Winston v. Boatwright

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1156

MC W INSTON,

Petitioner-Appellant,

v.

A NA B OATWRIGHT,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 07-C-0777—William E. Callahan, Jr., Magistrate Judge.

A RGUED O CTOBER 25, 2010—D ECIDED A UGUST 19, 2011

Before W OOD , W ILLIAMS, and T INDER, Circuit Judges.

W OOD , Circuit Judge. For more than 130 years, federal

courts have held that discrimination in jury selection

offends the Equal Protection Clause. See, e.g., Smith v.

Texas, 311 U.S. 128, 130-32 (1940); Norris v. Alabama, 294

U.S. 587, 599 (1935); Neal v. Delaware, 103 U.S. 370, 397-

98 (1881). Early cases focused on the systemic exclusion

of racial minorities from juries through state statutes,

e.g., Strauder v. West Virginia, 100 U.S. 303 (1880); later,

2 No. 10-1156

attention turned to the race-based use of peremptory

challenges by prosecutors. Batson v. Kentucky, 476 U.S. 79

(1986). More recently, the constitutional prohibition

on discrimination in jury selection has been extended

beyond race to gender. Moreover, the fact that society as

a whole has an interest in the integrity of the jury

system has been acknowledged. The anti-discrimina-

tion principle is thus not just a privilege of the criminal

defendant; it constrains prosecutors, criminal defense

lawyers, and civil litigants alike. Intentional discrimina-

tion by any participant in the justice system undermines

the rule of law and, by so doing, harms the parties,

the people called for jury duty, and the public as a

whole. See J.E.B. v. Alabama, 511 U.S. 127 (1994) (applying

Batson to gender-based peremptory strikes); Georgia v.

McCollum, 505 U.S. 42 (1992) (applying Batson to

criminal defense counsel); Edmonson v. Leesville Concrete

Co., 500 U.S. 614 (1991) (applying Batson to civil litigants);

Powers v. Ohio, 499 U.S. 400, 405-07 (1991) (describing

the harms of discrimination in juror selection); Batson,

476 U.S. at 86-88. As this case illustrates, however, dis-

crimination in the selection of jurors has not yet been

eradicated.

In a nutshell, this case presents the question whether

the constitutional rights of the petitioner, MC Winston,

were violated when his lawyer used peremptory chal-

lenges systematically to eliminate all men from the jury

in his trial for second-degree sexual assault. Winston

argued that this violated both his rights under the

Equal Protection Clause and his Sixth Amendment right

to effective assistance of counsel under Strickland v.

No. 10-1156 3

Washington, 466 U.S. 668 (1984). His efforts were unsuc-

cessful both in state post-conviction proceedings and

then in the federal district court. Winston has now turned

to us.

Although our role in federal habeas corpus proceedings

is limited, it has not vanished altogether. We conclude

here that a defense lawyer’s intentional violation of the

Equal Protection Clause falls below the performance

standard established by Strickland. The more difficult

issue is whether Winston can show prejudice. Resolution

of that part of the Strickland inquiry requires us to

choose between two competing lines of authority from

the U.S. Supreme Court. Because the Court itself did not

signal how it would make that choice until well after

the state courts acted in Winston’s case, we have no

basis for finding that the state courts disregarded any

“clearly established” precedents. We therefore affirm

the judgment of the district court denying Winston’s

petition.

I

On October 5, 2001, a fifteen-year-old girl, Candida,

skipped school and stopped by Kandy Konnecktion, a

convenience store in Milwaukee. Though primarily a

candy shop, the store also sold cigarettes, which Candida

meant to buy illegally. Winston, an employee whom

Candida knew, was working that day. Upon her arrival,

Candida told Winston that she wanted to “kick it” for

the day. Around lunchtime, Winston left with her to

get Chinese food; he also bought gin, lemonade, and beer.

4 No. 10-1156

From there, as Candida would later testify at trial,

things escalated. The two returned to the store and

began to drink the alcohol while sitting on a mattress in

a back storage room. After Candida had consumed a

few concoctions of gin and lemonade and Winston

drank some beer, Winston began to stroke her hair, but

she slapped his hand away. On Candida’s account,

Winston then removed her clothing, fondled and licked

her breasts and genitals, and briefly had sex with her.

Winston admits hanging out and drinking alcohol with

Candida, but he denies ever touching her in an inappro-

priate or sexual manner.

In light of these events, the state charged Winston

with one count of second-degree sexual assault of a

child by means of sexual intercourse. See W IS. S TAT.

§ 948.02(2). Before trial, the state reduced that charge to

sexual assault on the basis of sexual contact. The jury,

however, failed to reach a verdict, and so the trial court

ordered a mistrial. The state then amended the charge

to include two counts of second-degree sexual assault—

one for sexual contact and one for sexual intercourse.

At that point, the court appointed new counsel for

Winston; this was the lawyer whose conduct is at issue

here. Winston went to trial in September 2002. The

second jury, which was composed entirely of women,

acquitted Winston of sexual intercourse but found him

guilty of unlawful sexual contact. After his motion for

a new trial was denied and with his third appointed

attorney, Winston appealed his conviction, which the

Wisconsin Court of Appeals affirmed. State v. Winston,

No. 03-3412-CR, 2004 WL 1982229 (Wis. Ct. App.

