lengthy recitation of the standards set forth in Bentley and Allen for a su ffi cient postconviction motion, Wilson fails to make

su ffi cient allegations to warrant relief.” The state appellate court continued, “Because the allegations in the postconviction motion were insu ffi cient under Bentley and Allen , whether to grant a hearing was commi tt ed to the [trial] court’sdiscretion. We discern no erroneous exercise of that discretion.” In denying Wilson’s claim for ine ff ective assistance of trial counsel under the Allen standard, the state court of appeals relied on an adequate and independent state law ground. As stated, federal courts “may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule.” Davila , 137 S. Ct. at 2064. The Allen standard at issue here is both adequate and independent. As to adequacy, “For a state-law ground to be ‘adequate,’ it must be ‘ fi rmly established and regularly followed.’” Clemons v. P fi ster, 845 F.3d 816, 820 (7th Cir. 2017) (quoting Walker v. Martin , 562 U.S. 307, 316 ( 2011)). The state law ground also “must not have been applied in a manner thatNo. 21-1402 15

‘impose[s] novel and unforeseeable requirements without fair or substantial support in prior state law’ or ‘discriminate[s] against claims of federal rights.’” Id. (quoting Walker, 562 U.S. at 320–21). When examining the ad equacy of a state law procedural ground, our review is limited to whether the procedural ground “is a fi rmly established and regularly followed state practice at the time it is applied, not whether the review by the state court was proper on the merits.” Lee v. Foster , 750 F.3d 687, 694 (7th Cir. 2014). We have previously held the Allen pleading standard is a fi rmly established and regularly followed state practice, and we do so here. In Lee v. Foster, the Wisconsin Court of Appeals denied Lee’s claim for ine ff ective assistance of counsel and “found that the allegations regarding [Lee’s] postconviction counsel’s performance were conclusory and legally insu ffi

cient” under the Allen standard. Id. at 693. On federal habeas review, we held that Lee’s claim was procedurally defaulted and that the Allen rule “is a well-rooted procedural requirement in Wisconsin and is therefore adequate.” Id. at 694. So, the Allen standard functions as an adequate state law ground for denial of Wilson’s ine ff ective assistance of trial counsel claim.

The Allen pleading standard is also independent. A statelaw procedural ground satis fi es the independence prong when “the court actually relied on the procedural bar as an independent basis for its disposition of the case.” Lee-Kendrick , 38 F.4th at 587 (quoting Garcia , 28 F.4th at 774). Here, the Wisconsin Court of Appeals explicit ly referenced and relied upon the Allen procedural rule in disposing of Wilson’s claim for ine ff ective assistance of trial counsel. Thus, the Allen standard served as an independent state law ground for denying16 No. 21-1402

Wilson’s claim. We have reached the same conclusion in other cases implicating the Allen standard. See, e.g. , Lee , 750 F.3d at 693 (holding that the Allen rule “clearly served as an independent basis for the court’s denial of [petitioner’s] motion”); Triple ttv. McDermo tt, 996 F.3d 825, 829–30 (7th Cir. 2021) (concluding that the Allen pleading standard is an adequate and independent basis for the state court’s denial of petitioner’s ine ff ectiveness claim). So, the dist rict court properly ruled that Wilson’s ine ff ective assistance of trial counsel claim was procedurally defaulted, and we a ffi rm that decision.

