In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-1164

CORY M. WELCH,

Petitioner-Appellant,

v.

RANDALL HEPP,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 12-CV-683 — Nancy Joseph, Magistrate Judge.

____________________

ARGUED APRIL 29, 2015 — DECIDED JULY 14, 2015

____________________

Before BAUER, MANION, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Cory Welch was convicted by a 

jury of eight counts of armed robbery, conspiracy, fleeing an 

officer, and misdemeanor bail-jumping. Forty-two witnesses 

testified against him, including twelve police officers. Two 

officers in their testimony referred to other criminal charges 

against Welch. After exhausting his appeals in the state 

courts, Welch filed a petition under 28 U.S.C. § 2254 asserting that the admission of those statements violated his right 
2 No. 14-1164

to a fair trial and that his counsel was ineffective for not contesting them. The district court denied relief.

The Wisconsin appellate court had concluded that any 

error in admitting the two officers’ statements would have 

been harmless because of the quantity and quality of evidence against Welch. We certified the fair-trial question for 

appeal under 28 U.S.C. § 2253(c). We conclude that the Wisconsin appellate court’s decisions on both the ineffectiveassistance and fair-trial issues were reasonable, so we affirm 

the district court’s judgment.

I. Factual and Procedural Background

For several weeks a band of armed men were robbing 

restaurants and businesses in a Milwaukee neighborhood. 

The robbers wore dark sweatshirts and ski masks, and carried backpacks or duffel bags. One night, police officers saw

three men approach a store. They wore dark clothing, with

hoods pulled down over their faces. One was carrying a 

backpack. One of the men attempted to enter the store while 

the other two flanked the building and watched the street. 

They found the doors locked and fled. As police officers pursued the men, two jumped into a running green Buick Skylark driven by yet a fourth person. The third would-be robber fled on foot.

The men in the car led police on a high-speed chase, but 

police soon arrested them and confiscated the car, which 

turned out to be registered to Welch. Other officers went in 

search of the man who had not made it into the getaway car. 

They discovered Welch hiding under a car near the store. 

Welch first told them he had been carjacked, but he later said

he had been “unwittingly duped into being the getaway 
No. 14-1164 3

driver.” State v. Welch, 800 N.W.2d 957, ¶ 25 (Wis. App. 2011) 

(Table). Police searched the car and discovered a backpack, 

two ski masks, two dark hooded sweatshirts, and a pair of 

leather gloves.

Welch eventually was charged with sixteen crimes stemming from the string of robberies. See Welch, 800 N.W.2d 

957, ¶ 2. The charges were severed into two trials. In his first 

trial, a jury found him guilty of all four counts. In the second 

trial—the one relevant to this appeal—a jury found him 

guilty of eight counts of armed robbery. The second trial 

took nine days. The jury heard testimony from three of 

Welch’s accomplices, five other witnesses who testified about 

details that linked him to the robberies, two forensic experts, 

twelve police officers, and twenty robbery victims. The accomplices identified Welch as a participant in five of the 

robberies. They also testified that Welch had bragged that he 

had committed 46 robberies, bought his car with robbery 

proceeds, and called it “the Moneymaker” because he used 

it to escape robberies.

A number of witnesses testified about how the robberies 

of their respective businesses occurred, including that they 

were committed by two black men—one of whom matched 

Welch’s height and weight—wearing ski masks and hoodies, 

and carrying duffel bags or backpacks. Witnesses also identified a green Buick Skylark at the scenes of the robberies.

Police officers testified that they had searched the car and 

found two ski masks inside. Forensic experts testified that 

both masks had DNA almost certainly belonging to Welch 

on them. One witness also testified that the robber shot at 

the floor during a robbery. A forensic expert later testified 

that shell casing found in the store matched the gun that 
4 No. 14-1164

Welch’s girlfriend testified he had taken from her and refused to give back. (The gun had been thrown out of “the 

Moneymaker” during the police chase but was later retrieved by police.)

During the second trial, two police officers, Officers 

Simmert and Huerta, made the statements that are the basis 

of this appeal. In response to questioning by defense counsel, Officer Simmert said: “Based on the things that I know 

about him, his character, the crimes that I know he’s committed, I took a look in the car to make sure that nothing was 

secreted.” Officer Huerta stated (incorrectly): “Yes, I believe

that we were in another proceeding with the defendant, 

Cory Welch, where he was on trial for about 11, 12 other 

robberies ... .” Neither side objected to these statements. 