No. 10-1156 5

Sept. 8, 2004) (unpublished) (Winston I). The Wisconsin

Supreme Court summarily denied Winston’s petition for

review. State v. Winston, 693 N.W.2d 76 (Wis. 2005).

Proceeding without an attorney, Winston then filed a

motion for a new trial. He asserted that he had received

ineffective assistance of both trial and appellate counsel

in a number of respects, including failure to raise the

issue of prosecutorial misconduct, purposeful discrim-

ination in jury selection, and failure to request new

DNA testing. One new item of evidence obtained in

these post-conviction proceedings was a June 9, 2003,

letter from the appellate lawyer that explained why no

Batson claim had been raised in either the trial court or

on appeal. Although that letter failed initially to make

its way into the record in this court, Winston’s new

counsel have managed to find page one of the letter for

us. (We understand that the entire letter was before

the state courts.) The state post-conviction court stated

that the prosecutor’s peremptory challenges were used

to strike women from the panel. Page one of the letter

reports that the prosecutor used his seven peremptory

challenges to strike six women and one man, and the

defense lawyer used his to strike six men and one

woman. This information “supports [the defense law-

yer’s] statement that the all-woman jury resulted from

his actions.” Tellingly, post-conviction counsel opined

that this was not enough to support a claim of ineffec-

tive assistance, because it proved that the lawyer had a

strategic reason for his actions. Winston’s state appel-

late lawyer similarly explained that she refrained from

raising a Batson claim against the original trial lawyer

6 No. 10-1156

because “she learned from trial counsel that the reason

he struck the male jurors is because he thought that the

female jurors would be more critical of the victim.” The

state post-conviction court denied relief because it

found that striking the female jurors was “trial counsel’s

strategy” and “reasonable under the circumstances.”

On appeal during the post-conviction stage, the Wis-

consin Court of Appeals granted that “trial counsel’s

strategic reason for favoring female jurors was his

belief that they would be more critical of the victim

than male jurors would be.” State v. Winston, 2007 WL

586394, at ¶ 13 (Wis. Ct. App. Feb. 27, 2007) (unpublished)

(Winston II). It rejected Winston’s Strickland claim (and

the underlying Batson theory), however, because the

court found that the lawyer was following a reasonable

defense strategy and therefore, his actions were “ ‘virtually

unchallengable.’ ” Id. (quoting Strickland, 466 U.S. at 690-

91). In addition, the court noted that the result of

Winston’s second trial—acquittal of the sexual intercourse

offense—“blunts Winston’s contention” that he was

“harshly judged by the jury in part because it consisted

entirely of women.” Id. at ¶ 12-13. On July 17, 2007, the

Wisconsin Supreme Court again summarily denied

Winston’s petition for review. State v. Winston, 741 N.W.2d

239 (Wis. 2007).

Still representing himself, Winston filed a petition

for habeas corpus in federal court. The district court

denied the petition, but it granted Winston a certificate

of appealability limited to “whether trial counsel was

ineffective in his exercise of peremptory challenges, and

No. 10-1156 7

if so, whether a new trial should be ordered.” See 28

U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-41

(2003) (describing standards for granting a certificate

of appealability in Batson case). The district court ap-

pointed counsel, and this appeal followed.

II

A

Our review of Winston’s petition is governed by the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), 28 U.S.C. § 2254, which “tightly constrains

the availability of the writ.” Stock v. Rednour, 621 F.3d

644, 649 (7th Cir. 2010). We may grant relief to Winston

“only if the state court’s decision was contrary to or an

unreasonable application of clearly established Supreme

Court precedent.” Kerr v. Thurmer, 639 F.3d 315, 318 (7th

Cir. 2011); see 28 U.S.C. § 2254(d)(1). Winston focuses

on the unreasonable application provision, which

demands more than “just” an incorrect application of

federal law. See Harrington v. Richter, 131 S. Ct. 770, 785-86

(2011). A state court unreasonably applies controlling

Supreme Court precedent when it “identifies the

correct governing legal rule” from the Court’s cases, “but

unreasonably applies it to the facts of the particular

state prisoner’s case.” Williams v. Taylor, 529 U.S. 362,

407 (2000). An unreasonable application also occurs

when a state court unreasonably refuses to extend a

governing legal principle to a context in which it should

have controlled, or “unreasonably extends a principle to

a situation in which it should not have controlled.” Jones

8 No. 10-1156

v. Basinger, 635 F.3d 1030, 1044 (7th Cir. 2011); see

Williams, 529 U.S. at 407.

The “unreasonable application” inquiry is an objec-

tive one. Williams, 529 U.S. at 409. That is, we consider

“whether it is possible fairminded jurists could dis-

agree” that the state court’s arguments or theories are

inconsistent with the holdings of prior decisions of the

Supreme Court. Richter, 131 S. Ct. at 786. The writ may

issue only when “the state court’s ruling on the claim

being presented in federal court was so lacking in justi-

fication that there was an error well understood and

comprehended in existing law beyond any possibility

for fairminded disagreement.” Id. at 786-87. As the Court

has made clear, section 2254(d)(1) “would be under-

mined if habeas courts introduced rules not clearly estab-

lished under the guise of extensions to existing law.”