B Next up is Wilson’s claim th at his postconviction counsel rendered ine ff ective assistance during the § 974.02 proceeding. This claim implicates the proper classi fi cation of § 974.02 proceedings, but in Lee-Kendrickwe already decided that: “[A] claim of ine ff ective assistance of counsel under [Wisconsin Statute] § 974.02 is part of a dire ct appeal rather than a request for collateral review.” 38 F.4th at 587. So, 28 U.S.C. § 2254(i), which bars federal habeas relief for the ine ff ective assistance of counsel at collateral post-c onviction proceedings, does not preclude Wilson’s claim here.With that, we move to whether Wilson procedurally defaulted his claim for ine ff ective assistance of postconviction counsel. The State argues that Wilson defaulted this claim byfailing to present it for one complete round of state court review. Wilson does not vigorously contest that position, focusing instead on overcoming default. Under 28 U.S.C. § 2254(b)(1)(A), a petition for federal habeas relief shall not be granted unless it appears that “the applicant has exhausted the remedies available in the courts ofNo. 21-1402 17

the State.” Applying that provision, we have held that “[t]o fairly present [a] federal claim, a petitioner must assert that claim throughout at least one complete round of state-court review, whether on direct appeal of his conviction or in postconviction proceedings.” Richardson v. Lemke, 745 F.3d 258, 268 (7th Cir. 2014) (citing McDowell v. Lemke, 737 F.3d 476, 482(7th Cir. 2013)). The complete round rule “means that the petitioner must raise the issue at each and every level in the statecourt system, including levels at which review is discretionary rather than mandatory.” Id. (citing Lewis v. Sternes , 390 F.3d 1019, 1025–26 (7th Cir. 2004)). Wilson voluntarily dismissed his claim for ine ff ective assistance of postconviction co unsel before the Wisconsin Supreme Court ruled on it. That voluntary dismissal e ff ected the

same outcome as not fi ling a petition in the fi rst place—theWisconsin Supreme Court never evaluated his claim for ineffective assistance of postconviction counsel. As a result, Wilson’s claim for ine ff ective assistance of postconviction counsel is procedurally defaulted. See Johnson v. Foster, 786 F.3d 501, 504–05 (7th Cir. 2015) (holding th at defendant’s failure to fi lea petition for review with the Wisconsin Supreme Court violated the complete round of review rule). Without an entire round of state-court review, Wilson procedurally defaulted his claim.

IIIWhere, as here, a petitioner’s claims are procedurally defaulted, federal habeas review is precluded unless the prisoner demonstrates either of two things. Coleman v. Thompson , 501 U.S. 722, 750 (1991). The petitioner may demonstrate “cause for the default and actual prejudice as a result of the alleged violation of federal law,” or he may “demonstrate that18 No. 21-1402

failure to consider the claims will result in a fundamental miscarriage of justice.” Id. Moreover, “[t]he miscarriage of justice exception ‘applies only in the rare case where the petitioner can prove that he is actually i nnocent of the crime of which he has been convicted.’” Blackmon v. Williams , 823 F.3d 1088, 1099 (7th Cir. 2016) (quoting McDowell , 737 F.3d at 483); see also Sawyer v. Whitley, 505 U.S. 333, 339 (1992). Wilson does not allege cause and prejudice, 8 so we focus on the actual innocence exception.

Wilson maintains that he has made a su ffi cient showing of actual innocence and urges us to review the merits of his claims. First, he suggests that the State has already admi tt ed that statements made during state court proceedings would have given a jury reasonable doubt, and thus conceded thequestion of actual innocence. Wilson further asserts that Wallace’s testimony is su ffi ciently compelling and thus “there can be li tt le doubt that [he] has satis fi ed the actual innocence standard.” More precisely, Wilson contends that the Wallace testimony is persuasively ex culpatory and that Smith-Currin’s preliminary hearing statements corroborate Wallace’s account. He also tries to down play the probative force of the inculpatory record evidence. The State responds that the Wallace evidence—including when considered with the restof the trial evidence—falls short of su ffi ciently establishing actual innocence. It contends Wallace’s testimony is uncorroborated and in tension with other testimonial and physical evidence. It also highlights

8 At oral argument Wilson’s counsel informed us that Wilson was not pursuing relief on a cause-and-prejudice theory. See Oral Arg. at 6:12–7:02.No. 21-1402 19

that, even if true, Wallace’s account does not technically rule Wilson out as a potential gunman.

