### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 20

‐ 3253

D AVID M INNICK

,

Petitioner

‐ Appellant

,

v.

D AN W INKLESKI

, Warden,

Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 19

‐ CV

‐ 33

— William E. Duffin

, Magistrate Judge

.

____________________

A RGUED M AY 12, 2021— D ECIDED S EPTEMBER 21, 2021

____________________

Before F LAUM

, H AMILTON

, and B RENNAN

, Circuit Judges

.

B RENNAN

, Circuit Judge

. David Minnick pleaded no contest

in Wisconsin state court to several crimes that resulted from a

violent confrontation involving his then

‐ wife. He received

sentences totaling 27 years of initial con fi nement. Since then,

Minnick has brought a series of unsuccessful challenges to his

convictions in state and federal courts.2 No. 20

‐ 3253

The district court denied Minnick’s request for federal ha

‐

beas relief under 28 U.S.C. § 2254. That court decided that

Minnick’s trial counsel was not ine ff ective for advising him

that a term of not more than ten years of initial con fi nement

was likely. The court also ruled that Minnick did not show

that any reasonable trial counsel would have advised him of

the possibility of withdrawing his no contest pleas before sen

‐ tencing. So not o ff ering that argument did not deny Minnick

the right to e ff ective postconviction counsel.

Although Minnick’s claims could have been analyzed dif

‐ ferently—including whethe r the state court’s decision on his

trial counsel’s sentencing advice warranted deference under

the Antiterrorism and E ff ective Death Penalty Act (AEDPA),

28 U.S.C. § 2254—the correct result was reached. We a ffi rm

the denial of habeas relief.

I

When David Minnick’s wife told him she was leaving him

for another man, Minnick retriev ed a ri fl e and struck her in

the head. She fl ed to her parents’ house across the street, and

Minnick followed, fi ring several shots. He tried to break down

the door of his in

‐ laws’ house, broke windows, and shot in

‐

side the house, grazing his father

‐ in

‐ law. As a result, Mi nnick

was charged in Kenosha County Circuit Court with aggra

‐

vated ba tt ery, a tt empted fi rst

‐ degree murder, and several

counts of fi rst

‐ degree reckless endangerment and a tt empted

burglary, all while using a dangerous weapon.

Minnick initially pleaded not guilty by reason of mental

disease or defect, arguing that his actions were rooted in the

post

‐ traumatic stress disorder from which he su ff ers. He later

withdrew that plea and agreed to plead no contest to theNo. 20

‐ 3253 3

crimes (except for the a tt empted murder charge, which was

dismissed and read

‐ in) and leave sentencing up to the court.

This exposed Minnick to 73 years of initial con fi nement. 1 The

presentence investigation report recommended Minnick re

‐

ceive between 16 and 221⁄2 years of initial con fi nement. At the

sentencing hearing, the state asked for 45 years of initial con

‐

fi nement, and Minnick’s trial counsel, Laura Walker, asked

for 4 years. The trial court sentenced Minnick to 27 years of

initial con fi nement followed by 14 y ears of extended supervi

‐

sion.

Minnick appealed that sentence, arguing (by his postcon

‐

viction counsel Michael Zell) that he should be able to with

‐

draw his no contest pleas because he received ine ff ective

assistance of counsel. An a tt orney is constitutionally ine ff ec

‐

tive if she performs de fi ciently and this performance preju

‐

dices her client. See Strickland v. Washington

, 466 U.S. 668, 687

(1984). Minnick argued Walker met this standard because she

improperly guaranteed and unreasonably estimated that he

would receive a much shorter sentence.

The state trial court held a hearing at which Minnick and

Walke r testi fi ed. 2 The court found Walker credible that she

did not guarantee Minnick a certain sentence length, and that

1 Under Wisconsin’s determinate criminal sentencing structure, a

bifurcated sentence consists of an initial term of confinement in prison fol

‐

lowed by a term of extended supervision in the community. See Wis. Stat.