Yarborough v. Alvarado, 541 U.S. 652, 666 (2004).

That said, AEDPA does not preclude all relief. “Certain

principles are fundamental enough that when new

factual permutations arise, the necessity to apply the

earlier rule will be beyond doubt.” Id. For that reason,

courts are not prohibited from finding an application of

a legal principle unreasonable when it involves different

facts from those of the case that announced the principle.

See Panetti v. Quarterman, 551 U.S. 930, 953 (2007);

Lockyer v. Andrade, 538 U.S. 63, 76 (2003).

B

To assess Winston’s claim, we begin by “determining

the relevant clearly established law,” as set forth by the

No. 10-1156 9

Supreme Court at the time the state court acted.

Yarborough, 541 U.S. at 660. This requires us to review

both the Strickland line of cases, which govern assertions

of ineffective assistance of counsel in violation of his

Sixth Amendment rights, and the Batson line of cases,

which underlie Winston’s arguments about his lawyer’s

unsatisfactory performance. In order to prevail on his

Strickland claim, Winston “had to show both that his

counsel provided deficient assistance and that there

was prejudice as a result.” Richter, 131 S. Ct. at 787. To

establish deficient performance, he had to show that

his “counsel’s representation fell below an objective

standard of reasonableness,” evaluated under “prevailing

professional norms,” Strickland, 466 U.S. at 687-88,

not “best practices or most common custom.” Richter, 131

S. Ct. at 788. Among other things, this means that

we do not second-guess the wide range of reasonable

professional assistance available to an attorney; our

scrutiny of a lawyer’s performance is “highly deferential.”

Strickland, 466 U.S. at 689. When a case reaches us

through section 2254(d)(1), we defer not only to counsel’s

reasonable choices, but also to the state court’s evalua-

tion of that issue. See Richter, 131 S. Ct. at 788. To

establish prejudice, “a challenger must demonstrate a

‘reasonable probability that, but for counsel’s unprofes-

sional errors, the result of the proceeding would have

been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.’ ” Id.

at 787 (quoting Strickland, 466 U.S. at 694). Once again,

we must defer to the state court’s assessment of the

existence of such a reasonable probability.

10 No. 10-1156

Before this court, Winston relies exclusively on the

Supreme Court’s Batson cases to demonstrate that his

lawyer’s performance was constitutionally inadequate.

Batson applied the Equal Protection Clause to a prosecu-

tor’s use of peremptory challenges exercised on the

basis of race, 476 U.S. at 89-90, establishing a three-part

inquiry “designed to ensure that a State does not use

peremptory challenges to strike any . . . juror because of

his race.” Id. at 99 n.22. The upshot of Batson is that the

exclusion of even a single prospective juror for racial (or

comparable) reasons violates the Constitution. See J.E.B.,

511 U.S. at 142 n.13; see also, e.g., Snyder v. Louisiana,

552 U.S. 472, 478 (2008). Typically, to prove an equal

protection violation under Batson, “once the opponent of

a peremptory challenge has made out a prima facie case

of racial discrimination (step one), the burden of produc-

tion shifts to the proponent of the strike to come

forward with a race-neutral explanation (step two). If a

race-neutral explanation is tendered, the trial court

must then decide (step three) whether the opponent of

the strike has proved purposeful discrimination.” Purkett

v. Elem, 514 U.S. 765, 767 (1995) (per curiam).

Though Batson dealt with race discrimination by pros-

ecutors, its legal principle has been extended to pro-

hibit certain other forms of intentional discrimination

in jury selection. In Powers v. Ohio, the Supreme Court

rejected the premise that persons of the same race

cannot discriminate on the basis of their shared race

and held that “a criminal defendant may object to race-

based exclusions of jurors effected through peremptory

challenges whether or not the defendant and the

No. 10-1156 11

excluded juror share the same races.” 499 U.S. 400, 402

(1991). To hold otherwise and permit such a race-based

inference, it said, would “accept as a defense to racial

discrimination the very stereotype the law condemns.” Id.

at 410. Powers also emphasized that the constitutional

prohibition on discriminatory jury selection serves not

only the rights of the criminal defendant but also the

rights of the prospective juror “not to be excluded from

[a petit jury] on account of race.” Id. at 409. In addition,

because the “purpose of the jury system is to impress

upon the criminal defendant and the community as a

whole that a verdict of conviction or acquittal is given

in accordance with the law by persons who are fair,” id.

at 413, prohibiting discrimination in jury selection

also preserves the integrity of the criminal justice sys-

tem. See id. (“The verdict will not be accepted or under-

stood in these terms [of fairness] if the jury is chosen

by unlawful means at the outset.”).

The teaching of Batson and Powers is simple: equal

protection goes both ways. This is why Georgia v.

McCollum held that “the Constitution prohibits a crim-

inal defendant from engaging in purposeful discrimina-

tion on the ground of race in the exercise of peremptory

challenges”; “the exercise of a peremptory challenge

must not be based on either the race of the juror or the

racial stereotypes held by the party.” 505 U.S. 42, 59 (1992).

