David Minnick v. Dan Winkleski

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 20‐3253

DAVID MINNICK,

Petitioner‐Appellant,

v.

DAN WINKLESKI, 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.

____________________

ARGUED MAY 12, 2021— DECIDED SEPTEMBER 21, 2021

____________________

Before FLAUM, HAMILTON, and BRENNAN, Circuit Judges.

BRENNAN, 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 confinement. 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 ineffective for advising him

that a term of not more than ten years of initial confinement

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 offering that argument did not deny Minnick

the right to effective postconviction counsel.

Although Minnick’s claims could have been analyzed dif‐

ferently—including whether the state court’s decision on his

trial counsel’s sentencing advice warranted deference under

the Antiterrorism and Effective Death Penalty Act (AEDPA),

28 U.S.C. § 2254—the correct result was reached. We affirm

the denial of habeas relief.

I

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

for another man, Minnick retrieved a rifle and struck her in

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

Minnick followed, firing 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, Minnick

was charged in Kenosha County Circuit Court with aggra‐

vated battery, attempted first‐degree murder, and several

counts of first‐degree reckless endangerment and attempted

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 suffers. He later

withdrew that plea and agreed to plead no contest to the

No. 20‐3253 3

crimes (except for the attempted murder charge, which was

dismissed and read‐in) and leave sentencing up to the court.

This exposed Minnick to 73 years of initial confinement.1 The

presentence investigation report recommended Minnick re‐

ceive between 16 and 22½ years of initial confinement. At the

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

finement, and Minnick’s trial counsel, Laura Walker, asked

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

initial confinement followed by 14 years 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 ineffective

assistance of counsel. An attorney is constitutionally ineffec‐

tive if she performs deficiently 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

Walker testified.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 FED. SENT’G REP. 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 testified 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 qualified 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 affirmed this decision in

2015. That court ruled: “Minnick has shown no more than 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 filed a collateral attack in state court under

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

ineffective 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 first appeal, he argued the state court could

consider it because his postconviction counsel Zell was con‐

stitutionally ineffective 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

3Under Wisconsin law, a presentencing plea withdrawal motion is

considered under a “fair and just reason” standard, State v. Jenkins, 736

No. 20‐3253 5

For habeas petitioners who allege they received ineffective

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 omitted).

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

testified that the claim he raised about Walker’s sentence esti‐

mate was stronger than arguing Walker was ineffective 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

well‐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 ineffective assistance of counsel claim. The appeals

court concluded that Zell had not performed deficiently, rul‐

ing that the plea withdrawal argument was not clearly

stronger than the argument Zell offered. Zell was aware of the

law underlying a plea withdrawal motion, and more factors

favored the claim Zell made that Walker 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 ineffec‐

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 Wisconsin Supreme

Court denied review of Minnick’s collateral attack.

Minnick then filed this federal habeas corpus petition un‐

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

1. Walker was ineffective for saying that if Min‐

nick accepted the plea deal, he would re‐

ceive only ten years of initial confinement;

2. Walker was ineffective for not advising Min‐

nick that he could withdraw his plea before

sentencing; and

3. Zell was ineffective for not making the plea

withdrawal argument in Minnick’s first ap‐

peal.

On the first 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 first claim on the

merits, and that as a result, its decision was not entitled to def‐

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

the district court denied the first claim because Walker had

not shown bad faith, her estimate was not inconsistent with

other cases, and there was no suggestion that her estimate was

a gross misjudgment.

No. 20‐3253 7

The district court reviewed the second claim through the

lens of ineffective 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

Wisconsin Court of Appeals adjudicated the ineffective

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 moved 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 certificate of appealability on two issues: whether Min‐

nick was denied effective assistance of counsel based on

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

plea withdrawal argument.

II

We first examine whether Minnick is entitled to habeas

relief for his claim that his trial counsel Walker was constitu‐

tionally ineffective when she told Minnick he was “likely” to

receive no more than ten years of initial confinement. 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).

A

8 No. 20‐3253

On this first 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 (7th 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. Winfield 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 different

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

sentence constituted ineffective assistance. If Minnick’s claim

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

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

required for AEDPA deference. Winfield, 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 claim 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 a

No. 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 means. Minnick’s appeal comes to us as a

collateral attack 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 the 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) reflects 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 “diffi‐

cult to meet and highly deferential.” Makiel v. Butler, 782 F.3d

882, 896 (7th Cir. 2015) (internal quotation marks omitted). Re‐

lief is precluded “so long as fairminded jurists could disagree

10 No. 20‐3253

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

562 U.S. at 101 (internal quotation marks omitted).

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 reflect a ‘presumption that state courts know and

follow the law.’” Woods v. Donald, 575 U.S. 312, 316 (2015)

(quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per cu‐

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

eral review, federal judges are required to afford 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 ineffective assistance of counsel claims. Titlow, 571

U.S. at 19.