973.01(2); Thomas J. Hammer, The Long and Arduous Journey to Truth

‐ in

‐ Sentencing in Wisconsin

, 15 F ED

. S ENT ’ G R EP

. 15 (2002).

2 In Wisconsin’s postconviction process, an offender’s initial step in

challenging a sentence is a postconviction motion filed under Wis. Stat.

§ 974.02, which allows the trial court the first opportunity to consider cer

‐

tain challenges. See Page v. Frank

, 343 F.3d 901, 905–06 (7th Cir. 2003).4 No. 20

‐ 3253

Minnick knew Walker provided only an estimate. At the hear

‐ ing, a friend of Minnick’s also testi fi ed he had spoken with

Walker, who asked the friend to convince Minnick to take the

plea. Walker responded in her testimony that Minnick knew

his sentence was ultimately up to the judge and that she al

‐

ways quali fi ed her statements to Minnick about the length of

his sentence by emphasizing that her estimate was not a guar

‐

antee. The state court ruled against Minnick and declined to

let him withdraw his no contest pleas.

The Wisconsin Court of Appeals a ffi rmed this decision in

2015. That court ruled: “Minnick has shown no more tha n that

counsel predicted an outcome that did not come to pass. Her

misjudgment of the likely sentence is not a basis for an inef

‐

fective assistance of counsel claim,

... .” The Wisconsin

Supreme Court and the Supreme Court of the United States

denied review.

Minnick then fi led a collateral a tt ack in state court under

Wis. Stat. § 974.06, alleging that Walker was constitutionally

ine ff ective because she failed to advise him that he could

withdraw his no contest pleas before sentencing if he pro

‐

vided a “fair and just reason.” Because Minnick had not raised

this claim in his fi rst a ppeal, he argued the state court could

consider it because his postconviction counsel Zell was con

‐ stitutionally ine ff ective for not raising it. When Walker

learned that the presentence investigation report recom

‐

mended a sentencing range exceeding what she had advised,

Minnick argued, she should have informed him that he could

have moved to withdraw his no contest pleas. 3

3 Under Wisconsin law, a presentencing plea withdrawal motion is

considered under a “fair and just reason” standard, State v. Jenkins

, 736No. 20

‐ 3253 5

For habeas petitioners who allege they received ine ff ective

assistance of postconviction counsel because an issue was not

raised, Wisconsin employs a “clearly stronger” standard to

evaluate counsel’s performance under Strickland

. See State v.

Romero

‐ Georgana

, 849 N.W.2d 668, 672, 679 (Wis. 2014) (citing

State v. Starks

, 833 N.W .2d 146 (Wis. 2013)). Under that stand

‐

ard, “the defendant must show that a particular nonfrivolous

issue was clearly stronger than issues that counsel did present.”

Starks

, 833 N.W.2d at 163 (internal quotation marks omi tt ed).

The state court held a hearing on Minnick’s motion. Zell

testi fi ed that the claim he raised about Walke r’s sentence esti

‐

mate was stronger than arguing Walker was ine ff ective for not

advising Minnick about presentence plea withdrawal. Zell ex

‐ plained that witnesses could testify about Walker’s advice to

Minnick about the likely sentence. In contrast, given the rec

‐

ord, Zell had concerns that a plea withdrawal motion was not

we ll

‐ founded. The state court agreed and denied this motion.