After a series of appeals in state court, Welch moved for 

post-conviction relief on the grounds, as relevant here, that 

he was denied the right to a fair trial because the officers’ 

statements had been unfairly prejudicial, and that his trial 

and post-conviction counsel were ineffective for failing to 

move for a mistrial because the officers’ statements had deprived him of a fair trial. He asserted that the jury would 

have reached a different verdict absent those statements.

The Wisconsin appellate court denied relief. Welch, 800 

N.W.2d 957, ¶ 28. The court assumed for purposes of argument that defense counsel erred by failing to ask for a mistrial or raise the mistrial issue later, but found no prejudice, 

as would be needed for relief under Strickland v. Washington, 

466 U.S. 668, 687 (1984). Welch, 800 N.W.2d 957, ¶¶ 20–28. 

The court also evaluated whether the judge erred by allowing the evidence. Citing several cases from Wisconsin, see

State v. Williams, 644 N.W.2d 919, 931 (Wis. 2002), the court 
No. 14-1164 5

applied a harmless-error analysis and reviewed whether the 

error contributed to the conviction. Welch, 800 N.W.2d 957, 

¶¶ 22–28. The court cited the litany of evidence against 

Welch, including his changing story about why he was hiding under the car, his accomplices’ identifications of him as a 

co-conspirator, his bragging about committing the robberies, 

his DNA on the two ski masks, and his ownership of “the 

Moneymaker.” Welch, 800 N.W.2d 957, ¶¶ 23–28. The court 

concluded that if there was any error, it did not influence the 

verdict.

Welch petitioned in federal court for a writ of habeas 

corpus under 28 U.S.C. § 2254. The district court denied his 

petition and declined to issue a certificate of appealability. 

We granted a certificate of appealability for the question 

whether Welch’s right to a fair trial was violated by the officers’ improper statements.

II. Analysis

As an initial matter, the parties disagree about how we 

should construe Welch’s claim. The state argues that Welch 

failed to raise the fair-trial claim in any of his state court proceedings and thus has defaulted federal review of it. In oral 

argument, the state conceded that Welch had exhausted the 

claim whether he was denied a fair trial when the jury was 

exposed to the prejudicial information, but maintained that 

Welch never raised the question whether the judge’s actions 

in admitting the evidence denied him a fair trial. We will not 

split hairs that finely. In either case Welch argued that the 

officers’ statements made his trial unfair. He exhausted state 

remedies for the fair-trial claim. 
6 No. 14-1164

The parties debate whether Welch’s trial and appellate 

counsel were constitutionally ineffective for failing to argue 

that Welch had been denied a fair trial. But we did not certify that issue for appeal, and the parties did not move to expand the certificate of appealability before briefing it. While 

appellate jurisdiction requires a certificate of appealability, 

see 28 U.S.C. § 2253(c)(1); Gonzalez v. Thaler, 132 S. Ct. 641, 

649 (2012), a defect in a certificate concerning one claim does 

not deprive of us jurisdiction over that claim. Gonzalez, 132 S. 

Ct. at 649, and we are not bound to enforce the requirements 

of 28 U.S.C. § 2253(c) against Welch.

We can consider procedural issues not argued by the parties. Day v. McDonough, 547 U.S. 198, 209 (2006). We have repeatedly reminded habeas corpus petitioners, especially 

when represented by counsel, to request permission before 

arguing non-certified claims. See Peterson v. Douma, 751 F.3d 

524, 529–30 (7th Cir. 2014) (we will decide the merits of only 

certified claims); Thompson v. United States, 732 F.3d 826, 831 

(7th Cir. 2013) (parties wishing to raise non-certified claims 

should first request permission to do so), quoting Lavin v. 

Rednour, 641 F.3d 830, 832 (7th Cir. 2011); Fountain v. United 

States, 211 F.3d 429, 433 (7th Cir. 2000) (we will not address 

additional issues unless certificate of appealability is expanded to include them). Limiting appeals to certified issues 

helps to avoid wasting time of the court and opposing parties, see Peterson, 751 F.3d at 530; Young v. United States, 124 

F.3d 794, 799 (7th Cir. 1997), and the interests of justice here 

do not otherwise require us to consider the non-certified issue, see Ouska v. Cahill-Masching, 246 F.3d 1036, 1045 (7th Cir. 