We start with whether the Stat e conceded that Wilson has made a su ffi cient showing of actual innocence. Wilson is correct that the State previously admi tt ed he was entitled to a hearing on the newly discovered evidence. After Wilson fi led a pro se motion about that evid ence, both the state trial andappellate courts declined his request for a hearing. Wilson appealed to the Wisconsin Supreme Court, and on that court’s direction, the State fi led a response conceding that Wilson was entitled to a hearing. Speci fi cally, the State admi tt ed it was “reasonably probable that if a jury were to fi nd Wallace credible, her testimony would crea te a reasonable doubt about whether Wilson was the shooter.” Even so, the federal standard for a showing of actual innocence demands more than what the State conceded. When we evaluate an actual innocence cl aim for purposes of federal habeas review, the appropriate question is whether “it is more likely than not that no reasonab le juror would have convicted [Wilson] in the light of the new evidence.” Schlup v. Delo , 513U.S. 298, 327 (1995). “To be credible, such a claim requires petitioner to support his allegation s of constitutional error with new reliable evidence—whether it be exculpatory scienti fi cevidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” Id. at 324. The burden rests on the petitioner to make the requisite showing. Id. at 327

. This is a more demanding standard than what isrequired to merit a hearing. The State’s concession that Wilson was entitled to a state-court evidentiary hearing does not also serve as an admission thatWilson has shown actual innocence. Language from Schlup clari fi es this point. There, the20 No. 21-1402

Supreme Court explained that “[ t]he meaning of actual innocence ... does not merely requir e a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty.” Id. at 329. So, the State did not concede the question of actual innocence. We further hold that Wallace’s testimony does not su ffi

ciently establish Wilson’s actual innocence. At the outset, we acknowledge that this evidence is both new and credible, which are predicate requirements for the actual innocence gateway. Id. at 324. The evidence is new because it was not presented at Wilson’s trial, and it is credible because the Wisconsin Court of Appeals found that Wallace’s testimony was generally worthy of belief. In th is appeal, the State also recognizes as much. Yet the presentation of new and credible evidence does not automatically satisfy the Schlup standard for actual innocence. Instead, the new evidence must be considered along with the existing evidentiary record. “In applying this standard, we must consider all the evidence, both old and new, incriminating and exculpatory, without regard to whether it would necessarily be admi tt ed at trial.” Blackmon , 832 F.3d at 1101 (citing House v. Bell , 547 U.S. 518, 538 (2006)). From there, we make a probabilistic determination abou t what reasonable jurors would do. House, 547 U.S. at 538. The requisite probability is established only if Wilson shows that “it is more likely than not that no reasonable juror wo uld have convicted him in the light of the new evidence.” Schlup , 513 U.S. at 327. Finally, we always keep in mind that the “ Schlup standard is demanding and permits review only inthe ‘extraordinary’ case.” House, 547 U.S. at 538 (quoting Schlup , 513 U.S. at 327); see alsoNo. 21-1402 21

McQuiggin v. Perkins , 569 U.S. 383, 401 (2013) (“We stress once again that the Schlup standard is demanding.”). Adhering to the rigor of the Schlup standard for actual innocence, we cannot say that the Wallace evidence is so compelling and unequivocal that no reasonable juror would have convicted Wilson in the light of it. 9 Wallace’s testimony just adds a new voice to a highly co mplex, and often inculpatory, evidentiary record. For instance , both Smith-Currin and King still unequivocally identi fi ed Wilson as the gunman and described him emerging from an alleyway and opening fi re. We conclude that matching testimony from Smith-Currin and King, delivered at trial and without quali fi cation, likely would prevent reasonable jurors from placing signi fi cant reliance on Wallace’s account presented more than four years later 10 —especially since a detective testi fi ed that the location of the .40 bullet casings was ge nerally consistent with a shooter coming from the alleyway. See Schlup , 513 U.S. at 332 (“[T]he court may consider ho w the timing of the submission ... bear[s] on the probable reliability of that evidence.”). Other record evidence, when considered in conversation with the Wallace testimony, al so stops us from concluding

9 In applying Schlup , we are mindful of the distinction between Schlup ’s gateway actual-innocence standard and the Jackson v. Virginia , 443 U.S. 307 (1979), standard applicable to claims of insufficient evidence. As the amendments made to the majority opinion and dissent emphasize, the standards are not equivalent. See House, 547 U.S. at 538.