In 2018 Minnick appealed that denial to the Wisconsin

Court of Appeals. That court noted how Minnick’s appeal was

premised on the same scenario it had rejected three years ear

‐

lier that Walker’s misjudgment of a likely sentence was a basis

for an ine ff ective assistance of counsel claim. The appeals

court concluded that Zell had not performed de fi ciently, rul

‐ ing that the plea withdrawal argument was not clearly

stronger than the argument Zell o ff ered. Zell was aware of the

law underlying a plea withdrawal motion, and more factors

favored the claim Zell made that Wa lker had misled Minnick

N.W.2d 24, 33 (Wis. 2007), while such a motion made after sentencing plea

is evaluated under a “manifest injustice” standard. State v. Negrete

, 819

N.W.2d 749, 755 (Wis. 2012).6 No. 20

‐ 3253

concerning his possible sentence than supported an ine ff ec

‐

tiveness claim that Walker failed to counsel Minnick to

withdraw his pleas before sentencing. Minnick also was not

prejudiced, the appeals court ruled, because sentencing was

at the discretion of the trial judge and the presentence inves

‐ tigation report did not alter that. The Wi sconsin Supreme

Court denied review of Minnick’s collateral a tt ack.

Minnick then fi led this federal habeas corpus petition un

‐

der 28 U.S.C. § 2254. His petition alleged:

1. Walker was ine ff ective for saying that if Min

‐

nick accepted the plea deal, he would re

‐

ceive only ten years of initial con fi nement;

2. Walker was ine ff ective for not advising Min

‐

nick that he could withdraw his plea before

sentencing; and

3. Zell was ine ff ective for not making the plea

withdrawal argument in Minnick’s fi rst ap

‐ peal.

On the fi rst claim, the district court concluded that Minnick

did not make this argument in the state court of appeals, so it

could be considered only because the state conceded that

Minnick met the exhaustion requirement for habeas petitions.

This led the district court to conclude that the Wisconsin

Court of Appeals had not adjudicated the fi rst claim on the

merits, and that as a result, its deci sion was not entitled to def

‐

erence under AEDPA. Even under de novo review, though,

the district court denied the fi rst claim because Walker had

not shown bad faith, her estimate was not inconsistent with

other cases, and there was no suggestion that her estima te was

a gross misjudgment.No. 20

‐ 3253 7

The district court reviewed the second claim through the

lens of ine ff ective assistance of appellate counsel. But, inscru

‐ tably, that court determined the government had waived any

argument that Minnick had procedurally defaulted this sec

‐

ond claim. So the district court essentially analyzed Minnick’s

second and third claims together. On these claims, the district

court concluded that AEDPA deference applied because the

W isconsin Court of Appeals adjudicated the ine ff ective

assistance of postconviction counsel claim on the merits. Ac

‐ cording to the district court, Minnick could not have been

prejudiced by postconviction counsel’s failure because Min

‐

nick could not show he would have move d to withdraw his

pleas, or that he would have succeeded in withdrawing his

plea if he had been advised to do so.

So the district court denied Minnick’s petition, but it is

‐

sued a certi fi cate of appealability on two issues: whether Min

‐

nick was denied e ff ective assistance of counsel ba sed on

Walker’s sentence estimate, and by Zell’s failure to make the

plea withdrawal argument.

II

We fi rst examine whether Minnick is entitled to habeas

relief for his claim that his trial counsel Walker was constitu

‐ tionally ine ff ective when she told Minnick he was “likely” to

receiv e no more than ten years of initial con fi nement. The dis

‐

trict court answered this question in the negative. We review

that determination, as we do all the district court’s decisions

on Minnick’s petition, de novo. Maier v. Smith

, 912 F.3d 1064,

1069 (7th Cir. 2019).

A8 No. 20

‐ 3253

On this fi rst claim, the district court concluded that the

deferential standard of AEDPA does not apply. A threshold

question is whether that decision is correct. AEDPA deference

applies only to claims in habeas petitions that were adjudi

‐

cated on the merits in state court. Adorno v. Melvin

, 876 F.3d

917, 921 (7t h Cir. 2017). We presume a state court adjudicated

a claim on the merits unless the state court relied wholly on

state law grounds for its decision or expressly declined to con

‐

sider the claim. Win fi eld v. Dorethy

, 871 F.3d 555, 560 (7th Cir.

2017).