2001). 
No. 14-1164 7

In this case the procedural misstep is harmless, though,

because Welch cannot succeed under either theory. He did 

not show that the Wisconsin appellate court’s decision was 

“so lacking in justification” that there is no possibility for 

“fairminded disagreement.” See Harrington v. Richter, 562 

U.S. 86, 103 (2011). Our review of the state court decision is 

highly deferential. See Cullen v. Pinholster, 131 S. Ct. 1388, 

1398 (2011); Campbell v. Reardon, 780 F.3d 752, 761 (7th Cir. 

2015). We review the Wisconsin appellate court’s application 

of the ineffective-assistance and harmless-error standards to 

determine whether the court applied them unreasonably or 

contrary to clearly established federal law as determined by 

the Supreme Court of the United States. See 28 U.S.C. 

§ 2254(d)(1); Lopez v. Thurmer, 573 F.3d 484, 489 (7th Cir. 

2009). 

Regarding the ineffective-assistance argument, Welch 

needs to show that the Wisconsin appeals court unreasonably found that no prejudice resulted from the error. 

See Strickland, 466 U.S. at 687. On the fair-trial claim, Welch 

needs to show that the appellate court incorrectly determined that the comments did not affect the verdict. 

See Brecht v. Abrahamson, 507 U.S. 619 (1993); Chapman v. California, 386 U.S. 18 (1967); Jones v. Basinger, 635 F.3d 1030, 

1052–53 (7th Cir. 2011). He has not made either showing.

Welch argues that the evidence against him was weak, 

and thus that the Wisconsin appellate court’s conclusions on 

both claims were unreasonable. He points to a number of

arguable weaknesses in the evidence, including that one of 

the alleged accomplices changed his testimony and had a 

prior perjury conviction, and that none of the victims ever 
8 No. 14-1164

positively identified Welch. (Recall that the robbers wore 

masks.)

The record supports the state court’s application of 

Strickland and its conclusion that no prejudice resulted from 

any error. The Wisconsin appellate court considered the substantial quantity and quality of the evidence against Welch, 

including the victims’ testimony establishing a clear modus 

operandi, Welch’s flight from law enforcement, his accomplices’ testimony identifying him as a participant in multiple 

robberies, the DNA found on the ski masks, and the duffel 

bag found in “the Moneymaker,” not to mention the existence and name of “the Moneymaker” itself. We also cannot 

overlook the victims’ testimony as to the robbers’ heights,

weights, and skin tones even if the victims could not identify 

faces. See, e.g., United States v. Birk, 453 F.3d 893, 899 (7th 

Cir. 2006) (no prejudice from counsel’s failure to object to 

improper character evidence when evidence against defendant was overwhelming); Cooper v. United States, 378 F.3d 638, 

642 (7th Cir. 2004) (no prejudice when counsel failed to object to improper evidence where evidence of guilt was

strong). 

On the fair-trial issue, Welch must show actual prejudice 

under Brecht, 507 U.S. at 637; see Davis v. Ayala, 576 U.S. —, 

135 S. Ct. 2187, 2197–98 (2015). The state court found any error harmless. That determination is subject to deference under 28 U.S.C. § 2254(d)(1). Davis, 135 S. Ct. at 2198–99.

The state court’s finding of harmless error here was not 

only reasonable but correct. The state court assumed it was 

improper to allow the jury to hear the officers’ statements 

but concluded that the comments did not skew the jury’s

ability to assess accurately the accomplice testimony, the 
No. 14-1164 9

DNA and ballistics evidence, and all the other evidence tying Welch and his “Moneymaker” to numerous robberies. 

We agree. Because the evidence against Welch was so strong, 

the two statements he considers improper neither prejudiced 

him nor influenced the jury’s verdict. See, e.g., Ashburn v. 

Korte, 761 F.3d 741, 755–56 (7th Cir. 2014) (finding reasonable 

application of harmless-error standard when one exhibit was 

admitted erroneously; evidence against defendant was 

“overwhelming”); Brown v. Rednour, 637 F.3d 761, 767 (7th 

Cir. 2011) (finding reasonable application of harmless-error 

standard when jury took police report into deliberation 

room; evidence tied getaway vehicle to defendant and several eyewitnesses identified defendant). The state court reasonably denied relief, and the district court correctly did so.

AFFIRMED.