10 Our dissenting colleague points out that King and Smith-Currin did not identify Wilson as the gunman the night of the shooting. But King identified Wilson in a photo array the following day, and Smith-Currin did the same less than a month later. Wallace, by contrast, waited years before coming forward with her version of events.22 No. 21-1402

“that more likely than not any reasonable juror would have reasonable doubt.” House , 547 U.S. at 538. The State’s impeachment evidence of Samantha Coats and Sanntanna Ross—which included Coats’ prior identi fi cation of Wilson as the gunman during a photo lineup—would similarly undercut, in the minds of reasonable jurors, Wallace’s alternative account of the shooting. Wallace’s testimony and the physical evidence also do not foreclose the existence of multiple shooters. Wallace testi fi ed she heard multiple guns fi ring, and detectives recovered two di ff erent sets of bullet casings. She explained “[i]t wasn’t like it was just one gun. Like you could hear di ff erent guns going o ff . It wasn’t like just one personshooting outside.” So, a reasonable juror might consider Wallace’s testimony and still fi nd that Wilson was one of two (ormore) shooters. Plus, no other witness’s account of the shooting matches Wallace’s. The closest corroboration of Wallace’sversion comes from Smith-Currin’s preliminary hearing statement, in which he testi fi ed that people thought he was shooting. But that advances the ball li tt le, because Wallace is still the only identi fi ed witness to accuse Smith-Currin of being the gunman. The discrepancies in testimon y do not end there. As mentioned, witnesses provided varied accounts of the shooting and the shooter. Whether it is the gunman’s height, hair, or clothing, the witnesses’ recollections di ff ered. So, even with Wallace’s testimony, we are left with a series of competing eyewitness accounts, the balance of which would strongly point to Wilson’s guilt for reas onable jurors. When evaluatinga claim of actual innocence, our role “is not to make an independent factual determination about what likely occurred,but rather to assess the likely impact of the evidence on reasonable jurors.” House, 547 U.S. at 538. As the dissentNo. 21-1402 23

emphasizes, a state court found Wallace’s testimony to be credible. But that fi nding does not mean that reasonable jurors would necessarily credit Wallace’s account of the shooting over that of any other witn ess, such as Smith-Currin orKing. Compelling inculpatory record evidence remains, notwithstanding Wallace’s credibility, so considering “all the evidence, old and new, incriminating and exculpatory,” id. (cleaned up), we cannot say that it is more likely than not that no reasonable juror would have convicted Wilson in the light of the new evidence. Our conclusion accords with relevant precedent. In Blackmon , the court heard competing eyewitness testimony. 823 F.3d 1088. There, two gunmen approached a victim and opened fi re. Id. at 1092. The ensuing benc h trial focused on the identity of the second gunman, and eyewitness testimony was paramount. Id. at 1092, 1095–96. Approximately two months after the shooting, two eyewitnesses identi fi ed Blackmon as one of the triggermen through photo lineups and in-person lineups. Id. at 1094. Those same witnesses identi fi ed Blackmon as the gunman at trial. Id. at 1093–95. In response, Blackmon called three defense witnesses. Two of those witnesses provided an alibi for Blackmon ; the third claimed to have watched the shooting and testi fi ed that Blackmon was not present at the scene. Id. at 1095–96. The presiding judge determined that Blackmon was one of the shooters and found him guilty. Id. at 1096. Like Wilson, Blackmon challenged his conviction through federal habeas and tried to pass through the actual innocence gateway for certain defaulted claims. Id. at 1100–01. To that end, Blackmon provided two new eyewitness a ffi davits. Id. at 1097. Each of the new witness a ffi davits claimed that24 No. 21-1402

