In the

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 20-1876 

JONATHON ADEYANJU, 

Petitioner-Appellant, 

v.

LANCE WIERSMA, Administrator,

Division of Community Corrections,

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the

Western District of Wisconsin. 

No. 11-cv-81-wmc — William M. Conley, Judge. 

____________________ 

ARGUED MAY 12, 2021 — DECIDED AUGUST 31, 2021 

____________________ 

Before FLAUM, HAMILTON, and BRENNAN, Circuit Judges. 

BRENNAN, Circuit Judge. For his role in a gang shooting, a

jury convicted Jonathon Adeyanju of attempted homicide and 

endangering safety by use of a firearm. His primary defense 

at trial was that he was not involved, as no physical evidence 

connected him to the crime, and he said the State’s witnesses 

could not be trusted. Adeyanju’s counsel contended that the 

shooters—whoever they were—intended to scare but not to 
2 No. 20-1876 

kill their gang rivals, so they were guilty of the endangering 

safety charges but not attempted homicide. 

His counsel was ineffective, Adeyanju submits, because he 

should have requested a jury instruction on a lesser-included 

offense to attempted homicide—first-degree recklessly endangering safety. Then, the jury could have found that he was 

among the shooters but did not intend to kill anyone. But the 

jury already had that option with the endangering safety by 

use of a firearm charges, which it chose not to take. Because 

Adeyanju fails to show that he was prejudiced by counsel’s 

purported error, we affirm the district court’s denial of his 

28 U.S.C. § 2254 petition.

I 

A 

On the evening of August 9, 2005, a group of men fired a 

hail of bullets into a crowd of rival gang members gathered 

outside a garage in Oregon, Wisconsin. There were no fatalities, but three of the victims suffered gun-shot wounds (one 

to the hand and thigh, one to the thigh, and one to the groin).

The plot, it appears, was a preemptive strike: the shooters 

wanted to prevent retaliation against members of their own 

gang, including Adeyanju’s brother, who had robbed members of the rival gang. 

Adeyanju was charged as one of the shooters with three 

counts each of attempted first-degree intentional homicide 

and of endangering safety by use of a firearm. The mens rea

requirement differs for these two crimes: attempted homicide 

requires “intent to kill” another person, WIS. STAT. § 940.01(1), 

whereas endangering safety by use of a firearm requires 

“[i]ntentionally discharg[ing] a firearm into a vehicle or 
No. 20-1876 3

building under circumstances in which he or she should realize there might be a human being present,” WIS. STAT. 

§ 941.20(2)(a). Further, Adeyanju was charged as a “party to” 

these crimes, meaning that he could be found guilty for directly committing the crimes, aiding and abetting the commission of the crimes, or acting in a conspiracy to commit the 

crimes. WIS. STAT. § 939.05(2). 

At trial, defense counsel argued principally that Adeyanju 

was not among the shooters. He did not offer a specific alibi, 

and Adeyanju exercised his right not to testify. Instead, counsel highlighted that no physical evidence tied Adeyanju to the 

shooting. In addition, he attempted to cast doubt on the 

State’s witnesses who placed Adeyanju on the scene, noting 

confusion about the number of shooters and the witnesses’ 

purported motivations to lie. 

Adeyanju’s counsel also presented an alternative defense: 

the shooters did not intend to kill their rivals, but rather 

simply to scare them. In support of this theory, counsel elicited testimony on cross-examination that some of the participants did not intend to kill anyone. Counsel argued to the jury 

in closing that because the shooters did not intend to kill, the 

shooting was “cover[ed]” by the endangering safety by use of 

a firearm charges, but not the attempted homicide charges. 

Counsel drafted a jury instruction on a lesser-included offense for attempted first-degree homicide—first-degree recklessly endangering safety, WIS. STAT. § 941.30(1). But he did 

not request this charge at the jury instruction conference, and 

the jury was never instructed on it. Ultimately, Adeyanju was 

convicted of all six counts. 
4 No. 20-1876 

B 

Adeyanju moved for state postconviction relief, arguing 

his trial counsel was ineffective for failing to request the firstdegree recklessly endangering safety jury instruction. At an 

evidentiary hearing, his counsel testified he felt the defense’s 

strategies were limited by his client’s decisions not to accept 

a plea offer and not to testify. Heading into trial, counsel 

thought Adeyanju was likely to be convicted on all counts. 