The district court construed Minnick’s claim in the state

court that he was “guaranteed” a certain sentence as di ff erent

from his fi rst claim here that Walker’s advice as to the likely

sentence constituted ine ff ective assistance. If Minnick’s claim

was not presented to the state court—as the district court be

‐

lieved—it could not hav e been adjudicated on the merits, as

required for AEDPA deference. Win fi eld

, 871 F.3d at 560. Gen

‐ erally, a claim not raised in the state appellate court would be

an unexhausted claim that a district court could not consider

on collateral review. See 28 U.S.C. § 2254. But according to the

district court, because the state conceded that there was no

exhaustion issue, the district court had to consider this claim

so it conducted de novo review.

We do not agree with the district court that the Wisconsin

Court of Appeals did not adjudicate Minnick’s first clai m on

the merits. The state appeals court not only concluded that

Walker did not make a guarantee to Minnick about the length

of his sentence, but it expressly ruled that Walker’s misjudg

‐

ment of the likely sentence was not ineffective assistance of

counsel. For the purpose of habeas review, there is no func

‐

tional distinction between Minnick complaining about aNo. 20

‐ 3253 9

“guarantee” and about “advice.” Walker offered her opinion

about what sentence Minnick would receive. However her

opinion is characterized—a “guarantee,” a “likely outcome,”

an “estimate,” or a “prediction”—it was her counsel to Min

‐

nick, which the Wisconsin Court of Appeals ruled was not in

‐

effective.

The state appeals court did not rely wholly on state law

grounds for its decision or expressly decline to consider the

claim, so the presumption of adjudication on the merits con

‐

trols. We conclude that AEDPA deference applies to the Wis

‐

consin Court of Appeals’ resolution on Minnick’s first claim.

B

Resolving this threshold question leads us to recall what

AEDPA deference me ans. Minnick’s appeal comes to us as a

collateral a tt ack on a state court judgment. Under AEDPA’s

strict standard of review, federal courts defer to state court

decisions. By its text, AEDPA precludes a federal court from

granting a state prisoner’s habeas petition unless th e state

court’s merits adjudication “resulted in a decision that was

contrary to

, or involved an unreasonable application of

, clearly

established Federal law, as determined by the Supreme Court

of the United States.” 28 U.S.C. § 2254(d)(1) (emphases

added). “Section 2254(d) re fl ects the view that habeas corpus

is a ‘guard against extreme malfunctions in the state criminal

justice systems,’ not a substitute for ordinary error correction

through appeal.” Harrington v. Richter

, 562 U.S. 86, 102–03

(2011) (quoting Jackson v. Virginia

, 443 U.S. 307, 332 n.5 (1979)

(Stevens, J., concurring in judgment)). This standard is “di ffi‐

cult to meet and highly deferential.” Makiel v. Butler

, 782 F.3d

882, 896 (7th Cir. 2015) (internal quotation marks omi tt ed). Re

‐

lief is precluded “so long as fairminded jurists could disagree10 No. 20

‐ 3253

on the correctness of the state court’s decision.” Harrington

,

562 U.S. at 101 (internal quotation marks omi tt ed).

AEDPA’s strictness is grounded in comity. “AEDPA rec

‐ ognizes a foundational principle of our federal system: State

courts are adequate forums for the vindication of federal

rights.” Burt v. Titlow

, 571 U.S. 12, 19 (2013). “AEDPA’s re

‐ quirements re fl ect a ‘presumption that state courts know and

follow the law.’” Woods v. Donald

, 575 U.S. 312, 316 (2015)

(quoting Woodford v. Viscio tt i

, 537 U.S. 19, 24 (2002) (per cu

‐

riam)). “When reviewing state criminal convictions on collat

‐

eral review, federal judges are required to a ff ord state courts

due respect by overturning their decisions only when there

could be no reasonable dispute that they were wrong.” Woods

,

575 U.S. at 316. This is particularly true when state courts ad

‐ judicate ine ff ective assistance of counsel claims. Titlow

, 571

U.S. at 19.