Blackmon was not one of the gunmen. Id. Reviewing all theevidence—old and new—this court concluded that Blackmon’s showing of actual innocence was insu ffi cient. Id. at 1101–02. In reaching that conclusion, this court noted that the new evidence merely contrasted with the State’s two credible eyewitness accounts. Id. And the new eyewitnesses did not come forward until eight years after the shooting. Id. at 1102.So, the “balance between inculpatory and exculpatory witnesses [was] not enough to meet the demanding Schlup standard for actual innocence.” Id.

The facts here track those in Blackmon . Like Blackmon, Wilson o ff ers new eyewitness testimony into a factual record occupied by contrasting eyewitne ss statements. But as ruled in Blackmon , the introduction of new eyewitness testimony does not amount to a showing of actu al innocence when strong and credible testimony to the contrary remains. Just as the two

new a ffi davits in Blackmon merely added to the balance of inculpatory and exculpatory evid ence, so too does Wallace’s testimony. Even with the Wallace evidence, we are left with a complex factual record pointing in di ff erent directions. 11 We therefore hold that Wilson has not satis fi ed the Schlup standard for actual innocence. Other cases from this court also support our conclusion. See, e.g. , Smith v. McKee, 598 F.3d 374, 387–88 (7th Cir. 2010) (concluding insu ffi cient showing of

11 The dissent observes that, unlike in Blackmon , 823 F.3d at 1093, the inculpatory witnesses here knew Wils on before the shooting. For our dissenting colleague, that prior knowledge dilutes the weight of the photo lineup identifications by King and Smith-Currin. But Wallace was not astranger to Wilson or Smith-Currin, either. Indeed, at the evidentiary hearing Wallace testified she had been around Smith-Currin “plenty of times” before the shooting, and Wilson helped set up the music at Wallace’s apartment on the night of the crime.No. 21-1402 25

actual innocence where petitioner’s two new a ffi davits did

not su ffi ciently counter the state’s evidence, which included two eyewitness identi fi cations and a self-inculpatory statement); Hayes v. Ba tt aglia , 403 F.3d 935, 937–38 (7th Cir. 2005) (holding that a draw between the number of eyewitnesses forand against defendant—six new exculpatory witnesses versus the state’s six inculpatory trial witnesses—“cannot establish that no reasonable fact fi nder would have found the applicant guilty”) (cleaned up). Finally, Jones v. Calloway, 842 F.3d 454 (7th Cir. 2016), is instructive as a rare case where we concluded that the defendant had made a su ffi cient showing of actual innocence. Jones was convicted of murder and sought federal habeas relief. The district court held his claims procedurally defaulted, forcing Jones to rely on the actual innocence gateway to excuse his default. Id. at 459. The new evidence Jones brought to bear on his case was exceptional. Michael Stone, another man present at the murder scene, provided new testimony that he was the lone shooter. Id. at 460. And his testimony was compelling.Stone had previously turned himself in for the crime, confessed to the shooting within days, identi fi ed the murder weapon, and given testimony that was consistent with the case’s forensic evidence. Id. at 462. Stone’s story of the shooting had also remained consistent for over a decade. Id. at 463. The district court found a su ffi cient showing of actual innocence, and this court agreed. Id. at 460, 462.

In Jones , the new witness took the stand and personally claimed sole responsibility for the crime. Id. at 462. His testimony was consistent with the physical evidence as well, whereas the testimony of prosecution witnesses in that case was often in tension with the forensics. Id. The Wallace26 No. 21-1402

evidence is not so forceful. Her eyewitness testimony contrasts with that of Smith-Currin and King (and to a lesser degree, Coats and Ross), but likely would not overcome it in the minds of reasonable jurors. Reviewing all the facts, Wilson has not demonstrated “that more likely than not, in light of the new evidence, no reasonable juror would fi nd him guilty beyond a reasonable doubt.” House, 547 U.S. at 538. Accordingly, Wilson has not su ffi ciently shown actual innocence.