Counsel said his client never insisted on an “all-or-nothing” 

defense. He did not recall discussing the possibility of a 

lesser-included offense instruction with his client, but said if 

he had, he would have remembered. The lesser-included offense instruction would have been consistent with his alternative lack-of-intent defense theory. Counsel suggested he had 

no strategic reason for not requesting the instruction; rather, 

he said he “didn’t think of it” during trial. 

The state court denied post-conviction relief, concluding 

that counsel had been effective because there was “no basis” 

to request a lesser-included offense. First, the court explained 

that under Wisconsin law, “[i]f a ‘reasonable view’ of the evidence is sufficient to support a guilty verdict beyond a reasonable doubt for the greater and lesser-included offenses, 

then no lesser-included instruction need be given.” State v. 

Weeks, 477 N.W.2d 642, 645–46 (Wis. Ct. App. 1991) (quoting 

State v. Bergenthal, 178 N.W.2d 16, 21 (1970), cert. denied, 402 

U.S. 972 (1971)). Further referencing Weeks, the state court 

noted that “intent to kill” within the definition of first-degree 

homicide “means either that the actor ‘has a purpose’” to take 

the life of another human being “or is aware that his or her 

conduct is practically certain to cause that result.” Id. at 647 

(Fine, J., concurring) (emphasis removed) (quoting WIS. STAT. 
No. 20-1876 5

§ 939.23(4)). And, the court emphasized, Adeyanju was 

charged under WIS. STAT. § 939.05(2) as a party to the crime of 

attempted homicide, meaning the jury could have found him 

guilty of that crime if any of the other shooters had “intent to 

kill” any of the gang rivals or if any “was aware that his conduct was practically certain to kill” one of them. 

The court then highlighted that, as part of a “concerted effort” in which Adeyanju was a “willing participant,” “five or 

six people, all facing in the same direction, all firing their guns 

at once” shot a “[m]inimum of 33 rounds” toward the rival 

gang’s garage. The shooters also made extensive efforts to 

avoid getting caught, including rubbing the ammunition with 

alcohol prior to loading each weapon to make sure that no 

fingerprints could be found, selecting some firearms that 

would not leave casings, and wearing “virtually identical ... 

black T-shirts.” Thus, the court concluded, the record did not 

reveal evidence that would cast a reasonable doubt on any element of attempted first-degree homicide, including doubt on 

the element of intent. 

The Wisconsin Court of Appeals affirmed on different 

grounds. State v. Adeyanju, 773 N.W. 2d 225, 2009 WL 2047271 

(Wis. Ct. App. July 16, 2009) (per curiam). Also evaluating 

Adeyanju’s claim under the Strickland framework, the appeals 

court concluded it was reasonable for counsel not to request a 

lesser-included offense instruction because the instruction 

may have harmed Adeyanju. Id. at *3–4. If the jury found that 

Adeyanju did not have the requisite intent for attempted 

homicide, it would have had to acquit him of that crime. Id. at 

*3. But if the lesser-included instruction were introduced, the 

jury could have reached a guilty verdict on it. Id. Therefore, 

the court concluded, it was objectively reasonable “for 
6 No. 20-1876 

counsel to forego [sic] a lesser-included offense instruction in 

the hope of forcing the jury into complete acquittal, rather 

than giving it a second option for conviction.” Id. at *3. 

The Wisconsin Supreme Court denied review, and 

Adeyanju did not seek certiorari in the Supreme Court of the 

United States. Instead, he petitioned for federal habeas relief 

under 28 U.S.C. § 2254, which the district court denied. 

II

We review de novo the district court’s denial of 

Adeyanju’s petition for a writ of habeas corpus. See Schmidt v. 