For an ine ff ective assistance of counse l claim such as this,

“[t]he federal courts as a whole engage in ‘doubly deferential’

review” under AEDPA. Wilborn v. Jones

, 964 F.3d 618, 620 (7th

Cir. 2020) (quoting Knowles v. Mirzayance

, 556 U.S. 111, 123

(2009)). Deference is layered upon deference in these cases be

‐

cause federa l courts must give “both the state court and the

defense a tt orney the bene fi t of the doubt.” Titlow

, 571 U.S. at

15. Even without AEDPA, ine ff ective assistance of counsel

claims remain di ffi cult to prove, as “counsel is strongly pre

‐

sumed to have rendered adequate assistance and mad e all

signi fi cant decisions in the exercise of reasonable professional

judgment.” Strickland

, 466 U.S. at 690. “That hill is even

steeper” for claims governed by AEDPA. Myers v. Neal

, 975

F.3d 611, 620 (7th Cir. 2020).No. 20

‐ 3253 11

A claim for constitutionally ine ff ective assistance of coun

‐

sel during the plea process is governed by the Strickland

standard. See La fl er v. Cooper

, 566 U.S. 156, 162–63 (2012). To

be de fi cient, counsel’s performance must be unreasonable

such that “counsel was not functioning as the counsel guar

‐

anteed the defendant by the Sixth Amendment.” Strickland

,

466 U.S. at 687 (internal quotation marks omi tt ed). In the plea

‐ bargaining context, the prejudice prong is satis fi ed if “there is

a reasonable probability that, but for counsel’s errors, the

[petitioner] would not have pleaded guilty and would have

insisted on going to trial.” La fl er 566 U.S. at 163 (internal quo

‐

tation marks omi tt ed). There is “a strong presumption that

counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland 466 U.S. at 689.

C

A petitioner’s habeas claim is considered against the last

reasoned state court decision on the merits. Wilson v. Sellers

,

138 S. Ct. 1188, 1192 (2018); Makiel 782 F.3d at 896. For this fi rst

claim, that is the 2015 decision of the Wisconsin Court of Ap

‐ peals on direct appeal. That court rested its analysis on the

de fi cient performance prong of Strickland

, so we con fi ne our

analysis to that prong.

Minnick argues that by applying a categorical rule, the

reasoning of the Wisconsin Court of Appeals was contrary to

Strickland

. According to Minnick, this rule was that an a tt or

‐ ney’s sentence miscalculations could never result in constitu

‐ tionally de fi cient performance. True, the Supreme Court has

instructed that Strickland requires a “circumstance

‐ speci fi c

reasonableness inquiry,” Roe v. Flores

‐ Ortega

, 528 U.S. 470, 478

(2000). But the reasoning of the Wisconsin Court of Appeals

was very similar to the standard this court has applied in12 No. 20

‐ 3253

analogous cases, and which we do not read as a categorical

rule. This court has stated that “a mistaken prediction is not

enough in itself to show de fi cient performance” because “the

sentencing consequences of guilty pleas (or, for that ma tt er,

guilty verdicts) are extraordinarily di ffi cult to predict.” United

States v. Barnes

, 83 F.3d 934, 940 (7th Cir. 1996); see also

Bridgeman v. United States

, 229 F.3d 589, 592 (7th Cir. 2000)

(“[C]ounsel’s alleged miscalculation, standing alone, could

never su ffi ce to demonstrate de fi cient performance unless the

inaccurate advice resulted from the a tt orney’s failure to un

‐

dertake a good

‐ faith analys is of all of the relevant facts and

applicable legal principles.”). Still, a miscalculation might

constitute de fi cient performance if it is a gross miscalculation

and there is evidence of the a tt orney’s bad faith. Id. ; see also

United States v. Martinez

, 169 F.3d 1049, 1053 (7th Cir. 1999).