Like a prosecutor, the criminal defense lawyer upsets

the fairness of, and public confidence in, the criminal

justice system by discriminating in the selection of the

jury. See id. at 48-50 & n.6.

12 No. 10-1156

J.E.B. v. Alabama applied Batson to the use of peremp-

tory challenges on the basis of gender; it held that

“gender, like race, is an unconstitutional proxy for juror

competence and impartiality.” 511 U.S. at 129. Following

up on Powers and McCollum, J.E.B. reiterated the harm

caused by stereotypes in jury selection: “Discrimination

in jury selection, whether based on race or gender,

causes harm to the litigants, the community, and the

individual jurors who are wrongfully excluded from

participation in the judicial process. The litigants are

harmed by the risk that the prejudice that motivated

the discriminatory selection of the jury will infect the

entire proceedings,” and the “community is harmed by

the State’s participation in the perpetuation of invidious

group stereotypes and the inevitable loss of confidence

in our judicial system that state-sanctioned discrimina-

tion in the courtroom engenders.” Id. at 140. Where

“gender-related issues are prominent,” the dangers of

stereotypes and their attendant potential to create

cynicism about the jury’s neutrality are “particularly

acute.” Id.

C

Once a Batson violation is proved, the question of

remedy arises. We look at this in some detail, because

in the end it is pertinent to Winston’s ability to satisfy

the standards prescribed by 28 U.S.C. § 2254(d)(1). To

keep matters clear, we look first at the straightforward

case, in which the Batson issue comes up directly (either

from federal court or state court), and we then explore

No. 10-1156 13

the complications that arise when it must be filtered

through the lens of collateral review for ineffective assis-

tance of counsel. In the former context, Batson is clear: “if

the trial court decides that the facts establish, prima

facie, purposeful discrimination and the prosecutor does

not come forward with a neutral explanation for his

action, our precedents require that petitioner’s conviction

be reversed.” Batson, 476 U.S. at 100 (emphasis added).

Notably, the Court made no mention of any kind of

harmless error inquiry.

Batson itself as well as the cases that follow it confirm

that when a violation of equal protection in jury

selection has been proven, the remedy is a new trial,

without the need for any inquiry into harmless error

or examination of the empaneled jury. (We set to one

side the post-Batson decisions that raise only the

question whether the proper procedures were fol-

lowed, see, e.g., Purkett, 514 U.S. at 767-70, or whether

additional evidence is necessary to determine the basis

for a juror strike, e.g., McCollum, 505 U.S. at 59. Neither

of those problems exists here.) In fact, since a time well

before Batson was decided, the Court has followed

an automatic reversal rule once a violation of equal pro-

tection in the selection of jurors has been proven. See,

e.g., Smith, 311 U.S. at 132; Pierre v. Louisiana, 306 U.S.

354, 362 (1939); Neal, 103 U.S. at 397-98; Strauder, 100

U.S. at 312. That rule is simple: “If there has been dis-

crimination, whether accomplished ingeniously or ingenu-

ously, the conviction cannot stand.” Smith, 311 U.S. at 132.

Batson relied on three cases that employed this

remedial approach. 476 U.S. at 100. First, Whitus v.

14 No. 10-1156

Georgia held that “a conviction cannot stand if it is based

on an indictment of a grand jury or the verdict of a

petit jury from which Negroes were excluded by reason

of their race.” 385 U.S. 545, 549-50 (1967). Likewise,

Hernandez v. Texas held that where “[t]he result be-

speaks discrimination, whether or not it was a con-

scious decision on the part of any individual jury com-

missioner,” the “judgment of conviction must be re-

versed.” 347 U.S. 475, 482 (1954). Finally, Patton v. Missis-

sippi held that “[w]hen a jury selection plan, whatever it

is, operates in such way as always to result in

the complete and long-continued exclusion of any . . .

racial group, indictments and verdicts returned against

them by juries thus selected cannot stand.” 332 U.S. 463,

469 (1947). Patton further explained that while a con-

viction must be reversed in the first instance, this “does

not mean that a guilty defendant must go free. For in-

dictments can be returned and convictions can be

obtained by juries selected as the Constitution com-

mands.” Id. (citing Hill v. Texas, 316 U.S. 400, 406 (1942)).

Put in the Court’s current terminology, these cases

indicate that intentional discrimination on the basis of

race in jury selection is a structural error. See Arizona

v. Fulminante, 499 U.S. 279, 308-10 (1991). Structural

errors are “defects in the constitution of the trial mecha-

nism, which defy analysis by ‘harmless-error’ standards,”

because the “entire conduct of the trial from beginning

to end is . . . affected” by the error. Id. at 309-10; see also

Neder v. United States, 527 U.S. 1, 8 (1999) (“Such errors

infect the entire trial process and necessarily render a

trial fundamentally unfair.” (internal quotation marks

No. 10-1156 15

and citation omitted)). In addition, structural errors

“require automatic reversal” because they affect the

“framework in which the trial proceeds, as opposed to

errors in the trial process itself.” United States v. Harbin,

250 F.3d 532, 542 (7th Cir. 2001); see also Washington v.

Recuenco, 548 U.S. 212, 218 (2006) (explaining that when

an “error is structural” it “thus requires automatic re-

versal”).