Foster, 911 F.3d 469, 476 (7th Cir. 2018) (en banc). “Federal habeas review ... exists as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for 

ordinary error correction through appeal.’” Woods v. Donald, 

575 U.S. 312, 316–17 (2015) (quoting Harrington v. Richter, 562 

U.S. 86, 102–03 (2011)). Relief is rarely available. We may grant 

it only to a state prisoner who is “in custody in violation of 

the Constitution or laws or treaties of the United States.” 

28 U.S.C. § 2254(a). 

Before us, Adeyanju continues to press, as he did in state 

court, that he received ineffective assistance because his trial 

counsel did not propose a jury instruction on the lesser-included offense of recklessly endangering safety. To prevail, 

Adeyanju must show under Strickland v. Washington, 466 U.S. 

668 (1984), and subsequent authority, that his trial counsel 

provided ineffective assistance. Strickland requires a showing 

of both deficient performance and prejudice resulting from it. 

Id. at 687. Counsel performance fails to meet constitutional 

standards only when it falls “below an objective standard of 

reasonableness” and it prejudices a petitioner only if “there is 
No. 20-1876 7

a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Id. at 687–88, 694. A petitioner is entitled to habeas relief 

only if he satisfies both of Strickland’s prongs. See Thill v. Richardson, 996 F.3d 469, 476 (7th Cir. 2021). 

We turn first to whether Adeyanju was prejudiced by his 

trial counsel’s performance. The parties do not debate the

standard of review on this prong—they agree that the Wisconsin Court of Appeals addressed only Adeyanju’s counsel’s 

performance, so they ask us to review de novo the issue of 

prejudice. “In these circumstances, the Supreme Court has instructed, we treat the two prongs of Strickland as divisible and 

review the prejudice prong by taking our own fresh look at 

the evidentiary record.” Gish v. Hepp, 955 F.3d 597, 605 

(7th Cir. 2020); see also Rompilla v. Beard, 545 U.S. 374, 390 

(2005) (applying de novo review to the issue of prejudice 

where the state court addressed only counsel’s performance 

under Strickland). We therefore presume without deciding 

that the Antiterrorism and Effective Death Penalty Act of 

1996’s deferential standard of review under § 2254(d) does 

not apply. 

Adeyanju argues there was a reasonable probability that 

at least one juror would find that he and the other shooters 

acted recklessly, rather than with intent to kill the occupants 

of the garage. Citing Keeble v. United States, 412 U.S. 205, 212 

(1973), Adeyanju maintains that when a defendant is “plainly 

guilty of some offense” but “one of the elements of the offense 

charged remains in doubt,” and the jury is given the stark 

choice to acquit or convict on that offense, “the jury is likely 

to resolve its doubts in favor of conviction.” He compares this 

case to United States ex rel. Barnard v. Lane, 819 F.2d 798, 803-04 
8 No. 20-1876 

(7th Cir. 1987), in which the defendant’s counsel provided ineffective assistance because he failed to ask for justification or 

manslaughter jury instructions in addition to instructions on 

first-degree homicide. That omission left the jury with no way 

to reach a finding of reduced culpability—Lane’s only viable 

defense after he admitted to shooting the victim but explained 

he had been carrying a firearm due to fear of the victim. Id.

This case is like Lane, Adeyanju insists, as without the lesserincluded offense instruction, the jury likely convicted him of 

attempted homicide—even if it had doubts about whether the 

shooters intended to kill their gang rivals—because the jury 

knew that shooting toward an occupied garage was some sort 

of crime.

This case differs from Lane, though, in important ways. 

Here, the jury could have reached a verdict consistent with 

the reduced-culpability theory while still finding Adeyanju 

guilty of some crime by acquitting him of the attempted homicide charges but convicting him of endangering safety by use 

of a firearm. Like recklessly endangering safety, endangering 

safety by use of a firearm does not require proof that the defendant intended to kill anyone. The former involves “recklessly endanger[ing] another’s safety under circumstances 

which show utter disregard for human life,” WIS. STAT. 