IV Given the unexcused procedural default, we do not reach the merits of Wilson’s ine ff ective assistance of trial and postconviction counsel claims. In summary, Wisconsin state courts disposed of Wilson’s ine ff ective assistance of trial co unsel claim on adequate andindependent state grounds, and he failed to present his ineffective assistance of postconv iction counsel claim for one complete round of state court review. So, both of his claims are procedurally defaulted. Wilson a tt empts to overcome these defaults, but he fails to make a su ffi cient showing of actual innocence. Even considering Wallace’s testimony, wecannot conclude that it is more likely than not that no reasonable juror would have convicted Wilson. The Schlup standard for actual innocence is high and reserved for the exceptional case, a threshold Wilson does not clear here. For these reasons, the district court’s denial of Wilson’s petition for federal habeas relief is A FFIRMED

.No. 21-1402 27

H AMILTON , Circuit Judge, dissenting. During post-conviction hearings in the state courts, Lakisha Wallace testi fi ed that the shooter was actually AntwanSmith-Currin, who was alsothe state’s chief witness against petitioner Wilson. Ms. Wallace witnessed the incident from the bo tt om fl oor of the duplex where she lived downstairs from Smith-Currin. She testi fi ed that she heard Smith-Currin yell to his brother to give him a gun and then saw Smith-Currin wave a handgun on the front porch of the duplex, open fi re, and run into the crowd while shooting. According to Ms. Wallace, Smith-Currin immediately came back inside and shouted to his brother that he had “just o ff ed” someone. Ms. Wallace further testi fi ed that in the days after the shooting, she heard Smith-Currin say that he planned to blame the crime on Wilson. She also o ff ered a plausible motive for the plan to blame Wilson. Smith-Currin had seen his girlfriend with Wilson on the duplex porch theday before the shooting and was angry about them being together.The extraordinary feature of this habeas case is the combination of two facts. First, the state agreed during state court proceedings that “[i]t is reasonably probable that if a jury

were to fi nd Ms. Wallace credible, her testimony would create a reasonable doubt about whether Wilson was the shooter.” Second, when Ms. Wallace actually testi fi ed before a statecourt judge, that judge found her credible. Under these unusual circumstances, and given other signi fi cant weaknesses in the state’s case, we should fi nd that Wilson has made a showing of innocence su ffi cient to excuse his procedural default. We should remand to the district court for an evidentiary hearing on his claims of ine ff ective assistance of counsel.28 No. 21-1402

My colleagues and I agree on all but that one decisive issue. As the majority opinion e xplains, under Wisconsin’s unusual procedures for post-conviction relief, Wilson had a federal constitutional right to e ff ective assistance of counsel in post-trial proceedings under Wisconsin Statute § 974.02. Ante at 16, citing Lee-Kendrick v. Eckstein , 38 F.4th 581, 587 (7th Cir. 2022). We also agree that Wilson procedurally defaulted his ine ff ective assistance claims in the state courts. Ante at 17.Where we disagree is whether Wilson has shown “actual innocence” so as to excuse his procedural default.To avoid the consequences of his procedural default, Wilson o ff ers the testimony of Lakisha Wallace to show that he is actually innocent. See generally Sawyer v. Whitley, 505 U.S. 333, 339 (1992); Blackmon v. Williams , 823 F.3d 1088, 1099 (7th Cir. 2016). To do so, Wilsonmust come forward with newevidence showing “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” Schlup v. Delo , 513 U.S. 298, 327 (1995); see also McQuiggin v. Perkins , 569 U.S. 383, 386, 390 (2013). His evidence must be reliable and may take the form of “exculpatory scienti fi c evidence, trustworthy eyewitness accounts , or critical physical evidence.” Gladney v. Pollard, 799 F.3d 889, 896 (7th Cir. 2015) (emphasis added), quoting Schlup , 513 U.S. at 324. In applying this test, it is essential to remember that the hypothetical jurors would have to examine all the new and old evidence and be convinced of guilt beyond a reasonable doubt . The reasonable doubt lens was, after all, the point of the Supreme Court’s decision in the canonical Jackson v. Virginia , 443 U.S. 307, 318–21 (1979) (issue in federal habeas review was not whether “any evidence” supported the state convictionNo. 21-1402 29