The legal principle that a substantive Batson violation

requires reversal without further ado finds support in

other cases examining the effects of equal protection

violations in the selection of juries. Batson affirmed

that “the basic principles prohibiting exclusion of

persons from participation in jury service on account

of their race ‘are essentially the same for grand juries

and for petit juries.’ ” Batson, 476 U.S. at 84 n.3 (quoting

Alexander v. Louisiana, 405 U.S. 625, 626 n.3 (1972)); see

also Whitus, 385 U.S. at 549-50; Patton, 332 U.S. at 469;

cf. Pierre, 306 U.S. at 362 (“Principles which forbid dis-

crimination in the selection of Petit Juries also govern

the selection of Grand Juries.”). Bearing in mind this

equivalence between discrimination in the grand and

petit juries, we find Vasquez v. Hillery instructive for the

problem before us. 474 U.S. 254 (1986). In Hillery, the

Court held “that discrimination on the basis of race in

the selection of grand jurors ‘strikes at the fundamental

values of our judicial system and our society as a

whole.’ ” It refused to extend the harmless-error standard

to this context because such discrimination is a form of

structural error. Id. at 261 (quoting Rose v. Mitchell, 443

U.S. 545, 556 (1979)); see also Recuenco, 548 U.S. at 218

16 No. 10-1156

n.2 (classifying Hillery as involving structural error);

Neder, 527 U.S. at 8 (same); Fulminate, 499 U.S. at 310

(same).

The hallmark of a structural error is that the error

persists throughout the proceeding and relates to the

framework in which a trial proceeds. A Batson error

meets that description: “The overt wrong, often ap-

parent to the entire jury panel, casts doubt over the ob-

ligation of the parties, the jury, and indeed the court

to adhere to the law throughout the trial of the cause. . . .

The composition of the trier of fact itself is called in

question, and the irregularity may pervade all the pro-

ceedings that follow.” Powers, 499 U.S. at 412-13. It

is therefore not surprising that in a case decided

several years after Winston’s state-court proceedings,

the Supreme Court unanimously affirmed that Batson is

an “automatic reversal precedent[].” Rivera v. Illinois,

129 S. Ct. 1446, 1455 (2009). Rivera distinguishes be-

tween the remedy required for an ordinary error in

the denial of a peremptory challenge and the kind of

constitutional error that occurs when a juror is excluded

on racial grounds. In the former case, harmless error

analysis is proper, and the court must decide whether

the jurors who actually sat were qualified and unbiased.

If they were, then the erroneous use of the peremptory

challenge is harmless. The Court addressed Batson, in

contrast, in a section of the opinion discussing the auto-

matic reversal precedents. Id. at 1455-56.

It was Rivera that clarified the boundary between these

two lines of authority relating to peremptory challenges—

No. 10-1156 17

those that do and do not qualify for automatic reversal.

When the defendant’s complaint is that he was forced

to use a peremptory challenge as a result of the trial

court’s erroneous denial of a challenge for cause, the

Court has required a showing of prejudice. See United

States v. Martinez-Salazar, 528 U.S. 304 (2000). In Martinez-

Salazar the Court explained that “if the defendant elects

to cure such an error by exercising a peremptory chal-

lenge, and is subsequently convicted by a jury on which

no biased juror sat, he has not been deprived of any rule-

based or constitutional right.” Id. at 307. On the surface,

Rivera was a case close to the boundary of these two

lines. There the defendant challenged the trial court’s

rejection of his peremptory challenge to an Hispanic

juror, who wound up sitting on his trial jury. The

Supreme Court of Illinois held that the court should have

allowed the challenge, but it found that the error was

harmless. Upholding that decision, the Supreme Court

recognized that Batson concerns lay behind the trial

court’s ruling. Importantly, however, the Supreme Court

of Illinois had found that “the record fails to support

a prima facie case of discrimination of any kind.” Rivera,

129 S. Ct. at 1452. Under those circumstances, the Court

followed Martinez-Salazar and held that “the erroneous

denial of a peremptory challenge” does not “require[]

automatic reversal of a defendant’s conviction as a

matter of federal law.” Id. at 1452. Instead, errors

are to be assessed by inquiring whether the jury

eventually empaneled was impartial, qualified, and not

challengeable for cause. See id. at 1454; Martinez-

Salazar, 528 U.S. at 316-17; Ross v. Oklahoma, 487 U.S. 81, 91

18 No. 10-1156

(1988); United States v. Polichemi, 219 F.3d 698, 705-06 (7th

Cir. 2000).

If a Batson error has been proven, however, Rivera

confirmed that a different rule applies—one of automatic

reversal. Before we can apply these rules to Winston’s

case, we must address two additional complications:

first, the fact that it was his own lawyer who engaged

in intentional discrimination in his jury strikes, and

second, the fact that this case does not come to us on

direct appeal. Normally, a defendant is bound by his

lawyer’s choices, because the lawyer acts as his agent.

See United States v. Boyd, 86 F.3d 719, 722 (7th Cir. 1996).