In its 2015 opinion, the Wi sconsin appeals court did not

include the phrases “in itself” or “standing alone.” Even so,

its decision can reasonably be interpreted as describing a sim

‐

ilar standard. Nothing in Minnick’s case required the state ap

‐ peals court to explain that a miscalculation mi ght be grounds

for de fi cient performance if there was evidence of bad faith.

Further, Minnick did not present any evidence—besides the

incorrectly estimated sentence—to suggest that Walker per

‐

formed de fi ciently.

The Wisconsin Court of Appeals determined that Minnick

knew at sentencing that the state court could impose the max

‐

imum sentences, as well as that the term of initial con fi nement

which Walker opined Minnick would receive was not a guar

‐

antee. Minnick cites Walker’s newness to legal practice (two

years of experience when she represented Minnick) and the

di ff erence between the initial con fi nement term she estimatedNo. 20

‐ 3253 13

and the range in the presentence investigation report (10 years

versus 16–221⁄2 years) and contends Walker acted unreasona

‐ bly in her prediction. But Walker had worked on hundreds of

criminal cases before Minnick’s, including shooting cases,

and the federal district court provided examples of cases in

which defendants facing similar charges to Minnick’s re

‐

ceived sentences that were within the range that Wa lker pre

‐

dicted. And the state court did not conclude or suggest facts

that showed bad faith on Walker’s part in making her predic

‐

tion. Even more, Walker gave reasons for her prediction in the

state court. She believed that because Minnick had no crimi

‐

nal record, was 45 years of age, and was a military veteran

that he would receive a sentence far less severe than the max

‐

imum.

Although Supreme Court decisions provide the relevant

lodestar for cases under AEDPA review, if a state court’s rea

‐ soning largely follows circuit precedent, that is persuasive ev

‐

idence the state court did not im properly apply the Supreme

Court caselaw. See Thill v. Richardson

, 996 F.3d 469, 477 (7th

Cir. 2021) (“This ambiguity is not enough to demonstrate that

the court applied a standard contrary to clearly established

federal law.”) (internal quotation marks omi tt ed). Because the

Wi sconsin Court of Appeals’ resolution of this case was con

‐

sistent with this court’s precedent, its decision was not con

‐

trary to, or an unreasonable application of Strickland

. What is

more, that a sentence miscalculation is not enough by itself to

demonstrate de fi cient performance is consistent with Strick

‐

land ’s presumption of deference to a tt orneys.

The state appeals court did not unreasonably apply

Strickland when it concluded that Walker’s misjudgment of

Minnick’s likely sentence length, without more, could not14 No. 20

‐ 3253

establish de fi cient performance. Under AEDPA, that decision

is due deference. So relief is not available to Minnick on his

fi rst claim.

III

A

The district court handled Minnick’s second and third

claims in tandem. Because the Wisconsin Court of Appeals

viewed Minnick’s second claim against Walker through the

prism of his third claim for ine ff ective assistance of postcon

‐

viction counsel, the district court reasoned that it must do so

as well. Yet, incongruously, the district court also rejected the

argument that Minnick’s second claim against Walker was

procedurally defaulted, concluding that the government had

waived that argument by failing to mention it in its opening

brief. That reasoning is contradictory. If Minnick’s second

claim was not procedurally defaulted, the question is whether

the Wisconsin Court Appeals adjudicated that claim on the

merits. If, however, this second claim was procedurally de

‐

faulted, then only Minnick’s third claim for ine ff ective assis

‐

tance of postconviction counsel would remain. What cannot

be true is that Minnick both did not procedurally default his

second claim and that we view it only in the context of his

third claim.

We address this contradiction by examining only Min

‐

nick’s third claim for ine ff ective assistance of postconviction

counsel. Although th is is what the district court did as well,

we do so for di ff erent reasons. The third claim is included in

the certi fi cate of appealability, our charge for this appeal. In

addition, although the district court concluded that the gov

‐

ernment waived the procedural default argument, that courtNo. 20

‐ 3253 15

essentially treated Minnick’s second claim—that Walker was

ine ff ective for not advising Minnick that he could withdraw

his plea before sentencing—as procedurally defaulted by not

viewing the claim on its own terms and by granting the cer

‐

ti fi cate of appealability on the third claim. The parties also ap

‐

pear to trea t the second claim as procedurally defaulted, and

they focus their arguments on the third claim. So we turn to

the merits of that third claim.