but whether evidence could support fi nding of guilt beyond a reasonable doubt).The actual innocence standard for excusing procedural default also puts proof beyond a reasonable doubt front and center, but with one important di ff erence. The issue here is not what a reasonable juror “could do,” as in Jackson , but what a reasonable juror “would do” when applying the reasonable doubt test. The Supreme Court has rephrased the applicable standard (“to remove the double negative”) as requiring newevidence making it “more likely than not [that] any reasonable juror would have reasonable doubt.” House v. Bell , 547 U.S. 518, 538 (2006) (emphasis added); accord, Schlup , 513 U.S. at 327. As I read this record, including Ms. Wallace’s testimony credited by the state court, there is some evidence to support

a fi nding of guilt, but, as required by House and Schlup , any reasonable juror would have a reasonable doubt once Ms. Wallace’s testimony is added to the mix. 1 As the majority opinion presents the facts, Wilson’s trial for the fatal shooting of Melvin Williams presented testimony from four eyewitnesses who identi fi ed Wilson as the shooter. From that premise, the majority opinion relies on a portion of our decision in Blackmon where we held that new exculpatorytestimony from two eyewitnesses was not enough to overcome procedural default. 823 F.3d at 1102. The key to that portion of Blackmon was that Blackmon had been identi fi ed as one

1 The amendments to the majority opinion have changed several claims about what jurors “could” think in light of the new evidence to what they “would” think. Those changes do not adequately come to grips with the likelihood of a reasonable person reaching such conclusions or jurors’ obligation to demand proofbeyond a reasonable doubt.30 No. 21-1402

of two killers independently, and consistently, by two u tt erly neutral witnesses. Id . at 1101–02. 2

Unlike the Blackmon case, Wilson has also o ff ered new evidence that not only ex onerates him but identi fi es a di ff erent shooter, the state’s chief wi tness. In applying the Schlup standard, which may be met by “t rustworthy eyewitness accounts,” keep in mind that th e state judge who heard Ms. Wallace testify, subject to lengthy cross-examination, credited her testimony. Plus, the original trial testimony here was far shakier than in Blackmon

. No witness consistently identi fi ed Wilson as the shooter. The majority opinion leaves out the important fact that the two government witnesses who identi fi ed Wilson at trial, King and Smith-Currin, sp oke to police on the night of the shooting. Both knew Wilson at the time. Yet neither claimed that night that they had even seen Wilson on the scene, let alone doing the shooting. 3 That night, Shakira King told police that she had heard another woman claiming Wilson wa s the shooter. By the time of

2 We remanded Blackmon for an evidentiary hearing on other grounds,namely his claim that counsel was ineffective in failing to investigate adequately his alibi defense. 823 F.3d at 1104–07. After remand, Mr. Blackmon won habeas relief on that basis. Blackmon v. Pfister , 2018 WL 741390 (N.D. Ill. Feb. 7, 2018).