But, as Boyd recognized, the general rule is that when

the lawyer’s performance falls below the Sixth Amend-

ment bar and the defendant is prejudiced by that weak

performance, then the defendant is entitled to relief.

Our task is to see how that rule of agency, the Batson

rule, and the Sixth Amendment right to the effective

assistance of counsel intersect.

III

The governing state court opinion in this case was the

one issued by the Wisconsin Court of Appeals in Winston

II, see McFowler v. Jaimet, 349 F.3d 436, 446 (7th Cir. 2003),

since the Wisconsin Supreme Court chose not to ex-

amine the intermediate court’s decision. We limit our-

selves to the record that was before the state court, and

presume the findings of fact therein are correct. 28 U.S.C.

§ 2254(e)(1); Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

No. 10-1156 19

A

As relevant here, Winston II disposed of Winston’s

claim in the following parts of the court’s opinion:

¶ 12. Winston’s third ineffective assistance claim

involves trial counsel’s alleged elimination of men

from the jury. Winston contends that he was harshly

judged by the jury in part because it consisted

entirely of women. We reject that contention.

¶ 13. First, this same all female jury acquitted

Winston of the sexual assault involving inter-

course and convicted him only of the sexual assault

involving contact. This result blunts Winston’s con-

tention. Second, appellate counsel declined to raise

this claim on direct appeal because the trial counsel’s

strategic reason for favoring female jurors was his

belief that they would be more critical of the victim

than male jurors would be. That defense strategy

was reasonable, and thus, “virtually unchallengable.”

Strickland, 466 U.S. at 690-91. Consequently, an inef-

fective assistance claim cannot be maintained on

this basis.

Winston II, 2007 WL 586394 (citations and footnote omit-

ted).

As we read this, the court offered two reasons for

rejecting Winston’s Strickland claim: first, it thought

that the fact that the jury acquitted him on one count

demonstrated that he was not prejudiced by his lawyer’s

conduct; and second, it assumed that the fact that the

lawyer had a strategic reason for what he did was

20 No. 10-1156

enough to establish that his performance was not con-

stitutionally inadequate. The latter point was both a

finding of fact and a ratification of the lawyer’s

conduct: Winston’s counsel struck male jurors on the

basis of their gender because he believed that all men,

because they are men, would be unsympathetic to his

client’s case. And indeed, the record bears out the fact

that this was the attorney’s reasoning. He conceded

frankly that the “all-women jury resulted from his ac-

tions.” At the time we heard oral argument in this case,

the parties debated whether an evidentiary hearing

would be appropriate for further factual development

on this issue. But since then, the Supreme Court

has spoken in a way that rules out that possibility for

a petitioner like Winston who is relying on 28 U.S.C.

§ 2254(d)(1). See Pinholster, 131 S. Ct. at 1398-1400.

Neither party suggests anything to rebut the presump-

tion that these facts are correct. 28 U.S.C. § 2254(e). Thus,

the sufficiency of the evidence used to discover coun-

sel’s reasons for the strikes—whether it be in a letter or

a hearing before the state trial court—is not before us.

B

This brings us to the question whether Winston’s

lawyer performed inadequately, as Strickland defines

that concept. In light of Batson, Powers, McCollum, and

J.E.B., we conclude that the answer is yes. Deliberately

choosing to engage in conduct that the Supreme

Court has unequivocally banned is both professionally

irresponsible and well below the standard expected of

No. 10-1156 21

competent counsel. Whether the state court’s conclu-

sion to the contrary represented an unreasonable applica-

tion of clearly established Supreme Court precedent is a

more difficult question, as we explain below. Eight years

before Winston’s trial began, the Supreme Court had

squarely held that intentional discrimination on the

basis of gender was forbidden in peremptory challenges.

J.E.B., supra. Indeed, even earlier, in 1992 McCollum ex-

plicitly removed “discrimination” from a long list of

permissible reasons defense counsel might have for

striking a prospective juror. See 505 U.S. at 58 (“[N]either

the Sixth Amendment right [to effective assistance of

counsel] nor the attorney-client privilege gives a crim-

inal defendant the right to carry out through counsel

an unlawful course of conduct.”). Calling the lawyer’s

actions “strategic” does not help: as the Court has repeat-

edly stated, the Batson rule exists not only to protect the

criminal defendant, but also to protect the prosecutor’s

interests, the interests of the prospective jurors, and

society’s interest in an unbiased system of justice. We

may assume that defense counsel can waive the rights

of his client, but he has no authority to waive the

other rights implicated by Batson.