B

Minnick’s claim of ine ff ective assistance of postconviction

counsel is also subject to the double deference of Strickland

and AEDPA. See Shaw v. Wilson

, 721 F.3d 908, 914 (7th Cir.

2013) ( Strickland standard governs ine ff ective assistance of ap

‐ pellate counsel). Initially, Minnick argues that the Wisconsin

Court of Appeals applied the wrong standard when it limited

its de fi ciency inquiry to whether the claim Zell failed to press

was clearly stronger than the argument he raised. Pe r Min

‐

nick, that standard applies only to postconviction counsel’s

intentional decisions, not oversight, which Minnick submits

was the case here based on Zell’s testimony.

Nevertheless, the Supreme Court and this court employ

that same standard. See Davila v. Davis, 137 S. Ct. 2058, 2067

(2017) (“Declining to raise a claim on appeal, therefore, is not

de fi cient performance unless that claim was plainly stronger

than those actually presented to the appellate court.”);

Ramirez v. Tegels

, 963 F.3d 604, 613 (7th Cir. 2020) (noting that

if an a tt orney “abandoned a nonfrivolous claim that was both

‘obvious’ and ‘clearly stronger’ than the claim[s] that [s ]he ac

‐ tually presented, [her] performance was de fi cient, unless

[her] choice had a strategic justi fi cation”); Makiel

, 782 F.3d at

898. These authorities do not admit of the distinction Minnick16 No. 20

‐ 3253

advances between intent and negligence in postconviction

counsel’s decision making. See id. (at evidentiary hearing

appellate counsel “testi fi ed that she could not remember spe

‐

ci fi cally considering and rejecting these issues.”) (internal

quotation marks omi tt ed). As the district court recognized,

the clearly stronger standard does not impermissibly add to

the Strickland test, but instead applies the de fi ciency prong in

the appellate context where counsel is encouraged to winnow

the issues selected for appeal. By applying the clearly stronger

standard, the Wisconsin Court of Appeals did not apply a test

that was contrary to clearly established law. Because the state

appeals court properly applied this standard, we limit our

analysis to the de fi cient performance prong of the Strickland

evaluation.

“[P]roving that an unraised claim is clearly stronger than

a claim that was raised is generally di ffi cult ‘because the com

‐ parative strength of two claims is usually debatable.’” Makiel

,

782 F.3d at 898. The Wisconsin Court of Appeals concluded

that the unraised plea withdrawal claim was not clearly

stronger than the challenge to Walker’s advice on Minnick’s

likely sentence, giving two reasons. The fi rst was its evalua

‐

tion of the underlying claim on Walker’s sentencing advice.

The second was Zell ’s understanding that Minnick would

have di ffi culty showing he had a “fair and just reason” for

withdrawing his plea before sentencing. See State v. Jenkins

,

736 N.W.2d 24, 33 (Wis. 2007) (applying “fair and just reason”

standard to plea withdrawals before sentencing). Under Zell’s

reasoning, Walke r did not perform de fi ciently in failing to ad

‐

vise Minnick to fi le such a motion. To the contrary, Minnick

would simply be expressing a desire to go to trial, which Wis

‐

consin precedent says does not qualify as such a fair and just

reason. See State v. Garcia

, 532 N.W.2d 111, 117 (W is. 1995) (“ANo. 20

‐ 3253 17

fair and just reason is some adequate reason for defendant ʹ s

change of heart

... other than the desire to have a trial.”) (in

‐

ternal quotation marks omi tt ed).

Minnick does not directly confront either of these reasons.