§ 941.30(1), with recklessness in this context meaning creating 

“an unreasonable and substantial risk of death or great bodily 

harm to another human being and the actor is aware of that 

risk,” id. § 939.24(1). Similarly, endangering safety by use of a 

firearm criminalizes “[i]ntentionally discharg[ing] a firearm 

into a vehicle or building under circumstances in which he or 

she should realize there might be a human being present.” Id.

§ 941.20(2)(a). 
No. 20-1876 9

The jury had the option of finding that Adeyanju and the 

other shooters had a lesser degree of culpability, but did not 

choose it. In his closing argument, Adeyanju’s counsel contended that if the jury doubted the shooters intended to kill 

their gang rivals, it should find Adeyanju guilty of only the 

three endangering safety by use of a firearm charges. “[I]t’s 

just not true,” his counsel argued, that when “[y]ou fire shots 

at people [it is] because you intend to kill them.” Rather, he 

told the jury, “when you take a look at the jury instructions, 

on counts four, five, and six ... that pretty much covers the 

situation that actually occurred ... that night, which is shooting into an occupied dwelling.” It is unconvincing, as 

Adeyanju suggests, that offering the recklessly endangering 

safety instruction—a crime with a similar mens rea requirement to endangering safety by use of a firearm—would have 

convinced the jury to find that Adeyanju and the shooters 

lacked an intent to kill.

Our conclusion on this point is strengthened by the state 

court’s finding that overwhelming evidence supported the 

shooters’ intent to kill their rivals. See McAfee v. Thurmer, 

589 F.3d 353, 357 (7th Cir. 2009) (defendant not prejudiced by 

failure to request lesser-included offense instruction where 

evidence was “overwhelming”).1 As that court detailed, the 

1 We have previously held that when a state appellate court does not 

expressly adopt the trial court’s reasoning and instead remains silent on 

one of the Strickland prongs, we give “deference only to the prong the appellate court did reach.” Thomas v. Clements, 789 F.3d 760, 766 (7th Cir. 

2015). More recently, however, the Supreme Court held in Wilson v. Sellers, 

138 S. Ct. 1188, 1192 (2018), that when the final state court adjudication on 

the merits summarily affirms an earlier state court decision, federal habeas 

courts “should ‘look through’ the unexplained decision to the last related 

state-court decision that does provide a relevant rationale.” Here, the 
10 No. 20-1876 

shooters’ plan was intentional: five or six men pulled up and 

shot their guns into the crowded garage, firing at least 33 

rounds. Further, the shooters took elaborate steps to avoid 

getting caught: they covered their faces with bandanas, they 

wore all black, and they wiped down every bullet they loaded 

into their guns, to leave no fingerprints. Finally, one of the 

bullets fired was found lodged in a car parked in front of the 

garage, four-and-one-half feet off the ground—evincing intent to shoot chest high and thus to kill, rather than just to 

frighten. 

Adeyanju also argues that the unsubmitted jury instruction might have changed the result of his trial because some of 

the other shooters who testified at his trial said they did not 

intend to kill anyone. He highlights that under cross-examination two of the shooters stated they did not intend to kill 

anyone. Lucas Rodriguez said he did not “intend to kill somebody,” but rather just wanted “[t]o get [the gang rivals] 

scared” so that “they would leave [Rodriguez] alone.” And 

Wisconsin Court of Appeals did not explicitly adopt the trial court’s reasoning, but it also did not explicitly decline to do so or in any way disagree 

with the trial court’s reasoning. Without deciding whether Wilson conflicts 

with Thomas, we give the trial court’s reasoning great weight under comity. Federal habeas review is confined by “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). For one, it is well recognized that “state courts know and follow the law,” Donald, 575 U.S. at 316 

(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam))—especially in cases “involv[ing] such a common claim as ineffective assistance 

of counsel under Strickland,” Titlow, 571 U.S. at 19. Further, the same state 

court judge presided over Adeyanju’s criminal trial and his post-conviction proceedings. His decision therefore sheds helpful light on the trial 

record and, in turn, on Adeyanju’s prospects for acquittal on the attempted homicide charges.
No. 20-1876 11

Andrew Pirsch testified he did not “intend to kill” the gang 

rivals when he fired his gun. 