Intentionally violating the Constitution by discrim-

inating against jurors on account of their sex is not con-

sistent with, or reasonable under, “prevailing profes-

sional norms.” Strickland, 466 U.S. at 688. To the con-

trary, Wisconsin forbids lawyers from engaging in un-

lawful representation. See W IS. R ULES OF P ROF’L C ONDUCT,

at Preamble (“A lawyer’s conduct should conform to the

requirements of the law.”); id. at R. 3.1(a) (“In representing

22 No. 10-1156

a client, a lawyer shall not . . . knowingly advance a

claim or defense that is unwarranted under existing

law.”). Professional rules typically prohibit lawyers

from engaging in conduct prejudicial to the administra-

tion of justice. See, e.g., M ODEL R ULES OF P ROF’ L C ONDUCT

R. 8.4(d) cmt.; ILL. R ULES OF P ROF’L C ONDUCT R. 8.4(a)(5);

M INN. R ULES OF P ROF ’ L C ONDUCT R. 8.4(d); W ASH . R ULES

OF P ROF’ L C ONDUCT R. 8.4(d). Some states’ provisions ex-

plicitly forbid lawyers from engaging in discrimination

on the basis of race, sex, national origin, age, sexual

orientation or socioeconomic status, and they specify

that this prohibition applies to jurors. See, e.g., FLA. R ULES

OF P ROF’ L C ONDUCT R. 4-8.4(d); ILL. R ULES OF P ROF ’ L

C ONDUCT R. 8.4(a)(5); M INN. OF R ULES OF P ROF’L C ONDUCT

R. 8.4(g); N.J. R ULES OF P ROF’L C ONDUCT R. 8.4(g); W ASH .

R ULES OF P ROF’ L C ONDUCT R. 8.4(g). Racist or sexist con-

duct can be the basis for professional sanction, censure, or

even disbarment. See S TEPHEN G ILLERS, R EGULATION OF

L AWYERS: P ROBLEMS OF L AW AND E THICS 792-799 (8th ed.

2009). In light of these well-established professional

norms, we have no trouble concluding that trial counsel’s

decision to strike jurors based solely upon their gender

constituted deficient performance.

Troublingly, before this court Wisconsin has taken the

position that “[d]efense lawyers often ignore, or even

perpetrate, violations of their clients’ constitutional

rights in the hopes of gaining a strategic advantage.” It

insists that no Supreme Court precedent establishes

that deficient performance occurs just because an

“attorney exercises his professional judgment based on

No. 10-1156 23

the belief that gender differences may influence a

jury’s verdict in his client’s favor.” But that is not true.

Quoting its earlier decision in Nix v. Whiteside, 475 U.S.

157, 166 (1986), the Supreme Court in McCollum held in

a Batson case that “[d]efense counsel is limited to ‘legiti-

mate, lawful conduct.’ ” 505 U.S. at 57. We do not know

where the state is getting its data from, but we hope

that it is mistaken about the frequency of deliberate

constitutional violations on the part of the defense bar.

To the extent that such misconduct exists, we are

certainly not going to give it our imprimatur. Cf. J.E.B., 511

U.S. at 154 (Kennedy, J., concurring in the judgment)

(“Nothing would be more pernicious to the jury system

than for society to presume that persons of different

backgrounds go to the jury room to voice prejudice.”).

(For the record, we would say the same thing about a

defense lawyer who tried to gain an advantage for her

client by bribing the judge, or by suborning perjury, or in

any other plainly unlawful way.) We conclude, in sum-

mary, that Winston’s lawyer’s performance was constitu-

tionally inadequate. Ordinarily we would need to move

on to the question whether the Supreme Court of the

United States had clearly established this proposition

by the time the state courts acted. In this case, however,

we have no need to undertake that inquiry, because of

our conclusion on the prejudice branch of the Strickland

inquiry, to which we now turn.

C

Winston cannot prevail unless he can also show that

he was prejudiced by his lawyer’s ineffective perfor-

24 No. 10-1156

mance. And here we encounter a problem: while a direct

Batson claim would be viewed as a structural error and

thus not subject to a harmless-error rule, a Strickland

argument requires an examination of prejudice. But the

Supreme Court has said that structural errors fall within

“a limited class of fundamental constitutional errors

that defy analysis by harmless error standards.” Neder,

527 U.S. at 7 (internal quotation marks deleted). If, there-

fore, analysis is impossible for harmless-error purposes,

then it is hard to see how it would be possible for pur-

poses of Strickland prejudice—after all, prejudice is the

central inquiry in a harmless error inquiry. But a closer

look at Neder reveals that the Court was not so much

dispensing with harmless error as it was finding that

structural errors “are so intrinsically harmful as to re-

quire automatic reversal.” Id. Translated into Strickland’s

terms, it was saying that such errors inevitably “under-

mine[] confidence in the outcome” of a proceeding. 466

U.S. at 694.

The state’s argument that Winston II adequately ad-

dressed prejudice under Strickland when it concluded

that the result of the trial “blunts Winston’s contention”

that he was “harshly judged” by the all-female jury,

2007 WL 586394, at ¶ 12-13, does not come to grips with

the consequences of Hillery, Neder, and Strickland. Hillery

held that “when a petit jury has been selected upon

improper criteria . . . we have required reversal of the

conviction because the effect of the violation cannot be

ascertained. . . . Like these fundamental flaws, which

never have been thought harmless, discrimination in the

grand jury undermines the structural integrity of the

No. 10-1156 25

criminal tribunal itself, and is not amenable to harmless-

error review.” 474 U.S. at 263-64. Prejudice, in other

words, is automatically present when the selection of a

petit jury has been infected with a violation of Batson

or J.E.B.