Rather, he contends his case is akin to those in which counsel

fail to consult their criminal defense client about the possibil

‐ ity of taking an appeal. But in those decisions, the strength of

the underlying claim is not the main consideration; inst ead

“counsel has a constitutionally imposed duty to consult with

the defendant about an appeal when there is reason to think

either (1) that a rational defendant would want to appeal (for

example, because there are nonfrivolous grounds for appeal),

or (2) that this particular defendant reasonably demonstrated

to counsel that he was interested in appealing.” Flores

‐ Ortega

,

528 U.S. at 480.

We are not persuaded by Minnick’s analogy to an a tt orney

failing to enter a notice of appeal. There, the proceedings end

if the defendant does not take an appeal; nothing is left for the

trial court to do. Here, the only change in circumstances Min

‐

nick suggests should have triggered Walker’s duty to advise

him to withdraw his pleas was the distribution of the presen

‐

tence investigation report. But such a report does not bind the

sentencing court. Everyone knew the latitude at sentencing

a ff orded to the prosecution—and, more importantly, to the

court—and Minnick con fi rmed this when he entered his no

contest pleas. Moreover, in instances too numerous to count,

a presentence investigation report recommends a sentence

longer than the term the sentencing court imposes. Under

Minnick’s argument, if a presentence investigation report or

the possibility of a lengthy sentence is su ffi cient basis to with

‐

draw a plea, that would invite substantial gamesmanship.18 No. 20

‐ 3253

Minnick also argues that the unraised plea withdrawal

claim was clearly stronger than Zell’s challenge to Walker’s

advice on Minnick’s likely sentence because a presentencing

plea withdrawal motion is reviewed under a more deferential

standard than if made after sentencing. But just because the

standards di ff er based on the timing of the motion does not

suggest which in e ff ective assistance of counsel claim is

stronger. What ma tt ers is whether Walker, when the motion

had to be made, acted reasonably in not advising Minnick to

make it. As noted above, there are reasons to conclude Walker

acted within the scope of competent counsel in not advising

Minnick to so move.

It is not clear that any presentence plea withdrawal motion

that Minnick made would have succeeded. At most, it is de

‐

batable whether such a motion is clearly stronger than the

sentencing advice argument Zell advanced. This case is not

like Shaw

, in which an essentially frivolous su ffi ciency

‐ of

‐ the

‐

evidence claim was raised, rather than counsel pressing a po

‐ tentially meritorious statutory claim. Shaw

, 721 F.3d at 915.

The state appeals court could reasonably conclude that

Walker would not think there was a fair and just reason for

Minnick to withdraw his no contest pleas at that stage of the

proceedings. No Wisco nsin authority expressly holds that

this circumstance constitutes a fair and just reason to with

‐

draw a plea. That renders weaker the unmade claim. Because

it is debatable whether the unraised claim was clearly

stronger, the state appeals court’s conclusion cannot be un

‐

reasonable.

Whether he would have succeeded in withdrawing his

pleas is beside the point, Minnick maintains, because he was

denied legal process. But at sentencing, the state court was notNo. 20

‐ 3253 19

bound by any previous recommendations, and Minnick could

argue that his sentence should be lower than the state or

presentence investigation report recommended. Minnick ad

‐

mits he was fully aware that the state court had full sentencing

discretion and that the ultimate disposition was up to the

court. These facts all suggest tha t the claim a tt orney Zell

raised on the sentencing advice was arguably stronger than

an unraised plea withdrawal request.

The Wisconsin Court of Appeals did not unreasonably ap

‐ ply the Strickland de fi cient

‐ performance prong when it con

‐

cluded that a plea withdrawal claim was not clearly stronger

than the argument that his postconviction counsel advanced.

That decision is due the further deference of AEDP A. For

these reasons, Minnick was not incorrectly denied relief on

this claim.

* * *

Minnick’s postconviction claims fall short, even more so

given the deferential AEDPA standard. Accordingly, we A F

‐

FIRM the judgment of the district court denying his request for

habeas relief.