But that contention is not persuasive because Adeyanju 

was charged and found guilty as a party to a crime under WIS.

STAT. § 939.05(2). Under Wisconsin law, a party to a crime is 

guilty of that crime whether or not that party intended the 

crime or had the intent of its perpetrator. State v. Stanton, 316 

N.W.2d 134, 138 (Wis. Ct. App. 1982). As the Wisconsin Court 

of Appeals ruled, because Adeyanju was convicted as a party 

to a crime, “if any one of the shooters ... had intent to kill, that 

intent would be sufficient to convict all defendants.” 

Adeyanju, 773 N.W.2d 225, at *2. We cannot overrule this conclusion about state law. See Bradshaw v. Richey, 546 U.S. 74, 76 

(2005) (“[A] state court’s interpretation of state law ... binds a 

federal court sitting in habeas corpus.”); Miller v. Zatecky, 820 

F.3d 275, 277 (7th Cir. 2016) (“A federal court cannot disagree 

with a state court’s resolution of an issue of state law.”). To

acquit Adeyanju of attempted homicide, the jury would have 

had to find that none of the other shooters had the requisite 

intent to kill. 

The State also elicited plenty of testimony contradicting 

that which Adeyanju highlights. When questioned by the 

State, Rodriguez testified that the overall plan forthe shooting 

was “to get” the gang rivals “before they get us,” explaining 

that “get them” meant to “[t]ry to kill them.” Rodriguez contradicted his earlier testimony by saying that killing someone 

had “passed [his] mind” and that it was “[s]ort of” his intention to kill the people in the garage. He further admitted that 

he and the others were shooting “[i]n the garage towards the 

people” and he said he did not really care if he hit someone.

He also testified that when he asked Adeyanju what he had 
12 No. 20-1876 

done at the time of the shooting, Adeyanju replied “[h]e shot 

all six” bullets from his gun’s cylinder. When Pirsch was questioned by the State, he testified he was indeed shooting at the 

“[p]eople” as well as a house. Even on cross-examination,

when asked whether he intended to kill anyone, Pirsch first

answered, “I don’t know. I shot at them.” 

So under de novo review, Adeyanju has failed to show a 

reasonable probability that, but for counsel’s failure to propose a lesser-included offense instruction, his trial would 

have come out differently. As the state court said, no one died 

during this shooting “but for the grace of God.” The jury was 

presented with the evidence described above, and Adeyanju’s

counsel expressly requested that the jury find that the shooters lacked intent to kill and therefore were guilty of only the 

lesser offense of endangering safety by use of a firearm. Instead, the jury found Adeyanju and the other participants 

guilty of all charges, including attempted homicide—meaning the jury concluded that an intent to kill was present. Not 

only was a compromise available for the jury on the endangering safety by use of a firearm counts, but there is only a 

small difference between the crime on which the jury was instructed and the instruction Adeyanju points to for recklessly 

endangering safety. That difference is highly unlikely to have 

had a “reasonable probability” of changing the trial’s outcome to benefit Adeyanju, as Strickland requires. 

∗ ∗ ∗

When the petitioner’s arguments concerning the prejudice 

prong fail, as here, we need not address whether counsel’s 

performance was deficient. Thill, 996 F.3d at 476–77 (“noting 

that ‘it is unnecessary and undesirable for [a habeas court] to 

consider the attorney performance facet of the analysis’ when 
No. 20-1876 13

‘an ineffectiveness claim may be disposed of on the basis of a 

lack of prejudice‘” (alteration in original) (quoting Taylor v. 

Bradley, 448 F.3d 942, 949 (7th Cir. 2006))). 

For these reasons, we AFFIRM the denial of Adeyanju’s 

§ 2254 petition.