3 The fact that both witnesses knew Wilson prior to the shooting is important. The majority opinion states correctly that King and Smith-Currin later identified Wilson as the gunman out of photo lineups, and themajority opinion treats this procedure as adding credibility to the identifications. The weight of those later lineups is undermined by the facts that both already knew him and that neither identified Wilson as the shooter when first interviewed by police.No. 21-1402 31

trial, however, King’s story had changed. She testi fi ed that she herself saw Wilson shooting, and she denied having told an

o ffi cer on the night of the shooting that it was her friend who claimed to have recognized the shooter as Wilson. King’s trial testimony also contradicted her fi rst description of the shooter’s hairstyle. Her description of the shooter’s clothing did not match that given by any other witness. And at trial King denied having been part of the fi ght that preceded the shooting, though she had previously admi tt ed involvement to police and other witnesses had con fi rmed her part in the melee. Moving to Smith-Currin, he di d not tell police that he saw Wilson shooting until a month after the crime. On the night of the shooting, Smith-Currin sp oke with police but did not mention Wilson. Smith-Currin’s trial testimony describing what he saw the shooter wearing was inconsistent. And at a preliminary hearing, Smit h-Currin even testi fi ed that some people claimed they had seen him shooting from the duplex’s porch.The two other witnesses who the state argued had previously identi fi ed Wilson as the shooter strongly refuted or recanted such statements at trial. Sanntanna Ross told the jury that what police construed as her identifying Wilson as the shooter was simply her indicating that she knew Wilson. When asked on the stand whether she saw Wilson shooting, Ross unequivocally said no. Samantha Coats told the jury that her prior identi fi cation of Wilson as the shooter was based only on rumors. When Coats was pressed for an identi fi cation by police during the investigatio n, she said, her boyfriend was in custody and she had been th reatened with arrest herself. She chose Wilson (whom she knew and recognized) in a32 No. 21-1402

photo lineup to avoid arrest and in the hope that the police would release her boyfriend.Only by failing to grapple with these details can the majority opinion describe the testimony implicating Wilson as “matching testimony ... delivered at trial and without qualifi cation ... .” Ante at 21.If a jury heard all the trial evidence and Ms. Wallace’s testimony, there would of course still be the trial testimony of Smith-Currin and King identi fying Wilson as the shooter. That’s “some evidence”—but that low bar was the standard rejected even in Jackson . Given the problems with their testimony—including their delayed identi fi cations of a person they knew as the shooter they claimed to have seen that night—the lack of any other ev idence placing Wilson at the scene, and the consistent and cr edible testimony of Ms. Wallace, a conscientious juror could not and would not reasonably fi nd Wilson guilty beyond a reasonable doubt. The majority nevertheless insists that “even with Wallace’s testimony, we are left with a series of competing eyewitnessaccounts, the balance of which would strongly point to Wilson’s guilt for reasonable jurors.” Ante at 22. With respect, that description of the “balan ce” of the prosecution’s case overlooks three critical points : (1) no witness consistently identi fi ed Wilson as the shooter; (2 ) the prosecution witnesses gave widely varying descriptions of the shooter; and (3) no physical evidence pointed to Wilson as the shooter. When weadd Ms. Wallace’s credible (as the state court found) and consistent account in which Smith-Currin was the shooter and had a motive to blame Wilson, conscientious jurors would have to doubt whether Wilson was guilty.No. 21-1402 33

The majority opinion also sugge sts that Ms. Wallace’s testimony does not necessarily exculpate Wilson because there might have been more than one shooter. Ante at 22. Perhaps both Smith-Currin and Wilson, and even others, were armed and fi red shots? The principal proble m with this possibility is that it would make it even harder to convince a jury beyond a reasonable doubt that Wilson was the one who shot the victims. The state prosecuted Wilsonon the theory that there was one shooter and that he was the one. The new, more complex, and untested theory of multiple shooters invites speculation. It does not o ff er a solid basis for denying relief. The test for actual innocence is demanding, and cases of proven actual innocence are relatively rare. In my view, thisis one of those rare cases. I am not saying that Wilson is entitled to a new trial based on his as-yet-unproven claims of ine ff ective assistance of counsel. Bu t I believe he is entitled to a hearing to try to prove them. I respectfully dissent.