For an ineffective assistance of counsel 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 federal courts must give “both the state court and the

defense attorney the benefit of the doubt.” Titlow, 571 U.S. at

15. Even without AEDPA, ineffective assistance of counsel

claims remain difficult to prove, as “counsel is strongly pre‐

sumed to have rendered adequate assistance and made all

significant 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 ineffective assistance of coun‐

sel during the plea process is governed by the Strickland

standard. See Lafler v. Cooper, 566 U.S. 156, 162–63 (2012). To

be deficient, 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 omitted). In the plea‐

bargaining context, the prejudice prong is satisfied 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.” Lafler 566 U.S. at 163 (internal quo‐

tation marks omitted). 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 first

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

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

deficient performance prong of Strickland, so we confine 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 attor‐

ney’s sentence miscalculations could never result in constitu‐

tionally deficient performance. True, the Supreme Court has

instructed that Strickland requires a “circumstance‐specific

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 in

12 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 deficient performance” because “the

sentencing consequences of guilty pleas (or, for that matter,

guilty verdicts) are extraordinarily difficult 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 suffice to demonstrate deficient performance unless the

inaccurate advice resulted from the attorney’s failure to un‐

dertake a good‐faith analysis of all of the relevant facts and

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

constitute deficient performance if it is a gross miscalculation

and there is evidence of the attorney’s bad faith. Id.; see also

United States v. Martinez, 169 F.3d 1049, 1053 (7th Cir. 1999).

In its 2015 opinion, the Wisconsin 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 might be grounds

for deficient 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 deficiently.

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 confinement

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

difference between the initial confinement term she estimated

No. 20‐3253 13

and the range in the presentence investigation report (10 years

versus 16–22½ 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 Walker 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 improperly 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 omitted). Because the

Wisconsin 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 deficient performance is consistent with Strick‐

land’s presumption of deference to attorneys.

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 not

14 No. 20‐3253

establish deficient performance. Under AEDPA, that decision

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

first 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 ineffective 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 ineffective 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 ineffective assistance of postconviction

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

we do so for different reasons. The third claim is included in

the certificate of appealability, our charge for this appeal. In

addition, although the district court concluded that the gov‐

ernment waived the procedural default argument, that court

No. 20‐3253 15

essentially treated Minnick’s second claim—that Walker was

ineffective 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‐

tificate of appealability on the third claim. The parties also ap‐

pear to treat 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 ineffective 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 ineffective assistance of ap‐

pellate counsel). Initially, Minnick argues that the Wisconsin

Court of Appeals applied the wrong standard when it limited

its deficiency inquiry to whether the claim Zell failed to press

was clearly stronger than the argument he raised. Per 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

deficient 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 attorney “abandoned a nonfrivolous claim that was both

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

tually presented, [her] performance was deficient, unless

[her] choice had a strategic justification”); Makiel, 782 F.3d at

898. These authorities do not admit of the distinction Minnick

16 No. 20‐3253

advances between intent and negligence in postconviction

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

appellate counsel “testified that she could not remember spe‐

cifically considering and rejecting these issues.”) (internal

quotation marks omitted). As the district court recognized,

the clearly stronger standard does not impermissibly add to

the Strickland test, but instead applies the deficiency 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 deficient performance prong of the Strickland

evaluation.

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

a claim that was raised is generally difficult ‘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 first was its evalua‐

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

The second was Zell’s understanding that Minnick would

have difficulty 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, Walker did not perform deficiently in failing to ad‐

vise Minnick to file 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 (Wis. 1995) (“A

No. 20‐3253 17

fair and just reason is some adequate reason for defendantʹs

change of heart … other than the desire to have a trial.”) (in‐

ternal quotation marks omitted).

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; instead

“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 attorney

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

afforded to the prosecution—and, more importantly, to the

court—and Minnick confirmed 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 sufficient 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 differ based on the timing of the motion does not

suggest which ineffective assistance of counsel claim is

stronger. What matters 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 sufficiency‐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 Wisconsin 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 not

No. 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 that the claim attorney 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 deficient‐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 AEDPA. 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 AF‐

FIRM the judgment of the district court denying his request for

habeas relief.