D

Even this, however, is not enough to allow Winston to

prevail. All we have shown thus far is that the state

court erred in its evaluation of Winston’s Strickland

claim. But as we acknowledged at the outset, more than

error must be shown in order to obtain relief under

section 2254. The state court’s resolution must be so far

out of bounds that it is objectively unreasonable. The

question is therefore whether the state court trans-

gressed that outer perimeter when it failed to see the

link between the analysis of prejudice in the structural

error cases and the analysis of prejudice in the Strickland

line of cases. That link would have been apparent,

we believe, if the state court had not made the error

of assuming that lawyers are permitted intentionally to

violate the Constitution when they represent criminal

defendants. The Supreme Court, as we have explained

above, has emphatically rejected that proposition.

Nevertheless, as the state points out, the Supreme

Court has never spoken to exactly this set of facts. That

alone is not enough to doom Winston’s petition; Williams

v. Taylor holds that an unreasonable application of law

exists “if the state court either unreasonably extends a

legal principle from our precedent to a new context

26 No. 10-1156

where it should not apply or unreasonably refuses to

extend that principle to a new context where it should

apply.” 529 U.S. at 407 (emphasis added). In other words,

where the legal principle compels a certain outcome,

AEDPA does not require the facts to conform to “some

nearly identical” pattern before relief is possible. Panetti,

551 U.S. at 953. We must therefore decide if the state

courts here acted unreasonably, as Williams requires.

As we have already explained, the legal principle at

stake here is the one calling for automatic reversal in

response to proven Batson violations. It is true that

Winston has not raised a direct Batson complaint (be-

cause the failing was that of his own lawyer); instead

he complains of ineffective assistance of counsel. But

rules of automatic reversal are not unknown in the

Sixth Amendment context. Strickland itself teaches

that there are times when prejudice is so likely that “case-

by-case inquiry into prejudice is not worth the

cost”—“prejudice is presumed.” 466 U.S. at 692. Granted,

instances of presumed prejudice are rare, but several

are well established: when counsel is not present at a

“critical stage” of a hearing, see United States v. Cronic, 466

U.S. 648 (1984), including situations where “counsel

has entirely failed to function as the client’s advocate,”

Florida v. Nixon, 543 U.S. 175, 190 (2004); when a defense

lawyer has an actual conflict of interest, see Cuyler v.

Sullivan, 446 U.S. 335 (1980); when a criminal defendant

does not receive appointed counsel on direct appeal, see

Penson v. Ohio, 488 U.S. 75 (1988), or when a non-pro se

defendant is denied counsel of her choice, see United

States v. Gonzalez-Lopez, 548 U.S. 140 (2006). The same

No. 10-1156 27

result, in our view, must hold for Batson errors, in light of

the Supreme Court’s teachings in Hillery and the other

cases we discussed earlier. Unconstitutional juror

strikes, like other structural errors, create the kind of

problem that “def[ies] analysis by harmless error stan-

dards.” Neder, 527 U.S. at 7; see Hillery, 474 U.S. at 262.

If this is a strong message from the Supreme Court,

however, it must yield to an even stronger command:

when federal courts are applying section 2254, they must

respect the line between applications of existing

principles to new situations and extensions of the law.

While we are persuaded that prejudice automatically

flows from a deliberate Batson violation, we recognize

that the Supreme Court of the United States had not yet

taken this step at any point while Winston’s case was

before the Wisconsin courts. Indeed, our own decision

in Boyd contains dicta that suggests that something like

the Martinez-Salazar inquiry should apply here, 86 F.3d

at 722. A division of authority in the lower courts

provides some evidence that the matter has not yet

been clearly established by the Supreme Court. And the

lower courts were indeed divided on this point. See, e.g.,

Henderson v. La Marque, 2002 WL 1034047, at *11 n.3 (N.D.

Cal. May 15, 2002); compare Boyd, 86 F.3d 719 (requiring

a defendant to demonstrate ineffective assistance for a

Batson-McCollum violation), with United States v. Huey,

76 F.3d 638 (5th Cir. 1996) (granting a new trial, with-

out any showing of ineffective assistance, for a proven

Batson-McCollum violation). It was not until Rivera,

decided over a decade after Boyd and Huey and two

years after Winston II, that the Supreme Court explained

28 No. 10-1156

that a Martinez-Salazar problem is fundamentally dif-

ferent from a proven Batson violation. The former is

amenable to harmless-error analysis, but the latter calls

for automatic reversal. The Martinez-Salazar rule concerns

peremptory challenges, which are merely “ ‘a creature of

statute’ ” and address a procedure to which a defendant

has “no freestanding constitutional right.” Rivera, 129 S. Ct.

at 1454 (quoting Ross v. Oklahoma, 487 U.S. 81, 89 (1988)).

By contrast, Batson cases are “automatic reversal prece-

dents” because they “involve[] constitutional errors con-

cerning the qualification of the jury.” Id. at 1455.

But Rivera lay in the future at the time the Wisconsin

courts acted. It was not outside the boundaries of reason-

able differences of opinion, given the state of the law at

the time, for those courts to predict that the Supreme

Court would apply a harmless-error standard even to

intentional Batson violations like the one committed by

Winston’s lawyer. We therefore A FFIRM the judgment

of the district court denying Winston’s section 2254

petition.

8-19-11